IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR GLADES COUNTY, FLORIDA
CASE NO. 83-12 CF
(File Previously Kept in LeeCounty)
STATE OF FLORIDA,
Plaintiff,
v.
CARY MICHAEL LAMBRIX,
Defendant.
______/
SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION
AND SENTENCE
WITH SPECIAL REQUEST FOR LEAVE TO AMEND
CARY MICHAEL LAMBRIX, the Defendant in the above-captioned cause, respectfully moves this Court for an Order, pursuant to Florida Rules of Criminal Procedure 3.851, vacating and setting aside the judgments of convictions and sentences, including his sentence of death, imposed upon him by this Court.[1] In support thereof, Mr.Lambrix respectfully submits the following:
1.Mr.Lambrix’s Rule 3.851 motion presents substantial claims challenging the validity of his convictions and sentences, including his sentence of death. As will be demonstrated below, Mr.Lambrix is entitled to the relief he seeks. Mr.Lambrix requests the opportunity to be heard on his Rule 3.851 motion. Fla. R. Crim. P. 3.851(f)(5)(B); Huff v. State, 622 So. 2d 982 (Fla. 1993).
2.Mr.Lambrix requests an evidentiary hearing. Through this pleading, Mr.Lambrix demonstrates that he is entitled to an evidentiary hearing on the claims raised herein, including the public records claim. Moreover, at an evidentiary hearing, Mr.Lambrix can prove he is entitled to the relief he seeks. The files and records in this case fail to show conclusively that Mr.Lambrix is entitled to Ano relief.@SeeLemon v. State, 498 So. 2d 923 (Fla. 1986)(citingState v. Crews, 477 So. 2d 984 (Fla. 1984); O=Callaghan v. State, 461 So. 2d 1354 (Fla. 1984)). Mr.Lambrix disputes factual issues with non-record proof. Accordingly, an evidentiary hearing is required. Mr.Lambrix=s claims require a factual determination. Accordingly, an evidentiary hearing should be held on Mr.Lambrix=s claims, after which the relief sought herein should be granted.
3.Mr.Lambrix requests leave to (1) supplement and/or amend his claims with new and/or additional evidence as it becomes available; (2) add claims; and (3) provide a memorandum of law in support of his claims for relief and his request for an evidentiary hearing.
4.This motion is incomplete because investigation on Mr.Lambrix=s behalf is not yet complete. Mr.Lambrix should be allowed to pursue public records from FDLE in light of the fact that new records have emerged that were never been provided except by informal production to counsel in 2008 by a third party. Mr. Lambrix should be allowed to interview and depose witnesses related to this new information and its impact on the case against Mr. Lambrix.
GROUNDS FOR POSTCONVICTION RELIEF
By his motion for relief pursuant to Fla. R. Crim. P. 3.851, Mr.Lambrix asserts that his conviction and sentence of death were obtained in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Florida Constitution. Mr.Lambrix requests and evidentiary hearing, and thereafter, that his judgments of conviction and sentences be vacated for each of the reasons set forth below.
PROCEDURAL HISTORY
1.On March 29, 1983, Mr. Lambrix was charged with two counts of first-degree murder. His first trial ended with the declaration of a mistrial on December 17, 1983, when the jury failed to reach a verdict after deliberating for some eleven hours.
2.Mr. Lambrix's second trial, presided over by Judge Richard M. Stanley, commenced on February 20, 1984. On February 24, 1984, the jury found Mr. Lambrix guilty on both counts of the indictment. The penalty phase of Mr. Lambrix's trial was held on February 27, 1984. Mr. Lambrix did not testify at either the guilt or penalty phases of the trial. The jury recommended death with regard to both convictions, 10-2 and 8-4, respectively.
3.On March 22, 1984, Judge Stanley imposed two death sentences. On direct appeal, the Florida Supreme Court upheld both the convictions and sentences and in so doing, labeled Judge Stanley "the ultimate symbol of neutrality" in his performance during the trial. Lambrix v. State, 494 So. 2d 1143, 1146 (Fla. 1986). Mr. Lambrix was subsequently denied collateral relief in both the State and federal courts.
