IN THE SUPREME COURT OF FLORIDA

PRELIMINARY STATEMENT

Citations in this brief to designate references to the records, followed by the appropriate page number, are as follows:

"R. ___" - Record on direct appeal to this Court;

"PC-R. ___" - Post conviction record on appeal

"PC-T. ___" - Evidentiary hearing transcript

"D-Ex. __" - Defense exhibits entered at the evidentiary hearing and made part of the post conviction record on appeal.

"S-Ex. __" - State exhibits entered at the evidentiary hearing

All other citations will be self-explanatory or will otherwise be explained.

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES v

REPLY ARGUMENT I

A. Giglio Violation 1

1. Legal Standard 1

2. The False and/or Misleading Evidence and/or

Argument 3

a. Regarding Mr. Mordenti’s Knowledge of

Larry Royston 3

b. Regarding Gail’s Immunity 5

c. Regarding Gail’s Employment at T & D

Auto Repair 10

d. When Gail Received the Gun and

Bullets 13

e. Mr. Mordenti’s "Involvement" with

Bank Robbers 16

f. Horace Barnes & Tracey Leslie 19

h. Hotel Name 22

3. Cumulative consideration 23

B. Brady claim

1. Legal Standard 23

2. The Circuit Court Misstated and Misapplied

the Law 24

3. The Withheld Exculpatory Evidence.

a. Gail Mordenti Milligan’s Date Book. 25

b. Undisclosed Interview of Michael

Milligan 32

c. Undisclosed Interviews of Gail. 34

d. Statement of Royston’s Attorney 35

CONCLUSION 35

TABLE OF AUTHORITIES

Case Page

REPLY ARGUMENT I

In its Answer Brief, the State relies upon Rose v. State, 774 So. 2d 629, 635 (Fla. 2000), as establishing that for Giglio error to be reversible the false or misleading nature of the evidence "put[s] the case in such a different light as to undermine confidence in the verdict." Answer Brief at 28. However, this Court has recently recognized that the language in Rose was erroneous:

We recede from Rose and Trepal [v. State, 846 So. 2d 405, 425 (Fla. 2003)] to the extent that they stand for the incorrect legal principle that the "materiality" prongs of Brady and Giglio are the same.

Guzman v. State, 28 Fla. L. Weekly S829, 2003 Fla. LEXIS 1993 *16 (Fla. 2003). This Court proceeded to explain, "[t]he State as beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt." Id. at *18. This Court explained that this is a "more defense friendly standard" than the one used by the State in its Answer Brief or by the circuit court below. Id. at *19.

Moreover, the circuit court employed the wrong standard in reviewing Mr. Mordenti’s Giglio claim as well. The circuit court relied upon this Court’s formulation of the Giglio standard that was set forth in Ventura v. State, 794 So. 2d 553, 562 (Fla. 2001). (PC-R. 1409). However, in Guzman, this Court specifically recognized that the Giglio test set forth in Ventura v. State was erroneous in that it employed the materiality standard from Brady as applicable to Giglio claims instead of requiring the State to prove that the presentation of false or misleading evidence was harmless beyond a reasonable doubt.

The State in its Answer Brief also misrepresents the import of the decision in Alcorta v. Texas, 365 U.S. 28 (1957), cited in the Initial Brief. Answer Brief at 29. In Alcorta, the United States Supreme Court held that to establish a due process violation it was not necessary to prove that the challenged testimony was technically false. Due process was violated where the testimony in question "taken as a whole, gave the jury the false impression that his relationship with petitioner’s wife was nothing more than casual friendship. This testimony was elicited by the prosecutor who knew of the illicit intercourse between [the witness] and petitioner’s wife." Alcorta v. Texas, 365 U.S. at 31 (emphasis added). As has been explained elsewhere, "[t]he term ‘false evidence’ includes the ‘introduction of specific misleading evidence important to the prosecution’s case in chief . . . .’ Donnelly v. DeChristoforo, 416 U.S. 637, 638 (1974)." Troedell v. Wainwright, 667 F. Supp. 1456 (S.D. Fla 1986).

