James Milton Dailey v. State of Florida

Supreme Court of Florida
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No. SC18-557
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JAMES MILTON DAILEY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

October 3, 2019

PER CURIAM.

James Milton Dailey, a prisoner under sentence of death, appeals the circuit

court’s order denying his second successive motion for postconviction relief,

which was filed under Florida Rule of Criminal Procedure 3.851. 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 Shelley

Boggio. We have described the facts of the crime 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. One of the
inmates, Paul Skalnik, testified that Dailey had struck a deal with
Pearcy, who had also been charged with Boggio’s murder. Skalnik
testified that he relayed messages between Dailey and Pearcy.
According to Skalnik, Dailey promised that if Pearcy did not testify at
Dailey’s trial, Dailey would attempt to exonerate Pearcy once he was
acquitted.
Based on the testimony of Shaw, Skalnik, and several other
witnesses, Dailey was found guilty of first-degree murder and was
sentenced to death.

Dailey v. State, 965 So. 2d 38, 41-42 (Fla. 2007) (footnote omitted). On direct

appeal, we upheld the conviction but reversed the sentence. Dailey v. State, 594

So. 2d 254, 259 (Fla. 1991). The trial court again sentenced Dailey to death on

remand. Dailey v. State, 659 So. 2d 246, 247 (Fla. 1995). We affirmed, id. at 248,

and the Supreme Court denied Dailey’s petition for a writ of certiorari, Dailey v.

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Florida, 516 U.S. 1095 (1996). Thereafter, we affirmed the denial of Dailey’s

initial postconviction motion 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

postconviction motion. Dailey v. State, 247 So. 3d 390, 391 (Fla. 2018).

On June 21, 2017, Dailey filed a second successive postconviction motion,

raising three claims. He asserted that: (1) newly discovered evidence requires that

his conviction be overturned; (2) the State committed Brady 1 and Giglio 2

violations; and (3) his death sentence is unconstitutional because he is innocent.

Following a case management conference, the circuit court granted an evidentiary

hearing on two newly discovered evidence claims. Dailey subsequently requested

that the court take judicial notice of certain documents; his request was denied.

After the evidentiary hearing, the circuit court issued a final order rejecting

all claims. Dailey now appeals the circuit court’s order and its denial of his request

for judicial notice.

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

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

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II. ANALYSIS

A. Newly Discovered Evidence

In his first claim, Dailey argues that newly discovered evidence exists in the

form of: (1) an affidavit from Jack Pearcy, his codefendant; (2) testimony from

Mike Sorrentino, James Wright, and Travis Smith, former inmates who were

housed at the same jail as Dailey; (3) documents indicating that Paul Skalnik, an

inmate who testified on behalf of the State at trial, is not a credible witness; and (4)

an Indian Rocks Beach Police report.

In order to set aside a conviction based on newly discovered evidence, two

requirements must be satisfied. First, 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.”

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (alteration in original) (quoting

Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994)). Second, the

“evidence must be of such nature that it would probably produce an acquittal on

retrial.” Id. However, regardless of whether the “evidence meets the threshold

requirement by qualifying as newly discovered, no relief is warranted” unless the

evidence would be admissible at trial. Sims v. State, 754 So. 2d 657, 660 (Fla.

2000).

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1. Jack Pearcy’s affidavit

Dailey first appeals the circuit court’s denial of his claim that a newly

discovered affidavit from Jack Pearcy proves that Pearcy, who also was convicted

of murdering Boggio, is solely responsible for the murder. When the lower court

has ruled on a newly discovered evidence claim following an evidentiary hearing,

we review its “findings on questions of fact, the credibility of witnesses, and the

weight of the evidence for competent, substantial evidence.” Green v. State, 975

So. 2d 1090, 1100 (Fla. 2008). The lower court’s application of the law to the

facts, however, is reviewed de novo. Id.

