          Supreme Court of Florida
                                   ____________

                                  No. SC13-2246
                                  ____________

                          DERRICK TYRONE SMITH,
                                 Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                 [October 5, 2017]

PER CURIAM.

      Derrick Tyrone Smith, a prisoner under sentence of death, appeals two

circuit court orders denying his successive motions for postconviction relief filed

under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. For the reasons we explain, we affirm the circuit court’s

orders denying relief.

                               I. BACKGROUND

      Smith was convicted of and sentenced to death for the March 21, 1983, first-

degree murder of Jeffrey Songer, a cab driver in St. Petersburg, Florida. Smith

was initially tried, convicted, and sentenced to death in 1983, but we reversed the
conviction and sentence on appeal and remanded for a new trial because of the

admission of improper comments on Smith’s right to remain silent and a statement

Smith made to a detective after he invoked his right to remain silent. Smith v.

State, 492 So. 2d 1063, 1065-67 (Fla. 1986). In 1990, Smith was again tried,

convicted, and sentenced to death, and we affirmed the conviction and sentence on

appeal after the retrial. Smith v. State, 641 So. 2d 1319 (Fla. 1994). We also

affirmed the denial of Smith’s initial motion for postconviction relief and denied

his petition for a writ of habeas corpus. Smith v. State, 931 So. 2d 790 (Fla. 2006).

      Smith then filed a federal habeas petition in the United States District Court

for the Middle District of Florida, which was denied on August 8, 2007. Smith v.

Sec’y, Dep’t of Corr., No. 8:06-cv-01330-T-17MAP, 2007 WL 2302207 (M.D.

Fla. Aug. 8, 2007), aff’d in part, vacated in part, remanded, 572 F.3d 1327 (11th

Cir. 2009). On appeal, the United States Court of Appeals for the Eleventh Circuit

affirmed in part and remanded in part for the Middle District to perform a

cumulative materiality analysis of six Brady v. Maryland, 373 U.S. 83 (1963),

claims1 raised in Smith’s initial postconviction motion, as required by Kyles v.


      1. The six Brady claims are:

      (1) Melvin Jones sought help from the prosecutor with the probation
      violation and grand theft charges against him; (2) Melvin Jones,
      fearing arrest, sought help from the prosecutor in regard to the sexual
      abuse allegations his daughter was making against him; (3) one or
      more police reports indicated that Melvin Jones had initially been

                                        -2-
Whitley, 514 U.S. 419 (1995). Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327,

1352 (11th Cir. 2009). On October 19, 2009, the Middle District, after conducting

a cumulative materiality analysis, concluded that Smith was not entitled to habeas

relief. Smith v. Sec’y, Dep’t of Corr., No. 8:06-cv-1330-T-17MAP, 2009 WL

3416775 (M.D. Fla. Oct. 19, 2009), vacated and remanded, No. 10-11562, 2011

WL 4810173 (11th Cir. Oct. 12, 2011).

      On July 2, 2007, while his federal habeas petition was pending, Smith filed a

successive rule 3.851 motion for postconviction relief, which was summarily

denied by the postconviction court. On appeal in 2011, we reversed the summary

denial of Smith’s successive motion and remanded the case to the circuit court for

an evidentiary hearing on “Smith’s allegations that (1) letters from the Federal

Bureau of Investigation regarding expert testimony on comparative bullet lead

analysis [(CBLA)] offered at his retrial constituted newly discovered evidence and

(2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose




      considered as a suspect in 1983; (4) a prosecutor’s synopsis of an
      interview of David McGruder and some police reports cast doubt on
      McGruder’s identification of Smith; (5) a prosecutor’s note indicated
      that Jones and Johnson had met briefly in a holding cell before the
      1983 trial; and (6) several reports showed that Priscilla Walker’s
      statement to the police about when Smith was at her house conflicted
      with statements by others about where he was during that time.
Smith v. State, 75 So. 3d 205, 206 (Fla. 2011) (quoting Smith v. Sec’y, Dep’t of
Corr., 572 F.3d 1327, 1348 (11th Cir. 2009)).

