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.
In effect, the court held a non-evidentiary, evidentiary hearing
and analyzed Mr. Rose's claims based on assumption and counsel's
argument.
The lower court was required to accept Mr. Rose's
allegations as true. Scott v. State, 657 So. 2d 1129 (Fla. 1995);
Lightbourne v. Dugger, 549 So. 2d 1364, 1365 (Fla. 1989). Judge
Schaeffer conceded:
If, in fact, Mr. Young had made her an
offer, I do wish that he would have disclosed
it and had told the defense that I told her
if she testified truthfully we'd allow this,
which apparently could now be a felony, could
be a misdemeanor. But at this juncture we
don't even know that.
But I have to assume that.
PC-R2. 763)(emphasis added). Although Judge Schaeffer
acknowledged that she must take Mr. Rose's allegations as true
and that there was nothing in the record to dispute them she
still denied him an evidentiary hearing.
Moreover, allegations of fact regarding due diligence must
also be accepted as true. Swafford v. State, 679 So. 2d 736 (Fla.
1996); Card v. State, 652 So. 2d 344 (Fla. 1995). In Swafford,
this Court held:
We accept as sufficient for the purpose of
demonstrating that an evidentiary hearing is
required, Swafford's claim that Lestz's
statement amounts to newly discovered
evidence. Our acceptance is based in part on
the State's failure to assert, with regard to
this issue, anything more than an allegation
that defense counsel had years to find Lestz.
679 So. 2d at 739. As in Swafford, in Mr. Rose's case, the State
argued that the evidence was not newly discovered because it
could have been found before (PC-R2. 328). Thereafter, Judge
Schaeffer, without requesting any evidence or giving Mr. Rose the
opportunity to present evidence, determined that "it has become
clear . . . that this could have been discovered as a Brady
claim. It could have been discovered using due diligence." (PCR2.
769). Judge Schaeffer's assumptions were improper and not in
accordance with this Court's precedent. See Lightbourne,
Swafford, Card; Scott. Under this Court's precedent Mr. Rose is
entitled to an evidentiary hearing.
B. THE CIRCUIT COURT ERRED WHEN IT RELIED ON NON-RECORD
DOCUMENTS TO DENY MR. ROSE AN EVIDENTIARY HEARING.
Mr. Rose's Rule 3.850 motion included a Brady claim based on
an affidavit from one of the State's key witnesses, Becky Borton.
Borton revealed that she had received benefits from the State in
exchange for her testimony (PC-R2. 3-9, 190). Nothing in the
record refuted Mr. Rose's claim and he was therefore entitled to
an evidentiary hearing.
Moreover, the State, in it's Response, attached several nonrecord
documents, including police reports regarding Borton's
prior arrests (PC-R2. 339-698). The lower court improperly
relied on these records to deny Mr. Rose an evidentiary
hearing.20 The State's reliance on non-record evidence to refute
Mr. Rose's Brady claim was a concession that the files and
records did not refute Mr. Rose's claims. Mr. Rose is entitled
to an evidentiary hearing on his Rule 3.850 motion.
C. THE CIRCUIT COURT ERRED IN DENYING MR. ROSE'S PRO SE MOTION.
Mr. Rose requested that he be allowed to be present for his
Huff hearing. The lower court would not allow Mr. Rose to be
physically present. In addition, the lower court was unable to
arrange a phone call with Mr. Rose for the Huff hearing.
Therefore, after the Huff hearing Mr. Rose filed a pro se
motion requesting that the lower court reconsider the issues
raised in Mr. Rose's original 3.850 motion. Mr. Rose stated:
1. Should the State object to this pro
se proceeding. The Court is reminded
defendant's attorney(s) raised
ineffectiveness Claim III in Amended 3.850
and in the best interest of Justice it is
appropriate for this Court to take into
consideration in lieu of defendant's denied
presence at Huff Hearing, defendant's
argument as to newly discovered evidence of
20 The State prepared the court's Order denying relief.
Attached to the Order were non-record documents.
Brady, found in the Borton revelation
revealing escalating prosecutorial misconduct
. . . .
(PC-R2. 893-894)(See Attach C).
The State objected to Mr. Rose's pleading and filed a Motion
to Strike on April 12, 1998 (PC-R2. 916-917). The State did not
serve Mr. Rose with a copy of the motion (PC-R2. 917). Less than
a week later, the circuit court granted the State's Motion to
Strike (PC-R2. 918).
The State's Motion to Strike was premised on the fact that
Mr. Rose was represented by counsel (PC-R2. 916). However, Mr.
Rose indicated in his motion that he did not believe the court
fully considered the cumulative effects of the allegations
regarding the Poole/Borton deals. Furthermore, he correctly
pointed out that his counsel had claimed that they could not
effectively represent him in his postconviction motion.
Mr. Rose's right to due process was denied when the court
failed to consider his pro se pleading. This Court should remand
Mr. Rose's case to the circuit court for an evidentiary hearing,
(see Claim I, subsection A and B), and a cumulative error
analysis in accordance with Gunsby (see Claim III).
Page 58
ARGUMENT II
THE TRIAL COURT ERRED IN DENYING MR. ROSE AN
EVIDENTIARY HEARING ON HIS CLAIM THAT HE WAS
DENIED AN ADVERSARIAL TESTING WHEN CRITICAL
EXCULPATORY EVIDENCE WAS NOT PRESENTED TO THE
JURY DURING MR. ROSE'S CAPITAL TRIAL. MR.
ROSE WAS DENIED HIS RIGHTS UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AND
CONFIDENCE IS UNDERMINED IN THE RELIABILITY
OF THE JUDGMENT AND SENTENCE.
A. INTRODUCTION
After instituting federal habeas corpus proceedings, Mr.
Rose learned that Borton and Poole 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 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.
Borton's deposition was taken on March 21, 1985. Mr. Rhodes case
became final in 1994, after this Court remanded his case for a
resentencing. Mr. Rose has exercised due diligence in
investigating and presenting this issue. Judge Schaeffer's
finding is not supported by competent and substantial evidence.
Despite due diligence, Mr. Rose's collateral counsel did not
learn of the suppression of Borton's relationship with the
prosecution and the fact that Borton received favorable treatment
from the State in exchange for her testimony against Mr. Rose
until 1996. Mr. Rose requested and then sought to compel
disclosure of any documents pertaining to Borton and Poole from
various agencies. The State sought to withhold additional
evidence of State misconduct. However, the lower court ordered
disclosure of some of those exempted materials while permitting
some of those materials to continue to be withheld. Included in
the most recently disclosed material was additional evidence
supporting Mr. Rose's allegations about State misconduct. The
Brady material mentioned in subpart C of this claim was never
provided to defense counsel.
The lower court erred in denying Mr. Rose an evidentiary
hearing. Mr. Rose is entitled under Lightbourne v. Dugger, 549
So. 2d 1364, 1365 (1989) and Scott v. Singletary, 657 So. 2d 1129
(Fla. 1995) to an evidentiary hearing in this case. The manner
in which the State has failed to disclose exculpatory evidence
affirmatively prevented a detailed thorough analysis of this case
by Mr. Rose's counsel.21 The State should not be allowed to
profit from its own wrongdoing. Accordingly, Mr. Rose requests
that he be given an evidentiary hearing on this issue and that
the requested relief be granted.
The lower court was obligated to take Mr. Rose's allegations
as true. The affidavits of Becky Borton must be accepted as
21 To the extent that the State argues that somehow
counsel's unawareness of this witness' cooperation with the
prosecution was due to his lack of diligence, then Mr. Rose
received ineffective assistance of counsel. Mr. Rose is entitled
to effective assistance of counsel in trial and during his postconviction
proceedings. Strickland v. Washington, 466 U.S. 668,
685 (1984); Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988).
true. All other allegations submitted herein must be accepted as
true under Lightbourne v. Dugger, 549 So. 2d at 1365; Scott v.
State, 657 So. 2d 1129 (Fla. 1995). The claim presented here
could not have been presented earlier. The State never disclosed
its relationship with Borton and Poole. An evidentiary hearing
is required. Walker v. State, 661 So. 2d 945 (4th DCA 1995).
B. APPLICATION OF THE WRONG STANDARD
In its post hearing order denying relief, the circuit court
applied the wrong standard to Mr. Rose's claims. The court
considered Mr. Rose's Brady/Giglio evidence as newly discovered
evidence of innocence to be analyzed under the standard
established by this Court in Jones v. State, 591 So. 2d 911 (Fla.
1991) (PC-R2. 843-847).
The circuit court's misunderstanding of the standard by
which to judge Mr. Rose's claim is evident from the order denying
relief:
The court finds that this is not newly
discovered evidence but was always
information available on due diligence. 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 police on the
night of the murder, October 18, 1982, as
later given in deposition and at trial
. . . .22 Poole and Borton were not among the
four eyewitnesses23 to the crime but
testified to Defendant's admissions to them
that he had just murdered the victim as they
gave him a ride home.
