TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

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.

INTRODUCTION

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 Wayne Chalu did not challenge Mr. Holton’s claim that Katrina "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: 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.

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?

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 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.

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 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). 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.

On June 29^th, ASA Chalu appeared and asked for another 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 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 18^th through the 20^th. 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 [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:

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 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.

STATEMENT OF THE CASE AND FACTS

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 the house the firefighters found Katrina Graddy’s body 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 it (R. 597). Nelson did not see Mr. Holton leave, but she 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 at trial that on June 22^nd, at 11:00 p.m., he saw Mr. Holton 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 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 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 house (R. 328). On the afternoon of June 22^nd, Schenck picked 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 black shaving bag." (R. 326). Schenck candidly testified 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 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 was Flemmie Birkins, a jailhouse snitch. Birkins testified that he was incarcerated with Mr. Holton on June 26, 1986. Birkins stated that on June 26^th, Mr. Holton and he spoke 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. 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 prior criminal history (R. 308). However, Birkins also 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 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 of the house (R. 375). On June 26^th, Det. Durkin returned to 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 Mr. Holton on the 26^th, Mr. Holton told Det. Durkin that he saw 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, 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 22^nd, Mr. Holton stayed at Mr. Clemmons’ house, like he had for 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 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 Katrina left her house between 10:00 and 10:30 p.m. on the 22^nd (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 testified that she worked from 10:00 p.m. on June 22^nd until 6:00 a.m. on June 23^rd (R. 479). When the police interviewed her they showed her a picture of Mr. Holton and Ms. Leonard told the police that "she was sure" Mr. Holton did not purchase gas from the station while she was at work on the 22^nd or 23^rd (R. 481). Ms. Leonard informed the police that only 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 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 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 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, 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 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 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 guilty as charged (R. 745, 885).

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 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 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 allow his former attorney to continue to represent him, pro bono, while holding CCC-MR responsible for the costs 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 pro bono counsel to the Capital Collateral Counsel for the 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.

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 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 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 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 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 himself as Donald Lamar Smith (T. 291). Ms. Morgan explained 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 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. 50). After reviewing the police report regarding the June 13^th 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, 1986, which contained information about Donald Lamar Smith and placed Mr. Smith at the crime scene on the morning of the 23^rd 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 released him from his deposition (T. 296, 300; Def. Ex. 22). 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 that an interview occurred or the substance of the interview.

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 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 order to purchase marijuana (T. 306).

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 hitchhiker did not have any teeth missing (T. 165). When 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).

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.

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 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).

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?

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 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 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 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 the morning of June 23^rd a fire was reported at a 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 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?

MR. EPISCOPO: Yes, I have. We have provided that to Ms. Morgan and it was available at the trial when he testified and that record was made known to the jury in [Holton’s] case.

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.

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 Birkins’ sentencing guidelines (T. 313).

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 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. 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 want to get out of jail?

A: Yes.

Q: When you testified against Rudolph Holton did you tell the truth?

(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 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 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 –

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. 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[] 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 similar and contained a unique trait (T. 33; Def. Ex. 3).

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 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 who lived behind the abandoned house. During her deposition, 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 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 4:30 a.m. on the 23^rd, and he did not see Mr. Holton in the area after 9:00 p.m. on the 22^nd (T. 208). Mr. Simmons also 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 trial if anyone asked (T. 209).

Several months after Ms. Graddy’s murder, Nelson admitted to Elease Moore that she had lied to the police about Mr. Holton entering the abandoned house on June 22^nd (T. 270). Nelson told her that she wanted to get even with Mr. Holton 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 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:

At a hearing on August 10^th 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 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 for June 25^th and why Mr. Holton agreed to a brief continuance:

. . . [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. 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 (PC-R. 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).

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 statement (Supp. PC-R. 161). In his sworn statement Pearson 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?

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?

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 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 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). However, Pearson denied that he ever told Mr. Smith that he killed Ms. Graddy (Supp. PC-R. 178).

Toward the end of the statement Pearson admitted that he had approached Donald Smith’s wife, Berndoris, since learning of her testimony at the evidentiary hearing (Supp. PC-R. 184). But, Pearson said that he spoke to Ms. Smith in order to "warn her that she can get in trouble for perjury" (Supp. PC-R. 184-5).

