IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, CASE NO 05-2002-CF-63402-AXXX-XX v JEFFREY CHARLES ABRAMOWSKI, Defendant, MOTION FOR POST-CONVICTION RELIEF . COMES NOW Defendant, JEFFREY CHARLES ABRAMOWSKI, by and through his undersigned attorney and files this Motion for Post Conviction Relief pursuant to Florida Rule of Criminal Procedure 3 850 and as grounds would show The judgment and sentence under attack were entered in the Eighteenth Judicial Circuit in and for Brevard County, Florida rs) The judgment of conviction was entered on October 23, 2006 The Defendant was sentenced to life imprisonment s The Defendant was charged with Second Degree Murder wo The Defendant entered a plea of not guilty a The Defendant was tried by a jury, and found guilty as charged Case # 05 2002 CF-063402-AXXX XX es iii pw Ddx The Defendant did not testify durmg any trial proceedings 0 The Fifth District Court of Appeal affirmed the Defendant's Judgments and sentences on December 31, 2007 .° On October 6, 2008 the Defendant filed a Motion for post- conviction relief This motion was dismissed and an amended Motion for post-conviction relief was filed on June 5, 2009 This motion was dened on December 17, 2009 The Defendant appealed and the Fifth District Court of Appeals affirmed on July 27,2010 On December 3, 2010 the Defendant filed a Motion for post-conviction relief On May 5, 2011 the motion was denied On September 7, 2011 the Fifth District Court of Appeals affirmed The Defendant filed a motion for rehearing that was denied by the Fifth District Court of Appeals on December 9, 2011 10 On January 3, 2012 the Defendant filed a Petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Florida 11 The Defendant has no other pending petition, application, appeal or motion in either state or federal court as to this judgment and sentence under attackAt all stages of the trial proceedings, the Defendant was represented by Laura Stemers, 7331 Office Park Place Suite 300, Melbourne, Florida 32940 The Office of the Public Defender for the Seventh Judicial Circuit represented the Defendant with regards to his direct appeal The Defendant's prior motions for post-conviction relief and subsequent appeals were pro se The pending federal Petition for Writ of Habeas Corpus is pro seSTATEMENT OF FACTS According to the tral testimony, Judy Foley was romantically involved with Courtney Crandell She and her son Bruce Foley lived with Mr Crandell in a mobile home On May 12, 2002, Bruce Foley and Mr Crandell became involved in a physical altercation This incident occurred ‘just one week before the murder Mr Foley went to hit Crandell with a golf club People came to the aide of Mr Crandell Bruce Foley fought off two individuals, however, Crandell choked and beat Bruce Foley Foley was able to overcome Crandell and went about hitting him in the head with a golf club Jeffrey Abramowski and other individuals were able to pull Foley off of Mr Crandell The Defendant's actions prevented Crandell from being severely injured As a result of this incident, Judy and Bruce Foley left Mr Crandell’s home and they moved in with Judy’s sister Ruta Aknidge The Foleys testified that Mr Crandell and Bruce made up before Mr Crandell was murdered Shortly before his murder, Mr Crandell also moved into a different residence He moved to a trailer that was a block away from the trailer he had shared with the Foleys Mr Crandell sold Oxycontin He sold his drugs to Bruce Foley and Jeffrey Abramowski According to Bruce Foley, a week or two prior to themurder, Mr Crandell employed Mr Abramowski to go with him and Bruce Foley to Orlando The plan was that Jeffrey and Bruce would each visit a doctor and claim they were in pain Foley and Abramowski obtained prescriptions from two doctors and gave the prescriptions to Mr Crandell Mr Crandell went to the pharmacy and had the prescriptions filled Subsequently, Mr Crandell left Abramowski in Orlando and did not give hum a ride back to Brevard Rita Akeridge testified that two weeks before the murder, Abramowski was mad at Crandell and claimed he said, “he was going to kill that SOB” Akeridge also testified that the Defendant said he was going to rob Crandell of all his Oxycontin and money, but he was not going to hurt him When Crandell’s body was discovered, there were 90 oxycotin pills and $70 in his pocket The body had suffered blunt force trauma to the head, neck, and torso The Defendant was seen at Mr Crandell’s residence on the morning of Saturday May 18, 2002 Mr Crandall was last seen alive at approximately 6 30 pm Saturday May 18, 2002 Mr Crandall’s body was discovered on Monday, May 20, 2002 Bruce Foley and his mother were the original suspects to the homicide Brevard County Sheriffs agents located the Foleys in AlabamaThe Foleys and Ms Akeridge testified that they left for Alabama before the murder There were numerous inconsistencies between the three witnesses as to when they left, who drove, and what route they took to Alabama Without a proper predicate being established, defense counsel failed to object to the introduction into evidence of receipts and hearsay testimony that purported to document the threesome’s travel DNA evidence revealed that Mr Crandell was found clutching Judy Foley’s hair at the time of his death Bruce Foley's blood was located in Mr Crandell's bathroom According to Dr Gary Daniels from FDLE, a small mixture of foreign DNA was discovered under Crandell’s fingernails The Defendant could not be excluded as a source of the DNA that was found under Crandell’s right hand fingernails Candy Zuleger conducted independent testing for the defense Ms Zuleger did not find any foreign DNA under Crandell’s right hand fingernails Defense counsel believed that the Defendant was exonerated by this finding However, defense counsel did not understand that it was likely that Dr Dantels had extracted any and all foreign DNA during the course of his testing Therefore, Candy Zuleger needed to have tested the DNA extracts collected by Dr Daniels in order to confirm or challenge Dr Daniels’ findings Defense counsel did not provide Ms Zuleger with the needed extracts The DNA experts agreed that thediscovered foreign DNA (the Foleys and the Defendant’s) could have come 1n contact with the victim at any ttme The