IN THE SUPREME COURT OF FLORIDA

CASE NO. 85,682

ROY CLIFTON SWAFFORD,

STATE OF FLORIDA,

ON APPEAL FROM THE CIRCUIT COURT

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

Florida Bar No. 0754773

OFFICE OF THE CAPITAL

1533 South Monroe Street

Tallahassee, FL 32301

COLLATERAL REPRESENTATIVE

COUNSEL FOR APPELLANT

PRELI MINARY BTATEM ENT

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

All other citations will be self-explanatory or will

REQUEST FOR ORAL ARGUMENT

The resolution of the issues involved in this action will

determine whether Mr. Swafford lives or dies. This Court has

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.

LE OF CONTEIU!l!S

TABfrE OF AUTIIORITIE 8

Bradv v. Maryland,

967 F.2d 472 (11th Cir. 1992),

rev. and remanded on other u rounds,

adhered to on remad,

113 S. Ct. 1940 (1993),

Garcia v. State,

Gorham v. State,

Heinev v. Dumer,

u d v. State,

Jones v. State,

gvles v. Whitlev,

LicrhtJxume v. Duuuer,

Mills v. Dusqer,

Schluzr v. PelQ,

Scott v. State,

Smith v. Duuser,

Smith v. Wainwriqht,

v. D-,

Sauires v. State,

v. Washinaton,

Swafford v. Dusser,

Swafford v. State,

Swafford v. State,

Withermoon v. State,

Ormond Beach at 6 : 2 0 a.m. on Sunday, February 14, 1982 (the day

of the Daytona 500).

area six miles away: she had been shot nine times.

Her body was found the next day in a wooded

case against Mr. Swafford was that he was in the Daytona Beach

area that weekend. H i s whereabouts between 6:OO a.m. and 7:OO

a.m. were unaccounted for by State witnesses, except for the fact

evidence that on the evening of February 14, Mr. Swafford was in

possession of a .38 hammerless revolver at a bar known as the

not found on Mr. Swafford, although a .38 hammerless revolver was

In Mr. Swafford's most recent Rule 3.850 motion, undersigned

counsel had previously been unable to locate despite

Walsh. Mr. Lestz's affidavit provides:

My name is Michael Eugene Lestz and I

live in the state of Illinois. In 1982 I was

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

occasions. a

I remember. on the day of th e Davtonq

ad two 38 caliber

bia hurry to u et rid of

500, Michael Walsh h

handauns and was in a

them. One of these 38's was a h ammer less

been used and he had to u et rid of them.

Walsh started soincr t o different b ars in

places Walsh went to qet rid of these

andcr uns was the Shingle S hack Torrless bar.

The three of us had been to this bar on

several occasions and we were all very

He told me that the handquns had

to uet rid of the qun s. One of the

A couDle of days after the Davtona $00

two guns, we were in the Darkins lot of a

store and there were PamB hlets about th e

and beuan to snatch the DamDhlets off the

suswct in Davtona Beach when she was not

da Rucker homicide. Walsh became wset

meant bv this.

Two sheriff's officers from the Volusia

me when I 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

back to explain the details to them.

wrote me back and told me to !!not worry about

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

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

Mr. Walsh's whereabouts between 6:OO a.m. and l0:OO a.m. on

February 14, 1982, could not be accounted for.

Mr. Swafford's trial, neither his statement nor his name were

disclosed to Mr. Swafford's defense attorney, Ray Cass. In light

Of Mr. Lestz's affidavit, Mr. Cass has stated in an affidavit:

Mr. Swafford I filed a Request for Discovery.

The purpose of this request was to obtain

would have been exculpatory and also those

presenting Mr. Swafford's case to the jury.

In short, the materials which I requested

were all materials which would have been

discoverable under Bradv v. Maryland, 83 S.

Ct. 1194 ( 1 9 6 3 ) .

