IN THE SUPREME COURT OF FLORIDA CASE NO: SC LORAN COLE Appellant, v. STATE OF FLORIDA Appellee,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO: SC LORAN COLE Appellant, v. STATE OF FLORIDA Appellee, ON APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR MARION COUNTY INITIAL BRIEF OF APPELLANT RICHARD E. KILEY Florida Bar No Assistant CCC JAMES VIGGIANO Florida Bar No Assistant CCC ALI ANDREW SHAKOOR Florida Bar No CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, Florida (Facsimile)

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii REQUEST FOR ORAL ARGUMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 I. PROCEDURAL HISTORY... 1 II. SUMMARY OF THE ARGUMENTS... 3 ISSUE I THE LOWER COURT ERRED IN DENYING MR. COLE AN EVIDENTIARY HEARING ON HIS CLAIM THAT NEWLY DISCOVERED EVIDENCE PROVES MR. COLE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT HIS PENALTY PHASE, IN VIOLATION OF HIS FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND HIS CORRESPONDING RIGHTS UNDER THE FLORIDA CONSTITUTION CONCLUSION AND RELIEF SOUGHT CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 TABLE OF AUTHORITIES Brown v. State, 41 so.3d 116 (Fla. 2010)...11 Cole v. Florida, 523 U. S (1998)... 1 Cole v. State, 701 So.2d 845 (Fla. 1997)...1 Cole v. State, 841 So.2d 409 (Fla. 2003)... 1 Cole v. State, 895 So.2d 398 (Fla. 2004)... 2 Porter v. McCollum, 130 S.Ct. 447 (2009)... 6 Ragsdale v. State, 720 So.2d 203, 207 (Fla. 1998)... 5 iii

4 iv

5 REQUEST FOR ORAL ARGUMENT The resolution of the issues in this action will determine whether Mr. Cole lives or dies. This Court has allowed oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be appropriate in this case, given the seriousness of the claims involved and the fact that a life is at stake. Mr. Cole accordingly requests that this Court permit oral argument. STATEMENT OF THE CASE AND FACTS I. PROCEDURAL HISTORY On December 21, 1995, the trial court imposed upon Appellant a death sentence for first degree murder and life sentences for each of the remaining counts. The convictions and sentences were affirmed on direct appeal. Cole v. State, 701 So.2d 845 (Fla. 1997). The United States Supreme Court denied certiorari on march 30, Cole v. Florida, 523 U. S (1998). On June 5, 1998, Appellant filed a shell post-conviction motion. On September 27, 1999, Appellant filed an Amended Post-Conviction Motion which was denied by the circuit court. Appeal was taken and on January 16, 2003, the lower court=s order was affirmed in Cole v. State, 841 So.2d 409 (Fla. 2003). The mandate issued on April 17,

6 On September 29, 2003, Appellant filed a Motion for Post Conviction DNA Testing in state court. The motion was directed to Appellant=s actual innocence of murdering John Edwards. The motion was also directed toward the impeachment of the state=s primary witness, Pamela Edwards. The motion was denied and an appeal was taken. The court affirmed in Cole v. State, 895 So.2d 398 (Fla. 2004). The mandate issued on March 14, On May 6, 2005, Petitioner filed his habeas petition pursuant to 28 U.S.C. ' Respondent filed a Motion to Dismiss and Response to Petition for Writ of Habeas Corpus and Memorandum of Law on July 5, On May 4, 2006, the district court granted Respondent=s Motion to Dismiss and denied Petitioner=s Petition For Writ of Habeas Corpus. The district court found that the Petition was untimely and that, alternatively, all claims lacked merit. Petitioner filed an Application for Certificate of Appealability on May 25, 2007 which was denied. Petitioner appealed to the United States Court of Appeals for the Eleventh Circuit and filed a Renewed Application for Certificate of Appealability. In a one page Order, the Renewed Application for Certificate of Appealability was denied as a mandate on July 31, A Motion for Reconsideration was filed on August 13, 2007 which was denied on September 7, On October 25, 2007 a Petition for Writ of Certiorari was filed with the United States Supreme Court. The Court 2

