          Supreme Court of Florida
                                   ____________

                                    No. SC18-88
                                   ____________

                               TROY MERCK, JR.,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                December 28, 2018

PER CURIAM.

      This case is before the Court on appeal from an order denying Troy Merck’s

successive motion to vacate a judgment of conviction of first-degree murder under

Florida Rule of Criminal Procedure 3.851. Because the order concerns

postconviction relief from a capital conviction for which a sentence of death was

imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of

the Florida Constitution.1 Merck contends that the postconviction court erred in




      1. The State contests this Court’s jurisdiction because Merck is awaiting
resentencing under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202
So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). However, the pending
denying his overlapping claims of newly discovered evidence and violations of

Giglio v. United States, 405 U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83

(1963). For the reasons explained below, we affirm.

                FACTS AND PROCEDURAL BACKGROUND

      Merck was convicted of the first-degree murder of James Newton and

sentenced to death, and his conviction was affirmed on direct appeal in 1995.

Merck v. State (Merck I), 664 So. 2d 939, 940 (Fla. 1995). We have since affirmed

the denial of Merck’s initial motion for postconviction relief and denied his

petition for writ of habeas corpus. Merck v. State (Merck IV), 124 So. 3d 785, 790

(Fla. 2013). However, errors in the sentencing process have required resentencing

on two prior occasions, Merck I, 664 So. 2d at 944; Merck v. State (Merck II), 763

So. 2d 295, 299 (Fla. 2000), and Merck is presently awaiting his third resentencing

due to Hurst error in his most recent penalty phase. 2




resentencing does not affect our exclusive jurisdiction over this appeal. See Farina
v. State, 191 So. 3d 454, 455 (Fla. 2016).
       2. Merck’s most recent penalty phase took place in 2004, and the resulting
death sentence became final in 2008. Merck v. State (Merck III), 975 So. 2d 1054
(Fla. 2007), cert. denied, 555 U.S. 840 (2008). The trial court granted Merck’s
postconviction motion seeking Hurst relief before ruling on the motion at issue in
this appeal. The State voluntarily dismissed its appeal from the order granting
Merck Hurst relief.


                                         -2-
      The subject of this appeal is Merck’s first successive motion for

postconviction relief. In that motion, Merck alleged violations of Giglio and

Brady, as well as a more general claim of newly discovered evidence, based on

information his postconviction investigator recently obtained from Neil Thomas, a

key witness for the State at Merck’s trial. Because Merck has been granted a new

penalty phase, the issues addressed in this decision pertain to his conviction only.

      In Merck’s first appeal, we described the facts of the crime as follows:

      Newton died after Merck repeatedly stabbed him . . . in the parking lot
      of a bar in Pinellas County shortly after 2 a.m. on October [11], 1991.
      The bar had closed at 2 a.m., and several patrons of the bar remained
      in the parking lot. The evidence was that several of these individuals,
      including the victim, Merck, and those who witnessed the murder, had
      consumed a substantial amount of alcohol during the evening while at
      the bar.
             After closing, Merck and his companion [Thomas], both of
      whom had recently come to Florida from North Carolina, were in the
      bar’s parking lot. The two were either close to or leaning on a vehicle
      in which several people were sitting. One of the car’s occupants
      asked them not to lean on the car. Merck and [Thomas] sarcastically
      apologized. The victim approached the car and began talking to the
      car’s owner [Katherine Sullivan]. When Merck overheard the owner
      congratulate the victim on his birthday, Merck made a snide remark.
      The victim responded by telling Merck to mind his own business.
      Merck attempted to provoke the victim to fight; however, the victim
      refused.
             Merck then asked [Thomas] for the keys to the car in which he
      had come to the bar [which was a Mercury Bobcat]. At the car,
      Merck unlocked the passenger-side door and took off his shirt and
      threw it in the back seat. Thereafter, Merck approached the victim,
      telling the victim that Merck was going to “teach him how to bleed.”
      Merck rushed the victim and began hitting him in the back with
      punches. [Sullivan] testified that she saw a glint of light from some
      sort of blade and saw blood spots on the victim’s back. The victim

                                        -3-
      fell to the ground and died from multiple stab wounds; the main fatal
      wound was to the neck.

Merck I, 664 So. 2d at 940-41.

