IN THE SUPREME COURT OF FLORIDA CASE NO. SC17- MARK JAMES ASAY, Petitioner, JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.

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1 Filing # E-Filed 08/18/ :53:28 PM IN THE SUPREME COURT OF FLORIDA CASE NO. SC17- MARK JAMES ASAY, Petitioner, v. RECEIVED, 08/18/ :58:30 PM, Clerk, Supreme Court JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent. PETITION FOR WRIT OF HABEAS CORPUS MARTIN J. McCLAIN Fla. Bar No LINDA MCDERMOTT Fla. Bar No McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30 th Street Wilton Manors, FL (305) JOHN ABATECOLA Fla. Bar No Grande Oak Blvd Suite Estero, FL Telephone: (954) COUNSEL FOR PETITIONER

2 INTRODUCTION A bedrock principle of constitutionally guaranteed right to due process is the entitlement not just to notice, but also the right to be meaningfully heard. Of course, the touchstone of due process is notice and reasonable opportunity to be heard. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (due process entails notice and opportunity for hearing appropriate to the nature of the case. ); Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990) ( The essence of due process is that fair notice and a reasonable opportunity to be heard must be given to interested parties before judgment is rendered. ). On August 14, 2017, this Court gave notice when it announced that 26 years ago it erroneously identified Mr. McDowell as a black man dressed as a woman. Asay v. State, 580 So. 2d 610, 611 (Fla. 1991). The notice of factual error was announced ten days before Mr. Asay s scheduled execution in this Court s opinion affirming the denial of Mr. Asay s recent Rule motion and the denial of his habeas petition. Asay v. State, _ So. 3d _, 2017 WL , *1 (Fla. August 14, 2017). In a case in which the prosecution case was built on a theory of racial animus towards blacks as the motive for Robert McDowell s homicide, this Court at the eleventh hour has changed Mr. McDowell s race from black to white and/or 1

3 Hispanic. While this change of fact came with a statement of regret [for] our previous error, it also came with an announcement that No rehearing will be entertained by this Court and the mandate shall issue immediately. Asay v. State, 2017 WL at * 7. In other words, this Court after giving notice of a change of fact decided that Mr. Asay was not entitled to be heard at all, let alone meaningfully heard, as to what this change in fact means in regards to the litigation that has occurred during the past 26 years regarding the constitutionally validity of the judgments and sentences entered against him. A more clear violation of due process and the constitutional guarantee of notice and opportunity to be meaningfully heard is hard to imagine, and at the eleventh hour - ten days before Mr. Asay is to be executed. The State s case against Mr. Asay was premised upon its claim that the two homicides at issue were motivated by Mr. Asay s alleged racial animus. The trial was about race; it was about whether Mr. Asay was a white supremacist. In the direct appeal opinion, this Court found there was evidence of premeditation as to the McDowell homicide because he was black: Although Asay and Bubba came upon McDowell by chance while looking for prostitutes, there was sufficient evidence from which it could be concluded that this murder was not the result of an 2

4 impulsive spur-of-the-moment decision to kill made without reflection. This shooting occurred twenty minutes after Asay shot another black. Asay v. State, 580 So. 2d at 613. But as this Court regretfully announced that it had inaccurately and erroneously found that Mr. McDowell was black in the 1991 opinion, there was no discussion or consideration of what this Court s error meant as to its resolution of the issues that Mr. Asay raised in his direct appeal and in collateral proceedings. 1 And, this Court did not provide Mr. Asay with an opportunity to address this Court s admitted error and explain its significance to his conviction of first degree murder of Robert McDowell when the theory of premeditation was that he killed Mr. McDowell because he was black, even though at the eleventh hour this Court has announced that Mr. McDowell was not black after all. 2 Nor has Mr. Asay been afforded the opportunity to address the 1 This Court s factual finding that Mr. McDowell was black was binding on the circuit court when considering Mr. Asay s collateral challenges and on the federal district court when reviewing Mr. Asay s habeas petition. This Court also treated it as definitive when quoting the facts set forth in the 1991 opinion as it did in the 2000 opinion and the 2016 opinion. See Asay v. State, 769 So. 2d 974, 976 (Fla. 2000); Asay v. State, 210 So. 3d 1, 6 (Fla. 2016). 2 In Johnson v. Mississippi, 486 U.S. 578, 584 (1988), the United States Supreme Court wrote: The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment in any capital case. In that case, a death sentence was overturned because it was shown that the penalty phase jury heard materially inaccurate 3

5 significance of this Court s acknowledgment of a factual error to the appellate issues in Mr. Asay s collateral appeals. In order to claim his due process right to be heard regarding this Court s factual correction, 3 Mr. Asay files this petition for writ of habeas corpus. JURISDICTION TO ENTERTAIN PETITION AND GRANT HABEAS CORPUS RELIEF This is an original action under Fla. R. App. P (a). See Art. 1, Sec. 13, Fla. Const. The petition presents issues which concern the continued viability and constitutionality of Mr. Asay s convictions and resulting death sentences. The Florida Constitution guarantees that [t]he writ of habeas corpus shall be grantable evidence. Here, this Court in the direct appeal, the 2000 collateral appeal, and the 2016 collateral appeal, set forth and relied upon a false fact in rejecting Mr. Asay s contention that his constitutional rights were violated at the guilt phase of his trial. This Court s rejection of Mr. Asay s appeals are just as tainted by a materially inaccurate finding of fact as the jury s verdict in Johnson v. Mississippi was tainted by materially inaccurate evidence. See Parker v. Dugger, 498 U.S. 308, 318 (1991) ( The Florida Supreme Court erred in its characterization of the trial judge's findings, and consequently erred in its review of Parker's sentence. ); Id. at 320 ( What the Florida Supreme Court could not do, but what it did, was to ignore the evidence of mitigating circumstances in the record and misread the trial judge's findings regarding mitigating circumstances, and affirm the sentence based on a mischaracterization of the trial judge's findings. ) 3 In many ways, this Court s announcement of factual error in the direct appeal opinion is the functional equivalent of a retroactive change of fact. It should be analogous to a retroactive change of law. The facts of the case have been changed, and the resolution of all prior matters that included consideration of the erroneous fact must be revisited. 4

