Supreme Court of Florida
____________
No. SC04-520
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ROBERT CONSALVO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 18, 2006]
PER CURIAM.
Robert Consalvo appeals an order of the circuit court denying a motion for
postconviction relief 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 Consalvo’s postconviction motion.
FACTUAL AND PROCEDURAL HISTORY
Consalvo was convicted and sentenced to death for the first-degree murder
of Lorraine Pezza. The underlying facts appear in this Court’s opinion in
Consalvo’s direct appeal:
On October 3, 1991, at approximately 12:40 a.m., Nancy
Murray observed a man wearing a brown towel over his head cut a
screen door and enter the residence of Myrna Walker, who lived
downstairs from the victim. Murray called the police and Consalvo
was apprehended while burglarizing the apartment. Fresh pry marks
were found on a sliding glass door along with a cut porch screen.
Assorted jewelry was found lying on the bedroom floor with a
screwdriver and towel. When police searched Consalvo, they found
checkbooks belonging to Pezza, as well as to Walker, and a small
pocketknife. Consalvo was arrested and subsequent to his arrest,
Consalvo repeatedly asked the police what his bond would be for this
burglary offense and how quickly he could be released.
That same day, Detective Doethlaff went to [the victim,
Lorraine] Pezza’s apartment to investigate why Consalvo was in
possession of her checkbook. Doethlaff observed fresh pry marks on
Pezza’s front door between the deadbolt and the doorknob. When no
one answered the door, which was locked, Doethlaff left a business
card at the door requesting Pezza to contact the police. That evening,
after Pezza’s family had tried unsuccessfully for several days to reach
her, Eva Bell, a social worker for the Broward Mental Health
Division, went to the victim’s apartment to check on her. While at the
apartment, Bell encountered Pezza’s next-door neighbor, Consalvo’s
mother, Jeanne Corropolli. Corropolli, who lived with Consalvo,
related to Ms. Bell that her son had been arrested earlier that day (for
the burglary of Mrs. Walker’s apartment). After receiving no
response at Pezza’s apartment, Bell contacted the police. At 7:16 p.m.
Officer Westberry responded to Bell’s request to check on Pezza. He
knocked on Pezza’s apartment door without getting a response and
noticed Doethlaff’s business card was still in the door jamb. The
officer went back to his patrol car to complete his report. Bell, who
was still in Corropolli’s apartment, testified that shortly after the
officer left the apartment, Corropolli was on the phone. Corropolli
hung up the phone and became hysterical. Corropolli told Bell that
her son, Robert Consalvo, said that he was “involved in a murder.”
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Corropolli testified that when she told her son the police were next
door, he replied, “Oh, shit.” Bell immediately related this information
to Officer Westberry, who then forced open Pezza’s apartment door
and discovered her decomposing body in the apartment. The porch
screens of Pezza’s apartment were cut.
At 10:10 p.m., Detective Gill of the Broward Sheriff’s Office
contacted Consalvo at the Pompano Jail Annex. After advising
Consalvo of his rights, Gill notified Consalvo that they wanted to
speak to him about Pezza’s checks being found on his person at the
time of his arrest. Consalvo responded by stating: “[Y]ou are not
going to pin the stabbing on me.” At this time, Gill did not know that
Pezza had been stabbed.
At 2:30 a.m. the next day, Detective Gill effectively arrested
Consalvo by filing an add charge against him for the murder of
Lorraine Pezza. Consalvo had not yet been released on bond for the
burglary charge. When a search warrant was executed on Corropolli’s
apartment, the police found a bloody towel in a dresser in Consalvo’s
bedroom. Subsequent DNA testing matched the blood on the towel
with the victim’s blood. In a statement to the police, Consalvo’s
mother confirmed that her son had in fact called her from the county
jail and had advised her that he might be implicated in a homicide.
She further informed police that she had found a towel in her son’s
room with blood on it.
While incarcerated in the Broward County Jail, Consalvo made
inculpatory statements to a fellow inmate named William Palmer.
