Opposition Brief — Johnny Mack Sketo Calhoun, Petitioner v. Florida

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NO. 20-5086

IN THE SUPREME COURT OF THE UNITED STATES

JOHNNY MACK SKETO CALHOUN,

PETITIONER,

STATE OF FLORIDA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S APPENDIX

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Jason William Rodriguez

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

INDEX TO APPENDIX

Postconviction Court’s Order................................................................................... 1–53

Petitioner’s Initial Brief in the Florida Supreme Court..................................... 54–175

State’s Answer Brief in the Florida Supreme Court ........................................ 176–265

Petitioner’s Habeas Petition in the Florida Supreme Court .............................. 266–91

State’s Habeas Response in the Florida Supreme Court ................................. 292–312

State’s Motion to Recall the Mandate ............................................................... 314–319

Florida Supreme Court’s Stay Order ........................................................................ 320

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Filing # 75160408 E-Filed 07/18/2018 03:48:59 PM

IN THE SUPREME COURT OF FLORIDA

Case No. SC18-340

Lower court Case No. 2011-CF-11A

______________________________________________

RECEIVED, 07/18/2018 03:53:25 PM, Clerk, Supreme Court

JOHNNY MACK SKETO CALHOUN,

Appellant,

STATE OF FLORIDA,

Appellee.

______________________________________________

ON APPEAL FROM THE CIRCUIT COURT

OF THE FOURTEENTH JUDICIAL CIRCUIT, IN AND

FOR HOLMES COUNTY, STATE OF FLORIDA

______________________________________________

INITIAL BRIEF OF THE APPELLANT

______________________________________________

KATHLEEN PAFFORD

Assistant CCRC – North

Florida Bar No. 99527

ELIZABETH SALERNO

Assistant CCRC-North

Florida Bar No. 1002602

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUSNEL

– NORTH

1004 DeSoto Park Drive

Tallahassee, Florida 32301

COUNSEL FOR APPELLANT

054

TABLE OF CONTENTS

REQUEST FOR ORAL ARUGMENT………………………………..…………...v

PRELIMINARY STATEMENT…………………………………………….......…v

TABLE OF AUTHORITIES ………...……..…………………………………..…vi

STATEMENT OF THE CASE AND FACTS……………………………………..1

PROCEDURAL HISTORY…………………………………………………1

II.

CALHOUN’S TRIAL…………………………………………………….…3

A. The murder of Mia Brown……………………………………………….3

B. The State’s Case………………………………………………………….3

C. The Defense’s Case…………………………………………………...….9

III.

THE EVIDENTIARY HEARING…………………………………………11

A. Newly discovered evidence implicates Doug Mixon as a viable

suspect……………………………………………………………….….11

B. Doug Mixon’s alibi has been conclusively refuted and his alleged alibi

witness says Mixon confessed to murdering Mia Brown………………12

C. Expert witnesses have cast doubt on the veracity of the State’s evidence

and arguments…………………………………………………………..13

D. Trial counsel was unable to articulate strategic reasons or a strategy

based on sound, professional judgment, for most of the alleged errors and

omissions………………………………………………………………..14

IV.

THE CIRCUIT COURT’S DENIAL OF RELIEF……………………...…14

SUMMARY OF THE ARGUMENT…………………………………………..…15

ARGUMENT……………………………………………………………………...19

055

CALHOUN WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT TO

EFFECTIVE COUNSEL AND A FAIR TRIAL DUE TO COUNSEL’S

ACTIVE CONFLICT OF INTEREST……………………………………..19

II.

NEWLY DISCOVERED EVIDENCE REGARDING DOUG MIXON SO

WEAKENS THE CASE AGAINST CALHOUN THAT IT CREATES A

REASONABLE DOUBT AS TO HIS GUILT…………………………….24

A. The newly discovered evidence……………………………………...…26

1. Natasha Simmons……………………………………………………26

2. Robert Vermillion……………………………………………...……28

B. The newly discovered evidence gives rise to a reasonable doubt about

Calhoun’s guilt………………………………………………………….30

C. The circuit court erred by denying relief……………………………..…34

III.

CALHOUN’S TRIAL WAS AFFLICTED WITH VIOLATIONS OF

BRADY V. MARYLAND…………………………………………………34

IV.

CALHOUN’S APPOINTED TRIAL COUNSEL RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL…………………………...40

A. Counsel’s failure to investigate Doug Mixon’s alibi was deficient

performance that prejudiced Calhoun………………………………..…42

1. Counsel’s failure to investigate Doug Mixon’s alibi was deficient

performance…………………………………………………………42

2. Counsel’s failure to investigate Doug Mixon’s alibi was deficient

performance that prejudiced Calhoun……………………………….48

B. Counsel’s failure to consult with and hire forensic experts was deficient

performance that prejudiced Calhoun………………………..…………53

1. Counsel’s failure to consult with or hire a forensic pathologist

constitutes deficient performance…………………………..……….53

056

2. Counsel’s failure to consult with or hire a forensic pathologist

prejudiced Calhoun……………………………………...…………..57

3. Counsel’s failure to consult with or hire a digital forensic expert

constitutes deficient performance……………………………...……61

4. Counsel’s failure to consult with or hire a digital forensic expert

prejudiced Calhoun…………………………………………...……..64

C. Counsel’s failure to subject the State’s case to adversarial testing through

investigation, cross-examination, the utilization of available

impeachment evidence and proper objections was deficient performance

that prejudiced Calhoun……………………………………...…………67

1. Counsel’s failure to object to improper testimony constitutes deficient

performance……………………………………………..…………..67

a. Charles Howe…………………………………………….………67

b. Dr.Swindle………………………………...………........………..70

c. Dick Mowbry…………………………………………………….70

2. Counsel’s failure to investigate, effectively cross-examine witnesses

and utilize available impeachment evidence was deficient

performance that prejudiced Calhoun………………….……………72

a. Brandon Brown……………………………..……………………73

b. Sherri Bradley……………………………………………………76

c. Darren Batchelor……………………...………………………… 79

d. Brittany Mixon…………………………….……………………..81

e. Tiffany Brooks…………………………..……………………….83

f. Glenda Brooks……………………………...……………………85

g. Jennifer Roeder……………………………..……………………86

h. Michael Raley………………………………..…………………..87

i. Harvey Glen Bush………………………………………………. 91

057

D. By eliciting harmful evidence in the defense’s case in chief, counsel

rendered deficient performance that prejudiced Calhoun…………..…..92

1. Counsel rendered deficient performance that prejudiced Calhoun by

eliciting harmful evidence from Glenda Brooks………………….…92

2. Counsel rendered deficient performance that prejudiced Calhoun by

eliciting harmful evidence from Michael Raley…………………….94

THE CIRCUIT COURT ABUSED ITS DISCRETION BY NOT

ALLOWING CALHOUN TO AMEND HIS MOTION FOR

POSTCONVICTION RELIEF………………………………………....…. 96

A. Newly discovered evidence regarding Robert Vermillion………….…..96

B. Newly discovered evidence regarding Keith Ellis………………….…..98

VI.

THE STATE VIOLATED CALHOUN’S DUE PROCESS RIGHTS BY

PRESENTING MISLEADING EVIDENCE AND ADVANCING FALSE

AND MISLEADING ARGUMENT IN CONTRAVENTION OF

GIGLIO/NAPUE………………………………………...………………103

VII. THE CIRCUIT COURT VIOLATED CALHOUN’S RIGHT TO DUE

PROCESS WHEN IT ADOPTED THE STATE’S PLEADINGS IN LIEU

OF CONDUCTING AN INDEPENDENT AND IMPARTIAL

ANALYSIS……………………………………………………...…..……107

CONCLUSION AND RELIEF SOUGHT……………………………..………..111

CERTIFICATE OF FONT…………………………………………………..…..112

CERTIFICATE OF SERVICE…………………………………………..………112

058

REQUEST FOR ORAL ARGUMENT

Johnny Mack Sketo Calhoun has been sentenced to death. Resolution of the

issues presented will determine whether he lives or dies . This Court has not

hesitated to allow oral argument in other capital cases in a similar posture. A full

opportunity to address the issues through oral argument would be more than

appropriate, given the seriousness of the claims at issue and the stakes involved .

Calhoun, through counsel, respectfully requests this Court hear oral argument in

this appeal.

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court’s denial of

Calhoun’s motion for post-conviction relief following an evidentiary hearing. The

motion was brought pursuant to Fla. R. Crim. P. 3.851. The following symbols will

be used to designate references to the record in this appeal:

“R.” – record on direct appeal to this Court;

“T.” – trial transcript on direct appeal to this Court;

“PCR.” – postconviction record on appeal to this Court;

“EH.” – evidentiary hearing transcript on appeal to this Court

Additional citations will be self-explanatory.

059

TABLE OF AUTHORITIES

Cases

Aguirre-Jarquin v. State, 202 So. 3d 785 (Fla. 2016)………………………..…..102

Babb v. Edwards, 412 So. 2d 859 (Fla. 1982)………………………………….…21

Ballard v. State, 923 So. 2d 475 (Fla. 2006)……………………………………....33

Barber v. State, 775 So. 2d 258 (Fla. 2000)………………………….……………69

Bell v. State, 965 So. 2d 48 (Fla. 2007)………………………………………...…74

Blake v. State, 180 So. 3d 89 (Fla. 2014)………………………………………….78

Bogle v. State, 213 So. 3d 833 (Fla. 2017)…………………………………….…..47

Bouie v. State, 559 So. 2d 1113 (Fla. 1990) ………………………………………21

Brady v. Maryland 373 U.S. 83 (1963)………………………………...…….passim

Brown v. State, 892 So. 2d 1119 (Fla. 2d DCA 2004)……………………….……56

Bruton v. United States, 391 U.S. 123 (1968). ………………………………...…91

Butler v. State, 100 So. 3d 638 (Fla. 2012)………………………………………..78

Calhoun v. Florida, 135 S. Ct. 236 (2014) ………………………………………...2

Calhoun v. State, 138 So. 3d 350 (Fla. 2013)……………………….………..passim

Cardona v. State, 826 So. 2d 968 (Fla. 2002)………………….…………….……35

Code v. Montgomery, 799 F. 2d 1481 (11th Cir. 1986)……………………..…….41

Commonwealth v. Beasley, 967 A.2d 376 (Pa. 2009)……………………………108

Connor v. State, 979 So. 2d 852 (Fla. 2008)………………………………………78

Cuthbertson v. Biggers Bros., Inc., 702 F. 2d 454 (4th Cir. 1983)………………108

Cuyler v. Sullivan, 446 U.S. 335 (1980) …………………………….……20, 21, 22

Dausch v. State, 141 So. 2d 513 (Fla. 2014)………………………………………33

Davis v. State, 136 So. 3d 1169 (Fla. 2014)…………………………………...…..78

Duckett v. State, 231 So. 3d 393 (Fla. 2017)………………………………...…..103

Eure v. State, 764 So. 2d 798 (Fla. 4th DCA 2000)……………………………….67

060

Ex Parte v. Scott, 2011 WL 925761 (Ala. 2011)………………………………...108

Everett v. State, 54 So. 3d 464 (Fla. 2010)………………………………………..40

Fitzpatrick v. State, 118 So. 3d 737 (Fla. 2013)……………………….……..passim

Gaskin v. State, 822 So. 2d 1243 (Fla. 2002)…………………………………….111

Giglio v. United States………………………………………………...103, 105, 107

Glock v. Moore, 776 So. 2d 243 (Fla. 2001)…………………………….……….109

Grim v. State, 971 So. 2d 85 (Fla. 2007)………………………………………….78

Groover v. State, 640 So. 2d 1077 (Fla. 1994)…………………………………..109

Guzman v. State, 868 So. 2d 498 (Fla. 2003)………………………...……..103, 106

Garcia v. State, 622 So. 2d 1324 (Fla. 1993)…………………………….………..36

Hildwin v. State, 141 So. 3d 1178 (2014) ………………………………...………25

Hodges v. State, 885 So. 2d 338 (Fla. 2004)………………………………………67

Hoffman v. State, 800 So. 2d 174 (Fla. 2001)………………………….………….35

Huff v. State, 622 So. 2d 982 (Fla. 1993) ………………………………...…….2, 97

Hurst v. Florida, 136 S. Ct. 616 (2016) ………………………………...….2, 3, 109

Ingram v. State, 51 So. 3d 1119 (Ala. 2010)……………………………...……..108

Johnson v. State, 117 So. 3d 1238 (Fla. 3d DCA 2013)…………………………..69

Jones v. State, 709 So. 2d 512 (Fla. 1998) ……………………………..…25, 30, 37

Kegler v. State, 712 So. 2d 1167 (Fla. 2d DCA 1998)………………….…………73

Kelly v. State, 198 So. 3d 1077 (Fla. 5th DCA 2016)…………………..…………73

Kilgore v. State, 55 So. 3d 487 (Fla. 2010)……………………………………..…78

Kyles v. Whitley, 514 U.S. 419 (1995)………………………………………...…..35

Kormondy v. State, 983 So. 2d 418 (Fla. 2007)………………………..………….78

Larzelere v. State, 676 So. 2d 394 Fla. 1996) ………………….………..………..22

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999) ……………………..….………30

061

Magill v. Dugger, 824 F. 2d 879 (11th Cir. 1987)……………………..………….80

Moore v. State, 820 So. 2d 199 (Fla. 2002)…………………………………...…..96

Napue v. Illinois, 360 U.S. 264 (1959)…………………………..………………103

Nelson v. State, 123 So. 3d 1195 (Fla. 4th DCA 2012)……………………….….41

Occhicone v. State, 768 So. 2d 1037 (Fla. 2000)………………………….………40

Patton v. State, 784 So. 2d 380 (Fla. 2000)………………………………..…….109

Phillips v. Ficarra, 618 So. 2d 312 (Fla. 4th DCA 1993)……………….………..69

Pritchett v. State, 884 So. 2d 417 (Fla. 2d DCA 2004)………………………….102

Puglisi v. State, 112 So. 3d 1196 (Fla. 2013)…………………………………..….52

Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003)…………………………..102

Reed v. State, 875 So. 2d 415 (Fla. 2004)……………………………….…….59, 60

Rogers v. State, 782 So. 2d 373 (Fla. 2001)……………………….…………..35, 37

Rompilla v. Beard, 545 U.S. 374, 383 (2005)…………………………….……….74

Rose v. State, 675 So. 2d 567 (Fla. 1996)………………………………...……….56

Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1988)…………………….………….67

Sochor v. State, 883 So. 2d 766 (Fla. 2004)…………………………..……….42, 69

Smith v. State, 213 So. 3d 722 (Fla. 2017)………………………………….……..96

Spann v. State, 985 So. 2d 1059 (Fla. 2008)…………………………..…………..78

Spencer v. State, 615 So. 2d 688 (Fla. 1993) …………………………...………….1

State v. Coney, 845 So. 2d 120 (Fla. 2003)………………………………………..19

State v. Gad, 27 So. 3d 768 (Fla. 2d DCA 2010)…………………………....…….31

State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001)………………………...………107

Strickland. Washington, 466 U.S. 668 (1984) ……………………….………passim

State v. Williams, 127 So. 2d 890 (Fla. 1st DCA 2013)……………..…………….69

Strickler v. Greene, 527 U.S. 263 (1999)……………………………………...…..35

062

Swafford v. State, 125 So. 3d 760 (Fla. 2013) ………………………...……..passim

Tanzi v. State, 94 So. 3d 482 (Fla. 2012)………………………………...……96, 97

Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001)……………………….………72

United States v. Campbell, 491 F. 3d 1306 (11th Cir. 2007) ……………………..22

United States v. Agurs, 427 U.S. 97 (1976)……………………………………...103

United States v. Bagley, 473 U.S. 667 (1985)…………………………….………35

United States v. Scheer, 168 F.3d 445 (11th Cir. 1999)…………………………..36

Wiggins v. Smith, 539 U.S. 510 (2003)………………………………….…….40, 42

Williams v. Taylor, 529 U.S. 362 (2000)………………………………………….35

Williams v. Thaler, 864 F. 3d 597 (5th Cir. 2012)…………………….…………..61

Young v. State, 739 So. 2d 553 (Fla. 1999)………………………………………..35

Statutes

Fla. Stat. § 90.401 (2011)……………………………………………………….....71

Fla. Stat. § 90.608 (2011)………………………………………………………….78

Fla. Stat. § 921.141(7) (2011)……………………………………….…………….68

Other Authorities

ABA guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases ………………………………………………………….…..23

Fla. R. Crim. P. 3.112 …………………………………………….…………….…23

Fla. R. Crim. P. 3.851…………………………………….………….………..passim

Rule Regulating the Florida Bar 4-1.7(a)(2)………………………..……………..21

Rule Regulating the Florida Bar 4-1.10…………………………………………...22

063

STATEMENT OF THE CASE AND FACTS

PROCEDURAL HISTORY

The Circuit Court of the Fourteenth Judicial Circuit in and for Holmes County,

Florida entered the judgments of conviction and sentence at issue.

On December 10, 2010, Calhoun was arrested in Bonifay, Florida, four days

after he and the victim, Mia Brown, were reported missing. Calhoun was indicted

for the first-degree murder of Mia Brown on February 18, 2011. The circuit court

appointed the Office of the Public Defender to represent Calhoun.

Calhoun pled not guilty to all charges. (R. 42). Trial commenced on February

20, 2012, merely a year after Calhoun was indicted. (T. 2). On February 28, 2012,

the jury returned a verdict finding Calhoun guilty as charged . (R. 960). The penalty

phase of Calhoun’s trial started on February 29, 2012. (T. 1276).

The jury

recommended death by a vote of 9-3 the same day. (T. 1373). A Spencer1 hearing

was held on August 4, 2012. (T. 1251). The circuit court followed the jury’s

recommendation and sentenced Calhoun to death on May 18, 2012. (T. 1308). This

Court affirmed Calhoun’s convictions and sentence on direct appeal . Calhoun v.

State, 138 So. 3d 350 (Fla. 2013). Relying on the mostly unchallenged evidence of

the State, the Court, applying a special standard of review unique to cases based

wholly on circumstantial evidence, found that the evidence was inconsistent with

Spencer v. State, 615 So. 2d 688 (Fla. 1993).

