author: PER CURIAM. CANADY, C.J., concurring in part and dissenting in part.

text:
    Jermaine FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. SC17-2198
    Supreme Court of Florida.
    December 28, 2018
    Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune Beach, Florida; and Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying a successive motion to vacate two sentences of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Foster contends that the postconviction court erred in summarily denying the three claims raised in his motion. The first claim is one of intellectual disability, raised pursuant to the United States Supreme Court's decision in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and the second and third claims seek relief pursuant to Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decision on remand in Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). For the reasons explained below, we reverse the denial of the Hall claim and remand for an evidentiary hearing, but we affirm the denial of Hurst relief.

FACTS AND PROCEDURAL BACKGROUND

Foster was convicted of the first-degree murders of Anthony Clifton and Anthony Faiella and sentenced to death for each of the murders. Foster v. State , 679 So.2d 747, 750-51 (Fla. 1996) ( Foster I ). These convictions arose out of events that occurred at the end of a crime spree in which Foster and three other males (Gerard Booker, Leondra Henderson, and Alf Catholic) participated. Id. We have described the facts of the crimes as follows:

On the morning of November 28, 1993, Gerard Booker came to the trailer shared by [Jermaine] Foster and Leondra Henderson and stated he wanted to recoup his recent gambling losses by committing robberies. The trio proceeded to Auburndale to a place called "The Hill." Armed with a .38 caliber handgun, a .9 millimeter handgun, and an Uzi-type automatic weapon, Foster and Booker, who were joined by Alf Catholic, approached three unknown men who were selling drugs from their truck. After forcing the victims to remove their clothing and lie on the ground, Foster, Catholic, and Booker stole the victims' cash, jewelry, crack cocaine, and red Ford pickup truck. Henderson then joined the group, and they [left the scene to] conceal[ ] the stolen truck for future use.
Foster and Catholic returned to The Hill and sold some of the stolen drugs; however, the proceeds of the robbery were not sufficient to cover Booker's gambling losses. The group of Foster, Catholic, Booker, and Henderson agreed to find a local drug dealer and rob him. Then they retrieved the stolen red truck and loaded the guns [they had used in] the earlier robbery into it. When the group was unable to locate their intended victim, they drove to Osceola County to visit a girlfriend of Catholic and to find other victims to rob.
At the girlfriend's house, the group decided to accompany the girlfriend and some of her friends to the Palms Bar in St. Cloud. Catholic and Foster rode in the car driven by Catholic's girlfriend, and Henderson and Booker followed in the stolen red truck. Both drivers stopped their vehicles in route to the bar, and Catholic's girlfriend bought some liquor. Testimony revealed that Foster and Catholic drank liquor and smoked marijuana during the trip. Then the two drivers pulled over so the girlfriend could buy some gas. It was determined at that time that there were problems with the truck's fan belt, which had caused the truck to overheat and smoke during the trip. Booker stated that they would have to steal another car in which to return home that night.
Once at the Palms Bar, Foster and Catholic drank liquor, and Foster played a video game and danced. After a while, the group went outside, and Booker detailed a plan to rob the entire bar. Foster told Booker the plan was "crazy" because it was unknown what "those boys got in there." As the group headed back into the bar, Henderson noticed a black Nissan Pathfinder that was in the parking lot. Henderson determined that Anthony Faiella and Mike Rentas had come to the bar in that vehicle.... Faiella and Rentas came to the bar to meet Anthony Clifton, who was with Tammy George. Henderson pointed out Faiella, Rentas, and Clifton to Booker as possible victims to rob of their money and their vehicle. The group decided upon a plan to follow the potential victims when they left the bar in the Pathfinder. Foster told Henderson, Booker, and Catholic that if the victims did not have any money, he was going to kill them.
At around 1:30 a.m., Faiella, Rentas, Clifton, and George left the bar in the Pathfinder. The other group followed them in the red truck. Catholic was driving the truck and rammed into the back of the Pathfinder to get that vehicle to stop. When the victims stopped and got out of the Pathfinder to inspect the damage, the group in the red truck took out their weapons and demanded money from the occupants of the Pathfinder. After the victims stated that they did not have any money, the victims were forced to return to the Pathfinder. Booker drove the Pathfinder, and Henderson held the victims at gunpoint from the passenger seat. The others followed in the red truck.
On the outskirts of Kissimmee, the red truck again began experiencing mechanical problems. Catholic turned off the main highway and drove a short distance into a vacant field; Booker and the victims followed in the Pathfinder. All four of the victims were ordered out of the Pathfinder, and Tammy George was separated from the three male victims. The group again demanded money from the male victims. When these victims did not produce any, they were ordered to remove their clothes, and Foster had the men place their underwear and hands on their heads and lie face down on the ground.
At this point, Foster, from a position beside and to the rear of Anthony Clifton, shot Clifton in the back of the head, killing him. Foster then approached Rentas and fired at his head. The bullet hit him in the hand, and Rentas pretended to be dead. Foster next walked to Faiella and shot him in the head, killing him. After this, Foster approached George as if to kill her, but Booker talked him out of it.

Id.

After a penalty phase, Foster's jury unanimously recommended that Foster be sentenced to death for each of the two murders. Id. at 751. The trial court followed this recommendation, finding four statutory aggravators and one statutory mitigator. In conjunction with the statutory mitigator, the trial court found that Foster is "mildly mentally retarded," id. at 755, based on evidence that Foster had an IQ score of 75 and showed deficits in adaptive functioning. However, at that time, "mental retardation," which is now known as intellectual disability, was not a bar to execution. See Penry v. Lynaugh , 492 U.S. 302, 340, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). This Court affirmed Foster's convictions and sentences on direct appeal. Foster I , 679 So.2d at 756.

Thereafter, Foster filed his initial motion for postconviction relief and was permitted to amend and supplement it. Among the claims raised was ineffective assistance of trial counsel for failure to present a voluntary intoxication defense and, in support of that defense, to put on evidence of the enhanced effect intoxicating substances would have had on him due to his intellectual disability. Foster v. State , 929 So.2d 524, 527-28 (Fla. 2006) ( Foster II ). The postconviction court held a hearing on the motion and denied it. Id.

Between the evidentiary hearing and the date the postconviction court denied Foster's initial postconviction motion, the United States Supreme Court issued Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), imposing a bar to the execution of individuals with intellectual disability, and Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), setting forth the requirement that all facts necessary to render a person eligible for the death penalty be found by a jury. During the rehearing period for the denial of Foster's initial motion for postconviction relief, Foster raised claims under both of these decisions. The postconviction court denied the claims on the merits. Foster II , 929 So.2d at 531-32. Foster then appealed from the denial of his motion for postconviction relief, including the Atkins and Ring claims, and this Court affirmed the denial of each claim. Id. at 531-33, 537.

Foster later filed the successive postconviction motion at issue in this appeal, raising three claims. As noted at the outset, the first claim is that Foster is intellectually disabled and therefore ineligible for the death penalty under Hall v. Florida , which invalidated this state's prior position that a person who cannot produce an IQ test score of 70 or below does not qualify as intellectually disabled, 134 S.Ct. at 1990, and case law applying that decision. The second and third claims seek relief in light of Hurst v. Florida and Hurst v. State . The postconviction court summarily denied each claim, and Foster now appeals those rulings.

