# Supreme Court of Florida

____________

No. SC18

- 48

____________ WILLIAM GREGORY THOMAS, Appellant,

vs. STATE OF FLORIDA, Appellee. December 28, 2018

PER CURIAM. William Gregory Thomas appeals the postconviction court’s order summarily denying his second successive postconviction motion requesting relief

under Brady v. Maryland , 373 U.S. 83 (1963), and Giglio v. United States , 405 U.S. 150 (1972) , filed under Flori da Rule of Criminal Procedure 3.851. 1

Thomas’ claims involve two individuals who were incarcerated with Thomas, Ahmad Dixon, a te stifying witness, and Adrian Ca son, a potential witness, who Thomas alleges received favorable treatment in their own

1

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

- prosecu tions in exchange for testifying or gathering evidence against him. Thomas

asserts that the State violated Brady by not disclosing (1) evidence that the State had dropped charges against Dixon; and (2) evidence that the State no longer pursued the death p enalty against Cason after he offered to assist the State in Thomas’ prosecution

. Thomas also asserts that the State violated Giglio by presenting or failing to correct false or misleading testimony regarding (1) whether Dixon faced any State court charges between his 1993 arrest and his 1994 testimony ; and (2) whether Cason was promised a benefit specifically in exchange for assisting the State in Thomas’ prosecution

. First, Thomas’ claims are procedurally barred, as this evidence is not newly

dis covered. The record establishes that the information in his claims could have been discovered at an earlier date through the use of due diligence. See Fla. R. Crim. P. 3.851(d)(2)(A).

M oreover, even if Thomas’ claims were not procedurally barred, his c laims

are without merit. Thomas failed to establish Brady’s materiality prong

. See Mosley v. State , 209 So. 3d 1248, 1258

- 59 (Fla. 2016) (“To meet the materiality prong, the defendant must demonstrate ‘a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.’ ” (quoting Way v. State , 760 So. 2d 903, 913 (Fla. 2000) ) )

. Nor did Thomas prove a Giglio violation. E ven if we accept Thomas’ allegations , any- 3

- false testimony of Dixon or Cason was not material

. See Guzman v. State , 86 8 So. 2d 498, 506 (Fla. 2003) ( “Under Giglio , where the prosecutor knowingly uses perjured testimony, or fails to correct what the prosecutor later learns is false testimony, the false evidence i s material ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ . . . The State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at tri al was harmless beyond a reasonable doubt. ” (quoting United States v. Agurs , 427 U.S. 97, 103 (1976) ) ).

Accord ingly , we affirm the postconviction court’s summary denial of

Thomas’ successive motion for postconviction relief.

It is so ordered. CANADY, C .J., and LEWIS, POLSTON, LABA RGA, and LAWSON, JJ., concur

. QUINCE, J., concur s in result. PARIENTE, J., concur s in result in part and dissent s in part with an opinion.

NO MOTION FOR REHEARING WILL BE ALLOWED. PARIENTE, J., concurring in result in part an d dissenting in part. I agree that Thomas is not entitled to relief on his Brady 2 / Giglio 3 claims regarding Dixon, but I would deny relief on the basis of prejudice rather than a procedural bar. The per curiam opinion conflates the standards for Brady / Giglio

2

. Brady v. Maryland , 373 U.S. 83 (1963). 3

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

- claims with the standards for claims of “newly discovered evidence.” While the per curiam opinion reasons that the claims are procedurally barred because the evidence is “not newly discovered” and could have been discovered through “due diligence,” neither Brady nor Giglio contains a due diligence prong. Per curiam op. at 2 . Rather, the focus in a Brady analysis is whether the State failed to disclose information favorable to the defendant; with Giglio , the critical inquiry is whether the State pr esented false testimony. Further, I dissent from the per curiam opinion affirming the postconviction court’s summary denial of Thomas’s Brady / Giglio claims regarding Cason’s deposition testimony. I would, instead, grant an evidentiary hearing to further develop this claim. BACKGROUND On direct appeal, this Court explained the facts underlying Thomas’s crimes, stating: Thomas planned the kidnapping and murder of his wife, Rachel, in order to avoid paying his part of a settlement agreement in their pendi ng divorce. Thomas and a friend, Douglas Schraud, went to Rachel’s house, September 12, 1991, the day before a substantial payment was due, and Thomas beat, bound, and gagged Rachel. When Rachel tried to escape by hopping outside, Thomas knocked her to t he ground and dragged her back inside by her hair. He then put her in the trunk of her car and drove off. She was never seen again.

