Appendix — ANTHONY R. PEEK V. FLORIDA (No. 82-5909)

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

**.

RECEIVED

case to. BA-SIOT DEC 17 1982

Obra OF THE Geek

IN THE L_SUPREME cover, u.s,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ANTHONY RAY PEEK,

Petitioner,

ve.

STATE OF FLORIDA,

Respondent .

APPENDIX TO

ike ian

+ : » al

TP a Pig 7,0.

ri i * « -

. ae * *

*»

* *

[- Supreme Conrt of Florida

¢ - 3

-— e i. :

: sccees +f

: a a ra ae oy

_semnste, RORRA A :

“ eeces 8 ~~ 5 -

f os mo. $4,226 13 Gep

“ar enemsneroncecoon uneaaate

i so “ae . “ “+ is 8

* i Pf « Taw ae es

2h. Sci aites +) Ce

PER CURIAM

Appellant Anthony Ray Peek was convicted of first degree

murder, sexual battery, grand larceny end burglary. The jury

commanded and the trial jesge imposed o sentence of death on

che muster charge. Jurisdiction veows in this Court pursuans :

co article ¥, section 2(b) (3), Flerids Constitntion. We afficn

the conviction and sentencs.

fena L. Carison revurned to ber hone in Winter Eaves,

Florida, following « visit with relatives at approminacely 9100

p.m. on May 2h, 1977. At @:30 a.m. the following sorning, Ure.

cariscn's kody vas Giscovered in ber bedroos with ber robe and

part of « bedsprea/. tied tightly areund bar seck- the screens on

rT rr

ce door to the. porch and on the Gocr leading from the porch

. to the house hed been cut, and a piece of stocking concaining

a strand of pegroid baixs wae found in the garage. The victin’s

pajane botwas omtained biced and seminal fluid stains. Bo

tingerprisce were found in the house.

G mey 22. 1977, police located ttre. Caxison's suvomenile

at a lexeside park approxiaately one aile fron ber hone. Ta.

door so the driver's side was locked, the passenger oor was B0%-

ete ii

«= *

‘“ Dal 9 AR ee — ee i 2 > wie Wee oltre a Sh eP i Aiea

* m ng

“ on es ;

* oe yi é 4 .

ae is «

2 * om dg ® Ve

i 2oeereert ~ uy en

eo Wee ie etl codemntandiintatade thaliana

6 Cg Fe i be

wi og

—Ai

dhe kaye to the sutemobile ware in the glove compartment.

' Fingerprints were found on the inside of the driver's side

prompted by allegations that Peek had bees going door

door seeking exploynent in the Winter Saves ares, Officer Donsslly

of the Winter Saven Police Oeparcsest interviewed him several days

after the surder. Appellant lived in « supervised halfway house

at the tine of the crize. Be tolé Domselly that be had revarned

to the halfway house before 11:00 p.m. on the aight of May Zh,

1977, and hed not been in the vicinity of mrs. Carison’s heme oF

of the lakeside park. Appellant voluntarily pernitted the

caking of Bis fingerprints and the-extrsction of hair samples.

che baie samples were sent to the Sanford Crise Lab for comparison

but were lost subsequent to the testing.

Appellant was tried in the Cirouit Court for Polk County

ra?

i ae (ete

possible to say that Go hairs are identical, the hairs cf

j cnly approximately two out of every 10,000 parsons exhibit

fa EES SS AA the blood and seminal

i Ciaié stains taken trom Mrs. Carlson's pajenss were from an

: individual with type © secretor bleed) appellant is « type ©

eacretox . the evidence further revealed that the finyerprints

found inside Mrs. Carlson's car matched those of appellant.

Appellant took the stand and, with one significase

exception, yeiterated the account first given to Officer Donnelly.

* he contradicted, however, Bis pricr assertion that he was 0%

: dn the axes where the victin’s car was found on May 22, 1977.

appellant testified instead that on that sorniag he rode Bis

picyele te the lakeside park. Moticing « car parked nearby with

Wek Bee

-2-

2 te ee

x . a ees * ‘ ai + 5 melita uit am “¥ sami. i

saad eacoliv sey 2 ree ee ee «ep . OT Peder Wee

E * : ; ‘ me 4 ‘

, 4 ae we Fens Se one.

"3 ret ; ‘ ; om .

, Z ¢ see MA a P me

a ae se Migs ee? te ye OFS a” oe Oe A at ea

ee a? . os ges ee Lite, my fe Ry ‘a eS * : ts. ee 7 a ..

a ony ; : : : s a fod

re * ee ie 6 ee ; . ae

the door unlocked, he opened the door and searched the glove

[ coupartnens. after which he rode bis bieyele back to the

halfway house. .

[ qhe jury found appellant guilty ef ali four offenses .

and returned « recommended semtescs of desth on the suréer

[ ’ gnange. Prior to sentencing, defense counsel's motion for

appointment of experts to examine appellant as « sentally

disordered sex offender was denied. On May 2, 1978, the court

ft - adjudged appellant guilty ad sentenced Aim to death for firse-

deyree surdur. the court also imposed a life sentence for the (

qrounds. Be fiest asserts taat the prosecution failed to

establish an adequate chain of custody of his hair samples. the

evidence at trial revealed that on July 7, 1977, Officer Later

veceived four hair samples fron appellant which he sealed is

four separate plastic bags. The samples were transferred to the

Sanforé Crime Lab. Stame Bass, a aicroenalyst at the Sanford

, teetified that in December of 1977 she received several

j eesled plastic bags containing negreid hair. The sornsmintal

Aatheny Ray eek. the begs 414 sot appear tc have been ‘opened, .

[ :

Appellant challenges his convicticn on essentially three

[! : campared with, or ia any way edultarsted.°

. Relevant physical evidence is admissible unless thare is

| an indication of probable tampering. frederibecn vy. state,

: 422 So.24 217 (Pla. 34 DCA 1975)) Semeon vy. Seats, 228 So.2d

294 (Fla. 24 DCA 1969). Ageord, United Staves y. Deushery,

502 7.24 1019 (Sth Cir. 1974). the record bere reflects so hiat

of tampering, thus the trial judge 414 act abuse his discretion

: ia permitting the introduction of the haix comparison analysis.

Appeliast’s assertion that he was denied @ue process by

ietreduction of the baits samples because their subsequent loss

tat

. i

Lk Remind ie. 6

prevented an independant inspection is similarly unavetiing.

while there is support fer the proposition that « criminal

defendant must bave an opportunity to inspect physical evidence

which is te be used against him, Brady y. Narvland, 373 0.8. 83

1963); Barnard ¥. Rengerson, S14 7.24 744 (Sth Cie. 1975): 7

Johnson ¢. State. 249 Go.34 $70 (Fla. 24 DCA 1971). gure, discharged

280 $0.24 673 (Pla. 1973), such « right, Like most others, may be

waived. In this case appellant made demand for discovery of

reports and results of scientific tests and experiasnts, to

which the state responded vith a list of ‘hs hair samples and

lab reports. Appellant 4i@ not, however, move the trial

court to inspect or test the bair specimens. Se canact now

claim entitlemest to a right which in the first instance he

chose to forego.

Appellant next contends that the evidcnce failed to

establish Bis guilt beyond « reasonable doubt. ff properly

cites McArther v, State. 352 $0.24 972 (Pla. 1977), prohibition

denied sub pom. McArthur vy. Bourse, 398 So.24 132 (Fis. 1978),

Bourse. 438 0.5. 902 (1978), for the tien thet cirewe

etantial evidence will sot sustaia a conviction unless it is

inconsistent with any reasonable hypothesis of innocence. aggord.

Davis y. State, 90 So.24 629 (Fla. 1956). In applying the standard,

ime versice of events related by the defense aust be believed

if the circumstances do not show that version to be false.

havo vy, State, 7L $0.24 #99 (Fis. 1954); Bolton v. State, 67 Fis.

63, 99 So. 246 (1924).

The case against appellast is wonecededly circumstantial .

fut we are setisfied that, when considered in combination, the

evidence relating to the matching fingerpriats, the hair

comparises, and the blood and semen analysis enabled the jury

to reasonably conclude thatappellant's guilt ves proven beyord

a reasonable doubt. Koreover, appellant's only reasonable

hypothesis ef innocence, that he entered the vietin's car st

the lakeside park the sorning following the surder, was

’

ian

a Be

effectively éiscredited by Officer Donnelly's account on rebuttal

: of appellant's criginal assertion that he had sever heen in the

wicisity of the park. tm view of this prior inconsistent stete~

pent, the jury wes justified iv disbelieving appellant's version :

of events. :

-9iiny We have considered the remaining iseues celated to

sppallant’s conviction, but find then to Se without marit.

m= —

Turning to the sentencing phase of the trial, ws wast first

consider whether the trial court abused its discretios in denying

defense counsel's motion for appointment of experts to examine

——« -- appellant as @ sentally disordered sex offender. fection 917.14,

Flocids Statetes (1977), provides:

qniess the record reveals « clear abuse of jud’ cial discretion.

Labec vy. State, 365 So.24 149 (Fla. 1978); Byuckaby 5. Shake,

. ° 343 $0.24 29 (Fla. 1977). Mo euch error hes been demonstrated

= ie this case.

te its charge to the sentescing jury on the proper sonsider~

| ation of aggreveting and mitigating circumstances, the trial court

: instructed that *[tihe agyravating cireustances which any be Z

| considered, are Linited to such of the following as may be

eetablished by the evidence . . .* and “(tine mitiguaiag

circumstances, which you say consider if established by the

: evidence, axe these . . .* (emphasis supplied). Appellant

maintains that this charge unconstitutionally limited jury

Me consideration ef mitigating factors to those stetstorily

enumerated. We Go not agree.

al ~~

Si - e »

, ms gta oe * : tee le ak PT oO

gt B -

perhaps the clearest and sost constant principle enanating : 4

- grom the sonetines cbecure light of furman y._ Georgia, 408 0.8.

238 (1972), and ite progeny is that unbridled discretion ts

NR RN A Rs a

discretionary sentencing. wopuided 31 \Stcass,

« viglaees she Sighen Se. ti

| at 257 hy ioe)» i

tresakiebl saqeene. wT Se 310 (Seawart. J-.

