IN THE SUPREME COURT OF FLORIDA
BENNIE DEMPS,
Appellant,
vs. CASE NO. SC00-1118
STATE OF FLORIDA,
Appellee.
___________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR BRADFORD COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
CURTIS M. FRENCH
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 291692
DEPARTMENT OF LEGAL AFFAIRS
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 488-0600
COUNSEL FOR APPELL
i
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS .................... i
TABLE OF AUTHORITIES ..................ii
PRELIMINARY STATEMENT ................. 1-3
PROCEDURAL HISTORY ..................3-10
STATEMENT OF THE CASE AND FACTS ........... 10-16
SUMMARY OF THE ARGUMENT ............... 16-17
ARGUMENT
ISSUE I
DEMPS’ PETITION IS PROCEDURALLY BARRED
BECAUSE HE HAS NOT AND CANNOT DEMONSTRATE
THAT HE HAS ACTED WITH DUE DILIGENCE IN
PRESENTING ANY CLAIM ARISING FROM THE
SEWELL MEMORANDUM .................. 17-22
ISSUE II
NO BRADY VIOLATION OCCURRED ............. 23-25
ISSUE III
DEMPS HAS FAILED TO DEMONSTRATE THAT
HE HAS OR CAN PRESENT NEWLY DISCOVERED
ADMISSIBLE EVIDENCE THAT PROBABLY WOULD
RESULT IN A DIFFERENT VERDICT ...............25-30
ISSUE IV
THE ISSUE OF THE PROPORTIONALITY OF
DEMPS’ DEATH SENTENCE IS PROCEDURALLY
BARRED ....................... 31-33
CONCLUSION .......................34
ii
CERTIFICATE OF SERVICE .................34
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963) .................. 23
Demps v. Dugger,
484 U.S. 873, 108 S. Ct. 209,
98 L. Ed. 2d 160 (1987) ...................7
Demps v. Dugger,
874 F.2d 1385 (11th Cir. 1989) ................8
Demps v. Wainwright,
805 F.2d 1426 (11th Cir. 1986) ................6
Furman v. Georgia,
408 U.S. 238, 92 S. Ct. 2726,
33 L. Ed. 2d 346 (1972) .................. 32
Hitchcock v. Dugger,
481 U.S. 393, 107 S. Ct. 1821,
95 L. Ed. 2d 347 (1987) ................. 7,31
STATE CASES
Bryan v. State,
748 So. 2d 1003 (Fla. 1999) ................ 22
Buenoano v. State,
708 So. 2d 941 (Fla. 1998) ................. 29
Conley v. Shutts & Bowen, P.A.,
622 So. 2d 559 (Fla. 3rd DCA 1993) ..............2
Davis v. State,
736 So. 2d 1156 (Fla. 1999) ................ 30
Davis v. State,
742 So. 2d 233 (Fla. 1999) ................. 20
iv
Demps v. Dugger,
514 So. 2d 1092 (Fla. 1987) ............... 7,32
Demps v. Dugger,
714 So. 2d 365 (Fla. 1998) ................. 10
Demps v. State,
395 So. 2d 501 (Fla. 1981),
cert. denied, 454 U.S. 933,
102 S. Ct.430, 70 L. Ed. 2d 239 (1981) .........4,31,32
Demps v. State,
416 So. 2d 808 (Fla. 1982) ..................5
Demps v. State,
462 So. 2d 1074 (Fla. 1985) ................5,6
Demps v. State,
515 So. 2d 196 (Fla. 1987) ................ 7,21
Downs v. Dugger,
514 So. 2d 1069 (Fla. 1987) ................ 32
Downs v. Dugger,
740 So. 2d 506 (Fla. 1999) ................ 2,18
Harris v. Game and Fresh Water Fish Com’n,
495 So. 2d 806 (Fla. 1st DCA 1986) ............. 26
Jackson v. Dugger,
633 So. 2d 1051 (Fla. 1993) .................2
Jones v. State,
591 So. 2d 922 (1991) ....................1
Jones v. State,
678 So. 2d 309 (Fla. 1996) ................. 25
Jones v. State,
709 So. 2d 512 (Fla. 1998) ................23,25
Kennedy v. State,
547 So. 2d 912 (Fla. 1989) ..................2
Larzalere v. State,
676 So. 2d 394 (Fla. 1996) ................. 33
v
Mills v. State,
684 So. 2d 801 (Fla. 1996) ..................1
Phillips v. State,
608 So. 2d 778 (Fla. 1992) ..................2
Ragsdale v. State,
720 So. 2d 203 (Fla. 1998) ................. 17
Roberts v. State,
568 So. 2d 1255 (Fla. 1990) .................2
Rose v. State,
617 So. 2d 291 (Fla. 1993) ..................2
Sims v. State,
25 Fla. L. Weekly S128 (Fla. February 16, 2000) ...... 30
Slater v. State,
316 So. 2d 539 (Fla. 1975) ..................4
Smith v. Dugger,
565 So. 2d 1293 (Fla. 1990) .................2
Swafford v. Dugger,
569 So. 2d 1264 (Fla. 1990) .................2
Thomas v. State,
581 So. 2d 993 (Fla. 2d DCA 1991) ............. 27
Van Poyck v. State,
564 So. 2d 1066 (Fla. 1990) ................ 33
MISCELLANEOUS
Ehrhardt, Florida Evidence, 2000 .............. 29
Florida Rule of Criminal Procedure 3.850 ...........1
Chapter 119, Florida Statutes ..................
