James Milton Dailey v. State of Florida

Supreme Court of Florida
________________________
Nos. SC20-934 & SC20-1529
________________________
JAMES MILTON DAILEY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
JAMES MILTON DAILEY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
September 23, 2021
PER CURIAM.
James Milton Dailey, a prisoner under sentence of death,
appeals the circuit court’s orders denying in part and dismissing in
part his fourth successive motion for postconviction relief and
dismissing his fifth successive motion for postconviction relief,
which were filed under Florida Rule of Criminal Procedure 3.851,
and dismissing his motion to perpetuate the testimony of Jack
Pearcy. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For
the reasons that follow, we affirm.
I. BACKGROUND
Dailey was convicted of and sentenced to death for the murder
of Shelly Boggio. The facts of the crime have been described as
follows:
Shelley Boggio’s nude body was found floating in
the water near Indian Rocks Beach in Pinellas County,
Florida. She had been stabbed repeatedly, strangled,
and drowned. On the day of the murder, Shelley, her
twin sister Stacey, and Stephanie Forsythe had been
hitchhiking along a road near St. Petersburg, Florida.
They were picked up by Dailey, Jack Pearcy, and Dwayne
“Oza” Shaw. The three men drove the girls to a local bar.
Stacey and Stephanie returned home shortly thereafter,
but Shelley remained with the group and returned to
Jack Pearcy’s house. Dailey was living in Pearcy’s home,
where he had his own bedroom. Pearcy and his
girlfriend, Gayle Bailey, shared a second bedroom. Shaw,
a friend of Pearcy’s from Kansas, was temporarily staying
at Pearcy’s house while he resolved marital issues. He
slept on a couch in the living room.
Shaw testified that on the night of the murder he
drove with Pearcy and Boggio to a public telephone
booth, where he was dropped off. Pearcy and Boggio
then drove off alone. After speaking on the phone for
several minutes, Shaw returned to the house on foot and
fell asleep on the couch. Shaw testified that when he
woke up later that night, he saw Pearcy and Dailey, but
not Boggio, entering the house together. Shaw noticed
that Dailey’s pants were wet.
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The State presented testimony from the lead
detective in the case, John Halladay, and three
informants who were inmates at the same facility where
Dailey was held while awaiting trial.
Dailey v. State, 965 So. 2d 38, 41-42 (Fla. 2007). The three inmates
testified that Dailey had admitted the killing to them individually
and had devised a plan whereby he would later confess when
Pearcy’s case came up for appeal if Pearcy in turn would promise
not to testify against him at his own trial. Dailey v. State, 594 So.
2d 254, 256 (Fla. 1991). Pearcy was tried first, convicted of first-
degree murder, and sentenced to life imprisonment. Id. He refused
to testify at Dailey’s subsequent trial. Id. Dailey presented no
evidence during the guilt phase. Id. He was found guilty of first-
degree murder, and the jury unanimously recommended death. Id.At sentencing, Dailey requested the death penalty, and the court
sentenced him to death. Id.We upheld the conviction on direct appeal, but reversed the
sentence, concluding that the trial judge had failed to give weight to
mitigating circumstances, and that two aggravators were
unsupported. Dailey, 594 So. 2d at 255, 258-59. On remand, the
trial court once again sentenced Dailey to death, and we affirmed.
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Dailey v. State, 659 So. 2d 246, 247, 248 (Fla. 1995). Dailey’s
conviction and sentence became final in 1996, when the United
States Supreme Court denied his petition for a writ of certiorari.
Dailey v. Florida, 516 U.S. 1095 (1996).
Thereafter, we affirmed the denial of Dailey’s initial motion for
postconviction relief and denied his petition for a writ of habeas
corpus. Dailey, 965 So. 2d at 41. We also affirmed the denial of his
first successive motion for postconviction relief, Dailey v. State, 247
So. 3d 390, 391 (Fla. 2018), the denial in part and dismissal in part
of his second successive motion, Dailey v. State, 279 So. 3d 1208,
1212 (Fla. 2019), cert. denied, 141 S. Ct. 689 (2020), and the denial
in part and dismissal in part of his third successive motion, Dailey
v. State, 283 So. 3d 782, 787 (Fla. 2019), cert. denied, 141 S. Ct.
