D. The 1991 Evidentiary Hearing
On March 7, 1991, Judge Tyson held an evidentiary hearing as ordered by the Florida Supreme Court. Judge Tyson only permitted Mr. Smith to present Ms. Lowe's testimony. Except for a proffer, the circuit court would not allow Mr. Smith to put in any corroborative evidence that Eddie Lee Mosley, the man Ms. Lowe's affidavit says she saw the night of the offense, was the man who committed this crime, and that Mr. Smith was not that man (P.C.-R. 27-47, 106-07). The proffered evidence included: a list of suspected Mosley victims, newspaper articles regarding Mosley, Dr. Frumkin's psychological evaluation of Mosley, Dr. Cohen's psychological evaluation of Mosley, Leslie Alker's HRS report on Mosley, Dr. Eichert's psychological report on Mosley, Dr. Koprowski's psychological report on Mosley, Cynthia Maxwell's deposition testimony regarding Mosley's sexual assault of her, Lisa Weisman's affidavit testimony regarding Mosley's sexual assault of her, an involuntary hospitalization order regarding Mosley, a motion appointing a mental health expert for Mosley, a Broward Sheriff's Office (B.S.O.) booking sheet regarding Mosley dated 5/19/87, a B.S.O. booking sheet regarding Mosley dated 5/17/84, a B.S.O. booking sheet regarding Mosley dated 4/30/82, a B.S.O. booking sheet regarding Mosley dated 4/12/80, a Ft. Lauderdale police report regarding Mosley dated 12/25/83, and Dr. Hathaway's testimony regarding Mr. Smith's eyesight.
Ms. Lowe's testified at the evidentiary hearing. Ms. Lowe unhesitantly testified that she still recalled very well the moment the man flagged her down on April 14, 1985 (PC-R. 50). Ms. Lowe became "convinced" that Mr. Smith was not the individual she saw on the night of the murder long before she gave her affidavit in 1989. Prior to trial, Ms. Lowe had never seen Mr. Smith in person. She had only seen a photograph of Mr. Smith in a photo lineup. When she saw Mr. Smith in the courtroom, she became "convinced" that Mr. Smith was the wrong man. At the evidentiary hearing, she testified:
Only thing I remember is when I walked into the courtroom . . . I seen Mr. Frank [Smith] standing up there. I had my -- they kept saying is that the man, but I had my doubts that was the man because the man I seen that night he was muscular, big and Mr. Frank [Smith] was not."
(PC-R. 65). Ms. Lowe testified that despite her doubts she identified Mr. Smith at trial as the man she saw (PC-R. 79). When asked why she didn't tell the court and jury that she made a mistake, she testified:
A. No, I couldn't feel like that. Because -- I couldn't. I was confused.
Q. Were you worried while you were testifying about whether or not Mr. Smith was the right person?
A. I was confused.
THE COURT: I didn't hear the answer?
THE WITNESS: Confused.
BY MR. MCCLAIN:
Q. Can you tell me as best you can what you are thinking? What was it that you were confused about?
A. That they saying they got the man. The man needs to be off the street. He's dangerous and they kept saying "this is the man," you just have to say "this is the man because he need to be off the street." And I was thinking about the little girl's mama, that she's going through this, that had happened with her daughter and everything. I was just confused.
Q. Did you feel a lot of weight on your shoulders?
A. Yes.
Q. When you were in the courtroom and you looked at Frank Lee Smith, did you have nagging doubts in the back of your head?
A. Yes.
* * *
BY MR. MCCLAIN:
Q. When you looked at Mr. Smith in the courtroom, what were you thinking?
A. What they told me, "the man was dangerous and he needs to be off the street."
Q. What were you thinking about his fitting the description?
A. He didn't fit that description that I sketched out.
Q. When you got off the witness stand, what did you think?
A. Terrible.
(PC-R. 79-80). Ms. Lowe's doubt about her identification of Mr. Smith was present long before 1989. At trial, she knew that Mr. Smith was not the man she saw -- that he didn't fit the description she sketched out. (Id).
