Petition — TAFERO v. FLORIDA (No. 83-6150)

ORIGIN ~eeoe

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JESSE JOSEPH TAFERO,

Petitioner,

versus

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari to

The Supreme Court of Florida

PETITION FOR WRIT OF CERTIORARI

MARC COOPER, ESQ.

Counsel of Record

SHARON L. WOLFE, ESQ.

Suite 500, Roberts Building

28 West Flagler Street

Miami, Plorida 33130

(305) 371-1597

Attorneys for Petitioner

January 24, 1984

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DEO ee OO eee

QUESTION PRESENTED

Whether Plorida's procedural rule on post-

conviction relief, which precludes a death

penalty defendant from obtaining an eviden-

tiary hearing on the truth of the state's key

witness' recantation, denies due process?

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Questions Presented

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions

Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

CITATIONS

Cases

Brown v. State,

439 So.2d 872 (Fla. 1983)

Eddings v. Oklahoma,

455 U.S. 104 (1982)

Enmund v. Florida,

455 u.S. 1015 (1982)

Ex parte Welles,

53 So.2d 708 (Fla. 1951)

Fast v. State,

221 So.2d 203 (Fla. 3d DCA 1969)

Green v. Georgia,

442 U.S. 95 (1979)

Hallman v. State,

371 So.2d 482 (Fla. 1979)

Kellerman v. State,

287 So.2d 702 (Fla. 3d DCA 1973)

Lockett v. Ohio,

438 U.S. 586 (1978)

Stromberg v. California,

283 U.S. 359 (1931)

Tafero v. State,

403 So.2d 355 (Fla. 1981)

Tafero v. State,

440 So.2d 350 (Pla. 1983)

Walden v. State,

310 So.2d 426 (Fla. 3d DCA 1975)

Zant v. Stephens,

456 U.S. 410 (1983)

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Other Authorities

28 U.S.C. § 1257(3) 1

Fed.R.Crim.P. 3.590 6

Fla.R.Crim.P. 3.600(a) (3) 6

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EEE EEE

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JESSE JOSEPH TAFERO,

Petitioner,

versus

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari to

The Supreme Court of Florida

PETITION FOR WRIT OF CERTIORARI

The Petitioner Jesse Joseph Tafero respectfully prays that a

writ of certiorari issue to review the judgment, opinion and or-

der on rehearing of the Supreme Court of Florida entered on No-

vember 29, 1983. Tafero v. State, 440 So.2d 350 (Fla. 1983).

OPINIONS BELOW

The Supreme Court of Florida denied Tafero leave to file a

petition for writ of error coram nobis on October 6, 1983. Two

justices dissented. The court denied rehearing. Copies of the

order denying leave, the dissents and the order denying rehearing

are contained in the appendix. (A. 1-4).

JURISDICTION

This Court's jurisdiction is invoked pursuant to 28 U.S.C. §

1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been pre-

viously ascertained by law, and to be informed

of the nature and cause of the accusation; to

ele

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be confronted with the witnesses against him;

to have compulsory process for obtaining wit-

nesses in his favor, and to ‘have the Assis-

tance of Counsel for his defence.

Eighth Amendment, United States Constitution:

Excessive bail shall not be required, nor ex-

cessive fines imposed, nor cruel and unusual

punishments inflicted.

Fourteenth Amendment, United States Conetitution:

All persons born or naturalized in the United

States, and subject to the jurisdiction there-

of, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of

the United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT OF THE CASE

Tafero was convicted on two counts of first degree murder

and sentenced to death on May 18, 1976.1/ the Supreme Court of

Florida affirmed his conviction and sentence. Tafero v. State,

403 So.2d 355 (Fla. 1981).?/

Facts Concerning Relief Sought

Tafero filed a motion for leave to file petition for writ of

error coram nobis in the Supreme Court of Florida. He requested

only that the Court grant him leave to obtain an evidentiary

hearing in the trial court. The primary purpose of that hearing

was to determine the truth of the sworn recantation of the

State's key witness against him.