Defendant did not have any signs ‘of myury that could be linked to the DNA finding The Defendant was interviewed by the police and dented any involvement in the homicide The Defendant proceeded to trial maintaining his innocence ISSUE NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO. EFFECTIVE ASSISTANCE OF COUNSEL Attorney Laura Siemers, on December 8, 2011, disclosed for the first time to the Defendant that at the time she undertook representation of the Defendant, she was not taking the medication required to treat her bi-polar illness Ms Stemers disclosed that her mental state at the time of the trial made her incapable of thinking clearly and effectively fulfilling her obligations as trial counsel Steven Wisoker of the Public Defenders Office represented the Defendant, prior to Ms Siemers filing a notice of appearance Mr Wisokerand Ms Siemers were married During the course of Mr Wisoker’s representation of the Defendant, Ms Siemers became interested in the case Ms Siemers has a history of mental illness, having been diagnosed as being bi-polar Ms Stemers had stopped taking her prescribed medication The failure to comply with her medication regiment resulted in Ms Siemers having a manic episode Ms Stemers has sworn out an affidavit (Exhibit 1) to these facts Psychologist, Dr William Riebsame has written a letter (Exhibit 2) that explains bi-polar illness Dr Ruebsame’s letter also explains the complications an attorney would have in thinking rationally when they are in the midst of a manic episode While in this manic state, Ms Siemers became convinced that the Defendant was innocent She became convinced that her husband was not effectively representing the Defendant and she became convinced that she needed to take over the representation of the Defendant in order to ensure his acquittal Ms Siemers, while in this manic state, unsolicited, went to the jail and met with the Defendant She told the Defendant that she was married to Mr Wisoker She told the Defendant that she knew he was innocent She told the Defendant that her husband was not a good trial lawyer She told theDefendant that she was a good aggressive private trial lawyer and she believed in him Ms Stemers told the Defendant that she was willing to take his case for free because she knew he was innocent and she knew she could help him Ms Stemers did not tell the Defendant that she was not taking her medication for her mental illness Ms Siemers did not tell the Defendant that she was in a manic state Ms Stemers did not tell the Defendant that she had never tried a murder case before Ms Siemers did not tell the Defendant that she had never defended a case in which DNA evidence would be introduced Ms Siemers became counsel of record on June 9, 2006 Shortly before the scheduled commencement of the trial, attorney Siemers contacted John Torres, a reporter with the Florida Today newspaper Ms Siemers told Mr Torres that the State was prosecuting an innocent man She told the reporter that there was “evidence upon evidence” that the Defendant did not commit the crime The trial began on June 26, 2006 On June 19, 2006, one week before trial, at a pretrial hearing, assistant state attorney Rob Parker recognized that Ms Siemers was not prepared for trial “Ms Siemers announced ready fortral and she’s not ready for trial” (June 19, 2006 transcript of pretrial motion page 22) Understanding that Ms Siemers was in the throes of a manic episode helps shed light on her behavior noted in the record During the course of the June 19, 2006 pretrial hearing Mr Parker stated “Judge, I do have concerns with Ms Siemers’ insistent referral that we’re hiding things and making improper comments I’m afraid that she would say those things in front of the jury ” (June 19, 2006 transcript of pretrial motion page 28) Ms Stemers responded “Your Honor, I don’t believe it’s inappropriate to characterize the State as playing games, if that’s what they are, in fact, doing ” (June 19, 2006 transcript of pretrial motion page 29) Mr Parker went on to state “That’s my concern We need to try this according to the rules, Judge, and not the way Ms Stemers 1s, the way I see it, wanting to try this case We have rules of guidance ” (June 19, 2006 transcript of pretrial motion page 33) Prior to the commencement of voir dire the following exchange took place Ms Siemers stated “When I’m saying playing games before the jury came in, it has nothing to do with anything regarding the yury It had to do with discovery issues, but he (Parker) doesn’t like the fact that I’m an aggressive attorney, and I’m a good attorney, and that I make good points 10He therefore wants to win this case, not on the evidence, but on somehow— Well, I consider it they are playing games, Your Honor I really do believe he’s playing games” (June 26, 2006 transcript of trial page 17) The Court admonished Ms Siemers and stated “But whether you believe that, or not, that’s not appropriate legal argument to make before the jury they are unethical It’s unethical to accuse attorneys of playing games” (June 26, 2006 transcript of trial page 17) Shortly thereafter a short recess occurred During the course of the recess, off the record, Ms Siemers approached a family member of the victim The Court learned of this action and again had to admonish Ms Siemers “Ms Siemers, you were talking with a victim? I think it’s not appropriate to speak with the victim without the attorney present ” (June 26, 2006 transcript of tral page 21) On June 27, 2006 the Court learned additional information with regards to this contact and called the attorneys into her chambers The following exchange took place The Court stated, “I have brought you here — I want this on the record I brought you here because yesterday afternoon, when I said something to you after you had been speaking to the victim advocate, I thought that was the end of it, but I have been given some information that indicated that 1t was a little bit more than just an introduction I don’t know if Mr Parker was aware of this Iwas provided with information that not only did you introduce yourself to the victim advocate, accusing her of staring at you, and that you also told the victim, the survivor, that your client was not guilty, and I think it’s important that you understand that I