IN THE SUPREME COURT OF FLORIDA

CASE NO. 80,182

ROY CLIFTON SWAFFORD,

Appellant,

V.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

LARRY HELM SPALDING

Capital Collateral Representative

Florida Bar No. 0125540

MARTIN J. MCCLAIN

Chief Assistant CCR

Florida Bar No. 0754773

KENNETH D. DRIGGS

Assistant CCR

Florida Bar No. 304700

OFFICE OF THE CAPITAL

1533 South Monroe Street

Tallahassee, FL 32301

COLLATERAL REPRESENTATIVE

(904) 487-4376

COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court's

summary denial of Mr. Swafford's motion for post-conviction

relief. The circuit court denied Mr. Swafford's claims without

an evidentiary hearing. Citations in this brief to designate

references to the records, followed by the appropriate page

number, are as follows:

IIR. - Record on appeal to this Court in first direct

appeal ;

"PC-R1. - - Record on appeal from denial of the first

Motion to Vacate Judgment and Sentence.

"PC-R2. _I - Record on appeal from denial of the second

Motion to Vacate Judgment and Sentence.

All other citations will be self-explanatory or will

otherwise be explained.

REOUEST FOR ORAL ARGUMENT

The resolution of the issues involved in this action will

allowed oral argument in other capital cases in a similar

procedural posture. A full opportunity to air the issues through

oral argument is necessary given the seriousness of the claims

and the issues raised here. Mr. Swafford, through counsel,

respectfully urges the Court to permit oral argument.

i

TABLE OF CONTENTS

Paqe

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS ii

V TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT 9 a . . . . . . . . . . . . . . . . . . . . .

ARGUMENT I

THE CIRCUIT COURT'S DENIAL OF ALL OF MR. SWAFFORD'S

CLAIMS WAS ERRONEOUS . . . . . . . . . . . . . . . . . . 11

A. THE CIRCUIT COURT ERRED IN APPLYING A PROCEDURAL

BAR TO MR. SWAFFORD'S CLAIMS . . . . . . . . . . . 11

1. No adequate representation . . . . . . . . . . 13

2. Chapter 119 violations. . . . . . . . . . . . 19

3 . Ex parte communication . . . . . . . . . . . . 20

B* AN EVIDENTIARY HEARING WAS REQUIRED . . . . . . . . 21

ARGUMENT I1

MR. SWAFFORD WAS DENIED A FULL AND FAIR HEARING ON HIS

RULE 3.850 MOTION TO VACATE IN VIOLATION OF THE LAWS OF

THE STATE OF FLORIDA AND THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE

CIRCUIT COURT DENIED THE MOTION TO DISQUALIFY THE

JUDGE. . . . . . . . . . . . . . . . . . . . . . . . . . 24

ARGUMENT I11

ACCESS TO THE FILES AND RECORDS PERTAINING TO MR.

SWAFFORD IN THE POSSESSION OF CERTAIN STATE AGENCIES

HAVE BEEN WITHHELD IN VIOLATION OF CHAPTER 119.01 - ET

SEQ., F L A . S T A T . . . . . . . . . . . . . . . . . . . . . 27

I. STATE AGENCIES THAT HAVE FAILED TO COMPLY WITH

PUBLIC RECORDS REQUESTS . . . . . . . . . . . . . . 28

A. VOLUSIA COUNTY SHERIFF'S OFFICE . . . . . . . 29

a

Ir

a

11. CHAPTER 119 LAW . . . . . . . . . . . . . . . . . . 32

111. CONCLUSION AND RELIEF . . . . . . . . . . . . . . . 33

ARGUMENT IV

THE STATE'S WITHHOLDING OF MATERIAL AND EXCULPATORY

EVIDENCE AND THE KNOWING PRESENTATION OF FALSE AND

PERJURED TESTIMONY VIOLATED MR. SWAFFORD'S RIGHTS UNDER

THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. . . 34

A.

B.

C.

E.

F.

G.

