Jose Antonio Jimenez v. State of Florida & SC18-1321 Jose Antonio Jimenez v. State of Florida
Jose Antonio Jimenez v. State of Florida & SC18-1321 Jose Antonio Jimenez v. State of Florida
Opinion of the Court
Jose Antonio Jimenez, a prisoner under sentence of death and an active death warrant, has filed two appeals in this Court since Governor Scott signed his death warrant on July 18, 2018. Collectively, Jimenez appeals the postconviction court's orders summarily denying his fifth and sixth successive motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.851, the postconviction court's order denying his motion to amend his sixth successive postconviction motion, and the postconviction court's order denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm the denials of all four motions and lift the stay of execution entered on August 10, 2018.
BACKGROUND
On October 2, 1992, Jimenez beat and stabbed to death 63-year-old Phyllis Minas in her home in Dade County, Florida. Jimenez v. State ,
During the attack [Minas's] neighbors heard her cry, "Oh God! Oh my God!" and tried to enter her apartment through the unlocked front door. Jimenez slammed the door shut, locked the locks on the door, and fled the apartment by exiting onto the bedroom balcony, crossing over to a neighbor's balcony and then dropping to the ground. Rescue workers arrived several minutes after Jimenez inflicted the wounds, and Minas was still alive. After changing his clothes and cleaning himself up, Jimenez spoke to neighbors in the hallway and asked one of them if he could use her telephone to call a cab.
Jimenez's fingerprint matched the one lifted from the interior surface of the front door to Minas's apartment, and the police arrested him three days later at his parents' home in Miami Beach.
Since then, Jimenez has engaged in extensive litigation in both state and federal court, none of which has resulted in relief from his convictions or sentence of death. As relevant to the claims raised in these proceedings, in 2001, we upheld the denial of Jimenez's initial postconviction motion.
*470Jimenez v. State ,
Governor Scott signed Jimenez's death warrant on July 18, 2018.
During the same time period that Jimenez was reviewing NMPD's post-warrant records submission, he was also litigating in the postconviction court his fifth successive postconviction motion and a motion to correct illegal sentence, both of which Jimenez filed after the Governor signed his death warrant. After holding a Huff
On the same day, August 1, 2018, during their review of NMPD's post-warrant records submission, Jimenez's counsel and his investigator saw handwritten documents that they did not recognize. The investigator then traveled to the repository to compare the 2018 submission against NMPD's prior submission, and Jimenez's counsel ultimately confirmed that 81 pages of handwritten records had not previously *471been disclosed. Jimenez's counsel further confirmed that there was no indication in NMPD's prior submission that records had been withheld or public records exemptions claimed.
On August 6, 2018, without first seeking leave from this Court's post-warrant scheduling order-which required all proceedings in the postconviction court to be completed by July 31, 2018-Jimenez filed in the postconviction court his sixth successive postconviction motion raising one claim with several subclaims in which he argued that NMPD's post-warrant records submission includes newly discovered evidence that demonstrates Brady ,
On August 10, 2018, Jimenez appealed to this Court the summary denial of his sixth successive postconviction motion and the denial of his motion to amend. Thereafter, we stayed Jimenez's execution and amended nunc pro tunc the July 31, 2018, deadline for completing proceedings before the postconviction court to the date that they had actually been completed, August 10, 2018. In so doing, we prohibited additional filings in the postconviction court by either party without prior leave of this Court.
Presently pending before this Court are (1) Jimenez's first post-warrant appeal, in which Jimenez challenges the summary denial of his fifth successive postconviction motion and the denial of his motion to correct illegal sentence; and (2) Jimenez's second post-warrant appeal, in which Jimenez challenges the summary denial of his sixth successive postconviction motion and the denial of his motion to amend. We address them in turn.
ANALYSIS
I. First Post-Warrant Appeal
A. Fifth Successive Postconviction Motion
In appealing the summary denial of his fifth successive postconviction motion, Jimenez raises four claims: (1) that he was denied access to public records necessary and relevant to framing and prosecuting his postconviction claims; (2) that he is entitled to an evidentiary hearing on his claim that Florida's use of etomidate as the first of three drugs in its lethal injection procedure places him at substantial risk of serious harm in violation of the Eighth Amendment and article I, section 17 of the Florida Constitution ; (3) that Florida's continued use of a three-drug protocol instead of a one-drug protocol constitutes cruel and unusual punishment in light of evolving standards of decency; and (4) that executing him after he has spent more than 23 years on death row constitutes cruel and unusual punishment in light of evolving standards of decency. None of these claims warrants relief.
(1) Public Records
Jimenez first challenges the postconviction court's denial of his requests for *472certain public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3) and (i),
Jimenez first argues that the postconviction court erred by denying his rule 3.852(h)(3) request to the Florida Department of Corrections (DOC) on the ground that "the records are overbroad, burdensome, and not related to a colorable claim."
Collateral counsel does not deny the absence of a prior records request to DOC. Rather, he argues that rule 3.852 relieved him of that obligation because it established the records repository. However, this argument is contrary to the plain language of rule 3.852(h)(3), which limits the request for production of additional public records under that subdivision to "a person or agency from which collateral counsel has previously requested public records." Fla. R. Crim. P. 3.852(h)(3) ; see also Rolling v. State ,
Moreover, unlike the public records request at issue in Muhammad , Jimenez's request to DOC did not specifically identify the records requested, or provide any *473context as to how those records were relevant to a potential, colorable claim. Cf. Muhammad ,
On these facts, holding that the postconviction court abused its discretion in denying Jimenez's eleventh-hour request would be antithetical to the purpose of rule 3.852(h)(3). See
We also find no abuse of discretion in the postconviction court's denial of requests for additional records from DOC, the Florida Department of Law Enforcement (FDLE), and the District Eight Medical Examiner pursuant to rule 3.852(i), which Jimenez requested in support of his challenges to Florida's current lethal injection protocol. Specifically, although the postconviction court ordered DOC and FDLE to produce checklists, logs, and documents memorializing the execution of Eric Branch, Jimenez claims that the postconviction court erred by denying his requests for records related to the selection of drugs, creation of the protocol, alternatives to the current protocol, reasons for the recent changes that have been made, including to the positioning of inmates in the death chamber and the mitten-like coverings that are placed on their hands, and the records of three other executions besides Branch's using the current protocol (Mark James Asay, Cary Michael Lambrix, and Patrick Hannon).
