Jason Andrew Simpson v. State of Florida & Jason Andrew Simpson v. Ricky D. Dixon, etc. ( 2022 )

Supreme Court of Florida
____________
No. SC18-1238
____________
JASON ANDREW SIMPSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC19-700
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JASON ANDREW SIMPSON,
Petitioner,
vs.
RICKY D. DIXON, etc.,
Respondent.
January 13, 2022
PER CURIAM.
Jason Andrew Simpson, a prisoner under sentence of death,
appeals the denial of numerous guilt-phase claims raised in his
motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas
corpus.1 Because we agree with Simpson that the State committed
a Brady 2 violation by failing to disclose that one of the witnesses
was a confidential informant for the State, we reverse the denial of
postconviction relief as to the guilt phase, vacate Simpson’s
convictions for first-degree murder, and remand to the trial court
for a new trial.
I. BACKGROUND
Simpson was convicted in 2007 of the 1999 first-degree
murders of “Big Archie” Crook, 3 a drug dealer against whom
Simpson was working as a confidential informant for the
Jacksonville Sheriff’s Office (JSO), and Crook’s pregnant girlfriend,
Kimberli Kimbler. In the years leading up to the murders of Big
Archie and Kimbler, Big Archie and his son, “Little Archie,” were
heavily involved in the drug trade in Jacksonville. Big Archie
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. To distinguish between the victim, Archie Howard Crook,
and his son, a witness, Archie Clyde Crook, the victim will be
referred to as “Big Archie” and his son will be referred to as “Little
Archie,” a nickname by which he is known.
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supplied drugs that Little Archie would sell. Simpson was one of
their associates in the drug trade, as was George Michael Durrance.
On the morning of July 16, 1999, Big Archie’s father discovered the
bodies of Big Archie and Kimbler in the master bedroom of the
home they shared. They had been hacked to death with an axe.
Detectives with the JSO responded to the scene. There were
no visible signs of forced entry to the home, and nothing was
disturbed inside other than the master bedroom. Detectives
learned that Little Archie and his friend, Shawn Smallwood, had
visited Big Archie’s house between 10 and 11 p.m. the night of July
15, 1999. They smoked marijuana, and Big Archie ate strawberry
shortcake. The medical examiner estimated that, judging by the
state of the food in Big Archie’s stomach, he died within an hour
after he ate. Little Archie testified that when he left Big Archie’s
home that night, he did not lock the door behind him, and Big
Archie did not get up and lock it after him. Both Little Archie and
Smallwood denied any involvement in the murders.
During their search of the property behind Big Archie’s house,
detectives located an axe believed to be the murder weapon, a pair
of socks, and two pieces of torn material on a barbed wire fence.
-3-
Four days later, on July 20, 1999, a pile of clothing was found
behind an air conditioning unit at a church adjacent to Big Archie’s
house, including a baseball cap, a black sweatshirt, black
sweatpants, and a pair of tennis shoes. The torn pieces of material
found on the barbed wire fence matched the color and appearance
of the sweatshirt and sweatpants located on the church property.
Detectives also recovered a pager located next to the victims’ bed.
The first number on the pager belonged to Simpson’s mother, with
whom Simpson was living at the time.
Evidence collected at the scene was processed by Florida
Department of Law Enforcement (FDLE) and FBI analysts. Two
human head hairs were recovered from Kimbler’s right hand. DNA
analysis excluded Kimbler, Little Archie, Simpson, Smallwood, and
Durrance as sources of the first hair but not Big Archie. As to the
second hair, Little Archie, Simpson, Smallwood, and Durrance were
excluded as sources but not Kimbler. DNA analysis of the
scrapings from Kimbler’s fingernails excluded Simpson, Smallwood,
and Durrance as potential donors of the material under Kimbler’s
fingernails, but not Little Archie or Big Archie.
-4-
DNA from five bloodstains on the sweatpants was tested.
Three of the stains were mixtures, the primary profile of which
matched Kimbler’s DNA profile, and two from which Simpson could
not be excluded as a minor contributor. The other two stains
contained a single DNA profile matching that of Big Archie. The
primary contributor of the DNA profile found on the waistband of
the sweatpants was Simpson. Assuming the DNA profile on the
waistband was a mixture of two DNA profiles, Big Archie, Little
Archie, Kimbler, and Smallwood were excluded as minor
contributors. Simpson was also the primary contributor of the DNA
profile found on the leg cuffs of the sweatpants. The profile of the
minor contributor to the leg cuffs was unable to be determined.
Although there was no blood on the sweatshirt, Simpson was the
primary contributor of the DNA profile found on the neck. Big
Archie and Smallwood were excluded as minor contributors, but not
Little Archie. A white, crusty stain on the left shoulder of the
sweatshirt contained a single DNA profile matching that of
Simpson.
Three hairs recovered from the packaging containing the
sweatpants, sweatshirt, and baseball cap were subjected to DNA
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testing. One hair contained no DNA. The other two hairs matched
each other, and a partial DNA profile of those hairs matched
Simpson’s DNA profile. Big Archie, Little Archie, Kimbler, and
Smallwood were excluded as the source of the two hairs. A DNA
profile could not be obtained from the baseball cap or socks.
The State presented testimony from an expert who opined that
the major profile of DNA on the clothing would be the DNA from the
person who had worn the clothing most recently. But on cross-
examination, the expert agreed that if one person wore clothing over
an extended period of time and it was then put on by a second
individual for a short period of time, he would not expect the major
profile to come from the most recent wearer.
