# Supreme Court of Florida

____________ No. SC21

- 763

____________ STEPHEN TODD BOOKER, Appellant ,

v s
. STATE OF FLORIDA, Appellee

. February 3, 2022 CORRECTED OPINION
PER CURIAM

. Stephen Todd Booker

— a prisoner under sentence of death

— appeals the trial court’s summary denial of his sixth successive motion for postconviction relief, filed under Florida Rule of Criminal
Procedure 3.851. 1 We affirm.
I. Background In 1978, Booker broke into ninety

- four

- year
- old Lorine
Harmon’s home and then raped and murdered her

. We

1 . We have jurisdiction. See art

. V. § 3(b)(1), Fla. Const.- 2

- summarized the facts surrounding the murder and ensuing investigation as follows: The victim, an elderly woman, was found dead in her apartment in Gainesville, Florida. The cause of death was loss of blood due to several knife wounds in the chest area. Two knives, apparently used in the homicide, were embedded in the body of the victim. A pathologist located semen and blood in the vaginal area of the victim
an d concluded that sexual intercourse had occurred prior to death. The apartment was found to be in a state of disarray; drawers were pulled out and their contents strewn about the apartment. Fingerprints of [Booker] were positively identified as being con sistent with latent fingerprints lifted from the scene of the homicide. [Booker] had a pair of boots which had a print pattern similar to those seen by an officer at the scene of the homicide. Test results indicated that body hairs found on the clothing o f [Booker] at the time of his arrest were consistent with hairs taken from the body of the victim

. After being given the appropriate warnings, [Booker] made a statement, speaking as an alternative personality named “Aniel.” The “Aniel” character made a st atement that “Steve had done it.”
Booker v. State , 397 So. 2d 910, 912 (Fla. 1981). Following Booker’s arrest, the State charged him with
first

- degree murder, sexual battery, and burglary. Booker pled not guilty, and his case proceeded to trial. In establishing its case against Booker, the State relied on several pieces of forensic evidence. As relevant here, the State called FBI Agent Robert Neil

—- 3

- a microscopic hair comparison analyst . Ag ent Neil gave testimony on the significance of the hair fragments , which police found on and
around the victim

. During Agent Neil’s direct examination, the
State asked him how the hair fragments connected Booker to the
crime , resulting in the following ex change: [ Prosecutor :] Let me know show you State’s Exhibit 51 again previously identified as a black hair removed from the vagina of the deceased. Did you attempt to compare that with the known pubic hair samples of the defendant in this case[?] [ Agent Neil :] Excuse me. I had to review my notes a little bit to refresh my memory. I found a black head hair fragment in Exhibit 51 which I can identify as being from a person of the black race. However, due to the limited size, I cannot go any further than that with respect to stating whether or not it could have come from a particular individual in this case, Mr. Booker. ( E mphasis added

. ) In addition to his testimony, Agent Neil also wrote a report summarizing his findings , which the State pr ovided to Booker in discovery. T he State referenced Agent Neil’s testimony and his report in its closing argument summarizing the evidence linking
Booker to the crimes. Ultimately, the jury convicted Booker of each charged offense
and recommended a senten ce of death for Harmon’s murder.- 4

- A ccept ing that recommendation , the judge sentenced Booker to
death

. On direct appeal , we affirmed Booker’s conviction s and

sentence s in all respects. However, the Eleventh Circuit Court of Appeals later vacated Booker’s death sentence

. Booker v. Dugger , 922 F.2d 633, 636 (11 th Cir. 1991). After the new penalty phase , a jury again recommended a sentence of death, which the trial court accepted

. We affirmed the sentence, which became final in 2001

. Booker v. Florida , 532 U.S. 1033, 1033 (2001) (denying petition for certiorari review)

. Since that time , Booker has sought postconviction relief in both state and federal courts, without success. See Booker v. State , 969 So. 2d 186 (Fla. 2007) ; Booker v. Fla. Dep’t of Corr. , 684 F.3d 1121 (11th Cir. 2012) ; Booker v. State , 252 So. 3d 723 (Fla. 2018)

