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I# THE 8UPRJU4B COURT OF FLORIDA

CASE NO. 80,182

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ROY CLIFTON SWABFORD,

Appellant,

V.

STATE 08 BLORIDA,

Appellee.

ON APPEAL FROM TEE CIRCUIT COURT

OF THE SEVENTH JVDICIW CIRCUIT,

IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

MICHAEL J. HINERVA

Interim capital Collateral

Florida Bar No. 092487

MARTIN J. MCCLAIlY

Florida Bar No. 0754773

HARUN SHABAZZ

Chief Deputy Cbr& Assistant CCR

Florida Bar No. 0967701

Representative '' FILED

SID J. WHITE

OCT 5 1993 C h i e f Assi8tant CCR

CLERK, F , E M E COURT

BY

OFFICE 08 THE CAPITA&

COLLATERAL REPRESENTATIVE

1533 South Monroe Streat

Tallahaasaa, FII 33301

(904) 487-4376

COUNSEL FOR APPELLANT

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PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court's

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

relief. The circuit court denied Mr. Swafford's claims without

an evidentiary hearing. This appeal followed.

Following the submission of his Initial Brief and the

State's Answer Brief, Mr. Swafford filed a Motion to Temporarily

Relinquish Jurisdiction and Hold Appeal in Abeyance. This Court

granted said motion and ordered an evidentiary hearing 'Ifor the

purpose of getting the facts regarding Attorney Ray Cass' status

as a special deputy sheriff and ex parte communication between

the State and the trial judge." A limited evidentiary hearing

was held March 29, 1993, where the presiding judge made factual

findings, but reached no legal conclusions.

Mr. Swafford was denied the opportunity to present evidence

on matters other than whether ex parte communication occurred and

whether Ray Cass was a special deputy sheriff. Mr. Swafford's

request for supplementary briefing was granted by this Court.

Both Mr. Swafford and the State have submitted supplemental

briefs addressing the limited proceedings below.

brief addresses the State's original answer brief and the

Supplemental answer brief.

This reply

Mr. Swafford does not waive any claims previously discussed.

He relies upon the presentations in his initial and supplemental

briefs regarding any claims not specifically addressed herein.

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Citations in this brief to designate references to the

records, followed by the appropriate page number, are as follows:

"R. - In - Record on appeal to this Court in first direct appeal;

"PC-R1. - I1 - Record on appeal from denial of the first Motion

to Vacate Judgment and Sentence; "PC-R2. - II - Record on appeal

from denial of the second Motion to Vacate Judgment and Sentence.

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

explained.

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TABLE OF CONTENTS

I) Pase

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

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

. . . . . . . . . . . . . . . . . . . . V TABLE OF AUTHORITIES

REPLY TO STATE'S STATEMENT OF THE CASE AND FACTS . 9 9 1

ARGUMENT I *

THE CIRCUIT COURT'S DENIAL OF ALL OF MR. SWAFFORD'S

CLAIMS WAS ERRONEOUS. . . . . . . . . . . . . . . . . . 18

A(3). Ex Parte Communication . . . . . . . . . . . . . 18

Iv ARGUMENT I1

MR. SWAFFORD WAS DENIED A FULL AND FAIR HEARING ON HIS

RULE 3.850 MOTION TO VACATE IN VIOLATION OF THE LAWS OF

THE STATE OF FLORIDA AND THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE

CIRCUIT COURT DENIED THE MOTION TO DISQUALIFY THE

JUDGE. . . . . . . . . . . . . . . . . . . . . . . . . . 30

ARGUMENT I11

ACCESS TO THE FILES AND RECORDS PERTAINING TO MR.

SWAFFORD IN THE POSSESS ION OF CERTAIN STATE AGENCIES

HAVE BEEN WITHHELD IN VIOLATION OF CHAPTER 119.01

SEQ, FLA. STAT. . . . . . . . . . . . . . . . . . . . . 31

ARGUMENT IV

THE STATE'S WITHHOLDING OF MATERIAL AND EXCULPATORY

EVIDENCE AND THE KNOWING PRESENTATION OF FALSE AND

PERJURED TESTIMONY VIOLATED MR. SWAFFORD'S RIGHTS UNDER

THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. . . 32

ARGUMENT XX

TRIAL COUNSEL'S UNDISCLOSED CONFLICT OF INTEREST IN

VIOLATION OF THE LAWS AND CONSTITUTION OF THE STATE OF

FLORIDA DENIED MR. SWAFFORD THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION. AN EVIDENTIARY HEARING IS REQUIRED. . . 33

