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St. Johns County Florida Criminal Court Records

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									               IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT
                    IN AND FOR ST. JOHNS COUNTY, FLORIDA

__________________________________________
                                          )
STATE OF FLORIDA                          )
                                          )                    CRIMINAL DIVISION
      vs.                                 )                    Case No. 83-1440-CF
                                          )
JERRY LAYNE ROGERS                        )
__________________________________________)


                        REPLY MEMORANDUM IN SUPPORT
                       OF AMENDED MOTION FOR NEW TRIAL

               The issue to be resolved on this motion is not the sufficiency but the weight

of the evidence. In that context, it is particularly striking that the State‟s response does not

even mention the most important evidence that contradicts the jury verdict -- the eyewitness

identifications all establishing that the second robber was taller than McDermid (while

Rogers is much shorter); and the identification of the eyewitness with the best view of the

robbers, who immediately identified McDermid and excluded Rogers, and who likewise

confirmed that the second robber was taller than the buck-toothed man. Coupled with the

testimony of Hagan and Sapp, who directly contradict McDermid‟s account, these

disinterested eyewitnesses establish that the weight of the evidence is contrary to a

conclusion, beyond a reasonable doubt, that Rogers was the second robber.

               McDermid‟s self-interested testimony was thoroughly impeached, and

presented grave issues of credibility. His shaky testimony is the only evidence that Rogers

was the shooter -- and it is vastly outweighed by the disinterested eyewitnesses who said that

the second robber was taller (not significantly shorter, as McDermid claimed) and who

contradicted critical elements of McDermid‟s account of his getaway. The State‟s Response
                                             -2-


does not even discuss the weight of this evidence because it simply disregards the most

important evidence that is directly contrary to the jury verdict and McDermid‟s account.

               As for the prosecutor‟s rebuttal closing, the State tries to brush off the

improper argument based on the “escape plan” by asserting that the prosecutor did not argue

that evidence as proof of identity. But the transcript flatly refutes that assertion. The

transcript likewise refutes the State‟s unsupportable argument that there was no comment on

Rogers‟s silence in the rebuttal closing. And the State claims there was no misstatement of

McDermid‟s plea agreement, even though it is clear that McDermid only had immunity if he

testified consistently with his prior statements accusing Rogers and therefore -- contrary to

the prosecutor‟s highly misleading argument in rebuttal closing -- he had enormous

incentives to lie. The Amended Motion for New Trial raises yet further prejudicial and

inflammatory errors in the rebuttal closing -- the prosecutor‟s improper vouching for

McDermid, the prosecutor‟s condemnation of Rogers as a “liar” even though he did not

testify, the prosecutor‟s ridiculing of the defense, and the prosecutor‟s improper comment on

a “gruesome” photograph.

               The cumulative effect of these improprieties in the rebuttal closing destroyed

Rogers‟s chance to have the jury engage in a fair, dispassionate review of the evidence.

Particularly when combined with the extremely weak case against Rogers, the cumulative

impact of these many improprieties misled the jury in its evaluation of the evidence and

tainted its fair consideration of the facts. Entirely apart from the weight of the evidence,

which by itself strongly supports a new trial, the cumulative and highly prejudicial effect of

these various improprieties in the rebuttal closing are a separate basis for a new trial.
                                             -3-


I.     THE STATE HAS NO EFFECTIVE ANSWER TO THE REASONS THIS
       VERDICT IS CONTRARY TO THE WEIGHT OF THE EVIDENCE

       A.      The State Relies on the Wrong Legal Standards

               In response to the defense‟s argument that the verdict is contrary to the

weight of the evidence, the State makes three assertions of the governing legal standard that

are simply incorrect.

               First, the State says (Response at 1) that “[t]he applicable standard is whether

the preponderance of the evidence supports the Jury‟s verdict.” Later it says (Response at 3)

that “[t]he Court need only find that the evidence supports the jury verdict by a

preponderance.” But that is the wrong legal standard. The question is whether “[t]he

verdict is contrary to . . . the weight of the evidence.” Fla. R. Crim. P. 3.600(a)(2). In

particular, under Moore v. State, 800 So. 2d 747, 749 (Fla. 5th DCA 2001), the question is

whether the “weight of the evidence” -- namely, the “balance or preponderance of the

evidence,” the “greater amount of credible evidence” -- is contrary to the jury verdict. This

accordingly requires a determination whether a “greater amount of credible evidence” is

contrary to the jury finding that there is no reasonable doubt that Rogers was the shooter.

See Amended Motion at 4-5, 10-11.1 The State‟s Response, by disregarding essential




1
        Moore establishes that “[t]he „weight of the evidence‟ is the „balance or
preponderance of evidence.‟ . . . It is a determination of the trier of fact that a greater amount
of credible evidence supports one side of an issue or cause than the other.” 800 So. 2d at
749 (quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)). Thus, where the issue is
whether guilt has been established beyond a reasonable doubt, the question under Moore and
Rule 3.600(a)(2) is whether the “weight of the evidence” is contrary to the finding of guilt
beyond a reasonable doubt. Put differently, under Moore, the question is whether the
“weight of the evidence” -- a “greater amount of credible evidence” -- supports a finding of
reasonable doubt as contrasted with the evidence supporting a finding of no reasonable
doubt.
                                             -4-


evidence, focuses erroneously on whether there is sufficient evidence to support the verdict

rather than on whether the weight of the evidence is contrary to the verdict.2

               Second, the State asserts (Response at 1) that “[t]he test for determining if a

new trial is warranted turns on an express or implied finding that the jury has been deceived

as to the force or credibility of the evidence.” That is the standard for a new trial in a civil

case, but it is not the standard for a new trial in a criminal case. See Moore, 800 So. 2d at

