A. The original trial proceedings.
On May 9, 1985, Frank Lee Smith was indicted for first-degree murder, sexual battery, and burglary in the Seventeenth Judicial Circuit, Broward County, Florida. Mr. Smith was tried in January 1986 and convicted on all three counts (R. 1252). The Florida Supreme Court has noted the jury in this case had some difficulty in reaching a guilty verdict:
Of the witness identifications presented at trial, that of [Chiquita] Lowe clearly was the most credible. After the jury had deliberated for five hours, it requested that it be permitted to rehear Lowe's testimony. The court declined. One hour later, the jury repeated its request. The court acceded. Two and one-half hours later, the jury rendered its verdict.
Smith v. Dugger, 565 So. 2d 1293, 1296 (Fla. 1990).
After a one-day penalty phase, the jury recommended a death sentence (R. 1364). On May 2, 1986, Circuit Judge Robert Tyson sentenced Mr. Smith to death (R. 1440). The Florida Supreme Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182 (Fla. 1987). The United States Supreme Court denied certiorari. Smith v. State, 485 U.S. 971 (1988).
Mr. Smith was convicted based on the testimony of three "eyewitnesses" -- none of whom actually saw the crime occur. The victim's mother, Dorothy McGriff, saw a man outside her house just before she found her daughter. Chiquita Lowe testified that a man flagged down her car near the victim's house on the night of the crime and asked her for money. Gerald Davis was walking on the victim's street on the night of the crime when a man approached him and offered him drugs. There was absolutely no physical evidence linking Mr. Smith to the crime or the crime scene -- no hair, no fingerprints, no blood, no fibers matching Mr. Smith were found.
The Florida Supreme Court noted in 1990 that of the three eyewitnesses, Chiquita Lowe "clearly was the most credible." Smith, 565 So. 2d at 1296. The Court specifically noted that Dorothy McGriff "could not identify [the man's] face. She later identified Smith based only on his shoulders." Id. at 1295. Of Gerald Davis, the Court observed that "[he] could not remember `how the guy looked.' He testified that Smith looked like the man but he could not identify him positively." Id.
On April 14, 1985, eight-year-old Shandra Whitehead was raped and murdered in Ft. Lauderdale, Florida. The crime occurred between 10:30 or 10:40 p.m., when Shandra's aunt checked on her and her brother Reginald (R. 608), and 11:30 p.m., when Shandra's mother arrived home from work and found her daughter (R. 635). Ms. McGriff testified that as she pulled her car into the driveway that night, she saw a man at the side of the house reaching in through a window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of the car, grabbed a slingblade, and chased the man away from the house (R. 638). The man ran from Ms. McGriff and jumped over a chain-link fence into the backyard (R. 639). Ms. McGriff then went into the house where she found her daughter (R. 641).
In addition to Ms. McGriff, the police found two witnesses whom they believed saw the man who raped and killed Shandra Whitehead -- Gerald Davis and Chiquita Lowe, two teenagers who lived in the victim's neighborhood. Mr. Davis testified that on the night of the murder he was out walking at about 9:30 or 10:00 p.m. when a man called to him from the empty field across the street from Shandra's house (R. 745-46). As Mr. Davis continued walking, Chiquita Lowe drove up to him and stopped to talk (R. 747). After Ms. Lowe drove away, the man ran to Mr. Davis; he told him that he had just moved from New York, offered him drugs, and made a sexual proposition (R. 748). Mr. Davis testified that he "paid him no mind because [he] didn't want to be bothered." (R. 749).
Chiquita Lowe testified that at about 10:30 p.m. she was driving down Shandra's street when a man came out of Shandra's yard and flagged her down; the man approached the car, leaned into the driver's side window, and asked for money (R. 668-69). The man left when Ms. Lowe told him that she had no money (R. 669). Ms. Lowe continued driving and stopped about a minute later to talk to Mr. Davis (R. 673).
On April 17th, Mr. Davis and Ms. Lowe assisted the police in the creation of a composite sketch of the suspect (R. 675, 752). Detective Amabile testified that Ms. McGriff did not participate in drawing the composite sketch because Ms. Lowe and Mr. Davis "had more of an eye for detail" and because Ms. McGriff was "emotionally distraught" and was "a simple woman and could not articulate what she was trying to tell us" (R. 886-87). Detective Scheff testified that Ms. McGriff did not participate in creating the composite because he was "fairly certain" that she had seen the same man as Lowe and Davis; he also agreed that Lowe and Davis "were much more articulate than she was." He explained that "[t]he ability to do a composite depends upon the witness' ability to visualize the person." (R. 969). Before the composite sketch was distributed in the neighborhood, it was shown to Ms. McGriff who, according to Detective Scheff, "gave . . . a very positive reaction." (R. 971).