6 of right, freely and without cost. Art. I, 13, Fla. Const. Pursuant to Fla. R. App. P (a)(3) and Article V, 3(b)(9), Fla. Const., this Court has original jurisdiction. In its jurisdiction to issue writs of habeas corpus, this Court is obligated to protect Mr. Asay's rights under the Florida Constitution to be free from cruel or unusual punishment and it has the power to enter orders assuring that those rights are protected. Allen v. State, 636 So. 2d 494, 497 (Fla. 1994); Shue v. State, 397 So. 2d 910 (Fla. 1981); Makemson v. Martin County, 491 So. 2d 1109 (1986). Where state or federal constitutional rights are concerned, this Court may not abdicate its responsibility in deference to the legislative or executive branches of government. Rose v. Palm Beach City, 361 So. 2d 135, 137 n.7 (1978). This Court must exercise its independent power of judicial review. Ford v. Wainwright, 477 U.S. 399 (1986). This Court has used its habeas jurisdiction to vacate death sentences that no longer comported with either the US Constitution or the Florida Constitution. Hertz v. Jones, 218 So. 3d 428 (Fla. 2017); Hernandez v. Jones, 217 So. 3d 1032 (Fla. 2017); Card. Jones, 219 So. 3d 47 (Fla. 2017); Brooks v. Jones, 2017 WL (Fla. March 10, 2017). This Court has also on occasion reopened a direct appeal when a federal court has determined that this Court s analysis in the original direct appeal was 5

7 infected by error. In Hill v. State, 643 So. 2d 1071 (Fla. 1994), this Court explained that a federal district court had found the harmless error analysis employed by this Court in a direct appeal when it found that an aggravating circumstance had been improperly included in the sentencing calculus lacking and granted relief, in part. Here however, the erroneous fact was considered by this Court in not just the direct appeal, but also in two subsequent collateral appeals. More than just this Court s rejection of Mr. Asay s direct appeal challenges to his conviction are implicated by the retroactive change of fact. In this petition for a writ of habeas corpus, Mr. Asay raises this Court s acknowledgment of error in Mr. Asay s direct appeal and this Court s finding as a matter of fact that Robert McDowell was black. This Court has expressed its regret over its erroneous finding in its 1991 opinion. However, this Court has yet to address how that erroneous factual finding infected this Court s review and resolution of issues raised by Mr. Asay in his direct appeal and in his collateral appeals and habeas challenges to his convictions and death sentences during the past 26 years. REQUEST FOR ORAL ARGUMENT Due to the seriousness of the issues involved, Mr. Asay respectfully requests oral argument. 6

8 PROCEDURAL HISTORY Mark Asay was indicted on two counts of first degree premeditated murder on August 20, 1987, in Duval County. Trial began September 26, The prosecutor s theory of the case was that Mr. Asay was a white supremacist who with a premeditated intent arising from his racial animus towards blacks first shot and killed Robert Booker because he was black and then a short time later shot and killed Robert McDowell because he was black. In his closing argument, the prosecutor relied upon a jailhouse informant s testimony that Mr. Asay confessed to killing those niggers. Specifically, the prosecutor quoting the jailhouse informant s testimony argued: You know, I killed those niggers. That s what really happened there. (R. 854). 4 The jury returned two verdicts finding Mr. Asay guilty of first degree murder as to both homicides. Before the penalty phase began on October 28, 1988, Mr. Asay moved for a continuance, requesting an additional seven days in order to secure the presence of mitigation witnesses (T ). Mr. Asay advised the judge that he had black 4 Alternatively, testimony was heard that Mr. Asay approached Mr. McDowell, who was dressed as a woman, seeking a sexual encounter, and that Mr. McDowell was shot when Mr. Asay discovered, as sexual activity progressed, that Mr. McDowell was a man. 7

9 friends he wished to call to testify in his behalf (T. 1000). The judge advised that he had instructed the State not to present any additional evidence that the murders were racially motivated since such guilt phase evidence was not relevant at sentencing (T. 1002). Accordingly, the judge said that Mr. Asay could not present witnesses to state that he was not a racist (T. 1003). Based on that ruling, the judge denied the continuance because it was not necessary to secure the attendance of witnesses who would testify that Mr. Asay was not racist (T. 1003). At the conclusion of the penalty phase, the jury returned two 9-3 death recommendations. The trial court imposed two death sentences. As to the McDowell homicide, the judge found the CCP aggravator. The judge explained that after the Booker homicide, Mr. Asay proceeded on a course of selecting a second person of the same race and social circumstances as your first victim, you shot him repeatedly. (T. 1106). Mr. Asay appealed his convictions and sentences. In his direct appeal, Mr. Asay argued the prosecutor had erroneously been permitted to inject issues of racial prejudice into the trial: The State's evidence and argument on this point served no purpose other than attacking Mark's character on an irrelevant issue and inflaming the jury which included black jurors (T. 902). * * * Unfortunately, the State made racial prejudice a feature of this trial, thereby depriving Mark of his right to due process and a fair guilt and 8

