IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT … Michael - 1-28-2003 Final Draft of 3.850...911 Tapes...

IN THE CIRCUIT COURT

SIXTH JUDICIAL CIRCUIT

PINELLAS COUNTY, FLORIDA

CLEARWATER TRIAL DIVISION

_____________________________

CIRCUIT COURT CRIMINAL CASE NO. CRC00-08042CFANO-A

_____________________________

MICHAEL E. BEARD

Defendant-Petitioner,

v.

STATE OF FLORIDA

Respondent.

__________________________________________________________

DEFENDANT BEARD’S MOTION FOR

POST-CONVICTION RELIEF PURSUANT TO

FLORIDA RULE OF CRIMINAL PROCE DURE 3.850

__________________________________________________________

WILLIAM MALLORY KENT

THE LAW OFFICE OF


Florida Bar No. 0260738

24 North Market Street

Suite 300

Jacksonville, Florida 32202

(904)355-1890 Telephone

(904)355-0602 Fax

[email protected]

2

Table of Contents

Pages

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tab le of Citations

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Course of Proceedings and Statement of Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Statement of Pertinent Facts and Incorporated Memorandum of Law . . . . . . . . . . . . . . . . . . . . . 18

Ineffective Assistance of Counsel Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tria l Counsel’s Failure to Disc lose Expert’s Recantation of Opinion . . . . . . . . . . . . . . . . 19

Failure T o Communicate Plea Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sleeping Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Single Offense Improperly Resulted in Mu ltiple Convictions and Resulted in Sentencing

Guideline Scoresheet Er ror . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

911 T apes and F ailure to Conduct Proper Defense Investigation . . . . . . . . . . . . . . . . . . . 28

Failure to Object to Admission During Victim’s Testimony of Highly Inflammatory

Racial Remarks Allegedly M ade By Beard, Despite Court’s Having Gra nted

Pretr ial Motion in Limine to Exclude Racia l Remarks . . . . . . . . . . . . . . . . . . . . . 32

Failure to Object to Prejudicial and Irrelevant Hearsay Statement Made by Beard at

Booking Desk that “Dead Men Don’t Talk.”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Failure to Request Proper Lesser Included Offense Instr uction for Reckless Driving. . . . . 40

Knowing Presenta tion By State of Perjured Testimony by Officer Dawe Regarding

Alleged Victim Mart in Anderson’s Fa lse Claim that the Defendant Brandished a

Firearm Denied Beard a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Failure to Present Exculpatory Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Failure to Properly P repare for Trial and Present Exculpatory Physical Evidence -

3

Enlarged Photos of Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Failure to Properly C ross-Examine Officer Dawe With Evidence tha t Officer Falsified

Police Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Oath of Pet itioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4

Table of Citations

Cases

Abella v. State, 429 So.2d 774 (Fla. 3d DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ailer v. State, 114 So.2d 348, 351 (Fla. 2d DCA 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) . . . . . . . . . . . . . . . . . . 43

Anderson v. State, 822 So.2d 1261, 1265 -1266 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.1990), aff'd, 908 F.2d 968 (4th

Cir.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) . . . . . . . . . . . . . . . . . 46

Brown v. State, 430 So.2d 446, 447 (Fla.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Brown v. State, 647 So.2d 197, 198 (Fla. 1st DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Burgal v. State, 740 So.2d 82 (Fla. 3rd DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Caristi v. State, 578 So.2d 769, 773 (Fla.1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Carrillo v. Sta te, 727 So.2d 1047, 1047 -1048 (Fla. 2nd DCA 1999) . . . . . . . . . . . . . . . . . . . . . 36

Cooper v. Sta te, 136 Fla. 23, 186 So. 230 (Fla. 1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Corbitt v. Sta te, 584 So.2d 231, 232 (Fla. 5th DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cottle v. State, 733 So.2d 963, 966-967 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) . . . . . . . . . . . . . . . . . . . . 46

Deas v. State, 119 Fla. 839, 845, 161 So. 729, 731 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Ford v. State, 825 So.2d 358 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Gaines v. State, 630 So.2d 198, 199 (Fla. 5th DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ginwright v. State, 466 So.2d 409, 410 (Fla. 2d DCA 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

5

Gluck v. State, 62 So.2d 71, 73 (Fla.1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Gonzales v. Sta te, 691 So.2d 602, 603 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Graham v. S tate, 659 So.2d 722, 723 (Fla. 1st DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hilligenn v. State, 660 So.2d 361 (Fla. 2d DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hilligenn v. State, 660 So.2d 361, 362 (Fla. 2d DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Holiness v. Moore-Handley, Inc. 114 F.Supp. 2nd 1176 (N.D. Ala. 1999) . . . . . . . . . . . . . . . . . 32

Hopps v. State, 594 So.2d 848 (Fla. 2nd DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Huggins v. S tate, 129 Fla. 329, 176 So. 154 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 754 (1992) . . . . . . . . . . . . . . . 24

In re Code of Judicial Conduct, 2003 WL 151771 (Fla. January 23, 2003) . . . . . . . . . . . . . . . . 26

Jervis v. State, 727 So.2d 981, 982 (Fla. 5th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Lavin v. State, 754 So.2d 784, 787 (Fla. 3rd DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Lee v. State, 677 So.2d 312 (Fla. 1st DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Lee v. State, 677 So.2d 312, 313 (Fla. 1st DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Levens v. State, 598 So.2d 120, 121 (Fla. 1st DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 3 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Majors v. Sta te, 645 So.2d 1110, 1110 (Fla. 1st DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Martens v. Sta te, 517 So.2d 38, 39 (Fla. 3rd DCA 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Maxwell v. Wainwright, 490 So.2d 927 (Fla.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1775, 95 L.Ed.2d 262 (1987) . . . . . . . . . . . 34

McLin v. State, 827 So.2d 948 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 to 360 U.S. 264, 272, 79 S.Ct. 1173,

1179 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

6

Nixon v. Sing letary, 758 So.2d 618, 622 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Pait v. State, 112 So.2d 380, 385 (Fla.1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Paramore v. State, 229 So.2d 855, 860 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92

S.Ct. 2857, 33 L.Ed.2d 751 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Parker v. Gladden , 385 U.S. 363 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Peterson v. BMI Refractories, 132 F.3d 1405 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Peterson v. State, 376 So.2d 1230, 1234 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642

(Fla.1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867, 868 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 23

Reynolds v. Alabama Dept. of Transp., 4 F.Supp. 2nd 1068 (M.D. Ala. 1998) . . . . . . . . . . . . . . 32

Rosa v. State, 712 So.2d 414, 415 (Fla. 4th DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rose v. Mitchell, 443 U.S. 545, 558-59, 99 S.Ct. 2993, 3001, 61 L.Ed.2d 739 (1979) . . . . . . . . 34

Rose v. State, 675 So.2d 567 (Fla.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rutherford v. State, 727 So.2d 216 (Fla.1998); Rose v. State, 675 So.2d 567 (Fla.1996) . . . . . . 18

Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Seymore v. State, 693 So.2d 647 (Fla. 1st DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Seymore v. State, 693 So.2d 647, 647 (Fla. 1st DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Singer v. State, 647 So.2d 1021 (Fla. 4th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) . . . . . . . . . . . . . . . . . 46

Stanley v. State, 648 So.2d 1268, 1269 (Fla. 4th DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

State v. Ginebra, 511 So.2d 960 (Fla.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Glosson, 462 So.2d 1082, 1085 (Fla.1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

7

State v. James, 48 Wash.App. 353, 739 P.2d 1161, 1167 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Shorette, 404 So.2d 816, 817 (Fla. 2d DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Stillings, 882 S.W.2d 696, 704 (Mo.Ct.App.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Whi te, 324 So.2d 630, 631 (Fla.1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Steel v. State, 684 So.2d 290, 291-92 (Fla. 4th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . . . . . . . 18

Taylor v. State, 589 So.2d 997 (Fla. 1st DCA 1991), quashed on other grounds, 608 So.2d 804

(Fla.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430,

79 L.Ed.2d 754 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States ex rel. C aruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982) . . . . . . . . . . . . . . . . . 23

United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) . . . . . . . 42

United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) . . . . . . . . . . . . 43

United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. C ronic, 104 S.Ct. 2039, 466 U.S. at 658-59, 104 S.Ct. 2039 (1984) . . . . . . . . . 46

United States v. Hogan, 712 F.2d 757, 759-60 (2d Cir.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir.1991) . . . . . . . . . . . . . . . . . . 23

Van Dyke v. State, 697 So.2d 1015, 1015 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Walden v. State, 682 So.2d 1196 (Fla. 1st DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wallace v. Sta te, 688 So.2d 429 (Fla. 3rd DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

8

Wilson v. S tate, 647 So.2d 185, 186 (Fla. 1st DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Young v. State, 608 So.2d 111, 113 (Fla. 5th DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Statutes

Florida Statutes, § 38.10 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Florida Statutes, § 784.011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Florida Statutes, § 784.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Rules

Rule 2.160, F lorida Rules of Judicial Administra tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Rule 3.171(c)(2), Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Rule 3.171(c)(2)(B), Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Rule 3.800, Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rule 3.850, Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12


Rule 3.850(d), Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47


9

Other Authorities

ABA Standards for Criminal Justice: Prosecution Function and Defense Function, stds. 4-

6.2(b)(3d ed.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Annotation, Inattention of Juror from Sleepiness or Other Cause as Ground for Reversal or

New Trial, 88 A.L.R.2d 1275 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Canon 3, Florida Code of Judicial Conduct (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Due Process Clause of the Fifth Amendment to the United Sta tes Constitu tion . . . . . . . . . . . . . . 43

Florida Constitution, Article I, § 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Standards For Crimina l Justice §§ 3-3.5, 3-48--3-49 (2d ed.1980) . . . . . . . . . . . . . . . . . . . . . . 43

Internet Citations

williamkent.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

10

IN THE CIRCUIT COURT

SIXTH JUDICIAL CIRCUIT

PINELLAS COUNTY, FLORIDA

CLEARWATER TRIAL DIVISION

CIRCUIT COU RT CRIMINAL CASE NO. CRC00-08042CFANO -A

MICHAEL E. BEARD

vs.

