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.

This brief is typed in Courier 12 point not proportionately

spaced.

ii

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

CERTIFICATE OF FONT . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv

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

REPLY TO STATEMENT OF THE CASE AND THE FACTS . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT I . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT II . . . . . . . . . . . . . . . . . . . . . . 18

ARGUMENT III . . . . . . . . . . . . . . . . . . . . . . 26

ARGUMENT IV . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 28

iii

Hoffman v. State,

613 So. 2d 405 (Fla. 1992) . . . . . . . . . . . . . . . 11

Jennings v. State,

473 So. 2d 204 (Fla. 1985) . . . . . . . . . . . . . . . 11

Jones (Leo) v. State,

701 So. 2d 76 (Fla. 1997) . . . . . . . . . . . . . . . 11

Jones (Ronnie) v. State,

___ So. 2d ___, Case No. 91,014

(Fla. June 17, 1999) . . . . . . . . . . . . . . . . . . 11

Jones v. State,

478 So. 2d 346 (Fla. 1985) . . . . . . . . . . . . . . . 11

Jones v. State,

709 So. 2d 512 (Fla. 1998) . . . . . . . . . . . . . 12, 19

Kyles v. Whitley,

115 S.Ct. 1555 (1995) . . . . . . . . . . . . . . . 13, 14

Lightbourne v. Dugger,

549 So. 2d 1364 (Fla. 1989) . . . . . . . . . . . . . . 20

Lightbourne v. State,

___ So. 2d ___, Case No. 89, 526

(Fla. July 8, 1999) . . . . . . . . . . . . . . . . . 1, 14

Mills v. State,

684 So. 2d 801 (Fla. 1996) . . . . . . . . . . . . . . . 19

State v. Gunsby,

670 So. 2d 920 (Fla. 1996) . . . . . . . . . . . . . . . 28

Strickler v. Greene,

119 S.Ct. ___, 65 Cr. L. Rptr. 363 (June 17, 1999) . . . . 1

Swafford v. State,

679 So. 2d 736 (Fla. 1996) . . . . . . . . . . . . . . . . 4

United States v. Arnold,

117 F. 3d 1308 (11th Cir 1997) . . . . . . . . . . . . . 12

Young v. State,

___ So. 2d ___, Case No. 90,207

(Fla. June 10, 1999) . . . . . . . . . . . . . . . . . 1, 14

1

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

convicted and sentenced to death. Since the filing of the

State’s Answer Brief on May 17, 1999, three binding decisions

have issued which are directly contrary to the State’s position

and mandate a new trial for Mr. Swafford. These three decisions

are: Strickler v. Greene, 119 S.Ct. ___, 65 Cr. L. Rptr. 363

(June 17, 1999); Young v. State, ___ So. 2d ___, Case No. 90,207

(Fla. June 10, 1999); Lightbourne v. State, ___ So. 2d ___, Case

No. 89, 526 (Fla. July 8, 1999).

The State begins its Answer Brief by making an argument that

the “Introduction” and “Statement of the Case” in the Initial

Brief should be stricken by this Court and disregarded. This

Court has denied the State’s separately filed motion to strike

after receipt of Mr. Swafford’s response to the motion to strike.

In its Statement of the Case and the Facts, the State

accuses Mr. Swafford of having displayed “his disdain for the

rules of this Honorable Court as shown by his untimely filing of

his Motion for Rehearing of the Order Denying his Rule 3.850

motion and his Notice of Appeal in this case.” Answer Brief at

1. This Court denied the State’s Motion to Dismiss, apparently

agreeing with Mr. Swafford’s position as set forth in his

response to the motion to dismiss that the Notice of Appeal was

timely filed. The State has overlooked the fact that this Court

its Answer Brief, Mr. Swafford has attached for completeness

purposes his Supplemental Brief filed in the Eleventh Circuit,

the State’s Motion to Dismiss Appeal, Mr. Swafford’s Response,

and the Eleventh Circuit’s Order Dismissing the Appeal. In the

Supplemental Brief, Mr. Swafford explained in considerable detail

the errors in the district court’s analysis.

2

has ruled adversely to the State on the issue of whether the

Notice of Appeal was timely filed.

In its Statement of the Case, the State spends two pages

discussing the federal district court order denying Mr.

Swafford’s federal habeas petition. The State also attaches that

order to its Answer Brief. Yet, the State fails to note that no

evidentiary hearing was held in federal district court. Thus,

the purported findings were in fact legal conclusions not factual

determinations.

The State does briefly acknowledge that Mr. Swafford

appealed the district court order to the Eleventh Circuit.

However, it neglects to observe that in April of 1999 the

Eleventh Circuit dismiss the appeal without prejudice on the

State’s motion that this Court (the Florida Supreme Court) should

resolve the pending appeal before the Eleventh Circuit addresses

the issues raised challenging the federal district court’s order

had challenged in the Eleventh Circuit appeal the federal

district’s court analysis, contending that it was wrong under

Kyles v. Whitley and other federal authority. The State chose to

seek a dismissal of that appeal without prejudice to Mr.

is without citation and specific reference) that Mr. Swafford had

improper argument in his Statement of the Case in his Initial

Brief. Yet, the quotations of the federal district court order

is an attempt to insert argument into the State’s Statement of

the Case.