iii

CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . 34

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TABLE OF AUTHORITIES

Pase

Adam v, Ductqer,

816 F.2d 1493 (11th Cir. 1987) . . . . . . . . . . . . . 30

Ake v. Oklahoma,

470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . 29

Beck v. Alabama,

447 U.S. 625 (1980) . . . . . . . . . . . . . . . . . . 29

Caldwell v. Mississimi,

472 U.S. 320 (1985) . . . . . . . . . . . . . . . . . . 29

Garcia v. State,

18 Fla. L. Weekly S382 (Fla. 1993) . . . . . . . . . . . 32

Herrins v. State,

580 So. 2d 135 (Fla. 1991) . . . . . . . . . . . . . . . 17

Huff v. State,

18 Fla. L. Weekly S396 (Fla. July 1, 1993) . . . . 18, 25-28

In Re Colony Sauare Co.,

819 F.2d 272 (11th Cir. 1987) . . . . . . . . . . . . . 30

Liahtbourne v. Ducrger,

549 So. 2d 1364 (Fla. 1989) . . . . . . . . . . . . . . 31

Love v. State,

569 So. 2d 807 (Fla. 1st DCA 1990) . . . . . . . . . . . 30

v u er,

18 Fla. L. Weekly 5447 (Fla. 1993) . . . . . . . . . . . 31

Rosers v. State,

18 FLa. L. Weekly S413 (Fla. 1993) . . . . . . . . . . . 31

Rose v. State,

601 So. 2d 1181 (Fla. 1992) . . . . 19, 20, 22, 24, 25, 27

Walton v. Dusser,

18 Fla. L. Weekly 5309 (Fla. 1993) . . . . . . . . . . . 31

Woodson v. North Carolina,

428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . 29

Wriaht v. State,

581 So. 2d 882 (Fla. 1991) . . . . . . . . . . . . . . . 17

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REPLY TO STATE'S STATEMENT OF THE CASE AND FACTS

In the State's Statement of the Case and Facts contained in

the Answer Brief served on December 3, 1992, record citations

were not included in violation of the Rules of Appellate

Procedure. As a result, that Statement of the Case and Facts

should be disregarded.

Moreover, the State completely overlooks the unrebutted

factual allegations contained in Mr. swafford's Motion to Vacate

and presented in circuit court. The State does not address the

exculpatory evidence the State possessed which Mr. Swafford's

jury did not hear. 1

The State does not address the July 20, 1982, Volusia County

Sheriff's Report which was not disclosed to Ray Cass, Mr.

Swafford's trial attorney. According to that report an

individual named, Lestz, revealed that he and two other

individuals Walsh had committed three murders, that Walsh had

committed three murders in Florida, and that one of the victims

was a white female in the Daytona Beach area (PC-R2 1686-87,

Composite Exh. 0).

The State does not address the August 30, 1982, Volusia

County Sheriff's Report which was not disclosed to Ray Cass.

According to that report law enforcement interviewed Levi and he

indicated that Lestz and Walsh left him at approximately 6:OO

'On Sunday, February 14, 1992, Brenda Rucker disappeared

from a Fina station in Daytona Beach between 6:15 a.m. and 6:20

a.m. Sheriff personnel recovered her body on February 15, 1982;

she had died from injuries resulting from numerous gunshots. Mr.

Swafford was convicted of committing that homicide.

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a.m., February 14, 1982, the date of the Rucker homicide, within

several blocks of the Fina station in Daytona Beach where Ms.

Rucker disappeared shortly after 6:15 a.m. (PC-R2 1686-87,

Composite Exh. 0).

The State does not address the January 31, 1983, Volusia

County Sheriff's report which was also not provided to Ray Cass.

That report indicated that Levi had again been interviewed and

that he stated that Walsh and Lestz left Levi in a Daytona Beach

motel room at 6:OO a.m. on the day of the Rucker homicide saying

they had a job to do (PC-R2 1686-87, Composite Exh. 0). This

report also indicated that Lestz stated that, between 6 : O O a.m.

and 10:30 a.m. on the day of the Rucker homicide, Walsh and Levi

left him in a laundromat in Daytona Beach, a couple of blocks

from the Fina station. Lestz further indicate that Walsh had on

numerous occasions frequented the Fina station from which Rucker

was abducted (Composite Exh. 0).

The State does not address the March 17, 1982 Volusia County

Sheriff's report which was also not provided to Ray Cass.

report indicated that Walsh was arrested in Arkansas following an

armed robbery in which he told the victim that "he had 'killed'

three persons' in the State of Florida" (Composite Exh. 0).

