1 ‘;r 2,

IN AND FOR VOLUSIA COUNTY, FLORIDA

FILED 1

Daytona Beach, Florida 32114

STATE OF FLORIDA, I Appellee. , I I

IN AND FOR VOLUSIA COUNTY, FLORIDA

Daytona Beach, Florida 32114

(904) 238-4990

PAGES :

TABLE OF AUTHORITIES... ................................... ii

STATEMENT OF THE CASE AND FACTS...... ..................... .1

SUMMARY OF ARGUMENT........................................7

I THE CIRCUIT COURT'S DENIAL OF

SWAFFORD'S CLAIMS WAS NOT ERRONEOUS .......... 9

I1 SWAFFORD WAS NOT DENIED A FULL

AND FAIR HEARING ON HIS MOTION TO

VACATE WHEN THE CIRCUIT COURT DENIED

THE MOTION TO DISQUALIFY THE JUDGE.. ........ 13

I11 ACCESS TO THE FILES AND RECORDS

CHAPTER 119.01 ET SEQ., FLA. STAT.. .......... 20

IV AND VI THE CLAIMS THAT THE STATE

THE FIFTH, SIXTH, EIGHTH AND

V THE SUCCESSIVE CLAIM THAT

VIOLATION OF THE SIXTH, EIGHTH AND

PROCEDURKGLY BARRED.. ...............

,. 25

VI I THE SUCCESSIVE CLAIM THAT

SWAFFORD WAS DENIED THE EFFECTIVE

SIXTH, E I GHTH AND FOURTEENTH

AMENDMENTS IS PROCEDURALLY BARRED. .......... 45

VIII SWAFFORD'S ALLEGED ESPINOSA V.

FLORIDA, 112 S.CT. 2926 (1992),

CLAIM IS PROCEDURALLY BARRED AS JURY

INSTRUCTIONS WERE NOT OBJECTED TO

AND THE CLAIM WAS NOT TIMELY RAISED

IN A SUCCESSIVE MOTION.. .................... 52

CONCLUSION.................... ............................ 63

1. Swafford u. State, 533 So.2d 270 (Fla. 1988) ............. la

2 . Swafford u. Dugger, 569 So.2d 264 (Fla. 1990) ........... l l a

3. Transcript of Hearing in Federal District

Court November 1 4 , 1990 before United States

District Judge G. Kendall Sharp ...................... 16a

4. Swafford u. Dugger, No. 90-846-CIV-ORL-18 USDC

Middle District of Florida (Order of Judge

Sharp Denying Petition for Writ of Habeas

Corpus ............................................... 88a

5. Swafford's Motion to Hold Proceedings in

Abeyance Pending Resubmission of Brudy u.

Maryland and Related Issues to the Florida

State Courts Filed November 22, 1991 in the

United States Court of Appeals for the

Federal Habeas Corpus Relief.. ...................... 119a

6 . Order of United States Court of Appeals for

t h e Eleventh Circuit Granting Swafford's

Motion to Hold Proceedings in Abeyance.. ............ 138a

CERTIFICATE OF SERVICE.. .................................. 64

CASES :