      Merck had two theories of defense. First, he argued that there was a

reasonable doubt as to whether he, rather than Thomas, was the attacker. Second,

he argued that if he was the attacker, he was so intoxicated that he “blacked out”

and did not remember it and, therefore, could not have formed the intent to commit

premeditated first-degree murder.3

      The trial evidence showed that Thomas and Merck spent approximately four

hours at the bar before the murder. Merck testified that he consumed twelve to

fifteen beers and eight to ten shots of liquor during this time. In contrast, Thomas

testified that he and Merck each consumed approximately six beers and two or

three shots of liquor. Thomas testified that he felt “buzzed pretty good” and that

Merck did not show any effects from his consumption of alcohol. Merck did not

seem to be having any trouble walking, standing, or talking, and Merck responded

appropriately when Thomas spoke to him. Sullivan also testified that the attacker,




      3. Voluntary intoxication was a defense to specific-intent crimes at the time
of Merck’s trial, see Gardner v. State, 480 So. 2d 91, 92 (Fla. 1985), but that
defense has since been abrogated by statute. § 775.051, Fla. Stat. (2018); ch. 99-
174, § 1, Laws of Fla. (creating section 775.051, effective October 1, 1999).


                                        -4-
whom she identified as Merck both in court and before trial, had no trouble

walking or talking. 4

      According to Thomas, after the attack was over, Merck urged him to

“[c]ome on,” and Thomas then got into the Bobcat and drove away with Merck,

asking Merck if he had stabbed Newton. Thomas recalled that Merck held up a

bloody knife, announced that he had killed Newton, and said that if he had not

succeeded in killing Newton, he would go to the hospital and “finish what [he]

started.” Thomas testified that Merck described the attack repeatedly from that

point forward. At some point, Merck explained to Thomas that he decided to kill

Newton when Newton failed to back down from the confrontation as Merck

approached him.

      Thomas testified that after escaping the scene, he parked the Bobcat at an

apartment complex, where he and Merck began to change clothes. Thomas

recounted that as he and Merck were in the parking lot, Thomas saw a patrol car

slam on its brakes and turn around, at which point he and Merck ran. They hid in

some bushes and then made their way to a Burger King, where they called a cab.

Merck and Thomas had the driver drop them off at a bowling alley across the street


      4. No witness identified Thomas as the person who stabbed and killed
Newton. However, Merck argues now, as he did to the jury, that certain aspects of
the eyewitness testimony would point to Thomas as the perpetrator. Although we
do not find it necessary to detail this evidence, we have not overlooked it in
considering materiality or the probability of an acquittal on retrial.

                                       -5-
from a motel where they intended to stay. However, before going to the motel,

they played a game of pool, and Merck had no difficulty with the game.

According to Thomas, once they arrived at the motel, Merck continued describing

the attack. Thomas testified that Merck did not pass out or start sleeping or

“anything like that” and that Merck did not seem to have any difficulty

remembering what happened.

      Contrary to Thomas’s account of Merck’s actions and demeanor, Merck

testified that after he heard Thomas calling Newton a name, he leaned down to

pick something up and that the next thing he remembers is leaning on the Bobcat

and hearing Thomas tell him to hurry up and change clothes. Merck testified that

he remembered running with Thomas when they saw a patrol car. He also testified

that he remembered going to “a Hardee’s or something,” lying in some bushes, and

taking a cab to a bowling alley where he went in and shot pool. The next thing he

remembered after that was waking up the next morning at a motel. According to

Merck, after he told Thomas he did not remember the night before, Thomas told

him that they had been in a fight and, later, that Merck had stabbed someone.

      Thomas and Merck both testified that three females joined them at the motel

during the weekend after the stabbing. Two of these females testified that,

although Merck described the stabbing and claimed to have done it, he was often

interrupted by Thomas, who supplied and corrected details of Merck’s account


                                        -6-
while Merck looked as though he did not really believe he did what Thomas

attributed to him. The third female contradicted this testimony, stating that

Thomas did not take part in recounting the incident.

      A couple of days after the stabbing, Thomas walked away from the motel

and arranged to be picked up at another location. When his contact arrived, he was

advised that the police were on their way as well. Thomas was reluctant to talk to

the police at first, but he ultimately told the police where Merck was and learned a

few minutes later that Merck was in custody. Thomas gave a sworn statement that

same day, giving essentially the same account that he later presented at trial. At

trial, Thomas testified that no one had threatened him to get him to “tell what [he]

knew about the incident.”

      GIGLIO, BRADY, AND NEWLY DISCOVERED EVIDENCE CLAIMS

      The successive postconviction motion at issue in this appeal relates to

Thomas’s testimony concerning Merck’s level of intoxication, as well as Thomas’s

motivation to testify and to minimize Merck’s level of intoxication. The

postconviction court granted Merck an evidentiary hearing, where it received the

testimony of Thomas, as well as Merck’s trial counsel, Merck’s initial

postconviction counsel, and Merck’s current postconviction investigator. Merck

relied on portions of this testimony to support each of his claims: a Giglio claim, a




                                        -7-
Brady claim, and a newly discovered evidence claim. However, the main

substance of each claim is based on Thomas’s testimony.

