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 (2()17). 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 J ames Newton and
sentenced to death, and his conviction was affirmed on direct appeal in 1995.
Merck v. State (Merck l), 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 Il), 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 .

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

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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

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

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. lndeed, 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.

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

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

_1()_

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 tum, 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

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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

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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

lt 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.

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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.

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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. Siqie, 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 qudy 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

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prejudiced by the suppression of the evidence. Sirickler v. Greene, 527 U.S. 263,
281-82 (1999); see qudy, 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.” Mordenii v.
State, 894 So. 2d 161, 170 (Fla. 2004) (quoting Strickler, 527 U.S. at 280); see also
quley, 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.” Mordenii, 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 qudy 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.

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First, the instruction to “stick to” Thomas’s deposition testimony does not
constitute qudy 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
Brddy.

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 Porier, 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] qudy violation occurs ‘when the
government fails to disclose evidence materially favorable to the accused.’ ” Hursi
v. State, 18 So. 3d 975, 988 (Fla. 2009) (quoting Youngblood v. West Virginid, 547

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

_13_

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 Brddy.

Merck argues that the State did not have to know about this information to
suppress it, as the qudy 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 qudy
claim is showing that the defense did not possess the information at issue. See
Hursi v. Siqie, 18 So. 3d 975, 988 (Fla. 2009) (noting that the “defendant has the
burden” to prove each element of a qudy claim); Provenzqno v. Siqie, 616 So. 2d

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

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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 qudy 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

_2()_

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 qudy 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 qudy standard of materiality in the
consideration of the motion at issue. Cf Smiih v. Sec’y Dep’i 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_

qudy claim is involved, or if the suppression was harmless beyond a reasonable
doubt where a Giglio type of qudy claim is involved.”).

For the foregoing reasons, Merck’s qudy 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 qudy violation, it constitutes newly
discovered evidence entitling him to a retrial. We disagree because this claim is
both procedurally barred and without merit.

Procedurdl Bdr

This claim is procedurally barred because it was not filed within one year of
the date it became discoverable through due diligence. Frqnqui v. Siqie, 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.” J0nes v. Siqie, 709 So. 2d 512, 521 (Fla. 1998) (quoting Torres-
Arboleddr 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 retria .” 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. lt 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. ln 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
lones, 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 Chqndler v.
Siqie, 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

935

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

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

_23_

(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 J0nes, 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 qu]jford v. Siqie, 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 qudy violations, as well as a claim of
newly discovered evidence, we affirm the order denying that motion.
lt is so ordered.

CANADY, C.J., and PARIENTE, LEWlS, QUlNCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

NO MOTION FOR REHEARING VVILL 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 Attomey General, Tampa, Florida,

for Appellee

_3()_