When I asked for all discoverable

reports in the matter. In particular, I

implicating others in the homicide. This

Mr. Swafford. I was given a handful of

police reports and it was represented to me

that existed. I was not provided any

information about suspects by the names of

to trial did I learn about the existence of

other significant suspects. In fact, I was

I have been recently been provided

police reports regarding Walsh, Levi and

this affidavit (Attachments A-E). I never

to an individual by the name of Michael

Walsh, nor did I receive reports relating to

Lestz. 1 have been shown copies of these

police reports and I know that I would have

used these reports at trial by way of

homicide if I had been given the opportunity.

Instead, I was kept in the dark about the

existence of these other prime suspects.

Certainly there can be no doubt, if I had

these suspects I would have investigated the

same. This was precluded, however, because I

Further, I have been shown the affidavit

of Michael Lestz which implicates Walter Levi

and Michael Walsh in the murder of Brenda

Rucker. Mr. Lestz's affidavit is attached to

investigated them (as no doubt I would have

had I known of their existence) I would have

innocence and I would have presented the

testimony of Mr. Lestz as evidence at

erroneous theory in this case and would have

led to the perpetrators of this crime being

brought to justice. I am simply astounded by

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

AS a result of the Bradv violation, Mr. Swafford, an

that this injustice be corrected. At the very least, an

STATEMENT OF THE CASE

On February 14, 1982, at approximately 6:15 a.m., Brenda

A composite drawing of the assailant who abducted Ms. Rucker was

On February 15, 1982, Ms. Rucker's body was discovered by

sheriff's deputies in a wooded area about s i x miles from the Fina

station. Ms. Rucker had been sexually assaulted and shot nine

The State's case against Mr. Swafford was circumstantial.

According to the State, Mr. Swafford had travelled to Daytona

Beach that weekend for the Daytona 500 with a group of people.

was away from the campground in a vehicle until around 7:OO a.m.

on February 14th. He was with a prostitute until about 6:OO a.m.

on February 14th. Thus, the State contended that Mr. Swafford

abducted Ms. Rucker, sexually assaulted her, and killed her in

The stolen gun which was identified by a ballistics expert

as the murder weapon had been found in the Shingle Shack, a bar

in Daytona Beach. Testimony was presented indicating

Mr. Swafford had been in possession of such a weapon prior to the

arrival of police at the Shingle Shack.

Police found the gun in

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

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

On September 7, 1990, Governor Martinez signed a death

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

Until the signing of the warrant, Mr. Swafford was unrepresented

Collateral Representative (CCR), the office responsible for

providing effective representation to Mr. Swafford in collateral

proceedings (Saaldina v. Duucler, 526 So. 2d 71 (Fla. 1988)), had

In the Fall of 1990, CCR was on the verge of collapse. CCR had

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

October 24, 1990, this Court entered an Administrative Order

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

resigned effective November 1, 1990. October 8, 1990, Gail

Anderson, Assistant CCR, resigned effective November 8, 1990.

Billy Nolas and Julie Naylor resigned effective December 31,

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

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

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

proceedings in state court. Included in Mr. Swafford's motion

was a claim premised upon a Bradv violation. Mr. Swafford had

discovered a wealth of exculpatory evidence in Chapter 119

Walter Levi, and Michael Walsh and their numerous statements

implicating each other in the Rucker homicide.

of 1990. On October 22, 1990, the State submitted its

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

Specifically the State conceded that a hearing was appropriate on

the violation of Bradv v. Maryland, 373 U . S . 83 (1967), as well

The nondisclosure included the names of Michael Lestz,

At an October 24, 1990, status hearing, the State produced

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

that had not been previously given to the defense (PC-R1. 455).

2 Although this response indicated service by fax on October

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

evidence. On October 30, 1990, the circuit court signed an order

denying the motion to vacate (PC-R1 436-51).