3

Swafford’s right to challenge the federal district court’s order

at some point in time in the future. Mr. Swafford has and does

challenge the legal correctness of the specific passages of the

district court order quoted in the Answer Brief’s Statement of

the Case. See Attachment A. The federal district court’s order

was clearly wrong as explained in Mr. Swafford’s Supplemental

Brief, which is attached as Attachment A. It was improper for

the State to insert into its Statement of the Case excerpts of

the federal district court’s order as in essence argument without

revealing that the order specifically has not been affirmed on

appeal and that the State chose to delay Mr. Swafford’s challenge

to that order by successfully moving to dismiss the appeal

The federal district court order cited to and quoted by the

State is of no precedential value. It was not introduced into

evidence in circuit court in the proceedings below and at issue

in this appeal. The federal district court has been challenged

on appeal in the Eleventh Circuit Court of Appeals. And that

appeal has yet to be decided because the State has sought to

delay the resolution of Mr. Swafford’s challenge to the legal

correctness of the federal district court’s analysis. This Court

should give absolutely no deference to that order entered without

The answer brief shall be prepared in the

same manner as the initial brief; provided

that the statement of the case and of the

facts shall be omitted unless there are areas

of disagreement, which should be clearly

specified.

4

the benefit of an evidentiary hearing and entered before the

discovery of the evidence by Mr. Swafford’s collateral counsel

which this Court already has determined warranted an evidentiary

hearing. When this Court remanded this case for an evidentiary

hearing, the federal district court’s order was already in

existence, and this Court properly ignored it. The evidence

warranting a hearing had not been presented to the federal court

in the habeas petition because it was not known at the time of

the filing of the federal petition. Swafford v. State, 679 So.

2d 736 (Fla. 1996).

In its Statement of the case at page 7, the State repeats

its allegation that “Swafford filed an untimely motion for

rehearing” and that “Swafford filed an untimely Notice of

Appeal”. This Court’s denial of the State’s Motion To Dismiss

constituted a determination that this Court had jurisdiction and

that the Notice of Appeal was timely filed.

In its Statement of the Case, the State does not “clearly

specif[y]” the areas of disagreement with Mr. Swafford’s

Instead, the State provides a disjointed and confusing version of

at Mr. Swafford’s trial evidence was presented that the murder

weapon was found in a trash can at the Shingle Shack on the night

of February 14, 1982.

5

the facts which is an attempt to obscure the compelling facts

warranting a new trial for Mr. Swafford.

At page 15 of the Answer Brief is a discussion of Mr. Lestz’

testimony of Mr. Walsh’s efforts to sell guns on the night of the

Brenda Rucker homicide. “Later, ‘[t]hat evening he wanted me to

take him to some different bars and see if he could sell the

guns.’” Answer Brief at 15. The State then asserts: “Mr. Lestz

recalled the name of only one bar, ‘the Shark Lounge.’” The

State observes: “Defense counsel McClain then suggested ‘the

Shingle Shack,’ (T 65), and when the State’s objection was

sustained, counsel offered ‘an affidavit of Michael Eugene Lestz’

State notes, Mr. Lestz indicated that the affidavit did not

refresh his recollection. The State’s discussion completely

fails to address the State’s cross-examination of Mr. Lestz,

wherein the State was successful in refreshing Mr. Lestz’ memory.

(PC-R4T. 122-23, 127-28). Mr. Lestz did recall in crossexamination

by the State that on the night of after the Rucker

homicide Mr. Lestz had driven Mr. Walsh to various bars in the

Daytona Beach area, including the Shingle Shack. Mr. Walsh

wished to get rid of two .38's that he had in his possession.

One of the places Mr. Lestz took Mr. Walsh that evening was the

Shingle Shack:

6

Q And you don’t believe that you had been to

the Shingle Shack several times before,

correct?

A Oh, I have been there several times.

Q With Walsh?

A Yes.

Q With Walsh trying to get rid of the guns?

A I had not gone in the place with him on

that particular day and –

Q I’m sorry. You had not?

February, if this is what you’re asking.

Q Yes.

A But we had been in there several times

prior to that date and a few times after that

for other business.

Q So you had been at that bar on various

occasions?

A Yes.

Q And that bar was not the one that you were

A We had stopped by there. We had to stop

by there, you know. I believe so.

Q But not for the purpose of disposing of

the guns?

A I don’t know. That was during that time

period. But I did not go in the tavern with

him. I dropped him off in the van and he

went in and came back out and like I was

saying, I don’t know what went on in there.

(PC-R4T. 122-23). On redirect, Mr. Lestz testified:

Q Walsh had also traded in guns; had he not?

A Yes, he had.

7

effort to dispose of particular guns?

A Yes, I do.

Q And in cross-examination you were asked

about the Shingle Shack?

A Yes.

Q And my understanding is that – do you

recall going to the Shingle Shack at some

A Yes, I do.

Q Okay. With Walsh?

A Yes.

Q And you stayed in the van or did you go

inside?

A I stayed in the van, I think.

Q And do you recall was that – was that

during the evening hours?

