Opposition Brief — Brett A. Bogle, Petitioner v. Florida, et al.

Supreme Court briefDec 13, 2017

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DOCKET NO. 17-6329

IN THE SUPREME COURT OF THE UNITED STATES

BRETT A. BOGLE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF FLORIDA

PAMELA JO BONDI

ATTORNEY GENERAL

CANDANCE M. SABELLA*

Chief Assistant Attorney General

Florida Bar No. 0445071

*COUNSEL OF RECORD

LISA MARTIN

Assistant Attorney General

Florida Bar No. 72138

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

candance.sabella@myfloridalegal.com

lisa.martin@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether the Florida Supreme Court’s fact-based determinations that counsel was

not ineffective, on multiple claims, should be reviewed where the court used the correct legal

analysis to reach its conclusion?

Whether the Florida Supreme Court’s fact-based determinations that no relief was

warranted pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and/or Giglio v. United States, 405

U.S. 150, 153 (1972), should be reviewed where the court used the correct legal analysis to reach

its conclusion?

Whether the Florida Supreme Court’s determination that no relief was warranted,

pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and/or Giglio v. United States, 405 U.S. 150

(1972), should be reviewed, where the defense had no pretrial right to inspect the grand jury

testimony under Florida law?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................................................................................. i

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF CITATIONS .............................................................................................................. iii

CITATION TO OPINION BELOW ............................................................................................... 1

JURISDICTION ............................................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................... 1

STATEMENT OF THE CASE....................................................................................................... 3

REASONS FOR DENYING THE WRIT .................................................................................... 14

I ......................................................................................................................................... 16

THIS COURT SHOULD NOT GRANT CERTIORARI TO REVIEW THE

FLORIDA SUPREME COURT’S FACT-BASED DETERMINATIONS THAT

TRIAL COUNSEL WAS NOT INEFFECTIVE IN HIS REPRESENTATION OF

PETITIONER DURING THE GUILT PHASE OF HIS TRIAL. .................................... 16

II ........................................................................................................................................ 21

THIS COURT SHOULD NOT GRANT CERTIORARI TO REVIEW THE

FLORIDA SUPREME COURT’S DENIAL OF RELIEF ON BOGLE’S CLAIMS

PURSUANT TO BRADY V. MARYLAND, 373 U.S. 83 (1963), AND GIGLIO V.

UNITED STATES, 405 U.S. 150 (1972). .......................................................................... 21

CONCLUSION ............................................................................................................................. 30

CERTIFICATE OF SERVICE ..................................................................................................... 30

TABLE OF CITATIONS

Cases

Banks v. Dretke,

540 U.S. 668 (2004) .................................................................................................................. 16

Bartlett v. Stephenson,

535 U.S. 1301 (2002) ................................................................................................................ 15

Bogle v. State,

213 So. 3d 833 (Fla. 2017) ................................................................................................ passim

Bogle v. State,

655 So. 2d 1103 (Fla.),

cert denied, 516 U.S. 978 (1995) .......................................................................................... 4, 14

Brady v. Maryland,

373 U.S. 83 (1963) ............................................................................................................. passim

Bunting v. Mellen,

541 U.S. 1019 (2004) ................................................................................................................ 15

City and County of San Francisco, California v. Sheehan,

135 S. Ct. 1765 (2015) .............................................................................................................. 14

Frye v. United States,

293 F. 1013 (1923).................................................................................................................... 20

Giglio v.United States,

405 U.S. 150 (1972) ........................................................................................................... passim

Herb v. Pitcairn,

324 U.S. 117 (1945) .................................................................................................................. 29

Illinois v. Gates,

462 U.S. 213 (1983) .................................................................................................................. 17

Kyles v. Whitley,

514 U.S. 419 (1995) ............................................................................................................ 16, 17

Michigan v. Long,

463 U.S. 1032 (1983) .......................................................................................................... 23, 29

Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395 (1959) ............................................................................................................ 28, 29

iii

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 70 (1955) .................................................................................................................... 15

Rockford Life Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182 (1987) .................................................................................................................. 15

Sochor v. Florida,

504 U.S. 527 (1992) .................................................................................................................. 29

Strickland v. Washington,

466 U.S. 668 (1984) ...................................................................................................... 17, 18, 21

Texas v. Mead,

465 U.S. 1041 (1984) ................................................................................................................ 15

Tolan v. Cotton,

134 S. Ct. 1861 (2014) ........................................................................................................ 14, 15

United States v. Johnston,

268 U.S. 220 (1925) .................................................................................................................. 15

Webb v. Webb,

451 U.S. 493 (1981) .................................................................................................................. 17

Other Authorities

§ 905.27, Fla. Stat. ........................................................................................................................ 29

28 U.S.C. § 1257 ............................................................................................................................. 1

Sup. Ct. R. 10 .......................................................................................................................... 14, 15

CITATION TO OPINION BELOW

The published opinion of the Florida Supreme Court appears as Bogle v. State, 213 So. 3d

833 (Fla. 2017).

JURISDICTION

Petitioner asserts that this Court’s jurisdiction is based upon 28 U.S.C. § 1257. Respondent

acknowledges that section 1257 sets out the scope of this Court’s certiorari jurisdiction, but

submits that this case is inappropriate for the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In addition to the constitutional provisions cited in the Petitioner’s brief, the following is

relevant:

Florida Statute section 905.27: “Testimony not to be disclosed; exceptions”.

