IN THE SUPREME COURT OF FLORIDA

OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH

PRELIMINARY STATEMENT

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 the 1988 direct appeal;

"PC-R1. ___" - Record on appeal to this Court from the 1990 summary denial of post-conviction relief;

"PC-R2. ___" - Record on appeal to this Court from the 1994 appeal from the second summary denial of post-conviction relief;

"PC-R3. ___" - Record on appeal to this Court from the 1996 appeal from the third summary denial of post-conviction relief;

"PC-R4. ___" - Record on appeal to this Court following the 1997 evidentiary hearing ordered by this Court;

"PC-R4T. ___" - Transcript of evidentiary hearing conducted February 6-7, 1997;

"PC-R5. ___" - Record on appeal in the current appeal from the denial of DNA testing;

All other citations will be self-explanatory or will otherwise be explained.

REQUEST FOR ORAL ARGUMENT

This is a capital case in which DNA testing under Rule 3.853 has been denied. 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.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

Page

INTRODUCTION

In his dissenting opinion, Justice Anstead stated:

This case represents one of those truly rare instances where this Court has summarily brushed aside on wholly speculative grounds a colorable claim of actual innocence and a possible serious miscarriage of justice. There has been absolutely no focus here on the reality of what actually happened. Tragically too, the claim arises out of a demonstrated Brady violation where the police and prosecuting authorities failed to provide the defendant, as they were constitutionally obligated to do, with substantial evidence of another person’s guilt for the crime for which the defendant has been sentenced to die.

Swafford v. State, 828 So. 2d 966, 978-79 (Fla. 2002) (Anstead, J., dissenting)(emphasis added). In her dissenting opinion, Justice Quince stated:

The highly circumstantial evidence produced at trial, along with the evidence Swafford claimed in his first [post-conviction] motion was not disclosed by the State concerning other suspects and witnesses, when considered in conjunction with the Lestz affidavit, would probably produce an acquittal at trial.

Swafford v. State, 828 So. 2d at 985 (Quince, J., dissenting)(emphasis added).

In November of 1985, Mr. Swafford was convicted of first degree murder and sentenced to death. He became a suspect nearly sixteen months after the February, 1982, homicide when Roger Harper, seeking consideration, provided Mr. Swafford’s name to law enforcement. The evidence that was developed against Mr. Swafford was circumstantial. There was no physical evidence linking Mr. Swafford to the murder other than a .38 pistol 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 itself circumstantial and internally inconsistent. Mr. Swafford’s defense was innocence. Specifically, his trial attorney 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, made sure she was fully clothed, and then shot her nine times.

In early October of 1990, police reports concerning law enforcement’s 1982 investigation of other suspects James Michael Walsh, Walter Levi, and Michael Lestz were disclosed to Mr. Swafford’s collateral counsel. These reports clearly implicated James 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).

The investigation of James Michael Walsh as perpetrator of the Rucker homicide had ended on January 25, 1983, when Michael Lestz was confronted about his failure to pass a polygraph in July of 1982 during which he denied any involvement in the Rucker homicide. (PC-R4T. 538). On January 25, 1983, Michael Lestz revealed that at 6:00 a.m. on February 14, 1982, James Michael Walsh left Mr. Lestz at a laundromat approximately one block away 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’s vehicle to go find some drugs, this being fifteen minutes before Ms. Rucker was taken from the Fina Station accompanied by a man whose face in a composite drawing "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 .38s. On January 25th, 1983, it was known that a .38 had mostly likely been the murder weapon. Mr. Lestz’s January 25th statement was "very similar" to what Walter Levi had already stated, and was thus corroborated by another witness. (PC-R4T. 558). Yet as was 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 of Michael Walsh occurred.

Through mitochondrial DNA testing, it can be determined whether the mitochondrial DNA in those numerous hairs match either Mr. Swafford or Ms. Rucker. If mitochondrial DNA is found that establishes that the hair found with the body originated with someone other than Ms. Rucker or Mr. Swafford, the results would be highly exculpatory. Accordingly, Mr. Swafford has sought DNA testing under Rule 3.853.

STATEMENT OF THE CASE

a. Procedural History

Mr. Swafford was charged with first-degree murder, sexual battery and robbery. A jury found Mr. Swafford guilty of first-degree murder and sexual battery, but acquitted him of robbery. The jury recommended a death sentence by a vote of 10 to 2 (R. 1661), and the court sentenced Mr. Swafford to death. This Court affirmed the convictions and death sentence. Swafford v. State, 533 So. 2d 270 (Fla. 1988).

