Date: 01-31-2008

Case Style:

Crosley Alexander Green v. State of Florida

Case Number: SC05-2265

Judge: Per Curiam

Court: Supreme Court of Florida on appeal from the Circuit Court, Brevard County

Plaintiff's Attorney: Not Avalable

Defendant's Attorney: Florida Attorney General's Office

Description: Tallahassee, Florida criminal defense appellate lawyers represented convicted of first-degree murder, kidnapping with bodily injury, and armed robbery.

Crosley Green appeals an order of the circuit court granting in part and
denying in part his motion to vacate his first-degree murder conviction and
sentence of death. He also petitions this Court for a writ of habeas corpus.1 The
State cross-appeals, challenging the trial court’s order granting Green a new
penalty phase. As explained below, we affirm the trial court’s order and deny
Green’s petition.
I. FACTS AND PROCEDURAL HISTORY
On direct appeal, we summarized the facts of the crime as follows:
Late in the evening of April 3, 1989, Kim Hallock and [Charles]
Flynn, whom she had dated, drove to a park in Flynn’s pickup truck.
They parked near dunes in a wooded area and smoked marijuana. As
they smoked, a sheriff’s car drove by and shined its spotlight, but did
not stop at the truck. After the sheriff’s car passed, a man walked in
front of the truck and stopped at the driver’s door. He warned Hallock
and Flynn to watch out for the police, then walked on.
A few minutes later, Flynn stepped outside the truck to relieve
himself. Hallock testified that she soon heard Flynn say nervously:
“Hold on. Wait a minute, man. Hold on. Put it down.” She retrieved
a gun from the truck’s glove compartment and put it under some jeans
on the seat next to her. She testified that when she looked outside the
truck, she saw the man she had seen earlier. He was now walking
around Flynn and carrying a gun. The man ordered Flynn to the
ground, then asked if either of them had any money. Hallock gave
him five dollars, but Flynn said he had no money.
The man then tied Flynn’s hands behind his back with
shoelaces. While tying Flynn’s hands, the man’s gun went off but did
not injure Flynn. The man pulled Flynn off the ground, found a wallet
in his pants, and threw it to Hallock, who counted $185.
The man ordered Hallock to start the truck and to move to the
center seat. He put Flynn in the passenger seat and started driving.
He forced Flynn and Hallock to ride with their heads down and held a
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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gun to Hallock’s side. During the ride, Flynn found the gun Hallock
had hidden under the jeans. The man stopped the truck at an orange
grove and tried to pull Hallock from the truck. Hallock freed herself
and ran around the truck, but the man caught her, threw her to the
ground, put a gun to her head, and threatened to blow her brains out.
Flynn got out of the truck and fired a shot, but missed the man.
Hallock jumped into the truck and locked the doors. She testified that
she saw the man fire a shot. Flynn yelled for her to escape, and
Hallock drove to a friend’s house and called the police.
When police arrived at the orange grove, they found Flynn
lying facedown with his hands tied behind his back. Authorities
found a loaded .22-caliber revolver nearby. Flynn was alive when
police arrived, but he stopped breathing several times and died of a
single gunshot wound to the chest before paramedics arrived.
Hallock later identified Green as the man she saw in the park.
In sentencing Green to death, the trial judge found four
aggravating factors: (1) Green was previously convicted of a violent
felony; (2) the capital felony was committed while Green was
engaged in kidnapping; (3) the murder was committed for pecuniary
gain; and (4) the murder was especially heinous, atrocious, and cruel.
The judge found no statutory or nonstatutory mitigating factors. He
also sentenced Green to four concurrent twenty-year sentences for the
robbery and kidnapping convictions. These terms were to be served
consecutively to the death sentence.
Green v. State, 641 So. 2d 391, 393-94 (Fla. 1994). We affirmed Green’s sentence
and conviction on direct appeal.2
2. Green raised nine issues on direct appeal: (1) the trial court erred in
admitting evidence of dog scent tracking; (2) the trial court erred in denying
Green’s motion to suppress Kim Hallock’s identifications; (3) the trial court erred
in denying Green’s motion for the jury to view the murder scene; (4) the trial court
