$10 J, WINE

CASE NO. 85,682

STATE OF FLORIDA,

ROBERT A. BUTTERWORTH

Florida Bar # 0302015

Office of the Attorney General

ORAL ARGUMENT

A summary denial was properly entered in this case. There is no issue to air. The

case will rise or fall upon a lengthy procedural history and a determination of the propriety

of the application of procedural bars none of which topics would be better elucidated by

TABLE OF CONTENTS

ORAL ARGUMENT ................................................................................................. .i

TABLE OF CONTENTS ......................................................................................... ..ii

... TABLE OF AUTHORITIES ....................................................................................... 111

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

SUMMARY OF ARGUMENT .................................................................................. 14

I . THE CLAIM THAT SWAFFORD WAS DEPRIVED OF HIS RIGHTS TO DUE

INNOCENCE IS PROCEDURALLY BARRED ..................................................... 15

CONCLUSION ....................................................................................................... .17

CERTIFICATE OF SERVICE .................................................................................. 17

CASES: PAGE :

373 U.S. 83 (1963) ................................ 8,14,15

112 S.Ct. 2926 (1992) ................................... 10

591 So, 2d 911 (Fla. 1991) ............................. 16

408 U.S. 786 (1972) .................................... 16

564 So. 2d 120 (Fla. 1990) ............................. 15

570 So. 2d 289 (Fla. 1990) ............................. 16

569 So. 2d 1264 (Fla. 1990) ............................. 8

No. 846-Civ-Osl-18 (M.D. Fla. Nov. 15, 1990) ............ 9

584 So. 2d 5 (Fla. 1991) ................................ 9

489 U.S. 1100 (1989) .................................. 1,6

636 So. 2d 1309 (Fla. 1994) ............................ 10

561 So. 26 557 (Fla. 1990) .......................... 15-16

F1a.R.Crim.P. 3.850(b) ..................................... 15

F1a.R.Crim.P. 3.850(f) .................................. 15,16

STATEMENT OF THE CASE AND FACT$

Roy Swafford is a prisoner on death row. A jury convicted Swafford of th a firstdegree

murder and sexual battery of an employee he abducted from 8 Fina gas station

and recommended that he be sentenced to death, which the trial court did. The Supreme

Court of Florida affirmed the convictions and sentence. Swafford v. Sate, 533 So.2d

270 (Fla. 19881, ced. denied, 489 US. 1 I00 (1989)

The evidence at trial showed that on the morning of Sunday, February 14, 1982,

of U.S. Highway No. 1 and Granada Avenue in Ormond Beach, Florida. Two witnesses

saw her there at 540 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 later. On February 15, 1982, the victim's body was found in a wooded area by

a dirt road, about six miles from the FlNA Station. She had been shot nine times, with

two shots directly 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 the victim's body, the medical

corresponding to the bullet wounds to her torso indicated that she was fully clothed when

shot. The number of bullet wounds and the type of weapon used indicated that the killer

recovered from the body.

Swafford and four companions drove from Nashville, Tennessee, to Daytona

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 went

out again, not to return until early Sunday morning. Patricia Atwell, a dancer at the

Shingle Shack bar testified that Swafford was there with his friends on Saturday night,

that they left at around midnight, and that Swafford returned alone at about 1:OO 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 US. 1,

a course that would have taken him by the FlNA station. In the light traffic conditions of

early Sunday morning, the FlNA station was about four minutes away from the Shingle

date in question at 7:04 a.m. The body was found one and a half miles from the campsite

in Tomoka State Park. (R 798;842;854)

On Sunday Swafford and his friends attended an auto race in Daytona Beach.

That evening they went back to the Shingle Shack, where one of the party got into a

dispute with some other people over money he had paid in expectation of receiving some

drugs. Swafford displayed a gun and got the money back. Chan Hirtle and Roger Harper

pocket. (R 807;859;812;960) This gun looked "exactly" like State's Exhibit 14. (R 810)

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

bathroom trash can. (R 1094) Swafford was arrested, the police seized the gun, and

used to kill the victim. The evidence also showed that Swafford had the gun for some

time. (R 81 1) The gun was stolen from Nashville, Swafford's hometown, several months

before the murder. (R 1026, 1028, 1 158-1 159) Swafford told his friends in the car on the

return trip that he was mad the police had seized "his gun." (R 814; 848) Although the

gun was not tested until more than a year after the murder, after authorities received a

tip concerning Swafford's possible involvement, evidence established the chain of police

custody and the identification of the gun.

