Friday, April 27, 2012 CBELLVILLE IN THE CIRCUIT COURT OF THE TWELTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA THE STATE OF FLORIDA, Plaintiff. . v. CASE NO: 06- CF 3229,, g: ANDRE BRYANT, Defendant. Fri a :3 DEFENDANT MOTION FOR POST CONVICTION ?.COMES NOW, the Defendant ANDRE BRYANT pro se and ?rsuai?lt to. Fla. R. Crim. P., 3.850 moves this honorable court for an order vacating the judgment and sentence entered in the above styled cause for a new trial. In support of the foregoing motion, the Defendant submitted the following facts: 1. The circuit courts in and for Manatee county entered the judgment and sentence currently under attack 2. The defendant was charged by amended felony information with: Robbery With a Firearm., Fla. Stat. 3. After entering a plea of not guilty to the crime charged, the Defendant proceeded to trial by jury. The defendant did testify and was found guilty after trial by jury on March 8, 2007 4. On June 4, 2007, the Defendant was sentenced to 30 years state prison. EMAILED T0 JA AND CC 4/30/12 1 Friday, April 27, 2012 CBELLVILLE 5. A timely notice of appeal was ?led form this court?s judgment and sentence. The appeal was taken to the Second District Court of Appeal Florida. the Second District ?af?rmed? the appeal and mandate issued April 23, 2010. 6. A claim of ineffective assistance of appellate counsel was ?led in the Second District Court of Appeals pursuant to Rule 9.141 (C) Fla. R. App. P. The Petition was denied September 2011 - 7. No other motion Petition applications or requests have been ?led in reference to the judgment and sentence currently under attack. 8. During pre-trial, trial and sentencing the Defendant was represented Henry E. Lee 1834 MAIN STREET Sarasota, Florida 3423 6-5912 Friday, April 27, 2012 CBELLVILLE GROUND ONE THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF TRIAL COUNSEL WHEN COUNSEL FAILED TO INVESTIGATE AND CALL AN EXPERT TO TESTIFY ABOUT HUMAN PERCEPTION AND MEMORY FACTS ADDUCED AT TRIAL: this case is based solely on the identi?cation of Bryant by the witness/victims that were in the vehicle during the robbery. There is no physical evidence linking Bryant to the crime (TR 324). this crime is alleged to have happened an undisclosed amount of time just prior to 2349 hrs. (time of 911 call [Tr. 111]), on August 3rd, 2006. the reason Bryant became a suspect of this crime is because he was a black male driving by the scene around 0015 hrs., and acted suspiciously when police pulled in behind him (Tr. 167). The Robber was described by the witnesses, prior to viewing Bryant in the newspaper, as having light skin, big eyes, and lots of pimples (Tr. 236-37), which were also called acne scars(Tr. 255). These scars were so prominent that they merited the descriptive ?Crater face?(Tr. 265-66). Bryant has a totally clear, dark complexion with no acne or scarring(Tr. 311'). The only thing Bryant had in common with the Pre- Identi?cation description of the witnesses is he is black and had dreadlocks. Friday, April 27, 2012 CBELLVILLE The Robber was described as wearing a doo rag and a Hawaiian shirt(Tr. 110). Mr. Bryant did not have a D00 rag or a Hawaiian shirt (Tr. 312-13), nor were any found by police in the area, nor the residence that Mr. Bryant came out of. The Victim was robbed for three to ten dollars, Bryant had over 1300.00 in his possession when he was arrested (Tr. 403?05). Lori and Chase Cline viewed the ?rst photo pack (Bryant the only person in both photo packs) in black and white and failed to make an identi?cation. The witnesses were shown the second photo pack (after Bryant appeared on the evening news).Ms. Cline(1) said at trial that she was 98% sure that number one was the robber. However, she nevertheless checked none at the time she viewed the photo pack (Tr. 114-15). The Kids, who Viewed Bryant in the newspaper prior to the second photo pack were able to identify Bryant in the second photo pack (Tr. 238, 257). Bryant's physical appearance is signi?cantly different than the pre-identi?cation description. There is no way these witnesses could demonstrate that their in court identi?cation was based solely upon an independent recollection of the robber at the time of the crime. Bryant was under police observation from the time he drove by the crime scene (Tr. 1 5 1?52,184) until he arrived at the house where he was arrested (Tr. 197- 202). Ms. Cline's property was found by Jessie Cannon in an area not on the route Mr. Bryant traveled (Tr. 314-316). Friday, April 27, 2012 CBELLVILLE The victim of the crime is a former road deputy with Manatee County (Tr. 104) whose husband is a serving deputy who responded to the scene (Tr. 40-41), raising the possibility overzealous police conduct, in an effort to close a case easily and successfully against one of their own.