Mr. Smith was arrested outside his home on April 18, 1985 (R. 855). Detective Scheff had received a call from Ms. Lowe regarding a man who had come to her house with a shopping cart trying to sell a television (R. 971). Detective Scheff testified at trial and in his deposition that Ms. Lowe spoke to the man with the television and immediately recognized him as the man she saw near the crime scene (R. 1031-33). Detective Scheff explained that Ms. Lowe believed that the man had used the television as a ruse to get to her because he somehow knew she was a witness in this case (R. 1033). However, Ms. Lowe testified that when the man came to her house with the television, she was asleep (R. 676). Her family members spoke to the man with the television, saw the composite sketch, and became convinced that he was the same man (R. 677-78). Ms. Lowe looked out a window and saw the man walking away through an alley across the street from her house (R. 677). Mr. Smith was arrested several hours later. He was never seen by the police with either a shopping cart or a television (R. 856).
The defense strategy at trial was to challenge the three witnesses' identifications of Mr. Smith and to suggest that the police had not properly eliminated other suspects. As the Florida Supreme Court noted, the testimony of Ms. McGriff and Mr. Davis identifying Mr. Smith was extremely weak: Ms. McGriff, though positive about her identification, admitted that she did not see the man's face, and Mr. Davis, who reluctantly identified Mr. Smith, repeatedly told the police he did not remember what the man looked like. Assistant State Attorney William Dimitrouleas' closing statement demonstrates that the State had only one strong witness who could identify Mr. Smith. Mr. Dimitrouleas told the jury:
I don't care how much Gerald Davis' testimony was attacked, how much his identification is attacked, there has never been any question as to the fact that there was a weird strange guy that was talking to Gerald Davis that evening and what he said was bizarre.
(R. 1156). Mr. Dimitrouleas then bolstered Mr. Davis' identification and encouraged the jury to overlook his inconsistent statements and hesitation by reassuring the jury that he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also reassured the jury that Ms. McGriff's identification of Mr. Smith based only on his shoulders is reliable because Mr. Smith has a "distinctive" upper body (R. 1160).
On April 15, 1985, Ms. McGriff gave the following description of the man to the police: "medium build, heavy in the chest, lower haircut, black man, dark skin with jeans, pair of brown suede shoes, orange T-Shirt with writing across the chest." (R. 650). Ms. McGriff testified that when she gave her first statement to the police she did not know what the man looked like (R. 651) and that she told the police she would not be able to recognize the man's face (R. 658, 663). At her deposition, Ms. McGriff testified that she could not describe the man's face (R. 655). Ms. McGriff testified that she only saw the man for a couple seconds (R. 651-52). She explained:
Q Isn't it true you weren't actually paying too much attention to the man itself? You were basically interested in getting him away from your window?
A That is true.
Q Isn't it true when the person turned his face around it was flashing so quickly you didn't get a good look to see whether he was wearing glasses or not?
A That's right.
Ms. McGriff explained how she identified Mr. Smith from the photographic line-up:
Q (By Mr. Washor) You didn't get a good look at his face, isn't that correct?
Q Isn't it fair to say there was nothing about this person's face that stuck out in your mind at all because everything happened in a flash?
A Pardon me?
Q Nothing about this person stuck out in your mind because everything happened in a flash?
Q Isn't it also fair to say everything was dark from this person's head down to his shoulders?
Q But from his shoulders down, you can describe his clothing because the light was shining on the clothing; isn't that correct?
Q Wouldn't it be fair to say you picked that picture of Mr. Smith based upon his shoulders?
Q You couldn't identify his face, right?
Q If I showed you a picture of his face, you couldn't tell me whether that was the man or not; correct?
A Yes, from his shoulders.
Q Yes, I'm correct. If I show you a picture of the face of the man you couldn't tell me?
Q You could not, correct?
Q Isn't it true that you couldn't see the person's face at all, describe it, because it was just a flash that you saw?
(R. 655-56). Although Ms. McGriff testified that she identified Mr. Smith from his shoulders, his shoulders are not visible in the photo line-up which includes only Mr. Smith's face and neck.
