IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA,

Appellant,

v. Case No. SC01-2671

Lower Tribunal No. 86-8931

RUDOLPH HOLTON,

Appellee.

___________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE THIRTEENTH JUDICIAL CIRCUIT,

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

STEPHEN D. AKE

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 14087

Westwood Center

2002 North Lois Avenue, Suite 700

Tampa, Florida 33607

Telephone: (813) 801-0600

Facsimile: (813) 356-1292

2

COUNSEL FOR APPELLANT

i

TABLE OF CONTENTS

PAGE

NO.:

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 5

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 34

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 36

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . 36

THE TRIAL JUDGE ERRED IN FINDING THAT THE

STATE VIOLATED BRADY V. MARYLAND, 373 U.S.

83 (1963) BY FAILING TO DISCLOSE A NUMBER OF

ITEMS TO DEFENSE COUNSEL PRIOR TO APPELLEE’S

TRIAL.

ISSUE II . . . . . . . . . . . . . . . . . . . . . . 59

THE TRIAL JUDGE ERRED IN GRANTING APPELLEE

RELIEF ON HIS CLAIM OF NEWLY DISCOVERED

EVIDENCE.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . 67

THE TRIAL JUDGE ERRED IN CONCLUDING THAT THE

CUMULATIVE EFFECT OF THE ALLEGED ERRORS

DEPRIVED APPELLEE OF A FAIR TRIAL.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 73

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 74

CERTIFICATE OF FONT COMPLIANCE . . . . . . . . . . . . . . 74

ii

TABLE OF CITATIONS

PAGE

NO.:

Blanco v. State,

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . . . . . 62

Bolin v. State,

Case No. 95775,

793 So. 2d 894 (Fla. 2001) . . . . . . . . . . . . . . . . 63

Brady v. Maryland,

373 U.S. 83 (1963) . . 36-39, 43, 46, 47, 49, 52, 57, 58, 67

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . . . . 63

Demps v. State,

462 So. 2d 1074 (Fla. 1984) . . . . . . . . . . . . . . . . 62

Holton v. Florida,

500 U.S. 960 (1991) . . . . . . . . . . . . . . . . . . . . 3

Holton v. State,

573 So. 2d 284 (Fla. 1990) . . . . . . . . . . . . . . . . 2

Huff v. State,

622 So. 2d 982 (Fla. 1993) . . . . . . . . . . . . . . . . 3

Irvin v. State,

324 So. 2d 684 (Fla. 4th DCA),

cert. denied, 334 So. 2d 608 (Fla. 1976) . . . . . . . . . 56

Jennings v. State,

782 So. 2d 853 (Fla. 2001) . . . . . . . . . . . . . . . . 46

Johns v. Bowersox,

203 F.3d 538 (8th Cir.),

cert. denied, 121 S. Ct. 629 (2000) . . . . . . . . . . . . 43

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . 61-64

Jones v. State,

709 So. 2d 512 (Fla. 1998) . . . . . . . . . . . . . . 62, 71

iii

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . 42, 49, 50, 71

Lightbourne v. State,

742 So. 2d 238 (Fla. 1999) . . . . . . . . . . . . . . . . 67

Mann v. Moore,

794 So. 2d 595 (Fla. 2001) . . . . . . . . . . . . . . . . 72

Occhicone v. State,

768 So. 2d 1037 (Fla. 2000) . . . . . . . . . . . . . . . . 46

Peterson v. State,

645 So. 2d 10 (Fla. 4th DCA 1994) . . . . . . . . . . . . . 56

Rogers v. State,

782 So. 2d 373 (Fla. 2001) . . . . . . . . . . . . . . . . 38

Spencer v. State,

27 Fla. L. Weekly S323 (Fla. 2002) . . . . . . . . . . . . 72

State v. Savino,

567 So. 2d 892 (Fla. 1990) . . . . . . . . . . . . . . 40, 41

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) . . . . . . . . . . . . . . . . 37

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . 38, 43, 50

Traina v. State,

657 So. 2d 1227 (Fla. 4th DCA 1995) . . . . . . . . . . . . 42

United States v. Bagley,

473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . 50

United States v. Bailey,

123 F.3d 1381 (11th Cir. 1997) . . . . . . . . . . . . . . 43

United States v. Grintjes,

237 F.3d 876 (7th Cir. 2001) . . . . . . . . . . . . . . . 43

United States v. Jones,

160 F.3d 473 (8th Cir. 1998) . . . . . . . . . . . . . . . 43

iv

United States v. LeRoy,

687 F.2d 610 (2d Cir. 1982) . . . . . . . . . . . . . . . . 43

United States v. Rodriguez,

162 F.3d 135 (1st Cir. 1998) . . . . . . . . . . . . . . . 43

United States v. Stewart,

513 F.2d 957 (2d Cir. 1975) . . . . . . . . . . . . . . . . 43

Way v. State,

760 So. 2d 903 (Fla. 2000) . . . . . . . . . . . . . . . . 37

Young v. State,

739 So. 2d 553 (Fla. 1999) . . . . . . . . . . . . . . 38, 58

Zeigler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . . . . 63

OTHER AUTHORITIES

Fla. R. Crim. Pro. 3.851(b)(4) . . . . . . . . . . . . . . 63

§ 119.01(1), Fla. Stat. (1985) . . . . . . . . . . . . . . 53

§ 90.404(2)(a), Fla. Stat. (1985) . . . . . . . . . . . . . 40

1

PRELIMINARY STATEMENT

This is an appeal from the circuit court’s granting of

Appellee’s motion for postconviction relief. The following

abbreviations will be utilized to cite to the record in this

cause, with appropriate page number(s) following the

abbreviation.

"DAR:___." - record on direct appeal to this Court;

"PCR:___." - record on appeal from the postconviction

proceedings;

"PCT:___." - transcript of postconviction evidentiary

hearing;

"SPC:___." - supplemental volumes of postconviction

proceedings.

2

STATEMENT OF THE CASE

On July 9, 1986, the grand jury in and for Hillsborough

County returned an indictment charging Rudolph Holton with one

count of first degree premeditated murder, one count of sexual

battery, and one count of arson. (DAR:794-95). Holton

proceeded to jury trial on the charges on December 1-5, 1986.

Following deliberations, the jury returned verdicts finding

Holton guilty as charged on all counts. (DAR:862-63; 879).

After the penalty phase, the jury returned a recommendation for

death by a vote of 7-5. (DAR:864). The trial judge followed

the jury’s recommendation and sentenced Holton to death. The

court found four aggravating circumstances: (1) the defendant

has been previously convicted of a felony involving the use or

threat of violence; (2) the murder was committed while the

defendant was engaged in the commission of sexual battery; and

(3) the murder was especially wicked, evil, atrocious or cruel,

and (4) the murder was committed in a cold, calculated, and

premeditated manner without any pretense of moral or legal

justification. In mitigation, the court considered the age of

the defendant and the fact that he has two children and is a

drug addict. (DAR:976-78).

On direct appeal, this Court affirmed Holton’s convictions

and sentence of death, but remanded the case for resentencing on

3

the charges of arson and sexual battery. Holton v. State, 573

So. 2d 284 (Fla. 1990). The United States Supreme Court denied

certiorari on June 3, 1991. Holton v. Florida, 500 U.S. 960

(1991).

On July 21, 1992, Holton filed his initial motion for

postconviction relief and filed amended postconviction motions

on January 12, 1993, April 15, 1998, July 1, 1998, and January

8, 2001. (PCR:23-45; 46-91; 123-39; 140-266; 545-633). On

December 3, 1998, the trial court conducted a hearing pursuant

to Huff v. State, 622 So. 2d 982 (Fla. 1993) on Holton’s second

amended motion for postconviction relief. (SPC:287-341). The

court entered an order on January 29, 1999, granting an

evidentiary hearing on several issues, and denying relief on

numerous claims. (PCR:360-83).

On August 3, 2000, the State and Holton entered a Joint

Stipulation wherein the State conceded error regarding Claim X

of Holton’s second amended postconviction motion and stipulated

that Holton was entitled to a new penalty phase proceeding.

(SPC:121-22). Because of the joint stipulation, the parties

agreed that an evidentiary hearing was unnecessary as to the

remaining penalty phase claims.

On January 8, 2001, Holton filed his "third" amended

postconviction relief.

4

an order expanding the evidentiary hearing to include Appellee’s

Brady claim regarding witness Flemnie Birkins and set the

evidentiary hearing for April 18-20, 2001. (PCR:634-35). After

conducting the evidentiary hearing, the court entered an order

on November 2, 2001, denying in part, and granting in part,

Appellee’s motion to vacate his judgment and sentence. The

State timely filed its Notice of Appeal on November 13, 2001.

5

STATEMENT OF THE FACTS

Prior to Appellee’s December 1986 trial, his defense

attorney, Mina Morgan, filed a motion to incur additional costs

for her investigator. Among the many reasons detailed in the

motion, counsel indicated:

The defense investigator spent numerous hours trying

to determine the true name of "Pine." A friend of the

victim told the defense investigator that "Pine" had

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 "Pine’s" true name, secured his criminal

record, and his photograph.

(DAR:824-25). The court granted Appellee’s motion and allowed

the expenditure of $1,000 in investigative costs. (DAR:828).

At the outset of Appellee’s trial, defense counsel moved for

a one week continuance. (DAR:852-54). The court denied the

motion and the trial began on December 1, 1986.

The State presented testimony at trial that the victim was

found in a burning, vacant crack house in the early morning

hours of June 23, 1986. Firefighters responded to the house at

1236 E. Scott Street at 6:33 a.m. and determined that the fire

had been burning for about 3-4 hours. (DAR:204-21). Fire

investigator G.K. Brown testified that the incendiary fire was

in a circular pattern surrounding the victim’s body. She was

6

laying on the floor in a spread eagle position, with a cloth

tied around her throat and one of her wrists, and a bottle

inserted into her anus. (DAR:217-18). Photographs of the scene

depicted numerous cigarette packages in the room, including a

pack of Kool cigarettes containing Appellee’s fingerprints.