4.The subsequent procedural history, not including the instant litigation currently underway at the Florida Supreme Court, which began in 1997, can be found in the following opinions denying relief: Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); Lambrix v. State, 534 So. 2d 1151 (Fla. 1988); Lambrix v. Dugger, Case No. 88-12107-Civ-Zloch (S.D. Fla. May 12, 1992); Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994); Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996); Lambrix v. Singletary, 83 F.3d 438 (11th Cir. 1996); Lambrix v. Singletary, 117 S.Ct. 380 (1996); Lambrix v. Singletary, 520 U.S. 518 (1997); and Lambrix v. State, 698 So. 2d 247 (Fla. 1996).[2]
5.On November 18, 2004 Mr. Lambrix filed a consolidated motion based upon newly discovered evidence. This motion includedClaim VI: newly discovered evidence that Debbie Hanzel=s false testimony at trial was the result of fabrication by Frances Smith and Investigator Daniels; Claim VII: a Brady/Giglio[3] claim based on the new evidence that Frances Smith and Investigator Daniels had a sexual relationship that impacted on the investigation and presentation of evidence in Mr. Lambrix’s case to his substantial prejudice; and Claim VIII: a claim that the fundamental miscarriage of justice doctrine requires the review of claims that were previously found to be procedurally barred.
6.This court ultimately entered an order finding as a fact that there was no sexual encounter between Frances Smith and former SAO Investigator Daniels on March 30, 2007. After allowing Mr. Lambrix to present argument regarding his entitlement for further evidentiary development, this court entered a final order denying post-conviction relief on November 13, 2007.
7.On appeal, Mr. Lambrix served an Initial Brief on October 28, 2008, and thereafter served an amended and corrected Initial Brief on January 21, 2009. The State served an Answer Brief on February 9, 2009. Mr. Lambrix’s Answer Brief is due to be served at the Florida Supreme Court on or before April 13, 2009.
8.Names, addresses (where known) and telephone numbers (where known) of all witnesses supporting the claim:
1.Elizabeth A. Golding
Florida Department of State
R.A.GrayBuilding
500 South Bronough St.
Tallahassee, FL32399-0250
(850) 245-6715
2.FDLE Records Custodian
c/o Office of the General Counsel
FDLE, Attn: Michael Ramage
PO Box 1489
Tallahassee, FL32302-1489
(850) 410-7676
3.Ruth A. Wilbarger, FDLE Crime Lab Analyst, Serology Section
Tampa Regional Crime Laboratory
400 West Buffalo Ave.
Tampa, FL33684
(813)272-3926
4.Laura Rousseau, FDLE Crime Lab Analyst
David K. Jernigan, FDLE Crime Lab Analyst
Edward S. Gunther, Crime Lab Analyst, Latent Print Section
Myrtis J. Smith, Tampa Lab
c/o Office of the General Counsel
FDLE, Attn: Michael Ramage
PO Box 1489
Tallahassee, FL32302-1489
(850) 410-7676
5.Connie (Smith) Patrick, Director
FederalLawEnforcementTrainingCenter
US Dept. of Homeland Security
1131 Chapel Crossing Rd.
Glynco, GA31524
(912) 267-2070
6.Carol Dittmar , Senior Assistant Attorney General
(and prior Assistant Attorney Generals on the case including but not limited to Peggy Ann Quince and Robert J. Krauss)
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, FL33607-7013
(813) 287-7910
(850) 922-5624 (Supreme Court of Florida for now Chief Justice Quince)
7.Randall B. McGruther, Chief Assistant State Attorney
PO Box 399
Ft. Myers, FL33902-0399
(239) 335-2707
8. Cynthia Ross
Assistant State Attorney
(and any other ASAs on the Lambrix case)