She testified that when Mr. Walsh, an investigator with undersigned counsel's office, approached her on December 20, 1989 and showed her a photograph of Mr. Mosley she knew that:
This is the one that flagged me down in the car... [I]t brought moments back of the incident when it happened. ... A warm feeling came over me.
(PC-R. 52). When asked if she was certain Mr. Mosley was the man she saw, Ms. Lowe testified that she was "very, very, very, certain" (PC-R. 52; see also PC-R. 74-75 and 84).
Ms. Lowe testified that once the police arrested Mr. Smith, she was under "a lot of pressure" to identify him as the man she saw that night (PC-R. 63-64, 71). When questioned about her identification of Mr. Smith from the photo lineup, she testified:
They asked me is one of these the guy. I said no, but I said that his hair was like the guy I seen that night.
(PC-R. 71). Ms. Lowe admitted picking out Mr. Smith from the photo lineup but was emphatic that she told the detectives "that the hair was like the guy that [she] saw" (PC-R. 60).
Ms. Lowe explained that Detectives Scheff and Amabile pressured her to make an identification of Mr. Smith at the photo lineup (PC-R. 63). She testified that she was under:
"A lot of pressure ... from the police officer that came out there telling me that the man is dangerous and if he stays out there, he's going to do it to someone else. So I was up on a lot of pressure."
(PC-R. 62-63).
She explained further:
I only told them that the hair look like the man that did it. And when I say the hair that looks like the man that did it, they kept pushing me "Is this the man, Is this the man, Is this the man." ... They kept saying that.
(PC-R. 81).
Ms. Lowe also testified that she felt pressured by the prosecutor (PC-R. 63). She specifically recalled being pressured to say that the man she saw that night had a scar under his eye (PC-R. 53). Of course, Mr. Smith has a significant noticeable scar under his right eye (R. 706). Ms. Lowe said she was pressured to testify at trial about the scar but refused to do so (PC-R. 53). In fact, the circuit court judge at the evidentiary hearing, noticing the scar under Mr. Smith's eye, asked Ms. Lowe about this:
The Court: Ma'am, did you say the person that you saw did or did not have a scar?
The Witness: The man that learned in my car? No scar.
The Court: Did not have a scar?
The Witness: No scar.
(PC-R. 87-88).
Ms. Lowe testified that she felt pressure from not only the state but also from her neighborhood, people she knew, and friends (PC-R. 78). Moreover, Ms. Lowe was constantly thinking about the victim:
I know that little girl got killed. I know she had got killed and that's all that was going through my mind, the little girl got killed.
(PC-R. 86). As a result of all this pressure, Ms. Lowe was, in her words, "confused" when she finally saw Mr. Smith in person and realized he was not the man she saw that night (PC-R. 79). At the time of Mr. Smith's trial, Ms. Lowe was only 19-20 years old (PC-R. 77).
Ms. Lowe's hearing testimony left no doubt that at Mr. Smith's trial she realized that Mr. Smith was the wrong man. On December 20, 1989, this was only confirmed when she saw Mr. Mosley's photo and became convinced that Mosley was the individual she had seen at her home near the time of the homicide. The State questioned her about having been convicted of a theft charge subsequent to Mr. Smith's trial. Ms. Lowe openly admitted that she had been convicted of a theft charge (PC-R. 73).
In light of Ms. Lowe's recantation, the State attempted to establish that Ms. Lowe was merely confused and that she had, at the time of the pretrial investigation, been shown a photo lineup containing Mr. Mosley's photo which she failed to recognize. When asked if she had been shown a photograph of Mr. Mosley pre-trial she emphatically stated she would recognize Mosley if she saw him (R. 69), that "they didn't show me no picture of him," (PC-R. 70) and that "the only thing that was close to the guy that I seen that night" was the composite sketch they drew (PC-R. 70). Moreover, Ms. Lowe's testimony at the evidentiary hearing was consistent with her trial testimony that she had only been shown two photo lineups -- the one containing Mr. Smith's photograph and another containing a photograph of a previous suspect, a Mr. Freeman. When questioned about being shown photographs other than the photo lineup containing Mr. Smith's photograph, Ms. Lowe testified:
I do know that they did show me some more photographs because it was a guy in the photographs they kept questioning me about. I don't know him personally, but I knew him.
