IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-277

WAYNE TOMPKINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE THIRTEENTH JUDICIAL CIRCUIT,

IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

MARTIN J. MCCLAIN

Attorney at Law

Florida Bar No. 0754773

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court's

summary denial of a post-conviction motion. The following

symbols will be used to designate references to the record in

this appeal:

"R." -- record on direct appeal to this Court;

“1PC-R.” -- record on first Rule 3.850 appeal to this

Court;

"2PC-R." -- record on second 3.850 appeal to this Court;

“3PC-R.” -- record on third 3.850 appeal to this Court;

“4PC-R.” --record on this 3.850 appeal to this Court.

ii

REQUEST FOR ORAL ARGUMENT

Mr. Tompkins has been sentenced to death. The resolution

of the issues involved in this action will therefore determine

whether he lives or dies. This Court has not hesitated to allow

oral argument in other capital cases in a similar procedural

posture. Lightbourne v. State, 742 So. 2d 238 (Fla. 1999);

Mills v. State, 786 So. 2d 532 (Fla. 2001) Swafford v. State,

828 So. 2d 966 (Fla. 2002); Roberts v. State, 840 So. 2d 962

(Fla. 2002); Wright v. State, 857 So. 2d 861 (Fla. 2003). A

full opportunity to air the issues through oral argument would

be more than appropriate in this case, given the seriousness of

the claims involved and the stakes at issue. Mr. Tompkins,

through counsel, accordingly urges that the Court permit oral

argument.

iii

TABLE OF CONTENTS

Page

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

REQUEST FOR ORAL ARGUMENT................................... ii

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

TABLE OF AUTHORITIES........................................ v

STATEMENT OF THE CASE....................................... 1

STATEMENT OF THE FACTS...................................... 4

SUMMARY OF THE ARGUMENT..................................... 26

STANDARD OF REVIEW.......................................... 27

ARGUMENT

BECAUSE THE FILES AND RECORDS DO NOT SHOW THAT HE WAS

CONCLUSIVELY ENTITLED TO NO RELIEF, THE LOWER COURT ERRED

IN DENYING MR. TOMPKINS AN EVIDENTIARY HEARING ON HIS CLAIM

THAT THE STATE WITHHELD FAVORABLE EVIDENCE IN VIOLATION OF

BRADY V. MARYLAND AND/OR PRESENTED MISLEADING EVIDENCE

AND/OR DEFENSE COUNSEL UNREASONABLY FAILED TO DISCOVER AND

PRESENT EXCULPATORY EVIDENCE. THE NEW INFORMATION UNDERMINES

CONFIDENCE IN THE RELIABILITY OF THE ADVERSARIAL TESTING

I. THE LOWER COURT’S FAILURE TO HOLD AN EVIDENTIARY

HEARING CONSTITUTES REVERSIBLE ERROR................... 28

B. The Standard for Receiving an Evidentiary

Hearing........................................... 29

C. The Lower Court’s Analysis Demonstrates that

the Court Did Not Take Mr. Tompkins’ Allegations

as True and Did Not Determine that the “Motion

and the Files and Records Conclusively Show that

Mr. Tompkins is Entitled to No Relief”............ 31

iv

1. Mr. Tompkins’ allegations were not taken as

true......................................... 31

2. The circuit court failed to give proper weight to

Mr. Davis’ affidavit, erroneously required Mr.

