MOTION TO SUPPLEMENTICORRECT THE RECORD AND FOR AN EXTENSION OF TIME

Transcription

1 COURT a JOHN EVANDER COUEY, Appellant, ) VS. ) CASE NO. SC ), - Cir. Ct:No ( STATE OF FLORDA, Appellee.,.*.A ) ;.. '... MOTON TO SUPPLEMENTCORRECT THE RECORD AND FOR AN EXTENSON OF TME Appellant, by and through his undersigned counsel and pursuant to Florida Rule of Appellate Procedure (f), requests an order directing suppleinentation/correctionof the record on appeal (securing an unredacted copy of the record) and an extension of time to file the nitial Brief of Appellant. As grounds for this motion, Appellant states:. This is a direct appeal fiom the defendant's convictions for first degree murder, burglary of a dwelling, lcidnapping a child with intent to commit sexual battery, and sexual battery on a child, and fioni a resultant death sentence and three consecutive life sentences.

2 2. The ongoing review of the extensive 8,000+ page record on appeal in this case has revealed that there are widespread redactions of iteins from the pleadings which are essential for a full, coinplete review of this death case. t appears that, pursuant to Section 92.56, Florida Statutes, the trial court clerk redacted fiom a. substantial portion of the pleadings (the first 5027 pages of the record) the name of the victim, the name of the victim's relatives who were listed as witnesses in the casej and the addresses and any identifying details of the victim and her family. Ultimately, the trial court, pursuant to niotion of the state and because the naiiie of the victim was widely publicized and lcnown to the public (the legislature having nanied a bill for the victim), authorized the release of the victim's name. (Vol. 27, R ; Vol. 28, R5278) While there are some of the pleadings containing simply a redaction of the victim's name that could be assumed, inany containing naines and addresses of witnesses (the victim's family members) cannot be determined in their current state. Unredacted copies of all of these pleadings are r i :!- ji a necessary for a coinplete and accurate review of the record and preparation of the briefs. These iteins are: a. Order on State's ex parte motion to seal search warrant, etc. (Vol., R ); b. Arrest Affidavit (Vol., R 2-5); :.. i '

3 c. ndictment (Vol., R 7-8); d. State's Discovery Exhibit (Vol., R28-40) e. State's Suppleinental Discovery Exhibits, 2, and 3 (Vol., R 42-48, 5-54,57-60) f. Defendant's First Motion for Disqualification (Vol., R 73-77).. g. Notice of ntent to Release Property and thekdefendant's ObjectionfResponse thereto (Vol., R 84, 85-86); h. State's Suppleinental Discovery Exhibit #4 (Vol., R 93-95) j. Motion Authorizing Disclosure of Coui-t Authorizd Search (Vol., R 03); lc. State's Application to Take Deposition to Perpetuate Testimony (Vol., R 04-05);. Transcript of Deposition of Scott James Grace (Vol. 2, R 6-245);. State's Suppleinental Discovery Exhibit #5 (Vol. 2, R264); n. Transcript of Deposition of Jeffery Scott Bolin (Vol. 2, R ); o. State's Supplemental Discovery Exhibit #6 (Vol. 2, R ); p. Transcript of Deposition of Terry Wetinore (Vol. 2, R ); q. Transcripts of Depositions of Tamiiy Paynter, etc. on 0/25/2005 (filed 2/2/2005) (Vol. 3, R ); r. Supplemental Discovery Exhibit # - (Vol. 3, R ); s. Transcript of Deposition of Matt Dittrich (Vol. 3, R );

