Scott v. State, s. 84686

• Decision Date: 16 March 1995
• Docket Number: 84687,Nos. 84686,s. 84686
• Citation: 657 So.2d 1129
• Parties: 20 Fla. L. Weekly S133, 20 Fla. L. Weekly S426 Paul William SCOTT, Appellant, v. STATE of Florida, Appellee. Paul William SCOTT, Petitioner, v. Harry K. SINGLETARY, Respondent.
• Court: Florida Supreme Court

Page 1129

657 So.2d 1129

20 Fla. L. Weekly S133, 20 Fla. L. Weekly S426

Paul William SCOTT, Appellant, v. STATE of Florida, Appellee.

Paul William SCOTT, Petitioner, v. Harry K. SINGLETARY, Respondent.

Nos. 84686, 84687.

Supreme Court of Florida.

March 16, 1995.

Rehearing Denied July 20, 1995.

Martin J. McClain, Chief Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for appellant/petitioner.

Robert A. Butterworth, Atty. Gen. and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Paul Scott appeals the trial court's denial of his third rule 3.850 motion to vacate his conviction of first-degree murder and his sentence of death. ¹ Scott also petitions for a writ of habeas corpus ² and requests a stay of execution. We have jurisdiction. Art. V, Sec. 3(b)(1), (9), Fla. Const.

This case has an extensive procedural history covering fifteen years of proceedings in both the state and federal courts. Scott was sentenced to death for the 1978 first-degree murder of James Alessi. This Court affirmed both the conviction and sentence on direct appeal. Scott v. State, 411 So.2d 866 (Fla.1982). In his petition for rehearing of that decision, Scott expressly requested that we address his culpability as compared to the culpability of his accomplice, Richard Kondian, who, as a result of a guilty plea, had received a sentence of forty-five years imprisonment. We denied that petition. Scott v. State, 419 So.2d 1058 (Fla.1982). Next, Scott petitioned this Court for a writ of habeas corpus and a writ of error coram nobis, which was denied. Scott v. Wainwright, 433 So.2d 974 (Fla.1983). Scott's first rule 3.850 motion was dismissed without prejudice for the failure to file a motion that included a proper oath. Scott v. State, 464 So.2d 1171 (Fla.1985). Scott corrected the problem with the oath and filed a verified 3.850 motion. An evidentiary hearing was held in the trial court and relief was denied. This Court affirmed. Scott v. State, 513 So.2d 653 (Fla.1987).

A death warrant was signed for Scott on October 19, 1990, and this Court granted a stay to allow new postconviction counsel the opportunity to file a second 3.850 motion. The trial court denied this second motion without an evidentiary hearing, and this Court affirmed. Scott v. Dugger, 634 So.2d 1062 (Fla.1993). We also denied relief in his second petition for writ of habeas corpus. Scott v. Dugger, 634 So.2d 1062 (Fla.1993).

Scott has sought relief in the federal courts, including federal habeas corpus relief in the United States District Court. This petition was denied in Scott v. Dugger, 686 F.Supp. 1488 (S.D.Fla.1988), aff'd, 891 F.2d 800 (11th Cir.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990). The Eleventh Circuit also denied Scott's recent request to recall its mandate. Scott v. Singletary, 38 F.3d 1547 (11th Cir.1994).

When the governor signed Scott's current death warrant on September 30, 1994, Scott filed his third motion for rule 3.850 relief. The trial court denied relief without an evidentiary hearing. Because the present motion is successive and was filed after the expiration of the time limits set forth in rule 3.850, Scott based his claims on newly discovered evidence that he asserts demonstrates reversible error. Principally, he contends that the State violated the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing: (1) a statement by Dexter Coffin, a cellmate of Scott's codefendant Richard Kondian, in which Coffin states he told a police officer that Kondian admitted killing the victim; (2) a statement by Robert Dixon, in which Dixon states he told a police officer that Kondian was angry with Scott for running out on him at the murder scene; and (3) a medical examiner's photograph that suggested that Kondian had struck the fatal blow by hitting Alessi on the head with a champagne bottle. Scott claims that, in light of this newly discovered evidence, we should revisit our ruling in Scott v. Dugger, 634 So.2d 1062 (Fla.1993), and grant a new sentencing hearing.