: ag), sad be ~ and afforded

genes Sastal basis Soe the teow

eases in which it (was) the resem

in weich it (wee) mot,” §¢,, at 329 (White, J-+

Lockett vy. Ohig, 438 0.5. S86, 599 (1978). It appears iacontest~

able, thes, that to o large extent “the sentencing suthority’s

discretion faust be) guided and channeled by requiring examination

of epecific factors that argue in favor of or against imposition

of the death penalty, thus eliminating total arbitrariness asd

capriciousness in its imposition.* ~rottits 1. TisEsés- 428 9.5.

) 262, 288 (1976).

Recurring to the charge gives in this case, wenete at the

cursct that it in so war restricts the jury to s consideration of

che statutorily esumerated sitigatiag circumstances. Lindos .

che instruction on mitigating circunssasces, vhen reed is

conjunction with the express Limitation on consiéersion of ,

eqyravaning circumstances, advises the jury that the list of

statutory mitigating factors is not exhaustive. See foneert. .

State. 263 So.24 696, 700 (Fla. 1978) (on rehearing). tt strikes «

eal i i aaa i i <n eae

dn Gevermining the fairness of a Life or death sentence, thereby

assuring thet the death penalty will be applied in « sonsisuent

and rational sanser. Ware we to sanction an instruction which

> -

: “tt is quite simply « halisark of our that

: geries be carefully and adequatel ae ok in thelr Galiberstions.”

a Gregg ¥. Georgia, 428 0.8. 153, 3 (1976).

1 — 3

established ac effective guidance for the jury ia consideriag

- circumstances which msy aitigate egainet death, we would surely

hrecthe lize into itr. Justion Rehnquist's admonition that such 4

procedure would “not guide sentencing discretion but (vould)

[ totally unleash it.” Lockett v. Ohio, 438 0.8. at 631 (Rehnquist,

; » @oncurring in part and dissenting in part).

f? Contrary to sppeliant's sssertion, the instruction given

hare is consistent with Lockett vy. Ohie- Leckert holds omly that

i} : & sentencing body must not be preciaded from considering, as ©

mitigating factor, aspects of a defendant's character or record

and any of the circumstances of the offense that the defendant

peoffers as a basis for a sentence ieee than death. As soted

| above, our death penalty statute does not limit considerasion of

mitigating circumstances to those statutorily csumerated.

Moreover, unlike the Ohio statute invalidated in ‘Lockets. the

| aitigating circumstances in Florida's statete direct the jury's .

attention to many aspects of the defendant's character aad the

circumstances surrounding the offense. “hile we de not contend

that the statutery mitigating circumstances encompass every

3 element of « defendant's character or culpability, we do saintain

‘ that the factors, when coupled with the jury's ability to

consider cther elements in mitigation, provide « defendant in

Florida with every opportunity to prove his or her entitiansns

ee © sentence less than death.

sun tulad Sates exits Cuan Senttegs Of Gunn tus GuleNe of

wets ©

aehe

il. As ao cireumatasce ender

Flerids Statate 441305)

ta) the capital felony of Marder in the First

was committed anenony | Peek

os une on

Pn we

: Section 921.141(1), Florida Statutes (1977),

| that @Guring the the sentencing proceeding. “evidence may * presented

; vise Fy

a cigs nett arene th Aw ga oli

Lo Peet Sg gees eS

create abe cn ee : gations ne: gs panne Swen

ik ; te

ee ee + (ag * A ¥

oo See 5 ie kbs: 5 ae Taek - Sere

: : > oe; bade “= * e Sans

* Sig ee ee ii ¥ mS ee eR > at

"Wore a io wees,

iden oe mecia EE Pin

ay See tly. 4

3 hoor

Mork ae

ke nti ae ="

3 ANTBONY RAY PEEK

prior criminal ectivity and, therefore,

rejects Statutes $21,141.16) (a)

circumstrace. .

921.242 (6) (b) ae a witigating circumstance.

(e) the victim, Erna b. Carlson, wae sot © :

4 in Defandant's acts of :

% in the

eupsection,

= | Fissdée beseuese weit nents) te) a0 6

- rejects

, Stavates, a8 4 at

age le ve as @ Gitigeting

. circumstance . .

as Is conclusion, the Court finds that there are sufficient

ciscumetances to ft the imposition of the

. death ty. There are no cirrumstancee .

The clearly demonstrates that Erna L. Carlson

was the victin of a cold, cruel and heartless killer.

crime should have been considered 4 mitigating factor. There is

The judge subsequently corrected this

appellant wes sinetew at the time of the crime, although his

| - eee on Pee oe net # aitigeting circumstance did

$ 922.242(6) (g), Fla. Seat. (977).

’

iil

erie. 1977). whith Kenaen v. State, 322 Go, 24 40) (Fla. 1979).

the exial judge expressly considered but rejected eppelians’s o7s

as 4 mitigating tector. The record supports his finding.

Appellant contends it was error to regard appellant's

probationary status ss seing within the eqgravatiag ¢iccunseanse

eet forth in section 921.141(5) (a), Flerida Statutes (1977),

nich allows consideration ee an egyraveting cireustasce the

dace that the capital felony wae “committed by © person under

sentence of imprisonment.” the sppellant esserts thet 4 grant of

pronation 19 not o sancnace of iapeioomens becsece ¢ pronesionss

prison confinement. Qader the tacts of this case, we

considered to be « sentence of imprisonment. An exception

arises, hewever, if the onder of prokation includes se 6

ecndition « cern of incarceration and the eapival felony ts

ox shold be incarcerated. “s

ox indeterninace tam of years, (h) persone

probation and are sot at the time of the

capital offence incarcerated or escapese fron incarceration 40

not fall withia the phrase “person under sentence of

teprisennent’ a6 set fortn in section 921-162(5) (a)

Consequentiy, this eqgraveting cizcunstance wae improperly found

in the instant case.

the trial court further found es an egyreveting

cizewnstance that appellant hed bean convicted of felonies

siavoiving the use or threat of violence to the parson.”

: “10 .

tee

hel

®.

‘ee

rT oe

oS oes

—_—

§ 923.243(8) (b), Fis. Stat. (1977). Appellant urges that since

enece prior convictions were oo appeal at the tine of suntensing,

eney enanot be considered “convictions” fer purposes of section

O21. 44208) (>), We Giengres. Appeliant had previously bees

convicted of burglary, sexual battery, and robbery. They were on

appeal ot the tine of sentence and ware subsequently aftisned.

Pesky, Stage, 374 #9. 24 106 (Pia. 24 OCA 1979). These vere in fact

convictions at the time of sentencing. Because thease convictions

wore affirmed, their consideration by the trial judge is the

instant case was proper. te 40 not have the problem which would

arise from the consideration as an aggravating cireustance Of «

eonvieeion valid st the tine of sentencing, that is subsequentiy

peversed and vacated by an appellate court.

dhe appellant next contends the trial court wes siso in

error in finding that the capital felony was commitesd for

§ 92.242(9) (2), Pla. Stat. (1977). Aithough it

iLlieit sequisition. The sore reascuable inference is that

cepoiiane svoie the car in onder wo quicken Bis eecepe fron the

scene of the surder. Considering all the circumstances. the

evidence Linking the surdar to 6 eotive for pecuniary gain is

tavefticient to eocablish this egeravecing never beyond « ‘

peasensnlie doubt.

the teial court's findings with respect to the tuo

remaining eqgrevating cixematances are fully justified by the

record. th de enretuted that the capital felony was committed

@uring the comission of @ sexual bevtery- @ 923.141(5) (4), Fie.

seat. (L977). purther, the medical tastinony clearly establishes

chat fers. Carison's horrible suffering at the hands of ber

axtacker was “especially heinous, atrocious, or erusl.°

§ 922.242(5) (h), Fla. Seat. (1977). Tha, we have two clearly

valid aqyraveting ciremaetances, one consested bus valid

eqyravating cixeunstance, and no mitigating Cizmumecances. he

#Li- ©

eo i ee

POM aowe® cians pine, ane

—:

* vee a 5 pads Min” ear

» i we eS - aig ee bali + Sato te pete See oa : ve

* * :

* . ‘ on es ‘ 1%

. A ‘

& . “sé ‘ * * < * ee

: "

. « « : x % ¥ a eM

* * i ja é £ ke OPE a aa a! =

% < s © eo ~ = 8 * sts wos. eer ec ant —_ oe

nae ? aig ~or ieee apes

« te hed “i: * : :

4 a, A.

+” aes

sine - —

, OP te ; . a a ae”

: i a Pg

° oe i

Lo. . Mader i * : ous ees es

“ og OS ee eae oe at Lee ed ae Sa is

ft " ‘ . i : ay

liad * «+ * * bY

oo. ae waste 4 ee é i : one ‘>

é ay Sct ah got ea m ~ _ ae _ me + @ a, tt

iss 4, :. bs

Socal she “eye os

i eld ets. taba et en air re ey ** $

“me min ‘se ee a) oF, = id Tea Latte ~~" az oy

; * « ‘ae sapege: tne hen ~* oo ‘ a bails Sy oe 3 ce,

BK ie en s ‘ eh é eae * «

* ay ja ee : tts eo” eee * ”

ey i * “ : : ee

. ae os ae” x

Ase yet See oe ay ae.

‘ is. ei *y < MS ee a

. M4 a < enti ; o %

i or ara eo ° efron cero tea ~. ee ee

¥. - :

te ” \

* Z

* “~

find that the trial court's iuproper consideration of the two .

aggravating circumstances concerning pecuniary gain and

commission of the offense while on probation does not render the

eentence invalid. Sargrave vy. State. 366 So. 24 1 (Fle. 197%); -

Eliedee vy. State, 346 So. 24 998 (Fie. 1977). pen an

independent review, we tind the evidence and record clearly

justity the imposition of the deacs sentence. 4

Aecordingly, the judgment of guilt and sentence of death :

exe afficned. ;

te is oo ordered.

AOKINS, BOYD, CVERTOW and ALCE@G. J7., and VAN, Jssociate Justice.