2. The False and/or Misleading Evidence and/or Argument.

As to Mr. Mordenti’s claim that the prosecutor made false representations to the jury regarding his February 1990 statement to law enforcement, the State in its Answer Brief "denies that there was any prosecutorial misconduct or a denial of due process." Answer Brief at 25. In support of this assertion, the State relies upon Detective King’s trial testimony that on July 13, 1989, Mr. Mordenti was questioned about a June 7th phone call from Larry Royston’s mobile phone and indicated that "[h]e had never heard of the Roystons and didn’t know anything about it" (R. 497).

However, King’s testimony as to Mr. Mordenti’s statement in July of 1989 hardly constitutes support for the accuracy of the Ms. Cox’s closing argument at the trial, wherein she stated:

And when [Michael Mordenti] was questioned again in February of 1990, "No, I don’t know Larry Royston. I’ve never heard of Larry Royston."

 

But lo and behold, when Gail calls him on the phone, despite his repeated denials of ever having even

heard of the man, Gail says, "Oh, should I - - should I call Larry?"

"No, don’t call him." He doesn’t say, "Larry who? What are you talking about?"

(R. 1195)(emphasis added). The prosecutor relied on her false argument to conclude her initial closing:

The actions of Gail Mordenti show you that she’s telling the truth, and the actions of Michael Mordenti in his repeated denials of ever knowing or even hearing of Larry Royston, show you beyond any reasonable doubt that she’s telling you the truth.

(R. 1201)(emphasis added).

The prosecutor acknowledged at the 2001 evidentiary hearing that at trial she had possession of D-Ex. 5, a police report, introduced at the evidentiary hearing (PC-T. 23). According to D-Ex. 5, Michael Mordenti was interviewed on February 20, 1990, and he "state[d] he has never met Larry Royston but has heard of him via Gail. In fact he advised his daughter went to work for Larry after the murder." (Emphasis added).

The prosecutor deliberately misrepresented Mr. Mordenti’s February 1990 statement to the police to then falsely argue that, "[t]he actions of Gail Mordenti show you that she’s telling the truth, and the actions of Michael Mordenti in his repeated denials of ever knowing or even hearing of Larry Royston, show you beyond any reasonable doubt that she’s telling you the truth" (R. 1201). Miller v. Pate, 386 U.S. 1, 6 (1967)(due process violated where "[t]he prosecution deliberately misrepresented the truth").

The State in its Answer Brief fails to address the fact that the jury and even this Court on direct appeal were misled by Gail Mordenti Milligan’s false testimony as to the extent of her immunity, and by the prosecutor’s closing argument, "She has immunity for this crime" (R. 1193). After reviewing the record, including the testimony of Gail Mordenti Milligan and the prosecutor’s closing argument, this Court indicated in its direct appeal opinion, "[f]or her testimony, Gail Mordenti was offered complete immunity." Mordenti v. State, 630 So. 2d 1080, 1083 (Fla. 1994). In fact, Gail testified at trial, "as long as I told the truth, that I had total immunity" (R. 661). The trial prosecutor stated in her closing, "she has immunity for this crime" (R. 1193).

In its Answer Brief, the State asserts that Gail Mordenti Milligan was told and understood "that if she didn’t tell the truth she could be prosecuted for murder and conspiracy." Answer Brief at 13. Again later, the State says, "[s]he understood that if she didn’t tell the truth she could be prosecuted for the crime of first degree murder." Answer Brief at 27. But of course, that is the definition of transactional immunity. And that is the immunity that she was not provided.

Moreover, the use immunity that Gail received resulted from the State Attorney subpoena that was served upon her. However, Gail testified at trial that when she was picked up by Detective Baker and Detective Kroll on March 8, 1990, "they said they had the power - - that they could grant me immunity if I would tell them everything that I knew, and I said that if they could do that, then I would tell them everything that I knew about it, and they said fine. And then nothing else was said until we got here" (R. 701). Gail was asked by trial counsel, "if I understand it, that they approached you regarding the issue of immunity, and you did not approach them asking for immunity." (R. 701). Gail responded, "that’s correct" (R. 701). Gail explained that "Lee Atkinson [a prosecutor] read a paper to me and explained to me exactly what immunity meant; that I would not be prosecuted as long as I told the whole truth; that if I lied about anything, or I left anything out, that I could then be prosecuted. But as long as I told the truth, that I had total immunity." (R. 661)(emphasis added).

