Dailey v. State

329 So.3d 1280

James Milton DAILEY, Appellant,

v.STATE of Florida, Appellee.

James Milton Dailey, Appellant,

v.State of Florida, Appellee.

Nos. SC20-934 & SC20-1529

Supreme Court of Florida.

September 23, 2021

Eric Pinkard, Capital Collateral Regional Counsel, Julissa Fontán and Natalia C. Reyna-Pimiento, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida; Laura Fernandez, New Haven, Connecticut; Cyd Oppenheimer, New Haven, Connecticut; Seth Miller of Innocence Project of Florida, Inc., Tallahassee, Florida; Scott A. Edelman and Stephen P. Morgan of Milbank, LLP, New York, New York; and Joshua Evan Dubin of Dubin Research & Consulting, Miami, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, Christina Z. Pacheco, Timothy A. Freeland, and Stephen D. Ake, Assistant Attorneys General, Tampa, Florida, for Appellee

PER CURIAM.

James Milton Dailey, a prisoner under sentence of death, appeals the circuit court's orders denying in part and dismissing in part his fourth successive motion for postconviction relief and dismissing his fifth successive motion for postconviction relief, which were filed under Florida Rule of Criminal Procedure 3.851, and dismissing his motion to perpetuate the testimony of Jack Pearcy. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm.

I. BACKGROUND

Dailey was convicted of and sentenced to death for the murder of Shelly Boggio. The facts of the crime have been described as follows:

Shelley Boggio's nude body was found floating in the water near Indian Rocks Beach in Pinellas County, Florida. She had been stabbed repeatedly, strangled, and drowned. On the day of the murder, Shelley, her twin sister Stacey, and Stephanie Forsythe had been hitchhiking along a road near St. Petersburg, Florida. They were picked up by Dailey, Jack Pearcy, and Dwayne "Oza" Shaw. The three men drove the girls to a local bar. Stacey and Stephanie returned home shortly thereafter, but Shelley remained with the group and returned to Jack Pearcy's house. Dailey was living in Pearcy's home, where he had his own bedroom. Pearcy and his girlfriend, Gayle Bailey, shared a second bedroom. Shaw, a friend of Pearcy's from Kansas, was temporarily staying at Pearcy's house while he resolved marital issues. He slept on a couch in the living room.

Shaw testified that on the night of the murder he drove with Pearcy and Boggio to a public telephone booth, where he was dropped off. Pearcy and Boggio then drove off alone. After speaking on the phone for several minutes, Shaw returned to the house on foot and fell asleep on the couch. Shaw testified that when he woke up later that night, he saw Pearcy and Dailey, but not Boggio, entering the house together. Shaw noticed that Dailey's pants were wet.

The State presented testimony from the lead detective in the case, John Halladay, and three informants who were inmates at the same facility where Dailey was held while awaiting trial.

Dailey v. State , 965 So. 2d 38, 41-42 (Fla. 2007). The three inmates testified that Dailey had admitted the killing to them individually and had devised a plan whereby he would later confess when Pearcy's case came up for appeal if Pearcy in turn would promise not to testify against him at his own trial. Dailey v. State , 594 So. 2d 254, 256 (Fla. 1991). Pearcy was tried first, convicted of first-degree murder, and sentenced to life imprisonment. Id. He refused to testify at Dailey's subsequent trial. Id. Dailey presented no evidence during the guilt phase. Id. He was found guilty of first-degree murder, and the jury unanimously recommended death. Id. At sentencing, Dailey requested the death penalty, and the court sentenced him to death. Id.

We upheld the conviction on direct appeal, but reversed the sentence, concluding that the trial judge had failed to give weight to mitigating circumstances, and that two aggravators were unsupported. Dailey , 594 So. 2d at 255, 258-59. On remand, the trial court once again sentenced Dailey to death, and we affirmed. Dailey v. State , 659 So. 2d 246, 247, 248 (Fla. 1995). Dailey's conviction and sentence became final in 1996, when the United States Supreme Court denied his petition for a writ of certiorari. Dailey v. Florida , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996).

Thereafter, we affirmed the denial of Dailey's initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Dailey , 965 So. 2d at 41. We also affirmed the denial of his first successive motion for postconviction relief, Dailey v. State , 247 So. 3d 390, 391 (Fla. 2018), the denial in part and dismissal in part of his second successive motion, Dailey v. State , 279 So. 3d 1208, 1212 (Fla. 2019), cert. denied , ––– U.S. ––––, 141 S. Ct. 689, 208 L.Ed.2d 292 (2020), and the denial in part and dismissal in part of his third successive motion, Dailey v. State , 283 So. 3d 782, 787 (Fla. 2019), cert. denied , ––– U.S. ––––, 141 S. Ct. 234, 208 L.Ed.2d 15 (2020). We also denied another petition for a writ of habeas corpus and a motion for a stay of execution. Id.