. This case involves Booker’s most recent postconviction challenge which focuses on the microscopic hair comparison
evidence presented at his trial

. While pursuing this challenge,
Booker obtained a 2013 report from the Department of Justice (DOJ) , secured Agent Neil’s report and handwritten notes, and
retained a microscopist. The micros copist , Jason Beckert , reviewed- 5

- the report and notes, police reports about the crime , as well as scientific studies regarding microscopic hair comparison analysis

. He then generated a report , summari zing scientific conclusions regarding the unreliability of microscopic hair comparison analysis , and opin ing that Agent Neil’s handwritten notes conflicted with his trial testimony

. Based on the foregoing investigation , Booker filed a successive postconviction motion rais ing two claims. H e argues that the State suppressed Agent Neil’s handwritten notes as well as the scientific unreliability of his trial testimony in violation of Brady v. Maryland , 373 U.S. 83 (1963). Alternatively, Booker asserts that Agent Neil’s

notes and Beckert’s report constitute newly discovered evidence
under Jones v. State , 709 So. 2d 512, 521 (Fla. 1998)

. Regarding Booker’s Brady claim, t he trial court found that Agent Neil openly relied on the notes during his testimony, and thus, Booker should have been aware of the notes and could have
obtained them at that time. 2 T he trial court rejected Booker’s newly

2

. The trial court further found that Agent Neil’s handwritten notes did not constitute favorable evidence and that Booker suffered no prejudice from their nondisclosure

.- 6

- discovered evidence claim on similar grounds

. Having rejected both claims, the court denied the motion. This appeal follows.
II. Analysis Booker argues that the trial court erred in summarily denying
his successive postconviction motion. We disagree.

A trial court should hold an evidentiary hearing on a rule 3.851 motion where “the movant makes a facially sufficient claim that requires a factual determination.” Rogers v. State , 327 So. 3d 784, 787 (Fla. 2021) (quoting Pardo v. State , 108 So. 3d 558, 560 (Fla. 2012 ) )

. 3 With th is principle in mind, we now assess Booker’s
claims.
To establish a Brady violation, Booker must show “(1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Sweet v.
State , 293 So. 3d 448, 451 (Fla. 2020) (quoting Dailey v. State , 283

3 . We review the summary denial of a postconviction motion de novo. Boyd v. State , 324 So. 3d 908, 913 (Fla. 2021) (citing Tompkins v. State , 994 So. 2d 1072, 1081 (Fla. 2008) )

.- 7

- So. 3d 782, 789 (Fla. 2019) )

. F or Brady purposes , e vidence is
material “ if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different. ” Mordenti v. State , 894 So. 2d 161, 170 (Fla. 2004) (quoting Strickler v. Greene , 527 U.S. 263, 280 (1999) )

. A reasonable probabilit y i s “ a probability sufficient to undermine
confidence in the outcome.” Id. at 175 (quoting Guzman v. State , 868 So. 2d 498, 506 (Fla. 2003) )

. A s we ha ve held, the defendant carries the burden to prove
each element of his Brady claim. See Hurst v. State , 18 So. 3d 975, 988 (Fla. 2009). Thus, the trial court may summarily deny a Brady claim where the motion, files, and record conclusively refute any of
the three Brady prongs
. See Fla. R. Crim . P. 3.851(f)(5)(B) ; Boyd , 324 So. 3d at 913; Morris v. State , 317 So. 3d 1054, 1071 (Fla. 2021); Jimenez v. State , 265 So. 3d 462, 474 (Fla. 2018).
As a threshold matter , “ [t] here is no Brady violation where the information is equally accessible to the defense and the prosecution .” Morris , 317 So. 3d at 1071 (alteration in original) (quoting Peede v. State , 955 So. 2d 480, 497 (Fla. 2007) )

