Appe 1 1 ee .

This proceeding involves the appeal of the circuit court's

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

Mr. swafford filed a Motion to Temporarily Relinquish

Jurisdiction and Hold Appeal in Abeyance. This Court granted

said motion and ordered an evidentiary hearing "for the purpose

of getting the facts regarding Attorney Ray Cass' status as a

special deputy sheriff and ex parte communication between the

March 29, 1993, where the presiding judge made factual findings,

supplementary briefing was granted by this Court.

He relies upon the presentations in his initial brief regarding

any claims not specifically addressed herein.

records, followed by the appropriate page number, are as follows:

"R. - I' - Record on appeal to this Court in first direct

appeal ;

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

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

Motion to Vacate Judgment and Sentence.

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv

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

A. October 1990 Ex Parte Contact . . . . . . . . . . . 1

B. May 1992 Parte Contact. . . . . . . . . . . . . 4

C. Trial Counsel's Status As a Special Deputy

Sheriff. . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . 13

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

CLAIMS WAS ERRONEOUS. . . . . . . . . . . . . . . . . . 14

A ( 3 ) . Ex Parte Communication . . . . . . . . . . . . . 14

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

JUDGE.. . . . . . . . . . . . . . . . . . . . . . . . . 25

TRIAL COUNSEL'S UNDISCLOSED CONFLICT OF INTEREST IN

FLORIDA DENIED MR. SWAFFORD THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER THE SIXTH, EIGHTH AND

CONSTITUTION. AN EVIDENTIARY HEARING IS REQUIRED. . . . 28

CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . 42

I' iii

Cuvler v. Sullivan,

446 U.S. 335 (1980) . . . . . . . . . . . . . . . . 34, 42

E.E.O.C. v. Federal Reserve Board of Richmond,

698 F.2d 633 (4th Cir. 1983) . . . . . . . . . . . . . . 22

Golf City, Inc. v. Ssortinq Goods, Inc.,

555 F.2d 426 (5th Cir. 1977) . . . . . . . . . . . . . . 22

380 So. Zd 1102 (Fla. Dist. Ct. App. 1980) . . . . . . . 41

580 So. 2d 135 (Fla. 1991) . . . . . . . . . . . . . . . 28

Holland v. State,

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

Holloway v. Arkansas,

435 U.S. 475 (1978) . . . . . . . . . . . . . . . . . . 38

Huff v. State,

18 Fla. L. Weekly S396 (Fla. July 1, 1993) . . . . . 22, 27

569 So. 2d 807 (Fla. 1st DCA 1990) . . . . . . . . . . . 21

People v. Washinqton,

461 N.E.2d 393 (Ill. Sup. Ct.),

cert. denied, 469 U.S. 1022 (1984) . . . . . . . . . . . 38

Porter v. Wainwriaht,

805 F.2d 930 (11th Cir. 1986) . . . . . . . . . . . 34, 42

592 So. 2d 669 (Fla. 1992) . . . . . . . . . . . . . . . 42

18 Fla. L. Weekly S414 (Fla. July 1, 1993) . . . . . . . 27

601 So. 2d 1181 (Fla. 1992) . . . . . . . . 14, 18, 20, 27

Simms v. Greene,

161 F.2d 87 (3rd Cir. 1947) . . . . . . . . . . . . . . 22

194 So. 613 (1939) . . . . . . . . . . . . . . . . . . . 20

498 So. 2d 948 (Fla. 1986) . . . . . . . . . . . . . . . 40

774 F.2d 1558 (11th Cir. 1985) . . . . . . . . . . . 34, 42

569 So. 2d 1264 (Fla. 1990) . . . . . . . . . . . . . . 28

584 So. 2d 5 (Fla. 1991) . . . . . . . . . . . . . . . . 28

748 F.2d 125 (3Ykir. 1984) . . . . . . . . . . . . . . 38

581 So. 2d 882 (Fla. 1991) . . . . . . . . . . . . . . . 34

588 F.2d 436 (5th C i r . 1979) . . . . . . . . . . . . . . 39

The previously filed initial brief contains a Statement of

evidentiary hearing held on March 29, 1993. These facts must be

On September 7, 1990, a warrant was signed setting Mr.

Swafford's execution for November 13, 1990.

On October 1, 1990, Jerome Nickerson who was the Assistant

CCR assigned to represent M r . Swafford resigned. The resignation

was effective upon the entry of a stay of execution in Mr.

On October 15, 1990, a Rule 3.850 motion was filed. On

October 18, 1990, a motion to compel production of Chapter 119

materials was filed on behalf of Mr. Swafford.

