Filing # 176401527 E-Filed 06/29/2023 07:55:46 AM

IN THE CIRCUIT COURT OF THE FOURTH JUIDICAL CIRCUIT

IN AND FOR DUVAL COUNTY, FLORIDA

STATE OF FLORIDA,
Plaintiff,

v. Case No.: 16-2013-CF-4858

Div.: CR-E
NICHOLAS RIVET,
Defendant.

____________________________________/

DEFENDANT’S WRITTEN CLOSING ARGUMENTS

COMES NOW, the Defendant, Nicholas Rivet, by and through undersigned counsel,

submits the following closing arguments:

PROCEDURAL STATEMENT

1. Defendant was convicted of Second-Degree Murder (Child, While Child’s

Caregiver) in June of 2015. He was sentenced on September 15, 2015 to life in prison.

2. Defendant took a direct appeal to the Florida First District Court of Appeal, which

affirmed his judgement and sentence per curiam on July 25, 2018. The mandate issued

December 31, 2018. Rivet v. State, 1D15-4430 (Fla. 1st DCA July 25, 2018). Defendant sought

discretionary review from the Florida Supreme Court. The court declined jurisdiction on April

12, 2019.

3. Defendant, additionally, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus

in the Florida Middle District. The district court is holding Defendant’s petition in abeyance,

pending state court exhaustion of his postconviction claims.

4. Defendant filed the Florida Rule of Criminal Procedure 3.850 Motion for

Postconviction Relief under review on December 14, 2020, raising eleven grounds for relief.

ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 06/29/2023 12:39:48 PM

 5. This Court entered an interim order on September 10, 2021, directing a response

from the State to grounds two, three, four, five, and eight of Defendant’s postconviction motion.

6. The State tendered its response on November 5, 2021, and the Court, thereafter,

ordered an evidentiary hearing for grounds three, four, five and eight.

7. The hearing was bifurcated. The first half was conducted on January 20, 2023. The

hearing was completed on April 17, 2023. At the close of evidence, the Court stated it would

permit the parties to submit written closing arguments, which Defendant Rivet, now respectfully

tenders:

LEGAL STANDARDS

Claims concerning the Sixth Amendment right to effective assistance of counsel are

governed generally by the United States Supreme Court’s holding in Strickland v. Washington,

466 U.S. 668 (1984). The analysis has two components. To demonstrate that counsel was

constitutionally ineffective, a defendant must first demonstrate, that “counsel’s representation

fell below an objective standard of reasonableness,” under “prevailing professional norms.”

Strickland, 466 U.S. at 688.

Under the second prong of the analysis, a defendant must demonstrate a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. The Supreme Court explained that a “reasonable probability,” is a

“probability sufficient to undermine confidence in the outcome.” Id. Under these guidelines, a

reviewing court will defer to a trial court’s finding of fact if such findings are supported by

competent substantial record evidence. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.

1999). A trial court’s application of the law to the facts before it for consideration is reviewed de

novo. Parenti v. State, 225 So.3d 949, 951 (Fla. 5th DCA 2017).

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 The Eleventh Circuit Court of Appeals has refused to adopt a “credit counsel in case of

conflict” rule where, in any case where the issue comes down to the bare-bones testimony of

counsel, the “defendant is going to lose every time.” Gallego v. U.S., 174 F.3d 1196 (11th Cir.

1999).

Fla. R. Crim. P. 3.850(b)(1) requires that “the facts on which [a] claim is presented [be]

unknown to the movant, the movant’s attorney and could not have been ascertained through the

use of due diligence, and the claim is made within 2 years of the time the new facts were or

could have been discovered with the exercise of due diligence.”

Next, the evidence presented must be “of such nature that it would probably produce an

acquittal on retrial.” Jones v. State, 591 So.2d 911, 915 (Fla. 1991) (Jones I). In making this

determination, a trial court is required to “consider all newly discovered evidence and the

evidence which was introduced at the trial and then evaluate the weight of both the newly

discovered evidence and the evidence which was introduced at trial.” Id. at 916. (emphasis

added).

In determining the second prong above, the trial court should consider whether the

evidence would have been admissible at trial, or if there would have been any factor militating

against its admission. Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (Jones II). “Once this is

determined, an evaluation of the weight to be accorded the evidence includes whether the

evidence goes to the merits of the case or whether it constitutes impeachment evidence.” Id. at

521 (citing Williamson v. Dugger, 651 So.2d 84, 89 (Fla.1994).

