IN THE SUPREME COURT OF FLORIDA
CASE NO. 95,227
MILO A. ROSE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
GREGORY C. SMITH
Capital Collateral Counsel
Florida Bar No. 279080
JOHN A. TOMASINO
Assistant CCC-NR
Florida Bar No. 106021
LINDA McDERMOTT
Assistant CCC-NR
Florida Bar No. 0102857
OFFICE OF THE CAPITAL COLLATERAL
COUNSEL
Northern Region of Florida
Post Office Drawer 5498
Tallahassee, FL 32314-5498
PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit court's
summary denial of Mr. Rose's motion for postconviction relief.
The motion was brought pursuant to Fla. R. Crim. P. 3.850.
The following abbreviations will be utilized to cite to the
record in this cause, with appropriate page number(s) following
the abbreviation:
"R." -- record on direct appeal to this Court;
"PC-R1." -- record on appeal from initial denial of postconviction relief;
"PC-R2." -- record on appeal in the instant proceeding;
"Supp. R." -- supplemental record on appeal materials.
CERTIFICATION OF TYPE SIZE AND STYLE
This is to certify that the Initial Brief of Appellant has
been reproduced in a 12 point Courier type, a font that is not
proportionately spaced.
REQUEST FOR ORAL ARGUMENT
Mr. Rose has been sentenced to death. The resolution of the
issues involved in this action will therefore determine whether
he lives or dies. This Court has not hesitated to allow oral
argument in other capital cases in a similar procedural posture.
A full opportunity to air the issues through oral argument would
be more than appropriate in this case, given the seriousness of
the claims involved and the stakes at issue. Mr. Rose, through
counsel, accordingly urges that the Court permit oral argument.
TABLE OF CONTENTS
Page
55 C. THE CIRCUIT COURT ERRED IN DENYING MR. ROSE'S PRO SE MOTION
56
Page
92
92
92 B. ARGUMENT AND LEGAL AUTHORITY
100
105
105
105
107
107
110
TABLE OF AUTHORITIES
STATEMENT OF THE CASE
On October 26, 1982, Milo A. Rose was indicted by a Pinellas
County Grand Jury for the first degree murder of Robert "Butch"
Richardson (R. 1070-1071). Trial counsel, Darryl Rouson, was
appointed on March 31, 1983 (R. 164).
Mr. Rose's trial commenced on June 28, 1983. On June 30th,
a jury found Mr. Rose guilty of first degree murder (R. 293).
Penalty proceedings were conducted on July 5, 1983, so that
trial counsel could begin to prepare for the penalty phase over
the holiday weekend (R. 1102-1107). The jury recommended a
sentence of death by a vote of nine to three (R. 310-311).
The trial court sentenced Mr. Rose to death on July 8, 1983.
The trial court found three aggravating circumstances:
previously convicted of a violent felony, the murder was
committed while under a sentence of imprisonment and cold,
calculated and premeditated (R. 329-336). The trial court did
not find that the murder was heinous, atrocious and cruel,
despite the jury's consideration of this factor (R. 332-333).
On direct appeal this Court affirmed the conviction and
sentence of death. Rose v. State, 472 So. 2d 1155 (Fla. 1985).
On October 2, 1987, after his death warrant was signed and
his execution scheduled, Mr. Rose filed his Motion to Vacate
Judgement of Conviction and Sentence (PC-R1. 5-80). An amendment
was filed on August 2, 1988 (PC-R1. 466-508). The trial court
summarily denied most of Mr. Rose's Rule 3.850 claims and ordered
a limited evidentiary hearing as to those claims concerning
ineffective assistance of counsel in penalty phase, and a claim
relating to Caldwell v. Mississippi, 472 U.S. 320 (1985) (PC-R1.
750, 753). The hearing and argument were conducted on September
7-9 and 12, 1988. The trial court denied all relief on January
25, 1990.
On appeal, this Court denied all relief. Rose v. State, 617
So. 2d 291 (Fla. 1993).
After instituting federal habeas corpus proceedings, Mr.
Rose learned that critical State witnesses, Becky Borton and Mark
Poole, made a deal with the State to receive lenient treatment in
exchange for their testimony against Mr. Rose. In December,
1996, Mr. Rose filed a Rule 3.850 motion based on this
information (PC-R2. 1-25). Mr. Rose filed an Amended Motion to
Vacate Judgment of Conviction and Sentence on September 4, 1998
(PC-R2. 187-234).
The lower court held a Huff1 hearing on December 17, 1998.
At the conclusion of the Huff hearing the lower court announced
her summary denial of all relief (PC-R2. 770-771). On February
22, 1999, the lower court adopted the State's proposed order and
summarily denied all relief (PC-R2. 843-846). Thereafter, notice
of appeal was timely filed (PC-R2. 919-920).
1 Huff v. State, 622 So. 2d 982 (Fla. 1993).
STATEMENT OF FACTS
A. INTRODUCTION
Mr. Rose was convicted and sentenced to death for the murder
of Robert "Butch" Richardson. At trial, the State presented the
testimony of three witnesses who identified Mr. Rose as being the
individual who killed Mr. Richardson (R. 701-781). The State
also presented the testimony of Becky Borton and Mark Poole.
Both of these individuals testified that they had seen Mr. Rose
hitchhiking in the vicinity of the murder and that they had given
him a ride to his home, where they were also staying (R. 865,
888). Both witnesses testified that Mr. Rose had confessed that
he had killed Butch (R. 865-866, 890). The State also presented
evidence that Mr. Rose had blood on him when he was arrested that
night (R. 959).
Evidence was discovered since Mr. Rose's trial indicating
that Poole and Borton had an ongoing relationship with the State
whereby they received benefits for their testimony. Borton was
promised assistance on her pending charges in exchange for her
cooperation. The State failed to disclose material exculpatory
evidence.
The State withheld material exculpatory evidence regarding
the benefits received by Poole and Borton that would have enabled
the defense to impeach their credibility by showing the jury why
they were testifying against Mr. Rose. As a result of theState's misconduct, the jury that convicted Mr. Rose and
sentenced him to death was misled by false testimony and deprived
relevant impeachment evidence that would have explained these
witnesses' true motivation for testifying against Mr. Rose.
B. THE TRIAL RECORD
Mr. Rose was "represented" at trial by Darryl Rouson, who
was appointed on March 31, 1983 (R. 164). At the first hearing
with Rouson, held on April 7, 1983, Rouson made an oral motion to
withdraw as counsel, which was denied (R. 171a), after Rouson
convinced Mr. Rose to accept his representation and waive his
speedy trial rights upon Rouson's promise that he would fully
prepare, investigate, and "work" the case, including the taking
of depositions (R. 1211). Inexplicably, the lower court entered
an order on May 25, 1983, continuing the trial to June 27, 1983
(R. 178).2 Rouson conducted the depositions of Melissa A.
Mastridge, Mark Poole, and Becky Borton on June 10, 1983 (R. 179-
230). On June 23, 1983, just four days before trial commenced,
Judge Parker, not Judge Schaeffer, entered an order appointing
2 The Record on Appeal is silent as to whether the lower
court sua sponte entered the continuance order, or whether a
written motion was filed, or whether an oral motion was made at a
hearing that is not included in the Record on Appeal.
5
Dr. Slomin to evaluate Mr. Rose (R. 231).3 Rouson provided Dr.
Slomin with an "interview sheet" that was approximately five or
six pages long that asked the defendant to self-report on
information regarding the defendant's background (PC-R1. 846).
The only other information Rouson provided was "the benefit of
[his] discussions with the defendant in jail, [his] observations
of him" (PC-R1. 846).
At 8:50 a.m. the morning of the first day of trial, Rouson
deposed Catherine Bass, a critical State witness (R. 235-246).
At 9:15 a.m. that morning, Rouson deposed Maryanne Hutton, a
critical State witness (R. 247-259). Shortly after the
depositions were concluded, the lower court called Mr. Rose's
case for trial (R. 458). At this time, Rouson filed a Motion for
Continuance (R. 262-263). Rouson informed the lower court that
he was unprepared to go forward, as he still had investigations
and preparations to complete (R. 460-464).4 The lower court
denied this request (R. 469-470).
Rouson then filed a Motion to Suppress Photo-Pak (R. 260-
261). Due to the conclusory nature of the pleading, the lower
court postponed the beginning of trial to take testimony (R.
3 The Record on Appeal is again silent as to the events
that transpired prior to the entering of the Order.
4 However, Mr. Rouson did not explain that co-counsel,
Terry Cobb, had withdrawn from the case and that he felt
"shorthanded" because he no longer had her assistance (PC-R1.
851).
472). At that hearing, Rouson admitted that it was the first
time he saw the original photo-pak (R. 472). In addition, for no
apparent reason, Rouson only called two of the four witnesses who
claimed they could identify Mr. Rose.