7 denied that petition on January 7, On September 7, 2010, Defendant filed a Successive Motion for Post Conviction Relief. On March 10, 2011, the circuit court denied said Successive Motion for Post Conviction Relief. This appeal follows. SUMMARY OF THE ARGUMENT The lower court erred in denying Mr. Cole an evidentiary hearing on his newly discovered evidence claim. The documented abuses at the Dozier School which were included in Mr. Cole=s motion were unknown to trial counsel and everyone else outside of the Dozier School. Once other abuse victims came forward in an newspaper article Mr. Cole=s repressed memories of abuse surfaced. Victims were searched for, therapists were interviewed, formal verification of Cole=s attendance at the Dozier school was obtained and Mr. Cole was examined by a psychiatrist. This claim was developed in a timely manner and an evidentiary hearing should have been granted. 3

8 ISSUE I THE LOWER COURT ERRED IN DENYING MR. COLE AN EVIDENTIARY HEARING ON HIS CLAIM THAT NEWLY DISCOVERED EVIDENCE PROVES MR. COLE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT HIS PENALTY PHASE, VIOLATING HIS FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND HIS CORRESPONDING RIGHTS UNDER THE FLORIDA CONSTITUTION. The lower court should have granted Mr. Cole an evidentiary hearing. Mr. Cole raised this claim based on newly discovered evidence in his postconviction successive motion in the Fifth Judicial Circuit. The circuit court denied Mr. Cole an evidentiary hearing. The circuit court erred in denying Mr. Cole a hearing. This Court in Robinson v. State, 913 So.2d 514 (Fla. 2005) held that: A[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.@ Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000). A[W]here the motion lacks sufficient factual allegations, or where alleged facts do not render the judgment vulnerable to collateral attack, the motion may be summarily denied.@ Ragsdale v. State, 720 So.2d 203, 207 (Fla. 1998). (citing Steinhorst v. State, 498 4

9 So.2d 414 Fla. 1986)). However, in cases where there has been no evidentiary hearing, this Court must accept Athe defendant=s factual allegations to the extent that they are not refuted by the Peede v. State, 748 So.2d 253, 257 (Fla. 1999). In other words, this Court Amust examine each claim to determine whether or not the claim is refuted by the Atwater v. State, 788 So.2d 223, 229 (Fla. 2001). Id. at 520. It cannot be conclusively shown that Mr. Cole is entitled to no relief nor can it be said that Mr. Cole=s petition is legally insufficient. Furthermore, this Court has Aencouraged trial courts to hold evidentiary hearings on postconviction Ragsdale v. State, 720 So.2d 203, 207 (Fla. 1998). The lower court should not have denied Mr. Cole an evidentiary hearing on his newly discovered evidence claim for the reasons stated below. Newly discovered evidence proves Mr. Cole did not receive effective assistance of counsel throughout his penalty phase, violating his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution, and his corresponding rights under the Florida Constitution. From June 1, 1984 through November 14, 1984, Loran Cole was an inmate at the Arthur G. Dozier School in Marianna, Florida. The young juveniles that stayed at that facility have become known as A The White House Boys.@ While incarcerated on Death Row, Loran Cole recently watched a PBS News program about the Dozier School, and it brought back a flood of suppressed memories. These suppressed memories of abuse at the Dozier school also triggered suppressed 5

