Derrick Smith - Florida - Petition for Habeas

[CCADP]

Sibert’s testimony about finding lead residue in Mr. Smith’s

pockets corroborated Derrick Johnson’s testimony (R2. 1305-

06). In rebuttal closing, the prosecutor returned to the lead

analysis evidence, arguing, “the chances, as the FBI agent

told you, . . . of that piece of lead [found on the victim]

matching those bullets [from Mr. Cone’s box] is just one

believable ‘it can’t be done.’ Infinitesimal [sic]” (R2.

1348). In the circumstances of Mr. Smith’s case, the

State cannot establish beyond a reasonable doubt that the

erroneously admitted expert testimony had no effect on the

jury’s verdict. Appellate counsel was ineffective in failing

to raise this issue. This Court should order a new direct

appeal.

11These two witness would have testified that they saw Mr.

Smith at Norm’s Bar when they arrived there around 11:00 PM.

Norm’s Bar was across the street from the Hoggley-Woggley.

There was another witness, Dina Watkins, who had testified in

1983 that she was at Norm’s Bar that night and saw Mr. Smith

outside of the bar around midnight (R1. 1959-79).

Inexplicably, Mr. Sanders neither called her, nor sought to

introduce her prior testimony.

39

B. PRECLUSION ON PRESENTING DEFENSE WITNESSES

Mr. Smith wanted to present two witnesses on his behalf,

but defense counsel did not believe the witnesses were telling

the truth. The witnesses did not testify.11 Appellate counsel

failed to raise this issue on direct appeal, depriving Mr.

Smith of the effective assistance of direct appeal counsel.

Before trial, defense counsel moved to withdraw because

Mr. Smith wanted him to present some witnesses who counsel

believed might not be telling the truth (R2. 353). Counsel’s

belief was based in part on his recollection of conversations

with Mr. Smith and in part on “my basic belief that I don’t

think they are very credible witnesses” (R2. 353). Counsel

informed the court that his and Mr. Smith’s recollections of

their conversations differed, and if Mr. Smith’s recollection

was correct, counsel’s only basis for disbelieving the

witnesses was his own assessment of their credibility (R2.

353-54). Counsel acknowledged that his own assessment of the

witnesses’ credibility should not prevent him from calling

40

them, particularly since he believed Mr. Smith would be

acquitted if the jury believed the witnesses, who would

provide Mr. Smith with an alibi (R2. 354). Thus, counsel

based his motion to withdraw upon the fact that his and Mr.

Smith’s recollections of their conversations differed and

counsel could not reveal the substance of those conversations

(R2. 354-55).

The State argued that defense counsel should not be

allowed to withdraw (R2. 358). The State contended that under

the Rules of Professional Conduct, defense counsel was

required to make the decisions regarding which witnesses to

call regardless of Mr. Smith’s wishes (R2. 357-58). The court

denied the motion to withdraw and told defense counsel he

would have to make a decision about calling the witnesses (R2.

358-60).

The issue came up again during trial. Defense counsel

reiterated that he could not call the witnesses and asked that

they be called as court witnesses or that the court allow Mr.

Smith to call them himself (R2. 963). The court said that

having Mr. Smith call the witnesses was “not acceptable at

all” and suggested the possibility of having the witnesses be

sworn and then narrate their testimony without defense counsel

questioning them (R2. 964). The court deferred ruling on the

41

[CCADP]

965).

After the State rested its case, the court returned to

the issue. The two witnesses were identified as Kahn Campbell

and James Hawkins (R2. 1238). Defense counsel reiterated his

view that he could not call the witnesses under the rules of

professional conduct based upon his personal opinion of their

credibility and upon a confidential conversation with Mr.

Smith (R2. 1239). Defense counsel and the court agreed that

counsel’s personal opinion of the witnesses’ credibility was

not sufficient grounds not to present their testimony (R2.

1239). Defense counsel again asked that the witnesses be

called as court witnesses, but the court denied the request

(R2. 1240). Defense counsel suggested allowing Mr. Smith to

call the witnesses himself, but the court rejected that

suggestion as well (R2. 1240-42). The State refused “to take

a position that would preclude a Defense witness from

testifying” (R2. 1244). The court ruled that if defense

counsel believed his recollection of his confidential

conversation with Mr. Smith was correct, then counsel was

correct to refuse to present the witnesses (R2. 1246-47).