SumpeeRG, C.J.. Oiseents with an opinion

EVGLAND, J., Oiseents

rasagrocene meter geargt mannan ce PIO IEE AR EO OP A ech " ad oT JO RE He RIE oe ii oa atneaee

; | : : :

Sai = [rte ae. 2 eA7 ui

. ' GUMDSERG, C. J.» dissenting. '

. uiciisdiihe Sanacns meus woe megeeenpis eeliaaanh a i

: |

appellant's conviction. White I am not ummindful of the

atrocities committed upon the victim in this case and the

principle of lev that even is 4 capital case 4 conviction say be

based wholly upon circumstantial evidence, severtheless, pursuant

eo the obligation imposed upon me by section 921.141(4), Florids

Statutes (1977), and Florida Rule of Appellate Procedure

9.1460(2), I have reviewed the evidence in this uause and

devormine that the interest of justics requires ¢ reversal. ta

wy mind the evidence is insufficient te prove beyond & reasonable

doubt that appellant wes the perpetrator of this heinous crime.

the baix, blood and semen analysis coupled with the fingerprints

found in the victim's euvompbile are simply insufficient te

population and the inability of the state to establish that the

fingerprints were placed in tae sutomobile at the tine the crime

wan comme ched . Ghave vy. Raves. 333 0.24 $1 (Pia. 4th DCA 1976);

winiiane v. State, 36% $0.24 595 (Fis. lec DCA 1973), gers.

denied 322 $0.24 555 (Pla. 1975); Milkerson v. State, 232 $0.26

227 (Fis. 24 Oca 1970)- Agesiiant explained the presence of his

fingerprints in the automobile and that they vere placed thars

che sorning after the crime. This testisony was discredited by

. cestimony of Officer Connelly to the effect that appellant had .

wede @ previously inconsistent statement. Rowevar, Officer

Donnellys testimony 414 not serve to place eppellant's

tingerprints in the sutombiie at the time the criss was ‘

comitted of at 6 tine shortly thereafter: Sis teetincsy war

ecthing sore than impeachment.

i cs es Wilieaen tatiana, $ Sek

compelled to reverse the judgment of conviction.

purthermore, I dissent from several conclusions reached by

the majority with respect to application of section

AL AO A LLL LLL EAE NE REG

-— &*

- “ F

922.341(5) (a), Plerida Statutes (1977). Fiest, = ceject the

majority's conclusion that section 923.1461 (5) (a) permits :

*Lj- *

’

}

* ee a NN AS Nae Als

we eee ee et Baws, ae wale Ot toe ee Fae OS ae o RE el er ee ge Gente Ome

* plagit

nckead

‘i

‘ Nene

ia s

‘ x 8 ee

«tg

* *

‘ow

eonsiderstion of « defendant's probation status at the time of

commassion of a homicide. That section provides that it is an

aggravating circumstance if the capital felony was “committed by

* person under sentence of imprisonment.° (Emphasis supplied.)

A grant of probation is act 2 sentence of imprisanmsat whether

incarceration is 6 condition ef probation er set. The

@ sentence of imprisonment and probation. Compare chapter 948,

Plorida Statutes (1979) (probation) vith chapter 947, sectica

$47.16, Tlerida Statetes (1979) (eentence). Tt cannot be

presumed that the legisiature wes ummindful of this distinction

when it enacted section 921.141(5) (a). <% aay be thet a person's

ectual state of incarceration or escape therefrom at the time of

commission of a capital felony is just as walid a consideration

for imposition of the éeath penalty whether that incarceration is

by virtues of 4 sentence or es 4 condition of probation.

Severtheless, that is « legislative decision, and I would not

presume to impute an intent to that body which is so contrary to

its consistant delisesticn between sentence and probation.

Second, I cammet acoept the proposition that 4 sonfinal

conviction of « violent felony msy be considered as an

eqyravaciag circumstance under section 921.141(3) (b), Florida

Statetes (1977). This question has sot previously been addressed

Girectiy by the Court. But see NcCree vy. State, Ho. 45,894 (Tia.

Get. 30, 1900) (ples of guilty, as opposed to a sentinel

comvietion, to « visiest felony without edjedication of quilt an

aggravating circumstance under section 921.141(5) (bi). Por aid

ia determining what cometitcutes « “conviction” under this

section, I would utilize the interpretation of that term under

section 775.004, Florida Statutes (1975), our habitual offender

statute, because the purposes of doth that statute and section

$21.141(5) (B) are similar--to enhance punishment due to pricr

eriminal convictions. Under section 775.684, a prier convicticn

is sot final until eppellate review has concluded. Joyner v.

Stage. 158 Pla. $06, 30 So.2d 304 (3947): Garrett vy. State, 335

$0.24 876 (Fla. 4th DCA 1976); Coleman vy. State. 281 $0.24 226

“Leo

= *

% ~ : . i

x £ x ee 4

- gt a Oa “ *

PR Be .

at ave pee ‘ .

v - * 2 &

Pty * cae 0 ys o ‘ ah

« if ‘ PRR 6 Zs } er ‘ ge Say

ee d a we aS a . Re *

. peg * = apt at Aas oe ‘ ee ee

. = €". Same joe ates Ps : ‘ eat “hE .

i :

. . a eae 28,

* & e w ee ~ ah Re * * - ae hoe “iaig S

ae os - :

? we cS - eae’ io. me se ae « eh _*

_* nfs nor . mo ent pat SF

* : : 4 : : We 4 é

~ “ cy ‘

PO eg to eg — ‘°

; -

St ee om

Kijgg ia : *

* »

* ¥ aa ee “et

— ef oe

pet.

Foe wt

ee 4 . 4

* (Pla. 24 DCA 1973),, Im wiew of the similarity in underlying

= . Philosophy between the two statutes, and in view of the awesome

“8 finality of the death penalty, I would hold that for purposes of

section 921.141(5) (b) a prior conviction may sot be utilized ia

F aggravation qntil Girect appellate review has concluded. I am

pen wapersuaded by the majority's reliance on the fact that the

} comvictions in this case were affirmed pending this appeal. What

if they remained unrescived on the date of this opinion? It

4 r eorurs to me that the wisdom upon which section 775.004 is

| bottomed should set be lightly regarded. Secause of the unique a

_ attributes of the death penalty, we have engeged in «4 sarrew

construction of chapter $21 when « question as to its meaning has

o arisen. See Elledge vy. State, 346 $0.24 298 (Fila. i977) (section

$21.141(5), Flerids Stetuces (1975), construed to permit only

consideration of enumerated factors as aggravating

: circumstances). Adherence to this rule of construction indicates

agen to me thet finality of conviction for purposes of section

| 922.141(5) () sheald be at least ae stridgent as for section

“ 773.084, where the consequences are sot early so grave.

Eucla, J.. Concurs in so auch of this dissent as would reverse

appellant's comvictias.

4 . *

“1s- .

j °

Als”

. senitianins -i aeaies ee em ie ”

sks ———a ks FO 2 ee ee ee RI Me eR rete em oe clipe

“ hing the eit. Pete ie Og etn Lt dug, 4 ° “tei “age

adhe eer & meee a - ie : : . ae ; ‘ *

* a opted c ea, o ee

* IN THE SUPREME COURT

OF THE STATE OF FLORIDA

ANTHONY RAY PEEK,

Petitioner,

vs.

Case No.

STATE OF FLORIDA,

Respondent.

“— - oF © © of oe 88

REQUEST FOR LEAVE TO FILE PETITION

FOR WRIT OF ERROR CORAM NOBIS

Petitioner, Antheny Ray Peek, moves this court for leave

to file a petition for writ of error coram nobis in the Circuit

Court, Tenth Judicial Circuit, “a the State of Florida. This

request is based upon the following grounds:

Introduction

1. Petitioner Anthony Ray Peek was convicted in the

Circuit Court of the Tenth Judicial Circuit, Polk County,

Florida. on April 13, 1978, of first degree murder, sexual

battery, grand larceny, and burglary. On May 2, 1978, that

court adjudged Petitioner guilty and sentenced him to death,

a consecutive life sentence, and two consecutive five year

sentences for the respective offenses.

2. On October 2, 1980, this Court, by a 5-2 margin,

affirmed the judgment and sentence of the trial court. Peek v.

State. 395 So. 24 492 (Fla. 1980). ‘This Court has jurisdiction.

Hallman v. State, 371 So. 24 482 (Fla. 1979).

3. The State presented three pieces of evidence incrimi-

nating Petitioner at trial:

a. Blood and seminal fluid stains taken from the

‘the oaneg of Supreme Court Justices was 4-2, with Associate

Justice Vann joining the majority, and Justices Sundberg and

England dissentina. The dissenting justices maintained, inte

alia, that therewasinsufficient evidence to support the conviction.

Alt

victim's pajamas indicated the presence of type "Qo" secretor

- blood. According to the trial testimony, 33% of the population

has type “O“ secretor blood, including Petitioner. *

b. The victim's car was found the day after the crime

approximately one mile from her residence at @ park, and near

her place of employment. Numerous fingerprints were found inside

the car, including one that matched Petitioner's. Petitioner

testified that, the morning after the crime, he saw the unlocked

car while eating breakfast in the park at which the car was found,

and he decided to “look around", probably with burglary in mind.

However, he testified that there was nothing worth taking, and he

left. This fingerprint explains how Petitioner became 4 suspect

in the crime. It was the only positive evidence linking Petitioner

to anything having to do with the crime, although it does not link

him to the crime itself. :

ce. A piece of stocking containing 4 single fragment of

a strand of negroid hair was found on the floor of the garage of

the victim's home (although the victim's body was found in the

bedroom). An employee from the Florida Department of Law Enforce-

ment testified that hair samples obtained from Petitioner were

microscopically consistent in appearance to the fragment found in

the stocking. She further testified, as noted by this Court in

its opinion, that “various studies by many persons now working in

my field have determined that there is probably no more than two

people out of every ten thousand persons who will exhibit exactly

the same characteristics in their hairs" (R-453). We now know

that the hairs examined were probably mixed up, the comparison

was incorrectly done, and the statistics relied upon are "grossly

in error". ~

2we now know that 54% of the eS ae could have left the

stains. Because the victim was also blood type “O", the presence

of the "0" factor could have come from her, and the person who left

the stains could have been any blood » hon-secretor status.

In total, 54% of the population could have left the stains. Never~

theless, this fact could and should have been discovered at the

time of trial and thus, concededly, does not constitute a valid

ground for the issuance of a writ of error coram nobis. Hallman

v. State, 371 So. 24 482 (Fla. 1979).

*Avetitioner's explanation was rebutted Officer Donnelly

who testified that Petitioner engi pe derreg told him that he

after the murder, he responded “a lake” (R-673). When asked, at

lake?", he said, “I don't know, you know, one from the other, because,

you know, I am not from Florida.

