author: MOORE, Judge.

text:
    Morris A. MANLEY v. Steven VAUGHN, administrator of the estate of Molly Cheatwood, deceased
    2150855
    Court of Civil Appeals of Alabama.
    February 10, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160422

      Morris A. Manley, pro se.
    F. Michael Haney of Inzer, Haney McWhorter & Haney, LLC, Gadsden, for appellee.
   MOORE, Judge.

Morris A. Manley appeals from a judgment of the Etowah Circuit Court approving a settlement agreement stemming from a claim filed by his father, Merrell Manley, contesting the will of Molly Cheat-wood, Merrell’s sister. We dismiss the appeal.

Cheatwood died on ■ October 12, 2014, and her will was submitted for probate in the Etowah Probate Court on November 20, 2014. Merrell filed a will contest in the probate court on January 5, 2015.‘On April 21, 2015, the probate court appointed Steven Vaughn as the administrator of Cheat-wood’s estate. On April 24, 2015, Merrell filed in the circuit court a petition seeking, among other things, to remove the administration of Cheatwood’s estate to the circuit court and the removal of Vaughn as the administrator of Cheatwood’s estate; he also requested temporary and permanent injunctions restraining Vaughn from removing timber from, or otherwise affecting the appearance of, the real property held by Cheatwood’s estate. The various claims asserted by Merrell and his successor are hereinafter referred to as the “contest claims.” On March 15, 2016, Merrell’s attorney, Thomas A. King, filed a suggestion of death, informing the circuit court that Merrell had died on October 15, 2015. On that same date, King filed a motion seeking to substitute Rodney Ward, as the administrator of Merrell’s estate, as the plaintiff; the circuit court granted that motion. The circuit court entered an order on June 10, 2016, indicating that King had reported to the circuit court that a settlement had been effected such that Merrell’s estate and the surviving children of Emory Manley, the deceased brother of Merrell and Cheatwood, would receive $281,233.33 in settlement of the contest. The circuit court noted that it had heard the testimony of Merrell’s children, Mona Manley and Morris Manley, concerning their objections to the settlement. The circuit court approved the settlement, noting that, upon payment of the agreed-upón amount, the contest claims would be dismissed with prejudice and the administration of Cheat-wood’s éstate would be demanded to the probate court. On Juné 15, 2016, King, as attorney for Merrell’s estate, and Michael Haney, the attorney for Cheatwood’s esate,1 stipulated to the circuit court that the contest claims had been settled and that the ordered moneys had been disbursed, and they asserted that the contest claims should be dismissed with prejudice and that the administration of Cheatwood’s estate should be remanded to the probáté court. On that same daté, the circuit court entered an order dismissing; th’e contest claims with prejudice and remanding the administration of Cheatwood’s estate to the probate court. Morris Manley filed a notice of appeal to the Alabama Supreme Court on July 21, 2016; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On August 10, 2016, Vaughn filed in this court a motion to dismiss the appeal, asserting that Morris had not been a party to the circuit-court action. Morris has not responded to that motion. In his brief on appeal, Morris admits that he was not represented by an attorney at the hearing before the circuit court, but, he says, he was allowed to testify."Although Morris is an heir to Merrell’s estate and testified at the hearing in that capacity, he was never made a party to the action and, thus, is not a party to the judgment from which he has purported to appeal.

In McCollum v. Keating, 5. So.3d 1283, 1284 (Ala. Civ. App. 2008), the administra-trix of the estate of a decedent who had been involved in a motor-vehicle accident sued several defendants, alleging various claims stemming from the decedent’s death that resulted from that accident. The trial court entered a protective order prohibiting “any other person or party” from disposing of, selling, repairing, or otherwise materially affecting the decedent’s vehicle, which had been involved in the accident. Id. Following a request by one of the parties, the trial court amended its protective order to expressly make it applicable to the wrecker service that was in possession of the decedent’s vehicle; the wrecker service was not a party to the action. Id. Later, the wrecker service filed a statement in the .trial court claiming a lien against any judgments or settlements entered for the charges it had incurred as a result of storing the vehicle, but it did not seek to intervene as a party to the action. Id. at 1284-85. The trial court ordered the wrecker service to allow the parties to inspect the vehicle; the wrecker service filed a motion requesting that the accrued storage fees for the vehicle be taxed as costs or taxed against the defendants, and the trial court denied that motion. Id. at 1285. Following a joint filing by the parties; the case was dismissed; however, after the entry of the judgment, the wrecker service filed motions seeking relief from the judgment and objecting to the dismissal of the case. Id. The wrecker service appealed the dismissal to this court. Id at 1286. In determining that the wrecker service had not been added as a party to the judgment below and, as a result, did not have standing to appeal, this court stated, in pertinent part:

“ ‘ “Unless a person is a party to a judgment, he [cannot] appeal from that judgment. That fundamental principle is one of the oldest in Alabama jurisprudence.” Daughtry v. Mobile County Sheriffs Dep’t, 536 So.2d 953, 954 (Ala. 1988). “One must have been a party to the judgment below in order to have standing to appeal any issue arising out of that judgment.” Mars Hill Baptist Church of Anniston v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala. 1999) (emphasis added [in Bosc-hert). See also Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala. 1993).
“ ‘Boschert has never been a defendant, a representative, or a member of the plaintiff class in the Naef case. It is not an intervenor. Consequently, the notice of appeal filed by Boschert failed to invoke the appellate jurisdiction of this Court. For these reasons, the appeal must be dismissed.’
“[Boschert Merrifield Consultants, Inc. v. Masonite Corp.,] 897 So.2d [1048,] 1051-52 [ (Ala. 2004)].
“Similarly, [the wrecker service], although the target of discovery and evidence-preservation orders in this case, never took the steps permitted by the Alabama Rules of Civil Procedure (see Rule 24, Ala. R. Civ. P.) to make [itself] a party to the judgment from which [it] has purported to appeal. [The wrecker service] thus lacks standing to appeal from the judgment; therefore, we lack jurisdiction over the appeal and dismiss it ex mero motu. See Rule 2(a)(1), Ala. R. App. P.”

5 So.3d at 1287.

In the present case, like in McCollum, Morris was not made a party to the action before the circuit court at any time. His interest as an heir of Merrell’s estate, which was a party to the judgment, was protected and represented by Ward, as administrator of Merrell’s estate. See Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 659, 180 So.2d 255, 257 (1965). Because Morris was not a party to the circuit court’s judgment, he has no standing to appeal from that judgment. Accordingly, the motion to dismiss filed by Vaughn is due to be granted. We therefore dismiss Morris’s appeal.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . Although there is no order in the record indicating that the administration of Cheat-wood’s estate was removed to the circuit ■court; it is clear the administration of Gheat-wood’s estate was transferred to the circuit court.


source: Caselaw Access Project

license: Public Domain

text:
    Girish MODI v. Jalisa JOHNSON and Roosevelt Williams
    2160072
    Court of Civil Appeals of Alabama.
    Feb. 17, 2017
    Rehearing Denied April 14, 2017

      Girish Modi, pro se.
   MOORE, Judge.

Girish Modi appeals from ,a judgment entered by the Montgomery Circuit Court (“the circuit court”) in favor of Jalisa Johnson in an appeal from the Montgomery District Court (“the district court”) in a garnishment action. In this appeal, Modi also challenges that same judgment to the extent the circuit court dismissed that part of the appeal in which Modi had attempted to appeal from the underlying district-court judgment from which the garnishment action arose.

Procedural' History

On July 20, 2015, Modi filed a complaint in the district court against Johnson and Roosevelt Williams requesting damages for unpaid rent, for certain items he claimed , had been stolen, and for various other fees and charges. On August 17, 2015, Johnson, and Williams answered the complaint and also counterclaimed.

After a hearing, the district court entered a judgment in favor of Modi in the amount of $6,208.21; the counterclaim was dismissed. On November 12,2015, Johnson and Williams filed separate postjudgment motions. On November 24, 2015, the district court entered a judgment reducing the judgment in favor of Modi to $1,000. On December 2, 2015, Modi moved to amend the judgment; that motion was denied the same day. No party appealed from the judgment at that time.

On January 29, 2016, Modi commenced in the district court a garnishment action against Acceptance Now, Johnson’s employer. The district court entered an order denying Modi’s request for a garnishment on May 2, 2016. On May 9,2016, Modi filed a motion to vacate that order. On July 11, 2016, the district court purported to enter a default judgment against Acceptance Now in the amount of $550. On July 13, 2016, Modi filed a motion to amend the default judgment, seeking to garnish the full $1,000 judgment amount. That motion was denied on July 15, 2016. Modi filed a second motion to amend on July 18, 2016, which was denied' that same day. Modi appealed to the circuit court on July 26, 2016, challenging both the amount of the garnishment judgment and the amount of the underlying November 24, 2015, judgment.

After a hearing, the circuit court entered a judgment on October 19, 2016, in favor of Johnson on the issues concerning the garnishment; it dismissed the appeal as untimely to the extent that' Modi was attempting to appeal from the underlying district-court judgment from which the' garnishment action' arose. That same day, Modi filed a postjudgment motion. Modi filed his notice of appeal on October 21, 2016. Modi’s postjudgment motion was denied on October 25, 2016.

Discussion

We initially address the issue of jurisdiction presented in this appeal. ■ ■

“ ‘[JJurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero mota.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). ‘[T]he timeliness of an appeal affects this Court’s jurisdiction to consider the appeal.’ Moultrie v. Wall, 143 So.3d 128, 135 (Ala. 2013).
“Section 12-12-70(a), Ala. Code 1975, provides, in pertinent part, that ‘[a]ny party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court, within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later.’ ”

Croskey v. Crawford, 177 So.3d 468, 469-70 (Ala. Civ.App. 2014).