4 t. Transcript of Deposition of James Boylan (Vol. 3, R ); u. Transcript of Deposition of Caren Couey (Vol. 4, R ); v. Transcript of Deposition of Dr..eti Colxii (Vol. 4, R ); w. Transcript of Deposition of Dr. Steven Cogswell (Vol. 4, R ); x. Motion for Change of Venue with Attachments (Vol. 5, R ; Vol. 6, R ); y. Transcript of Deposition of James Cenneth Manz (Vol. 6, R ); z. Defendant's Motion to Suppress (Vol., R ); aa. Transcript of Deposition of John Seffien (Vol. 2, R ); bb. Transcript of Deposition of Gary Atchison (Vol. 2, R cc. Certified Question for the Deposition of (Redacted) on May 6, 2005 (Vol. 2, R ) dd. Certified Question for the Deposition of (Redacted) on May 5, 2005 (Vol. 2, R ); ee. Transcript of Deposition of Deposition of Robert Rooney (Vol. 2, R ); ff. Transcript of Dorothy Dixon (Vol. 2, R ); gg. Transcript of Karen Lanning (Vol. 2, R ); hh. Transcript of Susan Stover, M.D. (Vol. 3, R ); 4

5 ii. Transcript of Deposition of Kenneth Slanlcer (Vol. 3, R ); jj. Transcript of Deposition of Gene Secord (Vol. 3, R ); ldc. Transcript of Deposition of Daniel Michael Blanton (Vol. 4, R );. Transcript of Deposition of Salina Blanton (Vol. 4, R ); ~m. Trancript of Deposition of Sherry L. Scruggs (Vol. 4, R ); nn. Transcript of Deposition of (Redacted) on May 5,2006 (Vol. 4: R ); 00. Transcript of Deposition of (Redacted) on May 5,2006 (Vol. 4, R ); pp. Transcript of Deposition of Officer Eugene Solomon (Vol. 5, R ); qq. Transcript of Deposition of Sergeant Milce zzo (Vol. 5, R ); rr. Transcript of Deposition of Officer Michael Love (Vol. 5, R ); ss. Transcript of Barbara Ra~nos-Mendez (Vol. 5, R ); tt. State's Response to Defendant's Motion to Suppress Physical Evidence (Vol. 5, R ); uu. State's Response to Defendant's Motion to Suppress Statements (Vol. 5, R ); W. State's Response to Defendant's Motion to Preclude mposition of

6 tlie Death Penalty (Vol. 6, R ); ww. Transcript of Deposition of Dep. Juan Santiago (Vol. 6, R ); xx. Transcript of Deposition of Sgt. Dwayne Hassell (Vol. 6, R ); ' zz. Transcript of David Fields (Vol. 6, R ); aaa. Transcript of Deposition of Msu-tin David Cannaday (Vol. 6,R ); bbb. Transcript of Deposition of ~atii"ei Holder (Vol. 7, R 37-32); ccc. Transcript of Deposition of Timothy Martin (Vol. 7, R ); ddd. Transcript of Deposition of Caroline Zervos (Vol. 7, R ); eee. Transcript of Deposition of Richard E. Briggs, Jr. (Vol. 7, R ); fff. Transcript of Deposition of Stephen Conley (Vol. 7, R ); ggg. Transcript of Deposition of (Redacted) on May 6,2006 (Vol. 8, R ); hlzh. Transcript of Deposition of Liet. David Stricltland (Vol. 8, R ); iii. Transcript of Deposition of Det. Brian Spiddle (Vol. 8, R );

7 - -.- jjj. ~efendant'sreply to State's Response to Defendant's Motion to Suppress, etc. (Vol. 2, R ); lddc. Motion in Liinine (Vol. 2, R );. Order on Motion to Suppress (Vol. 2, R ); -. Motion to Strilte Witnesses Listed by the State and Appendix (Vol. 2, R ); nnn. Notice of Filing Media Reports (Vol. 22, R ; Vol. 23, R ); ooo. Transcript of Deposition of Deposition of Lance Newman (Vol. 24, R ); ppp. State's Third Motion in Liinine (Vol. 24, R ); qqq. Defendant's Motion for Reconsideration and Clarification of Venue for Trial and Exhibits (Vol. 24, R ; Vol. 25, R ); n-r.transcript of Deposition of Det. Julius Glenn Gause, Jr. (Vol. 25, R ); sss. Notice of Filing Defendant's Statements (Vol. 26, R ); ttt. Defendant's Second Motion to Suppress Confession or Adinission with Attachments (Vol. 26, R ); uuu. Response to Defendant's Second Motion to Suppress Confession or Admission (Vol. 26, R ); vvv. Copy of News Article fkoni Miami Herald (Vol. 26, R ); and www. Order on Defendant's Second Motion to Suppress confession

