Supreme Court of Florida

No. SClS-48

WILLIAM GREGORY THOMAS,
Appellant,

VS.

STATE OF FLORIDA,
Appellee.

December 28, 2018
PER CURIAM.

William Gregory Thomas appeals the postconviction court’s order
summarily denying his second successive postconviction motion requesting relief
under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972), filed under Florida Rule of Criminal Procedure 3.851.1

Thomas’ claims involve two individuals Who Were incarcerated With
Thomas, Ahmad Dixon, a testifying Witness, and Adrian Cason, a potential

Witness, Who Thomas alleges received favorable treatment in their own

 

l. We have jurisdiction. See art. V, § 3(b)(l), Fla. Const.

prosecutions in exchange for testifying or gathering evidence against him. Thomas
asserts that the State violated Brady by not disclosing (1) evidence that the State
had dropped charges against Dixon; and (2) evidence that the State no longer
pursued the death penalty against Cason after he offered to assist the State in
Thomas’ prosecution. Thomas also asserts that the State violated Giglio by
presenting or failing to correct false or misleading testimony regarding (1) whether
Dixon faced any State court charges between his 1993 arrest and his 1994
testimony; and (2) whether Cason was promised a benefit specifically in exchange
for assisting the State in Thomas’ prosecution.

First, Thomas’ claims are procedurally barred, as this evidence is not newly
discovered. The record establishes that the information in his claims could have
been discovered at an earlier date through the use of due diligence. See Fla. R.
Crim. P. 3.851(d)(2)(A).

Moreover, even if Thomas’ claims were not procedurally barred, his claims
are without merit. Thomas failed to establish Brady’s materiality prong. See
Mosley v. State, 209 So. 3d 1248, 1258-59 (Fla. 2016) (“To meet the materiality
prong, the defendant must demonstrate ‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’ ” (quoting Way v. State, 760 So. 2d 903, 913 (Fla. 2000))). Nor

did Thomas prove a Giglio violation. Even if we accept Thomas’ allegations, any

false testimony of Dixon or Cason was not material. See Guzman v. State, 868 So.
2d 498, 506 (Fla. 2003) (“Under Giglio, where the prosecutor knowingly uses
perjured testimony, or fails to correct what the prosecutor later learns is false
testimony, the false evidence is material ‘if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury.’ . . . The State, as
the beneficiary of the Giglio violation, bears the burden to prove that the
presentation of false testimony at trial was harmless beyond a reasonable doubt.”
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976))).

Accordingly, we affirm the postconviction court’s summary denial of
Thomas’ successive motion for postconviction relief.

lt is so ordered.
CANADY, C.J., and LEWIS, POLSTON, LABARGA, and LAWSON, JJ., concur.
QUINCE, J., concurs in result.
PARIENTE, J., concurs in result in part and dissents in part with an opinion.
NO MOTION FOR REHEARING WILL BE ALLOWED.
PARIENTE, J., concurring in result in part and dissenting in part.

l agree that Thomas is not entitled to relief on his Bra¢dyZ/Giglio3 claims

regarding Dixon, but l would deny relief on the basis of prejudice rather than a

procedural bar. The per curiam opinion conflates the standards for Brady/Giglio

 

2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).

_3_

claims with the standards for claims of “newly discovered evidence.” While the
per curiam opinion reasons that the claims are procedurally barred because the
evidence is “not newly discovered” and could have been discovered through “due
diligence,” neither Brady nor Giglio contains a due diligence prong. Per curiam
op. at 2. Rather, the focus in a Brady analysis is whether the State failed to
disclose information favorable to the defendant; with Giglio, the critical inquiry is
whether the State presented false testimony.

Further, l dissent from the per curiam opinion affirming the postconviction
court’s summary denial of Thomas’s Brady/Giglio claims regarding Cason’s
deposition testimony. l would, instead, grant an evidentiary hearing to further
develop this claim.

BACKGROUND

On direct appeal, this Court explained the facts underlying Thomas’s crimes,
stating:

Thomas planned the kidnapping and murder of his wife,

Rachel, in order to avoid paying his part of a settlement agreement in

their pending divorce. Thomas and a friend, Douglas Schraud, went

to Rachel’s house, September 12, 1991, the day before a substantial

payment was due, and Thomas beat, bound, and gagged Rachel.

When Rachel tried to escape by hopping outside, Thomas knocked her

to the ground and dragged her back inside by her hair. He then put

her in the trunk of her car and drove off. She was never seen again.

