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Post by CCADP on May 8, 2005 9:27:24 GMT -5
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC05-100
______________________________________________________
DERRICK TYRONE SMITH,
Petitioner,
v.
JAMES V. CROSBY, JR.,
Secretary, Florida Department of Corrections,
Respondent.
______________________________________________________
______________________________________________
PETITION FOR WRIT OF HABEAS CORPUS
______________________________________________
MARTIN J. MCCLAIN
Attorney At Law
Florida Bar No. 0754773
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
COUNSEL FOR PETITIONER
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
Page
1
INTRODUCTION
Citations to the direct appeal record of Mr. Smith’s
retrial shall be as “R2. [page number].” Citations to the
record of Mr. Smith’s Rule 3.850 proceedings will be as “PC-R.
[page number].” All other citations shall be selfexplanatory.
JURISDICTION
A writ of habeas corpus is an original proceeding in this
Court governed by Fla. R. App. P. 9.100. This Court has
original jurisdiction under Fla. R. App. P. 9.030(a)(3) and
Article V, § 3(b)(9), Fla. Const. The Constitution of the
State of Florida guarantees that "[t]he writ of habeas corpus
shall be grantable of right, freely and without cost." Art. I,
§ 13, Fla. Const.
REQUEST FOR ORAL ARGUMENT
Mr. Smith requests oral argument on this petition.
STATEMENT OF THE CASE
On May 24, 1983, Mr. Smith was charged by indictment with
one count of first-degree murder (R2. 1-2). In November of
1983, Mr. Smith was convicted of that charge and sentenced to
2
death (R2. 3-8). On direct appeal, this Court vacated Mr.
Smith’s conviction and ordered a new trial. Smith v. State,
492 So. 2d 1063 (Fla. 1986).
Mr. Smith’s retrial was held in 1990. The jury found Mr.
Smith guilty of first-degree murder (R2. 131), and after a
penalty phase, recommended a death sentence by a vote of eight
to four (R2. 1493). The court imposed a death sentence,
finding two aggravating circumstances: (1) the murder was
committed while Mr. Smith was attempting to commit a robbery;
(2) Mr. Smith had a previous conviction for a violent felony
(R2. 230-35). The court found one statutory mitigating
circumstance of no significant history of criminal activity
and several nonstatutory mitigating circumstances (Id.). On
direct appeal, this Court affirmed Mr. Smith’s conviction and
sentence. Smith v. State, 641 So. 2d 1319 (Fla. 1994).
Mr. Smith initiated proceedings under Rule 3.850, Fla. R.
Crim. P., and filed an Amended Motion to Vacate on September
18, 2000. After hearing oral arguments, the circuit court
issued an order on January 3, 2002, denying many of Mr.
Smith’s claims and granting a limited evidentiary hearing on
several claims and/or portions of claims. The evidentiary
hearing was conducted on July 23-26, 2002. Following the
evidentiary hearing, the parties submitted written closing
1The Initial Brief in that appeal provides a much more
detailed account of the proceedings in the circuit court
following the 1986 remand.
3
arguments. On February 10, 2003, the circuit court entered
its order denying Mr. Smith relief. Mr. Smith’s appeal of
that order is presently pending before this Court.1
STATEMENT OF THE FACTS
The facts relevant to Mr. Smith’s claims for habeas
corpus relief are set forth in the individual claims below.
GROUNDS FOR HABEAS CORPUS RELIEF
CLAIM I
THIS COURT’S DISPOSITION OF MR. SMITH’S
DIRECT APPEAL CLAIM REGARDING HIS REQUEST
FOR NEW TRIAL COUNSEL RESTS UPON AN ERROR
OF FACT, WHICH THIS COURT SHOULD NOW
CORRECT.
On direct appeal, Mr. Smith challenged the trial court’s
failure to conduct an adequate inquiry into Mr. Smith’s
request to discharge his trial counsel (Smith v. State, Fla.
Sup. Ct. #76,491, Initial Brief of Appellant, Issue I, pp. 28-
32). This Court addressed the issue as follows:
The first issue is whether the trial court violated
Smith’s constitutional right to effective assistance
of counsel . . . by failing to inquire into his
letter expressing dissatisfaction with courtappointed
counsel. Several months before trial
2The issue raised on direct appeal also included a
contention that the trial court should have advised Mr. Smith
4
Richard Sanders, Smith’s court-appointed counsel,
moved to withdraw because Smith wanted to present
testimony that Sanders believed was false.[] After a
hearing, the trial court denied the motion. Neither
the trial judge nor Sanders questioned Smith at the
hearing, and Smith did not address the court.
On the same day the hearing concluded, however,
Smith wrote the trial judge and asked her to
“reconsider your decision to deny [Sanders’] motion
to withdraw.” Smith questioned Sanders’ lack of
experience in first-degree murder cases and wrote,
“I don’t want Richard Sanders representing me on
this particular case.” The trial judge responded by
letter and told Smith that any communication with
the court must be through his attorney. The record
reflects that the trial judge communicated with
Smith during the trial, but Smith never raised this
issue again. Thus, Sanders continued to represent
Smith.
Nonetheless, Smith claims the trial court committed
reversible error by not conducting a hearing to
determine whether there was reasonable cause to
believe that Sanders was not rendering effective
counsel and, if not, appointing a substitute. . . .
This claim is without merit.
. . . . [W]e find the trial court was not required
to conduct a hearing on Sanders’ representation.
Although Smith’s letter raises concerns about
Sanders, the letter was, in effect, a motion for
rehearing. A trial court must conduct an inquiry
only if a defendant questions an attorney’s
competence. Hardwick v. State, 521 So. 2d 1071,
1074-75 (Fla. [1988]). . . . Smith expressed
dissatisfaction with Sanders, but did not question
his competence.
Smith v. State, 641 So. 2d 1319, 1321 (Fla. 1994) (footnote
omitted).2 This Court’s conclusion that Mr. Smith did not
of his right to self-representation. That contention is not
involved in this claim.
5
question Mr. Sanders’ competence was an error of fact.
The hearing described in the Court’s opinion occurred on
November 6, 1989 (R2. 351). The letter referenced in the
Court’s opinion is also dated November 6, 1989 (R2. 92).
However, this is not the only letter which Mr. Smith wrote to
the trial court regarding Mr. Sanders, as is evident from the
November 6, 1989, letter itself. That letter states: “I wrote
to you in March of this year explaining my discomfort with
Richard Sanders representing me, that uneasiness has only
greatened” (R2. 92).
