           Supreme Court of Florida
                                   ____________

                                   No. SC16-576
                                   ____________


                               ERNEST D. SUGGS,
                                   Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                [November 9, 2017]

PER CURIAM.

      Ernest D. Suggs, a prisoner under sentence of death, appeals the circuit

court’s denial of his successive motion for postconviction relief filed pursuant to

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

3(b)(1), Fla. Const. We affirm for the reasons that follow.

                                 BACKGROUND

      We previously summarized the evidence presented at Suggs’s trial as

follows:

             Pauline Casey, the victim, worked at the Teddy Bear Bar
             in Walton County. On the evening of August 6, 1990,
             the bar was found abandoned, the door to the bar was
             ajar, cash was missing from the bar, and the victim’s car,
purse, and keys were found at the bar. The victim was
missing. Ray Hamilton, the victim’s neighbor, told
police that he last saw the victim shooting pool with an
unidentified customer when he left the bar earlier that
night. Based on Hamilton’s description of the customer
and the customer’s vehicle, police issued a BOLO for the
customer. Subsequently, a police officer stopped a
vehicle after determining that it matched the BOLO
description.

       The driver of the vehicle was identified as the
appellant, Ernest Suggs. Although he was not then under
arrest, Suggs allowed the police to search his vehicle and
his home. While searching Suggs’ home, the police
found, in a bathroom sink, approximately $170 cash in
wet bills, consisting of a few twenty-, ten-, and five-
dollar bills and fifty-five one-dollar bills.

       Meanwhile, police obtained an imprint of the tires
on Suggs’ vehicle and began looking for similar tire
tracks on local dirt roads. Similar tire tracks were found
on a dirt road located four to five miles from the Teddy
Bear Bar. The tracks turned near a power line, and the
victim’s body was found about twenty to twenty-five feet
from the road. The victim had been stabbed twice in the
neck and once in the back; the cause of death was loss of
blood caused by these stab wounds. After the victim was
found, Suggs was arrested for her murder.

       In addition to the cash and tire tracks, police
obtained the following evidence connecting Suggs to the
murder: one of the three known keys to the bar and a beer
glass similar to those used at the bar were found in the
bay behind Suggs’ home; the victim’s palm and
fingerprints were found in Suggs’ vehicle; and a
serologist found a bloodstain on Suggs’ shirt that
matched the victim’s blood. Additionally, after his
arrest, Suggs told two cellmates that he killed the victim.

     In his defense, Suggs contended that he was
framed and made the following claims: that he had small
                           -2-
            bills because his parents had paid him in cash for
            working on their dock; that the money was wet because
            he fell in the water while working on the dock; that other
            vehicles have tires similar to the tires on his vehicle; that
            the tires on his vehicle leave a specific overlap pattern
            because of the wear on them and that no such overlap
            pattern was found at the scene; that the underbrush on his
            vehicle did not match any brush from the area of the
            crime scene; that no fibers or hairs from the victim were
            found in his vehicle; that the fingerprints in his vehicle
            could have been left at any time before the day of the
            murder; that the enzyme from the blood stain on his shirt
            matches not only the victim but also 90% of the
            population; that the shirt from which the blood was taken
            was not properly stored and that the stain could come
            from any bodily fluid; that the tests performed on the
            blood stain produced inconclusive results, including the
            fact that the stain could have been a mixed stain of saliva
            and hamburger; that a news conference was held
            regarding his arrest twenty-four hours before the bay
            behind his house was searched, which provided ample
            time for someone to deposit the key and glass there; and
            that his two cellmates lied, gave inconsistent testimony,
            and received reduced sentences because of their
            testimony. Additionally, Suggs contended that both Ray
            Hamilton and Steve Casey, the victim’s husband, could
            have committed the murder (with Casey having life
            insurance as a motive), and that those individuals were
            being pursued as suspects until his arrest, but as soon as
            he was arrested, police dropped their investigation of
            those suspects.

                  The State countered this defense by showing that
            the dock on which Suggs was purportedly working
            contained no new wood; that the tire tracks did in fact
            match Suggs’ vehicle; and that the enzyme from the
            blood did not come from Suggs.

