IN THE SUPREME COURT OF FLORIDA

CASE NO. 85,682

ROY CLIFTON SWAFFORD,

STATE OF FLORIDA,

OF THE SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

MARTIN J. MCCLAIN

Chief Assistant CCR

Florida Bar No. 0754773

OFFICE OF THE CAPITAL

1533 South Monroe Street

Tallahassee, FL 32301

COUNSEL FOR APPELLANT

W E OF CONTENT8

TABId OF AUTHORITIES

Garcia v. State,

Kvles v. whitlev,

ne v. Duuuer,

Scott v. State,

Smith v. Wainmsht,

NT OF TH,E CASE

In its Answer, the State relies heavily on the gun which was

recovered on February 14, 1982 and which allegedly belonged to

Ms. Swafford.

Swafford to the crime.

Despite the fact that the gun was the centerpiece of the

prosecutor's case, there are serious problems in connecting Mr.

Swafford to the gun and connecting the gun to the murder of

Brenda Rucker. The State, in order to llprovell that Mr. Swafford

like thisR1 (R. 810). Undisclosed madv material regarding Mr.

Harper was presented in Mr. Swafford's previous Rule 3.850

motion. Indeed, Harper lied about getting a deal in exchange for

his testimony (R. 836). Furthermore, Harper's identification of

the gun was clearly suspect given the fact that on May 21, 1984

in deposition he had been shown another gun by Mr. Swafford's

(R. 826).

Johnson testified that he never saw a gun during this trip (R.

848). Chan Hirtle stated that he did not really know whether or

not the gun which was entered as Exhibit I was Roy Swafford's

(R. 859). Ricky Johnson, the only other remaining family member

who testified etated that he never saw the gun (R. 885). In fact

he didn't see the gun until he was taken to jail on February 14,

1982 and at that time the police did not know to whom the gun

belonged (R. 894). Therefore, no one but Roger Harper, whose

particular weapon belonged to Roy Swafford.

Even the manner in which this particular gun was found was

highly suspect. Two other State's witnesses, Clark Bernard

Griswold and Karen Sarniak, gave two totallv different versions

as to how this weapon was seized. Indeed, M r . Griswold said that

he somehow knew that Mr. Swafford hid this gun in the trash can

in the men's room (R. 1045). Mr. Griswold further related that

Mr. Swafford, at the time of his arrest, was wearing only jeans

and a black t-shirt (R. 1052). He was not wearing a leather

jacket, as Mr. Harper testified to on cross-examination (R. 825).

The other State's witness, Karen Sarniak, stated that Mr.

Swafford put the gun in a wastepaper basket in the ladies room

(R. 1093-1094). She also testified that the police came into the

ladies room and seized the weapon (R. 1098). The testimony of

attorney, Raymond Cass, requested that he be provided with all

materials which were discoverable (R. 1513). What was not known

under Chapter 119.01, Florida Statutes et seq., which included,

and the bullets, proves this allegation (PC-R2. 448-535).

Mr. Swafford's trial

Documents released to CCR pursuant to CCR's request

that the sheets themselves are internally contradictory. It is

whited-out information while at the same time substituting new

June 10, 1983 Detective Hudson checked out the gun from the

Sheriff's Department. The gun was at that time labeled Q-1.

Also checked out was a set of Mr. Swafford's fingerprints, the

same being labeled Q-2. On the same day both the gun and the

Additionally, Detective Hudson filed with the FDLE a request

for analysis on the gun and the prints. This, again, was done on

June 10, 1983. The problem with this particular submission is

fingerprints were turned over to FDLE (PC-R2. 717). However,

another copy (PC-R2. 719) has added to it in handwriting the fact

that Detective Hudson also submitted b ullets w i t h the gun.

February 19, 1982 wherein Mr. Meyers, firearms examiner at FDLE,

indicates that the bullets would be kept in FDLE's Itopen shooting

file" (PC-R2. 721). In other words, there is a very real

question as to where the bullets that were submitted by Detective

question arises as to the authenticity of the bullets that were

Mr. Swafford has submitted these property receipts to Lonnie

Hardin, the expert who originally analyzed the gun and the

benefit of reviewing these evidence logs or property receipts at

the time that he conducted his pre-trial analysis.

