Jerry WHITE, Appellant, v. STATE of Florida, Appellee, 664 So. 2d 242

PER CURIAM. We have on appeal circuit court orders denying Jerry White’s Florida Rule of Criminal Procedure 3.850 motion for postconvietion relief, denying his application for stay of execution, and denying his complaint for disclosure of public records. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm. White was convicted of robbing a small grocery store in Taft, Florida, and shooting a customer to death. Both the customer as well as the store’s owner were shot execution-style in the back of the head.

The customer died on the scene, and the owner, who was paralyzed from the neck down, died several years later. We affirmed the murder and robbery convictions and sentence of death. White v. State, 446 So.2d 1031 (Fla. 1984). After the governor signed the first death warrant, White filed an application for stay of execution and a rule 3.850 motion for postconvietion relief in the trial court. The court granted the stay but denied the motion following an evidentiary hearing. We affirmed the denial. White v. State, 559 So.2d 1097 (Fla.1990).

The trial court denied White’s second rule 3.850 motion without an evidentiary hearing after the governor signed the second death warrant. We affirmed the denial. White v. State, 565 So.2d 322 (Fla.1990). We also denied White’s petition for writ of habeas corpus and request for stay of execution. White v. Dugger, 565 So.2d 700 (Fla.1990). The governor recently signed a third death warrant and the trial court conducted a hearing and heard oral argument but reviewed no evidence on White’s third 3.850 motion and request for stay of execution. The court denied relief and White appeals, raising four issues.

White asserts that the trial court erred in denying relief on his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the State withheld exculpatory evidence. For purposes of expediency, the State conceded below that the materials in issue constituted newly discovered evidence cognizable under rule 3.850.

The United States Supreme Court ruled in Brady that the State cannot suppress material evidence: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.... Id. at 87, 83 S.Ct. at 1196. The Court later explained the meaning of “material” in United States v.

Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985): The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. at 682, 105 S.Ct. at 3383. White’s Brady claim is based on the following materials: the written statements of Henry Tehani and his twelve-year-old daughter and the reports of two officers.

We find that these materials fail to satisfy the materiality requirement of Brady since there is no reasonable probability that the result would have been different had these materials been disclosed. White next asserts that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he failed to argue to the jury the fact that White has a low I.Q. as evidenced by a presentence investigation report (“PSI”).

White asserts that this claim is not time-barred by rule 3.850’s two-year limitation because the PSI is newly discovered evidence: Although it was prepared in conjunction with an earlier conviction and was disclosed to trial counsel at the time of trial, CCR did not learn of its existence until recently. This claim is procedurally barred. The PSI report was in trial counsel’s possession at the time of trial and could have been timely discovered with due diligence by collateral counsel and raised in White’s initial rule 3.850 ineffectiveness claim.

Further, collateral counsel raised the “low IQ” issue in both White’s first 3.850 motion and the appeal of the denial of that motion. He stated in the latter, “For example, [trial counsel] failed to introduce competent evidence of Mr. White’s low I.Q., and instead ventured to establish the opposite by trying to get that evidence in through the hearsay and unqualified testimony of White’s mother.” The present claim is successive. Even if this claim were not procedurally barred, it is insufficient to support an ineffectiveness claim.

The United States Supreme Court set out the standard for determining ineffectiveness of trial counsel in Strickland: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. The Court explained further what it meant by “deficient”: Judicial scrutiny of counsel’s performance must be highly deferential.

It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... Id. at 689, 104 S.Ct. at 2065 (citation omitted). Under this standard, trial counsel’s performance was not rendered deficient by his failure to present to the jury data concerning White’s low IQ as evidenced in the PSI report. The trial record contains extensive evidence documenting the deliberate nature of White’s actions before, during, and after the crime.

White himself took the stand and gave a detañed account of the crime and his actions. We note that trial counsel presented five witnesses in mitigation during the penalty phase. We find the remainder of White’s claims proeedurally barred or without merit. It is so ordered. GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur. ANSTEAD, J., dissents with an opinion, in which SHAW and KOGAN, JJ., concur. NO MOTION FOR REHEARING WILL BE ALLOWED. .

White makes the following claims: 1) Exculpatory evidence was not presented to the jury; 2) the trial court erred in denying White's request for grand jury transcripts; 3) the lower court failed to review materials withheld by the State; 4) White has been denied effective assistance of collateral counsel.