064

Calhoun’s hypothesis of innocence that another individual committed the murder .

Id. at 367. Calhoun filed a Petition for Writ of Certiorari in the United States

Supreme Court, which was denied on October 6, 2014. Calhoun v. Florida, 135 S.

Ct. 236 (2014).

Calhoun filed his Motion to Vacate Judgments of Conviction and Sentence

with Special Request for Leave to Amend pursuant to Fla. R. Crim. P. on September

25, 2015. (PCR. 460).2 The State filed its response on November 24, 2015. (PCR.

1138). The circuit court held a Huff3 hearing on April 21, 2016. (PCR. 3928).

Following the Huff hearing, the circuit court issued an order, granting Calhoun an

evidentiary hearing on some issues and denying a hearing on the remaining issues .

(PCR. 1343).

An evidentiary hearing commenced on September 15, 2017, and continued on

September 19 and 20. On November 1, 2017, Calhoun filed a sixth Motion to

Amend, seeking to amend with a claim of newly discovered evidence. (PCR. 2418).

Calhoun filed the following Motions to Amend: (1) February 11, 2016 Motion to

Amend with a claim premised upon Hurst v. Florida, 136 S. Ct. 616 (2016) (PCR.

1138); (2) August 16, 2016 Motion to Amend with a claim based on a conflict of

interest (PCR. 1378); (3) May 22, 2017 Motion to Amend with an additional claim

of ineffective assistance of counsel (PCR. 1535); (4) June 22, 2017 Motion to

Amend seeking to add one claim based on a Brady v. Maryland, 83 S. Ct. 1194

(1963)violation and a second claim based on newly discovered evidence (PCR.

1845); (5) September 1, 2017 Motion to Amend with a claim based on newly

discovered evidence. (PCR. 2003).

Huff v. State, 495 So. 2d 145 (Fla. 1986).

065

Calhoun also sought to reopen the evidentiary hearing to present evidence related to

the claim. The circuit court filed an order denying relief on all claims on January 3,

2018. (PCR. 2557).

II.

CALHOUN’S TRIAL4

A. The murder of Mia Brown

In December of 2010, Mia Brown worked as a clerk at Charlie’s Deli in

Esto, Florida. (T. 545). On the afternoon of December 16, 2010, Harvey Glen Bush

was at Charlie’s, talking to Mia. According to Bush, Calhoun arrived around 1:30

p.m., interrupting his conversation with Mia to ask her for a ride later that evening,

which she agreed to provide. (T. 593-94). Jerry Gammons testified that on the

evening of December 16, around 8:40 p.m., a young lady in a light-colored car

knocked on his door looking for Calhoun’s residence . (T. 606; 612). This was the

last time she was seen alive. Four days later, her burned car was found in the woods

in Alabama, with her remains in the trunk.

B. The State’s case

The State’s theory was that after asking Mia Brown for a ride in broad

daylight and in front of witnesses, Calhoun proceeded to kidnap and murder her. The

State did not introduce any evidence of a motive. The State told the jury that, “We

The circuit court granted Calhoun a new penalty phase pursuant to Hurst v. State,

202 So. 3d 40 (Fla. 2016). Accordingly, Calhoun’s recitation of the facts and

argument are all focused on the guilt phase of his capital trial.

066

can’t know what happened that night; the evidence doesn’t tell us.” (T. 1151).

Motive aside, the State did not introduce any direct evidence implicating Calhoun,

either in the form of an eyewitness testimony, an admission, or otherwise .

The State opened its case by establishing that Mia Brown was a sweet and

pretty girl. Bush was the only witness who testified to actually seeing Calhoun and

Mia together, twelve hours before they both went missing . (T. 595). The State put

on the testimony of Jerry Gammons to place Mia in the vicinity of Calhoun’s trailer

that evening. No witnesses placed Mia Brown inside Calhoun’s trailer.

To place Mia inside Calhoun’s trailer the State relied upon DNA evidence and

a photograph found on an SD card belonging to Brown . Trevor Seifret, a crime

laboratory analyst with the Florida Department of Law Enforcement (FDLE)

testified regarding the DNA evidence collected from Calhoun’s trailer . (T. 862).

Seifret testified that there was no way to establish when DNA is deposited on an

item, nor is there any way to establish how long DNA has been on an item. (T. 89293). Seifret also testified there is no way to establish where an item was located

when the DNA in question was deposited on it. (T. 893).

Seifret testified that, through known samples, he was able to develop DNA

profiles for Brittany Mixon, Calhoun, and Mia Brown.5 Seifret testified that Mia

Seifret was also able to develop a DNA profile for Doug Mixon through a buccal

swab taken by law enforcement. (EH. 174). Mixon was included as a possible

contributor to the DNA mixture found on State’s exhibit 21-X, a pink shirt that

067

Brown’s DNA was on a duct tape roll and a quilt found inside Calhoun’s trailer .6

Both tested positive during presumptive testing for the presence of blood . (T. 870,

876). Mia Brown’s DNA was found on roughly eight hairs found on various pieces

of clothing taken from Calhoun’s trailer. (T. 881, 883, 885, 887, 890). Seifret

testified that there is no way to establish the force necessary to remove a hair that

still contained DNA from a person’s head. (T. 895). The State did not call any

witnesses to established that that duct tape belonged to Calhoun, or that Mia Brown’s

DNA was deposited on it while she was inside Calhoun’s trailer . No witnesses

testified that Mia Brown’s hair was actually pulled out of her hair, or pulled out by

Calhoun on the night of December 16, 2010. The DNA evidence was the only

evidence the State introduced to put Calhoun and Mia Brown together, and to

support its theory that Brown made it inside Calhoun’s trailer, where a violent

struggle then ensued.

The State presented a photograph taken from an SD card belonging to Mia

Brown. (T. 937). The lead investigator, Lt. Raley testified that he located the SD

card during a search of Calhoun’s trailer. By the time the SD card was seized, at

also yielded four hairs belonging to Mia Brown. (T. 886-87; EH. 176) The jury

remained unaware of this fact throughout trial.

Calhoun was included as a possible minor contributor to the mixture found on the

roll of duct tape. (T. 872). Seifret also testified that there was a possible third

contributor.

068

least four people had been inside Calhoun’s trailer, if not more. (T. 628, 1011, 1013,

1018)7. None of those four people reported seeing an SD card.

After seizing the SD card, Lt. Raley placed it in his laptop and accessed the

photographs. (T. 936). At trial. Lt. Raley testified, without objection, that the

photograph in question was of the ceiling of Calhoun’s trailer. (T. 937). The State

then called FDLE analyst Jennifer Roeder, who worked in the digital evidence

section as a crime laboratory analyst. (T. 915). Roeder, using a known photograph

also taken from the SD card, opined that the photograph purported to be of Calhoun’s

trailer was taken on December 17, 2010, between 3:30 and 4:00 a.m. (T. 921). This

evidence, which helped form the basis of the State’s timeline, went unchallenged by

the defense.

Mia Brown’s car and body were both found in Alabama . No witnesses

testified to seeing Calhoun in Alabama with Mia. The State called Sherry Bradley,

a clerk who worked at a convenience store near Hartford, Alabama. Bradley testified

that on the morning of December 17, 2010, Calhoun came into her store to buy a

pack of cigarettes. She testified that he was covered in scratches and dried blood,

and that he was driving a white car with Florida plates. (T. 649, 651-52).8 The State

John Sketo, Terry Ellenburg, Brittany Mixon and Deputy Chuck White, in that

order, all made entry into Calhoun’s trailer before Lt. Raley seized the SD card.

Bradley provided this information to law enforcement on December 29, 2010,

over a week after Calhoun’s arrest and after she saw the missing persons flier and

read about the case in the newspaper. (EH. 107-108; EH. Exhibit 12).

069

also presented Darren Batchelor, who testified that he too saw Calhoun at the

convenience store on the morning of December 17. (T. 677). Batchelor claimed to

know Calhoun from school, despite the fact that Batchelor was 12 years older than

Calhoun. (T. 677).9

The State put on Tiffany Brooks and Glenda Brooks, a mother and daughter

who lived in Alabama. Tiffany testified that on the morning of December 18, 2010,

she found Calhoun sleeping in her family’s shed. (T. 780). She also testified, without

objection, that she received a telephone call from her boyfriend, Steven Bledsoe,

who informed her that Calhoun was featured in a missing persons flier, along with

Mia Brown. (T. 784) The State then elicited from Tiffany that Calhoun claimed to

not know who Mia Brown was. (T. 784). Glenda Brooks testified to nearly the same

thing as Tiffany, including Bledsoe’s telephone call and Calhoun’s response .

Counsel lodged no hearsay objections, and the State went on to argue that this was

evidence of Calhoun’s consciousness of guilt. (T. 1158-60).

Calhoun was arrested on December 20, 2010, after he was located in his trailer

by Officer Harry Hamilton. (T. 928). After he was taken into custody, he was

subjected to an interrogation by Ofc. Hamilton and Lt. Raley. (T. 952). It was during

this interrogation that Calhoun told law enforcement, “[Y]’all was tightening up the

The jury never knew about the vast age difference between Batchelor and

Calhoun, which would have placed Calhoun in kindergarten while Batchelor was a

senior in high school. (EH. 113).

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noose last night [December 19, 2010] when I was in the woods man” and “I’d say

more than three times a deputy could have reached out and done like that .” (EH.

Exhibit 5). Lt. Raley asked Calhoun where he was when this happened, to which

Calhoun responded that he was “Down there, close to the Bethlehem Campground .”

(EH. Exhibit 5). However, this is not what the jury heard. The State elicited a

handful of lines from Calhoun’s and objected to the entire interrogation being

entered into evidence. Lt. Raley testified that Calhoun confessed to evading and

hiding from law enforcement. (T. 955). Lt. Raley also testified that Calhoun “leaned

over and he made the statement that there were three times that he was close enough

to (tapping on desk) he tapped the side of my leg with his foot.” (T. 955). Calhoun’s

counsel did not clarify when and where Calhoun said this occurred during crossexamination. Without that clarification, the State argued in closing that Calhoun

confessed to being in the woods with law enforcement the afternoon of December

17, 2010, close to Mia Brown’s car, hours after it was set on fire. (T. 1210-11).

Additionally, the State also presented two witnesses who testified to seeing

smoke in Alabama on December 17, 2010, during the late morning hours . (T. 752,

759). The State argued that the smoke these witnesses spotted was from Mia

Brown’s burning car. The State did not introduce any other evidence to link the

smoke these witnesses saw with Brown’s burning car.

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The State relied on the above-mentioned witnesses, as well as several law

enforcement witnesses who conducted various searches and seizures, to prove its

case. The State did not present the jury with a motive, nor did it present the jury

with an admission or any direct evidence to tie Calhoun to Mia Brown’s murder .

C. The Defense’s case

Calhoun was represented by the Office of the Public Defender for the

Fourteenth Judicial Circuit. At the time of appointment, Walter Smith was the de

facto chief of capital, yet Kimberly Jewell was assigned to Calhoun’s case. (EH. 12).

At trial, Calhoun called ten witnesses in his defense, two of which were state

witnesses that counsel re-called in the defense’s case. Through these witnesses,

Calhoun presented evidence that there were suspicious activities at the junkyard

where Calhoun lived on the evening of December 16 and the early morning hours of

December 17, 2010. Three neighbors testified to hearing loud noises coming from

the junkyard. (T. 992, 996, 998). One of these neighbors, Darlene Madden, testified

that the noise sounded like “a car wreck.” (T. 999).

Calhoun’s father, John Sketo, testified that there was evidence of foul play at

the junkyard when he arrived to work on the morning of December 17, 2010 .10

According to Sketo, the door to Calhoun’s trailer was wide open, as was the door to

Terry Ellenburg, John Sketo’s nephew and business partner, testified to similar

information. (T. 1049).

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a truck parked in front of the trailer. (T. 1006-07). It appeared that somebody had

thrown the contents of the truck on the ground . (T. 1007). The junkyard’s Bobcat

had been hotwired and moved, and there were suspicious tire tracks that indicated a

vehicle had been pushed off the loading dock. (T. 1010). When he inspected the

inside of Calhoun’s trailer it looked like it had been ransacked. (T. 1011). Sketo then

testified that as he was waiting for law enforcement to arrive, Brittany Mixon

showed up. (T. 1016). Despite telling Brittany not to go into the trailer because it

had been burglarized, she went in and remained inside for a minute or two . (T. 1019).

After emerging from the trailer, Brittany grabbed a puppy, threw it in the back of her

truck, and left. (T. 1020).

After Brittany left, Deputy White arrived. (T. 1022). Sketo asked Deputy

White to take fingerprints from the Bobcat, which he failed to do . (T. 1023). Sketo

then took Deputy White into Calhoun’s small trailer and noticed for the first time, a

shotgun. (T. 1026). Sketo testified that the shotgun was not in the trailer before

Brittany went inside. (T. 1026).

Counsel then called Glenda Brooks, who had already testified during the

State’s case in chief. During the defense’s case, counsel elicited from Brooks that

after she heard about the missing persons flier, she became uncomfortable with

Calhoun being in the house, so she asked him to leave. (T. 1076). Counsel also called

Lt. Raley, who had already testified twice during the State’s case in chief . Counsel

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elicited from Lt Raley that a piece of a tag bracket and a piece of cardboard with an

oil stain was found at a property in Alabama owned by Calhoun’s family. (T. 108384). The property where he found the tag bracket was between Calhoun’s trailer and

the site where Mia Brown’s car was burned. (T. 1090). Lt. Raley went on to testify

that Mia Brown’s family told him the tag bracket was consistent with the one located

on Brown’s car, and that her car had an oil leak.

At no point during the Defense’s case did counsel call Doug Mixon or

anybody related to Doug Mixon’s alibi.

III.

The Evidentiary Hearing

A. Newly discovered evidence implicates Doug Mixon as a viable

suspect

At Calhoun’s evidentiary hearing, numerous witnesses testified to actions and

statements of Doug Mixon, which tend to implicate him in the murder of Mia Brown.

Natasha Simmons testified to a suspicious encounter she had with Mixon during the

time surrounding Mia Brown’s murder. (EH. 328). According to Simmons, she

picked up Mixon and her ex-boyfriend, Charley Utley, close to the Florida-Alabama

line. When she arrived, Mixon came running to the car, shirtless, covered in blood,

with an empty gas jug in hand. (EH. 328). Mixon appeared agitated and kept

repeating “That goddamn Gabby” as she drove the men to Geneva, Alabama, per

their demand. (PCR. 2439; EH. 329).

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Additionally, Robert Vermillion, a cousin of Brandon Brown, testified to

statements made by Mixon in July of 2016. (EH. 362). According to Vermillion,

Mixon told him “I know I’ve done a lot of things I’m not proud of” and asked

Vermillion to forgive him. (EH. 362). Assuming Mixon’s statement to be related to

Mixon’s involvement in Mia Brown’s murder, Vermillion told Mixon that he could

not forgive him for anything, instead directing him to seek forgiveness from Brandon

Brown. (EH. 362). Mixon did not respond, but grew hysterical. (EH. 364). Mixon

then suffered from a heart attack and was removed from the house via ambulance, a

fact that Mixon himself confirmed at the evidentiary hearing. (EH. 310-11).

B. Doug Mixon’s alibi has been conclusively refuted and his alleged

alibi witness says Mixon confessed to murdering Mia Brown

Jose Contreras served as Doug Mixon’s alibi when he was questioned by

law enforcement as to his whereabouts during the time period surrounding Mia

Brown’s disappearance and murder. (EH. Exhibit 12). According to Mixon, he was

with his girlfriend, Gabby Faulk, at Contreras’ house in Alabama the night Mia

Brown disappeared. (EH. Exhibit 12).

Contreras testified at Calhoun’s evidentiary hearing. Contreras was adamant

that Doug Mixon was not with him the night Mia Brown went missing, nor has

Mixon ever spent the night at Contreras’ house. (EH. 342, 343). What’s more,

Contreras testified that Mixon actually confessed to him that he was responsible for

Mia Brown’s murder. (EH. 345). Counsel testified that she never investigated

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Mixon’s alibi, though her strategy was to blame the murder on Doug Mixon . (EH.

54; 170-72; 216; 221; 289-91).

C. Expert witnesses have cast doubt on the veracity of the State’s

evidence and arguments

At trial, the State highlighted the scratches found on Calhoun’s body

and argued to the jury that they were fingernail scratches, inflicted by Mia Brown

while she was fighting for her life. (T. 1168, 1153). Counsel told the jury the

scratches were caused by briars, an argument the State easily cast aside.

At his evidentiary hearing, Calhoun presented the testimony of Dr . Edward

Willey, a forensic pathologist. Dr. Willey testified as to the specific characteristics

generally associated with fingernail scratches. (EH. 245, 247, 260). After reviewing

a number of photographs provided to him by Calhoun, and utilizing his computer to

enhance those photographs, Dr. Willey was able to opine that it was not at all

probable that any of the scratches were caused by fingernails. (EH. 249-256). What’s

more, Dr. Willey testified a briar patch was a perfectly reasonable explanation of

how Calhoun obtained the scratches. (EH. 257).

Calhoun also presented the testimony of John Sawicki, an expert in digital

forensic evidence to discuss the SD card taken into evidence and the calculation that

stemmed from photographs discovered on it. Sawicki testified that by improperly

accessing the SD card, Lt. Raley altered the metadata of the photographs. (EH. 380).

According to Sawicki, this was problematic because the metadata in Calhoun’s case

076

was “critical”. (EH. 379). Sawicki went on to testify that Lt. Raley’s alteration of

the evidence affected the calculation method employed by the State, which it used

to argue that Mia Brown was inside Calhoun’s trailer on December 17, 2010, in the

early morning hours.

D. Trial counsel was unable to articulate strategic reasons or a

strategy based on sound, professional judgment, for most of the

alleged errors and omissions

During the evidentiary hearing, counsel addressed Calhoun’s allegations that

she was deficient in her performance. In many instances, counsel was unable to

articulate a strategy for why she failed to take certain actions or why she chose to

pursue the actions she did take. (EH. 156; 170-71, 184-85). In some instances,

counsel conceded that she probably should have taken the course of action Calhoun

alleged she failed to do. (EH. 105, 115, 132, 135, 176).