Prior to the murders, JSO Detective Robert Hinson met with
Simpson on June 10, 1999, shortly after Simpson’s release from jail
on grand theft charges, because Simpson was willing to assist JSO
with investigation of criminal activity. Detective Hinson was
investigating a group of individuals, including Little Archie, Big
Archie, and Durrance, concerning another homicide. On June 21,
1999, Simpson contacted Detective Hinson to tell him that he had
been in contact with Little Archie, who wanted Simpson to “hit a
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lick,” which Simpson understood in that instance to mean that
Little Archie was going to steal a car. The next time Detective
Hinson spoke with Simpson was on July 16, 1999, the day Big
Archie and Kimbler’s bodies were discovered. When Detective
Hinson heard about the murders that morning, he contacted
Simpson to gather information. Detective Hinson met Simpson at
Simpson’s mother’s house, where Simpson was staying. When
Detective Hinson arrived at the house, he noticed that Simpson had
a “large gash” on his finger, which Simpson claimed he injured
when hitting the electrical panel in his mother’s garage. When
Detective Hinson told him about the murders, Simpson expressed
that he was not sorry about Big Archie’s death. Simpson told
Detective Hinson that Big Archie and Little Archie had been putting
the word out on the street that Simpson was a snitch and was
cooperating with the police. Simpson said the last time he spoke
with Big Archie was a couple of weeks prior when they went
somewhere together to buy drugs. Simpson told Detective Hinson
that Little Archie had stolen fifty pounds of marijuana from Big
Archie. After speaking with Simpson, Detective Hinson notified the
homicide detectives working this case that they should look further
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at Simpson. Detective Hinson also told the homicide detectives
what Simpson said about Little Archie stealing his father’s
marijuana. A few days later, Detective Hinson obtained a voluntary
DNA sample from Simpson.
From July 1999 to fall 2001, detectives made little progress in
the investigation of the murders. Then, in fall 2001, while awaiting
trial on a charge of conspiracy to traffic in cocaine, Durrance
notified JSO and the State Attorney’s Office that Simpson had
confessed to him in 1999 that he murdered Big Archie and Kimbler.
Durrance told detectives that in the days before the murders,
Simpson came to his house and told him that he was going to rob
Big Archie of $10,000. Simpson also told Durrance that Big Archie
offered him money to kill Durrance, but Simpson laughed it off and
told Durrance he would never kill him. A few days after the
murders, Simpson asked Durrance to front him some drugs or loan
him some money. Assuming Simpson had robbed Big Archie as he
said he intended to do, Durrance told him that he should already
have money. Simpson replied, “You know, I’m the one who killed
him, you know I did.”
-8-
Armed with Durrance’s allegation that Simpson confessed,
Detective Hinson called Simpson to come to the police station to
speak with detectives. When the detectives told Simpson that they
needed his assistance with the “Crook/Kimbler” murders, Simpson
initially said that he did not know them. Once the detectives said,
“Archie Crook,” Simpson stated that he knew him but looked at his
watch and said, “It’s time for me to go, I’ve got to get to work.”
Simpson then said, “You cannot hold me here, I do not scare easy.”
A year later, in fall 2002, detectives learned that DNA
matching Simpson’s was found on the clothing left on the church
property. Simpson was brought in for an interview. When one of
the detectives told Simpson that they wanted to talk to him about
the “Crook and Kimbler” murders, Simpson replied that he did not
know them. When asked whether he knew “Big Archie,” Simpson
said he knew him “a little.” Simpson told the detectives that he had
information on the case and wanted to share it, but he wanted a
deal in a then-pending, unrelated case. When the detectives told
Simpson that they thought he committed the murders because they
had his DNA at the crime scene, Simpson denied involvement and
said that was impossible. When the detectives told Simpson that
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they were not in a position to offer him a deal, the interview
concluded.
Simpson was interviewed again the next day. Detectives
advised Simpson that other people were pointing fingers at him,
including Durrance. Simpson told the detectives that there was no
loyalty between him and Durrance because he was the person who
had initially provided the information to police that led to
Durrance’s arrest and ultimate conviction in the trafficking case,
and he suspected Durrance was aware of that fact. Detectives
showed Simpson pictures of the church and the clothes worn
during the murders and told him that they had information that the
clothes belonged to Simpson. Simpson was then arrested for the
murders of Big Archie and Kimbler.
At trial, the defense’s theory of the case was that Little Archie,
Smallwood, and Durrance were all involved in the homicides. The
defense argued during closing argument that Little Archie murdered
Big Archie and Kimbler because he was jealous of Kimbler’s unborn
baby and perhaps because there were drugs and a lot of money
involved. The defense further argued that Durrance lied about
Simpson’s confession as retribution for Simpson’s cooperation with
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law enforcement in the case against Durrance, and Durrance also
had a motive to kill Big Archie because Big Archie had owed him
money and wanted Durrance dead.
Little Archie admitted during trial that he was angry and upset
that Kimbler was carrying his father’s child. Little Archie had
hoped that his father and mother would get back together, and he
was upset that his father was living with Kimbler. Contrary to
Simpson’s trial testimony, Little Archie denied having gone over to
Simpson’s home in the days prior to the murder and denied having
ever borrowed any clothing from Simpson. Little Archie testified
that Simpson was “a little bigger” than he was but admitted that he
could wear sweatpants and a sweatshirt that were bigger than his
normal size.
Little Archie admitted that he “might have said” that Kimbler’s
baby would never see the light of day. He also admitted that he
“could have said” that he would kill Big Archie, Kimbler, and the
baby. Brenda Crook Bennett, Big Archie’s sister and Little Archie’s
aunt, testified that she advised Detective Williams that there was a
time when Little Archie said, in front of Big Archie, that he would
kill Big Archie, Kimbler, and the baby if they ever had a baby.