Recently, in finding no abuse of discretion in the denial of a similar request, we explained that "[t]he current injection protocol was fully considered and approved of in Asay VI ,"
(2) Use of Etomidate
Jimenez next argues that the postconviction court erred in summarily denying his claim that Florida's use of etomidate as the first of three drugs in its lethal injection procedure places him at substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution. We disagree.
Claims raised under rule 3.851" 'may be summarily denied when they are legally insufficient ... or are positively refuted by the record.' Because a postconviction court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review." Marek v. State ,
In Asay VI , we fully considered and approved of the current lethal injection procedure, which replaced midazolam with etomidate as the first drug in the three-drug protocol. In so doing, we held that competent, substantial evidence supported the postconviction court's finding after an evidentiary hearing that Asay had failed to make the showing required to prevail on a method of execution challenge under the Eighth Amendment pursuant to the United States Supreme Court's decision in Glossip v. Gross , --- U.S. ----,
Jimenez argues that events that transpired during Eric Branch's February 2018 execution constitute new evidence requiring reconsideration of the constitutionality of lethal injection as currently administered in Florida.
However, it is impossible to know whether Branch's actions were in protest of his execution or a reaction to etomidate, such as the "transient venous pain on injection and transient skeletal movements, including myoclonus" recognized among the "most frequent adverse reactions" in Asay VI , 224 So.3d at 701. Moreover, the record indicates that the required consciousness check was performed before the subsequent administration of the second and third drugs.
In sum, Jimenez's speculative and conclusory allegations regarding Branch's execution are insufficient to require revisiting our holding in Asay VI approving the constitutionality of lethal injection as currently administered in Florida over the challenge that the use of etomidate as the first drug in the lethal injection protocol presents a substantial risk of serious harm.
(3) Three-Drug Protocol
Jimenez next argues that Florida's continued use of a three-drug protocol instead of a one-drug protocol constitutes cruel and unusual punishment in light of evolving standards of decency. However, "we have consistently rejected [the] challenge that the DOC should substitute the current three-drug protocol with a one-drug protocol." Hannon ,
(4) Length of Time on Death Row
In his final claim in the appeal of the denial of his fifth successive postconviction motion, Jimenez argues that, because he has spent over 23 years on death row, adding his execution to that punishment constitutes cruel and unusual punishment in light of evolving standards of decency. We have consistently rejected this argument and decline to recede from our long-standing precedent in Jimenez's case. See, e.g. , Lambrix v. State ,
B. Motion to Correct Illegal Sentence
Jimenez also appeals the postconviction court's denial of his rule 3.800(a) motion to correct illegal sentence.
II. Second Post-Warrant Appeal
Jimenez's second post-warrant appeal challenges the postconviction court's summary denial of his sixth successive postconviction motion, in which Jimenez raised claims of Brady , Giglio , discovery, and due process violations arising from alleged newly discovered evidence contained within 81 pages of investigatory and trial preparation materials recently disclosed by NMPD. In addition, Jimenez appeals the postconviction court's denial of his motion to amend his sixth successive postconviction motion to add a new subclaim and additional argument regarding other of his subclaims. We address the motion to amend first, followed by the sixth successive postconviction motion.
A. Motion to Amend
"[E]ven accepting for the sake of argument that the circuit court erred in denying the motion [to amend], any such error would clearly be harmless." Zakrzewski v. State , No. SC11-1896,
*477B. Sixth Successive Postconviction Motion
Jimenez next appeals the postconviction court's summary denial of his sixth successive postconviction motion. Giving Jimenez the benefit of the additional subclaim and arguments presented in his motion to amend, Jimenez raises the following seven subclaims, which he alleges arise from records that were previously undisclosed by NMPD: (1) handwritten detective notes of an interview with Jimenez's and the victim's neighbor that occurred before the neighbor gave her sworn, recorded statement evince a Brady violation; (2) handwritten detective notes from an interview with Jimenez's former girlfriend regarding her daughter's relationship with the victim evince a Brady violation; (3) handwritten notes by NMPD Detectives Diecidue and Ojeda taken during their interview with Jimenez on the day of his arrest evince Brady , Giglio , discovery, and due process violations; (4) handwritten detective notes regarding, and correspondence from, jailhouse informant Jeffrey Allen evince a Brady violation; (5) a fax coversheet showing communication between NMPD and private investigator Steve Sessler on October 16, 1992, evince a Brady violation; (6) handwritten detective notes showing contact information for cab driver Anwar Ali and the content of a September 1993 interview with Ali evince a Brady violation; and (7) handwritten notes that appear to be trial preparation materials for Detective Ojeda evince a Brady violation. Jimenez contends that, singularly and cumulatively, these alleged violations entitle him to relief from his convictions and sentence of death, or at the very least require an evidentiary hearing.
Before analyzing each of Jimenez's subclaims, we address the standards that govern our review.
Timeliness
Before this Court may reach the merits of any subclaim within Jimenez's sixth successive postconviction, he must first establish that it is timely. A rule 3.851 motion for postconviction relief must generally be filed within one year after the judgment and sentence are finalized. See Fla. R. Crim. P. 3.851(d)(1). A motion filed after the expiration of this time period is procedurally barred unless one of the following circumstances exists:
(A) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.
Fla. R. Crim. P. 3.851(d)(2).