The motion for leave contained two aspects. First, Tafero

relied on the newly discovered sworn testimony of Walter Norman

1/ Wo death warrant has been signed yet.

2/ The trial court found certain aggravating factors: (1) the

murders were committed while defendant was on parole and a fugi-

tive; (2) defendant had a significant history of criminal activ-

ity involving violence, all arising out of a single incident; (3)

the murders were committed to avoid arrest; (4) the murders were

committed to hinder law enforcement; (5) the murders were hein-

ous, atrocious and cruel; and (6) Tafero created a great risk of

death to many persons. The Supreme Court found that the last two

factors were not supported by the evidence. However the court

found that a new sentencing proceeding was not necessary because

the trial court had found no mitigating factors.

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eee

4

Rhodes, Tafero's co-defendant and the only witness who testified

at trial that Tafero shot anyone.

Rhodes testified for the State

in return for the State's agreement not to seek the death penalty

in his case.

But in September 1982, Rhodes spontaneously sent an

affidavit to the state attorney for Broward County, which specif-

ically recanted his trial testimony.

RhoGes subsequently reaf-

firmed the contents of that affidavit in a lengthy and detailed

sworn statement.

the

He unequivocally accepted responsibility for

shootings for which Tafero stands sentenced to death.

Rhodes, not Tafero, was the triggerman.

not

Second, Tafero's motion relied on sworn evidence that he did

commit certain offenses for which he was convicted in 1967.

Those 1967 convictions were the primary aggravating factor which

led to imposition of the death penalty.

The Supreme Court of Florida denied Tafero leave to file a

petition for writ of error coram nobis on either ground. He

could not even obtain an evidentiary hearing on the truth of the

matters raised. Two justices dissented. Justice Boyd stated:

(A.

(A.

2).

3).

I dissent and would grant leave to apply for a

writ of error coram nobis. I believe that

when a witness, under penalty of perjury, re-

cants critical testimony given at the trial,

there should be an evidentiary hearing. Such

a recantation raises the question of whether

an innocent person has been sentenced to pri-

son or the electric chair on the basis of per-

jured testimony. Surely when a substantial

question of such a miscarriage of justice has

been raised, the state, society, and the

courts should be sufficiently concerned to re-

guire further inquiry.

Justice Overton's dissent was also simple and direct.

I would find that whenever the asserted recan-

ted testimony was a critical feature of the

trial there must be an evidentiary hearing.

Underlying Facts

This incident began at a rest stop in Broward County where

Tafero, Sonia Linder, their children and Walter Rhodes had pulled

over to sleep.

state trooper looking into the car.

Early in the morning they were awakened by a

He apparently noticed a gun

between the seats, opened the front door and took the gun. The

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TEL. (2308) 371.1887

trooper then began questioning Rhodes, Tafero and Linder. The

events which followed culminated in the shooting of the state

trooper and a visiting Canadian officer.

Three primary witnesses testified at Tafero's trial concern-

ing the shooting. Two of those witnesses were disinterested and

independent. They were truck drivers who pulled into the rest

area and parked about 150 feet behind the trooper's car. They

watched almost the entire sequence of events. Each of them tes-

tified that the Canadian officer was holding Taferc up against

the trooper's car with his arm pinned behind his back at the time

the shots were fired. Tafero did not fire the shots which killed

the officers.

The third witness was Rhodes. He testified that Linder

fired some shots from the rear seat of the car. Tafero then ran

over to her, took the gun and fired the remaining shots.

