ÿWPCL ûÿ2BJ|xÐÐÐ °°€ ÐÐ °°è˜ Ð Ã ÃIN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIALÄ Ä Ã ÃCIRCUIT OF THE STATE OF FLORIDA, IN AND FORÄ Ä Ã ÃHILLSBOROUGH COUNTYÄ Ä Ã ÃCRIMINAL JUSTICE DIVISIONÄ Ä Ã ÃTHE STATE OF FLORIDAÄ Ä Ã Ãvs. CASE NO: 84-10538Ä Ä Ã Ã DIVISION: Ä Ä"à ÃAÄ Ä" à ÃWAYNE TOMPKINS,Ä Ä Ã Ã DefendantÄ Ä. ÃÃà Ã___________________________ÄÄ Ä Ä This cause came on to be heard before the à ÃHONORABLE DANIEL L. PERRYÄ Ä, Circuit Judge, at the Hillsborough County Courthouse Annex, Tampa, Florida, on April 18, 2001, as follows: à ÃVOLUME IIIÄ Ä APPEARANCES: Sharon Vollrath, Assistant State Attorney, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State; Robert Landry, Scott Browne, and Carol Dittmar, Attorney General's Office, Department of Legal Affairs, Westwood Building, 7th Floor, 2002 North Lois Avenue, Tampa, Florida 33607; in behalf of the State; Todd Scher, Martin McClain, and Suzanne Myers, CCR South, 101 NE 3d Avenue, Ste. 400, Fort Lauderdale, Florida 33301; in behalf of the defendant. COLLEEN MERRITT, OFFICIAL COURT REPORTER 800 EAST KENNEDY BLVD., COURTHOUSE ANNEX CA-1-124, TAMPA, FLORIDA 33602 ÃÃI N D E XÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ PROCEEDINGS .............................. 180 1 DEFENSE WITNESS - DANIEL HERNANDEZ ...... 182 3 DIRECT EXAMINATION BY MR. MCCLAIN ........ 182 3 CROSS-EXAMINATION BY MR. BROWNE ......... 183 15 RE-DIRECT EXAMINATION BY MR. MCCLAIN ..... 188 8 DEFENSE WITNESS - MIKE BENITO ............ 191 3 DIRECT EXAMINATION BY MR. SCHER .......... 191 3 CROSS-EXAMINATION BY MS. VOLRATH ......... 195 2 RE-DIRECT EXAMINATION BY MR. SCHER ....... 197 24 DEFENSE WITNESS - MARTIN MCCLAIN ......... 199 20 DIRECT EXAMINATION BY MR. SCHER .......... 199 20 CROSS-EXAMINATION BY MR. BROWNE ......... 205 21 RE-DIRECT EXAMINATION BY MR. SCHER ....... 207 12 DEFENSE WITNESS - SHARON VOLLRATH ........ 209 23 DIRECT EXAMINATION BY MR. SCHER .......... 209 23 CROSS-EXAMINATION BY MR. Browne ......... 213 4 CONCLUSION OF PROCEEDINGS ................ 225 12 CERTIFICATE OF REPORTER .................. 226 1 ÃÃE X H I B I T SÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ State Exhibit 1 - page from file ......... 197 19 Defense Exhibit 3 - joint stipulation .... 204 18 Defense Exhibit 4 - sentencing order ..... 204 18 à ÃP-R-O-C-E-E-D-I-N-G-SÄ Ä THE COURT: On the Tompkins hearing. Ready to proceed? Is the defense ready? MR. SCHER: Judge, if we could have Mr. Tompkins brought over here. THE COURT: Sure, let them get these other individuals out. You want to bring Mr. Tompkins over to the defense table, okay. MS. VOLLRATH: Judge, I would just like to inform the Court Mr. Benito is here but he indicated to me that he had a conflict at noon so if it would be possible to have his testimony first. THE COURT: Okay. MR. MCCLAIN: Mr. Hernandez has the same problem. THE COURT: Who? MR. MCCLAIN: Mr. Hernandez. He's also out in the hallway. He's actually probably going to be briefer than Mr. Benito's testimony. MS. VOLLRATH: Mr. Hernandez indicated he didn't have a conflict or -- MR. MCCLAIN: Well, he told me he did, I'm sorry, I can go ask him. THE COURT: Well, let's just call somebody. MR. MCCLAIN: I'm going to call Mr. Hernandez. THE COURT: Mr. Hernandez. MS. VOLLRATH: I would invoke the rule. THE COURT: All right, anybody who is going to be a witness in this matter if you're in the courtroom you need to step outside and don't discuss your testimony among yourselves or with anyone else except the attorneys for either party one witness at a time. Mr. Hernandez, if you'd step up here and have a seat in the witness chair, please. Raise your right hand, please. Do you swear or affirm testimony you're about to give will be the truth, the whole truth, and nothing but the truth? THE DEFENDANT: I do, Your Honor. THE COURT: Put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Daniel Hernandez, H-E-R-N-A-N-D-E-Z. THE COURT: You may inquire. Whereupon, à ÃDANIEL HERNANDEZÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. MCCLAIN: Q Mr. Hernandez, are you the Mr. Hernandez that represented Mr. Wayne Tompkins at his trial? A Yes, I am. Q And in fact did you testify in 1989 in a matter as well? A Yes. Q Okay. I'm going to hand you what is marked sentencing and for the record at the bottom indicates page 678 of the ROA on direct appeal, Your Honor, and it's four pages actually and ask, Mr. Hernandez, do you, if you could take a moment to look at that document and do you recognize that as well? A Well, I recognize it as the sentencing order. I can't say that I specifically remember the document but I'm sure it is what it purports to be the sentencing orders in this case. Q There would have been a sentencing order that would have been entered by Judge Coe in this case? A Yes. Q Prior to discussions you and I had last week did you have any information that, that sentencing order you have in front of you had been prepared by Mike Benito? A No, I did not have knowledge. Q That was never provided to you either by Judge Coe or Mike Benito? A I have no recollection whatsoever that ever being told that anything along those lines that Mr. Benito had anything to do with the preparation of the order. MR. MCCLAIN: Okay, I have no further questions. THE COURT: Any questions from the State? MR. BROWN: Yes, Your Honor. THE COURT: You may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MR. BROWNE: Q Scott Browne from the Attorney General's Office. Good morning, Mr. Hernandez. A Good morning. Q Judge Coe was a pretty independent minded person; was he not? A I think he was. Q And he did not hesitate to express his opinion in his own courtroom, did he? A Certainly not. Q In general during that time period that I guess you can include to this period of time it was not uncommon for Judge Coe to call on the attorney to draft an order; is that correct? MR. MCCLAIN: Objection, it's not particularly relevant. The sentencing order under the case law from the Florida