WPC" 2 BJ ZCourier2|x6x6X@`7X@HP LaserJet 5 (Lateral)HPLAS5.PRS 5x  @8;,\=$}X@2|x2 <    Њ   ^88Qoo888o8888oooooooooo88Nxdd88xdoxdoxxx888dd8`o`od8do88d8ooooCN8oddddYdYo4ooooo8oooooodoo8``````dddddddd88888888oooooooooxd`pooxdooo```````zddddddddddddddoo88888888ok8xdd8dDd8dNd8oooooxCxCxCdNdNdNdNo@o8o8ooooooxdxdxdxdod8oxCdNo8xdxdzoo8dd888WddddddddddddddddddddddddddddddddddddddddNdoo8NHHoooQQoH]ddoH88UUo,,ooxxdddokk8UdH"dhd9dCCx8dopod8odoslxUvdYY8888pxlodld\xTsl80xdhpo|TstolxxXo]xlx`p\s00slllp88oooooooppppppppppppppppppp\\\\\\\ssssssssssssssssssss000000000000sssssssllllllllllll8td8x8xldYC\   pxtll\tll@\@\`LCourierCourier Bold CourierCourier Bold2Z$ X~ vpLHP LaserJet 5 (Back)HPLAS5.PRS 5x  @8;,\=$}X@<?xxx,6x6X@`7X@?xxx,)x `7X a7DocumentgDocument Style StyleyXX` ` (#` 2+ta8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2kkYvia6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2it  BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2  G a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2U^+*a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p a1DocumentgDocument Style StyleXqq   l ^) I. ׃  Doc InitInitialize Document Style  0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)Documentg2CTech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   2 !u a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . 2& I.HeadingChapter Heading)J d  ) I. ׃  Right ParRight-Aligned Paragraph Numbers*>a݅@  I.   X(# 27+6,d6-p7.q7SubheadingSubheading+0\ E A.  a, Mr. ChandlerDocument[8]=t?%tDocument StyleE ' R ' P?%t 5fI ' b?-` ` ` Document[4]=t?%tDocument Style 5DR ' P?%t 5fI ' b?.  . 29/e%80e8182p9Document[6]=t?%tDocument Style 5DR ' P?%t 5fI ' b?/  Document[5]=t?%tDocument Style 5DR ' P?%t 5fI ' b?0  Document[2]=t?%tDocument Style 5DR ' P?%t 5fI ' b?1*    Document[7]=t?%tDocument Style 5DR ' P?%t 5fI ' b?2  ` ` ` 2<3$:4:5Q;6;Right Par[1]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?38 @  Right Par[2]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?4A@` ` `  ` ` ` Document[3]=t?%tDocument Style 5D R ' P?%t 5fI ' b?50     Right Par[3]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?6J` ` ` @  ` ` ` 2?7<8i=9>:>Right Par[4]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?7S` ` `  @  Right Par[5]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?8\` ` `  @hhh hhh Right Par[6]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?9e` ` `  hhh@ hhh Right Par[7]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?:n` ` `  hhh@  2mB;?<@=cA>ARight Par[8]=t?%tRight-Aligned Paragraph Numbers' P?%t 5fI ' b?;w` ` `  hhh@ppp ppp Document[1]=t?%tDocument Style 5DR ' P?%t 5fI ' b?&#$  . 2E?B@;CACBdDTechnical[2]=t?%tTechnical Document StyleR ' P?%t 5fI ' b??*%&    Technical[3]=t?%tTechnical Document StyleR ' P?%t 5fI ' b?@''(   Technical[4]=t?%tTechnical Document StyleR ' P?%t 5fI ' b?A&)*   Technical[1]=t?%tTechnical Document StyleR ' P?%t 5fI ' b?B4+$,     2UGCFEDEErPFFFTechnical[7]=t?%tTechnical Document StyleR ' P?%t 5fI ' b?C&-.  . Technical[8]=t?%tTechnical Document StyleR ' P?%t 5fI ' b?D&/0  . 1[1]x(=t?%tH' oBE '  5DR ' P?%t 5fI ' b?E12 2S&RKRK2lDocument Style  F2RKRK D52( D5RKt )BF*78    2WIGGHqHIeHJeH3S&RKRK2lDocument Style  F2RKRK D52( D5RKt )BG09 :    4S&RKRK2lDocument Style  F2RKRK D52( D5RKt )BH; < . 5S&RKRK2lDocument Style  F2RKRK D52( D5RKt )BI => 6S&RKRK2lDocument Style  F2RKRK D52( D5RKt )BJ ?@ 2sKKpILpIMiJNJ7S&RK RK2lDocument Style  F2RKRK D52( D5RKt )BKAB` ` ` 8S&RK!RK2lDocument Style  F2RKRK D52( D5RKt )BLCD` ` ` 9S&RK,RK2lTechnical Document StyleKRKy D52( D5RKt )BM&gh  . 10S&RK-RK2lTechnical Document StyleKRK D52( D5RKt )BN&ij  . 2NOKPALQLRjM11S&RK.RK2lTechnical Document StyleKRK D52( D5RKt )BO*kl    12S&RK/RK2lTechnical Document StyleKRK D52( D5RKt )BP'mn   13S&RK0RK2lTechnical Document StyleKRK D52( D5RKt )BQ&op   14S&RK1RK2lTechnical Document StyleKRK D52( D5RKt )BR4q$r     2nPSLNTNUVOV}O15S&RK2RK2lTechnical Document StyleKRK D52( D5RKt )BS&st  . 16S&RK3RK2lTechnical Document StyleKRK D52( D5RKt )BT&uv  . a3AutoList22 TU<-XX` ` 1.X (# a1AutoList30V$ 2SWPX(QYQZYRa2AutoList30W/` ` ` a3AutoList30X:` ` `  a4AutoList30YE` ` `  a5AutoList30ZP   2U[4S\S]T^}qUa6AutoList30[[   a7AutoList30\f  a8AutoList30]q a1AutoList28^$ 2X_ V`Va;WbWa2AutoList28_/` ` ` a3AutoList28`:` ` `  a4AutoList28aE` ` `  a5AutoList28bP 2n[cXdhYe'Zf}Za6AutoList28c[ a7AutoList28df a8AutoList28eq  a1AutoList27f$!" 2^g[h(\i\jY]a2AutoList27g/#$` ` ` a3AutoList27h:%&` ` `  a4AutoList27iE'(` ` `  a5AutoList27jP)* 2`k4^l^m_n}q`a6AutoList27k[+, a7AutoList27lf-. a8AutoList27mq/0 a1AutoList23n$12 2co apaq;brba2AutoList23o/34` ` ` a3AutoList23p:56` ` `  a4AutoList23qE78` ` `  a5AutoList23rP9: 2nfscthdu'ev}ea6AutoList23s[;< a7AutoList23tf=> a8AutoList23uq?@ a1AutoList20v$AB 2iwfx(gygzYha2AutoList20w/CD` ` ` a3AutoList20x:EF` ` `  a4AutoList20yEGH` ` `  a5AutoList20zPIJ 2k{4i|i}j~}qka6AutoList20{[KL a7AutoList20|fMN a8AutoList20}qOP a1AutoList19~$QR 2n ll;mma2AutoList19/ST` ` ` a3AutoList19:UV` ` `  a4AutoList19EWX` ` `  a5AutoList19PYZ 2nqnho'p}pa6AutoList19[[\ a7AutoList19f]^ a8AutoList19q_` a1AutoList15$ab 2tq(rrYsa2AutoList15/cd` ` ` a3AutoList15:ef` ` `  a4AutoList15Egh` ` `  a5AutoList15Pij 2v4ttu}qva6AutoList15[kl a7AutoList15fmn a8AutoList15qop a1AutoList18$qr 2y ww;xxa2AutoList18/st` ` ` a3AutoList18:uv` ` `  a4AutoList18Ewx` ` `  a5AutoList18Pyz 2n|yhz'{}{a6AutoList18[{| a7AutoList18f}~ a8AutoList18q a1AutoList17$ 2|(}}Y~a2AutoList17/` ` ` a3AutoList17:` ` `  a4AutoList17E` ` `  a5AutoList17P 24}qa6AutoList17[ a7AutoList17f a8AutoList17q a1AutoList16$ 2 ;كa2AutoList16/` ` ` a3AutoList16:` ` `  a4AutoList16E` ` `  a5AutoList16P 2nh'}a6AutoList16[ a7AutoList16f a8AutoList16q a1AutoList14$ 2(Ya2AutoList14/` ` ` a3AutoList14:` ` `  a4AutoList14E` ` `  a5AutoList14P 24}qa6AutoList14[ a7AutoList14f a8AutoList14q a1AutoList13$ 2 ;َa2AutoList13/` ` ` a3AutoList13:` ` `  a4AutoList13E` ` `  a5AutoList13P 2nh'}a6AutoList13[ a7AutoList13f a8AutoList13q a1AutoList12$ 2(Ya2AutoList12/` ` ` a3AutoList12:` ` `  a4AutoList12E` ` `  a5AutoList12P 24}qa6AutoList12[ a7AutoList12f a8AutoList12q a1AutoList11$ 2 ;ٙa2AutoList11/` ` ` a3AutoList11:` ` `  a4AutoList11E` ` `  a5AutoList11P 2nh'}a6AutoList11[ a7AutoList11f a8AutoList11q a1AutoList10$ 2(Ya2AutoList10/` ` ` a3AutoList10:` ` `  a4AutoList10E` ` `  a5AutoList10P 24}qa6AutoList10[ a7AutoList10f a8AutoList10q a1AutoList9$ 2 ;٤a2AutoList9/` ` ` a3AutoList9:` ` `  a4AutoList9E` ` `  a5AutoList9P 2nh'}a6AutoList9[ a7AutoList9f a8AutoList9q a1AutoList7$ 2(Ya2AutoList7/` ` ` a3AutoList7:` ` `  a4AutoList7E` ` `  a5AutoList7P   24}qa6AutoList7[   a7AutoList7f  a8AutoList7q a1AutoList6$ 2 ;ٯa2AutoList6/` ` ` a3AutoList6:` ` `  a4AutoList6E` ` `  a5AutoList6P 2nh'}a6AutoList6[ a7AutoList6f a8AutoList6q  a1AutoList5$!" 2(Ya2AutoList5/#$` ` ` a3AutoList5:%&` ` `  a4AutoList5E'(` ` `  a5AutoList5P)* 24}qa6AutoList5[+, a7AutoList5f-. a8AutoList5q/0 a1AutoList2$12 2 ;ٺa2AutoList2/34` ` ` a3AutoList2:56` ` `  a4AutoList2E78` ` `  a5AutoList2P9: 2nh'}a6AutoList2[;< a7AutoList2f=> a8AutoList2q?@ a1AutoList1$AB 2(Ya2AutoList1/CD` ` ` a3AutoList1:EF` ` `  a4AutoList1EGH` ` `  a5AutoList1PIJ 24}qa6AutoList1[KL a7AutoList1fMN a8AutoList1qOP a1AutoList29$QR 2   ІX  IN THE SUPREME COURT OF FLORIDA h#CASE NO. 92,173    yp4dddy  ROY CLIFTON SWAFFORD, *-Appellant, t)v. "STATE OF FLORIDA, *-Appellee.   yp4xdddy l ON APPEAL FROM THE CIRCUIT COURT l OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA   yp48dddy  ( y dddy INITIAL BRIEF OF APPELLANT  X y dddy ` `  hh#(MARTIN J. MCCLAIN ` `  hh#(Litigation Director ` `  hh#(Florida Bar No. 0754773 ` `  hh#(OFFICE OF THE CAPITAL ` `  hh#( COLLATERAL REGIONAL ` `  hh#( COUNSELSOUTH ` `  hh#(1444 Biscayne Blvd. ` `  hh#(Miami, FL 33132 ` `  hh#((305) 3777580 ` `  hh#(COUNSEL FOR APPELLANT0*0*0*  ?        PRELIMINARY STATEMENT ׃ This proceeding involves the appeal of the circuit court's denial of Mr.Swafford's motion for postconviction relief. The circuit court denied Mr.Swafford's claims following an evidentiary hearing. Citations in this brief to designate references to the records, followed by the appropriate page number, are as follows: "R. ___" Record on appeal to this Court in first direct appeal; "PCR1. ___" Record on appeal from denial of the first Motion to Vacate Judgment and Sentence. "PCR2. ___" Record on appeal from denial of the second Motion to Vacate Judgment and Sentence. "PCR3. ___" Record on appeal from denial of the third Motion to Vacate Judgment and Sentence. "PCR4. ___" Pending record on appeal from denial of relief after evidentiary hearing. "PCR4T. ___" Transcript of evidentiary hearing conducted February 67, 1997. All other citations will be selfexplanatory or will otherwise be explained. '0*((Ԍ ?  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.  ? x! CERTIFICATE OF FONT׃  ?  This brief is typed in Courier 12 point not proportionately spaced. 0*((  ? " TABLE OF CONTENTS ׃ `H!(#GPageă    X PRELIMINARY STATEMENT p!(#H i X REQUEST FOR ORAL ARGUMENT p!(#H ii X CERTIFICATE OF FONT p!(#H ii X TABLE OF CONTENTS p!(#Hiii X TABLE OF AUTHORITIES p!(#H v X INTRODUCTION p!(#H 1 X STATEMENT OF THE CASE p!(#H 5 X SUMMARY OF ARGUMENT p!(#H 39 X ARGUMENT I  XTHE STATE'S FALSE ARGUMENT IN 1990 AND ITS FAILURE TO REVEAL THAT A THOROUGH INVESTIGATION OF WALSH, LESTZ AND LEVI DID NOT OCCUR VIOLATES DUE PROCESS AND DEFEATS ANY PROCEDURAL BAR THAT COULD ARISE FROM PRIOR DECISIONS FROM THIS COURT WHICH WERE PREMISED UPON THE STATE'S MISINFORMATION AND FALSE ARGUMENT.   A. INTRODUCTION.p!(#H 40 X B.` ` 1990 DISCLOSURES AND NONDISCLOSURES. p!(#H 42 X C.` ` THE STATE'S CONTINUING OBLIGATION. p!(#H 44 X D.