{ police officer that he had not been to the area referred to, he

“thought he was being truthful: he had been there, he simply did

not know the name of the particular lake, of whith there are many

in Polk County. -

Al7

Count I--The Employee Evaluation

4. The hose containing the hair fragment was received by

the crime lab in June, 1977 (R-504-505). On July 7, 1977,

Petitioner's hair sample was delivered to the lab along with

samples from other persons. In December, 1977, some six months

later, a hair sample which was purported to have come from Petitioner

was received by the analyst (R-505-506). Nobody could testify where

that hair sample was for those six months. Furthermore, the analyst

did not say where or how the fragment was stored from the time it

was discovered in June, 1977, until it was compared to the hair

of Petitioner in December, 1977. This Court held that these

failures in the chain of custody aia not require reversal because :

there was no indication of “probable tampering". Newly discovered

evidence reveals probable tampering. This same newly discovered

evidence also reveals that the heir comparison was performed ‘in-

correctly and was based upon antiquated techniques.

5. This newly discovered evidence consists of an employee

evaluation given the analyst about 2-3 months after trial (attached

as Appendix "A*). It raises serious allegations of probable,

though unintentional, tampering. Upon rating the analyst as

“unsatisfactory” in evidence handling, the evaluation states:

Evidence Handling oa

Evidence handling is one of Ms. Bass’ most proble-

matical vernimn ~~ not —— oy have —

proper conception o cial nature o

evidentiary items and che peablena that could be

created when the integrity of the evidence is

stioned. On man it was noted that

tems of evidence con ng potential trace evi~

dence were left in an uncovered condition on 4

laboratory table top overnight. This failure tc

protect the ite by repackaging m when not

ee nvoived in an analysis leaves a VER}

STRONG PROBABILITY OF EXTRANEOUS CONTAMINATION )

+ on > ee he a ‘bars hed - iad - | 4

-ROSS-CONTAMINATION AMONG ITEMS, and possit

< 6 ace fr. Or

Ms. Bass fails to realize that the aeearertoy

the evidence must be maintained even after th

3enis “very strong probability of extraneous contamination [or]

cross-contamination* is even stronger when the subject of the

analysis is hair because of the bighiy mobile nature of hair and

the serious danger of mix-up there . It is entirely possible

that the analyst compared one of Petitioner's hairs to another

of his hairs or that one of the items compared came (continued)

“3-

laboratory examination is complete. In a recent

case, Ms. Bass conducted a paint comparison between

ie an automobile fender and a . At the conclusion

of her laboratory examination, Ms. Bass stored these

- items of evidence outside in back of the laboratory

in an unpackaged condition, and in an unprotected

area, thereby subjecting them to the frequent rains

occuring at that time of year. These items quickly

- became dirty and rusty before she was directed to

protect them by the microanalysis section supervisor.

(Emphasis supplied.)

6. This raises the “very strong probability of" tampering,

albeit unintentional. The evaluation also raises questions of

equal seriousness regarding the analyst's abilities to perform a

hair comparison.

Job Skill Level o

Although Ms. Bass has approximately three years

experience in the crime ago pane, be her technical

skills in the analysis of evidentiary materials is

not commensurate with this time period. Although

her skills in basic microscopy appear adequate for

a first or second year microanalyst, she does not

utilize the more advanced techniques that should

have been acquired in three years. The fact that

she uses a number of antiquated criteria for th

7 AS scale counting,* show

Ms. Bass has not demonstrated the knowledge of in-

strumental methods of analysis usually observed in

third-year microanalysts. A lack of knowledge and

experience has been observed in her use of IR, PGC,

AA, and other instrumental methods. The inability

to choose pig omar methods of instrumental analysis

of knowledge needed to competently perform

these analyses should be considered an extremely

serious deficiency.

(Emphasis supplied.)

7. The analyst lost the hair immediately subsequent to

testing and so there is no opportunity now to go back and

y demonstrate conclusively that it was not consistent with Petitioner's.

However, the evaluation shows that the analyst's continuous failure

to properly care for the evidence, in the words of the Florida

from another suspect, a lab employeé, one of the black police

officers at the scene, or one of the thousands of persons who

: could have left a hair on the floor of the victim's garage, such

as service persons. fe

4onis was the method utilized in this case.

Department of Law Enforcement supervisory personnel, i aes a

very strong probability of extraneous contamination, cross~-con-

tamination among items, and possible loss of trace evidence."

Thus, Petitioner can now show, through this evaluation, probable

tampering, albeit unintentional, with the evidence. Also,

Petitioner can show that the aralyst did not have the abilities

to accurately perform an analysis. In a study published months

after the trial, it was found that one of three inexperienced

hair analysts misidentified common hair types.°

Count II--The Statistics

8. At the time of the trial, there was only one experiment --

in the field which purported to establish statistical probabilities

for matching hair. This experiment arrived at a statistical

probability of 1 in 4500 that two hairs will match. Based upon

this experiment, ° the analyst testified that “various studies by

many persons’ in my field have determined that there are probabily

no more than two people out of every 10,000: persons who will

exhibit exactly the sase characteristics in their hairs." Some

months subsequent to trial, the author of this experiment sig- :

nificantly qualified it in a further work, and conceded that the

statistics would not apply to a case such as this. Then, in |

April, 1982, the latest end only other article on the subject

(attached as Appendix “C") concluded that the first experiment

was totally incorrect:

Spetitioner can also show that the witness was seriously mis~

taken in her oe page hse op the fragment was consistent with

Petitioner's hair in 30-35 characteristics. Only 20-25 such charac-

teristics exist. Nevertheless, this knowledge was available at the

time of trial, and, admittedly, is not a propert subject for a writ

of error coram nobis. Hall v. State, supra.

Similarly, it — Forget nted out at trial that the fact

that the hose upon whi © was found was found on the floor,

@ place where numerous ago ps may be picked up. However, this, too,

was 4a proper matter for trial, Bs for writ of error coram nobis.

see affidavit Brg wom ge “B"). The affidavit states that the

witness’ testimony “primarily” spon this experiment. How-

ever, Petitioner 1 prepared to prove that no other experiment

or study existed.

This simply was not true, but, again, it was the duty of

the public defender to cross-examine on it. He did not. —

In the seven years that have elapsed since the

publication of the first article, there has been

no attempt reported in the literature to confirm

Gaudette's work or criticize his treatment of the

data... . [The experiment] claims to provide

first estimates of certain probabilities useful

for the individualization of — —— and

t probabil

RROR because of experi-

(Emphasis supplied.) Thus, the testimony of the hair witness

concerning probabilities has been completely discredited in the

field and is not relied upon by hair experts. °

Coram Nobis Allegations

9. The various facts alleged in Counts I and II above can

be proved through the use of the employee evaluation, and the

recently published articles. These facts were not known, nor

could they have been known at the time of trial, because the

employee evaluation was created some months after the trial,

the article qualifying the criginal experiment was published

gome months after the trial, and the latest article completely

discrediting the first experiment was published in April, 1982.

10. The facts cited above are of such a vital nature that,

had they been known by the trial court, they conclusively would

have prevented the entry of judgment against Petitioner. Without

the hair evidence and the statistical probabilities, the only

evidence linking Petitioner to this crime is a fingerprint on

a car found a mile away from the scene which Petitioner acknowledges

he placed on the car the next morning while attempting to barglarize

it, and about which there is no proof to the contrary, and blood

and semen stains which could have been left by at least 33%, if

not 54%, of the population.

ll. Even if the facts cited above would not have conclusively

So course, the lone experiment was not “various studies by

. many persons in my field,“ as the analyst testified. Never-

the less, this, too, should have been puinted out on cross-

examination and is not a proper subject for error coram nobis.

atin

prevented the entry of judgment against Petitioner, those facts

would have been significant factors in determining Petitioner's

guilt and the appropriateness of the death penalty in this case.

12. If this request is granted, Petitioner would file the

Petition for Writ of Error Coram Nobis, attached hercto as

Appendix “D", in the Circuit Court of the Tenth Judicial Circuit.

WHEREFORE, based upon the foregoing, Petitioner respectfully

requests this Court grant him leave to apply for a writ of error

coram nobis to the Circuit Court of the Tenth Judicial Circuit.

MEMORANDUM OF LAW :

A petition for leave to apply for writ of error coram nobis

lies in the appellate court which has previously entertained an

appeal from the final judgment in the case and affirmed it by

its mandate. Hallman v. State, 371 So. 2d 482 (Fla. 1979).

The petition will be granted where new facts are alleged that

could not have been known at the time of trial which are of

such a vital nature that they conclusively would have prevented

the entry of judgment. Id. Petitioner respectfully submits

that, in cases where a death sentence has been imposed, the new

evidence need not conclusively prevent judgment, but the petition

should be granted where the new facts add a significant factor to

the guilt or sentence. Hallman, supra (Justices Overton, Boyd,

and Hatchett, concurring in part, dissenting in part). However,

under either test, Petitioner maintains that he is entitled to

relief.

A. Newly Discovered Evidence

The employee evaluation and the latest articles are newly

discovered. They did not exist at the time of trial and, thus,

Petitioner did not know, nor could have known, about them.

B. Conclusively Prevents Jud ainst Petitioner

Circumstantial evidence will not sustain a conviction unless

it is inconsistent with any reasonable hypothesis of innocence.

Peek v. State, supra; McCarther v. State, 351 So. 2d 172 (Fla.

1977). In this case, the blood and semen stains have almost no

ofan

Aer

probative value because half the population couid have left tnen.

Yurthermore, it is well-settled that a fingerprint alone cannot

'.gustain a coaviction, unless it could have been left only during

the commission of the crime. Williams v. State, 308 So. 2d 595

(Fla. lst DCA 1975); Dickson v. State, 216 So. 2d 85 (Fla. 2d DCA

1968); Tirko v. State, 138 So. 2d 388 (Pla. 34 DCA 1962). There-

fore, the hair evidence was the centerpiece of the State's case.

However, in light of the newly discovered employee evaluation,

we now know that there is a "strong probability” that the wrong

hair was examined and it is certain that the analyst used anti-

quated techniques and did not have the requisite abilities to

perform the comparison.

Moreover, even if, against all of the odds, the correct hair

was utilized, and the results of the comparison were accurate,

there is nc question that the statistics which played such a

vital part in the minds of the jury and this Court have now been

totally discredited.

The testimony of the hair expert that only 2 of 10,000 persons

exhibit microscopically consistent characteristics in their hair

presented admittedly substantial testimony. These statistics

should never have been admitted into evidence because there was

no foundation for the witness’ knowledgge, she was obviously not

a statistician, and because statistical probabilities based upon

unfounded experiments are not admissible. United States v.

