Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JAMARR SCOTT, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1827 March 30, 2022 Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge. Rachael E. Reese, O'Brien Hatfield Reese, P.A., Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Suzanne C. Bechard, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Jamarr Scott appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850(b). In his motion, Mr. Scott alleged newly discovered recantation testimony of two witnesses who had testified against him at his trial. At his trial, both witnesses had positively identified Mr. Scott as having fired a "chopper"1 at the victim on the day of the crime. Mr. Scott attached to his motion affidavits from these same witnesses in which they averred that, in fact, they had not seen Mr. Scott at the scene of the crime and that they had been coerced by a detective to testify otherwise. These allegations were sufficient to warrant an evidentiary hearing. See, e.g., Lewis v. State, 725 So. 2d 1186, 1187 (Fla. 2d DCA 1998) ("In determining whether a new trial should be granted based on recanted testimony, the trial court must first determine if the recanting witness is testifying truthfully in the recantation."); Murrah v. State, 773 So. 2d 622, 623 (Fla. 1st DCA 2000) ("[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony."); Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999) ("Florida law treats recantations with suspicion, and requires a new trial only if the court is satisfied 1 A "chopper," according to one of the witnesses, is a colloquialism for an "assault rifle." 2 that the recantation is true and that 'the witness's testimony will change to such an extent as to render probable a different verdict.' An evidentiary hearing is usually required to make that determination." (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994))). A summary denial of a rule 3.850 motion is appropriate only when the claims are "facially invalid or conclusively refuted by the record." See Bickel v. State, 326 So. 3d 1199, 1201(Fla. 2d DCA 2021) (quoting McLin v. State, 827 So. 2d 948, 954 (Fla. 2002)). The case before us does not meet either threshold. Accordingly, we reverse the circuit court's order and remand for further proceedings consistent with this opinion. Reversed and remanded. BLACK and LUCAS, JJ., Concur. ATKINSON, J., Concurs with opinion. ATKINSON, Judge, Concurring. I concur with the majority. I write separately to explain why. The remaining evidence refutes the probability that the mere elimination of two of the three eyewitnesses' identification testimony would result in a different outcome at a new trial. However, the 3 affidavits did not just subtract evidence, they added evidence that at least some of the testimony had been coerced. Without an evidentiary hearing it cannot be determined whether those recanting witnesses' accusations of police coercion would probably produce an acquittal by weakening the case against Scott "so as to give rise to a reasonable doubt." See Jones v. State, 709 So. 2d 512, 521, 526 (Fla. 1998) (explaining that to determine whether newly discovered evidence "would probably produce an acquittal on retrial" the postconviction court is to assess the "weight of both the newly discovered evidence and the evidence which was introduced at the trial" (quoting Jones v. State, 591 So. 2d 911, 916 (Fla. 1991))). The recanting witnesses' affidavits do not aver that Scott was not a shooter; the affiants simply recant their identification of Scott as a shooter. So, even with their eyewitness identification testimony eliminated, the remaining testimony—e.g., that one of the shooters arrived in a green Impala (which matches the model and color of an automobile Scott owns)—is corroborative of the remaining eyewitness who has not recanted her identification testimony. 4 The recanting witnesses may now be agnostic on the question of whether Scott was a participant in the shooting, but neither the substance of the trial testimony that they did not recant nor what they said in their affidavits in any way contradicts the substantial inculpatory evidence provided by others. If the affiants had merely withdrawn their testimony that Scott was among the shooters, Scott's claim would be contradicted by the record, which includes no testimony against which any new testimony of the recanting witnesses needs to be weighed at an evidentiary hearing. If the recanting witnesses' affidavits had asserted that they observed the shooters and Scott was not among them, an evidentiary hearing would be necessary to resolve the resulting conflict with other testimony. Under those circumstances their hypothetical testimony—that Scott was not one of the shooters— would need to be weighed against the remaining eyewitness testimony—that Scott was among the shooters. But that is not what the affidavits say. The recantation was much more narrow, surgically excising the identification of Scott without risking disruption of other aspects of their trial testimony. See Affidavit of Marquet Moragne (explaining that he was "coerced" to identify 5 "JaMarr Scott as one of the shooters" and asserting that he "never saw JaMarr Scott at the scene of the shooting"); Affidavit of Marlon Smith (explaining that he was "coerced" "to say that Jamar [Scott] was the shooter," that his testimony "that I saw [Scott] shoot at me and my family . . . was not the truth," and that "I never actually witnessed Jamar Scott shoot a gun on the night of 10/10/07"). After