(DAR:396-407).

The medical examiner testified that the cloth ligature was

wrapped around the victim’s neck four times. (DAR:263-64).

Over eighty-five percent of her body was burned, but the medical

examiner determined that the victim was dead prior to the start

of the fire. (DAR:266-70). The medical examiner did not detect

the presence of any sperm in the victim’s vagina, anus, or

mouth. (DAR:271-72). The State also showed the medical

examiner pictures of Holton which, according to the medical

examiner, depicted scratch marks on Holton’s chest that were

consistent with having been made within 24-36 hours. The

photographs were taken on June 24, 1986 at approximately 3 p.m.,

and the murder occurred in the early morning hours of June 23,

1986. (DAR:376).

At the medical examiner’s office, three hairs were removed

from the victim’s mouth and sent to the FBI for analysis.

(DAR:311-12). FBI agent John Quill testified that the hair

fragments were of insufficient length for comparison purposes,

7

but he determined that the hairs exhibited Negroid

characteristics. (DAR:316-17). One of the three hairs were

characterized as a transitional body hair that originated from

one of three possible areas: from the area on the back of the

head to the nape of the neck; the area from the lower abdomen

into the pubic area; or from the lower pubic area to the anus.

(DAR:321-22). Agent Quill could not identify what body area the

other two hairs originated from because the fragments were too

small. (DAR:321-22). The agent testified that the three hairs

could belong to anyone with Negroid hair, including the victim.

(DAR:320).

When law enforcement officers responded to the scene of the

murder on the morning of June 23, 1986, they located a car

parked across the street with a person asleep in the car. Carl

Schenck testified that he picked up a black male hitchhiker in

St. Petersburg and drove him across the bridge into Tampa.

(DAR:324-29). Mr. Schenck described the hitchhiker as wearing

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

embroidered on it, dark blue pants, and he carried a black

shaving kit. (DAR:326). The black shaving kit was discovered

in Mr. Schenck’s car when law enforcement officers woke him up.

Mr. Schenck did not positively identify Appellee as the

hitchhiker, but picked his photograph out of a photopack and

8

testified at trial that Holton resembled the hitchhiker.

(DAR:328, 342-45). The State showed Mr. Schenck a t-shirt

seized from the boarding room that Appellee stayed in the night

of the murder and Mr. Schenck testified that it looked like the

shirt the hitchhiker was wearing. (DAR:326).

After picking up the hitchhiker, Mr. Schenck drove him to

the bridge going into Tampa and told him he could take him

across the bridge if he gave him $2 for gas. (DAR:329). The

hitchhiker did not have any money, but he told Mr. Schenck that

he knew where they could go to get high on marijuana. Mr.

Schenck took him to a place where the hitchhiker purchased $10

worth of marijuana. (DAR:330-31). After purchasing the

marijuana, the men went to a bar where they drank a couple of

beers. They left the bar to smoke the marijuana, then returned

to the bar and drank some more. (DAR:331). About ten or eleven

at night, Mr. Schenck managed to drive to Scott Street where the

hitchhiker exited the car and Schenck fell asleep in his car.

Mr. Schenck woke up the next morning to the sound of fire

engines responding to the scene and was immediately questioned

by law enforcement officers. (DAR:333). Officers discovered

the black shaving kit the hitchhiker had in the backseat of Mr.

Schenck’s car.

Johnny Lee Newsome testified that he saw Appellee and the

9

victim together at the Scott Street house on the night of the

murder. Mr. Newsome was cutting through a path near the house

when he saw Appellee and Katrina Grady talking at the side of

the house at about 11:00 p.m. (DAR:350-51). Mr. Newsome

testified that Appellee had a "little black purse" in his hands

that evening, and when shown the black shaving kit introduced

into evidence, the witness stated that was the item Appellee had

with him. Mr. Newsome also saw Mr. Schenck in his car parked

across the street. (DAR:352).

Tampa Police Department Detective Kevin Durkin testified

that he questioned Appellee on June 24, 1986 at around noon.

After reading Appellee his rights, the detective asked Appellee

if he had ever been inside the house at 1236 Scott Street.

(DAR:375). Appellee responded that he had not been inside the

house since about June 12th. Appellee claimed he entered

through the rear of the house and never entered the front room

at any time. (DAR:375). Appellee told the detective that on

the night of the murder he was wearing a blue t-shirt and black

shorts, but he threw them away. (DAR:376, 384). Detective

Durkin took photographs of Appellee and questioned him about

scratches on his knuckles. Appellee originally told the

detective that he cut his knuckles in a fight, but he

subsequently changed his story and told the detective he cut

10

them on a window. (DAR:377). At the conclusion of the

questioning, Appellee asked the detective to bring him a pack of

Kool cigarettes if they ever spoke again. (DAR:377).

The next day, June 25th, Detective Durkin returned to the

crime scene and located a hypodermic needle on the interior

windowsill in the front room near where the victim was located.

(DAR:378). The detective then went to a house on Charlotte

Street to interview Soldon "Red" Clemmons. Detective Durkin

seized a white t-shirt with the City of Clearwater emblem on it

from the room where Appellee stayed on the night of the murder.

(DAR:378-79; 930).

The following day, while at the crime scene, Detective

Durkin noticed a pack of Kool cigarettes on the floor inside the

room adjacent to where the victim’s body had been found.

(DAR:379-81). Later that day, Detective Durkin again questioned

Appellee. When asked if he had been near the house on the

night of the murder, Appellee responded that he "was nowhere

near the house." (DAR:381-82). When confronted with Johnny

Newsome’s statement that he had seen Appellee at the house,

Appellee changed his story and admitted that he had seen Johnny

Newsome at the house that day, but claimed it was approximately

2:00 or 3:00 in the afternoon. (DAR:382). When asked if he had

left anything inside the house, Appellee replied that he had not

testified that Birkins told them his motivation for telling the

authorities about Appellee’s confession was because he did not

think it was right for a seventeen-year-old to get murdered.

(DAR:456, 463). Birkins testified he told the officers it was

not right for anybody to kill a young girl. (DAR:297).

11

been inside the house that day. When shown photographs of the

pack of Kools found inside the house, Appellee changed his story

and told the detective that he had been inside the front room of

the house approximately one week before the interview which was

conducted on June 26, 1986. (DAR:383). He told the detective

that there was a heater can in the room, a pie plate, and a

blanket. Appellee left two hypodermic needles in the room, one

on a windowsill and one on the floor. (DAR:383).

Flemnie Birkins, an inmate trustee at the Hillsborough

County Jail, testified that he had two conversations with

Appellee on June 26, 1986 at the jail. Appellee told Birkins

that he had strangled a girl with his hands, went to the Star

Service Station on Nebraska Avenue and got a can gas, and

returned to the house and set it on fire. (DAR:289; 297).

Birkins testified on cross-examination that he did not know how

old the victim was when she was murdered, and Appellee did not

confession to an officer at the jail that evening. About five

days later, homicide detectives took Birkins’ statement.

12

(DAR:289-90). Birkins never told his defense attorney about his

conversations with law enforcement officers and he did not

request any favors from the State on his pending charges in

exchange for this information. (DAR:290-92).

On cross-examination, defense counsel established that

Birkins was awaiting sentencing on his pending burglary and

grand theft charges and would not be sentenced until about three

weeks after his testimony. (DAR:292-93). Birkins had eight

prior felony convictions at the time and could be subject to

sentencing as a habitual felony offender. (DAR:300-01).

Birkins sentencing scoresheet called for a sentence of 3½ to 5½

years in prison. (DAR:308-09).

Defense counsel also questioned Birkins about a pro se

motion he wrote to a judge wherein he requested that he be

released on his own recognizance because his mother was very ill

and he needed to take care of her and he also indicated that he

was a witness for the State against another inmate charged with

first degree murder. (DAR:302-06; 963-66). Birkins wrote in

his motion that he had several members of law enforcement that

would be willing to testify on his behalf. (DAR:304). Birkins

testified that the "members of law enforcement" were the ones he

worked for at the county jail. (DAR:304).

After the State rested its case-in-chief, defense counsel

immediate vicinity. (DAR:444).

Petersburg was found in the hitchhiker’s black shaving bag.

(DAR:972-73). Among the numerous other items found in the

shaving kit were an earring with a hair attached to it and a

wire ring with a hair attached to it. (DAR:448-51).

13

called Tampa Police Department Officer Salvatore Ruggiero who

testified that he responded to the crime scene in the early

morning hours and spoke with Carl Schenck. (DAR:418-19).

Officer Ruggiero testified that Mr. Schenck described the

hitchhiker as wearing a red t-shirt rather than a white t-shirt.

(DAR:420). The officer also stated that Mr. Schenck described

the hitchhiker as having a mustache. (DAR: 421).

The defense called Detective Aubrey Black who also testified

that Mr. Schenck described the hitchhiker as wearing a red tshirt.

(DAR:425). According to the detective, Mr. Schenck told

him the hitchhiker directed him to Scott Street so he could get

interviewed Appellee after he had been interviewed twice by

other detectives and Appellee told the detective that he went to

Black that he had been inside the Scott Street house on the

night preceding the murder and Appellee saw Johnny Newsome (aka

Georgia Boy) outside the house at that time. (DAR:431).

11:00 p.m. or midnight. (DAR:395).

14

Appellee stated that he had not been inside the house on Sunday

night/Monday morning, but had spent the night at Red’s boarding

house after doing some heroin and cocaine that evening.

