David James Martin v. State of Florida

• Court: Supreme Court of Florida
• Decided: May 6, 2021
• Docket: SC18-896
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC18-896 ____________

DAVID JAMES MARTIN, Appellant,

vs.

STATE OF FLORIDA, Appellee.

May 6, 2021

PER CURIAM.

David James Martin challenges the denial of his second and

third amended motions to vacate judgment and sentence, filed

under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. Among other things,

we address the standard for evaluating postconviction claims of

juror misconduct based on the juror’s nondisclosure of information

during voir dire. FACTUAL AND PROCEDURAL BACKGROUND

In 2008, a grand jury indicted Martin on one count of first-

degree murder and one count of armed robbery. Martin v. State,

107 So. 3d 281, 287 (Fla. 2012). Jury selection for Martin’s trial

began in November 2009. During voir dire, the prosecuting

attorney asked the potential jurors about prior arrests, including

prior arrests of the potential jurors’ close friends or family

members. Many of the potential jurors revealed prior arrests and

convictions, including DUI convictions, in response to the

prosecutor’s questions, but juror Smith—one of the potential jurors

who eventually served at trial—remained silent throughout the voir

dire questioning. The prosecuting attorney then asked if any of the

potential jurors, or any of their close friends or family members,

had been victims of violent crime. Again, juror Smith remained

silent. As we explain later, in actuality juror Smith as a minor had

been adjudicated delinquent for sexual battery in 1985; he had a

1992 DUI conviction; and, in 1977 or 1978 (when juror Smith was

10 years old), his grandmother murdered his grandfather.

At trial, evidence was presented showing that on the day of the

murder, the victim, Jacey McWilliams, told her mother and a

-2- coworker that she was spending that evening with a friend named

“David.” Id. at 288. When Jacey’s mother reported Jacey missing a

few days later, the police began investigating. Id. at 287. Martin

was arrested for shoplifting in Pinellas County, and officers

confirmed that he had possession of Jacey’s vehicle and had

purchased food and tried to withdraw cash using Jacey’s ATM card.

Id. at 288-89.

In a recorded interview, officers questioned Martin about

Jacey’s whereabouts. Id. at 288. At first, Martin told the

interrogating detectives that Jacey let him borrow her car, and that

she was alive when he last saw her. Id. But Martin’s story changed

gradually over the course of the interview, and eventually he

confessed to murdering Jacey. Id. He told the detectives that while

he was out with Jacey on the night in question, he was also

communicating via text with his girlfriend. Id. at 289. The

girlfriend was upset about Martin being out with another woman.

So, under pretense of getting a cigarette from Jacey’s vehicle,

Martin got a hammer, returned to Jacey, and bludgeoned her to

death with it. Id. He said that he hid Jacey’s body and then drove

-3- her car to St. Petersburg to see his girlfriend, who described him as

“giddy” when he arrived. Id.

The State presented Martin’s videotaped confession at trial,

plus police testimony about the evidence of guilt law enforcement

obtained during the investigation. One of the State’s witnesses

testified that the police tracked Martin’s cell phone and learned that

on the night of the murder, Martin’s cell phone communicated with

cell phone towers located near the crime scene.

Against the advice of counsel, Martin testified on his own

behalf. Id. at 290. He told the jury that the confession he gave

during the police interview was false. Id. Martin testified that

another individual—a drug-dealing acquaintance named Michael

Gregg—was with Martin and Jacey on the night in question, and

that it was Gregg who killed Jacey while Martin watched in horror.

Id. Martin claimed that he lied to police because Gregg threatened

to harm Martin’s loved ones if he told anyone what happened. Id.

The jury found Martin guilty of first-degree murder and armed

robbery, id. at 291, and the trial court sentenced Martin to death

-4- and to thirty years in prison, respectively, id. at 292. 1 We affirmed

Martin’s convictions and sentences, id. at 325,2 and his judgment

became final in June 2013 when the United States Supreme Court

denied review, see Martin v. Florida, 570 U.S. 908 (2013).

In June 2014, Martin filed a motion for postconviction relief

under Florida Rule of Criminal Procedure 3.851. 3 Later that year,

1. Facts about the underlying murder and the evidence presented at trial are described in detail in our opinion on direct appeal. Id. at 287-90. Facts relevant to the issues in this postconviction appeal will be discussed in the analysis below.

2. Martin raised the following claims on direct appeal: (1) his confession was inadmissible because he had invoked his right to remain silent; (2) his confession was inadmissible because it was coerced; (3) the trial court erred in finding the existence of the “cold, calculated, and premeditated” aggravating circumstance; (4) the trial court erred in rejecting abuse and remorse as mitigating circumstances; (5) the trial court erred in refusing to consider a defense expert’s testimony on aggravating and mitigating circumstances; (6) Florida’s death penalty law is unconstitutional under the Sixth Amendment; and (7) Martin’s death sentence was disproportionate.

3. Martin alleged that: (1) the State failed to comply with the discovery requirements of Florida Rule of Criminal Procedure 3.852; (2) trial counsel was ineffective by failing to retain a confession expert for the suppression hearing and trial; (3) trial counsel was ineffective for failing to adequately litigate Martin’s motion to suppress his confession; (4) trial counsel was ineffective by failing to adequately challenge the State’s cell phone tracking evidence; (5) trial counsel was ineffective by failing to call witnesses at trial in support of Martin’s version of events; (6) trial counsel provided

-5- he filed an amended motion, adding a claim that trial counsel

provided ineffective assistance by failing to ascertain that juror

Smith concealed a DUI conviction during voir dire. In its answer to

Martin’s amended 3.851 motion, the State asserted that this

ineffective assistance claim should be explored at an evidentiary

hearing. In January 2017, Martin filed a second amended

postconviction motion, adding a claim that his sentence was illegal

under this Court’s decision in Hurst v. State, 202 So. 3d 40 (Fla.

