IN THE SUPREME COURT OF FLORIDA

CASE NO. 92,173

ROY CLIFTON SWAFFORD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE SEVENTH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

MARTIN J. MCCLAIN

Litigation Director

Florida Bar No. 0754773

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL

COUNSEL-SOUTH

1444 Biscayne Blvd.

Miami, FL 33132

(305) 377-7580

COUNSEL FOR APPELLANT

i

This proceeding involves the appeal of the circuit court's

denial of Mr. Swafford's motion for post-conviction 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;

"PC-R1. ___" - Record on appeal from denial of the first

Motion to Vacate Judgment and Sentence.

"PC-R2. ___" - Record on appeal from denial of the second

Motion to Vacate Judgment and Sentence.

"PC-R3. ___" - Record on appeal from denial of the third

Motion to Vacate Judgment and Sentence.

"PC-R4. ___" - Pending record on appeal from denial of

relief after evidentiary hearing.

"PC-R4T. ___" - Transcript of evidentiary hearing conducted

February 6-7, 1997.

All other citations will be self-explanatory or will

otherwise be explained.

ii

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.

This brief is typed in Courier 12 point not proportionately

spaced.

iii

Page

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . ii

CERTIFICATE OF FONT . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 39

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. . . . . . . . . . . . . . . . . . . . . 40

B. 1990 DISCLOSURES AND NON-DISCLOSURES. . . . . . . . 42

C. THE STATE'S CONTINUING OBLIGATION. . . . . . . . . 44

D. MERITS REVIEW IS REQUIRED. . . . . . . . . . . . . 46

E. CONCLUSION. . . . . . . . . . . . . . . . . . . . . 48

ARGUMENT II

MR. 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

DISCOVER AND PRESENT EXCULPATORY EVIDENCE.

A. INTRODUCTION. . . . . . . . . . . . . . . . . . . . 49

iv

B. CUMULATIVE ANALYSIS REQUIRED. . . . . . . . . . . . 51

C. LOWER COURT'S ANALYSIS VIOLATED KYLES. . . . . . . 53

D. CONFIDENCE IS UNDERMINED IN THE OUTCOME. . . . . . 61

1. Walsh, Lestz, and Levi. . . . . . . . . . . . 61

2. Discredited police methods. . . . . . . . . . 66

3. Roger Harper. . . . . . . . . . . . . . . . . 67

4. Other undisclosed evidence. . . . . . . . . . 71

5. Conclusion. . . . . . . . . . . . . . . . . . 72

ARGUMENT III

THE 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. . . . . . . . . . . . . . . . . . . . 72

ARGUMENT IV

THE 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. . . . . . . . . . . . . . . . 76