(1) A grand juror, state attorney, assistant state attorney, reporter, stenographer,

interpreter, or any other person appearing before the grand jury shall not disclose

the testimony of a witness examined before the grand jury or other evidence

received by it except when required by a court to disclose the testimony for the

purpose of:

(a) Ascertaining whether it is consistent with the testimony given by the witness

before the court;

(b) Determining whether the witness is guilty of perjury; or

(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge,

or communicate to any other person, or knowingly to cause or permit to be

published, broadcast, disclosed, divulged, or communicated to any other person, in

any manner whatsoever, any testimony of a witness examined before the grand jury,

or the content, gist, or import thereof, except when such testimony is or has been

disclosed in a court proceeding. When a court orders the disclosure of such

testimony pursuant to subsection (1) for use in a criminal case, it may be disclosed

to the prosecuting attorney of the court in which such criminal case is pending, and

by the prosecuting attorney to his or her assistants, legal associates, and employees,

and to the defendant and the defendant’s attorney, and by the latter to his or her

legal associates and employees. When such disclosure is ordered by a court

pursuant to subsection (1) for use in a civil case, it may be disclosed to all parties

to the case and to their attorneys and by the latter to their legal associates and

employees. However, the grand jury testimony afforded such persons by the court

can only be used in the defense or prosecution of the civil or criminal case and for

no other purpose whatsoever.

(3) Nothing in this section shall affect the attorney-client relationship. A client shall

have the right to communicate to his or her attorney any testimony given by the

client to the grand jury, any matters involving the client discussed in the client’s

presence before the grand jury, and any evidence involving the client received by

or proffered to the grand jury in the client’s presence.

(4) Persons convicted of violating this section shall be guilty of a misdemeanor of

the first degree, punishable as provided in s. 775.083, or by fine not exceeding

$5,000, or both.

(5) A violation of this section shall constitute criminal contempt of court.

STATEMENT OF THE CASE

Petitioner, Brett A. Bogle, was convicted of first-degree murder, and sentenced to death.

The following facts are drawn from the Florida Supreme Court’s opinion affirming Bogle’s direct

appeal:

Margaret Torres (the victim) was the sister of Katie Alfonso and stayed at Alfonso's

house four or five nights a week. In June 1991, Bogle met Alfonso and shortly

thereafter he moved in with Alfonso and the victim. Bogle and the victim did not

get along and Alfonso eventually asked Bogle to move out. The following week,

Bogle, Alfonso, the victim, and another person went out together and things seemed

to be going better. During the outing, however, Bogle and the victim began to argue

again. Subsequently, Alfonso and the victim refused to allow Bogle into Alfonso's

house. Bogle then broke through the screen door of Alfonso's house, grabbed

Alfonso's neck to push her out of the way, grabbed the victim's arm to remove the

telephone from her hand as she tried to call 911, pulled the telephones out of the

kitchen and bedroom, and took clothing from the house. As he left the house, Bogle

told the victim that she would not live to tell about it if she called the police and

pressed charges. In response to the victim's uncompleted call to 911, a deputy

sheriff arrived shortly after Bogle left. The deputy referred the matter to the state

attorney's office. Several days later, Bogle called Alfonso and again threatened the

victim, stating that, if the victim pressed charges, she would not live to tell about it.

About two weeks later, Bogle called Alfonso to ask if he could come over to her

house. The victim was out for the evening. When Alfonso told Bogle that he could

not come over, he became furious and hung up. Later that night, Bogle and the

victim ran into each other at a bar called Club 41. Witnesses saw them talking

briefly. Witnesses also noticed that Bogle was clean and had no noticeable injuries

of any kind when he arrived at Club 41. The victim left Club 41 at about 1 a.m.;

Bogle left approximately five minutes later. About forty-five minutes after that,

Bogle approached a car outside Club 41 and asked for a ride. At that time, his

forehead was scratched, his clothes were dirty, and his crotch was wet.

The next day, the victim's nude and badly beaten body was found outside an

establishment located next to Club 41. Her head had been crushed with a piece of

cement, and she had died of blows to the head. Additionally, she had semen in her

vagina and trauma to her anus consistent with sexual activity that was likely

inflicted before death. The DNA extracted from the semen was consistent with

Bogle's DNA (12.5% of Caucasian males could have contributed the semen), and a

pubic hair found on the crotch area of Bogle's pants matched the victim's.

Bogle put on no evidence in his defense. The jury found him guilty of burglary of

Alfonso's home with force, retaliation against the victim as a witness to that

burglary, and first-degree murder of the victim. A penalty phase proceeding was

held on the first-degree murder conviction, and the jury recommended death by a

seven-to-five vote. The trial judge, however, granted a new penalty phase

proceeding after determining that improper rebuttal evidence had been presented

by the State.

At the second penalty phase proceeding, the State presented the same evidence it

relied on in the guilt phase. Bogle put on eight witnesses who testified that Bogle

had been subjected to physical and mental abuse as a child, had used drugs at his

father's urging from the time he was five or six years old, was under the influence

of alcohol at the time of the murder, had a personality disorder and suffered from

some mental disturbance at the time of the murder, was kind to others, and had been

injured in an automobile accident a week before the murder. The jury recommended

death by a ten-to-two vote. The trial judge subsequently sentenced Bogle to death,

finding four aggravating circumstances: (1) previous conviction of a violent felony

(burglary with force on Alfonso and the victim two weeks before the murder); (2)

the murder was committed while engaged in the commission of a sexual battery;

(3) the murder was committed for the purpose of avoiding arrest; and (4) the murder

was heinous, atrocious, or cruel (HAC). In mitigation, the trial judge gave some

weight to the statutory factor of impaired capacity but stated that substantial

impairment had not been proven; gave substantial weight to Bogle's family

background; little weight to his alcohol and drug abuse; gave some weight to his

good conduct during trial; gave some, but not a great deal, of weight to his kindness

to others; and gave no weight to his involvement in an automobile accident. Bogle

also received consecutive sentences of life in prison for the burglary-with-assaultor-battery conviction and five years in prison for the retaliation-against-a-witness

conviction.

