Jason Andrew Simpson v. State of Florida & Jason Andrew Simpson v. Ricky D. Dixon, etc.

Supreme Court of Florida
____________

No. SC18-1238
____________

JASON ANDREW SIMPSON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC19-700
____________

JASON ANDREW SIMPSON,
Petitioner,

vs.

RICKY D. DIXON, etc.,
Respondent.

January 13, 2022

PER CURIAM.

Jason Andrew Simpson, a prisoner under sentence of death,

appeals the denial of numerous guilt-phase claims raised in his

motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas

corpus.1 Because we agree with Simpson that the State committed

a Brady 2 violation by failing to disclose that one of the witnesses

was a confidential informant for the State, we reverse the denial of

postconviction relief as to the guilt phase, vacate Simpson’s

convictions for first-degree murder, and remand to the trial court

for a new trial.

I. BACKGROUND

Simpson was convicted in 2007 of the 1999 first-degree

murders of “Big Archie” Crook, 3 a drug dealer against whom

Simpson was working as a confidential informant for the

Jacksonville Sheriff’s Office (JSO), and Crook’s pregnant girlfriend,

Kimberli Kimbler. In the years leading up to the murders of Big

Archie and Kimbler, Big Archie and his son, “Little Archie,” were

heavily involved in the drug trade in Jacksonville. Big Archie

1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

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

3. To distinguish between the victim, Archie Howard Crook,
and his son, a witness, Archie Clyde Crook, the victim will be
referred to as “Big Archie” and his son will be referred to as “Little
Archie,” a nickname by which he is known.

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supplied drugs that Little Archie would sell. Simpson was one of

their associates in the drug trade, as was George Michael Durrance.

On the morning of July 16, 1999, Big Archie’s father discovered the

bodies of Big Archie and Kimbler in the master bedroom of the

home they shared. They had been hacked to death with an axe.

Detectives with the JSO responded to the scene. There were

no visible signs of forced entry to the home, and nothing was

disturbed inside other than the master bedroom. Detectives

learned that Little Archie and his friend, Shawn Smallwood, had

visited Big Archie’s house between 10 and 11 p.m. the night of July

15, 1999. They smoked marijuana, and Big Archie ate strawberry

shortcake. The medical examiner estimated that, judging by the

state of the food in Big Archie’s stomach, he died within an hour

after he ate. Little Archie testified that when he left Big Archie’s

home that night, he did not lock the door behind him, and Big

Archie did not get up and lock it after him. Both Little Archie and

Smallwood denied any involvement in the murders.

During their search of the property behind Big Archie’s house,

detectives located an axe believed to be the murder weapon, a pair

of socks, and two pieces of torn material on a barbed wire fence.

-3-
Four days later, on July 20, 1999, a pile of clothing was found

behind an air conditioning unit at a church adjacent to Big Archie’s

house, including a baseball cap, a black sweatshirt, black

sweatpants, and a pair of tennis shoes. The torn pieces of material

found on the barbed wire fence matched the color and appearance

of the sweatshirt and sweatpants located on the church property.

Detectives also recovered a pager located next to the victims’ bed.

The first number on the pager belonged to Simpson’s mother, with

whom Simpson was living at the time.

Evidence collected at the scene was processed by Florida

Department of Law Enforcement (FDLE) and FBI analysts. Two

human head hairs were recovered from Kimbler’s right hand. DNA

analysis excluded Kimbler, Little Archie, Simpson, Smallwood, and

Durrance as sources of the first hair but not Big Archie. As to the

second hair, Little Archie, Simpson, Smallwood, and Durrance were

excluded as sources but not Kimbler. DNA analysis of the

scrapings from Kimbler’s fingernails excluded Simpson, Smallwood,

and Durrance as potential donors of the material under Kimbler’s

fingernails, but not Little Archie or Big Archie.

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DNA from five bloodstains on the sweatpants was tested.

Three of the stains were mixtures, the primary profile of which

matched Kimbler’s DNA profile, and two from which Simpson could

not be excluded as a minor contributor. The other two stains

contained a single DNA profile matching that of Big Archie. The

primary contributor of the DNA profile found on the waistband of

the sweatpants was Simpson. Assuming the DNA profile on the

waistband was a mixture of two DNA profiles, Big Archie, Little

Archie, Kimbler, and Smallwood were excluded as minor

contributors. Simpson was also the primary contributor of the DNA

profile found on the leg cuffs of the sweatpants. The profile of the

minor contributor to the leg cuffs was unable to be determined.

Although there was no blood on the sweatshirt, Simpson was the

primary contributor of the DNA profile found on the neck. Big

Archie and Smallwood were excluded as minor contributors, but not

Little Archie. A white, crusty stain on the left shoulder of the

sweatshirt contained a single DNA profile matching that of

Simpson.

Three hairs recovered from the packaging containing the

sweatpants, sweatshirt, and baseball cap were subjected to DNA

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testing. One hair contained no DNA. The other two hairs matched

each other, and a partial DNA profile of those hairs matched

Simpson’s DNA profile. Big Archie, Little Archie, Kimbler, and

Smallwood were excluded as the source of the two hairs. A DNA

profile could not be obtained from the baseball cap or socks.

The State presented testimony from an expert who opined that

the major profile of DNA on the clothing would be the DNA from the

person who had worn the clothing most recently. But on cross-

examination, the expert agreed that if one person wore clothing over

an extended period of time and it was then put on by a second

individual for a short period of time, he would not expect the major

profile to come from the most recent wearer.

