JUAN ROBERTO MELENDEZ,

Appellant,

VS.

STATE OF FLORIDA,

Appellee.

No. 88,961

[June 11, 19981

PER CURTAM.

Juan Roberto Melendez appeals an order

of the trial court denying relief under Florida

Rule of Criminal Procedure 3.850. We have

jurisdiction. Art. V, 5 3(b)(l), Fla. Const. We

afirm.

The facts of this case are set out fully in

our opinion on direct appeal. & Melendez v.

State, 498 So. 2d 1258 (Fla. 1986). Juan

Roberto Melendez was convicted of the fn-st-

degree murder and armed robbery of Delbert

Baker and was sentenced to death. We

affirmed. Id. The trial court summarily denied

Melendez’s first motion for post-conviction

relief in July 1989, and we affirmed. Melendez

v. State, 612 So. 2d 1366 (Fla. 1992), cert.

denied, 5 10 U.S. 934 ( 1993). We denied his

subsequent petition for a writ of habeas

corpus. Melendez v. Sinpletary, 644 So. 2d

983 (Fla. 1994). Melendez filed the present

motion for post-conviction relief in September

1994, seeking to present newly discovered

evidence that another man, Vernon James, was

the killer. The trial court held an evidentiary

hearing in May 1996, wherein Melendez called

five witnesses. I

The court found that the testimony of

these witnesses, "either individually or

‘The first witness, Deborah Ciotti, a prostitute and

drug addict at the time of the murder, testified that James

told her he was going to rob the beauty shop. ARcr she

read about the murdtr she asked James if he did it and hc

responded by showing her some money and drugs. I Ie

ncvcr told her hc killed Baker. ‘l’he second witness,

Janice Dawson, lived with James after both were released

from prison on unrelated crimes. She dcscribcd James as

a con man, a liar, and a person adept at making people

believe what hc wanted them to believe. Dawson

testitied that James told her on many occasions that hc

had been involved in the murder, hut hc ncvcr said that he

killed Baker nor did he say who committed the murder.

Sandra Kay James, V~nlon’s sister, was the third witness.

She was addicted to drugs at the time of the murder and

is prcscntly serving a thirty-year prison scnlcncc. She

claims her brother told her that hc set up the robbery and

was present when Baker was murdered, but he did not

commit the murder. ‘I*he fourth witness, John Herrien,

testified against Mclcndcz at trial in exchange for a

negotiated pica agreement. l-Ie now claims that lhc police

intimidatti and coerced him into tcstil)ing falsely: that he

had seen Mclcndez with a .38 caliber pistol in the past

and on the night he drove Mclcndez to Baker’s beauty

school: that MclendcL had a towel when he came out 01

the beauty school; and that hc saw Mclcndez give George

Rerrien two rings, a watch, and a gun to take to

Dclawax ‘The lifth witness, Dwight Wells, the attorney

who rcprcsented Melendez’s coderendant John Berrien,

testitied that during the time hc represented Berrien,

James invited him to visit his jail cell wherein hc

confcsscd to I3aker’s murder. James told Wells that he

and Baker were homosexual lovers who had a fight about

aggressive sexual advances which resulted in James

killing Raker.

cumulatively, falls short of the standard

required to grant a retrial," and denied

Melendez’s rule 3.850 motion, Melendez

appeals that denial, raising four issues.2

Melendez first claims that newly

discovered evidence establishes his innocence

and the trial court erred in denying him relief,

We disagree. This Court set forth the relevant

standards in Blanc0 v. State, 702 So. 2d 1250

(Fla. 1997):

First, to qualify as newly

discovered evidence, "the asserted

facts 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

them by the use of diligence."

Second, to prompt a new trial, "the

newly discovered evidence must be

of such nature that it would

probably produce an acquittal on

retrial."

In reviewing a trial court’s

application of the above law to a

rule 3.850 motion following an

evidentiary hearing, this Court

applies the following standard of

review: As long as the trial court’s

findings are supported by

competent substantial evidence,

"this Court will not substitute its

judgment for that of the trial court

on questions of fact, likewise of

the credibility of the witnesses as

well as the weight to be given to

2Melendez claims error on the following points: (1)

newly discovered cvidcncc shows ~hal Mclcndcz is

entitled to a new trial; (2) u violations; (3) ineffective

consider the curnulativc clkct ol’all the newly discovcrcd

evidence.

the evidence by the trial court."

IB, at 125 1 (footnotes omitted) (quoting &xtes

and Demns v. State, 462 So. 2d 1074, 1075

(Fla. 1984)). In the present case, the trial

court addressed this claim at length and

concluded:

In support of the newly

discovered evidence claim the

defendant called five witnesses:

Deborah Ciotti, Janice Dawson,

Sandra Kay James, John Berrien

and Dwight Wells. They all

claimed that Vernon James had

made incriminating statements to

them about the murder. Four of

the five were not credible

witnesses and their testimony,

either individually or cumulatively,

falls short of the standard required

to grant a retrial.