A It was during the evening hours.

Q You also recall going to other bars?

A Yes, I do.

Q You mentioned the Shark?

A The Shark.

Q And did you yourself actually go inside

that bar?

A I was inside that one.

Q And did you yourself go inside other bars

that night?

A I think I went to one other one across the

street from there.

Q Okay. But in terms of the Shingle Shack

you stayed in the van?

1982. The reason for this delay in his testimony was the failure

of the State to advise Mr. Swafford’s trial counsel of Mr. Lestz

at the time of trial. To the extent, that he did not remember

the name Shingle Shack at the time of the direct examination, but

did remember when asked by the State in cross-examination is

hardly surprising. What is surprising is that the State does not

acknowledge in Answer Brief that by the end of his testimony, Mr.

Lestz did recall driving Mr. Walsh to the Shingle Shack on the

night after the Rucker homicide while Mr. Walsh was attempting to

dispose of two .38's.

8

A Yeah.

(PC-R4T. 127-28). At the Shingle Shack, Mr. Lestz remained in

At page 32 of the Answer Brief in its Statement of the Case,

the State discusses the testimony of State Attorney Investigator,

Deborah Champion. As to this testimony, the State simply tries

to spin the testimony beyond recognition. Ms. Champion did

discuss how easily she was able to obtain information when she

identified herself as a State Attorney Investigator. But, she

also testified that the information about Mr. Lestz would not

have been revealed to a defense attorney or his proxy. (PC-R4T.

592). This corroborated the testimony of Mr. Swafford’s

witnesses (collateral attorneys and their investigator) that the

information was not revealed to them because under federal law it

could not be disclosed to defense attorneys or those who worked

for them. (PC-R4T. 376). The State in its Answer Brief attempts

to rely upon Ms. Champion’s testimony that the person she spoke

to on the phone indicated that there was a process that was not

difficult for defense attorneys to obtain access to the

easily obtained the address and provided it to Mr. Swafford’s

collateral counsel at any time in 1990 through 1994 when the

State knew that Mr. Swafford was trying to locate Mr. Lestz.

Yet, the State did not help Mr. Swafford’s counsel in any fashion

even though the whole problem was created by the State’s failure

to disclose Mr. Lestz as a witness who possessed material

information. The State’s behavior during the collateral

proceedings in Mr. Swafford’s case and in making the arguments it

is now advancing is not consistent with language recently quoted

by the United States Supreme Court in Strickler v. Greene, 65

Crim. L. Rptr. at 368:

[W]e have said that the United States

Attorney is “the representative not of an

ordinary party to a controversy, but of a

sovereignty whose obligation to govern

impartially is as compelling as its

obligation to govern at all; and whose

interest, therefore, in a criminal

prosecution is not that it shall win a case,

but that justice shall be done.” Berger v.

United States, 295 U.S. 78, 88 (1935).

9

information. Answer Brief at 34 n.14. However, this testimony

was struck as hearsay. The State description of the hearsay

objection as “tardy” is similar to the State’s continual

reference to an “untimely” Notice of Appeal. The court spoke and

disagreed. The testimony was stricken by the circuit court. The

State has not cross-appealed. Thus, there was no admissible

evidence that a defense attorney could have obtained the address

the circuit court, Mr. Swafford had ample evidence to present in

rebuttal that this statement was not true. This evidence was not

presented because in fact the testimony was stricken.

The State also cites Ms. Champion’s testimony that she spoke

over the phone with someone from Global Tracing, who confirmed

that as early as 1990 Global was hired to try to find Mr. Lestz.

10

(PC-R4T. 594). However, the State fails to acknowledge that

Global was unable to locate Mr. Lestz until 1994, even though the

undisputed evidence was that Global did not get paid until it was

successful in locating the individual it was hired to find. (PCR4T.

421)(“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.”).

The State in its Answer Brief refuses to address the

arguments Mr. Swafford raised in the Initial Brief in the order

in which they were raised because according to the State most of

the issues raised by Mr. Swafford were not “authorized” by this

Court in its opinion remanding for an evidentiary hearing. The

State’s position in this regard can be characterized as simply

wrong. The State’s position is an effort to slice and dice Mr.

Swafford’s compelling claims of innocence into something that the

State’s representative hopes can be swept under the rug.

When this Court issued its opinion remanding this case for

evidentiary hearing it obviously did not address matters that had

not yet arisen. In essence, the State’s position is errors that

occur during proceedings that are a result of remand by this

Court cannot be presented to this Court once the remand is over,

even if the errors are constitutional in nature or go to the

fairness of the process. Apparently, this is a proposed new rule

of law as is obvious from the State’s failure to cite a case in

reality goes to Argument II of the Initial Brief after the State

has attempted to shear it of any Brady component. As explained

infra, the State’s action is in contravention of this Court

recent ruling in Lightbourne v. State and the cases relied upon

therein.

11

support of its argument. The absurdity of the rule is inherent

on its face. The absence of a case support is quite telling.

Moreover, there are many cases wherein this Court has remanded

for an evidentiary, resentencing or retrial and on a subsequent

appeal considered matters that arose during the subsequent

proceedings which had not been addresses in the original opinion

remanding. See Jones (Ronnie) v. State, ___ So. 2d ___, Case No.

