Michael RIVERA, Appellant, v. STATE of Florida, Appellee, 995 So. 2d 191

PER CURIAM. Michael Rivera appeals an order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we remand for an evidentiary hearing on Rivera’s newly discovered evidence claim and his claims of State misconduct under the decisions of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In all other respects, we affirm the trial court’s

summary denial. PROCEDURAL HISTORY Rivera was convicted of first-degree murder and sentenced to death. The facts of the case are set forth in Rivera v. State, 561 So.2d 536, 537-38 (Fla.1990) (Rivera I). We affirmed Rivera’s conviction and sentence on appeal. Id. at 541. On October 31, 1991, Rivera filed a rule 3.850 motion to vacate judgment and sentence as well as a motion to disqualify the trial court judge. Rivera v. State, 717 So.2d 477, 479 (Fla.1998) (Rivera II). He subsequently filed two amended 3.850 motions and two additional motions to disqualify the trial judge. Id. The trial court denied all relief.

Id. We ultimately affirmed the trial court’s denial of postconviction relief on all but one issue, the

summary denial of the motion as it pertained to the penalty phase performance of counsel, and remanded for an evidentiary hearing. Id. at 487. However, when the trial court denied relief on this issue we affirmed and also denied habeas corpus relief. Rivera v. State, 859 So.2d 495, 499 (Fla.2003) (Rivera III). During the period of the remand on the issue of ineffective assistance of counsel during the penalty phase, Rivera filed another 3.850 motion on September 29, 1999.

While the trial court denied relief on September 26, 2001, regarding the penalty phase ineffective assistance of counsel claim, the trial court did not address the issues raised in this motion. On September 28, 2001, Rivera filed an amended 3.850 motion for postconviction relief.

While the appeal from the trial court’s denial of postconviction relief on the penalty phase ineffective assistance of counsel claim was pending, we authorized the trial court to consider the postconviction motions that Rivera had filed in 1999 and 2001 and directed the trial court to utilize the versions of the criminal rules in effect prior to October 1, 2001. Rivera v. State, No. SC01-2523 (Fla. July 11, 2002). On January 20, 2004, Rivera filed another 3.850 motion for postconviction relief in which he claimed

(1) Rivera was deprived of due process under Giglio when the prosecution intentionally permitted false or misleading evidence to be presented to Rivera’s jury and used to obtain a conviction;

(2) Rivera was deprived of his right to due process and other constitutional rights under Brady because the State failed to disclose evidence which was material and exculpatory in nature or presented misleading evidence, or defense counsel unreasonably failed to discover and present exculpatory evidence, or new evidence establishes manifest injustice;

(3) Rivera was denied a fair trial and postconviction proceedings due to the trial judge’s bias and predetermination of the issues; and (4) the results of DNA testing constitute newly discovered exculpatory evidence that, when considered with other evidence, establishes Rivera’s entitlement to a new trial. The trial court held a Huff hearing on July 27, 2004, and on May 10, 2005, summarily denied all postconviction relief without an evidentiary hearing on any of the claims.

Afterward, Rivera filed a motion for rehearing and also filed a supplement to the motion for rehearing alleging that the trial court should consider federal ha-beas proceedings that were conducted in another case involving Frank Zucearello, an important witness who testified against Rivera at trial. The trial court denied the motion for rehearing. This appeal follows. ANALYSIS JUDICIAL BIAS Rivera argues that the trial court erred in summarily dismissing his claim that he was denied a fair trial and postconviction proceeding due to the trial judge’s bias and predetermination of the issues. We disagree.