Mr. Smith addressed the court, reiterating his desire to

call the witnesses (R2. 1248-49). Defense counsel proffered

that Campbell and Hawkins would testify to what they said at

12Khan Campbell and James Hawkins, testified in their

depositions that they saw Mr. Smith at Norm’s Bar, located

across the street from the Hogley-Wogley at 11:30 PM on March

20, 1983. They indicated that they remembered the date

because earlier in the day (around noon) Hawkins and Campbell

had taken Campbell’s pregnant girlfriend, Dylan Walters, to a

hospital emergency room and left her there. After the

depositions, the State disclosed hospital records allegedly

demonstrating that the witnesses were in error regarding their

recollection of seeing Mr. Smith on the night of the homicide.

The hospital record that the State produced showed that

Walters was treated in an emergency room at 3:20 PM on March

28, 1983. However, a careful examination of the hospital

record demonstrated that on March 28th Campbell was accompanied

by her grandmother, Freddie Mae Hampton, not James Hawkins

(PC-R. 2251). After receiving the hospital record, Mr.

Sanders abandoned the defense and refused to call the

witnesses.

42

their depositions (R2. 1252).12 Counsel emphasized, “Mr. Smith

does, in fact, want these people to testimony [sic] for him”<br>
(R2. 1252).

The trial court's refusal to allow Mr. Smith to call

witnesses denied Mr. Smith his right to present a complete

defense, in violation of the sixth, eighth and fourteenth

amendments. See Washington v. Texas, 338 U.S. 14 (1967);

Crane v. Kentucky, 476 U.S. 683, 690 (1986); Pointer v. Texas,

380 U.S. 400 (1965). Due process requirements supersede the

application of state rules. Chambers v. Mississippi, 410 U.S.

284, 302 (1973); Rock v. Arkansas, 107 S. Ct. 2704 (1987);

Taylor v. Illinois, 108 S. Ct. 646 (1988). Where a defendant

is prevented from presenting evidence which is 'plausibly

43

relevant' to his theory of defense, this constitutes

reversible error. Coxwell v. State, 361 So. 2d 148 (Fla.

1978); Coco v. State, 62 So. 2d 892 (Fla. 1953). Witnesses

who would have provided Mr. Smith with an alibi were more than

plausibly relevant. The trial court's exclusion of evidence

was constitutional error of the first order "and no showing of

want of prejudice [will] cure it." Davis v. Alaska, 415 U.S.

308, 317-18 (1974).

These legal principles were well known at the time of Mr.

Smith’s direct appeal. Appellate counsel provided ineffective

assistance in failing to raise this issue on direct appeal.

C. MR. SMITH’S INVOLUNTARY ABSENCES

Mr. Smith was twice involuntarily absent from the trial

court proceedings in his case. Before trial, the court held a

hearing on a defense motion in limine (R2. 246). Counsel

argued the first point of the motion, which concerned

statements Mr. Smith had made to law enforcement(R2. 248-50),

and was well into arguing the second point of the motion,

which involved the State’s intention to present similar fact

evidence of an armed robbery (R2. 250-60), when Mr. Smith was

finally brought into the courtroom (R2. 260). The court

conducted no inquiry of Mr. Smith regarding his absence.

After the State had presented two witnesses in its case,

44

Mr. Smith was also absent from an in-chambers discussion

regarding the location of the defense table in the courtroom

(R2. 725). The discussion arose when the prosecutor said,

“[T]he seating arrangements in the courtroom have become in

dispute. It appears that Mr. Smith wants to sit where the

prosecution is sitting yesterday so Mr. Smith can stare down

witnesses” (R2. 725). Defense counsel clarified, “For the

record, it’s our position you have a hard time seeing the

witnesses from the table where we’re sitting” (R2. 725). The

court offered to move the defense table “closer to the rail,

if you wish, so he may see at a better angle. But once people

take tables, that’s where they stay through the course of the

trial” (R2. 726). The court made no mention of Mr. Smith’s

absence from this discussion and never asked Mr. Smith about

it.

That a defendant's involuntary absence from a critical

stage constituted constitutional error under Florida and

federal law was widely known at the time of Mr. Smith's direct

appeal. See Drope v. Missouri, 420 U.S. 162 (1975); Illinois

v. Allen, 397 U.S. 337 (1970); Proffit v. Wainwright, 685 F.2d

1227 (11th Cir. 1982); Francis v. State, 413 So. 2d 1175 (Fla.

