Troy Merck, Jr. v. State of Florida ( 2018 )


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  • Supreme Court of Florida
    No. SC18-88
    TROY MERCK, JR.,
    Appellant,
    VS.
    STATE OF FLORIDA,
    Appellee.
    December 28, 2018
    PER CURIAM.
    This case is before the Court on appeal from an order denying Troy Merck’s
    successive motion to vacate a judgment of conviction of first-degree murder under
    Florida Rule of Criminal Procedure 3.851. Because the order concerns
    postconviction relief from a capital conviction for Which a sentence of death Was
    imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of
    the Florida Constitution.1 Merck contends that the postconviction court erred in
    1. The State contests this Court’s jurisdiction because Merck is awaiting
    resentencing under Hurst v. Florida, 
    136 S. Ct. 616
     (2016), and Hurst v. State, 
    202 So. 3d 40
     (Fla. 2016), cert. denied, 
    137 S. Ct. 2161
     (2()17). HoWever, the pending
    denying his overlapping claims of newly discovered evidence and violations of
    Giglio v. United States, 
    405 U.S. 150
     (1972), and Brady v. Maryland, 
    373 U.S. 83
    (1963). For the reasons explained below, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    Merck was convicted of the first-degree murder of J ames Newton and
    sentenced to death, and his conviction was affirmed on direct appeal in 1995.
    Merck v. State (Merck l), 
    664 So. 2d 939
    , 940 (Fla. 1995). We have since affirmed
    the denial of Merck’s initial motion for postconviction relief and denied his
    petition for writ of habeas corpus. Merck v. State (Merck IV), 
    124 So. 3d 785
    , 790
    (Fla. 2013). However, errors in the sentencing process have required resentencing
    on two prior occasions, Merck I, 
    664 So. 2d at 944
    ; Merck v. State (Merck Il), 
    763 So. 2d 295
    , 299 (Fla. 2000), and Merck is presently awaiting his third resentencing
    due to Hurst error in his most recent penalty phase.2
    resentencing does not affect our exclusive jurisdiction over this appeal. See Farina
    v. State, 
    191 So. 3d 454
    , 455 (Fla. 2016).
    2. Merck’s most recent penalty phase took place in 2004, and the resulting
    death sentence became final in 2008. Merck v. State (Merck III), 
    975 So. 2d 1054
    (Fla. 2007), cert. denied, 
    555 U.S. 840
     (2008). The trial court granted Merck’s
    postconviction motion seeking Hurst relief before ruling on the motion at issue in
    this appeal. The State voluntarily dismissed its appeal from the order granting
    Merck Hurst relief .
    The subject of this appeal is Merck’s first successive motion for
    postconviction relief. In that motion, Merck alleged violations of Giglio and
    Brady, as well as a more general claim of newly discovered evidence, based on
    information his postconviction investigator recently obtained from Neil Thomas, a
    key witness for the State at Merck’s trial. Because Merck has been granted a new
    penalty phase, the issues addressed in this decision pertain to his conviction only.
    In Merck’s first appeal, we described the facts of the crime as follows:
    Newton died after Merck repeatedly stabbed him . . . in the parking lot
    of a bar in Pinellas County shortly after 2 a.m. on October [11], 1991.
    The bar had closed at 2 a.m., and several patrons of the bar remained
    in the parking lot. The evidence was that several of these individuals,
    including the victim, Merck, and those who witnessed the murder, had
    consumed a substantial amount of alcohol during the evening while at
    the bar.
    After closing, Merck and his companion [Thomas], both of
    whom had recently come to Florida from North Carolina, were in the
    bar’s parking lot. The two were either close to or leaning on a vehicle
    in which several people were sitting. One of the car’s occupants
    asked them not to lean on the car. Merck and [Thomas] sarcastically
    apologized. The victim approached the car and began talking to the
    car’s owner [Katherine Sullivan]. When Merck overheard the owner
    congratulate the victim on his birthday, Merck made a snide remark.
    The victim responded by telling Merck to mind his own business.
    Merck attempted to provoke the victim to fight; however, the victim
    refused.
    Merck then asked [Thomas] for the keys to the car in which he
    had come to the bar [which was a Mercury Bobcat]. At the car,
    Merck unlocked the passenger-side door and took off his shirt and
    threw it in the back seat. Thereafter, Merck approached the victim,
    telling the victim that Merck was going to “teach him how to bleed.”
    Merck rushed the victim and began hitting him in the back with
    punches. [Sullivan] testified that she saw a glint of light from some
    sort of blade and saw blood spots on the victim’s back. The victim
    _3_
    fell to the ground and died from multiple stab wounds; the main fatal
    wound was to the neck.
    Merck I, 
    664 So. 2d at 940-41
    .
