Appellant and a companion, Taylor, drove to a wooded area of
Pinellas County on the night of December 13, 1984, to shoot a
handgun which appellant had recently obtained by burglarizing a
home. Appellant lived in neighboring Pasco County at his mother’s
home and was on probation following a recent prison term. Wildlife
Officer Margaret Park, patrolling the area in her vehicle, came upon
the two men and became suspicious. She left her vehicle with the
motor, lights, and flashers on, and took possession of appellant’s
weapon and driver’s license. Appellant pleaded with her not to turn

him in as having a weapon in his possession and being outside of
Pasco County would cause him to return to prison for violation of
probation. Officer Park refused the plea, opened the driver’s door to
her vehicle and picked up the radio microphone to call the sheriff’s
office. Appellant then grabbed the officer’s large flashlight and struck
her repeatedly on the head and shoulders, forcing her upper body into
the vehicle. Officer Park reported .I’m hit. over the radio and
screamed. Appellant continued the attack, and called for help from
Taylor, who joined in the assault. Officer Park managed to draw her
weapon, a .357 magnum, and fired a wild shot within the vehicle.
Simultaneously, she temporarily disabled Taylor by kicking him in the
groin. Appellant, who is a large man, wrestled the officer’s weapon
away and fired a fatal shot into the back of her head. The spent slug
exited her head in front and fell into a drinking cup inside the vehicle.
Blood stains, high velocity splatters, the location of the spent slug, and
the entry and exit wounds show that the victim’s upper body was
inside the vehicle with her face turned inward or downward at the
moment she was killed. Appellant and Taylor took back the seized
handgun and driver’s license, and fled with the officer’s weapon.
They returned to the Grossman home, where they told the story of the
killing, individually and collectively, to a friend who lived with the
Grossmans. The friend, Brian Hancock, and Taylor buried the two
weapons nearby. Appellant, who was covered with blood, attempted
unsuccessfully to burn his clothes and shoes which Taylor later
disposed of in a nearby lake. Approximately a week later appellant
and Taylor, individually and collectively, recounted the story of the
murder to another friend, Brian Allan. Approximately eleven days
after the murder, Hancock told his story to the police and appellant
and Taylor were arrested. Taylor, upon his arrest, recounted the story
of the murder to a policeman and, later, appellant told the story to a
jailmate, Charles Brewer. Appellant and Taylor were tried jointly
over appellant’s objection. At trial, the state introduced the testimony
of Hancock, Allan, and Brewer against appellant. The state also
introduced Taylor’s statement to the policeman against Taylor only.
In addition, the state introduced the charred shoes, the two weapons,
prints taken from the victim’s vehicle, testimony from a neighbor who
observed the attempted burning of the clothes, appellant’s efforts to
clean the Grossman van, and the changing of the van tires. Expert
testimony as to the cause of death and the significance of blood
splatter evidence was also introduced by the state. The jury was

During the penalty phase, defense counsel called four witnesses: (1) Myra
Grossman, Grossman’s mother; (2) Thomas Campbell, a correctional officer
overseeing Grossman; (3) Steven Martakas, Grossman’s friend from junior high
school; and (4) Carolyn Middleton, a social worker at the jail housing Grossman.
These witnesses testified that Grossman’s father was disabled and that Grossman
was often tasked from a very young age with taking care of him. Grossman
dropped out of junior high school, and his father died when Grossman was fifteen
years old. Grossman respected his parents and was not a violent person.
Grossman never exhibited behavioral problems while in jail, and he was very
nervous and scared about being executed. Following the penalty phase, the jury
unanimously recommended death, and the judge imposed a sentence of death.
Grossman, 525 So. 2d at 836.2 This Court affirmed Grossman’s conviction and
death sentence on direct appeal. Id. at 846.