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Several other witnesses reported having heard Little Archie say that
Kimbler’s baby would never see the light of day.
When Detective Williams interviewed Little Archie the day the
bodies were found, Little Archie was aware of the positions in which
the bodies were found, which he said that he learned from his
grandfather, although his grandfather denied telling him. During
the interview, Little Archie seemed nervous and upset, and “jumped
around somewhat on the explanations to the questions” police had
asked. Little Archie told police that he had taken some medication
or had forgotten to take some medication.
Simpson took the stand at his trial. Simpson testified that he
was cooperating with law enforcement in 1999. After he got out of
jail in 1999 in the grand theft case, Simpson rented a room in a
trailer. According to Simpson, one day when he was painting his
mom’s house, Little Archie came over to see him. Little Archie told
Simpson that he heard Simpson was working with the police but
then told Simpson he was joking. Simpson asked Little Archie to
drive him back to his trailer. During the ride to the trailer, Little
Archie asked Simpson if he could borrow some clothes because he
wanted to “hit a lick,” meaning he was planning to steal a car.
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Little Archie said he needed dark clothes because he did not have
anywhere he was staying. When they got to the trailer, Simpson
told Little Archie that he could pick some clothes out from a pile of
clothes on the floor while Simpson took a shower. When Simpson
got out of the shower, Little Archie was gone, but the top drawer to
Simpson’s dresser was open, and Lieutenant Tom Waugh’s (one of
the officers to whom Simpson was providing information) business
card, which Simpson kept inside his dresser, was on the top of the
dresser. Simpson immediately called Lieutenant Waugh to tell him
about his conversation with Little Archie and then called Detective
Hinson to tell him what Little Archie planned to do. Shortly after
that, Simpson moved out of the trailer and in with his mother. At
the time of the murders in July 1999, Simpson was living at his
mother’s house.
Simpson testified that on the morning of July 16, 1999, the
power went out at his mother’s house. He scratched his finger
trying to turn the power back on at the breaker box in his mother’s
garage. Simpson could not recall if he called the Jacksonville
Electric Authority (JEA) that morning or not but recalled that the
power came back on quickly, and he went back to sleep. Sometime
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later, Simpson’s mother woke him up, tossed him the phone, and
told him Detective Hinson had called. When Simpson met with
Detective Hinson later that day, he did not bother to put a bandage
on the scratch on his finger. When Detective Hinson told him that
Big Archie and Kimbler were dead, it took a while for him to process
the news.
Simpson testified that he did not, and had no reason to,
murder Big Archie or Kimbler. When asked about the clothing with
the victims’ blood and his DNA on it, Simpson stated that Little
Archie had taken that clothing from his trailer. Simpson identified
the articles of clothing in court as belonging to him. With respect to
the initial interview with the detectives in 2001, Simpson stated
that the detectives were rude and had left him in the room by
himself for a while. When Simpson was leaving the police station
that day, he told the detectives that he had to leave to go to work.
Simpson denied that he told detectives he did not know Big Archie
and Kimbler. Simpson stated that he misunderstood and thought
the detective asked him if he knew “Crews.” Simpson was
confused, but when the detective then mentioned “Archie and Kim,”
Simpson said of course he knew them. He told detectives that he
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did not scare easily and was not afraid because one detective was
yelling in his face and trying to scare him. Regarding the second
interview in fall 2002, Simpson denied that he said that he did not
know who Crook and Kimbler were. Simpson denied ever having
been to Durrance’s house in 1999 and denied ever telling Durrance
that he killed Big Archie and Kimbler.
Simpson testified that he knew he was putting himself in
danger by informing on Durrance. He also testified that Big Archie
told him that he had heard from Little Archie that Simpson was
working for the police. Simpson said he “might have” or “very
possibl[y]” paged Big Archie the day before the murders because it
would not have been out of the ordinary to do so.
An electric reliability specialist with the JEA confirmed that
there was a three-minute power outage at Simpson’s mother’s
house at 7:46 a.m. on July 16, 1999. JEA also received a call that
morning from a caller identified as “Mr. Simpson,” approximately
ten minutes after the outage.
Simpson also presented the testimony of Terry Thompson,
Little Archie’s cousin. Thompson testified that he saw Little Archie
and Smallwood at the RaceTrac gas station about three or four
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miles from Big Archie’s house at around midnight on July 16, 1999.
After he saw Little Archie and Smallwood, Thompson went to Big
Archie’s house to see if Big Archie was there, but there was no
answer. Dana Guinn, the father of Thompson’s girlfriend, testified
that he was with his daughter and Thompson in the car at the
RaceTrac on July 15, 1999, at 11:30 p.m. When Little Archie and
Smallwood first pulled into the RaceTrac, Guinn thought they may
have been a little jittery, but they were kidding around with
Thompson, who got out of the car to talk to them. Once they left
the gas station, Guinn, Thompson, and Guinn’s daughter went
directly to Big Archie’s house. Thompson went around the back to
tell Big Archie that they wanted to hook up a telephone line, but no
one came to the door.
The jury found Simpson guilty of both murders, and the trial
court ultimately imposed a sentence of death for each murder.
Simpson v. State, 3 So. 3d 1135, 1138-39 (Fla. 2009). Simpson
appealed, and this Court affirmed the convictions and sentences in
2009. Id. at 1149. Simpson subsequently filed a motion for
postconviction relief under Florida Rule of Criminal Procedure
3.851 and several amendments thereto. The trial court held a
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twelve-day evidentiary hearing, and thirty-seven witnesses testified.