Mr. Davis gave the following description to the police: "maybe six feet, a hundred and sixty, hundred seventy pounds, like muscular, chubby stomach, really couldn't tell, it was dark and he had a beard that was very tacky, like he did not keep it up and kinky hair." (R. 766). Mr. Davis testified that he was trying to avoid the man: "I didn't really want to be bothered with him because I did not know the guy. . . . I was like paid him no mind because I didn't want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis explained that he did not get a good look at the man because the streetlights were out (R. 773), he was ignoring the man and hoping he would go away (R. 777), he only looked at him for a few seconds (R. 778), and he "was never looking at him directly." (R. 776). Mr. Davis tried to explain his numerous inconsistent descriptions:
What I'm saying, I said it was dark. I was trying to avoid the guy. I don't remember exactly.
(R. 777). Mr. Davis told the police that nothing about the man stuck out in his mind and that he was unsure whether he would be able to recognize the man (R. 772, 778).
Mr. Davis could not identify Mr. Smith from the photo line-up that was shown to all three witnesses and insisted on seeing a live line-up before he would make an identification (R. 1051). Mr. Davis was uncomfortable with his identification of Mr. Smith from the live line-up because, as he told Detective Scheff, Mr. Smith did not look as large as the man he saw on the night of the crime; Mr. Davis explained that when he voiced his concern about Mr. Smith's size, the police "said to me that the reason it's like that because all the guys are between six one and six feet and that is why they all seem the same size." (R. 757). After being reassured by the police, Mr. Davis identified Mr. Smith.
Detective Scheff lied to Mr. Davis: the men in the live line-up were not all between six feet and six one. Detective Scheff tried to claim that the men were "[a]bout six feet tall, as close as we could get. I think one was six feet tall, all appeared to be the same." (R. 1048). However, on cross-examination, he was forced to admit that one man was five feet ten inches tall and another was only five feet nine inches tall (R. 1050). Mr. Smith stood between the two shortest men in the line-up (R. 1050). Detective Scheff refused to accept responsibility for the varied heights of the men in the line-up:
I want to say this to you, Mr. Washor, we did not measure these people. I'm basing the physical description on what they are telling me. If they are correct, if they know their height, then that is the correct height. If they are in error, then these figures are going to be in error.
(R. 1049). Detective Scheff claimed that he "tried to get as many people that physically resembled [Mr. Smith] as possible," but he was forced to admit that two men were obviously shorter than the others (R. 1049). Detective Scheff also admitted that none of the men in the line-up weighed more than one hundred and eighty pounds although the descriptions of the suspect in this case all indicated a weight heavier than that (R. 1050). Detective Scheff also agreed that three of the men in the line-up were substantially younger than Mr. Smith: by fourteen, seventeen, and thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith was the oldest and the tallest man in the line-up and that he was situated between the two shortest men (R. 942).
Mr. Davis also testified that the police pressured him to make an identification and used suggestive tactics. During Mr. Davis' first statement to the police, he said in response to their questions that the man did not have any scars on his face (R. 769). However, during his second statement, Mr. Davis said that the man had a scar on his cheek (R. 788). Mr. Davis explained why his description regarding this detail changed:
Q What, if any, recollection do you have regarding whether the fellow had any scars?
A I don't remember.
Q Do you recall having a conversation with the police or in a deposition later on about scars?
Q Do you recall what that conversation was?
A It was, did he have a scar. I said, I think so.
Q Would that have been based on something that you were remembering or something that the police had told you or do you know?
A Something that they were telling me.
Q You don't have any recollection of the scar?
A No, I don't remember a scar.
(R. 757-58). Between Mr. Davis' first and second statements, Mr. Smith was arrested. The police, noticing that Mr. Smith has a scar on one cheek, realized that they needed to alter Mr. Davis' description. As Mr. Davis explained, his revised description of the scar on the man's cheek was based "[o]n something that [the police] were telling me." (R. 758). Mr. Davis was clearly confused at the trial when he tried to explain his inconsistent statements regarding the scar: "I probably said scar at one time but I probably said he didn't have any scars. He didn't have any scars." (R. 769).
Detectives Scheff and Amabile were also forced to explain Mr. Davis' inconsistent statements regarding whether the man he saw on the night of the crime had a scar. Detective Amabile initially confirmed Mr. Davis' memory of his first statement to the police when he said that the man had no facial scars (R. 925). During redirect examination, Detective Amabile changed his testimony:
Q Did you all come out point blank and say, did the guy have any scars?
