IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

STATE OF FLORIDA,
Plaintiff,
CASE NO: F06-24237
v. SECTION 15
JUDGE: Miguel M. de la O
TONY BROWN,
Defendant.
________________________________/

ORDER GRANTING TONY BROWN’S AMENDED MOTION

TO VACATE JUDGMENT AND SENTENCE

THIS CAUSE came before the Court on Defendant, Tony Brown’s (“Brown”),

Amended Motion to Vacate Judgment and Sentence (“Motion”) filed December 20, 2016

pursuant to Florida Rule of Criminal Procedure 3.850. The Court held an evidentiary hearing

over the course of three days: November 20 and 21, 2016, and January 4, 2018 (“Hearing”).

The evidence at trial established that someone attempted to rob Michael Morris

(“Morris”) and Nigel Whatley (“Whatley”), shooting both. Whatley died, but Morris survived.

The State’s evidence against Brown primarily consisted of Morris’s testimony, a skully cap

found across the street from the shooting which contained Brown’s DNA, and Brown’s statement

that he was outside the Player’s Club on the night of the shooting.

Brown asks this Court to vacate his conviction and sentence and grant him a new trial

because of newly discovered evidence and because his trial counsel was ineffective. Brown

introduced significant, admissible evidence at the Hearing which casts material doubt on his

guilt. This evidence would probably have resulted in his acquittal if known at the time of trial,

and will probably result in his acquittal on retrial. Therefore, this Court GRANTS the Motion,

vacates the previously entered judgment and sentence, and orders a new trial.
Page 2 of 26 Case No. F06-24237

I. BACKGROUND.

The Third DCA summarized the crime as follows:

In the early morning hours of an October day, Michael Morris

(“Morris”) and his friend, Nigel Whatley (“(Whatley)”), exited a
nightclub and walked to a parking lot where Morris intended to
show his new car to (Whatley). After arriving at the vehicle, which
was parked next to a street light, Morris and (Whatley) began
talking and were approached by the defendant. The defendant
demanded that they hand their money over to him. After a brief
argument between the three men, Morris threw his money and car
keys on to the floor, but (Whatley) told the defendant that he
would have to shoot him. The defendant then pulled out a gun.

By chance, a car drove by at that moment and the defendant briefly

lowered his weapon. (Whatley) and Morris took advantage of this
and pounced on the defendant. During the fight, (Whatley) was
shot and fell face down to the ground. Morris attempted to crawl
away, but was shot in the chest by the defendant. After being shot,
Morris observed the defendant go over to (Whatley), and although
(Whatley) was still lying face down on the ground, the defendant
shot him again. Morris attempted to escape but was shot by the
defendant in the leg. Nevertheless, Morris managed to make it to a
nearby restaurant where he was found by a police officer and was
rushed to a hospital. Morris provided a physical description of his
assailant to the police. After investigating the scene of the crime,
the police located a black skully cap approximately 11 feet from
(Whatley’s) body. The DNA found on the skully cap matched that
of the defendant.

Approximately nine months later, on July 21, 2006, Detective

Nanni met with Morris outside of his workplace and showed him a
photo array. Morris identified the defendant, but did not sign the
array. Two days later, on July 23, 2006, Morris met with Detective
Nanni at the detective’s office, again identified the defendant, and
this time, in the course of a sworn statement, signed the photo
array. In his statement, Morris specified that the defendant had
been wearing a skully cap at the time the crime was committed.
Morris qualified his identification, however, by stating that he
“was 60 percent certain” that the individual he selected from the
array “is the person who shot (him) and murdered (Whatley).” He
was not advised of the DNA match prior to making his
identification. At trial, Morris explained: “I put 60 percent because
I tend to quantify things based on my background. I am trained as a
chemist; and it shows his face but it doesn’t show someone
Page 3 of 26 Case No. F06-24237

wearing a (skully). And to be fair, and in an abundance of caution,

I said 60 percent.”
Morris also affirmed that he would have been more comfortable
identifying the photographs if the individuals pictured had been
wearing skully caps.
When the defendant was first told by Detective Nanni that his
DNA had been recovered near (Whatley’s) body, he denied being
at the crime scene at the time of the murder. Shortly thereafter he
told the detective that he had been at the club, but had only been
there to pick up a generator from his friend in the wake of a
hurricane in late October 2005. The defendant was unable to
provide the name of his friend when asked by the detective.

At trial, the defendant’s then-girlfriend testified that she was at the

club with the defendant on the date of the murder. She testified that
prior to entering the club, the two had parked outside and she
applied make-up while the defendant removed a black skully cap
and a white “do-rag” from his head in order to brush his hair.
According to her, the defendant placed the white do-rag back on
his head but put the black skully cap on his lap. She did not know
what happened to the skully cap after they exited the car.

The girlfriend further testified that she remained at the club with
the defendant until very near closing time, which happens to
coincide with the approximate time of the incident. She stated that
she and the defendant left the club in the defendant’s car, and after
driving for a few minutes received a call from her friend, “Blinky,”
who told her someone had been shot near the club. The girlfriend
further testified that based on the description she received from
Blinky, she feared one of her friends had been shot at the club and,
therefore, she returned to the scene with the defendant. Upon
arriving at the scene, she claims to have called 911 twice, but hung
up on both occasions because the 911 operator was “acting
confused.” There is no record of these alleged 911 phone calls. 1
When asked the identity of the friend she believed had been shot,
the girlfriend responded that his nickname was “Yellow.” When
questioned about Yellow’s identity, she could not provide an actual
name for this person. The girlfriend never presented her account of
the events to the police, despite the investigation and subsequent

1
With all due respect to the appellate court to which this Court answers, this is a somewhat misleading
recitation of the facts surrounding the alleged 911 call. All recordings of any 911 calls had long been
destroyed by the time Brown learned he needed to account for the events of October 1, 2005 because (1)
detectives did not obtain Brown’s name as a suspect for until July 2006, and (2) the lead detective did not
listen to the 911 calls relating to the shooting of Whatley and Morris, much less preserve them in October
2005. See Trial Tr. at 272-73. This does not mean that Brown’s girlfriend made even one 911 call that
night, of course; but it likewise is not proof that she did not call 911.
Page 4 of 26 Case No. F06-24237

arrest of the defendant. She said absolutely nothing about a

supposed generator that the defendant had claimed to be picking up
at the nightclub and, contrary to what the defendant had told the
police, placed the defendant at the club during the early morning
hours of the day of the murder.

