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.
- Should the State object to this Pro Se proceeding. The
Court is reminded defendants 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 defendants
denied presence at Huff Hearing defendants 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 defendants 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.
- December 1, 1982 Answer to demand for discovery with
attached list of witnesses.
- 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 Attorneys 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.
- 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 victims blood was found on the defendant,
but was mixed with the defendants blood due to error of the officer
that took the samples. This is Brady / Escalating Prosecutorial misconduct
/ shifting the burden of proof.
- 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 Attorneys. 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.
- 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.
- 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
- 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 Fires 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 Fires credibility. It
seems it would also lessen some of the culpability of the States
Attorneys as well. For this reason lets ask some
hypothetical questions in the best light of the defence.
- 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?
- No!
- Had you had knowledge of any exculpatory evidence would
you have provided it to the defence?
- Yes!
- 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?
- Yes!
- Since by your own denial of withholding exculpatory
evidence the next logical inference would be that the
police withheld this evidence: wouldnt that be
correct?
- Yes!
- Is that excusable?
- No!
- Can you in any way condone this type of conduct?
- No!
- 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?
- 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 Luchons
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 20s, 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 Luchons 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 eyewitnesss description
of the perpetrator was suppressed in order to give credibility to
the highly suggestive photo array procedure and bolster the
eyewitnesss 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 Courts 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 dont 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.
Bortons 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.