(PC-R. 69). Ms. Lowe testified at trial about this same photo lineup containing a photograph of Mr. Freeman, a man from the neighborhood that she recognized (R. 684). Although she recognized Mr. Freeman, she said that he was not the man she saw on the night in question (R. 684). At trial, as at the evidentiary hearing, Ms. Lowe testified about only those two photo lineups -- there was no third photo lineup.
In an attempt to establish that there was a third photo lineup containing Mr. Mosley's photograph, the State called the victim's mother, Mrs. McGriff. Mrs. McGriff's testimony concerning this "mysterious" photo lineup was confusing at best:
Q. At anytime did the police come to you in those days after your daughter was killed and show you photographs?
A. Yes.
Q. Do you remember how many times or how many photographs they may have showed you?
A. Oh, about two or three.
Q. Did they show you a large group of photographs or was it one at a time?
A. Yes, they showed me one at a time and then they showed me large size.
Q. Okay. And on any of those occasions, did the police officers show you a picture of Eddy Lee Mosley?
A. Yes.
Q. Was it in a group or single photo, do you remember?
A. It was in a group.
(PC-R. 113). On cross-examination, counsel attempted to clarify Mrs. McGriff's answer:
Q. Now, you indicated that they showed you two or three photos, or was that two or three they showed you?
A. They showed me about two or three photo -- Well, they asked me to look through the pictures.
Q. They gave you a couple of photos, gave them to you and asked you to look through them?
A. Uh-huh.
Q. And that was all the photos that the police ever showed you or did they show you more later, or do you remember?
A. No, I don't remember.
Q. Okay. Did they also show you -- I mean, if you don't remember just say you don't remember. I'm just trying to be sure. I understand what you're saying.
Do you remember, did they actually show you a line up at one point in time with about six pictures in it?
A. No, there wasn't no six pictures. It was like a photo book, do you know how you get a photo book?
Q. Yes.
A. I looked through the photo book and skimmed through to look in the photo book.
Q. So they showed you a photo book?
A. Yes.
Q. And it was a photo book with more than six pictures in it?
A. Yes.
Q. And when did they show you the photo book?
A. Oh, gee. I just don't remember, but I think right after - right after my baby's death, I think, I'm not for sure, right after. I'm not sure.
Q. You mean like the next day?
A. Yeah.
Q. And did they show you photo of Frank Lee Smith that day?
A. Did they show me?
Q. Yes.
A. No, I picked him out myself.
Q. In that book?
A. Yes.
Q. And that was the next day after your daughter's death?
A. Yes.
Q. Was Eddy Lee Mosley in that photo book?
A. Yes.
Q. Did the police specifically say "how about this guy?"
A. No.
Q. But you saw his photo in there?
A. Yes.
Q. Did you tell the police that that was not the person?
A. Yes.
Q. You just -- Did you -- As you went through the photo book, did you say "this isn't the person, this isn't the person?"
A. Yes.
Q. And then when you got to Frank Lee Smith you said "this is the person?"
A. Yes.
(PC-R. 118-121). Prior to the evidentiary hearing, neither she nor Detectives Scheff or Amabile ever mentioned Mrs. McGriff viewing photographs out of a photo book.
Moreover, their testimony has always been that Mrs. McGriff identified Mr. Smith from a photo lineup and not while perusing a photo book (R. 642, McGriff; R. 985, Scheff; R. 908 Amabile). At the evidentiary hearing, both Detectives Scheff and Amabile stated that Mrs. McGriff was shown a photograph of Mr. Mosley in a photo lineup and not a photo book (PC-R. 148, Scheff and 185-6, Amabile). Detective Amabile who sat through Mrs. McGriff's testimony at the evidentiary hearing admitted that her memory as to what transpired and when it transpired was different from his memory (PC-R. 198).
