i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . 11

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 62

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 64

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . 64

MR. HOLTON WAS DEPRIVED OF HIS RIGHT TO A

RELIABLE ADVERSARIAL TESTING DUE TO THE

STATE’S FAILURE TO DISCLOSE CRITICAL

EXCULPATORY EVIDENCE WHICH WAS NEVER

PRESENTED TO THE JURY IN VIOLATION OF BRADY

v. MARYLAND, 373 U.S. 83 (1963) . . . . . . . . . 64

A. INTRODUCTION . . . . . . . . . . . . . 64

B. CIRCUIT COURT’S RULING . . . . . . . . 64

C. STATE’S APPELLATE CHALLENGE . . . . . . 66

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . 91

MR. HOLTON IS ENTITLED TO RELIEF BASED ON

HIS NEWLY DISCOVERED EVIDENCE CLAIM . . . . . . . 91

ISSUE III . . . . . . . . . . . . . . . . . . . . . . 96

THE CUMULATIVE EFFECT OF THE ERRORS THAT

OCCURRED AT MR. HOLTON’S TRIAL DEPRIVED HIM

OF A FAIR TRIAL . . . . . . . . . . . . . . . . . 96

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 100

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 101

ii

CERTIFICATE OF TYPE SIZE AND FONT . . . . . . . . . . . . 101

iii

Blanco v. State,

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . . 96

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . 64

Cardona v. State,

___ So.2d ___ (Fla. July 11, 2002) . . . . . . . . 66, 72

Cosid v. Bat Steel Products Co., Inc.,

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . 94

Keech v. Yousef,

Kyles v. Whitley

514 U.S. 419 (1995) . . . . . . . . . . . . . . . 74, 90

Maharaj v. State,

778 So. 2d 944 (Fla. 2000) . . . . . . . . . . . . . . 85

McKinzy v. Wainwright,

Occhicone v. State,

768 So. 2d 1037 (Fla. 2000) . . . . . . . . . . . . . 72

Robinson v. State,

770 So. 2d 1167 (Fla. 2000),

citing Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 69

Rogers v. State,

782 So.2d 373 (Fla. 2001) . . . . . . . . . . . . . . 72

Smith v. Wainwright,

iv

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . . . 68, 73

State v. Huggins,

788 So.2d 238 (Fla. 2001) . . . . . . . . . . . . . . 90

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . . 70

Way v. State,

760 So. 2d 903 (Fla. 2000) . . . . . . . . . . . . . . 66

Zeigler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . 93

v

This proceeding involves the appeal of the circuit

court’s grant of Mr. Holton’s third amended motion for

postconviction relief. The motion was brought pursuant to

Fla. R. Crim. P. 3.850. The State stipulated that Mr. Holton

was entitled to a new penalty phase because of a due process

error that occurred during Mr. Holton’s capital trial.

Thereafter, the circuit court granted Mr. Holton a new trial

based upon his Brady claim.

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-R." – postconviction record on appeal;

"T." – transcript of the evidentiary

hearing;

"Supp. PC-R." – supplemental record on appeal.

1

This is an appeal from an order granting Rudolph Holton a

new trial. The State’s Initial Brief completely omits certain

procedural peculiarities that are illuminating when considered

in context.

At the evidentiary hearing in April of 2001, Mr. Holton

presented previously undisclosed police reports detailing a

complaint by Katrina "Grant" that she had been raped on June

13, 1986 (Def. Ex. 13); this was ten days prior to the murder

of Katrina Graddy on June 23, 1986. Katrina told a police

officer that "Pine" (aka David Pearson) had raped her in a

Tampa motel room. It is very important to note that in the

State’s closing argument on June 29, 2001, Assistant State

"Grant" was in fact Katrina Graddy.

The reason that the State did not challenge the fact that

Katrina "Grant" was in fact Katrina Graddy was that on June

28, 2001, ASA Wayne Chalu obtained a sworn statement from

David Pearson. In this statement, Mr. Pearson advised that he

had known Katrina Graddy all of his life and that Katrina

Graddy had accused him of rape days before her murder:

Q: Okay. During our conversation I asked you

about an incident that Katrina reported where she

alleged that you forced sexual relations on her; is

2

that correct?

A: Yes.

Q: And you explained that to us.

A: Yes.

Q: And how that occurred and where that

occurred?

A: At the Hancock Motel on Florida Avenue.

Q: Did you get arrested for that that night.

A: No.

Q: Did she – tell us what she told the police

once you were talking to the police in regards to

you being arrested.

A: Yeah. She obviously had told them that I had

raped her.

Q: Okay.

* * *

Q: Did you – did you force sex on her?

A: No. No.

Q: We talked about this yesterday. Why did she

have sex with you?

A: It was for crack cocaine.

Q: Okay. And where was that sexual act

performed at?

A: At the Hancock Motel.

Q: In a motel room?

A: Yes.

3

Q: Was it vaginal? Oral?

A: It was in her butt.

Q: I’m sorry?

A: Up in her butt.

Q: So it’s anal sex?

A: Anal sex, yeah.

Q: Okay. And she did that consensually?

A: She did that with me.

Q: After you completed having sex with her

anally, what did she want from you?

A: Some crack.

Q: Did you have any?

A: Yes.

Q: Okay. Did you give it to her?

A: No, she stole it.

Q: Was there some kind of disagreement or

argument that at that time?

A: Yes.

Q: The next question is: Did she go to a phone

and call the police? Or how did it come about that

she notified a police officer?

A: No, actually the police was already at the

motel. I didn’t know it. She didn’t know it

neither. After I slapped her and the crack fell out

of her mouth she said, "I’m going to call the cops

on you." I said, "Well, go ahead." So she went to

the door she said, "They’re out here." So I came to

look, right?

4

Q: Okay.

A: So she left storming out. So rather than to

let the cops come in the room and find the crack, I

just took the crack and I hid it and I met them,

right? So I walked up to the cops, right, and they

asked me did I know her. I said, yeah. He said,

"Well, she’s – she’s trying to say that you raped

her," you know. I said, "No, I didn’t rape her."

So he asked me what happened, and I told him it

was about crack. It was like the whole ordeal was

about crack. It was a trick – sex for drugs.

(Supp. PC-R. 164-8). Pearson also admitted that he used

Donald Smith’s name in the past when he was arrested (Supp.

PC-R. 177).

In fact, the undisclosed police report introduced at the

evidentiary hearing indicated that "Pine" gave the false name

of Donald Lamar Smith when questioned on June 13, 1986 (Def.

Ex. 13). As a result, a second undisclosed police report was

written on June 13, 1986, alleging that David Pearson had

obstructed a police investigation by giving a false name (Def.

Ex. 14). This police report was also introduced into evidence

at the 2001 evidentiary hearing.

Yet, another undisclosed police report was introduced

into evidence in 2001. It was concerning the homicide on June

23, 1986, and indicated that an individual by the name of

Donald Lamar Smith was questioned at the scene of the homicide

after Mr. Smith indicated he knew information about the manner

5

of death that had not been released to the public (Def. Ex.

18).

Donald Lamar Smith testified at Mr. Holton’s 2001

evidentiary hearing. Mr. Smith told the court that he knew

David Pearson, aka "Pine", because they grew up together (T.

238). One morning, in June, 1986, Katrina Graddy came to Mr.

Smith’s house on Harrison Street. Mr. Smith testified:

. . . she came up and asked me to come, can I

ask you something and I said what and she said that

Pine had just raped me. Um, she say that she said

what is your full name and I said Donald Lamar Smith

and she said is your birth date 9-25-57, and I said,

yeah.

* * *

She said well, Pine used your name last night,

yesterday, I think. She said to me Pine raped me

and used your name and told the police --

(T. 240). Mr. Smith testified that Ms. Graddy had bruising on

her neck and she told Mr. Smith that "Pine" choked her and

forced her to have sex (T. 241). Mr. Smith testified that Ms.

Graddy explained that Pine gave her some [crack] rocks, but

she would not have sex with him, so Pine raped her (T. 242).

Thereupon, Mr. Smith and Ms. Graddy left his house and ran

into Pearson (T. 242). Donald Smith testified:

Q: (By Ms. McDermott) Did you say anything to

Pine?

A: Yes, I said, Pine, I said why in the f**k did

you use my name and did this girl.

6

Q: Okay, you told him that why did he use your

name when he raped that girl . . .?

A: Yes, but before I got finished she went

hollering at him.

Q: What did she say to Mr. Pearson?

A: She’s going to get his ass if that’s, that’s

what she’s going to do, you know, you smoked my

s**t.

Q: Okay, and did Pine also tell her that I’m

going to kill your ass?

A: Yes.

Q: For calling the police on me?

A: Yes.

Q: Mr. Smith, when Katrina and Pine were arguing

what happened?

A: Oh, well I kept walking about but people

started coming out.

Q: Okay and why did people start coming out of

their houses?

A: They were getting to loud.

(T. 243).

A week or so later in June of 1986, Mr. Smith noticed

that a house on Scott Street was on fire (T. 244). Mr. Smith

went over to see what was happening (T. 244). On his way to

the house, he saw Pearson "walking fast towards" him (T. 244).

Pearson told him that Katrina was found in the house strangled

(T. 244). Mr. Smith proceeded to walk to the crime scene and

7

when he got near the abandoned house he said: "they found

Katrina strangled" (T. 244). The police questioned Mr. Smith

and asked how he knew the information about Katrina (T. 245).

Mr. Smith told them that someone had told him, but he did not

mention Pearson’s name because there were several people in

the area (T. 245). After producing identification and

answering questions, the police released Mr. Smith (See Def.

Ex. 22).

At the 2001 evidentiary hearing, Donald Lamar Smith

testified that a few weeks after Ms. Graddy’s murder in 1986,

Pearson was at Mr. Smith’s house getting a haircut (T. 246).

At that time, Pearson told Mr. Smith that he, Pearson, had

killed Katrina (T. 252-53).

At the close of the evidentiary hearing in April of 2001,

the presiding judge indicated his desire to have all of the

physical evidence tested for DNA (T. 384-87). When the

testing was completed, closing arguments were scheduled for

June 25, 2001. ASA Chalu appeared on that date and asked for

a continuance "until I’ve had an opportunity to have a

conference in my office to determine exactly what position

we’re going to take and what argument needs to be made" (T.

494). Mr. Holton did not oppose the continuance "as long as

we can get this matter set as quickly as possible" (T. 498).

8

ASA Chalu responded, "I’m going to try to get this in front of

our homicide committee on a regular scheduled meeting for

Thursday afternoon" (T. 498). Thereupon, closings were

scheduled for Friday, June 29, 2001.

continuance of the closing arguments. He explained that David

Pearson had been located and had provided a saliva sample (T.

394). ASA Chalu argued:

Your Honor, not withstanding the fact that Mr.

Holton is - - has been convicted of this offense,

the defense has always maintained that he was

innocent and his primary argument has been this

alternative suspect of David Pearson.

Well now we know where David Pearson is. We

have David Pearson’s DNA and it seems to me that the

defense would be willing to agree to have this DNA

tested for the purposes of determining either

including or excluding Mr. Pearson as a suspect.

So, Your Honor, not withstanding the State has

maintained that Mr. Holton is the perpetrator of

this crime and he stands convicted of that we think

it’s in the interest of justice and the interest of

pragmatics to have all of this tested and also

compared to Mr. Pearson’s DNA before a final

determination is made.

(T. 395-96).

Mr. Holton’s collateral counsel responded first by noting

that "the State has Mr. Pearson out there right now and I can

wave to him, he’s out there [in the hallway]. They brought

him into the courthouse today, you know, this is an odd

9

arrangement" (T. 396). Mr. Holton’s collateral counsel then

argued against a further continuance noting the period of time

that had already past in the postconviction process:

An amended 3.850 was filed in January of this

year and thus the evidentiary hearing. The State

did nothing. The evidentiary hearing happened April

And so, you know, now suddenly you know on this

past Monday when we were supposed to have closing

arguments Mr. Chalu takes Ms. McDermott aside in the

hallway and says, you know, it may be in your

interest to agree for a little continuous [sic] here

because because [sic] we’re having a committee

meeting on Thursday and, you know, if you don’t

agree to this my position is going to have to be the

3.850 should be denied but I may be able to take a

different position after the committee meeting. So

we agreed.

(T. 399-400).

The continuance was denied, and the parties gave their

closing arguments. Mr. Holton’s collateral counsel argued

that the State’s requests to continue the closing argument

amply demonstrated that even the State’s confidence in the

outcome was undermined:

When you examine this case in its entirety I

mean, I understand the State’s predicament. I

understand the desire of the DNA testing. It’s

because in fact the confidence is undermined in the

reliability of the outcome of this trial because

this information is huge and completely changes and

alters the case.

(T. 440-41).

At the outset of his closing, ASA Chalu stated:

10

Judge, in view of the fact that we’re going to

be testing doing DNA testing regarding not only Mr.

Holton but Mr. Pearson I’m asking the Court for

leave to submit the transcript of our interview with

Mr. Pearson yesterday to the Court with a copy to

the defense counsel because I think it may be very

relevant to this Court’s determination later in this

matter.

And, Judge, I would point out that we have been

looking for Mr. Pearson for quite some time. He had

been at large for quite some time and when he was

released from the county jail and he was arrested on

a new charge which occurred about the same time that

this evidentiary hearing in this case was back in

April and when he was released on Sunday we asked to

speak to him and got that transcript I think that’s

highly relevant, Judge, and this request that you

permit leave to file that with the Court and a copy

to counsel in conjunction with the DNA inquiries.

(T. 443-44). Over objection, the circuit court granted the

State the opportunity to submit the June 28, 2001, transcript

of Mr. Pearson’s sworn statement (Supp. PC-R. 160).

In his closing, ASA Chalu conceded that Katrina Graddy

had reported that she had been raped by David Pearson. He

argued that she waived prosecution because she had not in fact

been raped, "Katrina Graddy was not telling the truth about

that she was not raped and the fact that it was a sex for drug

deal it would not have changed the outcome of the proceeding"

(T. 448-49). As for Donald Smith’s testimony that David

Pearson had admitted the murder of Katrina Graddy, ASA Chalu

argued that Donald Smith’s testimony was "not credible, Your

Honor, it’s not believable. It’s not entitled to any weight

11

at all" (T. 450).

After the closing arguments were concluded, the presiding

judge took the matter under advisement. On November 2, 2001,

the circuit court issued its order vacating Mr. Holton’s

conviction and granting him a new trial (PC-R. 800-20).

Shortly thereafter, the State announced it would be

appealing the order, but that in the meantime it wished to

withdraw the physical evidence and conduct further forensic

testing. ASA Chalu explained that this request was "so that

we can then move forward and prepare for trial while the

appeal is pending" (T. 517). After the State’s request was

granted, ASA Chalu requested the circuit court "to extend

speedy trial" (T. 520). Mr. Holton’s collateral counsel

opposed the request explaining, "[i]t seems like the State is

going to extend speedy trial and do the notice of appeal in

order to get time to investigate the case and come up with

some evidence against Mr. Holton which they have none now" (T.

520).

Under these circumstances, it is clear that not only was

confidence undermined in outcome, but that the State’s purpose

in filing this appeal was simply to keep Mr. Holton on death

row while it tried to find some evidence to justify a retrial.

8, 15)(herinafter IB). The correct spelling of the victim’s

name is Katrina Graddy.

12

At approximately 6:00 a.m. on June 23, 1986, the Tampa

Fire Department was dispatched to 1236 E. Scott Street because

an abandoned house was on fire (R. 205). Upon arriving at

surrounded by garbage and debris (R. 209). Fire Investigator

Brown testified:

I observed the victim, a black female, who was

laying on her back in a spread eagle position with

her head to the east and her feet to the west. She

was laying on what appeared to be her clothing, and

she had a cloth tied around her throat and one of

her wrists, and a bottle lying between her legs.

(R. 217). The fire fighters extinguished the incendiary fire

that was estimated to have burned for three to four hours (R.

213).

