IN THE SUPREME COURT OF FLORIDA
CASE NO. 84,686
PAUL WILLIAM SCOTT
STATE OF FLORIDA,
MOTION TO STRIKE RESPONSE TO APPELLANT'S
NOTICE OF SUPPLEMENTAL AUTHORITY
At 10:20 a.m., November 21, 1994, undersigned counsel received a
Response to Appellant's Notice of Supplemental Authority. In it,
the State abandons its position that Mr. Scott is not entitled to
an evidentiary hearing by going outside the record to contest
Mr. Scott's factual allegations. The Response contains misleading
statements and arguments 1). The Response should be stricken as
anauthorized and improper.
1) It has not been uncommon in this case for the State's representative
to misspeak. Counsel for the State has had to admit in each court she
has appeared litigating Mr. Scott's case during the past three weeks that
she mis spoke and stated something untrue. Before Judge Lupo in circuit
court, she represented that the California federal court considering
Mr. Scott's federal habeas petition had "today dismissed the petition"
(T. 11/2/94 hearing at 93). When Mr. Scott's counsel objected, counsel for the
State said, "I will supply the Court -- the California Attorney General's
Office will fax us something on that." Id. The next day, counsel filed
an affidavit admitting that her representation had been false.
Counsel also argued to Judge Lupo that Dr. Cuevas' new statement indicated
"the champagne bottle is consistent with having inflicted
on of the blows. Mr. Alessi received six serious blows to the head.
Three were fatal" (T. 11/2/94 hearing at 89). The State misrepresented
Dr. Cuevas' new statement which stated: "The 135 degree angle, to which I testified at trial, and the
photograph of a bloody circle at the crime scene would both be
consistent with a champagne bottle being the object used to strike
the fatal crushing blows" (App. 5).
Counsel for the State argued to Judge Lupo, "It came out at trial that
Kondian hit him with that champagne bottle. It also came out at trial that Kondian
cut his finger on the champagne bottle. This is not new. None of those things
are new" (T. 11/2/94 hearing at 89). Again, these were false statements
made by the State. When undersigned counsel asked for record cites, the
State's representative backed away from the assertions and did not
repeat them to this Court.
In California federal court, the State's representative filed an affidavit
indicating that the federal habeas should have been filed in Florida federal court where jurisdiction
was proper. When the federal magistrate later did enter a recommendation that the
jurisdiction was more properly in Florida federal court and Mr. Scott filed in Florida
federal court, the State's representative accused Mr. Scott of forum shopping.
In this Court, the State's representative asserted in her brief that
Mr. Scott had made an exculpatory statement for Mr. Kondian which was used at Mr.
Kondian's plea. However, at oral argument, the State's representative
conceded that she did not know what had been referred to at Mr. Kondian's
plea and that she knew of no statement.
The State asserts in this new Response: "Up until Tuesday, Scott had
not disclosed how he knew about Coffin's alleged statement to police"
(Response at 1). This is flatly false. Mr. Scott has pled and
maintained throughout the pending Rule 3.850 proceedings that he learned
from Mr. Coffin on August 11, 1994, what Mr. Coffin had told the police
in 1979. The State has not disclosed the contents of the statements
despite repeated Chapter 119 and Brady requests. 2)
The state falsely represents, "Scott now admits that Detective Collins
was the person who provided the information that Kondian may have spoken to
Coffin". (Response at 1).
Detective Collins did not disclose Coffin's statement to either Mr. Scott
or his counsel. In 1986, Detective Collins was dead.
2) Mr. Scott alleged in his Rule 3.850 that he had been diligent. He
presented affidavits from Paul Morris and Gary Hendrix explaining his
diligence. In 1986, David Roth provided Mr. Scott's counsel access to
Detective Collins' deposition where it was disclosed that reportedly Kondian
had talked to Coffin in March of 1979, six months prior to Mr. Scott's
trial. Neither Mr. Roth nor the State disclosed to Mr. Scott's
counsel the content of Kondian's statement to Coffin. It was only by
spending years looking for Coffin and finally finding him that Mr. Scott
learned the contents of that statement.
