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IN THE SUPREME COURT OF FLORIDA
CASE NO. 78,070

JASON DIRK WALTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.

ON APPEAL FROM THE SIXTH JUDICIAL CIRCUIT COURT,
IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA

SUPPLEMENTAL BRIEF OF APPELLANT

PAMELA H. IZAKOWITZ
Florida Bar No. 0053856
Capital Collateral Regional Counsel South
303 S. Westland Avenue
P.O. Box 3294
Tampa, FL 33601
(813) 259-4424
COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit
court's denial of Mr. Walton's motion for post-conviction
relief.
3.850.

The motion was brought pursuant to Fla. R. Crim. P.
The circuit court denied Mr. Walton's claims following

a limited evidentiary hearing in 1991 and again in 2000.
The following symbols will be used to designate
references to the record in this instant cause:
"R" -- Record on Direct Appeal to this Court;
"R2" -- Record on Resentencing Appeal to this Court;
"PC" -- Record on 3.850 Appeal to this Court;
“PC-1" -- Record on 3.850 Appeal after remand.
All other citations will be self-explanatory or will be
otherwise explained.
REQUEST FOR ORAL ARGUMENT
Mr. Walton requests that oral argument be heard in this case.
This Court has not hesitated to allow oral argument in other capital
cases in a similar posture.

A full opportunity to air the issues

through oral argument would be more than appropriate in this case,
given the seriousness of the claims involved and the stakes at issue.

STATEMENT OF FONT
This brief is typed in Courier 12 point not proportionately

spaced.

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . i
REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . i
STATEMENT OF FONT . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES

. . . . . . . . . . . . . . . . . . . .

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .

ARGUMENT I
MR. WALTON WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS ATTORNEY FAILED TO ADEQUATELY
INVESTIGATE AND PREPARE. A FULL ADVERSARIAL TESTING
DID NOT OCCUR. COUNSEL'S PERFORMANCE WAS DEFICIENT
AND AS A RESULT MR. WALTON'S SENTENCE OF DEATH IS
UNRELIABLE. . . . . . . . . . . . . . . . . . . . . . .

ARGUMENT II
THE STATE WITHHELD EXCULPATORY AND IMPEACHMENT EVIDENCE,
IN VIOLATION OF BRADY V. MARYLAND. THIS WITHHELD
INFORMATION IMPACTED ON BOTH GUILT AND PENALTY PHASES
OF MR. WALTON’S PROCEEDINGS. . . . . . . . . . . . . . .

ARGUMENT III
MR. WALTON WAS DENIED HIS FUNDAMENTAL RIGHTS TO
CONFRONTATION, TO DUE PROCESS, AND TO A RELIABLE AND
INDIVIDUALIZED HEARING WHEN THE DEFENSE MENTAL HEALTH
EXPERT FROM THE CO-DEFENDANT'S CASE WAS ALLOWED TO
TESTIFY AT HIS EVIDENTIARY HEARING AND HE WAS UNABLE
TO PROPERLY CROSS EXAMINE HIM AS TO HIS CONFLICT OF
INTEREST. . . . . . . . . . . . . . . . . . . . . . . .

iii

ARGUMENT IV
THE TRIAL COURT FAILED TO CONSIDER NEWLY-DISCOVERED
EVIDENCE OF IMPEACHMENT THAT WOULD HAVE SHOWN THAT
MR. WALTON WAS NOT THE RING LEADER OR THE MASTERMIND
BEHIND THE MURDERS, AS ARGUED BY THE STATE. . . . . . .
CONCLUSION

. . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE

80
86

. . . . . . . . . . . . . . . . . . .

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES
CASES

Banks v. Reynolds, 54 F. 3d 1508 (10th Cir. 1995) . . . . . .

Bassett v. State, 451 So. 2d 596 (Fla. 1989)

. . . . . . . .

Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985)

. . . . . . . .

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991)

. . . .

Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987) . . . .

13, 59

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . .

passim

Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991) . . . . . 22, 57,59
Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981)

. . . . . .

Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970) . . . . . . . .

Cooper v. State, 492 So. 2d 1059 (Fla. 1986)

. . . . . . . . . 3

Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991)

. . . . 27,59

Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979),
vacated as moot, 446 U.S. 903 (1980) . . . . . . . .
Engle v. State, 483 So. 2d 803 (Fla. 1983)

21, 56

. . . . . . . . .

. . . . . . . . . . .

Gardner v. Florida, 430 U.S. 349 (1977) . . . . . . . . . . .

Giglio v. United States, 405 U.S. 150 (1972)

Enmund v. Florida, 458 U.S. 782 (1982)

. . . . . . . .

Goodwin v. Balkcom, 684 F. 2d 794 (11th Cir. 1982)
Green v. Georgia, 442 U.S. 95 (1979)

. . . . .

. . . . . . . . . . . .

Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) . . . . .

21, 23

Harrison v. Jones, 880 F.2d 1279 (11th Cir. 1989) . . . . . .

Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995) . . . . . . . .
Hoffman v. State, 2001 WL 747399 (Fla. 2001)

. . . . . 60-61, 70

Huff v. State, 622 So. 2d 982 (Fla. 1993) . . . . . . . . . .

Johnson v. Mississippi, 486 U.S. 578 (1988) . . . . . . . . .

Jones v. Thigpen, 788 F. 2d 1101 (5th Cir. 1986)

. . . . . .

. . . . . . . . .

Kimmelman v. Morrison, 477 U.S. 365 (1986)

King v. Strickland, 748 F. 2d 1462 (11th Cir. 1984)
Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989)

. . . . .

Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . .
Lee v. United States, 939 F.2d 503 (7th Cir. 1991)

22, 57

60-62,70, 72
. . . . .

. . . . . .

. . . . . . . . . . . .

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999)
Lockett v. Ohio, 438 U.S. 586 (1978)

. . . . .

Loyd v. Smith, 899 F.2d 1416 (5th Cir. 1990)

. . . . . . . .

Mauldin v. Wainwright, 723 F.2d 799 (11th Cir. 1984)
Maxwell v. State, 603 So. 2d 490 (Fla. 1992)

. . . .

. . . . . . . .

Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988)

. . . . .

. . . . . . . . .

Mitchell v. State, 595 So. 2d 938 (Fla. 1992) . . . . . . . .

Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985)

. . . . . . .

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979) . . . . . . .

Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989) . . . . . . .

Occhicone v. State, 768 So. 2d 1037 (Fla. 2000) . . . . . . .

Mills v. State, 788 So. 2d 249 (Fla. 2001)

Parker v. Dugger, 111 S.Ct. 731 (1991)

. . . . . . . . .

58, 79

Paxton v. Ward, 199 F. 3d 1197 (10th Cir. 1999) . . . . . . .
Penry v. Lynaugh, 109 S. Ct. 2934 (1989)

. . . . . . . .

58, 85

Phillips v. State, 608 So. 2d 778 (Fla. 1992) . . . . . . . .
Ragsdale v. State, 2001 WL 1241135 (Fla. Oct. 18, 2001) .
Riechmann v. State, 777 So. 2d 342 (Fla. 2000)

21, 34

. . . . . . .

Rogers v. State, 782 So. 2d 373 (Fla. 2001) . . . . . . .

60, 66

Rose v. State, 675 So. 2d 567 (Fla. 1996) . . . . . . . .

21, 22

Rupe v. Wood, 93 F. 3d 1434 (9th Cir. 1996), cert. denied, 519 U.S.
1142 (1997). . . . . . . . . . . . . . . . . . . . . . . . . 68
Sanders v. State, 707 So. 2d 664 (Fla. 1998)

. . . . . . . 77-78

Sellers v. Estelle, 651 F. 2d 1074 (5th Cir. 1981)
Skipper v. South Carolina, 476 U.S. 1 (1986)

. . . . . . .

. . . . . . . . .

State v. Michael, 530 So. 2d 929 (Fla. 1988)

. . . . . . . 22-23

Stevens v. State, 552 So. 2d 1082 (Fla. 1989) . . . . . . . .
Strickland v. Washington, 466 U.S. 668 (1984) . . . . . .
Strickler v. Greene, 527 U.S. 263 (1999)

. . . . . . . 13,68

Smith v. Groose, 205 F. 3d 1045 (8th Cir. 2000)
State v. Lara, 581 So. 2d 1288 (Fla. 1991)

. . . . .

passim

. . . . . . . 60, 70-71

Teffteller v. Dugger, 676 So. 2d 369 (Fla. 1996)

. . . . . .

. . . . . . .

. . . . . . . .

Thomas v. Kemp, 796 F. 2d 1322 (11th Cir. 1986)
United States v. Bagley, 473 U.S. 667 (1985)

United States v. Fessel, 531 F.2d 1275 (5th Cir. 1979)

. . .

United States v. Scheffer, 523 U.S. 303 (1998)

. . . . . . .

Van Royal v. State, 497 So. 2d 625 (Fla. 1986)

. . . . .

vii

3,5,39

Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993) . . . . . . . .
Walton v. Florida, 110 S. Ct. 759 (1990)

. . . . . . . . . . . 6

547 So. 2d 622 (Fla. 1989)

. . . . . . . 5, 55

Walton v. State, 481 So. 2d 1197 (Fla. 1985)

. . . . . . . . . 3

Walton v. State,

Washington v. Smith, 219 F. 3d 620 (7th Cir. 2000)

. . .

37, 72

White v. Helling, 194 F. 3d 937 (8th Cir. 1999) . . . . . . .
Williams v. Taylor, 120 S. Ct. 1495 (2000)

. . . . . . .

56, 61

Williams v. Taylor, 529 U.S. 420 (2000) . . . . . . . . .

36, 70

Young v. State, 739 So. 2d 553 (Fla. 1999)

. . . . . . . . .

Zant v. Stephens, 462 U.S. 862 (1983) . . . . . . . . . . . .

OTHER AUTHORITIES
1 ABA Standards for Criminal Justice 4-4.1,
commentary, p. 4-44 (2d ed 1980)). . . . . . . . . . . . . .

ABA Criminal Justice Mental Health Standard 7-1.1.

. . . . .

Fla. Stat. § 921.141 (1) (1992) . . . . . . . . . . . . . . .

viii

STATEMENT OF THE CASE AND FACTS
Three men were found dead from shotgun wounds in the
Highpoint area of Pinellas County in 1982.

For several months

the crime went unsolved until Robin Fridella, wife and sister
of two of the victims, and another man, contacted police.
They had information that one of the men who shot the victims
was Terry Van Royal.

As a result, Van Royal was arrested and

gave information that led to the arrest of Richard Cooper.

day later, Jason Walton and Walton's younger brother, Jeff
McCoy, were arrested.

Mr. Walton was taken into custody at

his job in Marion County.

A public defender was appointed in

Ocala to represent him at his first appearance.

Subsequently,

two Pinellas County sheriff's detectives transported Mr.
Walton to Clearwater.

In spite of Mr. Walton's stated desire

to deal with law enforcement only through counsel, expressed
in court and in writing, the officers initiated an
interrogation and obtained incriminating statements.
Because of conflicting defenses and facts, the four
defendants were tried separately.1
in February, 1984.

Mr. Walton was convicted

At trial, the State used the statements he

made to the two detectives against him.

At the penalty phase,

Jeff McCoy, Mr. Walton's half-brother, pled guilty and
received a life sentence.
1

the State presented the hearsay testimony of Paul Skalnik, a
professional jailhouse informant, who had been in a jail cell
with Cooper, but had never met Mr. Walton.

The State's case

was that Cooper and Van Royal shot the victims.
jury recommended death.

Mr. Walton’s

On March 14, 1984, Judge William

Walker sentenced Mr. Walton to death on all three counts.
Cooper then went to trial and Judge Walker presided.
After a conviction for first-degree murder, Paul Skalnik
testified in Mr. Cooper's penalty phase.

Cooper's defense was

that he was under the control and domination of Mr. Walton,
who he described as "Charlie Mason."

At sentencing, Dr.

Sidney Merin,2 a confidential defense expert, testified at
length for Mr. Cooper, placing responsibility for the crimes
on Mr. Walton (Cooper Record at 396-400).

The jury

recommended death and Judge Walker followed.
Van Royal was tried next, this time with Judge Fred L.
Bryson presiding.

He was convicted of first-degree murder.

At sentencing on October 19, 1984, an oral death sentence was
pronounced without written findings.

Notice of appeal was

This is the same Dr. Merin who the State called at Mr.
Walton's 3.850 hearing and again after the remand to testify
as to his opinion regarding the dynamics of the homicide.
Since Dr. Merin was privy to confidential communications with
Mr. Cooper, Mr. Walton's right to confront was once again
defeated. See Argument III.
2

filed and the record on appeal filed with this Court.

It was

not until April 15, 1985, that the trial court entered written
findings in support of the death penalty.
Mr. Walton's case was the first to be reviewed by this
Court.

On appeal, the trial court's ruling refusing to

suppress Mr. Walton's statements in the squad car was briefly
challenged, but relief was denied.
2d 1197, 1199 (Fla. 1985).

Walton v. State, 481 So.

Mr. Walton’s death sentence was

reversed based on the State's use of hearsay accounts of Mr.
Skalnik's story implicating Mr. Walton:
The record supports appellant's assertion that
these confessions (through Skalnik) were the primary
evidence relied on by the state in the penalty phase
before the jury and that the trial judge considered
the confessions in sentencing appellant to death.
Appellant did not "open the door" to these
confessions in this phase of the trial. The sixth
amendment right of an accused to confront the
witnesses against him is a fundamental right which
is applicable not only in the guilt phase, but in
the penalty and sentencing phases as well. Id.

In view of our holding, it is unnecessary for us
to address the other penalty phase challenges raised
by appellant.
For the reasons expressed, we affirm appellant's
convictions, but vacate the sentences of death and
remand this cause with instructions to the trial
court to conduct another sentencing hearing before a
new jury.

481 So. 2d at 1200-1201.

The following year, Mr. Cooper's conviction and death
sentence were affirmed.
(Fla. 1986).

Cooper v. State, 492 So. 2d 1059

On September 18, 1986, Mr. Van Royal's

conviction was affirmed but his death sentence overturned and
a life sentence ordered by this Court based on the trial
judge’s delay in entering written findings in support of
death.

Van Royal v. State, 497 So. 2d 625 (Fla. 1986).

The month before the Van Royal decision, Mr. Walton had
his second penalty phase.
O’Leary, the

He was represented by Donald

initial trial.

same court-appointed lawyer who handled the
Judge Mark B. McGarry, Jr., presided over the

second penalty phase.

Because the Van Royal opinion had not

yet been issued, the resentencing jury did not know of Van
Royal's life sentence.

Further, the jury was instructed that

it "must" consider six aggravating circumstances and weigh
them against the three mitigating circumstances conceded by
the prosecuting attorney.

Subsequently, the judge ruled only

four aggravating factors could be properly considered.

After

considering the extra aggravating factors, the jury
recommended death.
Sentencing was August 29, 1986.

The State presented the

trial court and Mr. Walton's lawyer with a lengthy factual and
legal memorandum supporting a death sentence (R2. 150-162).

The State's memorandum presented a number of material "facts"
that were not present in this record.

Trial counsel did not

traverse or challenge the State's memorandum in any way.