(PC-R2. 845).24 Mr. Rose's claim is a Brady claim, not a newly
discovered evidence of innocence claim. Judge Schaeffer
improperly analyzed Mr. Rose's evidence under the standard
established by this Court in Jones v. State which imposes a
greater burden on a defendant seeking a new trial.
In Kyles v. Whitley, the Supreme Court explained the
appropriate standard of review of a Brady claim:
In evaluating the weight of all these
evidentiary items, it bears mention that they
would not have functioned as mere isolated
bits of good luck for Kyles. Their combined
22 The prejudice from Judge Schaeffer's summary denial of
all guilt phase issues is exemplified by this statement. Poole
and Borton did testify at trial that when they first spoke to the
officer at their home, they denied any knowledge of the crime.
They both continued by explaining that Barbara Richardson, the
victim's mother, was standing with the police officer and they
did not want to discuss the case in front of her (R. 881, 899).
Again, Rouson was ineffective for failing to bring this out
during cross examination of Poole and Borton. Had Judge
Schaeffer granted an evidentiary hearing on guilt phase IAC,
collateral counsel would have brought out that reports written by
the officers contradicted Poole and Borton's "explanation" for
their initial denial of any knowledge.
23 There were three eyewitnesses, not four, who testified
at trial.
24 Judge Schaeffer confused a newly discovered evidence of
innocence claim with a Brady claim established through newly
discovered evidence; although this mistake is understandable, it
resulted in the application of the wrong legal standard to Mr.
Rose's evidence and the denial of the claims that entitle him to
relief.
force in attacking the process by which the
police gathered evidence and assembled the
case would have complemented, and have been
complemented by, the testimony actually
offered by Kyles's friends and family to show
that Beanie had framed Kyles. Exposure to
Beanie's own words, even through crossexamination
of the police officer, would have
made the defense's case more plausible and
reduced its vulnerability to credibility
attack. Johnny Burns, for example, was
subjected to sharp cross-examination after
testifying that he had seen Beanie change the
license plate on the LTD, that he walked in
on Beanie stooping near the stove in Kyles's
kitchen, that he had seen Beanie with
handguns of various calibres, including a
.32, and that he was testifying for the
defense even though Beanie was his "best
friend". On each of these points, Burn's
testimony would have been consistent with the
withheld evidence: that Beanie had spoken of
Burns to the police as his "partner", had
admitted to changing the LTD's license plate,
had attended Sunday dinner at Kyles's
apartment, and had a history of violent
crime, rendering his use of guns more likely.
With this information, the defense could have
challenged the prosecution's good faith on at
least some of the points of cross examination
mentioned and could have elicited police
testimony to blunt the effect of the attack
on Burns.
Justice Scalia suggests that we should
"gauge" Burns's credibility by observing that
the state judge presiding over Kyles's postconviction
proceeding did not find Burns's
testimony in that proceeding to be
convincing, and by noting that Burns has
since been convicted for killing Beanie. Of
course, neither observation could possibly
have affected the jury's appraisal of Burn's
credibility at the time of Kyles's trials.
115 S. Ct. 1555, 1573 n.19 (1995)(citations omitted). Judge
Schaeffer failed to apply the appropriate legal standard to Mr.
Rose's Brady claim.
Because the circuit court apparently misunderstood the
nature of Mr. Rose's claims, its order denying relief improperly
evaluated the evidence. While the newly discovered evidence
standard requires the reviewing court to weigh both the new
evidence and that introduced at trial, Jones, 591 So. 2d at 916,
the materiality standard that establishes a Brady violation
focuses on the effect that the suppressed evidence would have had
on the jury at the trial. When a defendant establishes that the
State withheld material exculpatory evidence, the court must
order a new trial if there is "a reasonable probability that . .
. the result of the proceeding would have been different".
United States v. Bagley, 473 U.S. 667, 682 (1985). And if the
State knowingly used false evidence, the court must order a new
trial if "there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury". United
States v. Agurs, 478 U.S. 97, 103 (1976). In Agurs, the Supreme
Court explained why newly discovered evidence claims place a
greater burden on the defendant that claims arising from State
misconduct:
[T]he fact that such [exculpatory] evidence
was available to the prosecutor and not
submitted to the defense places it in a
different category than if it had simply been
discovered from a neutral source after trial.
For that reason the defendant should not have
to satisfy the severe burden of demonstrating
that newly discovered evidence probably would
have resulted in acquittal. If the standard
applied to the usual motion for new trial
based on newly discovered evidence were the
same when the evidence was in the State's
possession as when it was found in a neutral
source, there would be no special
significance to the prosecutor's obligation
to serve the cause of justice.
427 U.S. at 111. Because the circuit court applied the wrong
standard to Mr. Rose's claims, its order denying relief cannot
withstand this Court's review.
C. BRADY/GIGLIO
Evidence uncovered since the time of Mr. Rose's capital
trial and initial post-conviction proceedings establishes that a
relationship between the State and key State witnesses, Borton
and Poole, a relationship material to their credibility, was not
disclosed to the defense in violation of Brady v. Maryland, 373
U.S. 83 (1963); see also Strickler v. Greene, 119 S. Ct 1936
(1999). Consideration of this evidence is required, for it
establishes that Mr. Rose's conviction and death sentence violate
the Eighth and Fourteenth Amendments.
Borton's deposition testimony along with her affidavit
evidence an unrefuted deal between Borton and the State. The
files and records in this action by no means show that Mr. Rose
is entitled to "no relief", and much less so "conclusively". See
Lemon v. State, 498 So. 2d 923 (Fla. 1986). Thus, Mr. Rose is
entitled to an evidentiary hearing on his claim.
In early 1996, undersigned counsel was informed by Mr. Rose
that he had recently learned that two of the witnesses against
him at trial, Borton and Poole, had made a deal with the State to
receive lenient treatment in exchange for their testimony against
Mr. Rose. He explained that he had learned this through talking
with Mr. Richard Wallace Rhodes, another death sentenced inmate,
who told him that Borton had conceded the existence of the deal
when she was deposed in the Rhodes case. Mr. Rose had borrowed a
copy of the deposition to show undersigned counsel. Counsel
investigated and discovered that during her deposition in Mr.
Rhodes' case, Borton stated:
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 Rhodes25
[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?
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.
25 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).
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?26
A. Uh-huh.
Q. I'm talking about this case.
A. Just the one time he called me at
work.
26 Should read "Milo Rose." See also fn.25.
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).
Borton thereafter provided Mr. Rose's collateral counsel
with an affidavit corroborating the testimony she gave in the
Rhodes case:
I, Rebecca Borton, having been duly
sworn, hereby depose and say:
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)
Borton's affidavit corroborates the exculpatory evidence the
State possessed which was not disclosed to Mr. Rose's defense
team. Despite diligent efforts by Mr. Rose's collateral counsel,
the fact that the prosecution made a deal with Borton and Poole
in exchange for their testimony against Mr. Rose was unknown
until 1996. Also unknown and undisclosed was the extensive
relationship between the prosecution and Borton and Poole.
Furthermore, in the documents received after learning of the
Borton deal, and turned over by the State pursuant to the lower
court's order, the following information appears in a summary of
witnesses document:
Mark Pool, 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.
This information corroborates Mr. Rose's allegations of
State misconduct regarding Poole, Borton, Detective Fire and
Assistant State Attorney Young.
A Brady claim requires proof that: 1) the State possessed
evidence favorable to the defense; 2) the defense did not possess
the evidence in question; 3) the State did not disclose the
evidence; and 4) the evidence was material, i.e., its
nondisclosure undermines confidence in the outcome. See Duest v.
Singletary, 967 F.2d 472 (11th Cir. 1992), rev. and remanded on
other grounds, 113 S. Ct. 1940 (1993), adhered to on remand, 997
F.2d 1336.
The truth of a witness' testimony and a witness' motive for
testifying are material questions of fact for the jury, thus, the
improper withholding of information regarding a witness'
credibility is just as violative of the dictates of Brady v.
Maryland as the withholding of information regarding a
defendant's innocence. Bagley, 473 U.S. 667; Ouimette v. Moran,
942 F.2d 1 (1st Cir. 1991). Impeachment evidence of an important
State witness is material evidence that must be disclosed by the
prosecution. United States v. Arnold, 117 F.3d 1308 (11th Cir.
1997); Jean v. Rice, 945 F.2d 82 (4th Cir. 1991). As a result of
the State's misconduct in this case, Mr. Rose was precluded from
effectively cross-examining key State witnesses and from
effectively presenting a defense, and the jury was deprived of
relevant evidence with which to evaluate the State's witness'
credibility.
