IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA
CASE NO. 82-8683 CFANO

__________________________________________________________

STATE OF FLORIDA
Plaintiff

V

MILO A. ROSE
Defendant

___________________________________________________________

 

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

 

Comes now the defendant, MILO A. ROSE, and moves the Court to accept PRO SE motion as a binding attachment to Huff Hearing proceedings without prejudice. This pleading is being made in good faith that final summation has not yet been reached and this Court has duty in the best interest of Justice to allow defendant to be heard before Final Summation.

  1. Should the State object to this Pro Se proceeding. The Court is reminded defendant’s attorney(s) raised in effectiveness claim 3 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 Brady, found in the Borton, revelation escalating prosecutorial misconduct, which should be viewed by this Court in the best light of defence and in the light of cumulative effect of prejudice created by escalating prosecutorial misconduct that shifted the burden of proof and prevented the outcome of trial to be different. The newly discovered evidence reveals the utterance made by Borton, concerning her involvement in defendant’s case while being deposed in another unrelated case clearly shows that the prosecuting attorney Bruce Young, used Bribery, Threats, intimidation and coercion to ensure results he desired from Borton. It was later revealed the same tactics were used to bring about desired testimony from Mark Poole as well. These two incidents were not isolated when taken into context of the affidavit given by Barbara Richardson, in September 1987 while defendant was under death warrant and filed with initial 3,850. Ms. Richardson states in no uncertain terms that prosecuting attorney Bruce Young, verbally attacked her with threats, intimidation and coercion due to her resistance to co-operate with his attempted bribery. These three incidences of escalating prosecutorial misconduct when viewed together show a pattern by prosecuting attorneys of wanting to win by any means. Escalating prosecutorial misconduct is revealed through cumulative review of the record revealing the prejudicial effect created by prosecuting attorneys in shifting of burden of proof through the withholding of exculpatory evidence. There is ample evidence that Poole and Borton, are the true perpetrators of this crime. Both, Poole and Borton, had knowledge only the perpetrator(s) would have, along with sufficient time to fabricate their story placing blame on defendant. They initially denied any knowledge of the crime until police had placed defendant under arrest. Escalating prosecutorial misconduct gave credence to their story while denying the defendant the opportunity to show that Poole, fit the initial description of perpetrator given by all four eyewitnesses, which only three eyewitnesses would later change 180 degrees due to highly suggestive photo array along with other influences that prejudiced their later identification of defendant. This information warrants a full evidentuary hearing on guilt / innocence in order to make plain.
  2. December 1, 1982 Answer to demand for discovery with attached list of witnesses.
  1. Failure to turn over tape recorded statements/description of perpetrator given by eyewitnesses, Melissa Ann Masteridge, Maryann Hutton and Carl Hayward, taken by Detective Ronald Luchon at police station on night of incident. This failure to turn over exculpatory evidence prejudiced defendant in that the States Attorneys made no attempt to correct later tainted identification by eyewitnesses of defendant. Which in fact is a total 180 degree turn from their initial description of perpetrator in which they stated a high degree of certainty. This failure by the States Attorney to correct distorted identification by the eyewitnesses would prejudice the defendant throughout the trial proceedings and ending with the States Attorney’s argument in which he would repeat to the Jury and Court, over ten time that the eyewitnesses identification of defendant was conclusive and that never once did they hear the eyewitnesses sway or vary from their identification. This is further evidence of escalating prosecutorial misconduct / shifting of burden of proof / Brady.
  2. Failure to turn over blood test results, which showed only one blood type removed from defendant and that being his own. Yet, the State would allow testimony from the arresting officer Detective Peter Fire, go uncorrected when he distorted the facts of the blood evidence in order to mislead this Court, and Jury into believing there was a mixing of blood when the officer used one swab to take multiple samples from defendants person. Inferring that the victim’s blood was found on the defendant, but was mixed with the defendant’s blood due to error of the officer that took the samples. This is Brady / Escalating Prosecutorial misconduct / shifting the burden of proof.
  3. Failure to list Detective Edmund K.Walthers, who was the officer who interviewed the States key eyewitness Catherine W. Bass. The impeachment value alone in Detective Walthers police reports are enough to show the many incorrect distortions this key witness for the State was allowed to make. Also Detective Walthers, could of and should answer the question of why the composite drawing Bass made of the person she seen perpetrate the murder was not preserved as evidence? Bass gave the same initial statements / description of the perpetrator to two officers that night shortly after the crime. Yet, neither officer is listed on demand for discovery and her 180 degree turn from her initial description went uncorrected by the States Attorney’s. A full and impartial evidentuary will bring out the many glaring distortions of fact Ms. Bass knew would go unchallenged. Thanks to the escalating prosecutorial misconduct / Brady / shifting the burden of proof.
  4. Failure to list officer Bernard J. Mckenna on witness list is akin to the failure to list Detective Walthers. Assuring the many glaring distortions bought about escalating prosecutorial misconduct would go uncorrected, Det, Walthers and Officer Mckenna would have, and should have been key witnesses for the defence. Officer Mckenna, was the first officer on the scene of the murder and received initial statements / descriptions of the perpetrator from all four eyewitnesses. Officer Mckenna also knew the victim and defendant from an earlier investigation that evening. From this officer Mckenna was immediately able to discern that the defendant was only a subject known to have been with the murder victim and not the suspect of the murder based on the eyewitnesses description of the perpetrator. Officer Mckenna and Detective Walthers, both held information exculpatory to the defence that would have been used to impeach the eyewitnesses turn of 180 degrees from their initial description of the perpetrator to one that matched perfectly to the defendant. Instead these eyewitnesses acted as if it was expected of them not to bring up the initial statements / descriptions and even escalated their distortions of the facts, with what has to be regarded as approval from the States Attorneys. This same pattern of behaviour is evident through the many distortions put forth by both Detective Fire and Detective Luchon. These witnesses were given a licence to create whatever scenario they felt would be in the best interest of the States Attorneys in order to achieve a conviction, This is escalating prosecutorial misconduct / shifting the burden of proof / Brady.
  5. The systematic exclusion of exculpatory evidence unduly prejudiced defendant in one of the most basic of rights ~ the right to diligent zealous advocate council by creating a conflict as to innocence defence when all the evidence appeared overwhelming as to guilt. Defendant was labelled a problem client by this Court as well as by the defence attorneys. Even though there is not one shred of evidence the State presented as overwhelming as to guilt that can meet the test of credibility…
  1. On Jan.19, 1983 defendant files a prose motion to dismiss office of Public Defenders. On Jan.21, 1983 this court (Judge Susan F. Schaeffer) acknowledge receipt of motion to Dismiss and gives notice of copy of motion being forwarded to Public Defenders. On Jan. 24, 1983 Public Defender Wayne Shipp and Assistant States Attorney Bruce Bartlett, in total disregard of motion to Dismiss, proceed to take Depositions. In light of previous escalating prosecutorial misconduct claims. The inference of this circumstantial evidence that assistant States Attorney Bruce Bartlett, knew or should have known of impending motion to Dismiss office of Public Defenders, must be viewed as a serious infraction of ethical code of conduct and be weighed in total context of evidence. Which shows this type of conduct was not isolated, but in fact one more point of escalating prosecutorial misconduct running wild to win at any cost…