ARGUMENT V

THE STATE WITHHELD EVIDENCE RELATING TO THE TIME

OFDEATH . . . . . . . . . . . . . . . . . . . . . 35

THE STATE WITHHELD EVIDENCE THAT THE CRIME SCENE

WAS NOT PROMPTLY SECURED AND THAT THE BODY WAS NOT

PROMPTLY RECOVERED AFTER NOTIFICATION . . . . . . . 38

THE STATE'S DOUBTS ABOUT THE IDENTITY OF BRENDA

BUCKER'S ASSAILANT . . . . . . . . . . . . . . . . 40

THE STATE COULD NOT HAVE PROVEN A CHAIN OF CUSTODY

ON THE GUN AND THE BULLETS ALLEGEDLY FIRED FROM

IT . . . . . . . . . . . . . . . . . . . . . . . . 41

THE STATE PRESENTED FALSE EVIDENCE THAT THE VICTIM

WAS SHOT TWICE IN THE HEAD. . . . . . . . . . . . . 44

THE DEFENSE WAS PROVIDED WITH A FABRICATED

TRANSCRIPT OF A KEY WITNESS' STATEMENT . . . . . . 47

ADDITIONAL DOCUMENTS STILL REMAIN WHICH HAVE NOT

BEEN PRODUCED TO THE DEFENSE . . . . . . . . . . . 48

CONCLUSION . . . . . . . . . . . . . . . . . . . . 48

ROY SWAFFORD WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL AT THE GUILT-INNOCENCE PHASE OF HIS TRIAL, IN

VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . 49

A. FAILURE TO PROPERLY ARGUE THE ADMISSIBILITY OF THE

BOLO . . . . . . . . . . . . . . . . . . . . . . . 49

B. FAILURE TO PROPERLY EXAMINE THE KEY DEFENSE

WITNESS.. . . . . . . . . . . . . . . . . . . . . 51

c. FAILURE TO IMPEACH STATE'S WITNESSES . . . . . . . 51

iii

a

D. FAILURE TO DEPOSE STATE WITNESSES . . . . . . . . . 60

a

1)