10 penalty phase trial. (IB, Asay v. State, Case No. 73,432, Argument I, at 18). This Court did not address Argument I of Mr. Asay s initial brief in its direct appeal opinion, but simply said in a footnote that the claim lacked merit. Asay v. State, 580 So. 2d at In his direct appeal, Mr. Asay also challenged the judge s finding that there was sufficient evidence of the premeditation as to the McDowell homicide. The judge had said premeditation was present because Mr. Asay select[ed] a second person of the same race and social circumstances as your first victim when he killed Mr. McDowell (T. 1106). 6 In his brief, Mr. Asay argued to this Court: Mark could not have reflected on having just taken Booker's life because he did not know Booker died from the shooting. Booker ran from the scene. (Tr 501, ) According to Mark's alleged statement to O'Quinn, he thought he had merely scared Booker. (Tr 501, 521). (IB, Asay v. State, Case No. 73,432, Argument V, at 38). He then argued: The courts use of the alleged racial motivation for the murder was also done 5 Of course, this Court indicated in the direct appeal opinion that Mr. McDowell was black. Now that this Court has recognized that Mr. McDowell was not black, the relevance of evidence that Mr. Asay was a racist melts away and needs to be revisited. Evidence of racial animus towards blacks is not relevant in a case in which a white man is charged with killing another white man. 6 As this Court indicated on August 14, 2017 in its statement of regret, Mr. McDowell was not black. Therefore, he was not of the same race as Mr. Booker. The trial judge s statement is simply wrong. 9

11 completely without notice to the defense. Id. at This Court rejected Mr. Asay s argument relying on its factually erroneous finding that Mr. McDowell was black: This shooting occurred twenty minutes after Asay shot another black. Asay v. State, 580 so. 2d at 613 (emphasis added). 8 Mr. Asay also argued that the judge s ruling denying a continuance of the penalty phase was problematic because of the erroneous introduction of evidence at the guilt phase: Furthermore, the court's basis for denying the continuance that the mitigation evidence was irrelevant -- was blatantly wrong. The witnesses' testimony would have been admissible to rebut the State's argument that the murders were racially motivated and as evidence of good character. Even though the trial court correctly ruled that the State could not argue that the murders were racially motivated as aggravation, Robinson v. State, 520 So.2d 1, 6-8 (Fla. 1988), that did not erase the State's guilt phase argument that racial prejudice was a motivation for the murders. (IB, Asay v. State, Case No. 73,432, Argument IV, at 35). As to Argument IV of Mr. Asay s initial brief, this Court in its opinion did not address it. In a footnote, 7 In fact, the judge had ruled that Mr. Asay could not present evidence to show that he was not racially prejudiced because the judge said that such evidence was not relevant and/or admissible at a penalty phase proceeding. 8 Thus, this Court s affirmance of the finding of premeditation was dependent upon this Court s conclusion that Mr. McDowell was black. This Court s acknowledgment on August 14, 2017, that Mr. McDowell was not black invalidates the basis on which this Court rejected Mr. Asay s argument. 10

12 this Court simply said that the claim lacked merit. Asay v. State, 580 So. 2d at After indicating that Mr. McDowell was a black man, this Court rejected Mr. Asay s direct appeal challenges and affirmed his first degree murder convictions and resulting death sentences. Asay v. State, 580 So. 2d 610 (Fla. 1991). The United States Supreme Court denied Mr. Asay s petition for writ of certiorari on October 7, Asay v. Florida, 502 U.S. 895 (1991). On March 16, 1993, Mr. Asay filed a Rule motion. On November 24, 1993, it was amended. On March 19, 1996, the circuit court entered an order denying relief on some claims and granting an evidentiary hearing on other claims. The evidentiary hearing was held on March 25-27, At the evidentiary hearing in support of a Brady claim, Mr. Asay tried to call Thomas Gross, the jailhouse informant who had testified at trial that Mr. Asay told him that he shot them niggers. (T. 751). 10 Mr. Asay proffered that Mr. Gross 9 Mr. McDowell s race is extremely relevant to whether the introduction of evidence that Mr. Asay was prejudiced against blacks was error, and whether Mr. Asay was entitled to combat the inflammatory testimony by presenting witnesses who would testify that Mr. Asay was not prejudiced against blacks. 10 Mr. Gross trial testimony went well beyond claiming that Mr. Asay had confessed to the murders. Mr. Gross claimed that Mr. Asay told him that while driving his truck around, he called black people over in order to shoot them (T. 766). 11

13 would testify that at trial, in exchange for an undisclosed benefit, the State had called him to falsely testify that Mr. Asay was a racist who confessed to the killings and had told Mr. Gross that they had been racially motivated. As explained in the proffer, Mr. Gross would say that his trial testimony had been rehearsed with the prosecutor who would reword his answers (PC-T ). If he had been allowed to testify in 1996, Mr. Gross would have recounted that Mr. Asay s prosecutor told Gross how he wanted him to look directly at the jury when he testified that Mark Asay said I shot them niggers (PC-T ). Mr. Gross testimony was proffered as the basis for Mr. Asay s Brady/Giglio claim. The judge at the 1996 hearing refused to allow Mr. Asay to call Mr. Gross as a witness and present his testimony. 11 In 1996, Mr. Asay also contended that he received ineffective assistance of counsel when counsel failed to adequately address and contest the State s guilt phase presentation of evidence that Mr. Asay was a racist. Of course, the circuit 11 Of course, this Court s 1991 statement that Mr. McDowell was black was relevant to the credit worthiness of Mr. Gross claim in 1996 that his trial testimony was false and an effort to get favorable treatment from the State. This Court s acknowledgment in 2017 that Mr. McDowell was not black raises questions about Mr. Gross trial testimony that Mr. Asay told him that he shot two black men. In turn, it provides support for Mr. Gross claim in 1996 that he made up the facts in his trial testimony and that Mr. Asay had not made the statements that Mr. Gross attributed to him. 12

