Supreme Court of Florida
No. SC2024-1099
RICHARD WALLACE RHODES,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
July 2, 2026
PER CURIAM.
Richard Wallace Rhodes, convicted of first-degree murder and
sentenced to death, appeals the circuit court’s denial of his
successive motion for postconviction relief under Florida Rule of
Criminal Procedure 3.851. We have jurisdiction. See art. V,
§ 3(b)(1), Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697
So. 2d 70, 71 (Fla. 1997) (holding “that in addition to our appellate
jurisdiction over sentences of death, we have exclusive jurisdiction
to review all types of collateral proceedings in death penalty cases”).
For the reasons explained below, we affirm.
I.
On March 2, 1984, a Florida Highway Patrol officer stopped
Rhodes while he was driving a vehicle registered to a woman named
Karen Nieradka. Rhodes v. State (Rhodes I), 547 So. 2d 1201, 1202
(Fla. 1989). Rhodes was arrested for driving without a valid driver’s
license and held at the Citrus County Jail.
Several weeks later, on March 24, Nieradka’s decomposing
body was found in debris being used to construct a berm in St.
Petersburg. The debris came from the Sunset Hotel in Clearwater,
which had been demolished on March 15. Nieradka was identified
through her fingerprints. The medical examiner determined that
manual strangulation was Nieradka’s cause of death and that she
had likely died two to eight weeks earlier. On March 26, detectives
from the Pinellas County Sheriff’s Office interviewed Rhodes at the
Citrus County Jail. During this and subsequent interviews, Rhodes
gave different and sometimes conflicting statements to his
interviewers. He always denied that he raped or killed Nieradka.
After an initial investigation, Rhodes was arrested for the firstdegree murder of Nieradka on April 27. During the ride from the
Citrus County Jail to Pinellas County, Rhodes offered to tell
-2-Detective Steve Porter how Nieradka had died if he could be
guaranteed that he would spend the rest of his life in a mental
health facility. Rhodes then claimed that Nieradka died accidentally
when she fell three stories at the Sunset Hotel.
The case proceeded to a jury trial. At trial, several of Rhodes’s
fellow inmates at the Pinellas and Citrus County Jails were called
as witnesses for the State. Two of those witnesses were Edward
Cottrell and Harvey Duranseau. Both Cottrell and Duranseau
testified about the incriminating statements that Rhodes made to
them. Cottrell testified that Rhodes confessed to murdering
Nieradka. Two other inmates also testified that Rhodes admitted to
killing Nieradka. Rhodes was convicted of first-degree murder and
sentenced to death. Id. at 1203. On direct appeal, this Court
affirmed Rhodes’s conviction but remanded for a new sentencing
proceeding. Id. at 1208. At the new proceeding, Rhodes again
received a death sentence. Rhodes v. State (Rhodes II), 638 So. 2d
920, 923 (Fla. 1994). This Court affirmed the sentence. Id. at 927.
In 2023, Rhodes filed a successive 1 rule 3.851 motion for
1. We affirmed the denial of Rhodes’s two previous
postconviction motions. See Rhodes v. State (Rhodes III), 986 So.
-3-postconviction relief, raising several claims. With that motion,
Rhodes attached three affidavits. The first affidavit was from
Duranseau, who claimed that when he was arrested in Citrus
County, the State seized his property. Duranseau claimed that
Detective George Simpson offered his property back if he testified
against Rhodes. The second affidavit, which was also from
Duranseau, made similar allegations. He further claimed that
Simpson took him and his brother, Ronald Jones, who was also in
custody at the Citrus County Jail, to a private room and questioned
them about Rhodes. Duranseau claimed that there, Simpson made
several statements tying Rhodes to the murder and suggested that
the brothers testify for the State. Duranseau claimed that Simpson
told them that he would consider their “help in this matter” in
deciding whether to return their seized property.
The third affidavit was from Cottrell. In this affidavit, Cottrell
claimed that the State directed him to get information from Rhodes.
He claimed that various law enforcement officers and assistant
state attorneys “coached and manipulated” him in the case. He
2d 501 (Fla. 2008); Rhodes v. State (Rhodes IV), 234 So. 3d 554 (Fla. 2018).