On October 2 2 , 1990, the State submitted its response

wherein it conceded an evidentiary on Mr. Swaffordls Bradv claim

A status hearing was held on October 24, 1990. The State

State also disclosed in excess of one thousand (1000) pages of

additional 119 material. However, no opportunity to review and

amend the Rule 3.850 motion was provided.

At the March 29, 1993, evidentiary hearing, it was

established that, after the October 24, 1990, hearing, the judge

had his law clerk contact the Assistant Attorney General, Barbara

Davis, and discuss ex parte the contents of an order denying Rule

3.850 relief. Specifically the following facts were found by the

presiding judge at the March 29th hearing:

THE COURT: Rowe. Apparently the Judge,

either the Attorney General's office, Miss

the testimony of his law clerk, Mr. Rowe,

order to be prepared.

And I'll set for what Mr. Rowe was

testifying. 1'11 make a finding of fact that

the Judge did direct his law clerk to call

it looks like it might have been prepared by

to call the State Attornev -- or the Attorney

prepare a proposed order.

And that I'll also find that though Mr.

Rowe attempted to also call the CCR office,

he did that after hours. He apparently

talked to a male voice. Did not ask the

man's name. Did not ask the man's position,

seemed to know what was going on. So, he did

not ascertain the man's name or whether or

or, as pointed out, maybe the janitor in

I find that it was after hours and,

ineffectual as far as at least even DU ttinq

CCR on notice that the Judse had directed

that his clerk call the Attorney General's

office and set a mososed order.

1777-79) (emphasis added).

Swafford's 1990 3.850 motion was llultimatelyll prepared by the

State and that there was no attempt to furnish a copy of the

before it was sisned by Judse Hammond or

the CCR so that it had an o w o r t u n i t v to

review it and an opportunity to file any

objections to the proposed order, as pointed

(PC-R2. 1779)(emphasis added).

not attempt to remedy the situation by arranging a conference

call between the trial court, the State, and the defense counsel

concerning the proposed order denying Mr. Swafford's 3.850 nor

did the law clerk attempt to notify both parties by way of

[THE COURT:] I should make a further

findincs of fact as far as the contact of the

Attorney General's office, there was no

attempt at the time by Judcre Hammond's law

set UD a conference call so at the same time

office he could talk to, YOU know, either

attorney or at least a representative of the

CCR office. N o r , was it done bv way of

written communication, where at least maybe

basicallv the same amount of owortunitv t o

know what was soins on. So, those are the

frankly, at this point I'm going to do

(PC-R2. 1779) (emphasis added).

Because the collateral counsel in October of 1990 received

facsimile transmitted copies of the order, he was completely

unaware of the ex parte contact between the S t a t e and the judge

(PC-R2. 1607-08). He was not in a position to note the type

similarities that alerted subsequent counsel to the ex parte

contact. Counsel in 1990 had Itno information" whatsoever ''that

there had been ex parte contact between the judge and the State

regarding M r . Swafford's case (PC-R2. 1608-09).

A second Rule 3.850 motion was filed on November 21, 1991.

The motion was premised upon a full examination of the Chapter

119 materials and subsequent further disclosures.

The State filed its Response on February 10, 1992.

Subsequently, Barbara Davis, the assigned Assistant Attorney

General, received another phone call from Judge Hammond's law

denying the second motion to vacate (PC-R2. 1579). Pursuant to

order and provided it to Sean Daly, the Assistant State Attorney

to the judge with a copy mailed to M r . Swafford's collateral

counsel on May 29, 1992. The cover letter made no mention of the

judge's ex parte direction to provide the draft order (PC-R2.

1227-1233). The judge, thereafter, signed the order before

collateral counsel had ever received Mr. Swafford's copy.

In December of 1992, collateral counsel learned that Mr.

Swafford's trial counsel, Ray Cass, had received a special deputy

appointment in Volusia County. At the March 29, 1993,

evidentiary hearing, Mr. Swafford was not permitted to present

evidence from Mr. Pearl, co-counsel, and Mr. Cass detailing the

MR. MCCLAIN: For the record I need to

proffer, then, what I would be presenting.

What I would present is I would have Mr.

Pearl, the Volusia County Sheriff's Office

report of March 17th, 1982, indicating Mr.

types of .38 ammunition.

drawing made of the suspect. He also made

made those statements to other people who

'Mr. Swafford sought to introduce the evidence to show that

the special deputy appointments of Mr. Cass and Mr. Pearl led the

dated July 20th, 1982, Mr. Walsh was a

traveling companion. Mr. Lestz gave

one of those victims had been a white female.

