UPDATED: Wrongfully Convicted Caravella Being Freed From Jail

It's a good day for justice. Anthony Caravella, who was wrongfully convicted of the rape and murder of Ada Cox-Jankowski when he was 15 years old, is being freed from the Broward County Jail right now, according to the Public Defender's Office. He's now 41 years old after losing 26 years of his life to a crime he didn't commit.  

Judge Rodriguez-Powell signed a stipulated agreement with SAO and the Public Defender's Office late this afternoon to allow Caravella to go free. "[Chief Assistant Public Defender] Diane Cuddihy is at jail now getting him out," wrote Public Defender Howard Finkelstein in an email, adding one more word: "FREEDOM."

Sun-Sentinel

​UPDATED: While the judge has signed the agreement and Caravella will be released, it will likely be tomorrow (Wednesday) due to a necessary Jimmy Ryce interview with the Department of Corrections.

After the jump you can read Cuddihy's motion to vacate the murder sentence that details the whole sordid case, which was prosecuted by outgoing Judge Robert Carney. In it, Cuddihy details how Carney allegedly withheld evidence from the defense. And here's a little clue from the motion about the state of mind of Miramar police when they were dealing with Caravella, who is mildly retarded and pictured at left:

Investigation has also revealed that the defendant's friend Dawn Simone, was taken into custody for obstruction of justice along with the defendant the night he was arrested on the juvenile pick-up order. She stated that the police were yelling at her and the defendant and they were pulling and tugging the defendant. They were both taken to the Miramar Police Station. The police told the defendant that they would let Ms. Simone go if he told them anything about the murder. At one point, Dawn Simone saw a detective shove the defendant in the back causing him to stumble. She stated that the police were very angry and very threatening. She also heard yelling and what she believed to be the police hitting the defendant coming from the interrogation room. She also advised that after fingerprinting her, the police forced her hand to her face, causing the ink to smear on her face. Ms. Simone was allowed to see the defendant face-to-face without the police. The defendant advised Ms. Simone that she was in a lot of trouble and that he was sorry and he would help her.  That night, the defendant gave his first statement wherein he stated that he was present at the time of the crimes, but did not take part in the murder or rape. Dawn Simone was released that evening to the custody of her mother, Donna Simone. Dawn Simone did not testify at the motion to suppress or trial.  Dawn Simone was available and willing to testify to the above facts at all times.

13. Additionally, Dawn Simone will testify that she and the defendant were transported to the police station in the same vehicle and the police kept asking the defendant if he had burglarized any of the houses they were passing and the defendant randomly pointed to houses saying, "I did that one, and that one," and finally the defendant stated that he had "robbed" the detective's mother's house. 

14.  Donna Simone also was not called by trial counsel and was available and willing to testify at all times.  She will testify that she was home when two detectives came to her house to arrest the defendant.  She will testify that the police were upset with the defendant and took him into her garage.  She will testify that they took a phone book with them when they entered the garage and would not let her enter. She heard what she believed to be the police beating the defendant with the phone book. The defendant looked "roughed up" afterwards and the police arrested both the defendant and her daughter Dawn. 
... Over the course of the next few days, the defendant remained in the Juvenile Detention Center and gave two more statements to the police, admitting a greater role in the murder/rape with each statement and finally confessing he committed the crime alone. The defendant was shoved, slapped, hit and otherwise coerced during the course of these statements

Again hit the jump to read the entire chilling motion, including the coaching of Caravella by detectives during his false confession. 

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA

 

