DANIEL CONAHAN JR v. STATE OF FLORIDA (2017)

Petitioner Daniel O. Conahan, Jr., a prisoner under sentence of death for the 1996 murder of Richard Montgomery, appeals the denial of his successive postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. In his current postconviction appeal, Conahan raises the following two issues: (1) whether the lower court erred by summarily denying his claim raised based on newly discovered evidence and related Giglio ¹ and Brady ² violations; and (2) whether action by this Court is required regarding Hurst ³ at this time.

Conahan cannot prevail on his first claim because he cannot satisfy the second prong of the two part test to obtain a new trial based on newly discovered evidence, and the evidence is not material under the Giglio or Brady standards. To obtain a new trial based on newly discovered evidence, the second prong requires that “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Johnston v. State, 27 So. 3d 11, 18 (Fla. 2010) (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Id. at 18-19 (quoting Marek v. State, 14 So. 3d 985, 990 (Fla. 2009)).

Evidence is material under Giglio “if there is any reasonable possibility that it could have affected the verdict, and the State bears the burden of proving the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt.” Rivera v. State, 187 So. 3d 822, 835 (Fla. 2015). Under Brady, “[t]o establish the materiality prong, a defendant must demonstrate a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. In other words, evidence is material under Brady only if it undermines confidence in the verdict.” Id. at 838.

Here, in Burden's November 2015 affidavit, Burden explained that he would not have testified voluntarily but for a promise from the prosecutor to write a letter to the parole board on Burden's behalf. Burden did not recant his testimony that Conahan tied him to a tree and attempted to sodomize and strangle him. Moreover, there was physical evidence corroborating Burden's testimony, including scars around Burden's neck and indentations around the tree from the rope that Conahan used to restrain and to attempt to strangle Burden. Additionally, the trier-of-fact was already aware from Burden's testimony that Burden hoped that by testifying he would get documentation illustrating his cooperation that he could contribute to his court file and prison record and that he planned to inform the parole board about his cooperation in the Montgomery case.

Accordingly, we affirm the denial of Conahan's first claim because the alleged newly discovered evidence would not probably produce an acquittal or a less severe sentence, there is not a reasonable possibility that it could have affected the result, and our confidence in the outcome is not undermined. See Kormondy v. State, 154 So. 3d 341, 352–53 (Fla. 2015); State v. Woodel, 145 So. 3d 782, 806–07 (Fla. 2014); Ponticelli v. State, 941 So. 2d 1073, 1085–86, 1088-89 (Fla. 2006).

As to Conahan's second claim under Hurst, the lower court denied it without prejudice as premature because this Court had not yet ruled on the retroactivity of Hurst. Here, both Conahan and the State request the Court not to address Hurst on appeal. Because Hurst is not raised, by agreement of the parties to address at a later time if appropriate, we do not address Hurst in this case without prejudice to the parties to raise a claim under Hurst in a different proceeding.

It is so ordered.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court

cd

Served:

JASON JAY KRUSZKA

WILLIAM MCKINLEY HENNIS, III

TIMOTHY ARTHUR FREELAND

HON. BARBARA SCOTT, CLERK

CYNTHIA ANN ROSS

HON. MICHAEL THOMAS MCHUGH, CHIEF JUDGE

HON. DONALD HERBERT MASON, JUDGE

FOOTNOTES

1.   Giglio v. United States, 405 U.S. 150 (1972).

2.   Brady v. Maryland, 373 U.S. 83 (1963).

3.   Hurst v. State, 202 So. 3d 40 (Fla. 2016).

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.