elimination of that portion of the recanting witnesses' testimony that identified Scott as a shooter, what remains is more than adequate to have supported the jury verdict. Even with their eyewitness identification testimony eliminated, the remaining testimony of the affiants is corroborative of the other eyewitness, who—unlike the recanting witnesses who were able to quickly run for cover—remained in front of the house under fire during the entire episode and has not recanted her unequivocal identification of Scott as one of the shooters. And two of the witnesses recounted the make and model of the car in which one of the perpetrators arrived at the house. Scott was later apprehended in his vehicle that precisely matched that description while he was in the presence of his girlfriend—who had earlier placed a phone call to the attackers that is alleged to have instigated the shooting attack 6 following her argument with one of the victims. "In the back seat of that vehicle," the arresting officers "found a high-powered rifle" and "a 100-round drum of bullets that goes to the rifle." The affidavits do not contradict the other identification witness's testimony regarding the crime itself, and the affiants' remaining trial testimony still corroborates it in many respects. As such, the affiants' recantations themselves would not necessitate an assessment of their credibility or need to be weighed against any of the damning evidence that remains. Before further eroding the finality of a judgment and sentence by holding a postconviction evidentiary hearing, a court must determine whether the record would still refute the postconviction claim even if the newly discovered testimony were true. See Fla. R. Crim. P. 3.850(f)(5) ("If the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of law or by reliance upon the records in the case, the motion shall be denied without a hearing by the entry of a final order." (emphasis added)); McLin v. State, 827 So. 2d 948, 955 (Fla. 2002) (indicating that a court must accept an affiant's allegations "as true" for the purpose of determining whether an evidentiary 7 hearing is necessary). In this case, that assessment required the postconviction court to determine whether the newly discovered falsity of some trial testimony would probably result in an acquittal because the State's case would be so weakened that there would be reasonable doubt as to Scott's culpability despite the other evidence against him. See Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (explaining that to entitle a postconviction defendant to a new trial "newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial" and that it satisfies that test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability" (alteration in original) (quoting Jones, 709 So. 2d at 521, 526)); Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999) ("Florida law treats recantations with suspicion, and requires a new trial only if the court is satisfied that the recantation is true and that 'the witness's testimony will change to such an extent as to render probable a different verdict.' " (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994))). Given the totality of evidence presented at the trial, the partial recantation of two eyewitness identifications would not satisfy that test. The State's case would still include three eyewitnesses to a 8 shooting, one of whom unequivocally identified Scott as a shooter and two of whom testified that one of the shooters arrived in an automobile of the same make, model, and color of that owned by Scott; testimony that he was later apprehended in a vehicle matching that description; testimony that he was with his girlfriend, who was identified as having summoned the attackers to the scene of the crime by phone after getting into a spat with one of the victims before escaping the scene in a getaway car with one of the perpetrators; and testimony that Scott was later apprehended in possession of a rifle with a 100-round ammunition drum after being identified as a suspect in a shooting involving the discharge of multiple rounds from a "big gun."2 It is the postconviction 2 The other eyewitness testified that outside her home she and a woman named Ms. Walker, who was later identified to be Scott's girlfriend, had become "involved in an argument" before Ms. Walker placed calls to two of the shooting suspects, one of whom was Ms. Walker's father and the other Scott, and told them that she was being threatened. Two cars arrived, "[a]nd when they got out of the car, the first person who I saw was [Scott] with a big gun. The next person I saw was [Ms. Walker's father] with a big gun. I could not identify the third person." Among other notable testimony, the witness explained: "I remember faces. I don't forget them. I might not remember names, but I don't forget faces. . . . I have nightmares now from it. So I know . . . for a fact that [Scott] was definitely one of them." "When they were shooting, the rest [of the victims, including the two recanting witnesses] went on the side of 9 defendant's burden to establish entitlement to an evidentiary hearing, see Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012), and it would be dubious to conclude that an acquittal would be probable or that the mere elimination of the recanting witness's identification had any likelihood of creating a reasonable doubt if the defendant had done nothing more than chisel away a fragment of inculpatory testimony and left unmolested the bulk of the State's case. Where, as here, the