A. PROCEDURAL HISTORY.

Mr. Tompkins was indicted for first-degree murder and pled not guilty. Trial commenced September 16, 1983, and a jury found him guilty (R. 401). Following a penalty phase, the jury recommended the death penalty, and the judge immediately imposed a sentence of death (R. 678-81). The conviction and sentence were affirmed. Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied, 483 U.S. 1033 (1987). After a death warrant was signed, a post-conviction motion was filed and an evidentiary hearing was conducted. Though the circuit court found trial counsel’s performance was deficient, relief was denied. The Florida Supreme Court stayed the execution and later affirmed the denial of relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989). After a second death warrant a federal habeas petition was filed, and the federal district court stayed the execution. An amended petition was subsequently filed, and denied. On appeal, the Eleventh Circuit affirmed. Tompkins v. Moore, --- F.3d --- (11^th Cir. 2000), cert. denied, --- S.Ct. ---.

B. THE FACTS. The core of the State’s case, as established by a Bill of Particulars, was that Mr. Tompkins killed Lisa DeCarr "between 8:30 a.m and 5:00 p.m. on March 24, 1983 (R. 397-98). Although it presented 8 witnesses at trial, the State's position was that "the key testimony will come from three [] witnesses" -- Barbara DeCarr (the victim's mother), Kathy Stevens (the victim's best friend), and Kenneth Turco (the jailhouse snitch), and that "[t]hose three will provide the overwhelming evidence" that Mr. Tompkins killed Lisa DeCarr on the morning of March 24, 1983 (R. 108). The State acknowledged that its case was entirely "circumstantial," save for alleged "direct evidence" of a statement of Mr. Tompkins elicited by snitch Turco (R. 117).

Essentially, the State's theory, as outlined in its opening statement, was as follows: Wayne Tompkins and Barbara DeCarr were boyfriend and girlfriend, Wayne having moved in with DeCarr, along with her three children, including 15-year old Lisa (R. 107-08). On the morning of March 24, 1983, Barbara went to Wayne's mother's house to help her move; before she left the house between 8:30 and 9:00 A.M., she checked in on Lisa, who was in bed and was wearing a pink bathrobe (R. 110). After dropping Barbara's son Jamie off at school, Wayne came by his mother's house to assist, along with Barbara, with the packing (R. 110-11). At some point, at Barbara's request, Wayne went back to his house to get some newspapers to help with the packing (R. 111). After he came back to his mother's house, Wayne told Barbara that Lisa was on the couch watching TV (Id.). However, at 3:00 p.m. that day, Wayne told Barbara that Lisa had run away (Id.). Barbara went home, did not find Lisa, and contacted the police; she questioned Wayne, who told her that the last time he saw Lisa was when she was going out the back door to the store wearing a pair of blue jeans and a burgundy colored blouse (R. 111-12). Barbara and her sons eventually moved out of the house a month later, and Lisa remained missing for over one year (R. 112), until a body identified as Lisa's was found under the house in a shallow grave wrapped in a pink bathrobe with a ligature mark around her neck and some jewelry (R. 113).

Tampa Police Department Sergeant Rademaker testified that the "most significant" discovery found in the grave was "a finger bone with a ring around it" (R. 168). Rademaker testified that they were looking for the ring because "[f]rom talking with Barbara DeCarr, we had learned that her daughter had actually three pieces of jewelry: Two earrings and a ring" (R. 169-70). During a conversation with Barbara on June 5, 1984, she told him that she believed the body "was someplace on the property and possibly under the house" (R. 170); even though this interview was conducted after the discovery of the body, "we didn't tell her during the interview. We didn't tell her until after we were sure what we had" (Id.).

The medical examiner later identified the body as being Lisa DeCarr based upon information received from Barbara DeCarr. Medical examiner Diggs testified that based on the discovery of a ligature around the neck of the corpse, the cause of death was asphyxiation (R. 184). There was no way to determine how long the body had been in the grave, and that it is possible it could have been six or seven months prior to June, 1984 (R. 191). It was impossible to determine whether the ligature was placed on the body after it was in the grave or after the person had died, and but for the ligature, it would have been impossible to determine the cause of death (R. 192). Moreover, the ligature could have been used to drag the body to the gravesite (R. 193-94). The hyoid bone, which is "one of the bones that you look for" to determine if strangulation occurred, was "intact" (R. 193). Diggs also testified that he did not receive Lisa DeCarr’s dental records (R. 196). However, dental x-rays which were taken from the corpse "were used in order to make an identification" and he displayed those x-rays (R. 195). Dr. Powell was the one who made the dental identification, but he was not called as a witness and the basis for his opinion was never revealed (R. 195-96). However, Barbara DeCarr had reported that Lisa had an occluded tooth.

