McLin v. State

Citation827 So.2d 948
Decision Date12 September 2002
Docket NumberNo. SC01-829.,SC01-829.
PartiesTracy McLIN, Petitioner, v. STATE of Florida, Respondent.
CourtUnited States State Supreme Court of Florida

827 So.2d 948

Tracy McLIN, Petitioner,
STATE of Florida, Respondent

No. SC01-829.

Supreme Court of Florida.

September 12, 2002.

827 So.2d 950
Charles G. White, Miami, FL, for Petitioner

Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, Miami, FL, for Respondent.


We have for review McLin v. State, 781 So.2d 475 (Fla. 3d DCA 2001), an opinion of the Third District Court of Appeal that expressly and directly conflicts with the decisions of the Fourth District Court of Appeal in Robinson v. State, 736 So.2d 93, 93 (Fla. 4th DCA 1999), the First District Court of Appeal in Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000), and the Second District Court of Appeal in Lewis v. State, 725 So.2d 1186, 1187 (Fla. 2d DCA 1998), on the issue of the appellate standard of review of a trial court's summary denial of a rule 3.850 motion when the movant alleges newly discovered evidence based upon recanted testimony of a witness. The Third District's opinion also misapplies this Court's decisions in Foster v. State, 810 So.2d 910, 914 (Fla.2002), and Jones v. State, 591 So.2d 911, 916 (Fla. 1992), as to the standard of appellate review of a trial court's summary denial of a rule 3.850 motion. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the Third District's decision in this case, and remand for an evidentiary hearing consistent with this opinion.


The Third District Court of Appeal described the underlying facts of the case as follows:

McLin was charged with [the] first-degree murder and armed robbery [of Pierre Mereus]. Several witnesses testified against him at his trial. Oliver Menzies, the state's main witness, testified that on the night in question, he and Jose Saldana were passengers in a car driven by McLin and were on their way to a night club when McLin spotted a man leaving his car and walking towards his residence. According to Menzies, McLin made a sudden u-turn in front of the residence, got out of the car, shot the man and took his wallet. Menzies claimed that he and Saldana stayed in the car the entire time. Saldana did not testify at the trial. Nadine Sylvester, McLin's girlfriend, testified that McLin admitted to being the shooter while they were watching a television news account of the murder. Ms. Sylvester notified police and told them that McLin kept a picture of a 9mm gun (the kind used in the murder) in a bible he had in his living room. That photograph was found and made part of the evidence against McLin at trial.
A police officer testified that approximately two weeks after the murder, the police stopped a car driven by Menzies in which McLin was a passenger. The police noticed a semi-automatic weapon between the seats while reviewing Menzies' driver's license. As the officer attempted to arrest Menzies, he struggled and ran away. McLin was released from the scene. A search of the car revealed a second gun, both of which had been reported stolen. One of the
827 So.2d 951
guns found was the murder weapon used in this case.
Subsequent to receiving the information from Ms. Sylvester, police visited McLin's home with a search warrant. They recovered from the bible, the photo of a gun that resembled the murder weapon.

McLin, 781 So.2d at 475-76. Based on this evidence, McLin was convicted of first-degree murder and armed robbery, and was sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal to the Third District in a per curiam affirmance. See McLin v. State, 685 So.2d 11 (Fla. 3d DCA 1996).

Although the Third District's opinion characterized Sylvester as "McLin's girlfriend," McLin, 781 So.2d at 476, a review of the record reveals that Sylvester testified at trial that she was the mother of Menzies' children, and had been living with Menzies for almost ten years. She also testified that the reason why she became close with McLin is because McLin told her that he would help get Menzies, who was in jail for a different crime, out of jail. Sylvester further testified that she never had a sexual relationship with McLin. Thus, the two main witnesses against McLin were Menzies and Sylvester, Menzies' longtime girlfriend. Additionally, there was no physical evidence to implicate McLin.

