# Supreme Court of Florida

____________ No. SC17

- 2151

____________ BRETT A. BOGLE, Appellant,

vs. STATE OF FLORIDA, Appellee. December 19, 2019
PER CURIAM.
Brett A. Bogle , a prisoner under sentence of death, appeals the circuit court’s order summarily denying hi s successive motion for postconviction relief

. 1 For the reasons that follow, w e affirm the order. FACTS In 1992, Bogle was convicted of the first

- degree murder of Margaret Torres, burglary with assault or battery, and r etaliation against a witness

. Bogle v. State ( Bogle I ) , 655 So. 2d 1103, 1 1 04

- 05 (Fla. 1995)

. At an initial penalty phase, the jury recommended death by a seven

- to

- five vote , but the trial court granted a new

1 . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.- 2

- penalty phase due to an erroneous admission of evidence

. Id. at 1105

. The trial judge sentenced Bogle to death after the second penalty phase resulted in a jury

recommen dation of death by a ten

- to

- two vote

. Id

. This Court affirmed Bogle’s conviction and sentence on direct appeal , i d . a t 1110 , and Bogle’s death sentence became final in 1995

. 2 This Court also affirmed the denial of Bogle’s initial postconviction motion and denied habeas relief

. Bogle v. State ( Bogle II ) , 213 So. 3d 833, 855 ( Fla. 2017). There were no eyewitnesses to Bo gle’s murder of Torres. Torres was the sister of a woman with whom Bogle had lived, and Bogle and Torres did not get along. Bogle I , 655 So. 2d at 1105. On the night of the murder, Bogle and Torres had been at a bar; Bogle left shortly after Torres. The next day, Torres’s “nude and badly beaten body” was found outside the bar

. Id

. Her head had been “crushed with a piece of cement

. ” Id

. “Additionally, she had semen in her vagina and trauma to her anus consistent with sexual activity that was likel y inflicted before death.” Id

. One of the state’s witnesses at trial was Agent Michael Malone , an FBI lab examiner

. Malone testified that a pubic hair found on Bogle’s pants after the murder “microscopically matched the pubic hairs of Margaret Torres.” Bogle
II , 213 So. 3d at 847. On cross

- examination, Malone acknowledged that “hair comparisons do not constitute a basis for absolute personal identification.” Id

.
2

. Bogle v. Florida , 516 U.S. 978 (1995) (cert. denied).- 3

- U nrelated to Malone’s testimony, expert witnesses testified at trial and at the evidentia ry hearing on Bogle’s first postconviction motion that Bogle’s DNA was consistent with DNA found in Torres’s body and underwear

. Id

. at 838, 846, 851. In 2014, Bogle filed a successive postconviction motion claiming he had newly discovered evidence of Brady 3 and Giglio 4 violations re lated to Agent Malone ’s hair analysis testimony. Specifically, Bogle cited the results of a 2013 federal government review conclud ing that Malo ne’s testimony in Bogle’s case
overstat ed the reliability of microscopic hair comparisons. The successive postconviction motion also alleged that Bogle was entitled to relief under Hurst v.
State , 202 So. 3d 40 ( Fla. 2016) , and under changes to Florida’s capital sentencing statute enacted after Hurst

. In September 2017, the circuit court entered an order summarily denying Bogle’s second amended successive postconviction motion , finding that the newly discovered evidence claim was procedurally barred and t hat Bogle’s Hurst

- related claims lacked merit. This appeal followed. ANALYSIS Summary denial of a successive postconviction motion is appropriate “ [ i ] f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Fla. R. Crim. P. 3.851(f)(5)(B). Applying a de novo

3

. Brady v. Maryland , 373 U.S. 83 (1963). 4

. Giglio v. U nited States , 405 U.S. 150 (1972).- 4

- standard of review, we find that test satisfied here, and we therefore affirm the circuit court’ s summary denial of Bogle’s motion. Brady, Giglio , and Newly Discovered Evidence Claims Bogle ’s successive postconviction motion alleges that the s tate withheld exculpatory evidence about the asserted unreliability of Malone’s testimony (in violation of B rady ) and knowingly presented Malone’s “ false” testimony (in violation of Giglio ). The trial court summarily denied these claims, finding them procedurally barred. We agree. Bogle ’s claims rely on the results of a Department of Justice and FBI review
of cases in which Agent Malone had testi fied about microscopic hair analysis. Released to the s tate in August 2013 and later provided to Bogle, t he review found that Malone’s testimony in Bogle’s case “exceeded the limits of science” in three ways: (1) by st ating or implying that an evidentiary hair could be associated with a specific individual to the exclusion of all others; (2) by assigning a statistical weight or probability to the likelihood that an evidentiary hair originated from a particular source; a nd (3) by citing prior cases to assign a predictive value to bolster the conclusion that an evidentiary hair belong ed to a particular individual.
Th e 2013 DOJ/FBI review is of no help to Bogle here, however, because he cannot use a successive 3.851 motion to litigate issues that he could have raised in his initial postconviction motion. See Fla. R. Crim. P. 3.851(e)(2) ; Schwab v.- 5