State v. Brown, 77 So. 3d 693, 694-96 (Fla. 3d DCA 2011).

On May 3, 2010, Brown stood trial on charges of first degree murder, attempted first

degree premeditated murder, armed robbery, and attempted armed robbery. The jury found the

Defendant guilty of second degree murder as a lesser-included offense, and guilty as charged of

attempted first degree murder, armed robbery and attempted armed robbery (Trial Tr. 708-711).

Morris’s testimony was the linchpin of the State’s case. The State could not survive the

circumstantial evidence standard without Morris’s testimony because it was the only means by

which the State could rebut Brown’s reasonable hypothesis of innocence. Even more critically,

the State could only counter Brown’s alibi testimony with Morris’s testimony. It is hardly a

stretch to conclude that without Morris’s testimony, no reasonable jury could find Brown guilty

in light of his alibi and the purely circumstantial nature of the State’s case.

After the verdict, the trial court granted the Defendant’s motion for new trial, finding that

the verdict was contrary to the weight of the evidence and an improper comment on the

Defendant’s right to silence. The State appealed, arguing that the trial court erred in sua sponte

ordering that witnesses and parties submit to polygraph examinations. The Third District

reversed the order granting the Defendant’s motion for new trial. See State v. Brown, 77 So. 3d

693 (Fla. 3d DCA 2011). (R. 203). 2 Thereafter, the Defendant was sentenced to consecutive life

terms on counts 1, 2 and 3, as well as to twenty-five (25) years (consecutively) for attempted

armed robbery (count 4) (R. 322-25).

2“R.” refers to the Record on Appeal. “T.” refers to citations from the transcript of the first two days of the
Hearing. “Trial Tr.” refers to the transcript of the trial.
Page 5 of 26 Case No. F06-24237

II. THE MOTION.

The Motion, filed by Brown’s counsel on December 19, 2016, raises six claims: (1)

newly discovered evidence in the form of a new witness, Arnold Clark aka “Maniac” (“Clark”);

(2) ineffective assistance of counsel for failure to investigate and/or locate Arnold Clark; (3)

ineffective assistance of counsel for failure to investigate, locate, and/or call witness David

Lynch aka “Blinky;” 3 (4) ineffective assistance of counsel for failure to effectively cross-

examine medical examiner, Dr. Bruce Hyma; (5) ineffective assistance of counsel for failure to

present an eyewitness identification expert; and (6) the cumulative errors of counsel that

deprived Brown of his right to a fair trial.

III. STANDARD FOR POSTCONVICTION RELIEF

A. BASED ON 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 the Jones II test
if it “weakens the case against (the defendant) so as to give rise to
a reasonable doubt as to his culpability.” Jones II, 709 So. 2d at
526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996)). If
the defendant is seeking to vacate a sentence, the second prong
requires that the newly discovered evidence would probably yield
a less severe sentence. See Jones v. State, 591 So. 2d 911, 915
(Fla. 1991) (Jones I).

Hildwin v. State, 141 So. 3d 1178, 1184 (Fla. 2014) (quoting Marek v. State, 14 So. 3d 985, 990

(Fla. 2009)); accord McLin v. State, 159 So. 3d 870 (Fla. 3d DCA 2015).

3
Brown withdrew this claim.
Page 6 of 26 Case No. F06-24237

Based on the standard set forth in Jones II, this Court must consider the effect of the

newly discovered evidence, in addition to all of the admissible evidence that could be introduced

at a new trial. Swafford v. State, 125 So. 3d 760, 775–76 (Fla. 2013). “In determining the

impact of the newly discovered evidence, the court must conduct a cumulative analysis of all the

evidence so that there is a ‘total picture’ of the case and ‘all the circumstances of the case.’”

Hildwin, at 1184 (quoting Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999)).

B. BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL.

To prevail on a claim of ineffective assistance of counsel, a defendant must show both

that trial counsel’s performance was deficient and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984) (“Strickland”); Crain v. State, 78 So. 3d 1025, 1033 (Fla. 2011).

To establish the deficiency prong under Strickland, the defendant must prove that

“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, at 687. “There is a strong presumption that

trial counsel’s performance was not ineffective.” Lukehart v. State, 70 So. 3d 503, 512 (Fla.

2011). The defendant carries the burden to “overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, at

689 (quoting Michel v. Louisiana, 350 U.S. 91 (1955)).

In examining trial counsel’s performance, courts are required to

make every effort to eliminate the distorting effects of hindsight by
evaluating the performance from counsel’s perspective at the time
and indulge a strong presumption that counsel has rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Blanco v.
Wainwright, 507 So. 2d 1377, 1381 (Fla. 1987).
Page 7 of 26 Case No. F06-24237

White v. State, 729 So. 2d 909, 912 (Fla. 1999). “Further, counsel cannot be deemed ineffective

for failing to make a meritless argument.” Dennis v. State, 109 So. 3d 680, 690 (Fla. 2012),

reh’g denied (Mar. 8, 2013).

Under the prejudice prong, “Strickland places the burden on the defendant, not the State,

to show a ‘reasonable probability’ that the result would have been different.” Wong v.

Belmontes, 558 U.S. 15 (2009) (quoting Strickland, 466 U.S. at 694).

(T)he defendant must show that there is a reasonable probability

that, “absent the (deficient performance), the factfinder would have
(had) a reasonable doubt respecting guilt.” Henry v. State, 948
So.2d 609, 617 (Fla.2006) (quoting Strickland, 466 U.S. at 695,
104 S.Ct. 2052). “A reasonable probability is a ‘probability
sufficient to undermine confidence in the outcome.’” Id.