At the hearing, Catherine Bass testified that she choose Mr.
Rose's photo and rejected the four other photos that were
contained in the photo-pak because the four photos did not match
her description of the perpetrator:
Q: (BY MR. ROUSON) Ms. Bass, let me
show you these pictures again. Would you
explain to me why you rejected number 1?
A: Yes, sir, he is too stocky.
Q: Would you explain to me why you
rejected number 3?
A: His hair is too long. He was not
wearing an open-collared shirt. He was
wearing a T-shirt.
Q: Would you explain to me why you
rejected number 2?
A: Yes sir, he had dark hair, bushier
than this, not layered like this at all.
Q: And would you explain why you
rejected number 5?
A: Yes, sir, he had much longer hair
than this and he did not have a full beard.
Q: Okay, you were able --
A: Not this full.
Q: You were able to distinguish those
pictures readily, weren't you?
A; Yes, sir.
(R. 486-487).5
Melissa Mastridge also testified at the suppression hearing
(R. 487-490). Mastridge maintained that she was unable to
positively identify Mr. Rose and the only reason she could pick
out his picture was because "out of these five pictures, he was
the only one that it could be because of his description" (R.
488). Mastridge also informed the court that there had been some
discussion regarding the white lettering on the suspect's tee
shirt, although she could not recall if that conversation between
the witnesses occurred before they traveled to the police station
or once they arrived there (R. 489). Mastridge was unable to
identify Mr. Rose during the hearing.
After the hearing concluded, Judge Schaeffer suppressed
Mastridge's out-of-court identification based on the fact that
she eliminated the four (4) other photos rather than choosing Mr.
Rose's photo based on his characteristics (R. 508-509). However,
Judge Schaeffer found that Catherine Bass, Carl Hayword and
Maryann Hutton would be allowed to testify about their out-of
5 Ms. Bass' testimony reveals that she also eliminated
the four pictures in the photo-pak to reach her conclusion that
Mr. Rose's picture "matched" her descriptions of the perpetrator.
Judge Schaeffer struck witness Mastridge's identification based
on exactly the same grounds. Mr. Rose was severely prejudiced by
Mr. Rouson's failure to argue this point to the judge at the
suppression hearing and Judge Schaeffer improperly compounded the
error by denying an evidentiary hearing on guilt phase
ineffective assistance of counsel.
court identifications (R. 507-509). Judge Schaeffer made this
finding despite the fact that the photo-pak was not "as ideal as
it might have been", (R. 507), and that Mr. Rose's photo did not
"rise to that much substantial likelihood of irreparable mistaken
identification" (R. 509)(emphasis added). Judge Schaeffer also
based her decision on the fact that she did not hear any
testimony that the witnesses had "seen writing" on the suspect's
shirt (R. 507).
However, Judge Schaeffer ignored the testimony at the
suppression hearing that the design and the "white lettering" on
the suspect's tee shirt had been discussed between the witnesses
(R. 489). During the trial this fact was further emphasized when
Bass testified that the perpetrator was wearing a "black t-shirt
with a white design on it, block lettering" (R. 710). Mr. Rose's
photo was the only photo with an individual wearing a black tee
shirt with white lettering (R. 502-503).
After providing the lower court with only a single district
court of appeal case, the lower court ruled, "this [photo-pack]
isn't as ideal as it might have been" and, "I don't find the
picture gives rise to that much substantial likelihood of
irreparable mistaken identification" (R. 507-509). Nonetheless,
the lower court allowed the identification of three of the four
eyewitnesses to stand.
Jury selection began shortly after the conclusion of the
Motion to Suppress hearing. After failing to challenge a single
potential juror for cause and using only six peremptory
challenges, the jury was seated (R. 611, 612-617, 661-664).
Rouson's non-case specific opening statement consisted of only
two transcribed pages (R. 696-698).
The State first called eyewitness Catherine Bass (R. 701).
On cross examination, Rouson failed to question and impeach Bass
with the evolving nature of her description of the suspect (R.
716-731). Rouson's one attempt to impeach Bass' recollection of
her initial identification was over a feature that she did, in
fact, tell the first officer on the scene (R. 727-728). Rouson
failed to elicit that Bass added numerous descriptive terms to
her initial identification, such as the suspect was dark
complected, had a moustache and beard, unkempt hair, and dark
eyes, etc. (R. 722-724). Rouson also failed to elicit that Bass,
when selecting photograph number four from the array, was not
certain that the photograph she selected was the perpetrator (R.
730-731).
The State next called Melissa Mastridge (R. 734). Even
though the lower court suppressed her identification of Mr. Rose,
Rouson failed to limit her testimony and allowed the State to ask
Mastridge several questions regarding her description of the
perpetrator (R. 740). Rouson did not file a Motion in Limine to
prevent the State from asking Mastridge these questions, nor did
he object to this line of questioning (R. 740).
The State next called Maryann Hutton (R. 754). As with
witness Bass, Rouson failed to impeach Hutton with the glaring
inconsistencies between her initial description and her
"remembrance" of her initial description at trial (R. 765-769).
Hutton added numerous features to her initial description and
Rouson failed to educate the jury to this fact.
Later in its case-in-chief, the State called Detective
Luchen, who prepared the photo-pack (R. 782). Rouson moved to
voir dire Luchen, in the presence of the jury, regarding his
preparation of the photo-pack (R. 784). At the conclusion of the
voir dire, Rouson, in open court in front of the jury, moved
again to suppress the photo-pack (R. 787). The lower court
immediately called Rouson to the bench, where the following
exchange occurred:
THE COURT: As you well know, when a
Judge makes a ruling as a matter of law, it
would be foolish for you to speak out and say
something like that in front of a jury. But
I have obviously ruled, and you know I have
already ruled, and now I don't know what else
to do but tell them I have already ruled on
that point. Don't do that, just get yourself
in a box, when the Court already made a
ruling as a matter of law, then what you do
is preserve your objection at the bench. You
don't say something like that in front of the
jury. It isn't fair. Did you think I was
going to change my ruling? Did you really
think I was going to change my ruling?
* * *
THE COURT: You better do your
preserving at the bench, and not in front of
the jury. That is just as improper as it can
be.
(R. 788)(emphasis added). After this brief lecture on elementary
trial procedures, the State immediately moved for the
introduction of the photo-pack, capitalizing on the fact that
Judge Schaeffer was forced by Rouson into validating the
preparation and subsequent identifications of Mr. Rose from the
photo-pack (R. 789).
During the State's examination of the Medical Examiner, Dr.
Donna Brown, Rouson failed to object when the State misstated the
substance of the prior testimony of the eyewitnesses as to the
number of times the concrete block was thrown at the victim (R.
844). All of the eyewitnesses testified that the block was
thrown no more than three times; however, the State asked whether
the injuries were consistent with the block striking the victim
five to six times (R. 844).6
6 Due to Rouson's failure to object to this blatant
misstatement of prior testimony, the history of Mr. Rose's case
is inaccurate. Judge Schaeffer not only relied on this
misstatement, but took the liberty of increasing the number of
throws to six to eight times to support her finding of the cold,
calculated, and premeditated aggravating factor (R. 335).
Unfortunately, because Judge Schaeffer denied an evidentiary
hearing on guilt phase ineffectiveness, this point has never been
challenged.
The jury also heard testimony from Borton and Poole. These
witnesses testified that Mr. Rose confessed to them (R. 865-866,
890).
Borton testified that on the night of the murder, after
leaving Suzanne Duke's apartment, she and Poole saw Mr. Rose
hitchhiking (R. 887-888). They stopped and picked him up (R.
888).7 Borton told the jury: "when he first got in the truck, he
told us that he just killed Butch" (R. 888). Borton also
testified that Mr. Rose then asked them if he could use them as
an alibi (R. 890). Finally, Borton testified that Mr. Rose did
not appear to be drunk (R. 894).
During Borton's pre-trial deposition the following exchange
occurred:
Q: (By Mr. Rouson) Have you ever been
convicted of a crime?
A: (By Ms. Borton) Yes.
Q: What kind or what kinds of crimes?
A: Possession of marijuana and a DWI.
Q: Okay.
A: And I have another one, but it was
withheld adjudification (sic).
Q: Are you on probation?
A: Yes.
Q: How long?
7 Inexplicably, the police did not examine the truck for
traces of the victim's blood.
A: Until March of '84.
Q: Is that for marijuana?
A: That was for my other one that they
withheld adjudification (sic).
Q: What kind of case was that?
A: It was an aggravated assault.
Q: Did that occur here in Pinellas
County?
A: Yes. It was Mark and I, we got in a
fight and it was against Mark.
MR. YOUNG: To prevent any problem later
on, why don't you ask if the marijuana charge
was a felony or a misdemeanor?