Consalvo told Palmer that he killed Pezza after she caught him
burglarizing her apartment and said she would call the police. When
she started to yell for help, Consalvo stabbed her. Lorraine Pezza was
stabbed three times with five additional superficial puncture wounds.
The fatal wound was to the left side of the chest. . . .
On February 11, 1993, appellant was convicted of armed
burglary and the first-degree murder of Lorraine Pezza. The jury
recommended the death sentence by a vote of eleven to one. The trial
court found two aggravating factors: (1) the capital felony was
committed while the defendant was engaged in the commission of a
burglary, see § 921.141(5)(d), Fla. Stat. (1995); and (2) the capital
felony was committed for the purpose of avoiding or preventing a
lawful arrest, see id. § 921.141(5)(e). The court found no statutory
mitigating circumstances. As for nonstatutory mitigating
circumstances it accorded the following “very little weight”: (1)
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appellant’s employment history; and (2) appellant’s abusive
childhood. Because the “mitigating factors have been given very little
weight and they in no way offset the aggravating factors,” the trial
court found the death sentence “fully supported by the record.”
Consalvo v. State, 697 So. 2d 805, 809-11 (Fla. 1996) (footnotes omitted).
This Court affirmed Consalvo’s conviction and sentence on October 3, 1996,
and denied rehearing on July 17, 1997, as revised on denial of rehearing,
October 16, 1997.1 See id. at 805, 809. The United States Supreme Court
1. Consalvo argued twenty claims on direct appeal: (1) The trial court
abused its discretion in finding the State did not commit a discovery violation
when it failed to disclose a laboratory’s inability to test cigarette butts found in the
victim’s toilet and when it failed to disclose a letter requesting laboratory analysis
on the same evidence; (2) the trial court abused its discretion in ruling that the
State did not commit a discovery violation when, after the defense’s opening
statement, which asserted a third party killing theory, the State informed the
defense that the fingerprint expert had identified several previously unidentified
prints as belonging to the victim’s deceased boyfriend; (3) the trial court abused its
discretion in admitting evidence relating to the collateral burglary of another
residence; (4) the trial court erred in allowing the State, during the guilt-phase
closing argument, to argue a collateral burglary as similar fact evidence; (5) the
trial court abused its discretion by admitting Consalvo’s statement to the police
upon arrest for a collateral burglary that he had permission to be in the victim’s
residence; (6) the trial court abused its discretion by admitting certain out-of-court
statements relating to a prior incident between Consalvo and the victim regarding
an alleged theft; (7) the trial court abused its discretion in allowing a witness to
testify to statements made by Consalvo in a telephone conversation with his
mother, who then related them to the witness; (8) the trial court erred by allowing
the State, during its guilt-phase closing argument, to rebut a suicide defense which
the State believed was raised by the defense’s case; (9) the trial court erred in
instructing the jury that proof of unexplained possession of recently stolen property
by means of burglary may justify a conviction for burglary; (10) constructive
amendment of an indictment by instruction and argument on felony murder when
the grand jury only charges premeditated murder violates article I, section 15(a) of
the Florida Constitution and the Fifth Amendment; (11) Consalvo’s right to due
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denied certiorari on May 4, 1998. See Consalvo v. Florida, 523 U.S. 1109
(1998). On March 7, 2001, Consalvo filed his amended 3.850 motion.2 On
process was violated and he was denied effective assistance of counsel when the
trial court instructed the jury on, and allowed the prosecution to argue, a firstdegree felony murder theory when the indictment charged only premeditated firstdegree murder; (12) the trial court abused its discretion in admitting the victimimpact testimony of the victim’s brother, and the prosecutor used victim-impact
evidence in an improper manner; (13) the trial court abused its discretion in
denying Consalvo’s specially requested penalty-phase jury instructions which
specifically defined certain nonstatutory mitigating circumstances that Consalvo
believed were applicable in his case; (14) the trial court’s sentencing order, which
relied on testimony and deposition statements not presented in open court, violated
Consalvo’s due process rights; (15) the trial court erred in failing to consider and
find certain nonstatutory mitigating circumstances, and the court applied an
improper standard in evaluating the “turbulent family background” mitigating
circumstance; (16) the trial court erred in finding the “avoid arrest” aggravating
circumstance; (17) the statute delineating the “felony murder” aggravator is
unconstitutional; (18) the statute authorizing the introduction of victim-impact
evidence is unconstitutional; (19) death by electrocution is cruel and unusual
punishment; and (20) the death penalty is not proportionally warranted in this case.