“Under Alabama law, among other motions, a postjudgment motion to alter, amend, or vacate under Rule 59, Ala. R. Civ. P., may not remain pending in a district court for more than 14 days without the express consent of all the parties, unless the appellate court to which an appeal of the judgment would lie extends the deadline or, pursuant to a 2008 amendment to Rule 59.1(dc); the district court enters an order extending the period up to an additional 14 days ‘for good cause shown.’ Rules 59.1 and 59.1(dc), Ala. R. Civ. P.” .

McCaskill v. McCaskill, 111 So.3d 736, 737 (Ala. Civ. App. 2012).

In the present case, the district court entered an order denying Modi’s request for a garnishment on May 2, 2016. On May 9, 2016, Modi filed a motion to vacate that order. The district court set a hearing on that motion but failed to rule on that motion or to extend the time for ruling on that motion within 14 days. Therefore, the motion to vacate was denied on May 23, 2016. See McCaskill, supra. Modi had 14 days from May 23 to appeal to the circuit court; however, he failed to appeal within that 14-day period. Although the district court purported to make further rulings, those rulings were outside the 14-day, period and, therefore, were nullities. See, e.g., Moragne v. Moragne, 888 So.2d 1280, 1282 (Ala. Civ. App. 2004).

Because Modi did not timely file an appeal to the circuit court, the circuit court committed no error insofar as it dismissed the part of the appeal relating to the November 24, 2015, judgment as untimely filed. Therefore, the circuit court’s judgment is due to be affirmed in part. To the extent that the circuit court ruled on the merits in favor of Johnson and Williams, the circuit court’s judgment is void, and we therefore dismiss this appeal in part. See Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ. App. 2009) (“A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008))). The district court’s May 2, 2016, order denying Modi’s request for a garnishment is in effect, and all subsequent rulings made by the district court were nullities. We therefore dismiss the circuit court’s judgment in part, albeit with instructions to the circuit court to instruct the district court to vacate all orders it entered after May 2, 2016. Moragne, 888 So.2d at 1282; Colburn, 14 So.3d at 179.

JUDGMENT AFFIRMED IN PART; APPEAL DISMISSED IN PART WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . The notice of appeal was held in abeyance pending a ruling on Modi’s postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. (stating that a notice of appeal is held in abeyance pending the disposition of a postjudgment motion).

      . This part of Modi’s appeal to the circuit court was untimely because Modi's appeal was filed more than 14 days after the entry of the December 2, 2015, order denying Modi’s motion to amend the November 24, 2015, judgment of the district court.


text:
    EX PARTE Bobby WARD (In re: Bobby Ward v. All South Rental Homes, Inc., and Gary Alan Smith)
    2160196
    Court of Civil Appeals of Alabama.
    March 3, 2017
    Rehearing Denied April 14, 2017
   MOORE, Judge.

On June 23, 2016, the Jefferson Circuit Court (“the trial court”) entered a judgment determining that All South Rental Homes, Inc., and Gary Alan Smith (hereinafter referred to collectively as “All South”) had a right to redeem certain real property located in Jefferson County (“the property”) that Bobby Ward had purchased from the State of Alabama, which had purchased the property at a tax sale. On that same date, All South paid Ward $4,206.07, the amount to redeem the property as established in the judgment. On July 14, 2016, Ward filed a notice of appeal to our supreme court; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). This court affirmed the judgment, see Ward v. All South Rental Homes, Inc., [Ms. 2150921, Jan. 27, 2017] — So. 3d -(Ala. Civ. App. 2017), but Ward has filed an application for rehearing, which is currently pending before this court.

On October 25, 2016, while the appeal was pending in Ward v. All South, All South moved the trial court to issue to All South a redemption deed to the property. On October 27, 2016, Ward filed a motion to stay execution of the June 23, 20Í6, judgment and requested the trial court to set the conditions for the stay. On November 7, 2016, the trial court entered an order providing, in pertinent part:

“The parties agree that on June 23, 2016, [All South] paid and [Ward] accepted, the sum of $4,206.07 which this Court ruled was the correct amount for [All South] to pay to redeem the real property at issue in this case. On July 14, 2016, [Ward] appealed the Court’s final rulings. As [All South] paid and [Ward] accepted the redemption amount before appeal - was taken, the Court holds that the status quo of this case is for [All South] to have possession of the subject property pending the resolution of [Ward’s] appeal. The Court further determines that an appropriate superse-deas bond to stay any and all further actions with respect to the subject property-including the issuance of a Clerk’s Redemption Deed—is Ten Thousand Dollars ($10,000.00). If [Ward] provides security in this amount to the Clerk of Court within the next fourteen (14) days (i.e., by Monday, November 21, 2016), all further actions with respect to the real property at issue, including the issuance of a Clerk’s Redemption Deed shall be STAYED pending resolution of [Ward’s] pending appeal. If [Ward] does not provide security in this amount by November, 21, 2016, a Clerk’s Redemption Deed may issue to [All South].”

(Capitalization in original.) Ward tendered a cashier’s check in the amount of $10,000 to the clerk of the trial court on November 16, 2016.

Subsequently, both parties filed motions regarding the effect of the posting of the security with the clerk of the trial court.On December 9, 2016, the trial court entered an order establishing that the judgment had been stayed when it entered the November 7, 2016, order regarding the posting of the security and reaffirming that All South would retain possession of the property pending appeal; On December 18, 2016, Ward filed a “motion to enforce supersedeas bond” with this' court, arguing that, upon the stay of the judgment, he was entitled to maintain possession of the property pending appeal. This court determined that the motion should be treated as a petition for a writ of mandamus and ordered the parties to file appropriate pleadings and briefs. In his mandamus petition, Ward reiterates the argument raised in his “motion to enforce supersedeas bond.”

We begin our analysis by noting that Ward did not, in fact, file a supersede-as bond, which is described in Rulp 8(a), Ala, R, App. P., as a

“bond with good and sufficient sureties, approved by the clerk of the trial court, payable to the appellee (or to the clerk or register if the trial court so directs), with condition, failing the appeal, to satisfy such judgment as- the appellate court may render.”

Ward submits, and All South does not dispute, that Ward could not locate an insurer who would issue a supersedeas bond for the amount of $10,000, so he requested that the trial court allow him to tender a cashier’s check in that amount to the trial-court clerk as security in lieu of executing a supersedeas bond, and the trial court granted that request. See Ex parte Turner, 840 So.2d 132, 134-35- (Ala. 2002) (holding that respondent’s “failure to respond to the allegations in [the] petition for a.writ of mandamus compels this Court to consider the averments of fact in [the] petition as true”). Despite these unusual circumstances, the parties and the trial court proceeded under the theory that Ward, had executed a supersedeas bond, so we will do. the same. See Chamblee v. Duncan, 188 So.3d 6.82, 688 (Ala. Civ. App. 2015). (holding that appellate court would review case on .legal, theory selected by parties in trial-court proceedings, even if that theory was erroneous).

A stay of a judgment becomes effective “when the supersedeas bond is approved by the court.” Rule 62(d), Ala. R. Civ. P. The parties agree that the trial court approved the. supersedeas bond on November-7, 2016, at which point the judgment was stayed. “The stay granted upon the posting of a supersedeas bond acts in favor of the appellant and deprives the appellee -of the immediate benefits of his judgment.” Baker v. Bennett, 660 So.2d 980, 982 (Ala. 1995). Assuming, without deciding, that the judgment authorized All South to take possession of the property, the stay immediately deprived‘All South of that benefit of the judgment. The stay effectively returned the parties to the status quo existing before the entry of the judgment in which Ward, not All South, enjoyed the right of possession of the property.

We conclude that the trial court erred in determining that the stay of the judgment allowed All South to possess the property pending appeal. Accordingly, we grant Ward’s petition and issue a writ of mandamus directing the trial court to vacate any orders inconsistent with this opinion and to enter an order allowing Ward to maintain possession of the property pending appeal. See generally Ex parte Lyon Fin. Servs., Inc., 775 So.2d 181, 184 (Ala. 2000) (holding that mandamus can be used to correct an unauthorized stay issued by trial court).

PETITION GRANTED; WRIT ISSUED.

Thompson, P. J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . Section 40-10-83, Ala, Code 1975, provides, in pertinent part:
      “Upon [the] determination [of the redemption amount] the court shall enter judgment for the amount so ascertained in favor of the plaintiff against the defendant, and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the defendant for the land, and all title and interest in the land shall by such judgment be divested out of the owner of the tax deed.”
      In this.case, the trial court entered a judgment for the amount due to redeem the property, but the trial court did not enter a separate judgment in favor of All South for the land as required by § 40-10-83. The parties and the trial court nevertheless have proceeded under the theory, that the judgment did give All South the right to possession of the property. See Chamblee, supra.,


author: BURKE, Judge.

text:
    Geranda Marcine HARRIS v. STATE of Alabama
    CR-14-1461
    Court of Criminal Appeals of Alabama.
    June 17, 2016.
    Rehearing Denied August 5, 20Í6
    Kristi Waldron Dugan, Mobile, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   BURKE, Judge.

Geranda Marcine Harris was convicted of third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975, and was sentenced to 10 years’ imprisonment; that sentence was split and Harris was ordered to serve three years’ incarceration followed by three years’ probation. Harris was also ordered to pay restitution in the amount of $889.63. This appeal followed.

The evidence at trial revealed that,, at approximately 1:00 a.m. on May 28, 2013, an individual broke into a liquor store and stole 12 bottles of liquor. Testimony revealed that the person gained entry into the store by breaking out the glass on the front door. Video-surveiUance'footage was shown to the jury as well as still photographs taken from the video.