The trial prosecutor did not correct this false testimony. The police did not have the power to bestow immunity. The subpoena that was served carried use immunity with it. And Lee Atkinson did not grant Gail any immunity. As he explained at the 2001 evidentiary hearing, "she had use immunity by virtue of that subpoena" (PC-T. 252). "Once I put her under oath, pursuant to that subpoena, and started the process of taking that sworn testimony, she had immunity for its use against her for any purpose" (PC-T. 253). Mr. Atkinson testified:

Any other agreement with any witness that we would have had in any homicide, particularly a capital case, would have been in writing, either in a specific contract or in a plea bargain that was placed on the record in front of a Judge. * * * In this instance, to my knowledge, Ms. Mordenti would have had explained to her that she was not immune from prosecution, and, in fact, unless she got something in writing to the contrary, what she got is what’s reflected in the statute, use immunity.

(PC-T. 255)(emphasis added). He categorically concluded, "the fact was she was not receiving any transactional immunity, nor was she promised any transactional immunity" (PC-T. 255)(emphasis added).

The trial prosecutor, Ms. Cox, was aware that Gail had not been granted "total" immunity. In 2001, she testified that Gail only had "use immunity." (PC-T. 26). Gail had no immunity "other than what immunity being under subpoena covers." (PC-T. 69). Yet, Ms. Cox argued to Mr. Mordenti’s jury, "She has immunity for this crime." (R. 1193)(emphasis added).

But in addition, the State knew from a police report that it was Gail who sought to negotiate with the police regarding immunity from prosecution. Det. Baker testified in 2001:

Q. Okay. And I just wanted to point out in this report [Def Exh. 6], there’s an indication that Ms. Mordenti advised that she knew more about the homicide than she originally told us, that she would cooperate if given immunity for prosecution. Do you recall that happening?

A. Asking for immunity?

Q. Or indicating that she would cooperate if she got immunity.

A. I remember her asking that question, yes.

Q. Okay. And that was in the vehicle on the way to the state attorney’s office?

A. That’s correct.

Q. So she communicated that she would like immunity?

A. Yes.

(PC-T. 788).

At Mr. Mordenti’s trial, the prosecutor did not correct the false and misleading testimony. In fact, she relied upon it as evidence enhancing Gail’s credibility. Ms. Cox argued to Mr. Mordenti’s jury that "before [Gail] was promised immunity, she asked about, ‘What’s going to happen to me? Can I go to jail?"(R. 1192-93)(emphasis added). Ms. Cox argued that Gail’s conduct was "clearly the act of somebody who was so upset that they are not being calculating; that they are not thinking of their own best interest, because she didn’t - - she had no guarantees at that point of anything." (R. 1193)(emphasis added). And the prosecutor affirmatively advised the jury that Gail "has immunity for this crime" (R. 1193).

The testimony and the representation in the closing argument were knowingly false. Due process was violated. Miller v. Pate, 386 U.S. at 6 (due process violated where "[t]he prosecution deliberately misrepresented the truth"). Under Guzman, this false testimony and argument was not harmless beyond a reasonable doubt.

The State asserts that the prosecutor properly argued "that the phone records showed Royston made numerous phone calls to T & D." Answer Brief at 31. Actually, over Mr. Atti’s objection, the prosecutor argued in her closing that Larry Royston’s cell phone records showing phone calls to T & D Auto Repair in the month of May were relevant and corroborative of Gail’s testimony that Mr. Royston kept calling her: "you’ll see that Larry Royston places numerous telephone calls to T & D. In May - - Gail Mordenti was working there in May." (R. 1253-54). The representation made in the closing was that Gail was working at T & D in May 1989. This was necessary to show that the phone calls to T & D were of any relevance and to bolster Gail’s claim that Royston was calling to pressure her to arrange the murder. The value of the phone records is reduced to zero if Gail was not there when the phone calls were made. Defense counsel specifically objected to the argument, saying that Gail did not start working at T & D until June. Mr. Atti stated while making his objection, "There is no evidence that he was necessarily calling Gail; he could have been calling Glen Donnell about cars. We’re assuming a fact not evidence, that he called. The testimony from Glen Donnell and Gail Mordenti was that she started working there around June 1^st." (R. 1252-53). The objection was erroneously overruled. In her 2001 testimony, Gail reiterated that she started June 1st. The prosecutor’s argument was false.