Bogle v. State, 655 So. 2d 1103, 1105–06 (Fla. 1995).

Postconviction Proceedings

Bogle’s postconviction motion was filed on or about March 14, 1997. Relief was denied

on October 25, 2011. Bogle filed a notice of appeal of the denial of his postconviction motion to

the Florida Supreme Court on December 12, 2011. Bogle’s challenge to the FBI testing of the hair

retrieved from Bogle’s pants was on appeal before the Florida Supreme Court in Case No. SC112403. Defendant Bogle filed a successive motion in the postconviction court on or about January

23, 2014, once again seeking review of the FBI testing of a hair sample found on the Defendant’s

pants. At the February 13, 2014 status hearing, the postconviction court entered a written order

granting the DNA testing which, in 2015, showed that the victim’s mitochondrial DNA matched

that of the hair recovered from Bogle’s clothing.

The Florida Supreme Court issued its opinion February 9, 2017, affirming the denial of

postconviction relief and denying Defendant’s petition for writ of habeas corpus. Concerning the

ineffective assistance of guilt phase counsel, the Florida Supreme Court found that, even if there

had been deficiency, no prejudice could be shown:

Bogle claims that his trial counsel failed to investigate his September 6, 1991, car

accident. Specifically, Bogle asserts that trial counsel was deficient in failing to

review medical records and photographs, speak with anyone who observed Bogle

between the accident and the murder, retain an expert, and present evidence that he

was physically incapable of committing the murder. The trial court denied this

claim, observing that Bogle failed to provide any evidence at the evidentiary

hearing that the car accident injury rendered him physically incapable of

committing the murder.

At trial, no witnesses testified to observing any injuries on Bogle before he left Club

41 except Phillip Alfonso who saw a scar on Bogle's right side which Bogle claimed

was from an accident. At the evidentiary hearing, Mary McFarland, who married

Bogle on death row, testified that Bogle had injuries to his face a day before the

murder and opined that there was no way Bogle was capable of committing the acts

as alleged. Bogle's mother testified that the car accident punctured Bogle's lung,

that he had a tube in his side, he had broken some of his ribs, his face was “all

messed up ... [on h]is forehead,” and he was sore. She believed that she informed

Bogle's trial counsel of photographs taken of Bogle at the hospital. Bogle's prior

postconviction counsel obtained photographs pertaining to Bogle's car accident

from Bogle's civil lawyer. Bogle's trial counsel did not recall possessing Bogle's

hospital photographs. Dr. Edward Willey, a forensic pathologist, testified at the

evidentiary hearing that the lacerations Bogle sustained from the car accident most

likely would not have healed completely within ten days. However, on crossexamination, Dr. Willey could not exclude the possibility that a preexisting

laceration reopened on the day of the murder.

Even if guilt phase counsel was deficient in failing to effectively show that some

of Bogle's scratches originated from his accident, we conclude that Bogle has not

demonstrated prejudice. Bogle had motive to kill Torres and had threatened her life.

Bogle's DNA was consistent with DNA found in the victim's vagina. A pubic hair

found near the crotch of Bogle's pants matched Torres. Bogle has not established

that counsel's showing his scratches were sustained in a car accident would have

undermined confidence in the outcome of his case. Therefore, counsel's failure to

make such a showing was not prejudicial, and we deny relief on this claim.

Bogle also claims his guilt phase counsel was deficient for failing to present Everett

Smith's testimony relating to events on September 1, 1991. According to Bogle,

Smith's testimony would have undermined motive for Bogle to kill Torres. In

denying this claim, the trial court found that Smith's testimony would have had little

substantive or impeachment value. At the evidentiary hearing, Smith testified that

neither Katie Alfonso nor Torres expressed any fear while being around Bogle,

even when he was violent, and described a September 1, 1991, incident

demonstrating this lack of fear. We find that Smith's testimony would not have

undermined Bogle's motive to kill Torres and conclude that trial counsel was not

deficient for failing to present Smith's testimony at trial.

Bogle additionally claims that trial counsel was deficient for failing to present the

deposition of Roger Kelly, who passed away before trial. Bogle asserts that Kelly's

deposition establishes that on the night in question, Torres was dancing with a man

other than Bogle and arguing with Guy Douglas. The trial court denied this claim,

finding that the deposition could not legally be introduced as substantive evidence.

We agree. Because Kelly's deposition was not admissible as substantive evidence,

we deny Bogle's claim that his trial counsel was deficient in this regard. See State

v. Contreras, 979 So. 2d 896, 911 (Fla. 2008) (“[A] deposition that is taken pursuant

to rule 3.220 is only admissible for purposes of impeachment and not as substantive

evidence.”) (citing Rodriguez v. State, 609 So. 2d 493 (Fla. 1992)). Moreover, the

deposition was not admissible as substantive evidence under Chambers v.

Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

Bogle also claims that his trial counsel was deficient in failing to demonstrate that

the hair comparison in this case was unreliable and flawed, failing to acquire Agent

Michael Malone's bench notes, and failing to retain an expert. At trial, Malone

concluded as follows:

In the debris reported as being from Mr. Bogle's pants, I was able to find one

Caucasian pubic hair which microscopically matched the pubic hairs of Margaret

Torres. In other words, it was microscopically indistinguishable from her's [sic]

and, therefore, I concluded this one pubic hair from the pants was consistent with

coming from Margaret Torres.