State of Florida,     Case No. 84-339CF10A

v.       Judge Rodriguez-Powell
Anthony Caravella,

                                    /

 AMENDED VERIFIED MOTION FOR POST CONVICTION RELIEF

The Defendant, Anthony Caravella, by and through his undersigned counsel, respectfully files this amended motion pursuant to Rule 3.850 Fla.R.Crim.P. (2009) and asks this Court to vacate the judgment of conviction and sentence rendered in this cause.
This case involves two tragedies; first, the horrific murder of Ada Jankowski, and second the wrongful conviction and nearly 26 year incarceration of Anthony Caravella.  This amended motion is brought after the receipt of DNA results that prove Caravella is innocent of the crimes for which he was convicted at 16 years of age. 
INTRODUCTION
1.  Ada Jankowski was found dead by an adult by-passer on November 4, 1983 in a field outside Miramar Elementary School.  She had been sexually assaulted, strangled with a ligature from behind, and stabbed 29 times. (TT 1084; 1086; 1097)  The police had no leads and made no arrest. 
2.  The defendant was arrested on an unrelated juvenile charge on December 28, 1983.  He was fifteen-years-old at the time of the arrest. He was indicted for first degree murder and sexual battery in the death of Mrs. Jankowski.  The only evidence against the defendant were four recorded statements  and one oral statement made over a 5 day period while he was in custody on the juvenile charge.  Each statement was different from the others and drastically contradicted the physical evidence in the case.
3.  Evidence presented at a motion to suppress established that the defendant was mentally retarded with a full I.Q. of 67. (TT 495) At trial the medical examiner testified to a dual cause of death, strangulation and multiple stab wounds. (TT 1086)  A serologist testified that semen was present in the victim's vagina. (TT 1129) A woman who lived near the school testified that she heard two screams around 2:45 a.m. the morning the body was discovered. 
4. The defendant was convicted and sentenced to life.  His conviction was affirmed on direct appeal. Caravella v. State, 485 So. 2d 833 (table) (Fla. 4th DCA 1986).
5.  This is an amended motion filed after receipt of exonerative DNA results.  The DNA results fatally undermine the state's case against the defendant.  They prove that he admitted to acts he did not commit.  The DNA results expose the defendant's statements for what they were- unreliable, coerced and false.  The state tenuously constructed its entire case with this now unbelievable and implausible evidence.
6.  The defendant was represented at trial by then Special Assistant Public Defender T. Don Tenbrook and on direct appeal by the Office of the Public Defender, 15th Judicial Circuit. 
7.  Through stipulation between the state and the defendant, the former trial court (Judge Tobin) ordered DNA testing.  Several items were submitted for testing, including vaginal and rectal swabs and slide from the victim.  On October 18, 2001, the The Broward Sheriff's Office Crime Lab submitted a report stating that it did not obtain a DNA profile from the sperm fractions found in the victim's vaginal, oral, or rectal swabs or smear slides.
8.  On March 31, 2009, this Court entered stipulated orders directing certain evidence be sent to Forensic Science Associates for further DNA testing at defense expense.  The court ordered the transport of the victim's vaginal, oral and rectal swabs and smear slides, fingernail clippings from the victim, public hair combings and DNA standards from the victim.  A DNA standard from the defendant was also provided.
9.  On August 27, 2009, Forensic Science Associates submitted a report stating that a DNA profile of the male perpetrator was retrieved from the sperm on the vaginal swabs and that this DNA evidence conclusively eliminates the defendant as the sperm donor.  Thus, the defendant did not commit the sexual battery/murder of Ada Jankowski.  The report was received September 2, 2009.
10.  The state prosecuted the defendant as the sole perpetrator of the sexual battery/murder of Ada Jankowski. (TT 973; 974; 976; 982; 1827;1828) The only evidence against the defendant was his four taped statements and one oral statement to the police wherein he eventually admitted raping and stabbing the victim.
11.  Investigation has revealed that the defendant was threatened with the arrest and prosecution of his friend, Dawn Simone, was promised and received face-to-face visitation and with Simone in exchange for giving a statement, and was beaten, pushed and slapped by the police.
12. Investigation has also revealed that the defendant's friend Dawn Simone, was taken into custody for obstruction of justice along with the defendant the night he was arrested on the juvenile pick-up order.  She stated that the police were yelling at her and the defendant and they were pulling and tugging the defendant.  They were both taken to the Miramar Police Station.  The police told the defendant that they would let Ms. Simone go if he told them anything about the murder. At one point, Dawn Simone saw a detective shove the defendant in the back causing him to stumble.  She stated that the police were very angry and very threatening.  She also heard yelling and what she believed to be the police hitting the defendant coming from the interrogation room.  She also advised that after fingerprinting her, the police forced her hand to her face, causing the ink to smear on her face.  Ms. Simone was allowed to see the defendant face-to-face without the police. The defendant advised Ms. Simone that she was in a lot of trouble and that he was sorry and he would help her.  That night, the defendant gave his first statement wherein he stated that he was present at the time of the crimes, but did not take part in the murder or rape.  Dawn Simone was released that evening to the custody of her mother, Donna Simone.  Dawn Simone did not testify at the motion to suppress or trial.  Dawn Simone was available and willing to testify to the above facts at all times. 
13. Additionally, Dawn Simone will testify that she and the defendant were transported to the police station in the same vehicle and the police kept asking the defendant if he had burglarized any of the houses they were passing and the defendant randomly pointed to houses saying, "I did that one, and that one," and finally the defendant stated that he had "robbed" the detective's mother's house. 
14.  Donna Simone also was not called by trial counsel and was available and willing to testify at all times.  She will testify that she was home when two detectives came to her house to arrest the defendant.  She will testify that the police were upset with the defendant and took him into her garage.  She will testify that they took a phone book with them when they entered the garage and would not let her enter.  She heard what she believed to be the police beating the defendant with the phone book.  The defendant looked "roughed up" afterwards and the police arrested both the defendant and her daughter Dawn.
15.  Investigation has revealed that Dawn Simone was again contacted by the detectives and brought by them in a police car to the Miramar Police Station.  She was told that the defendant agreed to give a statement if he was allowed to see Ms. Simone.  She said that they were again very angry and threatening and told her that she had to go with them.  Ms. Simone had a face-to-face visit with the defendant. The defendant gave another statement. 
16.  Over the course of the next few days, the defendant remained in the Juvenile Detention Center and gave two more statements to the police, admitting a greater role in the murder/rape with each statement and finally confessing he committed the crime alone. The defendant was shoved, slapped, hit and otherwise coerced during the course of these statements.
VERFIED MOTION FOR POST CONVICTION RELIEF
17.  The allegations contained in the defendant's Verified Motion for Post Conviction Relief are reasserted in this motion.  Specifically, those allegations are:
a. On October 28, 2002, undersigned counsel was contacted by Assistant State Attorney Carolyn McCann regarding an audio tape she had discovered while reviewing the state's file in this cause.
b. That audio tape recorded a phone conversation of January 17, 1984, wherein Jorge Delgado admitted to Miramar Police Detective Mantesta that he committed the homicide with the defendant. (Detective Mantesta was one of the arresting and interrogating officers of the Defendant.  Detective Mantesta had already arrested the defendant for the rape murder of the victim after extracting five different statements from the defendant.)
c. Detective Mantesta asked Delgado if he understood what he was saying.  When Delgado answered affirmatively, Detective Mantesta advised Delgado that he would immediately come to his home.  Despite knowing that the conversation was being taped, Detective Mantesta did not engage Delgado in further conversation and rushed him off the phone.  These facts are highly suspect and would have been used to question Mantesta's investigation and his motives.
d. The audio tape, although delivered to and received by the state attorney, was never disclosed to the defendant or his counsel, despite the defendant's written discovery demand and demand for Brady evidence.
 
