“Known-but-Unexamined” Evidence and the Due-Diligence Bar in Successive Post-Conviction Litigation
A Commentary on Toney Deron Davis v. State of Florida, Supreme Court of Florida, No. SC2024-1128 (17 July 2025)

1. Introduction

The Supreme Court of Florida’s per curiam decision in Toney Deron Davis v. State of Florida addresses the intersection of (1) the State’s constitutional duty under Brady v. Maryland to disclose exculpatory evidence and (2) Florida’s stringent due-diligence and timeliness requirements for successive post-conviction motions under Rule 3.851. Davis—sentenced to death for the 1992 murder of two-year-old Caleasha Cunningham—sought relief almost three decades after trial, arguing that microscopic autopsy slides, newly interpreted by a defense expert, undermined the State’s cause-of-death theory and had been Brady-suppressed. The circuit court summarily denied his fourth successive motion; the Supreme Court affirmed.

The judgment crystallises a practical rule: evidence that was disclosed and available to the defence, but simply not examined until many years later, is neither “suppressed” for Brady purposes nor “newly discovered” within the meaning of Jones v. State. It also reinforces that successive post-conviction claims must satisfy Rule 3.851’s narrow exceptions or face an automatic procedural bar.

2. Summary of the Judgment

• Procedural posture – Appeal from summary denial of Davis’s fourth successive Rule 3.851 motion. Standard: de novo.
• Claims raised – (a) Brady violation; (b) newly discovered evidence. Both centred on 1992 autopsy slides that, according to a 2022 supplemental report by defence pathologist Dr Jonathan Arden, showed the child had pneumonia pre-admission, suggesting her collapse might have been hypoxic rather than traumatic.
• Holding – Both claims are untimely and, in the alternative, meritless:
  • The slides and the medical examiner’s note of pneumonia were disclosed in the original autopsy report; defence could have examined them with due diligence.
  • No “suppression” existed because the defence was aware of the slides’ existence and content.
  • A new expert opinion does not convert old, available evidence into new evidence.
  • Even if admissible, the revised pneumonia theory would not undermine the “overwhelming” evidence that Davis intentionally beat and sexually battered the victim.
• Disposition – Affirmance of summary denial.

3. Analysis

3.1 Precedents Cited and Their Influence

• Brady v. Maryland, 373 U.S. 83 (1963)
  Foundation for the duty to disclose exculpatory or impeachment evidence. The Court reiterated that suppression requires both concealment by the State and lack of reasonable availability to the defence.
• Jones v. State, 709 So. 2d 512 (Fla. 1998)
  Two-prong test for newly discovered evidence: (1) unknown and not discoverable with due diligence at trial; (2) probability of acquittal or life sentence on retrial. The Court found Davis failed both.
• Floyd v. State, 18 So. 3d 432 (Fla. 2009) & Tompkins v. State, 872 So. 2d 230 (Fla. 2003)
  Confirm that information known to the defence or obtainable on request is not “suppressed.” These cases supply the analytical backbone for rejecting Davis’s Brady claim.
• Stein v. State, 406 So. 3d 171 (Fla. 2024)
  Restates that successive motions beyond one year are barred unless the defendant fits Rule 3.851(d)(2)’s narrow exceptions. Cited to dispose of Davis’s untimeliness.
• Hutchinson v. State, 343 So. 3d 50 (Fla. 2022) & Truehill v. State, 358 So. 3d 1167 (Fla. 2022)
  Clarify “materiality” under Brady and emphasise its demanding nature, exceeded only by the Jones probability standard.
• Howell v. State, 145 So. 3d 774 (Fla. 2013)
  Reaffirms that merely retaining a new expert who offers a different view of known evidence does not satisfy newly discovered evidence requirements.

3.2 The Court’s Legal Reasoning

1. Timeliness & Due Diligence
   Rule 3.851’s one-year limit is relaxed only if the “facts on which the claim is predicated…could not have been discovered by the exercise of due diligence.” Because:
   • The autopsy report listed both the slides and a finding of pneumonia in 1992; and
   • Nothing prevented defence counsel from seeking an independent slide review,
   the Court deemed the motion untimely. Lack of tactical foresight is not “inability” to discover.
2. No Suppression under Brady
   Suppression turns on accessibility, not on whether the prosecution believed or emphasised the evidence. Here, the defence’s knowledge of the slides annihilated the suppression prong; the Court analogised to Floyd and Tompkins.
3. Materiality / Probable Outcome
   Even assuming pneumonia developed pre-admission, the State’s evidence of intentional trauma (bleeding, sexual injuries, blood on Davis’s clothes, inconsistent accounts) remained overwhelming. Therefore:
   • No “reasonable probability” of a different result (Brady);
   • Still less probability of acquittal or life sentence (Jones).
4. New Expert ≠ New Evidence
   Following Howell, the Court rejects the notion that a post-trial expert’s reinterpretation transmutes old, available data into new evidence. Allowing otherwise would perpetuate endless serial litigation in capital cases.

3.3 Potential Impact

The judgment delivers three immediate signals to Florida’s criminal bar:

1. Vigilance at Trial Stage – Defence teams must thoroughly inspect all disclosed materials and, where needed, commission independent analysis before or during trial. Later “re-takes” will seldom satisfy Brady or newly discovered evidence standards.
2. Constraining Successive Petitions – The decision is a roadmap for circuit courts to summarily dispose of “known-but-unexamined” evidence claims, thus conserving judicial resources in capital litigation.
3. Clarifying Evidentiary Boundaries – By equating physical accessibility with disclosure, the Court limits defendants’ ability to recast strategic omissions as constitutional violations.

4. Complex Concepts Simplified

Brady Violation

Occurs when the prosecution fails to hand over evidence that is favourable to the defendant, and the evidence is material—i.e., it would probably have changed the verdict. If the defence already knew or could have obtained the evidence, there is no suppression.

Newly Discovered Evidence (Jones Test)

Evidence must have been unknown and undiscoverable with reasonable diligence at trial, and must probably produce a different outcome on retrial.

Rule 3.851 Time-Limit

Florida’s rule governing post-conviction motions in capital cases. Claims filed more than one year after the judgment becomes final are barred unless a statutory exception (like truly new evidence) is met.

Summary Denial

When a post-conviction court rejects a motion without an evidentiary hearing because the record conclusively shows the claim is legally insufficient, procedurally barred, or refuted by the record.

Huff Hearing

A brief hearing (under Huff v. State) where the court decides whether any claim in a Rule 3.851 motion warrants an evidentiary hearing.

5. Conclusion

Davis v. State reinforces a strict, evidence-accessibility rule: if the defence knew about a piece of evidence and could have examined it, that evidence is neither suppressed for Brady purposes nor newly discovered later. The decision thus fortifies Florida’s temporal and due-diligence barriers against perpetual relitigation in capital cases. Defence counsel are reminded—and prosecutors are assured—that the courtroom is the arena for probing expert opinions and forensic materials; post-conviction is not a second chance to perform investigations that could have been done decades earlier. Consequently, the judgment is likely to guide future courts in summarily disposing of similar claims, streamlining the post-conviction process and underscoring the finality of criminal judgments when constitutional standards have been met.