IN THE SUPREME COURT OF FLORIDA
CASE NO. SC04-674
MICHAEL GEORGE BRUNO, SR., Appellant,
v.
STATE OF FLORIDA, Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
TODD G. SCHER Special Assistant CCRC-South Fla. Bar No. 0899641 Law Office of Todd G. Scher, P.L. 5600 Collins Avenue #15-B Miami Beach, FL 33140 (305) 861-9252
WILLIAM M. HENNIS III Fla. Bar No. 383007 CCRC-South 101 N.E. Third Avenue, Suite 400 Ft. Lauderdale, FL 33301 (954) 713-1284 COUNSEL FOR APPELLANT PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit court's denial of Mr.
Bruno’s Rule 3.851 post-conviction relief and his Rule 3.853 motion for DNA testing. No evidentiary hearing was conducted. References to the record in this appeal will be as follows:
"R." -- record on direct appeal to this Court;
“PCR-1.” -- record on first 3.850 appeal to this Court;
“T.” – refers to evidentiary hearing transcript from first 3.850 proceeding;
“PCR-2.” – record on instant appeal to this Court.
All other references will be self-explanatory.
REQUEST FOR ORAL ARGUMENT
Mr. Bruno has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Bruno, through counsel, accordingly urges that the Court permit oral argument.
i TABLE OF CONTENTS
Preliminary Statement ...... i
Request for Oral Argument ...... i
Table of Contents ...... ii
Table of Authorities ...... iv
Statement of the Case and Procedural History ...... 1
Statement of the Facts Relevant to Issues on Appeal...... 6
A. Introduction ...... 6
B. The Motion to Suppress...... 6
C. The Case Against Mr. Bruno ...... 11
1. Lay Testimony...... 11
2. Scientific Evidence ...... 25
Summary of Arguments ...... 30
ii Argument I – Mr. Bruno was Erroneously Denied his Right Under Florida Law to Obtain DNA Testing of the Available Physical Evidence in Violation of the Eighth and Fourteenth Amendments ...... 32
A. Substantive Right to DNA Testing...... 32
B. The “Reasonable Probability” Standard ...... 34
C. The Circuit Court’s Analysis was Erroneous...... 37
Argument II – To the Extent that the State has Destroyed Latent Fingerprint Lifts and/or Other Physical Evidence without Notice to Mr. Bruno, Mr. Bruno’s Due Process Rights Have been Violated...... 54
Conclusion ...... 58
Certificate of Service ...... 59
Certificate of Compliance ...... 59
iii TABLE OF AUTHORITIES
Amendment to Fla. R. Crim. P. Creating Rule 3.853, 807 So. 2d 633 (Fla. 2001)...... 32
Apprendi v. New Jersey, 530 U.S. 466 (2000)...... 5
Arizona v. Youngblood, 488 U.S. 51 (1988)...... 55
Borland v. State, 848 So. 2d 1288, 1290 (Fla. 2003)...... 35, 49
Brown v. Singletary, 229 F. Supp. 2d 1345 (S.D. Fla. 2002)...... 50
Bruno v. Moore, 838 So. 2d 485 (Fla. 2002)...... 5
Bruno v. State, 574 So. 2d 76 (Fla.), cert. denied, 502 U.S. 834 (1991)...... 2, 41, 43 Bruno v. State, 807 So. 2d 55 (Fla. 2001)...... 4, 41
California v. Trombetta, 467 U.S. 479 (1984)...... 55
Collins v. State, 869 So. 2d 723 (Fla. 4th DCA 2004)...... 44
Evitts v. Lucey, 469 U.S. 387 (1985)...... 33
iv Ford v. Wainwright, 477 U.S. 399 (1986)...... 34
Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)...... 49
Garcia v. State, 622 So. 2d 1325, 1330-31 (Fla. 1993)...... 35
Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999)...... 49
Hewitt v. Helms, 459 U.S. 460, 466 (1983)...... 34
Herrera v. Collins, 506 U.S. 390, 419 (1993)...... 50
Huffman v. State, 837 So. 2d 1147, 1149 (Fla. 2d DCA)...... 37
Knighten v. State, 829 So. 2d 249, 251 (Fla. 2d DCA 2002)...... 37
Knighten v. State, 829 So. 2d 249, 252 (Fla. 2d DCA 2002)...... 35, 41, 44
Kyles v. Whitley, 514 U.S. 419, 434 (1995)...... 36
Lightbourne v. State, 742 So. 2d 238, 247-48 (Fla. 1999)...... 36
Manual v. State, 855 So. 2d 97 (Fla. 2d DCA 2003)...... 37, 44
v Marsh v. State, 812 So. 2d 579 (Fla. 3d DCA 2002)...... 42
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)...... 33
Riley v. State, 851 So. 2d 811 (Fla. 2d DCA 2003)...... 37, 44
Ring v. Arizona, 122 S. Ct. 2428 (2002)...... 5
Robinson v. State, 865 So. 2d 1259 (Fla. 2004)...... 41
Saffold v. State, 850 So. 2d 574, 577 (Fla. 2d DCA 2003)...... 45, 50
Schlup v. Delo, 513 U.S. 298 (1995)...... 50
Schofield v. State, 861 So. 2d 1244 (Fla. 2d DCA 2003)...... 50
Spencer v. State, 842 So. 2d 52, 69 (Fla. 2003)...... 49
State v. Smith, 100 Was. App. 1064 (Ct. App. Wash. 2000)...... 40
State v. Underwood, 518 S.E. 2d 231 (Ct. App. S.C. 1999)...... 40
Strickland v. Washington, 466 U.S. 668 (1984)...... 35
United States v. Bagley,
vi 473 U.S. 667 (1985)...... 35
Wasko v. State, 505 So. 2d 1314 (Fla. 1987)...... 3
Young v. State, 739 So. 2d 553, 559 (Fla. 1999)...... 36
Zollman v. State, 820 So. 2d 1059, 1062 (Fla. 2d DCA 2002)...... 33
vii STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On September 11, 1986, Mr. Bruno was indicted by a grand jury of Broward
County, Florida, for one count of first-degree murder and one count of armed robbery with a firearm against the victim, Lionel Merlano. The guilt phase of Mr.
Bruno’s trial was held August 5, 1987, through August 11, 1987. After a two-day deliberation, the jury returned a guilty verdict on both counts. After a sentencing hearing before the jury, the jury returned an advisory recommendation for the death penalty by a vote of eight (8) to four (4). On September 25, 1987, Mr. Bruno was sentenced to death by Broward County Circuit Court Judge Thomas M. Coker, Jr.
In his sentencing order, the court found the existence of six statutory aggravating circumstances: (1) that, at the time of the crime, Mr. Bruno had been previously convicted of another capital offense or of a felony involving the use of violence to some person, to wit, Mr. Bruno’s contemporaneous conviction of the murder of
Lionel Merlano and the robbery against Mr. Merlano; (2) that, at the time of the crime, Mr. Bruno was engaged in the commission of a robbery against Mr.
Merlano; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (4) that the murder was committed for pecuniary gain, (5) that the murder was especially wicked, evil, atrocious, or cruel, and (6) that the murder was committed in a cold, calculated,
1 and premeditated manner without any pretense of moral or legal justification. As to the first three of the above aggravating circumstances, the trial court concluded that they were “based on the same aspect of the criminal episode” and were thus
“considered by the Court as a single aggravating circumstance.” The trial court found no mitigation.
On direct appeal, this Court affirmed Mr. Bruno’s convictions and sentence of death, but vacated the sentence he received for the robbery conviction. Bruno v. State, 574 So. 2d 76 (Fla.), cert. denied, 502 U.S. 834 (1991) [Bruno I].1 As to
1On direct appeal, Mr. Bruno raised the following issues: Mr. Bruno’s confession was unlawfully obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 16, and 17 of the Florida Constitution, and should have been suppressed along with its fruits; the evidence of intent to rob was insufficient, requiring reversal of the robbery conviction; the first-degree murder conviction urged on alternative theories must be reversed; the trial court erred in failing to have a court reporter present during bench conferences during voir dire; the trial court erred in refusing to release grand jury testimony or have an in camera inspection of the grand jury testimony; the trial court erred in permitting the prosecution to pursue a felony-murder theory as the indictment gave no notice of such theory; the trial court erred in denying Mr. Bruno’s motion for psychiatric examination of the State’s star witness; the erroneous admission of testimony concerning witness’ fear of Mr. Bruno denied him a fair trial; denial of due process and the presumption of innocence by repeated testimony about Mr. Bruno’s arrest and jail status; the submission of the case to the jury without the presentation of a defense case required a new trial; the prosecutor’s closing argument at the guilt phase deprived Mr. Bruno of a fair trial and was fundamental error; the trial court committed fundamental error in its inaccurate jury instructions; Mr. Bruno was denied his right to be present at several stages of the proceedings; the trial court erred in allowing the bailiff to respond to a substantive jury request without the presence of the court and the parties; the trial
2 the calculus of aggravating factors, the Court, while agreeing that only three (3) aggravators could be applied to Mr. Bruno, concluded that “we arrive at this conclusion in a somewhat different manner.” Bruno I at 81. First, the Court held that the evidence was insufficient to sustain a finding that the “avoiding arrest” aggravating circumstance applied in this case. Id. Next, the Court held that the
“previous conviction of a violent felony” aggravating circumstance could not be applied in this case because “the felony in question was the contemporaneous conviction of the robbery of Merlano.” Id.2 Next, the Court concluded that, although the trial court properly found the “during the course of a robbery” and
“pecuniary gain” aggravating circumstances, these two factors “are based upon the same aspect of the criminal episode and should properly be considered as a single court erred in communicating with the jury without any prior consultation with defense counsel or Mr. Bruno, especially where such communication was designed to coerce the jury into reaching a verdict; Mr. Bruno’s sentence of death violated the Fifth, Sixth, Eighth, and Fourteenth Amendments, Article I, Sections 9, 16, and 17 of the Florida Constitution, and Section 921.141, Fla. Stat. (1986); the multitude of errors in the conduct of the penalty phase render the death sentence unlawful; there is substantial record evidence in mitigation calling for a sentence less than death; the death sentence is disproportionate; Florida’s capital sentencing statute is unconstitutionally, facially and as applied; Mr. Bruno’ sentence on Count II must be vacated since no guidelines scoresheet was filed with or used by the sentencing court.
2Under Florida law, the “previous conviction of a violent felony” cannot encompass a contemporaneous conviction against the same victim. See Wasko v. State, 505 So. 2d 1314 (Fla. 1987).