Harris’s main argument- at trial was that the individual depicted in the video was not him. During opening statements, defense counsel asked Harris to stand up and remove his coat so that the jury could look at him. (R. 57.) Defense counsel asked the jury to pay attention to Harris’s physique and to compare it with the physique of the individual in the video. During Harris’s closing argument, defense counsel again referred to Harris and stated:

“[Yjou’ve seen the video. My client is a larger man than the individual who broke into the ABC [liquor] Store that morning in the shoulders, in the waist.
“I had him stand up and remove his jacket so that the jacket didn’t appear to make him larger than he actually is. We’re not trying to hide anything.
“Wall had an opportunity to view him. You’ve had an opportunity to see him, perhaps in the hallway walking around, to get a good look. He’s a larger man than the individual that is in this video.
“Additionally, when you look at the face of the individual who is in the video and in the still shots, this man right here appears much, much older in the face than my client does, even today, more than two years after this alleged incident took place.”

(R. 115-16.)

After the jury began deliberations, it sent a note to the judge asking: “Can we take a closer look at the defendant and/or use picture, hold it up in hand while doing so?” (R. 142.) Over Harris’s objection, the trial court allowed the jury to return to the courtroom and instructed Harris to stand in front of them for “a number of seconds.” (R. 144.)

On appeal, Harris argues that the trial court’s acquiescence to the jury’s request was equivalent to reopening the case after it had been submitted to the jury. Harris cites several cases in which Alabama courts have found similar actions to constitute reversible error.

In Caver v. State, 52 So.3d 570, 573 (Ala.Crim.App.2010), this Court noted:

“Section 15-14-4, Code of Alabama 1975, gives a trial court permission to allow the introduction of additional evidence ‘at any time before the conclusion of argument. ... ’ § 15-14-4, Ala.Code 1975 (emphasis added). Further, ‘[b]e-fore the jury retires to begin deliberation of the case, the court, upon a showing of good cause, may allow the case to be reopened.’ Rule 19.1(h), Ala. R.Crim. P. (emphasis added). See Charles W. Gamble, McEIroy’s Alabama Evidence § 436.01(2)(5th ed.1996). ‘Although it is within the discretion of the trial court to reopen the case after the close of evidence, it is clear that cases construing § 15-14-4 have consistently held it to be error to do so after submission of the case to the jury.’ Harris v. State, 371 So.2d 979, 983 (Ala.Crim.App.), cert. denied, 371 So.2d 984 (Ala.1979), and cases cited therein. See also Reed v. State, 475 So.2d 641 (Ala.Crim.App.l985)(hold-ing that the trial court improperly allowed the jury to have three additional pages of a report after only one page of the report had been referred to during the trial). Cf. Jolly v. State, 405 So.2d 76 (Ala.Crim.App.1981)(finding no error where the trial judge allowed in a photographic negatives, which the jury requested to see after it had begun its deliberations, which depicted a tag appearing on the automobile used by the robbers because, during the course of the trial, there had been oral testimony about the negatives).”

In Caver, the jury, after it began deliberations, asked to see the defendant’s arms, which had not been visible during trial. In reversing Caver’s conviction, this Court held that “[t]he display of [Caver’s] arms constitutes non-testimonial physical evidence the jury had not seen during the trial, and the presentation of this new evidence after the court submitted the case to the jury was improper.” Id. at 574. See also Ex parte Batteaste, 449 So.2d 798 (Ala.1984)(holding that it was reversible

error to allow the jury, after it had begun deliberating, to view the defendant’s face to see if it had a scar on it).

The State argues that Harris’s case is distinguishable from cases like Caver and Batteaste, because, it says, the jury was not given any information it did not already have when it was allowed to look at Harris during deliberations. The State points to the fact that defense counsel had Harris stand up and remove his jacket during opening statements as well as to counsel’s continued references to Harris’s appearance during closing arguments. According to the State, this put Harris’s physical appearance at issue. Therefore, the State argues, the circumstances of Harris’s case are more similar to cases in which trial courts have allowed a jury to review evidence that was already before it.

That was the position taken in Washington v. United States, 881 A.2d 575, 582 (D.C.2005), in which the Court of Appeals held that a jury’s request to view the defendant up close did not constitute “ ‘new evidence’ ” in violation of the general principle “that a jury should not view physical evidence of the defendant during its deliberations which it did not observe at trial.” In Batteaste v. State, 449 So.2d 797 (Ala.Crim.App.1983), this Court reached a similar conclusion. In Batteaste, the trial court allowed the jury, after the jury had retired to deliberate, to look at the defendant’s face to see if it had a scar on it. This Court held:

“[T]he trial court’s acquiescence to the jury’s request did not amount to a reopening of the evidence in the case. The appellant was present throughout the trial. It is impossible to suppose that during that time his face was never visible to any members of the jury. The opportunity given to the members of the jury to see the appellant’s face again did not convey any information to them that was not available during trial. Jolly v. State, 405 So.2d 76 (Ala.Crim.App.1981); Merriweather v. State, 364 So.2d
374 (Ala.Cr.App.) cert, denied, Ex parte .Merriweather, 364 So.2d 377 (Ala.1978).”

Batteaste v. State, 449 So.2d at 798.

However, this Court’s judgment in Batteaste v. State was subsequently reversed by the Alabama Supreme Court in Ex parte Batteaste, 449 So.2d at 799 (Ala. 1984), which held:

“The Court of Criminal Appeals, while acknowledging that it is error to reopen a case and allow presentation of evidence after a case has been submitted to the jury, nevertheless found that granting the jury’s request to view the appellant’s scar did not amount to a reopening of the evidence because the appellant had beén present throughout the trial and thus the court’s action did not convey any information to the jurors not available during the trial. See Jolly v. State, 405 So.2d 76 (Ala.Cr.App.1981).
. “We disagree with the court’s rationale, because where, as here, the evidence relates to the person of the accused, the principle of law ‘in Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), is controlling. In Harnage, the Court ruled that a jury request to view the hands of the defendant, who was charged with murder by strangulation, came too late because the case had already been presented to the jury and any member of the jury had had the opportunity to observe the defendant’s hands during the trial, particularly’while' the defendant was testifying in his own behalf. 290 Ala. at 144, 274 So.2d at 354.”

In Jolly v. State, 405 So.2d 76 (Ala.Crim. App.1981), which was cited in Batteaste v. State and' Ex parte Batteaste, the jury, during its deliberations, requested to see a photograph that had not been admitted into evidence. This Court held that, although it was technically an error for the trial court to allow the jury to see the photograph, “technical errors, not affecting the substantial rights of the defendant, must be disregarded and cannot form the basis pn which to reverse a conviction.” 405 So.2d at 77. We noted that, the photograph “conveyed no information that had not been emphatically conveyed to the jury during the trial.” Id. See also Merriweather v. State, 364 So.2d 374 (Ala.Crim.App.1978)(holding that a drawing that- was mistakenly allowed to go to the jury “conveyed no information to the jury while in'the jury room that had not been emphatically conveyed to the jury during the trial of the case”).

Although the State is correct in its assertion that the jury’s, final examination of Harris gave it no more information than it already had, Ex parte Batteaste stands for the proposition that the rule discussed in Jolly and Merriweather, i.e., that it is not reversible error to allow evidence that has not been admitted to go to the jury if that evidence provides- no new information, is different when that evidence relates to the person of the defendant. Accordingly, the trial court erred by overruling Harris’s objection to the jury’s request to look at him after it had begun deliberations.

..Moreover, we cannot say that this error was harmless. There were no eyewitnesses to. the burglary, nor did police discover any fruits of the crime in Harris’s possession. Additionally, there was no physical evidence linking Harris to the crime. The State’s entire case centered on whether the jury believed that the individual depicted in the surveillance footage was Harris.

For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded with instructions that Harris be.granted a. new trial.

REVERSED AND REMANDED...

WINDOM, P.J., and WELCH and JOINER, JJ., concur.

KELLUM, J., concurs in the result.


author: MAIN, Justice.

text:
    Ex parte State of Alabama (In re: Geranda Marcine HARRIS v. STATE of Alabama)
    1151182
    Supreme Court of Alabama.
    December 16, 2016
    Rehearing Denied February 17, 2017

      Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for petitioner.
    Kristy Waldron Dugan, Mobile, for respondent.
   MAIN, Justice.

Geranda Marcine Harris was convicted of third-degree burglary, a violation of § 13A-7-7, Ala. Code 1975, and was sentenced to 10 years’ imprisonment; that sentence was split and Harris was ordered to serve 3 years’ incarceration followed by 3 years’ probation. Harris was also ordered to pay restitution in the amount of $889.63. Harris appealed his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals reversed the judgment of the Mobile Circuit Court and remanded the case with instructions that Harris be granted a new trial. See Harris v. State, 235 So.3d 255 (Ala. Crim. App. 2016). The State petitioned for certiorari review, which this Court granted; we now reverse and remand.