Q What exactly was Gerald Davis asked?
A He was asked if he had any scars, marks, tattoos, missing gold teeth. It was all one sentence that was asked.
Q What was his response to the whole line of things?
Q Now when he said no, did you catch that he was saying no to scars?
Q Had he previously told you about a scar?
A Prior to taking a taped statement is when he told us about the scar.
On cross-examination, Detective Scheff clearly became defensive when Mr. Smith's attorney asked about Mr. Davis' description of the suspect regarding the scar:
Q I believe on your direct examination when you said when speaking to Davis during this first statement, that he stated that the man had a scar on his face?
A That's correct.
Q Are you positive about that?
Q Would you like to refresh your memory at all?
A No, sir.
Q Do you remember Mr. Davis saying anything contrary during your conversation with him, your taped conversation with him?
A Well, I know I believe I know what you are referring to.
Q What am I referring to?
A You're referring to the question in which he responds with a, no, to the question in reference to scars and he responds with a negative and says, no, but I believe that was my fault and not his.
Q Did he or did he not say that?
A If you want to refer to the question, I'll show you what I'm talking about. I know what you are talking about.
Q The first statement, page five, was there anything about him you remember, anything like missing teeth, anything that stands out in your mind, scars he might have had. And his answer, no.
A That's correct.
Q He did say no?
A Yes, but actually if you take a look at that question I have really asked him four questions and unfortunately if you are asking me why this happened, I can only --
Q I'm asking you what he said?
A He said no on the tape.
Q But it's your testimony that when he was off the tape he said, yes?
A That's correct.
(R. 1013-14). Mr. Davis said on tape that the man had no facial scars. Because this description is inconsistent with Mr. Smith's appearance, Detective Scheff claimed that off the tape Mr. Davis said the man did have a facial scar. Although Detective Scheff admitted that a facial scar would be "an important factor" to use in identifying a suspect, he did not think that Mr. Davis' untaped description of the scar was important enough to be included in his handwritten notes (R. 1014-15).
Mr. Davis testified at his deposition that the police were also giving him hints and speaking in a suggestive manner when they showed him the photo line-up (R. 786). When he viewed the live line-up, the police instructed him to pick out the person who "looks like" the man he saw near the crime scene; they did not tell him to pick only the man he actually saw (R. 789). In addition, Mr. Davis was shown a picture of Mr. Smith immediately before he viewed the live line-up (R. 789, 797-98). At his deposition, Mr. Davis testified that the police instructed him to pick out the man who looked most like the man in the picture he had just been shown (R. 790).
Mr. Davis admitted that he was unsure of his identification but that he felt compelled by the police to make an identification:
Q Isn't it true you can't honestly swear to me right now that the man you picked out in the live line-up is the same man you saw that night?
A No, I can't say he is exactly the same guy but he looks like the guy.
Q My question is: You can't honestly say that is the same man, can you?
Q But the police had you fill out a form, correct, to indicate that you picked out number five or whoever?
Q And didn't you keep on saying you weren't sure, only that he looks like the guy?
Q Isn't it true that if the guy came up to you right now you couldn't say whether it was the guy you saw on the street or not?
Q Why did you identify Mr. Smith?
A I identified him as the guy I picked out of the line-up and the guy I talked to but - which I have been saying from the beginning, I don't remember how the guy looked.
Q Didn't you feel compelled by the police in the live line-up to pick somebody out?
Q Isn't it true that the man you picked out in the live line-up, Frank Smith, was not as big as the guy you saw on the street?
Q That's true, isn't it?
Q Didn't you keep saying to the police, I don't know if this is the guy and didn't they keep saying to you, don't feel that you are going to send an innocent man to jail in an effort to get you to stick to your story?
Q Wasn't it apparent to you that the police wanted you to make an identification?
(R. 792-94)(emphasis added). Mr. Davis also testified that the police did not record his statements when he told them he was unsure of his identification; the only statement that was taped was his reluctant agreement with the detectives that Mr. Smith was the man he saw near the crime scene (R. 795).