The circuit court denied relief as to this false assertion, saying, "Defendant has failed to demonstrate that the statement of when Gail Mordenti started working at T & D was material." (PC-R. 1412). However, this Court made it clear in Guzman that it is the State’s burden to prove that the false argument was harmless beyond a reasonable doubt. This has not been demonstrated by the State. The false argument was made during the closing argument to provide false corroboration to Gail’s testimony which was the sole basis for the conviction.

As the State acknowledges in its Answer Brief, the circuit court found that as to the false evidence regarding Gail’s pre-trial statement that she received the gun and the bullets before the murder, "[t]his may have provided impeachable material for the defense, but it would not rise to the level of a Giglio violation as Defendant has failed to demonstrate that such a fact was material." Answer Brief at 32, quoting circuit court order at PC-R. 1416. Clearly, the circuit court imposed the burden upon Mr. Mordenti to establish prejudice. However, this Court explained in Guzman v. State, "[t]he State as beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt." Guzman, 2003 Fla. LEXIS 1993 at *18.

In arguing that no prejudice flowed from the false evidence, the State says, "it matters not whether Mordenti provided the gun to Gail before or after the homicide; it was not the murder weapon." Answer Brief at 34. However, at trial, the State introduced expert testimony that the bullets accompanying the gun were a compositional match to the fatal bullet and therefore the fatal bullet had been in the box of bullets provided by Mr. Mordenti to Gail (according to Gail) (R. 1211). The State was contending that Gail’s testimony on the point was essential to establish who had possession of the gun and the accompanying bullets at the time of the homicide. In her closing argument, the trial prosecutor falsely argued, "[b]ut those bullets came from him. Gail says he gave her that gun loaded, so the bullets that were recovered from Gail’s gun came from Michael Mordenti" (R. 1254). That was why defense counsel described the true evidence that the jury did not hear as "absolutely pivotal." (PC-R. 563-64).

The circuit court denied relief, saying, "Defendant has failed to prove that this was a ‘material’ fact as it is not alleged that ‘the gun’ was the murder weapon." (R. 1416). However, this Court made it clear in Guzman that it is the State’s burden to prove that the false argument was harmless beyond a reasonable doubt. The false evidence was used to tie in the relevance of the FBI lead bullet analysis. Certainly, the State cannot demonstrate that the introduction of FBI testimony regarding a compositional match between the bullets with the gun and the bullet removed from the victim’s body was harmless beyond a reasonable doubt.

e. Mr. Mordenti’s "Involvement" with Bank Robbers

Further use of this misleading representation was made by the prosecution to lead the jury to erroneous inferences. In her closing argument, the prosecutor replayed the tape of Gail’s phone call to Mr. Mordenti that was made as an agent of the State on March 8, 1990. Before replaying the tape, the prosecutor told the jury to listen because "he’s very cagey on that phone conversation, he never admits anything flat-out, but you can read between the lines, and you can see from what he says and how he says it that he’s involved. And he knows what’s going on, and he’s concerned" (R. 1196)(emphasis added).

During the taped conversation that was introduced into evidence at trial, the following exchange occurred:

[GAIL]: Well, Michael, I’ve got a subpoena from the State Attorney’s Office. I mean, we’re not - - you know, they’re not playing games here. I mean, you know - -

[MR. MORDENTI]: What do you want me to say? I don’t know what to tell you. I was just talking to my friend. He’s sitting right here now. He told me that they are also gonna subpoena Michael [Milligan].

[GAIL]: Michael who?

[MR. MORDENTI]: Your Michael [Milligan].

[GAIL]: My Michael?

[MR. MORDENTI]: That’s what I heard.

[GAIL]: They’re going to subpoena him for what?

[MR. MORDENTI]: That’s what I heard.

[GAIL]: Oh, Michael, I am really upset about this, you know.

[MR. MORDENTI]: Stay cool. There’s nothing to worry about. You didn’t do anything.

[GAIL]: Well, yeah, if they subpoena Michael, Michael’s crazy.

* * *

[GAIL]: Now, (sigh) what if - - what if - - yeah, but what if - - you know, I don’t know. What if they have information that I - -

[MR. MORDENTI]: They have nothing.