PO Box 399
Ft. Myers, FL33903-0399
(239) 335-2635
9. Anthony Pires (former ASA)
Woodward, Pires, and Lombardo
3200 Tamiami Trail Suite 200
Naples, FL34103
(239) 649-6555
10. Chief Investigator William McQuinn
Office of the State Attorney
PO Box 399
Ft. Myers, FL33903
11.Robert V. Greene
Greene and Tischler, PA
2503 Del Prado Blvd. Suite 402
Cape Coral, FL33904
(239) 573-7400
12.Frances O. Smith Schwendeman
1301 N. Palm Drive
Plant City, FL33563
13.Cary Michael Lambrix
DOC #482053
Union Correctional Institution
7819 NW 228th St.
Raiford, Florida32026
14.Sally Johnson Deller
3735 Fernwood Lane SW
Labelle, FL33935
15.Miles Robert “Bob” Daniels
Cape Coral, FL
16.Steve Wistar
385 Science Park Road
State College, PA16803-2215
(814) 237-0309
17.William T. Gaut
9063 Autumn Haze Drive
Naples, Florida34109-1501
(239) 593-8033
18.Richard H. Thompson
RHT Engineering
319 Inman Street
Lehigh Acres, FL 33972
(239) 369-8900
19.Edward N. Willey, M.D.
7869 Ninth Avenue South
St. Petersburg, Florida33707-2730
(727) 345-2907
20.Arkady Katznelson, M.D.
89 Anvil Drive
Avon, CT 06001
(860) 675-4656
21.Joan Tharp Daniels
3303 Brooklyn Ave.
Port Charlotte, FL33952-7213
22.Kinley Engvalson, Esq.
1920 Victoria Ave.
Ft. Myers, Florida33901
(239) 332-7273
23.Billy H. Nolas, Esq.
Independence Square West, Ste. 545 Curtis Bldg.
601 Walnut St.
Philadelphia, PA19106-3323
(215) 928-0520
24.Matthew Lawry, Esq.
Independence Square West, Ste. 545 Curtis Bldg.
601 Walnut St.
Philadelphia, PA19106-3323
(215) 928-0520
25.Jennifer Lee Greenberg, Esq.
Florida Innocence Initiative, Inc.
1110 East Park Ave.
Tallahassee, FL32301-2651
(850) 561-6788
26.Edward A. Doskey, Esq.
Kimsey Law Group
3816 W. Linebaugh Ave., Ste. 412
Tampa, FL33618-8900
(813) 265 9292
27.Michael Hickey
1867 Avenida Mimosa
Encinitas, CA92024
(760) 943-0377
The witnesses will be available should an evidentiary hearing be scheduled to testify under oath to the facts alleged in the motion.
CLAIM I
MR.LAMBRIX IS BEING DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION BECAUSE HE IS BEING DENIED ACCESS TO PUBLIC RECORDS.
This claim is evidenced by the following:
1.All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.
2.Fla. Stat. ' 119.19 and Rule 3.852 violate Mr.Lambrix=s rights under Article I, Section 24, of the Florida Constitution, Amendments V and XIV to the U.S. Constitution as they all seek to impermissibly restrict access to public records by requiring Mr.Lambrix to demonstrate, inter alia: (1) that he has made his own search for the records from sources other than the agencies subject to his public records demands (e.g., the records repository maintained by the Secretary of State); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976), Davis v. SarasotaCounty Public Hosp. Bd., 480 So. 2d 203 (Fla. 2d DCA 1985); (2) that his requests are relevant to his postconviction proceedings, News-Press Pub. Co., Inc. v. Gadd, 388So. 2d 276 (Fla. 2d DCA 1980), Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA 1985); and (3) that his requests are not overly broad or unduly burdensome, Id., Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990), Tal-Mason v. Satz, 614 So. 2d 1134 (Fla. 4th DCA 1993)(rev. denied, 624 So. 2d 269), Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). Furthermore, by virtue of their vagueness and overbreadth, Fla. Stat. ' 119.19 and Fla. R. Crim. P. 3.852, should be found, on their face and as applied to Mr.Lambrix, unconstitutional. State v. Gray, 435 So. 2d 816, 819 (Fla. 1983)(citingConnally v. General Const. Co., 269 U.S. 385, 391 (1926); Grayned v. City of Rockford, 408 U.S. 104 (1972); seealso, U.S. Const. Amend. VIII.