                                        -3-
information regarding trial witness Priscilla Walker.” Smith v. State, 75 So. 3d

205, 206 (Fla. 2011). We also remanded the six Brady claims identified by the

Eleventh Circuit for consideration under the cumulative materiality analysis

required by Kyles, in light of the Eleventh Circuit’s 2009 decision, in which the

Eleventh Circuit determined that the Brady claims, which were also raised in

Smith’s federal habeas petition, “involve[d] favorable evidence that was actually

suppressed,” Smith, 572 F.3d at 1348. See Smith, 75 So. 3d at 206. And in light

of our 2011 remand, the Eleventh Circuit vacated the Middle District’s 2009 order

determining that Smith was not entitled to habeas relief after a cumulative

materiality analysis of the six remanded Brady claims and again remanded with

instructions for the district court to hold the federal habeas proceeding in abeyance

pending the completion of the state collateral proceedings and this appeal from

those proceedings. Smith v. Sec’y, Dep’t of Corr., No. 10-11562, 2011 WL

4810173, at *1 (11th Cir. Oct. 12, 2011).

      After this Court’s remand in 2011, the postconviction court held an

evidentiary hearing on Smith’s newly discovered evidence and Brady claims and

thereafter denied relief. During the pendency of the remand, on August 13, 2013,

Smith filed another successive postconviction motion in the circuit court, which

was summarily denied on November 18, 2013. Smith now appeals these orders

denying relief.


                                        -4-
                                   II. ANALYSIS

      Smith argues that the postconviction court erred in failing to conduct its

cumulative materiality analysis of the Brady claims in accordance with Kyles, that

the postconviction court erred in failing to include the State’s failure to disclose

Priscilla Walker’s 1988 obstruction conviction in its cumulative materiality

analysis, and that the postconviction court erred in failing to conduct its newly

discovered evidence analysis in accordance with Jones v. State, 709 So. 2d 512

(Fla. 1998), and Swafford v. State, 125 So. 3d 760 (Fla. 2013). For the reasons

explained below, we affirm the circuit court’s denial of postconviction relief.

                                  A. Brady Claims

      Smith argues that the postconviction court erred in failing to employ the

proper standard when conducting its cumulative materiality analysis of his Brady

claims and to include the State’s failure to disclose Priscilla Walker’s misdemeanor

conviction for obstruction in its cumulative materiality analysis. We disagree.

      The Supreme Court has held that the “suppression by the prosecution of

evidence favorable to an accused . . . violates due process where the evidence is

material either to guilt or to punishment.” Brady, 373 U.S. at 87. “There are three

components of a true Brady violation: The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently;


                                         -5-
and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82

(1999). To establish prejudice, the defendant must demonstrate that the suppressed

evidence is material. “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” United States v. Bagley, 473

U.S. 667, 682 (1985). In other words, the question is whether “the favorable

evidence could reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.

      In making the materiality determination, a court must first “evaluate the

tendency and force of the undisclosed evidence item by item” before separately

“evaluat[ing] its cumulative effect.” See id. at 436 n.10 (“We evaluate the

tendency and force of the undisclosed evidence item by item; there is no other way.

We evaluate its cumulative effect for purposes of materiality separately and at the

end of the discussion . . . .”). “Considering the undisclosed evidence cumulatively

means adding up the force of it all and weighing it against the totality of the

evidence that was introduced at the trial.” Smith, 572 F.3d at 1334.

“A ‘reasonable probability’ of a different result exists when the government’s

evidentiary suppressions, viewed cumulatively, undermine confidence in the guilty

verdict.” Id. (citing Kyles, 514 U.S. at 434, 436 & n.10, 437).


                                         -6-
      In addition to the six Brady claims that were remanded for consideration

under the Kyles cumulative materiality analysis, the postconviction court found a

seventh Brady violation. The postconviction court concluded that Priscilla Walker

had a 1989 shoplifting conviction under the alias Priscilla Smith that was

suppressed by the State and favorable to Smith because it was “somewhat

impeaching.” Although the court did not find that the failure to disclose the

shoplifting conviction was by itself sufficiently material to undermine confidence

in the guilty verdict, it did consider this nondisclosure cumulatively with the other

six Brady claims that were remanded for consideration in a cumulative materiality

analysis. The postconviction court also considered the seven Brady claims in

conjunction with the newly discovered CBLA evidence. The postconviction court

concluded that “[a]fter weighing the evidence presented at trial and adjusting for

the new and withheld evidence” its “confidence in the guilty verdict ha[d] not been

undermined.”

      As did the postconviction court, we adopt the Eleventh Circuit’s item by

item analysis of the six remanded Brady claims. See Smith, 572 F.3d at 1342-46.