[GAIL]: They have nothing?

[MR. MORDENTI]: Nothing.

[GAIL]: That’s what your friend says?

[MR. MORDENTI]: They’re on a fishing expedition, as usual.

[GAIL]: You’re sure?

[MR. MORDENTI]: They - - positive. They figured - - I don’t want too say too much on this phone. I’d rather - - why don’t you meet me at the sale tonight, and I’ll tell you everything point blank.

As to the presentation of Horace Barnes’ false testimony, the State focuses upon this Court’s direct appeal discussion of Mr. Barnes’ testimony that Mr. Mordenti had indicated that he was in the mob. Answer Brief at 36. This Court found the admission of Barnes’ testimony to be error, but ruled that "the elimination of the cellmate’s testimony would not have changed the outcome." Mordenti v. State, 630 So. 2d at 1085.

Clearly, this Court was misled by the State as to who Horace Barnes was and his relationship with Mr. Mordenti. He was not a cellmate of Mr. Mordenti. He was a bank robber who was apprehended and prosecuted by federal authorities as a result of the assistance provided by Mr. Mordenti. Barnes in fact testified to more than merely the "mob" comment. He testified that he was federally incarcerated as a result of a federal prosecution in Tampa (R. 746). He testified that he was receiving no consideration for his testimony and that he was not "promised anything" for his testimony (R. 746). He testified that he knew Michael Mordenti, and he identified him in the courtroom (R. 746). He testified that he met Michael Mordenti in October or November of 1989 (R. 747). According to Barnes, Mr. Mordenti identified himself by letting Barnes "know that he was in the mob" (R. 747). He testified that he went to see Mr. Mordenti "at his car lot in St. Petersburg" (R. 750). He testified that he went there with a Joel Darden and observed "Darden purchase a gun from Mr. Mordenti" (R. 750).

In 2001, Mr. Barnes was called as a witness by Mr. Mordenti and not only acknowledged that his story was entirely made up to get back at Mr. Mordenti for helping the FBI apprehend him, but also revealed that Ms. Cox had in fact promised him consideration

for his testimony (PC-T. 294-97).

Not only did the State use the false evidence to assassinate Mr. Mordenti’s character, its lies and manipulation of the evidence itself impeaches the credibility of the prosecution’s actions in the case. Kyles v. Whitley, 514 U.S. 419, 446 (1995). Due process was violated. "The prosecution deliberately misrepresented the truth," thereby violating due process. Miller v. Pate, 386 U.S. at 6. Given the manner in which Ms. Cox asked the jury to "read between the lines," the deliberate misrepresentation of the truth cannot be shown by the State to be harmless beyond a reasonable doubt.

In a motion for new trial, Mr. Mordenti’s attorneys complained that they were never given the name of this hotel and believed that a Richardson violation occurred (R. 1561). In its Answer Brief the State asserts that because "there was no false testimony," there can be no due process violation under Giglio. However, the United States Supreme Court has held otherwise. In Gray v. Netherland, 518 U.S. at 165, the Supreme Court found deliberate deception of defense counsel qualified as a due process violation under the Giglio line of cases. Here, the defense attorneys were deliberately deceived, as trial counsel explained in a written a memo documenting that "[t]he name of the motel wasn’t disclosed to us. We couldn’t go and look." (PC-T. 901, D-Ex. 68).

3. Cumulative consideration.

The State does not address, let alone contest, Mr. Mordenti’s argument that the circuit court erred in failing to give cumulative consideration to the numerous instances of false and/or misleading evidence and argument. These instances of false and/or misleading evidence and argument compounded each other. A new trial is required.

The State argues that "due diligence" is an element of a Brady claim that the defense must prove. However, in a footnote, the State says, "whether the test is deemed three-fold or four-fold or whether the distinction is termed a semantic difference makes no difference. As explained in the test, appellant is not entitled to relief. The lower court analysis did not improperly turn on defense ‘diligence.’" Answer Brief at 43 n. 12. Thus, the State seems to concede that "diligence" of trial counsel is not at issue, even though the State erroneously maintains that it is an element of a Brady claim.