Facts and Procedural History

The Court of Criminal Appeals stated the relevant facts, as follows:

“The evidence at trial revealed that, at approximately 1:00 a.m. on May. 28, 2013, an individual broke into a liquor store and stole 12 bottles of liquor. Testimony revealed that the person gained entry into the store by breaking out the glass on the front door. Video-surveillance footage was shown to the jury as well as still photographs taken from the video.
“Harris’s main'argument at trial was that the individual depicted in the video was not him. During opening- statements, defense counsel asked Harris to stand up and remove his coat so that the jury could look at him. ... Defense counsel asked the jury to pay attention to Harris’s physique and. to compare it with the physique of the individual in the video. During Harris’s closing argument, defense counsel again referred to Harris and stated:
“ ‘[Y]ou’ve seen the video. My client is a larger man than the individual who broke into the ABC [liquor] Store that morning in thé shoulders, in the waist;
“T had him stand Up and remove his jacket so that the jacket didn’t appear to make him larger than he actually is. We’re not trying to hide anything.
“ ‘Y’all hacl an opportunity to view him. You’ve had an opportunity to see him, perhaps in the hallway walking around, to get a good look. He’s a larger man than the individual that is in this video.
“ ‘Additionally, when you look at the face of the individual who is in the video and in the. still shots, this man right here appears much, much, older in the face than my client does, even today, more than two years after this alleged incident took place.’
“After the jury began deliberations, it sent a note to the judge asking: ‘Can we take a closer look at the defendant and/or use picture, hold it up in hand while doing so?’ ... Over Harris’s objection, the trial court allowed the jury to return to the courtroom and instructed Harris to stand in front of them for ‘a number of seconds.’ ...”

Harris, 235 So.3d at 255-56.

Harris’s specific objection at trial was as follows:

“[I]t seems to be the equivalent of almost treating my client as though he was an exhibit to be taken back in the room. He was—
“The jury was given an opportunity both during open and during the closing to—they were instructed by myself to take a good look at him for that very purpose.
“I think that it serves the court best to have them, as we instruct them, to rely upon their memory which includes not just the testimony from the stand but their physical observations of my client for the duration of the trial.
“They’ve had now several hours since we began this to look at him after having first been instructed to pay attention to things such as his hairline, his physical attributes, his facial features in comparison to what they were going to see on the video. If they failed to do so, then that is, in my opinion, at least on the jury.
“Collectively, between the 12 of them, they can discuss what they recall of his facial features and body physique and amongst themselves and them collective memory can make a decision, in my opinion, without having seen him for any additional amount of time.”

Discussion

On appeal, Harris argued that the trial court’s acquiescence to the jury’s request was equivalent to reopening the case after it had been submitted to the jury. In reversing the trial court’s judgment, the Court of Criminal Appeals stated:

“In Caver v. State, 52 So.3d 570, 573 (Ala. Crim. App. 2010), this Court noted:

“ ‘Section 15-14-4, Code of Alabama 1975, gives a trial court permission to allow the introduction of additional evidence “at any time before the conclusion of argument ,... ” § 15-14-4, Ala. Code 1975 (emphasis added). Further, “[bjefore the jury retires to begin deliberation of the case, the court, upon a showing of good cause, may allow the case to be reopened.” Rule 19.1(h), Ala. R. Crim. P. (emphasis added). See Charles W. Gamble, McElroy’s Alabama Evidence § 436.01(2)(5th ed. 1996). “Although it is within the discretion of the trial court to reopen the case after the close of evidence, it is clear that cases construing § 15-14-4 have consistently held it to be error to do so after submission of the case to the jury.” Harris v. State, 371 So.2d 979, 983 (Ala. Crim. App.), cert. denied, 371 So.2d 984 (Ala. 1979), and cases cited therein. See also Reed v. State, 475 So.2d 641 (Ala. Crim. App. 1985)(hold-ing that the trial court improperly allowed the jury to have three additional pages of a report after only one page of the report had been referred to during the trial). Cf. Jolly v. State, 405 So.2d 76 (Ala. Crim. App. 1981)(fínding no error where the trial judge allowed in ... photographic negatives, which the jury requested to see after it had begun its deliberations, which depicted a tag appearing on the automobile used by the robbers because, during the course of the trial, there had been oral testimony about the negatives).’

“In Caver, the jury, after it began deliberations, asked- to see the defendant’s arms, which had not been visible during trial. In reversing Caver’s conviction, this Court held that ‘[t]he display of [Caver’s] arms constitutes non-testimonial physical evidence the jury had not seen during the trial, and the presentation of this new evidence after the court submitted the case to the jury was improper.’ Id. at 574. See also Ex parte Batteaste, 449 So.2d 798 (Ala. 1984)(holding that it was reversible error to allow the jury, after it had begun deliberating, 'to view the defendant’s face to see if it had a scar on it).

“The State argues that Harris’s case is distinguishable from cases like Caver and Batteaste, because, it says, the jury was not given any information it did not already have when it was allowed to look at Harris during deliberations. The State points to the fact that defense counsel had Harris stand up and remove his jacket during opening statements as well as to counsel’s continued references to Harris’s appearance during closing arguments. According to the State, this put Harris’s physical appearance at issue. Therefore, the State argues, the circumstances of Harris’s case are more similar to cases in which trial courts have allowed a jury to review evidence that was already before it.

“That was the position taken in Washington v. United States, 881 A.2d 575, 582 (D.C. 2005), in which the Court of Appeals held that a jury’s request to view the defendant up close did not constitute ‘ “new evidence” ’’ in violation of the general principle ‘that a jury should not view physical evidence of the defendant' during its deliberations which it did not observe at trial.’ In Batteaste v. State, 449 So.2d 797 (Ala. Crim. App. 1983), this Court reached a similar conclusion. In Bat-teaste, the trial court allowed the jury, after the jury had retired to deliberate, to look at the defendant’s face to see if it had a scar on it. This Court held:

“‘[T]he trial court’s acquiescence to the jury’s request did not amount to a reopening of the evidence in the ease. The appellant was present throughout the trial. It is impossible to suppose that during that time his face was never visible to any members of the jury. The opportunity given to the members of the jury to see the appellant’s face again did not convey any information to them that was not available during trial. Jolly v. State, 405 So.2d 76 (Ala. Crim. App. 1981); Merriweather v. State, 364 So.2d 374 (Ala. Cr. App.) cert. denied, Ex parte Merriweather, 364 So.2d 377 (Ala. 1978).’

“Batteaste v. State, 449 So.2d at 798.

“However, this Court’s judgment in Batteaste v. State was subsequently re-' versed by the -Alabama Supreme Court in Ex parte Batteaste, 449 So.2d at 799 (Ala. 1984), which held:

“‘The Court of Criminal Appeals, while acknowledging that it is error to reopen a case and allow presentation of evidence after a case has been submitted to the jury, nevertheless found that granting- the jury’s request to view the appellant’s scar did not amount to a reopening of the evidence .because the appellant had been present throughout the trial and thus the court’s action did not convey any information to the jurors not available during the trial. See Jolly v. State, 405 So.2d 76 (Ala. Cr. App.1981).
“ ‘We disagree with the court’s rationale, because where, as here, the evidence relates to the person of the accused, the principle of law in Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), is controlling. In Harnage, the Court ruled that a jury request to view the hands of the defendant, who was charged with murder by strangulation, came too late because the case •had already been presented to the jury and any member of the jury had had the opportunity to observe the defendant’s hands during . the trial, particularly while the defendant was testifying in his own b'ehalf. 290 Ala. at 144, 274 So.2d at 354.

“In Jolly v. State, 405 So.2d 76 (Ala. Crim. App. 1981), which was cited in Batteaste v. State and Ex parte Bat-teaste, the jury, during its deliberations, requested to see a photograph that had not been admitted into - evidence. This Court held that, although it was technically an error for the trial court to allow the jury to see the photograph, ‘technical errors, not affecting the substantial rights of the defendant, must be disregarded and cannot form the basis ■ on which to reverse a conviction.’ 405 So.2d at 77. We noted that the photograph ‘conveyed no information- that had not been emphatically conveyed to the jury during the trial.’ Id. See also Merriweather v. State, 364 So.2d 374 (Ala. Crim. App. 1978)(holding that a drawing that was mistakenly allowed to go to the jury ‘conveyed no information to the jury while in the jury room that had not been emphatically conveyed to the jury during the trial-of the case’)..

“Although the State is correct in its assertion that the jury’s final examination of Harris gave it no. more information than it already had, Ex parte Bat-teaste stands.for the proposition that the rule discussed in Jolly and Merriweather, i.e., that it is not reversible error to allow evidence that has not been admitted to go to the jury if that evidence provides no new information, is-different when that evidence, relates to the person of the defendant. Accordingly, the trial court erred by overruling Harris’s objection to the jury’s request to look at him ..after it had begun deliberations.

“Moreover, we cannot say that this error was harmless. There were no eyewitnesses to the burglary, nor did police discover any fruits of the crime in Harris’s possession. Additionally, there was no physical evidence linking Harris to the crime. The State’s entire case centered on whether the jury believed- that the individual depicted in the surveillance footage was Harris.” '

Harris, 235 So.3d at 256-58.

Before this Court, the State contends that the facts in the present case are distinguishable from the facts in Ex parte Batteaste, 449 So.2d 798 (Ala. 1984), and that the Court of Criminal Appeals’ application of Ex parte Batteaste to the present case was erroneous. In the alternative, the State contends that this Court should overrule-Exjgarte_Batteaste “to the extent that it equates the defendant’s physical appearance at trial with testimonial evidence subject to the prohibition against compelled self-incrimination.” State’s brief, at 13..

We agree with the State that the situation in the present ease is materially different than the situation in Ex parte Batteaste and the situation in Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), the case upon which Ex parte Batteaste relied. As the Court of Criminal Appeals correctly noted, it is well established that it is érror to reopen a case and allow the presentation of new evidence after the case has been submitted to the jury. Caver v. State, 52 So.3d 570, 573-74 (Ala. Crim. App. 2010). ⅜ The rationale behind this rule appears to be that the parties would not have any opportunity “ ‘for cross examination or rebuttal’ ” or “ ‘for requesting additional instructions’” concerning this new evidence. Caver, 52 So.3d at 572 (quoting Perkins v. State, 253 Miss. 652, 655, 178 So.2d 694, 696 (1965)). Also, it has been held that it is not reversible error, to allow evidence that has not been presented to the jury to go -to the jury if that evidence provides no new information. As the Court of Criminal Appeals noted) -this latter- rule is the rule discussed in Jolly v. State, 405 So.2d 76 (Ala. Crim. App. 1981), and Merriweather v. State, 364 So.2d 374 (Ala. Crim. App. 1978), and referenced in Ex parte Batteaste. According to the Court of Criminal Appeals, this rule concerning evidence that has not been presented to the jury but that provides no new information “is different when that evidence relates to the person of the defendant.” Harris, 235 So.3d at 258 (citing Ex parte Batteaste). However, this rule has no application if the specific evidence has been presented to the jury, which is the case in the present situation.