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

Oral argument was held on November 9, 1990.

issued until 1:00 p.m. on November 15, 1990. On November 14,

1990, this Court issued its opinion denying all relief. Swafford

Y. State, 569 So. 2d 1264 (Fla. 1990).

A temporary stay was

Mr. Swafford next filed for federal habeas corpus review.

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

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

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

While the appeal was pending in the Eleventh Circuit,

Mr. Swafford, through newly assigned counsel, continued to

additional efforts to locate Lestz, Levi and Walsh. While the

affirmed the summary denial. Swafford v. State, 636 So. 2d 1309

(Fla. 1994).

In April of 1994, Mr. Swafford's collateral counsel was

individual, Mr. Lestz, provided Mr. Swafford's collateral counsel

that was not disclosed to Mr. Swafford's defense team, and

provides new and additional evidence which is exculpatory to

Mr. Swafford.

counsel was unable to ascertain his whereabouts until April of

Based on information obtained from Mr. Lestz, Mr. Swafford

filed a new Rule 3.850 motion on June 13, 1994. The State filed

its response on September 19, 1994. The circuit court summarily

denied all relief on January 10, 1995. Mr. Swafford filed a

Motion for Rehearing on January 30, 1995. The State filed a

Response to Mr. Swafford's Motion for Rehearing on February 10,

1995. The circuit court denied Mr. Swafford's Motion for

Rehearing on April 3, 1995. This appeal follows.

1. Newly discovered evidence establishes a Bradv violation

and that Mr. Swafford is an innocent man. The circuit court's

denial of an evidentiary hearing and Rule 3.850 relief was

ARGUMENT I

m m SWAFFORD WAS DEPRIVED OB HIS RIGHTB TO

THE UNITED STATE8 CONBTITUTIOW AS WELL AS HIS

EVIDENCE WHICH WAS MATERIAL AND EXCULPATORY

EVIDENCE. SUCH OMISSIONS RENDERED DEFENSE

COUNSEL'B REPRESENTATION INEFFECTIVE AND

RIGHTS UMDER THE FIFTH, SIXTH, AND EIGHTH

PREVENTED A FULL ADVERSARIAL TESTING.

BURTHER, NEWLY DISCOVERED EVIDENCE

THE OFFENSE FOR WHICH HE WAS CONVICTED AND

AND DEATH SENTENCE VIOLATE THE EIGHTH AND

matter of law, confidence was not undermined in the outcome.

This Court affirmed on the same basis. Swafford v. Ducsser, 569

So. 2d 1264, 1267 (Fla. 1990). These rulings were made without

Until April of 1994.

In his affidavit, Mr. Lestz sticks by his statements to the

to murder the victim than did Mr. Swafford.

Lestz's statement to police, Mr. Walsh was unaccounted for

between 6:OO a.m. and 1O:Oo a.m. and that during that time he had

possessed a stolen hammerless .38 revolver which he got rid of at

the Shingle Shack on Sunday evening, February 14, 1982. Mr.

Lestz also indicates that Walsh became so angry upon seeing the

Rucker homicide that Ig[he] began to snatch the pamphlets off the

cars." In fact, shortly thereafter, Mr. Walsh was arrested in

Arkansas following an armed robbery. Police found the Rucker

composite in his back pocket and immediately called Volusia

presented by Mr. Swafford.

A. MR. SWAPFORD IS Aw INNOCENT MAN

Evidence uncovered since the time of Mr. Swafford's capital

Mr. Swafford is innocent of the offense for which he was

is required, for it establishes that Mr. Swafford's conviction

Yvles v. Whitlev, 115 S. ct. at 1567.

In April of 1994, Mr. Swafford's collateral counsel was

finally able to locate one of the key witnesses who gave a

was never disclosed to defense counsel). This individual, Mr.

discovery obligations, Mr. Swafford would have been acquitted:

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.