-4-stated that they told him what information they needed from
Rhodes, what questions to ask Rhodes, and what to testify about at
Rhodes’s trial. He also asserted that they provided him with key
facts about the case. He added that in exchange for his help with
the case, the assistant state attorneys promised that he would get a
lighter sentence for his own criminal case. He also claimed that he
received commissary items and other benefits at the jail. Cottrell
stated that contrary to his trial testimony, Rhodes told him that he
did not commit the murder. He also claimed that after he was
released from jail, the State wanted him to testify at Rhodes’s
rehearing. He asserted that the defense never contacted him. He
claimed that for resentencing, the State told him what to say but he
refused to do so.
Based on these affidavits, Rhodes moved for postconviction
relief, raising three constitutional claims and one claim of newly
discovered evidence. The postconviction court held an evidentiary
hearing on Rhodes’s claims. Rhodes presented the testimony of
eight witnesses, while the State called six witnesses. Rhodes’s
witnesses consisted of his counsel at resentencing, his original trial
counsel, and six jailhouse witnesses. Both Rhodes’s counsel at
-5-resentencing and his original trial counsel testified that before the
affidavits, they were unaware of Cottrell’s and Duranseau’s claims.
The jailhouse witnesses were Cottrell, Duranseau, and Jones, as
well as Henry Niblack, James Head, and Randall Neeld. Duranseau
testified that while he was at the Citrus County Jail, he stayed in
the same cell block as Rhodes and learned of Rhodes’s pending case
in Pinellas County. At some point, a detective from Citrus County
approached him at the jail. According to Duranseau, the detective
indicated that Duranseau could retrieve some of his property that
the State had seized if he spied on Rhodes. This property allegedly
included a truck, a house trailer, 55 ounces of pure gold, 1,000
ounces of pure silver, and about $14,000 in cash.
At the time when the detective approached him, Rhodes had
said nothing incriminating to Duranseau. Duranseau testified that
the detective told him that Rhodes was “a real rascal” and “a violent
homosexual.” He also claimed that the detective told him that
Rhodes was suspected of “breaking into old women’s houses and
killing them.” Duranseau claimed that the detective gave him a
bottle of liquor at their first meeting with the expectation that he
would get “Rhodes drunk and get admissions from him.”
-6-Duranseau claimed that he followed these instructions. Duranseau
recalled that he did not testify at trial about any of these claims.
Jones testified that it was a police officer named George
Simpson who approached him and Duranseau about Rhodes. Like
Duranseau, Jones claimed that Simpson gave them a bottle of
whiskey and told them if they testified against Rhodes, they would
get their property back. Jones did not recall Rhodes making any
incriminating statements to him.
Cottrell also testified about the contents of his affidavit,
claiming that his trial testimony was “manufactured by the State”
and that Rhodes never confessed to killing Nieradka. He testified
that the State asked him early on to gain information from Rhodes.
He claimed that he then gained information for several weeks before
meeting with State Attorney Bruce Young. In that meeting, Young
allegedly told him that Rhodes had committed the murder. Cottrell
claimed that he was under the impression that the State “knew
what [it was] talking about” and went along with what it was asking
him to do. He claimed that because of his testimony, he received
commissary items and was able to “walk around” in jail and be a
janitor. In exchange for his testimony, Cottrell claimed that the
-7-State told him that he would receive two years of prison time and
probation. He did not receive either.
Cottrell claimed that the State contacted him in 1990 or 1991,
after he was released from prison, to appear at a hearing about
Rhodes’s case. The State paid for a rental car for him to travel to
Pinellas County. When he arrived, the State provided him with a
statement to read. Cottrell testified that he argued with Young and
told him that he would not read the statement. Because he
declined to read the statement, Cottrell claimed that the hearing
went on without his testimony.
As for the defense’s other witnesses, Niblack testified that
Rhodes never discussed his case with him or made any
incriminating statements. This claim was contrary to a police
report where an officer wrote that Niblack had told him that Rhodes
made incriminating statements. Niblack denied ever making such
statements. Similarly, Head testified that he never discussed
Rhodes’s case with either Rhodes or law enforcement. He claimed
that he was just made aware that he was mentioned in a police
report. Finally, Neeld testified that he was incarcerated with
Rhodes and Duranseau. He claimed that while inmates often
-8-discussed their cases, they did not go into detail. Neeld claimed
that he heard Rhodes say that he was innocent. Other than Cottrell
and Duranseau, none of the jailhouse witnesses testified at
Rhodes’s trial.