Supreme Court is a different kind of order then any other kind of order and there is specific case law regarding that and what his other practices as to other orders is just not relevant. THE COURT: Well, I'll overrule the objection, go ahead. A No, it is not uncommon for a judge to ask an attorney to prepare an order. Now I'm not aware of that, I was not aware of that being done in death penalty cases but certainly in many other type of motions it is not unusual to have a judge ask the attorney to prepare the order. Q This is going back to 1985 when the sentencing was conducted in this case, are you aware of any case law that precluded the state attorney from drafting a sentencing order? A No, my knowledge is that, that case law is 1995 that there was no law prohibiting that in 1986 or whatever year it was. Q Judge Coe discussed what available aggravators or mitigators were during the charge conference between the attorneys; is that correct? A Um, I'm sure, yes. Q What was the juries recommendation in this case? A Death. Q And do you know by what vote? A I don't recall. Q So you wouldn't dispute it if I told you it was twelve to zero? A Oh, I would not dispute it at all. I just can't specifically recall. Q Mr. Tompkins' record in this case included five violent felony convictions; is that correct? A I believe so but at this point -- THE COURT: Excuse me, Mr. Hernandez. My understanding is what we're here on is just the question of whether or not this order was drafted by the State and we're not really here on whether or not the death penalty was or was not an appropriate penalty in this case, correct? MR. BROWN: If I may what I think my questions are relevant is the State would argue that it really didn't make a difference in this case. This was an overwhelming case. THE COURT: Well, you can argue that but let's move on. BY MR. Browne: Q I'm moving on. Briefly, the violent felony convictions included two prior rapes; did they not? MR. MCCLAIN: Objection, Your Honor. THE COURT: Well, I think it's all part of the record. A I have not studied this file to that extent for purposes that I was called I didn't do that to testify today. To be honest with you I do not, I cannot be specific as to what his prior record was. I know he had a prior record. I know some of it was, I recall it having been a violent nature but specifics I don't recall. Q Now with the unanimous jury recommendation and of the violent prior record it was not surprising that Judge Coe would sentence Mr. Tompkins to death in your opinion? MR. MCCLAIN: Objection, it's not relevant prior to it wasn't surprising. The issue before the Court is whether or not this witness knew that Judge Coe had exparte communications with Mike Benito. THE COURT: I think that's what we're here on so I'll sustain the objection. Let's move on. BY MR. Browne: Q Do you recall the sentencing order was prepared and presented at the time Judge Coe announced the sentence? A I suspect that it was but I don't recall. I suspect at the time the sentence was actually given the sentencing order was simultaneous with that but I really do not recall. MR. BROWN: Your Honor, may I have a moment? THE COURT: Sure. Does anybody have a transcript of the sentencing? MR. MCCLAIN: Yes, Your Honor. THE COURT: Can I have it? MR. MCCLAIN: For the record I'm providing Your Honor with pages 457 and 458. BY MR. Browne: Q Your Honor, one more question. Given the fact that you were not aware of any case law existing in 1985 that precluded the state attorney from drafting the sentencing order would you have objected at that time if Judge Coe has asked for an order from the State? A That's difficult to answer. Knowing that it's now prohibited at the time as long it was done -- if it was simply getting someone getting Mike Benito to do the typing if it had all of the true thoughts of Judge Coe I don't think there would have been a problem. I think the problem is that if in fact um -- MR. BROWNE: I think you answered my question, thank you very much. THE COURT: Anything else from this witness? à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. MCCLAIN: Q Briefly. If I may just to refresh your recollection, Mr. Hernandez, I'm handing you pages 457 and 458 from the record. If you could, really I think it's the second page 458 where if you look and you can see where Judge Coe announced the sentence. In terms of refreshing your recollection do you recall, do you have any reason to dispute the record in terms of the accuracy of what Judge Coe said when he imposed the sentence of death? A No, I don't have any reason to dispute this. Q And I also well, if you could note the date that is on the file stamp on the judgment and sentence or not the sentence, judgment and sentence, I think it's called sentencing; is that right what it's called? A The label says sentence and it's there's a handwritten number that appears to be October 21st. Q Okay, and do you have any independent recollection at this point in time or would you simply have to rely on the record as to whether that sentence was filed with the clerk at the time the sentence was announced by Judge Coe? A No, I would have to rely on the record. I don't have any -- I do not have any independent recollection. Q And at the time of that proceeding did you know of any Florida rules or case law that precluded exparte communications between a judge and the state? A Could you repeat that? Q Did you know of any prohibition upon the state having exparte communications with the judge back in 1985? I mean, was it proper for a prosecutor and for a judge -- A Unless without the knowledge of the defense attorney I would say that it would be improper. Q Okay, back in 1985 it would have been improper? A Yes. MR. MCCLAIN: No further questions, Your Honor. THE COURT: Any further questions of this witness? MR. BROWNE: Nothing from the State, Your Honor. THE COURT: Thank you. Call your next witness. MR. MCCLAIN: Your Honor, I was going to mark these for the Court's convenience so it may make it easier to refer. THE COURT: Who is your next witness? MR. SCHER: Mike Benito. THE COURT: Mike Benito. Mr. Benito, if you'd step up here to the witness chair, please. THE WITNESS: Yes, sir. THE COURT: Raise your right hand, please, sir. Do you swear or affirm testimony you're about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: Yes, sir. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Michael Benito, B-E-N-I-T-O. THE COURT: You may inquire. Whereupon, à ÃMIKE BENITOÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Thank you, good morning, Mr. Benito. I'm Todd Scher on behalf of Mr. Tompkins. A Good morning. Q Were you employed by the state attorney's office here in Hillsborough County previously? A Yes. Q And were you the prosecutor for Mr. Wayne Tompkins versus the State of Florida? A Yes. Q And you were the only prosecutor in the case? A Yes. Q And do you recall who the judge was? A Harry Coe. Q And do you recall this being a case going to a penalty phase? A Yes. Q And what was the ultimate resolution of the case in terms of sentence? A The jury recommended death by a vote of twelve to zero and the death penalty was imposed. Q And I'm showing you the sentencing order which has been referred to by the previous witness if you could take a look at that document. A I have seen it. Q And do you recognize that document? A Yes. Q What is that? A That's the sentencing order signed by Judge Coe. Q And did you prepare that sentencing? A Yes, I did. Q And how did you go about preparing it? A Um, Coe asked me, Coe had his secretary called me after the sentencing phase that he needed an order prepared on Mr. Tompkins' case and I prepared the order based on what I felt Judge Coe -- Judge Coe had a habit of limiting me as to what I could argue for aggravating circumstances and in this case as others I tried in front of him he more than likely told me that these are the only aggravating circumstances you can argue. I argued those three. The jury accepted those aggravating circumstances and made their recommendation and then Judge Coe asked me to prepare the order and I prepared the order and citing the three aggravating circumstances that Judge Coe let me argue. Q And so you drafted that order as it is, correct? A No, I couldn't say as is whether Judge Coe after I submitted it to him for his signature whether he made any changes in that order I couldn't tell you. This has been 15 years now. Q Was there -- when you drafted the order did you write that in long hand? A Did I write the order in long hand? Q Did you write the order in long hand and give it to his secretary to type or -- A I think I probably would have written it on somewhat in long hand and dictated it. Q Okay, and the order was sent to Judge Coe, correct? A Correct. Q And he signed it? A Yes, his signature is on the third page. Q Do you recall when Judge Coe signed this? A No, I don't. Q Okay, if I can have a moment. Mr. Benito, in terms of do you have any drafts or any other handwritten notes you may have done in your possession? A No, I don't. Q Do you know whether or not those items still exist? A I don't think they do. Q Okay, and if you would have any kind of draft or anything like that in your file back in 1989, would that be something you would disclose to Mr. Tompkins pursuant to his public records request? A I would assume so. Q And when is the -- prior to your testimony today have you had discussions with representatives from the state in this case? A Yes. Q And when is the first time that you alerted them to the fact that you had prepared that sentencing order in this case? A I don't know, a few days ago. I didn't alert them, they asked me. Q You told them that you had? A Correct, my recollection I would have. Q And do you recall when that conversation took place? A I don't know, a few days ago three or four days ago. MR. SCHER: Nothing further. THE COURT: Any questions? MS. VOLLRATH: Yes, Your Honor. THE COURT: You may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MS. VOLLRATH: Q Mr. Benito, do you have a specific recollection of being called by either Judge Coe or the secretary in this case? A No, not a specific recollection. I handled other cases in front of Judge Coe in which he would have told me right there in the courtroom. He had a habit of sentencing people right then after the jury came back with a recommendation. He would tell me and I think on one other case as I recall he would tell me prepare an order with aggravating circumstances and in this situation I don't know if it was something off the record that he told me to prepare the order before I left or whether or not I got a call from his secretary later about preparing the order. I don't know exactly how it went down. Q I'd like to show you what the State would like marked as State's Exhibit One. This is from page 486 of the record. Can you identify that document for the Court, please. A I assume that would be the inside cover of the Tompkins' file with the clerk; is that correct? I'm, I can't say for sure. Q The document is labeled case progress; is that correct? A Correct. Q Okay, I want to draw your attention to a notation on that document and down here at the bottom of the bottom the page number 486? A Right. Q Of the record the notation on the document first starts where? A September 16th, '85. Q What is recorded there? A The defendant present at jury trial. Looks like Dan Hernandez with Danny Hernandez I guess the attorney representing Mr. Tompkins. Then it's got next notation 9-17-85, jury verdict 1985, 1985, guilty as charged, second phase, heard testimony, jury recommends death, adjudicated guilty, sentenced to death. Then 9-20-87, some kind of notation. I don't think if it's October 11th, '85 order per judge, talked to Benito yesterday on phone. Q And the subsequent entry after that is? A October 4th, '85 motion for new trial denied. Q So regarding the entry is actually entered 