Tompkins to prove the outcome of the trial would

have been different, and conducted no cumulative

analysis.......................... 35

a. proper prejudice standard under

Giglio.................................. 36

b. proper prejudice standard under

Brady................................... 37

c. cumulative consideration of all

i. evidence not presented at trial

which impeaches Kathy

Stevens............................ 42

ii. evidence not presented at trial

which impeaches Barbara DeCarr..... 48

iii. evidence not presented at trial

which impeaches Kenneth Turco...... 58

iv. cumulative consideration........... 61

v. conclusion......................... 75

CONCLUSION.................................................. 75

CERTIFICATE OF SERVICE...................................... 76

CERTIFICATION OF COMPLIANCE................................. 76

TABLE OF AUTHORITIES

CASES

Banks v. Dretke

540 U.S. 668 (2004)........................ 38, 50, 53, 63

Borland v. State

848 So. 2d 1288 (Fla. 2003)............................ 27

v

Brady v. Maryland,

Cardona v. State

826 So. 2d 968 (2002).................................. 41

Gaskin v. State

Giglio v. United States

Gorham v. State

597 So. 2d 782 (Fla. 1992)............................. 47

G

uzman v. State

868 So. 2d 498 (Fla. 2003)............................. 37

Jencks v. United States

353 U.S. 657 (1957).................................... 44

Johnson v. Singletary

647 So. 2d 106 (Fla. 1994)............................. 30

Kyles v. Whitley

Lemon v. State

498 So. 2d 923 (Fla. 1986)............................. 30

Lightbourne v. State

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

Lightbourne v. State

742 So. 2d 238 (Fla. 1999)..................... ii, 30, 41

Maharaj v. State

684 So. 2d 726 (Fla. 1996)......................... 27, 30

Mills v. State

786 So. 2d 547 (Fla 2001).............................. ii

Mordenti v. State

894 So. 2d 161 (Fla. 2004)............................. 41

vi

Roberts v. State

678 So. 2d 1232 (Fla. 1996)............................ 30

Roberts v. State

840 So. 2d 962 (Fla. 2002)............................. ii

Rogers v. State

783 So. 2d 980 (Fla. 2001)..................... 38, 39, 75

Roman v. State

528 So. 2d 1169 (Fla. 1988)............................ 47

Scott v. State

657 So. 2d 1129(Fla. 1995)............................. 30

State v. Gunsby

670 So. 2d 920 (Fla. 1996)............................. 36

State v. Menses

392 So. 2d 905 (Fla. 1981)............................. 2

Stephens v. State

748 So.2d 1028 (Fla. 1999)............................. 27

Strickland v. Wahington

466 U.S. 668 (1984)........................ 27, 29, 36, 42

Strickler v. Greene

527 U.S. 263 (1999)................................ 34, 38

Swafford v. State

828 So. 2d 966 (Fla. 2002)............................. ii

Swafford v. State

679 So. 2d 736 (Fla. 1996)............................. 30

Tompkins v. Dugger

Tompkins v. Moore

Tompkins v. State

502 So. 2d 415 (Fla. 1987)...................... 1, 29, 53

Tompkins v. State

vii

872 So. 2d 230 (Fla. 2003).................. 2, 50, 57, 63

Tompkins v. State

894 So. 2d 857 (Fla. 2005)............................. 3

United States v. Agurs

427 U.S. 97 (1976)..................................... 37

United States v. Bagley

473 U.S. 667 (1985).................................... 37

United States v. Berger

295 U.S. 78 (1935)............................. 38, 50, 63

Wright v. State

857 So. 2d 861 (Fla. 2003)............................. ii

1

STATEMENT OF THE CASE

Mr. Tompkins was indicted for first-degree murder and pled

not guilty. Trial commenced September 16, 1983, and a jury

found Mr. Tompkins 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).

In 1989, Mr. Tompkins filed a post-conviction motion, and

the circuit court held an evidentiary hearing. The circuit

court found trial counsel’s performance was deficient regarding

the penalty phase, but denied relief. This Court affirmed the

denial of relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla.

1989). Mr. Tompkins filed a federal habeas petition. The

petition was subsequently denied. The Eleventh Circuit

affirmed. Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999),

cert. denied, 121 S.Ct. 149 (2000).

After the signing of a death warrant in 2001, Mr. Tompkins

filed a number of motions, including a second Motion to Vacate

under Fla. R. Crim. P. 3.850 (2PC-R. 182-307). The circuit

court granted an evidentiary hearing on Claim V of the Rule

3.850 motion pertaining to the sentencing judge’s error in

failing to independently weigh aggravating and mitigating

2

circumstances and in failing to disclose to Mr. Tompkins the

fact that the State prepared the findings in support of the

death sentence. After the evidentiary hearing, the court

granted sentencing relief on Claim V and vacated Mr. Tompkins’

all other claims without an evidentiary hearing, including Mr.

Tompkins’ request for DNA testing (Id.). Mr. Tompkins appealed

the denial of these claims, and the State cross-appealed the

grant of sentencing relief. This Court affirmed the circuit

court’s denial of some claims and reversed the grant of

sentencing relief. Tompkins v. State, 872 So. 2d 230 (Fla.

