SC05-1847 – Rickey Roberts, A/K/A Less McCullars v. State of Florida

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SC05-1847 – Rickey Roberts, A/K/A Less McCullars v. State of Florida - Revised Opinion Released 09/25/2008

State: Florida

Court: Supreme Court

Docket No: sc05-1847

Case Date: 05/29/2008

Plaintiff: SC05-1847 – Rickey Roberts A/K/A Less Mccullars

Defendant: State Of Florida – Revised Opinion

Preview:Supreme Court of Florida
No. SC05-1847
RICKEY ROBERTS, a/k/a LESS McCULLARS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 29, 2008]
REVISED OPINION
PER CURIAM.
Rickey Roberts appeals a trial court order denying his second motion for
postconviction relief following an evidentiary hearing.1   The issue is whether the
trial court erred in denying Roberts’ claim that the State’s failure to disclose
favorable information to the defense requires reversal of his conviction.  For the
reasons that follow, we affirm the trial court’s order.
1.   We previously affirmed the trial court’s order vacating Roberts’ death
sentence and granting a new sentencing proceeding, see Roberts v. State, 840 So.
2d 962, 967 (Fla. 2002), but remanded to afford Roberts an opportunity to compel
the testimony of Rhonda Haines, a State witness who recanted her trial testimony
by affidavit.  We have jurisdiction.   See art. V, § 3(b)(1), Fla. Const.