Prior to the murders, JSO Detective Robert Hinson met with

Simpson on June 10, 1999, shortly after Simpson’s release from jail

on grand theft charges, because Simpson was willing to assist JSO

with investigation of criminal activity. Detective Hinson was

investigating a group of individuals, including Little Archie, Big

Archie, and Durrance, concerning another homicide. On June 21,

1999, Simpson contacted Detective Hinson to tell him that he had

been in contact with Little Archie, who wanted Simpson to “hit a

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lick,” which Simpson understood in that instance to mean that

Little Archie was going to steal a car. The next time Detective

Hinson spoke with Simpson was on July 16, 1999, the day Big

Archie and Kimbler’s bodies were discovered. When Detective

Hinson heard about the murders that morning, he contacted

Simpson to gather information. Detective Hinson met Simpson at

Simpson’s mother’s house, where Simpson was staying. When

Detective Hinson arrived at the house, he noticed that Simpson had

a “large gash” on his finger, which Simpson claimed he injured

when hitting the electrical panel in his mother’s garage. When

Detective Hinson told him about the murders, Simpson expressed

that he was not sorry about Big Archie’s death. Simpson told

Detective Hinson that Big Archie and Little Archie had been putting

the word out on the street that Simpson was a snitch and was

cooperating with the police. Simpson said the last time he spoke

with Big Archie was a couple of weeks prior when they went

somewhere together to buy drugs. Simpson told Detective Hinson

that Little Archie had stolen fifty pounds of marijuana from Big

Archie. After speaking with Simpson, Detective Hinson notified the

homicide detectives working this case that they should look further

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at Simpson. Detective Hinson also told the homicide detectives

what Simpson said about Little Archie stealing his father’s

marijuana. A few days later, Detective Hinson obtained a voluntary

DNA sample from Simpson.

From July 1999 to fall 2001, detectives made little progress in

the investigation of the murders. Then, in fall 2001, while awaiting

trial on a charge of conspiracy to traffic in cocaine, Durrance

notified JSO and the State Attorney’s Office that Simpson had

confessed to him in 1999 that he murdered Big Archie and Kimbler.

Durrance told detectives that in the days before the murders,

Simpson came to his house and told him that he was going to rob

Big Archie of $10,000. Simpson also told Durrance that Big Archie

offered him money to kill Durrance, but Simpson laughed it off and

told Durrance he would never kill him. A few days after the

murders, Simpson asked Durrance to front him some drugs or loan

him some money. Assuming Simpson had robbed Big Archie as he

said he intended to do, Durrance told him that he should already

have money. Simpson replied, “You know, I’m the one who killed

him, you know I did.”

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Armed with Durrance’s allegation that Simpson confessed,

Detective Hinson called Simpson to come to the police station to

speak with detectives. When the detectives told Simpson that they

needed his assistance with the “Crook/Kimbler” murders, Simpson

initially said that he did not know them. Once the detectives said,

“Archie Crook,” Simpson stated that he knew him but looked at his

watch and said, “It’s time for me to go, I’ve got to get to work.”

Simpson then said, “You cannot hold me here, I do not scare easy.”

A year later, in fall 2002, detectives learned that DNA

matching Simpson’s was found on the clothing left on the church

property. Simpson was brought in for an interview. When one of

the detectives told Simpson that they wanted to talk to him about

the “Crook and Kimbler” murders, Simpson replied that he did not

know them. When asked whether he knew “Big Archie,” Simpson

said he knew him “a little.” Simpson told the detectives that he had

information on the case and wanted to share it, but he wanted a

deal in a then-pending, unrelated case. When the detectives told

Simpson that they thought he committed the murders because they

had his DNA at the crime scene, Simpson denied involvement and

said that was impossible. When the detectives told Simpson that

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they were not in a position to offer him a deal, the interview

concluded.

Simpson was interviewed again the next day. Detectives

advised Simpson that other people were pointing fingers at him,

including Durrance. Simpson told the detectives that there was no

loyalty between him and Durrance because he was the person who

had initially provided the information to police that led to

Durrance’s arrest and ultimate conviction in the trafficking case,

and he suspected Durrance was aware of that fact. Detectives

showed Simpson pictures of the church and the clothes worn

during the murders and told him that they had information that the

clothes belonged to Simpson. Simpson was then arrested for the

murders of Big Archie and Kimbler.

At trial, the defense’s theory of the case was that Little Archie,

Smallwood, and Durrance were all involved in the homicides. The

defense argued during closing argument that Little Archie murdered

Big Archie and Kimbler because he was jealous of Kimbler’s unborn

baby and perhaps because there were drugs and a lot of money

involved. The defense further argued that Durrance lied about

Simpson’s confession as retribution for Simpson’s cooperation with

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law enforcement in the case against Durrance, and Durrance also

had a motive to kill Big Archie because Big Archie had owed him

money and wanted Durrance dead.

Little Archie admitted during trial that he was angry and upset

that Kimbler was carrying his father’s child. Little Archie had

hoped that his father and mother would get back together, and he

was upset that his father was living with Kimbler. Contrary to

Simpson’s trial testimony, Little Archie denied having gone over to

Simpson’s home in the days prior to the murder and denied having

ever borrowed any clothing from Simpson. Little Archie testified

that Simpson was “a little bigger” than he was but admitted that he

could wear sweatpants and a sweatshirt that were bigger than his

normal size.

Little Archie admitted that he “might have said” that Kimbler’s

baby would never see the light of day. He also admitted that he

“could have said” that he would kill Big Archie, Kimbler, and the

baby. Brenda Crook Bennett, Big Archie’s sister and Little Archie’s

aunt, testified that she advised Detective Williams that there was a

time when Little Archie said, in front of Big Archie, that he would

kill Big Archie, Kimbler, and the baby if they ever had a baby.

