FILED StD J. WHITE

IN AND FOR VOLUSIA COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

TABLE OF CONTENTS

PAGES :

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

SUPPLEMENT TO STATEMENT OF THE CASE, ........................ 1

SUMMARY OF ARGUMENT , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , . . . , , , 1 7

I & I1 THE CIRCUIT COURT PROPERLY

IX TRIAL COUNSEL'S STATUS AS AN

EVIDENTIARY HEARING WAS HELD BELOW.... ........... 25

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

PAGE :

Brady u. Maryland ,

Christopher u. State ,

489 So. 2d 22 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9

580 So. 2d 135 (Fla. 1991) .......................... 25,27

18 Fla. Law Weekly S396 (Fla. July 1, 1993) ............ 23

Maggio u. Williams ,

601 So. 2d 1181 (Fla. 1992) .......................... g I 2 3

Swafford u. Dugger ,

569 So. 2d 1264 (Fla. 1990) ....................... 9,26,29

569 So, 26 1264 (Fla. 1990) ............................30

584 So. 2d 5 (Fla. 1991) . . . , . . . . . . . . . . . . , . . . . . . , . . . . . . . 2 6

581 So. 2d 882 (Fla. 1991) . , . . . . . . . . . . . . . . . . . * . . . . . . . , . 2 7

SUPPLEMENT TO STATEMENT OF THE CASE

On September 7, 1990, the Governor signed Swafford's death

warrant. On October 15, 1990, a Florida Rule of Criminal

Procedure 3.850 motion was filed by Swafford. A motion to compel

production of Chapter 119 materials was also filed (PCR 1566).

exhibits. It took some time to review them (PCR 1490).

Attorney Sean Daly, who normally handles 3.850 responses, was

involved in the Fotopolos trial (PCR 1566). Ms. Davis prepared a

response in conjunction with Mr. Daly (PCR 1567). On October 22,

1990, the state submitted the response, indicating that an

evidentiary hearing should be limited to two possible claims: (1)

the Brady u. Maryland, 373 U.S. 83 (1963) claim and (2) the

ineffective assistance of counsel claim. The state filed the

response before the judge could ask for it (PCR 1567). The state

had also prepared a proposed order (PCR 1462; D.Ex.C).

limited claims, and the public records issue. (PCR

1574;1582;1588;1600); D.Ex.A). It was faxed to CCR on October

22nd (PCR 1569). Ms. Davis testified that there were over twenty

issues, most of which were procedurally barred. Her position was

that if there was going to be an evidentiary hearing, it should

be on those two issues only. She had an inclination to clear up

certain matters that she felt were untruthful (PCR 1588). She

spoke with Mr. Nickerson on October 19th (PCR 1569). She

hearing on everything. Judge Hammond testified that the

procedure was for the state and the defense to get hearing time

available (PCR 1456) . MK. Nickerson had already noticed the

the scope of it (PCR 1457).

A second "Notice of Hearing" was signed by Ms. Davis and

faxed to Mr. Nickerson on October 23rd (D.Ex.B), This second

order deleted reference to an evidentiary hearing being conducted

an October 24th and there was also no mention of the motion to

compel records (PCR 1602). Ms. Davis testified that she did not

remember why this order was different. She did not know if there

was going to be a hearing on public records, ineffectiveness or

whatever, and she felt there should be a notice of hearing (PCR

received two notices of hearing one day after the other (PCR

1601). Mr. Nickerson testified in contradiction to Ms. Davis

that there was no conversation with Ms, Davis concerning the

to take steps to be prepared for the possibility that the judge

would instruct them to go forward (PCR 1600; 1602). He testified

was working as lead counsel on the Jerry Lane Rogers case for

the following day, October 25th (PCR 1600-01). Mr. Nickerson,

however, had also prepared a notice of hearing setting the case

for hearing on October 24th, as previously mentioned (PCR 1614

S.Ex.C.). He termed this "an effort to expedite" as he was

attempting to have public records turned over so he would be able

to sooner amend his 3.850 motion (PCR 1599). The notice,

however, called up all other pending motions including the 3.850.

have had an evidentiary hearing on the 24th (PCR 1613). Judge

Hammond testified that his office encourages both parties to come

to some date that is convenient with his schedule. It would

Mr. Nickerson also had prepared an order reflecting his

Thus, Judge Hammond, at that point in time had unsolicited orders

from both parties. Because of the exigencies of time in death

warrant litigation it was normal for the State Attorney or the

Attorney General's Office to prepare responses and orders without

solicitation (PCR 1583).