Suggs v. State, 644 So. 2d 64, 65-66 (Fla. 1994). Suggs was convicted of first-

degree murder, kidnapping, and robbery. Id. at 66.
                                        -3-
      We have previously summarized the penalty-phase evidence as follows:

                    At the penalty-phase proceeding, one of Suggs’
             cellmates testified that Suggs told him he murdered the
             victim because he did not want to leave a witness.
             Additionally, the State entered into evidence a book
             entitled Deal the First Deadly Blow, which they had
             taken from Suggs’ house. The State used this evidence to
             show that Suggs planned how he would kill the victim.
             The State also introduced evidence that Suggs was
             convicted of first-degree murder and attempted murder in
             1979 and that he was on parole at the time of the murder
             in this case. Id. at 66.

      After the penalty-phase proceeding, the jury recommended a death sentence

by a seven-to-five vote, and the trial court sentenced Suggs to death, finding seven

aggravating circumstances1 and three mitigating circumstances.2 Id.


      1. The trial court found the following aggravating circumstances:

      (1) A capital felony was committed by Suggs while under sentence of
      imprisonment; (2) Suggs was previously convicted of another capital
      felony and a felony involving the use or threat of violence to the
      person; (3) the crime for which Suggs is to be sentenced was
      committed while he was engaged in the commission of the crime of
      kidnapping; (4) the capital felony was committed for the purpose of
      avoiding or preventing a lawful arrest; (5) the capital felony was
      committed for pecuniary gain; (6) the capital felony was especially
      heinous, atrocious, or cruel; (7) the capital felony was a homicide and
      was committed in a cold, calculated, and premeditated manner
      without any pretense of moral or legal justification.

Suggs, 644 So. 2d at 66 n.1.

      2. The trial court found the following mitigating circumstances:

      (1) The capacity of Suggs to appreciate the criminality of his conduct
      or to conform his conduct to the requirements of law was substantially
                                        -4-
       We affirmed Suggs’s conviction and death sentence on direct appeal. Id.

Thereafter, we affirmed the denial of his initial motion for postconviction relief.

Suggs v. State, 923 So. 2d 419 (Fla. 2005). Suggs now appeals the summary

denial of his successive motion for postconviction relief, filed October 27, 2015,

which raised five claims of newly discovered evidence or Brady3 violations

concerning the following matters: (1) allegations that the victim’s husband, whom

Suggs argued at trial may have murdered her, sexually abused the victim’s

daughter; (2) activities and statements of law enforcement officers involved in the

search of the bay; (3) recent statements by Suggs’s sentencing judge; (4) the

involvement in Suggs’s case of FBI analyst Michael Malone, whose work has been

discredited in other cases; and (5) an investigation of the Walton County Sheriff’s

Department by the Florida Department of Law Enforcement (FDLE) during the

period when Suggs was being investigated, along with evidence of misconduct by

the Sheriff and Suggs’s prosecutor in a contemporaneous case.




       impaired (he had been drinking at the time of the incident); (2) Suggs’
       family background (he came from a good family); and (3) Suggs’
       employment background (he was a hard worker).

Id. at 66 n.2.
       3. Brady v. Maryland, 373 U.S. 83 (1963).

                                         -5-
                                    ANALYSIS

      We review the circuit court’s summary denial of each of these claims in

turn, followed by a conclusion as to Suggs’s argument that the cumulative effect of

the new evidence requires a new trial, applying the de novo standard of review.

Hunter v. State, 29 So. 3d 256, 261 (Fla. 2008). This standard requires us to accept

the allegations of Suggs’s motion as true to the extent that they are not

conclusively refuted by the record and to uphold the circuit court’s ruling if

Suggs’s claims are legally insufficient or their allegations are conclusively refuted

by the record. See id.

            1. Newly Discovered Evidence of the Husband’s Motive

      Suggs’s first claim is based on information obtained from the victim’s

daughter relating to alleged sexual abuse of the victim’s daughter by the victim’s

husband, whom Suggs argued at trial could have been the real murderer. To

warrant relief, newly discovered evidence must “be of such nature that it would

probably produce an acquittal on retrial.” Jones v. State, 709 So. 2d 512, 521-22

(Fla. 1998). Suggs claims that the information concerning the alleged sexual abuse

is newly discovered evidence of the victim’s husband’s motive for murdering her.

