          Supreme Court of Florida
                                   ____________

                                   No. SC14-2347
                                   ____________

                               LENNART S. KOO,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [February 11, 2016]

PERRY, J.

      Lennart Koo seeks review of the decision of the First District Court of

Appeal in Koo v. State, 149 So. 3d 693 (Fla. 1st DCA 2014), on the ground that it

expressly and directly conflicts with a decision of another district court of appeal

and this Court on a question of law. We have jurisdiction. See art. V, § 3(b)(3),

Fla. Const.

                                       FACTS

      Koo was convicted of burglary with a firearm after he removed a BB gun, an

AK-47, a .22 caliber rifle, a .38 pistol, and a .44 Magnum revolver from Dr.

Mohammed Saleh’s storage unit. Koo later returned the .38 pistol, the AK-47, and
the .44 Magnum revolver. Dr. Saleh testified at trial that Koo did not have

permission to enter the storage unit without him.

      After Koo’s trial, but before his sentencing, Dr. Saleh wrote a letter to the

trial court purporting to add context to the incident and provide a possible motive

for Koo’s action. Koo filed a motion for new trial arguing that the letter qualified

as newly discovered evidence. The trial court conducted a hearing and then denied

the motion, finding that the letter did not qualify as newly discovered evidence

because nothing in the letter was a recantation of Dr. Saleh’s trial testimony. Koo

received a minimum mandatory sentence of ten years.

      Koo appealed to the First District Court of Appeal which affirmed the trial

court’s order stating, “any evidence in the victim’s letter was known to the parties,

and as such . . . did not qualify as newly discovered evidence.” Koo, 149 So. 3d at

695. Furthermore, the First District held that the letter was not material because it

did not contain evidence that disproved one of the elements of burglary with a

firearm. Id. Koo moved for rehearing and rehearing en banc, which the district

court denied, stating “our decision is consistent with any existing precedent[,]”

because “[t]he letter does not contradict the victim’s trial testimony, and it does not

provide any information that would tend to rebut any of the elements of the

convicted crime.” Koo v. State, 162 So. 3d 156, 157 (Fla. 1st DCA 2015).




                                         -2-
                                   DISCUSSION

      The issue in this case is whether the trial court abused its discretion by

finding that a post-trial, pre-sentencing letter written by the victim, purporting to

offer a possible explanation for the defendant’s actions, did not constitute a

recantation and denying the defendant’s motion for a new trial without an

evidentiary hearing to determine the letter’s credibility. Because the letter did not

recant any material trial testimony, meaning that no evidence supporting any

element of the crime was undermined by the statements in the letter, the trial court

correctly denied the motion for new trial without holding an evidentiary hearing.

However, the trial court improperly found that the letter could not constitute newly

discovered evidence because the information was known to the defendant at trial.

      A motion for new trial may be granted if “[n]ew and material evidence,

which, if introduced at the trial would probably have changed the verdict . . . , and

which the defendant could not with reasonable diligence have discovered and

produced at the trial, has been discovered.” Boyd v. State, 910 So. 2d 167, 178

(Fla. 2005) (quoting Fla. R. Crim. P. 3.600(a)(3)). If a witness recants trial

testimony, that may be considered newly discovered evidence. See, e.g., Stephens

v. State, 829 So. 2d 945, 945-46 (Fla. 1st DCA 2002). “[A] recantation is not

precluded from being considered newly discovered evidence simply because the

defendant knew, as reflected by what the defendant claimed the facts to be, that the


                                         -3-
recanting witness was not telling the truth at the time of the trial or because the

defendant took the stand to testify contrary to the witness.” Archer v. State, 934

So. 2d 1187, 1994 (Fla. 2006).

      Based on this standard, if the information in Dr. Saleh’s letter had

constituted a recantation of his trial testimony, the trial court should have held an

evidentiary hearing, even if Koo knew that Dr. Saleh’s trial testimony was false.

However, the lower court correctly determined that the information in Dr. Saleh’s

letter did not constitute a recantation of his trial testimony. Instead, Dr. Saleh

gives equivocal explanations for Koo’s actions. Although Koo’s defense at trial

was that he felt it was necessary to take Dr. Saleh’s weapons to protect himself,

and argues that Dr. Saleh’s letter supports this theory of defense, no such statement

is made in the letter.