2016). The postconviction court granted Martin a new penalty

phase hearing but summarily denied his guilt phase claims.

Martin filed a motion for rehearing, and the postconviction

court withdrew its previous order and entered a new order, granting

an evidentiary hearing on Martin’s ineffective assistance of counsel

claim relating to juror Smith’s concealment of information. Then,

postconviction discovery documents produced by the State showed

ineffective penalty phase assistance by failing to obtain necessary experts, witnesses, and mental health records; (7) trial counsel was deficient in making inflammatory and prejudicial remarks about Martin during closing argument; (8) trial counsel was ineffective by failing to present relevant mitigating sentencing factors; (9) lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment; and (10) cumulative error.

-6- that juror Smith had a juvenile delinquency adjudication for sexual

battery—another fact Smith failed to disclose during voir dire.

Based on this new information, the court granted Martin leave to

interview juror Smith.

While deposing juror Smith, Martin’s postconviction counsel

asked Smith if he had omitted anything else during voir dire, and

Smith admitted that when he was a child, his grandmother was

convicted of murdering his grandfather. Based on the information

obtained during the deposition, Martin filed a third amended rule

3.851 motion, incorporating the claims raised in his previous

motion and adding a new ground for relief based on what Martin

described as “newly discovered evidence.” Specifically, Martin

alleged that in addition to concealing a prior DUI conviction, juror

Smith concealed a juvenile sexual battery adjudication and the fact

that his grandfather had been murdered by Smith’s grandmother.

Martin argued that this newly discovered evidence of juror

misconduct entitled him to postconviction relief.

At the evidentiary hearing on that claim, juror Smith testified

that he had indeed failed to disclose his criminal history and

grandfather’s murder in response to relevant voir dire questions

-7- asked by the prosecuting attorney. He further disclosed (for the

first time) that his uncle had also been implicated in the murder of

Smith’s grandfather. Juror Smith insisted, however, that he never

deliberately lied and that he did not remember hearing the relevant

voir dire questions when they were asked. He also said he was not

sure if he ever spent a night in jail for his crimes (the relevant

question on voir dire had been about arrests for crimes “where

someone had to go to jail at least overnight”). He further testified

that the matters he failed to disclose were not on his mind during

Martin’s trial, and he swore he decided the case on the evidence.

Martin’s trial counsel testified at the evidentiary hearing that he

likely would have attempted a cause challenge or used a

peremptory strike if he had known of juror Smith’s dishonesty at

the time of trial. Trial counsel’s testimony at the evidentiary

hearing was unclear as to whether he would have attempted to

strike juror Smith based on the underlying facts themselves,

separate from Smith’s dishonesty.

After the evidentiary hearing, the postconviction court entered

a new order, again granting Martin a new penalty phase hearing

(based on Hurst error) and again denying all of Martin’s guilt phase

-8- claims. The court denied Martin’s claim that trial counsel had

failed to adequately question juror Smith or file a motion for new

trial based on Smith’s failure to disclose his DUI conviction, ruling

that this ineffective assistance claim failed for lack of actual bias on

the face of the trial record, citing Carratelli v. State, 961 So. 3d 312,

324 (Fla. 2007). As to Martin’s “newly discovered evidence” claim,

the court applied the newly discovered evidence test articulated in

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998), and found that

although Smith’s juvenile adjudication and grandfather’s murder

could not have been discovered at the time of trial by the use of

diligence, the evidence of Smith’s juror misconduct was not of such

a nature that it would probably produce an acquittal on retrial.

Martin now appeals the postconviction court’s order, arguing

that the court erred in denying his claim of newly discovered juror

misconduct. 4 Martin further argues that the court erred in

summarily denying four of his guilt phase ineffective assistance of

4. At oral argument, Martin’s postconviction counsel clarified that Martin was asserting a standalone juror misconduct claim, which was “newly discovered” in the sense that it could not have been discovered within a year of final judgment.

-9- counsel claims,5 and that the cumulative effect of all errors requires

a new trial. For the reasons set forth below, we affirm.

ANALYSIS

I. Juror Smith’s Concealment of Information During Voir Dire

It is well established that “the right to jury trial guarantees to

the criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors. The failure to accord an accused a fair hearing

violates even the minimal standards of due process.” Irvin v. Dowd,

366 U.S. 717, 722 (1961) (citing In re Oliver, 333 U.S. 257 (1948);

Tumey v. Ohio, 273 U.S. 510 (1927)). The right to an impartial jury

trial is secured by the Sixth Amendment and by the Due Process

Clause of the Fourteenth Amendment. Morgan v. Illinois, 504 U.S.

719, 726-27 (1992); Turner v. Louisiana, 379 U.S. 466, 471-72

(1965). This Court has recognized that whenever a potential juror

is affected by bias or prejudice against the defendant, “it cannot be

said that he is fair-minded and impartial, and, if accepted as a

5. Although Martin challenges the court’s denial of certain ineffective assistance of counsel claims, he does not challenge, and has therefore abandoned, his claim that trial counsel was ineffective for failing to adequately question Juror Smith or to ascertain Smith’s DUI conviction and file a motion for new trial.

- 10 - juror, that he would be of that standard of impartiality which is

necessary to prevent an impairment of the right to jury trial.”

Johnson v. Reynolds, 121 So. 793, 796 (Fla. 1929); see also Dyer v.

Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (“The bias or prejudice

of even a single juror would violate [defendant]’s right to a fair

trial.”).