Rivera reasserts several issues previously decided in Rivera II. For example, Rivera again alleges the original trial judge’s predisposition to rule against him as evidenced in an

article published in the Fort Lauderdale Sun-Sentinel in 1986. Rivera again claims the trial judge considered testimony outside the record as evidenced by a letter the judge wrote to the Florida Parole Commission. Also, Rivera again alleges an inappropriate relationship among the jury foreman, the sheriff, and the trial judge. The postconviction court properly found these issues to be procedurally barred. Rivera previously raised them, and we previously denied them as legally insufficient or found them to be procedurally barred. See Rivera II, 717 So.2d at 480-82 & n. 3. In addition to rearguing several judicial bias claims, Rivera also introduces a New Times Broward-Palm Beach

article published on June 28, 2001, as new evidence demonstrative of the trial judge’s bias during his involvement in this case. The

article quoted the trial judge as saying, “I don’t remember any particular thing that proved he was guilty, but I had great confidence in the prosecutor, Kelly Hancock.” The judge also stated, “I wanted the defendant to get a fair trial at all costs, although my personal beliefs might not have been the same.” The postconviction court dismissed this claim as successive. Alternatively, the trial court concluded that the claim was legally insufficient. We conclude the trial judge’s statements in the 2001

article cannot be reasonably expected to affect or impair the fairness of Rivera’s postconviction relief proceeding. See Fla.Code Jud. Conduct, Canon 3 B(9) (“A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness.... ”). The record demonstrates that, in fact, at the time Rivera filed his 2001 postconviction motion raising the judicial bias claim, the original trial judge quoted in the press was retired and a different judge was presiding over Rivera’s postconviction proceeding. Cf.

Suarez v. Dugger, 527 So.2d 190, 191-92 (Fla.1988) (finding that statements that the trial judge had made to a newspaper warranted the judge’s disqualification from presiding over the postcon-viction proceedings). Accordingly, we find no error in the trial court’s dismissal of Rivera’s judicial bias claim. GIGLIO AND BRADY Rivera asserts that the trial court erred in summarily denying his claim that the State intentionally permitted false or misleading evidence to be presented to the jury in violation of Giglio.

Rivera’s allegations pertain to Frank Zuccarello, a jailhouse informant who testified about incriminating statements made by Rivera at the Broward County Jail. Rivera argues that Zuccarello falsely testified at trial that he had not received a deal for his testimony. Rivera claims that a recently discovered plea agreement reveals this testimony to be false.

Rivera also argues that other recently discovered documents including jail receipts, a law enforcement synopsis of a conversation with Zuccarello, and a law enforcement memorandum of an interview with Zuccarello corroborate the information in the plea offer and further establish that Zuccarello was working as a confidential informant for law enforcement at the time he gave evidence against Rivera.

Rivera also asserts that the trial court erred in summarily denying his claim that the State withheld material, favorable information in violation of Brady or that trial counsel unreasonably failed to discover and present exculpatory evidence in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Rivera argues that the State withheld or defense counsel unreasonably failed to discover Frank Zuecarel-lo’s extensive involvement with law enforcement. He bases his argument on newspaper articles from 1998 to 2001 concerning Zuccarello.

The articles discussed Zuccarello’s role in testifying against Joyce Cohen in her 1989 trial for the March 1986 slaying of her husband, Stanley Cohen. The articles suggested that Zuccarello had lied at Cohen’s trial and in another homicide investigation concerning the 1984 murder of Charles Hodek.

Rivera also bases his argument on jail receipts for Zuccarello to meet with law enforcement officers during and before the time that Zuccarello was with Rivera, memorandums on polygraph examinations of Zuccarello in other cases, a synopsis of a conversation with Zuccarello and a memorandum on an interview with Zuccarello during the time that he was incarcerated with Rivera, a plea offer to Zuccarello, and a prosecution memorandum on whether Zuccarello should receive gain time.

He also suggests that the State withheld or counsel unreasonably failed to discover that Zuc-carello lied in polygraph examinations in the Cohen case and in the Cohen and Hodek investigations and trials. Second, Rivera argues that he was denied his right to counsel because the aforementioned documents demonstrate that Zuccarello was acting as a state agent when Rivera allegedly confessed to him. Third, he argues that he was denied his right to counsel and right to remain silent when he was interrogated by law enforcement officers.

