George James Trepal v. Secretary, Florida Department of Corrections

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
June 19, 2012
No. 10-15306 JOHN LEY
CLERK
________________________
D.C. Docket No. 8:05-cv-01527-RAL-TBM
GEORGE JAMES TREPAL,
llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
llllllllllllllllllllllllllllllllllllllllRespondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 19, 2012)
Before CARNES, HULL and PRYOR, Circuit Judges.
HULL, Circuit Judge:
Florida death row inmate George James Trepal appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After review
and oral argument, we affirm.
I. BACKGROUND
A. Overview
In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa
member,1 of murdering his neighbor Peggy Carr and attempting to murder six
other members of Carr’s family. Trepal poisoned the victims by adding the toxic
element thallium to bottles of Coca-Cola in the Carrs’ home.
Trepal’s trial lasted a month, with more than 70 witnesses together
providing overwhelming evidence of Trepal’s guilt. For example, several
independent witnesses chronicled Trepal’s long-running conflicts with and
animosity toward the Carr family. Evidence established Trepal’s extensive
knowledge of chemistry, as well as his possession of chemistry laboratory
equipment, a number of toxic chemicals, and a homemade journal on poisons and
poison detection in human organs. Finally, multiple experts uniformly testified
that (1) the victims were poisoned by thallium, (2) thallium was found in both the
empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was
1
Mensa is a society of persons aged 14 and older who are in the top 2% of intelligence, as
shown by test scores.
2
found in a brown bottle in Trepal’s garage. Thallium is a heavy metallic element
that is both rare and toxic to humans. When dissolved, it is odorless and tasteless.
A lethal dose of thallium is approximately 14 milligrams per kilogram of body
weight, which for an average person is around 1 gram of thallium.
Trepal’s case would be long over but for the fact that in 1997, six years after
Trepal’s trial, the Office of the Inspector General of the United States Department
of Justice (“OIG”) issued a report (the “OIG Report”) that was critical of certain
work performed by Roger Martz, a Special Agent in the Chemistry-Toxicology
Unit of the FBI Laboratory, who testified against Trepal. After other witnesses
had established independently that thallium was found in Trepal’s garage and was
put in Coca-Cola bottles to poison the victims, Agent Martz went further and tried
to identify the particular chemical form of thallium that was found in Trepal’s
garage and in three unopened Coca-Cola bottles in the victims’ home.
Trepal filed a state postconviction motion alleging that certain parts of
Martz’s trial testimony were false and thus Trepal was entitled to a new trial under
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). The state court denied
Trepal’s motion, finding that although some of Martz’s trial testimony was false, it
did not prejudice Trepal enough to warrant a new trial, given the strength of the
unchallenged portions of Martz’s testimony, other experts’ unchallenged
3
testimony, and all the other trial evidence of Trepal’s guilt. The Florida Supreme
Court affirmed.
Trepal filed his § 2254 petition, which the district court denied. A
certificate of appealability (“COA”) was granted on Trepal’s Giglio claim. As
explained later, this case presents many thorny issues about Trepal’s Giglio claim,
such as the appropriate level of deference due the Florida Supreme Court’s denial
of the claim, whether Martz’s testimony was false, whether Martz’s testimony can
be imputed to the state prosecutor, and whether any false testimony was material
under Giglio. Although we identify and discuss the issues to some extent, we
ultimately need not decide them because even assuming arguendo that Trepal has
shown a Giglio error, Trepal has not suffered the requisite actual prejudice and
thus any Giglio error was harmless. To show why Trepal was not prejudiced, we
outline in depth the evidence presented at trial and in state postconviction
proceedings.
B. The Poisonings
Trepal and his wife, Dr. Diana Carr, lived in Alturas, Florida, on property
adjoining the home of victim Peggy Carr and her husband Parearlyn “Pye” Carr.2
2
Dr. Carr, a medical doctor, is no relation to Pye or Peggy Carr and their family. When
we refer to the “Carr family,” we mean Pye and Peggy Carr and their relatives living on their
property (whether or not those relatives bear the surname Carr), not Trepal’s wife or any of her
4
The two homes—Pye Carr’s and Trepal’s—were located amid orange groves and
were very isolated. The next nearest neighbors were about a quarter-mile away.
In June 1988, Pye Carr received an anonymous letter stating, “You and all
your so-called family have two weeks to move out of Florida forever or else you
will all die. This is no joke.” The letter was postmarked in nearby Bartow,
Florida. Even though Pye’s home was in Alturas, the letter correctly listed Pye’s
mailing address as being in Bartow, Florida. Pye’s and Trepal’s homes, both in
Alturas, had Bartow mailing addresses because they got their mail on the Bartow
post office route. Trepal would know this fact.
On October 23, 1988, Peggy Carr began to show symptoms of an unknown
illness, including nausea, pain in her chest and extremities, and difficulty
breathing. She was admitted to Bartow Memorial Hospital the next day and stayed
for three days. Back at home, Peggy’s symptoms worsened, and the children in
the Carr home, Travis and Duane, began to show similar symptoms. On October
30, 1988, Peggy, Travis, and Duane were admitted to Winter Haven Hospital.3
relatives. To avoid confusion, we will refer to Dr. Carr as “Trepal’s wife.”
3
Peggy Carr and her teenaged son Duane Dubberly moved into Pye’s home after Peggy
and Pye’s March 1988 wedding. Pye’s teenaged son, Travis Carr, lived in the home as well.
5
Treating neurologist Dr. Richard Hostler suspected thallium poisoning.4
Within 24 hours, lab tests confirmed the presence of thallium in Peggy’s tissues.
Despite treatment, Peggy Carr’s condition deteriorated, and within a week
she lapsed into a coma from which she never awoke. She died on March 3, 1989.
Duane remained hospitalized for two months and Travis for six months, but
both eventually recovered. Tests revealed the presence of thallium not only in
Travis and Duane, but also in Pye, his daughter Gelena, and his granddaughter
Kasey, who also lived with Pye and Peggy.5
C. The Investigation
Following the thallium poisoning diagnosis, the Polk County Sheriff’s
Office and other governmental agencies searched for the source of the Carrs’
exposure. Representatives of the Polk County Health Department, the Florida
Department of Health and Rehabilitative Services (“HRS”), and the EPA searched
4
Pure thallium metal is not absorbed appreciably into the human body. However, there
are a number of thallium salts (including thallium nitrate) that are water soluble. When
dissolved, thallium forms an ion that, in human tissues, interferes with the body’s ability to use
oxygen and generate energy.
Thallium is used in certain manufacturing processes and in chemical laboratories, but it is
not commonly available to the public. Thallium was used as an ingredient in rodenticides and
pesticides in the United States until 1972, when the Environmental Protection Agency (“EPA”)
banned its use in such products.
5
In March 1988, Pye converted a detached garage on his property into an apartment for
his daughters, Tammy Carr and Gelena Bell, and Pye’s two-year old granddaughter, Kasey Bell.
The residents of the apartment spent time in the “main” house, too.
6
the Carrs’ home.6
At the Carrs’ home, investigators recovered an 8-pack of 16-ounce glass
Coca-Cola bottles from the kitchen. Three bottles were full and four were empty.7
The HRS and FBI Laboratories tested and found thallium in the three full bottles
and thallium residue in the four empty bottles. The bottle caps from the three full
bottles showed evidence of having been removed by a small tool and then placed
back onto the bottles with a press or capping device. The investigation became a
criminal one.
In December 1988, investigators interviewed Trepal. When asked why
anyone would want to poison the Carrs, Trepal said that perhaps someone wanted
them to move out of their home. Investigators found Trepal’s response eerily
similar to the threatening letter. Police later learned Trepal had a college degree in
chemistry and in the 1970s was the chemist of a methamphetamine laboratory, for
which he served two and a half years in federal prison. Local police began an
undercover investigation of Trepal that lasted more than a year.
On December 12, 1989, investigators searched Trepal’s home. They found
a small brown bottle in the drawer of a workbench in his garage. The bottle
6
Local officials searched Peggy and Pye’s places of employment and found no thallium.
7
The eighth bottle consisted of broken pieces of glass.
7
contained a white powder that was tested and found to contain thallium.
Trepal was arrested. On April 5, 1990, Trepal was indicted on one count of
first-degree murder, six counts of attempted first-degree murder, seven counts of
poisoning food or water, and one count of tampering with a consumer product.
D. Trial Evidence
Trepal’s trial ran from January 7 to February 7, 1991. In the guilt phase, the
State called more than 70 witnesses. Trepal’s three attorneys—J. Wofford
Stidham, Jonathan Stidham, and Dabney Conner—called no witnesses, relying on
the evidence elicited during cross-examination.
Below we set forth in more detail the trial evidence by which the State
connected Trepal to the Carr poisonings, divided into these topics: (1) Trepal’s
suspicious police interview and the ensuing undercover investigation of Trepal,
including the “Mensa murder weekend” event Trepal hosted; (2) the searches of
Trepal’s homes, in which police discovered Trepal’s chemistry equipment, poison
journal, poisonous chemicals, and the bottle of thallium; (3) Trepal’s chemistry
and criminal background; (4) Trepal’s history of animosity toward the Carrs; (5)
Florida HRS’s testing of the empty Coca-Cola bottles; (6) expert Havekost’s
testing at the FBI Lab; (7) Martz’s testimony; and (8) testing by the Coca-Cola
corporate laboratory.
8
1. Trepal’s Suspicious Interview and Ensuing Undercover Investigation
Detective Ernest Mincey of the Polk County Sheriff’s Office led the
investigation and the interview of Trepal that put him on the police’s radar. In his
interview, which took place on December 22, 1988, Trepal looked very nervous.
Trepal told Detective Mincey and FBI Agent Brad Brekke that he was a self-
employed computer programmer and technical writer and he knew nothing of
thallium.
When asked why someone might want to poison the Carr family, Trepal said
perhaps someone wanted them to move out of their house, which, Trepal noted,
the Carrs had done. Mincey found this response suspicious because it was
different from those given by the more than 50 people Mincey had already
interviewed and, as noted earlier, it was “almost identical” to the threatening letter.
In April 1989, an article in the local newspaper advertised upcoming events
for the Mensa organization, of which Trepal and his wife were members. The
article discussed an upcoming “Mensa murder weekend” role-playing event that
Trepal and his wife were hosting. Susan Goreck, a Special Agent with the Polk
County Sheriff’s Department, began an undercover investigation of Trepal by
attending the event under the assumed name “Sherry Guin.”
The Mensa murder weekend was held at a local hotel. There were four
9
“murders” acted out during the weekend, which the participants, while acting out
their roles, tried to solve. The story concerned voodoo. The murders were very
sophisticated, and each of the four was preceded by the victim receiving a
threatening note. Trepal’s wife wrote the murder scenarios with Trepal’s help. In
particular, Trepal himself wrote a booklet given to participants during the
weekend that discussed, among other things, poisoning and threats by neighbors.
It stated:
Few voodooists believe they can be killed by psychic means, but no one
doubts that he can be poisoned. When a death threat appears on the
doorstep, prudent people throw out all their food and watch what they
eat. Hardly anyone dies from magic. Most items on the doorstep are
just a neighbor’s way of saying, “I don’t like you. Move or else.”
During the weekend, Trepal told Goreck that he and his wife were planning
to move and that Trepal might be selling his Alturas home. Goreck told Trepal
she would like to look at Trepal’s home if it were for sale.
A few days after the Mensa murder weekend, Agent Goreck, as Sherry
Guin, went to Trepal’s home, ostensibly about buying it. Goreck visited Trepal
several more times in May and June 1989. Goreck became friends with Trepal and
his wife and learned, among other things, that Trepal was very interested in botany
10
and knew about poisonous plants.8
In November 1989, Trepal and his wife moved to Sebring, Florida. From
December 1989 to January 1990, Goreck rented Trepal’s home in Alturas.