10 memories of childhood abuse. Loran Cole was abused by several of Anne Cole=s (Loran=s mother) boyfriends who watched the Cole children while Anne Cole was in prison. Said abuse consisted of Loran being kept in a 55 gallon drum while one of the boyfriends molested Loran=s older sisters. Also, Loran was often kept chained in the basement of the farmhouse where he grew up while one of the boyfriends molested Loran=s older sister. At age 12, Loran suffered a savage beating when he escaped from his chains and attempted to aid his sister during a molestation session. In Mr. Cole=s trial, only the limited testimony of lay witnesses and the weak testimony of Dr. Berland was presented. Dr. Berland diagnosed Mr. Cole as having some signs of brain damage and psychosis that are exasperated by the use of drugs and alcohol. (FSC ROA Vol. XVI p ). Had Dr. Berland been aware of the PTSD regarding the Dozier school and the repressed childhood abuse, statutory mental mitigation and non-statutory mental mitigation would have been established pursuant to Porter v. McCollum, 130 S.Ct. 447 (2009). Loran Cole=s status as a White House Boy was confirmed on September 16, (ROA Vol. I p ). Dozier was founded in 1900 as a reform school for troubled boys. In the decades since, it has become quite notorious as a facility that fostered such evils as racism, rape, and other various forms of abuse, both mental and physical. In order to get an idea of what the victims of this facility went through, the defendant 6

11 urges this Court to visit thewhitehouseboys.com online. Countless stories of survivors like Loran Cole can demonstrate to this Court what a horrible experience life was like at Dozier. Mr. Cole was at Dozier from June 1, 1984 until November 14, Had an evidentiary hearing been granted by the lower court, Mr. Cole would have testified that during that brief period of time, he witnessed rapes and beatings. He himself, was subjected to torturous treatment. Mr. Cole estimates that he was subjected to beatings 2 to 3 times a week. Some beatings were for reasons like stealing food, trying to run away, and for such trivialities like walking on the wrong side of the sidewalk. Regarding the most heinous episodes, Mr. Cole could have testified about how he was anally raped by a guard named D.J. Pittman, and by a dog handled by a guard named Randy. Mr. Cole=s wife Colleen Kucler, could have testified about the bruises she saw on his back and behind shortly after his stint in Dozier. Another witness willing to testify had Mr. Cole been granted an evidentiary hearing is a man by the name of Danny Morris. Mr. Morris was at Dozier for eleven month in During that time, Mr. Morris was beaten by guards, placed in solitary confinement for two weeks at a time, and sexually assaulted by guards. The trauma from that experience has caused Mr. Morris to have numerous arrests for crimes involving drugs and violence. 7

12 After an exhaustive search, counsel for Mr. Cole was unable to find men who were at Dozier at the same time as Mr. Cole. However, besides Mr. Morris= 1982 experience, the article from St. Petersburg Times writers Ben Montgomery and Waverly Ann Moore enlightens this Court about some of the horrors that went on at Dozier a few years after Mr. Cole=s Release. (ROA Vol. I p ). Loran Cole=s post 1984 criminal record also goes to show the effect that life in Dozier had on his psyche. That horrible place helped create the Loran Cole who sits on death row today. Union Correctional Institute=s mental health professional, Jennifer Sagle, has been treating Mr. Cole for many years. Had an evidentiary hearing been granted by the lower court, Jennifer Sagle would have testified about Mr. Cole=s depression, anxiety, and Post Traumatic Stress Disorder (PTSD) - which she diagnosed. The diagnosis followed the fact that Jennifer Sagle was the first mental health professional Mr. Cole confided in after his suppressed Dozier memories came to light. Jennifer Sagle is prepared to testify about how PTSD works. Sagle is prepared to testify about Mr. Cole=s suppressed memories regarding Dozier and, as the memories persisted, Mr. Cole=s suppressed memories of his childhood abuse also surfaced as a result of the PTSD regarding his experiences at the Dozier school. Dr. Michael Maher has met and evaluated Mr. Cole. If granted an 8

