IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL

CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR

HILLSBOROUGH COUNTY

CRIMINAL JUSTICE DIVISION

86-8931

DIVISION: "A"

Defendant.

This cause came on to be heard before the HONORABLE DANIEL L. PERRY, Circuit Judge, at the Hillsborough County Courthouse Annex, Tampa, Florida, on

June 29, 2001, as follows:

APPEARANCES:

Wayne Chalu, Assistant State Attorney, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State;

Linda McDermott and Martin McClain, CCR - Northern Region, 1533-B Monroe Street, Tallahassee, Florida 32301, in behalf of the defendant.

COLLEEN MERRITT, OFFICIAL COURT REPORTER

I N D E X

PAGE LINE

PROCEEDINGS ................................ 3 1

CONCLUSION OF PROCEEDINGS ................. 74 5

CERTIFICATE OF REPORTER ................... 75 1

P-R-O-C-E-E-D-I-N-G-S

THE COURT: All right. We ready to proceed?

MR. CHALU: Yes, Your Honor, the State has filed a couple of motions to continue. I believe the Court has been supplied with courtesy copies of those and if not they should be in the court file.

The motions speak for themselves but one development which occurred between this past Monday when we were last here and today was we were able to locate David Pearson who indicated to us that he would give us a DNA sample and so we took a saliva sample from him for the purposes of analyzing his DNA and perhaps comparing to any items that was introduced as evidence at trial and also he was very cooperative and gave us a statement, a sworn statement yesterday which I'm having typed up which will be available next week where he adamantly denied having any participation in this murder for which Mr. Holton stands convicted.

Now our motion to continue, Your Honor, is basically a two prong motion. First of all the record should reflect that Mr. Holton has been convicted of this crime of first degree murder and stands in the position of a person who has been convicted of a capital felony and is waiting the sentencing because a new sentence hearing is pending.

Therefore Mr. Holton does not enjoy the presumption of innocence. A judge and jury have presided over his trial and he was dually convicted of first degree murder and that conviction was upheld by the Florida Supreme Court.

So, Your Honor, I'm asking the Court to grant our motion to continue for a very what I would consider to be pragmatic reasons.

One is first of all as you know Governor Bush does not want to take any action on cases where people are sentenced to death until such time as all DNA evidence for comparisons that could be germane to the outcome of the case are accomplished. That has not yet been done in this case.

Secondly, Your Honor, not withstanding the fact that Mr. Holton is -- has been convicted of this offense, the defense has always maintained that he was innocent and his primary argument has been this alternative suspect of David Pearson.

Well now we know where David Pearson is. We have David Pearson's DNA and it seems to me that the defense would be willing to agree to have this DNA tested for the purposes of determining either including or excluding Mr. Pearson as a suspect.

So, Your Honor, not withstanding the State has maintained that Mr. Holton is the perpetrator of this crime and he stands convicted of that we think it's in the interest of justice and the interest of pragmatics to have all of this tested and also compared to Mr. Pearson's DNA as well as Mr. Holton's DNA before a final determination is made.

MR. MCCLAIN: Your Honor, if I may respond I note the fact that the State has Mr. Pearson out there right now and I can wave to him, he's out there. They brought him into the courthouse today, you know, this is an odd arrangement.

I object to the motion for continuous. First of all at the evidentiary hearing which was concluded on April 20th, the State rested. I can read page 268, "Let me just check, Your Honor. Your Honor, I believe that's all. The State would rest."

Um, Linda McDermott has been on this case for a while representing Mr. Holton and on December 22nd, 1998, let's see that's two and a half years ago, um, she requested the DNA testing of the hairs that had been introduced by the State against Mr. Holton but that wasn't the only thing introduced but the State had called a forensic expert from the FBI who examined it and gave expert testimony regarding that hair and after that testimony was presented and the hair was introduced in his closing argument the prosecutor Joe Episcopo argued on the basis of that testimony that this was Mr. Holton's hair that could not possibly be the victim's hair.

So the hair and the testimony and analysis was an issue and was part of the case. It is in the proceedings which we did in April and the issues that we have before Your Honor which I want to argue today in closing argument a very minor point. It's corroborative of the fact that Brady was violated by the State in this case.

It's corroborated of the fact that Ms. Morgan did not have sufficient time to investigate the case and it is just a piece of the puzzle that goes along with the fact that Mr. Holton's constitutional rights to a fair trial under the Fourteenth Amendment and the Sixth Amendment was deprived and he did not get that.

The issue in post conviction is whether or not he Mr. Holton received a fair trial and there are many cases on that point but before going on to address that let me just note in December of 1998, here are some of the dates that happened in this case.

Um, the evidentiary hearing was ordered in January, January 29th, 1999. The State didn't make any motions there. At a hearing on August 10th of 1999, um, the question arose before Your Honor to resolve whether or not to test this hair and what was the State's position at that hearing? The State's position at that hearing was to oppose the testing.

The State argued quite vigorously against it and the State said, you know, that's going to open up a pandora box, um, and therefore it end, the sky is falling, it's the end of the world as we know it and Your Honor said, well, Ms. McDermott, you're just asking for the hair to be tested; is that correct and she said, yes, that's what I'm asking for.

We have mitochondrial DNA testing available now not previously available and please, can we have it tested and Your Honor ruled that it could be tested. That order was entered on December 6th of 1999, and again that's like a year and a half ago.

The order releasing the hair was entered on April 26th of 2000 over a year ago. Um, Mr. Holton agreed to give his blood so the fact that, you know, Mr. Pearson has like according to the representation of Mr. Chalu and we don't actually have any evidence because the evidence is closed in this case several months ago the fact that State is trying to say Mr. Pearson has agreed to give blood or saliva is somehow significant it's not significant. Mr. Holton agreed a long time ago.

In fact Your Honor ordered directing the Department of Corrections to draw the blood. That was in August of 2000. Then in November of 2000 and -- November of 2000, the hair, the results of the DNA testing of the hair which showed that the mitochondrial DNA matched Katrina Graddy became known. The State did nothing.

An amended 3.850 was filed in January of this year and thus the evidentiary hearing. The State did nothing. The evidentiary hearing happened April 18th through the 20th. The State rests. Did nothing.

And so, you know, now suddenly you know on this past Monday when we were supposed to have closing arguments Mr. Chalu takes Ms. McDermott aside in the hallway and says, you know, it may be in your interest to agree for a little continuous here because because we're having a committee meeting on Thursday and, you know, if you don't agree to this my position is going to have to be the 3.850 should be denied but I may be able to take a different position after the committee meeting. So we agreed.

The next day Tuesday, not Thursday when there's supposed to be a meeting Shirley Williams' secretary calls and says you need to be available at 8:30 a.m. Thursday because we're going to call up a motion for continuous. What about the committee meeting? She explained they had motions they were going to be doing. They wanted more DNA testing.

So I think for the record the representations made on the record Monday were not correct for whatever reason.

And so now suddenly we have a motion asking to turn over the broken glass from a green bottle to Detective Durkin and Detective Noblitt.

I will simply note that when the DNA test was allowed on the hair and even on the items that were in the shaving kit bag, you know, we never made a request that the evidence be turned over to Jeff Walsh our investigator so that he could, you know, look at it do whatever he wanted to do with it and order to send it off to an examiner.

In fact that Mr. Chalu had put on the record his complaints that allowing the DNA testing is going to pose a problem if there is a retrial because we're going to have all sorts of problems with chain of custody.

And also ignores the fact that Mr. Chalu called Detective Durkin and Detective Noblitt after the evidentiary hearing in April to respond to the allegations made by Red Clemmons in a deposition pre-trial 15 years ago that Detective Durkin had planted evidence.

That a cigarette pack in Rudolph Holton's room disappeared while Detective Durkins was walking around the house and then subsequently a pack was found at the crime scene with a fingerprint that matched Rudolph Holton.

That was not really not pursued by Mina Morgan at the trial and I don't think it's that big of a deal because there were hundreds of cigarette packs and there is no question Rudolph Holton had been in the house and the fact that his fingerprints are there doesn't really mean anything but the point is Detective Durkins is at issue in this case.