STATE OF FLORIDA

___________________/

DEFENDANT BEARD’S MOTION FOR

POST-CONVICTION RELIEF PURSUANT TO

FLORIDA RULE OF CRIMINAL PROCE DURE 3.850

COMES NOW , the Defendant , MICHAEL E. BEARD, by and thr ough his unders igned

counsel, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, and hereby moves this

Honorable Court for an order vacating the Defendant’s judgment and sentence, for the reasons set

forth below.

Course of Proceedings and Statement of Relevant Facts

General Background.

Michael E. Beard (hereinafter sometimes referred to as “Beard” or the Defendant) was

charged in a two count informa tion with aggrava ted assault arising out of an incident in which he

drove in his car past a neighbor’s home, the neighbor signaled from the sidewalk for him to slow

down, he stopped, drove back toward the neighbor, stopped his car, got out of the car , and entered

into a verbal confrontation with the neighbor (James Champion) and the neighbor’s son-in-law,

1 The trial transcript is included in full in the Appendix hereto, as Item 10.

2 Rule 3 .850 allows two yea rs from the mandate on the direct appeal. 28 U.S.C. §§ 2254

allows a one year filing window for a subsequent federal habeas if the state denies relief, and that

one year time limit which runs from the date of the decision, not the mandate, is tolled during the

pendency of any timely filed state post-conviction motion and is further extended an additional

ninety (90) days for the period allowed to file a petition for certior ari with the United Sta tes

11

Mar tin Anderson.1

Beard retained counsel to represent him on the charges, Walter Leon Grantham, Jr. The case

went to trial by jury. Beard was convicted and sentenced to three years impr isonment on count one

and five years probation to follow on count two.

Beard then terminated Grantham as his counsel and retained Shea Moxon, Esq, to represent

him on his direct appea l. Beard rema ined out on bond during the trial and on supersedeas bond

during the appeal. The Second District C ourt of Appeal affirmed the conviction and sentence per

curiam, reported in the table of decisions without reported opinions at Beard v. State, 821 So.3d

1063 (Fla. 2nd DCA 2002). T he decision of the Second District Court of Appeal issued on June 12,

2002.

Thereafter Beard filed a habeas for ineffective assistance of appellate counsel, arguing that

Beard’s appellate counsel should have brought to the attention of the Second Distr ict Cour t of

Appeal the basis for an automatic disqualification due to the fact that Judge Stringer, who sa t on the

appellate panel on the direct appeal, wa s the fa ther of the origina l prosecutor on the tr ial case,

Rhonda Stringer. That habeas is presently pending before the Second District Court of Appeal and

as of the date hereof there has been no decision entered.

This motion under Rule 3.850 is the Defendant’s first such motion and has been filed in a

timely manner.2

Supreme Court, whether such motion is filed or not. Coates v. Byrd, 211 F.3d 1225 (11th Cir.

2000).

12

Conclusion Of Procedural History

Beard has filed no previous motion under Rule 3.800 or Rule 3.850 , Florida R ules of

Criminal Procedure, or otherwise. This motion is filed in a timely manner under Rule 3.850, being

filed within two year s of the manda te of his direct a ppeal.

13

Issues Presented

This post-conviction relief motion raises the following issues:

1. Tria l counsel rendered ineffective assistance of counsel in not objecting to the imposition of two

separate convictions when there was but a single offense. Cf. Taylor v. State, 589 So.2d 997 (Fla.

1st DCA 1991). Had a t imely object ion been made, this er ror would have been preserved for appeal

and such an er ror, if properly p reserved, is reversib le error as to the judgment and sentence.

2. Tria l counsel rendered ineffective assistance of counsel in not ob jecting to a related score sheet

error; the score sheet should not have scored two counts of aggravated assa ult when a conviction

and sentencing for only one offense was proper. Had a timely objection been made, this error would

have been preserved for appeal and such an err or, if p roper ly preserved, is reversible error as to the

judgment and sentence.

3. Tria l counsel rendered ineffective assistance of counsel in not objecting to the fact that there

were two jurors who slept through portions of the trial including critical stages of the trial. This was

brought to trial counsel’s a ttention in the course of the trial and he failed to act. Defendant was

denied Due Process and the right to tr ial by jury as a r esult of the two sleeping juror s. Had a timely

objection been made, this error would have been preserved for appeal and such an err or, if properly

preserved, is reversible error.

4. Trial counsel rendered ineffective assistance of counsel in not objecting to the admission of

testimony that the Defendant made a sta tement at the scene of his arrest and again a t the booking

desk to the effect that “you’re dead” and “dead men don’t talk.” Had a timely ob jection been made,

this error would have been preserved for appeal and such an error , if properly preserved, is

reversib le error. Additionally, this Court cannot be confident beyond a reasonable doubt that had

3 The probation plea offer was a later plea offer than the plea offer referred to above that

was not communicated to the Defendant . Tr ial counsel did convey this later proba tion plea offer

to the Defendant and the Defendant rejected it based on the information he had at the time about

the strength of the case. Trial counsel had failed to convey an earlier plea offer that the case

would be dropped if the Defendant would move out of the neighborhood.

14

a timely objection been ma de and the jury not heard this inflammatory evidence, that the verdict

would have been the same.

5. Trial couns el rendered ineffective assistance of counsel in not conveying the state’s plea offer,

which had it been conveyed, the defendant would have accepted.

6. Trial counsel rendered ineffective assistance of counsel in not communicating to the Defendant

the chang e in the opinion of the retained defense expert, Dr . Kent Spea rs, whose revised written

opinion was adverse to the Defendant’s defense theory, and which change in opinion was only

learned by the Defendant after the tr ial. Had the revised opinion been communicated to the

Defendant in a timely manner, the Defendant would have accepted the S tate’s plea offer of

proba tion.3

7. Trial counsel rendered ineffective assistance of counsel in not obtaining and presenting at trial

the 911 tapes in which the two alleged victims made near contemporaneous calls to the police but

did not allege an aggravated assault against themselves, but only repor ted reckless driving and a later

verbal confrontation. T his Court cannot be confident beyond a reasonable doubt that had this

evidence been proper ly presented to the ju ry tha t the verdict would have been the same.

8. Trial counsel rendered ineffective assistance of counsel in not requesting a jury instruction on

the lesser included offense of reckless driving. Reckless driving is a lesser included offense of

aggravated assau lt when the assault is alleged to have been committed by driving an automobile at

someone. The evidence in the case supported a charge of reckless driving. In particular the 911

15

tapes suppor ted a charge of reckless driving. T his Court cannot be confident beyond a reasonable

doubt that had the correct jury instruction been requested on reckless dr iving that the jury would not

have convicted the Defendant on the lesser misdemeanor offense rather tha n on the greater felony

offense. Had a timely objection been made, this error would have been preserved for appea l and

such an error, if properly preserved, is reversible error.

9. Trial counsel rendered ineffective assistance of counsel in not ob jecting to the Sta te’s improper

argument concerning the relevance of the confrontation tha t occurred after the Defendant exited his

vehicle. The State improperly a rgued that the jury could find the Defendant guilty of aggravated

assa ult if the jury believed that the Defendant assaulted the victims after he had exited the

automobile and allegedly engaged in a verbal, threatening confrontation. This Court cannot be

confident beyond a reasonable doubt that had this evidence been objected to and excluded or even

simply a proper limiting inst ruction been given as it was admitted, that the verdict would have been

the same. Alternat ively, if an objection had been overruled the ma tter would have been preserved

for appeal and would have been reversible error on appeal.

10. Trial counsel rendered ineffective assistance of counsel in not objecting to the admission of

racia lly inflammatory language that the a lleged black victim claimed was used against him by the

white Defendant, especially in considera tion of the fact that the trial court had properly granted a

pretrial defense motion in limine directed at excluding any test imony about the ra cial remarks made

by the Defendant. Had a timely objection been ma de, this er ror would have been preserved for

appeal and such an error, if pr operly preserved, is revers ible error . Alterna tively, had a timely

objection been made and sustained, and the jury not heard this extremely inflammatory and

prejudicial testimony this C ourt cannot have confidence beyond a r easonable doubt that the verdict

16


11. State Knowingly Presented Perjured Testimony Concerning Alleged Victim Martin Anderson’s

False Claim That Defendant Had Brandished a Firearm.