Indeed, Pearson’s statement contained inconsistencies with the version of events he provided to the officers who investigated the sexual battery charge on June 13, 1986. For example, Pearson denied being arrested, however, he was arrested on June 13, 1986, for the charge of obstruction by disguising identity (Def. Exs. 13 & 14). Mr. Holton’s attorneys were not present at Pearson’s statement and thus had no opportunity to confront him with the inconsistencies.

On November 2, 2001, the circuit court vacated Mr. Holton’s convictions and sentences and granted him a new trial (PC-R. 800-20; Supp. PC-R. 503). The court granted relief based on Mr. Holton’s Brady claim, newly discovered evidence claim, and under a cumulative error review (PC-R. 800-20).

The following week, the State filed a motion to release property so that the State could conduct DNA testing (PC-R. 829-30). The State also filed a Motion to Stay Proceedings and Extend Speedy Trial (PC-R. 824). The court held a hearing on November 13, 2001, after which the court granted the State’s motion to extend the speedy trial time and the State’s motion for further DNA testing (PC-R. 825, T. 472, 474).

The State filed a Notice of Appeal (PC-R. 833). This appeal follows.

SUMMARY OF ARGUMENT

Mr. Holton is an innocent man who has spent over sixteen years incarcerated on Florida’s death row for crimes he did not commit. Meanwhile, Appellant, with no shame, has embraced the individual who most certainly murdered, sexually battered and set on fire Katrina Graddy, David Lorenzo Pearson, in an effort to preserve an unconstitutional conviction.

Mr. Holton has proved that Appellant suppressed material, exculpatory evidence throughout Mr. Holton’s trial relating to almost every lay witness who testified against Mr. Holton. Additionally, the detectives who investigated Ms. Graddy’s homicide decided that they would not document any evidence that could be favorable for Mr. Holton, including the fact that he had an alibi for the night of the crime, information that undermined the State’s star witness and evidence that a witness who placed Mr. Holton at the scene of the crime lied to the police in order to retaliate against Mr. Holton.

While defense counsel was able to obtain some of the information that the police did not want her to uncover, much exculpatory evidence went undiscovered and was never heard by the jury that convicted and sentenced Mr. Holton to death. The jury that convicted Mr. Holton never knew that Ms. Graddy alleged that "Pine" anally raped her ten days before her murder. Ms. Graddy told the police, her friends, her stepfather, a man named Donald Smith and his girlfriend, Berndoris. "Pine" who we now know is David Pearson admits that Katrina Graddy accused him of anally raping her after a sex for drugs transaction went bad. Pearson was not arrested for the sexual battery because Ms. Graddy signed a waiver of prosecution, but he was arrested for attempting to disguise his identity when the police questioned him. Ms. Graddy was informed that she could reinstate the sexual battery charges at a later date, if she wished to do so.

The State suppressed evidence that would have led the defense to the true story about Ms. Graddy’s murder. The State also suppressed other evidence about witnesses and misrepresented evidence to the jury in order to bolster it’s weak, circumstantial case against Mr. Holton. Confidence is certainly undermined in the reliability of Mr. Holton’s convictions.

Additionally, newly discovered DNA evidence now proves that the jury was misled. Evidence that the State argued was connected to Mr. Holton was not connected to him. The new evidence in conjunction with the undisclosed evidence clearly establishes that Mr. Holton would have been acquitted at his trial had the jury known of this evidence.

Serious constitutional violations occurred at Mr. Holton’s capital trial. Accordingly, this Court must affirm the circuit court’s order vacating Mr. Holton’s convictions and granting him a new trial.

ARGUMENT

ISSUE I

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).

A. INTRODUCTION

In his motion to vacate, Mr. Holton alleged that either his trial counsel was ineffective in failing to discover or the State erroneous failed to disclose exculpatory evidence, and as a result, Mr. Holton was deprived an adequate adversarial testing. As collateral counsel explained in his closing argument in circuit court, "the basis of the motion is that constitutional error occurred depriving Mr. Holton of a fair and reliable result of that trial" (T. 416).