2. Searches of Trepal’s Homes and Discovery of Thallium Bottle
While Goreck was renting Trepal’s house in Alturas, she and other law
enforcement officers searched it. FBI Agent Brekke found a brown bottle inside
the drawer of a workbench in Trepal’s detached garage. Agent Brekke uncapped
the bottle and saw residue inside it. Goreck sent the bottle to the FBI Lab for
analysis. The FBI Lab informed Goreck that the bottle contained thallium I
nitrate.9
Police also searched Trepal’s new home in Sebring, Florida. Police found
chemistry books, including: (1) The Merck Index of Chemicals and Drugs; (2) the
Handbook of Chemistry and Physics, which contained chemical information on
8
In January 1990, Goreck met with Trepal and brought up the Carr poisonings. Goreck
testified that Trepal was usually very talkative, but was quiet and thoughtful during this
conversation. Similarly, Patricia Boatright, who was a friend and confidante of Trepal, testified
she asked Trepal about the poisonings and he “didn’t meet [her] eyes, and the subject was then
dropped.” For some weeks afterward, there “was a strained quality” to Boatright’s relationship
with Trepal, and she never discussed the poisonings again because “[i]t always just fell like a
thud and the subject was changed.”
9
Two forms of thallium nitrate exist: thallium I nitrate and thallium III nitrate. The two
forms of thallium nitrate have different chemical structures and properties, though both are toxic
to humans.
11
thallium; and (3) the Fire Protection Guide on Hazardous Materials, which
contained a section on thallium compounds. Police also seized from Trepal’s
home: (1) a pamphlet written by Trepal called “Chemistry for the Complete Idiot,
Practical Guide to all Chemistry” with pictures and index; (2) “many, many”
chemicals, plus chemistry-related glassware and equipment; and (3) a homemade
journal described as “a general poison guide.”
Trepal’s journal included photocopied pages from a book entitled, Poison
Detection in Human Organs. One of the photocopied pages included a discussion
of thallium. The journal was tested for fingerprints and was found to have
Trepal’s prints on it. Trepal’s wife’s prints were not found on the journal.
Trepal’s journal also contained photocopied pages from another book with a
section entitled, “Death by Poison Synopsis.” One page from the journal, which
was read to the jury, stated that “Determining whether a person died as a result of
natural illness or as a result of poisoning is one of the most difficult types of
investigation both for the officer and for the medical expert.” The page described
the process by which one tries to determine if someone has been poisoned. The
next page in the journal stated, among other things, “The presence of any one
poison is so difficult to ascertain that it may be undetected unless the [medical]
examiner has some idea as to the type of poison for which he is looking.”
12
Some of the photocopies in the journal were made from a library book at
Central Piedmont Community College in Charlotte, North Carolina. Trepal
attended Central Piedmont Community College from 1974–1975.
3. Trepal’s Chemistry and Criminal Background
Several witnesses testified about Trepal’s chemistry experience, which went
back well over a decade, and the collection of chemistry equipment Trepal kept in
his Alturas garage and Sebring home.
First, DEA Agent Richard Broughton testified that, in the mid-1970s, Trepal
“was the chemist and mastermind” of a group that produced methamphetamine.
David Warren, Trepal’s partner in the methamphetamine production scheme, also
testified to Trepal’s role as chemist for the group.
Trepal’s methamphetamine production experience was particularly relevant
because, as Agent Broughton testified, thallium nitrate can be used in the process.
Specifically, thallium III nitrate can be used to produce phenyl-II-propanone,
called “P2P,” which “is an immediate precursor used in the manufacture of both
methamphetamine and amphetamine.” When the P2P is produced, a sediment
drops out of solution, and that sediment is thallium I nitrate. The P2P “is then
13
used to manufacture amphetamine, and the Thallium I Nitrate is disposed of.”10
Second, a witness confirmed that Trepal kept chemicals and other chemistry
equipment in the garage of his Alturas home. Calvin Adams, a builder who did
some work for Trepal and his wife as they were moving into their Alturas home in
1982 and who helped them with the move, noticed that one of the items he helped
move into Trepal’s garage “was a plastic milk carton filled with chemical bottles.”
There were at least four or five boxes of chemicals and chemical bottles and other
chemistry items. Some of the chemicals were in brown bottles like the bottle
police found in Trepal’s garage.
Adams asked Trepal what he was doing with the chemistry items, and
Trepal replied, “I’m a chemist. I intend to set up a laboratory in the garage.”
Trepal also had an antique-type bottle capper, which is used to affix metal caps
onto glass bottles. Trepal told Adams he sometimes made wine for himself and
capped the wine bottles.
Third, Trepal’s chemistry collection at the time of his arrest included many
exotic and dangerous chemicals. Scott Ryland, an analytical chemist for the
Florida Department of Law Enforcement, analyzed various chemicals that were
10
Although there was no evidence Trepal himself used or obtained thallium nitrate during
his methamphetamine-production days (Warren supplied Trepal with his P2P), as chemist for the
group Trepal may well have been aware of thallium nitrate’s role in making P2P.
14
seized from Trepal’s homes in Alturas and Sebring. These chemicals included
sodium cyanide, barium chloride, cobalt nitrate, potassium ferricyanide, chromium
trioxide, platinum oxide, lead chloride, and uranium oxide, all of which are toxic.
4. Trepal’s Animosity Toward the Carrs
Numerous witnesses recounted Trepal’s years of threats, arguments, and
animosity toward the Carrs. For example, Alan Adams, who did lawn care for
Trepal in 1982 and 1983, saw Trepal interact with the children who lived at the
Carrs’ property. Trepal “always got highly upset and usually yelled obscenities at
them.” Trepal “made threats” toward the Carr children on “several occasions.”
One time Trepal said, “I will get them.” Another time, Trepal “got highly upset
when they rode some motorcycles through his yard and said, ‘I’m going to kill
you.’”
Margaret Smith, who was Pye’s first wife and the mother of Tammy and
Travis, lived next door to Trepal for four years. Trepal did not like the Carrs’
dogs. Several times Smith saw Trepal “throwing sticks or stomping his foot at
them trying to get them out of his yard.”
John Schaffer bought the Carrs’ home after Peggy’s death and became
Trepal’s new neighbor. Trepal told Schaffer that Pye had a drinking problem and
irritated Trepal by coming over to Trepal’s house while drunk and banging on
15
Trepal’s door. Trepal told Schaffer that there was a “big social difference”
between the Trepal and Carr families because the Trepals were reserved and
childless and kept to themselves, whereas the Carrs were “kind of redneckish and
. . . the children weren’t disciplined the way they should be.” The Carr children
bothered Trepal by playing the radio too loudly and being disrespectful.
Pye estimated he had disagreements with Trepal at least 10 or 12 times.
One time the Carrs were “working on [Travis’s] truck in the back of the
workshop” and they and a visitor were listening to “a party tape” that had risque
jokes and profanity on it. The tape was played pretty loudly, and Trepal came over
to talk to Pye about it three times. Pye did not turn the tape down.
In March 1988, Trepal called the zoning board to complain about the Carrs
converting their garage to an apartment, which Trepal claimed violated the zoning
ordinance. A county codes inspector issued the Carrs a notice of violation for
building without a permit, and Pye later got a permit.
One day in September 1988, Gelena’s former husband Ronald Chester was
working on his truck and had the radio on. Trepal asked Chester to turn the radio
down because Trepal was reading a book. Trepal was shaking and “acted like he
was upset.” Chester turned the radio down, and “like two minutes later” Trepal
came and again told Chester to turn the radio down, even though the radio was not
16
playing loudly.
Both Trepal’s and the Carrs’ houses had their water supplied by wells. On
occasion, each home had to share water by hooking up to the other’s well. In early
October 1988, at which time one of the wells was supplying water to both houses,
Trepal came over to the Carrs’ home to complain about their radio playing outside.
Pye told Trepal they would turn the radio off soon. Trepal left, and they did so.
Later Travis turned the radio back on while washing his car, and Trepal again
complained. Pye told Trepal that Travis was “just listening to the radio and
washing the car.” After Pye went into the house, Trepal disconnected the water
hose to the Carrs’ home.
A few days before Peggy Carr became ill, Trepal’s wife had “a discussion”
with Peggy “about some loud music.” The Carr children were playing the music
outside and “[i]t was extremely loud even inside [Trepal’s] house.” Trepal’s wife
asked Peggy to have the Carr children turn their music down. Peggy told Trepal’s
wife that Peggy “didn’t have to.” Trepal’s wife believed Trepal was home with
her at the time.
Trepal’s conversations with law enforcement reflected his animosity toward
the Carr family. Trepal’s comments also showed that his hostility toward the
Carrs continued even after Peggy was killed and the rest of the Carrs moved away.
17
Trepal told Agent Goreck that Pye Carr was “always trying to sell him something”
and “tried to sell him everything but his wife.” Trepal continued talking and
“seemed to get agitated.”
Trepal told FBI Agent Brad Brekke that the Carrs had not been friendly to
him and his wife, and that Pye tried to take advantage of them by selling them a
barbecue cooker Pye had made. Trepal reached an oral agreement to buy Pye’s
workshop behind his house for $10,000, but Pye backed out of the deal.
Trepal complained about a lot of people coming and going out of the Carrs’
house, and their having a lot of trucks. Trepal “acted angry and exhibited
animosity,” which Agent Brekke “felt was unusual since the incidents . . . were
seven or eight years old.”
5. Florida HRS’s Testing of Washings from Empty Coca-Cola Bottles
Although part of Martz’s testimony about the full Coca-Cola bottles is
challenged here, other experts confirmed the presence of thallium in the Coca-
Cola bottles at the Carrs’ home and in the brown bottle in Trepal’s garage. For
example, Larry Blackwell, a Florida HRS chemist, tested the samples sent from
the Carrs’ home, including the washings from the empty Coca-Cola bottles.11
11
The empty bottles, which contained nothing visible in them, were tested to see if there
was any thallium residue in the bottle that could not be seen. This was done by adding to the
bottle “a concentration of distilled water and nitric acid, which would dissolve any metals,”
18
Blackwell used two instruments, an inductively coupled plasma atomic emission
spectrometer (“AES” or “ICP”) and a graphite furnace atomic absorption
spectrometer (“AAS”).12 The AES and AAS tests indicate only the presence and
concentration of the metal searched for (in this case, thallium). They chemically
decompose any other ions or elements in association with the metal, so they
cannot indicate what compound of thallium was present in the samples. The
washings from the empty Coca-Cola bottles were positive for thallium, as were
urine samples from the Carr family members.
6. Havekost’s Testing at FBI Lab
a. Full Coca-Cola Bottles—Q1, Q2, and Q3
The three full bottles of Coca-Cola were sent to the FBI Lab and labeled as
samples Q1, Q2, and Q3. Donald Havekost, an analytical chemist with the
Elemental Analysis Unit of the FBI Lab, was asked to analyze the contents of the
full bottles Q1, Q2, and Q3 for the presence of heavy metal poisons, including
arsenic, lead, and thallium. Havekost tested the samples using AES and found the
swirling the distilled water/nitric acid mixture around in the bottle for about a minute, and then
pouring the resulting “washing” into a sample bottle to be tested using AES and/or AAS.
12
The AES measures the intensity and wavelength of light emitted by a sample when it is
heated, while the AAS measures the intensity and wavelength of light absorbed by the sample
when it is heated. Each test then compares the light intensity and wavelength to that from a
known standard.
19
“predominant element was thallium.” Havekost found none of the other heavy
metals for which he tested.