Consalvo, 697 So. 2d at 811 n.3. With the exception of its conclusions that the
prosecutor’s mention of the similarities between the murder and a subsequent
burglary during closing argument, that jury instructions that proof of the
unexplained possession of property recently stolen justified a burglary conviction,
and that the trial court’s quoting of two statements never presented in open court in
its sentencing order all constituted harmless error, this Court found no error and
affirmed the death sentences.
2. The motion was Consalvo’s second amended motion, but constituted his
first motion for postconviction relief. The claims in Consalvo’s amended 3.850
motion were: (I) newly discovered evidence, the recanted testimony of Mark
DaCosta; (II) newly discovered evidence, the recanted testimony of William
Palmer; (III) the State failed to disclose exculpatory evidence that Assistant State
Attorney (ASA) Brian Cavanagh had briefed Mark DaCosta on the particulars of
the investigation of Consalvo’s case and that DaCosta had in turn briefed William
Palmer; (IV) the State deliberately used misleading testimony in the form of
DaCosta’s and Palmer’s testimony during Consalvo’s original trial proceedings;
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March 7, 2002, after a Huff3 hearing, the trial court granted an evidentiary
hearing on claims I, II, III, and IV, and summarily denied claims V-XV. On
February 19, 2004, the trial court entered a final order denying Consalvo’s
amended motion for postconviction relief. Consalvo appeals the trial court’s
summary denial of claims V-XV4 and also appeals the trial court’s rejection
of claims I-IV after the evidentiary hearing.
(V) the State withheld material and exculpatory evidence in the form of fiber
evidence, cigarette butts, fingerprints, and a section of a knife blade; (VI) the trial
court failed to determine whether Consalvo knowingly, intelligently, and
voluntarily waived his right to testify at the guilt phase of his trial; (VII) the trial
court failed to determine whether Consalvo knowingly, intelligently, and
voluntarily waived his right to testify at the penalty phase of his trial; (VIII) the
trial court failed to determine whether Consalvo knowingly, intelligently, and
voluntarily waived his right to testify at both the guilt phase and the penalty phase
of his trial; (IX) the trial court failed to require comparative evidence on
proportionality, thereby violating Equal Protection; (X) new mitigation evidence
has arisen since trial; (XI) the trial court permitted undue prejudice by failing to
control the antics at trial of the victim’s brother, a prominent Watergate
prosecuting attorney; (XII) Consalvo’s fundamental right to trial was threatened
and there was vindictiveness in his sentencing; (XIII) Florida’s death penalty law
is unconstitutional on its face and in effect; (XIV) Florida’s sentencing law is
unconstitutional because it fails to properly narrow the class of persons eligible for
the death penalty and because Consalvo’s death sentence is predicated on an
automatic aggravator (felony murder/murder was committed in the course of a
burglary); and (XV) Florida’s sentencing law is unconstitutional because victim
impact evidence is necessarily discriminatory.
3. Huff v. State, 622 So. 2d 982 (Fla. 1993).
4. We find no error in the trial court’s summary resolution of claims V
through XV. Claims V through XV were either insufficiently pled, procedurally
barred because they could have been or were raised on direct appeal, or meritless
on their face. Claim V was insufficiently pled and was raised and resolved on
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NEWLY DISCOVERED EVIDENCE
The claims in Consalvo’s amended 3.850 motion upon which the trial court
conducted an evidentiary hearing included: (I) a claim of newly discovered
evidence based upon the recanted testimony of Mark DaCosta; (II) a claim of
newly discovered evidence based upon the recanted testimony of William Palmer;
(III) a claim that the State failed to disclose exculpatory evidence that Assistant
State Attorney (ASA) Brian Cavanagh had improperly briefed DaCosta on the
particulars of the investigation of Consalvo’s case and that DaCosta had in turn
passed this information on to Palmer; and (IV) a claim that the State deliberately
used false and misleading evidence in the form of DaCosta’s and Palmer’s
testimony during Consalvo’s original trial proceedings.