- State , 969 So. 2d 318 , 325 (Fla. 2007 ). 5 Bogle was well aware of potential deficiencies in Malone’s testimony long before the 2013 review (which, in any
event, on its face says nothing about what the s tate did or did not know about the reliability of Malone’s testimony)

. In our opinion in Bogle II , for example, we noted that “Bogle

. . . claims that his trial counsel was deficient in failing to demonstrate that the hair comparison in this case was unreliable and flawed.” 213 So. 3d at 847. Relatedly, the record in Bogle’s initial postconviction motion shows that Bogle’s counsel had received notice of the results of a n earlier DOJ review of Malone’s work in Bogle’s case. Th at 1999 review found that the lab reports of Malone’s work w ere not sufficient ly documented to determine whether the work had been done in a scientifically reliable manner. With diligence, Bogle co uld have litigated in his initial postconviction motion the same Brady and Giglio claims that he raises now. To the extent that Bogle asserts a newly discovered evidence claim that is independent of his Brady and Giglio claims, that claim fails as well. To prevail on a newly discovered evidence claim, the defendant must satisfy a two

- prong test: first, the evidence was not at the time of trial known by the trial court, by the party, or by counsel, and the defendant or h is counsel could not have known of it by the

5. Given this conclusion, we need not address whether Bogle’s Brady and Giglio claims are also untimely. See Fla. R. Crim. P. 3.851(d)(2) (setting out limited exceptions to one

- year time limit).- 6

- use of diligence; and second, the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Duckett v. State , 231
So. 3d 393 , 399 ( Fla. 2017) ; Jones v. State , 70 9 So. 2d 512, 521 (Fla. 19 98 ). A court applying the second prong of this test must evaluate the importance of the newly discovered evidence in the broader context of any admissible evidence that could be introduced at a new trial. Duckett , 231 So. 3d at 399. Even if we assume that the 2013 review constitutes “evidence” that did not previously exist (and which Bogle therefore could not have known about or uncovered), Bogle cannot demonstrate that the information in the report would probably produce an acq uittal on retrial. The report does little more than amplify what Malone already acknowledged on cross

- examination at Bogle’s trial: that “hair comparisons do not constitute a basis for absolute personal identification.” Bogle II , 213 So. 3d at 847. And even more importantly, the DNA evidence showing that Bogle ’s semen was in the murder victim ’s body and underwear overwhelms the significance of Malone’s testimony that a pubic hair of the victim was on Bogle’s pants. See Duckett , 231 So. 3d at 399

- 400 (denying a similar newly discovered evidence claim arising out of a 2013 federal government review of Malone’s testimony); Long v. State , 183 So. 3 d 342, 347 (Fla. 2016) (same). The record in this case conclusively refutes Bogle’s newly disc overed evidence claim.- 7

- Hurst Claims Bogle also challenges the summar y deni al of hi s claim that th e Sixth and Eighth Amendments , together with post

- Hurst changes to Florida’s capital sentencing statute, demand full retroactive application of this Court’s d ecision in
Hurst v. State

. Under this Court’s precedents, Hurst relief is not available to defendants, like Bogle, whose death sentences were final prior to the Supreme Court’s decision in Ring v. Arizona , 536 U.S. 584 (2002). This Court ha s repeatedly denied claims similar to Bogle’s, and we decline to revisit our precedents here. See, e.g. , Reese v. State , 261 So. 3d 1246 , 1246

- 47 (Fla. 2019)

. CONCLUSION For the foregoing reasons, w e affirm the postconviction court’s summary denial of Bogle’s second amended successive postconviction motion. It is so ordered. POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur. CANADY, C.J., concurs in result with an opinion

. NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. CANADY, C.J., concurring in result.
I agree that the order summarily denying postconviction relief should be
affirmed . I concur in the denial of Bogle’s Brady , Giglio , and newly discovered evidence claims. I also agree that Bogle is not entitled to relief on his Hurst- 8

- claims. But I would deny the Hurst claims on two grounds. First, I would conclude that no Hurst error occurred in this case. I adhere to the view that Hurst v. Florida , 136 S. Ct. 616 (2016), only requires that the jury find an aggravating circumstance that renders a defendant eligible for a death sentence. See Hurst v.
State , 202 So. 3d 40, 77

- 82 (Fla. 2016) (Canady, J., dissenting), cert. denied , 137 S. Ct. 2161 (201 7). Here, that requirement was satisfied because the jury’s verdict that Bogle had committed “burglary with force

. . . on the victim” and her sister two weeks before the murder established the existence of the prior violent felony aggravator. Bogle v. S tate , 655 So. 2d 1103, 1105 (Fla. 1995). Second, even if
Hurst error were present in this case, I would still deny relief. In my view, Hurst should not be given retroactive application. See Mosley v. State , 209 So. 3d 1248,
1285

- 91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part). An Appeal from the Circuit Court in and for Hillsborough County, Michel le Sisco , Judge

- Case No. 291991CF012952000AHC Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant Ashley M oody, Attorney General, Tallahassee, Florida, and Timothy A. Freeland , Senior Assistant Attorney General, Ta mpa , Florida, for Appellee