91,014 (Fla. June 17, 1999)(reversing for error occurring during

remand which had not been addressed in this Court’s prior order

remanding Jones v. State, 478 So. 2d 346 (Fla. 1985)); Jones

(Leo) v. State, 701 So. 2d 76 (Fla. 1997)(this Court addressed

and decided procedural issues which arose during proceedings

ordered by this Court in a prior opinion); Hoffman v. State, 613

So. 2d 405 (Fla. 1992)(while reversing proceedings from earlier

remand for failure to comply with prior order, this Court

addressed matters which arose on remand outside scope of prior

opinion); Jennings v. State, 473 So. 2d 204 (Fla. 1985)(a second

retrial ordered on grounds not addressed in first opinion

ordering retrial).

Accordingly, Mr. Swafford will address the argument in the

this Court noted that new evidence of a Brady claim surfaced at

the evidentiary hearing in circuit court. Even though the

circuit court did not address the new evidence in its order

denying relief, this Court considered the Brady claim on the

merits in the appeal. The situation here is virtually identical;

merits consideration of this claim is required.

12

Mr. Swafford presented in his Initial Brief his claim that

the State violated its obligation under Brady when it represented

to collateral and the courts in 1990 that “James Michael Walsh,

Walter Levi, and Michael Lestz were thoroughly investigated and

Response with this representation was filed, the State disclosed

in excess of one thousand additional pages of 119 records on

October 24, 1990. (PC-R1. 455). Included in the 119 records was

the January 31, 1983 report concerning an interview of Mr. Lestz

conducted January 26, 1983. This report was the last report in

sequence concerning Walsh, Lestz or Levi that was disclosed. It

ended with the notation “Further investigation is to follow.”

(Def. Exh. 5 at 4). At no time prior to February 7, 1997, did

the State reveal that in fact this “[f]urther investigation” did

not occur.

The State argues in its answer Brief that the proper test is

the four prong test in United States v. Arnold, 117 F. 3d 1308

most recently ruled and stated:

Thus the term “Brady violation” is sometimes

used to refer to any breach of the broad

obligation to disclose exculpatory

called “Brady material”–although, strictly

speaking, there is never a real “Brady

violation” unless the nondisclosure was so

serious that there is a reasonable

probability that the suppress evidence would

have produced a different verdict. There are

three components of a true Brady violation:

The evidence at issue must be favorable to

the accused, either because it is

exculpatory, or because it is impeaching;

that evidence must have been suppressed by

the State, either willfully or inadvertently;

and prejudice must have ensued.

Strickler v. Greene, 65 Crim. L. Rptr. at 368-69. Clearly, the

United States Supreme Court’s enunciation of the proper test is

controlling.

The State asserts Swafford has not alleged, nor shown, that

the failure to interview Mr. Levi for a third time constitutes

‘evidence’ within the meaning of Brady.” Answer Brief at 61.

First, the State mischaracterizes the nondisclosure as being

simply a failure to disclose that Levi was not interviewed a

third time. In fact, the nondisclosure was the failure to

disclose that the “[f]ollow up investigation” which was “to

follow” did not occur. This constituted impeachment of the

police investigation and of the representation in court that

Walsh, Levi and Lestz were thoroughly investigated and discarded

as suspects.

The State in its argument neglects to discuss the passage

from Kyles v. Whitley, 115 S.Ct. 1555, 1572 (1995), quoted in the

Initial Brief at page 45. In Kyles, the United States Supreme

Court specifically indicated that information impeaching “the

115 S.Ct. 1555 (1995) claim piggybacked onto the utterly

deficient Brady claim is likewise devoid of merit.” Answer Brief

at 62. It is hard to know what the State is talking about since

as the United States Supreme Court has recognized Kyles was

dictated by Brady; thus a Kyles claim is a Brady claim. See

Young v. State, ___ So.2d ___, Case No. 90,207, Slip Op. at 8 n.9

(Fla. June 10, 1999). If the State is trying to say that the

argument that there must be cumulative consideration is a

separate claim, the State is simply wrong. Young v. State.

Likewise, if the State is trying to say a claim that the State

failed to turn over impeachment of the reliability of its

investigation is somehow a different claim not to be evaluated

cumulatively with the other nondisclosures, the State is wrong.

See Lightbourne v. State, ___ So. 2d ___, Case No. 89,526 (Fla.

July 8, 1999).

14

reliability of the investigation” was evidence favorable to the

Further, the evidence would have significantly helped Mr.

Swafford in 1990. Mr. Swafford was led to believe in 1990 that

he had received everything, just as Mr. Strickler’s counsel was

led to believe in Strickler v. Greene. According to the United

States Supreme Court,

If it was reasonable for trial counsel to

rely on, not just upon the presumption that

the prosecutor would fully perform his duty

to disclose all exculpatory materials, but

also the implicit representation that such

materials would be included in the open files

tendered to defense counsel for their

examination, we think such reliance by

counsel appointed to represent petitioner in

state habeas proceedings was equally

reliable.