In the affidavit, Pearcy states: “James Dailey was not present when Shelly

Boggio was killed. I alone am responsible for Shelly Boggio’s death.” But Pearcy

refused to testify about any substantive assertion in the affidavit at the evidentiary

hearing. After admitting that he signed the affidavit, he testified that its contents

were not true. When asked to identify the untruthful statements, he responded,

“I’m not sure. There’s quite a few lines on there.” Pearcy eventually stated that

paragraphs one and two—which listed his name and status as an inmate, and

recognized that he had been convicted of Boggio’s murder and sentenced to life

imprisonment—were true. When questioned about the truthfulness of each

remaining paragraph, Pearcy invoked the Fifth Amendment. He continued to do so

after the court compelled him to answer.

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Following the hearing, the circuit court held that the affidavit was

inadmissible hearsay. Dailey alleges that the court erred in so ruling because the

affidavit is admissible as a statement against interest and a third-party admission of

guilt under Chambers v. Mississippi, 410 U.S. 284 (1973). Because neither

exception to the hearsay rule applies, we affirm the lower court’s ruling.

Dailey first argues that the affidavit is admissible as a declaration against

interest under section 90.804(2)(c), Florida Statutes (2017). But the circuit court

was justified in concluding that under the circumstances here, Pearcy’s assertion

that he alone killed Boggio was not a statement which “a person in the declarant’s

position would not have made . . . unless he or she believed it to be true.”

§ 90.804(2)(c), Fla. Stat. (2017). Pearcy had already been convicted of the crime

to which he confessed. He did not expose himself to any additional criminal

liability for Boggio’s murder by accepting sole responsibility for her death. See

Marek v. State, 14 So. 3d 985, 995 (Fla. 2009). Further, given that Pearcy claimed

the affidavit was false and refused to testify about any of its substantive assertions,

we agree with the circuit court’s determination “that Pearcy’s affidavit is hearsay

of an exceptionally unreliable nature and does not qualify as a statement against

interest.”

Nor does the affidavit qualify as a third-party admission of guilt under

Chambers. In Bearden v. State, 161 So. 3d 1257, 1265 (Fla. 2015), we identified

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four factors relevant to determining whether a third party’s hearsay confession may

be admitted as substantive evidence:

(1) the confession or statement was made spontaneously to a close
acquaintance shortly after the crime occurred; (2) the confession or
statement is corroborated by some other evidence in the case; (3) the
confession or statement was self-incriminatory and unquestionably
against interest; and (4) if there is any question about the truthfulness
of the out-of[-]court confession or statement, the declarant must be
available for cross-examination.

Dailey contends that the second factor has been met because the statements

in Pearcy’s affidavit are corroborated by Juan Banda—who testified that Pearcy

said Dailey was innocent of the crime for which he had been sentenced to death—

and Travis Smith—who testified that Pearcy claimed the murder charge “was his

charge and his charge alone.” But regardless of any corroborating evidence, we

conclude that all other factors weigh heavily in favor of excluding the affidavit.

The first factor is not satisfied; the affidavit was executed more than thirty years

after the murder, not shortly after the crime occurred. The affidavit similarly fails

to meet the third factor. Pearcy’s statement in the affidavit that he alone killed

Boggio is not unquestionably against his interest. Pearcy had already been tried,

convicted, and sentenced for Boggio’s murder at the time the affidavit was

executed. Finally, questions about the truthfulness of the affidavit arose when

Pearcy testified that its contents were false. But Pearcy’s persistent invocation of

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the Fifth Amendment caused him to be unavailable for cross-examination. We

therefore affirm the circuit court’s denial of relief.

2. Testimony from Mike Sorrentino, James Wright, and Travis Smith

Dailey next argues that the circuit court erred in rejecting his claim that

newly discovered evidence exists in the form of testimony from Mike Sorrentino,

James Wright, and Travis Smith. All three are former inmates who were once

incarcerated with Dailey. At the evidentiary hearing, each testified that detectives

came to the county jail, called him into an interview room where newspaper

articles about Boggio’s murder were in plain view, and asked him if he had any

information about the crime. Dailey contends that this testimony proves that

detectives were attempting to suggest facts to potential witnesses.

Smith additionally stated that he knew Pablo DeJesus and James Leitner,

two inmates who testified against Dailey at trial. Smith said that he never saw

Dailey discuss his case with either of them. Smith claimed to have heard DeJesus

and Leitner planning to tell prosecutors false information about Dailey in order to

receive reduced sentences. Dailey contends that this testimony would have cast

doubt on DeJesus’s and Leitner’s credibility.