749-50.3 In State v. Hart, 632 So. 2d 134, 135 (Fla. 4th DCA 1994), the court made explicit

that the test for granting a new trial in a criminal case is whether the weight of the evidence

is contrary to the verdict, and that the “duty to grant a new trial is even stronger” where the

jury is “deceived as to the force and credibility of the evidence.” Therefore, contrary to the

State‟s assertion, it is not necessary to find that the “jury has been deceived” before granting

a new trial in a criminal case. Rather, Rule 3.600(a)(2) is based solely on the weight of the




2
         Thus, in its recitation of the evidence, the State begins (Response at 3) by saying that
“[t]he following 12 points presented at trial are the basis of the murder conviction.”
(Emphasis added.) And later it says that “[t]he evidence adduced at the trial, when weighed
in its totality clearly supports the jury‟s verdict.” (Response at 17 (emphasis added).) But
that is not the issue. The “basis” for the jury‟s verdict, or whether the evidence merely
“supports” it, does not answer whether the weight of the evidence is contrary to a jury‟s
finding of guilt beyond a reasonable doubt. See Amended Motion at 4-6.
3
        The State cites a single case, State v. Harris, 660 So. 2d 285, 286 (Fla. 5th DCA
1995), and it claims (Response at 1-2) that Harris reversed the trial court‟s granting of a new
trial “based on the manifest weight of the evidence.” But that misstates Harris and its
relevance here. In that case, the trial court had not granted a new trial but had instead set
aside a jury verdict and adjudged the defendant guilty of a lesser-included offense. This
implicated the different standards of Rule 3.620, “when the evidence does not sustain the
verdict for the offense charged,” and the trial judge made no finding that the verdict was
contrary to the weight of the evidence under Rule 3.600. Harris did cite to the civil standard
for a new trial based on the “manifest weight of the evidence,” and it noted the rule in civil
cases that the trial judge may not “ac[t] as an additional juror.” Id. But it is clear that the
standard in criminal cases is broader. See Amended Motion for New Trial, at 5 note 2 (cases
distinguishing the criminal versus civil standards for new trial). In particular, the Fifth
District‟s more recent decision in Moore specifically recognizes that “the only way to make
that determination [as to the weight of the evidence] is for the trial court to act as an
                                                                                    (continued…)
                                            -5-


evidence -- not whether the jury was misled or deceived. See Moore, 800 So. 2d at 750 (the

rule “requires that a new trial be granted where the verdict is contrary to the weight of the

evidence”) (emphasis added).

               Third, the State claims (Response at 2) that the Court‟s ability to grant a new

trial or to weigh the evidence is somehow different in a case where the defendant did not

testify. Nothing in the language of Rule 3.600(a)(2) or in the case law supports that

position. The rule “enables the trial judge to weigh the evidence and determine the

credibility of witnesses so as to act, in effect, as an additional juror.” Moore, 800 So. 2d at

749 (quoting Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla. 1981)). Whether or not Rogers

testified, the Court may still evaluate McDermid‟s credibility -- based on such factors as his

enormous incentives to lie, the changes in his testimony, the way that the prosecution

coached out inconsistencies in his account, the many eyewitnesses who directly refuted his

claim that his accomplice was shorter, and the testimony of Hagan and Sapp who

specifically contradict McDermid‟s account of his getaway. Given all of the evidence that

either directly contradicted McDermid or called his credibility into serious question, the

State is profoundly wrong in claiming (Response at 3) that his “testimony is literally

undisputed.”

       B.      The State’s Response Does Not Address the Weight of the Evidence
               Because It Ignores the Critical Evidence that the Second Robber Was
               Taller and that the Eyewitness with the Best View of the Robbers
               Contradicts McDermid

               In a motion that turns centrally on an evaluation of the weight of the

evidence, it is particularly revealing that the State does not even discuss the strongest


(…continued)
additional juror.” Moore, 800 So. 2d at 750 (quotation omitted). This language from Moore
confirms that Harris did not articulate the standard governing motions under Rule 3.600.
                                             -6-


evidence that gives rise to reasonable doubt. It ignores and offers no answer to the critical

eyewitness identifications establishing that the second robber was taller than McDermid.

(See Amended Motion at 14-15.) Further, it ignores and offers no answer to the

identification by Joel Bennett, who was described as the eyewitness with the single best

view of the robbers, and the person who saw them twice without their masks. (See

Amended Motion at 15.) Bennett was clear that the second robber was taller than the buck-

toothed man; he immediately picked out McDermid as that buck-toothed man when shown a

photo line-up; and he ruled out Rogers as the other man because he did not identify Rogers

in any photo line-ups.

               This is central evidence that directly refutes McDermid‟s testimony that his

accomplice was shorter. (McDermid testified at trial that Rogers was five or six inches

shorter than he.) Every eyewitness said that the second robber was taller than the buck-

toothed man, including in particular the eyewitness who had by far the best view of the

robbers and saw them twice without masks. Even Ketsy Day, who claimed to be “sure” in

her identification of Rogers (even though she had said two years after the crime that she

could not see the face of the second robber), agreed that the second robber was taller than

McDermid. (Amended Motion at 14 & n.6.) The State never offered a single eyewitness

who said that the second robber was shorter than McDermid.

               The disinterested identifications of these many eyewitnesses, standing alone,

establishes the weight of evidence contrary to the jury verdict. McDermid‟s self-interested

accusations can be believed only if the jury rejected the disinterested identifications of all of

these eyewitnesses.
                                            -7-


               Remarkably, the State‟s Response is entirely silent on this fundamental flaw

in its evidence.4 The State never explains how the jury could conclude -- beyond a

reasonable doubt -- that McDermid‟s accomplice was five or six inches shorter than he,

when every eyewitness identification in fact indicated that the second robber was taller than

McDermid. Viewed in terms of the weight of the evidence, these eyewitness identifications

are dispositive. They greatly outweigh the probative force of McDermid‟s self-interested

accusations. And in particular, since the question is whether the weight of the evidence

supports the conclusion that there is no reasonable doubt about McDermid‟s account, the

eyewitness identifications directly contradicting his testimony are alone enough to support

the conclusion that the verdict is contrary to the weight of the evidence.