Walsh. Michael Walsh borrowed my van on

where he was going. I previously told the

I remember, on the dav of the Davtona

500, Michael Walsh had two 38 caliber

handsun s and was in a biq hurry to cret rid of

aern. One of these 38's was a hammerless

t the handsuns h ad revolver. He told me tha

been used and he had to cret rid of them.

4Jalsh started uoina to different bars in

order to u et rid of the quns. One of the

places Warn went t o uet rid of the se

handuu ns was the Shinale Shac k Topless bar.

The three of us had been to this bar on

several occasions and we were all very

familiar with it. m.0 M ichael was actins

beca use he didn't want the u uns in his

A couple of days after the Davtona 500

and after Michael Walsh h ad qotten rid of the

Brenda Rucker horn icide. Walsh became UD set

beqan to mat ch the pamphlets off the

Cars sau, 'nu they shouldn't be lookinu for the

killed here. Walsh would never tell us what

he meant by this.

fwo q.wls. we w ere in the sarkincr 1 ot of a

me when I 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 1 wrote them

wrote me back and told me to "not worry about

it. I1

acting and I think there is a good chance

The weapon used to kill the victim in this case was a .38

4Despite diligent efforts by Mr. Swafford's collateral

counsel to locate Mr. Lestz and other individuals implicated in

locate Mr. Lestz until Global Tracing Services Inc. reported

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

As noted above, Mr. Lestz's affidavit corroborates the

5 to Vr. Swafford's defense team. According to a July 20, 1982,

that one of the victims was a white female in the Daytona Beach

area (PC-R3. 189).

A January 31, 1983, Volusia County Sheriff's report

stated that between 6:OO a.m. and 10:30 a.m. on the day of the

Rucker homicide, Walsh and Levi left him in a laundromat in

the Fina station from which Rucker was abducted (PC-R3. 195-96).

A March 17, 1982, Volusia County Sheriff's report indicated

that Walsh was arrested in Arkansas following an armed robbery in

which he told the victim that "he had 'killed' three persons' in

the State of Floridatt (PC-R3. 200). According to the Arkansas

Rucker's k i l l e r . l l (PC-R3. 200).

50n Sunday, February 14, 1982, Brenda Rucker disappeared

from a Fina station in Daytona Beach between 6:15 a.m. and 6:20

a.m. Sheriff personnel recovered her body on February 15, 1982;

she had died from injuries resulting from numerous gunshots. Mr.

Further, a September 3, 1982, affidavit of Bernard Buscher,

a Volusia County Deputy Sheriff stated that, when Walsh was

arrested in March of 1982, he had in his possession #la composite

205). Deputy Buscher also indicated that Brenda Rucker's

autopsy Itrevealed two marks on the body of the victim possibly

caused by the application of a lighted cigarette" (PC-R3. 204).

IILestz was burned with a cigarette" (PC-R3. 205). Deputy Buscher

strongly resemble those burns found on the body of Brenda Ruckerll

(PC-R3. 205). According to Deputy Buscher's affidavit, Lestz

told Deputy Buscher that on February 14, 1982, Walsh and Levi had

.38 caliber handguns in a Daytona Beach tavern. Walsh Vhen dyed

his hair black and forced Lestz to drive him to New Orleansll (PCR3.

Finally, according to a July 26, 1982, Volusia County

Sheriff's Report, Walsh was interviewed and tlallowed to view

and unsure of his statements" (PC-R3. 215). Thereafter, I1Walsh

stated that he would not relate what he was doing or his

stating 'that he would rather not say'll (PC-R3. 215).

Mr. Swafford's post-conviction investigation (including Mr.

Mr. Swafford I filed a Request for Discovery.

The purpose of this request was to obtain

In short, the materials which I requested

were all materials which would have been

discoverable under Bradv v. Marvl and, 83 S.

Ct. 1194 (1963).