The

trial court orally pronounced a death sentence on August 29,
1986 but made no comment on factors in support of that
sentence:
THE COURT: Jason, based upon the findings of
the jury that has found you to be deserving of the
death sentence, nine to three, the Court now does
impose the death sentence upon you, and you will be
held in prison to await the Governor's warrant until
your death.
It is my duty, sir, to advise you that you have
thirty days to appeal the judgment and sentence of
this Court.
(R2. 873).

Several weeks later, on October 16, 1986, after

the Van Royal decision, the trial court entered its Findings
as to Aggravating and Mitigation Circumstances in Support of
the Death Penalty (R2. 196-201).

This document almost

completely adopted the State's memorandum and relied upon the
non-record "facts" as a basis for the death sentence.

The

trial court found six aggravating factors and no mitigating
factors, Walton v. State,

547 So. 2d 622 (Fla. 1989).

This Court affirmed the trial court, Walton v. State, 547
So. 2d 622 (Fla. 1989).

The court found Eighth Amendment

error in the State's use of psychiatric testimony concerning
the child found unhurt at the murder scene.
5

However, the

Court concluded the error was harmless.

This Court also found

"no fundamental error" in the jury instructions about the
aggravating circumstances.
Mr. Walton's petition for certiorari was denied by the
United States Supreme Court on January 8, 1990.
Florida, 110 S. Ct. 759 (1990).

Walton v.

On September 24, 1990, Mr.

Walton's petition for clemency was denied and a death warrant
signed by Governor Bob Martinez.

On October 24, 1990, this

Court stayed his death warrant and ordered that postconviction motions be filed by December 15, 1990.

On December

17, 1990, the motion was filed with the trial court.

The

court summarily denied the motion as to all but two claims on
February 5, 1991 (PC-R. 933-34).

A limited evidentiary

hearing on ineffective assistance of trial counsel and trial
counsel’s effectiveness for failing to traverse the State's
sentencing memorandum was conducted before Circuit Judge
Brandt C. Downey III on February 25-26, 1991.

At the 1986

resentencing, trial counsel had presented three witnesses,
examining them with no particular plan or strategy.
not use a mental health expert.

He did

Substantial testimony of both

statutory and non-statutory mitigation that was available but
not presented in 1986 was presented five years later at the
post-conviction hearing.

The witnesses included one from the

1984 trial who had been available in 1986, Bruce Jenkins; a
forensic psychologist who examined Mr. Walton, Dr. Pat
Fleming; Mr. Walton's father, Irving McCoy II; an older and a
younger sister, Lydia Musheff and Kimberly Fox; and Mr.
Walton's mother, Carolyn Walton.

Trial counsel also testified

about his investigation and preparation.
Mr. Jenkins was a friend of Mr. Walton who testified in
the 1984 trial that he heard Mr. Walton say before the offense
that he must "waste" one of the murder victims.

In spite of

trial counsel's efforts to have him served in order to testify
in 1986, authorities failed to bring him under subpoena.

Mr.

Jenkins testified during post-conviction that he was living in
the same place in 1986, was willing to testify (PC-R. 22-23),
and that a representative of the public defender's office in
Fort Pierce found him in 1989 (PC-R. 23-24).

Had he

testified in 1986, he would have said in the context of the
conversation he did not understand "waste" to mean kill (PC-R.
20-22, 27, 45).

He also would have testified to Mr. Walton's

extensive drug and alcohol use (PC-R. 19, 36-37, 39).
Mr. Walton's parents and siblings testified that he was
the product of an unhappy marriage that ended in bitter
divorce (PC-R. 315, 372-73).

His mother dated other men

openly during the marriage, enjoying sexual relationships with

them (PC-R. 160-62).

The divorce was especially difficult for

Mr. Walton and his younger sister, Ms. Fox (PC-R. 313). The
family was so severely dysfunctional at times that the oldest
sister, Lydia Musheff, spent a great deal of time in therapy
as an adult trying to stabilize her life (PC-R. 162-64, 355).
Many of Mrs. Walton’s

struggles with the marriage were played

out in her distant and unemotional relationship with her son,
who at that time bore her husband's name, Irving McCoy III
(PC-R. 312). She didn't give Mr. Walton the same amount of
attention and affection that she gave the other three children
(PC-R. 342, 390).

Conflicts between the parents were fought

over Mr. Walton even after he became an adult.

This was

typified by his mother's role in urging him as an adult to
legally change his name, from the name of his father, to his
present name (PC-R. 355, 382-83).
One of his stepfathers, Porter Gates, was an alcoholic
and prescription drug abuser.

When Mr. Gates drank, as he

often did, he became loud, noisy, stumbling, "He was grabby to
any women in the room" (PC-R. 350).

Mr. Gates made drugs and

alcohol available to Mr. Walton and sometimes encouraged his
using them (PC-R. 317-18, 374-76).

During one of his drinking

spells, the stepfather choked to death in front of Mr. Walton.
Mr. Walton and his siblings were unable to prevent the death

that came when their mother was out of town (PC-R. 318-19,
376-78).
Mr. Walton first experimented with drugs at age 12 (PC-R.
173), the year his parents divorced.

He and his sister became

increasingly involved in drugs (PC-R. 380).

His mother and

stepfather placed them both in a controversial and coercive
residential juvenile drug program called SEED that did not
cure the drug addiction but further disrupted family
relationships.

Mr. Walton was 16 at the time (PC-R. 323).

When he learned the whereabouts of his son, Mr. Walton’s
natural father tried to make contact but was threatened by
SEED if he tried to do so

(PC-R. 295).

In SEED, children

were encouraged to inform on each other and their parents,
privacy was almost nonexistent, and parent-child communication
greatly restricted.

(PC-R. 320-25, 351-52, 380-82).

Mr.

Walton remained in the program five or six months and lost a
year of high school as a result (PC-R. 323).
During post-conviction proceedings, Mr. Walton was
evaluated by Dr. Pat Fleming.

She interviewed family members

and friends, reviewed extensive records and conducted a
substantial battery of tests (PC-R. 144-48, 178-81).

Her

review of the records, which included references to head
trauma, past hospitalizations for drug treatment, the

administration of psychoactive drugs while he was in jail,
indicated the presence of several "red flags" that "would
trigger the need to certainly pursue it further" (PC-R. 15052). Dr. Fleming explained Mr. Walton's behavior in terms of
three factors:
Q.

What type of factors did you discover here?

A. Of course the obvious one that had to be
looked at is long-term alcohol and drug abuse.
The second is severe psychological stressers
that occurred in the family.
The third is the organicity that was indicated
in his behavior, and the testing I completed.
(PC-R. 154-55).

Dr. Fleming found an extensive history of

poly-drug use and said this resulted in some organic brain
damage (PC-R. 175-178).
Based on her evaluation, Dr. Fleming found two statutory
mitigating factors -- extreme mental disturbance and inability
to appreciate the criminality of his conduct (PC-R. 190-91).
She also found a variety of non-statutory mitigation including
his mother's distant and unemotional relationship with him;
his parents bitter divorce when he was twelve and their
conflicts extending after it; his stepfather's giving him
drugs and alcohol; his stepfather's strangulation death in
front of him, his substance abuse problems beginning at an
early age; and his long history of drug and alcohol abuse (PC10

R. 283-84).

She also found the aggravating factor of cold,

calculated and premeditated was inconsistent with her findings
(PC-R. 190).
Mr. O’Leary testified that had he known of Mr. Walton's
dysfunctional family experience, his childhood drug use, his
SEED placement, he would have used them at the new penalty
phase (PC-R. 55-57, 78-79).

He had no strategic or tactical

reason for not contacting family members about this type of
mitigation and there was no reason for failing to ask the
family members he did contact about these subjects (PC-R.
129).

He recalled Mr. Walton's father seeking him out during

the penalty phase (PC-R. 58), but he still failed to consider
Mr. McCoy as a witness.

He was only aware of one stepfather

in Mr. Walton's life (PC-R. 125). Trial counsel overlooked
references to many of these matters in the 1984 PSI that he
had in his possession (PC-R.127).

Mr. O’Leary also

testified that there was no tactical or strategic reason for
failing to use a confidential defense mental health expert, in
spite of Mr. Walton's extreme and unusual anxiety at the time
of the trial (PC-R. 79-81, 84-85).
case as a defense lawyer (PC-R. 52).

This was his first capital

Q. (By Mr. McClain)
penalty phase?
A.

He said:

Is hearsay admissible in a

No.
11

That's your understanding?

Yes.

Q. Okay. Is or would that be the reason why
you would not have considered actually -- actually
you indicated you didn't think of contacting the
prison for prison records?
A.
(PC-R. 120).

Correct.
He testified there was no reason why he did not

seek DOC records on Mr. Walton from 1984, the year of his
first conviction, through his 1986 penalty phase, which
reflected his good conduct in custody while in custody (PC-R.
71-72, 121).

Likewise, there was no tactical or strategic

reason for his failure to use the 1984 PSI, that indicated the
avoiding lawful arrest aggravating factor was not present (PCR. 73-75).
Likewise, Mr. O’Leary became aware of the life sentence
received by co-defendant and shooter Terry Van Royal, but had
no strategic or tactical reason for failing to bring it to the
sentencing judge's attention and argue the fact in Mr.
Walton's behalf (PC-R. 82).
Trial counsel testified that he realized the significance
of witness Bruce Jenkins’ 1984 testimony that Mr. Walton said
he must "waste" one of the victims, and that he needed to use
Mr. Jenkins to explain that the word did not mean kill, but
that law enforcement told him they could not locate Mr.
12

Jenkins to serve him (PC-R. 60-61, 75-76).

Mr. O’Leary felt

it was important for Mr. Walton's 1986 jury to hear Mr.
Jenkins testify that he did not understand "waste" to mean
kill in the context of the conversation (PC-R. 116-18).
Finally, trial counsel testified that had he known his
introduction of Mr. Walton's rap sheet as evidence of his not
having prior convictions would have opened the door for state
evidence of collateral misconduct (See R2. 782-94) he would
not have done so (PC-R. 66-70).

To the extent he opened the

door for the State, it was not a reasonable tactical or
strategic decision (PC-R. 67).

It was inadvertence that

resulted from ignorance of the law.
The State's only witness was Dr. Sidney J. Merin (PC-R.
413-500).

Dr. Merin had been retained as a confidential

defense expert in the trial of co-defendant Richard Cooper.
He evaluated Mr. Cooper and testified for him.
at 32, 396-440).

(Cooper record

Dr. Merin was aware of the potential

conflict and risk that his previous role might "contaminate my
thinking" (PC-R. 417), but the trial court would not allow him
to answer whether he could ethically accept appointment to
evaluate two co-defendants in the same case(PC-R. 417-20).
Post-conviction counsel objected to Dr. Merin's testimony as
to the presence of statutory aggravating factors in Mr.

Walton's case because of his continuing interest in Mr.
Cooper's welfare and consideration of facts represented to him
by Mr. Cooper. Mr. Walton could not confront Mr. Cooper or Dr.
Merin about the facts(PC-R. 469-75).
Judge Downey denied all of Mr. Walton's claims.

In an

oral order (R2. 1538-51) the court relied exclusively on this
Court's decision in Blanco v. Wainwright, 507 So. 2d 1377
(Fla. 1987). The court found trial counsel's failure to use
Skipper3 evidence in prison records was a "nonissue" (PC-R.
1545-46), and that trial counsel's twice opening the door to
testimony of uncharged criminal activity was not ineffective
(PC-R. 1546).
Mr. Walton's timely Motion for Rehearing (PC-R. 941-54)
was denied on May 3, 1991 (PC-R. 957).

Notice of appeal

timely followed (PC-R. 958-59).
On August 5, 1992, Mr. Walton filed an Initial Brief,
raising fourteen arguments.

Among the arguments, Mr. Walton

said he was unable to obtain the public records to which he
was entitled.

Two years earlier, on November 12, 1990, Mr.

Walton sought public records relating to Mr. Walton’s case and
his three co-defendants from the Pinellas County Sheriff’s
Department and the State Attorney’s Office.

The two agencies

Skipper v. South Carolina, 476 U.S. 1 (1986).
14

refused to supply the public records, arguing that Mr.
Walton’s requests were not a valid claim in a Rule 3.850
motion.

The circuit court wrongly agreed.

On May 27, 1993,

this Court relinquished jurisdiction to the trial court and
ordered it to allow Mr. Walton’s public records requests.
Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993).
From November 1993 through 1998, Mr. Walton fought for
public records in extensive and protracted litigation.

During

that time, he discovered that one crime scene technician from
the Pinellas County Sheriff’s Department maintained more than
20 public record reports in his bedroom (PC-1. at 2816).

also was revealed Detective Richard Poe of the Pinellas County
Sheriff’s office turned over public records in Mr. Walton’s
case on December 4, 1994 because he was unaware any earlier
that the files existed in the Sheriff’s Department.

This was

so even though counsel for Mr. Walton initially requested “any
and all” public records relating to Mr. Walton in November,
1990 from all law enforcement agencies in Pinellas County
(PC-1. 3112-3130).

Detective Poe testified that he did not

know these records existed until he talked to another member
of the Sheriff’s Department (PC-1. 3130).4
4

Additional records were were still being turned over to Mr. Walton from the Pinellas County
Sheriff’s office in February, 1997. As late as June 5, 1998, the Department of Corrections was still
releasing public records to Mr. Walton.
15

On June 11, 1995, Judge Downey held that “It appears that
certain documents were not supplied to CCR in its original
records request in 1990” (PC-1. 726).

Those public records

that were eventually turned over were Brady materials.

These

exculpatory and impeachment records, which were turned over
from the Pinellas County law enforcement agencies, were
handwritten notes that showed that Robin Fridella, the wife
and sister of two of the victims, made statements that
indicated that she was angry with her ex-husband over the
custody of her children and may have been involved in the
crimes.

The disclosed records showed the police interviewed

friends of Robin Fridella who told them:
Robin didn’t get along with her brother Gary
Peterson. If she couldn’t have Christopher and
Steven back, no one could have him. Told Robin
is involved with MC gang connection
(PC-1. 3928; 4256)(Exhibit 10).
Had a lot of problems with Robin over the
children. She said if she couldn’t have them,
no one would. ...Robin said she would do
anything to get the kid

(PC-1. 3929)(Exhibit 11).
The handwritten notes show that police were aware that
Robin and Steven Fridella were fighting over the custody of
the children.

One note indicated that Steve Fridella

attempted to change the joint custody status and get full
16

custody of his children (PC-1. 3931; 4260)(Exhibit 14).
The withheld information also showed that Robin once
found her husband in bed with another woman.

One witness told

police:
Steve burned her enough that she might have
something to do with it
(PC-1. 4258)(Exhibit 12).
These withheld records also showed a June 18, 1982 report
from the Pinellas County Sheriff’s Department that showed that
Robin Fridella voluntarily agreed to a polygraph exam and
results indicated that she was “not telling the entire truth”
about her knowledge of the crime and what she told
investigators (PC-1. 4254)(Exhibit 8).
Based on these new records, Mr. Walton filed a Third
Amended Motion to Vacate Judgments of Conviction and Sentence
on November 6, 1998, alleging that Mr. Walton was entitled to
an evidentiary hearing on all of his claims, including the new
and previously undisclosed public records (PC-1. 1869).

