State v. Parker, 89469.

• Decision Date: 04 September 1998
• Docket Number: No. 89469.,89469.
• Citation: 721 So.2d 1147
• Parties: STATE of Florida, Appellant/Cross-Appellee, v. J.B. PARKER, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

721 So.2d 1147

STATE of Florida, Appellant/Cross-Appellee, v. J.B. PARKER, Appellee/Cross-Appellant.

No. 89469.

Supreme Court of Florida.

September 4, 1998.

Rehearing Denied December 15, 1998.

Robert A. Butterworth, Attorney General, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellant/Cross-Appellee.

Francis D. Landrey, Mia L. Franklin, and Francine Miller of Proskauer Rose LLP, New York City, for Appellee/Cross-Appellant.

PER CURIAM.

We have before us the State's appeal of the trial court's order granting J.B. Parker's postconviction request for a new penalty phase proceeding. We also have before us Parker's cross-appeal of the trial court's order denying his postconviction request for a new trial. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In this case, the trial court granted relief as to a new penalty phase after finding that the State withheld exculpatory evidence that could have changed, within a reasonable probability, the outcome of Parker's sentence. The trial court denied relief as to a new trial after finding that such evidence would not have resulted in a different verdict in the guilt phase. For the reasons expressed, we affirm the trial court's order. Parker was convicted of kidnaping, robbery with a firearm, and first-degree murder. Briefly, the testimony at trial reflected the following. In 1982, Parker and three other defendants, John Earl Bush, Alphonso Cave, and Terry Wayne Johnson, robbed a convenience store. Money was taken from the store and the female store clerk (the victim) was also taken from the store and placed in Bush's car. The victim was later found dead; she had been shot and stabbed. Death was caused by a gunshot wound to the back of the head. Bush's girlfriend testified that Parker had admitted to her that he shot the victim and that Bush had stabbed her. The girlfriend's mother and sister testified that she told them of Parker's confession. Parker's pre-trial statements to police regarding the crime were also introduced and Parker also testified at trial. In those statements, he implicated himself in the crimes but denied being the shooter.

Parker was sentenced to death for the first-degree murder conviction, following an eight-to-four jury recommendation.¹ The facts of this case are set forth in more detail in Parker v. State, 476 So.2d 134 (Fla.1985) (Parker I).

In Parker I, we addressed a number of issues. Specifically pertinent here, we reviewed the testimony of the mother and sister of Bush's girlfriend. We found that their testimony was inadmissible hearsay; however, we concluded that the admission of this testimony constituted harmless error.

Parker's codefendants were each tried separately. Bush and Cave each received the death penalty.² Johnson was sentenced to life in prison.

Following the direct appeal, Parker filed Florida Rule of Criminal Procedure 3.850 motions with the trial court, which were denied, and petitions for writs of habeas corpus with this Court. In Parker v. State, 542 So.2d 356 (Fla.1989) (Parker II), and Parker v. State, 550 So.2d 459 (Fla.1989) (Parker III), we affirmed the trial court's denial of the 3.850 motions and denied the habeas petitions.

After this Court denied relief, Parker filed a petition for writ of habeas corpus in federal district court, which was denied. On appeal, the United States Eleventh Circuit Court of Appeals affirmed that denial of Parker's habeas petition in Parker v. Singletary, 974 F.2d 1562 (11th Cir.1992) (Parker IV). The Eleventh Circuit determined that Parker's first statements to law enforcement officers, which implicated him in these crimes, were inadmissible. Specifically, the court found that Parker did not knowingly and intelligently waive his right to conflict-free counsel and that the only counsel present at the time the statements were given was an intern sent by the public defender's office, which had already determined it could not represent Parker because of a conflict. Nevertheless, the Court affirmed the district court's denial of the habeas corpus petition because it found the error to be harmless given that other statements made by Parker and other testimony supported at least a finding of felony murder. The Court also found that, given the uncertainty of the evidence, Parker's due process rights were not violated by the State's having argued in the codefendants' cases that they, rather than Parker, were the shooters.³ In 1993, codefendant Cave received a new sentencing proceeding. During that resentencing proceeding, the State introduced testimony from a witness, Michael Bryant, who was in jail with codefendants Cave and Bush prior to the trial in this case. Bryant testified at Cave's resentencing that he shared a cell with Cave and that Bush was two cells away. Bryant related the following regarding the conversation he overheard between the two:

And Bush told Cave, says, we wouldn't never been in here if you didn't try to burn her with a cigarette butt. He said, well, you stabbed her in the stomach. And Bush told Cave, he says, well, you popped a cap in the back of her head.

