Case Facts

My Public Defender Nightmare

• My Public Defender, Ms. Debora Moss, was ineffective, not using any visual exhibits to support her arguments as to the bullet’s trajectory and the distance the gun was from Beverly when it discharged, (see Appendix: Exhibit 1). The state had offered into evidence a visual depiction of the floor plans of the house and yard, including the bedroom, but they were out of scale, giving the jury a distorted view of the property. My public defenders did object after I’d brought it to their attention that the illustrations weren’t to scale, but the judge still allowed several of the drawings into evidence as a representation of the scene.

• Moss didn’t utilize the crime scene video to impeach Pennington’s account of the struggle for the gun. It would have shown the jury that two men fighting over a gun would have caused extensive damage to something, or themselves, in that small, tight corner. But the fact is; the video shows that nothing on the dresser or on the walls or in the corner was disturbed in that alleged violent struggle.

• My lawyer failed to impeach Pennington’s testimony about spending the weekend of Valentine’s Day with Beverly. He went into great detail about their weekend, including the consummation of their new relationship, (Trial Transcript Pg. 256). As I heard Pennington’s testimony I explained to my attorney that Beverly and I were in St. Augustine from Friday, February 13 through Monday, February 16, meeting with our accountant, which was easily verified. This impeachment would have shown the jury that Pennington was willing to lie for no reason other than to appear to have had a longer relationship with Beverly. On 3.850 appeal, I was granted an evidentiary hearing on this issue and the judge heard the testimony of our accountant, but said that even though it proved Pennington lied, it wasn’t enough to reverse to judgment and grant a new trial.

• In his statement to police, fireman/paramedic Steve Mixson describes his arrival at the scene that morning, and having a conversation with a young man. Mr. Mixson describes the young man being dressed in blue jeans and no shirt and that he is leaning up against a car. In his deposition he describes seeing an older man and a young woman in the street waving down the arriving police and ambulance, (Amanda and me). Mr. Mixson continues in this description saying that as he is walking toward the house he approaches a young man who is leaning against a car. When he asks if the young man knows what is going on, the young man replied, “That he’d shot a woman in the house and that the gun was beside her on the bed.” In the statement below, the second man identified by the emergency responder who had possession of the gun was Beverly's daughter's boyfriend who had picked it up off the bed after Pennington had left it there.
  

• Again, Mixson had related this whole encounter to the police in his written statement that he gave at the scene, (see police statement – Steven Mixson). During his deposition, he elaborated, calling this young man the “Perpetrator”, and goes into detail how he confesses to the shooting, (see Depositions – Police – Steven Mixson, pgs. 4-6). The physical description of the young man only fits Steve Pennington, especially since throughout all of Pennington’s statements and deposition he stated that all he had on were his blue jeans when he followed us out of the house. Also, my booking photo shows that I am an older man with a beard and mustache, and the arrest report states that I was wearing black running pants and a gray sweatshirt.

• Moss never followed up on Mr. Mixson’s statements when she cross examined him on the stand, so the jury was completely unaware that at the scene Pennington had indicated to Mr. Mixson that he was the shooter. If Mr. Mixson had been allowed to testify to the details of the encounter with Pennington, as he had during his deposition, at the very least, the jury would have seen that Pennington was very uncertain of what really happened in the bedroom, or that he was now simply lying about his involvement. I had never seen the statements or depositions of any of the police or firemen until I received copies after my initial appeal. Also, I was never allowed to attend any of the pre-trial hearings, even though I repeatedly requested inclusion.

• My attorney also showed extremely poor judgment and/or inexperience when she included damaging parts of the testimony of our expert witness to be heard without context. The expert was Florida Department of Law Enforcement gun expert Terrance Lavoy. He had first been hired by the state to testify as a witness arguing against the accidental shooting defense that we planned to present.

• Throughout his first deposition Lavoy stated there was no such thing as an accidental shooting and went into detail as to why. Ms. Moss filed a motion to suppress his testimony which the judge granted. For some unexplained reason, my public defender then decided Mr. Lavoy would make a good defense expert, and so there was a second deposition at which time he stated the same negative feelings about accidental shootings. During the Voir Dire, she asked each of the potential jurors if they believe in accidental shootings. All the jurors that were eventually seated expressed their belief in the possibility of a gun being discharged accidentally, (Supporting documents; Pg.3, index of Voir Dire - Trial Transcript pages listed for each jurors affirming statements).