Dennis v. State, 109 So. 3d at 690.

IV. THE EVIDENCE PRESENTED AT THE HEARING.

Clark testified that “DJ Black” (n/k/a Clinton Marshall), was a regular disk jockey at the

Players Club in 2005. (T. 14). On the night of October 1, 2005, DJ Black told Clark that he

wanted to leave the DJ booth and go outside to smoke a “chopper” (a cocaine-laced cigarette).

(T. 15-16, 81). DJ Black left DJ “Lick ‘em Lizard” in the DJ booth. (T.16). After a while, the

music was messing up so Clark went to find Black. (T. 17-18, 81-83). When he was outside the

front door, Clark heard multiple shots, which was unusual right behind the club. (T. 18-19, 82).

Clark walked through the parking lot to his left toward 78th Street, past a white house. (T. 21-

24). In order to see 78th Street from where he heard gunshots, he had to walk at least five yards.

(T. 25-26). As he got to the edge of the last building, he saw DJ Black by the driver’s side of a

black Infiniti or Nissan, and another person. (T. 26-28). Clark had to walk about twenty-five

yards from the front door where he stood when he heard the shots to see the car. (T. 83-84).

Clark testified that he heard a “pow” and saw a “flash.” (T. 30-31, 84, 86). He did not see a gun
Page 8 of 26 Case No. F06-24237

being fired, or in DJ Black’s hand, just a flash coming from the area near DJ Black and the other

person, who were about three to four feet apart. (T. 30, 33, 109). Clark claimed that he saw the

other person fall down after the flash, but never saw a third male. (T. 84-85). Clark did not see a

gun, and had never seen DJ Black with a gun before that night. (T. 33, 83, 101).

Clark was stunned and asked DJ Black was he was doing. Black replied come here and

look, and Clark saw a body lying on the ground. (T. 31, 86). Clark testified that the person on

the ground was laying on his back, face-up, and if he recalled correctly, his legs were crossed.

(T. 31-32, 109). DJ Black then walked around to the passenger side of the car, and used his shirt

to open the glove compartment. (T. 33). Clark told DJ Black that someone had just been killed

and he should get back and not touch the car. DJ Black left and went through the gate and on

toward the club. (T. 33). Clark called the police and was there when they arrived. (T. 33, 86).

In 2015, Clark was contacted by the Medill Justice Project (“Medill”). (T. 52). Some

people from Medill came to see and speak to him in person, and told him that they represented

people who are wrongfully convicted. (T. 53-56, 60, 102). They talked to him about the

shooting, and told him they were investigating whether Brown may have been wrongfully

convicted. (T. 103). Clark told them that the person he saw on October 1, 2005 at the scene of

the shooting was not Brown, it was DJ Black. (T. 108, 112).

Clark subsequently signed an affidavit prepared by Brown’s trial counsel. (T. 59-60).

Thereafter, four homicide detectives came to speak to Clark on more than one occasion. (T. 61-

62). They showed him a line up and he identified DJ Black. (T. 62, 65). The detectives were

forceful and tried to convince him that they were certain about the person who did the crime, and

said if he was found to be lying he could be charged with perjury. (T. 64).
Page 9 of 26 Case No. F06-24237

Sometime thereafter, Clark spoke with friends who said DJ Black was asking why he was

telling people things about him and the murder behind the club. (T. 65, 79). When the defense

investigator, counsel, and prosecutors came to depose him, he told them he did not wish to

testify, relenting only after he was brought to court and discussed the situation with the judge.

(T. 67, 72-73). Clark repeated that he kept quiet about the matter until he was asked about it in

2015 because he did not want the backlash on the club. (T. 68-69). He then indicated that

backlash on stuff about the club did not concern him anymore. (T. 69). Clark testified that he

did not know anyone named Tony Brown until he came to recognize him as the Defendant he

saw sitting in court during hearings in this case. (T. 69-70).

V. INEFFECTIVE OF COUNSEL CLAIMS.

Brown’s ineffective assistance of counsel claims are unfounded. Although the Court will

discuss each in turn, only the first deserves extended attention because it is a two-edged sword

for Brown.

A. FAILURE TO LOCATE CLARK.

This claim is inherently at odds with Brown’s newly discovered evidence claim. To be

ineffective, Brown’s trial counsel must have known, or should have known, about Clark. Yet,

for Clark’s testimony to constitute newly discovered evidence, Clark’s testimony “must have

been unknown by the trial court, by the party, or by the counsel at the time of trial, and it must

also appear that the defendant or his counsel could not have known about the evidence by

exercising diligence.” Walker v. State, 928 So. 2d 407, 408 (Fla. 3d DCA 2006).
Page 10 of 26 Case No. F06-24237

There is certainly no dispute that Brown’s defense team was aware of Clark. Brown

admits that Clark’s name was available to Brown’s trial counsel prior to trial. There were

references to Clark in depositions. Officer Vyvyan Rodgers testified during her deposition on

August 17, 2007, that there were civilians in the area when she arrived at the crime scene and

that one of the officers attempted to talk to a gentleman who said that he was the manager at the

Player’s Club. Officer Rodgers recalled asking him for his personal information, but he was not

cooperative. (Rodgers Depo. at 7). Kimberly Hunter (“Hunter”) – arguably the defense’s star

witness and Brown’s girlfriend – testified Clark was at the scene after the shooting had occurred.

In her deposition on January 9, 2009, Hunter testified that when she arrived at the scene after

receiving a phone call from David Lynch aka “Blinky,” she saw Clark and told him to call the

police. (Hunter Depo. at 30-31). Daniel Ogletree, a photographer at the club, was deposed the

same day as Hunter. During his deposition, Mr. Ogletree testified that there was a “ninety

percent possibility” that Clark was working at the club on the night of the incident because Clark

was the main security at the Player’s Club. (Ogletree Depo. at 37).