B. CIRCUIT COURT’S RULING

In vacating Mr. Holton’s conviction and granting a new trial, the circuit court determined that trial counsel was not ineffective in her efforts on behalf of Mr. Holton, but that the State failed to disclose the exculpatory evidence to trial counsel (PC-R. 808). Thereupon, the circuit court turned to Mr. Holton’s alternative claim that the State had erroneously failed to disclose the evidence:

Throughout this claim, Defendant claims the State violated Brady v. Maryland, 373 U.S. 83, 85 (1963) by failing to disclose facts. First, Defendant claims the State failed to disclose the following evidence:

1. A police report regarding a sexual assault of "Katrina Grant" who had the same address as the victim.

2. A police report regarding Donald Smith at the crime scene.

3. A police report regarding an interview with Donald Smith.

4. A PSI regarding Mr. Birkins’ criminal history.

5. A motion drafted by Mr. Birkins.

6. The transcript of Mr. Birkins’ sentencing hearing.

7. A FDLE report.

8. A letter from Mr. Birkins indicating he was a confidential informant.

(PC-R. 808-09).

After citing the controlling United States Supreme Court case law, the circuit court found:

The Court finds that the evidence would have been favorable for impeachment value and exculpatory evidence value. The Court finds that the evidence was inadvertently suppressed by the State and that the Defendant suffered prejudice from the suppression of the evidence. The Court specifically finds that the State did not act in bad faith and did not willfully suppress any evidence in this case. It was only through inadvertence or neglect that the evidence was suppressed. Consequently, the Court finds merit to the Defendant’s Brady claims. As such, the Defendant is entitled to relief with regard to this claim.

(PC-R. 809)(emphasis added).

C. STATE’S APPELLATE CHALLENGE

1. Standard of review

In its brief, the State incorrectly articulates the standard of review for a Brady claim (IB at 37). This Court has stated:

A trial court’s finding after evaluating conflicting evidence that Brady material had been disclosed is a factual finding. As a factual finding, the reviewing court should uphold the finding as long as it is supported by competent, substantial evidence in the record.

Way v. State, 760 So. 2d 903, 911 (Fla. 2000)(citations omitted). However, "the ultimate question of whether evidence was material resulting in a due process violation is a mixed question of law and fact subject to independent appellate review." Id. at 913; Cardona v. State, ___ So.2d ___ (Fla. July 11, 2002).

2. Favorable evidence was not disclosed

In its attack upon the circuit court’s order, the State overlooks Judge Perry’s decision to credit the testimony of trial counsel, Mina Morgan. Ms. Morgan testified that: 1) she was not provided the evidence and information at issue, and 2) such evidence and information would have been used had it been disclosed because it was favorable to Mr. Holton.

As to the police reports, dated June 13, 1986, trial counsel, Mina Morgan, and her investigator, Sonny Fernandez, categorically stated that they did not receive the reports (T. 289, 89). Even the trial prosecutor, Joe Episcopo, recognized that this reports were favorable to Mr. Holton when he testified that had he had any reports about the rape he would have disclosed them (T. 50).

Ms. Morgan explained that her motion to continue reflected the importance she attached to learning "Pine’s" true identity (T. 287). Ms. Morgan testified about her motion for continuance:

A: [Reading the motion for continuance]. . . A friend of the victim told the defense investigator that Pine raped the victim approximately one week before she was killed.

The rape was reported but the victim used a false name because there was a warrant out for her arrest according to her friend. The investigator ascertained, the investigator ascertained Pine’s true name through his criminal record and his photograph.

I didn’t think we ever did that. I didn’t recall ever having the right name for him.

Q: Maybe you received a false lead at that point in time. Do you recall ever being able to actually determine who Pine was?

A: I don’t think so. I know for awhile we thought he was, might have been Johnny Newsome but nobody would ever say that Johnny Newsome went by that name.

(T. 286-287)(emphasis added). Clearly, trial counsel and her investigator searched for "Pine" and as trial counsel explained at one time they believed that "Pine" was Johnny Newsome. Judge Perry credited Ms. Morgan’s testimony when he found that she had not rendered deficient performance, and he similarly did so when he determined that the State had failed to disclose the police reports that would have led Ms. Morgan to "Pine."

