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In the Supreme Court of Florida Case No. Sc 08-939

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In the Supreme Court of Florida Case No. Sc 08-939 IN THE SUPREME COURT OF FLORIDA CASE NO. SC 08-939 PAUL ALFRED BROWN Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT CAROL CONTRERAS RODRIGUEZ Assistant CCRC Florida Bar No. 0931720 CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park, Suite 210 Tampa, Florida 33619 (813) 740-3544 PRELIMINARY STATEMENT This is the appeal of the circuit court=s summary denial of Mr. Brown’s successive motion for post conviction relief brought pursuant to Florida Rule of Criminal Procedure 3.851. Citations shall be as follows: The record on appeal shall be referred to as PC-R, to refer to post conviction record followed by V for volume and P to designate page followed by actual page number; or ROA to designate the record for this appeal, followed by V for volume and P to designate page followed by actual page number; -. All other references will be self-explanatory or otherwise explained herein. REQUEST FOR ORAL ARGUMENT Paul Alfred Brown has been sentenced to death. The resolution of issues involved in this action will determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar posture. A full opportunity to air the issues through oral argument would be appropriate in this case, given the seriousness of the claims at issue and the stakes involved. Paul Alfred Brown, through counsel, respectfully requests this Court grant oral argument. i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................ i REQUEST FOR ORAL ARGUMENT ...................................................................... i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES .................................................................................... iv STATEMENT OF CASE - PROCEDURAL HISTORY .......................................... 1 STATEMENT OF THE CASE .................................................................................. 4 STANDARD OF REVIEW ....................................................................................... 5 ARGUMENT I THE LOWER COURT ERRED IN SUMMARILY DENYING PAUL ALFRED BROWN'S SUCCESSIVE 3.851 MOTION AS A MATTER OF LAW AND IN FAILING TO ADDRESS THE ENTIRE RECORD AND APPLY THE FACTS OF THE CASE TO THE LAW ................................................................................ 6 ARGUMENT II FLORIDA DEPARTMENT OF CORRRECTIONS’ CURRENT EXECUTION PROTOCOLS RESULT IN EXECUTIONS WHICH ARE APPLIED IN A MANNER THAT VIOLATE MR. BROWN’S CONSTITUTIONAL RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION. ........................................................................... 10 ii ARGUMENT III FDOC'S PROCEDURES COUPLED WITH FLORIDA STATUTE 945.10 WHICH PROHIBITS MR.BROWN FROM KNOWING THE IDENTITY OF SPECIFIED MEMBERS OF THE EXECUTION TEAM VIOLATES HIS CONSTITUTIONAL RIGHTS UNDER THE FIRST, FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS ............................................................... 22 CONCLUSION AND RELIEF SOUGHT .............................................................. 33 CERTIFICATE OF SERVICE ................................................................................ 34 CERTIFICATE OF COMPLIANCE ....................................................................... 35 iii TABLE OF AUTHORITIES Cases Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................... 2 Atkins v. Virginia, 122 S.Ct. 2242 (2002) ................................................................. 3 Baze v. Rees, --U.S.--,128 S.Ct. 1520, --L.Ed.2d-- (2008).. ..................................... 7 Brown v. Beck, 2006 WL 3914717, *8 (E.D.N.C. 2006) ....................................... 29 Bryan v. State, 753 So.2d 1244 (Fla. 2000) ...................................................... 24, 25 Brown v. State, 565 So. 2d 304(Fla. 1990) ............................................................... 1 Brown v. Florida, 111 S.Ct. 537 (1990) .................................................................... 1 Brown v. State, 755 So. 2d 616 (Fla. 2000) ............................................................... 2 Brown v. Moore, 800 So. 2d 112 (Fla. 2001) ............................................................ 2 Brown v. State, 959 So. 2d 146 (Fla. 2007) .............................................................. 3 California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) ..................................................................................................................... 