IN THE SUPREME COURT OF FLORIDA

CASE NO. SC12-79

DAVID SYLVESTER FRANCES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, STATE OF FLORIDA

REPLY BRIEF OF THE APPELLANT

DAVID DIXON HENDRYFLORIDA BAR NO. 0160016ASSISTANT CCRCCAPITAL COLLATERAL REGIONALCOUNSEL-MIDDLE REGION

3801 Corporex Park Drive, Suite 210Tampa, Florida 33619813-740-3544

COUNSEL FOR APPELLANT

TABLE OF CONTENTSP3JLe

TABLE OF CONTENTS ...........................................................................................ii

TABLE OF AUTHORITIES.....................................................................................iii

REPLY TO RESPONSE TO REQUEST FOR ORAL ARGUMENT ...................... 1

REPLY TO PRELIMINARY MATTERS................................................................. 1

REPLY TO STATEMENT OF THE CASE AND FACTS....................................... 2

REPLY TO THE EVIDENTIARY HEARING FACTS.................................3

REPLY TO THE COLLATERAL PROCEEDING TRIAL COURT'S ORDER. . 20

REPLY TO SUMMARY OF ARGUMENTS..........................................................20

REPLY TO THE CHALLENGE FOR CAUSE CLAIM...............................24

REPLY TO MCKLESKY V. KEMP CLAIM........................................ .28

REPLY TO "THE COMMENTS DURING VOIR DIRE CLAIM".................28

REPLY TO THE FAILURE TO PRESENT MITIGATION CLAIM................29

REPLY TO THE CUMULATIVE ERROR CLAIM....................................29

REPLY TO CONCLUSION CLAIM......................................................29

CERTIFICATE OF SERVICE..................................................................................30

CERTIFICATE OF COMPLIANCE ........................................................................31

11

TABLE OF AUTHORITIES_P_.ggg

Batson v. Kentucky, 476 U.S. 79 (1986).................................................11

Evans v. State, 800 So. 2d 182 (Fla. 2001)...............................................16

Mansfield v. State, 911 So. 2d 1160 (Fla. 2005)........................................16

McCleskey v. Kemp, 481 U.S. 279 (1987)................................................1

Melbourne v. State, 679 So. 2d 759 (Fla. 1996).........................................23

Panetti v. Quarterman, 551 U.S. 930 (2007).............................................7

Snyder v. Louisiana, 128 S. Ct. 1203 (2008).............................................19

Strickland v. Washington, 466 U.S. 668 (1984).........................................12

Witherspoon v. Illinois, 391 U.S. 510 (1968)............................................20

111

REPLY TO "RESPONSE TO REQUEST FOR ORAL ARGUMENT"

Mr. Frances requests that these issues be heard at oral argument.

REPLY TO "PRELIMINARY MATTERS"

At page one of the Answer Brief in a section entitled "Preliminary Matters,"

the State characterizes the McCleskey v. Kemp claim as simply a "theory that the

decision to seek the death penalty in this case was somehow 'racially motivated'

instead of being the direct result of the senseless and brutal murders that Frances

committed." The clear evidence in this case discussed at length in the Initial

Brief illustrating that race and politics permeated, infected and clouded the

decisions of the State is not simply a "theory." The facts adduced at the

evidentiary hearing support the McCleskey v. Kemp claim. At page two of the

Answer Brief the State boldly asserts that "under these facts, suggesting that race

had anything to do with anything has no basis in reality." Given record evidence

of the State's unusual strike of an African American juror for no good reason on

the heels of informing defense counsel that race was a barrier to plea negotiations,

the reality here is that the State is in denial that racial issues permeated this case.

The record in this case clearly shows that race played a factor in the decision to

seek death in this case, the decision to refuse a life offer, and the decision to strike

an African American juror.

1

REPLY TO "STATEMENT OF THE CASE AND FACTS"

At pages 2-7, the State simply block quotes portions from this Court's opinion

following direct appeal in 2007. Though Mr. Frances does not dispute this Court's

understanding of the case in 2007, evidence has come to light in postconviction

that has significantly and drastically changed the factual and legal landscape in this

case. Florida Rule App. Proc. 9.210(b)(3) mandates that the "Statement of the

Case and Facts" "shall include the nature of the case, the course of the

proceedings, and the disposition in the lower tribunal." The State's Answer Brief

includes no mention of this case's procedural development since the appointment

of CCRC in postconviction.

Florida Rule App. Proc. 9.210(c) states the following: "The answer brief

shall be prepared in the same manner as the initial brief; provided that the

statement of the case and of the facts may be omitted." The Appellant submits that

rather than simply block quoting this Court's direct appeal opinion from 5 years

ago, the State should have simply omitted this section. Obviously in this section

the State fails to squarely address this issues recently raised by the Appellant in the

lower court. Throughout the answer brief, the State chooses to simply ignore the

facts, including the fact that the first-assigned prosecutor in this case chose this

case for death based on race, and the fact that the second-assigned prosecutor

struck an African American juror based on her race.