    Merck had two theories of defense. First, he argued that there was a
    reasonable doubt as to whether he, rather than Thomas, was the attacker. Second,
    he argued that if he was the attacker, he was so intoxicated that he “blacked out”
    and did not remember it and, therefore, could not have formed the intent to commit
    premeditated first-degree murder.3
    The trial evidence showed that Thomas and Merck spent approximately four
    hours at the bar before the murder. Merck testified that he consumed twelve to
    fifteen beers and eight to ten shots of liquor during this time. In contrast, Thomas
    testified that he and Merck each consumed approximately six beers and two or
    three shots of liquor. Thomas testified that he felt “buzzed pretty good” and that
    Merck did not show any effects from his consumption of alcohol. Merck did not
    seem to be having any trouble walking, standing, or talking, and Merck responded
    appropriately when Thomas spoke to him. Sullivan also testified that the attacker,
    3. Voluntary intoxication was a defense to specific-intent crimes at the time
    of Merck’s trial, see Gardner v. State, 
    480 So. 2d 91
    , 92 (Fla. 1985), but that
    defense has since been abrogated by statute. § 775.051, Fla. Stat. (2018); ch. 99-
    174, § 1, Laws of Fla. (creating section 775.051, effective October 1, 1999).
    _4_
    whom she identified as Merck both in court and before trial, had no trouble
    walking or talking.4
    According to Thomas, after the attack was over, Merck urged him to
    “[c]ome on,” and Thomas then got into the Bobcat and drove away with Merck,
    asking Merck if he had stabbed Newton. Thomas recalled that Merck held up a
    bloody knife, announced that he had killed Newton, and said that if he had not
    succeeded in killing Newton, he would go to the hospital and “finish what [he]
    started.” Thomas testified that Merck described the attack repeatedly from that
    point forward. At some point, Merck explained to Thomas that he decided to kill
    Newton when Newton failed to back down from the confrontation as Merck
    approached him.
    Thomas testified that after escaping the scene, he parked the Bobcat at an
    apartment complex, where he and Merck began to change clothes. Thomas
    recounted that as he and Merck were in the parking lot, Thomas saw a patrol car
    slam on its brakes and turn around, at which point he and Merck ran. They hid in
    some bushes and then made their way to a Burger King, where they called a cab.
    Merck and Thomas had the driver drop them off at a bowling alley across the street
    4. No witness identified Thomas as the person who stabbed and killed
    Newton. However, Merck argues now, as he did to the jury, that certain aspects of
    the eyewitness testimony would point to Thomas as the perpetrator. Although we
    do not find it necessary to detail this evidence, we have not overlooked it in
    considering materiality or the probability of an acquittal on retrial.
    _5_
    from a motel where they intended to stay. However, before going to the motel,
    they played a game of pool, and Merck had no difficulty with the game.
    According to Thomas, once they arrived at the motel, Merck continued describing
    the attack. Thomas testified that Merck did not pass out or start sleeping or
    “anything like that” and that Merck did not seem to have any difficulty
    remembering what happened.
    Contrary to Thomas’s account of Merck’s actions and demeanor, Merck
    testified that after he heard Thomas calling Newton a name, he leaned down to
    pick something up and that the next thing he remembers is leaning on the Bobcat
    and hearing Thomas tell him to hurry up and change clothes. Merck testified that
    he remembered running with Thomas when they saw a patrol car. He also testified
    that he remembered going to “a Hardee’s or something,” lying in some bushes, and
    taking a cab to a bowling alley where he went in and shot pool. The next thing he
    remembered after that was waking up the next morning at a motel. According to
    Merck, after he told Thomas he did not remember the night before, Thomas told
    him that they had been in a fight and, later, that Merck had stabbed someone.
    Thomas and Merck both testified that three females joined them at the motel
    during the weekend after the stabbing. Two of these females testified that,
    although Merck described the stabbing and claimed to have done it, he was often
    interrupted by Thomas, who supplied and corrected details of Merck’s account
    while Merck looked as though he did not really believe he did what Thomas
    attributed to him. The third female contradicted this testimony, stating that
    Thomas did not take part in recounting the incident.
    A couple of days after the stabbing, Thomas walked away from the motel
    and arranged to be picked up at another location. When his contact arrived, he was
    advised that the police were on their way as well. Thomas was reluctant to talk to
    the police at first, but he ultimately told the police where Merck was and learned a
    few minutes later that Merck was in custody. Thomas gave a sworn statement that
    same day, giving essentially the same account that he later presented at trial. At
    trial, Thomas testified that no one had threatened him to get him to “tell what [he]
    knew about the incident.”
    GIGLIO, BRADY, AND NEWLY DISCOVERED EVIDENCE CLAIMS
    The successive postconviction motion at issue in this appeal relates to
    Thomas’s testimony concerning Merck’s level of intoxication, as well as Thomas’s
    motivation to testify and to minimize Merck’s level of intoxication. The
    postconviction court granted Merck an evidentiary hearing, where it received the
    testimony of Thomas, as well as Merck’s trial counsel, Merck’s initial
    postconviction counsel, and Merck’s current postconviction investigator. Merck
    relied on portions of this testimony to support each of his claims: a Giglio claim, a
    Brady claim, and a newly discovered evidence claim. However, the main
    substance of each claim is based on Thomas’s testimony.