At first glance, it would appear that all this testimony would support a claim of

ineffective assistance of counsel because trial counsel failed to exercise due diligence to locate

Clark, and would defeat Brown’s newly discovered evidence claim. As more fully discussed in

Section VI, infra, however, a witness’ reluctance to be involved in an investigation, or a witness’

refusal to comply with an investigation for fear of retribution, is a circumstance that has been

recognized as overcoming the due diligence requirement for newly discovered evidence.

Consequently, the Court finds that trial counsel could not have secured DJ Clark’s testimony at
Page 11 of 26 Case No. F06-24237

Brown’s original trial and, therefore, Brown’s claim of ineffective assistance for Counsel’s

failure to do so fails. 4

B. CROSS-EXAMINATION OF MEDICAL EXAMINER BRUCE HYMA.

Brown argues that his trial counsel was ineffective in his cross-examination of medical

examiner Dr. Bruce Hyma. Trial counsel, Steven Yermish, testified that the defense at the trial

was that the identification was erroneous. (T. 230). It was a strategic decision to make the focus

of the defense “the erroneous identification” and not inconsistencies between the testimony of

the victim and the testimony of the medical examiner, even though these were highlighted. 5

Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have

been considered and rejected, and counsel’s decision was reasonable under the norms of

professional conduct. See Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1999); State v.

Bolender, 503 So. 2d 1247, 1250 (Fla. 1987). At the time of trial in May 2010, Mr. Yermish had

been an attorney for over 25 years and had in the neighborhood of 100 trials prior to Brown’s.

(T. 216). Mr. Yermish was a competent death penalty homicide defense attorney, had the

experience to handle a case such as this, and did an effective job using all resources available to

him based on the strategy outlined by him as lead counsel. He did an effective cross-

examination of Dr. Hyma under the circumstances. Therefore, Brown meets neither the

deficiency nor prejudice prong under Strickland as to this claim, and it is denied.

4
As should be obvious, however, if on appeal a higher court concludes that trial counsel failed to act with
due diligence and thus the newly discovered evidence is untimely, then this Court would grant the claim
for ineffective assistance of counsel.
5
During cross examination, Mr. Yermish brought out a fact which had previously been made clear: how
many bullet wounds were discovered in the victim to which Dr. Hyma answered, “just one.” (Trial Tr.
320). This question and answer clearly showed that Dr. Hyma’s testimony based on the physical
evidence was different from the testimony given by Morris, who said he saw the Defendant shoot the
victim twice.
Page 12 of 26 Case No. F06-24237

C. FAILURE TO CALL EYEWITNESS IDENTIFICATION EXPERT.

The Defendant’s final, specific claim is that his trial counsel was ineffective for his

failure to call an eyewitness identification expert, Dr. Nadja Schreiber Compo, to explain to the

jury why Morris’ eye-witness identification of Brown was erroneous at his 2010 trial.

Brown fails to meet either of Strickland’s prongs. Mr. Yermish cross-examined the

State’s witnesses on all of the “factors” discussed by Dr. Schreiber Compo. He substantially

impeached Morris’ identification and memory on several grounds, including: his changing

description of the perpetrator, his 60% certainty, his stress and injuries, the fact that a firearm

was used. Mr. Yermish also brought out the circumstances of the photo array being shown at a

mall food court, the passage of time before the identification, and the “contamination” of Morris’

memory when Det. Nanni advised him of the DNA match with the subject identified. These

issues were all covered extensively in the defense closing argument as well. (Trial Tr. 617-22).

Therefore, the Defendant has failed to meet his burden to prove that Mr. Yermish was deficient

in failing to call Dr. Schreiber Compo as an eyewitness identification at trial, and failed to prove

that a reasonable probability that the outcome of the trial would have been different had he done

so. See McLean v. State, 147 So. 3d 504, 511 (Fla. 2014) (“McLean has also failed to establish

prejudice. At trial, the defense focused on issues surrounding Lewis’s identification of McLean

as the shooter, cross-examining Lewis about the identification and arguing during closing

arguments that Lewis’s identification was questionable. Since the jury was presented with the

argument that Lewis’s identification of McLean was unreliable, there was no prejudice by trial

counsel’s failure to call an expert in eyewitness identification.”). This claim is denied.

Page 13 of 26 Case No. F06-24237

D. CUMULATIVE ERRORS OF COUNSEL.

Brown argues that even if this Court is not persuaded by any of his individual claims, it

should still consider their cumulative effect in determining whether he was deprived of his

constitutional right to a fair trial. However,

“[i]t is well established that ‘where individual claims of error

alleged are either procedurally barred or without merit, the claim
of cumulative error must fail.’” Mendoza v. State, 87 So. 3d 644,
657 (Fla. 2011) (quoting Griffin v. State, 866 So. 2d 1, 22 (Fla.
2003)). “In addition, individual claims that fail to meet the
Strickland standard for ineffective assistance of counsel are also
insufficient to establish cumulative error.” Bright, 200 So. 3d at
742. Moreover, claims of error that have previously been
presented to this Court on direct appeal or in postconviction and
subsequently rejected cannot form the basis for a valid claim of
cumulative error. See Rogers v. State, 957 So. 2d 538, 555–56
(Fla. 2007) (citing Morris v. State, 931 So. 2d 821, 837 n.14 (Fla.
2006); Melendez v. State, 718 So. 2d 746, 749 (Fla. 1998)).

State v. Morrison, 236 So. 3d 204, 226 (Fla. 2017). Brown’s claims of ineffective assistance of

counsel have been denied (or withdrawn), and this claim is likewise denied.

VI. TIMELINESS OF THE NEWLY DISCOVERED EVIDENCE.

The critical evidence presented at the Hearing, Clark’s testimony, qualifies as “newly

discovered.” Clark testified that he first spoke with Defense counsel in 2015, about five years

after Brown’s trial. Before that conversation, Brown did not know that anyone had been charged

with the shooting outside the Player’s Club in October 2005. In fact, Clark never met Brown

until they both were present in the courtroom for the Hearing.