Once Havekost learned that thallium was present, he again performed an
AES analysis, this time comparing the result with that from known thallium
standards he prepared in the laboratory to determine the quantity of thallium
present in the Coca-Cola. For the bottle labeled Q1, Havekost found 403.6
milligrams of thallium in the total volume of the bottle. For the bottle labeled Q2,
Havekost found 915.3 milligrams of thallium. For the bottle labeled Q3, Havekost
found 767.5 milligrams of thallium.
b. Empty Coca-Cola Bottles—Q11, Q12, Q13, and Q14
Havekost’s laboratory unit received from the Florida HRS laboratory the
washings from the four empty Coca-Cola bottles, which the FBI labeled Q11,
Q12, Q13, and Q14. The washings from the four empty bottles contained thallium
in the following amounts: 4.32 milligrams, 3.65 milligrams, 2.08 milligrams, and
.62 milligrams.
c. Trepal Garage Sample—Q206
Havekost later received the residue from the brown bottle found in Trepal’s
garage, which the FBI labeled Q206. The sample consisted of 640 milligrams of
“beige-colored, dirty-white crystalline material or powder.” Havekost tested the
20
powder using scanning electron microscopy (“SEM”). Havekost found thallium in
the compound.
d. Havekost Trial Testimony
At trial, Havekost testified about his testing of the full bottles Q1 through
Q3, the washings from the empty bottles Q11 through Q14, and the powder
residue in the brown bottle, Q206, from Trepal’s garage. Havekost testified that
he found thallium in all of those samples. Trepal has never challenged Havekost’s
findings, testing methodology, or trial testimony.
7. Martz’s Testimony
Before Martz tested any samples, thallium had already been found in all of
them. Martz was asked only to determine what salt of thallium was in the samples
of Coca-Cola from the full Coca-Cola bottles Q1, Q2, and Q3, and from the
residue found in the brown bottle Q206. Martz did not test, and did not testify
about, the washings from the empty Coca-Cola bottles Q11 through Q14.
Martz first tested the Coca-Cola from the full Q1, Q2, and Q3 bottles.
Martz testified that he performed a diphenylamine (“DP”) test on all three samples
and “got a blue color,” which he said indicated the solution “contains a nitrate.”
Martz testified: “Based on that test I concluded that thallium nitrate was added to
the Coca-Cola.”
21
Martz also performed an ion chromatography (“IC”) test to determine
whether thallium nitrate was present in the Q1, Q2, and Q3 samples. Martz
testified that he tested all three samples and again concluded that all three samples
contained nitrate ions. Based on the DP and IC tests, Martz opined that thallium
nitrate was in the Q1, Q2, and Q3 samples.13
On cross-examination, Martz admitted he did not “a hundred percent”
exclude the possibility that the nitrate he found in the Coca-Cola may have come
from a source other than the thallium salt that was added, but Martz “found
nothing else in the Coca-Cola to indicate that anything else was present.”
Later, Martz received Q206, the brown bottle with white powder in it from
Trepal’s garage, and was asked to identify the white powder. Martz tested the
powder using infrared and x-ray diffraction (“XRD”) and concluded the brown
bottle contained thallium I nitrate.14 Martz did not measure quantitatively the
amount of substance in the bottle, but “based on the tests [he] did, nothing else
was identified.” The powder weighed .64 grams, which is about “a little more
than two aspirin tablets” or one “extra strength capsule” of Tylenol.
13
There was no way from those tests to determine whether the thallium nitrate was
thallium I nitrate or thallium III nitrate. And as to Q1, Q2, and Q3, Martz did not testify whether
it was I or III, but only that it was thallium nitrate.
14
Martz testified that thallium I nitrate and thallium III nitrate “have different crystalline
structures, and the x-ray equipment is able to differentiate those particular two compounds.”
22
8. Testing by Coca-Cola Corporate Laboratory
Chemists at the Coca-Cola corporate laboratory tested the effect of adding
various thallium salts to bottled Coca-Cola.
Coca-Cola chemists first added various thallium compounds to bottles of
Coca-Cola to see which would dissolve. The chemists successfully dissolved
thallium malonate, thallium formate, thallium phosphate, and thallium sulfate in
the Coca-Cola, and re-capped the bottle. When finished, the Coca-Cola in the re-
capped bottle “looked the same” as it had before.
Later the Coca-Cola chemists performed this test using thallium I nitrate
and thallium III nitrate. The thallium I nitrate dissolved and the Coca-Cola looked
normal. The thallium III nitrate did not dissolve well. It “gave a . . . brownish
precipitant” and “[t]he Coca-Cola turned sort of a muddy color.” In time, “the
muddy color settled to the bottom” of the bottle, but “the beverage looked
substantially different, much lighter in color, and there was a precipitant or sort of
a muddy-looking substance at the bottom of the bottle.”
A Coca-Cola representative came to the FBI Lab and tested the three full
bottles of Coca-Cola (Q1, Q2, and Q3) for carbonization and pressure. The three
bottles had lower than Coca-Cola’s normal levels of carbonization and pressure.
This was evidence that the Coca-Cola bottles had been uncapped so that thallium
23
could be added to them, and then recapped. Notably too, a witness had seen
Trepal with a device used to recap bottles.
E. Verdict, Penalty Phase, and Sentence
After deliberating for six hours, the jury found Trepal guilty of one count of
first-degree murder, six counts of attempted first-degree murder, seven counts of
poisoning food or water with intent to kill or injure, and one count of tampering
with a consumer product.
In the penalty phase, the State called Dr. Richard Hostler, the neurologist
who treated Peggy Carr, to testify about the pain Peggy Carr experienced from the
thallium poisoning, including her complaints of an intense burning sensation in
her feet and the fact she was in pain for several days, until she became comatose.
The State called no other witnesses.
The parties entered into two stipulations. First, they stipulated that Trepal
(1) “was arrested and convicted of the offense of conspiracy to manufacture
methamphetamine in 1975,” (2) “was incarcerated for this offense for a period of
two-and-one-half years,” and (3) had “no record of other criminal convictions.”
Second, the parties stipulated that Trepal “does not have a history of violent
behavior.”
The defense called no witnesses and, apart from the stipulations, presented
24
no evidence. After deliberating for about one hour, the jury, by a 9 to 3 vote,
recommended that the court impose the death penalty.
The state trial court followed the jury’s recommendation and imposed the
death penalty on the first-degree murder conviction.
The state trial court sentenced Trepal to concurrent 90-year sentences on the
remaining convictions.
F. Direct Appeal
Trepal appealed to the Florida Supreme Court. Trepal argued, inter alia,
that the evidence was insufficient to support his first-degree murder conviction.
The Florida Supreme Court affirmed Trepal’s convictions and death sentence.
Trepal v. State, 621 So. 2d 1361 (Fla. 1993) (“Trepal I”). The Supreme Court
denied Trepal’s certiorari petition. Trepal v. Florida, 510 U.S. 1077, 114 S. Ct.
892 (1994).
G. Initial State Postconviction Proceedings
On June 16, 1995, Trepal filed a Florida Rule of Criminal Procedure 3.850
motion to vacate his convictions and death sentence, which he later amended.
Trepal’s amended 3.850 motion raised 30 claims, including ineffective assistance
of counsel. On November 6, 1996, after an evidentiary hearing, the 3.850 court
issued a 40-page order denying relief on all of Trepal’s claims. Trepal appealed.
25
H. 1997 OIG Report
In April 1997, while Trepal’s 3.850 appeal was pending in the Florida
Supreme Court, the OIG Report issued. Among other things, the OIG Report
criticized some of Martz’s testimony about Q1, Q2, and Q3 in the Trepal case.
The OIG’s main criticism was that Martz’s testimony as to Q1 through Q3
was “stronger than his analytical results would support.” The OIG Report
admitted “Martz could have properly opined that certain samples were consistent
with thallium nitrate having been added to them.” However, the OIG Report
criticized Martz for testifying that “thallium nitrate was added to the Coca-Cola”
and that, in his opinion, thallium nitrate was in the Q1, Q2, and Q3 samples.
The OIG Report also pointed out that Martz had run DP tests on Q1, Q2,
and Q3 but IC tests on only Q1 and Q2. Because Martz did not run an IC test on
Q3 (contrary to his trial testimony), the OIG Report opined that Martz did not have
an analytical basis for stating Q3 was even consistent with the addition of nitrate.
Third, the OIG Report faulted Martz’s trial testimony about the number of
tests he performed. Martz was asked whether he had performed any tests other
than the DP test to determine if there was thallium nitrate in the Coca-Cola
samples, and Martz answered that he had done “one other test,” IC. But in fact
Martz ran other tests besides DP and IC, which he did not mention at trial. Fourth,
26
the OIG Report criticized Martz for not performing certain additional tests such as
(1) the “validation experiment of adding thallium nitrate to known unadulterated
Coca-Cola” and running the DP and IC tests on this known sample, and (2)
quantifying the nitrate he identified in Q1 through Q3 and comparing the amount
of nitrate to the amount of thallium that Havekost found in those samples.
Additionally, the OIG Report indicated that Martz’s notes were lacking in detail
and in some instances inaccurate.
The OIG Report concluded that Martz’s work on the Trepal case
demonstrated “a lower threshold of scientific proof than is generally accepted in
forensic science” and a “lack [of] appropriate scientific rigor in [Martz’s] approach
to examinations.”
I. Remand and Another 3.850 Evidentiary Hearing in Trial Court
After the OIG Report was issued, and upon Trepal’s motion, the Florida
Supreme Court stayed Trepal’s appeal and relinquished jurisdiction to the 3.850
court. Trepal then amended his Rule 3.850 motion to raise, among other things, a
Giglio claim as to his convictions. The 3.850 court held an evidentiary hearing.
1. Roger Martz
Trepal’s first witness was Martz. Martz discussed his methodology and
testimony and acknowledged some errors, but ultimately held fast to his opinion at
27
trial that thallium nitrate had been added to Q1, Q2, and Q3, the full Coca-Cola
bottles.
Martz believed the OIG Report contained three major criticisms of his work
in the Trepal case: (1) Martz gave a stronger opinion than the OIG believed was
warranted when he opined the thallium nitrate “was added” to the samples instead
of the results being “consistent with thallium nitrate having been added”; (2)
Martz’s notes were incomplete and in places inaccurate; and (3) Martz said all
three samples Q1 through Q3 were tested for nitrate, but Q3 was not tested using
the IC.
Martz acknowledged he could have done a better job of taking notes, and he
erred in not mentioning that he did not run the IC test on Q3. But neither failure
affected his final report or final opinion. Martz’s opinion was still that thallium
nitrate was added to the Coca-Cola. Martz testified that “in hindsight, [he]
probably should have” tested all three samples using the IC test, but “a lot of time
if we have multiple samples, we wouldn’t test all of them. We would test a
representative sample for the confirmatory test just to speed things up.”
As to Q3, Martz did no other tests besides the DP test. Martz justified his
conclusion that Q3 had nitrate in it, despite only running one test on that sample:
I have 25 years of experience testing samples that are associated with
28
the case and doing representative samples from those cases, that if you
take two out of three of the samples, they both have thallium in it, two
of the three have nitrate, and the third one has a presumptive test for
nitrate, I used my 25 years—or 20 years of experience working these
type of cases to conclude that the third sample, even though I didn’t do
the confirmative test, the only logical explanation would be nitrate.
Martz also explained that the DP test is a presumptive screening test for
oxidizing agents, such as nitrates. The DP test was positive for Q1, Q2, and Q3,
and negative for an unadulterated Coca-Cola sample. A positive result is indicated
by a blue color.
At Trepal’s trial, Martz testified that when you pour DP into a solution that
contains a nitrate, “you get a blue color.” However, that testimony failed to
acknowledge that “there’s other chemicals that will give a blue color” in a DP test.
