SC06-761 – Mark Allen Geralds v. State of Florida

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SC06-761 – Mark Allen Geralds v. State of Florida – Revised Opinion

State: Florida

Court: Supreme Court

Docket No: sc06-761

Case Date: 02/02/2012

Plaintiff: SC06-761 – Mark Allen Geralds

Defendant: State of Florida – Revised Opinion

Preview:Supreme Court of Florida
No. SC06-761
MARK ALLEN GERALDS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC07-716
MARK ALLEN GERALDS,
Petitioner,
vs.
WALTER A. MCNEIL, etc.,
Respondent.
[September 16, 2010]
REVISED OPINION
PER CURIAM.
Mark Allen Geralds appeals an order of the circuit court denying his motion
to vacate his conviction of first-degree murder and sentence of death filed under

Florida Rule of Criminal Procedure 3.851.   He also petitions this Court for a writ
of habeas corpus.   We have jurisdiction.   See art. V, § 3(b)(1), (9), Fla. Const.   For
the reasons explained below, we affirm the circuit court‘s decision denying relief
and deny the petition for writ of habeas corpus.
I. PROCEEDINGS TO DATE
Geralds was convicted and sentenced to death in February 1990 for the first-
degree murder of Tressa Lynn Pettibone.   Geralds v. State (Geralds I), 601 So. 2d
1157, 1158 (Fla. 1992).   On appeal, we affirmed Geralds‘ conviction but, due to
trial court errors, remanded for resentencing and a new penalty phase hearing.   Id.1
After the new penalty phase hearing, the jury unanimously recommended death.
Geralds v. State (Geralds II), 674 So. 2d 96, 98 (Fla. 1996).   At sentencing, the trial
court found three aggravating factors:   (1) the murder was committed during the
commission of a robbery or burglary or both;2 (2) the murder was especially
heinous, atrocious, or cruel (HAC);3 and (3) the murder was committed in a cold,
calculated, and premeditated (CCP) manner without any pretense of moral or legal
justification.4   The court found the statutory mitigator of age5 but afforded it little
1.   The facts surrounding the murder are detailed in our original opinion.
See Geralds I, 601 So. 2d at 1158-59.
2.                                                                                          § 921.141(5)(d), Fla. Stat. (1993).
3.   Id. § 921.141(5)(h).
4.   Id. § 921.141(5)(i).
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weight.   The defendant was twenty-two years old at the time of the offense.   As for
nonstatutory mitigation, the trial court found the following but gave them ―very
little weight‖:                                                                          (1) the defendant‘s love and concern for his daughter and former
wife; (2) the defendant came from a divorced family and was unloved by his
mother; and (3) the defendant‘s antisocial behavior and bipolar manic personality.
The trial court determined that the aggravating factors outweighed the mitigating
factors and sentenced Geralds to death.   On appeal, Geralds raised ten claims.6
This Court found the application of the CCP aggravating factor was error, but
concluded that the error was harmless.   Accordingly, we affirmed the death
sentence.   Id. at 103-04.   The United States Supreme Court subsequently denied
Geralds‘ petition for writ of certiorari.   See Geralds v. Florida, 519 U.S. 891
(1996).
In September 1997, Geralds filed his original postconviction motion.   In
January 2002, Geralds amended his motion, raising twenty-six claims.7   In
5.   Id. § 921.141(6)(g).
6.   We outlined Geralds‘ claims in Geralds II, 674 So. 2d at 98 n.6.
7.   Geralds argued: (1) section 119.19 of the Florida Statutes and Florida
Rule of Criminal Procedure 3.852 are unconstitutional and that he had been denied
access to public records; (2) the jury qualification procedure violated constitutional
and state statutory provisions; (3) pretrial publicity prevented him from receiving a
fair trial or a fair resentencing; (4) he was denied due process and equal protection
due to ineffective assistance of counsel (IAC) during the guilt phase, the State‘s
failure to disclose exculpatory evidence, and improper and prejudicial
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February 2003, after a Huff8 hearing, the circuit court summarily denied claims 1,
3, 4 (in part), 5, 7, 8 (in part), 9, 10, 11 (in part), 12 (in part), and 13-26.   An
evidentiary hearing was granted on claims 2, 4 (in part), 6, 8 (in part), 11 (in part)
and 12 (in part).   Geralds filed a supplement to his postconviction motion in July
prosecutorial and judicial misconduct; (5) counsel had a conflict of interest; (6) the
State withheld material and exculpatory evidence or presented misleading
evidence; (7) improper prosecutorial comments were made and counsel was
ineffective for not objecting; (8) newly discovered evidence; (9) Florida‘s capital
sentencing scheme is unconstitutional; (10) Florida‘s capital sentencing scheme
violates Apprendi v. New Jersey, 530 U.S. 466 (2000); (11) several IAC claims
regarding penalty phase representation; (12) IAC at the guilt and penalty phases
because counsel failed to obtain an adequate mental health evaluation; (13) the trial
court erred in allowing the State to present hearsay testimony at the resentencing,
and counsel was ineffective for not objecting; (14) the CCP aggravating factor and
instructions were unconstitutionally vague; (15) the trial court erred in instructing
the jury on the HAC aggravator, and counsel was ineffective for not objecting; (16)
the murder in the course of a felony aggravator is unconstitutional as an automatic
aggravating circumstance, and counsel was ineffective for not objecting ; (17) the
State improperly introduced and argued nonstatutory aggravators, and counsel was
ineffective for not objecting; (18) the jury was given incorrect penalty phase
instructions, and counsel was ineffective for not objecting; (19) the jury was misled
by instructions, and counsel was ineffective for not objecting; (20) Geralds is
innocent of first-degree murder; (21) the Florida Supreme Court erred by not
remanding for resentencing after striking the CCP aggravator; (22) Geralds was
denied a proper appellate review because there were omissions in the record, and
counsel was ineffective for not objecting; (23) there was error in the instruction on
flight, and counsel was ineffective for not objecting; (24) cumulative error
deprived Geralds of a fair trial; (25) Florida Rule of Professional Conduct 4-
3.5(d)(4) unconstitutionally prohibited him from interviewing jurors; and (26)
lethal injection is unconstitutional.
8.   Huff v. State, 622 So. 2d 982 (Fla. 1993).
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2004, and a second supplement in July 2005.9   Both supplements were summarily
denied.   In January 2006, after evidentiary hearings, the circuit court filed a final
order denying Geralds‘ postconviction motion.   This appeal follows.
II. POSTCONVICTION APPEAL
Geralds challenges the circuit court‘s denial of his postconviction motion on
several bases.   He argues that the circuit court erroneously denied his claims
regarding:   (A) Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), violations; (B) ineffective assistance of counsel during
the guilt and penalty phases; (C) newly discovered evidence of a conflict of
interest; (D) some summarily denied claims; (E) a motion to depose a suspect; (F)
access to files and records; and (G) the constitutionality of execution by lethal
injection.   We address each argument in turn below.
A. BRADY/GIGLIO CLAIMS
Geralds argues that the circuit court erred in denying his claim that the State
violated Brady when it failed to disclose various reports and information, and
Giglio when it presented false and misleading testimony.   The State argues that the
circuit court correctly held that in every instance Geralds either did not establish
that the State failed to disclose the evidence or, assuming that the evidence had not
been disclosed, Geralds did not establish that he had been prejudiced.
9.   The supplements did not add any new claims.
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Geralds raises seven Brady claims, which will be addressed first.   Geralds
also raises five Giglio claims, which will be addressed second.
1. Brady Claims
Claims that the State withheld evidence from the defense are governed by
Brady.   Under Brady, the State must disclose material information within its
possession or control that is favorable to the defense.   Mordenti v. State, 894 So.
2d 161, 168 (Fla. 2004).   To establish 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.   Strickler v. Greene, 527
U.S. 263, 281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000).
To meet the materiality prong, the defendant must demonstrate a reasonable
probability that had the suppressed evidence been disclosed the jury would have
reached a different verdict.   Strickler, 527 U.S. at 289.   A reasonable probability is
a probability sufficient to undermine confidence in the outcome.   Way, 760 So.2d
at 913; see also Strickler, 527 U.S. at 290.   The determination of whether a Brady
violation has occurred is subject to independent appellate review.   Davis v. State,
928 So. 2d 1089, 1113 (Fla. 2005).   Giving deference to the circuit court on
questions of fact, this Court reviews de novo the application of the law and
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independently reviews the cumulative effect of suppressed evidence.   See
Mordenti, 894 So. 2d at 169; Way, 760 So. 2d at 913.
a. First Brady Claim
As Geralds‘ first Brady claim, he argues that the State suppressed a two-
page handwritten list with descriptions of jewelry that were missing from the
victim‘s home.10   Geralds argues that this list makes clear that the herringbone
necklace described in the list was not the necklace that was recovered from a pawn
shop.11   The circuit court denied this claim, holding that Geralds failed to establish
that the list was not contained in the State‘s supplemental response to demand for
discovery, which references 543 pages of investigative material being provided to