Unfortunately, Mr. Smith’s previous letter was misfiled
by the circuit court clerk and is not contained in the record
of his first-degree murder trial. During post-conviction, Mr.
Smith’s counsel discovered the earlier letter in the record of
another case which was pending against Mr. Smith in the same
time period as the first-degree murder case. The letter is
dated March 23, 1989, but its content makes clear that
although Mr. Smith may have begun writing the letter on that
date, he did not finish and mail the letter until May 1989
(Smith v. State, 2nd DCA #90-3188, Record On Appeal, page 11).
The index to the record in the Second DCA case indicates that
3The judge in the other case was Mark R. McGarry, Jr.
(Id.).
6
the letter was filed on May 30, 1989 (Id.). The letter is to
Judge Luten, the judge in the first-degree murder case (Id.).3
The letter states:
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Dear Judge Luten,
I’m in despair over the events that are
occurring in my case which is a capital offense on
re-trial. The situation has me so distaught [sic]
that I’m using my last resort in writing to you, the
presiding judge, with the elated hope that your
intervention will get those involved to realize that
a life is at stake and the situation is very
SERIOUS! Ma’am I’m not highly educated neither do I
profess a profound knowledge of law’s intricate
workings. But I do have common sense and I know
that something isn’t quite right with the way my
present attorney, Mr. Richard Sanders, is handling
my defense. Personally, he’s one of the best human
beings I’ve ever encountered and will probably
evolve into a splendid attorney but it bothers me
that he’s “cutting his teeth” on my case. By his
admission he has not previously handled a murder
case.
Ma’am I’m scheduled to go to trial July 11, 1989
for my life. That’s less than 2 months from now and
I’m 300 miles plus away from those that are
representing me. On or about March 15, 1989 my aunt
contacted Mr. Sanders inquiring as to the lack of
communication between us. I myself contacted Mr.
Sanders by way of mail requesting that a motion be
filed for a court order getting me transported to
Pinellas County. Mr. Sanders visited me here at the
prison on April 3, 1989 and assured me that he’d
have me back in Pinellas as soon as possible. That
was almost 2 months ago and I’ve still heard
nothing. I wrote to Mr. Sanders again on May 14,
1989 to no avail. By not being able to communicate
with my lawyer is in violation of the due process
7
clause in the Constitution. And any attorney who
can’t even get me back to the county jail can hardly
represent me in a capital case. My correspondence
goes unanswered and the state prison doesn’t allow
phone calls. This isn’t the effective assistance of
counsel the law entitles me to.
Judge Luten, I don’t mean to sound obnoxious and
I certainly am not intentionally insulted anyone but
anyone who accepts a capital case for a measely
[sic] 3 or 4 thousand dollars (which is peanuts for
a lawyer[)] isn’t highly skilled nor very
experienced if not both. I don’t feel Mr. Sanders
is being very diligently [sic] in matters concerning
my case which is in essence my life. Economically I
don’t and can’t fault Mr. Sanders for not giving his
all in all in such a time consuming, tiresome,
complicated capital case such as mine but I’ve been
given the ultimate sentence once already for this
same case and without adequate legal aid I’ll be in
the same position again. Thus I can not consciously
just accept any kind of 2 dollar lawyer without
voicing my objection. I was 20 years old when this
nightmare first began, totally ignorant of law and
too terrified to say anything, it almost cost me my
life. I’m a little older and wiser now and being
blunt, I refuse to be lead to slaughter like some
meek little lamb. This letter is an objection to
the representation I’ve had thus far in my legal
battle. Incompetent legal aid isn’t something I can
accept, my very life is at stake. Thank you for
your time and consideration!
Sincerely,
[signed]
Derrick Tyrone
Smith
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Id. At 11-12) (Attachment A).
Through no fault of Mr. Smith, this letter was not filed
in the record of his capital case. The letter was addressed
8
to Judge Luten, the judge in the first-degree murder case, and
its first sentence referred to “my case which is a capital
offense on re-trial.” At the top of the letter, next to Mr.
Smith’s notation of the date, a handwriting which is not Mr.
Smith’s wrote the case number of the non-capital case and then
wrote, “To the Court, file[,] copy to R. Sanders” (Attachment
A).
Mr. Smith’s March 1989 letter clearly shows that Mr.
Smith questioned his trial counsel’s competence. This Court
has explained the procedure a circuit court should follow when
a criminal defendant questions his trial counsel’s competence:
Appellant also argues that his right to counsel was
impaired by the incompetence of his court-appointed
attorney. In this instance, the request was made
before trial began and renewed by Hardwick during
the trial. On this question, we approve the
procedure adopted by the Fourth District:
If incompetency of counsel is assigned by the
defendant as the reason, or a reason, the trial
judge should make a sufficient inquiry of the
defendant and his appointed counsel to determine
whether or not there is reasonable cause to
believe that the court appointed counsel is not
rendering effective assistance to the defendant.
If reasonable cause for such belief appears, the
court should make a finding to that effect on
the record and appoint a substitute attorney who
should be allowed adequate time to prepare the
defense. If no reasonable basis appears for a
finding of ineffective representation, the trial
court should so state on the record and advise
the defendant that if he discharges his original
counsel the State may not thereafter be required
to appoint a substitute.
9
Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th
DCA 1973) (citation omitted). In the present case,
we find no error. The trial court made a proper
inquiry, allowed the defendant to state his reasons
for asserting his claims, and specifically found
that defense counsel was competent as to those
reasons. Since nothing in the record otherwise
establishes defense counsel’s incompetence as
alleged by Hardwick in his motion, we therefore may
not disturb the trial court’s finding.
Hardwick v. State, 521 So. 2d 1071, 1074-75 (Fla. 1988). See
also Jones v. State, 612 So. 2d 1370, 1372-73 (Fla. 1992);
Bowden v. State, 588 So. 2d 225, 229-30 (Fla. 1991).
In Mr. Smith’s case, the trial court did not follow the
procedure approved in Hardwick. The court made no inquiry of
Mr. Smith regarding his complaints about trial counsel and did
not “determine whether or not there is reasonable cause to
believe that the court appointed counsel is not rendering
effective assistance to the defendant.” Mr. Smith
specifically alleged that he was receiving ineffective
assistance of counsel: “This letter is an objection to the
representation I’ve had thus far in my legal battle.” Mr.
Smith raised specific complaints regarding counsel’s
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performance, complaining of a lack of communication with
counsel, counsel’s failure to have Mr. Smith brought to
Pinellas County, counsel’s failure to answer letters and
counsel’s lack of diligence. A Hardwick inquiry was clearly
warranted based upon Mr. Smith’s complaints.