INTELLECTUAL DISABILITY

A claim of intellectual disability as a bar to execution requires the defendant to establish three prongs: "(1) significantly subaverage general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3) manifestation of the condition before age eighteen." Salazar v. State , 188 So.3d 799, 811 (Fla. 2016). As noted above, this state formerly required proof of an IQ score of 70 or below to establish the first prong, and failure to produce such evidence was fatal to the entire claim. Hall , 134 S.Ct. at 1990 ; see, e.g. , Cherry v. State , 959 So.2d 702, 712-13 (Fla. 2007). In Hall , the United States Supreme Court determined that this approach "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." 134 S.Ct. at 1990. We have explained the crux of the Hall decision as follows:

Prior to the decision in Hall , a Florida defendant with an IQ score above 70 could not be deemed intellectually disabled and, therefore, was barred from presenting evidence regarding the other two prongs of the test for intellectual disability: adaptive functioning deficits and manifestation before age 18.
Id. at 1994.... The Supreme Court found that the mandatory IQ cutoff of 70 violated established medical practices in two ways: first, by taking "an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence," and second, by relying on a "purportedly scientific measurement of the defendant's abilities"-his IQ score-without recognizing that the measurement itself has an inherent margin of error, resulting in a ranged score rather than a single numerical value. Id. at 1995. The Court also held that the determination of intellectual disability is a "conjunctive and interrelated assessment" .... Id. at 2001.[ ]

Walls v. State , 213 So. 3d at 345-46 (Fla. 2016).

When the original postconviction court denied Foster's Atkins claim, it considered the evidence presented in Foster's trial and in the evidentiary hearing on the postconviction claim that Foster's trial counsel was ineffective for failure to present a voluntary intoxication defense and, in support of that defense, to put on evidence of the enhanced effect intoxicating substances would have had on him due to his intellectual disability. This was the hearing held prior to the Supreme Court's decision in Atkins , during which Foster introduced his IQ score of 75. That record also included some evidence of adaptive deficits, but the trial court found that the record as a whole did not demonstrate that Foster met any of the intellectual disability prongs.

After the United States Supreme Court issued Hall , Foster timely filed the successive motion at issue in this appeal, renewing his intellectual disability claim on the basis of Hall and this Court's Hall -based decision in Walls v. State , 213 So.3d at 346, which held that Hall is retroactive. Foster proffered evidence in support of this claim, including affidavits of friends and family concerning adaptive deficits, school records to show adaptive deficits and onset before the age of eighteen, and the expert opinion of Dr. Jethro Toomer, based on these affidavits and records and the earlier assessments, that a diagnosis of intellectual disability is appropriate for Foster. The postconviction court denied Foster's Hall claim without an evidentiary hearing, concluding that the claim is procedurally barred because all three prongs of the intellectual disability test have already been considered for Foster. We disagree and hold that Foster is entitled to an evidentiary hearing on his intellectual disability claim for the same reasons that we granted evidentiary hearings in Walls and Franqui v. State , 211 So.3d 1026 (Fla. 2017).

Upon review of the record in Walls , we determined that, although Walls had previously received consideration of his intellectual disability claim after an evidentiary hearing, the proceedings in that case were not sufficient to show compliance with the "holistic review" required by Hall due to the effect the IQ-score cutoff likely had on those proceedings.

Walls , 213 So.3d at 346-47. We made the following determinations in that case:

Walls' prior hearing was conducted under standards he could not meet because he did not have an IQ score below 70-a fact which may have affected his presentation of evidence at the hearing. Because Walls' prior evidentiary hearing was directed toward satisfying the former definition of intellectual disability and was reviewed by the circuit court with the former IQ score cutoff rule in mind, we remand for the circuit court to conduct a new evidentiary hearing as to Walls' claim of intellectual disability.

Id at 347. We applied this reasoning in Franqui , noting that because Franqui presented IQ scores over 70, "the circuit court may have determined that it was unnecessary to consider or discuss the second and third prongs [of the intellectual disability test] in detail." 211 So.3d at 1032. Similar reasoning applies to the instant case.

Before Hall , Foster's IQ score of 75, the only score that has ever been presented in court, disqualified him as a matter of law from being considered intellectually disabled in Florida. Although the original postconviction court did not cite this standard, its analysis began with skepticism that Foster could be considered intellectually disabled given his achievement of a score of 75 on an IQ test, and the court's consideration of this issue was not aided by any explanation of the standard error of measurement. Also, while the original postconviction court based its decision on Foster's failure to meet the other two prongs of the intellectual disability test, which are not IQ-based, we cannot be sure that its assessment of the evidence was not tainted by a failure to view his IQ score of 75 in a proper light. Indeed, it appears that the original postconviction court viewed Foster's IQ score of 75 as evidence undermining his claim.

Likewise, Foster is in a position similar to Walls and Franqui with respect to limitations on his presentation of evidence due to the absence of Hall 's guidance. At the prior postconviction evidentiary hearing concerning intellectual disability, Foster's counsel was focused on proving that an involuntary intoxication defense would have been enhanced with evidence of intellectual disability, not on proving a claim of intellectual disability as a bar to execution under the governing case law, which was issued after that hearing. He presented evidence of intellectual disability only to show that his drug and alcohol use would have affected him more severely than it would have affected another person with higher intellectual functioning, and he came to the hearing with the background of having received a finding from the trial court that he is mildly intellectually disabled (albeit not a finding based on the Atkins prongs). The limitation on Foster's evidentiary presentation is illustrated by the fact that he did not offer any of his school records into evidence, even though the record generated in connection with the motion under review shows that Foster's school records would have afforded favorable, though not conclusive, evidence for Foster. Similarly, he did not include testimony from friends and family who observed adaptive deficits in him as a child, even though the current record includes affidavits showing that this testimony would have been available. In fact, it includes an attestation from a family member that Foster was in special education, which was not indicated at the original postconviction evidentiary hearing. In consideration of these points and in light of Hall , Walls , and Franqui , we conclude that Foster must now be afforded an opportunity to present evidence of intellectual disability in a proceeding fully informed by Hall . See also Brumfield v. Cain , --- U.S. ----, 135 S.Ct. 2269, 2281, 192 L.Ed.2d 356 (2015) (noting that in Brumfield's pre- Atkins trial, he "had little reason to investigate or present evidence relating to intellectual disability" and, therefore, the Louisiana court erred in denying him a hearing due to the failure of the record to raise a sufficient doubt about his intellectual functioning).

Although Foster alternatively seeks to forego an evidentiary hearing and requests the imposition of a life sentence based on the trial court's finding in his sentencing order that he is "mildly mentally retarded" and the evidence in the record, that remedy would not be appropriate. Just as Foster has not had a full opportunity to present his evidence in accordance with the applicable legal standards, the State has not had an opportunity to refute it. On the record before us, the proper remedy is a Hall -compliant evidentiary hearing.

Accordingly, we reverse the summary denial of this claim and remand for an evidentiary hearing.

HURST CLAIMS

In his two remaining claims, Foster seeks relief from his two sentences of death pursuant to Hurst v. Florida and this Court's decision on remand in Hurst v. State . Foster is not entitled to relief on these claims. Foster was sentenced to death for each murder following a jury's unanimous recommendation for death. Foster I , 679 So.2d at 751. Foster's sentences of death became final in 1997. Foster v. Florida , 520 U.S. 1122, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997). Thus, Hurst does not apply retroactively to Foster's sentences of death. See Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). Accordingly, we affirm the denial of these claims.

CONCLUSION

For the reasons explained above, we reverse the summary denial of Foster's intellectual disability claim and remand for an evidentiary hearing on that claim but affirm the denial of Hurst relief.

It is so ordered.

LEWIS, QUINCE, LABARGA, and LAWSON, JJ., concur.