The state also presented evidence that Swafford made statements from which an

inference of his guilt of the crimes charged could be drawn. Two months after the murder a

Swafford's car. They got a six-pack and started riding. Swafford indicated to Johnson

he wouldn't have to worry about anything, the way he was going to get a girl. He

Swafford would get rid of her and shoot her in the head. Swafford said I'll shoot her in

the head twice and I'll make damn good and sure that she's you know, she's dead.

Swafford replied "It does for a while, you know, you just get used to it." Johnson told the

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, Johnson at that point refused to participate

further and demanded to be taken back to his truck. Prior to trial Swafford and another

inmate managed to escape. They and a female accomplice holed up on the third floor

of Fish Memorial Hospital. (R 1224) While there Swafford called a Daytona Beach News

himself as "Roy" and Wice during the conversation said "We're both murderers." (R 1228)

He later confirmed the accuracy of the quote to the reporter. (R 1231-1232)

The defense called Paul Seiler who had told the police that he had seen the young

lady behind the counter at the FlNA station at 6:17 a.m. on the day of the crime, then

noticed that she walked outside followed by a man in a flannel shirt. (R 1265) The man

got in a 1975 Monte Carlo or 1971 Impala and headed north. (R 1266-1267; 1286) He

man to the police as a white male, late twentiesiearly thirties, 160 to 170 pounds, 5'10"

to 6' tall, with brown hair with a reddish tint, wearing a long sleeve blue or brown flannel

shirt and bluejeans. (R 1269) Swafford was 34 years old, 165 pounds, 5'8"tall, is white

and has brown hair. (R 1558) But Seiler said he only glanced at the individual at the Fina

station and didn't know how close his description was to reality. (R 1271) When

questioned about the very detailed description noted in police reports Seiler didn't recall

giving much of the information and said "I really don't know where I could even come up

with something like that because I didn't get that good of a look at him.'' (R 1280) The

defense then sought to introduce the police bulletin and the testimony of the officer who

identification of the person he had seen; he only gave a description.

by a vote of 10 to 2. Judge Hammond sentenced Swafford to death for the murder and ~

to life in prison for the sexual battery. (R 1493; 1502-1507) The sentencing court found

in aggravation that the murder (1) was committed for the purpose of avoiding or

preventing a lawful arrest; (2) was especially heinous, atrocious or cruel, based on the

such a way as to show a wanton atrocity as Swafford fired nine bullets into the victim's

body, most of them directed at the torso and extremities; (3) was cold, calculated and

premeditated based on the fact that Swafford shot the victim nine times including two

shots to the head at close range and that he had to stop and reload his gun to finish

carrying out the shootings; (4) that Swafford committed the murder while engaged in, or

in flight after, committing sexual battery; and (5) that Swafford was previously convicted

of a felony involving the use of threat or violence to a person in that on January 10, 1983,

he was convicted of burglary with assault and sentenced to 30 years. Testimony was

trial court found that one item of information adduced by the defense constituted a

nonstatutory mitigating circumstance. Based on the parties' stipulation that Swafford's

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 entitled to very

little weight in mitigation, commenting that it did "demonstrate that the Defendant, at some

point in his life, had training and supervision that should have led him to become a lawful

contributing citizen." Swafford v. State, 533 So.2d 270 (Fla. 1988).