E. FAILURE TO IMPEACH PATHOLOGIST . . . . . . . . . . 61

F. COUNSEL WRONGLY CONCEDED SEXUAL BATTERY . . . . . . 61

G. FAILURE TO PRESENT AVAILABLE TESTIMONY . . . . . . 62

H. FAILURE TO POINT OUT JUROR MISCONDUCT . . . . . . . 62

I. CONCLUSION . . . . . . . . . . . . . . . . . . . . 64

ARGUMENT VI

NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT MR. SWAFFORD

IS INNOCENT OF THE OFFENSE FOR WHICH HE WAS CONVICTED

AND SENTENCED TO DEATH, AND THUS HIS CONVICTION AND

DEATH SENTENCE VIOLATE THE EIGHTH AND FOURTEENTH

AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . 65

ARGUMENT VII a

MR. SWAFFORD WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL AT THE SENTENCING PHASE OF HIS TRIAL, IN

VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . 69

ARGUMENT VIII

ESPINOSA V. FLORIDA ESTABLISHES THAT MR. SWAFFORD'S

DEATH SENTENCE WAS THE PRODUCT OF CONSTITUTIONALLY

INVALID JURY INSTRUCTIONS AND THE IMPROPER APPLICATION

OF STATUTORY AGGRAVATING CIRCUMSTANCES. . . . . . . . . 85

A. THE JURY INSTRUCTIONS GIVEN . . . . . . . . . . . . 85

B. ESPINOSA V. FLORIDA IS A CHANGE IN FLORIDA LAW . . 86

C. HEINOUS, ATROCIOUS OR CRUEL . . . . . . . . . . . . 89

D. COLD, CALCULATED AND PREMEDITATED . . . . . . . . . 90

E. PRIOR VIOLENT FELONY . . . . . . . . . . . . . . . 92

F. THE AUTOMATIC AGGRAVATOR. . . . . . . . . . . . . . 92

G. FOR THE PURPOSE OF AVOIDING LAWFUL ARREST . . . . . 93

H. P R E J U D I C E . . . . . . . , . . . . . . . . . . . + . 94

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 98

iv

a

TABLE OF AUTHORITIES

Paqe

Bates v. State,

465 So. 2d 490 (Fla. 1985) . . . . . . . . . . . . . . . 91

Beltran-Lopez v. Florida,

112 S. Ct. 3021 (1992) . . . . . . . . . . . . . . . . . 87

Bludworth v. Palm Beach Newspapers, Inc.,

476 So. 2d 775 (Fla. App. 4 D i s t . 1985) . . . . . . . . 33

Bradv v. Maryland,

373 U . S . 83 (1967) . . . . . . . . . . . . . . . . 5, 12, 34

Brewer v. Aiken,

935 F.2d 850 (7th Cir. 1991) . . . . . . . . . . . . . . 69

Brown v. Duqqer,

831 F.2d 1547 (11th Cir. 1987) . . . . . . . . . . . . . 96

Cave v. Sinqletary,

971 F.2d 1513 (11th Cir. 1992) . . . . . . . . . . . . . 83

Cunninsham v. Zant,

928 F.2d 1006 (11th Cir. 1991) . . . . . . . . . . . . . 69

D-,

112 S. Ct. 3021 (1992) . . . . . . . . . . . . . . . . . 87

Davis v. McMillian,

38 So, 666 (Fla. 1905) . . . . . . . . . . . . . . . . . 32

Demss v. State,

416 So. 2d 808 (Fla. 1982) . . . . . . . . . . . . . . . 23

Derden v. MCNeel,

938 F.2d 605 (5th cir. 1991) . . . . . . . . . . 41, 97, 98

Downs v. Duqger,

514 SO. 2d 1069 (1987) . . . . . . . . . . . . . . . . . 88

Enqberq v. Meyer,

820 F.2d 70 (Wyo. 1991) . . . . . . . . . . . . . . . . 93

EsPinosa v. Florida,

112 S. Ct. 2926 (1992) . . . . . . . . . . . . . . . 86, 94

Francis v. Spraqqins,

720 F.2d 1190 (11th C i r . 1983) . . . . . . . . . . . 62, 84

Gaskin v. Florida,

112 S. Ct. 3022 (1992) . . . . . . . . . . . . . . . . . 87

Geralds v. State,

601 So. 2d 1157 (Fla. 1992) . . . . . . . . . . . . . . 93

Giqlio v. United States,

405 U . S . 150 (1972) . . . . . . . . . . . . . . . . . . 45

Godfrev v. Georqia,

446 U . S . 420 (1980) . . . . . . . . . . . . . . . . . . 86

Gorham v. State,

521 So. 2d 1067 (Fla. 1988) . . . . . . . . . . . . 12, 21

Gorham v. State,

597 So. 2d 782 (Fla. 1992) . . . . . . . . . . . . . . . 34

Green v. State,

583 So. 2d 647 (Fla. 1991) . . . . . . . . . . . . . . . 91

Hall v. State,

541 So. 2d 1125 (Fla. 1989) . . . . . . . . . . . . . . 96

Hallman v. State,

560 So. 2d 223 (Fla. 1990) . . . . . . . . . . . . . . . 95

Hamblen v. State,

527 So. 2d 800 (Fla. 1988) . . . . . . . . . . . . . . . 91

Harich v. State,

484 So. 2d 1239 (Fla. 1986) . . . . . . . . . . . . . . 22

Harrison v. Jones,

880 F.2d 1279 (11th cir. 1989) . . . . . . . . . . . 69, 88

Heath v. Jones,

941 F.2d 1126 (11th Cir. 1991) . . . . . . . . . . . . . 97

Heinev v. Dusser,

558 So. 2d 398 (Fla. 1990) . . . . . . . . . . . . . . . 12

Heiney v. State,

558 So. 2d 398 (Fla. 1990) . . . . . . . . . . . . . . . 22

Henry v. Florida,

112 S. Ct. 3021 (1992) . . . . . . . . . . . . . . . . . 87

Hitchcock v. Florida,

112 S. Ct. 3020 (1992) . . . . . . . . . . . . . . . . . 87

vi

0

0

I)