On March 8, 1990, before Grossman filed any postconviction motions,
Governor Bob Martinez signed a death warrant setting the execution of Grossman
for the week of May 10, 1990. Grossman filed a petition for writ of habeas corpus
in this Court, and this Court granted a stay of execution to allow Grossman the
opportunity to seek postconviction relief. Grossman, 708 So. 2d at 250. Grossman
filed a motion to vacate his conviction and sentence under Florida Rule of Criminal
Procedure 3.850 in the trial court in August 1990 (.original postconviction
motion.) and simultaneously filed an amended habeas petition in this Court. Id.

In his original postconviction motion, Grossman made numerous claims, but
three claims are directly relevant to our determination that the present successive
motion includes claims that Grossman has previously raised. First, Grossman
argued in claim VI of his original postconviction motion that he was denied the
effective assistance of counsel during the penalty phase because counsel failed to
have Grossman examined by a competent mental health professional as required by
Ake v. Oklahoma, 470 U.S. 68 (1985). The original court-appointed mental health
expert for the defense was Dr. Sidney Merin. However, Dr. Merin did not testify

during Grossman’s penalty phase proceedings. After his evaluation of Grossman,
Dr. Merin advised defense counsel that .[his] findings would not be helpful to
[the] defense position in either the guilt or innocence phase or, if it is held, the
sentencing phase of Mr. Grossman’s trial.. In his original postconviction motion,
Grossman alleged that a new mental health expert, Dr. Brad Fisher, had evaluated
Grossman in March 1990 and had prepared a report that rebutted the contentions of
Dr. Merin.3 Dr. Fisher’s report indicated that testing did not reveal any signs of .a
current psychotic condition or of any major affective disorder.. However, Dr.
Fisher noted that his testing revealed .soft signs of organic impairment,. which
was supported by Grossman’s history of .chronic and extensive drug and alcohol
dependence,. and that .[f]urther testing would be required to determine the nature
and extent of this probable mental disability.. Grossman attached Dr. Fisher’s
report to his motion and was prepared to call Dr. Fisher to testify at an evidentiary
hearing.4 The trial court summarily denied this claim, and this Court affirmed that
denial. Grossman, 708 So. 2d at 252.

Second, Grossman claimed in claim V of his original postconviction motion
that counsel was ineffective during the penalty phase for failing to investigate,
develop, and present mitigating evidence. Grossman received an evidentiary
hearing on this claim. The only expert offered by the defense at the evidentiary
hearing in 1994 was Kevin Sullivan, a licensed clinical social worker. Sullivan
testified that Grossman was raised in a dysfunctional environment and that a
number of factors negatively impacted his development, including that Grossman
had been given inappropriate caretaking responsibilities from a young age; that his
family had relocated at a critical time in his development; and that he experienced
grief at the loss of his father and grandfather.
The trial court denied relief on this claim:
The Defendant has failed to make the required showing of
either deficient performance or sufficient prejudice [under Strickland
v. Washington, 466 U.S. 668 (1984)] to support his ineffectiveness
claim.
The Court has evaluated the conduct of the Defendant’s counsel
from counsel’s perspective at the time of the trial. Defendant
introduced thirty-three affidavits that were represented as possible
mitigation witnesses that were available at the time of trial but were
not used by the defense. Several of the possible witnesses represented
by the affidavits were known to the defense, and the defense had
determined not to use them.

Defendant near the time that he committed the crime; whereas, many
of the potential witnesses that were represented by the affidavits had
not seen the Defendant in years.
The Court finds that Mr. McCoun did a competent, effective
job of representing the Defendant at all phases of the trial. Even if
counsel were deemed ineffective for the reasons stated by the
Defendant, such alleged ineffectiveness did not come close to being
so prejudicial to the Defendant that it affected the outcome of the
case. The facts of this case showed the Defendant’s conduct to be so
egregious that proof of mitigating circumstances was extremely
difficult.
This Court affirmed the trial court’s denial of this claim. Grossman, 708 So. 2d at
251.
Third, also pertinent to the issues that he now raises, Grossman argued in his
original postconviction motion that inmate Charles Brewer, who testified for the
State, was acting as a State agent when he procured incriminating information from
Grossman, and that the State failed to disclose this fact in violation of Brady v.
Maryland, 373 U.S. 83 (1963). After an evidentiary hearing, the trial court found:
Defendant states that Charles Brewer, a trusty at the Pinellas
County Jail while Defendant was being held there awaiting trial, was a
state agent, and the State withheld this fact along with an agreement
that Mr. Brewer had reached with prosecutors regarding charges that
were pending against Mr. Brewer. Mr. Brewer testified that he had
his brother contact law enforcement after he heard Defendant
discussing the case. Mr. Brewer said that he talked to the homicide
detectives only one time and that was when they took his taped
statement.

