text:
    William Thomas ZEIGLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC12-696.
    Supreme Court of Florida.
    Feb. 21, 2013.
    Rehearing Denied June 11, 2013.

      John Houston Pope of Epstein Becker & Green, P.C., New York, NY, Dennis H. Tracey, III and Joanna F. Wasick of Hogan Lovells U.S. LLP, New York, NY, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL and Kenneth Sloan Nunnel-ley, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

William Thomas Zeigler, Jr., appeals an order of the circuit court denying a motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes. For the reasons set forth below, we affirm the circuit court’s denial of the motion.

I. BACKGROUND

“In 1976, Zeigler was convicted of the first-degree murders of Eunice Zeigler, his wife, and Charlie Mays, a friend, and the second-degree murders of his in-laws, Perry and Virginia Edwards.” Zeigler v. State, 654 So.2d 1162, 1163 (Fla.1995). The facts are set forth in the Court’s opinion on direct appeal. See Zeigler v. State, 402 So.2d 365, 367-68 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). Zeigler pursued post-conviction relief in numerous state court proceedings, and we ordered resentencing in Zeigler v. Dugger, 524 So.2d 419 (Fla.1988). Zeigler’s resentencing occurred in 1989, and we affirmed Zeigler’s two death sentences on appeal. Zeigler v. State, 580 So.2d 127 (Fla.1991), cert. denied, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991).

Subsequently, Zeigler filed another post-conviction motion and a motion requesting the re-examination and DNA testing of certain evidence. See Zeigler, 654 So.2d at 1163. We affirmed the trial court’s denial of Zeigler’s postconviction motion and the trial court’s decision that Zeigler’s DNA claim was procedurally barred. Id. at 1164. We then stated the following regarding Zeigler’s DNA claim:

Even if there were no procedural bar, we do not believe that Zeigler has presented a scenario under which new evidence resulting from DNA typing would have affected the outcome of the case. Zeigler admitted that he was at the scene of the crime, and there is no dispute that his blood as well as the blood of the four victims was present at the crime scene. The State’s case was not entirely circumstantial, and in order to accept Zeigler’s theory of the case, the jury would have had to disbelieve at least three witnesses who testified at the trial. Zeigler’s request for DNA typing is based on mere speculation and he has failed to present a reasonable hypothesis for how the new evidence would have probably resulted in a finding of innocence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991) (The standard for a new trial based on newly discovered evidence is whether the evidence “would probably produce an acquittal on retrial.”). Acknowledging that the issue before us is whether Zeigler should be allowed to subject the evidence to DNA testing rather than whether he should be granted a new trial based on newly discovered DNA evidence, we find that even if the DNA results comported with the scenario most favorable to Zeigler, he still would not have been able to show that the evidence would have probably produced an acquittal.

Id. (second emphasis added).

Subsequently in 2001, Zeigler filed a motion for DNA testing for the purposes of clemency proceedings and argued that: (1) identifying the source of the blood on Mays’ clothing as the blood of Eunice or Perry could show that Mays was the perpetrator; (2) testing could reveal Zeig-ler’s blood throughout the store, which would discredit the State’s claim that he was not shot in the store; (3) identifying the source of the blood on Zeigler’s clothes could cast doubt on the State’s claim that he had the blood of the victims on his clothing and was therefore involved in the murders; and (4) identifying the source of several hairs found in the store might reveal whether Felton Thomas was in the store on the night of the murders, contradicting his testimony at trial. This time Zeigler’s motion for DNA testing was granted.

After testing was completed, Zeigler filed a motion to vacate his sentences based on the newly discovered evidence and a motion to authorize (nunc pro tunc) DNA testing under rule 3.853. Zeigler argued that the DNA results demonstrated that Perry’s blood was not on Zeigler’s shirt, which allegedly contradicted the State’s theory that Zeigler murdered Perry, and that whoever murdered Perry murdered the others. Furthermore, he argued that the DNA results revealed Perry’s blood was on Mays’ pants, which eor-roborated Zeigler’s trial testimony that Mays was a perpetrator rather than a victim. The trial court denied the motion, and we affirmed. See Zeigler v. State, 967 So.2d 125 (Fla.2007).

Specifically, in 2007, we agreed with the trial court’s findings that the presence of Perry’s blood on Mays’ clothing did not conclusively establish that Mays was the perpetrator and Zeigler was the victim because Mays and Perry were found near each other and, “if Mays were involved in a struggle with [Zeigler] while in close proximity with Perry’s bloodied body, it would not be surprising that Perry’s blood ended up on Mays’ shoes and pants during the altercation.” Id. at 130. Additionally, we agreed with the trial court’s finding that “the presence of Mays’ blood, and the absence of Perry’s, on [Zeigler’s] t-shirt does not conclusively show that [Zeigler] did not hold Perry in a headlock and beat him.” Id. Furthermore, we noted that “in 1995 this Court came to the same conclusion as the trial court while assuming that the DNA evidence would prove more favorable to Zeigler than it actually did.” Id. at 131.

Then, in 2009, Zeigler filed a motion for DNA testing under Florida Rule of Criminal Procedure 3.853, requesting to test his shirts; Mays’ shirts and shoes; Perry’s shirt, pants, tie, tie clip, and fingernails; and Eunice Zeigler’s clothing. Zeigler argued that DNA testing of these items will show (1) that Perry’s blood is not on his clothing, which will demonstrate that he did not kill Perry; (2) that Perry’s blood is on Mays’ clothing, which demonstrates that Mays was the perpetrator and renders the trial testimony of Felton Thomas unreliable; and (3) that the blood spatter on his shirt is not attributable to the beating of Mays. Following the evidentiary hearing, the circuit court denied Zeigler’s motion.

II. ANALYSIS

Zeigler now appeals the denial of his motion for postconviction DNA testing to this Court. Although the circuit court’s failure to make the findings specifically required by rule 3.858(c)(5) was improper, we affirm the circuit court’s denial of Zeig-ler’s motion. Zeigler’s claims are procedurally barred by collateral estoppel, and, even if Zeigler’s claims were not procedurally barred, he would not be entitled to relief on the merits.

A. Collateral Estoppel

Zeigler argues that his rule 3.853 motion is not barred by the principle of collateral estoppel, and furthermore that collateral estoppel, even if applicable, cannot be applied because it would result in a manifest injustice. We disagree.

In Florida, collateral estoppel prevents the same parties from relitigating issues that have already been fully litigated and determined. See State v. McBride, 848 So.2d 287, 290-91 (Fla.2003). In his present motion, Zeigler is seeking additional DNA testing based on variations of the same arguments he made in his previous motion for DNA testing in 2001, and we already affirmed the circuit court’s decision of these issues against him in Zeigler, 967 So.2d at 125.

Specifically, in his current motion, Zeig-ler argues that (1) additional testing of his shirts will show that Perry’s blood is not on his clothing and, therefore, he was not the assailant; (2) additional testing on Mays’ clothing will reveal Perry’s blood, which demonstrates that Mays was the actual perpetrator; and (3) additional testing on Zeigler’s shirts will show whether the blood spatter on them is really from Mays. However, we previously addressed these claims and held that the absence of Perry’s and the presence of Mays’ blood on Zeigler’s clothing did not establish that Zeigler was not the perpetrator. Id. at 130-31. Likewise, we also held that the presence of Perry’s blood on Mays’ clothing did not establish that Mays was the perpetrator rather than a victim. Id. Thus, we already decided these same issues against Zeigler.

Accordingly, Zeigler’s claims are barred by collateral estoppel, and we affirm the circuit court’s denial of his motion for post-conviction DNA testing.

B. The Merits

Additionally, on the merits, we conclude that, even if Zeigler’s claims were not barred by collateral estoppel, Zeigler would still not be entitled to relief because he has failed to demonstrate how the results of the additional DNA testing would give rise to a reasonable probability of acquittal or a lesser sentence.

