Zollman v. State

• Citation: 820 So.2d 1059
• Decision Date: 10 July 2002
• Docket Number: No. 2D02-2265.,2D02-2265.
• Parties: Allen M. ZOLLMAN, a/k/a Allan M. Zollman, DOC # 350073, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

820 So.2d 1059

Allen M. ZOLLMAN, a/k/a Allan M. Zollman, DOC # 350073, Appellant, v. STATE of Florida, Appellee.

No. 2D02-2265.

District Court of Appeal of Florida, Second District.

July 10, 2002.

PARKER, Judge.

On July 30, 1978, a woman was forced into her car by an assailant, driven to a remote area in Lakeland, and raped. Based on one partial fingerprint, one hair, and the victim's in-court identification, a jury determined that Allen Zollman was the woman's assailant. Zollman was sentenced to life plus thirty years in prison.

Twenty-three years later, Zollman filed a motion for postconviction DNA testing pursuant to newly enacted section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853. In this motion, Zollman sought DNA testing of various evidence collected at the time of the crime. The trial court summarily denied Zollman's motion as facially insufficient. We reverse and remand for further proceedings.

The record in this case is limited to the allegations in Zollman's motion. Zollman alleges that the victim testified at trial that she was attacked by a single assailant. This assailant, who had blond hair and gray eyes, drove the victim in her own car to a remote location where he raped her. According to the victim, her assailant ejaculated inside her. After the victim contacted the police on the night of the rape, she was taken to Lakeland Regional Hospital, where evidence was collected in a rape kit. The police also collected the victim's clothing. In addition, the police collected several cigarette butts from the scene of the rape. Zollman alleges that all of these items were turned over to the State Attorney's Office and remain in its possession.¹

Some time after the attack, the victim identified Zollman as her assailant despite the fact that Zollman had brown hair and dark brown eyes rather than blond hair and gray eyes. The victim repeated this identification at Zollman's trial. Also at trial, a fingerprint expert testified that one partial fingerprint lifted from the outside of the victim's car belonged to Zollman. No fingerprints belonging to Zollman were found inside the victim's car despite the victim's testimony that her assailant actually drove her car. The inside of the victim's car contained numerous fingerprints belonging to neither the victim nor Zollman that were never otherwise identified. Another expert testified at trial that one hair "consistent with" Zollman's hair was found inside the victim's car. However, this expert admitted that he could not testify that the hair was Zollman's and that the main consistency between the collected hair and Zollman's hair was that they both came from a Caucasian. Hundreds of other hairs collected from inside the victim's car were never identified. Based on this evidence, the jury convicted Zollman of kidnaping, sexual battery, and robbery.

Zollman now seeks an order requiring DNA testing of the contents of the rape kit, the victim's clothing, and the cigarette butts. Zollman alleges that DNA testing was never performed on any of this evidence because such testing was not available in 1978. Zollman also alleges that he is innocent of these crimes, that he has always maintained his innocence, and that DNA testing will prove that the victim was mistaken in her identification of him as her assailant.

Rule 3.853(b) sets forth the requirements for a facially sufficient motion for postconviction DNA testing. To be facially sufficient, the defendant's motion must include:

(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it was originally obtained;

(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;

(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;

(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;

(5) a statement of any other facts relevant to the motion; and

(6) a certificate that a copy of the motion has been served on the prosecuting authority.

Fla. R.Crim. P. 3.853(b). In this case, the trial court found that because the victim identified Zollman as her assailant and because of the existence of the partial fingerprint, DNA testing of the other evidence, if it still existed, would not exonerate Zollman. Therefore, the trial court found that Zollman's allegations under rule 3.853(b)(4) were insufficient. We disagree.

As we read rule 3.853(b), subsection four requires the defendant to allege sufficient facts to establish two things: first, that identification was a genuinely disputed issue at trial; and second, that the requested DNA testing will either exonerate the defendant or mitigate his sentence. Zollman has made sufficient allegations on both issues.

On the issue of whether identity was genuinely disputed, Zollman alleges that the victim initially described her assailant as having shoulder-length blond hair and gray eyes. Zollman has brown hair and dark brown eyes. In addition, Zollman alleges various irregularities in the line-up and identification procedures. Moreover, Zollman alleges that his sole defense at trial was misidentification.

Despite these allegations, the trial court found that identity was not "genuinely disputed" at trial because the victim had identified Zollman as her assailant. However, this finding ignores the fact that the purpose of section 925.11 and rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a "credible concern that an injustice may have occurred and DNA testing may resolve the issue." In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 636 (Fla.2001) (Anstead, J., concurring). The supreme court has recognized that there is a substantial body of academic work challenging the reliability of eyewitness identifications in criminal cases. See McMullen v. State, 714 So.2d 368, 372 n. 6 (Fla.1998). Thus, the fact that the victim identified Zollman as her assailant at trial does not mean that identity was not genuinely disputed at trial for purposes of postconviction DNA testing.

Because Florida's DNA statute and rule are so new, there is little case law concerning what constitutes a sufficient allegation that identity was a genuinely disputed issue at trial. In the only published Florida case addressing this issue, the facts showed that the defendant had admitted to performing certain sexual acts on a minor. See Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002). Because the defendant had not maintained his innocence but had, in fact, admitted to the crime, identity was not a genuinely disputed issue at trial. Id. Therefore, the motion was properly dismissed.

Cases from other states with a similar postconviction rule, however, make it clear that identity is a "genuinely disputed" issue when the only significant evidence connecting the defendant to the crime is the victim's identification of the defendant. See, e.g., People v. Johnson, No. 85134, ___ Ill.Dec. ___, ___ N.E.2d ___, 2002 WL 592153 (Ill. Apr.18,...