Malone acknowledged, on cross-examination, that the pubic hair was naturally

removed, that there was no way to determine how long the hair had been removed,

and that hair comparisons do not constitute a basis for absolute personal

identification.

At the evidentiary hearing, Bogle proffered the deposition of mitochondrial DNA

expert Dr. Terry Melton who criticized Malone for using potentially misleading

words and making conclusions without conducting DNA testing on the sample. Dr.

Melton did not state whether she would have been available to testify at Bogle's

trial, nor did she know whether, at that time, labs were conducting mitochondrial

DNA testing on hairs for criminal defense attorneys. The evidentiary hearing also

revealed that studies relating to mitochondrial DNA and the proficiency of hair

microscopic analysis were unavailable at that time. The trial court did not give Dr.

Melton's testimony great weight.

Steven Robertson, an expert in the field of hair analysis and comparison, concluded

at the evidentiary hearing that Malone's trial testimony matching Torres's pubic hair

and the hair from Bogle's pants was not inconsistent with his lab report, but was

inconsistent with Malone's bench notes. Robertson determined that Malone testified

“fairly” and within the bounds of his expertise. We conclude that Bogle has not

demonstrated that the defense's failure to obtain Malone's bench notes was outside

the broad range of reasonably competent performance under prevailing

professional standards at the time of trial. See Long v. State, 118 So. 3d 798 (Fla.

2013). In addition, Bogle failed to present evidence that a mitochondrial DNA

expert, such as Dr. Melton, or a microscopic hair analysis expert, would have been

available to testify at trial, or in the preparation thereof. Accordingly, we deny relief

on this claim.

Bogle next claims that his trial counsel was deficient in failing to request a Frye

hearing to challenge the DNA evidence and show that the F.B.I. did not follow

accepted testing procedures. A Frye hearing determines whether an expert's

scientific opinion is admissible. Zack v. State, 911 So. 2d 1190, 1197 (Fla. 2005).

To be admissible, an expert opinion must be based on techniques that have been

generally accepted by the relevant scientific community and found to be reliable.

Id. (citing Frye, 293 F. at 1014). However, Frye is only utilized where the science

at issue is new or novel. Id. at 1198. In denying this claim, the trial court determined

that Bogle failed to show that the RFLP DNA evidence would have been

inadmissible at trial had counsel requested a Frye hearing.

At the evidentiary hearing, Dr. Randell Libby, an expert in human molecular

genetics and forensics DNA analysis, testified that RFLP was not generally

accepted in 1992; instead, RFLP was reviewed on a case-by-case basis. Although

Dr. Libby maintained that there were inconsistencies in Bogle's case which raise a

concern about the possibility of contamination or something else producing an

inconsistent result, Dr. Libby could not identify any problems with the chain of

custody, nor did he have direct knowledge of improper evidence storage causing

degradation of evidence. Dr. Libby could not recall any previous case where he

testified and the evidence was ruled inadmissible. Dr. Libby said he would have

testified at a Frye hearing in this kind of case in 1991 and 1992.

Dr. Deadman opined at the evidentiary hearing that F.B.I. procedures employed in

1991 and 1992 for RFLP DNA examinations produced “very reliable” results and

that F.B.I. lab procedures in RFLP DNA analysis in this case were generally

accepted in the relevant scientific community. Dr. Martin Tracey, an expert in

population genetics and DNA analysis, saw no indication of contamination, having

reviewed Dr. Deadman's RFLP analysis in this case. Based on our review of the

record, we conclude that Bogle has not demonstrated that trial counsel was deficient

for failing to request a Frye hearing. Therefore, we affirm the trial court's denial of

relief.

In his final claim of ineffective assistance of guilt phase counsel, Bogle contends

that his trial counsel was deficient in failing to impeach Phillip and Tammy

Alphonso and Jeffrey Trapp. The Alphonsos did not testify at the evidentiary

hearing. As noted above, Bogle has not established that Trapp's community control

condition was still in effect on the night of the murder. We therefore deny relief,

concluding that Bogle has not demonstrated that his trial counsel was deficient.

Bogle, 213 So. 3d at 845-48. Concerning the Brady and Giglio claims, the Florida Supreme Court

denied relief because the evidence in question, even if improperly withheld by the prosecution,

lacked materiality. It denied Bogle’s claims thusly:

Bogle contends that the trial court erred in denying his Brady and Giglio claims.

This Court, in Franqui v. State, 59 So. 3d 82 (Fla. 2011), articulated the standard

of review for Brady and claims as follows:

Brady requires the State to disclose material information within its possession

or control that is favorable to the defense. To demonstrate a Brady violation,

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

exculpatory or impeaching, (2) was willfully or inadvertently suppressed by

the State, and (3) because the evidence was material, the defendant was

prejudiced. To meet the materiality prong of Brady, 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.” “...

[M]ateriality under Brady requires a probability sufficient to undermine

confidence in the outcome.” [For t]he materiality inquiry ... [“]the question is

whether ‘the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.’ ” “It

is the net effect of the evidence that must be assessed.” “Although reviewing

courts must give deference to the trial court's findings of historical fact, the

ultimate question of whether evidence was material resulting in a due process

violation is a mixed question of law and fact subject to independent appellate

review.”

In order to prove a Giglio violation, “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.” If the

first two prongs are established, the false evidence is deemed material if there

is any reasonable possibility that it could have affected the jury's verdict. The

State must then “prove that the false testimony was not material by

demonstrating it was harmless beyond a reasonable doubt.” Under the

harmless error test, the State must prove “ ‘there is no reasonable possibility

that the error contributed to the conviction.’ ”

Both Giglio and Brady claims present mixed questions of law and fact. Thus,

as to findings of fact, [the Court] defer[s] to the lower court's findings if they

are supported by competent, substantial evidence. “[T]his Court will not

substitute its judgment for that of the trial court on questions of fact, likewise

of the credibility of the witnesses as well as the weight to be given to the

evidence by the trial court.” We review the trial court's application of the law

to the facts de novo.