According to the Arkansas authorities, Walsh strongly resembles

the composite of Brenda Rucker's killer.'' (Composite Exh. 0).

This

The State does not address the September 3, 1982, affidavit

of Bernard Buscher, a Volusia County Deputy Sheriff. This

affidavit was not provided to Ray Cass. Deputy Buscher stated

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that, when Walsh was arrested in March of 1982, he had in his

possession Ita composite bulletin concerning details of the Brenda

Rucker homicidett (Composite Exh. 0). Deputy Buscher also

indicated that Brenda Ruckerls autopsy Itrevealed two marks on the

body of the victim possibly caused by the application of a

lighted cigarettett (Composite Exh. 0). Deputy Buscher revealed

in the affidavit that Lestz had stated that Walsh subjected Lestz

to homosexual attacks during which IILestz was burned with a

cigarettet1 (Composite Exh. 0). Deputy Buscher examined Lestz'

burns and **noted that these burns on Lestz' body strongly

resemble those burns found on the body of Brenda Ruckerll

(Composite Exh. 0). According to Deputy Buscher's affidavit,

Levi had indicated Walsh and Lestz left him in a Daytona Beach

motel room Ita half of an hour before Brenda Rucker was abducted.It

Walsh and Lestz left **saying they had something that they were

going ta; that they were not going to take Levi; and that he

could not be trustedt* (Composite Exh. 0). Lestz, on the hand,

told Deputy Buscher that at 6 : O O a.m. on February 14, 1982, Walsh

and Levi had taken his van and disappeared. When Walsh returned,

he sold two .38 caliber handguns in a Daytona Beach tavern.

Walsh **then dyed his hair black and forced Lestz to drive him to

New Orleanst1 (Composite Exh. 0).

The State does not address the July 26, 1982, Volusia County

Sheriffls Report which was disclosed to Ray Cass. According to

this report, Walsh was interviewed and Itallowed to view several

photographs of the Rucker homicide at which time it was observed

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that Walsh became extremely upset, disorganized, nervous and

unsure of his statements'' (Composite Exh. 0). Thereafter, ''Walsh

stated that he would not relate what he was doing or his

whereabouts during the period of February 14 - February 15, 1982,

stating 'that he would rather not say'" (Composite Exh. 0).

The State also chooses not to address the correspondence

between Roger Harper, a State's witness at Mr. Swafford's trial,

and Gene White, Mr. Swafford's prosecutor. These letters were

not disclosed to Ray Cass. These letters contradict Mr. Harper's

trial testimony and show that he did have an expectation of

benefit for testifying against Mr. Swafford and a motive to

fabricate. Mr. Harper indicated he had influence over other

witnesses that State wished to call: IIBelieve me, I can be very

instrumental in weather [sic] or not my family in Tennessee make

it to the trial'' (Composite Exh. 0). 111111 keep my end of the

deal if you will" Id.).

be more tainted if you helped me before the trial.

true, but if I say you did it for my safety I don't think it

would hurt matterst1 (u.). '!But I'm entitled to relief and I

want it now, not next year!" (u.) . ''1 wrote and asked Dave

Hudson about the reward that was supposed to be offered but he

never answered. I'm interest [sic] in that, can the reward be

collectedt* (u.). All of this contradicted Harper's trial

testimony, yet the State chooses not to address it in its brief.

llYou indicated that my testimony would

That may be

Mr. Swafford has repeatedly sought to present Ray Cass'

testimony in order to establish that this exculpatory evidence

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and much more was not disclosed to him (PC-R2 1699-1700). Mr.

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Cass is ready, willing, and able to testify that this evidence

was critical evidence he would have investigated and presented on

behalf of an innocent Mr. Swafford (14.). However, the State

objected to the presentation of Mr. Cass' testimony on anything

but whether he was a special deputy sheriff (PC-R2 1700-01). And

now, in its Answer Brief the State does not address this

proffered testimony. The State chooses to ignore the facts that

are essential to resolve the issues before this Court -- whether

Mr. Swafford's allegations and proffered testimony warrant an

evidentiary hearing.

The State instead wishes to rely on orders obtained from

Judge Hammond through ex parte communication to procedurally bar

consideration of the merits of Mr. Swafford's claims. To that

end, the State misrepresents the record and ignores the factual

determination by Judge Hutcheson that ex parte communication

occurred between Judge Hammond and the State.

At the beginning of the March 29, 1993, hearing, the State

argued that it was for Judge Hutcheson to decide whether ex parte

contact occurred:

MS. ROPER: I would like to respond to

the newest argument. If the Court is not

here to decide whether ex parte contact

occurred, I would like to know what we are

doing here, then. It just doesn't make sense

what Mr. McClain is saying and I think the

Court should make a ruling on that and

determine if, in fact, there was ex parte

contact whether such contact could be

harmless.