He wants to keep this conviction in place because he knows what happened in Frank Lee Smith so does Detective Noblitt. In fact in Frank Lee Smith the State is taking a very similar position even though the evidence against Frank Lee Smith --

THE COURT: Was that hearing in Hillsborough County?

MR. MCLAIN: No.

THE COURT: Then I've heard all I want to hear about it.

MR. MCCLAIN: Well, Your Honor --

THE COURT: Move on.

MR. MCCLAIN: The State has brought up the governor.

THE COURT: Move on.

MR. MCCLAIN: I want to make the point that the governor also appointed --

THE COURT: Move on and if you don't move on your argument is going to end.

MR. MCCLAIN: In reference to the governor's position regarding the DNA testing that's not position, that's not the position the state attorney's office took in Wayne Tompkins.

There was testable DNA in that case and they opposed it. The State is also asking besides the green bottle for a t-shirt and ligature and unlike the hair that we had tested there was no forensic testimony at all regarding any of these items introduced. And again the 3.850 proceedings go towards the reliability of the trial and the verdict that resulted.

Since there was no forensic testimony regarding these items what they're trying to do is defeat Mr. Holton's right to a speedy trial because there is no question that the confidence undermining the outcome of the trial that occurred.

There is nothing left of the State's case presented so now they're desperately trying to find new evidence that they don't have to submit to a jury and they don't have to comply with the speedy trial right which they made such a big deal about yesterday in Wayne Tompkins' case because as long they got Mr. Holton here in his orange jump suit meaning he's on death row and they have, you know, David Pearson out in the hallway looking through the window seeing what's going on free to roam around and threaten my witnesses, you know, the speedy trial clock is ticking. Their feet aren't to the fire. They don't have to put up or shut up.

I mean, we had a hearing. You know, it's no different than what happened, you know, in a sort of the trial. Mina Morgan on -- well, on page 852 of the record on December 6th, 1986 filed a motion for continuous. This was before the trial and in her motion for continuous she says, you know she's just interviewed the victim's boyfriend Darryl Hayes and learned that the victim had been raped by Pine approximately one week prior to her death.

Mr. Hayes the victim's boyfriend further advises that the victim told him Pine choked her with his hand and forced her to have anal sex with him.

And then Mina Morgan notes the victim was killed by strangulation and a bottle was inserted in her rectum. She didn't have the information to find Pine. She asked for a continuous and it was denied her and the trial had to go forward.

I have absolutely no objection to the DNA testing the State wants to do if we have a new trial in place. If we have a speedy trial clock ticking.

The fact that they're filing this motion is really a concession that a new trial is required because the result of the old trial are no longer reliable.

I mean the question under is confidence undermining the outcome. Is the evidence that was undisclosed and not presented at the prior trial such to put a whole new light on the case.

And certainly that's what my closing argument is about regarding Brady information that was not disclosed and regarding Ms. Morgan ineffective assistance and the U.S. Supreme Court in Williams v. Taylor just last year said that the test for prejudice is whether the undisclosed, unpresented information or information that the trial counsel failed to present if it's ineffective assistance of counsel does it undermine confidence in the outcome of the trial?

Is there a chance that the outcome would have been different. They call it an outcome determinative and they specifically rejected the Virginia Supreme Courts efforts to say it's not just a question of whether the outcome of that specific trial would have been but it's a more global question about whether or not we approve of the death penalty in this particular case and it allows you to go outside the record. That's what the State's trying to do here.

They're trying to go outside the record of whether this undisclosed exculpatory information in the State's possession and what trial counsel even though she was asking for a continuous and even though it was denied, was she ineffective? Was she rendered ineffective by that, by that fact or did she make other mistakes so the question is did Mr. Holton receive what the constitution requires, a fair trial.

And the test is confidence undermining the outcome. They're trying to defeat that and they're trying to take away his right to a fair trial and say no we can substitute new evidence, you know, yeah, that evidence doesn't count anymore. We're going to build a new case. You just let us have some time to do it before we have to make a closing argument.

I mean, the cases from the Florida Supreme Court they just granted relief a new trial State v. Huggins on June 7th on a Brady violation. The State wasn't given an opportunity to go out and find new evidence to show it didn't make any difference.

Um, even case law from the federal courts have said NUCKOLS, N-U-C-K-O-L-S which is 233 F.3rd, 1261. Federal changes was found out of the 10th circuit and further appeals out of Denver and in that they noted that the test is whether confidence undermining the outcome of the trial that occurred and they quote from another federal case as in many death penalty cases in court procedures the problem presented is not whether the prisoner is innocent of a homicide. This case wasn't a question of innocence. The killing is conceded but rather he received the full benefit of fair rules of constitutional procedure and a fair opportunity.

Mr. Holton didn't receive that right and now the State is trying make it worse. They're trying to compound the error by denying him the right to a jury trial with whatever information they want to come up with.

So the appropriate thing due process requires that there are rules in place and due process requires. We had an evidentiary hearing. The State never made any of these requests. It's over and if a new trial is required then give Mr. Holton the benefit of a speedy trial and give Mr. Holton the benefit of 12 jurors to decide whether the State has proven their case but to do it in this fashion violates due process and it does not comport with the DNA bill that has been adopted. It doesn't go into effect until October. The DNA doesn't give the State the right to do DNA testing.

The DNA bill gives Mr. Holton the right to do DNA testing to eliminate himself and if he prevails and he gets a new trial where the jury gets to decide. That's due process. That's the American way. That's what the constitution guarantees.

So in these circumstances, Your Honor, I ask that the motion for continuous be denied. That we have closing arguments and if a new trial is ordered and the State wants to do their testing they will be able to do it.

And I will be happy, I have resigned my job up in New York and I will be happy to undertake representation of Mr. Holton as a special public defender and I'll be happy to go to trial in August, September, October, whenever to comply with the speedy trial provisions. Thank you, Your Honor.

THE COURT: Thank you.

THE COURT: Mr. Chalu, anything else?

MR. CHALU: Judge, I'll try to be brief. First of all speedy trial is not an issue because there has not been an order granting any new trial. As far as the amount of time this case has been around I have to say I find it remarkable that the defense would make that argument in view of the fact that this case has been going on for years primarily because of the fact they filed numerous amended 3.850's.

It should also be noted that Mr. Pearson's actual name did not surface until early this year when they filed a final amended 3.850, so, Judge, we are certainly not conceding at this point that he's entitled to a new trial.

We think that DNA evidence can certainly bear on that issue because remember we're dealing about, dealing with the issue of recanting witnesses. There is an abundance of case law from the Florida Supreme Court says that you have to make a determination of whether their recantations are credible. If you find they're credible whether they're material and that means whether or not they might, they probably make a difference in the outcome.

What better way to make that determination than to see if this DNA testing corroborates or refutes what they are now saying as opposed to what they said under oath, every oath not only initially to police officers but also in sworn depositions and finally at the trial and testified consistently throughout.

So, Judge, their primary underpinning is the issue of recanted testimony which the court's have counseled unanimously ask that they be looked at very carefully and very critically to determine whether or not the recantation is credible.

In other words if they are now telling the truth and were lying back then and also whether that recantation would make a material difference in the outcome.

Now let's take a look at the DNA issue. Since I took that position on behalf of the State of Florida, Your Honor, a couple years ago a lot has changed, a lot of water has gone under the bridge in this state.

We now have rules legislative and executive policies that we are not to proceed on death cases, to death warrants until such time that all relevant DNA that might be material to the case has been tested.

Now that's all that we're saying here. I find it remarkable that this whole time since January when they named Mr. Pearson as their alternate suspect or the real killer I don't remember the exact wards they used but I think they accused him as being the real killer.

That now we're in a position to corroborate or refute whether or not there is any evidence tying Mr. Pearson to this crime they don't want to do it. I find that absolutely remarkable, Judge.