e. The audio tape is critical for impeachment because Detective Mantesta, who is recorded speaking to Jorge Delgado, did not file a supplemental report regarding that conversation with Delgado or conduct any follow-up investigation.  The lack of any follow-up reveals the inadequate investigation conducted by the police and calls into question their decision to charge a mentally retarded 15-year-old juvenile who gave coerced conflicting and confused statements that contradicted the physical evidence in the case.  The case was a high profile case and the police were under pressure to arrest someone for this murder. 
f. The state's failure to disclose the tape to the defense violates its discovery obligation under Brady v. Maryland, 373 U.S. 83 (1963), United States v. Bagley, 473 U.S. 667 (1985) and Florida Rule of Criminal Procedure 3.220.
g.  An evidentiary hearing was previously ordered on this count.
18.  The state's case against the defendant relied exclusively on statements made by the defendant. The trial court noted that if the motion to suppress was granted, the state would be left without a case and the defendant would probably walk free. (TT 342)  The defendant's statements were dissimilar to each other, contradicted the physical facts of the case and were the subject of a motion to suppress.  The motion to suppress was granted in part by Judge Arthur Franza due to the absence of the defendant's mother at the time of the third statement.  Judge Franza entered an order suppressing the third taped statement, but admitting the other four statements. (TT 586-590). 
19.   The defense at trial was quite simple -- Anthony Caravella did not commit the murder and, because of his age, mental capacity and coercive and abusive police tactics, told the police what he believed that they wanted to hear. The DNA results confirm this theory and exonerate the defendant. 
MOTION TO SUPPRESS
THE FIRST TAPED STATEMENT (December 29, 1983 1:25a.m.)
20.  The defendant was arrested on December 28, 1983, at 10:51 p.m. on an unrelated juvenile pick up order two months after the victim's body was discovered. (TT 4;13;1273) Detective Mantesta and Detective Pierson executed the pick up order.  According to Detective Pierson, the defendant was taken into an interrogation room at the Miramar Police Station and asked if he had any knowledge of the murder. (TT 16;1273) The defendant indicated that he knew something about the murder.  A taped statement was then taken in which the defendant informed the detectives that the murder was committed by three juveniles. (TT 37;1279) 
21.  The defendant gave a lengthy recorded statement beginning at 1:25 a.m. on December 29, 1983, two and a half hours after he was arrested.  References to a pre-tape conversation were made during the taped statement.  (TT 36; 67; 71; 84; 104;1280) The defendant stated that he was picked up by three juveniles at 4 a.m., Steve Chappell, "Don" and another boy whose name he did not know. (TT. 45;1280)  He stated that were driving around and observed the victim walking by a canal towards Winn Dixie. (TT 48;1288)  He stated that Steve told him that "we're going to throw this lady in the car," and the defendant responded no. (TT 52;1295)  The defendant related that Steve stated, "C'mon Anthony, we're gonna do something with this girl," and the defendant again said no. The defendant stated that the three juveniles grabbed the victim and threw her into the car and put Steve's shirt in her mouth.  He stated that Steve decided to bring the victim to the school field.  (TT 54;1295;1298)  He stated that the juveniles threw the victim into the back seat next to the defendant.(TT 57-58;1300)  The defendant stated that he told the juveniles he wanted nothing to do with the victim. (TT 57-58;1301)  He told the detective that the three juveniles carried the victim through the gate into the school field and that he went and lay down on a near-by patio. (TT 61-62;1304-1305)
23.  The defendant said that Don pulled out a knife and stabbed the victim. (TT 68;1310)  "Animal" (Steve) asked to stab her also. He said the victim screamed once or twice.  He said, "Then she was really dead.  They kept on stabbing her." (TT 68;1310) The defendant said they were using a "big butcher knife, big butcher knife.  A carving knife, yeah." (TT 69;1311-1312) The defendant was then asked, "It wasn't -- it couldn't have been a steak knife?" He responded, "That's what I'm talking about. Big long, long knife."  The detective replied, "I'm not talking about a hunting knife now.  You didn't get a close look at the knife, did you?" (TT 69;1312) (Expert medical testimony established that the stab wounds were consistent with a kitchen steak knife. TT 1061)
24.  The defendant stated that they took all of the victim's clothes off and she was completely nude. (TT 71;120;1313) The following exchange occurred:
Q.  All right. How did they rape her? Did they take all of her clothes off?
A.  Yeah, they did.
Q.  They took every bit of her clothes off?
A.  Uh-huh.
Q.  All of it?
A.  Yeah.
Q.  Her pants completely off? And her blouse and shirt was off, you know, she was totally nude or what?
A.  Yeah.