Although Martz had first testified at trial that his conclusion that thallium nitrate
was added to the Coca-Cola was based on the DP test, later in his trial testimony
he clarified that he had also relied on the IC test results in reaching that
conclusion.15
Martz testified that the IC is used as a “confirmatory test” to confirm the
15
Martz conducted four other tests on the Coca-Cola bottle samples: mass spectrometry
(“MS”), x-ray diffraction (“XRD”), scanning electron microscopy (“SEM”), and liquid
chromatography (“LC”). Martz’s MS testing of the samples “wasn’t successful,” and he did not
rely on it for any of his conclusions. Martz tested the Q1 sample, but not Q2 or Q3, using XRD
and SEM. The tests other than DP “were to give [Martz] negative results, and [he] didn’t need to
repeat them on the other samples.” In short, Martz did not mention the testing other than DP and
IC because his “opinion was basically . . . from the [DP] test and the [IC].”
29
results of the DP test. However, without a positive result on both tests, Martz
“would not call it a positive nitrate.”
Martz acknowledged that neither the DP nor the IC tests alone provide
positive identification for nitrate (by themselves, each test can at best produce
results “consistent with” nitrate). But Martz stated that if both tests are positive,
then in his opinion you have proven the presence of nitrate. And, both the DP and
IC tests were positive for the Coca-Cola in Q1 and Q2. Martz stated that
“generally in forensic science, you do a multiple of tests, at least two, in order to
prove something is present because of the fact that you can get false positives.”
In the State’s cross-examination, Martz pointed out that the OIG never said
Martz’s actual testing of the samples in the Trepal case was done improperly. The
OIG merely questioned the documentation and testimony.
Martz also opined that “based on the data [he] provided,” he did not believe
anyone could say thallium nitrate was not added to the Coca-Cola samples. That
is because thallium is present and there are elevated levels of nitrate.16
16
At the 3.850 hearing, two other FBI toxicology experts testified: (1) Thomas Jourdan,
who worked in the FBI Lab’s Chemistry and Toxicology Unit from 1992 to 1997 and served as
chief of the Materials and Devices Unit since 1997; and (2) Steven Burmeister, the chief of the
FBI Lab’s Chemistry and Toxicology Unit. Both agreed that to a reasonable scientific certainty,
thallium nitrate was added to Q1 and Q2, and they gave reasons for their opinions. Both could
not testify as to Q3 because no IC test was run on Q3. In its ruling, the 3.850 court discounted
the testimony of Jourdan and Burmeister, so we do not rely on it.
30
2. Marland Dulaney, Jr.
Trepal’s main witness in the state collateral proceeding was Marland
Dulaney, Jr., a consulting toxicologist. Dulaney opined that he could not rely on
the IC charts to a “reasonable scientific certainty” because Martz did not run
proper standards and blanks. Martz did not run chloride or sulfate standards to
confirm where chloride and sulfate ions appeared on the charts. Martz ran a
nitrate standard, but did so by adding known nitrate to water, not to Coca-Cola.
Dulaney did not dispute that thallium was present in the Coca-Cola samples.
But Dulaney opined that all one can say with reasonable scientific certainty about
Q1, Q2, and Q3 is that they contain thallium. Dulaney could not rule out the
possibility that thallium nitrate was added to the Coca-Cola samples. Moreover,
Dulaney could not testify that the thallium salt present in the Q samples was
something other than thallium I nitrate, because he had insufficient information.
Dulaney testified that Martz’s “approach is so bad, . . . it has so many holes that
anybody can say anything that they want, because they have to make assumptions,
and if you assume this and this and this, then this is true.” But the data provided
no way to test the assumptions.
Based on his review of the data, Dulaney opined that the conclusion that
thallium nitrate was added to Q1 and Q2 cannot be made to a reasonable degree of
31
scientific certainty. According to Dulaney, adding nitrate to Coca-Cola and
running an IC on it was “the fundamental step that would allow us to say that
thallium nitrate was added to Coca-Cola,” and that was not done.
3. Frederic Whitehurst
Frederic Whitehurst, the former FBI Lab examiner whose complaints began
the OIG investigation, worked in the FBI Lab from 1986 to 1998. Whitehurst’s
area of expertise was explosives, but he was familiar with the tests and equipment
used in the Trepal case.
Whitehurst opined that the IC testing in the Trepal case did not meet
acceptable scientific standards. Whitehurst agreed with Dulaney that Martz
should have run a standard in Coca-Cola instead of water “to see what effect the
Coke and the instrument has on the chromatography.”
Nonetheless, Whitehurst had no doubt that thallium was found in the Coca-
Cola. But Whitehurst believed there were “too many unknowns” to conclude
which form of thallium was added. However, Whitehurst admitted that, based on
the test results he reviewed, Q1 and Q2 are consistent with thallium nitrate having
been added to them, and neither he nor anyone else could, based on the data
available, rule out thallium nitrate having been added to the samples. In
32
Whitehurst’s opinion, there was not enough data to say one way or another.17
J. Denial of Trepal’s Amended Rule 3.850 Motion
On October 26, 2000, the 3.850 court issued a 36-page order denying
Trepal’s amended Rule 3.850 motion. The 3.850 court found that “[n]o real attack
[was] made on the findings of Q206,” the brown bottle from Trepal’s garage.
Thus, the court limited its discussion on the testing of Q206 to the relationship of
Q206 to Q1, Q2, and Q3, the samples from the full Coca-Cola bottles.
As to Q1, Q2, and Q3, the 3.850 court found the following instances of false
testimony by Martz at Trepal’s trial: (1) Martz stated a positive DP test indicates
the presence of a nitrate (instead of saying the presence of an oxidizing ion, of
which nitrate is an example); (2) Martz stated nitrate was not present in the
unadulterated Coca-Cola (whereas the IC results indicated a nitrate could be
present, although the DP test was negative); (3) Martz stated he ran IC tests on Q1,
Q2, and Q3 (when he only tested Q1 and Q2); (4) Martz did not reveal he
performed additional testing on the Q samples (beyond the DP and IC tests he
17
Trepal’s trial attorneys Jonathan Stidham and Dabney Conner testified at the 3.850
evidentiary hearing. Stidham and Conner testified that the comparison of the contents of the
Q206 bottle to the Q1 through Q3 Coca-Cola bottles was important to the case, and thus defense
counsel hired their own chemistry expert to try to disprove that the thallium in the Coca-Cola
bottles came from Q206. However, the defense expert was not able to do so, and so they did not
call him to testify. The defense expert’s analysis did not replicate Martz’s work and proceeded
along completely different lines.
33
discussed at trial); and (5) Martz stated that the tests indicated thallium nitrate was
added to Q1, Q2, and Q3 (instead of that the test results were consistent with
thallium nitrate having been added to Q1 and Q2, and consistent with an oxidizing
ion being present in Q3).
The 3.850 court called Martz’s trial conduct “outrageous and shocking,” but
noted that regardless, to prevail on any of his claims, Trepal must show he was
prejudiced. Thus, “the court must look to the effect the evidence would have on
the jury verdict, both in the guilt phase and the penalty phase.”
As to Trepal’s Giglio claim, the 3.850 court discussed the materiality
standard, as follows:
[Trepal] claims a violation of Giglio for use of false testimony at trial.
Giglio v. United States, 405 U.S. 150 (1972). . . . Giglio holds that a
conviction based on false or perjured testimony, which the prosecution
knew or should have known was false, violates due process when such
information is material. The materiality prong is the same as that used
in Brady. See Rose v. State, WL 1508576 (Fla. 2000). False
information is material if “there is a reasonable likelihood that it could
have [a]ffected the jury verdict.” Id.
The 3.850 court determined that the materiality question “implies a comparison”
between Martz’s “actual testimony” at trial and “what Martz could have truthfully
testified to at trial.”
Denying relief, the 3.850 court concluded that Trepal could not show
34
prejudice. The 3.850 court found that “given the test results that Martz could have
rightfully testified about and considering all the other evidence in the case,” there
was “no reasonable likelihood that the verdict would have been different.”18
K. Rule 3.850 Appeal
Trepal appealed the denial of his Rule 3.850 motion to the Florida Supreme
Court, which affirmed. Trepal v. State, 846 So. 2d 405 (Fla. 2003) (“Trepal II”),
receded from in part by Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003).
As to Trepal’s Giglio claim, the Florida Supreme Court quoted at length the
3.850 court’s order. Trepal II, 846 So. 2d at 410-26. In particular, the Florida
Supreme Court quoted the 3.850 court’s statements that: (1) the Giglio
“materiality prong is the same as that used in Brady”; (2) “[f]alse information is
material if ‘there is a reasonable likelihood that it could have affected the jury
verdict’”; (3) in conducting the Giglio analysis, Martz’s “actual testimony should
be compared to what Martz could have truthfully testified to at trial”; (4) in the
18
In full, the 3.850 court said:
As to the guilt phase, the court finds . . . that there is no reasonable likelihood
that the verdict would have been different. This case was based almost entirely on
circumstantial evidence. The testing results of the Coke samples and Q206 were the
only direct evidence of Trepal’s guilt. Even so, given the test results that Martz could
have rightfully testified about and considering all the other evidence in the case, the
court finds no reasonable likelihood that the guilt phase results would have been
different. Although this is a circumstantial evidence case, the evidence was strong.
Turning to the penalty phase, . . . . [t]he court finds that there is no reasonable
likelihood that the verdict would have been different. . . .
35
guilt phase, “there is no reasonable likelihood that the verdict would have been
different”; and (5) in the penalty phase, “there is no reasonable likelihood that the
verdict would have been different.” Trepal II, 846 So. 2d at 425-26 (emphasis
added and omitted).
The Florida Supreme Court then set forth its own analysis.19 Id. at 426-28.
The Florida Supreme Court agreed with the 3.850 court’s conclusion “that Trepal
was not impermissibly prejudiced by the testimony of Martz.” Id. at 426.
To explain why, the Florida Supreme Court reviewed the 3.850 court’s
findings on specific false or misleading statements Martz made at Trepal’s trial:
In the present case, the circuit court found that the following statements
made at trial by Martz were improper for the following reasons:
- Martz stated: “And when you pour that [i.e., diphenylamine or
DP] into a solution which contains a nitrate you get a blue color.” (The
circuit court, however, found as follows: when you pour DP into a
solution that contains an oxidizing ion—which may or may not be a
nitrate—you get a blue color.)
- Martz stated: “Based on that test [i.e., the DP test] I concluded
that thallium nitrate was added to the Coca-Cola.” (The circuit court,
however, found as follows: all that could be concluded based on the DP
test—in conjunction with the other tests—was that the test results were
consistent with the presence of thallium nitrate.)
- Martz stated: “No nitrates were present in the unadulterated
Coca-Cola.” (The circuit court, however, found as follows: ion
19
The Florida Supreme Court noted that the Martz testimony claim involved a mixed
question of law and fact. Trepal II, 846 So. 2d at 426. Thus, the Florida Supreme Court
reviewed the 3.850 court’s “ultimate ruling” de novo but its factual findings based on whether
they were “supported by competent substantial evidence.” Id. at 427.
36
chromatography or IC testing showed the presence of a substance that
could have been a nitrate in the unadulterated Coke.)
- “In this particular case, when I tested the Coca-Cola [via IC] the
results were positive for the nitrate ion.” (The circuit court, however,
found as follows: the IC test can show only the presence of an oxidizing
ion—which may or may not be a nitrate.)
- Martz was asked: “Did you test each of the samples on the ion
chromatograph to determine whether nitrate was present?” He
responded: “Yes, I did.” (The circuit court, however, found as follows:
Martz did not test each sample. He did not test the third sample, i.e., Q3,
on the ion chromatograph.)
- Martz stated: “On three samples that I tested, all three contained
nitrate ions.” (The circuit court, however, found as follows: on two
samples that Martz tested, all that he appropriately could have attested
to was that the tests were consistent with the presence of a nitrate; and
that on the third sample, the tests were consistent with the presence of
an oxidizing ion—which may or may not have been a nitrate.)