. 22
1
PRELIMINARY STATEMENT
Demps contends that he has newly-discovered evidence that
he was convicted wrongly. This is his fourth state motion for
postconviction relief, in which he attacks a conviction for a
crime committed almost 24 years ago. That conviction became
final almost 20 years ago, when this Court issued its opinion
affirming Demps’ conviction and sentence. Florida Rule of
Criminal Procedure 3.850 "does not authorize relief based on
grounds that could have been or should have been raised at trial
and, if properly preserved, on appeal of the judgment and
sentence." Nor may a convicted capital defendant file and
obtain relief on a 3.850 motion filed more than one year after
the conviction and sentence became final unless he can, at a
minimum, allege and demonstrate that the facts on which his
claim is predicated were unknown to him or his attorney, that
these facts could not have been ascertained earlier in the
exercise of due diligence, "and that the motion was filed within
one year of the discovery of evidence upon which avoidance of
the time limit was based." Mills v. State, 684 So.2d 801, 804-
05 (Fla. 1996). Furthermore, if the claim is one of newly-discovered
evidence of innocence, the defendant must allege and
present
admissible newly-discovered evidence of such a naturethat it would probably have produced a different verdict if it
2
had been admitted at trial. Jones v. State, 591 So.2d 922
(1991). The defendant not only carries the ultimate burden of
proof on his claim, but also bears the burden of alleging
sufficient facts to justify an evidentiary hearing; he must
allege specific facts
in his motion which, if believed,demonstrate both that he has acted with due diligence in
presenting his claim, and that he would be entitled to relief if
those facts are proven. The defendant may obtain an evidentiary
hearing only if he has alleged such specific facts. E.g., Downs
v. Dugger, 740 So.2d 506 (Fla. 1999); Rose v. State, 617 So.2d
291 (Fla. 1993); Swafford v. Dugger, 569 So.2d 1264 (Fla. 1990);
Roberts v. State, 568 So.2d 1255 (Fla. 1990). Conclusory
allegations are not sufficient to state a claim for relief.
Jackson v. Dugger, 633 So.2d 1051 (Fla. 1993); Phillips v.
State, 608 So.2d 778 (Fla. 1992); Smith v. Dugger, 565 So.2d
1293 (Fla. 1990); Kennedy v. State, 547 So.2d 912 (Fla. 1989).
It is the State’s contention that Demps is raising nothing
that he has not raised or could not have raised previously. To
support its contention, the State will rely upon the entire
record of State litigation concerning Demps’ conviction and
death sentence for the murder of Alfred Sturgis, including the
original trial and the evidentiary hearing on Demps’ original
postconviction motion, which matters are contained within this
3
Court’s own records in this case. See Conley v. Shutts & Bowen,
P.A., 622 So.2d 559 n. 1 (Fla. 3rd DCA 1993)("This court has a
right to take judicial notice of its own record."). In
addition, the State will rely on published decisions of the
Eleventh Circuit Court of Appeals involving Demps’ attacks on
his conviction and death sentence, as well as pretrial
depositions furnished to the court below.
The original trial record will be cited to as TR. The trial
transcript will be cited to as TT. The transcript of the 3.850
evidentiary hearing of December 13 and 14, 1983, will be
referred to as PC-T, while the Supplemental Record on Appeal in
Case No. 64,787, will be referred to as PC-R. The record on
appeal of Demps’ third 3.850 motion will be referred to as PC3-
R. Because this brief has been drafted before ruling by the
court below and without the benefit of a record on appeal, any
pleadings filed in the instant case will simply be identified by
date and style. Any citations to the transcript of the May 12
hearing will be in accordance with the pagination of the real
time transcript provided to the Attorney General by the Court
Reporter shortly after the hearing.
PROCEDURAL HISTORY
On September 6, 1976, Alfred Sturgis was stabbed to death
in a cell on "W" wing at Florida State Prison. In a dying
4
declaration to corrections officer A.V. Rhoden, Sturgis named
Bennie Demps and two other inmates as his assailants, stating
that Demps and Harry Mungin held him while "Toothless" Jackson
stabbed him. Inmate Larry Hathaway corroborated Sturgis’ dying
declaration by testifying at trial that, while everyone else was
at chow, he saw Harry Mungin standing in a cell doorway,
apparently acting as a lookout, while, inside the cell, Demps
was holding Sturgis and Jackson was stabbing him.
At his trial, Demps and his codefendants pursued a joint
defense, contending that Arthur Copeland (Sturgis’ homosexual
lover) was Sturgis’ killer. This theory of innocence was
rejected; Demps was convicted of murder and sentenced to death.
Although defense depositions were taken pretrial, neither
Chief Prison Inspector and Investigator Cecil Sewell nor
Departmental Investigator Ronnie K. Griffis nor Secretary Louie
Wainwright testified at trial.
On appeal, Demps argued,
inter alia, that his death sentencewas disproportionate to the life sentences imposed upon his
codefendants, because Jackson had stabbed the victim while Demps
held him, citing Slater v. State, 316 So.2d 539 (Fla. 1975).
This Court reaffirmed the principle enunciated in Slater that
equally culpable defendants should receive equal sentences, but
held that nothing in Slater "prohibits a trial judge from taking
1
Demps also alleged that the State had illegally solicitedthe testimony of Larry Hathaway through inducements. The
Florida Supreme Court found this claim to be procedurally barred
as having been effectively raised on direct appeal or, if "not
exactly raised, it could have been." Id. at 809.
5
into consideration the quality of aggravating circumstances
applicable to each defendant." Demps v. State, 395 So.2d 501,
506 (Fla. 1981),
cert. denied 454 U.S. 933, 102 S.Ct.430, 70L.Ed.2d 239 (1981). Noting that, of the three defendants, "only
appellant had the loathsome distinction of having been
previously convicted of the first-degree murder of two persons
and attempted murder of another," this Court held that the
"record amply supports the judge’s determination that [Demps]
was especially deserving of the death sentence." Ibid.
Demps then initiated postconviction proceedings pursuant to
Fla.R.Crim.P 3.850, alleging,
inter alia, prosecutorialinterference with defense witness Michael Squires. The trial
court denied relief without hearing; however, this Court
remanded the case to the trial court for an evidentiary hearing
on Demps’ claim of State interference with a defense witness.
Demps v. State, 416 So.2d 808 (Fla. 1982).
1At the evidentiary hearing on remand, "Demps sought to
demonstrate ... that the state, through Department of
Corrections Investigator Bill Beardsley, induced Michael Squires
6
not to testify that the state’s central witness, Larry Hathaway,
had told Squires that he was pressured to testify and that he
did not know who killed Sturgis." Demps v. State, 462 So.2d
1074, 1074-75 (Fla. 1985). In preparation for the evidentiary
hearing, defense counsel,
inter alia, sought Florida ParoleCommission files concerning William Michael Squires (PC-R 4-5).