Later that morning, the police spoke with Carrie Nelson,

a woman who lived behind the abandoned house. She told the

police that she and Willie Dan Simmons sat on her porch the

evening before the fire and she saw Rudolph Holton enter the

house at approximately 11:00 p.m. (R. 592). According to

Nelson, Mr. Holton wore a white tee shirt with red writing on

wore a white tee shirt with red lettering, (IB at 16),

however, Appellant fails to point out that Nelson testified

that it was not the tee shirt that had been obtained from Mr.

Holton’s room at Mr. Clemmons’ house and introduced into

evidence (R. 597).

13

went into her house around midnight (R. 594).

That same day, the police interviewed Johnny Newsome.

The police approached Newsome and requested that he speak to

them at the police station (R. 358, 464). The police informed

Newsome that they were looking for Rudolph Holton (R. 464).

Newsome placed Mr. Holton, carrying a black shaving bag, with

Ms. Graddy at the abandoned house (R. 350). Newsome testified

and Ms. Graddy on the side of the abandoned house, talking (R.

351). However, Newsome’s testimony about the time was

inconsistent with the statement he provided to the police. In

his statement, Newsome told the police that he saw Mr. Holton

"just after dark" or at "dusk" (R. 465). Newsome also told

the police that he saw Mr. Holton on the morning Ms. Graddy’s

body was found and Mr. Holton was in possession of the black

shaving bag (R. 466).

On July 9, 1986, Mr. Holton was charged by indictment of

first degree murder, sexual battery and arson in the first

14

degree (R. 795).

On July 25, 1986, defense counsel, Mina Morgan, filed a

Motion for Police Reports in which she requested "any police

reports" (R. 799). Trial counsel renewed this request the

weekend before trial (R. 847).

During the defense’s investigation, counsel learned from

the victim’s family and friends that Ms. Graddy had reported

that she was raped approximately a week before her murder by a

man who used the street name of "Pine". In her first motion

for continuance, trial counsel informed the court that she was

investigating the information about Pine’s rape of Katrina

Graddy (R. 817-9). The court denied defense counsel’s motion.

Further, on October 29, 1986, trial counsel requested

additional funds for her private investigator. Among the

reasons why counsel needed additional funds was that she

believed she had ascertained the true identity of Pine and was

investigating the rape further (R. 823-6). The court

authorized additional funds for the defense investigator (R.

828).

On December 1, 1986, just five months after Ms. Graddy’s

murder and Mr. Holton was indicted, Mr. Holton’s capital trial

began.

At trial, the State presented the testimony of Nelson and

the hitchhiker’s tee shirt was red (R. 420, 425).

15

Newsome (R. 592-7, 347-68, 591). In addition to Nelson and

Newsome placing Mr. Holton at the abandoned house, the State

elicited testimony from Carl Schenck that Mr. Holton resembled

the person he dropped off across the street from the abandoned

up a hitchhiker (R. 325). He described the hitchhiker as, "A

black male with pretty frizzy hair, a good amount of it,

wearing a white t-shirt with lettering on it, a ball cap with

something embroidered on it . . . and dark blue pants and a

that when shown the photo array he could not make a positive

identification of Mr. Holton and that Mr. Holton’s photo only

"resembled [the hitchhiker] by the shaving bumps and hair."

(R. 344).

Schenck drove the hitchhiker to Tampa and spent several

hours with him smoking marijuana, drinking and going to bars

(R. 331). Around 10:00 or 11:00 p.m., the hitchhiker left

Schenck on Scott Street, near the abandoned house (R. 332).

Schenck passed out in his car and awoke the next morning to

the sound of fire engines (R. 333). The police obtained the

hitchhiker’s black shaving bag from Schenck’s car, where it

Initial Brief (IB at 10, 17, 18, 19, 20, 23, 25, 32). The

correct spelling of Birkins’ first name is Flemmie.

16

had been left by the hitchhiker the previous night (R. 333).

The medical examiner testified that the cause of death

was strangulation (R. 268). Further, Dr. Lardizbal testified

at trial that the fire occurred postmortem (R. 270), and he

noted that the only harm to the victim, other than the

strangulation was that a broken bottle was partially inserted

into the victim’s anus (R. 266).

The State also inquired about the photographs of the

marks on Mr. Holton’s chest. Dr. Lardizbal testified that the

marks appearing in the photographs were consistent with

scratches caused by a hand (R. 278). Dr. Lardizbal opined

that the marks were consistent with healing abrasions that

were between twenty-four and thirty-six hours old at the time

of the photographs (R. 285).

The State’s key witness in the prosecution of Mr. Holton

that he was incarcerated with Mr. Holton on June 26, 1986.

twice. During the first conversation Mr. Holton asked Birkins

for a cigarette and told Birkins that he was charged with

murder (R. 288). Shortly thereafter, around 5:00 p.m., Mr.

that Birkins’ guidelines "called for a sentence of 3 ½ to 5 ½

years in prison" (IB at 11). In truth, at Mr. Holton’s trial

the jury was told that Birkins’ guidelines called for a

sentence of 3 ½ to 4 ½ years in prison.

17

Holton met Birkins in the clinic and told Birkins that: "he

had killed a girl, that he had strangled her." (R. 295, 289).

Mr. Holton then told Mr. Birkins that after he killed the

victim, he went to the Star Service Station on Nebraska to get

a can of gas and he set the house on fire (R. 289).

Birkins adamantly denied that he wanted or was receiving

any benefit for his testimony (R. 290, 301). He initially

told the jury that the three year sentence he was receiving

was based on the sentencing guidelines and accounted for his

testified that he "pled open" which meant that he rejected the

State’s plea offer of three years and would allow the judge to

decide on his sentence (R. 293). Birkins told the jury that

he came forward because "it’s not right for anyone to kill a

young girl" (R. 297).

In regard to physical evidence, the State presented the

testimony of John Quill, a special agent with the Federal

Bureau of Investigation. Agent Quill testified about the

three hairs collected from the victim’s mouth. Agent Quill

conducted microscopic analysis on the hairs and determined

house.

18

that the hairs exhibited, "Negroid characteristics" (R. 316),

and one of the hairs was a "transitional" body hair, i.e. a

hair from the nape of the neck to the head or from the lower

abdomen to the pubic area (R. 322). Agent Quill told the

jury, that based upon the characteristics of the hairs he

could not exclude Mr. Holton as being the source of the hair

(R. 317).

Detective Kevin Durkin testified at trial that he was the

lead detective in the investigation of Katrina Graddy’s murder

(R. 371). Det. Durkin testified that Mr. Holton initially

made a statement that he had previously been in the abandoned

house to use drugs, but that he had not been in the front room

the abandoned house, which had not been secured, and located

an empty Kool cigarette pack and a syringe in the front room

of the house (R. 379). Mr. Holton had already told Det.

Durkin that he used the syringe a few weeks before the crime

and left it on a windowsill in the house. Upon questioning

Newsome near the house the day of the crime, but it was in the

afternoon and Mr. Holton did not enter the house (R. 382,

19

388). Mr. Holton denied that he left the cigarette pack in

the house on the day of the crime and said that the last time

he was in the front room of the house was a few days before

the crime (R. 382-383). A latent fingerprint on the cigarette

pack was identified as Mr. Holton’s right, middle fingerprint

(R. 405).

Mr. Holton voluntarily provided hair, blood and

fingernail scrapings. No other physical evidence, including

items found at the crime scene or in the black shaving bag

were connected to Mr. Holton.

In his defense, Mr. Holton presented an alibi.

Consistent with Mr. Holton’s initial statement to the

detectives, Solodon "Red" Clemmons testified that he lived in

a house Charlotte Street (R. 388, 491). On the night of June

the preceding week or so (R. 494). Mr. Clemmons recalled the

night because Ms. Graddy’s body was found the next morning and

it caused a scene in the neighborhood (R. 496). Mr. Clemmons

testified that Mr. Holton arrived at the house between 9:00

and 10:00 p.m. and went to sleep (R. 495). He saw Mr. Holton

sleeping at 6:00 a.m. when he awoke to take his medicine (R.

497).

Mr. Clemmons believed that Mr. Holton did not leave the

20

house during the night because: 1) he did not hear any noise;

2) his dog had young puppies at the time and would bark if

anyone moved around the house and there was no barking that

night; 3) he didn’t sleep much at night and was not a heavy

sleeper when he did; and 4) his door was locked when he awoke;

the door locked automatically after opening it so it was

necessary to have a key to reenter the house. Mr. Holton did

not have a key to the door (R. 497-9).

Katrina Graddy’s mother testified that she believed

(R. 524). Bernard Black, Katrina’s stepfather, recalled that

Katrina left the house a little later, between 11:00 and 11:30

p.m. (R. 527).

In order to further undermine the State’s case,

particularly the jailhouse snitch’s testimony, Mr. Holton

presented the testimony of Paulette Leonard, the attendant who

worked at the Star Service Station on Nebraska Avenue on the

late evening/early morning of the crime. Ms. Leonard

her they showed her a picture of Mr. Holton and Ms. Leonard

told the police that "she was sure" Mr. Holton did not

21

two (2) people purchased gas in a container during her shift,

an elderly woman with her son and a man she described in his

mid-forties with black and gray hair (R. 482).

At the trial, the defense wanted to present the testimony

of Pamela Woods, one of the last people to see Katrina Graddy

alive. Ms. Woods was properly subpoenaed by defense counsel

(R. 487). Defense counsel requested that the Judge Coe assist

her in locating and bringing Pamela Woods to court because she

was an "essential defense witness" and Mr. Holton could not

secure a fair trial without her testimony (R. 487). Judge Coe

told trial counsel, "There is nothing I can do about it." (R.

489).

When Ms. Woods did not appear, trial counsel was allowed

to present portions of Ms. Woods’ deposition to the jury. The

Assistant State Attorney strenuously objected, "She wants to

be able to argue that somebody else did it named Pine, and the

case law says you are not supposed to do that. You don’t

point fingers at people during trial." (R. 545). Thereafter,

Judge Coe prohibited the defense from introducing portions of

the deposition which discussed the individual known as "Pine"

(R. 548, 551).

The jury heard the following about Pam Woods’ account of

22

the night of Ms. Graddy’s murder:

The witness, Pamela Woods, said at the

deposition that the alleged victim got into an

automobile with a black male, the black male not

being the defendant, at the intersection of Scott

and Nebraska going on midnight, something to twelve

o’clock midnight, June 22, 1986, and that’s the last

time the witness, Pamela Woods, saw her, that is the

alleged victim.

* * *

. . . Pamela Woods, having been shown a picture

of the witness, Schenck, said he looked familiar,

that she thinks she had seen him in the area on the

night Katrina disappeared, that the witness, Schenck

was buying drugs.

The witness, Pamela Woods, and the alleged

victim, Katrina Ann Graddy, were good friends. . . .

Pamela Woods and the alleged victim, Katrina Ann

Graddy, passed by the defendant on two different

nights. Once the defendant asked the two where he

could get some money from. The second time he asked

where he could get some coke from.

The witness, Pamela Woods, gave no time frame as

to when these two alleged encounters with the

defendant took place.

The witness, Pamela Woods, stated at her

deposition that she had never seen the defendant

with the victim. The witness, Pamela Woods, stated

at her deposition that she and the victim got

together about 10:00 p.m. on the evening before the

disappearance of the alleged victim, Katrina Ann

Graddy, and she thinks that they went out on the

streets about 11:30 or 12:00 midnight, the evening

just before the alleged incident.

The witness, Pamela Woods, had never seen the

defendant with a little black case, a shaving kit

type. The witness, Pamela Woods, at her deposition

stated that she saw the defendant on June 22, 1986,

when it was dark out, approximately 8:00 p.m., in

the hole with a black bag, the approximate height

and length of a legal file, this being a legal file,

one foot thick.

The witness, Pamela Woods, further said that the

23

defendant had a lot of change. The witness, Pamela

Woods, further stated during her deposition that

sometime during the evening of June 22, 1986, that

she, Pamela Woods, had smoked some cocaine.

(R. 588-90).

What defense counsel wanted the jury to hear from Pamela

Woods also included that the individual with whom Ms. Graddy

left the area was a man with whom Ms. Woods had "tricked"

previously (Def. Ex. 33, p. 10). The man "kind of scared" Ms.

Woods (Def. Ex. 33, p. 10). Ms. Woods testified that she felt

"[l]ike he would take something, or make you do it if you

didn’t want to do it. Something, he was weird" (Def. Ex. 33,

p. 10). Ms. Woods testified at her deposition that the man

had been rough with her so she got out of the car (Def. Ex.

33, p. 16-17).

Ms. Woods also described her interview with the police

officers about the night of Ms. Graddy’s murder, "[T]hey was

trying to ask me, did Rudolph did it, you know, like they was

saying already that he did it, you know? Trying to make me

say, "Yeah," you know, "he did it," not make me but by them

talking to me and me listening to them . . ." (Def. Ex. 33, p.

14).

As to "Pine", Ms. Woods testified at her deposition that

when she asked if anyone had seen Ms. Graddy on the night of

her murder, she was told that Ms. Graddy walked through the

24

park with "Pine" (Def. Ex. 33, p. 29). Ms. Woods also

described a rape that she and Katrina witnessed take place in

the abandoned house on Scott Street. Ms. Woods said that the

rape occurred the night before Ms. Graddy’s murder and they

could see the male individual hitting the female (Def. Ex. 33,

p. 18-20). Ms. Graddy insisted that the male was "Pine", but

Ms. Woods did not think it looked like "Pine" (Def. Ex. 33, p.

20). Ms. Woods also linked "Pine" to Schenck because she

testified that "Pine" brought white individuals to the area in

order to buy drugs (Def. Ex. 33, p. 28). Additionally, Ms.

Woods linked "Pine" to the black bag. When shown the black

shaving kit, she remarked, "Pine had something like that"

(Def. Ex. 33, p. 35). However, all reference to "Pine" was

excluded from the statement the jury heard.

The State’s argument to the jury focused on Flemmie

Birkins. Assistant State Attorney Joe Episcopo argued:

For the State Attorney’s Office, this case

really begins with Flemmie Birkins. Flemmie Birkins

hears about the murder of the victim and how it was

done. In effect, he becomes an indirect eyewitness

to the account that was given to him by that man.

What motive does Flemmie Birkins have to frame him?

He tells the deputy that same day, four days later,

he talks to our detectives.

What did he get for telling the deputy and

telling the detectives? He lost his trustyship

status. His life was threatened and when he tried

to get an ROR, he couldn’t get it. That’s what he

got. And he still came into court yesterday or the

day after yesterday and, under oath from this stand,

25

told you the same exact account that he told those,

the deputy and detectives months ago. What is his

motive?

* * *

. . . What is the crux of that confession? "I

killed the girl and burned her and strangled her."

Those are the three key elements, burning,

straggling, (sic), killing and sex and rape. They

are all there. There are some details that are not

exact, that’s right, but what is his motive to lie?

* * *

Detective Childers tells you he is a unique

informant, and he is a unique informant and a unique

snitch. Why? I’ll tell you why. Because, ladies

and gentleman, this is a horrible crime, and that’s

why he came forward. That’s right. He has got

eight convictions but under the sentencing

guidelines, he scores out to three-and-a-half to

four-and-a-half years, and those are scored in, and

he’s got two more waiting.

So for his ten crimes, he gets three-and-a-half

to four-and-a-half. That is how horrible a criminal

he is.

(R. 705-7). The State also focused on the hairs found on the

victim’s mouth and argued that the hairs linked Mr. Holton to

the crime:

Hairs. No, we can’t say these are the hairs of

the defendant. We never purported to say they were

the hairs of the defendant. We wanted to show that

she died with Negro hairs in her mouth. We can say

that they are not her hairs. You know why? Because

they came from either here or here or back here.

That is what Quill said.

How are hairs down there going to get in her

mouth? And there are no Caucasian hairs. Proof

beyond a reasonable doubt, Negro hairs in her mouth

from a certain location on the body, and I would

just defy anybody to tell me how those are her

26

hairs, how she got them.

(R. 707-8). In response to defense counsel’s argument that

the State had not proved a motive, the State hypothesized

that Mr. Holton and Katrina Graddy agreed to exchange drugs

for sex (R. 716-7). The State argued that Mr. Holton and Ms.