The

circuit court conducted a hearing pursuant to Huff v. State,
622 So. 2d 982 (Fla. 1993)(PC-1. 4073).

The circuit court

denied a hearing on all of Mr. Walton’s claims except one –
that the State knowingly withheld exculpatory information from
Mr. Walton, in violation of Brady (PC-1. 2051).

Mr. Walton

also sought to re-open the February 25-26, 1991 evidentiary
17

hearing by allowing the defense mental health expert, Pat
Fleming, who evaluated Mr. Walton in 1990, to testify how
these withheld materials would have affected her evaluation of
Mr. Walton (PC-1. 2068).

Mr. Walton also sought to allow the

testimony of Sidney Merin, a state witnesses who testified in
1991 that Mr. Walton did not suffer from “any particular
emotional disturbance,” as it related to Robin Fridella and
that any feelings that Mr. Walton had about her were not
converted into inappropriate behavior.

The circuit court

allowed the 1991 hearing to be re-opened.

At the re-opened

hearing, Mr. Walton presented four witnesses relating to the
withheld documents.
At the time that Mr. Walton’s hearing was taking place,
Mr. Cooper also had a post-conviction evidentiary hearing
before Judge Downey at the same time.

At Mr. Cooper’s

hearing, Mr. Van Royal was called as a witness on January 14,
2000.

Co-defendant Van Royal’s testimony conflicted with

testimony from Mr. Walton’s case.

As a result, Mr. Walton, in

his evidentiary hearing, called two witnesses who testified to
statements they obtained from Terry Van Royal, who is serving
a life sentence.
After Mr. Walton’s limited evidentiary hearing, the trial
court denied Mr. Walton all relief on January 11, 2001(PC-1.

2402-2421).

Rehearing was denied on February 5, 2001 (PC-1.

2477). A timely notice of appeal was filed on March 1, 2001
(PC-1. 2479).
This supplemental appeal only addresses issues that arose
from the withheld public records -- ineffective assistance of
counsel, Brady, conflict of interest and the newly-discovered
evidence of Mr. Van Royal’s contradictory testimony in Mr.
Cooper’s case.

Mr. Walton relies on his August 5, 1992

Initial Brief to address other remaining issues in his case.
That brief is still pending before this Court and should be
considered simultaneously by this Court.

SUMMARY OF ARGUMENT
Mr. Walton was denied the effective assistance of counsel
that led to his conviction and sentence of death.

Trial

counsel failed to adequately know the law, investigate
relevant facts, investigate Mr. Walton’s background, obtain
the presence of material witnesses, gain access to a
confidential mental health expert, combat the State's
overreaching, present the available mitigation, and insure
adequate jury instructions.
The State withheld exculpatory Brady5 information that
pertained to both the guilt and penalty phases.

The Brady

information was material to motive, Mr. Walton’s mental state
at the time of the crime, and could have provided important
impeachment evidence.

The Brady material also was important

for the penalty phase because it could have provided an
explanation for Mr. Walton’s conduct.
The circuit court erred in permitting the testimony of
Dr. Merin at the Rule 3.850 evidentiary hearing.

Dr. Merin

was the confidential mental health expert for Richard Cooper,
a co-defendant of Mr. Walton.

His testimony would not have

been allowed at Mr. Walton's sentencing, nor should it have
been allowed at the Rule 3.850 hearing.

Brady v. Maryland, 373 U.S. 83 (1963).
20

Mr. Walton was denied

the ability to confront Dr. Merin as to his conflict of
interest, in violation of Mr. Walton’s rights.
The trial court failed to consider newly-discovered
evidence of impeachment that showed that Mr. Walton was not
the mastermind behind the crime, as argued by the State
throughout Mr. Walton’s proceedings.

The newly-discovered

evidence, the testimony of co-defendant Terry Van Royal, was
unknown at the time of trial and could have been admissible at
trial for impeachment purposes.

ARGUMENT I
MR. WALTON WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS ATTORNEY FAILED TO
ADEQUATELY INVESTIGATE AND PREPARE. A FULL
ADVERSARIAL TESTING DID NOT OCCUR.
COUNSEL'S PERFORMANCE WAS DEFICIENT AND AS
A RESULT MR. WALTON'S SENTENCE OF DEATH IS
UNRELIABLE.

Trial counsel has "a duty to bring to bear such skill and
knowledge as will render the trial a reliable adversarial
testing process."

Strickland v. Washington, 466 U.S. 668, 688

(1984) (citation omitted).

“[A]n attorney does not provide

effective assistance if he fails to investigate sources of
evidence which may be helpful to the defense."

Ragsdale v.

State, 2001 WL 1241135 (Fla. Oct. 18, 2001); Davis v. Alabama,
596 F.2d 1214, 1217 (5th Cir. 1979), vacated as moot, 446 U.S.
903 (1980).

Decisions limiting investigation "must flow from

an informed judgment."
(11th Cir. 1989).

Harris v. Dugger, 874 F.2d 756, 763

“[A]n attorney has a strict duty to conduct

a reasonable investigation of a defendant’s background for
possible mitigating evidence.” Riechmann v. State, 777 So. 2d
342 (Fla. 2000)(citing Rose v. State, 675 So. 2d 567, 571
(Fla. 1996).
Reasonably effective counsel must present "an intelligent
and knowledgeable defense" on behalf of his client.
v. Beto, 421 F.2d 636, 637 (5th Cir. 1970).
22

Caraway

"[D]efense

counsel must make a significant effort, based on reasonable
investigation and logical argument, to ably present the
defendant's fate to the jury and to focus the jury on any
mitigating factors."
Cir. 1989).

Kubat v. Thieret, 867 F.2d 351, 369 (7th

An attorney is charged with knowing the law and

what constitutes relevant mitigation.
F.2d 850 (7th Cir. 1991).

Brewer v. Aiken, 935

Counsel also has a duty to ensure

that her client receives appropriate mental health assistance.
State v. Michael, 530 So. 2d 929 (Fla. 1988); Blake v. Kemp,
758 F.2d 523 (11th Cir. 1985); Mauldin v. Wainwright, 723 F.2d
799 (11th Cir. 1984).

See United States v. Fessel, 531 F.2d

1275, 1279 (5th Cir. 1979).

Defense counsel's failure to

investigate available mitigation constitutes deficient
performance.

Mitchell v. State, 595 So. 2d 938 (Fla. 1992);

State v. Lara, 581 So. 2d 1288 (Fla. 1991).
Counsel's highest duty is the duty to investigate,
prepare and present the available mitigation.

When counsel

unreasonably fails in that duty, the defendant is denied a
fair adversarial testing and the results of the proceeding are
rendered unreliable. See, Rose, 675 So. 2d at 572 (counsel
ineffective at penalty phase for failing to present evidence
of severe mental disturbance and for failing to present
evidence of defendant’s alcoholism and mistreatment as a

child); Hildwin v. Dugger, 654 So. 2d 107 (Fla.
1995)(ineffective assistance where counsel failed to present
evidence of defendant’s mental mitigation and non-statutory
mitigation); Phillips v. State, 608 So. 2d 778, 783 (Fla.
1992)(ineffective assistance of counsel where counsel
presented some evidence of mitigation, but did not present a
large amount of evidence about the defendant’s childhood
riddled with abuse); and Stevens v. State, 552 So. 2d 1082,
1087 (Fla. 1989)(counsel’s failure to investigate defendant’s
background, failure to present mitigating evidence during the
penalty phase, and failure to argue on defendant’s behalf
rendered his conduct at penalty phase ineffective). See also
Bassett v. State, 451 So. 2d 596 (Fla. 1989); State v.
Michael, 530 So. 2d 929 (Fla. 1988); Middleton v. Dugger, 849
F.2d 491 (11th Cir. 1988).

See also Thomas v. Kemp, 796 F.2d

1322, 1324 (11th Cir. 1986)(little effort to obtain mitigating
evidence); King v. Strickland, 748 F.2d 1462,1464 (11th Cir.
1984)(failure to present additional character witnesses was
not the result of a strategic decision made after reasonable
investigation); Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir.
1985)(counsel did not pursue a strategy, but "simply failed to
make the effort to investigate").
Mr. Walton's counsel failed miserably in all of these

duties.

He failed to rebut the fiction that Mr. Walton was

the leader in a premeditated plan to kill.

He failed to fully

investigate and develop crucial mitigating evidence.

tactical motive can be ascribed to an attorney whose omissions
are based on lack of knowledge, see Nero v. Blackburn, 597
F.2d 991 (5th Cir. 1979), or on the failure to properly
investigate and prepare.

See Nealy v. Cabana; Kimmelman v.

Morrison, 477 U.S. 365 (1986).

Mr. Walton's capital

conviction and sentence of death are the resulting prejudice.
Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989).
Although Mr. Walton never fired any shots, the state
sought and obtained a death sentence on the theory that Mr.
Walton masterminded the premeditated murder of three people.
This scenario was a total fiction created by the state
specifically for Mr. Walton’s trial and argued the opposite at
his co-defendant’s trial.
The prosecutor argued in co-defendant Cooper's trial that
it is "absolutely ludicrous" to say it was Mr. Walton's fault
that Mr. Cooper shot the victims and that there was no
evidence to back up this "incredible proposition" that Mr.
Walton was dominating Mr. Cooper (Cooper's Record at 1577-78).
However, Mr. Walton’s defense counsel failed to use the
readily available witnesses and arguments from the Cooper

record in Mr. Walton’s defense at resentencing.

The State's

misleading and false portrayal of Mr. Walton could have been
rebutted had defense counsel prepared his case.

There can be

no tactical or strategic reason for failure to pursue this
avenue of defense.

Trial counsel could offer no strategic reasons for not
using the court records from both the Cooper and Van Royal
cases.

Such failure to investigate and present this evidence

constituted deficient performance by trial counsel that
prejudiced Mr. Walton.

To the extent that this failure was at

all attributable to the state, Mr. Walton maintains that his
rights under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio
v. United States, 405 U.S. 150 (1972) were violated.
Aggravating circumstances specified in the statute are
exclusive, and no other circumstances may be used to aggravate
a crime for purposes of imposing death.

Yet, in closing, the

prosecutor urged the jury to consider that Mr. Walton was
heavily involved in the drug scene in determining whether he
should live or die (R2. 824-25).

The state relied on entirely

See, Smith v. Groose, 205 F. 3d 1045 (8th Cir. 2000), in
which the Eighth Circuit found that a defendant’s due process
rights were violated when the State used one of a codefendant’s two factually contradictory versions of events
surrounding murders to convict the defendant, then relied on
another version at a later trial to convict someone else of
the same murder.
26

unproven testimony -- that Mr. Walton had been arrested and
charged in the theft of marijuana.

In fact, this charge was

nolle prossed because Mr. Walton was arrested on a false
affidavit and the state did not have sufficient evidence for a
conviction.

The judge relied on this improper evidence in

sentencing Mr. Walton to death (R2. 200).

Trial counsel's

failure to object or rebut this improper evidence was
deficient performance.

Counsel should have been on notice

that the introduction of the "rap sheet" would allow the
introduction of this evidence; he failed to provide effective
assistance of counsel pursuant to Strickland v. Washington.
Mr. O’Leary testified that his introduction of Mr.
Walton’s rap sheet was not a tactical decision (PC-R. 67).

did not know that introducing the rap sheet “opened the door”
to testimony about the nolle prossed drug charge.
deficient performance.

This was

The use of such unsubstantiated,

unreliable and inflammatory testimony to bring about a death
sentence violates the "fundamental respect for humanity
underlying the eighth amendment's prohibition against cruel
and unusual punishment," Johnson v. Mississippi, 486 U.S. 578,
584 (1988), and is incompatible with the "need for reliability
in the determination that death is the appropriate
punishment," Gardner v. Florida, 430 U.S. 349, 359 (1977).

At the resentencing, the judge instructed the jury that
it should consider the aggravating circumstances that he
listed (R2. 852-53).

This error was further compounded when

the judge instructed the jury that they may consider
mitigating circumstances (R2. 858).

Defense counsel failed to

object to the erroneous jury instructions, denying Mr. Walton
effective assistance of counsel guaranteed by the sixth
amendment.
Defense counsel presented three witnesses at the
resentencing on behalf of Mr. Walton: a co-worker, a childhood
friend, and his mother.

The direct examination of co-worker,

Kimberly Ann Johnson, was approximately two pages, with one
entire page of introductory questions (R2. 747-749).

Mr.

Walton’s friend, Lynn Shamber, testified that she had known
Mr. Walton for 13 years, but did not know that he was living
with Robin Fridella or the people he hung out with (R2. 758772). Carolyn Walton testified that her son was a good child
and soldier and only smoked marijuana (R2. 774-781).

The

entire defense case took up 35 pages of transcript, with much
of that included the State’s cross examination (R2. 746-781).

Rather than effecting a coherent strategy for the use of
these witnesses, counsel questioned them vaguely and without

strategy.

An incomplete picture of Mr. Walton was presented

to the jury.

This was deficient performance that prejudiced

Mr. Walton.

Cunningham v. Zant, 928 F.2d 1006, 1016 (11th

Cir. 1991).

The witness’ testimony showed that counsel was

unprepared and ill informed about the law.

Trial counsel

barely scratched the surface of Mr. Walton’s background and
history.
At the evidentiary hearing in 1991, Mr. Walton's mother,
Carolyn, testified that Mr. Walton was the product of an
unhappy bitter marriage that ended in a divorce.

After years

of mental and emotional abuse, Carolyn asked for a divorce.
When the children were told about the divorce at dinner one
evening, it came as a complete shock to them.

This unexpected

news upset Jason and he left the table in tears (PC-R. 37172).

Jason's sister, Kimberly, also recalled the news of the

divorce as something unexpected that upset Jason very much
(PC-R. 313-14).
The divorce proceedings and child custody plans were the
source of considerable pain for both Jason and his family.
His mother made no attempt to hide the hatred she felt for
Jason’s

father, making it clear to the children that their

father was not someone to be respected.
that their mother hated their father.

The children knew
She repeatedly told

them what a bastard he was.

She told them details of the

custody fights and how she always had to fight to get their
father to pay child support (PC-R. 315).

She also told them

their father was a mean person who did not love them and that
they should not visit him (PC-R. 349).
At the time, Jason was named after his father, Irving
McCoy III, and his mother unintentionally shunned him (PC-R.
390).

This resentment was apparent to Jason's siblings (PC-R.

315).

Jason's mother pressured him to change his name from

McCoy to Walton (PC-R. 346, 355).
Carolyn's anger over her failed marriage and fear of
raising children on her own led her into a marriage of
convenience.

She discovered her ex-husband had remarried and

so she decided to do the same. She went to a meeting of
Parents Without Partners and within two weeks, met and married
a man she knew very little about.

Unfortunately, in her rush

into marriage, Carolyn failed to realize that her future
husband, Porter Gates, was both an alcoholic and a
prescription drug abuser (PC-R. 374-76).

Jason now had access

to drugs and alcohol.
Immediately after he moved into her home, Carolyn
discovered that Mr. Gates drank himself to sleep each night.
He would come home in the evening, eat dinner and then start

drinking.

After his quart of alcohol, she and Jason would put

him to bed.

