i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . 11

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 62

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 64

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . 64

MR. HOLTON WAS DEPRIVED OF HIS RIGHT TO A

RELIABLE ADVERSARIAL TESTING DUE TO THE

STATE’S FAILURE TO DISCLOSE CRITICAL

EXCULPATORY EVIDENCE WHICH WAS NEVER

PRESENTED TO THE JURY IN VIOLATION OF BRADY

v. MARYLAND, 373 U.S. 83 (1963) . . . . . . . . . 64

A. INTRODUCTION . . . . . . . . . . . . . 64

B. CIRCUIT COURT’S RULING . . . . . . . . 64

C. STATE’S APPELLATE CHALLENGE . . . . . . 66

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . 91

MR. HOLTON IS ENTITLED TO RELIEF BASED ON

HIS NEWLY DISCOVERED EVIDENCE CLAIM . . . . . . . 91

ISSUE III . . . . . . . . . . . . . . . . . . . . . . 96

THE CUMULATIVE EFFECT OF THE ERRORS THAT

OCCURRED AT MR. HOLTON’S TRIAL DEPRIVED HIM

OF A FAIR TRIAL . . . . . . . . . . . . . . . . . 96

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 100

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 101

ii

CERTIFICATE OF TYPE SIZE AND FONT . . . . . . . . . . . . 101

iii

Blanco v. State,

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . . 96

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . 64

Cardona v. State,

___ So.2d ___ (Fla. July 11, 2002) . . . . . . . . 66, 72

Cosid v. Bat Steel Products Co., Inc.,

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . 94

Keech v. Yousef,

Kyles v. Whitley

514 U.S. 419 (1995) . . . . . . . . . . . . . . . 74, 90

Maharaj v. State,

778 So. 2d 944 (Fla. 2000) . . . . . . . . . . . . . . 85

McKinzy v. Wainwright,

Occhicone v. State,

768 So. 2d 1037 (Fla. 2000) . . . . . . . . . . . . . 72

Robinson v. State,

770 So. 2d 1167 (Fla. 2000),

citing Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 69

Rogers v. State,

782 So.2d 373 (Fla. 2001) . . . . . . . . . . . . . . 72

Smith v. Wainwright,

iv

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . . . 68, 73

State v. Huggins,

788 So.2d 238 (Fla. 2001) . . . . . . . . . . . . . . 90

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . . 70

Way v. State,

760 So. 2d 903 (Fla. 2000) . . . . . . . . . . . . . . 66

Zeigler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . 93

v

This proceeding involves the appeal of the circuit

court’s grant of Mr. Holton’s third amended motion for

postconviction relief. The motion was brought pursuant to

Fla. R. Crim. P. 3.850. The State stipulated that Mr. Holton

was entitled to a new penalty phase because of a due process

error that occurred during Mr. Holton’s capital trial.

Thereafter, the circuit court granted Mr. Holton a new trial

based upon his Brady claim.

The following abbreviations will be utilized to cite to

the record in this cause, with appropriate page number(s)

following the abbreviation:

"R." – record on direct appeal to this

Court;

"PC-R." – postconviction record on appeal;

"T." – transcript of the evidentiary

hearing;

"Supp. PC-R." – supplemental record on appeal.

1

This is an appeal from an order granting Rudolph Holton a

new trial. The State’s Initial Brief completely omits certain

procedural peculiarities that are illuminating when considered

in context.

At the evidentiary hearing in April of 2001, Mr. Holton

presented previously undisclosed police reports detailing a

complaint by Katrina "Grant" that she had been raped on June

13, 1986 (Def. Ex. 13); this was ten days prior to the murder

of Katrina Graddy on June 23, 1986. Katrina told a police

officer that "Pine" (aka David Pearson) had raped her in a

Tampa motel room. It is very important to note that in the

State’s closing argument on June 29, 2001, Assistant State

"Grant" was in fact Katrina Graddy.

The reason that the State did not challenge the fact that

Katrina "Grant" was in fact Katrina Graddy was that on June

28, 2001, ASA Wayne Chalu obtained a sworn statement from

David Pearson. In this statement, Mr. Pearson advised that he

had known Katrina Graddy all of his life and that Katrina

Graddy had accused him of rape days before her murder:

Q: Okay. During our conversation I asked you

about an incident that Katrina reported where she

alleged that you forced sexual relations on her; is

2

that correct?

A: Yes.

Q: And you explained that to us.

A: Yes.

Q: And how that occurred and where that

occurred?

A: At the Hancock Motel on Florida Avenue.

Q: Did you get arrested for that that night.

A: No.

Q: Did she – tell us what she told the police

once you were talking to the police in regards to

you being arrested.

A: Yeah. She obviously had told them that I had

raped her.

Q: Okay.

* * *

Q: Did you – did you force sex on her?

A: No. No.

Q: We talked about this yesterday. Why did she

have sex with you?

A: It was for crack cocaine.

Q: Okay. And where was that sexual act

performed at?

A: At the Hancock Motel.

Q: In a motel room?

A: Yes.

3

Q: Was it vaginal? Oral?

A: It was in her butt.

Q: I’m sorry?

A: Up in her butt.

Q: So it’s anal sex?

A: Anal sex, yeah.

Q: Okay. And she did that consensually?

A: She did that with me.

Q: After you completed having sex with her

anally, what did she want from you?

A: Some crack.

Q: Did you have any?

A: Yes.

Q: Okay. Did you give it to her?

A: No, she stole it.

Q: Was there some kind of disagreement or

argument that at that time?

A: Yes.

Q: The next question is: Did she go to a phone

and call the police? Or how did it come about that

she notified a police officer?

A: No, actually the police was already at the

motel. I didn’t know it. She didn’t know it

neither. After I slapped her and the crack fell out

of her mouth she said, "I’m going to call the cops

on you." I said, "Well, go ahead." So she went to

the door she said, "They’re out here." So I came to

look, right?

4

Q: Okay.

A: So she left storming out. So rather than to

let the cops come in the room and find the crack, I

just took the crack and I hid it and I met them,

right? So I walked up to the cops, right, and they

asked me did I know her. I said, yeah. He said,

"Well, she’s – she’s trying to say that you raped

her," you know. I said, "No, I didn’t rape her."

So he asked me what happened, and I told him it

was about crack. It was like the whole ordeal was

about crack. It was a trick – sex for drugs.

(Supp. PC-R. 164-8). Pearson also admitted that he used

Donald Smith’s name in the past when he was arrested (Supp.

PC-R. 177).

In fact, the undisclosed police report introduced at the

evidentiary hearing indicated that "Pine" gave the false name

of Donald Lamar Smith when questioned on June 13, 1986 (Def.

Ex. 13). As a result, a second undisclosed police report was

written on June 13, 1986, alleging that David Pearson had

obstructed a police investigation by giving a false name (Def.

Ex. 14). This police report was also introduced into evidence

at the 2001 evidentiary hearing.

Yet, another undisclosed police report was introduced

into evidence in 2001. It was concerning the homicide on June

23, 1986, and indicated that an individual by the name of

Donald Lamar Smith was questioned at the scene of the homicide

after Mr. Smith indicated he knew information about the manner

5

of death that had not been released to the public (Def. Ex.

18).

Donald Lamar Smith testified at Mr. Holton’s 2001

evidentiary hearing. Mr. Smith told the court that he knew

David Pearson, aka "Pine", because they grew up together (T.

238). One morning, in June, 1986, Katrina Graddy came to Mr.

Smith’s house on Harrison Street. Mr. Smith testified:

. . . she came up and asked me to come, can I

ask you something and I said what and she said that

Pine had just raped me. Um, she say that she said

what is your full name and I said Donald Lamar Smith

and she said is your birth date 9-25-57, and I said,

yeah.

* * *

She said well, Pine used your name last night,

yesterday, I think. She said to me Pine raped me

and used your name and told the police --

(T. 240). Mr. Smith testified that Ms. Graddy had bruising on

her neck and she told Mr. Smith that "Pine" choked her and

forced her to have sex (T. 241). Mr. Smith testified that Ms.

Graddy explained that Pine gave her some [crack] rocks, but

she would not have sex with him, so Pine raped her (T. 242).

Thereupon, Mr. Smith and Ms. Graddy left his house and ran

into Pearson (T. 242). Donald Smith testified:

Q: (By Ms. McDermott) Did you say anything to

Pine?

A: Yes, I said, Pine, I said why in the f**k did

you use my name and did this girl.

6

Q: Okay, you told him that why did he use your

name when he raped that girl . . .?

A: Yes, but before I got finished she went

hollering at him.

Q: What did she say to Mr. Pearson?

A: She’s going to get his ass if that’s, that’s

what she’s going to do, you know, you smoked my

s**t.

Q: Okay, and did Pine also tell her that I’m

going to kill your ass?

A: Yes.

Q: For calling the police on me?

A: Yes.

Q: Mr. Smith, when Katrina and Pine were arguing

what happened?

A: Oh, well I kept walking about but people

started coming out.

Q: Okay and why did people start coming out of

their houses?

A: They were getting to loud.

(T. 243).

A week or so later in June of 1986, Mr. Smith noticed

that a house on Scott Street was on fire (T. 244). Mr. Smith

went over to see what was happening (T. 244). On his way to

the house, he saw Pearson "walking fast towards" him (T. 244).

Pearson told him that Katrina was found in the house strangled

(T. 244). Mr. Smith proceeded to walk to the crime scene and

7

when he got near the abandoned house he said: "they found

Katrina strangled" (T. 244). The police questioned Mr. Smith

and asked how he knew the information about Katrina (T. 245).

Mr. Smith told them that someone had told him, but he did not

mention Pearson’s name because there were several people in

the area (T. 245). After producing identification and

answering questions, the police released Mr. Smith (See Def.

Ex. 22).

At the 2001 evidentiary hearing, Donald Lamar Smith

testified that a few weeks after Ms. Graddy’s murder in 1986,

Pearson was at Mr. Smith’s house getting a haircut (T. 246).

At that time, Pearson told Mr. Smith that he, Pearson, had

killed Katrina (T. 252-53).

At the close of the evidentiary hearing in April of 2001,

the presiding judge indicated his desire to have all of the

physical evidence tested for DNA (T. 384-87). When the

testing was completed, closing arguments were scheduled for

June 25, 2001. ASA Chalu appeared on that date and asked for

a continuance "until I’ve had an opportunity to have a

conference in my office to determine exactly what position

we’re going to take and what argument needs to be made" (T.

494). Mr. Holton did not oppose the continuance "as long as

we can get this matter set as quickly as possible" (T. 498).

8

ASA Chalu responded, "I’m going to try to get this in front of

our homicide committee on a regular scheduled meeting for

Thursday afternoon" (T. 498). Thereupon, closings were

scheduled for Friday, June 29, 2001.

continuance of the closing arguments. He explained that David

Pearson had been located and had provided a saliva sample (T.

394). ASA Chalu argued:

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 before a final

determination is made.

(T. 395-96).

Mr. Holton’s collateral counsel responded first by noting

that "the State has Mr. Pearson out there right now and I can

wave to him, he’s out there [in the hallway]. They brought

him into the courthouse today, you know, this is an odd

9

arrangement" (T. 396). Mr. Holton’s collateral counsel then

argued against a further continuance noting the period of time

that had already past in the postconviction process:

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

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 [sic] here

because because [sic] 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.

(T. 399-400).

The continuance was denied, and the parties gave their

closing arguments. Mr. Holton’s collateral counsel argued

that the State’s requests to continue the closing argument

amply demonstrated that even the State’s confidence in the

outcome was undermined:

When you examine this case in its entirety I

mean, I understand the State’s predicament. 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.

(T. 440-41).

At the outset of his closing, ASA Chalu stated:

10

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 this 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.

(T. 443-44). Over objection, the circuit court granted the

State the opportunity to submit the June 28, 2001, transcript

of Mr. Pearson’s sworn statement (Supp. PC-R. 160).

In his closing, ASA Chalu conceded that Katrina Graddy

had reported that she had been raped by David Pearson. He

argued that she waived prosecution because she had not in fact

been raped, "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"

(T. 448-49). As for Donald Smith’s testimony that David

Pearson had admitted the murder of Katrina Graddy, ASA Chalu

argued that Donald Smith’s testimony was "not credible, Your

Honor, it’s not believable. It’s not entitled to any weight

11

at all" (T. 450).

After the closing arguments were concluded, the presiding

judge took the matter under advisement. On November 2, 2001,

the circuit court issued its order vacating Mr. Holton’s

conviction and granting him a new trial (PC-R. 800-20).

Shortly thereafter, the State announced it would be

appealing the order, but that in the meantime it wished to

withdraw the physical evidence and conduct further forensic

testing. ASA Chalu explained that this request was "so that

we can then move forward and prepare for trial while the

appeal is pending" (T. 517). After the State’s request was

granted, ASA Chalu requested the circuit court "to extend

speedy trial" (T. 520). Mr. Holton’s collateral counsel

opposed the request explaining, "[i]t seems like the State is

going to extend speedy trial and do the notice of appeal in

order to get time to investigate the case and come up with

some evidence against Mr. Holton which they have none now" (T.

520).

Under these circumstances, it is clear that not only was

confidence undermined in outcome, but that the State’s purpose

in filing this appeal was simply to keep Mr. Holton on death

row while it tried to find some evidence to justify a retrial.

8, 15)(herinafter IB). The correct spelling of the victim’s

name is Katrina Graddy.

12

At approximately 6:00 a.m. on June 23, 1986, the Tampa

Fire Department was dispatched to 1236 E. Scott Street because

an abandoned house was on fire (R. 205). Upon arriving at

surrounded by garbage and debris (R. 209). Fire Investigator

Brown testified:

I observed the victim, a black female, who was

laying on her back in a spread eagle position with

her head to the east and her feet to the west. She

was laying on what appeared to be her clothing, and

she had a cloth tied around her throat and one of

her wrists, and a bottle lying between her legs.

(R. 217). The fire fighters extinguished the incendiary fire

that was estimated to have burned for three to four hours (R.

213).

Later that morning, the police spoke with Carrie Nelson,

a woman who lived behind the abandoned house. She told the

police that she and Willie Dan Simmons sat on her porch the

evening before the fire and she saw Rudolph Holton enter the

house at approximately 11:00 p.m. (R. 592). According to

Nelson, Mr. Holton wore a white tee shirt with red writing on

wore a white tee shirt with red lettering, (IB at 16),

however, Appellant fails to point out that Nelson testified

that it was not the tee shirt that had been obtained from Mr.

Holton’s room at Mr. Clemmons’ house and introduced into

evidence (R. 597).

13

went into her house around midnight (R. 594).

That same day, the police interviewed Johnny Newsome.

The police approached Newsome and requested that he speak to

them at the police station (R. 358, 464). The police informed

Newsome that they were looking for Rudolph Holton (R. 464).

Newsome placed Mr. Holton, carrying a black shaving bag, with

Ms. Graddy at the abandoned house (R. 350). Newsome testified

and Ms. Graddy on the side of the abandoned house, talking (R.

351). However, Newsome’s testimony about the time was

inconsistent with the statement he provided to the police. In

his statement, Newsome told the police that he saw Mr. Holton

"just after dark" or at "dusk" (R. 465). Newsome also told

the police that he saw Mr. Holton on the morning Ms. Graddy’s

body was found and Mr. Holton was in possession of the black

shaving bag (R. 466).

On July 9, 1986, Mr. Holton was charged by indictment of

first degree murder, sexual battery and arson in the first

14

degree (R. 795).

On July 25, 1986, defense counsel, Mina Morgan, filed a

Motion for Police Reports in which she requested "any police

reports" (R. 799). Trial counsel renewed this request the

weekend before trial (R. 847).

During the defense’s investigation, counsel learned from

the victim’s family and friends that Ms. Graddy had reported

that she was raped approximately a week before her murder by a

man who used the street name of "Pine". In her first motion

for continuance, trial counsel informed the court that she was

investigating the information about Pine’s rape of Katrina

Graddy (R. 817-9). The court denied defense counsel’s motion.

Further, on October 29, 1986, trial counsel requested

additional funds for her private investigator. Among the

reasons why counsel needed additional funds was that she

believed she had ascertained the true identity of Pine and was

investigating the rape further (R. 823-6). The court

authorized additional funds for the defense investigator (R.

828).

On December 1, 1986, just five months after Ms. Graddy’s

murder and Mr. Holton was indicted, Mr. Holton’s capital trial

began.

At trial, the State presented the testimony of Nelson and

the hitchhiker’s tee shirt was red (R. 420, 425).

15

Newsome (R. 592-7, 347-68, 591). In addition to Nelson and

Newsome placing Mr. Holton at the abandoned house, the State

elicited testimony from Carl Schenck that Mr. Holton resembled

the person he dropped off across the street from the abandoned

up a hitchhiker (R. 325). He described the hitchhiker as, "A

black male with pretty frizzy hair, a good amount of it,

wearing a white t-shirt with lettering on it, a ball cap with

something embroidered on it . . . and dark blue pants and a

that when shown the photo array he could not make a positive

identification of Mr. Holton and that Mr. Holton’s photo only

"resembled [the hitchhiker] by the shaving bumps and hair."

(R. 344).

Schenck drove the hitchhiker to Tampa and spent several

hours with him smoking marijuana, drinking and going to bars

(R. 331). Around 10:00 or 11:00 p.m., the hitchhiker left

Schenck on Scott Street, near the abandoned house (R. 332).

Schenck passed out in his car and awoke the next morning to

the sound of fire engines (R. 333). The police obtained the

hitchhiker’s black shaving bag from Schenck’s car, where it

Initial Brief (IB at 10, 17, 18, 19, 20, 23, 25, 32). The

correct spelling of Birkins’ first name is Flemmie.

16

had been left by the hitchhiker the previous night (R. 333).

The medical examiner testified that the cause of death

was strangulation (R. 268). Further, Dr. Lardizbal testified

at trial that the fire occurred postmortem (R. 270), and he

noted that the only harm to the victim, other than the

strangulation was that a broken bottle was partially inserted

into the victim’s anus (R. 266).

The State also inquired about the photographs of the

marks on Mr. Holton’s chest. Dr. Lardizbal testified that the

marks appearing in the photographs were consistent with

scratches caused by a hand (R. 278). Dr. Lardizbal opined

that the marks were consistent with healing abrasions that

were between twenty-four and thirty-six hours old at the time

of the photographs (R. 285).

The State’s key witness in the prosecution of Mr. Holton

that he was incarcerated with Mr. Holton on June 26, 1986.

twice. During the first conversation Mr. Holton asked Birkins

for a cigarette and told Birkins that he was charged with

murder (R. 288). Shortly thereafter, around 5:00 p.m., Mr.

that Birkins’ guidelines "called for a sentence of 3 ½ to 5 ½

years in prison" (IB at 11). In truth, at Mr. Holton’s trial

the jury was told that Birkins’ guidelines called for a

sentence of 3 ½ to 4 ½ years in prison.

17

Holton met Birkins in the clinic and told Birkins that: "he

had killed a girl, that he had strangled her." (R. 295, 289).

Mr. Holton then told Mr. Birkins that after he killed the

victim, he went to the Star Service Station on Nebraska to get

a can of gas and he set the house on fire (R. 289).

Birkins adamantly denied that he wanted or was receiving

any benefit for his testimony (R. 290, 301). He initially

told the jury that the three year sentence he was receiving

was based on the sentencing guidelines and accounted for his

testified that he "pled open" which meant that he rejected the

State’s plea offer of three years and would allow the judge to

decide on his sentence (R. 293). Birkins told the jury that

he came forward because "it’s not right for anyone to kill a

young girl" (R. 297).

In regard to physical evidence, the State presented the

testimony of John Quill, a special agent with the Federal

Bureau of Investigation. Agent Quill testified about the

three hairs collected from the victim’s mouth. Agent Quill

conducted microscopic analysis on the hairs and determined

house.

18

that the hairs exhibited, "Negroid characteristics" (R. 316),

and one of the hairs was a "transitional" body hair, i.e. a

hair from the nape of the neck to the head or from the lower

abdomen to the pubic area (R. 322). Agent Quill told the

jury, that based upon the characteristics of the hairs he

could not exclude Mr. Holton as being the source of the hair

(R. 317).

Detective Kevin Durkin testified at trial that he was the

lead detective in the investigation of Katrina Graddy’s murder

(R. 371). Det. Durkin testified that Mr. Holton initially

made a statement that he had previously been in the abandoned

house to use drugs, but that he had not been in the front room

the abandoned house, which had not been secured, and located

an empty Kool cigarette pack and a syringe in the front room

of the house (R. 379). Mr. Holton had already told Det.

Durkin that he used the syringe a few weeks before the crime

and left it on a windowsill in the house. Upon questioning

Newsome near the house the day of the crime, but it was in the

afternoon and Mr. Holton did not enter the house (R. 382,

19

388). Mr. Holton denied that he left the cigarette pack in

the house on the day of the crime and said that the last time

he was in the front room of the house was a few days before

the crime (R. 382-383). A latent fingerprint on the cigarette

pack was identified as Mr. Holton’s right, middle fingerprint

(R. 405).

Mr. Holton voluntarily provided hair, blood and

fingernail scrapings. No other physical evidence, including

items found at the crime scene or in the black shaving bag

were connected to Mr. Holton.

In his defense, Mr. Holton presented an alibi.

Consistent with Mr. Holton’s initial statement to the

detectives, Solodon "Red" Clemmons testified that he lived in

a house Charlotte Street (R. 388, 491). On the night of June

the preceding week or so (R. 494). Mr. Clemmons recalled the

night because Ms. Graddy’s body was found the next morning and

it caused a scene in the neighborhood (R. 496). Mr. Clemmons

testified that Mr. Holton arrived at the house between 9:00

and 10:00 p.m. and went to sleep (R. 495). He saw Mr. Holton

sleeping at 6:00 a.m. when he awoke to take his medicine (R.

497).

Mr. Clemmons believed that Mr. Holton did not leave the

20

house during the night because: 1) he did not hear any noise;

2) his dog had young puppies at the time and would bark if

anyone moved around the house and there was no barking that

night; 3) he didn’t sleep much at night and was not a heavy

sleeper when he did; and 4) his door was locked when he awoke;

the door locked automatically after opening it so it was

necessary to have a key to reenter the house. Mr. Holton did

not have a key to the door (R. 497-9).

Katrina Graddy’s mother testified that she believed

(R. 524). Bernard Black, Katrina’s stepfather, recalled that

Katrina left the house a little later, between 11:00 and 11:30

p.m. (R. 527).

In order to further undermine the State’s case,

particularly the jailhouse snitch’s testimony, Mr. Holton

presented the testimony of Paulette Leonard, the attendant who

worked at the Star Service Station on Nebraska Avenue on the

late evening/early morning of the crime. Ms. Leonard

her they showed her a picture of Mr. Holton and Ms. Leonard

told the police that "she was sure" Mr. Holton did not

21

two (2) people purchased gas in a container during her shift,

an elderly woman with her son and a man she described in his

mid-forties with black and gray hair (R. 482).

At the trial, the defense wanted to present the testimony

of Pamela Woods, one of the last people to see Katrina Graddy

alive. Ms. Woods was properly subpoenaed by defense counsel

(R. 487). Defense counsel requested that the Judge Coe assist

her in locating and bringing Pamela Woods to court because she

was an "essential defense witness" and Mr. Holton could not

secure a fair trial without her testimony (R. 487). Judge Coe

told trial counsel, "There is nothing I can do about it." (R.

489).

When Ms. Woods did not appear, trial counsel was allowed

to present portions of Ms. Woods’ deposition to the jury. The

Assistant State Attorney strenuously objected, "She wants to

be able to argue that somebody else did it named Pine, and the

case law says you are not supposed to do that. You don’t

point fingers at people during trial." (R. 545). Thereafter,

Judge Coe prohibited the defense from introducing portions of

the deposition which discussed the individual known as "Pine"

(R. 548, 551).

The jury heard the following about Pam Woods’ account of

22

the night of Ms. Graddy’s murder:

The witness, Pamela Woods, said at the

deposition that the alleged victim got into an

automobile with a black male, the black male not

being the defendant, at the intersection of Scott

and Nebraska going on midnight, something to twelve

o’clock midnight, June 22, 1986, and that’s the last

time the witness, Pamela Woods, saw her, that is the

alleged victim.

* * *

. . . Pamela Woods, having been shown a picture

of the witness, Schenck, said he looked familiar,

that she thinks she had seen him in the area on the

night Katrina disappeared, that the witness, Schenck

was buying drugs.

The witness, Pamela Woods, and the alleged

victim, Katrina Ann Graddy, were good friends. . . .

Pamela Woods and the alleged victim, Katrina Ann

Graddy, passed by the defendant on two different

nights. Once the defendant asked the two where he

could get some money from. The second time he asked

where he could get some coke from.

The witness, Pamela Woods, gave no time frame as

to when these two alleged encounters with the

defendant took place.

The witness, Pamela Woods, stated at her

deposition that she had never seen the defendant

with the victim. The witness, Pamela Woods, stated

at her deposition that she and the victim got

together about 10:00 p.m. on the evening before the

disappearance of the alleged victim, Katrina Ann

Graddy, and she thinks that they went out on the

streets about 11:30 or 12:00 midnight, the evening

just before the alleged incident.

The witness, Pamela Woods, had never seen the

defendant with a little black case, a shaving kit

type. The witness, Pamela Woods, at her deposition

stated that she saw the defendant on June 22, 1986,

when it was dark out, approximately 8:00 p.m., in

the hole with a black bag, the approximate height

and length of a legal file, this being a legal file,

one foot thick.

The witness, Pamela Woods, further said that the

23

defendant had a lot of change. The witness, Pamela

Woods, further stated during her deposition that

sometime during the evening of June 22, 1986, that

she, Pamela Woods, had smoked some cocaine.

(R. 588-90).

What defense counsel wanted the jury to hear from Pamela

Woods also included that the individual with whom Ms. Graddy

left the area was a man with whom Ms. Woods had "tricked"

previously (Def. Ex. 33, p. 10). The man "kind of scared" Ms.

Woods (Def. Ex. 33, p. 10). Ms. Woods testified that she felt

"[l]ike he would take something, or make you do it if you

didn’t want to do it. Something, he was weird" (Def. Ex. 33,

p. 10). Ms. Woods testified at her deposition that the man

had been rough with her so she got out of the car (Def. Ex.

33, p. 16-17).

Ms. Woods also described her interview with the police

officers about the night of Ms. Graddy’s murder, "[T]hey was

trying to ask me, did Rudolph did it, you know, like they was

saying already that he did it, you know? Trying to make me

say, "Yeah," you know, "he did it," not make me but by them

talking to me and me listening to them . . ." (Def. Ex. 33, p.

14).

As to "Pine", Ms. Woods testified at her deposition that

when she asked if anyone had seen Ms. Graddy on the night of

her murder, she was told that Ms. Graddy walked through the

24

park with "Pine" (Def. Ex. 33, p. 29). Ms. Woods also

described a rape that she and Katrina witnessed take place in

the abandoned house on Scott Street. Ms. Woods said that the

rape occurred the night before Ms. Graddy’s murder and they

could see the male individual hitting the female (Def. Ex. 33,

p. 18-20). Ms. Graddy insisted that the male was "Pine", but

Ms. Woods did not think it looked like "Pine" (Def. Ex. 33, p.

20). Ms. Woods also linked "Pine" to Schenck because she

testified that "Pine" brought white individuals to the area in

order to buy drugs (Def. Ex. 33, p. 28). Additionally, Ms.

Woods linked "Pine" to the black bag. When shown the black

shaving kit, she remarked, "Pine had something like that"

(Def. Ex. 33, p. 35). However, all reference to "Pine" was

excluded from the statement the jury heard.

The State’s argument to the jury focused on Flemmie

Birkins. Assistant State Attorney Joe Episcopo argued:

For the State Attorney’s Office, this case

really begins with Flemmie Birkins. Flemmie Birkins

hears about the murder of the victim and how it was

done. In effect, he becomes an indirect eyewitness

to the account that was given to him by that man.

What motive does Flemmie Birkins have to frame him?

He tells the deputy that same day, four days later,

he talks to our detectives.

What did he get for telling the deputy and

telling the detectives? He lost his trustyship

status. His life was threatened and when he tried

to get an ROR, he couldn’t get it. That’s what he

got. And he still came into court yesterday or the

day after yesterday and, under oath from this stand,

25

told you the same exact account that he told those,

the deputy and detectives months ago. What is his

motive?

* * *

. . . What is the crux of that confession? "I

killed the girl and burned her and strangled her."

Those are the three key elements, burning,

straggling, (sic), killing and sex and rape. They

are all there. There are some details that are not

exact, that’s right, but what is his motive to lie?

* * *

Detective Childers tells you he is a unique

informant, and he is a unique informant and a unique

snitch. Why? I’ll tell you why. Because, ladies

and gentleman, this is a horrible crime, and that’s

why he came forward. That’s right. He has got

eight convictions but under the sentencing

guidelines, he scores out to three-and-a-half to

four-and-a-half years, and those are scored in, and

he’s got two more waiting.

So for his ten crimes, he gets three-and-a-half

to four-and-a-half. That is how horrible a criminal

he is.

(R. 705-7). The State also focused on the hairs found on the

victim’s mouth and argued that the hairs linked Mr. Holton to

the crime:

Hairs. No, we can’t say these are the hairs of

the defendant. We never purported to say they were

the hairs of the defendant. We wanted to show that

she died with Negro hairs in her mouth. We can say

that they are not her hairs. You know why? Because

they came from either here or here or back here.

That is what Quill said.

How are hairs down there going to get in her

mouth? And there are no Caucasian hairs. Proof

beyond a reasonable doubt, Negro hairs in her mouth

from a certain location on the body, and I would

just defy anybody to tell me how those are her

26

hairs, how she got them.

(R. 707-8). In response to defense counsel’s argument that

the State had not proved a motive, the State hypothesized

that Mr. Holton and Katrina Graddy agreed to exchange drugs

for sex (R. 716-7). The State argued that Mr. Holton and Ms.

Graddy met in the abandoned house between 11:00 p.m. and

midnight and they decided to meet later at the house so that

they could have sex and Mr. Holton would provide drugs for

Ms. Graddy (R. 717). The State told the jury that,

"sometime, 2:00, 3:00 in the morning, whatever, they met.

They went into the house and something went wrong" (R. 717).

The State concluded by telling the jury:

He doesn’t like this woman. He hates this

woman. Why does he hate this woman? Because you

can see what he did with this bottle. That’s the

charge he has been charged with. That’s right.

There is no evidence of semen. But that was because

our bigshot over here couldn’t do it, and he killed

her because he couldn’t, because she wouldn’t help

him, because she wouldn’t satisfy him. Maybe she

hurt him with that free hand. Maybe she grabbed him

somewhere and squeezed him. Maybe he lost his

temper.

(R. 719).

During the jury’s deliberations, Pam Woods arrived at the

courthouse. The court did not interrupt the deliberations to

allow the defense to present Ms. Woods’ testimony. Oddly

enough, during the deliberations, the jury requested a copy of

contact occurred between the State and Judge Coe in

preparation of a sentencing order imposing a death sentence,

and that as a result, a re-sentencing was required.

Accordingly, discussion of the penalty phase proceedings of

Mr. Holton’s trial is unnecessary. Mr. Holton would just note

that the entire penalty phase lasted less than an hour (R.

885), and that the jury, after deliberating 37 minutes,

recommended a death sentence by a vote of 7 to 5.

27

Ms. Woods’ statement and without objection from the parties

the court provided the jury with the written statement the

court had previously read (R. 744). The jury found Mr. Holton

On December 15, 1986, trial counsel filed a Motion for

New Trial which included the argument that Mr. Holton did not

receive a fair trial because of the court’s failure to grant a

continuance so that the defense could present the testimony of

Pamela Woods (R. 867-8). On December 30, 1986, a hearing was

held in which Judge Coe denied the defense’s motion for new

trial (R. 985).

On January 5, 1987, Mr. Holton filed a Notice of Appeal.

Mr. Holton filed his initial Rule 3.850 motion in

January, 1993 (PC-R. 46-91). After filing his motion, the

parties litigated public records (Supp. PC-R. 18-24, 35-7).

In August, 1996, the State responded to Mr. Holton’s

28

initial 3.850 motion (PC-R. 92-103).

Mr. Holton filed his second amended Rule 3.850 in July,

1998, and he asserted that he was innocent of the crimes for

which he was convicted and sentenced (PC-R. 140-266).

A few days after filing his motion, Mr. Holton also filed

a motion to perpetuate the testimony of Willie Dan Simmons, a

critical defense witness, because Mr. Simmons was ill with

lung cancer (PC-R. 339-41). On September 2, 1998, the court

granted the motion (PC-R. 342).

In August, 1998, Mr. Holton sought the disclosure of

grand jury testimony because notes in the State’s files

reflected a material discrepancy between Detective Durkin’s

testimony before the grand jury and his trial testimony (Supp.

PC-R. 76-8). The State informed Mr. Holton and the circuit

court that the court reporter’s notes from the grand jury

proceedings had not been transcribed and were destroyed (Supp.

PC-R. 268-9).

On September 29, 1998, the State responded to Mr.

Holton’s second amended Rule 3.850 and urged the circuit court

to summarily deny Mr. Holton’s claims (PC-R. 267-338).

On December 22, 1998, Mr. Holton filed a Motion to

Inspect, Examine and Test Evidence (PC-R. 357-8). Mr. Holton

requested that he be allowed to test the three hairs found on

29

the victim’s mouth with mitochondrial DNA (mt DNA), testing.

After a Huff hearing was held, on January 29, 1999, the

circuit court granted Mr. Holton an evidentiary hearing on

several claims (PC-R. 360-83).

In February, 1999, the State filed a Motion for Rehearing

requesting the circuit court to limit the scope of the

evidentiary hearing. (PC-R. 439-42).

Also in February, 1999, Mr. Holton’s counsel left her

employ with the Capital Collateral Counsel for the Middle

Region (CCC-MR). Mr. Holton requested that the circuit court

associated with litigating his Rule 3.850 motion (Supp. PC-R.

358-80, 381-91). The court granted Mr. Holton’s motion (PC-R.

443). CCC-MR appealed the court’s order. Holton v. State,

Case No. 95,141. In May, 1999, Mr. Holton requested that the

circuit court transfer the representation of his case from his

Northern Region, because his attorney had accepted a position

with CCC-NR (PC-R. 458-9, Supp. PC-R. 397-403). In June,

1999, the court granted Mr. Holton’s motion (PC-R. 460-1).

CCC-MR moved to dismiss the appeal to this Court and this

Court granted that motion.

30

In September, 1999, Mr. Holton filed an extensive

memorandum in support of his motion to test evidence (PC-R.

480-8). On December 6, 1999, the court granted Mr. Holton’s

motion for DNA testing on the three hairs obtained from the

victim’s mouth (PC-R. 500-2; Supp. PC-R. 419-25). That same

day the court denied the State’s motion to limit the scope of

the evidentiary hearing (PC-R. 543-4; Supp. PC-R. 419-25).

On August 3, 2000, the State and Mr. Holton entered a

Joint Stipulation stating, "The State concedes error which

requires a new penalty phase. Specifically, the State

acknowledges error as to Claim X of Defendant Holton’s Rule

3.850 motion." (Supp. PC-R. 121-2). Claim X was the claim

regarding the State’s improper preparation of the Mr. Holton’s

sentencing order. Due to the stipulation, Mr. Holton withdrew

his claims regarding penalty phase errors (Supp. PC-R. 121-2;

Supp. PC-R. 464-9).

On January 8, 2001, Mr. Holton amended his Rule 3.850

with the results of the mt DNA analysis, which excluded Mr.

Holton from being the source of the hairs found on the

victim’s mouth (PC-R. 545-633).

After a hearing on February 19, 2001, wherein the State

conceded that an evidentiary hearing should be held on Mr.

Holton’s Brady and Giglio claims, the circuit court entered an

31

order expanding the scope of the evidentiary hearing to

include those issues (PC-R. 634-5; Supp. PC-R. 473-9).

The evidentiary hearing was held on April 18 - 20 with

closing argument on June 29, 2001. At the evidentiary

hearing, Mr. Holton presented evidence that David Pearson, aka

"Pine", the individual who Katrina Graddy maintained anally

raped her ten days before her murder, confessed to murdering

Ms. Graddy shortly after the crime.

Mina Morgan, Rudolph Holton’s trial attorney testified

that she had been appointed in July, 1986, to represent Mr.

Holton (T. 280). In discussing her representation of Mr.

Holton, Ms. Morgan testified about her schedule in the four

months from her appointment to Mr. Holton’s capital trial. In

those months, Ms. Morgan was involved with several trials,

including a two week trial that immediately preceded Mr.

Holton’s case (T. 282). The two weeks preceding Mr. Holton’s

trial, Ms. Morgan worked eighteen hour days on another case

(T. 283). Essentially, Ms. Morgan prepared for Mr. Holton’s

trial over Thanksgiving weekend (T. 283). She testified, "I

went to trial in December because I was dragged there

screaming and kicking and knowing that I wasn’t adequately

prepared." (T. 333).

As to her theory of defense, Ms. Morgan wanted to prove

32

that Mr. Holton was innocent (T. 287). In order to establish

that Mr. Holton was innocent, Ms. Morgan tried to investigate

other suspects (T. 287-8). Ms. Morgan hired Sonny Fernandez

to assist in the investigation of Mr. Holton’s case (T. 70).