think it 1s inappropriate to approach a surviving victim to say something like that I also think it 1s inappropriate to approach them, particularly when the State Attorney was not present in the courtroom Neither Mr Parker nor Mr McVicker were present in the courtroom I called you on it when you approached them She looked a little stressed That's all I saw, was that the victim advocate looked a little stressed T thought it was over and done with, but then I found out there was more than Just an introduction being made I just wanted to --” Ms Siemers asked, “Where did you get that information from?” The Court responded, “—let you know” Ms Siemers asked, “Do you mind if I ask?” The Court responded, “Someone heard you say that” The Court went on, “The offense that [ am referring to occurred yesterday” Mr Parker stated, “Okay, well, I was aware that it occurred yesterday, and that she put out her hand, and that she got in her face, very close to her face That’s the information that was given tome Judge, I wasn’t there All I know 1s that Mr McVicker and myself left the courtroom together, and that’s when st happened, and that’s why I had such a huge problem with it” The Court responded, “I just wantto put on the record that I am not gomg to go any further with this, because I Just wanted to tell you that | thought it was inappropriate, and let you know I don’t want to have that kind of thing happening again during the trial, and that although there 1s no requirement that you not talk to a witness at that point because the Rule hadn’t been invoked, I still think it 1s mappropriate for you to do that without the Prosecutor being present I would think you would feel the same way if he approached one of your witnesses without you being present” Ms Siemers said, “I wouldn’t, actually” The Court responded, “Well, I would, as an attorney I feel so, as a judge, that 1t would be mappropriate, so I would ask that” Ms Stemers said, “So I’m not-- ” The Court responded, “—you avoid that” Ms Stemers said, “—allowed to talk to any State witnesses without the Prosecutors present? The Court responded, “While the trial 1s in session, I don’t thmk it’s appropriate to do so” Ms Stemers asked, “Would you explain why” The Court responded, “Well--” Ms Siemers said, “ I’m just curious I mean, if I’m asking them — If | say something that — Is he going to - If I say something — What’s going to happen differently if --” The Court responded, “Ms Siemers, I don’t think you understand You may not feel that you have this power, but other people feel that you, as an attorney, have a lot of power They are intimidated by an attorney talking to them, particularly when it’s theattorney for the other side So whether the Prosecutor 1s talking to your witnesses, or you are talking to their witnesses, people that are not lawyers — ” Ms Siemers stated, “Okay, I understand that -- * The Court responded, “—are intimidated by --” Ms Siemers stated, “I understand that” The Court responded “—lawyers” Ms Siemers stated, “I didn’t understand it, but now I’m getting it” The Court responded, “And I --” Ms Siemers stated, “I appreciate --” The Court responded, “ ~ as the judge, I want to protect people that are subpoenaed to come into my court from feeling any more stress than they have to, already, by the fact that they have to be in court That’s --” Ms Siemers stated, “Understood ” The Court responded “—my reasoning” Ms Siemers stated “Okay, sometimes when I’m just told the word mappropriate, with nothing further I don’t really understand it There 1s one little matter I wanted to bring up before the Court I was going to bring it up i the courtroom The Court responded, “You can do it I wanted to do this outside the presence of your client, because I didn’t think it was necessary It’s on the record It’s available if somebody wants to I didn’t want to embarrass you in front of anyone else, in front of the whole courtroom, but if --” Ms Siemers stated, “Okay” The Court responded “—there 1s something else you want to put on the record now, we can do it now, or we can do it when we get back in the courtroom I don’t know whatit has to do with the case” Ms Stemers stated, “ It has to do with the case 1 don’t know rf Mr Parker saw this, or — but after — or if Mr McVicker saw it, but I — one of the people sitting in the gallery during the trial --" ‘The Court responded, “Today or yesterday?” Ms Stemers stated, “Today ~ saw Valeria David when she got off the stand, after giving her testimony — she gave a thumbs up to the State, and I would like to be able to argue that in closing statements, because | think it shows that she’s not telling the truth when she says she doesn’t have an interest in how this case comes out” The Court responded, “I did not observe that” Mr McVickers stated, “As an officer of the Court, I did not see that” The Court responded, “So that would be a collateral issue that someone would have to testify that they saw that You’re saying you didn’t see it” Ms Siemers stated, “No, but there’s somebody I could put on the witness stand who could --” The Court responded, “That would be a collateral 1ssue, a collateral impeachment | don’t think that would be available If you want to discuss it on the record, and proffer something on the record for that, you can proffer something, and then I will have to have argument on whether or not that 1s even appropriate to bring as an item of evidence before the Jury” Ms Stemers stated, “Okay, but I shouldn’t mention it in closing, then?” The Court responded, “Not if. it’s not evidence of that from the witness stand, no, you shouldn’t mentionthat in closing” Ms Siemers stated, “Okay, Just curious” (June 27, 2006 transcript of trial page 458-465) During the course of Ms Siemers’ voir dire she stated to the jury panel “More information 1s usually better, however, we all understand some information stays out because of the Rules of Evidence The jurors always don’t get the whole picture, night?” (June 26, 2006 transcript of trial page 220) The state objected to this line of questioning and asked, “With all due respect to approach” At the bench, Mr Parker stated, “That 1s an outrage to suggest that because of the Rules of Evidence they don’t get to hear the whole case She should go to jail over that, and I’m frankly