The State does not address, let alone contest, Mr. Mordenti’s argument that the circuit court erred in failing to give cumulative consideration to the numerous documents and the multitude of information withheld by the State. The Supreme Court held in Kyles v. Whitley, 514 U.S. 419, 446 (1995), that withheld exculpatory information is not to be analyzed item by item in a piecemeal fashion, but rather collectively. See Cardona v. State, 826 So.2d 968, 973 (Fla. 2002).

a. Gail Mordenti Milligan’s Date Book.

The State does not contest that Gail Mordenti Milligan’s date book was in the possession of the trial prosecutor and was not disclosed to Mr. Mordenti’s trial counsel. The only question at issue is whether this nondisclosure was material within the meaning of Kyles.

Of course under Kyles, the required evaluation must be conducted of all of the withheld exculpatory evidence, a matter conveniently overlooked by the State. Ignoring that requirement for the moment, it is also clear that the State fails to address the full impact of the information contained in the date book on Gail’s trial testimony. As the trial prosecutor testified in 2001, Gail’s credibility "was a very important issue, yes, it was" (PC-T. 714). She also conceded, "if there were statements under oath that she made that were not true," that constituted "impeachment" of Gail’s testimony (PC-T. 714-15).

The importance of Gail’s credibility is also revealed by the trial prosecutor’s closing argument. At the outset of the closing, the trial prosecutor said:

So, really the only issue in this case is whether or not Michael Mordenti is the man involved.

Michael Mordenti is the one who conspired with Larry Royston and caused Thelma Royston’s death on June 7^th, 1989. The only law that I’m going to specifically discuss with you that is important for you to listen to is the judge is going to tell you that a juror may believe or disbelieve any or all of the testimony of a witness, and that’s your sole job.

So, just the fact that someone comes in here and states under oath that something happened doesn’t mean that you have to believe it. It’s your job to judge the credibility of the witnesses.

And I hope during this trial I’ve assisted you in your job, and assisted you in evaluating the credibility of the witnesses who have come and testified under oath.

(R. 1177-78). The prosecutor’s initial closing ended with an argument that the case came down to a question of who was telling the truth, Gail Mordenti Milligan or Michael Mordenti:

The actions of Gail Mordenti show you that she’s telling the truth, and the actions of Michael Mordenti in his repeated denials of ever knowing or even hearing of Larry Royston, show you beyond any reasonable doubt that she’s telling the truth.

(R. 1201)(emphasis added).

The date book that was in the prosecutor’s possession establishes that Gail Mordenti Milligan’s testimony was filled with falsehoods and that the trial prosecutor had not assisted anyone in receiving the necessary information to fully evaluate Gail’s credibility.

The date book revealed that the luncheon between Gail and Larry Royston at which the solicitation of murder happened was April 11, 1989. Thus, no actions in the furtherance of the murder occurred prior to April 11^th. This means the following testimony was demonstrably false as to its stated timing:

– After she left her job with Automotion in February of 1989, Gail needed to find work, so she called Larry Royston and arranged the luncheon for "either late February, or the beginning of March" in order to see if he would invest in a business (R. 609-10).

– After Larry revealed that he had no money to invest unless and until his wife was killed, Gail approached "three people" about killing Royston’s wife (R. 612). The three individuals, Jack Gartley, Jerry Carter, and Bill "it’s Rosenthal or Rosenfield" were approached "within a couple weeks," – "I think, in February, the beginning of March, and it was probably within a couple of weeks after that" (R. 675).

– When those three individuals turned her solicitation down, Gail called Michael Mordenti who indicated his interest (R. 614). Gail called Larry to tell him, but he instructed her that he did not want to know the name of the man who was going to do it. These conversations happened after the start of March (R. 616), but before Gail accompanied Mr. Mordenti to a motel near Larry’s residence that occurred before the end of March (R. 677).

– In preparation for the murder Gail met Mr. Mordenti at a "Perkins Pancake House" (R. 617), and then rode in his car in the daylight to check out the lay out of Larry’s residence (R. 619). This occurred before a night time trip that in turn occurred before the end of March (R. 677).

– Before the end of March of 1989 (R. 677), Mr. Mordenti picked up Gail at 1:30 a.m. (R. 620) and drove to a motel near Larry’s residence and checked in (R. 620). After spending time in the motel room, Gail took Mr. Mordenti to near Larry’s house so he could check it out for a couple of hours (R. 621). Gail picked him up at about six a.m. and returned home (R. 625).