Mr. Gates also abused prescription drugs.

In the

top of his unlocked bedroom closet, which was accessible to
anyone living in the house, were rows of prescription drugs,
including Valium.

Mrs. Walton was unsure what all the pills

were for, but naively felt there was no problem because they
were all prescription (PC-R. 343).
Mr. Gates was an unpleasant drunk. When he drank, he
grabbed

at women, including Carolyn’s daughters.

witnessed this behavior.

Jason

Mr. Gates also was loud and noisy

when he was drinking, and would stumble around the room (PC-R.
345, 349-50).

His drug and alcohol abuse was not confined to

prescription drugs.
vacation to Miami.

On one occasion, he took Jason on a
This vacation was nothing more than a big

party. He encouraged Jason to drink and smoke pot and gave
Jason the keys to the car, even though Jason was under the
legal driving age at the time and had no license (PC-R. 31618).
This marriage ended suddenly. One evening, Mr. Gates sat
in his favorite chair in the family room, drunk as usual.
was eating a steak dinner and choked on a piece of meat.

He
Kim

and Jason were in the room, but neither of them knew what to
do.

Kim attempted to stick her hand down the back of Mr.

Gates throat.
ambulance.

When this did not work, she called an

Unfortunately, the street they lived on at the

time was under construction, so it took numerous phone calls
to get the ambulance to the right address. During this time,
Mr. Gates lay on the floor unconscious.
unable to be of any help.

Jason and Kim were

Mr. Gates never regained

consciousness and died eight days later (PC-R. 318-19).
Witnessing Mr. Gates' death had a profound effect upon
Jason.

After seeing Mr. Gates choke to death, Jason's drug

use escalated. Because of his drug use, Jason was admitted
into a radical therapy program known as SEED.

Though this

experimental program in no way cured Mr. Walton of his drug
addiction, it had a negative effect on his life that he would
feel for many years.

Mr. Walton’s family members were aware

of this program and testified about the effect it had on him.
His sister Kim also went through the program and had firsthand knowledge of how it worked.
A family who lived down the street from the Waltons
placed their children into the same drug rehabilitation
program.

The parents told Carolyn that Jason was into drugs

and he needed to go through this rehabilitation program as
well.

Kimberly then confessed that she, too, was taking drugs

and needed to go into the program.

Both Jason and Kimberly

entered the SEED program (PC-R. 320).
Inside the program, they were not permitted contact with
each other.

Each individual brought a small suitcase

containing only the items the program organizers felt were
necessary.
searched.

Upon arrival, each suitcase was thoroughly
Then, the new arrival was assigned to the custody

of another child in the program of the same sex.

This was the

person the individual would go home with at night.
the children were locked into their bedrooms.

At night,

Jason's sister

recalled that the girl she was staying with actually put a
dresser in front of the bedroom door and took the handles off
of the window so she could not escape (PC-R. 321).

There was

no intermingling between the girls and boys during the day.
Each person was known only by their first name and the object
of the program was to break the child down and take away their
defenses.

The instructors told the children how rotten they

were and then tried to build them up into their idea of a
model child.

The children were not allowed to become friends

with others in the group, and were assigned to the custody of
a new child each week.

They also were not allowed to see

their reflections in a mirror, or brush their hair or teeth
(Id.).
On Friday nights, family members were allowed to visit.

The children would sit on one side of the room and the parents
would sit on the other side.

The newest members had to stand

up in front of both groups and say their name, how long they
had been in the program, and what drugs they had done.

The

parents would then stand up and say hello to their children
and the children and parents could talk small talk across the
room with everyone listening.

When a child had been in the

program and was improving, according to their counselor, they
could have semi-private meetings with their parents, which
were monitored by a counselor.

If the child began to talk too

much about the program, the counselor would tell them to
change the subject.

Eventually, the children were allowed to

go to their own homes at night to sleep, but had to return to
the center during the day until such time as the counselors
felt they could be released from the program (PC-R. 322).
Neither of Jason's parents were allowed much contact with
him or the program.

Anytime Carolyn asked questions, the

program organizers told her "those" things were not to he
discussed and should be kept in the SEED.
was a secret organization (PC-R. 381).

She felt as if it

When Jason's father

discovered that Jason had been put in this program, he tried
to make contact but was told he could not talk to his son.
then asked the program organizers if he could participate in

any way and was told he could not.

This angered Mr. McCoy,

who felt like he should have input in such a critical program
in his son’s life.

When he told the organizers he was going

to come anyway, he was told he would be removed from the
premises if he showed up (PC-R. 295).
Jason's mother was unaware of Jason's drug use until the
neighbors told her about it.

When she asked Jason if the

allegations were true, he admitted it.

She thought he was

only using marijuana at that time, and even then was unaware
of the extent of his drug u se (PC-R. 380).

But when it was

Jason's turn to stand up during the SEED meeting and confess
to the drugs he had used, he confessed to much more than just
marijuana.

Kim recalled that Jason said he used alcohol, pot,

hash, PCP and Angel Dust (PC-R. 323).
Even when Jason and Kim were released from the SEED
program, they did not talk about it (PC-R. 381).

They were

closely monitored, even after they were out of the program.
Jason's other sister, Lydia, recalled that Jason seemed like a
robot after he returned.

He was instructed not to talk to any

of his friends that he had before the program (PC-R. 351-52).
Jason and Kim were in the SEED program during the summer
and school year.

Kim was in the program five to six months

and Jason was in it for an even longer period of time.

Jason

missed a lot of school as a result of this program.

Because

he was not a good student to begin with, he had trouble
catching up, and was held back in school (PC-R. 324-253, 382).
Jason finally dropped out of school in eleventh grade before
he received his diploma, and joined the Army (PC-R. 382).
While in the Army, his drug use escalated.

When he was

honorably discharged, he returned home and his drug use
continued.

In the six months before his arrest, he smoked

marijuana daily, before and after work, and snorted cocaine
three to four times a week.

His drug of choice was LSD, which

he used 20 to 30 times in a four-five month time period (PC-R.
20, 31-32, 35-36).

Dr. Sidney Merin, the mental health expert

called by the state at the evidentiary hearing, conceded that
Mr. Walton had a substantial history of drug and alcohol abuse
(PC-R. 494).7

Jason also smoked marijuana and drank beer on

the evening of the homicides (PC-R. 192-93).
Even though Mr. Walton was addicted to drugs and alcohol

Even the State expert, Dr. Merin, conceded the existence of
mitigating evidence, which was not presented at the penalty
phase. See also, Ragsdale v. State, 2001 WL 1241135 (Fla.
Oct. 18, 2001)(“Dr. Merin offered no opinion as to the
applicability of the statutory mental mitigators. Dr. Merin
did, however, testify as to the existence of mitigating
evidence which was not presented at the penalty phase of
Ragsdale’s trial.....Thus, the conclusion is inescapable that
there was available evidence from experts which would have
supported substantial mitigation, but which was not presented
during the penalty phase”).
36

from a young age, he was never known to be violent to family
or friends (PC-R. 46, 250, 296-97).

Those who knew him

thought he was a coward and a person who would not fight or
harm others (PC-R. 46, 395).

He was known as good person who

would do anything for a friend if he was able (PC-R. 18).

also was known as a person who was advanced in art (PC-R. 435,
477).
Mr. Jenkins was a friend of Mr. Walton who testified in
the 1984 trial that he heard Mr. Walton say before the offense
that he must "waste" one of the murder victims.

In spite of

trial counsel's efforts to have him served in order to testify
in 1986, authorities did not bring him under subpoena.

Mr.

Jenkins testified during post-conviction that he was living in
the same place in 1986, was willing to testify (PC-R. 22-23),
and that a member of the Fort Pierce’s Public Defender's
office found him in 1989 (PC-R. 23-24).

Had he testified, he

would have said that he did not understand "waste" to mean
kill (PC-R. 20-22, 27, 45).

He also would have testified to

Mr. Walton's extensive drug and alcohol use (PC-R. 19, 36-37,
39).
At the 1991 evidentiary hearing, Mr. O’Leary testified
that he was unaware of Mr. Walton’s background and had he
known of Mr. Walton's dysfunctional family experience, his

childhood drug use, his SEED placement, he would have used the
information at the resentencing. (PC-R. 55-57, 78-79).

He had

no strategic or tactical reason for not contacting family
members about this type of mitigation and there was no reason
for his failing to ask the family members he did contact about
these subjects (PC-R. 129).
Mr. O’Leary testified that Mr. Walton’s sisters “did not
seek me out,” and he made no effort to contact them (PC-R. 58;
125).
He recalled Mr. Walton's father seeking him out during
the penalty phase (PC-R. 58), but he failed to consider Mr.
McCoy as a mitigation witness.

He was only aware of one

stepfather in Mr. Walton's life (PC-R. 125). Trial counsel
overlooked references to many of these matters in the 1984
PSI, which he had in his possession (PC-R. 127).8
Mr. O’Leary failed to obtain any of Mr. Walton’s school
records (PC-R. 76); failed to investigate whether Mr. Walton
suffered from any head injuries or was involved in any car

The United States Supreme Court found that counsel’s
failure to investigate a defendant’s background in preparation
for the penalty phase of a capital trial was ineffective
assistance of counsel, even when counsel presented an
alternative argument, highlighting the defendant’s remorse and
cooperation with police. Williams v. Taylor, 529 U.S. 362, 396
(2000)(citing 1 ABA Standards for Criminal Justice 4-4.1,
commentary, p. 4-44 (2d ed 1980)).
38

accidents (PC-R. 77); and failed to inquire if Mr. Walton was
seen a mental health expert or psychiatrist earlier in his
life (PC-R. 77).

The majority of the information Mr. O’Leary

learned about his client came from Mr. Walton and his mother,
Carolyn (PC-R. 77).9
Mr. O’Leary testified that his knowledge of Mr. Walton’s
drug use came from Mr. Walton himself.

He said he knew that

Mr. Walton smoked marijuana and drank beer.

“...the picture

I got was that’s just what young boys, his peers in Marion
County do on

weekends, I guess” (PC-R. 128).

He said he

never heard the word “addiction” from Mr. Walton or his mother
(PC-R. 129).
Further, Mr. O’Leary testified that there was no tactical
or strategic reason for failing to use a confidential defense
mental health expert, in spite of Mr. Walton's extreme and
unusual anxiety at the time of the trial (PC-R. 79-81, 84-85).
This was his first capital case as a defense lawyer (PC-R.

In granting relief on a claim of ineffective assistance of
counsel for failure to investigate, the Seventh Circuit Court
of Appeals said, “Telling a client, who is in custody awaiting
trial, to produce his own witnesses falls painfully short of
conducting a reasonable investigation, especially given that
[the witnesses] did not have a telephone. Perhaps Washington
could have dispatched a pigeon from his prison cell with a
message for the Browns, but short of this, it is wholly
unreasonable for a lawyer to instruct his incarcerated client
to get in touch with people who don’t have a phone.”
Washington v. Smith, 219 F. 3d 620, 631 (7th Cir. 2000).
39

52).

He said:
Q. (By Mr. McClain)
phase?

Is hearsay admissible in a penalty

No.

That's your understanding?

Yes.

Q. Okay. Is or would that be the reason why you would
not have considered actually -- actually you indicated
you didn't think of contacting the prison for prison
records?
A.

Correct.

(PC-R. 120).

Trial counsel testified there was no reason why

he did not seek Department of Corrections records on Mr.
Walton from 1984, the year of his first conviction, through
his 1986 penalty phase, which reflected his good conduct while
in custody (PC-R. 71-72, 121).

Likewise, there was no

tactical or strategic reason for his failure to use the 1984
PSI that showed the avoiding lawful arrest aggravating factor
was not present (PC-R. 73-75).
Mr. O’Leary testified that he realized the significance
of witness Bruce Jenkins’ 1984 testimony that Mr. Walton said
he must "waste" one of the victims, and that he needed to use
Mr. Jenkins to explain that the word did not mean kill, but
that law enforcement told him they could not locate Mr.
Jenkins to serve him (PC-R. 60-61, 75-76).

Trial counsel felt

it was important for Mr. Walton's 1986 jury to hear Mr.
Jenkins testify that he did not understand "waste" to mean
kill in the context of the conversation (PC-R. 116-18).

When

he was told that this man could not be found, Mr. O’Leary said
he had no reason to believe that he was being misled (PC-R.
60).10
Finally, trial counsel testified that had he known
introducing Mr. Walton's rap sheet as evidence of lack of
prior convictions would have opened the door for state
evidence of collateral misconduct (See R2. 782-94) he would
not have done so (PC-R. 66-70).
door to the state,

To the extent he opened the

it was not a reasonable tactical or

strategic decision but ignorance of the law (PC-R. 67).
Mr. O’Leary made no attempt to obtain or present Mr.
Walton's prison records at the resentencing because it never
occurred to him (PC-R. 120-21).

Had he obtained these records

At the 1991 evidentiary hearing, Mr. Jenkins testified that
he and Mr. Walton were partying, smoking and drinking when Mr.
Walton mentioned the word “waste.” In the context of how it
was said, Mr. Jenkins testified that he never took that word
to mean that Mr. Walton was going to kill anyone. “I knew he
had trouble with these guys, you know. And we talked about it
a couple of times, but you know, I knew he was – he might
consider, you know, doing the same thing to them as they were
doing to him....They were stealing stuff from him. They’d go
in his house when he was gone. They’d hound him every chance
they got.” He testified that he never expected Mr. Walton to
kill anyone (PC-R. 21-22).
41

and spoken with the guards at the prison, he would have
discovered that Mr. Walton was a model inmate who never
received any disciplinary reports while on death row (PC-R.
10-11).
Mr. Walton's also received an oral death sentence at the
sentencing hearing on August 14, 1986.

One month later, on

September 18, 1986, this Court decided Van Royal v. State, 497
So. 2d 625 (Fla. 1986), which reduced the death sentence of
co-perpetrator Terry Van Royal, who was a shooter, to life.
The prosecutor made note of this in his Additional Sentencing
Memorandum, filed October 1, 1986 (R2. 163-64).

The trial

court did not issue its Court's Findings as to Aggravating and
Mitigating Circumstances in support of the death penalty until
October 16, 1986 (R2. 196-201).

Mr. O’Leary testified that he

had no tactical reason for failing to raise this argument
about disparate treatment(PC-R. 82-82).
Trial counsel further neglected to obtain the services of
a confidential mental health expert.

There was no tactical or

strategic reason for this failure (PC-R. 79-81, 84-85).

Had

defense counsel retained a competent mental health expert who
he provided background materials relevant to Mr. Walton,
substantial mental health mitigation would have been
identified.

Background materials were easily accessible to

Mr. Walton's defense counsel or could have been easily
obtained had even a preliminary

investigation been completed.

Having evaluated Mr. Walton and studied his background, a
mental health expert would have been able to testify at an
evidentiary hearing to the existence of an abundance of nonstatutory mitigation, such as Mr. Walton's caring nature, his
non-violent nature, and his long history of drug and alcohol
abuse.
Expert testimony was available had counsel simply sought
it out.

In post-conviction, Dr. Pat Fleming conducted

neuropsychological and psychological tests on Mr. Walton.