In addition, defense counsel subpoenaed all the members of the
Florida Parole Commission for deposition; the Commission members
moved to quash (PC-R 18-21). Their motion to quash the subpoena
was denied, and Commission members were ordered to submit to
depositions (PC-R 51). Two Commissioners (Kenneth Simmons and
Barbara Greadington) testified at the evidentiary hearing (PC-T
166-224). The trial court denied relief, finding that Demps had
failed to prove his claim of State interference with Squire’s
testimony "by any believable evidence." This Court affirmed,
finding that the trial court’s order was "supported by
competent, substantial evidence." Id. at 1075.
Demps next initiated federal habeas corpus proceedings,
alleging, among other things, that the State had failed to
reveal a deal it had made with Hathaway and had interfered with
defense witness Michael Squires. The district court denied
relief without an evidentiary hearing, and Demps appealed to the
Eleventh Circuit Court of Appeals. That Court found that Demps’
7
"argument that Hathaway received a deal from the state is simply
unsupported by the record." Demps v. Wainwright, 805 F.2d 1426,
1432 (11th Cir. 1986). As to the witness-interference claim,
the Eleventh Circuit noted that a state-court hearing had been
conducted on this issue "after approximately eighteen months of
extensive preparation." Id. at 1433. The Court found the
conclusion that the State had not interfered with defense
witness Squires to have been "amply supported by the [State-court]
record." Id. at 1435. The Court affirmed the denial of
federal habeas corpus relief. The United States Supreme Court
denied certiorari. Demps v. Dugger, 484 U.S. 873, 108 S.Ct.
209, 98 L.Ed.2d 160 (1987).
While his federal habeas proceedings were pending on appeal,
Demps filed a second federal writ of habeas corpus alleging that
death-qualification of the jury venire denied him his right to
a jury representing a fair cross section of the community. This
petition was dismissed and Demps did not appeal.
After the Governor of Florida signed a second death warrant,
Demps petitioned this Court for a writ of habeas corpus on the
ground that his sentencing proceeding was unconstitutional under
Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d
347 (1987). This Court denied relief, finding any Hitchcock
error harmless. Demps v. Dugger, 514 So.2d 1092 (Fla. 1987).
8
Next, Demps filed a second 3.850 motion, contending,
interali
a, that the State had withheld evidence regarding (1) LarryHathaway’s complicity in the crime, (2) the "true" deal the
State had with Hathaway, and (3) Hathaway’s anti-social
personality disorder and propensity to lie. The trial court
denied relief, finding that these claims could and should have
been raised previously. On appeal, this Court affirmed, noting
that "Rule 3.850 bars an untimely petition based on information
previously ascertainable through the exercise of due diligence."
Demps v. State, 515 So.2d 196, 198 (Fla. 1987).
Demps then filed a third federal habeas corpus petition,
claiming,
inter alia, Hitchcock error and that the State hadwithheld exculpatory evidence regarding its witness Larry
Hathaway. The federal district court denied relief without a
hearing, finding any Hitchcock error harmless, and that Demps’
Hathaway claim had already been raised in his first petition and
was therefore successive. The Eleventh Circuit Court of Appeals
affirmed. Demps v. Dugger, 874 F.2d 1385 (11th Cir. 1989). The
Court concluded the Hitchcock error was harmless because Demps
would not have been able to present any persuasive mitigating
evidence; his military record was unfavorable, there was no
evidence that he had abused drugs while in prison, Demps’ prison
record showed that he had a history of disciplinary problems,
2
Judge Clark, concurring specially, found that the record"demonstrates that ... mitigating circumstances do not exist.
The petitioner has failed to allege facts to prove the existence
of nonstatutory mitigating circumstances." Id. at 1396.
9
and the life sentences imposed on his codefendants was not
mitigating in view of Demps’ prior record of having been
convicted of two murders and an attempted murder. Id. at 1390-
91.
2 The Hathaway claim, the Court concluded, constituted anabuse of the writ. Id. at 1392-93.
On May 4, 1990, Demps filed a second state habeas petition
in this Court, raising two claims. In his first claim, he
contended that this Court erred in affirming his death sentence
on direct appeal despite having struck two aggravators.
Secondly, Demps contended the penalty-phase jury instructions
improperly shifted the burden of proof.
On September 7, 1990, Demps filed a third state 3.850 motion
in the circuit court, containing three claims, the second two of
which were identical to the two claims raised in Demps’ most
recent state habeas petition. The first claim was the
lengthiest claim. In it, Demps once again raised the issue of
prosecutorial tampering with defense witnesses, and also
contended once again that the State withheld exculpatory
evidence. What motivated this alleged misconduct, Demps
contended, was a prison reform movement at Florida State Prison
10
that officials with the Department of Corrections wanted so
badly to stop that, with the collusion of the prosecutor in this
case, they created "Perjury Inc." in order to falsely prosecute
(for murder) certain inmate activists for prison reform,
including Bennie Demps, in order to quash the movement. Demps
alleged that DOC officials engaged in a conspiracy to blame
Demps, Jackson and Mungin for the murder of Alfred Sturgis, and
then "systematically terrorized witnesses who knew the truth."
The real killer of Alfred Sturgis, Demps now suggested, was an
inmate named Leroy Culbreth, who in turn was later murdered by
one Bo Brown.
The trial court summarily denied the motion by order dated
September 1, 1994, finding that Claim I was procedurally barred,
as it was dependent upon alleged witnesses long known to the
defense and therefore not newly discovered; furthermore, the
court found, Demps’ "untimely utilization of Chapter 119"
defeated any claim of "due diligence." In addition, the trial
court found that Claim II was procedurally barred for having
already been raised on direct appeal, and that Claim III was
procedurally barred because it could and should have been raised
on direct appeal (PC3-R 628-29).
The appeal from the trial court’s denial was orally argued
in combination with the pending state habeas petition. This
11
Court affirmed the trial court’s summary denial of relief under
3.850, concluding that the trial court "properly applied the
law" in denying the motion without an evidentiary hearing. This
Court also denied the habeas petition. Demps v. Dugger, 714
So.2d 365 (Fla. 1998).
STATEMENT OF THIS CASE AND FACTS
On July 2, 1999, Demps filed the instant 3.850 motion – his
fourth such motion and,
in toto, at least his ninthpostconviction attack on his conviction and death sentence. In
this motion, Demps contended that a memorandum from Cecil Sewell
to Louie Wainwright dated September 7, 1976, is newly discovered
evidence of his innocence. On December 7, 1999, Demps, through
counsel appointed to represent him in these proceedings, filed
a supplement to his fourth 3.850 motion, consisting of
affidavits from his trial counsel, John Carroll, and from Peter
Enwall and Leonard Ireland, trial counsel for his two co-defendants.