On the other hand, the State presented Bruce Hauck, Bruce
Young, Fred Zinober, Steve Porter, Walter Kelly, and George
Simpson. Young and Zinober were previously with the State
Attorney’s Office and prosecuted the murder of Nieradka, while the
remaining witnesses were former detectives with the Citrus and
Pinellas County Sheriff’s Offices. The State’s witnesses denied all of
Cottrell’s, Duranseau’s, and the other witnesses’ claims.
Following the hearing, the postconviction court denied relief
for all of Rhodes’s claims, concluding that Rhodes’s jailhouse
witnesses were not credible. The postconviction court also denied
Rhodes’s motion for rehearing. This appeal follows.
II.
Rhodes raises four claims on appeal: (A) the State withheld
material and exculpatory evidence and knowingly presented false or
misleading evidence; (B) the State presented or failed to correct false
testimony; (C) the State elicited statements through state agents;
-9-and (D) the witness affidavits constitute newly discovered evidence
and entitle him to a new trial. 2
A.
Rhodes first contends that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by withholding material exculpatory
evidence. His claim has two parts.
1.
First, Rhodes asserts that the information in Duranseau’s and
Cottrell’s affidavits was never revealed to trial counsel and was
therefore suppressed by the State. He argues that this information
was favorable impeachment evidence. He also claims that the
information was material and demonstrates that Duranseau and
Cottrell were state agents. Without these affidavits, Rhodes asserts,
there is little evidence that he committed the murders.
Under Brady, the State is required to disclose material
2. The State asserts that Rhodes’s first and third
constitutional claims were procedurally barred because he previously raised the same claims. We note that the postconviction court may deny a claim as procedurally barred when the defendant attempts to relitigate an issue that he has previously raised. Barwick v. State, 361 So. 3d 785, 793 (Fla. 2023) (explaining that it is inappropriate to use “a different argument to relitigate the same issue” (citing Medina v. State, 573 So. 2d 293, 295 (Fla. 1990))).
- 10 -information within its possession or control that is favorable to the
defense. Walton v. State, 3 So. 3d 1000, 1009 (Fla. 2009) (citing
Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004)). To establish a
prima facie case under Brady, Rhodes must show “that (1) either
exculpatory or impeaching evidence, (2) was willfully or
inadvertently suppressed by the State, and (3) because the evidence
was material, the defendant was prejudiced.” Davis v. State, 26 So.
3d 519, 531 (Fla. 2009). In reviewing these claims, we defer to the
postconviction court’s factual findings when they are supported by
competent, substantial evidence, and review the legal application of
those facts de novo. Lightbourne v. State, 841 So. 2d 431, 437-38
(Fla. 2003) (quoting Stephens v. State, 748 So. 2d 1028, 1031-32
(Fla. 1999)); see also Lambrix v. State, 39 So. 3d 260, 272 (Fla.
2010) (applying the competent, substantial evidence standard to a
case involving the credibility of a recantation).
The postconviction court found that neither Cottrell nor
Duranseau were credible witnesses and rejected Rhodes’s claim on
that basis. It has long been our position that we will not substitute
our judgment for that of the lower court on issues of witness
credibility. Waterhouse v. State, 82 So. 3d 84, 106-07 (Fla. 2012)
- 11 -(citing Franqui v. State, 59 So. 3d 82, 102 (Fla. 2011)); see also Ibar
v. State, 190 So. 3d 1012, 1018 (Fla. 2016) (reasoning that
postconviction courts “hold a superior vantage point” in observing
the credibility of witnesses). We have also long observed that the
testimony of a recanting witness is, “as a general matter,
‘exceedingly unreliable.’ ” Mosley v. State, 209 So. 3d 1248, 1263
(Fla. 2016) (citing Spann v. State, 91 So. 3d 812, 816 (Fla. 2012));
see also Archer v. State, 934 So. 2d 1187, 1199 (Fla. 2006)
(affirming denial of postconviction relief “because a recantation
which is not credible would not produce an acquittal or a life
sentence on retrial”).