Moreover, in 1986, Mr. Scott alleged that trial counsel was ineffective for
not deposing Detective Collins and for not obtaining the deposition
Kondian's counsel conducted. The State responded that Detective
Collins testified truthfully and fully at Mr. Scott's trial and that
therefore Mr. Scott could not demonstrate any prejudice. However, the State
while making that argument knew that Kondian had confessed to Coffin and
that Coffin's identity was revealed in Detective Collins' deposition.
Undisputedly, Mr. Scott did not know the content of Kondian's
statement to Coffin. He did not learn of the contents of that
statement until he found Coffin because the State kept it a secret and
unavailable. The State's representation is flatly and totally false.
The State now for the first time since mr. Scott filed his
pending Rule 3.850 motion raises an argument about Mr. Scott's due diligence
in learning of the Brady violation. The State asserts:
Scott insists on representing to this Court what the State's position
is with regards to this Brady issue. He does so again in the Notice
of Supplemental Material, claiming that state (sic) has conceded that
collateral counsel has exhibited due diligence with respect to uncovering this evidence.
The State has conceded nothing with respect to the Brady allegation.
(Response at 3). The State fails to cite a single pleading or argument where it has up until now asserted
a lack of due diligence. In circuit court, the State did not contest due
diligence, arguing instead the exact opposite:
Mr. McClain said that the State is complaining that this is not a new
issue, this is not a new issue. Yes, we have said that, but we are also
saying this now (new) evidence. These two affidavits are not new evidence.
(T. 11/2/94 hearing at 87).
The State's representative says that she asserted due diligence at last week's
oral argument. "A point reiterated at oral argument to Justice
Shaw" (Response at 3). Undersigned counsel's recollection of the oral argument
is different. The State's representative indicated to Justice Shaw
that she had not contested due diligence because that would require
an evidentiary hearing. Surely, the tape of the argument will reveal
whose memory is accurate. More importantly, the question is whether
the State is now conceding the need for an evidentiary hearing after all.
Apparently, it is. Mr. Scott, under Lightbourne v. Dugger, 549 So. 2d
1364 (Fla. 1989), is entitled to an evidentiary hearing on due diligence
where the State contests it. However, Mr. Scott asserts that this Court should
not let the State play games with the Court by changing its position
whenever a wind shift is detected. If the State wished to contest
due diligence, it should have done so long ago.
Undersigned counsel would remind this Court that Mr. Scott pled,
Certainly to the extent that the State argues that somehow Mr. Barr's
unawareness of this evidence was due to his lack of diligence,
then Mr. Scott received ineffective assistance of counsel. Provenzano
v. State, 616 So. 2d 428 (Fla. 1993).
(Appellant's Brief at 30). if counsel was ineffective and the State
hid the proof of prejudice, the State should not be absolved.
The State's representative also falsely represented the following: "Justice
Anstead asked opposing counsel if the alleged Brady material, i.e., Coffin's statement,
Dixon's statement and the picture of the bloody circle, could have been known
before trial. Mr. McClain stated that it could not. The record indicates
otherwise as to both Robert Dixon and the bloody circle" (Response at 2)
Again, undersigned counsel's memory of the oral argument is different.
Moreover, in Mr. Scott's brief to this Court, undersigned counsel stated:
"Robert Dixon's name was disclosed to Mr. Scott's trial counsel but only with a
"last known address". (R. 1854) The State did not disclose a statement
from Mr. Dixon but merely implied Mr. Dixon was relevant only
to how Mr. Scott's whereabouts were ascertained" (Appellant's brief
at 23). The State's discovery response at trial specifically indicated that there were not statements
of Robert Dixon or any other witness to disclose (R. 1849).