At the evidentiary hearing on his claims that Palmer and DaCosta had
recanted their incriminating trial testimony, Consalvo presented the testimony of
DaCosta, Palmer, and ASA Ken Farnsworth. The State presented State Attorney
Secretary Lisa Gardner, ASA Brian Cavanagh, Detective Frank Ilarraza, and
Florida Department of Law Enforcement (FDLE) Special Agent Audrey Jones.
direct appeal. Claims VI-VIII, X, XI, and XIII-XV could have been properly
raised on direct appeal. See Hall v. State, 742 So. 2d 225, 226 (Fla. 1999) (“Issues
that could have been raised on direct appeal but were not are noncognizable claims
through collateral attack.”). Claim XII was insufficiently pled and could have been
raised on direct appeal. Claim IX was actually reviewed by this Court on direct
appeal. See Consalvo, 697 So. 2d at 820 (“[W]e find that Consalvo’s death
sentence is not disproportionate to other cases.”).
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After conducting an evidentiary hearing, the trial court found that the recantations
were not credible and that the claims based on the truth and credibility of the
recantations should be denied.
Consalvo first argues that the trial court erred in rejecting claims I and II by
concluding after an evidentiary hearing that the recanted testimony of witnesses
DaCosta and Palmer was not credible. He argues that if Palmer’s testimony were
excised from the trial, the result of both the guilt phase and penalty phase of
Consalvo’s trial would have been different.5
In our opinion on direct appeal, this Court described Palmer’s trial testimony
as follows: “While incarcerated in the Broward County Jail, Consalvo made
inculpatory statements to a fellow inmate named William Palmer. Consalvo told
Palmer that he killed Pezza after she caught him burglarizing her apartment and
said she would call the police. When she started to yell for help, Consalvo stabbed
her.” Consalvo, 697 So. 2d at 810. This Court also referred to Palmer’s testimony
in reviewing and upholding the “avoid arrest” aggravator:
In this case, a witness testified regarding a conversation he had
with appellant while in jail:
[Consalvo] went over there one day, and she didn’t
answer the door, but he knew she was home. He figured
she was passed out. So he broke into the house.
5. While Palmer testified at the grand jury and during Consalvo’s trial,
DaCosta only testified at the grand jury.
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While he was in there, she woke up and started
yelling she was going to call the cops and get out of her
house and this and that. And she reached to grab the
phone, and he grabbed her and tried to pull, you know,
tried to stop her from calling the cops; and she started
screaming, so he said he stuck her. Then she really
started screaming, so he stuck her a couple more times.
Id. at 819.
DaCosta testified at the evidentiary hearing that ASA Cavanagh gave him all
the information he knew about the Consalvo case when he met with ASA
Cavanagh at the State Attorney’s office while he was being held at the Broward
County Jail. He stated that during this meeting, ASA Cavanagh said there was an
important murder case for which he needed a conviction, showed DaCosta crime
scene photos, and said that if DaCosta would help the State by soliciting another
jail inmate to testify, he would get a guideline sentence in his own case “no matter
what happened in [DaCosta’s] case.” DaCosta was later given a guideline sentence
in his case but was also declared a habitual offender. DaCosta testified that after
meeting with ASA Cavanagh, he contacted other law enforcement authorities to
say he had information on a murder, and he gave a statement to Broward County
Sheriff’s deputies. DaCosta stated he also provided details of the case to Palmer,
who subsequently testified at trial. In August 2000, DaCosta met with Consalvo’s
investigator and broke down and told him he had lied in testifying and
incriminating Consalvo. He then wrote the Governor twice, again asserting that he
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had lied concerning the Consalvo case. He also signed an affidavit stating that he
had lied, although he did not mention ASA Cavanagh in the affidavit.