In other instances, counsel advanced a strategic reason for her actions . (EH.

57-60; 73; 84; 138; 145; 148-152; 177-78).

In each instance where counsel

articulated a strategic reason, the circuit court’s order does not contain any analysis

of whether counsel’s decision was based on sound, professional judgment.

IV.

The circuit court’s denial of relief

On January 3, 2018, the circuit court entered an order denying Calhoun’s

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postconviction motion in its entirety. The bulk of the circuit court’s order, including

its purported findings, was copied and pasted directly from the State’s various

answers and its written closing argument.

SUMMARY OF THE ARGUMENT

ARGUMENT I: Calhoun was deprived of his fundamental right to conflictfree counsel. During the course of his case, trial counsel was paired with Attorney

Henry Mark Sims, and the two comprised the capital division of the Office of the

Public Defender for the Fourteenth Judicial Circuit. Sims had a longstanding

personal relationship with the victim, Mia Brown, and her family. Due to this

relationship, Sims determined a conflict of interest was present and did not

participate in Calhoun’s defense. Trial counsel, who was only minimally qualified

to serve as lead counsel, did not advise Calhoun or the circuit court of the conflict of

interest within the Public Defender’s Office, and chose to proceed with her

representation of Calhoun. Calhoun was assigned a second chair attorney who had

been a member of the Florida Bar for less than two years, had only handled

misdemeanor cases, and had never received any training geared towards the defense

of capital cases. The circuit court erred finding Calhoun was not denied his Sixth

Amendment right to counsel due to a conflict of interest on the part of the Public

Defender’s Office. The circuit court incorrectly found that no conflict of interest

existed, ignoring the facts and well-established law holding otherwise.

078

ARGUMENT 2: Newly discovered evidence implicates Doug Mixon in the

death of Mia Brown. Mixon was investigated by law enforcement during the search

for Mia Brown and trial counsel firmly believed him to be a viable alternate suspect,

so much so that her defense was to blame the murder on Mixon. Calhoun has

discovered that Mixon was seen running with a gas can, bloody and agitated, close

in time to when Mia Brown was burned in the trunk of her car with the use of an

accelerant. Calhoun has also discovered evidence that Mixon has made admissions

that he was responsible for the murder. When all of these new facts, together with

all of the evidence that could be presented at a new trial, are weighed against the

State’s circumstantial evidence case, the “total picture” is so different that there is a

reasonable doubt as to Calhoun’s guilt.

ARGUMENT 3: In violation of Brady, the State suppressed exculpatory

information that a witness, Natasha Simmons, informed the Sheriff of Geneva

County, Greg Ward, that she had seen Mixon running with a gas can, bloody and

agitated, close in time to when Mia Brown was burned in the trunk of her car with

the use of an accelerant. Brown’s body was found in Geneva County and the Geneva

County Sheriff’s Office was actively involved in the investigation of her death.

Simmons’ statement was never disclosed to Calhoun’s defense team. Had Calhoun

been aware of her suspicious encounter with Mixon, he could have used it to cast

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doubt on his guilt and strengthen his defense at trial that Doug Mixon was

responsible for the death of Mia Brown.

ARGUMENT 4: Calhoun’s lawyer failed to provide effective assistance of

counsel at the guilt phase of his capital trial. Calhoun was able to establish a

pervasiveness of deficient performance on the part of counsel. Counsel failed to

conduct a competent, reasonable investigation into Calhoun’s case. Counsel’s

strategy was to imply Doug Mixon was responsible for the murder of Mia Brown,

yet counsel took no steps to investigate Mixon’s alibi. The vast majority of the

State’s witnesses had problems inherent in their testimony that went unchallenged.

Counsel failed to utilize available impeachment material, failed to object to

impermissible, inflammatory, and prejudicial testimony and evidence, elicited

damaging testimony in her own case-in-chief and failed to clarify misleading

testimony and false argument. Counsel also neglected to hire or consult with any

experts to challenge the State’s forensic evidence. Effectively, the State’s case was

not subjected to any adversarial testing.

Had counsel subjected the State’s case to a true adversarial testing as required

by the United States Constitution, she would have been able to raise substantial and

reasonable doubt as to Calhoun’s guilt. Counsel’s errors and omissions undermine

the confidence in the outcome and independently warrant a new trial.

The

cumulative effect of the multiple instances of ineffective assistance of counsel

080

demonstrate a breakdown in the adversarial process and render the result of

Calhoun’s trial unreliable.

ARGUMENT 5: The trial court abused its discretion when it denied two

Motions to Amend Calhoun’s postconviction motion with claims of newly

discovered evidence. In addition to attaching affidavits to both Motions to Amend,

Calhoun also alleged the facts with specificity and detailed why relief was

warranted. This is not a case where the facts asserted in either amended motion were

vague and nonspecific, nor were they readily available to counsel at the time

Calhoun’s initial 3.851 motion was filed, or even at the time that the evidentiary

hearing was conducted. This Court should remand this issue back to the circuit court

for a full and fair evidentiary hearing on the matter.

ARGUMENT 6: The State committed a Giglio violation by eliciting

misleading testimony from the lead investigator regarding what Calhoun said during

his interrogation with police. The State then took that misleading testimony and

falsely argued in closing that Calhoun confessed to being in the woods, right by Mia

Brown’s car, within hours of it being burned. The circuit court erroneously found

that the State did not knowingly present false information to the jury, but rather

“merely implied it incorrectly.” Implying something you know to be false and

explicitly stating something you know to be false are one and the same. The circuit

court further erred in shifting the burden to Calhoun to prove the false testimony was

081

material, when it is the State’s burden to show that the false evidence was harmless

beyond a reasonable doubt. When the proper materiality analysis is conducted, it is

clear that Calhoun’s conviction cannot stand.

ARGUMENT 7: The circuit court violated Calhoun’s right to due process

when it adopted nearly verbatim the State’s written responses and closing argument

in crafting its order denying relief. The circuit court’s order cannot be viewed as the

product of an independent, impartial and reasoned decision, and it should not be

given any deference by this Court.

ARGUMENT

CALHOUN WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT

TO EFFECTIVE COUNSEL AND A FAIR TRIAL DUE TO

COUNSEL’S ACTIVE CONFLICT OF INTEREST.

The trial court erred in denying Calhoun’s claim that he was deprived of his

fundamental right to counsel and a fair trial due to defense counsel’s conflict of

interest.11

At the time of appointment, the Public Defender’s Office was in a period of

transition. (EH. 22). During the course of Calhoun’s case, Walter Smith left the

office and Henry Mark Sims joined. (EH. 12-13). Sims, a former prosecutor, had

This issues presents a mixed question of law and fact. When reviewing such

questions, the ultimate ruling must be subject to de novo review but the court’s

factual findings must be sustained if supported by competent, substantial evidence .

See State v. Coney, 845 So. 2d 120 (Fla. 2003).

082

extensive trial experience, including experience handling capital cases. (EH. 13).

Sims was paired with Jewell to work on the office’s capital cases together. (EH. 13,

22).

Despite his extensive experience, Sims was not assigned to work on

Calhoun’s case with Jewell due to his longstanding personal relationship with Mia

Brown and her family. (EH. 22-23, 212, 274). Sims’ conflict of interest was brought

to the attention of Herman Laramore, the elected Public Defender for the Fourteenth

Judicial Circuit, who ultimately made the decision not to withdraw from Calhoun’s

case. (EH. 25-26).

Kevin Carlisle was then assigned as the second chair on Calhoun’s case. (EH.

23, 29, 37). At the time of trial, Carlisle had been admitted to the bar for less than

two years and was assigned to county court, where he handled misdemeanor cases.

(EH. 211). He had never handled a homicide case, let alone a capital murder case,

nor had he attended any Continuing Legal Education (CLE) courses geared towards

the defense of capital cases. (EH. 211).

The right to effective assistance of counsel encompasses the right to be free

from actual conflict. See, Strickland. Washington, 466 U.S. 668 (1984); Cuyler v.

Sullivan, 446 U.S. 335, 349 (1980). “Defense counsel have an ethical obligation to

avoid conflicting representation and to advise the court promptly when a conflict of

083

interest arsis during the course of the [proceedings].” Cuyler at 335; see also, Florida

Rules of Professional Conduct 4-1.7.

In order to show a Sixth Amendment violation, a defendant who raised no

objection at trial must demonstrate an actual conflict of interest affected his lawyer’s

representation. A defendant who shows a conflict of interest affected the adequacy

of representation need not demonstrate prejudice in order to obtain relief . Cuyler at

350.

“As a general rule, a public defender’s office is the functional equivalent of a

law firm. Different attorneys in the same public defender’s office cannot represent

defendants with conflicting interests.” Bouie v. State, 559 So. 2d 1113, 1115 (Fla.

1990). Additionally, public defenders within the same circuit cannot be appointed

to represent adverse defendants, regardless of the location of their offices . Babb v.

Edwards, 412 So. 2d 859, 862 (Fla. 1982). The prohibition against representing a

client while laboring under a conflict of interest extends to conflicts of interest due

to witnesses, parties, or the personal interests of the lawyer. Rule 4-1.7(a)(2) of the

Rules Regulating the Florida Bar states that a lawyer must not represent a client if

“there is a substantial risk that the representation of 1 or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client,

or a third person or by a personal interest of the lawyer.” (emphasis supplied). When

a lawyer is a member of a firm, a conflict for one lawyer is imputed to all the lawyers

084

in the firm. See, Rules Regulating the Florida Bar: Rule 4-1.10; U.S. v. Campbell,

491 F. 3d 1306, 1311 (11th Cir. 2007)(“if one attorney in a firm has an actual conflict

of interest, we impute that conflict to all the attorneys in the firm, subjecting the

entire firm to disqualification.”).

Sims clearly had a conflict of interest due to his longstanding relationship with

Mia Brown and her family. Because he was employed by the Office of the Public

Defender for the Fourteenth Judicial Circuit, his conflict of interest was imputed to

all of the lawyers within the office, including Jewell.

A defendant can waive his fundamental right to conflict free counsel . For a

waiver to be valid, the record must show that the defendant was aware of the conflict

of interest, that the defendant realized the conflict could affect the defense, and that

the defendant knew of the right to obtain other counsel. Larzelere v. State, 676 So.

2d 394, 403 (Fla. 1996). It is axiomatic that in order to waive a conflict, the

defendant must first be aware that it exists. Calhoun was not. (EH.28). Jewell failed

to disclose the conflict of interest to him and never obtained the required informed

consent to continue her representation. Jewell also failed to advise the circuit court

that a conflict of interest had arisen, despite and ethical obligation to do so . Cuyler

at 346. As a result, Calhoun was unknowingly represented by a lawyer laboring

under an actual conflict of interest.

085

The conflict of interest materially limited the representation Calhoun received

and adversely affected the performance of his trial counsel . Due to the conflict,

Calhoun was denied effective representation by two qualified lawyers, as

contemplated by Fla. R. Crim. P. 3.112, as well as the ABA guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases.

When Jewell was assigned to Calhoun’s case, it was only the second time she

served as lead counsel in a capital case. (EH. 12). During her first capital case as

lead counsel, she had the benefit of Walter Smith serving as her second chair . (EH.

12). After Smith left the office, Jewell and Sims were the only lawyers with capital

experience. (EH. 28). Due to Sims’ longstanding personal relationship with Mia

Brown and her family, he was prohibited from working on Calhoun’s case, meaning

Jewell was unable to consult with Sims on matters of strategy, theories of defense,

and evidentiary issues, and also left her unable to anticipate strategies employed by

the State, as evidenced by her being caught off guard when the State cherry-picked

parts of Calhoun’s statement. Sims’ conflict and subsequent recusal led to Carlisle,

a county court attorney with less than two years of experience, joining the defense

team as the second chair. Carlisle’s role was so limited that he considered himself

to be more of a “bag holder” than a second chair . (EH. 214). In fact, Carlisle’s role

was so minuscule that Earnest Jordan, the lead investigation on the case, did not even

know Carlisle was a member of the defense team. (EH. 273).

086

The circuit court’s order denying relief misapprehends the law regarding

conflicts of interest.12 The circuit court posits that because Sims did not participate

in Calhoun’s case, his “personal interest” did not become a conflict . (PCR. 2600).

The court completely ignores the fact that Sims’ “personal interest”, i .e. Sims’

longstanding relationship with Mia Brown and her family, was in and of itself the

conflict. The circuit court also ignored well-established precedent and the Florida

Bar Rules which hold that when a lawyer is a member of a firm, a conflict for one

lawyer is imputed to all the lawyers in the firm.

Due to the Public Defender’s undisclosed conflict of interest, Calhoun was

represented by only one minimally qualified lawyer .

The conflict hampered

counsel’s ability to zealously advocate for Calhoun, effectively investigate, prepare,

test the evidence, and present a cohesive and sound defense. By demonstrating that

an actual conflict of interest existed and that it adversely affected his representation,

Calhoun has proven that his Sixth Amendment right to effective representation has

been violated. Relief in the form of a new trial is required.

II.

NEWLY DISCOVERED EVIDENCE REGARDING DOUG MIXON

SO WEAKENS THE CASE AGAINST CALHOUN THAT IT

CREATES A REASONABLE DOUBT AS TO HIS GUILT.

The relevant portion of the circuit court’s order was not written by the circuit

court at all. Rather, with the exception of two paragraphs, it is taken verbatim from

the State’s closing argument. (PCR. 2483-2487)

087

Two requirements must be met in order to set aside a conviction or sentence

because of newly discovered evidence. See, Hildwin v. State, 141 So. 3d 1178, 1184

(2014), citing Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). First, the evidence

must not have been known by the trial court, the party, or counsel at the time of trial,

and it must appear that the defendant or his counsel could not have known of it by

the use of due diligence. Second, the newly discovered evidence must be of such a

nature that it would probably produce an acquittal on retrial. Id. “Newly discovered

evidence satisfies the second prong of the Jones test if it ‘weakens the case against

[the defendant] so as it give rise to a reasonable doubt as to his culpability’ .” Id.,

citing Jones, 709 So. 2d at 526.

“[T]he postconviction court must consider the effect of the newly discovered

evidence, in additional to all of the admissible evidence that could be introduced at

a new trial.” Hildwin, 141 So. 2d at 1184, citing Swafford v. State, 125 So. 3d 760,

775-76 (Fla. 2013). “In determining the impact of the newly discovered evidence,

the court must conduct a cumulative analysis of all the evidence so there is a ‘total

picture’ of the case and ‘all the circumstances of the case’.” Id.13

For claims based on newly discovered evidence, this Court reviews a court

court’s findings of fact, credibility determinations, and the conclusions about the

weight of the evidence to determine whether they are supported by competent,

substantial evidence. See Swafford v. State, 125 So. 3d 760 (Fla. 2013). Legal

conclusions and application of law to those facts are reviewed de novo. See Id.

088

A. The Newly Discovered Evidence14

1. Natasha Simmons

Natasha Simmons testified at the evidentiary hearing that either the morning

before or the morning after she heard of Mia Brown’s disappearance, she received a

telephone call from her ex-boyfriend, Charley Utley. Utley told her that he and a

friend ran out of gas near Bonifay, Florida and requested that she come and pick

them up. (EH. 323-27, 330, 333). When she arrived at the location Utley directed

her to, she saw Utley and another man running towards her car from the north, gas

jug in hand. (EH. 328). Both men got into Simmons’ car and the other man

introduced himself as Doug Mixon. (EH. 328). Mixon was shirtless and had blood

all over his chest. (EH. 328). Utley was wearing a white tank top and had scratches

on his shoulder with a blood smear. (EH. 328).

As Simmons went to pull into a gas station to get the men gas, they told her

to keep driving and to take them to Geneva, Alabama . (EH. 329). Simmons

Following the evidentiary hearing in this case, Calhoun discovered additional

evidence of another confession by Doug Mixon. He filed a motion, seeking to

amend his postconviction motion and reopen the evidentiary hearing on November

1, 2017, which was denied by the circuit court. (PCR. 2418, 2437). The crux of the

new claim is that Doug Mixon confessed to an inmate named Keith Ellis at the

Graceville Correctional Facility. Mixon claimed that he killed Mia Brown because

she was “messing around” with his daughter’s boyfriend. Ellis also provided new

information that Doug Mixon admitted to framing Calhoun for Mia Brown’s

murder. (PCR. 2424-2429). The denial of his motion to amend is addressed in

Claim V, infra.

089

described Utley as frantic. (EH. 329). Mixon was calm in comparison, but kept

repeating “That goddamn Gabby, that goddamn Gabby.” (PCR. 2439).

Simmons

drove Utley and Mixon to an apartment complex in Geneva, where they got out of

the car, taking a large empty gas can with them. (EH. 334).

Simmons could not be sure whether she heard a news report about Mia

Brown’s disappearance before or after this encounter with Mixon and Utley, but was

confident it occurred in the timeframe surrounding her disappearance . (EH. 330).

Simmons testified that at first, she did not have any inclination that her suspicious

encounter with Mixon and Utley was related to Mia Brown’s disappearance in

anyway. (EH. 330-31). It was only later, after speaking with a friend, did she connect

the dots. (EH. 331). Simmons then went to the Geneva County Sheriff’s Office

where she spoke with Sheriff Greg Ward. (EH. 331). When she told him about her

suspicious encounter with Mixon and Utley, Sheriff Ward told her that she was

wasting her time because the “killer was already locked up .” (EH. 331). Based on

Sheriff Ward’s representations that the guilty party was behind bars, Simmons

concluded that her strange encounter with Mixon was not related to the murder of

Mia Brown and let the issue go. Calhoun’s trial counsel was never provided with

this information. Simmons was not approached by anyone to discuss her run in with

Mixon until Calhoun’s postconviction team interviewed her in the spring of 2017.

090

That the evidence regarding Simmons’ suspicious encounter with Mixon is

newly discovered cannot be in dispute. Simmons’ name does not appear anywhere

in the pretrial discovery. She did not testify at trial, nor was her name mentioned at

trial. The circuit court denied relief, and without any explanation or legal analysis,

concluded that the evidence from Simmons “should be evaluated under the Brady

test.” (PCR. 2607, 2494-96). However, because the circuit court found that the State

did not possess or suppress the information regarding Simmons, it must then be

considered as newly discovered evidence.

