MERYL S. MCDONALD Appellant(s) v. STATE OF FLORIDA Appellee(s)
Meryl S. McDonald, a prisoner under sentence of death for the 1994 first-degree murder of Dr. Louis Davidson, appeals the circuit court's order dismissing his motion to hold in abeyance his third motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Among the evidence presented against McDonald at trial was a gray sweatshirt found in his hotel room which was stained with the victim's blood and contained fiber from the victim's carpet and cashmere coat as well as hairs matching McDonald's hair samples.
The validity of the evidence on which the State relied to link the sweatshirt to McDonald has been a theme in McDonald's postconviction proceedings. For example, in his initial postconviction motion, McDonald included several challenges to his trial counsel's effectiveness regarding the hair and fiber evidence. McDonald v. State, 952 So. 2d 484, 494-98 (Fla. 2006). The circuit court denied all relief, and this Court on appeal affirmed. Id. Then, in his successive postconviction motion, McDonald raised several claims regarding this evidence, including one alleging that the State failed to disclose an FBI report which McDonald contends proves that the State's DNA expert gave false testimony that the DNA in a bloodstain on the sweatshirt matched the victim's DNA. McDonald v. State, No. SC12-1761, 2013 WL 2420798, at *1 (Fla. May 28, 2013), cert. denied, 134 S. Ct. 438 (2013). The circuit court summarily denied the motion as procedurally barred and untimely, and this Court affirmed. Id. Finally, in his third rule 3.851 motion, which is at issue in this appeal, McDonald raises two claims regarding this evidence: he asserts that he was denied due process due to Brady 1 and Giglio 2 violations based on the State's knowing use of fabricated evidence at trial, namely (1) false testimony concerning DNA testing which identified the victim's blood on the sweatshirt and a fabricated FBI lab report that corroborated that testimony; and (2) falsified hair and fiber analysis and trial testimony showing the victim's cashmere coat fiber and McDonald's hair samples matched the fiber and hair found on the sweatshirt.
However, after filing his third rule 3.851 motion, McDonald requested that the circuit court hold the motion in abeyance pending his receipt of anticipated materials from the FBI that would allegedly constitute newly discovered evidence and support the claims raised in his motion by establishing that the hair and fiber analysis evidence presented at his trial had been fabricated. The circuit court denied McDonald's third rule 3.851 motion, finding McDonald's claims were untimely and successive, and dismissed the motion to hold in abeyance as moot.
In this appeal, McDonald concedes that his third rule 3.851 motion is meritless and does not challenge its denial. However, McDonald argues that the circuit court should have held the motion in abeyance pending his receipt of the alleged forthcoming materials from the FBI. We find no abuse of discretion here. See Walton v. State, 3 So. 3d 1000, 1012 (Fla. 2009) (explaining that a circuit court is not required to “perpetually hold resolution of a motion in abeyance pending an unfiled amendment to the motion”). Therefore, we affirm the circuit court's order dismissing McDonald's motion to hold his third rule 3.851 motion in abeyance.
We further note that, during the pendency of this appeal, McDonald received some of the anticipated materials from the FBI and filed a fourth rule 3.851 motion, which is currently being held in abeyance pending the resolution of this appeal. McDonald is presently unrepresented by counsel, and may not proceed pro se. See Gordon v. State, 75 So. 3d 200, 202 (Fla. 2011) (holding that “death-sentenced appellants may not appear pro se in any postconviction appeals”). Therefore, we order the trial court to appoint counsel for McDonald.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
A True Copy
John A. Tomasino Clerk, Supreme Court
TIMOTHY ARTHUR FREELAND
JOSE RAFAEL RODRIGUEZ
MERYL S. MCDONALD
FREDRICK LAYTON SCHAUB
HON. KEN BURKE, CLERK
DAMIEN NAGLE KRAEBEL
HON. CHRIS THOM HELINGER, JUDGE
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Giglio v. United States, 405 U.S. 150 (1972).
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.