The court should also determine whether the evidence is cumulative compared to other

evidence in the case. And, the materiality and relevance of the newly discovered evidence should

be considered, as well as whether the newly discovered evidence bears any inconsistencies. Id.

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 Defendant included newly discovered evidence in his postconviction motion, an affidavit

from Jacob Langer regarding observations he made of Brandi Robb and her actions on the way to

the hospital when Eddie Robb was being airlifted.

ARGUMENT

“I feel guilty about it because if I was there, you know, we wouldn’t be here.”

-Jacob Langer, January 20, 2023.

This argument is tendered with the understanding that the Court is conversant with the

relevant evidentiary facts adduced at the bifurcated hearing. If the Court wishes to receive a

written iteration of the facts, Defendant is prepared to submit one.

It is fair to say that Eddie Robb’s death baffled law enforcement and the State from the

very start of this case. Only two people realistically could have murdered him: Defendant or

Brandi Wood. Both had ample means and opportunity.

Ms. Wood indisputably used corporal punishment to discipline her children and was

witnessed slapping Eddie on more than one occasion. Ms. Wood concocted a plan to lie to law

enforcement about her relationship with Defendant while her son was still in the air on the way

to the hospital. Ms. Wood stopped on the way to the hospital, claiming that she needed gas for

the trip, but the evidence adduced at the hearing reveals a much more sinister motive—one that

proves Ms. Wood is the killer of Eddie Robb. And Ms. Wood’s laughter could be heard

throughout the case. On the way to the hospital, at the hospital, on Beowulf calls with Defendant,

at the Mayport Lounge while dancing and partying days after Eddie’s death. She laughed and

laughed.

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 Defendant, by contrast, had no history of violence toward anyone, child or adult. He was

an honorably serving member of the United States Navy, and he was raising his own two

children on his own at the time Eddie was murdered.

The State’s theory of the case has been the same since day one: That Defendant was the

last person alone with Eddie before he was discovered in distress. Along the way, the State lost

critical evidence, which it downplayed at trial. The State and the Navy embedded investigators

with Defendant while he was on active duty in an effort to obtain more information about what

happened, but he never made a single inculpatory statement.

The State admitted at trial that it could have gone either way. In other words, either Ms.

Wood or Defendant could have been charged for Eddie’s murder, since the only evidence anyone

had regarding its commission was wholly circumstantial—until now.

Defendant presented a hybrid claim of ineffective assistance of his trial counsel and a

concurrent newly discovered evidence claim. Each facet of his claim requires consideration

under the proper standard. For his ineffective assistance of counsel claim, he must demonstrate

prejudicial actions or omissions by his counsel. For his newly-discovered evidence claim

Defendant was required to demonstrate that (1) Neither he, his trial counsel, or the trial court

knew the information provided by Mr. Langer, and he could not have discovered the evidence by

due diligence; (2) that the evidence would have been admissible either as substantive or

impeachment evidence; and (3) Defendant would have been acquitted or received a less severe

sentence had the evidence been introduced.

Defendant addresses each facet of his claim in turn. First, Defendant asserted that his

counsel was ineffective for failing to personally interview Jacob Langer to obtain favorable

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information for the defense that Mr. Langer saw Ms. Wood throw away children’s clothes at the

Kangaroo filling station while her son Eddie Robb was being airlifted to the hospital.

Both Mr. Stone and Ms. Thibodeau admitted that they both would have been very

interested in Mr. Langer’s testimony if they had learned about it at the time of trial. Both

attorneys, however, admitted to not ever speaking with Mr. Langer personally even though Mr.

Stone listed him as a defense witness. Mr. Stone, instead relied on his defense investigator’s

report to determine whether he should speak to Mr. Langer, and upon a report authored by JSO

Detective Kevin Mesh. Mr. Stone admitted that he deposes and interviews State witnesses “one

hundred percent” of the time and does not rely solely on written statements in police or

investigative reports. He admitted that he does this because a witness may have additional

helpful information not contained in an investigator’s report that was either overlooked or

intentionally omitted.

But Mr. Stone decided it was fine to rely solely on reports in Defendant’s murder case.