Q: (By Mr. Rouson) Was the possession
of marijuana a felony or misdemeanor?
A: A misdemeanor.
(R. 208-209)(emphasis added).
At Mr. Rose's trial, during cross examination of Borton, Mr.
Rose's counsel did not ask a single question about Borton's prior
record or any deals she made with the State (R. 896-900).
Poole testified that he and Borton left Ms. Duke's apartment
at around 10:00 p.m. (R. 863-864). After driving for a few
blocks he observed Mr. Rose hitchhiking (R. 864). Poole told the
jury:
Upon seeing Milo Rose, we stopped and he got
into the truck. We picked him up because he
lives below us. And as soon as he got into
the truck and I made my righthand turn to go
across the causeway, just as we started out,
Milo spoke up and told Rebecca and I that he
had just killed Butch, Butch Richardson.
(R. 865).
At trial Poole indicated that Mr. Rose told him that he was
going to use Poole as an alibi (R. 867). However, Poole was
never impeached with the inconsistent statement he gave during
his deposition that Mr. Rose did not ask him to be an alibi
witness (R. 228).
Poole also testified at trial that Mr. Rose was sober, (R.
872); however, during his deposition, when he asked if Mr. Rose
had been drinking, he told counsel that he could "smell booze"
(R. 222).
Again, the witness was not asked about any previous
relationship he had with the State or any specific deals as to
Mr. Rose's case (R. 874-882).
At the conclusion of Borton's testimony, Mr. Rose expressed
his dissatisfaction with Rouson's lack of preparation and
resultant poor performance (R. 901-903). Specifically, Mr. Rose
was understandably upset that Rouson told Mr. Rose he had taken
all necessary depositions when in fact Rouson had failed to take
the deposition of one of the State's eyewitnesses (R. 903).
Rouson responded to these complaints: "I cannot stand, in good
faith, before this Court at this time and state that I can
continue in the purest form of representation that he deserves
and he is entitled to under the current law and under the
Constitution" (R. 914). Thereupon, Judge Schaeffer and Rouson
retired to chambers for an "in camera" discussion. Mr. Rose was
excluded from these proceedings. During the in camera
discussion, Rouson told the judge he was not convinced Mr. Rose
was innocent. ("He told me [Judge Schaeffer] that he was having
a problem with whether or not he felt his client was still -- was
innocent")(PC-R1. 812). Rouson was not sure whether this would
inhibit his performance. After what "[s]ome people might think
that was just subtle arm-twisting" by the judge, Rouson told the
judge he could set aside his feelings and continue to represent
Mr. Rose (PC-R1. 861). Judge Schaeffer recalled reminding Rouson
of his "ethical oath" which would require "vigorous
representation as you would if you thought he was innocent" (PCR1.
813). After Judge Schaeffer's references to the "ethical
oath," Rouson announced he would remain on the case.
Mr. Rose continued to express his concern that he was not
being effectively represented by Rouson (R. 924). Judge
Schaeffer, in an attempt to assuage Mr. Rose's fears, convinced
Mr. Rose that all matters concerning Rouson's possible
ineffectiveness would be addressed in later proceedings and she
would ensure Mr. Rose had counsel to present these matters (R.
924).8
8 The fact that Judge Schaeffer summarily denied all
guilt phase ineffective assistance of counsel claims undermines
her trial statements to Mr. Rose that these issues would be
examined at a later time.
The final piece of evidence the State presented that
implicated Mr. Rose in the crime was the presence of blood on him
when he was arrested (R. 954). Detective Fire testified:
I asked him how many times he was punched.9
He said once in the nose. I told him that
there was blood all over his shirt, arms and
legs, how could that be from a bloody nose?
And he stated that he didn't know, he
couldn't answer that.
(R. 959).
The State never introduced any scientific evidence which
proved that the blood on Mr. Rose was that of the victim.
However, the jury was carefully and improperly led to this
conclusion. The State showed that there were extensive blood
splatters caused by the manner of killing the victim (R. 1055).
The State also claimed that the blood swabs taken from the person
of Mr. Rose were "messed up" because they were "mixed":
Q: Okay, do you also know, from your
investigation, sir, whether any blood samples
of the victim were taken along with the
victim's hair samples?
A: Yes, it was.
Q: Okay, and can I -- what was the
purpose of that?
A: To compare, to see if any of the
blood on the defendant's clothing could have
been from the victim.
* * *
9 Mr. Rose was in an altercation earlier in the evening,
wherein Mr. Rose was punched in the nose while he was attempting
to assist Mr. Richardson, the victim.
Q: Did Technician Bowers take blood
samples from the defendant?
A: He took blood samples, splatterings
on his arms.
Q: Yes.
A: He used the same swab to take
several blood samples from several parts of
the body, and --
Q: Okay, just for what you're saying,
is there a splot here, a splot here, a splot
here, and he took the swab and went here,
here and here?
A: Correct.
Q: Okay.
A: Each swab -- each -- there should
have been a swab used for each time he took a
sample.
Q: Okay, my next question would have
been is that correct procedure?
A: His procedure was not correct, no.
Q: So we have an effect of mixing the
blood, is that correct?10
A: Correct.
(R. 985-987)(emphasis added). The State improperly, and without
proper objection, elicited this testimony from Detective Fire. Rouson
objected to this line of questioning based on hearsay, which the lower
court overruled. However, it is clear that Detective Fire did not
have any expert qualifications which allowed him to testify to the
10 Rouson failed to object to this clearly leading
question.
procedures for collecting and testing blood samples. Rouson failed to
object on these grounds.
Further exacerbating matters, Rouson failed to call the FDLE
serologist who tested the blood evidence and whose own report
concluded that the only blood found on Mr. Rose was his own. (See
Attach. A, FDLE report, and see Attach. B, Affidavit of Dale Nute).
Again, these matters were never explored due to Judge Schaeffer's
summary denial of all guilt phase ineffective assistance of counsel
claims.
Following Detective Fire's misleading and deceptive testimony,
the State rested (R. 990).
Without challenging any of the State's evidence, the defense
rested (R. 999).11
During the State's closing argument, the Assistant State Attorney
vouched for his witnesses when he told the jury: "I submit to you
there would be no evidence that anybody has any interest other than
that of the normal citizen" (R. 1047)(emphasis added).
The jury returned a verdict of guilty (R. 293).
Following the guilty verdict, Rouson sought time to prepare for
the penalty phase (R. 1102-1105). Rouson had never been involved in a
capital case before (PC-R1. 831). The court delayed the proceedings
11 The "adversarial testing" to which Mr. Rose is
constitutionally entitled occurred in less than 200 transcript
pages. This brings new meaning to the adage: "Death is
different."
from July 1, 1983, until July 5, 1983 so that counsel could prepare
(R. 1102-1107). Rouson called an experienced criminal trial lawyer,
Pat Doherty, and explained that he had no mitigation to present and
had up to that point made no efforts to locate any (PC-R1. 928). Mr.
Doherty indicated his willingness to assist and even be co-counsel
(PC-R1. 930). Mr. Doherty did not again hear from Rouson until after
the penalty phase concluded.
During the penalty phase Mr. Rose's trial attorney presented the
testimony of Dr. Vincent Slomin. Dr. Slomin testified regarding his
diagnosis of Mr. Rose's personality disorder and possible treatment
(R. 1275-1293). During his redirect, trial counsel inquired about the
timeframes in which an alcohol induced blackout could occur (R. 1293).
Dr. Slomin told the jury that blackouts could last from a moment to
several hours or even weeks (R. 1293).
After hearing only scant testimony about Mr. Rose's
characteristics, childhood and battle with alcoholism, the jury, by a
vote of nine to three recommended that Mr. Rose be sentenced to death
(R. 310-311).
At Mr. Rose's sentencing hearing, Judge Schaeffer found that the
cold, calculated and premeditated aggravating factor was present (R.
335). She relied on the fact that:
When you met your friends some few
minutes later, you told them you had either
killed or rendered your friend a vegetable.
Thus, it would appear, Mr. Rose that
even you knew what your actions were
calculated to produce.
(R. 336). The Poole/Borton evidence provided strong evidence to
support the CCP aggravating factor used to sentence Mr. Rose to
death.
Furthermore, as to the mitigating circumstances the lower
court made the following findings:
Second, although the doctor and you
testified you had a history of alcohol abuse,
and he suggested you might have had an
alcoholic black-out, he stated this was not
possible when a hypothetical was put to him
regarding your telling your friends what you
had done and trying to set up an alibi just
minutes after the homicide.
Third, your friends, Mark and Becky,
said they saw you just after this happened
and you were not intoxicated.
* * *
This concludes the statutory mitigating
circumstances and there are none.
(R. 337-339)(emphasis added). Again, the Poole/Borton testimony
was relied upon to discount all of the mitigating circumstances.