Geralds on June 1, 1989.   We agree.
At the evidentiary hearing, Joe Grammer testified that he was one of the
assistant state attorneys involved in Geralds‘ murder prosecution and was
responsible for providing discovery.   Grammer testified that on June 1, 1989, the
10.   At the evidentiary hearing, Geralds introduced a handwritten list that
describes a ―Herringbone necklace thick gold [and] comes down into a V shape but
doesn‘t lay flat.‖   The list also describes several other pieces of jewelry, including
necklaces, bracelets, watches, and one pair of Bucci sunglasses.   The list is marked
―Received 02-15-89‖ across the top.
11.   Evidence linking Geralds to the crime included a gold herringbone chain
necklace, which Geralds pawned. Serology testing of the necklace revealed a stain
that was compatible with the victim‘s blood type and inconsistent with Geralds‘
blood type.   Geralds I, 601 So. 2d at 1158.
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State filed a supplemental response to demand for discovery containing
approximately 543 pages of investigative material.   Grammer further testified that
he found a copy of the two-page handwritten list in the State‘s supplemental
response.   Geralds does not identify any portion of the record that contradicts
Grammer‘s testimony.   Thus, the record indicates that Geralds had possession of
this list.                                                                                ―[A] Brady claim cannot stand if a defendant knew of the evidence
allegedly withheld or had possession of it, simply because the evidence cannot then
be found to have been withheld from the defendant.‖   Occhicone v. State, 768 So.
2d 1037, 1042 (Fla. 2000).   Accordingly, we hold that Geralds has failed to
establish that the circuit court erred in denying this Brady claim.
b. Second Brady Claim
As Geralds‘ second Brady claim, he argues that the State suppressed an
eight-page report, dated April 3, 1989, written by Shirley Zeigler, a crime
laboratory analyst for the Florida Department of Law Enforcement (FDLE).12
Geralds argues that this report is exculpatory for two reasons:   (1) Zeigler‘s test
results indicated that the blood on a handkerchief discovered at the crime scene did
12.   At the evidentiary hearing, Geralds introduced Zeigler‘s report, which
totals eight pages and analyzed six lab submittals.   Each lab submittal contained
several different items for analysis.   Zeigler found that a handkerchief listed within
lab submittal 03 demonstrated the presence of human blood staining.   Zeigler
concluded that the handkerchief was stained with blood type O, while Geralds and
the victim both have blood type A.   Zeigler tested the sneakers, which were listed
within lab submittal 06, for blood staining and found none.
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not belong to Geralds or the victim, thus strengthening Geralds‘ defense that
someone else committed the crime; and (2) Zeigler‘s test results indicated that
there was no blood on Geralds‘ sneakers, which contradicts crime scene analyst
Laura Rousseau‘s testimony during Geralds‘ guilt phase that the sneakers tested
positive for blood.   The circuit court denied this claim, holding that Geralds failed
to establish that the report was not included in the discovery provided by the State
on April 14, 1989.   We agree.
At best, Geralds has only demonstrated that the record is ambiguous as to
whether Zeigler‘s report was disclosed.   He has not, however, carried his burden of
demonstrating that the State suppressed Zeigler‘s report.   In reviewing the State‘s
discovery produced on April 14, 1989, it is not clear whether Zeigler‘s report was
included.   Although Zeigler is listed as a person known to have information that
may be relevant, Zeigler‘s report is not specifically identified.   At the evidentiary
hearing on September 23, 2003, Grammer testified, ―I‘m absolutely positive that
[defense counsel] Bob Adams had this report before he talked to Shirley Zeigler in
preparation for the trial.‖   However, at the evidentiary hearing on February 25,
2004, Grammer testified that he did ―not have a clear memory‖ of providing the
report to the defense, but believed that ―if we got it, which we did, we shared it
with Bob.‖   In looking at his file marked ―lab reports,‖ Grammer found Zeigler‘s
report.   Grammer further testified that the report is the type of document that he
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would have provided to the defense and that it was possible that if the State did not
have it on April 14, 1989, it was given to the defense afterwards.   James
Appleman, state attorney and Grammer‘s co-counsel, testified during the
evidentiary hearing that Zeigler‘s report was available to trial counsel.
Based on this record, the circuit court determined that Geralds failed to
establish ―that the [Florida Department of Law Enforcement] report was not
included in the materials provided April 14, 1989.‖   ―A trial court‘s finding after
evaluating conflicting evidence that Brady material had been disclosed is a factual
finding.‖   Way, 760 So. 2d at 911.   Therefore, the reviewing court should uphold
the finding as long as it is supported by competent, substantial evidence in the
record.   Accordingly, we hold that Geralds has failed to establish that the circuit
court erred in denying this Brady claim.
c. Third Brady Claim
As Geralds‘ third Brady claim, he argues that the State suppressed a
photograph of a photograph depicting a shoe print from the crime scene.   Geralds
argued that this shoe print did not match his shoes, which further supports his
theory that someone else committed the murder.   The circuit court denied this
claim, holding that Geralds failed to establish that the photograph of a photograph
of a shoe print was not made available to him.   We agree.
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―In previous cases, this Court has broadly stated that evidence was not
‗suppressed‘ where it was equally available to the State and the defense.‖   Way,
760 So. 2d at 911; see also Roberts v. State, 568 So. 2d 1255, 1260 (Fla. 1990);
James v. State, 453 So. 2d 786, 790 (Fla. 1984).   However, the defendants were
aware of the exculpatory information in those cases.   See Roberts, 568 So. 2d at
1260 (noting that defendant was aware of evidence that would show he was under
the influence of drugs or alcohol during the crime); James, 453 So. 2d at 790
(stating that defendant was aware of existence of photographs contained in
confidential juvenile records).   A circuit court‘s factual finding that a photograph
was or was not made available will not be overturned ―as long as it is supported by
competent, substantial evidence in the record.‖   Way, 760 So. 2d at 911.
At the evidentiary hearing, Grammer testified that ―[t]he photographs would
not necessarily be turned over but would be made available to defense counsel.‖   In
this case, Geralds did not present any evidence that photographs were not made
available or that photographs were made available and this particular print was not
included.   Accordingly, the circuit court‘s finding that Geralds has failed to
establish that the photograph of a photograph of a shoe print was not made
available to him is supported by competent, substantial evidence and Geralds has
not established a Brady violation.
d. Fourth Brady Claim
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As Geralds‘ fourth Brady claim, he argues that the State suppressed a
handwritten note authored by Investigator Bob Jimmerson on January 26, 1990,
three days before Geralds‘ first trial.13   Geralds argued that this note is important
because it establishes that the State confirmed Geralds‘ theory that he legally
bought the herringbone necklace from a jeweler named Anthony Swoboda.   The
State argued, and the circuit court agreed, that Geralds knew of Swoboda‘s
statement made to Jimmerson because Swoboda was listed as a witness for the
defense.   Thus, the circuit court denied relief on this claim.   We agree.
Swoboda testified at the evidentiary hearing that Geralds‘ trial counsel
contacted him by phone and in person to confirm the fact that he had sold Geralds
some jewelry.   Furthermore, Swoboda was listed as a witness for the defense in
preparation for trial.   Based on this record, the circuit court‘s finding that Geralds
knew of Swoboda‘s statement is supported by competent, substantial evidence.
Accordingly, Geralds could not establish a Brady violation because the record
supports the circuit court‘s finding that Geralds knew of Swoboda‘s statement.   See
Occhicone v. State, 768 So. 2d at 1042 (―[A] Brady claim cannot stand if a
defendant knew of the evidence allegedly withheld or had possession of it, simply
13.   At the evidentiary hearing, Geralds introduced Jimmerson‘s note, which
is dated January 26, 1990.   Next to the date there is a notation that reads ―Tony
Swobata [sic]- Gordon‘s Jewelry.‖   The note then provides, ―It was a thin chain[;]
don‘t remember the length[;] price?[;] I sold it to him under the table[;] no
records.‖
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because the evidence cannot then be found to have been withheld from the
defendant.‖).
e. Fifth Brady Claim
As Geralds‘ fifth Brady claim, he argues that the State suppressed
information regarding criminal charges brought against pawnbroker Billy Danford
while the case against Geralds was being litigated.14   Geralds argued that he could
have used this information to impeach Danford during the guilt phase of trial.   The
circuit court held that Geralds failed to establish that there were any deals between
the State and Danford, and further, even if this evidence should have been
disclosed, there was no prejudice.   We agree.
The information introduced at the evidentiary hearing regarding Danford‘s
criminal charges was not admissible and had no impeachment value.   This
information demonstrates that Danford was charged with a crime, but never
convicted.   See § 90.610(1), Fla. Stat. (2007) (―A party may attack the credibility