There was competent, substantial evidence to support the
postconviction court’s finding that Cottrell and Duranseau were not
credible witnesses. As the postconviction court explained in its
order denying relief, neither Cottrell nor Duranseau explained why
they waited nearly forty years to make their recantations. See
Jones v. State, 709 So. 2d 512, 521-22 (Fla. 1998) (“Where . . . some
of the newly discovered evidence includes the testimony of
individuals who claim to be witnesses to events that occurred at the
time of the crime, the trial court may consider both the length of the
- 12 -delay and the reason the witness failed to come forward sooner.”).
At the evidentiary hearing, the law enforcement witnesses’
testimony contradicted Cottrell’s and Duranseau’s claims, as well
as the testimony of Duranseau’s brother, Jones. See Kight v.
Dugger, 574 So. 2d 1066, 1073 (Fla. 1990) (“While there was
conflicting testimony concerning whether the state made
concessions in exchange for the informants’ testimony, it was
within the trial court’s discretion to find the state’s witnesses more
credible than those of the defense.”). Also, as the postconviction
court noted, Cottrell has nineteen prior felony convictions. See
Sweet v. State, 248 So. 3d 1060, 1067 (Fla. 2018) (considering the
recanting witness’s seven felony convictions as part of competent,
substantial evidence analysis). The State’s witness testimony at the
evidentiary hearing was consistent with and supported by the
record.3 See Waterhouse, 82 So. 2d at 104 n.11 (“[A]ttorneys and
3. For example, Cottrell claimed at the evidentiary hearing that the State rented him a vehicle and a hotel room to testify at Rhodes’s resentencing. Cottrell claimed that when he refused to testify as the State wished, the State opted to read his trial testimony to the jury. The record evidence contradicts Cottrell’s claims, as the State’s investigator testified at Rhodes’s resentencing that Cottrell was unavailable because he was incarcerated in a
- 13 -judges should be able to rely upon the veracity of a police report.”).
Before the affidavit in this case, Cottrell had consistently
maintained that neither the State nor law enforcement had directed
or encouraged him to secure incriminating information from
Rhodes. See Archer, 934 So. 2d at 1198 (noting that before a
recantation to the contrary, a witness’s prior testimony consistently
pointed to the defendant as the “mastermind of the crime”). And as
for Duranseau, he did not claim at the evidentiary hearing that any
of his trial testimony was false. See Sweet, 248 So. 3d at 1066
(concluding that there was no “true recantation” because the
witness testified at the evidentiary hearing that her trial testimony
was truthful).
For all these reasons, we conclude that competent, substantial
evidence supports the postconviction court’s finding that Cottrell
and Duranseau were not credible. See Waterhouse, 82 So. 3d at
107 (finding competent, substantial evidence of incredibility based
on the passage of time and the witness’s acknowledgement that his
memory was better at the time of the trial); Sweet, 248 So. 3d at
Daytona Beach prison.
- 14 -1067-68 (finding competent, substantial evidence of incredibility
where twenty-four years had passed and the witness was a seventime convicted felon and inconsistent in his testimony).
2.
As for the second part of Rhodes’s Brady claim, he alleges that
the State failed to disclose material, favorable evidence related to
law enforcement’s fabrication of investigative reports. He argues
that the evidence that “law enforcement falsified police reports” was
not disclosed to trial counsel and was therefore suppressed. He
also argues that this evidence was both favorable and material to
his case. Rhodes further claims that because he has shown law
enforcement’s willingness to fabricate evidence, the other
statements attributed to him should also be called into question.
To support this claim, Rhodes presented the testimony of Niblack
and Head, who, despite police reports to the contrary, testified that
they never spoke to law enforcement.
As with Rhodes’s other witnesses, the postconviction court
found that both Niblack and Head were uncredible and rejected
Rhodes’s claim on that basis. We find that competent, substantial
evidence supports that finding. Both Niblack and Head had
- 15 -multiple prior felony convictions. See Sweet, 248 So. 3d at 1067.