It is Mr.

MR. BWAFFORD WAS DEPRIVED OF HIS RIGHTS TO

DUB PROCESS WDER THE FOURTEENTH AXENDMENT TO

THE WHITED EITATEB CONSTITUTION AS WELL AS HIS

AMENDMENTS, BgCAUBE THE STATE WITEEELD

EVIDENCE WHICH W M UTERIAL AND EXCULPATORY

I1 NATURE AND/OR PRESENTED MISLEADING

WIDEMCE. SUCH OMI8810M8 RENDERED DEFENSE

COWHSEL'B REPRESENCATIOBI INEFFECTIVE AND

PREV-ED A BULL ADVERSARIAL TESTING.

FURTHER, NEWLY DISCOVERED EVIDENCE

EBTABLISHEB TEAT MR. SWAFFORD 18 INNOCENT OF

THE OFFENSE BrOR WHICH HE WAS CONVICTED AND

Aan, DEATH SENTENCE VIOLATE THE EIaHTH AND

SENTEMCED TO DEATH, AND THUS HIS CONVICTION

FOURTEENTH AMENDMENTS.

ruling rejecting Mr. Scott's Bradv claim. This Court found the

new evidence of a Bsadv violation warranted an evidentiary

hearing. Scott v. S t a te, 20 Fla. L. Weekly S132 (Fla. 1995)

(Slip Op. at 8).

maintaining other individuals were responsible for the death of

swafford presented a successor Rule 3.850 motion asserting a

Bra& violation based upon evidence not previously available to

implicating Walsh, Levi and Lestz in the murder of Brenda Rucker,

My name is Michael Eugene Lestz and I

live in the state of Illinois. In 1982 I was

in Daytona Beach, Florida during the Daytona

500. The Daytona 500 Auto Race took place on

Sunday, February 14, 1982.

While I was there, I was in the presence

of two guys named Walter Levi and Michael

Walsh. Michael Walsh borrowed my van on

several occasions and without telling me

where he was going. I previously told the

I remembex. on the dav of th e Davtogg

500, Michael Walsh h

them. One of t hese 38'6 was a hammerle ss

order to set rid of the sum. One of the

Walsh star

The three of us ha d been to th is bar on

several occasions md we were all very

it was because he didn't want the uuns in h i s

ar with it. Also M ichael was actinq * I

and after M ichael Walsh had u otten r id of the

two uuns, we were in the x) arkins lo t of a

to e d out t e

er homicide. Walsh became wset

snatch the gamD hlets off th e

sustxct ~n Davt ona Beach when she was no t

k i l b d here, Walsh would n ever tell us what

me when 1 was in the Marion Federal Prison in

Illinois. I gave them detailed, truthful

statements of what I could remember at that

time. At some point at a later date I

remembered some more details and I wrote them

wrote me back and told me to 'Inot worry about

and after the incident, I knew how he was

acting and I think there is a good chance

Because I was with Michael Walsh before

(Affidavit of Michael E. Lestz, PC-R3. 22-23)(emphasis added).

In its Answer, the State argues that Mr. Swafford's newly

discovered evidence fails to meet the requirements of Jones v.

State, 591 So. 2d 911 (Fla. 1991), in which the "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 penaltyn (Answer at 16). As noted below, the information

requirements in Jones.

Court was faced with a similar situation in Scott where newly

discovered evidence established a Brady violation. The Court in

remanded the case back to the lower court for an evidentiary

S132 (Fla. 1995).

determining if an evidentiary hearing is required. Here, Mr.

hearing is necessary: a

victims was a white female in the Daytona

Between 6:OO a.m. and 10:30 a.m. on the

left Lestz in a laundromat in Daytona Beach,

a couple of blocks from the Fina station.

was abducted.

Walsh was arrested in Arkansas following

an armed robbery in which he told the victim

of Brenda Rucker’s killer.