234 (2020). We also denied another petition for a writ of habeas
corpus and a motion for a stay of execution. Id.On December 27, 2019, Dailey filed his fourth successive
postconviction motion, alleging that a 2019 declaration from Jack
Pearcy is newly discovered evidence that proves that Pearcy alone
murdered Boggio. Pearcy was deposed on February 25, 2020, in
advance of the evidentiary hearing. At the end of the deposition,
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Pearcy indicated that he had answered every question, had nothing
more to say, and did not want to be brought back to court to testify
in Dailey’s case. At the evidentiary hearing in March 2020, Pearcy
again refused to testify, as he has at past postconviction evidentiary
hearings involving similar claims. Neither the judge, the attorneys,
nor Pearcy’s mother and stepfather were able to persuade him to
testify.
The trial court subsequently entered an order denying in part
and dismissing in part Dailey’s fourth successive motion. With
regard to the Pearcy claim, the court found that Dailey did not
present any admissible evidence to support his claim that Pearcy
confessed to committing the murder himself even if the court were
to have considered Pearcy’s deposition. The court dismissed as
procedurally barred Dailey’s claims that former trial prosecutor
Robert Heyman had knowledge of Paul Skalnik’s prior child sexual
assault charge but allowed Skalnik’s false testimony to stand
uncorrected, and that newly discovered evidence established that
Heyman committed fraud upon the court.
After filing his notice of appeal of the denial of his fourth
successive motion, Dailey filed a fifth successive postconviction
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motion. We temporarily relinquished jurisdiction for resolution of
the fifth successive motion by the trial court. Dailey also filed in
the trial court a motion to take a deposition to perpetuate Pearcy’s
testimony. After hearing argument from the parties, the trial court
entered an order dismissing Dailey’s fifth successive motion and the
motion to perpetuate Pearcy’s testimony. The trial court found
Dailey’s fifth successive motion untimely and noted that Dailey still
had not obtained Pearcy’s testimony in an admissible form. The
trial court dismissed the motion to perpetuate as moot in light of
the dismissal of the fifth successive motion. Dailey now appeals the
denial/dismissals of his fourth and fifth successive motions and the
dismissal of his motion to perpetuate.
II. ANALYSIS
A. Heyman’s “Admission”
Dailey first argues that the trial court erred in summarily
denying his Giglio 1 claim regarding former Assistant State Attorney
Heyman’s notes from Dailey’s 1987 trial, which he alleges prove
that the State knowingly elicited false testimony from Paul Skalnik
1. Giglio v. United States, 405 U.S. 150 (1972).
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and failed to correct it, specifically, Skalnik’s testimony “that his
prior criminal charges were ‘grand theft, counselor, not murder, not
rape, no physical violence in my life.’ ” Dailey claims that the notes
tracked the testimony of Detective Halliday, who testified after
Skalnik at the trial, and had the words “sex assault(s)” crossed-out
in regard to Skalnik’s criminal history. Because Skalnik was
arrested in 1982 on a charge of lewd and lascivious assault on a
child under fourteen, for which a “no information” was
subsequently filed by the same State Attorney’s office that
prosecuted Dailey’s case, Dailey asserts that the notes and
Heyman’s “admission” to a reporter in 2020 that the notes were his
and that they were made during Dailey’s trial in 1987 prove that the
State knew Skalnik testified falsely about his prior charge and
allowed that false testimony to stand uncorrected, in violation of
Giglio. 2
2. A Giglio claim alleges that a prosecutor knowingly
presented false testimony against the defendant. Hunter v. State,
29 So. 3d 256, 270 (Fla. 2008) (citing Giglio, 405 U.S. at 153). “A
Giglio violation is demonstrated when (1) the prosecutor presented
or failed to correct false testimony; (2) the prosecutor knew the
testimony was false; and (3) the false evidence was material.”
Green v. State, 975 So. 2d 1090, 1106 (Fla. 2008) (citing Guzman v.