The issue here is whether Martin has demonstrated that, in

light of juror Smith’s failure to disclose certain facts during voir

dire, Martin was denied the right to be tried by an impartial jury.

To recap, in his third amended rule 3.851 postconviction motion,

Martin has alleged that when the prosecuting attorney asked the

potential jurors if they (or any of their close friends or family

members) had ever been arrested and spent a night in jail, juror

Smith concealed a prior DUI conviction and a long-distant juvenile

delinquency adjudication for sexual battery. Martin also has

alleged that when the prosecutor asked the potential jurors if they

(or any close friends or family members) had ever been victims of

violent crime, juror smith concealed the fact that when he was a

child, his grandfather was murdered by family members.

- 11 - In the two previous iterations of his 3.851 motion, when

postconviction counsel knew only of juror Smith’s failure to disclose

a DUI conviction, Martin alleged ineffective assistance of counsel—

i.e., that trial counsel failed to discover Smith’s nondisclosure in

time to raise a cause challenge or exercise a peremptory strike, or at

least in time to argue juror misconduct as a basis for a motion for

new trial. See Fla. R. Crim. P. 3.600(b)(4) (providing that a trial

court shall grant a new trial if substantial rights of the defendant

were prejudiced because “any juror was guilty of misconduct”). But

when Martin discovered through postconviction discovery that

Smith also failed to disclose a juvenile delinquency adjudication

and his grandfather’s murder, Martin amended his 3.851 motion to

add a new claim alleging that juror Smith’s misconduct, in and of

itself, provided a basis for postconviction relief. Martin does not

allege in his third amended rule 3.851 motion that his trial counsel

was ineffective for failing to learn of Smith’s juvenile adjudication

and family murder. In fact, Martin insists that his trial counsel

reasonably relied on Smith’s voir dire answers.

A. Whether Martin’s Claim is Procedurally Barred

- 12 - At the threshold, the State argues that a standalone juror

misconduct claim such as this one is procedurally barred because it

could have been and should have been raised on direct appeal. The

State relies on Diaz v. State, 132 So. 3d 93, 104-05 (Fla. 2013),

where we held that a juror misconduct claim alleging concealment

of information during voir dire was procedurally barred because

defense counsel could have filed a motion to interview the juror

shortly after the verdict and then raised the issue on direct appeal.

However, in Diaz, the undisclosed facts were the juror’s

history of domestic violence charges and arrests, a restraining order

issued against the juror, and the fact that the juror worked as a

domestic violence counselor. Id. at 104. These undisclosed facts

were all easily discoverable by trial counsel with diligence, meaning

the asserted misconduct could have been raised on direct appeal.

See id. at 105. By contrast, here the postconviction court found,

and the State concedes, that defense counsel could not have

discovered Smith’s juvenile adjudication or grandfather’s murder

absent voluntary disclosure from Smith himself or from the State.

Because Martin could not have discovered the underlying facts

about juror Smith with due diligence in time to argue this claim in

- 13 - the direct appeal, we reject the State’s argument that Martin’s claim

could have been raised on direct appeal and is therefore

procedurally barred. 6

The next question is whether Martin’s claim is procedurally

barred for another reason—that is, for being raised outside the one-

year filing deadline for capital postconviction claims imposed by

rule 3.851(d)(1). Because Martin first raised this claim more than a

year after his judgment and sentence became final, we cannot

consider the claim unless “the facts on which the claim is

predicated were unknown to the movant or the movant’s attorney

and could not have been ascertained by the exercise of due

6. Some language in prior decisions of this Court suggests that standalone juror misconduct claims are barred unless raised on direct appeal. See, e.g., Troy v. State, 57 So. 3d 828, 838 (Fla. 2011); Elledge v. State, 911 So. 2d 57, 77 n.27 (Fla. 2005) (“[A]ny substantive claim pertaining to juror misconduct is procedurally barred as it could have and should have been raised on direct appeal.”). It is true that juror misconduct claims that are discoverable with diligence during or immediately after trial are procedurally barred when raised in postconviction proceedings. But we have never held that a juror misconduct claim is procedurally barred even in circumstances where the claim could not have been discovered with due diligence prior to the direct appeal. Indeed, as recently as 2015, we reached the merits of a substantive juror misconduct claim brought in the postconviction context. See Boyd v. State, 200 So. 3d 685, 694 (Fla. 2015).

- 14 - diligence.” Fla. R. Crim. P. 3.851(d)(2)(A)7; see also Byrd v. State,

14 So. 3d 921, 924 (Fla. 2009) (“Claims of newly discovered

evidence must be brought within a year of the date the evidence

was or could have been discovered through due diligence.”). The

question whether Martin’s trial counsel could have discovered

Smith’s juvenile adjudication and grandfather’s murder and raised

a claim on direct appeal is an entirely different question from

whether Martin’s postconviction counsel could have discovered this

claim by the use of diligence within one year after the appellate

mandate was entered and the United States Supreme Court denied

certiorari review.

Here, the State has conceded that Smith’s juvenile

adjudication and grandfather’s murder were not discoverable

absent voluntary disclosure from Smith himself or from the State.

Such voluntary disclosure occurred during postconviction

7. There are two other enumerated bases for an otherwise untimely rule 3.851 claim to be considered timely: if the fundamental constitutional right asserted was not established within the one-year window and has been held to apply retroactively, or if postconviction counsel, through neglect, failed to file the motion. Fla. R. Crim. P. 3.851(d)(2)(B)-(C). Neither exception applies here.

- 15 - proceedings, and Martin filed this claim within a year of the

disclosure. Therefore, we hold that Martin’s claim falls within the

exception to the one-year filing deadline set forth in rule

3.851(d)(2)(A).