Graddy met in the abandoned house between 11:00 p.m. and

midnight and they decided to meet later at the house so that

they could have sex and Mr. Holton would provide drugs for

Ms. Graddy (R. 717). The State told the jury that,

"sometime, 2:00, 3:00 in the morning, whatever, they met.

They went into the house and something went wrong" (R. 717).

The State concluded by telling the jury:

He doesn’t like this woman. He hates this

woman. Why does he hate this woman? Because you

can see what he did with this bottle. That’s the

charge he has been charged with. That’s right.

There is no evidence of semen. But that was because

our bigshot over here couldn’t do it, and he killed

her because he couldn’t, because she wouldn’t help

him, because she wouldn’t satisfy him. Maybe she

hurt him with that free hand. Maybe she grabbed him

somewhere and squeezed him. Maybe he lost his

temper.

(R. 719).

During the jury’s deliberations, Pam Woods arrived at the

courthouse. The court did not interrupt the deliberations to

allow the defense to present Ms. Woods’ testimony. Oddly

enough, during the deliberations, the jury requested a copy of

contact occurred between the State and Judge Coe in

preparation of a sentencing order imposing a death sentence,

and that as a result, a re-sentencing was required.

Accordingly, discussion of the penalty phase proceedings of

Mr. Holton’s trial is unnecessary. Mr. Holton would just note

that the entire penalty phase lasted less than an hour (R.

885), and that the jury, after deliberating 37 minutes,

recommended a death sentence by a vote of 7 to 5.

27

Ms. Woods’ statement and without objection from the parties

the court provided the jury with the written statement the

court had previously read (R. 744). The jury found Mr. Holton

On December 15, 1986, trial counsel filed a Motion for

New Trial which included the argument that Mr. Holton did not

receive a fair trial because of the court’s failure to grant a

continuance so that the defense could present the testimony of

Pamela Woods (R. 867-8). On December 30, 1986, a hearing was

held in which Judge Coe denied the defense’s motion for new

trial (R. 985).

On January 5, 1987, Mr. Holton filed a Notice of Appeal.

Mr. Holton filed his initial Rule 3.850 motion in

January, 1993 (PC-R. 46-91). After filing his motion, the

parties litigated public records (Supp. PC-R. 18-24, 35-7).

In August, 1996, the State responded to Mr. Holton’s

28

initial 3.850 motion (PC-R. 92-103).

Mr. Holton filed his second amended Rule 3.850 in July,

1998, and he asserted that he was innocent of the crimes for

which he was convicted and sentenced (PC-R. 140-266).

A few days after filing his motion, Mr. Holton also filed

a motion to perpetuate the testimony of Willie Dan Simmons, a

critical defense witness, because Mr. Simmons was ill with

lung cancer (PC-R. 339-41). On September 2, 1998, the court

granted the motion (PC-R. 342).

In August, 1998, Mr. Holton sought the disclosure of

grand jury testimony because notes in the State’s files

reflected a material discrepancy between Detective Durkin’s

testimony before the grand jury and his trial testimony (Supp.

PC-R. 76-8). The State informed Mr. Holton and the circuit

court that the court reporter’s notes from the grand jury

proceedings had not been transcribed and were destroyed (Supp.

PC-R. 268-9).

On September 29, 1998, the State responded to Mr.

Holton’s second amended Rule 3.850 and urged the circuit court

to summarily deny Mr. Holton’s claims (PC-R. 267-338).

On December 22, 1998, Mr. Holton filed a Motion to

Inspect, Examine and Test Evidence (PC-R. 357-8). Mr. Holton

requested that he be allowed to test the three hairs found on

29

the victim’s mouth with mitochondrial DNA (mt DNA), testing.

After a Huff hearing was held, on January 29, 1999, the

circuit court granted Mr. Holton an evidentiary hearing on

several claims (PC-R. 360-83).

In February, 1999, the State filed a Motion for Rehearing

requesting the circuit court to limit the scope of the

evidentiary hearing. (PC-R. 439-42).

Also in February, 1999, Mr. Holton’s counsel left her

employ with the Capital Collateral Counsel for the Middle

Region (CCC-MR). Mr. Holton requested that the circuit court

associated with litigating his Rule 3.850 motion (Supp. PC-R.

358-80, 381-91). The court granted Mr. Holton’s motion (PC-R.

443). CCC-MR appealed the court’s order. Holton v. State,

Case No. 95,141. In May, 1999, Mr. Holton requested that the

circuit court transfer the representation of his case from his

Northern Region, because his attorney had accepted a position

with CCC-NR (PC-R. 458-9, Supp. PC-R. 397-403). In June,

1999, the court granted Mr. Holton’s motion (PC-R. 460-1).

CCC-MR moved to dismiss the appeal to this Court and this

Court granted that motion.

30

In September, 1999, Mr. Holton filed an extensive

memorandum in support of his motion to test evidence (PC-R.

480-8). On December 6, 1999, the court granted Mr. Holton’s

motion for DNA testing on the three hairs obtained from the

victim’s mouth (PC-R. 500-2; Supp. PC-R. 419-25). That same

day the court denied the State’s motion to limit the scope of

the evidentiary hearing (PC-R. 543-4; Supp. PC-R. 419-25).

On August 3, 2000, the State and Mr. Holton entered a

Joint Stipulation stating, "The State concedes error which

requires a new penalty phase. Specifically, the State

acknowledges error as to Claim X of Defendant Holton’s Rule

3.850 motion." (Supp. PC-R. 121-2). Claim X was the claim

regarding the State’s improper preparation of the Mr. Holton’s

sentencing order. Due to the stipulation, Mr. Holton withdrew

his claims regarding penalty phase errors (Supp. PC-R. 121-2;

Supp. PC-R. 464-9).

On January 8, 2001, Mr. Holton amended his Rule 3.850

with the results of the mt DNA analysis, which excluded Mr.

Holton from being the source of the hairs found on the

victim’s mouth (PC-R. 545-633).

After a hearing on February 19, 2001, wherein the State

conceded that an evidentiary hearing should be held on Mr.

Holton’s Brady and Giglio claims, the circuit court entered an

31

order expanding the scope of the evidentiary hearing to

include those issues (PC-R. 634-5; Supp. PC-R. 473-9).

The evidentiary hearing was held on April 18 - 20 with

closing argument on June 29, 2001. At the evidentiary

hearing, Mr. Holton presented evidence that David Pearson, aka

"Pine", the individual who Katrina Graddy maintained anally

raped her ten days before her murder, confessed to murdering

Ms. Graddy shortly after the crime.

Mina Morgan, Rudolph Holton’s trial attorney testified

that she had been appointed in July, 1986, to represent Mr.

Holton (T. 280). In discussing her representation of Mr.

Holton, Ms. Morgan testified about her schedule in the four

months from her appointment to Mr. Holton’s capital trial. In

those months, Ms. Morgan was involved with several trials,

including a two week trial that immediately preceded Mr.

Holton’s case (T. 282). The two weeks preceding Mr. Holton’s

trial, Ms. Morgan worked eighteen hour days on another case

(T. 283). Essentially, Ms. Morgan prepared for Mr. Holton’s

trial over Thanksgiving weekend (T. 283). She testified, "I

went to trial in December because I was dragged there

screaming and kicking and knowing that I wasn’t adequately

prepared." (T. 333).

As to her theory of defense, Ms. Morgan wanted to prove

32

that Mr. Holton was innocent (T. 287). In order to establish

that Mr. Holton was innocent, Ms. Morgan tried to investigate

other suspects (T. 287-8). Ms. Morgan hired Sonny Fernandez

to assist in the investigation of Mr. Holton’s case (T. 70).

During the pretrial investigation, the defense learned

that the victim claimed she had been raped about a week before

her murder by an individual who used the street name "Pine"

(T. 284). The victim’s family and friends told Ms. Morgan and

her investigator about the rape (T. 85-6, 285, Def. Exs. 19,

20, 21, 31 & 32). The victim’s stepfather, Bernard Black,

testified at his deposition:

A: . . . Katrina had told me a week before this

happened to her, that Pine had raped her and then,

see they had picked him up but he had used another

name by the name of Donald something. And that’s

about all I know about Pine.

Q: Did Katrina tell you whether or not she

reported the rape to the police?

A: Yes, she did. She said she reported it.

Q: Do you know if she used her own name when she

reported it or if she was --

A: No, she – I don’t think so. I don’t think so

because she had a warrant out on her, too, because

she had got picked up for prostitution . . .

(Def. Ex. 20, p. 6). "Pine" became Ms. Morgan’s primary

suspect (T. 288).

Despite her investigation, trial counsel could not

33

ascertain the true identity of "Pine", although at one time

she thought that she had discovered who "Pine" was (T. 287).

Mr. Fernandez corroborated trial counsel’s recollection as to

the defense’s inability to ever learn "Pine’s" true identity

(T. 85). Mr. Fernandez also testified to his efforts in

attempting to ascertain "Pine’s" identity, "I contacted the

informants. I was up and down Nebraska Avenue talking to

different people and I’d go to the Kentucky Fried Chicken and

sit there for a couple of hours talking to people that came in

and out. It was right down the street from the crime scene."

(T. 98). To Mr. Fernandez’ knowledge, the police did not

investigate "Pine" in regards to Ms. Graddy’s murder (T. 99).

At the evidentiary hearing, Ms. Morgan reviewed two

police reports, both arising out of the same incident and

dated June 13, 1986, ten days before Ms. Graddy’s murder. Ms.

Morgan testified that neither document was disclosed to her

before Mr. Holton’s trial (T. 289)

In fact, the police report introduced as exhibit 13

stated:

INTERVIEW: B/F complainant stated that she

voluntarily went to the suspect (sic) room at the

Park II Motel to engage in conversation. After (10)

minutes the suspect ordered her to remove her

clothes "or else". She became frightened and

removed her clothes. He then grabbed her from

Lamar Smith. (IB at 21, 22). Mr. Smith’s first name is

Donald.

34

behind the neck and forced her face down on the bed.

He then forced anal intercourse on her against her

will. The complainant also advised that they had

both smoked rock cocaine voluntarily prior to this

sex act. The complainant does not wish to have the

suspect arrested at this time.

(Def. Ex. 13). The police report also reflects that Ms.

Graddy signed a complaint withdrawal affidavit which stated,

"I may request an arrest warrant at a later date if I so

desire." (Def. Ex. 13). And, despite the fact that Ms. Graddy

withdrew the complaint regarding the sexual battery, Pearson

was arrested and charged with obstruction by disguising

identity (Def. Ex. 14).

In her testimony, Ms. Morgan noted that the reports

included information that David Lorenzo Pearson identified

the significance of the undisclosed reports:

[H]ad I had exhibit 13 and 14 I would have seen

a tie between Pine, David, David Pearson. Pine

being

David Pearson and also a connection between him and

Donald Smith.

Through Donald Smith I would have known they

knew each other and I could perhaps have gotten out

of Donald Smith where to find Pine, what Pine’s real

name was and could run him down. It would also have

been very significant to know that Katrina Graddy

ten days before her death had made a complaint about

Pearson claiming that he had anal intercourse with

35

her. That she eventually dropped that charge but

that he did get, he did get interviewed for it and

ended up being arrested not for that charge but for

giving a false name.

* * *

Q: (By Mr. McClain) . . . In terms of the anal

sexual assault did that in fact tie into the manner

in which she was found dead?

A: It did in my mind because it was a broken

bottle crammed up her anus.

Q: So that would be something that from your

perspective as a defense attorney would have been

significant if you had the report showing that it

had been an anal sexual assault?

A: Yes, it would have.

(T. 291-2). Mr. Fernandez agreed with Ms. Morgan’s assessment

that the police reports were relevant and significant (T. 91).

Indeed, ASA Episcopo testified that he was aware that Ms.

Morgan was pursuing a lead regarding a prior alleged rape of

the victim (T. 49). Mr. Episcopo also stated that had he had

any reports about the rape he would have disclosed them (T.

rape, Mr. Episcopo agreed that, "[t]here was, could be a

connection" (T. 51). Mr. Episcopo had no recollection as to

whether he turned over the police reports to defense counsel

(T. 53).

Ms. Morgan also reviewed a police report dated June 23,

depositions of any officer who submitted a report. Officer

Lawless signed a report, other than the "Donald Smith" report

with Officer Southwick. Thus, Ms. Morgan was led to believe

that Officer Lawless did not have any additional information

from Officer Southwick and she only deposed Officer Southwick

(T. 296-9, Def. Ex. 30).

36

1986, which contained information about Donald Lamar Smith and

asking if Katrina had been "choked" (T. 291; Def. Ex. 18).

Initially, Ms. Morgan believed that she had received the

report at the time of Mr. Holton’s trial. (T. 293). However,

after reviewing her original trial file and notes, Ms. Morgan

did not find the report and stated that she did not receive

Officer Lawless’ report concerning Donald Smith because she

Further, Mr. Fernandez, the trial investigator never saw the

report at the time of Mr. Holton’s trial (T. 82).

Mr. Smith was not listed on the State’s discovery to Ms.

Morgan (T. 295, R. 810-5, 822). The report indicates that Mr.

Smith was interviewed by Det. Durkin, the lead detective in

the investigation, and Det. Durkin testified at the

evidentiary hearing that he had no recollection of such an

interview (T. 378). Further, despite the indication that Det.

Durkin interviewed Mr. Smith, none of his reports indicate

interview occurred with Paulette Leonard, Solodon "Red"

Clemmons or Willie Dan Simmons, yet, all three individuals

were interviewed by the police. In addition to Donald Smith,

Leonard, Clemmons and Simmons all had information that

supported Mr. Holton’s claim of innocence and undermined the

prosecution’s case. At the evidentiary hearing, Detective

Noblitt characterized Mr. Clemmons alibi, "He didn’t know

anything beyond when Mr. Holton went to bed that night." (T.

366). Det. Noblitt indicated that he did not think this

information was relevant.

37

Trial counsel testified that the Donald Smith police

report contained specific identifying information for Mr.

Smith, including his address and Florida driver’s license

number (T. 300). Ms. Morgan believed that with this

information she could have located Mr. Smith (T. 300). In

assessing the value of the police report, Ms. Morgan

testified, "I would have wondered how this individual would

know [the victim] was choked at all . . . he would have been a

suspect in my mind." (T. 301). Likewise, Mr. Fernandez

testified, "someone came up . . . and was giving information

that the general public would not have knowledge of." (T. 84).

The connection of Pearson to "Pine" was also significant

to trial counsel because during Pamela Woods’ deposition, she

testified that "Pine" brought white people into the

of Pearson. He testified that Pearson resembled the

hitchhiker more than Mr. Holton.

(Def. Exs. 40, 43 & 44).

38

neighborhood to buy drugs (T. 305). Thus, Ms. Morgan would

have shown a picture of Pearson to Carl Schenck, the white

male who brought the hitchhiker from St. Pete to Tampa, in

In fact, Carl Schenck testified at the evidentiary

hearing. He reiterated that, at trial, he did not positively

identify Mr. Holton as the hitchhiker. After viewing photos

of Mr. Holton and Pearson from 1986, (not knowing who was

depicted in the photos), Schenck selected the photo of Pearson

as resembling the hitchhiker more than the photo of Mr. Holton

(T. 163; see also Def. Ex. 26). Schenck testified that the

Schenck identified Mr. Holton’s photo in 1986, he remarked to

the officer that Mr. Holton had "cleaned up" and the officer

told him, "they had to do everything they can to change his

appearance." (T. 169). Schenck also revealed that before he

testified in 1986, the police told him that they had the right

guy and Mr. Episcopo showed him a photo of the victim at the

crime scene, nude (T. 170-1).

39

Pearson’s connection to Ms. Graddy’s murder was further

developed because Pearson’s criminal records included

references that Pearson carried a black leather pouch, with a

description similar to the shaving bag obtained from Schenck’s

car the morning that Katrina Graddy’s body was discovered

(Def. Ex. 15 & 16). In fact, Pam Woods testified in her

deposition that "Pine" carried a small black pouch (T. 309,

Def. Ex. 33, p. 35). Trial counsel testified that she would

have followed the Pearson connection to the black pouch had

she had "Pine’s" name so that she could research his criminal

history (T. 308).