He bases this claim on newspaper articles about investigations into similar misconduct by Broward County sheriffs officers in other cases and a newspaper

article that quotes Lieutenant Rios of the Broward County Sheriffs Office as suggesting that Rivera may not have waived his right to remain silent or right to counsel on February 18, 1986. Rivera asserts that all of the aforementioned information impeaches the credibility of Zuccarello and the law enforcement officers involved in his case. He also argues that if the State had disclosed such information, Rivera would have been able to investigate law enforcement’s relationship with the other informants more closely and develop further impeachment evidence against them.

Without holding an evidentiary hearing, the trial court dismissed Rivera’s Giglio and Brady claims as successive because the information Rivera said he did not have was known or could have been known prior to the filing of his first postconviction motion. The trial court also found that even if the claims were not successive, Rivera failed to establish his entitlement to relief on the merits. We do not agree with the trial court’s conclusion that the record conclusively demonstrates these claims are procedurally barred.

The bar against successive motions can be overcome if the movant can show that the grounds asserted were not known and could not have been known to the movant at the time of the previous motion. Zeigler v. State, 632 So.2d 48, 51 (Fla.1993). Rivera alleges that he did not have the plea offer to Zuccarello or other key State documents at the time of trial or during the prior postconviction proceedings. Since no evi-dentiary hearing has been held, we must accept these allegations as true to the extent they are not refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999).

Importantly, the record does not conclusively refute Rivera’s allegations about his diligence in pursuing these claims. In the public records litigation surrounding the filing of Rivera’s initial postconviction motion, Rivera repeatedly sought information about Zuccarello. While the State alleges that it complied with Rivera’s requests, the records of the prior proceedings do not clearly establish or identify what materials were turned over to Rivera. In fact, certain materials concerning Zuccarello appear to have been withheld.

The records from the first postconviction proceedings suggest that Rivera’s efforts to discover information about Zuccarello were repeatedly avoided by the State through its limited responses to public records requests. Based on the record before us, the State has not sufficiently demonstrated that these claims are procedurally barred as successive.

Further, Rivera asserts that Zuccarello, the State’s star witness at trial, gave testimony at Rivera’s trial regarding his connection with law enforcement agencies as well as his motivation for testifying which sharply contrasts with the portrait of Zuc-carello that has been alleged in the post-conviction pleadings. Zuccarello testified at Rivera’s trial that he notified law enforcement officers about statements that Rivera made to him simply because “I [thought] what he did was a sick act.” Zuccarello repeatedly denied being promised anything for his testimony and repeatedly denied that any deal had been made.

Broward County sheriffs officers corroborated this testimony; Detectives Philip Amabile and Richard Scheff both testified that they never promised Zuccar-ello anything. While Zuccarello testified that he was convicted of multiple felonies in two separate cases and that he had a plea agreement, he never testified about the specific terms, conditions, or consideration for his plea agreement. Furthermore, Zuccarello never testified that he was cooperating in the investigations of home invasion robberies or other homicides.

In sum, Rivera asserts that Zuccar-ello’s testimony suggested that he was simply acting as a good citizen who was appalled at Rivera’s conduct, and he was not connected with law enforcement in any way. Zuccarello was impeached at trial only about his criminal record, and was not impeached about his connection with law enforcement or his personal incentive and gain for testifying against Rivera. In contrast to this trial testimony, Rivera’s postconviction filings assert that Zuc-carello had an extensive involvement with law enforcement agencies at the time of Rivera’s trial.

The documents on which Rivera relies to support his postconviction claims reveal that Zuccarello was communicating with law enforcement officers about various criminal investigations before, during, and after his incarceration with Rivera at the Broward County Jail. He was in contact with law enforcement officers and prosecutors concerning investigations in Dade and Broward counties about multiple home invasion robberies and at least two other homicides.