By weighing all of the withheld exculpatory evidence in relation to the testimony given by Detective Fire, in his Jan. 24, 1983 deposition. A strong inference can be drawn that the withholding of exculpatory evidence and manipulation of the witness list to exclude Detective Walthers and Officer Mckenna on initial demand for discovery can be attributed to Detective Fire. In order to cover his erroneous probable cause arrest of the defendant. The evidence to support this is as overwhelming as the distortions found in Detective Fire’s testimony. Detective Fire has never been subjected to a true adversary test as to his testimony. An evidentuary hearing on guilt / innocence would resolve the question of Detective Fire’s credibility. It seems it would also lessen some of the culpability of the States Attorneys as well. For this reason let’s ask some hypothetical questions in the best light of the defence.

  1. Mr Young / Bartlett, at any time during the proceedings, up to and including the trial of the Defendant Mr. Rose, were you aware of the exculpatory evidence found in the tape recorded eyewitnesses statements/ description of the perpetrator, blood test results, composite drawing by C, Bass, and exculpatory information both Detective Walthers and Officer Mckenna, could have testified to?
  1. No!
  1. Had you had knowledge of any exculpatory evidence would you have provided it to the defence?
  1. Yes!
  1. Can you now see how the withholding of exculpatory evidence created the many conflicts Mr. Rose had with his attorneys in regards to his maintaining his innocence in what was presented as overwhelming evidence of guilt?
  1. Yes!
  1. Since by your own denial of withholding exculpatory evidence the next logical inference would be that the police withheld this evidence: wouldn’t that be correct?
  1. Yes!
  1. Is that excusable?
  1. No!
  1. Can you in any way condone this type of conduct?
  1. No!
  1. Will you now join the defence in renewing the oral motion made at Trial by defence counsel Darryl Rousen for a direct verdict of acquittal on insufficient evidence?
  1. Yes!

