IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC05-246

Transcription

1 IN THE SUPREME COURT OF FLORIDA OLEN CLAY GORBY, Appellant, v. CASE NO. SC STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, STATE OF FLORIDA ANSWER BRIEF OF THE APPELLEE CHARLES J. CRIST, JR. ATTORNEY GENERAL MEREDITH CHARBULA Assistant Attorney General Florida Bar No DEPARTMENT OF LEGAL AFFAIRS PL-01, The Capitol Tallahassee, Florida (850) , Ext (850) (Fax) COUNSEL FOR APPELLEE

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENT ARGUMENT WHETHER THE TRIAL JUDGE ERRED IN DENYING GORBY S SECOND SUCCESSIVE MOTION FOR POST-CONVICTION RELIEF... 7 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

3 TABLE OF AUTHORITIES Beard v. Banks, 125 S. Ct. 2504, 2514 (2004)..16 Bintz v. Bertrand, 403 F.3d 859, (7 th Cir. 2005)16 Bocketing v. Bayer, 399 F.3d 1010 (9 th Cir. 2005)..16 Bousley v. United States, 523 U.S. 614, (1998) Brown v. Uphoff, 381 f.3d 1219, (10 th Cir. 2004) Carawan v. State, 515 So.2d 161 (Fla. 1987) Coy v. Iowa, 487 U.S (1988)... 9 Crawford v. Washington, 124 S. Ct (2004)... passim Dixon v. State, 730 So.2d 265, 268 (Fla. 1999)... 8,9 Dorchy v. Jones, 398 F.3d 783, 788 (6 th Cir. 2005) Espinosa v. Florida, 505 U.S (1992)...10 Evans v. Luebbers, 371 F.3d 438, 444 (8 th Cir. 2004)...16 Ferguson v. State, 789 So.2d 306, 311 (Fla. 2001) 14 ii

4 Finney v. State, 831 So.2d 651, 657 (Fla. 2003) 10 Gonzalez v. State, 786 So.2d 559, (Fla. 2001) Gonzalez v. State, 700 So.2d 1217, 1219 (Fla. 1997)...12 Gorby v. Florida, 513 U.S. 828 (1994)... 8 Gorby v. State, 630 So.2d 544 (Fla. 1993)... passim Gorby v. State, 819 So.2d 664, 686 (Fla. 2001) McGonagle v. United States, 2005 U.S. App. Lexis (1 st Cir. July 8, 2005) Mungo v. Duncan, 393 F.3d 327, (2d Cir. 2004) New v. State, 807 So.2d 52 (Fla. 2001) Ohio v. Roberts, 448 U.S. 56 (1980) Ray v. State, 403 So.2d 956, 960 (Fla. 1981)... 9 Rodriguez v. State, 30 Fla. L. Weekly S 385 (Fla. May 26, 2005)(same) Rodriguez v. State, 753 So.2d 29, (Fla. 2000) Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004) State v. Glenn, iii

5 558 So.2d 4, 8 (Fla. 1990) Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) Teague v. Lane, 489 U.S. 288 (1989) Turner v. Dugger, 614 So.2d 1075, 1078 (Fla. 1992) Walton v. State, 847 So.2d 438, 445 (Fla. 2003) Witt v. State, 387 So.2d 922 (Fla. 1980) iv

6 PREELIMINARY STATEMENT Appellant, Olen Clay Gorby, appeals the denial of his second successive motion for post-conviction relief filed in the Circuit Court of the Fourteenth Judicial Circuit, Bay County, Florida. References to appellant will be to or and references to appellee will be to Athe or The record on appeal in the instant case will be referenced as followed by the appropriate volume and page number. The record from the appeal of Gorby=s first successive motion for post-conviction relief will be referenced at followed by the appropriate volume and page number. The record on appeal from the denial of Gorby=s initial motion for post-conviction relief will be referenced as followed by the appropriate volume and page number. Gorby s petition for writ of habeas corpus filed in this Court on February 28, 2000 will be referenced as Pet. followed by the appropriate page number. The record on appeal from Gorby=s direct appeal, Case Number 79,308, will be referenced as TR followed by the appropriate volume and page number. References to Gorby=s initial brief in this case shall be IB followed by the appropriate page number. 1