Hodcres v. ids,

52 Crim. L. Rep. 3015 ( U . S . October 5, 1992) . . . . . . 87

Holland v. State,

503 So. 2d 1250 (Fla. 1987) . . . . . . . . . . . . 22, 23

Holland v. State,

503 So. 2d 1354 (Fla. 1987) . . . . . . . . . . . . . . 21

Holton v. State,

573 So. 2d 284 (Fla. 1991) . . . . . . . . . . . . . . . 91

In re Petition of Post-Newsweek Stations,

370 So. 2d 764, 780 (Fla. 1979) . . . . . . . . . . . . 32

Jenninss v. State,

583 So. 2d 316 (Fla. 1991) . . . . . . . . . . . . . 20, 28

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . 12, 66

Kubat v. Thieret,

867 F.2d 351 (7th Cir. 1989) . . . . . . . . . . . . . . 69

LeDuc v. State,

415 So. 2d 721 (Fla. 1982) . . . . . . . . . . . . . . . 21

Lishtbourne v. Dusser,

549 So. 2d 1364 (Fla. 1989) . . . . 12, 23, 28, 48, 65, 68

Lishtbourne v, State,

438 So. 2d 380 (Fla. 1983) . . . . . . . . . . . . . . . 92

Love v. State,

569 So. 2d 807 (1st DCA 1990) . . . . . . . . . . . . . 25

Lowenfield v. Phelps,

484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . 93

Mathews v. Eldridge,

425 U . S . 319 (1976) . . . . . . . . . . . . . . . . . . 97

Mavnard v. Cartwriqht,

108 S. Ct. 1853 (1988) . . . . . . . . . . . . . . . . . 89

Maynard v. Cartwriqht,

486 U.S. 356 (1988) . . . . . . . . . . . . . . . . . . 86

McKenzie v. Risley,

915 F.2d 1396 (9th Cir. 1990) . . . . . . . . . . . . . 25

vii

Mendvk v. State,

592 So. 2d 1076 (Fla. 1992) . . . . . . . . . . . . . . 20

Middleton v. Duqqer,

849 F.2d 491 (11th Cir. 1988) . . . . . . . . . . . . . 69

Mills v. Duqqer,

Mitchell v. State,

559 So. 2d 578 (Fla. 1990) . . . . . . . . . . . . . 12, 22

595 So. 2d 938 (Fla. 1992) . . . . . . . . . . . . . . . 83

Moreland v. State,

582 So. 2d 618 (Fla. 1991) . . . . . . . . . . . . . . . 68

Naxlue v. Illinois,

360 U . S . 264 (1959) . . . . . . . . . . . . . . . . . . 45

Nixon v. Newsome,

888 F.2d 112 (11th Cir. 1989) . . . . . . . . . . . . . 52

O’Callaqhan v. State,

461 So. 2d 1354 (Fla. 1984) . . . . . . . . . . . . . . 22

Osborn v. Shillinser,

861 F.2d 612 (10th Cir. 1988) . . . . . . . . . . . . . 83

Perry v. State,

522 So. 2d 817 (Fla. 1988) . . . . . . . . . . . . . . . 93

Ponticelli v. Florida,

52 Crim. L. Rep. 3015 ( U . S . October 5, 1992) . . . . . . 88

Proffitt v. Florida,

428 U . S . 242 (1976) . . . . . . . . . . . . . . . . . . 89

Provenzano v. Duqqer,

561 So. 2d 541 (Fla. 1990) . . . . . . . . . . . . . . . 20

Provenzano v. State,

561 So. 2d 541, 547 (Fla. 1990) . . . . . . . . . . . . 33

Rav v. State,

403 So. 2d 956 (Fla. 1981) . . . . . . . . . . . . . . . 98

Richardson v. State,

546 So. 2d 1037 (Fla. 1989) . . . . . . . . . . . . 12, 68

Rocrers v. State,

511 So. 2d 526 (Fla. 1987) . . . . . . . . . . . . . . . 93

viii

R o s e v. State,

601 So. 2d 1181 (Fla. 1992) . . . . . . . . . . 21, 27, 26

Rose v. State,

601 So. 1181 (Fla. 1992) . . . . . . . . . . . . . . . . 25

Shell v. Mississippi,

111 S. Ct. 313 (1990) . . . . . . . . . . . . . . . . . 90

Smith v. Duffffer,

565 So. 2d 1293 (Fla. 1990) . . . . . . . . . . . . 12, 68

Smith v. Wainwriqht,

799 F.2d 1442 (11th Cir. 1986) . . . . . . . . . . . 44, 48

Sochor v. Florida,

112 S. Ct. 2119 (1992) . . . . . . . . . . . . . . . . . 86

Spaldincl v. Dusser,