Mr. Walsh in that homicide.

report dated August 30, 1982, the third

traveling companion, Levi, implicated -- I'm

Levi is spelled L-e-v-i; Walsh is W-a-l-s-h,

Walsh and Lestz and indicated that the two of

homicide occurred, approximately 6:OO a.m. on

In addition, there is the results of

Lestz' polygraph examination, in which he

failed it and claiming he was not involved.

There's also the Volusia County Sheriff's

report dated January 31st of 1983, indicating

affidavit prepared by Detective Boucher to

prepared by Detective Boucher, he indicated

Walsh liked to burn people while having sex

with them. That there were burns on L e s t z ,

Detective Boucher said were very similar to

a There was where the body was found, but

homicide occurred in a different location.

Again, it is important information as it

implicated Walsh and Levi in the Brenda

Rucker murder. a

Sheriff's Office report dated July 26, 1982.

types of .38 caliber ammunition.

MS. ROPER: Objection, Your Honor. This

is not a proffer. He's reading what's in the

MR. MCCLAIN: I believe I said they're

going to testify to they were not provided

with these documents, and that if had they

have been they would have used them and

presented them to a jury.

MS. ROPER: You presented a list of

documents that could be put into the record,

and instead of having --

MR. MCCLAIN: I don't tell you how to do

a proffer. I'm making a proffer for the

court reporter. If you wish to object,

please make an objection.

MS. ROPER: Well, I object. I don't

plan on --

MR. MCCLAIN: I believe that I'm

entitled under the rules to make an oral

proffer of the evidence that I intend to

produce or wish to produce, but for the

THE COURT: None of this has already

been --

MR. MCCLAIN: M r . Pearl has never taken

were not given to him. He's never taken the

stand and testified that he believes Mr.

Swafford is innocent. He believes these

0 ~. I

would have been pursued and presented at Mr.

Swaffordls trial, either by him if he had

been counsel or by M r . Cass, and Mr. Cass had

THE COURT: Now, I understand, Mr.

McClain, what you're trying to do is a

proffer of what you feel M r . Pearl would have

testified --

MR. MCCLAIN: And will testify to this

here today if allowed.

(PC-R2. 1686-90).

MR. MCCLAIN: I have spoken with Mr.

Pearl several times about this matter. I

has reviewed these documents, and we

categorically state they were not provided to

him at any point in time during his

THE COURT: How about if we just go with

MR. MCCLAIN: It's not going to take

Pearl, then, if he -- you indicated he had

expressed concern about I guess, what does he

life in Lake County?

a MR. MCCLAIN: Yes, Your Honor.

THE COURT: About trying t o get on the

MS. ROPER: I don't have any problem

with excusing Mr. Pearl as long as you're

satisfied with your ruling that he's not

THE COURT: Any problems with me telling

e MS. ROPER: No, Your Honor.

THE COURT: All right. Go ahead and

tell M r . Pearl he's excused.

MR. MCCLAIN: Your Honor, previously --

and I can't find the document right handy.

was the State's response to motion for

rehearing filed back in 1990. The State did

just indicated IIHoward'l on it and 1 believe

there was initials that were supposed to be

So, the State's argument previously has

could not be a Brady claim and that Mr. Pearl

had complete access. There was not any

evidence taken other than the submission of

Continuing on with the proffer, Your

Report dated July 26th, 1982, in which Walsh

was found with various guns, various types of

.38 caliber ammunition. Walsh became

extremely nervous when shown pictures of the

victim's body and refused to state where he

the BOLO of the suspect and would -- and he

explained only that he had gotten it left on

the windshield of his car. Then, in

addition, Lestz and Levi both indicated Walsh

had sold his guns within a day or two of when

A July 23rd, 1982 statement of Lestz,

Again, Lestz met Walsh at the Holiday

Inn in Daytona Beach during that weekend of

the homicide. Levils statement of August

25th, 1982, in which he also implicated Walsh

and Lestz in Rucker's murder, he confirmed

Lestz' statement that Walsh, Lestz and Levi

had been dropped off at a laundromat within

murder and that the other two had left at

sometime prior to 6:OO a.m. on the morning of

the murder and where -- he didn't know of

their whereabouts. And when they came back,

they attempted to get rid of the gun.

Turning to another matter of -- it's the

letters that Roger Harper wrote to Gene

White. There's a letter dated 4/2 of ' 8 4 , a

letter dated 8/12 of ' 8 4 , a letter dated May

16th of ' 8 5 , a letter dated 6/6/ of '85, and

a letter dated August 5th of ' 8 5 . Mr. Pearl

these documents. These documents go to show

Roger Harper's bias and interest and motive

in testifying in the fashion that he did.