2. Robert Vermillion15

Robert Vermillion testified at Calhoun’s evidentiary hearing that he and

Brandon Brown, Mia Brown’s husband, are cousins. (EH. 356). Vermillion and

Brown grew up together, much like brothers. (EH. 356). Vermillion had gone to

school with Mia Brown, and when she married Brandon, he came to consider Mia

Due to rulings of the circuit court, Calhoun’s claim regarding the newly

discovered evidence of Robert Vermillion finds itself in an odd procedural posture.

Calhoun filed a Motion to Amend his postconviction motion with this claim on

September 1, 2017. (PCR. 1979). The circuit court denied Calhoun’s Motion to

Amend, however allowed Calhoun to present the testimony of Vermillion at his

evidentiary hearing. (EH. 6, 355). The denial of Calhoun’s Motion to Amend is

addressed in Claim V, infra. However, because the evidence regarding Vermillion

was both presented at the evidentiary hearing and analyzed as newly discovered

evidence by the circuit court, in the interests of judicial economy, Calhoun

addresses the merits of the issue in this brief.

091

as family, too. (EH. 356). Sometime after Mia Brown was killed, Vermillion came

to believe that Doug Mixon was the one responsible. (EH. 358).

During the summer of 2016, a woman living with Vermillion’s aunt, Linda

Thames, began to hang out with Doug Mixon. (EH. 361). This woman would often

invite Mixon over to Thames’ house. (EH 361). Vermillion was adamant that he did

not want Mixon at his family’s house, but was told by his aunt to mind his own

business. (EH 361). For his aunt’s sake, Vermillion tried to maintain civility with

Mixon. (EH 361).

One evening, Mixon started divulging things about his past to Vermillion .

(EH. 362). During the course of this conversation, Mixon said “I know I’ve done a

lot of things I’m not proud of” and asked Vermillion to forgive him. (EH. 362).

Vermillion responded, telling Mixon that he could not forgive him for anything and

directed him to seek forgiveness from Brandon Brown . (EH. 362). Mixon did not

protest Vermillion’s direction. (EH 362).

Mixon then began to panic and became “hysterical .” (EH. 364). Vermillion

believed Mixon was having a heart attack. (EH. 363). Vermillion left Thames’ house

and called 911, but actually saw an ambulance come and take Mixon from the

residence. (EH. 364). Mixon confirmed at the hearing that he did, in fact, have a

heart attack at Linda Thames’ house in July of 2016, that Vermillion was present

and that he was taken from the house by ambulance. (EH. 310, 311).

092

It is not in dispute that this evidence constitutes newly discovered evidence .

It is clear from the testimony itself that counsel nor Calhoun could not have known

of it by the use of due diligence, as Mixon’s statements were not made until July

2016, well after the conclusion of Calhoun’s trial.

B. The newly discovered evidence gives rise to a reasonable doubt about

Calhoun’s guilt

Jones requires that any newly discovered evidence “probably produce an

acquittal on retrial.” Jones, 709 So. 2d at 514. The fundamental question when

assessing a newly discovered evidence claim is whether the new evidence “weakens

the case against [the defendant] so as to give rise to a reasonable doubt as to his

culpability.” Jones, 709 So. 2d at 526. This Court then, must “conduct a cumulative

analysis of all the evidence” – that is, weigh the new evidence, “in combination with

the evidence developed in postconviction proceedings,” and the evidence at trial

viewed through the lens of these new revelations – “so that there is a ‘total picture’

of the case and ‘all the circumstances of the case.’” Swafford, 125 So. 3d at 776, 778

(quoting Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999)); see also Jones, So.

2d at 521.

Calhoun’s newly discovered evidence clearly satisfied the Jones standard.

The testimony of Simmons and Vermillion both implicate Doug Mixon in Mia

Brown’s murder. Simmons places an anxious, shirtless, blood-covered Mixon

running with a large, empty gas can, close in time to Mia Brown’s disappearance .

093

As this court noted several times in its order denying Calhoun’s direct appeal, the

remnants of Mia Brown’s car tested positive for an ignitable liquid. Calhoun at 357,

366. Additionally, Mixon, in effect, confessed his involvement in Mia Brown’s

murder to Vermillion. While true that Mixon did not explicitly tell Vermillion that

he killed Mia Brown, he certainly intimated it. At a new trial, the argument could

be made and a jury could reasonably infer that his asking Vermillion, a member of

Mia Brown’s extended family for forgiveness, is akin to a confession . See, State v.

Gad, 27 So. 3d 768, 770 (Fla. 2d DCA 2010). Further, when Vermillion directed

Mixon to seek forgiveness from Brandon Brown, Mixon did not protest his

innocence in the murder of Mia Brown; he instead grew agitated and hysterical . This

newly discovered evidence would strengthen Calhoun’s claims of innocence and his

Mixon-did-it theory of defense.16

Evidence pointing to Mixon’s guilt must also be considered in light of the fact

that his dubious alibi has since been destroyed, as Jose Contreras maintains that

Mixon never stayed the night at his house. Contreras’ testimony is supported by

Mixon’s numerous statements to law enforcement, where he fails to initially provide

an alibi. What’s more, Contreras also testified that Mixon confessed his involvement

in Mia Brown’s murder to him. Further, Mixon’s main alibi witness, Gabby Faulk,

In addition, Calhoun would be able to introduce the newly discovered evidence

of Keith Ellis, who would testify that Doug Mixon confessed to burning a girl in

the trunk of her car and framing the person convicted of her murder.

094

initially dismissed Mixon’s claim that they were together during the relevant time

period, further calling into question Mixon’s whereabouts.

This Court must also consider additional evidence presented by Calhoun in

postconviction to obtain a “total picture” of the case. This includes evidence that the

State’s digital forensic evidence, which it relied upon to establish a timeline, was

compromised and unreliable. It also includes evidence that it is not at all probable

that the scratches found on Calhoun were caused by fingernail scratches, as the State

argued to the jury at Calhoun’s first trial.

Additionally, at a new trial Calhoun would be able to present evidence of

suspicious circumstances surrounding Brandon Brown, such as the fact that he lied

to law enforcement about calling Mia when she was discovered missing and that he

lied about his reason for not going out to look for her . Calhoun could present

evidence that less than two weeks before she was murdered, Mia Brown documented

injuries that she sustained and then deleted those images from her camera .

Calhoun would also be able to call into question the dubious identifications of

Sherry Bradley and Darren Batchelor, both of which were integral to the State’s case.

This could be done through impeachment evidence, and by presenting the jury with

an actual photograph of the shirt Calhoun was wearing when he was alleged to have

been in Bradley’s store, which is fundamentally at odds with the clothing Bradley

describes. Calhoun would be able to present to the jury the full picture of where he

095

was in the woods when he was close to law enforcement, instead of letting the State

paint a misleading picture which places him a stone’s throw from Mia Brown’s car,

hours after it was burned, depriving the State of its consciousness of guilt argument .

All of this evidence would be combined with the evidence elicited at

Calhoun’s first trial regarding the suspicious activities at the junkyard the night Mia

Brown went missing. It would also be combined with the evidence and argument

that Brittany Mixon either tampered with, or planted evidence, to implicate Calhoun

in Mia Brown’s death. Though trial counsel attempted to argue this at Calhoun’s

first trial, she did so without providing the jury with a motive for why Brittany Mixon

would tamper with evidence. Given the new evidence demonstrating Doug Mixon’s

involvement, Calhoun would be able to demonstrate to the jury why Brittany Mixon

had her hands on critical pieces of evidence in this case.

At a new trial, the State still has to contend with the fact that it has no motive,

no confession, and no eyewitnesses to establish that Calhoun killed Mia Brown . In

a circumstantial evidence case, the State will bear a particularly high burden of proof

at any new trial – i.e., all of the facts “must be inconsistent with innocence” and must

“lead to a reasonable and moral certainty that [Calhoun] and no one else committed

the offense charged.” Dausch v. State, 141 So. 2d 513, 517 (Fla. 2014); Ballard v.

State, 923 So. 2d 475 (Fla. 2006) (evidence must exclude “all other inferences” than

guilt).

096

When all of these new facts, together with all of the evidence that Calhoun

could present at a new trial, are weighed against the State’s circumstantial evidence

case, the “total picture” is so different that there is a reasonable doubt as to Calhoun’s

guilt. Because Calhoun’s new evidence “completely changes the character” of the

State’s circumstantial evidence case against him, Swafford at 778, this Court should

vacate Calhoun’s convictions and sentence and remand for a new trial.

C. The circuit court erred by denying relief

In denying relief, the circuit court failed to conduct an independent

analysis of Calhoun’s claim, copying the State’s disjointed written closing argument

nearly word for word. Additionally, there are no credibility findings as to Natasha

Simmons or Robert Vermillion. In a conclusory statement, the circuit court finds

that the outcome of the trial would not have been different with “Ms. Simmons’

inconsistencies”, but failed to cite to a single inconsistency. This is not a credibility

finding. The circuit court, and State by obvious extension, failed to conduct any

meaningful legal analysis to explain its denial of relief.

III.

CALHOUN’S TRIAL WAS AFFLICTED WITH A VIOLATION OF

BRADY V. MARYLAND

Calhoun’s trial was afflicted by a violation of Brady v. Maryland 373 U.S. 83

(1963). In order to prove a Brady violation, a claimant must establish that the

government possessed evidence that was suppressed, that the evidence was

“exculpatory” or “impeachment” and that the evidence was “material.” United State

097

v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v.

Greene, 527 U.S. 263 (1999). Evidence is “material” and a new trial or sentencing

is warranted “if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceedings would have been different .”

Kyles at 433-34; Hoffman v. State, 800 So. 2d 174 (Fla. 2001); Rogers v. State, 782

So. 2d 373 (Fla. 2001); Young v. State, 739 So. 2d 553 (Fla. 1999). 17 To the extent

that counsel was or should have been aware of this information, counsel was

ineffective in failing to discover it and utilize it.

A proper materiality analysis under Brady must also contemplate the

cumulative effect of all the suppressed information. Further, the materiality inquiry

is not a “sufficiency of the evidence” test . Kyles, 514 U.S. at 434. The burden of

proof for establishing materiality is less than a preponderance. Williams v. Taylor,

529 U.S. 362 (2000); Kyles, 514 U.S. at 434. Or in other words: “A defendant need

not demonstrate that after discounting the inculpatory evidence in light of the

undisclosed evidence, there would not have been enough left to convict.” Id. Rather,

the suppressed information must be evaluated in light of the effect on the

prosecution’s case as a whole and the “importance and specificity” of the witnesses’

testimony. United States v. Scheer, 168 F.3d 445, 452-53 (11th Cir. 1999).

The determination of whether a Brady violation has occurred is subject to

independent appellate review. See Cardona v. State, 826 So. 2d 968 (Fla. 2002).

098

This claim is predicated on the same evidence regarding Natasha Simmons’

encounter with Doug Mixon, discussed supra. The factual matters contained in that

claim are fully incorporated herein by specific reference.

The foregoing demonstrate a clear Brady violation. As required by Brady,

Calhoun has proven that the government possessed the evidence that was

suppressed. Simmons went directly to the Sheriff of Geneva County, Alabama, Greg

Ward, and told him about her suspicious encounter with Doug Mixon, who was

considered a person of interest in the disappearance of Mia Brown . It is apparent

that this information was suppressed from Calhoun and his defense team. Simmons’

name does not appear anywhere in the record in this case. While there is no

indication that Ward provided the prosecution with this information, that question is

not a factor in a Brady analysis. “It is irrelevant whether the prosecutor or police is

responsible for the nondisclosure; it is enough that the State itself fails to disclose.”

Garcia v. State, 622 So. 2d 1324, 1330 (Fla. 1993). “The State is charged with

constructive knowledge and possession of evidence withheld by other state agents,

including law enforcement officers.” Jones v. State, 709 So. 2d 512, 520 (Fla.

1993)(internal citations omitted).

It cannot be seriously in dispute that the Geneva County Sheriff’s Office

assisted in the investigation into Mia Brown’s murder, which directly led to the

prosecution of Calhoun. Mia Brown’s burnt car and her remains were found in a

099

patch of woods located in Geneva County. (T. 577). In fact, it was an Alabama Game

Warden who located the car and body. (T. 563, 566). Additionally, on August 26,

2011, counsel for Calhoun filed a subpoena for deposition duces tecum with the

circuit court, commanding the Geneva County Sheriff’s Office to turn over “photos,

videotapes, and any and all crime scene evidence pertaining to this case . Geneva

County File #86-0170-09-2011; Holmes county case no. 20101210068.” Anie

Ward, a lieutenant with the Geneva County Sheriff’s Office, was deposed by counsel

and the State on September 26, 2011. (R 734.) Lt. Raley utilized Anie Ward to obtain

search warrants in Alabama and it was Ward who collected the evidence at the

Brooks residence. (R. 832). Members of the Geneva County Sheriff’s Office,

including Greg Ward, were at the burn site while evidence was being processed . (R.

342). It was a Geneva County deputy sheriff who was keeping the crime scene log.

(R. 343). It is patently obvious that the Geneva County Sheriff’s Office was involved

in the investigation of Mia Brown’s death. See, Rogers v. State, 782 So. 2d 373 (Fla.

2001)(finding police reports from other jurisdictions were Brady material where

other law enforcement agencies were investigating crimes similar to what defendant

was charged with). The circuit court’s conclusory finding that Sheriff Greg Ward

was not a member of the prosecution team is meritless and contradicted by the

record. (PCR. 2602). Calhoun has proven that the government possessed the

information that was suppressed.

100

The information Simmons provided to Ward was clearly exculpatory and

material. During its investigation, law enforcement spoke to Mixon a number of

times, always considering him to be an alternate suspect, or at the very least, a person

of interest. Counsel clearly considered Mixon to be a viable alternate suspect, as her

entire strategy was to “blame Doug Mixon.” (EH. 54).

The case against Calhoun was entirely circumstantial. And it was not a strong

circumstantial evidence case, at that. There is no confession, no eyewitnesses, and

no motive for Calhoun to kill Mia Brown . Calhoun adamantly maintained his

innocence to law enforcement. During her case-in-chief, trial counsel put on

evidence of suspicious events occurring the night of Mia Brown’s disappearance and

went to great lengths to suggest that Brittany Mixon planted or tampered with

evidence. Counsel also made a vague argument to the jury that Doug Mixon may

have been involved in the murder. (T. 1199). The information that Simmons

provided Sheriff Ward would have given counsel an evidentiary basis for which to

make the argument that it was Doug Mixon, not Calhoun, who killed Mia Brown .

After all, according to Simmons, Mixon was running, covered in blood, carrying an

empty gas container close in time to when Mia Brown was burned in her car with

the use of an accelerant. He was insistent that he be taken to Geneva, Alabama and

appeared to be agitated, cursing Gabby from the back seat . This evidence would

have cast the case against Calhoun in an entirely different light .

101

The failure to disclose this evidence to Calhoun was a clear Brady violation.

Had Calhoun been aware of this information, he could have utilized it at trial to

diminish the State’s case against him. There is a reasonable probability that the

result of the proceeding would have been different.

The circuit court’s order in regards to Calhoun’s Brady claim is befuddling.18

The circuit court failed to engage in any legal analysis regarding the components of

a Brady violation, only making a conclusory statement that the court “specifically

determines there was not a Brady violation in this cause. [sic]” (PCR. 2606).

Additionally, the circuit court mischaracterized the testimony of Greg Ward, writing

that Ward testified that Simmons never came to meet him while he was the Sheriff

of Geneva County. (PCR. 2602). Ward actually testified that he did not recall such

an encounter, not that it never happened. (EH. 399, 400).19 Notably, the circuit court

made no findings that Simmons was not credible, or that Ward was more credible

than Simmons. This Court, then, is not obligated to give great deference to the circuit

courts findings regarding credibility and fact, as there are none, and is able to make

its own credibility determination. See, Everett v. State, 54 So. 3d 464 (Fla. 2010).

In its order, the circuit court conflates evidence related to Robert Vermillion and

Jose Contreras with the evidence related to the Brady claim at issue. Any Brady

analysis related to Vermillion and Contreras is misplaced.

In its order, the circuit court also wrote that Calhoun “went around and told

several people that he had done a bunch of stupid stuff including this things in this

case.” (PCR. 2605). This alleged testimony, which the circuit court fails to cite to,

is not found anywhere in the transcript of the evidentiary hearing.

102

IV.

CALHOUN’S APPOINTED TRIAL COUNSEL

INEFFECTIVE ASSISTANCE OF COUNSEL.

RENDERED

Counsel has “a duty to bring to bear such skill and knowledge as will render the

trial a reliable adversarial testing process.” Strickland v. Washington, 466 U.S. 667

688 (1984). A successful ineffective assistance of counsel claim must satisfy two

components: (1) counsel’s performance must have been deficient, and (2) the

deficient performance must have prejudiced the defendant. Id. at 668, 687-89. To

establish deficient performance, a petitioner must demonstrate that counsel’s

representation fell below an “objective standard of reasonableness”. Id. at 688.

Although courts generally give great weight to strategic decisions, see, e.g.,

Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000), a court may not defer to a

post hoc rationalization in lieu of examining the attorney’s actual decision making

process. See, Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). Prejudice is defined

as “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is one

sufficient to undermine confidence in the outcome.” Strickland at 694. At the guilt

phase, the question is “whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting guilt[ .]” Id. at

694-95.20 Regarding prejudice, the level of certainty is less that preponderance of

The circuit court utilized the wrong standard of review when evaluating

Calhoun’s claims of ineffective assistance of counsel, believing that Calhoun had

103

the evidence. “[I]t need not be proved that counsel’s performance more likely than

not affected the outcome. Instead, the petitioner need only demonstrate a probability

sufficient to undermine confidence in the outcome.” Nelson v. State, 123 So. 3d 1195

(Fla. 4th DCA 2012)(citations omitted). “The benchmark of an ineffective assistance

of counsel claim is the fairness of the adversary proceeding .” Code v. Montgomery,

799 F. 2d 1481 (11th Cir. 1986).

Strickland makes clear that counsel has a duty to conduct a reasonable

investigation. In fact, “[o]ne of the primary duties defense counsel owes to his client

is the duty to prepare himself adequately prior to trial .” Fitzpatrick v. State, 118 So.

