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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

was coached by

was coached by prosecutor Sreenan. 47 Smykowski’s affidavit indicated that Mr. Riechmann’s trial was more than unconstitutional; it was a farce in which evidence was fabricated to obtain a conviction. Mr. Riechmann argued that this affidavit alone or in conjunction with a previously presented Brady claim warranted a new trial under Gunsby and Kyles. It established a Giglio violation, a Brady violation, and a basis for relief under Jones v. State, 591 So. 2d 911 (Fla. 1991). The postconviction court ordered an evidentiary hearing on the claim premised upon Smykowski’s affidavit. However, Smykowski was located in Dubai, U.A.E., a city on the Arabian Peninsula. Because he was wanted by the U.S. Marshall’s Office, Smykowski was unwilling to travel to the United States. Mr. Riechmann sought to depose Smykowski under Fla. R. Crim. P. 3.190(j), so that his testimony could be presented (PC-R2. 464). Rule 3.190(j) permits a deposition to perpetuate upon the filing of a verified motion to take the deposition, if the 47 Like Officer Veski, Smykowski indicated that Sreenan was responsible for telling him what to say in his testimony. Thus, Veski’s testimony is corroborative of Smykowski’s affidavit. Yet the State successfully argued that Veski’s proffered testimony “has absolutely positively no relevance to the claims that Your Honor has granted an evidentiary hearing on” (Supp. PC-R2. 144). 54

verified motion asserts that the “prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that the witness’ testimony is material, and it is necessary to take the deposition to prevent a failure of justice.” When presented with such a verified motion, “the court shall order a commission to be issued to take the deposition of the witness[ ] to be used in the trial.” Despite the clear requirements of the rule, on January 29, 2002, the circuit court denied the motion to perpetuate Smykowski’s testimony (PC-R2. 15). 48 The motion was orally renewed during the evidentiary hearing (Supp. PC-R2. 262), and again was denied (Supp. PC-R2. 265). The question now is whether Mr. Riechmann was afforded his due process rights when he was denied the means necessary to obtain Smykowski’s testimony and was precluded from 48 The State had opposed the motion to perpetuate relying on Harrell v. State, 709 So. 2d 1364 (Fla. 1998)(PC-R2. 466). At issue in Harrell was “whether or not testimony via satellite in a criminal case violates the Confrontation Clause, and, if so, whether the satellite procedure constitutes a permissible exception.” Id. at 1367. However, the Confrontation Clause was not implicated in the circumstances here since it speaks only to the criminal defendant’s right to confront; the State does not have a constitutional right of confrontation. Nor did the State’s written opposition demonstrate a connection between the discussion in Harrell of satellite testimony and Rule 3.190(j). 55

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