On December 27, 2019, Dailey filed his fourth successive postconviction motion, alleging that a 2019 declaration from Jack Pearcy is newly discovered evidence that proves that Pearcy alone murdered Boggio. Pearcy was deposed on February 25, 2020, in advance of the evidentiary hearing. At the end of the deposition, Pearcy indicated that he had answered every question, had nothing more to say, and did not want to be brought back to court to testify in Dailey's case. At the evidentiary hearing in March 2020, Pearcy again refused to testify, as he has at past postconviction evidentiary hearings involving similar claims. Neither the judge, the attorneys, nor Pearcy's mother and stepfather were able to persuade him to testify.

The trial court subsequently entered an order denying in part and dismissing in part Dailey's fourth successive motion. With regard to the Pearcy claim, the court found that Dailey did not present any admissible evidence to support his claim that Pearcy confessed to committing the murder himself even if the court were to have considered Pearcy's deposition. The court dismissed as procedurally barred Dailey's claims that former trial prosecutor Robert Heyman had knowledge of Paul Skalnik's prior child sexual assault charge but allowed Skalnik's false testimony to stand uncorrected, and that newly discovered evidence established that Heyman committed fraud upon the court.

After filing his notice of appeal of the denial of his fourth successive motion, Dailey filed a fifth successive postconviction motion. We temporarily relinquished jurisdiction for resolution of the fifth successive motion by the trial court. Dailey also filed in the trial court a motion to take a deposition to perpetuate Pearcy's testimony. After hearing argument from the parties, the trial court entered an order dismissing Dailey's fifth successive motion and the motion to perpetuate Pearcy's testimony. The trial court found Dailey's fifth successive motion untimely and noted that Dailey still had not obtained Pearcy's testimony in an admissible form. The trial court dismissed the motion to perpetuate as moot in light of the dismissal of the fifth successive motion. Dailey now appeals the denial/dismissals of his fourth and fifth successive motions and the dismissal of his motion to perpetuate.

II. ANALYSIS

A. Heyman's "Admission"

Dailey first argues that the trial court erred in summarily denying his Giglio¹ claim regarding former Assistant State Attorney Heyman's notes from Dailey's 1987 trial, which he alleges prove that the State knowingly elicited false testimony from Paul Skalnik and failed to correct it, specifically, Skalnik's testimony "that his prior criminal charges were ‘grand theft, counselor, not murder, not rape, no physical violence in my life.’ " Dailey claims that the notes tracked the testimony of Detective Halliday, who testified after Skalnik at the trial, and had the words "sex assault(s)" crossed-out in regard to Skalnik's criminal history. Because Skalnik was arrested in 1982 on a charge of lewd and lascivious assault on a child under fourteen, for which a "no information" was subsequently filed by the same State Attorney's office that prosecuted Dailey's case, Dailey asserts that the notes and Heyman's "admission" to a reporter in 2020 that the notes were his and that they were made during Dailey's trial in 1987 prove that the State knew Skalnik testified falsely about his prior charge and allowed that false testimony to stand uncorrected, in violation of Giglio .²

Florida Rule of Criminal Procedure 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing "[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief." Because a postconviction court's decision regarding whether to grant a rule 3.851 evidentiary hearing depends on the written materials before the court, its ruling essentially constitutes a pure question of law and is subject to de novo review. Grossman v. State , 29 So. 3d 1034, 1042 (Fla. 2010). In reviewing a trial court's summary denial of a motion for postconviction relief, this Court accepts the allegations in the motion as true to the extent that they are not conclusively rebutted by the record. Hodges v. State , 885 So. 2d 338, 355 (Fla. 2004).

The trial court did not err in dismissing this claim as untimely and procedurally barred. This claim is merely a repackaging of the claim in Dailey's 2017 successive motion that Giglio was violated based on Skalnik's false testimony about his criminal history at Dailey's trial. In 2017, Dailey alleged "that the State failed to correct Paul Skalnik's false trial testimony about his criminal history. At trial, Skalnik testified that the charges against him were ‘grand theft ... not murder, not rape, no...