The State's failure to disclose promises of leniency made to
Borton and Poole, key State witnesses, in exchange for favorable
testimony clearly constituted a violation of Brady v. Maryland,
373 U.S. 83 (1963); see also Strickler v. Greene, 119 S. Ct. 1936
(1999).
Generally, the standard to determine materiality is whether
"there is a reasonable probability that . . . the result of the
proceeding would have been different" had the evidence been
available to the defense. Bagley, 473 U.S. at 682. However, a
lower standard applies where the State knowingly used false
testimony, as occurred here. In such a case, the falsehood is
deemed to be material "if there is any reasonable likelihood that
the false testimony could have affected the judgment of the
jury". Agurs, 427 U.S. at 103 (emphasis added). Accord Giglio,
405 U.S. at 154. The lower standard applies because such cases
involve prosecutorial misconduct and the corruption of the truthseeking
function at trial. Agurs, 427 U.S. at 104; Bagley, 473
U.S. at 680. The Supreme Court has indicated that this lower
standard of materiality is equivalent to the Chapman v.
California, 386 U.S. 18 (1967), "harmless beyond a reasonable
doubt" standard, Bagley, 473 U.S. at 679 n. 9, which requires
"the beneficiary of a constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained". 386 U.S. at 24 (quoting Fahy v.
Connecticut, 375 U.S. 85, 86-7 (1963)). In this case, where the
State suppresses Brady material which exposes as false the only
evidence supporting one of the aggravating factors and negating
the mitigating factors, it cannot be said beyond a reasonable
doubt that the State's use of false testimony did not contribute
to the verdict and death sentence.
In analyzing a Brady claim under the Supreme Court's opinion
in Kyles v. Whitley, the focus is whether the false testimony had
an effect on the jury. The Court explained:
Justice Scalia suggests that we should
"gauge" Burns's credibility by observing that
the state judge presiding over Kyles's postconviction
proceeding did not find Burns's
testimony in that proceeding to be
convincing, and by noting that Burns has
since been convicted for killing Beanie. Of
course, neither observation could possibly
have affected the jury's appraisal of Burn's
credibility at the time of Kyles's trials.
115 S. Ct. 1555, 1573 n.19 (1995)(citations omitted)(emphasis
added). The Court's review of the evidence in Kyles similarly
demonstrates its focus on the jury to determine whether the
defendant satisfied the materiality standard established in
Bagley. In Kyles, the Supreme Court found that the evidence
withheld by the State would not only have resulted in a stronger
case for the defense, but would also have substantially reduced,
or even destroyed the value of the State's two best witnesses.
As in this case, the State in Kyles had additional evidence (in
fact physical evidence) connecting Mr. Kyles to the crime;
however, the Court noted that "none of the Brady cases has ever
suggested that sufficiency of evidence (or insufficiency) is the
touchstone". 115 S. Ct. at 1566 n. 8. The Court explained:
[T]he question is not whether the State would
have had a case to go to the jury if it had
disclosed the favorable evidence, but whether
we can be confident that the jury's verdict
would have been the same. Confidence that it
would have been cannot survive a recap of the
suppressed evidence and its significance for
the prosecution.
115 S. Ct. at 1575. Under the Brady standard, Mr. Rose is
entitled to a new trial if he can demonstrate that the "favorable
evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict". 115
S. Ct. at 1566.
Material evidence was withheld from Mr. Rose's attorneys or
was not available at the time of trial. According to Borton's
1985 deposition in the Rhodes' case, Assistant State Attorney
Bruce Young had knowledge of Borton's cooperation in exchange for
assistance from the prosecution on her own cases. She stated: "I
always cooperated with [Bruce Young]." Her deposition statement,
made in Mr. Rose's case, regarding the nature of her pending
charges (R. 208-209), was made to mislead Mr. Rose's trial
counsel, a deception that the State was well aware of and in
which the Assistant State Attorney was a participant.
In addition, the recently produced documents regarding
Poole's relationship with the State further corroborates the
duplicity that undermined Mr. Rose's trial. Borton's deposition
in Mr. Rhodes case corroborates the State's relationship to Poole
because in order to guarantee Poole's and Borton's cooperation,
an arrest warrant was issued against Mark Poole.27
The defense had no knowledge of the relationship between
Borton, Poole and the prosecution and the State never disclosed
this evidence. As a result the jury never learned of their deals
to provide testimony against Mr. Rose in exchange for lenient
treatment. No mention of Borton or Poole's relationship with the
prosecution was ever made by either the State or defense
attorneys (R. 862-884, 885-901). See also State's closing
argument at R. 885-1065.
The State violated due process when it failed to disclose
this material evidence. The State has a duty to turn over
available evidence that challenges the credibility of their
witnesses. Napue v. Illinois, 360 U.S. 264, 269 (1959);
Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999). The
credibility of Borton and Poole were of paramount importance to
the State and the State argued its case carefully to avoid any
inference that any of its witnesses credibility was subject to
attack. Assistant State Attorney Young argued that no witness he
presented had any more interest in testifying "than that of a
normal citizen" (R. 1047). This was patently false. Moreover,
Borton and Poole's testimony was a central feature of the State's
27Mr. Poole was in fact arrested approximately five (5) days
before Mr. Rose's trial began.
case and Young continued to emphasize its importance throughout
his closing argument.
This withheld evidence is material to Mr. Rose's defense
because it impeaches the State's key witnesses whose testimony
resulted in Mr. Rose's conviction and death sentence. The
undisclosed evidence reveals that Poole and Borton received
benefits from the State in exchange for their cooperation. In
Smith v. Wainwright, the Eleventh Circuit Court of Appeals
addressed a similar situation in which the State's key witnesses
had not been impeached because of trial counsel's
ineffectiveness. The Court explained the significance of this
failure:
The conviction rested on the testimony of
Johnson. His credibility was the central
issue in the case. Available evidence would
have had great weight in the assertion that
Johnson's testimony was not true. That
evidence was not used and the jury had no
knowledge of it. There is a reasonable
probability that, had their original
statements been used at trial, the result
would have been different.
799 F.2d 1442, 1444 (11th Cir. 1986).
Mr. Rose can establish that the nondisclosure of the
information regarding Poole's and Borton's deals with the State
and their lenient treatment in exchange for testimony undermines
confidence in the outcome of the guilt phase. However, this
Court must also consider the effect of this withheld evidence on
the penalty phase of Mr. Rose's trial. See Garcia v. State, 622
So. 2d 1325 (Fla. 1993). If the State had disclosed evidence
that these witnesses received benefits in exchange for their
testimony, Mr. Rose's attorney would have had the tools necessary
to impeach their credibility at the penalty phase and support
mitigating factors. Poole and Borton were critical to the
State's case, and the withholding of this information denied Mr.
Rose his constitutional right to confront the witnesses against
him, his right to the effective assistance of counsel, and his
right to a fair trial.
Mr. Rose was denied a reliable adversarial testing. The
jury did not hear this exculpatory evidence. In order "to ensure
that a miscarriage of justice [did] not occur," Bagley, 473 U.S.
at 675, it was essential for the jury to hear the evidence.28
Confidence is undermined in the outcome since the jury did not
hear the evidence.
The State's misconduct in this case resulted in a failure of
the adversarial process. Confidence in the outcome of Mr. Rose's
trial is undermined because the unpresented evidence was relevant
and material to Mr. Rose' guilt of first-degree murder and
certainly to whether a death sentence was warranted. Here,
28 Mr. Rose argues Brady and ineffective assistance of
counsel in the alternative. Either the prosecutor unreasonably
failed to disclose or defense counsel unreasonably failed to
discover exculpatory evidence. Either way the resulting
conviction was unreliable and the Sixth Amendment violated.
exculpatory evidence did not reach the jury.29 Either the State
unreasonably failed to disclosed its existence, or defense
counsel unreasonably failed to discover it. Counsel's
performance and failure to adequately investigate was
unreasonable under Strickland v. Washington. Moreover, the
prosecution interfered with counsel's ability to provide
effective representation and insure an adversarial testing. The
prosecution denied the defense the information necessary to alert
counsel to the avenues worthy of investigation and presentation
to the jury. As a result, no constitutionally adequate
adversarial testing occurred. An evidentiary hearing must be
held, and thereafter, Mr. Rose' conviction and sentence must be
vacated and a new trial and/or new penalty phase ordered.
29 Workman v. Tate, 957 F.2d 1339, 1346 (6th Cir.
1992)(reasonable probability found where uncalled witnesses would
have provided corroboration of defense witnesses and contradicted
testimony of police officers); Barkauskas v. Lane, 878 F.2d 1031,
1034 (7th Cir. 1989)(the undisclosed impeachment evidence, in
conjunction with that already presented to the jury, may have
"pushed the jury over the edge into the region of reasonable
doubt that would have required it to acquit"); Ouimette v. Moran,
942 F.2d 1, 10 (1st Cir. 1991)(confidence undermined in the
outcome because suppressed evidence "might have affected the
outcome of the trial"); Chambers v. Armontrout, 907 F.2d 825, 832
(8th Cir. 1990)(in banc)(reasonable probability exists where
"jury might have acquitted"). See also Henderson v. Sargent, 926
F.2d 706 (8th Cir. 1991); Williams v. Whitley, 940 F.2d 132 (5th
Cir. 1991).