State, 941 So. 2d 1045, 1050 (Fla. 2006)). False testimony is
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Florida Rule of Criminal Procedure 3.851(f)(5)(B) permits the
denial of a successive postconviction motion without an evidentiary
hearing “[i]f the motion, files, and records in the case conclusively
show that the movant is entitled to no relief.” Because a
postconviction court’s decision regarding whether to grant a rule
3.851 evidentiary hearing depends on the written materials before
the court, its ruling essentially constitutes a pure question of law
and is subject to de novo review. Grossman v. State, 29 So. 3d
1034, 1042 (Fla. 2010). In reviewing a trial court’s summary denial
of a motion for postconviction relief, this Court accepts the
allegations in the motion as true to the extent that they are not
conclusively rebutted by the record. Hodges v. State, 885 So. 2d
338, 355 (Fla. 2004).
The trial court did not err in dismissing this claim as untimely
and procedurally barred. This claim is merely a repackaging of the
claim in Dailey’s 2017 successive motion that Giglio was violated
based on Skalnik’s false testimony about his criminal history at
Dailey’s trial. In 2017, Dailey alleged “that the State failed to
material “if there is a reasonable possibility that it could have
affected the jury’s verdict.” Id.-8-
correct Paul Skalnik’s false trial testimony about his criminal
history. At trial, Skalnik testified that the charges against him were
‘grand theft . . . not murder, not rape, no physical violence in my
life.’ ” Dailey, 279 So. 3d at 1216-17. Dailey asserted “that this
testimony is a significant understatement of Skalnik’s criminal
history because it omits that Skalnik had previously been charged
with lewd and lascivious [assault] on a child under fourteen years of
age.” Id. at 1217.
A Giglio claim alleges that a prosecutor knowingly presented
false testimony against the defendant. The alleged false testimony
in the 2017 claim and the instant claim is the same: Skalnik
testified that his charges were “grand theft, . . . not murder, not
rape, no physical violence in my life.” Both Giglio claims allege that
the same testimony is false. That Dailey now knows that Heyman
authored the notes does not change the fact that the alleged false
testimony is the same as it was in 2017. It is also irrelevant
whether Heyman had actual knowledge that Skalnik’s testimony
was false because that knowledge would have been imputed to
Heyman even if he did not have actual knowledge. E.g., Gorham v.
State, 597 So. 2d 782, 784 (Fla. 1992) (holding that the prosecutor
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is charged with constructive knowledge of evidence withheld by
other state agents).
Even if this claim were timely and not barred, it is without
merit because information regarding Skalnik’s lewd and lascivious
assault charge is immaterial under Giglio. As we stated in affirming
the denial of Dailey’s 2017 claim regarding Skalnik’s lewd and
lascivious assault charge,
Even assuming he could establish the first two
prongs of Giglio, Dailey’s first claim fails because
Skalnik’s testimony about his criminal history was not
material. Dailey suggests that the jury would be less
likely to believe Skalnik’s testimony about Dailey if it
knew of the lewd and lascivious [assault] charge. But
Skalnik’s credibility was already compromised because
the jury was aware that he had committed multiple
crimes. And Skalnik was not the only witness against
Dailey; two other inmates also testified that Dailey
confessed to the murder. Dailey, 594 So. 2d at 256.
Accordingly, there is no reasonable possibility that
information regarding Skalnik’s lewd and lascivious
assault charge would have affected the jury’s verdict.
Dailey, 279 So. 3d at 1217. There is still no reasonable possibility
that information regarding Skalnik’s lewd and lascivious assault
charge would have affected the jury’s verdict. Heyman’s notes have
no impact on the materiality of Skalnik’s testimony. Thus, Dailey
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cannot meet the Giglio materiality prong and is therefore not
entitled to relief on the merits of this claim.
Dailey also argues that the trial court erred in denying his
claim that Heyman’s “admission” regarding his notes constitutes
newly discovered evidence warranting relief. The trial court also
summarily denied this claim on the basis that it is procedurally
barred and that Heyman’s “admission” did not qualify as newly
discovered evidence.