None of the three affiants could recall whether or
not they had received a copy of the Sewell memorandum at trial.
The State filed a response on January 14, 2000, contending
that the motion should be denied because (1) Demps had failed
sufficiently to allege due diligence, and (2) had failed to
12
demonstrate that he could present any new evidence which would
be admissible at trial.
On April 13, 2000, Demps filed a second supplement to his
motion, accompanied by an affidavit from Demps’ attorney Bill
Salmon, stating that after being appointed to represent Bennie
Demps on his Petition for Clemency, Mr. Salmon had "reviewed"
material submitted by the "State" on the weekend of "July 3-5,
1998," and had "discovered" the Sewell memorandum. In the
supplemental pleading itself, Demps alleged that the reason he
had not discovered the Sewell memorandum earlier was that the
State "hid" this document from him for over 20 years. In
addition, he also alleged that the memorandum was "Brady"
material, and that if he had obtained this document before
trial, he could have used it in a "myriad" of ways, because it
could have been used for "impeachment" and it also revealed
witnesses unknown to him.
The State responded to this pleading on April 25, 2000,
contending (1) Demps still had not explained when he had
received the Sewell memorandum, or identified the State agency
which had furnished the material, or offered anything more than
a conclusory allegation that the State "hid" the document to
justify failing to present it to the Court previously, and (2)
despite having a year and ten months to investigate and develop
3
At a May 3, 2000 telephone conference, Mr. Salmon hadstated that his supplemental pleadings "set out how and from
whom I received the information, that being the
state."Transcript of May 3, 2000 telephone hearing, p. 14 (emphasis
supplied).
13
any evidence following the "discovery" of the letter, Demps had
not identified any admissible evidence he might use to advance
his claim.
The cause came on for argument May 12, 2000. At this
hearing, counsel for Demps for the first time identified the
Parole Commission as the State agency which had provided the
materials in which he had "discovered" the Sewell memorandum
(May 12 hearing, real time transcript at 13).
3 Counsel alsocontended for the first time that he could not have obtained
these records earlier because Parole Commission records are
"confidential;" even if he had filed a request for public
records from the Parole Commission, "the response would have
been: You get nothing" (May 12 hearing, real time transcript at
19). Counsel asserted that the memo "could not have been
otherwise discovered ... earlier than I found it ...[;] nobody
else could have found it" (May 12 hearing, real time transcript
at 12).
Defense counsel argued that the letter was Brady material
because "the Department of Corrections, every guard that works
there, every investigator that worked on this case for the
14
state, everybody connected with the Department of Corrections
from the institution where this crime occurred to the situs of
the Capitol of the State of Florida in Tallahassee, everybody
associated with the Florida Parole Commission, they are all
agents of the state and if the document is in the custody and
possession of agents of the state, it’s just like it’s in the
custody and possession of the state attorney" (May 12 hearing,
real time transcript at 14-15).
Defense counsel stated that he had sent his investigator to
talk to A.V. Rhoden, the correctional officer who had testified
at trial about Sturgis’ dying declaration. However, counsel
failed to inform the court what Rhoden had told his investigator
or what either Rhoden or the investigator might say if called to
testify at any evidentiary hearing (May 12 hearing, real time
transcript at 15).
The trial court asked defense counsel "what is it that you
are going to show me during [any evidentiary hearing] that is
going to change the result in this case?" (May 12 hearing, real
time transcript at 23). Counsel responded that "with this
information and the discovery that [the Sewell memo] might
logically and reasonably lead to," and "everything that it would
produce," he could convince a jury that Demps was innocent (May
12 hearing, real time transcript at 25, 28). Defense counsel
15
claimed the Sewell letter was admissible as a business record to
contradict the testimony of A.V. Rhoden (May 12 hearing, real
time transcript at 26). In addition, he stated that he would
call Griffis and then Sewell and then confront Sewell with his
letter (May 12 hearing, real time transcript at 27). Defense
counsel acknowledged that he did not know if either Sewell or
Griffis is still alive (May 12 hearing, real time transcript at
50).
Defense counsel also asserted, for the first time at the
hearing, that the letter "enables" him to relitigate the issue
of the proportionality of his sentence (May 12 hearing, real
time transcript at 30).
The State attempted to introduce affidavits from Wendy
Schulte, Capital Punishment Research Specialist for the Clemency
Administration Office, Florida Parole Commission and custodian
of clemency files in all cases referred to the Florida Parole
Commission by the Governor, and from Janet Keels, Coordinator of
the Office of Executive Clemency. These affidavits
authenticated documents from the Florida Parole Commission
showing that the September 7, 1976, Sewell memo which Demps is
now contending is newly discovered evidence was contained in
Demps’ clemency report which was furnished by the Parole
Commission, pursuant to Parole Commission rules, to Demps’ then
16
attorney John Carroll in February of 1982, by means of certified
mail, for which the Parole Commission has a return receipt.
Demps’ counsel objected on the grounds that the affidavits were
late and that admitting the affidavits would in effect be giving
the State a one-sided evidentiary hearing (May 12 hearing, real
time transcript at 34-35). The trial court sustained the
objection (May 12 hearing, real time transcript at 36).
Following the May 12 hearing, the trial court ordered the
State to furnish any pretrial depositions which could
corroborate or refute the Addendum Report of Inspector Bill
Beardsley (TR 180), which recites that several witnesses in
addition to A.V. Rhoden heard Sturgis name Demps, Jackson and
Mungin as his assailants. On the morning of May 17, the State
supplemented its response with pretrial depositions from Bill
Beardsley, A.V. Rhoden, Billy Raulerson, and Hershel Wilson,
plus Beardsley’s report summarizing expected testimony (to which
he had referred in his deposition), plus the trial testimony of
A.V. Rhoden. State’s Limited Supplemental Response to
Successive 3.850 Motion for Postconviction Relief, filed on or
about May 17, 2000.