There's also a Parole Commission letter

to Gene White dated August 30th of 1985, and

this reflects Mr. Harper's status, parole

documents he had not seen he would have used.

They were important information to present to

the jury in considering Harper's testimony.

MS. ROPER: Your Honor, I think I will

make a proffer. I can guarantee you that

Howard Pearl will not take the stand to say

a deputy sheriff.

m. MCCLAIN: Now that Mr. Pearl's gone,

it's very convenient for Miss Roper to make

MS. ROPER: Well, will you proffer that,

MR. MCCLAIN: I'm proffering that he

MS. ROPER: Fine. That's your Brady

claim. Now, if you want to have a valid

claim here -- never mind.

MR. MCCLAIN: Your Honor, that's my

proffer of what Mr. Pearl would say.

where the body was found on the morning of

not see the body. Mr. Pearl had not seen

He was also unaware of the report dated

reported to park rangers a day earlier than

also unaware of documents indicating that the

crime scene was not secured for two days

proffer .

(PC-R2. 1692-97) .

MR. MCCLAIN: Mr. Cass is going to be

testifying in reference to his status as

what he says about that and she's going to

says, then --

MS. ROPER: I'm not objecting to that,

Your Honor. I am objecting to, I think, the

Cass about these same items he didn't

receive, which is basically a brady claim

THE COURT: Let me ask you this, Mr.

McClain: Now, I don't know if M r . Cass has

what you have just already put on the record

taken the stand in reference to what they

would have done had they known about these

alleged items of evidence.

Is it your understanding that Mr. Cass

would, in essence, say the same things that

you have just put on the record?

MR. MCCLAIN: Yes. Mr. Cass is adamant

Mr. Swafford is innocent, wronslv convicted,

and he feels terrible that he did not set

MS. ROPER: Objection to counsel

MS. ROPER: In lieu of Mr. Cass taking

the stand, that's -- I understood that's what

we did on Mr. Pearl in lieu of Mr. Pearl on

proffer taking the stand and saying the same

thing. Mr. McClain just put on the record

where he understood Mr. Pearl would testify

proffer, since I already said he could not,

as evidence in chief on those issues.

THE COURT: So, the State agrees, at

least as far as just adopting for M r . Cass,

record for Mr. Pearl and in that respect?

MS. ROPER: We would agree to that, Your

Honor. We wanted to hear from Mr. Cass as a

witness as to the circumstances of the

(PC-R2. 1699-1700) (emphasis added) .

find that Ray Cass was issued a special deputy appointment. This

appointment for 111111 make a finding, basically call it political

patronage1' (PC-R2. 1772). " [ I J t I s kind of favors to people in

(PC-R2. 1772).

1. The judge presiding over both Rule 3.850 proceedings

initiated ex parte contact in both proceedings.

law clerk to contact the State and discuss the pending motions in

order to obtain a draft order for his signature. This procedure

denied Mr. Swafford due process. Both orders denying must be

vacated and the case remanded to circuit court for further

He directed his

2. M r . Swafford filed a motion to disqualify Judge Hammond

motion was facially sufficient. It was error for Judge Hammond

9. Mr. Swaffordls trial counsel was a special deputy

sheriff. An evidentiary hearing must be ordered on whether

counsel's status affected his ability to render effective

assistance and/or affected the State's disclosure of exculpatory

Mr. Swafford argued in his initial brief that the State and

the trial court engaged in ex parte communications during Mr.

Swafford's initial 3.850 proceedings and that these

communications were not disclosed by either the judge or the

State. This ex parte contact only became apparent when

which distorted the type and precluded discovery of the ex parte

contact. Mr. Swafford further argued that this undisclosed ex

parte communication must void the prior 1990 3.850 proceedings,

and warrants consideration of the merits of Mr. Swafford's

claims. Rose v. State, 601 So. 2d 1181 (Fla. 1992). In light

of the State's contention in its Answer Brief that there was no

21n the previously filed initial brief, Argument I contained

sections and subsections. The March 29, 1993, evidentiary

the subsection arguing that the undisclosed ex parte contact in

October of 1990 rendered the order denying the motion to vacate

subject to a valid attack in the second Rule 3.850 filed in

November of 1991. In light of the March 29, 1993, evidentiary

hearing, this should probably be a separate free standing

argument. However,to assist this Court in cross-referencing, Mr.

Swafford inserts the designation of Argument I, Sec. A ( 3 ) .