1982); Amazon v. State, 487 So. 2d 8 (Fla. 1986). As this

Court has held, a capital defendant has "the constitutional

45

right to be present at the stages of his trial where

fundamental fairness might be thwarted by his absence."

Francis, 413 So. 2d at 1177. See also Garcia v. State, 492

So. 2d 360, 363 (Fla. 1986) ("Appellant is correct in his

assertion that he has a constitutional right to be present at

all crucial stages of his trial where his absence might

frustrate the fairness of the proceedings"). This right

derives in part from the Confrontation Clause of the Sixth

Amendment and the Due Process Clause of the Fourteenth

Amendment. Proffitt, 685 F. 2d at 1256.

The constitution defines those stages where presence is

required as any proceeding at which the defendant's presence

has a "reasonably substantial relationship to his ability to

conduct his defense." Id. at 1256. The determination of

whether the defendant's presence is required should focus on

the function of the proceeding and its significance to trial.

Id. at 1257.

[CCADP]

While " capital defendant is free to waive his

presence at a crucial stage of the trial," such a waiver "must

be knowing, intelligent, and voluntary." Amazon v. State, 487

So. 2d 8, 11 (Fla. 1986). See also Schneckloth v. Bustamonte,

412 U.S. 218 (1973); Johnston v. Zerbst, 304 U.S. 458 (1938).

"Counsel may make the waiver on behalf of a client, provided

46

that the client, subsequent to the waiver, ratifies the waiver

either by examination by the trial judge, or by acquiescence

to the waiver with actual or constructive knowledge of the

waiver." Id. See also Coney v. State, 653 So. 2d 1009, 1013

(Fla. 1995). In determining the constitutional adequacy of

the waiver, a trial court must question the defendant about

his understanding of his right to be present during the

critical stage at issue, and the record must affirmatively

demonstrate that the defendant knowingly waived this right.

Francis, 413 So. 2d at 1178.

If a defendant is involuntarily absent from any critical

stage of the proceedings, relief is warranted unless the State

can show first that the defendant made a knowing, intelligent,

and voluntary waiver of the right to be present, Francis, 413

So. 2d at 1178, and that the defendant's absence was harmless

beyond a reasonable doubt. Id. (citing Chapman v. California,

386 U.S. 18 (1967). If the Court is "unable to assess the

extent of prejudice, if any, [the defendant] sustained by not

being present during ," the Court must

conclude that "[the defendant's] involuntary absence without

waiver by consent or subsequent ratification was reversible

error and that [the defendant] is entitled to a new trial."

Francis, 413 So. 2d at 1179.

47

In Mr. Smith’s case, the court made no inquiries

whatsoever regarding Mr. Smith’s absences. Mr. Smith had a

right to be present at the pre-trial motion hearing and at a

discussion of whether he could see the witnesses from his seat

in the courtroom. Direct appeal counsel provided ineffective

assistance in failing to raise this issue.

D. CONCLUSION

These issues should have been presented to this Court on

direct appeal. The issues were preserved for appeal. The

failure of appellate counsel to raise these issues on direct

appeal clearly undermine confidence in the outcome of the

direct appeal. A new direct appeal should be ordered.

CLAIM IV

FLORIDA’S CAPITAL SENTENCING PROCEDURE DEPRIVED MR.

SMITH OF HIS SIXTH AMENDMENT RIGHTS TO NOTICE AND TO

A JURY TRIAL AND OF HIS RIGHT TO DUE PROCESS.

Ring v. Arizona, 122 S. Ct. 2428(2002) overruled Walton

v. Arizona, 497 U.S. 639 (1990), “to the extent that it allows

a sentencing judge sitting without a jury, to find an

aggravating circumstance necessary for imposition of the death

penalty.” Ring at 2443. The role of the jury in Florida’s

capital sentencing scheme, and in particular Mr. Smith’s

capital trial, neither satisfies the Sixth Amendment, nor

renders harmless the failure to satisfy Apprendi v. New

13In many ways, the Bottoson v. Moore decision contains the

primary opinions of the seven justices. This Court had seven

participating justices in that decision, while in King v.

Moore, Justice Quince was recused. Generally, the separate

opinions in King rely upon the separate opinions in Bottoson

as more fully reflecting the reasoning of its author.

