IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA,

Appellant,

v. Case No. SC01-2671

Lower Tribunal No. 86-8931

RUDOLPH HOLTON,

Appellee.

___________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE THIRTEENTH JUDICIAL CIRCUIT,

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

REPLY BRIEF OF APPELLANT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

STEPHEN D. AKE

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 14087

Westwood Center

2002 North Lois Avenue, Suite 700

Tampa, Florida 33607

Telephone: (813) 801-0600

Facsimile: (813) 356-1292

2

COUNSEL FOR APPELLANT

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TABLE OF CONTENTS

PAGE

NO.:

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . ii

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . 1

THE TRIAL JUDGE ERRED IN FINDING THAT THE

STATE VIOLATED BRADY V. MARYLAND, 373 U.S.

83 (1963) BY FAILING TO DISCLOSE A NUMBER OF

ITEMS TO DEFENSE COUNSEL PRIOR TO APPELLEE’S

TRIAL.

ISSUE II . . . . . . . . . . . . . . . . . . . . . . 12

THE TRIAL JUDGE ERRED IN GRANTING APPELLEE

RELIEF ON HIS CLAIM OF NEWLY DISCOVERED

EVIDENCE.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . 13

THE TRIAL JUDGE ERRED IN CONCLUDING THAT THE

CUMULATIVE EFFECT OF THE ALLEGED ERRORS

DEPRIVED APPELLEE OF A FAIR TRIAL.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF FONT COMPLIANCE . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . 1,2,6

Crump v. State,

622 So. 2d 963 (Fla. 1993) . . . . . . . . . . . . . . . . 3

Johnson v. State,

769 So. 2d 990 (Fla. 2000) . . . . . . . . . . . . . . . . 9

Rivera v. State,

561 So. 2d 536 (Fla. 1990) . . . . . . . . . . . . . . . . 3

Rogers v. State,

782 So. 2d 373 (Fla. 2001) . . . . . . . . . . . . . . . . 1

State v. Savino,

567 So. 2d 892 (Fla. 1990) . . . . . . . . . . . . . . . . 3

Way v. State,

760 So. 2d 903 (Fla. 2000) . . . . . . . . . . . . . . . . 1

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ARGUMENT

ISSUE I

THE TRIAL JUDGE ERRED IN FINDING THAT THE

STATE VIOLATED BRADY V. MARYLAND, 373 U.S.

83 (1963) BY FAILING TO DISCLOSE A NUMBER OF

ITEMS TO DEFENSE COUNSEL PRIOR TO APPELLEE’S

TRIAL.

Contrary to Appellee’s assertions, the State correctly noted

the applicable standard of review in its Initial Brief. See

Initial Brief of Appellant at 37-38. In determining whether the

trial court erred in finding that the State failed to disclose

Brady material, this Court upholds the decision as long as it is

supported by competent, substantial evidence. Way v. State, 760

So. 2d 903, 911 (Fla. 2000). As noted in the State’s brief, the

ultimate question of whether the Brady material is of such a

nature that confidence in the outcome of the trial is undermined

to the extent that there is a reasonable probability that had

the information been disclosed to the defendant, the result of

the proceeding would have been different, is a mixed question of

law and fact. Rogers v. State, 782 So. 2d 373, 377 (Fla. 2001).

In the instant case, the State contends that substantial,

competent evidence does not support the trial court’s finding

that the State failed to disclose some of the disputed items and

also submits that confidence in the outcome of Appellee’s trial

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has not been undermined to the extent that there is a reasonable

probability that had the information been disclosed, the outcome

would have been different.

With regard to the June 13, 1986 police report regarding an

alleged rape of "Katrina Grant" by David Pearson, aka, Pine, the

State asserts that the trial court erred in finding that this

report was Brady material. In order to constitute a Brady

violation, the evidence must be favorable to the accused because

it is exculpatory or impeaching, that it was suppressed by the

State, and that prejudice ensued. Contrary to Appellee’s

argument, the instant report does not meet this criteria.

Although David Pearson cooperated with the State by giving

a statement to prosecutors after the postconviction evidentiary

hearing in 2001 wherein he admitted to engaging in consensual

sex with Katrina Graddy approximately a week before her murder,

Appellee never established that at the time of his trial he

could have shown that "Katrina Grant" was in fact the murder

victim, Katrina Graddy. Even if Appellee’s trial counsel had

obtained the police report and been able to establish that the

victim of the alleged sexual assault was in fact Katrina Graddy,

it would not have led to any admissible exculpatory or

impeachment evidence.

