684 F.3d 1088 (11th Cir. 2012), 10-15306, Trepal v. Secretary, Florida Dept. of Corrections

Docket Nº:10-15306.
Citation:684 F.3d 1088
Opinion Judge:HULL, Circuit Judge:
Party Name:George James TREPAL, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
Attorney:Todd Gerald Scher (Court-Appointed), Law Office of Todd G. Scher, P.L., Dania Beach, FL, for Petitioner-Appellant. Carol Marie Dittmar, Atty. General's Office, Tampa, FL, for Respondent-Appellee.
Judge Panel:Before CARNES, HULL and PRYOR, Circuit Judges. PRYOR, Circuit Judge, concurring:
Case Date:June 19, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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684 F.3d 1088 (11th Cir. 2012)

George James TREPAL, Petitioner-Appellant,



No. 10-15306.

United States Court of Appeals, Eleventh Circuit.

June 19, 2012

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[Copyrighted Material Omitted]

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Todd Gerald Scher (Court-Appointed), Law Office of Todd G. Scher, P.L., Dania Beach, FL, for Petitioner-Appellant.

Carol Marie Dittmar, Atty. General's Office, Tampa, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, HULL and PRYOR, Circuit Judges.

HULL, Circuit Judge:

Florida death row inmate George James Trepal appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After review and oral argument, we affirm.


A. Overview

In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member,1 of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr's family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs' home.

Trepal's trial lasted a month, with more than 70 witnesses together providing overwhelming evidence of Trepal's guilt. For example, several independent witnesses chronicled Trepal's long-running conflicts with and animosity toward the Carr family. Evidence established Trepal's extensive knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the

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victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims' home, and (3) thallium was found in a brown bottle in Trepal's garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.

Trepal's case would be long over but for the fact that in 1997, six years after Trepal's trial, the Office of the Inspector General of the United States Department of Justice (" OIG" ) issued a report (the " OIG Report" ) that was critical of certain work performed by Roger Martz, a Special Agent in the Chemistry-Toxicology Unit of the FBI Laboratory, who testified against Trepal. After other witnesses had established independently that thallium was found in Trepal's garage and was put in Coca-Cola bottles to poison the victims, Agent Martz went further and tried to identify the particular chemical form of thallium that was found in Trepal's garage and in three unopened Coca-Cola bottles in the victims' home.

Trepal filed a state postconviction motion alleging that certain parts of Martz's trial testimony were false and thus Trepal was entitled to a new trial under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The state court denied Trepal's motion, finding that although some of Martz's trial testimony was false, it did not prejudice Trepal enough to warrant a new trial, given the strength of the unchallenged portions of Martz's testimony, other experts' unchallenged testimony, and all the other trial evidence of Trepal's guilt. The Florida Supreme Court affirmed.

Trepal filed his § 2254 petition, which the district court denied. A certificate of appealability (" COA" ) was granted on Trepal's Giglio claim. As explained later, this case presents many thorny issues about Trepal's Giglio claim, such as the appropriate level of deference due the Florida Supreme Court's denial of the claim, whether Martz's testimony was false, whether Martz's testimony can be imputed to the state prosecutor, and whether any false testimony was material under Giglio. Although we identify and discuss the issues to some extent, we ultimately need not decide them because even assuming arguendo that Trepal has shown a Giglio error, Trepal has not suffered the requisite actual prejudice and thus any Giglio error was harmless. To show why Trepal was not prejudiced, we outline in depth the evidence presented at trial and in state postconviction proceedings.

B. The Poisonings

Trepal and his wife, Dr. Diana Carr, lived in Alturas, Florida, on property adjoining the home of victim Peggy Carr and her husband Parearlyn " Pye" Carr.2 The two homes— Pye Carr's and Trepal's— were located amid orange groves and were very isolated. The next nearest neighbors were about a quarter-mile away.

In June 1988, Pye Carr received an anonymous letter stating, " You and all your so-called family have two weeks to move out of Florida forever or else you will all die. This is no joke." The letter was postmarked in nearby Bartow, Florida. Even though Pye's home was in Alturas,

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the letter correctly listed Pye's mailing address as being in Bartow, Florida. Pye's and Trepal's homes, both in Alturas, had Bartow mailing addresses because they got their mail on the Bartow post office route. Trepal would know this fact.