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

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

PARIENTE, J., concurring in result.

I concur with reversing the postconviction court's denial of Foster's Hall claim and remanding for an evidentiary hearing on intellectual disability. I also agree that Foster is not entitled to Hurst relief-not because his case was final before Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), but because the jury unanimously recommended sentences of death, no aggravating factors were stricken, and Foster did not waive mitigation. See Davis v. State , 207 So.3d 142, 175 (Fla. 2016).

CANADY, C.J., concurring in part and dissenting in part.

I agree that Foster's Hurst claim should be rejected. I adhere to the view that Hurst should not be given retroactive effect on postconviction review. See Mosley v. State , 209 So.3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part). And I adhere to the view that when-as here-a jury verdict has established the existence of an aggravator, there is no violation of the requirements of Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). See Hurst v. State , 202 So.3d 40, 77-82 (Fla. 2016) (Canady, J., dissenting), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). So I concur in result regarding the majority's affirmance of the denial of Hurst relief.

I dissent from the reversal of the denial of Foster's intellectual disability claim. On that issue, I would affirm the trial court. In my view, Hall should not be given retroactive effect on postconviction review. See Walls v. State , 213 So.3d 340, 350-52 (Fla. 2016) (Canady, J., dissenting).

POLSTON, J., concurs.

      In the same case, Foster was convicted of and sentenced for the attempted first-degree murder of Mike Rentas and four counts of kidnapping for kidnapping the above-mentioned victims and their companion, Tammy George. Foster I , 679 So.2d at 750-51. However, only the death sentences are at issue in this appeal.

      The trial court found the following aggravators: Foster was previously convicted of another capital felony; the capital felony was committed while the defendant was engaged in the commission of a kidnapping; the capital felony was committed for pecuniary gain; and the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Foster I , 679 So.2d at 751 n.2.

      As the statutory mitigator, the trial court found that Foster's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. Id. at 751 n.3.

      The two terms are used interchangeably in this opinion to the extent of leaving the quotations from the record and case law unaltered when the former term is used.

      Foster raised the following issues on direct appeal: (1) the death penalty is disproportionate; (2) the trial court improperly balanced the aggravators against the mitigators; (3) the trial court erred in denying Foster's motion for mistrial based on the wrongful admission of hearsay evidence over objection; (4) the trial court erred by allowing witnesses to testify about other crimes or bad acts; (5) the trial court erred in excusing a juror for cause over defense objection; (6) the trial court erred in instructing the jury that it could consider whether the murder was heinous, atrocious, or cruel; (7) the trial court erred in refusing to strike jurors for cause; (8) the trial court erred in finding that the murders were committed in a cold, calculated, and premeditated manner; (9) the trial court erred in overruling objections to the introduction of racial prejudice into the proceedings; (10) the trial court erred in considering separately that the murder was for pecuniary gain and that the murder occurred during the course of a kidnapping; (11) a new trial is warranted because of prosecutorial misconduct; and (12) section 921.141, Florida Statutes (1993), is unconstitutional. Foster I , 679 So.2d at 751 n.4.

      Foster raised the following claims in his amended motion for postconviction relief: (1) Foster's trial counsel was ineffective for failing to adequately investigate and prepare for the case; (2) Foster's trial counsel was ineffective for not providing evidence relating to Foster's mental health to the jury; (3) Foster's trial was compromised by procedural and substantive errors; (4) Foster's trial counsel was ineffective for failing to object to the trial court's finding that the murders were committed in a cold, calculated, and premeditated manner; (5) the jury received inadequate guidance from the court regarding the aggravators to be considered; (6) prejudicial pretrial publicity denied Foster's right to an impartial trial; (7) the penalty phase jury instructions unconstitutionally shifted the burden to Foster; and (8) Foster's counsel was ineffective because the court failed to instruct the jury regarding the statutory mitigator regarding the crime being committed while Foster was under extreme mental disturbance. Foster II , 929 So.2d at 527. Foster later filed a supplemental motion alleging an additional claim, that his trial counsel was ineffective for failing to investigate a voluntary intoxication defense in conjunction with his intellectual disability. Id. at 528. In addition to the supplemental motion, which was accepted by the postconviction court, Foster moved for leave to amend his motion to include a claim regarding an alleged racial slur by his counsel and a statement that mitigation was useless. Id. The postconviction court denied the motion for leave to amend. Id. However, during the appeal from the denial of Foster's motion, this Court relinquished jurisdiction for an evidentiary hearing on the claim concerning the alleged racial slur, and the postconviction court ultimately denied the claim on the merits. Id.

      Although this sentence in Walls ends with a suggestion that "no single factor can be considered dispositive," we have since clarified that, even after Hall , a failure to prove any one prong of the intellectual disability test is a failure to prove the claim. Quince v. State , 241 So.3d 58, 62 (Fla. 2018) ; Williams v. State , 226 So.3d 758, 773 (Fla. 2017) (citing Salazar , 188 So.3d at 812 ). Thus, while an assessment of intellectual disability involves "conjunctive and interrelated" factors, Hall , 134 S.Ct. at 2001, if a defendant cannot produce an IQ score that shows significantly subaverage intellectual functioning even when the standard error of measurement is taken into account, the claim will fail for lack of proof of the first prong. Quince , 241 So.3d at 62.

      That standard had not been announced by this Court at the time of the original postconviction court's decision, but the standard was driven by the statutory definition of "mental retardation" that was already in effect at that time, see § 921.137, Fla. Stat. (2001), and the standard had been announced by the time this Court affirmed the original postconviction court's ruling. See Zack v. State , 911 So.2d 1190, 1201 (Fla. 2005).

      Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      See per curiam op. at 181; see also Hitchcock v. State , 226 So.3d 216, 222-23 (Fla.), cert. denied --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) (Pariente, J., dissenting); Asay v. State (Asay V ), 210 So. 3d 1, 32-35 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017) (Pariente, J., concurring in part and dissenting in part).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC18-1970
    Supreme Court of Florida.
    December 28, 2018
   PER CURIAM.

This opinion fulfills our constitutional obligation to determine the State's need for additional judges in fiscal year 2019/2020 and to certify our "findings and recommendations concerning such need" to the Legislature. Certification is "the sole mechanism established by our constitution for a systematic and uniform assessment of this need." In re Certification of Need for Additional Judges , 889 So.2d 734, 735 (Fla. 2004).

In this opinion, we certify the need for two additional circuit court judgeships in the Ninth Judicial Circuit, one additional circuit court judgeship in the First Judicial Circuit, one additional circuit court judgeship in the Fourteenth Judicial Circuit, four additional county court judgeships in Hillsborough County, and no additional judgeships in the district courts of appeal. We decertify the need for two county court judgeships in Brevard County and one county court judgeship in Pasco County.

To make this decision, the Florida Supreme Court continues to use a verified objective weighted caseload methodology as a primary basis for assessing judicial need. The objective data are supplemented by judgeship requests submitted by the lower courts, including various secondary factors. These secondary factors identified by each chief judge reflect local differences in support of their requests for more judgeships or in support of their requests to not decertify judgeships in situations where the objective case weights alone would indicate excess judicial capacity. Applying the criteria in this two-step methodology, this Court concludes that the First, Ninth, and Fourteenth circuits have a demonstrable need for additional circuit judges. Using the same criteria, this Court has concluded that the secondary factor analysis and uncertainty that are further explained below warrant fewer decertifications than the raw numbers alone would indicate.