During the postconviction hearing, when asked about numerous facts that he
knew about the case, DaCosta stated he did not hear those facts from Consalvo,
and he denied overhearing any of Consalvo’s phone conversations. He stated that
he only had conversations with Consalvo “about his girlfriend, things in general.”
When asked about more specific facts that he had described previously, DaCosta’s
responses were consistently, “I don’t remember” or “I don’t know,” or “I made it
up.” When asked if the affidavit he signed in Consalvo’s attorney’s presence was
true, he replied, “I don’t know.” DaCosta admitted that he has been labeled a
snitch, has a psychiatric history including hallucinations, schizophrenia, and brain
dysfunction, and had taken many psychotropic drugs.
Palmer testified that he was extremely reluctant to testify at the
postconviction evidentiary hearing. Prior to Consalvo’s trial, Palmer had been
facing a habitual offender sentence for battery on a law enforcement officer and
possession of cocaine, but because of his assistance in the Consalvo matter, he
received a misdemeanor probationary sentence. At the time of Consalvo’s trial,
Palmer was no longer facing any charges.
Palmer learned from an investigator for the defense seven years after his trial
testimony, while an inmate at a prison mental health institute, that Consalvo had
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been sentenced to death. The defense investigator told Palmer that his testimony
put Consalvo on death row. Palmer told the investigator that his testimony had
been untrue. He stated he did not want to be responsible for anyone being on death
row and did not want to be labeled a snitch. He stated, “I don’t think he should be
on death row, though, and if any statement that he told me he stabbed her put him
there, then I’m wrong. I don’t think he ever told me he stabbed her.” Finally, he
admitted that he would lie to avoid being labeled a snitch. When he met with
Consalvo’s postconviction attorney, he signed an affidavit that his testimony at
trial was derived from conversations with DaCosta, not Consalvo. However, he
testified that he still believed that Consalvo committed the murder.
He admitted during his testimony at the evidentiary hearing that Consalvo,
DaCosta, and he would talk while in jail together, and Palmer admitted having
conversations with Consalvo about his case. He stated that Consalvo told him a lot
about the victim, that Consalvo had said he broke into the victim’s house and stole
checks and car keys, and that Consalvo was going into the victim’s house to get
drugs. He also admitted that Consalvo told him the police had found one of the
victim’s checks in his pocket, and that Consalvo told him the police were saying he
stabbed the victim “a whole bunch of times.” Despite his recollection of this
information coming from Consalvo, he could not remember Consalvo telling him
about the actual murder.
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Since testifying at the Consalvo trial, Palmer has been in a mental health
facility. He has a bad memory, he takes psychotropic drugs that affect his
memory, and his ears ring. He also hears voices and considers himself to be crazy
“in other people’s eyes.” Voices warned him not to get involved in any aspect of
Consalvo’s trial. The day he testified, he smoked a marijuana joint and had three
beers during the lunch break.
ASA Cavanagh testified that he had been an Assistant State Attorney for
over twenty-five years. He specifically denied ever meeting with DaCosta before a
brief meeting conducted prior to DaCosta’s grand jury testimony. In fact, he
asserted that he was not the assigned prosecutor on the Consalvo case and was
actually covering the grand jury hearing for the assigned prosecutor due to
scheduling conflicts. He also testified that he never met with DaCosta in jail or at
the State Attorney’s office. He first met DaCosta and Palmer the day of the grand
jury, and he stated that while DaCosta indicated he wanted to speak to him about
the case, ASA Cavanagh avoided the issue. His only preparation for their
testimony was telling both men to tell the truth, and he never promised either of
them anything for their testimony or cooperation.
