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A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala5TechnicalTechnical Document Style)WD (1) . 2311:22a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   293{455a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . PleadingHeader for numbered pleading paperP@n   $] X X` hp x (#%'0*,.8135@8:`  < ?@ Ѝ#Xx6X@X@#The State does at one point assert that collateral counsel should have contacted the police officers to determine whether the prosecutions representation in court were not true and that collateral counsels failure to learn of the inaccuracy was not due diligence. Answer Brief at 62. If collateral counsel has an obligation to assume that the State has not complied with its ongoing obligation to disclose exculpatory evidence, then there is no continuing obligation because it is unenforceable. To rely upon the prosecutors obligation is in essence a trap for the unwary. Moreover, collateral counsel who have refused to trust the prosecutor to honor this obligation have endured the allegation'0*(( that they are engaging in a fishing expedition. In this case, collateral counsel had no reason to believe that the police would disclose such startling impeachment of their own investigation. They instead were focused upon trying to locate the witnesses who had not been disclosed at trial: Lestz and Levi. Further, there is no evidence that Captain Burnsed would have talked to Mr. Swaffords collateral counsel, let alone reveal that he did not conduct the follow up investigation. > Accordingly, the0*((  ? merits of this claim are before this Court.< ?( Ѝ#Xx6X@X@#Implicit in the Lightbourne analysis is the notion that if any part of the Brady, ineffective assistance or newly discovered evidence claims requires merit consideration, then pursuant to the cumulative analysis requirement cumulative consideration must be given to even those portions previously presented and rejected because prejudice had been insufficiently established.  Under Lightbourne, a cumulative analysis of the prejudice component was required. This analysis was not conducted by the circuit court. The State does not even argue that the circuit court conducted a Kyles cumulative analysis. Error occurred. As for the States argument that collateral counsel did not employ due diligence in their search for Lestz and Levi. Again, Lightbourne has decided the issue adversely to the State. First, the previously undisclosed Brady violation as discussed in Argument I must be before the Court on the merits, and the required cumulative consideration defeats any procedural bar argument. This is inherently reasonable since it is the States tardy disclosure in 1997 that has created the delay in getting the issue before this Court. Second, this Court in Lightbourne made clear that due diligence does not require perfection nor 20/20 foresight. When a witness name has been disclosed as a person who may possess0*(( evidence which could lead to or support a postconviction claim, all this Court requires is evidence that collateral counsel had been actively looking for [the witness]. Slip Op. at 18. Here, the States own evidence in circuit court was that in 1990 CCR began looking for Mr. Lestz by hiring Global Tracing. This was due diligence, particular in a case where the State was adamantly maintaining that the witness was dead lead who possess no  ? exculpatory evidence. < ?H Ѝ#Xx6X@X@#The State seeks to have it both ways. Mr. Lestz possessed no relevant or exculpatory evidence; yet, collateral counsel should have moved heaven and earth to find him. The reasonableness of the search must include an evaluation of the value of the expected testimony. Here, Mr. Lestz was not called at trial by the State (as opposed to Carsons in Lightbourne). The State specifically represented to collateral counsel and to this Court that Mr. Lestz was a dead lead and possessed no relevant or exculpatory evidence. The truly amazing thing in this case is that collateral counsel nonetheless tried to find Mr. Lestz. Global Tracing was hired and was repeatedly contacted until an address turned up. Mr. Swaffords collateral counsel did exercise due diligence; and thank God they did. Otherwise, the compelling evidence of innocence would never have been located. Finally, the State in addressing its authorized issue discusses Mr. Lestz testimony in the following fashion:  ` ` As pointed out earlier, this Court specified that the remand was based on the allegation in the CCRprepared affidavit that Walsh had at the Shingle Shack a .38 caliber hand gun at or near the time that the murder weapon was discovered in the locale. 679 So. 2d at 736. However, Mr. Lestzs testimony at the hearing did not establish that allegation.  ? See supra text, at 4041. Moreover, Mr. Lestz did not testify to most of the things set out in the CCRprepared affidavit which was the basis for the hearing. H 0*((Ԍ ` `  Answer Brief at 53. The State completely overlooks the testimony that the State elicited from Mr. Lestz in its crossexamination: I did not go in the [Shingle Shack] with him. I dropped him off in the van and he went in and came back out and like I was saying, I dont know what went on in there. (PCR4T. 123). Thus, Mr. Lestz did testify that he drove Walsh to the Shingle Shack on the evening of February 14, 1982, while Walsh was attempting to unload two .38's ( that was during that time period). (PCR4T. 123). The State also overlooks the significance of this testimony in relation to Mr. Swaffords trial. In his closing argument, the trial prosecutor recognized that there was a problem with the testimony from Mr. Griswold (the bouncer from the Shingle Shack who recovered the murder weapon from the trash can in the mens room) and Ms. Sarniak (the waitress from the Shingle Shack who identified Mr. Swafford and recalled standing watch at the womens room door while Mr. Swafford placed a gun in the womens room trash can). So the trial prosecutor 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'0*(( 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 was the same Mr. Walsh who had dropped Mr. Lestz off at a laundromat a block away from the Fina station fifteen minutes before Brenda Rucker disappeared. This same Mr. Walsh whose whereabouts were unaccounted for until four hours later when he showed back up at the laundromat nervous and sweaty. 