Following the evidentiary hearing, the trial court entered an order
on July 6, 2018, denying in part Simpson’s motion and granting in
limited part Simpson’s motion as to the penalty phase under Hurst
v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v.
Poole, 297 So. 3d 487 (Fla. 2020), cert. denied, 141 S. Ct. 1051(2021).
II. ANALYSIS
Simpson now appeals the denial of relief as to the guilt phase
raising numerous claims4 and has petitioned this Court for a writ of
4. The claims raised by Simpson are (1) trial counsel was
ineffective for failing to object to improper arguments during the
State’s closing arguments; (2) the State violated Giglio v. United
States, 405 U.S. 150 (1972), by knowingly misrepresenting
Simpson’s release date, and trial counsel was ineffective in failing to
respond with readily available evidence that would have shown the
State’s position was false; (3) the State committed a Giglio violation
by knowingly misrepresenting Kimbler’s injuries in closing
argument; (4) newly discovered evidence in the form of Durrance’s
recantation; (5) the State violated Giglio and Brady by knowing and
concealing evidence tending to show that Durrance’s testimony was
false; (6) trial counsel was ineffective in failing to discover and use
the impeachment evidence referenced in claim 5; (7) the State
violated Giglio by knowing that its alternative explanation for how
Simpson could have entered the house was false, and trial counsel
was ineffective for failing to show that it was false; (8) the State
violated Brady by failing to disclose that Little Archie was a
confidential informant against Durrance in another case; (9) the
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habeas corpus. Of the numerous Brady claims presented in this
appeal, we conclude that one claim is dispositive—the State’s failure
to disclose that prior to Simpson’s trial, Little Archie had served as
a confidential informant against Durrance in another case.
State violated Simpson’s due process rights by failing to preserve
the evidence in this case for future DNA testing; (10) the
postconviction DNA testing warrants a new trial; (11) trial counsel
was ineffective for failing to independently test the DNA evidence;
(12) trial counsel was ineffective for failing to effectively consult with
the court-appointed DNA expert; (13) trial counsel was ineffective
for failing to find and use Shannon Elliot, who allegedly had
information inculpating Little Archie; (14) trial counsel was
ineffective for failing to interview and prepare Misty McNeish to
testify at trial so that she would inculpate Little Archie; (15) trial
counsel was ineffective for failing to show that Little Archie knew
the positions of the bodies before anyone could have told him;
(16) trial counsel was ineffective for failing to discover and present
evidence that Little Archie lied about his whereabouts the night of
the murders; (17) trial counsel was ineffective for presenting an
incoherent closing argument; (18) newly discovered evidence in the
form of testimony from Little Archie and Terry Thompson that
tended to corroborate Simpson’s defense that Little Archie had
taken the clothes from Simpson’s trailer a few weeks before the
murders; (19) the State committed Brady and Giglio violations by
misleading the jury into believing that the last number to page Big
Archie belonged to Simpson’s mother; (20) the State violated Brady
or Giglio or trial counsel was ineffective related to Detective Hinson’s
testimony; (21) trial counsel was ineffective for failing to use
available work records to corroborate Simpson’s explanation that he
had to leave the interview with detectives because he was late to
work, and the State violated Brady by concealing the fact that
Simpson told the detectives this before they mentioned the
murders; and (22) cumulative prejudice warrants relief.
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Accordingly, we focus our analysis on this claim and do not address
the remaining claims.
“Brady requires the State to disclose material information
within its possession or control that is favorable to the defense.”
Davis v. State, 136 So. 3d 1169, 1184 (Fla. 2014). To establish a
Brady violation, a defendant must demonstrate that “(1) the
evidence was either exculpatory or impeaching; (2) the evidence was
willfully or inadvertently suppressed by the State; and (3) because
the evidence was material, the defendant was prejudiced.” Id.; see
also Brady, 373 U.S. at 87 (“[T]he 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,
irrespective of the good faith or bad faith of the prosecution.”).
“Under Brady, the undisclosed evidence is material ‘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.’ ” Guzman v. State, 868 So. 2d 498, 506
(Fla. 2003) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). “The determination of whether a Brady violation has
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occurred is subject to independent appellate review.” Davis v. State,
928 So. 2d 1089, 1113 (Fla. 2005).
Simpson argues that the State violated Brady by failing to
disclose that prior to Simpson’s trial, Little Archie had served as a
confidential informant against Durrance. At the evidentiary
hearing, FDLE Agent Mark Brutnell testified that he was involved in
a multi-agency, multi-jurisdiction narcotics investigation in 1999-
2000 that resulted in the arrest and prosecution of Durrance for
drug trafficking. He and then-JSO Officer Bates5 authored an
application for a wiretap on Durrance’s phone. Little Archie was
“Source Number Five” in the wiretap application, which detailed
Little Archie’s account that Durrance had threatened to harm Big
Archie after the cocaine Durrance had fronted him was stolen and
Big Archie could not repay Durrance, as well as Durrance’s ruse of
selling them fake cocaine to get his money back. Little Archie was
not paid for the information, but he was in jail at the time and
hoping to get consideration regarding his own then-pending federal
5. At the time of the evidentiary hearing, Bates was an FDLE
Agent.
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counterfeiting charges. Little Archie also gave an interview from
which FDLE gleaned information. Agent Brutnell did not indicate
that Little Archie received any benefit from his interview with FDLE.
Agent Bates also testified that Little Archie was a source used in the
wiretap application for Durrance and that he was not paid for his
information. 6 He did not recall if Little Archie was attempting to get
favorable treatment or leniency on some criminal charges against
him.