9-20-87? A It indicated Judge Coe called me or somebody from his office called me. Q But the date I'm concerned about, Mr. Benito, is the '87 entry as opposed to the '85 all entries before and after it are '85 and then there this entry showing '87 entry; does that appear -- A That's incorrect, certainly incorrect. Q What -- does that help refresh your recollection as to anything that occurred regarding this sentence, the preparation of the sentencing order? A Not specifically. I would assume that he either called me and told me he needed an order prepared or he had his secretary call me and told me to prepare an order and that would not be unusual for Judge Coe to do that. I knew what aggravating circumstances he wanted in the order based on what he let me argue during the trial. MS. VOLLRATH: Thank you. I'd like to offer this into evidence. THE COURT: Sure, any further questions? MS. VOLLRATH: No, Your Honor. THE COURT: Any questions? MR. SCHER: Just a couple, Judge. THE COURT: Go ahead. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Mr. Benito, just so I am clear you're just assuming that's the subject of the conversation that's referred in this case progress notes was about the sentencing order issue, correct? A Correct. Q There's nothing on this document that actually alerts anyone what the substance of the conversation was? A In order per judge above when it says talked to Benito on phone again Judge Coe would not call me for any other reason except to tell me to do an order on that case. Q But the next entry is motion for new trial so it's possible that, that phone call could have been regarding the new trial motion; is that correct? A That's impossible. THE COURT: Anything else? MS. VOLLRATH: Nothing further, Judge. THE COURT: Anything else from the defense? MR. SCHER: No. THE COURT: May he be excused? MR. SCHER: Yes, sir, Your Honor. THE COURT: You're excused, Mr. Benito, thank you. Call your next witness. MR. SCHER: I would call Martin McClain. THE COURT: All right, Mr. McClain, if you'd step over here and have a seat in the witness chair, please. Raise your right hand please, sir. Do you swear or affirm testimony you're about to give in this matter will be the truth, the whole truth and nothing but the truth? THE WITNESS: Yes, sir, I do. THE COURT: Put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: For the record my name is Martin McClain, the last name is spelled M-C-C-L-A-I-N. THE COURT: You may inquire. Whereupon, à ÃMARTIN MCCLAINÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Mr. McClain, were you Mr. Tompkins' previous, Mr. Tompkins' counsel in this case? A Yes, in 1989. Q And that when you began representing Mr. Tompkins? A Yes, with the signing of the death warrant in 1989. Q And how long did you remain as Mr. Tompkins' counsel? Let me -- where were you employed in '89? A In 1989 I was employed by the Office of the Capital Collateral Representative in Tallahassee representing people on death row. Q When did you eventually leave the employment of the Office of CCR? A I left a couple of times but I left once in '90 for a period of nine months and then I left again in 1998. Q During the time that you were employed by CCR were you one of the lawyers assigned to Mr. Tompkins' case? A Yes, I remained on Mr. Tompkins' case until the time that I left in 1998. I, in fact even have been on his case while I was away in '90. Q Now in his current 3.850 motion claim there has been alleged and you're aware in terms of a sentencing order? A Yes, I am, Q And could you explain how it is that, that claim arose? A Um, well, currently I am employed in New York with Legal Aid Society and this past fall I had been in touch with Linda McDermott who is doing the Rudolph Holton case and she had asked me if I would participate in the Holton hearing which is scheduled to start this afternoon and I had agreed to do that and so I had taken some time off in March and April from New York to actually come down and help on the Holton hearing when the death warrant was signed on the Wayne Tompkins' case and so I actually, you know, it was on a Saturday March 31st I was sitting down and because it was the same judge on both cases and started comparing things and suddenly discovered in the record that the circumstances of Mr. Tompkins' case was identical to Mr. Holton's case when it came to the proceedings at the penalty stage and the judge sentencing and the sentencing order and I realized that State had confessed error last August in the Holton case as to the sentencing order and so that's when I started the investigation and sort of figured things out. Q And did you subsequently speak to Ms. McDermott in terms of what had happened in the Holton case? A That Saturday the 31st, March 31st I spoke to Linda McDermott regarding her conversation with Jack Gutman when the State agreed to or confessed to error in the Holton case. Q Now prior to that Saturday March 31st and of course your representation of Mr. Tompkins, did you ever have any indication that the prosecutor Mr. Benito had prepared the sentencing order at Judge Coe's direction on an exparte basis? A No, I have not. Q When, during Mr. Tompkins initial state post conviction litigation had you received documents from the state attorney's office pursuant to Chapter 119 request? A Back in 1989 we had a public record request and received documents and I received nothing in those documents that indicated that Mike Benito had drafted the sentencing order. Q I'm going to show you what has been marked as State's Exhibit Number One if you could look at that. Do you recognize that exhibit? A Yes, I do recognize this. Q And have you read that exhibit? A Yes, this is actually I think the State indicated page 486 of the record on direct appeal in Mr. Tompkins' case and it obviously would have been something that I would have had even back in 1989 when working on his case. Q Now as a lawyer for Mr. Tompkins is there anything on that document that