      Dr. Saleh’s testimony at trial was brief. The entirety of his testimony on

direct examination was as follows:

            Q: Last November did you have a storage unit at the Atlantic
      Boulevard U-Haul storage unit?
            A: I did.
            Q: And what did you put in that storage unit?
            A: I had a lot of clothing. Before, your Honor, for quite a
      while, I had some clothing and merchandise that I ordered from
      China.
            Q: Did you put guns in that storage unit?
            A: Yes, sir.
            Q: On November 14th, did you and the defendant, Mr. Lennart
      Koo, put guns in that storage unit?
            A: You know I love you, man, but I have to go with the truth.

                                         -4-
             ....
             Q: Last November 14th?
             A: Yes, sir.
             Q: Was Mr. Koo allowed to go in that storage unit without
      you?
             A: No, sir.
             Q: And did Mr. Koo take guns out of that storage unit?
             A: Yes, sir.
             ....
             Q: Dr. Saleh, is this an AK-47?
             A: Yes, sir.
             Q: Is this your AK-47?
             A: I believe it is.
             Q: Is this the AK-47 that was in the storage unit?
             A: Yeah, I remember the scratch on it.

On cross-examination, Dr. Saleh testified that he had known Koo for

approximately five years, and that Koo had worked for him for the last two to three

years, “off and on.” Dr. Saleh testified that he was notified on November 15,

2011, that his storage unit was missing a lock but did not visit the unit until

January 7, 2012. Dr. Saleh testified that he received a phone call from Koo’s

mother on November 16, and met with her and Koo on November 17 where Koo

returned the AK-47 and a handgun.

             Q: In fact, Mr. Koo, as your employee, had the authority to go
      to these different properties, which you owned, correct?
             A: No. He may – I may send him on an errand, but nobody
      gave him the permission to go to the room, break in and steal my gun.
             Q: And, in fact, you actually provided Mr. Koo with keys to all
      of these properties that you owned?
             A: No.
             Q: He had a keyring which had keys to your vehicles?
             A: No. He stole keys, stole a lot of things. No, we didn’t trust
      him very much.


                                         -5-
             ....
             Q: So even though you allegedly knew that this person had
      stolen a keyring to properties you owned you kept him as an
      employee?
             A: He was not an employee. He was doing some independent
      contract[ing], if you wish, but he was not formally employed. We
      were trying to help him out.
      In his letter to the trial judge after Koo was convicted and before he was

sentenced, Dr. Saleh wrote that Koo “had keys to every dwelling” and could have

taken something more valuable. Koo argues that this is a recantation of Dr.

Saleh’s trial testimony that Koo did not have access to all of Dr. Saleh’s properties.

However, this statement does not contradict Dr. Saleh’s testimony that Koo had

stolen a keyring. His acknowledgment in his letter that Koo had keys to his

dwellings is not materially different from his testimony at trial because neither Dr.

Saleh’s letter nor trial testimony stated that Koo had authority to have those keys.

Nothing else in Dr. Saleh’s letter can be characterized as contradicting or

contrasting any of this testimony at trial. For example, his statement in the letter,

“I miss [Koo] very much and I am devastated that he was convicted to serve a

minimum ten years in prison. He does not deserve that . . . .” is consistent with his

testimony at trial that he loved Koo like a brother, but was compelled to tell the

truth. Dr. Saleh’s post-trial letter appears to be an attempt to provide an

explanation for Koo’s actions, but is consistent with his trial testimony:

      I suddenly remembered that [Koo’s] “intent” may have been
      motivated by something more benign than what has transpired during


                                         -6-
      the trial . . . . The only explanation for [Koo] to remove the guns from
      the storage room, may have been his desire to protect me from my
      own self. I believe he may have felt that leaving the guns in the
      storage room was not enough, because I could still have had access to
      them. Of course, I would never harm my wife or anybody else . . . .
Dr. Saleh does not state in the letter that Koo had permission to enter the storage

unit, that Koo was asked to move the guns, or that he had given Koo a reason to

feel imminent danger.

      In Archer, we explained:

              It is correct that not all recantations will be considered newly
      discovered evidence. See, e.g., Jones v. State, 678 So. 2d 309, 313
      (Fla. 1996) (finding defendant’s reliance on Court’s traditional
      treatment of recantations as newly discovered evidence misplaced
      because defendant’s situation was not the typical case where a witness
      suddenly recanted his or her trial testimony years after the fact). A
      recantation will not be considered newly discovered evidence where
      the recantation offers nothing new or where the recantation is offered
      by an untrustworthy individual who gave inconsistent statements all
      along. Jones, 678 So. 2d at 312-13 (finding that recantation “simply
      offers nothing new” because the witness had already been impeached
      at trial with a prior sworn statement which was consistent with the
      recantation); Walton v. State, 847 So. 2d 438, 454-55 (Fla. 2003)
      (finding that recantation was “simply a new version of the events from
      a witness/participant who has presented multiple stories since the time
      of the occurrence of the events themselves”); Smith v. State, 400 So.
      2d 956 (Fla. 1981) (finding that recantation testimony was cumulative
      to the evidence introduced at trial because both court and counsel
      were aware that prior to trial the recanting witness had confessed to
      the crime and said that defendant was not involved).
              However, in this case, the postconviction court erred when it
      rejected the claim based on what the postconviction court concluded
      was Archer’s knowledge of Bonifay’s testimony at the time of the
      trial. We find that a recantation is not precluded from being
      considered newly discovered evidence simply because the defendant
      knew, as reflected by what the defendant claimed the facts to be, that