getting concerned that she 1s going way out of line She’s out of line It’s calculated to infect the jury” (June 26, 2006 transcript of tial page 221) The Court ruled “That’s not appropriate Sustain his objection” Ms Siemers responded, “Mr Parker was inappropriate in front of the jury” The Court admonished “Both of you calm down Please don’t make personal remarks about each other’s behavior ” (June 26, 2006 transcript of trial page 221) Subsequently during vorr dire, Ms Siemers stated, “I think the general prejudice 1s Mr Parker 1s being frivolous in his objections. That's my main objection” The Court responded “Well, I think he has some concerns thatyou're misstating the law, and I don’t know that you mean to, but it’s not uncommon during vor dire This 1s vorr dire, so it’s not unusual to ask for that, I will grant the request to read this to the jury” (June 26, 2006 transcript of trial page 271-272) Shortly thereafter the following exchange occurred at the bench Mr Parker stated, “I object to the hypotheticals, and she 1s trying to gain some sort of commitment from them I don’t think that any of her questions have been to establish, “Can you follow the law?” The Court responded, “Sustamed as to the hypothetical It has nothing to do with this case” Ms Siemers stated, “I didn’t say it was” The Court responded, “You're bringing in things that are not related to this case whatsoever Sustain the objection” Ms Siemers stated, “I don’t understand any of this ” (June 26, 2006 transcript of trial page 274) Upon returning from the bench, the following exchange occurred Mr Parker stated, “Judge, I have the same objection as I had before with the hypothetical I just think it’s improper” The Court responded, “I will sustam the objection” Ms Stemers stated, “Mr Cutnaw, if a police officer seems to be playing games, and dancing around --” Mr Parker stated, “Judge, | —” Ms Siemers then stated, “— when answering a question --” Mr Parker stated, “— objection as to the characterization of some witness playing games and dancing around without some basis in fact” The Court responded, “Sustained” Ms Stemers stated,“How can that be?” The Court responded, “Sustain the objection” Ms Siemers stated, “If a police officer 1s less than straightforward in answering a question, in your opinion, and seems to be dancing around --” Mr Parker stated, “Judge, again, objection” The Court responded, “I’ll sustain the objection It’s not the beginning of the question It’s that term of dancing around” Ms Siemers stated “ I don’t know how to talk in ways that don’t use words that aren’t acceptable I don’t know how to do this_ I really don’t Do you understand what I’m trying to ask you, Mr Cutnaw? Do you believe you do” (June 26, 2006 transcript of trial page 275-276) Shortly thereafter, during questioning one of the jurors, the following exchange took place Ms Siemers stated, “ Do you follow national politics at all?” Mr Stender replied, “No” Ms Siemers asked “No? You don’t watch TV?” Mr Stender replied by nodding his head Ms Siemers stated “So would you know if there was someone in the White House who 1s looking to go in prison for the rest of his life for lying, so I don’t know that I necessarily agree with you, but thanks for your thoughts, Mr Stender ” (June 26, 2006 transcript of trial page 283-284) Ms Siemers irrational thinking continued to manifest itself throughout the course of the trial During Christopher Vasquez’s testimony the following exchange took place Mr Parker asked Mr, Vasquez, “Prior tothat, the first time you talked with the police in May of 2002, when was it you first met Mr Abramowski?” Mr Vasquez answered, “Weeks Probably a couple of weeks, because Bubba met him in jail, I guess, and then he —” Ms Siemers stated, “Objection” The Court responded, “Counsel approach” Whereupon, there was a discussion at the bench out of the hearing of the jury as follows The Court asked, “Sustained Do you want a mistrial?” Ms Siemers stated “No No, I don’t I want the witnesses to be prepared They shouldn’t say anything about being in jail, and it’s unresponsive to the question” The Court responded “Sustamed as unresponsive ” (June 28, 2006 transcript of trial page 649-650) Ms Stemers rational refusal to seek a mistrial 1s compounded by her subsequent irrational questioning of Dr Vassallo The behavior 1s so egregious that state attorney Parker needed to speak up in an attempt to protect the record Ms Siemers asked, “Doctor, do you remember giving testimony in this case in December, correct, of last year in the trial? Do you remember that?” Doctor Vasallo responded “Yes” Mr Parker then stated, “Judge, could we approach?” The Court responded, “Counsel approach ” The following discussion took place at the bench out of hearing of the jury Mr Parker stated, “I just want to bring it to counsel’s attention - - I have a great concern about her mentioning the previous trial in this matter I thinkit may be highly prejudicial to her to comment about that, and I’m sure she didn’t mean it intentionally, but I wanted to bring it to her attention, because I think it could cause extreme harm to her client It’s not the first time This happened on a previous occasion in this case, so there could be an indication of a mistrial, which 1s what happened before, and the Jury could be left with the impression that another jury has heard this, and that could make their findings in a way that could harm the right of her client to a fair trial T just want to bring that to your attention, and to Ms Siemers’ attention” Ms Stemers responded, “Thank you” (June 28, 2006 transcript of trial page 887-888) Additionally, Ms Stemers irrational thinking allowed evidence of the Defendant’s prior criminal record to be introduced to the jury The prosecution could never have introduced this evidence However, Ms Siemers mental state created a circumstance in which the inadmissible evidence was actually brought to the attention of the jurors through the defense counsel Ms Siemers asked Agent Gary Harrell, “And it wasn’t until you interviewed Mr Abramowski in August that you read him his constitutional rights, correct?” Agent Harrell responded, “Correct” Ms Stemers asked, “Why was that?” Agent Harrell responded, “Well, at that tume he was already in jail, and this was an