(DAR:432). On the night of the murder, Appellee claimed he was

wearing a black t-shirt, blue short pants and white tennis

shoes. Appellee told the detective that he threw those clothes

away. (DAR:433).

Defense counsel called Paulette Leonard, an employee of the

Star Service Station on Nebraska Avenue. She testified that she

went to work at the station at 10:00 p.m. on the night of June

22nd, and was the only employee working until 6:00 a.m. on June

23rd. (DAR:479). During that time, Appellee did not purchase

any gas from her station. (DAR:479-83).

Soldon "Red" Clemmons testified that Appellee arrived at his

boarding house at approximately 9:00 or 10:00 p.m. on the night

Clemmons observed Appellee sleeping in his bed. (DAR:496,

515). According to Mr. Clemmons, his mean dog would have

"raised cane" had Appellee gotten up during the night and moved

around. (DAR:498). Because he lived next to a high-crime area

called "the hole," Mr. Clemmons nailed his windows shut and

15

locked his door at night. Appellee did not have a key to the

house. (DAR:499-500).

The victim’s mother, Eva Graddy Lee, testified that her

daughter left her house on the night of June 22nd at

approximately 10:00 - 10:30 p.m. (DAR:522-24). Bernard Black

lived with Eva Lee and was like a stepfather to Katrina Graddy.

(DAR:526). He testified that she left the house by herself

between 11:00 - 11:30 p.m. (DAR:527). The house where the

victim was found was only a couple of blocks away from her home.

(DAR:526). Soldon Clemmons’ boarding house was also only a

couple blocks away from the burned house. (DAR:529-30).

A defense witness did not show up for her trial testimony,

and after extensive discussion, the trial judge ruled that he

would read relevant portions of the witness’s deposition

testimony to the jury. (DAR:530-87). The following testimony

was presented to the jury by the trial court:

Ladies and gentlemen of the jury, Pamela Woods was

served as a witness to be here today by the defense

and has not responded to the witness subpoena.

Therefore, the rules provide that you may hear

relevant portions of a deposition taken of Pamela

Woods, said deposition being taken on October 22,

1986.

The witness, Pamela Woods, is a known prostitute.

A deposition is a pretrial statement taken under oath.

The defense attorney was present. The witness,

Pamela Woods, was present, the court reporter was

present, the prosecutor was present. The defendant

was not present.

16

You are to take the following statements that I am

to read to you from me and judge their credibility as

though the witness was here testifying.

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.

The witness, Pamela Woods, further testified at

her deposition that she, 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. The witness

further testified on her deposition that the alleged

victim, Katrina Ann Grady, was not wearing earrings on

the night of her disappearance.

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 other than the two occurrences just

mentioned 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

17

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.

(DAR:587-90). After the witness’s deposition testimony was

presented to the jury, the defense rested its case. (DAR:590).

In rebuttal, the State recalled Johnny Newsome who testified

that he saw Appellee and the victim at the house on Scott Street

on Sunday evening, but he denied ever telling the police that he

saw Appellee the following day. (DAR:591).

The State also called Carrie Nelson, a woman who lived

across the street from the scene of the murder. She testified

that she and two other people were sitting on her front porch on

Sunday night and saw Appellee go into the Scott Street house at

approximately 11:00 p.m. (DAR:593-96). Ms. Nelson went into

her house at about midnight and never saw Appellee exit the

house. (DAR:594). Ms. Nelson testified that Appellee was

wearing a white t-shirt with red lettering on it. (DAR:597).

On cross-examination, defense counsel elicited testimony

from Ms. Nelson that Appellee had burglarized her house on four

previous occasions. (DAR:594-95). In addition, Ms. Nelson

testified that she had a pending charge for aggravated assault

that carried a possible five year prison sentence. (DAR:595).

18

Ms. Nelson knew Katrina Graddy, but did not see her with

Appellee that evening. (DAR:597-98).

During the State’s rebuttal closing argument, the

prosecuting attorney eluded to Flemnie Birkins’ prior record and

indicated that his sentencing guidelines scoresheet indicated

that he scored to a possible sentence of 3½ to 4½ years.

(DAR:707). The prosecutor also argued that the hairs found in

the victim’s mouth could not be linked to the defendant.

However, the prosecutor asserted that the hairs were probably

not the victim’s because FBI agent Quill had testified that one

of the hairs came from either an area around her pubic area or

an area on the back of her neck. The prosecutor rhetorically

asked, "I would just defy anybody to tell me how those are her

hairs, how she got them." (DAR:708). After hearing the

arguments and the instructions on the law, the jury deliberated

and returned a verdict of guilt on all counts. (DAR:745).

At the penalty phase proceedings, the State relied on the

evidence presented during the guilt phase. Appellee called four

witnesses and testified on his own behalf. Bernard Black, the

victim’s stepfather, testified that he has known Appellee for

fifteen years and found him to be a thief and a drug user, but

he doubted that Appellee could have committed such a violent

crime against Katrina Graddy. (DAR:751-52). Appellee’s uncle,

19

Calvin Mack, testified that Appellee was a good worker.

According to Mr. Mack, Appellee’s father died when he was about

eleven or twelve years old. (DAR:755). Appellee’s sister,

Annie Bellenger, testified that their father died when she was

only three days old, and her mother died when she was twentyfive

years old. (DAR:757-58).

Appellee’s fifteen-year-old daughter, Sandravetta Holton,

testified that she also had a younger brother named Rudolph

Holton. (DAR:759-60). She spoke with her father about his drug

problem and he told her that he wanted to stop doing drugs and

make something out of himself. (DAR:760).

Appellee testified on his own behalf and acknowledged that

he has thirteen prior convictions. (DAR:762). Appellee denied

killing Katrina Graddy and claimed that he was at Red’s house.

Prior to arriving at Red’s, he was shooting cocaine. (DAR:763).

Appellee saw Flemnie Birkins at the jail, but denied telling him

anything about Katrina Graddy. (DAR:764). Appellee testified

that he did not know Katrina Graddy and had never seen her

before. (DAR:765).

After hearing argument from counsel and the instructions on

the law, the jury recommended by a vote of 7-5 that Appellee be

sentenced to death. (DAR:784). The trial judge followed the

jury’s recommendation and sentenced Appellee to death.

20

Postconviction Evidentiary Hearing

At the evidentiary hearing before the Honorable Daniel L.

Peery, Appellee called Dr. Terry Melton to testify about the

mitochondrial DNA (mtDNA) results from the three hairs found in

the victim’s mouth. (PCT:8-33). Dr. Melton concluded that the

three hairs found in the victim’s mouth did not belong to

Appellee, but originated from the victim or possibly a relative

of the victim. (PCT:29-33).

Appellee next called Joe Episcopo, an Assistant State

Attorney in 1986 who was responsible for prosecuting Appellee’s

capital murder trial. Collateral counsel showed the witness

some exhibits from Flemnie Birkins’ court file. Mr. Episcopo

did not recall ever seeing a handwritten request by Mr. Birkins

for probation, and could not recall whether that document had

been turned over to defense counsel Mina Morgan in discovery.

(PCT:39). Collateral counsel showed Mr. Episcopo an FDLE rap

sheet printed out on Flemnie Birkins days before Appellee’s

December 1, 1986 trial which was copied to the State Attorney’s

Office. (PCT:39). Mr. Episcopo did not recall having access to

the rap sheet because Mr. Birkins’ case was in another division

21

and he did not recall whether it was disclosed to Appellee’s

defense attorney, but he assumed it would have been disclosed.

(PCT:39-40).

Mr. Episcopo did not recall being present at Flemnie

Birkins’ sentencing proceeding on December 19, 1986, although

the transcript indicated that he was present. (PCT:40-41). At

Mr. Birkins’ sentencing hearing, it was determined that his

original scoresheet had been miscalculated and he actually faced

a range between 9 to 12 years. (PCT:41-43). Mr. Episcopo

indicated that he provided a copy of Mr. Birkins’ presentence

investigation report (PSI) to defense counsel prior to trial.

(PCT:43).

Mr. Episcopo was shown defense counsel Mina Morgan’s motions

wherein she indicated that she wanted a continuance because she

was investigating an alleged rape of the victim, Katrina Graddy,

by a man known as Pine. (PCT:47-53). Collateral counsel showed

Mr. Episcopo a police report filed by "Katrina Grant" ten days

before the murder alleging a sexual battery by a man named David

Pearson. David Pearson gave a false name at the time and also

was charged with obstruction by disguise or false identity.

(PCT:50-53). Mr. Episcopo was not aware of the two police

reports generated from these two incidents. (PCT:53).

On cross-examination, Mr. Episcopo testified that Flemnie

22

Birkins did not ask for any leniency on his pending charges in

exchange for his testimony. (PCT:60). Mr. Episcopo was not

responsible for prosecuting Mr. Birkins or for preparing the

scoresheet that indicated Birkins scored from 9 to 12 years in

prison. (PCT:59-60). Mr. Birkins pleaded open to the court on

August 11, 1986, approximately four months before Appellee’s

trial. Mr. Episcopo explained that an open plea "means you

either didn’t get or you rejected the state attorney’s offer and

you’re going to take your chances on a judge with an open plea."

(PCT:60). During Birkins’ open plea to the judge, it was

understood that he would be sentenced to 2½ to 3½ years,

although the statutory maximum sentence for his offenses was ten

years. (PCT:61-64). According to the judge in Mr. Birkins’

case, Birkins may have possibly faced life in prison if he was

sentenced as a habitual felony offender. (PCT:64).