3d 737, 753 (Fla. 2013)(internal citations omitted). As this Court has recognized,

“[p]retrial preparation, principally because it provides a basis upon which most of

the defense case must rest, is, perhaps the most critical stage of a lawyer’s

preparation.” Id.

In light of that essential and basic duty of preparation, counsel is required to either

make reasonable investigations or to “make a reasonable decision that makes

particular investigations unnecessary.” Strickland at 690-91. In other words, if

counsel decides not to investigate an issue, that decision “must be directly assessed

to show that “but for counsel’s alleged errors, he probably would have received an

acquittal at trial or a life sentence during the penalty phase.” (PCR. 2568). Calhoun

pointed out the circuit court’s error in his Motion for Rehearing, which was denied .

(PCR. 3912, 3916).

104

for reasonableness in all the circumstances.” Id. What’s more, even when counsel

conducts some investigation, “a court must consider not only the quantum of

evidence already known to counsel but also whether the known evidence would lead

a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527

(2003).

A “cursory investigation” does not “automatically justif[y] a tactical

decision.” Id. 21

A. Counsel’s failure to investigate Doug Mixon’s alibi was Deficient

Performance that Prejudiced Calhoun

1. Counsel’s failure to investigate Doug Mixon’s alibi constitutes

deficient performance

At Calhoun’s evidentiary hearing, trial counsel was unequivocal in her

testimony that her trial strategy was to blame Doug Mixon for the murder of Mia

Brown. (EH. 54, 102). Calhoun, “from the very beginning” was “insistent” and

“adamant” that Doug Mixon was responsible for the death of Mia Brown . (EH. 54,

84, 157, 193). Counsel testified that she generally does not favor the “shotgun

approach” to trial; rather, she prefers a “focused approach”, particularly as it related

to arguing an alternative suspect is the one responsible for the crime. (EH 55). It is

Ineffective assistance of counsel claims present a mixed questions of law and

fact. This Court employs a mixed standard of review, deferring to the circuit

court’s factual findings that are supported by competent, substantial evidence, but

reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883

So. 2d 766 (Fla. 2004).

105

evident from her testimony that her focus was Doug Mixon. “We were blaming it on

Doug Mixon.” (EH. 102).

Once counsel made the decision to put forth a defense theory that Doug Mixon

was the one responsible for this crime, it was incumbent upon her to investigate the

viability of this defense, including investigating any alibi Mixon offered. Though

counsel did not testify as to precisely when she chose to advance the Mixon-did-it

theory of defense, she testified throughout the evidentiary hearing that Calhoun was

insistent “from the very beginning” that Doug Mixon killed Mia Brown. (EH. 52,

84, 157, 193).

Additionally, counsel was aware that law enforcement investigated Mixon as

a possible alternate suspect. (EH. 157). Law enforcement officers spoke to Mixon a

number of times, and during those conversations, he provided an alibi that was full

of inconsistencies.

Officers also spoke to his then-girlfriend, Gabrielle Faulk

(“Gabby”), and his children, Brittany Mixon and John Will Mixon . Given Calhoun’s

early and constant insistence that Mixon was the guilty party, and law enforcement’s

early focus on him, it is reasonable to conclude that counsel was at least considering

Mixon as an alternate suspect very early on in her representation of Calhoun.

Therefore, it is axiomatic that counsel’s obligation to investigate Mixon as an

alternate suspect, which necessarily encompasses investigating his alibi, was

triggered the moment she decided that they “were blaming it on Doug Mixon .”

106

Counsel was provided with copies of all of the witness interviews that law

enforcement conducted. (EH. 80). Doug Mixon gave his first sworn statement to

law enforcement on January 20, 2011. (EH Exh. 19). In that statement, Mixon

claimed to have spent the evening of December 16, 2010 – the evening Calhoun and

Mia Brown went missing – and the following day with his girlfriend, Gabby.

According to Mixon, he and Gabby were to be married on Friday, December 17,

2010, but they did not go through with it. (EH Exh. 19).

On January 13, 2011, a week prior to Mixon’s first recorded statement, Gabby

gave a sworn statement to law enforcement. (EH Exh. 20). In her statement, Gabby

told law enforcement that Mixon was not with her on December 16 or 17 and denied

that they ever had plans to marry. She also told law enforcement that the only time

she saw Mixon during the time period that Calhoun and Mia Brown were missing

was on Saturday night, when he came to plead with her to take him back . She

claimed the only time she actually spent with Mixon the weekend Calhoun and Mia

Brown disappeared was on Sunday, December 19, when she was at Mixon’s house

making dinner.

When counsel deposed Mixon on September 28, 2011, he had firmed up the

details of his alibi. (EH Exh. 21). During his deposition, Mixon stated definitively

that he and Gabby spent the evening of December 16, 2010 together at Jose

Contreras’ house in Geneva, Alabama. When counsel deposed Gabby on January

107

12, 2012, Gabby, too, had changed her initial story, and now said that Mixon was

with her during the evening of and afternoon following Mia Brown’s disappearance.

(EH Exh. 22). In the intervening time between her initial statement to police and her

deposition, Gabby had married Mixon and she was now corroborating the alibi she

initially claimed to be false. (EH 169). What’s more, the State listed Contreras as a

witness on January 23, 2012, providing Counsel with two addresses for him, which

counsel confirmed she received. (EH. 170).

Counsel conceded that she knew Doug Mixon was claiming Contreras as his

alibi at least as early as Mixon’s deposition in September of 2011. (EH. 171).

Despite knowing who her alternate suspect’s alibi was, counsel never made any

attempt to speak to Contreras. (EH. 170).

Not only did counsel herself fail to conduct any investigation into Mixon’s

alibi, Earnest Jordan, the investigator assigned to Calhoun’s case, also shirked his

responsibility. Jordan testified that if law enforcement had discounted a particular

piece of information, he would not follow up on it, reasoning that he did not have

the “time and energy” to chase leads down . (EH. 286, 285). In Jordan’s view, it is

the job of an incarcerated defendant to steer the investigation of his own case . (EH.

285). Jordan admitted that he did not do much investigation into Doug Mixon,

saying that he and counsel discussed it and decided the best approach “would be to

depose him and then call him at the trial in the penalty phase .” (EH. 289). Jordan

108

testified that he “just did basically a background, from what law enforcement had

and so forth.” (EH. 289). From this “investigation”, Jordan, without speaking to a

single witness, surmised that anyone Mixon named as an alibi witness would

confirm his alibi, even if it were not true. (EH. 289). When questioned about his

failure to speak to Jose Contreras, Jordan testified that he did not know how speaking

to Contreras would help because “if [Mixon] has an alibi during the time of the

commission of the crime, he couldn’t have been available to commit the crime .”

(EH. 290). Without even conducting a cursory background check, Jordan concluded

that Contreras was a liar and a criminal, and thus, not worth the time and energy to

interview. (EH. 290-91).

Jordan testified that he did not see the critical need to investigation Mixon’s

alibi because Calhoun never told Jordan that Mixon killed Mia Brown. (EH. 29192). Apparently the fact that Mixon was a person of interest to law enforcement was

lost on Jordan. Had Calhoun told Jordan that Mixon was responsible, Jordan would

have done more to investigate Mixon. (EH. 212-13). Jordan also testified that had

trial counsel advised him that Calhoun told her that Mixon was responsible, he would

have done more to investigate Mixon. (EH. 292). It is clear from the record that trial

counsel never shared her Mixon-did-it theory of defense with her defense team.

In its order denying Calhoun’s claim, the circuit court copied verbatim from

the State’s written closing arguments, finding that Calhoun did not establish

109

deficient performance on the part of trial counsel. (PCR. 2593). The circuit court

stated that counsel “tried to investigate Doug Mixon’s alibi to the best of her ability.”

(PCR. 2593). Because this is merely a legal conclusion by the circuit court, it is not

entitled to any deference by this Court. See Bogle v. State, 213 So. 3d 833, 846 (Fla.

2017).

Counsel admittedly made no effort to contact Jose Contreras, nor did anybody

else on Calhoun’s defense team. (EH. 170-72, 216, 221, 289-91). There is no

testimony that the failure to contact Jose Contreras or to otherwise investigate

Mixon’s alibi was strategic or based on reasonable, professional judgment . When

pressed, counsel simply stated that she did not know why she failed to even attempt

to speak to Contreras. (EH. 171). Counsel is required to either make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary. Strickland at 690-91. Neglecting to investigate an alternate viable

suspect that is central to your theory of defense is patently unreasonable . Neglecting

to conduct such an investigation based on untested, unfounded and incorrect

assumptions is neither reasonable nor professional . It is clear counsel rendered

constitutionally deficient representation.

2. Counsel’s failure to investigate Doug Mixon’s alibi was deficient

performance that prejudiced Calhoun

Counsel firmly believed Doug Mixon was a viable alternate suspect and she

wanted the jury to know that. (EH. 171). She thought it was critical to show the jury

110

that Doug Mixon lied to law enforcement. (EH. 162). It is clear from her testimony

that she believed implicating Doug Mixon in the crime and exposing his efforts at

concealing the truth would give the jury a basis to find reasonable doubt as to

Calhoun’s guilt. Implicating Doug Mixon became a central theory of counsel’s

defense. (EH. 54, 102).

Had counsel spoken to Jose Contreras, she would have learned that not only

was Mixon not with Contreras during the time frame that Mia Brown disappeared

and was murdered, but that Mixon actually confessed to Contreras that it was he who

killed Mia Brown. (EH. 342-43, 345). Contreras, who was available and willing to

testify at trial, testified at Calhoun’s evidentiary hearing that he made efforts to tell

law enforcement what Mixon told him, but he was turned away. (EH. 346-47). Thus,

Contreras would have talked to Calhoun’s defense team had he been approached and

would have refused to lie for Mixon. (EH. 347).

Due to her failure to investigate Doug Mixon’s alibi, counsel had to formulate

a different strategy to implicate Doug Mixon. Though his involvement was central

to her defense, counsel never mentioned his name during opening statement . (EH.

534-540). The only reference to Doug Mixon at all during counsel’s opening was

that Brittany Mixon took “her father’s truck” the morning of Mia Brown’s

disappearance. (T. 538). During the State’s case-in-chief, the only references to

Doug Mixon were during counsel’s cross-examination of Brittany Mixon. Counsel

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elicited that Brittany’s father did not have a phone, that she took her father’s truck

the morning Mia Brown was reported missing, that her father’s house had chicken

coops, and most inexplicably, that Doug Mixon did not know where Calhoun’s

campground was and that Brittany had never told him. (T. 722, 732-33, 735). At no

point during her cross-examination of Brittany Mixon did counsel imply or attempt

to imply that Doug Mixon was involved.

Counsel failed to bring up Doug Mixon for the remainder of the State’s case

and did not mention him again until she called the lead investigator in the case, Lt.

Michael Raley, to the stand to testify for the defense. During her direct examination,

counsel asked Lt. Raley if he ever established Mixon’s alibi “through the course of

[his] investigation.” (T. 1080-82). Lt. Raley testified that he did and that Mixon was

with Gabby Faulk in Geneva, Alabama during the relevant timeframe. (T. 1080-82).

Because counsel had failed to speak to Jose Contreras or do any investigation into

Mixon’s alibi, she had no way to refute this testimony – testimony that she elicited.

It is unfathomable that defense counsel would thwart her own theory of defense by

establishing an alternate suspect’s alibi for them. This testimony did nothing to

imply that Doug Mixon was responsible for the death of Mia Brown. In fact, it did

the exact opposite.

Counsel’s stated reason for establishing the alibi of the person she was

blaming the murder on was that she wanted to establish that Mixon lied to law

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enforcement. (EH. 162). Counsel’s plan was to show that Brittany Mixon’s story

was that her father was in Geneva the night Mia Brown disappeared, came to Bonifay

the next morning, and then returned to Geneva. (EH. 106-62). Counsel claimed that

she wanted to compare this with what Doug Mixon told Lt. Raley, which was that

he went to Geneva and stayed there with Gabby, never returning to Bonifay . (EH.

162). However, during her direct examination of Lt. Raley, she elicited from him

that Mixon was “in Geneva, back and forth[.]” (T. 1082). Not only did counsel

establish Mixon’s alibi, she also cleared up any potential inconsistencies between

what Mixon told law enforcement and what Brittany Mixon testified to . Had counsel

investigated Mixon’s alibi at all, she could have avoided this disastrous line of

questioning.

Counsel chose the “focused approach” to “imply Doug Mixon’s

involvement.” (EH. 53, 55). The foundation of her case appears to have rested upon

her presumption that Calhoun would testify and Mixon’s denial of involvement .

(EH. 102, 198-200). However, Calhoun decided prior to trial that he was not going

to testify, a fact which counsel knew. (EH. 205).

Counsel also knew that Mixon would deny that he killed Mia Brown or had

any knowledge relevant to the murder. (EH. 149, 198). Because she had done no

investigation into Mixon’s alibi, she would have been unable to counter his

testimony. Had counsel performed the investigation and preparation required of her

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by the Sixth Amendment to the United States Constitution, she would have learned

that Mixon’s alibi was false and easily refuted. This would have allowed counsel to

do more than simply “imply” that Mixon was involved, it would have given her

theory of defense some teeth. She could have vigorously argued, with evidentiary

support, that it was Doug Mixon who killed Mia Brown.

Counsel appeared to suggest that her Mixon-did-it theory of defense was

thwarted by Calhoun exercising his constitutional right not to testify and by his

desire to keep Mixon off the stand out of fear for his family’s safety. (EH. 54, 102,

199-200).

The circuit court too blamed Calhoun for counsel’s prejudicial

performance, saying “It was Calhoun’s choice to abandon calling Mr . Mixon to

testify, thereby undermining his defense theory.” (PCR. 2594). However, the circuit

court failed to articulate any basis as to how Calhoun thwarted counsel’s ability to

even investigate Mixon’s albi. It was Calhoun who implicated Doug Mixon to begin

with. There is no evidence that he told counsel not to investigate Mixon .

Furthermore, is defense counsel who has the ultimate authority in exercising

his or her client’s constitutional right to present witnesses . Puglisi v. State, 112 So.

3d 1196, 1206 (Fla. 2013). This is because the decision whether or not to present a

witness is a “tactical, strategic decision within counsel’s professional judgment.” Id.

“Therefore, if a criminal defendant disagrees with his or her attorney as to whether

to have a witness testify at trial, it is the defense counsel who has the ultimate

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authority on the matter[.]” Id. Counsel acknowledged that the decision of whether

or not to call Mixon was within her sole discretion . (EH. 139). By counsel’s own

admission, she was blaming the murder of Mia Brown on Doug Mixon . (EH. 102).

She set up her case, including eliciting harmful information, with an eye towards

presenting Mixon. (EH. 147, 148, 158, 160-64). Building a defense on a house of

cards, without investigating a single card in the deck, was unreasonable.

Abandoning a defense at the last minute, with no alternate plan, was unreasonable.

This is especially true given counsel’s advance notice that Calhoun was

uncomfortable with the idea of calling Mixon. (EH. 198-200, 205) Counsel testified

that as trial approached, Calhoun’s concerns about his family’s safety grew . (EH.

198-99).

According to counsel, Calhoun continued to express his concerns

throughout trial. His opposition to Mixon being called as a witness was not a lastminute surprise. Counsel has time to ponder this exact situation and alter her trial

strategy accordingly.

In its plagiarized order, the circuit court found that Calhoun was not prejudiced

by counsel’s failure to call Mixon due to the “overwhelming evidence of Calhoun’s

guilt.” (PCR. 2594). The case against Calhoun was an entirely a circumstantial one.

The “overwhelming evidence of guilt” the circuit court relies on in finding that

Calhoun suffered no prejudice from counsel’s failings has largely been refuted . This,

combined with the evidence Calhoun presented regarding Mixon’s non-existent alibi

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establish that Calhoun suffered great prejudice due to the deficient performance of

counsel.22

B. Counsel’s failure to consult with and hire forensic experts was deficient

performance that prejudiced Calhoun

1. Counsel’s failure to consult with or hire a forensic pathologist

constitutes deficient performance

Counsel failed to consult with or retain a forensic pathologist, thereby failing

to subject the State’s evidence to any adversarial testing .

Counsel has a

responsibility to educate themselves about the aspects of a case they do not

understand. However, gaining personal knowledge of a subject does not end

counsel’s obligation to his or her client. Fitzpatrick, 118 So. 3d at 757. Counsel

must then apply the knowledge gained in a way that provides his or her client with

evidence and constitutionally adequate legal representation. Id.

In its order denying Calhoun’s claim, the circuit court stated “calling Doug

Mixon as a witness would not have made a difference as it does not pertain to the

DNA evidence that was found, the location of the burnt car, and the citings [sic] of

Calhoun and the victim before her death. (PCR. 2586). To be clear, Calhoun’s

claim is not ineffective assistance of counsel for failure to call Doug Mixon as a

witness; it’s ineffective assistance of counsel for failing to investigate Doug

Mixon’s alibi. Notwithstanding the circuit court’s error in conflating the two

issues, this statement further highlights the error and prejudice that resulted from

the circuit court’s denial of Calhoun’s Motion to Amend and Reopen, discussed

infra. As demonstrated through the facts presented in Calhoun’s Motion to Amend

and Reopen, Doug Mixon’s false alibi does pertain to the DNA evidence and the

location of the burnt car. Additionally, Calhoun and Mia Brown were only seen

together once before her death – at Charlie’s Deli on the afternoon of December

16. There were not multiple sightings.

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When Calhoun was taken into custody he was covered with scratch marks .

Law enforcement took great pains to document these scratches, taking nearly 200

photographs. (EH. 178). Counsel knew pre-trial that it was a possibility that the State

would argue to the jury that the scratches on Calhoun were inflicted by Mia Brown .

(EH. 179).

