Toney Deron Davis v. State of Florida

Supreme Court of Florida
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No. SC2024-1128
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TONEY DERON DAVIS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

July 17, 2025

PER CURIAM.

Toney Deron Davis, a prisoner under sentence of death for the

1992 murder of two-year-old Caleasha Cunningham, appeals the

circuit court’s order summarily denying his fourth successive

motion for postconviction relief, filed under Florida Rule of Criminal

Procedure 3.851. Davis claims that the contents of certain

microscopic slides generated by the medical examiner during the

victim’s autopsy in 1992 constitute newly discovered evidence that

“disproves the State’s theory of the case, including the cause of

death.” Davis also claims that the contents of the slides were
suppressed by the State in violation of Brady v. Maryland, 373 U.S.

83 (1963). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

For the reasons explained below, we affirm.

I. BACKGROUND

Davis was convicted of first-degree felony murder, aggravated

child abuse, and sexual battery, stemming from events that

occurred on December 9, 1992. Davis v. State, 703 So. 2d 1055,

1056 (Fla. 1997); see id. at 1056-57 (recounting the evidence

presented at Davis’s trial). On that day, Davis was alone with the

victim in her mother’s apartment. Id. at 1056. After a 911 call

made by Thomas Moore—an acquaintance of Davis’s who testified

that he (Moore) went to the apartment that day, “that Davis

answered the door with the victim draped over his arm,” and that

“Davis told him [the victim] had choked on a french fry,” id.—rescue

personnel arrived at the apartment and found the victim

unconscious, wet, naked from the waist down, and with blood both

in her mouth and coming from her vaginal canal, id. at 1056-57,

1060. There was blood in various areas of the apartment, and

“[t]here was blood which was found to be the victim’s on the crotch

region of the shorts Davis was wearing and on his underwear.” Id.

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at 1057.

When the victim was taken to the hospital on December 9, she

had “bruising, swelling of the brain, and pools of blood in the skull.”

Id. She died the next day. Id. The medical examiner, Dr. Bonifacio

Floro, concluded that the victim died from a cerebral hemorrhage

caused by “four separate blows to the head.” Id.

For his part, Davis, who told others he was alone with the

victim, testified that he left the victim and Moore alone in the

apartment and “that when he returned, Moore was gone and [the

victim] was having a seizure.” Id. at 1056. Davis further testified

that he “accidentally dropped [the victim] in the shower” while

attempting to revive her. Id. The jury rejected Davis’s testimony,

found him guilty, and recommended a sentence of death for the

murder—a sentence that the trial court imposed. See id. at 1057.

This Court affirmed in 1997. Id. at 1062.

In 2014, this Court affirmed the denial of Davis’s initial motion

for postconviction relief and denied Davis’s first state habeas

petition. Davis v. State, 136 So. 3d 1169, 1209 (Fla. 2014). During

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its discussion of certain Brady and Giglio1 claims raised by Davis,

this Court noted the “[o]verwhelming” and “ample” evidence

presented by the State that a severe beating and the victim’s fatal

injuries occurred on December 9, 1992. Id. at 1185, 1189-90. And

in rejecting a “claim that trial counsel was ineffective for failing to

present—as Davis’s primary defense—the theory that Moore was

responsible,” and for instead “argu[ing] an accidental death theory,”

id. at 1192, this Court concluded in part that “the evidence created

the impression that Davis manufactured his defense of blaming

Moore as the investigation progressed,” id. at 1193.

In 2017, this Court affirmed the summary denial of Davis’s

first successive motion for postconviction relief. Davis v. State, No.

SC16-264, 2017 WL 656307, at *2 (Fla. Feb. 17, 2017). Although

Davis’s initial motion had faulted trial counsel for advancing “an

accidental death theory,” Davis, 136 So. 3d at 1192, Davis’s first

successive motion included a “claim that newly discovered

evidence . . . support[ed] his own theory that the victim’s fatal

injuries resulted from an accidental fall or prior abuse,” Davis, 2017

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

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WL 656307, at *1. In any event, this Court concluded in part that

the evidence was not material, given the “ample evidence at trial

that Davis committed each of the acts charged.” Id.