7 STATEMENT OF THE CASE Gorby appeals the trial court=s January 3, 2005, denial of his second successive motion for post-conviction relief. (2SPCR Vol. I page 51-53). The State generally accepts Gorby=s statement of the procedural history of this case. STATEMENT OF THE FACTS The relevant facts surrounding the May 1990 murder of W.J. Raborn are recited in this Court=s opinion on direct appeal:... Gorby was paroled from a Texas prison on April 11, Later that month he met Robert Jackson, who offered him a ride to Tennessee. At trial Jackson testified that, after a couple of days in Tennessee, they drove to Panama City, Florida. The two men had a falling out, and Jackson went back to Tennessee. He returned to Panama City on Sunday, May 6, and checked into a homeless shelter. During a church service at the shelter that evening, Gorby came in and thanked everyone for the help they had given him and then left. The victim, who was crippled from polio, occasionally picked up people from the shelter to do odd jobs around his home. Two witnesses testified that they saw Gorby with the victim on May 6. The next day the victim's neighbor saw a note on the door of his house trailer. The note, saying he would return on Tuesday, aroused her suspicions, and, on entering the trailer, she found the victim dead of head injuries. A handwriting expert testified that Gorby, not the victim, wrote the note, and Gorby's fingerprint was found on a jar in the victim's kitchen. Receipts 2

8 tracked the victim's credit cards through Louisiana and Texas. On May 8, 1990 Gorby arrived at his friend Allan Brown's home in San Antonio, Texas, driving the victim's car. Brown and his wife saw Gorby replace the car's Florida license plate with Louisiana plates. Gorby told them that he had killed someone and stolen the car and some credit cards. Several days later Gorby sold the car to Cleo Callaway. A BOLO had been issued for the car because of its connection with a homicide, and on June 19 the police found the car and arrested Callaway. San Antonio police arrested Gorby several days later, and he was extradited to Florida. Gorby made a statement acknowledging that he knew the victim, but claiming that Jackson killed the victim and stole his car and credit cards. Gorby v. State, 630 So.2d 544 (Fla. 1993). Gorby was convicted of first degree murder, grand theft auto, burglary with a battery, and robbery. During the penalty phase, the State sought to introduce a 1987 Texas conviction for robbery by threat, a violent felony in the State of Texas. Gorby was convicted of this Texas robbery using the alias of Freddie Banks. Gorby v. State, 630 So.2d 544, 547 n.4 (Fla. 1993). In order to demonstrate Gorby and Banks was the same person and to demonstrate Gorby had previously been convicted of this qualifying prior violent felony, the State proffered testimony from a captain from the Bay County Sheriff's Office. Before the trial judge alone, outside the presence of the jury, the State called Captain McKeithan to the stand. 3

9 Trial counsel objected to Captain McKeithan s testimony on hearsay grounds. He posed no objection on the grounds that admission of this testimony would violate Gorby's right of confrontation. (TR Vol. XI 1755). Trial counsel also objected to the judgment of conviction, itself, on the grounds it was more prejudicial than probative because the conviction showed Gorby used an alias. Like for the testimony of Captain McKeithan, Gorby offered no objection to the judgment of conviction itself on the grounds it violated his rights of confrontation. (TR Vol. XI 1758). Captain McKeithan testified he reviewed Olen Gorby's criminal history which included records from the Texas Department of Corrections and a booking sheet from Bay County, Florida to determine whether Gorby used the alias Freddy Banks. Captain McKeithan told the court Gorby used the alias of Freddie Banks in both Texas and in Florida. (TR Vol. XI ). During cross-examination, Captain McKeithan acknowledged there could be another person in Texas named Freddie Banks. (TR Vol. XI 1757). The trial judge found the State had proven that Freddie Banks and Olen Gorby were the same person and admitted the Texas judgment of conviction at the penalty phase of Gorby's trial. 4