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Several other witnesses reported having heard Little Archie say that

Kimbler’s baby would never see the light of day.

When Detective Williams interviewed Little Archie the day the

bodies were found, Little Archie was aware of the positions in which

the bodies were found, which he said that he learned from his

grandfather, although his grandfather denied telling him. During

the interview, Little Archie seemed nervous and upset, and “jumped

around somewhat on the explanations to the questions” police had

asked. Little Archie told police that he had taken some medication

or had forgotten to take some medication.

Simpson took the stand at his trial. Simpson testified that he

was cooperating with law enforcement in 1999. After he got out of

jail in 1999 in the grand theft case, Simpson rented a room in a

trailer. According to Simpson, one day when he was painting his

mom’s house, Little Archie came over to see him. Little Archie told

Simpson that he heard Simpson was working with the police but

then told Simpson he was joking. Simpson asked Little Archie to

drive him back to his trailer. During the ride to the trailer, Little

Archie asked Simpson if he could borrow some clothes because he

wanted to “hit a lick,” meaning he was planning to steal a car.

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Little Archie said he needed dark clothes because he did not have

anywhere he was staying. When they got to the trailer, Simpson

told Little Archie that he could pick some clothes out from a pile of

clothes on the floor while Simpson took a shower. When Simpson

got out of the shower, Little Archie was gone, but the top drawer to

Simpson’s dresser was open, and Lieutenant Tom Waugh’s (one of

the officers to whom Simpson was providing information) business

card, which Simpson kept inside his dresser, was on the top of the

dresser. Simpson immediately called Lieutenant Waugh to tell him

about his conversation with Little Archie and then called Detective

Hinson to tell him what Little Archie planned to do. Shortly after

that, Simpson moved out of the trailer and in with his mother. At

the time of the murders in July 1999, Simpson was living at his

mother’s house.

Simpson testified that on the morning of July 16, 1999, the

power went out at his mother’s house. He scratched his finger

trying to turn the power back on at the breaker box in his mother’s

garage. Simpson could not recall if he called the Jacksonville

Electric Authority (JEA) that morning or not but recalled that the

power came back on quickly, and he went back to sleep. Sometime

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later, Simpson’s mother woke him up, tossed him the phone, and

told him Detective Hinson had called. When Simpson met with

Detective Hinson later that day, he did not bother to put a bandage

on the scratch on his finger. When Detective Hinson told him that

Big Archie and Kimbler were dead, it took a while for him to process

the news.

Simpson testified that he did not, and had no reason to,

murder Big Archie or Kimbler. When asked about the clothing with

the victims’ blood and his DNA on it, Simpson stated that Little

Archie had taken that clothing from his trailer. Simpson identified

the articles of clothing in court as belonging to him. With respect to

the initial interview with the detectives in 2001, Simpson stated

that the detectives were rude and had left him in the room by

himself for a while. When Simpson was leaving the police station

that day, he told the detectives that he had to leave to go to work.

Simpson denied that he told detectives he did not know Big Archie

and Kimbler. Simpson stated that he misunderstood and thought

the detective asked him if he knew “Crews.” Simpson was

confused, but when the detective then mentioned “Archie and Kim,”

Simpson said of course he knew them. He told detectives that he

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did not scare easily and was not afraid because one detective was

yelling in his face and trying to scare him. Regarding the second

interview in fall 2002, Simpson denied that he said that he did not

know who Crook and Kimbler were. Simpson denied ever having

been to Durrance’s house in 1999 and denied ever telling Durrance

that he killed Big Archie and Kimbler.

Simpson testified that he knew he was putting himself in

danger by informing on Durrance. He also testified that Big Archie

told him that he had heard from Little Archie that Simpson was

working for the police. Simpson said he “might have” or “very

possibl[y]” paged Big Archie the day before the murders because it

would not have been out of the ordinary to do so.

An electric reliability specialist with the JEA confirmed that

there was a three-minute power outage at Simpson’s mother’s

house at 7:46 a.m. on July 16, 1999. JEA also received a call that

morning from a caller identified as “Mr. Simpson,” approximately

ten minutes after the outage.

Simpson also presented the testimony of Terry Thompson,

Little Archie’s cousin. Thompson testified that he saw Little Archie

and Smallwood at the RaceTrac gas station about three or four

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miles from Big Archie’s house at around midnight on July 16, 1999.

After he saw Little Archie and Smallwood, Thompson went to Big

Archie’s house to see if Big Archie was there, but there was no

answer. Dana Guinn, the father of Thompson’s girlfriend, testified

that he was with his daughter and Thompson in the car at the

RaceTrac on July 15, 1999, at 11:30 p.m. When Little Archie and

Smallwood first pulled into the RaceTrac, Guinn thought they may

have been a little jittery, but they were kidding around with

Thompson, who got out of the car to talk to them. Once they left

the gas station, Guinn, Thompson, and Guinn’s daughter went

directly to Big Archie’s house. Thompson went around the back to

tell Big Archie that they wanted to hook up a telephone line, but no

one came to the door.

The jury found Simpson guilty of both murders, and the trial

court ultimately imposed a sentence of death for each murder.

Simpson v. State, 3 So. 3d 1135, 1138-39 (Fla. 2009). Simpson

appealed, and this Court affirmed the convictions and sentences in

2009. Id. at 1149. Simpson subsequently filed a motion for

postconviction relief under Florida Rule of Criminal Procedure

3.851 and several amendments thereto. The trial court held a

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twelve-day evidentiary hearing, and thirty-seven witnesses testified.

Following the evidentiary hearing, the trial court entered an order

on July 6, 2018, denying in part Simpson’s motion and granting in

limited part Simpson’s motion as to the penalty phase under Hurst

v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v.