As to the "Donald Smith" two-page police report authored by Officer Lawless, Mr. Fernandez testified that he had never seen the report until shortly before the evidentiary hearing; he did not have the report at trial (T. 82). Ms. Morgan initially testified that she believed she had the report at the time of trial (T. 293). However, while upon the witness stand, she examined her file and concluded, "I didn’t have it" (T. 296). She found no file existed for Officer Lawless in her trial file. Ms. Morgan testified that it was her routine to depose any police officer who submitted a report (T. 296-9). She excused Officer Lawless from his deposition because he had signed a different six-page police report with Officer Southwick and therefore she believed it was necessary to depose only Officer Southwick (T.296-9).

To overcome Judge Perry’s factual finding premised upon the testimony of Ms. Morgan and her investigator, the State suggests in a footnote that defense counsel might have had the report because the State’s additional response to discovery, filed in October 1986, lists an "auxiliary report" (IB at 46, fn. 20). However, several police reports were executed on forms that were labeled "auxiliary reports" (See Def. Exs. 29 & 34). No further information is listed on the notice of discovery, therefore the assumption that the report may have been disclosed does not provide any credible evidence that trial counsel and her investigator were incorrect when they testified that they did not receive the report. Certainly, the State did not pursue this contention during the evidentiary hearing before Judge Perry.

The State also fails to acknowledge that, according to Officer Lawless’ undisclosed report, Detective Kevin Durkin, the lead detective in the investigation, interviewed Donald Smith, yet no report exists and/or no report has ever been disclosed to indicate that an interview occurred or the substance of that interview (See Def. Ex. 18). The circuit court accepted trial counsel’s testimony and made a finding of fact that the report was suppressed (PC-R. 808).

As to the numerous Flemmie Birkins documents, the State does not contest Judge Perry’s finding that these documents were favorable to Mr. Holton and inadvertently undisclosed by the State. Instead the State assumes non-disclosure and argues that Judge Perry’s prejudice finding was erroneous (IB at 49, 56, 58).

3. The mystery element – diligence

Curiously, the State cites the three prong test set forth by the United States Supreme Court in Strickler v. Greene, 527 U.S. 263 (1999), (IB at 37-8), yet argues to this Court that the circuit court’s order was in error because defense counsel could have discovered several of the suppressed documents with due diligence. The State asserts that under Brady, the Court in Strickler required due diligence by the defense:

The Strickler court further explained that the Brady element of "due diligence" was not reached, ‘because it [was] not raised in this case, the impact of a showing by the State that the defendant was aware of the existence of the documents in question and knew, or could reasonably discover, how to obtain them.’

(IB at 43)(citations omitted). However, the passage that the State refers to in the Strickler opinion clearly related to postconviction counsel’s attempt to show cause and prejudice as to why his Brady claim was not raised in his state habeas proceedings when the State argued he had procedurally defaulted his claim in federal habeas proceedings. As it relates to a procedural default, the United States Supreme Court did not reach the diligence of collateral counsel in Strickler, 527 U.S. at, 287-288. However, the Supreme Court made it very clear in Strickler that diligence was not and is not a factor to be considered under the proper Brady analysis. Id. at 280. The Court specifically delineated the "three components of a true Brady violation." They are: 1)"The evidence at issue must be favorable to the accused;" 2) "that evidence must have been suppressed by the State, either willfully or inadvertently;" and 3) "prejudice must have ensued."

In fact, Strickler, stands for the exact opposite of what the State has asserted. Trial counsel’s diligence is simply not an element of "a true Brady violation". The Court repeated in Strickler that "the duty to disclose [] evidence is applicable even though there has been no request by the accused, and [] the duty encompasses impeachment evidence as well as exculpatory evidence." Id. at 280. The Court made clear that the burden rests with prosecutors who have "a duty to learn of any favorable evidence known to the others acting on the government’s behalf . . . including the police. Id. at 281.