Under rule 3.853, the motion must include, “a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime.” Fla. R.Crim. P. 3.853(b)(3). “It is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Consalvo v. State, 3 So.3d 1014, 1016 (Fla.2009) (quoting Robinson v. State, 865 So.2d 1259, 1265 (Fla. 2004)); Willacy v. State, 967 So.2d 131, 145 (Fla.2007); Hitchcock v. State, 866 So.2d 28, 27-28 (Fla.2004); see also Scott v. State, 46 So.3d 529, 533 (Fla.2009) (affirming denial of DNA testing because the defendant could not show how the requested DNA testing “would give rise to a reasonable probability that he did not commit the crime”); King v. State, 808 So.2d 1237, 1247-49 (Fla.2002) (affirming denial of DNA testing when defendant could not show that the result would raise a reasonable probability of acquittal or a life sentence). In order to determine whether DNA testing is warranted, the court must determine “[w]hether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” Fla. R.Crim. P. 3.853(c)(5)(C).

In this case, Zeigler has not met his burden of showing how the results of the DNA testing would give rise to a reasonable probability of a different outcome. First, he fails to present any viable arguments why more testing that shows more absence of Perry’s blood on Zeigler’s clothing would negate our previous conclusion that the absence of Perry’s blood on Zeig-ler’s clothing does not establish that he was not the perpetrator. Additionally, although Mr. Kish, a bloodstain expert, testified at the 2011 evidentiary hearing that he believed the six spatter samples he had selected on Zeigler’s clothing for additional testing would reveal whether Zeigler was in close proximity to Perry when he died, we conclude that the absence of Perry’s blood in these areas would not prove that Zeigler was not the perpetrator. Kish acknowledged at the evidentiary hearing that, even though the areas he selected for additional testing on Zeigler’s clothing were intended to result in a representative sampling of all the blood spatter stains on the garment, there was no way to know for sure that all of the contributors to the blood on Zeigler’s clothing would be identified unless every single bloodstain was tested. And Mr. Weiss, an expert in DNA identification, testified at the previous evi-dentiary hearing in 2004, that “it was possible to miss blood on the shirt, due to deterioration and improper storage” and that “[i]t was also possible to have a mixed stain, from multiple contributors, in the same area.” Zeigler, 967 So.2d at 130 (quoting trial court order). Therefore, even if additional testing on the six areas again revealed the absence of Perry’s blood, it still would not give rise to a reasonable probability of acquittal or a lesser sentence.

Second, Zeigler has failed to explain how further testing of Mays’ clothing and the discovery of more of Perry’s blood on Mays’ clothing would give rise to a reasonable probability of acquittal or a lesser sentence. We previously stated that the presence of Perry’s blood on Mays’ clothing did not prove that Zeigler was not the perpetrator because, “if Mays were involved in a struggle with [Zeigler] while in close proximity with Perry’s bloodied body, it would not be surprising that Perry’s blood ended up on Mays’ shoes and pants during the altercation.” Id. at 130 (quoting trial court order). Moreover, the bloodstain expert testified at the 2011 evi-dentiary hearing that he had examined Mays’ clothing and shoes and did not believe that additional testing needed to be performed on these items.

Third, Zeigler has failed to explain how further testing on his shirts and the discovery of more of Mays’ blood on his shirt will give rise to a reasonable probability of acquittal or lesser sentence when the prior testing already determined that Mays’ blood is on Zeigler’s shirt, and we found this was not exculpatory. See id. Furthermore, Zeigler completely fails to address how DNA testing of Perry’s clothing, tie, tie clip, and fingernails, and Eunice Zeigler’s clothing -will exonerate him or mitigate his sentence.

Accordingly, because Zeigler has failed to present an argument giving rise to a reasonable probability that he would be acquitted or would have received a lesser sentence, he is not entitled to the requested DNA testing.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s denial of Zeigler’s motion for postconviction DNA testing.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

QUINCE, J., concurs in result only.

CANADY, J., recused.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . See Zeigler v. State, 452 So.2d 537 (Fla.1984) (remanded for an evidentiary hearing on his postconviction claim of judicial bias); Zeigler v. State, 473 So.2d 203 (Fla.1985) (affirmed denial of judicial bias claim); State v. Zeigler, 494 So.2d 957 (Fla.1986) (reversed the trial court’s order granting an evidentiary hearing on postconviction claim that the trial judge failed to consider nonstatutory mitigating circumstances).

      . We agree with Zeigler that his motion for postconviction DNA testing was not barred because it was successive. See Fla. R.Crim. P. 3.853(b)(2), (d) (stating that rule 3.853 motions "may be filed or considered at any time following the date that the judgment and sentence in the case becomes final” and noting the possibility of additional DNA testing).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Grover REED, Appellant, v. STATE of Florida, Appellee.
    No. SC11-2149.
    Supreme Court of Florida.
    Feb. 28, 2013.
    Rehearing Denied June 11, 2013.

      Martin J. McClain of McClain & McDer-mott, P.A., Wilton Manors, FL, for Appellant.
    Pamela Jo Bondi, Attorney General and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the denial of relief.

FACTS AND PROCEDURAL HISTORY

Grover Reed was convicted of the first-degree murder of Betty Oermann and was sentenced to death. The underlying facts are set forth in our opinion on direct appeal, in which we affirmed Reed’s conviction and sentence. Reed v. State, 560 So.2d 203 (Fla.1990). Reed filed an initial postconviction motion, and after this Court remanded for an evidentiary hearing on some of his ineffective assistance of counsel claims, see Reed v. State, 640 So.2d 1094, 1098 (Fla.1994), the postconviction court denied relief. This Court affirmed on appeal and denied Reed’s petition for writ of habeas corpus. Reed v. State, 875 So.2d 415, 440 (Fla.2004).

On March 16, 2011, Reed filed an amended successive postconviction motion to vacate his judgments of conviction and sentence, asserting the following claims: (1) Reed’s sentence violates the Sixth and Eighth Amendments under Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009); (2) newly discovered evidence establishes that Reed is innocent of the murder for which he was convicted and manifest injustice warrants invocation of the court’s inherent equitable powers and the issuance of rule 3.851 relief; and (3) Reed’s sentence violates the Eighth Amendment because a drug constitutionally required to prevent lethal injections from being cruel and unusual is unavailable to the State of Florida. On May 7, 2011, Reed filed a motion for discovery with regard to the second postconviction claim of newly discovered evidence of Reed’s innocence, requesting production of a photograph card of an unidentified fingerprint found on the victim’s check. Reed sought to compare the unidentified fingerprint with that of Dwayne Kirkland, a now-deceased death row inmate who Reed contends was the real murderer. On September 7, 2011, the postconviction court denied Reed’s motion for discovery and summarily denied his amended successive postconviction motion.

Reed appeals, raising the following claims for our review: (1) the circuit court erred in not accepting affidavits executed by James Wayne Hazen and Johnny Shane Kormondy as true and by not evaluating the newly discovered Brady evidence of Kirkland’s confession cumulatively with Reed’s previously presented Brady /Giglio and Strickland claims, and it was error to summarily deny Reed’s claim without conducting an evidentiary hearing; (2) the circuit court erred in denying Reed’s motion for discovery and in refusing to give Reed access to the photograph of the latent print on check number 400 so that it could be compared to Kirkland’s fingerprints; (3) the failure to apply the proper Strickland standard of review in Reed’s case while numerous similarly situated individuals have received the benefit of proper Strickland analysis violates Reed’s equal protection and due process rights, as well as his Eighth Amendment rights; and (4) Reed was deprived of his due process rights of notice and opportunity to be heard and to present evidence on his challenge to Florida’s lethal injection procedures when the circuit court summarily denied his Rule 3.851 challenge to the new lethal injection protocol and in denying his request for an evidentiary hearing on the claim.

On September 25, 2012, Reed filed a motion to relinquish jurisdiction, or in the alternative, allow supplemental briefing regarding his lethal injection claim, asserting that the Florida Department of Corrections had again revised the lethal injection protocol on September 4, 2012, and changed the second drug used in the three-drug protocol. This Court denied Reed’s motion.

ANALYSIS

Postconviction Motion

In his amended successive postconviction motion with the circuit court below, Reed asserted that he was entitled to relief based on newly discovered evidence of two affidavits executed by James Wayne Hazen, an inmate, and Johnny Shane Kormon-dy, a death row inmate, stating that another death row inmate, Dwayne Kirkland, who is now deceased, confessed to them that he killed an old white lady in Jacksonville in the mid 1980s. The postconviction court summarily denied relief. We find that the postconviction court correctly summarily denied relief.

a.Timeliness

The postconviction court correctly found Reed’s claim time-barred. Rule 3.851(d)(2) provides that a motion for post-conviction relief must be filed within one year of a defendant’s judgment and sentence becoming final unless the motion alleges:

(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.