As to the seventh Brady claim, Walker’s 1989 shoplifting conviction, we agree

with the postconviction court’s conclusion that the fact of the conviction standing

alone is not material. We also agree that because the conviction was not disclosed

and could have been used to impeach Walker under section 90.610(1), Florida


                                         -7-
Statutes (1989),2 the postconviction court properly considered it along with the

other six Brady claims and the newly discovered CBLA evidence in the cumulative

materiality analysis.

      The postconviction court properly considered the collective force of the new

and undisclosed evidence and weighed it against the totality of the evidence that

was presented at the trial. We find no error in the postconviction court’s analysis

and agree that taking the collective impact of all the suppressed evidence and the

newly discovered evidence and weighing it against the totality of the evidence that

was introduced at the trial does not put the whole case in such a different light as to

undermine confidence in the verdict.

      Smith also asserts that the postconviction court erred in failing to include the

State’s failure to disclose Walker’s 1988 misdemeanor obstruction conviction in its

cumulative materiality analysis. On June 27, 1988, Walker and her half brother,

Henry Cummings, were arrested in connection with a single incident. Walker was

charged with obstruction. Cummings, who used the name Marcus White for the



        2. Section 90.610(1), Florida Statutes, provides that evidence that a witness
has been convicted of a crime may be used to attack the credibility of a witness, if
the crime was a felony or a crime involving dishonesty or a false statement. A
theft, such as shoplifting, is a crime of dishonesty. See State v. Page, 449 So. 2d
813, 815 (Fla. 1984) (“It is our view that the commission of petit theft, or any other
offense falling within the scope of chapter 812, Florida Statutes (1981), necessarily
involves ‘dishonesty’ so as to bring any conviction for such a crime within the
scope of subsection 90.610(1).” (Footnote omitted.)).


                                         -8-
arrest, was charged with disorderly conduct. Cummings pleaded no contest the

following day and was sentenced to time served and released. Walker pleaded no

contest to the obstruction charge on August 1, 1988, and the sentence imposed at

that time was to “pay [a] fine and costs in the amount of $100.00 to be taken out of

[her] bond.”

      On August 5, 1988, Walker was interviewed by Scott Hopkins, an

investigator with the State Attorney’s Office. During that interview, Walker told

Hopkins that Smith had confessed to her shortly after the murder on March 21,

1983, that he had just “shot a cracker in the back.” Walker had not previously

advised law enforcement of Smith’s confession.

      Smith argues that

      had the defense known of the obstruction conviction, the timing of the
      arrest, and the involvement of Walker’s brother as the co-defendant,
      Mr. Smith’s trial counsel could have used the undisclosed information
      to suggest that in late July and early of [sic] 1988 when Walker told
      law enforcement of Mr. Smith’s alleged statement to her in 1983
      (which she had not previously revealed), she had reason to seek to
      curry favor with the State . . . .

Appellant’s Initial Brief at 71, Smith v. State, No. 13-2246 (Fla. June 26, 2014).

We disagree. Because Walker’s obstruction charge had already been resolved at

the time she revealed Smith’s confession, it did not serve as a reason for her to

curry favor with the State and would not have served to impeach her testimony at

Smith’s trial.



                                        -9-
      Smith further argues that when Walker first told the State that Smith

confessed the murder to her, she could have been attempting to curry favor for her

brother’s disorderly conduct charge. Smith states:

      For exactly the same reason that the Eleventh Circuit ruled that the
      note discussing [Melvin] Jones’s fear of a sexual abuse allegation was
      undisclosed impeachment, the existence of the obstruction case
      against her and the disorderly conduct case against her brother could
      have been used as impeachment regarding her statement in late July
      and/or early August incriminating Mr. Smith in the homicide.

Appellant’s Initial Brief at 73, Smith v. State, No. 13-2246 (Fla. June 26, 2014).

While we recognize that the Eleventh Circuit “has held that evidence of motivation

to testify, especially for key prosecution witnesses, is impeachment evidence that

must be disclosed,” Smith, 572 F.3d at 1343, there is no evidence here to support

Smith’s claim that on August 5, 1988, when Walker advised law enforcement of

Smith’s confession, she was motivated by a desire to obtain a favorable resolution

of her brother’s disorderly conduct charge. Cummings testified at the evidentiary

hearing that his disorderly conduct charge was resolved the day after his arrest in

June 1988. Thus, there is no support for Smith’s claim that Walker’s obstruction

charge or Cummings’ disorderly conduct charge were evidence of Walker’s

motivation to testify.