In 1990, Florida’s governor signed a death warrant scheduling Mr. Swafford’s execution for November 13, 1990. Mr. Swafford filed a motion under Rule 3.850, Fla. R. Crim. P., in the circuit court, which denied the motion without an evidentiary hearing. Mr. Swafford appealed to this Court and filed a petition for a writ of habeas corpus. This Court affirmed the denial of Rule 3.850 relief and denied the habeas corpus petition. Swafford v. Dugger, 569 So. 2d 1264 (Fla. 1990).

In 1990, Mr. Swafford filed a federal petition for a writ of habeas corpus in the United States District Court, which denied relief. Mr. Swafford appealed to the United States Court of Appeal for the Eleventh Circuit. In November of 1990, the Eleventh Circuit stayed Mr. Swafford’s execution. Proceedings in that court were later held in abeyance while Mr. Swafford pursued other state remedies.

In 1991, Mr. Swafford filed a second petition for a writ of habeas corpus in this Court. Subsequently, this Court denied relief. Swafford v. Singletary, 584 So. 2d 5 (Fla. 1991).

In 1991, Mr. Swafford filed a second Rule 3.850 motion. The circuit court denied the motion without an evidentiary hearing, and Mr. Swafford again appealed to this Court. While the appeal was pending, Mr. Swafford asked this Court to relinquish jurisdiction for an evidentiary hearing regarding trial counsel’s status as a deputy sheriff and on whether the circuit court judge engaged in ex parte communications with the State in denying the first and second Rule 3.850 motions. This Court granted the requested relinquishment, and the circuit court held an evidentiary hearing on these two issues. The circuit court denied relief, and Mr. Swafford appealed. This Court affirmed the denial of Rule 3.850 relief. Swafford v. State, 636 So. 2d 1309 (Fla. 1994).

In 1994, Mr. Swafford filed a third Rule 3.850 motion. The circuit court denied the motion without an evidentiary hearing. Mr. Swafford appealed to this Court, which reversed and ordered an evidentiary hearing. Swafford v. State, 679 So. 2d 736 (Fla. 1996). In 1997, the circuit court held an evidentiary hearing and denied relief. On appeal, this Court affirmed the denial of Rule 3.850 relief. Swafford v. State, 828 So. 2d 966 (Fla. 2002).

In October of 2002, Mr. Swafford filed a Motion For DNA Testing in which he sought DNA testing of the available physical evidence. (PC-R5. 27).

In March of 2003, the State filed a response to this motion, in which it urged the circuit court to deny the motion. As to the mitochondrial DNA testing of the hair evidence, the State contended that Mr. Swafford’s motion "offered nothing but speculation regarding an alternative source, let alone one that exculpates him." (PC-R5. 75). As to nuclear DNA testing, the State did reveal in its response to Mr. Swafford’s Motion For DNA Testing that the blood samples drawn from Ms. Rucker during the autopsy were destroyed in 1986. (PC-R5. 76). Thus, the State contended that DNA testing of vaginal swabs could not be done because there was no means of establishing what was Ms. Rucker’s DNA.

On April 25, 2003, the circuit denied the motion. (PC-R5. 78). Thereafter, Mr. Swafford filed a notice of appeal to this Court.

b. Relevant Facts

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, indicating 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).

Examination of Ms. Rucker’s body provided evidence that she had been sexually assaulted, both vaginally and anally. A lab report lists the following items collected at the scene:

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.

(PC-R5. 38). The lab reports reflect that the following evidence was collected from Ms. Rucker’s body:

a. blood sample;

b. vaginal swabs;

c. oral swabs;

d. anal swabs;

e. swabs from back of head;

f. swabs from behind right ear;

g. swab from behind right ear.

(PC-R5. 42). This evidence was forensically examined and an FDLE report issued on April 19, 1982. The report noted "[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." (PC-R5. 43).

Reports from the FDLE Lab noted that some of the physical evidence collected contained biological material:

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.

(PC-R5. 45-46). These items were examined forensically. In its report of May 12, 1982, the FDLE noted that "[f]our light brown to blonde hairs typical of Caucasian pubic hair were collected from the tissue [found with Ms. Rucker’s body]. (PC-R5. 46). "These hairs are suitable for comparison purposes pending the submission of known hair samples from the subject." (PC-R5. 46). As to the pubic hair sample collected from Ms. Rucker, it was noted that there were "numerous brown and dark brown hairs typical of Caucasian pubic hair [that were] suitable for use as a known hair sample." (PC-R5. 46). As to the scalp hair sample collected from Ms. Rucker, it was noted that there were "numerous brown hairs typical of Caucasian scalp hair and is suitable for use as a known hair sample." (PC-R5. 46). As to the pubic hair combing, it was noted that there were "[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." (PC-R5. 46). As to the questioned hairs collected from the pubic region, the report indicated "[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." (PC-R5. 47). As to the blouse and sock, the report noted the presence of "[t]hree blonde hair fragments typical of Caucasian scalp hair." (PC-R5. 47). As to the debris in the shoes and socks, "[s]everal hairs typical of Caucasian body hair, in addition to several animal hairs, are contained in the debris." (PC-R5. 47).

