IN THE SUPREME COURT OF FLORIDA CASE NO. 06-1379 NORMAN PARKER, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURTOF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA REPLY BRIEF OF APPELLANT NEAL A. DUPREE Florida Bar No. 311545 RACHEL L. DAY Florida Bar No. 0068535 PAUL KALIL Florida Bar No. 0174114 CCRC-South 101 N.E. 3 rd Avenue, Suite 400 Fort Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR APPELLANT
RENEWED REQUEST FOR ORAL ARGUMENT Appellant renews his request for oral argument, previously made with his Initial Brief. PRELIMINARY STATEMENT The citation method in this Reply Brief follows the method of the Initial Brief. ii
TABLE OF CONTENTS RENEWED REQUEST FOR ORAL ARGUMENT... ii PRELIMINARY STATEMENT... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...iv ARGUMENT IN REPLY... 1 CONCLUSION AND RELIEF SOUGHT... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 iii
TABLE OF AUTHORITIES CASES Lott v. State, 695 So. 2d 1239 (Fla. 1997)... 3 Lott v. State, 931 So. 2d 807 (Fla. 2003)... 3 STATUTES Fla. Stat. 925.11(2)(a)(2)... 7 RULES Fla. R. Crim. P. 3.853... 1, 5, 8 Fla. R. Crim. P. 3.853 (c)... 4 Fla. R. Crim. P. 3.853(b)(2)... 7 iv
ARGUMENT IN REPLY Initially, the State claims that Mr. Parker s description of the evidence to be tested was overly broad and speculative and that Mr. Parker provides only a vague description of how testing would link the evidence to the issue of identity. (Brief of Appellee, p. 12-13). These characterizations are not borne out by the record. As argued in Mr. Parker s Initial Brief, the Rule 3.853 motion specifically listed the items, with identifying information, to be tested. Each of the items was gathered by law enforcement during the investigation of the sexual battery of Silvia Arana which was committed by the person who murdered Julio Chavez. It could hardly be clearer from the motion and the facts of this case that testing of these items would identify the person who committed these crimes. Next, the State claims that the lower court did not find that the materials no longer exist. This is not borne out by the record. At the June 6, 2006 hearing, the State requested that the lower court modify its written order to reflect the State s assertion that the materials to be tested no longer exist: MS. ZAYAS: Very briefly. I looked at the order and I have one comment to make. In paragraph one, line two, we are talking about the physical evidence that may contain 1
(DNA-R. 61-62). DNA. The clothing items and vaginal smears, while available were previously tested. They were previously available. I don t want that to be read -- I m not sure if I am reading it correctly or incorrectly. Are you saying while available today? THE COURT: No. MS. ZAYAS: They were available previously, as we have indicated. As the State indicated, the defense has failed to establish that they do exist, and if given an opportunity, we would establish they do not currently exist. THE COURT: I guess I can amend the thing, were available at that time and were previously tested. MS. ZAYAS: That would be a little bit more clear. I don t want anybody reading this on appeal to believe you made a finding that they currently do exist. As this exchange demonstrates, the Court accepted the State s assertions that the materials to be tested no longer exist, and modified its order to reflect that finding. Furthermore, the lower court s order very clearly states that physical evidence that may contain DNA with spermatozoa does not exist. (DNA-R. 29). The court makes no distinction between the items specified in Mr. Parker s motion and the items that were previously tested for evidence of a sexual battery. The State s contention that the evidence had never existed (Brief of Appellee, p. 13-14) ignores the fact that the 2
testing performed in 1978 was for the limited purpose of determining whether spermatozoa were present. Such testing in no way compares to the sophisticated testing available today to detect and analyze biological materials that may yield a DNA profile. As argued in Mr. Parker s Initial Brief, DNA testing is not limited to spermatozoa. The presence of any of the perpetrator s genetic material, including seminal fluid, blood, and mucosa which are likely to appear in urine, would yield a DNA profile regardless of the presence of spermatozoa. The State next argues that the lower court s denial of Mr. Parker s Rule 3.853 motion is appropriate because Mr. Parker is seeking DNA testing to confirm the absence of semen. (Brief of Appellee, p. 14, citing Lott v. State, 931 So. 2d 807 (Fla. 2003)). While relying on Lott, the State ignores the fact that Lott did not involve a sexual battery. Lott v. State, 695 So. 2d 1239, 1241 (Fla. 1997). As such, it is reasonable to assume that testing that evidence would not yield a DNA profile excluding Lott as the perpetrator of a sexual battery that never occurred. Unlike Lott, Mr. Parker was tried and convicted of a sexual battery that was directly related to the murder for which he has been sentenced to death. Contrary to the State s assertion, Mr. Parker is not seeking DNA testing to prove the absence of DNA. 3