There was also law enforcement testimony and record evidence
contradicting Niblack’s and Head’s claims. See Clark v. State, 35
So. 3d 880, 893 (Fla. 2010) (rejecting claim for postconviction relief
where the new testimony was not consistent with the evidence
presented at trial).
Detective Kelly, who interviewed Head, testified that he would
not include false information in a police report. The postconviction
court concluded that it was unclear what motivation Kelly would
have to put “minimally useful information in his police report,”
especially when the statements were easily verifiable and would
likely not have been admissible without Head’s testimony. See
§ 90.802, Fla. Stat. (1985) (providing that hearsay evidence is
inadmissible). Detective Hauck, who interviewed Niblack, testified
at the evidentiary hearing that he would not have falsified an
interaction with a witness. In Hauck’s report, he wrote that other
inmates in Rhodes’s cell block declined to speak with him or denied
that Rhodes told them anything. It is not clear from Niblack why
Hauck would have falsified an interaction with just him. And the
rest of Hauck’s report included statements consistent with witness
- 16 -testimony at trial. See Waterhouse, 82 So. 3d at 104 n.11
(“[A]ttorneys and judges should be able to rely upon the veracity of
a police report.”).
For all the stated reasons, we find competent, substantial
evidence supports the postconviction court’s finding that Rhodes’s
witnesses lacked credibility. See Mosley, 209 So. 3d at 1259-63
(affirming the postconviction court’s finding that the defendant’s
witnesses were not as credible as the State’s witnesses).
Based on the findings that his witnesses lacked credibility, the
postconviction court found that Rhodes had not established that
exculpatory or impeaching evidence was willfully or inadvertently
suppressed by the State, as required under Brady. See Davis, 26
So. 3d at 531 (providing what is required for a Brady claim). Since
there was competent, substantial evidence to support this finding,
we find that the lower court did not err in denying relief under
Brady. See Way v. State, 760 So. 2d 903, 914-15 (Fla. 2000)
(explaining that competent, substantial evidence supported trial
court’s finding that witness lacked credibility, and therefore
defendant failed to establish Brady violation).
Even if we were to reject the postconviction court’s
- 17 -determination of witness credibility, Rhodes’s claim would still fail
because he cannot establish prejudice under Brady. To satisfy the
prejudice prong of Brady, a defendant must show that the
suppressed evidence was material. Mordenti, 894 So. 2d at 170
(citing Allen v. State, 854 So. 2d 1255, 1260 (Fla. 2003)). “Evidence
is material ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.’ ” Id. (quoting Strickler v. Greene, 527
U.S. 263, 280 (1999)). We review the lower court’s determination
about materiality de novo. Guzman v. State (Guzman I), 868 So. 2d
498, 508 (Fla. 2003) (citing Way, 760 So. 2d at 913).
As the postconviction court explained, the remaining
admissible testimony and evidence presented at trial was more than
sufficient to support Rhodes’s conviction. The evidence at trial
established that the victim was last seen alive with Rhodes. A
witness who lived with Rhodes at a safehouse testified that Rhodes
was acting strange when he returned late that evening. That
witness provided detectives with several pairs of Rhodes’s pants;
one pair had human blood on them. Rhodes’s coworkers at a
newspaper testified that he arrived late to work one morning, where
- 18 -he told them that the police had detained him the previous night
“because his girlfriend had been found strangled in a pile of lumber
. . . [and] he had been driving her car.” One of the coworkers
testified that Rhodes had warned her not to go to bars because
“strange things happen to girls at bars.” She also testified that
Rhodes said the victim should not “have been looking for Mr.
Goodbar.” The witness knew this statement to be a reference to the
book “Looking for Mr. Goodbar,” which is about a woman who was
murdered by a man she picked up in a bar.
Rhodes’s girlfriend at the time of the murder testified that she
saw him the day after the victim was last seen. He was driving
Nieradka’s car, which he claimed he “bought from an older lady.”
Rhodes gave his girlfriend several items that he claimed to have
found in a newly rented apartment; these items were later identified
as belonging to the victim. His girlfriend also testified that on that
same night, Rhodes placed his thumb on her throat and said, “Do
you know how easy it would be to kill somebody by pushing right
here?”