In order to obtain relief based on newly discovered evidence, a
defendant must establish: (1) that the newly discovered evidence
was unknown by the trial court, by the party, or by counsel at the
time of trial and it could not have been discovered through due
diligence, and (2) that the evidence is of such a nature that it would
probably produce an acquittal or yield a less severe sentence on
retrial. Davis v. State, 26 So. 3d 519, 526 (Fla. 2009) (citing Jones
v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II); Jones v. State,
591 So. 2d 911, 915 (Fla. 1991) (Jones I)). Newly discovered
evidence satisfies the second prong of the test if it “weakens the
case against [the defendant] so as to give rise to a reasonable doubt
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as to his culpability.” Jones II, 709 So. 2d at 526 (quoting Jones I,
678 So. 2d at 315).
The trial court did not err in summarily denying this claim
because Dailey cannot establish that Heyman’s “admission” is
“evidence . . . of such a nature that it would probably produce an
acquittal or yield a less severe sentence on retrial.” In order to
constitute newly discovered evidence, the evidence must be
admissible at a retrial. Williamson v. State, 961 So. 2d 229, 234
(Fla. 2007). The trial court correctly concluded that Heyman’s
“statements are not relevant to Defendant’s guilt or innocence and
would not be admissible at a new trial.” Evidence is relevant if it
tends to prove or disprove a material fact. § 90.401, Fla. Stat.
(2020). That Heyman authored the notes does not tend to prove or
disprove a fact material to whether Dailey committed first-degree
murder. Thus, Heyman’s “admission” would not be admissible at a
retrial. And even assuming the “admission” were admissible at a
retrial, it would not weaken the case against Dailey so as to give rise
to a reasonable doubt as to his culpability.
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B. Pearcy’s 2019 Declaration
Next, Dailey argues that the trial court erred in denying his
newly discovered evidence claim based on a declaration executed by
Pearcy in December 2019, which states, “James Dailey had nothing
to do with the murder of Shelly Boggio. I committed the crime
alone. James Dailey was back at the house when I drove Shelly
Boggio to the place where I ultimately killed her.” Prior to the
evidentiary hearing on this claim, Dailey took Pearcy’s deposition in
February 2020. At the end of the deposition, Pearcy announced
that he had nothing more to say and did not want to be brought
back to court to testify in Dailey’s case. At the evidentiary hearing
in March 2020, Pearcy refused to testify despite numerous attempts
by the judge and his family to persuade him to do so, and the trial
court refused to admit the February 2020 deposition as substantive
evidence.
In denying this claim after the evidentiary hearing, the trial
court concluded that there is no new, admissible evidence that
Pearcy confessed to committing the murder by himself even if the
deposition had been admitted, because during the deposition
Pearcy repeatedly denied the truthfulness of the statement in the
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declaration that he was responsible for the murder. The trial court
also noted that in 2019, this Court held that a prior affidavit in
which Pearcy claimed sole responsibility for Boggio’s murder was
inadmissible hearsay and inadmissible as a third-party admission
of guilt under Chambers v. Mississippi, 410 U.S. 284 (1973). See
Dailey, 279 So. 3d at 1213-14.
The trial court did not err in denying this claim. In the prior
Pearcy affidavit referred to by the trial court, Pearcy affirmed in
2017, “James Dailey was not present when Shelly Boggio was
killed. I alone am responsible for Shelly Boggio’s death.” Id. at
1213. But Pearcy also refused to testify about any substantive
assertion in the affidavit at the evidentiary hearing on that claim.
After admitting that he signed the affidavit, he testified that its
contents were not true. Id. When asked to identify the untruthful
statements, he responded, “I’m not sure. There’s quite a few lines
on there.” Id. During a proffer, Pearcy stated that paragraphs one
and two of the affidavit—which listed his name and status as an
inmate and recognized that he had been convicted of murder and
sentenced to life imprisonment—were true. Id. When questioned
about the truthfulness of each remaining paragraph, Pearcy
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invoked the Fifth Amendment and refused to answer, even after the
court compelled him to do so. Id.