interrogation, rather than an 20interview” Ms Siemers asked, “So he was in custody?” Agent Harrell responded “He was” Ms Siemers asked, “ And how did he get im jail, do you know?” Agent Harrell responded “I knew there was a warrant I’m not familiar with the circumstances of that” Ms Siemers asked, “Do you know that he turned himself in?” Agent Harrell responded, “Well, I know that he claimed that in his interview Yes” Ms Siemers asked, “Okay, and was it for a misdemeanor DUI?” Agent Harrell responded “I remember it beng a violation of probation” Ms Siemers asked, “Probation on a DUI?” Agent Harrell responded, “1 don’t recall the facts” Ms Semers asked “But between May, when the killing happened, and August, when you questioned Jeff the second time, he turned himself in to the jail?” Agent Harrell responded, “Well, I don’t know if he turned himself in, or not He --” Ms Stemers asked, “You didn’t check that out?” Agent Harrell responded “No, I didn’t care how he got there He was --” Ms Siemers asked, “You didn’t care?” Agent Harrell responded “—in jail ” (June 29, 2006 transcript of trial page 950-951) Ms Stemers’ irrational thinking 1s also illustrated by her behavior when she discovers the State has made a scrivener’s error The Court asked, “Ms Siemers, do you have an objection because of a discovery violation?” Ms Siemers responded, “Yes, your Honor” The Court asked, “What 1s the 2nature of the violation?” Ms Siemers responded, “The nature of the violation is that | was put on notice that these statements were made in May of 2004” The Court stated, “Mr Abramowski has been in custody from May of 2002 through today’s date” Ms Stemers responded, “I know that” The Court stated, “So, Mr Parker, why was the State --" Mr Parker responded “Judge, I meant to say May of 2002, and because I’m not the sharpest tool in the shed, I put 2004 It was an error on my part It’s certified during that particular — right about the time -- ” Ms Siemers stated, “2004” Mr Parker responded, “Well, I see that I certified it to them on the 22" day of July, 2004, and unfortunately, instead of a 2, a 4 was there” The Court asked, “So it was inadvertent?” Mr Parker responded, “Yes, Ma’am ” The Court stated, “Obviously, Ms Rita Akridge didn’t have contact with Mr Abramowski while he was in custody?” Mr Parker responded, “Not at her apartment” Ms Siemers stated “Well, he could have called her at her apartment” The Court asked, “Has Ms Akridge been deposed, Ms Siemers”” Ms Siemers responded, “No, she has not, but in none of her swom statements from the beginning did she ever say that 1t was two years after the death She suddenly remembered that Jeff made these incriminating statements two years earlier” The Court stated, “So tell me, regarding the scrivener’s error that it was 2004 versus 2002, when obviouslywhat he 1s referring to 1s the time when this incident was --” Ms Siemers stated, “It preyudices — Jeff never went over there that week In 2002, when this happened, she spoke to the police, and she never said —” The Court responded, “That’s not a discovery issue The issue here 1s preyudice because the State made a mistake on --” Ms Siemers stated, “Right” The Court responded “—the --” Ms Siemers stated, “And since he hasn’t gone over there in 2002, we assumed that that was 2004” The Court responded, “And he didn’t go over there in 2004, either, correct?” Ms Siemers staetd, “No, not that I’m aware of He hasn’t gone — He didn’t go in 2002, either — He didn’t --” The Court responded, “He --” Ms Siemers stated “—- when they claimed he did, so I can’t see —” The Court responded, “So this 13 a discovery violation because it gives dates that are obviously incorrect, and it was an inadvertent mistake on the part of the State, where they put the wrong date Mr Parker, when did you discover that the date was wrong” Mr Parker responded, “I think just the other day, and I --” Ms Siemers stated, “Yesterday ” Mr Parker stated “ — provided it to her” Ms Siemers stated, “And that was -- ” The Court asked, “And you told her that there was a problem with the date?” Mr Parker stated, “When it was pointed out tous” Ms Siemers stated, “I pointed it out to you” The Court asked, “Tell me what prejudice you have The fact that 1t says 2004 versus 2002, what 23would you have done differently in preparing for trial?” Ms Siemers responded, “I would have taken the deposition of Rita” The Court asked “Do you wish for me to take a recess so you can ask her these questions now?” Ms Siemers responded, “Well, am I allowed to ask her in front of the Jury :f she only came up with these statements in 2004?” The Court responded, “You can ask questions about when this was made available to the State or to the police It think that’s -” Ms Stemers stated, “Two years after the incident, you --” The Court stated, “The issue now 1s a discovery violation It’s a technical violation because it gives the wrong date I’m finding, based on Mr Parker’s comments, had under the circumstances it was an inadvertent listing of the wrong date, and you are on notice of the substance of the statements that were allegedly made to her by your client, so then the question 1s what sanction, if any, should I impose upon the State because they made an madvertent mistake on their discovery to you, or to your ~ to the prior counsel, obviously” Ms Siemers stated, “Obviously, what we’re going to request is that this testimony not be given” The Court responded, “Short of excluding the testimony, there are other options, like take a recess so you can depose the witness _ I can continue the case so you can depose the witness I can do other things, but I don’t think it’s appropriate to exclude the testimony when you were placed on notice that 24this testimony may be brought” Ms Siemers stated, “Okay” The Court responded, “So short of an exclusion of the testimony, I’m setting forth other possible sanctions of --” Ms Siemers stated, “I would like to just question her about it briefly nght now” The Court responded, “With me present or not? A short deposition? How do you want to do this”” Ms Siemers stated “Well, the Court can take a break if you would like It won’t be too long, but Ijust have a few questions” The Court responded, “Mr Parker, do you want to make her available so that you and she can have a