14.   At the evidentiary hearing, Geralds introduced two exhibits regarding
Danford‘s criminal charges.   The first exhibit is a case history of three separate
incidents.   The first incident shows that Danford was charged with, but found not
guilty of, driving a vehicle on a sand dune in 1987.   The second and third incidents
show that Danford was charged with failure to record transactions by a pawn
broker in April 1989 and October 1989; each case was dropped within the same
month that the charges were filed.   The second exhibit is a note, dated July 19,
1990, written by a state attorney to a detective stating that after reviewing the
investigative files on charges that Danford was dealing in stolen property, the State
could not prove the charges and declined to prosecute.
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of any witness, including an accused, by evidence that the witness has been
convicted of a crime . . .                                                              .‖) (emphasis added).   Geralds suggests that the charges
against Danford were dropped because of a ―deal‖ between the State and Danford
in exchange for Danford‘s testimony against Geralds.   However, the only evidence
provided at the evidentiary hearing regarding this alleged ―deal‖ is Grammer‘s
testimony that none had been made.   Geralds has not identified any portion of the
record that would contradict this testimony.   Thus, there is competent, substantial
evidence in the record to support the circuit court‘s finding that there was no
evidence of a ―deal‖ in the record.   Furthermore, Geralds did not deny at trial that
he pawned a herringbone necklace on the day the victim was murdered.   Instead,
he only argued that the necklace he pawned was sold to him by his pawnbroker
friend, Swoboda, and that Danford‘s testimony did not portray Geralds as a person
who had just committed a murder.   Danford‘s trial testimony is entirely consistent
with Geralds‘ theory.   At trial, Danford identified Geralds as the person who
pawned a herringbone necklace on the day the victim was murdered.   Accordingly,
even if the information regarding Danford‘s criminal charges were admissible as
impeachment evidence, Danford‘s testimony does not contradict Geralds‘ theory of
the case.   Consequently, Geralds was not prejudiced by not being able to impeach
Danford with information regarding the criminal charges.
f. Sixth Brady Claim
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As Geralds‘ sixth Brady claim, he argues that the State suppressed an
exculpatory interview that occurred between Investigator Jimmerson and Greg
Toriac two days before Geralds‘ trial began.   Toriac worked at Club LaVela in
Panama City Beach, the city where the murder took place.   Geralds argued that the
substance of the interview contradicts the alibi of William Pelton (Toriac‘s
coworker and a suspect early in the case) and could have been used to argue that
Pelton committed the murder.15   The circuit court denied this claim, holding that
Geralds knew of Toriac and that there was no Brady violation as to this exhibit.
We agree.
First, the interview has no favorable evidentiary value to Geralds.   Geralds is
attempting to establish that Pelton murdered the victim.   He argues that he can
establish this by showing the jury that Pelton was not at work at Club LaVela on
the day of the murders, which was Pelton‘s alibi.   In the interview, Toriac states
15.   At the evidentiary hearing, Geralds introduced Investigator Jimmerson‘s
notes regarding an interview with Toriac.   ―Gregg Toriac‖ is written across the top
of the note and reads in whole:
Middlebrooks & myself were discussing William Pelton (01-
26-90) & we know he would leave work alot [sic] & stopped at Radio
Shack & would bring in a reciept [sic] to show or cover why he was
missing or gone so long.
Dave Meadows[the manager of Club LaVela] did write his time
in on Feb. 1, 1989 but he is like us wouldn‘t really know if William
stayed or left that day.
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that he, like the manager of the club, would not know whether Pelton was at work
on the day of the murder.   Indeed, Geralds candidly admits when arguing this point
under his Giglio claim below that ―Jimmerson‘s interview notes . . . indicate that
no one was certain whether Mr. Pelton was at work on the morning of February 1,
1989.‖
Second, Geralds failed to establish that information regarding this interview
was suppressed.   At the evidentiary hearing, Grammer testified that the information
about Pelton being away from work was part of discovery.   Additionally, Toriac
was listed as a witness for the defense and in the defense praecipe for subpoena.
Third, Geralds has not established that he was prejudiced.   Even if Toriac
would have testified to the exact information he gave at the interview, his
testimony would not discredit Pelton‘s alibi.   In the interview, Toriac merely states
that he does not know whether Pelton was at work on the day of the murders.
Geralds fails to establish how this testimony would have undermined confidence in
the outcome of his trial.   Accordingly, the circuit court did not err in holding that
there was no Brady violation as to this interview.
g. Seventh Brady Claim
As Geralds‘ seventh Brady claim, he argues that the circuit court failed to
address several pieces of evidence that were admitted during the evidentiary
hearing and alleged to have been suppressed.   Specifically, Geralds argues that the
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court ignored Exhibit 11, which is a handwritten note by Investigator Jimmerson
indicating that he recovered a pawn ticket from Geralds six days after the
herringbone necklace was recovered.   Geralds argues that this evidence is
inconsistent with Jimmerson‘s testimony that he obtained the pawn ticket the day
the necklace was recovered.   Geralds further argues that the court ignored Exhibits
31, 34, and 36, which consist of notes regarding the location of finger and palm
prints lifted from the crime scene and the victim‘s automobile, the reports, and the
notes of hair analysis.   Finally, Geralds argues that the court ignored evidence that
the State suppressed other handwritten notes by Jimmerson regarding his initial
interview with the victim‘s husband.   Geralds fails to identify which exhibits
involve this latter information.   Although the trial court did not specifically address
these pieces of evidence in its order, we deny relief because the record supports the
conclusion that Geralds failed to demonstrate either that the information was
suppressed by the State or that the information was material.   Thus, Brady error
has not been demonstrated.
2. Giglio Claims
Claims that the State knowingly presented false or misleading testimony are
governed by Giglio, 405 U.S. 150.   A claim under Giglio alleges that a prosecutor
knowingly presented false testimony against the defendant.   A Giglio violation is
demonstrated when (1) the prosecutor presented or failed to correct false
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testimony; (2) the prosecutor knew the testimony was false; and (3) the false
evidence was material.   Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006).   Once
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.   Id.
Under this standard, the State has the burden to prove that the false testimony was
not material by demonstrating it was harmless beyond a reasonable doubt.   Id.; see
also Mordenti, 894 So. 2d at 175.   Thus, the standard applied under the third prong
of the Giglio test is more defense-friendly than the test set out in Strickler, 527
U.S. at 281-82, which is applied to a violation under Brady.   Giglio claims present
mixed questions of law and fact.   Sochor v. State, 883 So. 2d 766, 785 (Fla. 2004).
We thus defer to those factual findings supported by competent, substantial
evidence, but we review de novo the application of the law to the facts.   Id.
a. First Giglio Claim
As Geralds‘ first Giglio claim, he argues that the State allowed crime scene
analyst Rousseau to testify falsely when she stated that she tested Geralds‘ sneaker
and it ―came up positive for presumptive testing for blood.‖   Geralds argued that
the State failed to reveal that when the sneakers were tested by FDLE analyst
Zeigler, Zeigler did not find the presence of blood.   Geralds concluded that the
State violated Giglio by allowing Rousseau to testify as she did while possessing
Zeigler‘s report.
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We deny relief because error has not been demonstrated.   Geralds has failed
to show how the Zeigler report makes Rousseau‘s testimony false or misleading.
Rousseau conducted her own test on the sneakers, and she testified concerning her
results, not the results from any other testing.
b. Second-Fifth Giglio Claims
Geralds‘ second through fifth Giglio claims all relate to Investigator
Jimmerson‘s testimony, which was presented during the resentencing phase.
Geralds argued that the prosecutor violated Giglio during resentencing when
Investigator Jimmerson testified that (1) Pelton‘s alibi had been confirmed, (2) the
shoeprints found at the crime scene were similar to Geralds‘ sneakers, (3) one of
Geralds‘ shoes tested positive for blood, and (4) the lab determined that blood
found on the herringbone necklace belonged to the victim.   The circuit court
denied these claims, holding that Jimmerson‘s testimony at the resentencing did
not constitute a Giglio violation.   We agree.
At resentencing, Jimmerson testified that he verified that Pelton was at work
on the date of the murder.   There is nothing in the record indicating that Jimmerson
did not confirm Pelton‘s alibi, and Geralds did not present any evidence at the
evidentiary hearing to the contrary.   Geralds relies on Jimmerson‘s interview with
Toriac, raised as his sixth Brady claim, and argues that this interview indicates that
no one was certain whether Pelton was at work on the morning of the murders.
- 19 -