During Appellee’s original trial, he was represented by Mina

Morgan. Mrs. Morgan utilized Sonny Fernandez as her

investigator for the case. (PCT:70). Mr. Fernandez testified

at the postconviction evidentiary hearing that during his

investigation, Red Clemmons told him that when the police were

searching Appellee’s room at the boarding house, a member of law

enforcement took a pack of cigarettes off the night stand next

to the bed. (PCT:73-74). Although the police interviewed Mr.

possible that he had seen the police report at the time of trial

and that it was also possible that Appellee’s attorney received

the report prior to trial. (PCT:96-97).

23

Clemmons, Sonny Fernandez was unaware of any police report

regarding the interview, but he was aware of a police report

indicating that a pack of cigarettes were taken from the crime

scene. (PCT:74-75).

Sonny Fernandez did not recall seeing a supplemental report

written by Officer Lawless detailing a conversation with David

84). The officer wrote that an individual named David Lamar

Smith approached him at the crime scene and asked him who got

choked. (PCT:84). The report listed David Smith’s date of

birth, Tampa Police Department number, and his address according

to the police department’s rotary file. (PCT:84). Mr.

Fernandez did not recall ever attempting to locate this person,

but he did recall attempting to find an individual named "Pine."

(PCT:84-85).

Mr. Fernandez testified that he never discovered Pine’s real

name. (PCT:85). When asked by collateral counsel if the name

David Pearson rang a bell, the investigator testified that he

believed he had something in his files about him but he was not

sure. (PCT:85). Mr. Fernandez obtained information that Pine

Smith" when officers investigated the crime. (PCT:92).

24

allegedly raped Katrina Graddy. (PCT:85-88). Collateral

counsel showed the investigator two police reports dated June

13, 1986 regarding the sexual battery and obstruction by

disguise or identity. The name of the suspect in these reports

(PCT:89). Mr. Fernandez testified that he did not have those

reports at the time of Appellee’s trial. (PCT:89). Collateral

counsel showed the witness that the address on the sexual

battery police report was 1035 Joy Court in Tampa and the

victim’s address on her death certificate was the same. Katrina

Graddy’s date of birth according to her death certificate was

March 29, 1969, and the complainant’s date of birth in the

police report was March 29, 1968. (PCT:90). Mr. Fernandez

testified that it would have been helpful to have those reports

at the time of trial because he would have discovered Pine’s

real name was David Pearson and he would have noted the details

of the alleged rape and the waiver of prosecution signed by the

victim. (PCT:91-93).

Dr. Edward Willey testified at the evidentiary hearing that

he examined the photographs taken of Appellee after his arrest

and concluded that the scratch marks on Appellee’s body were

25

weeks, or even months, old. (PCT:108-09). While acknowledging

the difficulty in estimating the age of wounds, the doctor based

his opinion on his interpretation of the photographs that the

white areas surrounding the scratches were scars. (PCT:109-13).

The doctor testified that the wounds could have been made by

fingernails or some other sharp object. (PCT:113).

Flemnie Birkins testified that he had grown up with Appellee

and known him his whole life. (PCT:119-20). In June, 1986,

Birkins was incarcerated in the Hillsborough County Jail when he

saw Appellee at the jail. Mr. Birkins was facing charges and

the possibility of being sentenced to 12 -15 years as a habitual

offender. (PCT:120-22). Birkins testified at the evidentiary

hearing that he lied when he testified at Appellee’s trial in

1986. Birkins claimed he never spoke with Appellee about the

crime and Appellee never confessed to him; Birkins was able to

get the details of the crime through the news and the jail

guards. (PCT:122-24). Mr. Birkins testified that he was under

the impression the state was going to assist him with his

pending charges based on his testimony against Appellee.

(PCT:125).

On cross-examination, Mr. Birkins admitted that he talked

to Appellee in the jail. (PCT:129). Birkins called detectives

out to the jail and told them that Appellee strangled the victim

polygraph so he could beat the test. (PCT:147). In rebuttal,

the State called Jack Mehl, an expert on polygraphs, to testify

that Birkins could not have taken any type of tranquilizer and

been able to give a valid test. (PCT:351-56). During the test,

Birkins showed reaction to the control questions which indicated

that he not under the influence of any medication. (PCT:356).

The test results indicated that Birkins showed no deception when

asked three relevant questions: did Appellee tell you he killed

a girl, did Appellee tell you he choked a girl while having sex,

and did Appellee tell you he set fire to a house with a girl in

it. (PCT:357).

26

and burned the house afterwards. (PCT:128-30). Birkins told

the detectives that Appellee and the victim were going to the

house on Scott Street for the purposes of exchanging drugs for

sex. (PCT:130-31). In his statement to detectives, Birkins

stated that Appellee told him he did not have any drugs to give

the girl on him and he strangled her with his hands while having

sex with her. (PCT:131-33). Mr. Birkins admitted that he took

and passed a polygraph test regarding his original statements to

oath to Appellee’s trial attorney, Mina Morgan, and testified

that Appellee confessed to the murder in jail and gave him

details about the murder. Birkins’ admitted that his statement

to detectives, his deposition testimony, and his trial testimony

were all consistent. (PCT:139).

According to Flemnie Birkins, when Detective Noblitt took

his statement, the detective promised him that he would do no

27

time. (PCT:137). Mr. Birkins admitted that he told Detective

Noblitt that he did not want anything in return for his

testimony. (PCT:138). Mr. Birkins also admitted that he was

originally offered a three year deal on his pending charges, but

he rejected the offer and pleaded open to the court. (PCT:138).

According to Mr. Birkins, he was contacted by a CCR

investigator three weeks before the evidentiary hearing.

(PCT:142). This was the one and only conversation Birkins ever

had with any members of CCR. (PCT:143). He testified that the

investigator found him on the street and asked him if he was

"ready to come tell the truth." (PCT:145). In the five to ten

minute conversation with the investigator, Mr. Birkins, for the

very first time in his life, confessed to committing perjury at

Mr. Holton’s murder trial. (PCT:145).

Bernoris Smith and Donald Lamar Smith both testified at the

evidentiary hearing. Bernoris Smith testified that her husband

was living with her in 1986. (PCT:149). In June, 1986, Katrina

Graddy came to her house and she overheard Katrina tell Donald

Smith that David "Pine" Pearson had raped her and when law

enforcement officers investigated the crime, David Pearson used

the name "Donald Smith." (PCT:150-52). Mrs. Smith knew that

her husband talked to the police about this incident. (PCT:155-

28

56).

Donald Smith, an incarcerated felon at the time of the

evidentiary hearing, reiterated his wife’s testimony regarding

Katrina Graddy’s visit to his house. (PCT:154, 259). Mr. Smith

noted that she had bruises on her neck and Katrina told him that

Pine had choked her. (PCT:238-41). Katrina told Mr. Smith that

Pine had given her rock cocaine, and when she would not have sex

with him, he raped her. (PCT:241-42). Katrina asked Mr. Smith

to go and beat up Pine for her. (PCT:242). Mr. Smith and

Katrina went looking for Pine and saw him on the street.

According to Mr. Smith, all the parties yelled at each other and

Pine told Katrina that he was going to kill her ass for calling

the cops on him. (PCT:243).

On the night of the murder, Mr. Smith testified that he went

over to the house on Scott Street when he saw smoke and he saw

Pine walking towards him. (PCT:244). Pine told him that

Katrina had been found inside the house strangled. (PCT:244).

Mr. Smith walked up to the house and asked police if they had

found Katrina in the house strangled. (PCT:244). When the

police asked him where he heard this, Mr. Smith told them some

guy told him; he did not want to reveal Pine’s name because

there were a lot of people there and he did not want to be a

snitch. (PCT:245).

to as a "confession" by Pine that he killed Katrina. (PCT:248).

about Pine’s statement. George Smith testified at the

evidentiary hearing that Donald Smith told him Pine had

confessed to killing Katrina Graddy. (PCT:196). When George

Smith approached Pine and asked him if he killed her, Pine just

walked away and did not say anything. (PCT:197).

Donald Smith. (PCT:219-22).

29

According to Mr. Smith, Pine came to his house a few weeks

after the murder for a haircut and they had a conversation

"about killing Katrina and he said bitch did smoke my shit and

enforcement or Appellee’s counsel about this "confession"

cross-examination, Mr. Smith testified that he did tell the

"police" about the confession. (PCT:251-52). Mr. Smith said a

man named Darryl came to see him in 1998 and showed him a badge

Mr. Smith that there was an innocent man in prison and they

needed his testimony to prove the man was innocent. (PCT:257).

Mr. Smith was partially drunk at the time he gave his statement.

(PCT:255-56).

Carl Schenck gave testimony similar to his testimony at

Appellee’s trial. He discussed picking out a photograph of

reason to lie. (PCT:191-92).

30

Appellee from a photopack, but as he did at the trial in 1986,

Mr. Schenck again reiterated that he picked the person the

hitchhiker most resembled, but he was not absolutely sure of the

identification. (PCT:160-61). Almost fifteen years after the

murder, an employee of CCR came to Mr. Schenck and showed him a

photograph of David Pearson. (PCT:169). Mr. Schenck testified

that David Pearson looked more like the hitchhiker than the

photograph of Appellee he picked out in 1986, but he could not

make a positive identification based solely on a photograph.

(PCT:161-69).

Johnny Newsome testified at Appellee’s trial in 1986 that

he saw Appellee and the victim outside the Scott Street house

on the night of the murder. At the postconviction evidentiary

hearing, Mr. Newsome initially testified that he saw Appellee at

the house on the night of the murder, but immediately changed

his testimony and claimed that he saw Appellee at the house

about three days before the murder. (PCT:173). Mr. Newsome

testified that he lied at Appellee’s trial because he was

On cross-examination, Mr. Newsome admitted that the police

did not threaten him and promise him anything for his testimony.

Clearwater" circular emblem on it from Appellee’s room the day

after the murder. (DAR:378-79; 930).