` ` MERITS REVIEW IS REQUIRED. p!(#H 46 X E.` ` CONCLUSION. p!(#H 48 X ARGUMENT II   ?  XMR. SWAFFORD WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE EITHER THE STATE FAILED TO DISCLOSE EVIDENCE WHICH WAS MATERIAL AND EXCULPATORY IN NATURE AND/OR PRESENTED MISLEADING EVIDENCE AND/OR DEFENSE COUNSEL UNREASONABLY FAILED TO  ?H& DISCOVER AND PRESENT EXCULPATORY EVIDENCE.   ?'   ?'  A. INTRODUCTION. p!(#H 49'0*((ԌX B.` ` CUMULATIVE ANALYSIS REQUIRED. p!(#H 51 X C.` ` LOWER COURT'S ANALYSIS VIOLATED KYLES. p!(#H 53 X D.` ` CONFIDENCE IS UNDERMINED IN THE OUTCOME. p!(#H 61  ? X ` ` 1. Walsh, Lestz, and Levi.  p!(#H 61 ` `  ` ` 2. Discredited police methods.  p!(#H 66 ` `  ` ` 3. Roger Harper.  p!(#H 67 ` `  ` ` 4. Other undisclosed evidence.  p!(#H 71 ` `  ` ` 5. Conclusion.  p!(#H 72 XX` `  ` X ARGUMENT III  XTHE CIRCUIT COURT ERRED IN REFUSING TO ADMIT AND/OR TAKE JUDICIAL NOTICE OF THE OVERTON COMMISSION REPORT AND THE SHEVIN REPORT BOTH OF WHICH WERE FILED WITH THIS COURT AS JUDICIAL RECORDS OF INQUIRIES UNDERTAKEN ON BEHALF OF THIS COURT CONCERNING THE ADEQUACY OF CCR'S STAFFING AND FUNDING, AND THUS THESE REPORTS WERE RELEVANT TO THE DILIGENCE INQUIRY CONCERNING CCR'S REPRESENTATION OF MR. SWAFFORD BETWEEN OCTOBER OF 1990 AND JUNE OF 1994. p!(#H 72 X ARGUMENT IV  XTHE TRIAL COURT'S CONCLUSION THAT COLLATERAL COUNSEL DID NOT USE DUE DILIGENCE WAS PREMISED UPON THE APPLICATION OF AN ERRONEOUS LEGAL STANDARD OF WHAT CONSTITUTES DUE DILIGENCE AND THUS IS SIMPLY UNSUPPORTED BY THE RECORD. p!(#H 76 ` ` A.` ` DUE DILIGENCE.x` p!(#H 78 X B.` ` THE CIRCUIT COURT'S ANALYSIS.pp2 p!(#H 80 X C.` ` THE PROPER ANALYSIS.-pp2 p!(#H 83 X D.` ` COUNSEL CONDUCTED A DULY DILIGENT SEARCH. p!(#H 92 ` ` E.` ` CONCLUSION.x` p!(#H 98 X ARGUMENT V  XMR. SWAFFORD'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION WERE VIOLATED BY THE PARTICIPATION OF THE STATE ATTORNEY'S OFFICE HEADED BY JOHN TANNER BECAUSE MR. TANNER WAS A NECESSARY AND MATERIAL WITNESS TO MR. SWAFFORD'S CLAIMS REGARDING MR. HARPER. p!(#H 99 X CONCLUSION p!(#H100 '0*((  ? < TABLE OF AUTHORITIES ׃ `H!(#GPageă  0  Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986)pX (#E45, 59 Brady v. Maryland, 373 U.S. 83 (1963)pX (#E44, 49  Chapman v. California, 386 U.S. 18 (1967)p8"(#I58  Downs v. State, 453 So.2d 1102 (Fla. 1984)p8"(#I98 Fahy v. Connecticut, 375 U.S. 85, 867 (1963)p8"(#I58 Gardner v. Johnson, 451 So.2d 477, 478 (Fla.1984)p8"(#I80 Hardwick v. Dugger, 648 So.2d 100 (Fla. 1995)p8"(#I98 Herrera v. Collins, 506 U.S. 390, 445 (1993), ` ` (Blackmun, J., dissenting)p8"(#I76 Hoffman v. Haddock, 695 So.2d 682, 685 (Fla. 1997), ` ` (Wells, J., dissenting)p8"(#I98 In re Winship, 397 U.S. 358, 372 (1970), ` ` (Harlan, J., concurring)p8"(#I76 Jean v. Rice, 945 F.2d 82 (4th Cir. 1991)p8"(#I57  Johnson v. Butterworth, 23 Fla. L. Weekly at S385, S386 (Fla. 1998)p8"(#I44 Kyles v. Whitley, 115 S. Ct. 1555 (1995)p(#=46, 51, 52, 58 Lindsey v. King, 769 F.2d 1034, 1042 (CA5 1985)pX (#E45, 59 Loren v. State,  ?' 601 So.2d 271 (1st DCA 1992)p8"(#I98 '0*((ԌOuimette v. Moran, 942 F.2d 1 (1st Cir. 1991)p8"(#I57  Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996)p8"(#I44 Roman v. State, 528 So. 2d 1169 (Fla. 1988)p8"(#I72 Schlup v. Delo, 513 U.S. 298, 324 (1995)p8"(#I76 Smith v. Wainwright, 799 F. 2d 1442 (11th Cir 1986)p(#=48, 49, 60, 61 Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988)p8"(#I29 Squires v. State, 558 So.2d 401, 403 (Fla. 1990)p8"(#I98 State v. Christopher, 623 So. 2d 1228 (Fla. 3rd DCA 1993)p!(#H100  State v. Gunsby, 670 So. 2d 920 (Fla. 1996)p8"(#I46 State v. Parker, 23 Fla. L. Weekly S439 (Fla. 1998)p8"(#I46 Steinhorst v. State, 695 So.2d 1245, 1252 (Fla. 1997) ` ` (Kogan, C.J, Anstead & Shaw, JJ., dissenting)p8"(#I93 Strickland v. Washington, 466 U.S. 668 (1984)px(#A49, 78, 98 Swafford v. Dugger, 569 So. 2d 1264 (Fla. 1990)p"(#J3 Swafford v. State, 533 So. 2d 270 (Fla. 1988)p8"(#I29 Swafford v. State, 569 So. 2d 1264 (Fla. 1990)p8"(#I33 Swafford v. State, 636 So. 2d 1309 (Fla. 1994)p8"(#I35 Swafford v. State, 679 So. 2d 736 (Fla. 1996)p8"(#I36 '0*((ԌUnited States v. Agurs, 478 U.S. 97 (1976)p8"(#I56  United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997)pX (#E57, 61 United States v. Bagley, 473 U.S. 667 (1985)pX (#E49, 56 United States v. Hosford, 782 F.2d 936 (11th Cir. 1986)p!(#H100  Ventura v. State, 673 So. 2d 479 (Fla. 1996)p8"(#I42  0*((  ?   $ INTRODUCTION ׃ In November of 1985, Mr. Swafford was convicted of first degree murder and sentenced to death. The evidence against Mr. Swafford was circumstantial. There was no physical evidence linking Mr. Swafford to the murder other than a .38 found in trash can at the Shingle Shack bar in Daytona Beach which ballistic analysis identified as the murder weapon. However, the testimony linking Mr. Swafford to that .38 was shaky at best. Mr. Swafford's defense was innocence. Specifically, the defense focused upon the fact that even according to the State, Mr. Swafford could only have committed the murder during an hour to an hour and half period, and this was an insufficient period of time to have raped the victim both vaginally and anally, burned her twice with cigarettes, make sure she was fully clothed, and  ? then shot her nine times.   ?8 ԍThere was also a question as to whether Brenda Rucker, the victim, was shot at the scene where her body was located, or whether her body was dumped there after she had already been killed. No spent bullets were found at the scene.  On September 7, 1990, Governor Martinez signed a warrant setting Mr. Swafford's execution for November 13, 1990. Thereafter, collateral counsel was assigned to represent Mr. Swafford by the Office of the Capital Collateral Representative. Collateral counsel sought Chapter 119 materials. In early October of 1990, police reports concerning other suspects James Michael Walsh, Walter Levi, and Michael Lestz were disclosed to Mr. Swafford's counsel. These reports clearly implicated James`" 0*(( Michael Walsh as an individual who may have murdered Brenda Rucker. These reports placed Mr. Walsh one block away from the scene where Brenda Rucker disappeared, fifteen minutes before she disappeared. Mr. Walsh was not seen again until over four hours later. When he reappeared, Mr. Walsh was sweaty and nervous. The reports also revealed that Mr. Walsh had homosexually assaulted Mr. Lestz and while doing so burned him with cigarettes in fashion that "strongly resemble[d] those burns found on the body of Brenda Rucker." (PCR3. 205). On October 16, 1990, after receiving an eight day extension of the then controlling Rule 3.851, Mr. Swafford's collateral counsel filed a 3.850 motion which included a claim that Mr. Swafford had not received an adequate adversarial testing because neither he nor his counsel were provided with the Walsh, Levi, or  ? Lestz evidence.X ?8 ԍMr. Swafford also asserted that additional exculpatory evidence never reached his jury because of either the State's failure to disclose or defense counsel's failure to discover. In response, the State of Florida asserted: "James Michael Walsh, Walter Levi, and Michael Lestz were thoroughly investigated and discarded as suspects." (State's Response dated 10/22/90 at 17). The State argued: "There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." (Id. at 16). The State further asserted: "Swafford has failed to show that this hearsay information was admissible, and failed to demonstrate any`" 0*(( culpability of Walsh, so information regarding the investigation would not have changed the outcome." (Id.). On October 30, 1990, the circuit court summarily denied the 3.850 motion. As to the claim premised upon Walsh, Levi and Lestz, the circuit court stated: "The court finds that the state was not required to provide Swafford with information regarding all suspects investigated." Order Denying 3.850 dated 10/30/90 at 4. On appeal to this Court, the State repeated the arguments that it had made in the circuit court. This Court's opinion issued on November 14, 1990, and found no error in the circuit court's ruling had been demonstrated. hSwafford v. Dugger, 569 So. 2d 1264 (FlaSwafford v. Dugger, 569 So. 2d 1264 (Fla. 1990)hSwafford v. Dugger, 569 So. 2d 1264 (Fla. 1990). Not until February 7, 1997, at the evidentiary hearing at issue in this appeal, did the State finally reveal the truth as to how the investigation of Walsh as a suspect came to an end. The investigation of James Michael Walsh as perpetrator of the Rucker homicide had ended on January 25, 1983, when Michael Lestz was confronted about his failure to pass a polygraph in July of 1982 during which he denied any involvement in the Rucker  ?