65 Crim. L. Rptr. at 369. Had collateral counsel known that a

thorough investigation had not occurred, he would have presented

that fact to this Court. This Court would have then known that

in fact Walsh, Lestz and Levi were not dead leads, and the result

diligence in its argument on the purported “authorized” issue.

There, it contended that trial counsel was not diligent when he

accepted the prosecutor’s assertion that the boxes in the

prosecutor’s possession contained no exculpatory evidence. Of

course if trial counsel breached his obligations to Mr. Swafford

by accepting the trial prosecutor’s representations and was thus

not diligent, then Mr. Swafford did not receive effective

representation. Gunsby.

15

would have been different. An evidentiary hearing would have

been ordered.

As to the second element identified in Strickler, the United

States Supreme Court found the element in Strickler satisfied

because “there is no dispute about the fact that [at least five

documents] were known to the State but not disclosed to trial

counsel.” 65 Crim. L. Rptr. at 369. Here, there is no dispute

that trial counsel did not know about Walsh, Lestz and Levi and

that collateral counsel did not know that the further

investigation that was to follow never occurred.

The State in is Answer Brief in its haste to avoid

discussing Brady and/or Kyles never actually argues that the

trial prosecutor’s pretrial discussion with Mr. Swafford’s trial

counsel, Ray Cass about other suspects who had been ruled out

Strickler specifically establishes that: “In order to comply with

Brady, therefore, ‘the individual prosecutor has a duty to learn

of any favorable evidence known to the others acting on the

government’s behalf in this case, including the police.’ Kyles,

514 U.S. at 437.” Strickler, 65 Crim. L. Rptr. at 368. Here,

trial prosecutor. Only Ray Cass testified about the conversation

with the trial prosecutor. No evidence was presented by the

State that the files that the trial prosecutor pointed to

included the police reports concerning Walsh, Lestz and Levi. No

evidence was presented that the trial prosecutor even knew of

them. In fact as noted in the Initial Brief, the State

Attorney’s Office has never disclosed 119 materials which

included any of the reports on Walsh, Lestz and Levi. See

Initial Brief at footnote 6. Thus, the record contains no

evidence that even if Mr. Cass had looked in the files in the

trial prosecutor’s possession, he would have found anything

regarding Walsh, Lestz or Levi. See Strickler.

But again, in responding to the Brady arguments, the State

does not assert that the trial prosecutor’s representation that

there was no exculpatory evidence combined with his offer of some

boxes containing unknown information somehow transferred the

Brady obligation to the defense attorney. Moreover, Strickler

precludes such an argument.

evidence would have probably produced an acquittal, i.e. a “more

likely than not” test which is not the proper standard. See

Young, Slip Op. at 9, quoting Kyles. The circuit court did not

conduct a Brady prejudice analysis.

point somehow relieves it of its obligation to conduct an

16

the trial prosecutor did not perform his duty to learn and

disclose the Brady material. He in fact affirmatively

represented that he had performed his duty and that there was no

As to the third component, the cumulative consideration was

to address the matter except for the following cursory analysis:

“Further, even had all of the allegedly exculpatory evidence and

information been heard, it would have made no difference in the

outcome of the trial. The evidence of Swafford’s guilt was, and

analysis. Perhaps, the exclamation point is supposed to signal

the Court just to trust the State, even though the State in this

case has a history of failing to comply with due process. The

gigantic Brady violation presented by Mr. Swafford to this Court

should not be ignored on the basis of an exclamation point.

statement of the case that “[r]eferences to the appropriate pages

of the record or transcript shall be made.” Apparently, the

State believes that rule can be defeated simply by inserting a

rendition of the trial evidence in the argument and not including

it in the statement of the case.

17

pages 55-56 contains a discussion of a little over page in length

which purports to be a summary of the trial evidence; but, it

unverifiable rendition of the evidence at trial, the State is

ignoring Kyles, as quoted by this Court in Young:

The second aspect of Bagley materiality

bearing emphasis here is that it is not a

sufficiency of evidence test. A defendant

need not demonstrate that after discounting

the inculpatory evidence in light of the

undisclosed evidence, there would not have

been enough left to convict. The possibility

of an acquittal on a criminal charge does not

imply insufficient evidentiary basis to

convict. One does not show a Brady violation

by demonstrating that some of the inculpatory

evidence should have been excluded, but by

showing that the favorable evidence could

reasonably be taken to put the whole case in

such a different light as to undermine

confidence in the verdict.

Young, Slip Op. at 9, quoting Kyles. Thus, the proper analysis

requires that the discussion focus on the undisclosed and

unpresented exculpatory evidence.

Since the State never addresses the proper cumulative

analysis required in Kyles which was set forth in the Initial

Argument I was based upon the newly disclosed Brady violation.

This Brady violation was disclosed on February 7, 1997, when the

State called Captain Burnsed to testify and he revealed that the

further investigation which was to follow as noted in a January

31, 1983 report never occurred. Mr. Swafford presented that as

Argument I because it establishes a new Brady violation which

must be factored in to the cumulative analysis conducted in

Argument II. As explained in Strickler, the phrase “Brady

violation” is used to refer to any breach of the broad obligation

to disclose exculpatory evidence, even though there is never a

real “Brady violation” unless the prejudice prong is met when

cumulative consideration is given to all of the material not

disclosed because of the breach or breaches of the broad

obligation to disclose.