Jimenez filed the sixth successive rule 3.851 motion at issue on August 6, 2018, well beyond the one-year time period limitation after his judgment and sentence became final on May 18, 1998, when the United States Supreme Court denied certiorari. However, Jimenez argues that his motion is timely under rule 3.851 because the 81 pages of investigatory and trial preparation materials that NMPD disclosed in response to Jimenez's post-warrant public records request constitute newly discovered evidence. "To be considered timely filed as newly discovered evidence, the rule 3.851 motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence." Jimenez ,
*478If Jimenez is correct that the claims in his sixth successive postconviction motion do, in fact, arise from newly discovered evidence (which, as addressed below, they do not) and are, therefore, timely (which, as addressed below, they are not), several standards nevertheless stand between Jimenez and the relief he seeks.
Brady
The first standard at issue in this appeal applies to Jimenez's claims that information contained in NMPD's 2018 post-warrant disclosure shows violations of Brady v. Maryland ,
the defendant must demonstrate that (1) 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. Strickler v. Greene ,527 U.S. 263 , 281-82,119 S.Ct. 1936 ,144 L.Ed.2d 286 (1999) ; Way v. State ,760 So.2d 903 , 910 (Fla. 2000). 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." Way ,760 So.2d at 913 (quoting United States v. Bagley , 473 U.S. [667,] 682 [105 S.Ct. 3375 ,87 L.Ed.2d 481 (1985) ) ]. A reasonable probability is a probability sufficient to undermine this Court's confidence in the outcome.Id. ; see also Strickler ,527 U.S. at 290 ,119 S.Ct. 1936 . However, in making this determination, a court cannot "simply discount[ ] the inculpatory evidence in light of the undisclosed evidence and determin[e] if the remaining evidence is sufficient." Franqui v. State ,59 So.3d 82 , 102 (Fla. 2011). "It is the net effect of the evidence that must be assessed." Jones v. State ,709 So.2d 512 , 521 (Fla. 1998).
Mosley v. State ,
Furthermore, to assess materiality where more than one Brady violation is alleged, pursuant to Kyles v. Whitley ,
[i]n making the materiality determination, a court must first "evaluate the tendency and force of the undisclosed evidence item by item" before separately "evaluat[ing] its cumulative effect." See [ Kyles , 514 U.S.] at 436 n.10,115 S.Ct. 1555 ("We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion ...."). "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." Smith [v. Sec'y, Dep't of Corr. ], 572 F.3d [1327,] 1334 [ (11th Cir. 2009) ]. "A 'reasonable probability' of a different result exists when the government's evidentiary suppressions, viewed cumulatively, undermine confidence in the guilty verdict."Id. (citing Kyles ,514 U.S. at 434 , 436 & n.10, 437,115 S.Ct. 1555 ).
Smith v. State ,
Jimenez also makes the related argument that the Brady violations he claims are reflected in NMPD's post-warrant disclosure show that the State failed to comply with its discovery obligations.
*479As this Court has explained, "when discovery violations are proven in motions for postconviction relief[,] ... [t]he test for measuring the effect of the failure to disclose exculpatory evidence, regardless of whether such failure constitutes a discovery violation, is [the same that applies to a Brady violation, namely] whether there is a reasonable probability that 'had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Duest v. Dugger ,
Giglio
The next standard at issue applies to Jimenez's claim that the State violated Giglio v. United States ,
"[A] defendant must show that: (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." Rhodes v. State ,986 So.2d 501 , 508-09 (Fla. 2008). As to the knowledge prong, in Guzman ..., [this Court has] clarified that Giglio is satisfied where the lead detective testifies falsely at trial because the "knowledge of the detective ... is imputed to the prosecutor who tried the case."Id. at 505 .
The materiality prong of Giglio is more defense-friendly than in a Brady claim. See Davis v. State ,26 So.3d 519 , 532 (Fla. 2009) ("[T]he standard applied under the third prong of the Giglio test is more defense friendly than the test ... applied to a violation under Brady ."). While under Brady , evidence is material if a defendant can show "a reasonable probability that ... the result ... would have been different," Way ,760 So.2d at 913 (emphasis added), under Giglio , the evidence is considered material simply "if there is any reasonable possibility that it could have affected the jury's verdict." Rhodes ,986 So.2d at 509 (emphasis added).
Mosley ,
Further, the cumulative analysis used to evaluate materiality under the Brady standard also applies to Giglio claims. See Smith v. Sec'y, Dep't of Corr. ,
And, similar to the way in which a defendant's personal knowledge of information allegedly "suppressed" is fatal to a Brady claim, see Gorham ,
*480Due Process
Jimenez argues that the same new evidence within NMPD's post-warrant disclosure that he contends supports his Brady and Giglio claims also shows that the State violated his right to due process by misleading both his defense counsel and his jury. See Alcorta v. Texas ,
However, as with the other due-process-based claims (i.e., Brady and Giglio ), a defendant who knows that his jury is being misled cannot adopt an "I'll deal with it later" approach. See Fla. R. Crim. P. 3.851(d)(2) ; cf. also Ferrell v. State ,
Review of Summary Denial
Finally, Jimenez's argument that the postconviction court should have granted him an evidentiary hearing implicates the standard applicable to our review of a summary denial. A postconviction motion may be summarily denied only "[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), (h)(6) ; see also Parker v. State ,
As explained below, application of these standards to Jimenez's subclaims makes clear that Jimenez is not entitled to relief on these claims.