Poole, 297 So. 3d 487 (Fla. 2020), cert. denied, 141 S. Ct. 1051

(2021).

II. ANALYSIS

Simpson now appeals the denial of relief as to the guilt phase

raising numerous claims4 and has petitioned this Court for a writ of

4. The claims raised by Simpson are (1) trial counsel was
ineffective for failing to object to improper arguments during the
State’s closing arguments; (2) the State violated Giglio v. United
States, 405 U.S. 150 (1972), by knowingly misrepresenting
Simpson’s release date, and trial counsel was ineffective in failing to
respond with readily available evidence that would have shown the
State’s position was false; (3) the State committed a Giglio violation
by knowingly misrepresenting Kimbler’s injuries in closing
argument; (4) newly discovered evidence in the form of Durrance’s
recantation; (5) the State violated Giglio and Brady by knowing and
concealing evidence tending to show that Durrance’s testimony was
false; (6) trial counsel was ineffective in failing to discover and use
the impeachment evidence referenced in claim 5; (7) the State
violated Giglio by knowing that its alternative explanation for how
Simpson could have entered the house was false, and trial counsel
was ineffective for failing to show that it was false; (8) the State
violated Brady by failing to disclose that Little Archie was a
confidential informant against Durrance in another case; (9) the

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habeas corpus. Of the numerous Brady claims presented in this

appeal, we conclude that one claim is dispositive—the State’s failure

to disclose that prior to Simpson’s trial, Little Archie had served as

a confidential informant against Durrance in another case.

State violated Simpson’s due process rights by failing to preserve
the evidence in this case for future DNA testing; (10) the
postconviction DNA testing warrants a new trial; (11) trial counsel
was ineffective for failing to independently test the DNA evidence;
(12) trial counsel was ineffective for failing to effectively consult with
the court-appointed DNA expert; (13) trial counsel was ineffective
for failing to find and use Shannon Elliot, who allegedly had
information inculpating Little Archie; (14) trial counsel was
ineffective for failing to interview and prepare Misty McNeish to
testify at trial so that she would inculpate Little Archie; (15) trial
counsel was ineffective for failing to show that Little Archie knew
the positions of the bodies before anyone could have told him;
(16) trial counsel was ineffective for failing to discover and present
evidence that Little Archie lied about his whereabouts the night of
the murders; (17) trial counsel was ineffective for presenting an
incoherent closing argument; (18) newly discovered evidence in the
form of testimony from Little Archie and Terry Thompson that
tended to corroborate Simpson’s defense that Little Archie had
taken the clothes from Simpson’s trailer a few weeks before the
murders; (19) the State committed Brady and Giglio violations by
misleading the jury into believing that the last number to page Big
Archie belonged to Simpson’s mother; (20) the State violated Brady
or Giglio or trial counsel was ineffective related to Detective Hinson’s
testimony; (21) trial counsel was ineffective for failing to use
available work records to corroborate Simpson’s explanation that he
had to leave the interview with detectives because he was late to
work, and the State violated Brady by concealing the fact that
Simpson told the detectives this before they mentioned the
murders; and (22) cumulative prejudice warrants relief.

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Accordingly, we focus our analysis on this claim and do not address

the remaining claims.

“Brady requires the State to disclose material information

within its possession or control that is favorable to the defense.”

Davis v. State, 136 So. 3d 1169, 1184 (Fla. 2014). To establish a

Brady violation, a defendant must demonstrate that “(1) the

evidence was either exculpatory or impeaching; (2) the evidence was

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

the evidence was material, the defendant was prejudiced.” Id.; see

also Brady, 373 U.S. at 87 (“[T]he suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”).

“Under Brady, the undisclosed 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.

A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome.’ ” Guzman v. State, 868 So. 2d 498, 506

(Fla. 2003) (quoting United States v. Bagley, 473 U.S. 667, 682

(1985)). “The determination of whether a Brady violation has

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occurred is subject to independent appellate review.” Davis v. State,

928 So. 2d 1089, 1113 (Fla. 2005).

Simpson argues that the State violated Brady by failing to

disclose that prior to Simpson’s trial, Little Archie had served as a

confidential informant against Durrance. At the evidentiary

hearing, FDLE Agent Mark Brutnell testified that he was involved in

a multi-agency, multi-jurisdiction narcotics investigation in 1999-

2000 that resulted in the arrest and prosecution of Durrance for

drug trafficking. He and then-JSO Officer Bates5 authored an

application for a wiretap on Durrance’s phone. Little Archie was

“Source Number Five” in the wiretap application, which detailed

Little Archie’s account that Durrance had threatened to harm Big

Archie after the cocaine Durrance had fronted him was stolen and

Big Archie could not repay Durrance, as well as Durrance’s ruse of

selling them fake cocaine to get his money back. Little Archie was

not paid for the information, but he was in jail at the time and

hoping to get consideration regarding his own then-pending federal

5. At the time of the evidentiary hearing, Bates was an FDLE
Agent.

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counterfeiting charges. Little Archie also gave an interview from

which FDLE gleaned information. Agent Brutnell did not indicate

that Little Archie received any benefit from his interview with FDLE.

Agent Bates also testified that Little Archie was a source used in the

wiretap application for Durrance and that he was not paid for his

information. 6 He did not recall if Little Archie was attempting to get

favorable treatment or leniency on some criminal charges against

him.