She

was given background materials on him and interviewed family
members and others who knew Mr. Walton.
At the 1991 evidentiary hearing, Dr. Fleming testified
that the Walton family appeared stable on the outside, but in
reality, was not stable at all.

Mrs. Walton was gone a great

deal, and while on the surface she appeared to be a caring
mother, in fact, she was not the primary mother caretaker, the
eldest sister was.
Dr. Fleming learned that while married to Mr. Walton’s
father, Mrs. Walton was involved in numerous affairs. She
asked for a divorce when Jason was 12, which was traumatic to
him.

Dr. Fleming described Mrs. Walton as a “dad basher,” who

told her children that their real father not only did not care
about them, but abandoned them.

Dr. Fleming described this as

significant in Mr. Walton’s overall development (PC-R. at 161162).
Dr. Fleming testified that the eldest sister was aware of
the mother’s extramarital affairs and the mother spoke to her
explicitly about sexual matters.

The eldest sister felt as if

she was the mother.
Mrs. Walton was unaware the impact her lifestyle had on
Jason and had no insight into her own behavior.
unaware of his drug and alcohol abuse.

She was

She did not know that

her second husband, Porter Gates, was an alcoholic and
prescription drug abuser until later in the relationship.

She

knew he was an alcoholic, but did not realize he was providing
drugs and alcohol to Jason.

She also did not know that Mr.

Gates was making sexual advances toward her daughter.

“She

was described as self-centered, egocentric woman who just did
her own thing.

And as Mr. Walton said that after the divorce

at 12 she had to do her own thing.
gone a great deal.

She found herself and was

The children were – were alone a lot” (PC-

R. 164-165).
Dr. Fleming testified that Jason’s life fell apart when
he was 12.

His father left.

His mother made him change his

name. His mother had to find work outside the home, and Lydia,
his eldest sister, assumed more responsibility.

On his

twelfth birthday, a neighbor gave Jason marijuana, which
started his drug and alcohol abuse.
within six months.

Mrs. Walton married again

The stepfather supplied Jason with alcohol

and access to drugs.

While he was not physically abusive, he

had an alcohol problem.

The weekend before he died, he gave

Jason a credit card and the car keys and told him to do what
he wanted.

Dr. Fleming said there was a permissiveness about

the family (PC-R 172).
Dr. Fleming called Mr. Gates’ death significant in
Jason’s life:
A Well, the stepfather's death just in a
way is significant but Mr. Walton is sitting there
with him. The significant part is that the younger
sister was there and it was she that tried to get
the meat out, call 911, and Mr. Walton just -- just
didn't react. He was unable to function in that
stressful situation. They couldn't find the police.
They couldn't find the ambulance and they were
frantically trying to do this, and he just simply
didn't participate. He just said he was unable to.
He just kind of watched it all. I found that
typical of his behavior in times of stress when he
just -- he goes over and he just kind of checks out.

(PC-R. 172-176).
At age 12, Jason began using alcohol and marijuana.

graduated to heroin when he was in the Army in Germany. He
used, injected and snorted every known drug. Up until the time
45

of the crime, he used marijuana on a regular basis, three
times a day.

He drank beer and whiskey.

choice was LSD. (PC-R. 175).

But his drug of

Dr. Fleming testified that the

drugs “significantly disrupted his lifestyle” (PC-R. 175).
Dr. Fleming said that even when Jason was in the SEED
Program when he was 16, he was off drugs for that period of
time, but started drugs again when he was released (PC-R. at
176).
Dr. Fleming noted numerous "red flags" should have
alerted trial counsel to the need for mental health testing.
Mr. Walton suffered numerous head injuries before the
homicide: he fell from a tree; had two bicycle accidents, one
of which caused unconsciousness, and was in a serious car
accident. (PC-R. 149).

Mr. Walton also suffered from a

collapsed lung on two occasions.

The fact that Mr. Walton had

been in drug rehabilitation and had been administered
psychoactive medicine while in jail was an indication of drug
problems that needed to be investigated further (PC-R. 151).
Dr. Fleming said that records that showed that Mr. Walton had
been to a psychologist or psychiatrist while in high school
indicate that there might have been mental health problems
(PC-R. 151).
Dr. Fleming also looked at school records and found that

Mr. Walton was an average student for his first six years of
school, but his grades began to drop in junior high and
finally, in high school, he dropped out completely (PC-R.
152).
Dr. Fleming testified that she found two statutory
mitigating factors: the defendant acted under the influence of
extreme mental disturbance and the capacity of the defendant
to conform his conduct to the requirements of the law was
substantially impaired.

She also testified to many non-

statutory mitigating factors, including: his mother was
distant and unemotional towards him; his parents had a messy
divorce when he was twelve; his stepfather gave him alcohol
and drugs; his stepfather died in front of him; he started
abusing drugs and alcohol at an early age; and he suffered
from severe drug and alcohol abuse throughout his life (PC-R.
283-84).
In October 1999, Dr. Fleming was contacted again and
given the withheld public record information turned over by
the State to determine if it was important to better
understand Mr. Walton and if it was relevant to her initial
evaluation and testimony (PC-1. 4116-4117).
In 1999, in addition to reviewing her notes and reports
from 1990, she also conducted telephone interviews with Julia

Walsh and Teresa Napp, friends of Robin Fridella; Mr. Walton’s
sister, Kim Fox; Caroline Walton, Mr. Walton’s mother, and
Lydia Horn, Mr. Walton’s sister.

Because Dr. Fleming was in

Wyoming and unavailable to physically reevaluate Mr. Walton in
Florida, she conducted telephone interviews with Dr. Faye
Sultan, a clinical psychologist, who was able to evaluate Mr.
Walton in person (PC-1. 4118-4119).
At the 1999 evidentiary hearing, Dr. Fleming testified
that withheld information was “critical” and would have
impacted on her evaluation.

The withheld materials filled in

the missing blanks from her 1990 evaluation. For example, Dr.
Fleming explained that the crime was inconsistent with Mr.
Walton’s previous history and non-violent behavior.

In 1990,

Mr. Walton was unable to provide her with information about
his mother’s abandonment and his relationship with Robin
Fridella.
The withheld information, according to Dr. Fleming,
identified significant facts that affected Mr. Walton in his
relationships and personal responsibility.

Dr. Fleming

described Mr. Walton’s severe dysfunction that came from the
psychological abandonment of both parents and an early
addiction to alcohol and drugs that continued until his
incarceration. Mr. Walton had a history of avoidance of close

personal relationships because of his fear of criticism and
rejection.

He had low esteem and a poor self image (PC-1.

4122).
Based on the new information she reviewed in 1999, Dr.
Fleming testified that Mr. Walton was a prime candidate to be
controlled and manipulated by Robin Fridella.

Based on

interviews she conducted, Dr. Fleming said that Robin selected
Jason when they were associated with the same group of
friends.

Mr. Walton felt tall, skinny and undesirable.

Fridella was outgoing and aggressive.
passive.

Robin

Mr. Walton was shy and

Robin filled his need for love while he filled her

needs for drugs.

After Gary Peterson, Robin’s brother, stole

drugs from Mr. Walton, Robin told Jason that Gary was going to
get a new shipment of marijuana and that Jason could get it
back.

Mr. Walton has repeatedly denied that he planned a

murder (PC-1 4142).
Dr. Fleming testified that the withheld information,
including the results of a deceptive polygraph of Robin
Fridella and a domestic violence report between Steven and
Robin Fridella, provided new insight into the role of Robin in
this crime.
Dr. Fleming testified that Mr. Walton met Robin Fridella
after he was released from the service in 1980.

She told Mr.

Walton that she was divorced from Steve Fridella, but it was
not until later that he learned that she lied and was not
divorced.
the crime.
together.

The couple lived together for three months before
But at the time of the crime, they were not living
According to the evaluations conducted by Dr.

Sultan, Robin did not talk about her children with Mr. Walton
and appeared to have a separate life away from him.

The

experts learned that when Robin Fridella and Mr. Walton were
not living together, Robin would bring her children to Mr.
Walton’s house for him to babysit while she went out with
other men.

Robin Fridella did everything she could to keep

her husband from the children.

Robin was controlling and

became enraged at Steven Fridella if he withdrew from her and
did not act according to her wishes.

Dr. Fleming found that

her threats about children appeared to be control issues about
Steve Fridella, rather than genuine concern about her children
(PC-1. 4132).
Dr. Fleming testified she reviewed a civil trespass
incident that occurred between Robin and Steven Fridella.
Robin was enraged by Steven’s unfaithfulness, even though the
couple was separated and in the process of a divorce.
Dr. Fleming also found Robin’s polygraph exam was
important information that would have impacted on her

evaluation and opinion of Mr. Walton.

The author’s report

indicated that Robin was deceptive. This deception raised
questions about her involvement in the crime that was never
investigated.

It also went to Mr. Walton’s motivation and

mental state at the time of the crime.

On cross examination,

the State asked Dr. Fleming if she was aware that the
polygraphist more than ten years later changed his opinion
about Robin Fridella’s deception.

She said she was not aware

of it, but it did not make a difference because Robin had a
history of deception and was not simply deceptive in one area,
but in many areas (PC-1. 4156).
Dr. Fleming testified that based on the withheld
materials, Mr. Walton’s behavior and personality before the
crime was not violent nor aggressive.

Based on Dr. Sultan’s

evaluation, Dr. Fleming found Mr. Walton a self-doubting man
with poor self image controlled and manipulated by Robin
Fridella.

His significant alcohol and drug addiction began

when he was 12.

He was not given the love and attention

during his developmental years.

He was vulnerable and chose

unwisely with little awareness of the problems of his
relationship with Robin Fridella.
She testified that Mr. Walton was “obsessed” with Robin
Fridella (PC-1. 4122), “Mr. Walton has a long history of low

self-esteem and isolation and was a shy man, shy as a child”
(PC-1. 4122).

His involvement with Robin Fridella as an

“important happening in his life.” Id.
Dr. Fleming also reported that based on her interviews in
addition to the withheld documents showed that Robin Fridella
was an angry woman who threatened that if she could not have
her children, no one could (PC-1. 4132).

Although Robin’s

statements appeared to be about caring for her children, her
behavior indicated that she had difficulty maintaining the
love and stability that the children needed.
Dr. Fleming testified that although some of the facts of
Mr. Walton’s traumatic background and drug and alcohol
problems were raised during previous hearings, there was
insufficient information available in 1991 to tie this
behavior into the dysfunctional relationship between Mr.
Walton and Robin Fridella.

Because of the lack of

information, Robin Fridella’s relationship with Mr. Walton and
her motivation to manipulate and control Mr. Walton was never
explored in depth.

The withheld information showed Dr.

Fleming that Mr. Walton and Robin had a much closer
relationship than she knew about initially (PC-1. 4120; 4140).
Dr. Fleming said that the State painted a picture of Mr.
Walton as a very controlling and aggressive man (PC-1. 4141),

but the withheld information rebutted that argument and
explained the effect that Mrs. Walton’s abandonment had on
Jason, why he was a passive follower and that Robin was a
controller and “...she was an angry woman” (PC-1. 4141).
Dr. Fleming testified that while her initial interview of
Mr. Walton in 1990 was accurate, it was incomplete (PC-1.
4135).

At that time, she simply viewed Robin Fridella as a

girlfriend and she did not realize the control she exercised
over Mr. Walton.

In 1991, Mr. Walton was unaware that his

mother’s neglect and Robin’s manipulation went hand in hand to
move his behavior at the time of the crime. Had the withheld
information been available in 1990, Dr. Fleming said it would
have opened a new line of questioning and examination.

Had

this information been available to her, she would have urged
Mr. Walton’s attorneys to investigate Robin Fridella’s
background and dominance over Mr. Walton (PC-1. 4134; 4156).
Dr. Faye Sultan, a clinical psychologist, testified that
she
was asked to evaluate Mr. Walton at Union Correctional
Institution because Dr. Fleming was physically unable to do
so.11 She saw Mr. Walton for eight hours on November 16-17,

No record citations are included here because Dr. Sultan’s
testimony has not been transcribed. Mr. Walton has requested
that the record on appeal be supplemented with this testimony.
53

1999. She reviewed background materials on Mr. Walton,
including the withheld information that was only recently
turned over to the defense.
testing data from 1990.

She also reviewed Dr. Fleming’s

All this information served as the

basis for her opinion and that opinion was given to Dr.
Fleming in several telephone conversations.
Dr. Sultan opinion was consistent with Dr. Fleming’s
findings. She found that Mr. Walton was the product of a
highly dysfunctional, chaotic and neglectful family life.

His

father, Irving Johnson McCoy, Jr. was abusive to his wife and
neglected his children.
or warmth.

He was remote and showed no affection

Caroline McCoy, Mr. Walton’s mother, also was

neglectful and emotionally unavailable to her son.
was left without parental guidance or support.

Mr. Walton

His mother

often was absent from the home and Mrs. Walton’s eldest
sister, Lydia, was his caretaker.
Dr. Sultan testified that because he was abandoned by his
parents, Mr. Walton perceived himself to be inadequate and
inferior.

He was shy and introverted.

He had low self-

este4em and saw himself as unappealing and undesirable.

never could understand why any woman would find him

Mr. Walton relies on the affidavit written by Dr. Sultan and
submitted into evidence (PC-1. 2164-2169).
54

attractive.

Dr. Sultan testified that these personality

traits persisted into adulthood.

Mr. Walton was dependent and

passive in relationships, easily manipulated, susceptible to
control by others and desperate for attention and approval.
Mr. Walton also was seriously involved in substance abuse.

the age of 12 or 13, Mr. Walton was a regular abuser of
alcohol, marijuana and other illegal substances.

After

joining the Army at age 17, Mr. Walton continued his drug use.
He injected heroin and used LSD, marijuana, alcohol,
amphetamines, cocaine, hash and psychedelic mushrooms.

Mr.

Walton was able to perform in the Army while he was
intoxicated because his job was routine and repetitive.
Dr. Sultan found that the quantity and type of drugs Mr.
Walton used in the days and weeks leading to his arrest kept
him in a chronic, inebriated state. He typically smoked six
marijuana joints and drank 12 beers each day.

He worked at

Pall Neumatics in Ocala, a company that provided him with
routine and repetitive work.

Mr. Walton also drank a liter of

bourbon on the weekends and took hallucinogens when he could
buy them.

Dr. Sultan diagnosed Mr. Walton as having

polysubstance dependence with physiological dependence.
Based on the neuropsychological tests performed by Dr.
Fleming in 1990, Dr. Sultan said Mr. Walton’s sustained drug

abuse resulted in symptoms consistent with an organic
personality disorder.

He showed difficulty with tasks

requiring the ability to sustain attention and concentration.
Any performance that required abstract and conceptual thinking
was impaired.
Dr. Sultan testified that Robin Fridella initiated the
relationship with Mr. Walton and completely controlled its
course.

Robin Fridella told Mr. Walton when he was allowed to

spend time with her and when he needed to stay away.

She lied

to him about her marital status and at first, hid from him the
fact that she had two children.

Mr. Walton wanted so much to

maintain a relationship with Robin Fridella that despite her
frequent episodes of infidelity, he ignored any indication
that she was dishonest and just using him to supply her with
drugs.12 Even after he was arrested and realized that Robin
Fridella was responsible for his arrest, Mr. Walton continued
to express his need, desperation, love and devotion in his
many letters to her.