At the Hearing, Clark testified that he did not tell the police what he had witnessed when

they arrived at the scene because he did not want to be involved. (T. 37). Being a manager at

the Player’s Club at the time of the shooting (T. 9), Clark explained that “it was a time where

everything was going good” and that coming forward would have “killed” his business. (T. 37,
Page 14 of 26 Case No. F06-24237

97). He made it clear that he did not want the backlash of coming forward. (T. 37, 69). At the

time, Clark was operating under a “don’t snitch, don’t tell” policy. (T. 37). Not only would

coming forward have affected the club and his business, but it also would have affected his well-

being. At the time of the murder, Clark was focused on making money. (T. 97).

Clark did not come forward with his testimony until 2015 – approximately ten years after

the shooting – when he was approached by the Medill Innocence Project. (T. 68). When asked

by both the defense and the State why he decided to come forward when he did, Clark explained

that if “this came back around” to him ten years later, “it had to be for a reason” and it must have

“meant for (him) to say something.” (T. 68, 100). He testified that people grow up and “things

that mattered then don’t matter now.” (T. 69). The backlash was of no particular concern to him

anymore. (T. 69).

Because Clark had no intention of testifying about DJ Black’s involvement in the

shooting of Whatley and Morris at the time of trial, his testimony qualifies as newly discovered.

See Nordelo v. State, 93 So. 3d 178, 187 (Fla. 2012) (testimony of co-defendant who refused to

testify on behalf of defendant prior to trial because he was concerned State would take away his

plea offer can be considered “newly discovered” under Rule 3.850). See also Kendrick v. State,

708 So. 2d 1011, 1012 (Fla. 4th DCA 1998) (recognizing that witness’ unwillingness to give

testimony previously qualified the evidence as newly discovered).

In addition, the Third District Court of Appeal has – correctly in this Court’s opinion –

held that the “due diligence requirement is not an inflexible one.” Jackson v. State, 16 So. 2d 10,

10 (Fla. 3d DCA 1982) (citing Gaither v. Anderson, 135 So. 840, 139 So. 587 (Fla. 1932)); see

Ragen v. Paramount Hudson, Inc., 434 So. 2d 907, 908 (Fla. 3d DCA 1983) (“the due diligence

requirement is not a legal absolute”). Even where due diligence has not been firmly established,
Page 15 of 26 Case No. F06-24237

a motion for new trial based on newly discovered evidence should be granted in the face of a

“correctable injustice.” See Cluett v. Dept. of Professional Regulation, 530 So. 2d 351, 355 (Fla.

1st DCA 1988) (“even where the due diligence requirement has not been fulfilled, if an appellate

court finds that a correctable injustice has been done, that court should not hesitate to order a

new trial or hearing based on all the available evidence”). Because this Court concludes that

Clark’s testimony would probably result in Brown’s acquittal on retrial, it is justified in relaxing

the timeliness requirement.

Appellant’s motion for a new trial alleges newly discovered

evidence. The trial judge correctly ruled that the evidence was not
such that it could not have been produced at the trial in the exercise
of due diligence. Nevertheless, the proofs attached to the motion
for new trial are such that it almost conclusively appears that the . .
. possession of which the appellant was convicted . . . is not
unlawful under the statute. We therefore conclude that, in the
interest of justice, a new trial should be granted upon the basis that
it is better to bend a rule of procedure than to use the rule to
convict an innocent person. ... (I)n the instant case the evidence
upon which the defendant sought a new trial is an absolute defense
to a crime which requires no intent or overt act but is based solely
upon possession. To allow a conviction such as this to stand, when
there is a great probability that the accused is innocent, would be a
gross miscarriage of justice.

Hanson v. State, 187 So. 2d 54, 55 (Fla. 3d DCA 1966).

VII. IMPACT OF NEWLY DISCOVERED EVIDENCE.

Brown presented credible, admissible evidence demonstrating that the crimes of which he

was convicted may very well have been committed by another. The standard this Court applies

in ruling on the Motion is not whether Brown can establish that DJ Black is responsible for

shooting Morris and murdering Whatley. Rather, this Court is tasked with considering all of the

evidence presented at the Hearing and at trial, and determining whether, if Brown were to
Page 16 of 26 Case No. F06-24237

receive a new trial, it is more likely than not that the jury would have a reasonable doubt about

his guilt and acquit him of all charges in this case.

A. THIS CASE IS REPLETE WITH DOUBT.

Obviously, Clark’s testimony is exculpatory in nature. It identifies DJ Black as being

with the deceased victim within moments of him being shot and it also excludes Brown from

being at the scene at the time. However, this Court does not weigh Clark’s testimony in a

vacuum, it weighs it in the context of a case that was, and is, replete with reasonable doubt even

before Clark came forward.

1. THE DEFENSE CASE AT TRIAL.

At the original trial, Brown attempted to undermine Morris’ identification. Morris

described the shooter as having facial hair on his chin. Brown is incapable of growing facial

hair, and his defense team conducted an experiment with the cooperation of the Corrections

Department to corroborate this fact.

Brown called his girlfriend, Hunter, as an alibi witness, and she presented a plausible

explanation for the presence of Brown’s DNA on evidence found on a skully cap found eleven

feet (on the other side of street) from where the victim’s body and items belonging to the victim

were located. See Motion at 10-12. Moreover, the DNA of someone other than Mr. Brown was

found on three personal items belonging to the victims, including the earphone, silver pendant

and a corduroy cap found at the scene. (T. 244).

Although the jury did not find the defense arguments persuasive, and the Third District

affirmed Brown’s conviction despite the defense arguments, this Court is compelled to ponder
Page 17 of 26 Case No. F06-24237

what a future jury will do if Brown’s defense is allowed to present the same arguments in

conjunction with Clark’s testimony. The answer appears, at least to this Court, obvious.