In Ex parte Batteaste, the defendant was present at trial, but his appearance was never specifically presented to the jury. More specifically, the jury was never asked to observe whether the defendant had a scar on one side of his face. Thus, this Court held that the trial court erred when, after the jury had retired, the court permitted the jury to view the defendant’s face to see whether it had a scar on it. Ex parte Batteaste, 449 So.2d at 799; Batteaste v. State, 449 So.2d 797 (Ala. Crim. App. 1983).

Similarly, in Harnage, this Court stated that a juror’s request to see the hands of the defendant, who was charged with murder by strangulation, came too late when the case had already been submitted to the jury. The jurors had the opportunity to observe the defendant’s hands during the trial and while the defendant was testifying in his own behalf. However, like the situation in Ex parte Batteaste, the defendant’s appearance was never specifically presented to the jury, and, more particularly, the jury was iiever specifically asked to examine the defendant’s hands. Harnage, 290 Ala. at 144, 274 So.2d at 354.

Likewise, in Caver, the trial court required thé defendant to display his arms to the jurors after the jury had retired for deliberations. The Court of Criminal Appeals held that “(t]he display of his arms constitutes non-testimonial ■ physical evidence the jury had not seen during the trial, and the presentation of this new evidence after the court submitted the case to the jury was improper.” Caver, 52 So.3d at 574 (emphasis added).

In the present case, we are not presented with a situation, like those in Ex parte Batteaste, Harnage, and Caver, where the case was submitted to the jury without the defendant’s appearance ever being specifically presented to the jury. Instead, on more than one occasion before the jury retired, Harris’s counsel specifically asked the jury to observe Harris’s appearance. Thus, this evidence was specifically presented to the jury and was not new. evidence, and the parties had the opportunity to address this evidence before the case was submitted to the jury. Accordingly, the Court of Criminal Appeals’ application of Ex parte Batteaste—a case in which the specific evidence in question had not been presented to the jury before it retired—is misplaced. In the present case, the trial court did not reopen the case and allow the presentation of new evidence after the case had been submitted to the jury; thus, the trial court did not err. Accordingly, we reverse the Court of Criminal Appeals’ decision.

Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur.

      . Because we hold that Ex parte Batteaste is distinguishable from the present case, we need not entertain the State’s request to overrule Ex parte Batteaste "to the extent that it equates the defendant's physical appearance at trial with testimonial evidence subject to the prohibition against compelled self-incrimination.” We note that it is not clear that Ex parte Batteaste even stands for such a proposition or that the Court of Criminal Appeals’ holding was based on the prohibition against compelled self-incrimination. In any event, it is not necessary to make such a decision in the present case.

       Note from the reporter of decisions: On April 21, 2017, on remand from the Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-14-1461).


author: PER CURIAM. PARIENTE, J.,

text:
    Derrick Tyrone SMITH, Appellant, v. STATE of Florida, Appellee.
    No. SC1S-2246
    Supreme Court of Florida.
    [October 5, 2017]

      Martin J. McClain of McClain & McDer-mott, P.A., Wilton Manors, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Derrick Tyrone Smith, a prisoner under sentence of death, appeals two circuit court orders denying his successive motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain,, we affirm the circuit court’s orders denying relief.

L BACKGROUND

Smith was convicted of and sentenced to death for the March 21, 1983, first-degree murder of Jeffrey Songer, a cab driver in St. Petersburg, Florida. Smith was initially tried, convicted, and sentenced to death in 1983, but we reversed the conviction and sentence on appeal and remanded for a new trial because of the admission of improper "comments on Smith’s right to remain silent and a statement Smith made to a detective after he invoked his right to remain silent. Smith v. State, 492 So.2d 1063, 1065-67 (Fla. 1986). In 1990, Smith was again tried, convicted, and sentenced to death, and we affirmed the conviction and sentence on appeal after the retrial. Smith v. State, 641 So.2d 1319 (Fla. 1994). We also affirmed the denial of Smith’s initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Smith v. State, 931 So.2d 790 (Fla. 2006).

Smith then filed a federal habeas petition in the United States District Court for the Middle District of Florida, which was denied on August 8, 2007. Smith v. Sec’y, Dep’t of Corr., No. 8:06-cv-01330-T-17MAP, 2007 WL 2302207 (M.D. Fla. Aug. 8, 2007), affd in part, vacated in part, remanded, 572 F.3d 1327 (11th Cir. 2009). On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed in part and remanded in part for the Middle District to perform a cumulative materiality analysis of six Brady v. Maryland, 373 U:& 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims raised in Smith’s initial postconviction 'motion, as required by Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Smith v. Sec’y, Dep’t. of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009). On October 19, 2009, the Middle District, after conducting a cumulative materiality analysis, concluded that Smith was not entitled to habeas relief. Smith v. Sec’y, Dep’t of Corr., No. 8:06-cv-1330-T-17MAP, 2009 WL 3416775 (M.D. Fla. Oct. 19, 2009), vacated and remanded, No. 10-11562, 2011 WL 4810173 (11th Cir. Oct. 12, 2011).

On July 2, 2007, while his federal habeas petition was pending, Smith filed a successive rule 3.851 motion for postconviction relief, which was summarily denied by the postconviction court. On appeal in 2011, we reversed the summary denial of Smith’s successive motion and remanded the case to the circuit court for an evidentiary hearing on “Smith’s allegations that (1) letters from the Federal Bureau of Investigation regarding expert testimony on comparative bullet lead analysis [(CBLA)] offered at his retrial constituted newly discovered evidence and (2) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose information regarding trial witness Priscilla Walker.” Smith v. State, 75 So.3d 205, 206 (Fla. 2011). We also remanded the six Brady claims identified by the Eleventh Circuit for consideration under the cumulative materiality analysis required by Kyles, in light of the Eleventh Circuit’s 2009 decision, in which the Eleventh Circuit determined that the Brady claims, which were also raised in Smith’s federal habeas petition, “involve[d] favorable evidence that was actually . suppressed,” Smith, 572 F.3d at 1348. See Smith, 75 So.3d at 206. And in light of our 2011 remand, the Eleventh Circuit vacated the Middle District’s 2009 order determining that Smith was not entitled to habeas relief after a cumulative materiality analysis of the six remanded Brady claims and again remanded with instructions for the district court to hold the federal habeas proceeding in abeyance pending the completion of the state collateral proceedings and this appeal from those proceedings. Smith v. Sec’y, Dep’t of Corr., No. 10-11562, 2011 WL 4810173, at *1 (11th Cir. Oct. 12, 2011).

After this Court’s remand in 2011, the postconviction court held an evidentiary hearing on Smith’s newly discovered evidence and Brady claims and thereafter denied relief. During the pendency of the remand, on August 13, 2013, Smith filed another successive postconviction motion in the circuit court, which was summarily denied on November 18, 2013. Smith now appeals these orders denying relief.

II. ANALYSIS

Smith argues that the postconviction court erred in failing to conduct its cumulative materiality analysis of the Brady claims in accordance with Kyles, that the postconviction court erred in failing to include the State’s failure to disclose Priscilla Walker’s 1988 obstruction conviction in its cumulative materiality analysis, and that the postconviction court erred in failing to conduct its newly discovered evidence analysis in accordance with Jones v. State, 709 So.2d 512 (Fla. 1998), and Swafford v. State, 125 So.3d 760 (Fla. 2013). For the reasons explained below, we affirm the circuit court’s denial of posteon-viction relief.

A. Brady Claims

Smith argues that the postconviction court erred in failing to employ the proper standard when conducting its cumulative materiality analysis of his Brady claims and to include the State’s failure to disclose Priscilla Walker’s misdemeanor conviction for obstruction in its cumulative materiality analysis. We disagree.

The Supreme Court has held that the “suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Stridden v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). To establish prejudice, the defendant must demonstrate that the suppressed evidence is material. “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In other words, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555.

In making the materiality determination, a court must first “evaluate the tendency and force of the undisclosed evidence item by item” before separately “evaluat[ing] its cumulative effect.” See id. at 436 n.10, 115- S.Ct. 1555 (“We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion .... ”): “Considering the undisclosed evidénce cumulatively means adding up the force of it all and weighing it against the totality of the evidence that was introduced at the trial.” Smith, 572 F.3d at 1334. “A ‘reasonable probability’ of a different result exists when the government’s evidentiary sup-pressions, viewed cumulatively, undermine confidence in the guilty verdict.” Id. (citing Kyles, 514 U.S. at 434, 436 & n.10, 437, 115 S.Ct. 1555).

In addition to the six Brady claims that were remanded for consideration under the Kyles cumulative materiality analysis, the postconviction court found a seventh Brady violation. The postconviction court concluded that Priscilla Walker had a 1989 shoplifting conviction under the alias Priscilla Smith that was suppressed by the State and favorable to Smith because it was “somewhat impeaching.” Although the court did not find that the failure to disclose the shoplifting conviction was by itself sufficiently material to undermine confidence in the guilty verdict, it did consider this nondisclosure cumulatively with the other six Brady claims that were remanded for consideration in a cumulative materiality analysis. The postconviction court also considered the seven Brady claims in conjunction with the newly discovered CBLA evidence. The postconviction court concluded that “[a]fter weighing the evidence presented at trial and adjusting for the new and withheld evidence” its “confidence in the guilty verdict ha[d] not been undermined.”