Barbara DeCarr testified that she was separated from her husband Harold, and had been since 1980; Harold lived in New York (R. 199). She first met Wayne in May, 1981, when she was living with her daughter, Susan LaBlanc, Susan's boyfriend Greg, and her other children Lisa, William, and Jamie (Id.). Wayne moved in with the family in September, 1981, and they dated about 3 years (R. 200-01). At one point, they lived in the Shady Lane Trailer Park, and would have been there during Halloween, 1982 (R. 201). By January, 1983, they had moved to the East Osborne house (R. 202).

On March 24, 1983, Barbara awoke at around 7 a.m. when Wayne woke her up and told her that Lisa had a headache and she'd like to stay home from school (R. 204). Barbara finally got up around 8 a.m., by which time Wayne had left to take Jamie to school (R. 205). Before she left to go to Wayne's mother's house, Barbara looked in on Lisa, who was in bed in a pink bathrobe, which had a sash; she couldn't tell if Lisa had anything on under the robe (R. 206). Lisa also had jewelry: cross-shaped pierced earrings and a little diamond ring that she always wore (R. 207). The jewelry was given to her by her boyfriend (Id.).

Barbara left the house at 9:00 a.m. with just Lisa at home (R. 208). When she got to Wayne's mother's, Wayne was there with other people (Id.). Barbara stayed there until 3:00 that afternoon (R. 209). At some point she sent Wayne home to get newspapers to use as packing material; she did not know how long Wayne was gone, and he returned with newspapers (R. 209-10). When he returned, he told her that Lisa was sitting on the couch watching TV (R. 210). At some point after returning with the newspapers, Wayne left again with his stepfather (Id.). Barbara further testified that at 3:00 that afternoon Wayne told her that Lisa "was gone, she had run away" (R. 211). He said that the last time he saw her she was at the back door of the house "on her way to the store" (Id.). He also said that Lisa was wearing a "maroon blouse, a pair of jeans that he had never seen before, and her pocketbook" (R. 212). Barbara then contacted the police from Wayne's mother's house (Id.). Barbara testified that prior to calling the police, however, Barbara went back home, but did not see Lisa; she discovered Lisa's pocketbook and robe missing, but her wallet was there as was a maroon blouse in the dirty clothes (R. 213). About a month later, she moved out of the house and into Wayne's mother's house (R. 214).

On cross-examination, Barbara testified that shortly after March 23, 1984, she had a discussion with Kathy Stevens, who was known to her as Kathy Sample (R. 217). Barbara acknowledged that after the day Lisa disappeared, several people had informed her that Lisa had been seen elsewhere in the community (R. 219). Lisa had also been suspended from school on March 23^rd and could not return until she was accompanied by a parent (Id.). It was not until June, 1984, after she found out Wayne was having an affair with another woman that she told the police of her suspicions that Wayne killed Lisa (R. 226, 237). She did not become suspicious or tell the police anything when Wayne gave her an allegedly incorrect description of Lisa's clothes in March, 1983 (Id.).

In the period between March, 1982, to June, 1984, Barbara had three other boyfriends in addition to Wayne Tompkins (R. 227), including Gary Francis; she denied that she moved out of the trailer park because Gary had harmed Lisa (Id.). It was also true that a man named Bob McElvin had propositioned Lisa, that he would do "certain things for her for sexual favors" (Id.).

Barbara acknowledged calling Wayne on the phone while he was incarcerated pending trial in order to solicit a confession from him, but Wayne never admitted any involvement (R. 229). She also testified that on March 24, 1983, Wayne left his mother's house "[t]wice that I know of," but did not remember if he appeared to be mussed up or dirty when he returned (R. 230).

Barbara denied that he ex-husband sexually abused Lisa (Id.). She denied telling anyone at the hospital in May of 1984 that her husband had sexually abused Lisa (R. 231). She also denied being in a fight in a bar when someone blamed her for Lisa's death, it was more of an "argument" than a fight (R. 231-32). Mrs. DeCarr testified that "it wasn’t exactly a fight." It was "[a]n argument" (R. 232).

Following Wayne's arrest for murdering Lisa, Barbara sent Wayne letters with copies of photographs of skeletal remains, as well as detailing how nice Lisa's funeral was, although she initially denied it until she was shown the letters (R. 234).

Barbara also testified that she did not practiced witchcraft, "I am a Catholic." (Id.) In her deposition, Barbara said her daughter would be lying if she had said that Barbara had engaged in sex acts with "little boys" (DeCarr depo. at 65). At trial, Judge Coe refused to allow any questioning of Barbara regarding her sexual relationships with 12 and 13 year old boys (R. 235). In her deposition, Barbara indicated Jenice DeCarr, Harold DeCarr, and Michelle Hays had all lied about her (DeCarr depo. at 65-66). She also indicated in her deposition that as for her daughter Susan LaBlanc, "We do not have a relationship." (DeCarr depo. at 36).

