STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th... Page 1 of 20 25 Fila, L, Weekly Supp. 321a Online Reference: FLWSUPP 2504BROO | Criminal law — Attempted murder -- Post convietion relief -- Counsel -- Ineffeetiveness -- Newly discovered evidence ~ Defense counsel's failure to adequately challenge ruling that prevented counsel from establishing on cross-examination that vietim, who was the state's only witness, had been charged with armed robbery and faced a possible sentence of life in prison and failure to preserve trial court's error for appellate review amounted to deficient performance — Prejudice —Given -fact-that state's case-rested-entirely-upon strength of this one witness's testimony and the jury's assessment of witness's credibility, any permissible cross-examination that might tend to discredit witness could easily have swayed jury and possibly caused at least some jurors to harbor reasonable doubt — Newly discovered evidence that victim, who was state's only witness, had aceused someone else of the same crime and that victim's girlfriend had falsely accused defendant of a similar crime might have been sufficient to cast doubt on vietim's credibility and prompt an acquittal -- Because there is no evidenee of any type linking defendant to crime other than victim's word, court believes this evidence would probably result in acquittal on retrial -- Appellate court, by its per curiam affirmance without opinion, does not, i as matter of law, preclude finding of prejudice | STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Criminal Division. Case No. F12-23997. June 1, 2017. I Michael Hanzman, Judge. Counsel: Derek Ko, Assistant State Attomey and Nilo Cuervo, Assistant | State Attomey, State Attomey's Office, Miami, for Plaintiff. Law Office of Daniel J. Tibbitt, PA, Miami, for Defendant. ORDER: GRANTING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF; AND DENYING STATE'S AMENDED MOTION FOR REHEARING I, INTRODUCTION Enrique Brooks (“Brooks”) was convicted of attempted second-degree murder based solely upon the testimony of Kemar Green (“Green”), who was shot twice in the back, and identified Brooks as the assailant. Brooks denied shooting Green, and not a shred of independent evidence, testimonial or physical, corroborated either man’s claim. Put simply, nothing other than Green's testimony linked Brooks to this crime. The jury nonetheless - and obviously finding Green credible -- concluded that the State had proved guilt beyond a reasonable doubt. Brooks, a then 24-year-old with no prior criminal history, received a sentence of 40 years in state prison? ‘There is no doubt that our criminal justice system permits a jury to find guilt beyond a reasonable doubt based upon the testimony of a single witness, even when that testimony is contradicted by a defendant, Put another way, the law permits a jury to find guilt beyond a reasonable doubt in a case — like this - of “he said — he said.” But in this not so common scenario the sine qua non to the State's http://www. floridalawweekly.com/flwonline/?page=showfilegfile=. /supfiles/issues/vol25/3.... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Cirouit Court, 11th... Page 2 of 20 i ability to secure a conviction is the credibility of the single witness upon whose testimony its case rests. And the key to a defendant's acquittal is often -- as in this case -- a challenge to that witness’ “credibility” sufficient to place jurors -- or at least some of them -- in “reasonable” doubt. Credibility is an elusive trait, and assessing ones “credibility” is an art, not a science. A trier of fact | must view the witness’ testimony, body language, facial expressions, knowledge of the matter they are | testifying about, inconsistencies in their testimony, level of cooperation, and a myriad of other factors ~ not the least of which is the witness’ possible bias. And in this case Green's credibility was clearly suspect given that he was combative and argumentative, and multiple inconsistencies between his pre- trial and trial testimony were exposed. Even the lead prosecutor candidly admitted to this Court that Green “was tom up. .. very badly” on eross-examination, and that when his testimony was concluded both he -- and his trial pariner -- believed the State was “cooked.” Transcript of Evidentiary Hearing, p. 42. (EH-__”), But again the jury believed Green and convicted. ‘Against this backdrop Brooks, through his “Motion for Postconviction Relief and to Vacate Judgment and Sentence Pursuant to Fla, R. Cr. P. 3.850” (“Motion”), claims that his trial counsel was ineffective in his cross-examination of Green by failing to elicit the undisputed fact that at the time of trial Green was in custody for armed robbery with a firearm - facing a possible life sentence. Brooks also insists that had the jury been made aware of this fact -- and hence the extent of Green's ‘motivation to assist the prosecution -- there is “reasonable probability” that the verdict would have been different. Strickland