       C.      The State’s Response Offers No Meaningful Answer to the Testimony of
               Hagan and Sapp, Which Directly Contradicts McDermid’s Account

               The weight of evidence contrary to the jury verdict is not confined to the

eyewitnesses identifying the second robber as taller. In addition, another central piece of

evidence that directly contradicts McDermid is the testimony of Hagan and Sapp, who

testified that they saw McDermid running along the breezeway of the Holiday Inn, saw him

unlock the door of the getaway car, and saw him drive away by himself. The Amended

Motion (pages 15-17) explains the many reasons that the testimony of Hagan and Sapp is

devastating to McDermid‟s account.




4
         Likewise, in its opening statement and closing arguments, the prosecution never
dealt with the issue of the robbers‟ heights and never explained how the jury could convict
in light of the eyewitness identifications establishing that McDermid‟s accomplice was
taller. The prosecution simply ignored the most important evidence contradicting its theory.
This is particularly troubling in a case where the prosecution‟s closing argument encouraged
the jury to render a verdict based on improper and erroneous inferences that had nothing to
do with the facts.
                                            -8-


               The State is in full retreat on this evidence. It first claims (Response at 13)

that “[a]rguably, the person they observed had nothing to do with the attempted robbery and

murder.” But the person they saw drove away in the getaway car that McDermid described

driving away in after the shooting.

               The State next claims (Response at 13) that “[a]ssuming the witnesses did

observe one of the armed gunmen, it was Rogers -- not McDermid -- they saw.” But Sapp

described the man on the breezeway as being approximately his height (5‟10”). Hagan said

that the man‟s front teeth appeared to be protruding, as though he had buck teeth, unless he

was biting his bottom lip. More fundamentally, McDermid himself testified that he ran

across the breezeway after the gunshots, and both Hagan and Sapp testified that they saw the

man running past them on the breezeway after they heard those gunshots. The 1984 tape-

recorded preparation of McDermid confirmed that the prosecutor, the State‟s investigator

and McDermid himself all believed that Happ and Sagan had seen a buck-toothed man who

fit McDermid‟s description running across the breezeway.5

               Thus, it is not meaningfully open to dispute that Hagan and Sapp saw

McDermid on the breezeway. And their testimony is yet further weight of the evidence that

directly contradicts McDermid‟s account. Hagan and Sapp squarely refute McDermid‟s

claim that Rogers was the shooter and got into the car after McDermid was already there.

They also refute McDermid‟s claim that Rogers was there that night, because the fact that



5
        In contrast to the direct evidence that Hagan and Sapp saw McDermid on the
breezeway, the State resorts to the implausible argument that they must have seen Rogers
because he was wearing a blue jean jacket in an arrest photo taken three months after the
Winn-Dixie crime. The fact that Rogers wore a generic blue-jean jacket three months later
is no basis for showing that Hagan and Sapp saw Rogers that night -- particularly because
their descriptions match McDermid, not Rogers, as confirmed in their trial testimony and the
1984 tape-recording.
                                             -9-


McDermid drove away alone makes it impossible to explain how Rogers could have been at

a hospital in Orlando several hours later. See Amended Motion at 17.

               In sum, Hagan and Sapp are additional disinterested witnesses who directly

contradict McDermid on essential elements of his testimony. Putting Hagan and Sapp

together with all of the eyewitnesses who describe the second robber as taller than

McDermid, the weight of the evidence provided by the disinterested witnesses is clearly

contrary to a conclusion beyond a reasonable doubt that Rogers was at the Winn-Dixie, let

alone that he was the shooter.

       D.      The State Relies on Inferences from Indirect Evidence that Are Not
               Probative of Guilt and that Have Far Less Weight than the Eyewitness
               Identifications and the Testimony of Hagan and Sapp

               Rather than relying on the disinterested testimony of the eyewitnesses who

were at the Winn-Dixie and its environs that night -- testimony that cuts overwhelming

against a guilty verdict -- the State relies almost entirely on evidence that requires indirect

inferences or that cannot logically support any inference at all of guilt. Most of the evidence

has no probative value unless McDermid‟s testimony is also credited. And none of this

evidence, except for McDermid‟s self-interested testimony, is any proof that Rogers was the

shooter. Even if all of this evidence is given its full weight, it is vastly outweighed by the

direct evidence of the eyewitnesses who were there and described the robbers in a way that

flatly contradicts McDermid and the State‟s theory.

               The State‟s evidence is that Rogers “must” be guilty because he had

fabricated a stolen gun report, or created an escape plan, or supposedly had his father

dispose of a gun, or rented a car used in the crime, or was a better shooter than McDermid,

etc. But none of this is direct evidence of Rogers‟s presence at the scene of the crime, and

all of it requires indirect inference if not outright speculation to leap to the conclusion that
                                            - 10 -


Rogers was McDermid‟s accomplice. Even if credited in full (which it should not be), this

indirect evidence does not come close to the weight of the eyewitness identifications who

were there that night and who directly refute the State‟s theory that McDermid‟s accomplice

was a much shorter man.

                In particular, the State relies on the following in its Response:

                1.     Rogers’s Gun Purchases and Possession of Shell Casings. The

State presented evidence that Rogers purchased two guns in the fall of 1981. McDermid

testified that he owned one of those guns, and further that Rogers collected the casings from

that gun when they went target-shooting together. The fact that shell casings found at the

scene of the killing matched casings in Rogers‟s house is thus no proof at all that Rogers

was the shooter or was even at the Winn-Dixie that night. Nor does it prove which gun was

used in the shooting. If McDermid shot Smith, using the gun owned by McDermid, the shell

casings at the scene would in fact match casings in Rogers‟s house -- since by McDermid‟s

own testimony Rogers collected those shells.