10
Because the March 1989 letter was not filed in the record
of Mr. Smith’s first-degree murder case, this Court relied
upon erroneous facts in deciding Mr. Smith’s direct appeal
claim. This Court should now correct this factual error.
This Court has habeas corpus jurisdiction to correct failings
in its review process. Article V, §§ 3(b)(1), (7) & (9),
Florida Constitution; Parker v. State, 643 So. 2d 1032, 1033
(Fla. 1994).
To the extent the Court believes this issue was not
adequately presented on direct appeal, appellate counsel’s
performance was deficient, and Mr. Smith was prejudiced.
Appellate counsel has the responsibility of ensuring that the
record is complete. As this Court has stated, "our judicially
neutral review of so many death cases, many with records
running to the thousands of pages, is no substitute for the
careful, partisan scrutiny of a zealous advocate." Wilson v.
Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985). Appellate
counsel recognized the significant issue raised by trial
counsel’s motion to withdraw because appellate counsel
presented the issue. Mr. Smith’s November 1989 letter
referred to the March 1989 letter, but appellate counsel made
no effort to locate that letter. There can be no strategic
reason for the deficiencies in counsel’s presentation. Mr.
11
Smith was prejudiced by these deficiencies: the issue is
clearly meritorious, and counsel’s inadequate presentation
therefore undermines confidence in the outcome of Mr. Smith’s
direct appeal. Wilson, 474 So. 2d at 1165.
CLAIM II
DURING THE DIRECT APPEAL, THE STATE OF
FLORIDA FAILED TO DISCLOSE PERTINENT FACTS
WHICH WERE NECESSARY TO THIS COURT’S
CONSIDERATION OF THE ISSUES RAISED BY MR.
SMITH, AND AS A RESULT, THE DIRECT APPEAL
DID NOT COMPORT WITH THE SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS.
A. INTRODUCTION.
The State of Florida having given Mr. Smith a state law
right to a direct appeal was obligated to afford Mr. Smith
with an appeal that comported with due process and provided
Mr. Smith with a fair opportunity to vindicate his
constitutional rights. Hewitt v. Helms, 459 U.S. 460 (1983).
As the United States Supreme Court has held: “A first appeal
as of right [] is not adjudicated in accord with due process
of law if the appellant does not have the effective assistance
of an attorney.” Evitts v. Lucey, 469 U.S. 387, 396 (1985).
Certainly, the same principle applies when the State withholds
pertinent and exculpatory information regarding the factual
circumstances underlying the issues raised in the appeal.
12
The United States Supreme Court has recognized that a
prosecutor is:
the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its
obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88 (1935). As a result,
the United States Supreme Court has forbidden “the prosecution
to engage in ‘a deliberate deception of court and jury.’” Gray
v. Netherland, 518 U.S. 152, 165 (1996), quoting Mooney v.
Holohan, 294 U.S. 103, 112 (1935). That principle applies
even on appeal. “Truth is critical in the operation of our
judicial system and we find such affirmative
misrepresentations by any attorney, but especially one who
represents the State of Florida, to be disturbing.” The
Florida Bar v. Feinberg, 760 So.2d 933, 939 (Fla. 2000).
B. DIRECT APPEAL CHALLENGES TO MR. SMITH’S CONVICTION.
1. Richardson violation.
In his second argument during the direct appeal, Mr.
Smith alleged that the trial court erred in failing to conduct
an adequate inquiry pursuant to Richardson v. State, 246 So.
2d 771 (Fla. 1971). Specifically, Mr. Smith argued that a
discovery violation occurred when the State failed to disclose
13
felony judgments for Larry Martin, a defense witness, that the
State intended to use.
This Court denied the claim saying that “the defense has
the initial burden of trying to discover impeachment evidence,
and the state is not required to prepare the defense’s case.”<br> Smith v. State, 641 So. 2d at 1322, quoting Medina v. State,
466 So. 2d 1046, 1049 (Fla. 1985). However, the United States
Supreme Court has since specifically rejected such a
contention. “When police or prosecutors conceal significant
exculpatory or impeaching material in the State’s possession,
it is ordinarily incumbent on the State to set the record
straight.” Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004).
Thus, a rule “declaring ‘prosecutor may hide, defendant must
seek,’ is not tenable in a system constitutionally bound to
accord defendants due process.” Id. at 1275.
Moreover at the time of the direct appeal, the State was
still sitting upon much more undisclosed evidence that was
favorable to Mr. Smith. As explained in much more detail in
Mr. Smith’s appeal from the denial of 3.850 relief, the State
had not disclosed that: 1) Melvin Jones had met with Derrick
Johnson on July 11, 1983, and promised to help him at trial,
contrary to the testimony of both Jones and Johnson; 2) Melvin
Jones was an original suspect in the homicide; 3) police
14
visited the Jones’ residence on two occasions during
neighborhood canvassing, not once as Melvin and Mellow Jones
had testified; 4) Melvin Jones had received a suspended
sentence on his seventeen pending felonies after he came
forward and gave evidence against Mr. Smith, contrary to his
testimony that he served three years and didn’t receive much
of a deal; 5) at the time of Mr. Smith’s retrial, Melvin Jones
was afraid that he was going to be arrested on charges of
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sexually abusing his step-daughter; 6)David McGruder had been
unable to identify a photograph of Derrick Smith as one of the
two men that he saw get into a cab, contrary to his trial
testimony; and, 7) McGruder’s estimate of the weight of the
individual (purported to be Mr. Smith) was 30 to 70 pounds
less than Mr. Smith’s weight. Without being apprised by the
State of the significant favorable evidence that was still be
withheld, this Court could not properly analyze, Mr. Smith’s
Richardson claim.
In essence, the State has been rewarded for its
misconduct. The State kept from this Court the true scope of
the discovery violations when Mr. Smith raised the matter.
Had this Court known the true scope of the problem during Mr.
Smith’s direct appeal, a new trial would have been required.
2. Evidence of other robbery.
4The distinction between evidence of “propensity to commit
an armed robbery” and an “inten[tion] to commit a robbery”<br> seems exceedingly thin. It is like saying: the evidence of
one robbery is not offered to prove a second robbery, but the
motive in committing the one robbery shows a motive to commit
another robbery. If this is the law, when would evidence of
one robbery not be admissible to prove a second robbery?
15
Mr. Smith raised on direct appeal before this Court the
State’s introduction of an unrelated robbery allegedly
committed by Mr. Smith about twelve hours after the Songer
homicide. The State called as a witness a Canadian tourist
who was robbed at gunpoint in a motel room in St. Petersburg
at noon on March 21, 1983. The Canadian tourist identified
Mr. Smith as the sole robber. The description of the gun used
in the robbery was similar to the one described by Melvin
Jones.
