Supreme Court of Florida

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No. SC03-760

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Appellant,

vs.

Appellee.

[April 12, 2007]

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to

vacate a judgment of conviction of first-degree murder and a sentence of death

under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s

denial of Riechmann’s postconviction motion.

The facts in this case are set forth in Riechmann’s direct appeal in

Riechmann v. State, 581 So. 2d 133 (Fla. 1991) (Riechmann I), and in the

subsequent appeal on his first rule 3.850 postconviction motion in State v.

Riechmann, 777 So. 2d 342 (Fla. 2000) (Riechmann II):

Briefly stated, the evidence established that Riechmann and Kersten

Kischnick, "life companions," came to Miami, Florida from Germany

in early October 1987, and Kischnick was shot to death as she sat in

the passenger seat of an automobile driven by Riechmann. Riechmann

was charged with her murder. At trial, the State’s theory was that

Kischnick was a prostitute who worked for Riechmann, and when she

no longer wanted to work as a prostitute, Riechmann killed her in

order to recover insurance proceeds.

Riechmann maintained that they were riding around

videotaping some of Miami’s sights when they got lost and asked for

directions. He contended that the stranger whom they asked fired the

shot that killed Kischnick. Riechmann sped away looking for help,

driving several miles before he found a police officer.

At trial, an expert for the State testified that numerous particles

usually found in gunpowder residue were discovered on Riechmann’s

hand and, accordingly, there was a reasonable scientific probability

that Riechmann had fired a gun. In Riechmann’s hotel room, the

police found three handguns and several rounds of ammunition, and

an expert firearms examiner testified that the bullets were the same

type as used to kill Kischnick. The examiner testified that the bullet

that killed Kischnick could have been fired from any of the three

makes of guns found in Riechmann’s room. A serologist testified that

the high-velocity blood spatter found on the driver’s seat could not

have gotten there if the driver’s seat was occupied in a normal driving

position when the shot was fired from outside the passenger-side

window. Riechmann was convicted of first-degree murder.

Riechmann II, 777 So. 2d at 347. At the penalty phase, Riechmann’s attorney

presented no mitigating evidence, and subsequently, the jury recommended the

death penalty by a vote of nine to three. Id. The trial judge sentenced Riechmann

to death, finding two aggravating factors: (1) the murder was committed for

pecuniary gain, and (2) the murder was committed in a cold, calculated, and

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premeditated manner. Id. at 347 n.1. Although Riechmann presented no

mitigation, the trial judge "found as a nonstatutory mitigating circumstance that

people in Germany who know Riechmann told police they consider him to be a

‘good person.’ " Riechmann I, 581 So. 2d at 137. On appeal, this Court affirmed

Riechmann’s conviction and sentence, id. at 141, and the United States Supreme

Court denied Riechmann’s petition for writ of certiorari. Riechmann v. Florida,

1. Riechmann argued seven claims on direct appeal: (1) the trial court

should have excluded statements taken from Riechmann because the State failed to

carry its burden of showing that Riechmann knowingly, intelligently, and

voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and

gave such statements; (2) the State was guilty of prosecutorial misconduct and

thereby violated Riechmann’s rights to a fair trial and due process under the United

States and Florida Constitutions; (3) the trial court erred in failing to require the

State to make available its discovery on a timely basis; (4) the trial court erred in

failing to exclude evidence seized from Riechmann in violation of the United

States and Florida Constitutions; (5) the trial court erred in admitting Riechmann’s

more-than-ten-year-old prior German criminal convictions and in refusing to

instruct the jury that it could only consider them with reference to the matter of the

credibility of Riechmann; (6) under the totality of the circumstances involved in

the case, the judgment and sentence should be reversed in the interest of justice;

and (7) the evidence was legally insufficient to support the guilty verdicts,

judgment, and the imposition of the death penalty. See Riechmann I, 581 So. 2d at

137- 41. With the exception of our conclusion that the trial court abused its

discretion in admitting Riechmann’s conviction for involuntary manslaughter and

negligent bodily harm, but committed harmless error in doing so, this Court found

no error and affirmed the death sentence. Id. at 140-41.

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On September 30, 1994, Riechmann filed his initial rule 3.850 motion for

Riechmann’s sentence and ordered a new sentencing proceeding, concluding that

Riechmann received ineffective assistance of counsel at the penalty phase and that

the sentencing order had been improperly written by the prosecutor instead of the

judge. Id. at 348. The judge denied the remainder of the claims. Id. This Court

affirmed the trial court’s order in its entirety, and remanded for a new sentencing

2. This motion, as amended, contained fourteen claims, including eleven

claims that trial counsel was ineffective for: (1) failing to conduct any independent

investigation and failing to present abundant available evidence of Riechmann’s

innocence; (2) failing to use available experts to rebut and disprove crucial

prosecution testimony erroneously and unprofessionally asserting that bloodstain

and gunshot residue evidence obtained from the car proved Riechmann guilty; (3)

his sudden, unilateral and patently unreasonable decision that Riechmann was to

testify at trial; (4) failing to suppress illegally obtained evidence; (5) unreasonably

deciding to prevent the jury from knowing about Riechmann’s acquittal of a

federal gun charge before his arrest on the instant murder charge; (6) failing to

object to countless instances of flagrant prosecutorial misconduct; (7) refusing to

comply with Riechmann’s expressed desire to seat African-American jurors,

failing to conduct appropriate death qualification inquiry, and seating manifestly

biased jurors; (8) making unreasonable errors and omissions on cross-examination

of the State’s witnesses; (9) making an ineffective closing argument at the guilt

phase of trial; (10) failing to bring Riechmann to speedy trial; (11) failing to

investigate and present mitigating evidence, omission of which resulted directly in

the jury’s recommendation and the Court’s imposition of the death sentence; and

(12) failing to request additional counsel to assist in the trial. The remaining

claims alleged: (1) newly discovered evidence entitling Riechmann to a new trial;

(2) a Brady v. Maryland, 373 U.S. 83 (1963), claim based on the State’s

withholding of material exculpatory evidence; and (3) a claim that the sentence

was invalid because the trial court’s findings were not written by the judge but by

the prosecutor and provided to the judge ex parte.

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While the appeal on the first rule 3.850 motion was pending, Riechmann

filed a second postconviction motion in the circuit court. This successive 3.850

3. Riechmann moved twice for this Court to relinquish jurisdiction during

this appeal, and this Court denied both motions. The first request involved

Riechmann’s claim that the State pressured crime scene officer Hilliard Veski, who

did not testify at trial, to give a false statement about the location of a blanket and

flashlight in the car in which the victim was murdered. Riechmann’s second

motion to relinquish jurisdiction asserted newly discovered evidence consisting of

an alleged confession from an individual named Mark Dugen to journalist Peter

Mueller that Dugen, not Riechmann, had committed the murder.