A number of issues require additional study, review, and consideration because they impact our ability to accurately project judicial need. First is the potential impact of a jurisdiction change in county court. In view of the attention given during the 2018 legislative session to the issue of county court jurisdiction, this Court issued In re Work Group on County Court Jurisdiction , Fla. Admin. Order No. AOSC18-39 (Aug. 1, 2018), establishing the Work Group on County Court Jurisdiction within the Judicial Management Council. We directed that work group to review the county court and small claims jurisdictional limits, which have not been adjusted since 1992 and 1996 respectively, and we instructed the work group to further consider and examine operational and workload issues that would be affected if those limits were to be adjusted upward. The report of that work group was submitted on November 30 of this year and is currently under review by this Court. Given the recent interest by the Florida Legislature in adjusting county court jurisdiction, it is possible county court jurisdiction thresholds for civil cases, the procedures and path for appeals in certain cases, and small claims jurisdiction amounts may be adjusted. Precise estimates of how these changes would affect objective measures are challenging when considered individually and more so when multiple adjustments are contemplated. Any of the changes can reasonably be expected to shift workload in county, circuit, and appellate courts.

Additionally, trial court judges report that changes in law since the current case weights were developed in 2015 have resulted in more judicial involvement in cases generally. An example is the recent amendments to section 790.401, Florida Statutes (2018), creating an action known as a petition for a risk protection order to prevent persons who are at high risk of harming themselves or others from accessing firearms or ammunition. Since enactment of this legislation in March 2018, the courts have handled approximately 100 of these actions per month around the state. The impact of this and other legislation, such as section 825.1035, Florida Statutes (2018), the statute creating vulnerable adult injunctions, requires careful assessment.

Similarly, with the growth of problem-solving courts throughout the state and the increased number of cases handled by those problem-solving courts, it is important for this Court, in its consideration of assessment of judicial need, to evaluate the impact to judicial workload these courts create. While these courts show positive results in reduced recidivism and better outcomes for citizens, they also require significantly more judicial time.

This Court is reluctant to decertify judgeships while important reviews it has ordered, some of which may revise the very rules governing its analysis, are pending. Specifically, this Court has directed the Commission on Trial Court Performance and Accountability to review Florida Rule of Judicial Administration 2.240. This review will include an assessment of the secondary factors influencing judicial certification to determine if there are areas of inconsistency, overlap, or gaps between current factors in the case-weight formula and the unique local differences reported by the chief judges in the secondary factors portion of the evaluation of judicial need. The Commission has been specifically instructed to review rules 2.240(b)(1)(B) and 2.240(c), Florida Rules of Judicial Administration, concerning secondary factors to determine if there is a need to recommend modifications.

Finally, we note a need to monitor and consider any increases in litigation in the storm-impacted areas of the state, especially indebtedness and contract cases associated with Hurricane Irma in 2017 and Hurricane Michael in October 2018.

Having conducted a quantitative assessment of trial court and appellate court judicial workload and, as noted above, having also considered the various qualitative factors, workload trends, and uncertainties under consideration by this Court, we certify the need for eight additional trial court judges in Florida, consisting of four in circuit court and four in county court, as set forth in the appendix to this opinion. We are also recommending the decertification of three county court judgeships, also identified in the appendix, and we certify no need for additional judges in the district courts of appeal.

It is so ordered.

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

Attachment

      Article V, section 9 of the Florida Constitution provides in pertinent part:
      Determination of number of judges. -The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

      Our certification methodology relies primarily on case weights and calculations of available judge time to determine the need for additional trial court judges. See Fla. R. Jud. Admin. 2.240.


text:
    Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC18-88
    Supreme Court of Florida.
    December 28, 2018
    Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying Troy Merck's successive motion to vacate a judgment of conviction of first-degree murder under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution. Merck contends that the postconviction court erred in denying his overlapping claims of newly discovered evidence and violations of Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons explained below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Merck was convicted of the first-degree murder of James Newton and sentenced to death, and his conviction was affirmed on direct appeal in 1995. Merck v. State (Merck I ), 664 So.2d 939, 940 (Fla. 1995). We have since affirmed the denial of Merck's initial motion for postconviction relief and denied his petition for writ of habeas corpus. Merck v. State (Merck IV ), 124 So.3d 785, 790 (Fla. 2013). However, errors in the sentencing process have required resentencing on two prior occasions, Merck I , 664 So.2d at 944 ; Merck v. State (Merck II ), 763 So.2d 295, 299 (Fla. 2000), and Merck is presently awaiting his third resentencing due to Hurst error in his most recent penalty phase.

The subject of this appeal is Merck's first successive motion for postconviction relief. In that motion, Merck alleged violations of Giglio and Brady , as well as a more general claim of newly discovered evidence, based on information his postconviction investigator recently obtained from Neil Thomas, a key witness for the State at Merck's trial. Because Merck has been granted a new penalty phase, the issues addressed in this decision pertain to his conviction only.

In Merck's first appeal, we described the facts of the crime as follows:

Newton died after Merck repeatedly stabbed him ... in the parking lot of a bar in Pinellas County shortly after 2 a.m. on October [11], 1991. The bar had closed at 2 a.m., and several patrons of the bar remained in the parking lot. The evidence was that several of these individuals, including the victim, Merck, and those who witnessed the murder, had consumed a substantial amount of alcohol during the evening while at the bar.
After closing, Merck and his companion [Thomas], both of whom had recently come to Florida from North Carolina, were in the bar's parking lot. The two were either close to or leaning on a vehicle in which several people were sitting. One of the car's occupants asked them not to lean on the car. Merck and [Thomas] sarcastically apologized. The victim approached the car and began talking to the car's owner [Katherine Sullivan]. When Merck overheard the owner congratulate the victim on his birthday, Merck made a snide remark. The victim responded by telling Merck to mind his own business. Merck attempted to provoke the victim to fight; however, the victim refused.
Merck then asked [Thomas] for the keys to the car in which he had come to the bar [which was a Mercury Bobcat]. At the car, Merck unlocked the passenger-side door and took off his shirt and threw it in the back seat. Thereafter, Merck approached the victim, telling the victim that Merck was going to "teach him how to bleed." Merck rushed the victim and began hitting him in the back with punches. [Sullivan] testified that she saw a glint of light from some sort of blade and saw blood spots on the victim's back. The victim fell to the ground and died from multiple stab wounds ; the main fatal wound was to the neck.

Merck I , 664 So.2d at 940-41.

Merck had two theories of defense. First, he argued that there was a reasonable doubt as to whether he, rather than Thomas, was the attacker. Second, he argued that if he was the attacker, he was so intoxicated that he "blacked out" and did not remember it and, therefore, could not have formed the intent to commit premeditated first-degree murder.

The trial evidence showed that Thomas and Merck spent approximately four hours at the bar before the murder. Merck testified that he consumed twelve to fifteen beers and eight to ten shots of liquor during this time. In contrast, Thomas testified that he and Merck each consumed approximately six beers and two or three shots of liquor. Thomas testified that he felt "buzzed pretty good" and that Merck did not show any effects from his consumption of alcohol. Merck did not seem to be having any trouble walking, standing, or talking, and Merck responded appropriately when Thomas spoke to him. Sullivan also testified that the attacker, whom she identified as Merck both in court and before trial, had no trouble walking or talking.

According to Thomas, after the attack was over, Merck urged him to "[c]ome on," and Thomas then got into the Bobcat and drove away with Merck, asking Merck if he had stabbed Newton. Thomas recalled that Merck held up a bloody knife, announced that he had killed Newton, and said that if he had not succeeded in killing Newton, he would go to the hospital and "finish what [he] started." Thomas testified that Merck described the attack repeatedly from that point forward. At some point, Merck explained to Thomas that he decided to kill Newton when Newton failed to back down from the confrontation as Merck approached him.

Thomas testified that after escaping the scene, he parked the Bobcat at an apartment complex, where he and Merck began to change clothes. Thomas recounted that as he and Merck were in the parking lot, Thomas saw a patrol car slam on its brakes and turn around, at which point he and Merck ran. They hid in some bushes and then made their way to a Burger King, where they called a cab. Merck and Thomas had the driver drop them off at a bowling alley across the street from a motel where they intended to stay. However, before going to the motel, they played a game of pool, and Merck had no difficulty with the game. According to Thomas, once they arrived at the motel, Merck continued describing the attack. Thomas testified that Merck did not pass out or start sleeping or "anything like that" and that Merck did not seem to have any difficulty remembering what happened.

Contrary to Thomas's account of Merck's actions and demeanor, Merck testified that after he heard Thomas calling Newton a name, he leaned down to pick something up and that the next thing he remembers is leaning on the Bobcat and hearing Thomas tell him to hurry up and change clothes. Merck testified that he remembered running with Thomas when they saw a patrol car. He also testified that he remembered going to "a Hardee's or something," lying in some bushes, and taking a cab to a bowling alley where he went in and shot pool. The next thing he remembered after that was waking up the next morning at a motel. According to Merck, after he told Thomas he did not remember the night before, Thomas told him that they had been in a fight and, later, that Merck had stabbed someone.

Thomas and Merck both testified that three females joined them at the motel during the weekend after the stabbing. Two of these females testified that, although Merck described the stabbing and claimed to have done it, he was often interrupted by Thomas, who supplied and corrected details of Merck's account while Merck looked as though he did not really believe he did what Thomas attributed to him. The third female contradicted this testimony, stating that Thomas did not take part in recounting the incident.

A couple of days after the stabbing, Thomas walked away from the motel and arranged to be picked up at another location. When his contact arrived, he was advised that the police were on their way as well. Thomas was reluctant to talk to the police at first, but he ultimately told the police where Merck was and learned a few minutes later that Merck was in custody. Thomas gave a sworn statement that same day, giving essentially the same account that he later presented at trial. At trial, Thomas testified that no one had threatened him to get him to "tell what [he] knew about the incident."

GIGLIO , BRADY , AND NEWLY DISCOVERED EVIDENCE CLAIMS

The successive postconviction motion at issue in this appeal relates to Thomas's testimony concerning Merck's level of intoxication, as well as Thomas's motivation to testify and to minimize Merck's level of intoxication. The postconviction court granted Merck an evidentiary hearing, where it received the testimony of Thomas, as well as Merck's trial counsel, Merck's initial postconviction counsel, and Merck's current postconviction investigator. Merck relied on portions of this testimony to support each of his claims: a Giglio claim, a Brady claim, and a newly discovered evidence claim. However, the main substance of each claim is based on Thomas's testimony.

At the evidentiary hearing, Thomas testified that the State had advised him that if he did not attend Merck's trial to testify, then a "protective custody warrant" would be issued and he would "be held in jail until [he] did testify." Merck submitted into evidence a motion the State had filed under a case styled against Thomas, indicating that Thomas was a material witness. Thomas confirmed that this filing was the reason he participated in the trial. Indeed, he had failed to appear to testify in an earlier trial of this case, which resulted in a hung jury.

Regarding the substance of his trial testimony, Thomas testified at the evidentiary hearing that he had always been "bothered" by a concern that Merck "was probably a little bit more intoxicated than what [Thomas] had said" at trial. He opined that Merck was "a lightweight" when it came to drinking alcohol and that Merck was, in fact, "very, very drunk," or "highly intoxicated," at the time of the stabbing. Thomas noted that he was much larger than Merck and, accordingly, that Merck "may have been a lot drunker than [Thomas] was." Thomas's recollection at the time of the evidentiary hearing was that he and Merck had been "drinking pretty much the same amount," although Merck also drank some tequila and Thomas did not.

Another concern that had "stuck with [Thomas] all this time" and troubled him was that he failed to mention a particular occurrence during his trial testimony. Specifically, Thomas did not mention that he had "a hard time getting [Merck] to respond to him" and to get out of the car to change clothes after the getaway. Thomas explained that, while he was testifying previously, he had a "picture in [his] head," which was a memory, or a "flash in [his] mind," of Merck "kind of slumped over" and not responding to him. Thomas explained that he did not mention this memory at the time because there were other questions "coming at [him]" from the attorneys and he focused on those questions. Thomas was equivocal concerning whether he had this memory during the guilt-phase trial or at some other time when he was being questioned under oath. However, at one point, he concluded that "it was the last time that [he] testified"-which the record shows was at Merck's most recent resentencing in 2004.

Thomas also testified at the evidentiary hearing that, just before trial, he told the prosecutor he was having difficulty remembering how many drinks he and Merck had consumed on the night of the stabbing. According to Thomas, the prosecutor responded by telling him that he "need[ed] to stick to" what he said in his deposition. Thomas confirmed that he had taken this approach while testifying and that he took the instruction to mean that if he could not remember something, he should "refer to what [he] had already said because that would have been [at] an earlier time" when his recollection was better. However, Thomas also testified that he was instructed to review the deposition to refresh his memory. Additionally, he noted that the prosecutor had commented that his memory would have been fresher at the time of the deposition, "or at least [at the time of] the statement that [he] had given to police."

Although Thomas indicated that he understood the instruction to be that he should repeat what he said earlier if he did not have an independent recollection, he did not have the impression that the prosecutor was "intentionally trying to ... coerce [his] testimony or anything like that." When asked if he had ever said that he was told to minimize Merck's level of intoxication, Thomas answered, "I may have said that," and then explained that he was referring to the conversation about his failing memory as to the number of drinks he and Merck consumed and the instruction to refer to his deposition.

When asked if he had changed his mind about whether Merck would have known what he was doing and remembered what he was doing, Thomas answered, "No. Nothing else is different." Thomas confirmed that, just as he indicated at trial, Merck could not stop talking about the murder after Merck committed it and that he was "rather proud of it." Thomas also confirmed that Merck held the bloody knife up in the car and said that if Newton was not dead, he would go to the hospital and finish killing him. He affirmed that he told the truth at trial to the best of his ability and was not trying to mislead anyone.

After the hearing, the postconviction court denied each claim, and Merck argues on appeal that each denial was erroneous.

ANALYSIS

We address each claim in turn, reviewing the postconviction court's factual findings for competent, substantial evidence, Waterhouse v. State , 82 So.3d 84, 101 (Fla. 2012) (quoting Hitchcock v. State , 991 So.2d 337, 349 (Fla. 2008) ), and its application of the law to the facts de novo. Brooks v. State , 175 So.3d 204, 231 (Fla. 2015).

Giglio Claim

A Giglio claim consists of the following elements: "(1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material." Geralds v. State , 111 So.3d 778, 791-92 (Fla. 2010) (citing Guzman v. State , 941 So.2d 1045, 1050 (Fla. 2006) ). False testimony presented in violation of Giglio is material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Guzman v. State , 868 So.2d 498, 506 (Fla. 2003) (quoting United States v. Agurs , 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ). Thus, "[t]he State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt." Id. (citing United States v. Bagley , 473 U.S. 667, 679 n.9, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ).