He explained it this way: “[W]e can’t do every single thing in every case.” Faced with a difficult

case, Mr. Stone assembled a team, delegated various tasks to his subordinates, and “hoped” that

everyone would do their job. At no time in the case did he speak or communicate directly with

Mr. Langer in order to exercise his professional judgment regarding Mr. Langer’s viability as a

potential witness. This, despite his self-professed understanding of the seriousness of the case.

Mr. Stone did evaluate whether he believed Amanda Buckley would be a better witness

than Mr. Langer. He agreed with the State’s dubious theory that the jury would have accorded

more weight to Ms. Buckley’s testimony as a former friend of Ms. Wood’s than Mr. Langer’s

more disinterested observations. Mr. Stone admitted that Mr. Langer made statements about Ms.

Wood to Detective Mesh that were favorable for the defense and that were in accordance with

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the defense strategy to go after Ms. Wood’s character at trial and to highlight her actions after

Eddie was murdered. To the extent, however, that Mr. Stone relied on Detective Mesh’s report

without independently assuring himself of what the substance of Mr. Langer’s testimony would

be, the decision not to speak to Mr. Langer was deficient performance.

The State points to Detective Mesh’s report, the testimony of Shelley Thibodeau, and Mr.

Stone in an effort to prove that Mr. Langer never mentioned seeing Ms. Wood throw away a bag

containing children’s clothing at the Kangaroo, but as Mr. Langer himself stated, he did not

ascribe much significance to what he saw until years later when he learned of Defendant’s

conviction:

I wasn’t really thinking about anything except for getting to Eddie at that
time, you know, because he was kind of the only thing that was important
at the moment, in my mind.

The State has not proven that Mr. Langer did not tell Detective Mesh about Ms. Wood

throwing away children’s clothing. It could be that Mr. Langer mentioned it in passing,

considering that he had not yet comprehended the importance of what he witnessed. It could be

that Detective Mesh decided that this detail was not important enough to include in his report. At

the hearing Detective Mesh admitted that he was reviewing notes he typed months after his

interview with Mr. Langer, and that he destroyed his written notes. If Detective Mesh noted Mr.

Langer’s statements about Ms. Wood throwing something away at the Kangaroo. He may have

decided not to include them in his official typewritten version, especially where Mr. Langer

himself was not aware of the importance of what he was seeing. Whatever the reason for the

defense team’s blindness regarding Mr. Langer’s potential value as a witness, we know now

what he witnessed, and we know the direct implications of what he saw Ms. Wood do at the

Kangaroo filling station. Mr. Stone and the State attempt to lay the blame for not speaking to Mr.

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Langer at trial time at Defendant’s doorstep, claiming that if he had information about Mr.

Langer’s observations, someone should have brought it to Mr. Stone’s attention. The State,

however, has it backwards. It was Mr. Stone’s duty to at least speak to Mr. Langer once before

discounting him as a witness in favor of Amanda Buckley. It was Mr. Stone’s duty to exercise

his professional judgment in deciding whether to call Mr. Langer, and he admitted that it is

unreasonable to rely solely on investigative reports with the stakes as high as they were in the

present case. His actions were deficient.

Regarding prejudice, the record in this case demonstrates that this was not a clear-cut

case in terms of culpability. There was simply no direct evidence of what happened on the day

Eddie Robb was murdered. Mr. Stone was aware, however, of a salient fact he admitted at the

hearing: The clothing that Eddie Robb wore before being changed into his pajamas could

answer, with finality, the question of whether Ms. Wood was her son’s killer because if the

clothes exhibited evidence, such as blood evidence, that Eddie’s injuries were inflicted before he

was changed, only one conclusion is supported. Mr. Stone correctly noted that he pointed this out

to the jury. The State’s response was to literally tell the jury that Eddie’s day clothes were a

minor detail in the case, that the police are very busy, and if they overlooked the day clothes –

too bad.

We have now learned from Jacob Langer why Ms. Wood stopped at the Kangaroo. We

know why she hurried to Defendant’s vehicle at 9:00 p.m. before anyone else knew Eddie was

fatally injured to ostensibly bring a diaper bag to the car. The evidentiary hearing in the case is

the very first time Brandi Wood has ever admitted on the record that she went to Defendant’s

vehicle before Eddie was known to be hurt. She previously denied ever going outside before the

paramedics got there. Investigator Randy Justice, however, interviewed Lee Buckley and his

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mother, both of whom stated that Brandi Wood hurried out to Defendant’s vehicle and

placed something inside at 9:00 p.m., a time Defendant is proven to have been on the phone

with his mother, and when Ms. Wood previously insisted that she was in the shower.