      Smith also asserts in a footnote in his “Statement of the Case” that at the

time Walker advised the State of Smith’s confession “the charges against her

brother remained pending” and thereafter “her brother was able to plead out to


                                        - 10 -
probation.” Appellant’s Initial Brief at 18 n.23, Smith v. State, No. 13-2246 (Fla.

June 26, 2014). But Smith fails to point to anything in the record indicating that

Cummings had charges pending against him on August 5, 1988, to which he

thereafter “was able to plead out to probation.” In fact, the record seems to refute

this claim; Cummings testified that after he resolved the disorderly conduct charge

in June 1998, he was arrested in another criminal case and sentenced to prison.

      Further, because Walker’s obstruction conviction was not a crime of

dishonesty or false statement, it could not have been used to impeach her

credibility at Smith’s trial under section 90.610(1), Florida Statutes, or any other

provision of the Florida Evidence Code. There is simply no record support for

Smith’s claim that disclosure of Walker’s obstruction conviction would have

allowed him to impeach Walker at trial or provided him with evidence that he

could use to “suggest” that her testimony was motivated by a desire to curry favor

for her own or her brother’s pending criminal charges. Accordingly, the

postconviction court did not err in omitting the State’s failure to disclose the

obstruction conviction from its cumulative materiality analysis.3



       3. Smith also claims that disclosure of the obstruction conviction would
have led the defense to the discovery that Walker had a brother from whom
defense counsel could have learned that Walker told her brother that she did not
believe that Smith committed the murder. However, this claim does not establish a
Brady violation. The fact that Walker had a brother was not suppressed by the
State.


                                        - 11 -
                B. Newly Discovered Evidence Regarding CBLA

      At Smith’s trial, the State

      presented physical evidence and expert testimony linking Smith to the
      murder. FBI Agent Robert Sibert testified that Smith’s jeans pocket
      contained lead residue consistent with bullets. The State put into
      evidence a bullet fragment taken from Songer’s clothing. Two other
      FBI agents, Asbery and Havekost, were qualified as experts and
      testified that the bullet fragment, according to lead compositional
      analysis, “matched” bullets from the ammunition box Roy Cone[,
      Smith’s uncle,] had purchased in 1972 and still possessed at the time
      of the murder. The State used this evidence to argue that it was Smith
      who had stolen his uncle’s gun and some bullets that had come from
      the box—bullets that were used to kill the victim. The gun itself was
      never found.
Smith, 572 F.3d at 1331-32.

      Smith’s newly discovered evidence claim is predicated on letters sent by the

FBI to the State in 2008 and 2009 regarding the CBLA testimony presented at

Smith’s trial. The letters indicated that in his testimony at Smith’s trial, Agent

Havekost overstated the significance of the results of the CBLA. At the

evidentiary hearing held on this claim in 2013, Smith presented testimony from

three expert witnesses regarding his CBLA newly discovered evidence claim.

After the evidentiary hearing, the postconviction court denied relief on this claim.

      In Jones, 709 So. 2d at 521, this Court set forth the test for a conviction to be

set aside on the basis of newly discovered evidence as follows:

      First, in order to be considered newly discovered, the evidence “must
      have been unknown by the trial court, by the party, or by counsel at



                                        - 12 -
      the time of trial, and it must appear that defendant or his counsel could
      not have known [of it] by the use of diligence.”
              Second, the newly discovered evidence must be of such nature
      that it would probably produce an acquittal on retrial. To reach this
      conclusion the trial court is required to “consider all newly discovered
      evidence which would be admissible” at trial and then evaluate the
      “weight of both the newly discovered evidence and the evidence
      which was introduced at the trial.”

(Alteration in original) (citations omitted). In Swafford, 125 So. 3d at 775-76, we

explained the Jones analysis further as follows:

             The Jones standard requires that, in considering the effect of the
      newly discovered evidence, we consider all of the admissible evidence
      that could be introduced at a new trial. In determining the impact of
      the newly discovered evidence, the Court must conduct a cumulative
      analysis of all the evidence so that there is a “total picture” of the case
      and “all the circumstances of the case.” As this Court held in
      Lightbourne[ v. State, 742 So. 2d 238, 247 (Fla. 1999)], a trial court
      must even consider testimony that was previously excluded as
      procedurally barred or presented in another proceeding in determining
      if there is a probability of an acquittal. . . . [T]his requirement not
      only is consistent with our precedent, but is also consistent with logic,
      as the Jones standard focuses on the likely result that would occur
      during a new trial with all admissible evidence at the new trial being
      relevant to that analysis.
(Citations omitted.)