2

REPLY TO "THE EVIDENTIARY HEARING FACTS"

The Appellee's section entitled "The Evidentiary Hearing Facts" starts at

page 7 and f'mally ends at page 36. This section appears to be an unreliable,

disjointed summary of the 1100 pages of evidentiary hearing testimony primarily

presented by the Appellant in support of this unconstitutional conviction and death

sentence.

Starting at page 7, the State discusses the testimony of assistant state

attorney Dorothy Sedgwick. In this section the State immediately gives the

misimpression that this prosecutor never considered race in her decisions

connected to seeking the death penalty in the David Frances case. Ms. Sedgwick's

full testimony, as well as the testimony of several defense attorneys and

corroborative e-mails contradict the assertion that "she did not discuss race as a

factor of the case with Frances' counsel." Pages 8-9 of the State answer show that

these "evidentiary hearing facts" are inaccurate with regards to Dorothy

Sedgwick's life offer discussions that focused on race. As further example, the

State offers the following: "Sedgwick said race was not a consideration in whether

or not to offer Frances a life sentence. 'Absolutely not. Period. Positively. No

question about it.'" This testimony is false. It flies in the face of Ms. Sedgwick's

later testimony wherein she admitted having discussions about race in connection

with the Frances case.

3

Prosecutor Sedgwick confirmed at the evidentiary hearing that when

attorney George Couture approached her about a possible life resolution in this

case, her answer was no, that life would not be offered. She admitted that she

"may have" said something to Mr. Couture about race during those plea

discussions because another attorney may have "accuse[d her] [] of being racially

discriminatory" on another death penalty case. PC ROA Vol. VIII, 18. With

regards to the Frances case, she stated: "I, basically, would have thought that if I

did offer a plea of life in this case it would have been a matter of ridicule that we

would be accused of being racially discriminatory." PC ROA Vol. VIII, 18.

Regarding discussions with the defense about a life plea in the David

Frances case, she stated, "there were probably some conversations about that." PC

ROA Vol. VIII, 17. Prosecutor Sedgwick was asked:

Could you describe those conversations further about reasons whyyou might or might not offer a life sentence in this case?A Say that again?Q Could you please describe in further detail, if you could, yourconversations and your thought processes of why you might or mightnot offer a life sentence in this case?A My thought processes?Q Yes.A My thought processes the whole time was, I did not expect Iwould ever be offering a life sentence in this case because upon theevidence that I saw. I was also waiting to see if some huge problemdeveloped. I didn't really anticipate that, and I don't recall anythingdeveloping.Q Did you, in fact, mention to attorney George Couture that racewas a factor in your decision?A Absolutely not. And - it's unclear to me, even after reading

4

George Couture's affidavit, precisely what he is accusing me ofsaying. And the reason I say that is because the only words he has inquotations is, not letting this one go. It feels he is confident ofaccusing me saying I said not letting this one go.. Nothing else is inquotations.Q Did race play any consideration in your decision not to offer lifein the David Frances case?A Absolutely not. Period. Positively. No question about it.Q Did you say anything at all regarding race to George Couture inconnection with this case?A I may have.Q And what context might that have been?A I recall having conversations with several attorneys starting outwith Don West. After Don West filed a motion under McCleskeyversus Kemp, you know, alleging - trying to allege racialdiscrimination in a case in seeking the death penalty, and then whenhe was confronted with the case law and he had to determine whetherhe was going to accuse me of being racially discriminatory in thecase, he withdrew it. After looking at the case law on that, I haddiscussions with numerous attorneys, sometimes, you know -- I haddiscussions with probably several attorneys in cases which I may havehad with George Couture in which, you know, I would havechallenged him that the evidence in this case was so overwhelming,the invasion was so terrible that there was absolutely no reason tooffer a plea of life in this case. And if - you know, I, basically, wouldhave thought that if I did offer a plea of life in this case it would havebeen a matter of ridicule that we would be accused of being raciallydiscriminatory.

PC ROA Vol. VIII, 17-19. Evidence that the State refused to consider a life

sentence for David Frances based on the fear of ridicule and accusations that the

state attorney's office was being racially discriminatory is the type of evidence

contemplated by McCleskey which would warrant the preclusion of the death

penalty.

Although Ms. Sedgwick only admitted above that she "may have" had such

5

conversations during plea negotiations, documentary evidence confirmed these

conversations. See Defense EH Exhibit 4, PC ROA Vol. XVII, 19-21, admitted at

PC ROA Vol XII, 461, e-mails from attorney Gerod Hooper. The e-mail dated

August 3, 2004 informed:

...they will NOT allow David to plea to life. . . .ASA DorothySedgwick [said] since her office had come under criticism in the pastfor seeking death disproportionately when the victim was White, shewould not now consider waiving death [] in a Black on Blackhomicide. . . .[we] have discussed the possibility of a M/ to recuse theSAO 9th from further prosecution of this case based uponinappropriate consideration of race in making a determination to seekdeath.

The August 27, 2004 e-mail from Gerod Hooper to attorneys Peter Schmer and

Susan Cary stated:

In any event there is no present need to discuss plea options withDavid. The SAO has in the past come under fire for seeking deathdisproportionately in cases where the victim was White. Havingspoken to George Couture about comments made by the ASAformerly assigned to this case my suspicion is they will not come offdeath in this case as the victims are Black and they perceive a need tobalance the stats. (Think this is wrong? I have also seen themannounce they would seek death merely to force a continuance).