Thomas v. State, 693 So. 2d 951, 951 (Fla. 1997). In addition to Schraud’s

testimony at trial and other incriminating evidence, Thomas made “many

_4_

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

and Giglio claims arise from allegations regarding two of the individuals

incarcerated with Thomas: Ahmed Dixon, who testified at Thomas’s trial, and

Adrian Cason, a potential witness who was deposed but did not testify at trial.
ANALYSIS

In this case, because the postconviction court did not conduct an evidentiary
hearing, this Court must accept Thomas’s allegations to the extent they are not
refuted by the record. See Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003).

As to Dixon, Thomas argues that the State failed to disclose evidence that
the State had dropped charges against Dixon, and he further gave false testimony at
his deposition and the trial when he stated that he did not have any dropped State
charges. Thomas argues that this information would have been vital to impeaching
Dixon at trial. However, this information would have been cumulative to the
information presented at trial because the jury heard that Dixon had three prior
felony convictions, was currently incarcerated at the Duval County Jail on federal
charges for possession with intent to distribute cocaine, and was awaiting
sentencing after pleading guilty to the federal charges without a plea bargain.
Therefore, the jury was made aware of Dixon’s possible “motives for testifying,
including the prospect of receiving a plea deal.” Further, the additional

impeachment evidence Thomas claims does not undermine the evidence presented

to the jury of Thomas’s guilt, which is explained above. Thus, Dixon has failed to
prove prejudice to sustain a Brady claim or materiality to sustain a Giglio claim.
Accordingly, l concur in result as to Thomas’s claim regarding Dixon.

As to Cason, Thomas argues that the State failed to disclose that Cason’s
plea deal was based solely on his assistance in gathering evidence against Thomas
and did not require Cason to testify at Thomas’s trial, as evidenced by testimony in
Cason’s 2000 postconviction hearing. Further, Thomas claims that, at his
deposition, Cason presented false or misleading testimony when he failed to
disclose that his plea deal with the State did not include his testifying during
Thomas’s trial. Thomas argues that the defense could have used this information
to show Cason was acting as a State agent when he encouraged Thomas to speak
freely with him in front of Dixon.

The record is insufficient to determine whether Thomas is entitled to relief
on this claim. First, as to the Brady claim, it was not defense counsel’s
responsibility to assume Cason’s deposition testimony was false and continue
digging to determine whether the plea deal encompassed more or less than what
Cason claimed. As l explained in Pittman v. State, 90 So. 3d 794 (Fla. 2011):

[T]he majority could be read to approve of a due diligence

requirement in Brady when Brady has no such requirement. . . .

This would of course be a serious misstatement of the purpose
of Brady, which imposes the important requirement on prosecutors “to

learn of any favorable evidence known to the others acting on the
govemment’s behalf in the case,” Kyles v. Whitley, 514 U.S. 419, 437,

_6_

(1995), and to produce that evidence if it is material. This Court has
explicitly stated: “[W]e point out that there is no ‘due diligence’
requirement in the Brady test and that the prosecutor is charged with

possession of what the State possesses . . . .” Archer v. State, 934 So.
2d 1187, 1203 (Fla. 2006). As more fully explained by this Court
in Archer.'

[W]e have held that a defendant is not required to compel
production of favorable evidence which is material, in
that the evidence tends to negate the guilt of the accused
or tends to negate the punishment. To comply

with Brady, the individual prosecutor has a duty to learn
of any favorable evidence known to others acting on the
govemment’s behalf in the case and to disclose that
evidence if it is material. The postconviction court is in
error to the extent that the court ’s order is read to mean
that [ the defendant] had to demonstrate “due diligence ”
in obtaining favorable evidence possessed by the State or
that the prosecutor’s obligation was only to give to [ the
defendant] favorable evidence which was in the
prosecutor’s personal possession.

Id. at 1203 (emphasis added) (citations omitted). Of course, if the

defendant knew of the evidence or had possession of it, then there

could not be a Brady claim because the evidence could not be found

to have been withheld from the defendant.

Id. at 820-21 (Pariente, J., concurring in result).

Further, Thomas’s Giglio claim rises and falls on the truthfulness of Cason’s
deposition testimony regarding his plea deal. Thus, l would grant an evidentiary
hearing to further develop the claim.

CONCLUSION

For these reasons, l concur in result as to the per curiam opinion’s

conclusion that Thomas is not entitled to relief on his Brady/Giglio claims

_7_

regarding Dixon but dissent as to Thomas’s claim regarding Cason, on which l
would grant an evidentiary hearing.

An Appeal from the Circuit Court in and for Duval County,
Marianne L. Aho, Judge - Case No. 161993CF005394AXXXMA

Bjom E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater,
Florida; and Martin J. McClain of McClain & McDermott, P.A., Wilton Manors,
Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attomey
General, Tallahassee, Florida,

for Appellee