@ homicide. @ ?! ԍOn July 23, 1982, Mr. Lestz asserted that on February 14, 1982, Mr. Walsh and Mr. Levi removed his clothing, took his vehicle, and returned several days later with a large amount of money. (Def. Exh. 4). (PCR4T. 538). On January 25, 1983, Michael Lestz revealed that at 6:00 a.m. on February 14, 1982, James Michael Walsh left Mr. Lestz at a laundromat approximately one block away`" 0*(( from the Fina Station at which Ms. Rucker had just arrived at work. On January 25, 1983, Mr. Lestz revealed that at 6:00 a.m. the morning of February 14th, Mr. Walsh left the laundromat in Mr. Lestz' vehicle to go find some drugs, this being fifteen minutes before Ms. Rucker was taken from the Fina Station accompanied by a man of whom composite drawing was made which "strongly resembled" Mr. Walsh. (PCR4T. 546). At that time, Mr. Lestz further stated that Mr. Walsh did not return until after 10:30 a.m. and then he appeared "[p]retty nervous, sweaty. He was real hyper." (PCR4T. 65). On January 25, 1983, Mr. Lestz indicated that after Mr. Walsh got back he was anxious to dispose of several guns, specifically including two .38's. On January 25th, it was known that a .38 had mostly likely been the murder weapon. Mr. Lestz' January 25th statement was "very similar" to what Walter Levi had already stated, and was thus  ?p corroborated by another witness.xp ? ԍOn August 30, 1982, Mr. Levi told law enforcement that at approximately 6:00 a.m. on February 14, 1982, Mr. Lestz arrived at the motel room where Mr. Levi had spent the night with Mr. Walsh. Mr. Walsh then departed with Mr. Lestz saying that the pair had "something to do." (Def. Exh. 7). Mr. Levi said that he did not see Mr. Walsh and Mr. Lestz again until between 11:00 a.m. and noon. (PCR4T. 558). Yet as was first revealed on February 7, 1997, the investigation ended then because Captain Randall Burnsed "just didn't find [Mr. Lestz] credible". (PCR4T. 569). No further investigation was done. Clearly, the State's claim in 1990 that Mr. Walsh and Mr. Lestz had been "thoroughly investigated and discarded as suspects" was a false representation to the courts and to collateral counsel.  0*((Ԍ ? ԙ  STATEMENT OF THE CASE ׃ On February 14, 1982, at approximately 6:15 a.m., Brenda Rucker was abducted from a Fina station in Ormond Beach, Florida. (R. 728, 73940, 1273). A composite drawing of the assailant who abducted Ms. Rucker was subsequently prepared. (PCR4T. 547). On February 15, 1982, Ms. Rucker's body was discovered by sheriff's deputies in a wooded area about six and a half miles from the Fina station. (R. 746, 748). Ms. Rucker had been sexually assaulted (both vaginally and anally), burned twice with cigarettes and shot nine times. (R. 76869, 771). The bullets passed through her clothing indicated that she was fully clothed at the time she was shot. (R. 767). The most likely fatal shot was "[b]ehind the right ear" where "a faint imprint of the muzzle of a weapon" appeared. (R. 765). According to a supplemental police report dated March 17, 1982, Michael Walsh had been arrested in Arkansas. (Def. Exh 2). Arkansas authorities discovered in his possession a BOLO for the Rucker homicide in Daytona Beach. (Def. Exh 2). The Arkansas authorities were struck by Mr. Walsh's strong resemblance to the composite drawing contained in the BOLO. As a result, the Arkansas authorities contacted the Volusia County Sheriff's Office on March 17, 1982. (PCR4T. 546) Volusia County law enforcement commenced investigating Mr. Walsh. And in fact, they "corroborate[d] that, that Mr. Walsh resembled the BOLO". (PCR4T 546). Law enforcement also determined that Walsh along a% 0*(( Michael Lestz and Walter Levi had been in Daytona Beach on February 14, 1983. Thereafter, there were a series of interviews of Mr. Walsh, and his traveling companions, Mr. Lestz, and Mr. Levi. A supplemental police report dated July 20, 1982, summarized a conversation Special Agent Baker had with Mr. Lestz and Mr. Lestz' attorney. (Def. Exh. 3). Special Agent Baker was with the United States Secret Service. Mr. Lestz was in federal custody on a charge of forgery of treasury bonds. (PCR4T. 85). Agent Baker reported that Mr. Walsh had pistolwhipped Mr. Lestz prior to the two being arrested in March, 1982. (Def. Exh. 3). After pistol whipping Mr. Lestz, Mr. Walsh took him to a motel where he pointed a gun at Mr. Lestz, burned him with cigarettes and said "he was going to kill me by means of placing a pistol behind my left ear and shooting [sic] my brains out and wanted me to think about that before he did it." (PC R4T 72). In July of 1982, Agent Baker reported that "Lestz' attorney advises that [the information] Lestz has involves several homicides which occurred in the state of Florida including Walsh Walsh's murder of a white female." (PCR4T. 574). On July 23, 1982, Volusia County personnel interviewed Mr. Lestz and subsequently Mr. Walsh. (PCR4T. 580). At that time, Mr. Lestz said that he, Walsh and Levi were in the Daytona Beach area "on 2/14, 2/15 1982 . . . Walsh accompanied by Levi had again taken his clothes from him, locked him in a small room and taken his van, that the pair disappeared for several days with'0*(( him not knowing where they went." (PCR4T. 117, Def. Exh. 6 at 4). During Mr. Lestz' July 23rd interview, a polygraph examination was administered. Deception was found in many of the questions answered by Mr. Lestz. Specifically:    Q And deception was found on the question, did you know the Fina station employee Brenda Rucker, and the answer being no? A Correct. Q Deception was found on, were you there when Brenda Rucker was shot, and the answer being no? That's on the next page. A Correct. Q Deception was found on, did Walsh tell you he shot Brenda Rucker, and the answer was no? A Correct. [Irrelevant exchange between the attorneys omitted]. Q And deception was found, did you shoot Brenda Rucker, and the answer was no? A Correct.   (PCR4T. 55253). On July 23, 1982, Mr. Walsh was interviewed regarding the Rucker homicide. (Def. Exh. 6). A report summarizing this interviewed was prepared July 26, 1982. "[I]t indicated that Walsh indicated that he would not related what he was doing or his whereabouts during the period of February 14th through 15th, 1982 stating quote, that he would rather not say, close quote". (PCR4T. 575). The report also noted that Walsh was shown several photographs of the Rucker homicide at which time he was observed as becoming "extremely upset, disorganized, nervous and'0*(( unsure of his statements." (Def. Exh 6). The report also stated: "WALSH was asked why upon his incarceration he had a copy of the RUCKER homicide suspect's composite in his possession at which time WALSH indicated that he obtained this composite from a Ormond Beach food store and had simply retained it because of a matter of curiosity." (Def. Exh 6). The report further stated: "WALSH indicated that his primary support during these periods of time were burglaries and robberies of which he did not care to elaborate, that he was a narcotic addict, using little 'D's' (Dialuded)." (Def. Exh. 6). On August 25, 1982, Volusia County authorities interviewed Walter Levi. (Def. Exh. 1). During that interview, Mr. Levi indicated that "it was common for him and Mr. Lestz to be left at the laundromat while Mr. Walsh went to purchase drugs." (PCR4T. 555). Mr. Levi indicated that this was the laundromat located on Granada Boulevard. By a law enforcement officer's "own estimate, this was probably a quarter mile or so" from the Fina Station where Brenda Rucker worked. (PCR4T. 555). The August 30, 1982, police report summarizing the interview of Mr. Levi stated: "LEVI indicated that on numerous occasions after his arrival back in the Daytona area in 1982, that WALSH drove both he and LESTZ to the area of Granada Boulevard at the laundromat and dropped the two off. LEVI indicated that WALSH would then go to the address of 'B.P.' who lives near the intersection of Granada and Route 1 and purchase narcotics." (Def. Exh. 7). The report observed that: '0*((Ԍ  LEVI further indicated that on the 14th of February, in the early morning hours, that he was spending the night in Daytona Beach hotel under a fictitious name with a stolen credit card. LEVI stated that accompanying him on this particular evening was WALSH. LEVI indicated that at approximately 6:00 AM, that LESTZ responded to the hotel room and picked up WALSH stating that the pair had 'something to do'. LEVI stated that LESTZ informed WALSH that he did not wish LEVI to go with them as he did not know him that well or trust him.   (Def. Exh. 7 at 2). On September 3, 1982, in Sangamon County, Illinois, the vehicle Mr. Lestz had possession of while in the Daytona Beach area on February 14th was searched pursuant to a search warrant. The search warrant was supported by the affidavit of Bernard Buscher, a Volusia County Deputy Sheriff. In the affidavit Deputy Buscher stated that, when Walsh was arrested in March of 1982, he had in his possession "a composite bulletin concerning details of the Brenda Rucker homicide" (PCR3. 205). Deputy Buscher also indicated that Brenda Rucker's autopsy "revealed two marks on the body of the victim possibly caused by the application of a lighted cigarette" (PCR3. 204). Deputy Buscher revealed in the affidavit that Lestz had stated that Walsh subjected Lestz to homosexual attacks during which "Lestz was burned with a cigarette" (PCR3. 205). Deputy Buscher examined Lestz's burns and "noted that these burns on Lestz' body strongly resemble those burns found on the body of Brenda Rucker." (PCR3. 205). On February 14th, Walsh was anxious to sell two .38 caliber handguns. Walsh "then dyed his hair black and forced Lestz to drive him to New Orleans" (PCR3. 205206). '0*((ԌNo physical evidence was found as a result of the search of the vehicle which had previously belonged to Mr. Lestz. However, the failure to find any incriminating evidence did not in any way eliminate Walsh or Lestz as suspects. As Captain Randall Burnsed testified in circuit court:   Q Had anything about that made you skeptical of Mr. Lestz at that point in time? A No, sir. Q In fact, the van had, in fact, been sold to somebody else and other people had owned it in the interim time period; is that correct? A Yes, sir. Q And, in fact, with reference to the car Mr. Swafford was in, the search of that car produced no physical evidence linking him to the crime either; is that correct? A Correct.   (PCR4T. 54950). In fact after the results of the vehicle search were in, Captain Burnsed decided to travel to a federal prison in Illinois to interview Mr. Lestz yet again about the Rucker homicide. (PCR4T. 55051). So in January of 1983, Captain Burnsed along with Deputy Buscher traveled at county expense to Marion, Illinois to reinterview Mr. Lestz. Captain Burnsed explained that he wanted to obtain from Mr. Lestz an explanation of why he had shown deception on the polygraph examination conducted in July of 1982. (PCR4T. 538). In fact as Captain Burnsed has now testified, Mr. Lestz' problems with the polygraph "indicate[d] to [Captain%0*(( Burnsed] that this meant that Mr. Walsh was more likely to be involved in the homicide". (PCR4T. 538). During the January 25, 1982 interview, Mr. Lestz changed his story. (PCR4T. 568). He abandoned his previous claim of having been locked in a motel room for two days and having a blackout. Instead, he reported that between 6:00 a.m. and 10:30 a.m. on the day of the Rucker homicide, Walsh left him in a laundromat in Daytona Beach, a block from the Fina station. (Def. Exh. 5 at 3) A police report dated January 31, 1983 summarizing the interview of Lestz reported that "LESTZ indicated however that upon WALSH'S [sic] on numerous occasions dropping him off on Granada Boulevard at the laundromat, he would observe WALSH to drive his (Lestz) vehicle west on Granada and make a left turn on US1 adjacent to the FINA SERVICE STATION at which the victim was abducted." (Def. Exh. 5 at 4). Lestz further indicated that Walsh had on numerous occasions frequented the convenience store near the laundromat and had commented on a particular female clerk working at the convenience store (PCR4T. 7677). On January 25, 1983, "LESTZ again reiterated that he felt WALSH was responsible for the homicide of BRENDA RUCKER but again stated that he was not there and that WALSH had not informed him that he killed the victim." (Def. Exh. 5 at 4). It was revealed for the first time on February 7, 1997, that after the January 25th interview of Mr. Lestz, law enforcement stopped its investigation of Mr. Walsh as a suspect in the Rucker homicide. On February 7, 1997, Captain Burnsed explained his'0*(( decision to not pursue Mr. Walsh and Mr. Lestz as a suspect further as follows:    Q I thought you had indicated that the reason for going on January 31st actually I guess it was January 25th, 1983 to Illinois to interview Mr. to interview Mr. Lestz was because you found him and Mr. Walsh to be serious suspects? A Correct.   Q So what Mr. Lestz had said before this statement didn't eliminate [Walsh] as a suspect? A Correct. Q Okay. So at the time of this statement then Mr. Lestz gives you information indicating that Mr. Walsh is a half block from the crime scene going out to purchase drugs the morning of the crime? A That's correct. Q And did that match up with what Mr. Levi had already said? A It's very similar, yes. Q At that point in time did you go confront Mr. Walsh with this information? A I did not. No, sir. Q After the interview on January 25th, 1983 was any further investigation conducted of Mr. Lestz, Levi or Walsh? A I'm sorry. Could you repeat that one more time? Q After this interview, which is January 25th of 1983, was any further investigation conducted of Mr. Lestz, Mr. Levi or Mr. Walsh? A Yes. Q And what was that? A The comparison of the fingerprints and everything with the three individuals were compared with theH&0*(( latent fingerprints that were obtained from the crime  ? scene. [Xw5 ?  ԍOf course subsequently, there were fingerprints submitted from Roy Swafford. The results were all negative for Mr. Swafford.] Q When did that occur? A I don't specifically recall. I don't have the case file in front of me. Q That had not already been done? A I'm not sure when that was done. Q Mr. Walsh's name was first given to you in March of 82. This is ten months later. You don't think that the fingerprints had been submitted previously? A I don't recall. Q Okay. A I don't Q So you can't say [then] that investigation occurred after January of 1983 with any certainty? A Correct. Q Other than that, was there any further investigation conducted of these three individuals? A Not that I recall at this time.   (PCR4T. 55759).   Q So would it be fair to say after January 25th, 1983 you ceased investigating Mr. Lestz because you just didn't find him credible? A That's a fair statement. Yes, sir.   (PCR4T. 569). Captain Burnsed's testimony on February 7, 1997, for the first time revealed that Mr. Walsh and Mr. Lestz were not eliminated after they were "thoroughly investigated and discarded#0*(( as suspects." State's Response dated 10/22/90 at 17). Thus, the courts in 1990 and collateral counsel were mislead by the representations that Walsh was eliminated after a "thorough" investigation eliminated him; presumably this meant something more than Captain Burnsed's credibility determination. The 1997 Burnsed testimony also flies squarely in face of the January 31, 1983 report authored by Captain Burnsed wherein he stated there was more investigation that needed to be done:   With the interview being terminated with MR. LESTZ, inv. Buscher accompanied by Cpt.Burnsed responded back to INTERNATIONAL AIRPORT, Orlando, Florida on Thursday, January 27, 1983. It is felt that after reviewing all of the information obtained from both LEVI and LESTZ in reference to this case, that once again MR. LEVI should be interviewed. Further investigation is to follow.   (Def. Exh 5 at 4). As to reinterviewing Mr. Levi, Captain Burnsed testified at the evidentiary hearing below as follows:    Q On redirect examination you were asked what else could you have done after January 25th of 1983. And your answer was nothing. Couldn't you have gone back to interview Levi again? A Certainly could, yes. Q Since his story and Lestz' story seem to corroborate each other at that point in time? MR. FOX: Objection. Misstatement, Your Honor. THE COURT: Be overruled. MR. MCCLAIN: Q Didn't they now both indicate that Walsh was in the vicinity of the homicide at the time of the homicide? '0*((ԌMR. FOX: Objection. He did not indicate anything about homicides, just indicating where he was. He's projecting things into the question. THE COURT: Be overruled. MR. MCCLAIN: Q After January 25th of 1983 didn't both Lestz and Levi place Walsh in the vicinity of the homicide at the time of the homicide? A Yes. Q Did you go back to Levi in light of what Lestz said to try and get more information? A No. Q Did you go and confront Walsh with this? A I don't recall. Q In fact, you didn't go ask Walsh, Lestz says you dropped him off at this laundromat half a block away from the Fina Station, what did you do that morning? You didn't do that, did you? A I don't recall. No, I did not. No, I did not.   (PCR4T. 58283). When collateral counsel found Mr. Lestz in 1994, he indicated that Mr. Walsh had two .38's that he was anxious to dispose of on the evening of February 14, 1982. To that end, Mr. Walsh had Mr. Lestz drive to various bars in the Daytona area while Mr. Walsh tried to unload the .38's. One of the places Mr. Lestz took Mr. Walsh that evening was the Shingle Shack. There, Mr. Lestz remained in his vehicle while Mr. Walsh disappeared inside. (PCR4T. 12223, 12728). Ray Cass, Mr. Swafford's trial attorney, testified that he did not have any of the police reports concerning James Walsh,'0*(( Michael Lestz, and Walter Levi. (PCR4T. 23538). Mr. Cass stated: "I don't think I have to go through the whole thing, because I wasn't aware of Mr. Walsh." (PCR4T. 236). Mr. Cass indicated that the information in the reports was "[v]ery significant." (PCR4T. 238). If Mr. Cass stated: "I can assure you if I had had that [the information concerning Mr. Walsh], I would have I would have used it." (PCR4T. 239). Mr. Cass did acknowledge that he had a pretrial conversation with Gene White, the trial prosecutor, during which Mr. Cass inquired about the investigation of other suspects in the Rucker homicide. At that point, the following occurred:   And when I mentioned any others, I said, well, where are they, you know. And he said well, they had ruled them out, but they are there. And he indicated with his hand in the air. He had some fifty file boxes. And I said, well, you don't want to pull them. He said, no, you can just go ahead and look through them yourself, if you want. Q So now you're saying that you actually did ask him to obtain the suspects, to obtain the reports regarding the suspects? A No. I just left it there. I thought what he told me and what I guess I presumed, rightly or wrongly, that they didn't have any relevance to the case, that there was no nothing to be gained by going through enough files it would have taken me maybe a month to go through every one of those files.  ?   (PCR4T. 261).C@  ?