412 So.2d 850 (Fla. 1982) ............................. 58

560 So.2d 222 (Fla. 1990) ......................... 23, 31

373 U.S. 83 (1963) .............. 7, 9, 11, 22, 31, 34, 44

428 So.2d 1389 (Fla. 1983) ............................ 56

538 So.2d 445 (Fla. 1989) ................. 22, 34, 41, 48

569 So.2d 1263 (Fla. 1990) ........................ 23, 31

494 U.S. 738 (1990) ................................... 57

521 So.2d 150 (Fla. 5th DCA 1988) ................. 16, 17

497 So.2d 240 (Fla. 1986) ............................. 16

470 So.2d 687 (Fla. 1985) ............................. 51

601 S0.2d 1157 (Fla. 1992) ............................ 53

446 U.S. 420 (1980) ................................... 57

414 So.2d 1025 (Fla. 1982) ........................... 5 8

66 So.2d 823 (Fla. 1953) .............................. 15

541 So.2d 1125 (Fla. 1989) ........................ 23, 31

438 So.2d 787 (Fla. 1983) ............................. 56

575 So.2d 170 (Fla. 1991) ............................. 32

571 So.2d 449 (Fla. 1990) ...............................

583 So.2d 316 (Fla. 1991) ............................. 10

591 So.2d 911 (Fla. 1991) ...................... 9, 12, 35

547 So.2d 912 (Fla. 1989) ......................... 31, 49

501 So.2d 759 (Fla. 5th DCA 1987) ..................... 14

549 So.2d 1364 (Fla. 1989) ................. 9, 11, 20, 31

438 So.2d 380 (Fla. 1983) ............................. 58

441 So.2d 1083 (Fla. 1983) ............................14

484 U.S. 231 (1988) ...................................53

486 U.S. 356 (1988) ................................ 56-57

No. 75,081 (Fla. Nov. 12, 1992) ................... 55, 60

592 So.2d 1076 (Fla. 1992) ............................ 10

408 U.S. 786 (1972) ................................... 32

395 So.2d 492 (Fla. 1981) ............................. 33

522 So.2d 817 (Fla. 1988) ............................. 53

- iv -

428 U.S. 242 (1976) ................................... 53

561 So.2d 541 (Fla. 1990) ............................. 10

17 F.L.W. S620 (Fla. O c t . 15, 1992) ................... 56

135 So.2d 228 (Fla. 2d DCA 1961) ...................... 15

546 So.2d 1037 (Fla. 1989) ............................. 9

568 So.2d 1255 (Fla. 1990) ............................ 31

511 So.2d 526 (Fla. 1987) ............................. 53

601 S0.2d 1181 (Fla. 1992) .................... 10, 13, 16

440 So.2d 1257 (Fla. 1983) ............................ 58

590 So.2d 397 (Fla. 1991) .................. 24, 32-33, 35

424 So.2d 726 (Fla. 1982) ............................. 58

453 So.2d 388 (Fla. 1984) ............................. 51

112 S.Ct. 2114 (1992) ................................. 56

463 S0.2d 229 (Fla, 1985) ............................ 51

526 S0.2d 71 (Fla. 1988) .............................. 10

545 So.2d 843 (Fla. 1989) ............. 34, 41, 44, 48, 51

570 So.2d 289 (Fla. 1990) ...................... 22, 31-32

469 U . S . 892 (1984) . . . . . . . . . . . . . . . , , , , . . . . . . . . . . . . . . . . . . . 6 2

565 So.2d 318 (Fla. 1990) ............................. 44

562 So.2d 324 (Fla. 1990) .............................

509 So.2d 1264 (Fla. 1990) ........................... ,61

569 So.2d 1264 (Fla. 1990) ................ 33, 41, 49, 56

489 U.S. 1100 (1989) .................................. 24

533 So.2d 270 (Fla. 1988) ................. 56, 58, 60, 62

561 So.2d 557 (Fla. 1990) ............................. 44

322 S0.2d 908 (Fla. 1975) ............................. 59

497 U.S. 639 (1990) ................................... 58

OTHER AUTHORITIES

- vi -

STATEMENT OF THE CASE AND FACTS

On the morning of Sunday, February 14, 1982, the victim,

the corner of U.S. Highway No. 1 and Granada Avenue in Ormond

Beach, Florida. Two witnesses saw her there at 5:40 and 6:17

a.m. A third witness, who said he arrived at the station at

around 6:20, found no attendant on duty although the store was

open and the lights were on. At 6:27 a.m., the police were

called, and an officer arrived at the station a few minutes

On February 15, 1982, the victim's body was found in a

to the head. The cause of death was loss of blood from a shot to

the chest. Based on trauma, lacerations, and seminal fluid in

been sexually battered. Holes in the victim's clothing

corresponding to the bullet wounds to her torso indicated that

the type of weapon used indicated that the killer had to stop and

reload the gun at least once. Several bullets and fragments were

Swafford and four companions drove from Nashville,

about midnight on Friday, February 12 and arriving in Daytona