Although Mrs. McGriff, Detective Scheff, and Detective Amabile have different stories concerning how and when Mr. Mosley's photograph was shown to Mrs. McGriff, they all testified that she identified his photograph as Mr. Mosley and stated he was her cousin and not the man she saw that night. In fact, Detective Amabile testified that he remembered this specific photo lineup because Mrs. McGriff had stated that Mr. Mosley was her cousin. The problem with this testimony is that as with the testimony about the existence of a third photo lineup containing Mr. Mosley's photograph, their prior sworn testimony is in direct contradiction. At no time pre-trial or at trial did anyone identify Mr. Mosley as a relative of Mrs. McGriff -- and they were all asked whether any of her relatives were suspected of the murder. In answer to the direct question, the only relative the detectives ever identified pre-trial or at trial was Edwin McGriff, another cousin of Mrs. McGriff.
Detective Scheff, the lead investigator in this case, gave a very lengthy and detailed deposition covering in chronological order everything he did in this case. He never mentioned that Mr. Mosley was a serious suspect that they actively investigated. He did not mention that there was a third photo lineup containing Mr. Mosley's photograph. He specifically did not identify Mr. Mosley as a relative of Mrs. McGriff. After explaining that Mr. Freeman was eliminated as a suspect by Ms. Lowe, Mr. Davis, and Mrs. McGriff, the following colloquy occurred:
Q. Did you have, at this point in time, anybody in mind?
A. You mean, as a suspect?
Q. Yes.
A. Oh, no.
Q. How about any relative of the deceased, uncles, cousins?
A. We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female chid, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person that she had seen was not her cousin and that she was being truthful. It was my feeling that she was.
(Scheff deposition p. 44). Again at Mr. Smith's trial, Detective Scheff was asked about relatives and again he indicated that a cousin, Edwin McGriff, was the only family member who was a suspect (R. 1022-23). Detective Scheff testified that this cousin, Edwin McGriff, was never displayed in a photo lineup (R. 1024). Detective Scheff did admit at trial that Mr. Mosley was a suspect, but never said he was eliminated by all three witnesses through a photo lineup or that he was a cousin of Mrs. McGriff. In fact, Detective Scheff testified that he did not show a photo lineup containing Mr. Mosley's picture to any of the witnesses:
Q Was Eddie Lee Mosley ever a suspect in this case?
A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.
Q How about Jessie Smith?
A Jessie Smith is Eddie Lee Mosley under an alias name.
Q Lee Greely, G-r-e-e-l-y Smith?
A I don't know.
Q That's all I have.
A Spell it again?
Q G-r-e-e-l-y. Doesn't ring a bell?
A No.
Q The man called Gator Mouth ever a suspect in this case?
A Yes.
Q The man that went by the name of Gator Mouth?
A Right.
Q Was a guy by the name of Big John ever a suspect in this case?
A Yes. I wouldn't say they were suspects in the case. I would say they were people who were brought to our attention for one reason or another.
Q How about Edward Simmons, did you ever check with John Boucada of your department? He supposedly looks like Mr. Smith.
MR. DIMITROULEAS: I will object to counsel testifying and I'm objecting to the form of the question.
THE COURT: Objection sustained, may be rephrased.
Q (By Mr. Washor) Did you ever investigate Edward Smith?
A Edward Simmons?
Q Simmons.
A No, sir.
Q Never had any contact with Detective Boucada regarding him?
A No, sir.
Q Were any of these people ever shown to any of the witnesses in either a photo or live lineup, people whose names I just read off other than Freeman?
A Other than Freeman, no.
(R. 1024 - 1026).
