Mungin v. State

79 So. 3d 726, 36 Fla. L. Weekly Supp. 610, 2011 Fla. LEXIS 2563, 2011 WL 5082454
CourtSupreme Court of Florida
DecidedOctober 27, 2011
DocketNo. SC09-2018
StatusPublished
Cited by29 cases

This text of 79 So. 3d 726 (Mungin v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mungin v. State, 79 So. 3d 726, 36 Fla. L. Weekly Supp. 610, 2011 Fla. LEXIS 2563, 2011 WL 5082454 (Fla. 2011).

Opinions

PER CURIAM.

Anthony Mungin was convicted of the 1990 murder of a convenience store clerk, Betty Jean Woods, and sentenced to death. See Mungin v. State (Mungin I), 689 So.2d 1026 (Fla.1995). Mungin appeals the postconviction court’s order summarily denying his successive motion for postcon-viction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851, which [729]*729challenged his conviction on the basis that a newly discovered witness significantly impeaches the testimony of Ronald Kirkland, the only witness who identified Mun-gin as leaving the crime scene immediately after the murder.1 The new witness, George Brown, asserts he was the first person on the scene after the murder and that no other person was present in the store. He states that he told this to police the night of the murder and that the police report is false. In the current proceeding, Mungin alleges that he was denied adequate adversarial testing because the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).2 For the reasons discussed below, we reverse and remand the Giglio and Brady claims to the postconviction court for an evidentiary hearing, but deny the newly discovered evidence claim.

The pertinent facts of this case are set forth in this Court’s opinion on direct appeal as follows:

Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer [Kirkland] entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and Mungin’s Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin’s house.
Jurors also heard Williams[3] rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mun-gin’s identity.
First, William Rudd testified that Mungin came to the convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.
Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai’s hand and hit her in the head had been fired from the gun recovered in Kingsland.

Mungin I, 689 So.2d at 1028 (footnote omitted).

[730]*730In his first motion for postconviction relief, Mungin raised several claims regarding Kirkland, specifically that trial counsel was ineffective for failing to cross-examine Kirkland regarding Kirkland’s criminal cases; trial counsel was ineffective for failing to effectively examine Kirkland regarding his identification of Mungin and for failing to elicit testimony from Detective Christie Conn that would have destroyed Kirkland’s credibility; and newly discovered evidence cast further doubt on Kirkland’s veracity. On appeal from the denial of postconviction relief, Mungin raised as an issue that the circuit court erred in denying his claims of ineffective assistance of trial counsel during the guilt phase after an evidentiary hearing, including his claim that counsel was ineffective in failing to adequately impeach Kirkland’s testimony. Mungin v. State (Mungin II), 932 So.2d 986, 998 (Fla.2006). This Court affirmed the denial of postconviction relief and denied Mungin’s petition for a writ of habeas corpus. Id. at 1004. In denying relief, this Court engaged in a significant discussion of the claims involving whether counsel was ineffective in failing to properly impeach Kirkland based on the failure to discover and use Kirkland’s probationary status as impeachment and the failure to call Detective Conn regarding statements that Kirkland made that called Kirkland’s identification of Mungin into question. See id. at 998-99. This Court denied relief, holding that even if counsel was deficient, Mungin did not establish prejudice because counsel had attacked Kirkland’s identification of Mungin on cross-examination of Kirkland and during his cross-examination of other witnesses who asserted that, days before the crime, Mungin had short hair. During closing, counsel stressed these inconsistencies. Id. at 999.

In the current proceeding, Mungin filed a successive motion for postconviction relief, asserting that the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady and Giglio. In support of this claim, Mun-gin presented the following affidavit, which potentially calls Kirkland’s testimony into question:

AFFIDAVIT OF GEORGE BROWN

1. My name is George Brown.... I hereby state the following and will attest to same in any official proceeding.
2. On Sunday, September 16, 1990, at approximately 1355 hours, at the Little Champ Store on the corner of Chaffee Road and Crystal Springs Road, I was an eyewitness to the following events. I remember these event [sic] because I go past this location everyday since that date sixteen years ago.
3. I went into the store that day because it was hot outside. The lady was usually at the counter and was always there — she always made you feel that you were going to steal something — and she was always there. I went into the store and got a drink and went to the counter and she was not there. So, I waited there for a few minutes and then I thought something was wrong. I went to the bathroom and yelled for her and nothing happened. I went back up front and still she didn’t come. At the end of the counter there was a door open, so I hollered in there and nothing happened and she didn’t come. So, I looked down and there she was. I called 911.
4. There was no one in the store during this whole time. I was in there all alone. There was no one in the parking lot. There was no one at the gas pumps. There was no one out there. There was someone who came out of the store, brushed up against me when I was coming in but I could not tell who it was, whether the person was a male or [731]*731female, white or black. I could never give a description of the person who was coming out of the store.
5. After I called 911, someone (a male) came into the store and asked what was happening.

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Cite This Page — Counsel Stack

Bluebook (online)
79 So. 3d 726, 36 Fla. L. Weekly Supp. 610, 2011 Fla. LEXIS 2563, 2011 WL 5082454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mungin-v-state-fla-2011.