There was testimony at the evidentiary hearing that Little
Archie told an assistant state attorney or one of the investigators
that Durrance had killed a drug dealer in West Palm Beach. When
asked about information he had provided to the State at the
evidentiary hearing, Little Archie testified that he told JSO he
thought Durrance had killed Big Archie in retaliation for the drug
disputes. He told Assistant State Attorney Mark Caliel that
Durrance had admitted to killing the dealer in West Palm Beach
who had sold Durrance the fake cocaine. After Little Archie testified
as a State’s witness against Simpson, the State brought Little
6. In listing Little Archie as a witness against Durrance in the
trafficking case, the State listed his address as “c/o Chuck Bates.”
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Archie down to West Palm Beach where he testified against
Durrance.
The trial court denied this claim, finding no evidence that
Little Archie acted as a paid, confidential informant in Durrance’s
trafficking case and that there was no indication that these
agencies made any deals with Little Archie for his cooperation. As a
result, the trial court did not reach the issue of prejudice. After
careful review of the entire record in this case, we do not agree with
the conclusion of the trial court that there was no Brady violation,
and we conclude that the Brady violation undermines our
confidence in the outcome of Simpson’s trial.
Here, the first two prongs of Brady are satisfied—this was
impeachment evidence, and the State does not dispute that it
should have but failed to turn over this information. As to the
materiality prong, the Court’s opinion in Gorham v. State, 597
So. 2d 782 (Fla. 1992), in which it was faced with a similar
scenario, is instructive. In Gorham, the Court wrote:
The State contends that Johnson’s informant status
in other cases cannot be deemed Brady material in the
instant case and that there is no evidence that Johnson
was a confidential informant in this case. We do not
agree with the State’s contentions. The Florida Evidence
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Code provides that the credibility of a witness may be
attacked by showing that the witness is biased.
§ 90.608(1)(b), Fla. Stat. (1981). A witness’ relationship
to a party, personal obligations to a party, or employment
by a party all have been recognized as proper questions
on cross-examination going to the interest and bias of the
witness. Charles W. Ehrhardt, Florida Evidence § 608.4
(2d ed. 1984).
The State admits that Johnson was a confidential
police informant on other occasions. Even though the
police did not reveal Johnson’s informant status to the
state attorney who prosecuted Gorham’s case, the state
attorney is charged with constructive knowledge and
possession of evidence withheld by other state agents,
such as law enforcement officers. State v. Coney, 294
So. 2d 82 (Fla. 1973); see also State v. Del Gaudio, 445
So. 2d 605 (Fla. 3d DCA), review denied, 453 So. 2d 45(Fla. 1984). At the evidentiary hearing on Gorham’s
3.850 motion, the state attorney stated that had he
known about Johnson’s informant status he would
“certainly” have given that information to the defense
because it “comes within the Brady definition.” Receipts
from the Pompano Police Department show that Johnson
received substantial payments for confidential
information relating to other cases. A receipt dated June
9, 1982, also indicates that while Johnson was
incarcerated during the period between Gorham’s two
trials she received ten dollars related to this case from
the Pompano police. This information was never
disclosed to Gorham, and, thus, the defense was unable
to attack Johnson’s credibility by showing that she was
biased.
In evaluating Brady claims, courts must determine
whether the withheld evidence is “material,” rather than
just favorable to the accused. 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.” United States v.
Bagley, 473 U.S. 667, 682 (1985). The standard for
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determining “reasonable probability” is “a probability
sufficient to undermine confidence in the outcome.” Id.Given this trial’s circumstantial nature, Johnson’s role as
the State’s key witness, and the defense’s inability to
impeach Johnson based upon the undisclosed evidence,
we find that such a reasonable probability exists in this
case.
Id. at 784-85 (footnote omitted).
Here, Little Archie was confidential “Source Number Five” in
the wiretap application that led to the arrest and prosecution of
Durrance for drug trafficking. As in Gorham, because Little Archie
had been an informant in another case, he had a “relationship to a
party” that was a potential source of bias requiring disclosure. And
disclosure of a witness’ informant status is required even where
there is no evidence that the witness was given favorable treatment
in exchange for the information. See Hendrix v. State, 908 So. 2d
412, 424 (Fla. 2005) (concluding that the State’s failure to disclose
that one of the witnesses was a confidential informant for the State
“was impeachment evidence that should have been disclosed” where
the record refuted the claim that the witness was treated favorably
or provided anything in exchange for the testimony).
The State argues that even if this evidence could have had
impeachment value, it was not material as Little Archie was
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impeached at trial with his own motive to kill his father. “However,
the fact that a witness is impeached on other matters does not
necessarily render the additional impeachment cumulative.”
Cardona v. State, 826 So. 2d 968, 974 (Fla. 2002); see also United
States v. Rivera Pedin, 861 F.2d 1522, 1530 (11th Cir. 1988) (“We
acknowledge that Ream’s credibility had been eroded due to the
testimony the defense elicited from him on cross-examination. The
disclosure of Ream’s conversation with Miller, however, would not
have been merely repetitious, reinforcing a fact that the jury already
knew; instead, ‘the truth would have introduced a new source of
potential bias.’ ” (quoting Brown v. Wainwright, 785 F.2d 1457,
1466 (11th Cir. 1986))). Here, the jury did not hear testimony
regarding Little Archie acting as a confidential informant; therefore,
this would have introduced a new source of potential bias.