A status hearing was held on October 24, 1990, at which

time Chapter 119 material was turned over to Swafford. Mr,

Nickerson objected to the state submitting an order. (The

disagreement as to what should be in the draft orders was raised

on appeal) (PCR 1593). It was CCR's pasition that the proposed

order was full of erroneous legal positions, factual

barred and the judge should not sign the order (PCR 1495). At

the end of the hearing the judge took matters under advisement

Approximately a week later, Judge Hammond's law clerk,

Randy Rowe, called Ms. Davis and told her the judge was summarily

denying the 3.850 motion and there would be no evidentiary

hearing (PCR 1575). Judge Hammond had asked him to contact Ms.

Davis and request a proposed order and to notify CCR that he had

requested the order from her (PCR 1649). The judge decided what

position to take before he instructed his clerk to obtain an

order (PCR 1479). He was not soliciting further argument from

the parties (PCR 1498). Mr. Rowe inquired if Ms. Davis still had

the proposed order on her word processor, which she did, and then

asked if she would prepare an order. She indicated that she

would and he read her changes which she typed as they were read

(PCR 1575). Ms. Davis testified that she did not discuss the

merits of the case with Mr. Rowe at all (PCR 1583-4). Mr. Rowe

also testified that he didn't believe he had discussed any of the

merits of the case. It was an administrative type thing (PCR

1650). He just read the changes and she typed them in. He told

her exactly what to type. He asked her to cite Strickland u.

Washington, 466 U.S. 668 (1984), in each instance of

ineffectiveness (PCR 1583-84). She did not make any changes that

the clerk was unaware of on her own initiative (PCR 1584). She

gave it to one of the state attorney's investigators who took the

original to Bunnell (PCR 1575).

CCR that evening and asked for Mr. Nickerson. A man answered the

phone, said he had gone out for food, didn't know when he would

return, and suggested that he take a message. M r . Rowe told him

proposed order from the Attorney General's Office. He told him

the same thing he had told MS. Davis. The man indicated that he

would pass it on to MK. Nickerson. Mr. Rowe was under the

impression that the man was writing it down because he had asked

him to repeat a couple of things. He assumed that he relayed the

message (PCR 1651-53). The person who answered the phone seemed

knowledgeable about the case. He assumed he was an attorney or

involved with cases (PCR 1661). He had expected Mr. Nickerson to

be there as he often stayed at the office and actually slept on

the couch at night (PCR 1661). Mr. Nickerson never returned his

call (PCR 1651-1653). Mr. Rowe assumed Ms. Davis would provide a

copy to the other side (PCR 1655).

had known the judge's office had contacted the state and asked

for a draft order summarily denying the 3.850 motion (PCR 1606).

He claimed that he never received the message from Mr. Rowe (PCR

1614). Assistant State Attorney Sean Daly testified that "it was

very seldom that you could call CCR and get somebody the first

time and if they don't feel like calling you back, they don't

call you back. 'I (PCR 1641). Ms. Davis does not recall advising

Mr. Nickerson that Judge Hammond's law clerk had called and asked

her to draft the order (PCR 1578). She indicated that at oral

the order (PCR 1585). Mr. Nickerson testified that he had no

indicating he knew she had typed the order. If he had known that

she had typed the order, he indicated that he would have listed

that first as grounds for rehearing and would have appealed to

this court (PCR 1608-09).

Judge Hammond signed the revised order on October 30, 1990.