2. MORRIS’ TESTIMONY LEAVES PLENTY OF ROOM FOR

DOUBT.

First, the physical evidence did not completely coincide with Morris’ testimony at trial.

For example, Morris testified that this was a robbery. Yet, nothing was stolen. The brand-new

Infiniti remained on the scene, despite the fact that Mr. Morris threw the car keys on the ground.

(Trial Tr. 171). The deceased victim was still wearing a silver chain and silver watch when his

body was found. (Trial Tr. 85; Miami-Dade Police Department Property Receipts). The gunshot

evidence did not comport with Morris’ testimony. Morris testified that the deceased victim was

shot during the close-encounter struggle with the perpetrator, but there was no stippling on the

victim’s body. (Trial Tr. 300). Morris further testified that the perpetrator subsequently

straddled the deceased victim and continued shooting at him (Trial Tr. 176, 214), but there was

only one gunshot to the deceased victim’s head.

Second, and far more troubling, are the circumstances surrounding Morris’s identification

of Brown and his testimony that the perpetrator wore a skully cap. At the Hearing, Brown

presented the testimony of Dr. Nadja Schreiber Compo, an associate professor and co-director of

the legal psychology program at Florida International University. (T2. 6). 6 Dr. Compo

specializes in the research of witness memory and investigative interviewing of vulnerable

witnesses and witnesses in general. (T2. 8). Dr. Compo testified that the field of witness

memory is recognized as a scientific area in psychology since the early seventies when it was

officially recognized by the American Psychology and Law Society. (T2. 9-10). Legal studies

6
“T2” refers to the transcript of the third day of the Hearing conducted on January 4, 2018.
Page 18 of 26 Case No. F06-24237

involved in this field – which have been read and reviewed by Dr. Compo – include a technical

working group of leading researchers in the field of eyewitness memory compiled by Attorney

General Janet Reno in 1999 to develop guidelines addressing wrongful eyewitness identifications

and eyewitness memory, as well as guidelines instituted by International Association of Chiefs of

Police and the National Institute of Justice. (T2. 10).

Dr. Compo has testified as an expert in the field of witness memory and best practices for

witness identification in Florida courts (T2. 16). She does not opine as to whether an

identification is “correct.” As a scholar in witness memory (T2. 85, 96), Dr. Compo looked at

factors that are potentially detrimental and beneficial to eyewitness memory based on research

and applied those factors to Brown’s case. (T2. 11-14, 19).

The applicable factors are divided into two categories of variables that can influence

eyewitness memory: (1) estimator variables (those which are present at the time of the crime);

and (2) system variables (those which are under the control of the criminal justice system). (T2.

20-21). Dr. Compo testified that the system variables were more at issue in this case. 7

The first issue was the police interviews of Morris. None of the interviews (neither the

ones conducted at the hospital nor the police station) were recorded. Dr. Compo testified that

recording an interview is important to determine the quality of the witness’ statements based

upon the techniques used to elicit the information. (T2. 26). Police first contact made with

Morris at the hospital on October 4, 2005, as memorialized in Detective Nanni’s Supplemental

7
In terms of the estimator variables, Dr. Compo testified that the variable that was beneficial to
eyewitness memory was the fact that the area was well lit. (T2. 21-22). The variable that had a
detrimental effect was the fact that this was a highly stressful event in which the eyewitness was shot. Dr.
Compo explained that high levels of stress are detrimental to an eyewitness’ memory of a face or event.
The higher the stress level of the event, the more it yields itself to a decrease in witness accuracy. This
goes against lay persons’ common conception that a highly traumatic or stressful event is one which is
burned into memory. Dr. Compo testified that the negative effect of stress on eyewitness memory is
derived from a large body of research that has investigated the effects of stress on witness memory. (T2.
23-24).
Page 19 of 26 Case No. F06-24237

Report dated 3/26/2006. (T2. 28-29). Dr. Compo noted that Mr. Morris exhibited a high level of

detail of the event, but not of the perpetrator. Mr. Morris could only remember two details about

the perpetrator – the height and complexion. There was no mention of a skully cap. (T2. 30).

The first formal interview occurred nine months later (on July 21, 2006) at a food court in

a mall. (T2. 34). This time, the description of the perpetrator became significantly more

detailed. (T2. 32-33). Dr. Compo opined that this increase in detail wholly contradicts years of

research in the science of witness memory and interviews. She explained the obvious – that

memory becomes a lot less detailed with time if the information is not being probed consistently.

(T2. 33, 40-41). Dr. Compo was especially concerned that Mr. Morris was shown a photographic

lineup at this time. (T2. 33). Detective Nanni’s testified at trial that this lineup was shown to Mr.

Morris before Mr. Morris gave his more detailed account. (T2. 33). 8 Dr. Compo opined that

such a sequence of events could have influenced Mr. Morris’ subsequent description of the

perpetrator since he had just seen the picture of the perpetrator. (T2. 35). It is common sense

that a witness would make a more detailed description of a perpetrator after seeing a picture.

Such a procedure casts doubts on Morris more detailed description.

The second issue concerning the detrimental system variables was the administration of

the lineup. Dr. Compo testified to the guidelines issued by the National Institute of Justice in

8
Morris did not describe the sequence of events during his trial testimony. He was asked on re-direct
examination whether he gave a description, whether he was shown a photo array, and whether he made an
identification, and he responded yes to all three questions. (Trial Tr. 216). Detective Nanni, on the other
hand, testified on direct examination as follows:

No, because after he told me (that he was 60% certain), I started to ask
him more questions about what occurred, because at the first interview
with him he was very short and brief due to his health conditions. Now
he was in a lot better health. . . . So at that particular point, I took it upon
myself to get more details about what occurred. I started to document
those details in my report.