These depositions show that several witnesses in addition
to A.V. Rhoden heard Sturgis name his assailants. E.g., October
12, 1977 deposition of Hershel Wilson at 10 (as he was being
17
carried down the stairs, "Sturgis looked at me and he said,
‘Sergeant Wilson,’ he said, ‘get Mungin, Demps and Jackson.’
Said, ‘Mungin and Demps held me. James Jackson stabbed me.’");
October 12, 1977 deposition of Billy Raulerson at 6, 10 (as he
was being carried down stairs, Sturgis told Raulerson it was
"Demps, Mungin and Jackson and Jackson is the one that stabbed
me."); October 12, 1977 deposition of Bill Beardsley at 15-16
(inmate W.T. Jackson told him that, while Sturgis was being
carried down the stairs, he had heard Sturgis say that "Teethes
or Toothes and Demps and Mungin were the ones that had stabbed
him"); February 16, 1978 deposition of A.V. Rhoden at 15, 22 (on
way to Shands hospital, Sturgis, aware that he was dying, had
told him, "Mungin and Demps held me and Jackson stabbed me.");
trial testimony of A.V. Rhoden (TT 543)(same).
As undersigned counsel is drafting this brief, the trial
court has not yet ruled on Demps’ latest motion for
postconviction relief. However, the trial court did indicate at
the close of the May 12 hearing that it was his "strong
inclination at this time to summarily deny the [3.850] motion"
and the court asked the State to submit a proposed order (May 12
hearing, real time transcript at 64-65).
SUMMARY OF THE ARGUMENT
18
Regardless of the ultimate phraseology of the court’s order,
the State will argue in this appeal (1) that Demps’ petition is
procedurally barred because he has failed to demonstrate that
any issue regarding the Sewell memorandum could not have been
litigated long ago; (2) that Demps has failed to demonstrate
that any sort of Brady violation occurred; (3) that Demps has
failed to demonstrate that he has or can present any newly-discovered
admissible evidence; (4) that Demps has failed to
present any evidence which would probably result in a different
verdict if he were given a new trial or resentencing, and (5)
any issue of the proportionality of Demps’ death sentence is
procedurally barred because it was not timely raised following
the receipt of the memo alleged to be newly discovered and
because the issue of proportionality was raised and decided on
direct appeal and nothing Demps has presented in this proceeding
calls into question that previous determination.
ARGUMENT
ISSUE I
DEMPS’ PETITION IS PROCEDURALLY BARRED
BECAUSE HE HAS NOT AND CANNOT DEMONSTRATE
THAT HE HAS ACTED WITH DUE DILIGENCE IN
PRESENTING ANY CLAIM ARISING FROM THE SEWELL
MEMORANDUM
19
This case illustrates the importance of the requirement that
3.850 motions include specific allegations which, if believed,
would support a finding that the defendant has acted with due
diligence. What Demps has attempted to do is present
allegations that say as little as possible about what he has,
where he got it and what he is trying to prove, and then claim
that he is entitled to an evidentiary hearing on the ground that
the "record" does not clearly refute these vague and conclusory
allegations. Ragsdale v. State, 720 So.2d 203, 207 (Fla. 1998)
("A summary or conclusory allegation is insufficient to allow
the trial court to examine the specific allegations against the
record."). Furthermore, when confronted with virtually
irrefutable evidence that Demps’ previous attorney received a
copy of this very memo by certified mail in 1982, Demps’
response was not, "this is how I will rebut this evidence if
given an evidentiary hearing," but, rather, that this evidence
could not be considered except in a full-blown evidentiary
hearing – no matter that Demps had supported his own pleadings
with affidavits, and no matter that he cannot even begin to say
what he would introduce to rebut the State’s evidence, and no
matter that the records refuting his claim come from the very
same agency from which he received the memo in 1998.
20
Not until the May 12 hearing did Demps ever identify the
State agency from which he had supposedly received the Sewell
memo in 1998. Even then, he did not say (and never has said)
how he obtained them or why the "State" had provided them. In
fact, although his attorney later claimed to have "reviewed"
documents provided by the "State" on the weekend of July 3-5,
1998, he never has stated when he
received them. Compare Downsv. Dugger, supra, 740 So.2d at 512 (summary denial appropriate
because Downs did not meet his burden of demonstrating that an
allegedly withheld memo could not have been discovered earlier
through the exercise of due diligence, where Downs failed to
supply court with circumstances surrounding discovery of the
memo, or to disclose when or under what conditions memo was
revealed to defense).
It was Demps’ burden to allege facts which, if believed,
would demonstrate that he has exercised due diligence in
presenting this claim. He has never offered more than a
conclusory allegation that the State "hid" the memo for over 20
years to justify failing to present it to any court prior to
July of 1999. Thus, as in Mills v. State, supra, he has failed
to meet his threshold burden of alleging
specific facts which,if believed, would demonstrate that he has exercised due
diligence in presenting this claim; put another way, he has
21
failed to allege
specific facts which would support a conclusionthat the State "hid" the document, or that for whatever reason
he could not have obtained and did not obtain this document long
ago.
Furthermore, although Demps’ vague and conclusory motion
gave the State no clue where to look for any rebuttal to the
claim that the memo could not have been discovered earlier than
1998, the State fortuitously discovered and submitted records
from the Parole Commission – the same agency that Demps’ counsel
very belatedly admitted had provided the Sewell memo to him –
which show that this very document was disclosed to Demps as
early as 1982 – prior to the evidentiary hearing on his first
3.850 motion. Demps’ objection to consideration of these
documents should not have been sustained. First of all, it
should be noted that while these records were submitted in
connection with affidavits, the affidavits essentially were
merely the means by which these Parole Commission records were
authenticated. Secondly, while it is true that genuinely
controverted issues may only be resolved by means of an
evidentiary hearing, Demps has only offered vague allusions to
a "multitude of people, lawyers, that have been involved in Mr.
Demps’ case since his conviction and imposition of death
sentence to show that each and everyone of them could not,
22
understand [sic] any sense of due diligence, [have] been able to
find this document." Demps not only has never identified even
a single one of the "multitude," but he has never told us what
any of them would say other than the very conclusion which he
contends he can prove. Thus he has not even
alleged anythingwhich controverts the Parole Commission affidavits.