Further, “[t]o be considered timely filed as newly discovered evidence, the successive 3.851 motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence.” Jimenez v. State, 997 So.2d 1056, 1064 (Fla.2008); Clark v. State, 35 So.3d 880, 892 (Fla.2010) (citing rule 3.851(d)(2)(A) in holding that “[cjlaims of newly discovered evidence must be raised within one year of the time of discovery.”). As determined by the postcon-viction court, Reed’s newly discovered evidence claim fails to meet the one-year deadline, because although the affidavits were signed in January of 2007, the successive motion raising this claim was not filed until November of 2010.

b.Standard of Review

Furthermore, the record in this case conclusively shows that Reed is entitled to no relief. In Walton v. State, 3 So.3d 1000 (Fla.2009), this Court articulated the standard of review of a summarily denied postconviction motion:

A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is entitled to no relief. See Fla. R.Crim. P. 3.851(f)(5)(B). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the mov-ant is entitled to no relief.

Id. at 1005.

c.Newly Discovered Evidence

Reed claims that the Hazen and Kor-mondy affidavits constitute newly discovered evidence and that the circuit court erred when it denied this claim without an evidentiary hearing. We disagree.

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: (1) the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence; and (2) the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State (Jones II), 709 So.2d 512, 521 (Fla.1998). “Newly discovered evidence satisfies the second prong of the Jones II test if it ‘weakens the ease against [the defendant] so as to give rise to a reasonable doubt as to his culpability.’ ” Gore v. State, 91 So.3d 769, 774 (Fla.) (quoting Jones II, 709 So.2d at 526), cert. denied, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012). “ ‘If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.’ ” Id. at 774 (quoting Marek v. State, 14 So.3d 985, 990 (Fla.2009)).

Even taking Reed’s assertions as true, Reed fails to establish the second prong that the newly discovered evidence would probably produce an acquittal or less severe sentence on retrial. The affidavits of Hazen and Kormondy stating that Kirkland confessed to murdering an old white woman in Jacksonville in February of 1986, do not implicate Kirkland in the murder for which Reed was convicted. No specific names, places, or dates were provided by Kirkland or the affidavits in order to link Kirkland’s confession to the murder for which Reed was convicted. Moreover, none of the information in the affidavits negates the ample evidence implicating Reed in the murder, including Reed’s own confessions and his fingerprints, hat, and hair found at the murder scene. See Reed, 875 So.2d at 419, 422, n. 5. This, in addition to the inherent credibility issues surrounding affidavits of two incarcerated men implicating another death row inmate who is now deceased in a murder, when considered in conjunction with the evidence at Reed’s trial and 3.850 proceedings, are not of such nature that they would probably produce an acquittal or less severe sentence on retrial. Cf. Clark v. State, 35 So.3d 880, 891 (Fla.2010) (“Clark waited two years to raise the claim. Further, the postconviction court found that Clark ‘failed to establish that this evidence would have been admissible at [his] trial’ and that ‘Thompson’s testimony was not of such nature that it would probably produce an acquittal for the Defendant on retrial, especially in light of Thompson’s [an inmate implicating a third inmate] credibility issues.’ ”) (footnote omitted); Hitchcock v. State, 991 So.2d 337, 349-51 (Fla.2008) (finding that the circuit court did not err in denying post-conviction relief with regard to a newly discovered evidence claim based on a deceased third party’s alleged confession, in light of the credibility issues of the witnesses who testified to said confession, the evidence implicating Hitchcock, and the fact that the evidence presented was unlikely to change the verdict where the jury had already rejected the same defense theory); Herrera v. Collins, 506 U.S. 390, 417-18, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (observing, in a capital case, where the affidavits exonerating the defendant were given over eight years after petitioner’s trial, that “[n]o satisfactory explanation has been given as to why the affiants waited until the 11th hour — and, indeed, until after the alleged perpetrator of the murders himself was dead — to make their statements.”).

d. Brady Claim

Reed asserts a Brady claim regarding Edith Bosso’s interview statement to police of her observations on the evening of February 27, 1986, wherein she stated that when she was returning home from the dog track, she saw a black man walking in the neighborhood at about 6:30 p.m. toward Ortega Forest Drive. Bosso described the man as wearing dark clothes and having something sticking out of his back pocket. She described this man as slender and about six feet in height. Reed claims that the State did not provide this interview information to the defense before the trial, and that the newly discovered evidence provided by the Hazen and Kormondy affidavits that Kirkland, a black man, confessed to killing an old white woman in Jacksonville in the 1980s made the exculpatory and material nature of the Brady violation of Bosso’s interview information apparent.

To establish a Brady violation, a defendant must show: (1) that favorable exculpatory or impeaching evidence (2) was suppressed by the State, either willfully or inadvertently, and (3) that the evidence was material. Evidence is material or prejudicial if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. That is, the undisclosed favorable evidence, reasonably “considered in the context of the entire record,” must undermine confidence in the verdict.

Buzia v. State, 82 So.3d 784, 797 (Fla.2011) (citations omitted).

The interview information was not material or prejudicial. See Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006) (recognizing that Brady ’s materiality prong test is the same as Strickland’s prejudice prong test). None of the interview information negates or impeaches the ample evidence of Reed’s guilt, including Reed’s own confessions and Reed’s fingerprints, hat, and hair at the crime scene. Reed, 875 So.2d at 419, 422, n. 5. The undisclosed evidence reasonably considered within the context of the entire record, does not undermine confidence in the verdict.

e. Porter Claim

We affirm the denial of Reed’s claim that Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), is retroactive. See Walton v. State, 77 So.3d 639 (Fla.2011). Although Reed requests that this Court reconsider its decision in Walton, he has not provided any compelling reason for us to do so.

Reed also argues that refusing to apply the benefit of the “evolutionary refinement” of Porter to his case, where Porter received that same benefit, is arbitrary and a violation of due process. This claim is without merit. This Court stated in Walton that Porter “involved a mere application and evolutionary refinement and development of the Strickland analysis, ie., it addressed a misapplication of Strickland.” Walton, 77 So.3d at 644 (emphasis added). This Court did not state that the Strickland standard had changed such that it would be a violation of due process and unconstitutionally arbitrary not to apply it in Reed’s case. Accordingly, we affirm the circuit court’s denial of this claim.

f. Lethal Injection Claim

Reed asserts that Florida’s new lethal injection protocol is unconstitutional. This claim is controlled by this Court’s decision in Valle v. State, 70 So.3d 530, 546 (Fla.), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011) (affirming the circuit court’s denial of Valle’s postconviction claim that the substitution of pentobarbital for sodium thiopental constituted cruel and unusual punishment); see also Pardo v. State, 108 So.3d 558, 561 (Fla.2012) (reaffirming Valle), cert. denied, - U.S. -, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012).

Reed asserts that because he filed an amended Rule 3.851 motion with this claim before the defendant in Valle, Reed should be granted an evidentiary hearing on this issue. Specifically, although this Court denied in Valle the merits of Reed’s lethal injection claim, Reed nevertheless contends that because he brought a claim before Valle and because this Court ultimately determined in Valle that an eviden-tiary hearing was warranted, he is entitled to an evidentiary hearing of his own.

Even accepting for the sake of argument that the circuit court erred in summarily denying Reed’s initial lethal injection claim with respect to the new drug, which was filed before this Court decided the merits of Valle, any such error would be harmless. Reed did not allege what evidence he would present differently than was considered in Valle. Nor did he present any allegations beyond those of Valle. See Ventura v. State, 2 So.3d 194, 198 (Fla.2009) (“We have repeatedly and consistently rejected Eighth Amendment challenges to Florida’s current lethal-injection protocol.... Ventura has not presented any allegations beyond those of Lightb-ourne and Schwab (who predicated his claims upon those of Lightbourne). This Court has thus previously rejected each of these challenges to Florida’s lethal-injection protocol and — based upon the sound principle of stare decisis — we continue the same course here.” (citations and footnote omitted)); Schwab v. State, 969 So.2d 318, 323, n. 2, 325 (Fla.2007) (“In this case, judicial notice would have been sufficient because Schwab has not presented any argument as to specific evidence he wanted to present in this case that had not been presented in the Lightbourne proceeding.” “Given the record in Lightb-ourne and our extensive analysis in our opinion in Lightbourne v. McCollum, we reject the conclusion that lethal injection as applied in Florida is unconstitutional.”).