The next day, Rhodes was stopped while driving Nieradka’s
vehicle. He claimed that the vehicle belonged to his girlfriend. He
- 19 -had a handwritten note granting him permission to drive the car;
subsequent handwriting analysis revealed that Rhodes likely wrote
the note. After law enforcement found Nieradka’s body, Rhodes
made several incriminating statements to them. When Detective
Porter went to the Citrus County Jail to interview Rhodes, Rhodes
said that he knew that Porter was there about a murder before he
ever advised him of such. Rhodes attributed this knowledge to
“having ESP.” He later offered two other explanations— that his
coworker had told him and that he had seen it in the news.
Rhodes offered other contradictory stories about the victim’s
death. He sometimes claimed that he was present for her death;
other times he claimed that he found out about it afterward. He
listed several different men as being responsible for the victim’s
death. In each story, he stated that the victim was killed at the
Sunset Motel. Notably, however, the location of the victim’s death
was never released to the public, and law enforcement did not tell
Rhodes.
Rhodes also referred to himself as a “vampire who preys on the
lives of others.” And at one point, he said that if law enforcement
promised that he would spend the rest of his life in a mental health
- 20 -facility he would tell them how the victim died. He then suggested
that Nieradka died accidentally after a fall at the Sunset Motel. In
addition to these statements, there were also two other jailhouse
witnesses, John Bennett and Michael Allen, who never recanted
their testimony that Rhodes made incriminating statements.
As for the penalty phase of Rhodes’s trial, the State
established four aggravating factors without the testimony of any
jailhouse witnesses. Considering the ample evidence tying Rhodes
to Nieradka’s murder, the evidence that the jailhouse witnesses
acted as state agents does not put the case in such a different light
as to undermine confidence in the verdict. See Way, 760 So. 2d at
915 (articulating the standard for prejudice in these claims). Thus,
we agree with the postconviction court that Rhodes failed to
establish materiality under Brady. See Franqui, 59 So. 3d at 104
(concluding that there was no prejudice in the penalty phase
because the recanted testimony only affected one aggravating
factor).
B.
Next, Rhodes claims under Giglio v. United States, 405 U.S.
150 (1972), that the State violated his rights under the Fourteenth
- 21 -Amendment by presenting and/or failing to correct false testimony.
He claims that four witnesses––Cottrell, Duranseau, Allen, and
Bennett––testified falsely at trial. All four witnesses testified at trial
that there was no deal between them and the State. Allen and
Bennett were also jailhouse informant witnesses, but neither
recanted their testimony. Cottrell and Duranseau denied their prior
testimony, which Rhodes argued “undermine[d] the reliability of the
testimony of all four jailhouse agents.” Rhodes further argues that
Cottrell’s and Duranseau’s affidavits establish that the witnesses
testified falsely.
To establish a Giglio claim, the defense must prove that (1) the
State presented or failed to correct false testimony, (2) the State
knew the testimony was false, and (3) the false evidence was
material. Guzman v. State (Guzman II), 941 So. 2d 1045, 1050 (Fla.
2006) (quoting Guzman I, 868 So. 2d at 505). Under Giglio, the
defense must first establish that the State knowingly presented or
failed to correct false testimony. Guzman I, 868 So. 2d at 507. It is
then the State’s burden to establish “beyond a reasonable doubt
that the knowing use of perjured testimony, or failure to disclose
the perjury once it was discovered, did not affect the verdict.”
- 22 -Guzman II, 941 So. 2d at 1050-51. We apply a mixed standard of
review to Giglio claims, deferring to the trial court’s factual findings
when they are supported by competent, substantial evidence, and
reviewing the application of the law to those facts de novo. Id. at
1049-50 (citing Suggs v. State, 923 So. 2d 419, 426 (Fla. 2005)).
Any claims by Rhodes about Allen or Bennett are pure
speculation, and we reject them. See Wickham v. State, 124 So. 3d
841, 855 (Fla. 2013) (finding that allegations of the State
withholding evidence were “merely conclusory and speculative”). As
for Cottrell and Duranseau, the postconviction court reiterated its
finding that they lacked credibility. As we explained above,
competent, substantial evidence supports that finding. Green v.