Judge Schaeffer sentenced Mr. Rose to death (R. 340).
C. THE 1987 3.850 PROCEEDINGS12
On September 15, 1987, Governor Martinez signed Mr. Rose's
death warrant and Mr. Rose's execution was scheduled for November
16, 1987 (PC-R1. 2). At this time, Mr. Rose's counsel, the
12 These proceedings are discussed in some detail because
the lower court relied on the Poole/Borton trial testimony in
summarily denying Mr. Rose's guilt phase claims and in denying
penalty phase relief. In light of the current 3.850 allegations,
those ruling must be reconsidered.
Office of the Capital Collateral Representative (CCR) was
operating under the burden of litigating eight active death
warrants (PC-R1. 654).
On October 2, 1987, Mr. Rose filed an Emergency Motion to
Vacate Judgement and Sentence with Special Request for Leave to
Amend and a Motion for Stay of Execution (PC-R1. 5).
On October 22, 1987, after granting Mr. Rose a limited
evidentiary hearing, Judge Schaeffer stayed Mr. Rose's execution
(PC-R1. 449). On August 2, 1988, Mr. Rose filed a Supplement to
his Rule 3.850 motion (PC-R1. 466-508).
In Mr. Rose's original 3.850 motion and the supplement
thereto, he alleged that his trial counsel was ineffective for
failing to challenge the State's case.
The lower court granted Mr. Rose a hearing regarding the
ineffective assistance his counsel provided during the penalty
phase. In order to support his claim, Mr. Rose presented the
testimony of Terry West Cobb, an attorney who shared office space
with Rouson and who had agreed to "help out" (PC-R1. 935).13 As
the trial date neared, Ms. Cobb found that Rouson was
"unavailable" and placing "responsibility" for Mr. Rose's case on
her shoulders (PC-R1. 936). The weekend before the trial began,
Ms. Cobb ceased her involvement in the case:
13 Rouson was well aware that Ms. Cobb "had never tried a
criminal case or had a jury trial" (PC-R1. 849). Despite this
knowledge, Mr. Rouson relied on Ms. Cobb to act as co-counsel in
his first and only capital case.
I just was not at all prepared or
competent or experienced enough to be
representing anybody in a criminal case, much
less a capital case, and I felt like I was
being pushed into that direction more and
more, and I was not interested in having that
happen.
(PC-R1. 935-36).
At the evidentiary hearing, Mr. Rose also presented the
testimony of mental health experts in order to illustrate trial
counsel's failure to establish mitigation. One of those experts,
Dr. Krop testified:
Q. In evaluating Mr. Rose, what did
you find?
A. Well, in terms of just some
descriptive data to summarize Mr. Rose's
background, I would say that he derives from
an extremely unstable background. He was not
raised by his biological father, although in
my discussion with Mr. Rose, it appears he
didn't know that this person was not his
biological father for quite a while.
It is clear from discussions with a
number of family members and affidavits, that
Mr. Rose's parents were alcoholics. There
was considerable emotional abuse, some
physical abuse, but I would say the abuse was
more or less more of the emotional and verbal
nature than physical, although I would expect
that Mrs. Rose, the mother, would be viewed
as a child abuser, at least by the current
standards, in terms of the physical beatings
she gave Mr. Rose.
He was viewed as different by his
parents. Some of the comments they made --
they made some very derogatory comments.
They talked about the color of his skin.
They talked about him being their nigger.
They talked about him being the black sheep
of the family, and there was a tremendous
amount of derogatory and critical statements
about Mr. Rose when he was growing up.
That type of discrimination was also
compounded by some peer and some self
discrimination in that Mr. Rose, himself,
viewed himself as different, and this would
be expected based on the parents' perception
of him and some of the verbal abuse he
received.
He was a very sickly child. He was a
produce [sic] of forceps delivery. The
records, I understand, the various
information I reviewed, suggests that it was
a very difficult delivery. Mrs. Rose,
apparently, was unconscious at the time of
the birth, and it was a very difficult
delivery to have, and, thus, forceps delivery
was required.
He was sickly in terms of he had
rheumatic fever. There was suspected polio
when he was younger. He had a number of high
fevers. He had mumps when he was, I believe,
seven or eight years old. He was in the
hospital, I think, about nine or ten -- I'm
sorry. He was in the hospital for a
significant period of time. I believe the
record suggests six months or longer in which
he was running a high fever and had
convulsions. The record shows that he had a
105 or 105 [sic] fever.
It is not clear how long he ran this
fever, but he did have convulsions when he
had fever.
When he was seven or eight years old, he
had an incident in which a nail was driven
into his skull.
* * *
It is not totally clear when he started
drinking and using drugs, but it looks like
from the records and his recall and talking
to family members, that he began using drugs
and sniffing glue around the age of 12, and
drinking around that same age, and at that
juncture he developed into a chronic pattern
of drug abuse and alcohol abuse resulting in
heroin addiction, shooting up.
He finally received some type of
treatment in a drug abuse program in which, I
believe, he was involved in a residential
program for several months; I believe three
months. At that time, they were treating
heroin addiction by substituting it with
methadone maintenance, and he became addicted
to methadone and required in-patient or
residential treatment, but from the record, I
can't see any other drug treatment or alcohol
treatment other than his participating on an
intermittent basis in AA.
* * *
In conclusion, based on the findings of
the neuro-psych testing I did, because he
does well on motor perception ability, there
is some evidence, in my opinion, of some
degree of organic brain damage. It is
difficult to determine exactly the nature of
the brain damage. It is difficult to
determine the ideology of the brain damage,
but certainly the evidence suggests there is
minimal brain damage existing, most likely in
the right temporal lobe area, but that would
need to be documented further in neurological
and objective types of testing.
In terms of ideology and terms of
explanation as to why he is brain damaged,
there are several possibilities. He was born
with a forceps delivery, and there is always
a high probability of brain damage with
forceps delivery. This is a procedure which
is rarely used any more.
There was a nail driven into his head.
There was the time when he ran 104 or 105
degree fever with convulsions, which is also
associated with temporary or permanent brain
damage. Chronic alcohol or drug abuse, which
can lead to brain damage, and he had an
automobile accident about a year prior to the
incident, itself, but I would say that that
probably did not either result in brain
damage. It is possible that it exacerbated
the problem, but since these deficits were
seen earlier than that, most likely the cause
of the organic problem would have been one of
the other things I mentioned.
In terms of final diagnosis, I would
diagnose Mr. Rose, from the DSM-III or DSMIII-
R, as chronic alcohol abuser, possibly a
dependent personality disorder, but
essentially the most primary diagnosis would
be organic brain syndrome and, also, the
chronic alcohol and drug abuse.
(PC-R1. 79-91).
In addition, Dr. Krop stated:
Q. I believe that you discussed, also,
the relationship between the brain damage and
the alcohol. Do they have an additive effect
on each other?
A. I think the research shows that
persons with brain damage are more
susceptible to the effects of alcohol or drug
abuse, just like a person who is, for
example, taking psychotropic medication or
any other prescription medication, they are
warned not to drink because of the
unpredictable behaviors that might result.
* * *
Because of the nature of his particular
brain damage, it is really difficult for me
to say what the exact effect would be. I can
only indicate again, generally, that persons
with organic brain damage are more
susceptible to an intoxicated state or,
perhaps, the unpredictable effect of alcohol
on that given individual. In this given
case, I can't be any more specific than that.
Q. In terms of intoxication in this
case, what did you find that indicated that
Mr. Rose was intoxicated on the night of the
offense?
A. Well, there were several
indications that he was intoxicated. First
of all, he reported from his ability to
remember and going through the chronology of
his behavior that -- I tried to add up as
best I could in terms of the amount of
alcohol he had, and it appears that from five
o'clock on, which was the time, I believe,
that he left the plasma center, he probably
had about 20 beers. He can remember certain
specific numbers and also sharing pitchers
with other people at various bars, but from
the time he first went to a bar, which was
about after five, until the time he indicated
he went home, he probably had about twenty
beers. That is the best estimate I could
come up with for the information I had.
I understand from reading the testimony
from two of the witnesses, one of the
individuals who claim that Mr. Rose wanted
them to alibi for him, he indicated he was
not intoxicated. However, the police reports
indicated -- and that was several hours later
when he was waked up and arrested for the
first time -- the police indicated he had a
strong smell of alcohol on his breath, and
they had other indications in terms of that
he was drinking. I don't think they
concluded he was intoxicated, but I think
they concluded he had been drinking heavily.
There were some other individuals who
had watched him drinking and observed him
drinking, from the testimony, and from the
other information that I reviewed, apparently
he was observed to be drinking throughout the
night.
* * *
Q. In any case, besides mitigating
factors there are aggravating circumstances.