(1) Virginia Taranco, the neighbor
In his first subclaim, Jimenez argues that the State committed a Brady violation when it failed to disclose information with respect to the victim's neighbor, Virginia Taranco, who provided a taped, sworn statement following the murder, was deposed prior to trial, and testified at trial. Jimenez claims that the previously undisclosed notes reveal "a previously unknown interview of Ms. Taranco before the taped statement began" during which Taranco exonerated Jimenez by "saying that while she was at Ms. Minas' door investigating the sounds that she had heard, she observed Mr. Jimenez come down from the third floor ... while the assailant is still inside ... [meaning that] Mr. Jimenez could not possibly have been the assailant." Contrary to Jimenez's assertion, the fact that this interview occurred was disclosed to Jimenez in discovery prior to trial, and the notes reveal that Taranco recounted the relevant facts in the preliminary interview exactly as she did in the taped interview, in her deposition, and at trial, which was not exonerating.
The notes start with five lines that have an "X" marked over them and are lined through. Those five lines, which form the basis for this subclaim, are plainly legible despite the cross-through, and read:
Heard one bang, went to investigate
Heard second bang. While at door
observed [defendant] coming from Third Floor
was wearing no hat First observed on
ground Floor with baseball hat
The remainder of the detective's notes reflect that the detective had Taranco restart her account at the beginning, chronologically, from when she first observed Jimenez on the ground floor, prior to the murder, and describe Taranco seeing Jimenez coming down to the second floor (where the victim's apartment was located) from the third floor (where Jimenez's apartment was located) when Taranco was waiting for the police, not when she was at the victim's door hearing noises and seeing the victim's door being pushed shut from the inside.
This subclaim is procedurally barred, as this evidence is not newly discovered. The record establishes that Jimenez has known of the existence of Taranco's pre-interview since before trial because it was mentioned in her sworn taped statement-a transcript of which was provided to trial counsel in discovery and included in NMPD's original submission to the records repository more than 18 years before the successive postconviction motion at issue was filed.
Even if this subclaim were not procedurally barred, it is without merit. The first prong under Brady is not satisfied because this allegedly suppressed information is neither exculpatory nor impeaching. The crossed-out lines describe Taranco hearing two bangs, investigating the noises, standing at the victim's door, and two encounters with the defendant, without any mention of how much time passed between these events. These lines of notes do not reveal any facts that are inconsistent with the rest of the page of notes or with Taranco's trial testimony, which was that she saw Jimenez twice on the evening of the victim's murder. First, Taranco testified that she saw Jimenez in the parking lot at approximately 7:55 p.m. Second, Taranco testified that she saw Jimenez coming down the stairs to the second floor from the third floor somewhere between 8:20 and 8:22 p.m., after she had already called the police, which Taranco testified was at least 10 to 15 minutes after she heard the noises coming from inside the victim's apartment. The crossed-out lines of the notes do not show that Jimenez was with Taranco at the victim's door while the attack was ongoing inside the victim's apartment, which would be exculpatory. Rather, these lines are almost identical to Taranco's trial testimony since hearing two bangs and observing Jimenez coming from the third floor while Taranco stood at the victim's door is consistent with the events and timeline articulated at trial.
Accordingly, because this subclaim is both procedurally barred and without merit we affirm the postconviction court's summary denial.
(2) Yvette Imhoff, Jimenez's former girlfriend
Jimenez next argues that the State committed a Brady violation when it failed to disclose information with respect to a phone interview of Jimenez's former live-in girlfriend, Yvette Imhoff. The State allegedly failed to provide a page of handwritten notes from an October 7, 1992, telephonic interview between Detective Ojeda and Imhoff. The page of notes contains a sentence that states, "Phyllis became friends w/ daughter." Imhoff did not testify at trial, but the written report by Detective Ojeda regarding his interview with Imhoff (which was previously disclosed) states that, in response to his question as to whether Jimenez or Imhoff ever knew the victim, Imhoff stated that she knew that her daughter had become friends with a lady downstairs, but that her daughter never mentioned her name. Jimenez claims that the sentence in the notes is newly discovered evidence that the person whom Imhoff's daughter became friends with was the victim and is Brady material because it is exculpatory. He asserts that the fact that the victim had a friendship with Jimenez's former girlfriend's daughter, and that Jimenez knew about it, shows that Jimenez had a positive relationship with *483the victim and that he had been inside her apartment on occasion-which explains his fingerprint on the inside of the victim's front door.
This subclaim is procedurally barred. Detective Ojeda's previously disclosed report expressly mentions the phone interview and the fact that Imhoff stated that her daughter had made friends with a lady downstairs. Moreover, Imhoff's statement was not without context, as Detective Ojeda's report plainly states that Imhoff gave this answer in response to his question of whether either she or Jimenez ever knew the victim. To the extent it is not clear from the context that the report's reference to a "lady downstairs" is in reference to the victim, with due diligence, Jimenez could have followed up years ago and discovered this information. In any event, if Jimenez had a good relationship with the victim and had been inside the victim's apartment on previous occasions, this would not be newly discovered evidence because Jimenez would have known it all along. Cf. Jimenez ,
Even without the procedural bar, however, the subclaim is without merit. The first prong under Brady is not satisfied because this allegedly suppressed information is not exculpatory. The handwritten sentence relied upon by Jimenez does not provide any information regarding whether Jimenez actually knew that his former girlfriend's daughter had befriended the victim. Nor does it show that Jimenez had any relationship with the victim whatsoever, let alone a good relationship. Moreover, the sentence does not relate in any way to the allegation that Jimenez had been inside the victim's apartment on other occasions, prior to the victim's murder. Nor does the sentence have any impeachment value. Imhoff did not testify at trial. Moreover, Detective Ojeda did not testify regarding his interview with Imhoff. Nor is Detective Ojeda's report from Imhoff's interview, in which it was clear that he was asking Imhoff about any contact that she or Jimenez had with the victim, viewed through the lens of his notes, which expressly references the victim's name, impeaching in the sense that it shows NMPD's investigation was not a search for the truth. Accordingly, there was not a Brady violation.