The State of Florida is not in this thing to win or lose. The State of Florida is in this thing to make sure that whatever happens that we are pursuing the truth. And I'm amazed that the defense does not want to join State of Florida in that effort.

Now as far as the hair is concerned and other items, Judge, and the bottle and the shirt at the time of the crime we have to remember back then we're dealing with 1986 scientific technology. There was no DNA back then.

Even if that stuff had been submitted for testing there would have been no way in the world to conclusively determine who the killer was because there was no DNA technology in existence at that time.

Finally, Judge, regarding -- well, there are two more points. First of all concerning the comments about Detective Durkin, Judge, I think it's preposterous at best to suggest that Detective Durkin would plant evidence and I'm glad that counsel agrees that it's probably not material even if that happened and the State adamantly denies that happened but at the evidentiary hearing we I think conclusively demonstrated that particular item was in the room where the crime scene occurred at the time that the technicians were in there and took the photographs the very day of the murder so, Judge, I think that was sufficiently rebutted.

Finally, Judge, the only thing I can say is, is that it's not only pragmatic because this stuff has to be tested but it may very well bear on the Court's view of the evidence as to whether or not the testimony and evidence in this case is credible or not credible.

And, Judge, I don't think there is any other rational position to take at this point in the interest of justice than to agree to allow us to have this evidence tested. Thank you, Judge.

MR. MCCLAIN: Just to clarify one point, Your Honor. I think what we're saying on one level is the same. We think it should be tested. The question is should it be tested after a new trial is granted or not.

And I think the State is trying to take advantage of the fact there's a conviction in place and that's my objection. Put us in an even playing field. The prior trial is just not reliable at this point. The question should be after a new trial has been ordered can the State prove a case against Mr. Holton? I have no problem with that.

So really the issue comes down to which comes first, the new trial or the DNA testing and I simply submit doing the DNA first violates every principle in the constitution.

THE COURT: Well, what we're here on right now is a motion to continue and whether to continue this hearing any further.

You know, should this stuff be tested, probably. Should this hearing be continued so that can be done I don't believe so. I think we're going to proceed to closing argument on this hearing and we're going to get this hearing over with and then I'll render an order and I'm not going to render it today but I'm going to render an order and I think at the same time I have no -- it appears to me that the defense had no objection to these things being tested.

MR. MCCLAIN: The only objection just to clarify I do object if it's before this speedy trial clock starts. It should be within the speedy trial clock.

THE COURT: I'm not going to hear argument on it.

MR. CHALU: Well, the speedy trial issue.

THE COURT: Well --

MR. CHALU: --it renders --

THE COURT: I haven't ordered a new trial, have I? As far as I'm concerned if I am provided with an order to have this stuff tested the stuff can be tested.

MR. CHALU: Prior to an order being rendered?

THE COURT: Yeah.

MR. CHALU: Okay.

THE COURT: So let's go. Who wants to go first?

MR. MCCLAIN: I would go first.

THE COURT: All right, go ahead.

MR. MCCLAIN: One comment I want to make, Your Honor, in connection with the order on the DNA testing I would note that the bill providing the DNA testing which is now the law provides --

THE COURT: Let me just make something really clear to everybody here. I think I've tried to make this clear way back when this DNA stuff started.

I think I have the discretion to allow and whether or not this bill allows it and whether or not the governor likes it or anybody else likes it. My position is that if DNA is relevant we're going to do the DNA testing so let's go from that point right there.

MR. MCCLAIN: I just didn't want to be accused at some point in time by sandbagging but I think this bill gives me the ability to appeal an order granting DNA test.

THE COURT: I think you have the ability to appeal anything I do so let's just move on.

MR. MCCLAIN: Yes, sir, Your Honor --

MR. CHALU: Judge, may I just say one more thing for the record. If the Court and of course I'm going to do what the Court suggest and proceed today if the Court hears closing arguments before the DNA is tested then we may have to have supplemental argument later on depending on what the outcome is.

THE COURT: We may have to and we may not have to.

MR. CHALU: I was just trying not to have to argue twice.

THE COURT: We're going to move this to a conclusion.

MR. MCCLAIN: Um, Your Honor, with having the evidentiary hearing on the 3.850 motion which was a motion to vacate the judgment, the basis of the motion is that constitutional error occurred depriving Mr. Holton of a fair and reliable result of that trial.

It's important in the motion there is a combined by a Brady claim that suggests that there was evidence that was not disclosed prior to trial to the defense attorney Mina Morgan in this case.

In addition to that there's a claim that Ms. Morgan's ineffective assistance of counsel under the constitution and under the U.S. Supreme Court case law Strickland v. Washington.

In addition there's a claim that the prosecutor misrepresented the relationship and the deal with Flemmie Birkins and that constitutional violation of Giglio which affirmatively misrepresented closing argument and the testimony he didn't correct in the misrepresentation and that is also a claim and finally there is the claim also that as to the forensic analysis that was done at the trial of the hair that under Jones v. State there is new evidence now of that DNA result that shows that forensic information was inaccurate and wrong so those are the four basic areas or four basic claims that are being presented before Your Honor.

First, I'm going to turn to Flemmie Birkins. In this case the jury was told by Flemmie Birkins and by the evidence that presented that he had been facing up to three and a half years and by getting three years all he was getting was six months and the prosecutor argued that in essence the time that he was to serve in jail he knew he was not going to get anything and specifically argued that Mr. Birkins didn't want anything out of this, wasn't getting anything out of this.

He was just outraged by the crime and that was why he was testifying the way or to the statement that supposedly Mr. Holton had made to him. Again this trial was in December of 1986.

What was not either disclosed by the State nor discovered by the defense was there was a recent report of Flemmie Birkins in September of 1986 indicating that in fact he was facing a four and a half year sentence which is larger than what was represented at the trial.

This document was in existence at the time of trial and either through the ineffectiveness or through failure to disclose by the state that information is contrary to the fact Flemmie Birkins' testimony and representation made by Mr. Episcopo.

But it's actually more than that and just for the record I'm referring to Defense Exhibit Number Eight. Defense Exhibit Number Nine is the score sheet regarding Mr. Birkins and the score sheet actually reveals that the guidelines sentence would be nine to twelve years. Not three and a half years that Mr. Holton's jury was told.

Again this increases substantially the sentence and establishes even more of a benefit he was receiving in exchange for his testimony.

And so this also establishes the falsity of the testimony from Flemmie Birkins and the failure of the prosecutor to correct it. This corrected, this corrected score sheet or the score sheet that's dated December 19th, 1986 so it is after the trial but it is the score sheet and I would submit that again had Ms. Morgan had access to the criminal record of Flemmie Birkins and sat down she could have figured out the score sheet herself or that the State should have disclosed this mistake etc.

Again this is material impeachment information of Flemmie Birkins that was not disclosed and not known by the jury and in fact Joe Episcopo firmly misrepresented through the testimony of Flemmie Birkins and in his closing argument what consideration Flemmie Birkins would get for his testimony against Mr. Holton.

And I would also note Defense Exhibit Number Ten is the transcript from the December 19th, 1986 hearing. At that hearing contrary to Mr. Episcopo's representation in his closing argument Mr. Episcopo in fact took over the prosecution of Mr. Birkins replaced the prosecutor who had been on the case and revealed that in fact that the sentencing guideline shows nine to twelve years and was able to obtain basically immediate release of Mr. Birkins. The transcript is within a week of the trial against Mr. Holton.

This information was important information that was kept from the jury and again that goes towards both, it goes both towards ISC which is the Brady and Giglio claim and I'll explain the law and analysis on those but I want to sort of go through the facts first.

So, we have a situation where the consideration of Mr. Birkins is getting is not completely disclosed either to the defense attorney or the jury and in fact Mr. Episcopo when he was testifying during cross-examination by Mr. Chalu indicated that in fact it would be standard operating procedure to not have a specific deal and not have a specific number for a witness because you wouldn't want that information, you wouldn't want to have something specific and say, yes this person is getting six years off of his jail time in exchange for his testimony because that would damage the witness' credibility in front of the jury but that in fact makes the violation worse.