13 evidentiary hearing, Dr. Maher is prepared to testify how PTSD works and how it probably affected Mr. Cole at the time of the murder itself. Dr. Maher is also prepared to testify about Mr. Cole=s post-dozier mental state and how the establishment of PTSD would have firmly established both statutory and non-statutory mitigation. The establishment of statutory and non-statutory mental mitigation would have spared Mr. Cole=s life. The lower court in its order held: The Defendant=s motion alleges that his trial counsel was ineffective for failing to present to present evidence that the Defendant was an inmate at Dozier School for Boys. To qualify as an exception to the one year time limit Athe facts on which the claim is predicated were unknown to the movant or the movant=s attorney and could not have been ascertained by the exercise of due Fla. R. Crim. P (d)(2)(a). On page 8 of the pre-sentence investigation (APSI@) document, under AEducational History@ the following is written: AThe defendant advised that he received his GED in 1986 at the Arthur G. Dozier School for Boys in Marianna, Florida. The defendant=s mother confirmed this information stating that he received a GED during his incarceration in the Florida Department of Corrections.@ PSI, p. 8. Therefore the Defendant/movant knew that he had attended the Dozier School for boys and even expressed this fact to the Correctional Probation Specialist that prepared the PSI. The Defendant=s attorney at each level of this case, both trial and appellate, either knew or could have this information with due diligence. At the November 28, 1995 Sentencing hearing, the Defendant=s trial counsel stated on the record that he discussed the PSI 9

14 with the Defendant at least twice and that they did not have any corrections as to the substance of it. Sentencing Hearing, p The PSI was included in the record on direct appeal. Appellate counsel could have accessed the information in the PSI with due diligence. This claim is alleged more than a decade after the judgment and sentences became final and does not qualify for an exception to the one year limit. This motion is time barred. ( ROA Vol. I p. 157). That was error. The quotation from the PSI, relied upon by the lower court, was a misapprehension of fact. Mr. Cole did not receive a GED from Dozier in The contention that he did receive a GED in 1986 is the product of the self-reporting of a defendant having some signs of brain damage and psychosis that are exasperated by the use of drugs and alcohol. (FSC ROA Vol. XVI p ). The newly discovered evidence was the confirmation that Mr. Cole was at Dozier from June 1, 1984 until November 14, 1984, which was confirmed on September 16, (ROA Vol. I p ). The alleged confirmation by Cole=s mother, that Mr. Cole received a GED while in the Department of Corrections is in no way confirmation of his stay in Dozier; rather it is proof of Cole=s commitment to the Department of Corrections as an adult. (ROA Vol. I p. 132). The fact that trial counsel may have known that Mr. Cole was incarcerated at Dozier; be it in 1986 or 1984 was a red herring which distracted the lower court from the issue at bar. Until the article by Ben Montgomery and Waveney Ann Moore was 10

15 written, (ROA Vol. I p ), no one outside of Dozier knew of the extent of the systematic abuse which transpired there. Mr. Cole=s memories were suppressed as a result of PTSD. Once it was confirmed exactly when Cole was incarcerated at the Dozier School, (ROA Vol. I p ), therapist Jennifer Sagle was interviewed, records were obtained from UCI, attempts were made to find members of AThe White House Boys@ and finally, Mr. Cole was examined by Dr. Maher to establish the fact that Mr. Cole was not malingering. Due diligence in the development of this claim was exercised. Relief is proper and an evidentiary hearing to fully develop this claim is the remedy. In its order the lower court held: The issue raised in this motion is also procedurally barred. The Defendant has filed multiple postconviction motions prior to the instant motion. Because the Anewly discovered evidence@ alleged in this motion was actually known by the Defendant, readily accessible to trial counsel, and included in the record, it fails to qualify as newly discovered and therefore could have been litigated in the prior proceedings. Therefore, this issue is procedurally barred. See Brown v. State, 41 So.3d 116 (Fla. 2010); Marek v. State, 14So.3d 985, 999 (Fla. 2009). Furthermore, this claim is refuted by the record. Claims in successive motions may be denied without an evidentiary hearing A[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.@ Rule (f)(5)(b), Fla. R. Crim. P.; Schwab v. State, 969 So.2d 318, 325 (Fla. 2007); White v. State, 964 So.2d 1278 (Fla. 2007). Because the Defendant=s 11

