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In the Supreme Court of Florida IN THE SUPREME COURT OF FLORIDA CASE NO. SC00-1199 AILEEN C. WUORNOS, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA REPLY BRIEF OF THE APPELLANT RICHARD E. KILEY CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida 33619 (813)740-3544 COUNSEL FOR APPELLANT TABLE OF CONTENTS Page TABLE OF CONTENTS ..................... i TABLE OF AUTHORITIES ................... ii PRELIMINARY STATEMENT ................... 1 ISSUE I THE APPELLEE IS INCORRECT IN STATING THAT TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE .................. 2 CONCLUSION AND RELIEF SOUGHT .............. .17 CERTIFICATE OF SERVICE ................. .18 CERTIFICATE OF COMPLIANCE ................ 195 i TABLE OF AUTHORITIES Page Blanco v. State, 507 So.2d 1377 (Fla. 1987 .............. 3 Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1990) ............. 4 Chandler v. U.S., 218 F.3d 1305,1312 (11th Cir. 2000) .......... 4 Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1990) ............. 4 Hildwin v. Dugger, 654 So.2d 107 (Fla.1995) ............... 9 Nibert v. State, 574 So.2d 1059 (Fla. 1990) .............. 7 Porter v. State, 2001 WL 459872 (Fla.) ............... 11 Torres-Arboleda v. Dugger, 636 So.2d 1321 ( Fla. 1994) ............. 5 Williams v. Taylor, 529 U.S.362, 120 S.Ct. 1495(2000) .......... 14 ii PRELIMINARY STATEMENT This reply brief covers Argument I B. of Appellant’s initial brief, Argument I D. in Appellee’s answer brief. As to the remaining issues Ms. Wuornos relies upon the argument and law presented in the initial brief. -1- ISSUE I THE APPELLEE IS INCORRECT IN STATING THAT TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE 1. Domingo Sanchez, an investigator with the Public Defender’s Office at the time of trial, was provided a list of Ms Wuornos’childhood friends. (PCR-38) This list was compiled using information provided to Sanchez by Ms. Wuornos. (PCR-44-45) 2. Billy Nolas was the penalty phase attorney at trial and had been made aware of the existence of lay witnesses from his client and one Arlene Praille(PCR-361). In fact, Nolas remembered the name Shovan as people he should have contacted and subpoenaed (PCR-364-365) 3. Sidney Shovan testified that he was contacted by the media after Ms. Wuornos’ arrest, but was never contacted by the Public Defender’s Office back in 1991, although the Shovan family was still living in the same neighborhood as the defendant (PCR-87-88). Sidney Shovan was contacted by CCRC-M before the 3.850 hearing and stated that he would have -2- testified at Ms. Wuornos’ trial. 4. Cindy Shovan-Dolmage testified that she was contacted by CCRC-M before the 3.850 hearing and was aware that her siblings were contacted by the media and that she would have testified at trial if she had been called by defendant’s counsel (PCR-106-107). 5. Marlene Shovan-Smith testified that she had been contacted by the media in 1991 and was contacted by CCRC-M and that she was never contacted by trial counsel. Furthermore, Smith testified that she had lived in the neighborhood and would have testified at trial had the defense called her(PCR- 121-23). Along with her brother and sister, Smith was prepared to testify as to the abuse Ms. Wuornos suffered at the hands of her family, a powerful rebuttal to the ideal family picture portrayed by the state witnesses, Lori Grody and Barry Wuornos in the penalty phase of Ms. Wuornos’ trial. 6. Toni Nazar is the youngest of the Shovan sisters. She was not contacted by the media, but she was available to testify in 1991. Nazar could have testified as to a local pedophile named Potlock, a man who supposedly fathered defendant’s child when defendant was 15 years of age. 7. In Blanco v. State,507 So.2d 1377 (Fla. 1987), this Court held that counsel was not ineffective for failing to -3- call mitigation witnesses in an attempt to humanize the defendant based on the fact that the witness was in New Jersey, a fact which was unknown to the defendant. Trial counsel had already called several lay witnesses in an attempt to humanize the defendant. However, in the case at Bar, trial counsel called no lay witnesses to rebut the contention of the state that Ms. Wuornos grew up in a normal family. All of these witnesses were available to defense counsel through reasonable investigation and should have been called to document the numerous incidents of beatings, incestuous encounters with Aileen Wuornos’ uncle and brother and her involvement with a local pedophile. These witnesses were ready, willing and able to testify on Ms. Wuornos’ behalf at trial. 