12. Trial counsel rendered ineffective assistance of counsel in not conducting further investigat ion

of the Defendant and his wife’s statement to the trial counsel pr ior to trial tha t the wife had been a

witness to the incident and could provide exculpatory testimony and trial counsel rendered

ineffective assistance of counsel in not presenting the wife’s testimony at tr ial. The wife was an eye

witness to the incident and would have provided exculpa tory testimony. Had this test imony been

presented at tria l, this Cour t cannot have confidence beyond a reasonable doubt that the verdict


13. Tria l counsel rendered ineffective a ssistance of counsel in not preparing enlarged copies of the

photos of the locus in quo which would have demonstrated that the physical evidence - marks left

on the roadway - were inconsistent with the State’s theory of the case but consistent with the defense

theory of the case. Enlarged and enhanced photos - which the Defendant expressly requested his

counsel obtain and pr esent at tria l - and which are being filed concurrently herewith, conclusively

show that certa in of the marks the Sta te argued showed the Defendant ’s assaultive driving were not

even tire marks as the State claimed. Additionally, the enlarged and enhanced exhibits, contradict

the States arguments relating to the significance of certain of the marks and instead support Dr.

Spears’ original conclusions in Report Number One. Had this evidence been properly presented at

trial, this Cour t cannot have confidence beyond a reasona ble doub t that the verdict would have been

the same.

14. Tria l counsel rendered ineffective assistance of counsel in not properly cross-examining Officer

17

Dawe on his false police report . Had this cros s-examination been done it would have destroyed

Officer Dawe’s cr edibility; this Court cannot have confidence beyond a reasonable doubt that the

verdict would have been the same had Dawe been impeached with his false police report.

18

Statement of Pertinent Facts

and Incorporated Memorandum of Law

Ineffective Assistance of Counsel Generally.

In order to prove an ineffective assistance of counsel claim, a defendant must establish two

elements: first , the defenda nt must show that counsel's performance was deficient. This requires

showing that counsel made errors so ser ious that counsel was not functioning as the "counsel"

guaranteed the defendant by the Sixth Amendment. S econd, the defendant must show that the

deficient performance prejudiced the defense. This requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v.

State, 727 So.2d 216 (Fla.1998); Rose v. State, 675 S o.2d 567 (Fla.1996). In Maxwell v.

Wainwright, 490 So.2d 927 (Fla.1986), the Florida Supreme Court expla ined the application of the

Strickland standard:

A claim of ineffective assistance of counsel, to be considered meritorious, must

include two general components. First, the claimant must identify particular acts or

omissions of the lawyer that a re shown to be outside the broad range of reasonably

competent performance under prevailing professional standards. Second, the clear,

substantial deficiency shown must further be demonstrated to have so affected the

fairness and reliability of the proceeding that confidence in the outcome is

undermined.

Based on the facts and issues presented above and set for th below, Beard was prejudiced by

his own trial counsel’s ineffective assistance concerning the defenses and objections set forth herein.

The performance and prejudice prongs of Strickland are met in this case, and Beard is entitled to

have his convictions vacated.

19

Trial Co unsel’s Failure to Disclose Expert’s Recantation of Opinion.

Before trial the State made an offer that was communicated to the Defendant by his trial

counsel. That offer was to p lea to a single count of aggravated assault for a sentence of proba tion.

The Defendant refused to accept that offer based on the information available to him about his case

and his defense. However , the Defendant learned after the trial that his trial counsel had failed to

disclose to him a materia l matter tha t would have borne on his decision whether to accept the State’s

probation offer or not.

At the Defendant’s insistence, his tr ial counsel made use of a defense expert, a n engineer

named Dr. Kent Spears. Dr. Spear s was retained to examine the physical evidence, in part icular the

skid marks on the roadway to come to a conclusion about the speed and direction of travel of the

Defendant’s vehicle at the time of the incident. Dr. Spea rs made an initial exa mination of the scene

of the alleged crime, photographs were taken, measurements made of marks on the roadway,

resulting in Dr. Spears preparing a written report of his expert opinion and conclusions. This report

was favorable to the defense theory of the case.

Dr. Spears was disclosed to the State in discovery as was his written repor t (“R eport Number

One”). A true and correct copy of Report Number One is included in the Appendix as Item 3.

The State conducted a discovery deposition of Dr. Spears. At this deposition the State

confronted Dr. Spea rs with certa in assumpt ions from the State’s point of view as to the facts of the

incident. Dr. Spears r esponded that he had not been awa re of those assumptions and had not based

his report on them.

Thereafter, Dr. Spears revisited the scene of the incident and made a second examination.

During this reexamination he took into consideration the State’s claims regarding the operative facts.

4 As late as February 8, 2001 trial counsel Grantham wrote a letter to Defendant Beard

(included in the Appendix as Item 8) stating that Dr. Spears’s concluded that the state’s

witnesses’s testimony was inconsistent with the tire marks he had observed. This was not true

because Dr. Spears’ Report Number Two had already been completed and delivered to

Grantham on or about December 4, 2000 - two months earlier - and in Report Number Two Dr.

Spears backed off of this conclusion and agreed with the state’s witnesses.

5 In the charge conference, the court suggested it would read the instruction on expert

witnesses “if you’ve got your expert.” Grantham replied “Yes.” Trial transcript, page 464.

20

Dr. Spear s reevaluated his conclusions that he had made in Report Number One. Dr. Spea rs then

wrote a second repor t (“R eport Number Two”) a true and correct copy of which is included in the

Appendix as Item 4. Report Number Two essentially receded from the conclusions which were

favora ble to the Defendant and reached new conclusions which no longer supported the defense

theory. The effect of Repor t Numb er Two was tha t Dr. Spears could no longer be used as a defense

witness because his new conclusions not only did not support the defense theory but actually

supported the State’s witnesses’s claims.

Report Number Two was delivered to the Defendant’s tr ial counsel prior to trial.

Inexplicably the Defendant’s trial counsel did not share Report Number Two with the Defendant and

did not disclose the defense expert’s change in position to the Defendant. Instead, the tria l counsel

kept the expert under subpoena and had him present outside the cour troom as if he would be called

as a defense witness. The Defendant went to trial thinking that he had an unimpeached expert

witness prepared to test ify who would support his theory of defense. The Defendant did not know

at the time he took his case to trial tha t his tria l attorney had received this new report from their

expert that rendered him unusable for the defense.4 His trial counsel did not call Dr. Spears as a

witness.5

Only after the tria l did the Defendant lea rn of the existence of Report Number Two. The

21

Defendant learned about Report Number Two only when he went to his trial counsel’s office to fire

his tria l counsel and to pick up a copy of his file. He found in the file Report Number Two and then

for the first time understood why the expert witness was not called to tes tify at tr ial.

Had the Defendant known that his own expert witness was no longer ava ilable to support his

theory of defense he would not have taken the case to tria l, but would have accepted the State’s offer

of proba tion.

Rule 3.171(c)(2)(B), Florida Rules of Criminal Procedure, provides, in relevant part, that

"[d]efense counsel shall advise [the] defendant of ... all pertinent matters bearing on the choice of

which plea to enter and the particulars attendant upon each plea and the likely results thereof...." In

other words, "defense counsel has the obligation to ensure that a defendant understands the direct

consequences of his plea." Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991). Beard’s trial

attorney failed to fulfill his obligation to his client by fa iling to disclose to Bea rd before he elected

to go to trial and not accept the State’s offer of probation that his key defense witness, expert Dr.

Kent Spears, had reevaluated his original conclusions and had essentially recanted his original report

and opinion and issued a second report and opinion that was no longer fa vorable to the defense.

Because the Defendant had intended to rely upon this report as the foundation of his defense,

the trial attorney had a duty under Rule 3.171(c)(2)(B) to disclose to his client that the expert witness

was no longer available due to his change of mind and new opinion and report. Had the Defendant

known that his expert witness could not be used in support of his defense, he would have accep ted

the State’s offer of probation, which was a lesser sentence than he ended up with after taking the

case to trial. Thus, the Defendant was prejudiced by his counsel’s failure to fulfill his obligation

under Rule 3.171(c)(2)(B) and timely disclose the adverse change in the conclusions of the defense

6 The Setzer reversal was based on defense counsel's obligat ion, under Florida Rule of

Criminal P rocedure 3.171(c)(2), to advise the defendant "of a ll pertinent matters bearing on the

choice of which plea to enter, the particulars attenda nt upon each plea, and the likely result

thereof." Setzer, 575 So.2d at 747, citing State v. Ginebra, 511 So.2d 960 (Fla.1987). See also

Caristi v. State, 578 So.2d 769, 773 (Fla.1991); Corbitt v. Sta te, 584 So.2d 231, 232 (Fla. 5th

DCA 1991). Levens v. State, 598 So.2d 120, 121 (Fla. 1st DCA 1992).

22

expert. Brown v. State, 647 So.2d 197, 198 (Fla. 1st DCA 1994).

This error requires the Court to set aside the Defendant’s convic tion and sentence because

it was based upon a not guilty p lea that was not knowingly and intelligently made, because his

counsel failed to fulfill his defense counsel duty of keeping the client informed of matters that were

material to the decision whether to take the case to trial or to accept the State’s plea offer.