It is wrong, and the attorneys should have filed a motion to preclude the death

penalty under McCleskey v. Kemp.

Though she initially attempted to deny that race played a factor in her

decisions, she ultimately admitted:

The question, Ms. Sedgwick, was, did George Couture approach youand ask you about a life sentence in the David Frances case?

6

A I recall, generally, that George Couture indicated they werewilling to plea to life in this case.Q And what was your response?A No.Q Did you mention anything at all about race after saying no?A As I said, I may have said that this case was so strong and sodeserving of the death penalty that they would forever be accusing usof racial discrimination in other cases if we waived death in this case.

PC ROA Vol. VIII, 22. She confirmed, "I may have used some words, you know,

referencing that a plea to life on this case would be so ridiculous we would be

accused of racial discrimination forever by defense attomeys for offering a plea of

life on this case." PC ROA Vol. VIII, 25.

At page 9 of this section, the State abruptly switches topics from plea

negotiations to psychologist Dr. Mark Cunningham's testimony. They mention

that he did not conduct any psychological testing on Mr. Frances, that he is not a

neuropsychologist, and that he does not conduct neuropsychological assessments.

What they fail to mention is that Dr. Cunningham is a nationally-renowned, award-

winning, well-respected psychologist who testified in and was cited by the United

States Supreme Court in the case of Panetti v. Quarterman, 551 U.S. 930 (2007).

See, Id. at 961, the Court specifically citing Dr. Cunningham's testimony. The

Appellant urges that this Court not discount Dr. Cunningham's testimony like the

lower courts did in Panetti. Considering in part the testimony of Dr. Cunningham

in Panetti, the Court stated:

We are also hesitant to decide a question of this complexity before the

7

District Court and the Court of Appeals have addressed, in a moredefinitive manner and in light of the expert evidence found to beprobative, the nature and severity of petitioner's alleged mentalproblems. The underpinnings of petitioner's claims should beexplained and evaluated in further detail on remand. The conclusionsof physicians, psychiatrists, and other experts in the field will bearupon the proper analysis. Expert evidence may clarify the extent towhich severe delusions may render a subject's perception of reality sodistorted that he should be deemed incompetent.

Id. at 961-62. Although Mr. Frances does not present issues of incompetency to be

executed, he does present powerful statutory and non-statutory mitigation that has

significantly impacted Mr. Frances' mental health. Unlike at trial, these issues

were discussed at length during the postconviction evidentiary hearing.

At pages 10-16, the State discusses the 26 adverse developmental factors

that Dr. Cunningham found to have adversely affected Mr. Frances' mental health

and well being. The State even acknowledges in this section at page 13 that "In

Cunningham's opinion, it was a significant factor that the victims were female due

to a 'nexus between violence against women and early life attachment related

issues.'" This phenomena was not explained to the jury that recommended that

Mr. Frances be executed for these murders. At pages 15-16 the State

acknowledges Dr. Cunningham's testimony wherein he opined that there was

certainly evidence supporting statutory mental heath mitigators in this case:

In Cunningham's opinion, Frances fit the statutory criteria for extremeemotional disturbance because of 'adverse developmental factors.'(V10, R280). Frances also acted under duress or substantialdomination of another because of the 'cumulative effects on him.'

8

(V10, R281). Also, Frances' capacity to appreciate the criminality ofhis conduct and conform his conduct to the requirements of law wassubstantially impaired because of the adverse developmental factors.(V10, R284).

State's AB at 15-16. It is in part because of such evidence that Mr. Frances

submits that this Court should grant a new penalty phase in this case at the very

least. The jury who recommended death for Mr. Frances did not hear about the

substantial statutory and non-statutory mitigation in this case.

At page 16, the State in their "Evidentiary Hearing Facts" section reports

that "The only diagnosable disorder Frances had was substance dependence. (V10,

R303)." An inspection of this page of transcript reveals that Dr. Cunningham on

this page never said that this is the "only" diagnosable disorder. The specific

question posed by the State was the following:

Q: And did you diagnose Mr. Frances with any disorders? Let mebreak that down. Axis I, any clinical disorders?A: There was at the time of the offense, marijuana dependence. I'mtrying to recall whether that would be under Axis I or Axis II. Ibelieve that is an Axis I disorder.Q: Are you diagnosing him with substance dependence-A: Yes, ma'am.

PC ROA Vol. X, 303. The State in their "Evidentiary Hearing Facts" inserts an

"only" where there is none, and fails to mention that the question posed on this

page specifically asked only about "Axis I disorders."

At page 17, the State reports the following: "Cunningham testified that

Frances does not have any type of personality disorder. (V10, R321)." What the

9

State fails to report here is that on the same page, Dr. Cunningham testified that

"[t]here are deep-seeded psychological disturbances within him as a result of the

attachment and other sorts of damage," and also, that Mr. Frances does not fit the

criteria for anti-social personality disorder. PC ROA Vol. X, 321.