Based on the foregoing, we affirm the circuit court’s denial of relief on Reed’s posteonviction motion.

Motion for Discovery

A Florida Department of Law Enforcement (FDLE) report dated March 10, 1986, noted that two latent fingerprints of value for identification were developed and that photographs of the unidentified latent fingerprints were prepared for FDLE’s files. FDLE fingerprint specialist, Bruce Carl Scott, ultimately concluded that one of the latent prints matched Reed’s known prints. However, the other latent fingerprint of value for identification was not matched to Reed and remained unidentified through Reed’s trial. Based upon the Hazen and Kormondy affidavits, Reed filed a Motion for Discovery on or about May 7, 2011, requesting production of the fingerprint card containing the unidentified fingerprint so that it could be compared to Kirkland’s fingerprints. At the same time, Reed again raised the credibility of the fingerprint evidence offered against him at trial.

The motion was considered simultaneously with Reed’s amended successive postconviction motion filed on or about March 15, 2011. The circuit court found that because Reed’s newly discovered evidence claim was both untimely and without basis, Reed was not entitled to the discovery he sought in his motion. The circuit court also noted that the credibility of the fingerprint evidence offered against the defendant at trial was specifically addressed at the rule 3.850 evidentiary hearing conducted by the circuit court pursuant to Reed’s initial postconviction motion, which was addressed and affirmed on appeal, and thus was procedurally barred from further litigation. See Reed, 875 So.2d at 426-28. The postconviction court thus denied Reed’s motion for discovery of the fingerprint card. Reed asserts that the circuit court erred in denying this motion.

“There is no unqualified general right to engage in discovery in a post-conviction proceeding. ‘[A]vailability of discovery in a postconviction case is a matter firmly within the trial court’s discretion.’ ” Johnston v. State, 27 So.3d 11, 24 (Fla.2010) (quoting Marshall v. State, 976 So .2d 1071, 1079 (Fla.2007)). “[A] trial court’s determination with regard to a discovery request is reviewed under an abuse of discretion standard.” Id. (quoting Overton v. State, 976 So.2d 536, 548 (Fla.2007)).

We find that the postconviction court did not abuse its discretion by denying Reed’s motion for discovery. There is no reasonable probability that the testing results of the fingerprint card would result in an acquittal on retrial. Testing the other unidentified fingerprint would not negate the fact that Reed’s fingerprints were found on the victim’s check, which were taken from the murder scene and were reconfirmed during a postconviction evidentiary hearing in 2002 to be Reed’s. Nor would the other fingerprint negate the other substantial evidence implicating Reed as stated above. Thus, Reed has not shown that his request for the picture of the unidentified latent fingerprint on the check would result in discovery of relevant or material evidence.

Furthermore, to any extent Reed reasserts that defense counsel was ineffective for failing to present an expert fingerprint witness during trial, such argument was fully litigated and addressed on the merits in Reed’s initial postconviction appeal and is procedurally barred. See Reed, 875 So.2d at 426-28.

Accordingly, the postconviction court did not abuse its discretion by denying Reed’s motion for discovery of the fingerprint card.

CONCLUSION

Based on the foregoing, we affirm the circuit court’s denial of Reed’s successive postconviction motion and denial of Reed’s motion for discovery.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . Reed filed his successive postconviction motion through his federal registry counsel, asserting the following claims: (1) Reed's sentence violates the Sixth and Eighth Amendments under Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009);and (2) newly discovered evidence establishes that Reed is innocent of the murder for which he was convicted and that manifest injustice warrants invocation of the court's inherent equitable powers and the issuance of rule 3.851 relief. The State responded with a motion to strike the postconviction motion because federal counsel was not permitted to file in state court proceedings. Reed filed a motion for appointment of federal counsel in state court proceedings, which the postcon-viction court granted on November 15, 2010.

        . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

        . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: PERRY, J.,

text:
    William VAN POYCK, Appellant(s) v. STATE of Florida, Appellee(s).
    Nos. SC73662, SC13-851.
    Supreme Court of Florida.
    May 20, 2013.
   William Van Poyck is a prisoner under sentence of death and under an active death warrant, which was signed by the Governor on May 3, 2013. The date of execution is set for Wednesday, June 12, 2013, at 6:00 p.m. On May 15, 2013, Gerald Bettman filed his Notice of Appeal of the circuit court’s Order on Hearing to Determine Counsel and Amended Order on Case Management Hearing, and the State moved to dismiss the Notice of Appeal on May 16, 2013. We deny relief sought by Mr. Bettman in his Notice of Appeal. We also deny, as moot, the State’s Motion to Dismiss.

On May 15, 2013, Jeffrey Davis, on behalf of himself and the law firm of Quarles & Brady LLP, filed a Motion to Withdraw in the Absence of Stay; and on May 16, 2013, the State filed its response. On May 15, 2013, Mark Olive filed his Motion to Withdraw in the Absence of Measures to Assure Compliance with Florida Rules of Professional Conduct; on May 16, 2013, the State filed its response, and on May 16, 2013, Mr. Olive filed his reply. On May 17, 2013, Mr. Davis and Mr. Olive each filed a Notice of Inability Ethically to Satisfy the Lower Court’s Schedule. We deny Mr. Davis and Mr. Olive’s motion(s) to withdraw. Gerald Bettman, Jeffrey Davis, and Mark Olive remain as counsel for Mr. Van Poyck.

We deny the request for a stay of Mr. Van Poyck’s execution. Noticeably absent from these recent filings is any substantive reason for granting a stay. We do, however, amend the scheduling order for any proceedings that may come before this Court as follows:

All proceedings pending in the trial court, if any, shall be completed and orders entered by 4:00 p.m., Wednesday, May 29, 2013. The notice of appeal shall be filed by 9:00 a.m., Thursday, May 30, 2013. The record on appeal shall be filed by noon, Friday, May 31, 2013. The initial brief on the merits shall be filed by 9:00 a.m., Monday, June 3, 2013. The answer brief on the merits shall be filed by 4:00 p.m., Tuesday, June 4, 2013. The reply brief on the merits shall be filed by noon, Wednesday, June 5, 2013. Oral argument, if necessary, will be scheduled at 9:00 a.m., Thursday, June 6, 2013.

Filing of the above briefs to this Court and to opposing counsel shall be via e-mail to the following address: warrant@ flcourts.org. Per this Court’s Administrative Order In Re: Electronic Filing in the Supreme Court of Florida Via the Florida Courts E-Filing Portal, AOSC13-7, dated February 18, 2013, counsel are directed to file pleadings with this Court through the Portal starting April 1, 2013. However, we direct that counsel for the parties file all pleadings in the above listed case via email to the following address: warrant@ flcourts.org and not through the Portal.

Copies of any pleadings filed by counsel in the trial court and the federal courts shall be sent via email simultaneously with filing in the other courts to the following address: warrant@ flcourts.org.

We deny the Motion for Leave to File Amicus Brief by Talbot D’Alemberte and Florida Association of Criminal Defense Lawyers.

No motion for rehearing will be entertained by the Court.

It is so ordered.

POLSTON, C.J., and LEWIS, CANADY, and LABARGA, JJ„ concur.

QUINCE, J., concurs with the majority’s decision that Gerald Bettman, Jeffrey Davis, and Mark Olive remain as counsel, but dissent from the decision denying a stay.

PERRY, J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.

PERRY, J.,

concurring in part and dissenting in part.

In light of the circumstances we find in this case, I concur with the majority’s decision to deny counsels’ motion to withdraw from representation of Mr. Van Poyck. However, I respectfully and profoundly dissent from the majority’s decision to deny counsel’s motion to grant a stay of execution in this case.

In my view, majority is willingly disregarding the reality that counsel has admitted that it is not prepared to provide Mr. Van Poyck with the level of representation he should be afforded under the Sixth and Fourteenth Amendments.

It is inexcusable for counsel to be unprepared to properly represent its client in light of the fact that these attorneys who are very familiar with Mr. Van Poyck’s case in the very recent past. E.g., Gerald Bettman and Jeffrey Davis have represented Van Poyck in many of Van Poyck’s cases, including as recent as 2011 (Davis in Federal Court) and 2012 (Bettman in this Court). Yet, I find it unsettling that the majority is intent on not granting a reasonable stay — 30 days — for these attorneys, or some other court-appointed lawyers to have time to determine whether there are any justiciable issues that may be legitimately explored prior to the culmination of the pending death warrant signed by the Governor. There is little excuse why this Court should blindly ignore the fact that counsel has knowingly and willingly admitted that it cannot meet its constitutionally required duty to provide ineffective representation of this defendant.

