IN THE SUPREME COURT OF FLORIDA CASE NO. SC 12-773 6 ETHERIA V. JACKSON, Appellant, v. STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, STATE OF FLORIDA REPLY BRIEF OF APPELLANT MARIA E. DELIBERATO Assistant CCRC Florida Bar No. 664251 MARIE-LOUISE SAMUELS PARMER Assistant CCRC Florida Bar No. 0005584 Capital Collateral Regional Counsel - Middle Region 3801 Corporex Park Dr., Suite 210 Tampa, FL 33619 (813)740-3544
TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 ARGUMENT I...1 MR. JACKSON MADE A SUFFICIENT SHOWING FOR POST CONVICTION DNA TESTING UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.853 AND SECTION 925.11, FLORIDA STATUES. THEREFORE, THE LOWER COURT ERRED IN DENYING MR. JACKSON'S MOTION... 1 ARGUMENT II...9 THE LOWER COURT ERRED IN DENYING MR. JACKSON AN EVIDENTIARY HEARING TO DETERMINE THE LOCATION OF THE EVIDENCE SOUGHT TOBE TESTED...9 ARGUMENTIII...12 DENIAL OF MR. JACKSON'S ACCESS TO THE EVIDENCE TO CONDUCT DNA TESTING IS A DENIAL OF HIS DUE PROCESS AND EQUAL PROTECTION RIGHTS UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDEMENTS TO THE UNITED STATES CONSTITUTION...12 CONCLUSION AND RELIEF SOUGHT...15 CERTIFICATE OF SERVICE...16 CERTIFICATE OF COMPLIANCE...17 1
TABLE OF AUTHORITIES Cases Amendment To Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633 (Fla. 2001)... 14 Cole v. State, 83 So.3d 706 (Fla. 2012)... 12, 13 Harvey v. Horan, 285 F.3d 298 (4* Cir. 2002)... 15 Overton v. State, 976 So.2d 536 (Fla. 2008)... 11 Scott v. State, 46 So.3d 529 (Fla. 2009)... 12, 13 Skinner v. Switzer, 131 S.Ct. 1289, 179 L.Ed. 2d. 233 (2011)... 13, 14 Statutes Fl. Stat. 921.141...2 11
PRELIMINARY STATEMENT Any claims not argued are not waived and Appellant relies on the merits of his Initial Brief. STATEMENT OF THE CASE AND FACTS Appellant has no objection to Appellee's Statement of the Case and Facts. The Appellee recites the facts of the crime as found by this Court on Mr. Jackson's direct appeal and correctly outlines the procedural history of Mr. Jackson's case. ARGUMENT I MR. JACKSON MADE A SUFFICIENT SHOWING FOR POST CONVICTION DNA TESTING UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.853 AND SECTION 925.11, FLORIDA STATUES. THEREFORE, THE LOWER COURT ERRED IN DENYING MR. JACKSON'S MOTION. The State argues that Mr. Jackson has not met his burden under Fla. R. Crim Pro. 3.853 because Mr. Jackson failed to "lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence." (Answer Brief, p. 15). The State focuses on the fact that because Mr. Jackson already argued at trial that Linda Riley committed the murder and that Mr. Jackson helped her cover it up, the evidence he seeks to test will not serve to exonerate him or lessen his sentence. (Answer Brief, p. 17). However, the State fails to address the fact that the jury's vote for death was 7-5, a bare majority. Had Mr. Jackson had the scientific 1
evidence to corroborate his version of events, it is likely that one more juror would have voted for a life sentence. Moreover, scientific evidence showing Linda Riley's DNA on critical items and the absence of Mr. Jackson's DNA on those critical items would have supported the mitigating circumstance that "[t]he defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor." Fl. Stat. 921.141(6)(d). Each piece of evidence will be discussed in turn. 1. Arm Cast Of the six items Mr. Jackson sough to test, the State alleges that the cast is apparently the only remaining piece of evidence in the State's possession. (Answer Brief, p. 11). The State contends that Mr. Jackson has not demonstrated that DNA testing of the cast will exonerate him or mitigate his sentence. (Answer Brief, p. 26). Ms. Riley testified that Mr. Jackson beat Mr. Moody about the face repeatedly with his cast. The medical examiner testified that Mr. Moody had lacerations and bruises on his face and mouth consistent with being struck by a cast. TR Vol. XVI, p. 898. If this testimony is accurate, then blood, saliva, and/or skin cells from Mr. Moody would be present on the cast. The State relies heavily on the fact that Mr. Jackson told the police that he had washed the cast and concluded that was why forensic testing failed to produce any blood trace evidence. (Answer Brief, p. 26). 2