questions for Mr. Brewer to ask the Defendant or ask Mr. Brewer to
be an agent for the State.
The State Attorney, Bernie McCabe, testified that he
interviewed Mr. Brewer at the State Attorney’s Office prior to the trial
and that he emphasized to Mr. Brewer that there were no deals in
exchange for Mr. Brewer’s testimony. Defendant’s claim that Mr.
Brewer was a state agent at the time that he discussed the Peggy Park
murder with Defendant and that the State struck a deal with Mr.
Brewer in exchange for his testimony is without merit.
The trial court also denied Grossman’s claim that the State violated Giglio v.
United States, 405 U.S. 150 (1972), by presenting the false testimony of Brewer:
Defendant claims that Mr. Brewer provided false testimony
about his prior record and about statements that Mr. Brewer attributed
to Defendant. It does not appear from the evidence that the State was
aware of the alleged falsity of Mr. Brewer’s testimony about his prior
record. Defendant states that Mr. Brewer’s testimony concerning
statements allegedly made by the Defendant was false; specifically,
that the Defendant shot the victim because she was a woman and that
if he had shot her in the back of the head it would have blown her face
away. State’s Exhibit Number Two is a transcript of Mr. Brewer’s
taped interview with Detective Rhodes. Mr. Brewer did not dispute
the accuracy of the transcript of the taped interview, and stated that he
did not remember at the time of the Rule 3.850 hearing what he had
said during the taped interview. Defendant has failed to show how the
alleged falsity of this aspect of Mr. Brewer’s testimony affected the
conviction or the sentence imposed in this case; therefore, this claim
has no merit.
On appeal, this Court found that competent, substantial evidence supported the trial
court’s finding as to the Brady claim concerning Brewer, but did not specifically
address the Giglio claim. Grossman, 708 So. 2d at 252.

counsel during the penalty phase. Grossman, 359 F. Supp. 2d at 1245-47.5 The
federal district court denied the habeas petition, id., and the Eleventh Circuit
affirmed. Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006).
Subsequently, Grossman filed his first and second successive motions for
postconviction relief, the summary denial of which was affirmed by this Court.
See Grossman, 932 So. 2d 192 (affirming summary denial of Grossman’s first
successive postconviction motion); Grossman, 5 So. 3d 668 (affirming summary
denial of Grossman’s second successive postconviction motion). None of these
successive motions or appeals raised any issues related specifically to either the
guilt or penalty phase of Grossman’s trial.

ANALYSIS
In the present appeal, Grossman argues that the trial court erred in
summarily denying his claims that (1) he was denied his constitutional rights
because he was not granted an evidentiary hearing on his claim in his original
postconviction motion that trial counsel provided ineffective assistance in the
penalty phase of Grossman’s trial by failing to have him examined by a competent
mental health professional and newly discovered evidence now supports his
ineffective assistance claim; (2) Florida’s death penalty statute is arbitrary and
capricious in violation of his constitutional rights because the trial court and jury
did not hear all of his available mitigating evidence, the State violated Giglio by
presenting the false testimony of witness Charles Brewer, and he was denied the
opportunity to present new evidence pertinent to his claim for clemency; and (3)
proceeding with the execution of Grossman will violate the Eighth Amendment of
the United States Constitution because he may be incompetent at the time of the
execution. We now address and reject all three claims.