Detective Scheff admitted that after choosing Mr. Smith from the line-up Mr. Davis "began to say that he wasn't sure that the person he had picked was the same person he had seen that night." (R. 991). Detective Scheff offered his own opinion about Mr. Davis' equivocation:
Well, it became clear that it was not the identification he was having a problem with but it was his testimony. The fact that he was going to have to appear in court, that he was reluctant to.
(R. 992). Despite Detective Scheff's opinion that Mr. Davis was a reluctant witness, his inconsistent statements and hesitation about the identification of Mr. Smith were caused by his doubts that Mr. Smith was the man he saw on the night of the murder.
Because of Mr. Davis’ hostility towards the State and allegations of police misconduct, Assistant State Attorney Dimitrouleas requested that Mr. Davis be called as a court witness:
Based on his changing his testimony from the sworn statement to the police to what he said on deposition. I can't vouch for his credibility. He's saying basically now, before he made the live line-up identification that the police showed him a photo line-up, again, which they emphatically deny. Contrary to what he said in the sworn statements he's positive he's now saying, all he can say is the guy looks like the guy.
(R. 742). Over defense objection, the court granted the State's request thereby allowing the State to challenge Mr. Davis’ claims of police misconduct in getting him to identify Frank Lee Smith.
Chiquita Lowe was the State's strongest identification witness at Mr. Smith's trial. She identified Mr. Smith as the man she saw on the victim's street on the night of the crime (R. 707). However, several aspects of Ms. Lowe's testimony reveal that, like Gerald Davis, she was manipulated by the police. Most telling, Ms. Lowe testified that the man she saw had a droopy eye "like it was weak. It needed glasses." (R. 683). Ms. Lowe and Mr. Davis testified that the man they saw was not wearing glasses (R. 696, 764). Ms. Lowe told the police about the droopy eye, and the composite sketch clearly indicates that both she and Mr. Davis observed this distinctive characteristic. This description presented two problems for the police after Mr. Smith's arrest: first, Mr. Smith does not have a droopy eye, and second, Mr. Smith is legally blind and cannot function without very thick glasses (See Dr. Hathaway testimony first proffered in 1991). Ms. Lowe was coached by the police to offer her inexpert opinion about the man needing glasses in an attempt to reconcile her identification of Mr. Smith with her testimony about the man's droopy eye and lack of glasses.
Ms. Lowe's testimony was also inconsistent regarding the clothing worn by the man she saw on the night of the crime. The police found a blue windbreaker in a truck across the street from the victim's house (R. 962). Apparently, the police wanted to link the windbreaker to the crime although it was of no evidentiary value. Ms. Lowe testified that the man she saw on the night of the crime was wearing a blue windbreaker (R. 682). However, in her initial statement to the police, Ms. Lowe said she was unsure what the man was wearing, but thought she may have seen a white shirt or a white shirt with red stripes (R. 690). Ms. Lowe never mentioned a blue windbreaker to the police (R. 698).
Ms. Lowe's trial testimony also omitted an important detail from her initial description of the man she saw. She told the police that the man had big arms and a big chest (R. 688). Ms. Lowe initially denied this statement because when she viewed Mr. Smith in court she realized that he did not match the description. Finally, Ms. Lowe, like Gerald Davis, told the police that the man she saw did not have any scars on his face (R. 706-07). Ms. Lowe admitted at Mr. Smith's trial that he has a scar on one cheek (R. 707).
In addition to challenging the three witnesses' identifications of Mr. Smith, defense counsel also suggested that the police had not sufficiently eliminated other suspects. Detective Scheff testified that he investigated two other men as suspects: Arcy Nealy Williams was eliminated because he had an alibi (R. 963-64), and James Freeman was eliminated because the witnesses did not choose him from a line-up (R. 965-66). Detective Scheff also testified that Edwin McGriff, Eddie Lee Mosley, "Gator Mouth," and "Big John" were suspects (R. 1022, 1024-25).
Detective Scheff testified that other than Freeman, no other suspects were ever shown to the witnesses in either a live or a photo line-up (R. 946, 1026). Detective Amabile's testimony is consistent that he showed the three witnesses two photo line-ups: one including James Freeman and the other including Frank Lee Smith (R. 881-82, 907). The two photo line-ups were offered into evidence by the State (State Exhibit 105, line-up of James Freeman at R. 880; State Exhibit 81, line-up of Frank Lee Smith at R.--- ). Detective Amabile testified that he and Scheff followed up on the names of all suspects who came to their attention and that they eliminated all other suspects to their satisfaction (R. 948-49). Detective Scheff explained that once a name is brought to his attention as a possible suspect, "I have an obligation to follow up certainly and eliminate them as potential suspects." (R. 1055). In regard to this investigation, he testified that he had eliminated all possible suspects (R. 1056).