      Here, the postconviction court concluded that the letters from the FBI

qualified as newly discovered under the first prong of the Jones test, but they did

not met the second prong of the Jones test. The court explained:

      At trial, the State relied on the CBLA evidence to supplement a case
      otherwise based on eyewitness testimony of several witnesses, whose
      credibility the jury had the opportunity to evaluate, as well as other
      circumstantial evidence. Certainly, in light of the post-trial


                                        - 13 -
      developments regarding CBLA, Agent Havekost’s trial testimony
      might well have been impeached with the new evidence regarding the
      reliability of CBLA, if its admission was even allowed.
             While the erosion of CBLA was unknown at the time of trial
      and the fact that potentially inaccurate testimony became a feature of
      the Defendant’s 1990 trial, the Court cannot say that the absence of
      the CBLA evidence or compelling impeachment of the CBLA
      evidence would produce an acquittal on retrial.

      We agree that even the complete absence of CBLA evidence at a retrial

would not probably produce an acquittal. There is ample non-CBLA evidence in

this case. At Smith’s 1990 retrial, Smith’s uncle, Roy Cone, testified that he

owned a .38 Smith & Wesson blue steel handgun with a brown handle from 1972

to 1983. The gun went missing sometime between January and March of 1983.

Smith had previously lived at Cone’s house and had last visited in February or

March of 1983, around the time the gun went missing.

      Carolyn Mathis, James Matthews, Priscilla Walker, Derrick Johnson, and

Ernest Rouse, all testified that Smith was in possession of a gun on March 20,

1983. Rouse described the gun as a “blue/black revolver with a brown handle.”

Johnson described the gun as a .38-caliber revolver with a six-inch barrel, a brown

handle, and a black cylinder. Carolyn Mathis described the gun as “shiny” and

said that Smith was trying to sell it for $50. Both Melvin Jones and Johnson,

Smith’s codefendant, testified that they saw Smith shoot the victim. Jones testified

that he saw Smith flee the scene with the gun, which he identified as a .32- or .38-

caliber revolver.


                                       - 14 -
      The night of the murder, Smith told Regina Mathis that he was going to

“hustle” some money. He also told James Matthews that he intended to get some

money that night. Rouse said that Smith and Johnson were together on the night of

the murder, and both Mathis sisters saw a man matching Johnson’s description

with Smith that night. No one saw Johnson with a gun.

      Johnson testified that he and Smith formulated several different plans for

committing an armed robbery the night of the murder before eventually settling on

a plan to call a cab and rob the driver. Johnson testified that Smith used the phone

at the Hogley Wogley BBQ to call a cab shortly after midnight on March 21, 1983.

Fingerprint evidence confirmed that Smith used the phone at the Hogley Wogley.

Johnson said that the plan was for him to ride in the front seat of the cab and for

Smith to ride in the back and to hold the gun on the driver while Johnson took his

money.

      David McGruder, the cook at the Hogley Wogley, testified that he saw two

men matching the descriptions of Smith and Johnson at the Hogley Wogley that

night. McGruder also testified that he saw the man matching Smith’s description

use the phone and enter the back seat of the cab when it arrived, although he was

not certain that the man was Smith.

      Walker testified that after the murder, between midnight and 1 a.m., Smith

returned to her house and told her that he had just “shot a cracker in the back”


                                        - 15 -
because “he act[ed] like he didn’t want to give up the money.” Matthews said that

he arrived back at Walker’s house between midnight and 2 a.m. and Smith told

him that he “might have shot someone.”

      Marcel DeBulle, a Canadian tourist, testified that Smith robbed him in his

motel room around noon on March 21, 1983, about twelve hours after the murder.

DeBulle said that Smith held a revolver with a shiny, blue, steel barrel to his head.