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The Court if fully empowered to make

such factual findings. Under Rose, if you

look at that opinion, which is basically the

reason we're here today, there was ex parte

contact between the Judge and a party and it

was remanded back to the same Judge again for

determination. In this case, I think the

finding of harmlessness would be appropriate,

should Mr. McClain be able to prove his

claim.

(PC-R2 1440).

Ultimately, Judge Hutcheson agreed with the State that he

should decide the factual question of whether ex parte contact

occurred (llI1m probably going to make just basically findings of

fact, and then pretty well leave it at that without making any

[legal] conclusions, draw any conclusions of the law or rulings

of the lawv1 PC-R2 1771). Judge Hutcheson then found that ex

parte communication occurred between Judge Hammond and the

Assistant Attorney General assigned to Mr. Swafford's case (PC-R2

1778). Specifically, Judge Hutcheson found:

I'll make a finding of fact that the

Judge did direct his law clerk to call the

Attorney General's office to have the

proposed order to be prepared, and ultimately

it looks like it might have been prepared by

the State Attorney's office after the

Attorney General's contacted them. But I'll

find that Judge Hammond did direct his clerk

to call the State Attorney -- or the Attorney

General's office and that to request and

prepare a proposed order.

And that I'll also find that though Mr.

Rowe attempted to also call the CCR office,

he did that after hours.

talked to a male voice. Did not ask the

man's name. Did not ask the man's position,

other than Mr. Rowe said it was someone that

seemed to know what was going on. So, he did

not ascertain the man's name or whether or

not he was talking to a lawyer, an

He apparently

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investigator, a paralegal, maybe a secretary

or, as pointed out, maybe the janitor in

there.

I find that that was after hours and,

frankly, I'll make a finding that it was

ineffectual as far as at least even putting

CCR on notice that the Judge had directed

that this clerk call the Attorney General's

office and get a proposed order.

I'll further find that before it was

signed by Judge Hammond or ultimately an

order prepared by the Attorney General or the

State Attorney's office was signed, there was

no attempt to get a copy to the CCR so that

it had an opportunity to review it and an

opportunity to file any objections to the

proposed order, as pointed out in the Rose

case.

I should make a further findings of fact

as far as the contact of the Attorney

Genera's office, there was no attempt at the

time by Judge Hammond's law clerk. He did

not attempt to either, one, set up a

conference call so at the time he was talking

to the Attorney General's office he could

talk to, you know, either attorney or at

least a representative of the CCR office.

N o r , was it done by way of written

communication, where at least maybe through

the mail they would have had basically the

same amount of opportunity to know what was

going on. So, those are the findings of fact

I'm going to make and, frankly, at this point

I'm going to do nothing further.

(PC-R2 1778-79).

Not once in its Supplemental Answer Brief does the State

address Judge Hutcheson's factual findings. In fact, the State

argues, from evidence that Judge Hutcheson rejected as not

convincing, that Barbara Davis, Assistant Attorney General,

advised Mr. Swafford's collateral counsel of ex parte

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communication (Supplemental Answer Brief at 6) . Judge

2 The State's brief contains many references to evidence

which Judge Hutcheson did not accept as fact. Further, the State

completely overlooks one important factual dispute that Judge

Hutcheson did not believe was necessary to resolve. Barbara

Davis and Judge Hammondts law clerk did not agree as to the

content of the ex parte communication. Barbara Davis testified:

a Now, you state that you revised an

order at the request of Judge Harnmond's law

clerk, Randy Rowe. At the time you did that,

did you discuss the merits of the case with

Mr. Rowe at all?

A No. He just read the changes and

I just typed them in.

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Q And he told you exactly what to

type?

A Yes.

Q And did you type exactly as he

dictated to you?

A I think so.

Q You didn't make any changes on your

own, did you?

A I don't think so. I recall one

incident that when I was reviewing the order

that he had asked me to cite Strickland.

When there was -- he had asked me to cite

Strickland in each instance of the

ineffectiveness because that was not done and

he wanted Strickland in each of the

ineffectiveness ones.

So, I recall that one specifically;

but most of them would read exactly like,

''Put this in. Take this out. Put that in.

Take that out.It And then there was the one

request that he said, "NOW, every time that

you see this, put that in.''

Q But you didn't make any changes

that he was not aware about on your own

initiative?

(continued ...)

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( . . .continued) 2

A No.