As the court pointed out in Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991), a plea should

be entirely voluntary and entered with knowledge and understanding of its consequences.6 Pursuant

to Florida Rule of Cr iminal Procedure 3.171(c)(2), defense counsel is required to inform his client

about the part iculars a ttendant on the plea and the likely result thereof. It is the obligation of defense

counsel to see that his client understands the direct consequences of his plea. Good cause to

withdraw a plea is found where a defendant proves that the plea was entered without a proper

understanding of its nature and consequences or was based upon a failure of communication or

misunderstanding of the facts. Gaines v. State, 630 So.2d 198, 199 (Fla. 5th DCA 1993).

Failure To Communicate Plea Offer.

The Defendant and one of the two alleged victims of the offense lived in the same

neighborhood, just f ive houses down from one another. The state made a pretrial offer to defense

counsel that the felony cha rges would be dropped if the defendant would move out of the

23

neighborhood. The defense counsel did not communicate this offer to the defendant and the

defendant only learned of the existence of the offer after his tr ial and conviction. He would have

accep ted this offer if it had been communicated to him. Evidence of his willingness to accept such

an offer is that a fter the trial the court required the defendant to move out of the neighborhood as

a condition of his supersedeas bond and he accepted that condition and moved from the

neighborhood.

The case law uniformly holds that counsel is deficient when he or she fails to r elate a plea

offer to a client. United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir.1991). Federal

courts are "unanimous in finding that such conduct constitutes a violation" of the right to effective

assistance. Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.1990), aff'd, 908 F.2d

968 (4th Cir.1990); see also United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d

Cir.1982) (noting that failure to inform client "constitutes a gross deviation from accepted

professional standards"). S tate courts have a lso consistently held that this omission constitutes a

deficiency. Lloyd v. State, 258 Ga. 645, 373 S .E.2d 1, 3 (1988); see Rasmussen v. S tate, 280 Ark.

472, 658 S.W.2d 867, 868 (1983) (finding du ty to notify because any plea a greement is between

accused and prosecutor); State v. Simmons, 65 N.C .App. 294, 309 S.E.2d 493 (1983) (holding that

such an allegation ordinarily states a claim).

Many courts have cited the American Bar Association Standards for Criminal Justice as

confirmation that the failure to notify clients of plea offers falls below professional standards. See,

e.g., Lloyd, 373 S.E.2d at 2. The ABA standards require defense attorneys to "promptly

communicate and explain to the accused all significant plea proposals made by the prosecutor ." ABA

Standards for Crimina l Justice: Prosecution Function and Defense Function, stds. 4- 6.2(b)(3d

24

ed.1993). The commentary to standard 4-6.2 states :

Because plea discussions are usually held without the accused being present, the

lawyer has the duty to communicate fully to the client the substance of the

discussions. ... It is important that the accused be informed both of the existence and

the content of proposals made by the prosecutor; the accused, not the lawyer, has

the right to decide whether to accept or reject a prosecution proposal, even when the

proposal is one that the lawyer would not approve.

The Georgia Supreme Court in Lloyd noted Strickland’s suggestion that the ABA standard

would provide an appropr iate guide for "[p]revailing norms of practice," although it did not

constitute dispositive proof. 373 S.E.2d at 2. California's highest court has stressed counsel's

"overarching duty to advocate the defendant's cause and the more particular duties to consult with

the defendant on the important decisions and to keep the defendant informed of important

developments in the course of the prosecu tion." In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713,

830 P .2d 747 , 754 (1992) (quoting Strickland, 466 U.S. at 688, 104 S .Ct. 2052).

The Florida Supreme Court has held that defense attorneys have the duty to inform their

clients of plea offers. Cottle v. State, 733 So.2d 963 , 966-967 (Fla. 1999); See Fla. R.Crim. P.

3.171(c)(2) (mandating that counsel advise of "(A) all plea offers; and (B) all pertinent matters

bearing on the choice of which plea to enter"). Florida case law has heretofore consistently r elied

on a three-part test for analyzing ineffective assistance claims based on allegations that counsel failed

to properly advise the defendant about plea offers by the State. See Lee v. State, 677 So.2d 312 (Fla.

1st DCA 1996); Seymore v. State, 693 So.2d 647 (Fla. 1st DCA 1997); Hilligenn v. State, 660

So.2d 361 (Fla. 2d DCA 1995); Abella v. State, 429 So.2d 774 (Fla. 3d DCA 1983).

The Florida cases hold that a cla im must allege the following to make a p rima facie case: (1)

counsel failed to relay a plea offer , (2) defendant would have accepted it, and (3) the plea wou ld

have resulted in a lesser sentence.

25

Where the defendant was not notified of a plea offer, courts have held that the claimant must

prove to a "reasonable probability that he [or she] would have accepted the offer instead of standing

trial." State v. Stillings, 882 S.W.2d 696, 704 (Mo.Ct.App.1994) (rejecting claim where evidence

showed appellant wou ld have refused to plead guilty if made aware of plea offer); see also State v.

James, 48 Wash.App. 353, 739 P.2d 1161, 1167 (1987) (requiring a "reasonable probability that

but for an attorney's error, a defendant would have accepted a plea agreement").

As noted a bove, before Cottle, and consistent with the practice in the federal courts and other

state courts, courts in this s tate ha ve recognized claims arising out of counsel's failure to inform a

defendant of a plea offer, and have required a claimant to show that: (1) counsel failed to

communicate a plea offer or misinformed defendant concerning the pena lty faced, (2) defendant

would have accepted the plea offer but for the inadequa te notice, and (3) acceptance of the State's

plea offer would have resulted in a lesser sentence. See Young v. State, 608 So.2d 111, 113 (Fla. 5th

DCA 1992) (citing United States ex rel. C aruso v. Zelinsky, 689 F.2d 435, 437 (3d Cir.1982));

accord Rosa v. State, 712 So.2d 414, 415 (Fla . 4th DCA 1998); Gonzales v. Sta te, 691 So.2d 602,

603 (Fla. 4th DC A 1997); Van Dyke v. State, 697 So.2d 1015, 1015 (Fla. 4th DCA 1997); Seymore

v. State, 693 So.2d 647, 647 (Fla. 1st DCA 1997); Lee v. State, 677 So.2d 312, 313 (Fla. 1st DCA

1996); Steel v. State, 684 So.2d 290, 291-92 (Fla. 4th DCA 1996 ); Hilligenn v. State, 660 So.2d

361, 362 (Fla. 2d DCA 1995); Graham v. S tate, 659 So.2d 722 , 723 (Fla. 1st DCA 1995); Wilson

v. State, 647 So.2d 185, 186 (Fla. 1st DCA 199 4) (finding the foregoing elements s tated "colorable

ground for relief"); Majors v. State, 645 So.2d 1110, 1110 (Fla. 1st DC A 1994) (finding a

"sufficient" basis for an evidentia ry hearing); Ginwright v. State, 466 So.2d 409, 410 (Fla. 2d DCA

1985) (remanding because the "allegations, if true, may be found by a t rier of fact to const itute a

7 The trial judge may not have observed the sleeping jurors because during the course of

the trial the trial judge appeared to be engaged in and have her attention occupied by clerical

work unrelated to the trial. Throughout the tria l the trial clerk was p repar ing papers for the

judge’s review and signature, which appeared to require the judge’s almost constant attention.

Defendant Beard believes this explains why the trial judge did not observe the sleeping jurors. If

the trial judge will be a witness in the evidentiary hear ing on this motion it will be necessary for

the trial judge to withdraw from this mat ter and ask that the matter be reass igned to a neutral and

detached judge for determination. Defendant Beard expressly requests the trial judge to

withdraw if she intends to either testify or to rely upon her own observations and memory of

the facts of the proceeding relevant to determination of this motion to determine the motion.

See, In re Code of Judicial Conduct, 2003 WL 15 1771 (Fla. January 23, 2003), modifying

Canon 3 of the Flor ida Code of Judicial Conduct, which now reads in par t:

E. Disqualification.

(1) A judge shall disqua lify himself or herself in a proceeding in which the judge's

impartia lity might reasona bly be questioned, including but not limited to instances

26

substantial omission by defense counsel"); Young v. State, 625 So.2d 906 (Fla. 2d DCA 1993);

Martens v. Sta te, 517 So.2d 38, 39 (Fla. 3rd DCA 1987), review denied, 525 So.2d 879 (Fla.1988).

The Florida Supreme Court ra tified this approach in Cottle v. State, 733 So.2d 963, 966-967 (Fla.

1999).

Defendant-Petitioner Beard has made a sufficient and particularilzed showing that there was

an offer communicated to his counsel that was not relayed to him, that the offer would have resulted

in a more favorable disposit ion than he obta ined after trial, and ha d he known of the offer, he would

have accepted it. Beard is entitled to relief on this claim or at least an evidentiary hearing to prove

his claim.

Sleeping Jurors.

During the course of almost the entire trial two of the jurors were observed sleeping. This

was brought to the Defendant’s trial counsel’s attention at the time. The trial counsel failed to ca ll

the matter to the court’s at tention.7 Had this been brought to the Cour t’s attention, the Court would

where:

(a) the judge has a personal bia s or prejudice concerning a party or a party's

lawyer, or personal knowledge of disputed evidentiary fac ts concerning the

proceeding;

See also Section 38.10, Florida Statutes (2001), and Rule 2.160, Florida Rules of Judicial

Administration.