Davis’s second successive motion was summarily denied, and

he did not appeal. Instead, he petitioned this Court for a writ of

habeas corpus, which this Court denied in 2018. Davis v. Jones,

235 So. 3d 301, 301 (Fla. 2018).

Most recently, in 2020, we affirmed the summary denial of

Davis’s third successive motion. Davis v. State, 304 So. 3d 281,

282 (Fla. 2020). There, Davis presented a Brady claim and a Giglio

claim involving a State witness, Janet Cotton, who recanted her

trial testimony. Id. at 284. Davis attached to his motion not just

an affidavit from Cotton, but certain additional evidence, including

a 2019 Report of Consultation from Dr. Jonathan L. Arden (a

forensic pathologist), who disputed the scientific validity of the

medical testimony presented by the State at trial. Dr. Arden

opined, for example, that “the demonstrated head injuries were not

sufficient to cause death.” This Court ultimately concluded that

Davis’s claims regarding Cotton both “fail[ed] on the materiality

prong.” Id. at 285. As to the Giglio claim, this Court further

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concluded that Cotton’s statement lacked materiality even if

“considered cumulatively with evidence presented in prior

postconviction claims.” Id. at 285 n.3. And as to the Brady claim,

this Court dismissed “[t]he additional evidence” Davis presented,

concluding that it was “barred,” “immaterial,” “or untimely or

otherwise improperly presented.” Id. at 286 n.4.

In the instant motion, Davis raised a Brady claim and a claim

of newly discovered evidence. Both claims rely on a supplemental

report produced by Dr. Arden in 2022 after Dr. Arden examined the

autopsy slides from 1992. In his supplemental report, Dr. Arden

concluded that the slide contents are consistent with the victim

having pre-admission pneumonia, which possibly explains her

respiratory distress. Although Dr. Arden concluded that the victim

“had pneumonia when she died,” Dr. Arden was more equivocal in

terms of the onset of the pneumonia. At one point, Dr. Arden

seemingly conceded that “the pneumonia could have developed

during the one day in the hospital when the child was comatose on

the ventilator.” Elsewhere, Dr. Arden noted that the victim

“possibly [had] a developing pneumonia,” which “could have been a

cause of her respiratory distress and collapse.” In any event, the

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gist of Davis’s motion was that “a hypoxial event” (in this case,

caused by a viral infection) rather than blunt trauma to the head is

more consistent with the findings in the victim’s brain.

Davis’s appendix to the instant motion included Dr. Arden’s

supplemental report and numerous other items, some of which

Davis included in his prior motion. One item was imaging reports,

completed during the victim’s hospitalization, suggesting “that the

intubation of the child may have contributed to some lung injuries,”

that one tube was placed in the wrong location, and that the

victim’s lungs started to clear once that tube was moved.

Davis presented the instant claims in the face of a significant

obstacle. That is, the 1992 autopsy report, which was provided to

the defense decades ago, not only revealed the existence of the

slides but also included Dr. Floro’s finding of pneumonia. Davis

sidesteps those facts by arguing that, until recently, he had no

reasonable ground on which to have the slides examined, given that

Dr. Floro “essentially testified” pretrial that “he believed [the victim]

contracted [the pneumonia] after admission,” and that he told “the

jury that he did not see ‘any evidence of lung disease.’ ”

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The circuit court was unconvinced. After a Huff2 hearing, the

court summarily denied Davis’s motion. The court denied Davis’s

Brady claim on the ground that Davis failed to establish that the

slides were “willfully or inadvertently suppressed.” The court

reasoned that “the slides were disclosed” and “available for

examination,” and that a new expert examining the slides and

reaching a different conclusion than the State’s expert “does not

create a Brady violation.” As to Davis’s claim of newly discovered

evidence, the court concluded that Davis failed to establish either

that the evidence could not have been known by the use of due

diligence, or that the evidence was of such nature as to probably

produce an acquittal or life sentence on retrial. Regarding

materiality, the court analogized Davis’s argument to his french-fry-

based argument rebutted at trial. The court then explained why

“[t]he victim’s injuries have never been consistent with accident or

illness,” including that she “was naked from the waist down” and

that her “blood was in [Davis’s] shorts and underwear.”

This appeal followed.

2. Huff v. State, 622 So. 2d 982 (Fla. 1993).

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II. POSTCONVICTION APPEAL

Our standard of review of the summary denial of a successive

rule 3.851 motion is de novo. Bogle v. State, 322 So. 3d 44, 46 (Fla.

2021) (citing Duckett v. State, 231 So. 3d 393, 398 (Fla. 2017)). “[A]

summary denial will be upheld if the motion is legally insufficient or

procedurally barred, or if its allegations are conclusively refuted by

the record.” Sparre v. State, 391 So. 3d 404, 405 (Fla. 2024) (citing

Morris v. State, 317 So. 3d 1054, 1071 (Fla. 2021)). And in a case

like this, “when a defendant brings any claim in a successive

motion more than one year after the judgment and sentence

became final, he must meet an exception to the time-limit rule—

otherwise, the claim is barred.” Stein v. State, 406 So. 3d 171, 174

(Fla. 2024) (citing Fla. R. Crim. P. 3.851(d)(2), (e)(2)).