(TT 71;1313) Because this description did not match the physical evidence, the detective addressed the victim's clothing again:
Q. Was all her clothes off of her body?
A.  At the time, yeah.
Q.  She was laying there completely nude with not clothes on at all?
A.  Yeah.
Q.  You're sure of that?
A.  I know, yeah, I'm sure.
Q.  Your sure that they just didn't pull her--her shirt up to her arms and didn't get it completely off?
A.  No.

(TT 120;1313) The defendant said that Don stabbed the victim once, Steve stabbed her a few times and the third juvenile stabbed her three times in the chest. (TT 76-77;1318-1319)  He did not see the victim stabbed anywhere but the chest.  (TT 77;1319) He responded to a question regarding the victim's face and said that the third juvenile slapped her in the face with the knife. (TT 78;1320-1321) He stated that Don threw the knife after the victim died. (TT 80;1322-1323)  The defendant said that he did not see a chair lying around. (TT 102; 1343) He stated that Don held the victim by the neck, but she was not choked. (TT 116; 1357) He described the victim as taller than his 5'10 to 6' frame (TT 124-125;1364)
ORAL STATEMENT (December 30, 1983)
25.  The defendant agreed to take a polygraph test and was interviewed by Broward Sheriff's Office polygraphist Sergeant Anthony Fantigrassi. (TT 351;1398)  This interview was not recorded.  After Fantigrassi decided that the defendant's answers showed deception, he conducted another non-recorded interview.  Fantigrassi testified that the defendant admitted to striking the victim several times and kicking her when she fell down. (TT 359;1410-1411)  He stated that the defendant admitted to pinning the victim down by placing his forearm across her neck and that he pulled up the victim's shirt exposing her breasts. (TT 359;1411).  He said that the defendant first told him the other boys raped the victim but he did not, and later admitted to having sex with the victim.  However, he admitted to stabbing the victim. (TT 360;1412;1414)  He stated that the defendant also admitted that the victim had been hit with a chair. (TT 361;1414)
 THE SECOND TAPED STATEMENT (December 30, 1983 5:00p.m.)
26.  On December 30, 2003, the defendant again spoke to the police. He stated that he met Steve after 3 a.m. (TT 189;1484) He, Steve and Don discussed raping and killing someone. (TT 191;1487;1491)  They went to pick up the juvenile whose name he did not know. Don showed them his knife. (TT 207;1487;1500) He initially stated that the victim was choked, but later, when asked directly if she was choked at all, said no. (TT190; 219;1512) He stated that everyone got out of the car and threw the victim in. (TT 2081502-1504) He said that they brought her to the school field and started hitting her. (TT 214;1507)  Steve hit her with a chair, but he was unaware of chair being damaged. (TT 214-215;1507)  He said that Don and Steve took off the victim's clothes. (TT 216;1509)  The defendant stated that he took off the victim's shirt up to her shoulders. (TT 216;1509)  He said that Don, Steve, the other juvenile and the defendant all had sex with the victim and stabbed her. (TT 217;221;1510)  He said the victim was stabbed about 40 times. (TT 221;1514) He stated that the victim was taller than him. (TT 232;1525)
 THE THIRD TAPED STATEMENT (January 3, 1984 - SUPPRESSED)
27.  On January 3, 1984, the defendant gave a third statement wherein he stated that Steve Chappell was not present during the abduction or murder, but that the defendant had implicated him because he was angry with Chappell.  (TT 262; 306) The defendant stated that the other two individuals were involved. (TT 263) He stated that they ran out of gas and were walking when they encountered the victim. (TT 265)  They hit the victim with a bottle over the eye. (TT 265)  He stated that they picked her up and brought her to the school. (TT 265)  They threw her down and began beating her. (TT 266) Don hit the victim with a chair. (TT 267) When asked what happened to the chair, he stated that it was left there. (TT 267)  The other two raped the victim; the defendant did not. (TT 267) He stated that they took her pants completely off, but left her shirt on halfway. (TT 