There was testimony at the evidentiary hearing that Little

Archie told an assistant state attorney or one of the investigators

that Durrance had killed a drug dealer in West Palm Beach. When

asked about information he had provided to the State at the

evidentiary hearing, Little Archie testified that he told JSO he

thought Durrance had killed Big Archie in retaliation for the drug

disputes. He told Assistant State Attorney Mark Caliel that

Durrance had admitted to killing the dealer in West Palm Beach

who had sold Durrance the fake cocaine. After Little Archie testified

as a State’s witness against Simpson, the State brought Little

6. In listing Little Archie as a witness against Durrance in the
trafficking case, the State listed his address as “c/o Chuck Bates.”

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Archie down to West Palm Beach where he testified against

Durrance.

The trial court denied this claim, finding no evidence that

Little Archie acted as a paid, confidential informant in Durrance’s

trafficking case and that there was no indication that these

agencies made any deals with Little Archie for his cooperation. As a

result, the trial court did not reach the issue of prejudice. After

careful review of the entire record in this case, we do not agree with

the conclusion of the trial court that there was no Brady violation,

and we conclude that the Brady violation undermines our

confidence in the outcome of Simpson’s trial.

Here, the first two prongs of Brady are satisfied—this was

impeachment evidence, and the State does not dispute that it

should have but failed to turn over this information. As to the

materiality prong, the Court’s opinion in Gorham v. State, 597

So. 2d 782 (Fla. 1992), in which it was faced with a similar

scenario, is instructive. In Gorham, the Court wrote:

The State contends that Johnson’s informant status
in other cases cannot be deemed Brady material in the
instant case and that there is no evidence that Johnson
was a confidential informant in this case. We do not
agree with the State’s contentions. The Florida Evidence

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Code provides that the credibility of a witness may be
attacked by showing that the witness is biased.
§ 90.608(1)(b), Fla. Stat. (1981). A witness’ relationship
to a party, personal obligations to a party, or employment
by a party all have been recognized as proper questions
on cross-examination going to the interest and bias of the
witness. Charles W. Ehrhardt, Florida Evidence § 608.4
(2d ed. 1984).
The State admits that Johnson was a confidential
police informant on other occasions. Even though the
police did not reveal Johnson’s informant status to the
state attorney who prosecuted Gorham’s case, the state
attorney is charged with constructive knowledge and
possession of evidence withheld by other state agents,
such as law enforcement officers. State v. Coney, 294
So. 2d 82 (Fla. 1973); see also State v. Del Gaudio, 445
So. 2d 605 (Fla. 3d DCA), review denied, 453 So. 2d 45
(Fla. 1984). At the evidentiary hearing on Gorham’s
3.850 motion, the state attorney stated that had he
known about Johnson’s informant status he would
“certainly” have given that information to the defense
because it “comes within the Brady definition.” Receipts
from the Pompano Police Department show that Johnson
received substantial payments for confidential
information relating to other cases. A receipt dated June
9, 1982, also indicates that while Johnson was
incarcerated during the period between Gorham’s two
trials she received ten dollars related to this case from
the Pompano police. This information was never
disclosed to Gorham, and, thus, the defense was unable
to attack Johnson’s credibility by showing that she was
biased.
In evaluating Brady claims, courts must determine
whether the withheld evidence is “material,” rather than
just favorable to the accused. Evidence is material “only
if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the
proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). The standard for

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determining “reasonable probability” is “a probability
sufficient to undermine confidence in the outcome.” Id.
Given this trial’s circumstantial nature, Johnson’s role as
the State’s key witness, and the defense’s inability to
impeach Johnson based upon the undisclosed evidence,
we find that such a reasonable probability exists in this
case.

Id. at 784-85 (footnote omitted).

Here, Little Archie was confidential “Source Number Five” in

the wiretap application that led to the arrest and prosecution of

Durrance for drug trafficking. As in Gorham, because Little Archie

had been an informant in another case, he had a “relationship to a

party” that was a potential source of bias requiring disclosure. And

disclosure of a witness’ informant status is required even where

there is no evidence that the witness was given favorable treatment

in exchange for the information. See Hendrix v. State, 908 So. 2d

412, 424 (Fla. 2005) (concluding that the State’s failure to disclose

that one of the witnesses was a confidential informant for the State

“was impeachment evidence that should have been disclosed” where

the record refuted the claim that the witness was treated favorably

or provided anything in exchange for the testimony).

The State argues that even if this evidence could have had

impeachment value, it was not material as Little Archie was

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impeached at trial with his own motive to kill his father. “However,

the fact that a witness is impeached on other matters does not

necessarily render the additional impeachment cumulative.”

Cardona v. State, 826 So. 2d 968, 974 (Fla. 2002); see also United

States v. Rivera Pedin, 861 F.2d 1522, 1530 (11th Cir. 1988) (“We

acknowledge that Ream’s credibility had been eroded due to the

testimony the defense elicited from him on cross-examination. The

disclosure of Ream’s conversation with Miller, however, would not

have been merely repetitious, reinforcing a fact that the jury already

knew; instead, ‘the truth would have introduced a new source of

potential bias.’ ” (quoting Brown v. Wainwright, 785 F.2d 1457,

1466 (11th Cir. 1986))). Here, the jury did not hear testimony

regarding Little Archie acting as a confidential informant; therefore,

this would have introduced a new source of potential bias.

With regard to the significance of this evidence, we note that

both Durrance and Little Archie were crucial witnesses for the

State. Simpson was convicted primarily based on Durrance’s

testimony at trial that Simpson confessed to him and

circumstantial evidence of Simpson’s DNA on clothes found a few

days after the murders on the property adjoining the home of Big

- 25 -
Archie and Kimbler. At trial, Simpson did not deny that the clothes

found belonged to him but provided an explanation as to how his

clothes ended up near the murder scene—Little Archie took them

from his house. And the State’s expert testified, on both direct and

cross-examination, that he could not exclude Little Archie from

some DNA mixtures present on the clothes. Contrary to Simpson’s

trial testimony, Little Archie denied having gone over to Simpson’s

trailer in the days prior to the murder and denied having ever

borrowed any clothing from Simpson. 7 Accordingly, evidence that

Little Archie served as a confidential informant against Durrance

would have allowed the defense to impeach Little Archie on a new

source of bias (one not revealed to the jury at trial). See Napue v.