8 The remedy could have been to remove the sleeping jurors and replace them with

alternates. Burgal v. State, 740 So.2d 82 (Fla. 3rd DCA 1999).

27

have been required to replace the sleeping juror s with alternate jurors, if possible, and if not possible,

would have been required to decla re a mist rial.

A defendant presents a facially sufficient claim requiring an evidentiary hearing if the

Defendant alleges that jurors slept during all or an important or essential portion of his trial. Kelly

v. State, 805 So.2d 88 (F la. 2nd DCA 2002); Bieser v. State, 677 So.2d 59 (Fla. 1st DCA 1996);

Kesick v. State, 448 So.2d 644 (Fla. 4th DCA 1984).8 Defendant Beard alleges that one or more of

the jurors slept during all or most of the trial proceedings.

See Annotation, Inattention of Juror from Sleepiness or Other Cause as Ground for Reversal or

New Trial, 88 A.L.R.2d 1275 (1963). Cf. Parker v. Gladden, 385 U.S. 36 3 (1966).

Single Offense Improperly Resulted in Multiple Convictions and Resulted in Sentencing

Guideline Scoresheet Error.

Trial counsel rendered ineffective a ssistance of counsel in not objecting to imposition of two

separate convictions when there was but a single offense. Cf. Taylor v. State, 589 So.2d 997 (Fla.

1st DCA 1991), quashed on other grounds, 608 So.2d 804 (Fla.1992); Walden v. State, 682 So.2d

1196 (Fla. 1st DCA 1996)(“Appellant's conviction on count two, a rmed robbery, is reversed. Brown

v. State, 430 So.2d 446, 447 (Fla.1983) ("W hat is dispositive is whether there have been successive

28

and distinct forceful takings with a separate and independent intent for each transaction.")[emphasis

supplied]. See also Hopps v. State, 594 So.2d 848 (Fla. 2nd DCA 1992)(single robbery occu rs when

robber confronts couple and takes wife’s purse containing husband’s property).

Trial counsel rendered ineffective assistance of counsel in not objecting to score sheet error;

score sheet should not have scored two counts of aggravated assa ult when conviction for only one

offense was proper.

911 Tapes and Failure to Conduct Proper Defense Investigation.

Trial counsel rendered ineffective assistance of counsel in not obtaining and presenting at

trial the 911 tapes in which the two alleged victims made near contemporaneous calls to the police

but did not allege an aggravated assault, but only reported reckless driving.

The police investigation in this case was triggered by two calls to the 911 operator. The two

calls occurred just moments after the incident which resulted in the charges. Each of the two a lleged

victims made a 911 call. Tape recordings of 911 ca lls are public records under Flor ida’s Public

Records Act, Chapter 119, Florida Statutes. See City of Miam i v. Post Newsweek Stations Florida,

Inc., 27 Fla. Law Weekly D2179 (Fla. 3rd DCA 2002).

The Defendant express ly requested his trial counsel obtain the two 911 tapes, anticipating

that there would likely be exculpatory evidence on the tapes, because the Defendant told his trial

attorney tha t the alleged victims were exaggerat ing and lying in their claims of an aggravated assault.

The tria l counsel never obtained either of the two 911 tapes despite the fact that they were read ily

obtainable.

After the tria l, the Defendant’s father made a public records request on the Clearwater police

department and obta ined a copy of the 911 calls. A true and correct copy of the tape of both calls

9 Not aggravated assault, a felony charge, but only assault, a misdemeanor.

29

provided by the Clearwater police department is being filed herewith as Appendix Item 5. A true

and correct transcript of the two calls is as follows and is included in the Appendix as Item 6:

Firs t Call

This recording by Police Communications Supervisor Dave Dorn in regards to an

incoming phone call to the Communications Division on May 9, 2000, at

approximately 20:26 hours. Case number 00-13117. Incoming call from a James

Champion reporting a reckless vehicle/assault.9 Tape of the incoming call follows:

OFFICER: Police, this is Car l. Clearwater Police Department, Ca rl, may I help

you?

MR. CHAMPION: Yeah, uh, could I have a police officer respond to, uh, 1737

Apache Trail. There’s a gentleman, well, he’s not a gentleman, he’s a maniac and

I think he’s been drinking. He’s in a red car and my kids are playing out in the street

and he went up and down in here, flying at first, and then when we stepped out into

the street to tell him to s low down and he stopped and skidded all the way back

burning rubber and got out and uh, threatened me. And uh several neighbors here

around in the neighborhood say this guy does this same thing. There’s kids playing

out here. He could have killed them.

OFFICER: Okay and what’s your uh name sir?

MR. CHAMPION: James Champion, I work with the Tampa Airport Police

Department.

OFFICER: Okay Mr. Champion, okay, and uh your phone number is 461-7952.

30

MR. CHAMPION: Right, yeah.

OFFICER : Okay.

MR. CHAMPION: He backed all the way up several feet skidding and squealing

his tires to get out and verbally abuse me.

OFFICER: Okay, did you uh get his uh tag number by chance on the vehicle.

MR. CHAMPION: What was that tag number, Martin, do you remember? He lives

down the street.

OFFICER: Okay, that’s fine, I will have an officer come to see you, sir.

MR. CHAMPION: Thank you.

OFFICER: Alrighty, bye-bye.

Second Call

The following recording is the associated to the first call was received at about 20:30

hours. C omplainant on this second ca ll is Martin Anderson.

OFFICER: Clearwater Police.

MR. AND ERSON: Uh, is this Clearwater Police?

OFFICER : Yes, it is.

MR. ANDERSON: Uh, we just made a complaint about a guy coming down the

street in a red Mustang, um, real fast.

OFFICER : Uh, huh.

MR. ANDERS ON: Now he’s coming back up and down the street showing a

weapon, you know what I’m saying, at a high reed of spade, at a high ra te of speed.

OFFICER : Do you have a vehicle description, tag number or anything?

31

MR. ANDER SON: He’s a red, it’s a red Mustang with, I couldn’t make out the

last , but he lives five doors down from this house.

OFFICER: Okay, your na me sir is what p lease.

MR. ANDERSO N: My name is M artin Anderson, it was my father-in-law that

called before, then the gu y backed up a t a high rate of speed, jumped out of the car.

OFFICER: Okay, is he a white male or a black male?

MR. ANDERSO N: He’s, they, they say he’s Puerto Rican but he looks white to

me.

OFFICER: Okay, I’ll get somebody over to see you.

MR. ANDERS ON: Okay, you don’t know how soon that will be as he’s coming

back ar ound.

OFFICER : Deputies will be there momentar ily.

MR. ANDE RSO N: Okay.

OFFICER: Okay.

[emphasis supplied]

It is clear from these two contemporaneous 911 calls that the complainants are making a

complaint of reckless driving or misdemeanor assault (b ased on the verbal confrontation outside the

car). Indeed the Clearwater Police Depar tment itself described the complaint as r eckless driving or

assault - misdemeanor not aggravated assault.

Had this tape been obtained and presented at tr ial the claims of aggravated assault against

Champion and Anderson would have fallen flat. Champion’s own words complain that there were

children out there (which proved to not be true) who could have been killed - not that he or his son-

32

in-law were endangered by the driving.

The failure to present this evidence constitutes ineffective assistance of counsel under the

Strickland standard set forth above.

Failure to Object to Admission During Victim’s Testimony of Highly Inflammatory Racial

Remarks Allegedly Made B y Beard, Despite Court’s H aving Granted Pretrial Motion in

Limine to E xclude Racial Remarks .

During direct examination of Mar tin Anderson, the second of the two alleged victims, the

State elicited the following answer in which the State’s witness was repeating the defendant’s

remarks to his father-in-law, James Champion, the other of the two a lleged victims [both Champion

and Anderson were Black, the Defendant is White]:

Well, he came out and he was shouting obscenities, called my father-in-law, “Boy,”

“What do you want? Who are you, old man?” You don’t know who I am.” He

made all kind of gestures like that and was shouting obscenities to him.

He said he didn’t give a “ F” and you don’t tell him this. You know, he got up into

my father -in-law’s face and called him a boy and put his body up to him like this - -

like he wanted to engage in a fight.

Trial transcript, pages 330-331, emphasis supplied. The term “boy” when used to refer to an adult

black male - in this case an older and much larger Black man in comparison to the much younger,

smaller White Defendant who used the term - was clearly a racially derogatory term. See Holiness

v. Moore-Handley, Inc. 114 F.Supp. 2nd 1176 (N.D. Ala. 199 9)(describing use of term “boy” to a

Black man as a “racial epithet.”); Reynolds v. Alabama Dept. of Transp., 4 F.Supp. 2nd 1068 (M.D.

Ala. 1998) (describing use of term “boy” to Black man as a “racial slur.”); Peterson v. BMI

Refractories, 132 F.3d 1405 (11th Cir. 1998) (referring to use of term “boy” with respect to Black

man as a racial taunt and evidence of racial hostility and discrimination.).