      At the evidentiary hearing, Thomas testified that the State had advised him

that if he did not attend Merck’s trial to testify, then a “protective custody warrant”

would be issued and he would “be held in jail until [he] did testify.” Merck

submitted into evidence a motion the State had filed under a case styled against

Thomas, indicating that Thomas was a material witness. Thomas confirmed that

this filing was the reason he participated in the trial. Indeed, he had failed to

appear to testify in an earlier trial of this case, which resulted in a hung jury.

      Regarding the substance of his trial testimony, Thomas testified at the

evidentiary hearing that he had always been “bothered” by a concern that Merck

“was probably a little bit more intoxicated than what [Thomas] had said” at trial.

He opined that Merck was “a lightweight” when it came to drinking alcohol and

that Merck was, in fact, “very, very drunk,” or “highly intoxicated,” at the time of

the stabbing. Thomas noted that he was much larger than Merck and, accordingly,

that Merck “may have been a lot drunker than [Thomas] was.” Thomas’s

recollection at the time of the evidentiary hearing was that he and Merck had been

“drinking pretty much the same amount,” although Merck also drank some tequila

and Thomas did not.




                                          -8-
      Another concern that had “stuck with [Thomas] all this time” and troubled

him was that he failed to mention a particular occurrence during his trial testimony.

Specifically, Thomas did not mention that he had “a hard time getting [Merck] to

respond to him” and to get out of the car to change clothes after the getaway.

Thomas explained that, while he was testifying previously, he had a “picture in

[his] head,” which was a memory, or a “flash in [his] mind,” of Merck “kind of

slumped over” and not responding to him. Thomas explained that he did not

mention this memory at the time because there were other questions “coming at

[him]” from the attorneys and he focused on those questions. Thomas was

equivocal concerning whether he had this memory during the guilt-phase trial or at

some other time when he was being questioned under oath. However, at one point,

he concluded that “it was the last time that [he] testified”—which the record shows

was at Merck’s most recent resentencing in 2004.

      Thomas also testified at the evidentiary hearing that, just before trial, he told

the prosecutor he was having difficulty remembering how many drinks he and

Merck had consumed on the night of the stabbing. According to Thomas, the

prosecutor responded by telling him that he “need[ed] to stick to” what he said in

his deposition. Thomas confirmed that he had taken this approach while testifying

and that he took the instruction to mean that if he could not remember something,

he should “refer to what [he] had already said because that would have been [at] an


                                         -9-
earlier time” when his recollection was better. However, Thomas also testified that

he was instructed to review the deposition to refresh his memory. Additionally, he

noted that the prosecutor had commented that his memory would have been fresher

at the time of the deposition, “or at least [at the time of] the statement that [he] had

given to police.”

      Although Thomas indicated that he understood the instruction to be that he

should repeat what he said earlier if he did not have an independent recollection, he

did not have the impression that the prosecutor was “intentionally trying to . . .

coerce [his] testimony or anything like that.” When asked if he had ever said that

he was told to minimize Merck’s level of intoxication, Thomas answered, “I may

have said that,” and then explained that he was referring to the conversation about

his failing memory as to the number of drinks he and Merck consumed and the

instruction to refer to his deposition.

      When asked if he had changed his mind about whether Merck would have

known what he was doing and remembered what he was doing, Thomas answered,

“No. Nothing else is different.” Thomas confirmed that, just as he indicated at

trial, Merck could not stop talking about the murder after Merck committed it and

that he was “rather proud of it.” Thomas also confirmed that Merck held the

bloody knife up in the car and said that if Newton was not dead, he would go to the




                                          - 10 -
hospital and finish killing him. He affirmed that he told the truth at trial to the best

of his ability and was not trying to mislead anyone.

      After the hearing, the postconviction court denied each claim, and Merck

argues on appeal that each denial was erroneous.

                                     ANALYSIS

      We address each claim in turn, reviewing the postconviction court’s factual

findings for competent, substantial evidence, Waterhouse v. State, 82 So. 3d 84,

101 (Fla. 2012) (quoting Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008)), and

its application of the law to the facts de novo. Brooks v. State, 175 So. 3d 204, 231

(Fla. 2015).

                                     Giglio Claim

      A Giglio claim consists of the following elements: “(1) the prosecutor

presented or failed to correct false testimony; (2) the prosecutor knew the

testimony was false; and (3) the false evidence was material.” Geralds v. State,

111 So. 3d 778, 791-92 (Fla. 2010) (citing Guzman v. State, 941 So. 2d 1045, 1050

(Fla. 2006)). False testimony presented in violation of Giglio is material “if there

is any reasonable likelihood that the false testimony could have affected the

judgment of the jury.” Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003) (quoting

United States v. Agurs, 427 U.S. 97, 103 (1976)). Thus, “[t]he State, as the

beneficiary of the Giglio violation, bears the burden to prove that the presentation


                                         - 11 -
of false testimony at trial was harmless beyond a reasonable doubt.” Id. (citing

United States v. Bagley, 473 U.S. 667, 679 n.9 (1985)).