would alert you to the fact that Mr. Benito had an exparte communications with Judge Coe wherein Judge Coe asked Mr. Benito to prepare a sentencing order in this case? A No, I mean that specifically I know obviously what the State is referring what was in their response and as to that just reading this there's an entry of September 20th and it says 1987 but it was clearly 1985. I'm sure that was just a mistake indicating something had been set for October 11th, 1985 and a notation Benito had been called and advised of it. You know, the Florida Supreme Court has made it clear that phone calls to attorneys indicating something has been set is ministerial that's not a problem and in fact then the next entry on October 4th there is a hearing that happened and Mr. Episcopo appeared on behalf of the State for Mr. Benito so there was nothing about that, that indicated to me that the order had been drafted by the State. Q If you would have had any indication during the initial post conviction proceedings that this situation had occurred would that be something that you would have had a reason not to raise about? A No, I mean in fact I raised this issue a number of times and I have prevailed on a number of cases with this issue. Q And including in successor cases like Mr. Tompkins' case? A Yes, earlier this year in the Ricky Roberts case successor case where it came out that Judge Solomon had a practice of doing this in other death sentences he imposed and the judge, Judge Bagget was presiding at the hearing that granted Ricky Roberts a resentencing on this issue. Q Was that in Dade County? A That was in Dade County, yeah. Q I'm showing you what has been marked and move into evidence Defense Exhibits Number Three and Four. THE COURT: Okay, any objection? MR. BROWNE: No, Your Honor. THE COURT: They'll be so received. BY MR. SCHER: Q And Mr. McClain, I am showing you what has been marked as Defense Exhibits Three and Four. Can you take a look at these documents and indicate first what exhibit three is and then exhibit four. A Exhibit three is the joint stipulation to the Holton case where the parties stipulated to a resentencing based on that issue. Q Exhibit Four? A Exhibit Four is the sentencing order that was entered in the Tompkins' case, I'm sorry. MR. BROWNE: Your Honor, if I may object. Those documents speak for themselves and are before the Court and the State didn't object but they are a limited relevance and that the fact that the State did enter a stipulation in some other case. THE COURT: Okay, I know what they are. Let's move on. BY MR. SCHER: Q And are those documents that you reviewed in terms of when you first became alerted to what happened in the Holton case and how it might effect Mr. Tompkins' case? A Yes, those are the documents I have reviewed. MR. SCHER: Just a moment. I have no further questions. THE COURT: Any questions? à ÃCROSS-EXAMINATIONÄ Ä BY MR. BROWNE: Q You're claiming that in 1989 you had no reason to investigate how Judge Coe normally drafted the sentencing order? A Um, the law at that time was the only issue was whether or not there was exparte communications between the judge and the state regarding the sentencing order and no, I did not. Q Are you aware of the published cases out of the Florida Supreme Court of Nibert v. State, 508 So.2d, Florida, 1987 and Holton v. State, published at 573 So.2d -- A I'm well aware. Q -- Florida, 1990? A The Holton case makes it clear that the record in this case did not have, does not present a claim for exparte communication. Q But in both of those cases they do, they did involve Judge Coe? A Mm-mm. Q Each case addressed the same issues that are now before this court that Judge Coe delegated the drafting of the sentencing order? A The Holton case specifically, the Florida Supreme Court said there was no evidence of exparte communication. Q So you're aware in 1989 these two cases delineating Judge Coe's normal practice? A I could not have been aware of the Holton case in 1989 because the Holton opinion didn't come out until 1991. Q I'm sorry, so you were aware nonetheless after 1990, of Judge Coe's practice? A And of course the Supreme Court said in the record did not create an issue in the Holton opinion. MR. BROWNE: The State has nothing further, Your Honor. THE COURT: Anything further? MR. SCHER: Yes. THE COURT: Go ahead. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Um, are you also aware, Mr. McClain, of the Porter, Raleigh Porter opinion regarding what collateral counsel duties are in terms of investigating judges in their decision making in cases? A Yes, I am. Q What is that duty? A Well, the Raleigh Porter opinion the court indicated that we are not to assume that judges violated their ethical obligations that we can in order to investigate that we have to have some specific indications that a violation occurred. That normally you're entitled to presume that judges follow their oath and follow the law. Q Mr. Browne was asking you about a couple of situations where you were supposedly to be on notice on the Holton case and the other cases about Judge Coe's practice, correct? A Correct. Q And in 1989 when you were before Judge Coe and with Mr. Benito as opposing counsel, did Mr. Benito ever indicate to you that he had written the sentencing on Mr. Tompkins' case? A No, he did not. Q If he had would you have followed up on that? A Absolutely I would have filed a motion to disqualify Judge Coe because he would not be able to preside over the proceeding and I would have filed a claim. Q At any time did Judge Coe ever disclose sua sponte that he had exparte communications with Mr. Benito at the time of Mr. Tompkins' trial? A No, he did not. Q To your knowledge is that something a judge is required to do? A Yes. MR. SCHER: Nothing further. THE COURT: Anything further of this witness? MR. BROWNE: Nothing, Your Honor. THE COURT: Thank you, sir, you may step down. Call your next witness. MR. SCHER: We would call assistant state attorney Vollrath. THE COURT: Ms. Vollrath, if you'd step up here to the witness chair, please. Raise your right hand, please. Do you swear or affirm testimony you're about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: I do. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Sharon Morgan Vollrath, V-O-L-L-R-A-T-H. THE COURT: You may inquire. Whereupon, à ÃSHARON VOLLRATHÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Good afternoon, Ms. Vollrath. Could you please tell us where you are currently employed for the record. A Hillsborough County State Attorney's Office. Q And did there come a time when you were asked to or assigned to the Wayne Tompkins' case? A After the death warrant was signed I was contacted by CCR regarding proceedings regarding public records request. Q And did you also participate in the drafting of the State's written response to Mr. Tompkins' 3.850 motion? A I did not participate in the drafting of that response but the attorney general's office drafted that response. Q Did you -- A I joined that. Q I'm sorry. A I joined that by signing it. Q And in your response, let me ask you this first. You were present during Mr. Benito's testimony? A Yes. Q When were you aware that Mr. Benito had told a representative of the state that he had prepared the sentencing order in this case? A Yesterday. Q So if he said a couple days of ago that would be he told somebody else? A The situation that went down is that after your motion was filed on Monday alleging ground five and we began which was the ground that involved this sentencing order and we began making inquiries. I spoke with Mr. Benito Monday afternoon I believe it may have been Tuesday afternoon the days kind of run together but it was post your filing of your motion. MR. BROWNE: Your Honor, if I may lodge an objection at this point I think her testimony is largely irrelevant. I don't know where they're trying -- THE COURT: Where are we going? MR. SCHER: Judge, essentially I want to establish that their response indicates that in fact this did not occur and now of course we know that has happened and I want to establish for the record when in fact the state knew that in terms of their assertion in here that it did not occur. THE COURT: Well -- MR. SCHER: And they were in court yesterday and they never bothered to disclose the fact that occurred. THE COURT: Well, I think she testified yesterday or testified today that she found Monday, is that correct, Ms. Vollrath, after the claim filed? MS. VOLLRATH: After the motion was filed I contacted Mr. Benito. Mr. Benito said, the statement to me that and my inquiry to him was do you know, do you know any recollection whether the State prepared the sentencing order. Mr. Benito said, golly, gee, I really don't recall and then he paused and then he said, if I had to guess I would say that the state prepared the order. Yesterday the attorney general's office faxed Mr. Benito a copy of the sentencing order after I had spoken with Mr. Benito yesterday morning a second conversation not the first one and then I learned from the attorney general's office yesterday that Mr. Benito had said that he believed that it was his product. BY MR. SCHER: Q And prior to receiving Mr. Tompkins' 3.850 motion I believe it was Monday did you have any reason to believe that this had occurred in Mr. Tompkins' case? A I had no reason to believe that. THE COURT: Any further questions? MR. SCHER: Nothing further. THE COURT: Any questions? MR. BROWNE: Briefly, Your Honor. THE COURT: Go ahead. à ÃCROSS-EXAMINATIONÄ Ä BY MR. Browne: Q Did you talk to Jack Gutman about the allegations contained in Mr. Tompkins' motion? A I did. Q What did Mr. Gutman tell you about that allegation? A Um, I believe that conversation was late Monday afternoon Mr. Gutman told me that he didn't recall making any statement regarding that -- we were talking about the actual hearing because my review and interpretation of CCR's motion was that they had indicated that this statement was made during the hearing when they filed the joint stipulation on August third, 2000, that was the way I was interpreting it. I had asked Mr. Gutman whether he made any such statement like that and he said order the transcript and I had not received the copy of the transcript at that point in time from that hearing. He indicated to me he couldn't imagine that he would have made any statements like that. Q He denied the statement that was attributed to him in Mr. Tompkins' motion? A That's correct. MR. BROWNE: The State has nothing further. THE COURT: Anything further of this witness? MR. SCHER: Nothing, Judge. THE COURT: You may step down. Call your next witness. MR. SCHER: We have no further witnesses on that claim, Judge. THE COURT: The State wish to provide or call any witnesses? MR. BROWNE: No, your Honor. THE COURT: All right, any argument? MR. MCCLAIN: Your Honor, I think that the case law is very clear on this. That the claim under the or from the Florida Supreme Court is that if there is exparte communications in obtaining and drafting the sentencing order a resentencing has to occur. Apparently now the State is now trying to maintain that this notation this progress note should somehow put us on notice of this claim even though Ms. Vollrath herself testified that prior to the filing of the 3.850 motion on Monday she had no basis for knowing this had occurred and it was only after the 3.850 was filed that she decided that maybe it was a basis for investigation and certainly if the State is not in a position to know the record and know the basis for that claim. It seems to me that the defense should not be in any different position in reading this and it certainly looks like it's just a routine sort of setting something for hearing contacting the different parties and there's a notation in fact of the hearing that occurred and happened on October 11th it happened on October 4th. Moreover the findings and facts I believe the