31

(PCT:181). Mr. Newsome denied telling the police that he had

seen Appellee and the victim at the house on the night of the

murder and denied telling the police that he said "hello" to

Appellee that evening. (PCT:182-82). Mr. Newsome admitted that

he told the police Appellee had a black shaving kit with him

when he saw him at the house. (PCT:182-83). Mr. Newsome

"couldn’t be too sure about the day" he saw Appellee at the

house, but testified that it was three days before the murder.

(PCT:183). Mr. Newsome admitted that he also lied under oath at

his deposition when he testified that he saw Appellee and the

victim at the house and Appellee was wearing a t-shirt with a

Elasise Moore, a next door neighbor of the victim, testified

that she was with Johnny Newsome in a vacant house on the night

of the murder from 9:00 p.m. until the following morning. Ms.

Moore testified that they were drinking, smoking, and having sex

all night. (PCT:268-69). Ms. Moore also testified that Carrie

Nelson told her she lied to the police about Appellee entering

the house because Appellee had stolen from her and she wanted to

get even with him. (PCT:270-71).

Debra Williams, an investigator for the Office of Capital

32

Collateral Counsel, testified that she attempted to locate an

individual named Willie Dan Simmons who had been on the front

porch of Carrie Nelson’s house on the night of the murder. Ms.

Nelson testified at Appellee’s trial that she saw Appellee go

into the Scott Street house at about 11:00 p.m. on the night of

the murder. When investigator Williams finally located Dan

Simmons, he told her they saw Appellee pass the Scott Street

house at about 9:00 p.m. while Appellee was heading to "the

hole." (PCT:207). Mr. Simmons told the investigator he was at

Carrie Nelson’s house until 4:30 in the morning. (PCT:208).

According to the investigator, Dan Simmons told her he saw

Carrie Nelson the next morning at the scene of the fire and

Carrie Nelson told him she had finally found a way to keep

Appellee from breaking into her home; she told police Appellee

had gone inside the house the night before. (PCT:208). Mr.

Simmons allegedly went to the police at the scene and informed

them that Carrie Nelson was lying. (PCT:208). Ms. Williams

never located a police report detailing statements made by Dan

Simmons. (PCT:211). At the time of the evidentiary hearing,

both Dan Simmons and Carrie Nelson were deceased. (PCT:212).

Appellee’s trial counsel, Mina Morgan, testified that she

was very busy with another trial prior to Appellee’s trial and

moved for a continuance. (PCT:279-83). In the motion for

involving David Pearson that referenced his possession of a

black or brown leather pouch. (PCT:307-08). Ms. Morgan

believed this was significant based on the black shaving kit

found in Mr. Schenck’s car. (PCT:308).

33

continuance, counsel indicated that she had information

indicating that Pine may have been involved in the murder.

(PCT:283-85). Counsel acknowledged that she indicated in a

motion that she had obtained Pine’s real name and criminal

record, but she testified at the evidentiary hearing that she

was not sure that was an accurate statement. (PCT:286-87).

Collateral counsel showed Mina Morgan the two police reports

regarding David Lorenzo Pearson’s alleged rape of Katrina Grant

and his charge of obstruction by disguise or identity. Ms.

Morgan indicated that she did not have those police reports at

the time of Appellee’s trial. (PCT:289). She testified the

police reports would have been beneficial because she could have

determined Pine’s real name and she would have known that he was

friends with Donald Smith. Furthermore, she believed the fact

that Pine allegedly anally raped the victim was relevant given

the fact that the victim was found with a bottle inserted into

Collateral counsel questioned Ms. Morgan regarding exhibit

18, a police report authored by T.A. Lawless regarding

statements made at the crime scene by Donald Smith. (PCT:292).

34

Ms. Morgan indicated that she was given this report prior to

trial because she had a copy in her files. (PCT:292-93).

However, on subsequent questioning, she indicated that she did

not have the report. (PCT:294-300). She testified that the

report would have allowed her to locate Donald Smith. (PCT:300-

01).

When questioned about Flemnie Birkins, Ms. Morgan testified

that she never saw his presentence investigation report (PSI).

(PCT:311). She thought he scored between 3½ to 4½ years, but

had she seen his PSI, she thought she would be able to determine

that he actually faced a greater sentence. (PCT:311-12). Ms.

Morgan testified that she did not have a copy of Mr. Birkins’

handwritten motion for probation at the time of trial, and she

did not believe she had a copy of his FDLE rap sheet, or a copy

of a letter he wrote indicating that he worked for the Tampa

Police Department as a confidential informant and helped "cut

down the crime rate." (PCT:312, 316-17). Ms. Morgan did not

have a copy of Birkins’s sentencing hearing which took place

after Appellee’s trial on December 19, 1986. (PCT:312-13). On

cross-examination, Ms. Morgan indicated that she was aware that

Birkins qualified as a habitual felony offender and she recalled

that point was a major focus of her cross-examination of Birkins

at Appellee’s trial. (PCT:336-37). She also acknowledged that

from Appellee’s room. (PCT:74, 320). Defense counsel Morgan

testified that she did not try and sell the theory that police

planted evidence. (PCT:321-22). Obviously, such a theory would

have proved unsuccessful given the fact that photographs of the

cigarette pack were taken immediately at the crime scene prior

to detectives going to Red Clemmons’ house. Furthermore, as

Mina Morgan testified, the cigarette pack was not that damaging

given Appellee’s confession to being inside the house doing

drugs. (PCT:322).

35

Birkins pleaded open to the court and had rejected a plea deal

of three years. (PCT:335-36).

In rebuttal, the State called Detective Sandy Noblitt who

testified that he recovered a pack of Kool cigarettes from the

Scott Street house with Appellee’s fingerprints. (PCT:361-65).

Detective Noblitt noted that Appellee initially told him he did

not know the victim and that he had never been inside the front

room of the house. (PCT:362-63). Detectives Noblitt and Durkin

investigated Appellee’s alibi that he was at Red’s boarding

house by interviewing Red Clemmons. Mr. Clemmons told them that

he rented a room to Appellee that night and "he didn’t know

anything beyond when [Appellee] went to bed that night."

(PCT:366). The detectives seized a City of Clearwater t-shirt

(PCT:366-67, 376-77).

In addressing the issue of how a bystander at the crime

scene may have known the victim was strangled, Detective Noblitt

36

explained the crime scene and the likelihood that bystanders

overheard the firemen talking to law enforcement officers after

extinguishing the fire. (PCT:367-68). Detective Noblitt also

testified that he was surprised that Flemnie Birkins was helping

out because he had tried to stay away from the police in the

past. (PCT:372).

37

SUMMARY OF ARGUMENT

The trial judge erred in granting Appellee relief on his

Brady claim. The trial judge determined that the State

inadvertently suppressed eight items that would have been

favorable to Appellee for impeachment or exculpatory value. The

court made a generic statement that Appellee suffered prejudice

as a result of the alleged suppression of these items. The

State submits that a number of these items were not suppressed

by the State. Furthermore, some of the items would not have

provided impeachment or exculpatory value to Appellee. Most

importantly, however, the trial judge erred in finding that

Appellee suffered prejudice as a result of the alleged

suppression of these items.

The trial judge also erred in finding that Appellee was

entitled to relief based on his claim of newly discovered

evidence. Appellee introduced evidence from a mtDNA forensic

expert that the three hairs found in the victim’s mouth were not

Appellee’s hair and were most likely the victim’s hair. In

ruling that Appellee was entitled to relief on this issue, the

trial judge concluded that the underlying testimony at

Appellee’s trial was "incorrect." The court also noted that the

argument made by counsel during Appellee’s trial is now

unsupported. The court’s factual findings are clearly erroneous

38

and not supported by the record. The evidence at Appellee’s

trial was that the hairs were of Negroid origin. The expert at

trial could not determine where the hairs originated from, but

he testified that they could have come from Appellee, the

victim, or any other person with Negroid hair. There is nothing

"incorrect" about his testimony. Subsequent mtDNA evidence has

established that the hairs were not Appellee’s hair, but this

was argued to the jury below by defense counsel. Certainly,

this newly discovered evidence is not of such a nature that it

would probably produce an acquittal on retrial.

Finally, when viewing the two alleged errors cumulatively,

the trial judge ruled that he could not determine that the

errors were harmless. Accordingly, the trial judge granted

Appellee relief and ordered a new trial. The State submits that

the court erred in concluding that the Brady claim and the newly

discovered evidence claim, when viewed collectively, required

reversal of Appellee’s conviction. The majority of the

information Appellee would have obtained from the Brady items

and the newly discovered evidence was presented in some form by

defense counsel in an attempt to establish Appellee’s defense.

The jury rejected the arguments at that time and there is no

"reasonable probability" of a different result based on

Appellee’s Brady claim, nor is the mtDNA results evidence of

39

such a nature that it would probably produce an acquittal on

retrial. Accordingly, this Court should reverse the trial

court’s order granting Appellee relief on his postconviction

claims.

40

ARGUMENT

ISSUE I

THE TRIAL JUDGE ERRED IN FINDING THAT THE

STATE VIOLATED BRADY V. MARYLAND, 373 U.S.

83 (1963) BY FAILING TO DISCLOSE A NUMBER OF

ITEMS TO DEFENSE COUNSEL PRIOR TO APPELLEE’S

TRIAL.

After conducting the evidentiary hearing, the trial court

issued an order denying, in part, and granting in part,

Appellee’s motion to vacate judgment and sentence. The court

granted Appellee relief based on three claims: (1) a Brady

claim, (2) a newly discovered evidence claim, and (3) a

cumulative error claim. (PCR:800-20). Each of the court’s

findings will be addressed separately; and as will be seen, the

facts of this case do not compel a new trial under the

application of any relevant legal principles.