`" ԍInterestingly, in the State's 1990 Response to the 3.850, the State asserted that the Walsh "allegations are based on documents which were provided by the Volusia County Sheriff's Office, not from the State Attorney's file." (Response dated 10/22/90 at 17). The State Attorney's Office did not disclose fifty file boxes of other suspects' materials pursuant to 119 requests. Nor did the State Attorney's Office disclose the police reports concerning Mr. Walsh, Mr. Lestz, and Mr. Levi. '0*(( The 1990 Response implied that the reason for this is that State Attorney did not have these documents. If Gene White truly had these materials at the State Attorney's Office, then why did the State Attorney's Office not disclose them pursuant to Mr. Swafford's 119 requests?C x0*((ԌFive months after the last interview with Mr. Lestz, Mr. Swafford's name first surfaced as a suspect. In June of 1983, Roger Harper contacted Volusia County authorities indicating that he may have information regarding the Rucker homicide. A June 21, 1983 Supplemental Narrative was prepared by Volusia County law enforcement. According to this report, Mr. Harper indicated that he and four other individuals had traveled from Tennessee to Daytona for the 500 in February of 1982. The group included Roy Swafford. According to Mr. Harper, "SWAFFORD then left by himself late in the evening of 2/13/82 and remained gone the entire night not returning until late in the morning of 2/14/82." (Def. Exh. 8 at 2). Mr. Harper was serving a seven year sentenced for "his part in the burglary of a motor home and the shooting of the motor home's occupants". (Def. Exh. 8 at 1). This crime had occurred June 19, 1982, in Bay County, Florida. (R. 144043). Mr. Swafford was Mr. Harper's codefendant in that case. Mr. Harper told Volusia County authorities that, after Mr. Harper's arrest in Bay County, "SWAFFORD apparently tried to put the entire blame on [Harper]." (Def. Exh. 8 at 5). Before contacting the authorities about the Rucker homicide, Mr. Harper had contacted an attorney in the Daytona Beach area, Mr. John Tanner. (Def. Exh. 8 at 5). Mr. Harper had told Mr. Tanner that he, Harper, "might have information on a murder. He`"x0*(( stated that he received two letters from John Tanner indicating that the information appeared to be good, and that he wanted $3,000.00 to represent him." (Def. Exh. 8 at 5). Mr. Harper also reported that on the evening of February 14th, the group from Tennessee got into an altercation at the Shingle Shack. Mr. Harper reported that Mr. Swafford pulled a gun on individuals who were having a dispute over money with his traveling companions. Shortly thereafter police arrived. Meanwhile, Mr. Swafford hid his gun in a bathroom. (Def. Exh. 8 at 4). According to Mr. Harper, when Mr. Swafford was arrested, a male employee of the Shingle Shack came out with a gun he claimed to have found in the bathroom. The gun was turned over to the police. (Def. Exh. 8 at 4). After Mr. Harper came forward, this gun was found to still be in police custody. Ballistics tests were done, and the conclusion was reached that this gun had fired some of the bullets in the Rucker homicide. Employees from the Shingle Shack were called at Mr. Swafford's trial to testify regarding the seizure of the gun at the Shingle Shack on February 14, 1982. Clark Bernard Griswold and Karen Sarniak, gave two totally different versions as to where this weapon had been seized. Indeed, Mr. Griswold could not identify Mr. Swafford as the individual whom he believed had left a gun in the Shingle Shack on the evening of February 14, 1982. (R. 1042). Mr. Griswold said that he saw an individual acting suspiciously when the police arrived. The individual briefly went into the men's restroom. (R. 1045). Even though he'0*(( didn't see a gun on this individual or see the individual hide a gun, (R. 1051) Mr. Griswold testified that he somehow knew that the individual had hidden a gun in the men's restroom (R. 1045). After subsequently searching the men's restroom, Mr. Griswold retrieved a gun from a three foot high trash can in the men's restroom. Mr. Griswold gave it to the police after the suspicious individual was taken into police custody and no gun was found on that person. (R. 1059). Mr. Griswold related that the individual in question, at the time of his arrest, was wearing only jeans and a black tshirt (R. 1052). The individual was not wearing a leather jacket, as Mr. Harper had indicated that Mr. Swafford was wearing. (R. 825). The other State's witness, Karen Sarniak, specifically remembered and identified Mr. Swafford at his trial. However, she stated that she actually observed Mr. Swafford putting a gun in a wastepaper basket in the ladies' restroom (R. 10931094). She remembered this because Mr. Swafford had asked her to "first look in to make sure there wasn't anybody else in there." (R. 1096). She then accompanied him into the ladies restroom and she watched as he took "a gun on his person [and] put [it] in the trash." (R. 1096). He had also asked her to "make sure no one came in" while he was in the ladies restroom. (R. 1097). She also testified that she never saw the police actually seize the weapon from the ladies restroom. (R. 1094). A police officer testified that the gun taken into custody was the one provided by Mr. Griswold which Mr.%0*(( Griswold indicated came from the men's restroom at the Shingle  ? Shack. (R. 1062).h ? ԍIn his closing argument, the trial prosecutor recognized that there was a problem with the testimony from Mr. Griswold and Ms. Sarniak. So he argued: "What is important on the Shingle Shack episode where the gun was recovered is, one, there was a gun recovered, and the gun is the one which was identified here by the serial numbers by the police officers and placed in the records." (R. 1393). Later, he called the matter "a red herring run before your path here today." (R. 1394). He wrote off the contradictory testimony saying: "The only person that had any reason to throw away that gun was the person that the police were after, the person that the police suspected. They were after Mr. Swafford. He was the only one that they were after. Is a man just going to throw away a gun when there is nobody questioning him and it doesn't even appear to be similar to anything?" (R. 1394). Of course the jury did not know that on February 14, 1982, Mr. Walsh told Mr. Lestz to drive around the Daytona Beach area so that he could find a place to unload two .38's. This information was contained in a police report that was not received by defense counsel and would have provided an answer to the prosecutor's otherwise rhetorical question. At Mr. Swafford's trial, the State relied heavily on the gun which had been seized at the Shingle Shack on February 14, 1982 and which the State argued had been in Mr. Swafford's possession. The State's reliance on this gun is not surprising given the fact that no scientific evidence in any way linked Mr. Swafford to the victim in this case. There was no hair, fiber, finger prints, blood or any other forensic evidence linking Mr. Swafford to the crime. The State, in order to "prove" that Mr. Swafford possessed this weapon, used an Roger Harper to link the gun to Mr. Swafford. Mr. Harper stated that the gun was "the exact type as [Mr. Swafford] had with the hammer like this" (R. 810). Undisclosed exculpatory evidence regarding Mr. Harper was0*(( presented in Mr. Swafford's previous Rule 3.850 motion. Indeed, Mr. Harper failed to give full disclosure when he testified about his expectations and efforts to gain consideration for his testimony. (R. 83536). At Mr. Swafford's trial on October 31, 1985, Mr. Harper indicated that he was getting out of prison in "late December or early January this year; about sixty days." (R. 835). Mr. Harper further testified:    Q Have you received any favorable treatment or any type of benefit from this information which you were wanting to trade for favorable treatment? A No, sir. Q But haven't I told you if you cooperate and tell the truth and to be honest, that I will try to continue to get you some favorable treatment as far as maybe an early release period? A Yes, sir, that's what you said. Q But it hasn't been successful yet? A No, sir.   (R. 83536). However, undisclosed exculpatory evidence demonstrated that there was much more to the story. At the evidentiary hearing conducted in February of 1997, Mr. Swafford's trial attorney, Ray Cass, testified:   Q And so at that point in time in 1984 you had made discovery demand upon the state for any exculpatory evidence? A (Witness nods head.) Q And you asked the witness whether or not he was receiving any favorable treatment? A Yes, sir. '0*((ԌQ And his answer was no? A That's correct. Q Now, after that question was asked let me call your attention to what occurs next. There's a bottom of that same page. What page number are you on? I forgot. A This is page twentythree. And it is the deposition of Roger Dean Harper taken on May 21st, 1984. Q Mr. White then asked to go off the record? A Yeah. Down at line twentyfour, Mr. White, can we go off the record for a minute and I will give you this. Q Okay. And then if you flip to the next page, what occurred? A By Mr. Pearl, question, Mr. Harper, let me show you a yellow sheet of paper and ask you whether your signature appears at the bottom of that paper. And, answer, yes, sir. Is that a letter of which you wrote to Mr. Gene White, the assistant state attorney. Yes, sir, it is. Is it genuine. Yes, sir. Let me show you a photocopy of a document and ask you whether or not you recall or you received in the mail an original of this document. Answer, yes. Is that Q So, apparently, Mr. White when you went off the record I don't know if you have any independent recollection from being there provided a specific document that Mr. Pearl used? A Piece of yellow paper. '0*((ԌQ And let me call your attention to an attachment to the depo. Papers in front of you. A Yes, sir. I have read it. Q Now, what is the date of that letter? A It's 4/22/84. Q Is it a letter from Roger Harper to Gene White? A To Gene White, sincerely, from Roger Harper. Q So, apparently, Gene White provided you with that letter at the deposition? A Yes, sir. Because it was marked and made a part of the deposition. Q Since Mr. White provided you that letter at the deposition, would you have expected that he would have provided you with subsequent letters from the witness? A I would think so. Q Did he? A No, sir. I didn't ask for any, but I Q Well, let me ask you A My demand was still Q Right. A was filed in the case.   (PCR4T. 27880). In fact, Mr. Cass did not receive a series of letters that were written by, to or regarding Mr. Harper. These included: 1) a handwritten letter from Mr. Harper to Mr. White dated 8/12/84, which included the statement: "I'll keep my end of the deal if you will. The way things are going I'll be out before you get Swafford to trial. Believe me, I can be very instrumental in weather [sic] or not my family in Tennessee make it to the trial.'0*(( . . I know you can have me held in contempt of court for not testifying, but that's exactly what your [sic] going to have to do. I don't want to see Swafford get out of this no more than you do. But I'm intitled [sic] to relief and I want it now, not next year!" (Def. Exh. 9)(Emphasis added); 2) a handwritten letter from Mr. Harper to Gene White dated 5/16/85, which included another effort to get consideration: "I'm writing to ask if you will help get me to work release" (Def. Exh. 10); 3) a handwritten letter to Gene White dated 8/5/85, which included the following statement: "I finish my sentence in Dec. 85, 4 months from now, but I still want out as soon as possible!! Like I said befor, [sic] I do not want a parole but they could just let me go, if they wanted! I wrote and ask Dave Hudson about the reward that was suppose to be offered but he never answered. I'm  ? interest [sic] in that, can the reward be collected?"q ?8 ԍDave Hudson was a deputy with the Volusia County Sheriff's Office. (R. 820).q (Def. Exh. 12); 4) a typed letter from Gene White to the Florida Parole Commission dated August 27, 1985, which sought the Parole Commission to "give Mr. Harper due consideration" (Def. Exh 13); 5) a typed letter from a Parole Commissioner to Gene White dated August 30, 1985, which indicated that Mr. Harper's presumptive parole release date was October 18, 1990, and that the Commission@ 0*(( would make Mr. White's letter "a part of Mr. Harper's file and  ? will be given every consideration" (Def. Exh. 14).>  ? ԍAs was pled in Mr. Swafford's 1990 Motion to Vacate, Roger Harper filed on November 12, 1985 (the very day Mr. Swafford was sentenced to death) a Motion for Mitigation of Sentence in his Bay County case. (Def. Exh. 17). Even though the motion was untimely, it was granted and Mr. Harper was ordered to be released immediately. (Def. Exh. 18). This effectively granted Mr. Harper what he asked for from Gene White in his August 5, 1985, letter ("I do not want a parole but they could just let me go, if they wanted!"). (Def. Exh. 12).> Mr. Swafford's trial counsel specifically testified that he did not receive this series of letters before Mr. Swafford's trial and that the letters would have been used to impeach Mr. Harper had they been disclosed. (PCR4T. 24145). Mr. Cass further testified that only after the trial did he learn that Mr. Harper was trying to receive several thousand dollars as a reward for his coming forward against Mr. Swafford. (PCR4T. 24546). Mr. Cass learned of Mr. Harper's efforts to receive the reward from John Tanner sometime in January or February of 1986. (PCR4T. 246). At that time, he wrote Mr. Swafford a letter which stated in pertinent part:   In connection with Roger Dean Harper, I received communication from John Tanner advising me that Harper was attempting to collect a $5,000.00 reward which he tells me was offered and published by PETCON who is the parent corporation of FINA here in Daytona and which had been offered for information leading to the capture and conviction of the killer of Brenda Rucker. He further tells me that a reward poster was issued and had called me to find out if I had a copy of it. This is the first notice that I have had that a reward had been offered. If this is so, this would be information of evidence recently received and not available at the time of during the trial or in any event, not furnished to the defense by the prosecution. . . It goes without saying that if this information had been available at@! 0*(( the time of trial it would have been very effective in the impeachment of the testimony of Roger Harper and please note when you read his deposition and he is asked if he expected to receive any special consideration for his testimony he states no.   (Def. Exh. 15). Mr. Cass testified that Mr. Harper's efforts to get a $5,000 reward and the information in the letters to and from Mr. Harper were not consistent with Mr. Harper's testimony: "This would totally impeach him, impeach his testimony as to his interest in testifying on behalf of the state." (PCR4T. 247). 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 other attorney, Howard  ? Pearl, X ? ԍHoward Pearl was another attorney with the public defender's office who assisted Mr. Cass during the discovery phase of the proceedings against Mr. Swafford. and identified that gun as being Roy Swafford's. He admitted in that deposition that he could not tell one gun from the other and, at trial, admitted this as well (R. 826). The other "family members" from Nashville who testified on behalf of the State did not link this gun to Mr. Swafford. Carl 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 was Roy Swafford's (R. 859). Ricky Johnson, the only other remaining family member who testified stated that he never saw the gun (R. 885). 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). No one but Roger#" 0*(( Harper, whose testimony was essentially bought, testified that this particular weapon belonged to Roy Swafford. After Mr. Harper came forward, Mr.Swafford was arrested and charged with the Rucker homicide. 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 the four individuals from Tennessee, Mr. Harper and his family members. The group camped outside of town at a campground. Mr.Swafford left the camp alone after midnight and was away from the campground in a vehicle until around 7:00 a.m. on February 14th. In fact, the prosecutor argued in his rebuttal closing: "Most of the witnesses said that he [Swafford] came back around daybreak, and they kept referring to 6:00 o'clock or 6:30, and I asked the last witness, Ricky Johnson, what is the time zone where you're from, Nashville. The light came on. Nashville is on Central Standard Time. They're an hour behind our time. So, when they refer to daybreak, they're probably referring to where they live, and the sun comes up there an hour  ?  earlier, 6:00 o'clock." (R. 1384).T   ?x ԍOf course this argument is ludicrous. Los Angeles is on Pacific Standard Time, three hours earlier than Eastern Standard Time. When it is 7:00 a.m. in Daytona Beach, it is 4:00 a.m. in Los Angeles. The prosecutor's argument followed to its logical conclusion would be that the sun comes up in Los Angeles at 4:00 a.m. Time zones exist so that the sun rises at approximately the same time within each time zone. So the whole argument that Mr. Swafford returned to the camp at around 7:00 a.m. instead of around 6:00 a.m. is premised upon very shaky ground.T pp2 It was undisputed that Mr. Swafford was with a prostitute until about 6:00 a.m. on February 14th. Thus, the State@# 0*(( contended that Mr.Swafford abducted Ms. Rucker, sexually assaulted her twice, burned her with cigarettes, and killed her in that onehour window of opportunity, between 6:00 a.m. when he left the prostitute and 7:00 a.m. when he returned to the camp. Again, 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. The gun was turned over to the police by Mr. Griswold who had found the gun in a trash can in the men's restroom. He did not see who placed the gun there, though he was suspicious of one particular individual who had been in the men's restroom early. He was unable to identify who that individual was. Mr. Swafford's jury heard nothing about James Michael Walsh, Michael Lestz or Walter Levi. The jury was also unaware of Mr. Harper's numerous attempts to get consideration for his testimony against Mr. Swafford and the testimony of his family members from Tennessee. Without this additional evidence, the jury returned guilty verdicts of firstdegree murder and sexual battery. However, Mr.Swafford was acquitted of robbery. The penalty phase was conducted on November 7, 1985. Defense counsel presented no defense at the penalty phase proceedings. After the jury recommended death, Judge Hammond sentenced Mr.Swafford to death on November 12, 1985. This Court affirmed the conviction%$ 0*(( and sentence on direct appeal. lSwafford v. State, 533 So. 2d 270 (Fla. Swafford v. State, 533 So. 2d 270 (Fla. 1988)lSwafford v. State, 533 So. 2d 270 (Fla. 1988). On September 7, 1990, Governor Martinez signed a death warrant setting Mr.Swafford's execution for November 13, 1990. Until the signing of the warrant, Mr.Swafford was unrepresented in the postconviction process. The Office of the Capital Collateral Representative (CCR), the office responsible for providing effective representation to Mr.Swafford in collateral proceedings lSpalding v. Dugger, 526 So. 2d 71 (Fla. Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988)lhad been overwhelmed by Governor Martinez's warrant signing policies. In the fall of 1990, CCR was on the verge of collapse. CCR had more active warrants than it had experienced attorneys to work on them. The experienced attorneys, who had not yet resigned and/or left, were burned out and in deteriorating health. In fact, on October 24, 1990, this Court entered an Administrative Order recognizing the difficulties confronting CCR and creating the Overton Commission to investigate the difficulties and issue a report. (PCR1. 