Page 80
ARGUMENT III
THE CIRCUIT COURT APPLIED THE WRONG STANDARD
IN REVIEWING MR. ROSE'S CLAIMS AND FAILED TO
CONSIDER THE CUMULATIVE EFFECT OF ALL OF THE
ERRORS PRESENTED SINCE MR. ROSE'S TRIAL.
The lower court failed to consider the cumulative effect of
all the errors that occurred during Mr. Rose's trial as required
by Kyles v. Whitley and this Court's precedent.30 Lightbourne v.
State, 24 Fla. L. Weekly S 375 (Fla. 1999); Swafford v. State,
679 So. 2d 736, 739 (Fla. 1996)(directing the circuit court to
consider newly discovered evidence introduced in the defendant's
first 3.850 motion and the evidence presented at trial).31 In
State v. Gunsby, this Court ordered a new trial in Rule 3.850
proceedings because of the cumulative effect of Brady violations,
ineffective assistance of counsel and/or newly discovered
evidence. Gunsby is exactly on point here and should have been
followed by the circuit court. In fact, Mr. Rose's counsel
informed the lower court that a cumulative error analysis was
required (PC-R2. 714). In Gunsby, this Court found that a new
trial was required because the evidence presented at the
evidentiary hearing undermined the credibility of key State
witnesses. Id. at 923. This Court also addressed the State's
30 Mr. Rose incorporates by reference his previously pled
allegations of Brady violations and instances of ineffective
assistance of counsel during the guilt phase of his trial.
31 That Kyles v. Whitley is not limited to Brady claims is
evidenced by its application to sufficiency of the evidence
claims, United States v. Burgos, 94 F.3d 849 (4th Cir. 1996);
United States v. Rivenbank, 81 F.3d 152 (4th Cir. 1996);
ineffective assistance of counsel claims, Middleton v. Evatt, 77
F.3d 469 (4th Cir. 1996); and newly discovered evidence claims,
Battle v. Delo, 64 F.3d 347 (8th Cir. 1995).
argument that some of the defendant's evidence did not meet the
test for newly discovered evidence:
In the face of due diligence on the part of
Gunsby's counsel, it appears that at least
some of the evidence presented at the rule
3.850 hearing was discoverable through the
use of due diligence at the time of trial.
To the extent, however, that Gunsby's counsel
failed to discover this evidence, we find
that his performance was deficient under the
first prong of the test for ineffective
assistance of counsel as set forth in
Strickland v. Washington. The second prong
of Strickland poses the more difficult
question of whether counsel's deficient
performance, standing alone, deprived Gunsby
of a fair trial. Nevertheless, when we
consider the cumulative effect of the
testimony presented at the Rule 3.850 hearing
and the admitted Brady violations on the part
of the State, we are compelled to find, under
the unique circumstances of this case, that
confidence in the outcome of Gunsby's
original trial has been undermined and that a
reasonable probability exists of a different
outcome.
Id. at 924 (citations omitted). The circuit court failed to
consider the effect of Mr. Rose's new evidence and also ignored
this Court's instructions in Gunsby to consider evidence that
does not satisfy the newly discovered test for its support of an
ineffective assistance of counsel and/or Brady claims. Had the
circuit court examined all of the evidence Mr. Rose presented
throughout his capital proceedings, it would have found that
previously unknown evidence, in conjunction with the evidence
introduced at Mr. Rose's trial, undermines confidence in the
outcome. Gunsby; Swafford. Had the jury heard all the evidence
asserted in Mr. Rose's post-conviction proceedings, the outcome
of his trial and penalty phase would certainly have been
different.
A thorough review of the record indicates that every
decision made by the jury and judge at Mr. Rose's capital trial
and the lower court during Mr. Rose's postconviction proceedings
relied on the credibility of Poole and Borton's testimony that
Mr. Rose had confessed to them and requested that they provide
him with an alibi.
At Mr. Rose's trial the strongest evidence of Mr. Rose's
guilt was the testimony of Poole and Borton that Mr. Rose had
confessed to them (R. 865-866; 890). Thereafter, in sentencing
Mr. Rose, the trial court discounted statutory and non-statutory
mitigators based on the Poole/Borton testimony. In fact, the
lower court's sentencing order reflects that one reason the court
found the statutory aggravator that the murder was committed in
cold, calculated and premeditated manner was based on the
Poole/Borton testimony (R. 336).
During his initial postconviction proceedings Mr. Rose was
denied relief on his penalty phase claims of ineffective
assistance of counsel. The lower court relied on Poole and
Borton's trial testimony in discounting the expert testimony
regarding Mr. Rose's intoxicated state and the "black-out"
theory.
Moreover, during Mr. Rose's initial postconviction
proceedings he raised numerous claims regarding the ineffective
assistance of guilt phase counsel. Specifically, Mr. Rose
claimed that trial counsel: 1) failed to take the deposition of
Carl Hayword, a critical State eyewitness; 2) failed to depose
the first officer on the scene, Patrolman McKenna, who
improperly32 took the initial statements from the four
eyewitnesses, as well as failed to depose Detective Walther, who
interviewed State witness Bass as well as saw Bass' composite
drawing; 3) failed to call Patrolman McKenna as a witness and
solicit the substance of the initial eyewitness accounts, which
drastically differed from their courtroom narratives; 4) failed
to call Patrolman McKenna, Carl Hayword, and Maryann Hutton at
the Motion to Suppress Photo-Pak hearing held the first day of
trial; 5) failed to impeach each eyewitness with their
inconsistent statements and educate the jury regarding the
evolution of each witnesses description of the perpetrator; 6)
failed to attack the State's insinuation that the blood on Mr.
Rose was from the homicide; 7) failed to properly object when the
32 Patrolman McKenna failed to isolate each of the
witnesses when he took their first statements, thereby tainting
the description given be each of the witnesses. Furthermore,
Patrolman McKenna possessed vital information regarding an
earlier altercation wherein Mr. Rose assisted the victim,
including the extent of Mr. Rose's injuries, the friendly
relationship between Mr. Rose and the victim, and the name and
statements of other individuals at the bar with knowledge to
these same facts.
State introduced "expert" testimony from Detective Fire
regarding the "mixing" of blood samples taken from Mr. Rose,
thereby misleading the jury into believing that it was impossible
to determine the source of the blood found on Mr. Rose; 8) failed
to call an expert during Mr. Rose's case-in-chief to show that
because of Mr. Rose and the victim's blood types, "mixing" of the
blood was impossible; 9) failed to introduce testimony from a
serologist that blood swabbed from Mr. Rose did not match that of
the victim; 10) failed to depose and call as a witness FDLE
serologist Guenther; 11) failed to depose or call as a witness
Technician Bowers; 12) failed to attack the shoddy police
investigation regarding other physical evidence, all of which
would have excluded Mr. Rose as a suspect, such as failing to
test Poole's vehicle for traces of the victim's blood or other
trace evidence, failing to test for fingerprints on glass
collected at the scene, failing to test the blood found on Mr.
Rose's clothing, etc.; 13) failed to elicit from Borton that she
initially stated to the police that Mr. Rose was wearing a
flannel shirt when he entered the vehicle, thus contradicting the
description given by the eyewitnesses; 14) failed to impeach
Borton with her initial statement that it was her, and not Mr.
Rose, who commented on leaving the victim a "vegetable"; 15)
failed to bring out her prior statement that Mr. Rose's hair was
in a ponytail, thus contradicting the eyewitness testimony; 16)
failed to impeach Poole when, during the trial, he testified that
Mr. Rose asked him to provide an alibi, with his prior sworn
deposition testimony that Mr. Rose specifically did not ask for
an alibi; 17) conceding, when cross examining Poole, that Mr.
Rose requested an alibi, by asking "Isn't it a fact that you told
Milo Suzanne would say whatever you wanted her to say?"33 The
lower court failed to consider the cumulative impact of Rouson's
many errors and omissions when again denying Mr. Rose an
evidentiary hearing on his claims.
Furthermore, in his initial postconviction proceedings, Mr.
Rose claimed that he could prove that the blood collected from
him on the night of the murder could not have been the victim's
PC-R1. 370-373). Mr. Rose asserted that the lab report regarding
the blood evidence contained incredible exculpatory evidence. In
order to support his claim, Mr. Rose submitted the affidavit of a
forensic scientist and former FDLE agent. (See Attach. B). The
affidavit indicated that according to the lab report, the
victim's blood could not have been present on Mr. Rose the night
he was arrested.