On September 7, 1990, Governor Martinez signed a death warrant setting

execution for November 13. On October 15, 1990, Swafford filed his first Florida Rule

of Criminal Procedure 3.850 motion. Judge Hammond held a preliminary hearing on

October 24, 1990, and on October 30th summarily denied the motion without an

perjured testimony and withheld documents relating to other suspects. See, also

Swafford's initial brief on appeal from the denial of 3.850 relief in Case No. 76,884, pp

38-71; (R 52-90A) Swafford complained that the Volusia County Sheriffs Office did not

turn over the name of James Michael Walsh, who was considered to have been the most

likely individual to have committed the crime. Walsh was arrested in Daytona with the

BOLO in his back pants pocket. Swafford alleged that Walsh so closely resembled the

BOLO that when he was later apprehended in Arkansas for jumping his bond in Daytona

investigation by the police allegedly revealed that Walsh tolaMichael Lesk that he killed

three people while he was in Florida and one of them was a woman; he was present in

Daytona at the time of the murder; was accompanied by two colleagues, Walter Levi and

Lestz; normally committed breaking and entering crimes in early morning hours; had a

history of sadistic activities; normally carried a .38; had picked Lestz and Levi up or

dropped them off at the intersection where the Fina station was located; was solicited by

a "B. J." to kill the Dunn brothers for $1 0,000; and burned Lestz with a cigarette over fifty

times. Police indicated in an affidavit that the burns closely resembled burns found on

left a motel room at 6:OO a.m. on 2/14/82 and Lestz told Walsh that Levi could not be

Lestz did not know where they had gone. Investigators gave Lestz three different

murder and whether he had any knowledge regarding the murder. Swafford further

alleged that Walsh had connections to Tennessee, the state from which the alleged

murder weapon was stolen. A VCSO report dated 8/3/82 indicated Walsh's wife was

suspected of having carried the victim was in or around Knoxville or Clarksville, Swafford

blocks of the Fina station, which was also within one block of B.J. Arkansas police were

various types of ammunition which was significant since the police recovered five different

types of .38 bullets from the victim's body during autopsy. Swafford also alleged that the

state failed to reveal it had interviewed Walsh, described in a July 1982 report of

Detective Buscher, in which Walsh denied being contacted to kill anyone; viewed photos

of the Rucker homicide and became upset, nervous and unsure of his statements; would

not relate his whereabouts from 2/14 - 2/15, 1982; and indicated he got the composite

from a food store and retained it as a matter of curiosity. Swafford complained further

that the state withheld evidence that less than forty-eight hours prior to the Rucker murder

someone robbed a Majik Market in Holly Hill and a witness provided a composite drawing

of the suspect which did not resemble Mr. Seiler's composite. The state is said to have

further failed to reveal that on February 19, 1982, someone called and said two

Surfside in Daytona Beach. Lestz had told Investigator Charles Brown that he met Walsh

at the disco of the Holiday Inn. The state is further alleged to have withheld another

taped statement of Levi on May 19, 1983, in which he stated Lestz always had a .38 on

him and Walsh had one as well. When given a sample polygraph question "Do you know

Brenda RuckeV," Levi replied "Yeah" then corrected himself claiming he didn't understand

the question. The trial court found that no Bfady v. Maryland, 373 US. 83 (1963),

information he claimed the state withheld. The court concluded: "There is no possibility

that the result of the proceeding would have been different even if all this information

were available." The Supreme Court of Florida entered a temporary stay and then

affirmed the trial court and denied Swafford's petition for writ of habeas corpus, as well.

Swafforrl v. Dugger, 569 S0.2d 1 264 (Fla. 1990). The court stated 'I Swafford has shown

no error in the court's ruling, and we hold that the court correctly refused to hold an

evidentiary hearing on this claim." 569 S0.2d at 1267.

Swafford subsequently filed a petition for writ of habeas corpus in the United

All relief was denied by G. Kendall Sharp, United States District Judge on November 15,

evidence. Swafford v. Dugger, No. 90-846-Civ-Orl-18 pp 9-12 (M.D.Fla. November 15,

1990); (R 96) From the record Judge Sharp also determined that defense counsel did

learn of numerous suspects during the deposition of Lt. Bushdid. The district court further

would not have affected the outcome of the trial. The court also noted there was no

Swafford then appealed the denial of habeas relief to the United States Court of

Appeals for the Eleventh Circuit. He filed in that court a motion to hold proceedings in

abeyance pending resubmission of Brady and related issues to the Florida State courts.

Such motion was predicated on the premise that the state of Florida was continuing to

In May 1991 , Swafford had filed a second habeas petition, arguing an alleged

conflict of interest of his trial attorney, Howard Pearl, which the Supreme Court of Florida

denied. SwafTord v. Singletary, 584 S0.2d 5 (Fla. 1991).