It is this trial testimony which Rhodes recanted in his af-

fidavit and sworn statement. In the summer of 1982, Rhodes con-

tacted the news media and gave a three-hour taped interview in

which he described every aspect of the incident. He sent an af-

fidavit to the Broward County state attorney in which he repudi-

ated his trial testimony and admitted that he, not Tafero and

Linder, had killed the officers. Rhodes then gave a full state-

ment under oath to Tafero's counsel. He reiterated that he had

shot the officers, Tafero did not shoot anyone and Tafero had no

idea that Rhodes was going to shoot anyone.

Despite Rhodes' repeated recantation under oath, the Supreme

Court of Plorida refused to allow Tafero leave to file a petition

for writ of error coram nobis and obtain an evidentiary hearing

on the truth or falsity of Rhodes' statements. It applied the

standard which regvires that the new evidence “conclusively”

would have prevented the conviction.

REASONS FOR GRANTING THE WRIT

Florida requires a defendant to demonstrate that newly dis-

covered evidence conclusively would have prevented the entry of

judgment before the defendant may obtain an evidentiary hearing

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on the truth of the evidence. This rule violates the sixth,

eighth and fourteenth amendments to the United States constitu-

tion. The evidence as to which Tafero was denied a hearing would

have demonstrated that he did not pull the trigger. ?/ And that

evidence would also have demonstrated that Tafero did not commit

the crimes for which he was convicted in 1967, the basis for the

finding of a “significant history of prior criminal activity”.

If Tafero had no committed the 1967 crimes, then the evidence

would have shown the mitigating factor of no significant history

of prior criminal activity.

Plorida requires that the appellate court which affirms a

conviction grant permission for a defendant to present newly dis-

covered evidence to the trial court. Hallman v. State, 371 So.2d

482 (Fla. 1979). The evidence must meet two basic requirements:

(1) it must be newly discovered; and (2) it “conclusively would

have prevented the entry of the judgment.” 371 So.2d at 485.

Application of the second requirement in death penalty cases

leads to unreasonable and improperly harsh results. As pointed

out by the dissenting justices in Hallman:

A death case should be an exception to the

"conclusiveness test." In my view, the rigid

application of the “conclusiveness test" is

not proper in cases where the death penalty

has been imposed. As Mr. Justice Stephens

said in writing for the plurality in Gardner

v. Florida, 430 U.S. 349, 351, 97 S.Ct. 1197,

SI L.£d.2d 393 (1977), the death penalty is

different from any other means of punishment,

both in its severity and finality. I also be-

lieve our failure to consider these allega-

tions on the merits at the sentencing phase

will result in a weakening of our death pen-

alty statute and could lead to a reversal of

this clause under the principles expounded by

the United States Supreme Court in er v.

Ohio, 438 U.S. 586, 98 §.Ct. 2954, L. .

3 (1978). The majority in Lockett stated

3/ The jury here returned a general verdict which could have

been based on premeditated murder or felony murder. This Court

has held that a general verdict must be set aside where it rests

on both constitutional and unconstitutional grounds. Stromber

v California, 283 U.S. 359 (1931). Therefore where, as here,

t eath penalty could have been based on findings of either

premeditated murder or felony murder, and it would be unconstitu-

tional to base the death penalty on felony murder, Enmund v.

° , 455 U.S. 1015 (1982), a new trial is required. Cf. Zant

Ye Seephens, 456 U.S. 410 (1983). This issue was not an appro-

priate ground for coram nobis relief.

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that: "The need for treating each defendant

in a capital case with that degree of respect

due to uniqueness of the individual is far

more important than a non-capital case is."

438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d

at 990.

In conclusion, the majority's mistake in this

case is not allowing [the new evidence] to be

considered on its merits in regard to the ap-

propriateness of the death penalty in this

cause.

371 So.2d at 487 (Overton, J., dissenting). Furthermore, there

is no rational reason for applying this conclusiveness standard

based solely on the time at which the evidence is discovered.

Fla.R.Crim.P. 3.600(a)(3) permits a motion for new trial based on

newly discovered evidence if that evidence “would probably have

changed the verdict or finding of the court." But that motion

must be filed within 10 days of the verdict, Fla.R.Crim.P.