    At the evidentiary hearing, Thomas testified that the State had advised him
    that if he did not attend Merck’s trial to testify, then a “protective custody warrant”
    would be issued and he would “be held in jail until [he] did testify.” Merck
    submitted into evidence a motion the State had filed under a case styled against
    Thomas, indicating that Thomas was a material witness. Thomas confirmed that
    this filing was the reason he participated in the trial. lndeed, he had failed to
    appear to testify in an earlier trial of this case, which resulted in a hung jury.
    Regarding the substance of his trial testimony, Thomas testified at the
    evidentiary hearing that he had always been “bothered” by a concern that Merck
    “was probably a little bit more intoxicated than what [Thomas] had said” at trial.
    He opined that Merck was “a lightweight” when it came to drinking alcohol and
    that Merck was, in fact, “very, very drunk,” or “highly intoxicated,” at the time of
    the stabbing. Thomas noted that he was much larger than Merck and, accordingly,
    that Merck “may have been a lot drunker than [Thomas] was.” Thomas’s
    recollection at the time of the evidentiary hearing was that he and Merck had been
    “drinking pretty much the same amount,” although Merck also drank some tequila
    and Thomas did not.
    Another concern that had “stuck with [Thomas] all this time” and troubled
    him was that he failed to mention a particular occurrence during his trial testimony.
    Specifically, Thomas did not mention that he had “a hard time getting [Merck] to
    respond to him” and to get out of the car to change clothes after the getaway.
    Thomas explained that, while he was testifying previously, he had a “picture in
    [his] head,” which was a memory, or a “flash in [his] mind,” of Merck “kind of
    slumped over” and not responding to him. Thomas explained that he did not
    mention this memory at the time because there were other questions “coming at
    [him]” from the attorneys and he focused on those questions. Thomas was
    equivocal concerning whether he had this memory during the guilt-phase trial or at
    some other time when he was being questioned under oath. However, at one point,
    he concluded that “it was the last time that [he] testified”_which the record shows
    was at Merck’s most recent resentencing in 2004.
    Thomas also testified at the evidentiary hearing that, just before trial, he told
    the prosecutor he was having difficulty remembering how many drinks he and
    Merck had consumed on the night of the stabbing. According to Thomas, the
    prosecutor responded by telling him that he “need[ed] to stick to” what he said in
    his deposition. Thomas confirmed that he had taken this approach while testifying
    and that he took the instruction to mean that if he could not remember something,
    he should “refer to what [he] had already said because that would have been [at] an
    earlier time” when his recollection was better. However, Thomas also testified that
    he was instructed to review the deposition to refresh his memory. Additionally, he
    noted that the prosecutor had commented that his memory would have been fresher
    at the time of the deposition, “or at least [at the time of] the statement that [he] had
    given to police.”
    Although Thomas indicated that he understood the instruction to be that he
    should repeat what he said earlier if he did not have an independent recollection, he
    did not have the impression that the prosecutor was “intentionally trying to . . .
    coerce [his] testimony or anything like that.” When asked if he had ever said that
    he was told to minimize Merck’s level of intoxication, Thomas answered, “I may
    have said that,” and then explained that he was referring to the conversation about
    his failing memory as to the number of drinks he and Merck consumed and the
    instruction to refer to his deposition.
    When asked if he had changed his mind about whether Merck would have
    known what he was doing and remembered what he was doing, Thomas answered,
    “No. Nothing else is different.” Thomas confirmed that, just as he indicated at
    trial, Merck could not stop talking about the murder after Merck committed it and
    that he was “rather proud of it.” Thomas also confirmed that Merck held the
    bloody knife up in the car and said that if Newton was not dead, he would go to the
    _1()_
    hospital and finish killing him. He affirmed that he told the truth at trial to the best
    of his ability and was not trying to mislead anyone.
    After the hearing, the postconviction court denied each claim, and Merck
    argues on appeal that each denial was erroneous.
    ANALYSIS
    We address each claim in tum, reviewing the postconviction court’s factual
    findings for competent, substantial evidence, Waterhouse v. State, 
    82 So. 3d 84
    ,
    101 (Fla. 2012) (quoting Hitchcock v. State, 
    991 So. 2d 337
    , 349 (Fla. 2008)), and
    its application of the law to the facts de novo. Brooks v. State, 
    175 So. 3d 204
    , 231
    (Fla. 2015).
    Giglio Claim
    A Giglio claim consists of the following elements: “(1) the prosecutor
    presented or failed to correct false testimony; (2) the prosecutor knew the
    testimony was false; and (3) the false evidence was material.” Geralds v. State,
    
    111 So. 3d 778
    , 791-92 (Fla. 2010) (citing Guzman v. State, 
    941 So. 2d 1045
    , 1050
    (Fla. 2006)). False testimony presented in violation of Giglio is material “if there
    is any reasonable likelihood that the false testimony could have affected the
    judgment of the jury.” Guzman v. State, 
    868 So. 2d 498
    , 506 (Fla. 2003) (quoting
    United States v. Agurs, 
    427 U.S. 97
    , 103 (1976)). Thus, “[t]he State, as the
    beneficiary of the Giglio violation, bears the burden to prove that the presentation
    _11_
    of false testimony at trial was harmless beyond a reasonable doubt.” 