Were you able to review and reach any
conclusions with reference to the cold,
calculated premeditation?
A. I would say that I could not reach
a conclusion. However, I can speak in terms
of a person who is intoxicated, a person who
suffers from brain damage in which poor
judgment, irrational thinking and so forth
exists, there is a less likelihood of an
individual being able to form that particular
intent and developing a behavior pattern
which is cold and calculated.
I guess from the information I reviewed,
it was very difficult for me to determine
what the individual -- whether it was Milo or
someone else. Of course, Milo is still
denying his involvement in the offense. It
is very difficult to determine the
rationality of the actual behavior.
From what I can tell from the testimony
of the three or four witnesses who observed
the behavior, they indicated that the
perpetrator said something like, "Get up,
Pig. Get up." He got up and went out and
found a brick and came back and hit the
victim with the brick three, four, six times,
depending on who was testifying.
There seems to be some inconsistency in
terms of why an individual would be trying to
get a person to get up and go and kill him.
There seems to be an irrationality in terms
of that conclusion, although there may be
information I don't have in terms of that
connection.
Also, in talking to Milo, from his
camaraderie with the victim during the day,
helping him out during the day -- helping in
terms of a fight and so forth -- I did not
see the rationality of Milo at that point in
time killing him.
So if, in fact, Milo is guilty of this
crime, irrationality may be a subject of a
function of his drinking, of the brain
damage, and some of the other factors that I
have referred to.
(PC-R1. 1103-08)(emphasis added).
Initially, Dr. Krop believed that Mr. Rose may have experienced a
blackout during the commission of the crime (PC-R1. 1164-1165).
However, he rescinded this conclusion when he was confronted by the
alleged statement Mr. Rose made to Poole and Borton shortly after the
crime (PC-R1. 1183). Dr. Krop determined that because "he spoke to
these two people [Poole and Borton] in the truck, in my opinion, the
black-out would not be substantiated" (PC-R1. 1183).
In addition to Dr. Krop, postconviction counsel also presented
the testimony of a psychiatrist, Dr. Robert Fox, to discuss mental
health mitigation (PC-R1. 1272-1401). Dr. Fox testified that Mr. Rose
may have suffered an alcohol blackout (PC-R1. 1349-1350).
In addition to the testimony of the mental health experts,
several family members also testified regarding the circumstances of
Mr. Rose's childhood and alcohol problems (PC-R1. 998-1010, 1011-1041,
1041-1047).
Rouson testified at the evidentiary hearing (PC-R1. 828-904). In
discussing Mr. Rose's allegations, Rouson told the lower court:
You know there was an interesting theory that
the -- Mr. McClain, in his motion, they
accused me of learning the case as I tried
the case. In one sense that is true.
Because in the middle of the trial I
discovered that this crime very well could
have been committed by Mark [Poole] and Becky
[Borton].14 And that became part of my
14 Despite Rouson's acknowledgment that he had an
"epiphany" during the middle of the State's case-in-chief that
defense. After reviewing the depositions --
but the way they testified on the stand,
which was different from their depositions,
made this come to light.
And Mark had dark hair, shaggy hair,
beard, mustache, all these features that
these eye witnesses had described, and they
were in close proximity to the crime. They
picked him up a couple of blocks away,
alleged that he was hitchhiking and claimed
that he made this statement.
(PC-R1. 891)(emphasis added).
Despite all of the evidence Mr. Rose produced at the
evidentiary hearing, the lower denied relief (PC-R1. 560-565).
Prior to the hearing the lower court had summarily denied
Mr. Rose's guilt phase claims of ineffective assistance of
counsel.
Postconviction counsel was prepared to prove that one of the
areas where trial counsel's performance was deficient was in
failing to challenge the inference regarding the blood evidence
at trial (PC-R1. 726-734). The fact that Mr. Rose had blood on
his clothes and on his person became a prominent feature of the
trial (R. 959). It was the only physical evidence used by the
State to link Mr. Rose to the crime.
The repeated references to the blood on Mr. Rose combined
with Detective Fire's unsubstantiated assertion that there was
too much blood present for the source to be a bloody nose,
Poole and Borton very well could have committed this crime,
Rouson did absolutely nothing to develop or present this theory
for the jury's consideration. (See Attach. C).
provided very strong inculpatory evidence. It appeared that the
blood had to be from the victim, Mr. Richardson. No plausible
explanation was offered by the defense.
In his initial postconviction proceedings, Mr. Rose explained the
importance of the Tampa Regional Crime Laboratory report prepared by
Crime Lab Analyst Kathy M. Guenther (PC-R1. 360-369). Mr. Rose
asserted that the report contains incredible exculpatory evidence.
The lab report prepared by Ms. Guenther indicated that all blood typed
from Mr. Rose's person and items allegedly carried by him had one
blood type, "O". The blood from Mr. Richardson, and from all exhibits
from the scene which contained blood which was analyzed for type, were
one blood type, "A".
When ABO type "O" blood is mixed with any other type, the other
type is detected. Mr. Rose included an affidavit from a forensic
scientist and former FDLE agent, Dale Nute, that included the
following conclusions regarding the blood evidence:
6. While using one swab to take several
samples from different parts of a suspect's
body is not the best procedure, it did not
result in any "mixing" of Mr. Rose's and Mr.
Richardson's blood according to the analysis
conducted by the Tampa Regional Crime Lab.
7. Assuming that the blood typing done at
the Tampa Regional Crime Laboratory is
correct, the results indicate that Mr. Robert
Richardson had ABO blood type "A" (exhibit 1,
liquid blood sample).
8. All blood samples taken from Mr. Rose
(cotton swab) and items he had on him (paper
tissues and receipt from blood plasma bank)
typed ABO type "O" when analyzed. No ABO
type "A" blood was found anywhere on Mr. Rose
or objects in his possession.
9. When AB0 type O blood is mixed with any
other type, the other type is detected, The
absorption-elution, antigen-antibody testing
system used in this case detects the blood
group antigen factors of A, B and H.
Detecting only the blood group factor H
results in the conclusion that blood group O
is present. If either the factor A or B were
present, then the resulting conclusions would
be that blood group A or B respectively was
present. If both of the factors A and B were
present, then the resulting conclusion would
be that blood group AB was present.
10. From the evidence available to the
State, there is no reasonable basis to
believe that the blood swabbed from Mr.
Rose's person was anything other than his own
blood. "Mixing of blood" is apparently
disproven by the physical evidence.
(PC-R1. 370-373)(emphasis added).
Postconviction counsel pled that trial counsel failed to
challenge Detective Fire's blatantly incorrect statement of the
value of the blood taken from Mr. Rose's arm. Because of trial
counsel's lack of knowledge and preparation, the jury and the
court never knew that the evidence was not "messed up"; that a
crime lab serologist had examined the evidence; and that the lab
results provided, in Rouson's reinforced words, "pretty strong
evidence" (R. 1065). It is "pretty strong evidence", but of
innocence, not guilt.
Postconviction counsel also alleged that Mr. Rose's trial
counsel was ineffective for not properly presenting the evidence
of Mr. Rose's intoxication on the night of the crime (PC-R1. 693-
698). Alcoholism and alcohol intoxication is traditionally
relevant in first-degree murder cases. First-degree premeditated
murder is a specific intent crime: the State must prove beyond a
reasonable doubt that the accused premeditatedly intended to
kill. Voluntary intoxication is a "defense" to any specific
intent crime, including premeditated murder, because intoxication
may prevent the formation of specific intent.
When intoxication is raised by the evidence during the trial
of a specific intent crime, the jury must be instructed that
intoxication can be considered a bar to conviction. At the time
of Mr. Rose's trial in 1982, the law of Florida was clear that
premeditated murder was a specific intent crime, and that an
appropriate jury instruction was required when intoxication was
raised.
An intoxication "defense" requires investigation efforts and
preparation, with the assistance of a competent, independent
defense mental health expert.
Witnesses as to intoxication the night of the murder could
have been found with very little effort:
1. I, Paul Harvill, am an investigator
employed by the State of Florida at the
Office of the Capital Collateral
Representative (CCR), 225 West Jefferson
Street, Tallahassee, Florida 32301.
2. Calvin Plyler, according to
Clearwater Police Department reports, saw
Robert "Butch" Richardson and Milo Rose in
Mano's Pub the evening of October 18, 1987.
Mr. Plyler also identified the body of Mr.
Richardson. I located Mr. Plyler by phone in
the Kannapolis, North Carolina area.
3. Mr. Plyler stated to me that he used
to work at Mano's Pub, although on the
evening of October 18, 1982 he was not
working and was at Mano's Pub and Angel's
Place during the evening. He said that when
he saw Robert (Butch) Richardson and Milo
Rose at Mano's Pub, "they were really smashed
and still drinking" when he left the bar
about 9:00 to 9:30 pm. They had been
"drinking all day". Butch and Milo were run
out of Mano's Pub because they became too
drunk.