This Court has recognized that in light of Strickler the Brady analysis does not include a diligence prong. Occhicone v. State, 768 So. 2d 1037, 1042 (Fla. 2000)(noting that "‘due diligence’ requirement is absent from Supreme Court’s most recent formulation of the Brady test"). See Cardona v. State, ___ So.2d ___ (Fla. July 11, 2002); Rogers v. State, 782 So.2d 373 (Fla. 2001). The State’s argument that this Court apply a due diligence requirement to the Brady analysis was rejected by the United State Supreme Court in Strickler.

Moreover, even if trial counsel’s exercise of diligence was an element of a "true Brady claim," the absence of diligence would constitute deficient performance, as this Court explained in State v. Gunsby, 670 So.2d at 924 ("To the extent, however, that Gunsby’s counsel failed to discover this evidence, we find that his performance was deficient under the first prong of the test for ineffective assistance"). However, the circuit court found that Ms. Morgan’s performance was not deficient because the State "inadvertently suppressed" the exculpatory evidence. If the State were to convince this Court that there is no competent evidence supporting the circuit court’s determination, then this Court would have to reject the circuit court’s finding that counsel’s performance was not deficient.

For example, the State argues that trial counsel had "Pine’s" name and knew sufficient facts about the rape so she could "have easily obtained the police report with due diligence." (IB at 44-45). The circuit court’s factual determinations were contrary to the State’s contention. The State’s contention regarding diligence should be rejected.

4. Materiality

As to the finally component of "a true Brady violation," the State ignores the dictates of Kyles v. Whitley, 514 U.S. 419 (1995). Kyles teaches: "The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item. Id. at 436 (emphasis added). The State addresses each of the eight documents the circuit court refers to in it’s order separately and never considers the totally different picture that would have been presented to Mr. Holton’s jury had the evidence not been suppressed.

a. June 13^th reports

Even taking the suppressed items individually, the State misrepresents the relevance and significance of the documents. First, the State suggests that the June 13, 1986, police report which indicates a "Katrina Grant of 1035 Joed Court" complained that a man named David Pearson anally raped her at a motel in Tampa, was not material because: 1) Mr. Holton did not establish that Katrina Grant was in fact Katrina Graddy; 2) the complainant signed a waiver of prosecution; and 3) the report was inadmissible as reverse Williams rule evidence (IB at 39-40).

The State’s assertion that Mr. Holton failed to establish that the complainant on June 13, 1986, was not Katrina Graddy is either premised upon a failure to read the record or an offensive effort to obfuscate. Besides the obvious similarities between the June 13^th sexual battery report and Ms. Graddy’s death certificate; i.e., the same first name, similar last names, the same address, and similar birth dates, only off by one year, (Def. Exs. 13 & 22), David Pearson admitted that Katrina Graddy, the same Katrina Graddy who was the murdered on June 23, 1986, complained to the police that Pearson raped her at the Hancock Motel, in Tampa, on June 13, 1986 (Supp. PC-R. 164-8). And the State in its closing argument did not contest the issue.

At the time of Mr. Holton’s trial, the defense knew that Ms. Graddy told several family members and friends that a man named "Pine" raped her shortly before her murder (T. 85-6, 285, Def. Exs. 19, 20, 21, 31 & 32). The defense also knew that Ms. Graddy likely used a false name when she made her complaint. (Def. Ex. 20, p.6). Thus, not only did Pearson verify that Katrina Graddy was the complainant on June 13^th, the information trial counsel obtained is entirely consistent with the police report. Indeed, it was "established that the victim of the alleged assault, Katrina Grant, was in fact the murder victim, Katrina Graddy." (IB at 39).

The State next argued that, "the victim signed a waiver of prosecution. The victim was a known prostitute and David "Pine" Pearson told law enforcement officers that he had engaged in consensual sex with Katrina Grant." (IB at 40). This argument assumes that Ms. Graddy was not anally raped by Pearson on June 13, 1986, and if she was not raped then the report is not relevant. However, Ms. Graddy’s waiver of prosecution does not diminish the significance of the complaint. The waiver clearly indicates that the complainant can "request an arrest warrant at a later dater." (Def. Ex. 13). Katrina Graddy could have requested that Pearson be arrested on the day after the rape or the next day or on any other day, including the day she was murdered.