16 attendance at the Dozier School for Boys was known by the Defendant and trial counsel and with the exercise of due diligence could have been known by collateral counsel, this claim is without merit. (ROA Vol. I p ). This was error. The lower court=s reliance on Brown v. State, 41 so.3d 116 (Fla. 2010) is misplaced. In Brown, the Court held: After a complete review of the record in this case, and applicable precedent, we conclude, as the circuit court concluded, that the evidence which Brown claims as newly discovered was known, or with due diligence could have been known, by Brown=s counsel at the time of the initial postconviction proceeding. The evidentiary hearing was held in the initial postconviction proceeding in 2001 and the case was final in 2003 when this Court affirmed denial of postconviction relief in that proceeding. See Brown 846 So.2d at The record demonstrates that at that time, postconviction counsel was aware that the witness who testified under the name McGuire had used numerous aliases and that he was an escapee from an Ohio sentence imposed for a felony conviction he received under the name of Keenum. Id. at117. In Brown, postconviction counsel knew that McGuire had used numerous aliases and that he was an escapee from Ohio. In Mr. Cole=s case, no one knew of the abuses at the Dozier school until witnesses came forward. At the Case Management Conference, the following testimony took place: MR. SHAKOOR: Your Honor, last year, in 2009, Mr.Cole, the Defendant, watched a program on television where he saw some horrific details about called the Dozier 12

17 School B or a place called the Dozier School for Boys and he had some suppressed memories that came back based on the abuse that he suffered there. He subsequently notified the Union Correctional Institution mental health expert, Jennifer Sagle, and she met with him on a semi-continuous basis and diagnosed him with post-traumatic stress syndrome. Upon hearing about that, Your Honor, Mr.Cole informed us of what was going on in his life on one of our attorney visits, told us about what happened, told us that he was seeing Ms. Sagle. So we wanted to verify that he was at the Dozier School for Boys, so we did that by the use of our investigators. We verified that he was there. We also did some research on the Dozier School for Boys. We found out about these decades of horrific abuse that went on there. So our next goal was to verify that he was there during the time of the continuous abuse. What we found out was he was there from B I believe I typed in the motion January to September of I=m sorry; June till September of So he was there for about a five-to-six-month period. We couldn=t find anybody that was there with him during the course of this abuse, but we are aware of verifying that abuse happened within a two-year period of him being there and, also, as we attached to our motion, various newspaper articles indicating that abuse happened after he was there. So, Your Honor, it doesn=t take much to assume that abuse was also happening while he was there. So Mr. Cole is willing to testify about the abuse that he suffered. We have Union Correctional Institution mental health expert Jennifer Sagle who is willing to testify about diagnosing Mr. Cole with post-traumatic stress disorder. And, Your Honor, as I said, back on September 16 th of this current year, a couple of months ago, we verified that Mr. Cole was at the Dozier School for Boys during this abuse. And that=s why we attached to the back of our motion the documentation showing that he was actually 13

18 placed B THE COURT; Well, he didn=t disclose this to his attorneys? MR. SHAKOOR: Excuse me? THE COURT: He did not disclose this to his lawyers during the trial? MR.SHAKOOR: Your Honor, no. It=s our position that he=s been suppressing his memories. And Jennifer Sagle would testify to that. Your Honor, the State, in their response, mentioned that Mr.Cole and his attorney should have been on notice that he was at Dozier due to a 1986 GED that he said he received there. The documentation that we have wouldn=t support that, because we have attached proof that he was actually there in So the 1986 thing that Mr. Cole said to his attorney was inaccurate. And, also, Your Honor, his attorney was unable to verify any abuse that happened at Dozier because he didn=t know about it; he didn=t know about the rapes, the psychological abuse, the dog rape that Mr. Cole suffered. He didn=t know about any of that. So that=s why we=re B THE COURT: Well, if it was suppressed, is it your position you can go back B it should have been presented to the jury, even though he B I mean, it was suppressed in his mind? MR. SHAKOOR: Actually, we=re arguing now it=s just newly discovered evidence. This is evidence that came to light this past year within B so we filed our motion within one year of verifying from Mr. Cole that he was at this place. (ROA Vol. III CMC transcript p. 8-11). The stated year of attendance (1986) was an error. The verification that Mr. Cole attended Dozier in 1984 was newly discovered evidence. The fact that Mr. Cole=s attorney was aware that Cole attended the Dozier school (although he was mistaken 14