Franqui, 59 So. 3d at 101–02 (citations omitted).

A. Information Regarding an Accomplice

First, the trial court found that Bogle failed to show that the State possessed and

failed to disclose information regarding Guy Douglas that was favorable to the

defense. The record reveals a handwritten note composed by prosecutor Karen Cox

which states: “talk to re: Guy Douglas confessed to being involved.” Above the

statement was the name “Marcia Baurle” and “Guy Douglas 92–7731 Capias.” We

conclude that Bogle met his burden of showing under Brady that this note is

favorable, exculpatory evidence that was suppressed by the State. At the evidentiary

hearing, Cox had no recollection of a witness telling her at trial that Douglas was

involved in the murder. Cox interpreted the note to mean that she was supposed to

talk to somebody about whether or not Douglas confessed. Cox believed that the

information was probably not provided by Marcia Turley; Cox did not recall

speaking with Turley. Cox testified that had any other person confessed to the

murder, she would have immediately turned it over to the defense.

Turley testified at the evidentiary hearing that when Douglas told her Bogle was

brought in for questioning relating to Torres's murder, Douglas told Turley he was

not worried because he was with her on the night in question. When Turley refuted

his assertion, Douglas told her she did not need to say anything other than he was

with her all night or they would be lucky to find Turley's body. Jeanne Bratton,

Turley's sister, testified that subsequent to the murder, Turley told Bratton that

Douglas's clothes were bloody. The trial court found Bratton to have little

credibility.

The record also reveals an interoffice memorandum dated October 7, 1991, in

which an employee of victim assistance for the State Attorney's Office wrote to

Cox regarding the Bogle case:

Katie Alfonso called today stating (she is sister of Vic) she spoke with a

person named Andy, who was at bar with Bret[t] and a person named Guy,

anyway seems Andy is telling people 2 were involved, Brett and Guy left the

bar together.

At the evidentiary hearing, Cox had no recollection of what led her to believe that

“Andy” was involved in the murder. Katie Alfonso testified at the evidentiary

hearing that she did not recall speaking to “Andy,” and that no one with first-hand

knowledge told her two people were involved. Alfonso recalled a rumor circulating

which suggested more than one person was involved because the crime was “so

horrible.” She further testified that she could have related the rumor to the memo's

author. Bogle's trial counsel did not recall the memo.

We conclude that Bogle has demonstrated under Brady that the message from

Alfonso regarding “Andy” is favorable, exculpatory evidence that was suppressed

by the State. We observe that Bogle has not shown in postconviction any additional

evidence pertaining to “Andy.” As to Cox's handwritten note, Bogle's trial counsel

believed that Douglas murdered Torres, and the defense investigated Douglas.

The trial court found that the disclosure of Cox's handwritten note and the

memorandum relating a rumor of multiple persons involved in the murder do not

create a reasonable probability that the result of the proceeding would have been

different. We agree. We find that the evidence offered against Bogle at trial was

strong: Bogle threatened Torres's life if she called the police concerning Bogle's

breaking into Alfonso's house about 11 days before Torres's murder; Bogle repeated

his threat several days later; Bogle left Club 41 in clean clothes about five minutes

after Torres left on the night of the murder; Bogle was seen in dirty clothes with his

crotch wet approximately forty-five minutes later; and the DNA extracted from the

semen in Torres's vagina was consistent with Bogle's DNA. We conclude that the

note and memorandum, which were suppressed by the State, were not material

because there is not a reasonable probability that, had the note and memo been

disclosed to the defense, the result of the proceeding would have been different. In

other words, there is no probability sufficient to undermine our confidence in the

outcome. Accordingly, we deny this Brady claim as it relates to the note and

memorandum.

As an additional Brady claim, Bogle refers to another handwritten note which

references Bogle and provides for Gary Turley to be “brought over.” Cox and

Detective Larry Lingo both acknowledged at the evidentiary hearing that they wrote

parts of the note. Gary Turley, Marcia Turley's husband, testified at the evidentiary

hearing that he observed Douglas driving Torres away from Club 41 on the night

of the murder. Mr. Turley stated that he later saw Douglas's truck parked at the

Beverage Castle without any occupants. He also acknowledged a prior statement in

which he admitted that the truck he saw parked at the establishment might not have

belonged to Douglas. He also testified that after the murder, his wife told him about

Douglas's threatening her to provide him an alibi. The trial court found that Mr.

Turley—who is serving a life sentence, has thirty-three felony convictions, and

admitted to disliking Douglas—lacked credibility. We conclude that Bogle is not

entitled to relief on this Brady claim.

B. Grand Jury Testimony

Bogle asserts another Brady violation regarding the State's failure to disclose the

grand jury testimony to the defense. In denying this claim, the trial court found that

any impeachment value would have been minor. Because “there is no pretrial right

to inspect grand jury testimony,” a Brady violation has not been demonstrated.

Brookings v. State, 495 So. 2d 135, 137 (Fla. 1986).

C. Jeffrey Tapp

Bogle also claims a Brady violation based on the State's failure to disclose State

witness Jeffrey Trapp's criminal record and that Trapp admitted to violating his

probation without consequences from the State. At Bogle's trial, Trapp testified that

he was at the Red Gables Bar on the night of the murder, which his probation

forbade as a condition of community control. We find that no Brady violation has

been established because we agree with the trial court that Bogle has not shown that

Trapp's probation conditions were in effect on the night in question.