Additionally, unlike Appellant, trial counsel, Mr. Holton and his current postconviction counsel neither believe that a "known prostitute" cannot be raped nor believe that Pearson when faced with the possibility of replacing Mr. Holton on death row told the truth when he was questioned by the police. Whether Ms. Graddy was anally raped on June 13, 1986, or whether she lied to the police makes no difference in the Brady analysis. Ms. Graddy reported Pearson to the police for a serious, violent offense. Pearson admitted he supplied Ms. Graddy with crack and had sex with Ms. Graddy. Therefore, Ms. Graddy’s complaint caused Pearson to be a suspect in at least four different crimes – sexual battery, delivery of a controlled substance, possession of a controlled substance and solicitation. Pearson admitted in his sworn statement that he slapped Ms. Graddy, thus, even if he did not anally rape her, a violent argument occurred which could have subjected him to criminal prosecution. It further reflects on his emotional feelings regarding Katrina that he resorted to physical violence against her.

Significantly, after June 13^th, Ms. Graddy continued to discuss the rape with her family and friends. She was angry, and she went to see Donald Lamar Smith, who testified that Pearson and Ms. Graddy exchanged angry threats when they saw each other the day after the rape (T. 243). Berndoris Smith described how Ms. Graddy wanted to retaliate against Pearson – even asking Donald Smith to beat-up Pearson (T. 151-2).

The State ignores the fact that Pearson was arrested on June 13, 1986 (Def. Ex 14). The charge was obstruction by disguising identity (Def. Ex. 14). Pearson repeatedly lied to the police about his identity (Def. Ex. 14). The only reason Pearson was being interviewed by the police was because Ms. Graddy had complained about the sexual battery (Def. Ex. 13). This would demonstrate that Pearson was not too happy about the arrest and had things to hide.

At Mr. Holton’s trial, Ms. Morgan argued:

Mr. Episcopo told you in the beginning he could not show a motive, that motive was not a factor. Well, it is not a necessary element of any of these offenses but look at what was done to this girl and ask yourself: Is this the sort of thing that you would expect from someone who barely knows her?

(R. 702)(emphasis added). Certainly the information contained in the June 13^th police reports would have provided a compelling reason for the defense to argue that Pearson committed the murder. At trial, the State argued that Mr. Holton’s motive arose from a sex for drugs transaction had gone bad:

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). The State’s argument is remarkably more consistent with Pearson being the murderer, than Rudolph Holton, given the undisclosed evidence.

Further, the information about Pearson was also relevant and admissible as reflecting upon the adequacy of the police investigation. In Kyles v. Whitley, the United States Supreme Court recognized that evidence that impeached the police investigation could establish a Brady violation:

Damage to the prosecution’s case would not have been confined to evidence of the eyewitnesses, for Beanie’s various statements would have raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation, as well. . . . [the evidence’s] disclosure would have revealed a remarkably uncritical attitude on the part of the police.

* * *

Even if Kyles’s lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie’s statements and so have attacked the reliability of the investigation in failing even to consider Beanie’s possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted.

514 U.S. 419, 445-6. (citations omitted).

Here, the June 13, 1986, police reports presented valuable evidence to undermine the police investigation of Ms. Graddy’s murder. Even when the prosecution was aware that Ms. Graddy complained that she had been raped by "Pine" to her family and friends, (Def. Exs. 20 & 21), it appears the police did not consider that the alleged rape may be connected to the murder.

Ms. Morgan testified at the evidentiary hearing that had she known "Pine" was Pearson she would have researched his criminal history and obtained his photo (T. 306). At the evidentiary hearing, trial counsel testified that she could have linked Pearson to the black bag and to Schenck (T. 308). In fact, after reviewing Pearson’s photo, Schenck testified that Pearson more resembled the hitchhiker than did Mr. Holton (T. 163).

The June 13^th police reports also provided the name "Donald Lamar Smith". As Ms. Morgan testified, she would have spoken to Mr. Smith in order to obtain Pearson’s location (T. 291-2). This would have led counsel to discovering that according to Mr. Smith, Pearson had confessed the murder to him.

b. Donald Lamar Smith police reports

As to the "Donald Smith" police reports, the State argues without any factual basis at all that Donald Smith would not have testified at Mr. Holton’s trial because he was Pearson’s friend (IB at 47). However, Donald Smith testified that he would have testified truthfully to his knowledge of Pearson’s involvement in the Graddy homicide at Mr. Holton’s trial (T. 248). The circuit court accepted Donald Smith’s testimony as credible.