Long before Roy Swafford’s name surfaced in the case, Michael Walsh was investigated as a suspect. According to a supplemental police report dated March 17, 1982, Michael Walsh had just been arrested in Arkansas. (PC-R4T. Def. Exh 2). Arkansas authorities discovered in his possession a BOLO for the Rucker homicide in Daytona Beach. (PC-R4T. 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." (PC-R4T 546). Law enforcement also determined that Walsh, along with 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's 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 pistoled 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 him not knowing where they went." (PC-R4T. 117, Def. Exh. 6 at 4). During Mr. Lestz’s July 23rd interview, a polygraph examination was administered. Deception was found in many of the questions answered by Mr. Lestz.

On July 23, 1982, Mr. Walsh was interviewed regarding the Rucker homicide. (PC-R4T. Def. Exh. 6). A report summarizing this interviewed was prepared July 26, 1982. "[I]t indicated that Walsh indicated that he would not relate 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 unsure of his statements." (PC-R4T. 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 Ormand Beach food store and had simply retained it because of a matter of curiosity." (PC-R4T. 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)." (PC-R4T. Def. Exh. 6).

On August 25, 1982, Volusia County authorities interviewed Walter Levi. (PC-R4T. 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." (PC-R4T. Def. Exh. 7). The report observed that:

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.

(PC-R4T. 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 also stated that he had examined Lestz’s burns and found "that these burns on Lestz’s body strongly resemble those burns found on the body of Brenda Rucker." (PC-R3. 205). Deputy Buscher further explained that 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).

No relevant physical evidence was found as a result of the search of the vehicle which had previously belonged to Mr. Lestz. 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. (PC-R4T. 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's problems with the polygraph "indicate[d] to [Captain 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. (PC-R4T. 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 on numerous occasions dropping him off on Granada Boulevard at the laudromat, 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." (PC-R4T. 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." (PC-R4T. Def. Exh. 5 at 4).

After the January 25th interview of Mr. Lestz, law enforcement stopped its investigation of Mr. Walsh as a suspect in the Rucker homicide.

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." (PC-R4T. Def. Exh. 8 at 2). Mr. Harper was serving a seven year sentence for "his part in the burglary of a motor home and the shooting of the motor home’s occupants." (PC-R4T. 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]." (PC-R4T. 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. (PC-R4T. Def. Exh. 8 at 5). Mr. Harper had told Mr. Tanner that he, Harper, "might have information on a murder. He 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." (PC-R4T. Def. Exh. 8 at 5).

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 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. Griswold indicated came from the men’s restroom at the Shingle Shack. (R. 1062).

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.

STANDARD OF REVIEW

This is an appeal from the circuit court’s order denying Mr. Swafford’s Motion for DNA testing. The circuit court’s order is reviewed de novo.

SUMMARY OF THE ARGUMENT

Mr. Swafford’s Rule 3.853 motion for DNA testing of the physical evidence in his case should have been granted. The circuit court’s decision denying his motion deprived Mr. Swafford of a substantive right in violation of the Eighth and Fourteenth Amendments. The circuit court erred in holding that there was no reasonable probability of a different outcome. It also erred in failing to accept the factual allegations contained in the Rule 3.853 motion and in making adverse factual determinations without conducting an evidentiary hearing.

ARGUMENT

MR. SWAFFORD WAS ERRONEOUSLY DENIED HIS RIGHT UNDER FLORIDA LAW TO OBTAIN DNA TESTING OF THE AVAILABLE PHYSICAL EVIDENCE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

Section 925.11, Fla. Stat., adopted in 2001, extended to convicted criminal defendants the substantive right to obtain DNA testing in order to challenge their conviction or sentence. When this Court issued Fla. R. Crim P. 3.853, it established the court procedure to be employed when exercising that substantive right. Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633 (Fla. 2001). Rule 3.853 sets forth the pleading requirements to be used by a convicted defendant to obtain DNA testing of biological evidence. "[T]he purpose of section 925.11 and rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’" Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2nd DCA 2002), quoting In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d at 636 (Anstead, J., concurring).