14 court in considering Mr. Asay s ineffectiveness claim was bound to accept this Court s erroneous factual determination that Mr. McDowell was black. That in turn undercut Mr. Asay s ineffectiveness argument that the evidence could have been excluded as irrelevant and/or combated with evidence that Mr. Asay was not racist and/or through cross examination. On April 23, 1997, the circuit court issued its order denying any relief on Mr. Asay s Rule motion. On appeal, this Court affirmed the circuit court s denial of Rule relief. Asay v. State, 769 So. 2d 974 (Fla. 2000). At the outset of the 2000 opinion, this Court quoted at length the factual recitation set forth in the 1991 direct appeal opinion, including the finding that Mr. McDowell was a black man. This now admittedly false fact was part of this Court s analysis of Mr. Asay s arguments. Mr. Asay challenged the judge s exclusion of Mr. Gross testimony at the evidentiary hearing and argued that the State had violated Brady v. Maryland. The arguments that Mr. Asay made then now draw strength from this Court s 2017 finding that Mr. McDowell was not black. The fact that Mr. McDowell was white or Hispanic provides support for Mr. Gross claim that his trial testimony was 13

15 false and given to curry favor with the prosecutor. 12 The change in fact would not only strengthen the argument that was presented, but allow stronger and more compelling arguments. In rejecting Mr. Asay s Brady/Giglio claim regarding Mr. Gross, this Court wrote: Taking Asay's allegations as true, Gross testified falsely that Asay had confessed to him and that Asay had shown him tattoos of a swastika, white pride, and SWP. Asay v. State, 769 So. 2d at 983 (emphasis added). Having recited the 1991 opinion finding that Mr. McDowell s race as black, this Court concluded that even accepting Mr. Gross proffer as true, confidence was not undermined in the outcome because Mr. Gross testimony was cumulative: This evidence was also largely cumulative of other evidence introduced at trial. In addition to the jailhouse confession testified to by Gross, the jury also heard the eyewitness testimony of Robbie Asay and Bubba O'Quinn, as well as testimony that Asay had confessed to Danny and Charlie Moore. Robbie Asay and O'Quinn also testified to statements made close to the time of the crime indicating that Asay was motivated by racial animus. Asay v. State, 769 So. 2d at 983. But the fact that this Court has now in 2017 determined that Mr. McDowell 12 Since it is now a fact that Mr. McDowell was white, Mr. Gross trial testimony that Mr. Asay told him he killed the niggers makes no sense because one of the victims was white or Hispanic, not black. The new fact announced on August 14, 2017, changes the analysis of Mr. Gross credibility in 1996, and the admissibility of his testimony. 14

16 was not black, makes Mr. Asay s alleged racial animus irrelevant to the McDowell homicide. What matters is the inflammatory testimony from Mr. Gross was not true and encouraged by the prosecutor in their rehearsals. Since the police reports clearly show that Mr. McDowell was a white male transvestite dressed in women s apparel, the prosecutor s actions could have been used to attack the State s actions in encouraging and presenting Mr. Gross testimony when the police knew that Mr. McDowell was a white male transvestite dressed in woman s apparel. See Kyles v. Whitley, 514 U.S. 419, 446 (1995) (information that undermines the reliability of the investigation is exculpatory within the meaning of Brady v. Maryland). Given this Court s acknowledgment in 2017 that its understanding of Mr. McDowell s race at the time it considered Mr. Asay s Brady claim was in error, this Court s analysis was flawed and inadequate. On October 25, 2001, Mr. Asay filed a petition for writ of habeas corpus in this Court. Subsequent to briefing and oral argument, this Court denied Mr. Asay s petition on June 13, Asay v. Moore, 828 So. 2d 985 (Fla. 2002). On October 17, 2002, Mr. Asay filed a successive Rule motion in the circuit court in which he contended that Florida s capital sentencing scheme was unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002). The motion was denied on February 23, Mr. Asay appealed, and this Court affirmed the 15

17 circuit court s denial of relief. Asay v. State, 892 So. 2d 1011 (Fla. 2004). On August 15, 2005, Mr. Asay filed a federal habeas petition in the Middle District of Florida. Though his federal habeas counsel untimely filed the petition, equitable tolling of the federal clock was granted. 13 However, Mr. Asay s petition was ultimately denied on April 14, In the order denying the federal habeas petition, the district court quoted the statement of the facts from this Court s direct appeal, including this Court erroneous representation that Mr. McDowell was black. Asay v. Sec y Fla. Dep t of Corr., 2014 WL (M.D. Fla. 2014). Under federal law, the federal district court was required to give deference to this 13 As to Mr. Asay s habeas petition, the federal district court granted equitable tolling due to misconduct by federal habeas counsel: The terms bad faith or dishonesty capture Ms. Bonner's conduct and are the type of egregious conduct that rises well above professional negligence or even gross negligence. Combining this with Ms. Bonner's already noted mental impairments during this time and giving some credence to the state's view that Ms. Bonner deliberately chose to miss the limitation deadline (even against her client's expressed wishes), thereby creating divided loyalty between Mr. Asay and Ms. Bonner, and even the high bar set by Holland is met. Recognizing that equitable tolling applies only in truly extraordinary circumstances and is typically applied sparingly, [citation omitted] the circumstances that this Petitioner has proven, which will hopefully be rare, meet this test. Moreover, it is hard to imagine how a Petitioner could be more diligent in the pursuit of a timely federal habeas filing. Asay v. McNeil, Case No. 3:05-cv (M.D. Fla), Order (February 10, 2009). 16