      In denying Merck’s Giglio claim, the postconviction court found that Merck

failed to establish either that Thomas gave false testimony or that the State

knowingly presented false testimony. On appeal, Merck argues that the

postconviction court erred in failing to find that the State committed Giglio

violations in the following ways: (1) by presenting Thomas’s testimony about

Merck’s level of intoxication and the amount of alcohol he drank as Thomas’s

clear recollection, when, in fact, Thomas told the prosecutor that he was having

difficulty remembering and Thomas was instructed to “stick to” his deposition,

which was given only a month before trial; (2) by eliciting testimony from Thomas

that he had not been threatened as an inducement for his testimony when, in fact,

he was threatened with arrest if he failed to appear for trial; and (3) by failing to

correct Thomas’s testimony that he had not been promised anything when, in fact,

there was an undisclosed quid pro quo, as revealed by the fact that Thomas asked

for and received help with his violation of probation charge in 1997. For the

reasons explained below, these points do not establish Giglio violations.

      First, Thomas’s postconviction testimony, as construed and credited by the

postconviction court, refutes Merck’s claim that the State presented false evidence

by instructing Thomas to “stick to” his deposition concerning the amount of


                                         - 12 -
alcohol Merck consumed and his level of intoxication. Although Thomas may

have interpreted the prosecutor’s instruction as a directive to repeat what he said in

his deposition even if he did not remember the facts independently, there was a

conflict in the evidence concerning the crucial question of whether the prosecutor

intended to give such a directive and, therefore, could be said to have “knowingly”

done so. Thomas’s evidentiary-hearing testimony itself was subject to different

interpretations on this question. Also, the interpretation of the prosecutor’s

instruction as a recommendation that Thomas rely on the deposition to refresh his

memory, rather than dictate his trial testimony, was supported by Merck’s trial

counsel’s testimony that it is common practice to have witnesses review their prior

statements before they testify at trial.5

      It was for the postconviction court to resolve the factual issue concerning the

meaning of the exchange between the prosecutor and Thomas. See Porter v. State,

788 So. 2d 917, 923 (Fla. 2001) (“So long as its decisions are supported by

competent, substantial evidence, this Court will not substitute its judgment for that

of the trial court on questions of fact and, likewise, on the credibility of the

witnesses and the weight to be given to the evidence by the trial court.”). The

court resolved the issue in favor of the State’s position, crediting the portion of




      5. The prosecutor whose instruction is in question is deceased.


                                            - 13 -
Thomas’s testimony indicating that the prosecutor had told him to look at his

previous testimony to refresh his memory because that testimony was given closer

in time to the events at issue.6 Of course, such an instruction is not improper. Cf.

Wilcox v. State, 143 So. 3d 359, 378 (Fla. 2014) (recognizing the practice of

refreshing a witness’s recollection during trial, even with a writing produced by

someone else, and finding error in the trial court’s failure to allow the defendant to

do so). Merck’s argument on appeal is an improper attempt to have us reweigh the

evidence and make a different factual finding as to the nature of the instruction

given. See Porter, 788 So. 2d at 923. We decline to do so. The postconviction

court’s findings are supported by competent, substantial evidence and belie

Merck’s position.

      Second, Merck’s postconviction evidence is insufficient to establish that

Thomas testified falsely when he said that no one had threatened him to induce

him to “tell what [he] knew about the incident.” Merck argues that this testimony



       6. Merck insists that this instruction was improper and implies that it was
made in bad faith because the deposition was taken only one month before trial.
However, Thomas’s testimony indicates that he did not understand the difference
between his deposition and the statement that was taken under oath in a question-
and-answer format on October 14, 1991, just days after the murder. The
deposition and the statement were substantively the same, and on at least one
occasion during his recent postconviction testimony, Thomas referred to the
statement as a deposition. He also suggested at one point that the instruction to
rely on his prior testimony may have been given to him before one of Merck’s
resentencing proceedings, in reference to his original trial testimony.


                                        - 14 -
was false because the State had threatened to hold Thomas in jail until he testified

if he failed to appear for Merck’s second trial. However, this evidence does not

support a conclusion that Thomas testified falsely when he said no one threatened

him to get him to “tell what [he] knew about the incident,” as the trial evidence

shows that Thomas spoke to the police voluntarily shortly after he left Merck’s

company. The record also shows that Thomas gave a sworn statement that same

day and provided essentially the same account that he told at trial. Thus, the record

supports the conclusion that Thomas volunteered to tell what he knew about the

incident. Furthermore, the trial testimony concerning threats can be reasonably

understood as referring to the substance of Thomas’s testimony, not the

compulsion of his attendance at trial. For these reasons, the postconviction court’s

finding that Thomas did not testify falsely is supported by the record and is not

undermined by the evidence that Thomas’s attendance at trial was compelled by

the threat of arrest.