Clear ly it was improper and reversible error for the S tate to introduce into evidence that the

10 The transcript, page 23, reads that this ruling was held “in the hearing and presence of

the jury,” bu t we are assuming that tha t is an error on the part of the court repor ter. The

preceding test reads that the court had called counsel to the bench for this discussion.

33

White Defendant had used racial epithets against the alleged Black victim, James Champion.

This very issue had been the subject of a defense motion in limine. Record on App eal,

Volume One, Page 12. The Defendant’s motion in limine read in pertinent part as follows:

2. At the time of the Defendant’s arrest while in the custody of the police car, the

Defendant shouted and yelled obscenities at the victim.

3. These obscenities were directly [sic] at the race of the victim.

The court took this motion up before commencement of the trial of the case.

THE COURT : My question in my mind is the racial epitaphs. [sic]

Trial transcr ipt, page 11. The Court cor rectly pointed ou t that it was not cha rged as a ha te crime.

Trial transcript, page 13 . The S tate incredibly a rgued that these racial epithets should be allowed

to come in as proof of the Defendant’s criminal intent. T rial transcript, page 13. This C ourt seemed

to have trouble deciding whether it was permissible to allow the Sta te to introduce aga inst the

Defendant his alleged use of racial epithets . “I’m concerned ab out the racial epitaph [sic] and I’m

trying to weigh the probative va lue of that and the prejudicial effect.” Page 14. T he Cour t initially

denied the Defendant’s motion in limine and ruled that the State could introduce the Defendant’s

use of the word “nigger” and other racial epithets. Trial transcript, page 16. Then the Court later

reconsidered its own ruling, sua sponte, and reversed itself, but only as to the use of the one word,

“nigger,” expressly allowing the use of other racial epithets.10

Clear ly the Court erred in ruling that the State could introduce racial epithets used by the

Defendant against the alleged victims. However, without a contemporaneous objection by trial

34

counsel at the time the statements were admitted, the matter was waived for presentation on direct

appeal. The use of the racia l epithets served no other purpose than to prejudice the Defendant in the

eyes of the jury and was not relevant to any issue in the case. See McCallister v. State, 779 So.2d

615 (Fla. 5th DCA 2001).

In the leading case on the issue of interjecting race into a criminal trial, the Florida Supreme

Cour t held:

We agree with appellant that the prosecutor's examination of this witness was a

deliberate attempt to ins inuate that appellant had a habit of preying on white women

and thus const ituted a n impermissible appeal to bias and prejudice.

Conduct of counsel during the course of a trial is controllable in the discretion of the

trial court, and a court's ruling will not be overturned absent a clear abuse of

discretion. Teffeteller v. State, 439 So.2d 840, 845 (Fla.1983), cert. denied, 465 U.S.

1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984); Paramore v. State, 229 So.2d 855,

860 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92 S.C t. 2857, 33 L.Ed.2d

751 (1972). The prosecutor's comments and questions about the race of the victims

of prior crimes committed by appellant easily could have aroused bias and prejudice

on the part of the jury. That such an appeal was improper ca nnot be questioned. The

questioning and resultant testimony had no bear ing on any aggrava ting or mitigating

factors . [footnote omitted]

Racial prejudice has no place in our system of justice and has long been condemned

by this Court. E.g., Cooper v. State, 136 Fla. 23, 1 86 So. 230 (1939); Huggins v.

State, 129 F la. 329 , 176 S o. 154 (1937). Nonetheless, race discrimination is an

undeniable fact of this nation's history. As the United States Supreme Court recent ly

noted, the risk that the factor of race may enter the criminal justice process has

requir ed its unceasing attention. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756,

1775, 95 L.Ed.2d 262 (1987). We cannot, however, by rule of law so quickly

eradicate attitudes long held and deeply entrenched. Thus, despite "unceas ing"

efforts, discrimination on the basis of race persists. As the United States Supreme

Court acknowledged in Rose v. Mitchell, 443 U.S. 545, 558-59, 99 S.Ct. 2993, 3001,

61 L.Ed.2d 739 (1979 ):

[W]e ... cannot deny tha t, 114 years after the close of the War

Between the States ..., racial and other forms of discr imination still

remain a fact of life, in the administration of justice as in our society

as a whole. Perhaps today that discrimination takes a form more

subtle than before. But it is not less real or pernicious.

35

The situation pr esented here, involving a black man who is charged with kidnapping,

raping, and murdering a white woman, is fert ile soil for the seeds of racial prejudice.

We find the risk that racial prejudice may have influenced the sentencing decision

unacceptab le in light of the trial court's failure to give a cautionary instruction. Our

courts consistently have held that the trial judge should not only sus tain an objection

to such improper conduct bu t also should reprimand the offending prosecuting

officer in order to impress upon the jury the gross impropriety of being inf luenced

by improper argument or testimony. Gluck v. State, 62 So.2d 71, 73 (Fla.1952);

Deas v. State, 119 Fla. 839, 845, 161 So. 729, 731 (1935); Edwards v. State, 428

So.2d 357, 359 (F la. 3d DCA 1983). Our cases also have long recognized that

improper remar ks to the ju ry may in some instances be so prejudic ial tha t neither

rebuke nor retraction will destroy their influence, and a new tr ial should be granted

despite the absence of an objection below or even in the presence of a rebuke by the

trial judge. Pait v. State, 112 So.2d 380, 385 (Fla.1959); Ryan v. State, 457 So.2d

1084, 1091 (Fla. 4th DCA 1984); Peterson v. State, 376 So.2d 1230, 1234 (Fla. 4th

DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980); Ailer v. State, 114 So.2d 348,

351 (Fla. 2d DC A 1959).

Robinson v. State, 520 So.2d 1, 6 -7 (F la. 1988).

Clearly, trial counsel fa iled in not preserving this issue for appellate review. Had the issue

been properly preserved, then under the authority of Robinson and the cases cited therein, the

conviction would have been reversed.

Failure to Object to Prejudicial and Irrelevant Hearsay Statement Made by B eard at Booking

Desk that “Dead Men Don’t Talk.”

Officer Thomas Dawe testified on direct examination by the State as follows:

Q And did you subsequently place him under the arrest after the witnesses and

the statements made by the defendant?

A Yes, ma’am.

Q And while he was in your police cruiser , did he make any other statements?

A Right when I placing him under arr est, while walking towards our vehicle, he

stated, “I’m going to kill you, you are dead.” And while he was doing that,

he was handcuffed and motioning with his head toward the cr owd, Ja mes

Champion and Michael - -

36

Q Mar tin Anderson?

A Mar tin Anderson.

Q Was he then transported to Pinellas C ounty Ja il?

A Yes, subsequently after that.

Q And did he make any s tatements while he was in the jail?

A While I was booking him in, it was Deputy Potts was the booking officer at

the time. I was with him all three of us were standing together in close

proximity and Beard spontaneously stated, “A dead man can’t ta lk.” I asked

Beard if he would comment on that and he refused to talk to me any further.”

Beard’s tria l counsel made no contempor aneous object ion to this testimony, thereby waiving

any claim on dir ect appeal.

Had an objection been made, the issue would have been preserved for appeal, and would

have been reversible error under the law of this District. This District has previously been called to

rule on an almost identical fact pattern in Carrillo v. Sta te, 727 So.2d 1047, 1047 -1048 (Fla. 2n d

DCA 1999). The case is worth quoting from at length to show its ap plicability to Beard’s case:

Juan Carrillo challenges his aggravated assault conviction. We agree that the trial

court committed reversib le error when, over Carrillo's objection, it admitted into

evidence statements he made at the time of his arrest in which the negligible

proba tive value of the statements was substantially outweighed by the prejudice to

him. Because the admission of the statements cannot be considered harmless error,

we reverse.

. . .

Deputy Nygren then testified that after C arrillo was told of Lackey's allegations he

became upset and s tated, "I'm not going to jail for tha t bitch." When he was placed

inside the police car, he banged his head on the side of the car, stamped his feet, and

cursed. He yelled, "if I'm going to ja il for this bitch, I might as well kill her." The

prosecutor, in his closing argument, relied heavily upon Deputy Nygren's tes timony.

Carrillo did not testify at his trial

. . .

37

We conclude tha t the tria l court improperly admitted the objected to sta tements and

that the error is not harmless. Accordingly, we reverse the judgment and sentence .

. .

Carrillo v. Sta te, 727 So.2d 1047, 1047 -1048 (Fla. 2nd DCA 1999).

More recently, in Lavin v. State, 754 So.2d 784, 787 (Fla. 3 rd DCA 2000), a case decided

more than one year prior to the trial of Beard’s case, the Third Distric t Court of Appea l addressed

another very similar fact pattern and reversed a conviction for a ggravated assault for admiss ion of

statements made by the defendant at the scene of the crime while he was being ar rested threatening

to kill the victim:

On October 12, 1998 , Enrique Ojeda, while driving his car with Ivan Herrera as a

passenger, was involved in a traffic a ltercation with Lavin in an area where Ojeda

and Herrera were doing landscape work. Ojeda and Herrera testified at trial that,

after exchanging words, Lavin left the scene, but retu rned with a shotgun which he

aimed at Ojeda and threatened to kill him. Ojeda and Herrera further testified that

they continued to wor k, ignoring La vin for a period of twenty minutes while Lavin

continued his threats, all in broad daylight and in the middle of an apartment

complex. When Herrera heard police sirens, he saw Lavin leave. Ojeda then called

the police and reported the altercation.

