          Supreme Court of Florida
                                    ____________

                                    No. SC19-1207
                                    ____________

                             TONEY DERON DAVIS,
                                  Appellant,

                                           vs.

                               STATE OF FLORIDA,
                                    Appellee.

                                   August 27, 2020

PER CURIAM.

      Toney Deron Davis, a prisoner under sentence of death, appeals the circuit

court’s order summarily denying his successive motion for postconviction relief,

which was filed under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction, see art. V, § 3(b)(1), Fla. Const., and affirm for the reasons that

follow.

                                  BACKGROUND

      Davis was “charged with and convicted of first-degree felony murder,

aggravated child abuse, and sexual battery,” stemming from “the murder of [two-

year-old] Caleasha Cunningham on December 9, 1992.” Davis v. State (Davis I),

703 So. 2d 1055, 1056 (Fla. 1997), cert. denied, 524 U.S. 930 (1998). The
victim’s mother, Gwen Cunningham, testified that “on the day of the murder,” she

left the victim—then fully clothed, “in good health and without injuries”—alone

with Davis in their shared apartment. Id. At approximately 12:45 p.m., “Thomas

Moore, an acquaintance of Davis’s,” visited the apartment. Id. Moore testified

that “Davis answered the door with the victim draped over his arm.” Id. After

Davis told Moore that the victim “had choked on a french fry,” Moore called 911.

Id.

      When rescue personnel arrived, the victim was unconscious, wet, and naked

from the waist down. Id. at 1057. Blood was present in the bedroom and

bathroom, and “blood which was found to be the victim’s” was located on Davis’s

underwear and on “the crotch region” of his shorts. Id. The victim was taken to

hospital, where she was “revived but died shortly afterward on December 10,

1992.” Id.

      At trial, “Davis testified that he had left [the victim] and his friend Moore

alone in the apartment at about 12:30 p.m. and went to make some phone calls.”

Id. at 1056. “When he returned,” Davis claimed, “Moore was gone and [the

victim] was having a seizure.” Id. Davis stated that “he administered CPR” to the

victim, “put her in the shower to revive her, and accidentally dropped her in the

shower.” Id. He explained that “Moore asked him not to mention that he had been

with [the victim] because Moore had marijuana in his possession.” Id.


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      The State presented testimony from “[a] neighbor, Janet Cotton,” who

claimed to have “heard a child crying” and “a lot of thumping noises coming from”

Cunningham’s “apartment at approximately noon” on December 9, 1992. Id.

Cotton explained that the noises lasted for about thirty minutes. Davis v. State

(Davis II), 136 So. 3d 1169, 1189 (Fla. 2014). She further recalled hearing a “

‘[v]ery loud’ and ‘stern’ ‘male voice’ that she recognized as Davis’s, saying ‘[s]it

down.’ ” Id. (alterations in original).

      The emergency room physician who treated the victim testified that—in

addition to bruising—the victim had “swelling of the brain and pools of blood in

the skull.” Davis I, 703 So. 2d at 1057. “[T]here was [also] a large collection of

blood at the back of the head which was not consistent with being accidentally

dropped.” Id. Another doctor who examined the victim “testified that the injuries

indicated vaginal penetration by a penis, a finger, or an object.” Id. While the

medical examiner “testified that there was no injury to the vaginal area,” he

explained that “it could have healed quickly.” Id. He “said the victim had suffered

four separate blows to the head, causing [the] cerebral hemorrhage” that resulted in

her death. Id. The medical examiner further stated that no french fries were found

in the victim’s stomach. See id. at 1059.

      A law enforcement officer testified that Davis claimed to have been alone

with the victim. Id. at 1056. Law enforcement agents additionally stated that


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Davis could not explain why blood was found in certain areas of the bedroom and

bathroom or “specify how the victim actually hit the floor when he supposedly

dropped her in the shower.” Id. at 1059.

      Davis was convicted of all charges, id. at 1056, and sentenced to death for

the first-degree felony murder, id. at 1057. We upheld his convictions and his

death sentence on direct appeal. Id. at 1062. Thereafter, we denied Davis’s initial

motion for postconviction relief and his habeas petition. Davis II, 136 So. 3d at

1209. We also affirmed the denial of his successive postconviction motion, Davis

v. State (Davis III), 42 Fla. L. Weekly S235, S236, 2017 WL 656307, at *2 (Fla.

Feb. 17, 2017), and denied his second petition for a writ of habeas corpus, Davis v.

Jones, 235 So. 3d 301, 301 (Fla. 2018).

      In 2019, Davis filed another successive postconviction motion, claiming the

State committed Giglio1 and Brady2 violations. The circuit court summarily

denied the motion. This appeal followed.

                                   ANALYSIS

      Davis contends that the circuit court erred in summarily denying his claims

that the State knowingly presented false testimony from trial witness Janet




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

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


                                          -4-
Cotton—in violation of Giglio—and suppressed Cotton’s “true” testimony—in

violation of Brady. Summary denial of a successive postconviction motion is

appropriate “[i]f the motion, files, and records in the case conclusively show that

the movant is entitled to no relief.” Fla. R. Crim. P. 3.851(f)(5)(B). Applying a de

novo standard of review, we find that test satisfied here.

                                       Giglio

      We first address Davis’s Giglio claim. To establish a Giglio violation, Davis

must show “that: (1) the testimony given was false; (2) the prosecutor knew the

testimony was false; and (3) the statement was material.” Moore v. State, 132 So.

3d 718, 724 (Fla. 2013). False testimony is material “if there is any reasonable

possibility that it could have affected the jury’s verdict.” Id. (quoting Tompkins v.