- ex parte contact, M r . Swafford requested a remand to get the

On March 29, 1993, an evidentiary hearing was held "for the

purpose of getting the facts regarding . . . the ex parte

communication between the State and the trial judgett pursuant to

this Court's order. The presiding judge made factual findings,

but reached no legal conclusions. The court, nonetheless, noted

that the factual circumstances in M r . Swafford's 1990 3.850

proceedings were strikingly similar to the factual circumstances

in Rose:

[THE COURT:] As far as the ex Parte

communication -- and I would certainly

concede the language in Rose versus the State

what we have here . . .

Rosels motion, 3.850 motion, and apparently

on the response agreed that an evidentiary

hearing was required. And then apparently

order adopted in his entirety by the Trial

Judge denying all relief. And it goes on to

say that the new trial counsel was not served

with a copy of the proposed order, nor

And they go on, the Sumeme Court, and

this is a direct mote, Vnder these facts,

we must assume that the Trial Court in an ex

certainly, frankly, seems to be the situation

(PC-R2. 1776-77)(emphasis added).

a The presiding judge found that Judge Hammond, Mr. Swafford's

original trial judge, had directed h i s law clerk, Randy Rowe, to

call the Attorney General's office and request a proposed order

to be prepared and that Mr. Rowe was llineffectual" in putting Mr.

Swafford's counsel on notice that Judge Hammond had directed him

THE COURT: Rowe. Apparently the Judge,

either the Attorney General's office, M i s s

Barbara Davis, or the State Attorney's

office, but apparently from h i s testimony and

the testimony of his law clerk, Mr. Rowe,

Attorney General's office, request a proposed

order to be prepared.

And 1'11 set for what Mr. Rowe was

the Judge did direct h i s law clerk to call

the Attorney General's office to have the

proposed order to be prepared, and ultimately

it looks like it might have been prepared by

the State Attorney's office after the

find that Judqe Hammond did direct his clerk

to call the State Attornev -- or the Attornev

And that I'll also find that though Mr.

he did that after hours. He apparently

talked to a male voice. Did not ask the

man's name. Did not ask the man's position,

other than Mr. Rowe said it was someone that

seemed to know what was going on. So, he did

not he was talking to a lawyer, an

I find that it was after hours and,

frankly, I'll make a findins that it was

CCR on notice that the Judse had directed

(PC-R2. 1777-79)(emphasis added).

The court further found that the order denying M r .

Swafford's 1990 3.850 motion was llultimatelyll prepared by the

State and that there was no attempt to furnish a copy of the

proposed order to Mr. Swafford's counsel for review and

[THE COURT:] I'll further find that

before it was sisned bv Judse Hammond or

ultimately an order Prepared bv the Attorney

General or the State Attorney's office was

sisned, there was no attemst to set a COPY to

the CCR so that it had an opportunity to

objections to the srososed order, as Pointed

(PC-R2. 1779)(emphasis added).

Finally, the court found that Judge Hammond's law clerk did

not attempt to remedy the situation by arranging a conference

concerning the proposed order denying Mr. Swafford's 3.850 nor

did the law clerk attempt to notify both parties by way of

written communication giving opposing sides an equal opportunity

to respond:

[THE COURT:] I should make a further

findinq of fact as far as the contact of the

attempt at the time by Judge Hammond's law

set up a conference call so at the same time

he was talkinq to the Attornev General's

office he could talk to, YOU know, either

attorney or at least a representative of the

CCR office. Nor, was it done bv wav of

throush the mail they would have had

know what was qoinq on. So, those are the

(PC-R2. 1779) (emphasis added).

AS noted by the presiding judge at the evidentiary hearing,

Mr. Swafford's case is nearly identical to Rose v. State, 601 So.

2d 1181 (Fla. 1992). As in Rose, Mr. Swafford filed his initial

3.850 and the State filed a response agreeing that an evidentiary

hearing was required (PC-R1. 367). The trial court's law clerk

contacted the State in an ex parte communication and the State

prepared an order denying the 3.850 motion without providing Mr.

Swafford a reasonable opportunity to respond to it (PC-R2. 1574-

In Rose, this Court reversed the denial of Rule 3.850 relief

because it l1appearedIt that the State and trial judge had ex parte

communications during which the State was directed to prepare the

facts we must assume that1' ex parte communication had taken

place. Rose v, State, 601 So. 2d at 1182, 83. However, in Mr.

Swafford's case, no assumption is necessary. A t the evidentiary

was ex parte communication between the trial court and the State

a The trial court's actions in initiating ex parte discussions

with the State regarding the merits of Mr. Swafford's case denied

M r . Swafford his right to have his cas