10 (TR Vol. XI 1758). The court instructed the jury the name shown on the record of conviction as Freddie Banks (State's Exhibit 2) was Olen Clay Gorby. (TR Vol. XI 1761). At the conclusion of the penalty phase, the jury recommended Gorby be sentenced to death by a vote of 9-3. (TR Vol. XV 2546). The court found the following aggravators had been established: (1) the murder was committed while under sentence of imprisonment; (2) prior conviction of violent felony; (3) the murder was committed for pecuniary gain; and 4) the murder was especially heinous, atrocious, or cruel. (TR Vol. XV ). The Court found no statutory mitigators but found several non-statutory mitigators had been established, including that Gorby s family loved him, he came from a poor background, and had an abusive father and a failed marriage. Additionally, the trial judge found that, at the time of the murder, Gorby was under mental or emotional disturbance and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. The trial judge found, however, the evidence did not establish that Gorby was under an extreme mental or emotional disturbance at the time of the murder or that his capacity to appreciate the criminality 5

11 of his conduct or to conform his conduct to the requirements of law was substantially impaired. (TR Vol. XV ). After what this Court described as Aconscientious the trial judge found the aggravators outweighed the mitigators, followed the jury=s recommendation, and sentenced Gorby to death. Gorby v. State, 630 So.2d 544, 547 (Fla. 1993). Gorby raised thirteen issues on direct appeal including a variation of the claim he now presents to this Court. Before this Court on direct appeal, Gorby claimed the trial court erred in deciding that Olen Gorby and Freddie Banks was the same person. This Court ruled that: Regarding the identity issue, the state proffered the testimony of a captain from the Bay County Sheriff's Office that detailed his examination of Gorby's Texas criminal records. That examination established that Freddie Banks was in fact Olen Gorby and that Banks' conviction was for a violent felony. After the proffer, the court held that the state had shown identity and the nature of the felony and instructed the jury that Banks and Gorby was the same person. The state proved the existence of the prior felony aggravator beyond a reasonable doubt, and Gorby has shown no error in the court's handling of this issue. Gorby v. State, 630 So.2d 544, 548(Fla. 1993). 6

12 This Court rejected each of Gorby=s other twelve claims and unanimously affirmed Gorby=s conviction and sentence to death. 1 SUMMARY OF THE ARGUMENT The trial court correctly concluded Gorby=s claim was time barred. Gorby filed his second successive motion more than one year after his conviction and sentence became final and failed to establish any exception to the one-year limitations period provided for in Rule 3.851(d)(2), Florida Rules of Criminal Procedure. 1 On appeal, Gorby raised the following issues before this Court: (1) The court erred in denying Gorby=s motion for a continuance; (2) the trial judge erred in denying Gorby=s motion to exclude a witness=s in-court identification; (3) the court erred in failing to ensure Gorby was represented by conflict free counsel; (4) the court erred in allowing the State to bolster the credibility of a state witness; (5) the court erred in denying Gorby=s motion for mistrial when the State commented that Gorby had showed no remorse for the murder; (6) the court erred in allowing evidence of Gorby=s recent release from prison; (7) the court erred in denying Gorby=s motion for mistrial after a witness testified Gorby attacked him; (8) the court erred in admitting a gruesome and prejudicial videotape and numerous photographs of the victim=s body; (9) the court erred in requiring Gorby to display his tattoos to a witness in front of the jury; (10) the trial judge erred in concluding, as a matter of law, that Gorby was the person referred to as Freddie Banks in a Texas judgment of conviction for robbery; (11) the trial court erred in instructing the jury and finding the murder was especially heinous, atrocious, or cruel; (12) the HAC instruction inadequately defines what conduct it intends to punish; (13) the trial judge erred in denying Gorby=s request that the jury be instructed on the sentences he faced for the crimes for which he was contemporaneously convicted. 7