At the hearing, Ms. Wood admitted to seeing Lee Buckley outside when she “she brought

the diaper bag” to the car. Jacob Langer also testified that he saw Brandi outside before all of the

commotion associated with Eddie’s condition happened. There is only one time that Ms. Wood

could have seen Lee Buckley outside on January 25, 2010, and that time is 9:00 p.m., which is

the only time he was out there according to Mr. Justice’s report—almost two hours before

Defendant discovered Eddie in distress:

MR. FLETCHER: I have just a couple follow-up questions. Ms. Robb, when you took
a bag outside, who was outside when you went out there?

MS. WOOD: I don’t recall off the top of my head. I know that Lee Buckley
was, but I don’t know if anyone else was.

MR. FLETCHER: And do you remember seeing Jacob Langer?

MS. WOOD: I don’t remember seeing him at the time.

MR. FLETCHER: Okay. And it was your testimony that you took – that the bag you
took out was a diaper bag?

MS. WOOD: Correct.

MR. FLETCHER: And do you recall what time that was?

MS. WOOD: No, I don’t.

MR. FLETCHER: Do you remember testifying at trial that it was about 9:00?

MS. WOOD: I don’t recall a time.

Ms.Wood herself confirmed that Mr. Langer was at the Kangaroo:

MR. MIZRAHI Did you end up talking to Amanda Buckley while you were at the
gas station?

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MS. WOOD: Yes. Her and Chelsea and Jake, I believe, were up there.

And the timing is important. In fact, it is the critical issue in this case. Ms. Wood has

repeatedly given differing versions of events regarding the events of the evening in question. But

one thing is clear: If Ms. Wood was outside placing something in Defendant’s car at 9:00 p.m. as

she now admits, whatever she put in Defendant’s vehicle could not have been Eddie diaper bag

because we know that Defendant instructed her to get the diaper bag in the presence of

paramedics just before Eddie was airlifted. And if it could not have been a diaper bag, it is very

likely that Brandi Wood spoliated direct material evidence proving who murdered her son, and

when. For the purposes of this argument, Defendant will concentrate on her trial testimony,

since it is that testimony the jury relied upon in reaching its original verdict.

The parties were in substantial agreement at trial about what transpired during the day,

i.e., what happened before Brandi picked Defendant up from work. She visited her mother with

the children, did some grocery shopping and other mundane tasks until around 7:30 p.m. when it

was time to go get Defendant. She loaded up all four kids and picked Defendant up. It was

adduced that Eddie Robb was non-verbal and appeared distant on the car ride home. Ms Wood

testified that Defendant took his daughter Ava upstairs to bed as soon as they got home, and she

was rocking Eddie in a chair to get him to sleep, having already prepared dinner, which was

waiting on the stove. Defendant came downstairs and made himself a plate. They decided that it

was time for the other children to go to bed. Mason and Logan went up to their room, and Ms.

Wood claimed she continued to rock Eddie, then she took him upstairs and put him on the pallet

they had set up for him. She claimed Defendant was upstairs at that point and that he told her to

“just go,” he would handle putting Eddie to bed. She said that she changed Eddie out of his day

clothes and put him into pajamas before putting him to bed.

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 Ms. Wood claimed that she left Defendant in the bedroom to continue settling Eddie

down. She went to the garage to grab some clothes for a shower and went back upstairs to

shower in the master bedroom. She believed that Defendant had gone downstairs at some point

during this process. She estimated that all of this took place between 8:00 p.m. when Mason and

Logan went to bed, and 8:30 p.m. It is proven by the record that Defendant was on the telephone

with his mother from 8:35 until 8:58 p.m.

Ms. Wood said she watched TV after showering and that Defendant was on the computer.

They heard a commotion upstairs and Defendant went to investigate. He came back and said that

Logan had been making train noises. Ms. Wood, tellingly, estimated that this occurred at 9:00

p.m.

