BRETT A. BOGLE, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Hillsborough County,
Michelle Sisco, Judge - Case No. 291991CF012952000AHC
McDermott of McClain & McDermott, P.A., Estero, Florida,
Moody, Attorney General, Tallahassee, Florida, and Timothy A.
Freeland, Senior Assistant Attorney General, Tampa, Florida,
A. Bogle, a prisoner under sentence of death, appeals the
circuit court's order summarily denying his successive
motion for postconviction relief. For the reasons that follow,
we affirm the order.
1992, Bogle was convicted of the first-degree murder of
Margaret Torres, burglary with assault or battery, and
retaliation against a witness. Bogle v. State
(Bogle I), 655 So.2d 1103, 1104-05 (Fla. 1995). At
an initial penalty phase, the jury recommended death by a
seven-to-five vote, but the trial court granted a new penalty
phase due to an erroneous admission of evidence. Id.
at 1105. The trial judge sentenced Bogle to death after the
second penalty phase resulted in a jury recommendation of
death by a ten-to-two vote. Id. This Court affirmed
Bogle's conviction and sentence on direct appeal,
id. at 1110, and Bogle's death sentence became
final in 1995. This Court also affirmed the denial of
Bogle's initial postconviction motion and denied habeas
relief. Bogle v. State (Bogle II), 213
So.3d 833, 855 (Fla. 2017).
were no eyewitnesses to Bogle's murder of Torres. Torres
was the sister of a woman with whom Bogle had lived, and
Bogle and Torres did not get along. Bogle I, 655
So.2d at 1105. On the night of the murder, Bogle and Torres
had been at a bar; Bogle left shortly after Torres. The next
day, Torres's "nude and badly beaten body" was
found outside the bar. Id. Her head had been
"crushed with a piece of cement." Id.
"Additionally, she had semen in her vagina and trauma to
her anus consistent with sexual activity that was likely
inflicted before death." Id. One of the
state's witnesses at trial was Agent Michael Malone, an
FBI lab examiner. Malone testified that a pubic hair found on
Bogle's pants after the murder "microscopically
matched the pubic hairs of Margaret Torres." Bogle
II, 213 So.3d at 847. On cross-examination, Malone
acknowledged that "hair comparisons do not constitute a
basis for absolute personal identification."
Id. Unrelated to Malone's testimony, expert
witnesses testified at trial and at the evidentiary hearing
on Bogle's first postconviction motion that Bogle's
DNA was consistent with DNA found in Torres's body and
underwear. Id. at 838, 846, 851.
2014, Bogle filed a successive postconviction motion claiming
he had newly discovered evidence of
Brady and Giglio violations
related to Agent Malone's hair analysis testimony.
Specifically, Bogle cited the results of a 2013 federal
government review concluding that Malone's testimony in
Bogle's case overstated the reliability of microscopic
hair comparisons. The successive postconviction motion also
alleged that Bogle was entitled to relief under Hurst v.
State, 202 So.3d 40 (Fla. 2016), and under changes to
Florida's capital sentencing statute enacted after
Hurst. In September 2017, the circuit court entered
an order summarily denying Bogle's second amended
successive postconviction motion, finding that the newly
discovered evidence claim was procedurally barred and that
Bogle's Hurst-related claims lacked merit. This
denial of a successive postconviction motion is appropriate
"[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). Applying a de
novo standard of review, we find that test satisfied here,
and we therefore affirm the circuit court's summary
denial of Bogle's motion.
Giglio, and Newly Discovered Evidence Claims
successive postconviction motion alleges that the state
withheld exculpatory evidence about the asserted
unreliability of Malone's testimony (in violation of
Brady) and knowingly presented Malone's
"false" testimony (in violation of
Giglio). The trial court ...