State, 994 So. 2d 1072, 1091 (Fla. 2008)). “The State . . . bears the burden to

prove that the presentation of false testimony at trial was harmless beyond a

reasonable doubt.” Id. (quoting Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003)).

      In support of his claim, Davis relies on an affidavit from Cotton in which she

states that—contrary to her trial testimony—she “did not hear a baby or child cry

or scream on December 9, 1992.” She further claims that she did not hear “a

thumping noise” or Davis “yell, ‘Sit down.’ ” Rather, Cotton states, she heard

“crying and screaming” coming from a nearby apartment “[a]t some point” one or

two days “before December 9, 1992.” She claims that she “was put under a great


                                         -5-
deal of pressure and duress by the State of Florida during multiple meetings with

law enforcement.” Cotton further recalls that she stayed in touch with a former

state attorney, who—during their final conversation “several years ago”—offered

to “take care” of criminal charges filed against her.

      We conclude that the circuit court properly denied this claim. Even

assuming Davis could prove that the State knowingly presented false testimony

from Cotton, the use of this testimony was harmless beyond a reasonable doubt.

Regardless of whether Cotton heard noises coming from Davis’s apartment on

December 9, 1992, the State presented ample evidence that the victim’s injuries

were not accidental and occurred while she was in Davis’s care. This includes the

testimony “that Davis was alone in the apartment with the victim,” “the bloodstain

evidence,” the medical testimony regarding the nature of the victim’s injuries, “the

fact that there were no french fries found in the victim’s stomach,” and Davis’s

inability to explain how the victim fell or why blood was found in certain areas of

the apartment. Davis I, 703 So. 2d at 1059. Accordingly, there is no reasonable

possibility that Cotton’s testimony affected the jury’s verdict.

      Davis contends, however, that Cotton’s testimony was material because it

was essential in refuting his defense that Thomas Moore was responsible for the

victim’s injuries. At trial, Davis testified that “at about 12:30 p.m.,” he left the

victim alone in the apartment with Moore while he made phone calls. Davis I, 703


                                          -6-
So. 2d at 1056. Without Cotton’s testimony that she heard noises—including

“thumping” sounds, a child crying, and Davis’s voice saying, “[s]it down”—

coming from the apartment between 12:00 p.m. and 12:30 p.m., Davis claims that

it would have been more difficult for the jury to rule out the possibility that Moore

had injured the victim. Davis II, 136 So. 3d at 1189 (alteration in original).

      This argument lacks merit for three reasons. First, even if Cotton had not

testified, “[t]he jury would still be left with the impression . . . that Davis’s defense

evolved after he had time to contemplate the situation.” Id. at 1188. “Davis did

not begin to assert that someone else harmed the victim until after his

conversations with the first responders and his interview with the investigating

detectives.” Id. He “spoke to seven people in six separate statements about what

happened to the victim without ever asserting that Moore—or anyone else—was

left alone with” her. Id.

      Further, Davis claimed “that when he returned to the apartment after leaving

the victim with Moore,” there appeared to be nothing wrong with the victim. Id.

He recalled that “[s]he looked normal, except for she wasn’t breathing.” Id. Yet

medical testimony “render[ed] Davis’s claim that the child appeared uninjured

patently implausible.” Id.

      Finally, Davis failed to provide a credible “explanation of why he did not

immediately implicate Moore.” Id. At trial, Davis “testified that he promised not


                                          -7-
to inform law enforcement about Moore’s presence—and thus risked implicating

himself in the murder—because Moore was afraid of being charged with drug

possession.” Id. at 1188-89.

      The circuit court correctly determined that there is no reasonable possibility

that Cotton’s testimony affected the jury’s verdict. 3 Accordingly, we affirm the

summary denial of Davis’s Giglio claim.

                                       Brady

      Davis next argues that the circuit court erred in summarily denying his

Brady claim based on Cotton’s testimony. To establish a Brady violation, the

defendant has the burden to show “(1) that favorable evidence, either exculpatory

or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3)

because the evidence was material, the defendant was prejudiced.” Taylor v. State,

62 So. 3d 1101, 1114 (Fla. 2011) (emphasis omitted).

      Davis contends that the State violated Brady by suppressing Cotton’s “true”

testimony. But we conclude that Davis’s Brady claim—like his Giglio claim—

fails on the materiality prong. There is no “reasonable probability that, had”

Cotton’s “true” testimony “been disclosed to the defense, the result of the



      3. Davis further asserts that Cotton’s statement should be considered
cumulatively with evidence presented in prior postconviction claims when
evaluating the materiality prong. We conclude, however, that engaging in such a
cumulative analysis would not change our determination.


                                        -8-
proceeding would have been different.” Id. (quoting Guzman, 868 So. 2d at 506).

Whether or not Cotton heard noises coming from Davis’s apartment on December

9, 1992, the State presented ample evidence that Davis intentionally injured the

victim on that date.4 We therefore conclude that the circuit court properly

summarily denied this claim.

                                 CONCLUSION

      For the reasons above, we affirm the circuit court’s order summarily denying

Davis’s successive motion for postconviction relief.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.

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

An Appeal from the Circuit Court in and for Duval County,
     Linda McCallum, Judge - Case No. 161992CF013193AXXXMA

Rick A. Sichta of The Sichta Firm, LLC., Jacksonville, Florida,

      for Appellant




      4. The additional evidence Davis has presented in connection with this
claim does not change our conclusion. This evidence is either similar to that we
previously held procedurally barred, see Davis III, 42 Fla. L. Weekly at S236,
2017 WL 656307, at *1, immaterial even if considered cumulatively with Cotton’s
statement, or untimely or otherwise improperly presented in the instant appeal.



                                        -9-
Ashley Moody, Attorney General, and Janine D. Robinson, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




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