In reviewing the penalty phase testimony with Dr. Cunningham at the

evidentiary hearing, also at page 17, the State mentions that "Ten witnesses

testified at the penalty phase. . . The testimony presented was that Frances was a

good baseball player, a good kid, an athlete. . . Further, David and Elvis were like

'night and day' with Elvis being aggressive and high tempered." Here the State

fails to acknowledge the testimony of Gerod Hooper wherein he admitted that

nothing prevented the presentation of 26 adverse developmental factors found by

Dr. Cunningham.

Q: Mr. Hooper, you said that your strategy at the penalty phase wasthe good son, bad son?A: That was the theme of the penalty phase.Q: Okay. Could you have presented to the jury that David Franceswas the emotionally damaged good son?A: Well, you could if you want to, if you think it's going to help.

PC ROA Vol. XIV, 831. It would have helped, and trial counsel should have

presented all of the available mitigating evidence at the penalty phase.

Also at page 17, the State skips nearly 100 pages of evidentiary hearing

testimony. After "summarizing" Dr. Cunningham's testimony at "(V10, R346),"

they immediately jump to "(V11, R421)," the testimony from Rowana Williams.

10

Interestingly, the omitted portion of testimony is comprised largely of the State's

cross-examination of Dr. Cunningham.

At pages 18-19, the State acknowledges testimony from 3 different defense

attorneys on the case who confirmed that Dorothy Sedgwick mentioned race

during attempted plea negotiations: Rowana Williams, Peter Schmer, and George

Couture. At page 19, the State "summarizes" evidentiary hearing testimony from

Peter Schmer: "Schmer did not recall the first time he heard about Couture's

interpretation of Sedgwick's remarks regarding race as an issue. He knows that it

was discussed after the trial was over, but not 'with any degree of certainty' that it

was discussed while the trial was pending. (V12, R498, 507)." What the State fails

to mention here is Mr. Schmer's testimony on the very next page wherein he

discusses the contents of the August 2004 e-mail about racial comments made by

the State. The e-mails actually confirm that race was discussed while the case was

pending, therefore one not have to rely upon Mr. Schmer's memory on this point.

At pages 23-24, the State block quotes testimony from attorney Walter Ruiz

which absolutely supports relief on the Batson/Juror Roberts claim. As

acknowledged by the State in this section, regarding his failure to point out that the

State misrepresented her true response after they moved to strike Juror Roberts,

Mr. Ruiz stated: "I'm not sure in terms of what I was thinking at the time, but I

think, essentially, I just didn't remember at that time. Nobody else in our team

11

caught it at that point in time, and it was just a mistake." At page 24 the State

acknowledges, "Ruiz said he made a mistake, and he should have included

challenging the dismissal of Juror Roberts when he challenged the dismissal of

other jurors. (V13, R 636, 637). He just 'didn't catch it.' (V13, R638)."

Also at page 24, the State acknowledges testimony from attorney Ruiz

wherein he stated he did not consider filing a motion to preclude the death penalty

based on racial considerations because "he was not aware of a 'legal possibility.'

(V13, R641)." The "legal possibility" was McCleskey v. Kemp. Just because

Walter Ruiz did not know to use that case to preclude the death penalty does not

support the State's argument here. Walter Ruiz is noted now as the fourth defense

attorney on the Frances case who was privy to discussions about race in this case.

The defense should have filed the appropriate motions, and their failure to do so

constitutes ineffective assistance of counsel under Strickland.

At pages 25-26, the State discusses Gerod Hooper's testimony about the

McCleskey v. Kemp issues, including the e-mails he sent to his colleagues inquiring

about Dorothy Sedgwick's comments. The State acknowledges here yet a fifth

attorney privy to the McCleskey v. Kemp issues, attorney Junior Barrett.

Supporting the ineffective assistance of counsel claim, the State acknowledges

Gerod Hooper's testimony wherein "He could not recall why he did not file the

motion or recall any further discussion with his supervisor regarding the race issue.

12

(V13, R701)." As the failure to file a motion to preclude the death penalty clearly

was not part of some strategy, this Court should grant relief under Strickland.

At page 27, then repeated again at page 30, the State mentions the following

testimony: "Hooper did not believe race was a factor in Wixtrom's decision to seek

the death penalty. (V14, R848)." As the record shows, the decision to seek death

against David Frances was made well before the case was transferred to Mark

Wixtrom.

Regarding the improper comments made to the jury by the trial court about

Southern heritage and the need to be emphatic in their responses about

recommending death, at page 29 the State mentions the following testimony,

"Hooper believed the trial judge's comments about 'Southern heritage' would not

taint the jury. 'Actually the opposite.'" The State continues at page 30, "In

Hooper's opinion, 'light humor like southern heritage, obviously, is positive.'

(V14, R807)." A bit of humor to put the jurors at ease might be a good tactic in

some instances, but in this specific instance, the court was using the "Southern

heritage" comments to impress upon the jury the need to be absolutely unequivocal

when asked if they would recommend the death penalty in this case. The court's

repeated comments ha the effect of tainting the jurors into feeling they must

recommend the death penalty in this case.

Just because Gerod Hooper failed to see the objectionable nature of the

13

court's comments does not mean the comments were not objectionable. Even the

postconviction court found them to be objectionable. The lower court found that

the comments were "perhaps patronizing and unrealistic, particularly in light of the

evolving standards of jury selection, and that counsel lodged an objection to them."