A. DUE DILIGENCE. . . . . . . . . . . . . . . . . . . 78

B. THE CIRCUIT COURT'S ANALYSIS. . . . . . . . . . . 80

C. THE PROPER ANALYSIS. . . . . . . . . . . 83

D. COUNSEL CONDUCTED A DULY DILIGENT SEARCH. . . . . . 92

E. CONCLUSION. . . . . . . . . . . . . . . . . . . . . 98

ARGUMENT V

MR. 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. . . . . . . . . 99

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 100

v

Page

Bowen v. Maynard,

799 F.2d 593, 613 (10th Cir. 1986) . . . . . . . . . 45, 59

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . 44, 49

Chapman v. California,

386 U.S. 18 (1967) . . . . . . . . . . . . . . . . . . . 58

Downs v. State,

453 So.2d 1102 (Fla. 1984) . . . . . . . . . . . . . . . 98

Fahy v. Connecticut,

375 U.S. 85, 86-7 (1963) . . . . . . . . . . . . . . . . 58

Gardner v. Johnson,

451 So.2d 477, 478 (Fla.1984) . . . . . . . . . . . . . 80

Hardwick v. Dugger,

648 So.2d 100 (Fla. 1995) . . . . . . . . . . . . . . . 98

Herrera v. Collins,

506 U.S. 390, 445 (1993),

(Blackmun, J., dissenting) . . . . . . . . . . . . 76

Hoffman v. Haddock,

695 So.2d 682, 685 (Fla. 1997),

(Wells, J., dissenting) . . . . . . . . . . . . . . 98

In re Winship,

397 U.S. 358, 372 (1970),

(Harlan, J., concurring) . . . . . . . . . . . . . 76

Jean v. Rice,

945 F.2d 82 (4th Cir. 1991) . . . . . . . . . . . . . . 57

Johnson v. Butterworth,

23 Fla. L. Weekly at S385, S386 (Fla. 1998) . . . . . . 44

Kyles v. Whitley,

115 S. Ct. 1555 (1995) . . . . . . . . . . . 46, 51, 52, 58

Lindsey v. King,

769 F.2d 1034, 1042 (CA5 1985) . . . . . . . . . . . 45, 59

Loren v. State,

vi

Ouimette v. Moran,

942 F.2d 1 (1st Cir. 1991) . . . . . . . . . . . . . . . 57

Roberts v. Butterworth,

668 So. 2d 580 (Fla. 1996) . . . . . . . . . . . . . . . 44

Roman v. State,

528 So. 2d 1169 (Fla. 1988) . . . . . . . . . . . . . . 72

Schlup v. Delo,

513 U.S. 298, 324 (1995) . . . . . . . . . . . . . . . . 76

Smith v. Wainwright,

799 F. 2d 1442 (11th Cir 1986) . . . . . . . 48, 49, 60, 61

Spalding v. Dugger,

526 So. 2d 71 (Fla. 1988) . . . . . . . . . . . . . . . 29

Squires v. State,

558 So.2d 401, 403 (Fla. 1990) . . . . . . . . . . . . . 98

State v. Christopher,

623 So. 2d 1228 (Fla. 3rd DCA 1993) . . . . . . . . . . 100

State v. Gunsby,

670 So. 2d 920 (Fla. 1996) . . . . . . . . . . . . . . . 46

State v. Parker,

23 Fla. L. Weekly S439 (Fla. 1998) . . . . . . . . . . . 46

Steinhorst v. State,

695 So.2d 1245, 1252 (Fla. 1997)

(Kogan, C.J, Anstead & Shaw, JJ., dissenting) . . . 93

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . 49, 78, 98

Swafford v. Dugger,

569 So. 2d 1264 (Fla. 1990) . . . . . . . . . . . . . . . 3

Swafford v. State,

533 So. 2d 270 (Fla. 1988) . . . . . . . . . . . . . . . 29

Swafford v. State,

569 So. 2d 1264 (Fla. 1990) . . . . . . . . . . . . . . 33

Swafford v. State,

636 So. 2d 1309 (Fla. 1994) . . . . . . . . . . . . . . 35

Swafford v. State,

679 So. 2d 736 (Fla. 1996) . . . . . . . . . . . . . . . 36

vii

United States v. Agurs,

478 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . 56

United States v. Arnold,

117 F.3d 1308 (11th Cir. 1997) . . . . . . . . . . . 57, 61

United States v. Bagley,

473 U.S. 667 (1985) . . . . . . . . . . . . . . . . 49, 56

United States v. Hosford,

782 F.2d 936 (11th Cir. 1986) . . . . . . . . . . . . . 100

Ventura v. State,

673 So. 2d 479 (Fla. 1996) . . . . . . . . . . . . . . . 42

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.

1

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

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

evidence never reached his jury because of either the State's

failure to disclose or defense counsel's failure to discover.

2

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." (PC-R3. 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

"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

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).

3

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. Swafford 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

revealed that at 6:00 a.m. on February 14, 1982, James Michael

Walsh left Mr. Lestz at a laundromat approximately one block away

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.

4

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. (PC-R4T. 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." (PC-R4T. 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

first revealed on February 7, 1997, the investigation ended then

because Captain Randall Burnsed "just didn't find [Mr. Lestz]

credible". (PC-R4T. 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.

5

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

Rucker was abducted from a Fina station in Ormond Beach, Florida.

(R. 728, 739-40, 1273). A composite drawing of the assailant who

abducted Ms. Rucker was subsequently prepared. (PC-R4T. 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. 768-69, 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. (PC-R4T. 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

6

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. (PC-R4T. 85).