18 Court s factual determination. After the federal district court s ruling and a notice of appeal was filed, Mr. Asay concluded that due to the deference owed this Court, his federal appeal stood no chance, so he asked to withdraw it. The Eleventh Circuit granted the motion to withdraw the appeal on July 8, On January 8, 2016, Governor Rick Scott signed a death warrant scheduling Mr. Asay s execution for March 17, On January 13, 2016, the circuit court appointed undersigned counsel as Mr. Asay s registry counsel. On January 19, 2016, Mr. Asay filed a petition for a writ of habeas corpus with this Court. Because Mr. Asay s files that had been kept by predecessor counsel had been lost, damaged and/or rendered useless, arrangements were made for the State Attorney s Office and the Jacksonville Sheriff s Office (JSO) to provide undersigned counsel with all available public records regarding Mr. Asay s case. On January 27, 2016, Mr. Asay filed a consolidated 3.851/3.800(a) motion pursuant to the circuit court s scheduling order. The motion raised a challenge to the ballistics expert s testimony that the bullets from the two homicides matched such that he could state with 100 % certainty that bullets were fired by the same unrecovered gun. Mr. Asay challenged this expert testimony on the basis of advances in forensic science methodology which showed that the conclusion 17

19 (100% certainty) that the expert reached was unsustainable. Counsel received the JSO public records just before the motion to vacate had to be filed. After the JSO records were reviewed, an amendment to the motion was filed on January 31, 2016, raising a claim under Brady v. Maryland based upon a large number of previously undisclosed JSO records. The Brady claim set forth in the amendment included evidence gathered by law enforcement implicating Roland Pough in the Booker homicide. Much of the Brady claim concerned the Booker homicide. As to the McDowell homicide, the amendment referenced documentation showing that Mr. McDowell was not a black male as this Court stated in the 1991 direct appeal opinion: 22. Finally, all of law enforcement s notes and reports related to the homicide indicate that Mr. McDowell is a white male. However, it is clear that the State attempted to characterize Mr. McDowell as a black male in order to suggest that the shooting was racially motivated and inflame the jury. (Amendment to Rule Motion filed January 31, 2016, at 17) In its August 14, 2017 opinion, this Court cites to testimony from individuals who knew Robert McDowell and identified him as white and Hispanic. Certainly, there was trial testimony to that effect. However, the State also presented testimony at trial that McDowell was black (T. 431, 463) (The lead detective who took over the case after the ballistics match testified: At both murder scenes were two dead black males. ) (T. 463). The documents disclosed in January of 2016 refuted the detective s testimony that Mr. McDowell was black and clearly indicated that Mr. McDowell was white (PC-R ) (JSO homicide report stated: The victim was that of a white male dressed in women s apparel. ). 18

20 After the circuit court denied relief on February 3, 2016, Mr. Asay appealed to this Court. The first sentence of Mr. Asay s Initial Brief stated: Asay was convicted of two homicides - the shooting death of Robert Booker, a black male, and the shooting death of Robert McDowell, a white male. IB, Asay v. State, Case No. SC16-223, at The Initial Brief also observed that the continuation report that had been obtained from the Jacksonville Sheriff s Office contradicted the lead detective s trial testimony that Mr. McDowell was black: 16 Further attempting to perpetuate the notion that Asay had shot Booker and McDowell based on racial animus, Housend testified that there were two dead black males in the case (R. 463). However, Danny Moore, who knew McDowell, and identified his body, testified that he was white (R ; see also R. 696 (testimony of Charlie Moore)). In fact, the homicide continuation report regarding McDowell specifically identified him as a white male (PC-R2 1078). (IB, Asay v. State, Case No. SC16-223, at 12 n.9). Mr. Asay s 2016 Initial Brief also asserted: 15 In the Initial Brief, Mr. Asay cited to trial testimony concerning the fact that the shooting of Mr. McDowell happened when Mr. Asay discovered the person with whom he was getting intimate was a man dressed as a woman: Danny also testified that Asay had kissed McDowell before killing him and realized that he was not female, so he shot him (R. 651). IB, Asay v. State, Case No. SC at This continuation report was part of Mr. Asay s proffer of material supporting his 2016 motion for postconviction relief. The proffer was filed in the circuit court and was part of the record on appeal before this Court. 19

21 Of course the fact that McDowell was identified in the continuation report as a white male made it all the more important to tie Asay to the Booker homicide in order provide some basis for Gross otherwise ridiculous claim that Asay said he shot a white guy because of prejudice against blacks. (IB, Asay v. State, Case No. SC16-223, at 12 n.10). On March 2, 2016, this Court entered a stay of Mr. Asay s execution. On April 13, 2016, Mr. Asay filed a second habeas petition with this Court. On December 22, 2017, this Court denied both of Mr. Asay s petitions and affirmed the circuit court s denial of relief as to Mr. Asay s Rule motion. Asay v. State, 210 So. 3d 1 (Fla. 2016). This Court s opinion quoted the factual recitation in the 1991 direct appeal opinion and its reference to McDowell as a black man dressed as a woman. This erroneous fact was thus accepted as correct and part of the analysis when this Court rejected Mr. Asay s 2016 Brady claim. The analysis of the Brady claim set forth in this Court s opinion was severely limited to only a portion of Mr. Asay s claim: Asay pleads generally that it is exculpatory, was suppressed by the State, and is material, such that he was prejudiced. However, the record conclusively shows that the alleged evidence is not material such that its alleged suppression prejudiced him. Franqui, 59 So.3d at 102. The existence of another initial suspect and the fact that a witness owned a gun similar to the murder weapon cannot reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Id. Nor does that evidence create any dispute with the evidence the jury heard at trial. 20