By the lower court found that " because there [was] no indication in the record that

the trial court judge was intentionally misleading or trying to intimidate any of the

potential jurors, these comments and/or questions, albeit improper, do not rise to

the requisite level of prejudice." Postconviction Order at PC ROA Vol. VI, 140-

41. So even though Mr. Hooper testified that they were not objectionable, the

defense actually objected to them. But the objections came too late and the

defense failed to ensure that the jury pool was not tainted and predisposed towards

recommending the death penalty.

At page 30 the State "summarizes" the testimony of attorney Kim Crag-

Chaderton. What they fail to mention here is that her experience at the public

defender's office prior to doing opening statements in the Frances case was limited

to traffic, misdemeanor, and juvenile cases. She had actually never done a felony

case before. PC ROA Vol. XIV, 890. The State failed to mention that Julie

Norman testified that Ms. Crag-Chaderton did not know the facts of the case when

they travelled to the Virgin Islands to interview witnesses. Ms. Norman felt Ms.

Crag-Chaderton was unprepared to interview any of the witnesses, and she even

14

brought her young daughter with her. PC ROA Vol. XIV, 541-42.

At page 31, revisiting the issue concerning race and plea discussions, the

State acknowledges the testimony of the fifth attorney who mentioned that race

was an impediment to settling this case for life. Page 31 reads: "During the time

Barrett spent on Frances' case, several attempts were made with ASA Sedgwick to

negotiate a sentence for Frances (V14, R901-02). Frances was willing to accept a

life sentence but the [sic] Sedgwick would not agree. (V14, R902). Sedgwick told

Barrett she was not willing to offer life 'because she didn't want to be accused of

being more lenient with a black on black crime, which this was.' (V14, R903, 905,

910)." The State also mentions that "Barrett did not believe that Sedgwick

exhibited racism. (V14, R907, 909)." This is not the standard for relief under

McCleskey. A capital defendant need not show that a prosecutor is "exhibiting

racism." A defendant need only show that race was a factor in the decision to seek

the death penalty. In this case it clearly was a factor, exhibited by the statements

of the prosecutor, the corroborating five attorneys who had knowledge of the

statements, and the corroborating e-mails introduced at the evidentiary hearing. By

this evidence, Mr. Frances has shown that race was a factor in the decision to seek

the death penalty in this case.

At the bottom of page 31, the State acknowledges that prosecutor Jeff

Ashton was familiar with a 1990s newspaper article involving "allegations of racial

15

bias in death penalty cases in the Orlando area." One newspaper article published

statistics indicating that their office rarely sought the death penalty in cases of

black on black crime, with one case in particular highlighted in a series of articles.

The postconviction court took judicial notice of Evans v. State, 800 So. 2d 182

(Fla. 2001), a black on black murder case that Mr. Ashton prosecuted. Steven

Evans was a twice-adjudged mentally incompetent paranoid schizophrenic who

was accused of shooting and killing an alleged fellow gang member. Mr. Ashton's

office sought death against Mr. Evans after the publication of the news articles.

Steven Maurice Evans, now blind, and fearing that the prison guards have

poisoned him with pesticides and caused a cancer-like disease inside of him called

sarcoidosis, sits on Florida's death row with Mr. Frances following the murders of

black victims.

At page 32, the State repeats Jeff Ashton's assertion that "Race was not an

issue in Evans' case." Mr. Ashton's office has also denied that race was an issue

in the Frances case. But testimony of prosecutor Dorothy Sedgwick, five defense

attorneys, and two e-mails from the public defender's office reflect that race was

an issue in the Frances case. Dorothy Sedgwick was even admonished by the

Chief Judge of the Ninth Judicial Circuit when she announced a possible plea

bargain that would take death off the table in Mansfield v. State, 911 So. 2d 1160

(Fla. 2005), a case involving "people of ebony hue, people of color and people who

16

were victims of color." See Id. at 1168-1170 for the full admonishment of

prosecutor Sedgwick. Though ill and "racist" intent may be lacking in these

examples and in the Frances case, McCleskey v. Kemp still prohibits race-based

considerations in decisions to seek death or offer life. Ms. Sedgwick violated the

very clear holdings of McCleskey v. Kemp, and the defense should have filed the

appropriate motions.

It is not surprising that Mr. Ashton would deny that race was a factor in the

decision to seek death in the Evans case. If he admitted that race was a factor in

the decision to seek death in Evans, that admission might disturb the conviction

and sentence, running contrary to the State's interest in finality in these death

penalty cases. In the case at bar, Dorothy Sedgwick has actually admitted that race

was a factor in the Frances case. She did not offer life because she did not want to

be ridiculed and accused of being racist. This is improper under McCleskey.

In a footnote at page 32, the State makes special mention of CCRC's lack of

statistics to support the inference of race-based considerations in the SAO 9th's

death penalty decisions. Above and beyond mere statistics, CCRC presented

actual statements from the prosecutor with corroboration from five defense

attorneys and e-mails which support more than a simple statistical inference.

McCleskey v. Kemp held that a litigant would need more than just statistics. Mr.