In denying Merck's Giglio claim, the postconviction court found that Merck failed to establish either that Thomas gave false testimony or that the State knowingly presented false testimony. On appeal, Merck argues that the postconviction court erred in failing to find that the State committed Giglio violations in the following ways: (1) by presenting Thomas's testimony about Merck's level of intoxication and the amount of alcohol he drank as Thomas's clear recollection, when, in fact, Thomas told the prosecutor that he was having difficulty remembering and Thomas was instructed to "stick to" his deposition, which was given only a month before trial; (2) by eliciting testimony from Thomas that he had not been threatened as an inducement for his testimony when, in fact, he was threatened with arrest if he failed to appear for trial; and (3) by failing to correct Thomas's testimony that he had not been promised anything when, in fact, there was an undisclosed quid pro quo , as revealed by the fact that Thomas asked for and received help with his violation of probation charge in 1997. For the reasons explained below, these points do not establish Giglio violations.

First, Thomas's postconviction testimony, as construed and credited by the postconviction court, refutes Merck's claim that the State presented false evidence by instructing Thomas to "stick to" his deposition concerning the amount of alcohol Merck consumed and his level of intoxication. Although Thomas may have interpreted the prosecutor's instruction as a directive to repeat what he said in his deposition even if he did not remember the facts independently, there was a conflict in the evidence concerning the crucial question of whether the prosecutor intended to give such a directive and, therefore, could be said to have "knowingly" done so. Thomas's evidentiary-hearing testimony itself was subject to different interpretations on this question. Also, the interpretation of the prosecutor's instruction as a recommendation that Thomas rely on the deposition to refresh his memory, rather than dictate his trial testimony, was supported by Merck's trial counsel's testimony that it is common practice to have witnesses review their prior statements before they testify at trial.

It was for the postconviction court to resolve the factual issue concerning the meaning of the exchange between the prosecutor and Thomas. See Porter v. State , 788 So.2d 917, 923 (Fla. 2001) ("So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court."). The court resolved the issue in favor of the State's position, crediting the portion of Thomas's testimony indicating that the prosecutor had told him to look at his previous testimony to refresh his memory because that testimony was given closer in time to the events at issue. Of course, such an instruction is not improper. Cf. Wilcox v. State , 143 So.3d 359, 378 (Fla. 2014) (recognizing the practice of refreshing a witness's recollection during trial, even with a writing produced by someone else, and finding error in the trial court's failure to allow the defendant to do so). Merck's argument on appeal is an improper attempt to have us reweigh the evidence and make a different factual finding as to the nature of the instruction given. See Porter , 788 So.2d at 923. We decline to do so. The postconviction court's findings are supported by competent, substantial evidence and belie Merck's position.

Second, Merck's postconviction evidence is insufficient to establish that Thomas testified falsely when he said that no one had threatened him to induce him to "tell what [he] knew about the incident." Merck argues that this testimony was false because the State had threatened to hold Thomas in jail until he testified if he failed to appear for Merck's second trial. However, this evidence does not support a conclusion that Thomas testified falsely when he said no one threatened him to get him to "tell what [he] knew about the incident," as the trial evidence shows that Thomas spoke to the police voluntarily shortly after he left Merck's company. The record also shows that Thomas gave a sworn statement that same day and provided essentially the same account that he told at trial. Thus, the record supports the conclusion that Thomas volunteered to tell what he knew about the incident. Furthermore, the trial testimony concerning threats can be reasonably understood as referring to the substance of Thomas's testimony, not the compulsion of his attendance at trial. For these reasons, the postconviction court's finding that Thomas did not testify falsely is supported by the record and is not undermined by the evidence that Thomas's attendance at trial was compelled by the threat of arrest.

Third, Merck has failed to establish a Giglio violation concerning an alleged quid pro quo agreement between Thomas and the prosecutor, which Merck says is evidenced by assistance Thomas received from Merck's prosecutor in 1997 in resolving an unrelated charge of violation of probation. This claim is untimely because Thomas testified about the assistance he received with the violation of probation in 2004 at Merck's second resentencing. See Jimenez v. State , 997 So.2d 1056, 1064 (Fla. 2008) (citing Mills v. State , 684 So.2d 801, 804-05 (Fla. 1996) ) (explaining that a successive motion for postconviction relief alleging newly discovered evidence in a death-penalty case is untimely if it is not filed within one year of the date the claim became discoverable through due diligence). However, even if this claim were not untimely, the evidence does not establish a quid pro quo agreement. Thomas testified that he reached out to the prosecutor on his own initiative and was told that he should not be doing so but that the prosecutor would "see what he could do," and this event occurred long after Merck's trial.

In addition, Merck argues that this evidence must be considered cumulatively with other evidence that he presented previously in postconviction proceedings and evaluated under the Giglio standard of materiality. However, as shown by the foregoing analysis, the motion under consideration does not involve any Giglio evidence. Thus, the cumulative claim fails.

For the foregoing reasons, Merck's Giglio claim is without merit.

Brady Claim

A Brady claim has three elements: (1) evidence must be identified that would have been favorable to the defense because it was either exculpatory or impeaching; (2) the defendant must show that the State suppressed the evidence, either willfully or inadvertently; and (3) the defendant must show that he was prejudiced by the suppression of the evidence. Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ; see Brady , 373 U.S. at 87, 83 S.Ct. 1194. The prejudice prong requires a showing that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Mordenti v. State , 894 So.2d 161, 170 (Fla. 2004) (quoting Strickler , 527 U.S. at 280, 119 S.Ct. 1936 ); see also Bagley , 473 U.S. at 682, 105 S.Ct. 3375. This standard is met by showing that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Mordenti , 894 So.2d at 170 (quoting Allen v. State , 854 So.2d 1255, 1260 (Fla. 2003) ); see Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

Merck contends that the postconviction court erred by failing to rule that the following evidence constitutes Brady material: (1) the instruction to Thomas to "stick to" his deposition testimony; (2) a recollection Thomas had that Merck was slumped over and nonresponsive during the getaway, which Merck argues was inadvertently suppressed as a result of the instruction to "stick to" the deposition testimony; (3) the instruction that Thomas would be arrested if he failed to appear; and (4) Thomas's statement to the prosecutor before trial that he was having difficulty remembering how much Merck drank. For the reasons provided below, we disagree.

First, the instruction to "stick to" Thomas's deposition testimony does not constitute Brady material. As explained above, the postconviction court found that this instruction was nothing more than a direction to rely on prior testimony to refresh Thomas's recollection, and this finding is supported by competent, substantial evidence. Therefore, Merck has not established the first prong of Brady .

Second, as to Thomas's memory of Merck's slumping over and not responding to instructions to change clothes, the postconviction court found, and Thomas's testimony supports, that the prosecutor did not know about this recollection. Further, the postconviction court found, and Thomas's testimony supports, that Thomas never told the prosecutor about it and that he did not have this recollection until after his guilt-phase testimony. Although Merck emphasizes portions of Thomas's evidentiary-hearing testimony that would support a finding that he had this memory during his guilt-phase trial testimony, this emphasis is an improper attempt to have this Court reweigh the evidence. See Porter , 788 So.2d at 923. The pertinent legal principle to apply to the facts found by the postconviction court on this matter is that "[a] Brady violation occurs 'when the government fails to disclose evidence materially favorable to the accused.' " Hurst v. State , 18 So.3d 975, 988 (Fla. 2009) (quoting Youngblood v. West Virginia , 547 U.S. 867, 869-70, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) ). Because neither the prosecutor nor any other representative of the State knew about the slumping incident, the State cannot be said to have failed to disclose it. Therefore, Merck has not established the second prong of Brady .