3 aggravating factor.” Id. After reformulating the aggravating circumstances, the
Court concluded that
that the murder was aggravated by the three following valid factors: (i) that the murder was committed during a robbery and for pecuniary gain; (ii) that the murder was heinous, atrocious, or cruel; and (iii) that the murder was cold, calculated, and premeditated.
Id. at 82. In spite of reformulating the aggravating circumstances and striking others, the Court’s purported harmless error analysis comprised the following statement:: “In light of three statutory aggravating circumstances and no statutory mitigating circumstances, we find no error in the judge’s sentence of death.” Id. at
83.
Pursuant to Florida procedures, Mr. Bruno thereafter filed a motion for postconviction relief under Fla. R. Crim. P. 3.850. After an evidentiary hearing in the state circuit court, the trial court denied relief, and this Court, in a sharply divided opinion, affirmed the denial of postconviction relief. Bruno v. State, 807
So. 2d 55 (Fla. 2001) [Bruno II].3
Mr. Bruno also sought habeas corpus relief in this Court, alleging, inter alia,
3In his Rule 3.850 appeal to this Court, Mr. Bruno raised the following issues: no adversarial testing occurred at Mr. Bruno’s capital trial, in violation of the Sixth, Eighth, and Fourteenth Amendments; violation of Ake v. Oklahoma; jury instructional error warranted a resentencing; cumulative error.
4 that the Court’s purported harmless error analysis on direct appeal was flawed, and that Florida’s death penalty statute violated the Sixth Amendment as explained in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 122 S. Ct.
2428 (2002). The Court denied relief on these claims. Bruno v. Moore, 838 So. 2d
485 (Fla. 2002) [Bruno III].
On September 30, 2003, Mr. Bruno filed a motion for DNA testing pursuant to Fla. R. Crim. P. 3.853 (PCR2-44-78). On December 15, 2003, the lower court ordered a response from the State to be filed within thirty (30) days (PCR2-79).4
In January, 2004, the State filed its written response opposing Mr. Bruno’s request for DNA testing (PCR2-141-42). On February 2, 2004, Mr. Bruno filed a Rule
3.851 motion (PCR2-80-198). On February 9, 2004, the lower court ordered the
State to respond to the Rule 3.851 motion within thirty (30) days (PCR2-199). On
February 13, 2004, the lower court entered an amended order requiring a response from the State to the Rule 3.851 motion within twenty (20), rather than thirty (30) days (PCR2-200). The State filed its response to the Rule 3.851 motion (PCR2-
201). After a case management hearing on March 11, 2004 (PCR2-1044-94), the
4In explaining the reason for the delay in ordering a response, the order indicated that Mr. Bruno’s motion, for some reason, had not reached the Court until December 4, 2003, although it was clearly filed on September 30, 2003, and a courtesy copy was sent to the judge on that date (PCR2-50).
5 lower court entered an order denying both the Rule 3.851 and Rule 3.853 motions
(PCR2-1021-31). Timely notice of appeal was filed (PCR2-1032-33).
STATEMENT OF FACTS RELEVANT TO ISSUES ON APPEAL
Mr. Bruno is innocent of the crimes for which he was convicted. He maintains his innocence to this day. The following statement of the facts adduced at trial and during the postconviction proceedings is provided to put context to the claims on appeal at this time.
A. Introduction.
At the time of the offense, Mr. Bruno and his son, Michael Bruno, Jr., 15 years of age, were living at another family’s home in North Lauderdale, Florida.
Residing in the home were Arthur Mahue, the owner; Sharon Spalding, his fiance;
Joseph “Jody” Spalding (Sharon’s son); and another Spalding child. The Mahue-
Spalding family and their friends ultimately testified against Mr. Bruno at trial. Their testimony, together with Mr. Bruno’s statement to police, provided the core of evidence leading to Mr. Bruno’s convictions for the first-degree murder and armed robbery of Lionel Merlano.
B. The Motion to Suppress.
Both Mr. Bruno and his son, Michael Jr., were arrested on August 13, 1986,
6 for the killing of Mr. Merlano.5 They were taken to police headquarters for questioning, and both were held in custody in separate cells. Mr. Bruno was questioned first.6 He had previously given an exculpatory statement to police explaining his whereabouts at the time the killing occurred (R50-51), and when confronted with allegedly incriminating evidence, he told the police he did not want to make any further statements (R34; 50-53).7 The police then began to question
Michael Jr., who ultimately implicated his father in the killing (R53, 644).
Mr. Bruno had been returned to his holding cell and there spoke with Robert
Manfre, a police lieutenant. Lt. Manfre testified that soon after returning to cell., Mr. Bruno asked for a phone call, and called his parents (R37). Mr. Bruno asked for a cigarette, then started to cry, saying he was worried about his son. Mr.
Bruno questioned the officer about "certain facts" relating to the case (R37, 38).
Manfre said he had to stop Mr. Bruno, and told him he didn't want him to make a statement to him (R38). Mr. Bruno began asking Manfre for advice. Manfre
5Their arrest occurred only after statements implicating them were made by Sharon Spalding and Jody Spalding. These incriminating statements were a direct turnabout from previous information the two had given.
6The time the questioning took place was in dispute, as explained later.
7Detective Edgerton, the lead investigator, testified he told Mr. Bruno that they thought his son was involved (R51, 57).
7 told Bruno he felt it would be best if he told the truth, and if he wanted he could give a statement to Detective Edgerton ® 39).
According to Manfre, Mr. Bruno was concerned about what would happen to his son if he went to jail. While the words “sexually molested” were never spoken, Mr. Bruno “may have been” referring to that (R39-40). He told Mr. Bruno that only he could know what would happen to his son because only he knew the
“total involvement” his son had in the killing (R39). Manfre denied telling Bruno that a statement by him clearing his son would mean his son would not go to jail
(R40), but that after Mr. Bruno indicated several times he wanted to make a statement, Manfre took him back to Detective Edgerton’s office (R43). At
Edgerton’s office for the second time that evening, Mr. Bruno gave a taped statement which was ultimately introduced at trial. 8 At trial, however, Edgerton admitted telling Mr. Bruno that if he gave a statement under oath swearing his son was not involved in the killing, then his son would not be charged (R646).9
8In this statement, Mr. Bruno stated that the killing was in self-defense.
9Mr. Bruno testified at the motion to suppress that when he and his son were arrested, they were handcuffed together with wire ties, and while was on the ground, one of the officers shot his gun not more than three feet from him (R77). Mr. Bruno was then brought to the police station, taken to a room and told that both he and his son were charged with first-degree murder. After signing the rights waiver form, he said he knew nothing about it and wanted to see a lawyer (R80). After the call, Manfre came into the cell and had a cigarette with him. Manfre told
8 Meanwhile, Mr. Bruno’s family had retained an attorney to represent him, and the attorney and his associate had contacted the police that evening in an effort to see Mr. Bruno, and had asked that any questioning be halted. Michael Castoro, an attorney practicing in Hollywood, Florida, was contacted by a friend of the family slightly after 9:00 PM (R9). The family told Castoro they wanted to retain him to represent Mr. Bruno and informed him where Mr. Bruno was being held
(R7-8). Castoro called Edgerton around 9:50 PM (R9). Even though Castoro identified himself as Mr. Bruno’s attorney and gave Edgerton his bar number,
Edgerton refused to let him speak with Mr. Bruno (R9, 15). Castoro testified he had caught the officer before a statement was taken, as Edgerton seemed “very anxious to take one” (R9, 15). When Castoro directed him not to take a statement from his client, Edgerton “more or less shrugged it off” (R10). Castoro then called his associate, Kay Doderer, and told her to go to the police station (R9).
Ms. Doderer, also an attorney, received the call from Castoro at about 9:40
PM, directing her to go to the police station (R17). She tried to call the police herself, but the line was busy. She arrived at the station between “10 and 10:15 till him that if he made a statement his son would be released, and if he did not, “well, you know what they do with little boys in jail” (R82). Manfre suggested Mr. Bruno tell Edgerton that a fight broke out and that it was self-defense, so Mr. Bruno gave a statement to that effect (R83). Mr. Bruno also testified that no one told him a lawyer had been trying to contact him that evening (R83-84).
9 10:30.” She immediately asked to speak to Edgerton and her client. Edgerton refused the request, telling her that Mr. Bruno was giving a statement at the time and he was not going to let her in to see him (R19). Ms. Doderer again advised
Edgerton that Mr. Bruno was not going to make a statement (R20). She was not allowed back to see Mr. Bruno. She gave Edgerton her card and was told she could talk with Mr. Bruno after they were finished with him (R21). At 1:00 AM,
Edgerton called her back and said he had shown her card to Mr. Bruno, but he said he didn’t know her (R21-23). Finally, at 3 AM, she was allowed to speak with Mr.
Bruno, and she appeared on his behalf before the magistrate later that morning
(R23-26).
Detective Edgerton recalled the times differently but the events in approximately the same sequence. He testified to receiving a phone call from an
“alleged attorney” at approximately 9 or 9:15 PM (R53, 69). When he “got out there” to talk to him, the attorney said he had been retained to represent Mr. Bruno.
Edgerton said that no one was permitted to make calls at the station as a matter of policy, that Mr. Bruno had not requested them to call his parents and had not been given the opportunity to do so (R54) (Edgerton did not know Mr. Bruno had been allowed to call his parents, though he said Manfre “may have” told him of the phone call) (R55). The attorney asked Edgerton not to take a statement, but
10 Edgerton refused, saying that Mr. Bruno had not requested an attorney and, to his knowledge, had not made a phone call. Edgerton said he did not know who the person on the phone was, could not be assured it was an attorney, and could not follow what was being asked of him (R55).
Edgerton said that when Ms. Doderer arrived at 10:30 PM, he told her that she could not see Mr. Bruno because Mr. Bruno had not requested an attorney, had signed a rights waiver form, and had made no phone calls to an attorney, to his knowledge (R59-60). He said he advised Mr. Bruno that Ms. Doderer was outside and wanted to see him, but this was after the statement had already been taken
(R60).
There is a discrepancy as to when the incriminating statement was actually taken: at the end of the taped statement, Edgerton said it is 10:10 PM. At the beginning of the statement, Edgerton says it is 8:59 PM. The tape is eleven minutes long (R69-72). Edgerton said that the tape “must have” ended at 9:10 PM (R71).
The taped statement was admitted into evidence and played for the jury.