Where the State of Florida extends a right or a liberty interest, the right or liberty interest may only be extinguished in a manner that comports with due process. This was explained by the United States Supreme Court in Evitts v. Lucey, 469 U.S. 387 (1985). There, the Court noted that the States were not required to provide a right to a direct appeal of a criminal conviction. However, where the right was nonetheless extended, due process protection attached:

The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms. For instance, although a State may chose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause.

Evitts, 469 U.S. at 400-01.

Rule 3.853 provides that in passing upon a motion for DNA testing, the circuit court should assess "[w]hether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial." Thus, a motion for DNA testing should be granted "if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial." Knighten v. State, 829 So.2d 249, 252 (Fla 2^nd DCA 2002). In making this determination, the allegations contained in the motion must be taken as true. Borland v. State, 848 So.2d 1288, 1290 (Fla. 2003)("If [ ] the State’s response creates a factual dispute, the trial court should conduct an evidentiary hearing to resolve the dispute.").

The United States Supreme Court and this Court have explained that the "reasonable probability" standard requires the court to analyze the evidence that the jury did not hear "collectively, not item-by-item." Kyles v. Whitley, 514 U.S. at 436 (1995); Young v. State, 739 So.2d 553, 559 (Fla. 1999). Thus, the proper standard is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435 (footnote omitted). See Lightbourne v. State, 742 So. 238, 247-48 (Fla. 1999). Thus, the "reasonable probability" standard mandated by Rule 3.853 requires cumulative consideration of all the evidence not heard by the jury as a result of either the State’s failure to disclose under Brady or defense counsel failure to adequately investigate under Strickland when determining whether there is a "reasonable probability" of a different outcome.

[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance for the prosecution.

514 U.S. at 453.

Thus, the fact that an eyewitness identified the defendant at trial is no bar to obtaining DNA testing under Rule 3.853. Manual v. State, 28 Fla. L. Weekly D1399 (Fla. 2^nd DCA June 13, 2003); Knighten v. State, 829 So.2d 249, 251 (Fla. 2^nd DCA 2002). With favorable DNA results, the eyewitness "testimony may not have been sufficient to convict." Riley v. State, 28 Fla. L. Weekly D1790 (Fla. 2^nd DCA July 30, 2003).

Certainly, favorable DNA results establish a "reasonable probability" of a different outcome in a circumstantial evidence case. In Huffman v. State, 837 So.2d 1147, 1149 (Fla. 2^nd DCA), the denial of DNA testing was reversed where the trial court had relied upon "significant circumstantial evidence" presented at trial to conclude that there was no reasonable probability that favorable DNA evidence would have led to an acquittal.

In denying Mr. Swafford’s motion for DNA testing, the circuit court relied upon the circumstantial evidence presented at trial to conclude that favorable DNA test results "would not render a reasonable probability that the defendant would have been acquitted or receive a lesser sentence." (PC-R5. At 84). This was clearly an erroneous application of the "reasonable probability" standard. Huffman.

In denying Mr. Swafford’s motion for DNA testing, the circuit court further stated, "although the evidence was initially obtained by law enforcement during its investigation and has been in the custody of government agencies since that time, the risk of contamination is substantial." (PC-R5. 83). The circuit court later concluded, "this Court finds the proof is unreliable to establish that the evidence containing the DNA is authentic and would be admissible at a future hearing." (PC-R5. 83). This factual determination that "the proof is unreliable" was made without conducting any sort of evidentiary hearing. It was made in violation of the principle that, "[i[n making factual determinations, a trial court can consider only sworn evidence." Borland. No sworn evidence subject to confrontation was presented by the State regarding the matter. The State did allege in its Response that the known blood from Ms. Rucker "was destroyed in 1986," but no proof was presented, let alone submitted to the crucible of adversarial testing. The circuit court erred in denying Mr. Swafford’s motion by making adverse factual determinations without conducting an evidentiary hearing.

D. Conclusion.

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.

The definitive answers that could be provided through DNA analysis of the biological evidence would finally provide the answers that law enforcement sought when the evidence was first submitted in 1982 for forensic analysis. Obviously, the State believed at the time of those submissions that the biological evidence could identify the perpetrator of the Rucker homicide. DNA testing could definitively identify the perpetrator now.

CONCLUSION

For all of the foregoing reasons, this Court should vacate the circuit court’s order denying Mr. Swafford’s Motion for DNA Testing.

CERTIFICATE OF SERVICE

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

497 Stonehouse Rd.

Tallahassee, FL 32301

(305) 984-8344

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Swafford

CERTIFICATE OF FONT

This is to certify that this Initial Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.

__________________________________