Moreover, he allegedly received a plea offer requiring him “to testify at all proceedings in which he is subpoenaed” and providing that “[a]t the time of sentencing [of Zuc-carello] ... the State will bring forward all law enforcement personnel familiar with the cases and the efforts of the defendant for the Court’s consideration in sentencing.” In another of the filings Zuccarello is described as a police confidential informant. We cannot agree with the trial court’s conclusion that these claims are sufficiently rebutted by the record so as to make an evidentiary hearing unnecessary.

Under our postconviction rules, we must accept Rivera’s claims as true and direct an evidentiary hearing on their validity unless the record conclusively demonstrates that Rivera is not entitled to relief. See Fla. R.Crim. P. 3.850(d); see also Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) (“Under rule 8.850, a postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief.”).

Here, the record does not conclusively refute Rivera’s extensive factual allegations that the State knowingly presented false or misleading testimony in violation of Giglio and withheld favorable evidence in violation of Brady While there may be valid explanations to refute these allegations, the State has not demonstrated that those explanations are apparent on the face of the record. Accordingly, we find that Rivera’s allegations are sufficient to require an evidentiary hearing with regard to whether there were Giglio or Brady violations.

NEWLY DISCOVERED DNA EVIDENCE Rivera further asserts that the trial court erred in summarily denying, without a hearing, his claim that the results of recent DNA testing constitute important newly discovered physical evidence in his favor that, when considered with other evidence, establish his entitlement to a new trial. Rivera alleges that recent DNA testing of hair which was introduced into evidence at trial conclusively establishes that the hair was not from the victim.

Rivera also asserts that DNA testing of hairs that were found with the victim’s body and were discussed in an affidavit in support of a search warrant also indicates that Rivera was definitely not the source of most of the hairs and probably not the source of others. Without holding an evi-dentiary hearing, the trial court denied this claim, finding that the DNA evidence would not exonerate Rivera. We conclude that the trial court erred in failing to hold an evidentiary hearing on this claim.

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known to the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla. 1998).

At trial, the State presented evidence to support the theory that the crime had occurred in a van that Rivera had borrowed from his friend, Mark Peters. In particular, the State presented the testimony of Howard Seiden, an expert in hair identification and comparison. Seiden testified that he received hair samples collected from the van. He testified that “the hair from the bed of the van could be concluded as being a source from the victim.” In opening and closing statements, the State then referred to the hair found in the van as being consistent with the victim’s hair.

In his 2004 postconviction motion, Rivera alleged that the results of DNA testing of hairs from the van and of hairs found on the victim’s body constitute newly discovered evidence favorable to his claim of innocence. Rivera claims that DNA testing establishes that the hair found in Mark Peters’ van did not come from the victim and that the hairs found with the victim’s body probably did not come from Rivera. Citing the lack of physical evidence connecting him to the crime, Rivera contends that the trial court should have held an evidentiary hearing. We agree.

We conclude that this evidence, when viewed in conjunction with Rivera’s Giglio and Brady claims as well as Mark Peters’ testimony that he, and not Rivera, was in possession of the van at the time of the crime, is sufficient to warrant an evidentiary hearing on whether it is of such nature that it would probably produce an acquittal on retrial. SUPPLEMENT TO MOTION FOR REHEARING Rivera asserts that the trial court should have granted him an opportunity to investigate based on allegations in his supplement to his motion for rehearing.

Rivera argues that the trial court denied him due process when it foreclosed his opportunity to obtain transcripts from a federal evidentiary hearing concerning Frank Zuecarello’s testimony in another case, the 1986 murder of Stanley Cohen, and prevented him from presenting claims arising from such information. We disagree. Rivera was not seeking to supplement a motion that had not yet been ruled upon by the trial court; rather, the trial court had already denied postconviction relief, and the only issue pending was the motion for rehearing. Cf. Gaskin v.

State, 737 So.2d 509, 518 (Fla.1999) (holding that it was error for the trial court to not consider the merits of new allegations in a timely filed amended postconviction motion), receded from on other grounds by Nelson v. State, 875 So.2d 579, 583 (Fla. 2004); McConn v. State, 708 So.2d 308, 310 (Fla. 2d DCA 1998) (stating that when a defendant is requesting leave to supplement a postconviction motion by adding more information on an issue initially raised in a first motion for postconviction relief, a court should allow such a supplement).