Frances brings statements from the prosecutor, and the example of the Evans case,

17

another black on black crime where the decision to seek death is quite puzzling.

When the Mansfield, Id. judicial admonishment is considered in conjunction with

the statements Ms. Sedgwick made to the defense attorneys in the Frances case, it

becomes clear that the SAO 9th chose the Frances case for death based on race.

Switching gears at page 32, there is a discussion of the testimony of State

expert Dr. Jeffrey Danzinger. The answer brief reads as follows: "Frances refused

to take the MMPI-II psychological test," citing "(V15, R964)." He did not refuse

to take the test. Here the State fails to inform that Dr. Danzinger told Mr. Frances

that he was merely "debating" for him to take the test, and that he did not inform

Mr. Frances it was "very important for [him] to take the test" nor did he call to

inform postconviction counsel of the need to administer the test. (PC ROA Vol.

XV, 982). Also, there was some question about whether he had taken the test

before. (PC ROA Vol. XV, 983-84). Regarding Dr. Danzinger, it is not surprising

that the State was able to hire an expert to evaluate a defendant and testify that

there was nothing wrong with him mentally. Obviously Dr. Cunningham found

otherwise.

At page 35, the State discusses the testimony of prosecutor Wixtrom. Here

the State fails to mention the concession that prosecutor Ashton made. Mr. Ashton

said that he found it "unusual" that a certain document turned over to the State

records repository lacked a bate stamp. PC ROA Vol. XV, 1010. This was a

18

document relating to the African American juror wrongfully stricken by the State.

The State acknowledges the following testimony of prosecutor Wixtrom:

"Wixtrom made a notation on the juror seating chart 'okay.' (V15, R1025-26). At

some point Wixtrom wrote 'opposed' in the section for Juror Roberts (V15,

R1027-28). Wixtrom could not recall why he changed 'okay' to 'opposed' in his

notes. (V15, R1031)." The Appellant submits that the notation "opposed" was

placed on this non-bate-stamped document in attempts to justify or obfuscate what

the State knew was the wrongful strike of an African American juror.

The State cites the following at pages 35-36: "The only reason Wixtrom

would have struck Juror Roberts was because it said on his list that she was

opposed to the death penalty." Mr. Frances submits that the "opposed" notation

was made after the strike of Juror Roberts, and the genuine "only reason"

prosecutor Wixtrom struck this juror was the same reason life was not an option in

this case: race. Wixtrom even conceded in his testimony that the "opposed"

notation may have been made later rather than contemporaneously with her

responses: "It appears to be darker ink than 'okay' next to it. I don't know if I used

a different pen or a different day." PC ROA Vol. XVI, 1048. In any event, a

minority juror was stricken in this case for no good reason, and this conviction

should not stand. See Batson, Snyder, and Strickland, Id.

This Court's confidence in the outcome of this case should be undermined

19

based on the failed plea negotiations and the wrongful strike of Juror Roberts.

REPLY-"THE COLLATERAL PROCEEDING TRIAL COURT'S ORDER"

At pages 36-61, the State simply block quotes the lower court's order and

requires no reply.

REPLY TO "SUMMARY OF THE ARGUMENT"

The State begins here at page 61 claiming as follows "The 'challenge for

cause' claim is based on the incorrect premise that the juror at issue was removed

by a peremtory challenge. In fact, the juror was removed for cause-as it turned

out, the State, and the defense, were confused about the juror's answers, and

mistakenly exercised a cause challenge." First of all, the Appellant is not

currently operating under any "incorrect premise." Mr. Frances' pleadings

throughout postconviction have made clear the mistakes that were made during

trial in connection with the strike of this juror. Whether the State moved to strike

Juror Roberts peremptorily or for cause really does not matter in the context of

Batson and Snyder. The fact that the trial court granted a cause challenge makes

this error that much more egregious, because even if Ms. Roberts stated that she

opposed the death penalty, which she did not, she should not have been stricken for

cause. See Witherspoon v. Illinois, 391 U.S. 510 (1968). The State should not be

permitted to retain this conviction where they struck a black juror for no good

reason.

20

The State further obfuscates this issue by asserting the following: "the State,

and the defense, were confused about the juror's answers, and mistakenly

exercised a cause challenge." Here the State gives the misimpression that there

was some sort of a joint agreement between the State and the defense to strike

Juror Roberts. It was the State, and the State alone, who made the challenge. If

the defense then became "confused" and failed to clarify the juror's actual answers,

and failed to protect Ms. Roberts' and Mr. Frances' constitutional and equal rights,

then the defense was ineffective. Juror Roberts was addressed multiple times, and

each time she clearly announced that she could vote for the death penalty, and each

time she never once voiced opposition to the death penalty. The "confusion" here

over Juror Roberts' clear answers belying the State's "race-neutral" reasons

provided to the trial court for the strike is frankly quite belwildering.