(PCR 1576; D.Ex.D). It was filed in the Clerk's Office on

October 31st (PCR 1465). The proposed order of the state and the

order ultimately signed by Judge Hammond were significantly

indicated that there would be no evidentiary hearing and

summarily denied relief (PCR 1582). Judge Hammond testified that

he did not rubber-stamp the state's proposed order (PCR 1492).

of the order. H e testified that it was not his practice to

refuse to consider objections to any proposed order. Counsel

appropriate and he has to take them into consideration (PCR 1499-

Office to CCR the same day (PCR 1576). Ms. Davis testified that

coming. A footnote on the front page of Swafford's motion for

rehearing indicates Mr. Nickerson received the faxed order at

6:38 p.m. on Tuesday, October 30 (PCR 1576) Ms. Davis testified

that she thought the machine was off an hour because of the time

change and it was more like 5:37 p.m. when it was faxed (PCR

1576). She thought the judge's office had called Mr. Nickerson

and then he called her and asked for a copy of the order (PCR

1577). On cross examination Ms. Davis indicated that she

recalled Mr. Nickerson calling her and asking if she would fax

the order. She indicated that she may have called him and left a

message (PCR 1590). Mr. Nickerson has no recollection of calling

Ms. Davis and requesting a copy of the fax (PCR 1608). On

redirect she indicated t h a t she had no way of knowing how Mr.

Nickerson found out. She didn't know if he had heard through the

Supreme Court of Florida. She had faxed the order to this court,

and t h e United States District Court (PCR 1591-92). Mr.

Nickerson remembers the fax coming across in the evening. He

testified that he may have gotten a call from the Florida Supreme

Court that tipped him off that something was moving (PCR 1608).

Swafford subsequently filed a motion for rehearing on

November 1, 1990 (PCR 1576; S,Ex.A). The motion contained

improperly found the discovery violation would not have affected

the outcome; the provisions of Kokal u. State, 562 So. 2d 324 (Fla.

1990), and Provenzano u. State, 561 So. 2d 541 (Fla. 1990), were not

arguments similar to those made in objections to orders Judge

Hammond has prepared or proposed orders the other side has

prepared (PCR 1482). Judge Hammond has regularly seen that type

of argument in objections to orders (PCR 1484). Had Swafford

chosen to file abjections instead of a motion for rehearing he

would have entertained them (PCR 1485). He would have expected

corrections, disagreement and dissatisfaction from anybody in

such a case (PCR 1484). The state filed a response (PCR 1608;

D.Ex.N). An order denying rehearing was entered November 2, 1990

(PCR 1580). Judge Hammond stated that he gives serious

consideration to arguments made in motions for rehearing (PCR

1484). After reviewing the motion for rehearing his position

didn ' t change. He thought the state was correct in their

position (PCR 1485). The orders were done with some

consideration and study (PCR 1483). When he makes a decision

after looking at several hundred or a few thousand pages of

transcript he has pretty well made up his mind (PCR 1483). He is

satisfied that he ruled according to the law (PCR 1483). Ms.

Davis testified that she did not recall doing the order denying

rehearing but she was typing the style of the case backwards and

this one was typed in that fashion (PCR 1580).

At the conclusion of the evidentiary hearing on March 29,

1993, Judge Hutcheson found that: (1) Judge Hammond had directed

Mr. Row@ to call the Attorney General's Office and request that a

complied with; Swafford has learned of new evidence concerning

claims I and IT and the court erred in ruling Swafford had failed

to establish mitigating evidence to be adduced by a mental health

professional, 0

proposed order be prepared. ( 2 ) Mr. Rowe did not use written

communications or attempt to set up a conference call. He did

attempt to call CCR, after hours, but spoke only to a male voice,

did not ascertain the man's name or position, whether he was a

lawyer, investigator, paralegal, secretary or maybe the janitor,

(although it was someone who seemed to know what was going on)

which was ineffectual as far as putting CCR on notice that a

proposed order had been requested. ( 3 ) There was no attempt to

get a copy of the proposed order to CCR before it was signed by

Judge Hammond so CCR had an opportunity to review it and file

objections as pointed out in Rose u. State, 601 So. 2d 1181 (Fla.

1992) (PCR 1777-79).

This court had affirmed the denial of the 3.850 motion.

Swafford LI. Dugger, 569 So.2d 1264 (Fla. 1990). A petition for writ

District Court, Middle District of Florida. Relief was denied on

November 15, 1990. The United States Court of Appeals for the

Eleventh Circuit ultimately stayed Swafford's execution and set a

briefing schedule. Swafford subsequently filed a second 3.850

The second 3.850 motion was filed on November 21, 1991.