.- 8

- Here, t he trial transcript demonstrates that Agent Neil expressly used his handwritten notes to refresh his recollection during his direct examination

. Consequently , Booker’s counsel
could have examined the notes at that time. Therefore, the record conclusively refutes Booker’s claim that the State suppressed the

notes. S ee Provenzano v. State , 616 So. 2d 428, 430 (Fla. 1993) (finding no suppression where the State’s expert referenced his
notes at trial and used them while testifying ). 4 For similar reasons, Booker’s newly discovered evidence claim
also fails

. Under Jones , t o establish that evidence is newly discovered, the movant must establish that “ (1) the evidence was unknown by the trial court, party, or by counsel at the time of trial, and it must appear that [the] defendant or his counsel could not have known of it by the use of diligence, and that (2) the evidence is

4

. T h e right to examine the items a witness uses to refresh his recollection existed at the time of Booker’s original trial. See Allen v. State , 243 So. 2d 44 8 , 449

- 50 (Fla. 1st DCA 1971) ( “ ‘ The opposite party in both criminal and civil cases has a right to see and examine the memorandums [sic] used by a witness, so as to be in a position to cross

- examine the witness in regard to the testimony given on direct examination ’

. . . . [B]asic principles of fair play . . . require that the opposite party be permitted to examine the notes

. . . so that the accuracy of his statements may be verified.” (quoting 35 Fla. Jur. Witnesses § 180, at 279 (1961))).- 9

- of such a nature that it would probably produce an acquittal on
retrial. ” Smith v. State , 46 Fla. L. Weekly S310 , S317 (Fla. Oct. 21, 2021) (citing Jones , 709 So. 2d at 521 ). N either Agent Neil’s notes nor Jason Beckert’s report satisf ies th is standard. Booker has known about Agent Neil’s notes since his original
trial. Thus, through reasonable diligence

— such as asking to review
the notes

— Booker’s counsel could have discovered this evidence over 40 years ago. See Dailey , 283 So. 3d at 790 ( denying newly
discovered evidence claim where the defendant could have discovered the allegedly exculpatory evidence earlier). Beckert’s report does not constitute newly discovered evidence,
either. As the report itself states, “[i]t has been recognized since the dawn of the field [of microscopic hair comparison analysis] that
individualization of hairs is not possible through mi croscopy alone.” Thus, the information Booker asserts is newly discovered has been
available at least since the time of his original trial. This fact alone demonstrates that the report is not newly discovered under Jones

. See Martin v. State , 322 So. 3d 25, 38 (Fla. 2021) (“ Jones claims . . . are premised on an allegation that the jury did not hear previously
unavailable evidence material to guilt or innocen ce, and that the- 10

- introduction of such evidence would probably have led to the defendant’s acquittal

. ” ) (emphasis added) )

. 5 In sum, Booker’s Brady and Jones claims lack merit

. III. Conclusion
For the reasons given above , we affirm the trial court’s order summarily denying Booker’s sixth postconviction motion.
It is so ordered. CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. An Appeal f rom the Circuit Court in and for Alachua County, William E. Davis , Judge

– Case No. 011977CF002332AXXXXX
Linda Mc D ermott and Christine Yoon , Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida , for Appellant

5

. Additionally, Beckert’s report merely offers a new expert opinion on studies that have been available for decades. This Court has found that such new opinions do not constitute newly discovered evidence. See Asay v. State , 210 So. 3d 1, 23 (Fla. 2016). (“Merely obtaining a new expert to review the same records does not create newly discovered evidence

. ”); see also Schwab v. State , 969 So. 2d 318, 325 (Fla. 2007) (“ [ T ] his Court has not recognized ‘new opinions’ or ‘new research studies’ as newly discovere d evidence.”).- 11

- Ashley Moody, Attorney General, and Jason W. Rodriguez , Assistant Attorney General, Tallahassee, Florida, for Appellee