In arguing the circuit court’s finding is not supported by competent and substantial evidence, the State misrepresents Mr. Smith’s testimony. Mr. Smith testified that when he was interviewed by the police at the crime scene he did not reveal Pearson’s name because several people were standing around and he did not want to be a snitch (T. 245). However, he testified that had anyone interviewed him in private he would have revealed Pearson’s name as the individual who provided him with information about the crime (T. 245).

Prejudice was caused by the suppression of the two June 13^th reports and the Donald Smith report. This particularly true when these reports are considered cumulatively. Had the reports been disclosed, the jury would have seen Mr. Holton’s case in a whole new light. This is particularly so given the fact that the reports would have led to Donald Smith who would have testified that David Pearson confessed the murder to him.

c. The Flemmie Birkins documents

The State also disputes the circuit court’s findings in regard to the numerous documents impeaching Flemmie Birkins’ testimony. In its brief, the State argues that the jury heard that Birkins could be given a lengthy sentence and trial counsel effectively cross examined Birkins, so any prejudice to Mr. Holton was minimal (IB at 50 & 51).

However, Birkins had testified inconsistently; initially, he told the jury that he accepted a plea to three years and his sentencing guidelines called for a sentence of three-and-a-half to four-and-a-half years in prison (R. 308). Birkins also testified that he did not accept the plea and that he pled "open" to the charges because "he would not have pled to all that." (R. 293). Likewise, in his argument at Birkins’ sentencing hearing, ASA Episcopo made contradictory statements about whether Birkins accepted a plea to three years or not. (Def. Ex. 10, p. 4-11).

Throughout his closing argument the prosecutor told the jury that Birkins’ motivation in coming forward was not based on any benefit he was receiving for his testimony:

Maybe he could have come in and not been such a honest witness now, but he’s still telling the truth because, ladies and gentlemen, this is a horrible crime that even a fellow black inmate will not tolerate.

(R. 716). In reference to Birkins’ credibility, the prosecutor argued:

... 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. 707).

Birkins’ sentencing hearing, presentence investigation report and guidelines score sheet indicate that, in reality, Birkins was a "horrible criminal", who was facing nine to twelve years on a grand theft charge. ASA Episcopo conceded in 2001 that in reviewing Birkins’ record he saw the error in the calculation of Birkins’ sentencing guidelines:

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.

(Def. Ex. 10).

Like the prosecutor, trial counsel testified that had she received any document detailing Birkins’ criminal history she would have realized that he was facing a much lengthier prison sentence than she had been told (T. 312). The jury would have heard that Birkins’ was not coming forward because he felt a moral obligation to help the police, but rather that he was greatly reducing his potential sentence. Birkins’ was the State’s star witness. ASA Episcopo told Mr. Holton’s jury and Birkins’ sentencing judge that a conviction could not have been obtained without Birkins (R. 705-7; Def. Ex. 10). See McKinzy v. Wainwright, 719 F.2d 1525, 1528 (11^th Cir. 1982)(recognizing "a particular need for full cross-examination of the State’s star witness"). Birkins wanted to be released from prison. He fabricated a story about Mr. Holton confessing, expecting that he would benefit greatly, and he did. Rather than be sentenced between nine and twelve years, Mr. Holton’s prosecutor ensured that Birkins received a short period of incarceration at the jail (he was released in January, 1987, almost one month after Mr. Holton was sentenced to death), followed by a year of community control and probation. Yet, the jury did not know this. This must undermine confidence in the reliability of the jury’s assessment, particularly Mr. Birkins has now testified that he testimony was false; Mr. Holton never confessed to him.

d. Cumulative consideration

In reviewing the materiality of Mr. Holton’s claim, this Court must review the net effect of the suppressed evidence and determine "whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Maharaj v. State, 778 So. 2d 944, 953 (Fla. 2000). Furt