During the postconviction proceedings, Appellee asserted

that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by

failing 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.

41

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.

In granting relief on this claim, the trial court found that

this evidence would have been favorable for impeachment value

and exculpatory value. The court stated:

The Court finds that the evidence was inadvertently

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.

(PCR:809) (emphasis added).

The standard of review in determining whether the trial

court erred in determining that the State failed to disclose

Brady material is a factual finding that should be upheld as

long as it is supported by competent, substantial evidence. Way

v. State, 760 So. 2d 903, 911 (Fla. 2000); Stephens v. State,

748 So. 2d 1028 (Fla. 1999). In this case, competent,

substantial evidence does not support the trial court’s

determination. The trial court’s ruling lacks support in

42

submits that this Court must reverse the trial court’s ruling

and find that the State did not violate Brady by failing to

disclose the evidence.

The United States Supreme Court has stated that there are

three components of a Brady violation: (1) The evidence at issue

must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; (2) that evidence must

have been suppressed by the State, either willfully or

inadvertently; and (3) prejudice must have ensued. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). Where evidence has been

withheld, the ultimate test under Brady becomes whether the

disclosed information is of such a nature and weight that

"confidence in the outcome of the trial is undermined to the

extent that there is a reasonable probability that had the

information been disclosed to the defendant, the result of the

proceeding would have been different." Young v. State, 739 So.

2d 553, 559 (Fla. 1999). The question of whether a reasonable

probability exists that the disclosure of the suppressed

evidence would have changed the outcome of the trial is a mixed

question of law and fact. Rogers v. State, 782 So. 2d 373, 377

(Fla. 2001). "The standard requires an independent review of

the legal question of prejudice while giving deference to the

defense counsel acknowledged that she had obtained Pine’s real

name, his criminal record, and his photograph. (DAR:824-25).

At the evidentiary hearing, defense counsel indicated that she

43

trial court’s factual finding and ensures the uniform

application of law." Id.

The trial judge concluded that the police report filed by

"Katrina Grant" regarding a sexual assault committed by David

Pearson was inadvertently suppressed by the State and Appellee

suffered prejudice from the alleged suppression. Contrary to

the trial court’s conclusion, the police report was not

suppressed by the State, nor did Appellee suffer any prejudice.

The State first questions the trial court’s finding that the

police report regarding the alleged rape of "Katrina Grant" was

Brady material. In order to constitute Brady material, the

evidence must be favorable to the accused because it is either

exculpatory or because it has impeachment value. Clearly, the

police report did not impeach any person’s testimony at trial.

The only remaining question is whether the report filed by

"Katrina Grant" was exculpatory to Appellee. Although Appellee

will obviously assert that this report would have allowed

was not sure whether they actually ever obtained Pine’s true

name. (PCT:286-87).

44

trial that Pine was responsible for the murder, it does not

necessarily follow that the evidence was exculpatory to

Appellee’s murder charge.

There are a number of problems with automatically concluding

that the police report of the alleged sexual assault was

exculpatory. First, it has never been established that the

victim of the alleged assault, Katrina Grant, was in fact the

murder victim, Katrina Graddy. Although Katrina Grant used the

victim’s address in the police report, the name and date of

birth are both different from Katrina Grant. Second, 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.

The State submits that even if Appellee could establish that

Katrina Grant was actually Katrina Graddy, the evidence of the

prior sexual assault would not have been admissible. There were

very few similarities between the reported sexual assault of

Katrina Grant and the murder of Katrina Graddy; certainly not

enough similarity to be admissible as reverse Williams rule

evidence. The only way the evidence of the prior sexual assault

45

could be material to Appellee’s trial is if he was allowed to

argue that David Pearson committed the murder, as reverse

Williams rule evidence.

At the time of Appellee’s trial, Florida Statutes, section

90.404 provided:

Similar fact evidence of other crimes, wrongs, or acts

is admissible when relevant to prove a material fact

in issue, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

§ 90.404(2)(a), Fla. Stat. (1985) (emphasis added).

This Court addressed the proper standard regarding the

admissibility of reverse Williams rule evidence in State v.

Savino, 567 So. 2d 892 (Fla. 1990). In Savino, the defendant

was charged with the first degree murder of his stepson by blunt

trauma to the stomach. Id. at 894. In his defense, Savino

sought to introduce evidence that his wife, the boy’s natural

mother, allegedly killed her one-month-old daughter with a blunt

instrument seven years previously. Id. The trial judge refused

to allow him to introduce this evidence. In upholding the

court’s discretionary ruling, this Court stated:

The test for admissibility of similar-fact evidence is

relevancy. Williams v. State, 110 So. 2d 654 (Fla.),

cert. denied, 361 U.S. 847, 80 S. Ct. 102, 4 L. Ed. 2d

86 (1959). When the purported relevancy of past

crimes is to identify the perpetrator of the crime

46

being tried, we have required a close similarity of

facts, a unique or "fingerprint" type of information,

for the evidence to be relevant. Drake v. State, 400

So. 2d 1217 (Fla. 1981); State v. Maisto, 427 So. 2d

1120 (Fla. 3d DCA 1983); Sias v. State, 416 So. 2d

1213 (Fla. 3d DCA), review denied, 424 So. 2d 763

(Fla. 1982). If a defendant's purpose is to shift

suspicion from himself to another person, evidence of

past criminal conduct of that other person should be

of such nature that it would be admissible if that

person were on trial for the present offense.

Evidence of bad character or propensity to commit a

crime by another would not be admitted; such evidence

should benefit a criminal defendant no more than it

should benefit the state. Relevance and weighing the

probative value of the evidence against the possible

prejudicial effect are the determinative factors

governing the admissibility of similar-fact evidence

of other crimes when offered by the state. These same

factors should apply when the defendant offers such

evidence.

Id. The Savino court found that the trial court did not abuse

its discretion in finding that the wife's alleged abuse of a

one-month-old child, in a different state, in a different

marriage, and in a different manner was not sufficiently similar

to be admissible in Savino's trial.

Likewise, in the instant case, assuming Appellee could

establish that Katrina Graddy was the actual complainant of the

sexual assault, there is not the type of "fingerprint"

similarity required to be admissible as reverse Williams rule

evidence. See also Traina v. State, 657 So. 2d 1227 (Fla. 4th

DCA 1995) (stating that evidence of past crime must meet

"fingerprint type" of similarity test to be admissible as

47

reverse Williams rule evidence). The murder in this case was

done by strangulation with a cloth ligature. Admittedly, the

victim was found nude with a bottle inserted in her rectum, but

there was no evidence of any type of forced sexual intercourse

before her murder. There were no trauma injuries to her mouth,

vagina, or anus, and no semen was found. (DAR:270-72).

Additionally, the victim was set on fire after she was murdered.

This is in stark contrast to the alleged sexual assault by David

Pearson described in the police report. In that case, the

victim reported that she was anally raped, but the perpetrator

claimed it was consensual sex and the victim signed a waiver of

prosecution. This incident, some ten days before Katrina

Graddy’s murder, does not meet the "fingerprint" type of

similarity required to be admissible reverse Williams rule

evidence.

In addition to not being exculpatory or admissible, the

trial court also erred in concluding that the report was

"suppressed" by the State. In Kyles v. Whitley, 514 U.S. 419,

437 (1995), the Supreme Court stated that the duty to disclose

favorable evidence encompasses evidence known to the prosecutor

and those acting on behalf of the government, including the

police. More recently, in Strickler v. Greene, 527 U.S. 263

(1999), the Court addressed the three components of a Brady

17

Prior to Strickler, countless cases reference diligent discovery

in connection with Brady claims. See e.g., United States v.

Rodriguez, 162 F.3d 135 (1st Cir. 1998) (government has no Brady

burden to disclose evidence readily available to a diligent

defender); United States v. Jones, 160 F.3d 473, 479-80 (8th

Cir. 1998) (no Brady violation if the defendants, using

reasonable diligence, could have obtained the information

themselves); United States v. Bailey, 123 F.3d 1381 (11th Cir.

himself with any reasonable diligence); United States v. LeRoy,

687 F.2d 610, 618 (2d Cir. 1982) (evidence is not "suppressed"

within the meaning of Brady if the defendant knew or should have

known of "essential facts permitting him to take advantage of

any exculpatory evidence"); United States v. Stewart, 513 F.2d

957, 960 (2d Cir. 1975) (government not required to disclose a

witness's prior testimony if the defendant is "on notice of the

essential facts which would enable him to call the witness and

thus take advantage of any exculpatory testimony that he might

furnish"). Since Strickler, numerous federal decisions

interpreting Brady continue to include "due diligence" as an

element of Brady. See e.g., United States v. Grintjes, 237 F.3d

876, 880 (7th Cir. 2001) (this court has repeatedly held that

Brady does not apply to evidence that a defendant would have

been able to discover himself through reasonable diligence);

Johns v. Bowersox, 203 F.3d 538, 545 (8th Cir.) (there is no

suppression of evidence if the defendant could have learned of

the information through reasonable diligence), cert. denied, 121

S. Ct. 629 (2000).

48

claim. 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

In this case, the police report of the sexual assault could

49

have easily been discovered with due diligence. Defense counsel

was aware that the victim was allegedly raped by Pine about a

week before her murder. (DAR:818). Counsel was aware that the

victim reported the rape and that she probably did not use her

real name because there was a warrant out for her arrest.

(DAR:824-25). Given this information, defense counsel could

have ascertained the existence of the police report with due

diligence.