C. The Case Against Mr. Bruno.
1. Lay Testimony.
The State sought to pinpoint the time of death by calling Bob Bryant, a person who lived in the apartment next to Merlano, but “barely knew” him
11 (R322).10 He testified that at 2:30 A.M. in the early morning hours of Saturday,
August 9, 1986, he was awakened by noises coming from the victim’s apartment
(R327).11 The sounds were like scuffling, and he heard Merlano saying “hey, hey, hey” through the walls. The sounds lasted five or six minutes (R327-28). He initially believed the noises were “his friends having a little fun or something,” not someone crying out in pain (R329). He got up and started to walk over to ask
10That Bryant did not know any of the players in this case is significant, for he is truly a disinterested witness and provides the only evidence as to the time of death in this case. As explained in an attachment to Mr. Bruno’s motion below, Bryant’s testimony as to the 2:30 AM time was consistent in both his pretrial statement to law enforcement and trial (PCR2-164). Consistency, however, is not a common trait for the remainder of the key prosecution witnesses, whose stories changed dramatically over time.
11As seen in later testimony, however, the State ultimately impeached its own witness by adducing testimony though other much more biased witnesses that Mr. Bruno and his son returned home from the “murder” much earlier than after 2:30 AM, which is when Bryant’s testimony established the murder occurred. For example, Mr. Bruno’s son, who claimed to be an eyewitness to his father killing the victim, testified that he and his father arrived at the victim’s apartment at around 9:00 or 10:00 PM in the evening and remained there for about an hour (R425-26; 442-43). Clearly these time frames are inconsistent with prosecution witness Bryant. While Jody Spalding testified that he saw Mr. Bruno’s son at around 2-3 AM that morning (R391), Stephan Mazzella testified that Mr. Bruno and his son arrived at the Spalding home a little after 1:00 AM (R470), well before the 2:30 AM time set by Bryant’s testimony. Kevin Tillman testified that Michael Jr. told him about the murder at around 1:45 to 2:00 AM (R484), also well before the 2:30 AM time of the murder set by Bryant’s testimony. Edward Paul testified that he arrived at the Spalding home at about 12:45 AM and Mr. Bruno arrived there “about a half an hour later” (R604). A half an hour after 12:45 is 1:15 AM, more than an hour before Bryant hears the murder being committed.
12 Merlano to keep it down, but the noise soon stopped so he went back to bed
(R327).
Michael Bruno, Jr., gave a statement to police the night he and his father were arrested (R436). He said under oath that on the evening in question, his father had taken him for a ride, dropped him off at a gas station, and came back an hour later.
His father later told him he had gotten into a big fight with someone who might have been killed (R437). That statement did not change until about 10 months later, just two days before trial was to begin.12
On that day, with knowledge that he had been granted immunity from the
State, Michael Jr. gave a dramatically different story to the prosecutor and
Detective Edgerton, in which he said he was an eyewitness to the killing (R439,
12The trial was continued from that date. During the previous 10 month period, Michael Jr. had been undergoing psychotherapy for Acute Post-Traumatic Stress Disorder with at least one psychiatrist in Massachusetts (R131). In an attachment to defense counsel’s request for a psychiatric examination of Michael Jr., are facts not discussed at trial. For example, the psychiatrist related that Michael Jr. Was suffering from, among other things, memory impairment and disassociative states in which he is unable to respond to the world around him (R128-131). In the face of this unquestionable history of Michael Jr.’s mental instability, trial counsel did not question Michael Jr. about his mental problems or drug usage despite his acknowledgment at the evidentiary hearing that “if he was on drugs or if he was possibly intoxicated on that particular night, it would be cannon fodder for cross-examination regarding his ability to accurately recall what he had seen if he was intoxicated” (T309).
13 647-49).13 By the time of trial and now under immunity (R101, 439, 722), Michael
Jr. testified that in the summer of 1986, he was down from New York, living with his father and sister Alicia at the Candlewood apartments (R423-23). By August,
1986, the family was living with the Spaldings at their home (R425). On Friday night, August 8, several people were over at the Spalding house (R426). At about 9 or 10 PM, he and his father went to a friend’s house at Candlewood apartments for some beers (R425-46). One of the people at the Spalding home, Steve Mazella, loaned them his car (R420). They both went to Building C to an apartment unknown to Michael Jr. (R427). His father knocked on the door and the “guy” let them in. Michael Jr., identified a picture of Merlano as the man who let them in.
Only the three of them were in the apartment; they all were drinking beer and listening to the man’s stereo (R426-28).
Michael Jr. testified that “at some point” his father went to the bathroom.
Then, “at some point,” he went over to the stereo “to play with the knobs” (R429).
13In support of his motion for DNA testing, Mr. Bruno included an affidavit from Jennifer Ladell, a longtime friend of Mr. Bruno’s son (PCR2-192). In her affidavit, Ms. Ladell swears that, in the years since Michael Jr.’s testimony against his father, he had repudiated his testimony and indicated that Mr. Bruno did not in fact kill Lionel Merlano (Id.). In fact, Michael Jr. indicated to Ms. Ladell that he did know who committed the murder: the “cleaning lady’s boyfriend” (Id.). The “cleaning lady” referred to is believed to be Sharon Spalding, an important and incriminating prosecution witness who testified against Mr. Bruno at trial.
14 His father told the man he liked the stereo equipment, and the next he knew, “the guy was on his knees playing with the knobs, and my father was standing over him.
He pulled out a crow-bar, started hitting him.” The crow-bar had been the front of
Mr. Bruno’s pants. According to Michael, Jr., his father used the crow-bar like a baseball bat, hitting the man “pretty hard” over the head a number of times. The man was bleeding, asking him to help, but Michael Jr. did nothing because said he was in shock (R430).
The man fell to the floor and appeared to be alive. His father told him to get a gun from under the sink in the bathroom, and he did. According to Michael Jr., his father then grabbed a pillow, put it over the gun, and shot the man twice in the head. They both then left (R431-32). Michael Jr. testified that although he did not have a watch, they had left for the man’s apartment “in the neighborhood between
9 and 10 PM,” that he was at the apartment for approximately an hour, and that the incident happened at 10 or at the latest 11 PM (R442). However, he also testified that he and his father “could have” gotten back to the Spalding’s house as late as 2 or 2:30 AM (R443).
When they returned to the Spaldings, Michael Jr. spoke briefly with Jody
Spalding, then went to sleep (R432). Michael Jr. testified that his father later told him he had thrown the gun and crow-bar into a canal (R432). He also testified that
15 a picture of the apartment showing the area where the stereo had been revealed pieces missing; that his father made several trips over the next few days using Jody
Spalding’s car; and that a stereo “appeared” at the Spaldings during that time
(R428, 432-33).
Michael Jr. and his father moved out of the Spaldings’ home shortly after, and had plans to return to New York at the time they were arrested (R433). Since the arrest, Michael Jr. testified that his father had told him to tell various stories either blaming Jody Spalding or another person; that he was out bowling or at the movies with a girl, or in a “roundabout way” that he and Jody Spalding had committed the crime” (R433-34).14
Other friends of Michael Jr. and family and friends of the Spaldings also provided testimony at trial. The Spaldings’ testimony, like that of Michael Jr., was entirely inconsistent with their initial statements to the police.15
14Michael Jr. also testified that Jody Spalding sold marijuana but not cocaine (R435-36).
15Very few of the significant inconsistencies between these witnesses’ testimony and their pretrial statements were elicited by trial counsel. Trial counsel’s deficiencies were raised by Mr. Bruno as ineffective assistance of counsel in his initial postconviction proceedings. Review of the record in the context of assessing Mr. Bruno’s entitlement to DNA testing is not limited to the record as it stands at trial, however, and thus Mr. Bruno will point out in this section of the brief the significant inconsistencies in witness testimony to establish the overall weakness of the State’s case for guilt.
16 After Merlano’s body had been found in his apartment on August 11, 1986, an officer stopped Jody Spalding in the Candlewood apartment parking lot. The officer said that Spalding had been “a little defensive” and wanted to know why he was being asked questions (R506).16 The officer took his address and later questioned both him and his mother, Sharon (R508).
The officer went to the Spalding residence to question Jody and Sharon on
Monday August 11 or Tuesday August 12 (R407). Jody admitted that at that time he told the officers he knew “nothing about” the killing and that the Brunos had been with him the whole weekend (R410). When Sharon was questioned that day, she too denied any knowledge of the killing (R454-55).17
But in the days preceding the questioning by police, the Spalding had possession of the stereo and television belonging to Merlano and were using both in their home (R411, 455, 456). Jody had thrown away a pair of sneakers later determined to have blood on them (R415-16). By the time the police came back on
Thursday to question Sharon Spalding again, she had put the stereo equipment into
16Spalding said he and Michael Jr. were in the car and “thinks” he told the police that he was there to pick up a receipt for a refrigerator (R407).
17Sharon Spalding had “visited” Candlewood Apartments, and cleaned units there in the past. She had access to keys for all of the apartments and knew where the keys were kept (R462).
17 the trunk of her car (R453). When she was questioned a second time, the police told her they knew she was holding back (R455). It was then that she showed the officers the stereo components that were in her trunk (R453), and told the police the story she testified to at trial.
Sharon testified at trial that the last week in July, 1986, Mr. Bruno mentioned a man in the “C” building and “what he was going to do to him” (R449). “He told me that he was in Viet Nam with this man, and because of this man’s stupidity, eight or nine of his friends got killed, and that he was going to get even with him”
(R450).18 She recalled that on Friday, August 8, she saw Mr. Bruno sitting on a couch in her house with a gun in a brown suitcase.19 She told him she didn’t want a gun in her house and he said he would take it out of there (R450). By the next day, “certain items” had appeared in the utility room: a computer, VCR, and some stereo equipment (R451). When asked about the items, Mr. Bruno told her not to worry, that the person wouldn’t be coming back for them because he was dead
18Neither Mr. Bruno nor the victim had ever been in Vietnam.
19What the jury did not know, however, was that in her police statement, Sharon made no such statement about Mr. Bruno having a gun; this discrepancy was addressed at Mr. Bruno’s first evidentiary hearing (T340-41). Trial counsel acknowledged that Sharon’s omission was a “potentially very important fact that was left out” and that it “probably should have been explored” by him on cross- examination (T342).