Illinois, 360 U.S. 264, 269 (1959) (“The jury’s estimate of the

truthfulness and reliability of a given witness may well be

determinative of guilt or innocence, and it is upon such subtle

factors as the possible interest of the witness in testifying falsely

that a defendant’s life or liberty may depend.”).

7. Little Archie’s testimony at the evidentiary hearing
corroborated Simpson’s testimony at trial regarding having been to
Simpson’s trailer, borrowing clothes, and finding the detective’s
business card.

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Little Archie also testified at the evidentiary hearing that he

told JSO that he thought Durrance killed Big Archie in retaliation

for the drug disputes and that he told Caliel that Durrance

admitted to killing the drug dealer in West Palm Beach who sold

Durrance fake cocaine. Simpson argues that with this evidence,

the defense could have challenged why the State quickly dismissed

Little Archie as a suspect because he was a valuable source of

information. The relationship between Simpson, Little Archie, and

Durrance was of critical importance in this case, and the

information Little Archie provided to law enforcement pertaining to

Durrance casts a different light on this relationship. At trial, the

defense’s overarching theory of the case was that Little Archie,

Smallwood, and Durrance were all involved in the homicides.

Simpson denied that he killed Big Archie and Kimbler, denied ever

having been to Durrance’s house in 1999, denied ever telling

Durrance that he killed Big Archie and Kimbler, and testified that

he had no reason to murder Big Archie and Kimbler. Further, the

person who was known to have seen Big Archie and Kimbler within

an hour of their deaths and the only person to refute Simpson’s

testimony that Little Archie had taken the sweatclothes from

- 27 -
Simpson’s trailer—Little Archie himself—also had motive and

opportunity to kill the victims and had threatened to kill them, as

well as Kimbler’s unborn child. Little Archie also knew details of

the crime, including the position of the bodies of Big Archie and

Kimbler. Moreover, at the time of Simpson’s trial, Little Archie was

incarcerated in federal prison for conspiracy to distribute drugs.

Therefore, the undisclosed evidence that Little Archie was a

confidential informant for the State was material.

Further, Little Archie’s testimony and credibility were of

significant consequence when we consider the lack of evidence

linking Simpson to the scene of the crime. Despite the DNA

evidence in this case, it was not a slam dunk for the State, and

there were a number of weak points. As counsel pointed out in

closing, the police failed to investigate much of the evidence they

would later testify incriminated Simpson, the shoes found at the

church did not match the prints at the crime scene, the tire tracks

from the scene did not match any of the vehicles Simpson had

access to at the time, the crime scene technicians failed to collect

much of the trace evidence from the room in which the victims were

found, law enforcement failed to record any of the interviews during

- 28 -
their investigation, some of those who handled the evidence failed to

follow standard operating procedures, and the State only tested a

small fraction of the biological evidence from the crime scene.

There was no evidence placing Simpson in Big Archie and Kimbler’s

home on the night of the murders and no evidence to rebut

Simpson’s testimony that he was at his mother’s house at the time

of the murders. And although there was evidence of a confession, it

came years after the murders from a witness who both had a motive

to kill one of the victims himself and who was in jail due to

information provided by Simpson.

Accordingly, the State’s failure to disclose evidence that Little

Archie had served as a confidential informant against Durrance

constitutes a Brady violation and undermines our confidence in the

outcome of this case. 8

8. We also agree with Simpson that trial counsel’s
performance was deficient in failing to object to several of the
State’s comments in closing argument. However, these errors
standing alone do not constitute grounds for a new trial.
Accordingly, because we conclude that the Brady violation alone
merits reversal for a new trial, we do not address these claims or
cumulative prejudice in further detail.

- 29 -
III. CONCLUSION

Because we conclude that the Brady violation undermines

confidence in the outcome of the trial, we reverse the denial of

postconviction relief as to the guilt phase, vacate Simpson’s

convictions for first-degree murder, and remand to the trial court

for a new trial. In light of the vacation of the convictions and

remand for a new trial, Simpson’s petition for a writ of habeas

corpus, raising claims of ineffective assistance of appellate counsel,

is dismissed as moot.

It is so ordered.

POLSTON, LABARGA, LAWSON, COURIEL, and GROSSHANS, JJ.,
concur.
CANADY, C.J., dissents with an opinion.
MUÑIZ, J., recused.

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

CANADY, C.J., dissenting.

Because I would conclude that the State’s failure to disclose

evidence that Little Archie had served as a confidential source

against Durrance was not material under Brady, and does not

undermine confidence in the outcome even when considered

cumulatively with counsel’s deficiency in failing to object to several

- 30 -
of the State’s comments during closing argument and other

improper comments made by the State that were raised on direct

appeal, I would affirm the trial court’s denial of postconviction relief

as to the guilt phase. I would also deny Simpson’s habeas petition

on the merits. I therefore dissent.

The majority first claims that the fact that Little Archie

provided confidential information that was used in a wiretap

application made in Durrance’s trafficking case means that “he had

a ‘relationship to a party’ that was a potential source of bias

requiring disclosure” under our decision in Gorham v. State, 597 So.