State, 975 So. 2d 1090, 1107 (Fla. 2008) (concluding that there was
competent, substantial evidence based on finding that one witness
was more credible). Based on that finding, the postconviction court
properly concluded that Rhodes failed to demonstrate that the State
presented or failed to correct false testimony at trial. See Hurst v.
State, 18 So. 3d 975, 992 (Fla. 2009) (finding no Giglio violation
“[b]ased on the testimony presented and found credible at the
- 23 -evidentiary hearing”). We therefore affirm the lower court’s finding
denying relief.
C.
Next, Rhodes claims under Massiah v. United States, 377 U.S.
201 (1964), that the State violated his Sixth and Fourteenth
Amendment rights by eliciting statements through state agents. He
alleges that the State recruited Cottrell when he was a “trustee” at
the Pinellas County Jail. He claims that Cottrell “expected
something in return for his testimony against Rhodes.” He claims
that Duranseau was also in communication with law enforcement
about Rhodes’s case. At trial, Duranseau “acknowledged that his
statements to law enforcement were coerced . . . but changed his
story when questioned further on redirect [examination].” Rhodes
further alleges that Allen and Bennett coordinated with the State.
In sum, Rhodes claims that through Duranseau’s and Cottrell’s
statements, he could prove that the State violated his right to
counsel and used Cottrell, Duranseau, Allen, and Bennett as state
agents to deliberately elicit information from him. Like Rhodes’s
other constitutional claims, we evaluate the postconviction court’s
factual findings for competent, substantial evidence, and review
- 24 -legal conclusions de novo. See Johnson v. State, 135 So. 3d 1002,
1026 (Fla. 2014) (applying the competent, substantial evidence
standard to review of factual findings in a similar claim).
Once the right to counsel has attached, the Sixth Amendment
prohibits law enforcement officers from deliberately eliciting
statements from a defendant. Massiah, 377 U.S. at 206. But
unlike the Fifth Amendment-based Miranda right to counsel, the
Sixth Amendment right to counsel is offense-specific. Herard v.
State, 390 So. 3d 610, 621 (Fla. 2024), cert. denied, 145 S. Ct. 1315
(2025). It attaches when a prosecution commences and cannot be
invoked once for all future prosecutions. McMillian v. State, 214 So.
3d 1274, 1285 (Fla. 2017) (citing McNeil v. Wisconsin, 501 U.S. 171,
175 (1991)).
Here, Rhodes’s right to counsel did not attach until he was
arrested for Nieradka’s murder on April 27, 1984, and transported
to the Pinellas County Jail. When the State allegedly elicited
incriminating statements from Duranseau, Rhodes was in the
Citrus County Jail for unrelated charges. Because Rhodes’s right to
counsel had not yet attached, he cannot demonstrate a Massiah
violation based on law enforcement’s interview with Duranseau.
- 25 -See Rolling v. State, 695 So. 2d 278, 290 n.8 (Fla. 1997) (“[T]he right
to counsel must attach and be acknowledged by the accused before
he or she receives the benefit of the Sixth Amendment protections
set out in Massiah.” (citing Patterson v. Illinois, 487 U.S. 285, 290-91 (1988))).
Rhodes also alleged that Allen and Bennett acted as state
agents. But he did not present any evidence of this claim. Rather,
he premised his allegation on Cottrell’s and Duranseau’s affidavits,
arguing that their statements also showed that Allen and Bennett
acted as state agents. There was no testimony at the evidentiary
hearing by Allen or Bennett, nor any other factual evidence in
support of Rhodes’s claim. See Suggs, 923 So. 2d at 428 (rejecting
a Massiah claim based on insufficient evidence partly because the
alleged state agents did not testify at the postconviction evidentiary
hearing). As the postconviction court explained, even if law
enforcement did use Cottrell or Duranseau to elicit information
from Rhodes, that finding would not establish that they used Allen
or Bennett in the same manner. The postconviction court therefore
properly rejected Rhodes’s claim. See id. (citing Lightbourne v.
State, 438 So. 2d 380, 386 (Fla. 1983)).