(PC-R2 1583-84). Judge Hammondls law clerk testified:

Q Would it then be fair to say you

don't recall whether you discussed

the merits of the case?

A I don't think I did.

a Well, can I ask, would the Judge's

position on the evidentiary hearing, whether

or not to be held then, would that be the

merits of the case?

A You mean whether he decided to have

a hearing?

the merits of the case.

I would not consider that to be

Q What would you consider --

A I don't remember if I asked -- or

if I asked her to find that there would not

be a hearing. I don't think he wanted the

hearing. I remember that. I don't know if I

told her to put that in the order or if she

just did it on her own. I don't remember.

a Well, in terms of when you say you

don't believe you talked about the merits

with her, what do you mean by merits?

A I guess the various allegations

claimed: Claims I, Claim 11, whatever. The

various claims, the allegations therein,

cases cited, I don't remember any discussions

with her on that.

a You don't recall discussing cases

cites, for example?

A I don't think I did.

Q Do you recall that the 3850,

itself, requested an evidentiary hearing?

That is one of the claims.

(continued ...)

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Hutcheson found that CCR was not put on notice of the ex parte

communication.

The State also improperly relies upon evidence that it

stipulated to striking from the record. In its brief, the State

asserts Judge Hammond "is satisfied that he ruled according to

the law'' (Supplemental Answer Brief at 8. However, when Mr.

Swafford sought to examine Judge Hammond on this after the State

introduced it, the following occurred:

Q My next question is: The July 20,

1982, Volusia County Sheriff's Office report

' ( . . .continued)

A I think so, yeah.

Q But YOU may have discussed with her

whether or not an evidentiarv hearins would

be held?

A I may have.

Q Do you have any recollection

discussing with her, for example, the

ineffective assistance of counsel?

A Not really, no. Other than just

denying the claim or denying the motion, I

don't think I discussed anything in detail

about the ineffective assistance of counsel.

a Do you have any recollection

dictating passages on ineffective assistance

of counsel to her?

A No, I don't have any recollection.

Q Do you think that you would not

have done that or you would have?

A I don't think I would have done

that. I don't remember the Judge asking me

to ask her to do that.

(PC-R2 1657-59)(ernphasis added).

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indicating that a person by the name of Lestz

gave information to the police that Walsh had

committed three murders in Florida, including

a white female. And Lestz further implicated

Walsh in the Daytona Beach murder of a white

female?

MS. ROPER: Objection, Your Honor.

Unless the witness has said he has reviewed

all the materials in front of him, I do not

know what was in front of him.

MR. McCLAIN: Your Honor, I think -- and

that's what I'm doing and I'm doing redirect.

She's asked the question. She's established

that he's comfortable with his decision. I

think I'm entitled, then, to go through

specific things and ask him about those since

she opened the door, she asked the question.

(PC-R2 1520-21). Ultimately, Judge Hutcheson ruled:

THE COURT: The State may have asked the

question. You may not have objected to the

relevancy. That doesn't mean I feel it's

relevant. Frankly, I feel it's irrelevant.

Had you objected to her question, I might

have sustained that.

And it strikes me, rather than litigate

any ex parte communication, if any between

Judge Hammond and the State, that it sounds

like now do we really litigate why he reached

the decision back then as far as what he

reviewed, rather than any ex parte

communications he might have had.

MR. McCLAIN: In light of that and in

light of the State's objection, then I would

make a motion to strike the prior testimony

regarding whether this Judge would still

reach the same conclusion today that he

reached then and whether he's satisfied and

comfortable with the decision he made to deny

the 3850 back in 1990, and again in 1992.

THE COURT: Any response to that, Miss

Roper?

MS. ROPER: We'll stipulate to that and

just go on.

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THE COURT: So accepted. And that will

be stricken.

(PC-R2 1 5 2 3 - 2 4 ) .

During summation the State again t r y to rely upon Judge

Hammond's alleged satisfaction on which Mr. Swafford had been

denied cross-examination. Thereupon, Mr. Swafford's counsel

objected:

MR. McCLAIN: Your Honor, let me note

something for the record. I believe that

testimony was objected to and stricken with

regard to what Judge Hammond would have ruled

either now or later. If I'm mistaken, I can

be corrected; but I thought that I attempted

to get into factual matters and that

everybody agreed to withdraw on that

testimony.

MS. ROPER: I think Judge Hammond

testified, if I remember, that he would have

ruled on it the same had it been entitled --

MR. McCLAIN: And that was my objection.

I objected to that, and you withdrew it.