The circuit court held that the instant claim was “untimely or otherwise

procedurally barred.” We agree. In his 1999 motion for postconviction relief,

Dailey alleged that his trial counsel was ineffective for failing to utilize the

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testimony of Wright, Sorrentino, and Smith. He claimed that Wright and

Sorrentino could have testified that they were approached by detectives prior to his

trial and were shown newspaper articles regarding the murder. Dailey further

explained that Smith could have provided testimony that he overheard DeJesus and

Leitner discussing their plan to falsely testify against Dailey. In 2004, Dailey

chose to waive the claim “for strategic purposes,” and the claim was later

dismissed by the trial court.

This history demonstrates that the information Dailey now contends is newly

discovered was known to him in 1999. “To be considered timely filed as newly

discovered evidence,” a successive rule 3.851 motion must be “filed within one

year of the date upon which the claim became discoverable.” Jimenez v. State, 997

So. 2d 1056, 1064 (Fla. 2008). Because the motion was filed eighteen years after

the claim was discovered, the claim is clearly procedurally barred.

In response, Dailey argues that his prior postconviction counsel was

ineffective for waiving the earlier claim. He contends he is entitled to relief under

Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013).

But his reliance on those decisions is misplaced. We have previously recognized

that Martinez and Trevino only apply “to federal habeas proceedings” and

therefore “do[] not provide an independent basis for relief in state court.” Banks v.

State, 150 So. 3d 797, 800 (Fla. 2014) (quoting Howell v. State, 109 So. 3d 763,

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774 (Fla. 2013)). “Moreover, we have ‘repeatedly held that claims of ineffective

assistance of postconviction counsel are not cognizable.’ ” Id. (quoting Howell,

109 So. 3d at 774). Accordingly, we affirm the circuit court’s denial of relief.

3. Evidence discrediting Paul Skalnik’s testimony

Dailey next argues that the circuit court erred in summarily dismissing his

claim that newly discovered evidence discredits the testimony of Paul Skalnik, an

inmate who testified against Dailey at trial. We review a circuit court’s summary

rejection of a postconviction claim de novo, “accepting the movant’s factual

allegations as true to the extent they are not refuted by the record, and affirming

the ruling if the record conclusively shows that the movant is entitled to no relief.”

Pardo v. State, 108 So. 3d 558, 561 (Fla. 2012) (quoting Gore v. State, 91 So. 3d

769, 774 (Fla. 2012)).

In support of his claim, Dailey relies on documents allegedly demonstrating

that: Skalnik had made false allegations against correctional officers; Skalnik had

been described by a probation officer as manipulative; Skalnik’s trial testimony

about his criminal history was incomplete; and that the State was considering

offering him a reduced sentenced in exchange for testifying against Dailey, even

though Skalnik claimed at trial that he had not made a deal with the State. Finally,

Dailey claimed that Skalnik’s former attorney would testify that Skalnik had

received preferential treatment from the State.

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The circuit court found that the claim was untimely. We agree. As

recognized by the circuit court, all evidence presented by Dailey “could have been

discovered earlier through due diligence.” The date on each document supporting

this claim reflected that it was created in the 1980s. And information about any

arrangement Skalnik had with the State “would have also been discoverable

through due diligence around 1987,” when Dailey was tried and sentenced.

Dailey neglects to explain why this information could not have been

discovered earlier. Instead, he argues that his postconviction counsel was

ineffective for failing to previously discover it and contends that any untimeliness

should be excused under Martinez and Trevino. Because this argument is

meritless, we affirm the circuit court’s summary dismissal of the instant claim.

4. Indian Rocks Beach Police report

Dailey next argues that the circuit court erred in summarily dismissing his

claim that a newly discovered Indian Rocks Beach Police (IRBP) report proves he

was not with Pearcy when Boggio was killed. The report contains statements

made by Oza Shaw, who testified against Dailey at trial, during an interview with

IRBP detectives in May of 1985. According to the account in the report, Shaw told

the detectives that he, Dailey, Pearcy, and Boggio all went to Pearcy’s house on the

night of the murder. Pearcy and Boggio then gave Shaw a ride to a nearby

telephone booth. After making a phone call, Shaw walked back to the house. He

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later observed Pearcy return home to pick up Dailey, but did not see Boggio with

Pearcy. Pearcy and Dailey then left the house together, and Shaw fell asleep. He

was awakened when the two returned later that night. As they entered the house,

Shaw noticed that Dailey’s pants were wet.