                2.     Opal Rott’s Testimony. The testimony of Opal Rott presented

serious problems of hearsay.6 In any event, her testimony was thoroughly impeached at trial

-- she could not remember that McDermid had ever been arrested, nor that he had served

eight years in prison. The only point on which she purported to have a clear memory was

the scripted testimony about Jack Rogers, a man she acknowledged she had met only a few

times in her life.


6
        Jack Rogers was interviewed by the State‟s investigator and, in a recorded
conversation, specifically denied making the statement that Opal Rott described in her
testimony. Given that lack of corroboration, and other circumstances, the defense had
argued that the Rott testimony should not have been admitted. At this stage, in evaluating
the weight of the evidence, the Court may properly take account of the evidentiary problems
of this evidence.
                                            - 11 -


                Aside from being impeached, Rott‟s testimony was implausible -- she

asserted that Jack Rogers, a man she had met only a few times, had walked into her kitchen,

made a statement about throwing a gun into the river, said nothing more, and walked out. It

is improbable, at best, to think that such a conversation would have ever occurred between

two people who barely knew each other, without anything being said before or after Rogers

supposedly made this damaging statement. And this was from an 80-year-old woman,

testifying to support her son-in-law, claiming perfect recall of a conversation that happened

20 years ago.

                While the State asserts (Response at 5) that her testimony corroborates

McDermid, that is only because of McDermid‟s assertion that he had talked to Rogers about

the supposed fact that his father had disposed of the gun. Rott thus corroborates McDermid

only if it is assumed that McDermid is telling the truth about that conversation with Rogers.

But even more fundamentally, even if Rott‟s testimony is believed in full, it is no proof that

Rogers was the shooter. If McDermid were the shooter, and Rogers was his accomplice,

Rogers would have had the identical incentive to dispose of the gun -- assuming (contrary to

the defense‟s view) that Rott can be believed at all.

                Further, even if Rott is credited in full, her testimony does not establish that

Rogers was McDermid‟s accomplice that night, let alone the shooter. Rott testified that

everything “would be ok” so long as “Bobby kept his mouth shut.” That was a reference to

McDermid, not Rogers. Even if Rott is believed, the family could have been taking steps to

throw away a gun to protect McDermid, not Rogers. Nothing on the face of Rott‟s

statement suggests an effort to protect anyone other than “Bobby.”

                3.     The Stolen Gun Report. Even accepting the State‟s argument that

Rogers fabricated a stolen gun report before his first trial, that evidence is at best highly
                                           - 12 -


ambiguous as any proof of guilt. Rogers was representing himself pro se in his first trial,

and may have overstepped in trying to explain away evidence. It is consistent with

innocence for a pro se defendant to try to strengthen his defense by fabricating corroborating

evidence, particularly when he perceived that McDermid was prepared to lie to establish a

case against him. This is not to excuse the fabrication if it occurred, but it cannot be given

meaningful weight as substantive proof of guilt or innocence, particularly in a second trial

where the defense did not even rely on that evidence.

               More fundamentally, the evidence presented at the second trial established

that the ownership and possession of guns cannot serve as proof of Rogers‟s participation in

the Winn-Dixie crime and certainly cannot prove that he was the shooter. McDermid

testified that he owned and had possession of one of the guns purchased by Rogers in the fall

of 1981; and because Rogers collected the shell casings from McDermid‟s gun when they

went target-shooting, the match between casings found at the shooting and in Rogers‟s

house are fully consistent with the conclusion that McDermid was the shooter and Rogers

was 100 miles away in Orlando at the time. Thus, whether or not Rogers‟s other gun was

stolen, and whether or not he fabricated a report that the gun was stolen, that does not

establish that he was even at the Winn-Dixie, and certainly not that he was the shooter.

               Further, the evidence suggests that the missing gun was McDermid‟s and not

Rogers‟s. McDermid acknowledged that one of the Star 45 pistols was his, yet no guns

were found when his house was searched. Rogers‟s Star 45 was seized, but the State

concedes that it was not the murder weapon. The only evidence that the missing gun was

Rogers‟s, and not McDermid‟s, is McDermid‟s self-serving testimony. The more important

point, as noted above, is that the guns cannot prove Rogers‟s involvement in Winn-Dixie or

whether he was the shooter. But the evidence certainly suggests that McDermid‟s gun was
                                             - 13 -


the one the police never found -- further supporting other evidence that contradicts

McDermid and points to him as the shooter.

               4.         Rogers’s Former Testimony. The State asserts (Response at 6-7)

that, at his first trial, Rogers “lied under oath regarding the alleged theft of the murder

weapon” and that he “also lied when he testified at the first trial that he purchased the

second Star 45 handgun for his wife.” The State‟s purported support for its assertion that

these were lies is the testimony of McDermid, who obviously could be the one lying. The

State in fact acknowledges (Response at 3 n.1) that it cannot establish what gun was the

murder weapon and it ultimately has nothing but McDermid‟s testimony on these points --

which therefore adds nothing to the basic defects and weaknesses in McDermid‟s self-

interested accusations.