On October 23, 1988, Peggy Carr began to show symptoms of an unknown illness, including nausea, pain in her chest and extremities, and difficulty breathing. She was admitted to Bartow Memorial Hospital the next day and stayed for three days. Back at home, Peggy's symptoms worsened, and the children in the Carr home, Travis and Duane, began to show similar symptoms. On October 30, 1988, Peggy, Travis, and Duane were admitted to Winter Haven Hospital.3

Treating neurologist Dr. Richard Hostler suspected thallium poisoning. 4 Within 24 hours, lab tests confirmed the presence of thallium in Peggy's tissues.

Despite treatment, Peggy Carr's condition deteriorated, and within a week she lapsed into a coma from which she never awoke. She died on March 3, 1989.

Duane remained hospitalized for two months and Travis for six months, but both eventually recovered. Tests revealed the presence of thallium not only in Travis and Duane, but also in Pye, his daughter Gelena, and his granddaughter Kasey, who also lived with Pye and Peggy.5

C. The Investigation

Following the thallium poisoning diagnosis, the Polk County Sheriff's Office and other governmental agencies searched for the source of the Carrs' exposure. Representatives of the Polk County Health Department, the Florida Department of Health and Rehabilitative Services (" HRS" ), and the EPA searched the Carrs' home.6

At the Carrs' home, investigators recovered an 8-pack of 16-ounce glass Coca-Cola bottles from the kitchen. Three bottles were full and four were empty. 7 The HRS and FBI Laboratories tested and found thallium in the three full bottles and thallium residue in the four empty bottles. The bottle caps from the three full bottles showed evidence of having been removed by a small tool and then placed back onto the bottles with a press or capping device. The investigation became a criminal one.

In December 1988, investigators interviewed Trepal. When asked why anyone would want to poison the Carrs, Trepal said that perhaps someone wanted them to move out of their home. Investigators found Trepal's response eerily similar to

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the threatening letter. Police later learned Trepal had a college degree in chemistry and in the 1970s was the chemist of a methamphetamine laboratory, for which he served two and a half years in federal prison. Local police began an undercover investigation of Trepal that lasted more than a year.

On December 12, 1989, investigators searched Trepal's home. They found a small brown bottle in the drawer of a workbench in his garage. The bottle contained a white powder that was tested and found to contain thallium.

Trepal was arrested. On April 5, 1990, Trepal was indicted on one count of first-degree murder, six counts of attempted first-degree murder, seven counts of poisoning food or water, and one count of tampering with a consumer product.

D. Trial Evidence

Trepal's trial ran from January 7 to February 7, 1991. In the guilt phase, the State called more than 70 witnesses. Trepal's three attorneys— J. Wofford Stidham, Jonathan Stidham, and Dabney Conner— called no witnesses, relying on the evidence elicited during cross-examination.

Below we set forth in more detail the trial evidence by which the State connected Trepal to the Carr poisonings, divided into these topics: (1) Trepal's suspicious police interview and the ensuing undercover investigation of Trepal, including the " Mensa murder weekend" event Trepal hosted; (2) the searches of Trepal's homes, in which police discovered Trepal's chemistry equipment, poison journal, poisonous chemicals, and the bottle of thallium; (3) Trepal's chemistry and criminal background; (4) Trepal's history of animosity toward the Carrs; (5) Florida HRS's testing of the empty Coca-Cola bottles; (6) expert Havekost's testing at the FBI Lab; (7) Martz's testimony; and (8) testing by the Coca-Cola corporate laboratory.

1. Trepal's Suspicious Interview and Ensuing Undercover Investigation

Detective Ernest Mincey of the Polk County Sheriff's Office led the investigation and the interview of Trepal that put him on the police's radar. In his interview, which took place on December 22, 1988, Trepal looked very nervous. Trepal told Detective Mincey and FBI Agent Brad Brekke that he was a self-employed computer programmer and technical writer and he knew nothing of thallium.

When asked why someone might want to poison the Carr family, Trepal said perhaps someone wanted...

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