Merck argues that the State did not have to know about this information to suppress it, as the Brady test for suppression includes inadvertent suppression, and one need not know about a fact to inadvertently suppress it. Assuming arguendo that this position could be valid under some circumstances, the evidence Merck presented at the postconviction hearing does not support such a theory of suppression. Merck's counsel attempted to elicit testimony from Thomas that the prosecutor's instruction caused him not to reveal the slumping incident at trial, but Thomas did not confirm this suggestion. This fact, along with the finding and evidence that Thomas did not have this recollection until after the guilt phase, shows that Merck failed to establish his theory of suppression as to this issue.

Third, as to the instruction that Thomas would be arrested if he failed to appear, the State correctly points out that Merck's postconviction counsel did not ask Merck's trial counsel if he knew about this threat. Part of establishing a Brady claim is showing that the defense did not possess the information at issue. See Hurst v. State , 18 So.3d 975, 988 (Fla. 2009) (noting that the "defendant has the burden" to prove each element of a Brady claim); Provenzano v. State , 616 So.2d 428, 430 (Fla. 1993) (explaining that "[t]here is no Brady violation ... where the defense ... had the information"). Because Merck failed to show that his counsel was unaware of the threat to arrest Thomas if he failed to appear or even to ask his counsel about this matter at the evidentiary hearing, Merck failed to meet his burden to establish that this information was suppressed.

Fourth, as to Thomas's statement to the prosecutor that he was having difficulty remembering how much Merck drank, even if this fact was suppressed, it is not significant enough to meet the Brady standard of materiality. Thomas testified at the evidentiary hearing that, other than his perception of Merck's level of intoxication and memory of Merck's slumping, nothing that he currently remembers is different from what he previously testified to. At trial, Thomas described Merck's speech and motor skills as being unaffected by alcohol, stated that Merck bragged about the stabbing immediately afterwards and during the days that followed, and quoted statements of Merck indicating his specific intent to kill the victim, including Merck's explanation that he decided to kill the victim because the victim did not back down and Merck's statement that if the victim was not dead, he would go to the hospital to finish killing him. Furthermore, at the evidentiary hearing, Thomas testified again that "kind of what [he] recall[s]" is that he and Merck "were drinking pretty much the same amount," although Merck "may have had a little bit more than" Thomas. That testimony is consistent with Thomas's trial testimony. Also, Sullivan's observations that the attacker was having no trouble walking or talking corroborated Thomas's testimony concerning the lack of observable effects of alcohol in Merck.

For these reasons, although questioning on this issue could have led the jury to discredit Thomas's testimony about the exact number of alcoholic beverages Merck drank, it would not have affected the more pertinent question of what observable effects the alcohol had on Merck and whether the evidence, on the whole, showed that Merck took the actions ascribed to him and did so with the requisite intent. Accordingly, the absence of questioning on this matter does not undermine our confidence in the verdict.

In addition, Merck argues that this evidence must be considered cumulatively with other evidence that he presented previously in postconviction proceedings and evaluated under the Brady standard of materiality. However, Merck has not identified any suppressed evidence that was the subject of a prior postconviction proceeding. Therefore, he has not identified any additional evidence to be evaluated under the Brady standard of materiality in the consideration of the motion at issue. Cf. Smith v. Sec'y Dep't of Corr. , 572 F.3d 1327, 1334 (11th Cir. 2009) ("Considering the undisclosed evidence cumulatively means adding up the force of it all and weighing it against the totality of the evidence that was introduced at the trial. That is the way a court decides if its confidence in the guilty verdict is undermined where a suppressed-evidence type of Brady claim is involved, or if the suppression was harmless beyond a reasonable doubt where a Giglio type of Brady claim is involved.").

For the foregoing reasons, Merck's Brady claim lacks merit.

Newly Discovered Evidence Claim

Merck further argues that, to the extent the new information he received from Thomas does not establish a Giglio or Brady violation, it constitutes newly discovered evidence entitling him to a retrial. We disagree because this claim is both procedurally barred and without merit.

Procedural Bar

This claim is procedurally barred because it was not filed within one year of the date it became discoverable through due diligence. Franqui v. State , 118 So.3d 807, 2013 WL 2211675, at *1 (Fla. 2013) (table decision); Jimenez , 997 So.2d at 1064 (citing Mills , 684 So.2d at 804-05 ). This claim is based on testimony received from a witness who has been known since before trial and who was not sought by postconviction counsel until 2014, ten years after he testified in the last resentencing proceeding in this case. Significantly, the decision to contact Thomas was not based on any new information, but rather, a decision by Merck's current counsel that contacting Thomas might be fruitful.

Although Merck may not have been able to discover all the evidence at issue in this claim at the time of trial (particularly that concerning the slumping incident, which Thomas did not remember until after the guilt-phase trial), he could have discovered it at least between the time of the last resentencing and 2014. Because the efforts Merck's current counsel made to contact Thomas could have been made at any time between the time of the last resentencing and 2014, and there is no indication in the record that Thomas would have been less forthcoming if he had been contacted before 2014, a claim based on information discovered from Thomas as a result of the 2014 effort is untimely.

Merits

In any event, this claim also fails on the merits. A newly discovered evidence claim consists of two requirements. First, 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 the defendant or his counsel could not have known [of it] by the use of diligence." Jones v. State , 709 So.2d 512, 521 (Fla. 1998) (quoting Torres-Arboleda v. Dugger , 636 So.2d 1321, 1324-29 (Fla. 1994) ). Second, it "must be of such a nature that it would probably produce an acquittal on retrial." Id. This analysis requires consideration of all newly discovered evidence that would be admissible at a new trial, including evidence presented in other postconviction claims, and an evaluation of the weight of that evidence along with all the evidence that was already admitted at trial. Id. at 521-22.

For the purpose of our analysis, we have broken Merck's claim down into six items of evidence and categorized the items according to whether they concern alleged inaccuracies in Thomas's testimony or a bias or motive for Thomas to testify falsely. We discuss the two groups of items in turn and then address certain evidence from earlier postconviction proceedings on which Merck relies, ultimately concluding that the combined effect of the evidence that could be presented in a new trial would not satisfy the requirements of the newly discovered evidence test.

The evidence related to the accuracy of Thomas's trial testimony consists of the following: (1) that the game of pool was several hours after the crime; (2) Thomas's recollection that Merck was slumped over and unresponsive in the car immediately after the stabbing; and (3) Thomas's current testimony that Merck was more intoxicated than he indicated at trial and, in fact, was "highly intoxicated" or "very, very drunk," was a "lightweight" when it came to drinking alcohol, and may have had more alcohol than Thomas.

The timing of the game of pool is not newly discovered evidence: the pool game was discussed at trial, and Thomas could have been cross-examined about the specific timing then. Therefore, the information Merck relies on now could have been discovered at the time of trial with the exercise of due diligence and cannot support a new claim. See id. at 521.

The remaining items in this category concern information that Thomas has said he remembered after the guilt phase or felt he did not properly convey at trial. However, Thomas's postconviction testimony concerning these points was equivocal, and to the extent it is inconsistent with his trial testimony, it is not so materially inconsistent as to create a reasonable probability of an acquittal of first-degree murder on retrial. See id. (stating the newly discovered evidence test).

When considered together with the remainder of the testimony that Thomas has given throughout this case, which Thomas maintains is true, the incident of Merck's slumping and failing to respond is not as significant as Merck contends it is. Thomas gave three sworn accounts of the incident up to and including the guilt-phase trial, and he never remembered that detail or found it significant enough to reveal, even though he was asked at the end of his pre-trial statements if there was anything else he thought he should mention. When the slumping incident is considered in this context and in light of Thomas's postconviction testimony that he was never intentionally misleading, as well as the postconviction court's finding that Thomas did not testify falsely, it becomes clear that this detail must have been a momentary occurrence, not a significant event reflecting Merck's state of mind during the stabbing.

