Breedlove v. State

Decision Date09 May 1991
Docket NumberNo. 75599,75599
PartiesMcArthur BREEDLOVE, Appellant, v. STATE of Florida, Appellee. 580 So.2d 605, 16 Fla. L. Week. 371
CourtFlorida Supreme Court

Bennett H. Brummer, Public Defender and Elliot H. Scherker, Assistant Public Defender, Eleventh Judicial Circuit, Miami, for appellant.

Robert A. Butterworth and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

McArthur Breedlove appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.; Fla.R.Crim.P. 3.850. We hold that the trial court did not err in refusing to conduct an evidentiary hearing and affirm the denial of relief.

In 1979 a jury convicted Breedlove of killing a man during a residential burglary and recommended that he be sentenced to death, which the trial court did. At trial Breedlove moved to suppress statements he made to detectives Ojeda and Zatrepalek on November 9, 1978 and to Zatrepalek on November 21, claiming that he had been beaten on the 9th and threatened with another beating on the 21st. The trial court held a hearing on the motion to suppress and found that Breedlove had confessed freely and voluntarily. This Court affirmed Breedlove's conviction and sentence in March 1982. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

In July 1981 the federal government indicted Ojeda and several other police officers for violating the federal racketeering influenced and corrupt organizations statute. Zatrepalek, in exchange for a bargained guilty plea and a promise of immunity, testified against his fellow officers at their 1982 trial. 1 Breedlove filed this 3.850 motion late in 1982, claiming in the second issue 2 that Ojeda and Zatrepalek had been involved in a drug conspiracy and had used cocaine themselves, that their illegal activities could have been used to impeach their testimony, and that the prosecution's failure to disclose this evidence violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After the governor signed Breedlove's death warrant in 1983, the trial court stayed his execution pending resolution of the 3.850 motion.

Between 1984 and 1989 the prosecution received and turned over to the trial court numerous confidential police files dealing with an internal affairs investigation of several police officers. The court inspected the confidential files and, in January 1990, denied the 3.850 motion without an evidentiary hearing. The trial court did not let Breedlove see those files, but, after oral argument, this Court allowed him access to them. Both sides have now filed supplemental briefs.

In Brady the Court stated that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-97. To demonstrate a Brady violation, a defendant must show "(1) that the prosecution suppressed evidence (2) that was favorable to him or exulpatory and (3) that the evidence was material." Delap v. Dugger, 890 F.2d 285, 298 (11th Cir.1989) (emphasis added), cert. denied, --- U.S. ----, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990). "Impeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985).

Breedlove alleges that (1) Zatrepalek and Ojeda knew of their own criminal activities; (2) an assistant state attorney and a police officer knew of Ojeda's using cocaine; and (3) Zatrepalek and Ojeda knew that they were being investigated by the internal affairs division. According to Breedlove, knowledge of this information should be imputed to the prosecution, which should be found to have suppressed the information. We agree with the trial court that an evidentiary hearing is not required because, even if assumed to be true, the facts alleged do not form a basis for relief.

This Court has previously stated that "the state may not withhold favorable evidence in the hands of the police, who work closely with the prosecutor." Arango v. State, 467 So.2d 692, 693 (Fla.), vacated on other grounds, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985). The detectives' personal knowledge of their criminal activities, however, was not readily available to the prosecution. Their right not to incriminate themselves protected them from having to disclose their actions to the prosecution. See Wallace v. State, 41 Fla. 547, 26 So. 713 (1899). Thus, the prosecution cannot be held to have had constructive notice of the detectives' crimes.

The same holds true for Breedlove's claims that an assistant state attorney and a police officer asserted that they had seen Ojeda using cocaine and that Ojeda and Zatrepalek must have known that they were being investigated by internal affairs. As noted by the trial court, the internal review files do not support the prosecution's having any knowledge of the detectives' criminal activities at the time of Breedlove's trial. Furthermore, at Ojeda's trial Zatrepalek testified that he did not know he was being investigated until November 1979, well after Breedlove's trial, 3 and an informant who testified that Ojeda knew of an investigation could not say when Ojeda acquired that knowledge. Again, as noted by the trial court, the confidential internal review files do not show that Zatrepalek and Ojeda were being investigated at the time of Breedlove's trial.

Thus, there is no support for Breedlove's claim that the prosecution knew, either actively or constructively, of Ojeda and Zatrepalek's criminal activities. This Court has repeatedly observed that " '[i]n the absence of actual suppression of evidence favorable to an accused ... the state does not violate due process in denying discovery.' " Delap v. State, 505 So.2d 1321, 1323 (Fla.1987) (quoting James v. State, 453 So.2d 786, 790 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984)). Breedlove has not met the first part of the Brady rule because he has not demonstrated that the prosecution "suppressed" evidence.

Even if we were to assume that the prosecution had knowledge of these facts and failed to disclose them, we would find that Breedlove has not established a Brady violation. Brady states that suppressed evidence must be "material." 373 U.S. at 87, 83 S.Ct. at 1196-97. Since Brady, the Court has discussed materiality several times: "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (emphasis added). Therefore, "evidence 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." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (emphasis added). The Court defined "reasonable probability" in Bagley as "a probability sufficient to undermine confidence in the outcome." Id.

Breedlove argues that evidence of the detectives' criminal activities could have been used to show their bias in testifying for the prosecution in order to gain more favorable treatment if and when the state proceeded against them. According to Breedlove, therefore, evidence that they were committing crimes and were being investigated was both admissible and material. We, however, agree with the trial court's conclusion that there is no reasonable probability that evidence of the detectives' criminal activities would have changed the outcome of Breedlove's trial because such evidence would not have been admissible and, therefore, is not "material." See Delap, 890 F.2d at 298-99.

A witness can be impeached by, among other things, showing that the witness is biased or by proving that the witness has been convicted of a crime. 4 Secs. 90.608(1)(b), 90.610(1), Fla.Stat. (1989). While defense witnesses may be impeached only by proof of convictions, the rule regarding prosecution witnesses has been expanded. Thus this Court has stated: " '[I]t is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination[.]' " Fulton v. State, 335 So.2d 280, 283-84 (Fla.1976) (quoting Morrell v. State, 297 So.2d 579, 580 (Fla. 1st DCA 1974)). The Morrell court explained that such expansion is needed

so that the jury will be fully apprised as to the witness' possible motive or self-interest with respect to the testimony he gives. Testimony given in a criminal case by a witness who himself is under actual or threatened criminal investigation or charges may well be biased in favor of the State without the knowledge of such bias by the police or prosecutor because the witness may seek to curry their favor with respect to his own legal difficulties by furnishing biased testimony favorable to the State.

The constitutional right to confront one's accuser is meaningless if a person charged with wrongdoing is not afforded the opportunity to make a record from which he could argue to the jury that the evidence against him comes from witnesses whose credibility is suspect because they themselves may be subjected to criminal charges if they fail to "cooperate" with the authorities.

297 So.2d at 580.

This reasoning has been generally accepted when a state witness has been charged with a crime. E.g., Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.) ("When charges are...

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