D. Agent Malone

Bogle also contends that the State violated Brady by failing to furnish F.B.I. Agent

Malone's bench notes to the defense. The trial court found that the notes were

insufficient to undermine confidence in the proceedings and were unlikely to

produce an acquittal on retrial because the notes have “minimal” value to the

defense. At trial, Malone, an expert in hair and fibers, testified that one Caucasian

pubic hair (Q–18) recovered from the debris of Bogle's pants was microscopically

indistinguishable from Torres's pubic hair (K–6). This finding was consistent with

Malone's report and confirmed by an examiner. Malone's bench notes, however,

stated that Q–18 equaled K–7, which referred to Torres's head hair sample. Malone

testified at the evidentiary hearing that this was a transcription error: his bench notes

should have said that Q–18 equaled K–6. We find that no Brady violation has been

demonstrated because Bogle has failed to establish that trial counsel attempted to

obtain and the State suppressed Malone's notes. See Peede v. State, 955 So. 2d 480,

497 (Fla. 2007) (finding no Brady violation where the defense could have obtained

the information in question with reasonable diligence).

E. Testimony Regarding Bogle's Pants in Evidence

Bogle asserts in his next Brady claim that the State suppressed the fact that Bogle's

pants were placed in a drying shed after Detective Lingo's collection of the pubic

hair and that Detective Lingo removed evidence from the evidence room to conduct

an investigation. Bogle relies on a Hillsborough County Sheriff's Office

disciplinary report stating that Ronald Cashwell, a Crime Scene Technician,

“placed damp clothing into Evidence without first ascertaining that the articles were

sufficiently dried.” A written request for discipline noted that Cashwell:

should have taken extreme caution to ensure that the pants were dry since

crucial evidence could have been obtained and used to assist in the

prosecution of the suspect. Instead, the pants could have become molded and

the evidence severely damaged or destroyed.

In detailing the events, Cashwell made a written statement that “[t]he items placed

in the shed are unable to be separate[d] from each other and could contaminate each

other and the shed was full of other evidence drying.”

At trial, F.B.I. Agent Malone was asked whether anyone else came “into contact

with the pants from the time that they were put into property until the time that you

took them out to collect this evidence.” Malone answered, “No, they were sealed

when I checked them out.” Malone was not asked whether anyone else came into

contact with the pants throughout the whole time they were in evidence. Thus, the

disciplinary report, which indicates that a Crime Scene Technician removed the

pants from the evidence room after Malone collected the hairs, is consistent with

Malone's trial testimony.

Bogle has not shown that the State suppressed evidence of contamination. The

disciplinary report and Cashwell's statement on which Bogle relies do not show that

any evidence was actually contaminated but convey that the evidence could have

been contaminated or destroyed. Malone testified at the evidentiary hearing that he

found no evidence of contamination on the hairs retrieved from Bogle's pants and

that the disciplinary report did not cause him to change his opinion of the match.

Even if Bogle met the first two prongs of Brady, showing favorable evidence and

suppression, the materiality prong has not been satisfied. Accordingly, we find that

Bogle has failed to establish a Brady violation.

Bogle additionally claims that prosecutor Cox violated Giglio because she knew

Detective Lingo's testimony about the pants was false and misleading. The trial

court denied this claim, finding the testimony unclear but not false. The trial court

reasoned that there was no evidence presented that anyone touched the pants

between the time they were sealed and placed in the evidence room until the pants

were examined by Detective Lingo. Because we agree that Detective Lingo did not

testify falsely, we deny this Giglio claim.

F. DNA Analysis

Bogle also claims that Dr. Harold Deadman's trial testimony that he conducted

restriction fragment length polymorphism (RFLP) DNA analysis in this case was

false, violating Giglio. We agree with the trial court's conclusion that Dr.

Deadman's testimony that he was “a supervisor” in the unit indicated that multiple

people were involved in the DNA analysis and was not false or misleading.

Therefore, we deny this Giglio claim.

Bogle also asserts a Brady claim because the defense did not receive a copy of the

FBI file concerning the RFLP DNA testing. Bogle maintains that the file could have

been used to challenge Dr. Deadman's credibility, the DNA analysis, and the

investigation. The trial court found the value of the impeachment evidence

disclosed in Dr. Deadman's file minimal and concluded that Bogle failed to

demonstrate that the result of the proceeding would have been different had Dr.

Deadman's file been disclosed. After carefully reviewing the record, we conclude

that even if the FBI file was suppressed and favorable to the defense, the materiality

prong under Brady has not been met. Therefore, we affirm the trial court's denial

of relief on this claim.

G. Bogle's Injuries

Bogle raises a final Giglio claim alleging that prosecutor Cox knowingly argued

falsely that the lacerations on Bogle's face could only be from the struggle with

Torres because Cox was aware of Bogle's car accident. We agree with the trial court

that the prosecutor argued reasonable inferences in light of the evidence presented.

We therefore deny relief on this Giglio claim.

Bogle, 213 So. 3d at 841-45 (footnotes omitted). The mandate issued May 1, 2017. Bogle v. State,

213 So. 3d 833 (Fla. 2017).

REASONS FOR DENYING THE WRIT

Petitioner Bogle’s conviction and resulting death sentence for the brutal murder of

Margaret Torres became final following certiorari review in 1995. Bogle v. State, 655 So. 2d 1103

(Fla.), cert denied, 516 U.S. 978 (1995). His conviction and resulting death sentence have

withstood more than twenty years of challenges since that time. Petitioner now seeks certiorari

review of the Florida Supreme Court’s decision denying postconviction relief. In the first issue,

Bogle argues that trial counsel failed to present exculpatory evidence to rebut the State’s evidence

during the guilt phase of his trial, resulting in prejudice; and, in the second issue, it is asserted that

the State committed Brady/Giglio violations by withholding evidence and presenting false

testimony.