In August of 2002, while Mr. Tompkins’ appeal was pending,

Mr. Tompkins filed a motion to relinquish jurisdiction under

State v. Menses, 392 So.2d 905 (Fla. 1981), in order to provide

the circuit court with jurisdiction to consider a Rule 3.850

motion based upon new evidence. This evidence was discovered as

a result of records the State first disclosed in 2001. These

records revealed that James Davis had made statements

contradicting Kathy Stevens. Follow up investigation led

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.”

3

counsel to locate James Davis, who provided an affidavit.

However, this Court refused to relinquish jurisdiction.

At the same that he filed his motion to relinquish, Mr.

Tompkins filed a Rule 3.850 motion in the circuit court based

upon the Davis affidavit. Mr. Tompkins also filed a Rule 3.853

motion seeking to have DNA testing conducted on the remains that

had been introduced into evidence as those of Lisa DeCarr.

The circuit court entered an order dismissing both motions

on August 22, 2003, saying that it lacked jurisdiction. Mr.

held that the circuit court properly dismissed Mr. Tompkins’

motions for lack of jurisdiction, but allowed Mr. Tompkins to

the date on which Mr. Tompkins had originally filed the

dismissed motion. Tompkins v. State, 894 So. 2d 857, 859 (Fla.

On March 18, 2005, Mr. Tompkins re-filed his Rule 3.850

previous motion to vacate on October 9, 2003.

Tompkins to re-file his Rule 3.853 motion. However, Mr.

Tompkins did not re-file that motion in light of this Court’s

opinion in the prior appeal saying “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.” It seemed to

Mr. Tompkins that that ruling precluded DNA testing.

4

motion (4PC-R. 139-74). The State filed a response (4PC-R. 84-

100). The circuit court heard oral argument (Supp. 4PC-R. 24-

49). The court issued an order summarily denying relief,

finding that Mr. Tompkins had failed to adequately plead that he

had exercised due diligence in locating James Davis, and even if

he had, the presentation of the Davis evidence at trial would

not have necessarily resulted in an outcome that “would have

been any different” (4PC-R. 53-54). Mr. Tompkins filed a motion

for rehearing, which the court denied (4PC-R. 39-47, 3-38). Mr.

Tompkins filed a notice of appeal (4PC-R. 1-2).

STATEMENT OF THE FACTS

The core of the State’s case, as established by a Bill of

Particulars, was that Mr. Tompkins killed Lisa DeCarr “between

it presented 8 witnesses at trial, the State advised 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

confirmed that his theory was that the offense occurred at about

9:30 or 10:00 a.m. on that date (PC-R. 87).

5

“circumstantial,” save for alleged “direct evidence” of a

statement of Mr. Tompkins elicited by snitch Turco (R. 117).

The State’s theory, as outlined in its opening statement,

was as follows:

Wayne Tompkins and Barbara DeCarr were boyfriend

and girlfriend, Mr. Tompkins 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 Mr. Tompkins’ 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, Mr.

Tompkins came by his mother’s house to assist, along

with Barbara, with the packing (R. 110-11). At some

point, at Barbara’s request, Mr. Tompkins 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, Mr. Tompkins told Barbara that Lisa was on the

couch watching TV (Id.). However, at 3:00 p.m. that

day, Mr. Tompkins told Barbara that Lisa had run away

(Id.). Barbara went home, did not find Lisa, and

contacted the police; she questioned Mr. Tompkins, 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

Enforcement, the grave was “one foot ten inches after the body was

removed, and that was including the four inches we went down below

the body” and was “three feet five inches long” (R. 155-56). In

order to dig such a grave, one would have to “lay down or kneel

under the house” because “[y]ou could not walk underneath the

house” (R. 157). Because there were other houses in the area, if

it was daylight, neighbors “could see someone [dragging something

under the house]” (R. 158).

6

her neck and some jewelry (R. 113).

skull was fully wrapped and then this cloth was kind of underneath

part of the body” (R. 153-54). The cloth was “more of a white”

color rather than pink (R. 153).