526 So. 2d 71 (Fla. 1988) . . . . . . . . . . . . . . 1, 15

Squires v. State,

513 So. 2d 138 (Fla. 1987) . . . . . . . . . . . . . . . 12

State v. Crews,

477 So. 2d 984 (Fla. 1985) . . . . . . . . . . . . . . . 23

State v. Kokal,

562 So. 2d 324 (Fla. 1990) . . . . . . . . . . . . 5, 20, 28

State v. Kokal,

562 So. 2d 325 (Fla. 1990) . . . . . . . . . . . . . . . 33

State v. Lara,

16 FLW S306 (Fla. 1991) . . . . . . . . . . . . . . . . 70

State v. Lam,

581 So. 2d 1288 (Fla. 1991) . . . . . . . . . . . . . . 70

State v. Michael,

530 So. 2d 929 (Fla. 1988) . . . . . . . . . . . . . . . 70

State v. Middlebrooks,

S.W. 2d. - 1 1992 WL 236597,

s l i p op. No. 01-S-01-9102-CR-00008 (Tenn. Sept. 8, 1992) 93

Strickland v. Washinston,

466 U . S . 668 (1984) . . . . . . . . . . . . 12, 44, 49, 69

Strinser v. Black,

112 S. Ct. 1130 (1992) . . . . . . . . . . . . . . . 91, 93

ix

Stromberq v. California,

283 U . S . 359 (1931) . . . . . . . . . . . . . . . . . . 93

Suarez v. Duqqer,

527 So. 2d 190 (Fla. 1988) . . . . . . . . . . . . . . . 25

Swafford v. State,

533 So. 2d 270 (Fla. 1988) . . . . . . . . . . 1, 46, 71, 96

Swafford v. State,

569 So. 2d 1264 (1990) . . . . . . . . . . . . . . . . . . 7

Thompson v. Duclcler,

515 So. 2d 173 (Fla. 1987) . . . . . . . . . . . . . . . 88

United States v. cronic,

466 U . S . 648 (1984) . . . . . . . . . . . . . . 15, 49, 84

United $tates v. Swanson,

943 F.2d 1070 (9th Cir. 1991) . . . . . . . . . . . . . 83

Valle v. State,

502 So. 2d 1225 (Fla. 1987) . . . . . . . . . . . . . . 94

WaltOn v. Arizona,

110 S. Ct. 3047 (1990) . . . . . . . . . . . . . . . . . 87

Withermoon v. State,

17 F.L.W. D221 (4th DCA, January 8, 1992) . . . . . . . 21

X

a

a

a

a

STATEMENT OF THE CASE

On August 16, 1983, Mr. Swafford was charged by grand jury

indictment with first degree murder, sexual battery and robbery.

He pled not guilty. On October 28, 1985, the jury trial began.

The jury returned guilty verdicts of first-degree murder and

sexual battery. Mr. Swafford was acquitted of robbery. The

penalty phase was conducted on November 7, 1985. Defense counsel

presented no defense at the penalty phase proceedings. After the

jury recommended death, Judge Hammond sentenced Mr. Swafford to

death on November 12, 1985. This Court affirmed the conviction

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

(1988) . 1

On September 7, 1990, Governor Martinez signed a death

warrant setting Mr. Swafford's execution for November 13, 1990.

This action operated to shorten Mr. Swafford's time to

investigate and prepare a motion to vacate by s i x months.

Further, the Office of the Capital Collateral Representative

(CCR), the office responsible for providing effective

representation to Mr. Swafford in collateral proceedings

(Spaldinq v. Dusser, 526 So. 2d 71 (Fla. 1988)), had been

overwhelmed by Governor Martinez' warrant signing policies. In

the fall of 1990, CCR was on the verge of collapse. CCR had more

active warrants than it had experienced attorneys to work on

them. The experienced attorneys, who had not yet resigned and/or

1 The United States Supreme Court denied certiorari review on

March 27, 1989. As a result, Mr. Swafford's two year date under

Rule 3.850 was March 27, 1991.