4. In his petition for writ of habeas corpus, Riechmann raised five claims:

(1) ineffective assistance of appellate counsel; (2) the trial court’s abuse of

discretion regarding the propriety of its rulings at trial; (3) the State’s suppression

of favorable evidence under Brady; (4) this Court’s denial of Riechmann’s equal

protection rights by failure to review the entire record and by denying his request

to file an oversize brief; and (5) ineffective assistance of postconviction counsel.

Riechmann II, 777 So. 2d at 364.

5. After this Court issued its opinion in the first rule 3.850 appeal, the trial

court determined that the second postconviction motion should be resolved before

the resentencing would be conducted. After conducting an evidentiary hearing on

the second postconviction motion, the trial court entered an order denying relief

and scheduled the resentencing for June 16, 2003. The trial court denied a motion

for rehearing on the order and denied a motion to stay the resentencing

proceedings. Riechmann filed a notice in this Court appealing the trial court’s

order denying relief, and on April 29, 2003, he filed an emergency motion to stay

proceedings in the circuit court in order to hear his appeal of the denial of rule

3.850 relief. This Court denied the State’s motion to dismiss or permit the lower

court to exercise concurrent jurisdiction, but granted Riechmann’s emergency

motion to stay proceedings in the circuit court pending disposition of this appeal.

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(paraphrased): (1) newly discovered evidence involving an alleged confession

from Mark Dugen; (2) the State deliberately withheld material exculpatory

evidence and knowingly used false evidence regarding State witness Walter

Smykowski; (3) the conduct of law enforcement officers in this case was so

outrageous that it deprived Riechmann of due process; (4) Riechmann is entitled to

DNA testing of the presumptive blood evidence; (5) Riechmann was denied his

rights to due process and equal protection because access to the files and records

pertaining to Riechmann’s case had been withheld by certain state agencies; and

(6) the cumulative effect of newly discovered evidence warrants a new trial.

evidentiary hearing on the claims concerning the alleged confession of Mark

Dugen and the State’s conduct involving Walter Smykowski. After numerous

delays, the evidentiary hearing was held; subsequently, counsel for each side

6. Huff v. State, 622 So. 2d 982 (Fla. 1993). There is no transcript available

in the record provided to this Court concerning the Huff hearing or the trial court’s

ruling on this matter.

7. In his memorandum, Riechmann attempted to amend his rule 3.850

motion yet again, asserting three additional claims that purportedly conformed with

the evidence presented at the evidentiary hearing: (1) the State violated due

process by not disclosing evidence regarding Smykowski’s state-arranged visit

with his daughter that was favorable to Riechmann because it provided

impeachment of Smykowski’s trial testimony; (2) the State knowingly allowed

misleading or false testimony to be presented without correction when Smykowski

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that Riechmann did not exercise due diligence in pursuing his successive motion

and amended claims on the merits, and the motion was therefore time-barred;

further, the court held that even if the motion were not time-barred, Riechmann’s

claims were without merit and he was not entitled to relief. Riechmann now

Riechmann’s first claim is that the lower court erred in refusing to allow

Officer Hilliard Veski’s proffered testimony at the evidentiary hearing below. This

testimony concerns his inventory notes reflecting his recovery of a flashlight and a

blanket from Reichmann’s car and his recollection of the State’s pressuring him to

testified that he had no contact with law enforcement officers between March 1988

and July 1988, before he testified in front of Riechmann’s jury that he received no

benefit for his testimony other than possibly a letter; and (3) newly discovered

evidence of innocence in the form of an eyewitness account of the shooting of the

victim.

8. The Federal Republic of Germany filed an amicus curiae brief alleging

that the State of Florida did not follow proper international protocol in the form of

Letters Rogatory when obtaining evidence in Germany used against Riechmann

during his trial. Despite Germany’s amicus brief, which was filed nearly seventeen

years after Riechmann’s murder conviction, Riechmann has not raised any issue on

this appeal regarding the propriety of the searches in Germany. Furthermore, it is

axiomatic that amici are not permitted to raise new issues. Dade County v. Eastern

Air Lines, Inc., 212 So. 2d 7, 8 (Fla. 1968); Michels v. Orange County Fire

Rescue, 819 So. 2d 158, 159-60 (Fla. 1st DCA 2002). Therefore, this issue is not

properly before this Court.

Further, this Court has already twice determined, both on direct appeal and

in Riechmann’s first habeas proceeding, that Riechmann was not entitled to

suppression of the evidence seized in Germany, and the continued litigation of this

issue is procedurally barred. Riechmann II, 777 So. 2d at 365-66; Riechmann I,

581 So. 2d at 138.

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testify at trial in a certain fashion. At the evidentiary hearing, the State objected to

Veski testifying for the defense, asserting his testimony was irrelevant to the two

claims on which an evidentiary hearing had been granted. Riechmann’s counsel

responded that the court must consider Veski’s testimony cumulatively with the

claim involving Smykowski. The court sustained the State’s objection and did not

allow Veski’s proffered testimony.

Riechmann now argues that Veski’s testimony should be considered as part

of his argument that the State’s "outrageous conduct" in this case violated both

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972), and that furthermore, the trial court erred in failing to grant an evidentiary

hearing on this claim. He asserts alternatively that Veski’s testimony could have

served as an impeachment of the prosecutor who testified on the Smykowski claim

at the evidentiary hearing. As noted, the lower court did not grant an evidentiary

hearing on Riechmann’s claim of outrageous law enforcement conduct, and

Reichmann did not advance the "impeachment" argument at the hearing.

We find no error in the trial court’s denial of an evidentiary hearing on the

"outrageous conduct" claim and possible Brady and Giglio violations, and we

agree with the State’s assertion that the claim was procedurally barred for not

9. The defense proposed to have Veski testify by telephone.

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having been properly asserted earlier in the case. The movant in a rule 3.850

motion filed in a capital case is entitled to an evidentiary hearing unless "(1) the

motion, files, and records in the case conclusively show that the [movant] is

entitled to no relief, or (2) the motion or a particular claim is legally insufficient."

Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000); see also Fla. R. Crim. P.

3.850(d). However, when a claim is raised in a successive motion, the movant has

the additional burden of demonstrating why the claim was not raised before. See

Owen v. Crosby, 854 So. 2d 182, 187 (Fla. 2003) ("A second or successive motion

for postconviction relief can be denied on the ground that it is an abuse of process

if there is no reason for failing to raise the issues in the previous motion.").

Because a court’s decision whether to grant an evidentiary hearing on a rule 3.850

motion filed in a capital case is ultimately based on written materials before the

court, its ruling is tantamount to a pure question of law, subject to de novo review.

See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003).

The State asserts that Riechmann failed to demonstrate why this "outrageous

conduct" claim in relation to Veski’s testimony had not been asserted in the prior

3.850 motion, citing transcripts from the trial and the first postconviction

proceedings demonstrating that Riechmann’s trial counsel knew early on, even

before trial, about Veski’s role in securing the blanket and flashlight from

Riechmann’s car as well as Veski’s claim of being pressured by the State.