As it has been noted recently by a Maryland Supreme Court case which was in March of this year it's Wilson v. State which is cited at 768, Atlanta Second, 675 and it's relying on Brady the same or I recognize it's from another state but they specifically address the fact that when you have a situation where the deal is not specific it makes the violation worse because the witness who doesn't know effectively what he's getting knows that what he gets is dependent upon his testimony and gives him even more reason to try and curry favor with the prosecutor and get more benefit and that's information that the jury didn't have.

The jury didn't know because in fact the testimony was contrary. The testimony was Flemmie Birkins didn't want anything, wasn't going to get anything. He was doing this because he was a good citizen when in fact he was doing it to get a deal and that information was kept from the jury and that is a Brady violation in and of itself and in a situation where a prosecutor affirmatively fails to correct misinformation from the testimony or affirmatively misrepresents in closing argument turns into a Giglio violation and again the difference between them is the prejudice test for Brady is the confidence undermining the outcome and the prejudice test for a Giglio violation is the error harmless beyond a reasonable doubt.

In this situation both things happened to the extent that the State wants to try to say, well, it was up to Ms. Morgan to figure this out. She could have figured this out had she gone and she looked at the Birkins' file then that's simply converts to a claim of ineffective assistance of counsel claim.

And under State v. Gunsby the Court has said doesn't matter what you call it, if the confidence undermines the outcome because that information does get to the jury a new trial is required.

I would also note because it may come up again and I just want this on the record that the Florida Supreme Court has recently recognized and the case is Occhicone v. State which is cited at 768 So.2d, 1037 it's a Florida Supreme Court decision from the year 2000.

They recognized that prior case law had said there was a diligent requirement to bring a Brady claim. In other words that in order to establish a Brady claim you also had to show the trial counsel couldn't have found the information from some other avenue.

The U.S. Supreme Court recognizes that the U.S. Supreme Court strictly and specifically said that's not true. That's not a proper element because it's the prosecutor's obligation. He can't transfer that obligation to the defense attorney to figure out or dispose of it.

It's the prosecutor's affirmative obligation to disclose the impeachment evidence exculpatory evidence any evidence that is favorable to the defendant.

So first as to Flemmie Birkins. That information was not disclosed. Second, Flemmie Birkins has now testified that the reason he gave the testimony he gave was simply to get out of jail. He made it up entirely.

Now, the State may want to say well, we can't believe Mr. Flemmie Birkins now he's lying. Well, interestingly the court must address similar circumstances in the case of the State v. Mills.

In State v. Mills there was a warrant pending against Mr. Mills and one of the witnesses against him turned out to give inconsistent statements previously that had not been discovered to this impeachment evidence of him and the Florida Supreme Court recognized that impeachment evidence by itself can establish that the result of the proceedings would have been different had they known this.

Had the jury known that Flemmie Birkins would come into court and testify that it was all a lie that would have made a huge difference to the jury.

It would have caused the jury to have no confidence in anything he said so if the State wants to say we can't believe Flemmie Birkins now my response then is I mean how can you believe him then either and so to the extent that his testimony was the key testimony in this case everything falls apart.

I would point out the way to understand and evaluate how important Flemmie Birkins was to this case you have to look at the closing argument made by Joe Episcopo and Joe Episcopo on page 705 of the transcript says, "For the state attorney's office this case really begins with Flemmie Birkins."

So Joe Episcopo then proceeds to explain how that's the case. All the rest of the evidence that they presented was simply corroborated by what Flemmie Birkins said so the State's case was Flemmie Birkins and if Flemmie Birkins is not believable if his testimony that Rudolph Holton confessed to him is not trustworthy there is no case and Mr. Birkins now says that he made it up entirely. Mr. Holton never confessed to him.

I would also note that this is one of the important passage this is what Joe Episcopo said on page 707. "Detective Childers told you, he, that Birkins is a lead informant and he's a lead informant and he uses as a snitch. Why? I'll tell you why. Because ladies and gentlemen, this is a horrible crime and that's why he came forward. That's right, he's got eight convictions but under the sentencing guideline he scores out to three and a half to four and a half years and those are scored and he's got two more waiting so for ten times he gets three and a half to four and a half and that's how horrible a criminal he is."

Well, in fact that information was not correct. That's not what he scored out. He is relying on that information to say well, he's really not a bad guy.

His record really isn't that bad and then on top of that he says he's simply reporting this because it's a horrible crime not because he wants to get anything out of it. All that's not true. It's all not true. And even according to his closing argument Flemmie Birkins is this case, that's according to Joe Episcopo.

Now, turning next to Defense Exhibit Number 13. Defense Exhibit Number 13 is the police report that is dated June 13th of 1986. According to this police report Katrina Grant living at the address that is Katrina Graddy's address with the birth date the same just a year's difference reported on June 13th, 1986, she gave an interview to the police and it says, "black female complainant stated that she voluntary went to the suspect's room at the Park Two Motel to engage in conversation. After ten minutes the suspect ordered her to remove her clothes or else. She became frightened and removed her clothes. He then grabbed her from behind the neck and forced her face down on the bed.

He then forced anal intercourse on her against her will. The complainant also advised that they had both smoked rock cocaine voluntarily prior to the sex act. The complainant does not wish suspect to be arrested at this time."

I want to note in reference to that at this time that in fact where there's a waiver of prosecution signed by Katrina it indicates that you know she's advised that even though she's not prosecuting at this time she can come back and request reinstatement so it's not a waiver forever and ever. It simply, not at this time.

Now, then it's interesting because she tells them where to find the person who raped her and they go to a hotel, motel and they find the individual and they interview him and this is what they say. "Black male suspect stated that the complainant and he were good friends but never had sex until tonight. He admitted they engaged in oral, anal and vaginal intercourse throughout the night with both parties willing. They also had smoked rock cocaine together and after the sex act the complainant became mad at him because he didn't have any more rocks for her and this is why she is claiming a rape. The suspect also informed that approximately on eight occasions that his birth name was Donald Smith. The suspect made these statements after being advised of Miranda" so a person that Katrina allegedly raped her is picked up and he gave a false name to the police officer eight times.

He didn't dispute that there had been sex he simply argued that it had been consensual and he had provided the victim with rock cocaine and obviously indicating he is a supplier of drugs.

So at that point in time the police officers discovered and this is what is in Exhibit Number 14 that the person who was representing himself as Donald Lamar Smith is in fact obstructing and what they write up in the complaint is obstructing by disguising his identity and they run him through the computer and they discover that even though he has told them his name is Donald Lamar Smith his name is in fact is David Lorenzo Pearson.

And so, you know, I would submit this is pretty interesting stuff in that it shows that Donald Pearson is the person that Katrina claimed raped her ten days before she was murdered and that he gave the name Donald Lamar Smith.

He was so cooperative with the police he insisted repeatedly that his name was Donald Lamar Smith and he lied to them and they wrote up a complaint against him for obstructing or disguising his identity.

Now, to understand the significance of these two reports you have to look at some other exhibits, Exhibit Number 18.

On June 23rd, 1986, when the house is found burning with Katrina inside while the police have the building cornered off there's a police report that details an interesting event and what the police report which was admitted into evidence indicates note, "At approximately 11:30 a black male walked up to the crime scene area and asked me, quote "Who choked Anita? What happened? Who got choked?" "I then obtained his identity and ran a radio check to see if he was wanted. He was Donald Lamar Smith. At 10:43 Harrison Avenue date of birth September 20th, 1957 Tampa Police Department number 220071, I then relayed this information to Detective Durkin and he verbally interviewed the subject. The subject stated that he used to live at 3804 Jackson but now he lives at 1041 Harrison and then he provided to give his Social Security number and they note he's 5'11" tall."

So this report indicated all the information we need to find Donald Lamar Smith and it's interesting that the name Donald Lamar Smith is the very same name that is reported in Exhibit Number 14 indicating that when Pine, David Lorenzo Pearson was arrested on a rape charge he gave the name Donald Lamar Smith.