Massey, 594 F.2d 676 (8th Cir. 1979); State v. Scarlett, 426

A.2d 25 (N.H. 1981); Miller vw. State, 399 S.W.2d 268 (Ark. 1966);

People v. Collins, 438 P.2d 33 (Cal. 1968); State v. Sneed, 414

P.2d 658 (N.M. 1966); see Wright v. State, 351 So. 2d 1127

(Pla. lst DCA 1977) ("criminal convictions cannot be based upon

probabilities nor suspicions . . . ."); State v. Horvatch, Case

Wo. 82-251 (4th DCA May 5, 1982) (it is improper to expose a

jury to what seems to be “scientific proof," but really is not);

Tribe, Trial by Mathematics, 84 Harv. L. Rev. 1329, 1375-76 (1971).

9 indeed, in Massed and » the Eighth Circuit and New

Hampshire Supreme reve convictions where probability sta-

tistics from the same hair experiment were used at trial. .

Petitioner has tiied a petition for writ of habeas corpus in this

Court, alleging ineffective assistance of appellate counsel for

his failure to raise this plain error which would have required

reversal. Should this Court deny that petition and thereby hold

that the “probability” evidence was properly admitted, it must

allow for newly discovered scientific evidence which disproves

the original antiquated scientific beliefs.

The jury undoubtedly accorded this “probability” evidence

great weight, as did the majority of this Court, which believed

it to be, perhaps, the strongest evidence against Petitioner.

The prosecutor argued it strenuously in his closing argument

(R-722-724) and the State argued these probabilities heavily

to this Court in its brief. State's Brief at 2, 5. Assuming,

argquendo, that the correct hair was utilized and it was compared

correctly, without the statistics, the evidence consists of an

explained fingerprint, blood and semen that could have been

left by half the population, and a hair that could have come

from Petitioner, as well as any other number of persons, perhaps

anyone else. This clearly does not point to Petitioner's guilt,

or even the possible guilt of a limited class of persons, but,

rather, could point to thousands of persons. Thus, without the

probability testimony, which would be eliminated by the admission

of the newly discovered evidence, judgment in favor of Petitioner

is mandated.

Thus, the employee evaluation and the new articles conclusively

require judgment in favor of the Petitioner. Without the evidence

concerning hair comparison and/or probabiiities concerning hair

comparisons, the State's case fails to establish Petitioner's

guilt beyond a reasonable doubt, or, for that matter, even by a

preponderance of the evidence. However, if this Court believed

that without the hair evidence, there is still sufficient cir-

cumstantial evidence upon which a jury could have convicted

Petitioner, this request to file for error coram nobis should

nevertheless be granted because the new evidence is substantial

and definitely affects the judgment and sentence of death. Petitioner

should not be put to death where his conviction is based in a larive |

-9~

' | Aer

part on scientific evidence, which, subsequent to trial was dis-

proved, and upon one witness who probably utilized contaminated

evidence and per formed inaccurate and antiquated tests. To

deny Petitioner the right to raise this vital evidence would

clearly violate his right to due process of law. As the United

States Supreme Court wrote in Lockett v. Ohio, 438 U.S. 586,

605 (1978):

The need for treating each defendant in a capital

case with that degree of respect due the unique-

in bie-haptink Guaee is far more important than

Because of the uniqueness of capital cases, due process demands

that newly discovered evidence which could vitally affect the :

judgment or sentence be considered by the courts. Of course,

Petitioner maintains that the newly discovered evidence con-

clusively requires judgment in his favor. But, even if this

Court disagrees, it must be considered where it could easily

change a jury's mind on the question of reasonable doubt. And,

when two of this Court's Justices have dissented based upon

insufficiency of the evidence, substantial new evidence per se

can make the difference on the reasonable doubt issue. If the

evidence is not considered, Petitioner could then be executed

where a reasonable doubt exists in violation of Petitioner's

@ue process rights. See Jackson v. Virginia, 443 U.S. 307

(1979).

The recent discovery of the evidence discussed herein demon-

atrates that Petitioner's conviction was based on unreliable and

incorrect evidence and antiquated scientific theories. He has

been denied a fair trial, due process of law, the effective

assistance of counsel at trial, and to have issues supporting a

capital conviction reliably determined, guaranteed by the Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution.

Petitioner’s rights under the Eighth and Fourteenth Amendments 4s

expressed in Lockett, supra; Furman v. Georgia, 408 U.S. 283 (1972);

and Eddings v. Oklahoma, _—s U.S. __ss«4(11982), require an adequate

procedure to determine the merits of a claim that a capital con-

viction is based on false evidence. Under Hallman v. State, Supr.\,

an that procedure was declared to be by writ of error coram nobis.

“Petitioner respectfully submits that he has met all of the

criteria of Hallman v. State, supra, for leave to file a petition

for writ of error coram nobis. Accordingly, Petitioner requests

that this Court grant him leave to file his petition for such

a writ in the Circuit Court.

Respectfully submitted,

Attorney at Law

224 West 4th Avenue .

Tallahassee, Florida 32303

(904) 222-5029

(904) 488-8641

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the fore-

going was furnished, by pre-paid United States Mail, to Jim

Smith, Esq., Attorney General, Office of the Attorne neral,

the Capitol, Tallahassee, Florida 32301, this © day of June,

1982.

VERIFICATION

I. Anthony Ray Peek, hereby verify that I have read the

foregoing Request for Leave to File Petition for Writ of Error

Coram Nobis, and that the facts as stated therein are true and

correct to the best of my knowledge and belief.

st ~ SANE r

ae to pol gp rt :

me s Bl ay

of ia if ates

My commission expires:

NOTE Poe, STATE A OBLOLLCA

My cee? 24, 7h Det, d, O.8

ne te

“12-

Ad?

eae DEPARTMENT OF CRIMINAL LAW ENFORCEMENT

* PERFORMANCE EVALUATION tee a Prvea are Ot sees

. + 0 Sean

ee ae) oe rn) Orvis mb OFUl Of OhaaAG

a 00720 Crime Laboratory -_

‘

Led reat rr : : ;

- i uatan paved he ae TE eee

: con ta ° evalua noted de-

ir tlencles in cal skills evidence

ee procedures, work

i next six sath.

q: x Lt Prmenoag samat Contac ame factors checked in Co! O- _jerne tactore—ene

Das x 12 sa Bei Lowel i Althoug ciencies in S areas of court ana

: z a) laboratory attire and acceptance of change anc suggestions

iy x ee ee were noted earlier in this ratin riod, recent imorove~

iy i Menanhaclicacoaminad ment has raised these factors to @ sat isfactory rating.

Tae

-,.

3 -

y 7

a nf aut 1 :

Ka moti man = — + _ —_—

eet @ men ae eee tot 79

2 SA ET e

APPENDIX “A” a ee ,

* eat, a ee A222

s, * teceiillls wr * *. OO Ee Ay ee Oe * -

ba ne * o- ”

= el FS pengetatne te ge gemma gene en, a ahi eg

‘ iia icaiill

= ae .

* ee

ae one os ie

o * es “

pis eal at —™ ©.

im = ee ee ee

aad * oe

at + * ew ~*

ni * ; %,

« : ag ee 7. ath :

“", *

.. ‘* oe * * - *

a por as

aah AE 3 lis od a

= ee Os Sad ~~

Pas ~ ere

ce I 2 e

: *

2 EVALUATION B@EPORT

tt has been noted that Me. Bass consistently fails to observe :

the official working hours. Me. Bees normally reports for vork

s have been received in regards to her callous atti~

tude with other supervisors, steff mexbers, and evidence tech~

have had a particularly

other analysts

items that she kee examined. She frequently fails to consult

the other analysts involved in the case in order to properly

coordinate the priority of the required examinations.

workday. Although

the capability of satisfactorily interacting with people, she

frequectly becomes withdrew and makes little contact with other

etaff{ members. Om other er ce Base will ester converse~

tioos al in

thea. rg Se ae eaeeaaens tend to alienate Ms. Bass from

the other staff members.

nes, a ee 5 A A. i

i Smeal i :

AE ane NR Recent

ee ed nv nheieen

eon

— aor

— sc ale ie MRR eee

* ‘ .

“

in Ste te ¥tigee & dl

~ owe aes a ise

: ae re ~

* i ige lge .

ine pert tat:

' NOE Re es eee, 3 he Se

+ wg & waa

i 4 oe owe “n° «

A Cecile ee ey ek “

Se ye lag

* me eae er ee ne ae

me i sit * se oe -—

os * e ‘veng o” ¥ . ane >.

29 Se ee: “>< ——, +s .

Tn, a — +} ~

™ * eet

wi eT et ae

t 3 ow ee

: at.”

a *,

- 2" i

#11 PLANING AND ORGANIZING (con't) — ——-

ehe starte more ‘taske oF eases than can be completed in 0

reasonable period of time. Thies results in many partially

Completed tasks or cases that eccasionally renain wacompleted

a - for some time.

Ss" oma 208 SED Se

: Although Me. Bass has approxinately three yests experience

in the crime laboratory, her technical skills in the analysis

of evidentiary materials is not commensurate with this tine

period. Although her ekille in basic microscopy appear sde~

uate for a first or second yeer micromalyet, she does eat

weiiise the more advanced techniques thet should have bees |

tor thoes enelysce shesid be. Smet ee =

cee tt Rg 7 ee, RL EA aa

, ic és ot a . on ‘he ’ ‘sae Ne SO Steen rues

— The value of record-keeping or note-taking

» samples is of unquestionable value. ‘In view of

: months or yeare may separate the

“.

eS nm ;

ead

a, ee

. emi =

meri oe

Steransusee VAL TAT ie

Employee Mo. 00720

CA Ii

7, Fs ine * ee +e.»

ee << pepeeagt see gee eae

ts ae ‘

ee A ee ee et ae ee

Ps Th xp © .

we. Oe

Kaseodelh J . ee

ogee

es, 1 = Seis igh art et

8 *

~ Eg)

ny a ae ee Ped rs

wes =e ed pe o bare!

anaes

~ *

wer ont 2 ety 5 ee

* ‘wi —

= ey

~~ Qreeer *

Me s 4,

. «

«i ee te

~~ ~~ +

. Sade ™ ee *

i aie, ee

‘ ifm

Fi Pe

a “% . “ a *

ss ow * * eed te - oe *

me 2 *

* “-e nerd ~* oe ies

~ *

*, 4

. a

me “es *

* »

Mg %.

