5D09-1855 State v. Benjamin Smith

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2011 » 5D09-1855 State v. Benjamin Smith

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-1855

Case Date: 01/17/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

STATE OF FLORIDA, Appellant, v. BENJAMIN E. SMITH, Appellee. ________________________________/ Opinion filed January 21, 2011 Appeal from the Circuit Court for Orange County, Bob LeBlanc, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellee. Case No. 5D09-1855

GRIFFIN, J. In 2000, Benjamin Smith ["Smith"] was found guilty of first degree murder, attempted first degree murder and attempted burglary of a vehicle. He was sentenced to life imprisonment for the murder, fifteen years for the attempted murder and three

years for the burglary.1 This Court per curiam affirmed his initial appeal. See Smith v. State, 787 So. 2d 874 (Fla. 5th DCA 2001). The events surrounding the trial and the trial testimony were set forth by this Court in a prior opinion: On February 3, 1996, at approximately 10:30 p.m., the victims, Ellis Tapley and Kenneth Dozier, and several of their friends and family members attended a monster truck rally at the Citrus Bowl in Orlando. As they were returning to their vehicles, one of the friends, Terry Manley, spotted a young black male trying to break into Dozier's Ford Explorer. Manley ran ahead to the Explorer causing the would-be burglar to flee. Manley, Dozier, Tapley and another friend, Lee Keith, began to chase the suspect. During the chase, the suspect shot Tapley and Dozier. Tapley died at the scene, while Dozier was paralyzed from the chest down as a result of the shooting. A motorcycle police officer joined in the chase and exchanged gunshots with the fleeing suspect. However, the suspect was able to escape into a nearby neighborhood. The police officer was never close enough to the suspect to identify him. Ms. Pauldo was the only witness to the shooting of Tapley. She was parked at the side of the roadway to pick up her child who had been taken to the rally by a relative. She heard a commotion and, although it was dark, observed several men chasing a black male. She heard a gunshot and then saw the black male shoot Tapley. She testified at trial that she was able to see the suspect "squarely in the face" before he escaped. . . . Smith v. State, 990 So. 2d 1199, 1200 (Fla. 5th DCA 2008). Two years after the trial, Ms. Pauldo learned that Smith was the nephew of one of her acquaintances, Rufus Shinn. Smith's aunt informed Ms. Pauldo that Smith was innocent. Ms. Pauldo was later contacted by an attorney for Smith and, in 2004, she gave a sworn statement, which formed the basis for Smith's 2006 motion for The fifteen-year sentence and three-year sentence were to be served concurrently with each other, but consecutive to his life sentence. 2
1

postconviction relief, based on "newly discovered evidence." The motion asserted that "the sole witness to the incident, Mazie Pauldo [formerly known as Mazie Jackson], has recanted and substantially changed her 1996 and 1998 statements."2 In her statement attached to the rule 3.850 motion, Ms. Pauldo said that Smith was not the individual who shot Tapley and Dozier. She further averred that a police officer who had previously arrested her on drug charges threatened to have her put in jail if she did not cooperate by identifying the suspect. Additionally, Ms. Pauldo claimed that she was promised crime stopper reward money if she identified Smith. At trial, the defense had not been permitted to ask Ms. Pauldo whether she received, or expected to receive, reward money. Ms. Pauldo further averred that, at the photo line-up, Detective Gause showed her a picture of Smith and wanted her to identify him as the shooter. She said she gave in to the pressure and agreed that the person in the photograph was the shooter. Later on, immediately prior to the show-up, she claimed a detective again showed her a photograph of Smith and stated he did so "to keep [her] memory fresh." In her sworn statement, Ms. Pauldo also alleged that she had been told not to tell anyone that she had been shown Smith's photograph immediately prior to the line-up. Another important aspect of Ms. Pauldo's sworn statement is her insistence that the ten-year-old boy, Tommy Whitmer, was not present at the scene. This testimony is significant because of Tommy Whitmer's positive identification of Smith at the pre-trial line-up and at trial. The trial court initially denied Smith's second 3.850 motion, finding that this additional ground for relief was known to Smith and his counsel prior to the trial court's Smith's first 3.850 postconviction motion was per curiam affirmed by this Court. Smith v. State, 894 So. 2d 263 (Fla. 5th DCA 2004). 3
2

denial of his first rule 3.850 motion. The trial court additionally found that there was no reasonable probability that this recantation of Ms. Pauldo's trial testimony would cause a different result upon retrial. Smith appealed that decision and this Court reversed and remanded the case for an evidentiary hearing. Specifically, this Court said: Here, the trial court's order down-played the significance of Pauldo's new testimony. Pauldo's post-trial statement is not only a recantation of her identification of Smith as the shooter in a photo array and at a line-up, but it is also impeachment evidence as to the identification testimony of Lee Keith and Tommy Whitmer.

Download 5D09-1855 State v. Benjamin Smith.pdf