Cammarano v. StateCammarano v. State
Cammarano appeals from the trial court‘s summary denial of his
Recanted testimony is treated the same as a claim of newly discovered evidence when raised in a
The record establishes in this case that Cammarano and Potenzo were charged with two counts of first degree murder and armed robbery, committed at a bar, in Orlando, in 1984. Prior to trial, Potenzo entered into a plea agreement and testified as the key witness against Cammarano. Cammarano was convicted and sentenced in 1985, to two concurrent life sentences.
In Cammarano‘s earlier
An evidentiary hearing was held. Defense counsel testified he decided not to call Waters at the trial because of credibility problems, and because he called another witness who offered similar testimony. The trial court denied the earlier
The current motion goes far beyond the first. It alleges that Potenzo only recently came forward and recanted his trial testimony. Early in 1991, Potenzo agreed to be interviewed by representatives of Cammarano‘s attorneys. He now publicly admits it was solely his own idea to rob the bar and to commit the murders. He claims he did so without Cammarano‘s knowledge or assistance. His motivation to lie was to escape the electric chair and was because of personal animosity against Cammarano. An affidavit executed by Potenzo establishing such facts is attached to Cammarano‘s motion.
The trial court discounted Potenzo‘s affidavit because Potenzo had already pled guilty and been sentenced to life imprisonment when he testified against Cammarano in 1985. However, the offer of the plea bargain by the state to Potenzo may well have been based on Potenzo‘s agreement to turn state‘s evidence against Cammarano.
The recantation of testimony by a key prosecution witness may require a new trial, where there is no other strong evidence of a defendant‘s guilt, and where the court determines the verdict likely would have been different, had the witness either not testified or had the testimony at trial been as now recanted. See Jones v. State, 591 So.2d 911 (Fla. 1991); Glendening v. State, 604 So.2d 839 (Fla. 2d DCA 1992); Herrick v. State, 590 So.2d 1109 (Fla. 2d DCA 1991). See also Collins v. State, 423 So.2d 516, 518 (Fla. 5th DCA 1982).
Based on this record, we think the trial court should conduct an evidentiary hearing to make these determinations. At this hearing, it will be Cammarano‘s burden to show why this recantation could not have been uncovered earlier, through the exercise of due diligence. Cf. State v. M.H., 571 So.2d 562 (Fla. 5th DCA 1990). On the face of the current motion, however, we are satisfied with Cammarano‘s allegations that Potenzo only recently decided to change his testimony. Without Potenzo‘s cooperation, any prior interviews with him would not have brought forth his recantation, however diligently his interviewer questioned him. Cf. McCallum v. State, 559 So.2d 233 (Fla. 5th DCA 1990).
Further, we do not think Potenzo‘s possible fabrication of testimony at trial should be foreclosed at this point from consideration via this
REVERSED and REMANDED.
HARRIS, J., concurs specially with opinion.
COBB, J., dissents with opinion.
HARRIS, Judge, concurring specially:
While I agree that the trial court erred in refusing to consider Cammarano‘s 3.850 motion because of the two year time limitation, I do not agree that an evidentiary hearing is necessarily required.
If the court should conclude, based on a review of the record, that Potenzo‘s recantation as evidenced by the affidavit is not credible, then the motion for new trial should be denied. Feagans v. State, 487 So.2d 408 (Fla. 3d DCA 1986). In this case Potenzo‘s testimony at trial was that he and Cammarano decided to rob the bar and kill anyone present. To insure that the car (Cammarano‘s car) would not be seen at the bar, Cammarano parked his car some blocks from the bar and they walked back to the bar to do the robbery. Their pretence to gain entry to the bar was to do plumbing work.1 Cammarano carried a
Cammarano‘s testimony was that they actually went to the bar to do plumbing work and that without warning Potenzo shot the owners of the bar.3 He (Cammarano) ran out of the bar, in shock, about ten seconds before Potenzo. Potenzo was presumably packing the cash into the blue bag during this period. At some point on the way back to the car, which was parked some distance from the bar because either it had run out of gas or was having engine trouble, Potenzo threw the blue bag to Cammarano who caught it by instinct.
Potenzo, by affidavit, now claims that he alone planned and committed the robbery and murder without the knowledge or assistance of Cammarano. The trial court must compare his present position, his previous testimony and the independent evidence previously presented to determine if his recantation is credible.
The independent evidence includes one witness who observed them leaving the bar “at the same time ... as close together as you could be and not run into each other.” They were stopped before they got to the car with Potenzo carrying the gun (Cammarano‘s) and Cammarano carrying the blue bag with the money. The car contained about eight gallons of gas and a test drive revealed no evidence of engine trouble. Cammarano‘s packed suitcase was found in the trunk of the car with his clothes and with the gun cleaning kit and extra ammunition for the gun. Cammarano was unable to explain, if they were at the bar to do plumbing, what happened to his plumbing tools and the plumbing material to do the job.
If the court believes the recanted testimony, before a new trial is granted the court must also believe that the changed testimony would probably result in a different verdict in the new trial. Mitchell v. State, 493 So.2d 1058 (Fla. 1st DCA 1986). This can only be determined from a complete review of the previous trial. I have not attempted to summarize the entire testimony presented at trial. The State presented some twenty six witnesses and the defense presented seven. The summary given is merely to show that the record is extensive and may be sufficient for the court to make its decision without an evidentiary hearing.
COBB, Judge, dissenting.
I would affirm based on the Tipsy Coachman Rule. See, e.g., Carraway v. Armour, 156 So.2d 494 (Fla. 1963); Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), rev. denied, 567 So.2d 435 (Fla. 1990). As shown by the facts outlined in Judge Harris‘s opinion, the instant 3.850 motion is patently frivolous and this case should be put out of its misery.