22 Asay v. State, 210 So. 3d at 25. While Mr. Asay s Brady claim did rely upon the previously undisclosed information regarding Roland Pough as a suspect in the Booker homicide, the Brady claim was not limited only to the undisclosed information concerning Pough. The previously undisclosed records also contained information regarding Mr. McDowell. These documents all indicated that Mr. McDowell was white. In denying Mr. Asay s Brady claim, this Court s cumulative materiality analysis did not address this aspect of Mr. Asay s claim or consider in its analysis that in fact Mr. McDowell was white and the State s narrative at trial that he was black was erroneous. This Court did not address the matter in its 2016 opinion. On April 29, 2017, Mr. Asay filed a petition for a writ of certiorari with the United States Supreme Court. That petition is currently still pending. On July 3, 2017, Governor Rick Scott rescheduled Mr. Asay s execution for August 24, On July 19, 2017, Mr. Asay filed a Rule motion. The circuit court held an evidentiary hearing on July 26, 2017, on Mr. Asay s challenge to Florida s new lethal injection protocol. The circuit court denied all relief on July 28, Mr. Asay then filed an appeal to this Court. On August 2, 2017, Mr. Asay filed a petition for a writ of habeas corpus 21

23 with this Court. On August 14, 2017, this Court denied Mr. Asay s petition and affirmed the circuit court s denial of relief as to Mr. Asay s Rule motion. Asay v. State, So. 3d, 2017 WL (Fla. August 14, 2017). In this opinion, this Court acknowledged that in its 1991 direct appeal opinion it erroneously stated that Mr. McDowell was a black man: The underlying facts of this case have been previously set forth in this Court's opinion on direct appeal. See Asay v. State (Asay I), 580 So.2d 610, (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991). A majority of the details described therein are accurate, with the following exceptions relating to Asay's second victim. We have previously described the victim born Robert McDowell as a black man dressed as a woman. McDowell was known to friends and neighbors as Renee Torres. Torres was identified at trial by everyone who testified as white and Hispanic. Renee Torres née Robert McDowell may have been either white or mixed-race, Hispanic but was not a black man. We regret our previous error. Asay v. State, 2017 WL *1 (emphasis added). After its statement of regret which gave the parties notice of a change in fact, the majority opinion concluded with the announcement: No rehearing will be entertained by this Court and the mandate shall issue immediately. Asay v. State, 2017 WL *7. In another words, Mr. Asay was given notice of a retroactive change in fact, but no opportunity to be heard regarding the significance of changing a fact in a way that substantially undercut the State s 22

24 theory of the case, i.e. that Mr. McDowell s homicide was a result of racial animus towards blacks. In its statement of regret issued on August 14, 2017, no consideration was given to the fact that for 26 years this Court had heard and considered three appeals by Mr. Asay in which he challenged his convictions, and when evaluating Mr. Asay s arguments, this Court had relied on a false finding that Mr. McDowell was a black man. Further when issuing its statement of regret 10 days before Mr. Asay s execution, this Court did not indicate that Mr. Asay would be afforded an opportunity to address this Court s retroactive change of fact. GROUNDS FOR HABEAS CORPUS RELIEF IN ITS AUGUST 14, 2017 OPINION THIS COURT WROTE THAT IT REGRETTED THAT 26 YEARS AGO IT HAD ERRONEOUSLY FOUND MR. MCDOWELL TO HAVE BEEN A BLACK MAN, BUT IT FAILED TO HONOR MR. ASAY S DUE PROCESS RIGHT TO AN OPPORTUNITY TO BE MEANINGFULLY HEARD AS TO THE EFFECT OF THIS COURT S RETROACTIVE CHANGE OF FACT. WE NOW KNOW THAT THIS COURT RELIED UPON A FALSE FACT WHEN IT DENIED MR. ASAY S DIRECT APPEAL, WHEN IT DENIED MR. ASAY S APPEAL FROM THE DENIAL OF HIS FIRST MOTION, AND WHEN IT DENIED MR. ASAY S APPEAL FROM HIS 2016 MOTION TO VACATE. 23

25 THE RELIANCE UPON A FALSE FACT IN A CAPITAL CASE VIOLATES DUE PROCESS AND THE EIGHTH AND FOURTEENTH AMENDMENTS. TO AFFORD MR. ASAY AN OPPORTUNITY TO BE MEANINGFULLY HEARD ON THE CHANGE OF FACT IN THE AUGUST 14 TH STATEMENT OF REGRET, THIS COURT MUST REOPEN THE THREE APPELLATE DECISIONS THAT RELIED ON A FALSE FACT TO REJECT MR. ASAY S CONSTITUTIONAL CHALLENGES AND HONOR HIS RIGHT TO BE MEANINGFUL HEARD ON HOW THE RETROACTIVE CHANGE OF FACT ALTERS THE ANALYSIS AND CHANGES THE OUTCOME. I. The Context of the Change in Fact Early on July 18, 1987, two seemingly unrelated homicides occurred in Jacksonville. Robert Booker, a black male, was found dead under a house at 1622 N. Laura Street. He had ran there after having been shot hours earlier. Robert McDowell, a white male transvestite dressed in women s apparel 17 was found shot to death in a parking lot. 17 This quote is from page 2 of the 14 page Homicide Continuation Report signed by Detective Moneyhun on August 13, 1987 (PC-R3 1079). See (PC-R3 1080) ( The victim was that of a white male dressed in women s apparel ); (PC- R3 1094) ( white male laying face down ); (PC-R3 1095) ( Race: White ). The same day that law enforcement found Robert McDowell s lifeless body, an autopsy was performed. The medical examiner s file lists Mr. McDowell as a white male. 24