During the pretrial investigation, the defense learned

that the victim claimed she had been raped about a week before

her murder by an individual who used the street name "Pine"

(T. 284). The victim’s family and friends told Ms. Morgan and

her investigator about the rape (T. 85-6, 285, Def. Exs. 19,

20, 21, 31 & 32). The victim’s stepfather, Bernard Black,

testified at his deposition:

A: . . . Katrina had told me a week before this

happened to her, that Pine had raped her and then,

see they had picked him up but he had used another

name by the name of Donald something. And that’s

about all I know about Pine.

Q: Did Katrina tell you whether or not she

reported the rape to the police?

A: Yes, she did. She said she reported it.

Q: Do you know if she used her own name when she

reported it or if she was --

A: No, she – I don’t think so. I don’t think so

because she had a warrant out on her, too, because

she had got picked up for prostitution . . .

(Def. Ex. 20, p. 6). "Pine" became Ms. Morgan’s primary

suspect (T. 288).

Despite her investigation, trial counsel could not

33

ascertain the true identity of "Pine", although at one time

she thought that she had discovered who "Pine" was (T. 287).

Mr. Fernandez corroborated trial counsel’s recollection as to

the defense’s inability to ever learn "Pine’s" true identity

(T. 85). Mr. Fernandez also testified to his efforts in

attempting to ascertain "Pine’s" identity, "I contacted the

informants. I was up and down Nebraska Avenue talking to

different people and I’d go to the Kentucky Fried Chicken and

sit there for a couple of hours talking to people that came in

and out. It was right down the street from the crime scene."

(T. 98). To Mr. Fernandez’ knowledge, the police did not

investigate "Pine" in regards to Ms. Graddy’s murder (T. 99).

At the evidentiary hearing, Ms. Morgan reviewed two

police reports, both arising out of the same incident and

dated June 13, 1986, ten days before Ms. Graddy’s murder. Ms.

Morgan testified that neither document was disclosed to her

before Mr. Holton’s trial (T. 289)

In fact, the police report introduced as exhibit 13

stated:

INTERVIEW: B/F complainant stated that she

voluntarily went to the suspect (sic) room at the

Park II Motel to engage in conversation. After (10)

minutes the suspect ordered her to remove her

clothes "or else". She became frightened and

removed her clothes. He then grabbed her from

Lamar Smith. (IB at 21, 22). Mr. Smith’s first name is

Donald.

34

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 this

sex act. The complainant does not wish to have the

suspect arrested at this time.

(Def. Ex. 13). The police report also reflects that Ms.

Graddy signed a complaint withdrawal affidavit which stated,

"I may request an arrest warrant at a later date if I so

desire." (Def. Ex. 13). And, despite the fact that Ms. Graddy

withdrew the complaint regarding the sexual battery, Pearson

was arrested and charged with obstruction by disguising

identity (Def. Ex. 14).

In her testimony, Ms. Morgan noted that the reports

included information that David Lorenzo Pearson identified

the significance of the undisclosed reports:

[H]ad I had exhibit 13 and 14 I would have seen

a tie between Pine, David, David Pearson. Pine

being

David Pearson and also a connection between him and

Donald Smith.

Through Donald Smith I would have known they

knew each other and I could perhaps have gotten out

of Donald Smith where to find Pine, what Pine’s real

name was and could run him down. It would also have

been very significant to know that Katrina Graddy

ten days before her death had made a complaint about

Pearson claiming that he had anal intercourse with

35

her. That she eventually dropped that charge but

that he did get, he did get interviewed for it and

ended up being arrested not for that charge but for

giving a false name.

* * *

Q: (By Mr. McClain) . . . In terms of the anal

sexual assault did that in fact tie into the manner

in which she was found dead?

A: It did in my mind because it was a broken

bottle crammed up her anus.

Q: So that would be something that from your

perspective as a defense attorney would have been

significant if you had the report showing that it

had been an anal sexual assault?

A: Yes, it would have.

(T. 291-2). Mr. Fernandez agreed with Ms. Morgan’s assessment

that the police reports were relevant and significant (T. 91).

Indeed, ASA Episcopo testified that he was aware that Ms.

Morgan was pursuing a lead regarding a prior alleged rape of

the victim (T. 49). Mr. Episcopo also stated that had he had

any reports about the rape he would have disclosed them (T.

rape, Mr. Episcopo agreed that, "[t]here was, could be a

connection" (T. 51). Mr. Episcopo had no recollection as to

whether he turned over the police reports to defense counsel

(T. 53).

Ms. Morgan also reviewed a police report dated June 23,

depositions of any officer who submitted a report. Officer

Lawless signed a report, other than the "Donald Smith" report

with Officer Southwick. Thus, Ms. Morgan was led to believe

that Officer Lawless did not have any additional information

from Officer Southwick and she only deposed Officer Southwick

(T. 296-9, Def. Ex. 30).

36

1986, which contained information about Donald Lamar Smith and

asking if Katrina had been "choked" (T. 291; Def. Ex. 18).

Initially, Ms. Morgan believed that she had received the

report at the time of Mr. Holton’s trial. (T. 293). However,

after reviewing her original trial file and notes, Ms. Morgan

did not find the report and stated that she did not receive

Officer Lawless’ report concerning Donald Smith because she

Further, Mr. Fernandez, the trial investigator never saw the

report at the time of Mr. Holton’s trial (T. 82).

Mr. Smith was not listed on the State’s discovery to Ms.

Morgan (T. 295, R. 810-5, 822). The report indicates that Mr.

Smith was interviewed by Det. Durkin, the lead detective in

the investigation, and Det. Durkin testified at the

evidentiary hearing that he had no recollection of such an

interview (T. 378). Further, despite the indication that Det.

Durkin interviewed Mr. Smith, none of his reports indicate

interview occurred with Paulette Leonard, Solodon "Red"

Clemmons or Willie Dan Simmons, yet, all three individuals

were interviewed by the police. In addition to Donald Smith,

Leonard, Clemmons and Simmons all had information that

supported Mr. Holton’s claim of innocence and undermined the

prosecution’s case. At the evidentiary hearing, Detective

Noblitt characterized Mr. Clemmons alibi, "He didn’t know

anything beyond when Mr. Holton went to bed that night." (T.

366). Det. Noblitt indicated that he did not think this

information was relevant.

37

Trial counsel testified that the Donald Smith police

report contained specific identifying information for Mr.

Smith, including his address and Florida driver’s license

number (T. 300). Ms. Morgan believed that with this

information she could have located Mr. Smith (T. 300). In

assessing the value of the police report, Ms. Morgan

testified, "I would have wondered how this individual would

know [the victim] was choked at all . . . he would have been a

suspect in my mind." (T. 301). Likewise, Mr. Fernandez

testified, "someone came up . . . and was giving information

that the general public would not have knowledge of." (T. 84).

The connection of Pearson to "Pine" was also significant

to trial counsel because during Pamela Woods’ deposition, she

testified that "Pine" brought white people into the

of Pearson. He testified that Pearson resembled the

hitchhiker more than Mr. Holton.

(Def. Exs. 40, 43 & 44).

38

neighborhood to buy drugs (T. 305). Thus, Ms. Morgan would

have shown a picture of Pearson to Carl Schenck, the white

male who brought the hitchhiker from St. Pete to Tampa, in

In fact, Carl Schenck testified at the evidentiary

hearing. He reiterated that, at trial, he did not positively

identify Mr. Holton as the hitchhiker. After viewing photos

of Mr. Holton and Pearson from 1986, (not knowing who was

depicted in the photos), Schenck selected the photo of Pearson

as resembling the hitchhiker more than the photo of Mr. Holton

(T. 163; see also Def. Ex. 26). Schenck testified that the

Schenck identified Mr. Holton’s photo in 1986, he remarked to

the officer that Mr. Holton had "cleaned up" and the officer

told him, "they had to do everything they can to change his

appearance." (T. 169). Schenck also revealed that before he

testified in 1986, the police told him that they had the right

guy and Mr. Episcopo showed him a photo of the victim at the

crime scene, nude (T. 170-1).

39

Pearson’s connection to Ms. Graddy’s murder was further

developed because Pearson’s criminal records included

references that Pearson carried a black leather pouch, with a

description similar to the shaving bag obtained from Schenck’s

car the morning that Katrina Graddy’s body was discovered

(Def. Ex. 15 & 16). In fact, Pam Woods testified in her

deposition that "Pine" carried a small black pouch (T. 309,

Def. Ex. 33, p. 35). Trial counsel testified that she would

have followed the Pearson connection to the black pouch had

she had "Pine’s" name so that she could research his criminal

history (T. 308).

ASA Episcopo did not recall turning over the documents

regarding David Pearson being seen with a black pouch (T. 54).

Additionally, he believed that the documents were too vague

for him to even be aware of them, but he did concede that

Pearson’s case was in the division which he oversaw (T. 54,

56).

Unfortunately, trial counsel never discovered that "Pine"

was David Pearson or Donald Smith’s connection to the Graddy

homicide. Had trial counsel known of Donald Smith’s statement

at the crime scene or his connection to Pearson, aka, "Pine",

she would have discovered that Donald Smith provided evidence

that Pearson killed Ms. Graddy.

interviewed Mr. Smith he lived in a house on Harrison Street –

the same house he lived in since 1986.

Smith’s testimony about the events that transpired a few days

before Ms. Graddy’s murder. Ms. Smith testified that in 1986,

she and Donald Smith lived together on Harrison Street (T.

149). Ms. Smith knew Pearson, or "Pine" as she called him,

from grade school (T. 150). Ms. Smith was also familiar with

Katrina Graddy because she went to school with her sister (T.

