IN THE SUPREME COURT OF FLORIDA CASE NO. SC07-610 LOWER TRIBUNAL NO. 3D05-39 TRACY McLIN, CIRCUIT CASE NO. 94-11235 -vs- Appellant, STATE OF FLORIDA, Appellee. / APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA AMENDED JURISDICTIONAL BRIEF OF APPELLANT TRACY McLIN CHARLES G. WHITE, P.A. Counsel for Appellant 1031 Ives Dairy Road Suite 228 Miami, Florida 33179 Tel: (305) 914-0160 Fax: (305) 914-0166 Florida Bar No. 334170
TABLE OF CONTENTS Page TABLE OF AUTHORITIES............. ii STATEMENT OF ISSUES.............. iii STATEMENT OF THE CASE............. 1 SUMMARY OF ARGUMENT............. 5 ARGUMENT.................... 5 ISSUE I THAT JURISDICTION WITH THIS COURT CAN PROPERLY BE INVOKED UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.030(2)(A)(iv)........ 5 CONCLUSION.................. 10 CERTIFICATE OF SERVICE............. 11 CERTIFICATE OF COMPLIANCE........... 11 i
TABLE OF AUTHORITIES CASES Page Lee v. State, 899 So.2d 348 (Fla. 2d DCA) review denied, 914 So.2d 955 (Fla. 2005)....... 4, 6, 7, 9, 10 Light v. State, 798 So.2d 610 (Fla. 2d DCA 2001)....... 4, 6, 6, 9, 10 McLin v. State, 949 So.2d 1123 (Fla. 3d DCA 2007)....... 4 McLin v. State, 827 So.2d 958 (Fla.2002).......... 3, 7 McLin v. State, 685 So.2d 11 (Fla. 3rd DCA 1996)....... 3 RULES: Florida Rules of Appellate Procedure, Rule 9.030(2)(A)(iv)............. 4, 5 ii
STATEMENT OF ISSUES ISSUE I WHETHER JURISDICTION WITH THIS COURT CAN PROPERLY BE INVOKED UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.030(2)(A)(iv). iii STATEMENT OF THE CASE
McLIN was found guilty of first-degree murder and armed robbery. He was sentenced to life imprisonment following a jury trial. Oliver Menzies a/k/a Junior, testified that on January 25, 1994, he, McLIN, and Jose Saldana were driving a white Acura in Opa Locka, Florida, when McLIN stopped the car, exited with a gun, shot and robbed Pierre Mereus. No one was arrested immediately after the event. Jose Saldana was arrested for another robbery/shooting which had taken place the previous night and, which evidence established, involved the same white Acura and firearm. That victim lived. Menzies was arrested two weeks later after having been stopped in the white Acura by the police. He fled the scene, and after his apprehension, the police seized the murder weapon from the vehicle. Once both Menzies and Saldana were in jail, they began to meet together with visiting family members. Eventually, both of them gave sworn statements attesting to their role as eye-witnesses in this case and McLIN s guilt. McLIN s trial attorney sought to introduce as reverse Williams Rule evidence the prior night s shooting/robbery for which Saldana had been charged. There was a second individual involved in that robbery, and McLIN s trial attorney wanted to suggest that that person was Menzies, and that they were both conspiring to blame McLIN for this crime. The other witnesses against McLIN were family members: Menzies girlfriend and Saldana s mother. Menzies girlfriend, who went with
McLIN when Menzies was in jail, testified to an admission McLIN made while they were watching television. Saldana s mother, on the other hand, testified to a prior consistent statement made by Menzies where he had accused McLIN of committing the murder shortly after the event. Just before trial began, the State objected to the reverse Williams Rule evidence. After hearing argument, the Court excluded it. McLIN s trial counsel then made his opening statement. He presented the jury with what has been described as the rich drug dealer defense. He told the jury that McLIN was a drug overlord in Opa Locka who sold guns to robbers and made such obscene amounts of money in this criminal activity that he would not deign to kill a man for a pittance. This also served the purpose of explaining how the gun, a picture of which was in a Bible in McLIN s house, was given/sold to Menzies so he and Saldana could go forth to rob and kill. Clearly, according to the argument, Menzies was resentful of McLIN because of his power and wealth and was motivated to falsely accuse him of this murder. In the process of making this argument, a horrific picture of McLIN was presented by his attorney to the jury. After hearing this opening statement, the State withdrew its objection to the reverse Williams Rule evidence. The attorney declined to pursue that evidence despite its consistency with the defense he had just presented to the jury. After McLIN s conviction and sentence was affirmed on direct appeal by the