As did the postconviction court, we adopt the Eleventh Circuit’s item by item analysis of the six remanded Brady claims. See Smith, 572 F.3d at 1342-46. As to the seventh Brady claim, Walker’s ,1989 shoplifting conviction, we agree with the post-conviction court’s conclusion that the fact of the conviction standing alone is not material. We also agree that because the conviction was not disclosed and could have been used to impeach Walker under section 90.610(1), Florida Statutes (1989), the postconviction court properly considered it along with the other six Brady claims and the newly discovered CBLA evidence in the cumulative materiality analysis.

The postconviction court properly considered the collective force of the new and undisclosed evidence and weighed it against the totality of the evidence that was presented at the trial. We find no error in the postconviction court’s analysis and agree that taking the collective impact of all the suppressed evidence and the newly discovered evidence and weighing it against the totality of the evidence that was introduced at the trial does not put the whole case in such a different light as to undermine confidence in the verdict.

Smith also asserts that the post-conviction court erred in failing to include the State’s failure to disclose Walker’s 1988 misdemeanor obstruction conviction in its cumulative materiality analysis. On June 27, 1988, Walker and her half brother, Henry Cummings, were arrested in connection with a single incident. Walker was charged with obstruction. Cummings, who used the name Marcus White for the arrest, was charged with disorderly con-, duct. Cummings pleaded no contest the following day and was sentenced to time served and released. Walker pleaded no contest to the obstruction charge on August 1, 1988, and the sentence imposed at that time was to “pay [a] fíne and costs in the amount of $100.00 to be taken out of [her] bond.”

On August 5, 1988, Walker was interviewed by Scott Hopkins, an investigator with the State Attorney’s Office. During that interview, Walker told Hopkins that Smith had confessed to her shortly after the murder on March 21,1983, that he had just “shot a cracker in the back.” Walker had not previously advised .law enforcement of Smith’s confession.

Smith argues that
had the defense known of the obstruction conviction, the timing of the arrest, and the involvement of Walker’s brother as the co-defendant, Mr. Smith’s trial counsel could have used the undisclosed information to suggest that in late July and early of [sic] 1988 when Walker told law enforcement of Mr. Smith’s alleged statement to her in 1983 (which she had not previously revealed), she had reason to seek to curry favor with the State
Appellant’s Initial Brief at 71, Smith v. State, - No. 13-2246 (Fla. June 26, 2014). We disagree. Because Walker’s obstruction charge had already been resolved at the time she revealed Smith’s confession, it did not serve as a reason for her to curry favor with the State and would not have served to impeach. her testimony at Smith’s trial.

Smith further argues that whjen Walker first told the State , that Smith confessed the murder to her, she could haye been attempting to curry favor for her brother’s disorderly conduct charge. Smith states:

For exactly the same reason that the Eleventh Circuit ruled that the note discussing [Melvin] Jones’s fear of a sexual abuse allegation was undisclosed impeachment, the existence of the .obstruction case against her and the disorderly conduct case against her brother could have been used as impeachment regarding her statement in late July and/or early August incriminating Mr. Smith in the homicide.

Appellant’s Initial Brief at 73, Smith v. State, No. 13-2246 (Fla. June 26,, 2014). While we recognize that the Eleventh Circuit “has held that evidence of motivation to testify, especially for key prosecution witnesses, is impeachment evidence that must be disclosed,” Smith, 572 F.3d at 1343, there is no evidence here to support Smith’s claim that on August 5,1988, when Walker advised law enforcement of Smith’s confession, she was motivated by a desire to obtain a favorable resolution of her brother’s disorderly conduct charge. Cummings testified at the evidentiary hearing that his disorderly conduct charge-was resolved the day after his arrest in June 1988. Thus, there is no support for' Smith’s claim that. Walker’s obstruction charge or Cummings’. disorderly conduct charge were evidence of Walker’s motivation to testify.

Smith also asserts in a footnote in his “Statement of the Case” that at the time Walker advised the State, of Smith’s confession “the charges against her brother remained pending” and thereafter “her brother was able to plead out to probation.” Appellant’s Initial Brief at 18 n.23, Smith v. State, No. 13-2246 (Fla. June 26, 2014). But Smith fails to point to anything in the record indicating that Cummings had charges pending against him on August 5, 1988, to which he thereafter “was able to plead out to probation.” In fact, the record seems to refute this claim; Cummings testified that after he resolved the disorderly conduct charge in June 1998, he was arrested in another criminal case and sentenced to prison.

Further, because Walker’s obstruction conviction was not a crime of dishonesty or false statement, it could not have been used to impeach her credibility at Smith’s trial under section 90.610(1), Florida Statutes, or any other provision of the Florida Evidence Code. There is simply no record support for Smith’s claim that disclosure of Walker’s obstruction conviction would have allowed him to impeach Walker at trial or provided him with evidence that he could use to “suggest” that her testimony was motivated by a desire to curry favor for her own or her brother’s pending criminal charges. Accordingly, the postconviction court did not err in omitting the State’s failure to disclose the obstruction conviction from its cumulative materiality analysis.

B. Newly Discovered Evidence Regarding CBLA

At Smith’s trial, the State presented physical evidence and expert testimony linking Smith to the murder! FBI Agent Robert Sibert testified that Smith’s jeans pocket contained lead residue consistent with bullets. The State put into evidence a bullet fragment taken from Songer’s clothing. Two other FBI agents, Asbery and Havekost, were qualified as experts and testified that the bullet fragment, according to lead compositional analysis, “matched” bullets from the ammunition box Roy Cone[, Smith’s uncle,] had purchased in 1972 and still possessed at the time of the murder. The State used this evidence to argue that it was Smith who had stolen his uncle’s gun and some bullets that had come from the box— .bullets that were used to Mil the victim. .The gun itself,was never found. ; ...

Smith, 572,F.3d at 1331-32.

Smith’s newly discovered evidence claim is -predicated on letters sent by the FBI to the State in 2008 and 2009 regarding the CBLA testimony presented at Smith’s trial. The letters indicated that in his testimony at Smith’s trial, Agent Havekost overstated the significance of the results of the CBLA. At the evidentiary hearing held on -this claim in 2013, Smith presented testimony from three expert witnesses regarding his CBLA newly discovered evidence claim; After the evidentiary hearing, the postconviction court- denied relief on this claim. •

In Jones, 709 So!2d at'521, this Court set forth the test for a conviction to be set aside on the basis of newly discovered evidence as follows:

First, in order to be considered newly discovered,' the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.”
Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.”

(Alteration in original) (citations omitted). In Swafford, 125 So.3d at 775-76, we explained the Jones analysis further as follows:

The Jones standard requires that, in considering the effect of the newly discovered evidence, we consider all of the admissible evidence that could be introduced at a new trial. In determining the impact of the newly discovered evidence, the Court must conduct a cumulative analysis of all the evidence so that there is a “total picture” of the case and “all the circumstances of the case.” As this Court held in Lightbourne[ v. State, 742 So.2d 238, 247 (Fla. 1999) ], a trial court must even consider testimony that was previously excluded as procedurally barred or presented in another proceeding in determining if there is a probability of an acquittal. ... [T]his requirement not ■ only is consistent with our precedent, but is also consistent with logic, as the Jones standard focuses on the likely result that would occur during a new trial with all admissible evidence at the new trial being relevant to that analysis.

(Citations omitted.)

Here, the postconviction court concluded that the letters from the FBI qualified as newly discovered under the first prong of the Jones test, but they did not met the second prong of the Jones test. The court explained:

At trial, the State relied on the CBLA evidence to supplement a case otherwise based on eyewitness testimony of several witnesses, whose credibility the jury had the opportunity to evaluate, as well as other circumstantial evidence. Certainly, in light of the post-trial developments regarding CBLA, Agent Have-kost’s trial testimony might well have been impeached with the new evidence regarding the reliability of CBLA, if its admission was even allowed.
While the erosion of CBLA was unknown at the time of trial and the fact that potentially inaccurate testimony became a feature of the Defendant’s 1990 trial, the Court cannot say that the absence of the CBLA evidence or compelling impeachment of the CBLA evidence would produce an acquittal on retrial.

We agree that even the complete absence of CBLA evidence at a retrial would not probably produce an acquittal. There is ample non-CBLA evidence in this case. At Smith’s 1990 retrial, Smith’s uncle, Roy Cone, testified that he owned a .38 Smith & Wesson blue steel handgun with a brown handle from 1972 to 1983. The gun went missing sometime between January and March of 1983. Smith had previously lived at Cone’s house and had last visited in February or March of 1983, around the time the gun went missing.

Carolyn Mathis, James Matthews, Priscilla Walker, Derrick Johnson, and Ernest Rouse, all testified that Smith was in possession of a gun on March 20, 1983. Rouse described the gun as a “blue/black revolver with a brown handle.” Johnson described the gun as a .38-caliber revolver with a six-inch barrel, a brown handle, and a black cylinder. Carolyn Mathis described the gun as “shiny” and said that Smith was trying to sell it for $50. Both Melvin Jones and Johnson, Smith’s codefendant, testified that they saw Smith shoot the victim. Jones testified that he saw Smith flee the scene with the gun, which he identified as a .32- or .38-caliber revolver.