In short, there is no real controversy. That being the
case, there is no controversy to be resolved by evidentiary
hearing and Demps has no right to ask this Court to ignore clear
proof that his allegation that the State "hid" the Sewell memo
for over 20 years is utterly baseless. An evidentiary hearing
in this case on the issue of diligence would be a waste of
scarce judicial resources. This claim could and should have
been raised, if at all, in his first 3.850 motion, not his
fourth. Davis v. State, 742 So.2d 233, 237 (Fla. 1999) (claim
was abuse of process where it could have and should have been
raised in previous 3.850 motion).
Even if the affidavits are ignored, however, he has failed
to demonstrate due diligence in presenting this claim. His
contention at the May 12 hearing that Parole Commission records
are confidential and would have been unavailable to him prior to
1998 is refuted first of all by the fact that the Parole
Commission
did provide numerous documents in 1998, including the4
Although at the May 12 hearing Mr. Salmon finallyidentified the agency which had provided the records which
included the Sewell memo, he still has not explained why they
were disclosed. In fact, Mr. Salmon was appointed to represent
Demps in his 1998 clemency proceedings and these records were
disclosed to him as required by the rules of clemency
proceedings. What Mr. Salmon also has not explained is why such
records would have been disclosed during his 1998 clemency
proceedings but not during his 1982 proceedings. One would
think that the 1998 file would have been an update of the file
as it existed in 1982, and would have included everything in the
1982 file (including this 1976 memo) plus whatever documents had
been generated in the intervening 16 years.
23
memo at issue here. Since these records and this memo obviously
were
not confidential or unavailable then, why would they havebeen unavailable earlier? Demps has not attempted to explain
this.
4 In addition, the record of Demps’ first 3.850 motion andevidentiary hearing shows that he subpoenaed Parole Commission
records of Michael Squires, was granted leave to depose all the
Florida Parole Commissioners, and that, at the evidentiary
hearing, called as witnesses two members of the Parole
Commission, Kenneth Simmons and Barbara Greadington. If he
could have obtained and did obtain Parole Commission records of
Michael Squires, surely he could have obtained his own Parole
Commission records. He certainly has offered no explanation of
why he could not have done so.
Finally, this Court has previously noted that Demps has
utilized the Florida Public Records Act, Demps v. State, supra,
515 So.2d at 198, and Demps has not explained why he could not
24
have obtained the Sewell memo long before 1998 from the
Department of Corrections through Chapter 119, Florida Statutes.
As this Court ruled in Demps’ third successive 3.850 motion,
Demps’ "untimely utilization of Chapter 119, Fla. Stat., defeats
any claim of ‘due diligence’ just as it did in Demps [supra, 515
So.2d]." 714 So.2d at 367 (affirming the trial court’s order on
this point). Because the Sewell memo could have been presented
long ago, his present claim based upon that memo is procedurally
barred. Bryan v. State, 748 So.2d 1003, 1007-08 (Fla. 1999)
(claim procedurally barred where based on evidence that could
have been obtained previously through the exercise of due
diligence).
Demps has not acted with due diligence in presenting this
claim. He could have raised any issue involving the Sewell memo
many years ago. He did not do so, and not because the memo was
unavailable, or because his previous attorneys were in any way
inadequate, but for the more obvious reason that his present
theory that Jackson was not merely
one assailant but the onlyassailant is utterly contrary to the theories of innocence he
spent years litigating, i.e., initially that Arthur Copeland was
the killer and later that Leroy Culbreth (AKA "Ninety-Nine") was
the killer. Demps’ previous attorneys did not use the memo
25
because it was of no help to them whatever, not because the
State concealed it from them.
ISSUE II
NO BRADY VIOLATION OCCURRED
Demps did not cite Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), in any of his pleading in this
case. Nor did he claim that the prosecution suppressed any
exculpatory evidence. Indeed, he virtually conceded in his
initial motion that the prosecutor was never in possession of
the Sewell memo. Motion to Vacate at 3 (the "face" of the
report shows "that it was not sent to the State Attorney’s
Office"). However, at the May 12 hearing, Demps’ counsel argued
that Brady was violated, under a theory that every employee of
any state agency, no matter how far removed from the prosecution
of the case, is an agent of the State, and any evidence in the
hands of any such "agent" is construed to be in the hands of the
prosecution. This is not the law. In Jones v. State, 709 So.2d
512, 520 (Fla. 1998), this Court declined to find that certain
evidence was "withheld by the police" even though the witness
charged with nondisclosure was himself a police officer, where
the officer was not involved in the homicide investigation, his
statements were not part of any documents or reports in the
26
possession of the police, and he affirmatively testified that he
had not told anyone about his information. While Sewell’s title
was from the face of the memo apparently "Chief Prison Inspector
and Investigator," the letter indicates no more than that an
investigator on the scene had called Sewell to report that an
inmate had been murdered and that Sewell had thereafter sent a
memo to the Secretary of Corrections. Demps has made no showing
that Sewell was anywhere near Florida State Prison, was
personally involved in the investigation or had talked to anyone
with first-hand knowledge of the crime. Nor has he shown that
Inspector Griffis or any other DOC investigator, or any police
or state attorney investigator, or any state attorney was ever
aware of Sewell’s memo. Thus, he has failed to allege facts
from which we might conclude that the "prosecution" suppressed
any evidence. Ibid. See also Demps v. Wainwright, supra, 805
So.2d at 1432 ("We decline to hold that [prison inspector]
Beardsley’s memorandum requesting a transfer for Hathaway and
Zeigler, for the purpose of protection, forms the basis for a
Brady claim.").
Furthermore, as in Jones, there is no reasonable probability
that if the Sewell memo had been disclosed the outcome of the
proceedings would have been different. The statement simply is
not material. For one, it is not an admissible document itself.
27
Nor has Demps shown that it could have led to substantively
admissible evidence. And even if Demps could have admitted it,
he could only have done so by abandoning the defense he did
present at trial. Furthermore, he would have faced strong
rebuttal evidence from the state, because in fact Sturgis had
identified his
three assailants, including Demps, to a number ofpersons, not just to A.V. Rhoden.
Demps is not entitled to an evidentiary hearing or relief
on his
Brady claim.ISSUE III
DEMPS HAS FAILED TO DEMONSTRATE THAT HE HAS
OR CAN PRESENT NEWLY DISCOVERED ADMISSIBLE
EVIDENCE THAT PROBABLY WOULD RESULT IN A
DIFFERENT VERDICT.