Barbara also denied telling the police in June, 1984, to specifically check the yard and under the house, but then stated that "I don't remember saying it" (R. 235-36).

According to Barbara, Lisa never complained that Wayne had made any sexual advances, but did complain about other people like Bob McKelvin (R. 236-37). Barbara also found out that after 1983, Wayne had gone to bed with another woman but denied that she was angry that her boyfriend was having an affair (R. 237). Finally, Barbara denied that Lisa's boyfriend harmed Lisa, and that the ring he gave Lisa was a "pre-engagement" ring (R. 237-38).

The next "key witness" was Kathy Stevens, who testified that she was never known as Kathy Sample (R. 242). On March 24, 1983, Stevens went to Lisa's house; on the previous day, both girls had been suspended from school, and Stevens went to Lisa's because "Lisa and me had made plans to run away because Lisa could not face her mother" (R. 249). Stevens arrived between 6 and 6:20 a.m. (Id.). After receiving no response to her knocking at the front door, Stevens went to Lisa's window and "she dragged me through the window and she said, ‘Kathy, I'm not going to run away. I talked about everything with my mother and we are going to deal with it’" (R. 250). After talking for a few more minutes, Stevens left (Id.). She forgot her purse and went back between 8 and 9:00 a.m; it could have been after 9:00 a.m. (R. 251). No one went with her when she went back to the house; someone named Kim "went the third time" (R. 251). When she went back to get her purse, there was a "loud crash" and when Stevens opened the front door, she saw Lisa and Wayne "struggling on the couch" (R. 252). Wayne was on top of Lisa "trying to take her clothes off and that's about it" (R. 252). Lisa "asked me to call the police" and she believed that Wayne yelled "get out" (R. 252-53). She also saw "a man sitting in the corner chair" maybe four or five feet away "just sitting there watching it like nothing was going on" (Id.). Stevens had never seen the man before (Id.). Lisa was wearing a pink robe and "I believe she still had her rings on that morning" but no earrings (R. 253-54). Stevens left, did not call the police, and instead "went up to the store" and ran into Lisa's boyfriend (R. 254). She advised the boyfriend that she wanted to call the police, but she did not because "it was a little bit of being scared and not knowing what to expect" and Lisa's boyfriend "just walked away like it was nothing" (Id.). She then went to school because she did not want to get involved (R. 255).

Stevens and another girlfriend, Kim, went back to Lisa's house at some point later, but it was the friend who knocked at the door, not Stevens, and her friend may have spoken with Wayne Tompkins (R. 255). However, she went alone "[a]round lunchtime to one o’clock, I had been back because I still had not gotten my purse because of the second time I went back." (R. 256).

At trial, her testimony was around lunchtime to 1:00 Stevens went back to the house because she still had not gotten her purse; she knocked at the door and Wayne answered (R. 256). She asked if Lisa was there, and he said no, that she had left with her mother (Id.).

Subsequently, Stevens had a discussion with Barbara DeCarr, who had come to Stevens' house to ask her if she had seen Lisa (R. 257). Stevens told her that Lisa "had left for New York" (Id.). Barbara asked if Stevens expected to hear from her, and Stevens replied "Yes, she will call me when she gets there" (Id.). Stevens said this was a lie but that she believed at the time that Lisa had run away (R. 258). Until the body was discovered the following year, Stevens thought Lisa had run away. She testified before the jury "it was after the body was discovered [that she] came forward with the information that [she told the] jury" (Id.).

On cross-examination, Stevens said that each time she went to Lisa's house that day, Wayne was there, and confirmed that the first time was between 6 and 6:30, and she did not know if Barbara was home at the time (R. 259). She reaffirmed that Lisa did not have her earrings on that day (R. 260). She saw Lisa's boyfriend at the corner store after she left Lisa's house at 6 or 6:30, and he was drunk (R. 260). She denied that Barbara had other boyfriends besides Wayne, but acknowledged that in her deposition she said otherwise (R. 261-62). Stevens did not come forward until after the body was found because she "realized that something more was involved than just her disappearing" and told prosecutor Benito her story after he called her (R. 263). She initially told Benito that she knew nothing about what happened to Lisa that day, and that this conversation was in mid-March 1985. She then recounted that, after "talking to her pillow" one night, she decided to call Benito again and tell him her story (R. 264). Stevens denied telling different versions of the events to different people, but acknowledged lying to Barbara DeCarr and initially to Benito (R. 265). She reaffirmed that she did not call the police after seeing the struggle between Lisa and Wayne, and it did not make her suspicious "because I figured, you know, she would eventually get it under control, and it just didn't dawn on me" (R. 266).