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The State is correct that this current claim is procedurally barred and was

properly summarily denied by the trial court. The record reflects that Veski

performed an inventory of the car in which the murder occurred. Veski initially

stated at a pretrial deposition that he found a flashlight with bloodstains on it in the

trunk of the car during his inventory search. After this deposition, but before trial,

Veski informed Riechmann’s trial counsel that he had testified falsely about the

flashlight during the deposition and that he had refused to testify for the State at

trial because of alleged improper pressures the State placed upon him to

accommodate the State’s case. Despite these revelations, Riechmann’s counsel did

not call Veski as a defense witness at trial, and Veski never testified at the trial in

any capacity. Importantly, notwithstanding the requirements in our postconviction

rules, Riechmann never made any attempt in his successive motion to demonstrate

why he had not previously raised a claim relating to Veski.

In addition, during the trial, the State placed a folded blanket recovered from

10. The crime scene photographs depict this blanket being in the driver’s

seat. The State’s serology expert, William Rhodes, testified that specks of blood

found on the blanket in that position could only have reached the blanket during

the shooting if the driver’s seat was unoccupied at that time. Riechmann himself,

however, maintained that he had been sitting on the blanket while driving the car.

In both parties’ opening statements at trial, they stated the blanket was found on

the driver’s seat. Defense counsel also asserted:

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voir dire of Detective Robert Hanlon when the State attempted to introduce the

blanket. During the voir dire, Detective Hanlon stated that he saw the blanket on

the driver’s seat of the car when he secured the car the night of the murder and did

not see it again until he submitted the blanket to William Rhodes, the State’s

serology expert, for serology testing eight or nine months later. Detective Hanlon

stated that Veski inventoried the car two days after the murder and took the blanket

out of the car and delivered it to the Miami Beach Police Property Room.

Riechmann’s counsel further inquired:

Q. And do you know why the records show that it was

recovered from the right front seat of the car?

. . . .

A. I don’t believe it is in my records, sir, I don’t know.

Q. How about the records of the Miami Beach Police

Department?

A. I’m not privy to that, sir, I don’t know.

The evidence is going to show things were pulled out of the backseat

onto the front seat, stacked up on the hood of the car and then bagged

in mass. So we don’t know what had blood on it initially and where

that blood was initially as opposed to where and what had blood on it

and where it had blood on it in June of 1988, eight months later,

bullets, blood spots, gunshot residue.

Officer Charles Serayder, among the first policemen at the scene of the crime,

testified that the blanket was on the driver’s seat when he first entered the car to

check if the victim was still alive and had a pulse. Riechmann himself

subsequently testified that he believed the blanket was on the driver’s seat folded

the way it appeared in the crime scene photographs, although he claimed that the

twenty-one specks of blood on the top of the blanket facing the ceiling of the car

could have come from his dog, which underwent surgery and laid on the blanket

afterwards.

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Q. You did not take the blanket out of the car, correct?

A. No, sir.

Q. So you don’t know what happened or what was done or

what was laid on that blanket from the time you saw it on the night of

October 25th until you got it from the property room and gave it to

Mr. Rhodes on June what?

A. June 29th, sir.

Q. Do you?

A. No, sir.

Q. All right. There were other blood stained articles in that car,

weren’t there?

A. Yes, sir, there was.

Q. Towels, shawls, robes, correct?

A. That’s correct.

Q. Do you know whether they––well, first, do you know if this

is the original container that Veski put this blanket in?

A. I don’t know sir. You’ve got to ask Veski.

Q. Okay. So you don’t know whether this has been rebagged

since the time he collected it from the car and put it into the property

room, is that correct?

A. No, sir.

Q. Do you know whether or not this blanket was placed in a

bag, a large bag with a number of other blood stained articles?

A. No, sir, I don’t.

. . . .

Q. So how can you tell us under oath then, Mr. Hanlon, that

this blanket is in the same condition that you saw it on the night of

October 25th?

A. It looks like the same blanket that was on the seat of the car.

Q. Oh, it looks like the same blanket?

A. Yes, sir.

Q. Okay. How can you tell us that it has––it is in the same

condition as when you collected it or when you saw it rather?

A. I can’t tell you that, sir.

In short, the record is clear that the defense had long been aware of Veski’s

role in the case, including his claims of pressure from the prosecution. However,

no legal justification for failing to assert this claim at an earlier time was offered to

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the trial court below to overcome the procedural bar for claims raised in successive

postconviction motions. Accordingly, relief on this claim of "outrageous conduct"

was properly summarily denied by the trial court.

Regardless of this procedural bar, we also agree with the State’s assertion

that Riechmann could not have established a Brady or Giglio claim even if Veski’s

proffered testimony is considered, since the State never offered Veski as a witness

at trial or relied upon his testimony in any way in securing Riechmann’s

conviction.

Giglio Claim

A Giglio violation is demonstrated when it is shown (1) the prosecutor

presented or failed to correct false testimony; (2) the prosecutor knew the

testimony was false; and (3) the false evidence was material. Guzman v. State, 941

So. 2d 1045, 1050 (Fla. 2006). Once the first two prongs are established, the false

evidence is deemed material if there is any reasonable probability that it could have

affected the jury’s verdict. Id. Under this standard, the State has the burden to

prove that the false testimony was not material by demonstrating it was harmless

beyond a reasonable doubt. Id.; see also Mordenti v. State, 894 So. 2d 161, 175

(Fla. 2004).

The Giglio claim here fails fundamentally because it is undisputed that

Veski never testified, falsely or otherwise, at trial. See Buenoano v. State, 708 So.

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2d 941, 948 (Fla. 1998) (holding that because the witness the defendant claimed

presented "misleading, inaccurate, and perjured testimony" did not testify at trial,

the defendant’s Giglio claim was baseless).

Brady Claim

Brady requires the State to disclose material information within its

possession or control that is favorable to the defense. Mordenti, 894 So. 2d at 168

(citing Guzman v. State, 868 So. 2d 498, 508 (Fla. 2003)). To establish a Brady

violation, the defendant has the burden to show (1) that favorable evidence—either

exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the

State, and (3) because the evidence was material, the defendant was prejudiced.

See Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

To establish prejudice or materiality under Brady, a defendant must

demonstrate "a reasonable probability that the jury verdict would have

been different had the suppressed information been used at trial."

Smith v. State, 931 So. 2d 790, 796 (Fla. 2006) (citing Strickler v.

Greene, 527 U.S. 263, 289 (1999)). "In other words, the question is

whether ‘the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the

verdict.’ " Id. (quoting Strickler, 527 U.S. at 290).

Ponticelli v. State, 941 So. 2d 1073, 1084-85 (Fla. 2006). With regards to Brady’s

second prong, this Court has explained that "[t]here is no Brady violation where

the information is equally accessible to the defense and the prosecution, or where

the defense . . . had the information." Provenzano v. State, 616 So. 2d 428, 430

(Fla. 1993) (citing Hegwood v. State, 575 So. 2d 170, 172 (Fla. 1991); James v.