FACTS AND PROCEDURAL HISTORY
In 1985, Roberts was convicted of the first-degree murder of George
Napoles and the armed sexual battery and armed kidnapping of Michelle Rimondi.
The relevant facts were summarized by this Court on direct appeal.  See Roberts v.
State, 510 So. 2d 885, 887 (Fla. 1987).  The lengthy procedural history was
summarized in our most recent decision in this case.  See Roberts v. State, 840 So.
2d 962, 965-68 (Fla. 2002).
Suffice it to say that State witness Rhonda Haines, who was Roberts’
girlfriend at the time of the killing, originally testified at Roberts’ trial that he
confessed to her that he committed the murder.  See Roberts v. State, 678 So. 2d
1232, 1235 (Fla. 1996).  Years later, in 1996, a defense investigator located and
interviewed Haines in California concerning Roberts’ postconviction proceedings.
Following the interview, Haines signed an affidavit recanting her trial testimony.
In her affidavit, Haines claimed that the State pressured her into her trial testimony
and promised to help her with pending prostitution charges in exchange for her
testimony.  See id.
Roberts appended Haines’ affidavit to his second postconviction motion,
arguing that Haines’ recantation constituted newly discovered evidence that
established he was erroneously convicted.  The trial court summarily denied
Roberts’ claim.   On appeal, we vacated the trial court’s summary denial of
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Roberts’ motion and remanded for an evidentiary hearing.  Id.  However, on
remand, the trial court again denied Roberts’ motion after it refused to issue a
certificate of materiality so that Roberts could obtain an out-of-state subpoena
requiring Haines to appear as a witness at the evidentiary hearing.   See Roberts,
840 So. 2d at 970.  On appeal after remand, we again remanded for an evidentiary
hearing, stating that “on remand, Roberts must be afforded an opportunity to
compel Haines’ testimony at the evidentiary hearing so that the court can hear from
her directly about the recantation and the circumstances surrounding her original
trial testimony.”  See id. at 972.  We further directed that “if the trial court
determines on remand that Haines’ testimony is credible,” it must conduct a
cumulative analysis, considering the effect of the newly discovered evidence
revealed in Haines’ recantation along with the alleged Brady2 violations raised in
Roberts’ first postconviction motion.  See 840 So. 2d at 970 (emphasis added).
Pursuant to this Court’s 2002 remand, the trial court conducted an
evidentiary hearing during which Rhonda Haines (now Rhonda Williams) testified
via satellite from California.  The court also heard the testimony of former
prosecutor Sam Rabin, defense investigator Jeff Walsh, and others.  Following the
hearing, the parties submitted written closing arguments/post-hearing memoranda.
Roberts raised two new issues in his post-hearing memorandum:   (1) the State
2.   Brady v. Maryland, 373 U.S. 83 (1963).
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failed to disclose two of Haines’ prostitution arrests and her alias, Shannon
Harvey; and (2) the State failed to disclose information that State witness Michelle
Rimondi made telephone calls to Sam Rabin demanding money and that Rabin
threatened to take action against her if she failed to maintain contact with the State
or her father regarding Roberts’ trial.
On September 2, 2005, the trial court entered a thorough and well-reasoned
order denying Roberts’ second postconviction motion.  The trial court determined
that Rhonda Haines’ testimony was not credible and, therefore, concluded that a
cumulative analysis of Roberts’ Brady claims was not necessary.  The trial court
also addressed and denied relief as to the two Brady claims Roberts raised in his
post-hearing memorandum.   These Brady claims are the focus of Roberts’ present
appeal.3
DISCUSSION
In this appeal, Roberts does not quarrel with the trial court’s determination
that Rhonda Haines’ testimony at the evidentiary hearing was not credible.  Rather,
he argues that he is entitled to a new trial under Brady because the State failed to
disclose Haines’ alias and two prostitution arrests, Michelle Rimondi’s requests for
money, and Sam Rabin’s supposed threat to take action against Rimondi if she did
3.   The trial court also rejected Roberts’ claim that the State presented false
or misleading evidence at trial in violation of Giglio v. United States, 405 U.S.
150, 154 (1972).  Roberts does not raise this claim on appeal.
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not keep in touch with the State or her father regarding Roberts’ trial.  Roberts also
claims that the trial court erred in refusing to consider this previously undisclosed
evidence in a cumulative analysis with the Brady claims raised in his first
postconviction motion.  We disagree and affirm the trial court’s denial of Roberts’
second postconviction motion.
Although not challenged by Roberts, we note at the outset that the trial court
found Haines’ testimony at the evidentiary hearing not credible.  As the trial court
explained:
After evaluating the demeanor and credibility of Rhonda
Haines, albeit by satellite, along with examining all of the
circumstances in this case, the Court is left with the inescapable
conclusion that Haines’ affidavit was primed by Roberts’ investigator
and her testimony offered at the evidentiary hearing was neither
credible nor reliable.  Moreover, the Court finds that Sam Rabin was
irrefutably a more credible witness.  He contradicted Haines’
testimony.
Furthermore, the Court finds that the many different and
inconsistent statements that Haines provided in this case, including
her testimony at the evidentiary hearing, illustrate why her recanted
testimony is unreliable and not worthy of belief.  As to her affidavit
that was prepared by Mr. Walsh, the Court can not accept Haines’
(Williams’) recantation, purportedly attested to under oath, when the
Court lacks confidence in Haines’ ability to appreciate or recognize
the meaning of an oath to tell the truth.  Additionally, Haines’
recantation, a decade after Roberts’ conviction and sentences, is
further clouded by her strong suspicion that Roberts is the father of
her son who was born shortly after the trial.  Thus, her recanted
