Spann v. State

91 So. 3d 812, 2012 WL 1868491
CourtSupreme Court of Florida
DecidedMay 24, 2012
DocketNo. SC09-2330
StatusPublished
Cited by12 cases

This text of 91 So. 3d 812 (Spann v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spann v. State, 91 So. 3d 812, 2012 WL 1868491 (Fla. 2012).

Opinion

PER CURIAM.

Anthony Spann appeals the denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. In his motion, Spann challenged his convictions and sentences, including a judgment of conviction of first-degree murder and a sentence of death, based on the recantation testimony of accomplice Lenard Philmore, which Spann submitted to the trial court as newly discovered evidence. Because this case concerns postconviction relief from a capital conviction for which a sentence of death was imposed, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the denial of postconviction relief.

I. STATEMENT OF THE CASE

Spann’s convictions and sentences stem from his participation in a November 1997 crime spree that included a pawn shop robbery, bank robbery, carjacking, and murder. Following a jury trial in November 2000, Spann was convicted of conspiracy to commit robbery with a deadly weapon, for which he received a sentence of fifteen years in prison; carjacking with a deadly weapon, for which he received life imprisonment; kidnapping, for which he received life imprisonment; robbery with a deadly weapon, for which he received life imprisonment; and grand theft, for which he received five years. For the death of the murder victim, Kazue Perron, Spann [815]*815was convicted of first-degree murder and sentenced to death. This Court affirmed Spann’s convictions and sentences on direct appeal. See Spann v. State, 857 So.2d 845 (Fla.2003).1

At trial, the State’s primary witness against Spann was his accomplice, Lenard Philmore.2 On or about September 1, 2008, Spann received an affidavit from Philmore which stated in part, “Anthony Spann didn’t have anything to do with the crime for which we are on death row for.” Spann subsequently filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Spann raised, several claims in his petition, including an “actual innocence” claim based on Philmore’s recantation. See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In response to the State’s argument that the claim was unexhausted, Spann requested that his federal petition be held in abeyance. The federal district court denied the request, explaining that “[u]pon the filing of a successive motion for post-conviction relief in state court, [Spann] may refile his request to stay the instant Petition.”

On May 4, 2009, Spann filed the instant successive rule 3.851 motion in which he argued, as his sole claim, that he is entitled to a new trial based on Philmore’s recantation. On September 1, 2009, the trial court held an evidentiary hearing on Spann’s successive motion. Spann’s sole witness at the hearing was Lenard Phil-more. In his postconviction testimony, Philmore denied that Spann had any involvement in the pawn shop robbery, the bank robbery, or the carjacking and murder of Kazue Perron. Philmore explained that he had “changed [his] life” and that he had “decided it was time to tell the truth.” Following the evidentiary hearing, the trial court issued an order denying Spann’s motion, finding Philmore’s recantation “not credible, untruthful, and exceedingly unreliable.” Spann now appeals the trial court’s denial of relief.

II. STANDARD OF REVIEW

This Court has previously held that for a conviction to be set aside based on a claim of newly discovered evidence, the 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.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). In determining whether the newly discovered evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the new[816]*816ly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So.2d 911, 916 (Fla.1991) {“Jones I”).

While this Court has recognized that the recantation of a witness may under some circumstances qualify as newly discovered evidence, see Wyatt v. State, 71 So.3d 86, 100 (Fla.2011), we have also observed that recantations are, as a general matter, “exceedingly unreliable.” Bell v. State, 90 So.2d 704, 705 (Fla.1956). Our decision in Armstrong v. State, 642 So.2d 730 (Fla.1994), sets forth the principles to be followed when the testimony of a recanting witness is submitted as newly discovered evidence:

Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. In determining whether a new trial is warranted due to recantation of a witness’s testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. “Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” Only when it appears that, on a new trial, the witness’s testimony will change to such an extent as to render probable a different verdict will a new trial be granted.

Id. at 735 (citations omitted) (quoting Bell, 90 So.2d at 705); see also Lambrix v. State, 39 So.3d 260, 272 (Fla.2010); Archer v. State, 934 So.2d 1187, 1196 (Fla.2006). In accordance with Armstrong, “recanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true, and (2) the recanted testimony would probably render a different outcome in the proceeding.” Davis v. State, 26 So.3d 519, 526 (Fla.2009).

Moreover, this Court has explained that when, as in this case, “a newly discovered evidence claim relies on an admission of perjury, the critical issue of credibility necessarily arises.” Archer, 934 So.2d at 1196. Unlike this Court, “the trial judge is there and has a superior vantage point to see and hear the witnesses presenting the conflicting testimony. The cold record on appeal does not give appellate judges that type of perspective.” State v. Spaziano, 692 So.2d 174, 178 (Fla.1997); see also Nixon v. State, 2 So.3d 137, 141 (Fla.2009) (noting that appellate courts do not “reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses” (quoting Brown v. State, 959 So.2d 146, 149 (Fla. 2007))). For that reason, “[t]his Court will not substitute its judgment for that of the trial court on issues of credibility.” Johnson v. State, 769 So.2d 990, 1000 (Fla. 2000).

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