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Despite the dissimilarities between the Songer homicide
and the robbery of the Canadian tourists, the State argued
that evidence of the latter was admissible at the murder trial
“to show that appellant intended to commit a robbery and,
during a relatively short span, managed to accomplish his
task.” (Brief of Appellee, Case No. 76, 491, at 19).
According to the State, this was not “merely to show
appellant’s propensity to commit an armed robbery.” (Id.).4
This Court accepted the State’s argument saying that the
evidence was “relevant in proving Smith’s motive to obtain
5Jones was arrested on unrelated charges on June 13, 1983,
nearly three months after the shooting of Mr. Songer, the cab
driver. Jones faced seventeen felony charges (R2. 998). Four
days later, he met with the State to bargain for a deal in
exchange for his testimony against Mr. Smith. At the meeting,
Jones gave what he later claimed was a false account of what
he had said he witnessed at Fairfield and 30th St. the night
Mr. Songer was shot. Weeks after the June 17th meeting, Jones
wrote an undated letter to the attention of Tom Hogan at the
State Attorney’s Office, giving a new account that was now
generally consistent with Johnson’s version of the shooting.
Included with this letter was a map of the crime scene.
Following his testimony against Mr. Smith in 1983, Jones
was sentenced in his pending cases to concurrent three-year
suspended sentences followed by two years probation (D-Ex. 16,
12/1/83 Sentence). However, Mr. Smith’s jury never learned
that Jones had received a suspended three-year sentence.
Instead, the prosecutor represented and Jones testified that
he received three years incarceration after testifying against
16
money and to proving that he possessed the same gun in both
offenses.” 641 So. 2d at 1322.
This Court in denying Mr. Smith’s appeal did not know
because the State withheld the fact that Jones’ testimony
regarding the description of the gun used to shoot the cab
driver resulted after a meeting between Jones and Johnson in
which Jones promised to help Johnson at the trial. The State
withheld critical information from this Court in the course of
the direct appeal which would have led to a reversal and a
remand for a new trial.
3. Limitation of cross-examination of Jones.
In his direct appeal, Mr. Smith challenged the trial
court’s limitation of his cross-examination of Melvin Jones.5
Mr. Smith and against Clinton Jackson.
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In his initial brief, Mr. Smith argued:
On cross-examination, Jones testified that after
his arrest on the outstanding warrants, he wrote a
letter to the State Attorney’s Office and the Public
Defender telling them what he had seen. (R991-992)
Jones denied that the purpose of the letter was to
“cut a deal” for himself. His purpose was to inform
the State Attorney and Public Defender “who actually
done it.” He was not expecting any personal
benefit. (R992) Jones denied that he tried to
bargain with the State for a reduction in his own
sentence in return for his testimony. (R992-993)
Yet Jones admitted that he was facing 17 to 18
felony charges for which he “did” only three years.
(R998) When defense counsel attempted to ask how
much time he actually served, the court sustained
the State’s objection. Jones then admitted that the
prosecutor testified on his behalf at sentencing,
but he persisted in denying that he got a break on
his sentence. (R1000)
Defense counsel next asked whether Jones had
testified for the State in another murder case.
(R1000) When the prosecutor object, defense counsel
explained that Jones had in fact testified as an
important State witness in another murder case about
a year later and that he had more pending charges at
that time. Counsel argued that this information was
relevant to Jones’ credibility. (R1000-1001) The
prosecutor responded, “Your Honor, he was sentenced
after he testified in Smith and Clinton Jackson. So
whatever deal he got was based on both.” (R1001)
This constituted an admission by the State that
Jones had in fact received some sort of deal in
exchange for his testimony against Appellant at his
original trial and for his testimony against Clinton
Jackson in another murder trial. Yet the court
refused to permit defense counsel’s inquiry and
directed him to proffer the testimony (R1001)
Defense counsel resumed his cross-examination of
Jones before the jury and elicited his admission
that he told Det. San Marco an inaccurate account of
what he had seen when Songer was shot. (R1002-1004)
18
This occurred after he tried to make a deal with San
Marco, but the only thing he was offered was to
serve his sentence in a prison for convicted police
officers (R1003-1005)
On redirect examination, the prosecutor elicited
Jones’ testimony that he wrote the letter to the
State Attorney because he had heard a rumor that
Appellant was trying to put all the blame on
Johnson, and he thought that was “totally wrong.”<br> (R1008) Thus, the prosecutor not only failed to
reveal the specifics of Jones’ deal with the State,
he deliberately reinforced Jones’ claim that he was
motivated to testify by his own sense of justice and
fair play rather than by any deals he made for a
reduced sentence.
Defense counsel later proffered Jones’ testimony
about his role as a witness in the other murder
case. In that proffer, Jones testified that in 1984
he was a State witness in the trial of Clinton
Jackson for the robbery and murder of the owner of a
hardware store. Jones and Jackson were working
together when Jackson told him he was going to rob
the store. Jones also saw Jackson going toward the
store and then coming away from it at the time of
the shooting. (R1053-1056) Jones claimed he could
not remember whether he had any charges or
violations of probation pending when he testified
against Jackson, but he agreed that it was possible.
(R1056) After Jackson’s conviction was reversed on
appeal, Jones refused to respond to a subpoena to
testify at Jackson’s retrial in 1987. (R1057) Jones
claimed that he did not know whether there were any
pending charges or warrants against him at that
time. (R1057-1058)
Defense counsel argued that this testimony was
relevant to Jones’ credibility and his claim that he
did not expect any benefit from testifying against
Appellant. (R1058-1059) The prosecutor responded
that no promises had been made to Jones for his
testimony at Appellant’s retrial and that Jones had
already testified that he got a deal or a break
after Appellant’s first trial: “He’s gotten out the
point that is appropriate. He got a deal for his
testimony and that’s before the jury.” (R1060) The
court did not allow defense counsel to present the
proffered testimony to the jury. (R1061)
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the prosecutor’s admissions that Jones
had in fact received a deal for his testimony, he
never revealed the specific terms of the deal.
Instead, he did his best to prevent the jury from
learning about Jones’ past dealings with the State
and to bolster Jones’ claim that he was motivated by
a desire to reveal the truth in Appellant’s case
without regard to any personal benefit. The
prosecutor’s conduct in this case came perilously
close to the knowing use or concealment of perjured
testimony condemned in Napue v. Illinois, 360 U.S.