The state filed its response on February 10, 1992. There was a

s i x week gap in which Sean Daly was ostensibly preparing an order

(PCR 1586). Ms, Davis then received a phone message in April

from Mr. Rowe which indicated that she should submit a draft

order (PCR 1595). She did not personally speak to him on the 8

telephone, received no directions, was not told what to put in

the order, and did not discuss the merits (PCR 1585; 1594). She

called her about a draft order. She called Mr. Daly and said

"The judge has contacted this office, you take care of it." (PCR

1580). Mr. Rowe remembered calling CCR. The policy was always

to speak to both sides when requesting an order. He could not

remember who he spoke to or what attorney was involved in the

case at that time (PCR 1653-54). Ms. Davis typed the order and

gave it to Sean Daly. She received back a courtesy copy (PCR

1586). Mr. Daly sent the order to the judge and mailed a copy

with a cover letter to CCR on May 20, 1992 (PCR 1476 D.Ex.G & H).

Judge Hammond signed the order on May 22, 1992 (PCR 1474-

76; D.Ex.G, H) . The order was not filed in the Clerk's office,

however, until June 9, 1992 (PCR 1 4 7 4 ) . Judge Hammond testified

that counsel frequently request a matter to be heard again or

clarified and that CCR would have had an opportunity to object

things but requested nothing (PCR 1476). Judge Hammond had

previously noted that members of CCR's staff have contacted his

office several times (PCR 1448). Mr. Rowe testified that the

other side can always object to a proposed order. They hold up

sending an order o u t if there is an objection to it (PCR 1672).

was filed he took no action to prevent Swaffosd's counsel from

submitting a proposed order. He would not have discouraged or in

any way interfered with t h a t . Up until the time of his order of e

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May 22, 1992, any party could have submitted proposed orders (PCR * 1486).

Swafford subsequently filed a motion for rehearing and to

disqualify the judge (PCR 1487; D.Ex.B). Judge Hammond testified

that he gives careful consideration to motions for rehearing,

would have given careful consideration to the arguments of

previously argued. He probably would have had the c l e r k do some

research and would have discussed the matter in detail (PCR 1487-

88). The motion was denied on June 29, 1992 (PCR 1512; D.Ex.J).

Judge Hammond testified that his position wouldn't have changed a

instead of "Motion for Rehearing. 'I (PCR 1488).

Briefs were subsequently filed in this court on appeal from

the second denial of post conviction relief. Jurisdiction was

relinquished for a hearing on the issue of ex parte contact as

well as on the issue of Assistant Public Defender Ray Cass'

Judge Hutcheson took judicial notice of the testimony of

now deceased Sheriff Duff in the case of Hurich u. State, 573 So. 2d

303 (Fla. 1990). He also allowed transcripts of the testimony of

Sheriffs Moreland and Knupp in the omnibus hearing ordered by

this court on the "Howard Pearl/Deputy Sheriff" issue, raised by

numerous death row inmates, over the state's objection that they

were not even sheriffs of those separate counties outside Volusia

County at the relevant time and that the effect of the honorary

Volusia County card was beyond their expertise (PCR 1548-1550).

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As this court is aware from its review in the Harich case,

the card for good will and/or political purposes. The card was

and was even issued by the sheriff to newborn babies. 573 So. 26

at 304.

Assistant Public defender Raymond Cass testified below that

he was assigned to litigate capital cases in September, 1983. He

and Howard Pearl prepared the Swafford case together and he tried

it. Mr. Cass handled all phases of the trial (PCR 1708-09).

Sheriff Duff of Volusia County also gave him a "Special Deputy"

card (PCR 1709). At one time Mr. Cass indicated he received the

card in 1978 but testified that he was pretty sure that he was

given the card prior to Swafford's trial, late in law school, or

when he was admitted to the bar or shortly thereafter, sometime

between 1968 and 1971 or 1973 (PCR 1710; 1712; 1723). He did not

s o l i c i t the card from Sheriff Duff. He had known Sheriff Duff

since 1955 or 1956 (PCR 1713). Sheriff Duff never told him the

purpose of the card (PCR 1712). He perceived the card as an act

of niceness or a goodwill gesture (PCR 1711; 1714).