Here, neither claim brought by Davis meets an exception to

the time-limit rule. Both claims are thus barred as untimely. Both

claims also fail on the merits. Accordingly, we affirm.

A. Brady claim

Davis’s Brady claim is untimely. The relevant exception to the

time-limit rule here is “if the facts supporting the claim ‘were

unknown to the [defendant] and could not have been ascertained by

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the exercise of due diligence.’ ” Id. (alteration in original) (quoting

Fla. R. Crim. P. 3.851(d)(2)(A)). Davis’s claim does not fall within

that exception. Davis knew not just of the slides but of the medical

examiner’s finding of pneumonia. The defense obviously could have

examined the slides, including for the purpose of rebutting the

medical examiner’s testimony. See id. (concluding that Brady claim

was untimely where defendant “had access to” relevant witnesses

“and could have questioned” them regarding the matter).

Davis’s Brady claim also fails on the merits. “To prevail on

this claim, [Davis] must demonstrate that (1) favorable evidence

which is exculpatory or impeaching, (2) was suppressed by the

State, and (3) because the evidence was material, he was

prejudiced.” Hutchinson v. State, 343 So. 3d 50, 54 (Fla. 2022)

(citing Sweet v. State, 293 So. 3d 448, 451 (Fla. 2020)). Davis

asserts that the State suppressed not the slides but “the

information contained within the slides.” Davis falls far short of

establishing that the State suppressed favorable evidence.

The only case law Davis offers in his initial brief supports

general Brady propositions. In his reply brief, Davis attempts to

distinguish cases cited by the State, including Floyd v. State, 18 So.

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3d 432 (Fla. 2009), and Tompkins v. State, 872 So. 2d 230 (Fla.

2003). But those cases undermine Davis’s claim. Indeed, they

stand for the proposition that “evidence is not suppressed where the

defendant was aware of the information.” Floyd, 18 So. 3d at 451

(citing Way v. State, 760 So. 2d 903, 911 (Fla. 2000); Tompkins, 872

So. 2d at 239; Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993)).

Floyd, for example, rejected a Brady claim predicated on the State’s

purported failure “to advise defense counsel of the ‘differing’

statements by [a witness].” Id. at 450. Floyd concluded that the

defendant “was aware of the existence and content of the taped

interview with [the witness].” Id. at 451. Floyd thus reasoned that

because the defendant never requested the tape, “it could not have

been ‘suppressed.’ ” Id.

Here, Davis was aware of the existence of the slides and the

evidence of pneumonia. Davis could have requested the slides so a

defense expert could examine them to potentially rebut the medical

examiner’s opinions. No evidence was suppressed.

Davis seeks to distinguish Floyd and other cases by arguing

that he requested but “received inaccurate information” in the form

of Dr. Floro’s opinion that, among other things, the victim

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contracted pneumonia after her admission to the hospital. Davis

thus claims he “had no reasonable basis to think the slides

contained any exculpatory information until his expert alerted him

to Dr. Floro’s faulty testimony.” 3 But defendants routinely cross-

examine State witnesses to expose “faulty testimony.” There is no

reason why Davis could not have done so—especially given his

claim that the victim’s respiratory distress had nothing to do with

blunt trauma to the head.4

Although not addressed by the circuit court, Davis’s claim also

fails the “material” prong. This Court has consistently said—

including in 2020—that the State provided overwhelming or ample

evidence. See, e.g., Davis, 304 So. 3d at 285-86 (concluding that

Davis’s Brady claim regarding Cotton’s testimony “fail[ed] on the

materiality prong,” given the “ample evidence that Davis

3. To the extent Davis asserts a Giglio claim regarding Dr.
Floro’s testimony, the claim is inadequately briefed and was never
presented below.

4. Davis’s attempt to label Dr. Floro’s conclusions as
“inaccurate” is not exactly supported by Dr. Arden’s supplemental
report, which is somewhat equivocal in nature. Again, Dr. Arden at
one point conceded “the pneumonia could have developed . . . in the
hospital.” (Emphasis added.)

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intentionally injured the victim on [the day of the murder]”). Dr.

Arden’s supplemental opinion that the victim’s pneumonia possibly

developed pre-admission does not change our conclusion.

B. Newly discovered evidence

Davis’s claim that the slide contents constitute newly

discovered evidence under Jones v. State, 709 So. 2d 512 (Fla.

