# Appendix — ANTHONY R. PEEK V. FLORIDA (No. 82-5909) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1351%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 ## 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%- L4 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 | E i te P} 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 4 * -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 7 * : : | - * * 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 td [! : 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 * - - : “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 ee : 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 4 $ 922.242(6) (g), Fla. Seat. (977). -$ * ’ Te a 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 ae ®. x « ie : ye = ‘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 ‘ * * 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 ee he a ‘bars hed - iad - | 4 -ROSS-CONTAMINATION AMONG ITEMS, and possit . 29 Se ee: “> =~ oS Sag” * igh % * St we : . Pada * * * “9d « 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 ... 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. é ’ 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 ee hale from the same ta- © oe —_-_ 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 1" 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 _ x 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 Un Gocacre, ©. D.. “Some Forties NT. sabituies ond Wmnan Hale Companions” Aer ee oes to ot ~* hele oe a ‘ 7 8 RN a ad 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) a 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. . he 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, | | | | oe oe I, Anthony Ray Peck, hereby verify that I have read of my knowledge and belief. ‘ ‘ . : * were * * € P's 4 a ‘ " # . 5 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. .