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State, 453 So. 2d 786, 790 (Fla. 1984)). Questions of whether evidence is

exculpatory or impeaching and whether the State suppressed evidence are

questions of fact, and the trial court’s determinations of such questions will not be

disturbed if they are supported by competent, substantial evidence. Way v. State,

760 So. 2d 903, 911 (Fla. 2000). This Court then reviews de novo the application

of the law to these facts. Lightbourne v. State, 841 So. 2d 431, 437-38 (Fla. 2003).

As we have already discussed, the record affirmatively demonstrates that

Riechmann’s counsel knew in advance of trial of Veski’s role in securing evidence

from the crime scene and knew of Veski’s assertions that he had testified falsely

during his pretrial deposition and was subjected to alleged pressure by the State.

Riechmann’s trial counsel testified at the initial postconviction evidentiary hearing

in this case that Veski "had been pressured to testify that way but he wasn’t going

to do it because it wasn’t true." In fact, no testimony concerning the flashlight

recovered from Riechmann’s car was presented at trial. In addition, during the first

postconviction hearing, although Riechmann’s trial counsel stated he did not recall

seeing Veski’s handwritten notes from his inventory search of the car, he admitted

those notes were found in trial counsel’s file. Hence, the record affirmatively

reflects defense counsel’s awareness of Veski’s controversial role in the case.

More importantly, it is also apparent from the record that Riechmann could have

called Veski to testify at trial regarding the flashlight, the location of the blanket,

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or the alleged pressure from the State. Moreover, since Veski did not testify at

trial, it also is apparent that any "pressure" on him never resulted in any benefit to

but was actually known to defense counsel, any Brady claim based upon its

existence must also fail.

We conclude, therefore, that the lower court did not err in excluding Veski’s

testimony at the limited evidentiary hearing as not being relevant to the claims

being tried. We also find no error in the trial court’s summary denial of any Brady

or Giglio claim predicated upon the State’s withholding of Veski’s evidence or

alleged pressure placed upon him by the State.

11. Riechmann also asserts that a cumulative analysis of Veski’s proffered

testimony along with other allegations of State misconduct would demonstrate

prejudice similar to that found in Mordenti, where this Court granted relief when

the cumulative effect of withheld Brady material cast doubt on the State’s key

witness, causing the confidence in the outcome of the trial to be undermined.

Mordenti, 894 So. 2d at 175. However, in Mordenti, the State admitted

suppressing evidence; indeed, both pieces of evidence that were evaluated

cumulatively to warrant relief were individually found to constitute Brady

violations. Mordenti, 894 So. 2d at 173-74.

In contrast, as noted above, Veski did not testify at trial, and the defense

knew of Veski’s inventory notes as well as Veski allegedly testifying falsely at his

deposition and being pressured by the State. This Court has held that when the

individual claims are procedurally barred or without merit, a claim of cumulative

error also fails. See Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) ("Because the

alleged individual errors are without merit, the contention of cumulative error is

similarly without merit, and [the defendant] is not entitled to relief on this claim.");

Downs v. State, 740 So. 2d 506, 509 n.5 (Fla. 1999) (examining all the defendant’s

claims including a Brady claim and finding none of them sufficient to warrant an

evidentiary hearing; therefore, there was no cumulative error).

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Riechmann next argues that the lower court should have allowed him to

perpetuate the testimony of Walter Smykowski by a deposition in Dubai, or

alternatively, the court should have allowed him to introduce Smykowski’s

affidavit at the evidentiary hearing. He also asserts that the trial court erred in its

ruling denying his Brady and Giglio claims based on the State’s failure to disclose

all of its pretrial contacts with Smykowski.

In his first rule 3.850 postconviction motion, Riechmann raised two claims

regarding Smykowski. First, he alleged that his trial "counsel was deficient for

failing to investigate evidence that would have discredited the State’s jailhouse

informant, Smykowski, who testified that Riechmann was elated at the prospect of

becoming a millionaire from Kischnick’s insurance policies." Riechmann II, 777

So. 2d at 357. Another inmate had offered to testify during trial as to Smykowski’s

lack of credibility, but Riechmann’s counsel had decided not to call this witness.

Id. This Court affirmed the trial court’s conclusion that Riechmann’s trial

counsel’s decision not to call the witness was reasonable. Id. Riechmann also

claimed that Smykowski testified only because prosecutors had told him that they

would help him get out of his federal criminal sentence. Id. at 361. Riechmann

argued that this evidence had not been disclosed and could have been used at trial

to impeach Smykowski. Id.

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However, at trial, Smykowski acknowledged that he was hoping that

the State would write a letter to the judge who was sentencing him,

and defense counsel asserted at closing argument that his testimony

was motivated by his desire for such a letter. Moreover, although a

letter was eventually written, the prosecutor testified at the evidentiary

hearing that he had not promised to write one.

Id. at 361. This Court affirmed the trial court’s findings in denying postconviction

relief that there had been express testimony at trial regarding the possibility of the

prosecutor writing a letter to the federal parole authorities, and hence this allegedly

withheld or newly discovered evidence presented no basis for relief. Id.

Deposition of Smykowski

In the current proceedings, postconviction counsel asserted that Smykowski,

while a fugitive from U.S. authorities, had given a statement to a German journalist

that his trial testimony was false. Terri Backhus, Riechmann’s current counsel,

testified that she learned from Peter Mueller, a German journalist, that Smykowski

had given an affidavit recanting his testimony from trial. Thereafter, Backhus met

with Smykowski in Dubai, United Arab Emirates, in March 2002 and showed him

his affidavit that she had obtained from Mueller. Smykowski told her that he had

lied at Riechmann’s trial and that the State told him what his testimony should be.

However, Smykowski would not return to the United States to testify because there

was an outstanding warrant for his arrest.

Riechmann moved to perpetuate the testimony of Smykowski by asking the

trial court to accept his deposition in lieu of live testimony at the postconviction

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evidentiary hearing. Counsel stated that she proposed an investigative trip to

Dubai, and that while there she would arrange a deposition, assuming she could

locate Smykowski, and the State could appear by overseas telephone and

Smykowski could testify while being videotaped and recorded. The State objected

to this proposal because a definite location as to Smykowski’s whereabouts was

not then known and, further, because Riechmann was asking the court to accept

testimony that had none of the reliability and procedural safeguards set out in

Florida Rule of Criminal Procedure 3.190(j) concerning depositions to perpetuate

testimony. The trial court denied postconviction counsel’s motion on the basis that

there was no witness available at that point, but it did so without prejudice and held

that if the witness was later located, it would revisit the matter.

Rule 3.190(j) states in relevant part:

(j) Motion to Take Deposition to Perpetuate Testimony.