MS. ROPER: He also ruled later --

MR. McCLAIN: You withdrew that evidence

because I wanted to ask him about what he had

considered, and you withdrew that so I would

not be able to ask that question.

MS. ROPER: I don't recall that.

MR. McCLAIN: Well, Your Honor, I think

we need to have a ruling on that because if

that's the testimony, you know, I want to

object because I didn't get to ask Judge

Hammond the questions that needed to be asked

then.

If she's going to say he would still

rule on it the same way, because I didn't get

to go through all of these documents we

wanted to go through with him.

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MS. ROPER: I will rely on the Court's

ruling. I need a ruling too, though, because

the Florida Supreme Court is going to want to

know why the State submitted this evidence.

We can rely on the record for that

argument. I think I'd like to be able to

finish my argument without being interrupted.

THE COURT: The rule on that, my

recollection is the same as Mr. McClain's,

that I did rule on that and either barred the

testimony or the question was withdrawn.

(PC-R2 1758-59).

Since evidence of Judge Hammond's satisfaction with his

rulings was not subject to cross-examination and was in fact

stricken from the record, it is highly improper for the State to

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submit such evidence in its statement of the case and rely on

such evidence as establishing harmless error.

The State also makes the false assertion that Ray Cass

"voluntarily told CCR he had such a card prior to 1990. He was

present in an interview and 'Well, I have one, too'11

(Supplemental Answer Brief at 13). Ray Cass testified as

follows :

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Q NOW, in terms of talking to CCR

about this status as a special deputy

sheriff, do you have any specific

recollection that prior to that deposition --

and I believe the date of that deposition was

December 7th 1992 -- and I believe there was

attorneys for Mr. Herring and a Judy

Dougherty from CCR that were present?

A Yes.

Q Do you have any specific

recollection that prior to that deposition

you ever told CCR that you had such a card?

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A I thought I was in the presence of

Mr. Pearl when he was being asked some

questions, or it was after he had been

interviewed by CCR and we were just talking

to the person from CCR. I can't remember who

it was.

Q Can I ask you this: Mr. Pearl was

involved in cases that were non-CCR cases but

also Duff cases. Do you know whether it was

an attorney for CCR or an attorney for one of

the Defendants that may not have been a CCR

client? Do you have a recollection?

MS. ROPER: Obj ection. Asked

and answered.

THE COURT: It will be

overruled.

THE WITNESS: Would you say

that again, please, sir? I'm

sorry.

CONTINUED REDIRECT EXAMINATION

BY MR. McCLAIN:

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Q I'm just trying to ascertain how

sure you are that it would have been a CCR

attorney. Could it have been a lawyer for a

capital client that did not work for CCR? It

was a volunteer lawyer, like Mr. Herring, was

represented to Mr. Harich by non-CCR lawyers?

A It might have been.

Q Do you recall Jay Nickerson?

A Yes. With CCR?

Q I don't remember who it was that I

did. It was a spontaneous statement on my

part.

Q Do YOU recall if it was in

connection with the Swafford case?

A No, I don't think it was.

Q Do, to the best of your

recollection, you didn't tell anybody in

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connection with the Swafford case about your

status as a special deputy sheriff?

A N o t until I was interviewed by CCR.

I think it was one of your investigators.

Q And when would that have been?

A Last f a l l or winter.

a About the time of the deposition

with Judy Dougherty?

A Yes, sir.

* * *

Q To clarify, you don't recall ever

telling Mr. Swafford that you had the card?

A No, sir, I don't think I ever did.

Q And you don't recall telling his

attorney, Mr. Nickerson, that you had the

card in connection with the Swafford case?

A I don't think so.

(PC-R2 1724-26)(emphasis added).

With reference to the special deputy sheriff issue, the

State again chooses to ignore the factfindings that Judge

a

Hutcheson made. Judge Hutcheson noted that ItMr. Cass said the

card said he was a special deputy sheriff" (PC-R2 1774).

However, Judge Hutcheson found that Mr. Cass was issued a card

which stated ttRegular Constituted Deputy Sheriff, to serve and

execute all legal papers and processes in Volusia County,

Florida, with full power to act as deputy sheriff of Volusia

County until my term expires or this appointment is revoked" (PCR2

1775).

15

However, Judge Hutcheson ruled at the State's urging that

a Mr. Swafford could not present evidence of how Mr. Cass' status

affected Mr. Swafford's case. Mr. Swafford sought to introduce

evidence to link Mr. Cass' status and its affect on the State's

decision not to disclose exculpatory evidence and Mr. Cass'

failure to pursue the exculpatory evidence. The State objected,

and Judge Hutcheson ruled evidence of how Mr. Cass' status

affected Mr. Swafford's trial would not be admitted:

a

MS. ROPER: In lieu of Mr. Cass taking

the stand, that's -- I understood that's what

we did on Mr. Pearl in Lieu of Mr. Pearl on

proffer taking the stand and saying the same

thing. Mr. McClain just put on the record

where he understood Mr. Pearl would testify

to had he been called to give testimony on

proffer, since I already said he could not,

as evidence in chief on those issues.