150). Ms. Smith recalled that sometime in mid-June, 1986,

40

Donald Smith testified at Mr. Holton’s evidentiary

hearing. Mr. Smith told the court that he knew David Pearson,

aka, "Pine", because they grew up together (T. 238). One

morning, in June, 1986, Katrina Graddy came to Mr. Smith’s

. . . she came up and asked me to come, can I

ask you something and I said what and she said that

Pine had just raped me. Um, she say that she said

what is your full name and I said Donald Lamar Smith

and she said is your birth date 9-25-57, and I said,

yeah.

* * *

She said well, Pine used your name last night,

yesterday, I think. She said to me Pine raped me

and used your name and told the police –

(T. 240). Mr. Smith testified that Ms. Graddy had bruising on

her neck and she told Mr. Smith that "Pine" choked her and

forced her to have sex (T. 241). Mr. Smith testified that Ms.

Graddy explained that Pine gave her some crack rocks, but she

Katrina came to the Smith house and asked for Big Donald (T.

151). Ms. Smith was present when Katrina told her husband

that Pearson raped her and used Donald Smith’s name when he

spoke to the police (T. 151). Mr. Smith told Katrina that he

would straighten it out (T. 152).

41

When Mr. Smith and Ms. Graddy left his house they ran

into Pearson (T. 242). Donald Smith testified:

Q: (By Ms. McDermott) Did you say anything to

Pine?

A: Yes, I said, Pine, I said why in the f**k did

you use my name and did this girl.

Q: Okay, you told him that why did he use your

name when he raped that girl . . .?

A: Yes, but before I got finished she went

hollering at him.

Q: What did she say to Mr. Pearson?

A: She’s going to get his ass if that’s, that’s

what she’s going to do, you know, you smoked my

s**t.

Q: Okay, and did Pine also tell her that I’m

going to kill your ass?

A: Yes.

Q: For calling the police on me?

A: Yes.

Q: Mr. Smith, when Katrina and Pine were arguing

what happened?

A: Oh, well I kept walking about but people

started coming out.

Q: Okay and why did people start coming out of

their houses?

42

A: They were getting to loud.

(T. 243).

A week or so later, Mr. Smith noticed that a house on

Scott Street was on fire (T. 244). Mr. Smith went over to see

what was happening (T. 244). On his way to the house, he saw

Pearson "walking fast towards" him (T. 244). Pearson told him

that Katrina was found in the house strangled (T. 244). Mr.

Smith proceeded to walk to the crime scene and when he got

near the abandoned house he said, "they found Katrina

strangled" (T. 244). The police questioned Mr. Smith and

asked how he knew the information about Katrina (T. 245). Mr.

Smith told them that someone had told him, but he did not

mention Pearson’s name because there were several people in

the area (T. 245). After producing identification and

answering questions, the police released Mr. Smith.

A few weeks after Ms. Graddy’s murder, Pearson was at Mr.

Smith’s house getting a hair cut. (T. 246). Mr. Smith and

Pearson discussed Ms. Graddy’s murder and Pearson explained

why he killed her, "b***h did smoke my s**t and called the

police, f**k you." (T. 246). Mr. Smith informed his

girlfriend and future wife, Berndoris, and his friend George

Smith about what Pearson told him (T. 246). Mr. Smith

testified that in 1986, if he had been asked he would have

43

testified at Mr. Holton’s trial about the information he

possessed about the rape and subsequent murder of Katrina

Graddy (T. 248).

George Dewey Smith corroborated Donald Smith’s testimony.

George Smith grew up with Pearson and Donald Smith (T. 195).

After Ms. Graddy’s murder, Donald Smith told the witness that,

"Pine had told [Donald] that he had did it" (T. 196). George

Smith confronted Pearson about the confession, and Pearson did

not deny it, but he walked away (T. 197). George Smith also

commented that Pearson was never the same after Ms. Graddy’s

murder (T. 197).

In addition to the compelling evidence of Pearson’s

guilt, at the evidentiary hearing, Mr. Holton also presented

evidence that several documents relating to Flemmie Birkins

and other witnesses had been suppressed.

Assistant State Attorney Joe Episcopo testified that he

prosecuted Mr. Holton in 1986 (T. 37). Mr. Episcopo recalled

that Flemmie Birkins testified that Mr. Holton confessed to

Birkins while they were incarcerated in the jail (T. 38). Mr.

Episcopo reviewed several documents regarding Birkins

including a handwritten Motion for Probation executed by

Birkins and filed in August, 1986 (Def. Ex. 6). In the motion

Birkins requested that the court impose a sentence of

44

probation and as one of the reasons for the sentence he told

the court that he would assist the Tampa Police Department as

an informant (Def. Ex. 6). Mr. Episcopo could not recall ever

seeing the handwritten motion (T. 39). Ms. Morgan

unequivocally testified that she never received this document

at the time of Mr. Holton’s trial (T. 312).

Mr. Episcopo also reviewed a rap sheet regarding Flemmie

Birkins generated by the Florida Department of Law Enforcement

(FDLE), on November 29, 1986, two days before Mr. Holton’s

capital trial began (Def. Ex. 7). Again, Mr. Episcopo did not

recall disclosing Birkins’ criminal history (T. 40), and Ms.

Morgan was certain that she did not receive this document,

despite her request (T. 312). Ms. Morgan testified that had

she had Birkins’ criminal history she could and would have

correctly computed his sentencing guidelines (T. 312).

Ms. Morgan also reviewed a sentencing guidelines

scoresheet prepared for Birkins (Def. Ex. 9). The document

reflected that Birkins sentencing guidelines required that he

serve a sentence between nine to twelve years for his pending

offenses. Ms. Morgan was never made aware that Birkins faced

more than three-and-a-half to four-and-a-half years in prison

(T. 311).

Approximately two weeks after Mr. Holton was convicted

45

and sentenced to death, but before his motion for new trial

was argued, Birkins was sentenced. Mr. Episcopo appeared at

Birkins’ sentencing hearing (Def. Ex. 10). At Birkins’

sentencing hearing the following exchange occurred:

MR. EPISCOPO: The first score sheet was

incorrectly computed by Mr. Byrd of our office at

three and a half to four and a half years and he

took a plea to three years. The true score sheet is

nine to twelve and I guess if you look at the prior

record and the PSI you would see it’s nine to

twelve.

Now here’s what happens: This summer we had a

horrible homicide occur on East Scott Street. On

burned out building and when the firemen entered the

building they found a seventeen year old female

naked, strangled to death with a bottle inserted in

her anus and set on fire. It was truly a horrible

homicide. We had a lot of debris in the house and

just outside a door where the body was found we

located a pack, empty pack of cigarettes, which had

the fingerprint of Rudolph Holton. That discovery

led to the development of Case No. 86-8931. An

indictment for first degree murder, arson and sexual

battery.

On about the fourth day that the defendant

Holton was confined in the Hillsborough County Jail

he told this defendant that he did it. That coupled

with the circumstantial evidence of the fingerprint

and some other witnesses who could put the defendant

near the scene resulted in that indictment.

* * *

I have to say that his testimony, which was the

first thing that we presented in the trial and then,

of course corroborated by the other evidence, led to

the conviction of the defendant. Actually the jury

was out less than four hours in a case that was very

circumstantial and then they recommended death and

he was sentenced to death, and I think that is

significant and his cooperation was significant and

46

the fact that he was never asking for anything

enabled us to present testimony that in itself is

very unusual and went to corroborate his testimony

along with the other evidence in the polygraph. I

think that has to be given some consideration in

this sentencing.

* * *

THE COURT: Mr. Episcopo, you have had a chance

to read the presentence investigation?

THE COURT: The presentence investigation says it

was an open plea. If I understand what you said

just now, Mr. Episcopo, he pled to two and half to

three and a half.

MR. EPISCOPO: Well, from the first time I met

him I asked him what did you plead to and he said

three years. That’s always been his understanding.

That was his testimony on the stand and, of course,

it was presented to the jury that was below the

guidelines. I suppose as some form of impeachment

so his understanding has always been three years.

That’s what is written on the original score sheet

that was prepared by Mr. Byrd. They have crossed

out three and a half to four and a half and have

written in three.

But he does score out clearly out to nine to

twelve and, of course, I would like him to be aware

of that fact there is no question about that.

* * *

THE COURT: Anything you want to say, Mr.

Birkins? I have read your letter.

THE DEFENDANT: I would just like to have a

chance.

THE COURT: Well, you have had many chances.

47

THE DEFENDANT: I realize that, sir.

THE COURT: You have committed some of the most

atrocious crimes. You have certainly committed some

of the most atrocious crimes and have admitted

committing some of the most atrocious crimes that a

person can be charged with, the sexual assaults,

attempted murders, armed robberies.

Anybody have anything further they would like to

say?

* * *

There is not an appropriate sentence that I can

impose in this case. The defendant’s background

totally justifies him being sentenced to life

without the right to parole. This Court and our

entire system of justice is based on fairness. The

fairness of the defendant was he understood he was

pleading to three years when he entered the plea and

I feel to some extent that my hands are tied in that

regard.

* * *

MR. EPISCOPO: Can I make a suggestion? What if

you were to –

THE COURT: I will place him on community control

and require three hundred sixty-four days specified

residency.

MR. EPISCOPO: I was thinking something more

along this line: We do have two counts. You can

sentence less than three years on Count I followed

by a long period of probation.

(Def. Ex. 10, p. 4-11)(emphasis added). Mr. Holton’s trial

attorney was never informed about what occurred at Birkins’

sentencing hearing or about the State’s "error" in computing

discovered (T. 204).

48

While Mr. Episcopo informed the court that he had

disclosed Birkins’ presentence investigation report to Mr.