               The defense acknowledged the fabrication of the stolen gun report in its

opening statement at trial, but it did not say that Rogers‟s testimony on these other points

was false. Rogers was straining to document and support his testimony, and he went too far

-- but this is fully consistent with the conduct of an innocent man proceeding pro se in the

face of accusations from someone he believed to be lying to support the State‟s case. Again,

however, the more fundamental point is that these issues of gun ownership, or whether one

was stolen, are not proof that Rogers was the shooter or even at the Winn-Dixie that night.7

               5.         Rogers’s Alibi. The State curiously relies (Response at 7-8) on what

it claims are weaknesses in the testimony of Sheryl Rogers as purported proof of its case

against Rogers. This reflects just how flawed the State‟s case is. Sheryl Rogers gave


7
          It would also be contrary to Fla. R. Crim. P. 3.640 to rely on Rogers‟s prior
testimony as proof of guilt: “The testimony given during the former trial may not be read in
evidence at the new trial” unless the witness is “absent from the state, mentally incompetent
. . . , physically unable to appear . . . , or dead.”
                                           - 14 -


credible testimony, but in any event any gaps or weaknesses in her memory cannot be

affirmative proof of the State‟s case.

               Further, the hospital records introduced into evidence -- by stipulation --

establish clearly that Rogers was at the hospital in Orlando on the night of the murder. The

State has no explanation for how Rogers could have been both in St. Augustine and at the

hospital in Orlando unless -- as McDermid claimed -- Rogers drove away in the getaway car

with McDermid. But the testimony of Hagan and Sapp refute McDermid on this essential

point and flatly contradict the State‟s essential theory that Rogers and McDermid drove

away together from the Winn-Dixie. See Amended Motion at 17. In addition, Sheryl‟s

testimony that her father was at home before bedtime on the night of her sister‟s injury

provides even further support that Rogers could not have been at the Winn-Dixie, 100 miles

away, committing a robbery at roughly the same time.

               6.      The Escape Plan. The State continues to rely heavily on Rogers‟s

escape plan as supposed proof of his guilt. But the escape plan cannot be proof of guilt of

this crime when Rogers also faced three other prison sentences that ran for more than his

natural life. See Merritt v. State, 523 So. 2d 573, 574 (Fla. 1988); Evans v. State, 692 So. 2d

966, 969-70 (Fla. 5th DCA 1997). While the State emphasizes that Rogers wrote the escape

plan a few days after he was arraigned on the Winn-Dixie charges, the key fact is that he had

been moved at that time to the lower security St. Johns County Jail, from which escape was

more plausible. In these circumstances, it is entirely ambiguous whether the plan reflects a

consciousness of guilt or rather an effort to seize an opportunity to escape the sentences that

had already been imposed on him. Further, even assuming that the plan shows a

“consciousness of guilt,” this is no proof of the identity of the shooter because the non-

shooting accomplice would share in the guilt for the murder.
                                            - 15 -


               The State‟s continued heavy reliance on this escape plan (Response at 10) as

creating the “inescapable inference” that Rogers committed the murder of David Smith only

demonstrates the weaknesses in its position on this new trial motion. The State does not

even mention the conclusive eyewitness identifications that the second robber was taller

than McDermid. It does not even mention the critical identification by Joel Bennett, the

eyewitness with the best view of the two robbers. It instead takes refuge in an “inescapable

inference” it tries to derive from an escape plan written two years after the fact -- even

though it knows (although the jury did not ) the reasons why the escape plan is completely

ambiguous as proof of consciousness of guilt of this crime. Far from supporting the State‟s

position, its heavy reliance on speculative inferences drawn from this indirect evidence,

while studiously avoiding mentioning the critical direct evidence on the heights of the

robbers, demonstrates that it cannot carry an argument based on the weight of the evidence.

               7.      The Medical Examiner’s Testimony. Again demonstrating that it

relies on indirection and speculation while ducking direct evidence such as the heights of the

robbers, the State argues (Response at 11-12) that the spacing of the shots shows that Rogers

must have been the shooter. This is of course purely speculative. Two shots fired in quick

succession from close range at a stationary target do not reflect any skill -- they merely

reflect that the trigger was pulled in quick succession. While the State claims that Rogers

“was a better shot than McDermid” there is no evidence that these shots required any

particular skill or that McDermid could not have made them.

               8.      The Testimony of Hagan and Sapp. As discussed above (pages 7-

8), the State is flatly wrong in its argument that Hagan and Sapp saw Rogers rather than

McDermid running along the breezeway. McDermid testified that he ran along the

breezeway, after the gunshots occurred, and Hagan and Sapp saw a single man on the
                                           - 16 -


breezeway, matching McDermid‟s description, after they heard the gunshots. In the tape-

recorded preparation session in 1984, McDermid, the prosecutor, and the State‟s investigator

all accepted that these two witnesses had seen McDermid. At the very least, the weight of

the evidence cuts heavily in favor of the conclusion that Hagan and Sapp saw McDermid.

And once that conclusion is accepted, the disinterested testimony of Hagan and Sapp is by

itself dispositive, weighty evidence that severely undermines the State‟s case and

McDermid‟s testimony. See Amended Motion at 15-17.

               9.      The Rental Car Agreements. The fact that Rogers rented the

getaway car does not establish that he was at the Winn-Dixie that night, nor is it any proof

that Rogers was the shooter. Certainly, this evidence has no meaningful weight when

compared to the eyewitness descriptions of the heights of the robbers, the eyewitness

identification by Joel Bennett, and the testimony of Hagan and Sapp.

               10.     Ketsy Day’s Testimony. Ketsy Day‟s purported identification of

Rogers as the second robber was thoroughly impeached. First, she testified at the first trial

that she could not see the face of the second robber. Second, at both the first and second

trials, she testified that the second robber was taller than McDermid -- which directly

contradicts her identification of Rogers. Third, the robbery lasted no more than 15 seconds,

and during that time McDermid constantly told Day to keep her eyes on the register and not

to look up. It is implausible to suggest that she could have seen the face of the second

robber, behind a mask at the other end of the store, in these circumstances -- as she

acknowledged at the first trial.8


8
        It also bears emphasis that Day‟s identification is tainted by the prosecution‟s
violation of a court order before the first trial. Day was unable to identify Rogers until after
she was shown a photo line-up that included Rogers, in direct violation of the trial court‟s
order prohibiting that photo line-up. See Motion to Exclude Testimony of Ketsy Day (filed
                                                                                  (continued…)
                                           - 17 -


               In any event, for present purposes the question is not whether the jury might

have believed Ketsy Day but whether the weight of the evidence is contrary to the

conclusion that there is no reasonable doubt that Rogers was the second robber in the store.