discussion about this, so she can be available in the witness room, or --” Ms Siemers stated, “Can we just --” Mr Parker responded, “Absolutely” Ms Siemers asked, “Could we just do it here since the Court Reporter 1s already set up, and everything” Mr Parked asked, “Is counsel going to pay for the Court Reporter, for her deposition” The Court responded, “I don’t think that’s an issue” Ms Stemers stated, “It’s not a deposition It’s four or five questions ” Mr Parker asked, “I’m sorry?” Ms Siemers responded, “It’s going to be a couple of questions” Mr Parker stated, “So it’s voir dire of the witness --” Ms Siemers stated, “Yes” Mr Parker asked, “—at this time?” Ms Siemers responded, “Yes, that’s what 1t is” Mr Parker stated, “T don’t have an objection if you stay here judge” The Court responded, “Then that’s fine Go ahead ”Vor Dire Examination by Ms Siemers Q Ms Aknidge, back in 2002, you didn’t tell the police any of these statements did you? A You're going to have to repeat that Q Okay, you told that State Attorney at some time that Jeff said, “I’m going to get back at that old man I’m going to rob him this weekend He’s going to get some money this weekend Dick just got his Oxycontin prescription filled today I’m not going to hurt the old man, just rob him I want Dick to know what it feels like to get screwed over like he screwed me over” ‘Mr Parker then stated, “There’s one other statement, counsel ” Ms Seimers continued Q (Continued) I’m sorry, there’s one more statement that was supposed to be said on another date “I'll kill you, you son of a bitch” A Yes, I heard him say that, but — Okay, did you tell the police that in 20027 Yes, I did You did? Yes, ma’am, I think I did oe Oo You think you did? 26A Yes Q Do you remember when that was? A [don’t remember Q Was it when they asked you — when they questioned you in Alabama? A No, I think I had come back to Florida when any asked me those questions Q And then you were questioned agam? The second time you were questioned by the police, and then -- A The first tme I was not really questioned They came to Alabama and told us that Mr Crandall had been murdered, and then we went back to Alabama, me and my sister did, the next day Q Okay, I’m just trying to understand when the first time you told either the State or the police these statements You're saying it was 2002? A Itwas the next ~ It was the next day, the following weekend Q After you came back from Alabama? A Yes, that Tuesday morning Ms Siemers stated, “Your Honor, I’m a bit confused, because these statements weren’t disclosed until 2004, and they’re not in any of the other police reports, so if the State knew about this in 2002, I don’t know why we weren't informed until 2004” The Court responded, “ Well, you were —This was two years ago, Ms Siemers I can’t tell you why they didn’t give it to you earlier, if in fact they had it Sometimes the police don’t report everything to the State 1 don’t know Maybe the police didn’t write it down Maybe she’s mistaken I don’t know, Ms Siemers” Ms Siemers asked, “But that’s not an additional discovery violation, to keep it for two years and not tell us?” The Court responded, “Well, it could be, except for the fact that it’s sort of cured two years later, because you're not sitting here on August 1* of 2002 trying the case, when you should have had the case and the information two years earlier We're sitting here on June 28" of 2006 trying the case You have had - Mr Abramowski’s attorney has had that information for almost two years, and now you have it You've only been on the case about a month” Ms Siemers stated “Do we even know to whom these statements were made?” The Court responded, “If you wish to discuss it with the State regarding further issues, that’s something that probably should be done outside of my presence, and off the record, 1f you want more discussion on this, otherwise, we’re in a formal hearing here ” Ms Siemers stated, “Just let me—” Ms Siemers continued questioning, Q (Continued) Do you remember to whom you made these statements? The police? Anybody? 28A Not right off the bat, but if I was to think, I could They were detectives that I had made those remarks to Q It was Agent Harrell? Does that sound familiar? Gary Harrell? Carlos? Carlos Reyes? A > OF DOD > 0 I think it was Gary Harrell and Carlos How many times do you remember being questioned by them? Several times Was it like three, do you know exactly? I don’t remember You're not sure? I mean, I know | was questioned a few times, but I don’t remember exactly the times Q Okay, but might now as you sit here in 2006, you remember Jeff making these statements in 2002? A Q A Q A Q Yes, Ido Did you tell anybody else about them, besides the police? Seems like everybody that we knew, knew that he said these things Did you tell Dick? Yes, I told Dick You did? 29A Yes, Ma’am, I sure did Q When was that? A I told hum the day before we left to go to Alabama what Jeff had said, and me and my sister told him to be careful, and to get — to leave Jeff alone, and not let Jeff come around Ms Siemers stated, “ I have nothing further, your Honor” The Court responded “What are you asking the Court to do at thts time, short of not allowing the witness to testify? Which T don’t think 1s an appropriate sanction at this ume Do you have other requests®” Ms Stemers stated, “I don't know what else I can request, your Honor” The Court responded “You can request a long break, if you need to review this, or talk to the witness, or , you can —I guess you could ask for a continuance at this point” Ms Stemers stated, “Obviously, we don’t want that” The Court responded, “I understand that, but if you’re asking me what sanctions you can ask for, those are the options You can make other suggestions, 1f you have others, but that’s appropriate sanctions” Ms Siemers stated “It just seems to me that the State didn’t inform Defense counsel until 2000 — until 2004 — didn’t inform Defense counsel that the statements existed They did not exist in any sworn audio statements or in any written police report, or --” The Court responded “Let’s take a ten minute break You talk to your client about 30what you want to do I said I would not deny the State’s request to present this evidence, based on — as a sanction on a Richardson