Appellee argues that the evidence of the alleged rape would

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have been admissible to show David Pearson’s motive to murder

the victim or to show the adequacy of the police investigation.

Contrary to Appellee’s claim, the evidence would not have been

admissible under either of these two theories. See Crump v.

State, 622 So. 2d 963, 969 (Fla. 1993) (stating that the trial

court did not err in prohibiting the defendant from crossexamining

a detective on whether the "police interviewed or

focused on other suspects during the investigation;" the

testimony was not admissible as reverse-Williams rule evidence

because it would not have been admissible had the other suspect

been on trial for the present offense). The issue of using socalled

"reverse-Williams rule evidence" by a defendant to show

that the crime had been committed by another person was not an

established practice at the time of Appellee’s trial in 1986.

See Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990) (stating

that use of reverse-Williams rule evidence was a case of first

impression for this Court). As this Court noted later that year

in State v. Savino, 567 So. 2d 892 (Fla. 1990), the use of such

evidence by a defendant to shift suspicion to another person

must still meet the criteria set forth in Florida Statutes,

section 90.404. In the instant case, the evidence of the

alleged rape by David Pearson does not meet this standard for

admissibility. Accordingly, Appellee could not have been

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prejudiced from the suppression of the police report regarding

the alleged incident.

Even if Appellee was allowed to introduce such evidence,

there is no reasonable probability that evidence of the

unrelated alleged sexual battery would have produced a different

outcome at Appellee’s murder trial. The victim of the alleged

rape waived prosecution at the scene after David Pearson

informed the investigating officers that it was a crack cocaine

for consensual sex deal and that he was willing to submit to any

kind of test to prove that he did not force sex on the victim.

(SPC:169). There is no question that law enforcement officers

would have arrested David Pearson at the scene, notwithstanding

the victim’s desire to waive prosecution, had they believed the

victim’s story that Mr. Pearson violently raped her.

Appellee argues that it makes no difference in a Brady

analysis whether the victim was telling the truth because her

allegations caused David Pearson to be a suspect in four

different crimes and could have produced a homicidal rage.

Although Pearson was arrested for giving a false name, the law

enforcement officers did not arrest him for sexual battery or

any drug offenses despite his admission that he had just smoked

crack cocaine with the victim. Pearson had no reason to

retaliate against the victim based on her allegations because he

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had already successfully established his innocence to the

investigating officers. Had the jury heard the evidence

surrounding the alleged rape, it would not have changed the

outcome of Appellee’s trial in any way. The jury would have

known that there was no rape and the victim’s allegations would

not have provided Pearson with a motive to retaliate against her

by committing murder.

Appellee further alleges that the report of the alleged rape

was significant because it would have allowed defense counsel to

locate Donald Lamar Smith, the name David Pearson had used to

officers resulting in his arrest for obstruction by disguise.

According to Donald Smith’s testimony at the evidentiary

hearing, he saw the fire and smoke at the house on Scott Street

and ran over there and saw David Pearson walking fast from the

scene of the murder. (PCT:244). Smith testified that Pearson

told him that Katrina had been strangled. Donald Smith then

walked up to the house and spoke with Officer Lawless and asked

him "Who choked Anita? What happened, who got choked?" Donald

Smith also claimed that Pearson confessed to killing Ms. Graddy.

The State submits that Donald Smith’s testimony was not

that "the circuit court accepted Donald Smith’s testimony as

credible." Answer Brief of Appellee at 81. The court’s order,

however, never discusses this witness’ testimony or his

credibility.

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he ran to the scene of the house when he saw the fire and, after

briefly speaking with David Pearson, he went to the scene and

spoke with Officer Lawless. Officer Lawless’ report indicates

that he arrived on the scene at 6:45 a.m. and the fire had just

been extinguished. This comports with the trial testimony from

firefighters indicating that they arrived at the scene at 6:33

a.m. and quickly extinguished the fire. (DAR:204-21).

According to Officer Lawless’ report, however, Donald Smith did

not speak to him until approximately 11:30 a.m., almost five

hours after the fire had been extinguished. This clearly

contradicts the testimony given by Donald Smith at the

evidentiary hearing.