With regard to the significance of this evidence, we note that
both Durrance and Little Archie were crucial witnesses for the
State. Simpson was convicted primarily based on Durrance’s
testimony at trial that Simpson confessed to him and
circumstantial evidence of Simpson’s DNA on clothes found a few
days after the murders on the property adjoining the home of Big
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Archie and Kimbler. At trial, Simpson did not deny that the clothes
found belonged to him but provided an explanation as to how his
clothes ended up near the murder scene—Little Archie took them
from his house. And the State’s expert testified, on both direct and
cross-examination, that he could not exclude Little Archie from
some DNA mixtures present on the clothes. Contrary to Simpson’s
trial testimony, Little Archie denied having gone over to Simpson’s
trailer in the days prior to the murder and denied having ever
borrowed any clothing from Simpson. 7 Accordingly, evidence that
Little Archie served as a confidential informant against Durrance
would have allowed the defense to impeach Little Archie on a new
source of bias (one not revealed to the jury at trial). See Napue v.
Illinois, 360 U.S. 264, 269 (1959) (“The jury’s estimate of the
truthfulness and reliability of a given witness may well be
determinative of guilt or innocence, and it is upon such subtle
factors as the possible interest of the witness in testifying falsely
that a defendant’s life or liberty may depend.”).
7. Little Archie’s testimony at the evidentiary hearing
corroborated Simpson’s testimony at trial regarding having been to
Simpson’s trailer, borrowing clothes, and finding the detective’s
business card.
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Little Archie also testified at the evidentiary hearing that he
told JSO that he thought Durrance killed Big Archie in retaliation
for the drug disputes and that he told Caliel that Durrance
admitted to killing the drug dealer in West Palm Beach who sold
Durrance fake cocaine. Simpson argues that with this evidence,
the defense could have challenged why the State quickly dismissed
Little Archie as a suspect because he was a valuable source of
information. The relationship between Simpson, Little Archie, and
Durrance was of critical importance in this case, and the
information Little Archie provided to law enforcement pertaining to
Durrance casts a different light on this relationship. At trial, the
defense’s overarching theory of the case was that Little Archie,
Smallwood, and Durrance were all involved in the homicides.
Simpson denied that he killed Big Archie and Kimbler, denied ever
having been to Durrance’s house in 1999, denied ever telling
Durrance that he killed Big Archie and Kimbler, and testified that
he had no reason to murder Big Archie and Kimbler. Further, the
person who was known to have seen Big Archie and Kimbler within
an hour of their deaths and the only person to refute Simpson’s
testimony that Little Archie had taken the sweatclothes from
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Simpson’s trailer—Little Archie himself—also had motive and
opportunity to kill the victims and had threatened to kill them, as
well as Kimbler’s unborn child. Little Archie also knew details of
the crime, including the position of the bodies of Big Archie and
Kimbler. Moreover, at the time of Simpson’s trial, Little Archie was
incarcerated in federal prison for conspiracy to distribute drugs.
Therefore, the undisclosed evidence that Little Archie was a
confidential informant for the State was material.
Further, Little Archie’s testimony and credibility were of
significant consequence when we consider the lack of evidence
linking Simpson to the scene of the crime. Despite the DNA
evidence in this case, it was not a slam dunk for the State, and
there were a number of weak points. As counsel pointed out in
closing, the police failed to investigate much of the evidence they
would later testify incriminated Simpson, the shoes found at the
church did not match the prints at the crime scene, the tire tracks
from the scene did not match any of the vehicles Simpson had
access to at the time, the crime scene technicians failed to collect
much of the trace evidence from the room in which the victims were
found, law enforcement failed to record any of the interviews during
- 28 -
their investigation, some of those who handled the evidence failed to
follow standard operating procedures, and the State only tested a
small fraction of the biological evidence from the crime scene.
There was no evidence placing Simpson in Big Archie and Kimbler’s
home on the night of the murders and no evidence to rebut
Simpson’s testimony that he was at his mother’s house at the time
of the murders. And although there was evidence of a confession, it
came years after the murders from a witness who both had a motive
to kill one of the victims himself and who was in jail due to
information provided by Simpson.
Accordingly, the State’s failure to disclose evidence that Little
Archie had served as a confidential informant against Durrance
constitutes a Brady violation and undermines our confidence in the
outcome of this case. 8
8. We also agree with Simpson that trial counsel’s
performance was deficient in failing to object to several of the
State’s comments in closing argument. However, these errors
standing alone do not constitute grounds for a new trial.
Accordingly, because we conclude that the Brady violation alone
merits reversal for a new trial, we do not address these claims or
cumulative prejudice in further detail.
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III. CONCLUSION
Because we conclude that the Brady violation undermines
confidence in the outcome of the trial, we reverse the denial of
postconviction relief as to the guilt phase, vacate Simpson’s
convictions for first-degree murder, and remand to the trial court
for a new trial. In light of the vacation of the convictions and
remand for a new trial, Simpson’s petition for a writ of habeas
corpus, raising claims of ineffective assistance of appellate counsel,
is dismissed as moot.
It is so ordered.
POLSTON, LABARGA, LAWSON, COURIEL, and GROSSHANS, JJ.,
concur.
CANADY, C.J., dissents with an opinion.
MUÑIZ, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
CANADY, C.J., dissenting.
Because I would conclude that the State’s failure to disclose
evidence that Little Archie had served as a confidential source
against Durrance was not material under Brady, and does not
undermine confidence in the outcome even when considered
cumulatively with counsel’s deficiency in failing to object to several
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of the State’s comments during closing argument and other
improper comments made by the State that were raised on direct
appeal, I would affirm the trial court’s denial of postconviction relief
as to the guilt phase. I would also deny Simpson’s habeas petition
on the merits. I therefore dissent.
The majority first claims that the fact that Little Archie
provided confidential information that was used in a wiretap
application made in Durrance’s trafficking case means that “he had
a ‘relationship to a party’ that was a potential source of bias
requiring disclosure” under our decision in Gorham v. State, 597 So.