Rather, he seeks testing of evidence collected in a sexual battery investigation that does contain DNA, and will prove he is not the perpetrator of the sexual battery, or the murder for which he was sentenced to death. The State also argues that Mr. Parker waived any entitlement to an evidentiary hearing because Mr. Parker refused the State s offer to have an evidentiary hearing conducted to determine whether the evidence still existed. (Brief of Appellee, p. 15). This contention is puzzling. Rule 3.853(c) sets out the procedure to be followed when a motion for postconviction DNA testing is filed: (2) The court shall review the motion and deny it if it is insufficient. If the motion is sufficient, the prosecuting authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court. (3) On receipt of the response of the prosecuting authority, the court shall review the respond and enter an order on the merits of the motion to set the motion for hearing. Fla. R. Crim. P. 3.853 (c). Mr. Parker did not refuse an evidentiary hearing at any time. At the May 30, 2006 status hearing, counsel stated that an evidentiary hearing was premature because the lower court had not yet ruled on the sufficiency of the motion. (DNA-R. 53). The State faults Mr. Parker because he insisted that the 4
lower court first determine whether the motion was facially sufficient. (Brief of Appellee, p. 15). However, this procedure is entirely in keeping with Rule 3.853, which makes no provision for an evidentiary hearing to determine if the defendant s motion is sufficient, regardless of whether the State offers one or not. In any event, the motion was clear that the items to be tested were in possession of the Miami-Dade Police Department, and counsel informed the lower court that Miami-Dade Police Department had indicated, on several occasions, that the items were in their possession. (DNA-R. 52). As such, an evidentiary hearing was not required at that time. In fact, Rule 3.853 does not provide for such an evidentiary hearing before the court rules on the sufficiency of the motion. Mr. Parker should not be faulted for complying with the Rules of Criminal Procedure. Furthermore, the lower court reset the matter for one week later, at which time the court had already issued its ruling on Mr. Parker s motion. At that point, Mr. Parker could not accept the State s offer of an evidentiary hearing, even if that were appropriate under the Rule 3.853. Lastly, the State argues that the lower court properly determined that DNA testing would not create a reasonable probability of a different result on retrial. (Brief of 5
Appellee, p. 16). In fact, the lower court denied Mr. Parker s motion because there is not a reasonable probability that the Defendant would be acquitted if the DNA testing is redone, as it did not identify him previously, nor is there a probahbility that he would receive a lesser sentence. (DNA-R. 30). In any event, the State fails to address the errors in the lower court s analysis. The lower court relies on the fact that Mr. Parker was not linked to this crime by DNA, that circumstantial evidence links Mr. Parker to the crime, and that laboratory tests did not find spermatozoa on any of the items tested in 1978. (DNA-R. 30). The fact that laboratory testing conducted in 1978 found no spermatozoa is not dispositive. As argued above, spermatozoa is not required for DNA testing. Moreover, testing performed in 1978 does not compare with the testing procedures available today. Similarly, the fact that Mr. Parker was not linked to this crime by DNA is irrelevant. Of course, DNA testing was not available at the time of Mr. Parker s trial, which is precisely why the Legislature and this Court now allow for postconviction DNA testing. The court s reasoning ignores the fact that a defendant s motion for postconviction DNA testing must include a statement that the evidence was not tested previously for 6
DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result. Fla. Stat. 925.11(2)(a)(2); Fla. R. Crim. P. 3.853(b)(2). The fact that Mr. Parker was never linked to this case by DNA is more of a reason for granting DNA testing than for denying it. Lastly, the State makes much of the circumstantial evidence presented at trial to support the contention that there is no reasonable probability of a different result at retrial. (Appellee Brief, p. 17). The State ignores the probative value of DNA evidence. The State has maintained throughout that the person who committed the sexual battery is the same person who committed the murder. Despite the circumstantial evidence presented at trial, had Mr. Parker s jury heard scientific evidence that positively excludes him as the perpetrator of the sexual battery, and therefore the murder, it cannot be said that he is not likely to have been acquitted of the murder for which he was convicted and sentenced to death. 7
CONCLUSION AND RELIEF SOUGHT Based on the foregoing, Mr. Parker respectfully requests that this court reverse the circuit court s order denying postconviction DNA testing, remand to the circuit court for DNA testing and for further proceedings pursuant to Rule 3.853. Respectfully submitted, NEAL A. DUPREE Florida Bar No. 311545 CCRC-South RACHEL L. DAY Florida Bar No. 0068535 Assistant CCRC-South By: PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South CCRC-South 101 N.E. 3 rd Avenue, Suite 400 Fort Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR APPELLANT 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail, first class postage prepaid, to Sandra Jaggard, Assistant Attorney General, 444 Brickell Avenue, Suite 650, Miami, Florida 33131, this 29th day of May, 2007. PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South CERTIFICATE OF COMPLIANCE The undersigned counsel hereby certifies that this brief complies with the font requirements of rule 9.210(a)(2), Fla. R. App. P. PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South 9