– When she and Mr. Mordenti went to the motel before the end of March, Michael Milligan who moved in with her "either the end of March or beginning of April" (R. 677), was not living with Gail (R. 682).

– When she and Mr. Mordenti went to the motel before the end of March, Gail’s daughter Wendy and her boyfriend were living with Gail (R. 680), and according to her deposition Wendy lived with Gail while they both worked at Automotion (D-Ex. 26, at 12).

– After the night that occurred before the end of March when they checked into the motel, Mr. Mordenti advised that the murder could not be done and that he would not do it (R. 625, 627), and Gail relayed this to Larry who refused to accept this answer, so Gail told Larry to stop calling her (R. 627).

The fact that Gail’s testimony could have been shown to be untruthful in light of the date book that she had given to the trial prosecutor raises questions about the seriousness with which the prosecutor took Gail’s promise to provide truthful testimony pursuant to her immunity. It provides a basis for turning around the principle theme of the prosecutor’s closing:

The actions of Gail Mordenti show you that she’s telling the truth, and the actions of Michael Mordenti in his repeated denials of ever knowing or even hearing of Larry Royston, show you beyond any reasonable doubt that she’s telling the truth.

(R. 1201)(emphasis added).

But the date book does more than impeach Gail and the State’s case. Its disclosure is necessary to conduct meaningful investigation for evidence that refutes that the events that Gail claimed happened. By not revealing to the defense the one item in its possession that demonstrated that Gail’s time line was completely false, the State effectively shut down the defense’s ability to link up other evidence that showed the events did not happen. For example, the date book reveals that Gail was living with Michael Milligan by the time of the April 11^th luncheon (Q. And when was it that you started living with Michael Milligan? A. It was either the end of March or beginning of April." (R. 677)). This fact casts new light on the credibility of Gail’s claim that several weeks later Michael Mordenti came over at 1:30 a.m. to get her out of bed and take her to a motel (PC-T. 905). Certainly, it makes Michael Milligan an absolutely critical witness, as trial counsel testified in 2001 (PC-T. 905-08).

Similarly, the April 11^th date suddenly links the luncheon with Gail’s pre-scheduled interview on April 12^th, when she gave a taped statement regarding Fortune Bank’s claim that it was owed $191,812.00 by Automotion, Inc., pursuant to an agreement that Gail Mordenti signed as vice-president of Automotion in August of 1988 (PC-T. 1067, D-Ex. 58). In her taped statement of April 12, 1989, Gail blamed Jack Gartley for the missing money. In this taped statement Gail indicated that while she was vice-president of Automotion she lost money in the business. She initially invested $25,000, then she wrote an additional $7,000 in checks from her father’s account, she took $11,000 in cash advances from her credit cards, she borrowed $12,000 against her house, she charge another $1500 on her gas credit cards, and she placed a lien against a 1970 Corvette for $10,000. The only money she received was $500 a week beginning in September until she left the business in February. Gail stated on April 12, 1989, "I want to at this time express my concern over my reputation and the slur on my capacity to sell your vehicles. Jack [Gartley] has been an albatross around my neck" (D-Ex. 58). Gail then proceeded to make an offer: "I feel that I probably have information concerning the disposition of specific cars if the bank would be interested and requested specifics" (D-Ex. 58).

In its Answer Brief, the State notes that on August 31, 1989, the Pinellas County State Attorney decided the missing $191,812.00 was a civil matter, and the criminal investigation was closed (Answer Brief at 45). Of course, this was over two months after Thelma Royston was murdered. It has nothing to do with whether it strains credulity that Gail after the April 11^th luncheon and after the April 12^th taped statement indicating that Jack Gartley was "an albatross around [Gail’s] neck" would go to him and try to hire him to kill Thelma Royston. The circumstances of Gail’s relationship with Jack Gartley were demonstrably different at the time of the April 11^th luncheon than they were in late February or early March when Gail testified at trial that she contacted Jack Gartley.

The date book casts a whole new light on the case and upon Gail’s credibility and whether she was telling the truth beyond any reasonable doubt (R. 1201). Under Kyles and Strickler, confidence is undermined in the outcome, and a new trial is warranted.

