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Smith v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Orlando Division

August 30, 2017

BENJAMIN E. SMITH, Petitioner,



         Petitioner, Benjamin E. Smith ("Smith"), initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondents filed a Response to the Petition in accordance with this Court's instructions. (Doc. 13). Smith thereafter filed a Reply to the State's Response (Doc. 16), and then an Amended Reply to the State's Response. (Doc 18). For the reasons set forth below, the petition is denied.

         I. Procedural History

         The procedural history is lengthy and spans nearly twenty years. In August 1998, a grand jury returned an indictment charging Smith with first degree murder, attempted first degree murder, and attempted burglary of a vehicle. (Doc. 14-1 at 65-66). In May 2000 a jury found Smith guilty as charged (Doc. 14-2 at 80-84), and the trial judge sentenced him to life for first degree murder, fifteen years for attempted first degree murder, and three years for attempted burglary. (Doc. 14-2 at 96-98). Smith appealed. (Doc. 14-6 at 2). The Florida Fifth District Court of Appeal (the "Fifth DCA") affirmed per curiam in May 2001. (Doc. 14-6 at 85).

         Smith filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in April 2003. (Doc. 14-6 at 90). The trial court denied the motion in September 2004. (Doc. 14-7 at 96). Smith appealed (Doc. 14-8 at 2), and the Fifth DCA affirmed per curiam in February 2005. (Doc. 14-8 at 62).

         Smith filed a second motion for post-conviction relief in March 2006. (Doc. 14-8 at 67, 77). This motion challenged his conviction on the ground of newly-discovered evidence. Smith argued that one of the State's witnesses (Mazie Pauldo) recanted her earlier identification of him as the shooter and that, without this identification, the State could not prove its case against him. The trial court denied this motion in March 2008. (Doc. 14-9 at 53). Smith appealed (Doc. 14-9 at 58), and the Fifth DCA reversed and remanded for an evidentiary hearing. (Doc. 14-9 at 99).

         The trial court conducted an evidentiary hearing and, at the conclusion, granted Smith's motion and ordered a new trial. (Doc. 14-10 at 335, 338). The State appealed (Doc. 14-10 at 341), and the Fifth DCA reversed and remanded in January 2011, instructing the trial court to determine whether there was sufficient evidence to find police or prosecutorial misconduct. (Doc. 14-11 at 2).

         After an evidentiary hearing in March 2011, the trial court determined that there was insufficient evidence to support findings of misconduct. (Doc. 14-11 at 32). Smith appealed (Doc. 14-11 at 35), and the Fifth DCA affirmed per curiam in March 2013. (Doc. 14-11 at 89). Smith filed a motion for rehearing (Doc. 14-11 at 91), which the Fifth DCA denied in April 2013. (Doc. 14-11 at 97).

         Smith then sought a writ of mandamus from the Florida Supreme Court. (Doc. 14-11 at 149). That Court denied the writ in December 2013. (Doc. 14-11 at 173). Smith next sought a similar writ from the Fifth DCA. (Doc. 14-11 at 175). The Fifth DCA denied the writ in September 2014. (Doc. 14-11 at 188).

         Smith now seeks habeas relief in this Court, claiming actual innocence and a violation of his constitutional rights based on police and prosecutorial misconduct in connection with the investigation that led to his arrest and the prosecution that followed. (Doc. 1).

         II. Background

         In 1996, a group of family members and friends attended an event at the Citrus Bowl in Orlando. (Doc. 14-3 at 215). As the group returned to the parking lot Terry Manley saw a Black male acting suspiciously in the area where the group had parked. (Doc. 14-3 at 217). Manley approached and saw someone inside one of the vehicles. (Doc. 14-3 at 220). Manley startled the individual, causing him to flee, but not before the individual brandished a gun. (Doc. 14-3 at 221-22). Manley, along with three other members of the group (Ellis Tapley, Kenneth Dozier and Lee Keith) began to chase the suspect (Doc. 14-3 at 222-23). During the chase, the suspect shot Tapley and Dozier (Doc. 14-3 at 230); Tapley died at the scene. (Doc. 14-3 at 231). Mazie Pauldo witnessed Tapley's shooting from her car, which was parked on an adjacent street. (Doc. 14-4 at 56-59). The shooter ultimately eluded capture by his pursuers.