examined by a competent mental health professional as required by Ake v.
Oklahoma. He contended that the sentencing court therefore did not hear all
possible evidence regarding mitigating circumstances before sentencing and
attached the report of Dr. Fisher to his motion. Grossman further alleged that he
would now call Dr. Michael Maher, who recently reviewed the raw data generated
by testing done by Dr. Fisher and Dr. Dee. He alleges that Dr. Maher, a new
expert, would .testify about Mr. Grossman’s life-long intellectual neurological
deficits[,] . . . how it affected Grossman’s state of mind at the time of the crime,.
and about Grossman’s dependency on alcohol and drugs, which manifested at an
early age. Dr. Maher would .also conduct a clinical evaluation of his own to
establish statutory or non-statutory mitigation.. The postconviction court
summarily denied this claim as procedurally barred and untimely.
As we explained in Tompkins v. State, 994 So. 2d 1072, 1080-81 (Fla.
2008):

Florida Rule of Criminal Procedure 3.851 governs the filing of
postconviction motions in capital cases. Rule 3.851(d)(1) generally
prohibits the filing of a postconviction motion more than one year
after the judgment and sentence become final. An exception permits
filing beyond this deadline if the movant alleges that .the facts on
which the claim is predicated were unknown to the movant or the
movant’s attorney and could not have been ascertained by the exercise
of due diligence.. Fla. R. Crim. P. 3.851(d)(2)(A). . . . Rule 3.851
also provides certain pleading requirements for initial and successive
postconviction motions. Fla. R. Crim. P. 3.851(e)(1)-(2). For
example, the motion must state the nature of the relief sought, Fla. R.
Crim. P. 3.851(e)(1)(C), and must include .a detailed allegation of the

factual basis for any claim for which an evidentiary hearing is
sought.. Fla. R. Crim. P. 3.851(e)(1)(D).
Rule 3.851(f)(5)(B) permits the denial of a successive
postconviction motion without an evidentiary hearing .[i]f the motion,
files, and records in the case conclusively show that the movant is
entitled to no relief.. A postconviction court’s decision regarding
whether to grant a rule 3.851 evidentiary hearing depends on the
written materials before the court; therefore, for all intents and
purposes, its ruling constitutes a pure question of law and is subject to
de novo review. See, e.g., Rose v. State, 985 So. 2d 500, 505 (Fla.
2008). In reviewing a trial court’s summary denial of postconviction
relief, this Court must accept the defendant’s allegations as true to the
extent that they are not conclusively refuted by the record. See
Rolling v. State, 944 So. 2d 176, 179 (Fla. 2006).
Because Grossman’s claim was summarily denied, our review is de novo. Walton
v. State, 3 So. 3d 1000, 1005 (Fla. 2009).

We conclude that summary denial of this claim was proper for two reasons.
First, as the trial court concluded, this claim is procedurally barred. Grossman’s
contention that his constitutional rights were violated when the original
postconviction court summarily denied his ineffective assistance claim is merely
an impermissible attempt to resurrect that ineffective assistance claim, the
summary denial of which was affirmed by this Court. See Grossman, 708 So. 2d
at 252. This claim was also raised in Grossman’s federal habeas petition, which
was denied by the federal district court. See Grossman, 359 F. Supp. 2d at 1267-
70 (.Grossman has failed to demonstrate any error in the denial of his claim that
his attorneys were ineffective in the investigation and presentation of mitigating
evidence..). In fact, Grossman was permitted an evidentiary hearing on his

ineffective assistance of counsel claim that his counsel was deficient in not
offering mental health testimony—claim V in his original postconviction motion.
Second, we agree with the trial court’s conclusion that Grossman’s claim
does not present newly discovered evidence and is therefore untimely. To obtain a
new trial based on newly discovered evidence, a defendant must meet two
requirements: First, the evidence must not have been known by the trial court, the
party, or counsel at the time of trial, and it must appear that the defendant or
defense counsel could not have known of it by the use of diligence. Second, the
newly discovered evidence must be of such nature that it would probably produce
an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).