Exhibit Number 20 there was a deposition done of Bernard Johnny Black and Mr. Black was living with Katrina's mother at the time of the homicide.

At page six of this deposition which occurred in October of 1986, October 22nd he indicated that "Well, I heard the week before Katrina had told me a week before this happened to her that Pine had raped her and then see then they picked him up but used another name by the name of Donald something. That's all I know about Pine." Ms. Morgan asked Mr. Black, "Did Katrina tell you whether or not she reported the rape to the police?" Answer, "Yes, she did. She said she reported it." Question, "Do you know if she used her own name when she reported it or was she --" Answer, "No, she -- I don't think so. I don't think so because she had a warrant out on her because she had gotten picked up for prostitution and she used her aunt's name and they let her out on ROR and she supposed to have paid -- " "What they call a probation?" Answer, "Yes."

So Ms. Morgan again was investigating trying to find out this Pine person and she's told the story that appears in the police report Exhibit Number 13. She just doesn't get anybody's last name or any information as to how to find him and she clearly wants to.

Then there's a deposition of Karen Graddy which is Katrina's sister. This deposition was done September 25th, 1986.

In this deposition again done by Ms. Morgan she asked Karen, "Has -- did Annette tell you that Katrina told her about Pine having attacked her?" Answer, "Oh, another guy Don, Donald Smith I think that's his name was telling me that when they found Katrina and they knew who it was that Pine had raped her earlier that week, I guess a couple of weeks before and used his name and went to jail for using his name or something like that." "What name did Pine use?" "Donald Smith." "Donald?" "Yes." "Do you know how we could get in touch with Donald Smith or if we could find Donald Smith somewhere?" "He lives in the area. I don't know exactly what house it is but I see him." "Do you know where he works?" "No." "How old is he about?" "Twenty-five."

And that's the extent of the information she's able to provide so again Ms. Morgan who definitely is looking for Donald Smith. She has no middle name, she has no other information.

Now Exhibit's 31 and 32 are from Ms. Morgan's file reporting her interview with Darryl Hayes. Darryl Hayes as she testified is Katrina's boyfriend. And these interviews there's not a date on them but it does indicate these handwritten notes they're not complete sentences, but you see the name Katrina, dash, fake name, then a dash Lynn then a dash, told police then a dash, Pine lose, Pine. Then the second page indicates Park Two. Park Two Motel where it happened, dash, Pine checking her in rectum and another place it says Katrina, dash, rape, Pine, in motel room choking her, sex in rectum.

So we have pre-trial information from Katrina's sister indicating that she knew about the rape. We have information from the man living with Katrina's mother indicating specifically Katrina had told him about the rape by Pine and we also know from these notes that Ms. Morgan talked to Darryl Hayes, Katrina's boyfriend who also indicated Pine had raped Katrina.

So when you put all of that together with the police report that Ms. Morgan was never provided by the State showing that there was in fact was a police report showing the fact that Pine was arrested on Katrina's word and taken to the station and that he didn't want his identity known because he gave a false name when all of this happened.

We also know that had Ms. Morgan received that she testified she did not receive and there doesn't seem to be any evidence contrary the police report showing Detective Durkin talked to Donald Lamar Smith who had information about somebody inside having been chocked on the morning while they're still investigating and putting out the fire she would have been able to find Donald Lamar Smith. As it was she wasn't able to and in fact her motion for continuous which she filed December 1st, 1986 she explained she is trying to find Pine. It's on page 854 of the record.

She says that Pamela Wood had told her about Pine and that's also Exhibit Number 33 the deposition of Pamela Woods where again she talked about Katrina having been raped by Pine. The information was well known. But Pamela Woods was not able to give her information as to the identity of Pine.

Pamela Woods was not able to give her any leads. She also notes she talked to Darryl Hayes who indicated, her conversation with Darryl Hayes was on November 28th, 1986 so that's two days before she did the motion for continuous and that indicates that Mr. Hayes advised her that the victim told him Pine choked her with his hand, forced her to have anal sex with him and she notes that how she wants to use that because since the victim was found killed by strangulation with a bottle inserted in her rectum it certainly matched a description of the rape.

So what we have again is Exhibit Number 13 and 14 which were not disclosed. Had Ms. Morgan had that information she would have been able to find David Pearson. She would have been able to find Donald Lamar Smith.

Also not disclosed was Exhibit Number 18. Had she had Exhibit Number 18 which indicated that Detective Durkin interviewed Donald Lamar Smith and knew his birth date and his Social Security number and his address she also would have been able to find Donald Lamar Smith.

Interestingly Detective Durkin testified April 20th at page 263 of the transcript and upon looking at that exhibit he said yes, obviously I did talk to David Lamar Smith and did not dispute that he spoke to him but he had no recollection of anything that David Lamar Smith said to him and then when redirect examination was done by Mr. Chalu Detective Durkin said that had he known that the defense did not have that report he would have made the defense aware of it.

The problem is that specific report would have led Mina Morgan to Donald Smith but that didn't happen. Donald Smith obviously coming in, having an address, having a birth date and then we also note that Donald Smith would have told her because we heard from Donald Smith. Donald Smith would have said yes, after Katrina got done with the police she came to me and she said, you need to know that Pine raped me and that I told the police about it. He gave your name.

You need to be careful so she's warning him because she's worried about what is going to happen to him with Pine pretending to be him and then goes and confronts Pine and a nasty argument occurs, threats.

In the morning that the body is found, the morning the house burns Donald Smith sees all of the commotion. He walks there. He is walking in a direction and on the way there he passes Pine. Pine tells him somebody strangled Katrina. He obviously knows this at that point in time.

Donald Smith then says Pine leaves. He goes on up and that's when he asks the police officer he says, who choked Katrina? The police officer wrote down understanding he choked Anita and then proceeds to be questioned he said.

He also testified that several months later he was supporting himself by giving haircuts and he gave David Lamar, David Lorenzo Pearson a haircut and during that haircut David Pearson indicated to Donald Lamar Smith that he had in fact killed Katrina. That information didn't get to Mr. Holton's jury.

There were leads in the police report that could have caused Ms. Morgan able to find it. She was waiting for it. Her motion for continuous notes how she had this other trial. The State opposed a continuous and the judge, Judge Coe wouldn't give her time to find more information about Pine. Wouldn't give her the time to do the additional investigation and research and examination of things.

Now to the extent that the State didn't disclose this information the first question isn't whether the prosecutor knowingly didn't disclose. That's not the test.

The question is whether in possession of law enforcement the prosecutor or the police was the information that would have been favorable to Mr. Holton and there is no question that it would have been favorable to Mr. Holton.

I mean that's -- Ms. Morgan spelled it out in her motion for continuous. When Pamela Woods didn't show up for trial she was really upset because she couldn't, she wanted to present the information about Pine, the limited information she had at that point from Pam Woods to the jury and she couldn't do it.

Had this information been disclosed then she could have. And the question really has to be again did Mr. Holton receive a fair trial?

And the U.S. Supreme Court claims that means the prosector had an obligation to search through the police reports and make sure all the information is disclosed to the defense attorney that the defense attorney needs.

And the prosecutor bears the burden and if fails in that job and information doesn't get to the defense attorney that undermining confidence in the outcome and Mr. Holton is entitled to a new trial where the jury gets to hear that information. Where the jury gets to hear Donald Smith explain the sequence of events and the jury gets to see the police reports that corroborates what Donald Smith reports.

And the jury gets to know that Katrina's sister Karen knew about this rape. The man who lived with her mother knew about this rape. That Pamela Woods knew about this rape. That didn't happen because the information wasn't disclosed and so again, there's that phrase, undermining the confidence in the outcome and according to the U.S. Supreme Court and the courts have adopted it's the law.

The question is not whether more likely than not had the jury have a reasonable doubt about Mr. Holton's guilt so if it's not even but it's something than more likely than it's a reasonable probability of a different outcome.

To phrase it another way they say does it cast the case in a whole new light? I mean, if anything puts meaning to that phrase it's this case. Of course this information casts the case in a whole new light.