é eS.

pee, ee ee ow Se

” * *

# —- cd * ae -

ae —

. ' : ‘ . + ee tiie

* - mo a aes +4 :

< = med eee wei PSE

af vi * a. Qe,

: PERFORMANCE EVALUATION REPORT

Sanford Crime Laboratory : ee oe

- z %

at ees oe eS

* ed ge his we 4s th saghoaas

* . a - <a >

=~ oS Sag” * igh %

* St we : . Pada

* * * “9d

<= ac ae = ae “.

by ee © sou, Mec eS * a Re oe Be x eit

ge . *

~) egies . : * :

hy 4 if - d she 1

J ia we aie © Nee. aig . ot ee

hen 626. 2 NATTY ere

* FE ea,

“oe Le

» fe ald

ee an

ag a yl A

”

: : =P %

. : Pa

. ae wanes Spa

: : a gas ‘ ~ ome 7 j

‘ oa ‘ ee we ee ‘oo ile Se x f

an: , te BE ee eters be Teel es

Sa wie ea we ay

Lanai

AFFADAVIT .

Before me, the below named authority, personally appeared

DIANA BASS, who, beig Guly deposed states as follows:

lL. My name is Diana Bass. From 1974-1978, I was employed at

the Sanford Crime Lab in Sanford, Florda, for the Florida

Department of Criminal Law Enforcement as a microanalyst.

2. During the course of my employment, I had occasion to

testify in the case of State v. Peek as an expert on hair

analysis. I testified, among other things, that "it has been

@etermined that there is probably no more than two people

out of every ten thousand persons who will exhibit exactly

the same characteristics in their hair as they are examined

microscopically.” I was then asked by the prosecutor:"So, the

odds then are one or two out of 10,000?" I testified: "Yes.*

3. In giving this testimony, I was relying primarily upon ~

an article entiled An Attempt at Determining Probabilities ~

in Numan Scalp Hair Comparison, by B.D. Gaudette & E.S. Keeping,

accepted for publication on December 20, 1973.

FURTHER THE AFFIANT SAYETH NOT.

I certify that I have read the foregoing and that it is true :

and. correct to the best of my knowledge and belief.

: pa aS EP, Se

Diana Bass

Sworn and subscribed before

ma this < day of S~uwe.

i982

ope | Metary ae

ee ee

{Sot (C1 Dy very weneees) Ay

aay Tp 7 RS OO, See sis

ase

seek APPENDIX *5"* nal 3

~< =-—- Se i es a > Tena ee, Alea! ca Sh: pene

" *; -

2p 2 te tees. oe |

1 °

. (so 2 ;

mem OPE aan - fa®

% wo) tapes ee ac

oes : “

: x ; Me bead

eee ee :* “oe “> wit ‘ ete

ase : _ Ss re 2 23 ves yo a

: * #8

‘ * «t « i wee he he oad ys moni Aa. rT at Wh fii! ag 4 ra ?

4 tps mr fg PSNR Der Cet atlas; of Ap ee ieee UAA & nod nae, eee hes oe SF,

‘ a

5 ce 4a4ue

, tb avee wit %

: BARNETT NO COLE © HUMAN Hain 279

aay

large portion of the population, the fact that the evidence aod wandard ouch w of ME

Ogle.? A.B significance. :

P D. Bamett,' B.S. and R. R. : . ‘A primary tast facing in the evaluatin of avwciatine evidence by the deter:

. . : rmination of these attributes of the physical cvidence ureful to the tavk uf individuals ation.

: ae tn urder to be weeful the attributes must be capable of measurement and wut thared by the

ir Com rison ee atl ak se ae en con ty ieee

. occurrence ant $ Pp

probabilities and Human Halr pa < then, ia principle, probability evimaies can be made to assint in evaluating the wpnihernce

‘ of the evidence. These probability eviimates are used to determine the degree of genomty

; that the evidence originated from the same source as the standard.

To be useful, probability estimates should have several features. First, the eulmated prob

. ability must be logically related to a relevant question about the evidence, Serond, the

estiested probability should be baved on characteristics that have been, or are capable of

being, measured. Third. the experiments performed to evaluate the probability swimates

must be logically related to the probability watements.

The series of papers by Gaudeite and Keeping |/} end Gaudewe [2.3] dewribe 8

_ periments cisimed to provide first estimates of cenaia probabilit wsetul tur the in

Gividuall ration scalp and upd iets ut ball

music

eeping s da rT confusion of tno divincth dd-

ferent tasks: the task of discriminating between two (randomly gelected) hairs and the tsk

ef correctly assigning an unknown hair to its sree source. The distinction beta cen thewt tee

dilferent tasks is crucial to formulating any probability statement regarding the origin of @

hair, The tack facing the hair examiner is to determine simult snecurly the degree af similar.

ley and the degree of dissimilarity between the queviioned and wandard hair. Whee 8

criminalist indicates that 2 match exists betwcen two hairs, he means that the ebvervable

similarities between the two hairs outncigh significantly the ubsers able ditsintlaritws be-

ferences between any two hairs (even from the same indi idual),

Gaudette and Keeping should have rewlted ia a high rate of success In ditingunhing be-

tween any two hairs. The inherent bias, thecelare, in the eaperment way toward a hrs prot

ability estimate —not of incorrectty identifying an individual but of failing to distinguish two

hairs. ft should not, therefore, be surprising that their probability evtimates sere lr

A ctitical bias in their experimental design derived from the use of a set of dissimilar hairs

from each individual in the study’. The process of individualization imohes buth matching

the hair to its correct source and eliminating any other source tor the hair, The wee of

dissimilar hairs from each individual placed the examiner in the position of haveing in ad-

vance that any match between two hairs was erroncous. Determinations wih the enenparnen

micrmenpe (both in longitudinal snd in cross-sectional aypects) requires! a subjective judy:

ment as to whether the given pair of hairs matched Even after mocronupe coaparion af

those whole mounted hairs not distinguished by the initial cdg, 197% of the etal sample

(163 of Rb hairs) could not be distinguished trom ather hairs in the sample. In each af these

sicke-by-side comparisons, the examiner knew that any match found would be erreneras and

ob- has bias resulted,

Anuthet bias present in the experinnctat deview semmed from thew use of renin

dividnatizing features bn the comparivn of hzirs. The charactcristios of the prot, fur exam

ple, are diagnostic of the growth cycle of the hair ard the manner in which it was rammed

from the scalp. Hair length and tip appearance are related tw walp incativn as welt as to lee

ee eee.

hid » q . :

+ be 1 a -

: >... og et nee: meget *: oe “

L ) st Oe ? “J ei eeu APPEND 9 : ‘«

Z ® : A 4 j Kj a? * ee *

i, ae a : j * * ” sit Py tk " te DES + # i Ix c _ ‘ ’ * 4 : :

: : : en e 4 . “i.

’ <*

Qe the use af characteristics that have

dnituah once. The we of munindividesl sharacle 0,

oie nn ta be reat vo silences esnece indi . {for ex

sa a ypc ond Une we andi mens ios

do a asl gmt Ses 2 A cue

under ‘on. To determine a the data gathered BY

ng to ears neous te gicance os hac mec, Sol SY

Canes oe canbe cote chen al copes sone one

3. Das available, oF to determine the probability.

ans askin wed so phy extent con be Paed SPANG ST

evidence:

petty the tse a genni i mac tes 2

1 se ag a cmp har sce om 9 tae nh

: aretement iV. This Fact. coupled sith the biss of the

cy cs nt gay oe two any meanness AR PSS

awe inl iinatir atin.

dixcuvsed

ee eng Amero est Oren A

10.21 bs geen ine Sable B. :

Poetnaheclany Starcooret #

sedan tdast oi anatcts anvaher halt from the scone

yt yg avin? Wee Fare tea RON vr Es Uh itakios

‘

.. ‘ . | “s

Fal? y ie i 3 oat { ’ ‘

x LY odie py Seve ial 5 bees Es PAY Cait Gk [Cae RP Ne

. :

@QannatT avd OGLE + HUMAN Ham 276

TABLE §—-Dise fom hair comparnens trode from Guaderie ond Ariquee 181 eed Gormed re 1D

Phan Casey se iene,

Hale Type tnd hua, @ Hain. @ * Bhatching Mons

Seni roo fet 370 28 O08) wath btw atd

Pubs ca a sr 612! mdb ideo d

sersonably high, then the routins examination of halt n che criminalintc taburstory s13) 8

at hapa

Probability Siateonent 1

wasn tothe probabtty tat 0 poresn «ii have 0 balr thet canent be Ahulnpnned from sme bai

from prcaher india ihe st?

This is cicarly a relevant ciace its evaluation enquires consideration of the evtirrie

necessary for determination of a match or aonmatch in comparing two hale In Goudeite's

vrais ta which alt of the hair matches were haowa to lmalve diftcrent tndlsidvals ied

sae adiveduats hed a scalp hair and 4272 of the indlniduate had « pubic halt och oa

peouply have unique

hak The figures, however, are sariously fawed, once every match between heals "28 Kener

Probaluity Sratevment HI

Given samples of repreventanive hale from & euniber uf inibvstnnt eho the prvbahelte that &

senduanhy wchertrd pair of lad wah will have: 0 maicthing pair of hairs?

Thin protssbitty statement ta very shitor vo it ehove, but the ditinction Ia » cvetld aoe,

Statement Hi relates to all Individuals involved in the study. whereas Matement 111 relates te &

readonly selected pair of the Individuals invohed in the study. The prodabitity estimates

for this statemen; can be derived as loth s. mang Gaudetie's dara. For wolp hair, here # 6

te wombet of individuals in the study (100) and C inthe nuasber of paire lve lndiidual con

The probability is therchore

ee gee

f am ce oe ide e

¥ ‘ ae Pye : - + E

we we! eet? ALP

For pubic hair,

co SS 217 :

gad the probability

Wt head hair,

reasonable chance (19%

cistement Wb enutions that there % 0 Tn ch ts unique im the

' oe, lew than 1%. even for

Privates aatement Ht indicases that there 0007 88s asaching pa of hairs

" ie

ra cm Mec naa at

Goudeste. For comparison, these one order of magnitude, and i mun

bai and hal rome # gen cond laa? oo

crisninalin with aff types of BHC ol

aaenw at

here, ia this irsisace, |

single air wilt be fomnd to be sleniiar 40 ® 7

be found to be simitar to 0 sample of

se of hale trom a different n-

Ame

dividual,

B = 9 single hoe ill

dnitual.