18

Brief, Mr. Swafford continues to rely upon that which was set

forth therein. Under the proper analysis which was set forth in

Argument II of the Initial Brief (pages 61-72), confidence must

be undermined in the reliability of the outcome. Thus, a new

trial is warranted.

As set forth in Mr. Swafford’s Initial Brief, Argument II is

Mr. Swafford’s challenge to the analysis actually conducted by

Swafford’s argument of any Brady component by arguing that such a

claim is procedural barred by this Court’s prior opinions finding

confidence not undermined in the reliability of the outcome.

Once the State has shorn Argument II of its Brady component, it

treats what is left (of course an entirely different argument) in

what it calls the “authorized issue.” See Summary of the

Argument in the Answer Brief at 36, and Argument at 39-59.

that this Court in Gunsby fashioned a rule that would apply only

to Mr. Gunsby and that no one else could benefit from its

application would constitute an arbitrary and capricious

application of law which would itself violate both the Eighth and

Fourteenth Amendments.

19

However, the State’s argument that the Brady component must

be procedurally barred and not considered is wrong according to

this Court’s most recent pronouncement in this area. Lightbourne

v. State. The State in the “authorized” argument section of its

Answer Brief justifies the shearing off of the Brady component of

Mr. Swafford’s claim in the following fashion:

The State asserts that Swafford’s attempt to

prop up his fatally tardy presentation of

was expressly limited to the “unique

circumstances of this case,” 670 So. 2d at

924, and there are no comparable

circumstances present in Swafford’s case.

Answer Brief at 48 n.19.

This Court never indicated in Mills v. State, 684 So. 2d 801

(Fla. 1996), that it was overturning Gunsby. Moreover, this

Court in Jones v. State, 709 So. 2d 512 (Fla. 1998), and

reaffirmed in Lightbourne, made it clear that the cumulative

analysis discussed in Gunsby is in fact the legally required

analysis where a Brady claim and a newly discovered evidence

Gunsby away must fail. Even under the State’s logic (the last

pronouncement of this Court controls), the State’s position

cite Mills since the State apparently believes that Mills and

Gunsby are in conflict.

cumulative analysis required under Young and Lightbourne did not

occur. In its Argument V section, the State asserted: “Moreover,

as the State asserted below, the whole issue of Mr. Harper was

outside the scope of the remand. (SR 15). The evidentiary

hearing was limited to the allegedly new Lestz statement; it had

nothing to do with witness Harper.” Answer Brief at 73. Of

course witness Harper was a big component of Mr. Swafford’s Brady

claim as explained in the Initial Brief. Thus, cumulatively

consideration of the Brady violations and the newly discovered

evidence did not occur according to the State.

20

fails. The most recent pronouncement is now Lightbourne v.

This Court in Lightbourne held that a cumulative analysis of

Mr. Lightbourne’s Brady claim and his newly discovered evidence

Mr. Lightbourne had first presented a Brady claim years before.

See Lightbourne v. Dugger, 549 So. 2d 1364, 1367 (Fla. 1989). In

fact in Lightbourne, the Brady claim presented in 1989 was “based

on the State’s failure to disclose that police had engaged in a

scheme with Chavers and Carson to elicit incriminating statements

from Lightbourne.” Slip Op at 8. The Brady claim presented in

1994 was supported by evidence not previously available (“the

State committed a Brady violation in withholding evidence that

Chavers’ and Carson’s testimony was false and elicited in

violation of Henry”. Slip Op. at 19). This Court’s decision in

Lightbourne is certainly a repudiation of the State’s argument

here.

Lightbourne and its application to the facts presented herein.

should have contacted the police officers to determine whether

the prosecution’s representation in court were not true and that

collateral counsel’s failure to learn of the inaccuracy was not

due diligence. Answer Brief at 62. If collateral counsel has an

obligation to assume that the State has not complied with its

ongoing obligation to disclose exculpatory evidence, then there

is no continuing obligation because it is unenforceable. To rely

upon the prosecutor’s obligation is in essence a trap for the

unwary.

Moreover, collateral counsel who have refused to trust the

21

Mr. Swafford presented a Brady claim in 1990. He

subsequently located witnesses identified in the undisclosed

exculpatory evidence which established prejudice from the Brady

violation–-a prerequisite for relief. This is nearly identical

to the situation in Lightbourne. In Lightbourne, this Court

required merits consideration of the Brady claim based upon this

However here in Mr. Swafford’s case, there is an additional

component: newly disclosed evidence that the State breached its

ongoing obligation to disclose exculpatory evidence. See

Argument I. The State did not disclose until February 7, 1997

that the “further investigation” that was to follow into Walsh,

Lestz and Levi did not occur. This definitely impeached the

State’s representations to collateral counsel and this Court in

1990 that those three had been thoroughly investigated and

discarded as suspects. See Argument I. This could not have been

discovered any sooner because the State despite its obligation to

prosecutor to honor this obligation have endured the allegation

that they are engaging in a fishing expedition.