The night of the murder, Smith told Regina Mathis that he was going to “hustle” some money. He also told James Matthews that he intended to get some money that night. Rouse said that Smith and Johnson were together on the night of the murder, and both Mathis sisters saw a man matching Johnson’s description with Smith that night. No one saw Johnson with a gun.

Johnson testified that he and Smith formulated several different plans for committing an armed robbery the night of the murder before eventually settling on a plan to call a cab and rob the driver. Johnson testified that Smith used the phone at the Hogley Wogley BBQ to call a cab shortly after midnight on March 21, 1983. Fingerprint evidence confirmed that Smith used the phone at the Hogley Wog-ley. Johnson said that the plan was for him to ride in the front seat of the cab and for Smith to ride in the back and to hold the gun on the driver while Johnson took his money.

David McGruder, the cook at the Hogley Wogley, testified that he saw two • men matching the descriptions of Smith and Johnson at the Hogley Wogley that night. McGruder also testified that he saw the man matching Smith’s description use the phone and enter the back seat of the cab when it arrived, although he was not certain that the man was Smith.

Walker testified that after the murder, between midnight and 1 a.m., Smith returned'to her house and told her that he had just “shot a cracker in the back” because “he act[ed] like he didn’t want to give up the money.” Matthews said that he arrived back at Walker’s house between midnight and 2 a.m. and Smith told him that he “might have shot someone.”

Marcel DeBulle, a Canadian tourist, testified that Smith robbed him in his motel room around noon on March 21, 1983, about twelve hours after the murder. De-Bulle said that Smith held a revolver with a shiny, blue, steel barrel to his head. Fingerprints on DeBulle’s briefcase, which Smith handled during the robbery, were matched to Smith.'

Because there is ample non-CBLA evidence that would be admissible at a retrial to establish Smith’s role in Songer’s murder and his identity as the shooter, we cannot say that the exclusion of the CBLA evidence at a retrial would probably produce an acquittal. This is true even when the exclusion of the CBLA evidence, is considered cumulatively with the seven Brady violations discussed herein and Smith’s various Brady, Giglio, and newly discovered evidence claims that were previously raised and found barred or otherwise denied.

III. CONCLUSION

. For the reasons stated above, we affirm the postconviction court’s orders denying Smith’s successive motions for postconviction relief.

It is so ordered.

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

PARIENTE, J., dissents with an opinion.

QUINCE, J.,’recused.

PARIENTE, J.,

dissenting.

I respectfully but strongly disagree with the majority. When a proper cumulative error analysis is performed, there can be no doubt that confidence in .the outcome is undermined .when the newly discovered evidence claim is combined with the multiple Brady claims. While no single claim may rise to the level of requiring .a new trial, the collective import of the errors—discrediting of a key piece of forensic evidence together with the State’s multiple significant failures to produce evidence favorable to the defendantcompels that Smith be granted a new trial.

Newly Discovered Evidence Claim

'As to Smith’s newly discovered evidence claim, the State’s comparative lead bullet analysis' (CBLA) expert witnesses- have notv been fully discredited, as has the underlying' science. Yet, at-trial, the State argued that the CBLA proved that the bullet that killed the victim was “materially indistinguishable ... [or] the same” as bullets from a box found at Smith’s uncle’s house, which Smith.had access to, and the chances of finding a box of bullets with the same composition as a box made ten years before “just' boggles the mind.” It does “boggle the mind” that the jury was told that there was solid science linking a particular bullet to Smith when the FBI has since reported that such science can do nothing of the sort.

We now know that the FBI has reported CBLA forensic evidence could not be used to determine, for a fact, that any bullet or bullets came from the same box of set produced by the manufacturer. The CBLA evidence was used by the State to prove that ammunition hidden with the gun in Smith’s uncle’s home was the same ammunition used to murder the victim. Indeed, the postconviction court stated, “The evidence linking .the bullet fragment taken from the victim Jeffrey Songer to the ten-year-old gun and box of bullets owned by the Defendant’s Uncle Roy Cone became a feature of the Defendant’s trial. The State emphasized the testimony of the FBI agents as being corroborative of all the other trial-testimony and evidence.”

Thus, this evidence; a key forensic pillar upon which the State based the rest of its case, is no longer reliable and weighs heavily in favor of the defendant when considered cumulatively with the Brady claims that follow.

Brady Claims

As to Smith’s seven Brady claims, and the Eleventh Circuit Court of Appeals’ concerns with this Court’s original failure to perform a cumulative error analysis, I first note that this case, dogs not involve just one Brady claim but, rather, a pattern of multiple failures on the part of the State to disclose evidence that would have been favorable to Smith. .While not one piece of undisclosed evidence, itself, meets the standard for reversal, under Brady, a cumulative error analysis of the claims, coupled with the newly discovered evidence above, compels vacating Smith’s conviction and sentence and remanding this case for a new trial.

Cumulative error analysis of all undisclosed evidence is necessary “because the sum of the parts almost invariably will be greater than any individual part.” Smith v. Sec’y, Dep’t of Corrs., 572 F.3d 1327, 1348 (11th Cir. 2009). Indeed, the postconviction court’s order denying Smith relief is replete with statements such as: “This court is troubled by the Brady violations noted by the Eleventh Circuit Court of Appeals”; Melvin Jones “was an important State witness since he was the only eyewitness who-was not involved in the robbery and murder, and both the State and the defense recognized that his credibility was important”; “The evidence that the CBLA testi-' mony has been eroded since the trial and was, in all likelihood, given Undue weight is of concern to the court”; and “The [CBLA] evidence linking the bullet fragment taken from the victim to Jeffrey Songer to the ten-year-old gun and box of bullets owned by the Defendant’s Uncle Roy Cone became a feature of the Defendant’s trial.”

A. Melvin Jones

As to Smith’s Brady claims, I start with the crucial witness, Melvin Jones, who placed Smith at the scene of the crime. As the postconviction court noted, Jones was the only witness to the crime who was not part of the robbery and murder.

■ The State failed to disclose that at the time of trial “Melvin Jones was not content with the assistance he received from the State for his testimony at the 1988 trial, and told the State that he wanted help with some pending probation violations' and a grand theft change.” Second, Jones, fearing arrest, sought additional help from the prosecutor in exchange for his testimony in Smith’s second trial, to deal with his daughter’s allegation that he sexually abused her. Third, one or more police reports indicated that Jones was initially considered as a suspect in this case in 1983. Fourth, a prosecutor’s note indicated that Jones and Johnson had met briefly in *a holding cell before the 1983 trial.

This evidence regarding Jones’ new motivation for testifying in the retrial—that he was testifying in an attempt to avoid arrest and prosecution for sexual abuse allegations—is particularly concerning. Even though the jury was able to consider Jones’ twenty-four prior convictions and that he was hiding from the police On the night of the murder, his new motivation for testifying could have been used to further attack his credibility with the jury. As the Eleventh Circuit stated:

Melvin Jones was an important State witness. He was the only eyewitness to the crime who was not involved in the robbery and murder. Both sides recognized that his credibility was important, and the. defense cross-examined him intensely about his motivation to testify at the 1983 trial and about the sentencing break he got for that testimony. At the 1990 trial, however, the defense had nothing to show that Jones had-a motive for testifying against Smith again since the charges he had faced in 1983 were long gone. The State failed to disclose that Jones did have a new reason to curry favor with the proseeution-that he feared he would be charged with a serious crime, that he was looking for help from the prosecutor if his fears were realized, and that he had talked with the prosecutor about it before he testified at the 1990 trial.

Smith, 572 F.3d at 1343.

Perhaps most disconcerting, the State failed to disclose that Jones and codefen-dant Johnson met in jail before Smith’s 1983 trial. The postconviction court found that the State failed to disclose that on July 11, 1984, “Jones approached Johnson in a holding cell, showed him a map of the crime scene, and offered to help him in connection with the case,” Id. at 1345. The State conceded this information met the first two prongs of Brady but argued that the evidence was immaterial. However, as part of its cumulative analysis, the post-conviction court found:

Both Melvin Jones’ and co-defendant’s testimony is weakened by. evidence that they met in jail before the Defendant’s 1983 trial. ... Allegedly, Derrick Johnson reported that Melvin Jones approached him and that he was so unnerved that he immediately called the guards and asked to be removed from the holding cell.

Despite knowing there was evidence of collusion before the trial between Jones and the codefendant, during closing arguments:

[T]he State emphasized that any suggestion that Derrick Johnson and Melvin Jones colluded was without merit. “Now, was there any testimony from that witness stand that could lead you to believe that Derrick Johnson and Melvin Jones got together and fabricated this testimony in order to pin the [blame on] Derrick Smith? There is no testimony from that stand that they even new[sic] each other on March 23, 1983, other than Melvin Jones saying, I knew him on the street as being New York. Did you socialize with him. No, I just knew of him as New York.”

B. David McGruder

Further, the State suppressed evidence of another key report that could have been used to impeach State witness David McGruder. McGruder’s testimony was the only testimony that placed Smith at the convenience store during the early morning hour immediately preceding the murder. Police reports and a synopsis of a police interview indicate that Smith was as much as seventy-five pounds heavier than the man McGruder described to police as using the pay phone at the convenience store before getting in the cab with the victim. Clearly this information would have provided powerful impeachment to this eyewitness’s testimony had the State produced the evidence to the defense, as is required.

C. Priscilla Walker

Finally, there is witness Priscilla Walker, who testified that shortly after the murder Smith returned to her home, told her that he had “shot a cracker in the back,” and remained in her home until 5:00 a.m. The undisclosed evidence, including several law enforcement reports, showed that Walker’s statement to the police about when Smith was at her house conflicted with statements by others about where Smith was during that time, and that Walker had a 1989 shoplifting conviction under the alias Priscilla Smith, which could have also been used to attack her credibility at trial. There was additional evidence suppressed that the police took Walker’s boyfriend, who was living with her at the time, into custody on the night of the murder, thinking he was actually Smith. This evidence could have also been used by the defendant to create reasonable doubt.