We reject Grossman’s claim on the first prong of Jones and therefore need
not reach the second prong. Grossman attempts to argue that the proposed
testimony of his new expert, Dr. Maher, concerning nonstatutory mental
mitigation, is newly discovered evidence in light of the decision of the United
States Supreme Court in Porter v. McCollum, 130 S. Ct. 447 (2009), because
.[p]rior to Porter, Florida Courts did not consider non-statutory mental mitigation
as mitigation.. We reject this claim. Porter did not grant Florida courts the
authority to consider this type of mitigation, but rather recognized that Florida
courts already do so: .Under Florida law, mental health evidence that does not rise
to the level of establishing a statutory mitigating circumstance may nonetheless be

We turn next to Grossman’s claim that the Florida death penalty statute is
arbitrary and capricious as applied to him, in violation of Furman v. Georgia, 408
U.S. 238 (1972), because (1) the court and jury did not hear all available mitigating
evidence at the penalty phase; (2) the State violated Giglio by presenting the false
testimony of witness Charles Brewer; and (3) Grossman has not had the
opportunity to present newly discovered evidence in clemency proceedings. In the
first of these three claims, Grossman merely reasserts the same allegations we
rejected above as procedurally barred—that the trial court and jury were not able to
consider all possible mitigating evidence at the penalty phase. Therefore, we do
not further address this subclaim.

due to prosecutorial misconduct resulting from a Giglio violation.6 See Johnson v.
State, 35 Fla. L. Weekly S43 (Fla. Jan. 14, 2010).
We conclude that summary denial of this claim was proper. Johnson is
distinguishable and applied well-established precedent to the unique facts of that
case. There, a successive rule 3.851 motion presented newly discovered evidence
that the State committed a Giglio violation by knowingly presenting false
testimony:
Specifically, we conclude that newly disclosed evidence shows
the following. First, after Johnson was arrested and counsel was
appointed, the State intentionally induced Johnson to make
incriminating statements to a jailhouse informant in violation of
Johnson’s right to counsel. Because Johnson’s statements were
impermissibly elicited, the informant’s testimony concerning those
statements was inadmissible under United States v. Henry, 447 U.S.
264 (1980). Second, although the prosecutor at Johnson’s first trial
knew that Johnson’s statements were impermissibly elicited and that
the informant’s testimony was inadmissible, he knowingly used false
testimony and misleading argument to convince the court to admit the
testimony. And third, because the informant’s testimony was
admitted and then later used at Johnson’s 1988 trial, and because the
State has failed to show that this error did not contribute to the jury’s
advisory sentences of death, we must vacate the death sentences under
Giglio v. United States, 405 U.S. 150 (1972), and remand for a new
penalty phase proceeding before a new jury.

In Grossman’s original postconviction motion, he raised a claim of
prosecutorial misconduct regarding Brewer’s testimony. Following the 1995
evidentiary hearing on that claim, the trial court denied relief, finding that there
was no evidence that the State knew Brewer’s testimony was false at the time of
trial and further found that, in any event, Grossman had not shown how Brewer’s
allegedly false testimony affected the judgment or sentence in Grossman’s case. In
his third successive postconviction motion, Grossman does not provide any new
evidence or indication that prosecutorial misconduct occurred. Therefore, unlike
in Johnson, Grossman’s claim is successive, and we deny relief on that basis.