erred in instructing the jury on flight; (5) the trial court erred in considering as
separate aggravating circumstances that Green committed the murder for pecuniary
gain and that Green committed the murder during a kidnapping; (6) the trial court
erred in finding that the murder was heinous, atrocious, or cruel; (7) the trial court
improperly refused to find mitigating circumstances; (8) the death penalty is
disproportionate; and (9) the heinous, atrocious, or cruel aggravator is
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Green subsequently filed a motion for postconviction relief pursuant to rule
3.851, Florida Rules of Criminal Procedure (1996), in which he raised several
claims and subclaims.3 The trial court held an evidentiary hearing, and
subsequently granted Green a new penalty phase proceeding based on counsel’s
failure to investigate Green’s prior New York robbery case.
II. GUILT PHASE ISSUES ON APPEAL
Green raises the following six guilt phase issues on appeal: (1) Green’s
convictions are constitutionally unreliable as established by newly discovered
evidence; (2) Green was denied due process under Brady v. Maryland, 373 U.S. 83
(1963), when the State suppressed evidence; (3) trial counsel provided
unconstitutionally vague. Green, 641 So. 2d at 394 n.1. We found no merit in the
first five issues. As to the sixth issue, we struck the heinous, atrocious, or cruel
aggravator, but found that the error was harmless given the other three aggravating
factors. Id. at 396. With regard to the seventh issue, we agreed that, although the
sentencing order did not strictly comply with Campbell v. State, 571 So. 2d 415,
420 (Fla. 1990), receded from on other grounds by Trease v. State, 768 So. 2d
1050, 1055 (Fla. 2000), its requirements were met anyway. See Green, 641 So. 2d
at 396 n.3. Finally, under the eighth issue, we found that, “in light of other cases,
the three remaining valid aggravating circumstances, and no mitigators, . . .
Green’s death sentence is proportionate.” Id. at 396.
3. Green claimed the following: (1) juror misconduct; (2)
unconstitutionality of the rules prohibiting juror interviews; (3) ineffective
assistance of counsel; (4) suppression of evidence; (5) presentation of false or
misleading testimony; (6) newly discovered evidence negating guilt; (7) various
issues relating to Green’s prior New York offense; (8) various issues regarding dog
tracking evidence; (9) unconstitutionality of Florida’s application of its death
penalty statute; (10) unconstitutionality of penalty phase jury instructions; (11)
cruel and unusual punishment; and (12) cumulative error.
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constitutionally ineffective assistance; (4) the trial court erred in denying relief
with regard to dog tracking evidence; (5) the rules prohibiting Green’s lawyers
from interviewing jurors are unconstitutional; and (6) the trial court erred in
summarily denying Green’s claims regarding juror misconduct and counsel’s
failure to challenge cross-race identification. We address each in turn below.
Because we affirm the trial court’s order granting a new penalty phase based on the
issue raised in the State’s cross-appeal regarding Green’s prior New York robbery
case, we do not reach the other penalty phase issues provisionally asserted in
Green’s postconviction appeal.
A. Newly Discovered Evidence
Green first argues that his convictions are constitutionally unreliable as
established by newly discovered evidence. To obtain a new trial based on newly
discovered evidence, a defendant must meet two requirements: First, the evidence
must not have been known by the trial court, the party, or counsel at the time of
trial, and it must appear that the defendant or defense counsel could not have
known of it by the use of diligence. Second, the newly discovered evidence must
be of such nature that it would probably produce an acquittal on retrial. See Jones
v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II). Newly discovered evidence
satisfies the second prong of this test if it “weakens the case against [the defendant]
so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting
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Jones v. State, 678 So. 2d 309, 315 (Fla. 1996) (Jones I)). In determining whether
the evidence compels a new trial, the trial court must “consider all newly
discovered evidence which would be admissible,” and must “evaluate the weight of
both the newly discovered evidence and the evidence which was introduced at the