Agent Baker reported that Mr. Walsh had pistol-whipped 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." (PC-R4T. 574).

On July 23, 1982, Volusia County personnel interviewed Mr.

Lestz and subsequently Mr. Walsh. (PC-R4T. 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

7

him not knowing where they went." (PC-R4T. 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.

(PC-R4T. 552-53).

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".

(PC-R4T. 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

8

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." (PC-R4T.

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. (PC-R4T. 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:

9

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" (PC-R3. 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" (PC-R3. 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" (PC-R3. 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." (PC-R3.

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" (PC-R3. 205-206).

10

No 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.

(PC-R4T. 549-50).

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.

550-51). So in January of 1983, Captain Burnsed along with

Deputy Buscher traveled at county expense to Marion, Illinois to

re-interview 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.

(PC-R4T. 538). In fact as Captain Burnsed has now testified, Mr.

Lestz' problems with the polygraph "indicate[d] to [Captain

11

Burnsed] that this meant that Mr. Walsh was more likely to be

involved in the homicide". (PC-R4T. 538).

During the January 25, 1982 interview, Mr. Lestz changed his

story. (PC-R4T. 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 US-1 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 (PC-R4T. 76-77). 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

12

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 the

from Roy Swafford. The results were all negative for Mr.

Swafford.

13

latent fingerprints that were obtained from the crime

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.

(PC-R4T. 557-59).

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.

(PC-R4T. 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

14

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 re-interviewing 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?

15

MR. 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.

(PC-R4T. 582-83).

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. (PC-R4T. 122-23, 127-28).

Ray Cass, Mr. Swafford's trial attorney, testified that he

did not have any of the police reports concerning James Walsh,

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.

16

Michael Lestz, and Walter Levi. (PC-R4T. 235-38). Mr. Cass

stated: "I don't think I have to go through the whole thing,

because I wasn't aware of Mr. Walsh." (PC-R4T. 236). Mr. Cass

indicated that the information in the reports was "[v]ery

significant." (PC-R4T. 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." (PC-R4T. 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.

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?

17

Five 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. 1440-43). Mr. Swafford was Mr. Harper's co-defendant 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

18

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

19

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 t-shirt (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. 1093-1094). 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.

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.

20

Griswold indicated came from the men's restroom at the Shingle

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 was

21

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. 835-36). 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. 835-36).

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.

22

Q 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 twenty-three. 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 twenty-four, 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.

23

Q 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.

(PC-R4T. 278-80).

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.

Office. (R. 820).

Harper filed on November 12, 1985 (the very day Mr. Swafford was

24

. . 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

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

would make Mr. White's letter "a part of Mr. Harper's file and

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).

25

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. (PC-R4T. 241-45). 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. (PC-R4T. 245-46).

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

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.

defender's office who assisted Mr. Cass during the discovery

phase of the proceedings against Mr. Swafford.

26

(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." (PC-R4T. 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

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

Harper, whose testimony was essentially bought, testified that

this particular weapon belonged to Roy Swafford.

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.

27

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

It was undisputed that Mr. Swafford was with a prostitute

until about 6:00 a.m. on February 14th. Thus, the State

contended that Mr. Swafford abducted Ms. Rucker, sexually

assaulted her twice, burned her with cigarettes, and killed her

28

in that one-hour 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 first-degree 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

and sentence on direct appeal. Swafford v. State, 533 So. 2d 270

(Fla. 1988).

29

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 post-conviction process. The Office of the Capital

Collateral Representative (CCR), the office responsible for

providing effective representation to Mr. Swafford in collateral

proceedings had 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. (PC-R1. 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." (PC-R4T. 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." (PC-R4T. 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

attorneys and myself, three years out of law school, and we were

going to do it." (PC-R4T. 340). Limitations arose from fiscal

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.

30

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." (PC-R4T. 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. (PC-R4T. 342-43). 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

did not have any additional opportunity to investigate the

materials that were disclosed to us". (PC-R4T. 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." (PC-R4T. 365).

Harun Shabazz was a second chair assigned to Mr. Swafford's

31

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. (PC-R4T. 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." (PC-R4T. 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."