(3) Jimenez's Statements to Detectives Diecidue and Ojeda
In his third subclaim, Jimenez argues that NMPD's post-warrant disclosure of notes taken by Detectives Diecidue and *484Ojeda during their interview of Jimenez on the day of his arrest establish Brady , Giglio , discovery, and due process violations that entitle him to relief from his convictions and sentence of death, or, minimally, to an evidentiary hearing. This subclaim is procedurally barred and, in any event, without merit.
The notes at issue indicate that they were taken during an interview of Jimenez by Detective Diecidue at 2:50 p.m. on an unspecified date and during an interview of Jimenez by Detective Ojeda at 3:55 p.m. on an unspecified date, which Jimenez argues was October 5, 1992, as his arrest occurred at approximately 3:55 p.m. on that date. The notes suggest that Jimenez told Detective Diecidue that he knocked on the victim's door at approximately 7:00 p.m. on the evening of the murder to use her phone, but that she was using the phone, and that he later used a phone to call a cab at approximately 8:00 p.m., went downstairs to meet the cab, and saw the police. The notes also indicate that Jimenez talked to Detective Ojeda about the various residents of the apartment complex, telling him which residents lived in which apartments; disclosed that he had a "problem" with one of his neighbors (not the victim) because of "music"; and told Detective Ojeda what he was wearing on the day of the murder.
Jimenez's claim is procedurally barred. The fact that these statements were made by Jimenez and the fact that the detectives took notes while Jimenez made them is not newly discovered evidence because Jimenez necessarily had personal knowledge of these facts and because the detectives generally disclosed the substance of the conversations that occurred prior to Jimenez invoking his rights under Miranda .
Moreover, even without the procedural bar, Jimenez would not be entitled to relief on the merits. Although the record reveals that, despite being asked during their pre-trial depositions, both detectives failed to disclose the full content of Jimenez's statements to them (and also failed to document the full substance of those statements in their reports),
Nor has Jimenez proven a Giglio or due process violation. In his initial brief, Jimenez contends that "the lies and misrepresentations by Detectives Ojeda and Diecidue in their pretrial deposition testimony and in their police reports violated due process and amounted to a Giglio violation" and demonstrate that the State obscured relevant facts in order to obtain his convictions and sentence. We disagree.
Jimenez's allegations of false testimony and misleading argument by the State implicate Giglio 's prohibition against the State's knowing presentation of false testimony, to the extent that false testimony was actually presented at trial. See Jimenez ,
Here, while the detectives only revealed that they received "basic information" from Jimenez in their reports and depositions, meaning that the State necessarily failed to disclose the full substance of Jimenez's oral statements, it is clear that no false testimony was presented at trial. Only Detective Ojeda testified at trial, and he did not testify about Jimenez's cooperation or lack thereof with police during his interview. In fact, Detective Ojeda did not testify to any statements Jimenez made during his interview based on the State's *486agreement in connection with Jimenez's motion to suppress any statements made during that interview. Thus, because no testimony was presented at trial on these subjects, there is no Giglio violation. See Jimenez ,
Assuming, arguendo, that any argument by the prosecutor at trial was misleading in light of Jimenez's statements to detectives that might evince his cooperation with law enforcement or innocent contact with the victim or her apartment, Jimenez would still not be entitled to relief.
Considering the cumulative effect of what Jimenez contends was misleading argument in light of the totality of the evidence introduced at trial, there is no reasonable possibility that the force of any misleading argument by the State concerning Jimenez's alleged cooperation with law enforcement-which was not a feature at trial-added to the force of any misleading argument by the State concerning Jimenez's innocent contact with the victim or her apartment-where there was no evidence that Jimenez, even by his own statement, ever actually used the victim's phone or was otherwise ever in the position to innocently leave his fingerprint on the inside of the victim's front door-could have affected the jury's verdict. See Smith ,
Thus, even if Jimenez's subclaim regarding the recently disclosed detective notes of his interview by NMPD detectives were not procedurally barred, he would not be entitled to relief on the merits. Accordingly, we affirm the postconviction court's summary denial of this subclaim.
(4) Inmate Jeffrey Allen
Jimenez next argues that NMPD's 2018 records submission shows that the State committed a Brady violation by failing to disclose information with respect to Jeffrey Allen. Allen is an inmate who was housed with and who informed upon Jimenez but who did not testify against Jimenez at trial. See Jimenez ,
This subclaim is procedurally barred. The State previously disclosed a report by Detective Diecidue reflecting that, prior to his March 15, 1993, interview, "Allen had called several times and advised that he had information relating to this investigation." Further, Jimenez's former counsel deposed Allen on March 11, 1998, at which time Allen stated that he had written notes and several letters about his knowledge of the murder and given them to Detectives Ojeda and Diecidue. At this deposition, Allen stated that he met with the detectives more than once and also referenced phone calls with them. Collateral counsel could have made a specific public records request to NMPD to obtain Allen's letters and notes but did not do so, *487and in any event, the police reports in this case describe the information that Allen provided to the detectives. There is thus no new evidence that was unavailable to Jimenez by the exercise of due diligence.
Even without the procedural bar, this subclaim is without merit. The first prong under Brady is not satisfied because this information is not impeaching. Defense counsel could not have used these documents at trial for impeachment as evidence of prior inconsistent statements, because neither Allen nor Detective Diecidue testified at trial, and Detective Ojeda did not mention Allen in his trial testimony. Nor could the documents have been used at trial to impeach Detective Ojeda for bias or to impeach the caliber of the police investigation, because they do not contain information that shows partiality on the part of the police department. Nor is the information exculpatory, as Allen's status as a jailhouse informant for the State and unilateral communication attempting to benefit from that status have no bearing on the guilt or innocence of Jimenez, and Allen did not testify at trial. Accordingly, there was not a Brady violation. We affirm the postconviction court's summary denial of this subclaim.