48

Jersey, 530 U.S. 466 (2000)and Ring.

On October 24, 2002, this Court rendered its decisions in

Bottoson v. Moore, 833 So.2d 693 (Fla. 2002), cert. denied 537

U.S. 1070, and King v. Moore, 831 So.2d 143 (Fla. 2002), cert.

denied. 537 U.S. 1067, relating to the United States Supreme

Court’s decision in Ring and thus, its impact upon the

constitutionality of Florida’s death penalty sentencing

scheme. A careful reading of the various separate opinions in

those published decisions establish that Mr. Smith is entitled

to sentencing relief.

In both Bottoson v. Moore and King v. Moore, each justice

wrote separate opinions explaining his or her reasoning for

denying both petitioners relief. In both decisions, a per

curiam opinion announced the result. In neither case do a

majority of the sitting justices join the per curiam opinion

or its reasoning. In both cases, four justices wrote separate

opinions explaining that they did not join the per curiam

opinion, but “concur[red] in result only.” Bottoson v. Moore,

833 So. 2d at 694; King v. Moore, 831 So. 2d at 143.13

49

When the four separate opinions that concur in result

only are analyzed, it is clear that relief was denied in the

two cases based upon facts present in those cases that are not

present in Mr. Smith’s case. Under the logic of those four

separate opinions, concurring in result only, Mr. Smith is

entitled to sentencing relief as a result of Ring v. Arizona.

Mr. Smith’s death sentence was imposed in an

unconstitutional manner because he was required to prove the

non-existence of an element necessary to make him eligible for

the death penalty. Under Florida law, a death sentence may

not be imposed unless the judge finds the fact that

“sufficient aggravating circumstances” exist to justify

imposition of the death penalty. Fla. Sat. Sec 921.141 (3).

Because imposition of a death sentence is contingent upon this

fact being found, and the maximum sentence that could be

imposed in the absence of that finding is life imprisonment,

the Sixth Amendment required that the State bear the burden of

proving it beyond a reasonable doubt. Ring at 2432(“Capital

defendants. . .are entitled to a jury determination of any

fact the legislature conditions an increase in their maximum

punishment.”).

The Due Process Clause of the Fourteenth Amendment

requires the State to prove beyond a reasonable doubt every

50

fact necessary to constitute a crime. In re Winship, 397 U.S.

358 (1970). The existence of “sufficient aggravating

circumstances” that outweigh the mitigating circumstances is

an essential element of death-penalty-eligible first degree

murder because it is the sole element that distinguishes it

from the crime of first degree murder, for which life is the

only possible punishment. Fla. Stat. Secs. 775.082, 921.141.

For that reason, Winship requires the prosecution to prove the

existence of that element beyond a reasonable doubt. Mr.

Smith’s jury was told otherwise. The instructions given to

[CCADP]

Mr. Smith’s jury violated the Due Process Clause of the

Fourteenth Amendment to the United States Constitution and the

Sixth Amendment’s right to trial by jury because it relieved

the State of its burden to prove beyond a reasonable doubt the

element that “sufficient aggravating circumstances exist”<br>
which outweigh mitigating circumstances by shifting the burden

of proof to Mr. Smith to prove that the mitigating

circumstances outweigh sufficient aggravating circumstances.

Mullaney v. Wilbur, 421 U.S. 684, 698 (1975).

Mr. Smith’s death sentences are also invalid and must be

vacated because the elements of the offense necessary to

establish capital murder were not charged in the indictment in

violation of the Sixth, Eighth, and Fourteenth Amendments to

14The grand jury clause of the Fifth Amendment has not

been held to apply to the States. Apprendi, 530 U.S. at

477, n. 3.

51

the United States Constitution, the Florida Constitution, and

Due Process. Jones v. United States, 526 U.S. 227 (1999),

held that “under the Due Process Clause of the Fifth Amendment

and the notice and jury guarantees of the Sixth Amendment, any

fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.”<br>
Jones, at 243 , n. 6. Apprendi v. New Jersey, 530 U.S. 466

(2000), held that the Fourteenth Amendment affords citizens

the same protections when they are prosecuted under state law.

Apprendi, 530 U.S. at 475-476. 14 Ring v. Arizona, 122 S.Ct.