(1) After the filing of an indictment or information on which a

defendant is to be tried, the defendant or the state may apply for an

order to perpetuate testimony. The application shall be verified or

supported by the affidavits of credible persons that a prospective

witness resides beyond the territorial jurisdiction of the court or may

be unable to attend or be prevented from attending a trial or hearing,

that the witness’s testimony is material, and that it is necessary to take

the deposition to prevent a failure of justice. The court shall order a

commission to be issued to take the deposition of the witnesses to be

used in the trial and that any nonprivileged designated books, papers,

documents, or tangible objects be produced at the same time and

place. If the application is made within 10 days before the trial date,

the court may deny the application.

- 19 -

Fla. R. Crim. P. 3.190(j). Of course, rule 3.190(j) applies to trials, not to

postconviction proceedings where discovery is limited and substantial discretion is

afforded the trial court. "The decision whether to grant a motion to perpetuate

testimony lies within the discretion of the trial court." Cherry v. State, 781 So. 2d

1040, 1054 (Fla. 2000). Hence, we review such a decision by the trial court for

abuse of discretion. Jackson v. State, 575 So. 2d 181, 187 (Fla. 1991).

In the present case, Riechmann’s motion was neither under oath nor

accompanied by sworn affidavits. Importantly, there was no assertion as to where

Smykowski was actually then residing, and the motion essentially asserts, "If

counsel finds Mr. Smykowski," a deposition can be arranged. Riechmann filed his

motion to perpetuate the testimony of Smykowski on January 28, 2002, and

proposed that the deposition be taken sometime between February 1 and 3, 2002.

The State asserts that the defense did not allow the State adequate notice to attend

Smykowski’s deposition even if it had occurred or could be arranged. At the

hearing on the matter, counsel admitted she had no address or phone number for

Smykowski and did not know if he could be found.

The State points out that any oath administered over the telephone from the

United States to Dubai would not have subjected Smykowski to the penalty of

perjury or otherwise have been effective in even assuring a minimum level of

reliability. See Harrell v. State, 709 So. 2d 1364, 1371 (Fla. 1998) (stating that an

- 20 -

oath is one of the additional safeguards of the Confrontation Clause and that "an

oath is only effective if the witness can be subjected to prosecution for perjury

upon making a knowingly false statement"). Further, Harrell held that it must be

established that an extradition treaty exists between the witness’s country and the

United States. Id. Here, it is undisputed that there is no extradition treaty between

the United Arab Emirates and the United States. See 18 U.S.C. § 3181 (2000).

Hence, these fundamental safeguards are wholly lacking here.

We agree that the circumstances presented to the trial court do not

demonstrate an abuse of discretion in the court’s rulings. The defense was

presenting a speculative scenario to the trial court fraught with concerns of

reliability. Not only would the defense attorney be traveling to a country with

which the United States has no extradition treaty in an attempt to find a convicted

felon and depose him with no enforceable oath, but at the time the request was ripe

there was only a three-day window of opportunity, with a state attorney

presumably on standby via phone in the United States.

Further, although Riechmann’s counsel testified that she met with

Smykowski in March 2002 (two months after Riechmann’s initial motion to

perpetuate testimony was denied), she waited until the end of the day on July 11,

2002, the day before the evidentiary hearing was scheduled to conclude, to renew

this motion, which again was denied. Rule 3.190(j)(1) specifically states that

- 21 -

requests to perpetuate testimony made within ten days of the evidentiary

proceeding may be denied. See Fla. R. Crim. P. 3.190(j)(1) ("If the application is

made within 10 days before the trial date, the court may deny the application.").

Finally, Riechmann’s counsel continuously acknowledged throughout the

proceedings that she could not state with any confidence where Smykowski might

be at any given time. Therefore, we conclude the trial court did not abuse its

discretion in finding Riechmann’s motion to perpetuate Smykowski’s testimony

insufficient and denying the motion without prejudice so that Riechmann could

renew the motion if Smykowski was actually located and the requirements of the

rule could be satisfied. See Pope v. State, 569 So. 2d 1241, 1246 (Fla. 1990)

(holding that a "party offering the deposition must show it has exercised due

diligence in its search for the deponent") (citing Pope v. State, 441 So. 2d 1073,

1076 (Fla. 1983)). Those circumstances were never demonstrated to exist here.

We also find no error in the trial court’s ruling that Smykowski’s affidavit

could not be introduced into evidence instead of a deposition because it is hearsay.

See Randolph v. State, 853 So. 2d 1051, 1062 (Fla. 2003) (finding that an affidavit

cannot be admitted into evidence in a postconviction proceeding unless it falls

under one of the four hearsay exceptions by which the statement of a declarant

who is unavailable as a witness may be presented into evidence). Riechmann has

failed to identify a proper legal predicate for admission of the affidavit.

- 22 -

Brady / Giglio Violations

Riechmann next argues that even without Smykowski’s deposition, the trial

court erred in denying his Brady and Giglio claims predicated upon the State’s

failure to disclose all of its contacts with Smykowski prior to trial. He argues that

the State failed to disclose false testimony concerning police contact with

Smykowski and Smykowski’s recently discovered pretrial visit with Detectives

Hanlon and Matthews to see his daughter, Smykowski’s letter to the State

Attorney’s Office asking for assistance in caring for his daughter, and the existence

12. Riechmann also relies upon evidence previously presented at the 1996

evidentiary hearing in the initial postconviction proceedings. This includes: (1)

character statements from thirty-seven German witnesses the State admitted to

withholding; (2) portions of Detective Trujillo’s police report containing

statements that were favorable to the defense which the trial court at the first

postconviction proceedings found to be improperly withheld by the State but not

undermining confidence in the reliability of the jury’s verdict; (3) police reports

from Detective Hanlon; (4) evidence involving the trial prosecutor’s letter to the

United States Parole Commission stating that Smykowski was instrumental in

achieving Riechmann’s guilty verdict and death sentence; and (5) other previously

undisclosed evidence presented in 1996.

This Court held in Riechmann II that Riechmann’s claim concerning the

thirty-seven German witnesses was "procedurally barred because he could and

should have raised it on direct appeal, since by trial’s end he was aware of the

statements." Riechmann II, 777 So. 2d at 363. This Court rejected Riechmann’s

Brady claim regarding Trujillo’s police reports because "there was no reasonable

probability that the results of the trial would have been affected had this evidence

been disclosed." Riechmann II, 777 So. 2d at 362. This Court affirmed the trial

court’s finding "that there was no undisclosed deal between Smykowski and the

State." Id. at 363. Because all these claims were found to be procedurally barred

or meritless, they cannot be considered in cumulative analysis.