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. Under Kyles and Lightbourne, the focus is the possible effect on the jury of the previously unknown exculpatory evidence. The United States Supreme Court explained in Kyles:  ` `  Justice Scalia suggests that we should "gauge" Burns's credibility by observing that the state judge presiding over Kyles's postconviction proceeding did not find Burns's testimony in that proceeding to be convincing, and by noting that Burns has since been convicted for killing Beanie. Of course, neither observation could possibly have affected the jury's appraisal of Burns's credibility at the time of Kyles's trials.  ` `  115 S. Ct. at 1573 n. 19 (citation omitted)(emphasis added). Here then the issue is not whether Judge Hutcheson found Mr. Lestz credible, but whether confidence is undermined in the'0*(( outcome of the trial where the jury did not hear the evidence which would have answered the trial prosecutors otherwise rhetorical question which was offered to dispose of Mr. Swaffords claim that there were two different guns at the Shingle Shack. Confidence must be undermined in the outcome when the proper cumulative analysis is employed, and Mr. Swafford continues to rely upon the cumulative analysis which is set forth in the Initial Brief as the proper analysis.  ? $ ARGUMENT III ă Contrary to the States argument, Mr. Swafford offered the Overton Commission Report and the Shevin Report under section 90.203. The circuit court gave the State ample time in circuit court to consider the reports and make any objection that it wished. The State objected on only three grounds: relevancy, hearsay, and authentication. The circuit court sustained the objection on the authentication grounds. When collateral counsel sought to explain that the judicial notice provisions precluded such a ruling, counsel was cut off and precluded from making a record. The States argument in its Answer Brief regarding authentication is simply not applicable under the judicial notice provisions. The State cites no authority for its position. Certainly, the statute does not provide a basis for objecting on authentication grounds. The States claim that there is no evidence that the Overton Commission Report or the Shevin Report were official actions is'0*(( absurd. Surely, the fact that this Court ordered the reports prepared and submitted to the Court accounts for something. The State hearsay argument is equally silly. The conclusions and findings in those reports are no more hearsay than is the opinion of any court making legal and factual determinations. Finally, the States most vociferously pressed argument below (relevancy) seems now to have been abandoned in favor of exactly the opposite argument (cumulative). However, that argument makes no sense either since the circuit court did not find diligence. Evidence can only be cumulative where it is being sought to be introduced to establish a point already proven.  ?P X% ARGUMENT IV ă As already explained, Lightbourne v. State is virtually on point and establishes that Mr. Swaffords collateral counsel did exercise due diligence in their efforts to locate Mr. Lestz. The State also argues that trial counsel did not exercise due diligence when he accepted the trial prosecutors representation that all exculpatory evidence had been disclosed. This argument was squarely rejected by the United States Supreme Court in Strickler. The prosecutor cannot transfer his obligation to make a search for and disclose exculpatory evidence to defense counsel by representing that he has fulfilled his obligation and offering defense counsel an opportunity to double check. If defense counsel cannot rely upon the prosecutor to'0*(( have fulfilled his obligation, then there is no real prosecutorial obligation. Further, the State never proved that the Walsh, Lestz and Levi materials were in the trial prosecutors possession or in the boxes that he offered to give trial counsel access to. The State did not call the trial prosecutor as a witness at the evidentiary hearing below. Moreover, the 119 materials disclosed in this Court did not show that the State Attorneys Office possessed the Walsh, Lestz or Levi materials. Finally, if trial counsel did not exercise due diligence in taking the prosecutor up on the offer to let him double check the prosecutors determination that there was no exculpatory evidence in the boxes in the prosecutors office, then his performance was unreasonable and thus deficient. This Court has already so held. jState v. Gunsby, 670 So. 2d 920 (Fla. 19State v. Gunsby, 670 So. 2d 920 (Fla. 1996)jState v. Gunsby, 670 So. 2d 920 (Fla. 1996). Accordingly, relief is still warranted because cumulative consideration of all the undiscovered or undisclosed evidence must undermine confidence in the outcome of the trial where the jury did not hear the wealth of exculpatory evidence which has been uncovered in postconviction proceedings.  ?@ % CONCLUSION ă For the reasons stated herein and in the Initial Brief, Mr. Swafford in entitled to a new trial. Exculpatory evidence implicating Micheal Walsh as the person who killed Brenda Rucker was not disclosed by the State. The evidence implicating Walsh in the murder would certainly have been sufficient to support a' 0*(( conviction of Walsh the crime. Its nondisclosure clearly undermines confidence in the guilty verdict returned against Mr. Swafford. I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on July 21, 1999.    ` `  hh#(yhddd!y   ` `  hh#(MARTIN J. MCCLAIN ` `  hh#(Special Assistant CCRCSouth ` `  hh#(Florida Bar No. 0754773 ` `  hh#(9701 Shore Rd. Apt 1D ` `  hh#(Brooklyn, NY 11209 ` `  hh#((718) 7482332 ` `  hh#(OFFICE OF THE CAPITAL ` `  hh#( COLLATERAL REGIONAL ` `  hh#( COUNSELSOUTH ` `  hh#(1444 Biscayne Blvd. ` `  hh#(Miami, FL 33132 ` `  hh#((305) 3777580 ` `  hh#(COUNSEL FOR APPELLANT Copies furnished to: Judy Taylor Rush Assistant Attorney General Department of Legal Affairs 444 Seabreeze Boulevard, Suite 500 Daytona Beach, Florida 32114