1998), is also untimely for having been brought outside the one-

year time-limit rule. As with his Brady claim, Davis fails to offer

any plausible basis on which to conclude that he falls within the

exception where “the facts on which the claim is predicated were

unknown to [Davis] and could not have been ascertained by the

exercise of due diligence.” Fla. R. Crim. P. 3.851(d)(2)(A); see Stein,

406 So. 3d at 175 (concluding that, just as defendant’s Brady claim

failed to meet the time-limit exception in rule 3.851(d)(2)(A) and was

thus untimely, so too was defendant’s newly discovered evidence

claim, which “relie[d] on the same rule 3.851 time-limit exception”).

Davis’s claim also fails on the merits. The Jones test for a

facially sufficient claim “proceeds in two parts.” Stein, 406 So. 3d

at 175. The first prong requires that “the evidence must not have

been known by the trial court, the party, or counsel at the time of

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trial, and it must appear that the defendant or defense counsel

could not have known of it by the use of diligence.” Id. (quoting

Long v. State, 183 So. 3d 342, 345 (Fla. 2016)). Under the second

prong, depending on whether the defendant seeks to vacate the

conviction or sentence, respectively, the defendant must show that

the evidence is “of such [a] nature that it would probably produce

an acquittal on retrial,” Randolph v. State, 403 So. 3d 206, 208 (Fla.

2024) (alteration in original) (quoting Hutchinson, 343 So. 3d at 53),

or that it “would probably yield a less severe sentence,” id. (quoting

Walton v. State, 246 So. 3d 246, 249 (Fla. 2018)). Davis’s claim

fails both prongs.

As to the first prong, the evidence here plainly “could . . . have

been discovered through due diligence at the time of trial.” Mosley

v. State, 397 So. 3d 1001, 1006 (Fla. 2024) (quoting Sheppard v.

State, 338 So. 3d 803, 825 (Fla. 2022)). Again, the autopsy report

disclosed the existence of the slides and the finding of pneumonia.

If, as Davis alleged in his instant motion, his “account of the events”

was “that [the victim] stopped breathing for no discernable reason,”

then one would think that the victim’s pneumonia might be

something for Davis to have explored rather than blindly accepting

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the medical examiner’s opinions.

In his reply brief, Davis attempts to analogize this case to

Swafford v. State, 125 So. 3d 760 (Fla. 2013). But Swafford is

distinguishable. There, the defendant was convicted of first-degree

murder and sexual battery, and this Court agreed with the

postconviction court’s finding that “results from the retesting of the

[victim’s vaginal and anal] swabs qualifie[d] as newly discovered

evidence,” id. at 768, where the initial testing “got a positive result

for acid phosphatase, a substance characteristically found in

seminal fluid,” but the retesting twenty years later “indicate[d] the

opposite,” id. at 762. The acid phosphatase evidence “was the

linchpin of the State’s case that a sexual battery occurred.” Id.

Here, the medical examiner’s examination of the slides in 1992

revealed evidence of pneumonia. Dr. Arden’s re-examination of the

slides thirty years later “corroborated that [the victim] had

pneumonia.” This case—with Dr. Arden’s additional conclusions as

to the timing of the pneumonia—is far more akin to the defense

“merely obtaining a new expert,” something we have said “cannot be

the basis for a newly discovered evidence claim.” Howell v. State,

145 So. 3d 774, 775 (Fla. 2013). Davis fails the first prong of

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Jones.

Regarding the second prong of Jones, this Court recently said

that the “Jones probability standard” is “more demanding” than

“the Brady materiality standard.” Stein, 406 So. 3d at 175 (citing

Truehill v. State, 358 So. 3d 1167, 1185 (Fla. 2022)). Because Davis

fails to meet the Brady materiality standard—as explained above—

he necessarily fails to meet the Jones standard. And Dr. Arden’s

supplemental report regarding the victim’s possible pre-admission

pneumonia does not alter the calculus of any “cumulative analysis”

by this Court.

III. CONCLUSION

For the reasons stated above, we affirm the summary denial of

Davis’s fourth successive motion for postconviction relief.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

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

An Appeal from the Circuit Court in and for Duval County,
Tatiana Radi Salvador, Judge
Case No. 161992CF013193AXXXMA

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Dawn B. Macready, Capital Collateral Regional Counsel, Alice
Copek, Assistant Capital Collateral Regional Counsel, and Nida
Imtiaz, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida,

for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, and
Leslie T. Campbell, Senior Assistant Attorney General, West Palm
Beach, Florida,

for Appellee

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