268) The detective asked specifically if they took her pants completely off and he responded "yeah." (TT 268)  All three stabbed the victim. (TT 269-270) The defendant said that he stabbed the victim in the heart and she started screaming again. (TT 270) He stated that the victim was stabbed in the shoulder, chest, stomach and face. (TT 271-273)The defendant stated that he saw Jorge Delgado that night and had gotten the knife from him. (TT 283) He said that the knife shown him by the detectives was not the knife used in the homicide. (TT 277) The defendant gave descriptions of the other juveniles and stated that he knew where they lived. (TT 307)
 THE  FOURTH TAPED STATEMENT (January 4, 1984)
28.  On January 4, 1984, while driving around with the detectives to show them the residences of the other juveniles, the defendant stated that he was lying about the others.  He stated that he committed the crime alone. (TT 313; 321;1636) He was taken to the Miramar Police Department and gave a taped statement wherein he stated that he encountered the victim walking down the street, asked her the time and was angered when she ignored him. (TT 400;1615)  He stated that he hit her over the head with a glass Pepsi bottle and dragged her into the school field. (TT 405;1615-1619) He stated that the victim was five foot something, but not as tall as him. (TT 410;1623)  He stated that he hit the victim with the leg of a folding chair. (TT 424-425;1636) He did not hit the victim with the back of the chair. (TT 425;1637) He did not hit the victim with her chain, but broke it and threw it. (TT 426;1638) It was not difficult to break the chain off the victim's neck. (TT 426;1638) He ripped off the chain after he finished raping and stabbing the victim. (TT 444; 1656) He stated that he took the victim's pants completely off.  The detective asked if he pulled the victim's pants all the way down or partially down. (TT 427;1640) He responded, "all the way down."  The detective again asked if any section of the pants remained on the victim and he replied "no."  (TT 428;1640) Her shoes were not on and he did not know how they came off. (TT 428-429;1640)  He stated that he took off the victim's underwear, pulled her shirt up and ripped off her bra. (TT 431;1641-1642) He stated that he had vaginal sex with the victim but did not ejaculate. (TT 433-434;1646)  He said that he stabbed the victim.  He agreed with the detective when asked if he stabbed the victim in the back, shoulder, face and stomach. (TT 436;1648) He said that he did not stab her in the neck.( TT 442;1654) He stated that he stabbed her in the top of the buttocks. (TT 442;1654) When asked, he said that he "could have" stabbed the victim between her legs, but that he was stabbing her in the back. (TT 442;1654)  He said that he did not slash the victim's face. (TT 447;1659) He stated that nothing happened to the knife, he just wiped the handle. (TT 453;1659;1665) He testified that he did not choke the victim. (TT 409)
 PHYSICAL EVIDENCE
29.  The knife used to stab the victim was broken. (TT 1022; 1025) The knife handle was found east of the victim's body and the blade was under the victim's foot. (TT 1017) A broken cafeteria style chair, not a folding chair, was found next to the victim's body. (TT 1016;1030;1040) The victim's pants were removed from the body with the exception of the right leg. (TT 1035) The right pant leg was pulled over the right shoe. (TT 1035) The victim suffered 29 stab wounds. (TT 1084) She was stabbed in the face, neck, abdomen, back, pubic region and anus. (TT 1060-1075) She died from strangulation, consistent with the use of a ligature from the back, and multiple stab wounds. (TT 1086;1097) It would have taken four minutes to effect death by strangulation. (TT 1094) There was intact sperm on the vaginal swab, which confirmed an ejaculation within 24 hours. (TT 1129;1169) Both the victim and the defendant had type A blood. (TT 1131;1144)
ARGUMENT
I.  WHEN VIEWED IN LIGHT OF THE EVIDENCE PRESENTED AT TRIAL, THE NEWLY DISCOVERED DNA EVIDENCE PROVES THAT CARAVELLA IS INNOCENT AND UNDERMINES CONFIDENCE IN THE VERDICT.  SUCH EVIDENCE IS ADMISSIBLE AND PROBABLY WOULD PRODUCE AN ACQUITTAL ON RETRIAL.