       Third, Merck has failed to establish a Giglio violation concerning an alleged

quid pro quo agreement between Thomas and the prosecutor, which Merck says is

evidenced by assistance Thomas received from Merck’s prosecutor in 1997 in

resolving an unrelated charge of violation of probation. This claim is untimely

because Thomas testified about the assistance he received with the violation of

probation in 2004 at Merck’s second resentencing. See Jimenez v. State, 997 So.


                                        - 15 -
2d 1056, 1064 (Fla. 2008) (citing Mills v. State, 684 So. 2d 801, 804-05 (Fla.

1996)) (explaining that a successive motion for postconviction relief alleging

newly discovered evidence in a death-penalty case is untimely if it is not filed

within one year of the date the claim became discoverable through due diligence).

However, even if this claim were not untimely, the evidence does not establish a

quid pro quo agreement. Thomas testified that he reached out to the prosecutor on

his own initiative and was told that he should not be doing so but that the

prosecutor would “see what he could do,” and this event occurred long after

Merck’s trial.

      In addition, Merck argues that this evidence must be considered

cumulatively with other evidence that he presented previously in postconviction

proceedings and evaluated under the Giglio standard of materiality. However, as

shown by the foregoing analysis, the motion under consideration does not involve

any Giglio evidence. Thus, the cumulative claim fails.

      For the foregoing reasons, Merck’s Giglio claim is without merit.

                                    Brady Claim

      A Brady claim has three elements: (1) evidence must be identified that

would have been favorable to the defense because it was either exculpatory or

impeaching; (2) the defendant must show that the State suppressed the evidence,

either willfully or inadvertently; and (3) the defendant must show that he was


                                        - 16 -
prejudiced by the suppression of the evidence. Strickler v. Greene, 527 U.S. 263,

281-82 (1999); see Brady, 373 U.S. at 87. The prejudice prong requires a showing

that “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, 527 U.S. at 280); see also

Bagley, 473 U.S. at 682. This standard is met by showing that “the favorable

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

as to undermine confidence in the verdict.” Mordenti, 894 So. 2d at 170 (quoting

Allen v. State, 854 So. 2d 1255, 1260 (Fla. 2003)); see Kyles v. Whitley, 514 U.S.

419, 434 (1995).

      Merck contends that the postconviction court erred by failing to rule that the

following evidence constitutes Brady material: (1) the instruction to Thomas to

“stick to” his deposition testimony; (2) a recollection Thomas had that Merck was

slumped over and nonresponsive during the getaway, which Merck argues was

inadvertently suppressed as a result of the instruction to “stick to” the deposition

testimony; (3) the instruction that Thomas would be arrested if he failed to appear;

and (4) Thomas’s statement to the prosecutor before trial that he was having

difficulty remembering how much Merck drank. For the reasons provided below,

we disagree.




                                        - 17 -
      First, the instruction to “stick to” Thomas’s deposition testimony does not

constitute Brady material. As explained above, the postconviction court found that

this instruction was nothing more than a direction to rely on prior testimony to

refresh Thomas’s recollection, and this finding is supported by competent,

substantial evidence. Therefore, Merck has not established the first prong of

Brady.

      Second, as to Thomas’s memory of Merck’s slumping over and not

responding to instructions to change clothes, the postconviction court found, and

Thomas’s testimony supports, that the prosecutor did not know about this

recollection. Further, the postconviction court found, and Thomas’s testimony

supports, that Thomas never told the prosecutor about it and that he did not have

this recollection until after his guilt-phase testimony. Although Merck emphasizes

portions of Thomas’s evidentiary-hearing testimony that would support a finding

that he had this memory during his guilt-phase trial testimony, this emphasis is an

improper attempt to have this Court reweigh the evidence. See Porter, 788 So. 2d

at 923. The pertinent legal principle to apply to the facts found by the

postconviction court on this matter is that “[a] Brady violation occurs ‘when the

government fails to disclose evidence materially favorable to the accused.’ ” Hurst

v. State, 18 So. 3d 975, 988 (Fla. 2009) (quoting Youngblood v. West Virginia, 547

U.S. 867, 869-70 (2006)). Because neither the prosecutor nor any other


                                        - 18 -
representative of the State knew about the slumping incident, the State cannot be

said to have failed to disclose it. Therefore, Merck has not established the second

prong of Brady.