264, 268, 79 S.Ct. 1173, 3 L.Ed.2d 1217, 1221
(1959); and Alcorta v. Texas, 355 U.S. 23, 31-32, 78
S.Ct. 103, 2 L.Ed.2d 9, 11-12 (1957).
(Initial Brief of Appellant, Case No. 76,491, at 43-46.
In the State’s answer brief, the State asserted:
The gist of appellant’s complaint revolves
around the incorrect notion that defense counsel was
unable to adequately cross examine Melvin Jones
concerning the “deal” he had with the state vis-avis
his testimony in the instant case. * * * Thus,
the record reveals that the only “deal” which Mr.
Jones obtained that the state attorney was to speak
in his behalf at his sentencing subsequent to the
testimony rendered in the first Derrick Tyrone Smith
case. Indeed, the record reflects that no “deal”<br> was given to Melvin Jones for his testimony at the
trial which is the subject of the instant appeal,
and he would not appear without benefit of a
subpoena (R 1060).
In the instant case, the record reveals the
“deal” and there is simply no evidence to show that
any other “deal” existed. Appellant on appeal is
merely speculating that there must have been some
other “deal” which simply has not been revealed.
Yet, the record reflects no attempt to obtain
disclosure of that deal because, indeed, defense
counsel was well aware of the facts surrounding the
testimony of Melvin Jones. The record also reveals
that although the state attorney spoke in his
behalf, Melvin Jones did not believe that he got a
deal. Thus, from the witness’ perspective, he was
undoubtedly disappointed at the result of his
6The State engaged in obvious wordplay in its use of the
word “deal” throughout its argument. The Sixth Amendment
right of cross-examination extends well beyond inquiry into
“deals” a witness may have with the State. In Davis v.
Alaska, 415 U.S. 308 (1974), a case Mr. Smith relied upon in
making his argument (Initial Brief at 41, 46, 48) the Supreme
Court explained that a criminal defendant had a right to
cross-examine a witness called by the State regarding any
matter that went towards either the witness’s motive or bias
20
sentencing, but this in no way indicates that any
further consideration was given to Mr. Jones in
exchange for his testimony.
* * *
Nor is the fact that the trial judge prevented
cross examination concerning Melvin Jones’ testimony
in the Clinton Lamar Jackson case cause for reversal
of the instant conviction. Defense counsel was
attempting to engage in a “fishing expedition”<br> merely because Melvin Jones happened to offer
testimony in another capital case. During the
proffered examination, defense counsel questioned
Mr. Jones on facts of which defense counsel was
certainly aware (Mr. Sanders did the appeal for
Clinton Jackson; R 1059) and Melvin Jones was an
eyewitness in that case. As the prosecutor noted in
the instant case, Melvin Jones was sentenced after
his testimony in both the first Smith and the
Clarence [sic] Jackson trial and the state attorney
did, in fact, appear on behalf of Mr. Jones. This
is the only “deal” which was made and it was
presented for the jury’s consideration with respect
to the credibility of Melvin Jones. Appellate
reversal cannot be predicated upon speculation of a
more inclusive deal where there is no evidence to
indicate that one ever existed. [Citation].
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Post by CCADP on May 8, 2005 9:50:47 GMT -5
Your appellee respectfully submits that the
facts as adduced at trial do not support appellant’s
claim. The “deal” received by Melvin Jones was
heard by the jury and they were able to adequately
evaluate the credibility of the witness.
(Answer Brief of Appellee, Case No. 76,491, 20-23)(emphasis
added).6
in testifying for the State. This included matters
demonstrating a reason to curry favor with the State. Davis
was not limited to cross-examination regarding proven “deals.”<br> Thus, the presence or absence of a specific “deal” is
irrelevant to whether the Sixth Amendment right was
erroneously infringed upon. The issue raised by Mr. Smith in
his direct appeal was whether the limitation of his right
confront Melvin Jones precluded exploration of possible
biases, prejudices, or ulterior motives.
7“When police or prosecutors conceal significant
exculpatory or impeaching material in the State’s possession,
it is ordinarily incumbent on the State to set the record
straight.” Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004). A
rule “declaring ‘prosecutor may hide, defendant must seek,’ is
not tenable in a system constitutionally bound to accord
defendants due process.” Id. at 1275.
8Following his testimony against Mr. Smith in 1983, Jones
was sentenced in his pending cases to concurrent three-year
suspended sentences followed by two years probation (D-Ex. 16,
21
In this argument, the State presented to this Court a
number falsehoods as fact and deceived this Court. First, the
State incongruously argued both that Mr. Smith’s counsel made
“no attempt to obtain disclosure of that deal” and that Mr.
Smith’s counsel “was attempting to engage in a ‘fishing
expedition.’” However, the burden is upon the State to
affirmatively disclose evidence in its possession which could
be used to impeach a State’s witness; the burden is not upon
the defense to find that which the State has hidden.7 Second,
the State falsely asserted, “Melvin Jones was sentenced after
his testimony in both the first Smith and the Clarence [sic]
Jackson trial.”8 In fact as evidence introduced during the
12/1/83 Sentence). On January 17, 1984, Jones was not in
custody and claimed to have witnessed Clinton and Nathaniel
Jackson on their way to rob a hardware store. Jackson v.
State, 575 So. 2d 181 (Fla. 1991). By December 19, 1984,
Jones was back in custody in the same case numbers seeking a
bond reduction (D-Ex. 16, 12/19/84 Motion for Bond Reduction).
His bond was revoked and he was arrested on a capias on April
23, 1985 (D-Ex. 16). On August 25, 1985, Jones was sentenced
to three years of incarceration followed by two years of
probation (D-Ex. 16, 8/25/85 Order).
In his 1990 testimony, Jones was asked during cross how
much time he got on all the seventeen felony charges he was
facing in 1983. Jones replied, “I did three years” (R2. 998).
When defense counsel tried to pursue the matter the State
objected. At side bar, counsel explained, “I think it’s a
reasonable inference that can be drawn from the evidence that
he’s facing seventeen or eighteen years and he only gets three
years that he did, in fact, get a break in exchange for his
testimony (R2. 999). The prosecutor, Martin, responded,
“after the Smith trial he has got four and a half to five and
a half, and he was sentenced to three plus two, one below the
guidelines” (R2. 999). The judge then permitted additional
questioning. Jones then was asked “you did, in fact, get a
break on your sentence”, and he replied, “I don’t think so,
but you can say so” (R2. 1000).