trial.” Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). This determination includes
whether the evidence goes to the merits of the case or whether it
constitutes impeachment evidence. The trial court should also
determine whether the evidence is cumulative to other evidence in the
case. The trial court should further consider the materiality and
relevance of the evidence and any inconsistencies in the newly
discovered evidence.
Jones II, 709 So. 2d at 521 (citations omitted).
When the trial court rules on a newly discovered evidence claim after an
evidentiary hearing, we review the trial court’s findings on questions of fact, the
credibility of witnesses, and the weight of the evidence for competent, substantial
evidence. Melendez v. State, 718 So. 2d 746, 747-48 (Fla. 1998); Blanco v. State,
702 So. 2d 1250, 1251 (Fla. 1997). As with rulings on other postconviction
claims, we review the trial court’s application of the law to the facts de novo. Cf.
Hendrix v. State, 908 So. 2d 412, 423 (Fla. 2005) (reviewing de novo the trial
court’s application of the law to the facts in ruling on a postconviction claim that
the government withheld material evidence); Gore v. State, 846 So. 2d 461, 468
(Fla. 2003) (reviewing de novo the application of the law to the facts on a claim of
ineffective assistance of trial counsel).
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Green argues that his convictions are constitutionally unreliable in light of
the subsequent recantations of three of the State’s guilt phase witnesses. Green
also argues that the trial court erred by considering new evidence of guilt at the
evidentiary hearing, including the testimony of Layman Lane and mitochondrial
DNA (mDNA) testing on hair fragments found in the victim’s truck. We address
both of these arguments in turn.
(1) New Evidence Negating Guilt
First, Green argues that his convictions are constitutionally unreliable in
light of the fact that Sheila Green, Lonnie Hillery, and Jerome Murray, three of the
State guilt phase witnesses, have recanted their trial testimony. The trial court
made the following factual findings: First, Jerome Murray testified at Green’s trial
that, shortly after the murder, Green admitted committing it and said he was going
to disappear. At the postconviction evidentiary hearing, the defense introduced
three out-of-court statements made by Murray in which he recanted his trial
testimony. In these statements, Murray stated that his entire testimony was a lie
and that he was under pressure from law enforcement to fabricate. However, at the
evidentiary hearing, Murray claimed that he did not remember making these post-
trial statements because he was either tired or drunk. When questioned about
whether his post-sentencing statements were inconsistent with his trial testimony,
Murray exercised his Fifth Amendment privilege against self-incrimination.
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Second, Sheila Green is Crosley Green’s sister. At Green’s trial, Sheila
testified that the day after the homicide, Green admitted his involvement in the
shooting to her. Sheila had been convicted in federal court for drug offenses and
testified against Green in return for consideration for a more lenient sentence for
herself. At the evidentiary hearing, Sheila testified that her testimony at Green’s
trial was untrue and that Green never confessed to murdering Charles Flynn.
Third, Lonnie Hillery is the father of Sheila Green’s child, and was her
boyfriend at the time of Green’s trial. Hillery also testified that Green admitted his
involvement in the shooting to him. At the evidentiary hearing, Hillery said that he
made up the story as part of a plea deal to help Sheila receive a more lenient
sentence in her case.
We affirm the trial court’s denial of this claim. Jerome Murray’s out of
court recantation would not likely produce an acquittal on retrial because it would
only serve as impeachment to his original testimony. Further, the postconviction
court found both Sheila Green’s and Lonnie Hillery’s recantations incredible based
on their responses, demeanor, and body language. We generally defer to the trial
judge regarding these credibility determinations. See Melendez, 718 So. 2d at 747-
48; Blanco, 702 So. 2d at 1251; see also Bell v. State, 90 So. 2d 704, 704 (Fla.
1956) (“[R]ecanting testimony is exceedingly unreliable, and it is the duty of the
court to deny a new trial where it is not satisfied that such testimony is true.”).