FA) & prvdabilny of Mi occurring. and

tnth A and B eccwrring.

PAR) = pronabny ot ik ol accu HB has olrcarty exerted:

FLAIR) > probability

{ 4.

TS snes tocar gover twee ene taeel® 01H COIN”

: ores oe Povinabei Statement 1

‘ « oon

ead pean or @.cuNND he om

Pubic jaro ono

—_-_

BaP ge:

Hay eet eg ay PO

ly 4 a ‘ ' er ¥ “i hah ust .

Mi tak sae

m and mtictose: ait CONT arin 1 2 usel

BE TWiT peas era ara

O Ey hh SOAS GWE Peete |

BARNETT ANO COLE + Muman mam = 277

Thus. @ MAM) asd 18) can be determined. the probabiliny edimate of the hipethou, can

be evaluated. The evatuation of this probability, homevet. in art pewible tran Gaudetie’s

data. 4 is sriomatic that ao two hairs are tru identi al. The protlem Lacing crimnainns 4

met the ability to drumguish betwcen two hainy hut the abibty to deivening «hen tan hairy

should not be distinguished (that is. they match). Criminativs are concerned with idvotify-

ing and dininguishing peuple. not hair. The value of hair as evidence maw be determined by

its usefuiness in identifying peapte, and the dais prevented by Gaudette and Keeping are of

little wse for that purpose.

Prohabdity Statement IV

Ghen camptes of representative hairs from cach of a large numbcr of individuals, what in the prd-

sbility that 6 randwah wiected pac of hairs wil be frwnd to maich?

This probability estimate. atthough of theczetical interes. is net uf particular significance te

the process of hair individuatization. Wt is, however. the prubahility eaimate derived by

Gaudette and Keeping [/] for scalp haie and by Gaudette [2] tar pubic haw. The ancedical

use of these probability extimates can easily divert the salue of hair evidence.

when presented to a lay jury hearing evidence that invaives haiz Kentdication and could lead |

to a miscarriage of justice when hair evidence plays & prominent male in a case.

Mare a pt

f insti wh fiaetreimertterres ¢ :

: Thagad seatensy TOTKTTh TA Fae evi

that when more than one hair matches an individual the probability of indinidualie ation

“skyrockets.” Moreover. other criminalits have indicated that the probability estimates

given by Gaudette and Keeping are used indiscriminately in many juriulictions. Testicncwny

ts routinely given stating that. in effect, white iis witness does not perwmaily knew the prob.

abilities involved in hair comparison and while the wither: cannvt vouch fur the vaindity of

the data of Gaudette and Kecping. the probabilities of fahe identification dered by

Gaudetie and Keeping are 1.4500 for scaip hair and 1 “R00 for pubic hair.

in hig 19 : jous. “The sivnifican hi rch is

bap Lb alien of

bility nu found but j e

portant feature of the work, the magnitude of the values obtained were used by Gaudette sn

juvidy the use of hair as a means of perwmal identification. 4x has heea pointed cut abne.

theve numbers and the experiments by which ther are devised are seriouvh flawed. They de |

aut justily the slatement that “hair evidence is gond evidence.”

The probratity estimates derived by Gaudetie and Keeping |/] and Gaadetic [2] are nut

relevant to hat indivihualization The probabilities thes derned scter to the prcers of

ditingurbing betecen twa hairy that the examiner hawes otiyinaied fram tea propts --a

task not at olf related ty the sormal laburatury eperatwm. The avemal laboratory tosh tae

volves comparion of 3 tingle eukacen hair eith hair from one et mene indisiduals this is

done by an exhaustive search, imohing pairs ic compatiens of the unknew a with all 2 che

Mandard hairs until o match bs obtained. of until we pairs remain wo compare. Thin ev

. CAEN URE the TET hla 27 Ble evi.

dential hair to hair from an individual signifies @ high probability of indisidustization and _

278 yournas OF FORENSIC SCHENCES

sna ommgeninnn in. staly. ova too ger poses oo feng Mewlls257*

Mavic angie. vanden eramporiucn eo eich thelr a3ts 3PP") :

vrs ettical inhormnatine tacking frum their data. sad she makes their data uscless for

a cunayo aac Wcailicotion. bon neti dhe echnius noth 5

Gusdeive, Human Scalp

Keegney. , ae Atteongt #4 a

Ut Gade, 80. 8 Se fern Bua Beye, No, 3, July 1974, pp. 540-40.

encase Rane et rg

ee oes

ot ~* hele oe a ‘ 7

8 RN a

A37

IN THE CIRCUIT COURT OF THE TENTH

JUDICIAL CIRCUIT, IN AND FOR POLK

COUNTY, FLORIDA

STATE OF FLORIDA,

ve.

ANTHONY RAY PEEK,

Defendant.

Case No. CF78-445

= + 62 88 te OF

PETITION FOR WRIT OF ERROR CORAM NOBIS

Petitioner, Anthony Ray Peek, petitions this court for ~~

a writ of error coram nobis. This request is based upon the

following grounds.

Introduction

1. Petitioner, Anthony Ray Peek, was convicted in this

court on April 13, 1978, of first degree murder, sexual battery,

grand larceny, and burglary. On May 2, 1978, he was adjudged

guilty and sentenced to death, a consecutive life sentence,

and two consecutive five year sentences for the respective

offenses. , eo

2. .On October 2, 1980, the Florida Supreme Court, by

a 5-2 margin,? affirmed the judgment and sentence of this court.

Peek v. State, 395 So. 2d 492 (Fla. 1980).

3. The State presented three pieces of evidence incri-

a Petitioner at trial:

@. Blood and seminal fluid stains taken from the

victim's pajamas indicated the presence of type “O" secretor

blood. According to the trial testimony, 33% of the population

- has type “O" secretor blood, including Petitioner. *

b. The victim's car was found the day after the crime

= a approximately one mile from her residence at a park, and near

her place of employment. Wumerous fingerprints were found

inside the car, including one that matched Petitioner's.

Petitioner testified that, the morning after the crime, he saw

the unlocked car while eating breakfast in the park at which

the car was found, and he decided to “look around", probably

with burglary in mind. However, he testified that there was

nothing worth taking, and he left. This fingerprint explains

how Petitioner became a suspect in the crime. It was the only

_ positive evidence linking Petitioner to anything having to

do with the crime, although it does not link him to the crime

itself. 3

¢. A piece ef stocking containing a single fragment

of a strand of negroid hair was found on the floor in the garage

of the victim's home (although the victim's body was found in

the bedroom). An employee from the Florida Department of Law

Enforcement testified that hair samples obtained from Petitioner

were microscopically consistent in appearance to the fragment

found in the stocking. She forthe testified, as noted by this

Court in its opinion, that “various studies by many persons now

working in my field have determined that there is probabily no

more than two people out of every ten thousand (10,000) persons

who will exhibit exactly the same characteristics in their hairs"

- (R-453). We now know that the hairs examined were probably

mixed up, the comparison as incorrectly done, and the statistics

relied upon are "grossly in error".

*We now know that 54% of the population could have left the

stains. Because the victim was also blood type “O", the presence

the stains could have been any blood | “non-secretor status.

In total, 548 of the popelation ouslé have

Count I--The Employee Evaluation

4. The hose containing the hair fragment was received by

the crime lab in June, 1977 {R-504-505). On July 7, 1977,

Petitioner's hair sample was delivered to the lab along with

samples from other persons. In December, 1977, some six months

later, a hair sample which was purported to have come from Petitioner

was received by the analyst (R-505-506). Nobody could testify where

that hair sample was for those six months. Furthermore, the analyst

did not say where or how the fragment was stored from the time it

was discovered in June, 1977, until it was compared to the hair

of Petitioner in December, 1977. This Court held that these

failures in the chain of custody did not require reversal because .

there was no indication of “probable tampering”. Newly discovered

evidence reveals probable tampering. This same newly discovered

evidence also reveals that the hair comparison was performed in-

correctly and was based upon antiquated techniques.

S. This newly discovered evidence consists of an employee

evaluation given the analyst about 2-3 months after trial (attached

as Appendix "A"). It raises serious allegations of probable,

though unintentional, tampering. Upon rating the analyst as

“unsatisfactory” in evidence handling, the evaluation states:

Evidence Handling

Evidence handling is one of Ms. Bass' most proble~

matical areas. She does not appear to have the

proper conception of the very special nature e.

evidentiary items and the problems that could be

created when the integrity of the evidence is

questioned. On many occasions it was noted that

items of evidence containing potential trace evi-~

dence were left in an uncovered condition on 4

protect the items top banc ert Zaid : :

protect * 2 rer : °

actua

STRONG P| SBEB rLY y EXT

PROSS-CONTAMINATION AMON G ITE

28S Of trace evidence.

Ms. Bass fails to realize that the agence: Pie

the evidence must be maintained even after

3rhis “very strong probability of ex extraneous contamination [or]

cross-contamination" is even stronger when the subject of the

analysis is hair espe yen of the he highly y mobile Nope of

It is entirely possible

hairs to another

_ that the analyst pBmbonr pe Oke of Patitioner's

wanes Seies or that one of ao ines compared came feontinead)

o_!

* *

laboratory examination is complete. In a recent

case, Ms. Bass conducted a paint comparison between

an automobile fender and a bumper. At the conclusion

of her laboratory examination, Ms. Bass stored these

items of evidence outside in back of the laboratory

in an unpackaged condition, and in an unprotected

area, thereby subjecting them to the frequent rains

eccuring at that time of year. These items quickly

became dirty and gyn f before she was directed to

protect them by the icroarialysis section supervisor.

(Emphasis supplied.)

6. This raises the “very strong probability of” tampering,

albeit unintentional. The evaluation also raises questions of

equal seriousness regarding the analyst's abilities to perform a

hair comparison,

Job Skill Level

Although Ms. Bass has approximately three years

experience in the crime laboratory, her technical

skills in the analysis of evidentiary materials is

not commensurate with this time period. Although

her skills in basic microscopy appear adequate for

a first or second year microanalyst, she does not

utilize the more advanced techniques that should

have been acquired in three years. The fact that

‘she uses a number of antiquated criteria for the

analysis o * Such as scale counting,* shouic

ae :

icative of a lack of adequate background

training in this area. f 7@ Ne? eme for hair

ari sr : gq i @ ¢ c

morpho lc al ¢ rec d_for | se of

@xamination. The failure to utiiize the comparison

Microscope in is type of exam C Tered

to be a serious fauit. . . -

Ms. Bass has not demonstrated the knowledge of in-

strumental methods of analysis usually observed in

third-year microanalysts. A lack of knowledge and

experience has been observed in her use of IR, PGC,

AA, and other instrumental methods. The inability

to choose appropriate methods of instrumental analysis

and the lack of knowledge needed to competently perform

these analyses should be considered an extremely

serious deficiency.