relief and a petition for writ of habeas corpus that Howard Pearl

had a conflict of interest because he was also a special deputy

sheriff while he represented Swafford. The denial of relief was

affirmed by this court because Pearl's involvement in the case

was minimal and Swafford could not have been prejudiced. Swafford

u. Dugger, 569 So. 2d 1264, 1267 (Fla. 1990); Swaff0r.d U. Singletai-y,

584 So. 2d 5 (Fla, 1991). rl)

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The card was a little bigger than a personal calling card

(PCR 1710). His name was typed on the card. The sheriff's

signature did not appear to be an original but was put on the

card at the time of printing (PCR 1722). He felt that the card

Sheriff Duff left office i n 1986 (PCR 1713). Duff was s t i l l the

Sheriff at the time of Swafford's trial (PCR 1 7 2 4 ) .

Mr. Cass did not make the card a secret. If anyone had

asked him about it before 1990 he would have revealed its

existence (PCR 1 7 2 0 ) . He testified, in fact, that he told CCR he

Sheriff hearing before Judge Driver in December 1992. He

voluntarily told CCR he had such a card prior to 1990. He was

present in an interview and said "Well, I have one, too,"

although he did not have one from Marion County (PCR 1719). He

was interviewed by CCR last fall or winter in connection with the

sheriff (PCR 1 7 2 5 ) . He gave a deposition in anticipation of an

and indicated that Sheriff Duff had given him a card (PCR 1709).

Mr. Cass further testified that the card was not useful to

him (PCR 1712) He didn't really consider the card to be worth

anything (PCR 1717). If he was stopped late at night by a

occasion never occurred (PCR 1 7 1 2 ) . He never used the card to

receive a benefit or an advantage (PCR 1716). He did not need

the card as a gun toter's permit. He was an investigator for the 0

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State Attorney. He was also a civil police officer in Daytona

Beach Shores, with powers of arrest, which enabled him to carry a

gun. This appointment was nullified before he was sworn in at

the Florida Bar (PCR 1714; 1716) or after he got back from

Houston from a public defender's college in August 1973 (PCR

Sheriff Duff never indicated that he had powers of arrest

(PCR 1 7 1 5 ) . He never issued him a gun, badge or uniform (PCR

1716). He never called upon him to perform the duties of a

deputy. He never made a stop. He never made an arrest (PCR

1715). Mr. C a s s was never compensated by Sheriff Duff (PCR

Mr. Cass did not consider himself to be one of Sheriff

Duff Is deputies and did not want to be a deputy (PCR 1714). He

did not perceive himself as having the powers of a deputy sheriff

or arrest powers (PCR 1715). He told CCR that no powers were

conferred upon him by virtue of receiving the card (PCR 1720).

Swafford (PCR 1720).

Mr. Cass stopped carrying Sheriff Duff's card about the

same time that he started his practice (PCR 1717) in 1973. He

put it in a memorabilia box in his bedroom. He couldn't find it

for the December 1992 "Howard Pearl" hearings (PCR 1722). He

never notified Sheriff Duff that he didn't want his card anymore

believe he had given him a commission in the first place (PCR

- 14 -

Present Sheriff Vogel's secretary Sharon Phillips testified

the sheriff, She witnessed him hand out the cards to "most

hers. If someone in the department had a baby it was given a

card. She testified that it was a PR type card. She doubted

that it would have gotten her out of a traffic ticket (PCR 1727-

attorney Ray Cass was issued a card from Sheriff Duff. It was

family supported Sheriff Duff when he ran against Sheriff

Thursday back in the mid to Late 50's. The cards were handed out

by Sheriff Duff as political patronage or favors to people in the

hope that maybe they would think kindly toward him if he was up

for election again or speak favorably on his behalf to others

(PCR 1772). Mr. Cass was given the card sometime in the 6 0 ' s or

early 7 0 ' s . He quit carrying the card somewhere around 1971 to

1973. He put it in a box on his dresser. This would have been a

full ten years before the instant crime was committed, which was

in 1983. The card became lost or was thrown away. Cass was

given no duties to perform. He expected no benefits other than

maybe getting out of a speeding t i c k e t by showing the card (PCR

1 7 7 3 ) . He had no duty to arrest anyone. The card was not

offered for the purpose of carrying a firearm or a concealed

weapon. If, in fact, he was expecting any benefits from the card

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he quit worrying about them by 1971 to 1973 when he quit carrying