Detective Scheff was specifically asked about Eddie Lee Mosley and about the victim's relatives:
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.
(R. 1024). Detective Scheff attempted to downplay the significance of being a suspect in this case by explaining that "[a]t one point or another almost everybody in Fort Lauderdale was a suspect." (R. 1023).
During his deposition, Detective Scheff did not mention Eddie Lee Mosley at all despite Mr. Smith's attorney's exhaustive questioning regarding the four day investigation of this case. Detective Scheff detailed his activities for each day and each time was asked whether anything else was done:
Q Did that finish it for the 16th?
A Yeah, sure did.
(Scheff depo at 41).
Q Anything else happen on the 17th of any consequence?
(Sceff depo at 48).
Q Was anything else done on the 18th that we haven't discussed?
(Scheff depo at 69).
Q After the 4 a.m., April 19th meeting with the Irvings, Bertha and family, where did your investigation take you?
A Then, it took me home to bed.
(Scheff depo at 81). Detective Scheff repeatedly told Mr. Smith's attorney that nothing else had been done that was not discussed. He provided information about other suspects, including a tip regarding a possible suspect named "Gator Mouth" that was received after Mr. Smith's arrest (Scheff depo at 93-95), and discussed potential evidence that was determined to be unreliable and was not used in the case against Mr. Smith (Scheff depo at 91-92). The deposition concluded with the following question and answer:
Q Is there anything else that's happened in this case that we haven't discussed?
A I don't think so. Not that I can think of.
(Scheff depo at 97).
When specifically asked about relatives of the victim, Detective Scheff did not tell Mr. Smith's attorney that Eddie Lee Mosley, Dorothy McGriff’s cousin, was investigated as a suspect:
Q Did you have, at this point in time, anybody in mind?
A You mean, as a suspect?
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 [the victim's mother]. 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 child, 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 she had seen was not her cousin and that she was being truthful. It was my feeling that she was.
(Scheff depo at 44). Detective Amabile also testified that Edwin McGriff was the only member of the victim's family who was investigated as a suspect (R. 946). However, in contrast to Detective Scheff's deposition testimony regarding his conversation with Ms. McGriff about Edwin McGriff, Dorothy McGriff testified that she did not know that her cousin Edwin McGriff was a suspect (R. 658).
Detective Scheff said nothing about Eddie Lee Mosley, another cousin of the victim's mother, being a suspect. He said nothing about checking Mosley's criminal history for similar crimes. He said nothing about eliminating Mosley through a comparison of his modus operandi and that of this crime. Detective Scheff said nothing about showing the three witnesses a line-up including a photo of Eddie Lee Mosley.
At trial, Detective Scheff also testified regarding a statement that Frank Lee Smith had supposedly made. Scheff testified that he and Detective Amabile interviewed Mr. Smith shortly after his arrest. Initially, Mr. Smith identified himself as Frank L. Israel, but then he signed a waiver form as Frank L. Smith (R. 978). Mr. Smith did not have on glasses at the time of the interview (Id). After telling Mr. Smith that Lowe, Davis, and Mrs. McGriff were eyewitnesses and receiving no response (R. 982), Detective Scheff lied to Mr. Smith, telling him that the victim's brother, who was asleep at the time of the offense, had seen the suspect (R. 983). According to Detective Scheff, Mr. Smith became upset and spontaneously said there was no way the boy could have seen him because it was too dark (R. 984).
Detective Scheff's testimony about this statement was inconsistent with a police report written by a Sergeant Carry. According to this report Detectives Scheff and Amabile were in fact the first officers to interview Mr. Smith after his arrest. This interview lasted approximately two and a half hours. Sgt. Carry's report indicates that Detectives Scheff and Amabile were unable to establish any rapport with Mr. Smith or to obtain any statements, so they requested that Sgt. Carry and another officer interview Mr. Smith, which they did at about 6:35 p.m. According to Sgt. Carry's report, it was during his interview with Mr. Smith that Mr. Smith purportedly made the statement. Clearly, this information contradicted Detective Scheff's testimony, casting doubt on whether the statement was made at all and certainly impeaching Detective Scheff's credibility. Trial counsel had this information, but failed to use it.