The State did just that, telling the jury during opening statements that a violent

struggle took place in Calhoun’s trailer that left him with injuries . (T. 519). During

closing arguments, the State once again highlighted the scratches, calling them

“important pieces of evidence” and used them to dismiss the idea that there had been

a break-in at Calhoun’s trailer, a proposition that was important to sustain the Mixondid-it theory of defense. (T. 1153, 1168). What’s more, the State used the scratches

to bolster Sherry Bradley’s identification of Calhoun, as well as its faulty timeline

based on digital forensic evidence that also went unchallenged . (T. 1215-16). The

State dismissed the idea that the scratches came from briars, giving a detailed

explanation of why it could not be the case. (T. 1221-22).

Despite knowing ahead of time that the State was going to argue the scratches

were inflicted by Mia Brown, counsel failed to consult with or retain a forensic

pathologist or similarly qualified medical professional . Her reasoning for failing to

do so is twofold. First, she showed the photographs of the scratches to her former

colleague, Walter Smith, and he told her that she did not need an expert . (EH. 177).

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Second, she decided an expert was not needed because it was “obvious” the scratches

were not caused by fingernails because none of the characteristics one would expect

from a fingernail scratch were present. (EH. 178). Counsel did not want to “insult

[the jury’s] intelligence by calling an expert to say the injuries were inconsistent with

fingernail scratches. (EH. 177).

While it was “obvious” to counsel that the injuries to Calhoun were

inconsistent with being fingernail scratches, the forensic pathologist called by

Calhoun, Dr. Edward Willey, testified that at least two of the four characteristics

commonly seen in fingernail scratches were present in some of the injuries to

Calhoun. (EH. 263). Thus, the images on their face bore some indices that they could

have been caused by fingernails. Dr. Willey testified that he needed to further

enhance the images and ask several additional forensic questions before he could

conclude that they were actually inconsistent with fingernail scratches . (EH. 245;

263-64; 270-71). Not only would it not have been insulting to call an expert to testify

regarding the scratches, it was clearly necessary. Not doing so was unreasonable.

While it was “obvious” to her that the characteristics of fingernail scratches,

such as appropriate thickness and a linear track, were not present, she clearly reached

this conclusion based on advanced or ascertained knowledge . Assuming the jury

possessed this same knowledge because they were from “the country” was

unreasonable. (EH. 177). What’s more, counsel’s reasoning lacks any basis in the

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record. Nowhere in the trial record is it stated by any juror that they are from “the

country” or that they are familiar with the characteristics of fingernail scratches

versus that of briar scratches. Further, it was unreasonable for counsel to rely on the

advice of Walter Smith. He was not qualified to render an opinion on the necessity

of an expert given the fact that he was shown the photographs in a vacuum, without

any working knowledge of the case. Counsel cannot avoid her responsibilities to her

client based on unsubstantiated beliefs of another lawyer. See, Brown v. State, 892

So. 2d 1119 (Fla. 2d DCA 2004); Rose v. State, 675 So. 2d 567 (Fla. 1996)(counsel

is not at liberty to abdicate his responsibility to his client by substituting his own

judgment with that of another lawyer).

Counsel appears to have educated herself regarding fingernail scratches and

the characteristics that are unique to them. (EH. 178). However, counsel failed to

apply that knowledge in a way that provided Calhoun with any evidence . See,

Fitzpatrick at 757. She failed to address the scratches at all during her opening

statement, despite the fact that the State did just that. (T. 1153). The State referenced

the scratches on Calhoun numerous times, using them to bolster the testimony of

witnesses and its timeline. By comparison, counsel addressed the scratches only

twice. Once, she merely stated that anybody who has been out in the woods before

knows that the scratches were caused by briars and a second time to make the point

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that the scratches were not dated, so they could have been inflicted at any time . (T.

1194, 1203).

Counsel’s decision to forego hiring an expert to rebut the State’s argument

regarding the scratches on Calhoun and instead relying on her own advanced

knowledge, which she then failed to apply to Calhoun’s case, was not the product of

reasonable, professional judgment. Counsel failed to utilize the knowledge she

possessed in a way that meaningfully benefitted Calhoun, depriving him of

constitutionally adequate representation. The circuit court failed to address the issue

of deficient performance in its order denying relief, however it is clear that counsel’s

representation was just that – deficient.

2. Counsel’s failure to consult with or hire a forensic pathologist

prejudiced Calhoun.

In denying Calhoun’s claim, the circuit court found that Calhoun could

not show how he was prejudiced by counsel’s failure to call an expert, writing “Even

if an expert could have testified fingernails did not cause the injuries, the other option

did not help Calhoun’s defense.” (PCR. 2589). 23

The State argued to the jury that the scratches on Calhoun, which it repeatedly

characterized as fingernail scratches, were “important pieces of evidence .” (T. 1153).

The relevant portion of the circuit court’s order was not written by the circuit

court at all. Rather, with the exception of two paragraphs, it is taken verbatim from

the State’s closing argument. (PCR. 2467-2471)

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In referencing the scratches, the State repeatedly made inflammatory arguments that

had no basis in evidence, such as “[t]hat girl had scratched Johnny up good” and “. .

. she scratched, and she scratched, and she scratched. She did not go without a fight.”

(T. 1168, 1153). The State also argued to the jury, that there was no way the

scratches on Calhoun were caused by briars, dismissing a plausible explanation for

his injuries and used the scratches to argue premeditation to the jury. (T. 1221, 22,

1161). Continuing to capitalize on counsel’s deficient performance, the State used

the presence of scratches on Calhoun to dismiss the defense’s argument that there

had been a break-in at Calhoun’s trial and most prejudicially, to bolster Sherry

Bradley’s identification of Calhoun, as well as its faulty timeline. (T. 1215-16).

Had counsel consulted with or hired a forensic pathologist, she would have

been able to refute the State’s inflammatory, misleading, and downright false

arguments. At his evidentiary hearing, Calhoun presented Dr. Edward Willey, a

physician who practices forensic medicine. (EH. 242). Dr. Willey testified that he

reviewed “a substantial number” of photographs and opined that none of them had

any of the characteristics that are generally associated with fingernail scratches,

those being semi-lunar indentations, parallel markings, convincing width and

multiplicity. (EH. 245, 247, 260). He went on to say that most fingernail scratches

do not break the skin, yet all the scratches found on Calhoun did . (EH. 248). Dr.

Willey went through a number of photographs, all depicting various areas of

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Calhoun’s body, an opined that, because none of the scratches had the expected

characteristics of fingernail scratches, it was not at all probable that any of the

scratches were caused by fingernails. (EH. 249-256) (emphasis added). Conversely,

Dr. Willey opined that a briar patch was a reasonable explanation of how Calhoun

obtained the scratches. (EH. 257). Calhoun’s jury never had the benefit of this

testimony.

The circuit court relied heavily on this Court’s opinion in Reed v. State, 875

So. 2d 415 (Fla. 2004), which stands for the proposition that where an expert would

not have assisted the defense, trial counsel cannot be found ineffective for failing to

call one. However, the circuit court’s reliance is misplaced, as Reed is easily

distinguishable from the case at hand. Reed raised a claim of ineffective assistance

of counsel based on trial counsel’s failure to retain a hair expert . Id. at 422. In finding

that Reed had not proven prejudice, this Court noted the existence of incriminating

statements made by Reed, as well as the fact that the hair expert would not have been

able to assist trial counsel in any real way. Id. Additionally, this Court noted that the

hair expert possessed information already within the average person’s realm of

knowledge. Id.

Here, the exact opposite is true. In Reed, there was extensive evidence of the

defendant’s guilt. Id. at 419. In comparison, the case against Calhoun was wholly

circumstantial and notably, devoid of admissions . A qualified expert would have

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been able to shut down the State’s inflammatory arguments that the victim fought

for her life and “scratched Johnny up real good.” (T. 1168). An expert would have

lent credence to the defense’s theory that the scratches were caused by briars, while

simultaneously preventing the State from using the existence of scratches to cut

down the defense’s theory and corroborate its own witnesses and timeline . See,

Fitzpatrick at 756 (prejudice shown where counsel’s errors permitted the State to

develop an inaccurate timeline of the crime.) Moreover, the circuit court’s insistence

that there was testimony “presented throughout trial that Calhoun was in the bushes

hiding” is not supported by the record. The only testimony to that effect was a scant

mention during the testimony of Lt. Raley. (T. 955). In the words of the State, it was

“kind of fast testimony and it might have went by you a little quick .” (T. 1210).

Calhoun has presented evidence that undermines the confidence in the

outcome of his trial. Had trial counsel not been ineffective, the jury would have

received evidence that called into question the State’s witnesses and timeline, and

would have been prevented from hearing inflammatory arguments that had no basis

in the evidence. Counsel’s errors and omissions resulted in Calhoun receiving a

fundamentally unfair trial, the result of which is unreliable . There can be no

confidence in the outcome.

3. Counsel’s failure to consult with or hire a digital forensic expert

constitutes deficient performance

Despite knowing the digital forensic evidence against Calhoun would

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provide the State with a much needed timeline of events if not refuted, counsel failed

to retain the appropriate expert, rendering deficient performance. Incumbent upon

counsel is the duty to prepare for trial, which necessarily includes the duty to consult

and present expert testimony in cases where the jury’s interpretation of scientific

evidence imperative. See, Williams v. Thaler, 864 F. 3d 597 (5th Cir. 2012)(defense

counsel’s performance fell below an objective standard of reasonableness when

counsel failed to obtain independent ballistics or forensic experts, and was therefore

unable to offer any meaningful challenge to the findings and conclusions of the

state’s experts, many of which proved to be incorrect.)

During a search of Calhoun’s trailer, law enforcement seized a SD card found

on the floor. (T. 936). While the card was in the custody of the Holmes County

Sheriff’s Office (HCSO), but before it was sent to FDLE for analysis, Lt. Raley put

the SD card into his laptop and accessed the files without the benefit of a writeblocking device, thereby altering the evidence in a first-degree murder case. (T. 936,

EH. 378, 380). On the SD card was a photograph, which Lt. Raley opined to be of

the ceiling of Calhoun’s trailer. (T. 937).

HSCO then sent the corrupted evidence to FDLE for analysis. (T. 936). FDLE

agent Jennifer Roeder, together with the Assistant State Attorney prosecuting the

case, developed a calculation method to determine when the photo purported to be

of Calhoun’s trailer was taken. (T. 920-21). The method is as follows: the State took

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the displayed date and time of a known photograph, in this case a photo of Brandon

Brown holding a baby, and the displayed date and time of the trailer photo, and

calculated the time between the two, which was 46 days and 12 hours . (T. 920-21).

The State then used Mia Brown’s sister to determine the actual date and time of the

known photo and added 46 days and 12 hours to that. (T. 911-14, 920) Through this

method, the State surmised that the trailer photograph was taken on December 17,

2010, between 3:30 and 4:00am. (T. 921).

The State relied on the calculation done by Roeder and the ASA to

place Mia Brown in Calhoun’s trailer on the night she disappeared . (T. 1149). The

calculation also formed the entire basis of the State’s timeline, arguing that from

roughly 9:00 p.m. on December 16, 2010 until smoke was spotted on December 17,

2010 around 11:00.a.m., Mia Brown was held captive and terrorized by Calhoun. (T.

1225). The State argued this showed premeditation on the part of Calhoun and used

it to make improper arguments, inflaming the passions of the jury.

Counsel is not an expert in the field of digital forensics. (EH. 141). Counsel

also agreed that testimony that evidence was compromised and is no longer reliable

is “important”. (EH. 146). What’s more, counsel knew prior to trial that Lt . Raley

corrupted the evidence on the SD card, compromising it. (EH. 144, 206). However,

Counsel failed to hire an expert to analyze the digital forensic evidence and

subsequent calculations in Calhoun’s case because counsel was able to “personally

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follow her through that and understand where she was at .” (EH. 142). Counsel

testified that the only reason she did not ask Roeder about Lt . Raley accessing the

SD card without forensic protection was because it was her impression that the State

already addressed it during direct examination. (EH. 145). Her reasoning falls flat.

At no time during Roeder’s testimony is it revealed that Lt . Raley improperly

accessed the files on the SD card, rendering the integrity of the evidence

questionable. (T. 914-922).

The SD card, as well as the photograph of the trailer and timeline that was

extrapolated from it, were critical to the State’s case. Counsel herself acknowledged

the importance of highlighting compromised and unreliable evidence . (EH. 146).

Yet, despite knowing of Lt. Raley’s improper actions and the importance of the

photograph to the State’s timeline, counsel did nothing to challenge the State’s

evidence. This was deficient performance.

4. Counsel’s failure to consult with or hire a digital forensic expert

prejudiced Calhoun

Had counsel consulted with an expert in digital forensic evidence, she would

have learned there were two significant problems with the State’s digital evidence

against Calhoun.

First, the fact that Lt. Raley accessed the SD card without forensic writeblocking protection is problematic in and of itself. By simply putting the SD card

into his laptop without the benefit of a forensic write-blocker, Lt. Raley altered the

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evidence. (EH. 329). Specifically, Lt. Raley altered the metadata of the photographs.

(EH. 380). Though Raley testified that he accessed the photographs on the SD card

before sending it to FDLE, at no point did either the State or counsel question Lt .

Raley or any other witness about the implications of his actions . At the evidentiary

hearing, Calhoun’s digital forensics expert, John Sawicki, testified that the metadata

in this case was “critical.” (EH. 379).

The second problem, which is intertwined with the first, is the calculation

method employed by the State. While the calculation method is not per se improper,

it rests on a set of assumptions that must be taken as true . (EH. 386). That is,

calculations such as the one done by the State are only as reliable as the evidence

it’s based on. If there are flaws within the evidence, the entire calculation process is

corrupted. (EH. 386).

In order for the calculation method employed in Calhoun’s case to be valid,

three things must be assumed to be true: 1) the known date is valid; 2) there has been

no changes to the time and date stamp between the known photograph and the

unknown date and time; and 3) the metadata has not been changed . (EH. 386-88).

Here, it cannot be definitively said whether or not the date or timestamp had

been changed between the known photograph and the trailer photograph . (EH. 387).

However, there were a number of photographs on the SD card that showed a cratedon date of June 2011, months after the card was taken into custody. (EH. 387). This

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is problematic because it shows at some point, the date and time on the camera had

been manipulated. (EH. 388). This was never pointed out to the jury. The third

assumption cannot be taken as true because it is known for a fact that the metadata

on the SD card was changed by virtue of Lt . Raley’s actions. (EH. 388). Based on

what was known about the SD card and what simply cannot be known, the

calculation done by the State, and therefore the timeline on which the State’s case

was based, is problematic. Counsel should have called this into question.

In its order denying Calhoun relief, the circuit court provided no legal

reasoning for its finding that Calhoun did not prove prejudice. (PCR. 2590-91).24 It

also misquoted and misconstrued Mr. Sawicki’s testimony to conform it to fit its

opinion. For instance, the circuit court claims that Mr. Sawicki testified that there is

no indication that the date and timestamps were manually changed . Mr. Sawicki did

not testify to that. In fact, what he did say was that it cannot be known whether or

not the date and timestamp had been changed. (EH. 387, 393). The circuit court also

claimed that Mr. Sawicki offered no opinion as to the reliability of the evidence,

which is incorrect. Throughout his testimony Mr. Sawicki referred to the State’s

calculation as “problematic.” (EH, 387, 388, 391). Mr. Sawicki also testified that

because the SD card was not kept in a forensically sound manner, it was

The relevant portion of the circuit court’s order was not written by the circuit

court at all. Rather, with the exception of two paragraphs, it is taken verbatim from

the State’s closing argument. (PCR. 2467-2471)

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compromised and because of that, it cannot be relied on. (EH. 390)(emphasis

supplied).

Counsel knew pre-trial that the State’s timeline hinged on the digital evidence.

She knew the State intended to call an expert witness to explain the evidence to the

jury and she also knew that the evidence had been mishandled by law enforcement .

Based on this information alone, counsel should have sought the assistance of an

expert in the field of digital forensics. Had she done so, she would have learned

about the significant problems with the State’s evidence against Calhoun and would

have been able to challenge the State’s timeline as well as the reliability of its

evidence. Counsel’s errors resulted in Calhoun receiving a fundamentally unfair

trial, the result of which is unreliable. There can be no confidence in the outcome.

C. Counsel’s failure to subject the State’s case to adversarial testing through

investigation, cross-examination, the utilization of available

impeachment evidence and proper objections was deficient performance

that prejudiced Calhoun.

1. Counsel’s failure to object to improper testimony constitutes deficient

performance that prejudiced Calhoun.

The law is clear that counsel is duty-bound to object to improper attempts to

prejudice the defendant and secure a conviction on an improper basis . See, Eure v.

State, 764 So. 2d 798, 801 (Fla. 4th DCA 2000); Hodges v. State, 885 So. 2d 338

(Fla. 2004) (Pariente, J., dissenting); Ross v. State, 726 So. 2d 317 (Fla. 2d DCA

1988). Failure to object results in either a fundamental error approach, or an

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ineffective assistance of counsel claim, both of which impose a heavy burden on the

defendant. Without an objection at trial to improper arguments, courts hesitate to

find reversible error. Id.

a. Charles Howe

Charles Howe was the first witness to testify for the State. (T. 543).

After establishing that Mia Brown worked for him, he went on to identify her

employment application. (T. 545-46). During Howe’s testimony, the State elicited

details regarding the characteristics of Mia’s signature, namely that she dots her “I”

and ends her name with a heart. (T. 548).

Counsel was ineffective for failing to object to the introduction of the

employment application and the testimony regarding the hearts in Mia Brown’s

signature. The testimony regarding the hearts was utilized to show Mia’s uniqueness

as an individual and could properly be regarded as victim impact evidence.25

In its order denying relief, the circuit court ignored Calhoun’s argument

regarding the relevance of the evidence. The court made no findings as to whether

or not the evidence was relevant, or whether its relevance was outweighed by its

Fla. Stat. § 921.141(7) (2011) provides for the introduction of victim impact

evidence at the penalty phase of a capital trial. However, it prohibits

characterizations and opinions about the crime, the defendant, and the appropriate

sentence. Id. It also prohibits the introduction of the evidence until the prosecution

has provided evidence of one or more aggravating factors. Id.