Fingerprints on DeBulle’s briefcase, which Smith handled during the robbery,

were matched to Smith.4

      Because there is ample non-CBLA evidence that would be admissible at a

retrial to establish Smith’s role in Songer’s murder and his identity as the shooter,

we cannot say that the exclusion of the CBLA evidence at a retrial would probably

produce an acquittal. This is true even when the exclusion of the CBLA evidence

is considered cumulatively with the seven Brady violations discussed herein and

Smith’s various Brady, Giglio, and newly discovered evidence claims that were

previously raised and found barred or otherwise denied.

                                III. CONCLUSION

      For the reasons stated above, we affirm the postconviction court’s orders

denying Smith’s successive motions for postconviction relief.



      4. Smith was convicted of the armed robbery in a separate proceeding and is
serving a life sentence for it.


                                        - 16 -
      It is so ordered.

LABARGA, C.J., and LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion.
QUINCE, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      I respectfully but strongly disagree with the majority. When a proper

cumulative error analysis is performed, there can be no doubt that confidence in

the outcome is undermined when the newly discovered evidence claim is combined

with the multiple Brady claims.5 While no single claim may rise to the level of

requiring a new trial, the collective import of the errors—discrediting of a key

piece of forensic evidence together with the State’s multiple significant failures to

produce evidence favorable to the defendant—compels that Smith be granted a

new trial.




       5. Brady v. Maryland, 373 U.S. 83 (1963). In my view, any other outcome
would be a violation of Smith’s constitutional right to due process. See id. at 87.
“Society wins not only when the guilty are convicted but when criminal trials are
fair; our system of the administration of justice suffers when any accused is treated
unfairly. . . . A prosecution that withholds evidence on demand of an accused . . .
casts the prosecutor in the role of an architect of a proceeding that does not
comport with standards of justice.” Id. at 87-88.

                                        - 17 -
                        Newly Discovered Evidence Claim

      As to Smith’s newly discovered evidence claim, the State’s comparative lead

bullet analysis (CBLA) expert witnesses have now been fully discredited, as has

the underlying science. Yet, at trial, the State argued that the CBLA proved that

the bullet that killed the victim was “materially indistinguishable . . . [or] the same”

as bullets from a box found at Smith’s uncle’s house, which Smith had access to,

and the chances of finding a box of bullets with the same composition as a box

made ten years before “just boggles the mind.” It does “boggle the mind” that the

jury was told that there was solid science linking a particular bullet to Smith when

the FBI has since reported that such science can do nothing of the sort.

      We now know that the FBI has reported CBLA forensic evidence could not

be used to determine, for a fact, that any bullet or bullets came from the same box

or set produced by the manufacturer. The CBLA evidence was used by the State to

prove that ammunition hidden with the gun in Smith’s uncle’s home was the same

ammunition used to murder the victim. Indeed, the postconviction court stated,

“The evidence linking the bullet fragment taken from the victim Jeffrey Songer to

the ten-year-old gun and box of bullets owned by the Defendant’s Uncle Roy Cone

became a feature of the Defendant’s trial. The State emphasized the testimony of

the FBI agents as being corroborative of all the other trial testimony and evidence.”




                                         - 18 -
      Thus, this evidence, a key forensic pillar upon which the State based the rest

of its case, is no longer reliable and weighs heavily in favor of the defendant when

considered cumulatively with the Brady claims that follow.

                                    Brady Claims

      As to Smith’s seven Brady claims and the Eleventh Circuit Court of

Appeals’ concerns with this Court’s original failure to perform a cumulative error

analysis, I first note that this case does not involve just one Brady claim but, rather,

a pattern of multiple failures on the part of the State to disclose evidence that

would have been favorable to Smith. While not one piece of undisclosed evidence,

itself, meets the standard for reversal under Brady, a cumulative error analysis of

the claims, coupled with the newly discovered evidence above, compels vacating

Smith’s conviction and sentence and remanding this case for a new trial.

      Cumulative error analysis of all undisclosed evidence is necessary “because

the sum of the parts almost invariably will be greater than any individual part.”

Smith v. Sec’y, Dep’t of Corrs., 572 F.3d 1327, 1348 (11th Cir. 2009). Indeed, the

postconviction court’s order denying Smith relief is replete with statements such

as: “This court is troubled by the Brady violations noted by the Eleventh Circuit

Court of Appeals”; Melvin Jones “was an important State witness since he was the

only eyewitness who was not involved in the robbery and murder, and both the

State and the defense recognized that his credibility was important”; “The evidence


                                         - 19 -
that the CBLA testimony has been eroded since the trial and was, in all likelihood,

given undue weight is of concern to the court”; and “The [CBLA] evidence linking

the bullet fragment taken from the victim to Jeffrey Songer to the ten-year-old gun

and box of bullets owned by the Defendant’s Uncle Roy Cone became a feature of

the Defendant’s trial.”