Holton’s trial counsel, Ms. Morgan testified that had she did

not receive this document (T. 311). Had she been provided

with Birkins pre-sentence investigation she would have been

able to determine that Birkins faced a much lengthier sentence

than what the jury was told (See Def. Ex. 8). In fact,

Birkins did not receive a sentence of three years of

incarceration, rather he was released from jail approximately

one month after Rudolph Holton was convicted and sentenced to

death (Def. Ex. 11). Mr. Holton’s jury was unaware of the

benefit Birkins received: rather than be sentenced between

nine and twelve years, he served less than nine months in the

county jail and then served a term of probation, including one

year on community control (Def. Ex. 11).

At the evidentiary hearing, Mr. Episcopo attempted to

explain the circumstances surrounding his contact with

Birkins. He testified that despite Birkins conflicting trial

testimony about whether or not he had pled to three years or

pled "open", that the documents reflected that Birkins did in

49

fact plead "open" and did not have a specified deal (T. 60).

However, Mr. Episcopo stated that he was under the impression

at the time of Mr. Holton’s trial that Birkins pled to three

years (T. 61).

Mr. Episcopo denied that he explicitly promised Birkins

anything for his testimony at Mr. Holton’s trial; however, he

also explained:

Q: [By Mr. Chalu] Wouldn’t it sometimes be

standard operating procedure when dealing with a

cooperating witness who had charges of his own not

to make him a specific plea offer prior to his

cooperation?

A: Well, no, because you know his testimony

would be tainted and it wouldn’t be as valuable.

Q: Would it also not be wise to make such an

offer before you found out that in fact he was

willing and did testify truthfully?

A: Yeah, you also want to see what’s going to

come out.

(T. 62-3). Mr. Episcopo acknowledged that he in fact provided

consideration for Mr. Birkins at his sentencing hearing (T.

67).

Additionally, in regard to the impeachment of Birkins,

trial counsel testified that she was not told that Birkins was

a confidential informant for the Tampa Police Department (T.

316, see also Def. Ex. 35 & 36). Trial counsel believed that

it would have been beneficial to show that prior to Mr.

50

Holton’s trial, when Birkins was arrested or wanted out of

prison he offered to assist the Tampa Police Department or he

informed the police that he was a confidential informant (Def.

Exs. 35 & 36). In fact, following Mr. Holton’s trial, in

1987, after being arrested for sexual assault, Birkins

contacted Detective Noblitt for assistance (Def. Ex. 37).

At the 2001 evidentiary hearing, Flemmie Birkins

testified that he lied at Rudolph Holton’s capital trial:

Q: (By Ms. McDermott) Now were you aware of how

many years you were facing on the charges . . . what

kind of time were you facing?

A: Yes, ma’am.

Q: What was that?

A: It was like twelve, fifteen years.

Q: Okay. And when you saw Mr. Holton at the

jail did you see that as an opportunity to decrease

the amount of time you were looking at?

A: If you mean that did I see a chance to you

know explore or use him, yeah.

Q: Was this --

A: Not the first two days the third day.

Q: Because you knew him, you knew that here was

your chance to limit your time of the time you might

be looking at?

A: Right.

Q: On your own case. And at that time did you

51

want to get out of jail?

A: Yes.

(T. 122-3)(emphasis added). Birkins indicated that he had

also lied during his deposition and when he provided his

initial statement to the police (T. 147).

Birkins described the modus operandi of a jailhouse

snitch. He explained that he gathered information and details

about Mr. Holton’s case from the news and from guards (T.

123). After gathering information about Mr. Holton’s case he

contacted the State. Two detectives were sent to see him (T.

124). At that time he was shown pictures of the crime scene

and Ms. Graddy’s body (T. 124-5). The detectives made it

clear that Birkins would receive consideration on his charges

52

for assistance in Mr. Holton’s case (T. 125). Birkins

testified against Mr. Holton because he believed it meant he

could get out of jail (T. 127). Birkins was familiar with the

system because he had previously assisted the State (T. 126,

146-147, Def. Exs. 35 & 36).

In fact, a police report authored by Detective Durkin,

the lead detective in the case, reflects that Mr. Holton was

not in the jail at the time that he was allegedly confessing

to Birkins (Def. Ex. 34). Mr. Holton was providing a

statement to the detectives at the police station (Def. Ex.

34).

Similarly, Johnny Newsome also recanted his trial

testimony at the evidentiary hearing. Newsome testified that

he lied at Mr. Holton’s trial (T. 176-7). On the night of the

murder, Newsome did not see Mr. Holton at the vacant house (T.

173). Newsome testified that he never saw Mr. Holton and Ms.

Graddy together (T. 177). Newsome lied at Mr. Holton’s trial

because he was afraid of the police (T. 177, 193).

Indeed, in the months preceding Mr. Holton’s trial,

Newsome was arrested and charged with multiple crimes. In

July, 1986, he was charged with petit theft (Def. Ex. 38).

Newsome failed to appear at his court date and the court

issued a capias. On October 21, Newsome was charged with

53

disorderly intoxication and arrested. The next day, Newsome

was arrested on the outstanding capias for his petit theft

(Def. Ex. 38). As to the disorderly intoxication charge,

Newsome pled guilty and was sentenced to time served. After

being released and failing to appear on his petit theft

charge, again, another capias was issued for Newsome (Def. Ex.

38). In November, Newsome was charged with an aggravated

assault (T. 366-7), but he was not arrested on the outstanding

capias. In fact, the capias existed when Newsome testified at

his deposition and at trial, yet he was not taken into custody

(Def. Ex. 38). A few days after Mr. Holton’s trial, Newsome

was arrested and charged with criminal mischief and on the

existing capias (Def. Ex. 38). Newsome entered a nolo plea on

December 13, 1986, and was given time served (Def. Ex. 38).

Trial counsel was unaware of Newsome’s outstanding charge

and capias. During Newsome’s deposition, trial counsel

inquired:

Q: Do you have any kind of charges pending

against you?

A: Me?

Q: Yes?

A: No. Well, hold it. Wait a minute. Let me

see – no, ma’am. I got another murder case, I mean

I’m a witness to it, but that’s the charge.

Q: No. Not unless – things you have –

54

MR. EPISCOPO: She means charges against you.

Q: – been charged with, things that they’re

prosecuting you for?

A: No.

(Def. Ex. 39, p. 20-21). At trial, Newsome admitted that he

had an aggravated assault charge pending against him, but he

testified that it was the only charge he had against him (T.

367). The State did not correct Newsome’s false testimony

during his deposition or at trial.

Further, Elease Moore knew Johnny Newsome, aka Georgia

Boy, in 1986, and spent the night of June 22, 1986, with him

(T. 268). Ms. Moore and Newsome spent the night in a vacant

house on Estelle Street (T. 268). They met at approximately

9:00 p.m. and they were in the house at 11:00 p.m. (T. 268-9).

Ms. Moore and Newsome drank and had sex; Newsome also smoked

drugs (T. 269). They left the house the next morning and saw

the fire trucks on Scott Street (T. 269). In 1986, Ms. Moore

did not know that Newsome testified at Mr. Holton’s trial.

In regard to the only direct evidence linking Mr. Holton

to Katrina Graddy – the three hairs found on the victim’s

mouth, Mr. Holton presented evidence that mitochondrial DNA

testing conclusively proved that he was not the source of the

hairs (T. 29). The State had previously stipulated to Dr.

55

Terry Melton conducting the mt DNA testing in Mr. Holton’s

case and at the hearing, the State stipulated to Dr. Melton’s

qualifications as an expert (T. 8; see also Def. Ex. 1).

Dr. Melton explained that mt DNA testing had been

recently accepted by courts in the United States and that at

the time of the hearing only five labs conducted mt DNA

testing. (T. 11-2, 26). She also described the significance

of mt DNA testing:

. . . The part of the DNA I’m talking about is

mitochondria DNA. It’s actually found outside the

nucleus in the cytoplasm or the kind of fluid that

is around the nucleus . . .

Mitochondria are like little power houses of

energy for the cell. They involve every cellular

representation they use for energy for the cell and

it turns out they have their very own DNA molecules.

And in spite of the fact that there are only two

types of DNA in the cell the nucleus, in the

mitochondria . . . we have ten to a hundred copies

of mitochondrial DNA and the cell itself can have

hundreds to thousands of copies of mitochondrial DNA

. . .

* * *

It tends to be very useful in cases where

nuclear DNA isn’t available because there are only

two copies of nuclear DNA where a cell has a

thousand copies of mitochondrial DNA . . .

(T. 15-16). Dr. Melton testified that she conducted mt DNA

testing on the three hairs found on Katrina Graddy’s mouth (T.

28). Dr. Melton testified that Mr. Holton’s mt DNA type is

"exclusively different from the type obtained from the[]

hearing, the circuit court requested that further DNA testing

occur on the black bag and the contents of the bag (T. 385-6).

On May 3, 2001, the circuit court entered an order releasing

the black bag and it’s contents to Dr. Terry Melton for

additional DNA testing. (PC-R. 657-8).

56

hairs" (T. 29; Def. Ex. 3). She also concluded that all three

hairs were the same and matched each other (T. 31; Def. Ex.

3). When she compared them to the mt DNA profile of Ms.

Graddy she determined that the profiles were substantially

Dr. Edward Willey, a medical doctor who practices in the

area of pathology, also testified at the evidentiary hearing

about the marks that were on Mr. Holton’s chest when he was

arrested on June 23, 1986 (T. 103). Dr. Willey testified that

he reviewed the photos of Mr. Holton, like Dr. Lardizbal did

at the time of the trial, and he reviewed the transcripts from

the trial. Dr. Willey concluded that the marks on Mr.

Holton’s chest were "likely to be weeks, even months old" (T.

109). Dr. Willey based his opinion on the appearance of the

marks and the literature on how the appearance of wounds

change during the healing process (T. 109-110, see also Def.

Ex. 25). Dr. Willey testified that the medical examiner’s

opinion at trial, that the marks were only twenty-four to

on June 15, 1992 (Def. Ex. 27).

57

thirty-six hours old, was not supported by the photos which

illustrated that the healing process was quite advanced (T.

109-10). Dr. Willey identified scarring on the marks, which

he testified would not be present in a fresh wound. (T. 110).

Also, at issue during the evidentiary hearing was the

credibility of the testimony of Carrie Nelson, the neighbor

Nelson testified that Willie Dan Simmons was on the porch with

her the night of Ms. Graddy’s murder (Def. Ex. 23, p. 12-4).

Both the State and trial counsel were aware of Mr. Simmons (T.

46, 323, Def. Ex. 12). Trial counsel attempted to locate Mr.

Simmons, but was unable to do so (T. 95, 323). At the

evidentiary hearing, Mr. Holton’s postconviction investigator,

Deborah Williams testified that she located Mr. Simmons during

her investigation of Mr. Holton’s case (T. 204). Ms. Williams

located Mr. Simmons by asking people near the Central Park

Homes where she could find "Sissy Dan" (T. 206). Mr. Simmons

told Ms. Williams that on the night of the Graddy homicide,

"he was with Carrie Nelson . . . They saw Mr. Holton walking

along the street passed Carrie Nelson’s house and Mr. Simmons

1998, interviewed Mr. Simmons at his home and obtained a

statement similar to the statement Mr. Simmons provided Ms.

Williams (T. 222-3). Mr. Simmons also informed Mr. Jackson of

his failing health. When Mr. Jackson attempted to locate Mr.

Simmons a few months later, in order to arrange a time to take

his deposition, Mr. Simmons was deceased (T. 224, Def. Ex.

28).

58

said that [Mr. Holton] was headed towards the hole." (T. 207).

Mr. Holton passed by the house around 9:00 p.m. (T. 208). Mr.

Simmons also stated that he didn’t leave Nelson’s house until

indicated that on June 23, 1986, Nelson spoke to Mr. Simmons

and told him that she had finally found a way to stop Mr.

Holton from stealing from her (T. 209). She told the police

that she had seen Mr. Holton enter the abandoned house the

previous night (T. 209). Mr. Simmons argued with Nelson and

told the police at the scene that Nelson was lying about

seeing Mr. Holton enter the house (T. 208-9). Mr. Simmons

told Ms. Williams that he would have testified at Mr. Holton’s

Several months after Ms. Graddy’s murder, Nelson admitted

to Elease Moore that she had lied to the police about Mr.

Nelson told her that she wanted to get even with Mr. Holton

59

because she believed that he had stolen her groceries (T. 270-

1).

At the close of the evidence on April 20, 2001, the

circuit court indicated that it wanted the parties to conduct

additional DNA testing. After the additional testing was

concluded, closing arguments were scheduled for June 25, 2001.

On June 25, 2001, the State requested a brief

continuance, but the court admitted the results of the mt DNA

testing. The parties stipulated to Dr. Melton’s report rather

than introducing testimony (Supp. PC-R. 491-500). After

further mt DNA testing of hairs found in the black bag, Dr.

Terry Melton determined that the hairs found in the bag did

not match either Mr. Holton or Ms. Graddy’s mt DNA profiles;

Mr. Holton and Ms. Graddy were excluded from being the source

of the unknown hairs. (Def. Ex. 41). Thus, an unknown source

of those hairs exists.

On June 27, 2001, the State filed a motion for

continuance and a motion for the return of property in order

to conduct DNA testing. (Supp. PC-R. 133, 134, 135-6). The

next day, the State amended its motions. (Supp. PC-R. 138,

139-40). On June 29, 2001, the State argued the motion to

continue:

. . . we were able to locate David Pearson who

indicated to us that he would give a DNA sample and

60

so we took a saliva sample from him for the purposes

of analyzing his DNA and perhaps comparing it to any

items that was (sic) 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.

(T. 394). The State argued that they wanted to test Pearson’s

saliva sample and compare his DNA to the DNA profiles that had

been developed in the case but did not match Mr. Holton or Ms.

Graddy (T. 396). Additionally, the State requested that DNA

testing occur on other items of evidence, including the glass

bottle (T. 396).

Mr. Holton objected to any further continuance, arguing

that the State had rested at the April hearing (T. 396).

Counsel reminded the court:

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 a pandora’s box . . .

(T. 398). Counsel also stated, "[T]he fact that the 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." (T. 399). Finally, counsel explained

the circumstances about what occurred at the hearing scheduled

61

. . . [T]his 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

continuance here 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 that committee meeting. So

we agreed.

The next 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 continuance. What about the committee

meeting? She explained that 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.

(T. 400). The court denied the State’s motion for

continuance.

During the State’s closing argument, ASA Chalu requested

that he be allowed to introduce Pearson’s sworn statement into

the record "because it may be very relevant to th[e] Court’s

determination . . .". (T. 443). Over defense counsel’s

objection, the court granted the State’s motion (T. 444).

On July 2, 2001, Mr. Holton objected in writing to the

State’s request for further DNA testing and the procedures the

State sought to employ in obtaining the testing (PC-R. 662-

72). An amended objection was filed on July 17, 2001 (PC-R.

62

703-12). On August 30, 2001, Mr. Holton filed a motion

seeking the taped statement that Pearson provided to the

Office of the State Attorney in June (PC-R. 752-6). Mr.

Holton attached the Tampa Police Department report that

indicated that Pearson admitted that he was in fact the

individual who Ms. Graddy claimed raped her on June 13, 1986

(PC-R. 752-6). In his statement to the police, Pearson also

admitted that he provided drugs to Ms. Graddy and had anal sex

with her, though he maintained that it was consensual (PC-R.

758).

On September 17, 2001, Mr. Holton filed a supplemental

motion for disclosure of David Pearson’s taped statement (PCR.

759-763). Since the State vouched for Pearson’s

credibility at Mr. Holton’s evidentiary hearing, Mr. Holton

attached documents that indicated that after Pearson

‘cooperated’ with the Tampa Police Department he absconded

from his pending criminal charges and was a fugitive from

justice (PC-R. 763). Further, a few days later, Mr. Holton

filed the records regarding Pearson’s pending charges for

aggravated battery, wherein the weapon used was a glass bottle

and from the crimes involving dishonesty, relating to events

that occurred in October, 2000, less than a year before the

State vouched for Pearson’s credibility (PC-R. 764-95).

court admit and consider Pearson’s statement in ruling on Mr.

Holton’s Rule 3.850 claims, yet the statement was transcribed

63

In October, 2001, the State disclosed Pearson’s

statement, at which the State was represented during the

statement by ASA Shirley Williams, ASA Wayne Chalu, Detective

Sandy Noblitt, and State Attorney Investigator Beiniek (Supp.

PC-R. 161). Mr. Holton was not represented at Pearson’s

confirmed much of the substance of the police reports

regarding the events that transpired between he and Katrina

Graddy on June 13, 1986. However, Pearson denied killing Ms.

Graddy:

Q: The reason we came to talk to you is during

this motion hearing I pointed out to you that the

attorneys representing Mr. Holton have advised the

court that you confessed to killing Katrina Graddy

to a gentleman by the name of Donald Smith. Is that

what I told you?

A: Yes.

Q: And I ask (sic) you on your porch to look me

in the eye and asked you if you were responsible for

Katrina Graddy’s death; is that correct?

A: Yes.

Q: And what was your answer?

64

A: No.

* * *

Q: Okay. During our conversation I asked you

about an incident that Katrina reported where she

alleged that you forced sexual relations on her; is

that correct?

A: Yes.

Q: And you explained that to us.

A: Yes.

Q: And how that occurred and where that

occurred?

A: At the Hancock Motel on Florida Avenue.

Q: Did you get arrested for that that night.

A: No.

Q: Did she – tell us what she told the police

once you were talking to the police in regards to

you being arrested.

A: Yeah. She obviously had told them that I had

raped her.

Q: Okay.

* * *

Q: Did you – did you force sex on her?

A: No. No.

Q: We talked about this yesterday. Why did she

have sex with you?

A: It was for crack cocaine.

Q: Okay. And where was that sexual act

performed at?

65

A: At the Hancock Motel.

Q: In a motel room?

A: Yes.

Q: Was it vaginal? Oral?

A: It was in her butt.

Q: I’m sorry?

A: Up in her butt.

Q: So it’s anal sex?

A: Anal sex, yeah.

Q: Okay. And she did that consensually?

A: She did that with me.

Q: After you completed having sex with her

anally, what did she want from you?

A: Some crack.

Q: Did you have any?

A: Yes.

Q: Okay. Did you give it to her?

A: No, she stole it.

Q: Was there some kind of disagreement or

argument that at that time?

A: Yes.

Q: The next question is: Did she go to a phone

and call the police? Or how did it come about that

she notified a police officer?

A: No, actually the police was already at the

motel. I didn’t know it. She didn’t know it

(T. 404).

66

neither. After I slapped her and the crack fell out

of her mouth she said, "I’m going to call the cops

on you." I said, "Well, go ahead." So she went to

the door she said, "They’re out here." So I came to

look, right?

Q: Okay.

A: So she left storming out. So rat