Green v. State, SC05-2265.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPer Curiam
Citation975 So.2d 1090
PartiesCrosley A. GREEN, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. Crosley Alexander Green, Petitioner, v. James R. McDonough, etc., Respondent.
Docket NumberNo. SC05-2265.,No. SC06-1533.,SC05-2265.,SC06-1533.
Decision Date31 January 2008
975 So.2d 1090
Crosley A. GREEN, Appellant/Cross-Appellee,
STATE of Florida, Appellee/Cross-Appellant.
Crosley Alexander Green, Petitioner,
James R. McDonough, etc., Respondent.
No. SC05-2265.
No. SC06-1533.
Supreme Court of Florida.
January 31, 2008.
Rehearing Denied January 31, 2008.

[975 So.2d 1097]

John W. Jennings, Capital Collateral Regional Counsel, and Mark S. Gruber, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Cross-Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Cross-Appellee/Respondent.


Crosley Green appeals an order of the circuit court granting in part and denying in part his motion to vacate his first-degree murder conviction and sentence of death. He also petitions this Court for a writ of habeas corpus.1 The State cross-appeals, challenging the trial court's order granting Green a new penalty phase. As explained below, we affirm the trial court's order and deny Green's petition.


On direct appeal, we summarized the facts of the crime as follows:

Late in the evening of April 3, 1989, Kim Hallock and [Charles] Flynn, whom she had dated, drove to a park in Flynn's pickup truck. They parked near dunes in a wooded area and smoked marijuana. As they smoked, a sheriff's car drove by and shined its spotlight, but did not stop at the truck. After the sheriff's car passed, a man walked in front of the truck and stopped at the driver's door. He warned Hallock and Flynn to watch out for the police, then walked on.

A few minutes later, Flynn stepped outside the truck to relieve himself. Hallock testified that she soon heard Flynn say nervously: "Hold on. Wait a minute, man. Hold on. Put it down." She retrieved a gun from the truck's glove compartment and put it under some jeans on the seat next to her. She

975 So.2d 1098

testified that when she looked outside the truck, she saw the man she had seen earlier. He was now walking around Flynn and carrying a gun. The man ordered Flynn to the ground, then asked if either of them had any money. Hallock gave him five dollars, but Flynn said he had no money.

The man then tied Flynn's hands behind his back with shoelaces. While tying Flynn's hands, the man's gun went off but did not injure Flynn. The man pulled Flynn off the ground, found a wallet in his pants, and threw it to Hallock, who counted $185.

The man ordered Hallock to start the truck and to move to the center seat. He put Flynn in the passenger seat and started driving. He forced Flynn and Hallock to ride with their heads down and held a gun to Hallock's side. During the ride, Flynn found the gun Hallock had hidden under the jeans. The man stopped the truck at an orange grove and tried to pull Hallock from the truck. Hallock freed herself and ran around the truck, but the man caught her, threw her to the ground, put a gun to her head, and threatened to blow her brains out. Flynn got out of the truck and fired a shot, but missed the man. Hallock jumped into the truck and locked the doors. She testified that she saw the man fire a shot. Flynn yelled for her to escape, and Hallock drove to a friend's house and called the police.

When police arrived at the orange grove, they found Flynn lying facedown with his hands tied behind his back. Authorities found a loaded .22-caliber revolver nearby. Flynn was alive when police arrived, but he stopped breathing several times and died of a single gunshot wound to the chest before paramedics arrived. Hallock later identified Green as the man she saw in the park.

In sentencing Green to death, the trial judge found four aggravating factors: (1) Green was previously convicted of a violent felony; (2) the capital felony was committed while Green was engaged in kidnapping; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, and cruel. The judge found no statutory or nonstatutory mitigating factors. He also sentenced Green to four concurrent twenty-year sentences for the robbery and kidnapping convictions. These terms were to be served consecutively to the death sentence.

Green v. State, 641 So.2d 391, 393-94 (Fla. 1994). We affirmed Green's sentence and conviction on direct appeal.2

975 So.2d 1099

Green subsequently filed a motion for postconviction relief pursuant to rule 3.851, Florida Rules of Criminal Procedure (1996), in which he raised several claims and subclaims.3 The trial court held an evidentiary hearing, and subsequently granted Green a new penalty phase proceeding based on counsel's failure to investigate Green's prior New York robbery case.


Green raises the following six guilt phase issues on appeal: (1) Green's convictions are constitutionally unreliable as established by newly discovered evidence; (2) Green was denied due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when the State suppressed evidence; (3) trial counsel provided constitutionally ineffective assistance; (4) the trial court erred in denying relief with regard to dog tracking evidence; (5) the rules prohibiting Green's lawyers from interviewing jurors are unconstitutional; and (6) the trial court erred in summarily denying Green's claims regarding juror misconduct and counsel's failure to challenge cross-race identification. We address each in turn below. Because we affirm the trial court's order granting a new penalty phase based on the issue raised in the State's cross-appeal regarding Green's prior New York robbery case, we do not reach the other penalty phase issues provisionally asserted in Green's postconviction appeal.

A. Newly Discovered Evidence

Green first argues that his convictions are constitutionally unreliable as established by newly discovered evidence. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II). Newly discovered evidence satisfies the second prong of this test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla. 1996) (Jones I)). In determining whether the evidence compels a new trial, the trial court must "consider all newly discovered evidence which would be admissible," and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones v. State, 591 So.2d 911, 916 (Fla.1991). This determination includes

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in

975 So.2d 1100

the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.

Jones II, 709 So.2d at 521 (citations omitted).

When the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we review the trial court's findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence. Melendez v. State, 718 So.2d 746, 747-48 (Fla.1998); Blanco v. State, 702 So.2d 1250, 1251 (Fla.1997). As with rulings on other postconviction claims, we review the trial court's application of the law to the facts de novo. Cf. Hendrix v. State, 908 So.2d 412, 423 (Fla.2005) (reviewing de novo the trial court's application of the law to the facts in ruling on a postconviction claim that the government withheld material evidence); Gore v. State, 846 So.2d 461, 468 (Fla.2003) (reviewing de novo the application of the law to the facts on a claim of ineffective assistance of trial counsel).

Green argues that his convictions are constitutionally unreliable in light of the subsequent recantations of three of the State's guilt phase witnesses. Green also argues that the trial court erred by considering new evidence of guilt at the evidentiary hearing, including the testimony of Layman Lane and mitochondrial DNA (mDNA) testing on hair fragments found in the victim's truck. We address both of these arguments in turn.

(1) New Evidence Negating Guilt

First, Green argues that his convictions are constitutionally unreliable in light of the fact that Sheila Green, Lonnie Hillery, and Jerome Murray, three of the State guilt phase witnesses, have recanted their trial testimony. The trial court made the following factual findings: First, Jerome Murray testified at Green's trial that, shortly after the murder, Green admitted committing it and said he was going to disappear. At the postconviction evidentiary hearing, the defense introduced three out-of-court statements made by Murray in which he recanted his trial testimony. In these statements, Murray stated that his entire testimony was a lie and that he was under pressure from law enforcement to fabricate. However, at the evidentiary hearing, Murray claimed that he did not remember making these post-trial statements because he was either tired or drunk. When questioned about whether his post-sentencing statements were inconsistent with his trial testimony, Murray exercised his Fifth Amendment privilege against self-incrimination.

Second, Sheila Green is Crosley Green's sister. At Green's trial, Sheila testified that the day after the homicide, Green admitted his involvement in the shooting to her. Sheila had been convicted in federal...

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