B. The Standard for Evaluating Postconviction Juror Misconduct Claims

Having determined that Martin’s claim is not procedurally

barred, we will now assess whether Martin is entitled to

postconviction relief on the merits. Because the parties disagree

about the correct standard for evaluating Martin’s juror misconduct

claim, we begin by clarifying that standard, emphasizing at the

outset the significance of the fact that Martin’s claim arises in the

postconviction context.

We most recently resolved the merits of a comparable

postconviction juror misconduct claim in Boyd v. State, 200 So. 3d

685 (Fla. 2015). The defendant in Boyd sought relief on the basis

that “two jurors failed to disclose information pertinent to his

decision to retain them for jury service, thereby denying him a fair

and impartial jury.” Id. at 693-94. Boyd alleged that the jurors at

issue in his case had concealed their status as felons and that the

- 16 - seating of legally ineligible jurors “per se entitled” him to a new trial.

Id. at 697. We rejected Boyd’s argument and held that, to establish

the requisite prejudice in the postconviction context, there must be

a showing, “based on legally sufficient evidence, of actual juror bias

against the defendant.” Id. at 697. Subject to one clarification that

we will explain below, we adhere to our holding in Boyd and apply

Boyd’s actual bias standard to Martin’s claim.

The predicate for a juror misconduct claim of this nature is

failure on the part of a juror “to answer honestly a material

question on voir dire.” McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548, 556 (1984). 8 Thus, a mistaken but honest answer to

8. In McDonough, the Supreme Court addressed a juror misconduct claim and held that “to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S. at 556. Although our analysis here is informed by McDonough, we disagree with the United States district court’s decision in Boyd v. Inch, No. 16- 62555-CIV-GAYLES, 2019 WL 3002922 (S.D. Fla. July 10, 2019), that McDonough is clearly established federal law for the postconviction context. First, McDonough is an ordinary civil case, not a postconviction case. Second, although federal courts routinely apply McDonough in the criminal and postconviction contexts, they have adopted materially different interpretations of McDonough’s prejudice test. Compare United States v. Boney, 977 F.2d 624, 635 (D.C. Cir. 1992) (remanding for evidentiary hearing to

- 17 - a question—either because the juror mistakenly believed his answer

was correct or because the question was unclear—will not warrant

postconviction relief. See id. And a “material” question is one that

has “a natural tendency to influence, or [is] capable of influencing,”

the determination of whether a juror is actually biased against the

defendant. Neder v. United States, 527 U.S. 1, 16 (1999) (explaining

materiality in the jury instruction context) (quoting United States v.

Gaudin, 515 U.S. 506, 509 (1995)).

Proving a juror’s dishonesty in response to a material question

does not end the analysis, because the defendant additionally must

establish that the dishonesty resulted in prejudice. More

specifically, in postconviction proceedings, the challenger must

establish that the juror’s misconduct resulted in the defendant

being denied his constitutional right to an impartial jury. And to

make that showing, the challenger must prove “actual juror bias

against the defendant.” Boyd, 200 So. 3d at 697. This actual bias

determine whether juror’s nondisclosure “resulted in actual bias to the appellants”), with Sampson v. United States, 724 F.3d 150, 166 (1st Cir. 2013) (test is whether the juror “has both the capacity and the will to decide the case solely on the evidence”).

- 18 - standard necessarily means that not all instances of juror

concealment will entitle a postconviction challenger to a new trial.

As the Supreme Court observed in McDonough, “[t]he motives for

concealing information may vary, but only those reasons that affect

a juror’s impartiality can truly be said to affect the fairness of a

trial.” McDonough, 464 U.S. at 556. So, if the record shows that a

juror withheld personal information for some reason other than to

conceal a bias or prejudice—to avoid embarrassment, for example—

a postconviction juror misconduct claim based on concealment of

information during voir dire will fail.

“[A]ctual bias means bias-in-fact that would prevent service as

an impartial juror.” Boyd, 200 So. 3d at 698 (quoting Carratelli,

961 So. 3d at 324). Put differently, it is the challenger’s burden to

prove that the disputed juror “could not be fair and impartial and

follow the law as instructed by the trial court.” Id. at 696. Unless

the defendant can prove that a juror who was actually biased

against him sat on the jury, there is no basis for postconviction

relief. That is because, absent such a showing, the defendant will

not have established a denial of his right to an impartial jury.

- 19 - There is, however, one aspect of our decision in Boyd that

needs clarification. In Boyd, as in this case, we addressed a

standalone juror misconduct claim—not a claim based on

ineffective assistance of counsel. Id. at 693-94. Yet in Boyd we

appeared to borrow from our decision in Carratelli (an ineffective

assistance of counsel case) the principle that the evidence of a

juror’s actual bias “must be plain on the face of the record.” See id.

at 698 (quoting Carratelli, 961 So. 2d at 324). In cases governed by

Carratelli, “the record” is the record of the voir dire conducted for

jury selection. What we meant in Boyd by “the record” is unclear.

We now clarify that, in postconviction cases raising standalone

juror misconduct claims like the one here, an evidentiary hearing

will sometimes be needed to determine whether a juror was

intentionally dishonest and, if so, whether the defendant can prove

actual bias. It would not make sense in this context to apply the

Carratelli rule of looking exclusively to the face of the voir dire

record. A Carratelli claim requires the postconviction court to

measure counsel’s performance in light of what the attorney heard

from potential jurors during voir dire. By contrast, a standalone

juror misconduct claim is premised on a prospective juror’s alleged

- 20 - concealment of information during voir dire, despite counsel’s

reasonable efforts to elicit that information. As the Supreme Court

recognized long ago, “the remedy for allegations of juror partiality is

a hearing in which the defendant has the opportunity to prove

actual bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982).