(l) Ms. Cline is a law enforcement veteran and knew that checking none on the photo pack indicated the suspect was not present in the photo pack. Based upon the facts stated above, the evidence was not overwhelming and raises the very real possibility that an innocent man has been convicted of a crime he did not commit. DEFICIENT PERFORMANCE: Counsel knew that the issue of identi?cation would dominate this trial, however, counsel did not even move to suppress or exclude identi?cation. With this knowledge counsel had a duty to investigate and prepare a defense of misidenti?cation. Counsel stated in Open Court when moving for a new trial based on newly discovered evidence that he believed he represented an innocent man. Here, Counsel failed to investigate and research experts in human perception (App. A) and cross racial identi?cation (App. B). The purpose of expert testimony is to ?assist the trier of fact in understanding the evidence or in determining a fact in issue.? There are a body of experts who commonly testify in jury trials on the unreliability of witness identi?cation and the effects of stress on memory and 5 Friday, April 27, 2012 CBELLVILLE human perceptions. Bruce K. Sidel, a recognized expert as well as a consultant to the FBI, BATF, U. S. Secret Service and the U. S. Military has published ?ndings that stress affects one?s ability to render a reliable identi?cation. This type of testimony is associated with what is known as ?Fight or Flight? reaction, and is admissible in Florida. An expert such as Sidel would have testi?ed (App. A) that Stress causes pupil dilation leading to a loss of near vision, depth perception, and night vision. It can cause perceptual narrowing (tunnel vision) resulting in an inability to identify a subject in detail, especially when a weapon is held away from subjects face. Also Flash bulb memory may occur where only some details may be recalled, like acne scars. Defendant anticipates more in depth testimony during fact development at an evidentiary hearing. Friday, April 27, 2012 CBELLVILLE PREJUDICE: In this case Ms. Cline admitted that she was focused on the gun to her child's head (Tr. 1 17-18). The robber was in the rear window behind her, not in her direct line of sight, in a dark vehicle, at midnight while back lit by the parking lot. The robber was in the shadows at an extreme angle and would have been hard to see even without stress and fear. Even though every witness's pre-identi?cation made speci?c reference to prominent acne scars, when presented by police with a suspect who had a clear complexion, after viewing this person as a suspect on television prior to the photo pack, these witnesses decided he must be the correct suspect. Had the jury been aware of how unreliable witness identi?cation is, especially cross racial and/or in high stress situations, based on the abundant evidence that Bryant did not commit the crime, there is a reasonable probability the jury would have returned a different verdict. Except for this unreliable identification which could have been greatly minimized by proper expert testimony, Bryant would not have been convicted. (Facts stated in Memorandum of Law and Argument are incorporated by reference.) Friday, April 27, 2012 CBELLVILLE GROUND TWO THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO MOVE TO SUPPRESS IN-COURT AND OUT-OF-COURT IDENTIFICATIONS. FACTS ADDUCED AT TRIAL: The facts alleged in this portion of ground one are incorporated by reference, but omitted for brevity. DEFICIENT PERFORMANCE: Counsel was de?cient for speci?cally not moving to suppress Tia, Chase, and Erica's identi?cations because they all Viewed Bryant in newspaper prior to line-up (Tr. 237-3 8) and Bryant's physical appearance is signi?cantly different than the pre-lineup description of these witnesses. Tia described the robber as light skinned, big eyes, and lots of pimples (Tr. 236?37), Chase called the robber a ?crater face? with ?acne scars.? (Tr. 265-66) and Erika said he had ?dents in his bad acne scars.? (Tr. 255) Mr. Bryant has a clear, dark complexion. Tia and Erika claimed Ms. Cline read them the newspaper article and showed them Bryant's photo prior to the photo line?up (Tr. 237,38, 256) and told them this is the man that did it (Tr.241). Chase did not recall Bryant's photo in the 8 Friday, April 27, 2012 CBELLVILLE paper, but did see the paper (Tr. 116, 269). Tia testi?ed that the robber had no facial hair (Tr. 242). Erika also testi?ed that the robber had no facial hair (Tr. 256). Bryant had facial hair the night of the robbery (Tr. 311). Lori and Chase viewed two separate photo packs, with Bryant?s photo being the only repeated photo in both. Nobody identi?ed Bryant in the ?rst photo pack. These witnesses testimony on identi?cation should have been suppressed, especially where Bryant speci?cally asked counsel to do so. Having these children identifying Bryant was all the more believable for its repetition. It bolstered Ms. Cline's in-court identi?cation to have every occupant of the vehicle walk through the court and identify Bryant. The state was an astute judge of what was needed to sway the jury. All the evidence in this case except the identi?cation indicates Bryant did not commit this crime. Ms. Cline's property was found where Bryant could not have put it, Fingerprints were lifted from bank cards and compared to Bryant with negative results, he does not have acne scars, is not light complected, he had $1300.00 in his possession when alleged to have committed a $10.00 robbery, and he was driving slowly by the crime scene 15 minutes after the robber ?ed on foot. Had the jury not been subjected to these witnesses whose testimony should have been suppressed, there is a reasonable probability that they would have discounted Lori Cline?s in-court identi?cation as unreliable, especially if an expert 'iFiriEewiAgSriI?E?l, 7201' 2 as described in ground one was called. Also because of Ms, Cline's failure to positively identify Mr. Bryant on any of the photo line-ups before Trial. GROUND THREE THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO CALL AN EXPERT ON DOG TRACKING AND INVESTIGATE THE TRACKING AND TRAINING RECORD AND OBJECT TO TESTIMONY NOT DISCLOSED UNTIL THE DAY OF FACTS ADDUCED AT TRIAL: The facts outlined in this section of ground one are incorporated by reference into this ground, but are omitted for