361). After the signing of the warrant, Mr.Swafford's case was assigned to Jerome Nickerson, who "was basically three years out of law school." (PCR4T. 328). Mr. Nickerson explained: "I was the most junior of these four senior attorneys and basically I was being pressed into service, like it or not." (PCR4T. 329). He elaborated: "I was very aware of the fact that we had limited investigatory resources in terms of investigators and we had limited attorneys. And I had what the office could provide me and that was basically for all intents and purposes two baby'% 0*(( attorneys and myself, three years out of law school, and we were going to do it." (PCR4T. 340). Limitations arose from fiscal considerations. "Because we were operating under certain [fiscal] financial structures. Our chief administrative officer would not allow us to go out and get an investigator investigator [sic]. We could get mental health people, no problem. . . . But in terms of going out and just hiring another criminal investigator, no, we were we were not given those kinds of resources and we had to rely on what we had." (PCR4T. 341). Through Chapter 119 materials disclosed by the Volusia County Sheriff's Office, Mr. Nickerson learned of Mr. Walsh and the two other individuals who had been with him in the Daytona Beach area. (PCR4T. 34243). Based upon the disclosed police reports regarding these three individuals, Mr. Nickerson pled a constitutional claim in a 3.850 filed on Mr. Swafford's behalf. However, due to the shortness of time between the disclosure and  ? the due date under the then controlling Rule 3.851,  ?X ԍRule 3.851 in 1990 required postconviction motions to be filed within 30 days of the signing of warrant that set an execution more than 60 days away. Under this rule, Mr. Swafford's 3.850 was due thirty days after his warrant was signed on September 7, 1990. Mr. Nickerson did obtain from this Court a brief extension of the Rule 3.851 due date. "we really did not have any additional opportunity to investigate the materials that were disclosed to us". (PCR4T. 344). "When I filed Mr. Swafford's 3850 the Lestz/Walsh, that crew, was kind of in its infancy. I didn't have a chance to go ahead and run it all the way out." (PCR4T. 365). &@ 0*((ԌHarun Shabazz was a second chair assigned to Mr. Swafford's case in 1990. Mr. Shabazz had graduated from law school in 1990. A month and a week after starting at CCR, he was assigned to assist Mr. Nickerson on Mr. Swafford's case. (PCR4T. 416). Mr. Shabazz was the individual on the Swafford litigation team who was specifically assigned to make efforts to locate Walsh, Lestz, and Levi. Mr. Shabazz "went through the Chapter 119 public records material, which consisted of several police reports. I sifted through there for names, addresses, telephone numbers and the like." (PCR4T. 418). Mr. Shabazz contacted state and federal prisons in effort to track down the three individuals. However, he was unable to obtain any helpful information. Specifically as to Mr. Lestz who had been incarcerated in the federal system, Mr. Shabazz was told "that once they release the individual, they didn't give any information how you contact an individual, telephone number or address and things of that sort." (PCR4T. 419). Because Mr. Shabazz was unable to find a way locate Walsh, Lestz or Levi, the decision was made to hire Global Tracing Services. Global "was a private organization" that CCR hired when other efforts to locate an important witness were unsuccessful. (PCR4T. 420). Global only charged for its services if it were successful in locating the person in question. As Mr. Shabazz explained: "if Global found someone, they would call us back and say they found soandso and they would send us a bill a couple weeks later. If they didn't find%' 0*(( anyone, then they would just call us that they didn't find anybody." (PCR4T. 421). Global's record showed that they were in fact first contacted in 1990 in order to locate Michael Lestz for CCR. Global's records indicated that the inquiry remained "open and active" even though Global was not able to locate Mr. Lestz. (PCR4T. 594). Since Global was not paid until it was successful in locating the subject of inquiry, inquiries remained open and active until the subject was located. Global's incomplete records showed that at least one follow up inquiry was received from CCR in 1994, shortly before Global was finally able to locate Michael Lestz. (PCR4T. 594). Meanwhile on October 15, 1990, Mr.Swafford had initiated postconviction proceedings in state circuit court. Included in Mr.Swafford's motion was a no adversarial testing claim premised the nondisclosure of information concerning Michael Lestz, Walter Levi, and Michael Walsh and their numerous statements implicating each other in the Rucker homicide. Also included was a no adversarial testing claim premised upon the available but undisclosed impeachment concerning Roger Harper. Despite efforts to locate these individuals, they could not be found in the fall of 1990.  ?`" On October 22, 1990, the State submitted its response. X`" ?$ ԍAlthough this response indicated service by fax on October 22, 1990, this Response was not stamped "filed" until October 31, 1990. Therein the State asserted "James Michael Walsh, Walter Levi and#( 0*(( Michael Lestz were thoroughly investigated and discarded as suspects." (State Response dated 10/22/90 at 17). 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 (PCR1. 455). Mr. Nickerson argued at that hearing: "We have pled that another individual specifically a Mr. Walsh committed this offense. We are saying Mr. Swafford is innocent." (Transcript of 10/24/90 hearing at 13). Mr. Nickerson explained: "Ineffectiveness counsel at the guilt innocence goes to Mr. Walsh. It goes to the materials that weren't disclosed by the state. It goes to what the trial counsel try to do to properly deploy an alibi slash reasonable doubt type of defense." (Id. at 1314). On October 30, 1990, the circuit court signed an order denying the motion to vacate (PCR1 43651). On November 8, 1990, Mr.Swafford appealed to this Court. Oral argument was held on November 9, 1990. A temporary stay was issued until 1:00 p.m. on November 15, 1990. On November 14, 1990, this Court issued its opinion denying all relief. mSwafford v. State, 569 So. 2d 1264 (Fla.Swafford v. State, 569 So. 2d 1264 (Fla. 1990)mSwafford v. State, 569 So. 2d 1264 (Fla. 1990). Mr.Swafford next filed for federal habeas corpus review. The federal district court denied relief. On November 15, 1990, the Eleventh Circuit granted Mr.Swafford a stay of execution in order to hear Mr.Swafford's appeal. Mr. Nickerson terminated his employment with CCR the next day, November 16, 1990. (PCR4T. 349, 425). ') 0*((ԌWhile the appeal was pending in the Eleventh Circuit, Mr.Swafford, through a newly assigned lead attorney, continued to conduct further investigation into his case. (PCR4T. 41722). This included additional efforts to locate Lestz, Levi and Walsh. (PCR4T. 41820). Global continued to search pursuant to the open and active inquiry. (PCR4T. 594). Mr. Swafford's reconstituted litigation team also sought additional ways to track down Walsh, Lestz and Levi. (PCR4T. 41819). The federal appeal was held in abeyance after Mr.Swafford filed a second motion to vacate. While that was pending, Michael Chavis, an investigator hired by CCR in September of 1992, was assigned to Mr. Swafford's case in October of 1992. (PCR4T. 45152). He took over the duties that Mr. Shabazz had been performing up to that point. PCR4T. 42223). He testified that he also tried to find some way to locate Walsh, Lestz and Levi. Starting in October of 1992, he reviewed all the 119 materials seeking someway to find these individuals. Just as Mr. Shabazz before him, Mr. Chavis was unable to find a lead which would enable him to locate Walsh, Lestz or Levi. (PCR4T. 45255). In early 1993, Mr. Chavis recontacted Global. (PCR4T. 456). He double checked with them making sure they had the correct names, dates of birth, and social security numbers. (PCR4T. 45657). In 1993, Global still was unable to find Walsh, Lestz and Levi. In early 1994, Mr. Chavis again recontacted Global to double check on its progress on the open, active request. No new information was'* 0*(( provided because Mr. Chavis had no new information. (PCR4T. 458). Shortly thereafter in April 1994, Global reported an address for Michael Lestz. (PCR4T. 459)(Def. Exh. 20). Meanwhile, Mr. Swafford's second motion to vacate had been summarily denied. While Mr. Swafford's appeal was pending, a remand was ordered to get the facts in reference to new evidence of ex parte contact between the State and the presiding judge in 1990 concerning the preparation of the order denying the first 3.850. After that hearing was held, this Court affirmed the summary denial of the second 3.850. mSwafford v. State, 636 So. 2d 1309 (Fla.Swafford v. State, 636 So. 2d 1309 (Fla. 1994)mSwafford v. State, 636 So. 2d 1309 (Fla. 1994). In April of 1994, when Mr.Swafford's collateral counsel was finally able to locate Michael Lestz, he provided Mr.Swafford's collateral counsel with an affidavit which strongly corroborates the 119 material that had not been disclosed to Mr.Swafford's trial defense team. In 1994, Mr. Lestz reiterated his statement to the police on January 25, 1983. He also recalled that Mr. Walsh had gone to the Shingle Shack on February 14th when Mr. Lestz had been driving him to various establishments as