ASA Episcopo did not recall turning over the documents

regarding David Pearson being seen with a black pouch (T. 54).

Additionally, he believed that the documents were too vague

for him to even be aware of them, but he did concede that

Pearson’s case was in the division which he oversaw (T. 54,

56).

Unfortunately, trial counsel never discovered that "Pine"

was David Pearson or Donald Smith’s connection to the Graddy

homicide. Had trial counsel known of Donald Smith’s statement

at the crime scene or his connection to Pearson, aka, "Pine",

she would have discovered that Donald Smith provided evidence

that Pearson killed Ms. Graddy.

interviewed Mr. Smith he lived in a house on Harrison Street –

the same house he lived in since 1986.

Smith’s testimony about the events that transpired a few days

before Ms. Graddy’s murder. Ms. Smith testified that in 1986,

she and Donald Smith lived together on Harrison Street (T.

149). Ms. Smith knew Pearson, or "Pine" as she called him,

from grade school (T. 150). Ms. Smith was also familiar with

Katrina Graddy because she went to school with her sister (T.

150). Ms. Smith recalled that sometime in mid-June, 1986,

40

Donald Smith testified at Mr. Holton’s evidentiary

hearing. Mr. Smith told the court that he knew David Pearson,

aka, "Pine", because they grew up together (T. 238). One

morning, in June, 1986, Katrina Graddy came to Mr. Smith’s

. . . she came up and asked me to come, can I

ask you something and I said what and she said that

Pine had just raped me. Um, she say that she said

what is your full name and I said Donald Lamar Smith

and she said is your birth date 9-25-57, and I said,

yeah.

* * *

She said well, Pine used your name last night,

yesterday, I think. She said to me Pine raped me

and used your name and told the police –

(T. 240). Mr. Smith testified that Ms. Graddy had bruising on

her neck and she told Mr. Smith that "Pine" choked her and

forced her to have sex (T. 241). Mr. Smith testified that Ms.

Graddy explained that Pine gave her some crack rocks, but she

Katrina came to the Smith house and asked for Big Donald (T.

151). Ms. Smith was present when Katrina told her husband

that Pearson raped her and used Donald Smith’s name when he

spoke to the police (T. 151). Mr. Smith told Katrina that he

would straighten it out (T. 152).

41

When Mr. Smith and Ms. Graddy left his house they ran

into Pearson (T. 242). Donald Smith testified:

Q: (By Ms. McDermott) Did you say anything to

Pine?

A: Yes, I said, Pine, I said why in the f**k did

you use my name and did this girl.

Q: Okay, you told him that why did he use your

name when he raped that girl . . .?

A: Yes, but before I got finished she went

hollering at him.

Q: What did she say to Mr. Pearson?

A: She’s going to get his ass if that’s, that’s

what she’s going to do, you know, you smoked my

s**t.

Q: Okay, and did Pine also tell her that I’m

going to kill your ass?

A: Yes.

Q: For calling the police on me?

A: Yes.

Q: Mr. Smith, when Katrina and Pine were arguing

what happened?

A: Oh, well I kept walking about but people

started coming out.

Q: Okay and why did people start coming out of

their houses?

42

A: They were getting to loud.

(T. 243).

A week or so later, Mr. Smith noticed that a house on

Scott Street was on fire (T. 244). Mr. Smith went over to see

what was happening (T. 244). On his way to the house, he saw

Pearson "walking fast towards" him (T. 244). Pearson told him

that Katrina was found in the house strangled (T. 244). Mr.

Smith proceeded to walk to the crime scene and when he got

near the abandoned house he said, "they found Katrina

strangled" (T. 244). The police questioned Mr. Smith and

asked how he knew the information about Katrina (T. 245). Mr.

Smith told them that someone had told him, but he did not

mention Pearson’s name because there were several people in

the area (T. 245). After producing identification and

answering questions, the police released Mr. Smith.

A few weeks after Ms. Graddy’s murder, Pearson was at Mr.

Smith’s house getting a hair cut. (T. 246). Mr. Smith and

Pearson discussed Ms. Graddy’s murder and Pearson explained

why he killed her, "b***h did smoke my s**t and called the

police, f**k you." (T. 246). Mr. Smith informed his

girlfriend and future wife, Berndoris, and his friend George

Smith about what Pearson told him (T. 246). Mr. Smith

testified that in 1986, if he had been asked he would have

43

testified at Mr. Holton’s trial about the information he

possessed about the rape and subsequent murder of Katrina

Graddy (T. 248).

George Dewey Smith corroborated Donald Smith’s testimony.

George Smith grew up with Pearson and Donald Smith (T. 195).

After Ms. Graddy’s murder, Donald Smith told the witness that,

"Pine had told [Donald] that he had did it" (T. 196). George

Smith confronted Pearson about the confession, and Pearson did

not deny it, but he walked away (T. 197). George Smith also

commented that Pearson was never the same after Ms. Graddy’s

murder (T. 197).

In addition to the compelling evidence of Pearson’s

guilt, at the evidentiary hearing, Mr. Holton also presented

evidence that several documents relating to Flemmie Birkins

and other witnesses had been suppressed.

Assistant State Attorney Joe Episcopo testified that he

prosecuted Mr. Holton in 1986 (T. 37). Mr. Episcopo recalled

that Flemmie Birkins testified that Mr. Holton confessed to

Birkins while they were incarcerated in the jail (T. 38). Mr.

Episcopo reviewed several documents regarding Birkins

including a handwritten Motion for Probation executed by

Birkins and filed in August, 1986 (Def. Ex. 6). In the motion

Birkins requested that the court impose a sentence of

44

probation and as one of the reasons for the sentence he told

the court that he would assist the Tampa Police Department as

an informant (Def. Ex. 6). Mr. Episcopo could not recall ever

seeing the handwritten motion (T. 39). Ms. Morgan

unequivocally testified that she never received this document

at the time of Mr. Holton’s trial (T. 312).

Mr. Episcopo also reviewed a rap sheet regarding Flemmie

Birkins generated by the Florida Department of Law Enforcement

(FDLE), on November 29, 1986, two days before Mr. Holton’s

capital trial began (Def. Ex. 7). Again, Mr. Episcopo did not

recall disclosing Birkins’ criminal history (T. 40), and Ms.

Morgan was certain that she did not receive this document,

despite her request (T. 312). Ms. Morgan testified that had

she had Birkins’ criminal history she could and would have

correctly computed his sentencing guidelines (T. 312).

Ms. Morgan also reviewed a sentencing guidelines

scoresheet prepared for Birkins (Def. Ex. 9). The document

reflected that Birkins sentencing guidelines required that he

serve a sentence between nine to twelve years for his pending

offenses. Ms. Morgan was never made aware that Birkins faced

more than three-and-a-half to four-and-a-half years in prison

(T. 311).

Approximately two weeks after Mr. Holton was convicted

45

and sentenced to death, but before his motion for new trial

was argued, Birkins was sentenced. Mr. Episcopo appeared at

Birkins’ sentencing hearing (Def. Ex. 10). At Birkins’

sentencing hearing the following exchange occurred:

MR. EPISCOPO: The first score sheet was

incorrectly computed by Mr. Byrd of our office at

three and a half to four and a half years and he

took a plea to three years. The true score sheet is

nine to twelve and I guess if you look at the prior

record and the PSI you would see it’s nine to

twelve.

Now here’s what happens: This summer we had a

horrible homicide occur on East Scott Street. On

burned out building and when the firemen entered the

building they found a seventeen year old female

naked, strangled to death with a bottle inserted in

her anus and set on fire. It was truly a horrible

homicide. We had a lot of debris in the house and

just outside a door where the body was found we

located a pack, empty pack of cigarettes, which had

the fingerprint of Rudolph Holton. That discovery

led to the development of Case No. 86-8931. An

indictment for first degree murder, arson and sexual

battery.

On about the fourth day that the defendant

Holton was confined in the Hillsborough County Jail

he told this defendant that he did it. That coupled

with the circumstantial evidence of the fingerprint

and some other witnesses who could put the defendant

near the scene resulted in that indictment.

* * *

I have to say that his testimony, which was the

first thing that we presented in the trial and then,

of course corroborated by the other evidence, led to

the conviction of the defendant. Actually the jury

was out less than four hours in a case that was very

circumstantial and then they recommended death and

he was sentenced to death, and I think that is

significant and his cooperation was significant and

46

the fact that he was never asking for anything

enabled us to present testimony that in itself is

very unusual and went to corroborate his testimony

along with the other evidence in the polygraph. I

think that has to be given some consideration in

this sentencing.

* * *

THE COURT: Mr. Episcopo, you have had a chance

to read the presentence investigation?

THE COURT: The presentence investigation says it

was an open plea. If I understand what you said

just now, Mr. Episcopo, he pled to two and half to

three and a half.

MR. EPISCOPO: Well, from the first time I met

him I asked him what did you plead to and he said

three years. That’s always been his understanding.

That was his testimony on the stand and, of course,

it was presented to the jury that was below the

guidelines. I suppose as some form of impeachment

so his understanding has always been three years.

That’s what is written on the original score sheet

that was prepared by Mr. Byrd. They have crossed

out three and a half to four and a half and have

written in three.

But he does score out clearly out to nine to

twelve and, of course, I would like him to be aware

of that fact there is no question about that.

* * *

THE COURT: Anything you want to say, Mr.

Birkins? I have read your letter.

THE DEFENDANT: I would just like to have a

chance.

THE COURT: Well, you have had many chances.

47

THE DEFENDANT: I realize that, sir.

THE COURT: You have committed some of the most

atrocious crimes. You have certainly committed some

of the most atrocious crimes and have admitted

committing some of the most atrocious crimes that a

person can be charged with, the sexual assaults,

attempted murders, armed robberies.

Anybody have anything further they would like to

say?

* * *

There is not an appropriate sentence that I can

impose in this case. The defendant’s background

totally justifies him being sentenced to life

without the right to parole. This Court and our

entire system of justice is based on fairness. The

fairness of the defendant was he understood he was

pleading to three years when he entered the plea and

I feel to some extent that my hands are tied in that

regard.

* * *

MR. EPISCOPO: Can I make a suggestion? What if

you were to –

THE COURT: I will place him on community control

and require three hundred sixty-four days specified

residency.

MR. EPISCOPO: I was thinking something more

along this line: We do have two counts. You can

sentence less than three years on Count I followed

by a long period of probation.

(Def. Ex. 10, p. 4-11)(emphasis added). Mr. Holton’s trial

attorney was never informed about what occurred at Birkins’

sentencing hearing or about the State’s "error" in computing

discovered (T. 204).

48

While Mr. Episcopo informed the court that he had

disclosed Birkins’ presentence investigation report to Mr.

Holton’s trial counsel, Ms. Morgan testified that had she did

not receive this document (T. 311). Had she been provided

with Birkins pre-sentence investigation she would have been

able to determine that Birkins faced a much lengthier sentence

than what the jury was told (See Def. Ex. 8). In fact,

Birkins did not receive a sentence of three years of

incarceration, rather he was released from jail approximately

one month after Rudolph Holton was convicted and sentenced to

death (Def. Ex. 11). Mr. Holton’s jury was unaware of the

benefit Birkins received: rather than be sentenced between

nine and twelve years, he served less than nine months in the

county jail and then served a term of probation, including one

year on community control (Def. Ex. 11).

At the evidentiary hearing, Mr. Episcopo attempted to

explain the circumstances surrounding his contact with

Birkins. He testified that despite Birkins conflicting trial

testimony about whether or not he had pled to three years or

pled "open", that the documents reflected that Birkins did in

49

fact plead "open" and did not have a specified deal (T. 60).

However, Mr. Episcopo stated that he was under the impression

at the time of Mr. Holton’s trial that Birkins pled to three

years (T. 61).

Mr. Episcopo denied that he explicitly promised Birkins

anything for his testimony at Mr. Holton’s trial; however, he

also explained:

Q: [By Mr. Chalu] Wouldn’t it sometimes be

standard operating procedure when dealing with a

cooperating witness who had charges of his own not

to make him a specific plea offer prior to his

cooperation?

A: Well, no, because you know his testimony

would be tainted and it wouldn’t be as valuable.

Q: Would it also not be wise to make such an

offer before you found out that in fact he was

willing and did testify truthfully?

A: Yeah, you also want to see what’s going to

come out.

(T. 62-3). Mr. Episcopo acknowledged that he in fact provided

consideration for Mr. Birkins at his sentencing hearing (T.

67).

Additionally, in regard to the impeachment of Birkins,

trial counsel testified that she was not told that Birkins was

a confidential informant for the Tampa Police Department (T.

316, see also Def. Ex. 35 & 36). Trial counsel believed that

it would have been beneficial to show that prior to Mr.

50

Holton’s trial, when Birkins was arrested or wanted out of

prison he offered to assist the Tampa Police Department or he

informed the police that he was a confidential informant (Def.

Exs. 35 & 36). In fact, following Mr. Holton’s trial, in

1987, after being arrested for sexual assault, Birkins

contacted Detective Noblitt for assistance (Def. Ex. 37).

At the 2001 evidentiary hearing, Flemmie Birkins

testified that he lied at Rudolph Holton’s capital trial:

Q: (By Ms. McDermott) Now were you aware of how

many years you were facing on the charges . . . what

kind of time were you facing?

A: Yes, ma’am.

Q: What was that?

A: It was like twelve, fifteen years.

Q: Okay. And when you saw Mr. Holton at the

jail did you see that as an opportunity to decrease

the amount of time you were looking at?

A: If you mean that did I see a chance to you

know explore or use him, yeah.

Q: Was this --

A: Not the first two days the third day.

Q: Because you knew him, you knew that here was

your chance to limit your time of the time you might

be looking at?

A: Right.

Q: On your own case. And at that time did you

51

want to get out of jail?

A: Yes.

(T. 122-3)(emphasis added). Birkins indicated that he had

also lied during his deposition and when he provided his

initial statement to the police (T. 147).

Birkins described the modus operandi of a jailhouse

snitch. He explained that he gathered information and details

about Mr. Holton’s case from the news and from guards (T.

123). After gathering information about Mr. Holton’s case he

contacted the State. Two detectives were sent to see him (T.

124). At that time he was shown pictures of the crime scene

and Ms. Graddy’s body (T. 124-5). The detectives made it

clear that Birkins would receive consideration on his charges

52

for assistance in Mr. Holton’s case (T. 125). Birkins

testified against Mr. Holton because he believed it meant he

could get out of jail (T. 127). Birkins was familiar with the

system because he had previously assisted the State (T. 126,

146-147, Def. Exs. 35 & 36).

In fact, a police report authored by Detective Durkin,

the lead detective in the case, reflects that Mr. Holton was

not in the jail at the time that he was allegedly confessing

to Birkins (Def. Ex. 34). Mr. Holton was providing a

statement to the detectives at the police station (Def. Ex.

34).

Similarly, Johnny Newsome also recanted his trial

testimony at the evidentiary hearing. Newsome testified that

he lied at Mr. Holton’s trial (T. 176-7). On the night of the

murder, Newsome did not see Mr. Holton at the vacant house (T.

173). Newsome testified that he never saw Mr. Holton and Ms.

Graddy together (T. 177). Newsome lied at Mr. Holton’s trial

because he was afraid of the police (T. 177, 193).

Indeed, in the months preceding Mr. Holton’s trial,

Newsome was arrested and charged with multiple crimes. In

July, 1986, he was charged with petit theft (Def. Ex. 38).

Newsome failed to appear at his court date and the court

issued a capias. On October 21, Newsome was charged with

53

disorderly intoxication and arrested. The next day, Newsome

was arrested on the outstanding capias for his petit theft

(Def. Ex. 38). As to the disorderly intoxication charge,

Newsome pled guilty and was sentenced to time served. After

being released and failing to appear on his petit theft

charge, again, another capias was issued for Newsome (Def. Ex.