(5) Steve Sessler, the private investigator
Jimenez's next subclaim concerns a fax coversheet contained in NMPD's post-warrant records disclosure that shows contact between law enforcement and a private investigator named Steve Sessler on October 16, 1992 (14 days after the victim's murder). Jimenez raised a related claim in 2005, in his first successive postconviction motion, concerning NMPD's collaboration with Sessler. Prior to the 1992 Minas murder at issue here, Sessler had investigated Jimenez in connection with the October 1990 death of Marie Debas. Sessler had been hired by Debas's boyfriend, Manuel Calderon, whom Jimenez alleged was a member of a drug cartel and had a vendetta against him because Jimenez previously had an affair with Debas.
This Court affirmed the denial of Jimenez's 2005 claim, concluding that it was procedurally barred because it was not based on newly discovered evidence:
[I]t had long been common knowledge that the North Miami Police Department was given information that originated from the investigation orchestrated by Calderon.... [W]hen Jimenez's trial counsel deposed Detective Diecidue on December 13, 1995, he confirmed that Sessler had provided him with information concerning Jimenez's possible involvement in the death of Debas while the investigation for the murder of Minas was ongoing.
Jimenez ,
If evidence of Calderon's influence had been presented during the trial, this would have opened the door to potentially damaging evidence concerning Jimenez's involvement in the death of Debas.
*488Thus, there is not a reasonable probability that if this information with regard to the influence of Calderon had been disclosed to Jimenez, the jury would have reached an alternative verdict.
Jimenez's present claim adds only that he has discovered within NMPD's 2018 records submission a fax coversheet showing that Sessler communicated with NMPD on October 16, 1992, two weeks into the investigation of the Minas murder. Jimenez asserts that this communication shows the influence of Sessler and Calderon on the investigation very early in the case. This is not new evidence. Accordingly, this claim is procedurally barred. It also fails on the merits for the reason that this Court previously articulated in affirming the denial of the Brady and Giglio claims related to Sessler that Jimenez raised in his first successive postconviction motion filed in 2005. See
(6) Anwar Ali, the cab driver
Jimenez also claims that NMPD's post-warrant disclosure contains new Brady material related to Anwar Ali, the cab driver who responded to Jimenez's call for a taxi on the night of the victim's murder but who never picked up Jimenez and, instead, picked up a man with a bleeding face several minutes and blocks away from the apartment complex where the victim was murdered. The postconviction court properly summarily denied this claim, which is procedurally barred and without merit.
In affirming the denial of Jimenez's first successive postconviction motion, this Court found procedurally barred, and alternatively meritless, Jimenez's claim that the State had committed a Brady violation by failing to disclose that it had repeatedly attempted to get Ali to identify Jimenez as the man with the bleeding face, even though Ali said the man was not Jimenez, essentially harassing him, and that these efforts had resulted in Ali's refusal to involve himself in this case further. Jimenez ,
In the claim at issue here, Jimenez does not suggest that NMPD's disclosure goes to the substance of the testimony that Ali would have had to offer had he testified at trial, namely "that he picked up a person, who stated that he had been mugged and was bleeding from the face, approximately sixteen blocks from the crime scene and approximately thirty minutes after the murder."
Jimenez's arguments are procedurally barred. That NMPD had Ali's contact information is not new evidence. Although Jimenez was unsuccessful in his attempt to subpoena Ali to testify at trial, there is plentiful evidence establishing that, with the exercise of due diligence, the defense could have contacted Ali. For example, defense counsel knew that the State had been able to contact Ali, as defense counsel extensively questioned both Detectives Ojeda and Diecidue about *489Ali during their respective pre-trial depositions. Further, during Detective Ojeda's deposition, defense counsel informed Detective Ojeda about statements regarding picking up a man with a bleeding face that Ali had allegedly made to an investigator for the defense (who also clearly had contact with Ali), and Detective Ojeda stated that he was going to follow up. With the exercise of due diligence, defense counsel could have, too.
The fact that Detective Diecidue wrote down Ali's name and phone number is also not new evidence since Jimenez knew that the detective had been in contact with Ali. While Jimenez claims that this notation reflects that Detective Diecidue interviewed Ali but chose not to take notes because the information Ali provided was favorable to Jimenez, the notes do not indicate that they are from an interview with Ali. But, even accepting for the sake of argument that Jimenez is correct, this is also not new evidence. If it actually occurred, whatever impeachment value Detective Diecidue's decision to document only a name and number may have had is part and parcel of the impeachment value inherent in Detective Diecidue's "lost" report of Ali's interview discussed by both Detectives Diecidue and Ojeda in their pre-trial depositions, which is not new because Jimenez has known about the "lost" report since 1993.
Similarly, although Jimenez argues that Detective Ojeda never disclosed that he had an interview with Ali, the recently disclosed notes suggest that Detective Ojeda followed up with Ali after his July 1993 deposition, just as he told defense counsel at the deposition he was going to do.
Finally, even without the procedural bar, Ali's testimony would not have been exculpatory or impeaching as required to establish the first prong of Brady for the reasons we previously expressed. See Jimenez ,
(7) Detective Ojeda's trial preparatory materials
Finally, Jimenez argues that an 11-page document that he claims was written by the prosecutor to prepare for Detective Ojeda's trial testimony, and which the postconviction court denied Jimenez leave to address in his successive postconviction motion, is new evidence of a Brady violation. Had his motion to amend been granted, Jimenez would have argued that this document-which he acknowledges is consistent with Detective Ojeda's trial testimony-is undisclosed impeachment evidence. Even assuming for the sake of argument that the postconviction *490court should have granted Jimenez's motion to amend, this claim is both procedurally barred and conclusively refuted by the record. See Zakrzewski ,
"[P]rosecutors are permitted to discuss testimony with witnesses ...." Hartley v. State ,
Furthermore, the record conclusively refutes Jimenez's speculation of nefarious intent on behalf of the State in terms of the prosecutor somehow working with Detective Ojeda to keep information about a white van from the jury because the word "out" was written in the margin next to questions regarding the van. Before Detective Ojeda testified at trial, the prosecutor asked another NMPD officer, Officer Sidd, a question concerning whether Officer Cardona's investigation of the white van led her to conclude that the individuals in the van were not involved in the murder that is virtually identical to the question denoted with the word "out" in the document at issue, and the trial court sustained defense counsel's objection. In other words, it was not the prosecutor but the trial court that (properly) kept this (hearsay) testimony "out," although the jury was permitted to hear testimony from at least four witnesses, three of whom were law enforcement officers, relating to the white van.
