PEEK, Anthony Ray (B/M)

DC# 850039

DOB: 03/18/58

Tenth Judicial Circuit, Polk County, Case # 78-445

Sentencing Judge: The Honorable Gordon MacCalla

Trial Attorney: Frederick R. Replogle, Assistant PublicDefender

Attorney, Direct Appeal: Paul C. Helm, Assistant PublicDefender

Retrial Attorney: Dale Jacobs, Assistant Public Defender

Attorney, Direct Appeal after Retrial: Edward S. Stafman,Private

Date of Offense:         05/22/77

Date of Sentence:       05/02/78

Date of Retrial:           10/24/84

Circumstances of the Offense:

On May 22, 1977, at 8:30 a.m., Erna L. Carlson’s body wasfound in the bedroom of her Winter Haven, Florida, home. Ms. Carlson’s robe andpart of her bedspread had been tied around her neck. Her pajama bottomscontained blood and semen fluid stains. Inspection of the house revealed thatthe screens on two doors leading into the house had been cut. In the garage,remnants of a stocking were found that contained a strand of hair that isconsistent with hair belonging to a black individual. The telephone wiresoutside of the house had been cut.

Ms. Carlson’s car was found beside Lake Martha, which is approximately one mile from the victim’s home. The driver’s side door waslocked, but the passenger side was open. The keys were found in the glovecompartment, and fingerprints were found on the inside of the driver’s sidewindow.

Law enforcement had been informed that Anthony Peek had gonedoor to door in Ms. Carlson’s neighborhood in attempts to find odd jobs. Thepolice interviewed Peek a couple of days after the murder. At the time of themurder, Peek lived in a supervised halfway house. Peek told the officers thathe had returned to the halfway house before 11:00 p.m. on the night of May 21,1971. Peek voluntarily submitted his fingerprints and hair samples.

At the trial, experts testified that Ms. Carlson died ofstrangulation. She had two broken ribs and had been raped. The crime labadvocated that the hair samples provided by Peek were microscopically similarto the one found at the crime scene, although it was never stated that theywere identical. The hair samples were lost following the testing. The blood andsemen found in Ms. Carlson’s pajama bottoms originated from an individual withType O blood, which was consistent with Peek’s blood type. The fingerprintsfound in Ms. Carlson’s car matched Peek’s fingerprints.

Peek’s testimony at the trial was consistent with thestatement that he had previously given to law enforcement officers, with theexception of the admission that he had been inside the victim’s car. Prior tothe trial Peek had stated that he had not been in the area where the car hadbeen found on May 22, 1977. During the trial, Peek stated that he rode his biketo the lakeside park and noticed the car. He saw that the door was unlocked, sohe searched the glove compartment. He then rode his bike back to the halfwayhouse.

When the murder was committed, Peek was out on bond for aburglary and grand theft charge.

Trial Summary:

02/16/78          Defendant was indicted on the followingcharges:

                                    Count I:           First-DegreeMurder

                                    Count II:         Sexual Battery

                                    Count III:        GrandLarceny

03/23/78          Motion for consolidation of Case# 78-445and Case# 77-2567.

04/12/78          The Defendant was found guilty of all ofthe charges in the indictment in

            addition to a BurglaryCharge from Case # 77-2567

04/13/78          A majority of the jury recommended a deathsentence for Count I.

05/22/78          The defendant was sentenced as follows:

                                    Count I:    First-DegreeMurder - death

                                    Count II:   SexualBattery – life, run consecutive to the sentence in

     Count I

                                    Count III: Grand Larceny– 5 years

                                    Case #77-2567:

Count I:   Burglary – 5 years

Retrial Information:

08/24/84          Defendant was found guilty of all of thecharges in the indictment.

09/05/84          The jury recommended a sentence of deathby a vote of nine to three.

10/24/84          The defendant was sentenced as follows:

                                    Count I:    First DegreeMurder - death

                                    Count II:   SexualBattery – 30 years, run consecutive to the

     sentence inCount I

                                    Count III: Grand Larceny– 1 year, to run concurrent with Count I

     and Count II

                                    Case #77-2567:

Count I:   Burglary – 15 years, to run consecutive with the

   sentences inCase # 78-445

Second Retrial Information:

04/17/86          FSC remanded the case for a new trial

01/19/87          Defendant found not guilty on all counts.

Appeal Summary:

Florida State Supreme Court, Direct Appeal

FSC# 54226

395 So. 2d 492

05/30/78          Appeal filed

10/30/80          FSC affirmed the conviction and sentence.