- Martz was asked: “Based on those two tests [i.e., DP and IC], is
it your opinion that what was in those three Coca-Colas, sir, was
thallium nitrate?” He responded: “That is correct.” (The circuit court,
however, found—as noted above—that all that Martz appropriately
could have attested to was that the tests were consistent with the
presence of thallium nitrate.)
Id. at 427 (brackets in original). The Florida Supreme Court then noted
unchallenged, incriminating facts that existed regardless of Martz’s false
testimony:
Regardless of the above improprieties in the testimony of Martz (and
regardless of the improprieties in his testing practices and omissions in
his testimony), the following conclusions nevertheless can properly be
drawn from the present record:
[1.] Peggy Carr died from ingesting thallium (of an undetermined
type).
[2.] Of the various forms of thallium, only thallium sulfate and
37
thallium nitrate (sub-group I) dissolve in Coca-Cola without changing
the appearance of the Coke or foaming out of the bottle.
[3.] The brown bottle found in Trepal’s garage contained (a)
thallium, and (b) an oxidizing ion consistent with the presence of a
nitrate.
[4.] Five empty Coca-Cola bottles found in the Carr household
contained thallium (of an undetermined type).
[5.] Tests on two unopened bottles of Coca-Cola found in the Carr
household (a) showed the presence of thallium, and (b) yielded results
that were consistent with the presence of a nitrate.
[6.] Tests on a third unopened bottle of Coca-Cola found in the
Carr household (a) showed the presence of thallium, and (b) yielded
results that were consistent with the presence of an oxidizing ion (which
may or may not have been a nitrate).
Id. at 427-28.
The Florida Supreme Court concluded that the 3.850 court’s “factual
findings are supported by competent, substantial evidence in the record, and the
court properly concluded—based on those findings—that the prejudice suffered by
Trepal was insufficient to warrant a new trial. We find no error.” Id. at 428.
The Florida Supreme Court’s majority opinion did not state explicitly what
materiality standard it was applying, and did not comment upon (whether to
approve or disapprove) the materiality standard applied by the 3.850 court.
In a special concurrence, two Florida Supreme Court justices clarified the
different prejudice standards relating to Brady and Giglio claims. Trepal II, 846
So. 2d at 437 (Pariente, J., concurring). The concurrence explained its view that
38
the 3.850 court incorrectly stated that the Brady and Giglio materiality standards
were identical. Id. at 438-39. Nevertheless, the justices concurred because, even
if Martz’s false testimony satisfied the other elements of the Giglio test, the
testimony “could not have led the jury to find other than that Trepal intentionally
poisoned his neighbors with thallium, resulting in the death of Peggy Carr.” Id. at
439.
Several months after Trepal II, the Florida Supreme Court, in a unanimous
decision, noted its precedent lacked clarity and explained that the Brady and
Giglio materiality standards are different. Guzman v. State, 868 So. 2d 498, 505-
06 (Fla. 2003). Under Brady, one must show “a reasonable probability that the
undisclosed evidence would have produced a different verdict,” whereas under
Giglio, one must show that “there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.” Guzman, 868 So. 2d at
506 (emphasis added).
After Guzman, Trepal moved the Florida Supreme Court to reopen his
appeal. Trepal argued that he was entitled to a new trial or, at least, a remand to
the 3.850 court for a proper Giglio analysis.
On December 6, 2004, in an unpublished decision, the Florida Supreme
Court summarily denied relief “on the merits.”
39
L. Federal Habeas Proceedings
On August 17, 2005, Trepal filed in the district court his 28 U.S.C. § 2254
petition for a writ of habeas corpus. Trepal’s § 2254 petition claimed, inter alia,
that Martz’s false testimony violated Giglio.
On June 15, 2010, the district court issued a 75-page order denying Trepal’s
§ 2254 petition. The district court concluded Trepal did not show that the Florida
Supreme Court’s Trepal II decision was contrary to or based on an unreasonable
application of Giglio.
The district court granted Trepal a COA on “[w]hether the decision in
Trepal II, 846 So. 2d at 428—that ‘the prejudice suffered by Trepal as a result of
Martz’s improprieties was insufficient to warrant a new trial’—is objectively
unreasonable.”20 Trepal appealed to this Court.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, “imposes a highly deferential standard for
20
The district court also granted Trepal a COA as to “[w]hether the decision in Trepal II,
846 So. 2d at 428—‘that the [3.850] court’s factual findings are supported by competent,
substantial evidence in the record’—is objectively unreasonable.” In his initial brief on appeal,
however, Trepal does not argue that the state 3.850 court’s findings were not supported by the
record. In any event, the record amply supports all the state 3.850 court’s fact findings and we
conclude the Florida Supreme Court’s decision was not unreasonable. See 28 U.S.C.
§ 2254(d)(2).
40
evaluating state-court rulings and demands that state-court decisions be given the
benefit of the doubt.” Hardy v. Cross, 565 U.S. —, 132 S. Ct. 490, 491 (2011)
(quoting Felkner v. Jackson, 562 U.S. —, 131 S. Ct. 1305, 1307 (2011)). Section
2254, as amended by AEDPA, provides that a federal court shall not grant federal
habeas relief to a state prisoner on a claim adjudicated on the merits in state court
unless the state court’s adjudication of the claim: (1) “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States”; or (2)
“resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
“We review de novo the district court’s decision about whether the state
court acted contrary to clearly established federal law, unreasonably applied
federal law, or made an unreasonable determination of fact.” Johnson v. Upton,
615 F.3d 1318, 1330 (11th Cir. 2010) (quotation marks omitted), cert. denied, 131
S. Ct. 3041 (2011).
III. DISCUSSION
In order to discuss the issue of whether the Florida courts contravened or
unreasonably applied controlling federal law here, we first set forth the governing
41
Giglio materiality standard.
A. Giglio Standard
In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), the Supreme
Court held that when the prosecution solicits or fails to correct known false
evidence, due process requires a new trial where “the false testimony could in any
reasonable likelihood have affected the judgment of the jury.” 405 U.S. at 154, 92
S. Ct. at 766 (ellipsis omitted). Giglio error, which “is a species of Brady error,”
exists “when ‘the undisclosed evidence demonstrates that the prosecution’s case
included perjured testimony and that the prosecution knew, or should have known,
of the perjury.’” Ventura v. Att’y Gen., 419 F.3d 1269, 1276-77 (11th Cir. 2005)
(quoting United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976)).
“To establish a Giglio claim, a habeas petitioner must prove: (1) the
prosecutor knowingly used perjured testimony or failed to correct what he
subsequently learned was false testimony; and (2) such use was material, i.e., that
there is any reasonable likelihood that the false testimony could have affected the
judgment.” Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348 (11th Cir.
2011) (“Guzman II”) (quotation marks and ellipsis omitted).21
21
We refer to our December 7, 2011 Guzman decision as “Guzman II” to distinguish it
from the Florida Supreme Court’s 2003 decision in Guzman v. State, 868 So. 2d 498, 505-06
(Fla. 2003), discussed earlier, which we refer to as “Guzman.”
42
The Giglio materiality standard is “different and more defense-friendly”
than the Brady materiality standard, as we have explained:
Where there has been a suppression of favorable evidence in violation
of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), the nondisclosed 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.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3383, 87 L. Ed. 2d 481 (1985). A different and more defense-friendly
standard of materiality applies where the prosecutor knowingly used
perjured testimony, or failed to correct what he subsequently learned
was false testimony. Where either of those events has happened, the
falsehood is deemed to be material “if there is any reasonable likelihood
that the false testimony could have affected the judgment of the jury.”
United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49
L. Ed. 2d 342 (1976) (emphasis added); accord Giglio v. United States,
405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); Napue v.
Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 1178, 3 L. Ed. 2d 1217 (1959).
United States v. Alzate, 47 F.3d 1103, 1109-10 (11th Cir. 1995). Thus, for Brady
violations, the defendant must show a reasonable probability the result would have
been different, but for Giglio violations, the defendant has the lighter burden of
showing that there is any reasonable likelihood that the false testimony could have
affected the jury’s judgment. Alzate, 47 F.3d at 1109-10. The Brady materiality
standard “is substantially more difficult for a defendant to meet than the ‘could
43
have affected’ standard” under Giglio.22 Id. at 1110 n.7.
B. Whether Trepal has Satisfied § 2254(d)
A threshold issue is the proper standard of deference that applies to the
Florida Supreme Court’s denial of Trepal’s Giglio claim—that is, whether Trepal
has shown that the Florida Supreme Court’s denial of his claim in Trepal II was
contrary to or based on an unreasonable application of clearly established Supreme
Court precedent. See 28 U.S.C. § 2254(d)(1). Here, the relevant Supreme Court
precedent is Giglio, for “no Supreme Court case since Giglio itself has squarely
addressed a Giglio claim.” Ventura, 419 F.3d at 1279.
Trepal argues that we should review the merits of his claim de novo because
the Florida Supreme Court’s Trepal II decision was contrary to Giglio in that it
applied the wrong materiality standard. Trepal is correct that a state court decision
falls under the “contrary to” prong of § 2254(d)(1) if it “applies a rule that
contradicts the governing law set forth” in a prior Supreme Court holding. Price
v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848, 1853 (2003) (quotation marks
omitted). However, it is less than clear whether the Florida Supreme Court in
22
“[T]he reason the lower materiality burden applies where there is knowing use of
perjured testimony is that such a situation involves prosecutorial misconduct and a corruption of
the truth-seeking function of the trial.” Alzate, 47 F.3d at 1110; accord Agurs, 427 U.S. at 103-
04, 96 S. Ct. at 2397.
44
Trepal II applied a materiality rule that contradicts Giglio’s.
The Florida Supreme Court, for its part, did not expressly state what
materiality standard it applied. Instead, the Florida Supreme Court quoted nearly
the entire analysis of the 3.850 court, and then stated that it agreed Trepal was not
prejudiced by Martz’s testimony:
After evaluating the conflicting testimony of the witnesses, the [3.850]
court concluded that Trepal was not impermissibly prejudiced by the
testimony of Martz. We agree.
...
. . . [W]e agree that the prejudice suffered by Trepal as a result of
Martz’s improprieties was insufficient to warrant a new trial. . . . [W]e
conclude that the [3.850] court’s factual findings are supported by
competent, substantial evidence in the record, and the [3.850] court
properly concluded—based on those findings—that the prejudice
suffered by Trepal was insufficient to warrant a new trial. We find no
error.
Trepal II, 846 So. 2d at 426-28 (footnote omitted).
As to the quoted portions of the 3.850 court’s analysis, even those are not
entirely clear as to whether the 3.850 court mis-applied Giglio’s materiality
standard. Although the 3.850 court stated—incorrectly—that the “materiality
prong [of Giglio] is the same as that used in Brady,” its very next sentence
correctly sets forth the Giglio standard: “False information is material if ‘there is a
reasonable likelihood that it could have affected the jury verdict.’” Trepal II, 846
So. 2d at 425.
45
We need not resolve the question of the proper standard of deference to the
Florida Supreme Court’s adjudication of Trepal’s claim of Giglio error.23 Instead,
we adopt an approach the United States Supreme Court itself has employed when
a petitioner fails to show prejudice even under de novo review:
Even if the state court used an incorrect legal standard, we need not
determine whether AEDPA’s deferential standard of review, 28 U.S.C.
§ 2254(d), applies in this situation. Cf. Williams v. Taylor, 529 U.S.
362, 397–398, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). That is because,
even if AEDPA deference does not apply, Thompkins cannot show
prejudice under de novo review, the more favorable standard of review
for Thompkins. Courts cannot grant writs of habeas corpus under § 2254
by engaging only in de novo review when it is unclear whether AEDPA
deference applies, § 2254(d). In those situations, courts must resolve
whether AEDPA deference applies, because if it does, a habeas
petitioner may not be entitled to a writ of habeas corpus under
§ 2254(d). Courts can, however, deny writs of habeas corpus under
§ 2254 by engaging in de novo review when it is unclear whether
AEDPA deference applies, because a habeas petitioner will not be
entitled to a writ of habeas corpus if his or her claim is rejected on de
novo review, see § 2254(a).