The version of events described in the IRBP police report differed from

Shaw’s original trial testimony, in which Shaw did not mention seeing Pearcy

return home alone to pick up Dailey. Rather, in the trial testimony, Shaw only

recalled seeing Pearcy and Dailey return home together at the end of the night.

Dailey appears to argue that Shaw’s statements in the IRBP report suggest that

Pearcy killed Boggio alone.

The circuit court denied the claim as untimely, concluding that the IRBP

report had been “raised in the context of a Brady claim, which [Dailey] abandoned

at the evidentiary hearing on [his] initial postconviction motion.” Dailey asserts

that, contrary to the lower court’s holding, the Brady claim in his earlier

postconviction motion is distinguishable from the claim at hand because they relate

to different documents associated with different law enforcement officers.

Regardless of whether the Brady claims are distinct, we conclude that the

circuit court properly denied relief. First, the claim is untimely because Dailey has

failed to explain why information in a report from 1985 could not have been

previously discovered by use of reasonable diligence. He only argues that prior

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postconviction counsel was ineffective for failing to discover it and asserts

entitlement to relief under Martinez and Trevino. This argument is unavailing.

We note that in any event, the statements in the IRBP report fail to satisfy

the second prong of Jones. In the version of events described in the IRBP report,

Shaw still recalled seeing Pearcy and Dailey return to the house together without

Boggio late that night. He also remembered that Dailey’s pants were wet; Boggio

was found in the water. Dailey, 965 So. 2d at 41. Therefore, the statements in the

IRBP report would not probably produce an acquittal upon retrial. The instant

claim is accordingly meritless.

5. Cumulative analysis

Dailey next argues that the circuit court erred in failing to conduct a

cumulative analysis. Generally, in determining whether newly discovered

evidence would likely produce an acquittal upon retrial, a court must evaluate “the

effect of the newly discovered evidence, in addition to all of the admissible

evidence that could be introduced at a new trial.” Hildwin v. State, 141 So. 3d

1178, 1184 (Fla. 2014). But given that all of Dailey’s newly discovered evidence

claims were either correctly rejected as untimely or based on inadmissible

evidence, no such analysis was necessary. Thus, Dailey is not entitled to relief on

this claim.

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B. Giglio Violations

Dailey next argues that the lower court erred in summarily dismissing his

claim that the State committed two Giglio violations. 3 First, Dailey contends 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 physical violence in my life.” Dailey asserts that

this testimony is a significant understatement of Skalnik’s criminal history because

it omits that Skalnik had previously been charged with lewd and lascivious conduct

on a child under fourteen years of age.

The second alleged Giglio violation stems from the State’s impeachment of

Oza Shaw at the evidentiary hearing on Dailey’s initial postconviction motion.

There, Shaw testified that on the night of the murder, he saw Pearcy come home

alone, without Boggio, and walk into Dailey’s bedroom. He claimed that the pair

then left the house and returned together later that night. On cross-examination,

the State impeached Shaw with his trial testimony, which made no mention of

Pearcy returning home without Boggio to pick up Dailey. Dailey contends that the

State’s line of questioning was improper because it suggested that Shaw’s

3. Though Brady is listed in the heading of the claim and is cited once in the
body of the brief, Dailey does not raise any arguments under Brady.

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testimony at the hearing was a recent fabrication, even though Shaw provided an

identical version of events in the May 1985 interview with IRBP detectives.

The circuit court rejected both Giglio claims. We affirm because each claim

fails on the merits. To establish a Giglio violation, Dailey must show that: “(1) the

testimony given was false; (2) the prosecutor knew the testimony was false; and (3)

the statement was material.” Moore v. State, 132 So. 3d 718, 724 (Fla. 2013). The

statement is “material ‘if there is any reasonable possibility that it could have

affected the’ ” judgment of the factfinder. Id. (quoting Tompkins v. State, 994 So.