3.In addition to restricting Mr.Lambrix=s rights, Section 119.19 and Rule 3.852 violate Article I, Section 24 of the Florida Constitution by impermissibly restricting the defendant's right to access the records through his counsel. Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); News-Press Pub. Co., Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1985); Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA 1985); Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990); Tal-Mason v. Satz, 614 So. 2d 1134 (Fla. 4th DCA 1993).
4.By the confusion and prejudice inherent in public records law in capital postconviction, and by the denial and/or delay in receiving public records pertinent to his case, Mr.Lambrix is being denied his rights to due process and equal protection of the law. Without the requested records Mr.Lambrix is denied the full panoply of armaments with which to challenge his conviction and sentence. Easter v. Endell, 37 F.3d 1343 (8thCir. 1994); Holland v. State, 503 So. 2d 1250 (Fla. 1987).
5.Mr.Lambrix is entitled to effective representation in his capital collateral appeals. Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988). Due to the government=s delay and withholding of files, undersigned counsel is precluded from rendering effective assistance. U.S. v. Cronic, 104 S.Ct. 2039 (1984).
6.During the pendency of his appeal to the Florida Supreme Court, public records concerning Mr. Lambrix’s case were obtained in July 2008 by a private third party from FDLE and copies of those records were provided to CCRC South in September 2008. The FDLE production included 189 lab case pages and documents retained by FDLE under Lab Case # 830231411. After a review of the 189 pages of records a comparison to all FDLE records that had previously been producedto trial counsel and postconviction counsel was undertaken by undersigned counsel.
7.This comparison included the FDLE’s original production of public records related to the Lambrix case to CCR postconviction counsel Billy Nolas in March/April 1987 and a later 20th Judicial Circuit Glades County State Attorney’s Office production of records (inclusive of three files including FDLE records) to the records repository on July 9, 1999. The three SAO files that included FDLE documents were File 8: FDLE Connie Smith reports/notes (73 pages), File 25: Lab reports and submission forms (48 pages), and File 26: Crime scene and Evidence reports (4 pagesof FDLE “Request for Examination of Physical Evidence” forms). ATTACHMENT A. As noted elsewhere herein, FDLE never produced any records directly to the records repository.
8.Given that the state attorney file contained 52 pages of FDLE Lab reports, the fact that FDLE produced 189 pages of Lab reports and records to a private citizen in July 2008 is a matter of concern. Likewise, a review of the original production of FDLE records to postconviction counsel, dating to 1987, reveals that of the total production of 696 pages of FDLE documents, only 41 unduplicated pages of Lab documents were included. A total of sixty-nine pages of lab documents produced included 28 duplicate pages.
9.On September 9, 2008, undersigned counsel was contacted by an independent researcher named Michael Hickey. Mr. Hickey advised that he had received a production of records from the Florida Department of Law Enforcement in July 2008 that concerned the investigation of Mr. Lambrix’s case pre-trial. His own investigation indicated to him that some of these records had never been turned over to trial counsel or to postconviction counsel in the subsequent litigation of Mr. Lambrix’s case.
10.Hickey provided undersigned counsel with copies of the records that he received from both FDLE and the records repository. After reviewing what Hickey provided and comparing the FDLE records with those that had been provided to postconviction counsel, undersigned counsel recognized that some of the documents could be newly discovered evidence.
11.Counsel for Mr. Lambrix thereafter sent a letter to the Records Repository on November 14, 2008, inquiring about any FDLE records at the repository associated with Mr. Lambrix’s case. It described the situation as follows:
Dear Ms. Golding:
The Office of the Capital Collateral Regional Counsel - South, currently represents Cary Michael Lambrix, an indigent, death-sentenced Florida inmate, in his capital postconviction appeal in the above captioned case. This letter is intended to inquire as to whether your agency, or the Commission on Capital Cases before you, has ever received any production of records in this case directly from FDLE and, if so, how many pages that production included.