- 26 -Finally, as for Cottrell, the postconviction court rejected
Rhodes’s claim based on its credibility determination, concluding
that Rhodes failed to establish that the State deliberately elicited
incriminating statements. As explained under the other
constitutional claims, competent, substantial evidence supports the
postconviction court’s factual finding. See Johnson, 135 So. 3d at
1026 (rejecting a Massiah claim when the postconviction court’s
finding about a witness’s credibility was supported by competent,
substantial evidence). We therefore affirm the lower court’s denial
of this claim.
D.
Finally, Rhodes argues that even if his constitutional claims
fail, the witness affidavits constitute newly discovered evidence and
entitle him to a new trial. To obtain relief based on newly
discovered evidence, a defendant must establish that (1) the
evidence was unknown at the time of trial and could not have been
discovered through due diligence and (2) the evidence is of such a
nature that it “would probably yield a less severe sentence on
[retrial].” Brown v. State, 304 So. 3d 243, 272-73 (Fla. 2020)
(quoting Swafford v. State, 125 So. 3d 760, 767 (Fla. 2013)); see
- 27 -also Jones, 709 So. 2d at 521 (establishing the two-part test to set
aside a conviction based on newly discovered evidence).
We have long observed that witness recantations are
“exceedingly unreliable” and exercise caution in assessing them.
Johnson v. State, 769 So. 2d 990, 998 (Fla. 2000) (quoting Bell v.
State, 90 So. 2d 704, 705 (Fla. 1956)); see also Robinson v. State,
707 So. 2d 688, 691 (Fla. 1998) (noting that recanted testimony
may be unreliable and stressing caution). A postconviction court
has a duty to deny a new trial if it is not satisfied that the recanting
testimony is true, especially if it involves a confession of perjury.
Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994) (quoting Bell, 90
So. 2d at 705). Moreover, when a newly discovered evidence claim
relies on an admission of perjury, which it does in this case, the
issue of credibility arises. Archer, 934 So. 2d at 1196. We are
highly deferential to the lower court’s judgment on issues of
credibility. Id. (first citing Johnson, 769 So. 2d at 1000; and then
citing Robinson v. State, 865 So. 2d 1259, 1262 (Fla. 2004)). As
explained under the constitutional claims, competent, substantial
evidence supports the lower court’s finding that Cottrell and
- 28 -Duranseau were not credible. 4 We therefore affirm the lower court’s
finding.
The postconviction court’s finding that the “newly discovered
evidence” was not of such a nature that it would probably produce
an acquittal on retrial was also not in error. To make this
determination, the lower court is required to “ ‘consider all newly
discovered evidence which would be admissible’ at trial and then
evaluate the ‘weight of both the newly discovered evidence and the
evidence which was introduced at the trial.’ ” Robinson, 865 So. 2d
at 1262 (quoting Jones, 709 So. 2d at 521). In this case, the lower
court properly considered the other evidence presented in trial, as
well as the context and history of Cottrell and Duranseau as
witnesses. Id. at 1263 (citing State v. Spaziano, 692 So. 2d 174,
178 (Fla. 1997)). We therefore affirm the lower court’s finding that
Rhodes is not entitled to relief.
4. A claim of newly discovered evidence must be supported by affidavits. Fla. R. Crim. P. 3.851(e)(2)(C). We therefore reject any claims by Rhodes about Allen or Bennett, who did not submit affidavits. Gonzalez v. State, 253 So. 3d 526, 528 (Fla. 2018) (“Mere speculation is not sufficient to form the basis for postconviction relief.” (quoting Ellerbee v. State, 232 So. 3d 909, 918 (Fla. 2017))).
- 29 -III.
For the reasons stated, we affirm the trial court’s denial of
Rhodes’s successive motion for postconviction relief.
It is so ordered.
COURIEL, C.J., and LABARGA, MUÑIZ, GROSSHANS, FRANCIS, SASSO, and TANENBAUM, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County,
Joseph Anthony Bulone, Judge
Case No. 521984CF003982AXXXNO
J. Jervis Wise of Brunvand and Wise, P.A., Clearwater, Florida,
for Appellant
James Uthmeier, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida,
for Appellee
- 30 -