Pursuant to Fla. R. Crim. Pro. 3.853, the Defendant, ROY CLIFTON SWAFFORD, through undersigned counsel, respectfully moves this Court for DNA testing of the biological evidence collected by law enforcement and currently in the State=s possession that was obtained from the victim=s body and at the crime scene. For his reasons, he states as follows:

B. Mr. Swafford=s invokes Rule 3.853 and hereby moves for DNA testing of the biological evidence gathered by law enforcement in 1982.

a. three Michelob bottles and six-pack holder;

b. another Michelob bottle;

c. another Michelob bottle;

d. a Budweiser bottle;

e. tissue with suspected hair;

f. another Michelob bottle;

g. the paper bag found in the victim=s right hand;

h. a match book cover;

i. two cigarette butts;

j. three Budweiser cans;

h. a large paper bag.

Attachment A. The lab reports establish that the following evidence was collected from Ms. Rucker=s body:

This evidence was forensically examined and a FDLE report issued on April 19, 1982. The report noted A[a] chemical test for acid phosphatase, a substance characteristically found in seminal fluid, was positive on Exhibit Q26 (the vaginal swabs) and on Exhibit 26D (the anal swabs). However, semen could not be conclusively identified as no spermatozoa were found.@ Attachment B.

a. portion of toilet tissue containing questioned hairs;

b. pubic hair sample collected from Rucker;

c. scalp hair sample from Rucker;

d. pubic hair combings collected from Rucker

e. hair sample collected from area of wound;

f. fingernail scrapings collected from Rucker;

g. questioned hairs collected from pubic region;

h. bag collected from Rucker=s right hand;

i. bag collected from Rucker=s left hand;

j. hair sample collected from area of wound;

k. blouse and one sock;

l. vest;

m. slacks;

n. panties;

o. pair of shoes and one sock;

p. blood sample and swabs.

These items were examined forensically. In a FDLE report issued on May 12, 1982, it was noted that A[f]our light brown to blonde hairs typical of Caucasian pubic hair were collected from the tissue [exhibit 6]. These hairs are suitable for comparison purposes pending the submission of known hair samples from the subject.@ As to the pubic hair sample collected from Ms. Rucker, it was noted that there were Anumerous brown and dark brown hairs typical of Caucasian pubic hair [that was] suitable for use as a known hair sample.@ As to the scalp hair sample collected from Ms. Rucker, it was noted that there were Anumerous brown hairs typical of Caucasian scalp hair and is suitable for use as a known hair sample.@ As to the pubic hair combing, it was noted that there were A[n]umerous brown hairs typical of Caucasian pubic hair [that] were suitable for comparison purposes pending the submission of known hair samples from the subject.@ As to the questioned hairs collected from the pubic region, the report indicated A[n]umerous brown hairs typical of Caucasian pubic hair are contained in this exhibit. These hairs are suitable for comparisons purposes pending the submission of known hair samples from the subject.@ As to the blouse and sock, the report noted the presence of A[t]hree blonde hair fragments typical of Caucasian scalp hair.@ As to the debris in the shoes and socks, A[s]everal hairs typical of Caucasian body hair, in addition to several animal hairs, are contained in the debris.@ Attachment C.

5. Following the search of the vehicle associated with Michael Lestz that had been located in Sangamon County, Illinois, hairs found in that vehicle were examined and compared to the physical evidence obtained from Ms. Rucker=s body. A report prepared on October 14, 1982, noted A[n]o microscopic comparative examinations were performed on the hairs@ that were not the known Rucker hairs. This was Adue to the lack of known hair samples from the subjects.@ Thus, known hair samples from James Walsh were not submitted for comparison. The reports also concluded that none of the unknown hairs found in the van displayed microscopical characteristics similar to Ms. Rucker=s known hairs. Attachment G.

6. In June of 1983 after Roger Harper came forward suggesting that Roy Swafford was connected to the murder of Ms. Rucker, the Volusia County Sheriff=s Office submitted Mr. Swafford=s fingerprints for comparison to the latent prints lifted from the Rucker homicide crime scene. Subsequently, the FBI concluded that none of the eleven latent fingerprints and one latent impression lifted found at the Rucker crime scene matched the known fingerprints of Roy Swafford. Attachment H.