I cannot ignore that Van Poyck, and every other person subject to the laws of this State, is deserving of this Court’s guard of his constitutionally — protected rights — including the right to effective assistance of counsel. To the extent that the majority has concerns that granting a stay of execution in this case will detrimentally affect the finality and stability of this Court’s jurisprudence, such concern is unfounded and unwarranted. This Court must ensure that the proper steps are taken, under the circumstances, in every case where the Governor has signed a death warrant, because the sentence of death is different and final. Accordingly, I respectfully dissent to extent that the majority’s decision denies a reasonable stay of execution in this case.

PARIENTE, J., concurs.


author: PER CURIAM. CANADY, J.,

text:
    Darius Jamine POLITE, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1812.
    Supreme Court of Florida.
    June 6, 2013.

      William Rudolf Ponall and Warren William Lindsey of Kirkconnell, Lindsey, Snure & Ponall, P.A., Winter Park, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Kristen Lynn Davenport and Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

Darius Polite petitions this Court to review the decision of the Fifth District Court of Appeal in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), which expressly and directly conflicts with decisions of the Second and Fourth District Courts of Appeal regarding the requirements for the admission of a record or memorandum of past recollection recorded under section 90.803(5), Florida Statutes (2008). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The Fifth District determined that the admission of past recollection recorded evidence does not require a witness to testify that the record or memorandum accurately reflects the witness’ knowledge. The court held that the statement would be admissible if the State could show through evidence from any source that the statement was made when the matter was fresh in the mind of the declarant and that it was accurate. As explained below, we adhere to the previously established rule. Accordingly, we affirm that one of the requirements for admission of past recollection recorded hearsay under section 90.803(5) is that when such evidence is offered, the witness must vouch for the accuracy of the record or memorandum. We quash the decision before us and approve the decisions in Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010); Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004); and Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003).

I. FACTUAL AND PROCEDURAL HISTORY

In July 2008, a deputy was dispatched to the home of Falisa Levine on the report of a home invasion robbery. When he arrived

Ms. Levine and her [two] daughters were in the front yard, and all of them were hysterical, not believing what had just occurred. The deputy spoke to Ms. Levine, who told him what happened and identified [Darius] Polite by name as one of the [three] men who broke into her home. She then gave a sworn written statement, detailing the events and again identifying Polite by name as one of the robbers. Later, she identified Polite in a photographic line-up.

Polite, 41 So.3d at 936-37.

Before Levine testified at trial, the prosecutor informed the judge that she was afraid something would happen to her if she testified. She reluctantly took the stand. When asked to recount what happened the morning of the crime, she initially claimed she did not remember but then admitted that when law enforcement arrived she told them what happened. She claimed, however, that she did not identify any of the perpetrators to the officers. The prosecutor showed her the sworn statement she gave police shortly after the crime, and Levine identified the statement as hers. When asked if it was “true and correct,” however, she claimed not to have read it. At that point, the court overruled the defendant’s “improper predicate” objection. Then Levine refused to read her statement and refused to testify to the events of July 14. The court sent the jury out and instructed Levine that she was under subpoena and could not refuse to answer questions.

When the jury returned, Levine testified that three men came to her house and kicked the door open. One man put a gun in her daughter’s face, and another picked up Levine’s purse. She spoke to the intruders but could not remember what she said. After she claimed lack of memory in response to further questions, the prosecutor again asked about her sworn statement. She again admitted that the statement was hers and said that she gave the statement about an hour after the crime. However, she claimed that the events were “not réally” fresh in her mind at the time because the “police and everybody was pressuring [her].” Before she could answer the prosecutor’s question of whether her statement was “true and correct,” defense counsel objected and immediately withdrew the objection.

After a bench conference, Levine resumed her testimony and stated that she did not give the three men permission to enter her house. The court then permitted the prosecutor to read the text of her sworn statement into the record:

I, Falisa Levine, was coming out of my bathroom when I heard a loud bang. I looked into my kitchen and noticed three black men entering the door by kicking it in. Two men I did not recognize, one I did only knowing him as Darius. Darius I know from the neighborhood. Darius then told me to get on the ground and also had handgun to head. When I screamed his name, Darius, he then said to other guys, we have the wrong house. One guy took my purse and Darius told him to put it back. The guys then ran out the door. Only two of the guys had handguns. Third guy did not. One of the guys did put handgun on kids. That is the guy that had his face covered up. The third guy came in after other two guys had already entered not doing anything but looking around. I then asked Darius why he is doing this and he said that he has the wrong house. He then walked outside leaving yard as I walked behind to see how they were traveling. I do know that this is Darius as soon as he entered my home. After that Darius then called my name. All the suspects left. I then tried to call police and phone line would not work. Second suspect did put purse on the shoulder and took my money totaling $250 out of my purse. That’s when Darius told him to put it back because this is like family.
First suspect 6'2, 200 pound black male; second suspect, 5'2, 130 pound, black male; third suspect, 5'2, 130 pound black male.
Sworn to and subscribed before me, this 14th day of July, 2008. Deputy Sheriff Brissette. I swear/affirm the above attached statements are correct and true, Falisa Levine.

Polite, 41 So.3d at 938. On cross-examination, defense counsel asked whether she could have made a mistake in her statement. Levine responded, ‘Tes. They was pressuring me. I don’t even know if I got the right person.”

Other evidence at trial established that the door of Levine’s home was damaged from being kicked in, leaving a shoeprint on the door, and her phone lines were cut. A videotape from a camera located across the street showed three men arrive at the house. After one went to the side of the house where the phone lines were located and returned, the three went inside. They left several minutes later. In addition, the evidence showed that, as a requirement of probation, Polite was wearing a GPS device at the time of the crime, and his reported location was within 50 feet of the victim’s home at the time of the crime. Polite was shoeless when police found and arrested him later that day. Further, the videotape of the business where Polite claimed to be at the time of the crime contained no pictures of Polite. Finally, an officer testified that Levine later identified Polite as one of the offenders in a photo line-up. Darius Polite was convicted of burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon.

On appeal, Polite argued that because the proper foundation for admitting the content of Levine’s written statement as past recollection recorded under section 90.803(5) was not established, the statement was not admissible. 41 So.3d at 939. Specifically, he contended that a basic requirement for admission was not met because the witness did not testify that her statement was accurate or that she was being truthful at the time she wrote the statement. The Fifth District acknowledged that Hernandez, Smith, and Montano held that the witness must testify to the accuracy of the statement. Id. at 940. The district court, however, disagreed with these cases and held that Levine’s statement was admissible, reasoning as follows:

Polite correctly points out that Florida case law, as it stands currently, does not allow a written statement to qualify as a past recollection recorded unless the de-clarant lays the foundation for its admission with testimony at trial that he or she recorded the statement when the described events were fresh in his or her mind, and attests to the accuracy of the statement (either by testifying that he or she made an accurate record of the fact or event or that he or she is confident that the facts would not have been written unless they were true)....
We disagree with these cases because they are contrary to the plain language of the statute and rule. Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness’ mind, and that it was accurate. This is the approach taken by several cases applying the companion provision in the federal rules relating to past recollection recorded — Federal Rule of Evidence 803(5) — or identical state evidence rules.

Id. at 940 (citations omitted). The court then applied this reasoning to the facts of the case and concluded that

[g]iven the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.

Id. at 941. After examining the other issues raised by Polite, the district court affirmed the defendant’s convictions and sentences. Id. at 943.

II. ANALYSIS

The Fifth District’s holding that the testifying witness is not required to vouch for the accuracy of the out-of-court statement for the content of the memorandum or record to be admissible conflicts with the decisions from two other district courts. The Fourth District and the Second District, in accordance with existing precedent, require the witness to vouch for the accuracy of the record. We begin our analysis of the hearsay exception contained in section 90.803(5) with a discussion of the rule and the previously established requirements for admission of statements of past recollection recorded.

