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Dailey v. State

Supreme Court of Florida

October 3, 2019


          An Appeal from the Circuit Court in and for Pinellas County, Frank Quesada, Judge - Case No. 521985CF007084XXXXNO.

          Eric Pinkard, Capital Collateral Regional Counsel, and Chelsea Rae Shirley, Julissa R. Fontán, and Kara Ottervanger, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida; Seth Miller, Innocence Project of Florida, Inc., Tallahassee, Florida; Laura Fernandez, New Haven, Connecticut; and Cyd Oppenheimer, New Haven, Connecticut, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee.

          Elliot H. Scherker of Greenberg Traurig, P.A., Miami, Florida, and Karen M. Gottlieb, Florida Center for Capital Representation, Florida International University College of Law, Miami, Florida, for Amicus Curiae Right Reverend Neil Lebhar, Bishop of the Gulf Atlantic Diocese of the Anglican Church in North America.

         Craig Trocino, Director, Miami Law Innocence Clinic, University of Miami School of Law, Coral Gables, Florida, and Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida, for Amicus Curiae the Innocence Network.

          PER CURIAM.

         James Milton Dailey, a prisoner under sentence of death, appeals the circuit court's order denying his second successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm.

         I. BACKGROUND

         Dailey was convicted of and sentenced to death for the murder of Shelley Boggio. We have described the facts of the crime as follows:

Shelley Boggio's nude body was found floating in the water near Indian Rocks Beach in Pinellas County, Florida. She had been stabbed repeatedly, strangled, and drowned. On the day of the murder, Shelley, her twin sister Stacey, and Stephanie Forsythe had been hitchhiking along a road near St. Petersburg, Florida. They were picked up by Dailey, Jack Pearcy, and Dwayne "Oza" Shaw. The three men drove the girls to a local bar. Stacey and Stephanie returned home shortly thereafter, but Shelley remained with the group and returned to Jack Pearcy's house. Dailey was living in Pearcy's home, where he had his own bedroom. Pearcy and his girlfriend, Gayle Bailey, shared a second bedroom. Shaw, a friend of Pearcy's from Kansas, was temporarily staying at Pearcy's house while he resolved marital issues. He slept on a couch in the living room.
Shaw testified that on the night of the murder he drove with Pearcy and Boggio to a public telephone booth, where he was dropped off. Pearcy and Boggio then drove off alone. After speaking on the phone for several minutes, Shaw returned to the house on foot and fell asleep on the couch. Shaw testified that when he woke up later that night, he saw Pearcy and Dailey, but not Boggio, entering the house together. Shaw noticed that Dailey's pants were wet.
The State presented testimony from the lead detective in the case, John Halladay, and three informants who were inmates at the same facility where Dailey was held while awaiting trial. One of the inmates, Paul Skalnik, testified that Dailey had struck a deal with Pearcy, who had also been charged with Boggio's murder. Skalnik testified that he relayed messages between Dailey and Pearcy. According to Skalnik, Dailey promised that if Pearcy did not testify at Dailey's trial, Dailey would attempt to exonerate Pearcy once he was acquitted.
Based on the testimony of Shaw, Skalnik, and several other witnesses, Dailey was found guilty of first-degree murder and was sentenced to death.

Dailey v. State, 965 So.2d 38, 41-42 (Fla. 2007) (footnote omitted). On direct appeal, we upheld the conviction but reversed the sentence. Dailey v. State, 594 So.2d 254, 259 (Fla. 1991). The trial court again sentenced Dailey to death on remand. Dailey v. State, 659 So.2d 246, 247 (Fla. 1995). We affirmed, id. at 248, and the Supreme Court denied Dailey's petition for a writ of certiorari, Dailey v. Florida, 516 U.S. 1095 (1996). Thereafter, we affirmed the denial of Dailey's initial postconviction motion and denied his petition for a writ of habeas corpus. Dailey, 965 So.2d at 41. We also affirmed the denial of his first successive postconviction motion. Dailey v. State, 247 So.3d 390, 391 (Fla. 2018).

         On June 21, 2017, Dailey filed a second successive postconviction motion, raising three claims. He asserted that: (1) newly discovered evidence requires that his conviction be overturned; (2) the State committed Brady[1] and Giglio[2]violations; and (3) his death sentence is unconstitutional because he is innocent. Following a case management conference, the circuit court granted an evidentiary hearing on two newly discovered evidence claims. Dailey subsequently requested that the court take judicial notice of certain documents; his request was denied.

         After the evidentiary hearing, the circuit court issued a final order rejecting all claims. Dailey now appeals the circuit court's order and its denial of his request for judicial notice.

         II. ANALYSIS

         A. Newly Discovered Evidence

         In his first claim, Dailey argues that newly discovered evidence exists in the form of: (1) an affidavit from Jack Pearcy, his codefendant; (2) testimony from Mike Sorrentino, James Wright, and Travis Smith, former inmates who were housed at the same jail as Dailey; (3) documents indicating that Paul Skalnik, an inmate who testified on behalf of the State at trial, is not a credible witness; and (4) an Indian Rocks Beach Police report.

         In order to set aside a conviction based on newly discovered evidence, two requirements must be satisfied. First, the evidence "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence." Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (alteration in original) (quoting Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla. 1994)). Second, the "evidence must be of such nature that it would probably produce an acquittal on retrial." Id. However, regardless of whether the "evidence meets the threshold requirement by ...

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