13 Gorby=s claim pursuant to Crawford v. Washington, 124 S.Ct (2004) is procedurally barred as a variation of this claim was raised on direct appeal and decided adversely to Gorby. Additionally, Gorby failed to preserve this error as he made no objection to Captain McKeithan=s testimony on the grounds it violated his rights of Confrontation under the Sixth Amendment to the United States Constitution. Further, Crawford has no retroactive application to Gorby=s judgment and conviction, already final some ten years before Crawford was decided. Finally, Gorby=s Crawford claim fails on the merits because none of the testimony about which Gorby complained constituted a violation of the United States Supreme Court=s ruling in Crawford v. Washington. ARGUMENT WHETHER THE TRIAL JUDGE ERRED IN DENYING GORBY=S SECOND SUCCESSIVE MOTION FOR POST-CONVICTION RELIEF. In his second successive motion for post-conviction relief, Gorby alleged the State violated the dictates of Crawford in two ways: (1) Introducing a record of a Texas robbery conviction of Freddie Banks. (2) Introducing the testimony of Frank McKeithan, a Bay County Deputy Sheriff, who testified that a review of Gorby's 8

14 criminal history revealed he used the alias Freddie Banks. This testimony was used to establish it was indeed Olen Gorby who had been convicted of robbery in Texas under the alias of Freddie Banks. A. GORBY=S CLAIM IS TIME BARRED On October 3, 1994, when the United States Supreme Court denied Gorby s petition for a writ of certiorari, Gorby s conviction became final. Gorby v. Florida, 513 U.S. 828 (1994). 2Gorby filed his second successive motion on October 26, Rule 3.851(d), Florida Rules of Criminal Procedure, requires any motion to vacate judgment of conviction and sentence be filed within one year after the judgment and sentence become final. The rule provides for an exception to this one year time limit, if the fundamental constitutional right asserted was not established within one year from the date the conviction becomes final and this right has been held to apply retroactively.3 At 2 Rule 3.851(d)(1)(A), Florida Rules of Criminal Procedure. 3 If both of these criteria are met, a defendant would ordinarily have one year from any announced fundamental change in law to file a successive motion. This time period begins to run from the date the Florida Supreme Court announces the new rule may be retroactively applied to final convictions rather than the date of the initial decision announcing the change of law. Dixon v. State, 730 So.2d 265, (Fla. 1999). This principle comports with rule 3.850/3.851, but also provides a reasonable time period for 9

15 the time Gorby filed his successive motion, ten years after his conviction became final, neither the United States Supreme Court nor this Florida Supreme Court had held that Crawford may be retroactively applied. Accordingly, the trial judge correctly ruled the successive motion was time barred. Dixon v. State, 730 So.2d 265, 268 (Fla. 1999) (noting that if defendants file claims pursuant to Rule before the issue of retroactivity has been decided, their claims may be summarily denied). B. GORBY S MOTION IS PROCEDURALLY BARRED Even if the motion was not time barred, this claim is procedurally barred on two alternative grounds. First, Gorby waived this substantive claim when he did not preserve this issue at trial. While Gorby objected to Captain McKeithan s testimony on hearsay grounds, Gorby did not object to the testimony on the grounds it violated his rights under the Confrontation Clause of the United States Constitution. The United States Supreme Court in Coy v. Iowa, 487 U.S.1012 (1988), ruled that confrontation clause violations do not rise to the level of fundamental error but are, instead, subject to a harmless error test. This Court has ruled that constitutional all eligible petitioners to file their claims, including those whose claims were rejected before the decision on retroactivity was announced. 10

16 errors which are not fundamental in character are waived unless timely and properly objected to at trial. Ray v. State, 403 So.2d 956, 960 (Fla. 1981). Additionally, the objection at trial must be on the same specific grounds as those raised on appellate review. Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982). 4 Gorby failed to preserve an alleged confrontation clause violation by making a specific objection at trial and by raising this specific claim on direct appeal. Gorby may not use these post-conviction proceedings to resurrect this unpreserved claim or as a second appeal. Finney v. State, 831 So.2d 651, 657 (Fla. 2003) (ruling that post-conviction motions are not to be used as second appeals and that issues that could have been or should have been raised on direct appeal are not cognizable in post-conviction proceedings). 4 Gorby cannot excuse his failure to pose an objection at trial by an assertion Crawford was not decided until well after his capital trial commenced. An objection to hearsay evidence on the confrontation clause grounds has always been available to Gorby. See Bousley v. United States, 523 U.S. 614, (1998)(noting that even claim based on a change in law may barred when not raised below where basis to raise claim was reasonably available); Walton v. State, 847 So. 2d 438, 445 (Fla. 2003)(to claim retroactive application of Espinosa v. Florida, 505 U.S (1992), issue must have been raised at trial and on direct appeal). 11