2d 1072, 1091 (Fla. 2008)).

Even assuming he could establish the first two prongs of Giglio, Dailey’s

first claim fails because Skalnik’s testimony about his criminal history was not

material. Dailey suggests that the jury would be less likely to believe Skalnik’s

testimony about Dailey if it knew of the lewd and lascivious conduct charge. But

Skalnik’s credibility was already compromised because the jury was aware that he

had committed multiple crimes. And Skalnik was not the only witness against

Dailey; two other inmates also testified that Dailey confessed to the murder.

Dailey, 594 So. 2d at 256. Accordingly, there is no reasonable possibility that

information regarding Skalnik’s lewd and lascivious assault charge would have

affected the jury’s verdict.

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Initially, we note that while Dailey’s next claim is based on postconviction

testimony, Dailey has not cited to any case holding that Giglio applies to

postconviction proceedings. Cf. Dist. Attorney’s Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52, 68-69 (2009) (rejecting Brady’s applicability at the

postconviction stage). In any event, this claim fails under the first prong of Giglio.

Though Dailey suggests that the State’s questioning of Shaw was somehow

misleading, he has not asserted that any part of Shaw’s testimony at the evidentiary

hearing was false. Accordingly, the claim is meritless.

C. Judicial Notice

Dailey next argues that the lower court erred in declining to take judicial

notice under section 90.202, Florida Statutes (2017), of certain records, including

court files of Pearcy, court files of the three inmates who testified against Dailey at

trial, and deposition testimony from the prosecutor who tried Dailey’s case. In the

2003 deposition, the prosecutor testified that she would not use Skalnik as a

witness again, because she feared he would testify dishonestly.

Judicial notice is reviewed for an abuse of discretion. See Morton v. State,

995 So. 2d 233, 244 (Fla. 2008). We conclude that the circuit court did not abuse

its discretion in declining Dailey’s request because the documents were not

relevant to either of the claims that were granted an evidentiary hearing. Dailey is

therefore not entitled to relief on this claim.

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D. Actual Innocence

Dailey last contends that the circuit court erred in summarily rejecting his

claim that he is actually innocent. His argument lacks merit because freestanding

claims of actual innocence are not cognizable under Florida law. Tompkins, 994

So. 2d at 1089. Accordingly, we affirm the circuit court’s denial of relief.

III. CONCLUSION

For the reasons above, we affirm the circuit court’s order denying in part and

dismissing in part Dailey’s successive motion for postconviction relief.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and
MUÑIZ, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
BY 4:00 P.M. ON TUESDAY, OCTOBER 8, 2019. A RESPONSE TO THE
MOTION FOR REHEARING/CLARIFICATION MAY BE FILED BY 4:00 P.M.
ON FRIDAY, OCTOBER 11, 2019. NOT FINAL UNTIL THIS TIME PERIOD
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.

An Appeal from the Circuit Court in and for Pinellas County,
Frank Quesada, Judge - Case No. 521985CF007084XXXXNO

Eric Pinkard, Capital Collateral Regional Counsel, and Chelsea Rae Shirley,
Julissa R. Fontán, and Kara Ottervanger, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida; Seth Miller, Innocence Project
of Florida, Inc., Tallahassee, Florida; Laura Fernandez, New Haven, Connecticut;
and Cyd Oppenheimer, New Haven, Connecticut,

for Appellant

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Ashley Moody, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco,
Assistant Attorney General, Tampa, Florida,

for Appellee

Elliot H. Scherker of Greenberg Traurig, P.A., Miami, Florida, and Karen M.
Gottlieb, Florida Center for Capital Representation, Florida International
University College of Law, Miami, Florida,

for Amicus Curiae Right Reverend Neil Lebhar, Bishop of the Gulf Atlantic
Diocese of the Anglican Church in North America

Craig Trocino, Director, Miami Law Innocence Clinic, University of Miami
School of Law, Coral Gables, Florida, and Michael Ufferman of Michael Ufferman
Law Firm, P.A., Tallahassee, Florida,

for Amicus Curiae the Innocence Network

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