Ms. Wood testified that she continued watching television and Defendant got back on his

computer, that approximately 10 minutes elapsed, and Defendant decided to go back and check

on the children. She claimed he was upstairs long enough that she decided to go check on him.

This is when the infamous, and equally dubious, “thud” allegedly occurred.

Ms. Wood said she heard Defendant in the bedroom telling Eddie to go to sleep, and that

he came out of the bedroom sweaty. He told her he wanted to break up, and she said, “fine.” He

then got back on the computer, she watched some more television, and they decided it was

getting late. Defendant made a final check on the children, which is when he discovered Eddie in

distress.

Investigator Randy Justice prepared an investigative report for Mitch Stone in which he

interviewed Lee Buckley and his mother, who were both outside at 9:00 p.m. on January 25,

2010. Mr. Buckley was smoking a cigarette. He and his mother saw Ms. Wood exit Defendant’s

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residence, hurry to his car and place something inside. Jacob Langer, additionally, observed Ms.

Wood hurrying to Defendant’s car and put something in it.

At the hearing, Ms. Wood admitted for the first time that she went to Defendant’s car on

the night of January 25, 2010. She previously denied ever going to Defendant’s vehicle until

after emergency personnel had arrived, but now she admits going to the car, and she admits

doing so at 9:00 p.m.

But it has never been disputed that Defendant told Ms. Wood to grab Eddie’s diaper bag

after paramedics were already on the scene. Ms. Wood could not have been taking a diaper bag

to Defendant’s car at 9:00 p.m. No less than three witnesses saw her out there at that time, but we

know that Defendant told Ms. Woods to get the diaper bag while paramedics were on the scene.

Defendant now explains what the evidence from the hearing proved, and why he is

entitled to postconviction relief both based upon his counsel’s ineffectiveness and the effect the

newly discovered evidence he presented. Ms. Wood did go to Defendant’s vehicle around 9:00

p.m. but she was not bringing a diaper bag. She knew she had seriously injured her son, possibly

fatally. She knew she had to get Eddie’s day clothes out of the house because she inflicted his

injuries before she changed him into his pajamas. She did not know when Eddie’s condition

would be discovered, but if his day clothes were found inside Defendant’s house, she would be

in serious trouble. So, she hurried out of Defendant’s house around 9:00 p.m. Defendant was

wrapping up a telephone call with his mother. Lee Buckley was smoking a cigarette outside with

his mother when she came out. Jacob Langer was also outside smoking when she came out. She

went to Defendant’s car and placed a plastic Walmart bag containing Eddie’s day clothes inside.

Now she was a step closer to getting rid of the evidence. Her opportunity came when it was

decided she would drive Defendant’s car to the hospital to meet Eddie. She made several calls

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when she left Defendant’s residence that night, to Amanda Buckley and to another number

belonging to a person that has never been identified. Jacob followed Ms. Wood the Kangaroo in

his personal vehicle. He did not ride with, or transport Amanda Buckley to the filling station.

The first thing Ms. Wood did when she exited the vehicle at the well-lit filling station island was

to discard Eddie’s day clothes in a trash receptacle. She then went inside the store, paid for the

gas, laughed and joked with the store clerk, and returned to Defendant’s vehicle.

Mr. Langer saw all this, but he did not think much of it at the time. And why should he

have? He was concerned about Eddie and he was accompanying the child’s mother to the

hospital. He would have had to have been very cynical indeed to have ascribed a sinister motive

to her actions given the operable circumstances at that moment in time. But when he later

learned about Defendant’s conviction from Lee Buckley, the ramifications of what he saw came

crashing home.

Mitch Stone was certainly aware that Eddie’s day clothes were never recovered and what

they could have proven had they been:

So we wanted to know where [this] clothing [was], so that we could have

it analyzed to determine whether anything happened while he was in those
clothes, and we never – we never got an answer to that.

Mr. Stone considered it strange that Ms. Wood would have stopped on the way to the

hospital where her son was being treated for potentially fatal injuries. He learned about the stop

from Amanda Buckley. Ms. Buckley, however, did not mention that Ms. Wood threw away

children’s clothing on the way to the hospital. Mr. Stone mentioned Eddie’s missing day clothes

in the defense closing. He believed the defense had made a “strong” presentation that Eddie’s

injuries had been inflicted prior to his contact with Defendant

[W]e believed that the clothing would have been an essential detail or
evidence that could have revealed some information that supported our

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 position. So the fact that no one had secured … that clothing, and that we
don’t know where that clothing is, was an important feature to argue, that
that was a lack of evidence that the jury could conclude , raise some
reasonable doubt.”

