Supreme Court of Florida

____________

No. 96,818

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Appellant,

vs.

Appellee.

[October 27, 1999]

PER CURIAM.

Terry Melvin Sims, under sentence of death and warrant for execution,

appeals the trial court's denial of his motion for postconviction relief filed pursuant

to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See Art. V, §

3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court's order

denying postconviction relief.

PROCEDURAL BACKGROUND

Sims was convicted of first-degree murder and robbery for the 1977 fatal

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shooting of George Pfeil, a uniformed, off-duty deputy sheriff who entered a

pharmacy in Seminole County while it was being robbed by Sims and three other

recommendation, finding several aggravating circumstances and no mitigating

factors. This Court affirmed the convictions and sentence on direct appeal. See

Sims v. State, 444 So. 2d 922 (Fla. 1983), cert. denied, 467 U.S. 1246 (1984). Sims

then filed a motion for postconviction relief pursuant to rule 3.850 of the Florida

Rules of Criminal Procedure based on claims of ineffective assistance of counsel,

evidence allegedly withheld by the State concerning a codefendant's plea bargain,

hearing, the trial court denied relief, and this Court affirmed. See Sims v. State, 602

So. 2d 1253 (Fla. 1992), cert. denied, 506 U.S. 1065 (1993). This Court also

denied Sims' petition for writ of habeas corpus. See Sims v. Singletary, 622 So. 2d

980 (Fla. 1993).

In 1993, Sims filed a federal petition for habeas corpus in the United States

District Court for the Middle District of Florida. That court denied relief as to the

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conviction, but granted relief as to the death sentence. See Sims v. Singletary, no.

93-1055-CIV-ORL-22 (M.D. Fla. Aug. 22, 1997). The Eleventh Circuit Court of

Appeals affirmed the district court's denial of relief as to conviction, but reversed the

grant of relief as to sentencing. See Sims v. Singletary, 155 F.3d 1297 (11th Cir.

1998). The United States Supreme Court denied certiorari. See Sims v. Moore,

119 S. Ct. 2373 (1999).

On September 23, 1999, Governor Bush issued a warrant scheduling Sims for

the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not providing the

defense a 1978 police report prepared by H. F. McGilvray, an investigator with the

Gainesville Police Department. The report highlights McGilvray's interview with B.

B. Halsell, a participant in the 1977 pharmacy robbery, wherein Halsell admitted to

committing a number of drugstore robberies and burglaries in the Gainesville area

with a man by the name of Terry Wayne Gayle. Sims contends Detective Anthony

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Calangelo of the Seminole County Sheriff's Office was aware of the interview with

Halsell and that the report would have supported his theory of defense that Gayle,

not Sims, participated in the Seminole County pharmacy robbery. In a second,

related claim, Sims alleges that newly discovered evidence that Halsell and Curtis

Baldree lied about Sims' involvement in the murder establishes his innocence. Sims

bases this claim on statements by four men who assert that after the trial in this case

The trial court conducted an evidentiary hearing on both claims on October 24,

1999. Following the hearing, the trial court denied the motion.

APPEAL

With regard to claim I, the Brady claim, the trial court found that there was no

evidence that Lieutenant Calangelo had the McGilvray report and suppressed it from

the defense. The trial court acknowledged that the report indicated Halsell and

Gayle's involvement in drugstore robberies in Gainesville. However, the trial court

found that Halsell had been "thoroughly discredited by cross-examination at trial"

and that "it stretches the imagination to suppose that the only Terry in the group that

committed crimes outside of Gainesville was Terry Gayle." In fact, the same report

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lists Sims as a prominent member of a group, including Halsell, that frequently

committed drugstore robberies and burglaries. The record also reflects that Halsell

had conceded before and during trial his involvement in other crimes with Gayle.

Accordingly, the court denied claim I.

With regard to claim II, the trial court found that Sims had satisfied the

threshold requirement for asserting a claim based on newly discovered evidence

because Halsell had not made the alleged statements until after Sims' trial. The trial

court also accepted as true the fact that Halsell had made the statements. However,

the trial court concluded that this evidence would probably not produce an acquittal

on retrial. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) ("In order to provide

relief, the newly discovered evidence must be of such nature that it would probably

produce an acquittal on retrial."). The court reasoned:

In order for newly discovered evidence to be the

basis for relief it must have been unknown by the trial

court, by the party, or by counsel at the time of trial, and it

must appear that the defendant or his counsel could not

have known about it through the use of due diligence.

Since the statements attributed to Halsell were made after

the trial they appear to meet this threshold test. However,

the question before the court is whether this evidence

would probably produce an acquittal at retrial. Jones v.

State, 591 So. 2d 911 (Fla. 1991). The answer to this

question is probably not. First, there are three

independent eyewitnesses to the robbery. Second, the

testimony of the other codefendant who testified at trial,

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Curtis Baldree, has not been attacked as untrue except to

theorize that if Halsell said he was lying at trial Baldree

must have lied too. Third, the person who shot and killed

George Pfeil was wounded in the process by a gunshot to

the hip. The defendant had such a wound which went

untreated for several days. The doctor who treated Sims

testified at trial as a rebuttal witness.

Thus, the trial court concluded that there was substantial evidence to convict Sims

of the murder even in the face of the impeachment evidence concerning Halsell now

asserted.

Upon our review of the record and the guiding principles under Brady v.

Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by the prosecution

of evidence favorable to an accused . . . violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution"), and the United States Supreme Court's recent decision in Strickler

v. Greene, 119 S. Ct. 1936, 1948 (1999) ("The evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is impeaching; that the

evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued."), we find no error with the trial court's denial of

the Brady claim. On the record, which includes defense counsel's acknowledgment

of an awareness of Halsell's criminal involvement with Gayle in other robberies and

burglaries, we cannot conclude that the State's failure to provide the information

contained in the Gainesville report undermines our confidence in the outcome of the

proceedings.

Likewise, after considering the record and the law concerning newly

discovered evidence as set forth in Jones, we find no error with the trial court's

conclusion that the newly discovered impeachment evidence was not sufficient to

probably produce an acquittal. We can find no fault, factually or legally, with the

trial court's analysis and assessment of the evidence.

Accordingly, we affirm the trial court's denial of Sims' motion for

postconviction relief. No motion for rehearing will be heard.

It is so ordered.

HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and

QUINCE, JJ., concur.

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

O.H. Eaton, Jr., Judge - Case No. 78-363-CFA

Richard Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender,

West Palm Beach, Florida; and Mark E. Olive and Timothy P. Schardl, Special

Assistant Public Defenders of the Law Offices of Mark E. Olive, P.A., Tallahassee,

Florida,

for Appellant

Robert A. Butterworth, Attorney General, and Judy Taylor Rush and Kenneth S.

Nunnelley, Assistant Attorneys General, Daytona Beach, Florida,

for Appellee