26 Conner v. North Carolina Council of State, Case No. 07GOV0238, County of Wake, Office of Administrative Hearings (Aug. 9, 2007) ................................... 29 Cooey v. Taft, 2006 WL 352646 (S.D. Ohio Dec. 6, 2006) .................................... 27 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ........... 7 Foster v. Moore, 810 So.2d 910 (Fla. 2002) .............................................................. 5 Gaskin v. State, 737 So.2d 509 (Fla. 1999) ............................................................... 5 iv Hodges v. State, 885 So.2d 338 (Fla. 2004) .............................................................. 5 Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007) .......................... 6, 10, 16, 19 17,23 Louisiana ex rel. Francis v. Resweber, 67 S.Ct. 374 (1974) (Fla. 2007) .................................................................................................................. 9 McLin v. State, 827 So.2d 948 (Fla. 2002) ................................................................ 5 Morales v. Tilton, 465 F. Supp.2d 972 (N.D. Cal. 2006) .................................. 27,28 Oken v. Sizer, 321 F.Supp.2d 658 (D. Md. 2004) ................................................... 27 Pell v. U. S. Procunier, 417 U.S. 817 (1974) ........................................................... 25 Provenzano v. State, 761 So.2d 1097 (2000) ........................................................... 25 Schwab v. State, 969 So.2d 318 (Fla. 2007) ................................................. 6, 19, 20 State v. Rivera, Case No. 04CR065940, Lorraine County, Court of Common Pleas (July 24, 2007) ............................................................................................ 27 Taylor v. Crawford, 2006 WL 1779035 (W.D. Mo. 2006) ..................................... 29 Travaglia v. Dept. of Corrections, 699 A.2d 1317 (Pa. Commw. Ct. 1997) ........... 26 Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) .......................... 23 v STATEMENT OF THE CASE - PROCEDURAL HISTORY Mr. Brown was charged by indictment with one count of first-degree murder and related offenses. The trial began on February 16, 1987 and the jury rendered a guilty verdict on February 19, 1987. On the same day, the penalty phase was held. The jury returned a death sentence recommendation by a 7-5 vote. On March 2, 1987, the trial Judge accepted the recommendation and sentenced Mr. Brown to death. The Florida Supreme Court affirmed Mr. Brown’s convictions and sentences on direct appeal. Brown v. State, 565 So. 2d 304 (Fla. 1990). Rehearing was denied on June 11, 1990, cert. denied, Brown v. Florida, 111 S.Ct. 537 (1990). Mr. Brown’s post-conviction motion for relief under Fla. Crim. R. P. 3.850 was due on November 16, 1992 but was initiated six months early (filed on May 8, 1992) to avoid warrant signing and to comply with schedules established by the Governor. The initial motion was denied without prejudice, an Amended 3.850 motion was filed on September 16, 1992, and a Second Amended 3.850 motion was filed on November 11, 1992. On August 31, 1994, Mr. Brown learned that his trial defense counsel, Wayne Chalu, was employed by the Hillsborough County State Attorneys’ Office, the same office which prosecuted Mr. Brown’s rule 3.850 motion. Mr. Brown filed a motion to disqualify the Hillsborough County State Attorney’s Office arguing a conflict of interest and on October 12, 1994, Circuit Judge Sexton granted the motion. The State appealed this order in a writ of 1 certiorari to the Florida Supreme Court, this honorable court quashed the order without opinion on January 31, 1995. Mr. Brown filed a motion to compel public records disclosure pursuant to Fla. Stat. 119 on October 24, 1995 and discovered that physical evidence in the clerk office’s custody admitted at his trial had been either lost or destroyed. Judge Tharpe ruled that statutory had occurred and granted Brown leave to file a Third Amended 3.850 post conviction motion to vacate judgment of conviction and sentence which was filed on July 9, 1996. Following a Huff hearing Circuit Judge Tharpe summarily denied all but four claims involving the Chapter 119 claims relating to lost evidence; prosecutorial misconduct, and claims of ineffective assistance of counsel at guilt phase and penalty phases. Judge Tharpe had not attended the required courses to proceed over a death penalty case, recused himself and Circuit Judge Allen was assigned and adopted Judge Tharpe’s order (PC-R. Vol. IV, 27-28). The trial court’s decision was timely appealed. The Florida Supreme Court upheld the lower court denying Mr. Brown relief on all claims in Brown v. State, 755 So. 2d 616 (Fla.
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