- 23 -

Specifically, Riechmann asserted that the State failed to disclose at trial and

during the first postconviction hearing that Smykowski had gone on a Statearranged

visit to see his daughter and that law enforcement officers had bought

fried chicken for the occasion. Riechmann also presented a letter that Smykowski

had written to the prosecutor asking for help in suggesting someone who could

take care of his daughter while he was imprisoned. He alleged that the State

knowingly allowed misleading or false testimony to be presented without

correction when Smykowski testified that he had no contact with law enforcement

officers between March and July 1988.

Prosecutor Sreenan testified at the evidentiary hearing below that

Smykowski had sought out the State and volunteered his testimony against

Reichmann. She also asserted that she did not recall seeing any letter from

Smykowski concerning his daughter before Riechmann’s trial, and that while she

later became aware of the letter, the State did nothing for Smykowski’s daughter,

and his request for assistance was something the State would not get "involved in."

She also testified that if she had known about Smykowski’s visit to his daughter

and the officers’ purchase of fried chicken, she probably would have disclosed this

to the defense.

Also at the evidentiary hearing below, Detectives Robert Hanlon and Joe

Matthews confirmed that they had taken Smykowski on a trip to see his daughter

- 24 -

pursuant to his request. Detective Matthews testified that he and Hanlon had

secured Smykowski’s custody from jail in order to conduct further investigation on

the Riechmann case and, on the way back to jail, they allowed him a brief visit

with his daughter. Detective Hanlon testified that they bought fried chicken to eat

and that Smykowski was grateful. John Skladnik, a friend of Smykowski’s from

Poland, testified that he saw Smykowski and two men walk towards the house for

this visit. Deborah Schaefer, Smykowki’s daughter, testified that she remembered

her father coming to visit her once when she was a child. Edward Carhart,

Riechmann’s trial counsel, testified that he did not know of Smykowski’s letter to

Sreenan, and had no indication that Smykowski had visited his daughter. He said

he would have used this visit as impeachment of Smykowski.

The trial court concluded first that this claim was time-barred because

Riechmann did not demonstrate that he exercised due diligence in pursuing his

13. The trial court concluded in its order denying postconviction relief that

Riechmann had not exercised due diligence in pursuing his successive motion and

amended claims, citing specific instances of a lack of due diligence on issues

concerning Smykowski:

Specifically, a lack of due diligence is evident from the

following: (1) trial counsel’s testimony at the 1996 and 2002 post

conviction evidentiary hearing and trial counsel’s pre-trial deposition

of Smykowski revealed trial counsel (Edward Carlhart) and first post

conviction counsel (James Lohman) were aware of Smykowski’s

concern and security for his daughter; (2) the existence of the March

- 25 -

if the newly discovered or withheld evidence, which could have been used t

impeach Smykowski, had been turned over to the defendant, the outcome of the

case would not have been affected. The trial court reached this conclusion after

having evaluated and weighed each claim individually and cumulatively to one

another, as well as cumulatively with Riechmann’s previously presented claims

and the evidence presented at trial and in the 1996 and 2002 evidentiary hearings.

The trial court agreed that there was evidence that Detectives Hanlon and

Matthews failed to reveal their taking Smykowski to see his daughter and that the

State was charged with constructive knowledge of this event. But the trial court

held that this impeachment evidence would not have sufficient import to

undermine confidence in the outcome of the proceedings or otherwise merit

postconviction relief. The trial court also held that it could not conclude on the

evidence presented that the State knowingly misled the jury in any way with

Smykowski’s testimony.

o

27, 1988 letter from Smykowski to Sreenan which could and should

have been discovered before Defendant’s first Rule 3.850 motion filed

by postconviction counsel James Lohman in 1994; (3) first

postconviction counsel’s inadequate search for Smykowski; (4)

second post conviction counsel’s (Backhus) failure to request

information from journalist Peter Mueller concerning the whereabouts

of Smykowski; and (5) second post conviction counsel’s delay in

requesting a copy of Mueller’s investigative report or tape concerning

confession by Mark Dugen, as well as her failure to request from Mr.

Mueller copy of raw footage of Mark Dugen’s taped interview.

- 26 -

As explained above in relation to Veski, Brady requires the State to disclose

material information within its possession or control that is favorable to the

defense. To meet the materiality prong, the defendant must demonstrate a

reasonable probability that had the suppressed evidence been disclosed the jury

would have reached a different verdict. Strickler, 527 U.S. at 289. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.

Way, 760 So. 2d at 913; see also Strickler, 527 U.S. at 290. Also as explained

previously, a Giglio claim alleges that a prosecutor knowingly presented false

testimony against the defendant. The false evidence is deemed material if there is

any reasonable possibility that it could have affected the jury’s verdict. Guzman,

941 So. 2d at 1050.

On the merits, we concur with the trial court’s conclusion that the

impeachment evidence against Smykowski, considered with the impeachment

evidence already presented in prior proceedings, does not undermine confidence in

the outcome of Riechmann’s trial or otherwise demonstrate an entitlement to a new

trial. The jury heard at trial that Smykowski had once pled guilty to two bad check

charges, that he was concerned about his daughter’s welfare because both he and

his wife were in jail, that he regularly acted as an informant, that he hoped he

might receive a letter favorable to him from the State, and that he had been

convicted of seventeen counts of fraud. The additional evidence about

- 27 -

Smykowski’s daughter adds very little to an evaluation of Smykowski’s credibility.

Furthermore, concerning Smykowski’s State-arranged trip to see his daughter, it is

difficult to ascertain if the State actually presented false testimony when

Smykowski testified at trial concerning whether he had any other conversations

with the authorities about the case. It is apparent from the trial record that

Smykowski was having difficulty understanding questions on the stand because

English was not Smykowski’s first language. Whether Smykowski would have

understood these questions to include the visit with his daughter is unclear.

It is true that the State is assumed to know the activities of law enforcement

officers. See Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003) (concluding that

reward money a detective paid to a testifying witness was imputed on the

prosecutor who tried the case). However, even if this constituted false testimony,

we hold that it was not sufficiently material to merit a new trial when compared to

the substantial evidence presented against Riechmann at trial by the State. The

record also reflects evidence to support the trial court’s finding that Riechmann did

not conclusively prove the State actually had Smykowski’s letter to the State

before trial. Nevertheless, even accepting its nondisclosure, we find any harm to

- 28 -

be inconsequential and insufficient to meet the prejudice prongs of either Brady or

Riechmann also asserts that the lower court erred in denying his newly

discovered evidence claim based upon the testimony of allegedly newly discovered

14. As to the issue of reward money promised to Smykowski, Riechmann

failed to produce evidence to substantiate the claim at the evidentiary hearing.

15. At Riechmann’s first postconviction proceeding, he introduced the

testimony of Early Stitt and Hilton Williams. Stitt testified that he was selling

crack along Biscayne Boulevard when he heard a shot. He saw several men

approach a car but did not see the shooter and could not describe the color of the

car. He was not sure of the year of this occurrence, admitted to having his memory

refreshed by Riechmann’s private investigator, acknowledged thirty-eight felony

convictions and four aliases, and stated that he was under the influence of drugs the

night he witnessed the incident.