The State in its Answer Brief does not acknowledge that Michael Milligan was the man with whom Gail was living at the time of the murder and at the time that Gail was picked up for questioning; he was the man who the police suspected was the hit man (PC-T. 905, D-Ex. 66). Clearly, the State had an obligation under the Florida Rules of Criminal Procedure to disclose Michael Milligan’s name and any statements that he provided.

The State further fails to acknowledge that the prosecutors interviewed Michael Milligan and took an oral statement from him. The State possessed notes of that statement (D-Ex. 14), but the statement was not disclosed to Mr. Mordenti’s counsel. The only question under Kyles is whether confidence is undermined in the outcome, considering the undisclosed information contained in that statement cumulatively with the other undisclosed evidence.

The State does not address the notes of the undisclosed statement in the context of the other undisclosed information as is required under due process. The State attempts to discount the Milligan statement by focusing on the sketchiness of Ms. Cox’s note taking (Answer Brief at 48). However, the note in question stated:

6/89- mordenti called him & had car picked up w was used in bank robbery from New Mexico

(D-Ex. 14, at 1, lines 10-11). There was no bank robbery in "6/89"; there was a murder of Thelma Royston. When this notation is considered cumulatively with the April 11^th and the June 7^th entries of Gail’s date book, it clearly establishes matters that defense counsel needed to know and investigate in 1991, as trial counsel testified (PC-T. 905-08). However, contrary to the obligation under due process, the trial prosecutor did not disclose the notes and the date book, and Mr. Mordenti was deprived of the ability to have his trial attorneys conduct timely investigation into these matters to be prepared to either thoroughly present his case or thoroughly confront the State’s witnesses. These undisclosed items considered cumulatively cast a whole new light on the case.

c. Undisclosed Interviews of Gail.

The State tries to deflect the fact that the State did not disclose statements obtained from its star witness, Gail Mordenti, in violation of the Florida Rules of Criminal Procedure, by asserting that "[i]f, as he claims, the thirteen minute phone call involved an innocent explanation of a potential boat sale, Mordenti who talked to Royston would have the information and could testify about it if desired." Answer Brief at 53. This position was rejected in Brady v. Maryland, 363 U.S. 83, 84 (1963), where the undisclosed statement was the co-defendant’s acknowledgment that he was the actual killer, a fact that Mr. Brady knew. Nonetheless, the United States Supreme Court held that the nondisclosure violated due process.

Further, the State refuses to consider the undisclosed statements from Gail cumulatively with the other withheld evidence. For example, the State had talked to John Trevena, a listed witness, and learned that in fact, Mr. Royston was trying to sell a boat that had been used in a movie. Mr. Trevena advised the State that Royston maintained that the cell phone call on June 7, 1989, to Mordenti and Associates was "innocent in nature and that it was relating to some type of a boat or motor vehicle" (PC-T. 332). "There was no discussion concerning any homicide or violence, that it was related to business and that the call had been set up by Gail" (PC-T. 336). This undisclosed information could have led Mr. Mordenti’s counsel to obtain specifics from Mr. Trevena as to documentation that existed to prove this fact and to impeach Gail’s contrary trial testimony.

d. Statement of Royston’s Attorney.

The State completely ignores the fact that the State through ex parte contact with the judge obtained access to information that was withheld from Mr. Mordenti’s counsel. Such an unlevel playing field offends the constitutional guarantee of fundamental fairness. Dillbeck v. State, 643 So.2d 1027, 1030 (Fla. 1994)("No truly objective tribunal can compel one side in a legal bout to abide by the Marquis of Queensbury’s rules, while the other fights ungloved."). Mr. Mordenti’s counsel was denied and is still being denied access to the information that the State received and the opportunity to obtain admissible evidence because the attorney-privilege was circumvented for the State, but is still being enforced against Mr. Mordenti and his counsel. CONCLUSION

For all of the foregoing reasons and those stated in his Initial Brief, this Court should vacate the circuit court’s order denying Mr. Mordenti’s Rule 3.850 and order a new trial.

CERTIFICATE OF SERVICE

MARTIN J. MCCLAIN

Appointed Registry Counsel

Florida Bar No. 0754773

141 N.E. 30^th Street

Wilton Manors, FL 33334

(305) 984-8344

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Mordenti

CERTIFICATE OF FONT

This is to certify that this Reply Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.

__________________________________