Day‟s testimony, on its face, presents reasonable doubt -- since she was clear that the second

robber was taller and had previously testified that she could not see the face of the second

robber. But beyond Day, we have the identifications of all other eyewitnesses confirming

that the second robber was taller than McDermid. Joel Bennett in particular was clear that

the second robber was taller, and he excluded Rogers by not identifying him in any photo

lineups. Unless all of those disinterested eyewitnesses are disbelieved, Day could not have

seen Rogers that night.

       E.      McDermid Is Not a Credible Witness and the Weight of the Evidence
               Contradicts His Accusations

               While the State tries to paint McDermid as a credible witness, he is not.

Most fundamentally, the core proposition of his testimony is that his accomplice at the

Winn-Dixie that night was shorter than he, by five or six inches. But every eyewitness

identification is that the second robber was taller than McDermid. That is what Joel Bennett

said, and he had the best view of the robbers. That is what Ketsy Day said. And that is what

every other eyewitness in the Winn-Dixie said.

               This critical contradiction of McDermid‟s account is not even mentioned in

the State‟s Response. Standing alone, given that crucial divergence between McDermid‟s

uncorroborated accusation and the statements of all eyewitnesses, the weight of the evidence



(…continued)
5/17/02). While this Court did not accept the defense‟s argument that Day‟s testimony
should be excluded on these grounds, at this stage, in evaluating the weight of the evidence,
it is appropriate to take account of the questionable validity of her identification.
                                             - 18 -


is contrary to a verdict beyond reasonable doubt that Rogers was McDermid‟s accomplice

that night. The weight of the evidence contrary to the verdict is stronger when one takes

account of the testimony of Hagan and Sapp, which directly and fundamentally contradicts

McDermid (pages 7-8, supra).

                While the State suggests (Response at 16-17) that McDermid enhanced his

credibility by changing his prior account of the route he took as he ran away from the Winn-

Dixie, in fact that change in his testimony devastated McDermid‟s credibility. McDermid

clearly realized that his prior account meant that he had run just past the spot where David

Smith was shot and killed. Further, McDermid testified that he pulled off his mask when he

reached the end of the Winn-Dixie walkway, so that if he ran past the dumpsters Smith

would have seen him without his mask. Thus, if McDermid took that route past the

dumpsters, as he previously testified, and without his mask, it would give rise to an

inescapable inference that he was in fact the shooter and killed Smith after Smith saw him

without his mask.

                So, McDermid changed his testimony at the second trial. That change on

such a central element of McDermid‟s story only shows and reinforces his self-interested

reasons to lie, to place blame on someone else and to deflect blame from himself. Far from

enhancing his credibility, this reversal by McDermid demonstrates that his testimony cannot

be credited because he has such obvious reasons to lie to avoid the conclusion that he was in

fact the shooter that night.

                While the State suggests (Response at 16-17) that this essential alteration in

McDermid‟s testimony can be explained away due to his having a fuller opportunity to

review the site than he did before the first trial, in fact the question of the route taken by

McDermid as he fled the Winn-Dixie was the subject of extensive discussion and
                                            - 19 -


preparation with McDermid before the first trial. In the tape-recorded preparation session,

the prosecutor and the State investigator (likely understanding the significance of the point)

pressed McDermid on his route, suggesting that it would have been shorter and more

sensible for him to have gone to the right of the dumpsters rather than the left. And they

indicated they would be bringing photographs of the site to show him the next day, and

would be drawing a diagram of the site for him to study, and would discuss the issue further

at that time. (Those further discussions apparently were not tape-recorded.) Clearly, the

prosecutor and State‟s investigator were focused on this element of McDermid‟s account,

reinforcing the implausibility of his later suggestion that he realized in the midst of the

second trial that all of his prior deposition and trial testimony on this point was a “big

mistake.” And the State‟s argument that McDermid did not have a chance to study the site

before the first trial is contradicted by the fact, as reflected in the 1984 tape-recorded

session, that the State‟s investigator supplied McDermid with photographs and diagrams of

the site to study.

                The credibility of McDermid‟s new claim that he ran right rather than left,

past the dumpsters, was further undermined by the inherent implausibility of what he

claimed to have heard as he ran. He claimed that, running as fast as his “little legs could

carry him,” he heard Rogers behind him “veering” to the left past the dumpsters -- but he

never had any good explanation for how he could hear someone “veer” behind him, let alone

knowing the direction in which that person was “veering.” This new point, which

McDermid had not made in the first trial, was an obvious concoction to align with his new

claim that he had run in a different direction, and to come up with an explanation that would

put Rogers rather than himself at the dumpsters. McDermid also said that he heard a

“shoulder being clasped” behind him as he ran away -- but this too is entirely implausible. It
                                           - 20 -


borders on absurdity for McDermid to suggest that he could hear contact with the shoulder --

as contrasted with the stomach, or back, or thigh, or some other part of the body. By

reaching too far for a detail that he could not have heard, McDermid demonstrated that he

was not credible and was straining to convict rather than telling the truth.9 His testimony

about what he heard was not credible, and among other things it casts further doubt on his

claim about the route he took as he ran out of the Winn-Dixie.

               More broadly, the State in its Response (at 17) repeats the flat misstatement

of McDermid‟s plea agreement that the prosecutor made in the rebuttal closing. It says that,

because McDermid was granted immunity, he “could have testified that he murdered David

Eugene Smith without threat of prosecution” and thus had no motivation to lie. That is

simply wrong. McDermid‟s plea agreement is dependent on testimony consistent with his

prior accusations of Rogers as the shooter. See Metellus v. State, 2002 WL 1084166, No.