Beach at about noon the next day. After setting up camp in a

state park, Swafford and some others went out for the evening,

arriving back at the campground at about midnight. Then,

according to the testimony at trial, Swafford took the car and

the Shingle Shack, testified that Swafford was there with his

that Swafford returned alone at about 1:00 a.m. Sunday. When

Atwell finished working at 3:OO a.m., she left the Shingle Shack

with Swafford. They spent the rest of the night together at the

home of Swafford's friend. At about 6:OO a.m., he returned her

to the Shingle Shack and left, driving north on U.S. 1, a course

that would have taken him by the FINA station. In the light

traffic conditions of early Sunday morning, the FINA station was

around daybreak. The court took judicial notice of the fact that

sunrise took place on the date in question at 7:04 a.m.

On Sunday Swafford and his friends attended an auto race in

where one of the party got into a dispute with some other people

over money he had paid in the expectation of receiving some

police were called, and Swafford deposited the gun in a trash can

also showed that Swafford had had the gun for some time.

possible involvement, evidence established the chain of police

custody and the identification of the gun.

charged could be drawn. Ernest Johnson told of an incident that

Swafford at an auto race track, Johnson accompanied him to his

suggested to Johnson that they "go get some women'' or made a

statement to that effect Johnson testified as follows

concerning what happened then:

Q. Okay. What happened then? what

A. He just asked me if I wanted to

Q. And then what took place?

A. We got in-he asked me if I wanted

to take my truck and I said no, so we

went in his car.

All right. We went and got a sixpack

of beer and started riding. And he

said do you want to get a girl, and I

I'll get one.

So, as we was driving, I said, you

know, where are you going to get her at.

He said, I'll get her. He said-he said,

you won't have to worry about nothing

the way I'm going to get her, or he put

it in that way. And he said-he said,

we'll get one and we'll do anything we

want to her. And he said, you won't

have to worry about it because we won't

So, I said, how are you going to do

that. And he said, we'll do anything we

want to and I'll shoot her.

go get some girl and I said yeah.

So, he said if-you know, he said that

he'd get rid of her, he'd waste her, and

he said, I'll shoot her in the head.

I said, man, you're crazy. He said,

no, I'll shoot her in the head twice and

I'll make damn good sure that she's, you

know, she's dead. He said, there won't

So, I asked him, I said, man, don'tyou

just get used to it.

Johnson then told the jury that he and Swafford went to a

department store parking lot late at night, that Swafford

selected a victim, told Johnson to drive the car, directed him to

a position beside the targeted victim's car, and drew a gun.

to be taken back to his truck.

The jury found Swafford guilty of first-degree murder and

sexual battery and recommended a sentence of death. The trial

The trial court found the murder to have been committed for

the purpose of avoiding OK preventing a lawful arrest; to have

been especially heinous, atrocious, or cruel; to have been

committed in a cold, calculated, and premeditated manner without

any pretense or moral or legal justification; committed while

engaged in, or in flight after, committing sexual battery.

The trial court found that one item of information adduced

by the defense constituted a nonstatutory mitigating

father, were he able, would have testified that Swafford had

attained the rank of Eagle Scout, the trial court found that

Swafford had indeed been an Eagle Scout and noted "the efforts

required to achieve such an honor." The court found the factor

had training and supervision that should have led him to become a

and sentence on direct appeal. Swafford u. State, 533 So.2d 270

(Fla. 1988).

rejected by this court. Many of such claims should have been

raised on direct appeal and were found to be procedurally barred,

Swafford u. Dugger, 569 So.2d 1264 (Fla. 1990).

Swafford subsequently filed a petition for writ of habeas

corpus in the United States District Court, Middle District of

Florida, Orlando Divisian. Oral argument was had on his claims

on November 14, 1990 (App. 16). All relief was denied by G.

Kendall Sharp, United States District Judge on November 15, 1990

(App. 88). Swafford then appealed the denial of habeas relief to

the United States Court of Appeals for the Eleventh Circuit.