Grossman next argued in his third successive postconviction motion that the
death penalty is arbitrary and capricious as applied to him because he had a
clemency proceeding in October 1988, but has not had an opportunity to present
further information about his life in a recent clemency proceeding. He asserted
that newly discovered evidence would explain why he acted impulsively at
nineteen years of age when he committed the murder. He further contended that
the clemency procedures are impermissibly arbitrary.
We conclude that the trial court properly denied this claim without an
evidentiary hearing. This Court recently rejected an identical claim in Johnston v.
State, 35 Fla. L. Weekly S64 (Fla. Jan. 21, 2010):

Johnston contends that his original clemency hearing was
inadequate to protect his rights because it was conducted before his
full life history and mental illness history were developed. We
rejected a similar argument in Bundy that time must be given to
prepare and present a case for clemency in a second clemency
proceeding before the death sentence may be carried out. Bundy[v.
State], 497 So. 2d [1209] at 1211 [(Fla. 1986)]. We also noted in
Marek v. State, 14 So. 3d 985 (Fla. 2009), after Marek raised a second
challenge to the clemency process, that .five justices of the United
States Supreme Court concluded [in Ohio Adult Parole Authority v.
Woodard, 523 U.S. 272 (1998)] that some minimal procedural due
process requirements should apply to clemency . . . [b]ut none of the
opinions in that case required any specific procedures or criteria to
guide the executive’s signing of warrants for death-sentenced
inmates.. Marek, 14 So. 3d at 998. We again conclude that no
specific procedures are mandated in the clemency process and that
Johnston has been provided with the clemency proceedings to which
he is entitled.
Further, we decline to depart from the Court’s precedent, based
on the doctrine of separation of powers, in which we have held that it
is not our prerogative to second-guess the executive on matters of
clemency in capital cases. Johnston has not provided any reason for
the Court to depart from its precedents or to hold that an additional
clemency proceeding is required before a death warrant is signed.
Because these same claims have been raised and ruled on in the
Court’s prior precedents, and Johnston has provided no reason for the
Court to depart from those precedents, relief is denied.
Johnston, 35 Fla. L. Weekly at S69; see also Marek, 14 So. 3d at 998; Bundy, 497
So. 2d at 1211. Similarly, Grossman has not provided any reason why this Court
should depart from its well-established precedent on this issue, and we thus deny
relief on this claim.

III. Competency to be Executed
Grossman’s final argument in his third successive postconviction motion is
that executing him would be cruel and unusual punishment because he may be
incompetent at the time of execution. The trial court dismissed this claim on the
ground that the claim was premature under both section 922.07, Florida Statutes
(2009), and Florida Rule of Criminal Procedure 3.811(c). Rule 3.811(c) provides
that .[n]o motion for a stay of execution pending hearing, based on grounds of the
prisoner’s insanity to be executed, shall be entertained by any court until such time
as the Governor of Florida shall have held appropriate proceedings for determining
the issue pursuant to the appropriate Florida statutes.. See also § 922.07, Fla. Stat.
(2009) (outlining procedures for Governor to follow when he or she is informed
that a person under sentence of death may be insane). We conclude that the trial
court properly dismissed this claim because under rule 3.811(c) and section
922.07, Grossman must exhaust his administrative remedies before he can raise
this issue in court. The trial court also properly dismissed this claim on the basis
that it lacked jurisdiction to consider the claim under Florida Rule of Criminal
Procedure 3.811(d)(1). Rule 3.811(d)(1) provides in pertinent part: .The motion
shall be filed in the circuit court of the circuit in which the execution is to take
place . . . .. Accordingly, we affirm the trial court’s dismissal of this claim.

CONCLUSION
For the reasons discussed above, we affirm the trial court’s summary denial
of Grossman’s third successive motion for postconviction relief.
It is so ordered.
PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ.
concur.
QUINCE, C.J., recused.
NO MOTION FOR REHEARING WILL BE ALLOWED.
An Appeal from the Circuit Court in and for Pinellas County,
Joseph Anthony Bulone, Judge – Case No. 84-11698 CFANO
Bill Jennings, Capital Collateral Regional Counsel, and Richard E. Kiley, James
Viggiano, and Andrew Ali Shakoor, Assistant CCR Counsel, Middle Region,
Tampa, Florida,
for Appellant
Bill McCollum, Attorney General, and Carol M. Dittmar, Senior Assistant
Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa,
Florida,
for Appellee