• During her opening statements, Moss told the jury that they would hear from our expert that the shooting was not only an accident, but that the gun had a hair trigger, (Trial Transcript Pg. 239). Once on the stand, Mr. Lavoy said the gun had a light trigger, but not a hair trigger, (Trial Transcript Pg. 572). When she finally got around to asking about accidental shootings, he firmly stated exactly what he’d been saying in his depositions about there being no such thing as an accidental shooting, (Trial Transcript Pgs. 580- 583).

• I sat there clueless, not knowing what a great witness we could have had with Steve Mixson, the emergency responder who knew Pennington confessed to shooting my wife. Even without that knowledge, there were so many other facts in my favor, yet we were watching a confusing back and forth about accidental shootings. Everyone in the room must have understood the gun didn’t discharge by itself. The higher point is; the struggle was between Pennington and me, but neither of us intended for the gun to discharge and hurt Beverly.

• My attorney opened the door for the state to allow Mr. Lavoy, under cross examination, to describe all of the gun’s safety features and elaborate on how the gun works, (Trial Transcript Pgs. 585-589). Then she objects to her own witness, saying he has described the gun’s safeties three times, (Trial Transcript Pg. 589). What did she expect? He was slated as a state witness first, and she had deposed him twice, and even filed a motion to block this line of questioning, which was affirmed by the Trial Judge, (Motion to Limine #6, filed 10/04/99, granted 01/24/00). Under the state’s cross, Mr. Lavoy undermines everything that my attorney told the jury they would hear from our expert witness. Ms. Moss tries to fix her mistake under re-direct, but just starts arguing with “our expert” witness, trying to get him to recant his statements and agree with her, (Trial Transcript Pgs. 597-599). She never asked Mr. Lavoy if, during a struggle as described by both Pennington and me, the gun’s safeties could have been disengaged. In her closing arguments she tried to allude to the gun’s safety being released during the struggle, (Trial Transcript Pg. 760 & 772), but it was too late, her claims were not supported by the expert’s testimony. During the state’s closing, they bolstered their case by quoting Mr. Lavoy’s testimony, (Trial Transcript Pgs. 746-747).

• More importantly, Mr. Lavoy’ s one critical piece of testimony about the tests that he’ d done to determine the distance the gun was from Beverly when it went off, was not conveyed amidst all of the arguing. The point thus lost its value to impeach Pennington’s testimony about where everyone was positioned when the gun discharged.
  

• My attorney also made a big misstep when, in her closing statement, she tells the jury: “Steve Pennington is not lying,” leaving the jury to think that if he’s not lying, then I must be, since there are only two witnesses. I have to assume that she meant to say that I was not lying since she was supposed to be my defense attorney. She finally told us that my case was her first Capital Murder trial as lead counsel, and it was obvious throughout the trial that she was very nervous. Several times she would refer to people by the wrong name, or forget completely who or what she was talking about. You could tell that the jury was often confused, but their confusion really showed when on their note to the judge during their deliberation they referred to Steve Pennington as “David” Pennington.

• She also was inept when during deliberation the jury sent a note to the judge requesting copies of the transcripts, and statements of the witnesses because they were having trouble remembering what was said. To my surprise, my attorney agreed with the state Prosecutor that the jury had everything they needed to perform their task. In truth they had nothing but the “out of scale” house plans, crime scene photos and video, and the 911 tape to go on. Even though the trial was only a day and a half long, the jury appeared confused and my attorney did nothing to clarify the facts.

• My case was the last my attorney handled before leaving the public defender’s office for private practice and it was obvious she was rushing through the trial so she could get to her new job the very next day; never to contact me again.

• Finally, I realize I should have never had a public defender for a Capital Murder charge. Even after her work in the public defender’s office, Ms. Moss showed her inexperience, and just how very overworked she was. She told my family and me that my case was a good one to take to trial and to not waste money on a lawyer because she would win it. She actually told my family and friends not to travel down for the trial, but to save the trip just in case there was a sentencing hearing. Because of this, I sat in that courtroom with no one there to support me, though there were plenty of people willing to take the stand to testify to my character, and offer support.