01/27/81          Rehearing denied

United States Supreme Court, Petition for Writ of Certiorari

USSC# 806369

451 U.S. 964

03/19/81          Petition filed

04/27/81          Petition denied

State Circuit Court, 3.850 Motion

CC# 78-445

03/08/83          Motion filed

11/02/83          Motion granted

Florida State Supreme Court, Direct Appeal after Retrial

FSC# 66,204

488 So. 2d 52

11/29/84          Appeal filed

04/17/86          FSC remanded for a new trial.

06/04/86          Rehearing denied

07/03/86          Mandate issued

Case Information:

Peek filed a Direct Appeal with the Florida Supreme Court on05/30/78. Peek raised three issues to contest his conviction. Two of the issuesrevolved around the hair samples and their subsequent misplacement; The FloridaSupreme Court did not find an error. The issues challenging his sentencerevolved around the aggravating and mitigating factors.  The Court found thatthere were sufficient aggravating factors to justify the imposition of thedeath penalty. The Florida Supreme Court affirmed the conviction and sentenceof death on 10/30/80. The rehearing was denied on 01/27/81.

Peek filed a Petition for Writ of Certiorari with the UnitedStates Supreme Court on 03/19/81. The Petition was denied on 04/27/81.

Peek filed a 3.850 Motion in the Circuit Court on 03/08/83.After an evidentiary hearing, the trial judge found that false expert testimonypertaining to the hair samples inhibited Peek from a fair trial. The motion wasgranted, thereby vacating the judgment and sentence on 11/02/83. The Statefiled an appeal of the trial court’s decision with the Florida Supreme Court andthe appeal was dismissed on 03/22/84 with the stipulation that the State couldretry Peek.

Peek was granted a new trial and found guilty of all countson 08/24/84. The jury recommended the death penalty by a vote of nine to threeon 09/05/84. Peek was sentenced to death on 10/24/84.

Peek filed a Direct Appeal with Florida Supreme Court on11/29/84. In the previous retrial, the State offered the same evidence it hadpresented in the original trial, in addition to evidence displaying that Peekadmitted to raping a young girl after the murder of Ms. Carlson. Peek’s mainclaim in regard to the Direct Appeal was the admission of this other criminaloffense denied his constitutional right for a fair trial. The Florida SupremeCourt found that the collateral crime evidence was prejudicial, but statedthat, minus this evidence, sufficient evidence still remained for theconviction. In addition to this ruling, the Florida Supreme Court discussed thedisqualification of the trial judge who made racial comments during the interimbetween the guilt phase and the penalty phase of the trial. Peeks convictionand sentence was vacated, and the case was remanded for a new trial on04/17/86. The rehearing was denied on 06/014/86.

Peek was retried in the Circuit Court and found not guiltyof on all counts on 01/19/87.

Prosecution/Law Enforcement Statement:

Comment provided by Robert Nettleton, prosecuting attorney,on 04/30/02 via phone.

A witness gave erroneous statisticsregarding the hair evidence, which was not material enough to warrant areversal. There was enough additional circumstantial evidence without the hairevidence statistics to obtain a conviction. There was a severity andconclusiveness in the case, which both the jury and judge concurred with. Thestate proved the guilt, and the judge and jury agreed. In regard to theretrial, the passage of time, number of appeals, and loss of evidencecontributed to the not guilty verdict. The not guilty verdict was due tomissing evidence and not innocence. There was no reasonable doubt that Peek wasguilty at the conclusion of the first trial.

Jerry Hill, the State Attorney for the Tenth Circuit,provided the following comment on 01/28/02:

Mr. Peek is also on the list, asare several others from other circuits who got new trials and then wereacquitted. I fail to see the rationale for including these people. Juries foundthem guilty; they got new trials; and, juries found them not guilty. I spoke toAssistant State Attorney Hardy Pickard who prosecuted Mr. Peek. Hardy continuesto believe he was guilty. That’s why he tried him. The jury disagreed. Itdoesn’t make him innocent.

04/08/02          Letter sent to Polk County Sheriff’sDepartment requesting comment.

05/23/02          Atelephone call was placed to Polk County Sheriff’s Department. No informationhad been received to date.

Defense Statement:

Comment provided by Dale Gardner Jacobs on 04/10/02 via fax.

“Defendant was tried three times after two successfulappeals and was found not guilty on the third trial. Supreme Court case of Stateof Florida vs. Anthony Ray Peek is very interesting because of prejudicialracial remarks by the circuit court judge.”

Current Status:

Peek is currently incarcerated in Florida Department ofCorrections for the following offenses:

Report Date:   05/08/02          NMP

Updated:         10/05/06          JFL