He remained very dependent on her and

Counsel recalls that Judge Downey asked Dr. Sultan whether
she was aware that the polygraphist who gave Robin Fridella a
polygraph exam changed his opinion years after the fact. Dr.
Sultan said she was aware of it, but it was irrelevant because
Robin Fridella was deceptive in so many other areas – lying
about her marital status and the fact that she had children.
Dr. Sultan said she was unpersuaded by the polygraphist’s
change of opinion. Counsel requested that the transcript of
this testimony be transcribed.
56

was unable to imagine life without her.

This relates directly

to abandonment issues from his childhood.
Dr. Sultan testified that Mr. Walton did not fit the
anti-social label. Those with anti-social disorders are unable
to form relationships and bonds with people.

Dr. Sultan

testified that Mr. Walton has long-term relationships with
friends and lawyers. He was not aggressive, not a planner and
not violent.

Dr. Sultan found Mr. Walton to be a leader and

not a follower.
Sidney Merin, a licensed psychologist who evaluated Mr.
Walton for the State in 1990, testified that the withheld
materials would have had no impact whatsoever on his
evaluation. Dr. Merin did not re-evaluate Mr. Walton in light
of the withheld materials.

He did not interview or speak to

anyone about the relationship between Mr. Walton and Robin
Fridella.

Dr. Merin did nothing to reassess his earlier

opinion of Mr. Walton (PC-1. 4158-4185).
Instead of relying on the mental health experts who were
completely familiar with Mr. Walton’s background and
witnesses, the trial court adopted the opinion of State
expert, Dr. Merin (PC-1. 2410-2411). Dr. Merin was the only
expert who had not spoken with any of the witnesses or
evaluated Mr. Walton as doctors Sultan and Fleming.

He was

the only witness who testified that this information would not
have affected his opinion.

In sum, Dr. Merin’s opinion was

completely devoid of corroboration.

To rely on his opinion in

this case is contrary to the weight of the evidence adduced at
the evidentiary hearing.

In 1999, Mr. O’Leary testified

that the withheld material was not made available to him at
trial and was Brady (PC-1. 3949), but he would not have sought
additional investigation based on the material.

Mr. O’Leary

testified that the withheld information would not have given
him reason to attack the aggravating factors presented by the
State. He also said he would not use the information to
investigate possible mitigating evidence (PC-1. 3912-3951).13
At trial, the State argued and the judge found the
aggravating factors that (1) the murders were committed during
the commission of a robbery and burglary; (2) the murders were
committed for pecuniary gain; (3) the murders were committed
in an especially heinous, atrocious or cruel fashion; (4) the
murders were committed in a cold, calculated and premeditated
manner; and (5) the murders were committed for the purpose of
avoiding a lawful arrest.
circumstances.

The trial court found no mitigating

Walton v. State, 547 So. 2d 622, 624 (Fla.

Mr. O’Leary’s 1999 testimony is incomplete and inaccurate.
Undersigned counsel has sought to have the court reporter
review her notes to determine the accuracy of the transcript.
58

1989).
Mr. O’Leary testified that the withheld information was
inconsistent with his theory of defense (PC-1. 3933).

When

asked what his theory of defense was, he responded that it was
a planned robbery gone bad (PC-1. 3930) and that this
information had no relevance.

He said he would not have

bothered to investigate the information and found it
“insulting” to the jury to argue in mitigation that Mr. Walton
may have been blinded by love or controlled by a woman (PC-1.
3949-3951).
This statement demonstrates ineffectiveness of counsel of
the most basic kind.

Mr. O’Leary clearly did not understand

that Robin Fridella’s statements could have been mitigating to
Mr. Walton.

Mr. O’Leary said that her statements were

contrary to his theory of defense.

However, by the time the

penalty phase has arrived, Mr. O’Leary’s theory was already
lost.

He had no theory going into the penalty phase.

The

defense theory that Mr. Walton was just an accomplice had
already been rejected by the jury in the guilt phase.

continue to use that as an excuse for not using the Fridella
information was disingenuous.14

It must be remembered that Mr. O’Leary also did not use the
fact that the State had argued an inconsistent theory in the
Cooper and Van Royal trials and did not use that fact as a
59

Contrary to Mr. O’Leary’s and the trial court’s opinion,
Robin Fridella’s statements would have been admissible in
penalty phase.

They could have come in through mental health

experts who said these statements were valuable to their
opinions and relied on them to form their opinions. The trial
court ignored the testimony of the only mental health experts
who had evaluated Mr. Walton and reviewed the materials.
This withheld information could have been effective in
both guilt and penalty phases to explain the alleged robbery,
why Mr. Walton was so devoted to Robin Fridella that he would
have done anything to be with her. This information would have
opened the door to further investigation into Mr. Walton’s
background and relationships, but trial counsel did not know
how to use it.
Mr. O’Leary’s statement that he would not have conducted
further investigation based on this information illustrates
his lack of understanding of capital trial litigation.

See,

Strickland v. Washington, 466 U.S. 688 (1984) and Williams v.
Taylor, 120 S. Ct. 1495 (2000)(counsel was ineffective for
failing to adequately investigate and present mitigating
evidence and the defendant was prejudiced by counsel’s
ineffectiveness).

mitigating factor.
60

“[A]n attorney does not provide effective assistance if
he fails to investigate sources of evidence which may be
helpful to the defense.” Davis v. Alabama, 596 F. 2d 1214,
1217 (5th Cir. 1979), vacated as moot, 466 U.S. 903 (1980); see
also Goodwin v. Balkcom, 684 F. 2d 794, 805 (11th Cir. 1982),
cert. denied, 460 U.S. 1098 (1983)(“At the heart of effective
representation is the independent duty to investigate and
prepare”).
Substantial and compelling mitigating evidence was easily
available and accessible to trial counsel, but was not
investigated and prepared for presentation to either the jury
or the judge.

As a result, Mr. Walton was sentenced to death

by a judge and jury who heard none of the available mitigation
that was essential to an individualized capital sentencing
determination.

Lee v. United States, 939 F.2d 503 (7th Cir.

1991); Kubat v. Thieret.

Here, as in Jones v. Thigpen,

"[d]efense counsel neglected [and] ignored critical matters of
mitigation at the point when the jury was to decide whether to
sentence [James Walton] to death," 788 F.2d 1101, 1103 (5th
Cir. 1986).

See also Brewer v. Aiken.

The following non-statutory mitigating factors, each of
which has been separately found by a Florida court to be
mitigating evidence in a capital case, were available to be

presented to Mr. Walton's judge and jury for consideration:
1)
2)
3)

Disparate sentence with accomplices
Relative involvement
Questions regarding roles of defendant and
codefendant.
4) Drug abuse problem
5) Under the influence of drugs at the time of the
crime
6) Drinking the night the homicide was committed
7) Had seen psychologist concerning drug and
emotional problems
8) Was gainfully employed
9) Co-workers thought highly of him
10) Grew up without father, raised by absentee
mother
11) Difficult early childhood
12) Emotional disturbance due to divorce
13) Childhood trauma
14) Character as testified to by members of his
family
15) Good son and brother
16) Family loves him
17) Positive traits, rehabilitation potential
18) Friendly, helpful, good with animals and
children before offense
19) Not known, prior to this case, to be a violent
person
20) Defendant's behavior at resentencing
21) No disciplinary reports while on death row
22) Adjusted well to life imprisonment
23) Honorable discharge from the military
24) Capable of kindness
25) Difficulty in dealing with stress conditions
26) Impulsive person with memory problems and
impaired social judgment
27) The non-applicability of the aggravating
circumstances not found
28) Developed and cultivated artistic talents
This list illustrates the tremendous amount of nonstatutory mitigation available to defense counsel.

“The

[sentencer] must be able to consider and give effect to any

mitigating evidence relevant to a criminal defendant's
background, character, or the circumstances of the crime."
Penry v. Lynaugh, 109 S. Ct. 2934, 2952 (1989)(emphasis
added); see Parker v. Dugger, 111 S. Ct. 731 (1991).

mitigating factor cannot be rejected unless there is
“competent substantial evidence refuting the existence of the
factor.” Maxwell v. State, 603 So. 2d 490 (Fla. 1992).

The

prejudice to Mr. Walton resulting from counsel's deficient
performance is clear.

A myriad of mitigating factors existed

and could have been presented.
There was no tactical or strategic reason for not
presenting complete mental health mitigation.
Aiken.

Brewer v.

Counsel failed to make a timely, adequate

investigation.

No tactical motive can be ascribed for failure

to present any mental health mitigation.
888 F.2d 112 (11th Cir. 1989).

Nixon v. Newsome,

Additional mitigation to

support a judicial override of the 9-3 death recommendation
could have been presented at the resentencing.

Counsel,

however, failed to investigate for additional mitigation.15
This is prejudicially deficient performance.

The fact that

In denying relief, the circuit court relied entirely upon
this Court's decision in Blanco v. Wainwright, 507 So. 2d 1377
(Fla. 1987). That decision has since been repudiated by the
Eleventh Circuit. Blanco v. Singletary, 943 F.2d 1477 (11th
Cir. 1991).
63

some testimony was presented does not establish effective
assistance where further investigation into additional
mitigation was warranted.
(11th Cir. 1991).

Cunningham v. Zant, 928 F.2d 1006

Counsel was ineffective.

Loyd v. Smith,

899 F.2d 1416 (5th Cir. 1990).
No reliable adversarial testing occurred.

Confidence in

the outcome is undermined, and the results of the penalty
phase are unreliable.

A resentencing must be granted, and

relief is proper.

ARGUMENT II
THE STATE WITHHELD EXCULPATORY AND
EVIDENCE, IN VIOLATION OF BRADY V.
THIS WITHHELD INFORMATION IMPACTED
AND PENALTY PHASES OF MR. WALTON’S

IMPEACHMENT
MARYLAND.
ON BOTH GUILT
PROCEEDINGS.

To prove a violation of Brady, Mr. Walton must establish
that the government possessed evidence that was suppressed,
that the evidence was "exculpatory" or "impeachment," and that
the evidence was "material."

United States v. Bagley, 473

U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995);
Strickler v. Greene, 527 U.S. 263 (1999).

Evidence is

"material" and a new trial or sentencing is warranted "if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different."

Kyles, 514 U.S. at 433-34; Young v.

State, 739 So. 2d 553 (Fla. 1999); Lightbourne v. State, 742
So. 2d 238 (Fla. 1999); Rogers v. State, 782 So. 2d 373 (Fla.
2001); Hoffman v. State, 2001 WL 747399 (Fla. 2001). To the
extent that counsel was or should have been aware of this
information, counsel was ineffective in failing to discover it
and impeaching the State witnesses with it.

The issue of

materiality is subject to de novo review, although this Court
gives deference to findings of fact supported by competent and
substantial evidence.

A proper materiality analysis under Brady also must
address the cumulative effect of all suppressed information.
The suppressed evidence must be viewed in the context of other
evidence that was presented at trial.

Hoffman.

Further, the

materiality inquiry is not a "sufficiency of the evidence"
test.

Id. at 434.

The burden of proof for establishing

materiality is less than a preponderance.

Williams v. Taylor,

120 S.Ct. 1495 (2000); Kyles, 514 U.S. at 434.
Mr. Walton pled this claim as Brady and newly-discovered
evidence in the Third Amended Motion to Vacate Judgment and
Conviction (PC-1. 1921-1936).
At the 1999-2000 evidentiary hearing, it was proven that
the State withheld key exculpatory materials from the defense.
Handwritten notes from police interviews show that Robin
Fridella, Mr. Walton’s girlfriend and sister and wife of two
of the victims, did not get along with her brother, Gary
Peterson.

A person who knew Robin told police “If she

couldn’t have Christopher and Steven back, no one would have
him” (PC-1. 4256)(Exhibit 10).
Robin Fridella

The notes also reveal that

was not truthful when she was given a lie

detector test and asked about her involvement in the crime
(PC-1. 4254)(Exhibit 8).

The evidence showed that Robin

Fridella may have been involved in the crime and had undue

influence over Mr. Walton.

This information pertains to both

the guilt and penalty phases of trial.
Robin Fridella’s involvement in the crime was never an
issue before because key materials were not been disclosed by
the State.

None of this information was given to the defense

at trial or resentencing.

Under Kyles, knowledge of

exculpatory information is imputed to the prosecutor, whether
or not the prosecutor has actual knowledge.

The individual

prosecutor has a duty to know of any favorable evidence known
to others acting on the government’s behalf, including the
police and sheriff. Kyles.
The withheld information was material to motive; Mr.
Walton’s mental state at the time of the crime; and the
State’s ability to prove the aggravating factors against Mr.
Walton.

It could have provided impeachment evidence and

offered an alternative theory of the crime than that forwarded
by the State.

The information also was material to the

penalty phase, for it could have provided an explanation for
Mr. Walton’s conduct.
Donald O’Leary, Mr. Walton’s trial attorney, testified
that he had been practicing law for 29 years and was a former
prosecutor (PC-1. 3912).

He was appointed to represent Mr.

Walton at trial and again at resentencing (PC-1. 3913). This

was his first murder case as a defense attorney (PC-1. 3920).
He testified that he sought discovery from the State before
trial.

On January 26, 1983, he requested discovery and the

request specifically mentioned Brady (PC-1. 3914;
4247)(Exhibit 1).
Mr. O’Leary filed a motion to compel discovery that was
filed on May 10, 1983, which was to compel release of all
police reports (PC-1. 3914-3915; 4248)(Exhibit 2).

A third

motion for discovery was filed on June 7, 1983, seeking any
promises or agreements between the state and other witnesses
who may have been given immunity or convicted of a crime (PC1. 3916-3917; 4249)(Exhibit 3).
A fourth motion, production of police reports, was filed
on June 7, 1983, seeking all police reports that might contain
evidence or lead to evidence that would be relevant to the
case (PC-1. 3917; 4250)(Exhibit 4).

A fifth motion was filed

on June 7, 1983 demanding exculpatory information (PC-1. 3918;
4252)(Exhibit 5).
By filing these motions, Mr. O’Leary testified that he
expected to receive all relevant discovery.

Mr. O’Leary’s

motion to compel discovery was granted by the trial court (PC1. 3919; 4253)(Exhibit 6). Mr. O’Leary testified that he
“assumed that I was getting everything I was entitled to” (PC-

1. 3920).

He did not file any additional motions at

resentencing because he believed that he had all the materials
to which he was entitled (PC-1. 3919).
At the 1999 evidentiary hearing, Mr. O’Leary was shown
the materials withheld by the State.

He identified a police

report that showed a civil trespass violation against Robin
Fridella filed by Steven Fridella involving the couple’s son.
Mr. O’Leary testified that he did not have this information at
trial (PC-1. 3922; 4253)(Exhibit 7).
Mr. O’Leary identified a Pinellas County Sheriff’s Office
supplemental report dated June 18, 1982 that showed that Robin
Fridella was administered a polygraph, about three days after
the homicide. The polygraphist concluded that Robin Fridella
was not telling the entire truth and was deceptive in her
answers.16

Mr. O’Leary specifically recalled not having access

to this report or its information at trial or resentencing
(PC-1. 3923-24; 4254)(Exhibit 8), but was something that he
expected to receive in his discovery requests (PC-1. 3925;
3926).
At the 1999 evidentiary hearing, the State produced a

Detective Poe apparently changed his mind about Robin
Fridella’s polygraph exam eleven (11) years after the fact and
immediately before he was to testify for the State about his
results in an evidentiary hearing in post-conviction. (PC-1
4243).
69

1983 deposition of Detective Richard Poe, who administered the
polygraph exam to Robin Fridella.