19 as to when Cole attended) is distinguishable from Brown in that no one knew of the abuse that occurred at the Dozier school. If Mr. Cole had not seen the PBS program on the White House Boys and had he not been diagnosed and treated by Jennifer Sagle; his memories of the horrific abuse that he suffered would have been suppressed forever. An evidentiary hearing required to fully develop this issue. The lower court erred in not granting one. Relief is proper. held: In Schwab v. State, 969 So.2d 318 (Fla. 2007), the Florida Supreme Court We affirm the circuit court=s holding that Schwab=s claim regarding neurological impairment is procedurally barred because it could have been raised in Schwab=s initial postconviction proceeding. The record reveals that Schwab repeatedly alleged that he suffers from brain damage in his initial postconviction motion. The trial court granted Schwab an evidentiary hearing on the claims that included brain damage allegations, and Schwab presented no evidence regarding his brain damage. Schwab had an opportunity to pursue this topic as potential mitigation and failed to do so. Thus, he is now procedurally barred from doing so. Id. at 325. In Mr. Cole=s case, his initial post-conviction motion makes no mention of AThe White House PTSD, Jennifer Sagle or Dr. Maher. It is not mentioned in his initial post-conviction motion because it is newly discovered evidence. Once Mr. Cole=s suppressed memories of the horrific abuse that he suffered at Dozier; 15

20 postconviction counsel promptly investigated the claim by verifying that Cole attended the Dozier school, interviewing his therapist, (Jennifer Sagle) attempting to find former victims of the abuse at Dozier School and by having Mr. Cole examined by a psychiatrist. Schwab is distinguishable from Mr. Cole=s case and therefore does not apply. An evidentiary hearing should be granted by this Court as relief is proper. Legal argument In Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000), the following rephrased certified question was addressed by the Court: WHERE A PLAINTIFF IN A TORT ACTION BASED ON CHILDHOOD SEXUAL ABUSE ALLEGES THAT SHE SUFFERED FROM TRAUMATIC AMNESIA CAUSED BY THE ABUSE, DOES THE DELAYED DISCOVERY DOCTRINE POSTPONE ACCRUAL OF THE CAUSE OF ACTION? We answer the rephrased question in the affirmative and reverse the district court=s decision. Id. at In answering this question the Florida Supreme Court relied on the dissent of J. Jorgenson, in Lindabury v. Lindabury, 552 So.2d It is cited in Hearndon, thusly: 552 So.2d at 1118 (Jorgenson, J., dissenting). Nevertheless, we recognize that the acceptance of theories supporting memory loss of childhood sexual abuse is a disputed area of psychological study. It is debated whether such memory loss actually occurs or whether plaintiffs are coached into believing that such abuse 16

21 occurred by suggestions posed by psychologists. For example, one law journal article advocated the application of the delayed discovery doctrine in the case of childhood sexual abuse based on the view that: The classic psychological responses to incest trauma are numbing, denial, and amnesia. During the assaults the incest victim typically learns to shut off pain by achieving Aaltered states of consciousness...as if looking on from a distance at the child suffering the abuse.@ To the extent that this defense mechanism is insufficient, the victim may partially or fully repress her memory of the assaults and the suffering associated with them: AMany, if not most, survivors of child sexual abuse develop amnesia that is so complete that they simply do not remember that they were abused at all; or...they minimize or deny the effects of the abuse so completely that they cannot associate it with any later consequences.@ Many victims of incest abuse exhibit signs of Post-Traumatic Stress Disorder (PTSD@), a condition characterized by avoidance and denial that is associated with survivors of acute traumatic events such as prisoners of war and concentration camp victims. Like others suffering from PTSD incest victims frequently experience flashbacks and nightmares well into their adulthood. Id. at If granted an evidentiary hearing by this Court, Jennifer Sagle is prepared to testify that Mr. Cole experienced many of the adverse effects of sexual abuse detailed above. The Hearndon Court went on to hold: Reasons in favor of application of the doctrine in the case of childhood sexual abuse are as follows, First it is widely recognized that the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats for secrecy, may lead a child to 17