violation, even though it’s a technical violation I don’t think that’s an appropriate sanction, to exclude the testimony completely Short of that as an option, 1f you can think of other options, I’ll come back in ten minutes, after you have had a chance to discuss it with your client, and decide what you want to do ” (June 28, 2006 transcript of trial page 694-706) Ms Stemers did not make any further motions, requests or take any further action on the issue after the recess Subsequent to the guilty verdict, as the court deputies were escorting the jurors to their cars, attorney Semers attempted to speak with the jurors The court deputies informed Judge Ramwater of Ms Stemers’ behavior in the parking lot of the courthouse Judge Ramwater upon learning of this action filed a grievance with the Florida Bar Undoubtedly, if the Court had been aware of Ms Siemers’ mental health condition, Judge Rainwater would have taken steps toward findmg Ms Siemers medical assistance The Court would also have taken action to protect the Defendant's Sixth Amendment Rights 31CONC The fact that Laura Siemers has a history of mental illness and was in the midst of a manic episode due to her failure to comply with her medication regiment was unknown to the Defendant at the time of his trial This fact was not learned until Ms Siemers disclosed it to the Defendant on December 8, 2011 This information could not have been uncovered at an earlier occasion The manic episode resulted nm Ms Siemers being unable to think clearly and rationally The Defendant in essence was completely denied his Sixth Amendment Right to counsel The fact that Ms Siemers was in the throes of her mental illness permeates every aspect of her representation The irrational actions of Ms Siemers documented by the trial record become understandable once they are exposed to the fact that she was in a manic episode Representation by a mentally ill irrational counsel 1s the equivalent to no counsel at all As such, prejudice 1s inherent and presumed and no separate showing of prejudice is required See Javor v_ United States 724 F 2d 831 (Ninth Circuit, 1984), Tippens v_Walker 77 F 3d 682 (Second Circuit, 1996), Burdine v_Johnson 262 F 3d 336 (Fifth Circuit 2001) The United States Supreme Court in Strickland v_ Washington, 466 US 668, (1984) recognized that there are some situations where preyudice will bepresumed, because it will be “so likely that case-by- case inquiry into prejudice 1s not worth the cost” Examples are cases of “actual or constructive dental” of counsel or “state imterference” with counsel’s assistance Id_at 692 Alternatively, even if prejudice 1s not presumed, it 1s clear that even pursuant to Strickland’s two-prong deficiency and prejudice analysis, the Defendant 1s entitled to relief ~The record clearly demonstrates that Judge Rainwater recognized the preyudicial effect of Christopher Vasquez’s testimony that the Defendant had previously been in jail See Williams v State, 692 So2d 1014 (Fla Fourth DCA 1997) Trial counsel, however, refused to seek a mistrial and did not even ask for a curative instruction This course of action 1s only explained by her wrational mental state Additionally, trial counsel magnified the prejudicial effect during her cross- examination of Agent Harrell Ms Siemers not only reemphasized to the jury that the Defendant had committed prior crimes, she actually informed the jury that the Defendant had been incarcerated for violating his probation regarding a collateral offense The evidence against the Defendant was weak The State’s case was entirely circumstantial The original suspects were the only ones to claim that the Defendant threatened the victim There was not any independentwitness to this alleged threat The DNA evidence did not establish that the Defendant was in contact with the victim at the time of his murder The State acknowledged the limitations of the DNA evidence in placing someone at the scene of the homicide at the time of the homicide The State, in their closing, argued that the fact that Mr Crandell was clutching Judy Foley’s hair when his body was discovered did not mean she was present when he was killed The Defendant did not have any signs of injury that could relate to the DNA evidence The Defendant actually came to the aid of Mr Crandell when Bruce Foley was attacking the victm The Defendant's actions of helping the victim directly contradicts the State’s perceived motive for the murder as this action occurred after the date he was allegedly left in Orlando But for Ms Seimers’ deficiencies that resulted from her being in an mrational manic state, the results of Defendant’s trial would be different The newly discovered evidence unequivocally demonstrates that the Defendant 1s entitled to a new trial WHEREFORE, Defendant, JEFFREY CHARLES ABRAMOWSKI, respectfully requests that this Honorable Court grant the Motion for Post Conviction Relief and grant a new trial 34CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Office of the State Attorney, 2725 Judge Fran Jamieson Way, Building D, Viera, Florida 32940 by counter this 7 day of April, 2012 BRIAN N ONE) Attorney for Defendant Onek & Mawn, PA 1329 Bedford Drive, Suite 1 Melbourne, Florida 32940 (321)751-9774 Fla Bar No 0373079DEFENDANT'S OATH UNDER PENALTIES OF PERJURY, I declare that I have read the foregoing Motion and that the facts stated 1m it are “CHARLES ABRAMOWSKI STATE OF FLORIDA ~~ COUNTY OF Before me this o¢2!2day of. CH _, 2012, personally appeared Jeffrey Charles Abramowski who 1s (personally known) to me or who ‘oduced N/a as identification and who Gia id not take an oath 35IN THE CIRCUIT COURT IN AND FOR BREVARD COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs CASE NO 05-2002-CF-063402-A JEFFREY ABRAMOWSKI, Defendant ! AFFIDAVIT The undersigned Affiant, Laura D Siemers, swears and states the following 1 On August 17, 2002, the Defendant was charged with second-degree murder, and thereafter was appointed to and represented by the Office of the Public Defender 2 Onor about June 8, 2006, | went to the Brevard County Jail, and convinced the Defendant to allow me to take over his case from his Assistant Public Defender, Steven Wisoker, who is also my husband 3 On June 9, 2006, ten (10) days before this case was set to go to trial, | filed