      Merck argues that the State did not have to know about this information to

suppress it, as the Brady test for suppression includes inadvertent suppression, and

one need not know about a fact to inadvertently suppress it. Assuming arguendo

that this position could be valid under some circumstances, the evidence Merck

presented at the postconviction hearing does not support such a theory of

suppression. Merck’s counsel attempted to elicit testimony from Thomas that the

prosecutor’s instruction caused him not to reveal the slumping incident at trial, but

Thomas did not confirm this suggestion. This fact, along with the finding and

evidence that Thomas did not have this recollection until after the guilt phase,

shows that Merck failed to establish his theory of suppression as to this issue.

      Third, as to the instruction that Thomas would be arrested if he failed to

appear, the State correctly points out that Merck’s postconviction counsel did not

ask Merck’s trial counsel if he knew about this threat. Part of establishing a Brady

claim is showing that the defense did not possess the information at issue. See

Hurst v. State, 18 So. 3d 975, 988 (Fla. 2009) (noting that the “defendant has the

burden” to prove each element of a Brady claim); Provenzano v. State, 616 So. 2d

428, 430 (Fla. 1993) (explaining that “[t]here is no Brady violation . . . where the


                                        - 19 -
defense . . . had the information”). Because Merck failed to show that his counsel

was unaware of the threat to arrest Thomas if he failed to appear or even to ask his

counsel about this matter at the evidentiary hearing, Merck failed to meet his

burden to establish that this information was suppressed.

      Fourth, as to Thomas’s statement to the prosecutor that he was having

difficulty remembering how much Merck drank, even if this fact was suppressed, it

is not significant enough to meet the Brady standard of materiality. Thomas

testified at the evidentiary hearing that, other than his perception of Merck’s level

of intoxication and memory of Merck’s slumping, nothing that he currently

remembers is different from what he previously testified to. At trial, Thomas

described Merck’s speech and motor skills as being unaffected by alcohol, stated

that Merck bragged about the stabbing immediately afterwards and during the days

that followed, and quoted statements of Merck indicating his specific intent to kill

the victim, including Merck’s explanation that he decided to kill the victim because

the victim did not back down and Merck’s statement that if the victim was not

dead, he would go to the hospital to finish killing him. Furthermore, at the

evidentiary hearing, Thomas testified again that “kind of what [he] recall[s]” is that

he and Merck “were drinking pretty much the same amount,” although Merck

“may have had a little bit more than” Thomas. That testimony is consistent with

Thomas’s trial testimony. Also, Sullivan’s observations that the attacker was


                                        - 20 -
having no trouble walking or talking corroborated Thomas’s testimony concerning

the lack of observable effects of alcohol in Merck.

      For these reasons, although questioning on this issue could have led the jury

to discredit Thomas’s testimony about the exact number of alcoholic beverages

Merck drank, it would not have affected the more pertinent question of what

observable effects the alcohol had on Merck and whether the evidence, on the

whole, showed that Merck took the actions ascribed to him and did so with the

requisite intent. Accordingly, the absence of questioning on this matter does not

undermine our confidence in the verdict.

      In addition, Merck argues that this evidence must be considered

cumulatively with other evidence that he presented previously in postconviction

proceedings and evaluated under the Brady standard of materiality. However,

Merck has not identified any suppressed evidence that was the subject of a prior

postconviction proceeding. Therefore, he has not identified any additional

evidence to be evaluated under the Brady standard of materiality in the

consideration of the motion at issue. Cf. Smith v. Sec’y Dep’t of Corr., 572 F.3d

1327, 1334 (11th Cir. 2009) (“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. That is the way a court decides if its

confidence in the guilty verdict is undermined where a suppressed-evidence type of


                                        - 21 -
Brady claim is involved, or if the suppression was harmless beyond a reasonable

doubt where a Giglio type of Brady claim is involved.”).

      For the foregoing reasons, Merck’s Brady claim lacks merit.

                        Newly Discovered Evidence Claim

      Merck further argues that, to the extent the new information he received

from Thomas does not establish a Giglio or Brady violation, it constitutes newly

discovered evidence entitling him to a retrial. We disagree because this claim is

both procedurally barred and without merit.

                                   Procedural Bar

      This claim is procedurally barred because it was not filed within one year of

the date it became discoverable through due diligence. Franqui v. State, 118 So.

3d 807, 2013 WL 2211675, at *1 (Fla. 2013) (table decision); Jimenez, 997 So. 2d

at 1064 (citing Mills, 684 So. 2d at 804-05). This claim is based on testimony

received from a witness who has been known since before trial and who was not

sought by postconviction counsel until 2014, ten years after he testified in the last

resentencing proceeding in this case. Significantly, the decision to contact Thomas

was not based on any new information, but rather, a decision by Merck’s current

counsel that contacting Thomas might be fruitful.