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prejudice. Nor did the court make any findings as to whether counsel’s failure to

object was the product of strategy.

Counsel testified that she knew the State was intending to introduce Mia

Brown’s employment application for the express purpose of introducing her

signature. (EH. 57). Counsel’s understanding was that the State needed the signature

on the employment application to properly authenticate Mia Brown’s dental records.

(EH. 57, 58, 60). Notably, at no point during trial did the State ask Howe questions

aimed at authenticating Mia Brown’s signature. Instead, the State’s entire line of

questioning focused on the unique characteristics of Mia’s signature, i .e. “her little

hearts.” (T. 548).

It is clear counsel did not know the law as it pertains to the admissibility of

business records. “Under the business record exception, the trustworthiness of

medical records is presumed.” Barber v. State, 775 So. 2d 258, 260 (Fla. 2000)(citing

Phillips v. Ficarra, 618 So. 2d 312, 313 (Fla. 4th DCA 1993)). Treatment records

are routinely authenticated through the treatment provider and admitted as a business

record exception to the hearsay rule. See Johnson v. State, 117 So. 3d 1238 (Fla. 3d

DCA 2013). Counsel’s ignorance of the law is apparent and inexcusable, especially

given the State’s advance notice regarding its reason use Mia Brown’s signature. It

is well established law that “a tactical or strategic decision is unreasonable if it is

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based on a failure to understand the law.” Sochor v. State, 883 So. 2d 766 (Fla. 2004);

State v. Williams, 127 So. 2d 890 (Fla. 1st DCA 2013);

Counsel’s subjective belief that there was nothing wrong with the State’s

presentation of evidence in regards to Mia Brown’s signature is not dispositive of

the issue. (T. 64). Counsel conceded at the evidentiary hearing that the testimony of

Howe could result in sympathy and emotion on the part of jurors. (EH. 66). Further,

counsel conceded that it is her duty as a capital defense lawyer to try to minimize

the emotions inherent in a capital trial. (EH. 65).

By failing to realize that the introduction of Mia Brown’s signature was

prejudicial and not necessary to prove identity, an issue which was not in dispute,

counsel rendered deficient performance.

b. Dr. Swindle

Dr. Swindle was Mia Brown’s dentist. (T. 549). Through Dr. Swindle, the

State published exhibits 4C and 4F, which were forms that included Mia Brown’s

distinctive signature. The State made sure to emphasize the fact that Mia’s signature

was in fact, on the forms, a point the circuit court seemingly concedes in its order.

(T. 552, 555, PCR. 2578).

For the sake of brevity, undersigned relies on the argument made as it related

to the introduction of documents bearing Mia Brown’s signature made supra.

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Counsel’s failure to object to this improper and prejudicial evidence can only be

classified as deficient performance.

c. Dick Mowbry

Mowbry is an Alabama game warden who found Mia Brown’s body.

(T. 555). Mowbry testified that, while examining the car, he saw what appeared to

be a rib cage and it was a “charred, bad sight.” (T. 566). The State went on to repeat

this testimony a number of times and showed Mowbry several photographs of the

rib cage. (T. 566). After looking at the photographs, Mowbry testified that the

photograph was blurry but “the thought in my mind I will never forget it.” (T. 567).

For evidence to be admissible, it must be relevant . “Relevant evidence is

evidence tending to prove or disprove a material fact .” Fla. Stat. § 90.401 (2011).

Mowbry’s testimony regarding the ribcage did not tend to prove anything. Its sole

purpose was to inflame the passions of the jury, yet counsel failed to raise a single

objection, despite having notice that this evidence was going to be introduced . (EH.

56). In fact, counsel testified that the pictures, which she had pre-trial, were more

emotional than the testimony itself. (EH 73). Counsel did not dispute that the

testimony regarding Mia Brown’s ribcage was inflammatory and emotional . (EH.

71).

The circuit court’s finding that counsel’s decision not to object was strategic

in nature is not supported by competent, substantial evidence. (PCR. 2579). Counsel

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never testified that she failed to object due to a strategy decision . She testified that

she did not even think to object. (EH. 73). Any argument that counsel did not object

because she did not want to draw the jury’s attention to the prejudicial evidence falls

flat. The State referenced the ribcage at least five times and showed Mowbry at least

two photographs of it. Counsel conceded that the testimony was already being

emphasized to the jury through repetitive questioning. (EH. 72).

Not objecting to completely irrelevant, prejudicial evidence designed to draw

emotion into the trial and inflame the passions of the jury was deficient performance

on the part of counsel.

Exposing the jury to emotionally charged and inherently prejudicial testimony

at the guilt phase of trial prejudiced Calhoun. Counsel herself acknowledged that

victim impact evidence can induce jurors to make decisions based on emotion. (EH.

63). It is impossible to say that this evidence, presented at the beginning of the guilt

phase, did not affect the juror’s views of the case, and ultimately their verdict .

Counsel’s errors resulted in Calhoun receiving a fundamentally unfair trial, the result

of which is unreliable. There can be no confidence in the outcome.

2. Counsel’s failure to investigate, effectively cross-examine witnesses

and utilize available impeachment evidence was deficient

performance that prejudiced Calhoun.

Counsel’s stated strategy was to “[b]asically attack the State’s case, but

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imply Doug Mixon’s involvement.” (EH. 54). Counsel planned to accomplish this

through cross-examination of the State’s witnesses. (EH. 53, EH exhibit 6)).

Therefore, it was incumbent upon counsel to scour the discovery and investigate and

discover all the weaknesses in the State’s case that could be attacked through crossexamination, including the presentment of impeachment evidence.

Counsel has a professional obligation to investigate any potential impeaching

or exculpatory evidence that may assist in the defense. Fitzpatrick at 753. “It is

clear that where the record does not indicate otherwise, trial counsel’s failure to

impeach a key witness with inconsistencies constitutes ineffective assistance of

counsel and warrants relief.” Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001). See

also, Kegler v. State, 712 So. 2d 1167 (Fla. 2d DCA 1998) (trial counsel’s failure to

impeach crucial state witness was not reasonable under the circumstances); Kelly v.

State, 198 So. 3d 1077 (Fla. 5th DCA 2016) (failure to impeach a key witness may

amount to ineffective assistance of counsel, warranting relief).

a. Brandon Brown

The circuit court found that counsel rendered deficient performance by

“failing to use the information she had through pre-trial discovery” and by “failing

to investigate other avenues of impeachment evidence that could have been used on

cross-examination.” (PCR. 2850). The circuit court’s finding is supported by

competent, substantial evidence.

135

Counsel conceded that “a lot of things surrounding Mr. Brown were somewhat

suspicious.” (EH. 89). These suspicions actions included lying to law enforcement

about the calls he made to his wife the night she disappeared and lying about his

reasoning for not going out to look for his wife . (EH. 82-85, 87). Additionally,

counsel failed to investigate the seven deleted images from Mia Brown’s SD card

that depicted a woman, who had similar physical characteristics to Mia Brown, with

injuries that were taken in the Brown residence. (EH. 96-98, 226-30). Based on the

calculation method of FDLE agent Roeder, these photographs were taken

approximately nine days before Mia Brown disappeared. (EH. 98-99, 228).26

Counsel testified she chose not to investigate Brandon Brown because

Calhoun was adamant that it was Doug Mixon who killed Mia Brown . (EH. 84).

Counsel conceded, however, that it is her professional obligation to investigate any

possible leads of avenues of defense, despite what her client tells her. (EH. 85). Bell

v. State, 965 So. 2d 48, 62 (Fla. 2007), citing Rompilla v. Beard, 545 U.S. 374, 383

(2005).

The circuit court, without providing any legal reasoning, found that the

photographs depicting injuries would not be admissible at trial . That is

demonstrably false, as photographs taken from the same SD card were admitted

into evidence at Calhoun’s trial. See, State’s trial exhibit 24. Furthermore, counsel

conceded that she conducted no investigation into the images, hence her inability

to authenticate them. In contrast, Lt. Raley testified that the images were clearly

taken in the Brown residence and were consistent with known images of Mia

Brown. (EH. 230-33.).

136

Counsel believed that the underlying tone of the State’s case was that Calhoun

had a “thing” for Mia, and that even Brittany Mixon believed that to be the case .

(EH. 85). Counsel conceded that the suspicious circumstances surrounding Mr .

Brown were in conflict with the State’s portrayal of the Browns as a happily married

couple. (EH. 100). Counsel justified her failure to investigate Brandon Brown by

saying she did not want to attack a grieving husband in front of the jury . (EH. 84,

194). Informing the jury that Brown lied to law enforcement and made virtually no

effort to find his wife does not equate to an “attack” on Brown, rather it gives the

jury a full picture of the Brown’s marriage. However, counsel conceded that she

could have introduced the deleted images which documented the apparent injuries

to Mia Brown through FDLE agent Roeder to avoid attacking Mr. Brown in front of

the jury. (EH. 101).

Counsel’s decision not to investigate Brandon Brown or call attention to the

suspicious circumstances surrounding him was an uninformed decision, made

without the benefit of any investigation.

Strategy decisions made after no

investigation cannot be deemed reasonable. Strickland at 691. Counsel’s failure in

this regard was deficient performance.

The circuit court made no findings as to the prejudice suffered by Calhoun

due to counsel’s failure to investigate and effectively cross-examine Brandon

Brown, saying only “It is clear Ms. Jewell did her best to adhere to her strategy and

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attack the State’s case, while keeping the jury’s trust.” (PCR. 2581). This finding is

not supported by competent, substantial evidence. Nor is “doing your best” the

standard outlined in Strickland for assessing deficient performance or prejudice in

ineffective assistance of counsel claims.

It is clear that Calhoun was prejudiced by counsel’s deficiencies as it relates

to Brandon Brown. The State was able to portray Mia Brown as a happily married

woman, yet the suspicious circumstances surrounding Brandon Brown and the

photographs of her documenting injuries call that into question . The State told the

jury that it did not know what happened the night Mia Brown was murdered, but

they knew it was violent. (T. 1151). Had counsel cast some suspicion upon Brandon

Brown, she would have been able to argue there was a reasonable doubt that

Calhoun, who had little prior relationship with Mia Brown to speak of, was

responsible for her violent murder.

b. Sherry Bradley

Sherry Bradley testified that she saw Calhoun in a convenient store she

managed near Hartford, Alabama in the early morning of December 17, 2010 . (T.

647).27 According to Bradley, Calhoun pulled up to the store in a white car with

Florida plates and parked in a handicap spot. (T. 649, 651-52). When he entered the

Bradley’s store is located 13 miles north of where Mia Brown’s car was

discovered.

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store, he bought a pack of cigarettes and she noticed scratches on his hands . (T. 65051). Bradley also testified that she had not watched, heard, or read any news reports

about the case. (T. 666).

Prior to trial, counsel was in possession of all the interviews conducted by law

enforcement, as well as the missing persons flier for Calhoun and Mia Brown . (EH.

80). Counsel, therefore, knew or should have known that the fact that Mia Brown’s

car was a white Avalon with Florida plates was contained within the flier . (Trial

exhibit 9A). Counsel also knew, or should have known, that Bradley told law

enforcement that she read about the case in the newspaper, and even expressed

concern that she might supplant what she read for what she actually saw . (EH. 107108. EH exhibit 12). In sum, all of the information Bradley testified to could have

been obtained from secondary sources, rather than an actual encounter with Calhoun.

Counsel failed to impeach Bradley with her prior inconsistent statement to

law enforcement that she read about the case in the newspaper . (EH exhibit 12).

Counsel provided no strategic reason for failing to impeach Bradley. Instead,

counsel conceded that she “probably should have” impeached the basis of Bradley’s

identification with her prior inconsistent statement. (EH. 105). Counsel theorized

that she missed this opportunity to impeach a critical witness because she was “very

focused on that ID.” (EH. 108).

139

The foundation for Bradley’s knowledge is directly related to her

identification of Calhoun. A tainted foundation leads to a tainted identification .

Counsel conceded that discovering the foundation of a witness’s information is

important. (EH. 108). If counsel’s focus truly was “that ID”, there was was no reason

for her not to impeach Bradley. Failing to do so was deficient.

In denying Calhoun’s claim, the circuit court found that he had not met his

burden of proving counsel was ineffective because Bradley was not called to testify

at the evidentiary hearing. (PCR. 2582). The circuit court surmised that it was

“speculation” as to what she would have testified to if asked additional questions .

(PCR. 2582). That is simply not the case.

Prior to trial, Bradley gave a sworn statement to Lt. Raley, where she told him

that she had read about the case in the paper. (PCR. 2161, 2174, EH exhibit 12). Had

counsel confronted Bradley with this statement, Bradley would have had one of two

options: 1) deny making the statement, at which point counsel could have introduced

it, or 2) admitted to making the statement. Fla. Stat. 90.608 (2011). Since Bradley’s

statement to law enforcement is in evidence, one need not speculate as to what she

would have said if impeached. Court’s routinely evaluate ineffective assistance of

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counsel claims premised upon a failure to impeach based on record evidence . See,

Butler v. State, 100 So. 3d 638, 654 (Fla. 2012).28

Calhoun was prejudiced by counsel’s failure to impeach Bradley and the

foundation of her information. Bradley was key to the State’s bizarre theory that

after hours of holding Mia Brown captive, Calhoun put her in the trunk of her car,

drove her to store in Alabama, flagrantly parked in a handicap spot, and left her alive

in the trunk to go in to the store and buy cigarettes.29 Bradley was also necessary to

the State’s argument that the scratches on Calhoun were caused by Mia Brown, not

by running through the woods. It was imperative that counsel impeached both

Bradley’s identification, and the foundation of her information. Counsel’s failure to

do so allowed the State to argue that it was more than mere speculation that Calhoun

took Mia Brown’s body to Alabama, in her own car, before burning it. Bradley gave

the State an eyewitness it so desperately needed.

Failure to utilize available

impeachment evidence which would have given rise to a reasonable doubt as to

Calhoun’s guilt was a breakdown of the adversarial system and calls into question

See also, Connor v. State, 979 So. 2d 852, 862 (Fla. 2008); Grim v. State, 971 So.

2d 85, 94 (Fla. 2007), Blake v. State, 180 So. 3d 89, 104 (Fla. 2014); Spann v.

State, 985 So. 2d 1059 (Fla. 2008); Kilgore v. State, 55 So. 3d 487 (Fla. 2010);

Kormondy v. State, 983 So. 2d 418 (Fla. 2007); Davis v. State, 136 So. 3d 1169

(Fla. 2014).

The uncontradicted evidence at trial was that Calhoun did not smoke cigarettes .

(T. 740, 990).

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the reliability of the jury’s verdict. There can be no confidence in the outcome of

Calhoun’s trial.

c. Darren Batchelor

The State used to testimony of Darren Batchelor to corroborate Sherry

Bradley’s testimony, a point which counsel concedes. (EH. 110). The circuit court

also cited to Batchelor’s testimony as corroboration of Bradley’s flawed

identification. (PCR. 2595). Batchelor testified without hesitation that he saw

Calhoun at Bradley’s store in December of 2010. (T. 677).

However, when

Batchelor initially spoke to law enforcement, he equivocated on whether or not it

was Calhoun who he saw. (EH. 114, EH exhibit 13). Counsel never questioned

Batchelor about his prior identification.

Counsel did not provide a strategic reason for not impeaching Batchelor,

conceding that it was something she “should have asked him.” (EH. 115). Counsel

explained that sometimes, she gets so focused on one point that she forgets to

question witnesses about other points. (EH. 115). Forgetting to question a witness

who integral to the State’s case is unacceptable. What’s more, Batchelor was called

as an identification witness. Identifying Calhoun was the sole purpose of his

testimony. Forgetting to impeach an identification witness with prior uncertainties

about their identification is constitutionally deficient.

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Batchelor bolstered his identification of Calhoun by testifying that he knew

Calhoun from attending school together. (T. 677). However, Batchelor is twelve

years older than Calhoun. (EH. 113). In the words of counsel, “there’s no way they

could have gone to school together.” (EH. 113). Counsel should have known this

prior to trial, however she failed to conduct any pretrial investigation into Batchelor .

(EH. 111).

In its order denying relief, the circuit court attempted to blame counsel’s

failure to prepare on Calhoun. (PCR. 2583). In doing so, the circuit court ignored

counsel’s independent constitutional obligation to prepare adequately for trial . See,

Magill v. Dugger, 824 F. 2d 879, 886 (11th Cir. 1987). Counsel’s failure to

adequately prepare for trial left her woefully unprepared to react to Batchelor’s

testimony and rendered her performance deficient.

The prejudice suffered by Calhoun due to counsel’s failure to impeach

Batchelor is clear. Not only did his testimony provide the State with a second,

desperately needed eyewitness, he also corroborated the testimony of Sherry

Bradley, who was a critical witness for the State. Without Batchelor, the State would

have been left with the shaky identification of Bradley, which as discussed supra,

was easily discredited.

This impeachment evidence was critical to arguing

reasonable doubt to the jury, which counsel claimed to be her theory of defense .

143

Counsel failed to utilize this helpful evidence and as a result, there can be no

confidence in the outcome of Calhoun’s trial.

d. Brittany Mixon

Brittany Mixon played a central role in Calhoun’s case. At trial, counsel

attempted to make the argument that Brittany planted or tampered with evidence.

“Because her father is Doug Mixon, the implication [that she was involved] was

there.” (EH. 132).30 Counsel did not, however, provide the jury with a motive for

why Brittany would want to implicate Calhoun in Mia Brown’s murder .

Furthermore, as illustrated by Claim IV(A), supra, counsel never actually implied

that Doug Mixon was the one responsible for Mia Brown’s death.

At trial, Brittany Mixon testified that Calhoun was her boyfriend and that Mia

Brown was a longtime friend of hers. (T. 703). According to Brittany, on the evening

the pair went missing, Calhoun was supposed to be getting a ride to her house from

Mia Brown. (T. 704, EH. 130). Brittany testified on December 17, 2010, she went

looking for Calhoun and saw law enforcement gathered at Charlie’s Deli, so she

attempted to call the deli to speak with Mia. (T. 709). According to Brittany, she

found out shortly thereafter that Calhoun and Mia were missing.