Scott argued at trial that he ran out the back door before the victim was killed and that it was his co-defendant, Kondian, who was truly the killer. Scott now claims that the State, prior to trial, had in its possession information from two witnesses that supported this contention, but that the State failed to disclose this to the defense. In his present motion for post-conviction relief, Scott presented to the trial court affidavits from these two witnesses.

In the first affidavit, Dexter Coffin swears to the following:

3. Richard Kondian and I were both placed in the Captain's Cell. [Police informant] Captain Donnelly pulled me aside soon after I arrived at the jail and told me he wanted my help getting information from Richard Kondian. From that point on, we had daily meetings in which I briefed the state on anything that Richard Kondian revealed to me about the murder of James Alessi.

4. It turned out that Richard Kondian did end up confiding in me and asking for my advice quite a bit. Actually, many of the inmates asked for my advice because they felt that I understood the law. In seeking advice, Rick would tell me a lot about what happened on the night that the victim was killed. Rick clearly stated to me many times that he killed James Alessi or "that fag," as Rick would call him. Rick specifically told me that he "beat the shit out of him and killed him" by hitting him over the head. He was talking about how he killed James Alessi and he never mentioned anything about Paul Scott helping him.

5. In my daily meetings with Captain Donnelly and the representatives of the state, I would divulge to them whatever I had learned from Rick. I repeatedly informed them that Rick said that he was responsible for killing James Alessi. I told them what Rick said about beating the shit out of and killing the victim by beating him over the head.

In the second affidavit, Robert Dixon makes the following claims:

2. In 1978, I was living in Ft. Lauderdale, Florida. I was living with two people in a hotel on Birch Street. Their names were Rick and Sunshine. Rick was about 5' 8"' with long dark wavy hair. I lived with Rick and Sunshine for about two weeks.

3. Rick was a hustler. At that time Rick was hanging out with a known homosexual. The homosexual man owned a flower shop. Rick was spending time with this man for at least a week. I remember one time when this homosexual man dropped Rick off at the hotel where we were staying.

4. One night, I was at a pool hall with a man named Allan Brasher. Allan told me that he was supposed to go back to the hotel, meet Rick, and go have dinner with the homosexual man. Allan did not want to go with Rick so he stayed at the pool hall with me. We were playing pool at a place called The Elbow Room.

5. Later that night, I went back to the hotel. Paul's old lady told me that Paul left with Rick. I met Paul Scott for the first time two to three days prior to that night.

6. I stayed in the room with Paul's old lady. Later that night Rick and Paul came in. When they came in, I knew something had happened. Rick was in an uproar. He was pacing around, very demanding and yelling at Paul Scott for running out on him. Rick also called Paul a punk. Rick was also saying things like, "Let's go. Pack your shit. We got to get the fuck out of here."

....

9. While we were traveling, I became aware that the police were after Paul. I asked him what happened and he said, "I didn't do it." At that point, I didn't know what happened. But I did know that Paul went along with Rick only because Allan did not want to go. Rick was calling the shots.

....

11. The police threatened to charge me with accessory to murder unless I told them where was the last place I was with Paul. I told them that we split up in Sacramento. I also remember the police showing me pictures of the victim. I told the police about what happened in the motel room and the things Rick said.

In addition to these two statements, Scott has made an unrebutted showing that the state failed to disclose a crime scene photograph supportive of his claim that the murder weapon was a wine bottle previously linked to Kondian. Scott has attached a statement from the medical examiner who opines that the photograph, which was not introduced at trial, supports the view that the wine bottle was the murder weapon.

Recently, in Garcia v. State, 622 So.2d 1325 (Fla.1993), this court was faced with a similar claim that the state had withheld evidence of the participation of a co-defendant. In Garcia, we observed:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), the United States Supreme Court ruled that "the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). It is irrelevant whether the prosecutor or police is responsible for the nondisclosure; it is enough that the State itself fails to disclose. See, e.g., Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir.1984).

In the present case, the Smith statement was immaterial as to guilt, since there is no reasonable probability that the verdict would have been different had it been disclosed in light of the extensive evidence showing Garcia's complicity in the crime. However, the statement was clearly material as to penalty, for it would have eviscerated the State's theme that Joe Perez did not...