. . .

Officer Morris, accompa nied by other officers, went to Lavin's apartment and

searched it. The apartment search, as well as a search of Lavin's vehicle, failed to

produce a shotgun. During his arrest, Lavin threatened the police officers and Ojeda.

Lavin also challenges the admission of his threats as improper use of evidence of collateral bad acts.

We agree that their admission was improper. Lavin's statements were made post-arrest, after he had

allegedly atta cked Ojeda and was tra nspor ted back to the scene of the altercation. The trial court

admitted the statements as probative of the Lavin's state of mind. Aggravated assault requires proof

of a specific intent to do violence to the person of another. See §§ 784.011, 784.021, Fla. Stat.

(1997); State v. Whi te, 324 So.2d 630, 631 (Fla.1975); State v. Shorette, 404 So.2d 816, 817 (Fla.

2d DCA 1981). But the threats here were more proba tive of Lavin's anger over his arrest than of

his guilt of the crime charged, which had occur red two hours previously. Furthermore, the witnesses

testified not only as to the threats against the victim, but as to threats against the arresting officers.

See Jervis v. State, 727 So.2d 981, 982 (Fla. 5th DC A 1999) (finding tha t the tria l court er red, albeit

harmlessly, in allowing the deputy to state that the defendant had threatened to kill him after being

11 See Letter from Appellate Counsel, Shea Moxon, Esq., to Beard’s current counsel on

this motion, dated July 3, 2002, a true and correct copy of which is attached as Appendix Item 7,

in which Mr. M oxon advised that had a timely objection been made he would have raised the

issue on direct appeal.

38

arrested. "The threats occurred after the attack on [the victim] had been concluded and thus were

not part of the criminal episode. They appear to have been the product of [the defendant 's] anger

at being arrested and possibly his having imbibed too much alcohol."); Stanley v. State, 648 So.2d

1268, 1269 (Fla. 4th DCA 1995)(reversing where "the officers test ified that appellant was belligerent

and threatened them. This testimony was irrelevant to any issue of the crimes charged and should

not have been admitted."); Singer v. State, 647 So.2d 1021 (Fla. 4th DCA 1994) (reversing

convictions for resisting a law enforcement officer without violence and obstructing an officer

without violence based on the admission of defendant's post-a rrest comment while in the back of

the officer's squad car).

Lavin v. State, 754 So.2d 784 (Fla. 3rd DCA 2000).

Clear ly under the authority of Carrillo and Lavin, as well as the cases cited therein, it was

reversib le error to admit the threatening post-a rrest statements made by Beard, a nd had a timely

objection been made by trial counsel, the issue could and would have been successfully ra ised on

direct appeal. 11

Trial Counsel Failed to Object to Improper Argument By Which Prosecutor Asserted Jury

Could Convict Defendant of Aggravated Assault Based Solely on Misdemeanor Assault

Trial counsel rendered ineffective assistance of counsel in not objecting to the State’s

improper argument concerning the relevance of the confrontation that occurred after the Defendant

exited his vehicle. The State improperly argued that the jury could find the Defendant guilty of

aggravated assault if the jury believed that the Defendant assaulted the victims after he had exited

the automobile and allegedly engaged in a verbal, threatening confrontation. See trial transcript,

pages 525-528.

The prejudice of this improper argument was that there was strong and unrebutted evidence

of the verbal confronta tion, so there is no doubt tha t the jurors wou ld have accepted the argument

39

that the Defendant assaulted the victims after he exited his automobile. The error was that this post-

driving assault was only a misdemeanor offense, and was not itself a felony assault, yet it was a rgued

by the State that this a lone was sufficient to convict the Defendant of aggravated assault. This was

clearly a misstatement of the case and law. It was ineffective assis tance of counsel to fa il to make

a timely objection. Had a timely objection been made, this er ror would have been preserved for

appeal and such an error, if properly preserved, is reversible error . Additionally, this Court cannot

be confident beyond a reasonable doubt that had this argument been objected to and a proper

curative instruction been given that the verdict would have been the same. Indeed, this Court may

have been compelled to grant a mistrial as a result of this improper a rgument had Beard’s counsel

moved for a mistr ial. This error was compounded by the failure to object during the presentat ion

of the evidence during the trial that either such evidence of the post-driving confrontation was

inadmissible, as being more prejudicial than probat ive, or in the alternative request ing a limiting

instruction be given by the Court to the jury that the evidence was being conditionally admitted for

the limited purpose of determining the Defendant’s intent at the time of the driving incident itself.

Instead it is clear that t rial counsel gave no considerat ion to the question of the admissib ility of this

evidence and instead only sought to convert it into the basis for an improper lesser included offense

of misdemeanor assault.

Failure to Request Proper Lesser Included Offense Instruction for Reckless Driving.

Trial counsel rendered ineffective assistance of counsel in not requesting a jury instruction

on the lesser included offense of reckless dr iving. Under preva iling Flor ida law Beard was entitled

to a lesser included offense instruction on the misdemeanor charge of reckless driving. Wallace v.

State, 688 So.2d 429 (Fla. 3rd DCA 1997). Instead, his counsel requested a lesser inc luded

40

instruction on assault. Trial transcript, page 462.

Assault was not a proper lesser included offense on the facts of this case, but reckless driving

was. Beard himself in one of his sta tements to the police which was introduced against him at tr ial,

admitted to driving like an a**hole. The State emphasized this sta tement - it was the first thing the

State pointed to in its opening statement. Trial transcript, page 222.

Knowing Presentation By State of Perjured Testimony by Officer Dawe Regarding Alleged

Victim Martin Anderson’s False Claim that the Defendant Brandished a Firearm Denied

Beard a Fair Trial.

Thomas Dawe was the arr esting off icer. He was dispatched to the scene of the a lleged

incident based on the following verba tim call:

Second Call

The following recording is the associated to the first call was received at about 20:30

hours. C omplainant on this second ca ll is Martin Anderson.

OFFICER: Clearwater Police.

MR. AND ERSON: Uh, is this Clearwater Police?

OFFICER : Yes, it is.

MR. ANDERSO N: Uh, we just made a complaint ab out a guy coming down the

street in a red Mustang, um, real fast.

OFFICER : Uh, huh.

MR. ANDE RSON: Now he’s coming back up and down the street showing a

weapon, you know what I’m saying, at a high reed of spade, at a high rate of speed.

OFFICER : Do you have a vehicle description, tag number or anything?

MR. ANDERSON: He’s a red, it’s a red Mustang with, I couldn’t make out the

41

last , but he lives five doors down from this house.

OFFICER: Okay, your na me sir is what p lease.

MR. ANDERSON: My name is Martin Anderson, it was my father-in-law that

called before, then the guy backed up at a high rate of speed, jumped out of the car.

OFFICER: Okay, is he a white male or a black male?

MR. ANDERSON: He’s, they, they say he’s Puerto Rican but he looks white to

me.

OFFICER: Okay, I’ll get somebody over to see you.

MR. ANDER SON : Okay, you don’t know how soon that will be as he’s coming

back ar ound.

OFFICER : Deputies will be there momentar ily.

MR. ANDE RSO N: Okay.

OFFICER: Okay.

[emphasis supplied]

When Beard was arrested no fir earm was r ecovered and it became clear that the report

Anderson made was a false police report. A report he fabricated in order to get the police to

respond after they failed to respond to the first call of mere reckless driving.

It was clear to the State tha t its “victim” had made a false police report. The State had to

decide how it would deal with that fact in front of the jury. It could confront the false sta tement

honestly and ask the jury to forgive its key witness’s lie - which would have been the right way to

deal with it - or it could try to mislead the jury. The State chose to mislead.

When Officer Dawe was called as a Sta te witness, the Assista nt State At torney presented the

42

evidence as follows:

Q Was there a time when a second call came in to that location?

A Approximately, yeah, 45 minutes after the first call. They dispatched back to the

same location reference the same wreakless (sic) vehicle. This time it was the driver

of the reckless vehicle possibly brandished a firearm.

Q And “possibly” - - - not “had” a weapon?

A Yeah. Only possibly.

Not only did Officer Dawe perjure himself, but the State then quite knowingly and

intentionally emphasized the false testimony. T he State cannot be allowed to knowingly present

perjured testimony even if the evidence is not important, but this was very important evidence which

went directly to the credibility of one of the two alleged victims.

In order to preva il on a cla im such as this, a defendant must estab lish that the prosecutor

"knowingly used perjured testimony, or failed to correct what he subsequently learned was false

testimony," and that the falsehood was material. United States v. Alzate, 47 F.3d 1103, 1110 (11th

Cir.1995) (emphasis supplied). For Giglio purposes, "the falsehood is deemed to be materia l 'if

there is any reasonable likelihood that the false testimony could have affected the judgment of the

jury.'" Id. (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342

(1976)(empha sis added)), Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999). A conviction

obtained through use of false evidence, known to be such by representatives of the prosecution, must

be set aside, Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 to 360 U.S. 264, 272, 79

S.Ct. 1173, 1179 (1959). The same result obtains when the prosecution, a lthough not soliciting false

evidence, allows it to go uncorrected when it appears. Alcorta v. State of Texas, 355 U.S. 28, 78

43

S.Ct. 103, 2 L.Ed.2d 9 (1957); United States v. LaPage, 231 F.3d 488 (9th Cir. 2000).