However, defense counsel was precluded from asking Jones
about testifying for the State as an eyewitness in the murder
case against Clinton Jackson in 1984. The prosecutor, Martin,
argued that “he was sentenced after he testified in Smith and
Clinton Jackson. So whatever deal he got was based on both”<br> (R2. 1001).
9It was only because he had been given a suspended
sentence and released from custody that Jones could claim that
in January of 1984 he was at work with Clinton Jackson and was
told of Jackson’s plan to commit a robbery.
22
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Post by CCADP on May 8, 2005 9:51:03 GMT -5
3.850 hearing demonstrates, Melvin Jones was sentenced after
he testified against Mr. Smith - he was given a suspended
sentence and released from incarceration.9 Third, the State
deceptively argued to this Court that Jones received “no deal”<br> 23
other than that the prosecutor would testify at the sentencing
that occurred after his testimony against Jackson. This
deceived this Court in regards to Jones’ suspended sentence in
December of 1983 after his testimony at Mr. Smith’s first
trial, and as to Jones’ fear expressed to the State in 1989
that he was going to be arrested on sexual abuse charges
arising from allegations made by his step-daughter.
This Court accepted the State’s false representations and
concluded:
It is clear from the proffer that testimony about
the Jackson trial was not relevant to Smith's trial.
The trial court correctly sustained objection to the
testimony. The record also clearly reflects that
defense counsel had adequate opportunity and did
cross-examine Jones about any negotiations with the
State as to his testimony in Smith's trial
Smith v. State, 641 So. 2d at 1322. However, the State’s
deception prejudiced Mr. Smith’s right to a full and fair
direct appeal before this Court. Had the true facts been
revealed by the State and been known to this Court,
undoubtedly this Court would have recognized the merits of Mr.
Smith’s argument. The limitation on Mr. Smith’s ability to
cross-examine Melvin Jones precluded the defense from
discovering, the jury from knowing and this Court from
understnading that Jones’ testimony and the prosecutor’s
representations were false as to the sentence Jones received
24
in December of 1983 after his testimony against Mr. Smith.
Had Mr. Smith been permitted to fully cross-examine
Melvin Jones perhaps he would have had a chance to discover
the State’s deception. Exploring Jones’ testimony against
Clinton Jackson would have forced Jones to acknowledged that
in January of 1984 he had been released from jail because he
had received a suspended sentence on his 17 pending felony
charges after he testified against Mr. Smith. The State was
aware of the sentence Jones had received and when he had
received it. But, the prosecutor in circuit court and the
assistant attorney general before this Court affirmatively
misled the defense, the courts, and the jury regarding Jones’<br> suspended sentence. It just simply disappeared; according to
the State, it did not happen - Jones was not sentenced until
after his testimony against Clinton Jackson.
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Post by CCADP on May 8, 2005 9:51:19 GMT -5
Similarly, the limitation of cross-examination and the
State’s deception precluded the jury from learning of Jones’<br> fear that he was going to be charged with sexual abuse. Such
a fear is precisely the kind of motivator (the need to curry
favor with the State) that a criminal defendant is entitled to
explore in cross-examination. Davis v. Alaska. Only by
deceiving this Court during the direct appeal did the State
preclude this Court from recognizing the merit to Mr. Smith’s
25
Sixth Amendment challenge to the limitations upon his ability
to cross-examine Melvin Jones.
C. CONCLUSION.
This Court has stated, “Truth is critical in the
operation of our judicial system and we find such affirmative
misrepresentations by any attorney, but especially one who
represents the State of Florida, to be disturbing.” The
Florida Bar v. Feinberg, 760 So.2d 933, 939 (Fla. 2000).
Here, the State affirmatively misrepresented the record. As a
result, this Court was deceived regarding matters necessary to
resolution of the issues raised by Mr. Smith. This Court was
unaware of the scope of the discovery violations which
addressing Mr. Smith’s Richardson claim. This Court was
precluded from knowing what could have been discovered in the
course of cross-examination that would have constituted
impeachment of Melvin Jones - revealing his reasons for
currying favor with the State and his deception in his answers
regarding his sentencing in December of 1983.
This Court has recognized that this Court’s independent
review of the record in a capital appeal cannot be considered
a cure to counsel’s failure to perform their duties in
preparing briefs and arguing before this Court. Wilson v.
Wainwright, 474 So.2d 1162, 1165 (Fla. 1985)(“However, we will
26
be the first to agree that our judicially neutral of so many
death cases, many with records running to the thousands of
pages, is no substitute for the careful, partisan scrutiny of
a zealous advocate.”). Similarly, this Court’s review in the
course of a direct appeal cannot reach the correct result when
this Court is deceived by the State.
As a result of the State’s deception of this Court
regarding the issues raised by Mr. Smith in his direct appeal,
he was deprived of due process. Had this Court been made
aware of the facts withheld by the State, Mr. Smith’s
conviction and sentence of death would have been reversed and
a new trial ordered.
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Post by CCADP on May 8, 2005 9:51:34 GMT -5
CLAIM III
APPELLATE COUNSEL FAILED TO RAISE ON APPEAL
NUMEROUS MERITORIOUS ISSUES WHICH WARRANT
REVERSAL OF MR. SMITH’S CONVICTION AND
SENTENCE OF DEATH.
Mr. Smith had the constitutional right to the effective
assistance of counsel for purposes of presenting his direct
appeal to this Court. Strickland v. Washington, 466 U.S. 668
(1984). “A first appeal as of right [] is not adjudicated in
accord with due process of law if the appellant does not have
the effective assistance of an attorney.” Evitts v. Lucey,
469 U.S. 387, 396 (1985). The Strickland test applies equally
27
to ineffectiveness allegations of trial counsel and appellate
counsel. See Orazio v. Dugger, 876 F.2d 1508 (11th Cir.
1989).
Numerous constitutional deprivations which occurred at
trial were not raised in Mr. Smith’s direct appeal. Because
these constitutional violations were “obvious on the record”<br> and “leaped out upon even a casual reading of transcript,” it
cannot be said that the “adversarial testing process worked in
[Mr. Smith’s] direct appeal.” Matire v. Wainwright, 811 F.2d
1430, 1438 (11th Cir. 1987). The lack of appellate advocacy
on Mr. Smith’s behalf is identical to the lack of advocacy
present in other cases in which this Court has granted habeas
corpus relief. Wilson v. Wainwright, 474 So.2d 1162 (Fla.
1985). Appellate counsel’s failure to present the meritorious
issues discussed in this petition demonstrates that his
representation of Mr. Smith involved “serious and substantial
deficiencies.” Fitzpatrick v. Wainwright, 490 So.2d 938, 940
(Fla. 1986). Individually and “cumulatively,” Barclay v.
