Orlando Sentinel

Lawyer can talk to Orlando officer in woman's felony conviction case, judge rules

By Anthony Colarossi, Orlando Sentinel

September 17, 2010

Malenne Joseph and daughters
Malenne Joseph hugs her daughters after being released from the Orange County Jail on Wednesday in Orlando. Her young daughters did not know their mother was in jail and thought she was in Haiti. (JOSHUA C. CRUEY/ORLANDO SENTINEL / September 15, 2010)

An Orange Circuit judge agreed Friday to have defense attorneys depose the Orlando Police officer at the center of the case of a Haitian woman who says she was wrongly tried and found guilty of a felony.

A jury found Malenne Joseph, 29, guilty of felony criminal mischief in June. But she and her attorneys maintain she is innocent and the victim of misidentification.

Attorney Nicole Benjamin said she wants to hear from Officer Jose M. Varela about how he came up with Joseph as a suspect in the December 2007 case of a Conway-area woman's home severely damaged by a subcontractor who splattered paint all over the house.

"We have to connect the dots," Benjamin said after the hearing. "I need to know how he got to Z from A, and right now, I don't know. That's the big issue."

Benjamin learned Varela told prosecutors he identified Joseph through a vehicle tag number provided to him by the victim in this case. He said the victim saw the suspect using the vehicle and the tag number was linked to either Joseph or a relative.

However, the woman who owns the house that was damaged, Kittsie Simmons, told the Orlando Sentinel a couple of weeks ago that she spotted a black man driving by her house soon after the crime, followed him and then provided that tag information to police.

Simmons refused to speak to the Sentinel this week, noting that the State Attorney's Office reopened an investigation.

On Friday, Judge Walter Komanski rapidly granted the defense a motion to depose Varela as well as Kittsie Simmons. Those depositions should show if a conflict exists in their accounts.

Varela read a prepared statement to the Sentinel later Friday after consulting with a city attorney. He could not respond to specific questions because of the current open investigation.

"I followed leads as they were presented to me in the original police report and witnesses. The suspect was positively identified by them," Varela said. "A judge reviewed these facts and issued a warrant. Three years later, this case went to trial and the jury reached the same conclusion as the State Attorney did and later convicted Joseph."

Varela continued, "We are currently working with the State Attorney's Office to research the defense counsel's current assertion that this was the wrong individual that was convicted of this criminal act."

How was Joseph linked to crime?

Earlier Friday Benjamin said she wants to learn how her client, who says she never worked as a painter, was linked to this crime.

"How did you connect Ms. Joseph to the crime? That's all I really want to know," Benjamin said.

Asked about the police work leading to Joseph's arrest, Benjamin said, "I don't want to say there was sloppy police work here because I don't know Officer Varela. I don't know what was done. I just know what wasn't done."

Sgt. Barbara Jones, OPD spokeswoman, said the department doesn't comment on open cases.

Komanski also granted defense motions to have Joseph declared indigent for costs and to have an investigator probe the case as the defense prepares for a hearing next month on a motion for a new trial.

That hearing, however, may never materialize if prosecutors through their investigation determine the wrong woman was tried and the actual criminal never prosecuted.

Joseph, the mother of two young girls, said she had nothing to do with the crime and doesn't know the victim. She spent three months in jail before prosecutors agreed with her release Wednesday.

Varela has said he came up with Joseph as a suspect using vehicle-tag information. But specifics were not included in court records or police reports. The tag information also was not provided to the defense as part of pretrial discovery. And Varela was not deposed before the trial.

The prosecutor in this case, Assistant State Attorney Mexcye Roberts, walked out of the courtroom Friday, saying, "I have no comment."

"Merline" and "Malenne"

The owner of the damaged home and her sister identified Joseph through a photo and said she was the person who did the paint work. Pete Spaziano, who subcontracted the job, also positively identified Joseph as the painter during her trial in June.

Spaziano recently recanted his trial testimony; however, after learning Joseph stood only 5-foot-2. He insists the woman he hired to do the work was 5-foot-6 or taller.

Spaziano also provided the painter's cell-phone number to police. That number was later linked to a woman named "Merline." Defense attorneys suspect Merline actually committed the crime but was somehow mistaken with "Malenne," their client.

A woman using that phone number in 2007 admitted to Varela soon after the crime that she damaged the home, according to Joseph's arrest warrant, but she never showed up for a meeting with the police.

This week prosecutors handed the defense driver's license information and a photo for "Merline," another woman from Haiti who shares some facial similarities with Malenne Joseph.

Varela's personnel file at City Hall shows a steady progression of salary increases, a number of awards, commendations and certificates, generally positive evaluations and a switch from detective work back to road patrol.

The file, however, does not include information about internal investigations involving Varela. One resulted in a 2006 verbal reprimand after an altercation with a woman at a 7-Eleven. OPD purged that file.

A second, open internal investigation involves an incident with an arrestee who was slammed against an elevator wall earlier this year.

The officer's conduct in those cases could come up in the Joseph case at some point.

Anthony Colarossi can be reached at acolarossi@orlandosentinel.com or 407-420-5447.

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