This interview only indicates that Toriac, not Jimmerson, did not confirm Pelton‘s
alibi.   At resentencing, Jimmerson also testified that he saw one consistent shoe
track throughout the victim‘s home that came from the same type of shoe that
belonged to Geralds.   Jimmerson testified to what he observed.   In his observation,
he saw only one consistent shoe track.   Jimmerson also testified at resentencing
that he was present when Geralds‘ shoes were tested for the presence of blood and
that one of the shoes tested positive.   Again, Jimmerson testified to what he
personally observed, and Geralds failed to present any evidence indicating that this
testimony was false.   Finally, the record does not support Geralds‘ argument that
Jimmerson testified that the blood found on the herringbone necklace belonged to
the victim.   Instead, Jimmerson testified at resentencing that the laboratory
determined that the blood type on the necklace matched the victim‘s type.
Accordingly, there is competent, substantial evidence to support the circuit court‘s
determination that this testimony was not inaccurate or untrue.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Geralds argued before the circuit court that his trial counsel, Bob Adams,
was ineffective during the guilt phase and the penalty phase.   While the same
standard of law applies to each claim, the guilt phase and the penalty phase
arguments will be analyzed separately.
- 20 -

In order to establish a claim for ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), two requirements must be
satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.   A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted).
Because both prongs of the Strickland test present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the circuit court‘s
factual findings that are supported by competent, substantial evidence, but
reviewing the circuit court‘s legal conclusions de novo.   See Sochor v. State, 883
So. 2d 766, 771-72 (Fla. 2004).
There is a strong presumption that trial counsel‘s performance was not
ineffective.   See Strickland, 466 U.S. at 689.   ―A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to
evaluate the conduct from counsel‘s perspective at the time.‖   Id.   The defendant
carries the burden to ―overcome the presumption that, under the circumstances, the
- 21 -