2d 782 (Fla. 1992). Assuming that the State was required to

disclose Little Archie’s history as an informant against Durrance, its

failure to do so was not material. The fact that Little Archie had an

interview9 with Agent Brutnell and then-JSO Officer Bates from

which they “gleaned” information about Durrance while Little

Archie was in jail on his own federal charges does little, if anything,

9. Although the record indicates only one such interview took
place on January 7, 2002, the majority seems to imply there were
two. See majority op. at 20-21.

- 31 -
to suggest Little Archie was biased toward the State in this case. 10

Agent Brutnell testified at the evidentiary hearing that by providing

information about Durrance, Little Archie was attempting to obtain

a benefit in his then-pending federal counterfeiting case; he was not

attempting to aid law enforcement because of a bias toward law

enforcement or the State. Indeed, as a serious drug dealer (which

Little Archie admitted to being when providing the information used

in the wiretap application) under prosecution, he was likely quite

biased against law enforcement. Under questioning by the defense

at Simpson’s trial, Little Archie testified that he was familiar with

Officer Bates and did not like him, stating, “He was a narcotics

agent, sir. I was out there selling drugs. He was trying to put me in

jail.” Further, at the time of Simpson’s trial, there were many other

10. Agent Brutnell testified at the evidentiary hearing that
FDLE did not consider Little Archie a “true,” “documented,”
confidential source and there was no documentation or record that
he was one of the twelve confidential sources who provided
information used in the Durrance wiretap affidavit; Agent Brutnell
just happened to remember that he was. Agent Bates also testified
that JSO did not consider Little Archie a “documented” informant
with respect to the Durrance investigation; since he was not paid,
there would not have been any record of him having been a
“source.”

- 32 -
and greater reasons why the jury could have concluded that Little

Archie was biased towards the State in this case, e.g., this was the

prosecution of his father’s alleged murderer and he would have

wanted justice to be done, or, as Simpson theorizes, Little Archie

was the real murderer of Big Archie and Kimbler and therefore had

every reason to want Simpson convicted instead of facing

prosecution himself. There was no testimony at the evidentiary

hearing that any agency made a deal with Little Archie for the

information he provided. And at the time, Little Archie was facing

federal counterfeiting charges, for which none of the agencies

involved in Simpson’s case had the authority to offer Little Archie

any sort of consideration. To the extent that Little Archie had a

relationship with law enforcement that would show bias, it was

exceedingly minimal.

The failure to disclose a witness’s informant status is not

always material. The majority cites Hendrix v. State, 908 So. 2d

412 (Fla. 2005), majority op. at 24, a case in which we determined

that the failure to disclose the confidential informant status of one

of the witnesses against Hendrix, Roger LaForce, was not material.

During postconviction proceedings, Hendrix alleged that the State

- 33 -
violated Brady by failing to disclose that LaForce had previously

been a confidential informant for the State in investigations

unrelated to Hendrix’s case. 908 So. 2d at 423. 11 The trial court

determined that LaForce’s history as an informant was

impeachment evidence that should have been disclosed but that

Hendrix was not prejudiced by the failure to disclose this

information. Id. at 424. On appeal, this Court agreed that Hendrix

was not prejudiced. Id. at 424-25. The Court noted that “LaForce’s

prior assistance as a cooperating defendant, which occurred over a

year prior to Hendrix’s arrest, would have had a minimal impact, if

any,” and that “[t]he more damaging evidence regarding LaForce,

that he heard [Hendrix’s] confession while in prison and contacted

the State because he was seeking a deal, had already been

presented to the jury.” Id. at 425.

Here, Little Archie provided the information used in the

wiretap application in Durrance’s case in January 2000; Simpson

was not arrested until almost three years later in September 2002.

11. Hendrix also alleged that LaForce was given favorable
treatment in exchange for his testimony at Hendrix’s trial, which
was refuted by the record. 908 So. 2d at 424.

- 34 -
Simpson’s jury was aware that Little Archie was incarcerated on

federal drug charges at the time he testified at Simpson’s trial. The

jury also was made aware of “the more damaging evidence”

regarding Little Archie—that he had threatened to kill his father,

Kimbler, and their unborn child; that he had a financial motive to

kill his father; that he had the opportunity to commit the murders;

and that he knew the positions in which the bodies were found. As

in Hendrix, because of this “more damaging evidence” regarding

Little Archie’s bias that was presented to the jury, his prior

assistance as one of the twelve confidential sources who, nearly

three years prior to Simpson’s arrest, provided information used in

the Durrance wiretap application, would have had a minimal

impact, if any. Even if the jury had heard “testimony regarding

Little Archie acting as a confidential informant,” majority op. at 25,

which “would have introduced a new source of potential bias,” id.,

its minimal impact certainly would not have put the entire case “in

such a different light as to undermine confidence in the verdict,”

Sweet v. State, 293 So. 3d 448, 451 (Fla.) (quoting State v. Huggins,

788 So. 2d 238, 243 (Fla. 2001)), cert. denied, 141 S. Ct. 909

(2020).

- 35 -
The majority seems to find meritorious Simpson’s argument

that if he had been aware at the time of his trial that Little Archie

had provided the JSO with his “thought [that] Durrance killed Big

Archie in retaliation for the drug disputes and that [Little Archie]

told Caliel that Durrance admitted to killing the drug dealer in West

Palm Beach,” 12 he “could have challenged why the State quickly

dismissed Little Archie as a suspect [which was] because he was a

valuable source of information.” Majority op. at 27. 13 But that

argument is nonsensical because Simpson was also a valuable

source of information (seemingly even more valuable than Little

Archie based on the record before us) to the JSO, Clay County

detectives, the DEA, and the FBI in many state and federal

investigations involving murder, robbery, burglary, auto theft, and

narcotics. He was providing information regarding the potential

involvement of Durrance, Little Archie, and other individuals in

12. Simpson did not include this point within his Second
Amended Motion for Postconviction Relief below.

13. The evidence presented at the evidentiary hearing was
that Little Archie was dismissed as a suspect because he passed a
polygraph.