8 or Admission (Vol. 26, R ). 3. Florida Rule of Appellate Procedure 9.42(a)(l), provides for the preparation of the complete record in capital appeals. Rule 9.200(f) states that no proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given. n the case of an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or this Court may cogect the record. Appellant especially wishes to emphasize the need for a complete record on appeal in capital cases. As recognized by the lower court's order lifling the redaction of pleadings in this case, the victim's name and those of her family members have long been widely lcnown to the public. (Vol. 28, R 5278) Additionally, pleadings prepared for the parties under Section , Florida Statutes, are not to be redacted. 4. Counsel for Appellant also requests additional time upon receipt of the requested supplemental record to review the suppleinent and to finish review of the 8,000-t- page record (the longest record by far that the undersigned has ever encountered in his 3 years of handling cap'ital appeals), and to prepare the initial brief of appellant. No prior extensions of time have been sought, The extension is necessary in order to provide effective assistance of counsel and adequately prepare

9 the initial brief. Counsel has diligently been working on this case, but has also been involved in preparation and filing of apetition for United States Cei-tiorari review in another capital case, as well as worlc on a capital replylcross-answer brief in another capital appeal. Additionally, counsel, as chief of his office's appellate division, has had several administrative duties whicli have coimiianded his attention away froin the instant case, including the active monitoring of felony appeals formerly handled. <L ".Lby attorneys no longer with the office and not replaced due to the drastic budget. % k.,, cuts of the past year. This office has assigned an additional attorney to assist in the preparation of this extraordinary case (at a great toll on the caseloads of the other attorneys in the office handling these DCA felony appeals, a number necessarily reduced by extensive budget cuts). But despite this measure, the undersigned couiisel and his assistant have not yet been able to complete the reading of the 8,000+ page record in this case. For these reasons, the Appellant seelcs an additional 20 days beyond the filing of the requested suppleinental record in which to attempt to complete the review of this huge record and prepare and file the nitial Brief of Appellant. 5. This motion is filed in good faith and not for the purpose of delay. 6. Due to the extensive need for coirection/supplerneiitation, counsel suggests and requests that this Court order the return by the Court and the parties of

10 their copies of the first 26 volulnes of the record on appeal (wlierein these deletions occur) to the trial court so that the trial coui"cclerc may substitute the non-redacted pages of these pleadings into the existing record on appeal (thereby maintaining the smile record page nuinbering of these volulnes and the remaining.93 volu~nes of the record on appeal). 6. Undersigned counsel has contacted.assistant Attorney General cenneth Numelly, who has indicated that the State needs to review tliis motion before taking a position on therequested suppleinentationlcorrection,and will take no position on the requested extension of time. WHBEFORE, Appellant respectfully requests this Court grant leave to supple~nent/correcthe record with the aforementioned 75 items and for an extension of time of 20 days beyond the filing of the supplemental record in which to file the nitial Brief of Appellant.

11 Respectfully submitted, J M S S. PURDY PUBLC DEFENDER SE,JnNTH JunrCAL CRCUT,' 47 #' JAMES R. WULCHAK CHEF, APPELLATE DVSON ASSSTANT PUBLC DEFENDER FLORDA BAR NO Seabreeze Blvd., Suite 2 0 ' Daytona Beach, FL 3 28 (386) COUNSEL FOR APPELLANT

12 CERTFCATE OF SERVCE HEREBY CERTFY that a true and correct copy of the foregoing has been i delivered by hand to: heth Nunnelly, Esq., Assistant Attorney General, 444 Seabreeze Blvd., Fifth Floor, Daytona Beach, FL 32 8, via his baslcet located at the Fifth District Court of Appeal; and by mail to: Mr. Paul Mihallco, Clerk's Office, Appellate Division, 0 Apoplca Avenue, nverness, FL 34450; and Mr. - John Evader Couey, nmate # , Florida State Correctional nstitution, 789 ; N.W. 228" Street, Raiford, FL 32026, this 9'' day of June, JA&~EsR. WULC-LCK ASSSTANT PUBLC DEFENDER