3.590. See also Fed.R.Crim.P. 33. Where, as here, a defendant

cannot control the time at which supportive evidence will appear,

he becomes subject to the law's vagaries which impose the burden

on him of conclusively demonstrating something which he otherwise

would not have to demonstrate. 4/

Purther, the Florida courts appear to interpret the conclu-

siveness test arbitrarily. Just before the Florida Supreme Court

denied Tafero's motion for leave to file a coram nobis petition,

the court issued its opig@ion in another death penalty case.

Brown v. State, 439 So.2d 872 (Pla. 1983). In Brown, the Florida

Supreme Court previously had remanded for an evidentiary hearing

when the key state witness filed an affidavit recanting his trial

testimony. °/ The following appears on the face of the opinion:

The first time Ployd recanted, Brown's counsel

secured a post-trial affidavit from him sta-

ting that his trial testimony was false and

that it was given in return for a prosecutori-

4/ Apparently the only time the Supreme Court of Florida has

found that a defendant get the conclusiveness test was wher. the

prosecuting attorney admitted that the newly discovered eviderce

_ Showed the defendant was not guilty and had a complete alibi. Ex

parte Welles, 53 So.2d 708 (Fla. 1951).

5/ The fact that the trial court subsequently denied the motion

and found that the recantation was not believeable is not rele-

vant to the threshold question of whether an evidentiary hearing

should be granted.

al offer of favorable consideration. This

Court granted Brown's motion to remand for an

evidentiary hearing.

Id.

Other Florida courts grant evidentiary hearings where newly

discovered evidence relates to the truth of the State's evidnece

or shows that another confessed to committing the crime for which

the defendant was convicted. £E.g., Walden v. State, 310 So.2d

426 (Pla. 3d DCA 1975) (defendant granted evidentiary hearing on,

newly discovered evidence claim that another person confessed to

crime for which defendant convicted; court found confession not

believeable); Kellerman v. State, 287 So.2d 702 (Fla. 3d DCA

1973) (evidentiary hearing required where newly discovered evi-

dence showed that state witnesses/codefendants had committed an

unrelated crime at the same time they testified they participated

in crime for which defendant was found guilty); Fast v. State,

221 So.2d 203 (Fla. 3d DCA 1969) (defendant granted evidentiary

hearing on newly discovered evidence claim that another person

confessed to crime for which defendant convicted; court found

confession not believeable).

This Court has recently held that the sentencing authority

must consider in mitigation any aspect of defendant's character

and any of the circumstances of the offense. The sentencer can-

not refuse to consider mitigating evidence as a matter of law.

Eddings v. Oklahoma, 455 U.S. 104 (1982). See also Lockett v.

Ohio, 4368 U.S. 586 (1978):

[A] statute that prevents the sentencer in all

capital cases from giving independent mitigat-

ing weight to aspects of the defendant's char-

acter and record and to circumstances of the

offense proffered in mitigation creates the

risk that the death penalty will be imposed in

spite of factors which may call for a less

gevere penalty. When the choice is between

life and death, that risk is unacceptable and

Lockett, supra, 438 U.S. at 605.

Similarly, this Court has held that a state procedural rule

which precludes the sentencing authority in a death case from

considering relevant and reliable evidence violates the sixth,

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eighth and fourteenth amendments. Green v. Georgia, 442 U.S. 95

(1979). In Green, defendant sought to prove during the sentenc-

ing trial that he was not present when the victim was killed. He

attempted to introduce the testimony of a witness who had testi-

fied for the state at the codefendant's trial. The witness would

have testified that the codefendant admitted to him that he had

shot the victim after sending defendant out on an errand. The

court refused to allow this testimony in evidence on the ground

that it was hearsay. This Court held that the exclusion of this

testimony was error.