brevity and to avoid repetition. DEFICIENT PERFORMANCE: Trial counsel is ineffective for not moving to suppress testimony or make an objection when testimony that police dog tracked subject to area where subject entered vehicle. First, prior to this evidence even being considered it would have to be shown that the dog was actually tracking the robber, and that the dog had the ability and training to discriminate between different human scents . Here, the state did not introduce any evidence that this dog could discriminate between different 10 Friday?prilii??oifCBELLVILLE human scents, thus, there is no predicate that would allow the of?cer to testify that his dog was tracking a speci?c scent in this parking lot. There is little doubt that lots of different people got into cars in this parking lot. The question at bar is did the robber do so. the of?cer testi?ed that the dog lifted its nose indicating the person tracked entered a vehicle. Thus, he implied that his dog was tracking the robber to the exclusion of every other person who had been in this parking lot all day. This is very important, here the dog did not track the route Ms. Cline described the attacker ?ed, however, testifying that the person entered a vehicle was important to account for Bryant not being on foot. Here this is pure speculation and should not have been allowed. DISCOVERY VIOLATION Trial counsel stated that he knew some of the information from the undisclosed report, at the suppression hearing a week prior to trial, does not mean that he knew the name of the K-9 of?cer or knew that one would be called for trial. Counsel was not provided the actual report or name of the witness until the day of trial. Then counsel was only provided the report of the ?rst of?cer. The second report was never provided. Counsel stated that he had not contacted the Witness because he was not provided his name until jury selection. Counsel had no time to depose this witness ll Friday, April 27, 2012 CBELLVILLE and consider his testimony in relation to known facts. Because he did not depose this witness, he did not know this of?cer did not do the second tracking. This testimony was prejudicial and was not harmless. The late disclosure prevented counsel from being prepared to impeach and discredit this testimony. Counsel could not obtain the tracking and training logs of this dog which would have shown that the dog has failed to track in wooded environment, thus, merely because he lifts his nose does not indicate a suspect entered a vehicle. It would also have disclosed that this dog isn?t able to discriminate a human scent in the parking lot environment, thus, the testimony that the dog tracked an unsubject to where he entered a vehicle was not admissible. This testimony corroborated the identi?cation where Bryant was arrested in a vehicle and the of?cer testi?ed suspect entered a vehicle. This is the building of a circumstantial case to support a bad identi?cation. There is no physical evidence that Bryant committed this crime and allowing this inadmissible evidence here what physical evidence exist tends to prove Bryant did not commit this crime is harmful and caused the jury to return a verdict it otherwise would not have returned. 12 Friday, April 27, 2012 CBELLVILLE GROUND FOUR THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO MOVE TO DISMISS THE ARREST WARRANT BASED ON STATEMENTS AND FACTUAL OMMISSIONS THAT WOULD DEFEAT PROBABLE CAUSE. FACTS ADDUCED AT TRIAL The facts alleged and outlined in this section of ground one are incorporated into this ground, but omitted for brevity. DEFICIENT PRFORMANCE Detective represented that the victim had identi?ed Bryant in a photo lineup, this is incorrect and is a blatant misrepresentation of the facts without regard for the truth. This of?cer also stated in his search warrant application that there was a tape of the robber and that the detective had reviewed it and that the person in the tape looked like Bryant As brought out at trail, Ms Cline is the only witness to view the second photo pack prior to seeing Bryant on the news and she indicated that none of the people in the line-up were the robber. Because the facts alleged in the af?davit are untrue, and the true facts would defeat probable cause, and because the facts 13 Friday, April 27, 2012 CBELLVILLE omitted would also defeat probable cause on both the arrest and search warrant counsel was de?cient. PREJUDICE Omitted facts 1.) No witness was able to identify Bryant in photo line up. 2.) Bryant does not ?t the physical description, 3.) property was recovered in an area Bryant could not have placed them. 4.) Bryant was not dressed like the robber, 5.) Bryant had $1,300.00 on his person when the robbery was for $10.00. Misrepresented facts 1.) Detective testi?ed at trial that he never knew what defendant looked like beside booking information, booking pictures shows face only and he couldn?t see facial features when viewing the tape but said person on the tape looked like defendant. No witness identi?ed Bryant without viewing his photo in the news ?rst. Had this court been aware of these facts that were omitted or misrepresented, this court would have found no probable cause for the search or arrest warrant. (see, Memorandum of law for additional facts) GROUND FIVE THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO GET EXCULPATORY EVIDENCE OF DEFENDANTS ALIBI. 