GREEN, Joseph Nahume (B/M)

DC# 091882

DOB: 01/10/56  

­­­Eighth Judicial Circuit, Bradford County, Case # 92-633

Sentencing Judge: The Honorable Robert P. Cates

Trial Attorneys: Jeffrey Leukel and F. Reed Replogle, Esq.

Direct Appeal Attorney: David A. Davis, Assistant PublicDefender

Date of Offense:         12/08/92

Date of Sentence:       11/30/93

Circumstances of Offense:

At 10:10 p.m. on 12/08/92, Judy Miscally was using a public phone at the Mapco convenience store in Starke, Florida, when she was approachedby a man who demanded money.  When she refused and screamed, the man shot herand fled the scene.  Miscally later died. 

Three people witnessed the shooting – John Goolsby, KatrinaKintner and Lonnie Thompson.  Miscally described the shooter as a skinny, blackman in his mid-twenties, and described the gun as a small, semiautomaticpistol.  Goolsby was in his car at a stoplight near the Mapco store when heheard the shot, and he saw two people in front of the store.  Goolsby was notwearing his glasses at the time and could not determine the sex or race ofeither person.  Kintner was sitting in her car in a convenience store parkinglot across the street from the Mapco store when she heard the shot.  Kintnersaid she saw three black men surrounding a white woman but could not describethem in any detail.  Thompson was near the convenience store across the streetfrom the Mapco store when he heard the shot.  Thompson said he saw Green andMiscally struggle and saw Green shoot Miscally before fleeing behind thestore. 

Green’s alibi was that on the night of the murder, he andhis girlfriend, Gwen Coleman, were walking around Starke.  During that night,Green helped Donald Laverly and David Padgett take a muffler off of Laverly’scar in the parking lot of the Pizza Hut restaurant.  Green returned to themotel where he and Coleman were staying sometime after 11:00 p.m., when Green was reminded by the motel owner that the rent was due the next day. 

Trial Summary:

01/15/93          Indicted on one count of First-Degree Murder

10/05/93          Jury returned a guilty verdict

10/25/93          Jury recommended a death sentence by a vote of 9-3

11/30/93          Sentenced to death

Retrial Summary

03/16/00          Acquitted at retrial

Additional Information:

Prior to his trial forthe murder of Judy Miscally, Green had a criminal record in the State of Florida.  The following is his prior prison history in Florida:

Appeal Summary:

Florida Supreme Court – Direct Appeal

FSC# 83,003

688 So.2d 301

01/10/94          Appeal filed

11/27/96          FSC vacated conviction and sentence and remanded forretrial

Case Information:

Green filed a DirectAppeal with the Florida Supreme Court on 01/10/94, citing twelve trial court errors.  The FSC found two trial court errors harmful enough to warrant anew trial and chose not to comment on the other ten issues.   The FSC foundthat errors were committed by allowing the State to cross-examine a defensewitness about her prior alcohol abuse and by admitting evidence seized pursuantto a bad search warrant.   Additionally, the FSC found that Lonnie Thompson’strial testimony was often inconsistent and contradictory.  On 11/27/96, the FSC vacated the conviction and sentence and ordered a new trial. 

On 03/16/00, Green was acquitted of the charge of First-Degree Murder.  The trial court judge foundthat there was a lack of witnesses or evidence tying Green to the crime. 

Law Enforcement/Prosecution Statements:

Curtis French, who wasthe Assistant Attorney General for the Direct Appeal to the Florida SupremeCourt, had the following statement regarding the Green case:

French noted that once the testimony of the State witness(Thompson) had been excluded as unreliable, “the prosecution could not proveits case,” thus Green was acquitted at retrial.

According to French, Green had not been cleared of thecrime, but instead, he “had been given the benefit of the doubt” in the casedue to the nature of the testimony and evidence against him.  French statedthat the evidence pointed to Green because Green “certainly had both the motiveand opportunity to commit the crime,” and, additionally, problems existed withhis alibi that was given to police. 

To French, Green had not been cleared of the crime andFrench “would tend to dispute his innocence.” 

Additionalcomments were received from William Cervone, State Attorney for the EighthCircuit:

As to Joseph Green, I can provide my commentssince I tried the case.  In essence, the ultimate acquittal was because thetrial court suppressed the identification testimony of witness Lonnie Thompsonafter the original remand from the Florida Supreme Court.  Thompson was theonly eyewitness linking Green to the murder and when his testimony wasdisallowed the remaining circumstances were insufficient to secure aconviction.

Interestingly, the same judge who ultimatelysuppressed the identification after the remand had conducted extensive hearingsbefore the first trial as to the competency of Thompson and had allowed him totestify.  While the Supreme Court Opinion questioned Thompson's competency as awitness, it did not rule on that or find the original admission of histestimony to be error.  It being my belief that the trial court had improperlyinvaded the province of the jury in ruling on the credibility that should begiven to a witness' testimony, the suppression of the identification wasappealed but that appeal was not successful.  Additionally, even before thefirst trial the trial court had suppressed evidence showing the presence of gunpowder residue in the pockets of the defendant's clothing, and the SupremeCourt Opinion suppressed the seizure of the clothing itself.  I remainconvinced of Green's guilt, as was the jury that originally heard the testimonyof Thompson, evaluated it, and convicted Green based on it.

Defense Statements:

David Davis, who wasGreen’s defense counsel for the Direct Appeal to the Florida Supreme Court, hadthe following statement regarding the Green case:

Davis cited competency issues of the State’s witness,Thompson, as the primary reason for the acquittal of Green at the retrial. According to Davis, “the case died when Thompson was declared incompetent totestify.” 

Davis commented that, due to the exclusion of Thompson’stestimony and the lack of other compelling evidence that Green committed thecrime, Green had a “strong claim of innocence,” probably “the strongest claimof innocence that I have seen in a long time.” 

Davis attributes the suspicion and prosecution of Greento “community uproar” and a small town trying to get revenge for the murder ofa popular citizen. 

According to Davis, Green was acquitted due to bad police practices, most notably the bad search warrantand use of Thompson as a witness, and the overall weakness of the case againsthim. 

Current Status:

After acquittal, Greenwas sentenced in 2001 to one-year terms for two cocaine possession charges thatoccurred in 2000.  He was released from prison on 11/05/01.

Green was sentenced to athree-year term for cocaine possession in 2003 and was released on 07/27/06.

Report Date:   05/14/02          JFL

Approved:       05/17/02          WS

Updated:         10/05/06          JFL