         Law enforcement officers investigating the shooting showed Manley, Pauldo and Keith photo arrays of people in an effort to identify the suspect. Manley and Pauldo identified Smith. (Doc. 14-3 at 232-33 & Doc. 14-4 at 161). Keith could not make a positive identification of the shooter, identifying more than one as possibly being the shooter (including Smith). (Doc. 14-3 at 337, 369-70; Doc. 14-4 at 45-46). Manley, Pauldo, Keith and Tommy Whitmer (the deceased victim's younger brother) later participated in a live lineup that included Smith. Manley also could not make an identification. (Doc. 14-3 at 233-34). But Pauldo and Whitmer identified Smith as the shooter. (Doc. 14-4 at 64-65 & Doc. 14-3 at 381-82). Keith identified Smith too but conceded he was only 98% sure. (Doc. 14-3 at 338-39).

         A. Trial

         (1) State's Case-in-Chief

         The case proceeded to trial and the prosecution emphasized the witnesses' earlier identifications of Smith. The bulk of the evidence in the State's case-in-chief was testimony about the witnesses' respective identifications of Smith in photographs and at the live lineup. This testimony included the following:

         a. Terry Manley.

         Manley testified that law enforcement showed him photographs after the incident and that he recognized Smith. (Doc. 14-3 at 232-33). But he acknowledged he could not identify the shooter at the live lineup. (Doc. 14-3 at 233-34). Defense counsel cross-examined Manley about certain inconsistencies between his contemporaneous description of the shooter and Smith's appearance at trial. (Doc. 14-3 at 250).

         b. Lee Keith.

         Keith testified that he had identified Smith at the live lineup (Doc. 14-3 at 338), but acknowledged that he was not "one hundred percent" certain about the identification, being only "about ninety-eight percent" sure. (Doc. 14-3 at 338-39). Defense counsel impeached Keith on cross-examination with prior, equivocal statements about whether he saw the shooter's face. (Doc. 14-3 at 354). The trial judge ultimately read Keith's earlier statements and instructed the jurors to give them whatever weight they believed appropriate. (Doc. 14-3 at 357-59).

         c. Tommy Whitmer.

         Whitmer (who was ten years old at the time of the shooting) testified that he recognized Smith at the live lineup. (Doc. 14-3 at 381-82). Whitmer said that when Smith ran past him the night of the shooting, Smith was fifteen to twenty feet away from him (Doc. 14-3 at 406); on cross-examination, however, this testimony was impeached with earlier statements in which he indicated Smith was a block away (Doc. 14-3 at 408), and Smith was a couple blocks away. (Doc. 14-3 at 414). Counsel also cross-examined Whitmer as to the length of time he saw Smith and Whitmer acknowledged he saw him for a "matter of seconds" as he ran past. (Doc. 14-3 at 406).

         d. Detective Glen Gause.

         Gause testified that within days of the shooting he showed Manley various photographs that did not include Smith's photograph and that Manley did not identify the shooter in any of those photographs. (Doc. 14-4 at 37). But Gause explained that when he showed Manley additional photographs about two months later that included Smith's photograph, Manley identified Smith as the shooter. (Doc. 14-4 at 44). Gause also showed various photographs to Keith, who identified three possible individuals as the shooter, one of whom was Smith. (Doc. 14-4 at 45-46). Gause described Whitmer's identification saying Whitmer's lip quivered and he began to cry when he saw the individuals in the live lineup but that he held up four fingers to indicate the person he saw on the night of the shooting - the ordinal position that Smith occupied in the lineup. (Doc. 14-4 at 46-47).

         e. Mazie Pauldo.

         Pauldo testified she saw the shooter "square in the face" and "clearly". (Doc. 14-4 at 61-62). Police showed Pauldo various photographs over the succeeding months (Doc. 14-4 at 63), and she eventually recognized Smith in one of them. (Doc. 14-4 at 63-65). Pauldo identified "number four" as the shooter at the live lineup. (Doc. 14-4 at 64-65). Pauldo acknowledged she had been convicted of four felonies and that she had also been convicted of a misdemeanor involving the making of false statements. (Doc. 14-4 at 65-66).