14 Friday, April 27, 2012 CBELLVILLE FACTS ADDUCED AT TRIAL The facts alleged and outlined in Ground one in this section are incorporated by reference into this ground but omitted for brevity DEFICIENT PERFORMANCE Defendant noti?ed counsel that at the time the crime was committed he was on the phone with his brother Roman Lang who was incarcerated in the Port Manatee County Jail. This call as all calls to inmates, was digitally recorded and would have established to the exclusion of a reasonable doubt. Counsel did not investigate this alibi or try to obtain a copy of the recording, which would have provided date, time, and where call was placed form. Speci?cally, Defendant alleges that both the tape and his brother were alibi evidence. That both would have shown that at 23:30 hrs, the defendant was in Palmetto Talking on the Phone to his brother. That they talked until exactly 23:30 when the phone automatically disconnects. This evidence coupled with a person who could drive the shortest route to the crime scene would have conclusively established that defendant could not have been on the phone where the phone call was placed from Palmetto, and is over 15 minutes away. This would establish that defendant cou1d not have committed the robbery. 15 Friday, April 27, 2012 CBELLVILLE The defendant did testify about this alibi (T443) which established that counsel new about the witness. Further, every lawyer knows that every phone call from the county jail is recorded. Since counsel failed to obtain the tapes he could not make an informed decision not to use them. This recording was available for trial. Had the jury been exposed to this evidence there is a reasonable probability that they would have returned a different verdict. No attorney operating within the limits of professional norms would not have investigated this hard evidence of his client?s innocence, especially an attorney who tells the court that he believes he is representing an innocent man. GROUND SIX THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO OBJECT TO OFFICER TESTIFYING AS AN EXPERT AND FAILED TO DISCOVER POLICE REPORTS OF THE K-9 OFFICER FACTS ADDUCED AT TRIAL The facts alleged and outlined in Ground one in this section are incorporated by reference into this ground but omitted for brevity The states discovery violation and counsels failure to object are on two levels. First, the state failed to disclose of?cer Kenneth McGowen as a witness 16 Friday, April 27, 2012 CBELLVILLE before trial, and Second, the State failed to ever identify Kenneth Mc Gowen as an expert who would provide opinion testimony. counsel did not object to McGowen testifying and this was his error. this error was compounded when Mc Gowen provided opinion testimony that is not accepted as true by the general scienti?c community and were pure speculation without a single objection from counsel. Had Counsel objected to the states attempt to call of?cer McGowen as an expert, the court would have been required to conduct a Richardson hearing and either he would not have been allowed to render his opinion, that when the dog lifted its nose that indicated the suspect entered a vehicle, or counsel would have been given an adequate opportunity to retain the service of an expert to rebut this assertion. This opinion is highly prejudicial. It places the robber in a vehicle and the defendant was in a vehicle. This testimony covered an important gap in the states case and was needed to obtain a conviction. There is no physical evidence that defendant committed the crime, and most of the physical evidence tends to prove defendant did not commit the crime. It was critical for the state to place defendant in a vehicle. This opinion is ?awed. An expert would have testified that when the dog lifts it?s nose it indicates the dog has lost the scent. This does not mean the scent is 17 Friday, April 27, 2012 CBELLVILLE gone. Some dogs do not have the ability to discriminate between different human scents and become confused in an area like a parking lot or physical ground where you can have hundreds or even thousands of different human scents over lied and due to the limits of the dogs breeding and or training, the dog has simply failed to track. This unreliable, speculative evidence was not relevant and had no place in this trial. This ?awed opinion rendered the jury verdict unreliable by placing the robber leaving the crime scene in a vehicle. Had this opinion been suppressed or rebutted, based on the lack of physical evidence and the unreliability of the identi?cation as detailed in the previous issues, there is reasonable probability that the jury would have returned a different verdict. 18 Way, Apr?r,? 2012 CBELLVILLE GROUND SEVEN THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO CALL AN EXPERT WITNESS TO SHOW THAT DEFENDANT WAS NOT THE PERSON ON TAPE FACTS ADDUCED AT TRAL The facts alleged and outlined in Ground one in this section are incorporated by reference into this ground but omitted for brevity After trial, counsel ?led a motion for a new trial alleging newly discovered evidence. At the hearing counsel introduced an expert who testi?ed that he had used NASA developed soft ware to enhance the tape from the store. He then did measurements based on bone structure and testi?ed that in his expert opinion that the person on the tape, who was the robber, is not Andre Bryant. Bryant and the person on the tape had totally different facial bone structures, different skin complexions and are not the same person (Hearing Transcript pg20- 24) This court found that the evidence was not newly discovered because it could have been discovered by counsel by the exercise of due diligence. This is true. This evidence should have been available for trial and the only reason it was 19 