The other inconsistency concerns Thomas's characterization of Merck's level of intoxication and an acknowledgment that Merck may have had "a little bit more" to drink than Thomas said at trial. However, Thomas did not testify at the postconviction hearing that his testimony concerning the number of drinks Merck consumed was incorrect, and his subjective impression of Merck's level of intoxication is overcome by other, more concrete testimony that he gave, both at trial and during the evidentiary hearing.

Specifically, Thomas confirmed at the evidentiary hearing that, just as he indicated at trial, Merck could not stop talking about the murder after he committed it and was "rather proud of it." He also confirmed that Merck held the bloody knife up and said that if Newton was not dead, he would go to the hospital to finish killing him, and that Merck even compared stabbing the victim to a sexual experience. When asked if he had "changed [his] mind about whether [Merck] would have known what he was doing and remembered what he was doing," Thomas answered, "No. Nothing else is different."

Given that Thomas testified that "[n]othing else is different," his postconviction testimony indicates that Thomas testified accurately about Merck's recounting of the event not only on the night of the stabbing but in the days that followed, showing that Merck remembered it. It also indicates that Merck explained that he made a conscious decision to kill Newton when Newton did not show submission as Merck was advancing toward him. Furthermore, Thomas's testimony at trial concerning Merck's identity as the stabber and his intent to kill were corroborated by other evidence. Not only did Sullivan identify Merck as the attacker, but she also testified that she heard Merck say he was going to teach Newton how to bleed, and another witness heard a similar statement. Additionally, one of the three females who spent time with Merck and Thomas in the weekend after the stabbing testified that Merck recounted the stabbing without prompting from Thomas and took responsibility for it. In consideration of this evidence, we conclude that the slumping incident and Thomas's subjective impression that Merck may have been more intoxicated than Thomas conveyed at trial would not probably produce an acquittal if Merck were to have a new guilt-phase trial.

The remaining items of allegedly newly discovered evidence, those relating to Thomas's alleged bias or motive to testify falsely, are the following: (1) Thomas's acknowledgement that he may have told Merck's postconviction investigator that he was instructed to minimize Merck's level of intoxication; (2) that Thomas was instructed to "stick to" his deposition testimony; and (3) that Thomas was told he would be arrested and held until he testified if he did not appear for Merck's trial. These items do not combine with the previously discussed items to show that Merck would probably be acquitted on a retrial. See Jones , 709 So.2d at 521 (setting forth the newly discovered evidence test). Although Thomas acknowledged that he "may have" said that the prosecutor told him to minimize Merck's level of intoxication, he explained that he was referring to the instruction to "stick to" his deposition testimony, which the postconviction court found was merely an instruction to use that testimony to refresh his memory. Additionally, as indicated in our analysis of Merck's Giglio claim, the threat of arrest amounted to a showing that Thomas was compelled to testify at the trial, not that he was required to testify to a particular set of facts. Therefore, this evidence would not have impeached Thomas significantly.

The impeachment value that Merck might gain from the use of this information in a hypothetical new trial would be overcome by the rehabilitation that would follow. Each of Merck's points concerning Thomas's bias or motive to testify falsely relates to circumstances that arose after Thomas gave his original sworn statement to the police. Therefore, that statement, which was consistent with Thomas's trial testimony, would be used to rehabilitate Thomas in a new trial if Merck's counsel relied on any of the information he recently obtained concerning Thomas's alleged bias and motive to testify falsely. See Chandler v. State , 702 So.2d 186, 197-98 (Fla. 1997) (explaining that prior consistent statements are admissible as substantive evidence if "the person who made the prior consistent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to 'rebut an express or implied charge of ... improper influence, motive, or recent fabrication' ") (quoting Rodriguez v. State , 609 So.2d 493, 500 (Fla. 1992) ); § 90.801(2)(b), Fla. Stat. (2018). Thomas's sworn statement to the police would have the effect not only of rehabilitating him but of bolstering his trial testimony. See Rodriguez , 609 So.2d at 500. Given Thomas's recent testimony confirming the most significant aspects of his trial testimony-and, therefore, showing that he would again confirm them at trial in response to any questions concerning pressure from the State-and the manner in which his prior statement to the police could be used in response to such impeachment, the newly obtained information concerning alleged improper influence by the State does not combine with the remaining items of allegedly newly discovered evidence to establish that Merck would probably be acquitted on retrial. See Jones , 709 So.2d at 521 (stating the newly discovered evidence test).

Finally, Merck requests that, in analyzing the merits of this claim, this Court consider not only the allegedly newly discovered evidence raised in the successive postconviction motion at issue, but also the prior postconviction testimony of Dr. John Brigham, which related to factors that have been shown generally to render eyewitness identification inaccurate or less reliable, as well as specific factors that might have called the reliability of Sullivan's identification of Merck into question. See Swafford v. State , 125 So.3d 760, 775-76 (Fla. 2013). We conclude that the addition of Dr. Brigham's testimony to the trial evidence and the allegedly newly discovered evidence would not probably produce an acquittal on retrial.

For the foregoing reasons, Merck's claim of newly discovered evidence is without merit.

CONCLUSION

Because Merck has failed to show error in the denial of his successive postconviction motion alleging Giglio and Brady violations, as well as a claim of newly discovered evidence, we affirm the order denying that motion.

It is so ordered.

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

      The State contests this Court's jurisdiction because Merck is awaiting resentencing under Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). However, the pending resentencing does not affect our exclusive jurisdiction over this appeal. See Farina v. State , 191 So.3d 454, 455 (Fla. 2016).

      Merck's most recent penalty phase took place in 2004, and the resulting death sentence became final in 2008. Merck v. State (Merck III ), 975 So.2d 1054 (Fla. 2007), cert. denied , 555 U.S. 840, 129 S.Ct. 73, 172 L.Ed.2d 66 (2008). The trial court granted Merck's postconviction motion seeking Hurst relief before ruling on the motion at issue in this appeal. The State voluntarily dismissed its appeal from the order granting Merck Hurst relief.

      Voluntary intoxication was a defense to specific-intent crimes at the time of Merck's trial, see Gardner v. State , 480 So.2d 91, 92 (Fla. 1985), but that defense has since been abrogated by statute. § 775.051, Fla. Stat. (2018) ; ch. 99-174, § 1, Laws of Fla. (creating section 775.051, effective October 1, 1999).

      No witness identified Thomas as the person who stabbed and killed Newton. However, Merck argues now, as he did to the jury, that certain aspects of the eyewitness testimony would point to Thomas as the perpetrator. Although we do not find it necessary to detail this evidence, we have not overlooked it in considering materiality or the probability of an acquittal on retrial.

      The prosecutor whose instruction is in question is deceased.

      Merck insists that this instruction was improper and implies that it was made in bad faith because the deposition was taken only one month before trial. However, Thomas's testimony indicates that he did not understand the difference between his deposition and the statement that was taken under oath in a question-and-answer format on October 14, 1991, just days after the murder. The deposition and the statement were substantively the same, and on at least one occasion during his recent postconviction testimony, Thomas referred to the statement as a deposition. He also suggested at one point that the instruction to rely on his prior testimony may have been given to him before one of Merck's resentencing proceedings, in reference to his original trial testimony.