7

Donald Snell testified at trial that he met Barbara DeCarr

in May, 1984 (R. 123-24). Snell headed a volunteer group that

located missing children, and employed the services of a psychic

to do so (R. 124). In June, 1984, Snell again met with Barbara,

who assigned him power of attorney to search for Lisa (R. 129).

Snell subsequently spoke with Wayne Tompkins, who told him that

“if we found anything, to contact him and not Barbara, due to

her being in the hospital, and give him the information” (R.

130). Barbara DeCarr had checked herself into the psychiatric

ward of a hospital in Tampa. On or around June 6, 1984, Snell’s

organization conducted a search of Barbara’s former house (R.

130-31). Snell recounted that “the house was raised in the

front part” and when they looked under it, “we could see a

depression which we were sure was a grave.” When someone

reached under the house, “the earth gave way” and “saw the

bones” (R. 132). The depression was “on the right hand side

under the front part, the front section, what was the porch” and

was about “two to three feet under the house” (R. 133; 135).

The police were then contacted (R. 135). On cross-examination,

Snell testified that it was not difficult to go under the house

to see where the depression was located, and that there were

houses on both sides of the DeCarr house, and people from those

houses could see what they were doing (R. 138-39). Snell did

8

not know if Barbara knew where the body was before he went

there, but “just didn't believe that she was telling me the

whole truth” (R. 138; 40).

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, 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

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

“[o]ther than Mrs. DeCarr’s description of the strange tooth in

her daughter’s mouth” there was no basis for the dental

identification (PC-R. 233).

9

the body had been in the grave, and that it is possible it could

have been as little as six or seven months prior to June, 1984

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 had been separated from

her husband Harold since 1980; Harold lived in New York (R.

199). She first met Mr. Tompkins in May, 1981, when she was

living with her daughter, Susan LaBlanc, Susan's boyfriend Greg,

December of 1983. This was eight or nine months after Lisa’s

March of 1983 disappearance.

10

and her other children Lisa, William, and Jamie (Id.). Mr.

Tompkins 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 Mr.

Tompkins woke her up and told her that Lisa had a headache and

wanted to stay home from school (R. 204). Barbara got up around

8 a.m., by which time Mr. Tompkins had left to take Barbara’s

son Jamie to school (R. 205). Before she left the 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

(Id.).

Barbara left the house at 9:00 a.m. with just Lisa at home

(R. 208). She went to Mr. Tompkins’ mother’s house to help her

pack. When she got there, Mr. Tompkins was there with other

same witness who had told the police where to look for the body.

In fact, Kathy Stevens (if she can be believed) testified that

260).

11

people (Id.). Barbara stayed there until 3:00 that afternoon

(R. 209). At some point she sent Mr. Tompkins home to get

newspapers to use as packing material; she did not know how long

Mr. Tompkins was gone, and he returned with newspapers (R. 209-

the couch watching TV (R. 210). At some point after returning

with the newspapers, Mr. Tompkins left again with his stepfather

(Id.).

Barbara further testified that at 3:00 that afternoon Mr.

Tompkins told her that Lisa “was gone, she had run away” (R.

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).

that was provided to the police before Kathy Stevens provided

her information about March 24th, Barbara had a different story.

She stated: “Wayne had taken Jamie (my youngest son) to school

just before 8:00 am. and then went to his mother’s house for

breakfast and coffee. He stayed at his mother’s house until

approximately 10:00 am. when he left to get some newspapers to

pack dishes with.”

evidence in 1989 show the following notation at 4:30 pm. on June

1, 1984: “Barbara went on to state . . . that Det. Gullo had

been in touch with her, and she again told him, as she had when

Lisa first disappeared, that Wayne had been the last person to

see Lisa alive!! Det. Gullo insisted that she did not tell him

this.” (Exh. 10). The prosecutor stipulated to the accuracy of

Det. Gullo’s representations (PC-R. 301).

12

Barbara then contacted the police from Mr. Tompkins’ mother’s

police, however, she 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.

Mr. Tompkins’ mother’s house (R. 214).

disclosed a legible copy in 1989 would have revealed that the

two pages should be read as one document), Barbara DeCarr, the

“Complainant” (according to page one) said “she last saw Lisa at

the listed residence at the listed time. Compl. Stated that

everything was fine at home and has no trouble with Lisa running

away or anything. Compl. Stated Lisa was having some trouble in

school but nothing to cause her to runaway” (according to page

two). The first page revealed the time the complainant last saw

proceedings did the State reveal that Barbara DeCarr’s testimony

that she told the police that Mr. Tompkins was the last one to

see Lisa alive was contradicted by both Det. Gullo and the

“blue jeans, maroon shirt, diamond ring, cross earrings.”