18 (R452). She did not tell the police about the items immediately because she either didn’t believe him or was scared Mr. Bruno “might do something to her family”
(R452, 458).20
Jody changed his story the same day his mother did. He “believes” the police questioning centered on the stereo equipment (R410). He told the police that
Mr. Bruno committed the killing, and he retrieved his sneakers for the police from a dumpster where he had thrown them away (R416). The story he ultimately told that day is the one he also testified to at trial.
Jody was 18 years old at the time of trial (R387). He knew Mr. Bruno and his son and daughter (R388). About a week before the incident, Jody said that he and Mr. Bruno went to see a friend of his, Chris Tague (R388). Tague had a gun, and Mr. Bruno asked if he could borrow it (R388-90).21
Jody testified that Michael Jr. arrived at the Spalding home at 2 or 3 AM the morning of August 9, but did not say anything at first. He looked “pale and weak and scared, really scared.” When they were alone, Michael Jr. Said “you don’t
20On direct appeal, this Court found that this testimony about being in fear of Mr. Bruno was error, but “no more than harmless error.” Bruno I at 80.
21While Jody denied dealing marijuana, he admitted that he and a friend had previously gone to “collect money” from a man named “Duke,” who owed Archie Maheu money. He didn’t know for what, and was “not sure” if anyone who went with him to collect money had a gun (R415, 420).
19 ever want to see what I saw tonight” (R391). Jody said he later saw Mr. Bruno, who told him he had gotten into a “big fight with this guy and he was dead” (R391).
Mr. Bruno said he was going to get some equipment and stuff from the man’s house, and left in his mother’s car. Jody went to sleep (R391-92). He was awakened at 10 AM on Saturday by Mr. Bruno, who said he wanted Jody to take him to Casa Sorreno, where his parents were living (R392). When he awoke, Jody saw for the first time a VCR and stereo equipment in the house (R393). Mr. Bruno told him he got the stereo from the house of a guy that he killed; according to Jody,
Mr. Bruno looked “scared very nervous” (R393).
Jody took Mr. Bruno to the complex and when they arrived, he said that Mr.
Bruno threw “something” away, “what looked to be a steel bar wrapped in cloth”
(R354). On the way home, he asked Jody to stop at another canal, where he threw a gun wrapped in a cloth (R395). They stopped at yet another canal, where he threw away the cylinder piece of a gun (R395-96).22
22During the first postconviction proceedings, Mr. Bruno elicited a number of prior inconsistent statements given by Jody that trial counsel never used during Jody’s cross-examination. For example, when he was interviewed by law enforcement on August 13, 1986, Jody denied knowing the victim by name, said nothing about the crime or disposal of weapons, and reported driving his brother to the airport on the morning of August 11, accompanied by Chris Tague and Mr. Bruno (T406). In a second sworn statement, Jody also gave an entirely different version of events than what he testified to at trial. In this statement, made under oath, Jody never mentioned that Mr. Bruno had a gun; that the gun was thrown in a
20 The next day, Mr. Bruno had a Commodore computer (R396). That morning, Jody, Mr. Bruno, and Chris Tague went to the airport to drop off his brother (R397). Mr. Bruno then “insisted” on going to C Building at Candlewood
“where to guy was supposed to be dead” (R398). Mr. Bruno said he was “worried about some fingerprints that might have been left behind, and he had to get back in”
(R398). He went to the apartment with Mr. Bruno because “you never know what he might do to us” (R398).23
At C building, the three of them went to a door “where a girl supposedly lives, Kim,” and Mr. Bruno tried to open it with a screwdriver. Mr. Bruno could not get in, so they went to E building to borrow a butter knife. They still could not
canal; and he did not say that he drove Mr. Bruno to different locations when the pipe and gun parts were being dumped in the canals. He mentioned only the pipe, and swore that he was merely told that it had been thrown in the canal, denying specifically that he had been present or that he knew where it had been thrown, as he later related in his testimony at trial. Indeed, when Detective Hanstein pressed Jody again on the issue of the location of the pipe, Jody, under oath, continued to deny he was there when the pipe was thrown, and never mentioned a gun. It was not until August 19, after the officers learned from Chris Tague about Jody’s involvement in disposing of the weaponts, that the police went back to Jody and Jody told the police he had been present when the weapons were thrown into the canals. However, the jury never knew this information which clearly impacts on the strength of the State’s case and is information relevant to Mr. Bruno’s motion for DNA testing.
23This testimony was likewise held to be erroneously admitted by this Court on direct appeal. Bruno I at 80.
21 get in so they left (R400-02). On Tuesday or Wednesday, Mr. Bruno and Michael
Jr. left the Spalding house. Jody said he got a call from Mr. Bruno telling him to get rid of his shoes because they had been used in a “murder” (R402-03). He put the shoes in a paper bag and threw them away (R463).
Other friends of the Spaldings testified. Steven Mazella, one of the many people who stopped in at the Spaldings on the evening in question, is 18 years old
(R466). On Friday evening, he and his girlfriend arrived at about 7:30 or 8 PM.24
Jody was not there, but Mr. Bruno and his son were (R467-68). Mazella and Mr.
Bruno discussed Mazella’s car. A month or so previously, Mr. Bruno had wanted to use the car to “borrow a bunch of stereo equipment from a friend” (R489). He asked to borrow the car again that evening to get some stereo equipment (R470).
His son was with him. The next time he saw Mr. Bruno was about 1 or 1:30 AM
(R471).25 When he returned, Mr. Bruno put the car keys on the table and said nothing out of the ordinary. Mazella asked Mr. Bruno where the stereo equipment
24Mazella had also gone with Jody Spalding and others to “collect” money from “Duke.” He said he didn’t know why the money was owed (R476).
25As noted earlier, this time is totally inconsistent with prosecution witness Bryant, who was wholly consistent with his testimony that he heard what turned out to be the victim’s murder at 2:30 AM.
22 was, and Mr. Bruno told him his plans had fallen through (R470-77). That was it for the night.
The rest of the entourage from the Spalding party also testified. William
Tillman worked with Jody Spalding that evening and went home with him (along with two others) at 1:30-1:45 AM (R481-83).26 He saw the Brunos come in about
1:45-2 AM, and Michael Jr. looked shocked (R487).27 They all stayed the night.
After having his “recollection refreshed” by the prosecutor, Tillman said he saw
Mr. Bruno in the early morning in the hallway, wearing a black sweater, jeans, and sneakers. On the lower part of the leg and around his shoes, Tillman said he saw
“little specks of blood” (R486).28 Tillman also went to Candlewood with Mr.
Bruno on Monday but described the incident as knocking on a friend’s door, then leaving (R486).
26Ed Paul testified that he worked that night with Jody, and went home with him, only Paul said they left work at 12:20 AM (R597-602). He left the Spalding house at about 2 or 2:30 AM with Mazella (R602).
27This time is also inconsistent with prosecution witness Bryant’s testimony placing the time of the murder at 2:30 AM.
28Tillman initially testified, when asked by the prosecutor if he saw any blood on Mr. Bruno, “No. I can’t remember” (R485). It was only after Tillman was shown his deposition did he change his answer and testified that he saw “little specks of blood” (T486).
23 Another person questioned by police at the scene later changed her account of the evening of Friday, August 8. Diane Liu lived at Candlewood apartments at the relevant time, and “works on shoes and purses at Goodwill” (R374-75). She claims to have seen Mr. Bruno and Lionel Merlano at a Candlewood party that night; Merlano was there about 8 PM drinking beer (R376-78). She saw Mr. Bruno alone at around 8 PM (R377). She testified that Mr. Bruno had asked her to go to a “murder party. It’s going to be a great killing” (R378).29 Liu also said he Mr.
Bruno “was always joking. You couldn’t never took him serious at that time”
(R382).30
Arthur “Archie” Mahue, Sharon Spalding’s husband, came forward some 6 months after the killing to give his story. Mahue also found the stereo equipment in his house. He said he asked Mr. Bruno where it came from and, according to
Mahue, Mr. Bruno said “they just came from this house where he had killed this
29Police who interviewed Liu, however, did not believe her statement, writing in a report that “she appeared not to be totally with it” (Deposition of Det. Hanstein at 27). Trial counsel never impeached Liu’s testimony with this information gleaned from the police reports.
30Liu also testified that she saw Mr. Bruno at Candlewood the next morning, walking around “making his rounds. He always says hello to everybody.” She also saw him later that day working on his Camaro, sometime between 5 and 7 PM. She also saw him on Sunday, and Monday morning around 8 AM sitting on his car talking with his son (R380-81).
24 guy and ransacked it.” Mr. Bruno sent his son in first to give him an alibi. Then
Mr. Bruno stepped in and had a few beers with him. According to Mahue, Mr.
Bruno said that “[w]hen this guy got up to empty the ashtray, he pulled the bar out from his pants, he said, and started hitting him on the back of the head. He said the guy fell to the ground and he was still alive, and he shot him with a pillow muffling”
(R507-08).31 Some time prior to this, Mr. Bruno mentioned that there was somebody in the C building “that he knew that he recognized . . . [and was going to get even] for what he did to his buddies in Viet Nam” (R568-69).32
2. Scientific Evidence.
Physical evidence and expert testimony was also introduced at trial. Pat
Hanstein, the first detective on the scene, testified that when he entered the apartment it was relatively neat and clean (R494). There was a pillow over the head
31As with the other central prosecution witnesses, the jury never heard substantial impeachment evidence as to Archie Mahue due to trial counsel’s failures. For example, in Mahue’s deposition, he stated that he was only coming forward with his incriminating story about Mr. Bruno because he was “tired of this” and “I’m going to settle it” and that “I could hang him myself” by coming forward with the alleged confession, and “I think this here alone should hang him” (T402- 03). This powerful admission by Mahue as to his motivation for coming forward with damaging testimony against Mr. Bruno was never provided to the jury, however.
32Again, Mahue’s account is more than dubious because Mr. Bruno nor the victim had ever served in Vietnam.
25 of the victim, which had holes in it, along with hair and blood (R487). Hanstein noted the entertainment center seemed to be missing equipment; several jacks were not connected, and there were clean spots surrounded by dust rings (R497). While no narcotics were found at the scene, the officer did find “narcotic paraphernalia” in the victim’s apartment (R514).33 He could not tell whether the apartment had been broken into, and none of the keys found in the apartment fit the lock on the door (R517). Several latent prints were lifted from the apartment, but none matched Mr. Bruno (R514). Hair samples from the deceased’s hands did not match Mr. Bruno, and turned out to be the hair of the deceased (R515, 523).34
33According to police reports, a “black ceramic type pipe containing possible marijuana residue” was found on a table adjacent to the sofa in the victim’s living room (PCR2-46). This item was part of Mr. Bruno’s request for DNA testing, as was an empty crushed box of Marlboro cigarettes taken from the scene by law enforcment (Id.).