The lower court denied Mr. Rose an evidentiary hearing on
his guilt phase issues because:
I believe that, my recollection of the
eye witness testimony is Mr. Rouson made a
lot of hay with it. He made a lot of hay as
to discrepancies in their testimony of the
33 Due to the page limitations placed on the appellant,
this list is not exhaustive, but is only illustrative of the
complete lack of an adversarial testing.
various and sundry things. And you can make
an awful lot of hay when you have three eye
witnesses and they all say that 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). Mr. Rose was previously denied an evidentiary
hearing on his guilt phase issues attacking the lack of an
adversarial testing of the eyewitness testimony and the lack of
blood evidence. The lower court relied on its previous denial to
bootstrap its present denial of a guilt phase evidentiary hearing
on the Poole/Borton Brady evidence. The lower court failed to
conduct a cumulative error analysis when presented with this new
information. Instead of looking at all of the errors that
plagued Mr. Rose's trial, the lower court, in its order prepared
by the State, strictly examined the new evidence in a vacuum.
Lightbourne v. State, 24 Fla. L. Weekly S 375 at 21 (Fla. 1999).
In light of this new Poole/Borton evidence, this Court must allow
him to revisit all guilt phase issues.
The cumulative effect of the evidence not presented to the
jury either because the State failed to disclose it or defense
counsel failed to discover it can result in a breakdown of the
adversarial process such that a new trial is warranted. State v.
Gunsby, 670 So. 2d 920 (Fla. 1996); Kyles v. Whitley, 115 S. Ct.
1555 (1995). The trial court failed to conduct a cumulative
error analysis. Instead, the court considered "each piece of
evidence in a vacuum" and failed to "look at the total picture of
all of the evidence". Lightbourne v. State, 24 Fla. L. Weekly S
375 at 21 (Fla. 1999). As such, an evidentiary hearing is
required on all of Mr. Rose's postconviction claims of alleged
error including his claims originally denied in his initial
postconviction proceedings.
ARGUMENT IV
THE LOWER COURT ERRED IN DENYING MR. ROSE
ACCESS TO THE FILES AND RECORDS PERTAINING TO
HIS CASE IN THE POSSESSION OF CERTAIN STATE
AGENCIES WHICH WAS WITHHELD IN VIOLATION OF
CHAPTER 119, FLORIDA STATUTES, THE SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND THE
CORRESPONDING PROVISIONS OF THE FLORIDA
CONSTITUTION.
The lower court erred in denying Mr. Rose access to the
files and records in his case.34
The lower court conducted an ex parte in camera inspection
of the State's exempt materials. That inspection procedure
violated Mr. Rose's right to a full and fair state postconviction
proceeding as guaranteed by both state and federal constitutional
34 Including the joint adjudication of Mr. Rose's claim
with that of Mr. Rhodes.
due process and equal protection as well as state statute and
federal law.
Moreover the lower court denied Mr. Rose an evidentiary
hearing on his allegations of non-disclosure, inadequate search
and claimed exemptions. Mr. Rose was prejudiced. For example,
the materials ordered released by the lower court do not contain
the handwritten notes of the author of the document referred to
in Argument II regarding the relationship between the State and
Poole and Borton.35 Further, the lower court issued a detail
order of the records to be disclosed, but Mr. Rose has never been
provided an adequate inventory of the materials remaining
withheld. Mr. Rose requested and was denied an opportunity to
inquire of the custodian, Assistant State Attorney King, under
oath, about the basis for the exemptions claimed, yet the State
gave its input during the improper ex parte in camera proceeding.
These procedures denied Mr. Rose a full and fair state
postconviction proceeding as guaranteed by both state and federal
constitutional due process and equal protection as well as state
statute and federal law. Mr. Rose has been denied a full and
fair state postconviction proceeding.
35In fact, no handwritten notes were disclosed whatsoever
and because of the separate and continued effect of the court's
refusal to require the State to provide a detailed inventory of
handwritten materials and the conducting of an improper in camera
inspection, Mr. Rose is denied a full and fair state
postconviction proceeding.
ARGUMENT V
MR. ROSE IS BEING DENIED HIS RIGHT TO
EFFECTIVE REPRESENTATION BY THE LACK OF
FUNDING TO FULLY INVESTIGATE AND PREPARE HIS
POST CONVICTION PLEADINGS IN VIOLATION OF
ARTICLE 1, SECTION 9 AND HIS FIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENT RIGHTS UNDER
THE UNITED STATES CONSTITUTION, THE SPIRIT
AND INTENT OF 28 U.S.C § 2254 AS AMENDED BY
THE ANTI-TERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996 AND SPALDING V.DUGGER.
In all criminal proceedings, and most particularly in the
defense of capital cases, attorneys, investigators, adequate time
to devote to investigation and legal research, and sufficient
funding to support the effort are required to effectively
represent an accused or convicted person. Unfortunately, Mr.
Rose has, through no fault attributable to him, been denied this
effort and has therefore been precluded from proving his
innocence of the convictions and/or sentences in this cause.
During the critical investigative phases of the postconviction
process, the former CCR was underfunded, understaffed, and overworked
to the point that effective legal representation was
denied Mr. Rose due to State action. Undersigned counsel has had
inadequate time to remedy these past wrongs thrust upon Mr. Rose.
Effective legal representation has also been denied Mr. Rose
because public records from the various agencies were not
provided to Mr. Rose's counsel, or if received, were incomplete
in violation of Florida Statute, Chapter 119.
Pursuant to Florida Statutes (1997) section 27.001, the
Office of the Capital Collateral Counsel-Northern Region is
responsible for representing Mr. Rose in his application for post
conviction relief. Mr. Rose is guaranteed effective
representation during his post conviction proceedings. Spalding
v. Dugger, 526 So. 2d 71 (Fla. 1988). Effective postconviction
representation entails review of the entire record and an
assessment of whether the trial was fair and whether trial
counsel competently performed his/her duties under the Fourth,
Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
In reviewing and investigating these issues, counsel often
requires the assistance of various forensic experts, including
mental health professionals, social work experts, cultural
anthropology experts, DNA professionals, fingerprint/blood
spatter/ballistics experts and other potential experts. Funds
for hiring experts has been inadequate for Mr. Rose's case.
The cumulative effects of years of underfunding, the one
year rule for filing Motions to Vacate, procedural changes in
obtaining all necessary public records, the dismantlement of CCR
and the creation of the Regional Counsels, continued underfunding
even into the next fiscal year, and confusing legislative changes
have rendered the delivery of capital postconviction legal
services a haphazard and ineffective process which violates Mr.
Rose's rights to substantive and procedural due process of law.
During Mr. Rose's representation by the former CCR, the
funding crisis was aggravated by both the continuous warrant
statute and the costs of certified mailing and the time
limitations contained in Rule 3.852. Tolling by this Court
necessarily occurred on a regular basis due to the lack of
funding for the increased expenditures occasioned by State
action.
On April 24, 1997, then CCR Michael Minerva withdrew
authorization to incur any expenses on Mr. Rose's case and all
others because budgetary projections indicated that CCR, contrary
to state law, would run a deficit.
In Mr. Rose's case, former counsel resigned and Mr. Rose was
unrepresented from mid-August 1997 until early November 1997.
Mr. Rose has been denied his State guaranteed right to effective
representation in capital postconviction by the denial of
adequate counsel. Spalding v. Dugger, supra.
Additionally, passage of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA) with its opt-in provisions
reveals the intent of the federal government in securing full and
fair hearings for state capital postconviction litigants. The
AEDPA presupposes adequate resources, effective assistance of
postconviction counsel, compliance with all principles of due
process of law and a resulting full and fair hearing in state
court. Mr. Rose has been continuously denied the rights
presupposed by the AEDPA. To require Mr. Rose to plead and
present his claims in the absence of full investigation due to
lack of resources and effective assistance of postconviction
counsel is to deny him due process of law and jeopardize federal
review of his claims denied in state court, particularly if the
State of Florida prevails in its assertion that Florida qualifies
as an opt-in state under the AEDPA.
ARGUMENT VI
FLORIDA'S CURRENT USE OF JUDICIAL
ELECTROCUTION AS ITS METHOD OF EXECUTION IS
UNCONSTITUTIONAL BECAUSE IT DOES NOT RESULT
IN INSTANT DEATH AND INFLICTS SEVERE
MUTILATION ON THE BODY OF THE CONDEMNED
PRISONER. FLORIDA'S CURRENT USE OF JUDICIAL
ELECTROCUTION AS ITS SOLE METHOD OF EXECUTION
IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE
EVOLVING STANDARDS OF DECENCY THAT MARK THE
PROGRESS OF A MATURING SOCIETY.