The State fails to address Mr. Jackson's request for DNA testing for saliva, sweat or skin cells. This type of "touch" DNA was not available at the time of Mr. Jackson's trial. The State, as did the lower court, focused on the lack of blood on the cast and did not address Mr. Jackson's argument that if he was the killer, the cast should contain the saliva, sweat, or skin cells of Mr. Moody. At trial, Mr. Jackson attempted, through argument and cross-examination, to show that Linda Riley was the actual killer. Without any corroborating physical evidence, the jury rejected his argument. If the jury had heard that neither Mr. Moody's blood nor his saliva, sweat, or skin cells were present on Mr. Jackson's cast, there exists a reasonable probability that they would have rejected Linda Riley's testimony as not credible and would have acquitted Mr. Jackson. At the very least, this evidence would have secured the additional vote needed for Mr. Jackson to obtain a life sentence. As noted in Mr. Jackson's Initial Brief and conceded by the State in its Answer Brief, Linda Riley was the State's only eyewitness to the murder. She had been told by law enforcement that she could either be a witness or a defendant. She chose the former, and it was primarily her testimony that helped to secure a conviction and death sentence for Mr. Jackson. Further, the jury vote was only 7-5. Physical evidence corroborating Mr. Jackson's version of events and discrediting Linda Riley's version would have changed the outcome of the case. 3
As such, Mr. Jackson has met the requirements in Fla. R. Crim Pro 3.853 and the lower court should have granted DNA testing on the arm cast. 2. Two butcher knives The State asserts that the two butcher knives are no longer in its possession. (Answer Brief, p. 26). However, as argued in Mr. Jackson's Initial Brief, this Court cannot know for certain where these knives are located because the lower court failed to conduct an evidentiary hearing as required. The State argues that Mr. Jackson "speculates" that there was biological material on the knives. (Answer Brief, p. 27). However, it is unclear how Mr. Jackson can be penalized for failing to state with certainty whether the knives actually contain any DNA evidence when Mr. Jackson does not have the ability to examine the knives due to the State's destruction of evidence in a death penalty case. Such logic is circular. Yet, the court denied Mr. Jackson an evidentiary hearing to take testimony to fmd out exactly how, when, and if the items were actually destroyed. As to the relevance of the two butcher knives from Ms. Riley's apartment, one of those knives is most likely the murder weapon. As noted in the Initial Brief, Ms. Riley testified that there were two knives used in the crime and that she threw away only the broken knife. She testified that she put the other one in the sink. TR Vol. XV, p. 641. 4
The State asserts: "[a]pparently, Jackson believed at the time of trial that the murder weapon and the belt used in the murder were thrown away. (TR Vol. XVII 1117). Jackson used the absence of this evidence to argue he was innocent of the murder. Jackson posited to the jury that Riley threw away the murder weapons. Jackson used Linda Riley's testimony that she threw away the knife and the belt (that was used to choke him apparently) as evidence she was not credible. Jackson argued at trial to discredit Linda: 'How about the corroboration by means of physical evidence, like the belt, the knives, the wallet, the papers, and the wallet, and the watch. Well that might have provided some corroboration, but who threw them away? Linda threw them away.' (Answer Brief, p. 26). The fact that the defense relied on a different argument at trial does not preclude Mr. Jackson from obtaining DNA testing under Rule 3.853. DNA testing was not available at the time of Mr. Jackson's trial. Had it been, either the state or trial counsel would have had the knives tested. The fact that trial counsel made his argument based on the evidence that was available to him is not a reason to deny DNA testing in this case. To satisfy the requirements of 3.853, Mr. Jackson must show that the items he seeks to test have not been tested previously, not that he has always made the same argument regarding the significance of the evidence. The State argues that because it was Linda Riley's apartment, it would not exonerate Mr. Jackson if her DNA were found on the murder weapon. Perhaps if there was no blood belonging to the victim on the knives and there was only DNA 5
from Linda Riley's skin cells found on the handles, the State might have a stronger argument. However, the presence of the victim's blood and Ms. Riley's blood on the murder weapon, which was collected within a few days of the murder, cannot be explained by common household contact. Had the jury heard that the knives contain the victim's blood and Linda Riley's blood it is likely they would have found Mr. Jackson not guilty or at the very least he would have gained the additional vote he needed for a life sentence. The lower court conceded that this murder was a protracted struggle. As such, it is likely that the actual killer was cut during the attack. If Mr. Moody's DNA is recovered from one of those knives and blood from Ms. Riley is present on the knife, that will conclusively prove that Ms. Riley stabbed Mr. Moody, which she adamantly denied at trial. In addition, the absence of Mr. Jackson's DNA on the potential murder weapon will exonerate him or at the very least mitigate his sentence. As such, Mr. Jackson has met the requirements in Fla. R. Crim Pro 3.853 and the lower court should have conducted an evidentiary hearing to determine the location of the knives. 3. Brown belt The State asserts that the brown belt is no longer in its possession. (Answer Brief, p. 28). However, as argued in Mr. Jackson's Initial Brief, this Court cannot know for certain where this belt is located because the lower court failed to 6