This is not to say that evidentiary hearings will be required to

resolve every standalone juror misconduct claim. Undoubtedly

there will be cases where the pre-hearing record before the

postconviction court will conclusively refute the defendant’s

allegations of juror dishonesty and actual bias. We also note that in

cases where a hearing is held, any questioning of the juror must be

consistent with section 90.607(2)(b), Florida Statutes (2020), which

provides: “Upon an inquiry into the validity of a verdict or

indictment, a juror is not competent to testify as to any matter

which essentially inheres in the verdict or indictment.” See

Marshall v. State, 854 So. 2d 1235, 1240 (Fla. 2003) (“A juror is not

competent to testify about matters inhering in the verdict, such as

jurors’ emotions, mental processes, or mistaken beliefs.”); cf.

Warger v. Shauers, 574 U.S. 40, 44 (2014) (the federal rule generally

- 21 - barring evidence of statements made during jury deliberations

applies to inquiries into whether a juror lied during voir dire).

Against this backdrop, it should be clear why we disagree with

Martin’s argument that his claim is governed by the standard set

forth in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995). De La

Rosa was not a postconviction case; it was a traditional civil case in

which this Court evaluated a juror misconduct claim on review

following a direct appeal to a district court of appeal. In that

specific context, the Court approved a three-part test for evaluating

“whether a juror’s nondisclosure of information during voir dire

warrants a new trial.” Id. at 241. “First, the complaining party

must establish that the information is relevant and material to jury

service in the case. Second, that the juror concealed the

information during questioning. Lastly, that the failure to disclose

the information was not attributable to the complaining party’s lack

of diligence.” Id.

We disagree with Martin’s argument that our case law requires

application of De La Rosa in these circumstances. As we have

explained, Boyd is the most recent postconviction case in which we

resolved a comparable juror misconduct claim on the merits. And

- 22 - in Boyd, we applied an actual bias standard, not the De La Rosa

standard. Our decision in Boyd is not in conflict with any of our

decisions before or since.9

Even if we were writing on a blank slate, we would conclude

that the De La Rosa standard is far too lenient for the

postconviction context. By design, the De La Rosa test is intended

to vindicate a litigant’s right to make informed challenges against

potential jurors—either for cause or peremptorily. Under our case

law, a trial court must grant a cause challenge if there is any

reasonable doubt that the juror possessed the state of mind that

would have enabled the juror to render an impartial verdict. Cozzie

v. State, 225 So. 3d 717, 727 (Fla. 2017). That generous,

prophylactic standard excludes many potential jurors whose

9. In Braddy v. State, 219 So. 3d 803, 825 (Fla. 2017), which Martin relies on extensively for his argument that this Court applies De La Rosa in these circumstances, we did discuss the De La Rosa test in dicta when discussing the complainant’s lack of diligence. Ultimately, though, we held that Braddy’s claim was procedurally barred because it could have been raised on direct appeal. Id. Similarly, we have discussed De La Rosa when reviewing ineffective assistance of counsel claims alleging failure to raise a juror misconduct claim in a motion for new trial. See, e.g., Johnston v. State, 63 So. 3d 730, 739 (Fla. 2011). But as we have explained, Martin’s juror misconduct claim is not based on ineffective assistance of counsel.

- 23 - presence would not have violated the defendant’s constitutional

right to an impartial trial if they had served on the jury. This is

even more true with regard to peremptory challenges, which can be

exercised on any basis (subject to prohibitions on invidious

discrimination) and which do not implicate any rights of

constitutional dimension. See United States v. Martinez-Salazar,

528 U.S. 304, 311 (2000). The De La Rosa test vindicates interests

broader than those appropriate for the postconviction context, in

which the question is whether presumptively valid final judgments

must be overturned on account of underlying constitutional

violations.

Finally, we conclude this discussion by explaining why it

would be incorrect to evaluate Martin’s juror misconduct claim

under the Jones test for standalone newly discovered evidence

claims. As we have noted, in response to Martin labeling his claim

as one based on “newly discovered evidence,” the postconviction

court evaluated (and rejected) the claim under the Jones

framework. Though the postconviction court ultimately reached the

right result, it got there for the wrong reasons.

- 24 - In Jones itself, the postconviction claimant maintained that he

was innocent of the crime of conviction, and he alleged that newly

discovered evidence proved his innocence and established the true

killer’s identity. 709 So. 2d at 521. This Court held that “in order

to be considered newly discovered, the evidence ‘must have been

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

of trial, and it must appear that defendant or his counsel could not

have known [of it] by the use of diligence.’ ” Id. (alteration in

original) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-

25 (Fla. 1994). Turning to prejudice, we held that “the newly

discovered evidence must be of such nature that it would probably

produce an acquittal on retrial.” Id. We added that trial courts

must “ ‘consider all newly discovered evidence which would be

admissible’ at trial and then evaluate the ‘weight of both the newly

discovered evidence and the evidence which was introduced at the

trial.’ ” Id. (quoting Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)).

Hence the familiar three-part inquiry that Florida courts have since

used to determine the merits of standalone newly discovered

evidence claims.

- 25 - Martin’s claim is not a standalone newly discovered evidence

claim. Such claims—Jones claims—are premised on an allegation

that the jury did not hear previously unavailable evidence material

to guilt or innocence, and that the introduction of such evidence

probably would have led to the defendant’s acquittal. See id. at 514

(observing that “Jones alleged that newly discovered evidence

established his innocence”) (emphasis added). By contrast, the juror

misconduct claim in this case has nothing to do with evidence

about Martin’s factual guilt or innocence. Instead, Martin’s claim is

that juror misconduct resulted in a denial of Martin’s right to an

impartial jury.