testimony provides a strong motive for her to lie in order to help
Roberts.  Therefore, the Court concludes that Roberts has failed to
establish that confidence in the outcome of the guilt phase of his trial
has been undermined, and that he has been denied a fair trial.
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As to Roberts’ assertion that this Court must apply the
cumulative analysis of newly discovered evidence to a number of
alleged Brady violations asserted by Roberts, the Court finds that the
Brady claims raised in Roberts’ first post conviction motion need not
be considered in a cumulative analysis since Haines’ recanted
testimony has been deemed not credible by this Court.
The trial court’s credibility determination is supported by competent, substantial
evidence in the record.  We affirm that finding.   See Melendez v. State, 718 So. 2d
746, 747-48 (Fla. 1998); Blanco v. State, 702 So. 2d 1250, 1251 (Fla. 1997) (“As
long as the trial court’s findings are supported by competent substantial evidence,
‘this 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.’ ” (quoting Demps v. State, 462 So. 2d 1074, 1075
(Fla. 1984)).
We also affirm the trial court’s denial of Roberts’ Brady claims based on
Haines’ alias and Dade County prostitution arrests and Rimondi’s interaction with
Rabin.  In rejecting these claims, the trial court reasoned:
It is well settled that the prosecution must disclose evidence
favorable to the accused if evidence is material to guilt or punishment.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215
(1963).   To establish such a claim, the defendant must show:   (1) that
the State possessed evidence favorable to the defendant; (2) that the
defendant did not possess the evidence, nor could he obtain it with
any reasonable diligence; (3) that the prosecution suppressed the
evidence; and (4) that had the evidence been disclosed, a reasonable
probability exists that the outcome of the proceedings would have
been different.   Mills v. State, 684 So. 2d 801 (Fla. 1996); Scott v.
State, 657 So. 2d 1129 (Fla. 1995); Hildwin v. Dugger, 654 So. 2d
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107 (Fla. 1995); Mendyl v. Dugger, 592 So. 2d 1076 (Fla. 1992);
Routly v. State, 590 So. 2d 397 (Fla. 1991); Lightbourne v. State, 644
So. 2d 54 (Fla. 1994).  The Supreme Court defined “reasonable
probability” in White v. State, 664 So. 2d 242, 244 (Fla. 1995) as a
“probability sufficient to undermine confidence in the outcome.”
Applying these principles, the court finds no Brady violation.
Thus, the Court does not find that there is a reasonable probability that
had the foregoing evidence been disclosed to the defense, the result of
the proceeding would have been different.  Kyles v. Whitley, 131
L.Ed. 2d 490, 115 S.Ct. 1555 (1995); United States v. Bagley, 473
U.S. 667, 87 L.Ed. 2d 481, 105 S.Ct. 3375 (1985).  Even assuming
that the State had in its possession information as to Haines’
prostitution arrests under the name of Shannon Harvey as well as the
disposition of a February 22, 1984 prostitution arrest, the trial record
shows that Roberts vigorously assailed Haines’ character and arrest
record . . .
Moreover, the Court finds that trial counsel should and could
have obtained Haines’ alleged alias, Shannon Harvey, by merely
asking during her deposition whether she ever used an alias or by
moving to compel the State to produce all aliases of its witnesses
since it is commonly known by law enforcement officers, prosecutors
and defense attorneys that prostitutes generally use aliases.  Based on
the foregoing, the Court does not find that this evidence would have
impeached the testimony of Haines nor would it have resulted in a
markedly weaker case for the prosecution and a markedly stronger
one for Roberts.
Similarly, as to Roberts’ claim that the State failed to disclose
Michelle Rimondi’s request for money and its supposed threat to take
action against her if she did not stay in contact with the State or her
father, the Court finds that Roberts has not shown that Rimondi
received any money or other benefit in exchange for her testimony.
Sam Rabin testified that Rimondi received no money or other benefit
for her testimony since she was an eyewitness and victim.   He further
explained that the State Attorney’s office had a policy that directly
prohibited prosecutors from engaging in doling out money or other
benefits that would compromise either Rimondi’s testimony or that of
any potential witness in the prosecution of criminal cases.  Thus, the
evidence—a message note from Rimondi requesting money and a
letter addressed to Rimondi’s father advising him that his daughter
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must stay in contact with him or the State—is totally speculative at
best and does not support the existence of a Brady violation.
Again, we affirm the trial court’s conclusion that Roberts has failed to demonstrate
a Brady violation as to these claims.
Finally, the trial court properly declined to conduct a cumulative analysis of
Haines’ recantation together with Roberts’ Brady claims.  As we stated in our 2002
opinion, the need for a cumulative analysis was contingent upon the trial court’s
finding Haines credible.  See Roberts, 840 So. 2d at 972.  Because the trial court
did not find Haines’ testimony credible, it was not required to conduct a
cumulative analysis.   Further, because the Brady claims raised in Roberts’ post-
hearing memoranda are individually meritless, the trial court properly declined to
consider them in a cumulative analysis.   See Roberts, 840 So. 2d at 972 (“[C]laims
of cumulative error are properly denied where individual claims have been found
without merit.”).
CONCLUSION
Based on the foregoing, we affirm the trial court’s denial of Roberts’ second
motion for postconviction relief.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and
BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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An Appeal from the Circuit Court in and for Dade County
Jerald Bagley, Judge - Case No. 84-13010
Neal A. Dupree, Capital Collateral Regional Counsel, Fort Lauderdale, Florida,
and Martin J. McClain, Special Assistant CCR Counsel, Southern Region, Wilton
Manors, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee
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