Furthermore, Donald Smith would not have "snitched" on his

best friend by testifying that Pearson raped Katrina Graddy and

subsequently confessed to killing her. Donald Smith had every

opportunity to inform the authorities at the time of the alleged

events surrounding the murder of Katrina Graddy, but, by his own

admission at the evidentiary hearing, he did not want to be

labeled a snitch. Additionally, any statements Donald Smith

hearing that he had provided defense counsel with a copy of

Birkins’ PSI, but defense counsel testified that she did not

have it. As to Birkins’ pro se motion for probation and the

transcript of his sentencing hearing, the State submits that the

court erred in finding that these items were Brady material

because they were not suppressed by the State.

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made to others about the alleged rape or confession would not

have been admissible at trial because they would constitute

inadmissible hearsay. Thus, contrary to Appellee’s assertion,

he was not prejudiced by the alleged failure of the State to

disclose Officer Lawless’ report.

As to the Flemmie Birkins’ documents, Appellee does not

address the fact that a number of these documents were not

erred in finding that these materials constituted Brady

material. Appellee contends that the various Birkins’

documents were significant because they would have allowed the

jury to realize that Birkins was a "horrible criminal" that was

actually facing a lengthier prison sentence than the 3½ to 4½

year guideline range disclosed at Appellee’s trial. While

Appellee’s jury was not aware that Birkins actually faced a

scoresheet range of 9 to 12 years, the State submits that this

slight scoresheet discrepancy was not material and would not

have changed the outcome of the proceeding. Birkins pled

open to his pending charges prior to Appellee’s trial and

anything in exchange for his testimony and had not even informed

his own trial attorney that he was cooperating with the State.

(Def. Ex. 10 at 6). Contrary to Appellee’s statement in his

brief, the prosecutor did not give "contradictory statements

about whether Birkins accepted a plea to three years or not."

Answer Brief of Appellee at 83. The prosecutor clearly noted

that from the first time he had met Birkins, it was Birkins’

understanding that he would receive a three year sentence

pursuant to his plea. (Def. Ex. 10 at 6).

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expected that he would be sentenced to three years with credit

for time served pursuant to his plea. Appellee’s trial counsel

made sure the jury was aware that Birkins had a substantial

number of felony convictions and faced a lengthy prison

sentence, perhaps even a habitual offender sentence. Despite

this criminal history, Birkins testified at Appellee’s trial

that he expected to be sentenced to three years as part of his

open plea. Even if Appellee’s trial counsel had the information

contained in the various documents, it would not have influenced

the jury’s credibility determination of Birkins.

Contrary to collateral counsel’s assertion that "Mr.

Holton’s prosecutor ensured that Birkins received a short period

of incarceration at the jail," the prosecutor did not ensure any

sentence for Birkins. At his sentencing hearing, the prosecutor

merely noted that Birkins had testified in the Holton case

argued against incarceration in Florida State Prison based on

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safety concerns. Mr. Birkins’ attorney indicated that his

client had just been "jumped" by one of Appellee’s friends and

Birkins had been threatened that if he was incarcerated, they

would "do him in" while he was in prison. (Def. Ex. 10 at 7).

When imposing Birkins’ sentence, the trial judge stated:

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. I cannot justify placing the defendant

on community control. I recognize that he will be

endangered by being sentenced to Florida State Prison.

I think the record should also reflect that if

this Court imposes the three year sentence that I’m at

this time inclined to impose that with the time that

he has served that he will probably be released within

a year.

(Def. Ex. 10 at 10). The judge then asked Birkins if he thought

he would be any safer in county jail rather than prison. When

Birkins indicated that he would be safer in county jail, the

judge placed him on five years probation, the first two of which

were community control with the first year being specified

residence in the Hillsborough County Jail. (Def. Ex. 10 at 10-

11). Clearly, a review of the transcript indicates that the

prosecutor did not try and influence the judge’s ultimate

sentencing decision.

Even if this Court agrees with the postconviction court that

all of the Flemmie Birkins’ documents were suppressed, the lower

court’s determination that Appellee suffered prejudice is

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erroneous. The jury was aware that Birkins was a habitual

felony offender that had numerous friends in law enforcement.

Appellee’s trial counsel argued extensively during her closing

argument that Birkins’ testimony about Appellee’s confession was

false and that Birkins was simply using the system to get a

better sentence. The information contained in the materials

would not have altered trial counsel’s closing argument or the

jury’s ultimate evaluation of Birkins’ testimony.