The lower court erred in denying Mr. Rose an evidentiary
hearing on this claim. Judge Schaeffer stated:
I'm not inclined, because I don't think it's
necessary in light of their decision in Jones
and Remeta, to undertake that unless I'm
required to and I'm told to . . . .
(PC-R2. 790). In his Rule 3.850 motion, Mr. Rose pleaded facts
that were not rebutted by the record, therefore he is entitled to
an evidentiary hearing on his claim. Lemon v. State, 498 So. 2d
923 (Fla. 1987).
A. STATEMENT OF THE FACTS
It has been acknowledged that "each time an execution is
carried out, the courts wait in dread anticipation of some
'unforeseeable accident'..." Provenzano, Slip op. at 10 (Harding,
C.J., concurring, joined by Lewis, J.). This "dread
anticipation" justifiably exists because recent history has
demonstrated that "human error...seems to plague" Florida's
practice of judicial electrocution. Provenzano, Slip op. at 23
(Quince, J., concurring, joined by Wells, J.).
As Mr. Rose awaits his execution, he is tormented by images
from past executions: fires within and without electrocution
apparatus (resulting in extensive facial burning), extensive
burning of flesh due to excessive saline dripping over the face
and upper body of the condemned (not to mention extensive
electrode contact burns of varying severity contingent upon
electrode placement and current path), arcing burns inflicted on
the condemned due to unpredictable current flow, the excessive
tightening of straps such that human flesh and tissue are maimed
prior to any electrical current being applied, asphyxiation
during the pre-electrocution preparations, knowledge that pain
and torment observed by Department of Corrections employees prior
to the application of electrical current will continue unabated,
and lingering death following electrocution occasioned by gasping
breaths, continuing heartbeat, and brain stem activity.
The Department of Corrections' (DOC), manner of executing
Florida's condemned by means of judicial electrocution
unnecessarily exposes Mr. Rose to substantial risks of suffering
and degradation through physical violence, disfigurement, and
torment. These risks inhere in Florida's practice of judicial
electrocution and have been repeatedly documented. Provenzano v.
Moore, Slip op. at 43-44 (Shaw, J., dissenting, joined by
Anstead, J.)("Not only was every execution in Florida accompanied
by the inevitable convulsing and burning that characterizes
electrocution, but further, three executions in particular were
marred by extraordinary violence and mutilation.")(footnote
omitted)(citing Jones v. State, 701 So.2d 70, 82-88 (Fla.
1997)(Shaw, J., dissenting, joined by Kogan & Anstead, JJ.));
id., at 71 (Anstead, J., dissenting, joined by Kogan & Shaw,
JJ.)("we know from actual experience that electrocution always
involves mutilation (within and without the body) and a
substantial risk of malfunction (including external burning,
bleeding, asphyxiation, etc)"); Buenoano v. State, 565 So.2d 309
(Fla. 1990)(fire purportedly caused by sponge); Jones v. State,
701 So.2d 70 (Fla. 1997); and Jones v. Butterworth, 691 So.2d 481
(Fla. 1997)(another fire purportedly caused by a sponge).
Persons such as Mr. Rose face an unconstitutional risk of
being tormented, degraded and dehumanized by Florida's practice
of botching judicial electrocutions. DOC employees will strap
Mr. Rose into the electric chair, utilizing arm straps, leg
straps, chest strap, chin strap and mouth strap. There is an
unconstitutional risk that the force used, as well as the shape,
placement and manner of securing the straps, will cause
unnecessary pain, injury, and at least partial asphyxiation.
Provenzano, Slip op. at 3, 5 (noting size and shape of mouth
strap may be unnecessary and not "consistent with the functioning
of the electric chair"); id. at 51 (Shaw, J., dissenting, joined
by Anstead, J.)("In light of the placement of the mouth-strap,
the positioning of the face-mask, and the flow of blood from his
nostrils, it is reasonable to conclude--as did Dr. Kirschner--
that Davis was being smothered before he was electrocuted.").
Such strap-related torment was observed in the recent executions
of Judias Buenoano (flesh of her breast was pulled through and
pinched by buckle of chest strap), Leo Jones (used pre-arranged
signal to indicate straps were smothering him), and Allen Davis.
The trial court in Provenzano acknowledged that an autopsy of
Allen Davis revealed that "'the placement of the mouth strap
across Davis' mouth inhibited Davis' breathing and caused him to
become at least partially asphyxiated before the application of
the electrical current to him.'" Provenzano, Slip op. at 49
(Shaw, J., dissenting, joined by Anstead, J.)(quoting from trial
court order).
Although DOC employees will likely become aware that Mr.
Rose is experiencing pain, is unable to breathe, that partial
asphyxiation is causing his face to turn red, or that he is
moaning, screaming and/or bleeding, they will likely do
absolutely nothing to alleviate his suffering. Provenzano, Slip
op. at 3 (noting that Allen Davis began to bleed from the nose
"before the electrical current was applied to him")(emphasis in
original); id., at 49-51 (quoting trial court order describing
the bleeding and "screams," "moan," or "muffled sounds" detected
by witnesses in the execution chamber and DOC employees' lack of
reaction to same).
Once DOC employees and/or agents apply electricity to Mr.
Rose, there is an unconstitutional risk that he will be subjected
to further violence, pain, and lingering death. For example,
[i]t is undisputed that, despite all best
efforts, inmates have been observed breathing
after the electric current has ceased. This
indicates that brain stem activity has
continued even after the application of
electrical current.
***
Although a factual finding has been made by
two different circuit court judges that
Florida's electric chair causes no conscious
pain, these factual findings need only be
made by a preponderance of the evidence.
Despite [the Florida Supreme Court's]
deferential standard of review to trial
court's factual findings, the expert
testimony submitted by Provenzano and the
witness accounts of survival after
electrocution does in fact involve conscious
pain and suffering.
Provenzano, Slip op. at 82 (Pariente, J., dissenting, joined by
Anstead, J.); see id. at 8 (Harding, C.J., concurring, joined by
Lewis, J.)(noting "conflicting evidence in the record" regarding
whether Florida's practice of judicial electrocution produces
instantaneous unconsciousness).
Mr. Rose faces an unconstitutional risk of being disfigured
and mutilated by Florida's electric chair. There is no question
that Mr. Rose will be severely burned during the judicial
electrocution. Provenzano, Slip op. at 43-44 (Shaw, J.,
dissenting, joined by Anstead, J.); id. at 71 (Anstead, J.,
dissenting, joined by Shaw, J.); id. at 81-82 (Pariente, J.,
dissenting, joined by Anstead, J.). Because the "human error"
plaguing execution by electrocution in Florida is unpredictable
and changes from one execution to the next, it is impossible to
predict precisely where the electrodes will be placed on Mr.
Rose's head and leg. At a minimum, he will be disfigured and
mutilated with burns extending through the full thickness of his
scalp and leg. These burns will result in charred skin and
tissue detaching from Mr. Rose's body.
Separate and distinct from the burns to his head and leg,
Florida's practice of judicial electrocution places Mr. Rose at
an unacceptable risk of being burned and scalded on his forehead
and face. These injuries were inflicted upon Jesse Tafero, see
Buenoano v. State, 565 So.2d 309 (Fla. 1990); Provenzano, at 35-
36 (Shaw, J., dissenting, joined by Anstead, J.)("Tafero's
eyebrows, eyelashes, and facial hair were burned when flames
licked his face. See Jones, 701 So.2d at 87 (Shaw, J.,
dissenting)."), and Pedro Medina.36 Jones v. State, 701 So.2d at
36 To the extent Respondents reacted to the Medina
execution by adopting what purports to be an execution protocol,
see Jones v. State, 701 So.2d at 77 ("future executions pursuant
to the Department of Corrections' written...execution day
procedures will result in death without inflicting wanton and
unnecessary pain"), said reaction is not relevant to future
executions. There have been five executions since the adoption
of what purports to be a written execution protocol. The
protocol-specified levels of voltage and amperage for specific
periods of time in the execution process have not been followed
or obtained during the relevant times in any subsequent
execution. In Provenzano, this Court upheld the trial court's
conclusion that although the conditions which actually existed
during Allen Davis's execution were inconsistent with those
called for in the protocol, the protocol was not violated. Id.,
at 5. Under such a standard, there is substantial risk that Mr.
Rose's execution will result in unnecessary pain, disfigurement,
torment, and lingering death.
86 (Shaw, J., dissenting, joined by Kogan and Anstead, JJ.).
DOC's practice of judicial electrocution also poses for Mr. Rose
a constitutionally unacceptable risk of being disfigured by
electrical burns to his groin, genitals, and pubic region.
Provenzano, at 52 (Shaw, J., dissenting, joined by Anstead,
J.)(quoting trial court's order finding that Allen Davis "had
burns on his scalp and forehead, on his superpubic (sic) and
right upper medial thigh region, and behind the right knee.")