conduct an evidentiary hearing as required. The State makes a similar argument with respect to the belt that "[1]ike the knives, the belt was found in Ms. Riley's home where she and both Jackson (sic) lived." (Answer Brief, p. 28-29). Again, perhaps if there was DNA belonging to the victim on the belt and there was only DNA from Linda Riley's skin cells found on the handle, the State might have a stronger argument. However, the presence of the victim's DNA and Ms. Riley's blood on the belt, which was collected within a few days of the murder, cannot be explained by common household contact. The brown belt collected from Ms. Riley's apartment that was used to strangle Mr. Moody should contain DNA from both Mr. Moody and the actual killer. If Mr. Jackson used the belt to strangle Mr. Moody like Ms. Riley said, his DNA should be on the belt. The absence of Mr. Jackson's DNA and/or the presence of Ms. Riley's DNA on the belt will exonerate him or at the very least mitigate his sentence. As such, Mr. Jackson has met of the requirements in Fla. R. Crim Pro 3.853 and the lower court should have conducted an evidentiary hearing to determine the location of the brown belt. 4. Victim's Pants and Eyeglasses The State asserts that the victim's pants and eyeglasses are no longer in the State's possession. (Answer Brief, p. 29). However, as argued in Mr. Jackson's Initial Brief, this Court cannot know for certain where the pants and eyeglasses are 7
located because the lower court failed to conduct an evidentiary hearing as required. The State characterizes Mr. Jackson's request to test the pants and eyeglasses as speculative because "Jackson failed to demonstrate that biological material was deposited in Mr. Moody's pockets or that this is even a likely scenario." (Answer Brief, p. 29). The State again faults Mr. Jackson for not being able to examine the evidence to determine whether it contains biological material when it was the State who failed to properly maintain evidence in a death penalty case. Moreover, contradicting the state's argument that obtaining DNA from the victim's pockets is not a "likely scenario," is Linda Riley's testimony from the trial that Mr. Jackson went through the victim's pockets. If her testimony was accurate, it is likely that his DNA would be found there. The absence of his DNA in the victim's pocket would serve to exonerate him or mitigate his sentence. As for the eyeglasses, the State argues that because Mr. Moody was rolled up in the carpet, DNA from Linda Riley could have been on the carpet and transferred to Mr. Moody's glasses. (Answer Brief, p. 30). The State misapprehends Mr. Jackson's argument as to the significance of the glasses and their precise location on Mr. Moody's body. The glasses were not found lying on the carpet as the lower court erroneously concluded. ROA Vol. II, p. 317-18. According to the crime scene photographs introduced by the State, the glasses were found pushed down around Mr. Moody's throat. TR VOL XIV, p. 518, 536. The 8
crime scene photographs, which were taken by law enforcement as Mr. Moody's body was carefully unrolled from the carpet, show the glasses lodged under his chin, around his throat. They were not in direct contact with the carpet. It is apparent from the evidence that the glasses were pushed down in the struggle. The lower court itself concluded that the murder "was no arms length transaction, nor drive-by shooting. This was a face-to-face, hand-to-hand physical assault upon a grown man. Mr. Moody was attacked with hands, a cast, knives, and a belt used as a garrote." ROA Vol. II, p. 314-15. Since there was a protracted struggle, the eyeglasses should contain DNA from sweat and/or skin cells of the actual killer. If Mr. Jackson was straddled over Mr. Moody's upper chest as Ms. Riley says, presumably he was sweating and/or depositing his skin cells on Mr. Moody's glasses. If the eyeglasses can be located and were not improperly destroyed by the State, they are likely to contain sweat and/or skin cells of the actual killer. The absence of Mr. Jackson's DNA on Mr. Moody's glasses and/or the presence of Ms. Riley's DNA on the glasses will exonerate Mr. Jackson or at the very least mitigate his sentence. As such, Mr. Jackson has met of the requirements in Fla. R. Crim. Pro 3.853 and the lower court should have conducted an evidentiary hearing to determine the location of the pants and eyeglasses. ARGUMENT II THE LOWER COURT ERRED IN DENYING MR. JACKSON AN EVIDENTIARY HEARING TO 9