    Id.
     (citing
    United States v. Bagley, 
    473 U.S. 667
    , 679 n.9 (1985)).
    In denying Merck’s Giglio claim, the postconviction court found that Merck
    failed to establish either that Thomas gave false testimony or that the State
    knowingly presented false testimony. On appeal, Merck argues that the
    postconviction court erred in failing to find that the State committed Giglio
    violations in the following ways: (1) by presenting Thomas’s testimony about
    Merck’s level of intoxication and the amount of alcohol he drank as Thomas’s
    clear recollection, when, in fact, Thomas told the prosecutor that he was having
    difficulty remembering and Thomas was instructed to “stick to” his deposition,
    which was given only a month before trial; (2) by eliciting testimony from Thomas
    that he had not been threatened as an inducement for his testimony when, in fact,
    he was threatened with arrest if he failed to appear for trial; and (3) by failing to
    correct Thomas’s testimony that he had not been promised anything when, in fact,
    there was an undisclosed quid pro quo, as revealed by the fact that Thomas asked
    for and received help with his violation of probation charge in 1997. For the
    reasons explained below, these points do not establish Giglio violations.
    First, Thomas’s postconviction testimony, as construed and credited by the
    postconviction court, refutes Merck’s claim that the State presented false evidence
    by instructing Thomas to “stick to” his deposition concerning the amount of
    _12_
    alcohol Merck consumed and his level of intoxication. Although Thomas may
    have interpreted the prosecutor’s instruction as a directive to repeat what he said in
    his deposition even if he did not remember the facts independently, there was a
    conflict in the evidence concerning the crucial question of whether the prosecutor
    intended to give such a directive and, therefore, could be said to have “knowingly”
    done so. Thomas’s evidentiary-hearing testimony itself was subject to different
    interpretations on this question. Also, the interpretation of the prosecutor’s
    instruction as a recommendation that Thomas rely on the deposition to refresh his
    memory, rather than dictate his trial testimony, was supported by Merck’s trial
    counsel’s testimony that it is common practice to have witnesses review their prior
    statements before they testify at trial.5
    lt was for the postconviction court to resolve the factual issue concerning the
    meaning of the exchange between the prosecutor and Thomas. See Porter v. State,
    
    788 So. 2d 917
    , 923 (Fla. 2001) (“So long as its decisions are supported by
    competent, substantial evidence, this Court will not substitute its judgment for that
    of the trial court on questions of fact and, likewise, on the credibility of the
    witnesses and the weight to be given to the evidence by the trial court.”). The
    court resolved the issue in favor of the State’s position, crediting the portion of
    5. The prosecutor whose instruction is in question is deceased.
    _13_
    Thomas’s testimony indicating that the prosecutor had told him to look at his
    previous testimony to refresh his memory because that testimony was given closer
    in time to the events at issue.6 Of course, such an instruction is not improper. Cf
    Wilcox v. State, 
    143 So. 3d 359
    , 378 (Fla. 2014) (recognizing the practice of
    refreshing a witness’s recollection during trial, even with a writing produced by
    someone else, and finding error in the trial court’s failure to allow the defendant to
    do so). Merck’s argument on appeal is an improper attempt to have us reweigh the
    evidence and make a different factual finding as to the nature of the instruction
    given. See Porter, 
    788 So. 2d at 923
    . We decline to do so. The postconviction
    court’s findings are supported by competent, substantial evidence and belie
    Merck’s position.
    Second, Merck’s postconviction evidence is insufficient to establish that
    Thomas testified falsely when he said that no one had threatened him to induce
    him to “tell what [he] knew about the incident.” Merck argues that this testimony
    6. Merck insists that this instruction was improper and implies that it was
    made in bad faith because the deposition was taken only one month before trial.
    However, Thomas’s testimony indicates that he did not understand the difference
    between his deposition and the statement that was taken under oath in a question-
    and-answer format on October 14, 1991, just days after the murder. The
    deposition and the statement were substantively the same, and on at least one
    occasion during his recent postconviction testimony, Thomas referred to the
    statement as a deposition. He also suggested at one point that the instruction to
    rely on his prior testimony may have been given to him before one of Merck’s
    resentencing proceedings, in reference to his original trial testimony.
    _14_
    was false because the State had threatened to hold Thomas in jail until he testified
    if he failed to appear for Merck’s second trial. However, this evidence does not
    support a conclusion that Thomas testified falsely when he said no one threatened
    him to get him to “tell what [he] knew about the incident,” as the trial evidence
    shows that Thomas spoke to the police voluntarily shortly after he left Merck’ s
    company. The record also shows that Thomas gave a sworn statement that same
    day and provided essentially the same account that he told at trial. Thus, the record
    supports the conclusion that Thomas volunteered to tell what he knew about the
    incident. Furthermore, the trial testimony concerning threats can be reasonably
    understood as referring to the substance of Thomas’s testimony, not the
    compulsion of his attendance at trial. For these reasons, the postconviction court’s
    finding that Thomas did not testify falsely is supported by the record and is not
    undermined by the evidence that Thomas’s attendance at trial was compelled by
    the threat of arrest.
