Ashley v. State

• Citation: 433 So.2d 1263
• Decision Date: 27 June 1983
• Docket Number: No. AR-341,AR-341
• Parties: Clifford Leon ASHLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1263

433 So.2d 1263

Clifford Leon ASHLEY, Appellant, v. STATE of Florida, Appellee.

No. AR-341.

District Court of Appeal of Florida First District.

June 27, 1983.

Robert E. Warren, Jacksonville, for appellant.

Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

This matter is before us on application for leave to file a petition for writ of error coram nobis in the trial court or, alternatively, on petition for writ of habeas corpus. As grounds, petitioner Ashley alleges that new evidence has been discovered which meets the traditional coram nobis requirements and establishes substantial violations of his constitutional rights under both the United States and Florida Constitutions. We construe the application as alleging the following material facts.

Ashley was convicted in the circuit court under two separate informations filed April 30, 1975, alleging the unlawful sale of less than 10 grams of heroin. The first information alleged a sale to an undercover police officer on February 5, 1975, and the second alleged a sale to the same officer on February 18, 1975. Ashley retained private counsel, was arraigned on both informations on May 9, 1975, and was tried in the second case on October 15, 1975. Judgment was entered on the jury's verdict of guilty, and Ashley was sentenced to 15 years imprisonment. Ashley was subsequently declared indigent, and a public defender was appointed to represent him in the January 27, 1976, trial on the remaining information, in which he was convicted and sentenced to 15 years imprisonment, to be served consecutively with his first sentence. Ashley's convictions were appealed and affirmed by this Court, without opinion, on December 17, 1976. Ashley v. State, 341 So.2d 294 (Fla. 1st DCA 1976).

The cases against Ashley were made by officer Daniels, who was being used as an undercover agent by the Jacksonville sheriff's office while on loan from another county. Shortly after Ashley's arraignment in May 1975, his privately retained counsel learned through discovery proceedings that a confidential informant named Palmore, also known as "Loggie," had been used by the sheriff's department to help make the cases against Ashley and was present with officer Daniels at both alleged sales transactions. Ashley's private counsel made repeated but unsuccessful attempts to locate that confidential informant. Although Ashley's counsel did not know precisely what Loggie would testify, he believed that such testimony would be favorable to Ashley and therefore sought continuance of the trial pending further efforts to locate Loggie. On discovery, officer Daniels denied that Loggie had any material involvement, but Daniels's supervisor testified that Loggie was present and witnessed both sales transactions. Ashley's counsel filed a motion to compel the state to produce Loggie; and at the hearing before the circuit court on August 11, 1975, the state denied any knowledge as to Loggie's whereabouts and professed an inability to produce Loggie under any circumstances. The circuit court, accepting the state's representations, denied the motion and instructed the state that if it subsequently learned Loggie's whereabouts it had the affirmative duty to notify the court and call forward for further hearing defense counsel's motion to compel. The court specifically reserved ruling on the materiality of Loggie as a witness to the case.

Loggie had worked with officer Daniels throughout the entire period of his undercover activities. In early May 1975, Loggie was a principal witness for the state in a murder trial, after which, because of rumored threats on Loggie's life, a deputy sheriff drove him to the Jacksonville airport, provided him $1,000 expense money, and put him on a plane to Los Angeles, California. That officer claimed not to have inquired as to Loggie's address and made no arrangements to contact Loggie thereafter. After the hearing on August 11, the assistant state attorney prosecuting Ashley, in compliance with the trial court's directive, notified all state personnel involved in the case, including Daniels, that he was to be advised immediately if anyone learned Loggie's location. Thereafter, on September 13, 1975, Loggie called officer Daniels collect from California. Although they talked for approximately 20 minutes, officer Daniels claims he did not determine Loggie's address or phone number. Petitioner's private counsel learned of this call on September 17, 1975, and again sought a continuance of the trial until Loggie could be located and returned to Jacksonville. The trial court, however, denied further continuances and tried petitioner on October 15, 1975, without benefit of Loggie's testimony. The only witness testifying to petitioner's participation in the alleged drug sale was officer Daniels. Ashley's defense was that he did not participate in the drug transaction.