30. In order to obtain relief based on newly discovered evidence of innocence, a defendant must demonstrate new facts (1) that were "unknown by the trial court, by the party, or  counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence," and (2) that if considered by the jury are "of such a nature that it would probably produce an acquittal on retrial."  Jones v. State, 591 So.2d 911, 915-16 (Fla. 1991).  In making this determination, the Court "will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial."  Jones, 591 So.2d at 916.  As the Supreme Court of Florida recently explained, the Jones standard is met when the newly discovered evidence "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability."  Williamson v. State, 961 So.2d. 229 (Fla. 2007). The newly discovered DNA results, which show conclusively that someone other than Caravella deposited sperm inside the victim while she was being raped and stabbed to death, certainly create reasonable doubt about the defendant's guilt. Had this evidence been available at the time of Caravella's trial, he probably would have been acquitted. Jones v. State, 591 So.2d 911, 915-16 (Fla. 1991). As a result, Caravella's conviction and sentence must be vacated.
A.  THE DNA EVIDENCE CONSTITUTES ADMISSIBLE NEWLY DISCOVERED EVIDENCE AS DEFINED BY RULE 3.850 AND JONES V. STATE

       31. The exonerative DNA results were unknown by the court and the parties at the time of trial in 1985.  Indeed, DNA testing was not a generally accepted science in Florida courts until 1988.   A defendant may request DNA testing "at any time."  Fla.Stat.925.11; Fla.R.Crim. P. 3.853.  Favorable results from DNA testing ordered pursuant to Rule 3.853 are cognizable as newly discovered evidence in a motion for new trial pursuant to Fla.R.Crim.P. 3.850, provided that it is presented to the Court within two years of the date on which the results are received.  Fla.R.Crim.P. 3.850(a),(d).  Because this motion is filed within two years of the date of the report provided by Forensic Science Associates, it is timely filed and satisfies the first prong of the Jones standard.
B.  THE NEWLY DISCOVERED EXONERATIVE EVIDENCE IS ADMISSIBLE AND PROBABLY WOULD PRODUCE AN ACQUITTAL ON RETRIAL.