(PC-R4T. 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. (PC-R4T. 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 so-and-so and they

would send us a bill a couple weeks later. If they didn't find

anyone, then they would just call us that they didn't find

anybody." (PC-R4T. 421).

22, 1990, this Response was not stamped "filed" until October 31,

1990.

32

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.

(PC-R4T. 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. (PC-R4T. 594).

Meanwhile on October 15, 1990, Mr. Swafford had initiated

post-conviction 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.

Therein the State asserted "James Michael Walsh, Walter Levi and

Michael Lestz were thoroughly investigated and discarded as

suspects." (State Response dated 10/22/90 at 17).

33

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

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

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

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 13-14). On October

30, 1990, the circuit court signed an order denying the motion to

vacate (PC-R1 436-51).

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

Oral argument was held on November 9, 1990. 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. Swafford

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).

While the appeal was pending in the Eleventh Circuit,

Mr. Swafford, through a newly assigned lead attorney, continued

34

to conduct further investigation into his case. (PC-R4T. 417-

22). This included additional efforts to locate Lestz, Levi and

Walsh. (PC-R4T. 418-20). Global continued to search pursuant to

the open and active inquiry. (PC-R4T. 594). Mr. Swafford's

reconstituted litigation team also sought additional ways to

track down Walsh, Lestz and Levi. (PC-R4T. 418-19). 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. (PC-R4T. 451-52). He took over the

duties that Mr. Shabazz had been performing up to that point.

PC-R4T. 422-23). 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. (PC-R4T. 452-55). In early 1993, Mr. Chavis

recontacted Global. (PC-R4T. 456). He double checked with them

making sure they had the correct names, dates of birth, and

social security numbers. (PC-R4T. 456-57). 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

provided because Mr. Chavis had no new information. (PC-R4T.

35

458). Shortly thereafter in April 1994, Global reported an

address for Michael Lestz. (PC-R4T. 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. Swafford 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." (PC-R4T. 80). Mr. Lestz instructed his family

members to not disclose his whereabouts if any one contacted them

looking for him. He made sure his driver's license showed the

36

wrong address. He avoided using his name on any business

transactions or records. (PC-R4T. 80, 94-95). However, in

December of 1993, Mr. Lestz had filed for "federal bankruptcy."

(PC-R4T. 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.

(PC-R4T. 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. Swafford v. State, 679 So. 2d

736 (Fla. 1996). The evidentiary hearing was held February 6-7,

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.

Subsequent to Mr. Swafford's trial, Mr. Tanner contacted Ray

Tanner as a witness. However, he testified that he had no memory

whatsoever about the matter. (PC-R4T. 518-21).

37

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

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." (PC-R4T. 485). Mr. Swafford argued that the report

contained factual information regarding the adequacy of CCR's

funding in 1990-91 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." (PC-R4T.

487). The State argued against the introduction of the report

saying "there is no right effective post-conviction or collateral

counsel." (PC-R4T. 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." (PC-R4T. 489).

38

Mr. 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." (PC-R4T. 489).

The State indicated it had "the same objection to that report as

we just had to the one --". (PC-R4T. 489). The circuit court

interjected saying: "Same result." (PC-R4T. 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." (PC-R4. 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.

39

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.

40

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:

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 anyway.

Contrary to the State's 1990 Response, the Volusia County

Sheriff's files were not provided to defense counsel, and the

State presented no evidence that they were.

It is also worth noting that the State conceded in 1990 that

the State Attorney's Office did not possess the Walsh materials

and accordingly did not disclose those materials pursuant to a

119 request to Mr. Swafford's collateral counsel.

41

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

reveal additional exculpatory evidence. Contrary to the 1990

representation by the State that Walsh, Levi, and Lestz were

"thoroughly investigated and discarded as suspects," the State

presented evidence in 1997 that the "further investigation"

police said was warranted on January 31, 1983, never occurred.

(Def. Exh. 5); however, when Captain Burnsed testified in 1997 he

indicated that the date of the interview was January 25th. (PCR4T.

572).

42

This fact is and was highly relevant and exculpatory evidence.