McLin filed a rule 3.850 motion for postconviction relief,1 in support of which McLin offered as new evidence the affidavit of Jose Saldana2 dated May 3, 1996. See id. at 476. This affidavit stated:

1. I am currently in the custody of the Florida Department of Corrections following my conviction in an armed robbery case prosecuted in the Circuit Court for the Eleventh Judicial Circuit in Dade County, Florida, under Case No. F94-011979.
2. I was also prosecuted as an accessory after the fact to the murder of Pierre Mereus. I was also prosecuted in this case in the Circuit Court for the Eleventh Judicial Circuit in Dade County, Florida, under Case No. F94-037174. Tracey McLin was prosecuted for the murder of Pierre Mereus in the same circuit under Case No. F94-11236.
3. Oliver Menzies, a/k/a Junior, was also prosecuted as an accessory after the fact to the murder of Pierre Mereus. He was charged in the Circuit Court for the Eleventh Judicial Circuit in Dade County, Florida.
4. I was an eye-witness to the murder of Pierre Mereus. He was shot and killed by Oliver Menzies, a/k/a Junior, on January 25, 1994. Tracy McLin was not present at the killing.
5. At that time, Mr. Menzies had a gun which he used to commit robberies. Mr. Menzies was the second person who participated in the robbery/shooting of the corrections officer in the case for which I was convicted. That incident
827 So.2d 952
took place on January 24, 1994, and the same gun that was used in that shooting was used the following evening by Mr. Menzies to murder Pierre Mereus.
6. On both evenings, we were using a white Acura that Mr. Menzies said was his.
7. Mr. Menzies caused threats to be conveyed to me if I should implicate him in the murder. He conveyed to me that it would be in our interests to falsely accuse Tracy McLin and insist that our role was limited to being innocent bystanders.
8. I am coming forward to expose this scheme at this time because Mr. Menzies broke our agreement, and I can no longer stand idly by and watch an innocent man go to prison for life. As for the agreement, Mr. Menzies was supposed to tell the police what would get both of us out of jail, not just him. I feel that he used and betrayed me.
9. I am making this statement of my own free will and because it is the truth. I have not been offered any inducement, monetary or otherwise, from Tracy McLin or anyone else on his behalf. I know that I have previously given a sworn statement in which I accused Tracy McLin of shooting Pierre Mereus while Mr. Menzies and I watched from our automobile. I understand that I could be prosecuted for having made a false statement to the police, and that I have not been offered any immunity or leniency in any subsequent prosecution by the State.

(Emphasis supplied.)

The State responded to this affidavit by attaching to its response to McLin's rule 3.850 motion a letter allegedly written by McLin to Saldana. The State alleged that this letter was given to the police by Saldana in 1995 before Saldana submitted the affidavit. The State also attached a police report of a latent fingerprint evaluation indicating that McLin's and Saldana's fingerprints were on the letter. However, no evidentiary hearing was held, and neither the letter nor the report was ever admitted as evidence in the trial court.

The several-page letter contained the following statements attributed to McLin: (1) Saldana could "help [McLin] without hurting [Saldana] or anyone else in the case"; (2) Saldana should tell McLin's attorney that Saldana "was going to tell the truth" if called at trial; (3) Saldana could not be charged with perjury because Saldana did not testify at trial, and Menzies was protected by double jeopardy because he was already convicted of a lesser charge; (4) Saldana should tell McLin's attorney that McLin was never in the car, that Menzies was the one who shot the victim, and that while Menzies was in prison, Menzies sent his own girlfriend to Saldana's house to tell Saldana what to say about the murder.

The trial court summarily denied all but one issue raised in McLin's rule 3.850 motion. See McLin, 781 So.2d at 476. The only issue for which the trial court granted an evidentiary hearing was McLin's argument that defense counsel was ineffective for urging McLin to testify to establish as his only defense that he was a rich drug dealer who did not need to rob anyone. The trial court denied relief on this claim after the evidentiary hearing, and on appeal the Third District affirmed all of the trial court's rulings.


The first issue in this case is whether the Third District erred in affirming the trial court's summary denial of McLin's rule 3.850 motion alleging newly discovered evidence and incorporating an affidavit of an eyewitness to the murder stating

827 So.2d 953
that McLin did not commit the crime for which McLin was convicted. The trial court's order summarily denying relief on this claim states
The Defendant's final basis for this motion is that there exists newly discovered evidence that Jose Saldana lied in his deposition about the Defendant's involvement in the murder because Menzies threatened him. In order for evidence to qualify as newly discovered, the "asserted facts must have been unknown by the trial court, by the party, or by counsel by the time of trial, and it must appear that the defendant or his counsel could not have known them by the use of diligence." Hallman v. State, 371 So.2d 482 (Fla.1979). Further, the evidence "must be of such nature that it would probably produce an acquittal on retrial." Jones v. State,

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