Berghuis v. Thompkins, 560 U.S. —, 130 S. Ct. 2250, 2265 (2010) (emphasis
added). As was the case for the Supreme Court in Thompkins, we need not
determine whether the state supreme court used an incorrect legal standard, for we
23
We are aware that the Supreme Court has instructed us that, on federal habeas review,
we are to give state court decisions “the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. —,
131 S. Ct. 1388, 1398 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357,
360 (2002)). Our concurring colleague points out good reasons why we should conclude the
Florida Supreme Court did not apply an incorrect standard in its adjudication of Trepal’s Giglio
claim. But Trepal’s claim fails even under de novo review.
46
conclude that Trepal cannot prevail even under de novo review.
To prevail here, Trepal must show that a Giglio error resulted in “actual
prejudice” to him under the standard set forth in Brecht v. Abrahamson, 507 U.S.
619, 113 S. Ct. 1710 (1993). See Guzman II, 663 F.3d at 1347; see also Mansfield
v. Sec’y, Dep’t of Corr., — F.3d —, No. 09-12312, slip op. at 12 (11th Cir. May 9,
2012) (“On collateral review, a federal constitutional error is harmless unless there
is ‘actual prejudice,’ meaning that the error had a ‘substantial and injurious effect
or influence’ on the jury’s verdict.” (quoting Brecht, 507 U.S. at 637, 113 S. Ct. at
1722)). Even if Trepal shows part of Martz’s testimony was false about some
things, and even assuming arguendo that Martz’s false testimony (1) can be
imputed to the state prosecutor,24 and (2) was material under Giglio, Trepal has not
shown that he suffered the actual prejudice required under Brecht. We explain
below.
24
There is a substantial issue as to whether FBI Agent Martz’s knowing false testimony
can be imputed to the Florida State Attorney who prosecuted the Trepal case. See, e.g., Moon v.
Head, 285 F.3d 1301, 1309-10 (11th Cir. 2002) (noting that (1) a prosecutor has a duty to learn
of any favorable evidence known to others acting on the government’s behalf, including law
enforcement officers, and (2) thus knowledge possessed by any member of the “prosecution
team” is imputed to the prosecutor, but (3) whether knowledge held by members of one
governmental entity can be imputed to a prosecutor working for a different governmental entity
is determined using “a case-by-case analysis of the extent of interaction and cooperation between
the two governments” (quoting United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979)).
The State contends that Martz was not a part of the “prosecution team,” that he was
simply serving as an expert witness called to testify about his testing of the evidence, and that his
overstatement of his opinions was neither known nor countenanced by anyone in the State
Attorney’s office. We need not reach this issue to decide this case.
47
C. Brecht “Actual Prejudice” Standard for Federal Habeas Relief
In Brecht, the Supreme Court began by discussing its prior decision in
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967). See Brecht, 507 U.S. at
622, 630, 113 S. Ct. at 1713, 1717. The Brecht Court pointed out that Chapman
“rejected the argument that the Constitution requires a blanket rule of automatic
reversal in the case of constitutional error, and concluded instead that ‘there may
be some constitutional errors which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal
Constitution, be deemed harmless.’” Brecht, 507 U.S. at 630, 113 S. Ct. at 1717
(quoting Chapman, 386 U.S. at 22, 87 S. Ct. at 827). Accordingly, constitutional
defects in criminal trials fall into two classes: (1) “structural defects,” which
require automatic reversal of a conviction, and (2) “trial errors,” which are subject
to harmless error analysis.25 See id. at 629–30, 113 S. Ct. at 1717. The standard
25
The Brecht Court explained the distinction between trial error and structural defects:
Trial error occurs during the presentation of the case to the jury, and is amenable to
harmless-error analysis because it may be quantitatively assessed in the context of
other evidence presented in order to determine the effect it had on the trial. At the
other end of the spectrum of constitutional errors lie structural defects in the
constitution of the trial mechanism, which defy analysis by harmless-error standards.
The existence of such defects—deprivation of the right to counsel, for
example—requires automatic reversal of the conviction because they infect the entire
trial process.
Brecht, 507 U.S. at 629-30, 113 S. Ct. at 1717 (citations, quotation marks, footnotes, brackets,
and ellipsis omitted).
48
Chapman set for harmlessness of constitutional trial error was whether the
reviewing court was “able to declare a belief that [the error] was harmless beyond
a reasonable doubt.” Id. at 630, 113 S. Ct. at 1717 (quoting Chapman, 386 U.S. at
24, 87 S. Ct. at 828).
Chapman was a direct-appeal case, and until Brecht, the Supreme Court had
not had occasion to squarely address whether the Chapman “harmless beyond a
reasonable doubt” standard applied to cases on collateral review. Brecht, 507 U.S.
at 630, 113 S. Ct. at 1718. Brecht determined that Chapman’s harmless error
standard did not apply on collateral review. Id. at 623, 630–38, 113 S. Ct. at 1714,
1718–22.
Instead, the Brecht Court concluded that the appropriate harmless-error
standard for habeas review of criminal convictions was whether the constitutional
error “had substantial and injurious effect or influence in determining the jury’s
verdict.” Id. at 623, 113 S. Ct. at 1714 (quoting Kotteakos v. United States, 328
U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). The Supreme Court reasoned that
“granting habeas relief merely because there is a ‘reasonable possibility’ that trial
error contributed to the verdict is at odds with the historic meaning of habeas
corpus—to afford relief to those whom society has ‘grievously wronged’”—and
also imposes social costs and infringes on the states’ sovereignty and interest in
49
finality of judgments. Id. at 637, 113 S. Ct. at 1721 (quotation marks and citations
omitted). Moreover, “[s]tate courts are fully qualified to identify constitutional
error and evaluate its prejudicial effect on the trial process under Chapman, and
state courts often occupy a superior vantage point from which to evaluate the
effect of trial error,” and thus “it scarcely seems logical to require federal habeas
courts to engage in the identical approach to harmless-error review that Chapman
requires state courts to engage in on direct review.” Id. at 636, 113 S. Ct. at 1721.
Consequently, the Brecht Court concluded that the Kotteakos
standard—which derived from the federal harmless-error statute, 28 U.S.C.
§ 2111—was “better tailored” than the Chapman standard “to the nature and
purpose of collateral review and [was] more likely to promote the considerations
underlying [the Supreme Court’s] recent habeas cases.” Brecht, 507 U.S. at 638,
113 S. Ct. at 1722. Thus, to grant habeas relief based on constitutional trial error,
the federal habeas court must find not only that the error occurred, but that it
“resulted in ‘actual prejudice,’” that is, “the error had ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Id. at 637 (quoting
Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253; citing United States v. Lane, 474
50
U.S. 438, 449, 106 S. Ct. 725, 732 (1986)).26 The Brecht standard “is more
favorable to and less onerous on the state, and thus less favorable to the defendant,
than the Chapman harmless beyond a reasonable doubt standard.” Mansfield, slip
op. at 13 (quotation marks omitted).
Giglio error is trial error, not a structural defect. Ventura, 419 F.3d at 1278
n.3. Therefore, when considering a Giglio claim on federal habeas review, we can
grant relief on that claim only if (1) the petitioner establishes that a Giglio error
occurred, and (2) that error had “substantial and injurious effect or influence in
determining the jury’s verdict.”27 Brecht, 507 U.S. at 637, 113 S. Ct. at 1722; see
26
We do not phrase the Brecht requirement as a burden of proof, for it is not. In O’Neal v.
McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994 (1995), the Supreme Court held that if a
federal habeas court has “grave doubt” about whether a constitutional error is harmless under the
Brecht standard, which the Court defined as situations in which “the matter is so evenly balanced
that [the judge] feels himself in virtual equipoise as to the harmlessness of the error,” then “the
uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict
(i.e., as if it has a ‘substantial and injurious effect or influence in determining the jury’s
verdict’).” Id. The Supreme Court further explained:
[W]e deliberately phrase the issue in this case in terms of a judge’s grave doubt,
instead of in terms of “burden of proof.” The case before us does not involve a judge
who shifts a “burden” to help control the presentation of evidence at a trial, but rather
involves a judge who applies a legal standard (harmlessness) to a record that the
presentation of evidence is no longer likely to affect. In such a case, we think it
conceptually clearer for the judge to ask directly, “Do I, the judge, think that the error
substantially influenced the jury’s decision?” than for the judge to try to put the same
question in terms of proof burdens (e.g., “Do I believe the party has borne its burden
of showing . . . ?”).
Id. at 436–37, 115 S. Ct. at 994–95.
27
We emphasize that the Brecht standard is a harmless error test that applies to federal
habeas review of state convictions. Brecht, 507 U.S. at 634-38, 113 S. Ct. at 1720-22; Ventura,
419 F.3d at 1279 n.4. It does not apply to state courts’ review of their own convictions. Instead,
51
Guzman II, 663 F.3d 1336, 1355 (11th Cir. 2011) (“Having found the state court’s
decision was an unreasonable application of clearly established federal law, we
further find that Guzman’s claim is meritorious for all the reasons discussed
above. But this does not end our inquiry. We must next consider whether
Guzman’s Giglio claim had a substantial and injurious effect on the outcome of his
trial.”). Because we consider the Brecht question in the first instance on federal
habeas review, there is no state court Brecht actual-prejudice finding to review or
to which we should defer.28 See Mansfield, slip op. at 12 (noting that federal
habeas courts “apply a different harmless error analysis” than the Chapman
standard applied by state courts and that “[h]armlessness under the Brecht
standard is a question of law that we review de novo”). Of course, we still would
defer to the state court’s other fact findings derived from testimony, documents,
and what happened at trial and the 3.850 hearing.
Having determined that the Brecht standard applies, we now consider how it
compares with, and relates to, Giglio’s materiality standard. We note that no
the Florida courts apply the more petitioner-friendly Chapman standard of whether the
constitutional error is “harmless beyond a reasonable doubt.” See Pittman v. State, — So. 3d —,
2011 WL 2566325, at *9 (Fla. June 30, 2011); Guzman v. State, 868 So. 2d 498, 507-08 (Fla.
2003).
28
Moreover, Brecht applies in federal habeas regardless of whether or not the state court
recognized the constitutional error and applied a Chapman analysis. Fry v. Pliler, 551 U.S. 112,
121–22, 127 S. Ct. 2321, 2328 (2007).
52
Brecht analysis is needed for Brady violations, for the Supreme Court has held that
a showing of materiality under Brady necessarily establishes actual prejudice
under Brecht.29 Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566
(1995). In Kyles, the Supreme Court explained that the Brady materiality standard
“impose[s] a higher burden on the [criminal] defendant” than the Kotteakos
standard that the Court adopted for habeas review in Brecht. Kyles, 514 U.S. at
436, 115 S. Ct. at 1567; see also id. (noting that materiality test for Brady claims
“would recognize reversible constitutional error only when the harm to the
defendant was greater than the harm sufficient for reversal under Kotteakos”). In
other words, a Brady error cannot be harmless under Brecht because “‘a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different’ necessarily entails the
conclusion that the suppression must have had ‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Id. at 435, 115 S. Ct. at 1566
(quotation marks and citation omitted).
29
As mentioned above, Giglio error is a species of Brady error. But when we refer here to
“Brady violations,” we mean Brady violations that are not Giglio violations. These non-Giglio
Brady violations are sometimes referred to as Bagley violations or Brady/Bagley violations, after
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985), which established the “reasonable
probability that the result of the proceeding would have been different” materiality standard used
for Brady violations that do not involve the knowing use of or failure to correct perjured
testimony. See Kyles v. Whitley, 514 U.S. 419, 432–43, 115 S. Ct. 1555, 1565–66 (1995)
(discussing Brady and its progeny, including Bagley).