7. A[B]lood, saliva, head and pubic hair taken from [Mr. Swafford]@ was submitted to FDLE for comparison to the biological evidence collected from Ms. Rucker=s body and at the crime scene. Attachment I. Samples were obtained from Mr. Swafford pursuant to a court order in order to allow the comparison necessary to determine if he were the source of the biological evidence. Attachment J. Subsequently FDLE reported that A[f]our hairs typical of Caucasian pubic hair were collected from the tissue [exhibit 6]. Each of these hairs was microscopically examined and compared with the known pubic hair samples of Swafford and Rucker and each was found to be microscopically different from Swafford=s known pubic hair sample. Accordingly, these hairs did not originate from the source represented by Exhibit 83-1806(a). Both similarities and differences were noted between each of these hairs and Rucker=s known pubic hair sample. Therefore, no conclusion could be reached as to whether or not these hairs could have originated from the sourse represented by Exhibit 14-A.@ As to the pubic hair combing and the questioned hairs collected from the pubic region, the report concluded, A[n]o hairs microscopically different from Rucker=s pubic hair sample are contained in either of these items. The report does not mention any comparison previously noted of the hair found on Ms. Rucker=s blouse and sock, or in her shoe. Attachment K.

8. No DNA testing was ever conducted of the biological evidence collected in the Rucker homicide. Such testing was not available prior to Mr. Swafford=s trial. Certainly, the sophisticated testing necessary to test seminal fluid where no spermatozoa was observed was not previously available. Further, no DNA testing of the fingernail scrapings collected from Ms. Rucker=s body was ever conducted. Mitochondrial DNA testing of hair has only recently been found to be admissible in judicial proceedings. State v. Smith, 100 Wash. App. 1064 (Ct. App. Wash. 2000), State v. Underwood, 518 S.E.2d 231 (Ct. App. S.C. 1999). The testing of the hair evidence using mitochondrial DNA testing certainly could not have been conducted prior to the perfection of such testing techniques. Such testing can now analyze the mitochondrial DNA present in hair and match it to the mitochondrial DNA contained in the known hair. It can now be definitively determined which of the unknown pubic and head hairs actually originated with Ms. Rucker. It can also be definitively determined whether any of those hairs originated with Mr. Swafford. Similarly, the vaginal and anal swabs can be analyzed to determine if DNA from someone other than Ms. Rucker is present.

10. The evidence was last known to be in the possession of the Volusia County Sheriff=s Office.

11. The issue at Mr. Swafford=s trial was whether he and he alone was in fact the individual who had sexually assaulted and killed Ms. Rucker. The State made no contention that there was more than one perpetrator. The State relied upon testimony placing Mr. Swafford in Daytona Beach on the day of the murder. The State also relied upon evidence that a gun seized from a trash can in the men=s room of the Shingle Shack on the evening of February 14, 1982, was according to a ballistics expert the murder weapon. The State presented evidence that Mr. Swafford placed a gun in the women=s restroom at the Shingle Shack on February 14, 1982, in an effort to link Mr. Swafford to the murder weapon.

12. At trial, Mr. Swafford maintained his innocence. He has maintained his innocence throughout the intervening years. Mr. Swafford still maintains his innocence. By showing that he is not the source of the seminal fluid found in the vaginal and anal swabs taken from Ms. Rucker=s body, nor the source of the numerous hairs found on and near her body and that she is not the source of those hairs, Mr. Swafford could establish that someone else sexually assaulted and murdered Ms. Rucker.

13. The identify of the perpetrator of the sexual assault and murder of Ms. Rucker was disputed at trial and during all the intervening years of post-conviction litigation. The DNA testing of all of the biological evidence could establish that Mr. Swafford did not in fact sexually assault and murder Ms. Rucker. The DNA testing will bear Adirectly on {Mr. Swafford=s] guilt or innocence. Zollman v. State, 820 So.2d at 1063.

Ass=t. Attorney General