Detective Ronald Luchon was deposed on Jan. 24, 1983. Once more the withholding of exculpatory evidence prevented a true adversary challenge / test as to Detective Luchon’s testimony. Detective Luchon, tape recorded Three eyewitnesses statements / description of the perpetrator, at the Police station shortly after the murder occurred. These eyewitnesses were Melissa Masteridge, Maryann Hutton, and Carl Hayward. They all described a white male in his mid to upper 20’s, having shoulder length dark possibly brown hair, wearing light coloured pants, and a black T-shirt with white lettering / design on it. All three witnesses were fairly sure their description was accurate. Never once did Detective Luchon, acknowledge this information throughout his testimony in deposition, pre-trial motion to suppress highly suggestive photo array, or at trial. Instead, Detective Luchon would act as if this extremely exculpatory evidence never existed. The only logical inference for Detective Luchon’s misconduct was to protect the credibility of the eyewitnesses and cover up the fact of his highly suggestive photo array constructed after learning Detective Fire had arrested and charged defendant with murder. Detective Luchon had to know from the eyewitness description the only similarity Mr. Rose, had to the perpetrator was the black T-shirt he was wearing at the time of his arrest. There was more than sufficient evidence that Mr. Rose, was seen wearing a long sleeve red flannel shirt that night and only put the black T-shirt on after arriving home. Mr. Rose also had long black hair, a full beard and is clearly not white with a dark complexion. Detective Luchon was told by his commanding officer to put together the photo array. It consisted of five photos. This photo array in and of itself was highly suggestive in that Mr. Rose was the only person wearing a black T-shirt with white lettering / design on it. Which this Court would recognise at the pre trial hearing to suppress, but would fail to rule favourably on. It is evident that the initial eyewitness’s description of the perpetrator was suppressed in order to give credibility to the highly suggestive photo array procedure and bolster the eyewitness’s credibility. As all four eyewitnesses chose the defendant from the photo array as the only one it could have been they seen commit the murder.

Had the exculpatory evidence not been withheld from the defence? The initial eyewitness description of the perpetrator would have been used to show it fit Mark Poole and not the defendant. It would have also helped explain why both Poole and Borton would lie and place blame on Mr. Rose.

It is this Court’s responsibility to protect the integrity of the judicial process, and the evidence supports it was abused by both the Police and the State Attorneys. For this Court to ignore such compelling evidence and deny an evidentuary hearing on guilt / innocence would only serve to add to the travesty of Justice, Mr. Rose has suffered all these years maintaining his innocence. A full and impartial evidentuary hearing on guilt / innocence is called for.

4. This defendant has repeatedly been labelled a problem client because of maintaining innocence in light of what has wrongly been perceived as overwhelming evidence as to guilt. Escalating prosecutorial misconduct shifted the burden of proof upon the defence and as trial attorney Darryle Rousen, so aptly put it: "I done the best I could with what I had to work with." It can be argued that the defendant did not want to waive his speedy trial rights and wanted to go to trial. But, the record reflects that after this court explained why the defendant needed to allow his attorney adequate time to prepare a defence and trial counsel agreed to be diligent in doing so. The defendant did waive his speedy trial rights. This defendant has continuously been prejudiced by blame being placed on him for being a problem client because of wanting his attorneys to present an innocence defence when the evidence was declared to be overwhelming as to guilt. This court had continued to deny the defendant an opportunity through a fair and impartial evidentuary hearing on guilt / innocence to prove his case. Yet, during trial this court promised the defendant if he were found guilty she would see to it that he would be appointed counsel to raise all the issues. The defendant has shown through the record that when he stood in the open court room and shouted to the Jury he was being railroaded, that the facts strongly support that he was and that the proceedings from the very start were anything but fair and impartial.

This court put forth some hypothetical questions during the Huff Hearing in order to sustain why this court could not find reason to grant an evidentuary hearing based on the newly discovered evidence. This Court reasoned that Borton gave truthful information concerning what happened the night of the murder to the Police long before her and the States Attorney duelled over her giving testimony at trial. This Court went further as to go over all the evidence and to state on page 70, lines 11-14 of the Huff Hearing transcript.

"And so I don’t think their credibility could have been undermined to the extent that it would have changed the guilty verdict or the recommendation."

Well your Honour, I have just put forth facts that undermine the whole farce and mockery of Justice that was labelled a Trial in your Courtroom. And it would stand to reason any reasonable trier of fact, would want to know just how accurate these facts are. Especially in the light that an innocent man may very well have been railroaded in their Courtroom. Poole and Borton have used the legal system to get away with murder. There is not one shred of evidence presented by the State as overwhelming as to guilt that can stand the test of credibility. That includes witnesses Borton and Poole. Which is why Mr Young did not want to reveal the duel he had with them over their testifying. Borton’s admission of attempting to influence the States Attorney Young, is bribery, which in and of itself is a crime. A crime Mr Young participated in! This Court cannot condone such behaviour, whitewash it, or reason it away. Mr Young is guilty of prosecutorial misconduct and contrary to the evidence this Court declared, fact (as reflected on pages 52 through 70 of the Huff Hearing transcript) IT IS NOT! The credibility of the whole trial is being bought into question, including the integrity of this Court, which will not go away. In the best light of the defence and this Court, a full evidentuary hearing on guilt / innocence is required.

Thank you for the opportunity to be indirectly heard…

Milo Rose.