Bogle v. State

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

          An Appeal from the Circuit Court in and for Hillsborough County, Michelle Sisco, Judge - Case No. 291991CF012952000AHC

          Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant

          Ashley Moody, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida, for Appellee

          PER CURIAM.

         Brett A. Bogle, a prisoner under sentence of death, appeals the circuit court's order summarily denying his successive motion for postconviction relief.^[1] For the reasons that follow, we affirm the order.

         FACTS

         In 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.^[2] 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).

         There 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.

         In 2014, Bogle filed a successive postconviction motion claiming he had newly discovered evidence of Brady^[3] and Giglio^[4] 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 appeal followed.

         ANALYSIS

         Summary 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.

         Brady, Giglio, and Newly Discovered Evidence Claims

         Bogle's 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 ...