Accordingly, even if the recently disclosed document presents anything new, on the merits, because the document is neither exculpatory nor impeaching, it fails under the first prong of Brady .
In conclusion, all seven of the subclaims that Jimenez raised or sought to raise in his sixth successive postconviction motion are procedurally barred and, in any event, without merit. Although Jimenez argues that the postconviction court did not properly consider the force of all of the Brady and Giglio violations evinced in the new evidence when it assessed materiality, there is no newly discovered evidence in NMPD's post-warrant submission. Accordingly, all of Jimenez's claims are procedurally barred and due to be summarily denied on that basis alone. To the extent our alternative merits analysis reached materiality for the Brady violations alleged in Jimenez's third and fifth subclaims, adding up the force of Jimenez's own statements-that do not place him in the position to innocently leave his fingerprint on the inside of the victim's front door or put him cooperating with law enforcement in any way that mattered to the evidence actually presented at trial-plus the force of a fax coversheet showing a Sessler/Calderon connection to NMPD's investigation of the victim's murder-that if introduced would open the door to damaging evidence concerning Jimenez's involvement in another person's death-and weighing it against the totality of the evidence introduced *491at trial, this evidence could not "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Smith ,
CONCLUSION
For the reasons above, we affirm the postconviction court's orders summarily denying Jimenez's fifth and sixth successive postconviction motions pursuant to rule 3.851, the postconviction court's order denying Jimenez's motion to correct illegal sentence pursuant to rule 3.800(a), and the postconviction court's order denying Jimenez's motion to amend his sixth successive postconviction motion. We further lift the stay of execution entered on August 10, 2018. No rehearing will be entertained by this Court, and the mandate shall issue immediately.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.
Jimenez's execution was scheduled for 27 days later, on August 14, 2018, but this Court subsequently stayed his execution.
Huff v. State ,
Brady v. Maryland ,
Giglio v. United States ,
"[R]ecords requests under Rule 3.852(h) are limited to persons and agencies who were the recipients of a public records request at the time the defendant began his or her postconviction odyssey; whereas, records requests under Rule 3.852(i) must show how the requested records relate to a colorable claim for postconviction relief and good cause as to why the public records request was not made until after the death warrant was signed." Hannon ,
Jimenez's request to DOC states, in pertinent part, that
[t]he public records requested are for any files, records, reports, letters, memoranda, notes, drafts and/or electronic mail in the possession or control of [DOC] pertaining to Mr. Jimenez that were received or produced by [DOC] since Mr. Jimenez's previous request; and or any documents that were, for any reason, not produced previously.
Asay v. State (Asay VI) ,
In its order summarily denying relief on this claim, the postconviction court explained the relevant facts from Branch's execution:
Shortly before the execution process began, Branch gave a statement calling Governor Rick Scott and Attorney General Bondi "cowards" for failing to execute him in person. As the administration of the etomidate commenced, Branch released a guttural yell or scream. He then yelled out "murderers" three times. Branch's legs were moving, his head moved, and his body was shaking. He calmed down within a minute. The appropriate consciousness check was performed before the subsequent administration of the second and third drugs.
Jimenez could not prevail on his challenge to the current protocol in any event because he has also failed to meet his burden under Glossip to "identify a known and available alternative method of execution that entails a significantly less severe risk of pain." Asay VI ,
The standard of review is de novo. See Williams v. State ,
In the sworn taped statement of Taranco on October 7, 1992, Detective Ojeda states that he and Detective Diecidue spoke with Taranco immediately prior to beginning the taped interview. He said, "[W]e spoke to you natural before we went on tape and interviewed you. And we spoke to you about the homicide and what role you played in it on October 2nd."
Besides Detective Ojeda, Taranco is the only other person implicated by Jimenez's claims who testified at trial. Jimenez's frequent use of the phrase "Giglio / Brady claims" in his briefs filed in this Court, coupled with his argument that the notes from Taranco's pre-interview may be true while her trial testimony may not be, makes it unclear whether Jimenez is also arguing that the notes demonstrate that the State knowingly presented false testimony by Taranco in violation of Giglio . To the extent Jimenez is making this claim, because the notes do not show that Taranco's trial testimony was false, they do not evince a Giglio violation. See Mosley ,
In this subclaim, Jimenez points out that the notes regarding Imhoff's interview also contain the phrase "wh/van unk span/male." However, beyond referencing this fact in a footnote in his motion below, Jimenez did not argue how this note entitles him to relief, and it is still not clear whether or how he contends it does. Nevertheless, that Jimenez knew of the existence of and, thus, had the ability to follow up on the presence of a white van in connection with this case is clear from a review of the trial transcript. A police officer (Officer Cardona) had been assigned to investigate a white van seen in the parking complex of the apartment near the victim's balcony, and, although this officer did not testify at trial, she wrote a report and gave a deposition about her investigation. Further, at trial, testimony regarding a white van being parked under the victim's balcony ranged from witnesses who saw the van, witnesses who said they did not see it, and witnesses who were alleged to have made inconsistent statements as to whether they saw it or not. This is not newly discovered evidence.
Detective Ojeda's notes also reference the time of 8:00 p.m., a cab, and "Vig," which Jimenez suggests is shorthand for "Virginia." Testimony at trial showed that Jimenez used his neighbor Virginia Taranco's phone to call a taxi after Taranco had called the police upon becoming concerned for the victim's welfare.