Rule 10 of this Court’s rules states, “a petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or the misapplication of a properly stated

rule of law.” See also Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (Alito, J., concurring)

(citations omitted) (“error correction . . . is outside the mainstream of the Court’s functions and . .

. not among the ‘compelling reasons’ . . . that govern the grant of certiorari.”) “A petition for a

writ of certiorari will be granted only for compelling reasons.” Sup. Ct. R. 10. “[C]ertiorari

jurisdiction exists to clarify the law, its exercise ‘is not a matter of right, but of judicial discretion.’”

City and County of San Francisco, California v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (citations

ommitted). Indeed, this Court has long held, “[a] principal purpose for which we use our certiorari

jurisdiction . . . is to resolve conflicts among the United States courts of appeals and state courts

concerning the meaning of provisions of federal law.” Braxton v. United States, 500 U.S. 344, 347

(1991). Thus, in the absence of a conflict between decisions of this Court or other circuit courts,

certiorari review is not warranted. See Bunting v. Mellen, 541 U.S. 1019, 1021 (2004) (denying

certiorari review in the absence of a conflict).

There is no conflict among the state courts of last resort or the federal circuit courts on the

issues presented in the instant petition and no unsettled question of federal law. Although the

failure to meet the considerations in Rule 10 is not controlling, this Court has noted that cases

which have not divided the federal or state courts or presented important, unsettled questions of

federal law do not usually merit certiorari review. Rockford Life Insurance Co. v. Illinois

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is well settled that this Court does

not grant certiorari “to review evidence and discuss specific facts.” United States v. Johnston, 268

U.S. 220, 227 (1925); Texas v. Mead, 465 U.S. 1041 (1984). This Court is “consistent in not

granting the certiorari except in cases involving principles, the settlement of which is of importance

to the public as distinguished from that of the parties.” Rice v. Sioux City Memorial Park Cemetery,

Inc., 349 U.S. 70 (1955); see also Bartlett v. Stephenson, 535 U.S. 1301, 1304 (2002) (issues with

few, if any, ramifications beyond the presenting case do not satisfy any of the criteria for exercise

of certiorari jurisdiction).

While Bogle suggests conflict between the lower court and this Court, no conflict exists.

Moreover, Bogle’s claim amounts to little more than a dispute over the correctness of the state

court’s ruling. Here, the crux of Petitioner’s argument rests on his contention that the Florida

Supreme Court erred in its fact-based determinations, which goes to the very heart of Rule 10 and

what this Court stated in Tolan. To resolve Petitioner’s question, this Court would have to engage

in the very “error correction” analysis that this Court stated was against its principle function.

Nevertheless, Petitioner’s contention is without merit, and the Florida Supreme Court

correctly affirmed the denial of the motion for postconviction relief. Thus, Petitioner has failed to

demonstrate a compelling reason for this Court to exercise its certiorari jurisdiction in this case.

Accordingly, certiorari review should be denied.

THIS COURT SHOULD NOT GRANT CERTIORARI TO REVIEW THE

FLORIDA SUPREME COURT’S FACT-BASED DETERMINATIONS

THAT TRIAL COUNSEL WAS NOT INEFFECTIVE IN HIS

REPRESENTATION OF PETITIONER DURING THE GUILT PHASE OF

HIS TRIAL.

In an attempt to make fact-based determinations on routine ineffective assistance of

counsel claims attractive for this Court to review, Petitioner argues that the Florida Supreme Court

used the incorrect prejudice standard in its ineffective assistance analysis. Bogle cites this Court’s

decisions in Banks v. Dretke, 540 U.S. 668 (2004), and Kyles v. Whitley, 514 U.S. 419 (1995), to

assert that the Florida Supreme Court should have used a “cumulative error” analysis. This Court

should not be persuaded as neither Banks nor Kyles identify a cumulative error analysis as the

proper analysis for cases which have both ineffective assistance of counsel claims and Brady

claims. The only discussion in Banks of cumulative error was where this Court recounted the Fifth

Circuit’s opinion noting that the Magistrate addressed the issues cumulatively when they were

presented separately:

In addition, the Fifth Circuit observed, the Magistrate Judge had relied on the

cumulative effect of Brady error and the ineffectiveness of Banks's counsel at the

penalty phase. App. to Pet. for Cert. A44. Banks himself, however, had not urged

that position; he had argued Brady and ineffective assistance of counsel discretely,

not cumulatively.

Banks, 540 U.S. at 688-89. At no point did this Court state that the claims should have been merged

in argument or analysis. Even less persuasive than Banks is Kyles, which not only fails to proclaim

cumulative error as the correct standard when ineffective counsel claims are asserted in

conjunction with Brady claims, Kyles does not even address ineffective assistance of counsel

claims. Kyles explains that for Brady claims, the reviewing court should not look to the sufficiency

of the evidence to determine materiality; rather, the court should make the determination based on

whether “the favorable evidence could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. at 435. 1 Ineffective

assistance of counsel jurisprudence is well established, and there is no justification to look to Brady

“materiality” jurisprudence to elucidate what constitutes prejudice when determining trial

counsel’s effectiveness. Most importantly, before this Court can consider whether certiorari

jurisdiction should be exercised in this case, it must determine whether any jurisdiction exists. A

review of the relevant proceedings below reveals that this argument, in the context of ineffective

assistance of counsel claims, was not presented to the Florida Supreme Court, and therefore this

Court lacks jurisdiction to consider the question presented in the petition. This Court does not have

jurisdiction to review constitutional issues which were not fairly presented to and considered by

the lower court. Illinois v. Gates, 462 U.S. 213, 217-19 (1983); Webb v. Webb, 451 U.S. 493, 49697 (1981).