 32. Caravella was convicted based entirely on the confused, coerced and conflicting statements made to police wherein he admitted to sexual battery and murder.  On august 27, 2009, Forensic Science Associates issued a report that established that the sperm found in the victim's vagina, deposited there during the crime,  was not from Caravella.  The DNA profile obtained from the vaginal swab did not match Caravella's DNA.  This conclusively proves, according to the state's theory of its case, that the defendant did not rape and murder the victim.  The state's entire case was built on then Anthony Caravella's statements wherein he admitted to raping and stabbing the victim.
 33.   Yet, the defendant's confused statements are both intrinsically and extrinsically inconsistent.  He admitted to several very divergent accounts of the murder.  Moreover, his versions of the murder do not comport with the physical evidence of the crime.  The police were aware of these contradictions as evidenced by their repeated attempts to lead the defendant into statements consistent with the physical evidence.  The defendant denied having choked the victim.  The physical evidence established that one cause of death was strangulation with a ligature from behind. The defendant's description of the stabbings does not include stabbing the victim in the neck, vagina or rectum.  The physical evidence established that the victim was stabbed in the neck, vagina and rectum. 
34.  The defendant repeatedly claimed that the victim's pants were completely removed.  The physical evidence established that the right leg of the pants were partially on.  The defendant claimed that the victim's shoes were not on and that he did not know where or how they came off.  The physical evidence established that the victim's right shoe was on.   The defendant initially denied seeing any chair and, after being repeatedly asked about a chair, finally stated that he hit the victim with a chair.  However, he claimed that the chair was a folding chair and that it did not break.  The physical evidence established that the victim was hit with a non-folding cafeteria style chair that broke into two pieces.
35.  Undeterred by these obvious inconsistencies and despite the defendant's clearly diminished capacity, police continued the harsh, coercive interrogation.  They only stopped questioning Caravella when they finally got what they wanted- an admission by the defendant that he raped and stabbed the victim by himself.  The state's reliance on the defendant's statements and prosecution of the defendant as the sole perpetrator demand that his conviction and sentence by vacated. 
36.  The new DNA evidence proves that someone other than Anthony Caravella raped and murdered the victim.  This is not only the strongest affirmative evidence of the defendant's innocence, but it also eviscerates the state's only remaining evidence by conclusively demonstrating that the defendant falsely admitted to a crime he did not commit.  The defendant's confused statements were always highly suspect.  When weighed against the exonerative DNA results and considering the suggestive, harsh, coercive tactics used to obtain these statements, these admissions now have no evidentiary value.  It is an understatement to suggest that the new DNA results would probably produce an acquittal had the jury known about them.  Not only do these results meet the Jones standard, no rational juror could possibly convict Anthony Caravella in light of the exonerative DNA results.  Thus, this Court must vacate the defendant's conviction and sentence, his indictment should be dismissed, and the Defendant should be released from custody immediately.
II.    THE DEFENDANT WAS DEPRIVED HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE THE STATE WITHHELD EVIDENCE THAT WAS MATERIAL, EXCULPATORY, AND IMPEACHING IN NATURE