4. Mr. Plyler did not talk with any
attorneys concerning the case; he spoke only
with a detective.
(PC-R1. 317-319).
Also, Barbara Richardson stated:
4. We just didn't have a lot of money.
Maybe because of this, or for whatever
reason, Milo was drinking a lot then. He had
stopped going to AA about three weeks before.
5. October 18, 1982 seemed like any
other day, until late that night, when I was
told that Butch had been killed. I stayed
home that day. Butch, Milo, Mark Poole and
Becky Borton left the house that morning.
That was the last time I saw Butch alive. I
didn't see Milo again until later that
evening. Mark and Becky came back about an
hour after they left. They had been
drinking. Mark and Becky left again a short
time later. They came back with Milo later
that night. Butch was not with them.
6. When they came back, I wondered
where Butch was. No one seemed to know. I
could tell that Milo had been drinking again.
He was very drunk. Soon after coming home,
Milo passed out on our bed with his clothes
on. The only time that Milo went to bed with
his clothes on is when he would pass out.
(PC-R1. 320-322)(emphasis added).
Mr. Rose's prior counsel was also provided with an affidavit
detailing the abundance of voluntary intoxication evidence developed
which Rouson did not pursue:
1. My name is Wayne Shipp. I am a
member, in good standing, of the Florida Bar
. . . .
* * *
3. Shortly after Mr. Rose was arrested
for the October 18, 1982 homicide of Robert
(A.K.A. Butch) Richardson, Jr., I became
involved in his case. The Office of the
Public Defender was appointed to represent
Mr. Rose and Ron Eide and I were assigned the
case. Ron and I were members of the six to
eight person capital team organized by the
Chief Assistant Public Defender, Tony
Rondolino. While we did other types of
cases, we specialized in capital cases. This
group was organized to cope with the special
knowledge and skills required to litigate
capital cases.
4. I deposed several witnesses in Mr.
Rose's case and was kept informed of the
progress of the investigation conducted by
the public defender investigators.
5. In January, 1983 the Office of the
Public Defender withdrew because of a
conflict of interest and private counsel was
appointed to represent Mr. Rose. Mr. Rose
was represented by two private attorneys who
subsequently withdrew. Darryl Rouson was
then appointed in the spring of 1983 and did
represent Mr. Rose at trial.
6. Although I was lead counsel and had
done or supervised the initial investigation
of this case and Mr. Rouson wasn't appointed
until about six months after the crime
occurred, Mr. Rouson did not contact me to
discuss the case in any detail. I did talk
to Mr. Rouson as I used to see him fairly
often, and we may have exchanged a passing
word or two, but we never had any substantial
discussion concerning this case. Our office
had offered to assist Mr. Rouson as we knew
he had never tried a capital case before.
Mr. Rouson never availed himself of our
offer.
7. I was able to watch part of the
trial and remember wishing that Mr. Rouson
had talked to me. In particular, two things
stood out. I know that we had documented
from the witnesses we talked to that Mr. Rose
had had at least twenty (20) beers the day of
the crime. Intoxication could have been
proven, not just allowed.
8. I also was surprised and
disappointed that Mr. Rouson put on a
psychologist who was poorly prepared and made
very damaging statements about Mr. Rose.
(PC-R1. 313-316)(emphasis added).
While trial counsel did belatedly seek a psychological evaluation
of Mr. Rose, he testified that his primary interest was "Just knowing
if he could stand trial and whether or not he could effectively or
meaningfully assist me" (PC-R1. 844). This was the first time trial
counsel had ever used a court-appointed mental health expert (PC-R1.
846). He did not give the psychologist any background material (PCR1.
847). He failed to develop the evidence necessary for the expert
to testify as to voluntary intoxication and its impact on Mr. Rose's
ability to form specific intent.
Had counsel adequately represented Mr. Rose, he could have
presented a mental health expert's opinion:
Based on Mr. Rose's behavior and
alcohol/drug consumption the day of the
incident, it is this examiner's opinion that
Mr. Rose was unable to control his conduct
and most likely experienced a black-out at
the time of the offense. He was likely
extremely confused and in a severely
intoxicated state, thus indicating that his
judgment would have been significantly
impaired. He was under considerable
emotional strain and this most likely
affected his judgment and actions at that
time. In view of my testing and evaluation,
it is certainly likely that if Mr. Rose
committed this offense, he did so in a highly
intoxicated condition, and he was not able to
form the specific intent to kill. This is
especially probable if Mr. Rose's history
indicative of brain damage is accurate.
(PC-R1. 357-358).
At the Motion to Stay hearing, Mr. Rose's postconviction counsel
argued why Mr. Rose was entitled to a hearing on his ineffective
assistance of counsel claim regarding failure to properly present an
intoxication defense. After the argument, Judge Schaeffer suggested
that the defense would not have helped because:
It is the fact that very soon thereafter he
was picked up by a couple of his buddies and
he said, "How about giving me an alibi for
the night. I wasn't there. I just killed
whatever the guy's name was. I either killed
him or left him a vegetable."
(PC-R1. 696).
The State also argued against an evidentiary hearing and
relied on the fact that Poole and Borton testified that Mr. Rose
was not intoxicated (PC-R1. 699). The State also argued that Mr.
Rose's attempt to establish an alibi negated trial counsel from
being ineffective because that was inconsistent with an innocence
defense (PC-R1. 702). However, this argument again relies on the
statements made by Poole and Borton that Mr. Rose requested that
they provide an alibi for him.
In summarily denying Mr. Rose's guilt phase ineffective
assistance of counsel claim, Judge Schaeffer opined:
I believe that, my recollection of the
eyewitness testimony is Mr. Rouson made a lot
of hay with it.15 He made a lot of hay as to
discrepancies in their testimony of the
various and sundry things. And you can make
an awful lot of hay when you have three eye
witnesses and they all say that may be, it
may have been fifty feet, one hundred fifty
feet or twenty feet. But all three say that
is the guy. And you have two people who say
he he (sic) jumped in the car and said he
just killed Butch and left him a vegetable,
and would they provide an alibi.
I don't know whose blood it was is going
to make too much different (sic). I don't
think it is going to make any difference.
And I don't think if we knew it was one
hundred forty-two feet exactly, that would
make any difference.
(PC-R1. 756-757).
15 Judge Schaeffer relied on her recollection to conclude
Rouson "made a lot of hay with it." The record speaks for itself
that this recollection was inaccurate. Furthermore, had Judge
Schaeffer granted an evidentiary hearing on guilt phase
ineffectiveness, postconviction counsel could have brought to the
court's attention trial counsel's severe deficient performance in
his cross examination of the eyewitnesses.
In 1993, this Court affirmed the lower court's order denying
postconviction relief. Rose v. State, 617 So. 2d 291 (1993),
cert denied 510 U.S. 903 (1993).
D. THE 1996 3.850 PROCEEDINGS
After instituting federal habeas corpus proceedings, Mr.
Rose learned that Borton and Poole had made a deal with the State
to receive lenient treatment in exchange for their testimony
against Mr. Rose. Mr. Rose informed his counsel that he had
learned this through talking with Mr. Richard W. Rhodes, another
death sentenced inmate, who told him that Borton had conceded the
existence of a deal when she was deposed in the Rhodes case.
Counsel investigated and discovered that Borton and Poole had an
extensive relationship with the State. (PC-R2. 1-25, 187-234).
On December 20, 1996, Mr. Rose filed a Rule 3.850 motion
that included the newly discovered information regarding Becky
Borton (PC-R2. 1-25).
Mr. Rose's Rule 3.850 motion included the relevant portion
of Borton's deposition given in the Richard Rhodes capital murder
prosecution:
Q. Have you ever been arrested?
A. Yes.
Q. What for?
A. DWI, two possessions and, well, I
got a withheld adjudication on an aggravated
assault that was against Mark. It was really
just a quarrel, and I kind of got the bad end
of it.
Q. The two possession charges were
misdemeanors?
A. Yeah, but -- well, one of them was
fifty-two grams. And it was cut to a
misdemeanor for my testimony in the Rhodes16
[sic] trial.
Q. Who'd you talk to?
A. About what?
Q. About getting your charges reduced.
A. I guess Bruce Young did it.
Q. You possessed fifty-two grams but
reduced to a misdemeanor?
A. Yeah, it wasn't mine. It was
Mark's. He asked me to put it in my purse.
Q. What happened to you as a result of
that misdemeanor?
A. Well, I pleaded guilty to the
aggravated assault, because I was living in
Indiana, and having to drive back down here
about three times. So I pled guilty, and I
had eighteen months probation with that. So
I got a year consecutive.
Q. A year consecutive probation?
A. Yeah, was altogether.
Q. And you dealt with Mr. Young on
that?