Friday, April 27, 2012 CBELLVILLE not is that counsel failed to exercise due diligence in his investigation and preparation for trial/. Because counsel failed to investigate this witness who was available and whose sworn testimony is of record ,this case testimony incorporated by reference he was not called to testify. In this case Ms. Cline admitted that she was focused on the gun to her childes head (T.T. 117-118) He was not directly in her line of sight, it was dark, the robber was shadowed and backlit, Bryant did not ?t the physical description or have the distinct marks and scars that all witness agreed were prominent on the robber. Had this jury been aware that according to an expert In photo interpretation and enhanced that Andre Bryant was not the person who appeared in the store video, they would have found a reasonable doubt as to Bryant?s guilt and returned a different verdict. This identi?cation issue was well known prior to trial and counsels? failure to investigate, prepare and develop a coherent defense based on known facts and hard evidence is inexcusable. The Defendant was denied a reliable adversarial testing of evidence because counsel at every critical point in the case, trusted the state?s evidence rather than tested it. Except for this error and all the others outlined here, the Defendant would not have been convicted. Not only is there 20 77 Friday, April 27, 2012 CBELLVILLE more evidence of his innocence than guilt, the exculpatory evidence is more reliable than the inculpatory evidence. . GROUND EIGHT THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO MAKE A CONTEMPORANEOUS OBJECTION WHEN THE GUN WAS ENTERED INTO EVIDENCE. FACTS ADDUCED AT TRIAL In the case at bar defendant incorporates the facts and argument in this section of ground one by reference to ground. In this case, counsel ?led a motion to suppress the fruit of the search including the gun recovered in the duf?e bag. Counsel made extensive argument that the detective failed to include facts that were known to him and misrepresented facts so that it appeared that the $3,000.00 recovered was evidence of the robbery and failed to inform the court that witness could not identify Bryant as the robber. That people who knew Bryant said that was not him in the video. In short, counsel made a compelling and meritorious argument (Argument Incorporated be reference from suppression hearing) that there was no probable cause to search, thus the gun was inadmissible. (Argument and facts of ground four incorporate by reference but omitted for brevity) 21 Fridayj?pril 27, 2012 CBELLVEIE However, when the state introduced the gun into evidence counsel failed to object, effectively waiving this issue for appeal. A motion to suppress is insuf?cient to preserve an issue for appeal absent contemporaneous objection when evidence is introduced. Had counsel made the required objection there is a reasonable probability that on appeal, the District court would have found a Franks violation and reversed the conviction, or that based on the lack of physical evidence, the trial court would have sustained the objection and wouldn?t have allowed the gun into evidence. This duf?e bag was not limited to this crime, it was located in the house attic.(T.T 299) and was not relevant to this robbery. Except for counsel?s failure to object, this issue would have been preserved. Based on the facts as alleged here and ground four,, there is a reasonable probability that had the jury not been exposed to this evidence they would have returned a different verdict. 22 77 Friday, April27; 20? 2 CBELLVILLE RELIEF SOUGHT WHEREFORE, based on the facts alleged in this motion, the defendant Andre Bryant respectfully moves this Honorable court to: 1. Vacate and/or set aside the judgment and sentence entered in this case for a new trial, 2. At a minimum, ?Grant the Defendant an evidentiary hearing to resolve all disputed issues of material fact. And 3. ?Grant? the Defendant any further relief court may deem appropriate based on the facts alleged herein. It is so prayed Respectfully submitted ?24m Andre Bryant Dc# 813744 Graceville Correctional Facility 5168 Ezell Road Graceville, 1. 32440 OATH OF PETITIONER UNDER PENALTIES OF PERJURY, I declare that I have read the foregoing Motion for post conviction relief and the facts stated in it are true. Date: 920i], 2012 Andre Bryant Dc#"313744 Friday, April 27, 2012 CBELLVILLE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing motion for Post Conviction Relief has been furnished by US. Mail to: Mana?c (iota/#3 Cl?r?lZ Off? CI-rCcci} (burl? ?10. 076qu State Attorney Of?ce, 1112 Manatee Ave. West PO. Box 1000 qudon+on 3 09W Bradenton, Fl. 34206 On this: 31/1 day of 2012 mm Andre Bryant Dc# 813744 Graceville Correctional Facility 5168 Ezell Road Graceville, Fl. 32440 Id to Graceville Correctional facility on Prov 8" a for mallan Thursday, July 31, 2014 CBELLVILLE EMAILED TO D.K. AT SAO 7/31/14 CB IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. CASE NO.: 2006 CF 003229 ANDRE BRYANT, Defendant. ORDER (1) DENYING IN PART AND (2) DIRECTING THE STATE TO RESPOND IN PART TO THE MOTION FOR POSTCONVICTION RELIEF This matter is before the Court on the Defendant?s pro se Motion for Postconviction Relief, ?led April 25, 2012, in Case No. 2006 CF 003229; The Court has reviewed the motion, the court file, and is otherwise duly advised in the premises. After a jury trial, the Defendant was convicted of robbery with a ?rearm, and on June 4, 2007, he received a habitual felony offender sentence ofthirty years imprisonment with a ten- year mandatory minimum for possession of a firearm. Upon direct appeal, the judgment and sentence were af?rmed.l Present Motion In the Defendant?s Motion, he asserts eight grounds for postconviction relief, all sounding in ineffective assistance of his trial counsel. 