34According to the forensic lab report, a hair located on the victim’s left hand “could be” associated with a known hair of the victim (PCR2-45). A hair “from right middle finger” of the victim, however, revealed it was a human hair but no opinion as to the source of the hair could be ascertained by the lab (PCR2-45). This hair is part of what Mr. Bruno sought to be tested in his motion for DNA testing (Id). Scrapings were also taken from the right and left hands of the victim (PCR2-46; 63). These scrapings were some of the items of evidence collected by law enforcement that Mr. Bruno sought to have tested by way of his motion for DNA testing (Id.). Other hairs aside from those found on the deceased’s hands were also collected at the scene, including hairs removed from the victim’s right and left shoulder area, right hip, left back area, and a pillow from the victim’s apartment (PCR2-4). These items, too, were part of Mr. Bruno’s request for DNA testing (Id.).
26 Hanstein took part in the search for the gun and crowbar. Gun pieces were found near where Mr. Bruno had told them to look (R503). Three different canals were ultimately searched. He was there when the gun was found (R503). Hanstein also recovered the sneakers from Jody Spalding that Mr. Bruno was supposedly wearing at the time of the crime (R503). Sgt. Beck recovered the gun casing in one of the canals with the help of Jody Spalding (R558).
From the bullets recovered from the victim’s body, a comparison was made with the gun (R553-55). Firearms examiner Patrick Garland concluded one of the bullets was fired from the gun that was recovered (R579). The other fragments were too small for a comparison. He found gunshot residue on the bottom of the pillow (R583).
A serologist testified that there was blood on the sneakers that other witnesses said Mr. Bruno had been wearing at the time of the crime (R592). There was not enough blood on the sneakers to discriminate other characteristics, even whether it was animal or human (R592, 595), or how long it had been there.35 The hairs on the deceased hands were attributable to the victim, not Mr. Bruno (R596).
Dr. Ongley, the Medical Examiner, testified that the cause of death was
35These sneakers were also items that were included in Mr. Bruno’s motion for DNA testing (PCR2-47; 49).
27 multiple head injuries and two gunshot wounds to the head (R531). Injuries to the deceased included a laceration of the lip extending to the underlying teeth, which were fractured, either because the deceased was hit of fell down (R533). There were injuries to the back and shoulders over the right upper back angling across the shoulders. Two “pattern contusions” were on the back where it was struck with a blunt instrument (T534). On the scalp there was a series of lacerations on a line behind the ears ranging in size from 1 1/8 to 1 1.4 inches (R534). The injuries were caused by “blunt impact.” There were a variety of skull fractures and bleeding around the brain associated with both the blunt impact and gunshot injuries (R535).
The injuries were “consistent with” infliction by a crow bar or tire iron (R535). The blunt impact injuries were inflicted before death occurred, and those injuries themselves would have resulted in death within a period of hours (R535-36). Both gunshot wounds were also fatal, the deceased would have become immediately unconscious and died within a short time (T536). There were also injuries on the palm of the right hand, and to the middle finger, caused by a sharp edge (R537).
Dr. Ongley put the approximate time of death as 24 to 36 hours before he examined the body on August 11 at 4:00 P.M. (R542). He could not say whether the hand wounds were defensive in origin (R544-45; 548). He also found that, at the time of
28 death, the deceased had a blood alcohol level of .16, which meant the person had consumed approximately eight ounces of alcohol (R547-48).
29 SUMMARY OF ARGUMENTS
1. The lower court erred in denying Mr. Bruno’s motion for DNA testing pursuant to Fla. R. Crim. P. 3.853, as well as a complementary argument set forth in his Rule 3.851 regarding Mr. Bruno’s substantive right, under federal constitutional law, to DNA testing. Mr. Bruno’s Rule 3.853 motion more than satisfied the criteria to obtain testing of the requested items. However, the lower court simply concluded that based on the “evidence” against Mr. Bruno as set forth in this Court’s direct appeal opinion, Mr. Bruno could not establish that the DNA evidence would have exonerated him or mitigated the sentence. The lower court erred by limiting its review to the “evidence” set forth in a direct appeal opinion. In every capital case there will be a direct appeal opinion. If the existence of an opinion affirming a conviction is sufficient to deny a DNA request, then the rule and statute are illusory, in violation of due process of law. The lower court failed to meaningfully review the entirety of the record, including evidence adduced in postconviction proceedings and extra-record affidavits from Micki Dickoff and
Jennifer Ladell. Review of all of these materials more than establishes that identity was disputed at trial, that Mr. Bruno maintains that he is innocent, and that favorable results would impact both his conviction and sentence of death. Because
30 the lower court erred in denying Mr. Bruno’s Rule 3.853 and 3.851 motions, reversal is warranted.
2. In his Rule 3.851 motion, Mr. Bruno argued that he should be entitled to an evidentiary hearing based on allegations of bad faith destruction of latent fingerprints by state officials in 2001. In the alternative, Mr. Bruno argued that the requirement of a “bad faith” demonstration should be altered in favor of a lesser standard. The lower court erred in rejecting this claim, and reversal is warranted.
This claim should be remanded in conjunction with Argument I so that Mr. Bruno can proceed to establish his wrongful conviction and sentence.
31 ARGUMENT I
MR. BRUNO WAS ERRONEOUSLY DENIED HIS RIGHT UNDER FLORIDA LAW TO OBTAIN DNA TESTING OF THE AVAILABLE PHYSICAL EVIDENCE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.36
A. Substantive Right to DNA Testing.
Section 925.11, Fla. Stat., adopted in 2001, extended to convicted criminal defendants the substantive right to obtain DNA testing in order to challenge their conviction or sentence. When this Court issued Fla. R. Crim P. 3.853, it established the court procedure to be employed when exercising that substantive right. Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807
So.2d 633 (Fla. 2001). Rule 3.853 sets forth the pleading requirements to be used by a convicted defendant to obtain DNA testing of biological evidence. “[T]he purpose of section 925.11 and rule 3.853 is to provide defendants with a means by
36This argument presents a consolidation of Argument I from Mr. Bruno’s Rule 3.851 motion (PCR2-86-99), and the Rule 3.853 motion for DNA testing (PCR2-44-50). Both arguments below presented issues relating to Mr. Bruno’s request for DNA testing. The Rule 3.853 motion presented Mr. Bruno’s request per the provisions of the rule, and the Rule 3.851 motion presented constitutional arguments in support of Mr. Bruno’s substantive constitutional right to DNA testing in light of the statute providing defendants a right to DNA testing in the State of Florida. This Court was faced with similar issues in Swafford v. State, Nos. SC03-1153 & SC03-931. In those cases, the Court reversed the denial of the Rule 3.853 motion and the order dismissing the defendant’s Rule 3.851motion based on DNA issues. See Swafford v. State, No. 03-1153 (Order, March 26, 2004).
32 which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’” Zollman v. State,
820 So.2d 1059, 1062 (Fla. 2nd DCA 2002) (quoting In re Amendment to Fla.
Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d at 636 (Anstead, J., concurring)).
Where the State of Florida extends a right or a liberty interest, the right or liberty interest may only be extinguished in a manner that comports with due process. This was explained by the United States Supreme Court in Evitts v.
Lucey, 469 U.S. 387 (1985). There, the Supreme Court noted that the States were not required to provide a right to a direct appeal of a criminal conviction.
However, where the right was nonetheless extended, due process protection attached:
The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms. For instance, although a State may chose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause.
Evitts, 469 U.S. at 400-01.37
37Similarly in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998),the United States Supreme Court found due process protection accompanied the extension of the right to seek clemency. In delivering the controlling plurality opinion for the Court, Justice O’Connor, along with three (3)
33 Having extended to Mr. Bruno a right to obtain DNA testing of the physical evidence in his case, the State of Florida can only extinguish that right in a manner that comports with due process. To deny Mr. Bruno DNA testing of the available physical evidence while other similarly situated capital defendants have received such testing demonstrates an arbitrary process that violates the Eighth and
Fourteenth Amendments. For example, this Court sua sponte ordered DNA testing in the case of Duckett v. State, Case No. SC01-2149 (Order dated 3/21/03), and at the request of the Appellant relinquished jurisdiction to permit DNA testing in Rivera v. State, Case No. SC01-2523 (Order dated 7/11/02).
B. The “Reasonable Probability” Standard.
other justices concluded that, “[a] prisoner under a sentence of death remains a living person and consequently has an interest in his life.” Id. at 288 (O'Connor, J., concurring in part and concurring in judgment). In finding that due process attached to the right seek clemency, Justice O’Connor referenced her concurring opinion in Ford v. Wainwright, 477 U.S. 399 (1986). There, Justice O’Connor had found that “‘[l]iberty interests protected by the Fourteenth Amendment may arise from two sources -- the Due Process Clause and the laws of the States.’” 477 U.S. 399, 428,(O’Connor, J., concurring in part, dissenting in part)(quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)). Justice O’Connor explained, “[R]egardless of the procedures the State deems adequate for determining the preconditions to adverse official action, federal law defines the kind of process a State must afford prior to depriving an individual of a protected liberty or property interest.” Ford, 377 U.S. at 428-429.
34 Rule 3.853 provides that in passing upon a motion for DNA testing, the circuit court should assess “[w]hether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the
DNA evidence had been admitted at trial.” Thus, a motion for DNA testing should be granted “if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial.” Knighten v. State, 829 So.2d 249, 252 (Fla 2nd DCA 2002). In making this determination, the allegations contained in the motion must be taken as true. Borland v. State, 848 So.2d 1288, 1290 (Fla. 2003)(“If [ ] the State’s response creates a factual dispute, the trial court should conduct an evidentiary hearing to resolve the dispute.”).
The “reasonable probability” standard is a familiar legal standard that was first adopted and explained by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The next year, the Supreme Court used that standard for determining whether undisclosed exculpatory evidence was material.
United States v. Bagley, 473 U.S. 667 (1985). As this Court has explained, exculpatory and material evidence is evidence of a favorable character for the defense which creates a reasonable probability that the outcome of the guilt and/or capital sentencing trial would have been different. Garcia v. State, 622 So. 2d
35 1325, 1330-31 (Fla. 1993). This standard is met and reversal is required once the reviewing court concludes that there exists a “reasonable probability that had the
[unpresented] evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 680. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. at 419,
434 (1995).