16 A careful reading of the deposition reveals that here
Borton was referring to the Rose case. Furthermore, the State
has conceded that Borton was referring to the Milo Rose case and
the "court reporter mistook "Rose" for "Rhodes"" (PC-R2. 328).
A. Uh-huh.
Q. Are you still on probation now
then?
A. Yeah. I have till August, and I
have a hundred hours of community service
left to do. And that's it.
Q. Did you have any of those other
charges pending at that time? Was the DWI
pending during that time?
A. I got a DWI in May of '83.
Q. So that was all over with?
A. I got it right before the trial
started in June.
Q. On Rhodes [sic]?
A. Uh-huh, yeah, on Rhodes [sic].
Q. What happened on that DWI charge?
A. I got the minimum.
Q. $250 fine, six months revocation of
license?
A. Yeah, but then I have three alcohol
counts. I had to for extra counseling with -
- I didn't need it, because I don't even
drink.
Q. What happened to the other
possession of marijuana charge?
A. That's my hundred hours community
service, and I had five days in jail.
Q. When did that come up?
A. That was in August, I think it was
-- I went to court for that.
Q. August of last year?
A. Uh-huh.
Q. Did Mr. Young help you out on that?
A. No. I still got a hundred hours
community service.
Q. Did you ever tell him about that
one?
A. No, I didn't tell him about that.
Q. They didn't violate your probation?
A. Yeah, but I didn't get violated
really until like the day I was in court.
They violated me for not having stuff done on
my DWI. So within the time they violated me,
I went to court and I went and got everything
done. So they terminated my probation on the
DWI right then. And the probation lady stood
up and said I had been violated for a
possession charge. So he extended my DWI
probation for another year.
Q. You say he did. Who did?
A. The judge extended my DWI probation
to run concurrent with my possession
probation.
Q. Did you have an attorney
representing you?
A. No.
Q. Did Mr. Young come to court or
speak in your behalf?
A. (Shakes head.)
Q. You didn't let him know about that
one?
A. Well, yeah. I didn't really say --
I didn't threaten him, but I asked him if he
would do something about it. He said he
wouldn't do anything about it for me.
Q. You said you didn't really threaten
him, but what were you going to do if he
didn't help out?
A. I don't know. That's been awhile
too. I didn't really say I wouldn't testify
or anything, because he got mad at me and
told me he would have a cop out where I work
with a warrant for my arrest.
Q. If you didn't testify?
A. Uh-huh.
Q. Did you tell him your memory might
get bad?
A. I think so. That's what I said.
Q. And he said he would send a
policeman out to get you in an hour?
A. Yeah. He said he would have a cop
out there with a warrant for my arrest in an
hour.
Q. How many times did you ever talk to
Young about the case or about your cases?
A. About Rhodes?
Q. Or about your cases, all of them?
A. I always cooperated with him on
them.
Q. How many conversations did you have
with him?
A. Quite a few. I can't really say,
you know, because when we were in court and
stuff I seen him almost every day for a week.
Q. That's the Milo Rhodes [sic]
case?17
A. Uh-huh.
Q. I'm talking about this case.
A. Just the one time he called me at
work.
Q. Then you contacted him a couple of
other times about your cases?
A. Tried to, yeah.
Q. But you had talked to him sometime
obviously?
A. Yeah, a few times.
Q. One of them was one time when you
said you might forget or you might not
testify?
A. Uh-huh. I think Mark got a warrant
out for his arrest down here.
Q. Down here?
A. Yeah, that's why he took off. He
was going to come back.
(State of Florida v. Richard W. Rhodes, Case no. 84-03982,
Transcript of Borton deposition)(emphasis added) (PC-R2. 3-8).
Mr. Rose's Rule 3.850 motion also included the text of an
affidavit Borton provided Mr. Rose's collateral counsel,
corroborating the testimony she gave in the Rhodes case:
I, Rebecca Borton, having been duly
sworn,hereby depose and say:
17 Should read "Milo Rose." See also fn. 16.
1. My name is Rebecca Borton and I
live in the state of Indiana. In March of
1985 I gave a deposition in the case of State
of Florida v. Richard Rhodes. In my
deposition I stated that in 1982 I was
arrested and charged with two illegal drug
possessions. One of the possessions was 52
grams of marijuana and this charge was
dropped from a felony to a misdemeanor for my
testimony in State of Florida v. Milo Rose.
This was a true statement and I would have no
reason to not tell the truth when I gave this
statement. My memory would have been much
better in 1985 about the 1982 event that it
is now.
(PC-R2. 9).
Prior to amending his Rule 3.850 motion, Mr. Rose made
several public records requests in order to determine the extent
of the relationship between Poole, Borton and the Pinellas County
State Attorney's Office. Following proceedings on Mr. Rose's
Motion to Compel disclosure of the records of the Office of the
State Attorney, which included an ex parte in camera inspection,
held over counsel's objection, of materials claimed exempt by the
State Attorney, the lower court ordered the disclosure of
voluminous additional materials (PC-R2. 107-109).
On September 1, 1998, Mr. Rose amended his Rule 3.850 motion
with information further demonstrating Poole's relationship with
the Pinellas County State Attorney's Office (PC-R2. 187-317). A
witness document which had been produced pursuant to the lower
court's order included the following information18:
18 Mr. Rose was not provided the entire document, just a
single page of what is obviously a larger document. Mr. Rose was
also not provided any handwritten notes associated with the
preparation of this document.
Mark Poole, also on probation, has called
Porter and told Porter that he has an eye
witness to all of this, but absent some deal
or some money from the State, he is not going
to reveal the source. This assistant asked
Becky Borton about that information and Becky
Borton states that Mark did in fact, tell her
that he did have such information, but he
refused to tell her exactly what it was,
stating that he would just tell the state and
help you out. Becky says that Mark is in
Illinois now, at home on a DUI, and also has
infectious hepatitis, and consequently, will
be out of circulation for a while.
(PC-R2. 190)(emphasis added).
The State responded on December 7, 1998 (PC-R2. 323-698).
In its Response the State contended that the information
regarding the deal Borton made was not newly discovered (PC-R2.
327-331). In addition, the State attempted to refute the
evidence that Borton received a deal from the State in exchange
for testimony in Mr. Rose's case (PC-R2. 332-336). In doing so,
the State attached several exhibits, including portions of
several trial witnesses' deposition testimony, orders from Mr.
Rose's previous postconviction proceedings and court records
concerning Borton (PC-R2. 339-698).
On December 17, 1998, the lower court held a Huff hearing
(PC-R2. 702-807). Mr. Rose was not present for the hearing,
despite his request that he be allowed to attend and counsel's
attempts to secure his live or telephonic presence in some manner
(PC-R2. 699-701).
At the Huff hearing, Mr. Rose's counsel reminded the court
that the evidence used to convict Mr. Rose consisted of three
components: eyewitness testimony, testimony that Mr. Rose had
blood on him when he was arrested and the testimony of Poole and
Borton that Mr. Rose had confessed to them (PC-R2. 711). Counsel
also reminded the court that "no evidentiary hearing has ever
been conducted regarding post-conviction allegations attacking
these three components" (PC-R2. 711).
While addressing the court regarding the information
advanced in Mr. Rose's initial Rule 3.850 motion, postconviction
counsel reminded the lower court that a cumulative error analysis
was required under Gunsby v. State, 670 So. 2d 920 (Fla. 1996)
(PC-R2. 714).
Firstly, postconviction counsel argued that Borton's
conviction for aggravated assault was known to the State and
could have been used to attack the credibility of Borton (PC-R2.
716). Even more egregiously, Borton's charge of possession of
fifty-two grams of marijuana was "cut to a misdemeanor for [her]
testimony in the Rose trial" (PC-R2. 716-717), and Mr. Rose was
never informed about this deal.
Postconviction counsel told the lower court that Borton was
arrested on September 27, 1982 (PC-R2. 718). According to the
property receipt from her arrest, the amount of marijuana
confiscated from Borton was fifty-two grams (PC-R2. 718). This
amount supports Borton's deposition testimony that a deal was
made since the amount does not reflect a proper disposition of
the charge (PC-R2. 718). Furthermore, counsel pointed out that
Borton was also on felony probation at the time of her arrest
(PC-R2. 719). Counsel argued:
It should be noted that Becky was
arrested just weeks before the trial for DUI
and her explanation of the DUI charge is
extremely relevant. It's May of '83, and in
her deposition she discusses, in fact, that
this is when she and the prosecution really
started tangling over her cooperation in the
Rose case and whether or not she would, in
fact, testify.
* * *
The fact that she was on probation from
a felony aggravated assault and was then
arrested for possession and then arrested for
the DWI raises a serious question as to why
there was no violation on the ag assault
which was a result from the previous charge.