It would be an entirely different trial. I mean, and you know Ms. Morgan was in the stand and can you imagine how excited she would be to be able to present that evidence on behalf of Mr. Holton and what she could have done with it.

The most pronouncement recent from the Florida Supreme Court is State of Florida v. Huggins, H-U-G-G-I-N-S and it's June 7th of the year 2000, 2001 three weeks ago.

In reviewing the materiality of the alleged Brady violation whether prejudice ensued the question is not whether the defendant more likely than not received a different verdict with the evidence but whether in its absence he received a fair trial understood at a trial resulting in a verdict worthy of confidence.

This court must review the other facts of the suppressed evidence and determine whether and find the evidence could reasonably be taken in the whole case in such a different light as to undermine competency in the verdict.

If the suppression of favorable evidence shakes the confidence in the verdict the defendant is entitled to relief. I mean I think it's severe that evidence shakes the confidence in this verdict because the jury didn't get to hear it.

Moreover the Supreme Court said you got to consider all of this cumulatively. So you're not just to consider the police reports and the information regarding Pine being David Pearson by itself and you're not just supposed to look at the police report that gives the name Donald Smith by itself and you're not supposed to look at Flemmie Birkins and the information regarding him by itself and analyze it.

There is a serious effect when you take these things together in the whole greater even in some of the parts. There's nothing left. Then when you add to that the Johnny Newsome that he testified that he too was afraid of the police and so his testimony at trial was false.

Then you add to that we know that the hair which was found in the mouth of the victim had her mitochondrial DNA meaning from her or somebody related to her maternally not as the prosecutor argued in closing argument that it was Mr. Holton's.

When you examine this case in its entirety I mean, I understand the State's predicament. I understand the reason for the motion to continue. I understand the desire of the DNA testing. It's because in fact the confidence is undermined in the reliability of the outcome of this trial because this information is huge and completely changes and alters the case.

Your Honor, I submit when you add all these things together and you look at the claims and the case law the relevant case law there is no question Mr. Holton did not receive a trial that was constitutionally adequate.

There was information that the trial attorney didn't receive that she should have received. Maybe this was information that she could have found. She was on the right track but she didn't do enough.

It doesn't matter whose fault it is under State v. Gunsby because whether or not it's the prosecutor's fault or whether it's the defense attorney's fault the question is confidence undermining the outcome and it has to be here Your Honor.

And, you know, I submit that Mr. Holton you know has been on death row for 15 years for a crime he didn't commit and he's entitled to a fair trial and I just point out that Justice Wells in an opinion dissenting, maybe concurring in the Swatford case in this footnote, I take notice of the Florida Department of Corrections material which states prisoners who have been sentenced to death are maintained in a six by nine foot cell with a ceiling nine and one half feet high. These prisoners are taken to the exercise yard for two hours intervals twice a week otherwise these prisoners are in a cell except for medical reasons, legal or meeting interviews or to see visitors allowed on weekends only. These facilities procedures were not designed and should not be used to maintain prisoners for years and years. That's what happened here.

And, you know, Your Honor, sitting in this courtroom in April sitting next to Mr. Holton and watching him watch Flemmie Birkins and Johnny Newsome testify that they had lied and they had taken his life from him and put him in those circumstances was one moment I will never forget.

It may be to his attorney he didn't like yell or scream. He sat there with dignity and I watched those tears roll down his cheek.

MR. CHALU: Judge, at this point counsel is testifying as a witness as to his client's demeanor and it's all personal sentiments in this case and while I appreciate how he feels I don't really think that's what we're here for today.

THE COURT: Let's move on, finish up.

MR. MCCLAIN: Your Honor, the time has come for Mr. Holton to get a new trial, thank you.

THE COURT: We'll take a ten minute recess.

(Whereupon, court was in a recess)

(Whereupon, court was back in session)

THE COURT: Mr. Chalu?

MR. CHALU: Just so a couple of preliminary matters, first of all the Court is still going to sign an order allowing further DNA testing?

THE COURT: Yes.

MR. CHALU: I have those orders to give the Court at the end of the hearing.

THE COURT: All right.

MR. CHALU: Secondly, Judge, in view of the fact that we're going to be testing doing DNA testing regarding not only Mr. Holton but Mr. Pearson I'm asking the Court for leave to submit the transcript of our interview with Mr. Pearson yesterday to the Court with a copy to the defense counsel because I think it may be very relevant to the Court's determination later in this matter.

And, Judge, I would point out that we have been looking for Mr. Pearson for quite some time. He had been at large for quite some time and when he was released from the county jail and he was arrested on a new charge which occurred about the same time that this evidentiary hearing in this case was back in April and when he was released on Sunday we asked to speak to him and got that transcript I think that's highly relevant, Judge, and this request that you permit leave to file that with the Court and a copy to counsel in conjunction with the DNA inquiries.

THE COURT: Any objection?

MR. MCCLAIN: The hearing is closed. The State rested and there is no basis for that. I've never been given a copy of this before now and I don't know what other objections I have and I haven't seen it so I'm not willing to agree to some document that is going to be presented at some point in time in the future and be expected to take a position and I object at this point in time.

THE COURT: Okay, you can go ahead and submit it for the record, Mr. Chalu.

MR. CHALU: Thank you, Judge, and I'll be sure opposing counsel gets a copy. Your Honor, with regard to Mr. McClain's arguments I'm going to try to deal with them one at a time and I'll raise some other issues.

Mr. McClain first of all talked about the quote unqoute Flemmie Birkins deal as if that were a reality that were fact not disclosed. I think if the Court recalls the testimony at the evidentiary hearing two months ago he was quite clear that there was no deal and since no deal existed there was nothing to disclose to defense counsel and therefore there was no violation in failing to disclose something that did not even exist.

If you recall from the physical evidence as well as the testimony that this was an open plea you recall when Mr. Birkins was ultimately sentenced that his counsel stated I think Mr. Steven Peaveyhouse stated to the Court that, Judge, this was an open plea. That was not Mr. Episcopo speaking. That was Mr. Birkins' counsel speaking. Mr. Birkins did not in any way contradict that statement by his counsel.

The fact of the matter is, Judge, and you're aware of this because it's standard operating procedure as Mr. Episcopo testified and as the Court is well aware and that procedure is that you don't give somebody a deal to a specified number of years before you know whether or not he is going to testify truthfully. It would be illogical and bad practice to offer a defendant a deal to a specified number of years or specified sentence without first knowing whether or not his testimony is going to be truthful honest and accurate. That's exactly what happened here.

There was no deal other than an open plea and the understanding that if Mr. Birkins testified truthfully that the State would be willing to make that fact known to the Court.

Now, what about any other deal? If you recall at the evidentiary hearing I believe that Detective Noblitt testified and this is corroborated by Detective Noblitt's testimony at the trial that when Flemmie Birkins called him and asked to see him and Detective Noblitt went out to the jail to interview Flemmie Birkins concerning his conversation with Mr. Holton Flemmie Birkins never asked for a thing, not one thing.

Flemmie Birkins did not try to cut himself a deal. He didn't say try to get me a deal with the prosecutor and what's going to happen if I cooperate or anything of that nature. Flemmie Birkins asked for nothing.

What came out of Flemmie Birkins' mouth when Detective Noblitt went out there was the first thing out of Flemmie Birkins' mouth was it's wrong what he did to a 17 year old girl.

Now, how would he know that Rudolph Holton had done anything to a 17 year old girl unless Flemmie Birkins had told him. How would Flemmie Birkins unless Rudolph Holton had told him how would Flemmie Birkins know that this was a rape murder? How would he know that she was strangled, that the house was burned?

There was no evidence that Flemmie Birkins gained this information from newspaper accounts or from the television accounts. The information Detective Noblitt was specifically tailored to Rudolph Holton's case revealing facts that Rudolph Holton had to have told Flemmie Birkins in order for Flemmie Birkins to know these things and for Flemmie Birkins to ask for nothing so since there was nothing to be disclosed there was no violation in failing to disclose it.