Detective K.E. Burke testified that among his duties in the case was to interview Barbara DeCarr, who he interviewed 3 times (May 28th, June 1st, and June 6th) while DeCarr was in the hospital (R. 277-78). Burke also interviewed Mr. Tompkins on June 12, 1984 (R. 278). Wayne said the last time he saw Lisa was in the afternoon of March 24, 1983, wearing a maroon blouse and blue jeans and going out the back door and said she was going to the store (R. 284). Wayne denied ever saying that Lisa ran away the day she disappeared (Id.).

On cross-examination, Burke acknowledged speaking to numerous witnesses in addition to Barbara and Wayne (R. 285). Burke was unsure if he spoke with a Wendy Chancey (R. 286). He was unsure if he spoke with a Bob McKelvin; he claimed that he did not recall the name of a black man who was a neighbor of the DeCarrs and whether he spoke with him (R. 287). Burke was aware of someone having made sexual advances toward Lisa DeCarr, and "[i]f it was Bob McKelvin who lived next door, yes, I was aware of some information regarding that" (Id.). Burke never followed up on that investigation (Id.), and McKelvin was never interviewed by the police (R. 288).

Burke testified that the height from the floor of the DeCarr house to the ground was about 36 inches, but acknowledged that during his deposition he said it was 16 inches at the greatest point between the floor and the ground, and that his deposition testimony "was correct" (R. 288). Someone looking from neighboring houses could see the yard area of the DeCarr house (R. 289). The investigation revealed that Barbara had been arguing with Wayne in 1983 and 1984 about his having other girlfriends or affairs (Id.), and that Lisa had a record as a run-away (R. 293). He denied that Barbara told the police to specifically look under the house, but she did say to check the yard (R. 297). Furthermore, Burke acknowledged setting up a tape recorded phone call between Barbara and Wayne, in which Wayne made no admissions (R. 298).

The final "key witness" for the State was Kenneth Turco, who was serving a 30 year prison sentence for burglary and grand theft (R. 301-02). Turco also had been previously convicted of grand theft, forgery, and burglary (R. 302). He was presently charged with an escape, to which he pled guilty (R. 303), and was awaiting sentencing (R. 304). While in the jail, he made contact with Wayne Tompkins after he "was placed in the cell with him" (R. 305). Turco said that he did not talk with Wayne about the specifics of the case at that time, "but he talked a lot about his case" (R. 305).

Turco and Wayne were eventually put in another cell together and they continued talking about the case (R. 306-07). In early to mid-June, Turco was talking to Wayne about his own case and then asked him what had happened to Lisa DeCarr (R. 308). Turco then clarified that "I didn't ask. He volunteered the information, you know" (Id.). Wayne told him that after Barbara had sent him home to get newspapers, he went home, saw Lisa on the couch and "asked her for a shot of pussy" and she said no (R. 309). Then, Wayne told Turco, Lisa said "I stayed home from school. I don't feel good" and then Wayne tried to force himself on Lisa and she kicked him and he strangled her (Id.). Wayne did not tell Turco what he strangled Lisa with (Id.). Then, Wayne said that he panicked because "he didn't know what to do with the body because Barbara would be coming back to the house, so he buried the body under the house" (R. 310). He also said he buried some clothing "to make it look like she ran away," specifically it was a pair of jeans, a sweatshirt or blouse, "and he did say a pocketbook for sure" (R. 310). Wayne also said that he had had sex with Lisa in the past and that "sometimes she would and sometimes she wouldn't" (R. 311). After receiving this information, Turco contacted prosecutor Benito, who visited him personally, and promised only "my safety in the jail and that you would tell the judge at my sentencing hearing that I cooperated and I came forward and testified in a murder trial" (R. 311).

On cross-examination, Turco did not know whether Wayne had copies of his depositions and police reports in the cell they shared together, that "I never messed with his papers" and only saw a coroner's report "after I had talked to Mr. Benito on a Saturday evening" (R. 312). Turco had pled guilty to the escape charge, but did not know if his sentencing had been postponed until after his testimony in the Tompkins trial (R. 314). Turco said that he was not hopeful that his testimony would help him on the escape sentence because he would still be doing time anyway (R. 315). However, it had crossed his mind that his testimony would help him (Id.).

Turco acknowledged that there was a confidential informant system in prison and he had been part of that for the last 4 or 5 years, and that he was "trustworthy" (R. 317). Even though he was an informant, going through another prisoner's papers "is something you don't do, not in the prison system or in society or any place else" (Id.).

Turco was the State's final witness, and the defense presented no testimony.