. . . *

In summary, the newly

discovered evidence claim rests on

the testimony of three convicted

felons who say Vernon James

made incriminating statements

about the murder, the partial

recanting of a co-defendant’s

testimony, and a lawyer’s vague

memories of Vernon James’

several confessions. The original

it. The jury rejected that defense

and none of the above would likely

have been credible enough to

change that verdict in my opinion.

The record shows that the trial court properly

applied the law, and its findings are supported

bY competent substantial evidence.

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Consequently, this Court is precluded from

substituting its judgment for that of the trial

court on this matter. ti Blanco, 702 So. 2d

at 1252 (citing Demps v. State, 462 So. 2d

1074 (Fla. 1984)). We find no error.

Melendez next claims that the State

withheld material exculpatory evidence and

knowingly presented false testimony in

Brady violation, a defendant must prove the

following:

(I) that the Government possessed

evidence favorable to the

defendant (including impeachment

evidence); (2) that the defendant

does not possess the evidence nor

could he obtain it himself with any

reasonable diligence; (3) that the

prosecution suppressed the

favorable evidence; and (4) that

had the evidence been disclosed to

the defense, a reasonable

probability exists that the outcome

of the proceedings would have

been different,

1991) (quoting I Jnited States v. Meres, 866

F.2d 1304, 1308 (1 lth Cir. 1989).

In the present case, the trial court

addressed this claim at length and concluded:

The major problem with this

so-called Brady violation is that in

order to sustain it one has to

believe [defense witness] John

Berrien. I do not believe John

Berrien. Berrien had at least three

interviews with law enforcement

regarding this murder. The first

occurred on March 7, 1984 at the

Lakeland Police Department, The

interview was conducted by

Florida Department of Law

Enforcement Agent Tom Roper.

Glisson and Knapp were there as

was a Lakeland Police detective.

1984 at the Auburndale Police

Department. Presumably, this is

the interview Berrien complains of

in his affidavit and testimony, He

was arrested after this interview

and taken to the Polk County Jail.

Two days later Berrien called Det.

Glisson and asked him to come to

the jail because Berrien had more

to say. Glisson, and eventually

Roper, took a third confession at

the jail. While the three statements

differ in detail, they are basically

the same. It is difficult to

understand how Berrien’s allegedly

coerced statement on March 15th

vitiates the statement he made on

March 7th. Moreover, the police

obtained the March 17th statement

at the behest of Berrien himself. It

seems unlikely that Berrien would

summon his tormentors from

Auburndale only to subject himself

to further threats and coercion.

One may certainly question

Berrien’s motives for giving these

statements, but there is no credible

evidence of police misconduct,

None of the four elements of a

Brady violation were proved.

The trial court applied the right rule of law

governing the withholding of evidence under

Brady,’ and competent substantial evidence

3See. e.g., Iiawood, 575 So. 2d at 172.

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supports the trial court’s findings. We find no

error.

Melendez claims that trial counsel

provided ineffective representation during the

guilt phase of the trial, This claim was raised

in his previous motion for postconviction relief

and is procedurally barred.4 In his fmal claim,

Robert A. Butterworth, Attorney General, and

Candance M. Sabella, Assistant Attorney

General, Tampa, Florida,

for Appellee

Melendez argues that the trial court failed to

consider the cumulative effect of newly

discovered evidence, the Brady violation, and

ineffective assistance of trial counsel. These

claims were either meritless or procedurally

barred; therefore, there was no cumulative

effect to consider. We find no error. Based

on the foregoing, we affirm the denial of

Melendez’s rule 3.850 motion.

It is so ordered.

KOGAN, C.J., OVERTON, SHAW,

HARDING, WELLS and ANSTEAD, JJ., and

GRIMES, Senior Justice, concur.

NOT FlNAL UNTIL TlME EXPlRES TO

FILE REHEARING MOTION AND, IF

FILED, DETERMINED.

An Appeal from the Circuit Court in and for

Polk County,

Dennis P. Maloney, Judge w

Case No, CF84-1016A2

Gregory C. Smith, Capital Collateral Counsel,

Northern Region, Tallahassee, Florida, and

Gail E. Anderson, Special Assistant CCRC,

Greensboro, Florida,

for Appellant

4& Melmdcz v. State, 6 12 So. 2d 1366, 1368 (WI.

199 I > ("A defendant may not raise claims of incfl’cctivc

assistance of munscl on a picccmcal hasis by filing

successive motions.").

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