38). In November, Newsome was charged with an aggravated

assault (T. 366-7), but he was not arrested on the outstanding

capias. In fact, the capias existed when Newsome testified at

his deposition and at trial, yet he was not taken into custody

(Def. Ex. 38). A few days after Mr. Holton’s trial, Newsome

was arrested and charged with criminal mischief and on the

existing capias (Def. Ex. 38). Newsome entered a nolo plea on

December 13, 1986, and was given time served (Def. Ex. 38).

Trial counsel was unaware of Newsome’s outstanding charge

and capias. During Newsome’s deposition, trial counsel

inquired:

Q: Do you have any kind of charges pending

against you?

A: Me?

Q: Yes?

A: No. Well, hold it. Wait a minute. Let me

see – no, ma’am. I got another murder case, I mean

I’m a witness to it, but that’s the charge.

Q: No. Not unless – things you have –

54

MR. EPISCOPO: She means charges against you.

Q: – been charged with, things that they’re

prosecuting you for?

A: No.

(Def. Ex. 39, p. 20-21). At trial, Newsome admitted that he

had an aggravated assault charge pending against him, but he

testified that it was the only charge he had against him (T.

367). The State did not correct Newsome’s false testimony

during his deposition or at trial.

Further, Elease Moore knew Johnny Newsome, aka Georgia

Boy, in 1986, and spent the night of June 22, 1986, with him

(T. 268). Ms. Moore and Newsome spent the night in a vacant

house on Estelle Street (T. 268). They met at approximately

9:00 p.m. and they were in the house at 11:00 p.m. (T. 268-9).

Ms. Moore and Newsome drank and had sex; Newsome also smoked

drugs (T. 269). They left the house the next morning and saw

the fire trucks on Scott Street (T. 269). In 1986, Ms. Moore

did not know that Newsome testified at Mr. Holton’s trial.

In regard to the only direct evidence linking Mr. Holton

to Katrina Graddy – the three hairs found on the victim’s

mouth, Mr. Holton presented evidence that mitochondrial DNA

testing conclusively proved that he was not the source of the

hairs (T. 29). The State had previously stipulated to Dr.

55

Terry Melton conducting the mt DNA testing in Mr. Holton’s

case and at the hearing, the State stipulated to Dr. Melton’s

qualifications as an expert (T. 8; see also Def. Ex. 1).

Dr. Melton explained that mt DNA testing had been

recently accepted by courts in the United States and that at

the time of the hearing only five labs conducted mt DNA

testing. (T. 11-2, 26). She also described the significance

of mt DNA testing:

. . . The part of the DNA I’m talking about is

mitochondria DNA. It’s actually found outside the

nucleus in the cytoplasm or the kind of fluid that

is around the nucleus . . .

Mitochondria are like little power houses of

energy for the cell. They involve every cellular

representation they use for energy for the cell and

it turns out they have their very own DNA molecules.

And in spite of the fact that there are only two

types of DNA in the cell the nucleus, in the

mitochondria . . . we have ten to a hundred copies

of mitochondrial DNA and the cell itself can have

hundreds to thousands of copies of mitochondrial DNA

. . .

* * *

It tends to be very useful in cases where

nuclear DNA isn’t available because there are only

two copies of nuclear DNA where a cell has a

thousand copies of mitochondrial DNA . . .

(T. 15-16). Dr. Melton testified that she conducted mt DNA

testing on the three hairs found on Katrina Graddy’s mouth (T.

28). Dr. Melton testified that Mr. Holton’s mt DNA type is

"exclusively different from the type obtained from the[]

hearing, the circuit court requested that further DNA testing

occur on the black bag and the contents of the bag (T. 385-6).

On May 3, 2001, the circuit court entered an order releasing

the black bag and it’s contents to Dr. Terry Melton for

additional DNA testing. (PC-R. 657-8).

56

hairs" (T. 29; Def. Ex. 3). She also concluded that all three

hairs were the same and matched each other (T. 31; Def. Ex.

3). When she compared them to the mt DNA profile of Ms.

Graddy she determined that the profiles were substantially

Dr. Edward Willey, a medical doctor who practices in the

area of pathology, also testified at the evidentiary hearing

about the marks that were on Mr. Holton’s chest when he was

arrested on June 23, 1986 (T. 103). Dr. Willey testified that

he reviewed the photos of Mr. Holton, like Dr. Lardizbal did

at the time of the trial, and he reviewed the transcripts from

the trial. Dr. Willey concluded that the marks on Mr.

Holton’s chest were "likely to be weeks, even months old" (T.

109). Dr. Willey based his opinion on the appearance of the

marks and the literature on how the appearance of wounds

change during the healing process (T. 109-110, see also Def.

Ex. 25). Dr. Willey testified that the medical examiner’s

opinion at trial, that the marks were only twenty-four to

on June 15, 1992 (Def. Ex. 27).

57

thirty-six hours old, was not supported by the photos which

illustrated that the healing process was quite advanced (T.

109-10). Dr. Willey identified scarring on the marks, which

he testified would not be present in a fresh wound. (T. 110).

Also, at issue during the evidentiary hearing was the

credibility of the testimony of Carrie Nelson, the neighbor

Nelson testified that Willie Dan Simmons was on the porch with

her the night of Ms. Graddy’s murder (Def. Ex. 23, p. 12-4).

Both the State and trial counsel were aware of Mr. Simmons (T.

46, 323, Def. Ex. 12). Trial counsel attempted to locate Mr.

Simmons, but was unable to do so (T. 95, 323). At the

evidentiary hearing, Mr. Holton’s postconviction investigator,

Deborah Williams testified that she located Mr. Simmons during

her investigation of Mr. Holton’s case (T. 204). Ms. Williams

located Mr. Simmons by asking people near the Central Park

Homes where she could find "Sissy Dan" (T. 206). Mr. Simmons

told Ms. Williams that on the night of the Graddy homicide,

"he was with Carrie Nelson . . . They saw Mr. Holton walking

along the street passed Carrie Nelson’s house and Mr. Simmons

1998, interviewed Mr. Simmons at his home and obtained a

statement similar to the statement Mr. Simmons provided Ms.

Williams (T. 222-3). Mr. Simmons also informed Mr. Jackson of

his failing health. When Mr. Jackson attempted to locate Mr.

Simmons a few months later, in order to arrange a time to take

his deposition, Mr. Simmons was deceased (T. 224, Def. Ex.

28).

58

said that [Mr. Holton] was headed towards the hole." (T. 207).

Mr. Holton passed by the house around 9:00 p.m. (T. 208). Mr.

Simmons also stated that he didn’t leave Nelson’s house until

indicated that on June 23, 1986, Nelson spoke to Mr. Simmons

and told him that she had finally found a way to stop Mr.

Holton from stealing from her (T. 209). She told the police

that she had seen Mr. Holton enter the abandoned house the

previous night (T. 209). Mr. Simmons argued with Nelson and

told the police at the scene that Nelson was lying about

seeing Mr. Holton enter the house (T. 208-9). Mr. Simmons

told Ms. Williams that he would have testified at Mr. Holton’s

Several months after Ms. Graddy’s murder, Nelson admitted

to Elease Moore that she had lied to the police about Mr.

Nelson told her that she wanted to get even with Mr. Holton

59

because she believed that he had stolen her groceries (T. 270-

1).

At the close of the evidence on April 20, 2001, the

circuit court indicated that it wanted the parties to conduct

additional DNA testing. After the additional testing was

concluded, closing arguments were scheduled for June 25, 2001.

On June 25, 2001, the State requested a brief

continuance, but the court admitted the results of the mt DNA

testing. The parties stipulated to Dr. Melton’s report rather

than introducing testimony (Supp. PC-R. 491-500). After

further mt DNA testing of hairs found in the black bag, Dr.

Terry Melton determined that the hairs found in the bag did

not match either Mr. Holton or Ms. Graddy’s mt DNA profiles;

Mr. Holton and Ms. Graddy were excluded from being the source

of the unknown hairs. (Def. Ex. 41). Thus, an unknown source

of those hairs exists.

On June 27, 2001, the State filed a motion for

continuance and a motion for the return of property in order

to conduct DNA testing. (Supp. PC-R. 133, 134, 135-6). The

next day, the State amended its motions. (Supp. PC-R. 138,

139-40). On June 29, 2001, the State argued the motion to

continue:

. . . we were able to locate David Pearson who

indicated to us that he would give a DNA sample and

60

so we took a saliva sample from him for the purposes

of analyzing his DNA and perhaps comparing it to any

items that was (sic) introduced as evidence at trial

and also he was very cooperative and gave us a

statement, a sworn statement yesterday which I’m

having typed up which will be available next week

where he adamantly denied having any participation

in this murder for which Mr. Holton stands

convicted.

(T. 394). The State argued that they wanted to test Pearson’s

saliva sample and compare his DNA to the DNA profiles that had

been developed in the case but did not match Mr. Holton or Ms.

Graddy (T. 396). Additionally, the State requested that DNA

testing occur on other items of evidence, including the glass

bottle (T. 396).

Mr. Holton objected to any further continuance, arguing

that the State had rested at the April hearing (T. 396).

Counsel reminded the court:

arose before Your Honor to resolve whether or not to

test this hair and what was the State’s position at

that hearing? The State’s position at that hearing

was to oppose the testing. The State argued quite

vigorously against it and the State said, you know,

that’s going to open a pandora’s box . . .

(T. 398). Counsel also stated, "[T]he fact that the State is

trying to say Mr. Pearson has agreed to give blood or saliva

is somehow significant – it’s not significant. Mr. Holton

agreed a long time ago." (T. 399). Finally, counsel explained

the circumstances about what occurred at the hearing scheduled

61

. . . [T]his past Monday when we were supposed

to have closing arguments, Mr. Chalu takes Ms.

McDermott aside in the hallway and says, you know,

it may be in your interest to agree for a little

continuance here because we’re having a committee

meeting on Thursday and, you know, if you don’t

agree to this my position is going to have to be the

3.850 should be denied but I may be able to take a

different position after that committee meeting. So

we agreed.

The next Tuesday, not Thursday when there’s

supposed to be a meeting, Shirley Williams’

secretary calls and says you need to be available at

8:30 a.m. Thursday because we’re going to call up a

motion for continuance. What about the committee

meeting? She explained that they had motions they

were going to be doing. They wanted more DNA

testing.

So I think for the record the representations

made on the record Monday were not correct for

whatever reason.

(T. 400). The court denied the State’s motion for

continuance.

During the State’s closing argument, ASA Chalu requested

that he be allowed to introduce Pearson’s sworn statement into

the record "because it may be very relevant to th[e] Court’s

determination . . .". (T. 443). Over defense counsel’s

objection, the court granted the State’s motion (T. 444).

On July 2, 2001, Mr. Holton objected in writing to the

State’s request for further DNA testing and the procedures the

State sought to employ in obtaining the testing (PC-R. 662-

72). An amended objection was filed on July 17, 2001 (PC-R.

62

703-12). On August 30, 2001, Mr. Holton filed a motion

seeking the taped statement that Pearson provided to the

Office of the State Attorney in June (PC-R. 752-6). Mr.

Holton attached the Tampa Police Department report that

indicated that Pearson admitted that he was in fact the

individual who Ms. Graddy claimed raped her on June 13, 1986

(PC-R. 752-6). In his statement to the police, Pearson also

admitted that he provided drugs to Ms. Graddy and had anal sex

with her, though he maintained that it was consensual (PC-R.

758).

On September 17, 2001, Mr. Holton filed a supplemental

motion for disclosure of David Pearson’s taped statement (PCR.

759-763). Since the State vouched for Pearson’s

credibility at Mr. Holton’s evidentiary hearing, Mr. Holton

attached documents that indicated that after Pearson

‘cooperated’ with the Tampa Police Department he absconded

from his pending criminal charges and was a fugitive from

justice (PC-R. 763). Further, a few days later, Mr. Holton

filed the records regarding Pearson’s pending charges for

aggravated battery, wherein the weapon used was a glass bottle

and from the crimes involving dishonesty, relating to events

that occurred in October, 2000, less than a year before the

State vouched for Pearson’s credibility (PC-R. 764-95).

court admit and consider Pearson’s statement in ruling on Mr.

Holton’s Rule 3.850 claims, yet the statement was transcribed

63

In October, 2001, the State disclosed Pearson’s

statement, at which the State was represented during the

statement by ASA Shirley Williams, ASA Wayne Chalu, Detective

Sandy Noblitt, and State Attorney Investigator Beiniek (Supp.

PC-R. 161). Mr. Holton was not represented at Pearson’s

confirmed much of the substance of the police reports

regarding the events that transpired between he and Katrina

Graddy on June 13, 1986. However, Pearson denied killing Ms.

Graddy:

Q: The reason we came to talk to you is during

this motion hearing I pointed out to you that the

attorneys representing Mr. Holton have advised the

court that you confessed to killing Katrina Graddy

to a gentleman by the name of Donald Smith. Is that

what I told you?

A: Yes.

Q: And I ask (sic) you on your porch to look me

in the eye and asked you if you were responsible for

Katrina Graddy’s death; is that correct?

A: Yes.

Q: And what was your answer?

64

A: No.

* * *

Q: Okay. During our conversation I asked you

about an incident that Katrina reported where she

alleged that you forced sexual relations on her; is

that correct?

A: Yes.

Q: And you explained that to us.

A: Yes.

Q: And how that occurred and where that

occurred?

A: At the Hancock Motel on Florida Avenue.

Q: Did you get arrested for that that night.

A: No.

Q: Did she – tell us what she told the police

once you were talking to the police in regards to

you being arrested.

A: Yeah. She obviously had told them that I had

raped her.

Q: Okay.

* * *

Q: Did you – did you force sex on her?

A: No. No.

Q: We talked about this yesterday. Why did she

have sex with you?

A: It was for crack cocaine.

Q: Okay. And where was that sexual act

performed at?

65

A: At the Hancock Motel.

Q: In a motel room?

A: Yes.

Q: Was it vaginal? Oral?

A: It was in her butt.

Q: I’m sorry?

A: Up in her butt.

Q: So it’s anal sex?

A: Anal sex, yeah.

Q: Okay. And she did that consensually?

A: She did that with me.

Q: After you completed having sex with her

anally, what did she want from you?

A: Some crack.

Q: Did you have any?

A: Yes.

Q: Okay. Did you give it to her?

A: No, she stole it.

Q: Was there some kind of disagreement or

argument that at that time?

A: Yes.

Q: The next question is: Did she go to a phone

and call the police? Or how did it come about that

she notified a police officer?

A: No, actually the police was already at the

motel. I didn’t know it. She didn’t know it

(T. 404).

66

neither. After I slapped her and the crack fell out

of her mouth she said, "I’m going to call the cops

on you." I said, "Well, go ahead." So she went to

the door she said, "They’re out here." So I came to

look, right?

Q: Okay.

A: So she left storming out. So rather than to

let the cops come in the room and find the crack, I

just took the crack and I hid it and I met them,

right? So I walked up to the cops, right, and they

asked me did I know her. I said, yeah. He said,

"Well, she’s – she’s trying to say that you raped

her," you know. I said, "No, I didn’t rape her."

So he asked me what happened, and I told him it

was about crack. It was like the whole ordeal was

about crack. It was a trick – sex for drugs.

(Supp. PC-R. 164-8). Pearson also admitted that he used

Donald Smith’s name in the past when he was arrested (Supp.

PC-R. 177). However, Pearson denied that he ever told Mr.

Smith that he killed Ms. Graddy (Supp. PC-R. 178).

Toward the end of the statement Pearson admitted that he

had approached Donald Smith’s wife, Berndoris, since learning

of her testimony at the evidentiary hearing (Supp. PC-R. 184).

But, Pearson said that he spoke to Ms. Smith in order to "warn

184-5).

Indeed, Pearson’s statement contained inconsistencies

with the version of events he provided to the officers who

The Honorable Daniel L. Perry presided over Mr. Holton’s

postconviction proceedings and granted Mr. Holton a new trial.

67

investigated the sexual battery charge on June 13, 1986. For

example, Pearson denied being arrested, however, he was

arrested on June 13, 1986, for the charge of obstruction by

disguising identity (Def. Exs. 13 & 14). Mr. Holton’s

attorneys were not present at Pearson’s statement and thus had

no opportunity to confront him with the inconsistencies.