Aside from being time-barred, Demps’ newly-discovered
evidence claim fails on its face to demonstrate that he has
newly-discovered,
admissible evidence, which would probablyproduce a different verdict. Jones v. State, 709 So.2d 512, 521
(Fla. 1998) (court should initially consider whether alleged
newly-discovered evidence would have been admissible at trial or
whether there would have been any evidentiary bars to its
admissibility). Inadmissible hearsay will not support the grant
of a new trial. Jones v. State, 678 So.2d 309 (Fla. 1996).
28
All Demps has, and all he alleges, is a letter written over
22 years ago by someone who was not a witness at trial and was
not directly involved in the investigation of this case. This
letter itself obviously is hearsay, and Demps did not even
allege in his motion how it might be substantively admissible.
After the State filed its response arguing that Demps had failed
to demonstrate that he had any admissible evidence, Demps
suggested, indirectly through the affidavits filed in
supplementation to his motion, that it would be admissible to
impeach, presumably the testimony of A.V. Rhoden who testified
at trial about Sturgis’ dying declaration.
However, at the May 3 telephone conference, counsel for
Demps suggested for the first time that the letter would be
admissible as a business record of the Department of Corrections
(May 3 hearing at 15).
Although Demps’ proffers in this regard are opaque at best,
the State will attempt to address them.
First, although there is a business record exception to the
hearsay rule, the business record exception will not justify the
admission in evidence of hearsay contained within the business
record without an independent justification for the internal
hearsay. Harris v. Game and Fresh Water Fish Com’n, 495 So.2d
806, 809 (Fla. 1st DCA 1986) (assuming that report of agency’s
5
Only Sturgis’ final statement to Rhoden was admitted inevidence because it was the most clearly a dying declaration.
Trial transcript at p. 21.
29
internal investigator was business record, where investigator
had based his findings on discussions with third persons, "the
information contained in the investigator’s report was hearsay"
not falling under any hearsay exception). In this case, there
is no indication that Sewell had personal knowledge of anything
contained in his memo to Wainwright. On its face, he appears to
be communicating information he was told by someone else,
presumably Inspector Griffis. Just who Griffis had talked to at
this point, however, can only be a matter of speculation. The
trial record shows that Sturgis had identified his assailants to
numerous persons, any one of whom could have been the source of
any information provided to Sewell by Griffis or anyone else.
(See TR 180, Addendum Report of Inspector Bill Beardsley; see
also pretrial depositions of Raulerson, Wilson, Beardsley and
Rhoden, attached to the State’s limited supplemental response).
5Thus, Sewell’s letter is inadmissible hearsay unless the hearsay
contained within the report itself comes within some exception
to the hearsay rule. Thomas v. State, 581 So.2d 993, 995 (Fla.
2d DCA 1991) (although police report may constitute business
record, hearsay statement contained within report must itself
fall within a hearsay exception to be admissible).
30
The only possible such exception raised by Demps is
impeachment, but he has been at best vague as to just how he
might use this report to impeach anyone. His most concrete
suggestion came during the May 12 hearing, when his counsel
stated:
So it might be that I would have to call
Sewell, Griffis, the officer that he talks
to, and Mr. Rhoden who is the officer that I
believe Mr. Griffis refers to in the report
and ask them the appropriate questions, in
going up the chain, and eventually we get to
Mr. Sewell and if I ask Mr. Sewell what’s
your testimony and he says – and I ask him
something like, well, didn’t you report to
Louie Wainwright that only one person was
called by Mr. Sturgis in his dying
declaration to be the assailant - to be his
assailant? No no no no I told him all
three. That document immediately becomes
admissible to show to Mr. Sewell.
(May 12 hearing, real time transcript at 27). In response to a
question by the court wondering how Griffis could be impeached
with this document when he did not testify at trial, Mr. Salmon
elaborated:
Mr. Rhoden is called to the stand and he’s
asked isn’t it true that you reported to Mr.
Griffis that only one person, James Jackson
was Mr. Sturgis’ assailant. No no no no I
told Mr. Griffis that all three people were
involved. Mr. Griffis gets up there on the
stand, isn’t it true that Mr. Rhoden told
you that just one person . . . was the
assailant of Mr. – no. No. No. No. Isn’t it
true that you told Mr. Sewell that there was
only one assailant, Mr. Jackson, of Mr.
6
Under no circumstances could the memo have been used toimpeach A.V. Rhoden directly. The memo was not written by him,
and there is no indication in the memo that Sewell had ever
talked to Rhoden. See Ehrhardt, Florida Evidence, 2000 Edition,
Section 614.1, pp 535-36 ("In order to prove the making of a
prior statement it is necessary to call a person who was present
when the statement was made to testify to what was said or
written ...").
31
Sturgis? No. No. No. I told him all three.
Last witness, Mr. Sewell, isn’t it true that
you reported to the secretary of the
Department of Corrections that only one
person was named in a dying declaration as
the assailant of Mr. Sturgis? No. No. No.
No. I told him all three.
The document is immediately admissible at
that point as it’s shown to Mr. Sewell to
refute his testimony.
(May 12 hearing, real time transcript at 51-52). Thus, by
Demps’ own theory, the document is admissible only to impeach
Sewell – a witness called by no one at trial, who was not at the
scene of the crime, and knew only what someone else had told him
about the crime.
Even if, tangentially, the Sewell memo could somehow have
been usable to impeach Ronnie Griffis
if he had testified attrial, he did not.
6 Therefore, Demps has not shown how it wouldbe admissible at all, except under some scenario where he called
Griffis himself just so he could impeach him. As the trial
court stated, "I can’t conceive of a circumstance under which
7
Mr. Salmon did state at the May 12 hearing that Rhoden’sdeposition shows that he was not even with Sturgis when he made
his dying declaration (May 12 hearing, real time transcript at
31). A review of Rhoden’s deposition testimony refutes this,
however.
32
Inspector Griffis would have been called to testify by either
side in this case." See Buenoano v. State, 708 So.2d 941 (Fla.
1998) (successive 3.850 summarily denied where evidence at most
could have been used to impeach person who never testified).