17 Second, Gorby s claim is procedurally barred because Gorby already litigated a variation of this claim on direct appeal and in his initial petition for a writ of habeas corpus. In his appeal from his convictions and sentences, Gorby alleged the trial court erred in deciding that Olen Gorby and Freddie Banks was the same person and instructing the jury that was the case. Gorby argued the State was allowed, impermissibly, to prove this aggravator through the hearsay testimony of Captain McKeithan. (IB 42-43). This Court ruled that, through the proffer of Captain McKeithan s testimony, the State had proven Gorby had previously been convicted of a violent felony beyond a reasonable doubt. This Court also found no error in the trial court s ruling on this matter. Gorby v. State, 630 So.2d 544, 548 (Fla. 1993). In his petition for writ of habeas corpus, Gorby raised a similar claim concerning the jury s consideration of this same prior violent felony aggravator. In that petition, Gorby claimed the jury was commanded by the trial court s instruction to consider Gorby s Texas robbery conviction as an aggravating factor. Gorby also alleged appellate counsel was ineffective for failing to challenge the trial judge s ruling that the State 12

18 was not required to prove every element of the Texas conviction as it related to Florida law in order to establish it as a prior violent felony aggravator. (Pet., at 30). This Court rejected Gorby s ineffective assistance of appellate counsel claim because trial counsel failed to preserve this issue for appeal. This Court also noted that to the extent Gorby seeks to reargue the trial judge s finding of the prior violent felony aggravator, that attempt is procedurally barred because the issue was raised on direct appeal. Gorby v. State, 819 So.2d 664,686 (Fla. 2001). Gorby comes before this Court, once again, for a third bite of the apple regarding this same Texas robbery conviction. In Gonzalez v. State, 786 So.2d 559, (Fla. 2001), this Court was faced with a similar situation. On direct appeal, Gonzalez claimed the trial judge erred in permitting the statements of his co-defendants to be used against him in a joint trial and by denying his motion to sever. This Court found error in admitting the testimony but found the error harmless as to the guilt phase. Gonzalez v. State, 700 So.2d 1217, 1219 (Fla. 1997). In his habeas petition, Gonzalez raised a confrontation clause challenge to the admission of this same testimony during 13

19 the guilt phase. Gonzalez argued that this Court, on direct appeal, improperly used a hearsay based harmless error analysis rather than a confrontation clause analysis in reviewing his claim. This Court ruled that Gonzalez s claim was procedurally barred because the substantive claim was addressed on direct appeal of Gonzalez s original case and was, therefore, the law of the case. Gonzalez v. State, 786 So.2d 559,564 (Fla. 2001). By raising this claim a third time in a second successive motion for post-conviction relief, Gorby improperly seeks to circumvent this Court s prohibition against using postconviction proceedings as additional appeals and to avoid the law of the case. This Court should deny his claim. Turner v. Dugger, 614 So.2d 1075, 1078 (Fla. 1992) (ruling that postconviction proceedings cannot be used to obtain a second appeal of issues raised on direct appeal); Rodriguez v. State, 30 Fla. L. Weekly S385 (Fla. May 26, 2005)(same). C. CRAWFORD IS NOT APPLICABLE RETROACTIVELY TO GORBY=S CASE Even if the claim was not time and procedurally barred, Gorby would not be entitled to relief because Crawford does not apply retroactively. Currently, retroactivity in Florida is determined by subjecting a change in the law to the three part 14