Williams, who was incarcerated at the time of his testimony, testified that he

was selling drugs with his girlfriend and Stitt (even though Stitt testified he was

not with Williams at this time) when he saw a red car with a rental tag, but he

could not remember the date. He thought the occupants of the car wanted to buy

drugs. Someone yelled at the car, the car made a U-turn, and someone named

Mark Dugen shot into the passenger side of the car. Williams also apparently

introduced Mark Dugen to a German journalist, and stated that Dugen committed

the shooting. Williams admitted having been convicted of ten felonies and that he

would lie if it suited his purpose. The trial court found these individuals’

testimony "to be less than credible and rife with inconsistencies with

[Riechmann’s] own testimony at trial." This Court affirmed the trial court’s

determination in Riechmann’s first postconviction proceeding that Williams’

testimony was "less than credible and ‘rife with inconsistencies’ with the

Defendant’s own testimony at trial." Riechmann II, 777 So. 2d at 360.

Williams testified at the second postconviction evidentiary hearing that the

man he produced to a German journalist was not Mark Dugen but was a drug

- 29 -

At the evidentiary hearing below, Williams testified that he was

unemployed, homeless, and sixty-four years old. He testified that he had heard of

an incident that occurred in the alleged area of the shooting, but did not see

anything firsthand. He further stated that he heard people discussing the incident

at a bar, and that he observed Mark Dugen and Doreen Bezner in the area. No one

from law enforcement spoke to Williams regarding the incident, and he testified

that he never heard of a person named Mark Gray, Bezner’s boyfriend. On crossexamination,

Williams admitted he was not sure of the month or year of the

incident he heard about, and he admitted to having a fifty-year drug and alcohol

abuse problem.

addict on the street whom he paid out of money he received from Riechmann’s

counsel and the German journalist. He stated that he had no personal knowledge

of the crime, except that told to him by Riechmann’s first postconviction counsel.

He stated that the State had promised him no money, and that he had lied in his

testimony in the first postconviction evidentiary hearing and arranged for others to

lie. A tape was also played at the second postconviction evidentiary hearing in

which he was discussing "charitable contributions to the Hilton Williams Be Free

Fund" with Riechmann’s current counsel. The trial court was entitled to consider

this prior evidence cumulatively with Williams’ current evidence in resolving the

credibility and weight of the evidence presented on the newly discovered evidence

claim.

Riechmann’s claim on appeal regarding "Kool," an alleged drug dealer and

associate of Williams who allegedly was overheard by Williams bragging about

"ripping off and wasting someone," was not raised as an issue in Riechmann’s

second postconviction motion. In fact, it was not raised until Riechmann’s written

closing argument after the second evidentiary hearing. Under these circumstances,

we conclude the trial court acted properly in rejecting any claim relating to "Kool"

as both untimely and improperly pled.

- 30 -

Bezner, also homeless, testified at the evidentiary hearing that she was living

with her boyfriend Mark Gray in October 1987. She stated that knew she was in

Miami at this time because she "left [her] kids." Bezner further testified that she

witnessed an incident off 62nd and Biscayne around dusk: "I was in a dope hole

shooting in a bush and a car pulled up and my old man [Mark Gray] sold dope, so

he held up his hands to stop the people and when the car pulled up two GITS

[young black boys] ran up to the car and shot and the car took off." She stated that

she was approximately ten to fifteen feet away, and that Mark Gray did not fire

shots into the car. Bezner testified that after this incident, Mark Gray locked her in

their hotel room and threatened her if she ever told anyone about the shooting, and

that he had indicated to her prior to the incident that he was expecting a heroin deal

to go through that night so they would have a lot of money and would not need to

"work anymore." Bezner stated that she remained in the hotel for a week until she

escaped because Gray had become abusive since the incident.

Bezner further testified at the hearing below that she did not notice what

color the car was but that she recognized the two occupants of the car because she

had seen them earlier in the day at a Denny’s restaurant. In describing the

occupants of the car, she stated, "The lady was blond. A lot of gold. That’s all I

can say about the lady." She stated that the man at Denny’s had "a bleach kind of

job, whatever it was," but then said he had "black hair with gray in it." At the

- 31 -

evidentiary hearing, Bezner could not identify anyone in the courtroom as being an

occupant of the car, even though Riechmann was present. However, upon being

shown a magazine with a picture of Riechmann in it, she was able to identify the

person in the picture as the driver of the car.

On cross-examination, Bezner stated that she had never known her boyfriend

to be called Mark Dugen, but she "wasn’t into his business." Concerning her crack

cocaine habit, Bezner stated that she was smoking crack cocaine at the time of the

incident and was constantly using crack then and now. She also admitted that she

was a prostitute and Mark Gray was her pimp, and that she has been convicted of

over ten felonies.

Following the evidentiary hearing, the trial court agreed that the testimony

of both witnesses would qualify as newly discovered evidence and, furthermore,

that Riechmann could not have known of these witnesses any earlier by exercising

due diligence. However, the trial court ultimately denied relief and concluded that

the testimony of the witnesses, when considered in conjunction with the evidence

introduced at Riechmann’s first rule 3.850 postconviction hearing and the evidence

introduced at trial, would probably not have produced an acquittal as required by

the standard for prejudice set out in Jones v. State, 591 So. 2d 911 (Fla. 1991)

(Jones I).

- 32 -

To obtain a new trial based on newly discovered evidence, a defendant must

meet two requirements: First, the evidence must not have been known by the trial

court, the party, or counsel at the time of trial, and it must appear that the defendant

or defense counsel could not have known of it by the use of diligence. Second, the

newly discovered evidence must be of such nature that it would probably produce

an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones

"weakens the case against [the defendant] so as to give rise to a reasonable doubt

as to his culpability." Jones II, 709 So. 2d at 526 (quoting Jones v. State, 678 So.

2d 309, 315 (Fla. 1996)). If the defendant is seeking to vacate a sentence, the

second prong requires that the newly discovered evidence would probably yield a

less severe sentence. See Jones I, 591 So. 2d at 915.

In determining whether the evidence compels a new trial, the trial court must

"consider all newly discovered evidence which would be admissible," and must

"evaluate the weight of both the newly discovered evidence and the evidence

which was introduced at the trial." Id. at 916. This determination includes

whether the evidence goes to the merits of the case or whether it

constitutes impeachment evidence. The trial court should also

determine whether this evidence is cumulative to other evidence in the

case. The trial court should further consider the materiality and

relevance of the evidence and any inconsistencies in the newly

discovered evidence.

- 33 -

Jones II, 709 So. 2d at 521 (citations omitted). When the trial court rules on a

newly discovered evidence claim after an evidentiary hearing, we review the trial

court’s findings on questions of fact, the credibility of witnesses, and the weight of

the evidence for competent, substantial evidence. Melendez v. State, 718 So. 2d

746, 747-48 (Fla. 1998); Blanco v. State, 702 So. 2d 1250, 1251 (Fla. 1997). As

with rulings on other postconviction claims, we review the trial court’s application

of the law to the facts de novo. Cf. Hendrix v. State, 908 So. 2d 412, 423 (Fla.