As for the argument made at the May 12 hearing that the memo
might have led to additional evidence, Demps has failed to
inform us whether Rhoden himself or Sewell, or Griffis, or any
other persons who may have made or heard any relevant statements
by anyone are available to testify. Nor do we have a clue as to
what their testimony might be if they were available to testify.
For example, we have no allegation that as a result of being
confronted with the Sewell memo, or for any other reason, A.V.
Rhoden would now testify differently than he did at trial.
7 Nordo we have any indication that any other witness would testify
favorably to the defense. Demps’ allegations here are based, at
best, "on tenuous speculation and as such do not constitute
newly discovered evidence." Davis v. State, 736 So.2d 1156,
1159 (Fla. 1999).
Even if the Sewell memo were admissible, it is not probable
that it would have resulted in a different verdict. To use the
33
memo, Demps’ trial counsel would have had to abandon the joint
defense with Mungin and Jackson, jettison the reasonably
plausible theory that Sturgis had been murdered by Arthur
Copeland, and present a defense that Jackson had acted alone.
Such a defense would have been supported only by what obviously
was a very preliminary report submitted by one who had no
personal knowledge of the events on trial. Further, any defense
that Sturgis had only identified one assailant and that the
State’s theory of three assailants was a subsequent concoction
could have been rebutted not only by A.V. Rhoden, but also by
several other witnesses, including Billy Raulerson, Hershel
Wilson and inmate W.T. Jackson, all of whom had heard Sturgis
identify Demps, Mungin and Jackson as his assailants, as trial
counsel well knew from pretrial depositions. Demps cannot
establish that this memo would have resulted in a different
verdict. Sims v. State, 25 Fla. L. Weekly S128 (Fla. February
16, 2000).
8
He did so in the context of raising a claim of error underHitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d
347 (1987); nevertheless, integral to his Hitchcock claim was
the contention that his death sentence was disproportionate to
the life sentences of his two codefendants.
34
ISSUE IV
THE ISSUE OF THE PROPORTIONALITY OF DEMPS’
DEATH SENTENCE IS PROCEDURALLY BARRED
The claim that the Sewell memo demonstrates the
disproportionality of Demps’ death sentence is procedurally
barred for two reasons. First, even accepting
arguendo Demps’claim that he could not have discovered the memo before July of
1998, he still did not raise this claim within a year of the
discovery of the memo. Mills v. State, supra. Second, it is
procedurally barred because the Florida Supreme Court determined
the issue of proportionality on direct appeal, and nothing in
Demps’ alleged newly-discovered evidence calls into question the
previous determination of the relative culpability of Demps
versus his codefendants.
In fact, not only did this Court conclude that Demps’ death
sentence was not disproportionate when it addressed this issue
on direct appeal, 395 So.2d at 506, but since that time Demps
has attempted without success to raise this issue both in state
and federal court.
8 Thus, in 1987, this Court stated:The defense also argued the three
codefendant’s sentences were disparate.
35
However, as we noted in the initial appeal,
only Demps "had the loathsome distinction of
having been previously convicted of the
first-degree murder of two persons and
attempted murder of another, escaping the
gallows only through the intervention of
Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972)" Demps, 395
So.2d at 506.
514 So.2d at 1093-94. Not only did this Court again reject
Demps’ argument that the sentences in this case were
"disparate," but this Court viewed the evidence in aggravation
as so strong that it would have supported a death sentence for
Demps even if the jury had recommended a life sentence. Id. at
1094. It would be difficult to imagine a stronger endorsement
of the death sentence.
Demps thereafter raised this issue in federal court. The
Eleventh Circuit Court of Appeals stated:
Finally, petitioner stresses that the two
co-perpetrators of the murder received a
life sentence while he alone was sentenced
to death. Petitioner claims that this
should be considered as mitigating.
Petitioner relies on the language of Downs
v. Dugger, 514 So.2d 1069 (Fla. 1987), where
the Florida Supreme Court stated that it
"has recognized as mitigating the fact that
an accomplice in the crime in question, who
was of equal or greater culpability,
received a lesser sentence than the
accused." Id. at 1072 (citations omitted).
However, in reviewing Demps’ sentence as
compared to that of his co-perpetrators, the
Florida Supreme Court also recognized that
"only Demps had the loathsome distinction of
having been previously convicted of the
36
first-degree murder of two persons and
attempted murder of another, escaping the
gallows only through the intervention of
Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972)." Demps v.
Dugger, 514 So.2d 1092, 1093 (Fla. 1987).
We conclude that Demps’ prior criminal
record was sufficient to justify imposing a
more serious penalty.
874 F.2d at 1384-85.
Although the identity of the "triggerman" is certainly
relevant to any evaluation of the relative culpability of
multiple codefendants, the death penalty may be "appropriate
even when the defendant is not the triggerman." Van Poyck v.
State, 564 So.2d 1066, 1070 (Fla. 1990), and even when it is
clear that a codefendant was the person who actually
administered the deadly blow. Larzalere v. State, 676 So.2d 394
(Fla. 1996). Just as statutory aggravating circumstances are
not limited to circumstances of the crime, but also include
factors extrinsic to the crime on trial, an evaluation of the
overall culpability of codefendants is not limited to the
circumstances of the crime, but includes all evidence in
aggravation, including aggravators such as the prior
violent/capital felony aggravator. Demps’ codefendants have
only committed one murder; Demps has committed three plus he
also has attempted a fourth murder. Thus, his overall
culpability is greater than that of his codefendants, as this
37
Court has consistently held every time it has considered this
issue.
Demps has presented nothing new regarding proportionality.
He does not contend that his "new" "evidence" shows that he is
less culpable than his codefendants; he contends that it shows
he is not culpable at all. In fact, it does neither, and he may
not at this late juncture argue the proportionality of his
sentence.
CONCLUSION
For all the foregoing reasons, the trial court’s summary
denial of Demps’ successive motion for postconviction relief
should be affirmed.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
_________________________
CURTIS M. FRENCH
Assistant Attorney General
Florida Bar No. 291692
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(904) 414-3300
COUNSEL FOR APPELLEE
Certificate of Service
38
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail/hand
delivery/facsimile to Mr. Bill Salmon, Esq., P.O. Box 1095,
Gainesville, Florida 32602-1095, this 18
th day of May, 2000._________________________
CURTIS M. FRENCH
Assistant Attorney General