2 left, were burned out and in deteriorating health. In fact on

a

a

October 24, 1990, this Court entered an Administrative Order

recognizing the difficulties confronting CCR (PC-R1. 361).

Mr. Swafford's case was assigned to Jerome Nickerson, who

resigned on October 1, 1990, but agreed to remain on at CCR only

until Mr. Swafford's execution was stayed. with regard to Mr.

with the motion to vacate at issue here:

My name is Jerome H. Nickerson, Jr., and

I was the lead attorney in Roy Swafford postconviction

litigation.

Under Governor Bob Martinez' death

warrant policy, I became overworked and

stressed to the point where my family life

was destroyed, and my physical and mental

health was substantially and significantly

deteriorating.

For a variety of reasons (as outlined

below), my investigation and litigation of

Mr. Swafford's post-conviction proceedings

fall below the requirements of effective

legal representation as put forth in Spaldinq

v. Duqqer, 526 So. 2d 71 (Fla. 1988).

From July 1990 to November of 1990, I

became responsible for s i x clients that were

under death warrant. In each of these cases

I was required to conduct evidentiary

hearings or arguments in state circuit court,

federal district court and the Florida

Supreme Court, in addition to preparing

pleadings for filing in the Eleventh Circuit

2 On October 1, 1990, Jerome Nickerson, Assistant CCR,

resigned effective November 1, 1990. See Attachment A. October

8, 1990, Gail Anderson, Assistant CCR, resigned effective

November 8, 1990. See Attachment B. Billy Nolas and Julie

Naylor resigned effective December 31, 1990. Tom Dunn

volunteered to be reactivated by the military and was sent to

Saudi Arabia.

a

Ir

a

i,

a

Court of Appeals and the United States

Supreme Court.

In July of 1990 my wife filed for

divorce. From September to mid-November I

actually lived in my office in attempting to

keep pace with the Governor's signing of

warrants and my case load.

under warrant on three successive days coming

within twelve hours of execution on each day

before obtaining an indefinite stay of

execution. In another, I was ordered to

appear in Orlando by a federal judge to

conduct a three day evidentiary hearing

within an hour after being denied a stay of

execution in the Florida Supreme Court. In

one instance with no assistance from any

other attorney in my office, I was required

to conduct an evidentiary hearing in Mr.

Swafford's case under warrant and the next

day, required to begin an evidentiary hearing

in another case when the Florida Supreme

Court refused to enter a writ of prohibition.

In addition to my warrant cases, I was also

required to conduct three evidentiary

hearings in non-warrant cases.

In one case I was required to litigate

During this period of time (July to

November 1990) I was unable to properly

investigate Mr. Swafford's case. In Mr.

Swafford's pleadings 1 attempted to inform

the various courts that things were out of

hand, that the investigation was incomplete

and request for public records had not been

fully complied with.

State's case against Mr. Swafford was weak

and much needed to be done on the

investigation, e.g. evaluating other

suspects. Under the exigencies of the death

warrant, however, an incomplete investigation

was done in order to be able to comply with

the court's filing requirements.

In my opinion the

I knew that the penalty phase in Mr.

Swafford's case was a strong claim of

ineffective assistance of counsel. However,

under the stress of the warrant system and

death penalty litigation at lightning speed,

I had failed to secure a final psychologist

report evaluating Mr. Swafford. I was

3

a

0

a

a

attempting to gather the type of mitigating

evidence that is highlighted in Dr. Fleming's

report: That Roy Swafford suffers from

organic brain damage, organic personality

syndrome, and behavioral and emotional

dyscontrol; that Roy is a product of an

impoverished family, alcoholic father and

harsh discipline as a child; and a

combination of glue sniffing, alcohol abuse

and head injury radically changed Roy's

personality.

Days before Roy's scheduled execution

the State released over 1500 pages of Chapter

119 material. There was no time to properly

evaluate, investigate, reinvestigate and

integrate the material in Mr. Swafford's

pleadings. The type of Chapter 119 that CCR

is now receiving that undermines the State's

conviction of Mr. Swafford is what I was

attempting to locate while handling Mr.

Swafford's case. Furthermore, given the late

date at which these documents were released

there was no way that a professionally

competent and thorough investigation could be

completed. This directly impacted the

pleadings that were filed and prevented me

from providing Mr. Swafford with effective

representation during this critical time

period.