DETERMINE THE LOCATION OF THE EVIDENCE SOUGHT TO BE TESTED. The State concedes that "[o]rdinarily, when the state avers that evidence requested to be DNA tested is not longer in its possession, the trial court would hold an evidentiary hearing to determine whether that is the case. Such a procedure would allow the trial court to make findings, supported by competent substantial evidence, set forth in Rule 3.853 (c)(5)(a), Florida Rules of Criminal Procedure." (Answer Brief, p. 31). However, the State asserts a hearing was not necessary in this case "because the trial court determined that, even if the evidence requested to be tested did exist, Jackson had failed to make a threshold showing DNA testing would raise a reasonable probability of acquittal or a lesser sentence." (Answer Brief, p. 31-32). The State's reliance on Scott v. State, 46 So. 3d 529, 534 (Fla. 2009) is misplaced. Unlike in Mr. Jackson's case, in Scott there was no allegation that any of the five blood stains Scott sought to have tested were missing. 2008 WL 872063 (Fla.) (Appellate Brief, p. 7). Moreover, this Court noted that Scott fulfilled the technical requirements of Rule 3.853 when he "established [the evidence's] last known location." Scott v. State, 46 So.3d 529, 532 (Fla. 2009). There is a genuine factual dispute as to the location of the evidence in Mr. Jackson's case. When counsel for Mr. Jackson attempted to locate the evidence, property custodian James Burt informed counsel that all of the evidence was 10
transmitted to the Clerk's Office in 1986. ROA Vol. I, p. 17. Yet the State's Response to the 3.853 Motion included an affidavit from the same property custodian, James Burt. Mr. Burt was now claiming that the knives, belt, pants and eyeglasses "were likely destroyed from the water damage in the Christopher Building." Id. at p. 57(emphasis added). The affidavit does not state with certainty whether this actually occurred. The State has failed to provide documentation as to when the water damage occurred and whether Mr. Jackson's evidence was actually in that location at the time of the damage. Further, it is unclear whether there is any documentation of the actual items that were destroyed by the Sheriff's Office. The affidavit says generally that evidence in the Christopher Building was damaged, deteriorated, or destroyed. ROA Vol. I, p. 56. It does not say whether there exists a list of the actual evidence affected by this water damage or whether any of the evidence was able to be salvaged. These factual disputes should have been resolved at an evidentiary hearing. Overton v. State, 976 So.2d 536, 571 (Fla. 2008). The lower court denied Mr. Jackson's request for an evidentiary hearing because it ultimately concluded that even if the items were located, Mr. Jackson has not been able to demonstrate whether they contain DNA evidence to be tested. Such a finding defies logic. Because the evidence was missing, Mr. Jackson was unable to examine the evidence to even conduct a visual examination as to whether 11
it contained blood or other biological material. Mr. Jackson should not be penalized for the State's failure to fulfill its requirements to properly maintain evidence in a death penalty case as required by Fl. Stat. 925.11(4). Absent a full and fair hearing, the State's argument and the lower court's finding that the evidence is missing is speculative. Denying Mr. Jackson an opportunity to cross-examine the State's witnesses regarding the location and timing of the alleged destruction of this evidence, or the possible continuing existence of this evidence, is a violation of his Due Process rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution. As such, Mr. Jackson requests that this Court remand for an evidentiary hearing to determine the location of this evidence. ARGUMENT III DENIAL OF MR. JACKSON'S ACCESS TO THE EVIDENCE TO CONDUCT DNA TESTING IS A DENIAL OF HIS DUE PROCESS AND EQUAL PROTECTION RIGHTS UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDEMENTS TO THE UNITED STATES CONSTITUTION. 12