                                   A. Melvin Jones

      As to Smith’s Brady claims, I start with the crucial witness, Melvin Jones,

who placed Smith at the scene of the crime. As the postconviction court noted,

Jones was the only witness to the crime who was not part of the robbery and

murder.

      The State failed to disclose that at the time of trial “Melvin Jones was not

content with the assistance he received from the State for his testimony at the 1983

trial, and told the State that he wanted help with some pending probation violations

and a grand theft charge.” Second, Jones, fearing arrest, sought additional help

from the prosecutor in exchange for his testimony in Smith’s second trial, to deal

with his daughter’s allegation that he sexually abused her. Third, one or more

police reports indicated that Jones was initially considered as a suspect in this case

in 1983. Fourth, a prosecutor’s note indicated that Jones and Johnson had met

briefly in a holding cell before the 1983 trial.




                                         - 20 -
      This evidence regarding Jones’ new motivation for testifying in the retrial—

that he was testifying in an attempt to avoid arrest and prosecution for sexual abuse

allegations—is particularly concerning. Even though the jury was able to consider

Jones’ twenty-four prior convictions and that he was hiding from the police on the

night of the murder, his new motivation for testifying could have been used to

further attack his credibility with the jury. As the Eleventh Circuit stated:

              Melvin Jones was an important State witness. He was the only
      eyewitness to the crime who was not involved in the robbery and
      murder. Both sides recognized that his credibility was important, and
      the defense cross-examined him intensely about his motivation to
      testify at the 1983 trial and about the sentencing break he got for that
      testimony. At the 1990 trial, however, the defense had nothing to
      show that Jones had a motive for testifying against Smith again since
      the charges he had faced in 1983 were long gone. The State failed to
      disclose that Jones did have a new reason to curry favor with the
      prosecution-that he feared he would be charged with a serious crime,
      that he was looking for help from the prosecutor if his fears were
      realized, and that he had talked with the prosecutor about it before he
      testified at the 1990 trial.

Smith, 572 F.3d at 1343.

      Perhaps most disconcerting, the State failed to disclose that Jones and

codefendant Johnson met in jail before Smith’s 1983 trial. The postconviction

court found that the State failed to disclose that on July 11, 1984, “Jones

approached Johnson in a holding cell, showed him a map of the crime scene, and

offered to help him in connection with the case.” Id. at 1345. The State conceded

this information met the first two prongs of Brady but argued that the evidence was


                                        - 21 -
immaterial. However, as part of its cumulative analysis, the postconviction court

found:

      Both Melvin Jones’ and co-defendant’s testimony is weakened by
      evidence that they met in jail before the Defendant’s 1983 trial. . . .
      Allegedly, Derrick Johnson reported that Melvin Jones approached
      him and that he was so unnerved that he immediately called the
      guards and asked to be removed from the holding cell.

Despite knowing there was evidence of collusion before the trial between Jones

and the codefendant, during closing arguments:

      [T]he State emphasized that any suggestion that Derrick Johnson and
      Melvin Jones colluded was without merit. “Now, was there any
      testimony from that witness stand that could lead you to believe that
      Derrick Johnson and Melvin Jones got together and fabricated this
      testimony in order to pin the [blame on] Derrick Smith? There is no
      testimony from that stand that they even new[sic] each other on
      March 23, 1983, other than Melvin Jones saying, I knew him on the
      street as being New York. Did you socialize with him. No, I just
      knew of him as New York.”

                               B. David McGruder

      Further, the State suppressed evidence of another key report that could have

been used to impeach State witness David McGruder. McGruder’s testimony was

the only testimony that placed Smith at the convenience store during the early

morning hour immediately preceding the murder. Police reports and a synopsis of

a police interview indicate that Smith was as much as seventy-five pounds heavier

than the man McGruder described to police as using the pay phone at the

convenience store before getting in the cab with the victim. Clearly this



                                        - 22 -
information would have provided powerful impeachment to this eyewitness’s

testimony had the State produced the evidence to the defense, as is required.