Briefs were filed therein. Swafford then filed a motion to hold

proceedings in abeyance pending resubmission of Brady u. Maryland

and related issues to the Florida state courts. (App. 119).

Such motion was predicated on the premise that the state of

"1 PCR" refers to the record on appeal from the first motion to

vacate, Supreme Court Case No. 76,884. "2 PCR" refers to the

record below on this second motion to vacate, now the topic of

appeal. "R" refers to the record on direct appeal, Supreme Court

Case No. 69,359.

Florida was continuing to withhold documents. On December 16,

motion to hold proceedings in abeyance (App. 138) On November

22, 1991, Swafford filed a successive motion to vacate judgment

of conviction and sentence (2 PCR 126). On May 22, 1992, Circuit

Judge Kim C. Hammond summarily denied the motion for post

conviction relief and an order denying the same with attachments

was filed on July 24, 1992 (2 PCR 1227-1314). On June 9, 1992,

Swafford filed a motion for rehearing and to disqualify Judge ( 2

1409-1412). Notice of Appeal was filed by Swafford on July 16,

1. The circuit court's summary denial of Swafford's claims was

not erroneous. Swafford could have litigated all Chapter 119

certainly within the two year limit of Florida Rule of Crhninal

Procedure 3.850. The new evidence is neither Brady u. Maryland, 373

U . S . 83 (1963) material, nor demonstrative of factual innocence

of the type that would produce an acquittal upon retrial or

a fact that can't be changed by the speculations of a cadre of

CCR alleges a history of ex parte contact between the lower court

CCR counsel must have had some faith in the integrity of the

lower court for it allowed Judge Hammond to rule on the

himself. The motion to disqualify was not only untimely but was

Rose u. State, 601 So.2d 1181 (Fla. 1982), spoke not to bias but

the appearance of impropriety. There are no grounds present in

the instant case to prompt a reasonably prudent person to fear

3. CCR has been through all pertinent records in this case, The

Chapter 119 issue was litigated in the first post conviction

proceeding and CCR was given access to all requested records. A

later perception by a successive attorney that some document may

to public records files has been withheld. That the existence of

a document can be hypothesized from another document does not

mean such document has been withheld, even exists, or that access

to files has been denied. An obvious attempt is being made to

keep the door open for the filing of yet another repetitive

motion. This is Chapter 119 gridlock at its finest.

4. The claim that counsel was ineffective at the guilt/innocence

and penalty phase is a successive claim not raised within the two

year period of Florida Rule of Criminal Procedure 3.850. All

5 . The claim that Swafford's jury was improperly instructed in

procedurally barred for failure to object to such instruction or

I THE CIRCUIT COURT'S DENIAL OF

SWAFFORD'S CLAIMS WAS NOT ERRONEOUS.

procedural bar to his claims. He contends that an evidentiary hearing would

3.850 motion, as he presented claims premised upon Brady u. Maryland, 373 U.S.

83 (1963), Strickland v. Washington, 466 U.S. 668 (1984), and Richardson u.

State, 546 So.2d 1037 (Fla. 1989), and facts which demonstrate he is factually

innocent of the offense for which he wag convicted and sentenced to death. He

He argues, citing Lightbourne u. Dugger, 549 So.2d 1364 (Fla. 1989), and Jones

u. State, 591 So.2d 911 (Fla. 1991), that an evidentiary hearing is required on

a second motion to vacate where, accepting the allegations as true, relief is

warranted or where, accepting newly discovered evidence as true, a basis for

relief is shown. He further complains that the circuit court held that a

to why his motion should have been considered on the merits.