Implicit in the report was the fact that this was the attire

Lisa was wearing at the time she was last seen by the

complainant, Barbara DeCarr at 2:00 p.m. Kathy Stevens

she saw her (R. 260). In 1989, Mr. Tompkins attempted to call

Kathy as a witness. When the prosecutor objected, the court

required the parties to confer with Ms. Stevens and report to

the court what she indicated. At that time, it was placed in

the record that Kathy Stevens said that Lisa “always wore the

rings all the time, and particularly there was a ring she

remembered on the index finger that was flat like an initial

ring, is the way, I believe, the word she used.” (PC-R. 22).

13

On cross-examination, Barbara testified that shortly after

March 23, 1984, she had a discussion with Kathy Stevens, who was

that after Lisa disappeared, several people had informed her

Sample (R. 242; Stevens Depo. at 15). She had one discussion

with Barbara DeCarr after Lisa disappeared when Barbara came to

Ms. Stevens’ house (R. 257, Depo. 20). Police records show that

Detective Gullo made a notation dated April 26, 1983, indicating

that he “received a telephone call from Mrs. DeCarr who advised

that her son told her that Kathy Sample told him that Lisa

called her. Mrs. DeCarr then contacted Kathy who told Mrs.

DeCarr that Lisa called her yesterday (25 Apr.) from N.Y. and

told her she was O.K. and that she was pregnant. Kathy could

not supply any further information.” Ms. Stevens acknowledged

in her testimony that this was a lie she told Barbara because

Lisa had been planning to run away and had told Ms. Stevens, “if

anything happens, I want you to tell my mom that I’m going to be

all right.” (Stevens depo. at 20). When Lisa disappeared, Ms.

Stevens assumed that she had run away as planned and so she told

the lie that she had promised to tell (R. 257-58).

with Barbara about these sightings shows that Barbara was never

able to provide a name for any of the numerous individuals she

claimed had told her they had seen Lisa after her disappearance.

For example, the September 2, 1983 entry stated, “I received a

phone call from Mrs. DeCarr who stated that she was told by

friends of Lisa that they had seen Lisa on East 7th Ave. at

about 46th St. Lisa was standing in the Jewel “T” parking lot

speaking with two or three other w/f’s. The informants told

Mrs. DeCarr that Lisa might be living in a trailer park which is

across the street. Mrs. DeCarr told the informants that they

should call the police the next time they see her. Mrs. DeCarr

was advised that they didn’t want to get involved with the

police.” The only time Mrs. DeCarr supplied a name according to

Det. Gullo’s log was when she reported Kathy Stevens’ lie that

Lisa had called from New York. And when making that report, she

14

not until June, 1984, after she found out Mr. Tompkins was

having an affair with another woman, that she told the police of

gave Det. Gullo the wrong last name. Det. Gullo according to

his logs was never able to speak with Kathy.

understanding, “Apparently, the mother didn’t know she was

suspended, Judge, and that is one of the reasons Kathy thought

she ran away, because she didn’t want the mother to find out she

was suspended” (PC-R 52). However, the school records reveal

that there was a March 24th phone conference with Barbara DeCarr

“who called to inform that Lisa had left.” The records also

show that on March 25th, “mom says child ran away yesterday

(24th). Thinks child may be pregnant.” Similarly, records from

the Missing Child organization indicated that Barbara contacted

the organization on March 29, 1983, and reported Lisa as

missing, saying, “She may be on drugs and she may be pregnant.”

Barbara DeCarr did not mention to Det. Gullo, the policeman

And in Barbara DeCarr’s deposition she testified that Kathy

Sample (aka Stevens) was the person who told Barbara that Lisa

was pregnant (DeCarr depo. at 33). But since according to Kathy

and according to the police records, that conversation did not

happen until April 25th, it is unclear how Barbara knew on March

25th that Lisa “may be pregnant” unless Lisa told her on the day

she disappeared.