My performance in Roy Swafford's case is

particularly painful because I firmly believe

that Roy is innocent and I know that the

State's case is very weak and suspect. If I

was given the proper compliance by the State

with 119 requests and was able to litigate

without the stress of the multiple death

warrant cases, Mr. Swafford's investigations

and pleadings would have yielded the claims

that CCR is presently developing.

It is my further understanding that CCR

has now been provided at least 1500

additional documents which had thus far been

withheld. This only underscores the point

that I was trying to make to the courts under

warrant, i . e . , that the State was willfully

refusing to comply with our legitimate and

lawful requests. It is also apparent that

this refusal existed prior to Mr. Swafford's

trial and as a result he went to trial with

4

a

a

a

0

only a modicum of the existing facts at his

disposal. Under the circumstances, I believe

that fundamental fairness and the ends of

justice dictates that his conviction be

vacated.

On October 15, 1990, Mr. Swafford initiated post-conviction

proceedings in state court. On October 18, 1990, counsel for Mr.

Swafford filed a Motion to Compel production of documents under

Fla. Statutes 119.01 & seq. pursuant to State v. Kokal, 562 So.

2d 324 (Fla. 1990). On October 22, 1990, the State submitted its

response. In its Response, the State conceded the

appropriateness of an evidentiary hearing (PC-R1. 367). The

State submitted t w o proposed orders on October 22, 1990, which

granted an evidentiary hearing on the Brady and penalty phase

ineffective assistance claims. As a result of ex parte

communication, the State sent out a notice of hearing on October

23, 1990, setting the matter for hearing on October 24, 1990.

The State, during the October 24, 1990 hearing before the trial

court reDeated its concession of the need for an evidentiary

hearing. Specifically the State conceded that a hearing was

appropriate on the violation of Bradv v, Marvland, 373 U.S. 83

(1967), as well as on the issue of ineffectiveness of counsel at

3

4

3Although this response indicated service by fax on October

22, 1990, this Response was not stamped llfiledll until October 31,

1990.

4 These draft orders were not included in the record on

appeal sent to this Court. These orders clearly reflect the

State's concession that an evidentiary hearing was required on

Mr. Swafford's motion to vacate. These draft orders are included

in the Appendix to this brief.

a

a

a

a

a

0

penalty phase (PC-R1. 7 ) . Despite the State's concessions, no

evidentiary hearing was held.

At the October 24, 1990, hearing, the State produced in

excess of one thousand (1000) pages of additional documents that

had not been previously given to the defense (PC-RZ. 455). On

October 30, 1990, the circuit court signed an order denying the

motion to vacate (PC-R1 436-51). A comparison of this order to

other pleadings and orders of record demonstrate that this denial

was drafted by the State and signed by the judge on ex parte

basis. Mr. Swafford's counsel was given no opportunity to

review these documents. Mr. Swafford, who was then less than two

w e e k s from scheduled execution, filed a Motion for Rehearing

appending the newly produced Chapter 119 documents thereto. The

State thereupon moved to strike the Appendix. The circuit court

denied the Motion for Rehearing and ordered that the Appendix be

stricken from the record (PC-R1. 471). An examination of this

order also reveals that it too was drafted by the State and

submitted to the court ex parte.

5

6

This order should be compared to other pleadings filed by 5

the State and the November 5, 1990 orders (PC-R1. 479-80). This

comparison reveals that the State drafted the order the judge

signed.

w h i c h appears in all of the State's pleadings. The State

submitted this order ex parte.

of the signed orders. The faxing processing distorts the type,

so that it was not obvious in the heat of the moment that the

order had been drafted by the State and submitted on an ex parte

basis.

The caption of this order contains a typographical error

6 While the case was under warrant, CCR received a faxed copy

6

a

a

On November 8 , 1990, Mr. Swafford appealed to this Court.

The record did not include the State's draft orders conceding

that an evidentiary hearing was required. Oral argument was held

on November 9, 1990. A temporary stay was issued until 1:00 p.m.

on November 15, 1990. On November 14, 1990, this Court issued

its opinion denying all relief. Swafford v. State, 569 So. 2d

1264 (1990). However, this Court was never advised of the ex

parte communications between the State and the circuit court.