There was no Brady violation here so and the only thing to determine whether it's harmless or rather a Giglio violation and there was no violation and I think the testimony is extremely clear concerning that issue.

Now, let's take a look at newly discovered evidence, this so called newly discovered evidence. The police report concerning Pine or David Pearson's alleged rape of the victim in this case.

Now the Court if it examines that exhibit, those exhibits very, very closely you're going to find that Katrina Graddy waived prosecution of that alleged offense and I say alleged with emphasis she waived prosection of that the very same day. Why?

Because the evidence was very clear from the report and from the interviews that this was a sex for drug deal. This was not a rape or sexual battery at all.

In fact if the police had believed Katrina's complaints there's no question that they would have arrested him not withstanding her initial desire to waive prosecution and why would she waive prosection if he had brutally assaulted her and anally raped her against her will? The answer, Judge, is that there was no rape. There was no rape.

And had this report been disclosed that would have come out and because that would have come out, that being there was no rape that Katrina Graddy was not telling the truth about that she was not raped and the fact that it was a sex for drug deal it would not have changed the outcome of the proceeding.

Further it would not have changed the outcome of the proceedings because there's absolutely no question at all that David Pearson knew that she had waived prosecution and therefore why would he retaliate against her when he knew she waived prosecution.

It's quite clear from circumstances under which Mr. Pearson was questioned and the basis under which Ms. Graddy was questioned and how it was that the defendant was let go the very same day she waived prosecution the very same day so if that report been disclosed it also would have been disclosed that this was indeed no rape at all.

And indeed there was a waiver of prosection and therefore provided no motive for David Pearson to silence Katrina Graddy or retaliate against her at all.

And of course Mr. McClain pointed out he was arrested for a false name to a law enforcement officer. None of this, Judge, was material in the Brady sense such that it would have changed the outcome of the proceeding or probably changed the outcome of the proceedings.

Now let's talk about Donald Smith the next point that was covered by Mr. McClain. Donald Smith claimed in this courtroom back in April that Pine, David Pearson told him that he had raped and killed Katrina Graddy.

Now, you recall when he was cross-examined I asked him well, did you call 911? No. Did you call the police? No. Did you call the state attorney? No. Did you call any official at all? Well, who did you tell? He didn't tell these people. Who did you tell? Well, I told several people but not one person did he tell who was in a position to do something about it.

So what you have to believe, Your Honor, if you are to believe his testimony of Donald Smith at this point is that he knew for 15 years that the wrong person was on death row in order to believe that testimony you have to believe that Donald Smith knew for 15 years that the wrong man was on death row and he did nothing.

That is not credible, Your Honor, it's not believable. It's not entitled to any weight at all. The Court does not have to believe that and I submit the Court should not believe that.

Now, regarding him telling other people that's ranked hearsay. That's not even admissible and therefore that would not change the outcome either the fact that Donald Smith told other people that David Pearson had told him that David Pearson had raped her that's hearsay and therefore would not have been admissible and that would not change the outcome.

We have heard from some of those witness too. So that would not have even been admissible. The reason, Your Honor, that Donald Smith's testimony did not reach the jury was not because Mr. McClain claims that Mina Morgan couldn't find Donald Smith, it's because apparently she made reasonable efforts to do so and Mr. McClain pointing out those efforts belies his claim of ineffective assistance of counsel because she made diligent efforts to try to locate Donald Smith.

It was not Mina Morgan's fault that Donald Smith was not found. It was Donald Smith's fault because Donald Smith did not come forward.

Now, why would Donald Smith not come forward if he knew that the wrong man was charged with first degree murder and was facing the death sentence and ultimately did get a death sentence why did he not come forward? There's only one logical reason and that's because David Pearson never told him that.

David Pearson never told Donald Smith that so why would Donald Smith tell this story now? Donald Smith is a multiple convicted felon and who has been in and out of prison most of his adult life, several convictions. He came down here from prison to testify.

I will submit to, Your Honor, that he is no friend of law enforcement or the state attorney's office or the state correctional system and this is his chance to strike back.

Johnny Newsome. Johnny Newsome's recantation Your Honor, first of all is not believable. Because Johnny Newsome gave three statements all of which were entirely consistent with each other and totally inconsistent with his testimony here a couple of months ago.

He told the police, he told Mina Morgan in deposition and he told this Court in the trial back in late 1986 the very same story. What was that story? He put Rudolph Holton there with the victim within hours prior to her rape and murder. Right at that house next to that house in that neighborhood.

Interestingly enough Mr. Holton initially denied several times being in that neighborhood that day and ultimately when he was confronted with the evidence to the effect that he was there that day both the testimonial evidence and physical evidence Mr. Holton admitted to being there that day.

So Johnny Newsome's recent recantation is irrelevant at this point because he's recanting something that Rudolph Holton has already admitted which is that he was there that day.

And to the extent that Johnny Newsome's testimony disagrees with that disagrees with the defendant's own statement and to the extent that it's conflicting with his prior statement, Judge, it is not credible, it is not credible.

Mr. Newsome has the same issues that Mr. Smith has. Mr. Newsome is a convicted felon who has been in and out of prison most of his adult life and this is his chance to get back at the system.

The Court does not have to believe that. It is not credible. It is not true. The Court does not have to accept it.

It should be pointed out, Judge, that when you'll be able to consider the original and have to consider the original trial transcript record as well as the evidentiary hearing portion of the record I would invite the Court to review again the numerous inconsistent statements Mr. Holton have to law enforcement. Why is that relevant?

Because it's relevant to the credibility and determination not only of Mr. Holton but of the other witnesses. It was only when Mr. Holton was confronted with irrefutable testimonial or physical evidence of things that he previously denied he would then admit them because he had to and there was one way that he did admit was being at the crime scene that day. None of the things mentioned, Your Honor, either in addition or collectively would have changed the outcome of this case.

Now a couple things Mr. McClain didn't mention so I can mention them very briefly concerning the man who Mr. Schenck who dropped him off, he never made a positive I.D. He still is not making a positive I.D.

I don't believe that would be material to the outcome even though he thinks now he may have dropped off a different person then he thought back then.

We also have to keep in mind that one of these witnesses that put him in the house she has past away but her testimony is still the same and they tried to impeach her with somebody that apparently they claimed she told that she had not told the truth. At this point, Judge, I doubt that is admissible since the lady is deceased.

So, Judge, in total you've got really three things here. One is you got recanted testimony. The law is clear and I'm going to cite case for the Court, Johnson v. State, 769, So.2d 990, Wood v. State, 733 So.2d, 980, Stano v. State, 708 So.2d, 271, Robinson v. State, 708 So.2d, 688, I'm sorry, 707 So.2d, 688, Jones v. State, 709 So.2d, 512, Armstrong v. State, 642 So.2d, 730 and numerous other cases out of the Florida Supreme Court and different courts of appeals all of which say that when you are dealing with the issue of recanted testimony in a 3.850 hearing that the trier of fact and that in this case is Your Honor the trier of fact has the ultimate say on whether or not that testimony is credible.

So, Judge, if you find that this recanted testimony on behalf of Johnny Newsome, Flemmie Birkins and Mr. Schenck is not credible or not credible or not reliable you can ignore it.

That's what you should do, Your Honor, because it is not credible or believable in light of the numerous consistancies that were consistent testimony that all these men gave to the detectives, the police officers, to the defense lawyer in depositions and at trial their testimony was consistent throughout and now all of a sudden here we are 15 years later, 15 years later with a whole new story and you're going to find, Judge, that these cases deal with situations that are very very, similar and sometimes almost precisely the same.

Where the trial court found that they were not credible he did not grant a new trial and they were affirmed by the Florida Supreme. Court. Judge, if I can have one moment.

THE COURT: Sure.

MR. CHALU: Judge, in total I agree with Mr. McClain's statement of the law which is a new trial should only be granted if the evidence, if the newly discovered evidence or Brady evidence or Giglio evidence or whatever is sufficient to undermine the confidence in the outcome.