The prejudice analysis on Petitioner’s ineffective assistance of counsel claims is

determined by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Florida

Supreme Court correctly, and in compliance with current precedent from this Court, found that

Petitioner failed to demonstrate prejudice as required by Strickland. Petitioner now argues that his

claim should not be subjected to the Strickland prejudice analysis and prejudice should instead be

As discussed in the second issue, the Florida Supreme Court utilized the correct legal standard

for the Brady/Giglio claims.

based on cumulative error, even though a cumulative error argument concerning ineffective

assistance of counsel claims was not made to either the postconviction court or the Florida

Supreme Court. The type of alleged attorney ineffectiveness raised by Petitioner is very wellsettled and falls squarely under the parameters of Strickland. Strickland requires a defendant to

demonstrate both that his counsel was deficient and that he was prejudiced by the deficiency. Id.

at 687. In order to show that “counsel’s assistance was so defective as to require reversal of a

conviction,” a defendant must demonstrate “that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth Amendment.” Id. A

defendant must also “show that the deficient performance prejudiced the defense” by

demonstrating that the “errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id.

Here, the Florida Supreme Court applied Strickland to Petitioner’s claims and held that

Petitioner was not entitled to relief because he failed to show that trial counsel was deficient, and,

even if he had been deficient, Bogle failed to demonstrate prejudice. In the first sub-claim, the

Florida Supreme Court found that even if trial counsel was said to be deficient in failing to

investigate Bogle’s car accident, no prejudice could be shown: “Bogle had motive to kill Torres

and had threatened her life. Bogle's DNA was consistent with DNA found in the victim's vagina.

A pubic hair found near the crotch of Bogle's pants matched Torres. Bogle has not established that

counsel's showing his scratches were sustained in a car accident would have undermined

confidence in the outcome of his case.” Bogle, 213 So. 3d at 846. In the second sub-claim, the

Florida Supreme Court found that trial counsel had not been deficient for failing to present Everett

Smith's testimony relating to events on September 1, 1991 because “Smith's testimony would not

have undermined Bogle's motive to kill Torres”. Bogle, 213 So. 3d at 846. In the third sub-claim,

the Florida Supreme Court found that trial counsel had not been deficient for failing to present the

deposition of Roger Kelly because “the deposition could not legally be introduced as substantive

evidence.” Bogle, 213 So. 3d at 847. In the fourth sub-claim, the Florida Supreme Court found that

trial counsel had not been deficient for failing to demonstrate that the hair comparison in this case

was unreliable and flawed, failing to acquire Agent Michael Malone's bench notes, and failing to

retain an expert. The court’s analysis was as follows:

At trial, Malone concluded as follows:

In the debris reported as being from Mr. Bogle's pants, I was able to find one

Caucasian pubic hair which microscopically matched the pubic hairs of

Margaret Torres. In other words, it was microscopically indistinguishable

from her's [sic] and, therefore, I concluded this one pubic hair from the pants

was consistent with coming from Margaret Torres.

Malone acknowledged, on cross-examination, that the pubic hair was

naturally removed, that there was no way to determine how long the hair had

been removed, and that hair comparisons do not constitute a basis for absolute

personal identification.

At the evidentiary hearing, Bogle proffered the deposition of mitochondrial

DNA expert Dr. Terry Melton who criticized Malone for using potentially

misleading words and making conclusions without conducting DNA testing

on the sample. Dr. Melton did not state whether she would have been

available to testify at Bogle's trial, nor did she know whether, at that time,

labs were conducting mitochondrial DNA testing on hairs for criminal

defense attorneys. The evidentiary hearing also revealed that studies relating

to mitochondrial DNA and the proficiency of hair microscopic analysis were

unavailable at that time. The trial court did not give Dr. Melton's testimony

great weight.

Steven Robertson, an expert in the field of hair analysis and comparison,

concluded at the evidentiary hearing that Malone's trial testimony matching

Torres's pubic hair and the hair from Bogle's pants was not inconsistent with

his lab report, but was inconsistent with Malone's bench notes. Robertson

determined that Malone testified “fairly” and within the bounds of his

expertise. We conclude that Bogle has not demonstrated that the defense's

failure to obtain Malone's bench notes was outside the broad range of

reasonably competent performance under prevailing professional standards

at the time of trial. See Long v. State, 118 So. 3d 798 (Fla. 2013). In addition,

Bogle failed to present evidence that a mitochondrial DNA expert, such as

Dr. Melton, or a microscopic hair analysis expert, would have been available

to testify at trial, or in the preparation thereof. Accordingly, we deny relief

on this claim.

Bogle, 213 So. 3d at 847. In the fifth sub-claim, Bogle claims that trial counsel was ineffective for

failing to request a Frye 2 hearing to challenge the DNA evidence and show that the F.B.I. did not

follow accepted testing procedures. The court’s analysis was as follows:

A Frye hearing determines whether an expert's scientific opinion is admissible.

Zack v. State, 911 So. 2d 1190, 1197 (Fla. 2005). To be admissible, an expert

opinion must be based on techniques that have been generally accepted by the

relevant scientific community and found to be reliable. Id. (citing Frye, 293 F. at

1014). However, Frye is only utilized where the science at issue is new or novel.

Id. at 1198. In denying this claim, the trial court determined that Bogle failed to

show that the RFLP DNA evidence would have been inadmissible at trial had

counsel requested a Frye hearing.