Lennart S. Koo v. State of Florida , 162 So. 3d 156 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
LENNART S. KOO,
Appellant,
v. CASE NO. 1D12-4866
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 27, 2015.
An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.
D. Gray Thomas of the Law Office of D. Gray Thomas, Jacksonville, for
Appellant.
Pamela Jo Bondi, Attorney General; Wesley Cross Paxson and Jay Kubica,
Assistant Attorneys General, Tallahassee, for Appellee.
ON MOTION FOR REHEARING
ROBERTS, J.
The motion for rehearing and rehearing en banc filed September 17, 2014, is
DENIED.
The opinion of the Court in this case and Judge Wolf’s concurrence clearly
point out that the victim’s letter is not a recantation in any way, shape, or form.
The letter does not contradict the victim’s trial testimony, and it does not provide
any information that would tend to rebut any of the elements of the convicted
crime. It merely provides after-the-fact speculation concerning the Appellant’s
possible motive for committing the theft of the firearms. A post hoc rationalization
does not require an evidentiary hearing where there is no part of it that could be
viewed as a recantation. Therefore, our decision is consistent with any existing
precedent.
WOLF, J., CONCURS; MAKAR, J., DISSENTS WITH OPINION.
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MAKAR, J., dissenting from the denial of rehearing.
We compound the errors in this direct appeal by standing by the statement
that “any evidence in [Dr. Mohammed Saleh’s] letter was known to the parties, and
as such, it did not qualify as newly discovered evidence.” That is directly in
conflict with the Florida Supreme Court’s analysis in Archer v. State, 934 So. 2d
1187 (Fla. 2006), which found error in a trial court ruling that reached a similar
conclusion. The court in Archer said:
[I]n this case, the postconviction court erred when it rejected the claim
[of newly-discovered evidence] based on what the postconviction
court concluded was Archer’s [defendant’s] knowledge of Bonifay’s
[recantation] testimony at the time of the trial. We find that a
recantation is not precluded from being considered newly discovered
evidence simply because the defendant knew, as reflected by what the
defendant claimed the facts to be, that the recanting witness was not
telling the truth at the time of the trial or because the defendant took
the stand to testify contrary to the witness.
Id. at 1194 (emphasis added). Based on the emphasized language, even if Koo
knew that Dr. Saleh was lying at trial, that does not foreclose Dr. Saleh’s
recantation letter from being “newly discovered evidence” for purposes of this
Court’s review.
We create confusion, and conflict, by saying to the contrary—not only with
Archer, but with our own precedent in Burns v. State, 858 So. 2d 1229 (Fla. 1st
DCA 2003), where we said:
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The trial court summarily denied the appellant’s claim because at trial
the appellant had presented testimony by another prisoner that the
appellant’s codefendant had told this other prisoner that he had been
pressured to lie about the appellant’s involvement in the arson in order
to cut himself a deal. The trial court reasoned that the appellant had
therefore known at trial that the codefendant was lying, and thus the
fact of the codefendant’s lying could not constitute newly discovered
evidence. In this regard, the trial court erred.
Even though the appellant knew at trial that the codefendant was
lying, the appellant could not have gotten the codefendant to admit
that he was lying earlier, and thus the recantation is newly discovered
evidence that could not have been obtained earlier with due diligence.
Id. at 1230 (emphasis added). The common thread of Archer and Burns is that a
defendant’s knowledge that a witness is lying at trial does not bar a defendant’s
claim of newly discovered evidence based on that witness’s post-trial recantation, a
principle now cast in doubt.
Moreover, much like this case, the supreme court in Archer noted that the
“recantation clearly offers something new to this case. Indeed, the recantation
offers a completely different version of the facts that, if true, could undermine
Archer’s conviction and sentence.” Id. at 1195. Dr. Saleh’s recantation is a
testamentary turnabout, positing a far different version of motives and actions than
he swore to at trial. Archer, again, is on point and supports the limited remedy of a
hearing on remand. I would reverse and require a hearing on Mr. Koo’s motion to
allow Dr. Saleh to explain his recantation letter under oath. It may be that after a
hearing, the trial court deems Dr. Saleh’s recantation not credible, which is the
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type of finding to which deference is given as in Archer, 934 So. 2d at 1197-99(affirming the postconviction court’s finding that Bonifay was not credible).
Without a hearing, we’ll never know; and Koo’s conviction will always be in
doubt.
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