Finally, the State submits that the trial court erred in

concluding that Appellee suffered prejudice from the suppression

of this evidence. The court’s conclusion is simply unsupported

by the record. Furthermore, this Court cannot give any

meaningful review of the trial court’s order due to the trial

judge’s complete lack of any analysis. The court simply

concluded that "the Defendant suffered prejudice from the

suppression of the evidence." (PCR:809). As noted above,

Appellee did not suffer any prejudice because the information

contained in the police report would not have led to any

admissible, exculpatory evidence. Furthermore, by defense

counsel’s own account, she knew that Pine had allegedly raped

the victim about a week before the murder and she knew that the

victim reported the rape by using a false name. Defense counsel

also stated that she had Pine’s real name, criminal history, and

name and also on his badge number. Ms. Morgan testified that

the police report listed Officer Lawless’ badge number as 627,

whereas the State’s notice of discovery listed his number as 62.

(PCT:295).

50

his photograph. Because defense counsel had all of this

information, and could have easily obtained the police report

with due diligence, this Court should find that the trial court

erred in granting Appellee relief on his Brady claim.

Defense investigator Sonny Fernandez testified that he did

not recall having received a supplemental police report prepared

by Tampa Police Officer T.A. Lawless regarding statements made

by Donald Smith at the crime scene. (PCT:82-85). Defense

counsel Mina Morgan, on the other hand, testified that she had

the report in her files. (PCT:292-93). Ms. Morgan testified

that she would have wanted to interview Donald Smith, but she

probably ran out of time. (PCT:293). She further acknowledged

discovery. Ms. Morgan excused the officer without taking his

deposition. (PCT:295-96). Upon further questioning, Ms. Morgan

indicated that she probably excused Officer Lawless from his

testimony that she had the report. (PCT:292-93).

as exhibit 18, a copy of a TPD auxiliary report (PCR:650), and

the State’s notice of additional discovery filed in October,

1986, lists a TPD Auxiliary Report. (DAR:822).

51

Ms. Morgan testified that had she seen the report, she would

have been able to locate Donald Smith and ask him how he had

knowledge about the murder while standing outside the crime

scene. (PCT:300-02).

Clearly, the State did not suppress the report filed by

Officer Lawless. Ms. Morgan initially acknowledged that she had

the report, but subsequently speculated that her decision to

excuse the officer from his deposition was because she probably

did not have the report. See Jennings v. State, 782 So. 2d 853,

861 (Fla. 2001) (stating that if defense counsel knows of

information prior to trial, there can be no Brady violation).

In this case, there were indications in the original trial

record that the State provided supplemental crime scene reports

testimony that she had the police report in her files, it cannot

be established that the State suppressed the supplemental police

report.

Even if defense counsel did not have the report, Officer

52

Lawless was listed on the State’s notice of discovery and was

available for deposition. (DAR:812). With the exercise of due

diligence, defense counsel would have obtained the information

contained in the police report authored by Officer Lawless. See

Occhicone v. State, 768 So. 2d 1037, 1042 (Fla. 2000) (stating

that a Brady claim cannot stand if a defendant knew of the

evidence allegedly withheld or had possession of it, simply

because the evidence cannot then be found to have been withheld

from the defendant). The trial judge found that counsel was not

ineffective for failing to properly investigate Appellee’s case.

However, this Court should find that the trial judge erred in

granting relief on this aspect of Appellee’s Brady claim because

the police report was not withheld from defense counsel.

In addition, Appellee did not suffer any prejudice from not

obtaining the report. Even assuming counsel could locate Donald

Smith in time for trial, and assuming Smith gave credible

testimony at the evidentiary hearing, it is clear that Mr. Smith

would not have testified about his conversations with David

Pearson. As a review of Mr. Smith’s testimony at the

evidentiary hearing establishes, David Pearson was one of his

closest friends and Donald Smith would not have "snitched" on

him. At the crime scene, Smith would not tell the police who

gave him the information that someone had been choked, but he

53

claimed he would have told them if they approached him later.

(PCT:245). Despite this claim, Smith stated that he never went

to the police with his information because he was best friends

with David "Pine" Pearson and he lived in the projects and could

not be labeled a snitch. (PCT:248-51). Thus, even if Appellee

had obtained Officer Lawless’ report, it would not have produced

any admissible exculpatory or impeachment evidence.

The trial court’s order granting Appellee relief mentions

"[a] police report regarding an interview with Donald Smith" as

Brady material that the State suppressed. (PCR:808).

Undersigned counsel is unaware of any police report detailing an

interview with Donald Smith (other than Defense Exhibit 18, the

TPD auxiliary report authored by Officer Lawless discussed in

subsection B, supra). In fact, Donald Smith testified at the

evidentiary hearing that he never spoke with the police other

than at the crime scene. (PCT:245-62). Because the witness, by

his own testimony, never gave an interview to the police other

than at the crime scene, the trial court erred in finding that

the State suppressed an apparently nonexistent police report.

Mina Morgan testified that she did not receive Flemnie

Episcopo, stated that he had previously provided Birkins’ PSI to

Mina Morgan and it was available at Appellee’s trial. (PCT:43).

54

(PCT:311). Ms. Morgan testified that the PSI, along with an

FDLE rap sheet, would probably have allowed her to realize that

the scoresheet she was provided was inaccurate. (PCT:311-12).

The scoresheet provided to her prior to trial indicated that Mr.

Birkins scored to a range between 3½ to 4½ years. (PCT:312).

According to the prosecutor, Mr. Birkins’ original scoresheet

was incorrectly computed by another prosecutor and Birkins

really scored between 9 to 12 years. (PCT:336; Defense Exhibit

10).

At Appellee’s trial, defense counsel established that

Birkins was awaiting sentencing on his pending burglary and

grand theft charges and he would not be sentenced on his open

plea until December 19, 1986, about three weeks after his

testimony. (DAR:292-93). Defense counsel was also aware that

Birkins had eight prior felony convictions and could be

sentenced as a habitual felony offender. (DAR:300-01). Both

the prosecuting attorney and defense counsel questioned Birkins

about his sentencing scoresheet range of 3½ to 5½ years in

prison. (DAR:308-09).

Even resolving the conflicting testimony in Appellee’s favor

he had provided defense counsel a copy of the PSI prior to

trial. See Defense Exhibit 10.

55

court’s finding that he suffered prejudice from the nondisclosure

is erroneous. As explained by the United States

Supreme Court in Kyles v. Whitley, 514 U.S. 419, 437 (1995) a

"showing that the prosecution knew of an item of favorable

evidence unknown to the defense does not amount to a Brady

violation, without more." In addition, the defendant must

establish that his defense was prejudiced by the State's

suppression of evidence, in other words, that the evidence was

material. The United States Supreme Court articulated the

specific test for determining the materiality of evidence in

order to meet the prejudice prong of Brady:

[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have

been different. A "reasonable probability" is a

probability sufficient to undermine confidence in the

outcome.

United States v. Bagley, 473 U.S. 667, 682 (1985). A showing of

materiality "does not require demonstration by a preponderance

that disclosure of the suppressed evidence would have ultimately

resulted in the defendant's acquittal." Kyles, 514 U.S. at 434.

Rather, as the Supreme Court explained:

56

[T]he materiality inquiry is not just a matter of

determining whether, after discounting the inculpatory

evidence in light of the undisclosed evidence, the

remaining evidence is sufficient to support the jury's

conclusions. Rather, the question is 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."

Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435)

(citations omitted).

In this case, the alleged suppression of Flemnie Birkins’

PSI had absolutely no effect on the proceedings. Defense

counsel indicated that if she had seen the PSI and FDLE rap

sheet, she would have probably figured out that Birkins

scoresheet range was incorrectly scored. Although this is pure

after-the-fact speculation on trial counsel’s part, the fact

remains that she effectively cross-examined Mr. Birkins at

Appellee’s trial and established that he had eight felony

convictions and could be sentenced as a habitual felony offender

on his burglary and grand theft charges. Despite his extensive

record, Mr. Birkins expected to receive a 3 year sentence on his

pending charges based on his open plea. (DAR:293). Defense

counsel also elicited the fact that Birkins had filed a pro se

motion for release on recognizance wherein he asked to be

released on his pending charges and mentioned that he was a

witness for the State in a first-degree murder case. (DAR:302-

10).

57

Clearly, even if the jury was aware that Birkins scored

between 9 and 12 years on the sentencing scoresheet, rather than

the reported 3½ to 4½ years, such a fact would not have affected

the jury’s credibility determination of Birkins. The jury was

aware that Birkins had an extensive record and faced a possible

lengthy prison sentence on his pending charges, perhaps even

being sentenced as a habitual felony offender. Birkins

testified that he was not seeking any type of deal for his

testimony. In fact, Birkins did not even inform his own

attorney that he was speaking with law enforcement officers

about Appellee’s jail-house confession. The jury was aware,

however, that Birkins had written his judge seeking a release on

his own recognizance for, among other reasons, being a State

witness in Appellee’s trial. Given this information, the fact

that Birkins may have scored to a slightly higher range would

not have affected the jury’s perception of Birkins’ testimony.

Accordingly, the State submits that the trial judge in the

instant case erred in making his nonspecific finding that

Appellee was prejudiced by the State’s alleged suppression of

Flemnie Birkins’ presentence investigation report.

In August 1986, Flemnie Birkins filed a handwritten motion

for probation in his pending case that was contained in his

Police Department and narcotic squad as an informant. See

Defense Exhibit 6.

58

court file. (PCT:39, 57). Defense counsel Mina Morgan

testified that she did not have the document at the time of

trial. (PCT:312). Ms. Morgan did not testify that the document

contained any impeachment evidence. In fact, collateral counsel

never questioned any of the postconviction witnesses about this

document in any detail. (PCT:39, 312). When briefly discussing

Birkins’ motion, the prosecuting attorney, Joe Episcopo, noted

that Birkins did not ask his judge for any type of break because

The postconviction trial judge clearly erred in finding that

Birkins’ pro se motion for probation constituted Brady material

that was suppressed by the State and resulted in prejudice to

Appellee. First, the State questions whether this document

contained any impeachment or exculpatory material. Defense

counsel never identified how she would have used this document

to impeach Birkins. Counsel may have been allowed to confront

Birkins with the fact that he indicated in his motion that he

could potentially help the police as an informant, but this is

not necessarily impeaching evidence. Obviously, if the motion

contained any substantial impeachment value, trial counsel would

have, at a minimum, identified it at the evidentiary hearing and

59

discussed how it affected Appellee’s case.