In November 1991, Swafford filed a second rule 3.850 motion. Judge Hammond

summarily denied it without an evidentiary hearing in May 1992, as well a5 a motion for

rehearing and disqualification. Swafford again appealed the denial of relief to the

Supreme Court of Florida and also moved for relinquishment of jurisdiction, arguing the

a conflict of interest and whether Judge Hammond engaged in improper ex park

communication with the state. In January 1993, the Supreme Court of Florida granted

Swafford's motion to relinquish jurisdiction. On March 29, 1993, Judge Hutcheson held

Supreme Court of Florida affirmed the denial of relief finding that no improper ex parte

communications occurred and that Cass had no conflict of interest due to his having bean

given an honorary deputy sheriffs card by a previous sheriff. Swaflord v. State, 636

So.2d 1309 (Fla. 1994). The claims that Chapter 119 and other Srady violations

establishes Swafford's innocence; counsel was ineffective at the penalty phase; and that

there were constitutionally invalid penalty instructions and the improper application of

aggravators were found to be procedurally barred because they were or could have been

raised previously. In footnote 5, the court noted that at the October 1990 hearing CCR

attorney Jay Nickerson said that everything he had requested under Chapter 11 9 had

been disclosed except for some things from the Ormond Beach Police Department and

the seventh circuit state attorney's office. Representatives of those offices were present

officer's personal notes. Nickerson then said that the fourteenth circuit state's attorney

office had complied and that he was satisfied with the Chapter 119 disclosures. 636

So.2d at 131 1 An Espinosa v. Florida, 112 S.Ct. 2926 (1992), claim was also found not

to have been presewed. ld. On April 29, 1994, Swafford filed a motion for rehearing. On

May 9, 1994, Swafford filed a motion to relinquish jurisdiction and hold appeal in

abeyance in light of newly discovered evidence. Swafford made the same allegations he

now raises as a newly discovered evidence claim in the instant 3.850 motion and

attached the same affidavit of Michael Eugene Lestz. On June 1, 1994, the Supreme

Court of Florida entered an order denying the motions. Mandate issued on June 1, 1994.

On or about June 13, 1994, Swafford filed the instant third 3.850 motion. He again

alleged in it that he is innocent and has newly discovered evidence. Collateral counsel

claimed to have finally located Lestz, who signed an affidavit which counsel argues

strongly corroborates the Brady material that was not disclosed to the defense. Lestr

alleges in the affidavit that on the day of the Daytona 500 Walsh had two .38's, which he

said had been used, and he was in a hurry to get rid of them. He was acting very

nervous because he didn't want the guns in his possession. One was a hammerless

One of the places he went to get rid of the guns was the Shingle Shack, which all three

had been to on several occasions and were familiar with. A couple of days later they

were in the parking lot of a store and there were pamphlets about the Rucker homicide.

Walsh became upset and snatched pamphlets off cars saying they shouldn't be looking

for the suspect in Daytona Beach when she was not killed here. Lestz concluded

"Because I was with Michael Walsh before and after the incident, I knew how he was

acting and I think there is a good chance that he committed the murder of Brenda

Rucker." Swafford refers also to (1) a July 20, 1982, VCSO report in which Lestz

revealed that an individual named Walsh committed three murders in Florida and one of

the victims was a white female in the Daytona Beach area; (2) a January 31, 1983,

VCSO report indicating Lestz stated that between 6:OO a.m. and 10:30 a.m. on the days

of the Rucker homicide Walsh and Levi left him in a laundromat in Daytona Beach, a

which Ruckar was abducted; (3) a March 17, 1982, VCSO report indicating Walsh was

arrested in Arkansas for a armed robbery in which he told the victim he had killed three

resembled the composite of Brenda Rucker's killer; (4) a September 3, 1982, affidavit of

1982 he had a composite bulletin concerning the Rucker homicide b} Rucker's autopsy

revealed two marks possibly caused by the application of a lighted cigarette c} Lestz

stated that Walsh subjected Mm to homosexual attacks in which Lestz was burned with

of Brenda Rucker d} Lestz indicated that at 6:OO a.m. on February 14, 1982, Walsh and

Levi took his van and disappeared. When Walsh returned he sold his two .38's in a

Daytona Beach tavern. Walsh then dyed his hair black and forced Lestz to drive him to

New Orleans; (5) a July 26, 1982, VCSO report indicating that when Walsh viewed

the period of February 14-15, 1982, stating he would rather not say. CCR claimed due

diligence but that it was unable to locate Lestz until a tracing service reported an address

in April 1994. CCR cited the pressure of warrants and the deteriorating physical and

mental health and family life of former CCR attorney Jerome Nickerson and the fact of

investigation, which reason was rejected previously by the Supreme Court of Florida.