When a defendant raises a standalone juror misconduct claim

like Martin’s in postconviction proceedings, there will always be

threshold questions about the timeliness of such a claim, because

the defendant will have to demonstrate that he could not have

raised the claim on direct appeal. In that sense, postconviction

standalone juror misconduct claims will always be predicated on

evidence that is asserted to have been previously unavailable. But

once the defendant has established that his juror misconduct claim

is timely, the postconviction court’s consideration of the claim on

- 26 - the merits must be governed by the standards we have articulated

here—standards designed to vindicate the defendant’s right to an

impartial jury—not by the standards set out in Jones.

C. Evaluating Martin’s Juror Misconduct Claim Under the Actual Bias Standard

The order denying Martin’s juror misconduct claim contains

factual findings that allow us to evaluate the merits of that claim.

The postconviction court found that Martin “failed to demonstrate

that juror Smith was actually biased against [him], could not be fair

and impartial, and could not follow the law as instructed.” The

postconviction court also found that juror Smith’s testimony at the

hearing was credible and that Smith did not intentionally withhold

the information during trial due to bias or prejudice.

Competent and substantial evidence supports the

postconviction court’s findings; in fact, no evidence introduced at

the evidentiary hearing shows that Smith’s failure of disclosure was

motivated by partiality or a bias-in-fact against Martin, as required

to establish that Martin was deprived of his constitutionally

protected right to an impartial jury. Juror Smith admitted at the

evidentiary hearing that he failed to disclose his criminal history

- 27 - and his grandfather’s murder in response to relevant voir dire

questions, but Smith also swore that his prior criminal history was

not on his mind and did not impact in any way his ability to give

Martin a fair trial. Smith further swore that his grandfather’s

murder did not have any impact on his decision to vote to convict

Martin. This was consistent with his deposition testimony, where

juror Smith said that his prior incidents were “[a]ll behind me, man.

25, 30 years ago.”

Smith also testified that he did not think he ever spent an

entire night in jail—which was how the prosecutor framed the

question about prior criminal activity. And the postconviction court

attached portions of the record where juror Smith said he did not

remember hearing the voir dire questions. Thus, although the

postconviction court incorrectly analyzed Martin’s claim under the

framework of Jones, competent and substantial evidence presented

at the evidentiary hearing supports the postconviction court’s

finding that there was no actual bias. Accordingly, Martin’s juror

misconduct claim was properly denied. Cf. Robertson v. State, 829

So. 2d 901, 906 (Fla. 2002) (recognizing that an appellate court may

affirm a trial court that reaches the right result for the wrong

- 28 - reason, as long as there is any basis that would support the

judgment in the record).

II. Summarily Denied Ineffective Assistance Claims

Next, Martin argues that the postconviction court erred in

summarily denying four guilt phase ineffective assistance of counsel

claims. “To be entitled to an evidentiary hearing on a claim of

ineffective assistance, the defendant must allege specific facts that

are not conclusively rebutted by the record and which demonstrate

a deficiency in performance that prejudiced the defendant.”

Anderson v. State, 220 So. 3d 1133, 1142 (Fla. 2017) (quoting

Rhodes v. State, 986 So. 2d 501, 513-14 (Fla. 2008)). To establish

prejudice, the defendant’s allegations must demonstrate that “there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). A court’s

decision to grant or deny an evidentiary hearing on a rule 3.851

motion is subject to de novo review. Cannon v. State, 45 Fla. L.

Weekly 568, 569, 2020 WL 717823, at *2 (Fla. Feb. 13, 2020)

(quoting Salazar v. State, 188 So. 3d 799, 808 (Fla. 2016)).

- 29 - Martin argues that he was entitled to an evidentiary hearing

on the following four ineffective assistance of counsel claims: (1)

counsel failed to retain and call a false confession expert at the

suppression hearing and at trial; (2) counsel failed to call witnesses

at the suppression hearing to testify about Martin’s vulnerability to

coercion; (3) counsel failed to challenge trial testimony about the

police tracking Martin’s cell phone; and (4) counsel failed to

investigate and call witnesses at trial to corroborate Martin’s story.

We affirm the postconviction court’s summary denial of relief as to

all four claims.

A. Failure to Call Witnesses to Challenge Martin’s Confession

We begin with Martin’s assertions of ineffectiveness regarding

counsel’s efforts to exclude Martin’s confession. It is undisputed

that trial counsel moved to suppress Martin’s confession and then

argued at the suppression hearing that Martin’s confession was the

result of psychological coercion and “undue influence on a 20-year-

old individual who ha[d] never been interrogated before up to that

point.” Likewise, the record supports the postconviction court’s

finding that “[c]ounsel questioned Detective West about Defendant’s

mental state, his age, and sleep deprivation.” The transcript of the

- 30 - suppression hearing also shows that during cross-examination,

counsel did not merely inquire about coercive techniques and quid

pro quo promises but also about the interrogating officers’

knowledge: (1) that Martin was tired from being on the road for

days, (2) that Martin was just a “kid” (the detectives’ own words); (3)

that Martin requested mental health services during the interview;

and (4) that Martin expressed a desire to go to rehab for recent drug

use.

Nonetheless, Martin alleges that his counsel’s performance at

the suppression hearing was deficient because counsel did not

present testimony from a false confession expert, a psychologist, a

toxicologist, and various lay witnesses familiar with Martin’s mental

and emotional fragility. Relying on this Court’s observation on

direct appeal that the interrogating officers’ techniques represented

the outer limit of permissible tactics, see Martin, 107 So. 3d at 298,

Martin alleges that his confession probably would have been

excluded if counsel had called these witnesses at the suppression

hearing.