5D01-1044 (Fla. 5th DCA May 31, 2002) (plea agreement invalidated where witness‟s trial

testimony varied from what he had told the police before entering into the plea agreement).

McDermid thus had overwhelming incentives to lie, to avoid a possible death sentence for

himself. And if he had now acknowledged that he was the shooter, clearly he would have

been subject to prosecution, and the immunity deal would have been thrown open.




9
        Only two plausible explanations can account for McDermid‟s claim that he heard the
clasping of a shoulder. Either he was adjusting his testimony to fit with the medical
examiner‟s testimony that Smith was shot first in the shoulder at close range; or he was
recalling his own struggle with Smith, in which he clasped Smith on the shoulder before
shooting him through the shoulder. In either event, it is clear that McDermid could never
have heard what he testified to.
                                            - 21 -


II.    THE PROSECUTOR’S REBUTTAL CLOSING ARGUMENT IS A
       FURTHER BASIS FOR A NEW TRIAL

               The Amended Motion for New Trial sets out six separate respects in which

the prosecutor‟s rebuttal closing argument was improper and misled the jury: (a) the

prosecutor specifically argued that supposed similarities between the “escape plan” and the

robbery-murder were proof of identity, in violation of the Williams Rule and the scope of

this Court‟s ruling admitting the escape plan into evidence; (b) the prosecutor misstated

McDermid‟s plea agreement by claiming that he could not be subject to prosecution even if

he acknowledged being the shooter; (c) the prosecutor improperly commented on Rogers‟s

silence; (d) the prosecutor improperly vouched for McDermid‟s credibility and repeatedly

called Rogers a “liar” even though he had not testified; (e) the prosecutor improperly

ridiculed the defense and defense counsel; and (f) the prosecutor improperly referred to a

“gruesome” photograph of the victim that had been excluded from evidence.

       A.      The Fundamental Error Standard Should Not Apply to the
               Determination of a New Trial Motion, But in any Event these Improper
               Comments Establish Fundamental Error

               The State begins by arguing that the defense must show fundamental error

since it did not raise contemporaneous objections to these arguments. The State does not

respond to Nigro v. Brady, 731 So. 2d 54, 56 (Fla. 4th DCA 1999), where the court held that

“the preservation rule which applies to raising issues on appeal does not apply to motions for

new trial.” Further, since many of these arguments by the prosecution necessarily misled

the jury in evaluating the evidence, they are a particularly strong reason for granting a new

trial: “[I]f the „jury has been deceived as to the force and credibility of the evidence,‟ then

the trial court‟s duty to grant a new trial is even stronger.” State v. Hart, 632 So. 2d 134,

135 (Fla. 4th DCA 1994) (quoting Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959))

(emphases added).
                                            - 22 -


               In any event, even if fundamental error must be established, that standard is

clearly met here. “[F]undamental error in closing occurs when the prejudicial conduct in its

collective import is so extensive that its influence pervades the trial, gravely impairing a

calm and dispassionate consideration of the evidence and the merits by the jury.” Caraballo

v. State, 762 So. 2d 542, 547 (Fla. 5th DCA 2000). That is precisely what happened in this

trial. The improper arguments by the prosecutor in rebuttal closing, his last remarks to the

jury, necessarily precluded it from a “calm and dispassionate consideration of the evidence.”

The jury was badly misled, and it was encouraged to rely on improper inferences and

premises rather than the evidence in rendering its verdict. Further, these errors must be

considered cumulatively, based on “the totality of the circumstances,” Fullmer v. State, 790

So. 2d 480, 482 (Fla. 5th DCA 2001), to take account of their collective impact in

undermining the jury‟s fair-minded evaluation of the evidence.

       B.      The Record Refutes the State’s Effort to Brush Off these Improper
               Arguments in the Rebuttal Closing

               The State addresses the merits of three of the six improper arguments from

the rebuttal closing.10 It tries to brush them off as proper, or as not raising the issue on

which the defense relies. But the transcript of the rebuttal closing argument, included as

Exhibit A to the Amended Motion for New Trial, refutes the State‟s efforts to defend the

propriety of these arguments.

               1.      The Argument that the Escape Plan Is Proof of Identity



10
        Three elements of the rebuttal closing argument are raised in the Amended Motion
for New Trial but were not part of the original Motion for New Trial and for that reason are
not addressed in the State‟s Response. They are (1) the vouching for McDermid‟s
credibility and the characterization of Rogers as a “liar,” (2) the ridiculing of the defense
theory and defense counsel, and (3) the reference to a “gruesome” photograph that was
excluded from evidence.
                                           - 23 -


               The defense argues (Amended Motion at 20-22) that the prosecutor‟s rebuttal

closing improperly relied on the escape plan as proof of identity, based on the supposed

similarities between the escape plan and the Winn-Dixie robbery-murder. The State does

not contest that such an argument would be in violation of the Williams Rule and would be

contrary to the purpose for which this evidence was admitted. Instead, it claims (Response

at 25) that its argument about the facts of the escape plan was simply to show

“consciousness of guilt.”

               The transcript flatly refutes the State‟s argument. Clearly, the prosecutor was

arguing that the supposed similarities showed that Rogers must have committed the Winn-

Dixie crime because he had written the escape plan. “Sound familiar? . . . Now, did we hear

that somewhere before? . . . Does it sound familiar?” (Tr. at 6-7.) “He‟s talking about

bringing guns in the jail, folks. Sound familiar to you? What about the Winn-Dixie,

bringing guns in there?” (Tr. at 5.)

