CASE NO. 84,686








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 Collins.


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.

Martin McClain
Florida Bar No. 0754773
Chief Assistant CCR
1533 South Monroe Street
Tallahassee, Florida 32301
(904) 487-4376
Attorney for Appellant

Copies furnished to:

Celia Terenzio
Assistant Attorney General
1655 Palm Beach Lakes Boulevard
Third Floor
West Palm Beach, FL 33401-2299.