(Emphasis supplied.)

7. The analyst lost the hair immediately subsequent to

--+ testing and so there is no opportunity now to-go back and

demonstrate conclusively that it was not consistent with Petitioner's.

However, the evaluation shows that the analyst's continuous failure

to properly care for the evidence, in the words of the Florida

- from another suspect, a lab employee, one of the black police

officers at the scene, or an at the thousands of persons who |

could have left a hair on the floor of the victim's garage, such

as service persons. : : a -

‘this was the method utilized in this case.

Department of Law Enforcement supervisory personnel, “leaves a

very strong probability of extraneous contamination, cross-con-

tamination among items, and possible loss of trace evidence.”

Thus, Petitioner can now show, through this evaluation, probable

an tAMpering, albeit unintentional, with the evidence. Also,

Petitioner can show that the analyst did not have the abilities

to accurately perform an analysis. In a study published months

after the trial, it was found that one of three inexperienced

hair analysts misidentified common hair types.°

Count II--The Statistics

8. At the time of the trial, there was only one experiment

in the field which purported to establish statistical probabilities

for matching hair. This experiment arrived at a statistical

probability of 1 in 4500 that two hairs will match. Based upon

this experiment, ° the analyst testified that “various studies by

many persons’ in my field have determined that there are probabily

no more than two people out of every 10,000 persons who will

exhibit exactly the same characteristics in their hairs." Some

months subsequent to trial, the author of this experiment sig-

nificantly qualified it in a further work, and conceded that the

statistics would not apply to a case such as this. Then, in

April, 1982, the latest an only other article on the subject

(attached as Appendix "C*) concluded that the first experiment

was totally incorrect:

Spetitioner can also show that the witness was seriously mis-

taken in her a the fragment was consistent with

Petitioner's hair in 30-35 characteristics. Only 20-25 such charac-

. teristics exist. Nevertheless, this knowledge was available at the

_. time of trial, and, admittedly, is not a propert subject for a writ

of error coram nobis. Hall v. State, supra. _—

Similarly, it war never pointed out at trial that the fact

that the hose upon which the was found was found on the floor,

@ place where numerous hairs may be picked up. However, this, too,

was a proper matter for trial, not for writ of error coram nobis. |

Ssee affidavit (ppendix °B*)< the affidavit states that the

witness’ testimony was ba "primarily" upon this experiment. How~

ever, Petitioner is prepared to prove that no other experiment

or study existed. : 1 oe |

7 oe :

This simply was not true,.but, again, it was the duty of

the public defenter to cross-examine on se. He did not. .

In the seven years that have elapsed since the

agar sane of the first article, there has Seen

no attempt reported in the literature to confirm

Gaudette's work or criticize his treatment of the

data... . [The experiment] claims to provide

first estimates of certain probabilities useful

for the individualization of human scalp and

pubic hair. pefortaparelys the probability

estima os ) . ROR because of experi-

: [ical treatment

2 3 he bility estimates

eri.’ Gaucette are not relevant to eS

Lvidualization.

(Emphasis supplied.) Thus, the testimony of the hair witness

concerning probabilities has been completely discredited in the

field and is not relied upon by hair experts. ®

Coram Nobis Allegations

9. The various facts alleged in Counts I and II above can

be proved through the use of the employee evaluation, and the

recently published articles. These facts were not known, nor

could they have been known at the time of trial, because the

employee evaluation was created some months after the trial,

the article qualifying the original experiment was published

some months after the trial, and the latest article completely

discrediting the first experiment was published in April, 1982.

10. The facts cited above are of such a vital nature that,

had they been known by the trial court, they conclusively would

have prevented the entry of judgment against Petitioner. Without

the hair evidence and the statistical probabilities, the only

evidence linking Petitioner to this crime is a fingerprint on

a car found a mile away from the scene which Petitioner acknowledges

he placed on the car the next morning while attempting to burglarize

it, and about which there is no proof to the contrary, and blood

and semen stains which could have been ‘left by at least 33%, if

not 54%, of the population.

ll. Even if the facts cited above would not have conclusively

8o¢ course, the lone experiment was not “various studies by

many persons in my field,” as the analyst testified. Never-

the less, this, too, s have been pointed out on cross-

examination and is not @ proper —— for error coram nobis

: ~

~6-

against Petitioner, those facts

prevented the entry of judgment

determining Petitioner's

would have been significant factors in

guilt and the appropriateness of the death penalty in this case.

WHEREFORE, based upon the foregoing, Petitioner respectfully

requests this Court grant his petition for 2 writ of orror coram

nobis.

Respectfully submitted,

Edward S. Stafman

Attorney at Law

244 West 4th Avenue

Tallahassee, Florida 32303

(904) 222-5029

: (964) 488-8641

Attorney for Petitioner

CERTIFICATE OF SERVICE |

I HEREBY CERTIFY that a true and correct copy of the fore- -

going was furnished, by pre-paid United States Mail, to Jim

rney General, Office of the Attorney General, |

Smith, Esq., Atto

this day of

The Capitol, Tallahassee, Florida 32301,

I, Anthony Ray Peck, hereby verify that I have read

of my knowledge and belief.

‘

: *

were *

€ P's

‘

ANTHONY RAY PEEK, ®

a oS

v. ° CASE NO. 62,234

STATE OF FLORIDA, . :

Respondent. bd

Upon consideration of the Petition for Writ of Error

Coram Nobis, it is ordered by the Court that said petition be

and the same is hereby denied.

e Geder ADKINS, BOYD, OVERTON and McDONALD, JJ., concur

SUNDBERG and EHRLICH, JJ.- dissent

Petitioner, : Case No. 62,244

Petitioner petitions this Honorable Court for rehearing and/or clari-

fication of its order of September 9, 1982, and would show the Court as

follows:

1. Om Ame 23, 1982, Petitioner requested leave of this Court to

file in the trial court a petition for weit of error coram nobis which

would present tw pieces of newly discovered evidence to the trial court.

Qn September 9, 1982, this court denied the petition for writ of error coram

nobis without opinion, with Justices Sundberg and Ehrlich dissenting.

, Because there was no written opinion, the reasons for the Court's

denial are uinown. At the very least, Petitioner respectfully requests 4

clarification of the court's order vikich would state the reasons for denial.

fuch a clarification is particularly important in light of the fact that the

standard for prejudice that must be shown in a coram nobis proceeding in @

death case under Florida law is unclear. Oxmere Hallman v. State, 371

So.24 482 (Fla. 1979) (opinion of Justices Alderman, England, Adicins and

Sundberg) with the concurring and dissenting opinions of Justices Overton,

Boyd and Hatchett therein. Also, see 15, infra. Moreover, in a death case

where the court is divided, it is particularly important that the court

state the reasons for its rulings so thet the parties ani public understand

the court's rationale. Gardner v. Florida, 430 U.S. 349 (1977).

2 There was mo question that the new evidence sought to be presented

was “newly discovered" since it did not exist at the time of trial. Gow

eo ee cen: eee ie a a :

failure to allege sufficient prejudice. ; i

&. Tf the denial was based on Petitioner's faihwe to show ufticient

prejudice, this Court may have overlooked its recent decision in Jaramillo

62,24 ie | €

v, State, Case No. 60,570 (Fla. July 8. 1982), which held that an explained

“ fingerprint is insufficient to sustain 2 conviction. LE the newly discovered

ecidenen wate to be conidaned and rowed, the only SERining evituee®

sqainet Petitioner would be an explained Fingerprint ond blood consists

etek hia, a0 wall, os at lenet one chird of the population Thus, the evi-

dence againat Petitioner would be insufficient to sustain & conviction.

Clearly, even under the strictest standard, sufficient prejudice has been

cumied the opporeunity vo presen evidence wiich would substantially alter

the trial evidence, ££ vot conclusively prevent the entry of judgment against

him. mite new evidence would at the very least bear substantially on the

= #

U.S. at 605.

In conclusion, che ‘sg mistake in this

case is not allowing [the new evidence] to be considered

on its merits in to the appropriateness of the

Id. at 487, ‘The view of Justices Overton, Boyd, and Hatchett was recently

proved correct by the United States Supreme Court in Eddings v. Oklahoma, 50

U.S.L.W. 4161 (1982), where the Court held that the sentencing authority

eat aR SREP NS CRP AD ie camaenag

ci ceieniautie to jnene elles co x oe

tencing in a death case is unconstitutional. Green v. Georgia, 442 U.S.

95 (1979). ‘Yo deny Defendant the opportumity to present this vital new

ine ee Se and

Fourteenth Amendment rights.

In sum, the Court's order, if allowed to stand, wid deuy 0 Sith ant

fair hearing to a death-sentenced individual who was convicted and sentenced

substantially upon scientific evidence cf the caliber of the proposition

ther the earth is flat. We now know thet the earth is rund. We also know

that the physical evidence at trial was probebly mixed up and the hair

analysis was done incorrectly. As Justices Overton, Boyd, and Hatchetr held

in Hallman, the death penalty is unique, and all of the evidence mst be

considered prior to imposing it. That hes not occurred here. ‘he new :

evidence should at least be considered for the appropriateness of the

penalty. Petizionsr respectfully requests thet retearing be granted ani

this emes be ect for oral argumnt. . <t* 3,

1 T HEREBY CERTIFY that a copy of the foregoing has been sent by U.S.

mail on Sepconber 29, 1982, wo:

on oe

‘ESS/omc

* aie

ollie 4

* ie

ee ane

a o :

: :

**.

IN THE SUPREME COURT OF FLORIDA

TUESDAY, NOVEMBER 16, 1982

ANTHONY RAY PEEK, _—

Petitioner, win

vs. ene CASE NO. 62,234

STATE OF FLORIDA, we

Respondent. ‘s ”

On consideratiod bf the petition for rehearing and/or

clarification filed by attorney for petitioner,

IT IS ORDERED by the Court that said petition be and the

same is hereby denied.

cc: Edward &S. Stafman, Esquire

TEST: Charles Corces, Jr., Esquire

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.