37.  The defendant's reasserts the claims set forth in his Verified Motion for Post Conviction Relief as follows:
38.  The state failed to disclose exculpatory and impeaching evidence it had knowledge and possession of prior to the defendant's trial.  That evidence consists of a telephone recording made at the Miramar Police Department on January 17, 1984, wherein another individual, Jorge Delgado, confessed to killing the victim Ada Jankowski with the defendant.   The state's theory of the case at trial was that the defendant was the lone perpetrator of the murder.  In addition, the lead detective at no time admitted to defense counsel or the jury that another individual claimed responsibility for the murder of Ada Jankowski.
39.  In Strickler v. Greene, 527 U.S. 263, 281-82, 144 L.Ed. 2d  286, 119 S.Ct. 1936 (1999), the United States Supreme Court enunciated the three components of a true Brady violation as follows:  The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2)  that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued .  Under the prejudice prong, the defendant must show that the suppressed evidence is material.  Id. at 282.  "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine the confidence in the outcome.  In determining materiality, the cumulative effect of the suppressed evidence must be considered. Cardona v. State,  826 So. 2d 968, 973 (Fla. 2002)
40.  In Rogers v. State 782 So. 2d 373, 382, 384 (Fla.. 2001), the court concluded that police reports were favorable to Rogers because they could have been used to show that a person other than Rogers was involved in the robbery with the co-defendant and, therefore, the reports could have been used to impeach the codefendant's testimony at trial. 
41.  In the instant case, the audio tape could have been utilized to show the inadequacies of the police investigation.  The audio tape was material in the motion to suppress because it reveals how readily the police accepted the inconsistent statements of a 15-year-old mentally retarded juvenile, and yet never investigated the confession of another juvenile.  The audio tape would have been critical evidence to impeach Detective Mantesta.  He never pursued the investigation of Delgado and was protective of Delgado.  He did not question Delgado about the murder despite knowing that the conversation was being recorded.  Instead, he rushed Delgado off the phone and advised that he would immediately come to his home.  These facts put the defendant's statements as well as the entire police investigation in such a different light as to undermine confidence in the order denying in part the motion to suppress and the jury verdict. Way v. State, 760 So. 2d 903, 913 (Fla. 2000).
42.  There is no doubt that the state had possession of the audio tape in that it was discovered in the state attorney's file.  Thus the second prong of Bagley is met.
43. The defendant was prejudiced by the state's failure to disclose the audio tape.  The fact that another juvenile confessed to committing the murder, even though he implicated the defendant, was damning to the state's case.  The state proceeded under the theory that the defendant acted alone.  Delgado's confession and the failure of the police to investigate that confession put the whole investigation in question. 
44.  The defendant is entitled to an evidentiary hearing in this matter.  In Floyd v. State, 808 So. 2d 175 (Fla. 2002), the Florida Supreme Court remanded for an evidentiary hearing claims that the state withheld information which would have been used to impeach a witness who testified against him.
CONCLUSION
   45.  "The suppression by the prosecution of evidence favorable to an accused," violates due process.  Brady v. Maryland, 373 U.S. 83, 87 (1963); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Strickler v. Greene, 527 U.S. 263, 281-82 (1999).  Exculpatory evidence that trial counsel unreasonably failed to discover and present to the jury violates the defendant's right to the effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution.  Strickland v. Washington, 466 U.S. 668 (1984). Newly discovered exculpatory evidence that the State failed to disclose or defense counsel unreasonably failed to discover and present nevertheless warrants a new trial under Fla. R. Crim. P. 3.850.   Jones, 591 So.2d at 915-16.  Under all three standards, the defendant must prove prejudice by demonstrating that had the evidence been presented at trial, there is a likelihood that he would have been acquitted.  In all three instances, evidence presented herein must be considered cumulatively with other arguments presented in this motion and other admissible evidence presented during and after trial.  State v. Gunsby, 670 So. 2d 920 (Fla. 1996); Mordenti v. State, 894 So. 2d 161 (Fla. 2004); Sims v. State, 754 So. 2d 657, 660 (Fla. 2000).
The newly discovered DNA evidence proves that the defendant did not commit the sexual battery and murder for which he was convicted and demands that the defendant's conviction and sentence be vacated.  The hidden audio-tape further undermines the reliability of the verdict.  A new trial should be ordered. 
WHEREFORE, movant requests this Court to grant his motion for post conviction relief, vacate the defendant's conviction and sentence, dismiss the indictment against him, and immediately release the defendant.
 

STATE OF FLORIDA         )
COUNTY OF                                     )
Before me, the undersigned authority, this day personally appeared Anthony Caravella, who first being duly sworn, says that he is the Defendant in the above-styled cause, that he has read the forgoing Motion for Post-Conviction Relief and has personal knowledge of the facts and matters therein set forth and alleged; and that each and all of these facts and matters are true and correct.


______________________________
Anthony Caravella

SWORN AND SUBSCRIBED TO
before me this ____ day
of ____________, 2009.    
Produced Identification:
                                                         
_________________________
Notary Public
my commission expires:

Howard Finkelstein
Public Defender
17th Judicial Circuit

______________________________
Diane M. Cuddihy
Florida Bar No. 434760
Chief Assistant Public Defender
201 S.E. 6th Street
North Wing - Third Floor
Fort Lauderdale, Fl. 33301
Attorney for Defendant

 
 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by hand to Carolyn McCann, Assistant State Attorney,  Office of the State Attorney, Broward County Courthouse, Fort Lauderdale, Florida, this    day of September, 2009.

______________________________
Diane M. Cuddihy


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