Following the evidentiary hearing, the trial court denied postconviction
relief, rejecting the recanted testimony of DaCosta and Palmer as “not credible”
and finding Palmer’s testimony at the evidentiary hearing to be “bizarre and totally
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unworthy of belief.” The trial court stated, “It is clear to the Court that Palmer’s
testimony at a new trial would not render probable a different verdict or different
sentence.” The trial court also rejected Consalvo’s claims of improper conduct by
the State and found that “there is no credible evidence that either DaCosta or
Palmer had been briefed by the State as to any information regarding the Pezza
murder investigation against Robert Consalvo and, therefore, the State did not fail
to disclose exculpatory evidence.”
In Jones v. State, 591 So. 2d 911 (Fla. 1991), this Court redefined the test for
the granting of a new trial based upon newly discovered evidence from the prior
strict requirement that the new evidence must “ ‘conclusively’ affect the verdict” to
requiring a showing that the new “evidence would ‘probably’ affect the verdict.”
Spaziano v. State, 660 So. 2d 1363, 1365 (Fla. 1995) (citing Jones, 591 So. 2d at
915). In Armstrong v. State, 642 So. 2d 730 (Fla. 1994), this Court specified the
standard for granting a new trial based upon a claim of newly discovered evidence
that a witness called on behalf of the prosecution at trial has recanted his or her
testimony:
Recantation by a witness called on behalf of the prosecution
does not necessarily entitle a defendant to a new trial. Brown v. State,
381 So. 2d 690 (Fla. 1980), cert. denied, 449 U.S. 1118, 101 S. Ct.
931, 66 L. Ed. 2d 847 (1981); Bell v. State, 90 So. 2d 704 (Fla. 1956).
In determining whether a new trial is warranted due to recantation of a
witness’s testimony, a trial judge is to examine all the circumstances
of the case, including the testimony of the witnesses submitted on the
motion for the new trial. [Bell, 90 So. 2d at 705]. “Moreover,
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recanting testimony is exceedingly unreliable, and it is the duty of the
court to deny a new trial where it is not satisfied that such testimony is
true. Especially is this true where the recantation involves a
confession of perjury.” [Id.] (quoting Henderson v. State, 135 Fla.
548, 561, 185 So. 625, 630 (1938) (Brown, J., concurring specially)).
Only when it appears that, on a new trial, the witness’s testimony will
change to such an extent as to render probable a different verdict will
a new trial be granted. Id.
Id. at 735. We have also held that “[a]bsent an abuse of discretion, a trial court’s
decision on a motion based on newly discovered evidence [including a witness’s
newly recanted testimony] will not be overturned on appeal.” Mills v. State, 786
So. 2d 547, 549 (Fla. 2001) (citing Woods v. State, 733 So. 2d 980 (Fla. 1999);
State v. Spaziano, 692 So. 2d 174 (Fla. 1997); and Parker v. State, 641 So. 2d 369
(Fla. 1994), and further holding that the trial court did not abuse its discretion in
finding that a witness’s new version of events would not have probably produced
acquittal). We find no abuse of discretion by the trial court in rejecting as not
credible the alleged newly discovered evidence presented by Consalvo and in
determining that Consalvo had not established an entitlement to a new trial under
the Jones standard.
We rejected a similar claim of error in Sochor v. State, 883 So. 2d 766 (Fla.
2004), where the defendant claimed that the prosecutor offered a witness immunity
in exchange for his testimony. Id. at 785. He also claimed that the prosecutor told
the witness not to mention important facts in his testimony. Id. at 785-86. The
prosecutor testified at the evidentiary hearing that he never offered the witness
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immunity and that he never told the witness to leave out facts in his testimony. Id.
“The circuit court found [the witness]’s evidentiary hearing testimony to be
‘unreliable and not credible.’ On the other hand, it found [the prosecutor]’s
testimony to be ‘candid, trustworthy, and credible’ ” and that the defendant was
simply arguing on appeal “that the circuit court’s finding of fact was incorrect.”