A. The Rules Governing Admission of Past Recollection Recorded

Under federal and state law, hearsay evidence is generally inadmissible in court unless the hearsay statement falls within an established exception. See Fed.R.Evid. 802; § 90.802, Fla. Stat. (2008). The exception at issue in this case — past recollection recorded — is substantively the same under both federal and Florida law, although the language is not identical. Federal Rule of Evidence 803(5) provides as follows:

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In turn, under the Florida Evidence Code this hearsay exception in section 90.803(5) provides:

(5) Recorded recollection. — A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

Clearly, the rule requires that this hearsay evidence is admissible where the record or memorandum is “shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.” § 90.803(5), Fla. Stat. (2008). The rule does not impose the requirements on how this showing must be made. In fact, a note to the federal rule comments as follows:

No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate.

Fed.R.Evid. 803, 28 U.S.C.A. (West 2001) (Advisory Committee Notes, 1972 Proposed Rules, Note to Paragraph (5)). The plain language of both rules permits the admission of the contents of a record made by the witness where: (1) the witness had firsthand knowledge of the matter contained in the record or memorandum; (2) the memorandum was made near the time of the event when it was fresh in the witness’s memory; (3) the witness currently lacks sufficient memory to testify on the matter; and (4) the contents of the memorandum accurately reflect the witness’s knowledge. See Kenneth S. Broun, 2 McCormick on Evidence § 279, at 294 (6th ed. 2006).

Although the rules do not specify that the witness who once had knowledge of the matter and made the record must testify to the accuracy of the hearsay statement, both rules have been construed similarly to require it. See McCormick § 283, at 299 (“No particular method of proving the accuracy of the memorandum is prescribed by Federal 803(5).... However, the witness must acknowledge at trial the accuracy of the statement.”); Charles W. Ehrhardt, Florida Evidence, § 803.5, at 891 (2011) (“The foundation may be laid by testimony that the witness remembers making an accurate recording of the fact or event or by testimony that the witness is confident that the facts would not have been written unless they were true.”). This Court confirmed these requirements for admissibility in Garrett v. Morris Kirschman & Co., 336 So.2d 566, 570 n. 6 (Fla.1976), as follows:

When a witness identifies as such a writing made contemporaneously (or nearly so) with events as to which testimony is elicited, and testifies that he knew at the time it was written that it was accurate, he incorporates into his testimony by reference the record of past recollection. On this basis, the writing becomes admissible since it is supported by the witness’ oath, and he is available for cross examination.

Thus, in Florida, the witness’s testimony as to the correctness of the statement is essential to the admission of the evidence. In the next section, we examine the conflict cases which followed this precedent.

B. The Conflict Cases

As stated above, the established procedure for admitting a hearsay statement under 90.803(5) requires that the witness attest to the correctness of the memorandum or record admitted as past recollection recorded. A totality of the circumstances test like that adopted by the Fifth District has not previously been applied to the accuracy determination in lieu of the witness testifying to the accuracy. Below, we review the conflict cases which correctly follow the established rule for admission of statements of past recollection.

Two of the decisions — Montano and Hernandez — were issued by the Fourth District. Montano involved a criminal trial in which the defendant was charged with possession of a firearm by a convicted criminal. The defendant’s girlfriend testified regarding the incident at their home that precipitated the charge. However, she disavowed any memory of a gun. 846 So.2d at 679. Over objection, the trial court admitted the witness’s statement under section 90.803(5) after finding the contents of the statement “consistent” with the testimony of other witnesses and “the surrounding circumstances.” 846 So.2d at 680. Thus, the trial court considered the other evidence presented at trial to determine whether there was sufficient evidence of the statement’s accuracy. This is the same totality of the circumstances test that the Fifth District applied in Polite. On appeal, the Fourth District held that admission of the statement was error, albeit harmless. Id. at 682-88.

The witness in Montano remembered giving the statement but did not remember its content. 846 So.2d at 681. She did not testify, however, that her statement was accurate or that she would have been truthful in making the statement. Id. The Fourth District examined a number of authorities on evidence regarding the purposes of this hearsay exception and the requirements for admission of such evidence. Citing our decision in Garrett, the district court explained that

[t]he requirement that a witness vouch for the accuracy of his recorded recollection is consistent with the view that the hearsay exception is justified because a witness, who is available for cross-examination, “incorporates into [his] testimony by reference the record of past recollection.” Garrett, 336 So.2d at 570 n .6. Unlike exceptions to the rule against hearsay which derive their reliability from the circumstances that surround the making of an out-of-court statement, the reliability of a recorded recollection depends on the credibility of its maker. For this reason, the law requires the maker to adopt the recorded recollection as his own.

Montano, 846 So.2d at 681-82 (emphasis added). The court emphasized that in Florida, the witness’s testimony to the accuracy of the statement is a “foundational requirement.” Id. at 682.

Later, in Hernandez, the Fourth District considered a similar scenario. The police recorded a conversation between the victim and her aunt, the defendant’s wife. 31 So.3d at 876. During the conversation, the victim’s aunt admitted that the defendant had confessed to her that he sexually abused the victim. Id. Before the aunt testified, the tape of the conversation was played for her and a transcript was provided. Id. Although she recognized her own voice, she said she could not hear what was being said. Id. Then, on the stand, she denied the defendant had confessed to her and testified that “neither the tape nor the transcript refreshed her memory.” Id. The district court cited the proper test for admission as follows:

If the proper foundation is laid, a tape-recorded statement may qualify as a recorded recollection. To be admitted into evidence, the past recollection recorded must be offered by the witness who is either devoid of a present recollection, or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. “The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making.”

31 So.3d at 878 (citations omitted). The district court found that the witness was “unable, or unwilling, to attest to the accuracy of the taped conversation,” and that her live testimony contradicted the contents of the tape recording. Id. Accordingly, the court applied existing Florida law regarding the requirements for admission of records of past recollection and held the evidence was inadmissible. Id. at 878-79.

Finally, in Smith, the Second District overturned a manslaughter conviction, holding that the admission of several witness statements under section 90.803(5) was erroneous and that the error was not harmless. 880 So.2d at 732. Each of three witnesses had given sworn statements to the police after the incident, and at trial each recanted. Id. at 734. When asked about their statements, they testified “that they either did not remember giving a statement or that they had not given a statement at all.” Id. at 736. In addition, they testified that they did remember the events of the evening of the crime, and their testimonies contradicted the contents of the statements made to law enforcement. Citing Ehrhardt’s Florida Evidence and the Fourth District’s opinion in Montano, the district court held that “the State failed to establish two critical threshold requirements of the recorded recollection exception.” Id. at 786.

First, the recanting witnesses did not testify that they had given the tape-recorded statements and that they accurately reflected their memory of events at the time they were made. Each of the recanting witnesses testified that they either did not remember giving a statement or that they had not given a statement at all. In order for a memorandum or record to qualify as recorded recollection, the witness must testify that he made an accurate record of the fact or event or that he is confident that the facts would not have been written unless they were true.

Id. (emphasis added).

Second, the State failed to establish another critical threshold requirement of the recorded recollection exception because the State failed to show that the witnesses had an insufficient recollection of the events on the night of the shooting to enable them to testify fully and accurately. The recorded recollection exception requires that the witness have a present loss of memory concerning a matter about which the witness once had knowledge but now cannot adequately remember. Before the adoption of the evidence code, Florida decisions approving “past recollection recorded” evidence emphasized that the witness “had no present recollection” independent of the record. Presently, under section 90.808(5), a sufficient foundation may be shown if the witness merely “now has insufficient recollection to enable the witness to testify fully and accurately.”

880 So.2d at 738 (citations omitted) (emphasis added).

There are admittedly few cases in Florida addressing the requirements for admitting past recollection recorded. These three cases from the Second and Fourth Districts, however, correctly enunciate and apply the established test for admission of such statements under section 90.803(5).

C. Resolving the Conflict

Above, we explained the requirements for admission of statements under section 90.803(5). We now turn to the Fifth District’s decision in Polite and begin by examining two of the cases on which the district court relied in concluding that it was not necessary for the witness to attest to the accuracy or correctness of the record of past recollection.