2d 782 (Fla. 1992). Assuming that the State was required to
disclose Little Archie’s history as an informant against Durrance, its
failure to do so was not material. The fact that Little Archie had an
interview9 with Agent Brutnell and then-JSO Officer Bates from
which they “gleaned” information about Durrance while Little
Archie was in jail on his own federal charges does little, if anything,
9. Although the record indicates only one such interview took
place on January 7, 2002, the majority seems to imply there were
two. See majority op. at 20-21.
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to suggest Little Archie was biased toward the State in this case. 10
Agent Brutnell testified at the evidentiary hearing that by providing
information about Durrance, Little Archie was attempting to obtain
a benefit in his then-pending federal counterfeiting case; he was not
attempting to aid law enforcement because of a bias toward law
enforcement or the State. Indeed, as a serious drug dealer (which
Little Archie admitted to being when providing the information used
in the wiretap application) under prosecution, he was likely quite
biased against law enforcement. Under questioning by the defense
at Simpson’s trial, Little Archie testified that he was familiar with
Officer Bates and did not like him, stating, “He was a narcotics
agent, sir. I was out there selling drugs. He was trying to put me in
jail.” Further, at the time of Simpson’s trial, there were many other
10. Agent Brutnell testified at the evidentiary hearing that
FDLE did not consider Little Archie a “true,” “documented,”
confidential source and there was no documentation or record that
he was one of the twelve confidential sources who provided
information used in the Durrance wiretap affidavit; Agent Brutnell
just happened to remember that he was. Agent Bates also testified
that JSO did not consider Little Archie a “documented” informant
with respect to the Durrance investigation; since he was not paid,
there would not have been any record of him having been a
“source.”
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and greater reasons why the jury could have concluded that Little
Archie was biased towards the State in this case, e.g., this was the
prosecution of his father’s alleged murderer and he would have
wanted justice to be done, or, as Simpson theorizes, Little Archie
was the real murderer of Big Archie and Kimbler and therefore had
every reason to want Simpson convicted instead of facing
prosecution himself. There was no testimony at the evidentiary
hearing that any agency made a deal with Little Archie for the
information he provided. And at the time, Little Archie was facing
federal counterfeiting charges, for which none of the agencies
involved in Simpson’s case had the authority to offer Little Archie
any sort of consideration. To the extent that Little Archie had a
relationship with law enforcement that would show bias, it was
exceedingly minimal.
The failure to disclose a witness’s informant status is not
always material. The majority cites Hendrix v. State, 908 So. 2d
412 (Fla. 2005), majority op. at 24, a case in which we determined
that the failure to disclose the confidential informant status of one
of the witnesses against Hendrix, Roger LaForce, was not material.
During postconviction proceedings, Hendrix alleged that the State
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violated Brady by failing to disclose that LaForce had previously
been a confidential informant for the State in investigations
unrelated to Hendrix’s case. 908 So. 2d at 423. 11 The trial court
determined that LaForce’s history as an informant was
impeachment evidence that should have been disclosed but that
Hendrix was not prejudiced by the failure to disclose this
information. Id. at 424. On appeal, this Court agreed that Hendrix
was not prejudiced. Id. at 424-25. The Court noted that “LaForce’s
prior assistance as a cooperating defendant, which occurred over a
year prior to Hendrix’s arrest, would have had a minimal impact, if
any,” and that “[t]he more damaging evidence regarding LaForce,
that he heard [Hendrix’s] confession while in prison and contacted
the State because he was seeking a deal, had already been
presented to the jury.” Id. at 425.
Here, Little Archie provided the information used in the
wiretap application in Durrance’s case in January 2000; Simpson
was not arrested until almost three years later in September 2002.
11. Hendrix also alleged that LaForce was given favorable
treatment in exchange for his testimony at Hendrix’s trial, which
was refuted by the record. 908 So. 2d at 424.
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Simpson’s jury was aware that Little Archie was incarcerated on
federal drug charges at the time he testified at Simpson’s trial. The
jury also was made aware of “the more damaging evidence”
regarding Little Archie—that he had threatened to kill his father,
Kimbler, and their unborn child; that he had a financial motive to
kill his father; that he had the opportunity to commit the murders;
and that he knew the positions in which the bodies were found. As
in Hendrix, because of this “more damaging evidence” regarding
Little Archie’s bias that was presented to the jury, his prior
assistance as one of the twelve confidential sources who, nearly
three years prior to Simpson’s arrest, provided information used in
the Durrance wiretap application, would have had a minimal
impact, if any. Even if the jury had heard “testimony regarding
Little Archie acting as a confidential informant,” majority op. at 25,
which “would have introduced a new source of potential bias,” id.,its minimal impact certainly would not have put the entire case “in
such a different light as to undermine confidence in the verdict,”
Sweet v. State, 293 So. 3d 448, 451 (Fla.) (quoting State v. Huggins,
788 So. 2d 238, 243 (Fla. 2001)), cert. denied, 141 S. Ct. 909(2020).
- 35 -
The majority seems to find meritorious Simpson’s argument
that if he had been aware at the time of his trial that Little Archie
had provided the JSO with his “thought [that] Durrance killed Big
Archie in retaliation for the drug disputes and that [Little Archie]
told Caliel that Durrance admitted to killing the drug dealer in West
Palm Beach,” 12 he “could have challenged why the State quickly
dismissed Little Archie as a suspect [which was] because he was a
valuable source of information.” Majority op. at 27. 13 But that
argument is nonsensical because Simpson was also a valuable
source of information (seemingly even more valuable than Little
Archie based on the record before us) to the JSO, Clay County
detectives, the DEA, and the FBI in many state and federal
investigations involving murder, robbery, burglary, auto theft, and
narcotics. He was providing information regarding the potential
involvement of Durrance, Little Archie, and other individuals in
12. Simpson did not include this point within his Second
Amended Motion for Postconviction Relief below.