    Third, Merck has failed to establish a Giglio violation concerning an alleged
    quid pro quo agreement between Thomas and the prosecutor, which Merck says is
    evidenced by assistance Thomas received from Merck’s prosecutor in 1997 in
    resolving an unrelated charge of violation of probation. This claim is untimely
    because Thomas testified about the assistance he received with the violation of
    probation in 2004 at Merck’s second resentencing. See Jimenez v. State, 997 So.
    _15_
    2d 1056, 1064 (Fla. 2008) (citing Mills v. Siqie, 
    684 So. 2d 801
    , 804-05 (Fla.
    1996)) (explaining that a successive motion for postconviction relief alleging
    newly discovered evidence in a death-penalty case is untimely if it is not filed
    within one year of the date the claim became discoverable through due diligence).
    However, even if this claim were not untimely, the evidence does not establish a
    quid pro quo agreement. Thomas testified that he reached out to the prosecutor on
    his own initiative and was told that he should not be doing so but that the
    prosecutor would “see what he could do,” and this event occurred long after
    Merck’s trial.
    In addition, Merck argues that this evidence must be considered
    cumulatively with other evidence that he presented previously in postconviction
    proceedings and evaluated under the Giglio standard of materiality. However, as
    shown by the foregoing analysis, the motion under consideration does not involve
    any Giglio evidence. Thus, the cumulative claim fails.
    For the foregoing reasons, Merck’s Giglio claim is without merit.
    Brady Claim
    A qudy claim has three elements: (1) evidence must be identified that
    would have been favorable to the defense because it was either exculpatory or
    impeaching; (2) the defendant must show that the State suppressed the evidence,
    either willfully or inadvertently; and (3) the defendant must show that he was
    _16_
    prejudiced by the suppression of the evidence. Sirickler v. Greene, 
    527 U.S. 263
    ,
    281-82 (1999); see qudy, 
    373 U.S. at 87
    . The prejudice prong requires a showing
    that “there is a reasonable probability that, had the evidence been disclosed to the
    defense, the result of the proceeding would have been different.” Mordenii v.
    State, 
    894 So. 2d 161
    , 170 (Fla. 2004) (quoting Strickler, 
    527 U.S. at 280
    ); see also
    quley, 
    473 U.S. at 682
    . This standard is met by showing that “the favorable
    evidence could reasonably be taken to put the whole case in such a different light
    as to undermine confidence in the verdict.” Mordenii, 
    894 So. 2d at 170
     (quoting
    Allen v. State, 
    854 So. 2d 1255
    , 1260 (Fla. 2003)); see Kyles v. Whitley, 
    514 U.S. 419
    , 434 (1995).
    Merck contends that the postconviction court erred by failing to rule that the
    following evidence constitutes qudy material: (1) the instruction to Thomas to
    “stick to” his deposition testimony; (2) a recollection Thomas had that Merck was
    slumped over and nonresponsive during the getaway, which Merck argues was
    inadvertently suppressed as a result of the instruction to “stick to” the deposition
    testimony; (3) the instruction that Thomas would be arrested if he failed to appear;
    and (4) Thomas’s statement to the prosecutor before trial that he was having
    difficulty remembering how much Merck drank. For the reasons provided below,
    we disagree.
    _17_
    First, the instruction to “stick to” Thomas’s deposition testimony does not
    constitute qudy material. As explained above, the postconviction court found that
    this instruction was nothing more than a direction to rely on prior testimony to
    refresh Thomas’s recollection, and this finding is supported by competent,
    substantial evidence. Therefore, Merck has not established the first prong of
    Brddy.
    Second, as to Thomas’s memory of Merck’s slumping over and not
    responding to instructions to change clothes, the postconviction court found, and
    Thomas’s testimony supports, that the prosecutor did not know about this
    recollection. Further, the postconviction court found, and Thomas’s testimony
    supports, that Thomas never told the prosecutor about it and that he did not have
    this recollection until after his guilt-phase testimony. Although Merck emphasizes
    portions of Thomas’s evidentiary-hearing testimony that would support a finding
    that he had this memory during his guilt-phase trial testimony, this emphasis is an
    improper attempt to have this Court reweigh the evidence. See Porier, 
    788 So. 2d at 923
    . The pertinent legal principle to apply to the facts found by the
    postconviction court on this matter is that “[a] qudy violation occurs ‘when the
    government fails to disclose evidence materially favorable to the accused.’ ” Hursi
    v. State, 
    18 So. 3d 975
    , 988 (Fla. 2009) (quoting Youngblood v. West Virginid, 
    547 U.S. 867
    , 869-70 (2006)). Because neither the prosecutor nor any other
    _13_
    representative of the State knew about the slumping incident, the State cannot be
    said to have failed to disclose it. Therefore, Merck has not established the second
    prong of Brddy.