I would respectfully but firmly submit to Your Honor that is not the case here. That is not the case here.

Mr. Holton had a fair trial and certainly not a perfect trial but no one is entitled to a perfect trial but he had a fair trial and that trial was affirmed by the Florida Supreme Court and so far we have heard nothing to change the confidence in the outcome whether it be the prosecutor's alleged cover up of the deal which there wasn't.

Whether it's newly discovered evidence which is not reliable or credible or whether it's ineffective assistance of counsel which clearly has not been shown.

In sum, Judge, we think the ineffective assistance of counsel has to be counsel, the counsel of her performance or not performnce was so substandard as to in effect deny the defendant of his Sixth Amendment right to counsel.

Ms. Morgan was prepared and she was professional and she was well qualified to handle a case like this.

In short, Judge, none of these errors if any contributed to the outcome and I would respectfully request that the Court deny this motion.

THE COURT: Anything else?

MR. MCCLAIN: Just briefly in response, Your Honor. First with reference to Flemmie Birkins I would just want to point out that Mr. Chalu says that Mr. Birkins asked for nothing and that was the testimony. Well the testimony he did get something. He got six years knocked off his sentence which he got to go home and get out of jail.

Um, the fact that the Hillsborough County State Attorney's Office has a standard operating procedure of rewarding witnesses after they testify but they don't want to do it before they testify because that might impeach them in front of a jury and I mean if that sends a message to the jail everybody in the jail knows that.

So that procedure has been found as I pointed out to itself be a violation of Brady and moreover it's inconsistent with what Joe Episcopo told the jury. He denied that. He said he didn't want and was not getting anything. That was an out false. That's a Giglio violation.

So it was improper because it wasn't disclosed. It's improper because the jury was lied to. Then Mr. Chalu made an interesting point.

He said Birkins you know three or four days after the murder how would he have known about strangled and burned? Well, you know, we have Donald Smith, Donald Lamar Smith at the crime scene while they're still investigating the crime he knew.

I mean if this is such an important point why didn't the police officer find out from Donald Lamar Smith at eleven o'clock that morning how come he knew there was a strangled woman inside that burning house?

So in and of itself impeaches Birkins and that is another reason why that Exhibit Number 18 should have been disclosed because Mina Morgan could have said, well, the word on the street at eleven o'clock in the morning the body was found she was strangled and burned. So the fact that Flemmie Birkins knew three days later what a shocker.

Now turning to the police report regarding Katrina's report of the rape surely Mr. Chalu didn't mean to say that a prostitute can't be raped. That's sure what it sounded like.

And surely Katrina's family knew she had been raped. I mean, it's not just a police report. It's Katrina's sister. The man who was living with the mother. They got it from Katrina. She's telling people.

Moreover the police report number thirteen indicates when she signed the waiver of prosecution she can change her mind. She can come back yeah and say yes, I am ready to prosecute now.

And if she waived the prosecution do you think maybe the police officer at the time told her, you're a prostitute we don't believe you. Maybe then that's why she left upset and was telling her friends and family she had been raped and nothing was happening about it.

That's not the only incriminating thing she said about Pine which Pine confirmed. He's supplying her with rock cocaine. Did the police investigate that?

He admitted to it, and you know, if -- well I don't understand if the police report indicates David Pearson is giving a false name repeatedly when he's questioned and somehow that's not suspicious behavior but Rudolph Holton being afraid somebody is going to pin a murder on him, giving inconsistent statements and not telling the truth that indicates he's guilty?

If Pine knew that she waived prosecution he could also know she could restart it at any time and he also knew she was shooting off her mouth to Donald Smith because Donald Smith and Katrina confronted Pine after that.

I also point out and I apologize I found it, let me point out that in Pam Woods' depo of October 22nd, 1986 at page 19 Pam Woods reports that she and Katrina watched a man rape some woman and that it appeared to be like you know within a day before the murder they watched this man rape some woman and when it was done Katrina said to Pam that looks like Pine so not only had she been raped but according to Pam Woods' deposition Katrina is telling Pam that man who just did that rape we just watched is Pine, you know, on page 20 of the deposition.

And Pam is saying no it wasn't. No, that didn't look like him but Katrina thought it was Pine and then she also indicated Katrina wouldn't tell her, she said there was something else to tell her but wouldn't tell her and there were a variety of things but ultimately Katrina herself never told Pam about Pine. She just said the man that just committed that rape there in front of us I think that's Pine.

Now Donald Smith. Mr. Chalu asked well, Donald Smith didn't tell anybody. He's waited 15 years, okay. Donald Smith has waited 15 years and, you know, what it is he's waiting to tell is that Katrina when she went to the police and reported that Pine had raped her, um, Pine killed her so Donald submit, mm-mm, let's see Pine confessed to me that he killed Katrina what should I do?

Now the State says well, first the State says the fact that Donald Smith at the time told other people that Pine had confessed to him is not admissible and shouldn't be considered.

Then Mr. Chalu argues well, this is a recent fabrication. He's making it up now because he's mad at the State. No. When he makes the allegation of recent fabrication the fact that he told other people in 1986 that Pine had admitted this murder to him that rebuts that allegation and that's what makes it admissible.

So Donald Smith was telling people back in 1986 he just didn't tell law enforcement because law enforcement wasn't able to protect Katrina and, you know, it's not Donald Smith's fault that Mina didn't find him.

It's Exhibit Number 18, his name, his address, his Social Security number, his date of birth, it's on the document that is prepared the day the body is found.

And Detective Durkins talked to him Donald Smith. The information is there. It was in a police report that was not turned over to her.

The State wants to say, well there's a series of cases for the proposition that recanted testimony it's up to a judge to decide whether to believe it.

Well, you know, what those judges did in those cases isn't relevant to what Your Honor should do in this case in terms of evaluating these witnesses and you are to evaluate them obviously with the cumulative facts but also according to Greg Mills which is the most recent Supreme Court decision it's like three weeks old in that case indicating that impeachment evidence itself the fact that this witness has made this statement under oath impeaches the trial testimony and it's not question of whether you believe him now, the analysis is had the jury heard that he made a completely 180 degree statement under oath totally inconsistent with the testimony that the jury heard would that have made a difference to the jury? That's the issue and that's what Greg Mills says.

Could the jury have been influenced by the fact that they had known that this inconsistent statement under oath was made. That's the test.

As to Carrie Nelson indicates that the person who she told or claims that she told she lied because she was mad at Holton isn't admissible but impeachment evidence is admissible and it goes to whether she had a motive to fabricate.

Your Honor, when all of this is considered together the Court, you must find that a new trial is warranted where a jury gets to hear the evidence, the real evidence. Not just half the story and that's what we're asking for is a new trial, thank you.

THE COURT: All right. Well, I'm going to give you a ruling but it's not going to be today though. Um, I won't be here the most of next week and the court reporter is off next week and I want her to type this up and she'll be gone the next weeks and I'll be gone the next week and it will probably be sometime the week of July 23rd and I'll render a ruling, all right? Thank you.

MR. MCCLAIN: After Monday if Mr. Holton could be sent back while if it's going to take three weeks.

THE COURT: Yeah, go ahead and send him back, okay?

(Conclusion of proceedings)

CERTIFICATE OF COURT REPORTER

STATE OF FLORIDA

COUNTY OF HILLSBOROUGH

I, COLLEEN MERRITT, OFFICIAL COURT REPORTER for the Circuit Court of the Thirteenth Judicial Circuit

of the State of Florida,

DO HEREBY CERTIFY that I was authorized to, and did report the proceedings and evidence in this hereinbefore-styled cause, as stated in the caption attached, and that the preceding transcript attached hereto is a true, accurate and correct computerized transcription of my report of the proceedings had at said session.

I FURTHER CERTIFY that I am not employed by or related to the parties to this matter nor interested in the outcome of this action.

IN WITNESS WHEREOF, I have hereunto set my hand and seal in Tampa, Hillsborough County, Florida, this 26th day of November, 2001.

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Colleen Merritt, Official Court Reporter