Following the hearing on the 2017 claim, the postconviction
court concluded that the affidavit was inadmissible hearsay and
inadmissible as a third-party admission under Chambers, and that
because Dailey had failed to provide any admissible evidence, his
claim failed the first prong of the Jones standard for newly
discovered evidence. On appeal, we “agree[d] with the circuit
court’s determination ‘that Pearcy’s affidavit is hearsay of an
exceptionally unreliable nature and does not qualify as a statement
against interest’ ” and also that it did not “qualify as a third-party
admission of guilt under Chambers.” Id.
As with the 2017 claim, the trial court here properly denied
relief because Dailey failed to introduce any admissible evidence to
support his claim that there is newly discovered evidence that
Pearcy alone committed the murder. Dailey claims that the trial
court erred in ruling that Pearcy’s 2020 deposition was inadmissible
as substantive evidence and makes a number of arguments in
support of this claim. But even if we were to assume, without
deciding, that the trial court did err in refusing to admit the
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deposition, we would still conclude that Dailey is not entitled to
relief.
During the deposition, Pearcy repeatedly denied that he was
solely responsible for the murder, contrary to what he had stated in
his December 2019 declaration. Pearcy repeatedly explained that
he lied in the 2019 declaration in order to keep Dailey from being
executed and to keep Dailey’s attorneys working on the case.
Pearcy said he did this because his own appeals were exhausted
and he had no advocacy for himself, so he hoped that Dailey’s
attorneys would keep working on Dailey’s case and possibly
discover new evidence that would ultimately help Pearcy’s case.
Thus, the deposition completely invalidates the claim that Dailey
sought to support by its admission—i.e., that “[t]he December 18,
2019 declaration of Jack Pearcy proves Mr. Dailey is innocent and
that Jack Pearcy alone murdered Shelly Boggio.”
C. “Timeline” Evidence from Pearcy’s 2020 Deposition
Next, Dailey argues that the trial court erred in denying his
claim that testimony Pearcy provided at his 2020 deposition that he
and the victim went out drinking by themselves immediately after
dropping Shaw at a phone booth constitutes newly discovered
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evidence that establishes that Dailey could not have been present at
the time and place of the victim’s death when viewed in light of
other admissible evidence. The trial court summarily denied this
claim as untimely; we agree.
“To be considered timely filed as newly discovered evidence, [a]
successive rule 3.851 motion [i]s required to [be] filed within one
year of the date upon which the claim bec[omes] discoverable
through due diligence.” Rodgers v. State, 288 So. 3d 1038, 1039
(Fla. 2019) (quoting Jimenez v. State, 997 So. 2d 1056, 1064 (Fla.
2008)). In his fifth successive motion, filed in July 2020, Dailey
framed this claim: “During Pearcy’s February 2020 Deposition,
Pearcy admitted, for the first time, that he went out drinking alone
with Shelly Boggio on the night she was murdered immediately after
dropping his friend, Oza Shaw, at a phone booth.” In a footnote to
the very next sentence of his motion, Dailey wrote, “Pearcy
originally referenced a solo outing with Boggio in a statement to
police on June 19, 1985. See Pearcy June 1985 Statement, R2
8511-12.” Indeed, Pearcy stated, under oath, in 1985, “And then,
like I said, just [Shelly Boggio] and I left. [Dailey] stayed there and
Oza [Shaw] and Gail. And [Boggio and I] went down to TI Island
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and went in some bar called Hank’s and had a beer or whatever or
a drink.” And in 1993, Pearcy testified, “I had left with Shelly, and
[Dailey], I don’t know where he was. He could have been in his
bedroom or wherever. And when Shelly and I left, Oza asked me to
drop him off to make a phone call to his ex-wife, Rose, in Kansas
and the three of us left and I dropped Oza off a couple blocks from
the house at a quick trip type store.”
Summary denial of this claim was proper because the alleged
new information has been known to Dailey since 1985 or 1993. To
the extent that Dailey claims this evidence is “new” because Pearcy
admitted going alone with the victim to Hank’s in his 1985
statement, but he claimed that this trip took place before midnight
and made no mention of taking Shaw to the pay phone, and in his
1993 statement, he acknowledged dropping Shaw at the pay phone
and thereafter being alone with the victim for an hour to an hour
and a half but made no mention of a visit to Hank’s, Dailey does not
explain why Pearcy could not have been asked, through the exercise
of due diligence, at least after the 1993 statement, whether he and
the victim visited Hank’s alone after taking Shaw to the pay phone.