Ashley, although unable to state with reasonable certainty what Loggie's testimony would be, continued to complain that the state, by sending Loggie from Florida to California with full knowledge that he was a material witness to the alleged drug transactions, had deprived him of his constitutional rights to a fair trial and compulsory process for the attendance of witnesses, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. After Ashley's conviction was affirmed on appeal, he filed, pro se, a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure, which was denied by the circuit court. That order was affirmed by this Court with opinion in Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977), principally on the ground that all matters alleged had been or could have been raised on a direct appeal from the judgment of conviction. Having exhausted his state court remedies, Ashley next sought relief in the federal courts, persisting in his contention that he had been denied due process and the right to compulsory process. Ashley's petition for habeas corpus was denied by the federal district court. On appeal, the Fifth Circuit Court of Appeals, noting that the state was guilty of negligence in respect to Loggie's unavailability for trial, nevertheless held that the writ of habeas corpus was properly denied for lack of a "colorable need" for Loggie's testimony because of Ashley's inability to represent exactly what Loggie would testify. Ashley v. Wainwright, 639 F.2d 258 (5th Cir.1981).

Shortly after this decision, Ashley's court-appointed counsel in the federal court proceedings located and interviewed Loggie. On April 17, 1981, counsel obtained an affidavit in which Loggie stated: that he worked as a confidential informant for the Duval County Sheriff's Department from December 1974 through mid-May 1975 and worked with officer Daniels in making the two cases against Ashley; that he was present on the two occasions when Ashley was alleged to have sold drugs to Daniels; that Ashley did not sell any drugs to Daniels on those occasions; that he was promised by an assistant state's attorney that he would not have to take the witness stand or testify against any individual named as a defendant in any of the drug sales in which he participated; that he had been given expense money and driven to the airport to board a plane to Los Angeles in May 1975; that he had "always kept the sheriff's department in Duval County, Florida, aware of my location and aware of how I could be reached"; that shortly after the telephone call to officer Daniels in September 1975, the sheriff's department had sent him money in Los Angeles to aid his move to Eufala, Alabama, and that he had advised the sheriff's department how they could locate him in Eufala through his family; that he called officer Daniels in September 1975 and asked if he could do more undercover work or if he was needed in Florida, but officer Daniels advised him not to return to Florida at that time; and that at the time this call was made, he was not aware of and did not discuss the fact that Ashley's trial was pending.

Petitioner's application further alleges that Ashley's counsel submitted this information to the Fifth Circuit Court of Appeals by motion to recall mandate. The state resisted the motion, "claiming, among other things, that this newly discovered evidence had never been presented to either the state trial or appellate court for disposition of the question of a possible Sixth Amendment violation" and "urged that the State was entitled to the first opportunity to consider the effect of the newly discovered evidence," citing Hart v. State, 634 F.2d 987 (5th Cir.1981). By order dated May 20, 1981, the Fifth Circuit denied petitioner's motion to recall mandate, specifically indicating that it was not passing on the merits of the petitioner's claim of newly discovered evidence and that its denial was without prejudice to petitioner's right to reassert his claim in federal court after he had first exhausted his state court remedies.

Thereafter, through the same court-appointed attorney (acting pro bono publico in this Court), petitioner presented these facts in the application now under consideration, contending that they clearly demonstrate that he has been denied a fair trial and the right to compulsory process. ¹ The state opposes the application, contending that, first, these matters were adjudicated on petitioner's previous appeals from the judgment of conviction and the order denying him post-conviction relief under Rule 3.850, thereby barring his right to be reheard on this application. Second, the state contends that the alleged newly discovered evidence does not meet the traditional coram nobis requirements. ²

We disagree with the state's contention that these matters have been previously adjudicated against petitioner. Petitioner's defense in both cases was that the drug sales alleged to have been made by him never took place. Before obtaining...