13. The evidence presented at the evidentiary hearing was
that Little Archie was dismissed as a suspect because he passed a
polygraph.
- 36 -
another homicide and informing on Little Archie’s involvement with
drugs and burglaries and Big Archie’s narcotics operation.
Further, the fact that Little Archie informed against Durrance
does nothing to support Simpson’s theory at trial that Little Archie,
Durrance, and Smallwood were responsible for the murders, as the
majority suggests. To the contrary, it cuts against it. If Little
Archie and Durrance were—as the defense contends—cohorts in the
murders of Big Archie and Kimbler, it seems highly unlikely that
Little Archie would draw attention to Durrance by implicating him
in an unrelated murder. Such an action could potentially
boomerang on Little Archie by provoking a counter-accusation
regarding the murders of Big Archie and Kimbler. The majority
does not explain how it believes “the information Little Archie
provided to law enforcement pertaining to Durrance casts a
different light on this relationship” of “critical importance” between
Simpson, Little Archie, and Durrance. Majority op. at 27. But the
fact that Little Archie informed on Durrance after the murders
suggests that Little Archie and Durrance did not have the type of
relationship that would be expected of cohorts in a double murder.
And although the majority suggests that Little Archie having
- 37 -
informed on Durrance would have affected the jury’s perception of
his credibility at Simpson’s trial, it again fails to explain how. 14 The
jury already likely perceived Little Archie as less than credible
based on his potential motives in seeing Simpson convicted, his
criminal record, and his evasiveness and apparent memory lapses
during his testimony.
The fact that Little Archie had been a source to law
enforcement in unrelated matters is of little, if any, relevance, and
in light of the other information known to the jury about Little
Archie, would not have been an indication that he had a particular
bias toward law enforcement or the State. There is no reasonable
probability that had this information been disclosed to Simpson,
the result of Simpson’s trial would have been different. I would
thus conclude that the State’s failure to disclose that Little Archie
had previously informed against Durrance was not material and did
14. And the majority’s claim that “Little Archie’s testimony at
the evidentiary hearing corroborated Simpson’s testimony at trial
regarding having been to Simpson’s trailer, borrowing clothes, and
finding the detective’s business card,” majority op. at 26 n.7, is not
only irrelevant to the materiality of the Brady claim but also
inaccurate. Nothing in Little Archie’s evidentiary hearing testimony
corroborates Simpson’s trial testimony that Little Archie borrowed
the sweatclothes used in the murders from his trailer.
- 38 -
not prejudice Simpson. Assuming, however, that the first two
Brady prongs were satisfied, I would include this claim in a
cumulative prejudice analysis.
I agree with the majority that trial counsel’s performance was
deficient in failing to object to several of the State’s comments in
closing argument—namely that “[p]hysical evidence cannot be
wrong,” “[i]t is impossible for the criminal to act without leaving
behind traces of his presence,” and “there is no unidentified
forensic evidence belonging to anybody else inside of this murder
scene and there is no unidentified blood on any of this clothing.”
While these comments standing alone did not prejudice Simpson, I
would consider them in a cumulative prejudice analysis along with
the State’s failure to disclose Little Archie’s history as a confidential
source and the improper prosecutorial comments that were
identified on direct appeal as capable of being construed as
improper bolstering. See Simpson v. State, 3 So. 3d 1135, 1147 n.7
(Fla. 2009).
I would conclude that in the context of this case, the
comments that “[p]hysical evidence cannot be wrong” and “[i]t is
impossible for the criminal to act without leaving behind traces of
- 39 -
his presence” did not prejudice Simpson. In fact, I would view the
State’s argument that it is impossible for a criminal to act without
leaving behind traces of his presence to have been favorable to
Simpson, because there was no physical evidence inside the crime
scene linked to Simpson. I would find any prejudice from the
State’s comment that “there is no unidentified forensic evidence
belonging to anybody else inside of this murder scene and there is
no unidentified blood on any of this clothing” to be very limited in
light of the brevity of the statement and the contradictory evidence
presented at trial. The comments made by the State in its closing
argument that we stated on direct appeal could be construed as
impermissible bolstering, were brief and only minimally prejudicial.
Individually, the prejudice resulting from the improper
prosecutorial comments and the failure to disclose that Little Archie
had previously acted as a confidential source ranges from not
prejudicial to minimally prejudicial. Even when considered
cumulatively, I would conclude that the prejudice of these errors is
minimal and does not undermine confidence in the outcome of
Simpson’s trial.
- 40 -
Because I conclude that the failure to disclose Little Archie’s
history as a confidential source was not material under Brady, that
the cumulative effect of this failure together with the improper
comments made by the State during its closing do not undermine
confidence in the outcome of the trial, and that Simpson’s other
claims are without merit, I would affirm the denial of postconviction
relief as to the guilt phase and deny Simpson’s habeas petition on
the merits.
An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge
Case No. 162002CF011026AXXXMA
And an Original Proceeding – Habeas Corpus
John S. Mills, Thomas D. Hall, Courtney Brewer, Jonathan Martin,
and Bailey Howard of The Mills Firm, P.A., Tallahassee, Florida; and
Sonya Rudenstine, Gainesville, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
Amity Boye and Ariel Oseasohn of White & Case LLP, New York,
New York, and Raoul G. Cantero of White & Case LLP, Miami,
Florida,
for Amici Curiae the Innocence Project and Innocence Project
of Florida
- 41 -