a Motion to Substitute Counsel and Relieve the Public Defender, informing the Court that | would not ask for a continuance, and would be ready for trial on June 19, 2008 4 On June 26, 2006, after a one-week state continuance, the Defendant's tnal began, and on June 30, 2006, the Defendant was convicted of second-degree murder, and subsequently sentenced to life in prison 5 Ihave been diagnosed with, and treated for, Bipolar Disorder, since 1994 6 When | convinced the Defendant to let me take over as his attorney ten (10) days before the case was set to go to trial, | was operating under a psychotic and manic delusion, leading me to believe that | was a genius who would definitely win the ‘nal, with Iittle time to prepare 7 When | convinced the Defendant to let me take over as his attorney, and throughout the Defendant's tnal, | was not taking the medication that was prescribed to me to treat my Bipolar iliness 8 When | convinced the Defendant to let me take over as his attorney, | had never tried a murder case before, | had never tned or litigated a case involving DNA as this case does, and | had previously tned only two (2) felony tals - Erhbit | = a ————>>9 When | convinced the Defendant to let me take over as his attorney, | did not tell him | had never tried a murder case or a DNA case, and that I'd only tned two (2) felony trials before 10 When | convinced the Defendant to let me take over as his attorney, | did Not tell him that | have Bipolar Disorderilliness, and that | was not taking my prescribed psychotropic medication for that illness at that time 11 [believe that my manic mental state resulted in psychotic delusions and behavior, which rendered me unable to provide effective assistance of counsel 12 On December 8, 2011, | notified the Defendant that throughout his trial, | was in a manic and psychotic state resulting from not taking my medication for Bipolar Disorder mm DATED this J)” tay of Ayal”, 2012 datiaB Siemers SWORN TO AND SUBSCRIBED BEFORE ME “ THIS _Il=& DAY OF KEVIN MAW - Notary Pubic State of Faria Notary Fublic, State of Flonda at Large My Commiss(on Expires\ _— S-S- LO. My Comm Expices Aug 2 2019 Commission # 00 613053,William E. Riebsame, Ph.D., ABPP Licensed Psychologist Board Certified in Forensic Psychology 1555 Port Malabar Blvd_NE « Suite 104 Palm Bay, FL 32905 « (821) 729-0870 February 22, 2012 Brian Onek, Attomey at Law 1329 Bedford Drive Melbourne, FL 32940 Re Bipolar I Disorder Dear Mr Onek, Recently, you requested information regarding the diagnosis of Bipolar I Disorder and how symptoms assoctated with this mental disorder might impact an attomey diagnosed with Bipolar | Disorder but not compliant with any psychotropic medication In this correspondence I will briefly outline the diagnostic criteria for Bipolar | Disorder then infer how this combination of symptoms would negatively affect the ability of an attorney to competently carry out hus or her duties The Diagnostic and Statistical Manual of Mental Disorders-IV-Text Revision (DSM-IV-TR) provides detailed information with regard to Bipolar f Disorder In brief, this mental disorder typically includes the occurrence of manic episodes which alternate with major depressive episodes These alternating conditions may come about quite rapidly or may reoccur within weeks or months of one another As a result the individual 1s prone to experience significant emotional and behavioral difficulties that impair their functiong across all areas of their hfe ‘A major depressive episode characteristically includes depressed mood most of the day, loss of interest in activities, significant weight loss or gain, a sleep disturbance, lack of energy, feelings of worthlessness, a diminished ability to think or concentrate resulting in indecisiveness, and possibly recurrent suicidal ideation Alternatively, a manic episode reflects a distinct period of persistently elevated or iritable mood durmg which the person may experience feelings of grandiosity, a decreased need for sleep, distractibility, thoughts that are racing, noticeable talkativeness, increased activity, and excessive involvement in risky activities such as buying sprees, sexual indiscretions, or foolish business investments Fortunately, a number of different psychotropic medications have been identified that serve to diminish symptoms associated with a Bipolar | Disorder Often umes, an individual will be = Exhbt 2 —prescribed an antidepressant in combination with a mood stabilizing medication via a family physician or psychiatrist However, noncomphance with such a medication regimen is not uncommon Once the individual 1s symptom free they may become convinced that such medication isnotnecessary In addition, side effects associated with these medications are problematic as well and may contribute to noncompliance It would be expected that fan attorney had been accurately diagnosed with Bipolar I Disorder and then discontinued the psychotropic medication prescribed in his or her case that the onset ofamanic and/or depressive episode would come about in the near future ‘This manic and/or depressive episode could vary in intensity and might possibly include psychotic characteristics Impairment in this lawyer's ability to function would be expected For example, decision making would prove to be quite difficult given the onset of racing thoughts, distractibility, disinterest, and agitation ‘This legal official might also fail to adequately consider the riskiness of their decisions based upon a grandiose self-perception Such impaired judgment would be of significant concern In addition, depressive symptoms might serve to limit the attomney’s willingness to put forth the energy to work diligently on a case, and feelings of hopelessness and disappointment that may be unrealistic could ‘undermine their functioning Finally, this person might attempt to keep well hidden such difficulties and possibly become involved in some form of substance abuse for self-medicating purposes Asa result, their behavior and judgment would prove to be further erratic Hopefully, this information serves to answer any question on your part I look forward to working with you again in the near future Sincerely, a i Wilham E Riebsame, Ph D , ABPP Licensed Psychologist Board Certified Forenstc Psychology