(PC-R2. 719-721)(emphasis added).
Counsel also argued that Poole had been threatened with
arrest unless he testified (PC-R2. 722). In fact, Poole was
arrested five (5) days before Mr. Rose's trial on making a false
police report (PC-R2. 722).
The State's Response included thirty-four (34) exhibits,
most of which were non-record material (PC-R2. 724). Therefore,
counsel argued that the State's reliance on the non-record
materials was a concession that a factual issue existed and an
evidentiary hearing was required (PC-R2. 724).
During the discussion about Borton's arrest for possession
of marijuana, the State informed the court that Borton was
arrested on September 27, 1982 (PC-R2. 746). The FDLE report
indicating possession of a felony amount of marijuana was signed
on October 12, 1982 (PC-R2. 749). Mr. Richardson was killed on
October 18, 1982 and Borton was charged with a misdemeanor on
October 21, 1982 (PC-R2. 746-747).
As to these circumstances the lower court stated:
I'm going to consider whether to grant or
deny an evidentiary hearing -- particularly
if I'm considering denying it -- that it
would be appropriate to consider this in the
light most favorable to the defendant, which
would be -- based on the affidavit, based on
the document I have seen -- which would be
that she was arrested for a misdemeanor prior
to the murder and that subsequent to the
murder she was charged with a misdemeanor
consistent with her arrest while there was a
possibility she could have been charged with
a felony and it's possible that somebody told
her that they would give her this break.
* * *
So if anything, it seems to me -- now, I
don't know -- you see, it's very difficult
for me to know without an evidentiary hearing
whether Mr. Young explained that he was going
to give her this agreement or not.
But, as I said, let's assume that all of
this happened and Mr. Young said you've been
cooperative so I'm going to let this be filed
as a misdemeanor and you're on probation and
this will go well for you. But we can't get
around, and what no lawyer could have gotten
around is all this information after all this
impeachment -- certainly it should have and
would have -- if I had had it, I would have
used it if I had been the trial lawyer -- the
problem is how could you get around the fact
that on the night that this occurred, uh --
first of all, this lady would have believed
that she was charged with a misdemeanor.
That was what she was charged with.
(PC-R2. 751-753)(emphasis added).
The lower court suggested that the fact that Borton may have
had a deal with the State and could have been impeached with that
information would not have been significant to the jury (PC-R2.
756-758).
Furthermore, Judge Schaeffer mistakenly believed that Mr.
Rose was not entitled to a hearing because Rouson could have
asked Borton about her pending charges during her deposition (PCR2.
762). During the Huff hearing, Judge Schaeffer commented:
. . . another point that the State makes here
is that this was a bigger (inaudible) to Mr.
Rouson.
In other words, this charge was out
there. He could have asked her, if he took a
deposition, "Do you have any charges pending?
What are they?" and checked into them.
(PC-R2. 762). However, the trial court ignored the fact that
during Borton's deposition, Rouson was inquiring about Borton's
prior convictions and pending charges when Mr. Young interjected,
"why don't you ask if the marijuana charge is a felony or a
misdemeanor?" (PC-R2. 766). When Rouson asked that question,
Borton claimed that the charge was a misdemeanor (R. 208-209).
In addition, the trial court ignored that fact that Mr. Rose's
original trial attorney filed a Demand for Discovery and
Favorable Material on November 16, 1982 (R. 53-57). In that
motion trial counsel requested:
21. The names of any persons who have
been promised anything for their statements
or testimony relating to this cause,
including (but not limited to) offers or
promises of: money, preferred treatment,
reward, immunity, leniency, favorable
recommendation, or other benefits, identified
as such.
22. The names of persons who have
inducements presented to them whether in the
form of promise or otherwise, or who the
State knows or has reason to believe may
expect such inducement, identified as such.
23. The names of any witnesses herein
who has been pressured or threatened with
prosecution by the State, any of its agents,
or other Law Enforcement agencies, identified
as such.
(R. 55). The State never provided trial counsel with any
information regarding the Demand. The State thwarted trial
counsel's attempts to learn of Borton's deal. Despite all of the
evidence, Judge Schaeffer determined: "I think I'm going to deny
you an evidentiary hearing on this point" (PC-R2. 763).
On February 22, 1998, the lower court entered an order,
prepared by the State19, summarily denying Mr. Rose's Rule 3.850
motion (PC-R2. 843-847). The court found:
19 Mr. Rose's counsel strenuously objected to the State's
preparing the order denying relief (PC-R2. 801-806). Judge
Schaeffer originally agreed to prepare the order herself, however
later changed her mind and instructed the State, by letter, to
prepare the order (PC-R2. 817-818).
Even assuming for purposes of this
nonevidentiary hearing that the State gave
Ms. Borton the deal of charging her only with
misdemeanor possession for which she was
arrested, it would not have affected the
outcome of Defendant's trial because Poole
and Borton gave the same information to the
police on the night of the murder, October
18, 1982, as later given in deposition and at
trial.
(PC-R2. 845). Attached to her order were several non-record
documents regarding the arrests and charges of Poole and Borton
(PC-R2. 848-866).
Following the entry of Judge Schaeffer's order, Mr. Rose
filed a Pro se Attachment to Huff Hearing After Review of Hearing
Transcript In Lieu of Prejudicial Effect Of Not Being Allowed
Privilege of Attending in Order to Assist Attorney(s) with
Evidence Requiring Court to Grant Evidentiary Hearing on
Guilt/Innocence (PC-R2. 893-907). In essence, and albeit pro se,
Mr. Rose requested that Judge Schaeffer conduct the cumulative
error analysis to which he was entitled and she was required to
perform.
In that motion, Mr. Rose requested that the court consider
the claims that were raised in his initial postconviction motion,
litigated while he was under an active death warrant (PC-R2. 893-
907).
On April 12 1999, the State filed a motion to strike Mr.
Rose's pleading and failed to notice Mr. Rose. On April 18,
1999, the lower court entered an order striking Mr. Rose's
pleading without providing any reason for doing so.
Notice of appeal was timely filed.
SUMMARY OF ARGUMENT
Mr. Rose was denied an adversarial testing at his capital trial.
Mr. Rose's defense counsel was woefully inexperienced and
ineffective but the lower court precluded an evidentiary hearing
on guilt phase ineffectiveness of counsel.
The lower court's failure to conduct an evidentiary hearing
on Rouson's ineffectiveness regarding his failure to impeach the
eyewitnesses and failure to challenge the State's false and
misleading testimony regarding the blood found on Mr. Rose is
compounded in light on the newly discovered Brady evidence.
Borton and Poole received deals from the State in exchange
for their testimony. The substance of these deals was not
disclosed to defense counsel. Defense counsel failed to uncover
the existence of the deals. Had defense counsel been aware of
these deals, he could have impeached these two critical State's
witnesses and presented their true motivation for testifying
against Mr. Rose.
The lower court summarily dismissed this claim, arguing that
based on the strength of the eyewitness testimony and the blood
evidence, this newly discovered Brady evidence "would not have
affected the outcome of Defendant's trial. . ." When the lower
court denied the initial 3.850 guilt phase issues, it relied on
the strength of the Poole/Borton testimony to reach its
conclusion that attacking the blood and eyewitness evidence would
not have made a difference. The lower court now relies on the
"integrity" of that evidence to bolster its conclusion that a
hearing is unwarranted on the Poole/Borton evidence. The lower
court can no longer stack inference upon inference to protect the
illusion that Mr. Rose received a fair, constitutional trial.
Due to the lower court's repeated denials of an evidentiary
hearing on guilt phase errors, neither this Court nor the lower
court can conduct a full, fair, and proper cumulative error
analysis. This Court must remand for a full evidentiary hearing
in which Mr. Rose will finally be given the opportunity to
challenge the evidence used to convict and sentence him to death.
ARGUMENT I
THE CIRCUIT COURT'S NUMEROUS ERRONEOUS
RULINGS DENIED MR. ROSE DUE PROCESS AND THE
RIGHT TO A FULL AND FAIR HEARING.
A. THE CIRCUIT COURT VIOLATED MR. ROSE'S DUE PROCESS RIGHT TO A
FULL AND FAIR HEARING WHEN IT APPLIED AN IMPROPER STANDARD
TO DENY MR. ROSE AN EVIDENTIARY HEARING.
In Lemon, this Court held that a capital postconviction
defendant "is entitled to an evidentiary hearing unless 'the
motion and the files and records in the case conclusively show
that the prisoner is entitled to no relief'." Lemon v. State,
498 So. 2d 923 (Fla. 1986). At the Huff hearing, the court's
desire to expedite Mr. Rose's proceedings led to it's erroneous
analysis of Mr. Rose's issues. Judge Schaeffer made assumptions
and relied on non-record evidence to analyze Mr. Rose's claim.