    Merck argues that the State did not have to know about this information to
    suppress it, as the qudy test for suppression includes inadvertent suppression, and
    one need not know about a fact to inadvertently suppress it. Assuming arguendo
    that this position could be valid under some circumstances, the evidence Merck
    presented at the postconviction hearing does not support such a theory of
    suppression. Merck’s counsel attempted to elicit testimony from Thomas that the
    prosecutor’s instruction caused him not to reveal the slumping incident at trial, but
    Thomas did not confirm this suggestion. This fact, along with the finding and
    evidence that Thomas did not have this recollection until after the guilt phase,
    shows that Merck failed to establish his theory of suppression as to this issue.
    Third, as to the instruction that Thomas would be arrested if he failed to
    appear, the State correctly points out that Merck’s postconviction counsel did not
    ask Merck’s trial counsel if he knew about this threat. Part of establishing a qudy
    claim is showing that the defense did not possess the information at issue. See
    Hursi v. Siqie, 
    18 So. 3d 975
    , 988 (Fla. 2009) (noting that the “defendant has the
    burden” to prove each element of a qudy claim); Provenzqno v. Siqie, 
    616 So. 2d 428
    , 430 (Fla. 1993) (explaining that “[t]here is no qudy violation . . . where the
    _19_
    defense . . . had the information”). Because Merck failed to show that his counsel
    was unaware of the threat to arrest Thomas if he failed to appear or even to ask his
    counsel about this matter at the evidentiary hearing, Merck failed to meet his
    burden to establish that this information was suppressed.
    Fourth, as to Thomas’s statement to the prosecutor that he was having
    difficulty remembering how much Merck drank, even if this fact was suppressed, it
    is not significant enough to meet the qudy standard of materiality. Thomas
    testified at the evidentiary hearing that, other than his perception of Merck’s level
    of intoxication and memory of Merck’s slumping, nothing that he currently
    remembers is different from what he previously testified to. At trial, Thomas
    described Merck’s speech and motor skills as being unaffected by alcohol, stated
    that Merck bragged about the stabbing immediately afterwards and during the days
    that followed, and quoted statements of Merck indicating his specific intent to kill
    the victim, including Merck’s explanation that he decided to kill the victim because
    the victim did not back down and Merck’s statement that if the victim was not
    dead, he would go to the hospital to finish killing him. Furthermore, at the
    evidentiary hearing, Thomas testified again that “kind of what [he] recall[s]” is that
    he and Merck “were drinking pretty much the same amount,” although Merck
    “may have had a little bit more than” Thomas. That testimony is consistent with
    Thomas’s trial testimony. Also, Sullivan’s observations that the attacker was
    _2()_
    having no trouble walking or talking corroborated Thomas’s testimony concerning
    the lack of observable effects of alcohol in Merck.
    For these reasons, although questioning on this issue could have led the jury
    to discredit Thomas’s testimony about the exact number of alcoholic beverages
    Merck drank, it would not have affected the more pertinent question of what
    observable effects the alcohol had on Merck and whether the evidence, on the
    whole, showed that Merck took the actions ascribed to him and did so with the
    requisite intent. Accordingly, the absence of questioning on this matter does not
    undermine our confidence in the verdict.
    In addition, Merck argues that this evidence must be considered
    cumulatively with other evidence that he presented previously in postconviction
    proceedings and evaluated under the qudy standard of materiality. However,
    Merck has not identified any suppressed evidence that was the subject of a prior
    postconviction proceeding. Therefore, he has not identified any additional
    evidence to be evaluated under the qudy standard of materiality in the
    consideration of the motion at issue. Cf Smiih v. Sec’y Dep’i of Corr., 
    572 F.3d 1327
    , 1334 (11th Cir. 2009) (“Considering the undisclosed evidence cumulatively
    means adding up the force of it all and weighing it against the totality of the
    evidence that was introduced at the trial. That is the way a court decides if its
    confidence in the guilty verdict is undermined where a suppressed-evidence type of
    _21_
    qudy claim is involved, or if the suppression was harmless beyond a reasonable
    doubt where a Giglio type of qudy claim is involved.”).
    For the foregoing reasons, Merck’s qudy claim lacks merit.
    Newly Discovered Evidence Claim
    Merck further argues that, to the extent the new information he received
    from Thomas does not establish a Giglio or qudy violation, it constitutes newly
    discovered evidence entitling him to a retrial. We disagree because this claim is
    both procedurally barred and without merit.
    Procedurdl Bdr
    This claim is procedurally barred because it was not filed within one year of
    the date it became discoverable through due diligence. Frqnqui v. Siqie, 
    118 So. 3d 807
    , 
    2013 WL 2211675
    , at *1 (Fla. 2013) (table decision); Jimenez, 997 So. 2d
    at 1064 (citing Mills, 
    684 So. 2d at 804-05
    ). This claim is based on testimony
    received from a witness who has been known since before trial and who was not
    sought by postconviction counsel until 2014, ten years after he testified in the last
    resentencing proceeding in this case. Significantly, the decision to contact Thomas
    was not based on any new information, but rather, a decision by Merck’s current
    counsel that contacting Thomas might be fruitful.
