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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

since the crime. The

since the crime. The photograph of Mr. Riechmann that Ms. Bezner identified as being the man she saw on the night of the crime shows Mr. Riechmann with long hair and is a photograph from shortly before the crime; now Mr. Riechmann has short hair and is older (PC-R2. Def. Ex. F). Mr. Riechmann’s hair in the photograph was a “bleach job” (R. 269, State’s Ex. 11). His hair is not bleached now. The photograph of Ms. Kischnick that Ms. Bezner identified as being the woman she saw shows a woman with blond hair just as she described (PC-R2. Def. Ex. F). Further, the crime scene photographs admitted at trial show Ms. Kischnick with blond hair and gold jewelry as Ms. Bezner stated in her testimony (R.279-278). Thus, the judge’s fact finding that Ms. Bezner’s descriptions of Ms. Kischnick and Mr. Riechmann are empirically inaccurate is simply wrong. As to Ms. Bezner’s testimony being inconsistent with Mr. Riechmann’s testimony, the judge overlooked the fact the jury rejected Mr. Riechmann’s testimony as false. Moreover, Jones v. State contains no requirement that newly discovered evidence must be consistent with all of the defendant’s statements and testimony. The issue is whether her testimony, along with a cumulative analysis of the other evidence presented by Mr. Riechmann, would “probably” cause a jury to have enough reasonable doubt to acquit. See, Jones; Gunsby. 110

Proper evaluation of the evidence shows that Ms. Bezner’s testimony is consistent with the discussion in a police report regarding “Kool” and his being overheard bragging about ripping off and wasting someone. D. Conclusion Ms. Bezner testified about what really happened that night. She was there as a prostitute with her pimp and a drug addict. Her testimony was straight-forward and honest about herself and the life she led. Her testimony illuminated the case and the unexplained made sense. Had the jury heard her testify in conjunction with the undisclosed Brady material, disclosure of Sreenan’s efforts to pressure witnesses into giving false testimony, and the acknowledgment and correction of the false testimony of Smykowski, it undoubtedly would have acquitted Mr. Riechmann; at the very least confidence is undermined in the guilty verdict. The issue is not whether this Court believes the witnesses, but whether the jury probably would have acquitted when considering the cumulative effect of the testimony from the witnesses presented in these collateral proceedings. Light v. State, 796 So. 2d 610, 617 (Fla. 2 nd DCA 2001). CONCLUSION The foregoing authorities, the trial record, evidentiary 111

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