(Trial Tr. 261-62). This is also evidenced by his supplemental report dated 7/30/2006.
Page 20 of 26 Case No. F06-24237

1999 and the International Association of Chiefs of Police in 2007 that, based on decades of

research, recommend safeguards against wrongful identifications. (T2. 35-36). One guideline is

that the lineup should be “double blind,” i.e., that the person who administers the lineup should

not know the identity of the suspect. Another is that the lineup be administered with a three-part

instruction. (T2. 36). Empirical data shows that administering these instructions decreases

incorrect identifications while not having a negative effect on correct identifications. The first

instruction is to inform the witness that the perpetrator may or may not be in the lineup. The

second is to tell the witness that they do not have to identify anyone. The third is to inform the

witness that the investigation will continue even if an identification is not made. (T2. 36-37).

Investigators did not comply with any of these guidelines. Detective Nanni knew the

identity of the suspect thereby disregarding the guideline of a double-blind lineup. The three-

part instructions were not administered. The instruction that was administered by Detective

Nanni – the “appearance change” instruction – has been shown by studies to not assist in making

a positive identification. (T2. 37-38). Dr. Compo also testified with regard to several other

guidelines that were not complied with concerning the lineup in this case. The lineup was not

video recorded. There was no lineup admonition form signed by the witness. The lineup was

also not conducted in an undistracted environment such as the police station. (T2. 39). A food

court in a mall is hardly the place to obtain the single most important piece of evidence in a

murder prosecution – the identification of the defendant in a lineup.

Finally, the number of times that a witness is shown a lineup or picture of a suspect

should be limited, which was not the case here. This is also known as the “commitment effect.”

(T2. 45). Research has shown that repeated exposure to the picture of a suspect can interfere

with the memory of the original suspect. Dr. Compo explained that it becomes more and more
Page 21 of 26 Case No. F06-24237

impossible to determine whether the witness remembers a suspect because the witness was

presented with a picture as part of the lineup or because the witness has an accurate memory of

the suspect during the original event. Morris was shown the photographic lineup at least four

times. (T2. 46).

The third system variable at issue was the delay between the event and the identification.

Dr. Compo testified that the longer between the event and the identification or gathering of

information, the more likely it is that a witness’ memory has decreased in quantity and more

likely to be influenced by outside factors. (T2. 38).

The fourth variable at issue was Morris’ only 60% certainty in his identification. Dr.

Compo testified there is a large body of research on the relationship between eyewitness

confidence and accuracy which shows that the less confident a witness, is in the identification,

the less likely the witness is to be accurate. (T2. 41).

The final system variable that Dr. Compo opined was detrimental to this case is what is

known as post-identification feedback. This variable has received considerable research

attention and involves providing the witness with feedback regarding the accuracy of their

identification. Post-identification feedback has been scientifically shown to inflate witness

confidence in a prior identification. (T2. 42). The more troubling problem with this variable is

its effect on how a witness retroactively assesses his/her memory of the original event. (T2. 43).

It has been shown to change some of the subjective memory measure of the original event. (T2.

44). Here, the post-identification feedback at issue was the fact that Detective Nanni advised

Mr. Morris that a black skully cap and DNA had been recovered from the scene. (Trial Tr. 204).
Page 22 of 26 Case No. F06-24237

In short, this Court evaluates the testimony of Clark, in part, by comparing it to the

strength of Morris’s identification. Given the weakness in Morris’s identification of Brown as

the perpetrator, if Clark has any credibility as a witness, this Court must grant the Motion.

B. CREDIBILITY OF ARNOLD CLARK.

The Court finds Clark and his testimony credible. First, Clark’s testimony about DJ

Black’s involvement was clear, direct, and both internally and externally consistent. His

presence at the Club at the night of the shootings was corroborated by multiple witnesses.9 See

Section V.A, supra.

Second, there is no apparent benefit to Clark in testifying about DJ Black’s involvement

in the homicide of Whatley and shooting of Morris. Clark was incarcerated at the time of his

testimony at the Hearing and is not benefitting in any way from providing his testimony. (T. 70).

To the contrary, his testimony has caused him concern about DJ Black. (T. 66-67). The State

raised no significant claim that would undermine Clark’s credibility.10

9
Other facts also establish Clark was present at the scene of the shootings: (1) Clark knew the deceased
victim was wearing a pink wrist band from Club Boi, corroborated by Detective Chavez’s Narrative dated
10/01/2005; (2) Clark knew that the deceased victim was wearing khaki pants, corroborated by the
Detective Chavez’s Death Scene Investigation Report dated 10/01/2005; (3) Clark knew that the City of
Miami police department arrived first followed by the Metro-Dade police department, corroborated by
Officer Rodgers testimony at trial (Trial Tr. 5/4/2010 at 17); and (4) Clark told an officer at the scene that
he was a manager at the club, corroborated by responding Officer Rodgers’ deposition (Rodgers Depo. at
7).
10
The State does attempt to argue that Clark had a motive to testify falsely because of an alleged dispute
between himself and DJ Black over an incident between them concerning a dancer named Brown Sugar.
The State’s hypothesis is unpersuasive. The incident occurred in 2006 (T. 40-41), almost ten years before
Clark came forward with his testimony about DJ Black’s involvement in the shootings. Clark was
arrested after the dispute with DJ Black in 2006, but the case was no actioned less than a month later. See
Mot. For Jud. Notice filed 11/17/2017. Moreover, Clark did not lose his job following the incident – DJ
Black did. (T. 187). It is implausible to believe that Clark would hold such a deepened grudge over a
miniscule incident that occurred years ago so as to fabricate a story implicating DJ Black in a homicide
case. DJ Black, on the other hand, had every motive to ensure that his testimony at the evidentiary
hearing relieved him of any possibility of his involvement in the homicide, and as discussed infra, gave
contradictory or hard-to-believe testimony on a number of occasions in the Hearing.
Page 23 of 26 Case No. F06-24237

Third, Clark’s identification of DJ Black is far stronger than Morris’ identification of

BrownMorris, the surviving victim and sole eyewitness (until Clark came forward), had never

met Brown, had only a 60% certainty of his identification of Brown, and gave differing

descriptions of the assailant over time. By comparison, Clark knew DJ Black from working with

him at the Club, was in a position to observe the immediate aftermath of the crime, and even

interacted with DJ Black at the very spot of the murder.