v. Washington, 466 U.S. 668 (1984)? Aside from his ineffective assistance claim, Brooks also contends that newly discovered evidence has now come to light and that this evidence, had it been available, would have likely led to an acquittal. ‘The first “new evidence” is the testimony of Miguel Whyte (“Whyte”) ~~ a witness who says that Green also accused him of being the shooter. While Brooks acknowledges knowing ~ prior to trial - that Green had identified Whyte (thru his nickname “Brown Man”) as being in the car with Brooks at the time of the shooting, he says that he had no way of knowing that Green -- approximately a year later ~ accused Whyte of the crime, Rather he says he leaned of that “fact” by happenstance when he had a jailhouse conversation with Whyte after trial. ‘As additional “new evidence” tending to cast doubt on Green's eredibility, Brooks argues that at the time of trial he was also facing charges for shooting another man; charges supported only by the false statement of Green's girlfriend -- Palmer -- who told police that: (a) she had met the man at a party and he was romantically interested in her; (b) the man had driven her home from the party and dropped her off at her apartment to get some things; (c) the man was waiting for her in his car at the ‘Walmart across the street; (d) that she then got into an altercation with her supposed boyfriend Brooks; and () that Brooks -- angry that a man had driven his girlfriend home -- got a gun, headed ‘across the street to the Walmart parking lot, and shot him, Palmer later recanted that “story,” telling prosecutors that her decision to falsely accuse Brooks of this crime was inspired by her belief that Brooks had shot her actual boyftiend -- Green. The case against Brooks was nolle prossed after Palmer disclosed that her claim had been fabricated. On March 38 and 30, 2017 the Court conducted an evidentiary hearing on Brooks’ Rule 3 Motion. “The Court heard testimony from Whyte, Brooks and Gawane Grant (‘'Grant"), Brooks’ trial counsel. The Court also received extensive brief’ and entertained oral argument, At the conclusion of that hearing the Court granted Brooks' Motion, articulating some of its reasoning on the record. EH-62-68. ‘The State then filed its “Motion for Rehearing” which it subsequently amended. Brooks then filed his response and the Court heard oral argument on the amended motion. The matter is now ripe for http:/www.floridalawweekly.comy/flwonline/?page=showfile&file=../supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th... Page 3 of 20 Le disposition, and the Court now enters its Order: (a) memorializing its earlier oral ruling granting the ‘Motion; and (b) denying the State's “Amended Motion for Rehearing.” 11. THE TRIAL The State's first (and obviously only material) witness was Green, Describing the issue as “an clephant in the room” -- presumably because Green testified in jail fatigues -- the prosecution first brought out the fact that Green was in custody “for a case of your own.” T-217. No further information regarding the charge was elicited. “Turning to the case at hand, Green néxt testified that prior to being shot he was “standing outside om — the road. . . talking to a girl.” T-217. He then came into contact with Brooks, someone he had known for a “couple of months.” T-218. Green testified that at some point he and Brooks had a falling out over “money” and that Brooks pulled his car up to where he [Green] was “speaking to a gir!” and called him a “batty boy” ~ slang for “faggot.” T-221. Green then responded in kind, provoking Brooks to make a “U-turn and [come] back.” T-221. Green then testified that Brooks “pointed a gun at me” and that he responded by asking “Do you think Tim scared of a gun.” T-221. Brooks then fired a shot and missed, prompting Green to throw a “can of soda at him” and walk off. T-222. Green then felt a “pinch,” tuned around, and saw a “flame coming out of a gun.” T-222. Realizing he had been shot twice he secured a ride to the hospital. T-224. While at Jackson receiving treatment Green told investigating officers that he had been shot by Brooks. T-228. Brooks' counsel commenced his cross-examination by having Green confirm that he was currently incarcerated. T-229. Counsel then asked Green whether he was “arrested for an armed robbery with a gun.” T-229. Rather than allowing this clearly proper inquiry the State lodged a “relevancy” objection which the trial court promptly sustained without argument. T-229. Counsel then requested a sidebar and told the trial court: Judge, I'm allowed to ~ to -- to ask the question what he's charged with, what penalties he's facing, that if he's looking for consideration because of his charges. T-230. The prosecutors disagreed. First, Mr. Ko responded: I don't agree, your Honor. I believe that the only thing he's allowed to ask is if he's currently being produced by my office and whether or not he's been promised any consideration, T-230. Mr. Ko's co-counsel, Mr. Funck, then piled on, arguing: And it's extremely prejudicial in the same sense that we don't get into what it defendant's charges are and necessarily -- or a witness -- a normal witness who takes the stand, has opened cases -- we don't get into what they are charged. 