the card. This was t e n years or more before the murder. By

1983, he was not even carrying the card so he could not expect

honorary. The card that Sheriff Vogel's secretary has, which is

"Special Deputy Sheriff" (PCR 1774). It has a blank for typing

Sheriff, to serve and execute all legal papers and processes in

Volusia County, Florida, with full power to act as Deputy Sheriff

of Volusia County until my term expires or this appointment is

revoked." There is a place for the date. A signature line

follows. Underneath the signature line is the word "Sheriff. 'I

The card would then bear the signature of Sheriff Duff. On the

backside it has "duration indefinite. Investigation" (PCR 1775).

Judge Hutcheson found that this type of card was issued to Mr.

Cass but he quit carrying it anywhere from 1971 to 1973, so he

could not show it to anyone to get out of a speeding ticket or

anything else, some ten years or more before this incident came

up (PCR 1776).

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I & 11. Contact between the judge's clerk and the state should

not void 1990 proceedings because post conviction counsel argued

against the state's position and its proposed order and had the

opportunity to criticize the judge's findings in a motion for

rehearing and the state only ministerially typed changes at the

clerk's behest and had no discussion with the judge, who had

reached a decision before the contact. Post conviction counsel

had ample opportunity in 1992 to prepare its own proposed order

and by virtue of delay should not acquire critiquing rights as to

IX. Prior to 1990 CCR knew that MK. Cass had a deputy sheriff's

card and could have raised the issue in the first Florida Rule of

Criminal Procedure 3.850 motion. No conflict existed by virtue

of PR card conferring only honorary deputy status.

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I & TI THE CIRCUIT COURT PROPERLY

DENIED THE MOTION TO DISQUALIFY THE

JUDGE AS WELL AS SWAFFORD'S POST

were two incidents of ex parte contact between the state and the

circuit court judge and that his contention that Judge Hammond

engaged in ex parte communications with the state constitutes

Judge Hammond's refusal to disqualify himself was reversible

error and this court must set aside the order denying Swafford's

Swafford contends that he should be put back in the position he

was in before all ex parte contact occurred and should be returned

to circuit court for consideration of his initial Rule 3.850

t h i s case was only for expansion of t h e record in support of

existing claims, in particular the issue whether the motion to

disqualify should have been granted (PCR 1437). Counsel

continued "And so, really, the issue is not whether there was ex

parte contact but whether I, in good faith, looking at the record

and the state of the record, could believe that there was ex pal-te

contact because that's the point of view the motion is made.

It's from my point of view, Mr, Swafford's point of view, a

motion to disqualify; and under the law, the facts contained in

it must be taken as true... the question isn't for you to decide

whether there's ex parte contact, because what does that lead to?

That's not the issue, The issue is: Should Judge Hammond have

granted the motion to disqualify, which is different. so I

therefore, this is simply record expansion." (PCR 1438).

Pursuant to Swafford's theory of the case relief is not

warranted. As fully argued in Point I1 of the Answer Brief of

Appellee, the affidavits in support of the motion to disqualify

were legally insufficient; the motion to disqualify was not

prompt a reasonably prudent person to fear that he or she could

not get a fair trial. Under analogous federal law an appearance

of impropriety would not be created by the circumstances of this

See, In re Colony Square Co., 819 F.26 272 (11th Cir. 1987). It

matters l i t t l e that ex parte contact could be discerned from the

record on remand since the facts must be taken as true in a

motion to disqualify anyway.

There was no secretive ex parte contact in this case. The

contact was not divulged by the state because there was no reason

to believe Judge Hammond's clerk would not also be contacting

CCR, particularly under warrant conditions. Judge Hammond had no

was not in the information loop. The clerk was not aware that

the CCR lawyer did not get the message. Messages are hardly

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uncommon in warrant situations. There seems to be a total lack

of intent to even indulge in what could be characterized as "ex

partel' contact. The lower court, in fact, seemed to base its

decision on the fact that CCR was insufficiently noticed (PCR

The undisclosed contact should not void prior 1990

proceedings. The <