As a result, the State cannot rely upon this Court's decision in

1990 as erecting some kind of procedural bar precluding

consideration of the merits of Mr. Swafford's constitutional

claims when it did not reveal the highly relevant evidence until

February 7, 1997. In Ventura v. State, 673 So. 2d 479 (Fla.

1996), this Court held: "The State cannot fail to furnish

relevant information and then argue that the claim need not be

heard on its merits because of an asserted procedural default

that was caused by the State's failure to act."

In 1990, the Volusia County Sheriff's Office disclosed a

series of police reports which concerned the investigation of

James Walsh, Walter Levi and Michael Lestz in reference to the

Rucker homicide. The last of these reports in chronological

order was dated January 31, 1983, and concerned an interview of

follows:

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.

43

(Def. Exh. 5 at 4).

On October 22, 1990, the State stated in its Response:

"Furthermore, James Michael Walsh, Walter Levi, and Michael Lestz

were thoroughly investigated and discarded as suspects."

(Response dated 10/22/90 at 17). The obvious implication was

that the "[f]urther investigation" that was "to follow"

according to the January 31st report occurred and according to

the State eliminated Mr. Walsh as a suspect.

However, not until February 7, 1997, when the State called

Captain Burnsed to the witness stand did the State reveal that

the "[f]urther investigation" that was "to follow" never

occurred. 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?

MR. 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.

44

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.

(PC-R4T. 582-83).

The January 31, 1983, police report indicated that

"[f]urther investigation" was warranted. The fact that it never

occurred establishes that the State's representation that "James

Michael Walsh, Walter Levi, and Michael Lestz were thoroughly

investigated and discarded as suspects" was simply false.

This Court has held that the State's obligation under Brady

v. Maryland, 373 U.S. 83 (1963), continues throughout the

postconviction process. Roberts v. Butterworth, 668 So. 2d 580

(Fla. 1996). In Johnson v. Butterworth, 23 Fla. L. Weekly at

S385, S386 (Fla. 1998), this Court stated: "the State is under a

continuing obligation to disclose any exculpatory evidence."

45

Thus here, the State had an obligation to reveal that the

"[f]urther investigation" that law enforcement felt was warranted

never occurred. Disclosing such exculpatory evidence would also

have revealed that the argument made by the State that Mr. Walsh

had been eliminated after a "thorough investigat[ion]" was

misleading, if not false. The State's failure to disclose the

fact that the "[f]urther investigation" did not occur violated

due process and itself constitutes a Brady violation.

This undisclosed evidence discredits the police methods

employed in investigating the Rucker homicide. The United States

Supreme Court has recognized undisclosed evidence is exculpatory

where it creates a basis for:

attack[ing] the reliability of the investigation in

failing to even consider [another's] possible guilt and

in tolerating (if not countenancing) serious

possibilities evidence had been planted. See, e.g.,

Bowen v. Maynard, 799 F.2d 593, 613 (CA10 1986) ("A

common trial tactic of defense lawyers is to discredit

the caliber of the investigation or the decision to

charge the defendant, and we may consider such use in

assessing a possible Brady violation"); Lindsey v.

King, 769 F.2d 1034, 1042 (CA5 1985) (awarding new

trial of prisoner convicted in Lousisana state court

because withheld Brady evidence "carried within it the

potential. . .for the. . .discrediting. . .of the

police methods employed in assembling the case").

Kyles, 115 S.Ct. at 1572.

Disclosure of the State's failure to conduct the "[f]urther

investigation' that police believed was warranted did not occur

until February 7, 1997. This was exculpatory evidence which

"discredit[ed] . . . the police methods employed in assembling

the case." Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985).

The State cannot "fail to furnish relevant information and then

46

argue that the claim need not be heard on its merits". Ventura

v. State, 673 So. 2d at 480.

Since the State failed in its continuing obligation to

disclose exculpatory evidence in its possession, the merits of

this claim must be entertained now. State v. Parker, 23 Fla. L.

Weekly S439 (Fla. 1998). Since the State "fail[ed] to furnish

relevant information", the claim is now before this Court on the

merits. Ventura v. State, 673 So. 2d at 480.