Nor does he explain why it could not have been inferred in 1993
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from the 1985 and 1993 statements that the visit to Hank’s
occurred after Shaw was dropped off at the pay phone. Thus, even
if this evidence could be considered new to Dailey, he has not
demonstrated that he could not have discovered it in 1993 through
the exercise of due diligence.
D. Motion to Perpetuate
Dailey next claims that the trial court erred in dismissing his
motion to perpetuate Pearcy’s testimony, which was filed in
conjunction with his fifth successive motion. The trial court
dismissed the motion as moot due to fact that the purpose of the
deposition would have been to prepare for an evidentiary hearing on
Dailey’s fifth successive motion, which it had dismissed. “The
decision whether to grant a motion to perpetuate testimony lies
within the discretion of the trial court.” Riechmann v. State, 966 So.
2d 298, 310 (Fla. 2007) (quoting Cherry v. State, 781 So. 2d 1040,
1054 (Fla. 2000)). In light of the dismissal of Dailey’s fifth
successive motion, which we uphold today, we find no abuse of
discretion in the dismissal of Dailey’s motion to perpetuate as moot.
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E. Cumulative Error
Finally, Dailey claims that the trial court erred in failing to
conduct a cumulative error analysis. Dailey contends that he was
entitled to a cumulative analysis based on his claim that there is
newly discovered evidence that Pearcy confessed to committing the
murder by himself, ASA Heyman’s 2020 “admission,” and Pearcy’s
2020 deposition.
The trial court was correct that any alleged newly discovered
evidence must be admissible not only to satisfy the newly
discovered evidence standard and constitute newly discovered
evidence under the law but also to warrant a cumulative review of
the evidence. As discussed above, the trial court correctly
concluded that any “new” claims that Pearcy committed the murder
alone based on his 2019 declaration and 2020 deposition are
inadmissible and therefore do not constitute newly discovered
evidence or warrant a cumulative analysis. The same is true for
Heyman’s “admission,” which would also be inadmissible at a
retrial, as explained above. Because each of Dailey’s claims failed,
he was not entitled to a cumulative review of the evidence.
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As this Court stated in Dailey’s previous postconviction
appeals,
Dailey next argues that the circuit court erred in
failing to conduct a cumulative analysis. Generally, in
determining whether newly discovered evidence would
likely produce an acquittal upon retrial, a court must
evaluate “the effect of the newly discovered evidence, in
addition to all of the admissible evidence that could be
introduced at a new trial.” Hildwin v. State, 141 So. 3d
1178, 1184 (Fla. 2014). But given that all of Dailey’s
newly discovered evidence claims were either correctly
rejected as untimely or based on inadmissible evidence,
no such analysis was necessary. Thus, Dailey is not
entitled to relief on this claim.
Dailey, 279 So. 3d at 1216 (Fla. 2019); see also Dailey, 283 So. 3d
at 791. Thus, the trial court did not err here in declining to
conduct a cumulative analysis.
III. CONCLUSION
For the reasons above, we affirm the trial court’s orders
denying in part and dismissing in part Dailey’s fourth successive
motion for postconviction relief, dismissing his fifth successive
motion for postconviction relief, and dismissing his motion to
perpetuate testimony.
It is so ordered.
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CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
In this case, there was no forensic evidence linking Dailey to
Boggio’s murder, and a significant component of the State’s case
was the testimony of three inmates who were housed in the same
jail as Dailey while he awaited trial. These inmates testified that
Dailey admitted to Boggio’s murder, and given the lack of forensic
evidence, this testimony was likely essential to the jury’s finding of
guilt.
