Stephen Todd Booker v. State of Florida

Supreme Court of Florida
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No. SC21-763
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STEPHEN TODD BOOKER,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

February 3, 2022
CORRECTED OPINION

PER CURIAM.

Stephen Todd Booker—a prisoner under sentence of death—

appeals the trial court’s summary denial of his sixth successive

motion for postconviction relief, filed under Florida Rule of Criminal

Procedure 3.851. 1 We affirm.

I. Background

In 1978, Booker broke into ninety-four-year-old Lorine

Harmon’s home and then raped and murdered her. We

1. We have jurisdiction. See art. V. § 3(b)(1), Fla. Const.
summarized the facts surrounding the murder and ensuing

investigation as follows:

The victim, an elderly woman, was found dead in
her apartment in Gainesville, Florida. The cause of death
was loss of blood due to several knife wounds in the
chest area. Two knives, apparently used in the homicide,
were embedded in the body of the victim. A pathologist
located semen and blood in the vaginal area of the victim
and concluded that sexual intercourse had occurred
prior to death. The apartment was found to be in a state
of disarray; drawers were pulled out and their contents
strewn about the apartment. Fingerprints of [Booker]
were positively identified as being consistent with latent
fingerprints lifted from the scene of the homicide.
[Booker] had a pair of boots which had a print pattern
similar to those seen by an officer at the scene of the
homicide.
Test results indicated that body hairs found on the
clothing of [Booker] at the time of his arrest were
consistent with hairs taken from the body of the victim.
After being given the appropriate warnings, [Booker]
made a statement, speaking as an alternative personality
named “Aniel.” The “Aniel” character made a statement
that “Steve had done it.”

Booker v. State, 397 So. 2d 910, 912 (Fla. 1981).

Following Booker’s arrest, the State charged him with

first-degree murder, sexual battery, and burglary. Booker pled not

guilty, and his case proceeded to trial. In establishing its case

against Booker, the State relied on several pieces of forensic

evidence. As relevant here, the State called FBI Agent Robert Neil—

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a microscopic hair comparison analyst. Agent Neil gave testimony

on the significance of the hair fragments, which police found on and

around the victim. During Agent Neil’s direct examination, the

State asked him how the hair fragments connected Booker to the

crime, resulting in the following exchange:

[Prosecutor:] Let me know show you State’s Exhibit 51
again previously identified as a black hair removed from
the vagina of the deceased. Did you attempt to compare
that with the known pubic hair samples of the defendant
in this case[?]
[Agent Neil:] Excuse me. I had to review my notes a little
bit to refresh my memory. I found a black head hair
fragment in Exhibit 51 which I can identify as being from
a person of the black race. However, due to the limited
size, I cannot go any further than that with respect to
stating whether or not it could have come from a
particular individual in this case, Mr. Booker.

(Emphasis added.)

In addition to his testimony, Agent Neil also wrote a report

summarizing his findings, which the State provided to Booker in

discovery. The State referenced Agent Neil’s testimony and his

report in its closing argument summarizing the evidence linking

Booker to the crimes.

Ultimately, the jury convicted Booker of each charged offense

and recommended a sentence of death for Harmon’s murder.

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Accepting that recommendation, the judge sentenced Booker to

death.

On direct appeal, we affirmed Booker’s convictions and

sentences in all respects. However, the Eleventh Circuit Court of

Appeals later vacated Booker’s death sentence. Booker v. Dugger,

922 F.2d 633, 636 (11th Cir. 1991). After the new penalty phase, a

jury again recommended a sentence of death, which the trial court

accepted. We affirmed the sentence, which became final in 2001.

Booker v. Florida, 532 U.S. 1033, 1033 (2001) (denying petition for

certiorari review).

Since that time, Booker has sought postconviction relief in

both state and federal courts, without success. See Booker v. State,

969 So. 2d 186 (Fla. 2007); Booker v. Fla. Dep’t of Corr., 684 F.3d

1121 (11th Cir. 2012); Booker v. State, 252 So. 3d 723 (Fla. 2018).

This case involves Booker’s most recent postconviction

challenge which focuses on the microscopic hair comparison

evidence presented at his trial. While pursuing this challenge,

Booker obtained a 2013 report from the Department of Justice

(DOJ), secured Agent Neil’s report and handwritten notes, and

retained a microscopist. The microscopist, Jason Beckert, reviewed

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the report and notes, police reports about the crime, as well as

scientific studies regarding microscopic hair comparison analysis.

He then generated a report, summarizing scientific conclusions

regarding the unreliability of microscopic hair comparison analysis,

and opining that Agent Neil’s handwritten notes conflicted with his

trial testimony.

Based on the foregoing investigation, Booker filed a successive

postconviction motion raising two claims. He argues that the State

suppressed Agent Neil’s handwritten notes as well as the scientific

unreliability of his trial testimony in violation of Brady v. Maryland,

373 U.S. 83 (1963). Alternatively, Booker asserts that Agent Neil’s

notes and Beckert’s report constitute newly discovered evidence

under Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).

Regarding Booker’s Brady claim, the trial court found that

Agent Neil openly relied on the notes during his testimony, and

thus, Booker should have been aware of the notes and could have

obtained them at that time. 2 The trial court rejected Booker’s newly

2. The trial court further found that Agent Neil’s handwritten
notes did not constitute favorable evidence and that Booker suffered
no prejudice from their nondisclosure.

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discovered evidence claim on similar grounds. Having rejected both

claims, the court denied the motion.

This appeal follows.

II. Analysis

Booker argues that the trial court erred in summarily denying

his successive postconviction motion. We disagree.