Although we did note in our opinion on direct appeal that

“some of the tactics and techniques used by the detectives may

- 31 - have been less than ideal,” we conducted a lengthy examination of

the interrogating officers’ actions and statements, and we ultimately

held that the interview “[could not] be characterized as so coercive

as to render Martin’s confession involuntary.” Id. at 316. Because

the issue of whether the police conduct rendered Martin’s

confession involuntary was already argued on direct appeal, Martin

is not permitted to relitigate that issue now. See Walker v. State, 88

So. 3d 128, 137 (Fla. 2012). He is instead limited to arguing that

his counsel failed to give the court a complete picture of the totality

of the circumstances and that he was prejudiced by that purported

deficiency. See Rose v. State, 985 So. 2d 500, 504 (Fla. 2008)

(“[T]he rule prohibiting the actual relitigation of issues is not so

expansive that it procedurally bars a claim of ineffective assistance

of counsel in a postconviction motion where counsel’s failure to act,

or not act, is precisely the deficiency that may have prevented a

proper review of the issue on direct appeal.”).

We hold that summary denial of this claim was proper

because even if these witnesses testified in the manner alleged, the

unpresented testimony does not show that counsel so failed to

supply the trial court with the circumstances of the confession that

- 32 - Martin was deprived of his right to counsel. See Teffeteller v.

Dugger, 734 So. 2d 1009, 1022 n.14 (Fla. 1999) (“[T]he legal

standard is reasonably effective counsel, not perfect or error-free

counsel.”).

At the suppression hearing, Martin’s counsel questioned

Detective West about the interrogating officers’ knowledge at the

time of the interview that Martin was only twenty years old, had

mental health and drug issues, and was tired during the interview.

Even if Martin’s proposed lay witnesses would testify that Martin

did in fact use drugs, did have mental health issues, and had in

fact been operating on little sleep, such testimony does not present

any novel aspect of the circumstances of the confession that

counsel did not already bring to the trial court’s attention. And the

trial court did not need testimony from a confessionologist to

conclude that young people with mental health problems and little

experience with interrogations might have a harder time

withstanding high-pressure police tactics, or that lack of sleep and

drug use might further weaken one’s willpower. We therefore hold

that Martin’s allegations fail to show that counsel was so deficient

- 33 - in his efforts to suppress the confession that the performance fell

below the wide range of permissibility.

We also agree with the postconviction court that Martin’s

allegations of prejudice are conclusory. To be entitled to an

evidentiary hearing, Martin must demonstrate, through his

allegations, that but for counsel’s failure to call these witnesses at

the suppression hearing, there is a reasonable probability that the

result of Martin’s trial would have been different. The trial court

heard argument from counsel about the detectives exerting

psychological pressure on a vulnerable individual yet ruled that the

confession was not coerced and found that Martin “voluntarily

talked throughout the entire transcript I have before me.” Martin’s

allegation that the court would have made different findings or

rulings had counsel called witnesses to support those arguments is

speculative and conclusory. Because Martin has not shown a

reasonable probability that the trial court would have suppressed

Martin’s confession, our confidence in the outcome of Martin’s trial

is not undermined.

Martin also asserts that, notwithstanding the legal

admissibility of the confession, counsel was ineffective for failing to

- 34 - call a confession expert at trial, arguing that such testimony would

have persuaded the jury to disregard Martin’s introduced

confession. See Fla. Std. Jury Instr. (Criminal) 3.9(b) (providing

that if the jurors conclude that a defendant’s out-of-court statement

was not freely and voluntarily made, they should disregard the

statement). The postconviction court denied this claim as well,

ruling that the proposed expert testimony was not likely to have

changed the outcome of trial, given the evidence of guilt that was

introduced in addition to the confession. See Simmons v. State, 105

So. 3d 475, 493 (Fla. 2012) (testimony from a confession expert

would not have significantly diminished the incriminating effect of

the other evidence).

We agree with the postconviction court that Martin has not

shown a reasonable probability that the result of the trial would

have been different had a confession expert testified in the manner

alleged. Martin himself took the stand at trial and testified “that he

falsely confessed to the crime because his dealer, the actual

murderer, had threatened to hurt his (Martin’s) mother and

girlfriend if he told anyone what had happened.” Martin, 107 So. 3d

at 290. Therefore, the jurors already had a basis to disregard

- 35 - Martin’s confession if they believed it to be false. And it is highly

improbable that the jurors would have concluded that Martin’s

confession was not freely given to the police, considering Martin

himself informed them that he made a conscious and deliberate

decision to lie to the detectives for reasons unrelated to the

circumstances of the interrogation. Because Martin’s allegations,

taken as entirely true, do not demonstrate that Martin was

prejudiced by the absence of the purported testimony, we affirm the

postconviction court’s summary denial of this claim.

B. Failure to Challenge the State’s Cell Phone Tracking Evidence

Martin next argues that he was entitled to an evidentiary

hearing on his claim that trial counsel was ineffective for failing to

challenge or rebut testimony about the tracking of Martin’s cell

phone. The postconviction court ruled that Martin’s counsel had no

basis to challenge this admissible evidence and that the outcome of

the trial would not likely be any different if counsel had more

effectively rebutted the State’s evidence. We agree.

- 36 - Martin insists that United States v. Evans, 892 F. Supp. 2d

949, 953 (N.D. Ill. 2012)) and a trio of articles10 show that the cell

phone tracking evidence introduced at Martin’s trial was tenuous

and unreliable. But neither the articles nor that single federal case

out of the Northern District of Illinois were binding on the trial

court. See Taylor v. State, 62 So. 3d 1101, 1111 (Fla. 2011)

(holding that an alleged failure by counsel to cite “academic articles

and isolated, nonbinding decisions . . . cannot be considered

‘outside the broad range of reasonably competent performance

under prevailing professional standards’ ”) (quoting Pagan v. State,

29 So. 3d 938, 948 (Fla. 2009)). And even if those sources had

been persuasive to some extent, they were all published in 2010 or

later and therefore did not exist when counsel was preparing for

Martin’s 2009 trial. Just as trial counsel cannot be ineffective for

failing to anticipate a change in the law, counsel cannot be

ineffective for failing to use nonexistent sources to rebut evidence.