This merits review requires cumulative consideration of all

previously pled claims that Mr. Swafford did not receive an

adequate adversarial testing because his jury did not hear

exculpatory evidence. State v. Gunsby, 670 So. 2d 920 (Fla.

1996). The 1997 disclosure by the State of previously

undisclosed Brady material must be evaluated cumulatively with

the previously pled claims. Kyles v. Whitley, 115 S.Ct. 1555

(1995). As explained in Kyles:

The question is not whether the defendant would more

likely than not have received a different verdict with

the evidence, but whether in its absence he received a

fair trial, understood as a trial resulting in a

verdict worthy of confidence.

Kyles, 115 S.Ct. at 1566.

The fourth and final aspect of Bagley materiality to be

stressed here is its definition in terms of suppressed

evidence considered collectively, not item-by-item.

* * *

While the definition of Bagley materiality in terms of

the cumulative effect of suppression must accordingly

be seen as leaving the government with a degree of

discretion, it must also be understood as imposing a

47

corresponding burden. On the one side, showing that

the prosecution knew of an item of favorable evidence

unknown to the defense does not amount to a Brady

violation, without more. But the prosecution, which

alone can know what is undisclosed, must be assigned

the consequent responsibility to gauge the likely net

effect of all such evidence and make disclosure when

the point of 'reasonable probability' is reached. This

in turn means that the individual prosecutor has a duty

to learn of any favorable evidence known to the others

acting on the government's behalf in the case,

including the police. But whether the prosecutor

succeeds or fails in meeting this obligation (whether,

that is, a failure to disclose is in good faith or bad

faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-

1197), the prosecution's responsibility for failing to

disclose known, favorable evidence rising to a material

level of importance is inescapable.

Kyles, 115 S.Ct. at 1567-68.

The Supreme Court made it clear in Kyles that due process

required the prosecutor to fulfill his obligation of knowing of

exculpatory evidence in the State's possession and disclosing to

defense counsel:

Unless, indeed, the adversary system of prosecution is

to descend to a gladiatorial level unmitigated by any

prosecutorial obligation for the sake of truth, the

government simply cannot avoid responsibility for

knowing when the suppression of evidence has come to

portend such an effect on a trial's outcome as to

destroy confidence in its result.

Kyles, 115 S.Ct. at 1568.

To the extent that the State argues that the prosecutor can

transfer his obligation "to learn of any favorable known to

others acting on the government's behalf" (Kyles at 1567) to the

defense attorney by saying in essence "I have determined that

these are all dead leads, but help yourself", this Court has

already ruled that the claim is at most merely converted to an

ineffective assistance of counsel claim. State v. Gunsby, 670

48

So. 2d at 921-22 ("To the extent, however, that Gunsby's counsel

failed to discover this evidence, we find that his performance

was deficient under the first prong of the test for ineffective

assistance of counsel as set forth in Strickland v. Washington");

Smith v. Wainwright, 799 F. 2d 1442 (11th Cir 1986). Though such

an argument (Mr. White transferred his obligation under Kyles to

Mr. Cass) does not appear to Mr. Swafford to be consistent with

Kyles, the argument is empty rhetoric ignoring the simple fact

that Mr. Swafford did not receive what due process as Kyles

explains guarantees: "a fair trial, understood as a trial

resulting in a verdict worthy of confidence." Kyles, 115 S.Ct.

at 1566. Under Gunsby and Kyles, the question is, regardless of

who failed to carry out their constitutional obligation (the

prosecutor or the defense counsel), is the verdict obtained in

the absence of the undisclosed (to the jury) exculpatory evidence

one "worthy of confidence." Kyles, 115 S.Ct. at 1566.

Because of the state's nondisclosure of highly relevant

information (its failure to conduct the "further investigation"

that the police in January of 1983 determined was warranted,

discredits the police methods in the case), this Court must now

conduct a merits review of the cumulative effects of Mr.

Swafford's claim that he did not receive a constitutionally

adequate adversarial testing because either the State failed to

disclose to defense counsel failed to discover and present to the

jury exculpatory evidence.