      Although Merck may not have been able to discover all the evidence at issue

in this claim at the time of trial (particularly that concerning the slumping incident,


                                         - 22 -
which Thomas did not remember until after the guilt-phase trial), he could have

discovered it at least between the time of the last resentencing and 2014. Because

the efforts Merck’s current counsel made to contact Thomas could have been made

at any time between the time of the last resentencing and 2014, and there is no

indication in the record that Thomas would have been less forthcoming if he had

been contacted before 2014, a claim based on information discovered from

Thomas as a result of the 2014 effort is untimely.

                                        Merits

      In any event, this claim also fails on the merits. A newly discovered

evidence claim consists of two requirements. First, the evidence “must have been

unknown by the trial court, by the 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.” Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (quoting Torres-

Arboledar v. Dugger, 636 So. 2d 1321, 1324-29 (Fla. 1994)). Second, it “must be

of such a nature that it would probably produce an acquittal on retrial.” Id. This

analysis requires consideration of all newly discovered evidence that would be

admissible at a new trial, including evidence presented in other postconviction

claims, and an evaluation of the weight of that evidence along with all the evidence

that was already admitted at trial. Id. at 521-22.




                                         - 23 -
      For the purpose of our analysis, we have broken Merck’s claim down into

six items of evidence and categorized the items according to whether they concern

alleged inaccuracies in Thomas’s testimony or a bias or motive for Thomas to

testify falsely. We discuss the two groups of items in turn and then address certain

evidence from earlier postconviction proceedings on which Merck relies,

ultimately concluding that the combined effect of the evidence that could be

presented in a new trial would not satisfy the requirements of the newly discovered

evidence test.

      The evidence related to the accuracy of Thomas’s trial testimony consists of

the following: (1) that the game of pool was several hours after the crime; (2)

Thomas’s recollection that Merck was slumped over and unresponsive in the car

immediately after the stabbing; and (3) Thomas’s current testimony that Merck

was more intoxicated than he indicated at trial and, in fact, was “highly

intoxicated” or “very, very drunk,” was a “lightweight” when it came to drinking

alcohol, and may have had more alcohol than Thomas.

      The timing of the game of pool is not newly discovered evidence: the pool

game was discussed at trial, and Thomas could have been cross-examined about

the specific timing then. Therefore, the information Merck relies on now could

have been discovered at the time of trial with the exercise of due diligence and

cannot support a new claim. See id. at 521.


                                        - 24 -
      The remaining items in this category concern information that Thomas has

said he remembered after the guilt phase or felt he did not properly convey at trial.

However, Thomas’s postconviction testimony concerning these points was

equivocal, and to the extent it is inconsistent with his trial testimony, it is not so

materially inconsistent as to create a reasonable probability of an acquittal of first-

degree murder on retrial. See id. (stating the newly discovered evidence test).

      When considered together with the remainder of the testimony that Thomas

has given throughout this case, which Thomas maintains is true, the incident of

Merck’s slumping and failing to respond is not as significant as Merck contends it

is. Thomas gave three sworn accounts of the incident up to and including the guilt-

phase trial, and he never remembered that detail or found it significant enough to

reveal, even though he was asked at the end of his pre-trial statements if there was

anything else he thought he should mention. When the slumping incident is

considered in this context and in light of Thomas’s postconviction testimony that

he was never intentionally misleading, as well as the postconviction court’s finding

that Thomas did not testify falsely, it becomes clear that this detail must have been

a momentary occurrence, not a significant event reflecting Merck’s state of mind

during the stabbing.

      The other inconsistency concerns Thomas’s characterization of Merck’s

level of intoxication and an acknowledgment that Merck may have had “a little bit


                                          - 25 -
more” to drink than Thomas said at trial. However, Thomas did not testify at the

postconviction hearing that his testimony concerning the number of drinks Merck

consumed was incorrect, and his subjective impression of Merck’s level of

intoxication is overcome by other, more concrete testimony that he gave, both at

trial and during the evidentiary hearing.

      Specifically, Thomas confirmed at the evidentiary hearing that, just as he

indicated at trial, Merck could not stop talking about the murder after he

committed it and was “rather proud of it.” He also confirmed that Merck held the

bloody knife up and said that if Newton was not dead, he would go to the hospital

to finish killing him, and that Merck even compared stabbing the victim to a sexual

experience. When asked if he had “changed [his] mind about whether [Merck]

would have known what he was doing and remembered what he was doing,”

Thomas answered, “No. Nothing else is different.”