Fourth, unlike DJ Black, Clark was honest about the limits to his recollection twelve

years later. Contrasting Clark’s testimony to DJ Black’s at the Hearing only heightens Clark’s

credibility. Clark was honest when he was unsure about a particular detail. For example, he did

not remember whether the victim’s car was an Infiniti or Hyundai. (T. 28). He did not

remember the day of the week the shooting occurred. (T. 88-89). He readily acknowledged that

he may have forgotten certain details. (T. 96-97). There were also some details in Clark’s

testimony that were contradicted by other sources. Clark testified that when he walked over to

the car after hearing the “pow” and seeing the flash, he saw the deceased victim laying on his

back, and if he “recalled(ed) correctly,” the body’s legs were crossed. (T. 31). Officer Rodger’s

Offense Incident Report (dated 10/01/2005) indicates that that the victim was lying face down

upon arrival. Rodgers was one of the first Miami-Dade police officers to respond to the scene

(Rodgers’ Depo. at 5-6).11

DJ Black, on the other hand, changed his testimony between the time of his deposition in

connection with this Motion and the date of the Hearing a mere five days later. Particularly

11
In defense of Clark’s memory, the Court notes that he remained on the scene until the police arrived.
Based on Officer Chavez’s Death Scene Investigation Report (dated 10/01/2005) and the Medical
Examiner’s Report (dated 10/01/2005), Fire Rescue positioned the body to face upwards to tend to the
victim and the body remained in that position throughout the investigation. (Trial Tr. 88). This could
explain why Clark recalls the body lying in a prone position, and may explain why he remembers
Whatley’s legs being crossed.
Page 24 of 26 Case No. F06-24237

concerning to this Court is his insistence at the Hearing that he was not working at the club on

the night of the shooting. DJ Black acknowledged during his deposition he could not remember

if he was working that night. (T.162-63). Yet, at the Hearing, he confidently testified that he

was not working on the night of the shooting. (T. 163-64). DJ Black testified that he “just sat

down and thought about everything,” “everything started to come to (him)” and he was not

working there that night. (T. 164). He repeatedly denied working at the club on the night of the

shooting during questioning at the Hearing, despite the fact he did not know the exact date of the

shooting. (T. 166, 190). This Court has no difficulty concluding that Clark is far more credible

than DJ Black.

CONCLUSION

Mistaken identity is the chief cause of wrongful convictions. See

Edward Connors et al., Convicted by Juries, Exonerated by
Science: Case Studies in the Use Of DNA Evidence to Establish
Innocence After Trial (1996) (finding that twenty-four out of
twenty-eight cases of postconviction exoneration based on DNA
testing were due in great part to mistaken eyewitness
identifications); Connie Mayer, Due Process Challenges To
Eyewitness Identification Based On Pretrial Photographic Arrays,
13 Pace L. Rev. 815, 819 (1994) (“(S)tudies have shown that
approximately fifty percent of those wrongly convicted were
convicted based on eyewitness identification evidence.”).

Simmons v. State, 934 So. 2d 1100, 1126 (Fla. 2006) (Pariente, Anstead, and Cantero, J.

concurring). Whether due to the inherent fallibility of our mind to accurately recollect, or to

intentional deception, courts should exhibit a healthy skepticism of eyewitness testimony where

the witness does not know the assailant, had only a short time to observe the assailant during a

high stress situation, gives a vague initial description of the assailant, and there is a gap of time

between the event and an identification.

Page 25 of 26 Case No. F06-24237

The investigation of the murder of Whatley and shooting of Morris left much to be

desired. On October 5, 2005, officers conducted a limited interview of Morris while he was

receiving emergency medical treatment and was laboring to even breathe. While understandable

that this initial interview would be limited given the exigent medical circumstances, it is

inexcusable that the detectives did not conduct a detailed interview of Morris after he received

medical treatment and was stabilized. 12 Instead, officers only conducted a thorough interview of

Morris nine months later after they found Brown’s DNA on a skully cap; a skully cap that had no

known connection to the shooting because Morris had not mentioned the shooter wore one. Had

Morris in October 2005 told officers that the perpetrator wore a skully cap, perhaps this Court

would rule differently.

This Court has no idea if Brown murdered Whatley and shot Morris. Perhaps he did,

perhaps he did not. This Court does not need to make this final determination, however. “If

reasonable doubt exists as to the defendant’s culpability, a jury must resolve this factual matter—

not this Court.” Hildwin, 141 So. 3d at 1185. This Court need only decide if the newly

discovered testimony of Clark “weakens the case against (Brown) so as to give rise to a

reasonable doubt as to his culpability.” Id., at 1184. Given the weakness of the original case

against Brown, it would not take much to weaken it so as to warrant granting him a new trial.

Clark’s testimony, in conjunction with the evidence adduced at the original trial, makes it

obvious that Clarks’ testimony would “substantially undermine confidence in the outcome of the

prior proceedings,” Stano v. State, 708 So. 2d 271, 275 (Fla. 1998), and “weaken the case against

(the defendant) so as to give rise to a reasonable doubt as to his culpability,” Tompkins v. State,

994 So. 2d 1072, 1086 (Fla. 2008). This Court finds that a new trial will probably, maybe almost

certainly, result in Brown’s acquittal.

12
Likewise, the detectives did not preserve, or even listen to, 911 calls about the shooting,
Page 26 of 26 Case No. F06-24237

For the reasons set forth above, Brown’s Amended Motion to Vacate Judgment and

Sentence is granted, his conviction and sentence are vacated, and a new trial is ordered.

DONE and ORDERED in Miami-Dade County, Florida this 7th day of September,
2018.

________________________
Miguel M. de la O
Circuit Judge