Miranda v. Arizona ,
The applicable discovery rule did not require the State to provide the detectives' notes to Jimenez. See Fla. R. Crim. P. 3.220(b)(1)(B). However, because these notes show the substance of statements made orally by Jimenez, the defendant, the State did have a discovery obligation to reveal their contents, regardless of whether they constitute Brady material or evince a Giglio or other due-process violation. See Fla. R. Crim. P. 3.220(b)(1)(C).
After Jimenez's convictions and sentence in this case, Jimenez pled guilty to the second-degree murder of Debas, whose death had been ruled an accidental drug overdose before Sessler's involvement.
Although Detective Ojeda's notes do not include the year, they identify the month as September. Because the victim was murdered in October of 1992, an interview in September in connection with the murder investigation would necessarily have had to have occurred at least a year after the victim's murder, in September 1993, which also necessarily would have been after Detective Ojeda's July 1993 deposition.
Concurring in Part
I agree that Jimenez is not entitled to relief on his second post-warrant appeal regarding newly discovered evidence (No. SC18-1321). See majority op. at 476-91.
Florida's Lethal Injection Protocol
For the fifth time since this Court's decision in Asay VI ,
In my dissenting opinion in Asay VI , I explained that Asay was unconstitutionally denied access to documents that may have supported his claim that Florida's new lethal injection protocol-which replaced midazolam with etomidate as the first drug in the protocol, intended to induce unconsciousness-violates the Eighth Amendment's bar against cruel and unusual punishment.
As to the administration of the first drug in the lethal injection protocol, etomidate, the postconviction court wrote in its order denying Jimenez's motion: "As the administration of the etomidate commenced, Branch released a guttural yell or scream.... Branch's legs were moving, his head moved, and his body was shaking." Order, at 4.
As to the second and third drugs, Jimenez alleges that-according to Dr. Lubarsky's review of Florida's lethal injection protocol and records from Branch's execution-Branch had only "1/10th of the clinical dose of etomidate... in his bloodstream" by the end of the execution process, an amount that is "insufficient to ensure that" he did "not feel the excruciating pain of the second and third drugs." Id. at 31. In Dr. Lubarsky's opinion, Branch's scream was "objective evidence" of his "experiencing significant pain during [the] execution," id. at 35-not "in protest of his execution or a reaction to etomidate." Majority op. at 475. Of course, this information was unknown when this Court rejected Asay's challenge to the new lethal injection protocol.
In my view, this new information makes it impossible to allow another execution to proceed without thoroughly reviewing whether Florida's lethal injection protocol subjects defendants to a substantial risk of pain, in violation of the Eighth Amendment. Thus, I would reverse and remand for an evidentiary hearing.
Further, I reiterate my long-standing concern that a one-drug protocol has a greater likelihood of reducing any substantial risk of pain. Specifically, Florida's continued use of a paralytic agent, such as rocuronium bromide, could lead to a situation where defendants like Jimenez are entirely aware of the execution, including the attendant extreme pain and suffering, but unable to inform anyone of or indicate such awareness. See Initial Br., at 49. I again urge the executive branch to adopt a one-drug protocol to avoid this unconstitutional risk. See Asay VI ,
Short Warrant Period
Finally, I note the seriously constricted warrant period in this case. As the majority explains, Governor Scott signed Jimenez's death warrant on July 18, 2018, scheduling his execution for 27 days later-August 14, 2018. Majority op. at 470 & n.1. The original scheduling order determined July 31, 2018, as the "deadline for completing proceedings before the postconviction court." Majority op. at 471.
This extremely short warrant period created a fire drill approach to the review of Jimenez's claims. It was not until after the postconviction court denied Jimenez's sixth successive postconviction motion (filed on August 6, 2018) that this Court entered a stay of execution. See majority op. at 470-71. The postconviction court and Jimenez's attorneys were forced to race against the clock in reviewing and presenting all of Jimenez's claims, respectively. But for this Court entering a stay of execution as a result of Jimenez's second post-warrant appeal, this Court would have also had inadequate time to thoroughly review his claims.
While I realize that all proceedings should be completed by the time the Governor signs a death warrant, some claims, such as those challenging the execution method, cannot be raised or evaluated until the signing of the death warrant. At the least, defendants must have adequate time to investigate and raise and courts must have adequate time to properly review these warrant-based claims.
Since executions resumed in Florida after Hurst , the judicial system-the circuit courts, this Court, and the United States Supreme Court-has been faced with increasingly short warrant periods, the shortest being the one in this case-a mere 27 days.
CONCLUSION
For these reasons, while I agree that Jimenez is not entitled to relief on his newly discovered evidence claims, I would reverse and remand for an evidentiary *494hearing on his claims challenging Florida's lethal injection protocol.
QUINCE, J., concurs.
As to the majority's discussion of this issue, I reiterate the importance of "express[ing] the prejudice prong of Brady [v. Maryland ,
Asay v. State (Asay VI ),
The postconviction court's Order Denying Successive Motion to Vacate Judgments of Conviction & Sentence is cited herein as "Order."
Indeed, it appears that many other states that still impose the death penalty have adopted one-drug protocols. Eight states-Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas, and Washington-have used a single-drug method for executions. Six other states-Arkansas, California, Kentucky, Louisiana, North Carolina, and Tennessee-have announced plans to use a one-drug protocol. Death Penalty Info. Ctr., State by State Lethal Injection , https://deathpenaltyinfo.org/state-lethal-injection (last visited Aug. 6, 2018).
The warrant period for Asay's execution was 52 days. Asay VI ,
Reference
- Full Case Name
- Jose Antonio JIMENEZ, Appellant, v. STATE of Florida, Appellee. Jose Antonio Jimenez, Appellant, v. State of Florida, Appellee.
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