However, Suggs’s allegations do not indicate that the victim knew about the

alleged sexual abuse of her daughter or provide any connection between the

alleged abuse and a motive to murder the victim. Therefore, in a new trial, this

information would be inadmissible as irrelevant and substantially more unfairly
                                         -6-
prejudicial than probative. See §§ 90.401, 90.403, Fla. Stat. (2017). As a result, it

would not “probably produce an acquittal on retrial,” see Jones, 709 So. 2d at 521-

22, and this claim was properly denied.

                 2. Brady Claim Concerning the Search of the Bay

      Suggs’s second claim is presented under Brady v. Maryland, 373 U.S. 83

(1963), and concerns the discovery of the key during the search of the bay behind

his house and information Suggs has recently obtained from Deputy Wyatt

Henderson of the Walton County Sheriff’s Department, who participated in the

search as a diver. The key was relevant not only because it fit a lock at the bar

from which the victim was kidnapped, but also because a witness saw the victim

place a key to that lock on the cash register earlier in the night, and no such key

was found at the bar, among the victim’s belongings, or on the victim in the

investigation.

      The search of the bay began on August 8, 1990, with the goal of finding the

murder weapon, which was never recovered. According to the trial evidence, the

search was conducted methodically, with four divers positioned along a rope a few

feet apart and moving in an arch pattern from a fixed point at one end of the rope

and then extending the rope after completing a full sweep. A drinking glass similar

to the glasses used at the bar from which the victim was kidnapped was found on

the first day. That afternoon, Investigator Steve Sunday of the Walton County

Sheriff’s Department obtained a key from the bar owner, stating in his report that
                                          -7-
the key would be “used to give the divers and other officers a description of the

key to look for.” Henderson testified at trial that the dive team was not initially

told to search for a key.

      Testimony at trial established that the search of the bay continued on the

morning of August 9, 1990, at the request of Captain Brad Trusty of the Walton

County Sheriff’s Department, even though the area had not been secured overnight

on August 8, a press conference had been held naming Suggs as the suspect,

Suggs’s home was identifiable, and the bay was accessible to anyone. For the

second day, the team used one additional diver. All the divers who testified,

including Henderson, explained that on the morning of August 9, the search

proceeded continuously from the area that had been searched the day before,

except that the divers backed up and searched an overlapping segment of the bay

due to poor visibility during the latter part of the prior day’s search. The bar key

was found during the search of the overlapping section by the diver who was the

farthest out into the bay. That diver testified that the key was just beyond his

position at the end of the rope.

      In Suggs’s successive motion for postconviction relief, he alleges that Wyatt

Henderson has recently revealed that Captain Trusty told the dive team where in

the bay to find the key; that Captain Trusty explained that Suggs had a water line

on his pants during his interview, suggesting that evidence may be found farther

out in the bay, even though Suggs was wearing black nylon shorts when he was
                                         -8-
arrested; and that the divers were never shown the key that Investigator Sunday

obtained on August 8. Suggs argues that this new information obtained from

Henderson shows a Brady violation. We disagree because this information is not

material under the Brady standard, which requires showing “ ‘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)). To meet this

standard, a defendant must demonstrate that the suppressed evidence “ ‘could

reasonably be taken to put the whole case in such a different light as to undermine

the confidence in the verdict.’ ” Id. (quoting Allen v. State, 854 So. 2d 1255, 1260

(Fla. 2003)).

      In reaching the conclusion that the information alleged to have been learned

from Henderson is not material, we find it significant that Suggs’s successive

motion merely summarizes Henderson’s recent statements, with no affidavit from

Henderson. The successive motion does not purport to quote Henderson and in no

way indicates that Henderson has recanted his trial testimony. Given these facts,

the “new evidence” is clearly not material because it is consistent with the

evidence at trial and would not be exculpatory.

      First, Henderson is purported to have said—in Suggs’s words—that Captain

Trusty told the dive team where to find the key. Captain Trusty testified at trial

that he requested the continuation of the search after the first day. Henderson and
                                         -9-
others testified at trial that the search team essentially started back the second day

where they had ended the search the night before, as darkness approached. Then,

the team quickly found the key near where they had stopped the search the night

before, either a little farther out (and therefore deeper) in the bay or in an overlap

area which had been searched on the last pass of the prior evening when sunlight

was diminishing and visibility was poor. Henderson is also alleged to have said

that Trusty wanted the search to continue into deeper water because of a water line

on Suggs’s pants. Without a recantation of Henderson’s trial testimony, which

indicates a natural progression of the search in the normal course of an

investigation, and only a summary of this “new” information in Suggs’s words, we

readily find these statements immaterial because they can be viewed in a manner

that is completely consistent with the trial testimony and, without a recantation by

Henderson, would necessarily have to be viewed that way. In fact, Suggs explains

that, if Henderson had “been asked about why the search was expanded, he would

have testified to the information conveyed to him by Captain Trusty.”