Walsh was arrested in March of 1982, he

had in his possession a composite bulletin

marks on the body of the victim possibly

At 6:OO a.m. on February 14, 1982, Walsh

disposed of two .38 caliber handguns in a

view several photographs of the Rucker

not relate what he was doing or his

Further, this Court in Scott looked at the totality of the

hearing should be granted. Here, the allegations taken in the

context of the totality of Mr. Swafford's case demand that an

evidentiary hearing be granted. M r . Swafford's original trial

counsel, Ray Cass, has thoroughly examined all of the materials

Further, I have been shown the affidavit

of Michael Lestz which implicates Walter Levi

and Michael Walsh in the murder of Brenda

this affidavit (Attachment F). Lestz's

affidavit demonstrates that had I been

investigated them (as no doubt I would have

had I known of their existence) I would have

been able to present evidence of their guilt

innocence and I would have presented the

testimony of Mr. Lestz as evidence at

Mr. Swafford's trial. The testimony of Mr.

erroneous theory in this case and would have

brought to justice. I am simply astounded by

(Affidavit of Ray Cass, PC-R3. 182-87).

different than that in Scott. In SCQW, the Court rejected the

State's argument that Mr. Scott's Bradv claim was procedurally

barred because in light of the new evidence Mr. Scott's Bradv

claim has merit. Here, in light of Mr. Lestz's and Mr. Cass's

affidavits, it is clear that Mr. Swafford is entitled to an

Also, the State has not presented any evidence that Mr.

Swafford failed to exercise due diligence in obtaining the

affidavit of Mr. Lestz and the lower court has not ruled that Mr.

Swafford has failed to exercise due diligence. Thus, M r .

Swafford is entitled to an evidentiary hearing.

sumrnarily denying Mr. Swafford relief. While the lower court

of the victim, it did not make an independent assessment of the

merits of Mr. Swafford's claim.

It wholly relied on a procedural bar in

regarding the need for an evidentiary hearing.

lower court failed to reach the merits. Par ker v. DuqCleF, Nos.

74,978 and 78,700 (Fla. Oct. 5, 1995). In Par-, this Court

conclusively shows that no relief is

trial court did not err in denying these

claims without an evidentiary hearing in this

case, the court never made a determination

not entitled to relief. The court never

the merits of Parker's claims. The trial

court is the appropriate place for the

claims. We will not rule U D O ~ th e merits of

those claims when the trial co urt never

Accordinalv, we reverse the tr ial

trial c o u ~ .

Parker v. State, Nos. 74,978 and 78,700 (Fla. Oct. 5, 1995) (Slip

Op. at 6, 7) (emphasis added). Likewise here, the Court should

by the State of Florida in this case. Scott v. State; Kvles v.

itlev, 115 S. Ct. 1555 (1995). When viewed in conjunction with

violations and/or trial counsel's deficient performance, there

withstand the requirements of the Eighth and Fourteenth

Amendments. gvleg. An evidentiary hearing is required. Scott

Mr. Swafford adamantly maintains that critical Bradv

State failed to correct the perjured testimony that went to the

jury. Mr. Swafford maintains that he was denied an adversarial

testing. Garcia v. State, 622 So. zd 1325 (Fla. 1993). Under

Mr. Swafford further maintains that Scott v, State, 20 Fla.

Weekly S132 (Fla. 1995), and Lishtbourne v, Dusser, 549 So. 2d

1364, 1365 (1989), dictate the necessity of an evidentiary

hearing in this case, even though this is a successive Rule 3.850

evidence, i . e . , in piecemeal fashion, has affirmatively prevented

a detailed, thorough analysis of this case by Mr. Swafford's

wrongdoing. Accordingly, Mr. Swafford requests that he be given

an evidentiary hearing on this issue and that the requested

I HEREBY CERTIFY that a true copy of the foregoing Reply

Brief of Appellant has been furnished by United States Mail,

first class postage prepaid, to all counsel of record on October

9, 1995.

MARTIN J. MCCLAIN

Y n F l o r i d a Bar No. 0754773

Chief Assistant CCR

Attorney for Appellant

(904) 487-4376

Copies furnished to:

Office of the Attorney General

444 Seabreeze Boulevard, 5th Floor

Daytona Beach, FL 32118