Mr. Swafford next filed for federal habeas corpus review.

The federal district court denied relief. On November 15, 1990,

the Eleventh Circuit granted Mr. Swafford a stay of execution in

order to hear Mr. Swafford's appeal. Mr. Nickerson terminated

his employment with CCR the next day, November 16, 1990.

While the appeal w a s pending in the Eleventh Circuit, Mr.

Swafford, through newly assigned counsel, conducted the

investigation into his case which Mr. Nickerson had physically

and emotionally been unable to conduct. Upon further review of

the documents produced by the State under warrant, it was

discovered that the State had failed to fully disclose all public

records. Accordingly, on May 29, 1991, collateral counsel sent

another request for public records to the Florida Department of

Law Enforcement (IIFDLE") again requesting production of all

documents. On June 19, 1991, FDLE provided counsel with its file

where additional documents were discovered that have materially

impacted the investigation into this case.

a

0

a

a

Analysis of the newly disclosed FDLE records revealed that

yet more documents were being withheld by the Volusia County

Sheriff's Department (IIVCSDII). Accordingly, CCR wrote to the

VCSD and detailed eishtv-three (83) documents or sets of

documents known to exist but withheld by the State. On October

14, 1991, the VCSD provided counsel for Mr. Swafford with what

was originally represented as the complete files. However upon

inspection, none of the 83 documents or sets of documents were

found. Counsel thereupon requested these items and was informed

that the detectives at the VCSD maintained their own files.

Arrangements were then made to meet with Detective Buscher on

October 17, 1991, to review the additional records. Counsel's

concurrent request to review the evidence held at the VCSD was

summarily denied by Nancy Jones, Esq., counsel for Volusia

County. On October 17, 1991, Detective Buscher produced two (2)

vvBanker/sll boxes of materials. He indicated that they contained

everything on the case and that all documents therein had been

previously produced. However upon inspection, it was apparent

that at least one half (%) of the documents had never before been

given to the defense. Due to the volume of documents involved,

counsel asked (over protest by Detective Buscher) to seal the

documents with evidence tape and to return later for the actual

copying.

On November 8 , 1991, when the materials were produced by

Detective Buscher, the seal had been broken, indicating that

someone had gained access to the materials without advising CCR.

8

a

m

a

a

a

a

I,

Detective Buscher represented that his partner had opened the box

because he was looking for another file relating to a different

case. One thousand four hundred forty-seven (1447) additional

documents were photocopied, as were ninety-six (96) additional

photographs.

Mr. Swafford filed a new Rule 3.850 motion on November 21,

1991. The State filed its response on February 10, 1992.

Subsequently, on May 20, 1992, the State filed with the court a

proposed Order Summarily Denying Motion for Post-Conviction

Relief (PC-R. 1227-1233). A copy of this draft order was sent

via regular mail to defense counsel. The circuit court signed

the State's Order on May 22, 1992, before collateral counsel was

advised that the State had prepared a draft or before counsel was

given an opportunity to respond (PC-R. 1233). The Order was

signed verbatim.

As a result of the ex parte communications between the

circuit court and the State, Mr. Swafford filed a Motion for

Rehearing and to Disqualify Judge and Supporting Points of

Authority on June 8, 1992. On June 29, 1992, the circuit court

denied Mr. Swafford's recusal request and rehearing motion. This

appeal followed.

SUMMARY OF ARGUMENT

1. The circuit court denied Mr. Swafford's second Rule

3.850 motion by signing the State's draft order which found that

a second Rule 3.850 motion is barred per se. The circuit court

failed to address Mr. Swafford's contentions that cause existed

which required consideration of the motion's merits. The circuit

court did not accept Mr. Swafford's allegations as true and did

not address: 1) whether Mr. Swafford's prior collateral counsel's

mental, physical, and personal problems which precluded effective

9

a

a

a

a

a

a

assistance constituted cause; 2) whether the State's failure to

comply w i t h Chapter 119 constituted cause; 3) whether the

undisclosed ex parte communications between the judge and the

State constituted cause. Accepting the allegations as true, an

evidentiary hearing is