The State also attached a police report concerning Robert Dixon
to its Response. This police report is not contained in the record. Since
the State is going outside the record to try refute Mr. Scott's
allegations, the State is conceding the need for an
evidentiary hearing. Moreover, the copy of this police report
attached to undersigned counsel's copy of the
response was illegible. See Attachment A. A legible copy is
attached. it demonstrates exactly what Mr. Scott is contending.
The report does not discuss Robert Dixon's statement that Kondian had tried
to recruit others to go, settled on Paul Scott as a last resort, and
afterwards yelled at him for running out. Even if this particular police report were disclosed, it does not refute
George Barrs' affidavit that he was not advised of Kondian's activities
and statement reported by Dixon to Detective Collins. 3). Thus, an
evidentiary hearing is required. As for the photograph of the ring of blood, the State's
attachment is not from the record and does not conclusively refute the affidavit from trial counsel
or the statement of Dr. Cuevas.
3) The police report the State has presented was not authored by Detective
Moreover, the State misrepresents what the document shows. It shows that the State
took the blood stain into evidence. See Attachment B. It
does not reflect that there is a photograph of the ring of blood.
Undersigned counsel has sought access to item 90, the blood stain. It is part
of his Chapter 119 claim. See Appellant's brief at 82. So far, The
State has refused to disclose it. Apparently, the State is now again conceding
an evidentiary hearing is required since it once again is presenting materials
not in the record to refute Mr. Scott's allegations. More importantly,
examination of these documents demonstrates that the State is
misrepresenting what the documents show. They do not refute
Mr. Scott's allegations. An evidentiary hearing is required.
Finally, as to Bernadine Bernard, the State argues: "This Court has
already determined that Bernard's testimony was not new and was available at trial.
Scott v. Wainwright, 433 So. 2d 974, 976 (Fla. 1983)." (Response at 3).
Undersigned counsel has searched that cite over and over but can
find no reference to Bernadine Bernard. What this Court said was:
Scott's request is denied because he has failed to demonstrate that the facts he now
relies upon were not known to him at the time of trial or were not
discoverable through the use of due diligence. The "new evidence"
that Scott wants to present at a new sentencing hearing relates to his
version of how the murder was committed. This is not "newly discovered"
evidence for purposes of coram nobis relief since the facts he how seeks to establish were
not unknown to him at the time of trial. By his own admission, he was
eyewitness to the murder. The testimony that he presented at his clemency
hearing, explaining what happened at the victim's home and the extent
of his participation in the crime, could just as well have been presented at
his trial. It is clear that all of the alleged facts were known to Scott at the time
of his trial. In fact, defense counsel, during the sentencing hearing, argued at length to the jury that
Scott was not the major perpetrator in the murder of Alessi and that his
participation in this capital crime was relatively minor.
Furthermore, we cannot say that this evidence even if it had been presented at
trial, would have conclusively precluded the sentence
of death as Scott contends. We hold that Scott has failed to demonstrate
facts legally sufficient to warrant the granting of his application.
Scott v. Wainwright 433 So. 2d at 976. Of course, in Scott v.
Wainwright, this Court applied the Hallman decision which was discussed
in Jones v. State 591 So. 2d 911 (Fla. 1991).
Moreover, the decision in Scott had nothing to do with a Brady
claim with regard to Bernadine Bernard. Her deposition was taken in 1983; it
was not in existence at the time of trial -- unless the State is now
confessing that is possessed an undisclosed statement of Ms. Bernard
which existed at the time of trial. Certainly, Mr. Scott has not been provided
with such a statement. (R. 1849).
WHEREFORE, Mr. Scott respectfully asks this Court to strike the State's
Response to Appellant's Notice of Supplemental Material.
I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished
by United States Mail, first class postage prepaid, to all counsel
of record on November 21, 1994.
Florida Bar No. 0754773
Chief Assistant CCR
1533 South Monroe Street
Tallahassee, Florida 32301
Attorney for Appellant
Copies furnished to:
Assistant Attorney General
1655 Palm Beach Lakes Boulevard
West Palm Beach, FL 33401-2299.