When 1 asked for all discoverable

reports in the matter. In particular, I

implicating others in the homicide. This

that existed. I was not provided any

information about suspects by the names of

Walsh, Levi, and/or Lestz. At no time prior

to trial did I learn about the existence of

other significant suspects. In fact, I was

police reports regarding Walsh, Levi and

this affidavit (Attachments A-E). I never

received any reports whatsoever which related

to an individual by the name of Michael

Walsh, nor did I receive reports relating to

Lestz. I have been shown copies of these

impeachment of the detectives and to

of these three individuals committed the

homicide if I had been given the opportunity.

Instead, I was kept in the dark about the

Certainly there can be no doubt, if I had

these suspects I would have investigated the

same. This was precluded, however, because I

Further, I have been shown the affidavit

Rucker. Mr. Lestz's affidavit is attached to

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

affidavit is further proof of Mr. Swafford's

innocence and I would have presented the

Lestz would have undermined the State's

erroneous theory in this case and would have

led to the perpetrators of this crime being

brought to justice. I am simply astounded by

the State's non disclosure of this

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

Despite due diligence, Mr. Swafford's collateral counsel was

unable to locate Mr. Lestz until Global Tracing Services Inc.

reported finding an address for Lestz in April of 1994.

On September 7, 1990, Governor Martinez signed a death

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

This action precipitated CCR's involvement in Mr. Swafford's

Mr. Swafford's case in thirty days and file a 3,850 motion.

It required CCR to complete its investigation in

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. Assisting Mr.

CCR learned of the existence of Lestz, Levi and Walsh,

the trio, CCR was unable to ascertain their whereabouts prior to

or during the 3.850 proceedings in 1990.

After a stay was entered in Mr. Swafford's case, CCR's

the individuals implicated in the murder of the victim in

Mr. Swafford's case. However, collateral counsel was not able to

locate Mr. Lestz, Mr. Levi or Mr. Walsh. None of the 119

material disclosed by the State contained a current address or a

credit records and/or prison records. Finally in April of 1994,

a Global Tracing Services Inc. reported discovering an address for

Mr. Lestz:

attorney involved in Roy Swafford's

I have been assigned to Mr. Swafford's

Mr. Swafford's entire defense team was

were undertaken to locate Mr. Lestz, Mr. Levi

and Mr. Walsh because of the police reports

listing them as suspects in the Rucker

homicide. I personally sifted through those

reports looking for an address and/or phone

number that could be used to contact any one

of the three. However, nothing panned out.

office, I on behalf of Mr. Swafford's defense

were implicated in the murder of Brenda

records was of no assistance, nor was I able

contacting prison systems. I was shocked

that I could not get an address. All

Lestz in April of 1994.

Global was able to locate Michael Lestz,

who was named in the Volusia County Sheriff's

(Affidavit of Harun Shabazz, PC-R3. 25-26).

Cm THE CIRCUIT COURT'S DENIAL OF MR. SWAFFORD CLAIMS WAS

The circuit court summarily denied Mr. Swafford's Rule 3.850

motion because Mr. Swafford had previously presented a Rule 3.850

motion (PC-R3. 167-169). The circuit court's denial of an

evidentiary hearing and Rule 3.850 relief was erroneous.

Further, the circuit court erred in applying a procedural bar to

like the situation in Scott v. State, 20 Fla, L. Weekly S132

(Fla. 1995). There, Mr. Scott, who previously raised a BradY

violation, presented a successor Rule 3.850 motion asserting a

Bradv violation based upon evidence not previously available to

the resolution of the claim presented in his Motion to Vacate

Judgment and Sentence. For example, in the order denying

Mr. Swafford's Rule 3.850 motion, the circuit court erroneously

relied on the United States Supreme Court decision in Herrera v.

Collin s, 113 S. Ct. 853 ( U . S . 1993)6.

will be violated by executing an innocent man. Herrera

presupposed that there was no other constitutional error at Mr.

of a Bradv violation. Here, the evidence of innocence is being

raised in state court and was not discovered at trial because the

State violated Bradv v. Maryland.

In Herrera, the Court

'On January 23, 1995,