1-230. Brooks’ trial counsel offered no response to those arguments -- prompting the trial court to comment that “the jury already heard that he's charged with armed robbery” — a point that had been mentioned in counsel's question but not acknowledged by the witness. This “fact” was therefore not in evidence. T-230. Nor was counsel permitted to elicit the “fact” that Green was exposed to a sentence of life in http:/Avww.floridalawweckly.com/flwonline/?page=showfile&file=../supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th... Page 4 of 20 prison, even though the trial court surmised that the jury could “probably appreciate the fact that it's a strong penalty for armed robbery.” T-231. The trial court then told counsel that he could ask Green whether he had been “promised any reduced sentence or recommendation from the State for leniency” and whether he [Green] was “looking for leniency.” T-231. Counsel acquiesced and asked Green if he ‘was “looking for leniency from the State Attorney's Office for your charges by testifying here today.” 7-231, 32. Green predictably answered “no.” I-232. Proceeding with cross-examination, Brooks’ counsel elicited the fact that Green had testified -- in deposition ~ to loaning Brooks $300.00, T-235. He did so because Brooks was “in trouble,” T-236. Green then testified he had asked Brooks for the money back, though in deposition he testified that _ some unidentified girl had asked Brooks to return the money and that he had not. T-240, 241. Green also testified that a number of his friends were present when he “got shot,” and that Brooks had “pointed the gun at everybody out there.” T-243, 252-254, “He's pointing it at everybody. There's about four people out there. If you pull a gun on a group, and you point a gun at them, what you think they going to think?” T-243, None of these individuals were called to testify. Green also testified that the person who shot him was driving a “blue-ish ~- a purple/blue-ish Hyundai,” [something he told the police], but admitted testifying in deposition that the time of the shooting Brooks was driving a “white car.” 1-244, Brooks’ counsel then asked Green whether he believed that the person who shot him “weighed between 280 and 300 pounds.” T-256. When Green answered “not correct,” and claimed that the shooter weighed “about 180 to 215” [Brooks' weight], counsel pointed out that in deposition Green testified that he was “looking at him” {the shooter] and “he’s about 280, 300 pounds” -- something Green denied saying. Brooks' lawyer also brought out a number of inconsistencies in Green's testimony regarding where he went immediately after the shooting and how he was eventually ‘transported to the hospital, ‘The State next called Sgt. Timothy K Adams of the Miami Gardens Police Department. T-262. He ‘was called to the crime scene on the day of the shooting and was “getting partial information” because witnesses “were wanting to be anonymous.” T-265. Sgt. Adams testified that he was unable to locate the actual crime scene, T-266, and that he [and his team] could not find any forensic evidence. T-267, 268. The jury next heard from Cynthia Alexander, a crime scene investigator for the Miami Gardens Police Department. T-269. Officer Alexander went to see Green at the Ryder Trauma Center on the day of | the shooting. T-270. She initially photographed Green, “along with his injuries.” T-271. She also collected clothing from Green, T-277. The state then called Detective Michael Dillon who ~ like Sgt Adams -- confirmed that the Miami Gardens Police Department was unable to locate the crime scene. ‘T-286. He had also met with Green and his family at the hospital. T-286. Although Green supposedly knew Brooks, Detective Dillon prepared a “photographic lineup” based upon information received from Green's mother [who was not at the scene] and other unidentified investigators. T-286, 287. ‘When showed this “lineup” Green identified Brooks as the shooter. T-291. On cross-examination Detective Dillon first acknowledge that the “suspect's vehicle” he “developed” was a “purple-ish/blue Hyundai (sic)” — not a white Honda. T-294-95, Counsel also elicited other inconsistencies between Green's testimony and what he told Detective Dillon on a number of collateral issues, such as where Green first went after being shot, who actually took him to the hospital, and whether any passenger was in the vehicle with Brooks atthe time of the shooting. T-294-297., http:/Avww floridalawweekly.com/flwonline/?page=showfile&file=. /supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th... Page 5 of 20 At this point the State rested. T-299. The defense then called Brooks as its first and only witness, Brooks testified unequivocally that he had never borrowed