recantations if presumed to be true would not likely affect the verdict, no hearing would be required to assess the affiants' credibility. See Morris v. State, 275 So. 3d 230, 234, 237 (Fla. 1st DCA 2019) (affirming the denial of a newly discovered evidence claim without an evidentiary hearing because the "[r]ecanted testimony would not have altered trial's outcome"); the house. I’m the only one that didn't take off running on the side of the house." She identified Scott, whom she recognized, as the "most angriest one" of the shooters "[b]ecause of the way he jumped out of his car," which she identified as the green Impala. "He didn't even try to find out, see what was going on, did anybody hurt his family or nothing. He just . . . took whatever [Ms. Walker] said to him on the phone and just started shooting once he got out of the car." The witness recounted that Scott fled the scene in the green Impala and Ms. Walker "left her car" at the scene and departed with her father in the car he "had gotten out of before" participating in the shooting. 10 Williams v. State, 876 So. 2d 1234, 1235 (Fla. 4th DCA 2004) ("We recognize that the trial court failed to conduct an evidentiary hearing before rejecting the recanting affidavit of a co-defendant. We are, nevertheless, satisfied upon a full review of the record . . . that, taking the affidavit as true, it cannot be said that the new testimony would probably produce an acquittal on re-trial." ). However, the newly discovered evidence in this case includes not only the elimination of incriminating testimony but the addition of testimony that two of the three eyewitnesses were coerced by a law enforcement officer to identify Scott as one of the shooters. And the officer accused in the affidavits as having coerced the identification testimony was the same officer who elicited the nonrecanting witness's identification and who testified at trial regarding the incriminating circumstances of Scott's apprehension. The postconviction court's charge is not merely to surmise what would have happened had the recanted testimony not been given at the original trial but to assess whether the newly discovered evidence would probably result in an acquittal upon retrial. See, e.g., Marek, 14 So. 3d at 990 (providing that the "newly discovered 11 evidence must be of such nature that it would probably produce an acquittal on retrial"). Presuming the truth of the affiants' accusations against the law enforcement officer, would presentation to the jury of evidence that two of the eyewitnesses had been pressured by an investigator to identify a shooter they had not actually seen probably result in an acquittal? Would the pall of possible police coercion convince the jury that a reasonable doubt as to Scott's culpability precluded a guilty verdict? See id. ("In determining whether the evidence compels a new trial, the postconviction 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.' " (quoting Jones, 591 So. 2d at 916)). If impeached with their prior identifications of Scott as a shooter and their prior trial testimony to that effect, would the affiants' recantations and allegations of coercion3 likely cause the jury to reasonably doubt the other evidence arrayed against him? 3 One affiant provided no details to describe his general allegation of coercion but explained he "went along with [his] family in order to avoid getting in trouble." The other affiant described the coercion by recounting that an officer told him that he would "have 12 These are difficult questions ill-suited for review from the summary denial of a postconviction motion based on newly discovered recantation evidence. See Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013) ("A postconviction court's decision of whether to grant an evidentiary hearing on a rule 3.850 motion is ultimately based on written materials before the court. Therefore, the court's ruling is tantamount to a pure question of law, subject to de novo review."). This court cannot speculate what effect the addition of allegations of police coercion might have on a jury if presented with such testimony. A determination of whether and what testimony regarding the alleged police coercion would be presented at retrial and whether it would probably result in an acquittal would start with whether the affiants were credible, a determination that requires an evidentiary hearing. Before granting a new trial based on newly discovered evidence, a postconviction court must be "satisfied that the recantation is true" and that "the recanted testimony would problems around the neighborhood" and that "things would not go well for" him "if [the affiant] did not cooperate with the detective and allegedly pick [Scott] as one of the shooters." 13 probably render a different outcome in the proceeding." Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). The Florida Supreme Court has explained that "[t]he determination of whether the statements are true and meet the due diligence and probability prongs . . . usually requires an evidentiary hearing to evaluate credibility unless the affidavit is inherently incredible or obviously immaterial to the verdict and sentence." Id. Scott failed to carry his burden to show that the recantations themselves would probably render a different outcome upon retrial. Without an evidentiary hearing, however, the same cannot be said of the accusations of police coercion, which are not "obviously immaterial" to the case against him. See id. Opinion subject to revision prior to official publication. 14