In this case, collateral counsel had no reason to believe

that the police would disclose such startling impeachment of

their own investigation. They instead were focused upon trying

to locate the witnesses who had not been disclosed at trial:

Lestz and Levi. Further, there is no evidence that Captain

Burnsed would have talked to Mr. Swafford’s collateral counsel,

let alone reveal that he did not conduct the follow up

investigation.

any part of the Brady, ineffective assistance or newly discovered

evidence claims requires merit consideration, then pursuant to

the cumulative analysis requirement cumulative consideration must

be given to even those portions previously presented and rejected

because prejudice had been insufficiently established.

22

a cumulative analysis of the prejudice component was required.

This analysis was not conducted by the circuit court. The State

does not even argue that the circuit court conducted a Kyles

cumulative analysis. Error occurred.

As for the State’s argument that collateral counsel did not

employ due diligence in their search for Lestz and Levi. Again,

Lightbourne has decided the issue adversely to the State. First,

the previously undisclosed Brady violation as discussed in

Argument I must be before the Court on the merits, and the

required cumulative consideration defeats any procedural bar

argument. This is inherently reasonable since it is the State’s

tardy disclosure in 1997 that has created the delay in getting

the issue before this Court.

Second, this Court in Lightbourne made clear that due

diligence does not require perfection nor 20/20 foresight. When

no relevant or exculpatory evidence; yet, collateral counsel

should have moved heaven and earth to find him. The

reasonableness of the search must include an evaluation of the

value of the expected testimony. Here, Mr. Lestz was not called

at trial by the State (as opposed to Carsons in Lightbourne).

The State specifically represented to collateral counsel and to

this Court that Mr. Lestz was a dead lead and possessed no

relevant or exculpatory evidence. The truly amazing thing in

this case is that collateral counsel nonetheless tried to find

Mr. Lestz. Global Tracing was hired and was repeatedly contacted

until an address turned up. Mr. Swafford’s collateral counsel

did exercise due diligence; and thank God they did. Otherwise,

the compelling evidence of innocence would never have been

located.

23

a witness’ name has been disclosed as a person who may possess

evidence which could lead to or support a post-conviction claim,

all this Court requires is evidence that collateral counsel “had

been actively looking for [the witness].” Slip Op. at 18. Here,

the State’s own evidence in circuit court was that in 1990 CCR

began looking for Mr. Lestz by hiring Global Tracing. This was

due diligence, particular in a case where the State was adamantly

maintaining that the witness was dead lead who possess no

Finally, the State in addressing its “authorized” issue

discusses Mr. Lestz’ testimony in the following fashion:

As pointed out earlier, this Court specified

that the remand was based on the allegation

in the CCR-prepared affidavit that Walsh had

at the Shingle Shack a .38 caliber hand gun

“at or near the time that the murder weapon

was discovered in the locale.” 679 So. 2d at

736. However, Mr. Lestz’s testimony at the

Lestz did not testify to most of the things

set out in the CCR-prepared affidavit which

was the basis for the hearing.

24

Answer Brief at 53. The State completely overlooks the testimony

that the State elicited from Mr. Lestz in its cross-examination:

“I did not go in the [Shingle Shack] with him. I dropped him off

in the van and he went in and came back out and like I was

saying, I don’t know what went on in there.” (PC-R4T. 123).

Thus, Mr. Lestz did testify that he drove Walsh to the Shingle

Shack on the evening of February 14, 1982, while Walsh was

attempting to unload two .38's (“that was during that time

period”). (PC-R4T. 123).

The State also overlooks the significance of this testimony

in relation to Mr. Swafford’s trial. In his closing argument,

the trial prosecutor recognized that there was a problem with the

testimony from Mr. Griswold (the bouncer from the Shingle Shack

who recovered the murder weapon from the trash can in the men’s

room) and Ms. Sarniak (the waitress from the Shingle Shack who

identified Mr. Swafford and recalled standing watch at the

women’s room door while Mr. Swafford placed a gun in the women’s

room trash can). So the trial prosecutor argued: "What is

important on the Shingle Shack episode where the gun was

recovered is, one, there was a gun recovered, and the gun is the

one which was identified here by the serial numbers by the police

officers and placed in the records." (R. 1393). Later, he

called the matter "a red herring run before your path here

today." (R. 1394). He wrote off the contradictory testimony

saying: "The only person that had any reason to throw away that

gun was the person that the police were after, the person that

25

the police suspected. They were after Mr. Swafford. He was the

only one that they were after. Is a man just going to throw away

a gun when there is nobody questioning him and it doesn't even

appear to be similar to anything?" (R. 1394).

Of course the jury did not know that on February 14, 1982,

Mr. Walsh told Mr. Lestz to drive around the Daytona Beach area

so that he could find a place to unload two .38's. This was the

same Mr. Walsh who had dropped Mr. Lestz off at a laundromat a

block away from the Fina station fifteen minutes before Brenda

Rucker disappeared. This same Mr. Walsh whose whereabouts were

unaccounted for until four hours later when he showed back up at

the laundromat nervous and sweaty. This information was

contained in a police report that was not received by defense

counsel and would have provided an answer to the prosecutor's

otherwise rhetorical question. Under Kyles and Lightbourne, the

focus is the possible effect on the jury of the previously

unknown exculpatory evidence. The United States Supreme Court

explained in Kyles:

Justice Scalia suggests that we should

"gauge" Burns's credibility by observing that

the state judge presiding over Kyles's postconviction

proceeding did not find Burns's

testimony in that proceeding to be

convincing, and by noting that Burns has

since been convicted for killing Beanie. Of

course, neither observation could possibly

have affected the jury's appraisal of Burns's

credibility at the time of Kyles's trials.