money from Green and did not shoot him. T-307. He also testified that he did not “have a gun” in January 2012; that he has never driven a “purple/blueish Hyundai,” and that he was not “present” when Green “got shot.” T-307. On cross- examination Brooks also testified that he never had “any argument” or “any beef” with Green that “would cause him [Green] to be angry at you? Nothing that would cause him to point a finger at you for something?” T-308. The defense then rested. T-308, 309. ‘The trial court instructed the jury on the elements of attempted second-degree murder, a crime that ‘includes the lesser crimes of aggravated battery and battery, all of which are unlawful.” T-326. As _ ‘mentioned earlier, no instruction on attempted manslaughter was requested or given. The trial court also instructed the jury that if it found beyond a reasonable doubt that Brooks “displayed a firearm” during the commission of the crime it should “find the defendant guilty of attempted second-degree murder [or any lesser offense] with a firearm.” T-329-333. The parties then proceeded to closing argument. The State first pointed out the obvious: that a crime ‘was clearly committed as Green was undeniably shot twice in the back. The prosecutor then argued that Green would have no reason to implicate Brooks unless he was in fact the shooter: Is it reasonable to believe that Mr. Greene took that opportunity of someone shooting him in the back and be like, “Ah -- ha. Yes. Now I can do it. Now I can get Mr. Brooks. Now he's going down. Someone shot me in the back, and I'm going to put the blame on him.” ‘T-344, The State also drove home the point that since the day he went to the hospital Green consistently said it was “that man. That man” that shot him -- Brooks, T-349, Defense counsel began his closing by characterizing Brooks as “an innocent person charged with a crime he didn't commit.” T-350. Counsel then argued that there was reasonable doubt “all over this case.” T-351. First, he pointed out that it was questionable whether Green was in fact shot at the location claimed, as no blood was found there, and no bullets (or casings) were “found at all” despite Green's testimony that the first warning shot “hit the gate.” T-351. In fact police could not find any physical evidence at the location Green was supposedly shot, T-352. Counsel next reminded the jury that Green told the police that after being shot he walked across the street to a Walmart approximate 200 yards away. T-352. Yet not “one speck of blood” was found between the location of the shooting and the Walmart, Counsel also pointed out that none of the individuals supposedly present when the shooting occurred were even “mentioned as to the police” or called to testify. T-353. Counsel next proceeded to emphasize other inconsistencies in Green's version of events, and argue why his “version” made “absolutely no sense at all.” T-354. For example, Green testified that at the time of the shooting one of his friends who was present ~ Pierre -- was a “licensed firearm owner” vwho -- in response to the shooting ~- was “going for his gun” when Green told him to stand down (“No Pierre: None of that. None of that.”) T-353-54. That testimony, in counsel's view, did“not make any sense.” T-354, Counsel also attacked Green's testimony that Brooks -- someone he had no relationship with -- would “try to borrow money from him.” T-354. He also hammered on inconsistencies in Green's testimony regarding the car Brooks drove, how he got to the hospital, and the estimated weight of his assailant. T-356, 357. http:/Avww.floridalawweekly.com/flwonline/?page=showfileéefile=../supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 11th... Page 6 of 20 What defense counsel did not argue ~- and could not argue -- because the facts were not in evidence -- was that Green was in custody for armed robbery and facing the possibility of life in prison, thereby providing him with an incentive to assist the prosecution. Counsel could not make this argument because Green had never been required to testify either that: (a) he was in custody for the erime of armed robbery, or (b) that he faced the prospect of life in prison, Neither of these facts were in evidence and, as a result, the jury was not permitted to factor them into the equation when considering the credibility of the only evidence linking Brooks to the crime -- Green's testimony. The jury retumed a verdict of guilty on all charges. T-373, 374. It was then polled and discharged. _ The trial court subsequently adjudicated Brooks guilty of attempted second-degree murder while possessing and discharging a firearm and causing great bodily harm. T-379. The court took Brooks into custody, ordered a PSI, and set a future sentencing date. II. MOTION FOR NEW TRIAL AND SENTENCING. Prior to sentencing, and pursuant to Fla, R. Cr. P. 3,600(3), Brooks filed an “Amended Motion for New Trial” based upon newly discovered evidence. The motion alleged that “just by chance” Brooks “happened to