Third District Court of Appeal, McLin v. State, 685 So.2d 11 (Fla. 3d DCA 1996), McLIN filed a Motion for Post-Conviction Relief Pursuant to Rule 3.850 alleging (1) The rich drug dealer defense was an unreasonable strategy and constituted ineffective assistance of counsel, and (2) That Saldana was available as a witness to McLIN s innocence. An evidentiary hearing was limited to the ineffective assistance of counsel claim. That claim was rejected. On appeal to this Court, the summary denial of the newly discovered evidence claim was reversed. McLin v. State, 827 So.2d 948 (Fla. 2002). In reversing the case for a new evidentiary hearing, the Court stated: 827 So.2d at 958. Moreover, in this case the evaluation of the newly discovered evidence claim will be intertwined with this ineffective assistance of counsel claim because if Saldana testifies consistently with his affidavit and the testimony is determined to be credible, the reverse Williams Rule evidence would establish that it was Menzies and Saldana who the night before the murder in question used the murder weapon to commit a robbery. A cumulative analysis would thus be necessary on remand in evaluating the prejudice prong of the ineffective assistance of counsel claim. Saldana did testify at the new evidentiary hearing. He testified consistent with the affidavit he had signed back in 1996. He went into more detail regarding the shooting the night before, and put Menzies squarely in the prior night s shooting. He also testified that Menzies shot and killed Mereus, and McLIN was
not even present. If the jury hearing the matter accepted Saldana s testimony as true, then McLIN would most probably be found not guilty. Nonetheless, the trial concluded that Saldana s testimony was unbelievable. The 3.850 Motion was denied. McLIN filed an appeal. On February 21, 2007, the Third District Court of Appeal affirmed the trial court s Order. McLin v. State, 949 So.2d 1123 (Fla. 3d DCA 2007). This Opinion was originally filed per curiam. After consideration of McLIN s Motion for Rehearing, the Third District invited him to seek Florida Supreme Court review. McLIN seeks jurisdiction before this Court under Rule 9.030(2)(A)(iv) because of a direct conflict between its decision and Lee v. State, 899 So.2d 348 (Fla. 2d DCA 2005), and Light v. State, 796 So.2d 610 (Fla. 2d DCA 2001), and this Court s prior ruling. SUMMARY OF ARGUMENT When considering the merits of a Motion for New Trial Based Upon Newly Discovered Evidence, the trial court s credibility determinations are not without
limits. The impact of the newly discovered evidence on the jury should be the focus of the inquiry rather than the subjective view of the trial judge. The standard should be analogous to one utilized when evaluating ineffective assistance of counsel for failure to have called defense witnesses. ARGUMENT ISSUE I THAT JURISDICTION WITH THIS COURT CAN PROPERLY BE INVOKED UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.030(2)(A)(iv). There is no doubt that Saldana s testimony would exonerate McLIN if believed. It would also corroborate every aspect of the defense McLIN presented at trial. McLIN s claim that Menzies and Saldana used the white Acura and the same gun to commit two back-to-back shootings, one of which resulted in a death, and then sought to pin the blame on McLIN was vindicated by Saldana s willingness to come forward. The conspiracy between them which involved recruiting family members to corroborate their lies was exposed and supported by Saldana s direct knowledge and complicity. This explained Saldana s sworn statements which were cited by the State and inconsistent with his present testimony. It also explained the letter which McLIN had sent Saldana which had been used to justify the original summary denial of McLIN s claim. Is it really so unreasonable that this web of false accusations could be woven and used to ensnare
a rich drug dealer revealing the envy and resentment possessed by both of them against McLIN at the time of their arrests? Was it not reasonable that Saldana went along until he realized that Menzies was not going to help him get out of jail, but only himself, and then Saldana would reveal the truth? McLIN contends that the trial judge s credibility determination was inappropriate in light of Lee v. State, 899 So.2d 348 (Fla. 2d DCA 2005), and Light v. State, 899 So.2d 348 (Fla. 2d DCA 2005). In Lee, the Second District set limits on subjective credibility decisions a trial court is allowed to make when determining whether newly discovered evidence would have a reasonable probability of yielding a different result. Citing Light, the Court compared the role of the trial court on post-conviction review in a newly discovered case with ineffective assistance of counsel based upon the failure to investigate and call eyewitnesses. The Court stated: 899 So.2d at 354. Even though the appellate court must give the factual findings of the trial court great deference, the trial court s credibility determinations in such cases are more limited... that is, the judge is not examining simply whether he or she believes the evidence presented as opposed to contradictory evidence presented at trial, but whether the nature of the evidence is such that a reasonable jury may have believed it. Both the trial court and the Third District in its Opinion held that the Mandate from this Court rendered the principles enunciated in Lee and Light