At his pre-trial deposition, defense counsel specifically asked Detective Amabile if any of Mrs. McGriff's cousins were ever suspected of the murder. Detective Amabile responded that Edwin McGriff was the only cousin ever considered a suspect (Amabile Deposition at p. 44). Detective Amabile was asked this again at Mr. Smith's trial and again responded that no family members, other than Edwin McGriff, were suspects (R. 946). The same Detective Amabile testified in 1991 that he didn't remember much about the photo lineups except for the instance when Mrs. McGriff identified Mr. Mosley as her cousin:
Q. Do you recall what photo lineups were shown the witnesses? And let me clarify when I use the word "witnesses," I am referring to Dorothy McGriff, Chiquita Lowe and Gerald Davis?
A. Unfortunately I would have to answer yes because of hearing the prior [evidentiary hearing] testimony [of Mr. McGriff and Detective Scheff]. What I recall, I recalled it more than one photo lineup being shown. I know from testimony today it was also mostly the reason I stated to Mr. Zacks, that I recall Eddy Lee Mosley is - that's how I found out that he was related to Dorothy McGriff.
(PC-R. 185-86). Of course, this testimony is in direct contradiction with his pre-trial and trial testimony that the only relative of Mrs. McGriff who was a suspect in the case was Edwin McGriff, a cousin. Moreover, Detective Amabile, like Detective Scheff, testified at trial that none of the suspects, with the exception of Freeman, were displayed in a photo lineup:
Q There were a slew of other suspects in this case, weren't there, besides Mr. Freeman?
A A slew or --
Q More than one?
A Yes.
Q Was there a Carspelia (phonetic) Williams who was a suspect?
A His name was given to us.
Q Eddie Lee Mosley?
A Yes.
Q Jessie Smith?
A I don't recall that name.
Q Greeley (phonetic) Smith?
A Again, I don't recall that name.
Q Edward Calvin McGriff?
A Yes.
Q Was he related to the family at all?
A I believe so, yes.
Q A person by the name of Gator Mouth?
A Yes.
Q A person by the name of Big John who Detective Frost said in his report somebody identified a composite?
A Yes.
Q Were any of these leads followed up on?
A Yes.
Q Were they all followed up on?
A Yes, to the best of my knowledge with the exception of the two names I don't recall hearing.
Q What became of Big John?
A That I believe Detective Scheff and myself checked out and he did not fit the physical description at all.
Q Is that reflected in anywhere in your notes or reports or anything of that nature?
A No, that would be Detective Scheff's.
Q He should have it somewhere?
A He should.
Q Were any of these other people other than Mr. Freeman in the photographic display or in the live lineup shown to any other witnesses?
A No.
Q Did you investigate any of the family members backgrounds to see whether they were ever involved in this kind of thing before?
A I believe Edward McGriff.
Q Anybody else?
A No.
(R. 945-6).
In 1991 when Detective Scheff was asked if he had any written documentation in the homicide file reflecting the Mosley lineup he testified:
A. I don't think so. I might. I would have to look through the file.
Q. With the file that you brought, is there any indication in there of showing a photo of Eddy Lee Mosley to any of the witnesses?
A. The file is -- I just brought this so I could have some hope of remembering this stuff.
Q. In what you brought that you thought would help you, and with your memory, is there anything to indicate you showed a photo lineup containing Eddy Mosley?
A. No.
THE COURT: Showed who?
THE WITNESS: Eddy Lee Mosley.
MR. MCCLAIN: A photo lineup containing Eddy Lee Mosley.
THE COURT: To whom?
BY MR. MCCLAIN:
Q. To --
A. Anybody.
Q. Anybody. To these three witnesses that we've been talking about?
A. No.
(PC-R. 159-60)(emphasis added). Moreover, Detective Scheff had no explanation for this glaring contradiction between his pre-trial and trial testimony and his testimony at the evidentiary hearing:
Q. I'm going to hand you pages from your trial testimony. I have three pages to show you and starting with was Eddy Lee Mosely (sic) a suspect. If you can just read from there on until the middle of the third page [R. 1024-26].