allow evidentiary resolution regarding his proffer that CCR had not fulfilled

as he was going through a divorce and personal crisis; at that time Governor

death row; CCR received Mr. Swafford's case under the pressure of an impending

execution date at a time when death warrants were outstanding on numerous

other CCR clients; CCR was underfunded and understaffed to meet the burden of

multiple warrants and had a caseload of nonwarrant cams; and as a result of

the warrant he was required to file the first Rule 3.850 motion six months

it was filed. Counsel ultimately resigned on October 1, 1990, effective

November 1, 1990, and stayed on only until the stay of execution could be

obtained for Swafford. Swafford alleges that the facts presented in his

second 3.850 motion establish that he was entitled to an evidentiary hearing

and relief and such facts were not presented before because prior counsel did

not do his job. Counsel failed to contact witnesses, did not know the case,

Swafford argues that pursuant to Spaldiizg u. Dugger, 526 so.2d 71 (Fla. 1988),

capital petitioners in Florida are entitled to the effective post-conviction

assistance of cOun5el. The Overton Commission is alleged to have recognized

proceedings, and implicitly recognized that the pace of warrant aignings and

lack of adequate funds and staff for CCR rendered CCR unable to p-avide

Swafford further complains that the state's violations of Chapter 119

precluded a full presentation of his claims in his first motion to vacate. He

alleges that the state intentionally and deliberately withheld Chapter 119

unable to review those documents within that time frame or to amend the motion

to vacate. Only after a stay was entered and new counsel had time to review

the material was it discovered that Chapter 119 still had not been complied

required to show that the state precluded a full presentation in the prior

motion to vacate. Citing State u. Kokal, 562 So.2d 324 (Fla. 1990);

Provenzano u. Rugger, 561 So.2d 541 (Fla. 1990); Mendyk u. State, 592 So.2d

1076 (Fla. 1992); and Jennings u. State, 583 So.2d 316 (Fla. 1991), Swafford

a collateral litigant time to review the material once it is disclosed. He

notes that in each of these decisions this court held that sixty days was a

Swafford further alleges that during the initial proceedings the state

and the judge engaged in ex parte communications which were not disclosed.

of the order signed by the judge. They were prepared on the same machine used

to prepare the state's pleadings. While the case proceeded under warrant,

prior counsel received faxed copies of these orders which distorted the type

and precluded discovery of the ex parte contact. Swafford argues that

pursuant to Rose v. State, 601 So.2d 1181 (Fla. 1992), this undisclosed ex

parte communication must void the prior proceedings and h i s claims must be

- 10 -

which go to the fundamental fairness of his conviction and to the

appropriateness of his death sentence. He claims that pursuant to Rule 3.850

and the precedents of this court a post-conviction movant is entitled to an

evidentiary hearing unless the motion OK filee and records in the case

conclusively 3hOW that the prisoner is entitled to no relief. Because the

trial court denied the motion without an evidentiary hearing and without

attaching any portion of the record to the order of denial, review is limited

to determininig whether the motion conclusively shows on its face that he i s

extent that they are conclusively rebutted by the record. He claims that he

files and records in his case do not conclusively show that he is entitled to

no relief and that t h i s court as in Hoffman u. State, 571 So.2d 449 (Fla.

1990), has no choice but to reverse the order under review, remand, and order

a full and complete evidentiary hearing on Swafford's second 3.850 claims.

Ordinarily, when a post conviction movant alleges facts

which, if proven, would entitle him to relief and the files and

records do not conclusively show he or she is entitled to no

relief an evidentiary hearing should be held. See, Hoffman u. State,

571 So.2d 449 (Fla. 1990). This rule does not obtain, however,

as far as successiue motions are concerned and Lightbourne u. Dugger,

549 So.2d 1364 (Fla. 1989), did not create such a rule. The

denial of a prior motion did not bar Lightbourne's claim that

cellmates acted in concert with the state in obtaining

incriminating statements from him only because such acts were

unknown to his attorney and could not have been ascertained by

the exercise of due diligence prior to the statutory time limit.

In the present case the lower court found no Brady u. Maryland, 373

U.S. 83 (1963), violation and determined that CCR had access to

all files (2 PCR 1228). All claims should have been raised in

- 11 -

the first Florida Rule of Criminal Procedure motion. To the

extent that ineffective assistance of CCR counsel or Chapter 119

violations are alleged any "newly discovered evidence" is not of

such nature that it would probably produce an acquittal on

retrial or a life sentence as required pursuant to Jones u. State,

591 So.2d 911, 915-917 (Fla. 1991). Even accepting such

allegations as true does not warrant relief and the facts alleged

hardly demonstrate factual innocence. Much of such evidence goes

to support weak claims already rejected. Swafford's other myriad

- 12 -

I1 SWAFFORD WAS NOT DENIED A FULL AND

WHEN THE CIRCUIT COURT DENIED THE MOTION

TO DISQUALIFY THE JUDGE.

