McLin v. State

159 So. 3d 870, 2015 Fla. App. LEXIS 2110, 2015 WL 672434
CourtDistrict Court of Appeal of Florida
DecidedFebruary 18, 2015
DocketNo. 3D13-473
StatusPublished

This text of 159 So. 3d 870 (McLin v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLin v. State, 159 So. 3d 870, 2015 Fla. App. LEXIS 2110, 2015 WL 672434 (Fla. Ct. App. 2015).

Opinion

ROTHENBERG, J.

In his attempt to obtain a new trial on the basis of “newly discovered evidence,” the defendant, Tracy McLin, has fared no better than he did on his 1996 motion for postconviction relief, which also sought a new trial based on newly discovered evidence. After conducting a lengthy eviden-tiary hearing, the trial court issued a very thorough and detailed written order that includes both factual findings and credibility determinations. Because the trial court’s order denying the defendant’s motion is amply supported by the record, we affirm.

In 1995, a jury found the defendant guilty of first degree murder and armed robbery, and the defendant was sentenced to life in prison. The evidence introduced at trial demonstrated that when the defendant, who was driving to a strip club with two other individuals, Jose Saldana (“Sal-dana”) and Oliver Menzies (“Menzies”), saw an unknown man alone on the side of the road (“the victim”), he turned the car around, pulled out a firearm, approached the victim, and told the victim to hand over his wallet. When the victim began moving towards the defendant, the defendant shot him at close range. The victim, who was an unarmed minister returning home for the night, died clutching a bible to his chest.

At trial, the State relied on eyewitness testimony as well as a photograph that was found in the defendant’s home linking the defendant to the murder weapon to prove the defendant’s guilt. One of the men the defendant was with on the night of the murder, Menzies, testified at the defendant’s trial and provided an eyewitness account of the murder. The other man in the car with the defendant, Saldana, gave deposition testimony fully corroborating Menzies’ version of- events. Additionally, several other witnesses testified that, shortly after the murder, the defendant personally told them he was the one who had shot the victim. For example, Jacqueline Spivey (“Spivey”) testified that she had seen the defendant with the murder weapon shortly before the shooting; the defendant later admitted to her that he had shot the victim; and the defendant told her he was worried that Saldana or Menzies would “snitch” on him. Menzies and Saldana were convicted as accessories after the fact to the murder, among other unrelated criminal charges.

Shortly after the defendant’s convictions were affirmed on appeal, he filed a motion for postconviction relief based on newly discovered evidence and claiming ineffective assistance of trial counsel (“the first 3.850 motion”). The defendant’s first 3.850 motion was based on an affidavit signed by Saldana in which he recanted his prior deposition testimony and averred that he and Menzies had framed the defendant for the victim’s murder in order to take the blame off themselves. Saldana’s affidavit stated that the defendant had [872]*872nothing to do with the murder and that Menzies was the actual triggerman. The affidavit also portrayed Menzies as the mastermind of a conspiracy to frame the defendant and stated that Menzies had threatened Saldana and other witnesses in order to procure the false testimony. During the pendency of the first 3.850 motion and prior to the evidentiary hearing that was conducted by the trial court, Menzies died in an automobile accident.1

Although Menzies was no longer available to refute Saldana’s claims, the State discovered evidence that effectively exposed the defendant’s plot to deceive the court. Prior to the evidentiary hearing, correctional officers discovered a letter from the defendant in Saldana’s prison cell telling Saldana what to say in his affidavit and impliedly threatening Saldana and his family if he did not cooperate. The letter in essence told Saldana to blame nearly everything on Menzies. After considering all of the evidence, including the damning letter written by the defendant, the trial court found that Saldana’s affidavit and testimony were completely unbelievable and denied the defendant’s first 3.850 motion. This Court affirmed that ruling in a short written opinion. McLin v. State, 949 So.2d 1123 (Fla. 3d DCA 2007) (per cu-riam).

Undaunted by the exposure of his first attempt to obtain a new trial by manipulating the evidence against him, on December 29, 2008, twelve years after filing his first 3.850 motion, the defendant filed another motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (“the second 3.850 motion”), again claiming he was entitled to a new trial based on newly discovered evidence. Attached to this motion were two affidavits, one from Jacqueline Spivey and one from Sabrina Francis.

In her affidavit, Spivey claimed that she had provided false testimony at the defendant’s trial at Menzies’ behest; Menzies was the actual shooter; Menzies had orchestrated a massive conspiracy to frame the defendant for the victim’s murder; and Menzies had threatened all of the witnesses and convinced them to collaborate so that each story corroborated the other. Spivey claimed that she falsely accused the defendant because they were former lovers and the defendant had left her for another woman.

The second affidavit was from Sabrina Francis, an inmate who was incarcerated in the same prison facility as Spivey. Francis did not testify at the defendant’s trial. Francis attempted to bolster Spi-vey’s affidavit by claiming that Sjoivey had confided in Francis and told her that she had falsely accused the defendant of murder before Spivey discovered that Francis knew the defendant. Francis, however, was the defendant’s sister’s best friend since childhood, and contrary to Francis’s sworn affidavit, Francis had known Spivey and the defendant for many years prior to Francis and Spivey meeting again in prison.

The trial court conducted an evidentiary hearing on the defendant’s second 3.850 motion, at which the following witnesses testified: Spivey, Francis, the defendant, Spivey’s attorney, Robyn Blake, one of the detectives who initially investigated the defendant, and a correctional officer. The trial court ultimately found that Spivey and Francis were unbelievable and that their testimonies were “an elaborate ruse [873]*873intended to deliberately mislead the trial court into granting post-conviction relief from [the defendant’s] homicide conviction.” The trial court accordingly denied the defendant’s second 3.850 motion and issued a very thorough and detailed written order, which included factual findings and credibility determinations.

The defendant’s sole contention on appeal is that the newly discovered evidence, when considered in conjunction with Salda-na’s affidavit and testimony from the first 3.850 motion, is so strong that the trial court erred as a matter of law by denying the second 3.850 motion. A review of the record, however, demonstrates the opposite.

To obtain a new trial based on newly discovered evidence, a defendant must satisfy a two prong test: First, the evidence must not have been known at the time of trial by the trial court, the parties, or counsel, and it must appear that the defendant or defense counsel could not have discovered the evidence through the use of due diligence; and second, the newly discovered evidence must be of such a nature that it would probably produce an acquittal if presented at a new trial. Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997).

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Related

Blanco v. State
702 So. 2d 1250 (Supreme Court of Florida, 1997)
Melendez v. State
718 So. 2d 746 (Supreme Court of Florida, 1998)
Jones v. State
591 So. 2d 911 (Supreme Court of Florida, 1991)
Armstrong v. State
642 So. 2d 730 (Supreme Court of Florida, 1994)
Bell v. State
90 So. 2d 704 (Supreme Court of Florida, 1956)
Schofield v. State
32 So. 3d 90 (District Court of Appeal of Florida, 2009)
Riechmann v. State
966 So. 2d 298 (Supreme Court of Florida, 2007)
McLin v. State
949 So. 2d 1123 (District Court of Appeal of Florida, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
159 So. 3d 870, 2015 Fla. App. LEXIS 2110, 2015 WL 672434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclin-v-state-fladistctapp-2015.