The United States Supreme Court and this Court have explained that the
“reasonable probability” standard requires the court to analyze the evidence that the jury did not hear “collectively, not item-by-item.” Kyles v. Whitley, 514 U.S. at 436
(1995); Young v. State, 739 So.2d 553, 559 (Fla. 1999). Thus, the proper standard is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435 (footnote omitted). See Lightbourne v. State, 742 So. 238, 247-48 (Fla.
1999). Thus, the “reasonable probability” standard mandated by Rule 3.853 requires cumulative consideration of all the evidence not heard by the jury as a result of either the State’s failure to disclose under Brady or defense counsel failure
36 to adequately investigate under Strickland when determining whether there is a
“reasonable probability” of a different outcome.
Further, it is not a question of whether there was sufficient evidence to convict. In Kyles, the Supreme Court explained:
[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance for the prosecution.
514 U.S. at 453.
Thus, the fact that an eyewitness identified the defendant at trial is no bar to obtaining DNA testing under Rule 3.853. Manual v. State, 855 So. 2d 97 (Fla. 2nd
DCA 2003); Knighten v. State, 829 So.2d 249, 251 (Fla. 2nd DCA 2002). With favorable DNA results, the eyewitness “testimony may not have been sufficient to convict.” Riley v. State, 851 So. 2d 811 (Fla. 2nd DCA 2003).
Certainly, favorable DNA results establish a “reasonable probability” of a different outcome in a circumstantial evidence case. In Huffman v. State, 837
So.2d 1147, 1149 (Fla. 2nd DCA), the denial of DNA testing was reversed where the trial court had relied upon “significant circumstantial evidence” presented at trial to conclude that there was no reasonable probability that favorable DNA evidence would have led to an acquittal.
37 C. The Circuit Court’s Analysis Was Erroneous.
Mr. Bruno’s motion for DNA testing and his Rule 3.851 motion alleged, in pertinent part:
3. On August 11, 1986 the body of Lionel Merlano was discovered by law enforcement. Mr. Merlano had been beaten and then shot twice in the head at close range. Examination of his body by the medical examiner provided evidence that his death was the result of multiple injuries, including gunshot wounds to the head and multiple lacerations to the head. The medical examiner's report indicated that "Hair are found on the hands. The palms are bloody". Attachment A. A Broward County Sheriff's Office lab report dated April 30, 1987 lists items that were collected and submitted for analysis:
1. Hair from right middle finger;
2. Hair from left hand;
3. Hair standards-head-victim;
4. Hair standards-head-suspect.
Attachment B. The report revealed that "[o]ne caucasian head hair was microscopically observed in item #2. This hair could be associated to the head hair standards in item #3. Item #1 revealed the presence of human hair fragment no opinion may be rendered as to the source of the hair."
4. A property receipt, dated 8/12/86, established that the following evidence was collected at the autopsy :
1. One hair from right middle finger;
2. Hairs from left hand;
38 3. Nail scraping right hand;
4. Nail scraping left hand;
5. Victim's head hair sample;
6. Tube of victim's blood.
Attachment C. Detective Edgerton's report at Page 14 of 30 describes how the hands had been bagged before the evidence was taken. Attachment D.
5. Additional physical evidence was collected at the crime scene and elsewhere containing biological material:
a. A black ceramic type pipe containing possible marijuana residue, which was not tested, was found on a table adjacent to the three cushion couch in Merlano's living room as noted on Page 4 of 30, Supplemental report of Detective Robert Edgerton; b. One empty (crushed) box of Marlboro cigarettes taken from the scene by BSO, as noted on Page 6 & 7 of 30, Supplemental report of Det. Robert Edgerton; c. One partially full pack of Salem cigarettes taken by BSO from the scene, as noted on Page 7 of 30, Supplemental report of Det. Robert Edgerton; d. One pair white high top Converse sneakers (size 11) taken from Jody Spaulding by Det. Edgerton, as noted on Page 7 of 30, Supplemental report of Det. Robert Edgerton;38
38An August 19, 1986 report by Det. Patrick Hanstein states that "[i]t did appear that there were spots of blood on the sneakers, and on this date they were transported to the Broward Sheriff's Office Crime Lab for analysis under BSO Lab #7571V. The sneakers were entered into NLPSD Inventory #4035." Attachment E.
39 e. Hair standard from victim removed on scene by BSO, as noted on Page 7 of 30, Supplemental report of Det. Robert Edgerton; f. Hair removed from victim's left and right shoulders, from right hip, from left back, and pillow removed from scene by BSO, as noted on Pages 7-8 of 30, Supplemental report of Det. Robert Edgerton; g. Six blood samples removed from scene by BSO, as noted on Pages 7-8 of 30, Supplemental report of Det. Robert Edgerton;
Attachment F. Property receipts for the Converse sneakers, the brown pillow, and the hair standards of the victim are attached. Attachment G.
6. No DNA testing was ever conducted of the biological evidence collected in the Merlano homicide. Such testing was not available prior to Mr. Bruno's trial. Further, no DNA testing of the fingernail scrapings collected from Mr. Merlano's body was ever conducted. Mitochondrial DNA testing of hair was only recently been found to be admissible in judicial proceedings. State v. Smith, 100 Was. App. 1064 (Ct. App. Wash. 2000), State v. Underwood, 518 SE 2d 231 (Ct. App. S.C. 1999). The testing of the hair evidence using mitochondrial DNA testing certainly could not have been conducted prior to the perfection of such testing techniques. Such testing can now analyze the mitochondria DNA present in hair and match it to the mitochondria DNA present in the known hair. It can now be definitively determined which of the unknown pubic and head hairs actually originated with Mr. Merlano. It can also be definitively determined whether any of the hairs originated with Mr. Bruno.
7. The definitive answers that could be provided through DNA analysis of the biological evidence would provide the answers that law enforcement sought when the evidence was first submitted in 1986 for forensic analysis. Obviously, the State believed at the time of the submissions that the biological evidence could identify the
40 perpetrator of the Merlano homicide. DNA could definitively identify the perpetrator now.
8. The evidence was last known to be in the possession of the Froward County Sheriff's Department and/or the Clerk of Circuit Court.
9. Although Mr. Bruno testified at trial about his involvement in the homicide of Mr. Merlano, he has always maintained that he did not kill Mr. Merlano. See Bruno v. State, 807 So. 2d 55, 60 (Fla. 2001)("[Bruno's] strategy at trial was to raise a reasonable doubt in jurors' minds by claiming that Jody Spalding was the killer"). His false confession was extracted by undue pressure by law enforcement and by a desire to protect his minor son, Michael Bruno, Jr., from prosecution. See Bruno v. State, 574 So. 2d 76, 80 (Fla. 1991)("[The fact that Bruno's confession was motivated in part by concern over the welfare of his son does not provide a basis for suppressing the confession"). Mr. Bruno's son was the only witness who testified at the trial that he witnessed the killing of Mr. Merlano. Identification of Mr. Bruno is a genuinely disputed issue in the case. By showing that he is not the source of the hairs or nail scraping residue found on the body of Mr. Merlano, Mr. Bruno can establish that someone else murdered Mr. Merlano. Knighted v. State, 829 So.2d 249 (Fla. 2d DCA 2002). Likewise, testing of the cigarette packets, the marijuana pipe and the sneakers can establish the presence at the crime scene of DNA profiles that are not Mr. Bruno's.
10. The identity of the assailant of Mr. Merlano was litigated at trial and has been disputed during the post-conviction litigation process. The DNA testing of all the biological evidence could establish that Mr. Bruno did not murder Mr. Merlano. The DNA testing will bear "directly on [Mr. Bruno's] guilt or innocence. Tollman v. State, 820 So.2d at 1063.
11. This motion is timely filed pursuant to Rule 3.853(d) which allows inmates up until October 1, 2003 in which to file a motion requesting DNA testing.
41 (PCR2-45-49; 86-92).
In its order denying the motion for DNA testing, the lower court relied on this Court’s decision denying DNA testing in Robinson v. State, 865 So. 2d 1259
(Fla. 2004), the Third District’s decision in Marsh v. State, 812 So. 2d 579 (Fla. 3d
DCA 2002), and this Court’s recitation of the evidence in its opinion denying Mr.
Bruno’s direct appeal (PCR2-1028-29). Reliance on these three sources, to the exclusion of the record in its entirety, as well as the additional extra-record allegations made in support of the motion, was error.
First, reliance on Robinson and Marsh is misplaced. In Robinson, the defendant, under an active death warrant, sought DNA testing of various items of evidence including cigarette butts, beer cans, the victim’s clothing, hair, and the rape kit taken at the time of the offense. Robinson, 865 So. 2d at 1265. The facts of Robinson, however, are significantly distinguishable from those in Mr. Bruno’s case. Robinson involved a case where the defendant “stipulated that he shot the victim twice in the head, but claimed that the first shot was accidental and took place after the two engaged in consensual sex.” Id. at 1266. Thus, in the view of the Court, Robinson’s “identity and physical contact with the decedent are not at issue.” Id. In reaching this conclusion, the Court cited to Marsh, another case
42 relied on by the lower court in denying Mr. Bruno’s motion for DNA testing. Id.
Reliance by the lower court on Marsh is also misplaced, as the defendant in that case relied on a defense of consensual sex, not identity. Marsh, 812 So. 2d at 579.
In contrast to Robinson and Marsh, the defense at Mr. Bruno’s trial is that he did not commit the murder, as even this Court has acknowledged. Bruno II at 60
(“[Bruno’s] strategy at trial was to raise a reasonable doubt in jurors’ minds by claiming that Jody Spalding was the killer”). Hence, to conclude that identity was not an issue at Mr. Bruno’s trial is to overlook the actual defense presented at trial.
The lower court also ruled that the recitation of evidence from this Court’s direct appeal opinion refuted Mr. Bruno’s motion for DNA testing:
The facts set forth in the Florida Supreme Court’s opinion affirming Mr. Bruno’s conviction and the trial court’s imposition of the death penalty in Bruno v. State, 574 So. 2d 76 (Fla. 1991), clearly demonstrate that the identity of the Defendant as the perpetrator of the Murder of the Victim is conclusively proved. Not only did the Defendant confess to the commission of the murder, but the Defendant’s fifteen year old son testified that he was an eyewitness to the murder. Testimony was offered that the Defendant borrowed a .22 caliber pistol from a friend who also testified at trial. Defendant told the police where they would be able to find the gun in the canal. The gun was subsequently retrieved from the canal and was identified as the murder weapon. The Defendant made other inculpatory admissions to other witnesses, all of which tied him to the murder as the perpetrator.