In United States v. Porter, 986 F.2d 1014 (6th Cir.1993), the teenage girlfriend of the defendant had given a statement to the FBI relevant to the charges against him. At trial, she recalled the statement but not its contents. Id. at 1016. As to the statement’s accuracy, she testified that “she tried to tell the truth in the statement, [but] she was not sure she had done so” because she was using drugs at that time. Id. at 1017. The trial court admitted her statement as past recollection recorded upon consideration of a number of factors, including that it was consistent and detailed, and it was signed under penalty of perjury and made when the witness feared reprisal from the defendant. Id. On appeal, the Sixth Circuit upheld the admission of the contents of the statement into evidence, commenting that

Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration, as was done by the district court in this case, of factors indicating trustworthiness, or the lack thereof.
While Rule 803(5) treats recorded recollection as an exception to the hearsay rule, the hearsay is not of a particularly unreliable genre. This is because the out-of-court declarant is actually on the witness stand and subject to evaluation by the finder of fact.

Id. at 1017.

Applying Porter’s reasoning, the Vermont Supreme Court in State v. Marcy, 165 Vt. 89, 680 A.2d 76, 79-80 (1996), admitted a witness’s statement using this same approach to determine accuracy. The witness testified that she did not remember her husband’s assault on her but did remember obtaining a restraining order and being interviewed by police. Id. at 78-9. She did not, however, testify to the accuracy of her tape-recorded statement. The Vermont Supreme Court opined that “the language of the rule contemplates a more flexible case-by-case determination of the admissibility of a statement as past recollection recorded, that evaluates the trustworthiness of the prior statement instead of focusing on hyper-technical evidentiary requirements.” Id. at 80. Accordingly, the court found the trial court correctly admitted the taped interview based on a number of factors, including the close proximity in time of the witness’s statement to the event, the coherence of her statement, and the consistency between her statement and other testimony. Id. at 79.

Although in Montano the Fourth District expressly rejected Many’s reasoning because it did not “reflect[] the law of Florida,” 846 So.2d at 682, the Fifth District subsequently embraced both Many and Porter. Thus, in Polite the district court declared that the requirement that the witness attest to accuracy is “contrary to the plain language of the statute and rule” and concluded that a statement of past recollection is admissible “so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness’ mind, and that it was accurate.” 41 So.3d at 940. Noticeably absent from the cases on which the Fifth District relies, however, is any discussion or acknowledgment of the purpose of having the witness attest to the accuracy of the record of the witness’s past recollection. Moreover, the historical and legal analysis supporting the requirement that is provided in Montano, 846 So.2d at 680-82, goes unaddressed in Polite as well.

We reject the Fifth District’s embrace of a totality of the circumstances test and affirm that in Florida the admission of past recollection recorded under section 90.803(5) requires the witness to indicate that the statement was made at a time when the events were fresh in his or her mind and also attest to the accuracy of the memorandum or record. We have previously explained that recording the statement while the matter is fresh in the witness’s mind is important because the statement is the record of the event or matter. Contrasting this hearsay exception from refreshing memory, we stated:

There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection. It is for that reason that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it.

Middleton v. State, 426 So.2d 548, 551 (Fla.1982) (quoting Volusia Cnty. Bank v. Bigelow, 45 Fla. 638, 83 So. 704, 706 (1903)). Thus, when statements of past recollection recorded are admitted under this hearsay exception, “the facts are being offered from the record or memorandum,” not from the witness’s testimony. See Ehrhardt, § 803.5 at 891. That is, the contents of the record substitute for the witness’s testimony. Id. at 894. This means that “the reliability of the assertions rests upon the veracity of a witness who is present and testifying.” McCormick, § 279, at 294; see 3 Wigmore on Evidence § 747, at 97 (Chadbourn rev. ed. 1970) (“The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time.”). Accordingly, a witness must testify that the recorded statement accurately reflects the witness’s knowledge. If the witness is unable to adequately recall making the record, the witness may nevertheless verify the record or memorandum by testimony that: (1) although the witness does not recall the statement, the witness has a habit of recording such matters correctly or (2) the witness believes the statement is correct because the witness would have been truthful in providing the statement. See McCormick, § 283, at 298-99; Wigmore, § 747, at 98-9. Thus, we reiterate our previous statement' from Garrett that a writing is admissible when identified by a witness to have been made contemporaneously with the events in question and about which a witness testifies was accurate at the time written. 336 So.2d at 570 n. 6.

D. Conclusion

In this case, a proper foundation for admission of the witness’s statement of past recollection recorded was not established. As we have explained above, the hearsay statement was inadmissible because the witness did not vouch for its accuracy or correctness. Accordingly, we quash the Fifth District’s decision in this case and remand for further proceedings in accordance with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

CANADY, J.,

dissenting.

I would discharge jurisdiction because the Fifth District Court of Appeal’s decision in this case, Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), does not conflict with the decisions of the Fourth District in Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010), and Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003), and of the Second District in Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004). Our discretionary jurisdiction over a case alleged to be in express and direct conflict, see art. V, § 3(b)(3), Fla. Const., requires that the “district court decision under review ‘must contain a statement or citation effectively establishing a point of law upon which the decision rests.’” Tippens v. State, 897 So.2d 1278, 1280 (Fla.2005) (quoting Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988)). In Polite, the district court expressly held that the defendant’s claim of error regarding the admission of evidence of past recollection recorded “was not properly preserved for appellate review.” 41 So.3d at 939; see § 90.803(5), Fla. Stat. (2008) (governing admission of past recollection recorded). The Fifth District’s decision rests on this holding. Accordingly, the district court’s further discussion of its “belief’ that had the claim been preserved, the defendant would not be entitled to relief is dicta. See 41 So.3d at 939. As a result, there is no conflict of decisions regarding the admissibility of evidence under section 90.803(5) providing a basis for the Court’s exercise of its discretionary jurisdiction.

POLSTON, C.J., concurs.

      . We disagree with the Fifth District’s holding that Polite did not preserve for appeal the claim that the foundation for admission of the statement under section 90.803(5) was not laid. See Polite, 41 So.3d at 939.

      . The rule was amended in 2011 for stylistic purposes only. See Fed.R.Evid. 803 cmt. 2011 Amendments.

      . In fact, it is because the contents of the record or memorandum are the equivalent of testimony, once admitted, the actual exhibit cannot be admitted as evidence unless the opposing party offers it. See Ehrhardt, § 803.5 at 894.


author: LEWIS, J.

text:
    In re CODE FOR RESOLVING PROFESSIONALISM COMPLAINTS.
    No. SC13-688.
    Supreme Court of Florida.
    June 6, 2013.
   LEWIS, J.

The Supreme Court of Florida Commission on Professionalism has requested that the Court adopt a Code for Resolving Professionalism Complaints which would include a structure to provide a process to more critically address professionalism issues in Florida. We have jurisdiction, art. V, § 15, Fla. Const. (“The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted”), and grant the request.

The current professionalism movement in Florida traces its formal beginning to a Florida Bar task force created in 1989 which generated a report to this Court in 1996 that reported lawyers’ professionalism to be in a state of “steep decline.” In July of 1996, The Florida Bar requested that this Court create the Supreme Court of Florida Commission on Professionalism with the overarching objective of increasing the professionalism aspirations of all lawyers in Florida and ensuring that the practice of law remains a high calling with lawyers invested in not only the service of individual clients but also service to the public good as well.

Recognizing that professionalism involves principles, character, critical and reflective judgment, along with an understanding of ourselves and others working in and under stressful circumstances, Florida has traditionally followed a more passive, academic approach to enhance and improve professionalism. Continuing legal education programs, speeches, contests, meetings and other academic methods of addressing professionalism have been implemented on both state and local levels. During the last two years, the Professionalism Commission has studied and reviewed both our status and progress in advancing professionalism. Although it is impossible to determine with scientific certainty the true or exact status of professionalism today, the passive academic approach to such problems has probably had a positive impact toward improving professionalism or at least maintaining the status quo by preventing a further decline as reported in 1996, the Professionalism Commission has concluded that we continue to experience significant problems that are unacceptable, requiring further and more concrete action. Surveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today. While we continue our educational approach, the Professionalism Commission concluded that further integrated, affirmative, practical and active measures are now needed. We agree.

Over the years, we have come to understand that professionalism or acceptable professional behavior is not simply a matter of character or principles nor is it simply an issue of rule-following or rule-violating. To the contrary, unacceptable professional conduct and behavior is often a matter of choice or decision-making. Therefore, we accept the proposal of the Professionalism Commission to create a structure for affirmatively addressing unacceptable professional conduct. This first step admittedly contains small initial measures designed to firmly encourage better behavior. This structure attempts to utilize a wide range of interventions from mere conversations to written communications to more severe sanctions as may be applied under our existing Florida Code of Professional Responsibility, which continues above and beyond the structure we approve today.