      With respect to the water stain, Suggs suggests that this statement (attributed

by Henderson to Trusty) could not be true (and, therefore, could have been used to

impeach Trusty), either because a water stain could not be seen on black fabric or

because a water line would not have reached the fabric of shorts. The first

inference cannot form a basis for relief because it is too speculative. Seawater

contains salts and “other substances, including dissolved inorganic and organic
                                         - 10 -
materials” and particulates, Fred T. Mackenzie, et al., Seawater, Encyc. Britannica,

http://www.britannica.com/science/seawater (last visited October 30, 2017), and

salt dissolved in water crystallizes and remains behind as the hydrogen dioxide

evaporates, see Noushine Shahidzadeh et al., Salt stains from evaporating droplets,

Scientific Reports (2015), http://www.nature.com/articles/srep10335 (last visited

October 30, 2017) (studying stain patterns left through this commonly observed

phenomenon). Further, depending on the composition of the bay water at the

relevant location and time, it is possible that other solids would also remain after

evaporation of the hydrogen dioxide, and either salt or other solids could be visible

on dark fabric. With respect to both inferences, even Suggs admitted that he had

been in the bay, in his clothing, the night of his arrest—which is how the money

found in his home became wet (indicating that he would have been deep enough

for the water to reach the pockets of his pants). Additionally, because Captain

Trusty did not testify one way or the other about a water line, any impeachment

value of this evidence would have to follow questioning by Suggs of Captain

Trusty as to the reason he ordered the search to continue on the second day. To

determine whether this questioning would have any impeachment value at all, we

would have to speculate as to how it would progress. Therefore, the impeachment

value of the water-line information does not create a reasonable probability of a

different outcome. Cf. Wright v. State, 857 So. 2d 861, 870 (Fla. 2003) (finding


                                        - 11 -
no Brady violation where “the exculpatory effect” of the evidence was “merely

speculative”).

      The fact that the bar key obtained by Investigator Sunday was not shown to

the search team of divers is similarly immaterial because it is consistent with the

trial testimony. No one at trial testified that the key was shown to the divers, and

the jury was aware that Investigator Sunday obtained a key from the bar owner the

day before a key was found in the bay. And, Investigator Sunday’s report does not

say that he intended to show the divers the key; it states that he obtained the key to

give the divers a description, and it notes the physical characteristics of the key as

being silver with a round head.

      In short, Suggs’s new allegations concerning the key are consistent with the

explanation of the search presented at trial and, therefore, our confidence in the

verdict is not undermined. See Mordenti, 894 So. 2d at 170 (explaining that

alleged Brady evidence is material only if it is of such a nature that it “ ‘could

reasonably be taken to put the whole case in such a different light as to undermine

the confidence in the verdict’ ” (quoting Allen, 854 So. 2d at 1260)). Accordingly,

this claim was properly denied.

             3. Newly Discovered Evidence Concerning Sentencing Judge

      Suggs’s third claim is that newly discovered evidence reveals that his

sentencing judge failed to exercise her independent judgment over the decision to

sentence him to death under the law as it existed when he was sentenced. Suggs
                                         - 12 -
quotes statements his sentencing judge made in a memoir and a letter to the

Governor in support of commuting Suggs’s sentence to life, arguing that she not

only deferred to the jury’s vote, contrary to section 921.141(3), Florida Statutes

(1989), and Ross v. State, 386 So. 2d 1191 (Fla. 1980), but also that she shifted her

responsibility to the appellate court, contrary to Caldwell v. Mississippi, 472 U.S.

320 (1985). This claim is meritless. Suggs’s sentencing judge issued a detailed

order showing the requisite findings, and her recent revelation of her thought

process at the time is not the type of evidence that would probably change the

outcome at a new sentencing proceeding, as it would not be admissible evidence.

See Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (requiring that newly

discovered evidence related to sentencing be of such a nature that it would

“probably yield a less severe sentence”). Moreover, the sentencing judge’s thought

process inhered in her decision and is not subject to review. Cf. Foster v. State,

132 So. 3d 40, 64-65 (Fla. 2013) (explaining that jurors’ private thoughts inhere in

the verdict). For these reasons, Suggs’s claim is distinguishable from cases where

relief has been warranted due to postconviction revelations that prosecutors drafted

sentencing orders imposing death without input from the sentencing judges or after

ex parte communications. See Roberts v. State, 840 So. 2d 962, 972-73 (Fla.

2002) (ex parte communication); Card v. State, 652 So. 2d 344, 345-46 (Fla. 1995)

(lack of input). Accordingly, this claim was properly denied.


                                        - 13 -
                    4. Brady Claim Concerning FBI Agent Malone

      Suggs’s fourth claim is that the State committed a Brady violation by using

FBI Agent Michael Malone to test evidence for Suggs’s case and not notifying

Suggs when Malone was later investigated and found to have performed unreliable

work in numerous cases. This claim, too, fails the Brady materiality requirement.

Malone concluded that none of the hair found on the victim’s body matched

Suggs’s hair, and Suggs was aware of this conclusion at the time of trial. Given

that Malone did not testify in Suggs’s trial, that Malone did not provide any

evidence inculpating him, and that Suggs has not provided a non-speculative

reason to believe that any hair other than the victim’s was found on the victim’s

body, there is no reasonable probability that Suggs’s allegations concerning

Malone would have produced a different verdict. Therefore, our confidence in the

verdict is not undermined. See Bolin v. State, 184 So. 3d 492, 500-01 (Fla. 2015)

(holding that Malone’s contamination of evidence in a separate case was not

relevant in a case where Malone had the limited role of receiving evidence,

checking for hair and fibers, and forwarding the evidence to other examiners and

did not testify), cert. denied, 136 S. Ct. 790 (2016); Rhodes v. State, 986 So. 2d

501, 506-08 (Fla. 2008) (finding a lack of Brady materiality in the revelation that

Malone falsely testified that hairs in the victim’s hand belonged to the victim,

where postconviction testing was unable to exclude either the victim or the

defendant as the source of the hair). Accordingly, this claim was properly denied.
                                        - 14 -
          5. Brady Claim Concerning Misconduct of Sheriff’s Department and
                                 Prosecutor

      Suggs’s fifth claim is that the State committed a Brady violation by failing to

disclose that the FDLE was investigating the Walton County Sheriff’s Department

for misconduct during the period when Suggs was being investigated and

prosecuted and that, according to testimony from collateral proceedings in another

case, both the Sheriff and the assistant state attorney who prosecuted Suggs

engaged in misconduct in a contemporaneous case.4 If Suggs had known of the

FDLE’s investigation or the alleged misconduct by the Sheriff and prosecutor, that

knowledge does not undermine our confidence in the verdict, as the related

evidence would not have been admissible at Suggs’s trial as either substantive or

impeachment evidence. See §§ 90.404(1), (2)(a), Fla. Stat. (1989) (providing that

evidence is inadmissible when its sole relevance is to prove bad character or

propensity); Bogle v. State, 213 So. 3d 833, 840 (Fla.) (recognizing that “particular

acts of misconduct” are inadmissible for impeachment purposes), petition for cert.

filed, No. 17-6329 (U.S. Sept. 7, 2017). Accordingly, this claim was properly

denied.




       4. Suggs has not alleged that the FDLE found misconduct in either his case
or the contemporaneous case.

                                       - 15 -
                  6. Cumulative Effect of the New Allegations

      Finally, Suggs argues that when all the allegations presented in this

postconviction proceeding are considered cumulatively with the trial evidence and

other admissible evidence developed in prior postconviction proceedings, he is

entitled to a new trial. We disagree. As explained above, the only additional

evidence presented in this proceeding potentially admissible in any retrial is that

regarding the key addressed in claim two, and there is no reasonable probability

that, had this evidence been disclosed to the defense, the result of the trial would

have been different. Therefore, our confidence in the verdict is not undermined.

                                  CONCLUSION

      For the foregoing reasons, we affirm the summary denial of Suggs’s

successive motion for postconviction relief.

      It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Walton County,
     Kelvin Clyde Wells, Judge - Case No. 661990CF000338CFAXMX

Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B. Macready, and
Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,

      for Appellant



                                        - 16 -
Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




                                     - 17 -