Although Birkins recanted in 2001 and testified that

Appellee did not confess to murdering Katrina Graddy, the case

law is clear that recanting testimony is "exceedingly

unreliable." Johnson v. State, 769 So. 2d 990, 998 (Fla. 2000)

(citing Bell v. State, 90 So. 2d 704, 705 (Fla. 1956)). Here,

Birkins gave consistent statements at the time of Appellee’s

trial to detectives, to the attorneys in a sworn deposition, and

at trial. Furthermore, Birkins passed a polygraph examination

at the time. Thus, the State submits that his recanted

testimony is unreliable.

Appellee erroneously contends that the circuit court

accepted Birkins’s 2001 testimony as credible. Answer Brief of

Appellee at 89, 97. This contention is not supported by the

trial court’s order. The court never expressed any opinion as

to Birkins’ credibility and contrary to collateral counsel’s

Ms. Moore claimed at the evidentiary hearing that Carrie Nelson

had told her she lied when she implicated Appellee in the

murder. Ms. Moore also claimed that she was with Johnny Newsome

on the night of the victim’s murder and he could not have

possibly observed Appellee at the house with the victim. The

postconviction court found her testimony unpersuasive.

(PCR:812).

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assertion, it is impossible to assume an implicit finding from

the court’s generic conclusion that Appellee suffered prejudice

from the suppression of the evidence. In contrast to the

court’s failure to address Birkins’ credibility, the

postconviction court clearly rejected Johnny Newsome’s recanted

Mr. Newsome had testified under oath at a deposition and at

Appellee’s trial to observing Appellee at the house with the

victim on the night of her murder at about 11:00 p.m. Mr.

Newsome also provided statements to the police regarding his

observations. The postconviction court found all of his prior

statements consistent. (PCR:812). The court’s analysis applies

equally to Flemmie Birkins, except with greater force. In

addition to providing consistent statements to law enforcement

officers and at his deposition and trial (like Mr. Newsome),

Birkins also passed a polygraph examination. Accordingly, this

Court should find that Birkins’ recanted testimony is unreliable

and not give it any weight.

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Even when considering all of the Brady evidence

cumulatively, Appellee’s case has not been cast "in a whole new

light" as claimed by collateral counsel. The jury was

sufficiently aware of the circumstances surrounding Birkins’

pending charges and his motivation for testifying. Although

defense counsel did not present evidence surrounding the alleged

rape of the victim by David Pearson, or of Pearson’s alleged

confession to Donald Smith, this evidence would not have created

a reasonable probability that the outcome would have been

different. Even assuming that any evidence surrounding the

alleged rape would have been admissible, the jury would have

concluded that there was no rape given the circumstances.

Furthermore, as previously discussed, Donald Smith was not a

credible witness and, assuming counsel could have located him

for trial, he would not have snitched on his best friend, David

Pearson. Thus, even considering the evidence cumulatively, the

State submits that there is no reasonable probability that the

outcome would have been different.

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ISSUE II

THE TRIAL JUDGE ERRED IN GRANTING APPELLEE

RELIEF ON HIS CLAIM OF NEWLY DISCOVERED

EVIDENCE.

Appellant relies on the arguments set forth in the Initial

Brief.

14

ISSUE III

THE TRIAL JUDGE ERRED IN CONCLUDING THAT THE

CUMULATIVE EFFECT OF THE ALLEGED ERRORS

DEPRIVED APPELLEE OF A FAIR TRIAL.

Appellant relies on the arguments set forth in the Initial

Brief.

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CONCLUSION

In conclusion, Appellant respectfully requests that this

Honorable Court reverse the trial court’s order granting

Appellee a new trial.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

___________________________________

STEPHEN D. AKE

Assistant Attorney General

Florida Bar No. 14087

Westwood Center

2002 North Lois Avenue, Suite 700

Tampa, Florida 33607-2366

Telephone: (813) 801-0600

Facsimile: (813) 356-1292

COUNSEL FOR APPELLANT

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. mail to Linda McDermott,

Assistant Capital Collateral Counsel, Capital Collateral Counsel

- Northern Region, 1533-B South Monroe Street, Tallahassee,

Florida 32301, on this 27th day of September, 2002.

____________________________________

COUNSEL FOR APPELLANT

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

_________________________________

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COUNSEL FOR APPELLANT