During the pendency of the current appeal, undersigned counsel was contacted by a Mr. Michael Hickey concerning his own independent requests in July 2008 from both the repository and FDLE for records related to the above captioned case. Mr. Hickey provided me with his correspondence with repository employees Miriam Spalding and Holly Sinco. It appears to describe the indexing of all the materials in your collection concerning the Lambrix case. Specifically, the correspondence noted that what you had there included Series 1739 Box 683 and Series 1739 Box 152. My own records indicate that these boxes were produced to the Commission in January 1999 and provided to CCRC-South in January 2000 and that Box 683 was produced by the State Attorney, 20th Judicial Circuit, and Box 152 was produced by the Florida Department of Corrections.
Mr. Hickey ultimately obtained 189 pages of documents directly from FDLE described as “lab case pages/documents”. Your agency provided Mr. Hickey with 49 pages of FDLE Physical Evidence State Archive documents. My assumption is that the 49 pages of FDLE documents from the repository came from the State Attorney files (Box 683).
To the best of my knowledge, FDLE never has produced any records directly to the Commission or the repository. There was a production by FDLE directly to CCR on March 30, 1987. Please confirm that there has not been a production of records by FDLE to the Commission or the repository reflected by your collection and records. In addition, please confirm that there are no sealed boxes or files that were produced to the Commission or repository in the Lambrix case.
If I can be of any assistance to you in fulfilling this request, do not hesitate to contact me.
Sincerely,
William M. Hennis III
Litigation Director
CCRC-South
Attorney for Mr. Lambrix
12.On November 17, 2008, the repository staff responded to counsel’s inquiry concerning records production from FDLE by advising that that office had only received three boxes of records in the case of Cary Michael Lambrix: Box 152 from the Department of Corrections; Box 153 a sealed box from Department of Corrections, and Box 683, a box from the State Attorney, 20th Judicial Circuit.
13.The repository affirmed in an email dated November 17, 2008 that FDLE had never produced any records to the Repository. Counsel requested that a compact disk of all the records in the repository be provided to make certain that FDLE had never produced any records to the repository. Under cover of a letter dated December 4, 2008 the Repository provided the disks and copies of the transmittals and indices indicating that only the Florida Department of Corrections and the State Attorney’s Office in Labelle, Florida had submitted records to the repository, respectively on January 15, 1999 and July 7, 1999.
14.The only documents related to FDLE in the records repository collection of Mr. Lambrix were three file units or folders within the State Attorney production: #8 FDLE Connie Smith report/notes (73 pages), #25 Lab report and submission notes (48 pages), and #26, Crime scene and evidence reports (4 pages). Therefore the SAO file contained a total of 52 pages of FDLE lab related documents. The FDLE never made any agency production to the records repository in Mr. Lambrix’s case.
15.The production of public records in the Lambrix case by FDLE to then CCR Counsel Billy Nolas was invoiced on March 30, 1987. The invoice noted 696 pages of documents to be reproduced at .10 a page ($69.90) and an additional charge of $24.76 for an unspecified number of reproduced photographs. A internal review of this material in CCRC South’s files has revealed that only 41 original pages of the 696 pages produced by FDLE to postconviction counsel in 1987 was “Lab Case Pages” related to FDLE testing. ATTACHMENT B.
16.The lab notes and reports obtained in September 2008 contain information never before provided to Mr. Lambrix by FDLE. ATTACHMENT C. The specific materiality of the documents is referenced in CLAIM III in the instant motion, and examples derived from the materials in Attachment B are included in the instant motion.
17.Mr.Lambrix requests permission to formally seek production of the FDLE laboratory records retained under FDLE Lab Case # 830231411 that he received through private channels in September 2008 as described herein, pursuant to Fla. R. Crim. P. 3.852, and to seek any additional supplemental public records pursuant to Fla. R. Crim. P. 3.852(i) if necessary and to amend this Rule 3.851 motion pending the receipt of additional supplemental records. This request is integral to his rights in the postconviction process. Relief is proper.