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Payne v. State

Florida Court of Appeal, Fifth District

November 10, 2011

Trevor PAYNE, Appellant,
STATE of Florida, Appellee.

Page 551

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.


Appellant was convicted of first-degree murder and shooting into an occupied vehicle arising from a drive-by shooting. The trial court initially denied Appellant's motion for postconviction relief without a hearing, but we reversed and remanded for an evidentiary hearing on several claims. After the evidentiary hearing, during which the trial court permitted an amendment to include an additional claim of newly discovered evidence, the trial court again denied relief. We reverse.

Appellant was convicted of murdering LaShay Copeland (" the victim" ) in a drive-by shooting at 3:10 a.m. on January 3, 2004. An altercation an hour earlier between members of the Biggs and the Patterson families motivated the shooting. The altercation involved Antonio Biggs (" Antonio" ), his brother, Antwan Biggs (" Antwan" ), and their uncle, Isaac Hughey, on one side and Reggie Patterson (" Reggie" ) and his cousins Allen Patterson (" Allen" ) and Keith Holloway (" Holloway" ), on the other side. During the melee, the windshield on Reggie's Crown Victoria was cracked, and Reggie and Allen threatened to kill members of the Biggs family. Appellant was indisputably neither involved in nor present during the altercation.

After the altercation, Antonio and Antwan drove home. They called their mother, who was out with a friend. She instructed them to send their younger brother, Trevon, to pick her and her friend up, and then she called the police department to report the incident. Trevon and his girlfriend, the victim, went to pick up his mother and her friend in the same truck that his brothers had been driving earlier. As the four neared the Biggs residence, they saw Reggie's Crown Victoria parked with its lights off near an intersection. When they turned at the intersection, one or more occupants of the Crown Victoria shot into the Biggs vehicle, striking the mother and the victim. The victim later died from a bullet wound. The weapons used in the murder were never found.

Although Appellant had no connection to the earlier confrontation, and had no apparent motive for the crime, he was connected to the shooting primarily through the testimony of Trevon. At trial, Trevon identified Appellant (who is apparently Trevon's cousin) as the person who was shooting from the right front seat of the Crown Victoria. Trevon admitted, though, that he had given contradictory statements to police and in his deposition. In those

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prior statements, Trevon acknowledged that he " couldn't see the face" or the clothing of the front passenger.[1] At trial, he explained the apparent discrepancy as follows: " I couldn't see the whole face, but I seen the part of the bumps. That is how I know it was him." The " bumps" he referred to are the pock marks on Appellant's face. Trevon acknowledged that he never said anything about seeing these " bumps" to the police or to defense attorneys during his deposition. His explanation for this omission was that he " wasn't functioning right ... [and] wasn't thinking right at the time...." [2]

Other evidence at Appellant's trial was similarly questionable. State witness Barry Trent, a former deputy sheriff, testified that he happened to be talking to Appellant in a holding cell when Appellant spontaneously said that he had been in a vehicle involved in a shooting. Trent denied that he had questioned Appellant and denied any prior knowledge of the shooting incident. On cross-examination, however, the defense established that Trent and the victim's father were friends and telephone records proved that the two had exchanged numerous phone calls on the day of the murder. The trial court denied an attempt by the defense to call Trent's former supervisor to offer evidence of bias.[3]

In his defense, Appellant called his girlfriend, Reggie, and Holloway to testify. The girlfriend testified that she and Appellant were together from 10:00 p.m. until 5:30 a.m. on the day of the shooting. Reggie testified that he, Holloway, and Allen were the only ones in the Crown Victoria when the victim was shot and that it was Holloway who did the shooting. He said that Appellant was not in the car that night. Reggie admitted on cross-examination, however, that when he was initially interviewed by the police, he told them that Appellant was involved in the shooting. Holloway asserted his privilege against self-incrimination. He did interject, however, that " me and [Appellant] never seen each other."

After this Court affirmed his conviction,[4] Appellant filed a motion for postconviction

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relief, asserting that his trial counsel had been ineffective. Among other things, Appellant alleged that his trial counsel had been ineffective for failing to call Matthew Thomas (Holloway's jail cellmate) and Ashley Barks (Allen's girlfriend). Appellant also requested relief based on newly available testimony from Holloway, who by this time had waived his privilege against self-incrimination following his conviction and appeal. The trial court summarily denied relief after finding that Thomas' and Holloway's testimony would be cumulative ...

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