43 (PCR2-1019-30).39 Reliance on a direct appeal opinion affirming a conviction is not an adequate basis for denying Mr. Bruno’s Rule 3.853 and/or his Rule 3.851 motion. In just about every criminal case (and certainly in every capital case) there is going to be an opinion affirming a conviction and sentence. Reliance on such in order to extinguish a defendant’s right under Rule 3.853 and the statutory provision granting the substantive right to DNA testing does not comport with due process or the “reasonable probability” standard attendant to the analysis. Moreover, the mere existence of a direct appeal opinion affirming a defendant’s conviction would render illusory the substantive right to seek postconviction DNA testing granted by the State of Florida. For example, in Collins v. State, 869 So. 2d 723 (Fla. 4th
DCA 2004), the Fourth District addressed a consolidated direct appeal and a motion for DNA testing that had been filed while the direct appeal was pending.
The Court went on to affirm the defendant’s convictions and sentences but, at the same time, reversed the summary denial of the defendant’s motion for DNA testing.
Id. at 724. Clearly, this situation exemplifies that affirmance on appeal is irrelevant
39The State’s position opposing the DNA testing also relied on the “evidence” discussed in this Court’s direct appeal opinion (PCR2-141-42).
44 to the ability of a defendant to meet the prima facie case for obtaining DNA testing.40
In order to properly assess Mr. Bruno’s motion, the lower court must evaluate not only the allegations contained in the DNA and Rule 3.851 motions, but also review the cumulative information that the jury did not hear.41 Indeed, Mr.
40As set forth in the statement of the facts above, there was substantial evidence more than calling into question the reliability of the State’s case at trial, evidence which the jury did not hear and which must be considered in the context of Mr. Bruno’s request for DNA testing. For example, the trial court relied on the fact of Mr. Bruno’s “confession” (PCR2-1029). However, as explained above, Mr. Bruno challenged the confession at trial as being the product of undue duress. While this Court affirmed the denial of his motion to suppress, this fact is not relevant to the requirements of Rule 3.853. The court also relied on the eyewitness testimony of Mr. Bruno’s son; however, as a matter of law, this does not defeat a motion for DNA testing. See Manual v. State, 855 So. 2d 97 (Fla. 2nd DCA 2003); Knighted v. State, 829 So.2d 249, 251 (Fla. 2nd DCA 2002); Riley v. State, 851 So. 2d 811 (Fla. 2nd DCA 2003); Saffold v. State, 850 So. 2d 574, 577 (Fla. 2d DCA 2003). Other testimony relied on by the trial court all came from witnesses such as Jody Spalding, Sharon Spalding, Archie Mahue, and others, all of whom had substantial credibility problems, as explained in the earlier section of this brief. Riley, 851 So. 2d at 811 (defendant’s allegation that trial witnesses had “significant” credibility problems and “gave inconsistent descriptions” was sufficient to establish that identify was a disputed issue at trial). Moreover, it must be remembered that, in face of the allegedly “strong” case for guilt that the State and lower court rely on, the jury deliberated at the guilt phase for over 26 hours. The length of these deliberations, and the narrow vote at the penalty phase, belie the putative “strength” of the State’s case at both phases of Mr. Bruno’s capital trial proceedings.
41The trial court denied Mr. Bruno’s motions a mere five (5) days after entertaining argument on both the DNA motion and the Rule 3.851 motion, raising a question as to the court’s ability to meaningfully review the extensive record in Mr.
45 Bruno expressly incorporated into his Rule 3.851 motion the prior postconviction motion, evidentiary hearing transcripts, exhibits, and also submitted additional sworn affidavits from Micki Dickoff and Jennifer Ladell which further buttressed
Mr. Bruno’s claim of innocence (PCR2-98; 153-55; 192). Ms. Dickoff’s affidavit provided:
1. I am a resident of the State of California, Los Angeles County, and am over the age of eighteen. I live at 2405 4th Avenue, Los Angeles, California, 90018. I have personal knowledge of the facts set forth below and if called and sworn as a witness, I could and would testify competently to them.
2. I have been Michael Bruno’s pen pal since 1993. I met Michael because of another death penalty case I was researching in Florida. I am an independent filmmaker working in the area of social justice.
3. Michael proclaimed his innocence from the first letter he wrote me in 1993. He told me about his case and how he confessed to save his 15-year-old son, Michael Bruno, Jr. (“Junior”). I was reluctant to get involved in his case, because of the time and emotional commitment a job like that takes.
4. However, all that changed in the spring of 1998 when I received an unexpected phone call from Michael’s son, Junior, who I had never talked to before. Junior was very upset. He was crying so hard, he could hardly catch his breath. He said: “They’re going to execute my father for a fist fight. He didn’t kill anyone.” The boy was obviously guilt-ridden and scared.
Bruno’s case.
46 5. I urged Junior to come forward and tell the authorities what he told me. He said he was afraid he would be charged with perjury. He then told me when he and his father were arrested, the cops threatened that he would be sent to death row where he would be raped unless he testified that his father killed the victim, Lionel Merlano. I asked Junior for his phone number so I could research the perjury laws in Florida and let him know what I found. When I tried to call him back, his number had been disconnected. I have not talked to Junior since that one phone call, although I have tried to reach him at other times.
6. Junior’s phone call was very disturbing to me. There was no doubt in my mind he was telling the truth. It was at this point that I began researching Michael’s case full time. I spent three months reading police reports, depositions, and trial transcripts. After this extensive research, I was convinced Michael Bruno was innocent of the murder for which he has been on death row for 17 years. I wrote a document, totaling 35 pages, tracking all the lies told by people who testified against Michael, who I believe were involved with the murder and robbery or who had knowledge about it – Jody Spalding, Chris Tague, Kevin Tillman, Michael Bruno, Jr., Archie Mahue, and Sharon Spalding. I have attached my research summary to this affidavit and incorporate it herein by reference for your review. I formed an opinion that these other people were involved in the murder/robbery or had knowledge of it based in part on their changing stories about the events on the night of the murder. Particularly telling was the testimony of all these witnesses that Michael Bruno, Sr. was back at the Spalding house well before 2:30 a.m, the probable time of the murder as testified to by an independent ear-witness, Bobby Bryant, the victim’s neighbor, who was adamant that he heard a scuffle in the victim’s apartment at 2:30 a.m. with the victim yelling
7. From my research I also learned that latent fingerprings were recovered from the crime scene, and, according to police reports, those fingerprints did not match Michael Bruno. I was convinced those fingerprints belonged to the real killer(s), and were key to proving Michael Bruno’s innocence.
47 8. Although I did not have money to hire an investigator, I found someone who would help me on a pro bono basis. I asked this Florida private investigatory, Valerie Bailey, to find those fingerprints. She spent over a year getting the runaround from the Broward County Sheriff’s Office and Ft. Lauderdale police. She was not able to find the fingerprints.
(PCR2-153-55). Ms. Ladell’s affidavit provided in pertinent part:
My name is Jennifer Ladell. I am a resident of the state of Hawaii county of Pearl City, and am over the age of Eighteen. I live at 1196 Hooli, CR. Pearl City, HI 96782. I have personal knowledge of the facts set forth below and if called and sworn as a witness, I could and would testify competently to them.
I have known Michael Bruno, Sr., for over 28 years. I met him when I was a ten or 11 year old at a camp near my home. I was friendly with his parents and often stayed with them on visits to Florida. I believe it was in 1990 that Michael Bruno Jr. telephoned me a few times (I will call him “Junior” in this statement to differentiate him from his father). Both Junior and his sister Alicia called me quite a lot when I was still living at 8640 Hillrose St. Apt. B8, Sunland, CA. During one of these calls, Junior was crying and I asked him what was wrong. He said: “My father is going to die because of me.” I asked him what he meant. He said something to the effect that he was drugged by the police before he took the stand and they threatened him that if he did not testify he would spend the rest of his life in prison and get raped in the ass.
I asked Junior if his father had killed the man and Junior said “no.” I then asked if he knew who did kill the man and he said “yes.” After some hesitation, Junior then said the cleaning lady’s boyfriend did it. I asked him what he meant by the “cleaning lady.” Junior said he meant the “lady who cleaned the crime scene up.”
I then encouraged Junior to talk to the lawyers and recant his statement about his father. He called me about two weeks later and
48 said that he did try, but the lawyers told him he could not recant the statement. I also sent a letter to Michael Sr.’s lawyers at that time about my conversation with Junior, but never hear [sic] if any thing ever came of it.
(PCR2-192).
The lower court refused to consider these additional materials, particularly the affidavits, concluding that they could not be considered as they were not filed with Mr. Bruno’s initial Rule 3.850 motion (PCR2-1028). However, this conclusion is incorrect. Nothing in the rule limits a defendant from alleging information in support of a request for DNA testing to only information that was included in prior postconviction proceedings.42 Mr. Bruno did not include these affidavits as independent claims of “newly discovered evidence” but rather as supporting allegations addressing his entitlement to DNA testing. The facts alleged in these affidavits more than call into question the lower court’s reliance on the trial testimony of Mr. Bruno’s son and this Court’s reliance on such in the direct appeal opinion.43 Moreover, the mere existence of an eyewitness does not mean that
42Indeed, this would run counter to the substantive right that defendants now have to seek DNA testing. DNA testing was not a right in existence at the time of Mr. Bruno’s initial postconviction proceedings.
43This Court has long held that under Rule 3.850, a movant is entitled to an evidentiary hearing unless the motion and record conclusively show he is entitled to no relief or unless the motion is legally insufficient. Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000); Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). The trial
49 identify was not a disputed fact and does not defeat a motion for DNA testing. See
Saffold v. State, 850 So. 2d 574, 577 (Fla. 2d DCA 2003) (“The fact that a movant was identified at trial by the victims does not itself lead to the conclusion that identification is not a disputed issue”).44
court must accept all allegations in the motion as true to the extent that they are not conclusively rebutted by the record. Gaskin, 737 So. 2d at 516. While the defendant has the burden of pleading a prima facie basis for relief, “an evidentiary hearing is presumed necessary absent a conclusive demonstration that the defendant is entitled to no relief.” Gaskin, 737 So. 2d at 516 (emphasis in original). Thus, under Rule 3.850, “the burden is upon the State to demonstrate that the motion is legally flawed or that the record conclusively demonstrates no entitlement to relief.” Id. In order to support a summary denial, the circuit court “must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Spencer v. State, 842 So. 2d 52, 69 (Fla. 2003). These principles are equally applicable to Rule 3.853. See, e.g. Borland v. State, 848 So. 2d 1288 (Fla. 2d DCA 2003).