THE COURT: So, the States agrees, at

least as far as just adopting for Mr. Cass,

what Mr. McClain has already put on the

record far Mr. Pearl and in that respect?

MS. ROPER: We would agree to that, Your

Honor. We wanted to hear from Mr. Cass as a

witness as to the circumstances of the

status.

THE COURT: That's what I am getting to:

and then we can just call Mr. Cass maybe

regarding, you know, what if anything he had

gotten from the Sheriff's Department or

Volusia County and, you know, the extent youa

l l wanted to whatever privileges or rights

that grants him. That sounds okay to both of

you?

MR. McCLAIN: At some point in time it

seems to me there would be a questions to

Your Honor as to exactly where the line is

drawn in terms of the status, because I don't

see those two separate issues. obviously the

State sees it as two separate issues.

16

a

I)

a

a

I don't see how you can separate it, but

there will be a question for Your Honor at

some point in time of where one issue ends

and the other issue begins if you believe

there are two different issues.

THE COURT: Y ou mean as if he had status

as a slsecial delsutv sheriff, how that

affected his performance?

MR. MCCLAIN: Yes, Your Honor.

THE COURT: I thousht I had already

ruled that I'm not q oina t o aet into that,

that I don't see the Supreme Court sending

that to me. So, I think the record is

protected for any further Appellate Court

review of that. That over your objections,

I'm not going to allow you to get into that

area of argument.

(PC-R2 1701-02)(emphasis added). Thus, the evidentiary hearing

was limited by Judge Hutcheson solely to whether Ray Cass was a

special deputy sheriff. M r . Swafford was precluded from pursuing

these matters upon which this court has ordered evidentiary

hearings in other similarly situated cases. Herrinq v. State,

580 So. 2d 135, 139 (Fla. 1991)(Itan evidentiary hearing [is

necessary] to determine whether Herring's public defender's

service as a special deputy sheriff affected his ability to

provide effective legal service"). Wriqht v. State, 581 So. 2d

882, 887 (Fla. 1991)(11We find that we must remand for an

evidentiary hearing on whether Wright's public defender's service

as a special deputy sheriff affected his ability to provide legal

assistance") .

a

17

ARGUMENT I

THE CIRCUIT COURT'S DENIAL OF ALL OF MR.

SW-BORD'S CLAIMS WAS ERRONEOUS.

3 A(3) Parte Communication.

In its Supplemental Answer Brief, the State has made several

inaccurate assertions. Initially, the State suggest the Mr.

Swafford is complaining for the first time in his supplemental

brief about the two incidents of ex parte communication

(Supplemental Answer at 18). The State makes this meritless

assertion in the face of the fact that Mr. Swafford has requested

Rose relief concerning the incidents of ex parte communication in

Argument I of his initial brief presently pending before this

court. Mr. Swafford described in detail the factual

circumstances surrounding both incidents of ex parte

a

communication (see Initial Brief of Appellant (1992) at 20-21,

25-27). In Argument I, Mr. Swafford argued that orders which are

the product of ex parte communication are tainted and subject to

reversal because of the due process violation which results when

a

orders are obtained in an ex parte fashion. See Huff v. State,

18 Fla. L. Weekly S396 (Fla. July 1, 1993).

a

31n the State I s supplemental answer it has combined

arguments I and 11. The State's failure to recognize that these

arguments are separate and distinct may explain the State's

failure to address Mr. Swafford's Argument I that the orders

obtained through ex parte communication must be nullified.

As noted in the preliminary statement, Mr. Swafford does not

waive any claims previously discussed and relies upon the

presentations in his initial and supplemental briefs regarding

any claims not specifically addressed herein.

18

0

This Court granted Mr. Swafford motion to relinquish

jurisdiction #'for the purpose of getting the facts regarding ...ex

parte communication between the State and the trial judge" and

also granted Mr. Swafford's motion to supplement his brief based

on the record developed at the limited evidentiary hearing below.

Based upon the fact findings made by Judge Hutcheson at the

State's urging, it is clear that the prior orders summarily

denying Rule 3.850 relief were the product of ex parte

communications. Accordingly Rose and Huff require that those

orders be vacated.

Next, the State suggests that Mr. Swafford's Iltheoryl' of

case is that the circuit courtls denial of the motion to

disqualify is the primary issue (Supplemental Answer at 18, 19).

This assertion is highly inaccurate. Mr. Swafford's has always

a

maintained that the two incidents of ex parte communication

created a situation where he was denied an opportunity to object

to the State's proposed orders (pose) and also constituted *

a

Ir

legally sufficient grounds for disqualification.

As noted above, Mr. Swafford described in his initial brief

both the 1990 and 1992 incidents of ex parte communication. He

requested relief in accordance with the dictates of Rose:

The current situation is identical to

the issue recently addressed by this Court in

Rose v. State, 601 So. 2d 1181 (Fla. May 28,

1992). As observed in Rose, it is improper

for the State to prepare an order for the

court's signature without the defense being

given an opportunity to object.

Court stated: ''Under these facts we must

assume that the trial court, in an ex parte

communication, had requested the State to

As this

19

R

D

prepare the proposed order." Rose at 320.

This Court must reverse and remand.

(Initial Brief of Appellant (1992) at 27). Further, M r . Swafford

argued that the State and the judge engaged in parte

communication and that I1[t]his undisclosed ex parte communication

must void the prior proceedings, and warrants consideration of

the merits of M r . Swaffordls claims. p ose v. State, 601 So. 2d

1181 (Fla. 1992)" (Initial Brief of Appellant (1992) at 20, 21).

In advancing its argument that Mr. Swafford has somehow

shifted his position, the State "takes out of context" an

argument M r . Swafford's counsel made at the limited hearing below

(Supplemental Answer at 18, 19). The State completely ignores

the vigorous argument that M r . Swafford's counsel made at the

limited hearing maintaining that Mr. Swaffordls case was directly

on point with Rose (PC-R2. 1741-48). In fact, the presiding

judge concluded that the factual circumstances in M r . Swafford

case was "very similarll to the factual circumstances in Rose.

Further, it may be said that Mr. Swaffordls case is even stronger

than Rose in that ex parte communication need not be assumed

because the trial court made a factual finding that ex parte

communication in fact took place (PC-R2. 1777-79).

All the controlling facts in Rose were also found in Mr.

Swaffordls case. At the limited evidentiary hearing, it was

established that the State filed a response to Mr. Swafford's

1990 3.850 motion agreeing that an evidentiary hearing was

required (PR-R2. 1570-71, 1574) (Also see PC-R1. 367). The court

found that subsequently to the State filing it's response, Judge

20

b

0

a

c

c

Hammond Ithad directed that his clerk call the Attorney's

General's office and get a proposed order'' (PC-R2. 1778-79). The

court also found that Judge Hammond's law clerk contacted the

Attorney General's office and in an ex parte communication

requested that the State prepare a proposed order (PC-R2 1778).

The court further found that the State submitted this proposed

order which was adopted in it's entirety by the t r i a l judge

denying all relief without giving Mr. Swafford's an opportunity

to review and make objections (Pc-R2 1777-79).

While conceding that there was ex parte communication during

Mr. Swafford's 1990 3.850 proceedings and that these

communications were not disclosed by either the judge or the

State (Supplemental Answer at 19-20), the State nonetheless

argues that Mr. Swafford is not entitled to relief because there

was no 'Iintentt1 to keep Mr. Swafford's counsel in the dark.

However, neither Rose nor Huff support this strange argument the

in order to be improper ex parte communication must be

inter~tional.~ This Court has addressed the issue of the

of the party who engages e~ parte communication in Rose:

No matter how pure the intent of the party

who engages in such contacts, without the

benefit of a reply, a judge is placed in the

position of possibly receiving inaccurate

information or being unduly swayed by

unrebutted remarks about the other side's

case. The other party should not have to

bear the risk of factual oversights or

inadvertent negative impressions that might

4Even stranger is - ex psrte communication

Swafford's counsel was

the notion that two people engaging

would not know and intend that Mr.

not included in the conversation.

21

in an

c

easily be corrected by the chance to present

counter arguments.

Rose v. $tatg , 601 So. 2d 1181 (Fla. 1992)(emphasis added).

Specifically, the State has created a ''pass the buck"

argument in which it maintains that the State did not informed

Mr. Swafford's counsel because it assumed that Judge Hammond's

law clerk would and "Judge Hammond had no reason to disclose the

contact because he was unaware [that] CCR was not in the

information 1 0 0 ~ ~ ~ (Supplemental Answer at 19).

In advancing this argument, the State completely ignores the

court's factual finding that Judge Hammond had directed his law