Then the State claims that "If the mistaken removal of a juror for cause can

somehow state a claim for relief, that claim should have been raised on direct

appeal. It was not, and is procedurally barred now." First of all, this was not just

any juror, this was an African American juror. Second of all, there is a real

question here whether this "mistaken removal" was actually mistaken, or whether

prosecutor Wixtrom intended to strike this juror based on her race. Prosecutor

Ashton was the first to rid the Frances panel of two African American jurors

(Jurors Spinks and Dorsey), and it appears that prosecutor Wixtrom was just

21

modeling his tactics and behavior after the more experienced prosecutor. Except,

Wixtrom did make a big mistake because the best he could do to provide a race-

neutral reason was to misrepresent Juror Roberts' responses after he made the

move to strike. As far as the procedural bar argument, the defense failed to fully

preserve this issue for direct appeal, and this issue is ripe for postconviction.

The State then makes the argument on page 62 that "Frances does not claim,

and could not show, that a biased juror sat on his jury. That's what he must show

to obtain post-conviction relief, and he has not done so." The reason Frances did

not claim that is because that is not his claim. His claim here is that a black juror

was stricken wrongfully by the State, not that a biased juror served on the jury.

Mr. Frances first raised his claim in his initial 3.851 motion on April 9, 2009.

Apparently after 3 and half years of postconviction litigation including a full

evidentiary hearing and, the State still does not comprehend the error that is clear

on the face of the record. The State then argues that "because a peremptory

challenge is not at issue, the Batson/Neil/Slappy analysis has nothing to do with the

issue." The Appellant wonders if the State would concede error here if the trial

court would have granted the State a peremptory challenge rather than a cause

challenge. For reasons expressed previously, the State's attempt to distinguish

Batson/Neil/Slappy/Snyder line of cases is unavailing.

The case of Melbourne v. State, 679 So. 2d 759 (Fla. 1996) stated as

22

follows:

To the extent that Slappy and its progeny require a "reasonable" ratherthan a "genuine" nonracial basis for a peremptory strike, we recedefrom those cases. While the Florida Constitution cannot guarantee thatevery peremptory challenge exercised in Florida will be rational, itcan guarantee that each will be nonracial.

Id. at 765-66. The lower courts here failed to ensure that the strike at issue was

reasonable, genuine, or nonracial. Just because the trial court ultimately classified

the State's unspecific strike in Frances as a "cause" strike should not permit them

to retain this wrongful conviction.

The State characterizes the McCleskey claim on page 62 as the "reverse-

McCleskey," stating, "The 'reverse-McCleskey' was rejected by the post-

conviction trial court." There is nothing "reverse" about this claim. McCleskey

prohibits the State from making race-based decisions on the death penalty, which is

exactly what the evidence presented at the evidentiary hearing shows. If anything

is reverse here it is the State's argument against the Batson claim, where they

would require Mr. Frances to prove that an actually biased juror sat on the jury

when the claim is that they wrongfully struck a minority juror.

The State then references "The two allegedly inappropriate comments by the

trial court during voir dire were not objected to, which suggests that they were not

perceived at the time as being objectionable." As discussed previously in this

reply brief, several improper comments by the trial court went unobjected; when an

23

objection was f'mally made, it fell short, and it was too late.

Also at page 62, the State claims that "it was not improper for the State to

refer to the penalty phase jury instructions as containing the mitigating

circumstances." This bare assertion fails to grasp the real substance of the claim.

The problem was that the defense was not going to "list" any mitigating

circumstances, and therefore to allow the State to repeatedly inform the jury that

they would be getting a list of mitigators when the list was never commg was

improper and prejudicial, especially where the State provided a list of aggravators.

Regarding the penalty phase issues of failing to present available mitigation,

the State claims on page 63 that the lower court "resolved the witness credibility

issues on which that claim turns against Frances." The undersigned is unclear as to

which witnesses the State is speaking of, and to what credibility issues the State is

referring.

Regarding the cumulative errors, the State claims on page 63 that "there is

no 'error' to 'cumulate.'" The Appellant submits that much like the lower court,

the State ignores the multitude of errors in this case.

"REPLY TO ARGUMENT - THE 'CHALLENGE FOR CAUSE' CLAIM"

At page 63, the State concedes that "This is not the typical case, because the

juror at issue was challenged by mistake by the State." But then the State asserts

that relief should be denied because there is "no suggestion that any biased juror

24

served." Then the State suggests that "Frances was [not] prejudiced by the

removal of a juror who was, at worst, a juror that Frances was likely glad to see

removed." (emphasis in original). Like the State's "race-neutral" reasons for

removing Juror Roberts, there is absolutely no record evidence whatsoever to

support that Frances was "likely glad" to see this juror stricken. The likely "at

worst" case scenario is that prosecutor Wixtrom struck this juror because she was

black, then he intentionally misrepresented her responses to the trial court, and

then he feigned innocent mistake at the postconviction evidentiary hearing to cover

up his past transgressions.

The State claims at page 64 that "the record of voir dire is not a model of

clarity." To the contrary, the record is absolutely clear. The transcript speaks

volumes here. In a light most favorable to the State, the transcript shows that "the

State challenged this juror by mistake." At worst, it shows something much more

sinister, especially in light of prosecutor Sedgwick's pre-trial comments regarding

race, prosecutor Ashton's first moves to strike African American jurors Dorsey and

Spinks, and f.mally, prosecutor Wixtrom's actions at voir dire, his unusual juror

seating charts, and his evidentiary hearing explanations.