CONCLUSION

I would conclude that when analyzed cumulatively, the Brady .violations and newly discovered evidence, which cast doubt as to the veracity of the testimony of one of the State’s key-witnesses, forensic evidence that became the feature of Smith’s trial and a pillar upon which the State relied, and an additional witness who testified regarding a confession, is sufficient to undermine confidence in the outcome of the verdict of Smith’s trial. A key issue in Smith’s trial was not only whether Smith was present at the crime scene, but whether Smith or the codefendant, Johnson, who was also in the cab, shot the driver. Without the evidence related to Brady claims and the newly discovered evidence relating to the veracity of the CBLA, the State could only prove that Smith had a revolver on the night of the crime; Smith was at the convenience store at some point and left his fingerprint on the public phone; and Smith was planning to “hustle” some money that night. The only eyewitness account of what happened the night of the murder, not attacked by a Brady claim, came from the codefendant in the case, Johnson, who received a plea bargain in exchange for this testimony— hardly a reliable witness. Smith, 572 F.3d at 1330-32.

Nine years ago, the Eleventh Circuit Court of Appeals criticized this Court for failing to perform a cumulative error analysis:

There is room for debate about whether the Florida Supreme Court performed any cumulative analysis of the favorable evidence it found had been withheld from the defense. See Smith, 931 So.2d at 797-99. However, there is no room for debate about whether that court performed a cumulative materiality analysis of all six of the pieces of favorable evidence we have concluded were withheld from the defense. As we have pointed out, the Florida Supreme Court unreasonably determined that the fact Melvin Jones had talked with the prosecutor before the 1990 trial about his fears that he would be charged with the sexual abuse of his daughter was not impeachment evidence under. Brady. For that reason the court did not consider that evidence in. conducting its materiality analysis, whether that analysis was cumulative or not. It follows that we cannot defer to its decision about whether the withheld evidence was material.

Id. at 1348 (emphasis added) (citation omitted). And, although this Court remanded for an evidentiary hearing and cumulative error analysis in Smith v. State, 75 So.3d 205, 206 (Fla. 2011), and the trial court issued a comprehensive twenty-three page order detailing its analysis, this Court now fails to explain why the cumulative errors in this case do not undermine the Court’s confidence in the outcome other than agreeing with the trial court in a cursory manner. See majority op. at 269-70. However, when reviewing Brady claims, it is this Court’s obligation not to simply defer to the trial court, but to perform- a de novo review. See Geralds v. State, 111 So.3d 778, 787 (Fla. 2010) (citing Mordenti v. State, 894 So.2d 161, 169 (Fla. 2004); Way v. State, 760 So.2d 903, 913 (Fla. 2000) (deferring to the court

on questions of fact, this Court reviews de novo the application of the law and independently reviews the cumulative effect of suppressed evidence)). This Court has once again failed to perform a proper cumulative error analysis.

On the balance of equities, confidence in the outcome is certainly undermined both as to the guilt and certainly as to the penalty phase of Smith’s trial. Accordingly, justice compels this Court to vacate Smith’s conviction and sentence and remand his case for a new trial free from the taint of the flawed forensic evidence, and with a defense armed with the evidence underlying the multiple Brady claims that will considerably weaken each aspect of the State’s case. When the numerous Brady claims are considered cumulatively with the newly discovered evidence claim, justice requires that Smith be_ given a new trial.

Accordingly, I dissent.

      . The six Brady claims are:
      (1) Melvin Jones sought help from the prosecutor with the probation violation and grand theft charges against him; (2) Melvin Jones, fearing arrest, sought help from the prosecutor in regard to the sexual abuse allegations his daughter -was making against him; (3) one or more police reports indicated that Melvin Jones had initially been considered as a suspect in 1983; (4) a prosecutor’s synopsis of an, interview of David McGruder and some police reports cast doubt on McGruder’s identification of Smith; (5) a prosecutor’s note indicated that Jones and Johnson had met briefly in a holding cell before the 1983 trial; and (6) several reports showed that .Priscilla Walker’s statement, to the police, about when Smith was. at her house conflicted ^ with statements by others about where he was during that time.
      Smith v. State, 75 So.3d 205, 206 (Fla. 2011) (quoting Smith v. Sec’y, Dep’t of Corr,, 572 F,3d 1327, 1348 (11th Cir. 2009)).

      . Section 90.610(1), Florida Statutes, provides that evidence that a witness has been convicted of a crime may be used to attack the credibility of a witness, if the crime was a felony or a crime involving dishonesty or a false statement. A theft, such as shoplifting, is a crime of dishonesty. See State v. Page, 449 So.2d 813, 815 (Fla. 1984) ("It is our view that the commission of. petit theft, or any other offense falling within the scope of chapter 812, Florida Statutes (1981), necessarily involves ‘dishonesty’ so as to bring any conviction for such a crime within the scope of subsection 90.610(1).” (Footnote omitted.)).

      . Smith also claims that disclosure of the obstruction conviction would have led the defense to the discovery that Walker had a brother from whom defense counsel could have learned that Walker told her brother that she did not believe that Smith committed the murder. However, this claim does not establish a Brady violation. The fact that Walker had a brother was not suppressed by the State.-

      . Smith was convicted of the armed robbery in a separate proceeding and is serving a life sentence for it.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In my view, any other outcome would be a violation of Smith’s constitutional right to due process. See id at 87, 83 S.Ct. 1194. "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. ... A prosecution that withholds evidence on demand of an accused ... casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.” Id. at 87-88, 83 S.Ct. 1194.


text:
    Richard Harold ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. SC17-884
    Supreme Court of Florida.
    [January 26, 2018]

      James Viggiano, Jr., Capital Collateral Regional Counsel, Maria E. DeLiberato, Julissa Fontán, and Chelsea Ray Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review Richard Harold Anderson’s appeal of the circuit court’s order denying Anderson’s motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Anderson’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —:—, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Anderson’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Anderson responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Anderson’s response to the order to show cause, as well as the State’s arguments in reply, we conclude that Anderson is not entitled to relief. Anderson was sentenced to death following a jury’s recommendation for death by a vote of eleven to one. Anderson v. State, 574 So.2d 87, 90 (Fla. 1991). Anderson’s sentence of death became final in 1991. Anderson v. Florida, 502 U.S. 834, 112 S.Ct. 114, 116 L.Ed.2d 83 (1991). Thus, Hurst does not apply retroactively to Anderson’s sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Anderson’s motion.

The Court having carefully considered all arguments raised by Anderson, we caution that any rehearing' motion containing reargument will be stricken. .It is so ordered.

LABARGA, C.J., and POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

QUINCE, J., recused.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Charles William FINNEY, Appellant, v. STATE of Florida, Appellee.
    No. SC17-985
    Supreme Court of Florida.
    [January 26, 2018]
    Neal Dupree, Capital Collateral Regional Counsel, Scott Gavin, and Suzanne Myers Keffer, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review Charles William Finney’s appeal of the circuit court’s order denying Finney’s motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art, V, § 3(b)(1), Fla. Const’. '

Finney’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 604 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This .Court stayed Fin-ney’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Finney responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Finney’s response to the order to show cause, as well as the State’s arguments in reply, we conclude, that Fin-ney is. not, entitled. to relief. Finney, was sentenced to death following a jury’s recommendation for death by a vote of nine to three. Finney v. State, 660 So.2d 674, 679 (Fla. 1995). Finney’s sentence of death became final in 1996. Finney v. Florida, 516 U.S. 1096, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). Thus, Hurst does not apply retroactively to Finney’s sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Finney’s motion.

The Court having carefully considered all arguments raised by Finney, we caution that any rehearing motion containing rear-gument will be stricken. It is so ordered.

LABARGA, C.J., and POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

QUINCE, J., recused.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    William H. KELLEY, Appellant, v. STATE of Florida, Appellee.
    No. SC17-830
    Supreme Court of Florida.
    [January 26, 2018]
    Kevin J. Napper, The Law Offices of Kevin J. Napper, P.A., Tampa, Florida, and Sylvia H. Walbolt, Joseph H. Lang, Jr., Chris S. Coutroulis, E. Kelly Bittick, Jr., and Mariko Shitama Outman, Carlton Fields Jorden Burt, PA., Tampa, Florida, for Appellant

      Pamela Jo Bondi, Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review William H. Kelley’s appeal of the circuit court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Kelley’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Kelley’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Kelley responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Kelley’s response to the order to show cause, as well as the State’s arguments in reply, we conclude that Kelley is not entitled to relief. Kelley was sentenced to death following the jury’s recommendation for death by a vote of eight to three, and his sentence of death became final in 1986. See Kelley v. State, 486 So.2d 578, 580 (Fla. 1986). Thus, Hurst does not apply retroactively to Kelley’s sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Kelley’s motion.

The Court having carefully considered all arguments raised by Kelley, we caution that any rehearing motion containing rear-gument will be stricken. It is so ordered.

LABARGA, C.J., and POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in. result.

QUINCE, J., recused.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.

      . While the jury's vote recommending a sentence of death is not reflected in this Court’s opinion on direct appeal, Kelley represents in his response that the vote was eight to three. Appellant’s Br. in Resp. to Show Cause Order, Kelley v. State, No. SC 17-830 (Fla. Oct. 2, 2017), at 1, 2017 WL 4513092. The record in Kelley's direct appeal reflects that Kelley agreed to proceed with only eleven jurors when one of his jurors was excluded during the penalty phase due to an illness and a death in the family.