Counsel’s statement completely refutes the circuit court’s finding that Calhoun

cannot establish prejudice because Doug Mixon was the focus of counsel’s theory

of defense, not Brittany Mixon. (PCR. 2584).

144

Counsel was provided with the telephone records for both Charlie’s Deli and

Mia Brown through pre-trial discovery. (EH. 126). The records for Charlie’s Deli

fail to show a single phone call from a number linked to Brittany Mixon . (EH. 12728, EH exhibit 16). Though Brittany testified that her calls went unanswered, the

phone records for Charlie’s Deli show calls at 10:25 p.m. and 3:46 a.m. from other

numbers that show a duration of mere seconds . (EH exhibit 16). Thus, the records

show all incoming calls, regardless of whether or not the phone is answered . (EH.

409). Likewise, the telephone records for Mia Brown’s cell phone fail to show a

single incoming call from a number linked to Brittany Mixon. (EH. 130, EH exhibit

10).

In sum, despite the fact that both her boyfriend and close friend were missing,

Brittany Mixon failed to make a single attempt to contact Mia Brown.

The

reasonable inference is that Brittany never called because she already knew what

happened.

Counsel testified that a lot of things Brittany Mixon did were

“suspicious.” (EH. 132). Given the suspicious actions of Brittany, combined with

counsel’s argument to the jury that Brittany Mixon planted or tampered with

evidence, and her stated strategy that she was blaming the crime on Doug Mixon, it

is unfathomable that she would not want to portray that to the jury. Counsel did not

provide a strategic reason for failing to question Brittany Mixon regarding the phone

145

records and conceded that that she should have. (EH. 132). Counsel’s failure to do

so was objectively unreasonable and was deficient performance.

Had counsel effectively cross-examined Brittany Mixon she would have been

able to provide the jury with a motive for Brittany’s planting or tampering of

evidence, that being, she wanted to help or protect her father, and possibly herself .

Implicating Brittany Mixon in a nefarious plot to frame Calhoun would have given

credence to counsel’s Mixon-did-it theory of defense. Not utilizing this evidence

left the jury at a loss for why Brittany would want to frame Calhoun, and impeded

counsel’s ability to tie Doug Mixon to the murder. Counsel’s omission prevented

Calhoun from receiving a fair trial and as a result, there can be no confidence in the

outcome of the proceedings.

e. Tiffany Brooks

Tiffany Brooks testified that she found Calhoun sleeping in her family’s shed

in the early morning hours of December 18, 2010. (T. 780). She went on to describe

Calhoun’s time at her family’s house up until the point that Calhoun left . (T. 78083). Additionally, she testified that she received a telephone call from her boyfriend,

Steven Bledsoe. (T. 784). After the State asked “What did he tell you?” Brooks

testified that Bledsoe told her that he saw a missing persons flier with Calhoun’s

picture on it, as well as the picture of a girl . (T. 784). At no point did counsel raise

a hearsay objection or a confrontation clause objection to this testimony.

146

Immediately after eliciting Bledsoe’s hearsay statements, the State elicited

from Brooks that Calhoun denied knowing the girl pictured in the flier with him. (T.

784). The State went on to emphasize this point, asking “He didn’t know Mia Chay

Brown?”, “Is that what he told you?” and “Are you sure about that? He didn’t know

Mia Chay Brown?” (T. 784-85). The State clearly wanted to make the point that

Calhoun would not lie about knowing Mia unless he was guilty of kidnapping and

killing her. Indeed, in closing the State argued Calhoun’s statement was evidence of

consciousness of guilt. (T. 1158-60).

Counsel testified that she had no strategic reason for not objecting to this

classic hearsay question. In fact, counsel had no idea why she failed to object. (EH.

135). Counsel explained that she will sometimes miss and objection due to a client

talking to her, however she could not say that was the case here . (EH. 135).

Moreover, counsel conceded that Calhoun talking was unlikely the reason, given the

fact that she missed the same objection with the very next witness. (EH. 135).

Counsel’s failure to object to classic hearsay, which then allowed the State to argue

consciousness of guilt, was objectively unreasonable and constitutes deficient

performance.

Without eliciting the hearsay statements of Bledsoe, the State would have

been unable to elicit from Tiffany Brooks that Calhoun claimed not to know Mia

Brown, as Bledsoe’s phone call precipitated the entire conversation between

147

Calhoun and Brooks. It had to strike the jury as odd, at best, that Calhoun allegedly

lied about knowing Mia Brown. The obvious reason for doing so is that he

kidnapped and murdered her. Had counsel made this basic hearsay objection, the

State would have been deprived of this damaging evidence, which it used to argue

consciousness of guilt. Because of counsel’s failure, there can be no confidence in

the outcome of Calhoun’s trial.

f. Glenda Brooks

Glenda Brooks’ testimony was nearly identical to that of her daughter, Tiffany

Brooks. For the sake of brevity, undersigned relies on the argument made in Claim

IV C(3)(f), supra, as it relates to counsel’s failure to object to inadmissible hearsay.

The factual matters and argument contained in that claim are fully incorporated

herein by specific reference.

Additionally, in its order denying relief, the circuit court found “[T]his as a

prime example of a Defendant who had not been active in his defense constantly

interrupting counsel during a direct-examination.” The circuit court’s finding is not

supported by competent, substantial evidence. Counsel never testified that Calhoun

was constantly interrupting her, nor did she testify that an interruption from Calhoun

was the reason she missed two basic hearsay objections. In fact, counsel was clear

that she did not know why she missed the objections and clarified that she was not

148

saying that Calhoun was constantly interrupting her. (EH. 135). Any finding

indicating otherwise is contrary to the evidentiary hearing record.

Counsel’s failure to object to this improper and prejudicial hearsay evidence

can only be classified as deficient performance which prejudiced Calhoun .

g. Jennifer Roeder

Counsel conceded that she could have used Roeder to establish how an SD

card is removed from a camera but that she did not think to even ask her . (EH. 14041). It was unreasonable for counsel not to highlight for the jury the amount of effort

it takes to remove an SD card and the suspicious nature of the SD card’s convenient

location.

Counsel also failed to ask a single question related the compromised nature of

the SD card due to Lt. Raley’s actions and its impact on reliability of the evidence.

The facts of this claim are detailed in Claim IV (B)(3), supra. The factual matters

and argument contained in that claim are fully incorporated herein by specific

reference. Counsel’s reason for not asking Roeder about Lt. Raley accessing the SD

card without forensic protection was because it was her impression that the State

already addressed it during direct examination. (EH. 145). Her reasoning falls flat.

At no time during Roeder’s testimony is it revealed that Lt . Raley improperly

accessed the files on the SD card. (T. 914-922).

149

Counsel failed to adequately cross-examine Roeder and elicit testimony that

counsel herself believed was necessary and important for the jury to hear . This

failure was objectively unreasonable and constitutes deficient performance.

Counsel testified that she wanted to establish that “everything looked just a

little too made up.”, yet she failed to point out the convenient location of the SD

card. (EH. 148). She also wanted to imply that Brittany Mixon planted or tampered

with evidence. These arguments could have been strengthened had she bothered to

question Roeder about the force necessary to remove SD cards from cameras and

the convenient location of Mia Brown’s SD card . Counsel failed to use this readily

available evidence to bolster her own theory of defense, depriving Calhoun of the

ability to make a strong case for reasonable doubt. What’s more, had counsel

effectively cross-examined Roeder she would have had a solid evidentiary basis to

argue that the evidence in Calhoun’s case was tampered with – whether intentionally

or inadvertently, and was compromised and unreliable as a result . Such testimony

by Roeder would have enabled her to cast a serious doubt as to the State’s timeline,

which was already problematic. Failure to do this was unreasonable and as a result,

there can be no confidence in the outcome of the proceedings.

h. Michael Raley

At trial. Lt. Raley testified that Brittany Mixon called Charlie’s Deli

150

numerous times on the morning of December 17, 2010 from a phone number

belonging to her grandparents. (T. 764). As discussed in Claim IV(3)(C)(e), supra,

the phone records fail to show a single phone call from a number associated with

Brittany Mixon. Counsel failed to question Lt. Raley in regards to this discrepancy.

During cross-examination, counsel asked Lt. Raley about the clothes Calhoun

was wearing when he arrived at the Brooks’ residence. (T. 1085-86). Lt. Raley

testified that the shirt had the word “Fanta” written on it, but he could not provide

any further description. He testified that he was not sure whether or not there was a

logo on the shirt and said that he would have to see a photograph of the shirt to know.

(T. 1086-86). Counsel had been provided a picture of the shirt in question through

pre-trial discovery, yet failed to show it to Lt. Raley at trial. (EH exhibit 18). The

shirt in question has a logo on the front of it that takes up nearly the entire shirt, as

well as the words “Wanta Fanta?” (EH exhibit 18). The shirt Calhoun was actually

wearing when he arrived at the Brooks’ house is in stark contrast to the shirt Sherry

Bradley claimed he was wearing when she saw him at the convenient store . (T. 654,

660). Counsel could provide no reason, strategic or otherwise, why she failed to

show Lt. Raley a photograph of the shirt and question him further on this issue. (EH.

156). By failing to question Lt. Raley about Calhoun’s shirt, counsel forfeited the

opportunity to impeach Sherry Bradley, a witness crucial to the State’s case and

timeline. This failure on counsel’s part was deficient performance.

151

In what was perhaps counsel’s greatest deficiency, she failed to clarify with

Lt. Raley when Calhoun claimed to have been in the woods with law enforcement .

At trial, Raley testified that during Calhoun’s December 20, 2010 interrogation,

which took place in the presence of both Lt. Raley and Ofc. Harry Hamilton, Calhoun

told them that during the days he was missing, he had been in the woods with law

enforcement and “there were three times he was close enough to . . .” (T. 995). Lt.

Raley then tapped on the stand and testified that during the interview, Calhoun

tapped the side of his leg with his foot. (T. 955). The State presented this statement

in a vacuum specifically to mislead the jury regarding Calhoun’s location .

What Calhoun actually told Lt. Raley and Ofc. Hamilton was “[Y]’all was

tightening up the noose last night [December 19, 2010] when I was in the woods

man” and “I’d say more than three times a deputy could of reached out and done like

that.” (EH exhibit 5). When Lt. Raley asked Calhoun where he was when this

happened, Calhoun responded “Down there, close to the Bethlehem Campground . I

don’t really know where I was in the woods.” (EH exhibit 5). Lt. Raley asked

Calhoun if he was referring to the Bethlehem Campground “down here in Florida?”

saying “You made it all the way down there?” Calhoun confirmed that he did . The

jury never heard any of this.

Counsel made a Rule of Completeness argument to the circuit court, seeking

to put Calhoun’s entire statement into evidence, which was overruled. However,

152

counsel still had the opportunity to clarify Calhoun’s location in the woods for the

jury through cross-examination of Lt. Raley, which she failed to do. This is

astounding, considering counsel herself testified that she believed the parts of the

statement the State cherry picked out to be misleading . (EH. 48). In fact, counsel

conceded that Calhoun’s statement could have been construed as a confession . (EH.

50). Counsel’s failure to clarify for the jury where Calhoun said he was in the woods

and when he was there left the jury with the impression that he was in the woods

with law enforcement, next to Mia Brown’s burnt car, within hours of it being

burned.

At the evidentiary hearing, counsel provided no reason, strategic or

otherwise, for her failure to clarify this point for the jury. Her failure to do so was

unreasonable and constitutes deficient performance.

Counsel’s failure to effectively cross-examine Lt. Raley allowed the State to

seize on the misleading evidence it elicited and argue that Calhoun told Lt. Raley

that he was in the woods with law enforcement on Friday afternoon, close to Mia

Brown’s car, within hours of when the State claimed it was set on fire. (T. 1210-11).

Lt. Raley’s uncorrected, misleading testimony cast a shadow of guilt over Calhoun,

the harm of which cannot be overstated. “[A] defendant’s own confession is

probably the most probative and damaging evidence that can be admitted against

him. Bruton v. United States, 391 U.S. 123, 139 (1968). Counsel’s failure to clarify

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Calhoun’s statement to Lt. Raley was unreasonable, deficient, and caused Calhoun

great harm. There can be no confidence in the outcome of the proceeding.

In denying Calhoun’s claim, the circuit court found that trial counsel would

have been in violation of the Code of Professional Conduct had she clarified with

Lt. Raley when and where Calhoun told him that he was in the woods. (PCR. 2586).

This finding is not supported by the record or any competent, substantial evidence .

The circuit court based its finding on counsel’s testimony that Calhoun had told her

that he had been running in the woods in Alabama before he got to the Brooks’

house. (EH. 186). However, Calhoun was not seen at the Brooks’ house until

Saturday morning, almost 24 hours after Mia Brown’s car was burned, according to

the State’s timeline. (T. 780). Counsel never testified that Calhoun told her he was

in the woods right by Mia Brown’s car, within hours of it being burned . Nor did

counsel testify that Calhoun ever told her that he lied to Lt. Raley when he said he

was in the woods with law enforcement in Florida, days after the car was burned .

The trial court’s finding that counsel was ethically bound not to clarify Calhoun’s

statement is directly contradicted by the record.

i. Harvey Glen Bush

Bush testified at trial that on the afternoon of December 16, 2010, Calhoun

interrupted a conversation Bush was having with Mia Brown to ask her for a ride

later that evening. (T. 593-94). He also testified that Mia usually got off work

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between 8:00 and 9:00 p.m. (T. 594). Bush was the only witness to actually place

Calhoun and Mia Brown in the same place at the same time.

During cross-examination counsel reiterated that Mia usually got off work

between 8:00 and 9:00 p.m. and that sometimes the store would close even earlier

than that. (T. 596). However, counsel knew for a fact that on the day Mia Brown

went missing, Charlie’s Deli closed much earlier than usual. During his deposition,

Bush testified that he returned to Charlie’s Deli around 7:00 p.m. on the evening of

December 16, 2010 and that it was already closed . (EH. Exhibit 9). This is curious

in light of Jerry Gammons’ testimony that a young lady in a light colored car

knocked on his door at 8:40 p.m. (T. 606, 612). Counsel conceded that Calhoun’s

trailer, and by extension Gammons’ trailer, were right down the road from Charlie’s

Deli. (EH. 77). This information was damaging to the State’s timeline, as there was

no explanation of what Mia Brown was doing between getting off work and showing

up at Gammons’ trailer. Counsel could not provide a single reason, strategic or

otherwise, for failing to elicit this information from Bush. (EH. 79). Her failure to

do so was deficient performance.

D. By eliciting damaging evidence in the defense’s case in chief, counsel

rendered deficient performance that prejudiced Calhoun.

1. Counsel rendered deficient performance that prejudiced Calhoun by

eliciting harmful evidence from Glenda Brooks

During the defense’s case, counsel called Glenda Brooks as a witness and

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elicited from her she became uncomfortable with Calhoun being in her house after

she learned of the missing persons flier featuring him and Mia Brown . (T. 1076).

Because Brooks had her granddaughter in the house, she wanted Calhoun to leave .

(T. 1076).

The testimony was neither relevant nor necessary. It did nothing to disprove

the State’s case and only served to paint Calhoun as a scary individual who

intimidates grandmothers. At the evidentiary hearing, counsel could not recall why

she put Glenda Brooks on or elicited the above mentioned testimony. (EH. 138).

Counsel theorized that it was because she wanted to show that Brooks’ only wanted

Calhoun to leave because her granddaughter was there and she did not want an

additional person in the house. (EH. 138). Counsel’s explanation is nonsensical. It

was totally unnecessary for her to make this point, as Glenda Brooks never testified

that she asked Calhoun to leave her house. Counsel’s decision to call Glenda Brooks

and elicited harmful evidence from her was unnecessary, patently unreasonable and

was deficient performance.

The circuit court’s finding that counsel was “trying to show the inconsistent

statements of this witness while also attempting to get this information to the jury .”

is not supported by competent, substantial evidence and is actually refuted by the

record. (PCR. 2587). When counsel recalled Glenda Brooks, she did not impeach

her or do anything to show a prior inconsistent statement . Counsel’s attempted

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impeachment of Brooks with her prior inconsistent statement took place during

cross-examination, when Brooks was called by the State, days prior . (T. 795-98).

Nor was counsel’s purpose for calling Brooks to get “this information”, i .e.

Calhoun’s other statements, to the jury. On direct examination, counsel only asked

Brooks questions related to her asking Calhoun to leave. (T. 1075-77). It was not

until the State started its cross-examination of Brooks did counsel make an argument

that the State opened the door to her being able to ask Brooks’ about Calhoun’s

statement. (T. 1078). There is no evidence that counsel knew what the State was

planning to ask on cross-examination prior to her calling Brooks.

Counsel’s decision to elicit this harmful evidence caused prejudice to

Calhoun. Tiffany Brooks’ testimony established that Calhoun spent a substantial

amount of time in the Brooks’ home on the morning and afternoon of December 18,

with no objection from Glenda Brooks. It was not until Glenda Brooks learned of

the missing persons flier that she became uncomfortable his presence, a fact the jury

would not have known but for counsel eliciting it . The jury could have easily

concluded that Glenda Brooks was afraid of Calhoun and believed that he did

something wrong, tainting their view of him.

2. Counsel rendered deficient performance that prejudiced Calhoun by

eliciting harmful evidence from Michael Raley

At trial, counsel recalled Lt. Raley in her case-in-chief and elicited from him

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that a license plate bracket and a piece of cardboard with a tire impression and oil

stain were found in a pole barn in Alabama that was owned by Calhoun’s family. (T.

1083-84). During the State’s cross-examination, Lt. Raley testified that members of

Mia Brown’s family told him the bracket was consistent with the one on Mia’s car

and that her car had an oil leak. Lt. Raley testified that he could not conclusively

say that the tag bracket and oil stain came from Mia Brown’s car. (T. 1089-92). This

testimony served no purpose other than to place more damaging evidence in front of

the jury.

Counsel testified that she elicited this harmful evidence because “[E]verything

looked just a little too made up. Because everything was winding up on property of

Johnny Mack . . .” (EH. 148). If this was in fact counsel’s strategy, she failed to

exe

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