Regardless of whether the proffered testimony

comes within Georgia's hearsay rule, under the

facts of this case its exclusion constituted a

violation of the Due Process Clause of the

Fourteenth Amendment. The excluded testimony

was Teal ha to a critical issue in the

punishment phase of the trial .. . and sub-

stantial reasons existed to assume its relia-

bility.

442 U.S. at 97.

Despite the holdings in Eddings and Green, which so strongly

highlight this Court's concern with full consideration of factors

which mitigate against imposition of the death penalty, the coram

nobis conclusiveness test prevents consideration of mitigating

evidence which is critical and relevant to imposition of the

death penalty. It improperly precludes consideration of mitiga-

ting evidence. It permits an execution where the State's only

witness swears that he, not the defendant, pulled the trigger.

It permits an execution where there is sworn testimony that a

third person, not the defendant, committed the prior crimes on

which the sentencing judge relied as a key aggravating factor.

The proferred evidence from Rhodes would demonstrate that

Tafero did not pull the trigger. That alone should preclude en-

try of the death sentence. Enmund v. Plorida, supra. The re-

maining evidence would show that Tafero did not commit the crimes

of which he was convicted in 1967. Therefore the trial court

should not have found the aggravating factor of a significant

history of prior criminal activity. Rather, Tafero would have no

significant history of prior criminal activity in the absence of

LAW OFFICES GREENE & COOPER. P.A.. 500 ROBERTS BUILDING. 28 WEST FLAGLER STREET. MIAMI. FLA 32130 + TEL. (308) 371-1807

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the 1967 convictions. This is a mitigating factor.

A defendant should not be precluded from obtaining an evi-

dentiary hearing concerning the recantation of the State's key

witness because that defendant might not “conclusively” demon-

strate that the judgment would be different. Courts dealing with

the death penalty cannot and should not impose such an unmeetable

burden and thereby treat the defendant's life so lightly. The

application of the conclusiveness test to newly discovered evi-

dence in a death penalty case is improper.

CONCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment, opinion and order on rehearing of the Supreme

Court of Florida.

Respectfully submitted,

MARC COOPER, ESQ.

Counsel of Record

SHARON L. WOLFE, ESQ.

500 Roberts Building

28 West Flagler Street

Miami, Florida 33130

(305) 371-1597

Attorneys for Petitioner

ee oa

MARC COOPER

By : A hakt

SHARON L. WOLF

By:

January 24, 1983

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TEL. (308) 371.1807

INDEX TO APPENDIX

Document Page

Order Denying Leave to File Petition

for Writ of Error Coram Nobis 1

Order Denying Motion for Rehearing 4

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“—s * — “

;

-

: Suprente Cetirt of Flovide ‘

THURSDAY, OCTOBER 6, 1983

JESSE JOSEPH TAFERO, ae

Petitioner, ae

_— - CASE NO. 62,847

STATE OF FLORIDA, a*

Respondent. a+

On consideration of the Motion for Leave to File Petition

for Writ of Error Coram Nobis, it is ordered by the Court that said

motion be and the same is hereby denied.

ALDERMAN, C.J., ADKINS, McDONALD and EHRLICH, JJ., Concur

BOYD, J., Dissents with an opinion

OVERTON, J., Dissents with an opinion, in which BOYD, J., Concurs

A True Copy JB

TEST: cc: Elizabeth J. Du Fresne, Esquire

of Du Fresne & Bradley, P.A.

Miami, Florida

tMarc Cooper, Esquire

of Greene & Cooper, P.A.

Miami, Florida

Attorneys for Petitioner

Joy B. Shearer, Esquire

Assistant Attorney General

West Palm Beach, Florida

Attorney for Respondent

0001

oe LS U

BorD, J., dissenting. 4

I dissent and would grant leave to apply for a writ of

error coram nobis. tf believe that when a witness, under penalty

of perjury, recants critical testimony given at the trial, there

should be an evidentiary hearing. Such a recantation raises the

question of whether an innocent person has been sentenced to

prison or the electric chair on the basis of perjured testimony.