SUMMARY OF ARGUMENT

The trial court properly summarily denied Swafford's successive Florida Rule of

Criminal Procedure 3.850 motion as it merely rehashed a Brady v. Maryland, 373 U.S.

83 (1963), claim in a previous 3.850 motion which was rejected by state and federal

barred. Pursuant to Florida Rule of Criminal Procedure 3.850(b) no motion shall be filed

or considered if filed more than two (one) years after the judgment and sentence become

final in a capital case in which a death sentence has been imposed. No fundamental

for in rule 3.850 and held to apply retroactively.

Pursuant to rule 3.850(f) a second or successive motion may be dismissed if the

judge finds that it fails to allege new or different grounds for relief and the prior

determination was on the merits. This instant ground for relief was raised in the first 3.850 a

motion as a Brady v. Maryland, 373 US. 83 (1963), claim and CCR still insists it has a

valid Bfady claim. Nothing new or noteworthy has been alleged, however, simply that

Lestz has been found, he "thinks" there is a "possibility" Swafford may be innocent and

that one of the places Walsh went to get rid of a handgun was the Shingle Shack. Lestz

is evidently without personal knowledge as to whether Walsh actually did get rid of a gun

there and in what manner. There is no getting around the fact, however, that it is

asfablished that Swafford did get rid of his gun there and his gun was the murder

weapon. These allegations hardly constitute a new or different ground for relief and the

motion was properly denied.. Preston v. State, 564 So.2d 120 (Fla. 1990; Tafero Y.

State, 561 So.2d 557 (Fla. 1990).

There seems to be continuing confusion as to the parameters of viable Brady

claims, Suffice to say that it is clear that the prosecution is not required to "make a

complete and detailed accounting to the defense of all police investigatory work on a

case. 'I Moore v. ///inois, 408 U.S. 786 (1972); Spaziano v. State, 570 So.2d 289 (Fla.

Pursuant to rule 3.850(f) a second or successive motion may be dismissed where

the judge finds that the failure of the movant or the attorney to assert those grounds in

a prior motion constituted as abuse of procedure. Spariano v. State, 545 S0.2d 843 (Fla.

1989). Alternatively, the above allegations could certainly have been included in the first

3.850 motion. CCR has had years to locate Lestz, who really has nothing of interest to

say, and this court did not buy into the theory of warrant pressure, etc. in the last 3.850

appeal as an excuse for not timely raising claims. a

To set aside a conviction or sentence because of newly discovered evidence,

newly discovered evidence must be of such nature that it would probably produce an

acquittal on retrial or result in a life sentence rather than the death penalty. Jones v.

State, 591 So.2d 91 1 (Fla. 1991). The crux of the "newly discovered evidence" now

proffered has been before the courts before and in the context of Brady was found not

to even be material, no less outcome determinative so it can hardly be said that under

a new evidence analysis such evidence would produce an acquittal on retrial or result in

a life sentence or that lack of such evidence could have rendered counsel ineffective.

Based on the above and foregoing reasons and argument, the state rspectfully

submits that the order denying past conviction relief in the successive proceeding should

be affirmed.

ROBERT A. BUTTERWORTH

AlTORNJ5Y GENERAL

7 - L.- " & .

/MARGEKE A. ROPER

Florida Bar # 0302015

Office of the Attorney General

444 Seabreeze Boulevard

Daytona Beach, Florida 321 18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing answer brief of

appellee has been furnished by United States Mail, first class postage prepaid to Martin

hief Assistant CCR, P.O. Drawer 5498, Tallahassee, Florida 32314-5498

of August, 1995.

*---2- ' .- /--

// -

MARGENE A. ROPER