In sum, DOC's manner of effectuating judicial electrocution
necessarily entails substantial and constitutionally intolerable
risks that Mr. Rose will become the victim of a "somewhat
ghastly" display of violence, disfigurement, and degradation. A
bare majority of this Court has disregarded those risks.
Provenzano, Slip op. at 2-6 (noting, but not adjudicating, claim
that pre-electrocution suffering and pre- and post-mortem
mutilation violates the Eighth Amendment to the United States
Constitution).
The severe psychological torment Mr. Rose suffers as he
awaits execution has been heightened by this Court's prior
opinions in Buenoano, Jones, and Provenzano. These opinions
contain graphic descriptions of all the things that can and do
happen to condemned inmates during judicial electrocution in
Florida. Color photographs of Allen Davis's grimacing face and
bloodied nose and shirt have been published in the most recent
opinion. Mr. Rose must await his imminent meeting with Florida's
electric chair with these pictures firmly imprinted in his mind,
acutely aware of the evidence of what will be done to his body,
and in legitimate and substantiated fear that what is typically
unseen under the death mask--the excruciating pain intrinsic to
Florida's use of judicial electrocution--will happen to him.
Perhaps a contributing cause of his excruciating pain will be a
headpiece fire or leg electrode malfunction. Perhaps a
contributing cause will be suffocation by a face strap. Perhaps
a contributing cause will be burns ignited by saline solution
carelessly soaked into his face, upper body and clothing.
Perhaps a contributing cause will be negligent placement of the
electrode on his head. Perhaps a contributing cause will be
unexpected and unanticipated body resistance and arcing burns
inflicted in his groin or other areas. Perhaps a contributing
cause will be the absence of a meaningful protocol and
unpredictable application of volts and amps. Perhaps a
contributing cause will be DOC employees tightening the straps as
tight as they can get them and ignoring signs of severe pain.
Perhaps a new and as yet unrevealed contributing cause will
surface during Mr. Rose's execution; a source of torment as yet
uncontemplated.
This violates the Eighth Amendment to the United States
Constitution.
B. ARGUMENT AND LEGAL AUTHORITY
Punishments violate the Eighth Amendment when they involve
subjecting someone to an intolerable risk of the unnecessary and
wanton infliction of pain, Helling v. McKinney, 509 U.S. 25
(1992), lingering death, In re Kemmler, 136 U.S. 436, 447 (1890),
or "something inhuman and barbarous--something more than the mere
extinguishment of life," id., such as the denial of basic human
"dignity, civilized standards, humanity, and decency." Estelle
v. Gamble, 429 U.S. 97, 102 (1976)(internal quotation marks and
citation omitted), as through degradation and mutilation, Weems
v. United States, 217 U.S. 349 (1910); Wilkerson v. Utah, 99 U.S.
130, 136 (1878), which are "repugnant to the conscience of
mankind," Estelle, 429 U.S. at 105, quoting State of Louisiana
ex rel. Francis v. Resweber, 329 U.S. 459, 471 (1947)
(Frankfurter, J., concurring), in turn quoting, Palko v.
Connecticut, 302 U.S. 319, 323 (1937), and thus violate society's
"evolving standards of decency." Trop v. Dulles, 356 U.S. 86
(1958). Punishments are also cruel when they entail exposure to
risk that "serves no 'legitimate penological objective,'" Farmer
v. Brennan, 511 U.S. 825, 833 (1994), quoting Hudson v. Palmer,
468 U.S. 517, 548 (1984), and that are "simply not 'part of the
penalty that criminal offenders pay for their offenses against
society'" Farmer, 511 U.S. at 834, quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981). See also Gregg v. Georgia, 428 U.S.
153, 182-183 (1976)(punishment must "comport with the basic
concept of human dignity" and "cannot be so totally without
penological justification that it results in the gratuitous
infliction of suffering").
Florida's manner of execution by means of judicial
electrocution poses an "objectively intolerable risk of harm [to
Mr. Rose]." Farmer, 511 U.S. at 846. See Provenzano, Slip op.
at 23 (Quince, J., concurring, joined by Wells, J.)("human
error...seems to plague this form of execution" in Florida); id.
at 53 (Shaw, J., dissenting, joined by Anstead, J.)(noting that
"in three of twenty-three executions, i.e., in thirteen percent
of executions, the prisoner was subjected to extreme violence and
mutilation when the execution was botched"); id., at 82
(Pariente, J., dissenting, joined by Anstead, J.)("expert
testimony submitted by Provenzano and the witness accounts of
survival after electrocution raise serious questions that
judicial electrocution does in fact involve conscious pain and
suffering"). Exposing Mr. Rose to such risks, where the harms he
would suffer are those from which contemporary society's
standards of decency demand protection, violates the Eighth
Amendment. Helling, 509 U.S. at 36; Farmer, supra: Estelle, 429
U.S. at 103.
Where procedures create "a substantial risk that [death]
will be inflicted in an arbitrary and capricious manner," the
Eighth Amendment is violated. Gregg, 428 U.S. at 188. Allowing
DOC to inflict judicial electrocution on Mr. Rose in a manner
that involves substantial risks of needless pre- and postexecution
injury, disfigurement, degradation, and torment, where
his sentence calls only for the extinguishment of life, violates
the Eighth Amendment. Lockett v. Ohio, 438 U.S. 586, 605
(1978)(plurality opinion); Beck v. Alabama, 447 U.S. 625, 637
(1980); Eddings v. Oklahoma, 455 U.S. 104, 118-119
(1982)(O'Connor, J., concurring).
It is beyond dispute that where a human being has been
condemned to death for criminal behavior, the "State's only
legitimate interest is in the extinguishment of life."
Provenzano, Slip op. at 80 (Pariente, J., dissenting, joined by
Anstead, J.); Kemmler, supra. The violence, disfigurement and
degradation inflicted on the condemned through Florida's practice
of judicial electrocution are something beyond mere
extinguishment of life and are not legitimate parts of the
penalty which the condemned must pay. They, therefore, violate
the Eighth Amendment. Kemmler; Farmer, supra. See also Weems,
supra, Wilkerson, supra (gratuitous degradation and disfigurement
violate Eighth Amendment).
The risks of violence, pain and partial asphyxiation, and
the torment those risks entail are not necessary to successfully
carry out a judicial electrocution. Inmates do not routinely
catch fire, bleed, continue to breathe, scream, moan, try to
speak or otherwise attempt to react to execution-related pain in
other states employing judicial electrocution. Although these
things need not occur in Florida, officials of the State of
Florida are deliberately indifferent to their occurrence. For
example, in Georgia a small football strap is used instead of the
five-inch wide mouth strap or "chin strap" utilized by Florida
officials. Former Georgia death row warden Walter Zant testified
in the circuit court proceedings in Provenzano that the large
strap used in Florida is not necessary to a judicial
electrocution and further testified (upon viewing a photo of
Allen Davis) that Georgia would never use a device that
restricted the inmate's air flow. Thus, this Court suggested
that "it may be appropriate for DOC to revisit...the use of the
mouth strap, to ensure that it is consistent with the functioning
of the electric chair," although the Court ultimately held that
DOC was not constitutionally required to do so. Provenzano, Slip
op. at 5. Although Superintendent Crosby testified that he did
not think it was necessary to strap inmates into the electric
chair as tightly as possible, his employee who strapped Allen
Davis into the electric chair testified that he tightened the
mouth strap as tight as he could. This strapping and resulting
partial asphyxiation of Allen Davis was unnecessarily violent and
unquestionably painful. Therefore, it violated the Eighth
Amendment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459,
463 (1947)("The traditional humanity of modern Anglo-American law
forbids the infliction of unnecessary pain in the execution of a
death sentence.") Similarly, former death row warden Zant
testified that Georgia utilizes much lower levels of current to
avoid mutilation of the inmate. Similarly, prison officials of
other states acknowledge that use of high levels of current, such
as those used by DOC in a judicial electrocution, creates an
unnecessary risk of disfiguring burns. Deborah W. Denno, Getting
to Death: Are Executions Constitutional?, 72 Iowa L.Rev. 319, 421
(1997)(Virginia prison officials stated they decided not to use
higher currents in an effort to eliminate "the burning of the
body that happened in the old high voltage system"). Exposing
Mr. Rose to these risks of violence, asphyxiation, torment,
disfigurement and mutilation through DOC's manner of judicial
electrocution serves no legitimate penological objective, and DOC
has never claimed otherwise. Leaving Mr. Rose exposed to these
risks--despite their thorough documentation from prior
executions--violates the Eighth Amendment. See Farmer, 511 U.S.
at 833.
Moreover, "society considers the risk[s] that [Mr. Rose]
complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such
[risks]." Helling, 509 U.S. at 36 (emphasis in original). Not
even an ill or unwanted dog may be killed by means of
electrocution. Provenzano, Slip op. at 57 (Shaw, J., dissenting,
joined by Anstead, J.)(noting that "both the Humane Society of
the United States and the American Veterinarian Medical
Association condemn electrocution as a method of euthanasia for
animals").