Surely when a substantial question of such a miscarriage of

justice has been raised, the state, society, and the courts

should be sufficiently concerned to require further inquiry.

aQ=

0002

- .« 8 2 — —_

Overton, J., dissenting.

, |

. 1 dissent. 1 would find that whenever the asserted

recanted testimony was a critical feature of the trial there must

be an evidentiary hearing.

BOYD, J., Concurs

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0003

IN THE SUPREME COURT OF FLORIDA

TUESDAY, NOVEMBER 29, 1983

JESSE JOSEPH TAFERO, **

Petitioner, +e

—s o@ CASE NO. 62,847

STATE OF FLORIDA, +e

Respondent. ++

On consideration of the motion for rehearing filed by

attorneys for petitioner, and response thereto,

IT IS ORDERED vy the Court that said motion be and the

same is hereby denied.

A True Copy c :

cc: Elizabeth J. DuFresne, Esquire

TEST: Marc Cooper, Esquire

of Greene & Cooper

Bruce M. Lee, Esquire

Sid J. White

Clerk Supreme Court

pp WULL, Cormatar,

Deputy Clerk

0004

83-6150

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

73? ; Ag

RCEINA!

-kA Se § as JESSE JOSEPH TAFERO,

Petitioner,

versus

STATE OF FLORIDA,

Respondent,

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner Jesse Joseph Tafero requests leave of this Court

to proceed in forma pauperis on his petition for writ of certio-

rari pursuant to Sup.Ct.R. 46 and states:

l. Tafero is on death row. This petition seeks review of

the Supreme Court of Florida's denial of Tafero's motion for

leave to file a petition for writ of error coram nobis.

2. Tafero had court appointed counsel at his trial. He was

represented by the Public Defender, West Palm Beach, Florida on

direct appeal to the Supreme Court of Florida. The Supreme Court

of Florida permitted him to proceed in forma pauperis on his cor-

am nobis motion.

3. Attached to this motion is an affidavit which sets out

the facts in support of this motion.

WHEREFORE Petitioner Jesse Joseph Tafero requests leave of

this Court to proceed in forma pauperis.

Respectfully submitted,

MARC COOPER, ESQ.

Counsel of Record

SHARON L. WOLFE, ESQ.

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

(305) 371-1597

Attorneys for Petitioner

ae

MARC COOPER

By:

NO.

IN THE SUPREME COURT OF THE UNITED STATES

JESSE JOSEPH TAFERO,

Petitioner,

v.

STATE OF FLORIDA,

/

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

I, JESSE JOSEPH TAFERO, being first duly sworn, depose and

say that I am the Petitioner in the above-entitled case; that in

support of my motion to proceed on petition for writ of certio-

rari without being required to prepay fees, costs or give sécuri-

ty therefor, I state that because of my poverty I am unable to

pay the costs of said proceeding or to give security therefor;

and that I believe I am entitled to redress.

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay

the cost of prosecuting these proceedings are true.

1. I am not presently employed. I was last employed

on {(¢ VY and received a salary of $ “Yoo per month.

2. Within the past 12 months I have not received any income

from a business, profession or other form of self-employment, or

in the form of rent payments, interest, dividends, or other

source.

3. I do not own any cash or checking or savings account.

4. I do not own any real estate, stocks, bonds, notes,

automobiles, or other valuable property.

5. No one is presently dependent on me for support.

I understand that a false statement or answer to any ques-

tions in this affidavit will subject me to penalties for perjury.

Rin ane 2.o

e JESSE SosePa SAFERO =

SWORN TO AND SUBSCRIBED before me this 1d aay of January, 1984.

ida at Large

Notary

; f WOTARY PUBLIC. STATE CF FLOS:DA

My commission exPireS: wy commission Expires Aug 22, 1987