Wainwright, 444 So.2d 956, 959 (Fla. 1984), the claims omitted
by appellate counsel establish that “confidence in the
correctness and fairness of the result has been undermined.”<br> Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla. 1985)
(emphasis in original). In light of the serious reversible
28
errors which appellate counsel never raised, there is more
than a reasonable probability that the outcome of the appeal
would have been different, and a new direct appeal must be
ordered.
A. PRESENTATION OF UNRELIABLE SCIENTIFIC EVIDENCE
In its attempts to link Mr. Smith to a gun, the State
presented testimony from three FBI experts. Defense counsel
objected to this testimony, challenging the experts’<br> qualifications, the reliability of their testing and
instruments, and the acceptance of the testing within the
scientific community. Despite these numerous objections,
appellate counsel raised no issue regarding the FBI experts’<br> testimony, depriving Mr. Smith of the effective assistance of
direct appeal counsel.
The first of these witnesses was Robert Sibert, an FBI
expert on firearms identification. Sibert testified that if
bullets were placed in the pocket of someone’s clothing, lead
from the bullets could rub off on the clothing and later be
detected (R2. 935). Sibert testified that he had conducted
chemical tests on the pockets of Mr. Smith’s jeans to
determine whether lead was present on the jeans(R2. 935-36).
When the State asked Sibert to explain the results of
these tests, defense counsel objected: “[H]e’s been qualified
29
as a firearms identification expert. There’s been no showing
he’s a chemist, no showing he’s qualified to perform these
tests. There’s been no showing these tests are reliable to
measure what it is he’s supposed to be measuring” (R2. 936).
The State argued, “[W]hen he was initially tendered as an
expert, he explained the firearm identification, including
other things, to determine the presence of lead gunpowder
dealing with components qualifications” (R2. 936). The court
overruled the objection and allowed the defense a continuing
objection to the testimony (R2. 936).
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Post by CCADP on May 8, 2005 9:52:00 GMT -5
Sibert then testified that the test he performed on Mr. Smith’s jeans was accepted as reliable in the scientific community and that he was trained on how to perform it (R2. 937). Sibert found “indication of the presence of lead in the two front pockets, and there was a stronger concentration in the left front pocket” (R2. 937). The State showed Sibert Exhibit 17, which contained two bullets from a box of bullets taken from Roy Cone, Mr. Smith’s uncle (R2. 937). Sibert testified that it was possible that lead from those bullets could have left the lead residue he found in Mr. Smith’s pockets because “ ny source of lead could have been
transferred by rubbing, physical contact with the interior of
those pockets” (R2. 937-38). Sibert also testified that the
30
positive reaction for lead he found in the pockets would be
consistent with those bullets being placed in the pockets (R2.
938). On cross-examination, Sibert testified that his test
did not show how long lead had been present in Mr. Smith’s
pockets or where the lead came from (R2. 940-41).
The second FBI witness was Roger Asbery, an expert in
neutron activation analysis (R2. 1033-34). Asbery used
neutron activation analysis to compare the chemical
composition of State Exhibit 11, which was a fragment of lead
found on the victim, with the chemical composition of State
Exhibit 17, the two bullets from Mr. Cone’s box of bullets
(R2. 1040-41). Asbery testified that the instrument he used
to make the comparison was in good working order, that he used
the instrument properly and that he used the proper procedures
to perform the test (R2. 1042).
Defense counsel objected that the State had not laid a
predicate showing that the instruments Asbery used “were in
proper working order or properly maintained” because Asbery
had simply stated a conclusion that the instruments were
working properly without providing any basis for that
conclusion (R2. 1042-43). The court overruled the objection
(R2. 1043).
Asbery testified that he examined Exhibits 11 and 17 to
31
determine the amounts of copper, arsenic and antimony they
contained (R2. 1043). Asbery “found that they matched in
composition. In other words, the amounts of all three of
these characterizing elements were so close that I could not
distinguish between them” (R2. 1044). Asbery concluded that
this “close compositional association” would be consistent
with bullets coming out of the same box (R2. 1045).
On cross-examination, Asbery testified that part of his
analysis required using a nuclear reactor located in
Gaithersburg, Maryland (R2. 1047). Asbery had no personal
knowledge that the nuclear reactor was working properly and
was not the person who maintained that machine (R2. 1048).
Defense counsel renewed his objection to Asbery’s testimony
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Post by CCADP on May 8, 2005 9:52:15 GMT -5
and moved to strike the testimony because the State had not
shown that the nuclear reactor was in working order (R2.
1052). The court overruled the objection, saying, “since the
agent is not knowing at this point, I will assume that the
reactor was working” (R2. 1052).
The State’s final FBI witness was Donald Havekost,
assigned to the FBI’s elemental composition unit (R2. 1062).
Havekost testified that he was trained to analyze the chemical
composition of materials using neutron activation analysis and
using another procedure called inductively coupled plasma
32
atomic emissions spectrometry (ICP) (R2. 1062-63). When the
State tendered Havekost as an expert, defense counsel objected
that the State had not sufficiently established Havekost’s
expertise (R2. 1065).
Havekost analyzed the same samples Asbery had examined
(R2. 1067). Havekost repeated the neutron activation analysis
and then conducted the ICP analysis, which detects additional
chemical elements (R2. 1068). Havekost testified that the ICP
analysis is generally accepted within the scientific
community, that the instruments used in ICP analysis are
reliable, that the machine he used was working properly and
that he followed the correct procedure in conducting the
analysis (R2. 1070). Havekost testified he was unable to
distinguish between any of the samples he analyzed, meaning
there was no difference in the chemical composition of the
samples (R2. 1071). Havekost concluded that the samples
“originated from a common source” (R2. 1071). After
explaining how bullets are manufactured, Havekost opined that
the matching chemical compositions of the lead fragment in
State Exhibit 11 and the bullets in State Exhibit 17 could not
have occurred by chance:
The more elements you’re able to characterize in
bullet lead, the better you’ve characterized that
particular composition. In other words, it becomes
more and more unlikely that you have two things that
33
match just out of chance. And if you’re able to --
well, in the early days, we felt if we could
characterize three elements that the possibility of
there being a mistake was very remote. If you can
quantitate four elements, five elements, in my
opinion, you’ve reduced the chance to essentially
nothing -- that they just match by chance.
(R2. 1083).