Mr. O’Leary was not present

nor did he conduct the deposition. When Detective Poe was
asked about whether there was deception by Robin Fridella, the
prosecutor objected:
A

Mr. Geesey: Okay. I’m going to voice an objection at
this time as to the questions of the results of the
polygraph. I don’t think they’re admissible.

Mr. Crider: Are you refusing to answer the question?

Mr. Geesey:

I’m going to object and ask to have
that
question certified and request that the witness not
answer that question unless ordered by a judge.

(PC-1. 4242).

For the State to argue that the information was

available in 1983 is wrong.

The State withheld this

information from 1983 until it was finally released sometime
in 1996-1997.
Mr. O’Leary also identified information from handwritten
police field notes that said, “Robin didn’t get along with her
brother Gary Peterson.

If she couldn’t have Christopher and

Steven back, no one could have him. Told Robin is involved
with MC gang connection” (PC-1. 3928; 4256)(Exhibit 10).
Mr. O’Leary identified police handwritten notes that
said, “Had a lot of problems with Robin over the children.
She said if she couldn’t have them, no one would. ...Robin

said she would do anything to get the kid” (PC-1.
3929)(Exhibit 11).

Several of the handwritten notes from the

police indicate that the police interviewed people who knew
Robin and Steve Fridella and knew that they fought over
custody of the children.

One note indicated that Steve

Fridella attempted to change the joint custody status and get
full custody of his children (PC-1. 3931; 4260)(Exhibit 14).
The withheld information also showed that Robin once found her
husband in bed with another woman.

One witness told police,

“Steve burned her enough that she might have something to do
with it” (PC-1. 4258)(Exhibit 12).
Mr. O’Leary testified that this information was something
he expected to receive from the State in discovery, but did
not do

so.

He believed that he was entitled to this

information (PC-1. 3930). Mr. O’Leary testified that this
information was something he would have wanted to know back in
1983 and is what he expected to receive in his discovery
requests (PC-1. 3931).
Mr. O’Leary testified that while this information was not
known to him at trial and it was information that he expected
to receive from the State, he did not consider the information
to be Brady because it would not have made a difference in his
defense.

When asked if he would have sought additional

investigation based on this information, Mr. O’Leary said no
(PC-1. 3949).
Mr. O’Leary did not know what Brady material was. He failed to
understand that the “withheld information, even if not itself
admissible, can be material under Brady if its disclosure would lead
to admissible substantive or impeachment evidence."

Rogers v. State,

782 So. 2d 373, 383 n.11 (Fla. 2001).
Mr. O’Leary’s flawed definition of Brady was “you’re
entitled to all relevant information that would tend to
indicate – well, it would tend to indicate guilt or innocence”
(PC-1. 3928).

Contrary to Mr. O’Leary’s understanding of

Brady, the material withheld by the State clearly fell within
the parameters of Brady.17

The evidence was favorable to Mr.

Walton because it was exculpatory and impeaching.
simply did not know how to use it.

Mr. O’Leary

The information cast doubt

on Mr. Walton’s role in the crime. The withheld information
could have been used to attack the State’s theory of the case
– that the murders were the result of a robbery and that Mr.
Walton was the “mastermind” who had control over three, young

See, e.g. White v. Helling, 194 F. 3d 937, 946 (8th Cir. 1999)
(withheld information, although not necessarily admissible at trial,
was nonetheless material under Brady because it "would surely have
been the basis for further investigation"); Sellers v. Estelle, 651
F. 2d 1074, 1077 n.6 (5th Cir. 1981) ("the evidence here suppressed
was material to the preparation of petitioner's defense, regardless
of whether it was intended to be admitted into evidence or not").
72

boys.

The new information shows that the “mastermind” may

have been the person who would do anything to keep her
children.

The withheld information showed that Robin Fridella

was not to be believed; may have been involved in the murders;
and may have had a strong influence over Jason Walton that was
not known by the jury.

Nothing could have been more masterful

than seducing an inexperienced and naive boyfriend with the
purpose of having him kill the only obstacle to keeping her
children -- Steve Fridella.

No one had a better motive.

With

this information, competent counsel with even an elementary
understanding of Brady would have known how to use it.
The polygraph results and Ms. Fridella’s complete
statements should have been disclosed in discovery and should
have been introduced at the penalty phase.

Defense counsel never

investigated the possibility of presenting this evidence at the
penalty phase.
While polygraph evidence is generally inadmissible at the guilt
phase, Ms. Walton submits that it is admissible at the penalty phase.
See Fla. Stat. § 921.141 (1) (1992).

The Eighth and Fourteenth

Amendments to the United States Constitution also forbid the per se
exclusion of relevant evidence at a capital penalty phase.

Lockett

v. Ohio, 438 U.S. 586, 604 (1978); Skipper v. South Carolina, 476
U.S. 1 (1986); Green v. Georgia, 442 U.S. 95, 97 (1979).

The Ninth Circuit has concluded that the refusal to permit
evidence that the State's key witness had failed a lie detector test
resulted in a violation of a defendant's due process right to present
relevant mitigating circumstances of the crime.

Rupe v. Wood, 93 F.

3d 1434, 1441 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997).
Accord Paxton v. Ward, 199 F. 3d 1197 (10th Cir. 1999).18
Mr. Walton
was similarly deprived of his right to present relevant mitigating
evidence.

Robin Fridella’s failed polygraph would have been

compelling mitigation on behalf of Mr. Walton, and the State
improperly withheld that information from the defense.
There is no question that the withheld information was
suppressed by the State.

Trial counsel testified that he had

not seen this information or the contents of these reports
despite his repeated requests for discovery.

Had this

information been disclosed, the State’s theory of Mr. Walton’s
motive could have been destroyed.

Suspicion would have fallen

The Supreme Court decision in United States v. Scheffer,
523 U.S. 303 (1998) held that a defendant's attempt in a
court-martial proceeding to present polygraph results to
support his testimony that he had not used drugs violated his
right to present a defense. Scheffer, however, does not apply
to a capital defendant's constitutional right to present
mitigation. Paxton, 199 F. 3d at 1215. The Scheffer Court
noted that its holding did not apply to situations where the
exclusion of polygraph evidence "has infringed upon a weighty
interest of the accused" or "implicate[s] a sufficiently
weighty interest of the defendant to raise a constitutional
concern under our precedents." Scheffer, 523 U.S. at 303-09.
Thus, Scheffer supports Mr. Walton’s argument.
74

on the most likely suspect – Robin Fridella – creating a
reasonable doubt in the minds of the jurors as to who was
behind the crime.

The police obviously were suspicious of

Robin Fridella or would not have gone to the trouble to
polygraph her.
This information also could have been effective at the
penalty phase to explain why Mr. Walton was so devoted to
Robin Fridella that he would have done anything to be with
her.

At the least, this information would have opened the

door to further investigation into Mr. Walton’s background and
relationships.

Therefore, this information was favorable to

the defense. This was Brady material and trial counsel was
ineffective for failing to understand how it could have been
used effectively in Mr. Walton’s defense.
In its order denying relief, the trial court erroneously
said that this information could have been discovered before
through the exercise of due diligence (PC-1. 2410).

The trial

court made this finding because Mr. Walton knew that Robin
Fridella had a substantial influence on him.

And because he

knew this, any evidence of Robin Fridella’s domination of Mr.
Walton was known to the defense.

This was incorrect.

The trial court overlooked binding legal precedent establishing
that diligence is not an element of a Brady claim.

Strickler v.

Greene, 527 U.S. 263, 281-82 (1999); Kyles v. Whitley, 514 U.S. 419
(1995).

See also Occhicone v. State, 768 So. 2d 1037, 1042 (Fla.

2000) (noting that "`due diligence' requirement is absent from
Supreme Court's most recent formulation of the Brady test"); Banks v.
Reynolds, 54 F. 3d 1508, 1517 (10th Cir. 1995) (prosecution's
obligation to turn over evidence "stands independent of the
defendant's knowledge").19
"Diligence" is measured by reasonableness, not perfection.
Williams v. Taylor, 529 U.S. 420, 435 (2000) ("Diligence . . .
depends on whether the prisoner made a reasonable attempt, in light
of the information available at the time, to investigate.... [I]t
does not depend ... upon whether those efforts could have been
successful").
The presumption, well established by tradition and
experience, that prosecutors have fully discharged their
official duties, is inconsistent with the novel suggestion that
conscientious defense counsel have a procedural obligation to
assert constitutional error on the basis of mere speculation
that some prosecutorial misstep may have occurred." Strickler,
527 U.S. at 286-287.

The reason for no such requirement is that, under the law,
it is the prosecutor that has the "duty to learn" of
exculpatory evidence. Kyles v. Whitley, 514 U.S. 419, 437
(1995). See also Hoffman v. State,
So. 2d
(Fla. 2001)
(slip op. at 9-10) (rejecting State's argument that defense
counsel lacked diligence in failing to discover exculpatory
evidence; "[t]his argument is flawed in light of Strickler and
Kyles, which squarely place the burden on the state to
disclose to the defendant all information in its possession
that is exculpatory").
76

The trial court’s ruling was wrong.
Moreover, if the trial court’s position was true, then
any mentally-deficient or brain-damaged client would be deemed
to have the responsibility of making sure his attorney knew
everything mitigating in his character, even though, he, as a
layman, would have no way of knowing what mitigation was.

Mr.

O’Leary’s obligation was to conduct a thorough investigation.
His discovery requests specially and repeatedly asked for this
type of information.

Mr. O’Leary testified that he expected

to find out such information as Robin Fridella’s relationship
with her ex-husband, and her child custody problems through
discovery.

He did not because the State withheld it.

Mr. O’Leary testified that he knew Mr. Walton and Ms.
Fridella were in a relationship.

What Mr. O’Leary did not

know was that the police suspected Robin Fridella and knew
that she made statements to the police that she would do
“anything” to keep her children. Mr. Walton had no way of
knowing she made those statements nor did he know what aspects
of his character or relationships Mr. O’Leary needed because
he did not ask.

It is the attorney’s responsibility to

investigate because he is the one with the legal training.
Mr. Walton, a brain-damaged indigent defendant, is not, under
the law, expected to know the intricacies of mitigating

evidence that even Mr. O’Leary did not understand. See,
Washington v. Smith, 219 F.3d 620, 631 (7th Cir. 2000)(Telling
a client who is in jail awaiting trial to produce his own
witnesses falls short of conducting a reasonable
investigation). During O’Leary’s testimony, it was clear that
he thought Brady violations only occurred when exculpatory
information was withheld.

He did not know that Brady means

any evidence that is favorable to the defense should be
disclosed.

See, Kyles v. Whitley.

That means any evidence

that would have been favorable to Mr. Walton’s mental health
expects.
Mr. Walton is entitled to a resentencing.

ARGUMENT III
MR. WALTON WAS DENIED HIS FUNDAMENTAL RIGHTS TO
CONFRONTATION, TO DUE PROCESS, AND TO A RELIABLE AND
INDIVIDUALIZED HEARING WHEN THE DEFENSE MENTAL
HEALTH EXPERT FROM THE CO-DEFENDANT'S CASE WAS
ALLOWED TO TESTIFY AT HIS EVIDENTIARY HEARING AND HE
WAS UNABLE TO PROPERLY CROSS EXAMINE HIM AS TO HIS
CONFLICT OF INTEREST.

During the 1991 evidentiary hearing, Sidney Merin, Ph.D.,
was called as a State witness to testify against Mr. Walton.
Dr. Merin was the same confidential psychologist who examined
Mr. Walton's co-defendant, Richard Cooper, before his trial
and who testified at Mr. Cooper's sentencing hearing.

Mr.

Walton’s counsel objected to Dr. Merin's testimony on the
basis that the doctor would not have been available to testify
at Mr. Walton's trial because he was the confidential mental
health expert for Mr. Cooper (PC-R. 418).

Counsel objected

that this would have caused a conflict of interest and Dr.
Merin's testimony could not have been considered at trial (PCR. 418-19).
Dr. Merin had access to statements made by Richard
Cooper.

This Court reversed Mr. Walton's first penalty phase

proceeding because the State called a witness to testify
regarding statements made by Richard Cooper.

Walton I.

However at the 3.850 hearing, the court ruled that whether or
not Dr. Merin would have been able to accept an appointment
79

pretrial to do both confidential evaluations or would have
been permitted to testify at the sentencing was irrelevant,
and overruled the objection, "allow[ing] Dr. Merin to testify
for purposes of th[e] hearing on behalf of the state" (PC-R.
420).

The court's refusal to sustain the objection and its

admission of Dr. Merin's testimony deprived Mr. Walton of his
rights to confrontation, to due process, and to a full and
fair hearing on the issues.
Dr. Merin was the confidential expert for Richard Cooper,
Mr. Walton's co-defendant (Cooper Record at 412).

His

evaluation of Mr. Cooper was based solely on personal
interviews with Mr. Cooper and a copy of Mr. Cooper's
interview with Detective Ron Beymer and Detective J.M.
Halliday (Id. at 399, 414, 433).

Based on this limited

information from and about Mr. Cooper, Dr. Merin arrived at an
opinion of Mr. Walton's personality.

He determined that Mr.

Walton was a skilled manipulator who feigned being distressed
or even hysterical (Id. at 418).

In fact, Dr. Merin testified

that his conclusion that Mr. Walton was a dominating
personality was arrived at by determining that Mr. Cooper's
personality was such that he would respond to a very powerful
authoritative personality.
a personality (Id. at 433).

Thus, Mr. Walton had to have such
Dr. Merin testified to this at

the sentencing phase of Mr. Cooper's trial and even through
rigorous cross-examination, stuck by his conclusions about Mr.
Walton's personality.

However, these conclusions were

premised upon Mr. Cooper's out-of-court statements to Dr.
Merin.
When Dr. Merin began his evaluation of Mr. Walton before
Mr. Walton's evidentiary hearing, he had pre-determined the
issues he was to decide.

In evaluating the mental condition

of a defendant, the professional has an obligation to make a
thorough assessment based on sound evaluative methods and to
reach an objective opinion.
Health Standard 7-1.1.

See ABA Criminal Justice Mental

Dr. Merin could not be objective in

his evaluation of Mr. Walton due to his previous loyalties to
Mr. Cooper and his pre-conceived opinion of Mr. Walton's
personality and mental state based upon Mr. Cooper's
statements to him.

Dr. Merin would have been ethically

prohibited from testifying for the state at Mr. Walton's
resentencing after testifying on behalf of Mr. Cooper at his
sentencing.
Furthermore, in evaluating Mr. Cooper, Dr. Merin was
privy to Mr. Cooper's personal version of the events of May
11, 1982, and to Mr. Cooper's statement to police taken after
his arrest.