      Given that Thomas testified that “[n]othing else is different,” his

postconviction testimony indicates that Thomas testified accurately about Merck’s

recounting of the event not only on the night of the stabbing but in the days that

followed, showing that Merck remembered it. It also indicates that Merck

explained that he made a conscious decision to kill Newton when Newton did not

show submission as Merck was advancing toward him. Furthermore, Thomas’s

testimony at trial concerning Merck’s identity as the stabber and his intent to kill


                                        - 26 -
were corroborated by other evidence. Not only did Sullivan identify Merck as the

attacker, but she also testified that she heard Merck say he was going to teach

Newton how to bleed, and another witness heard a similar statement. Additionally,

one of the three females who spent time with Merck and Thomas in the weekend

after the stabbing testified that Merck recounted the stabbing without prompting

from Thomas and took responsibility for it. In consideration of this evidence, we

conclude that the slumping incident and Thomas’s subjective impression that

Merck may have been more intoxicated than Thomas conveyed at trial would not

probably produce an acquittal if Merck were to have a new guilt-phase trial.

      The remaining items of allegedly newly discovered evidence, those relating

to Thomas’s alleged bias or motive to testify falsely, are the following: (1)

Thomas’s acknowledgement that he may have told Merck’s postconviction

investigator that he was instructed to minimize Merck’s level of intoxication; (2)

that Thomas was instructed to “stick to” his deposition testimony; and (3) that

Thomas was told he would be arrested and held until he testified if he did not

appear for Merck’s trial. These items do not combine with the previously

discussed items to show that Merck would probably be acquitted on a retrial. See

Jones, 709 So. 2d at 521 (setting forth the newly discovered evidence test).

Although Thomas acknowledged that he “may have” said that the prosecutor told

him to minimize Merck’s level of intoxication, he explained that he was referring


                                        - 27 -
to the instruction to “stick to” his deposition testimony, which the postconviction

court found was merely an instruction to use that testimony to refresh his memory.

Additionally, as indicated in our analysis of Merck’s Giglio claim, the threat of

arrest amounted to a showing that Thomas was compelled to testify at the trial, not

that he was required to testify to a particular set of facts. Therefore, this evidence

would not have impeached Thomas significantly.

      The impeachment value that Merck might gain from the use of this

information in a hypothetical new trial would be overcome by the rehabilitation

that would follow. Each of Merck’s points concerning Thomas’s bias or motive to

testify falsely relates to circumstances that arose after Thomas gave his original

sworn statement to the police. Therefore, that statement, which was consistent

with Thomas’s trial testimony, would be used to rehabilitate Thomas in a new trial

if Merck’s counsel relied on any of the information he recently obtained

concerning Thomas’s alleged bias and motive to testify falsely. See Chandler v.

State, 702 So. 2d 186, 197-98 (Fla. 1997) (explaining that prior consistent

statements are admissible as substantive evidence if “the person who made the

prior consistent statement testifies at trial and is subject to cross-examination

concerning that statement; and the statement is offered to ‘rebut an express or

implied charge of . . . improper influence, motive, or recent fabrication’ ”) (quoting

Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992)); § 90.801(2)(b), Fla. Stat.


                                         - 28 -
(2018). Thomas’s sworn statement to the police would have the effect not only of

rehabilitating him but of bolstering his trial testimony. See Rodriguez, 609 So. 2d

at 500. Given Thomas’s recent testimony confirming the most significant aspects

of his trial testimony—and, therefore, showing that he would again confirm them

at trial in response to any questions concerning pressure from the State—and the

manner in which his prior statement to the police could be used in response to such

impeachment, the newly obtained information concerning alleged improper

influence by the State does not combine with the remaining items of allegedly

newly discovered evidence to establish that Merck would probably be acquitted on

retrial. See Jones, 709 So. 2d at 521 (stating the newly discovered evidence test).

      Finally, Merck requests that, in analyzing the merits of this claim, this Court

consider not only the allegedly newly discovered evidence raised in the successive

postconviction motion at issue, but also the prior postconviction testimony of Dr.

John Brigham, which related to factors that have been shown generally to render

eyewitness identification inaccurate or less reliable, as well as specific factors that

might have called the reliability of Sullivan’s identification of Merck into question.

See Swafford v. State, 125 So. 3d 760, 775-76 (Fla. 2013). We conclude that the

addition of Dr. Brigham’s testimony to the trial evidence and the allegedly newly

discovered evidence would not probably produce an acquittal on retrial.




                                         - 29 -
      For the foregoing reasons, Merck’s claim of newly discovered evidence is

without merit.

                                 CONCLUSION

      Because Merck has failed to show error in the denial of his successive

postconviction motion alleging Giglio and Brady violations, as well as a claim of

newly discovered evidence, we affirm the order denying that motion.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

NO MOTION FOR REHEARING WILL BE ALLOWED.

An Appeal from the Circuit Court in and for Pinellas County,
     Cynthia J. Newton, Judge - Case No. 521991CF016659XXXXNO

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




                                       - 30 -