                                C. Priscilla Walker

      Finally, there is witness Priscilla Walker, who testified that shortly after the

murder Smith returned to her home, told her that he had “shot a cracker in the

back,” and remained in her home until 5:00 a.m. The undisclosed evidence,

including several law enforcement reports, showed that Walker’s statement to the

police about when Smith was at her house conflicted with statements by others

about where Smith was during that time, and that Walker had a 1989 shoplifting

conviction under the alias Priscilla Smith, which could have also been used to

attack her credibility at trial. There was additional evidence suppressed that the

police took Walker’s boyfriend, who was living with her at the time, into custody

on the night of the murder, thinking he was actually Smith. This evidence could

have also been used by the defendant to create reasonable doubt.

                                  CONCLUSION

      I would conclude that when analyzed cumulatively, the Brady violations and

newly discovered evidence, which cast doubt as to the veracity of the testimony of

one of the State’s key-witnesses, forensic evidence that became the feature of

Smith’s trial and a pillar upon which the State relied, and an additional witness

who testified regarding a confession, is sufficient to undermine confidence in the


                                        - 23 -
outcome of the verdict of Smith’s trial. A key issue in Smith’s trial was not only

whether Smith was present at the crime scene, but whether Smith or the

codefendant, Johnson, who was also in the cab, shot the driver. Without the

evidence related to Brady claims and the newly discovered evidence relating to the

veracity of the CBLA, the State could only prove that Smith had a revolver on the

night of the crime; Smith was at the convenience store at some point and left his

fingerprint on the public phone; and Smith was planning to “hustle” some money

that night. The only eyewitness account of what happened the night of the murder,

not attacked by a Brady claim, came from the codefendant in the case, Johnson,

who received a plea bargain in exchange for this testimony—hardly a reliable

witness. Smith, 572 F.3d at 1330-32.

      Nine years ago, the Eleventh Circuit Court of Appeals criticized this Court

for failing to perform a cumulative error analysis:

      There is room for debate about whether the Florida Supreme Court
      performed any cumulative analysis of the favorable evidence it found
      had been withheld from the defense. See Smith, 931 So. 2d at 797-99.
      However, there is no room for debate about whether that court
      performed a cumulative materiality analysis of all six of the pieces of
      favorable evidence we have concluded were withheld from the
      defense. As we have pointed out, the Florida Supreme Court
      unreasonably determined that the fact Melvin Jones had talked with
      the prosecutor before the 1990 trial about his fears that he would be
      charged with the sexual abuse of his daughter was not impeachment
      evidence under Brady. For that reason the court did not consider that
      evidence in conducting its materiality analysis, whether that analysis
      was cumulative or not. It follows that we cannot defer to its decision
      about whether the withheld evidence was material.

                                        - 24 -
Id. at 1348 (emphasis added) (citation omitted). And, although this Court

remanded for an evidentiary hearing and cumulative error analysis in Smith v.

State, 75 So. 3d 205, 206 (Fla. 2011), and the trial court issued a comprehensive

twenty-three page order detailing its analysis, this Court now fails to explain why

the cumulative errors in this case do not undermine the Court’s confidence in the

outcome other than agreeing with the trial court in a cursory manner. See majority

op. at 8. However, when reviewing Brady claims, it is this Court’s obligation not

to simply defer to the trial court, but to perform a de novo review. See Geralds v.

State, 111 So. 3d 778, 787 (Fla. 2010) (citing Mordenti v. State, 894 So. 2d 161,

169 (Fla. 2004); Way v. State, 760 So. 2d 903, 913 (Fla. 2000) (deferring to the

court on questions of fact, this Court reviews de novo the application of the law

and independently reviews the cumulative effect of suppressed evidence)). This

Court has once again failed to perform a proper cumulative error analysis.

      On the balance of equities, confidence in the outcome is certainly

undermined both as to the guilt and certainly as to the penalty phase of Smith’s

trial. Accordingly, justice compels this Court to vacate Smith’s conviction and

sentence and remand his case for a new trial free from the taint of the flawed

forensic evidence, and with a defense armed with the evidence underlying the

multiple Brady claims that will considerably weaken each aspect of the State’s




                                       - 25 -
case. When the numerous Brady claims are considered cumulatively with the

newly discovered evidence claim, justice requires that Smith be given a new trial.

      Accordingly, I dissent.

An Appeal from the Circuit Court in and for Pinellas County,
     Mark Irwin Shames, Judge - Case No. 521983CF002653XXXXNO

Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




                                       - 26 -