On June 8, 1992, after the lower court summarily denied his second

Florida Rule of Criminal Procedure 3.850 motion, swafford filed a Motion for

was filed because ex parte contact between the court and the Office of the

State Attorney led to the denial of his November 22, 1991, motion to vacate.

denying relief on Swafford's second motion to vacate. A copy of this draft

was sent via regular U . S . Mail to defense counsel. On May 22, 1992, the trial

court adopted the state's order summarily denying the motion €or post

conviction relief. Swafford complains that the order was entered before he

could f i l e an objection to the state's order and without his being given the

benefit of a hearing to argue the need for an evidentiary hearing. Swafford

argues that because there was no "on the record" directive from the court

that the order was the product of ex parte communication between the state and

the court in violation of Rose u. State, 601 So.2d 1181 (Fla. 1992). Swafford

alleges that he moved to recuse the trial court on the basis of this ex parte

communication and a history of ex parte communications which occurred

throughout this case. This is alleged to be the second time the court has

1990. On October 22, 1990, the state filed, along with its response, a

the state, apparently subsequent to ex parte discussions with the same court,

filed a notice of hearing for October 24, 1990. The defense was not contacted

in advance to determine the feasibility of holding the hearing on twenty-four

hours notice. The hearing was held on October 24, 1990, after which the court

determined that it would review the issues involved and act accordingly. On

October 30, 1990, the court issued its order summarily denying defendant's

motion for post-conviction relief. Swafford alleges that this order was

printed on the same word processor which produced the other state pleadings.

- 13 -

He complains that Paragraphs IC, ID, 11, 3C, 3H, 31, 35, 3R, 3L, 3M, 3N, 30,

3P, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the court's order are either

identical to the state's previously proFosed order, or are slightly modified

contains the same spacing errors in Paragraphs 11, 3F and 3M as found in the

state's proposed order, again indicating that both orders were prepared on the

same equipment, or using the same computer disk; that the caption matches the

caption on the state's pleadings and not the caption on the orders prepared

and signed by the court on November 5, 1990. He concludes that "obviously, ex

parte contact occurred" and the state printed a revised draft order which the

judge signed. Pursuant to Rose, he argues that it is improper for the state

to prepare an order for the court's signature without the defense being given

an opportunity to object. Under such facts, it must be assumed that the trial

court, in ex parte communication, had requested the state to prepare the

proposed order. Swafford concludes that this court must reverse and remand.

In ruling on the motion for disqualification, the lower

motion is made may only determine whether the motion is legally

sufficient and is not allowed to pass on the truth of the

allegations." Livingston U. State, 441 So.2d 1083, 1086 (Fla. 1 9 8 3 ) .

Judge Hammond noted it would be reversible error for him to

attempt to refute the allegations of the motion, see, Lake u.

Edwards, 501 So.2d 759 (Fla. 5th DCA 1987), and he did not do so.

( 2 PCR 1409).

required, among other things, to be accompanied by two or more

supporting affidavits, which also must be legally sufficient.

Swafford's motion was accompanied by two affidavits in which the

- 14 -

prejudice and a predisposition to rule against Swafford. The

lower court properly found these affidavits were wholly

inadequate and not legally sufficient (2 PCR 1410). 'I An

affidavit the statements of which are alleged on information and

belief is, by the weight of authority, insufficient in any

faith." Hahn u. Frederick, 66 So.2d 823, 825 (Fla. 1953). See also,

Raybon u. Burnette, 135 So.2d 228 (Fla. 2d DCA 1961).

In Hahn, supra, each of the two affiants had stated that he

had read the main affidavit and that the facts therein were "true

to the best of his knowledge, information and belief, 'I and that

finding the affidavits insufficient, the Huhn court held that in