file stamp version if you actually look at it well, I think the copy that was introduced says October 21st and for some reason I have made a note of October 14th but in either event the date that this was received by the clerk's office was not October 11th which is what this little notation is about some proceeding and telling Benito about it on the phone. The State has never disclosed any sort of draft sentencing order in this case to alert the defense the claim is here and emphatically has been what has been disclosed in public records that has caused the claim to surface and I believe in the Card case and the Riechmann case according to the court case and how the defense was alerted to those cases also in 3.850 I believe the case in which relief has been granted on this claim are noted and it's not something that's an harmless error analysis. I guess that's what the State is trying to say that it's subject to harmless error analysis and that's not the case law. The case law is that if there's the exparte that happens between the state and the judge it's a structural, structural defect and invalidates the proceeding and requires a resentencing to occur and if the judge who presided over the penalty phase is no longer the judge and not available then there has to be a penalty phase and that's what happened here and in every single case where this issue has arisen and I would note that we can go further and say under the Lindsey and in that case they actually imposed a life sentence and I think that under the Van Royal it's pretty good and we'll make it that a life sentence is the remedy because there was not a sentencing order that was entered in compliance with the statute and the statute when that happened a life sentence is required. Moreover this establishes that, um, Judge Coe should have recused himself back in 1989 from presiding over the 3.850 proceeding that was going on in 1989 and had exparte contact with Mike Benito and during those proceedings it was myself and Mr. Benito and Judge Coe in the courtroom I was the only person unaware of that exparte that occurred. Had I known I would have filed a motion to recuse Judge Coe in which case he would have been required to recuse himself and that tainted the entire proceedings and requires they be done over and Mr. Tompkins be put back in the position he would have been in had the disclosure occurred. Again as I pointed out yesterday the Florida Supreme Court made it clear the State is under an obligation to disclose valuable information to a defendant. In this case it was not disclosed. If it's favorable it creates a claim on the relief and granted and if it's not we have to find out for the happen stance because I happen to be involved in the Holton case and started looking and now they're even saying that Mr. Gutman didn't say what Ms. McDermott told me that he said, that doesn't matter. We now know it has happened. Mr. Benito has testified that it happened and a resentencing is required and Mr. Tompkins should be back in the position where he would have been had this been exposed at that time. Thank you, Your Honor. THE COURT: Anything from the State? MS. DITTMAR: Yes, Your Honor, I'm Carol Dittmar from the Attorney General's Office. We filed a separate response which I assume Your Honor has a copy of. THE COURT: Yes, I read it. MS. DITTMAR: There are basically several issues which Your Honor has to consider in determining how to resolve this issue. The first one is whether or not this could have been discovered earlier through due diligence in time raised for the initial post conviction motion and it's our contention that because of the entry in the case progress notes and because of the case law at the time the post conviction came out this was a claim which Mr. McClain was on notice of and could have explored at the time he was exploring potential issues. But even if this Court determines that it would not been discovered through due diligence then to raise it at this stage in a successive post conviction motion it has to be considered newly discovered evidence as the Florida Supreme Court said in Card. Now, Mr. McClain said there was no harmless error any type of analysis like that it's a structural defect that goes to the trial, the Florida Supreme Court has not said that. In fact they have not seen this claim at all on a successive motion. To my knowledge and the only case that has been assigned to Your Honor on a successive motion which relief has been granted is the Ricky Roberts case which the trial judge granted relief and State has taken an appeal and that is pending in Florida Supreme Court but the Florida Supreme Court has not seen this issue on a successive motion to make a determination. In order for there to be relief which is warranted that is newly discovered -- THE COURT: Excuse me, don't do that. Go ahead. MS. DITTMAR: -- which is warranted as newly discovered evidence there has to be a showing that it is material to this sentence that actually was imposed and there's a reasonable probability if this had been presented earlier that Mr. Tompkins would not have received the death sentence and they have made no allegations of prejudice, no showing that this sentence would not have been imposed if there was a way to raise it on direct appeal or in the initial post conviction motion it could not have been cured at that time. There are two legal issues which are intertwined. One is whether the trial judge improperly delegated his response to weigh the aggravating and mitigating factors and then there's a separate issue as to whether or not there was any improper exparte communication with the prosecutor. From the evidence that has been presented the testimony taken this morning there has been no showing of any substantive communication which would amount to improper exparte contact. What Mr. Benito said was he felt like he got words somehow from somebody to get an order to the judge and he knew what aggravators