26 As to the Booker homicide, Roland Pough, a known drug dealer, became the prime suspect on July 23, A white male known as Yankee had told a marine patrol office that a black male named Roland had killed Booker (PC-R3 1062). Police learned that Yankee was Richard Trussell. When he was contacted at 12:30 pm on July 23, 1987, he led the police to Selwyn Hall who indicated that Roland Pough said that he had shot a black male once who was trying to rob Pough. After the would be robber was shot, he ran off. A sworn statement was obtained from Selwyn Hall in which Hall recounted Pough s statement about shooting a black male who ran off after he was shot once (PC-R3 1062). 18 The description of the victim given by Pough matched Booker. Police arranged to try to arrest Pough at 4pm on July 23 rd in the midst of a drug buy hoping that he would be carrying a gun which could then be seized and tested to see if the bullet taken from Booker s body had been fired by Pough s gun. However, the attempt to arrest Pough went awry. Pough ended up being shot and critically injured and hospitalized. 19 No gun was located on him. 18 Apparently Selwyn Hall was killed by police on April 26, See icer-involved-shooting-domestic-disturbance. 19 According to a handwritten document disclosed in 2016, Det. Housend checked jail for Roland on July 27, He was told that Roland was still at hospital - will be there for awhile. (PC-R3 1112). The document then has an entry 25

27 As to the McDowell homicide, a lead came in on July 24, 1987 implicating Mark Asay as a suspect. Reportedly he had been overheard saying he shot someone on Main Street on the night in question. 20 (PC-R3 1085). On Monday, July 27, 1987, the police viewed Asay as a suspect as the McDowell homicide. When contacted, Bubba indicated that he and Asay had been drinking and were looking to have sex with prostitutes when they came upon McDowell who was dressed as a woman. Bubba was familiar with McDowell, but did not know that he was a man. Arrangements were made for the three of them to engage in sexual activity. Bubba reported that at a certain point, Asay grabbed McDowell and shot him six times. The Booker and McDowell homicides were being separately investigated and there was a suspect in each case. Then on July 30, 1987, a ballistics analyst with FDLE examined the bullets removed from the victims and announced, with 100% certainty, that the bullets had all been fired by the same gun (PC-R3 1113). From this the police concluded the same person committed both murders. That stating: Case Suspended with a date at the bottom of July 29, 1987 (PC-R3 1112). 20 Mr. McDowell was found shot at 16 th and Main Street. The police report concerning Asay having reportedly said he shot someone on Main Street, did not indicate that Asay had said anything about shooting anyone other than the one person on Main Street (PC-R3 1085). 26

28 same day an informant responded to a Crime Watch segment (PC-R3 1113). Reportedly someone claimed Asay had confessed to killing someone at 16 th and Main Street. (PC-R3 1063). On July 31, 1987, the police tracked down Charlie Moore who reported that Asay had confessed to the killing at 16 th and Main in his presence (PC-R3 1064). At 5:30 pm on July 31 st, Assistant State Attorney Bernie de la Rionda was contacted. By 9:30 pm, Mr. de la Rionda had prepared a warrant for Mark Asay s arrest (PC-R3 1065). By 10pm, a judge had been located to sign the arrest warrant. From that point on, the prosecutor, Mr. de la Rionda was in charge. It was no longer a matter of investigating the homicides; it had become a matter of mapping out how to get Asay convicted of two first degree murders and then two death sentences imposed. It was a matter of building the case against Mr. Asay. But clearly as the matter went from investigation by the sheriff s office to prosecution by the state attorney s office, Robert McDowell was a white male transvestite dressed in women s apparel. II. The Architect - Who Created the False Narrative. In Mr. Asay s case, the prosecutor, Bernie de la Rionda, cast himself in the role of an architect of a proceeding that does not comport with standards of 27

29 justice. See Brady v. Maryland, 373 U.S. 83, 88 (1963). The Jacksonville Sheriff s Office homicide reports were and are unambiguous. The victim was that of a white male dressed in women s apparel. (PC-R ). So in the course of the prosecution, how did the description of Mr. McDowell go from a white male dressed in women s apparel to a black male dressed in women s apparel? On July 7, 1986, the United States Supreme Court granted a petition for a writ of certiorari in McCleskey v. Kemp, 478 U.S (1986), and agreed to review whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment. McCleskey v. Kemp, 481 U.S. 279, (1987). When the 5-4 decision issued on April 22, 1987, the Supreme Court held that the statistical study at issue had failed to establish a constitutionally significant risk that racial bias was present in the Georgia capital sentencing scheme. Id. at 313. Nevertheless, the study at issue highlighted the relationship between the race of the victim and the imposition of a death sentence. Id. at 327 (Brennan, J., dissenting) ( prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. ). As a result of McCleskey and the study at issue, both prosecutors and defense attorneys began keeping statistics on the race of the victim when a death sentence was imposed. In Freeman v. State, 761 So. 2d 1055, 1068 (Fla. 2000), ths Court ordered an evidentiary hearing on Freeman s claim the prosecutor rejected Freeman's offer to plead guilty in both cases if the death penalty were dropped because the State needed to get the numbers up on cases seeking the death penalty where white defendants had killed black victims. Freeman had been charged in Duval County with two first degree murders - one murder charge was filed in December of 1986, the other in April of Freeman was white; the victims were black. One case went to trial in October of 1987; the other went to trial in September of Death sentences were imposed in both cases. At the evidentiary hearing, the Duval County prosecutor and the defense attorney testified regarding plea negotiations before the October, 1987 in one of Freeman s case. Defense counsel 28