53
But the more lenient Giglio materiality standard leaves room for the
possibility that perjured testimony may be material under Giglio but still be
harmless under Brecht. See Guzman II, 663 F.3d at 1355–56 (finding Giglio
violation and then applying Brecht standard to determine whether error was
harmless); see also Rosencrantz v. Lafler, 568 F.3d 577, 584 (6th Cir. 2009)
(“[W]hile a traditional Brady materiality analysis obviates a later harmless-error
review under Brecht v. Abrahamson, courts may excuse []Giglio violations
involving known and materially false statements as harmless error.”); Gilday v.
Callahan, 59 F.3d 257, 268 (1st Cir. 1995) (“Applying [the Giglio materiality]
standard in most cases involving perjury or its equivalent will likely result in a
finding of constitutional error. Scaling that lower materiality hurdle, however, still
will leave the petitioner facing the Brecht harmless error inquiry into whether the
perjured testimony in fact had a substantial and injurious effect or influence on the
jury’s verdict. In other words, . . . it is quite possible to find a constitutional
violation, but to conclude that it was harmless.” (footnote omitted)).
We have held that the Giglio materiality standard is equivalent to the
Chapman “harmless beyond a reasonable doubt” test. Ventura, 419 F.3d at 1279
n.4. And, as the Supreme Court made clear in Brecht, the “substantial and
injurious effect or influence” test is more onerous (from the criminal
54
defendant/habeas petitioner’s point of view) than the Chapman standard. Brecht,
507 U.S. at 623, 113 S. Ct. at 1714. Thus, while a Brady error can never be
harmless under Brecht because of Brady’s higher materiality standard, a Giglio
error can be harmless under Brecht because the Giglio materiality standard is
lower than that of Brecht.
In short, we cannot grant federal habeas relief to Trepal unless (1) he shows
that Martz’s false testimony violated Giglio, and (2) we find that the Giglio error
was not harmless under Brecht.30 Because the Brecht harmlessness standard is
more strict from a habeas petitioner’s perspective than the Giglio materiality
standard, federal courts confronted with colorable Giglio claims in § 2254
petitions in many cases may choose to examine the Brecht harmlessness issue first.
We choose to do so here.
We therefore ask whether, assuming Martz’s false testimony violated
Giglio, was the Giglio error harmless under the standard set forth in Brecht.
D. Brecht Analysis
Again, the Brecht test for actual prejudice is whether the constitutional error
30
As explained above, Trepal must also show that the Florida Supreme Court’s denial of
his Giglio claim in Trepal II was contrary to Giglio, involved an unreasonable application of
Giglio, or was based on an unreasonable determination of the facts in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d). But we assume, but do not decide, for
purposes of this opinion that Trepal has satisfied those threshold requirements of § 2254(d).
55
“had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714. “To show prejudice under
Brecht, there must be more than a reasonable possibility that the error contributed
to the conviction or sentence.” Mansfield, slip op. at 27 (quoting Mason v. Allen,
605 F.3d 1114, 1123 (11th Cir. 2010)). To determine the effect on the verdict of a
constitutional error, the Court must consider the error “in relation to all else that
happened” at trial. Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1248. The question
turns on whether the Court can “say, with fair assurance,” that the verdict “was not
substantially swayed by the error”:
If, when all is said and done, the [court’s] conviction is sure that the
error did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude that substantial rights
were not affected. The inquiry cannot be merely whether there was
enough to support the result, apart from the phase affected by the error.
It is rather, even so, whether the error itself had substantial influence. If
so, or if one is left in grave doubt, the conviction cannot stand.
O’Neal, 513 U.S. at 437–38, 115 S. Ct. at 995 (quoting Kotteakos, 328 U.S. at
764–65, 66 S. Ct. at 1248) (brackets and ellipsis in O’Neal) (emphasis omitted).
The Brecht standard “does not require a showing that but for the error the
jury would have rendered a verdict in favor of the defendant.” Duest v. Singletary,
56
997 F.2d 1336, 1338 (11th Cir. 1993). Nor does it matter whether the reviewing
court believes the petitioner is guilty, for the “crucial thing is the impact of the
thing done wrong on the minds of [the jurors] . . . in the total setting.” Id. (quoting
Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1247–48). But although the Brecht
harmless error analysis “is necessarily fact-specific and must be performed on a
case-by-case basis, the erroneous admission of evidence is likely to be harmless
under the Brecht standard where there is significant corroborating evidence, or
where other evidence of guilt is overwhelming.” Mansfield, slip op. at 27–28
(citations omitted).
With this framework in mind, we consider the impact of Martz’s false
testimony on the verdict. When we do so, we readily conclude that the challenged
portions of Martz’s testimony did not have a substantial and injurious effect or
influence in determining the jury’s guilty verdict. Thus, any assumed Giglio error
was harmless.
First, we note that Trepal’s is not a typical Giglio claim. Usually (indeed, in
every Giglio case in the Supreme Court or in this Court of which we are aware), a
witness at trial gives testimony that is later shown to be demonstrably factually
false. Here, by contrast, Trepal’s core Giglio allegation is that Martz gave his
opinion at trial—that thallium nitrate was added to the Coca-Cola in samples Q1,
57
Q2, and Q3—and that opinion was held and testified to with more strength than
what his data supported, but it has not been shown to be incorrect as a matter of
fact. No one has shown either at trial or in postconviction proceedings that
thallium nitrate was not added to the Coca-Colas, or that some form of thallium
other than thallium nitrate was added to the Coca-Colas. At the 3.850 evidentiary
hearing, Martz held fast to his opinion that thallium nitrate was added, and
Trepal’s own 3.850 experts Dulaney and Whitehurst could not rule out that
possibility, but merely stated there was insufficient data to identify which thallium
salt was added. And it was undisputed that thallium in any salt is a deadly poison
and that the Carrs were poisoned with thallium. Accordingly, here the contention
is just that Martz could not truthfully have testified that thallium nitrate is the form
of thallium that was added, but only that his test results were consistent with
thallium nitrate being the form that was added.
Because the question we must answer is the influence on the jury of the
false testimony, we focus on the nature of the falsity—here, the difference
between what Martz’s testimony was and what it should have been. Specifically,
as the Florida courts correctly found, Martz: (1) testified that a positive result on
the DP test (that is, when added DP turns a solution blue) indicates the presence of
a nitrate, when Martz should have said that it indicates the presence of an
58
oxidizing ion, of which nitrate is an example; (2) testified that he ran IC tests on
Q1, Q2, and Q3, when he actually ran the IC test only on Q1 and Q2; (3) testified
there was no nitrate present in unadulterated Coca-Cola, when he should have said
that the DP test was negative but the IC indicated a nitrate could be present; (4)
testified only as to the DP and IC tests, when actually he performed additional
testing on the samples, though he did not rely on the other tests in forming his
conclusion; and (5) testified that, as a result of his testing, he concluded that
thallium nitrate was added to Q1, Q2, and Q3, when he should have testified that
the tests results for Q1 and Q2 were consistent with the presence of thallium
nitrate and the results for Q3 were consistent with the presence of thallium and an
oxidizing ion, which could be a nitrate. Notably, Martz’s conclusion about the
brown bottle Q206 that was found in Trepal’s garage—that it contained thallium I
nitrate—is not challenged.
The gap between what Martz did testify and what everyone agrees he
truthfully could have testified is narrow. For the most part, the difference is that
Martz’s testimony should have been more nuanced, more guarded, less absolute or
certain. The exception is Martz’s positive assertion that he ran the IC test on all
three samples Q1 through Q3, when in fact he did not run the IC test on Q3. But
even so, the DP result on Q3 was still consistent with the proposition that thallium
59
nitrate was added to Q3; it just made that proposition less certain. And it hardly
matters whether thallium nitrate was the form of thallium that was added to Q1,
Q2, and Q3, as opposed to just Q1 and Q2.
Furthermore, Martz’s testimony as a whole was just one small part of the
State’s evidence against Trepal. Among other things, the State established with
other witnesses, whose testimony stands unchallenged, that: (1) the Carr family
was poisoned with thallium; (2) thallium was found in the full and empty Coca-
Cola bottles in the Carrs’ home; (3) thallium is a rare and toxic element, and is
difficult to obtain because the chemical companies that sell it do not sell to
individuals; (4) a brown glass bottle containing thallium was found in Trepal’s
Alturas garage; (5) when moving into his Alturas home in 1982, Trepal had
chemicals in brown glass bottles and said he intended to set up a chemistry
laboratory in his garage; (6) Trepal had an extensive knowledge of chemistry and a
collection of chemistry paraphernalia, including glassware, bottles of toxic
chemicals, and books that discussed thallium; (7) Trepal had a homemade journal
on poisons and poison detection; (8) Trepal’s poison journal bore his fingerprints
and contained photocopies from a library book belonging to the college Trepal
attended in the 1970s, suggesting the journal pre-dated the Carr poisonings; (9)
Trepal was the chemist for a methamphetamine production ring, and thallium is
60
sometimes used in methamphetamine production; (10) Trepal did not get along
with any of the members of the Carr family, and he still exhibited anger and
animosity after the poisonings about incidents that had happened years earlier;
(11) Trepal repeatedly threatened the Carr children, and once said he would kill
them; (12) Trepal’s conflicts with the Carrs continued well into 1988, the year of
the poisonings; (13) in the middle of 1988, the Carrs received an anonymous letter
warning the whole Carr family that they would all die unless they moved away;
(14) Trepal and his wife were the Carrs’ only neighbors; (15) Trepal wrote a
Mensa “murder mystery weekend” pamphlet that discussed poisoning and a
“move-or-else” note left on a neighbor’s doorstep; and (16) Trepal’s explanation
for the Carr poisonings was “to get them to move out, like they did.”
Amid the breadth and depth of this evidence, Martz (who was one of more
than 70 witnesses during the State’s case) testified to one discrete issue: the
comparison of (1) the substance added to the full Coca-Cola bottles Q1 through
Q3, with (2) the substance found in the brown bottle Q206. The State had already
established through expert Havekost (whose work and testimony has not been
challenged or disparaged in any way) that both substances were thallium
compounds—that is, that thallium was found in Q1–Q3 and in Q206. Thallium in
any form is rare enough, as the State pointed out to the jury in its closing
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argument. Martz just further added to an already tight link by opining that the
Q1–Q3 bottles and the Q206 bottle all contained the same form of
thallium—which was thallium nitrate.31 There was no evidence at all from any
witness or source that the Q1–Q3 samples and the Q206 bottle contained different
forms of thallium.
To be sure, Martz was an important witness for the State’s case, as his
testimony went to the identification of the potential murder weapon (the substance
in Q206), which was the piece of physical evidence linking Trepal to thallium.
But Martz’s testimony that Q206 contained thallium I nitrate is not challenged.
And the other permissible testimony from Martz was highly incriminating, such as
that the Q1 and Q2 samples were consistent with the presence of thallium nitrate.
In any event, Martz’s testimony about the samples from the Q1 through Q3
Coca-Cola bottles—even to the extent it was overly strong in its conclusions—did
not, and could not, establish conclusively that the substance that had been added to
the Carrs’ Coca-Colas had come from the Q206 bottle.32 Even without Martz’s
31
To illustrate, if this case were a hit-and-run by a rare automobile instead of murder by a
rare poison, Havekost established, say, that the victims were hit by, and the defendant owned, a
red Ferrari. Martz narrowed it down to a 1982 red Ferrari, but still no one could match the
license plates.
32
The State acknowledged this point in its closing argument, stating, “Nobody can tell you
that this thallium nitrate is the thallium nitrate that was in those bottles because it’s just thallium
nitrate.” The State analogized to table salt dropped on a rug, noting that no crime scene
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testimony, Q206’s linkage of Trepal to thallium was just as strong, for Martz
neither found the Q206 bottle in Trepal’s garage (Brekke did) nor found that it
contained thallium (Havekost did). As we have pointed out, thallium in any form
is a rare and deadly poison.