On November 2, 2001, the circuit court vacated Mr.

Holton’s convictions and sentences and granted him a new

relief based on Mr. Holton’s Brady claim, newly discovered

evidence claim, and under a cumulative error review (PC-R.

800-20).

The following week, the State filed a motion to release

property so that the State could conduct DNA testing (PC-R.

829-30). The State also filed a Motion to Stay Proceedings

and Extend Speedy Trial (PC-R. 824). The court held a hearing

on November 13, 2001, after which the court granted the

State’s motion to extend the speedy trial time and the State’s

motion for further DNA testing (PC-R. 825, T. 472, 474).

68

The State filed a Notice of Appeal (PC-R. 833). This

appeal follows.

69

Mr. Holton is an innocent man who has spent over sixteen

years incarcerated on Florida’s death row for crimes he did

not commit. Meanwhile, Appellant, with no shame, has embraced

the individual who most certainly murdered, sexually battered

and set on fire Katrina Graddy, David Lorenzo Pearson, in an

effort to preserve an unconstitutional conviction.

Mr. Holton has proved that Appellant suppressed material,

exculpatory evidence throughout Mr. Holton’s trial relating to

almost every lay witness who testified against Mr. Holton.

Additionally, the detectives who investigated Ms. Graddy’s

homicide decided that they would not document any evidence

that could be favorable for Mr. Holton, including the fact

that he had an alibi for the night of the crime, information

that undermined the State’s star witness and evidence that a

witness who placed Mr. Holton at the scene of the crime lied

to the police in order to retaliate against Mr. Holton.

While defense counsel was able to obtain some of the

information that the police did not want her to uncover, much

exculpatory evidence went undiscovered and was never heard by

the jury that convicted and sentenced Mr. Holton to death.

The jury that convicted Mr. Holton never knew that Ms. Graddy

alleged that "Pine" anally raped her ten days before her

70

murder. Ms. Graddy told the police, her friends, her

stepfather, a man named Donald Smith and his girlfriend,

Berndoris. "Pine" who we now know is David Pearson admits

that Katrina Graddy accused him of anally raping her after a

sex for drugs transaction went bad. Pearson was not arrested

for the sexual battery because Ms. Graddy signed a waiver of

prosecution, but he was arrested for attempting to disguise

his identity when the police questioned him. Ms. Graddy was

informed that she could reinstate the sexual battery charges

at a later date, if she wished to do so.

The State suppressed evidence that would have led the

defense to the true story about Ms. Graddy’s murder. The

State also suppressed other evidence about witnesses and

misrepresented evidence to the jury in order to bolster it’s

weak, circumstantial case against Mr. Holton. Confidence is

certainly undermined in the reliability of Mr. Holton’s

convictions.

Additionally, newly discovered DNA evidence now proves

that the jury was misled. Evidence that the State argued was

connected to Mr. Holton was not connected to him. The new

evidence in conjunction with the undisclosed evidence clearly

establishes that Mr. Holton would have been acquitted at his

trial had the jury known of this evidence.

71

Serious constitutional violations occurred at Mr.

Holton’s capital trial. Accordingly, this Court must affirm

the circuit court’s order vacating Mr. Holton’s convictions

and granting him a new trial.

In his motion to vacate, Mr. Holton alleged that either

his trial counsel was ineffective in failing to discover or

the State erroneous failed to disclose exculpatory evidence,

and as a result, Mr. Holton was deprived an adequate

adversarial testing. As collateral counsel explained in his

closing argument in circuit court, "the basis of the motion is

that constitutional error occurred depriving Mr. Holton of a

fair and reliable result of that trial" (T. 416).

In vacating Mr. Holton’s conviction and granting a new

trial, the circuit court determined that trial counsel was not

ineffective in her efforts on behalf of Mr. Holton, but that

the State failed to disclose the exculpatory evidence to trial

72

counsel (PC-R. 808). Thereupon, the circuit court turned to

Mr. Holton’s alternative claim that the State had erroneously

failed to disclose the evidence:

Throughout this claim, Defendant claims the

State violated Brady v. Maryland, 373 U.S. 83, 85

(1963) by failing to disclose facts. First,

Defendant claims the State failed to disclose the

following evidence:

1. A police report regarding a sexual assault

of "Katrina Grant" who had the same address

as the victim.

2. A police report regarding Donald Smith at

the crime scene.

3. A police report regarding an interview with

Donald Smith.

4. A PSI regarding Mr. Birkins’ criminal

history.

5. A motion drafted by Mr. Birkins.

6. The transcript of Mr. Birkins’ sentencing

hearing.

7. A FDLE report.

8. A letter from Mr. Birkins indicating he was

a confidential informant.

(PC-R. 808-09).

After citing the controlling United States Supreme Court

case law, the circuit court found:

73

finds that the State did not act in bad faith and

did not willfully suppress any evidence in this

case. It was only through inadvertence or neglect

that the evidence was suppressed. Consequently, the

Court finds merit to the Defendant’s Brady claims.

As such, the Defendant is entitled to relief with

regard to this claim.

(PC-R. 809)(emphasis added).

In its brief, the State incorrectly articulates the

standard of review for a Brady claim (IB at 37). This Court

has stated:

A trial court’s finding after evaluating conflicting

evidence that Brady material had been disclosed is a

factual finding. As a factual finding, the

reviewing court should uphold the finding as long as

it is supported by competent, substantial evidence

in the record.

Way v. State, 760 So. 2d 903, 911 (Fla. 2000)(citations

omitted). However, "the ultimate question of whether evidence

was material resulting in a due process violation is a mixed

question of law and fact subject to independent appellate

review." Id. at 913; Cardona v. State, ___ So.2d ___ (Fla.

July 11, 2002).

74

In its attack upon the circuit court’s order, the State

overlooks Judge Perry’s decision to credit the testimony of

trial counsel, Mina Morgan. Ms. Morgan testified that: 1) she

was not provided the evidence and information at issue, and 2)

such evidence and information would have been used had it been

disclosed because it was favorable to Mr. Holton.

As to the police reports, dated June 13, 1986, trial

counsel, Mina Morgan, and her investigator, Sonny Fernandez,

categorically stated that they did not receive the reports (T.

289, 89). Even the trial prosecutor, Joe Episcopo, recognized

that this reports were favorable to Mr. Holton when he

testified that had he had any reports about the rape he would

have disclosed them (T. 50).

Ms. Morgan explained that her motion to continue

reflected the importance she attached to learning "Pine’s"

true identity (T. 287). Ms. Morgan testified about her motion

for continuance:

A: [Reading the motion for continuance]. . . A

friend of the victim told the defense investigator

that Pine raped the victim approximately one week

before she was killed.

The rape was reported but the victim used a

false name because there was a warrant out for her

arrest according to her friend. The investigator

ascertained, the investigator ascertained Pine’s

true name through his criminal record and his

photograph.

should not be credited as to her efforts to unmask "Pine,"

then the claim would simply be converted back into

ineffectiveness of counsel. State v. Gunsby, 670 So.2d 920,

924 (Fla. 1996)(a want of diligence on trial counsel’s part

constitutes deficient performance); Smith v. Wainwright, 741

possess exculpatory evidence was due to counsel’s failure to

obtain as opposed to the State’s failure to provide, counsel

was ineffective).

75

Q: Maybe you received a false lead at that point

in time. Do you recall ever being able to actually

determine who Pine was?

(T. 286-287)(emphasis added). Clearly, trial counsel and her

investigator searched for "Pine" and as trial counsel

explained at one time they believed that "Pine" was Johnny

Newsome. Judge Perry credited Ms. Morgan’s testimony when he

found that she had not rendered deficient performance, and he

similarly did so when he determined that the State had failed

to disclose the police reports that would have led Ms. Morgan

As to the "Donald Smith" two-page police report authored

by Officer Lawless, Mr. Fernandez testified that he had never

seen the report until shortly before the evidentiary hearing;

he did not have the report at trial (T. 82). Ms. Morgan

identified on the State’s response to discovery, and thus

available for deposition (IB at 46). However, this ignores

the fact that Officer Lawless’ statement, i.e. his handwritten

police report was not disclosed, as required by Rule

3.220(a)(1)(ii), which in 1986 required disclosure of "[t]he

statement of any person whose name is furnished in compliance

with the preceding paragraph." Moreover, trial counsel

requested discovery of all police reports (R. 799). In

addition to the State’s discovery obligation, the State was

required to turn the report over under Brady. And of course,

the State fails to acknowledge the real problem, the State did

not reveal Donald Smith’s name as person known to have

information which may be relevant under Rule 3.220(a)(1)(i)

(See R. 812).

the circuit court found that trial counsel was not ineffective

(IB at 46-7). However, if trial counsel had the "Donald

Smith" report and failed to locate, interview and present the

evidence she would have learned from Donald Smith she was

ineffective. The circuit court did not find trial counsel

ineffective with regard to the "Donald Smith" report because

the court found that the State suppressed the report. State

76

initially testified that she believed she had the report at

the time of trial (T. 293). However, while upon the witness

stand, she examined her file and concluded, "I didn’t have it"

(T. 296). She found no file existed for Officer Lawless in

to depose any police officer who submitted a report (T. 296-

9). She excused Officer Lawless from his deposition because

he had signed a different six-page police report with Officer

Southwick and therefore she believed it was necessary to

v. Gunsby; Smith v. Wainwright. Since the prejudice analysis

of a Brady claim and an ineffective assistance of counsel

claim is the same, relief is still required if confidence is

undermined in the outcome. See Robinson v. State, 770 So. 2d

1167, 1172 (Fla. 2000), citing Strickland v. Washington, 466

U.S. 668, 694 (1984).

evidentiary hearing by Mr. Holton. After she testified, the

State presented no evidence to refute her testimony that she

had not received Def. Ex. 18. Mr. Holton’s collateral counsel

did question the subsequent witnesses called by the State

regarding Def. Ex. 18. Det. Noblitt testified and indicated

that he had been unfamiliar with the information contained in

the exhibit regarding Donald Smith (T. 373). Similarly, Det.

Durkin had no recollection of the exhibit, even though the

State had shown him the report in the days before his

testimony (T. 378). Det. Durkin did indicate in re-direct

examination by the State that if he had been aware that the

defense did not possess the report, he would have provided it

to the defense "[i]f I had known of its existence of course"

77

To overcome Judge Perry’s factual finding premised upon

the testimony of Ms. Morgan and her investigator, the State

suggests in a footnote that defense counsel might have had the

report because the State’s additional response to discovery,

filed in October 1986, lists an "auxiliary report" (IB at 46,

fn. 20). However, several police reports were executed on

forms that were labeled "auxiliary reports" (See Def. Exs. 29

& 34). No further information is listed on the notice of

discovery, therefore the assumption that the report may have

been disclosed does not provide any credible evidence that

trial counsel and her investigator were incorrect when they

(T. 379).

78

the State did not pursue this contention during the

evidentiary hearing before Judge Perry.

The State also fails to acknowledge that, according to

Officer Lawless’ undisclosed report, Detective Kevin Durkin,

the lead detective in the investigation, interviewed Donald

Smith, yet no report exists and/or no report has ever been

disclosed to indicate that an interview occurred or the

substance of that interview (See Def. Ex. 18). The circuit

court accepted trial counsel’s testimony and made a finding of

fact that the report was suppressed (PC-R. 808).

As to the numerous Flemmie Birkins documents, the State

does not contest Judge Perry’s finding that these documents

were favorable to Mr. Holton and inadvertently undisclosed by

the State. Instead the State assumes non-disclosure and

argues that Judge Perry’s prejudice finding was erroneous (IB

at 49, 56, 58).

Curiously, the State cites the three prong test set forth

by the United States Supreme Court in Strickler v. Greene, 527

U.S. 263 (1999), (IB at 37-8), yet argues to this Court that

the circuit court’s order was in error because defense counsel

could have discovered several of the suppressed documents with

79

due diligence. The State asserts that under Brady, the Court

in Strickler required due diligence by the defense:

The Strickler court further explained that the Brady

element of "due diligence" was not reached, ‘because

it [was] not raised in this case, the impact of a

showing by the State that the defendant was aware of

the existence of the documents in question and knew,

or could reasonably discover, how to obtain them.’

(IB at 43)(citations omitted). However, the passage that the

State refers to in the Strickler opinion clearly related to

postconviction counsel’s attempt to show cause and prejudice

as to why his Brady claim was not raised in his state habeas

proceedings when the State argued he had procedurally

defaulted his claim in federal habeas proceedings. As it

relates to a procedural default, the United States Supreme

Court did not reach the diligence of collateral counsel in

Strickler, 527 U.S. at, 287-288. However, the Supreme Court

made it very clear in Strickler that diligence was not and is

not a factor to be considered under the proper Brady analysis.

Id. at 280. The Court specifically delineated the "three

components of a true Brady violation." They are: 1)"The

evidence at issue must be favorable to the accused;" 2) "that

evidence must have been suppressed by the State, either

willfully or inadvertently;" and 3) "prejudice must have

ensued."

In fact, Strickler, stands for the exact opposite of what

information, then either the exculpatory information was not

suppressed, or the accused was not prejudiced by the State’s

suppression, but by defense counsel’s failure to use the

exculpatory information. However, that is not the situation

here, where the circuit court credited trial counsel’s

testimony that she was not provided the exculpatory evidence,

but would have used it had she possessed it.

80

the State has asserted. Trial counsel’s diligence is simply

not an element of "a true Brady violation". The Court

repeated in Strickler that "the duty to disclose [] evidence

is applicable even though there has been no request by the

accused, and [] the duty encompasses impeachment evidence as

well as exculpatory evidence." Id. at 280. The Court made

clear that the burden rests with prosecutors who have "a duty

to learn of any favorable evidence known to the others acting

on the government’s behalf . . . including the police. Id. at

281.

This Court has recognized that in light of Strickler the

Brady analysis does not include a diligence prong. Occhicone

v. State, 768 So. 2d 1037, 1042 (Fla. 2000)(noting that "‘due

diligence’ requirement is absent from Supreme Court’s most

State, ___ So.2d ___ (Fla. July 11, 2002); Rogers v. State,

782 So.2d 373 (Fla. 2001). The State’s argument that this

Court apply a due diligence requirement to the Brady analysis

premised alternatively upon either trial counsel’s deficient

performance or the State’s suppression of favorable evidence

(PC-R. 808).

assertion that the defense did not establish that Katrina

81

was rejected by the United State Supreme Court in Strickler.

Moreover, even if trial counsel’s exercise of diligence

was an element of a "true Brady claim," the absence of

diligence would constitute deficient performance, as this

Court explained in State v. Gunsby, 670 So.2d at 924 ("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").

However, the circuit court found that Ms. Morgan’s performance

was not deficient because the State "inadvertently suppressed"

the exculpatory evidence. If the State were to convince this

Court that there is no competent evidence supporting the

circuit court’s determination, then this Court would have to

reject the circuit court’s finding that counsel’s performance

For example, the State argues that trial counsel had

"Pine’s" name and knew sufficient facts about the rape so she

could "have easily obtained the police report with due

Grant was Katrina Graddy (IB at 39-40). Further, the defense

had no idea the date of the alleged rape, where the crime

occurred, what name Ms. Graddy used, or the identity of

"Pine". Yet, the State had possession of all of the

information and did not disclose it.

82

determinations were contrary to the State’s contention. The

State’s contention regarding diligence should be rejected.

83

As to the finally component of "a true Brady violation,"

the State ignores the dictates of Kyles v. Whitley, 514 U.S.

419 (1995). Kyles teaches: "The fourth and final aspect of

Bagley materiality to be stressed here is its definition in

each of the eight documents the circuit court refers to in

it’s order separately and never considers the totally

different picture that would have been presented to Mr.

Holton’s jury had the evidence not been suppressed.

Even taking the suppressed items individually, the State

misrepresents the relevance and significance of the documents.

