Crosley Alexander Green v. State of Florida

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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Affirmed.