Breedlove v. State, 75599

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; SHAW
• Citation: 580 So.2d 605,16 Fla. L. Weekly 371
• Parties: McArthur BREEDLOVE, Appellant, v. STATE of Florida, Appellee. 580 So.2d 605, 16 Fla. L. Week. 371
• Docket Number: No. 75599,75599
• Decision Date: 09 May 1991

Page 605

580 So.2d 605 McArthur BREEDLOVE, Appellant,
v.
STATE of Florida, Appellee. No. 75599.
580 So.2d 605, 16 Fla. L. Week. 371 Supreme Court of Florida. May 9, 1991.
Rehearing Denied June 25, 1991.

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

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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

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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...