As a first step, the Professionalism Commission has concluded and now proposes that we should not attempt to create an entirely new code of “professional” or “unprofessional” conduct nor should we, at this time, attempt to codify an entirely new “Code of Professionalism.” We agree with this approach. The Professionalism Commission has proposed, and we adopt, the collection and integration of our current and already existing standards of behavior as already codified in: (1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court into and as part of the Code for Resolving Professionalism Complaints we adopt today. This provides an integrated standard based on the standards previously adopted and already in existence for many years. These standards have been previously approved and are in use, but are not expressed and placed in one location as our standards of expected professional behavior.

The Professionalism Commission has also proposed that the mechanism for initiating, processing, and resolving professionalism complaints be the Attorney Consumer Assistance and Intake Program (ACAP) created by The Florida Bar. We agree and adopt this mechanism. ACAP has been previously created and already accepts, screens, mediates and attempts to resolve any complaints concerning professional behavior. This structure exists to receive and resolve any complaints before and in the place of the initiation of formal grievance proceedings.

The Professionalism Commission also recognized that pursuant to the Administrative Order issued by this Court on June 11, 1998, the Chief Judge of each circuit was directed to create and maintain in continuous operation a Circuit Committee on Professionalism. The Professionalism Commission has proposed that a local committee in each circuit be activated to receive, screen and act upon any and all complaints of unprofessional conduct and to resolve those complaints informally, if possible, or refer to The Florida Bar if necessary. We agree with this proposal and also adopt the Local Professionalism Panel plan. The Chief Judge of every circuit shall create a Local Professionalism Panel to receive and resolve professionalism complaints informally if possible. In the discretion of the Chief Judge, the Circuit Committee on Professionalism may be designated as the Local Professionalism Panel. The Chief Judge of each circuit is responsible for activating the respective committees.

The Code for Resolving Professionalism Complaints, attached as Exhibit A, was published for comments, comments were received and considered by the Professionalism Commission, and a public hearing was conducted. The Conference of County Court Judges and the Conference of Circuit Court Judges have responded in favor of the proposed Code as an initial step toward improving professional conduct in Florida. We hereby adopt the Code for Resolving Professionalism Complaints attached as Exhibit A, effective immediately. The Court extends its gratitude to the members of the Professionalism Commission, the Standing Committee on Professionalism, The Florida Bar Center for Professionalism, and The Florida Bar for the extensive work expended in connection with this major project.

It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

EXHIBIT A

Code for Resolving Professionalism Complaints

Standards of Professionalism

Members of The Florida Bar shall not engage in unprofessional conduct. “Unprofessional conduct” means substantial or repeated violations of the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Ideals and Goals of Professionalism, The Rules Regulating The Florida Bar, or the decisions of The Florida Supreme Court.

Unprofessional conduct, as defined above, in many instances will constitute a violation of one or more of the Rules of Professional Conduct. In particular, Rule 4-8.4(d) of The Rules Regulating The Florida Bar has been the basis for imposing discipline in such instances. See generally, The Florida Bar v. Ratiner, 46 So.3d 35 (Fla.2010); The Florida Bar v. Abramson, 3 So.3d 964 (Fla.2009); and The Florida Bar v. Martocci, 791 So.2d 1074 (Fla.2001).

Implementation Procedures

1. Terminology

1.1. Standards of Professionalism: The Standards of Professionalism are set forth in the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Ideals and Goals of Professionalism, The Rules Regulating The Florida Bar and the decisions of The Florida Supreme Court.

1.2. Complainant: The person who complains that an attorney’s conduct has violated the Standards of Professionalism.

1.3. Respondent: The attorney whose behavior is the subject of the complaint.

1.4. Attorney Consumer Assistance and Intake Program (ACAP): The program of The Florida Bar which fields and screens complaints against members ' of The Florida Bar. Depending upon the nature and severity of the professionalism complaint, ACAP can resolve the complaint informally as provided herein or it can refer the matter to the appropriate branch office of The Florida Bar’s Lawyer Regulation Department for further action.

1.5. Local Professionalism Panel: An entity independent of The Florida Bar which is established at the local level for the purpose of resolving complaints of alleged unprofessional conduct by attorneys practicing in that circuit.

1.6. Practice and Professionalism Enhancement Programs: The various programs of The Florida Bar which exist for use in diversion cases or as a condition of discipline. These programs include Ethics School, Professionalism Workshops, Law Office Management Assistance Service (LOMAS), Stress Management Workshop, Florida Lawyers Assistance, Inc., and the Trust Accounting Workshop.

2. Initiating Professionalism Complaints

2.1. Commencement of the Process: Any person may initiate a professionalism complaint against a member of The Florida Bar through a Local Professionalism Panel when available and appropriate, or through ACAP. Complaints received by a Local Professionalism Panel may be referred to ACAP at any time depending upon the nature and severity of the complaint.

3. Processing Professionalism Complaints Through ACAP

3.1. Complaints initiated through ACAP can be an informal request for assistance either through a telephone call or by a written request. The complaint can also be a formal complaint either under oath as required by Rule 3-7.3(c) of The Rules Regulating The Florida Bar or as an un-sworn judicial referral as outlined in Standing Board Policy 15.91 of The Florida Bar. The Bar may also lodge a complaint on its own initiative.

3.2.Initial Screening

3.2.1. Upon receipt of a complaint, ACAP will create a record of the request by obtaining the contact information for both the Complainant and the Respondent. The information will then be forwarded to an ACAP Attorney for Initial Screening.
3.2.2. If the ACAP Attorney determines that the concerns raised in the complaint could be resolved informally, the ACAP Attorney will contact the Respondent to discuss the professionalism issues and provide remedial guidance as necessary, or refer the complaint to a Local Professionalism Panel. If the matter cannot be resolved informally, the ACAP Attorney will contact the Complainant and explain any further available options.
3.2.3. Upon receipt of a complaint that cannot be resolved informally, the ACAP Attorney will determine whether the allegations, if proven, would constitute a violation of The Rules of Professional Conduct relating to professionalism. If the ACAP Attorney determines ■ the facts as alleged would constitute a violation, an inquiry will be opened and the ACAP Attorney will investigate the allegations. If the ACAP Attorney determines the facts as alleged would not constitute a violation, the ACAP Attorney will advise the Complainant and the Respondent of the decision not to pursue an inquiry and will provide the reasons for doing so.
3.2.4. If the ACAP Attorney determines after investigation that the facts show the Respondent did not violate The Rules of Professional Conduct, the ACAP Attorney may dismiss the case after taking informal action if necessary, such as providing remedial guidance. The Complainant and Respondent will be notified of the dismissal and will be provided the reasons for doing so.
3.2.5. If the ACAP Attorney determines after investigation that a complaint warrants further action for a possible violation of one or more of The Rules of Professional Conduct, the ACAP Attorney will forward the matter to the appropriate branch office of The Florida Bar’s Lawyer Regulation Department for further consideration.

3.3. Review at the Branch Level: Upon a referral to the branch office, branch Bar counsel may dismiss the case after further review and/or investigation, recommend Diversion to a Practice and Professionalism Enhancement Program in accordance with Rule 3 — 5.3(d) of The Rules Regulating The Florida Bar, or refer to a Grievance Committee for further investigation.

3.4. Review by the Grievance Committee: Upon referral and conclusion of the investigation, the Grievance Committee will make one of the following findings:

A. No probable cause;
B. No probable cause and include a letter of advice to the Respondent;
C. Recommendation of Diversion to one of the Practice and Professionalism Enhancement Programs;
D. Recommendation of Admonishment for Minor Misconduct; or
E.Probable cause. Probable cause under Rule 3-2.1 of The Rules Regulating The Florida Bar is a finding by an authorized agency that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action.

3.5.Confidentiality: The confidentiality of disciplinary investigations and proceedings is outlined in Rule 3-7.1 of The Rules Regulating the Florida Bar. Any record of informal attempts to resolve a dispute as outlined in paragraph 3.2.2. would also be subject to the provisions of Rule 3-7.1 except that notes of any telephonic communication between the ACAP Attorney and the Complainant, the Respondent, or any third party would be considered the work product of The Florida Bar and would remain confidential and not become part of the public record.