Id. at 785. This Court deferred to the circuit court’s resolution of the issue because
its finding was “supported by competent, substantial evidence.” Id. (citing Kight
v. Dugger, 574 So. 2d 1066, 1073 (Fla. 1990)). In fact, the only evidence for the
allegation that the prosecutor had told the witness to leave out facts in his trial
testimony was the witness’s evidentiary hearing testimony, which directly
contradicted his trial testimony and the prosecutor’s evidentiary hearing testimony.
Id. at 786 (“We cannot say that the circuit court’s decision to discredit [the
witness]’s evidentiary hearing testimony was unreasonable or unsupported.”).
Similarly, in the present case, Consalvo’s claim is that the trial court erred in
not finding DaCosta’s and Palmer’s recanted testimony credible and instead
finding the testimony of the State’s witness, ASA Cavanagh, to be credible and
reliable. There is competent, substantial evidence to support the trial court’s
resolution of this matter, including the trial court’s assessment of both DaCosta’s
and Palmer’s history of lying and psychiatric deficiencies and their inconsistencies
and lack of memory when testifying at the evidentiary hearing, as well as the
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contrary testimony of ASA Cavanagh. See Spaziano, 692 So. 2d at 175 (“This
Court, as an appellate body, has no authority to substitute its view of the facts for
that of the trial judge when competent evidence exists to support the trial judge’s
conclusion.”); Kight, 574 So. 2d at 1073 (“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.”).
Consalvo also argues that if Palmer’s recanted testimony cannot be believed,
it would be difficult to conclude that Palmer’s trial testimony is believable.
However, we find that to be an improper hindsight analysis, based exclusively
upon the current testimony of Palmer that the trial court has rejected as not
credible. In addition, of course, there is other credible evidence to support
Consalvo’s conviction, on which the trial court was entitled to rely in rejecting the
Jones claim. This evidence was listed in Consalvo’s direct appeal and includes the
victim suspecting Consalvo of taking her keys and money; the victim changing the
locks at her apartment; Consalvo using the victim’s ATM card and driving a car
similar to the victim’s; Consalvo’s possessing checkbooks belonging to the victim;
Consalvo’s mother, who lived next door to the victim, saying that Consalvo had
told her “that he was ‘involved in a murder,’ ” and that when she told Consalvo
“the police were next door, he replied, ‘Oh, shit;’ ” Consalvo stating, “[Y]ou are
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not going to pin the stabbing on me” to a detective who was not yet aware the
victim had been stabbed; and the police finding “a bloody towel in a dresser in
Consalvo’s bedroom” that subsequent DNA testing matched to the victim’s blood.
Consalvo, 697 So. 2d at 809-10. When all of this evidence is considered together
with the trial court’s determination of the lack of credibility of DaCosta’s and
Palmer’s postconviction recantations, it becomes apparent that the trial court did
not err in rejecting Consalvo’s claims.
Because we affirm the trial court’s rejection of DaCosta’s and Palmer’s
recanted testimony, we must also reject Consalvo’s argument that the trial court
erred in not considering Palmer’s recanted testimony to be newly discovered
evidence with regards to the “avoid arrest” aggravator sufficient to merit a new
penalty phase proceeding.
Claims III and IV
For the same reasons we reject Consalvo’s claims of error in the trial court’s
resolution of his Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), claims. In view of the trial court’s findings as to the
credibility of Palmer and DaCosta and the trial court’s acceptance of the credibility
of the State’s evidence, we find that there existed no exculpatory evidence
regarding this matter that the State should have turned over to the defense, and
therefore Consalvo’s claim under Brady is meritless. We also conclude that
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Consalvo’s claim that the State committed a Giglio violation is meritless because
the trial court did not err in concluding that no misleading testimony in fact
existed.
CONCLUSION
In light of the above analysis, we affirm the trial court’s denial of all of the
claims set out in Consalvo’s postconviction motion.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, 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 Broward County,
Howard M. Zeidwig, Judge - Case No. 91-19140-CF10A
Ira W. Still, III, Coral Springs, Florida
for Appellant
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Leslie T.
Campbell, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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