          Supreme Court of Florida
                                   ____________

                                   No. SC19-635
                                   ____________

                            MERYL S. MCDONALD,
                                 Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                    June 4, 2020

PER CURIAM.

      Meryl S. McDonald, a prisoner under sentence of death, appeals the circuit

court’s summary denial of his fourth postconviction motion filed pursuant to

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

§ 3(b)(1), Fla. Const., and affirm for the reasons below.

      In his motion, McDonald raised newly discovered evidence and Giglio 1

claims based on a 2014 letter issued by the United States Department of Justice

that criticized portions of the testimony provided by a Federal Bureau of

Investigation (FBI) forensic hair analyst during McDonald’s joint trial with


      1. Giglio v. United States, 405 U.S. 150 (1972).
codefendant Robert Gordon in 1995.2 We affirm the summary denial of

McDonald’s Giglio claim for the same reason we affirmed the summary denial of a

virtually identical claim by Gordon. See Gordon v. State, No. SC15-2091, 2016

WL 6462391, at *1 (Fla. Nov. 1, 2016) (holding Gordon’s reliance on the 2014

letter to establish a Giglio violation was “misplaced” because the prosecutor could

not correct testimony alleged to be false based on information in a letter that was

written and issued to the State approximately twenty years after the trial) (citing

Wyatt v. State, 71 So. 3d 86, 102 (Fla. 2011)).

      We likewise affirm the summary denial of McDonald’s newly discovered

evidence claim, agreeing with the circuit court that it is conclusively established on

this record that the 2014 letter is not “of such nature that it would probably produce

an acquittal on retrial.” Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 3



       2. Because the circuit court denied McDonald’s motion without holding an
evidentiary hearing, this Court “will uphold the . . . summary denial ‘if the motion
is legally insufficient or its allegations are conclusively refuted by the record.’ ”
Mungin v. State, 79 So. 3d 726, 733 (Fla. 2011) (quoting Darling v. State, 45 So.
3d 444, 447 (Fla. 2010)); see also Fla. R. Crim. P. 3.851(f)(5)(B) (providing that a
successive postconviction motion may be denied without an evidentiary hearing if
“the motion, files, and records in the case conclusively show that the movant is
entitled to no relief”).
       3. In Gordon, we treated the 2014 letter as newly discovered. See Gordon,
No. SC15-2091, 2016 WL 6462391, at *1. We question that conclusion because it
is clear from the trial transcript that overstatements in FBI analyst’s testimony
were clarified at trial, on both direct and cross-examination. Therefore, the
substantive concerns about FBI analyst’s testimony raised in the 2014 letter are not
new. Nevertheless, we need not reconsider Gordon to affirm the circuit court’s

                                         -2-
      The criticized portions of the FBI analyst’s testimony overstated the

certainty of the hair comparison analysis that the State used, in part, to link

McDonald to a sweatshirt that contained the victim’s blood, fibers from the

victim’s carpet, and fibers from a cashmere belt used to bind the victim’s body.

However, McDonald’s jury also heard appropriate limiting testimony from the

same witness. This included testimony that “hair evidence isn’t the same as

fingerprint evidence” because “[i]t is not a positive means of personal

identification,” as well as additional testimony—elicited by McDonald’s trial

counsel on cross-examination—as to the limits of the expert’s opinion, specifically

that he could not say that the hair at issue “came from a particular person to the

exclusion of everyone else in the world.” In a retrial, because the science behind

hair comparison analysis has not been discredited, the jury would still hear

testimony about characteristics of the hair found on the sweatshirt in comparison to

characteristics of McDonald’s hair, including that, like McDonald’s hair, the hair

recovered from the sweatshirt was color treated. The jury would also hear that the

hair on the sweatshirt was not consistent with Gordon’s hair but was consistent

with McDonald’s. From this testimony, the jury would still be able to infer a link

between McDonald’s hair and the hair found on the sweatshirt.


summary denial because McDonald has failed to establish that the 2014 letter, even
if newly discovered, is of such a nature that it would probably produce an acquittal
on retrial.

                                         -3-
      But the hair evidence is not the only evidence linking McDonald to the

sweatshirt—which was found in a hotel room that McDonald shared with Gordon

alongside tennis shoes in McDonald’s shoe size that had the same sole pattern as

shoeprints found in the victim’s apartment. See Gordon v. State, 704 So. 2d 107,

109 (Fla. 1997). Nor is McDonald’s link to the sweatshirt, whether by the hair

evidence or otherwise, the only evidence of his guilt. See id. at 108-10. When the

2014 letter is considered together with the evidence that would be admissible on

retrial—including McDonald’s procedurally barred, meritless prior postconviction

challenges to the bloodstain and DNA analysis performed in his case, see

McDonald v. State, 117 So. 3d 412, 2013 WL 2420798, at *1 (Fla. May 28, 2013)

(table)—the letter is not of such a nature that would probably produce an acquittal.

Cf. Duckett v. State, 148 So. 3d 1163, 1168 (Fla. 2014) (affirming summary denial

of newly discovered evidence claim where expert hair comparison testimony that

overstated or exaggerated the accuracy of hair analysis but that, when considered

in its full context, was not false did not give rise to a reasonable doubt as to the

defendant’s culpability).

      Accordingly, we affirm the summary denial of McDonald’s motion.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.
COURIEL, J., did not participate.



                                          -4-
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Pinellas County,
     Chris Thom Helinger, Judge - Case No. 521994CF002958000EPC

Jonathan Hackworth of Hackworth Law, P.A., Tampa, Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Timothy A. Freeland,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




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