Geralds v. State

• Decision Date: 08 April 2013
• Docket Number: Nos. SC06–761,SC07–716.,s. SC06–761
• Court: Florida Supreme Court
• Parties: Mark Allen GERALDS, Appellant, v. STATE of Florida, Appellee. Mark Allen Geralds, Petitioner, v. Walter A. McNeil, etc., Respondent.

111 So.3d 778

Mark Allen GERALDS, Appellant,

v.STATE of Florida, Appellee.

Mark Allen Geralds, Petitioner,

v.Walter A. McNeil, etc., Respondent.

Nos. SC06–761, SC07–716.

Supreme Court of Florida.

Sept. 16, 2010.

As Revised on Denial of Rehearing Feb. 2, 2012.

Rehearing Denied April 8, 2013.

Linda McDermott of McClain and McDermott, P.A., Estero, FL, for Appellant/Petitioner.

Bill McCollum, Attorney General, Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Mark Allen Geralds appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. Seeart. V, § 3(b)(1), (9), Fla. Const. For the reasonsexplained below, we affirm the circuit court's decision denying relief and deny the petition for writ of habeas corpus.

I. PROCEEDINGS TO DATE

Geralds was convicted and sentenced to death in February 1990 for the first-degree murder of Tressa Lynn Pettibone. Geralds v. State ( Geralds I ), 601 So.2d 1157, 1158 (Fla.1992). On appeal, we affirmed Geralds' conviction but, due to trial court errors, remanded for resentencing and a new penalty phase hearing. Id.¹ After the new penalty phase hearing, the jury unanimously recommended death. Geralds v. State ( Geralds II ), 674 So.2d 96, 98 (Fla.1996). At sentencing, the trial court found three aggravating factors: (1) the murder was committed during the commission of a robbery or burglary or both; ² (2) the murder was especially heinous, atrocious, or cruel (HAC); ³ and (3) the murder was committed in a cold, calculated, and premeditated (CCP) manner without any pretense of moral or legal justification.⁴ The court found the statutory mitigator of age ⁵ but afforded it little weight. The defendant was twenty-two years old at the time of the offense. As for nonstatutory mitigation, the trial court found the following but gave them “very little weight”: (1) the defendant's love and concern for his daughter and former wife; (2) the defendant came from a divorced family and was unloved by his mother; and (3) the defendant's antisocial behavior and bipolar manic personality. The trial court determined that the aggravating factors outweighed the mitigating factors and sentenced Geralds to death. On appeal, Geralds raised ten claims. ⁶ This Court found the application of the CCP aggravating factor was error, but concluded that the error was harmless. Accordingly, we affirmed the death sentence. Id. at 103–04. The United States Supreme Court subsequently denied Geralds' petition for writ of certiorari. See Geralds v. Florida, 519 U.S. 891, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996).

In September 1997, Geralds filed his original postconviction motion. In January 2002, Geralds amended his motion, raising twenty-six claims.⁷ In February 2003, after a Huff⁸ hearing, the circuit court summarily denied claims 1, 3, 4 (in part), 5, 7, 8 (in part), 9, 10, 11 (in part), 12 (in part), and 13–26. An evidentiary hearing was granted on claims 2, 4 (in part), 6, 8 (in part), 11 (in part) and 12 (in part). Geralds filed a supplement to his postconviction motion in July 2004, and a second supplement in July 2005.⁹ Both supplements were summarily denied. In January 2006, after evidentiary hearings, the circuit court filed a final order denying Geralds' postconviction motion. This appeal follows.

II. POSTCONVICTION APPEAL

Geralds challenges the circuit court's denial of his postconviction motion on several bases. He argues that the circuit court erroneously denied his claims regarding: (A) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), violations; (B) ineffective assistance of counsel during the guilt and penalty phases; (C) newly discovered evidence of a conflict of interest; (D) some summarily denied claims; (E) a motion to depose a suspect; (F) access to files and records; and (G) the constitutionality of execution by lethal injection. We address each argument in turn below.