A. I am sorry read to where?
Q. Let me show you.
A. Wait a minute, which is the first page?
Q. Eddy Mosely's on the first page.
A. Was Eddy Lee Mosely ever a suspect - Do you want me to read it out loud?
Q. You can read it to yourself.
A. Okay.
Q. In those three pages, does that help refresh your recollection as to your trial testimony?
A. Yes.
Q. You were asked out a series of suspects by the prosecutor --
A. Yes.
Q. -- if Eddy Lee Mosely was one of those suspects?
A. Yes.
Q. In fact, he read you a list of names and asked you for a response?
A. That's correct.
Q. At the end he asked you were any of those names he read to you were shown to the witnesses?
A. Yes.
Q. And you said other than Freeman --
A. Yes, I'm assuming that's accurate. I have no reason to not doubt it's accurate.
Q. Is that consistent with your testimony here today?
A. No it's not.
MR. MCCLAIN: I have nothing further, Your Honor.
THE COURT: Re-direct? Could you repeat that question and answer again that you just asked?
MR. MCCLAIN: Was that consistent with your testimony here today?
THE COURT: No, the last question?
MR. MCCLAIN: The question was, were any of these people ever shown to any of the witnesses in either a photo or live line-up (sic), people whose names I just read off other than Freeman. Answer, other than Freeman, no.
THE COURT: Go ahead.
MR. ZACKS: Nothing further, Judge.
(PC-R. 179-181).
At the conclusion of the hearing, it was decided that the State and Mr. Smith would simultaneously do post-hearing memoranda (PC-R. 205). Post-hearing memoranda were done (PC-R. 231-64).
On April 29, 1991, Assistant State Attorney, Paul Zacks, left a message for Mr. McClain, Mr. Smith's counsel to call Mr. Zacks. Subsequently, Mr. McClain returned the call. At that time, Mr. Zacks said that Judge Tyson had telephoned Mr. Zacks and discussed Mr. Smith's case. As a result of that discussion, Mr. Zacks was assigned to draft an order denying Mr. Smith relief. Shortly thereafter, Mr. Smith's counsel received via facsimile a draft order and an accompanying cover letter detailing the timetable Judge Tyson and Mr. Zacks had worked out.
After learning of the ex parte communication between Judge Tyson and the State, counsel for Mr. Smith filed a Motion to Disqualify Judge, requesting that Judge Tyson recuse himself from Mr. Smith's case because of the ex parte communication (PC-R. 265-66). Counsel for Mr. Smith also filed Objections to Draft Order, arguing:
On May 7, 1991, defense counsel received the State's draft of a proposed order denying 3.850 relief in the above entitled matter. The proposed order and its cover letter accompany this pleading. Defense counsel's understanding is that the Order was drafted by the State after Judge Tyson called Assistant State Attorney Paul Zacks and discussed the matter. Neither Mr. Smith nor undersigned counsel were privy to that discussion. Undersigned counsel had requested that any post-hearing discussions about the case not be ex parte and that such discussions be conducted with all parties present. Counsel further suggested that the discussions could be telephonic but that a court reporter should be on the line in order to put the discussions on the record.
(PC-R. 279). Judge Tyson did not rule on the Objections to Draft Order. On June 6, 1991, Judge Tyson denied the Motion to Disqualify (PC-R. 283), and, the next day, June 7, 1991, signed verbatim the State's order (PC-R. 284-87). Mr. Smith thereupon filed a notice of appeal.
On May 28, 1992, the Florida Supreme Court issued its opinion in Rose v. State, 601 So.2d 1181 (Fla. 1992), wherein the court reversed an order denying post-conviction relief because the Assistant State Attorney, Paul Zacks, had engaged in ex parte contact with the presiding judge in preparing a draft order denying all relief. When Mr. Smith filed his brief in the Florida Supreme Court, he relied upon the opinion in Rose v. State. The State refused to concede error, but instead filed a Motion to Get the Facts, in which it asked for a remand so that evidence could be heard regarding the ex parte contact. The Florida Supreme Court granted the motion and remanded.
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