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Moreover, when weighed against the other admissible evidence, the recantations of
Jerome Murray, Sheila Green, and Lonnie Hillery do not create a reasonable
probability of acquittal on retrial. See Jones, 591 So. 2d at 915.
(2) New Evidence of Guilt
Green further claims the trial court erred in considering the postconviction
testimony of Layman Lane (who testified that, a few days after the murder, Green
admitted shooting someone) and mDNA test results on several hairs found in
Flynn’s truck (which did not rule out Green as a contributor). Green cites
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002), arguing that substantive evidence of guilt must be found by a jury beyond a
reasonable doubt. However, Apprendi and Ring are inapplicable because they
require a jury determination only for facts which would increase the penalty for the
crime beyond the prescribed statutory maximum. On a motion for postconviction
relief alleging newly discovered evidence, the trial court is not imposing a
sentence, but rather, is considering all admissible evidence and evaluating whether
a new trial is warranted. See Jones, 591 So. 2d at 915. This includes new evidence
of guilt.
Moreover, even if the trial court erred in considering this evidence, such
error was harmless. The trial court listed a plethora of other admissible evidence
of Green’s guilt, including: (1) trial testimony of the surviving victim identifying
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Green as the person who robbed, abducted, and shot Charles Flynn; (2) trial
testimony of two witnesses who saw Green earlier in the evening at Holder Park,
the location where the abduction occurred; (3) trial testimony of Deputy O’Dell
Kiser tracking the scent from the abduction scene to Green’s sister’s residence near
Holder Park; (4) trial testimony of Sheila Green of Green’s admission to the
shooting, which is admissible upon retrial as substantive evidence; (5) trial
testimony of Lonnie Hillery of Green admitting to being involved in an altercation,
which is admissible upon retrial as substantive evidence; (6) trial testimony of
Jerome Murray that Green killed somebody and was going to disappear.
Therefore, the trial court’s decision did not hinge on Lane’s testimony or the
mDNA evidence. Even without this evidence, the dubious recantations of Murray,
Hillery, and Sheila Green do not weaken the case against Green so as to give rise
to a reasonable doubt as to his culpability. See Jones II, 709 So. 2d at 521.
B. Suppression of Evidence
Next, Green argues that he was denied due process under Brady when the
State suppressed documents related to a box of loose photographs used in creating
a composite drawing of the perpetrator. Because Green fails to prove materiality,
this claim is denied.
Brady requires the State to disclose material information within its
possession or control that is favorable to the defense. Mordenti v. State, 894 So.
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2d 161, 168 (Fla. 2004). To establish a Brady violation, the defendant has the
burden to show (1) that favorable evidence—either exculpatory or impeaching, (2)
was willfully or inadvertently suppressed by the State, and (3) because the
evidence was material, the defendant was prejudiced. Strickler v. Greene, 527
U.S. 263, 281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000).
To meet the materiality prong, the defendant must demonstrate a reasonable
probability that had the suppressed evidence been disclosed the jury would have
reached a different verdict. Strickler, 527 U.S. at 289. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Way, 760 So. 2d
at 913; see also Strickler, 527 U.S. at 290. The remedy of retrial for the State’s
suppression of evidence favorable to the defense is available when “the favorable
evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290 (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Giving deference to the trial court on
questions of fact, this Court reviews de novo the application of the law and
independently reviews the cumulative effect of the suppressed evidence. See
Mordenti, 894 So. 2d at 169; Way, 760 So. 2d at 913.
Green submitted an exhibit consisting of evidence he claims was suppressed
by the State, including: (1) a series of three-by-five cards with information about
certain individuals handwritten on them; (2) police reports referring to the names
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Outcome: Affirmed.

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