Mr. Walsh sought to unload two .38's. Mr. Lestz also explained that he was afraid of Mr. Walsh and had tried to make himself untraceable after his release from prison in December of 1984. "Well, I knew that Walsh was pretty peeved at me and he had escaped one time in Arkansas already and I just had reason to be concerned with him finding me." (PCR4T. 80). Mr. Lestz instructed his family members to not disclose his whereabouts if any one contacted them'+ 0*(( looking for him. He made sure his driver's license showed the wrong address. He avoided using his name on any business transactions or records. (PCR4T. 80, 9495). However, in December of 1993, Mr. Lestz had filed for "federal bankruptcy." (PCR4T. 81). Despite efforts to locate Mr. Lestz previously, members of Mr. Swafford's assigned litigation team testified that they were unable to ascertain Mr. Lestz' whereabouts until April of 1994. (PCR4T. 423). After Mr. Lestz was located, Mr.Swafford's litigation team immediately presented a new motion to vacate. Based on information obtained from Mr. Lestz, Mr.Swafford filed a new Rule 3.850 motion on June 13, 1994. After the circuit court summarily denied relief, this Court reversed and ordered an evidentiary hearing. lSwafford v. State, 679 So. 2d 736 (Fla. Swafford v. State, 679 So. 2d 736 (Fla. 1996)lSwafford v. State, 679 So. 2d 736 (Fla. 1996). The evidentiary hearing was held February 67, 1997. Before the hearing commenced, Mr. Swafford filed a Motion To Disqualify the State Attorney's Office. This was premised upon the election of John Tanner as the State Attorney in the November, 1996 election. Mr. Tanner assumed office in January of 1997. Mr. Harper had disclosed to the police in 1983 that he contacted Mr. Tanner to obtain legal assistance in reference to the information he claimed he had against Mr. Swafford. (Def. Exh 8). Mr. Tanner had written Mr. Harper twice advising him about the usefulness of the information Mr. Harper possessed and offered to represent Mr. Harper in the matter for $3,000. ', 0*(( Subsequent to Mr. Swafford's trial, Mr. Tanner contacted Ray Cass, Mr. Swafford's trial counsel, and revealed that Mr. Harper had been trying to obtain a $5,000 reward for the information he had provided against Mr. Swafford. (Def. Exh 15). Given that Mr. Tanner was a material witness, Mr. Swafford sought the disqualification of the entire State Attorney's Office. The  ?` motion was denied.X`  ? ԍThe circuit court did permit Mr. Swafford to call Mr. Tanner as a witness. However, he testified that he had no memory whatsoever about the matter. (PCR4T. 51821). During the evidentiary hearing, Mr. Swafford sought to introduce the "Overton Commission Report, which has a file stamped date of June 4, 1991 by the clerk of the Florida Supreme Court." (PCR4T. 485). Mr. Swafford argued that the report contained factual information regarding the adequacy of CCR's funding in 199091 and was relevant to the issue of CCR's due diligence in Mr. Swafford's case, and that "this exhibit is something that this Court can take judicial notice of." (PCR4T. 487). The State argued against the introduction of the report saying "there is no right effective postconviction or collateral counsel." (PCR4T. 486). The circuit court refused to admit the report saying "I'm not going to allow that to be received in just because I don't think it's been properly authenticated." (PCR4T. 489). When Mr. Swafford's counsel sought to point out the judicial notice provisions, he was cut off by the circuit: "Well, right or wrong, I have ruled. We need to move on or we're going to be here into the evening." (PCR4T. 489).#-0*((ԌMr. Swafford then sought to introduce "Shevin report, which was also received by the Florida Supreme Court and it was pursuant to the direction of the Florida Supreme Court that Robert Shevin conduct[ed] his evaluation of CCR." (PCR4T. 489). The State indicated it had "the same objection to that report as we just had to the one ". (PCR4T. 489). The circuit court interjected saying: "Same result." (PCR4T. 490). Thereafter, the circuit court entered its order denying 3.850 relief. The circuit court ruled that Mr. Swafford had two years from the disclosure of the 119 materials on October 15, 1990, to locate Mr. Lestz. Without identifying what specific acts Mr. Swafford's collateral counsel failed to undertake, the circuit court using only hindsight concluded that because Mr. Lestz lived in a small town (Elkville, Illinois) which was identified in a 1983 document as his residence, had collateral counsel followed up on this information he "would have discovered that Mr. Lestz was living three (3) miles from Elkville." (PCR4. 286). As to the merits of Mr. Swafford's constitutional claim, the circuit court said: "This Court finds that had the testimony of Mr. Lestz been presented to the jury that it would not have probably produced an acquittal." (PCR4. 287). No cumulative consideration was given to all of the exculpatory evidence that the jury did not hear and which Mr. Swafford has properly plead in his 3.850's. Thereafter, Mr. Swafford perfected this appeal.'.0*((Ԍ ? x! SUMMARY OF ARGUMENT ă   1.` ` Because the State affirmatively misled this Court and Mr. Swafford's collateral counsel in 1990, and did not disclose significant exculpatory evidence until at the evidentiary hearing conducted in February of 1997, this Court must review the merits of the resulting Brady cumulatively with the other exculpatory evidence previously pled as not being heard by Mr. Swafford's jury and as undermining confidence in the reliability of Mr. Swafford's trial. 2.` ` Under the proper cumulative analysis required by Kyles v. Whitley and State v. Gunsby, Mr. Swafford is entitled to new trial at which the wealth of exculpatory evidence not heard by his original jury can be presented and considered. This exculpatory evidence, not heard by Mr. Swafford's original jury, more than undermines confidence in the outcome. It clearly establishes the trial resulted in verdict unworthy of confidence because a wealth of evidence supporting Mr. Swafford's claim of innocence was not heard. 3.` ` The circuit court erroneously refused to consider reports ordered by this Court which were undertaken in order to evaluate the adequacy of CCR's funding and staffing. These reports were highly relevant to the issue of collateral counsel's diligence in searching for Mr. Lestz. They also establish interference by State of Florida with the adequacy of counsel's resources. 4.` ` The circuit applied the wrong legal standard in evaluating collateral counsel's diligence in searching for Mr. Lestz. A proper analysis would have resulted in a finding of diligence. 5.` ` The circuit court erred in not disqualifying the State Attorney's Office, given that the newly elected State Attorney was a material witness as the circuit determined. /0*((  ?    ` ` h)% ARGUMENT I THE STATE'S FALSE ARGUMENT IN 1990 AND ITS FAILURE TO REVEAL THAT A THOROUGH INVESTIGATION OF WALSH, LESTZ AND LEVI DID NOT OCCUR VIOLATES DUE PROCESS AND DEFEATS ANY PROCEDURAL BAR THAT COULD ARISE FROM PRIOR DECISIONS FROM THIS COURT WHICH WERE PREMISED UPON THE STATE'S MISINFORMATION AND FALSE ARGUMENT.  ?  ` `    A. INTRODUCTION.   ?(  In 1990, Mr. Swafford filed a 3.850 which asserted that he had received an constitutional inadequate adversarial testing. He alleged both that the State had failed to disclose and that trial counsel failed to uncover exculpatory evidence which undermined confidence in the outcome of the capital trial. This evidence concerned Mr. Walsh, Mr. Lestz and Mr. Levi and the police reports regarding the State's investigation of those three individuals as suspects in the Rucker homicide. Mr. Nickerson, Mr. Swafford's attorney at the time, specifically argued that Mr. Swafford was innocent and that Mr. Walsh was the real perpetrator of the Rucker homicide. Mr. Nickerson argued that as to Mr. Walsh an evidentiary hearing was necessary as to both ineffective assistance of counsel and the State's breach of its obligations under the federal constitution: "The state tells you no hearing on ineffective assistance at the guilt innocence. Ineffective counsel at the guilt innocence goes to Mr. Walsh. It goes to the materials that weren't disclosed by the state." (Transcript of 10/24/90 hearing at 13). The State's Response to 3.850 allegations regarding Mr. Walsh was: h)'00*((Ԍ  The above allegations are based on documents which were provided by the Volusia County Sheriff's Office, not from the State Attorney's file. There is constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. [Citation]. Swafford has failed to show that this hearsay information was admissible, and failed to demonstrate any culpability of Walsh, so information regarding the investigation would not have changed the outcome. [Citation]. While Swafford has not demonstrated materiality and this claim could be summarily denied, the state has learned that the Volusia County Sheriff's files were provided to defense counsel and can demonstrate such at an evidentiary hearing. Furthermore, James Michael Walsh, Walter Levi, and Michael Lestz were thoroughly investigated and discarded as suspects.   (Response dated 10/22/90). The State's Response contained false information which misled the circuit court, this Court, and Mr. Swafford's  ?P collateral counsel.` P ? ԍThe evidence presented by the State on February 7, 1997, was that Mr. White, the trial prosecutor had in his possession fifty file boxes of other suspect materials which he indicated to defense counsel were dead leads but offered him access to an