be in the same jail cell as a prisoner by the name of Miguel Whyte.” Transcript of August 26, 2013 sentencing hearing, p. 5 (“ST-__”). Brooks told Whyte that he had been convicted of shooting Green, prompting Whyte to disclose that during an altercation at a convenience store Green had accused him [Whyte] of committing the same crime, ST-5, 6. The motion for new trial also ‘was based on the claim that counsel had been improperly precluded from eliciting testimony concerning the charge that Green was incarcerated for and the possible penalty he faced if convicted. st-72 The State responded by first arguing that the motion for new trial based on newly discovered evidence was untimely and that the trial court lacked jurisdiction to consider it, ST-9-11. In the State's view the issue would present a “3.850 issue, at best.” ST-11. As for the claim that Brooks' trial counsel had been hamstrung during cross-examination, the State maintained that Green “was amply cross- ‘examined and examined” on “those issues” [his pending charges and exposure], arguing that: In fact, Mr. Green ~ it was very clear to the jury, as they were paying attention -- they saw him come out in an orange jumper and a white T-shirt. They saw him have his handeuffé released from him in front of them, He was brought out from the corrections | holding area. i I don't think there's any question -- and we covered that very extensively, that — the fact | is Mr. Green was facing serious consequences of his own, but he also stated that he did | not expect anything in return for his testimony. It was well-covered territory. ST-12. The trial court denied the motion for new trial and proceeded to sentencing. ST-13. After hearing from family members the trial court permitted the State to be heard. At that point the State argued —~ ‘among other things -- that Brooks was at the time facing “another serious charge,” and that he had demonstrated, by having such serious charges repeatedly, that he constitutes a danger to the community, your honor.” ST-38. The “other” charge Was the attempted murder that Green's girlfriend ~ Palmer -- had falsely accused Brooks of committing, The State urged the trial court to sentence Brooks to life or “at least 50 years with a 25 year min man.” ST-39, The trial court sentenced Brooks “to 40 years in state prison, with a 25 year minimum —- mandatory.” ST-41, http://www. floridalawweekly.com/flwonline/2page=showfile&file=./supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant, Circuit Court, 11th... Page 7 of 20 IV. THE DIRECT APPEAL ‘The trial court appointed the Office of the Public Defender to represent Brooks on direct appeal. Brooks raised two appellate issues. He first claimed that the trial court erred in preventing trial counsel from “fully cross-examining” Green regarding his pending charges and possible life sentence if convicted. Initial Brief of Appellant, Point I. As the second point on appeal, Brooks advanced the claim that the trial court should have granted a mistrial “after the State asked a question the answer to / which was fairly susceptible as a comment on Brooks’ post arrest silence.” Appellant's Initial Brief, Point IL. “Through ifs “Answer trial court's error in limiting cross-examination] had not been “properly preserved for appellate review.” Answer Brief, p. 12. The State correctly pointed out that “in order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if itis to be considered preserved.” Answer Brief p. 12, citing Lacey v. State, 831 So. 2d 1267, 1268 (Fla. 4th DCA 2002) (27 Fla. L. Weekly D177a]. In the State's view Brooks’ trial counsel did not properly present the court with his objection to its ruling and, as a result, the issue “was not preserved for appellate review.” Id. The State also argued that any error on the part of the trial court was not fimdamental. Id, citing Kilgore v. State, 688 So, 2d 895, 898 (Fla, 1996) [21 Fla. L. Weekly $345a] (@ fundamental error is one that “‘reach{es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error”); Walls v. State, 926 So, 2d 1156 Fla, 2006) [31 Fla. L. Weekly $101a). After insisting that the trial counsel had failed to preserve any error in limiting cross-examination, the State next made a feeble attempt to argue that the “evidence” at issue (Green's pending charge and his, potential sentence) was not “relevant”; that any relevancy it may have was “subject to Florida Statute 90.403”; and that “a defendant may not delve into the facts of a pending charge” -- something Brooks' counse! had not tried to do. Answer Brief, p. 13-18. Counsel had obviously not tried to “delve” into the facts of the pending charges because he was not permitted to establish what the “charges” even were, of the possible penalty if Green were convicted. Compare, Dufour v, State, 495 So. 2d 154, 159 (Fla. 1986) (trial court did not abuse its discretion by not allowing defense to delve into facts of a pending case co-defendant witnesses’ case). Brooks' conviction was affirmed per curiam without