'In order to establish a meritorious claim for ineffective of counsel, a defendant must first identify by has momg )ltl that were outside the ?broad range of reasonably competent performance under a Andre Bryant v. State, 30 So. 3d 591 (Fla. 2d DCA 2010333:: {13-2-2 as I. OED, 23m m0 0 Thursday, July 31, 2014 CBELLVILLE professional standards."2 Second, the defendant must further prove that the omission ?so affected the fairness and reliability of the proceeding that con?dence in the outcome is undermined.?3 In assessing an ineffective assistance of counsel claim, the court need not make a speci?c ruling on the performance by trial counsel when ?it is clear that the prejudice component is not satis?ed?? Moreover, the court must apply a strong presumption that counsel?s conduct fell within the range of reasonable professional assistance.5 In assessing an ineffective assistance of counsel claim, the court need not make a speci?c ruling on the performance by trial counsel when ?it is clear that the prejudice component is not satis?ed.?6 Moreover, the court must apply a strong presumption that counsel?s conduct fell within the range of reasonable professional assistance.7 It is within this framework that the Court reviews the Defendant?s claims for postconviction relief. Ground One Ineffective assistance of counsel for failure to call an expert witness on human perception and memory to rebut the eyewitness identi?cation testimony of the victims. In this ground, the Defendant argues that counsel should have prepared a defense of misidenti?cation by calling an expert in human perception, and memory or cross racial identi?cation, such as Bruce K. Sidel. The Defendant claims that such an expert would have testi?ed to the effect of stress on perception and memory and that these effects result in an inability to identify and to recall details of a stressful event. He argues that had the jury been aware of the unreliability of eyewitness identi?cation, there is a reasonable probability they would have returned a verdict of not guilty, especially given the inconsistencies between the 2 Kennedy v. State, 547 So.2d 912, 913 (Fla. 1939) (citing Strickland v. I'Vushinglon, 466 U.S. 668 (1984)). 3 Id. at 913 (citing Strickland). 4 Id. at 914; Taylor v. State, 62 So. 3d 1101, I (Fla. 201 I 5 State v. Hanam'a, So.2d 984, 985 (Fla. 2d DCA I998). 6 Id. at 914; Taylor v. State, 62 So. 3d I 10:, 1 II I (Fla. 201 7 State v. Hanania, 715 So.2d 984, 985 (Fla. 2d DCA I998). 7 Thursday, July 31, 2014 CBELLVILLE details of the witnesses? pre-identification description of the suspect and the physical characteristics of the Defendant. The State is directed to respond to this Ground One. Ground Two Ineffective assistance of counsel for failure to mov to suppress out-of-court identi?cation of the Defendant The Defendant argues that his trial counsel was ineffective for failing to move to suppress the in-court and out?of-court identi?cation of the Defendant by witnesses Tia Robinson, Chase Cline, and Erika Cline, because these witnesses were shown a newspaper story about the crime which included the Defendant?s photograph prior to their being shown the photo lineup. He states that he asked his trial counsel to move for suppression of the identifications, and that he is further'prejudiced by the out-of-court identifications because if his trial counsel succeeded in having the identifications suppressed, then Lori Cline?s in-court identification would not have been bolstered by their identifications. He believes that these identifications could have been suppressed because the witnesses cannot show that the identification was based solely on their independent recollection. Moreover, he asserts that because all of the evidence in the case, except the identification, showed that Bryant did not commit the crime, had the identifications not been permitted, he would have been exonerated. The State is directed to respond to this ground. Ground Three Ineffective assistance of counsel for failure to call an expert witness on dog tracking, for failure to investigate the dog?s tracking and training record, and for failure to object to discovery violation in which a witness and a report were not disclosed prior to the trial The Defendant argues that his trial counsel was ineffective for three reasons. all related to the testimony related to scent tracking ofthe alleged Suspect by dog. First, he argues that his trial counsel was ineffective for failing to move to suppress or to object to testimony that the dog Lu Thursday, July 31, 2014 CBELLVILLE tracked the suspect to where he entered a vehicle because the state did not establish that the dog could track the scent of a speci?c person or that, the dog was tracking the robbery suspect. He claims that the testimony that the dog lifted his nose, meaning the person tracked entered a vehicle, implied that the dog was tracking the suspect to the exclusion of all others who had been in the parking lot. Second, the Defendant contends that his trial counsel was ineffective for failure to obtain the training and tracking records of the scent tracking dogs in this case and therefore, he was unable to challenge the reliability of the dog. Third, the Defendant argues that his trial counsel was ineffective for failing to object to a discovery violation in which he did not receive