challenged action ‗might be considered sound trial strategy.‘‖   Id. (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)).   ―Judicial scrutiny of counsel‘s
performance must be highly deferential.‖   Id.   In Occhicone v. State, 768 So. 2d
1037, 1048 (Fla. 2000), we explained that ―strategic decisions do not constitute
ineffective assistance of counsel if alternative courses have been considered and
rejected and counsel‘s decision was reasonable under the norms of professional
conduct.‖
1. Guilt Phase
Geralds raises four categories of allegedly deficient performance during the
guilt phase, including counsel‘s failure to (a) present evidence from the crime
scene; (b) cross-examine witnesses; (c) investigate and present witnesses; and (d)
make objections and proper motions.   The circuit court denied this claim, holding
that (1) trial counsel‘s final argument during the guilt phase addressed the issues
Geralds raised; (2) trial counsel followed a strategy focusing on the circumstantial
nature of the evidence and the lack of definite evidence linking Geralds to the
crime; (3) trial counsel adequately and effectively cross-examined the State‘s
witnesses; (4) Geralds failed to demonstrate what additional information would be
revealed if trial counsel had hired an investigator; and (5) Geralds did not establish
that counsel‘s performance was so deficient as to amount to ineffective assistance
of counsel as to any of the claims he made.
- 22 -

a. Evidence from the Crime Scene
Geralds argues that trial counsel should have presented evidence related to
the physical evidence, or lack thereof, obtained from the crime scene and the
victim‘s body.   After the State rested its case at trial, the defense moved for a
judgment of acquittal based on the insufficiency of the evidence.   When the motion
was denied by the court, the defense rested its case without calling any witnesses
or presenting any evidence.
Because trial counsel is deceased, he was not able to testify at the
evidentiary hearing regarding his trial strategy.   Nevertheless, a review of his
closing argument during Geralds‘ guilt phase suggests that trial counsel‘s strategy
was to highlight all the missing pieces of evidence in order to create a reasonable
doubt.   We agree with the circuit court‘s summary of trial counsel‘s closing
argument and hold that trial counsel‘s performance was not deficient, because his
closing argument during the guilt phase addressed the evidentiary issues Geralds
raised in his postconviction motion.   In denying this claim, the circuit court noted
the following facts from the record:
On page 79 of Volume III of the guilt phase transcript (page 1982)
trial counsel called the jurors‘ attention to what they did not hear in
the case.   He specifically argued the lack of evidence on page 81
(page 1984) and trial counsel reminded the jurors that the sunglasses
and gold chain only looked like the victim‘s.   He also argued there
was no way to tell what things were actually taken due to Carolyn
Pettibone gathering up some jewelry before the family came back
from Ohio.   On page 90, [(]page 1993) he also pointed out that there
- 23 -

was only presumptive tests for blood made by Laura Russo [on
Geralds‘ sneakers].   He questioned the lack of presence of blood in
the car.   On page 92 he argued the stain in the back seat could mean
more than one individual was involved and the one who was bloody
got in the back seat (page 1995).   He also questioned the failure to
show that a contact lens found on the victim actually belonged to the
victim.   He again pointed out that a prescription check could reveal if
the lens could have belonged to another person who lost it in the
struggle.   On page 95 he pointed out the lack of testimony about the
defendant‘s clothes being bloody and the lack of scratches on his face.
He argued the importance of this when compared to the fingernail torn
off on the victim‘s hand.   On pages 97-98, trial counsel commented on
the fact that the Thomas ties were not uncommon and that one of the
ties in Geralds‘ trunk was not a Thomas tie.   On page 99, he argued
about the failure to pursue other suspects and how that was a lack of
evidence (page 2002).   He further argued the lack of blood on the
Nike shoes and the fact that the tread designs were not uncommon.
He argued that the pawning of the necklace and the giving of your
identification without any attempt to disguise yourself was
inconsistent with a guilty conscious [sic].   He also pointed out that
Bill Danford did not see any scratches, bruises or hurt knuckles (page
2007).   He pointed out to the jurors the various samples taken from
Geralds and why none were found at the scene.   He questioned the
lack of evidence as to anything under the fingernails of the victim and
the fibers on a corner of the residence in the interior.   He pointed out
to the jury that the defense requested DNA testing on the necklace and
why didn‘t the State do it itself.   On rebuttal, trial counsel again
argued the lack of evidence.   He argued where were certain witnesses
and this was really a case of coincidence.   All of these arguments by
trial counsel refute the claims of the defendant that his trial counsel
was not prepared and was deficient in his performance.
Geralds does not deny that trial counsel argued these points during closing
argument.   Instead, he argues that trial counsel should have presented evidence of
this lack of evidence instead of merely arguing in closing that there was no
evidence.
- 24 -

Even though closing argument is not evidence, it is a powerful tool.16
Through his closing argument, trial counsel was able to highlight the lack of
evidence and characterize the State‘s case as a failure to properly investigate and
present the entire picture.   For example, when highlighting the lack of evidence
regarding to whom the torn fingernail belonged, trial counsel argued, ―Either they
[(the State)] didn‘t check or it didn‘t match up with Mark Geralds.   And they want
you to guess a man into a guilty verdict in a case this terrible.‖   Lynn Henson, a
microanalyst for FDLE, analyzed the fingernail and concluded that it belonged to
the victim.   Geralds makes no argument that trial counsel was not aware of this
report.   Had counsel presented Henson‘s analysis, he could not have argued that
the State failed to present evidence that it had fully investigated and tested the
evidence, such as the fingernail.   Other than stating what trial counsel should have
16.   ―The purpose of closing argument is to help the jury understand the
issues in a case by ‗applying the evidence to the law applicable to the case.‘‖
Murphy v. Int‘l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Hill
v. State, 515 So. 2d 176, 178 (Fla. 1987)).   As the Second District Court of Appeal
noted:
Although it is axiomatic that the arguments of counsel are not
evidence, it would be naive to suppose that they do not have a
profound effect upon the jury.   These summarizing remarks often tie
together for the jurors previously unconnected or seemingly irrelevant
testimony, and highlight those phases of the evidence considered most
favorable by each of the opposing parties.   In short, the closing
argument is a crucial phase of a lawsuit . . .
Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449 (Fla. 2d DCA 1966).
- 25 -