               The prosecutor‟s emphasis on supposed similarities between the escape plan

and Winn-Dixie, and his repeated questions to the jury -- “Sound familiar?” -- were clearly

arguing that those similarities proved identity. There was no reason other than proof of

identity to harp on the supposed similar facts -- “bringing guns in,” “guns pointing at

people,” “US-1,” cars in a “motel parking lot,” “change of clothes,” etc. (Tr. at 5-7.) Those

points had meaning only as an argument that because those facts were found both in the

escape plan and the Winn-Dixie, Rogers had committed this crime. This argument went far

beyond any possible legitimate use of the escape plan evidence -- it was barred by the

Williams Rule and far exceeded the limited purpose for which this Court admitted the

evidence.

               2.      The Misstatement of McDermid’s Plea Agreement
                                             - 24 -


                As the State notes (Response at 26), the defense brought out the evidence that

McDermid had an immunity deal with the State in exchange for his testimony against

Rogers. The defense does not dispute that the State was permitted to argue inferences

contrary to those that the defense sought to draw from that immunity deal. But what the

State could not do was to mischaracterize the nature of the agreement -- particularly on the

fundamental question of whether McDermid had any incentive to lie.

                The State persists in its argument (Response at 27) that it “accurately recited

the terms of the agreement” and “therefore the jury was not misled.” This is clearly wrong.

The prosecutor did misstate the terms of the agreement in the most fundamental way -- by

arguing that McDermid “couldn‟t be prosecuted for the murder once he was granted

immunity.” (Tr. at 14.) The State thus badly misled the jury by suggesting that McDermid

had no motivation to lie because he could not be subject to prosecution for the murder, even

if he now acknowledged committing it.

                The State‟s argument was untrue. McDermid entered into a plea agreement

based on representations he had made to the police and prosecution about Rogers‟s role in

Winn-Dixie and other crimes. If he later testified in a manner contrary to those statements,

the plea agreement would be vitiated. See Metellus v. State, 2002 WL 1084166, No. 5D01-

1044, at *3 (Fla. 5th DCA May 31, 2002) (“While it is true that the written plea agreement

only required Metellus to testify truthfully, . . . it was established that „truthfully‟ meant as

Metellus had stated in his account of the events to the police.”).11 The prosecutor thus



11
        See also Spear v. State, 632 So. 2d 201, 202 (Fla. 1st DCA 1994) (“If a defendant
makes an intentional and material misrepresentation as to a factual matter which induces a
more lenient sentence, the defendant may not have a legitimate expectation as to the finality
of the sentence and double jeopardy protections might not preclude the subsequent
imposition of a corrected sentence.”).
                                              - 25 -


mischaracterized the plea agreement when he said that McDermid had no incentive to lie

and could not now be subject to prosecution even if he admitted being the shooter. To the

contrary, if McDermid had acknowledged that he was the shooter, and had thus

acknowledged that his prior statements to secure a plea deal were false, he would have

opened himself up to murder charges.

                McDermid‟s incentive to lie was at the heart of the case. And this argument

badly misled the jury on that core issue.

                3.      The Comment on Rogers’s Right to Remain Silent

                The State says (Response at 23) that the prosecutor‟s rebuttal closing made

no comment on Rogers‟s silence at trial. But again, that argument is conclusively refuted by

what the transcript says. The comment on silence is clearly reflected in the prosecutor‟s

argument: “Why didn‟t he do what McDermid did? Why didn‟t he step forward?

McDermid -- he‟s not a sympathetic figure. What he did was horrible. But did you hear

him up there on the stand?” (Tr. at 10.) And later, by arguing that the escape plan was a

“window into that man that you will not get any other way” (Tr. at 12), the prosecutor again

reinforced that Rogers had not testified and therefore there was not “any other way” for the

jury to have a “window into that man.”

                The State also is wrong in saying (Response at 24) that a comment on silence

“cannot act as grounds for a new trial.” A comment on silence is not inherently or in all

cases reversible error, but in combination with other errors and improprieties in closing it

can rise to the level of fundamental error by denying a defendant his right to a fair trial. See

State v. DiGuilio, 491 So. 2d 1129, 1136 (Fla. 1986) (“comments on silence are high risk

errors because there is a substantial likelihood that meaningful comments will vitiate the

right to a fair trial by influencing the jury verdict”).
                                           - 26 -


               Even more important, in this case, on its facts, the comment on silence was

particularly pernicious in its effect. The prosecutor did not merely comment on Rogers‟s

silence, but rather he used the comparison between Rogers‟s silence and McDermid‟s

testimony as a way to bolster McDermid‟s credibility. “Why didn‟t [Rogers] step forward?

McDermid -- he‟s not a sympathetic figure. . . . But did you hear him up there on the stand?”

(Tr. at 10.) Since this case turned so heavily on a determination of McDermid‟s credibility,

it was particularly unfair and improper for the prosecutor to rely on this comparison as a

basis to argue that McDermid should be believed because he “step[ped] forward.”

                                       CONCLUSION

               For the reasons addressed here and in the Amended Motion for New Trial,

the Court should order a new trial on the bases that (a) the jury verdict that Rogers was the

shooter, beyond a reasonable doubt, is contrary to the weight of the evidence, and (b)

improper and prejudicial arguments by the prosecutor in his rebuttal closing argument

misled and tainted the jury in its consideration of the evidence.

                                               Respectfully submitted,



                                               _________________________
Clyde E. Wolfe, Esq.                           Timothy C. Hester
Fla. Bar No. 302333                            Matthew E. Fishbein
10 McMillan Street                             Richard W. Smith
Suite 1                                        COVINGTON & BURLING
St. Augustine, FL 32084                        1201 Pennsylvania Avenue, N.W.
                                               Washington, D.C. 20004-2401
                                               (202) 662-6000

                                               Attorneys for Defendant
July 8, 2002

								
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