20 test outlined in Witt v. State, 387 So.2d 922 (Fla. 1980). This Court held in Witt that a change in decisional law will not be applied retroactively unless the change (1) emanates from the state supreme court or the United States Supreme Court, (2) is constitutional in nature, and (3) constitutes a development of fundamental significance. Because the new rule at issue here appears to satisfy the first two retroactivity factors of Witt, it is the third factor upon which a court s decision must rest. In New v. State, 807 So.2d 52 (Fla. 2001), this Court explained that retroactive application of a new development in the law is warranted only if it so drastically alters the substantive or procedural underpinnings of a final conviction and sentence that individual instances of obvious injustice would otherwise exist. New, 807 So.2d at 53. In determining whether this standard has been met, this Court must consider three factors: the purpose served by the new case; the extent of reliance on the old law; and the effect on the administration of justice from retroactive application. Ferguson v. State, 789 So. 2d 306, 311 (Fla. 2001). In this 15

21 case, the purpose served by Crawford was to return the United States Supreme Court s Confrontation Clause case law to the intent of the framers regarding testimonial hearsay. Crawford is not a guardian of accuracy, rather at its core, Crawford merely changed the test for the admissibility of testimonial hearsay under the Confrontation Clause. The old rule has been extensively relied upon. The cases in which hearsay was admitted at trial are legion. This is particularly true of capital sentencing hearings, given that this Court encouraged the State to present evidence of prior convictions through hearsay. Rodriguez v. State, 753 So. 2d 29, (Fla. 2000)(noting that the Court considered it preferable to have evidence of prior convictions through neutral police witnesses). Moreover, the effect on the administration of justice would be overwhelming. If Crawford is ruled retroactive, defendants who had hearsay admitted at their trial will file post conviction motions. Many will be untimely and successive. The courts of this State would be required to review stale records to make determinations of whether the evidence complained of was hearsay, whether the hearsay was testimonial in nature, whether there was a showing of 16

22 unavailability, whether the defendants had a prior opportunity for cross examination and whether any error in the admission of the evidence was harmful. See State v. Glenn, 558 So. 2d 4, 8 (Fla. 1990)(refusing to apply Carawan v. State, 515 So. 2d 161 (Fla. 1987), retroactively). Given the limited purpose served by the new rule in Crawford, the extensive reliance on pre- Crawford law and the devastating effect on the administration of justice, Crawford should not apply retroactively. The same result would obtain if this Court were to adopt the United States Supreme Court s test for retroactivity. Under Teague v. Lane, 489 U.S. 288 (1989), new rules are not retroactive unless they are either substantive changes in the law; that is, they place beyond the State s power the ability to punish certain conduct or to impose certain punishments on a class of defendants, or they are watershed rules of criminal procedure. Clearly, Crawford did not affect the State s ability to punish conduct or impose certain punishments on a class of defendants. Accordingly, the new rule announced in Crawford is not a substantive change in the law but is, instead, a new rule of criminal procedure. The United States Supreme Court even acknowledged, in 17

23 Crawford, that the rule it was announcing was procedural. See Crawford 124 S.Ct. at As such Crawford would only be retroactive under Teague if it was a watershed rule of criminal procedure. In Crawford, the Supreme Court did not suggest its holding would apply retroactively. Indeed, the United States Supreme Court has recently emphasized that the class of watershed rules is extremely narrow; so narrow in fact that only rules that are so central to an accurate determination of guilt or innocence would qualify under Teague s second exception. Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004); Beard v. Banks, 125 S. Ct. 2504, 2514 (2004)(noting that Teague s second exception is so narrow that the Court has yet to find a new rule that falls under it). Almost all federal circuit courts that have considered the issue of the retroactivity of Crawford to post-conviction cases have determined either that it is not retroactive or expressed doubt that Crawford is retroactive. McGonagle v. United States, 2005 U.S. App. LEXIS (1 st Cir, July 8, 2005) (noting that it is doubtful that Crawford applies retroactively); Mungo v. Duncan, 393 F.3d 327, (2d Cir. 2004) (Crawford not retroactive); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 18