Moreover, the grant or denial of a motion for rehearing is a matter within the discretion of the trial court. Dries v. State, 899 So.2d 489, 489 (Fla. 2d DCA 2005); cf. Huff v. State, 762 So.2d 476, 481 (Fla.2000) (stating that the standard of review for a trial court’s determination regarding a motion to amend a postconviction motion is whether there was an abuse of discretion).

Nevertheless, our affirmance on this issue is without prejudice to Rivera to submit evidence of the federal proceedings involving Zuccarello at the postconviction evidentiary hearing on remand to the extent those proceedings can be demonstrated to be relevant to the issues raised. CONCLUSION In light of the above analysis, we affirm in part and reverse in part the trial court’s

summary denial of Rivera’s motion for postconviction relief and remand this case for the trial court to conduct an evidentia-ry hearing as outlined above. It is so ordered. LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur. WELLS, J., concurs in part and dissents in part with an opinion, in which CANTERO and BELL, JJ., concur. . Huff v. State, 622 So.2d 982 (Fla. 1993). .

Although Rivera’s motion was initially filed under rule 3.850, our current rule 3.851, governing capital postconviction motions, articulates this Court’s long-time policy establishing a presumption in favor of holding evidentiary hearings. Even though evidentiary hearings on claims raised in successive rule 3.851 motions are not automatically required, we have encouraged courts to liberally allow such hearings on timely raised claims that are factually based and commonly require a hearing. See Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852, & 3.993 & Fla.

Rule of Judicial Admin. 2.050, 797 So.2d 1213, 1219 (Fla.2001). . A Giglio claim alleges that a prosecutor knowingly presented false testimony against the defendant. See Giglio, 405 U.S. at 153—54, 92 S.Ct. 763. "To establish a Giglio violation, it must be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla.2003). .Brady requires the State to 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, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000). . Mark Peters did not testify at trial, but he testified at a 1995 evidentiary hearing held on Rivera’s first postconviction motion.

In that motion, Rivera asserted that the jury never heard the evidence of alibi witnesses who allegedly stated that Rivera was with them at the time of the murder. Rivera II, 717 So.2d at 482. Rivera claimed that Mark Peters presented unrebutted testimony at the evidentia-ry hearing that Rivera picked him up between 6 and 6:30 p.m. and remained with him for the next thirty to thirty-five minutes. Id. Rivera maintained that Peters’ testimony provided him with an alibi. Id.

We concluded that Peters’ testimony would not have provided Rivera with an alibi for the crucial time after 7 p.m., the approximate time after which the victim was murdered. Id. at 483. Accordingly, we affirmed the trial court’s denial of relief based on Rivera’s claim of ineffective assistance of counsel for failure to present Peters as an alibi witness. Id. However, we also noted that Peters testified at the evidentiary hearing "that he was on his way home from work sometime between 6:15 and 7 p.m., after already dropping Rivera off at his house.” Id. at 482. .

In his 1999 and 2001 postconviction motions as well as a motion for DNA testing, Rivera sought DNA testing of pantyhose found in the area where the victim's body was found, the victim's clothing, the hair from Mark Peters’ van, and the hair found with the victim’s body. While the appeal from the trial court's 2001 denial of postconviction relief on the penalty phase ineffective assistance of counsel claim was pending, we granted jurisdiction to the trial court to conduct DNA testing pursuant to

section 925.11, Florida Statutes (2001), or Florida Rule of Criminal Procedure 3.853. Rivera v. State, No. SC01-2523 (Fla. Mar.12, 2002). The parties filed a stipulation for an order to release evidence for DNA testing, and the trial court ordered the release of that evidence for DNA testing and allowed Broward Sheriff’s Office Crime Laboratory to conduct the testing.