he put in based on what Judge Coe had told him he could argue at the penalty phase. There is no substantive discussion about the imposition of the sentence and that's what would be improper and that's would be the exparte problem which we don't have. We don't have any evidence of that. So the issue really is whether or not Judge Coe improperly delegated his responsibility to do an independent weighing and in the cases that have been cited to Your Honor, the Card case, specifically and also Riechmann the Florida Supreme Court said that's exactly the test you look at what contact occurred and whether, you know what whether the judge made his own articulated findings and if we don't have that here what difference it could make at this point. This is a statutory violation at most at it's very worse. It's not a constitutional claim that is fundamental in nature. It is something that clearly could be considered harmless in a successive post conviction motion not be considered material so as to grant relief. So for those reasons we would ask Your Honor to deny their claim. THE COURT: Anything else? MR. MCCLAIN: Briefly, Your Honor, I would point out that the Card case which is that case that first recognizes that this issue, this claim of exparte was a problem was a successor and so the fact that the State's position is it's not a successor situation is wrong. The very first case where it came up in Card was a successor and what the Florida Supreme Court ordered an evidentiary hearing and at the evidentiary hearing the judge granted a resentencing and the resentencing has now occurred. And the State is saying that this is just statutory. That's not what the Florida Supreme Court has indicated. This goes to exparte, exparte not statutory. Exparte is constitutional. It is concerned about due process notice an opportunity to be heard and Mr. Tompkins did not have notice that the State was giving information to Judge Coe regarding the findings to be made as to aggravating and mitigating circumstances. The document that the Florida Supreme Court relied upon in conducting their analysis on direct appeal. It officiates the entire sanctity of the process so there's no notice. There was no opportunity to be heard and the Florida Supreme Court has recognized not only in the context of the sentencing order but in other contexts. In the Rose v. State and in the Frank Lee Smith case, exparte contact between a prosecutor and a judge in the drafting of these orders violates due process and requires those proceedings to be done over again. So, Your Honor, I submit the law is crystal clear on this and that a resentencing is required. THE COURT: Anything else? MS. DITTMAR: Nothing else, Your Honor. THE COURT: All right. MR. MCCLAIN: For the record I neglected one item yesterday in connection with the Brady claim. We neglected to include the trial script or the transcript found in the police file regarding Detective Burke and I just want for the record -- THE COURT: All right, provide it to the clerk. All right, um, I'm going to take about a ten minute recess and I'll be back. (Whereupon, court was in recess) (Whereupon, court was back in session) THE COURT: All right, having reviewed all the matters that counsel has provided to the Court with both the state and the defense and having heard the testimony here this morning, it appears to me that Mr. Tompkins is entitled to a new sentencing hearing. I think looking at the case law, whether this was the case or the law at the time he was sentenced or not, I think it is the law at this point in time and you know under from the transcript of the sentencing of the original, of the actual sentencing there is no weighing of any mitigating or aggravating circumstances. There are no oral findings by Judge Coe, that show that he independently found any aggravating or mitigating and while Mr. Benito may have been aware that Judge Coe would not let him argue certain things there is no, you know, nothing that would indicate to me that the judge ever indicated of what the mitigating circumstances were. It was apparently an exparte communication I think both the statements by Mr. Benito and his recollection and Mr. Hernandez would indicate that and I think the law requires that the careful balancing and weighing of those circumstances and they weren't done in this case. So I think he's entitled to a new sentencing hearing. As to the other matters addressed in this 3.850 I will rule on those and provide orders by Friday on those particular matters, okay, and I'll provide a written order on this particular matter. MR. MCCLAIN: We would ask in light of the ruling for a stay of execution. THE COURT: Um, I think that would be warranted at this point so yes, I will do that and provide you with orders on all of them, okay? MR. MCCLAIN: Also Mr. Tompkins be sent back this afternoon. THE COURT: Yes, if they would as soon as they can get Mr. Tompkins back and we'll determine where we go from here at a later time. MR. MCCLAIN: Thank you, Your Honor. THE COURT: All right, on this particular matter we'll be in recess. (Conclusion of proceedings) à ÃCERTIFICATE OF COURT REPORTERÄ Ä STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, COLLEEN MERRITT, OFFICIAL COURT REPORTER for the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, DO HEREBY CERTIFY that I was authorized to, and did report the proceedings and evidence in this hereinbefore-styled cause, as stated in the caption attached, and that the preceding transcript attached hereto is a true, accurate and correct computerized transcription of my report of the proceedings had at said session. I FURTHER CERTIFY that I am not employed by or related to the parties to this matter nor interested in the outcome of this action. IN WITNESS WHEREOF, I have hereunto set my hand and seal in Tampa, Hillsborough County, Florida, this 16th day of August, 2001. ------------------------------- à ÃColleen Merritt, Official Court Ä Ä Ã ÃReporterÄ Ä