opinion. Brooks v. State, 155 So. 3d 357 (Fla. 3d DCA 2014), V. THE PENDING RULE 3 MOTION As mentioned earlier, Brooks makes four claims in support of post-conviction relief, only two of which warrant discussion: (1) the claim that trial counsel failed to adequately cross-examine Green regarding his pending armed robbery charges and possible sentence, and failed to preserve the trial court's error in circumscribing that examination; and (2) the claim that “there is new evidence, which ‘has arisen since his trial and which exculpates him and which, were a jury to heat itin a new trial, would be reasonably likely to produce a different result, an acquittal.” Motion, p. 2. In support of the I latter claim Brooks again relies on the testimony of Whyte who says that prior to trial Green confronted him and accused him of committing the same crime (.e., shooting him in the back), and evidence -- also not available at the time of trial -- establishing that Green's paramour, Palmer, falsely accused Brooks of committing another attempted murder; an accusation she recanted after Brooks’ trial, http://www floridalawweekly.com/flwonline/?page=showfile&file=. /supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 1th... Page 8 of 20 Cc Iniits “Response to Motion for Post-conviction Relief” the State first claims that Brooks cannot show that his counsel “should have further pursued the argument” and pressed forward in an attempt to clicit evidence regarding the pending charges against Green or his possible sentence. Response, p. 5. ‘The State then insists that even if counsel were deficient in this respect, Brooks cannot establish a reasonable probability that the trial outcome would have been different because: (a) the claim that the trial court would have reconsidered its ruling is “mere speculation”; and (b) “substantial evidence of the potential bias of the witness was placed before the jury.” Response, p. 5. Turning to the claim of newly discovered evidence, the State initially conceded that “the evidence in i _question meets the qualification for being newly discovered,” acknowledging “that neither Mr. Brooks or his counsel had knowledge of this information or could have known of it by the use of due diligence.” Response, P. 10. See Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994) (to be considered newly discovered, evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not, have known them by the use of diligence”), The State argued, however, that the statement by Green at i the convenience store was “so vague that it cannot be said that it would probably produce an acquittal i on retrial given the fact that it would carry so little weight,” and told the Court that Green's statement accusing Whyte of shooting him was not necessarily inconsistent with his trial testimony because | “Mr. Green had been shot on two different occasions.” Response, p. 11.4 | ‘After Brooks filed his “Reply” brief the State submitted a “Sur-Reply.” As for the claim of ineffective ccross-examination the State added to its repertoire the contention that trial counsel could not be faulted for “strategically limiting his inquiry into any promises from the State or recommendation for leniency to what was necessary to firmly establish Mr. Green's potential for bias.” Sur-Reply, p. 7. Put another way, the State says that “the defendant’ trial counsel should not be faulted for declining to beat a dead horse in front of the jury.” Sur-Reply, p. 7. Of course it is undisputed that counsel made no such “strategic” decision (even assuming that such a decision could ever competently be made in this type of ease) because he tried to explore this territory only to be shot down based upon the State's repeated “objection.” The State also reargues its claim that Brooks was not prejudiced by any ineffective assistance because the jury was aware that Green was “in jail” and being prosecuted by the “same office for which he was testifying as a witness.” Sur-Reply, p. 8. Turning to the claim of “newly discovered evidence” the State -- in its Sur-Reply -- then does an about face advising the Court that: Asa threshold matter, the state has previously conceded that the evidence in question qualifies as “newly discovered” insofar as it could not have been known to the Defendant or his counsel by the use of due diligence. However, upon further review of the record in regards to the Defendant's claims in his Reply to the State's Response, the State has determined that the previous concession was in error, Sur-Reply, p. 9. According to the State its initial concession was “in error” because Green -- in deposition -- testified that another man was in the car when Brooks shot him. The other man identified by Green as “Brown Man” -- was someone both Green and Brooks knew to be Whyte. Sur- Reply, p. 9. Thus prior to trial Brooks -- and his counsel -- knew that Whyte had been identified as a possible witness, The State thus argues that Brooks -- or his counsel -- could have secured Whyte's ‘testimony. Finally, as for Palmer's false allegation that Brooks attempted to kill another man, the State says this, is “irrelevant to Mr, Green's testimony in the instant case and actually weakens the Defendant's http://www floridalawweekly.com/flwonline/?page=showfile&file=. /supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 1 Ith... Page 9 of 20 CL claims.” Sur-Reply, p. 11. According to the State, when Palmer confessed to falsely accusing Brooks of the other shooting, she said she had done so because her boyttiend, Green, had told her that Brooks had shot him. Sur-Reply, pp. 11-12. This ~ in the State's view -- further bolsters Green's testimony which is why -- from its vantage points -- the State says this “evidence” actually weakens Brooks’ case. VI. THE EVIDENTIARY HEARING At the evidentiary hearing on Brooks’ Rule 3 motion this Court first heard from Whyte who testified | consistent with his prior affidavit, He claimed that while at a Kwik Stop near 183 Street, Green started yelling that I shot” him, then lifted up his shirt fo show his wounds. EH-30. When Whyte denied i shooting Green the two men got into a physical altercation, EH-30-32. Months later Whyte was in | custody for an unrelated case. EH-34. At some point he ran into — and struck up a conversation with ~- Brooks, EH-37. During that discussion both men realized Green had accused each of them of shooting him in the back. EH-37. Whyte was released shortly thereafter [his charges dropped] and then signed his affidavit at counsel's request. EH-40. He also went “back to the convenience store” and spoke to the clerk on duty who told him she remembered the altercation but that surveillance video had been “thrown away.” EH-41-42, ‘The next witness called was Brooks' trial counsel, Gawane Grant. Grant has been practicing criminal law for about “20-plus years” and has tried “well over 100” cases, EH-82. Grant knew -- prior to trial -- that Green had testified that a person -- known as “Brown Man’ -- was in the car with Brooks at the time of the shooting and was told by Brooks that he [Brooks] “didn't know [Brown Man's] name or address.” BH-91-95. Grant made no further investigation to locate this witness, though he acknowledged that the individual could be “important” to the defense. EH-94, 121. Grant next testified that the trial court did not “allow me to” cross-examine Green on what he was in custody for and his possible penalty if convicted. EH-109, He then acknowledged failing to make ‘what would have been “appropriate” argument after the State's objection was sustained, and told the Court that it would have been “a beauty” for the defense had he been allowed to make Green acknowledge that he was charged with a life felony. EH-110-111. He also acknowledged that he did not have any case law to present to the trial court. EH-111. Nor did he secure any precedent and ask for “reconsideration.” EH-112. In sum, Grant testified that he was “very constrained by what the judge ordered.” EH-113, He also confirmed that at the time of trial he had no idea that Green had | accused “Miguel Whyte of having done the shooting,” EH-127, and that this was exculpatory evidence he would “certainly. . . want to get in front of a jury.” EH-128, VII. CONTROLLING LAW A. Ineffective Assistance of Counsel As our Supreme Court reminds us on what seems to be a weekly basis, the law governing claims of i ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), is well | settled: First, the claimant must identify particular acts or omissions of the lawyer that are shown. | to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be | demonstrated to have so affected the fairness and reliability of the proceeding that | confidence in the outcome is undermined. http:/Awww.floridalawweekly.com/flwonline/?page=showfile&file=../supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 1... Page 10 of 20 A Simmons v. State, 105 So. 3 475 (Fla. 2012) [37 Fla. L. Weekly $645a]. See also, Walker v. State, 88 So. 3d 128 (Fla, 2012) [37 Fla. L. Weekly S291a]; Bolin v, State, 41 So. 3d 151 (Fla. 2010) [35 Fla. L. Weekly S386a]; Wright v, State, 213 So. 34 881 (Fla. 2017) [42 Fla. L. Weekly $587a]; Abdool v. State, 42 Fla. L. Weekly $437a Fla. Apr. 6, 2017); Cavlor v. State, 42 Fla. L. Weekly $608a, (Fla. S. Ct. May 18, 2017). In applying the first Strickland prong, “[jJudicial scrutiny of counsel's performance must be highly deferential and there isa strong presumption that trial counsel's performance was not ineffective.” Id., citing Strickland, 466 U.S. at 689. Rather, “[a] fair assessment of attomey performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances _ of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Ia Furthermore, “(s}trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 1768 So.24 1037, 1048 (Fla.2000) (25 Fla. L. Weekly $529a} AAs for the second Strickland prong, a defendant need not show “that counsel's deficient conduct more likely than not altered the outcome” of the proceeding, but rather “a probability sufficient to ‘undermine confidence in [that] outcome.” Porter v. MeCollum, 558 U.S. 30 (2009) [22 Fla. L. Weekly Fed. $9a] (quoting Sirickland, 466 U.S. at 693-94). In other words, the defendant must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hoskins v. State, 75 So. 34 250, 254 (Fla. 2011) [36 Fla. L. Weekly $634a] (quoting Strickland, 466 U.S. at 694). See also, Valle v, State, 705 So. 2d 1331 (Fla, 1997) [22 Fla. L. Weekly S751a]. This “prejudice” prong must be evaluated in the context of the entire “record of the case.” State v. Anderson, 42 Fla, L, Weekly D746b (Fla, 5th DCA Mar. 31, 2017). B. Newly Discovered Evidence To succeed on a Rule 3 claim based on “newly discovered evidence” a defendant must clear two hurdles: First, the asserted facts “must have been unknown by the trial court, by the party, or by counsel at the time of tril, and it must appear that defendant or his counsel could not have known them by the use of diligence.” Hallman, 371 So.2d 482 (Fla. 1979), abrogated on other grounds, Jones v. State, 591 So. 24 911 (Fla, 1991). Second, “the newly discovered evidence must be of such nature that it would probably produce an \ acquittal on retrial, | Torres-Arboleda v. Dugger, 636 So. 2d 1321, 324-25 (Fla, 1994) citing Jones, 391 So, at 915, Furthermore, if the court finds that this evidence “could have been found with the exercise of due i diligence, it must then determine whether the failure of [trial counsel] to discover the evidence was an | omission that fell below a standard of reasonableness under prevailing professional norms.” Dwyer v. State, 743 So. 24:46, 49 (Fla. Sth DCA 1999) [24 Fla. L.. Weekly D1946a] (quoting Jancar-v. State, 711 So. 2d 143, 145 (Fla. 24 DCA 1998) [23 Fla, L. Weekly D1159a). “If so, the [trial] court must \ also determine whether the oversight probably affected the outcome of the proceedings.” Id. i VIUL. ANALYSIS A. Ineffective Assistance http:/Avww_floridalawweekly.com/flwonline/?page=showfile&efile=./supfiles/issues/vol25/3..._ 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 1... Page 11 of 20 i, Deficient Performance ‘As an initial matter, the trial court clearly erred in preventing defense counsel from establishing, as a matter of evidence, that: (a) Green had been charged with armed robbery; and (b) he faced a possible sentence of life in prison. The line of authority establishing that this type of cross-examination generally must be permitted is long and unbroken. See, Davis v. Alaska, 415 U.S. 308 (1974); Williams v. State, 912 So. 24 66 (Fla, 4th DCA 2005) [30 Fla. L. Weekly D2304a]; Bennett v. State, 713 So. 2d 1088 Fla. 2d DCA 1998) (23 Fla, L. Weekly D1680d]; Breedlove v. State, 580 So. 2d 605 (Fla. 1991); Sloan v. State, 427 So. 2d 808 (Fla. 4th DCA 1983); Patterson v. State, 501 So. 2d 691 _(Fla. 24 DCA 1987). A defendant has a right to bring to the jury's attention pending charges against a prosecution witness, and the possible sentence upon convict so that the jury will be fully apprised as to the witness’ possible motive or self-interest with respect to the testimony he gives. Testimony given in a criminal case by a witness who himself is under actual or threatened criminal investigation or charges may well be biased in favor of the State without the knowledge of such bias by the police or prosecutor because the witness may seek to curry their favor with respect to his own legal The motion for new trial also argued that by asking one of the officers if he had been able to obtain a statement from Brooks the State impermissibly commented on defendant's right to remain silent ST-p. 8 “While Green testified in deposition that he had been shot twice, the first incident involved “two dudes” who “Just jumped out at me” in December 2010. Deposition dated April 1, 2013 p. 12. Whyte, however, testified that Green specifically accused him of the exact same shooting attributed to Brooks ~- a shooting that occurred in January 2012. The State is reminded of its obligation of candor towards this tribunal. STo be clear, the Court is not finding ~ or even suggesting -- that either prosecutor intentionally, or in a conscious attempt to secure an unfair advantage, led the trial court into error. To the contrary, they are both competent, conscientious and dedicated officers of the court who strive to do “justice” day in and day out. But in this case they unintentionally led the trial court into error; an error Brooks’ counsel http://www floridalawweekly.com/fwonline/?page=showfile&file=../supfiles/issues/vol25/3... 3/1/2018STATE OF FLORIDA, Plaintiff, v. ENRIQUE BROOKS, Defendant. Circuit Court, 1... Page 20 of 20 ‘was responsible to correct, and an error this Court has no doubt would have been corrected had counsel been prepared to provide the trial court with controlling authority. “It should be noted that both Brooks and Whyte deny being at the “scene” at all. eee http://www floridalawweekly.com/flwonline/?page=showfile&file=. /supfiles/issues/vol25/3... 3/1/2018