Mr. Langer, additionally, wanted to be called as a witness to share his observations at

Defendant’s trial:

If I would have been called, we could have gotten the surveillance footage
in time from the Kangaroo, and all that, and it would have been seen. You
know, that’s the thing. That’s why I was like: Why wasn’t I
contacted? I believe was contact by [postconviction counsel] about
three-and-a-half, four years ago or something when we started, and
I’ve been trying to do this ever since….

Mr. Langer acknowledged that it was possible that the tightly tied Walmart bag

containing blue sweatpants he saw Ms. Woods throw away at the filling station might be

different from the tightly tied Walmart bag he saw her hurriedly place in Defendant’s car on the

night of the murder before anyone knew about Eddie Robb’s exigent condition, but again, the

facts of the case speak for themselves: There was one bag and it contained the clothes Eddie was

likely wearing when he was murdered. It should also be noted that Mr. Langer’s demeanor,

testimony, and personal history do not support an adverse credibility determination in this case.

He was an honorably serving member of the United States Navy when he made the relevant

observations in this case. He has zero criminal history, and he had absolutely nothing to gain by

taking time off his job to fly thousands of miles to give his testimony in this case. And unlike

Ms. Wood, Mr. Langer has never been accused of having made an inconsistent statement of any

kind in these proceedings. If the Court was to look askance at the credibility of any witness in

these proceedings, it is respectfully submitted that that person should be Brandi Leigh Wood.

And now here we are. Ms. Wood got rid of the only physical evidence linking anyone to

Eddie’s murder and she did so at the Kangaroo filling station. She has already admitted on the

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record that she was willing to lie to law enforcement in an official investigation, and there is no

reason to think she would hesitate to do so again. Especially here, where her credibility is the

only thing between her and being charged with Eddie’s murder.

And she laughed. Once the clothes were safely gone, she went into the store and

laughed—likely with relief. While the rest of the world wrung its hands for years trying to find

out how Eddie was murdered and by whom, Ms. Wood laughed. She laughed on a controlled

Beowulf call with Defendant during the investigation prompting Detective Kevin Mesh to repeat

what his wife Detective Mindy Mesh had already stated in her deposition: That the actions of

Brandi Wood in response to her son’s mortal distress and ultimate death were not the actions of a

mother who had lost her son under such tragic circumstances.

Ms. Woods laughed at the Mayport Lounge days after Eddie’s death. She laughed at the

funeral and the wake. When tried to point out to the jury what the day clothes could have proven

had law enforcement not bungled the investigation. Notably, the blanket from Eddie’s sleeping

pallet was found in the laundry room hamper of Defendant’s residence and was collected for

testing along with the rest of the hamper’s contents. If Ms. Wood changed Eddie out of his day

clothes just before bed as she claims, why where Eddie’s day clothes not in the hamper? Not

only were Eddie’s day clothes never discovered, the State admitted that the police made no effort

to find them. The State, Mr. Mizrahi, told the jury that the day clothes did not matter. They

should ignore them.

Yes, it would have been nice to have his [daytime] clothing earlier, but
that kind of question exits in every case. There has never been a case in
the history of the world that the investigation could not have been better.
A better investigation does not mean an incomplete investigation as to
your abiding conviction of guilt.

By the time [the police] would have figured to take all of his clothing, and
mind you, to determine what was his clothing and what wasn’t his

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 clothing and all that, all that evidence would have been compromised.
Could detectives have thought about it at 3:00 in the morning?

But the State knew as well as Mr. Stone that Eddie’s day clothes were the only physical

evidence likely to shed light on how Eddie was murdered, when he was murdered, and by whom.

As such, it behooved Mr. Mizrahi greatly to tell the jury “Oh well, we didn’t bother to collect

them. Don’t worry about them. Please still convict.” He said the same thing about Eddie’s

pajamas, additional evidence the State possessed, but lost:

…the defense did an excellent job of trying to say, well, [Eddie’s pajamas]
must have had evidence. [The pajamas] could have had evidence. I don’t
think there’s any dispute about that. But would a rug burn automatically
deposit behind blood? No, especially when you’re checking it years
later in the property room, after it’s been dried out a long time….