8. In the answer brief, Appellee relies upon Chandler v. U.S., 218 F.3d 1305,1312 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed. 638 (1987). In Chandler, the trial counsel had called at least one witness in an attempt to humanize his client. In contrast, in the case at Bar, no witnesses were called to humanize Ms. Wuornos and highlight the abusive childhood that she suffered. These witnesses were readily available as evidenced by the fact that two of the Shovans had been located -4- by the media prior to Ms. Wuornos’ trial and were subsequently located by CCRC-Middle nearly 10 years afterward, and that the other two Shovans were contacted by CCRC-Middle in the same neighborhood in which they lived at the time of Ms. Wuornos’ trial. Trial counsel’s failure to call these witnesses clearly fell below the standard of professional competence. 9. In Brewer v Aiken,935 F.2d 850 (7th Cir. 1990), the Court, quoting from Kubat v Thieret 867 F.2d 351,369 (7th Cir. 1989),stated that: Defense counsel must make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant’s fate to the jury and to focus the attention of the jury on any mitigating factors. Mitigating factors brought out at trial might be emphasized, a coherent plea for mercy might be given, or new evidence in mitigation might be presented. But counsel may not treat the sentencing phase as nothing more than a mere postscript to the trial. While the Strickland threshold of professional competence is admittedly low, the defendant’s life hangs in the balance at a capital sentencing hearing. Indeed, in some cases, this may be the stage of the proceedings where counsel can do his or her client the most good. In our opinion, defense counsel’s failure to investigate the mental history of a defendant with low intelligence demonstrates conclusively that he did not “make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant’s fate to the jury and to focus the attention of the jury on any mitigating factors. -5- Id.at 857. It is Ms. Wuornos’ contention that in the case at Bar, trial counsel should have made an effort to find the Shovans and to call them in the penalty phase of the trial. 10. In Torres-Arboleda v. Dugger, 636 So.2d 1321 ( Fla. 1994), The Court held: During the 3.850 hearing, collateral counsel presented substantial mitigation evidence that trial counsel could have discovered if he had conducted a reasonable investigation of Torres-Arboleda’s background. Documentary evidence showed that Torres-Arboleda had a history of good behavior during his incarceration in California, had no police record in Colombia, and had attended a university in Colombia. These documents should have been considered in mitigation as such factors may show potential for rehabilitation and productivity within the prison system. Id. at 1325 Testimony at the postconviction proceeding also revealed that Torres-Arboleda grew up in abject poverty in Colombia, was a good student and child, and supported his family after his father’s death. Such evidence of family background and personal history may be considered in mitigation. Id. at 1325 Based upon the testimony and documentary evidence presented during the postconviction proceeding, Torres-Arboleda has shown that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the -6- proceeding would have been different. Id at 1326 Defense contends that the facts in Torres-Arboleda are on point with the facts of the case at Bar. In the case at Bar, Sidney Shovan would have testified as to the numerous bruises Aileen Wuornos had received at the hands of her grandfather. He would have also testified as to the incestuous rape that Ms. Wuornos had with her older brother Keith. Cindy Shovan- Dolmage and Marlene Shovan-Smith would have testified as to the rape between Keith and Ms. Wuornos and the rape between Barry Wuornos and Aileen Wuornos. Also both witnesses would have testified as to the cruelty Ms. Wuornos suffered at the hands of her grandfather and Lori Grody. Toni Shovan-Nazar would have testified that Ms. Wuornos was known to frequent the home of a known pedophile and was rumored to have had his baby at age 15. 11. Ms. Wuornos contends that the inclusion of the testimony of the above essential witnesses changes the entire evidentiary picture in Ms. Wuornos’ case in penalty phase and therefore undermines confidence in the death sentence imposed. Appellee’s statement that this testimony would not have made any difference is a mere conclusion. 12. Appellee is in error when he states in his answer -7- brief that:”Given appellant’s age at the time she decided to start murdering people (over thirty), appellant’s childhood or early teen difficulties would not be given much weight as a non-statutory mitigator.”(AB p-43) In Nibert v.
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