the report or the name of the testifying witness regarding the dog tracking until the day of the trial. As a result, the defense was prejudiced because trial counsel did not have time to depose the witness and he was unaware that the witness was not the of?cer who did the tracking, the defense was unprepared to impeach the witness and discredit his testimony. He claims that these errors caused the jury to return a verdict of guilty. - Although the record is devoid of any facts to refute the claim that defense counsel did not obtain the tracking records of the dog, the Defendant was not prejudiced by defense counsel?s failure to attack the reliability of the dog tracking because the testimony related to the dog tracking on the night of the crime did not associate the Defendant in any way with the crime. The witness was only able to testify that the dog followed a scent to a nearby parking lot and then in lost the scent.8 Defense counsel successfully elicited testimony for the jury?s consideration that this tracking did not lead in any way to the Defendant or to any other evidence associated with the Defendant.9 Because the dog did not track the suspect to the Defendant or to any area associated with the Defendant, even records showing that the dog was an unreliable tracker could 8 Attachment 1: Transcript, Trial, [39: 9 Attachment 1: Transcript, Trial, 145223-1493. Thursday, July 31, 2014 CBELLVILLE not have bene?tted the Defendant. Therefore, the Defendant was not prejudiced by defense counsel?s failure to refute the testimony as to the dog tracking. As to the claim of ineffective assistance of counsel for failure to object to the discovery violation, trial counsel did object to the late disclosure of the witness and he. asked for a Richardson hearing, which was conducted.?0 During the hearing, the State testi?ed that the witness was disclosed to the defense at the motion to suppress hearing conducted on February 28, 2007, and that the State sent the report to the defense as soon as the State received it. The Court permitted the defense to speak to the witness before he testi?ed, and the Court found that, although there was a discovery violation, there was no prejudice to the defense because all the information was ?provided and known to the defense.?II Therefore, as to the claim of ineffective assistance of counsel for failure to object to the discovery violation, this claim is conclusively refuted by the record. This Ground Three shall be denied. Ground Four Ineffective assistance of counsel for failure to move to dismiss the arrest warrant The Defendant argues that histrial counsel was ineffective for failing to move to dismiss the arrest warrant because he contends that law enforcement of?cers lied on the warrant application when they stated that the victim identi?ed the Defendant in the photo lineup and when the detective reviewed the Walgreens surveillance tape of the robbery and thought that the Defendant looked like the suspect. He also complains that the af?davit omitted the facts that no witness could identify him in the photo lineup, that the Defendant was found with $1,300.00 on him when the robbery only involved $10.00, and that the description of the suspect provided by Attachment 1: Transcript, Trial, '0 Attachment 1: Transcript, Trial. l28:l6-137:21. 137220. Thursday, July 31, 2014 CBELLVILLE the victims does not match the Defendant, either physically or as to the clothing he had on at the time. On February 7, 2007, the defense filed a motion to suppress all evidence seized as a result of the search warrant in this case, and in the motion, the Defendant?s trial counsel makes the same arguments the Defendant sets forth in this ground.l2 On February 28, 2007,Vafter a hearing, the motion was denied. Because the Defendant?s attorney did file a motion to suppress, this ground is conclusively refuted by the record and shall be denied. Ground Five Ineffective assistance of counsel for failure to obtain alibi evidence. The Defendant states that his trial counsel was ineffective for failing to obtain phone records in support of the Defendant?s alibi to show that he was in Palmetto on the telephone to his brother at the Manatee County Jail until 11:30 pm when the jail phones automatically disconnect. He asserts that this evidence, together with the fact that the crime scene is over 15 minutes away, would show that he could not have committed the crime. He further states that he told his attorney about the alibi evidence and that it is common knowledge that the phone calls are recorded. The State is directed to respond to this Ground Five. Ground Six - Ineffective assistance of trial counsel for failure to object to Bet. Magown testifying to opinion evidence The Defendant argues that the trial testimony of Detective Magown was improper because he rendered an opinion, tie, that the tracking dog lifted its nose to indicate that a suspect entered a vehicle. The Defendant believes that an expert would have testified that when a dog lifts its nose, the behavior only indicates that the dog has lost the scent. He argues that his trial counsel should have made a timely objection to the testimony because Det. Magown was not '2 Attachment 2: Motion to Suppress, ?led Feb. 9, 2007. Thursday, July 31, 2014 CBELLVILLE quali?ed as an expert. He contends that a Richardson hearing should have been conducted as to the admissibility of this evidence. Section 90.604, Florida Statutes (2006), limits witness testimony: ?a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may be given by the witness's own testimony.? Under section 