         On cross-examination, Pauldo conceded that the suspect's knuckles as described in her statement to police did not resemble Smith's knuckles as they appeared at trial. (Doc. 14-4 at 116, 126). She also conceded that the suspect's height as she described it to police was not consistent with Smith's actual height (Doc. 14-4 at 118, 126), and the suspect's hair as she described it to police was not consistent with Smith's hair as it appeared at trial. (Doc. 14-4 at 116, 128). She also admitted that she told the police the shooter was between the ages of sixteen and nineteen, several years younger than Smith's age at the time of the shooting. (Doc. 14-4 at 97, 99 & Doc. 14-2 at 90). Pauldo's cross-examination ended with a question about whether Smith was the man she saw. She answered in relevant part: "I don't know." (Doc. 14-4 at 128).

         f. Detective Glen Gause.

         On recall by the State, Gause testified that Pauldo was shown more than one hundred photographs but eventually recognized the shooter when shown Smith's photograph. Gause recounted that upon being shown Smith's photograph Pauldo stated "that's your shooter." (Doc. 14-4 at 161).

         (2) Defense Case-in-Chief

         Smith's basic defense was that law enforcement arrested the wrong man and the shooter was actually his cousin, Vincent Hubbard, a Georgia resident who was staying with Smith's family at the time of the shooting. The testimony included the following:

         a. Pauline Gibson.

         Pauline Gibson, Smith's mother (Doc. 14-4 at 193), testified that Smith entered her house before the gunfire began (Doc. 14-4 at 196-97), and that Hubbard entered after it ended. (Doc. 14-4 at 199). But on cross-examination, Pauline acknowledged that she did not tell anyone that Hubbard entered the house after the gunfire ended until Smith was charged with first degree murder. (Doc. 14-4 at 252-53).

         b. Charles Gibson.

         Charles Gibson is Smith's stepfather. (Doc. 14-4 at 274). Gibson confirmed on cross-examination that Pauline did not say anything about Hubbard being outside at the time of the shooting until after Smith's arrest. (Doc. 14-4 at 292).

         c. Tyra Proctor.

         Tyra Proctor, Smith's friend (Doc. 14-4 at 299), testified that she and Smith were talking on the phone at the time of the shooting and that she could hear gunfire in the background. (Doc. 14-4 at 302). Proctor heard "someone yelling, get back, I have a gun. I'll shoot." (Doc. 14-4 at 301-02). But the prosecution impeached Proctor on cross-examination with an earlier statement in which she did not mention hearing someone yell "I have a gun" or "I'll shoot". (Doc. 14-4 at 317).

         d. Petitioner Benjamin Smith.

         Smith identified a photograph of himself taken at or about the time of the shooting with his hair in an afro style. (Doc. 14-4 at 362-63). He acknowledged on cross-examination that he had previously been convicted of four felonies. (Doc. 14-4 at 374-75).

         e. Tracy Demunck.

         Demunck is Pauline Gibson's neighbor. (Doc. 14-5 at 10). Demunck testified she heard gunshots and screams outside her home (Doc. 14-5 at 11), and saw Pauline Gibson and Smith come out of Pauline's house about ten to fifteen minutes after the shooting stopped. (Doc. 14-5 at 16). She spoke with Pauline who told her that she and Smith were in her house at the time of the shooting. (Doc. 14-5 at 17-18). Demunck confirmed on cross-examination that Pauline did not say anything about Hubbard being outside at the time of the shooting. (Doc. 14-5 at 21-22). Demunck also acknowledged that she did not hear anyone say "I've got a gun, get back, I'm going to shoot you." (Doc. 14-5 at 22).

         f. Detective Glen Gause.

         Smith also called Gause as a witness. Gause testified that Smith's family members identified Vincent Hubbard as a suspect in the shooting (Doc. 14-5 at 49). Gause travelled to Georgia and met with Hubbard and Hubbard's father. (Doc. 14-5 at 50). Gauze explained that Hubbard did not fit the description of the suspect. (Doc. 14-5 at 51).