                                        -7-
      the recanting witness was not telling the truth at the time of the trial or
      because the defendant took the stand to testify contrary to the witness.
      See Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003); Lee v.
      State, 677 So. 2d 312 (Fla. 1st DCA 1996). The appropriate question
      was whether Archer was or should have been aware of the existence
      of evidence that would demonstrate that Bonifay’s testimony was
      false.
Archer, 934 So. 2d at 1194. In addition to other claims, Archer claimed that a

witness against him had recanted his trial testimony. The trial court held that the

recantation was not newly discovered evidence because Archer knew at the time of

trial that Bonifay was lying. We affirmed, but rejected the postconviction court’s

rationale. Nevertheless, we agreed with the postconviction court’s determination

that Bonifay’s testimony was not credible. Id. at 1196 (noting that recantations are

“exceedingly unreliable”) (citing Armstrong v. State, 642 So. 2d 730, 735 (Fla.

1994); Johnson v. State, 769 So. 2d 990, 998 (Fla. 2000)).

      Likewise, in the instant case, the trial court and First District improperly

determined that Dr. Saleh’s letter did not qualify as newly discovered evidence

because “any evidence in the victim’s letter was known to the parties. . . . ” Koo,

149 So. 3d at 695. However, unlike Archer, there was no recantation to consider

and both courts correctly determined that the unsworn letter did not qualify as

newly discovered evidence because nothing in the letter recanted Dr. Saleh’s trial

testimony. “As stated by Judge Roberts, the unsworn letter by the victim did not




                                         -8-
involve a recantation.” Koo, 149 So. 3d at 696 (Wolf, J., concurring). Thus, there

was “nothing new” offered by the letter.

      For the foregoing reasons, we hold that the trial court did not abuse its

discretion in denying Koo’s motion for a new trial without an evidentiary hearing

although the trial court and First District misstated the appropriate standard for

determining whether a recantation constitutes newly discovered evidence.

      We decline to reach Koo’s second issue on appeal because it was “not

properly preserved for appellate review and [does] not constitute fundamental

error.” Wright v. State, 19 So. 3d 277, 295-96 (Fla. 2009).

      For the foregoing reasons, we affirm the result of the First District Court of

Appeal, but quash the portion of the decision that states “any evidence in the

victim’s letter was known to the parties, and as such . . . did not qualify as newly

discovered evidence,” Koo, 149 So. 3d at 695, because this is an incorrect

statement of law.

      It is so ordered.

LABARGA, C.J., and LEWIS and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
PARIENTE, J., concurs in part and dissents in part with an opinion.

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




                                         -9-
PARIENTE, J., concurring in part and dissenting in part.

      I concur in the majority’s decision explaining that the letter from Dr. Saleh,

the victim in this case, did constitute newly discovered evidence. I dissent to the

extent that the majority denies that the defendant is entitled to an evidentiary

hearing regarding Dr. Saleh’s recantation because—according to the majority—

“the letter did not recant any material trial testimony.” Majority op. at 3.

      The majority’s statement that an evidentiary hearing is not required because

“the letter did not recant any material trial testimony” is overly broad and ignores

the reality that the statements in the letter could constitute impeachment of the key

prosecution witness. See Brooks v. State, 175 So. 3d 205, 231 (Fla. 2015)

(evaluating weight of newly discovered evidence includes factoring whether it

constitutes impeachment or goes to the merits of the case).

      Only when the recantation is “inherently incredible or obviously immaterial

to the verdict and sentence” is an evidentiary hearing not required. Davis v. State,

26 So. 3d 519, 526 (Fla. 2009) (emphasis added). In fact, in Stephens v. State, 829

So. 2d 945, 946 (Fla. 1st DCA 2002), the First District recognized and properly

applied the “inherently incredible or obviously immaterial” standard in remanding

for an evidentiary hearing to consider a state witness’s affidavit.