done differently, Geralds does not establish why trial counsel‘s strategy was
deficient.   When held up against the strong presumption that trial counsel‘s
performance was not ineffective, Geralds has failed to carry his burden.   See
Strickland, 466 U.S. at 690.
Furthermore, even if trial counsel‘s performance was deficient for not
presenting this evidence, Geralds fails to establish how he was prejudiced.   Trial
counsel referenced the lack of evidence in closing argument and the jury was
aware of it.   Accordingly, the failure to actually present evidence of non-evidence
in this case could not have affected the fairness and reliability of the proceeding so
that confidence in the outcome is undermined.
b. Cross-Examining Witnesses
Geralds argues that trial counsel should have cross-examined Blyth and Bart
Pettibone, the victim‘s children, to show that their testimony evolved over a period
of time.   Specifically, Geralds argues that trial counsel should have cross-examined
Blyth and Bart on the fact that they did not tell the police that they encountered
Geralds until after Geralds was arrested.   Blyth was in the ninth grade when she
testified.   Bart was nine years old when he testified.   Through Blyth and Bart, the
jury heard evidence that one week prior to the murder, Blyth, Bart, and the victim
encountered Geralds in a shopping mall and Geralds learned that the victim‘s
husband was out of town.   Blyth was cross-examined while Bart was not.   Trial
- 26 -

counsel questioned Blyth regarding Judy Lundmark, the victim‘s housekeeper,
who reportedly had a key to the home.   Counsel also questioned Blyth regarding
the fact that she and at least three other family members went through the victim‘s
possessions after the murder.   Counsel was also able to obtain a concession from
Blyth that she could not conclusively identify the herringbone necklace.   The
circuit court held that trial counsel‘s performance on this point was not deficient.
We agree.
First, Geralds does not identify any reason why the children should have told
police that they encountered Geralds in the mall until after he was arrested.
Second, trial counsel could have been exercising restraint in cross-examining these
witnesses because they are children.   Trial counsel could have reasonably believed
that the jury would penalize Geralds for allowing trial counsel to strenuously cross-
examine the victim‘s children.   In Brown v. State, 846 So. 2d 1114 (Fla. 2003), we
rejected an argument that trial counsel should have cross-examined a witness on
certain issues, or more strenuously examined him on certain issues, because such
an argument ―is essentially a hindsight analysis.‖   Id. at 1121.   ―The standard is not
how present counsel would have proceeded, in hindsight, but rather whether there
was both a deficient performance and a reasonable probability of a different
result.‖   Id. (quoting Cherry v. State, 659 So. 2d 1069, 1073 (Fla. 1995)).
- 27 -

Similarly, we hold that Geralds‘ argument is essentially a hindsight analysis and
that trial counsel‘s performance was not deficient in this regard.
Nevertheless, even if trial counsel was deficient for not cross-examining
these children any further, Geralds fails to establish how he was prejudiced.
Geralds does not make the connection as to how cross-examining these witnesses
any further on the point he raises would undermine confidence in the outcome.
Accordingly, Geralds fails to establish that he was prejudiced.
c. Investigating and Presenting Witnesses
Geralds argues that if trial counsel had properly investigated the case, he
could have shown the jury that the Thomas Industries plastic ties that were
discovered are very common among individuals involved in the construction
industry, such as Geralds and the victim‘s husband.17   Geralds also argues that trial
counsel could have presented Swoboda‘s testimony to corroborate Geralds‘
statement that he possessed the herringbone necklace prior to the crimes.   Although
the circuit court addressed Geralds‘ argument that trial counsel did not adequately
investigate the case, this ruling was in the context of mitigation evidence presented
during the penalty phase.
17.   Evidence linking Geralds to the crime included a plastic tie recovered
from the victim‘s wrist.   This tie matched those found in Geralds‘ car.   Geralds I,
601 So. 2d at 1159.
- 28 -

Nonetheless we deny relief because Geralds has failed to establish that trial
counsel‘s performance was deficient with respect to the investigation of the plastic
tie.   Clifford W. Hutchinson, project engineer for Thomas Industries, testified that
the plastic tie used to bind the victim was made by the company he worked for,
which is the same company that made the plastic ties found in Geralds‘ trunk.
Trial counsel cross-examined Hutchinson regarding how many ties Hutchinson‘s
company produced, and Hutchinson estimated that it was somewhere between
thirty and one hundred thousand.   In closing argument, trial counsel commented on
the fact that the plastic ties were common.   Thus, trial counsel informed the jury of
the plastic tie‘s common use.
Further, even if trial counsel should have presented more evidence that the
plastic ties were in common use, Geralds fails to establish prejudice.   Trial counsel
informed the jury of the widespread use of the plastic ties in closing argument and
the jury returned a guilty verdict.   Furthermore, Geralds fails to establish how this
evidence would have undermined confidence in the outcome when there was other
evidence linking him to the crime, such as the victim‘s blood type matching a
blood stain on the necklace he pawned.   See Geralds I, 601 So. 2d at 1158-59.
With respect to Swoboda, Geralds has not shown that counsel acted
deficiently in failing to present his testimony.   At the evidentiary hearing, Swoboda
testified that he sold Geralds a herringbone necklace.   Geralds argues that this
- 29 -

evidence would establish that the necklace he pawned is not the one that belonged
to the victim.   However, even if Swoboda had testified at trial that he sold Geralds
a herringbone necklace, Geralds fails to explain how the victim‘s blood type
appeared on the necklace that he pawned.   Thus, Swoboda‘s testimony would not
have helped Geralds.
Nevertheless, even if trial counsel was deficient for not presenting
Swoboda‘s testimony, Geralds fails to establish prejudice.   Swoboda‘s testimony
does nothing to discredit the fact that Geralds pawned a necklace that was
identified as belonging to the victim and had a blood stain matching the victim‘s
blood type.   At best, Swoboda‘s testimony only establishes that Geralds purchased
an unrelated herringbone necklace at a time unrelated to the murder.   Accordingly,
Geralds fails to establish that this evidence would undermine confidence in the
outcome of the trial.
d. Making Objections and Proper Motions
Geralds argues that trial counsel failed to object to the State‘s closing
argument that Geralds wore gloves to conceal his fingerprints.18   Geralds further
argues that the gloves he wore did not have any material over the upper portion of
his fingertips, which would prevent him from leaving prints.
18.   At trial, Douglas Freeman, Geralds‘ grandfather, testified that Geralds
was wearing gloves that had the backs and tops of the fingers cut out.   At closing
argument, the State argued that Geralds wore gloves, ―[t]he kind that don‘t leave
fingerprints in houses.‖
- 30 -