Due process is violated if a prosecutor permits a defendant to be tried upon an information

which he or she knows is based on perjured, material testimony without informing the court,

opposing counsel, and the jury. This policy is predicated on the belief that delibera te deception of

the court and jury by the presentation of evidence known by the prosecutor to be false "involve[s]

a corrup tion of the truth- seeking function of the trial process," United States v. Agurs, 427 U.S. 97,

104, 96 S.Ct. 2392, 49 L.E d.2d 342 (1976), and is "incompatible with 'rudimentary demands of

justice.' " Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (citation

omitted). Moreover, deliberate deception is inconsistent with any principle implicit in "any concept

of ordered liberty," Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and

with the ethical obligation of the prosecutor to respect the independent statu s of the grand jury.

Standards For Crimina l Justice §§ 3-3.5, 3-48--3-49 (2d ed.1980); United States v. Hogan, 712

F.2d 757, 759-60 (2d Cir.1983).

The Florida Constitu tion provides tha t "[n]o person shall be dep rived of life, liberty or

property without due process of law." Ar t. I, §§ 9, Fla . Const. The state violates our Cons titution

when it requires a person to stand trial and defend himself or herself against charges that it knows

are based upon perjured, ma terial evidence. Governmental misconduct that violates a defendant's

due process rights under the Florida constitution requires dismissal of criminal charges. State v.

Glosson, 462 So.2d 1082, 1085 (Fla.1985); Anderson v. State, 822 So.2d 1261, 1265 -1266 (Fla.

2002).

Beard is entitled to have his conviction vaca ted based on the prosecution’s knowing

presentation of material false testimony that misled the jury as to the credibility of the alleged victim,

44

Mar tin Anderson.

Failure to Present Exculpatory Witness.

Trial counsel r endered ineffective assistance of counsel in not conducting fur ther

investigation of the Defendant and his wife’s statement to the trial counsel prior to trial that the wife

had been a witness to the incident and could provide exculpatory testimony and tria l counsel

rendered ineffective ass istance of counsel in not presenting the wife’s testimony at trial. The wife

advised trial counsel she was prepared to testify on her husband’s behalf that she was with him

during the incident and he had not in fact driven at the two alleged victims in a manner intended to

constitute an aggravated assault. Counsel failed to pursue this offer and did not even interview the

wife concerning her proposed testimony much less present her as a witness at tria l. She is prepared

to testify at the evidentiary hearing on this motion and the Court will be una ble after considering her

testimony exculpa ting the Defendant to continue to hold confidence in the verdict in this case beyond

a reasonable doubt.

Failure to Properly Prepare for Trial and Present Exculpatory Physical Evidence - Enlarged

Photos of Scene.

Trial counsel rendered ineffective assistance of counsel in not preparing enlarged copies of

the photos of the locus in quo which would have demonstrated that the physical evidence - marks

left on the roadway - were inconsistent with the State’s theory of the case but consistent with the

defense theory of the case. marks left on the roadway - were inconsist ent with the State’s theory

of the case but consistent with the defense theory of the case.

Enlarged and enhanced photos - which the Defendant expressly requested his counsel obtain

and present at t rial - and which ar e being filed concurrently herewith, as Item 9 in the Appendix

hereto, conclusively show that certain of the marks the State argued showed the Defendant’s

12 The alleged victims testified that the Defendant’s car slid to a stop, then backed up

burning rubber, and then leaving peeled out burning rubber driving off. The enlarged photos

make clear tha t the tire marks that the state presented as the slide to the stop do not match the

marks the state argued were the peeling off marks. In addit ion the marks the state argued

showed the burning rubber in reverse are seen in enlarged photos to not even be tire marks at all.

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assaultive driving were not even tire marks a s the State claimed. Additionally, the enlarged and

enhanced exhibits, contradict the States arguments relating to the significance of certa in of the marks

and instead support Dr. Spears’ original conclusions in Report Number One.12 Had this evidence

been properly presented at tria l, this Cour t cannot have confidence beyond a reasonable doubt that

the verdict would have been the same.

Failure to Properly Cross-Examine Officer Daw e With Ev idence that Officer Falsified Police

Report.

Trial counsel rendered ineffective assistance of counsel in not properly cross-examining

Officer Dawe on his false police report. Dawe’s police report asserted that witness Zoeller had

observed Defendant Beard drive his automobile in a threatening manner at the two alleged victims.

A true and correct copy of the Dawe police report is included in the Appendix as Item 1. During

deposition, witness Zoeller denied ever seeing Defendant Beard drive in a threatening manner at the

two alleged victims and further denied ever making such statements to Officer Dawe. A true and

correct copy of the Zoeller deposition is included in the Appendix as Item 2. This conflict in the

evidence could have been used to destroy Officer Dawe’s credibility, but trial counsel refused to do

so, despite Defendant Beard’s insistent demand that he do so.

Instead, when the Sta te started to introduce Zoeller’s statement to Dawe on direct

examination (trial transcript, page 421), Grantham ob jected. He should have let the Sta te open the

door to this false sta tement. He did not, nor did he pursue the mat ter on his cross . Grantham called

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Zoeller as a defense witness, but did nothing to bring out that he had not told Dawe what Dawe

claimed he did in the police report.

Had this evidence been properly presented at tr ial, this Cour t cannot have confidence beyond

a reasonab le doubt that the verdict would have been the same.

If counsel fails to subject the prosecution's case to meaningful adversarial testing, then ther e

has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively

unreliable. No specific showing of prejudice is required, Davis v. Alaska, 415 U.S. 308, 94 S.C t.

1105, 39 L.Ed.2d 347 (1974), because the petitioner has been "denied the right of effective cross-

examination" which "would be constitutional error of the firs t magnitude and no amount of showing

of want of prejudice would cure it." Id., at 318, 94 S.Ct. 1105 (citing Smith v. Illinois, 390 U.S. 129,

131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245,

16 L.Ed.2d 314 (1966)). United States v. Cronic, 104 S.Ct. 2039 , 466 U.S. at 658-59, 104 S.Ct.

2039 (1984); Nixon v. Sing letary, 758 So.2d 618 , 622 (Fla. 2000).

Conclusion

This Court has an obligation on the facts of this case to vacate MICHAEL E. BEARD’S

convictions and sentence.

WHEREFORE, the Defendant-Petitioner, MICHAEL E . BEARD, requests this Honorable

Court grant all relief to which he may be entitled in this proceeding, including but not limited to,

setting aside his judgment and sentence. In the alterna tive, should the Court not vacate the

conviction and sentence based solely on the facial su fficiency of this motion, then MICHAEL E.

BEARD requests this honora ble Court grant discovery and set the matter for an evidentiary hearing

(See Ford v. State, 825 So.2d 358 (Fla. 2002); McLin v. State, 827 So.2d 948 (Fla. 2002)) within

13 Rule 3.850(d) mandates that the Court order a written response from the State unless

the Court summarily denies relief.

14 Form of unnotarized oath permitted under Rule 3.987, Florida Rules of Criminal

Procedure.

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a reasonable period of time after allowing prehearing discovery and after first requiring the State to

file a written response hereto pursuant to Rule 3.850(d), F lorida Rules of Cr iminal Procedure.13

Respectfu lly Submitted,

THE LAW OFFICE OF


_______________________________

William Mallory Kent

Florida Bar No. 0260738

24 North M arket Street

Suite 300

Jacksonville, Florida 32202

(904) 355-1890 Telephone

(904) 355-0602 Facsimile

[email protected]

Oath of Petitioner

Under penalties of perjury, I declare that I have read the foregoing motion and that the facts

stated in it are true.14

_______________________________

MICHAEL E. BEARD

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Certificate of Service

I HEREBY CERTIFY that a copy of the foregoing document has been delivered via U.S.

Mail, first class, postage prepaid, to: Office of the State Attorney, Circuit Court Division, Pinellas

County, 14250 49th Street North, Clearwater, Florida 33762, this ___ day of January, 2003.

_______________________________

William Mallory Kent

APPENDIX TO 3.850 PETITION OF

MICHAEL E. BEARD v. STATE OF FLORIDACRIMINAL CASE NO. CRC00-08042CFANO-A

CIRCUIT COURT, PINELLAS COUNTY, FLORIDA

ITEM 1 OFFICER DAWE’S POLICE REPORT

ITEM 2 DEPOSITION OF ZOELLER

ITEM 3 DR. SPEARS REPORT NUMBER ONE

ITEM 4 DR. SPEARS REPORT NUMBER TWO

ITEM 5 911 TAPE

ITEM 6 911 TAPE TRANSCRIPTS

ITEM 7 LETTER FROM APPELLATE COUNSEL - JULY 3, 2002

ITEM 8 LETTER FROM TRIAL COUNSEL - FEBRUARY 8, 2001

ITEM 9 ENLARGED PHOTOS

ITEM 10 TRIAL TRANSCRIPT

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT … Michael - 1-28-2003 Final Draft of 3.850...911 Tapes...

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Transcript of IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT … Michael - 1-28-2003 Final Draft of 3.850...911 Tapes...