In her concurring opinion in Lightbourne v. State, 841 So. 2d
431, 443 (Fla. 2003), Justice Pariente discussed the well-known
concerns surrounding the reliability of inmate testimony. “Overall,
because of the substantial risk of recantation, the State’s reliance
on jailhouse informants to obtain convictions has the potential for
impacting both the finality of convictions and the integrity of the
judicial process.” Id. at 443. While Lightbourne involved an
inmate’s recantation of trial testimony, the underlying concern is
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the same in Dailey’s case. Inmates are commonly “willing to stretch
the truth in their own self-interest at the time of trial.” Id.Issues surrounding the trustworthiness of inmate testimony
are not novel or uncommon, nor are they unique to Florida:
Indeed, due to the suspect nature of jailhouse
testimony and the question mark such testimony has left
on the reliability of Illinois’ death convictions, the State of
Illinois Governor’s Commission on Capital Punishment
has recommended that its police, prosecutors, capital
case defense attorneys, and judges receive periodic
training on the risk of false testimony by in-custody
informants. See State of Illinois, Report of the Governor’s
Commission of Capital Punishment, at 21, 27, 28 (2002).
Lightbourne, 841 So. 2d at 443 n.10.
Although Justice Pariente (joined by Justice Shaw) concurred
specially with the majority opinion in Lightbourne affirming the
circuit court’s denial of postconviction relief, she did so while noting
that “[i]n this case, there was substantial independent evidence to
support the finding of guilt and the imposition of the death
sentence without the testimony of the informants.” Id. at 443. For
example, evidence at trial revealed that pubic hair matching
Lightbourne’s and semen consistent with his blood type were found
on the victim’s body, and that he was found in possession of a
necklace belonging to the victim. Id. at 442. No such evidence was
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presented in this case. In my view, the present case lacks such
“substantial independent evidence.” Id. at 443. Rather, Dailey’s
conviction and sentence of death exist under a cloud of unreliable
inmate testimony.
The confidence in Dailey’s conviction and sentence is further
compromised by the conflicting statements of codefendant Jack
Pearcy, who although he later denied it, admitted in 2019 to being
solely responsible for Boggio’s murder. Pearcy, who was tried first,
convicted of first-degree murder, and sentenced to life
imprisonment, executed a declaration where he stated, “James
Dailey had nothing to do with the murder of Shelly Boggio. I
committed the crime alone. James Dailey was back at the house
when I drove Shelly Boggio to the place where I ultimately killed
her.” Majority op. at 13. Although Pearcy later refused to repeat
his confession during his deposition and during the evidentiary
hearing on Dailey’s claims, his admission to being solely
responsible for Boggio’s murder, coupled with the lack of
substantial independent evidence to corroborate the testimony of
the jailhouse informants, sufficiently compromises Dailey’s
conviction and the application of the death sentence.
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Ironically, Pearcy, who was convicted by a jury of the murder
of Shelly Boggio and who thereafter confessed to the murder and
stated that Dailey was not involved, received a life sentence, while
Dailey, convicted in no small part due to the testimony of three
inmates and without substantial independent evidence, is facing
the death penalty.
While finality in judicial proceedings is important to the
function of the judicial branch, that interest can never overwhelm
the imperative that the death penalty not be wrongly imposed.
Since Florida reinstated the death penalty in 1972, thirty people
have been exonerated from death row. Death Penalty Information
Center, https://deathpenaltyinfo.org/state-and-federal-info/state-
by-state/florida (last visited Aug. 2, 2021). Thirty people would
have eventually been put to death for murders they did not commit.
This number of exonerations, the highest in the nation, affirms why
it is so important to get this case right.
I respectfully dissent.
An Appeal from the Circuit Court in and for Pinellas County,
Pat Edward Siracusa, Jr., Judge
Case No. 521985CF007084XXXXNO
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Eric Pinkard, Capital Collateral Regional Counsel, Julissa Fontán
and Natalia C. Reyna-Pimiento, Assistant Capital Collateral
Regional Counsel, Middle Region, Temple Terrace, Florida; Laura
Fernandez, New Haven, Connecticut; Cyd Oppenheimer, New
Haven, Connecticut; Seth Miller of Innocence Project of Florida,
Inc., Tallahassee, Florida; Scott A. Edelman and Stephen P. Morgan
of Milbank, LLP, New York, New York; and Joshua Evan Dubin of
Dubin Research & Consulting, Miami, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, Christina Z.
Pacheco, Timothy A. Freeland, and Stephen D. Ake, Assistant
Attorneys General, Tampa, Florida,
for Appellee
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