First, the State suggests that the June 13, 1986, police

report which indicates a "Katrina Grant of 1035 Joed Court"

complained that a man named David Pearson anally raped her at

a motel in Tampa, was not material because: 1) Mr. Holton did

not establish that Katrina Grant was in fact Katrina Graddy;

2) the complainant signed a waiver of prosecution; and 3) the

report was inadmissible as reverse Williams rule evidence (IB

at 39-40).

The State’s assertion that Mr. Holton failed to establish

84

that the complainant on June 13, 1986, was not Katrina Graddy

is either premised upon a failure to read the record or an

offensive effort to obfuscate. Besides the obvious

Ms. Graddy’s death certificate; i.e., the same first name,

similar last names, the same address, and similar birth dates,

only off by one year, (Def. Exs. 13 & 22), David Pearson

admitted that Katrina Graddy, the same Katrina Graddy who was

the murdered on June 23, 1986, complained to the police that

Pearson raped her at the Hancock Motel, in Tampa, on June 13,

1986 (Supp. PC-R. 164-8). And the State in its closing

argument did not contest the issue.

At the time of Mr. Holton’s trial, the defense knew that

Ms. Graddy told several family members and friends that a man

named "Pine" raped her shortly before her murder (T. 85-6,

285, Def. Exs. 19, 20, 21, 31 & 32). The defense also knew

that Ms. Graddy likely used a false name when she made her

complaint. (Def. Ex. 20, p.6). Thus, not only did Pearson

the information trial counsel obtained is entirely consistent

with the police report. Indeed, it was "established that the

victim of the alleged assault, Katrina Grant, was in fact the

murder victim, Katrina Graddy." (IB at 39).

accused David Pearson of rape, such an accusation to the

police could certainly produce a homicidal rage, particularly

since David Pearson in the course of his interview had to

admit to the police that he was a drug dealer. In fact, the

State argued at Mr. Holton’s trial that the possible motive

for the murder was a drug deal gone bad.

85

The State next argued that, "the victim signed a waiver

of prosecution. The victim was a known prostitute and David

"Pine" Pearson told law enforcement officers that he had

This argument assumes that Ms. Graddy was not anally raped by

Pearson on June 13, 1986, and if she was not raped then the

report is not relevant. However, Ms. Graddy’s waiver of

prosecution does not diminish the significance of the

complaint. The waiver clearly indicates that the complainant

can "request an arrest warrant at a later dater." (Def. Ex.

13). Katrina Graddy could have requested that Pearson be

arrested on the day after the rape or the next day or on any

other day, including the day she was murdered.

Additionally, unlike Appellant, trial counsel, Mr. Holton

and his current postconviction counsel neither believe that a

"known prostitute" cannot be raped nor believe that Pearson

when faced with the possibility of replacing Mr. Holton on

death row told the truth when he was questioned by the police.

Whether Ms. Graddy was anally raped on June 13, 1986, or

86

whether she lied to the police makes no difference in the

Brady analysis. Ms. Graddy reported Pearson to the police for

a serious, violent offense. Pearson admitted he supplied Ms.

Graddy with crack and had sex with Ms. Graddy. Therefore, Ms.

Graddy’s complaint caused Pearson to be a suspect in at least

four different crimes – sexual battery, delivery of a

controlled substance, possession of a controlled substance and

solicitation. Pearson admitted in his sworn statement that he

slapped Ms. Graddy, thus, even if he did not anally rape her,

a violent argument occurred which could have subjected him to

criminal prosecution. It further reflects on his emotional

feelings regarding Katrina that he resorted to physical

violence against her.

discuss the rape with her family and friends. She was angry,

and she went to see Donald Lamar Smith, who testified that

Pearson and Ms. Graddy exchanged angry threats when they saw

each other the day after the rape (T. 243). Berndoris Smith

described how Ms. Graddy wanted to retaliate against Pearson –

even asking Donald Smith to beat-up Pearson (T. 151-2).

June 13, 1986 (Def. Ex 14). The charge was obstruction by

disguising identity (Def. Ex. 14). Pearson repeatedly lied to

assault would not be admissible as reverse Williams rule

evidence (IB at 40). The State’s argument misses the point.

The significance of the alleged sexual battery is not that it

proves that Pearson committed the crime because the two crimes

were similar. Rather, the allegations of the rape provide a

powerful motive for Pearson to murder Katrina Graddy,

independent of the similarity or dissimilarity of the crimes.

Because of Ms. Graddy’s allegations, Pearson was arrested.

The police investigated and learned that he committed a number

of crimes at the Hancock Motel, including that he was a drug

dealer. The fact that Pearson had a motive to murder the

victim was relevant and admissible at Mr. Holton’s capital

trial. The cases cited by the State all concerned the use of

similar-fact evidence to prove "identity" of the perpetrator.

Those cases do not control in these circumstances.

87

the police about his identity (Def. Ex. 14). The only reason

Pearson was being interviewed by the police was because Ms.

Graddy had complained about the sexual battery (Def. Ex. 13).

This would demonstrate that Pearson was not too happy about

At Mr. Holton’s trial, Ms. Morgan argued:

Mr. Episcopo told you in the beginning he could not

show a motive, that motive was not a factor. Well,

it is not a necessary element of any of these

offenses but look at what was done to this girl and

(R. 702)(emphasis added). Certainly the information contained

compelling reason for the defense to argue that Pearson

battery and murder. While it makes no difference in regard to

admissibility on motive grounds, defense counsel testified at

the evidentiary hearing that it was significant that both

crimes involved anal penetration and choking Ms. Graddy (T.

291-2). Certainly, defense counsel would have argued that the

murder reflected Pearson’s anger toward the victim and desire

to humiliate and retaliate against her for reporting the

alleged rape to the police.

88

Holton’s motive arose from a sex for drugs transaction had

gone bad:

He doesn’t like this woman. He hates this

woman. Why does he hate this woman? Because you

can see what he did with this bottle. That’s the

charge he has been charged with. That’s right.

There is no evidence of semen. But that was because

our bigshot over here couldn’t do it, and he killed

her because he couldn’t, because she wouldn’t help

him, because she wouldn’t satisfy him. Maybe she

hurt him with that free hand. Maybe she grabbed him

somewhere and squeezed him. Maybe he lost his

temper.

(R. 719). The State’s argument is remarkably more consistent

with Pearson being the murderer, than Rudolph Holton, given

the undisclosed evidence.

Further, the information about Pearson was also relevant

and admissible as reflecting upon the adequacy of the police

investigation. In Kyles v. Whitley, the United States Supreme

Court recognized that evidence that impeached the police

investigation could establish a Brady violation:

the night of Ms. Graddy murder she asked someone on the street

if they had seen Ms. Graddy and she was told that Ms. Graddy

was seen with "Pine" walking through the park (Def. Ex. 33, p.

29). Still, the police made no attempt to ascertain "Pine’s"

true identity in order to interview him.

89

Damage to the prosecution’s case would not have

been confined to evidence of the eyewitnesses, for

Beanie’s various statements would have raised

opportunities to attack not only the probative value

of crucial physical evidence and the circumstances

in which it was found, but the thoroughness and even

the good faith of the investigation, as well. . . .

[the evidence’s] disclosure would have revealed a

remarkably uncritical attitude on the part of the

police.

* * *

Even if Kyles’s lawyer had followed the more

conservative course of leaving Beanie off the stand,

though, the defense could have examined the police

to good effect on their knowledge of Beanie’s

statements and so have attacked the reliability of

the investigation in failing even to consider

Beanie’s possible guilt and in tolerating (if not

countenancing) serious possibilities that

incriminating evidence had been planted.

514 U.S. 419, 445-6. (citations omitted).

Here, the June 13, 1986, police reports presented

valuable evidence to undermine the police investigation of Ms.

Graddy’s murder. Even when the prosecution was aware that Ms.

Graddy complained that she had been raped by "Pine" to her

family and friends, (Def. Exs. 20 & 21), it appears the police

did not consider that the alleged rape may be connected to the

If Ms. Woods’ testimony was reliable, "Pine" may have

been one of the last people to see Ms. Graddy alive.

Therefore, whether he was a suspect or a potential witness, it

is very curious that the police never attempted to speak with

him.

police reports. Ms. Woods’ also linked Pearson, who she knew

as "Pine" to the black bag, Schenck and to Ms. Graddy on the

night of the crime (See Def. Ex. 33).

90

Ms. Morgan testified at the evidentiary hearing that had

she known "Pine" was Pearson she would have researched his

criminal history and obtained his photo (T. 306). At the

evidentiary hearing, trial counsel testified that she could

have linked Pearson to the black bag and to Schenck (T. 308).

In fact, after reviewing Pearson’s photo, Schenck testified

that Pearson more resembled the hitchhiker than did Mr. Holton

"Donald Lamar Smith". As Ms. Morgan testified, she would have

spoken to Mr. Smith in order to obtain Pearson’s location (T.

291-2). This would have led counsel to discovering that

As to the "Donald Smith" police reports, the State argues

without any factual basis at all that Donald Smith would not

Birkins and Rudolph Holton had known each other for many years

and were friends. The State told the jury that the crime was

so horrible, Birkins was compelled to come forward despite his

friendship with Mr. Holton (R. 297).

his name when Pearson was questioned about the alleged sexual

battery on June 13, 1986 (T. 243). Donald Smith was also not

only friends with Pearson, but also with the Graddy family (T.

240).

the police, David Pearson had not yet confessed to killing

Katrina to Mr. Smith. That occurred later that summer.

91

have testified at Mr. Holton’s trial because he was Pearson’s

would have testified truthfully to his knowledge of Pearson’s

involvement in the Graddy homicide at Mr. Holton’s trial (T.

credible.

In arguing the circuit court’s finding is not supported

by competent and substantial evidence, the State misrepresents

Mr. Smith’s testimony. Mr. Smith testified that when he was

interviewed by the police at the crime scene he did not reveal

Pearson’s name because several people were standing around and

he did not want to be a snitch (T. 245). However, he

testified that had anyone interviewed him in private he would

have revealed Pearson’s name as the individual who provided

92

Prejudice was caused by the suppression of the two June

true when these reports are considered cumulatively. Had the

reports been disclosed, the jury would have seen Mr. Holton’s

case in a whole new light. This is particularly so given the

fact that the reports would have led to Donald Smith who would

The State also disputes the circuit court’s findings in

regard to the numerous documents impeaching Flemmie Birkins’

testimony. In its brief, the State argues that the jury heard

that Birkins could be given a lengthy sentence and trial

counsel effectively cross examined Birkins, so any prejudice

to Mr. Holton was minimal (IB at 50 & 51).

However, Birkins had testified inconsistently; initially,

he told the jury that he accepted a plea to three years and

his sentencing guidelines called for a sentence of three-anda-

half to four-and-a-half years in prison (R. 308). Birkins

also testified that he did not accept the plea and that he

pled "open" to the charges because "he would not have pled to

all that." (R. 293). Likewise, in his argument at Birkins’

sentencing hearing, ASA Episcopo made contradictory statements

about whether Birkins accepted a plea to three years or not.

telling the truth and that Mr. Holton never confessed to him.

93

(Def. Ex. 10, p. 4-11).

Throughout his closing argument the prosecutor told the

jury that Birkins’ motivation in coming forward was not based

on any benefit he was receiving for his testimony:

Maybe he could have come in and not been such a

honest witness now, but he’s still telling the truth

because, ladies and gentlemen, this is a horrible

crime that even a fellow black inmate will not

tolerate.

prosecutor argued:

... He has got eight convictions but under the

sentencing guidelines, he scores out to three-and-ahalf

to four-and-a half years, and those are scored

in, and he’s got two more waiting.

So for his ten crimes, he gets three-and-a-half

to four-and-a-half. That is how horrible a criminal

he is.

(R. 707).

Birkins’ sentencing hearing, presentence investigation

report and guidelines score sheet indicate that, in reality,

Birkins was a "horrible criminal", who was facing nine to

twelve years on a grand theft charge. ASA Episcopo conceded

in 2001 that in reviewing Birkins’ record he saw the error in

the calculation of Birkins’ sentencing guidelines:

The true score sheet is nine to twelve and I guess

if you look at the prior record and the PSI you

"speculation". (IB at 50). However, even the prosecutor

acknowledges that the error was apparent when looking at

Birkins’ criminal history. (Def. Ex. 10).

94

would see it’s nine to twelve.

(Def. Ex. 10).

Like the prosecutor, trial counsel testified that had she

received any document detailing Birkins’ criminal history she

would have realized that he was facing a much lengthier prison

have heard that Birkins’ was not coming forward because he

felt a moral obligation to help the police, but rather that he

was greatly reducing his potential sentence. Birkins’ was the

State’s star witness. ASA Episcopo told Mr. Holton’s jury and

Birkins’ sentencing judge that a conviction could not have

been obtained without Birkins (R. 705-7; Def. Ex. 10). See

1982)(recognizing "a particular need for full crossexamination

of the State’s star witness"). Birkins wanted to

be released from prison. He fabricated a story about Mr.

Holton confessing, expecting that he would benefit greatly,

and he did. Rather than be sentenced between nine and twelve

years, Mr. Holton’s prosecutor ensured that Birkins received a

short period of incarceration at the jail (he was released in

95

January, 1987, almost one month after Mr. Holton was sentenced

to death), followed by a year of community control and

probation. Yet, the jury did not know this. This must

undermine confidence in the reliability of the jury’s

assessment, particularly Mr. Birkins has now testified that he

testimony was false; Mr. Holton never confessed to him.

In reviewing the materiality of Mr. Holton’s claim, this

Court must review the net effect of the suppressed evidence

and determine "whether the favorable evidence could reasonably

be taken to put the whole case in such a different light as to

undermine confidence in the verdict." Maharaj v. State, 778

So. 2d 944, 953 (Fla. 2000). Further, "[i]n applying these

elements, the evidence must be considered in the context of

the entire record." Occhicone v. State, 768 So. 2d at 1041.

Without a doubt, had any of the reports been disclosed,

trial counsel would have located and interviewed Donald Smith.

The information Donald Smith possessed was incredibly

important evidence. Not only did the reports provided a

compelling motive for Pearson to murder Katrina Graddy, but

Donald Smith and his wife testified that Ms. Graddy was upset

and wanted to retaliate against Pearson (T. 243). She went so

far as to seek out Donald Smith to tell him that Pearson used

96

his name in speaking to the police (T. 240, 151-2). Mr. Smith

saw that Ms. Graddy had bruising on her neck and she told Mr.

Smith that "Pine" choked her and forced her to have sex (T.

241). Ms. Graddy explained that Pine gave her some [crack]

rocks, but she would not have sex with him, so Pine raped her

(T. 242).

The day after the alleged rape, Mr. Smith witnessed an

argument between Graddy and Pearson (T. 242). Donald Smith

testified in 2001:

Q: Okay, you told him that why did he use your

name when he raped that girl . . .?

A: Yes, but before I got finished she went

hollering at him.

Q: What did she say to Mr. Pearson?

A: She’s going to get his ass if that’s, that’s

what she’s going to do, you know, you smoked my

s**t.

Q: Okay, and did Pine also tell her that I’m

going to kill your ass?

A: Yes.

Q: For calling the police on me?

A: Yes.

(T. 243).

Donald Smith also possessed crucial information about the

day the police found Ms. Graddy’s body. On his way to the

abandoned house on Scott Street, to see what was happening,

attempted to explain that Mr. Smith could have overheard

details about the crime while he stood around the scene (T.

368). Yet at trial, the State presented testimony through

Tampa Police detectives that information was not released to

public about the crime. Thus, the State argued that Birkins’

knowledge of the crime could only have come from Mr. Holton

(T. 447).

confession. However, during his cross examination of Mr.

Smith, ASA Chalu characterized Pearson’s comment as a

confession, and Mr. Smith agreed (T. 254). The proper time to

have disputed whether Pearson confessed to Mr. Smith was in

the circuit court.

97

Mr. Smith met Pearson "walking fast towards" him (T. 244).

Pearson told him that Katrina was found in the house strangled

(T. 244). Mr. Smith proceeded to walk to the crime scene and

when he got near the abandoned house he said: "they found

Katrina strangled" (T. 244). As Ms. Morgan testified at the

evidentiary hearing, Pearson’s intimate knowledge of the crime

would have been significant in arguing that Pearson must have

A few weeks after Ms. Graddy’s murder, Pearson was at Mr.