90.701, Florida Statutes (2006), If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when: 1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and (2) The opinions and inferences do not require a special knowledge, skill, experience, or training. At the trial, the detective testified that the dog lifted his nose when he lost the scent and he did not form an opinion: . . . Going west, we get to 43rd Street and 2nd Avenue. The dog got to the curb, his nose went up, which at that point the dog is now, has lost the scent on the ground, is now starting an area search, trying to pick up a scent through the air. Nothing was located.'3 Later, the prosecutor asked, in your training andexperience, when a dog loses the scent on the pavement as occurred on this day', would that be consistent with someone getting into a vehicle?? And the detective replied, ?Yes, it would.? Thereafter, defense counsel cross examined the witness and challenged him on the fact that the witness did not know anything about a vehicle the suspect would have gotten into and that there was no way to determine if the scent he had followed was the Defendant?s scent.? This witness was the handler of the who was working with him that night, and the trained responses of the dog would be'within his personal '3 Attachment 1: Transcript, Trial l42zl2-l42216. 14 Attachment 1: Transcript, Trial l44:l-l4922. Thursday, July 31, 2014 CBELLVILLE knowledge. It was not an improper opinion for the detective to explain that the dog lifting his nose was ?consistentwith? a scenario in which the scent was lost because the suspect got into a' vehicle. Because the testimony was not improper, trial counsel was net ineffective for not having objected to it. 1 Regarding the Defendant?s argument that his trial counsel should have objected to Detective Magown?s testimony because the State did not disclose him as a witness before trial, this issue was addressed in Ground Three, supra. This Ground Six shall be denied as conclusively refuted by the record. Ground Seven Ineffective assistance of counsel for failure to call an expert witness to Show that the Defendant was not the person shown in the videotape of the robbery The Defendant argues that his trial counsel was ineffective for not using due diligence to discover and call an expert witness with'knowledge of NASA-developed image enhancement software to demonstrate that the Defendant was not the person in the videotape of the robbery. The Defendant argues that his counsel raised this issue of the need for the Court to hear this expert in his motion for a new trial, and had the witness testify that the person 0n the videotape was not the Defendant. The Defendant explains that the court?s denial was based upon the fact that the evidence was not newly discovered evidence as it could have been discovered through the use of due diligence. He believes that this expert testimony could have resulted in his acquittal. The State is directed to respond to this Ground Seven. Ground Eight ?lneffective assistance of counsel for failure to make a contemporaneous objection to the ?rearm evidence which was the subject of the Defendant?s pre trial motion to suppress The Defendant?s counsel made a pretrial motion to suppress evidence, a firearm, based upon claims that the search warrant in this case was not founded upon probable cause that the ursday, July 31, 2014 CBELLVILLE Defendant was the perpetrator of this armed robbery because the af?davit on which the warrant was based misrepresented the facts of this case, including claims that the Defendant did not match the victims? description of the suspect, that the amount of money found in the Defendant?s home did not match the amount taken during the robbery, that one of the victims was not able to identify the "Defendant from the photo lineup, and that the detective said that the suspect, as shown in the surveillance video, resembled the Defendant. The court denied the motion, and during the trial, the gun was entered into evidence by the state without objection from the defense.l5 The Defendant bases his claim of prejudice on the fact that had the objection been entered, the trial court would have sustained it and the gun would not have come in, resulting in acquittal, or the appellate court would have found a Franks violation and reversed the conviction. The State is directed to respond to this Ground Eight. It is, therefore, ORDERED AND ADJ UDGED that: 1. Grounds Three, Four, and Six, of the Defendant?s pro. 56 Motion for Postconviction Relief are DENIED. 2. The State is directed to respond to Grounds One, Two, Five, Seven, and Eight of the Motion within 60 days ofthe rendition ofthis Order. 3. This is not a ?nal Order, and the Defendant does not have the right to appeal it. The Court shall enter a final order after the State has had the opportunity torespond and the Court has conducted an evidentiary hearing, if the Court determines that such a hearing is necessary.- DONE AND ORDERED in Chambers in Bradenton, Manatee County, Florida, this- day ofJuly 2014. Charles Roberts, Circuit Judge '5 Attachment 1: Transcript, Trial 299: Thursday, July 31, 2014 CBELLVILLE Attachments to Order: 1. Transcript, Trial, 128-137, 139?149, 299-301. 2. Motion to Suppress, ?led Feb. 9, 2007. CERTIFICATE OF SERVICE I certify that on thigg day ofJuly 2014, copies ofthe foregoing Order were furnished by mail to: Andre Bryant DOC #813744 Graceville Correctional Facility 5168 Ezell Road Graceville, FL 32440 Of?ce of the State Attorney 1 112 Manatee Ave. West PO. Box 1000 Bradenton, FL 34206?1000 W0 Judicial Assistant