2428 (2002), held that a death penalty statute’s “aggravating

factors operate as ‘the functional equivalent of an element of

a greater offense.’” Ring, at 2441 (quoting Apprendi, 530 U.S.

at 494, n. 19). In Jones, the United States Supreme Court

noted that “[much turns on the determination that a fact is an

element of an offense, rather than a sentencing

consideration,” in significant part because “elements must be

charged in the indictment.” Jones, 526 U.S. at 232.

Like the Fifth Amendment to the United States

Constitution, Article I, Section 15 of the Florida

52

Constitution provides that “no person shall be tried for a

capital crime without presentment or indictment by a grand

jury”. Like 18 U.S.C sections 3591 and 3592(c), Florida’s

death penalty statute, Florida Stats. §§ 775.082 and 921.141,

makes imposition of the death penalty contingent upon the

government proving the existence of aggravating circumstances,

establishing “sufficient aggravating circumstances” to call

for a death sentence, and that the mitigating circumstances

are insufficient to outweigh the aggravating circumstances.

Fla. Stat. § 921.141 (3). Florida law clearly requires every

“element of the offense” to be alleged in the information or

indictment. In State v. Dye, 346 So. 2d 538, 541 (Fla. 1977),

the Florida Supreme Court said “n information must allege

each of the essential elements of a crime to be valid. No

essential element should be left to inference.” In State v.

Gray, 435 So. 2d 816, 818 (Fla. 1983), this Court stated

“[w]here an indictment or information wholly omits to allege

one or more of the essential elements of the crime, it fails

to charge a crime under the laws of the state,” an indictment

in violation of this rule cannot support a conviction; the

conviction can be attacked at any stage, including “by habeas

corpus”. Gray, 435 So. 2d at 818. Finally, in Chicone v.

State, 684 So. 2d 736, 744 (Fla. 1996), this Court stated

53

“s a general rule, an information must allege each of the

essential elements of a crime to be valid.” It is impossible

to know whether the grand jury in this case would have

returned an indictment alleging the presence of aggravating

factors, sufficient aggravating circumstances, and

insufficient mitigating circumstances, and thus charging Mr.

Smith with a crime punishable by death. The State’s authority

to decide whether to seek the execution of an individual

charged with a crime hardly overrides- in fact- is an

archetypical reason for the constitutional requirement of

neutral review of prosecutorial intentions. See e.g., United

States v. Dionisie, 410 U.S. 19, 33 (1973); Wood v. Georgia,

370 U.S. 375, 390 (1962); Campbell v. Louisiana, 523 U.S. 393,

399 (1998).

The Sixth Amendment requires that “n all criminal

prosecutions, the accused shall . . be informed of the nature

and cause of the accusation . . .” A conviction on a charge

not made by the indictment is a denial of due process of law.

State v. Gray, supra, citing Thornhill v. Alabama, 310 U.S 88

(1940), and DeJonge v. Oregon, 299 U.S. 353 (1937). By wholly

omitting any reference to the aggravating circumstances that

would be relied upon by the State in seeking a death sentence,

the indictment prejudicially hindered Mr. Smith “in the

54

preparation of a defense” to a sentence of death. Fla. R.

Crim. P. 3.140(o). Based on the foregoing, Mr. Smith

respectfully requests that his sentence of death as well as

the advisory sentence be vacated in light of Ring v. Arizona

and a life sentence imposed. At the very least, a resentencing

proceeding that comports with the Sixth Amendment

as explained by Ring v. Arizona is required.

CONCLUSION AND RELIEF REQUESTED

Mr. Smith, through counsel, respectfully urges that the

Court issue its Writ of Habeas Corpus, vacate his

unconstitutional conviction and sentence of death, and/or

order a new direct appeal.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

Petition for a Writ of Habeas Corpus has been furnished by

United States Mail, first class postage prepaid, to Catherine

Blanco, Assistant Attorney General, Department of Legal

Affairs, Westwood Center, 7th Floor, 2002 North Lois Avenue,

Tampa, Florida 33607, on January 18, 2005.

MARTIN J. MCCLAIN

Attorney at Law

Florida Bar No. 0754773

141 NE 30th Street

55

Wilton Manors, FL 33334

[phone]

COUNSEL FOR PETITIONER

CERTIFICATE OF FONT

This petition is typed in Courier 12 point not

proportionately spaced.

MARTIN J. MCCLAIN