    Although Merck may not have been able to discover all the evidence at issue
    in this claim at the time of trial (particularly that concerning the slumping incident,
    _22_
    which Thomas did not remember until after the guilt-phase trial), he could have
    discovered it at least between the time of the last resentencing and 2014. Because
    the efforts Merck’s current counsel made to contact Thomas could have been made
    at any time between the time of the last resentencing and 2014, and there is no
    indication in the record that Thomas would have been less forthcoming if he had
    been contacted before 2014, a claim based on information discovered from
    Thomas as a result of the 2014 effort is untimely.
    Merits
    In any event, this claim also fails on the merits. A newly discovered
    evidence claim consists of two requirements. First, the evidence “must have been
    unknown by the trial court, by the party, or by counsel at the time of trial, and it
    must appear that the defendant or his counsel could not have known [of it] by the
    use of diligence.” J0nes v. Siqie, 
    709 So. 2d 512
    , 521 (Fla. 1998) (quoting Torres-
    Arboleddr v. Dugger, 
    636 So. 2d 1321
    , 1324-29 (Fla. 1994)). Second, it “must be
    of such a nature that it would probably produce an acquittal on retria .” 
    Id.
     This
    analysis requires consideration of all newly discovered evidence that would be
    admissible at a new trial, including evidence presented in other postconviction
    claims, and an evaluation of the weight of that evidence along with all the evidence
    that was already admitted at trial. Id. at 521-22.
    _23_
    For the purpose of our analysis, we have broken Merck’s claim down into
    six items of evidence and categorized the items according to whether they concern
    alleged inaccuracies in Thomas’s testimony or a bias or motive for Thomas to
    testify falsely. We discuss the two groups of items in turn and then address certain
    evidence from earlier postconviction proceedings on which Merck relies,
    ultimately concluding that the combined effect of the evidence that could be
    presented in a new trial would not satisfy the requirements of the newly discovered
    evidence test.
    The evidence related to the accuracy of Thomas’s trial testimony consists of
    the following: (1) that the game of pool was several hours after the crime; (2)
    Thomas’s recollection that Merck was slumped over and unresponsive in the car
    immediately after the stabbing; and (3) Thomas’s current testimony that Merck
    was more intoxicated than he indicated at trial and, in fact, was “highly
    intoxicated” or “very, very drunk,” was a “lightweight” when it came to drinking
    alcohol, and may have had more alcohol than Thomas.
    The timing of the game of pool is not newly discovered evidence: the pool
    game was discussed at trial, and Thomas could have been cross-examined about
    the specific timing then. Therefore, the information Merck relies on now could
    have been discovered at the time of trial with the exercise of due diligence and
    cannot support a new claim. See id. at 521.
    _24_
    The remaining items in this category concern information that Thomas has
    said he remembered after the guilt phase or felt he did not properly convey at trial.
    However, Thomas’s postconviction testimony concerning these points was
    equivocal, and to the extent it is inconsistent with his trial testimony, it is not so
    materially inconsistent as to create a reasonable probability of an acquittal of first-
    degree murder on retrial. See id. (stating the newly discovered evidence test).
    When considered together with the remainder of the testimony that Thomas
    has given throughout this case, which Thomas maintains is true, the incident of
    Merck’s slumping and failing to respond is not as significant as Merck contends it
    is. Thomas gave three sworn accounts of the incident up to and including the guilt-
    phase trial, and he never remembered that detail or found it significant enough to
    reveal, even though he was asked at the end of his pre-trial statements if there was
    anything else he thought he should mention. When the slumping incident is
    considered in this context and in light of Thomas’s postconviction testimony that
    he was never intentionally misleading, as well as the postconviction court’s finding
    that Thomas did not testify falsely, it becomes clear that this detail must have been
    a momentary occurrence, not a significant event reflecting Merck’s state of mind
    during the stabbing.
    The other inconsistency concerns Thomas’s characterization of Merck’s
    level of intoxication and an acknowledgment that Merck may have had “a little bit
    _25_
    more” to drink than Thomas said at trial. However, Thomas did not testify at the
    postconviction hearing that his testimony concerning the number of drinks Merck
    consumed was incorrect, and his subjective impression of Merck’s level of
    intoxication is overcome by other, more concrete testimony that he gave, both at
    trial and during the evidentiary hearing.
    Specifically, Thomas confirmed at the evidentiary hearing that, just as he
    indicated at trial, Merck could not stop talking about the murder after he
    committed it and was “rather proud of it.” He also confirmed that Merck held the
    bloody knife up and said that if Newton was not dead, he would go to the hospital
    to finish killing him, and that Merck even compared stabbing the victim to a sexual
    experience. When asked if he had “changed [his] mind about whether [Merck]
    would have known what he was doing and remembered what he was doing,”
    Thomas answered, “No. Nothing else is different.”