We deny relief because Geralds does not establish how the prosecutor‘s
comment undermines confidence in the outcome of the trial.   Indeed, Geralds does
not make any arguments on how this comment undermines the evidence linking
him to the crime.   Accordingly, Geralds fails to establish that this evidence
undermines confidence in the outcome of the trial.
2. Penalty Phase
Geralds argues that trial counsel was ineffective for failing to investigate and
present sufficient mitigating evidence at Geralds‘ resentencing.   At the
postconviction hearing, Geralds presented the testimony of James E. Beller, the
psychotherapist who testified on Geralds‘ behalf during resentencing.   Geralds
argued that Beller‘s testimony at the postconviction hearing establishes that
Beller‘s diagnosis was not supported by sufficient evidence and that additional
investigation revealed that Geralds suffered from attention deficit hyperactivity
disorder (ADHD) and depression as a child.   Geralds further argues that trial
counsel failed to develop or present evidence regarding Geralds‘ childhood
difficulties and early mental health problems, his family dysfunction, and his life
of isolation.   The State argues, and the circuit court agreed, that Beller‘s testimony
did not change at the evidentiary hearing.   The postconviction court further noted
that trial counsel conducted an investigation and presented mitigating evidence at
- 31 -

the second penalty phase.   We agree and hold that trial counsel‘s performance at
Geralds‘ resentencing does not constitute ineffective assistance of counsel.
Beller‘s testimony at Geralds‘ resentencing was not significantly different
from the testimony he gave at the evidentiary hearing.   At resentencing, Beller
testified that he diagnosed Geralds as ―an anti-social personality disorder and bi-
polar disorder manic.‖   Beller testified that he came to this conclusion after
administering five different tests and conducting an interview.   He saw Geralds
once for testing and once for a two-hour therapy session.   Beller further testified
that Geralds was depressed due to family issues and suffered from anxiety.   As a
child, Geralds became significantly depressed and lonely.   On cross-examination,
Beller testified that he did not talk to any of the investigating officers or to
Geralds‘ family or friends in preparing for his testimony.
At the evidentiary hearing, Beller testified that he did not change his opinion
on whether Geralds was bipolar or antisocial.   Furthermore, Beller testified that he
felt that he was prepared to testify when he testified during Geralds‘ resentencing.
Beller also admitted that the testing conducted for the evidentiary hearing came out
identical to the testing conducted for the resentencing.
There were two differences between Beller‘s evidentiary and resentencing
testimony.   First, Beller interviewed two family members and one friend, and these
contacts led Beller to believe that Geralds would have been diagnosed as ADHD
- 32 -

when he was a child.   Second, Beller administered the Psychopathy Check List
Revised test (PCLR).
With respect to the two family members and one friend, Geralds does not
present any evidence that he told his trial counsel about these contacts or that trial
counsel should have been aware of them.   In fact, these contacts are not even
identified by name in the record—they are only referred to as ―two family
members and one friend.‖   Accordingly, Geralds fails to establish that trial
counsel‘s performance was deficient for failing to discover these unidentified
contacts.   Geralds also fails to establish prejudice on this issue.   Beller admitted
that Geralds told Beller about his background information and family history for
the resentencing.   Indeed, Beller admitted that the information Geralds gave was
―remarkably similar‖ to the information learned from these two family members
and one friend.
With respect to the PCLR test, Beller admitted that this test was not
available at the time of Geralds‘ resentencing because it had not been developed
yet.   Accordingly, even assuming that psychological tests are something that trial
counsel should investigate, trial counsel cannot be deficient for failing to
investigate a test that did not exist.
- 33 -

Accordingly, Geralds fails to establish how trial counsel was ineffective
during the penalty phase.19
C. NEWLY DISCOVERED EVIDENCE OF A CONFLICT OF INTEREST
Geralds argued before the circuit court that newly discovered evidence
establishes a conflict of interest between the Public Defender‘s Office and the State
Attorney‘s Office that deprived him of his right to a fair trial.   Specifically, Geralds
relied on an evidentiary hearing in an unrelated case to show the existence of an
agreement between the Public Defender and the State Attorney to not call Dr.
William Sybers, the medical examiner who testified during Geralds‘ guilt phase, so
that Dr. Sybers could not be impeached regarding the active investigation of Dr.
Sybers‘ involvement in the death of his wife.   Both offices allegedly agreed that
the State would call other experts to testify as to the manner and cause of death.   At
resentencing, Dr. James Lauridson testified as to the manner and cause of death
while using Dr. Sybers‘ materials.20
19.   We also note that the resentencing trial court entered an order to hire an
investigator on October 5, 1992.   On November 18, 1992, trial counsel filed a
motion for continuance, arguing, in part, that the investigator ―has been conducting
background investigation‖ and that additional time was necessary to prepare for
resentencing.   Geralds does not establish how or why the postconviction trial court
should have found that this investigation was inadequate.
20.   On appeal from Geralds‘ resentencing, we held that the trial court did
not err in allowing Dr. Lauridson to testify using Dr. Sybers‘ materials.   Geralds II,
674 So. 2d at 100.
- 34 -

A legally sufficient claim of newly discovered evidence must establish two
elements.   First, the evidence must not have been known by the trial court, the
party, or counsel, and it must appear that the defendant or defense counsel could
not have known of it by the use of due diligence.   Jones v. State, 709 So. 2d 512,
521 (Fla. 1998).   Second, the evidence must be of such nature that it would
probably produce an acquittal or yield a less severe sentence on retrial.   Id.
We reject Geralds‘ argument that a conflict of interest exists because
Geralds has failed to present any evidence whatsoever that his attorney was part of
any alleged agreement between the Public Defender and the State Attorney.   In
fact, the record reflects that defense counsel strenuously objected to the State
calling Dr. Lauridson as a witness to testify using Dr. Sybers‘ materials.   The
circuit court correctly noted this point, stating that ―Adams‘ actions do not support
a finding that he honored the terms of any such agreement if it did, in fact, exist.‖
Accordingly, the circuit court did not err in denying this claim.
D. SUMMARILY DENIED CLAIMS
Geralds argues that the postconviction court erred in summarily denying the
first and second supplement to his postconviction motion, various claims of
ineffective assistance of counsel contained in his amended postconviction motion,
and a newly discovered evidence claim in his amended postconviction motion.   We
conclude that the circuit court did not err in summarily denying these claims.
- 35 -

In determining whether an evidentiary hearing is required, we have held:
[A] defendant is entitled to an evidentiary hearing on a postconviction
relief motion unless (1) the motion, files, and records in the case
conclusively show that the prisoner is entitled to no relief, or (2) the
motion or a particular claim is legally insufficient.   The defendant
bears the burden of establishing a prima facie case based upon a
legally valid claim.   Mere conclusory allegations are not sufficient to
meet this burden.   However, in cases where there has been no
evidentiary hearing, we must accept the factual allegations made by
the defendant to the extent that they are not refuted by the record.
Hannon v. State, 941 So. 2d 1109, 1138 (Fla. 2006) (quoting Freeman v. State, 761
So. 2d 1055, 1061 (Fla. 2000)).   This standard must be applied to each of Geralds‘
claims that summary denial was improper.
1. First and Second Supplements
In both supplements, Geralds argued that he had learned of other suspects
involved in the murder investigation.   He alleged that either the State violated
Brady when it failed to disclose this exculpatory evidence or trial counsel was
ineffective for failing to present it to the jury.   The circuit court summarily denied
this claim, holding that there were no specifics contained in the supplement
sufficient to establish that this information should have been disclosed or, if it was
required to be disclosed, that it would have any prejudice on the defense by the
failure to disclose it.   The circuit court further held that there were no allegations
that this information was available to trial counsel and that he had failed to act on
it.   We agree.
- 36 -