Had Dr. Merin testified at Mr. Walton's

resentencing, Mr. Walton would have been subjected to a
sentencing proceeding at which his co-defendant's unconfronted
statements were used to sentence Mr. Walton to death.

This

Court reversed in Walton I for precisely the same error.

This

simply cannot be squared with the Due Process Clause, the
Confrontation clause, or the Eighth Amendment.
In 1999, Dr. Merin was given the withheld public records
from Mr. Walton’s case that showed that Robin Fridella was a
liar and witnesses, including the police, believed she may
have had something to do with the murders.

Dr. Merin was

asked whether those materials would have impacted on his
initial evaluation.
Dr. Merin conceded that his time with Mr. Walton in 1991
was limited to three hours and testing was done by an
assistant, and not Dr. Merin (PC-1. 4160-4161).

In light of

the withheld information, Dr. Merin did not seek to reevaluate Mr. Walton.
family members.

He did not speak to any of Mr. Walton’s

He did not see the letters Mr. Walton wrote

to Robin Fridella.

He did not speak to Carolyn Walton about

Mr. Walton’s relationship with Ms. Fridella.

He did not speak

to Lydia Horn or Kim Fox about Mr. Walton’s relationship with
Ms. Fridella.

He did not speak to Teresa Knapp or Julia Walsh

about Mr. Walton’s background, drug addiction or relationship

with Robin Fridella.

He did not know about Ms. Fridella’s

lifestyle, the type of mother she was, or if she had any drug
problems (PC-1.- 4163).

In fact, Dr. Merin testified that he

did not know about “the essence of the

relationship” (PC-1.

4164).
When counsel for Mr. Walton attempted to ask Dr. Merin if
Mr.

Cooper’s statements impacted his opinion on Mr. Walton,

the State objected and the trial court held that no conflict
existed and it should have been raised earlier (PC-1. 4173).
However, Mr. Walton had raised it earlier.
either confused the two cases or forgot.
in 1991 and

The trial court
The conflict existed

the same conflict continued until today.

1991, Dr. Merin testified that he was able to keep both
evaluations separate and there was a passage of time between
both cases so as to negate any conflict (PC-R. 418-420).
However, in 1999, Dr. Merin was at it again.

He had been

asked to review materials for Mr. Walton and was asked by the
State to review materials for Mr. Cooper’s case within a few
weeks of each other.

Both Mr. Cooper and Mr. Walton’s cases

were proceeding in post-conviction at the same time and in
front of the same judge.

Portions of the evidentiry hearing

were heard on the same day, confusing the facts and
interfering with Mr. Walton’s ability to confront Dr. Merin’s

testimony.20
In Sanders v. State, 707 So. 2d 664 (Fla. 1998), Dr.
Merin was involved in another conflict of interest that
resulted in a new penalty phase based in part on this
conflict.

In that case, the trial court erred in allowing Dr.

Merin to testify on behalf of the State, even though he had
been appointed as a confidential defense expert.

The defense

provided Dr. Merin with background materials about the case.
Dr. Merin said because of an office problem, he took no action
on the case.
witness.

A year later, the State listed Dr. Merin as a

The defense attempted to strike Dr. Merin as a

witness, but the motion was denied. Id. at 668.
Dr. Merin testified that he “felt uncomfortable about
being called by both sides” Id. at 669, and only after he was
reassured by the State that he could testify, did Dr. Merin
assist the State.

This Court held it was error to allow Dr.

Merin to testify on behalf of the State because the defendant
did not waive the attorney-client privilege.

Id. at 669.

In Mr. Walton’s case, Dr. Merin had no apparent

In fact, at his December 7, 1999 deposition in Mr. Walton’s
case, collateral counsel for Mr. Cooper was present. He
indicated that Dr. Merin was mentioned as a possible State
witness for Mr. Cooper’s post-conviction proceedings that were
occurring at the same time as the proceedings in Mr. Walton’s
case (PC-1. 2133).
84

discomfort in obtaining confidential information from Mr.
Cooper and using it against his co-defendant, Mr. Walton. He
had no problem testifying against Mr. Walton within days of
reviewing his notes on Mr. Cooper.

This conflict is even more

egregious than the conflict in Sanders.
Mr. Walton could not have required Mr. Cooper to waive
his constitutional right to remain silent and force him to
make himself available for cross-examination at Mr. Walton's
resentencing or in post-conviction.
So. 2d 803 (Fla. 1983).

See Engle v. State, 483

The State would have been unable to

introduce Mr. Cooper's testimony or statement to the police at
Mr. Walton's hearing.

To allow Dr. Merin to testify based on

conclusions formed from such information would allow the same
inadmissible evidence in through the back door.
Mr. Walton is entitled to an "individualized
determination" of whether he should be executed, taking into
account the “character of the individual and the circumstances
of the crime."

Zant v. Stephens, 462 U.S. 862, 879 (1983).

See Parker v. Dugger, 111 S. Ct. 731 (1991).

In imposing

death, the sentencer must consider only those factors that
directly pertain to the defendant's "personal responsibility
and moral guilt."

Enmund v. Florida, 458 U.S. 782,801 (1982).

A contrary approach creates the risk that the death penalty

will be imposed because of considerations that are
"constitutionally impermissible or totally irrelevant to the
sentencing process."

Zant v. Stephens, 462 U.S. at 885.

The trial court's admission of Dr. Merin's testimony
deprived Mr. Walton of his rights to confrontation, to due
process, and to a full and fair hearing.

This error was

compounded when the circuit court denied Mr. Walton his right
to fully cross-examine Dr. Merin about these matters.

Since

the circuit court considered and exclusively relied upon Dr.
Merin in denying relief, a new evidentiary hearing is
warranted.

ARGUMENT IV
THE TRIAL COURT FAILED TO CONSIDER NEWLYDISCOVERED EVIDENCE OF IMPEACHMENT THAT WOULD
HAVE SHOWN THAT MR. WALTON WAS NOT THE RING
LEADER OR THE MASTERMIND BEHIND THE MURDERS,
AS ARGUED BY THE STATE.
On January 14, 2000, during an evidentiary hearing of
Richard Cooper’s case, the defense called co-defendant Terry
Van Royal to testify.

Mr. Cooper’s hearing was before Circuit

Court Judge Downey, the same judge who was presiding over Mr.
Walton’s evidentiary hearing.

At that time, Mr. Van Royal

disavowed an affidavit he signed in 1995, in which he said Mr.
Walton was the “mastermind” behind the murders.

In 2000, he

testified that the affidavit was untrue and said he signed it
thinking that he could help himself and Mr. Cooper.
At Mr. Cooper’s 2000 hearing, Mr. Van Royal testified
that he, Cooper and Jeff McCoy looked up to Mr. Walton and
idolized him. They did not want to disappoint him and they did
what they were asked.

Mr. Van Royal testified that Mr. Cooper

left before the last shot was fired.

Mr. Van Royal said he

did not fire the last shot and that he had a 30-30.

He said

that Cooper and Walton had shot guns and that Mr. Walton also
had a shotgun.

On the trip to Clearwater, Mr. Van Royal said

they were under the influence of drugs.
In January 2000, Mr. Van Royal testified that Mr. Cooper

shot one victim, but he did not know which one.
shot no one.

He said he

He said Mr. Walton shot one or two of the

victims, and at least one of them.

When the last shot was

fired, he said both Cooper and Van Royal were outside.
While counsel was present for Mr. Cooper’s hearing, she
was not a party to it.

At the next hearing in Mr. Walton’s

case, counsel mentioned that Mr. Walton’s previous postconviction attorneys had information about Mr. Van Royal that
directly refuted his latest testimony from Mr. Cooper’s case
and sought to present the attorney’s testimony either through
affidavit or testimony. The information that Mr. Walton was
not the mastermind was newly-discovered; was unknown at the
time of the trial and such evidence would have been admissible
at trial, if only for impeachment.

Such evidence, when

considered in conjunction with other evidence would have
probably produced a different result at sentencing.
State, 788 So. 2d 249 (Fla. 2001).

Mills v.

Judge Downey allowed the

two attorneys to testify.
I think that while, you know, it appears that
we’re a little convoluted here, the fact remains
that Mr. Van Royal testified one way, he then came
in here and testified another way and then
apparently in-between those two times, in talking
with the CCR attorneys for Mr. Walton, he made a
third statement.
Certainly if for nothing else it brings his
credibility into issue as to, you know, which time
88

is true. And I think that that could, you know,
have a hearing on both the Walton and Cooper matter
because at one time he was saying, you know, it was
all Cooper, and another time he was saying it was
all Walton.
(PC-1. 3825-3826).

While the court properly ruled that this information was
valid as to Mr. Walton’s case, he erred when, over defense
objection, he allowed Mr. Cooper’s attorneys to cross examine
Mr.

Walton’s witnesses during a Walton hearing. The judge did

not allow Mr. Walton that opportunity at the Cooper hearing
(PC-1. 3829).

This violated Teffteller v. Dugger, 676 So. 2d

369 (Fla. 1996), which held that defendants in post-conviction
should have their claims considered on an individual basis
rather than a consolidated hearing.

The court also violated

Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981), which held
there was no authority to join or consolidate death row cases.
The trial court erred in allowing Mr. Cooper to intervene in
Mr. Walton’s case, without the authority to do so.
cases have never been tried together.

The two

And, in an earlier

proceeding when counsel for Mr. Walton attempted to question
Dr. Merin about his involvement in both Mr. Cooper and Mr.
Walton’s cases, the trial court refused to allow such
questioning.
Ken Driggs, an attorney who began representing Mr. Walton
89

in 1990, testified that on December 7, 1990, he and attorney
Beth Wells, drove to Florida State Prison to meet and
interview Terry Van Royal.

At that time, both Mr. Driggs and

Ms. Wells represented Mr. Walton in post-conviction
proceedings.

Mr. Driggs described Mr. Van Royal as frightened

and who looked “like a little kid” (PC-1. 3831).
Mr. Van Royal initially was very nervous and Mr. Driggs
did not take notes.

Mr. Van Royal told the lawyers that no

one intended to cause harm to anyone.

He and Mr. Cooper were

armed with shotguns and as they prepared to leave, Jeff McCoy
was outside in the car. The three victims were on the floor
and as they were backing out the door, Mr. Cooper began to
yell.
Mr. Van Royal told them:
It wasn’t even so much a word, it was just
a noise and opened up and began to shoot
the shotgun at the victims; that Mr. Van
Royal began to shoot himself, that he was
just sort of shocked and didn’t know what
had triggered this, that he began to shoot;
that Mr. Walton was with them at the door,
to, and he was also very surprised by this
and that the shooting wasn’t a result of a
command or anything like that; and that the
room filled up with smoke and the smell of
gunpowder and they ran out.

(PC-1. 3834-3835).
Mr. Van Royal told the lawyers that Mr. Walton did not

shoot anyone nor did he command anyone to shoot, and the
shooting was initiated by Mr. Cooper.

He said that he and Mr.

Cooper were the shooters. (PC-1. 3835).
Both the State and Mr. Cooper’s attorney then had an
opportunity to cross examine Mr. Driggs (PC-1. 3837; 3852).
Attorney Elizabeth Wells, who represented Mr. Walton in
1990, had a similar recollection as to what Mr. Van Royal told
them.

She said that Mr. Van Royal was present when Mr. Walton

and Mr. Cooper were discussing robbing Steven Fridella before
the actual robbery, but that it was just talk. Mr. Van Royal
said during these discussions that there was no mention of any
plan to harm anyone and Mr. Walton specifically told him that
no one was to be hurt.
The men went through the house.

The three men were tied

up and the boy was put in the bathroom (PC-1. 3864). Mr. McCoy
was outside.

As they were about to leave, Mr. Cooper started

screaming and shooting.

Mr. Walton and Mr. Van Royal

immediately ran out the door and it was raining, and ran into
a fence and both fell in the mud. The shooting stopped and
both men returned to the house.

One man was barely still

alive, and Mr. Van Royal shot him.

Mr. Van Royal said that

Mr. Walton did not shoot anyone (PC-1. 3866).
In denying Mr. Walton relief, the trial court completely

ignored the testimony of the two attorneys and ignored the
fact that Mr. Van Royal had changed his story.

In denying

relief, the trial court only addressed whether there was a
consolidation of two death penalty cases and did not address
the fact that Mr. Van Royal had repeatedly lied under oath in
an effort to help himself and hurt Mr. Walton (PC-1. 24192420).
This case involved critically important facts that were
unavailable to either the judge or the jury in determining Mr.
Walton's fate.

It was never alleged that Mr. Walton was a

triggerman, or that he was the one who actually did the
killing.

In fact, the State argued in the Cooper and Van

Royal trial’s that Mr. Walton was not the mastermind.
On the other hand, Mr. Van Royal, who received a life
sentence, clearly was a triggerman.

It cannot be argued that

Mr. Walton is more culpable of the two.

To allow Mr. Walton's

death sentence to stand would be disproportionate, disparate,
and invalid.

This error is particularly egregious in this

case where three jurors voted for life, even without this
information.
Mr. Van Royal was sentenced after the trial court
announced Mr. Walton's death sentence.
consider the issue on direct appeal.

This Court did not
To the extent that trial

counsel or appellate counsel should have raised or argued the
issue before the respective courts, Mr. Walton received
See Strickland v.

ineffective assistance of counsel.
Washington, 466 U.S. 668 (1984).

As it is, no sentencer has

been provided a "vehicle" for considering the codefendant's
life sentence.

See Penry v. Lynaugh, 109 S. Ct. 2934, 2951

(1989) (capital sentencer "must be allowed to consider and
give effect to mitigating evidence relevant to a defendant's
character or record or the circumstances of the offense").
Mr. Walton respectfully requests that this Court, on
proportionality, disparity, and fundamental fairness grounds,
set aside this invalid death sentence and enter in its place a
sentence of life imprisonment.

At the least, a proper

resentencing is required, at which time, Mr. Van Royal’s life
sentence may be taken into account.

Mr. Walton is entitled to

relief.

CONCLUSION
On the basis of the arguments presented here and in his
Initial Brief, Mr. Walton respectfully submits that he is
entitled to an evidentiary hearing, a new guilt phase and a
new penalty phase in the trial court.

Mr. Walton respectfully

urges that this Honorable Court remand to the trial court for

such proceedings, and that the Court set aside his
unconstitutional conviction and death sentence.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing motion
has been furnished by United States Mail, first-class postage
prepaid, to Carol Dittmar, Assistant Attorney General, 2002 N.
Lois Avenue, Suite 700, Tampa, FL 33607 this October 24th,
2001.

__________________________________
PAMELA H. IZAKOWITZ
Florida Bar No. 0053856
CAPITAL COLLATERAL REGIONAL COUNSELSOUTH
303 S. Westland Avenue
P.O. Box 3294
Tampa, FL 33601-3294
(813) 259-4424

Attorney for Mr. Walton

CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the Initial brief satisfies the
Fla. R. App. P. 9.100 (1) and 9.210(a)(2).

__________________________________
PAMELA H. IZAKOWITZ
Florida Bar No. 0053856
CAPITAL COLLATERAL REGIONAL COUNSELSOUTH
303 S. Westland Avenue
P.O. Box 3294
Tampa, FL 33601-3294
(813) 259-4424

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