The State's reliance on Scott v. State, 46 So.3d 529, 534-535 (Fla. 2009) and Cole v. State, 83 So.3d 706 (Fla. 2012)1 is misplaced. First, in Scott, this Court noted that the constitutional right to access DNA evidence was not raised to the lower court and therefore was procedurally barred. Scott v. State, 46 So. 3d 529, 534 (Fla. 2009). Mr. Jackson, on the other hand, squarely raised the violation of due process and equal protection argument to the lower court. In Cole v. State, 895 So.2d 398 (2004), the constitutional challenge was that "the Florida and United States Constitutions provide a right to access evidence for the purposes of DNA testing if it 'could prove a man innocent in fact or of the death penalty.'" IJ. at 403 (n.1). Mr. Jackson raised a different constitutional claim, and instead argued that the denial of his request to submit this evidence for DNA testing violates his rights under the due process and equal protection clauses of the Florida and United States Constitutions. Those provisions, like Rule 3.853, have long recognized a defendant's constitutional right to prove his innocence by introducing evidence that a third party committed the crime - rooted in the fundamental right to "present a defense." U.S. Const. amend. VI, XIV; Florida Const. Art. 1 9, 16. The State wholly failed to address Mr. Jackson's constitutional argument 1 It appears the State meant to reference Cole v. State, 895 So.2d 398 (Fla. 2005). The "83 So.3d 706" cite is to an unpublished 2012 order regarding a Successive 3.851 Motion filed by Mr. Cole based on newly discovered evidence of the horrific abuse he witnessed and suffered at the Dozier School for Boys. 13
including the fact that the United States Supreme Court case of Skinner v. Switzer, 131 S.Ct. 1289, 179 L.Ed. 2d. 233 (2011), puts Mr. Jackson in a unique procedural posture due to the current constraints of Florida law. CCRC, under Florida Statute 27.702, is not authorized to file, on Mr. Jackson's behalf, 1983 claims alleging a violation of due process and other federal constitutional rights based on a state court's denial of his request to seek DNA testing under a state statute. The Skinner Court held that "a post conviction claim for DNA testing is properly pursued in a 1983 action." Id. The Court reasoned, "[s]uccess in the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or inconclusive." Id. Therefore, Mr. Jackson's equal protection and due process rights are violated because he is indigent and his court appointed counsel is legally prohibited from filing a 1983 claim seeking DNA testing on his behalf should the state courts deny his claim under the state statute. The Florida Constitution and U.S. Constitution provide a right to access evidence for the purposes of DNA testing if that DNA testing could be used to prove one's innocence or to appeal for executive clemency. See Amendment To Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633 (Fla. 2001), Anstead, J. (concurring in part and dissenting in part) (stating "At its core, access to DNA testing is simply a unique means of establishing a claim... under the constitutional 14
writ of habeas corpus... Entitlement to access to the courts for relief under the writ of habeas corpus is provided for expressly in Florida's Constitution... The salient issue in such proceedings is whether there is a credible claim that a fundamental injustice has occurred.") 807 So. 2d at 636-37. See also Harvey v. Horan, 285 F.3d 298 (4* Cir. 2002) Luttig, J. (concurring) (arguing that the U.S. Constitution provides a right to access evidence for the purposes of postconviction DNA testing if such testing could prove one's actual innocence.) When DNA testing could prove Mr. Jackson innocent of the crime and/or of the death penalty, denying him such tests and executing him would deny Due Process, Equal Protection and access to the courts under the Fifth, Sixth, Eighth, and Fourteenth amendments to the United States Constitution and the corresponding provisions of the Florida Constitution. CONCLUSION AND RELIEF SOUGHT Based on the forgoing, the lower court improperly denied Mr. Jackson's 3.853 Motion for Postconviction DNA Testing. This Court should order that Mr. Jackson is entitled to DNA testing on the arm cast and should remand to the lower court for an evidentiary hearing to determine the location of the missing evidence, and, when located, conduct DNA testing on that evidence also. 15
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Reply Brief of Appellant has served electronically to Meredith Charbula, Assistant Attorney General, and sent via U.S. Mail to Etheria Jackson, DOC #072847, Union Correctional Institution, 7819 NW 228* Street, Raiford, FL 32026 on this day of September, 2012. Maria E. DeLiberato Florida Bar No. 664251 Assistant CCRC Email: deliberato@ccmr.state.fl.us Secondary: support@ccmr.state.fl.us Marie-Louise Samuels Parmer Florida Bar. No. 0005584 Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Dr., Suite 210 Tampa, Florida 33619 813-740-3544 813-740-3554 (Facsimile) Email: parmer@ccmr.state.fl.us Secondary: support@ccmr.state.fl.us Counsel for Petitioner 16
CERTIFICATE OF COMPLIANCE I hereby certify that a true copy of the foregoing Reply Brief of Appellant, was generated in Times New Roman 14 point font, pursuant to Fla. R. App. P. 9.100 and 9.210. Maria E. DeLiberato Florida Bar No.664251 Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Dr., Suite 210 Tampa, Florida 33619 813-740-3544 813-740-3554 (Facsimile) Counsel for Petitioner 17