44When a defendant is claiming actual innocence, as Mr. Bruno is, no procedural technicalities can be erected in order for a court to reach the merits of an issue. See Schlup v. Delo, 513 U.S. 298 (1995); Brown v. Singletary, 229 F. Supp. 2d 1345 (S.D. Fla. 2002). The execution of an innocent person is “the quintessential miscarriage of justice.” Schlup, 513 U.S. at 324-25. As Justice O’Connor has explained:
Regardless of the verbal formula employed--”contrary to contemporary standards of decency,” “shocking to the conscience,” or offensive to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”--the execution of a legally and factually innocent person would be a constitutionally intolerable event.
Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring).
50 Mr. Bruno thus submits that the lower court erred in denying his Rule 3.851 and Rule 3.853 motions, as he clearly met the burdens under the relevant rules for a hearing. Hairs that were collected from the victim’s body as well as scrapings from under the victim’s nails were never tested or identified to any person; DNA testing on those hairs, if such testing established that those hairs belong to neither Mr.
Bruno nor the victim, more than call into question the validity of his conviction and sentence of death. See Schofield v. State, 861 So. 2d 1244 (Fla. 2d DCA 2003)
(allegations that hair and fingernail scrapings from victim could establish that defendant was not the perpetrator were sufficient and denial of Rule 3.853 motion reversed).45 Mr. Bruno also requested testing on the narcotics paraphernalia located at the crime scene to determine whether any saliva was present and, if so, whether that saliva matched either Mr. Bruno or the victim. Any evidence
45The State cannot argue in good faith that the hairs in question could have belonged to any number of the various persons who testified in this case. In the first place, the hairs and the scrapings were found on the victim’s dead body; a casual visitor would not leave hairs and skin on a deceased person. Moreover, it was the State’s position that these people were never in the victim’s apartment. Nor is the issue that Mr. Bruno has to prove a “nexus” between the hair and “whether it shows that he didn’t do it, or whether it changes the penalty” as the lower court believed (PCR2-1051). Mr. Bruno does not have to prove his case at this stage, he merely has to meet the requirements of the rule, which he submits he did.
51 establishing that Mr. Bruno was not present at the crime scene would be clearly favorable as to both the issue of guilt and penalty. Testing of the blood spots on the sneakers that the State alleged Mr. Bruno was wearing when he committed the crime can also be tested to determine if the blood was even human blood and, if so, whether it matched the blood of the victim. If the blood was not human, then the State’s reliance and emphasis on the bloody sneakers would have been substantially called into question. If the blood was not human and did not belong to the victim, this fact too would have been exculpatory evidence.46 Surely, such evidence would have had an impact not only at the guilt phase but also at the penalty phase, particularly given the narrow recommendation for death and the striking of aggravating circumstances by this Court on direct appeal.
The analysis by the lower court required Mr. Bruno to establish that he would not have been convicted or sentenced to death, rather than merely allege sufficient information to obtain DNA testing under Rule 3.853. See PCR2-1025
(“The Court finds that the record of the Defendant’s trial as described by the
Florida Supreme Court in its order affirming the Defendant’s conviction for murder in the first degree, and in citations to the record contained in pages 19-23 of the
46The State alleged below that the blood sample from the sneakers had been “consumed” by testing done prior to trial (PCR2-1072). This is not a determination that can be made absent, at a minimum, an evidentiary hearing.
52 State’s Response to the Defendant’s Successive Motion to Vacate Judgment and
Sentence, clearly demonstrate that the results of the DNA testing of the requested evidentiary items would not be of such a nature that it would probably produce an acquittal on retrial or reduce the penalty suffered by the Defendant, considering the overwhelming evidence of the Defendant’s guilt”). By putting the cart before the horse, the lower court erred. Mr. Bruno has set forth more than sufficient allegations to satisfy the criteria of Rule 3.853. This case should be reversed with directions that Mr. Bruno’s demand for DNA testing on the items listed in his motion be granted.
53 ARGUMENT II
TO THE EXTENT THAT THE STATE HAS DESTROYED LATENT FINGERPRINT LIFTS AND/OR OTHER PHYSICAL EVIDENCE WITHOUT NOTICE TO MR. BRUNO, MR. BRUNO’S DUE PROCESS RIGHTS HAVE BEEN VIOLATED.
In his Rule 3.851 motion, filed in connection with his Rule 3.853 motion requesting DNA testing, Mr. Bruno argued that the lower court should conduct an evidentiary hearing to determine if evidence collected by law enforcement during the pendency of the case against Mr. Bruno was destroyed in violation of Mr. Bruno's due process right under both the Florida and the United States Constitution (PCR2-
99-102). In his motion, Mr. Bruno’s counsel alleged that their investigation has revealed that the latent fingerprint lifts obtained at the crime scene, Mr. Merlano's apartment, are apparently no longer in the possession of the Broward County
Sheriff's Department. Attachment F to Mr. Bruno's September 30, 2003 Motion for DNA testing documented that latent fingerprint lifts were obtained by Detectives
Edgerton and Hanstein during their investigation (PCR2-68-73).47
47Most of the latents were taken from the wall unit where the stolen stereo equipment sat in the victim’s apartment.
54 Correspondence obtained by counsel from the Broward County Records
Division, dated December 3, 2002, to a private investigator acting in Mr. Bruno's behalf, indicates that the Broward County Sheriff's Office destroyed Box# 87-43 related to Mr. Bruno's case number, 86-08362, on October 8, 2001 (PCR2-194).
Mr. Bruno’s motion further alleged that his counsel were never notified of this action. Investigation has also revealed that the latent prints were numbered as 951-
109 by the BSO crime lab. An affidavit by the private investigator was attached to
Mr. Bruno’s motion to support his allegations (PCR2-196-98).
The State's destruction of this evidence, while Mr. Bruno's appeal from denial of postconviction relief was still pending before this Court, is itself a violation of due process. Arizona v. Youngblood, 488 U.S. 51 (1988); California v. Trombetta, 467 U.S. 479 (1984). In Youngblood, the Supreme Court imposed on defendants the burden of demonstrating "bad faith" when evidence is lost or destroyed by State authorities. Mr. Bruno’s motion asserted that the destruction was in bad faith.48 In the alternative, Mr. Bruno argued, and argues herein, that
48In denying this claim, the lower court concluded that Mr. Bruno had failed to make a prima facie showing of bad faith (PCR2-1027). However, as Mr. Bruno’s motion establishes, he did make such a sufficient showing. Mr. Bruno does not, at this stage, need to prove bad faith, only make allegations necessary to warrant an evidentiary hearing. The lower court also concluded that this claim could have been raised at an earlier time such as in Mr. Bruno’s first postconviction proceedings (PCR2-1027). Of course, the allegations contained in the motion
55 "bad faith" is not a necessary element of a due process violation arising from the intentional destruction of physical evidence. Mr. Bruno submits that the standard announced by Justice Stevens in his concurrence in Youngblood should apply: "In my opinion, there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Given the advances in scientific testing of physical evidence that have occurred in the years since Youngblood was decided, the standard enunciated by the dissenters in Youngblood should be the proper standard. That standard would focus on the materiality of the evidence, its potential to exculpate, and the existence of other evidence on the same point of contention. Circumstances have changed in light of scientific advances and in light of Rule 3.853 which provides a substantive right to DNA testing of physical evidence. See Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1557 (May 1995) (noting that
"prosecutors and state officials under political pressure to reduce crime, as well as those with a firm belief in finality, may feel induced to destroy evidence as soon as the appeals process is initially exhausted. The supposed incentives that generally
stated that the destruction of the fingerprints occurred in 2001, well after the initial postconviction proceedings were litigated in the circuit court.
56 provide the state with a reason to preserve opaque evidence, if they exist prior to conviction, would virtually disappear after conviction. Cost and finality considerations may well push aside concerns about the convicted innocent, absent constitutional and legislative directions to the contrary"). While Mr. Bruno acknowledges that this Court has continued to use the Youngblood “bad faith” standard, he nonetheless encourages the Court to revisit the issue.
The prejudice to Mr. Bruno if the fingerprint lifts have been destroyed is patent. Obviously the lifts were never matched to Mr. Bruno because the State never introduced such evidence at the trial. Now no comparison can be made of the latent prints with the prints of Jody Spalding, Archie Maheu, Chris Tague or
Kelvin Tillman.49 Spalding and Maheu testified that they did not know the victim and were never in his apartment. Mr. Bruno's defense at the trial was that somebody else had murdered Lionel Merlano. In light of this fact, the State's destruction of the latent fingerprint lifts, which did not match Mr. Bruno, violated due process. Mr. Bruno submits that this claim should be remanded for a hearing,
49 Spalding and Tague were fingerprinted on March 19, 1987, some seven months after the murder of Lionel Merlano. The fingerprints of Maheu and Tilman were apparently never taken. Tague owned the gun that was identified as the murder weapon. The attachments to the Affidavit of Micki Dickoff track the contradictions in statements by these persons as well as Sharon Spalding, who later married Archie Maheu and who at one time was the cleaning lady at the Candlewood apartments where Lionel Merlano was murdered (PCR2-156-90).
57 and that the issue of the whereabouts of these critical fingerprints be addressed below along with the DNA issues that must also be remanded, as set forth in
Argument I.
CONCLUSION
For all of the foregoing reasons, this Court should reverse the circuit court’s order denying Mr. Bruno’s Motion for DNA Testing and his Rule 3.851 motion, remand for an evidentiary hearing, remand with directions that the requested DNA testing take place, and/or any other relief as deemed just and proper in this case.
58 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail, first-class postage prepaid, to Mitchell Egber, Office of
Attorney General, 1515 North Flagler Drive, Suite 9000, West Palm Beach, Florida, this 27th day of August, 2004.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2).
______William M. Hennis III Assistant CCRC-South Florida Bar No. 0066850
Todd G. Scher Special Assistant CCRC-South Florida Bar No. 0899641
Law Office of the CCRC-South 101 NE 3rd Ave., Ste. 400 Ft. Lauderdale, FL 33301 (954) 713-1284
59