24 2005); Bintz v. Bertrand, 403 F.3d 859, (7th Cir. 2005); Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir. 2004)(expressing doubt that Crawford is retroactive); Brown v. Uphoff, 381 F.3d 1219, (10th Cir. 2004)( Crawford not retroactive). Only the 9 th Circuit has decided otherwise in Bocketing v. Bayer, 399 F.3d 1010(9 th Cir. 2005). Crawford does not implicate the fundamental fairness and accuracy of the criminal proceeding and is not a watershed rule of criminal procedure. This Court should rule Crawford is not retroactive. D. GORBY=S CLAIMS FAIL ON THE MERITS Neither the record of conviction nor Captain Frank McKeithan s testimony fall within the dictates of Crawford. In Crawford v. Washington, 124 S. Ct (2004), the United States Supreme Court held that when hearsay statements of an unavailable witness are testimonial, the Sixth Amendment requires that the accused be afforded a prior opportunity to cross-examine the witness.5 In so ruling, the United States Supreme Court receded from the Ohio v. Roberts, 448 U.S. 56 (1980), "indicia of reliability" test and held that "[w]here 5 Out of court testimonial statements of an available witness 19

25 testimonial evidence is at issue,... the Sixth Amendment demands what common law required: unavailability and a prior opportunity for cross-examination." Crawford, 124 S.Ct. at The Crawford case, as applied in the case at bar, is limited to testimonial statements of an unavailable witness that the State seeks to introduce against a criminal defendant. It does not preclude introduction of all hearsay evidence against an accused. If the evidence sought to be admitted is not testimonial, the Court in Crawford ruled that it was up to the States to decide whether the evidence is admissible through their state s hearsay laws. Crawford at Likewise, the Court in Crawford decided to leave for another day any effort to spell out a comprehensive definition of testimonial but did give some guidance at what would be considered testimonial. Crawford at For instance, the Court noted that extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions would be matters that would be testimonial. Additionally, testimonial statements include those made under circumstances which would lead an objective witness reasonably to believe the statement would be are not included within Crawford s reach. 20

26 available for use at a later trial. Statements taken by police during an investigation or interrogation would fall within the dictates of Crawford. The Court went on to note that [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford at 1364, No fair reading of Crawford lends itself to the notion the State is precluded from introducing records of a defendant s judgment of convictions and criminal history or the testimony of a person with knowledge about those records. In fact the Court in Crawford specifically noted that business records and statements made in the furtherance of a conspiracy were not testimonial. Crawford at Chief Justice Rehnquist observed that Crawford did not encompass business records and public records within its reach when he noted [t]o its credit, the Court's analysis of "testimony" excludes at least some hearsay exceptions, such as business records and official records. To hold otherwise would require numerous additional witnesses without any apparent gain in the truth-seeking process. Crawford at 1378 (Rehnquist C.J. concurring).6 6 Internal citations omitted. 21

27 The Court in Crawford made abundantly clear that its holding is limited only to testimonial statements made by an unavailable witness. Here, the only evidence introduced against Gorby by the State during the penalty phase was Gorby s Texas robbery conviction and the testimony of Captain McKeithan who testified, subject to cross-examination, that a review of Gorby s criminal history revealed that Olen Clay Gorby used the alias Freddie Banks. Because no testimonial statements from unavailable witnesses were admitted against Gorby, the United States Supreme Court s holding in Crawford does not affect the admissibility of either the convictions nor the testimony of a witness with knowledge about the content of public/business records. CONCLUSION Based upon the foregoing, the State requests respectfully that this Court affirm the denial of Gorby s second successive motion for post-conviction relief. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL MEREDITH CHARBULA Assistant Attorney General 22

28 Florida Bar No Department of Legal Affairs PL-01, The Capitol (850) Phone (850) Fax Counsel for Appellee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to D. Todd Doss, Esq. 725 Southeast Baya Avenue, Suite 102, Lake City, Florida this 8 th day of August MEREDITH CHARBULA Assistant Attorney General CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the instant brief has been prepared with 12 point Courier New type, a font that is not spaced proportionately. MEREDITH CHARBULA 23