- 36 -
another homicide and informing on Little Archie’s involvement with

drugs and burglaries and Big Archie’s narcotics operation.

Further, the fact that Little Archie informed against Durrance

does nothing to support Simpson’s theory at trial that Little Archie,

Durrance, and Smallwood were responsible for the murders, as the

majority suggests. To the contrary, it cuts against it. If Little

Archie and Durrance were—as the defense contends—cohorts in the

murders of Big Archie and Kimbler, it seems highly unlikely that

Little Archie would draw attention to Durrance by implicating him

in an unrelated murder. Such an action could potentially

boomerang on Little Archie by provoking a counter-accusation

regarding the murders of Big Archie and Kimbler. The majority

does not explain how it believes “the information Little Archie

provided to law enforcement pertaining to Durrance casts a

different light on this relationship” of “critical importance” between

Simpson, Little Archie, and Durrance. Majority op. at 27. But the

fact that Little Archie informed on Durrance after the murders

suggests that Little Archie and Durrance did not have the type of

relationship that would be expected of cohorts in a double murder.

And although the majority suggests that Little Archie having

- 37 -
informed on Durrance would have affected the jury’s perception of

his credibility at Simpson’s trial, it again fails to explain how. 14 The

jury already likely perceived Little Archie as less than credible

based on his potential motives in seeing Simpson convicted, his

criminal record, and his evasiveness and apparent memory lapses

during his testimony.

The fact that Little Archie had been a source to law

enforcement in unrelated matters is of little, if any, relevance, and

in light of the other information known to the jury about Little

Archie, would not have been an indication that he had a particular

bias toward law enforcement or the State. There is no reasonable

probability that had this information been disclosed to Simpson,

the result of Simpson’s trial would have been different. I would

thus conclude that the State’s failure to disclose that Little Archie

had previously informed against Durrance was not material and did

14. And the majority’s claim that “Little Archie’s testimony at
the evidentiary hearing corroborated Simpson’s testimony at trial
regarding having been to Simpson’s trailer, borrowing clothes, and
finding the detective’s business card,” majority op. at 26 n.7, is not
only irrelevant to the materiality of the Brady claim but also
inaccurate. Nothing in Little Archie’s evidentiary hearing testimony
corroborates Simpson’s trial testimony that Little Archie borrowed
the sweatclothes used in the murders from his trailer.

- 38 -
not prejudice Simpson. Assuming, however, that the first two

Brady prongs were satisfied, I would include this claim in a

cumulative prejudice analysis.

I agree with the majority that trial counsel’s performance was

deficient in failing to object to several of the State’s comments in

closing argument—namely that “[p]hysical evidence cannot be

wrong,” “[i]t is impossible for the criminal to act without leaving

behind traces of his presence,” and “there is no unidentified

forensic evidence belonging to anybody else inside of this murder

scene and there is no unidentified blood on any of this clothing.”

While these comments standing alone did not prejudice Simpson, I

would consider them in a cumulative prejudice analysis along with

the State’s failure to disclose Little Archie’s history as a confidential

source and the improper prosecutorial comments that were

identified on direct appeal as capable of being construed as

improper bolstering. See Simpson v. State, 3 So. 3d 1135, 1147 n.7

(Fla. 2009).

I would conclude that in the context of this case, the

comments that “[p]hysical evidence cannot be wrong” and “[i]t is

impossible for the criminal to act without leaving behind traces of

- 39 -
his presence” did not prejudice Simpson. In fact, I would view the

State’s argument that it is impossible for a criminal to act without

leaving behind traces of his presence to have been favorable to

Simpson, because there was no physical evidence inside the crime

scene linked to Simpson. I would find any prejudice from the

State’s comment that “there is no unidentified forensic evidence

belonging to anybody else inside of this murder scene and there is

no unidentified blood on any of this clothing” to be very limited in

light of the brevity of the statement and the contradictory evidence

presented at trial. The comments made by the State in its closing

argument that we stated on direct appeal could be construed as

impermissible bolstering, were brief and only minimally prejudicial.

Individually, the prejudice resulting from the improper

prosecutorial comments and the failure to disclose that Little Archie

had previously acted as a confidential source ranges from not

prejudicial to minimally prejudicial. Even when considered

cumulatively, I would conclude that the prejudice of these errors is

minimal and does not undermine confidence in the outcome of

Simpson’s trial.

- 40 -
Because I conclude that the failure to disclose Little Archie’s

history as a confidential source was not material under Brady, that

the cumulative effect of this failure together with the improper

comments made by the State during its closing do not undermine

confidence in the outcome of the trial, and that Simpson’s other

claims are without merit, I would affirm the denial of postconviction

relief as to the guilt phase and deny Simpson’s habeas petition on

the merits.

An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge
Case No. 162002CF011026AXXXMA
And an Original Proceeding – Habeas Corpus

John S. Mills, Thomas D. Hall, Courtney Brewer, Jonathan Martin,
and Bailey Howard of The Mills Firm, P.A., Tallahassee, Florida; and
Sonya Rudenstine, Gainesville, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,

for Appellee/Respondent

Amity Boye and Ariel Oseasohn of White & Case LLP, New York,
New York, and Raoul G. Cantero of White & Case LLP, Miami,
Florida,

for Amici Curiae the Innocence Project and Innocence Project
of Florida

- 41 -