Spoliation of evidence, clearly, but Mr. Mizrahi told the jury that even if the State had not

lost Eddie’s pajamas, their condition would not have proved anything to them. It is difficult to

credit this argument as having been made in good faith, especially in light of the State’s

admission that it could have gone either way in this case regarding who was ultimately charged.

One way to look at Jacob Langer’s testimony in light of the other facts of this case is by

answering the question of what would have happened if (1) Mr. Stone had taken the time to

speak to Mr. Langer before trial and if he had learned about Brandi Wood throwing away

children’s clothes at the Kangaroo; and (2) the jury learned this information at trial through Mr.

Langer’s testimony.

Defendant must also address any apparent contradiction in his claims that the new

evidence presented in his motion, Mr. Langer’s affidavit, could not have been discovered

through diligence, while at the same time faulting his counsel for failing to personally speak to

Mr. Langer before trial. In Jancar v. State, 711 So.2d 143 (Fla. 2d DCA 1998), the Second

District Court of Appeal confronted similar circumstances, first explaining that because a Rule

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3.850 motion must be sworn, a movant should “exercise caution when contemplating alternative

theories for relief.” Id. at 144. The Second District concluded, however, that where any apparent

contradictions in the claims are not derived from the underlying evidentiary facts alleged in a

postconviction motion, but from “the alternative conclusions that could be derived from a single

set of underlying facts.” Ibid.

Jancar raised two postconviction claims: (1) that he discovered new evidence that his

arrest was illegal; and (2) that his counsel was ineffective for failing to uncover evidence of the

illegal arrest through a reasonable investigation.

The Second District held that Jancar tendered “a facially sufficient claim regarding newly

discovered evidence, or, alternatively, ineffectiveness of trial counsel.” Ibid.

The court held that when a claim of this nature is raised in a postconviction setting, a trial

court must take specific actions in making its determination. Applied to the facts the present

case, under Jancar, this Court must (1) determine if Defendant’s newly-discovered evidence

could have been discovered through due diligence; and (2) if the Court determines that the

evidence could have been discovered through diligence, it must next determine if, given the

significantly exculpatory nature of Mr. Langer’s statements, Mr. Stone’s failure to personally

speak to him as part of a reasonable investigation into the case was an omission that fell below a

standard of reasonableness under prevailing professional norms, and if so, whether Mr. Stone’s

oversight could reasonably be said to have affected the outcome of the proceedings. Ibid.

Defendant respectfully submits that under the above analysis, he is entitled to relief under

either of the theories he has advanced. There is no credible argument available to any entity, be it

the State, or respectfully, this Court, that Mr. Langer’s testimony would not have changed the

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outcome these proceedings by resulting in an acquittal and charges against Ms. Wood for the

murder of Eddie Robb.

And Brandi Wood laughs. The State’s interest in finality is her friend. The complex

evidentiary standards of proof and the difference between what we all know and what can

reasonably said to have been proved in this case—all serve Ms. Wood now and work to her

advantage.

At the hearing in this cause, the Court expressed a desire to “bring this case in for a

landing.” Defendant respectfully submits that he has proved his counsel was ineffective for his

admitted failure to interview and call Jacob Langer, and he has proved through new evidence in

the form of Mr. Langer’s testimony and affidavit that Ms. Wood took actions at the Kangaroo

indicative of consciousness of guilt and that she very likely spoliated critical evidence in this

case. The State offers the Court a cursory couple of pages filled with conclusory statements of

purported “fact.” Given the lack of any real substance in the State’s closing, Defendant will

simply rely on the facts—and the facts prove he did not murder Eddie Robb.

WHEREFORE, Defendant respectfully asks the Court to enter an order vacating his

judgment and sentence and for a new trial.

Respectfully submitted,

/s/ W. Charles Fletcher

W. Charles Fletcher, Esquire
Florida Bar No.: 0125792
233 East Bay Street, Ste. 1020
Jacksonville, Florida 32202
Tel: (904) 570-3527
Attorney for Defendant
fletcherlaw115@gmail.com

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to the Office of
the State Attorney, at SAO4DuvalCriminal@coj.net by e-service this 29th day of June 2023.

/s/ William Charles Fletcher

W. Charles Fletcher, Esquire

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