A. BRADY/GIGLIO CLAIMS

Geralds argues that the circuit court erred in denying his claim that the State violated Brady when it failed to disclose various reports and information, and Giglio when it presented false and misleading testimony. The State argues that the circuit court correctly held that in every instance Geralds either did not establish that the State failed to disclose the evidence or, assuming that the evidence had not been disclosed, Geralds did not establish that he had been prejudiced.

Geralds raises seven Brady claims, which will be addressed first. Geralds also raises five Giglio claims, which will be addressed second.

1. Brady Claims

Claims that the State withheld evidence from the defense are governed by Brady. Under Brady, the State must disclose material information within its possession or control that is favorable to the defense. Mordenti v. State, 894 So.2d 161, 168 (Fla.2004). To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence—either exculpatory or impeaching, (2) was willfullyor inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. Strickler, 527 U.S. at 289, 119 S.Ct. 1936. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Way, 760 So.2d at 913;see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. The determination of whether a Brady violation has occurred is subject to independent appellate review. Davis v. State, 928 So.2d 1089, 1113 (Fla.2005). Giving deference to the circuit court on questions of fact, this Court reviews de novo the application of the law and independently reviews the cumulative effect of suppressed evidence. See Mordenti, 894 So.2d at 169;Way, 760 So.2d at 913.

a. First Brady Claim

As Geralds' first Brady claim, he argues that the State suppressed a two-page handwritten list with descriptions of jewelry that were missing from the victim's home.¹⁰ Geralds argues that this list makes clear that the herringbone necklace described in the list was not the necklace that was recovered from a pawn shop.¹¹ The circuit court denied this claim, holding that Geralds failed to establish that the list was not contained in the State's supplemental response to demand for discovery, which references 543 pages of investigative material being provided to Geralds on June 1, 1989. We agree.

At the evidentiary hearing, Joe Grammer testified that he was one of the assistant state attorneys involved in Geralds' murder prosecution and was responsible for providing discovery. Grammer testified that on June 1, 1989, the State filed a supplemental response to demand for discovery containing approximately 543 pages of investigative material. Grammer further testified that he found a copy of the two-page handwritten list in the State's supplemental response. Geralds does not identify any portion of the record that contradicts Grammer's testimony. Thus, the record indicates that Geralds had possession of this list. “[A] Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant.” Occhicone v. State, 768 So.2d 1037, 1042 (Fla.2000). Accordingly, we hold that Geralds has failed to establish that the circuit court erred in denying this Brady claim.

b. Second Brady Claim

As Geralds' second Brady claim, he argues that the State suppressed an eight-page report, dated April 3, 1989, written by Shirley Zeigler, a crime laboratory analyst for the Florida Department of Law Enforcement (FDLE).¹² Geralds argues that this report is exculpatory for two reasons: (1) Zeigler's test results indicated that the blood on a handkerchief discovered at the crime scene did not belong to Geralds or the victim, thus strengthening Geralds' defense that someone else committed the crime; and (2) Zeigler's test results indicated that there was no blood on Geralds' sneakers, which contradicts crime scene analyst Laura Rousseau's testimony during Geralds' guilt phase that the sneakers tested positive for blood. The circuit court denied this claim, holding that Geralds failed to establish that the report was not included in the discovery provided by the State on April 14, 1989. We agree.

At best, Geralds has only demonstrated that the record is ambiguous as to whether Zeigler's report was disclosed. He has not, however, carried his burden of demonstrating that the State suppressed Zeigler's report. In reviewing the State's discovery produced on April 14, 1989, it is not clear whether Zeigler's report was included. Although Zeigler is listed as a person known to have information that may be relevant, Zeigler's report is not specifically identified. At the evidentiary hearing on September 23, 2003, Grammer testified, “I'm absolutely positive that [defense counsel] Bob Adams had this report before he talked to Shirley Zeigler in preparation for the trial.” However, at the evidentiary hearing on February 25, 2004, Grammer testified that he did “not have a clear memory” of providing the report to the defense, but believed that “if we got it, which we did, we shared it with Bob.” In looking at his file marked “lab reports,” Grammer found Zeigler's report. Grammer further testified that the report is the type of document that he would have provided to the defense and that it was possible that if the State did...