In a footnote at page 64, the State creatively attributes strategy where in fact

there was no strategy. The State's theory now is that because at Dir. ROA Vol. IV,

615-17, while the defense was renewing their objections to the removal of two

25

other jurors, they did not renew their objection to the removal of Juror Roberts

because they did not want her. The State claims, "These actions suggest that the

defense had no desire to see juror Roberts return to the panel, which is the most

that could have been done." Mr. Ruiz actually testified that he made a mistake in

this regard:

MR. HENDRY: Mr. Ruiz, do you feel you made a mistake in failingto specifically mention juror 21 [Roberts] during this time of thediscussion of jurors 35 and 36?THE WITNESS: Yes,THE COURT: So you feel now that you made a mistake and youdidn't feel then-THE WITNESS: Quite frankly, I didn't catch it.

PC ROA Vol. VI, 637-638. This Court should not even consider matters of

strategy or prejudice in this case. To do so would jeopardize the opportunity to

cure a clear Batson error. If this Court must consider strategy and prejudice: the

defense failed to preserve a Batson error, and as a result an African American juror

was stricken for no good reason. That is the prejudice here.

The State claims at page 64, "It makes no sense at all for defense counsel to

complain because the State mistakenly removed this juror for cause - the challenge

benefitted Frances and worked to the detriment of the State." As far as prejudice,

Mr. Frances continues to reside on death row. He received absolutely no benefit

when the State violated Batson and his attorneys failed to preserve the issue for

appeal. Nothing thus far has worked to the detriment of the State after they

26

violated Batson. Carratelli is the "square opposite of the scenario of this case" as

finally conceded by the State at page 34, and it deserves no consideration.

In a footnote at page 66, the State says, "The State does not concede

deficient performance by defense counsel. While it is debatable, the appearance is

certainly that defense counsel took advantage of the State's mistake and avoided

having to use a challenge of their own to remove this juror." Mr. Frances stands to

be executed by the State as a result of this conviction and death sentence. He has

failed to take advantage of anything. Juror Roberts was about to be seated as the

12* and final juror. The State struck her because she was black. The record is

void of any "strategy," and is full of racism or racial considerations. This is not

mere "hyperbole" as the State suggests on page 69.

The State also claims on page 69 that this claim "is undeserving of the

attention it has received." Mr. Frances is the Appellant in this action, and he

submits that when the lower court found that the defense struck Juror Roberts in its

order denying this claim, it became obvious that this claim was receiving no

attention from the lower court. The State claims on page 69: "[A]t the end of the

day. . . .This tactic is unworthy of our profession." Prosecutor Wixtrom's tactics

and the lower court's order are actually unworthy of our profession.

REPLY TO "THE 'MCCLESKEY V. KEMP CLAIM"'

The State asserts at page 71 that "This claim is based on the testimony of

27

one former assistant public defender." That assertion is false. The State concedes

on page 75 that "the State Attorney's Office was sensitive to the McCleskey issue."

These "sensitivities" are actually racial considerations that unfortunately led to Mr.

Frances receiving a death sentence.

REPLY TO "THE COMMENTS DURING VOIR DIRE CLAIM"

On page 76 the State claims "scriverner's error" with regard to the "gentile"

comments made by the trial court. They had an opportunity to rebut this claim

with testimony from the court reporter, yet failed to do so. As such, the doctrine of

Laches, or inequity, should prevent them from raising this defense. The State

should be procedurally barred from raising this defense because they should have

presented this defense at the evidentiary hearing. Mr. Frances could have rebutted

any testimony from the court reporter's office on this issue. Now he has only the

shield of Laches.

REPLY TO "THE FAILURE TO PRESENT MITIGTION CLAIM"

On page 79, the State puts "mitigation" in quotes, as if the evidence is not

mitigating. The evidence Mr. Frances presented in postconviction was certainly

mitigating. There are no "credibility of witness questions" that need to be

resolved. The mitigating evidence presented in postconviction was certainly not

"cumulative."

REPLY TO THE "CUMULATIVE ERROR" CLAIM

28

The errors in this case are quite substantial in quantity and in substance.

REPLY TO "CONCLUSION"

Though perhaps "Carr's conviction and sentence of death should be affirmed in

all respect," Mr. Frances' conviction and sentence should not.

29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been

furnished by e-mail service to Assistant Attorney General Kenneth S. Nunnelley

[Ken.Nunnelley@myfloridalegal.com and CapApp@myfloridalegal.com] on this

13th day of November, 2012.

avid Dixon HendryFlorida Bar No. 0160016Assistant CCRCCAPITAL COLLATERAL REGIONALCOUNSEL-MIDDLE3801 Corporex Park Dr., Ste. 210Tampa, Florida 33619813-740-3544Attorney for Appellant

30

CERTIFICATE OF COMPLIANCE

I hereby certify that a true copy of the foregoing Reply Brief of the

Appellant, was generated in a Times New Roman, 14 point font, pursuant to Fla.

R. App. P. 9.210.

avid Dixon HendryFlorida Bar No. 0160016Assistant CCRCCAPITAL COLLATERAL REGIONALCOUNSEL-MIDDLE3801 Corporex Park Dr., Ste. 210Tampa, Florida 33619813-740-3544Attorney for Appellant

31