A trial court should hold an evidentiary hearing on a rule

3.851 motion where “the movant makes a facially sufficient claim

that requires a factual determination.” Rogers v. State, 327 So. 3d

784, 787 (Fla. 2021) (quoting Pardo v. State, 108 So. 3d 558, 560

(Fla. 2012)). 3 With this principle in mind, we now assess Booker’s

claims.

To establish a Brady violation, Booker must show “(1) that

favorable evidence, either exculpatory or impeaching, (2) was

willfully or inadvertently suppressed by the State, and (3) because

the evidence was material, the defendant was prejudiced.” Sweet v.

State, 293 So. 3d 448, 451 (Fla. 2020) (quoting Dailey v. State, 283

3. We review the summary denial of a postconviction motion
de novo. Boyd v. State, 324 So. 3d 908, 913 (Fla. 2021) (citing
Tompkins v. State, 994 So. 2d 1072, 1081 (Fla. 2008)).

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So. 3d 782, 789 (Fla. 2019)). For Brady purposes, 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.” Mordenti v. State, 894 So. 2d 161, 170 (Fla.

2004) (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)).

A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id. at 175 (quoting Guzman v. State,

868 So. 2d 498, 506 (Fla. 2003)).

As we have held, the defendant carries the burden to prove

each element of his Brady claim. See Hurst v. State, 18 So. 3d 975,

988 (Fla. 2009). Thus, the trial court may summarily deny a Brady

claim where the motion, files, and record conclusively refute any of

the three Brady prongs. See Fla. R. Crim. P. 3.851(f)(5)(B); Boyd,

324 So. 3d at 913; Morris v. State, 317 So. 3d 1054, 1071 (Fla.

2021); Jimenez v. State, 265 So. 3d 462, 474 (Fla. 2018).

As a threshold matter, “[t]here is no Brady violation where the

information is equally accessible to the defense and the

prosecution.” Morris, 317 So. 3d at 1071 (alteration in original)

(quoting Peede v. State, 955 So. 2d 480, 497 (Fla. 2007)).

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Here, the trial transcript demonstrates that Agent Neil

expressly used his handwritten notes to refresh his recollection

during his direct examination. Consequently, Booker’s counsel

could have examined the notes at that time. Therefore, the record

conclusively refutes Booker’s claim that the State suppressed the

notes. See Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993)

(finding no suppression where the State’s expert referenced his

notes at trial and used them while testifying). 4

For similar reasons, Booker’s newly discovered evidence claim

also fails. Under Jones, to establish that evidence is newly

discovered, the movant must establish that “(1) the evidence was

unknown by the trial court, party, or by counsel at the time of trial,

and it must appear that [the] defendant or his counsel could not

have known of it by the use of diligence, and that (2) the evidence is

4. The right to examine the items a witness uses to refresh his
recollection existed at the time of Booker’s original trial. See Allen
v. State, 243 So. 2d 448, 449-50 (Fla. 1st DCA 1971) (“ ‘The
opposite party in both criminal and civil cases has a right to see
and examine the memorandums [sic] used by a witness, so as to be
in a position to cross-examine the witness in regard to the
testimony given on direct examination’. . . . [B]asic principles of fair
play . . . require that the opposite party be permitted to examine the
notes . . . so that the accuracy of his statements may be verified.”
(quoting 35 Fla. Jur. Witnesses § 180, at 279 (1961))).

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of such a nature that it would probably produce an acquittal on

retrial.” Smith v. State, 46 Fla. L. Weekly S310, S317 (Fla. Oct. 21,

2021) (citing Jones, 709 So. 2d at 521). Neither Agent Neil’s notes

nor Jason Beckert’s report satisfies this standard.

Booker has known about Agent Neil’s notes since his original

trial. Thus, through reasonable diligence—such as asking to review

the notes—Booker’s counsel could have discovered this evidence

over 40 years ago. See Dailey, 283 So. 3d at 790 (denying newly

discovered evidence claim where the defendant could have

discovered the allegedly exculpatory evidence earlier).

Beckert’s report does not constitute newly discovered evidence,

either. As the report itself states, “[i]t has been recognized since the

dawn of the field [of microscopic hair comparison analysis] that

individualization of hairs is not possible through microscopy alone.”

Thus, the information Booker asserts is newly discovered has been

available at least since the time of his original trial. This fact alone

demonstrates that the report is not newly discovered under Jones.

See Martin v. State, 322 So. 3d 25, 38 (Fla. 2021) (“Jones claims . . .

are premised on an allegation that the jury did not hear previously

unavailable evidence material to guilt or innocence, and that the

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introduction of such evidence would probably have led to the

defendant’s acquittal.”) (emphasis added)). 5

In sum, Booker’s Brady and Jones claims lack merit.

III. Conclusion

For the reasons given above, we affirm the trial court’s order

summarily denying Booker’s sixth postconviction motion.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.

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

An Appeal from the Circuit Court in and for Alachua County,
William E. Davis, Judge – Case No. 011977CF002332AXXXXX

Linda McDermott and Christine Yoon, Capital Habeas Unit, Office
of the Federal Public Defender, Northern District of Florida,
Tallahassee, Florida,

for Appellant

5. Additionally, Beckert’s report merely offers a new expert
opinion on studies that have been available for decades. This Court
has found that such new opinions do not constitute newly
discovered evidence. See Asay v. State, 210 So. 3d 1, 23 (Fla.
2016). (“Merely obtaining a new expert to review the same records
does not create newly discovered evidence.”); see also Schwab v.
State, 969 So. 2d 318, 325 (Fla. 2007) (“[T]his Court has not
recognized ‘new opinions’ or ‘new research studies’ as newly
discovered evidence.”).

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Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, Florida,

for Appellee

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