22 deny or suppress such abuse from his or her consciousness. See Ault, 637 N.E.2d at 872 (citing Evans, 265 Cal.Rptr. At 606, 608). Second, the doctrine is well established when applied, for example, in cases involving breach of implied warranty or medical malpractice.; it would seem patently unfair to deny its use to victims of a uniquely sinister form of abuse. Accordingly, application of the delayed discovery doctrine to childhood sexual abuse claims is fair given the nature of the alleged tortious conduct and its effect on victims, and is consistent with our application of the doctrine to tort cases generally; thus, we hold that the doctrine is applicable to childhood sexual abuse cases. Id. at Mr. Cole=s experiences at the Dozier School are clearly indicative of childhood sexual abuse. His subsequent conduct of denial of the effects of the abuse, flashbacks and nightmares are exactly the kind of conduct addressed in Hearndon. An evidentiary hearing should have been granted by the lower court to fully develop this claim. Ultimately, the Hearndon Court went on to hold: We therefore hold that the delayed discovery doctrine applies to the accrual of the instant cause of action based on a claim of childhood sexual abuse accompanied by traumatic amnesia-keeping in mind that by our decision petitioner survives respondent=s motion to dismiss. However, our decision does not pass on the factual development of the issue that will be addressed at trial. We hereby answer the rephrased certified question in the affirmative, quash the district court=s decision below, and remand the case for proceedings consistent with this 18

23 opinion. Id. at Mr. Cole is not asking this Court to pass on the factual development of the issue. He is asking this Court to grant an evidentiary hearing so the factual issue can be fully developed. Paula Jean Hearndon was allowed by this Court to bring an action in tort for alleged sexual abuse which she suffered (and repressed) at the hands of her stepfather. This Court recognized the traumatic amnesia she suffered as a result of sexual abuse. Loran Cole seeks that the doctrine of delayed discovery be applied in his efforts to establish mitigation in a capital case. The fact that Paula Jean Hearndon was suing a human being in tort pales against the fact that Loran Cole was cruelly sexually abused by a dog and was similarly traumatized. Relief is proper and an evidentiary hearing should be granted by this Court. CONCLUSION AND RELIEF SOUGHT Wherefore, in light of the facts and arguments presented above; Mr. Cole moves this Honorable Court to: 1. Grant Mr. Cole an opportunity for oral argument. 2. Remand the proceeding to circuit court for an evidentiary hearing. 19

24 Respectfully submitted, Richard E. Kiley Florida Bar No Assistant CCC JAMES VIGGIANO Florida Bar No Assistant CCC Ali A. Shakoor Florida Bar No Assistant CCC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Drive Suite 210 Tampa, Florida (813) Counsels for Appellant 20

25 CERTIFICATE OF SERVICE HEREBY CERTIFY that a true copy of the foregoing Initial Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on this 24 th, day of August, RICHARD E. KILEY Florida Bar No Assistant CCC JAMES VIGGIANO Florida Bar No Assistant CCC ALI ANDREW SHAKOOR Florida Bar No CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, Florida (Facsimile) 21

26 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that a true copy of the foregoing Initial Brief, was generated in a Times New Roman 14 point font, pursuant to Fla. R. App. P RICHARD E. KILEY Florida Bar No Assistant CCC JAMES VIGGIANO Florida Bar No Assistant CCC ALI ANDREW SHAKOOR Florida Bar No CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, Florida (Facsimile) 22

27 Copies to: Barbara C. Davis Assistant Attorney General 444 Seabreeze Boulevard 5 th Floor Daytona Beach, FL Loran Cole DOC # Union Correctional Institution 7819 NW 228 th Street Raiford, Florida