Routly v. State, 73963

• Decision Date: 17 October 1991
• Docket Number: No. 73963,73963
• Citation: 590 So.2d 397
• Parties: 17 Fla. L. Weekly S16 Dan Edward ROUTLY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 397

590 So.2d 397

17 Fla. L. Weekly S16

Dan Edward ROUTLY, Appellant, v. STATE of Florida, Appellee.

No. 73963.

Supreme Court of Florida.

Oct. 17, 1991.

Rehearing Denied Jan. 2, 1992.

Larry Helm Spalding, Capital Collateral Representative and Martin J. McClain, Chief Asst. CCR, Office of Capital Collateral Representative, Tallahassee, for appellant.

Dan Edward Routly, in pro. per.

Robert A. Butterworth, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Dan Edward Routly, a prisoner under sentence of death, sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After an evidentiary hearing, the circuit court denied relief. Routly appeals. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const.

In 1979, Routly and Colleen O'Brien traveled from Michigan and settled in Ocala. Domestic difficulties arose, and O'Brien left Routly. She met Anthony Bockini, a retired resident of the community, who offered her assistance. O'Brien returned to Routly but the next day telephoned Bockini and asked him to come and pick her up. She stayed overnight at Bockini's house, but she returned to Routly the next day. O'Brien left Routly again several days later. She returned to Bockini's house and made plans to return to Michigan.

Routly went to Bockini's house in an attempt to reconcile with O'Brien. Bockini was away but returned while Routly was still there. Routly pulled a gun on him, bound his hands and feet, ransacked his house looking for money and valuables, and took money from his wallet. Routly loaded Bockini into the trunk of Bockini's car and he and O'Brien went out purportedly looking for a place to let Bockini out. The taillights on the car malfunctioned as a result of Bockini's efforts to escape. Routly stopped the car, shot Bockini three times, and dragged the body under some bushes.

O'Brien was arrested later that year in Michigan. She implicated Routly in the murder. Routly was taken into custody in Michigan. He confessed and waived extradition to Florida. He was convicted of first-degree murder. The trial court overrode the jury's recommendation of life imprisonment and imposed the death penalty, finding five aggravating and no mitigating circumstances. ¹ This Court affirmed the conviction and the death sentence on direct appeal, Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984), and denied a subsequent petition for habeas relief. Routly v. Wainwright, 502 So.2d 901 (Fla.1987).

In his first claim in this appeal, ² Routly asserts that the State suppressed critical exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence relates to Colleen O'Brien, who was the State's key witness. Routly claims that the State did not disclose the following items: O'Brien's written immunity contract; a letter from O'Brien stating that she refused to give any information that could relate to prosecution of her except under contract of immunity; and the affidavit of a Michigan police officer detailing his difficulty in locating O'Brien and indicating that O'Brien was afraid that she would be charged with the murder and that Routly would say that she committed the murder alone. Routly's trial counsel testified at the evidentiary hearing that he was not provided with or aware of these documents at the time of trial, and that the documents would have allowed him to cross-examine O'Brien more extensively and show her interest, bias, or prejudice.

The prosecution must disclose evidence favorable to the accused if the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194. In order to establish a Brady violation, one must prove: (1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant did not possess the evidence, nor could he obtain it with any reasonable diligence; (3) that the prosecution suppressed the evidence; and (4) that had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different. Hegwood v. State, 575 So.2d 170, 172 (Fla.1991) (citing United States v. Meros, 866 F.2d 1304 (11th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989)).

We do not find a Brady violation under the facts of this case. Defense counsel was aware prior to trial that O'Brien had received a written immunity agreement in exchange for her testimony. She told him so in her deposition approximately five days before trial. Defense counsel cross-examined O'Brien on the immunity agreement at trial. From that cross-examination the jury learned that O'Brien was given a written contract of immunity in exchange for her testimony; that by receiving immunity she would be able to have a life with her baby, which meant "everything" to her; that the State paid for her transportation to Florida to testify; that she was threatened with arrest if she did not testify; and that she presently was in the custody of law enforcement officers. Defense counsel told the jury during his opening statement that O'Brien had been charged with murder in this case and that she had been granted immunity. In closing argument, counsel reminded the jury of O'Brien's reluctance to testify; that she had been granted immunity; and that the immunity gave her a life with her baby, which meant more than anything in the world to her.

Upon our review of the record, we find no reasonable probability that had this evidence been disclosed, the outcome of the trial would have been different. At most, the documents at issue would have allowed for cumulative impeachment of O'Brien. They would not have revealed any material information to the jury that was not disclosed in cross-examination. See Aldridge v. State, 503 So.2d 1257 (Fla.1987) (failure to disclose memo did not violate Brady where memo would not have conveyed any information to the jury not already revealed by examination and cross-examination); Palmes v. Wainwright, 460 So.2d 362 (Fla.1984) (failure to disclose that State granted witness immunity, promised her special assistance, and induced her testimony by threatening to deprive her of custody of her child not material where defense had full opportunity to impeach witness on immunity and information would have added only marginally to impeachment).

In his second claim, Routly asserts that the prosecutor knowingly allowed O'Brien to commit perjury at deposition and trial and failed to correct material false statements in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Under those cases, the prosecutor has a duty to correct testimony he or she knows is false when a witness conceals bias against the defendant through that false testimony. United States v. Meros, 866 F.2d at 1309. If there is a reasonable probability that the false evidence may have affected the judgment of the jury, a new trial is required. Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). "The thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony, and that the prosecutor not fraudulently conceal such facts from the jury." Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983).

To establish a Giglio violation, Routly must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989).

Routly cites several instances in which O'Brien allegedly gave false testimony. O'Brien testified on cross-examination that she did not know whether she was free to go back to where she resided. Routly argues that, in fact, she was not free to leave until she finished her obligations under the immunity contract. Equivocal testimony such as this does not constitute false testimony for purposes of Giglio. See United States v. Petrillo, 821 F.2d 85, 89 (2d Cir.1987). When asked on cross-examination what she was granted in exchange for her testimony, O'Brien responded, "Immunity." Further, she testified that in exchange for her testimony, she would be able to have a life with her baby. Routly argues that these statements were false because the immunity agreement contained various other promises and provisions that O'Brien did not identify. O'Brien's failure to detail every provision of her immunity agreement in response to these questions does not constitute false testimony. Further, in view of the entirety of O'Brien's testimony, we find no reasonable probability that the failure to discuss other details of her immunity agreement affected the jury's judgment.

Routly also argues that the prosecutor should have corrected O'Brien when she denied in deposition and at trial that she had been charged with Bockini's murder. In fact, a warrant charging her with second-degree murder was issued shortly before trial. ³ We do not believe that this amounts to a Giglio violation. The prosecutor testified at the evidentiary hearing that although he had filed an information shortly before trial charging O'Brien with second-degree murder, she was not arrested on the warrant, and he believed that she did not know of its existence. O'Brien testified at the evidentiary hearing that she did not know that there was an arrest warrant out for her at the time. Further, our review of the record convinces us that the jury was not misled about O'Brien's status. The jury was aware of O'Brien's situation and could test her credibility in light of her threatened position. See Smith v. Kemp, 715 F.2d...