      Evidentiary hearings are of critical importance. As this Court recognized in

McLin v. State, 827 So. 2d 948, 954-57 (Fla. 2002), only through evidentiary


                                        - 10 -
hearings can the credibility of the witness’s testimony be evaluated. See also

Nordelo v. State, 93 So. 3d 178, 185 (Fla. 2012) (finding witness’s recantation,

unless inherently incredible or obviously immaterial to verdict, requires

evidentiary hearing); Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA 2012)

(requiring evidentiary hearing to resolve claims of newly discovered evidence,

especially when resolution of those claims necessarily requires the trial court to

make credibility determinations); Cammarano v. State, 602 So. 2d 1369, 1371 (Fla.

5th DCA 1992) (determining that recantation of testimony by key prosecution

witness requires evidentiary hearing to determine whether verdict likely would

have been different had witness either not testified or had the testimony at trial

been recanted).

      The majority additionally fails to acknowledge that a recantation can be

material even if it would only impeach a witness’s testimony. In this case, Dr.

Saleh was the key prosecution witness. At trial, although he stated that he loved

Koo as a brother, Dr. Saleh depicted Koo as not even an employee, but rather an

“independent contractor,” in contrast to Koo’s testimony that he was Dr. Saleh’s

“right hand man,” with whom he shared a close relationship.

      The post-trial letter contains admissions that were not part of his trial

testimony that the jury heard: Dr. Saleh writes that he “suddenly remembered” that

Koo’s intent “may have been motivated by something more benign than what []


                                        - 11 -
transpired during the trial,” because he spent long hours talking and venting his

frustrations with Koo and “told [Koo] to make sure I did not do something that I

might regret.” In contrast, at trial, what the jury heard from Dr. Saleh was that “we

didn’t trust [Koo] very much,” and that “nobody gave [Koo] the permission to go

to the room, break in and steal my gun.”

      The statements made in the post-trial letter speak directly to Koo’s consent

defense and the intent element. Based primarily on Dr. Saleh’s trial testimony, the

jury convicted the defendant of burglary with a firearm that triggered a mandatory

ten-year sentence. As Judge Makar states in dissent: “The jury could not have

convicted Koo without Dr. Saleh’s testimony, which it apparently found credible.”

Koo v. State, 149 So. 3d 693, 698 (Fla. 1st DCA 2014) (Makar, J., dissenting). As

Judge Makar further elaborates:

      Dr. Saleh’s recantation letter may be credible, at least as to the
      portions related to Koo’s consent and necessity defenses, which are
      material to the verdict. Under these circumstances, when the State’s
      star witness recants a material portion of his testimony that goes to
      two key defenses in an exceptionally close case in which the jury
      expressed reservations (if not remorse) about its verdict—beseeching
      the trial judge to be lenient on the defendant—it was an abuse of
      discretion not to at least hold a hearing on the matter. Koo’s request
      for a hearing is an exceptionally modest one given his liberty interest
      is at stake; his freedom for the next ten years has been taken away
      based on the disavowed testimony of Dr. Saleh, a person that even the
      trial judge had difficulty believing. A remand for an evidentiary
      hearing under Stephens is necessitated; whether a new trial is
      warranted would depend upon the results of that hearing. Koo is
      entitled to this minimal degree of due process before the State can
      take away a decade of his life.

                                       - 12 -
Id. at 698-99 (emphasis added) (internal citation omitted).

      I agree with the reasoning in Judge Makar’s dissent. Impeachment of the

key prosecution witness, Dr. Saleh, could have been the difference between a

conviction and a not guilty verdict. The sole basis for the conviction is the

testimony of Dr. Saleh, the main accuser, and his credibility is key. Whether his

letter would show that he simply suffers from “buyer’s remorse” or that it would

materially impeach his credibility is a matter that should have been heard at an

evidentiary hearing. If the victim testifies at an evidentiary hearing, his credibility

can be evaluated so that a factual determination can be made of the materiality of

his new testimony in light of his prior testimony. Because Dr. Saleh’s letter was

not “inherently incredible or obviously immaterial to the verdict,” an evidentiary

hearing should have been held in this case.

      Accordingly, I would remand for an evidentiary hearing on the issues raised

by Dr. Saleh’s statements.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      First District - Case No. 1D12-4866

      (Duval County)

Daniel Gray Thomas of the Law Office of D. Gray Thomas, P.A., Jacksonville,
Florida,

      for Petitioner


                                         - 13 -
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Matthew V. Pavese, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                    - 14 -