This Court adopted the Frye test for novel scientific
evidence in Bundy v. State, 471 So. 2d 9, 18 (Fla. 1995), and
Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989). The Frye
test requires that the proponent of scientific evidence prove
that the underlying principle, theory, or methodology is
generally accepted in the relevant scientific community. Frye
v. United States, 293 F. 1013, 1015 (D.C. Cir. 1923). The
proponent of the evidence must prove the general acceptance of
both the underlying principle and the testing procedures used
to apply the principle to the facts at issue. Ramirez v.
State, 651 So. 2d 1164, 1168 (Fla. 1995). The Frye test of
general acceptance requires that a "clear majority" of the
relevant community support the methodology or theory. Brim v.
State, 695 So. 2d 268, 272 (Fla. 1997)(citing People v.
Guerra, 690 So. 2d 635, 656 (Cal. 1984)). Courts using the
Frye test have identified three sources to establish the
general acceptance of novel scientific evidence: expert
testimony; scientific and legal writings; and judicial
34
opinions. See, e.g., Flanagan v. State, 586 So. 2d 1085, 1112
(Fla. 1st DCA 1991).
This Court has expressly stated that the expert offering
an opinion based on a novel scientific theory cannot also
testify to its reliability. In Ramirez v. State, 542 So. 2d
352, 354-55 (Fla. 1989), this Court remanded for an
evidentiary hearing noting that "no scientific predicate was
established from independent sources." In Hadden v. State,
690 So. 2d 573, 578 (Fla. 1997), this Court analogized to the
admission of hearsay which is "predicated on a showing of
reliability by reason of something other than the hearsay
itself. . . . Novel scientific evidence must also be shown to
be reliable on some basis other than simply that it is the
opinion of the witness who seeks to offer the opinion." In
Ramirez v. State, 542 So. 2d at 345-55, this Court noted that
"no scientific predicate was established from independent
evidence to show that a specific knife can be identified from
the marks made on cartilage. The only evidence received was
the expert's self-serving statement supporting this
procedure." Id. at 345-55 (emphasis added). In Ramos v.
State, 496 So. 2d 121, 123 (Fla. 1986), this Court similarly
held that a proper predicate had not been established for the
admission of dog scent-discrimination lineups because the only
10See also, Copeland v. State, 566 So. 2d 856, 858 (Fla.
1st DCA 1990)(holding that testimony by the crime analyst is
insufficient to establish reliability); Crawford v. State, 474
So. 2d 873, 876 n. 4 (Fla. 1st DCA 1985)(holding that expert's
"bald assertion" that the methodology was generally accepted
in the community is insufficient to prove the technique is
reliable).
35
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Post by CCADP on May 8, 2005 9:52:31 GMT -5
testimony regarding this new technique was that of the dog
handler and a police officer. In both cases, this Court
required the proponent of new scientific evidence to establish
its reliability through sources independent of the expert's
testimony itself.10 In Murray v. State, 692 So. 2d 157, 164
(Fla. 1997), this Court held that a DNA expert could not offer
statistical calculations based on a database about which he
had no information. This Court stated: "[t]he expert in this
case explicitly stated that he possessed no knowledge as to
the manner in which the relevant database was created . . .
this expert must, at the very least, demonstrate a sufficient
knowledge of the database grounded in the study of
authoritative sources."
The failings identified in these cases are evident in the
testimony of the State’s experts. As to all of defense
counsel’s objections to the experts’ qualifications, the
reliability of their testing and instruments, and the
acceptance of the testing within the scientific community, the
State presented only the experts’ self-serving testimony that
36
they were qualified, that the testing and instruments were
reliable and that their procedures were accepted within the
scientific community. The trial court erred in not conducting
adequate Frye inquiries and in admitting the experts’<br> testimony.
The erroneous admission of this testimony was not
harmless. The harmless error test "places the burden on the
State, as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not
contribute to the [outcome]." State v. DiGuilio, 491 So. 2d
1129, 1138 (Fla. 1986). This Court has explained:
The test is not a sufficiency-of-the-evidence, a
correct result, a not clearly wrong, a substantial
evidence, a more probable than not, a clear and
convincing, or even an overwhelming evidence test.
Harmless error is not a device for the appellate
court to substitute itself for the trier-or-fact by
simply weighing the evidence. The focus is on the
effect of the error on the trier-or-fact. The
question is whether there is a reasonable
possibility that the error affected the verdict.
The burden to show the error was harmless must
remain on the State. If the appellate court cannot
say beyond a reasonable doubt that the error did not
affect the verdict, then the error is by definition
harmful.
Id. at 1139.
The State’s case against Mr. Smith had one big hole: the
investigation turned up no gun or spent bullet which could be
directly connected to Mr. Smith. The State presented two
37
witnesses who testified they had seen Mr. Smith with a gun in
March of 1983 (R2. 896-97; R2. 913-14), and another witness
who testified Mr. Smith had shown her some bullets (R2. 919-
20). Mr. Smith’s co-defendant, Derrick Johnson, testified
that Mr. Smith had a .38 caliber handgun on the evening of the
murder (R2. 1119-21). The State also presented the testimony
of Roy Cone, Mr. Smith’s uncle, who testified that he had
bought a .38 Smith and Wesson handgun and a box of bullets in
1972 (R2. 891). Mr. Cone stored the gun under his
mattress(R2. 893-94). Mr. Cone thought he discovered the gun
was missing some time in March of 1983 and believed he had
last seen it the night of December 31, 1982 (R2. 1230, 1231-
32). Mr. Cone testified that he had never shown Mr. Smith
where the gun was hidden, that Mr. Smith never went into Mr.
Cone’s bedroom and that Mr. Cone kept the bedroom door locked
(R2. 1229). The victim of a robbery which occurred the
evening after the murder testified that Mr. Smith had a
handgun during the robbery (R2. 1195).
The only way for the State to connect Mr. Cone’s gun to
Mr. Smith was through the expert testimony on lead analysis.
The prosecutor relied upon this testimony in closing, arguing,
“And what did the FBI tell you? That the bullets from the box
of Roy Cone’s box and this lead fragment found on the victim,
38
Jeffrey Songer, is materially indistinguishable. They’re the
same” (R2. 1304). The prosecutor continued, “[The FBI
witnesses] went into great detail to explain to you how
bullets are made. It’s a product that’s used up all the time
and the chances are, ten years later, finding a box that has
the same material composition as a box made ten years ago just
boggles the mind” (R2. 1304-05). To answer the question of
whether Mr. Smith shot the victim, the prosecutor directed the
jury to consider the testimony of several witnesses, including
the FBI witnesses (R2. 1305). The prosecutor argued that
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