C. CONCLUSION
Based on the foregoing reasoning and citation of legal
authority, Mr. Rose is entitled to an evidentiary hearing so that
he can prove his claims.
ARGUMENT VII
THE STATE OF FLORIDA FAILS TO AFFORD MR. ROSE
A CLEMENCY REVIEW PROCESS WHICH COMPORTS WITH
DUE PROCESS. THE PROCESS OF CLEMENCY REVIEW
IN FLORIDA VIOLATES MR. ROSE'S FOURTEENTH AND
EIGHTH AMENDMENT RIGHTS.
Mr. Rose has a continuing interest in his life, as
guaranteed by the due process clause of the fourteenth amendment
of the United States Constitution. See Ohio Adult Parole
Authority, et al. v. Woodard, 118 S. Ct. 1244, 1253 (1998)
(Justices O'Connor, Souter, Ginsburg and Breyer) ("A prisoner
under a death sentence remains a living person and consequently
has an interest in his life.") This constitutionally protected
interest in ones' own life does not die with the conclusion of
the trial, but remains with the individual until the ultimate
sentence has been carried out. Id. at 1254.
Florida's clemency scheme fails to adequately protect Mr.
Rose's continuing interest in his own life, as safeguarded by the
due process clause of the fourteenth amendment. As Woodard makes
clear, Florida, via state action, can not disregard Mr. Rose's
continuing interest in his life. Id. The scheme created by the
state of Florida for reviewing whether Mr. Rose should be granted
clemency insufficiently protects Mr. Rose's continuing interest
in his life.
Florida's clemency scheme violates Mr. Rose's eighth
amendment right to be free from the arbitrary and capricious
execution of his sentence. Florida's constitutionally infirm
clemency scheme renders Mr. Rose's execution arbitrary and
capricious, in violation of his eighth amendment rights.
The State's withholding of material in its possession
regarding clemency proceedings, which this Court permitted,
renders postconviction counsel and this postconviction proceeding
incapable of protecting Mr. Rose's rights or providing Mr. Rose a
full and fair state postconviction proceeding. Counsel cannot
investigate this claim due to State impediments. Those
impediments include the Florida Parole Commission's refusal to
disclose requested materials, including exculpatory materials
pertaining to clemency proceedings.
ARGUMENT VIII
THE RULES PROHIBITING MR. ROSE'S LAWYERS FROM
INTERVIEWING JURORS TO EVALUATE WHETHER CAUSE
EXISTS TO WARRANT RELIEF DUE TO JUROR
MISCONDUCT, IN COMBINATION WITH THE STRICT
DUE DILIGENCE BURDEN IMPOSED BY THIS COURT
UPON POSTCONVICTION LITIGANTS REGARDING JUROR
MISCONDUCT CLAIMS, VIOLATES EQUAL PROTECTION
PRINCIPLES, THE FIRST, SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND THE CORRESPONDING PROVISIONS
OF THE FLORIDA CONSTITUTION.
Florida Rules of Professional Responsibility 4-3.5(d)(4)
provides that a lawyer shall not initiate communications, or
cause another to initiate communication with any juror regarding
the trial. This rule denies due process to defendants such as
Mr. Rose. "A trial by jury is fundamental to the American scheme
of justice and is an essential element of due process." Scruggs
v. Williams, 903 F. 2d 1430, 1434-35 (11th Cir. 1990)(citing
Duncan v. Louisiana, 391 U.S. 145 (1968)). Implicit in the right
to a jury trial is the right to an impartial and competent jury.
Tanner v. United States, 483 U.S. 107, 126 (1987). However, a
defendant who tries to prove members of his jury were incompetent
or otherwise unqualified to serve has a difficult task. This
ethical rule unconstitutionally prevents Mr. Rose from
investigating any claims of jury misconduct that may be inherent
in the jury's verdict.
The United States Constitution, through the Eighth and
Fourteenth Amendments, require that Mr. Rose receive a fair
trial. He is prevented from fully detailing the unfairness of
his trial by operation of Rule 4-3.5(d)(4). This rule prohibits
Mr. Rose from fully exploring possible jury misconduct and bias.
Misconduct may have occurred that Mr. Rose can only discover by
juror interviews. Cf. Turner v. Louisiana, 379 U.S. 466 (1965);
Russ v. State, 95 So. 2d 594 (Fla. 1957).
An important exception to the general rule of incompetence
allows juror testimony in situations in which an "extraneous
influence" was alleged to have affected the jury. Tanner, 483
U.S. at 117 (citing Mattox v. United States, 146 U.S. 140, 149
(1892)). The competency of a juror's testimony hinges on whether
it may be characterized as extraneous information or evidence of
outside influence. Shillcutt v. Gagnon, 827 F.2d 1155, 1157 (7th
Cir. 1987).
Such extraneous information that may be testified to by
jurors includes evidence that jurors heard and read prejudicial
information not in evidence, Mattox v. United States, 146 U.S.
140 (1892); that the jury was influenced by a bailiff's comments
about the defendant, Parker v. Gladden, 385 U.S. 363, 365 (1966);
or that a juror had been offered a bribe, Remmer v. United
States, 347 U.S. 227, 228-30 (1954).
This Court has recognized that overt acts of misconduct by
members of the jury violate a defendant's right to a fair and
impartial jury and equal protection of the law, as guaranteed by
the United States and Florida Constitutions. Powell v. AllState
Insurance Co., 652 So. 2d 354 (Fla. 1995). It is imperative that
postconviction counsel be permitted to interview jurors to
discover if overt acts of misconduct impinging upon the
defendant's constitutional rights took place in the jury room.
Furthermore, the failure of jurors to truthfully respond
during voir dire has been the basis for relief in other
jurisdictions, as well as in Florida. United States v. Scott,
854 F.2d 697 (5th Cir. 1988); United States v. Perkins, 748 F.2d
1519 (11th Cir. 1984); Freeman v. State, 605 So. 2d 1258 (Ala.
Cr. App. 1992). This Court held:
Similarly, we find that the trial court here
acted well within its authority in concluding
that the Juror's failure to disclose his
prior history of litigation deprived Dela
Rosa of a fair and impartial trial.
Dela Rosa v. Zegueira, 659 So. 2d 239, 241 (Fla. 1995). See
also, Skiles v. Ryder Truck Lines, 267 So. 2d 379 (Fla. 2d DCA
1972), cert. denied, 275 So. 2d 253 (Fla. 1973).
The responsibility and burden imposed upon postconviction
counsel to discover and plead juror misconduct which disqualifies
him or her from service has recently evolved into one of strict
due diligence. In Buenoano v. State, 708 So. 2d 941, 952 (Fla.
1998), this Court condoned the execution of Ms. Buenoano despite
the fact that one of the jurors who served on her capital jury
had been convicted of manslaughter and was not completely candid
and honest in this regard during jury selection. The Court
relied upon one obscure response on the juror's written
questionnaire as being sufficient to place postconviction counsel
on notice of the potential disqualification issue. The Court
imposed a burden of strict due diligence upon postconviction
counsel to discover such juror misconduct and ignored the severe
restrictions imposed upon postconviction counsel due to the
above-referenced Florida Bar rule prohibiting juror interviews.
The combined effect of the Buenoano decision and the prohibition
on juror interviews is to violate Mr. Rose's right to Due Process
of Law, right to Equal Protection of the Law, right to Free
Speech, right to be tried by an Impartial Jury, and right to be
free of Cruel and/or Unusual Punishments. Moreover, this rule
renders collateral counsel and state court postconviction
proceedings incapable of protecting Mr. Rose's rights, including
the right to a full and fair state postconviction proceeding.
Mr. Rose requests that this Court declare this ethical rule
invalid as conflicting with the Eighth and Fourteenth Amendments
to the United States Constitution, and to allow Mr. Rose
discretion to interview the jurors in this case. The failure to
allow Mr. Rose the ability to freely interview jurors is a denial
of access to the courts of this state under Article I, Section 21
of the Florida Constitution and deprives him of due process.
CONCLUSION
Based upon the foregoing argument, reasoning, citation to
legal authority and the record on appeal, appellant, MILO A.
ROSE, urges this Court to reverse the lower court's order denying
postconviction relief and remand for an evidentiary hearing.
I HEREBY CERTIFY that a true copy of the foregoing Initial
Brief has been furnished by United States Mail, first class
postage prepaid, to all counsel of record on October 19, 1999.
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
Post Office Drawer 5498
Tallahassee, FL 32314-5498
(850) 487-4376
Attorneys for Appellant
Copies furnished to:
Candance Sabella
Assistant Attorney General
Office of the Attorney General
2002 N. Lois Ave.
Suite 700
Tampa, FL 33607-2391