49

The Supreme Court has explained:

... a fair trial is one which evidence

subject to adversarial testing is presented

to an impartial tribunal for resolution of

issues defined in advance of the proceeding.

Strickland v. Washington, 466 U.S. 668, 685 (1984). In order to

insure that an adversarial testing, and hence a fair trial,

occur, certain obligations are imposed upon both the prosecutor

and defense counsel. The prosecutor is required to disclose to

the defense evidence "that is both favorable to the accused and

`material either to guilt or punishment'". United States v.

Bagley, 473 U.S. 667, 674 (1985), quoting Brady v. Maryland, 373

U.S. 83, 87 (1963). Defense counsel is obligated "to bring to

bear such skill and knowledge as will render the trial a reliable

adversarial testing process." Strickland, 466 U.S. at 685.

Where either or both fail in their obligations, a new trial is

required if confidence is undermined in the outcome. Smith v.

Wainwright, 799 F.2d 1442 (11th Cir. 1986).

Here, Mr. Swafford was denied a reliable adversarial

testing. The jury never heard the considerable and compelling

50

evidence that would have shown that Walsh committed the murder,

and that Mr. Swafford did not. Whether the prosecutor failed to

disclose this significant and material evidence or whether the

defense counsel failed to do his job, no one disputes the jury

did not hear the evidence in question. In order "to ensure that

a miscarriage of justice [did] not occur," Bagley, 473 U.S. at

675, it was essential for the jury to hear the evidence.

Confidence is undermined in the outcome since the jury did not

hear the evidence. Garcia v. State, 622 So. 2d at 1331.

Exculpatory and material evidence is evidence of a favorable

character for the defense which creates a reasonable probability

that the outcome of the guilt and/or capital sentencing trial

would have been different. Garcia v. State, 622 So. 2d at 1330-

31. This standard is met and reversal is required once the

reviewing court concludes that there exists a "reasonable

probability that had the [unpresented] evidence been disclosed to

the defense, the result of the proceeding would have been

different." Bagley, 473 U.S. at 680.

In Mr. Swafford's case, the undisclosed exculpatory evidence

was central to the theory of defense at the guilt phase.

Mr. Swafford's defense was that someone else did it. The

undisclosed evidence provided an indication who that person was.

It demonstrates that Mr. Walsh had the opportunity and

subsequently behaved in a fashion consistent with guilt. It

demonstrates that Mr. Walsh may have been the person to leave the

murder weapon in the Shingle Shack.

51

Confidence in the outcome of Mr. Swafford's trial is

undermined because the unpresented evidence was relevant and

material to Mr. Swafford's guilt of first degree murder and to

whether a death sentence was warranted. Here, exculpatory

evidence did not reach the jury. Moreover, the prosecution

interfered with defense counsel's ability to provide effective

representation and insure an adversarial testing. The

prosecution denied the defense the information necessary to alert

counsel to the avenues worthy of investigation and presentation

to the jury, and in fact, affirmatively misled defense counsel.

As a result, no constitutionally adequate adversarial testing

occurred. Confidence is undermined in the outcome. There is a

reasonable probability of a different outcome. Mr. Swafford was

convicted and sentenced without a constitutionally adequate

adversarial testing.

The United States Supreme Court recently recognized that,

though a Brady violation may be comprised of individual instances

of nondisclosure, proper constitutional analysis requires

consideration of the cumulative effect of the individual

nondisclosures. Kyles v. Whitley. The reason for this as

explained by the United States Supreme Court is in order to

insure that the criminal defendant receives "a fair trial,

understood as a trial resulting in a verdict worthy of

confidence." Kyles, 115 S. Ct. at 1566. Thus, the proper

analysis cannot be conducted when suppression of exculpatory

52

evidence continues or when, despite due diligence, the evidence

of the prejudicial effect of the nondisclosure does not surface

until later. The analysis must be conducted when all of the

exculpatory evidence which the jury did not know becomes known.

In Kyles v. Whitley, the Supreme Court explained the

appropriate standard of review of a Brady claim:

The fourth and final aspect of Bagley materiality to be

stressed here is its definition in terms of suppressed

evidence considered collectively, not item-by-item.

