STATE OF FLORIDA

v.

EMMANUEL BUTLER

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

Appellant,

v. Case No. 5D17-1823

EMMANUEL BUTLER,

Appellee.

________________________________/

Opinion filed January⁴, 2019

Appeal from the Circuit Court for Volusia County, Raul A. Zambrano, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.

Philip Massa, West Palm Beach, for Appellee.

EDWARDS, J.

Emmanuel Butler was found guilty by a jury of first-degree murder. The State appeals the trial court’s order giving Butler a new trial based on the trial court’s finding that the State’s failure to disclose certain information about a witness, Brodie Hamilton, hindered Butler’s cross-examination regarding that witness’s credibility. We agree that

5 citations omitted). “In order to demonstrate 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.” Id. (citing Strickler v. Greene, 527 U.S. 263, 281– 82 (1999)). It can certainly be argued that the payment of three hundred dollars to Hamilton constituted evidence favorable to Butler’s defense, and there is no doubt that it was not provided to the defense in a timely fashion, prior to trial. Thus, the only issues we need to focus on is whether the evidence was material and whether Butler was prejudiced by not receiving that information prior to trial.

“To meet the materiality prong of Brady, the defendant must demonstrate ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Franqui v. State, 59 So. 3d 82, 101 (Fla. 2011) (quoting Strickler, 527 U.S. at 280). “The materiality inquiry is not satisfied by simply discounting the inculpatory evidence in light of the undisclosed evidence and determining if the remaining evidence is sufficient.” Id. at 102. “Rather, 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). Butler cannot identify how the previously undisclosed information would have been used to further undermine Hamilton’s credibility. Nor can we conclude that there is reason to believe that Hamilton’s credibility before the jury would have been diminished further by information that Hamilton had received three hundred dollars essentially for getting Butler’s confession on tape. That previously undisclosed evidence was only cumulative impeachment evidence which was unlikely to change the jury’s view

6 of Hamilton’s credibility. See Rivera v. State, 187 So. 3d 822, 839 (Fla. 2015) (holding that where a witness’s motivation for testifying—seeking reduced jail time—was thoroughly explored and his credibility was impeached by evidence of multiple felony convictions, no new trial was warranted because the undisclosed information was largely cumulative of the disclosed and utilized impeachment evidence). Hamilton’s contribution to the case was not his testimony or credibility; rather, it was obtaining Butler’s confession in a recording that was played for the jury. Even if Hamilton’s credibility was somehow further diminished by his receipt of three hundred dollars, Butler has not shown how that would impact the jury’s consideration of Butler’s recorded confessions to Hamilton and to his girlfriend. The trial court’s conclusion that this information “might have affected the defense’s strategy” is insufficient. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Nixon v. State, 932 So. 2d 1009, 1019 (Fla. 2006) (quoting United States v. Agurs, 427 U.S. 97, 109–10 (1976)). There is nothing in the record to suggest or support a conclusion that the verdict in Butler’s case would have been different had he known earlier of the three-hundred-dollar payment made to Hamilton. Accordingly, we find that the trial court erred in granting Butler a new trial based on an alleged Brady violation. We reverse and remand for entry of judgment consistent with the jury’s verdict and this opinion.

REVERSED AND REMANDED.

WALLIS and HARRIS, JJ., concur.