Later Cave told Bryant that if he told anyone about what he overheard he would see that Bryant was "taken care of." Bryant said he would not tell anyone, but Cave apparently did not believe him, and Cave beat Bryant, sending him to the hospital. Bryant said that when he reported the assault to Lieutenant Art Jackson, Bryant told him of the conversation between Bush and Cave.

Lieutenant Jackson also testified at Cave's resentencing. He confirmed that Bryant had related the conversation to him. He also stated that Bryant told him what Cave said. Bryant told him that Cave said they stabbed the victim and then Cave got sick of hearing her holler, so he shot her. Lieutenant Jackson further testified that he heard Cave threaten Bryant when he was escorting Cave from the cell to Lieutenant Jackson's office for questioning (Cave told Bryant "if he would tell what had happened that he would do more to him."). Lieutenant Jackson stated that he did not include Cave's admission regarding the murder in his report on the battery because it was not relevant to his investigation.

None of this information had ever been disclosed to Parker. Based on the discovery of Bryant's testimony upon Cave's resentencing, Parker filed a rule 3.850 motion alleging that he had discovered material exculpatory information that would have changed, within a reasonable probability, the outcome of his trial. The trial court granted an evidentiary hearing on the issue.

After the hearing, the trial judge granted a new penalty phase proceeding. He found that the State knew of this testimony but never listed Bryant as a witness; that the State failed to provide the information to Parker; that the information was favorable to Parker; that neither Parker nor his attorney could have obtained the information through due diligence; that the testimony would have been admissible in both the guilt and penalty portions of Parker's trial; that the omission of the information was harmless as to guilt given the Eleventh Circuit's finding that Parker was guilty of first-degree felony murder; but that the admission of the information probably would have changed the outcome of the penalty phase, especially since the Eleventh Circuit had found certain of Parker's own statements implicating him in the crime to have been inadmissible.

The State has appealed the trial court's determination that a new penalty phase proceeding is warranted; Parker has cross-appealed the determination that no new trial is warranted.

State's Appeal

In appealing the trial court's decision to grant a new penalty phase, the State concedes that it erroneously failed to disclose Bryant's statements to Parker. It contends, however, that even if those statements had been disclosed, the statements would not have been material and would not have affected the outcome of Parker's penalty phase proceeding.

This issue is controlled by the United States Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. To obtain relief under Brady, Parker must establish that: (1) the State possessed evidence favorable to his case; (2) he did not possess the evidence nor could he have obtained it through reasonable diligence; (3) the State suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different had the evidence been disclosed. State v. Buenoano, 707 So.2d 714 (Fla.1998); Mills v. State, 684 So.2d 801 (Fla.1996). In this case, as noted above, the State concedes that it knew of Bryant's statements but failed to disclose Bryant's statements to Parker. It also concedes that Parker could not have obtained this information through any reasonable diligence. Thus, the only issue is whether a reasonable probability exists that the outcome of Parker's penalty phase proceeding would have been different had the evidence been disclosed.

Under United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), a "reasonable probability" is a probability that is sufficient to undermine confidence in the outcome of the proceeding. See also Buenoano; Gorham v. State, 597 So.2d 782 (Fla.1992)

. Stated otherwise, if the favorable evidence suppressed by the State "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," then Parker is entitled to relief. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

In Parker's guilt and penalty phase proceedings, the State contended that he was the shooter of the victim in this case. Although the victim was stabbed, it is uncontested that the victim died from the gunshot wound. However, the only direct evidence to show that Parker was the shooter was the testimony of Bush's girlfriend. She contended that Parker...