115 S. Ct. at 1573 n. 19 (citation omitted)(emphasis added).

Here then the issue is not whether Judge Hutcheson found Mr.

Lestz credible, but whether confidence is undermined in the

26

outcome of the trial where the jury did not hear the evidence

which would have answered the trial prosecutor’s otherwise

rhetorical question which was offered to dispose of Mr.

Swafford’s claim that there were two different guns at the

Shingle Shack. Confidence must be undermined in the outcome when

the proper cumulative analysis is employed, and Mr. Swafford

continues to rely upon the cumulative analysis which is set forth

in the Initial Brief as the proper analysis.

Contrary to the State’s argument, Mr. Swafford offered the

Overton Commission Report and the Shevin Report under section

90.203. The circuit court gave the State ample time in circuit

court to consider the reports and make any objection that it

wished. The State objected on only three grounds: relevancy,

hearsay, and authentication. The circuit court sustained the

objection on the authentication grounds. When collateral counsel

sought to explain that the judicial notice provisions precluded

such a ruling, counsel was cut off and precluded from making a

record.

The State’s argument in its Answer Brief regarding

authentication is simply not applicable under the judicial notice

provisions. The State cites no authority for its position.

Certainly, the statute does not provide a basis for objecting on

authentication grounds.

The State’s claim that there is no evidence that the Overton

Commission Report or the Shevin Report were official actions is

27

absurd. Surely, the fact that this Court ordered the reports

prepared and submitted to the Court accounts for something.

The State hearsay argument is equally silly. The

conclusions and findings in those reports are no more hearsay

than is the opinion of any court making legal and factual

determinations.

Finally, the State’s most vociferously pressed argument

below (relevancy) seems now to have been abandoned in favor of

exactly the opposite argument (cumulative). However, that

argument makes no sense either since the circuit court did not

find diligence. Evidence can only be cumulative where it is

being sought to be introduced to establish a point already

proven.

As already explained, Lightbourne v. State is virtually on

point and establishes that Mr. Swafford’s collateral counsel did

exercise due diligence in their efforts to locate Mr. Lestz.

The State also argues that trial counsel did not exercise

due diligence when he accepted the trial prosecutor’s

representation that all exculpatory evidence had been disclosed.

This argument was squarely rejected by the United States Supreme

Court in Strickler. The prosecutor cannot transfer his

obligation to make a search for and disclose exculpatory evidence

to defense counsel by representing that he has fulfilled his

obligation and offering defense counsel an opportunity to double

check. If defense counsel cannot rely upon the prosecutor to

28

have fulfilled his obligation, then there is no real

prosecutorial obligation.

Further, the State never proved that the Walsh, Lestz and

Levi materials were in the trial prosecutor’s possession or in

the boxes that he offered to give trial counsel access to. The

State did not call the trial prosecutor as a witness at the

evidentiary hearing below. Moreover, the 119 materials disclosed

in this Court did not show that the State Attorney’s Office

possessed the Walsh, Lestz or Levi materials.

Finally, if trial counsel did not exercise due diligence in

taking the prosecutor up on the offer to let him double check the

prosecutor’s determination that there was no exculpatory evidence

in the boxes in the prosecutor’s office, then his performance was

unreasonable and thus deficient. This Court has already so held.

State v. Gunsby, 670 So. 2d 920 (Fla. 1996). Accordingly, relief

is still warranted because cumulative consideration of all the

undiscovered or undisclosed evidence must undermine confidence in

the outcome of the trial where the jury did not hear the wealth

of exculpatory evidence which has been uncovered in postconviction

proceedings.

For the reasons stated herein and in the Initial Brief, Mr.

Swafford in entitled to a new trial. Exculpatory evidence

implicating Micheal Walsh as the person who killed Brenda Rucker

was not disclosed by the State. The evidence implicating Walsh

in the murder would certainly have been sufficient to support a

29

conviction of Walsh the crime. Its nondisclosure clearly

undermines confidence in the guilty verdict returned against Mr.

Swafford.

I HEREBY CERTIFY that a true copy of the foregoing Reply

Brief has been furnished by United States Mail, first class

postage prepaid, to all counsel of record on July 21, 1999.

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

9701 Shore Rd. Apt 1-D

Brooklyn, NY 11209

(718) 748-2332

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL

COUNSEL-SOUTH

1444 Biscayne Blvd.

Miami, FL 33132

(305) 377-7580

COUNSEL FOR APPELLANT

Copies furnished to:

Judy Taylor Rush

Assistant Attorney General

Department of Legal Affairs

444 Seabreeze Boulevard, Suite 500

Daytona Beach, Florida 32114