The portion of Martz’s testimony that was challenged was just one narrow
part of the State’s strong case against Trepal, and any falsities in Martz’s
testimony were narrower still. Although Trepal belittles the abundant evidence
against him at trial, the Florida courts properly characterized the totality of the
evidence as “strong.” See Trepal II, 846 So. 2d at 426 (“Although this is a
circumstantial evidence case, the evidence was strong.” (quoting 3.850 court)).
In sum, we are convinced that, if any falsities in Martz’s testimony had any
effect at all upon the jury’s verdict, it was very slight. Martz’s improper testimony
certainly did not have, as the Brecht test requires, “a substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 117
S. Ct. at 1714. We are convinced of that. Thus, even assuming arguendo that
Trepal could establish a Giglio violation, we conclude that it was harmless.
technician in the world could tell whether a grain of table salt on the rug came from a particular
bottle of salt or if it was already on the floor. Trepal’s attorney Wofford Stidham also made this
point in his closing argument for Trepal, arguing, “[D]id the thallium in the Coca-Colas come
from this little bottle? The innuendo was there that it did. You heard the witness this very
morning that was asked that question, could he say the thallium in the Coca-Cola came from that
little bottle and he said no. You have to speculate.”
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Accordingly, Trepal is not entitled to habeas relief.
IV. CONCLUSION
We affirm the district court’s denial of Trepal’s § 2254 petition.
AFFIRMED.
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PRYOR, Circuit Judge, concurring:
I concur in the panel opinion because I agree that George Trepal is not
entitled to habeas relief and that any error under Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763 (1972), that occurred during Trepal’s trial was harmless. I write
separately to explain why the adjudication of Trepal’s Giglio claim by the
Supreme Court of Florida is also entitled to deference under Antiterrorism and
Effective Death Penalty Act, 28 U.S.C. § 2254(d). The Supreme Court of Florida
did not apply an incorrect standard in its adjudication of Trepal’s Giglio claim.
Nor did the Florida circuit court apply an incorrect standard in its adjudication of
Trepal’s Giglio claim. Either decision is entitled to deference under section
2254(d), and neither decision involves an unreasonable application of clearly
established federal law.
A. Nothing in the Analysis by the Supreme Court of Florida Suggests that the
Court Incorrectly Identified the Standard Applicable to Trepal’s Giglio Claim or
Applied the Incorrect Standard in Its Adjudication of Trepal’s Giglio Claim.
Trepal argues that the Supreme Court of Florida conflated the Giglio and
Brady standards of materiality in evaluating his Giglio claim, but there is nothing
in the analysis of his claim by that court to support his assertion. See Trepal v.
State, 846 So. 2d 405, 426–28 (Fla. 2003) (Trepal II). The Supreme Court of
Florida never articulated the materiality standard that it purported to apply in its
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adjudication of Trepal’s claim, and its analysis gives little insight into which
standard it actually applied in its adjudication of that claim. See id. “Where the
standards utilized by the state court are not articulated,” we “may properly assume
that the state [court] applied correct standards of federal law . . . in the absence of
evidence . . . that an incorrect standard was in fact applied.” Demps v.
Wainwright, 805 F.2d 1426, 1434 (11th Cir. 1986) (internal quotation marks
omitted). The only discussion of the Giglio and Brady standards in the opinion by
the Supreme Court of Florida appears in a section labeled “Circuit Court’s
Analysis” and is a direct quote from the opinion by the state circuit court. See
Trepal II, 846 So. 2d at 423–25. The Supreme Court of Florida neither repeated
nor otherwise adopted, in the section of its opinion labeled “This Court’s
Analysis,” the statements by the circuit court regarding the Giglio and Brady
standards. See id. at 426–28. The Supreme Court of Florida approved the factual
findings of the circuit court and agreed with the conclusion by the circuit court
“that Trepal was not impermissibly prejudiced by the testimony of Martz,” see id.,
but the Supreme Court of Florida never stated its standard for determining
prejudice.
Nor do statements that the Supreme Court of Florida made in other opinions
that adjudicated other petitioners’ Giglio claims prove that the court applied the
66
wrong standard in adjudicating Trepal’s Giglio claim. The relevant decision for
our analysis under section 2254(d) is the decision that adjudicated Trepal’s claim,
not the decisions in other appeals. See 28 U.S.C. § 2254(d) (precluding federal
habeas relief based upon “any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim” satisfies certain
requirements) (emphasis added). The relevance to our inquiry of any decision by
the Supreme Court of Florida before that court adjudicated Trepal’s claim is not
readily apparent, especially when that court did not cite any of those decisions in
its analysis of Trepal’s claim, see Trepal II, 846 So. 2d at 426–28. Cf. Ventura,
419 F.3d at 1283 (considering the conclusions of law articulated in decisions cited
by a state court in its own opinion). Although the Supreme Court of Florida
erroneously suggested that the Brady and Giglio standards were equivalent in
several opinions issued between 1991 and 2000, see, e.g., Rose v. State, 774 So.
2d 629, 635 (Fla. 2000), the opinion in Ventura v. State reveals that the Supreme
Court of Florida was aware of the distinction between the Brady and Giglio
standards in 2001—well before it adjudicated Trepal’s claim in 2003. See
Ventura v. State, 794 So. 2d 553, 563 (Fla. 2001) (quoting United States v. Alzate,
47 F.3d 1103, 1109–10 (11th Cir. 1995)). It is likewise of little relevance to our
inquiry that the Supreme Court of Florida “recede[d]” from Trepal II in a later
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decision, “to the extent” that Trepal II stood “for the incorrect legal principle that
the ‘materiality’ prongs of Brady and Giglio are the same,” because the court
neither overruled Trepal II nor declared that Trepal II was intended to—or did in
fact—stand for that principle. See Guzman v. State, 868 So. 2d 498, 505–06 (Fla.
2003).
B. Nothing in the Analysis by the Florida Circuit Court Suggests that the Court
Incorrectly Identified the Standard Applicable to Trepal’s Giglio Claim or
Applied the Incorrect Standard in Its Adjudication of Trepal’s Giglio Claim.
Even if the Supreme Court of Florida had adopted the analysis that appears
in the section of its opinion labeled “Circuit Court’s Analysis,” the Supreme Court
of Florida would not have applied the incorrect standard in its adjudication of
Trepal’s Giglio claim. The Supreme Court of the United States has made clear
that we must “presum[e] that state courts know and follow the law,” and give state
court decisions “the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24,
123 S. Ct. 357, 360 (2002). Nothing in the portion of the analysis by the circuit
court that appears in the opinion by the Supreme Court of Florida is sufficient to
overcome the presumption that the Florida courts applied the correct standard in
their adjudication of Trepal’s Giglio claim.
The circuit court correctly articulated the Giglio standard for materiality in
its explanation of Trepal’s Giglio claim. See Trepal II, 846 So. 2d at 425. The
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formulation of the standard by the circuit court deviated only slightly from the
formulation favored by the Supreme Court in that the circuit court used “a” instead
of “any” and “jury verdict” instead of “judgment of the jury,” but neither of those
minor inconsistencies could have had any effect on the analysis of Trepal’s claim.
This Court has held that the substitution of “a” for “any” is “of no consequence” in
the articulation of the Giglio standard. See Ventura, 419 F.3d at 1282. There also
is no relevant distinction between “jury verdict” and “judgment of the jury,” as
both refer to the jury’s “decision” on the issue of the defendant’s guilt. See
Oxford English Dictionary (2d ed. 1989); accord Black’s Law Dictionary (9th ed.
2009).
Although the circuit court incorrectly stated that “[t]he materiality prong
[used in Giglio] is the same as that used in Brady,” Trepal II, 846 So. 2d at 425,
this single misstatement is “insufficient” to support the conclusion that the circuit
court applied the wrong standard in its adjudication of Trepal’s claim. Cf.
Ventura, 419 F.3d at 1285–86. The circuit court offered no explanation of the
Brady materiality standard, but articulated the Giglio materiality standard in terms
that closely approximate those used by the United States Supreme Court.
Compare id. (observing that false testimony is “material if there is a reasonable
likelihood that it could have affected the jury verdict”) (internal quotation marks
69
omitted), with United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397
(1976) (observing that false testimony is material “if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury”).
That the circuit court explained the Giglio standard and not the Brady standard
suggests that, if the circuit court believed that the same standard applied to both
Giglio and Brady claims, then that so-called “same” standard was the Giglio
standard. In that case, the circuit court applied the correct standard to Trepal’s
Giglio claim.
The circuit court also applied the Giglio standard using correct terminology.
After the circuit court correctly articulated the Giglio standard at the beginning of
its discussion of Trepal’s Giglio claim, see Trepal II, 846 So. 2d at 425, the circuit
court ruled “that there [was] no reasonable likelihood that the verdict would have
been different” in either the guilt phase or the penalty phase of Trepal’s trial had
Martz not testified falsely, id. at 426. Trepal contends that the circuit court
misapplied the Giglio standard when it used the term “would” instead of “could,”
but that argument fails. The conclusion of the circuit court that “there [was] no
reasonable likelihood that the verdict would have been different” in the absence of
Martz’s false testimony, id. at 426, is a satisfactory response to the question
whether there was “any reasonable likelihood that the false testimony could have
70
affected the judgment of the jury,” Agurs, 427 U.S. at 103, 96 S. Ct. at 2397. As a
matter of logic, when answering the question posed by the Giglio standard, saying
that there is no reasonable likelihood that the verdict would have been different is
the same as saying that there is no reasonable likelihood that the verdict could
have been different. This Court too has used the term “would” in applying the
Giglio standard to reach the conclusion that false testimony did not satisfy that
standard. Sitting en banc in McCleskey v. Kemp, an appeal from a grant of habeas
corpus relief, this Court correctly stated that false testimony is material under the
Giglio standard if “it could ‘in any reasonable likelihood have affected the
judgment of the jury.’” 753 F.2d 877, 885 (11th Cir. 1985) (en banc) (quoting
Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972)). We then
applied the standard and, like the Florida circuit court that adjudicated Trepal’s
claim, concluded that the false testimony at issue was not material because it
“would have had no effect on the jury’s decision.” Id. (emphasis added). We
reversed the grant of habeas corpus relief as to the petitioner’s Giglio claim. Id.
We cannot fault the circuit court for applying the Giglio standard using the same
language that we have used when we have applied it.
C. Neither the Supreme Court of Florida Nor the Florida Circuit Court
Unreasonably Applied Clearly Established Federal Law in Its Adjudication of
Trepal’s Giglio Claim.
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Neither the Supreme Court of Florida nor the Florida circuit court
unreasonably applied the Giglio standard of materiality to Trepal’s Giglio claim
when those courts determined that there was no reasonable likelihood that Martz’s
false testimony could have affected the judgment of the jury at Trepal’s trial, see
Trepal II, 846 So. 2d at 425–28. Martz’s testimony was useful only to establish
the particular type of thallium in the three full bottles of Coca-Cola taken from the
Carr residence and the glass bottle taken from Trepal’s garage. The government
established through other witnesses that thallium in any form is rare and
unavailable to the general public and that thallium in some form had been added to
the three bottles taken from the Carr residence and was contained in the glass
bottle taken from Trepal’s garage. Fairminded jurists considering this
unchallenged testimony in combination with the wealth of unchallenged
circumstantial evidence of Trepal’s guilt presented at trial could disagree whether
Martz’s false testimony could have affected the judgment of the jury at Trepal’s
trial. Cf. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149
(2004). That “fairminded jurists could disagree on the correctness of the state
court[s’] decision[s]” means that we cannot grant Trepal federal habeas relief on
the basis of his Giglio claim. Harrington v. Richter, 562 U.S. ----, 131 S. Ct. 770,
786 (2011).
72