Kyles, 115 S.C.t at 1567.

The result reached by the Fifth Circuit majority is

compatible with a series of independent materiality

evaluations, rather that the cumulative evaluation

required by Bagley, as the ensuing discussions will

show.

Kyles, 115 S. Ct. at 1569.

In evaluating the weight of all these evidentiary

items, it bears mention that they would not have

functioned as mere isolated bits of good luck for

Kyles. Their combined force in attacking the process

by which the police gathered evidence and assembled the

case would have complemented, and have been

complemented by, the testimony actually offered by

Kyles's friends and family to show that Beanie had

framed Kyles. Exposure to Beanie's own words, even

through cross-examination of the police officer, would

have made the defense's case more plausible and reduced

its vulnerability to credibility attack. Johnny Burns,

for example, was subjected to sharp cross-examination

after testifying that he had seen Beanie change the

license plate on the LTD, that he walked in on Beanie

stooping near the stove in Kyles's kitchen, that he had

seen Beanie with handguns of various calibres,

including a .32, and that he was testifying for the

defense even though Beanie was his "best friend." On

each of these points, Burns's testimony would have been

consistent with the withheld evidence: that Beanie had

spoken of Burns to the police as his "partner," had

admitted to changing the LTD's license plate, had

attended Sunday dinner at Kyles's apartment, and had a

history of violent crime, rendering his use of guns

more likely. With this information, the defense could

53

have challenged the prosecution's good faith on at

least some of the points of cross-examination mentioned

and could have elicited police testimony to blunt the

effect of the attack on Burns.

Justice Scalia suggests that we should "gauge"

Burns's credibility by observing that the state judge

presiding over Kyles's post-conviction 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.

Kyles, 115 S. Ct. at 1573 n. 19 (citations omitted).

The circuit court purported to conduct a merits review

saying: "This Court finds that had the testimony of Mr. Lestz

been presented to the jury it would not have probably produced an

acquittal." (PC-R4. 287). The circuit court elaborated briefly

as follows:

Mr. Lestz, in the two (2) statements he gave to the

Sheriff's investigators, referred to in defendant's

exhibit 5 and 6 introduced into evidence at the

February, 1997, evidentiary hearing and the affidavit

produced by Mr. Lestz and his testimony that Mr. Lestz

gave at the evidentiary hearing in February, 1997,

contained many inconsistencies and this Court finds

that had the testimony been presented to the trial

jury, that it would not have probably resulted in an

acquittal given the strong case the state had against

Mr. Swafford.

(PC-R4. 287).

This analysis failed to apply the appropriate legal standard

to Mr. Swafford's claims. First, there is no cumulative

consideration of the rest of the exculpatory evidence that the

jury did not hear. This unconsidered exculpatory evidence

includes: Mr. Levi's testimony corroborating Mr. Lestz'

54

testimony that Mr. Walsh left with Mr. Lestz before 6:00 a.m. on

the morning of February 14, 1982; Mr. Levi's testimony that Mr.

Walsh was a drug addict who frequently left him and Mr. Lestz at

the laundromat a block a block from where Brenda Rucker worked

while Mr. Walsh went to purchase drugs; Mr. Walsh's suspicious

conduct when interviewed by the police and shown pictures of

Brenda Rucker; Mr. Walsh's refusal to reveal his whereabouts on

February 14th; the similarity between the burns inflicted upon

Mr. Lestz while Mr. Walsh sexually assaulted him and the burns

found on Brenda Rucker's body after she had been sexually

assaulted and then murdered; the statement by Mr. Walsh to Mr.

Lestz after Mr. Walsh had burned him with cigarettes that he was

going to shot him behind the ear and blow his brains out and the

fact that Ms. Rucker was killer by a shot behind her ear after

she had been sexually assaulted and burned with cigarettes;

Walsh's possession of BOLO for the Rucker homicide; the fact that

Walsh bore a strong resemblance to the composite sketch contained

in the BOLO; Mr. Walsh's admission that he was supporting himself

in February, 1983, through burglaries and robberies; Roger

Harper's letters to the prosecution demanding consideration for

his testimony, even threatening to risk contempt of court