Second, the motion was never suppressed by the State.

Although defense counsel testified that she did not have the

motion at the time of trial, it was undisputed that the document

was contained in Birkins’ court file; a public record contained

in a court file that could have easily been inspected by counsel

prior to trial. See § 119.01(1), Fla. Stat. (1985) (stating

that it is the policy of this state that all state, county, and

municipal records shall at all times be open for a personal

inspection by any person). Finally, the fact that defense

counsel did not have the motion obviously did not result in any

prejudice to Appellee. As noted, defense counsel never

testified to any impeachment value to the motion and never

claimed that the disclosed information was of such a nature that

confidence in the outcome of the trial was undermined.

Accordingly, this Court should find that the trial judge erred

in granting Appellee relief as to this claim.

Mina Morgan testified at the evidentiary hearing that she

was never given a copy of Flemnie Birkins’ sentencing hearing

held on December 19, 1986, some two weeks after the conclusion

of Appellee’s trial. (PCT:312-13). Ms. Morgan did not file her

notice of appeal in Appellee’s case until January, 1987.

sentenced to three years, but clarified that his final sentence

hearing was scheduled for December 19, 1986. (DAR:292-93).

60

(PCT:313). She testified that she never knew Flemnie Birkins’

sentence until a few years before Appellee’s postconviction

evidentiary hearing. (PCT:313).

At Appellee’s trial, Ms. Morgan questioned Birkins

extensively about his pending charges, his open guilty plea to

the court, and his anticipated three year sentence. (DAR:292-

310). Mr. Birkins testified that he entered a guilty plea, open

to the court, but he expected to be sentenced to three years,

was aware of Birkins scheduled sentencing hearing on December

19, 1986, and was also aware of the presiding judge.

The State submits that the trial judge incorrectly concluded

that the transcript of Birkins’ sentencing hearing constituted

Brady material. Although the court proceeding took place in

December, 1986, the hearing was not transcribed until February

10, 1988. See Defense Exhibit 10. The sentencing hearing took

place in open court on a date defense counsel was well aware of,

thus, had counsel found it relevant and important to attend, she

could have easily attended the hearing. Even if she did not

attend the hearing, it would not be difficult to determine the

sentence imposed on that date. In short, had counsel exercised

61

any diligence, she would have been able to ascertain the

sentence Birkins received.

Additionally, Appellee suffered no prejudice from failing

to have Birkins’ sentencing transcript. Admittedly, the

prosecutor acknowledged at Birkins’ sentencing hearing that the

scoresheet had been improperly calculated, see sub-issue D

supra, but this fact would not have affected the jury’s

credibility determination of Birkins’ testimony. At the

evidentiary hearing, Birkins testified that he rejected a plea

deal to three years in prison and was ultimately sentenced

pursuant to his open guilty plea to jail, community control,

house arrest, and probation. (PCT:138-39). Mr. Birkins was

unhappy with this sentence and indicated that he would have

never taken a plea to "all that." (PCT:139). Even if defense

counsel was aware that Birkins scored to a range of 9 to 12

years, this would not have altered the jury’s view of his

testimony. Accordingly, the trial judge erred in granting

Appellee postconviction relief on this claim.

Mina Morgan testified that she did not believe that she

received a copy of an FDLE rap sheet on Flemnie Birkins.

(PCT:312). She stated that if she had this document, she could

have counted Birkins’ prior convictions and realized that his

admissible in evidence. If Birkins had denied his prior eight

convictions, defense counsel would have only been allowed to

impeach him with certified records of his convictions, not the

rap sheet. See Irvin v. State, 324 So. 2d 684 (Fla. 4th DCA),

cert. denied, 334 So. 2d 608 (Fla. 1976); Peterson v. State, 645

So. 2d 10 (Fla. 4th DCA 1994).

62

scoresheet was miscalculated. (PCT:312). Of course, at

Appellee’s trial, counsel questioned Birkins about his eight

prior felony convictions. Counsel also noted that each of

Birkins’ pending offenses carried five years each, and there was

a possibility that those terms could be doubled if he was

sentenced as a habitual felony offender. (DAR:301).

Even if this Court finds that the State did not disclose the

FDLE rap sheet based on defense counsel’s equivocal statements,

there was no showing that Appellee suffered any prejudice from

the alleged suppression. As previously argued, even if counsel

discovered that Birkins’ scoresheet range had been

miscalculated, such a revelation would not have affected the

outcome of the proceedings. Defense counsel made sure the jury

was aware that Birkins had eight prior felony convictions and

his testimony, Birkins had two pending charges that carried five

year terms, with the possibility of having the terms increased

if he was sentenced as a habitual offender. Despite this

record, Birkins testified that he expected to be sentenced to

not specifically state that Birkins was a confidential

informant, rather Birkins stated in a 1978 letter to the parole

board that he had "help[ed] the Tampa Police Department to cut

down own (sic) the crime rate." (PCR:564). According to

collateral counsel’s third amended postconviction motion,

Birkins also indicated in a separate interview with police in

1984 that "he worked for the police as a C.I.." (PCR:564).

Defense counsel did not allege that the State failed to disclose

this information under Brady, rather this allegation was made in

the context of an ineffective assistance of counsel claim.

(PCR:564). As previously noted, the trial judge rejected

defense counsel’s ineffective of assistance claims.

63

three years. The jury had all of this information and could

factor it into their credibility determination. Thus, there was

no prejudice suffered by Appellee given the alleged suppression

of the rap sheet.

Mina Morgan testified that she did not have a handwritten

letter from Flemnie Birkins to the Department of Corrections

wherein he indicated that he had assisted the Tampa Police

Department in cutting down the crime rate. (PCT:315-17). Ms.

Morgan stated that she would have used the letter to crossexamine

Birkins. (PCT:317).

At Appellee’s trial, Ms. Morgan questioned Birkins about his

64

pro-se motion for release on recognizance. (DAR:303-05). In

his motion, Birkins stated that he knew "several members of law

enforcement who are willing to come and testify in my behalf."

(DAR:304). As previously discussed, defense counsel also

effectively cross-examined Birkins on a number of other issues,

including his prior record, his pending charges, and any

possible deal he had in exchange for his testimony. Admittedly,

defense counsel was unable to cross-examine Birkins about his

assistance with the Tampa Police Department "in cutting down the

crime rate," but such an omission was not so prejudicial as to

create a reasonable probability that the outcome of the

proceeding would have been different had the evidence been

disclosed to defense counsel or discovered by counsel with

reasonable diligence. See Young v. State, 739 So. 2d 553, 559

(Fla. 1999) (stating that "[t]he ultimate test in backwardlooking

postconviction analysis is whether information which the

State possessed and did not reveal to the defendant and which

information was thereby unavailable to the defendant for trial,

is of such a nature and weight that confidence in the outcome of

the trial is undermined to the extent that there is a reasonable

probability that had the information been disclosed to the

defendant, the result of the proceeding would have been

different"). Accordingly, this Court should reverse the trial

65

court’s generic finding under Brady that Appellee suffered

prejudice from the alleged suppression of this evidence.

66

ISSUE II

THE TRIAL JUDGE ERRED IN GRANTING APPELLEE

RELIEF ON HIS CLAIM OF NEWLY DISCOVERED

EVIDENCE.

In Claim III of Appellee’s postconviction motion, Appellee

claimed that newly discovered evidence consisting of

mitochondrial DNA (mtDNA) testing disproved testimony presented

at Appellee’s trial. Specifically, three hairs were recovered

from the victim’s mouth at the medical examiner’s office. At

trial, the State presented the testimony of FBI agent John Quill

who testified that the hairs exhibited Negroid characteristics.

(DAR:313-17). As such, the agent could not exclude Appellee as

the contributor. (DAR:317). Of the three hairs found, two were

of insufficient length to determine their origin. One of the

hairs came from a transitional area of the body; either from an

area on the back of the neck or from an area between the lower

abdomen into the pubic area or the lower pubic area to the anus.

(DAR:321-22). The agent further testified that he could not

hair, including the victim. (DAR:320).

During Appellee’s closing argument, defense counsel argued

that the hairs were consistent with any black person. Given the

fact that the victim was found in a black neighborhood, this was

not surprising. Defense counsel effectively argued that the

67

hairs could have belonged to a number of people, including

Appellee, the victim, or the person defense counsel argued may

have committed the offenses, Johnny Lee Newsome. (DAR:664-65).

During his closing argument, the prosecutor admitted that the

hairs found in the victim’s mouth could not be linked to the

defendant. However, the prosecutor asserted that the hairs were

probably not the victim’s because FBI agent Quill had testified

that one of the hairs came from either an area around her pubic

area or an area on the back of her neck. The prosecutor

rhetorically asked, "I would just defy anybody to tell me how

those are her hairs, how she got them." (DAR:708).

At the postconviction evidentiary hearing, testimony was

presented from Dr. Terry Melton, a mtDNA forensic expert, that

the three hairs did not match Appellee and were exclusively

different than his hair. (PCT:29). The three hairs were

consistent with originating from the victim, or a relative of

the victim. (PCT:33).

In granting Appellee relief on this claim, the trial judge

found:

As to claim III-f, Defendant fails to meet the

standard of newly discovered evidence and requests

leave to amend this claim pending further