    Given that Thomas testified that “[n]othing else is different,” his
    postconviction testimony indicates that Thomas testified accurately about Merck’s
    recounting of the event not only on the night of the stabbing but in the days that
    followed, showing that Merck remembered it. lt also indicates that Merck
    explained that he made a conscious decision to kill Newton when Newton did not
    show submission as Merck was advancing toward him. Furthermore, Thomas’s
    testimony at trial concerning Merck’s identity as the stabber and his intent to kill
    _26_
    were corroborated by other evidence. Not only did Sullivan identify Merck as the
    attacker, but she also testified that she heard Merck say he was going to teach
    Newton how to bleed, and another witness heard a similar statement. Additionally,
    one of the three females who spent time with Merck and Thomas in the weekend
    after the stabbing testified that Merck recounted the stabbing without prompting
    from Thomas and took responsibility for it. ln consideration of this evidence, we
    conclude that the slumping incident and Thomas’s subjective impression that
    Merck may have been more intoxicated than Thomas conveyed at trial would not
    probably produce an acquittal if Merck were to have a new guilt-phase trial.
    The remaining items of allegedly newly discovered evidence, those relating
    to Thomas’s alleged bias or motive to testify falsely, are the following: (1)
    Thomas’s acknowledgement that he may have told Merck’s postconviction
    investigator that he was instructed to minimize Merck’s level of intoxication; (2)
    that Thomas was instructed to “stick to” his deposition testimony; and (3) that
    Thomas was told he would be arrested and held until he testified if he did not
    appear for Merck’s trial. These items do not combine with the previously
    discussed items to show that Merck would probably be acquitted on a retrial. See
    lones, 
    709 So. 2d at 521
     (setting forth the newly discovered evidence test).
    Although Thomas acknowledged that he “may have” said that the prosecutor told
    him to minimize Merck’s level of intoxication, he explained that he was referring
    _27_
    to the instruction to “stick to” his deposition testimony, which the postconviction
    court found was merely an instruction to use that testimony to refresh his memory.
    Additionally, as indicated in our analysis of Merck’s Giglio claim, the threat of
    arrest amounted to a showing that Thomas was compelled to testify at the trial, not
    that he was required to testify to a particular set of facts. Therefore, this evidence
    would not have impeached Thomas significantly.
    The impeachment value that Merck might gain from the use of this
    information in a hypothetical new trial would be overcome by the rehabilitation
    that would follow. Each of Merck’s points concerning Thomas’s bias or motive to
    testify falsely relates to circumstances that arose after Thomas gave his original
    sworn statement to the police. Therefore, that statement, which was consistent
    with Thomas’s trial testimony, would be used to rehabilitate Thomas in a new trial
    if Merck’s counsel relied on any of the information he recently obtained
    concerning Thomas’s alleged bias and motive to testify falsely. See Chqndler v.
    Siqie, 
    702 So. 2d 186
    , 197-98 (Fla. 1997) (explaining that prior consistent
    statements are admissible as substantive evidence if “the person who made the
    prior consistent statement testifies at trial and is subject to cross-examination
    concerning that statement; and the statement is offered to ‘rebut an express or
    935
    implied charge of . . . improper influence, motive, or recent fabrication ) (quoting
    Rodriguez v. Stdie, 
    609 So. 2d 493
    , 500 (Fla. 1992)); § 90.801(2)(b), Fla. Stat.
    _23_
    (2018). Thomas’s sworn statement to the police would have the effect not only of
    rehabilitating him but of bolstering his trial testimony. See Rodriguez, 
    609 So. 2d at 500
    . Given Thomas’s recent testimony confirming the most significant aspects
    of his trial testimony_and, therefore, showing that he would again confirm them
    at trial in response to any questions concerning pressure from the State_and the
    manner in which his prior statement to the police could be used in response to such
    impeachment, the newly obtained information concerning alleged improper
    influence by the State does not combine with the remaining items of allegedly
    newly discovered evidence to establish that Merck would probably be acquitted on
    retrial. See J0nes, 
    709 So. 2d at 521
     (stating the newly discovered evidence test).
    Finally, Merck requests that, in analyzing the merits of this claim, this Court
    consider not only the allegedly newly discovered evidence raised in the successive
    postconviction motion at issue, but also the prior postconviction testimony of Dr.
    John Brigham, which related to factors that have been shown generally to render
    eyewitness identification inaccurate or less reliable, as well as specific factors that
    might have called the reliability of Sullivan’s identification of Merck into question.
    See qu]jford v. Siqie, 
    125 So. 3d 760
    , 775-76 (Fla. 2013). We conclude that the
    addition of Dr. Brigham’s testimony to the trial evidence and the allegedly newly
    discovered evidence would not probably produce an acquittal on retrial.
    _29_
    For the foregoing reasons, Merck’s claim of newly discovered evidence is
    without merit.
    CONCLUSION
    Because Merck has failed to show error in the denial of his successive
    postconviction motion alleging Giglio and qudy violations, as well as a claim of
    newly discovered evidence, we affirm the order denying that motion.
    lt is so ordered.
    CANADY, C.J., and PARIENTE, LEWlS, QUlNCE, POLSTON, LABARGA,
    and LAWSON, JJ., concur.
    NO MOTION FOR REHEARING VVILL BE ALLOWED.
    An Appeal from the Circuit Court in and for Pinellas County,
    Cynthia J. Newton, Judge - Case No. 521991CF016659XXXXNO
    Linda McDermott of McClain & McDermott, P.A., Estero, Florida,
    for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake,
    Senior Assistant Attomey General, Tampa, Florida,
    for Appellee
    _3()_