Thomas v. State , 693 So. 2d 951, 951 (Fla. 1997). In addition to Schraud’s testimony at trial and other incriminating evidence, Thomas made “many- 5

- inculpatory statements and admissions.” Id. at 952; see id. at 952 n.3. The Brady

and Giglio claims arise from allegations regarding two of the individuals

incarcerated with Thomas: Ahmed Dixon, who testified at Thomas’s trial, and Adrian Cason, a potential witness who was deposed but did not testify at trial. ANALYSIS In this case, because the postconviction court did not conduct an evidentiary hearing, this Court must accept Thoma s’s allegations to the extent they are not refuted by the record. See Allen v. State , 854 So. 2d 1255, 1259 (Fla. 2003). As to Dixon, Thomas argues that the State failed to disclose evidence that the State had dropped charges against Dixon, and he furthe r gave false testimony at his deposition and the trial when he stated that he did not have any dropped State charges. Thomas argues that this information would have been vital to impeaching Dixon at trial. However, this information would have been cumula tive to the information presented at trial because the jury heard that Dixon had three pr ior felony convictions, was currently incarcerated at the Duval County Jail on federal charges for possession with intent to distribute cocaine, and was awaiting

sente ncing after pleading guilty to the federal charges without a plea bargain. Therefore, the jury was made aware of Dixon’s possible “motives for testifying, including the prospect of receiving a plea deal.” Further, the additional impeachment evidence Thom as claims does not undermine the evidence presented- 6

- to the jury of Thomas’s guilt, which is explained above. Thus, Dixon has failed to prove prejudice to sustain a Brady claim or materiality to sustain a Giglio claim. Accordingly, I concur in result as t o Thomas’s claim regarding Dixon. As to Cason, Thomas argues that the State failed to disclose that Cason’s plea deal was based solely on his assistance in gathering evidence against Thomas and did not require Cason to testify at Thomas’s trial, as evidenc ed by testimony in Cason’s 2000 postconviction hearing. Further, Thomas claims that, at his deposition, Cason presented false or misleading testimony when he failed to disclose that his plea deal with the State did not include his testifying during

Thomas ’s trial. Thomas argues that the defense could have used this information to show Cason was acting as a State agent when he encouraged Thomas to speak freely with him in front of Dixon.

The record is insufficient to determine whether Thomas is entitled to relief on this claim. First, as to the Brady claim, it was not defense counsel’s responsibility to assume Cason’s deposition testimony was false and continue digging to determine whether the plea deal encompassed more or less than what

Cason claimed. As I explained in Pittman v. State , 90 So. 3d 794 (Fla. 2011): [T]he majority could be read to approve of a due diligence requirement in Brady when Brady has no such requirement.

. . . This would of course be a serious misstatement of the purpose of Brady , which imposes the important requirement on prosecutors “to learn of any favorable evidence known to the others acting on the government’s behalf in the case,” Kyles v. Whitley , 514 U.S. 419, 437,- 7

- (1995), and to produce that evidence if it is material. Th is Court has explicitly stated: “[W]e point out that there is no ‘ due diligence ’ requirement in the Brady test and that the prosecutor is charged with possession of what the State possesses . . . .” Archer v. State , 934 So. 2d 1187, 1203 (Fla. 2006). As more fully explained by this Court in Archer: [W]e have held that a defendant is not required to compel production of favorable evidence which is material, in that the evidence tends to negate the guilt of the accused or tends to negate the punishment. T o comply with Brady , the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case and to disclose that evidence if it is material. The postconviction court is in error to the extent that the court’s order is read to mean that [the defendant] had to demonstrate “ due diligence ” in obtaining favorable evidence possessed by the State or that the prosecutor’s obligation was only to give to [the defendant] favorable evidence which was in th e prosecutor’s personal possession.

Id. at 1203 (emphasis added) (citations omitted). Of course, if the defendant knew of the evidence or had possession of it, then there could not be a Brady claim because the evidence could not be found to have been wit hheld from the defendant.

Id. at 820

- 21 (Pariente, J., concurring in result). Further, Thomas’s Giglio claim rises and falls on the truthfulness of Cason’s deposition testimony regarding his plea deal. Thus, I would grant an evidentiary hearing to further develop the claim. CONCLUSION For these reasons, I concur in result as to the per curiam opinion’s

co nclusion that Thomas is not entitled to relief on his Brady / Giglio claims- 8

- regarding Dixon but dissent as to Thomas’s claim regarding Cason, on which I would grant an evidentiary hearing. An Appeal from the Circuit Court in and for Duval County, Marianne L . Aho , Judge

- Case No. 161993CF005394AXXXMA Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater, Florida ; and Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Fl orida, for Appellant Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee