Supreme Court of Florida

____________

No. SC01-1619

____________

Appellant/Cross-Appellee,

vs.

Appellee/Cross-Appellant.

[October 9, 2003]

PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death and an active death

warrant, appeals an order of the circuit court denying in part his successive motion

for postconviction relief under Florida Rule of Criminal Procedure 3.850. The

State cross-appeals the circuit court's order granting Tompkins a new penalty

phase based on evidence that the trial court directed the State to prepare the

sentencing order in an ex parte communication after the trial court imposed the

1. Tompkins filed this successive motion after a death warrant was signed

and the warrant was stayed by the trial court after the trial court vacated the death

sentence and granted Tompkins a new penalty phase.

-2-

reasons that follow, we affirm the portion of the trial court's order denying

Tompkins' motion for postconviction relief and reverse the portion of the trial

court's order granting a new penalty phase.

In 1985, Tompkins was convicted of the first-degree murder of Lisa Decarr

and sentenced to death on the recommendation of a unanimous jury. See

Tompkins v. State, 502 So. 2d 415 (Fla. 1986). This Court's opinion on direct

appeal sets forth the following facts:

The victim, Lisa DeCarr, aged 15, disappeared from her home

in Tampa on March 24, 1983. In June 1984, the victim's skeletal

remains were found in a shallow grave under the house along with her

pink bathrobe and jewelry. Based upon a ligature (apparently the sash

of her bathrobe) that was found tied tightly around her neck bones, the

medical examiner determined that Lisa had been strangled to death. In

September 1984, Wayne Tompkins, the victim's mother's boyfriend,

was charged with the murder.

At trial, the state's three key witnesses testified as follows.

Barbara DeCarr, the victim's mother, testified that she left the house on

the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa

alone in the house. Lisa was dressed in her pink bathrobe. Barbara

met Wayne Tompkins at his mother's house a few blocks away.

Some time that morning, she sent Tompkins back to her house to get

2. The aggravating circumstances found by the trial court were: (1) the

previous conviction of felonies involving the use or threat of violence to the person;

-3-

some newspapers for packing. When Tompkins returned, he told

Barbara that Lisa was watching television in her robe. Tompkins then

left his mother's house again, and Barbara did not see or speak to him

again until approximately 3 o'clock that afternoon. At that time,

Tompkins told Barbara that Lisa had run away. He said the last time

he saw Lisa, she was going to the store and was wearing jeans and a

blouse. Barbara returned to the Osborne Street house where she

found Lisa's pocketbook and robe missing but not the clothes

described by Tompkins. Barbara then called the police.

The state's next witness, Kathy Stevens, a close friend of the

victim, testified that she had gone to Lisa DeCarr's house at

approximately 9 a.m. on the morning of March 24, 1983. After

hearing a loud crash, Stevens opened the front door and saw Lisa on

the couch struggling and hitting Tompkins who was on top of her

attempting to remove her clothing. Lisa asked her to call the police.

At that point, Stevens left the house but did not call the police. When

Stevens returned later to retrieve her purse, Tompkins answered the

door and told her that Lisa had left with her mother. Stevens also

testified that Tompkins had made sexual advances towards Lisa on

two prior occasions.

Kenneth Turco, the final key state's witness, testified that

Tompkins confided details of the murder to him while they were

cellmates in June 1985. Turco testified that Tompkins told him that

Lisa was on the sofa when he returned to the house to get some

newspapers for packing. When Tompkins tried to force himself on

her, Lisa kicked him in the groin. Tompkins then strangled her and

buried her under the house along with her pocketbook and some

clothing (jeans and a top) to make it appear as if she had run away.

Id. at 417-18.

The jury recommended death by a vote of twelve to zero. After finding three

(2) that the murder was committed while the defendant was engaged in an attempt

to commit sexual battery; and (3) that the murder was especially heinous, atrocious,

or cruel ("HAC").

3. The one mitigating circumstance the trial court found was that Tompkins

was twenty-six at the time of the murder.

4. With respect to the guilt phase, Tompkins argued: (1) the trial court erred

in admitting his confession through Turco's testimony; (2) the trial court erred in

limiting his cross-examination of State's witnesses Barbara DeCarr and Detective

Burke; (3) the trial court erred in permitting the State to elicit certain testimony from

Barbara DeCarr on redirect examination; and (4) death-qualified juries are

unconstitutional.

5. As to the penalty phase, Tompkins argued: (1) the trial court erred in

allowing two police officers to testify as to details of previous crimes he had

committed; (2) the trial court erred in finding the aggravating circumstance of

previous conviction of felonies involving the use or threat of violence; (3) the trial

court erred in finding the aggravating circumstance that the murder was committed

during an attempted sexual battery; (4) the trial court erred in finding HAC; (5) the

trial court did not give adequate consideration to the evidence of nonstatutory

mitigating circumstances; and (6) the trial judge did not make a reasoned

independent judgment of whether or not the death penalty should be imposed by

giving undue weight to the jury's recommendation of death.

-4-

imposed a sentence of death.

and affirmed both the conviction and death sentence. See id. at 421.

Tompkins' first motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850 included nineteen claims. See Tompkins v. Dugger, 549

6. These claims were: (1) Florida Rule of Criminal Procedure 3.851 denies

equal protection and access to the courts by empowering the Governor to shorten

the two-year filing deadline of rule 3.850; (2) the trial court erred in excluding

hearsay testimony offered to show that the victim was alive after the time of the

alleged murder; (3) the proceedings were rendered fundamentally unfair when

Tompkins' court-appointed counsel withdrew to accept a position with the

prosecutor's office; (4) Tompkins' right to counsel was violated when a jailhouse

informant (Turco) was placed in his cell to elicit inculpatory statements; (5) the

conviction and sentence resulted from an unreliable in-court identification; (6) the

State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963), including (a) jail records showing Tompkins was given Sinequan, (b)

information suggesting that Turco was a State agent, and (c) records indicating that

the victim had been seen by schoolmates after she was allegedly killed; (7)

Tompkins' trial counsel was ineffective during the guilt phase by (a) failing to

adequately investigate and prepare the issue regarding who was the last person to

see the victim alive, (b) failing to present evidence that informant Turco had access

to police reports that Tompkins had in his cell, (c) failing to object to hearsay

testimony by the medical examiner as to the victim's identity, (d) failing to ensure

compliance with the witness sequestration rule, and (e) failing to litigate the issues

raised in claims 2, 3, 4 and 5; (8) Tompkins' trial counsel was ineffective for failing

to provide for an adequate evaluation by a mental health expert; (9) Tompkins'

counsel was ineffective during the penalty phase for (a) failing to adequately

investigate and prepare mitigation evidence, (b) failing to limit damage caused by

the introduction of prior sexual batteries, and (c) failing to challenge jury

instructions and failing to object to other errors related to claims 11 and 16; (10) the

State knowingly used false and misleading testimony of Detective Burke and the

medical examiner; (11) the State made an improper "golden rule" argument; (12) the

trial court's finding of HAC was in violation of Maynard v. Cartwright, 486 U.S.

356 (1988); (13) there was an impermissible burden shift; (14) the jury was

improperly instructed that sympathy toward the defendant was an improper

consideration; (15) the trial court considered an unconstitutional aggravating

circumstance; (16) the death sentence was founded upon impermissible "victim

impact" evidence; (17) there was a violation of Caldwell v. Mississippi, 472 U.S.

320 (1985); (18) the death sentence was based on misinformation; and (19) there

were improper jury influences.

-5-

-6-

presented evidence primarily related to his Brady and ineffective assistance of

counsel claims, the trial court denied relief. See id. This Court affirmed the trial

court's denial of relief on appeal. See id. With respect to Tompkins' Brady claims,

we stated:

Tompkins claims that the state should have provided defense counsel

with jail records showing that Tompkins was given Sinequan while in

jail; school records indicating that Lisa had been seen by schoolmates

after she allegedly was killed; and information suggesting that

Tompkins' cell mate, who had testified that Tompkins confessed, was

a state agent.

The record clearly reflects that counsel knew that Lisa

reportedly was seen after the time established for her murder. Counsel

attempted to introduce this very evidence through the hearsay

testimony of Lisa's mother. We also agree that counsel's lack of

knowledge that Tompkins asked for medication while in custody had

no prejudicial effect on the outcome of the trial. Finally, we find no

evidence in the record to support any theory that Tompkins' cell mate

was a state agent. Accordingly, we affirm the trial court on the Brady

issue.

Id.

As to Tompkins' claims of ineffective assistance of trial counsel, this Court

concluded that counsel was not ineffective during the guilt phase but was deficient

in failing to investigate and present evidence of mitigation in the penalty phase. See

id. at 1373. However, we agreed with the trial court that this mitigating evidence

would not "have affected the penalty in light of the crime and the nature of the

aggravating circumstances." Id.

7. These claims were: (1) the penalty phase jury instruction impermissibly

shifted the burden to the defendant to show that the death penalty was

inappropriate; (2) the jury was improperly instructed that sympathy toward the

defendant was an improper consideration; (3) Maynard v. Cartwright, 486 U.S. 356

(1988), required reversal of the trial court's finding of HAC; (4) the State made an

improper "golden rule" argument; (5) Tompkins' right to counsel was denied when

the trial court erred in excluding hearsay testimony offered to show that the victim

was alive after the time of the alleged murder; (6) there was a violation of Booth v.

Maryland, 482 U.S. 496 (1987); (7) appellate counsel was ineffective for failing to

object to photographs of the victim's skeletal remains; (8) the death sentence

impermissibly rested on the automatic aggravator of a prior felony conviction; and

(9) there was a violation of Caldwell v. Mississippi, 472 U.S. 320 (1985).

8. These issues were: (1) whether Tompkins was denied the right to present

a defense and confront witnesses; (2) whether the state withheld exculpatory

evidence in violation of Brady; (3) whether appellate counsel was ineffective; (4)

whether Tompkins' conviction and sentence resulted from an unreliable in-court

identification; (5) whether the judge and jury were misinformed; (6) whether there

was improper argument and a jury instruction error during the penalty phase; and

(7) whether the district court erred in failing to order the grand jury proceedings

transcribed. See Tompkins, 193 F.3d at 1331 n.1.

-7-

Tompkins also filed a petition for a writ of habeas corpus in this Court,

See id.

Subsequently, Tompkins filed a petition for a writ of habeas corpus in the

federal district court. See Tompkins v. Moore, 193 F.3d 1327, 1329 (11th Cir.

1999). The federal district court denied relief and Tompkins appealed to the

Eleventh Circuit Court of Appeals. See id. The Eleventh Circuit affirmed without

9. Under Giglio, a prosecutor has a duty to correct testimony he or she

knows to be false. See 405 U.S. at 153-54. In order to establish a Giglio violation,

a defendant must show that (1) the testimony was false; (2) the prosecutor knew of

the false testimony; and (3) the testimony was material. See Routly v. State, 590

So. 2d 397, 400 (Fla. 1991).

-8-

The Eleventh Circuit also rejected Tompkins' argument that trial counsel was

ineffective during the guilt phase for failing to introduce several pieces of evidence,

including witness Wendy Chancey's testimony that she had seen Lisa alive after the

date the murder was alleged to have occurred. See id. at 1334-35 & n.3. With

respect to Tompkins' claims of counsel's ineffectiveness during the penalty phase,

the Eleventh Circuit concluded that the "weight of [the] aggravating circumstances

overwhelm[ed] the mitigating circumstance evidence that was and could have been

presented." Id. at 1339. Lastly, the Eleventh Circuit addressed Tompkins'

argument that the State knowingly presented false testimony of Stevens, Turco, and

The Eleventh Circuit rejected the claims as to Stevens and Turco outright, agreeing

with the district court that Tompkins' "contentions are palpably without merit." Id.

at 1342 n.14.

With respect to Tompkins' Giglio claim regarding the medical examiner's

testimony that dental records identified the skeleton as that of Lisa DeCarr, the

Eleventh Circuit held that even if this had been false testimony and the State knew it

10. Two death warrants signed in 1989 by Governor Martinez were stayed

because Tompkins' initial postconviction motions were still being litigated.

11. Huff v. State, 622 So. 2d 982 (Fla. 1993).

-9-

was false, Tompkins' claim would still fail to meet the materiality element of the

Giglio test. See id. at 1341. The Eleventh Circuit noted that there was

"overwhelming" evidence that the skeletal remains belonged to Lisa and found

Tompkins' argument that "'there was very little evidence of the identity of the

deceased' . . . preposterous." Id. at 1341-42.

which resulted in Tompkins filing a second postconviction motion in state court.

required only on Tompkins' claim that the sentencing judge, Harry Lee Coe, erred

in failing to (1) independently weigh the aggravating and mitigating circumstances,

and (2) disclose that the State had prepared the sentencing order. After hearing

several witnesses presented by Tompkins and argument from both Tompkins and

the State, the trial court found that these errors entitled Tompkins to a new penalty

phase.

The day after the evidentiary hearing, the trial court granted Tompkins'

motion for a stay of execution. In a subsequent order on Tompkins'

12. These documents include: (1) a June 8, 1984, police report; (2) a legible

copy of a March 24, 1983, police report; (3) a July 28, 1983, police report; (4)

handwritten lead sheets prepared by Detective Burke; (5) a May 3, 1984, report

concerning interviews with W.H. Graham; (6) an August 18, 1982, report; (7) a

December 27, 1983, letter from the State Attorney; (8) a May 21, 1984, report; (9)

records showing that "in June 1983, W.H. Graham was being investigated for

-10-

postconviction motion, the trial court provided written findings supporting the

denial of all of Tompkins' other claims and the granting of the new penalty phase.

The trial court also denied Tompkins' motions for DNA testing and to compel the

disclosure of public records.

Tompkins now appeals, raising four issues: (1) whether the trial court erred

in denying his Brady claims without an evidentiary hearing; (2) whether the trial

court erred in denying his motion for DNA testing; (3) whether the State's failure to

preserve evidence violated his due process rights; and (4) whether the trial court

erred in denying his motion to compel the production of public records. The State

cross-appeals the trial court's order granting a new penalty phase.

In Tompkins' first issue on appeal, he argues that the trial court erred in

summarily denying his claim that the State withheld evidence in violation of Brady.

Specifically, Tompkins contends that the State withheld several police reports and

raping one of the girls who worked at the 'Naked City' on June 24th"; (10) a June

14, 1983, police report of a phone interview with Lori Lite; (11) a June 9, 1984,

report; (12) a May 9, 1984, report; (13) a list of questions to be asked of Detective

Burke during trial; and (14) undisclosed impeachment evidence regarding witnesses

Stevens and Turco.

-11-

statements by individuals that tend to contradict the testimony of Barbara DeCarr,

Stevens, and Turco; (2) information about other possible suspects; (3) information

about a police investigation in the disappearance of Jessie Albach, one of Lisa

DeCarr's friends, which was being investigated in conjunction with the DeCarr case;

and (4) information related to the credibility of witnesses Stevens and Turco.

Tompkins asserts that he was entitled to an evidentiary hearing and that the trial

court erred in denying his Brady claims without holding a hearing.

In a case such as this, where the defendant files a successive motion for

postconviction relief, the trial court may dismiss the motion if it "fails to allege new

or different grounds for relief and the prior determination was on the merits or, if

new and different grounds are alleged, the judge finds that the failure of the movant

or the attorney to assert those grounds in a prior motion constituted an abuse of

procedure governed by these rules." Fla. R. Crim. P. 3.850(f). However, if the

trial court does not dismiss the successive motion for the above stated reasons, the

trial court must hold an evidentiary hearing unless "the motion, files and records in

the case conclusively show that the movant is entitled to no relief." Fla. R. Crim.

-12-

P. 3.850(d).

When the trial court denies postconviction relief without conducting an

evidentiary hearing, "this Court must accept [the defendant's] factual allegations as

true to the extent they are not refuted by the record." Rose v. State, 774 So. 2d

629, 632 (Fla. 2000); see also Valle v. State, 705 So. 2d 1331, 1333 (Fla. 1997)

("Under rule 3.850, a movant is entitled to an evidentiary hearing unless the motion

and record conclusively show that the movant is entitled to no relief. Thus we must

treat the allegations as true except to the extent they are rebutted conclusively by the

record.") (citation omitted). However, the defendant has the burden of establishing

a legally sufficient claim. See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000).

If the claim is legally sufficient, this Court must then determine whether the claim is

refuted by the record. See id.

In Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the United States

Supreme Court enunciated the three components of a true Brady violation as

follows:

[1] The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that

evidence must have been suppressed by the State, either willfully or

inadvertently; and [3] prejudice must have ensued.

See also Cardona v. State, 826 So. 2d 968, 973 (Fla. 2002) (evaluating a Brady

-13-

claim under the three prong test set forth in Strickler); Way v. State, 760 So. 2d

903, 910 (Fla. 2000) (same). Under the prejudice prong, the defendant must show

that the suppressed evidence is material. See Strickler, 527 U.S. at 282.

"[E]vidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different. A 'reasonable probability' is a probability sufficient to undermine

confidence in the outcome." Way, 760 So. 2d at 913 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)) (alteration in original); see also Strickler, 527

U.S. at 290. In determining materiality, the "cumulative effect of the suppressed

evidence must be considered." Cardona, 826 So. 2d at 973; see also Way, 760 So.

2d at 913. With these principles in mind, we now address Tompkins' specific

allegations.

First, we agree with the trial court that Tompkins' claim that the State

withheld information related to the credibility of witnesses Stevens and

Turco—specifically, that Stevens served time in jail for committing perjury in 1986

and that Turco pled guilty to extortion in 1995—was insufficiently pled. Tompkins

summarily states that these undisclosed facts about Stevens and Turco could have

been used to impeach Stevens' and Turco's credibility at trial. However, he

presents no explanation for how he could have accomplished this given that these

-14-

events occurred after his trial. Further, Tompkins fails to allege any basis to

establish that Stevens or Turco perjured themselves at his trial. Accordingly, we

find no error in the trial court's summary denial of this claim.

We also agree with the trial court's conclusion that the March 24, 1983,

police report was not withheld by the State. As the trial court noted, "[d]uring

argument, defense counsel conceded that he had obtained a copy of . . . [the

March 24] report in 1989, however, he was unable to read it." Because defense

counsel knew of the report and could have requested a legible copy, a Brady

violation is conclusively refuted. Cf. Way, 760 So. 2d at 911-12 (noting that

evidence is not "suppressed" where the defendant was aware of the exculpatory

information).

As to the list of questions to be asked of Detective Burke and the Jessie

Albach files, these documents fail to meet the first prong of Brady because they do

not contain information that is favorable to Tompkins. The few answers indicated

on the question sheet are irrelevant to Burke's substantive testimony. Contrary to

Tompkins' assertions, the alleged nondisclosure of the list of questions in this case

is not analogous to the situation presented in Rogers v. State, 782 So. 2d 373, 384

(Fla. 2001), where this Court held that a cassette tape, which revealed coaching by

the prosecutor and conflicting accounts of the witness's testimony, was favorable

-15-

to the defendant. Unlike the tape at issue in Rogers, the list of questions in this

case does not show any attempt by the prosecutor to direct Burke's testimony.

Nor does the list indicate any testimony contrary to that presented at trial.

We also reject Tompkins' argument that because the Albach and DeCarr

cases were investigated together and there are statements regarding Lisa in the

Albach reports, these reports constitute Brady material. In Rogers, this Court held

that police reports generated in a joint law enforcement investigation of robberies

similar to the one for which the defendant was arrested were favorable to the

defendant. See id. at 380-82. This Court concluded that the police reports were

favorable to Rogers because they could have been used to show that a person

other than Rogers was involved in the robbery with the codefendant and, therefore,

the reports could have been used to impeach the codefendant's testimony at trial.

See id. at 382.

The Albach documents contain statements regarding Lisa DeCarr and

provide information about a W.H. Graham, a person who Tompkins apparently

claims is another likely suspect. However, other than the fact that Jessie and Lisa

were friends, there is no indication in these reports that Lisa ever had contact with

W.H. Graham. Further, the statements about Lisa are general--that Lisa was

missing and was friends with Jessie. Thus, these files do not provide the same type

13. The fact that the Albach files indicate that W.H. Graham had a car that

fit the description of the car that witness Wendy Chancey stated she saw Lisa get

into on the day she disappeared does not alter our conclusion. Chancey did not

testify at trial and trial counsel was not found ineffective by this Court or the

Eleventh Circuit Court of Appeals for failing to call Chancey to testify. See

Tompkins, 549 So. 2d at 1372; Tompkins, 193 F.3d at 1333. Thus, even if we

were to assume that this limited piece of information in the Albach files is favorable

to Tompkins, he has failed to demonstrate prejudice.

14. The report states in pertinent part:

SWEENY advised that it was very strange the explanation given

surrounding LISA'S disappearance. She advised that she was told

that LISA had come home, found WAYNE sitting at the kitchen table

with her mother, and asked "what the hell is he doing here!" Her

mother, BARBARA, explained that he had no place to go and that she

was going to let him move in with them, until he could get on his feet.

-16-

of information that this Court concluded was favorable to the defendant in

As to the remaining documents, we conclude that even if the information they

contain could be said to be favorable to Tompkins, the record in this case

conclusively demonstrates that the documents are not material because they cannot

"reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict." Cardona, 826 So. 2d at 982 (quoting Way, 760 So. 2d

at 913). Tompkins argues that the information related to police by Maureen

Sweeny in the June 8, 1984, police report supports Wendy Chancey's version of

At that point LISA ran out the back door. According to MAUREEN

[SWEENY], it was very unusual for LISA to be outside without her

makeup and supposedly she had been outside and then come inside

and then gone out again without her makeup. LISA's brother BILLY

left the house to go find her and came back to take care of JAMIE.

SWEENY advised that she had been told that WAYNE had gotten up

to chase LISA to try and catch her but she was gone, by the time he

got outside. SWEENY advised that LISA had left her purse

containing her makeup, etc. on the table.

15. With respect to the Willis statement, the report states in pertinent part:

"That is when WAYNE and BARBARA told MIKE the story about the last time

-17-

argument for several reasons. First, as previously noted, Chancey did not testify at

trial. Second, although Tompkins appears to assume that Sweeny's information

was gained from Barbara DeCarr and Tompkins, the report does not indicate who

told Sweeny about the version of the events she gave to the police. Third, the fact

that Lisa DeCarr's brother and boyfriend went to look for her does not shed any

new light on her disappearance because it is clear from the record that Lisa was

originally classified as a runaway. Lastly, other than conclusory statements,

Tompkins provides no evidence or argument to support his claims of an unreliable

investigation by police. Therefore, the only part of the June 8, 1984, report that is

even conceivably favorable to Tompkins is a statement made by Sweeny's fiance,

Mike Glen Willis, that includes an account of the events on the day Lisa

they saw LISA. The day they last saw LISA was the day WAYNE moved back

into the house on Osborne. She became upset because of the fact that she [sic]

was moving back and stormed out of the house."

-18-

this one piece of undisclosed inconsistent information, even taken together with any

other favorable evidence the State may have failed to disclose to Tompkins, does

not rise to the level necessary to undermine our confidence in the verdict in this

case.

Tompkins also argues that a July 28, 1983, report contains an account of a

phone call from Barbara DeCarr that contradicts her trial testimony. We disagree.

In the phone call, Ms. DeCarr stated that she reported that Lisa ran away on March

24, 1983, and that she thought Lisa might be with Jessie. At trial, Ms. DeCarr never

stated that she did not, at first, believe that Lisa ran away. In fact, Ms. DeCarr

testified that after Tompkins told her Lisa ran away, she called the police. She also

testified that she contacted Child Search of Florida and that prior to May 1984 she

refused to suspect that Tompkins was involved in Lisa's disappearance.

Accordingly, the record conclusively refutes Tompkins' claim that the July 28

report is material evidence because the report would not have impeached Ms.

DeCarr's trial testimony. Compare Cardona, 826 So. 2d at 981 (concluding that

withheld impeachment evidence regarding the State's key witness was of such a

degree that it "could reasonably be taken to put the whole case in such a different

-19-

light as to undermine the confidence in the verdict").

Finally, we conclude that as to Burke's lead sheets, prejudice is conclusively

refuted by the record. Tompkins contends that the lead sheets show that Burke

spoke with Lisa's boyfriend, Junior Davis, and had Tompkins known this he would

have ascertained whether Davis told police about meeting Stevens at the corner

store on the day of Lisa's disappearance. Tompkins also asserts that the lead

sheets indicate the true identity of a Bob McKelvin, who allegedly attempted to

solicit Lisa. However, the record shows that defense counsel was aware of both

Junior Davis and Bob McKelvin during trial. Defense counsel asked Stevens on

cross-examination about her encounter with Davis at the corner store. Defense

counsel also questioned both Detective Burke and Barbara DeCarr about

McKelvin. Detective Burke testified that he could not recall hearing the name

McKelvin but he was aware of a neighbor who made sexual advances towards Lisa.

Barbara DeCarr testified that McKelvin did proposition her daughter.

Thus, we affirm the trial court's summary denial of Tompkins' Brady claims.

Either the undisclosed documents are not Brady material because they are neither

favorable to Tompkins nor suppressed, or Tompkins has not demonstrated that he

was prejudiced by the lack of disclosure. Further, even if we were to engage in a

cumulative analysis and consider the undisclosed, favorable documents in

16. When the hair samples were tested in 1984, nothing conclusive could be

established.

17. Although the hair samples are no longer available, Tompkins contends

that DNA testing is possible on other items found at the grave site, including the

skeletal remains, robe, pajamas and miscellaneous debris.

-20-

conjunction with Tompkins' claims raised in his first motion for postconviction

relief, our conclusion as to prejudice would not change. See Way, 760 So. 2d at

915 (noting that conducting a cumulative analysis would not change the Court's

conclusion that the defendant failed to establish prejudice).

On April 10, 2001, Tompkins filed a motion for DNA testing, seeking to

have several pieces of evidence tested, including hair samples discovered with

Lisa's remains at the grave site. A hearing was held on April 11, 2001, at which

Tompkins argued that since the time this evidence was originally submitted for

testing by the State in 1984, mitochondrial DNA testing had developed and would

denied the motion at the hearing, the State revealed that it could not locate the hair

samples and Tompkins was permitted to question several witnesses regarding this

In an order dated April 12, 2001, the trial court denied Tompkins' motion,

-21-

finding that the evidence sought to be tested had been available since 1984, that

mitochondrial DNA testing had been available in judicial proceedings since 1996,

and that mitochondrial DNA testing had been used in the Thirteenth Judicial Circuit

in 1999. The trial court also found that Tompkins failed to set forth any compelling

reasons for the DNA testing and that mitochondrial DNA testing would not prove

or disprove any material issues in the case.

The trial court again denied Tompkins' request for DNA testing in its order

denying Tompkins' motion for postconviction relief and in its order denying

Tompkins' motion for rehearing. In the latter order, entered on June 15, 2001, the

trial court expanded on its reason for denying the motion for DNA testing in light of

the enactment of section 925.11, Florida Statutes (2002).

Section 925.11 requires that the trial court make the following findings after

the defendant has filed a sufficient petition and the State has responded:

1. Whether the sentenced defendant has shown that the

physical evidence that may contain DNA still exists.

2. Whether the results of DNA testing of that physical

evidence would be admissible at trial and whether there exists reliable

proof to establish that the evidence has not been materially altered and

would be admissible at a future hearing; and

3. Whether there is a reasonable probability that the

sentenced defendant would have been acquitted or would have

received a lesser sentence if the DNA evidence had been admitted at

trial.

18. This included dental identification, as well as evidence that the skeletal

remains were that of a midteen female, that jewelry identified as Lisa's was found

next to the remains, and that the remains were found wrapped in a robe identified as

belonging to Lisa.

-22-

§ 925.11(2)(f), Fla. Stat. (2002). In this case, the trial court rejected Tompkins'

claim that there is an issue of the identity of the remains, noting that the Eleventh

Circuit Court of Appeal had addressed this issue and found Tompkins' argument

that "'there was very little evidence of the identity of the deceased' . . .

preposterous." Tompkins, 193 F.3d at 1342. The trial court further found that any

samples of DNA obtained from the hairs, bone fragments, robe or pajamas would

be "unreliably contaminated due to the location of the remains and would not prove

[Tompkins'] innocence or result in a mitigation of sentence."

We agree with both of the trial court's findings. Given the evidence

remains, we conclude that even if the DNA analysis indicated a source other than

Lisa DeCarr or Tompkins, there is no reasonable probability that Tompkins would

have been acquitted or received a life sentence. See § 925.11(2)(f), Fla. Stat.

(2002); Fla. R. Crim. P. 3.853; see also King v. State, 808 So. 2d 1237, 1247-49

(Fla. 2002) (affirming trial court's denial of defendant's motion for mitochondrial

DNA testing, where trial court found that even if test showed that hair found on

-23-

victim's body did not come from victim or defendant, there was no reasonable

probability that defendant would have been acquitted or have received a life

sentence). Accordingly, we affirm the trial court's denial of Tompkins' motion for

DNA testing.

In a related claim, Tompkins argues that the trial court erred in finding that

there was no bad faith on the part of the State regarding the loss of hair samples

discovered with Lisa's remains. See Arizona v. Youngblood, 488 U.S. 51, 58

(1988) ("[U]nless a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute a denial of due

process of law."); see also King, 808 So. 2d at 1242-43 (approving trial court's

application of Youngblood in evaluating defendant's claim regarding State's

destruction of evidence). In light of our conclusion that the trial court did not err in

denying Tompkins' motion for DNA testing, we conclude that this issue is moot.

In his final issue on appeal, Tompkins argues that he has been denied

effective assistance of counsel because the trial court denied him access to public

records from the Hillsborough County Sheriff's Office, the State Attorney's Office

of the Thirteenth Judicial Circuit, the Florida Department of Law Enforcement, the

Division of Elections, the Department of Corrections, the Florida Parole

-24-

Commission, and the Board of Executive Clemency. In denying Tompkins' motion

to compel the production of records, the trial court found that Tompkins "failed to

provide sufficient specific and identifiable reasons as to the request for public

records." The trial court noted that the only issue raised at the hearing on

Tompkins' motion to compel was related to juror misconduct and that

postconviction counsel both conceded that this issue was known to "himself and

trial counsel in 1985" and "provided no explanation as to why requests were not

made until after the Governor signed the death warrant." The trial court also

expressed concern "regarding the timing of the voluminous public records

requests," finding that the requests "appear to be at best a 'fishing expedition' and

at worst a dilatory tactic."

We review the trial court's denial of Tompkins' motion to compel for an

abuse of discretion. See generally Glock v. Moore, 776 So. 2d 243, 254 (Fla.

2001) (concluding that trial court did not abuse discretion in denying defendant's

motions to compel and determining that defendant's right to public records was not

denied). In Sims v. State, 753 So. 2d 66 (Fla. 2000), we addressed the issue of

public records where the request is made after the death warrant has been signed:

The language of section 119.19 and of rule 3.852 clearly

provides for the production of public records after the governor has

signed a death warrant. However, it is equally clear that this discovery

-25-

tool is not intended to be a procedure authorizing a fishing expedition

for records unrelated to a colorable claim for postconviction relief. . . .

. . . Rule 3.852 is not intended for use by defendants as, in the

words of the trial court, "nothing more than an eleventh hour attempt

to delay the execution rather than a focused investigation into some

legitimate area of inquiry."

Id. at 70. Thus, a defendant must show how the requested records relate to a

colorable claim for postconviction relief and good cause as to why the public

records request was not made until after the death warrant was signed. See Glock,

776 So. 2d at 254; Bryan v. State, 748 So. 2d 1003, 1006 (Fla. 1999).

Tompkins argues that he could not have made this public records request

earlier because at the time this Court issued its decision in Buenoano v. State, 708

So. 2d 941 (Fla. 1998), making it clear that any such claim will be barred if counsel

fails to exercise due diligence, Tompkins was litigating in federal court and then was

precluded by the adoption of Florida Rule of Criminal Procedure 3.852 from filing

his request before his death warrant was signed. This argument fails for three

reasons.

First, although a request for public records under rule 3.852(h)(3) is

contingent upon the signing of a death warrant, rule 3.852(i) "allows collateral

counsel to obtain additional records at any time if collateral counsel can establish

that a diligent search of the records repository has been made and 'the additional

19. We do not address Tompkins' requests to the Hillsborough County

Sheriff's Office, the Department of Corrections, the Florida Parole Commission

and the Board of Executive Clemency in further detail because Tompkins has failed

to present any argument as to how the trial court erred in denying the motion to

compel with respect to these agencies. See Shere v. State, 742 So. 2d 215, 217 n.6

-26-

public records are either relevant to the subject matter of the postconviction

proceeding or are reasonably calculated to lead to the discovery of admissible

evidence.'" Sims, 753 So. 2d at 70-71 (quoting rule 3.852(i)(1)). Accordingly,

Tompkins was not required to wait until the death warrant was signed to make an

additional public records request, provided he could have made the required

showing under rule 3.852(i).

Second, Tompkins' request for information from the Division of Elections

related to Judge Coe's campaign contributions could have been made years ago,

and Tompkins has not indicated any good cause as to why he did not make this

request until after the death warrant was signed. Similarly, Tompkins' request for

juror criminal records could also have been made years ago. As noted by the trial

court, counsel conceded that this issue was known to trial counsel in 1985 and

provided no explanation as to why the requests were not made until after the death

warrant was signed. Accordingly, we conclude that the trial court did not abuse its

discretion in denying Tompkins' motion to compel the production of public

(Fla. 1999) (stating that where defendant did not present any argument or allege on

what grounds trial court erred in denying claims in his postconviction motion,

claims were "insufficiently presented for review"); Coolen v. State, 696 So. 2d 738,

742 n.2 (Fla. 1997) (explaining that the defendant's "failure to fully brief and argue"

specific points on appeal "constitutes a waiver of these claims").

20. The trial judge at this successive rule 3.850 proceeding was Judge Perry.

The trial judge at the trial and for the initial postconviction motion was Judge Coe,

who is now deceased.

-27-

On cross appeal, the State seeks reversal of the trial court's decision to grant

the trial court stated:

The Court finds that testimony demonstrates that there was an ex parte

communication between the sentencing judge and the State in this

case. The Court finds that the limitation of argument that the Court

imposed for the State is not a sufficient "weighing" by the trial judge.

The Court finds that the failure to independently weigh aggravating and

mitigating circumstances in this case entitles Defendant to relief.

State v. Tompkins, No. 84-10538, order at 10 (Fla. 13th Cir. Ct. order filed Apr.

20, 2001). Based on our review of the record of the trial, direct appeal, and

postconviction proceedings in the state and federal courts, we conclude that the

trial court erred in granting Tompkins a new penalty phase trial.

For the purpose of analyzing the trial court's ruling, we have assumed,

without deciding, that there was competent, substantial evidence presented at the

21. At the evidentiary hearing, the prosecutor testified that he had no

specific recollection of being called by Judge Coe's office. The prosecutor

testified that the notes in his office's records indicated that someone from Judge

Coe's office called him shortly after the jury returned its recommendation of death.

The prosecutor stated that he assumed the call was to prepare the sentencing order

because that would not have been unusual for Judge Coe to do.

22. There was no prejudice, regardless of whether this issue is analyzed as

newly discovered evidence in accord with Fotopolous v. State, 838 So. 2d 1122,

1133 (Fla. 2002) (newly discovered evidence must be such that new penalty phase

probably will result in life sentence), as the State asserts it should be, or in accord

with Cardona v. State, 826 So. 2d 968, 982 (Fla. 2002) (favorable evidence could

be reasonably taken to put the whole case in such a different light as to undermine

confidence in the outcome), as Tompkins asserts it should be.

-28-

evidentiary hearing for the trial court to conclude that Judge Coe either himself

communicated or had his assistant communicate to the prosecutor that the

prosecutor was to prepare the written sentencing order, and that the prosecutor did

However, we conclude that under the circumstances of this case, which we here set

out in detail, Tompkins was not prejudiced by the prosecutor's assumed

Our analysis begins with the return of the jury in the 1985 penalty phase trial.

Upon receiving the jury's recommendation of death by a 12-0 vote, the court

immediately pronounced sentence:

THE COURT: Okay. Record the verdict. Discharge the jury.

Approach the bench. No, I mean out there. Bring the defendant

23. See Spencer v. State, 615 So. 2d 688, 691-92 (Fla. 1993) (setting forth

exact procedure to be used in sentencing phase proceedings, including requirement

that after hearing any additional evidence presented by the State or the defendant,

the trial court "recess the proceeding to consider the appropriate sentence");

Grossman v. State, 525 So. 2d 833, 841 (Fla. 1988) (holding that "all written orders

imposing a death sentence be prepared prior to the oral pronouncement of

sentencing for filing concurrent with the pronouncement").

-29-

forward. Any further comments?

MR. HERNANDEZ [DEFENSE COUNSEL]: No, your honor.

THE COURT: Okay. I will accept the jury’s finding of guilt and its

recommendation of the death penalty. Make an adjudication of guilt.

Can you or your client show cause why sentence should not be

pronounced at this time?

MR. HERNANDEZ: No, your honor.

THE COURT: It’s the judgment, order, and sentence of this Court

that the defendant be sentenced to death in the electric chair.

Although we changed this procedure after the penalty phase in this 1985

pronouncement of a death sentence at the time of the jury's return with a

recommendation of death was not reversible error. See Randolph v. State, 463 So.

2d 186, 192 (Fla. 1984). Moreover, if Tompkins was going to pursue an issue with

respect to Judge Coe's having pronounced the sentence upon the return of the

jury's advisory sentence, Tompkins had to do so in his direct appeal. This issue is

therefore not presently before this Court. However, the above portion of the

record establishes what has been a known fact since 1985—that Judge Coe had

considered and decided that death was the appropriate sentence before the written

-30-

sentencing order was entered.

The sentencing order which was thereafter entered set out three aggravating

circumstances: (1) Tompkins was previously convicted of felonies involving the

use or threat of violence to a person; (2) the murder was committed while

Tompkins was engaged in an attempt to commit sexual battery; and (3) the murder

was especially heinous, atrocious, or cruel (HAC). The only mitigating

circumstance provided in the order was Tompkins' age (twenty-six) at the time of

the murder.

On direct appeal, this Court found that competent, substantial evidence in the

record supported those three aggravating factors. Importantly, for present

purposes, this Court stated the following:

Appellant next contends that the trial court did not give

adequate consideration to the evidence of nonstatutory mitigating

circumstances. With respect to nonstatutory mitigating circumstances,

the trial court stated that it found "NONE, notwithstanding testimony

to the effect that the defendant was a good family member and good

employee." We conclude that the judge did consider the evidence but

found that it did not rise to a sufficient level to be weighed as a

mitigating circumstance.

Appellant's final claim of error is that the trial judge did not

make a reasoned independent judgment of whether or not the death

penalty should be imposed. Appellant bases this argument on the trial

judge's written order stating that the jury's death recommendation is

"entitled to great weight." We reject this claim. The trial court

expressly stated: "After considering only the evidence before the jury,

the court finds that the aforesaid statutory aggravating circumstances

-31-

clearly outweigh the statutory mitigating circumstance." There is

nothing in the court's order or elsewhere in the record to suggest that

the trial court imposed the death penalty because it felt compelled to

do so by the jury's recommendation.

Tompkins, 502 So. 2d at 421 (emphasis supplied).

This statement shows that on direct appeal this Court conducted a detailed

record review of the trial court's order. Based on that review, this Court concluded

that the record supported the finding of three very weighty aggravators and the

finding of only one weak mitigator. It remains evident that the three weighty

aggravators outweigh the one weak mitigator of age. Thus, based upon the record

in this case through direct appeal, we conclude that the issue concerning the

preparation of the sentencing order is not a substantive issue of whether the

aggravators outweighed the mitigators, but rather is a procedural issue of whether

Judge Coe himself conducted the requisite weighing of aggravators and mitigators

at the time the sentencing order was prepared.

Because the relevant concern underlying the requirement that the trial judge

prepare the sentencing order is assuring that the judge independently weigh the

aggravating and mitigating circumstances, see Patterson v. State, 513 So. 2d 1257,

1261 (Fla. 1987), we have determined that this procedural issue was resolved

during the pendency of this case. Following this Court's decision affirming

-32-

Tompkins' conviction and death sentence on direct appeal, Tompkins filed his

initial rule 3.850 motion for postconviction relief, and Judge Coe held an evidentiary

hearing on the motion on May 19 and 20, 1989. At the hearing, Tompkins argued

that his trial counsel was ineffective in failing to present additional mitigating

evidence during the penalty phase at trial. See Tompkins v. Dugger, 549 So. 2d

1370, 1372 (Fla. 1989). Following that evidentiary hearing, Judge Coe denied relief.

He expressly found that the additional mitigators asserted by Tompkins "would not

have affected the penalty in light of the crime and the nature of the aggravating

circumstances." Id. at 1373. Judge Coe reasoned that the additional mitigating

evidence did not create "a reasonable probability that but for the counsel's errors,

the results in the sentencing phase would have been different, given the 12/0 verdict,

given the egregious nature of the offense, given the two prior rapes." Record at

470, Tompkins v. Dugger (No. 74235). Judge Coe stated, "I don't think there was

a reasonable possibility, given proper investigation, preparation and presentation,

that the outcome would have been different, nor do I think this lack undermined any

confidence in the outcome." Id.

This Court reviewed and affirmed Judge Coe's postconviction decision, and

expressly held:

In the second part of the ineffectiveness claim, Tompkins

-33-

asserts that counsel failed to investigate and present evidence of

mitigation in the penalty phase. The trial court found, and we again

agree, that counsel was deficient in this regard. However, the trial

court also found that the mitigating evidence overlooked by counsel

would not have changed the outcome, and therefore did not

demonstrate prejudice. Strickland v. Washington, 466 U.S. 687

(1984).

The trial judge, when imposing the death penalty, found three

aggravating circumstances: previous conviction of a violent felony;

murder committed during an attempt to commit a sexual battery; and

that the murder was especially heinous, atrocious, or cruel. The

previous felony convictions consisted of two prior rapes at knife

point. Tompkins alleges that there were extenuating circumstances

which would mitigate this aggravating factor. He further submits that

additional mitigating evidence existed and should have been presented

at trial. This mitigation included an abused childhood and an addiction

to drugs and alcohol. The trial court found this evidence would not

have affected the penalty in light of the crime and the nature of the

aggravating circumstances. We affirm the trial court's finding that the

second prong of the Strickland test has not been satisfied. Id.

Tompkins, 549 So. 2d at 1373 (second emphasis supplied) (footnotes omitted).

This Court approved Judge Coe's conclusion based on his weighing of the

aggravating and mitigating circumstances following an evidentiary hearing.

Furthermore, this Court affirmed the death sentence after additional mitigating

evidence that was not presented at trial was presented and weighed at the

evidentiary hearing. Finally, this Court approved the trial court's denial of relief on

the basis of the prejudice prong of Strickland. Thus, even after this Court had

considered and weighed the total cumulative mitigation presented at trial and during

-34-

the postconviction proceedings, this Court's confidence in the death sentence was

not undermined. It then follows that if after consideration of the additional

mitigation, confidence in the death sentence was not undermined, then the

procedural error in Judge Coe's failure to prepare a sentencing order that weighed

the aggravators against the lesser mitigation does not undermine confidence in the

outcome.

Our conclusion is bolstered by the decision of the Eleventh Circuit Court of

Appeal on federal habeas review in Tompkins v. Moore, 193 F.3d 1327 (11th Cir.

1999). In a detailed analysis, the Eleventh Circuit addressed Tompkins' penalty

phase ineffectiveness claim:

THE PENALTY STAGE INEFFECTIVENESS CLAIM

At the penalty stage, in addition to relying upon the evidence

that had been presented during the guilt stage, the State also proved

that Tompkins had been convicted of two separate, knife-point

abductions and rapes of convenience store clerks. Both of those

other crimes occurred after Tompkins sexually assaulted and

murdered Lisa DeCarr on March 24, 1983, but before her body was

found in June of 1984. The first of those two rapes occurred on April

7, 1984, and the second on May 30, 1984. Tompkins pled guilty to

armed robbery, kidnaping, and sexual battery in connection with the

first rape, and he pled no contest to kidnaping and sexual battery in

connection with the second rape. The prosecutor accurately argued to

the jury that Tompkins had been convicted of five violent felonies

prior to his conviction for the capital offense in the present case,

saying, "That is his violent past right there: two rapes, two kidnapings,

and an armed robbery, five previous violent felony convictions."

-35-

The prosecutor also argued that "these crimes he committed in

Pasco County when he was raping these two other women on April 7,

1984, and May 30, 1984, Lisa DeCarr still had not been found. She

was still buried under that house when this man unleashed his violence

on these two other women in Pasco County." The crime was

especially heinous, atrocious and cruel, the prosecutor urged, because

as the fifteen-year-old victim resisted Tompkins' sexual advances and

struggled against him, Tompkins strangled her to death with the sash

of her bathrobe. He emphasized to the jury that Lisa DeCarr did not

die instantly but instead had her life strangled out of her and must have

realized before losing consciousness that she was going to die.

At the beginning of the penalty phase, trial counsel informed the

court that Tompkins had just decided that no mitigating circumstance

evidence should be presented, because he did not want to spend the

rest of his life in prison. Counsel did not want to forego presenting

mitigating circumstances and asked the court for a recess so he would

have an opportunity to talk his client into changing his mind. The trial

court directed counsel to ignore his client's instructions and to present

mitigating circumstance evidence.

Counsel called as mitigation witnesses Tompkins' two older

sisters, and also a brother-in-law who had known him for fifteen years.

The sisters testified that Tompkins was shy, had never displayed any

violent behavior, had never hurt anyone, did not use obscene language,

and had always worked and supported himself up until the time of his

arrest. The brother-in-law testified he had known Tompkins for fifteen

years, and that Tompkins had worked for him for four years in a

roofing and construction business. He described Tompkins as a good

employee who was always on time, good to follow orders, and eager

to learn. He had not had any complaints from any customers about

Tompkins, who never got into any arguments or fights with anyone.

In his closing argument, defense counsel pointed out that

Tompkins had admitted his guilt for the two other crimes for which he

had been convicted, and that no one had been seriously injured or

killed in them. He also argued Tompkins' age as a statutory mitigating

circumstance, and he discussed the non-statutory mitigating

circumstances about which the defense witnesses had testified. He

urged the jury to spare Tompkins' life.

-36-

The jury returned an advisory verdict unanimously

recommending the death sentence. The trial court found three

statutory aggravating circumstances: 1) previous convictions for

felonies involving the use or threat of violence to the person; 2) the

murder was committed while the defendant was engaged in an attempt

to commit sexual battery; and 3) the murder was especially heinous,

atrocious, or cruel. The court found one statutory mitigating

circumstance: the defendant's age (twenty-six years old) at the time of

the crime.[n.] The trial court sentenced Tompkins to death.

[n.] The district court observed that "the finding of

mitigation because of his age would seem extraordinarily

generous."

Tompkins contends that trial counsel was ineffective at the

penalty phase because he failed to present additional mitigating

circumstance evidence. The state trial court conducted an evidentiary

hearing on this claim, and although concluding that counsel's

performance had been deficient, the court nonetheless rejected the

claim because Tompkins had failed to establish prejudice, as required

under the Strickland decision. On appeal, the Florida Supreme Court

agreed with both aspects of the trial court's ruling. It found that

counsel had been deficient because he failed to present some available

mitigating circumstance evidence, but it also concluded that "this

evidence would not have affected the penalty in light of the crime and

the nature of the aggravating circumstances." See Tompkins, 549 So.

2d at 1373. After conducting a de novo review, the district court

agreed that Tompkins had failed to establish prejudice but found it

unnecessary to determine whether or not trial counsel's performance

had been outside the wide range of reasonable professional assistance.

We follow the same path as the district court.

Under the prejudice prong of Strickland, "[i]t is not enough for

the defendant to show that the error had some conceivable effect on

the outcome of the proceeding." 466 U.S. at 693. Instead, "the

question is whether there is a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death." Id.

-37-

at 695. A "reasonable probability" of a different result here, as in

regard to the guilt stage, is one sufficient to undermine our confidence

in the outcome. See id. at 694. That means Tompkins must convince

us that if the additional mitigating circumstance evidence in question

had been presented, "there is a reasonable probability that the balance

of aggravating and mitigating circumstances would have been

different." Horsley v. Alabama, 45 F.3d 1486, 1493 (11th Cir.1995);

accord, Weeks v. Jones, 26 F.3d 1030, 1042 (11th Cir.1994) ("[T]he

petitioner must show . . . there is a reasonable probability that the

sentencer would have weighed the balance of aggravating and

mitigating factors to find that the circumstances did not warrant the

death penalty.") (quoting Bush v. Singletary, 988 F.2d 1082, 1090

(11th Cir.1993) (per curiam)). In order to decide this issue we look at

the mitigating circumstance evidence that was not presented, along

with that which was, and consider the totality of it against the

aggravating circumstances that were found.

Id. at 1335-36.

The circuit court then set out in detail what additional mitigation Tompkins

contended counsel should have been presented. The circuit court concluded:

We have considered all of the mitigating circumstance evidence

Tompkins says should have been presented at the sentence stage,

along with that which was actually presented. But weighing against it

are multiple, strong aggravating circumstances. The weight of those

aggravating circumstances overwhelms the mitigating circumstance

evidence that was and could have been presented. We conclude in

this case, as the Supreme Court concluded in the Strickland case,

there is no reasonable probability that the omitted evidence would have

changed the conclusion that the aggravating circumstances outweighed

the mitigating circumstances and, hence, the sentence imposed.

Id. at 1339 (emphasis added) (footnote omitted).

In conclusion, based upon this examination of the record in this case, we do

24. Although we do not condone the ex parte communication in this case,

we note that Tompkins was not denied either a neutral, detached judge or an

impartial sentencer. Compare Randolph v. State, 28 Fla. L. Weekly S659, S660

(Fla. Apr. 24, 2003) (concluding that the defendant was not denied a neutral and

detached judge where the judge's law clerk engaged in an ex parte communication

with the prosecutor but there was no evidence that the judge determined that the

defendant would receive a death sentence prior to the sentencing proceedings) with

Porter v. State, 723 So. 2d 191, 197 (Fla. 1998) (concluding that the defendant was

entitled to a new sentencing based on evidence that the trial judge made up his mind

to sentence the defendant to death before the penalty proceedings began).

-38-

not find that our confidence in Tompkins' death sentence is undermined. This case

is therefore different from State v. Reichmann, 777 So. 2d 342 (Fla. 2000), in which

we affirmed the granting of a new penalty phase based on both "the performance of

defense counsel and the conduct of the sentencing court." Id. at 353. Further, we

concluded in Reichmann that due to the circumstances presented our confidence in

the outcome of the penalty phase was substantially undermined. See id. at 352-

CONCLUSION

Based on the forgoing, we affirm the trial court's summary denial of

Tompkins' Brady claims and affirm the trial court's denial of Tompkins' motion for

DNA testing and motion to compel the production of public records. However, we

reverse the trial court's order granting a new penalty phase trial and reinstate the

death sentence. The stay of execution is dissolved effective 30 days after this

25.The State conceded error in the case of State v. Holton, 835 So. 2d 268

(Fla. 2002), on this same issue, which also involved Judge Coe. The State

stipulated to the fact that Holton was entitled to a new penalty phase. This Court

affirmed the trial court's order also granting Holton a new guilt phase trial in an

unpublished order dated December 18, 2002.

-39-

decision becomes final.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

QUINCE, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

ANSTEAD, C.J., concurring in part and dissenting in part.

The only disagreement I have with the majority is the holding that the trial

court erred in granting Tompkins a new sentencing phase based on his claim that

the sentencing judge failed to independently weigh the aggravating and mitigating

circumstances and failed to disclose that the State prepared the sentencing order.

This holding is directly contrary to our controlling law, fails to respect the role of

the trial judge as fact-finder, and conflicts with the outcome of a recent case

In granting relief on this claim, the trial court explained:

During the April 17, 2001 hearing, the State conceded that an

evidentiary hearing was necessary on this claim. On April 18, 2001,

-40-

the Court conducted an evidentiary hearing on this claim. Based upon

the testimony of the witnesses and the argument of counsel, the Court

finds that Defendant is entitled to relief with regard to this claim.

After the evidentiary hearing, the Court finds that the former

State Attorney, Mike Benito, admitted drafting the sentencing order for

the Defendant. The Court finds that Mr. Benito drafted the order after

being contacted by the judge or the judge's office. Additionally, the

Court finds that the sentence of the Defendant was pronounced

immediately after the jury provided its recommendation. (See

Transcript of Sentencing, attached).

Florida Statutes require that the sentencing judge independently

weigh the aggravating and mitigating circumstances. Fla. Stat. 921.141

(1985). It is impossible for a judge to request that any party draft any

sentencing order which requires the weighing or aggravating and

mitigating circumstances. See Card v. State, 652 So. 2d 344 (Fla.

1995) and Spencer v. State, 615 So. 2d 688 (Fla. 1993).

The Court finds that testimony demonstrates that there was an

ex parte communication between the sentencing judge and the State in

this case. The Court finds that the limitation of argument that the

Court imposed for the State in arguing aggravating and mitigating

circumstances is not sufficient "weighing" by the trial judge. The

Court finds that the failure to independently weigh aggravating and

mitigating circumstances in this case entitles Defendant to relief.

As noted above, these findings are supported by the evidence and this Court's law.

In this case, prosecutor Benito testified that although he did not have a

specific recollection of being called by Judge Coe's office, he prepared the

sentencing order in this case as he had done in other cases for Judge Coe. The

State presented no evidence to refute Benito's testimony that he was asked by

Judge Coe, in an ex parte communication, to prepare the order. Further, the record

supports the trial court's finding that there was no weighing of the aggravating and

-41-

mitigating circumstances in this case. Judge Coe pronounced sentence immediately

following the jury recommendation, and as in State v. Riechmann, 777 So. 2d 342

(Fla. 2000), the record does not contain any oral findings reflecting any

independent weighing of the aggravating and mitigating circumstances by Judge

Coe.

Further, Tompkins' trial counsel and prior postconviction counsel testified

that they were unaware that the sentencing order had been prepared by the State.

Although the State makes a due diligence argument, the State cites nothing in the

record that would have led counsel to conclude that the State prepared the

sentencing order.

In Roberts v. State, 840 So. 2d 962 (Fla. 2002), Maharaj v. State, 778 So. 2d

944 (Fla. 2000), and State v. Riechmann, 777 So. 2d 342, 351 (Fla. 2000), the

defendants were granted new sentencing proceedings based on the same claim

Tompkins presented in this case. In Maharaj, the State did not appeal the trial

court's granting of a new sentencing proceeding and this Court affirmed this issue

without discussion. See 778 So. 2d at 947-48, 959. In Riechmann, this Court

reviewed the trial court's order granting a new penalty phase and concluded that the

trial court properly considered "the nature of the contact between the judge and the

prosecutor, when the judge was given the order, and when he gave copies to the

-42-

defendant," in determining that "Riechmann was denied an independent weighing of

the aggravating and mitigating circumstances." 777 So. 2d at 352. This Court

noted that the record supported the trial court findings that "the record contains no

oral findings independently made by the trial judge, which satisfies the weighing

process required by section 921.141(3), nor did defense counsel know that the

State prepared a sentencing order to which he failed to object." Id.

Most recently, in Roberts, this Court affirmed the trial court's findings that

the sentencing order was prepared by the State after an ex parte communication

with the trial judge. Although contradictory evidence was presented as to whether

the trial judge asked the State to prepare the sentencing order, this Court found that

the lower court's ruling was supported by substantial competent evidence and

affirmed the grant of a new sentencing proceeding. See Roberts, 840 So. 2d at

972-73.

Because the trial court's order indicates that the judge properly considered

the factors set forth in this Court's controlling case law, I would affirm the trial

court's order for a new penalty phase.

A Notice of Appeal and Cross Appeal from the Circuit Court in and for

Hillsborough County, Daniel L. Perry, Judge - Case No. 84-10538

Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel - South,

-43-

Martin McClain, Special Assistant Capital Collateral Regional Counsel and Suzanne

Myers, Assistant Capital Collateral Regional Counsel, Fort Lauderdale, Florida

for Appellant/Cross-Appellee

Charles J. Crist, Jr., Attorney General and Robert J. Landry, Assistant Attorney

General, Tampa, Florida

for Appellee/Cross-Appellant