2005) (reviewing de novo the trial court’s application of the law to the facts in

ruling on a postconviction claim that the government withheld material evidence);

Gore v. State, 846 So. 2d 461, 468 (Fla. 2003) (reviewing de novo the application

of the law to the facts on a claim of ineffective assistance of trial counsel).

Consistent with the governing law, we conclude that the trial court’s finding

that the testimony of these two witnesses would probably not have produced an

acquittal on retrial as required by Jones II is supported by competent, substantial

evidence. Williams testified that he was not a witness to the crime; he simply

heard about it at a local bar. In addition, most of his testimony consisted of

hearsay that would not have been admissible at trial. Further, his testimony was

actually inconsistent with Riechmann’s testimony at trial concerning the relevant

- 34 -

than credible because of his drug addiction and his inability to recall any details

regarding the year, month, or time of day of the crime. Bezner’s testimony may

have been slightly more relevant, but still had many inconsistencies. Also, she

conceded she was high on crack cocaine at the time of the alleged incident and had

been convicted of many felonies, making her credibility a substantial issue.

Moreover, her testimony as to the incident was also inconsistent with Riechmann’s

trial testimony. Under our case law, the credibility of these two witnesses was a

matter for the trial court’s evaluation, and Riechmann has been unable to

demonstrate any flaw in that evaluation.

Riechmann further contends that the trial court erred in failing to conduct a

cumulative error analysis; however, the trial court’s order states that it considered

the evidence in connection with "the totality of the evidence presented both at trial

and at the first postconviction hearing." Given that the trial judge properly

"applied the law, and its findings are supported by competent substantial evidence,

. . . this Court is precluded from substituting its judgment for that of the trial court

on this matter." Melendez, 718 So. 2d at 748. Given that the asserted individual

16. Riechmann testified at trial that he and the victim had gotten lost so they

stopped and asked a lone black man for directions. The man provided the

directions and Riechmann turned to the back seat of the car to get his video

camera. As he turned back, the man fired the shot. Then Riechmann sped away

and looked for help.

- 35 -

errors are without merit, any claim of cumulative error is similarly without merit,

and Riechmann is not entitled to relief. See Griffin, 866 So. 2d at 22.

In short, because this claim rests substantially upon an evaluation of the

credibility of the newly produced witnesses, we will not substitute our evaluation

for that of the trial court. Therefore, we affirm the trial court’s rejection of this

claim as failing to meet the requirements of Jones.

Finally, Riechmann argues that Judge Bagley engaged in improper and

prejudicial ex parte communications with the State during the postconviction

proceedings and should have been disqualified. Specifically, Riechmann claims

that on February 27, 2003, one of the prosecutors handling Riechmann’s

postconviction proceedings sent a letter to Judge Bagley and copied Riechmann’s

counsel. The letter stated that Judge Bagley’s judicial assistant had contacted the

prosecutor’s secretary to obtain copies of depositions of certain evidentiary hearing

witnesses. The prosecutor responded to the request by letter to Judge Bagley,

declining to provide the requested material. Riechmann claims his counsel did not

receive the letter until the day after Judge Bagley denied postconviction relief;

thereafter, Riechmann’s counsel immediately filed a "motion to get the facts" and a

motion to disqualify Judge Bagley because the judge sought nonrecord evidence ex

parte.

- 36 -

In considering a motion to disqualify, the trial court is limited to

"determining the legal sufficiency of the motion itself and may not pass on the

truth of the facts alleged." Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005);

Fla. R. Jud. Admin. 2.330(f). In determining legal sufficiency, the question is

whether the alleged facts would "create in a reasonably prudent person a wellfounded

fear of not receiving a fair and impartial trial." Rodriguez, 919 So. 2d at

1274.

The Code of Judicial Conduct prevents judges from initiating or considering

ex parte communications concerning a pending proceeding. Fla. Code Jud.

Conduct, Canon 3(B)(7). In addition to this prohibition, this Court has also

denounced improper ex parte communication: "[A] judge should not engage in any

conversation about a pending case with only one of the parties participating in that

conversation. Obviously, . . . this would not include strictly administrative matters

not dealing in any way with the merits of the case." Rose v. State, 601 So. 2d

1181, 1183 (Fla. 1992). Without setting forth a bright-line rule, this Court has

provided insight into what may (and may not) be permissible, administrative ex

parte communication. See Rodriguez, 919 So. 2d at 1275 (concluding that the ex

parte communication was purely administrative when the state attorney, on the

public records request, informed the judge that the hearing was not a status

hearing, but an evidentiary hearing); Arbelaez v. State, 775 So. 2d 909, 916 (Fla.

- 37 -

2000) (determining that the ex parte communication was purely administrative

when the communications related to the time period for the State to file its 3.850

response and set dates for an evidentiary hearing and the defendant’s public

records hearing).

Riechmann contends that the prosecutor-judge communication demonstrates

that Judge Bagley was conducting an independent investigation into the case by

seeking access to depositions that had not been introduced into evidence.

However, Reichmann’s only support of this "theory" is his speculation that

because Judge Bagley communicated about obtaining depositions, he may also

have communicated about other topics. Further, it is undisputed that the State

rebuffed Judge Bagley’s request for the depositions, and Riechmann has not

pointed to any indication in the record that Judge Bagley made any other requests

for information or considered any improper information in resolving the pending

claims.

We reject Reichmann’s assertion that the contact here was similar to that we

disapproved in Smith v. State, 708 So. 2d 253, 255 (Fla. 1998) (concluding that the

trial court’s ex parte communication was improper when the judge telephoned the

state attorney to prepare the order denying 3.850 relief, called the state attorney

again requesting him to make a deletion in the order, and discussed a motion to

disqualify with the state attorney). We find no error in the trial court’s denial of

- 38 -

the motion to recuse. There simply is no indication in this record that the trial

court had any substantive ex parte contact with the State, and the inquiry

concerning the depositions, communicated by the court’s judicial assistant, did not

result in any improper or nonrecord material being considered by the court.

Nevertheless, we again caution that trial judges should be careful to avoid ex parte

contacts of any kind, even through the use of judicial assistants, that could be

perceived to have been made without the knowledge of all parties.

In light of the above analysis, we affirm the trial court’s denial of

postconviction relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and

BELL, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Dade County,

Jerald Bagley, Judge - Case No. 87-42355

Terri L. Backhus and Martin J. McClain of Backhus and Izakowitz, P.A., Tampa,

Florida,

for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,

Assistant Attorney General, Miami, Florida,

for Appellee

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Michael Tarre, Miami, Florida, on behalf of the Federal Republic of Germany,

as Amicus Curiae

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