10. Mark Hanson, Prosecutors’ Use of Mobile Phone Tracking to Spot a Defendant is ‘Junk Science,’ Critics Say, A.B.A.J., June 2013, at 15; Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 Rich. J.L. & Tech. 1. (2011); Ced Kurtz, Cell Towers: Ugly But Useful, Pittsburg Post-Gazette, July 4, 2010, at 20.

- 37 - As to prejudice, although Martin testified that it was a drug-

dealing acquaintance who killed Jacey while Martin looked on in

horror, Martin admitted on the stand that he was present during

Jacey’s murder and that he traveled south by car afterward, just as

the cell phone tracking evidence indicated. Because Martin’s own

testimony established that he was at the crime scene, there is no

reasonable probability that a challenge to the accuracy of cell tower

signals would have resulted in a different outcome of the trial. As

Martin has not shown deficiency or prejudice, we affirm the

summary denial of relief as to this claim.

C. Failure to Present Evidence to Corroborate Martin’s Trial Testimony

Martin also argues that he was entitled to an evidentiary

hearing on his claim that counsel failed to call Michael Gregg, Tracy

Ray, and Cliff Putnam at trial. Martin alleges that Gregg would

have admitted to living near the cemetery where the police

recovered Jacey’s body and to being a registered sex offender who

engaged in sex acts with Martin in the past. Martin alleges that

Putnam would have testified that Gregg dealt drugs, owned

firearms, and lived in a camp of sex offenders. Martin alleges that

- 38 - Ray (Martin’s mother) would have testified that Gregg visited her

pawnshop and asked how Martin’s case was going.

A postconviction claimant can only show ineffective assistance

of counsel for failure to call witnesses at trial if he demonstrates

how the testimony would cast doubt on his guilt and how the

omission of the testimony prejudiced the outcome of his trial. Ford

v. State, 825 So. 2d 358, 360-61 (Fla. 2002). Martin has failed to

allege testimony that would challenge any evidence of guilt

presented at trial. Even assuming these witnesses would testify

exactly as alleged in Martin’s motion, and that every word of their

testimony would be admissible, the alleged testimony only indicates

that Martin was acquainted with a generally unsavory individual

who lived a few miles from where Jacey’s body was recovered, and

that this same individual saw Martin’s mother in a public place and

asked how her son’s case was going. Nothing about that evidence

inculpates another party for Jacey’s murder or indicates that

Martin could not have committed the crime if the testimony were

true.

Martin alleges that these witnesses would have “corroborated

aspects” of his trial testimony, but even if so, the proposed

- 39 - testimony would only have corroborated aspects that have little or

no connection with the charged offenses. For example, Martin

alleges that Putnam would have testified that Gregg owned

firearms, and such testimony would indeed have corroborated

Martin’s statement that Gregg had a gun. But Jacey was killed

with a hammer, and the State presented no ballistic evidence that

would be cast into doubt by Putnam’s testimony. Likewise, even if

all three witnesses could testify that Gregg was a sex offender, the

State presented no evidence suggesting that Jacey was killed by a

sex offender or that her murder had any sexual component

whatsoever. Because the proposed testimony would neither

exculpate Martin nor inculpate any other party, Martin has not

demonstrated that counsel was deficient for failing to call these

witnesses or that there is a reasonable probability that the result of

the trial would have been different but for counsel’s purported

error. See Simmons, 105 So. 3d at 490. We therefore affirm the

postconviction court’s summary denial of relief.

III. Cumulative Error

In light of our conclusion that Martin’s factual allegations,

taken as true, would not demonstrate error on the part of trial

- 40 - counsel, Martin’s cumulative error claim necessarily fails. Pham v.

State, 177 So. 3d 955, 962 (Fla. 2015).

CONCLUSION

Having considered all claims in this appeal, we affirm the trial

court’s denial of Martin’s guilt phase postconviction claims.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., concurs in result with an opinion.

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

LABARGA, J., concurring in result.

I concur in the result reached by the majority because the

actual bias standard articulated in Boyd 11 is controlling in this

case.

Given the common occurrence of jurors inadvertently—or in

some instances intentionally—failing to disclose important

information about themselves during the critical stage of voir dire, I

write to address the absence of a standard jury instruction in

11. Boyd v. State, 200 So. 3d 685 (Fla. 2015).

- 41 - criminal cases that explains to potential jurors the importance of

providing candid, honest answers during voir dire. I note that such

an instruction is provided in the Standard Jury Instructions in Civil

Cases.

I recommend that judges give a preliminary instruction

consistent with the following, borrowed from the civil standard jury

instructions:

Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know.

Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask

- 42 - for an explanation or clarification. In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us.

Fla. Std. Jur. Instr. (Civ.) 201.3.

This instruction emphasizes not only the importance of

answering voir dire questions “frankly, honestly, and completely,”

but also the potential consequences of failing to do so. Id.

Moreover, it reassures prospective jurors who may be concerned

about bringing sensitive matters to the court’s attention in such a

public space.

An Appeal from the Circuit Court in and for Clay County, John H. Skinner, Judge – 102008CF000658000AMX

Rick A. Sichta of The Sichta Firm, LLC, Jacksonville, Florida,

for Appellant

Ashley Moody, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida,

for Appellee

- 43 -