We were looking for someone that had a mustache, was older, had a gut. And when looking at [Hubbard] he couldn't grow any hair, if he wanted to, especially on his upper lip. He had no gut at that time. He was broad shouldered but he was solid, real solid kid. Football player.

(Doc. 14-5 at 51). Gauze continued:

What [Mazie Pauldo] and other witnesses had said, the other witness had said how the person was running and would have to stop intermittently. And then [Mazie] later said this person appeared to be out of breath when he got to her point. And so this kid here was a running back for a football team and did not appear to be for that short of a distance to run out of gas or anything.

(Doc 14-5 at 52). Gauze spoke with Smith before the live lineup and Smith never suggested that Hubbard was involved in the shooting. To the contrary, Smith said that Hubbard was in the house at the time of the shooting. (Doc. 14-5 at 77). Gause told Smith that Smith was a suspect. (Doc. 14-5 at 77).

         g. Lorisa Gibson.

         Lorisa Gibson is Smith's sister. (Doc. 14-5 at 133). Lorisa testified that she spoke with Hubbard the day after the shooting and he appeared "very nervous and scared." (Doc. 14-5 at 136). Lorisa noticed scratches on Hubbard's arm. (Doc. 14-5 at 148). According to Lorisa, the day after the shooting, Hubbard admitted to her that he was the shooter. (Doc. 14 -5 at 138). Lorisa acknowledged on cross-examination, however, that she did not tell Smith's lawyer about Hubbard's confession even after the lawyer told her that Smith had been arrested for murder. (Doc. 14-5 at 158-60). Lorisa also acknowledged she did not contact the police to tell them about Hubbard's confession until after Smith's arrest, approximately two and one-half years after Hubbard's alleged confession. (Doc. 14-5 at 168). Lorisa conceded at the end of cross-examination that she was testifying to keep her brother from going to prison. (Doc. 14-5 at 169).

         h. Carl Patrick.

         Patrick is the father of Lorisa Gibson's children. (Doc. 14-5 at 178). Patrick testified that he saw Hubbard after the shooting with scratches on his arm (Doc. 14-5 at 180), describing Hubbard as "scared", "paranoid" and "shaking". (Doc. 14-5 at 180). Patrick said that Hubbard bragged several months later about getting away with the shooting. (Doc. 14-5 at 182-83). But Patrick admitted on cross-examination that he did not contact police about Hubbard's statements (Doc. 14-5 at 187), even after Smith's arrest (Doc. 14-5 at 190), and, in fact, did not tell anyone. (Doc. 14-5 at 187).

         i. Petitioner Benjamin Smith.

         Smith was again called to testify. He explained that on the day of the shooting, he returned to his mother's home shortly before the shooting. (Doc. 14-5 at 205-08). Soon after entering the house, Smith telephoned Proctor. (Doc. 14-5 at 210). While he was talking to Proctor, he heard shots outside. (Doc. 14-5 at 210). Smith said he went downstairs and Hubbard ran into the house (Doc. 14-5 at 214), appearing "frightened" and "just [a] different person." (Doc. 14-5 at 216). Smith saw Hubbard the next day and Hubbard had cuts on his arm (Doc. 14-5 at 220). According to Smith, Hubbard later admitted to him that he was the shooter. (Doc. 14-5 at 226-27). But Smith conceded on cross-examination that he did not tell the police about Hubbard's confession at the time because "it ain't my problem" (Doc. 14-5 at 227), and did not tell law enforcement about Hubbard's admission even after learning he was a suspect in the shooting (Doc. 14-5 at 230), or later when he was arrested. (Doc. 14-5 at 244). Smith also admitted that he had earlier told investigators a different story- that he knew Hubbard was not the shooter because Hubbard was at home when the shooting occurred. (Doc. 14-5 at 230-31).

         j. Vincent Hubbard.

         Hubbard was in his room at the Gibson house at the time of the shooting. (Doc. 14-5 at 101). He explained that gun shots woke him and he went downstairs (Doc. 14-5 at 102), at which time he could hear people and sirens outside. (Doc. 14-5 at 103). ...

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