In his supplements, Geralds identified other suspects in this case and the
details of why they were suspected.   In addressing these suspects, however,
Geralds merely provided facts and failed to allege any of the proper elements of a
Brady or ineffective assistance of counsel claim.   Geralds bears the burden of
establishing a prima facie case based upon a legally valid claim.   Freeman, 761 So.
2d at 1061.   The fact that others were suspected of committing this crime, without
more, is insufficient to establish a legally sufficient Brady claim.   With respect to
the ineffective assistance of counsel aspect of this claim, Geralds also fails to
allege that trial counsel knew of, or failed to act on, any information regarding
other suspects.   Accordingly, the circuit court did not err in summarily denying
these claims because Geralds‘ conclusory allegations failed to establish a legally
sufficient Brady or ineffective assistance of counsel claim.
2. Ineffective Assistance of Counsel
Geralds argues that the circuit court erred in summarily denying some of his
ineffective assistance of counsel claims.   Specifically, he argues that the circuit
court erred in summarily denying his claim that trial counsel failed to (a) prevent
the prosecutor from reading testimony from the previous trial into the record; (b)
object or correct Jimmerson‘s summary of evidence presented during the guilt
phase; (c) subject the penalty phase testimony to an adversarial testing; and (d)
object to improper prosecutorial comments.   A review of Geralds‘ allegations
- 37 -

reveals that Geralds has not met his burden of alleging a legally sufficient claim.
See Freeman, 761 So. 2d at 1061.   Specifically, Geralds fails to establish how any
of these alleged instances of ineffective assistance of counsel prejudiced him.
Accordingly, the circuit court did not err in summarily denying these claims.
3. Newly Discovered Evidence
Geralds also argues that the postconviction court erred in summarily denying
his newly discovered evidence claim that Dr. Lauridson testified falsely at his
resentencing.   Geralds directs this Court‘s attention to a letter from Dr. Lauridson
to Assistant State Attorney Steve Meadows in which Dr. Lauridson states that Dr.
Sybers made a mistake in his calculations in a case unrelated to Geralds‘ case.
Based on this letter, Geralds concludes that Dr. Lauridson testified falsely in the
unrelated case and therefore testified falsely in his case.   The circuit court
summarily denied this claim, holding that Geralds‘ allegations were insufficient
and conclusory and that he failed to establish prejudice.   We agree.
In the instant case, Geralds fails to establish both elements of a legally
sufficient claim of newly discovered evidence.   See Jones, 709 So. 2d at 521.
First, Geralds has not alleged how or when he discovered Dr. Lauridson‘s letter.
Second, Geralds fails to establish how Dr. Lauridson‘s letter would probably
produce an acquittal or yield a less severe sentence on retrial.   In fact, Geralds has
not established that the letter would even be admissible in evidence or as
- 38 -

impeachment material.   Accordingly, we hold that the circuit court did not err in
summarily denying this claim.
E. MOTION TO DEPOSE A SUSPECT
During postconviction proceedings, Geralds filed a motion to depose Bob
Willoughby, a former Bay County Sheriff‘s officer, alleging that Willoughby had
interviewed Warren Cash, a suspect in the murder case, and that Willoughby
would not speak to the defense about this interview without a subpoena.   Geralds‘
second supplement to his postconviction motion was filed simultaneously with this
motion to depose Willoughby.   In the supplement, Geralds raised a Brady claim,
alleging that the State failed to disclose the information regarding Cash.   The State
argued that the motion should be denied because Geralds‘ Brady claim regarding
Cash as a suspect should be denied.   The postconviction court denied the motion to
depose without discussion.
The denial of a motion to depose a witness is reviewed for an abuse of
discretion.   Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008).   ―Discretion is
abused only when the judicial action is arbitrary, fanciful, or unreasonable, which
is another way of saying that discretion is abused only where no reasonable person
would take the view adopted by the trial court.‖   State v. Coney, 845 So. 2d 120,
137 (Fla. 2003) (quoting White v. State, 817 So. 2d 799, 806 (Fla. 2002)).   We
have already held that the circuit court did not err in summarily denying Geralds‘
- 39 -

Brady claim regarding other suspects, which included Geralds‘ allegations
regarding Cash as a suspect.  Accordingly, we conclude that because Geralds failed
to raise a proper Brady claim regarding Cash as a suspect, the circuit court did not
abuse its discretion in denying his motion to depose Willoughby.
F. ACCESS TO FILES AND RECORDS
Geralds raises three claims relating to his public records requests pursuant to
Florida Rule of Criminal Procedure 3.852.   ―A circuit court‘s ruling on a public
records request filed pursuant to a [postconviction] motion will be sustained on
review absent an abuse of discretion.‖   Coney, 845 So. 2d at 137.
First, Geralds argues that the State Attorney did not provide handwritten trial
notes.   State Attorney Joe Grammer testified during the evidentiary hearing that
although trial notes were not disclosed, he did not know whether trial notes even
existed.   Based on this testimony, Geralds argued that he was denied access to
public records because the State did not produce its trial notes.   Even if the
documents existed, Geralds has not presented a legally sufficient claim.   The
State‘s trial notes are not public records subject to disclosure.   See, e.g., Johnson v.
Butterworth, 713 So. 2d 985, 986-87 (Fla. 1998) (finding state attorney‘s outline of
evidence, a proposed outline for trial, and handwritten notes were not public
records); Bryan v. Butterworth, 692 So. 2d 878, 880-81 (Fla. 1997) (finding legal
pads regarding Attorney General‘s impressions and strategy, sheets summarizing
- 40 -

psychological reports prepared by paralegal for later use by the Attorney General,
and annotated map prepared by Attorney General were not public records).
Accordingly, we hold that the circuit court did not abuse its discretion in denying
this public records request.
Second, Geralds argues that in response to a December 1998 public records
request the Panama City Police Department (PCPD) produced only printouts
indicating whether individuals had a criminal record, but not the criminal record
itself.   Geralds‘ demand for additional public records requested ―[a]ny and all files
(regardless of form . . .) related to any matter in which the below named
individuals were the subject of an investigation, accused, charged and/or convicted
of a crime, and/or was a witness suspect or victim.‖   Forty-nine witnesses were
listed without any other specific information.   This Court has ―consistently held
that a defendant must plead with specificity the outstanding public records he seeks
to obtain.‖   Rodriguez v. State, 919 So. 2d 1252, 1273 (Fla. 2005); see also
Thompson v. State, 759 So. 2d 650, 659 (Fla. 2000).   The instant records request is
similar to the one made in Rodriguez, which this Court held was ―unduly broad
and vague.‖   Rodriguez, 919 So. 2d at 1273 & n.11.   Indeed, the circuit court in the
instant case found the same records request to be unduly broad and vague when the
FDLE objected.   Accordingly, we hold that the circuit court did not abuse its
discretion in denying this public records request.
- 41 -

Finally, Geralds argues that the circuit court erred when it held that Geralds
was required to provide more information regarding the individuals listed in a
public records request in order to determine whether the request was relevant.   In
July 2001, Geralds filed an affidavit demanding additional public records from the
Bay County Sheriff‘

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