30 McQuinn, who had previously paid McDowell for sexual activity and who did not know that McDowell was a man, arranged for McDowell to engage in sex acts with both McQuinn and Asay. McQuinn said he saw Asay suddenly shoot McDowell. The ballistics experts said whoever shot McDowell, shot Booker, a black man. 22 To establish premeditation, the prosecutor used racial animus. Gross, initiated the discussion by offering a plea to a life sentence. The prosecutor testified that he remembered saying: that if he agreed to the plea, [Freeman s public defender] would use that against him in an argument that the State seeks death against white defendants less often than against black ones (EHT. 18). IB, Freeman v. State, Case No. SC , at 5. Freeman s public defender testified that after he told the prosecutor that Freeman would plea guilty if the State would agree to a life sentence, the prosecutor responded that normally he would consider it, but he couldn t in this instance because they had to get their numbers up on whites killing blacks (EHT. 90). IB, Freeman v. State, Case No. SC , at 14. After the evidentiary hearing, relief was denied and this Court affirmed. Freeman v. State, 858 So. 2d 319 (Fla. 2003). Nevertheless, the testimony at the hearing clearly shows that in the time period prosecutors in Duval County were very conscious of potential challenges to the death penalty if death sentences were not obtained in case with white defendants who had killed black victims. This is precisely the time period in which Mr. Asay was charged, convicted and sentenced to death. 22 After charging Mr. Asay with Booker s murder, the State simply looked for witnesses who it could get to convince a jury of guilt that the prosecutor had decided to presume based solely on the ballistics expert. The best the State could get from individuals who had been with Asay that night and were subject to be threatened with an accessory charge was tepid. Mr. Asay s brother, Robbie testified that though he saw his brother and a black male argue, he did not see Mr. Asay shoot the black male (T. 575) (emphasis added). Just as significant was Robbie s further testimony that Mr. Booker was not the black man that came up to [his] truck (T. 591), and; that Mr. Booker was not the man that he had spoken with and that Mr. Asay was speaking to at 6 th and Laura when a shot was fired (T. 29

31 the jailhouse informant, was used to have the racial animus come from Asay s own mouth in the most inflammatory way. Making McDowell black, instead of white, made both homicides worse and helped build a case for two death sentences. It also precluded a severance of the cases. Acknowledging that McDowell was white would mean that all of the racial animus evidence would be irrelevant in the prosecution of a white man for the murder of another white man. In such circumstances, evidence of irrelevant racial animus would also be prejudicial and would mean the two cases would have to be severed. So, the prosecutor built his case on a falsehood, that McDowell was black. But as this Court acknowledged on August 14, 2017, McDowell was white, not black. This Court s recognition that the truth is McDowell was white means that the prosecutor s case must be reexamined. The prosecutor presented and relied on factually erroneous testimony which he had to know was factually erroneous ). Robbie was certain because he recalled that the man with whom he spoke had a full head of hair, unlike Mr. Booker (T. 592). While Bubba O Quinn, described the shooting in his testimony, he did not identify the victim of the shooting as Mr. Booker (see T ). 23 Additionally in the wake of McCleskey, there was a premium on death sentences imposed on white defendants in cases with black victims because the existence of death sentences in those type cases were seen as precluding challenges that the death sentences were being imposed in a racially biased manner. 30

32 Gross testimony does not make sense when viewed with the knowledge that McDowell was white. The reliability of the entirety of the State s case is damaged because of the factually erroneous evidence that the prosecutor was willing to present in order to win. His goal was to win - to get convictions - to get death sentences - to win whatever the cost. Documents clearly shows that Mr. McDowell was a white male, and those who knew him in life testified he was white (see R ; 696). Yet, the prosecutor had two witnesses within law enforcement testify that he was black. Dr. Bonacio Floro, the medical examined who had documented Mr. McDowell as a white male at the time of the autopsy (PC-R3 1095), inexplicably testified that: he was a black male, with multiple gunshot wounds of the body... (T. 431). Since documentation from the autopsy shows that McDowell was white and since this Court on August 14, 2017 acknowledged that as a matter of fact, McDowell was white, Dr. Floro s testimony was not true. Truth is critical in the operation of our judicial system. Florida Bar v. Feinberg, 760 So. 2d 933, 939 (Fla. 2001). The Eighth Amendment is violated when in a capital case it is shown the jury was allowed to consider evidence that has been revealed to be materially inaccurate. Johnson v. Mississippi, 486 U.S. 578, 589 (1988). Detective Housend had only become involved in the investigation of the 31

33 McDowell homicide when the ballistics expert linked the two cases when he concluded all the bullets had been fired by the same gun. So his knowledge of the McDowell homicide crime scene would have been obtained by reading the homicide continuation report, and that report clearly and repeatedly stated that Mr. McDowell was white. Yet when called to testify at trial, Housend swore under oath: At both murder scenes were two dead black males. The police reports from those who discovered McDowell s body and the Homicide Continuation Report that Housend had access to, all confirm that McDowell was described as a dead white male (T. 463). Also, this Court on August 14, 2017 acknowledged that as a matter of fact, McDowell was white. Housend s testimony that the two bodies found were both blackmales was simply false. Johnson v. State, 44 So. 3d 51, 53 (Fla. 2010) (Undergirding due process is the principle that society's search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar. ). In addition, the prosecutor called Gross, a witness who had reason to curry favor with the State. He testified that Asay, who was only in the same cell with Gross for 2 or 3 days, had shown him some newspaper articles and confided that he, Asay, had shot them niggers (T. 751, 765). Gross elaborated, Asay told him 32

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