Smith’s house getting a hair cut (T. 246). Mr. Smith and

Pearson explained that he had murdered Ms. Graddy (T. 246).

Mr. Smith informed his future wife, Berndoris, and his friend

Smith corroborated Donald Smith’s testimony. After Ms.

Graddy’s murder, Donald Smith told the witness that, "Pine had

98

told [Donald] that he had did it" (T. 196). George Smith

confronted Pearson about the confession; Pearson did not deny

it, but walked away (T. 197).

In addition to Donald Smith, Berndoris Smith and George

Smith’s testimony, as stated previously, the police reports

would have provided the link between Pearson and the black

bag. Trial counsel also could have illustrated the weakness

in the investigation of Mr. Holton based on all of the

evidence pointing to Pearson.

Contrary to the State’s position, the suppression of the

extreme prejudice to Mr. Holton. Had the jury heard the truth

about Pearson and his relationship to Ms. Graddy there is no

doubt that the jury would have acquitted Mr. Holton. But,

this non-disclosures must still be evaluated cumulatively with

the non-disclosures regarding Flemmie Birkins.

There is no doubt that Birkins, contrary to his trial

testimony, sought consideration for his testimony. Also, due

to non-disclosure, the jury also never heard that Birkins’ had

a lengthy relationship with the Tampa Police Department.

Whenever Birkins faced a criminal charge or was incarcerated

he requested assistance from the State in exchange for

information about other crimes (Def. Ex. 35 & 36). Birkins’

99

relationship to the police and the State was important,

because the State told the jury that Birkins did not ask for

anything in exchange for his testimony. While this may be

true, had the jury known that Birkins was no stranger to the

"snitch game" trial counsel could have shown that Birkins and

the police knew what to expect from each other.

ASA Episcopo admitted at the evidentiary hearing that it

was "standard operating procedure" for him not to agree to a

deal with a snitch pretrial so that the deal did not taint the

witness’ testimony (T. 62-3). However, because Birkins’ knew

the system and the police knew Birkins’ it was unnecessary to

enter into an agreement before the trial. Birkins’ knew that

he would receive consideration (T. 125).

never told him anything about the Graddy homicide or any other

crime (T. 122-3). The circuit court did not disregard

Birkins’ testimony in 2001 as incredible. The circuit court

had to have relied upon it to conclude that the State

suppressed exculpatory information regarding Flemmie Birkins.

In fact, the evidence that was in possession of the

police clearly demonstrates that Birkins lied about Mr. Holton

confessing to him. At trial, Birkins testified that he and

100

Mr. Holton had two conversations on June 26, 1986. The first

conversation was of no consequence, however, shortly

thereafter, Mr. Holton saw Birkins and confessed to killing

Ms. Graddy (T. 289, 295). What the jury did not hear was that

Birkins and Mr. Holton could not have had the second

conversation wherein Mr. Holton allegedly confessed. On June

26, 1986, Detectives Durkin and Noblitt "checked the defendant

out of Central booking and transported him to the Police

Dept." At approximately, 5:00 p.m., Mr. Holton was being

checked out of the jail and transported. This was at the same

time Birkins claimed that Mr. Holton was confessing to him

(Def. Ex. 34).

In State v. Huggins, 788 So.2d 238, 244 (Fla. 2001), this

Court analyzed a Brady claim and stated:

The State presented a purely circumstantial case

against Huggins. As Angel was its key prosecutorial

witness who established crucial details in the

State’s theory of the case, her credibility was

critical.

Likewise, Birkins was crucial to the State in obtaining a

conviction against Mr. Holton. The prosecutor recognized that

Birkins’ was critical in obtaining a conviction. There is no

doubt that the documents reflecting the true benefit Birkins

received and the proof that Birkins lied at Mr. Holton’s

trial, "shake[] the confidence in the verdict." State v.

101

Huggins, 788 So. 2d at 243-4.

The United States Supreme Court has cautioned that in

showing materiality, petitioners:

need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed

evidence, there would not have been enough left to

convict. The possibility of an acquittal on a

criminal charge does not imply an insufficient

evidentiary basis to convict. One does not show a

Brady violation by demonstrating that some

inculpatory evidence should have been excluded, but

by showing 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.

Kyles v. Whitley 514 U.S. 419, 435-6 (1995). Mr. Holton has

proved that the State committed several Brady violations at

his capital trial. The undisclosed evidence places his case

in a whole new light. Mr. Holton requests that this Court

affirm the circuit court’s order vacating Mr. Holton’s

convictions.

The State argues that the circuit court erred in finding

that the newly discovered evidence based upon the results of

mitochondrial DNA (mt DNA) testing, would not probably produce

an acquittal upon retrial (IB at 64). Initially, the State

refers to the circuit court’s order in which Judge Perry

102

stated:

As to claim III-f, Defendant fails to meet the

standard of newly discovered evidence and requests

leave to amend pending further investigation.

However, this Court held an evidentiary hearing on

this claim.

(PC-R. 813). The State argues that in it’s order the court

reversed itself in regard to the newly discovered evidence (IB

at 62). However, the more probable explanation is that the

introductory sentence in that paragraph which is quoted above

contains a typographical error. Clearly, that sentence does

not represent the finding of the circuit court. Obviously,

the circuit court was convinced at the evidentiary hearing

that relief was warranted upon this claim.

In the Initial Brief, the State claims for the first time

that Mr. Holton’s claim was untimely and therefore barred. (IB

at 63). The State argues that Mr. Holton could have raised

his claim before he requested mt DNA testing and before he

amended his Rule 3.850 motion (IB at 63). However, this

diligence argument was not raised in the circuit court, and

therefore was waived and not properly preserved for appeal.

DCA 1974)("[A]n appellate court must confine itself to a

consideration of only those matters in question that were

circuit court resulted in a mt DNA profile of hairs found in

the black shaving kit that matched neither Mr. Holton nor Ms.

Graddy. Therefore, a third, unknown source has been injected

into the case (Def. Ex. 41).

in 2001, also serves to render the argument moot. Clearly,

under the DNA statute Mr. Holton would currently be entitled

to test the evidence in his case, plead any favorable results

103

before the lower court").

During Mr. Holton’s postconviction proceedings, the State

objected to Mr. Holton’s request to test evidence using the

advanced technology of DNA methods. But, the objection was

not based on a diligence argument. Rather, the State argued

that there was no authority for DNA testing in postconviction

and that allowing Mr. Holton to test evidence would open the

"flood gates for [testing] motions" (Supp. PC-R. 560, 562).

Subsequently, both the Court and the State requested further

DNA testing (T. 385-6; 396). The Court sua sponte ordered

additional mt DNA testing at the closing of evidence (T. 657-

8). The State requested further DNA testing in June, 2001,

It is inconsistent for the State to take the position

that no authority exists for Mr. Holton to test evidence, and

then after the results were favorable for Mr. Holton, argue

and would not be subject to default based on a diligence

argument.

1992 and cites Bolin (IB at 63). What the State fails to

inform this Court is that mt DNA testing was inadmissible in

court until very recently. (In fact, Bolin may have been the

first case in which mt DNA results were admitted, and they

were only admissible at his most recent trial). Dr. Melton

testified that in 2001, only five labs in the United States

conduct mt DNA testing and only three states have found

results admissible (T. 11-2, 26).

104

Because the State failed to argue that Mr. Holton was not

diligent in the circuit court it has defaulted this argument

on appeal.

Further, the State attempts to mislead this Court by

citing to Zeigler v. State, 654 So. 2d 1162 (Fla. 1995), to

suggest that Zeigler supports the State’s position. In

Zeigler, this Court found that Zeigler’s request for DNA

testing was procedurally barred because Zeigler was a

successive postconviction litigant:

[H]e should have raised the claim in his pending

motion for postconviction relief in order to avoid

the procedural bar of successive motions. Instead,

he waited in excess of two years before first

raising the claim in 1994.

Id. at 1164. Unlike Mr. Holton, Mr. Zeigler raised his

testing claim in a successive postconviction motions,

105

In addition to his diligence argument, the State also

argues that Mr. Holton’s mt DNA results do not meet the

standard for relief under newly discovered evidence. See Jones

v. State, 591 So. 2d 911 (Fla. 1991). The State contends that

the testimony the jury heard at trial regarding the hair

evidence was not incorrect (IB at 64). While Mr. Holton’s

jury may have heard accurate testimony about the

characteristics of the hairs found on the victim’s mouth, they

heard incorrect testimony and false argument from the

prosecutor about who was the source of the hairs. Mr. Holton,

through testing, proved that the hairs excluded him as the

source, while the jury heard that Mr. Holton could not be

excluded as the source. What the jury heard was factually

incorrect, inaccurate and misleading.

Further, at trial, the prosecutor capitalized on FBI

Agent Quill’s testimony. The prosecutor argued in no

uncertain terms that the hairs linked Mr. Holton to the crime:

No, we can’t say these are the hairs of the

defendant. We never purported to say they were the

hairs of the defendant. We wanted to show that she

came from either here or here or back here. That is

what Quill said.

106

(R. 707-8)(emphasis added). The State now contends that this

closing argument was not unsupported or misleading (IB at

65). However, in the Tomkins warrant litigation, the same

prosecuting authority, in an attempt, to convince the circuit

court to reject DNA testing filed a motion which stated:

Tompkins reliance on the Hillsborough County

case of State v. Holton, is unavailing. The issue

in Holton was that the prosecutor had argued to the

jury that the hair in question could not have been

from the victim. The DNA testing subsequently

excluded Holton as the possible source and noted

that it could not exclude the possibility that the

questioned hairs came from the victim or a

maternally related individual. That situation is

(Def. Ex. 4). In Tomkins, the State argued that the

prosecutor in Mr. Holton’s case misrepresented the evidence,

while in Tompkins the prosecutor did not. Therefore, the

State’s position is refuted by its position in Tompkins.

Again, contrary to the State’s argument, the prosecutor’s

closing argument was incorrect because he told the jury that

the hair could not be the victim’s and could be Mr. Holton’s,

beyond a reasonable doubt (R. 707-8). We now know that the

test results prove that the hair was not Mr. Holton’s and was

consistent with the victim’s hair (T. 29, Def. Ex. 3).

107

The State asserts that the hairs were not a critical

piece of evidence in the State’s case against Mr. Holton. The

hair evidence was the only piece of physical evidence that

linked Mr. Holton to Ms. Graddy or the crime scene on the

night of the murder. The State believed that the hair

evidence was critical enough to arrange for FBI Agent Quill to

travel to Tampa so that he could testify to the results of his

hair examination. The State also believed that the hair

evidence was critical enough to tell the jury that it provided

evidence beyond a reasonable doubt about the crime (R. 707-8).

By the State’s own admission, the evidence against Mr. Holton

was circumstantial and trial counsel impeached all of the lay

witnesses who testified against Mr. Holton – Birkins,

Newsome, Nelson and Schenck.

The circuit court found that the mt DNA results would

probably produce an acquittal on retrial. The evidence

supports the court’s finding. "As long as the trial court’s

findings are supported by competent substantial evidence,

‘this Court will not substitute its judgment for that of the

trial court on questions of fact,. . . ". Blanco v. State, 702

So. 2d 1250, 1252 (Fla. 1997). Thus, Mr. Holton respectfully

requests that this Court affirm the circuit court’s order

vacating Mr. Holton’s convictions and granting a new trial.

example, "Appellee used cocaine and had sought drugs from the

victim prior to her death." (IB at 68). Mr. Holton did not

know the victim and never asked the victim for drugs. Rather,

Ms. Woods testified that when passing by, Mr. Holton once

asked if she and Ms. Graddy knew where he could buy drugs (R.

588-90). Ms. Woods made clear that she had never seen Mr.

Holton with the victim (Def. Ex. 33). Also, the victim was

not found in the "front of the house", as the State avers (IB

at 69). The significance of the front room of the house was

that the police found a cigarette pack and a syringe in that

room, however, Ms. Graddy’s body was not found in that room.

108

Essentially, the State repeats its arguments in Issues I

and II of his Initial Brief and says that Mr. Holton’s claims

of error, which the circuit court found entitled him to

relief, are meritless (IB at 67-8). The State suggests that

when the evidence as it existed at trial is viewed as a whole

While Mr. Holton may not agree that the evidence

presented at trial should have produced a verdict of guilty,

he does not quarrel with the fact that it lead to his

convictions. However, the State ignores the evidence

presented at the evidentiary hearing. At his evidentiary

hearing, Mr. Holton undermined virtually every piece of

109

evidence that the State presented to his jury in 1986 to

secure his conviction and death sentence.

Flemmie Birkins, the State’s star witness at trial

admitted he lied about Mr. Holton’s alleged confession and

about his expectations for leniency due to his testimony. The

circuit court accepted Birkins’ 2001 testimony. Documents

introduced at the hearing, including the transcript of

Birkins’s sentencing hearing, and the police report that

indicated that Mr. Holton was not in the jail at the time

Birkins said he confessed, support the court’s finding.

Likewise, Newsome admitted he lied at Mr. Holton’s trial.

While the judge did not find Newsome credible, that fact,

provides valuable impeachment to Newsome’s trial testimony.

Further, trial counsel admitted that reports about Newsome’s

criminal activities prior to the trial existed and she had no

reason for why did not use them to impeach Newsome. Newsome’s

trial testimony should be viewed as incredible, as well.

The consistent statements made to Mr. Holton’s

investigators by Willie Dan Simmons completely refuted the

testimony of Nelson at the trial.

Schenck testified that had he viewed a photo of Pearson

in 1986, he would have chosen Pearson as the individual

resembling the hitchhiker and not Mr. Holton.

110

The evidence regarding the mt DNA result of the hairs

found on the victim’s mouth, the only physical evidence

connecting Mr. Holton to Ms. Graddy, and the hairs found in

the black shaving bag conclusively exclude Mr. Holton as being

the source of the hairs; the hairs in the black bag prove that

someone other than Mr. Holton or the victim contributed the

hairs.

The testimony about the scratches on Mr. Holton’s chest

was also refuted by Mr. Holton’s medical expert.

Additionally, Mr. Holton had an alibi for the night of

the murder. Ms. Woods established a time line which

corroborated Mr. Holton about his whereabouts on the night of

the crime. And, as Mr. Holton has proved, the evidence

implicating Pearson in the crime is overwhelming. Pearson had

a motive to harm Ms. Graddy, he threatened her and he

ultimately confessed to her murder. In State v. Gunsby,

this Court stated that in reviewing errors that occurred at a

capital defendant’s trial:

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 trial has been undermined and

that a reasonable probability exists of a different

outcome.

670 So. 2d 920, 924 (Fla. 1996). In reviewing the errors

111

found by the circuit court, both individually and

cumulatively, Mr. Holton is entitled to relief.

112

The lower court properly determined that Mr. Holton is

entitled to a new trial due to the State’s suppression of

material, exculpatory evidence. For all the foregoing

reasons, the judgment of the court below should be affirmed.

Respectfully submitted,

MICHAEL P. REITER

CAPITAL COLLATERAL COUNSEL -

NORTHERN REGION

________________________

MARTIN J. McCLAIN

SPECIAL ASSISTANT CCC-NR

FLORIDA BAR NO. 754773

________________________

LINDA McDERMOTT

ASSISTANT CCC-NR

FLORIDA BAR NO. 0102857

1533 S. MONROE STREET

TALLAHASSEE, FL 32301

(850) 488-7200

COUNSEL FOR APPELLEE

113

I HEREBY CERTIFY that a true and correct copy of the

foregoing Answer Brief has been furnished by U.S. Mail,

postage prepaid, to Stephen D. Ake, Assistant Attorney

General, Westwood Center, 2002 North Lois Ave., Suite 700,

________________________

LINDA McDERMOTT

ASSISTANT CCC-NR

COUNSEL FOR APPELLEE

This is to certify that the Answer Brief of Appellee has

been reproduced in a 12 point Courier type, a font that is not

proportionately spaced.

________________________

LINDA McDERMOTT

ASSISTANT CCC-NR

COUNSEL FOR APPELLEE