inapplicable to this case. On rehearing, the Third District stated: This Court believes it has correctly interpreted McLin v. State, 827 So.2d 948 (Fla. 2002). If Appellant believes that is not so, then Appellant may seek Florida Supreme Court review on the theory that this Court s decision is in conflict with the Florida Supreme Court s McLin decision, or the Second District decisions in Lee v. State, 899 So.2d 348 (Fla. 2d DCA) review denied, 914 So.2d 955 (Fla. 2005), and Light v. State, 796 So.2d 610 (Fla. 2d DCA 2001). In its Mandate, this Court had required the interweaving of Saldana s testimony with the ineffectiveness claim when determining prejudice. Instead, the trial court ignored Lee and Light and limited its ruling to a subjective credibility assessment. For instance, Saldana s refusal to discuss his testimony with Detective Anne Bogen and the prosecutor when they confronted him the first night he arrived at the Dade County Jail from State prison was argued as a reason to disbelieve him. He was chided for having spoken too softly, or haltingly. Saldana supposedly struggled for answers and often contradicted himself without details given. All of these observations were highly subjective, and were based upon the rejection of the notion that Oliver Menzies was able to game the system and engineer the conviction of an innocent man for murder. The Judge who heard Saldana s testimony did not preside over the trial. Consequently, that Judge did not hear Menzies testimony. Menzies had been believed by the jury based upon a combination of his girlfriend, Saldana s mother, the failure to have presented the reverse Williams Rule evidence and Saldana s
silence. Saldana s testimony had to create some doubt as to the integrity of the State s case. Whatever hypothetical sense of fear might have motivated Saldana back in 1996 in response to a letter sent him by McLIN the year before surely could not have endured over the seven and one-half years that transpired before he finally testified in open court. Of course, the same judge who had such a problem with Saldana s testimony regarding the instant case had no trouble accepting his admissions to the shooting which had occurred the previous evening, and for which he was serving a prison sentence. If the Court had interwoven the newly discovered evidence with the ineffective assistance of counsel claim as required by the Mandate, the analysis would have been much different. The reverse Williams Rule evidence linking the white Acura and the murder weapon to the previous night s shooting/robbery was based upon that victim s testimony and fingerprints. Saldana s testimony corroborated the physical evidence, and would have been most likely considered credible by a jury. His testimony and the conspiracy would have corroborated the cross-examination of the State s witnesses at trial which suggested its existence. Saldana was a criminal, and subject to impeachment on cross-examination. Why does a convicted felon become incredible when called as a defense witness, yet, when his testimony is brought by the State pursuant to a substantial assistance agreement, his testimony can stand alone to condemn a man?
The Second District in the Lee and Light cases attempted to address these issues. When newly discovered evidence comes to light, it is just not enough for a Judge to decide that a jury does not have the right to hear the testimony and evaluate its credibility because of that judge s subjective beliefs. Deference to the Judge s factual findings must be limited by a consideration of the impact that testimony would likely have at trial. What could be more critical than the testimony of an eye-witness to say that the person serving a life sentence for murder was not even present, and his chief accuser was responsible? In addition to reviewing whether the trial court complied with the Mandate from this Court, the Court needs to decide if Lee and Light are correct statements of the law. If they are, then the Third District s decision below is wrong and he should receive a new trial. CONCLUSION Upon the arguments and authorities aforementioned, Appellant requests this Court grant him a new trial. Respectfully submitted, CHARLES G. WHITE, P.A. Counsel for Appellant
1031 Ives Dairy Road, # 228 Miami, FL 33179 Tel: (305) 914-0160 Fax: (305) 914-0166 Florida Bar No. 334170 CHARLES G. WHITE, ESQ. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 24 th day of May, 2007, to: LINDA KATZ, ASST. ATTORNEY GENERAL, Attorney General s Office, 444 Brickell Avenue, Miami, FL 33131.
Respectfully submitted, CHARLES G. WHITE, P.A. Counsel for Appellant 1031 Ives Dairy Road, # 228 Miami, FL 33179 Tel: (305) 914-0160 Fax: (305) 914-0166 Florida Bar No. 334170 CHARLES G. WHITE, ESQ. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Jurisdictional Brief of Appellant was typed in Times New Roman 14. CHARLES G. WHITE, P.A. Counsel for Appellant CHARLES G. WHITE, ESQ.