Barbara DeCarr had told the police to look after she committed

herself to a psychiatric ward. According to Detective

Rademaker, Barbara DeCarr told him, “she couldn’t give any

reason as to why she thought the body was under there, but she

thought she thought [sic] the body was under there, but she

thought that it was someplace on the property and possibly under

the under the house.” (R. 170). This statement was made after

Barbara had told both the police and the Missing Children

organization that she had contacted to search the yard at the

15

She did not become suspicious or tell the police anything when

Mr. Tompkins gave her what she later claimed was an incorrect

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 Mr. Tompkins on the phone

while he was incarcerated awaiting trial in order to solicit a

confession from him, but Mr. Tompkins did not admit any

involvement (R. 229). Also while Mr. Tompkins was in jail,

Barbara sent him letters with copies of photographs of skeletal

Osborne St. residence and she had been informed that the body

had not been found. In fact, Detective Burke reported that on

June 4, 1984 at 2:30 p.m. he had “checked the yards located at

the address and found no areas that looked suspicious as to a

grave.” This was pursuant to Barbara’s suggestion on June 1st:

“She stated that she talked to Det. Gullo via phone and had

asked him to go check the back yard of the residence of 1225 E.

Osborne because she now suspects that her daughter may be buried

in the back yard.”

the date that Lisa was reported missing, the “compl.” who was

Barbara was the last person to see Lisa “at the listed residence

at the listed time” and provided the description of the

clothing.

16

remains and details of how nice Lisa’s funeral was, although she

initially denied it until she was shown the letters (R. 234).

She also testified that on March 24, 1983, Mr. Tompkins 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 her ex-husband sexually abused Lisa

also denied being in a fight in a bar when someone blamed her

for Lisa's death, saying it was more of an “argument” than a

provided the following statement when seeking treatment: “1st

[husband] used to beat her. he had m.s. 2nd – got along good.

He ran around on her. He had sexual relation with daughter that

split them up.” The Missing Child records contain the notation

that on 4/12/84 “Mrs. DeCarr called.” During the conversation,

she indicated “that Lisa’s father had sexually abused his

daughter by a previous marriage and one or two of their

daughters.”

having difficulty controlling or disciplining her children. She

related that she would threaten “to send them to their father,

from whom she is separated. Mrs. DeCarr related that her

husband had sexually abused her daughter.”

statements when seeking treatment for “nasal bridge contusion –

laceration below orbital rim” indicated that “pt became involved

in fight with another victim’s mother in a bar\because pt. was

said to have some of the responsibility of both deaths.”

17

June, 1984, to specifically check the yard and under the house,

but then stated that “I don’t remember saying it” (R. 235-36).

Barbara also testified that she did not practice

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

Harold DeCarr, and Michelle Hays had all lied about her (DeCarr

depo. at 65-66). She also said regarding her daughter Susan

LaBlanc, “We do not have a relationship” (DeCarr depo. at 36).

“Jenice DeCarr who is, the stepdaughter of Barbara DeCarr”

stated, “that Barbara DeCarr was heavily into Witchcraft and

while living in New York, Barbara participated in witchcraft to

a great extent.” Jenice also reported “that her brother Harold

DeCarr, Jr. was seduced by Barbara when he was 12 yrs. old.”

Det. Burke noted that “this was confirmed by Harold as we were

on a three party telephone conversation at the time. He stated

that he was in fact, 12 yrs old when this took place.”

Det. Burke reported that Michelle Hayes, “the sister to

Lisa DeCarr and the daughter of Barbara DeCarr,” made similar

statements. Michelle “stated she knew of one time that her

mother had at least three or four young boys in her bedroom

locked up with her ranging from ages 12 to 14 yrs and that she

knew that there was sex acts going on and that one of the subjs

that was in the bedroom with her mother was Harold, Jr., her

stepbrother. She stated that she is certain that they were

involved in some type of sex act with their mother. She said it

got so bad, that the 12 and 14 yrs old boys would get in a fight

over who was to have her mother’s affections.”

18

According to Barbara, Lisa never complained that Mr.

Tompkins had made any sexual advances, but did complain about

other people like Bob McKelvin (R. 236-37). Barbara found out

that after 1983, Mr. Tompkins had gone to bed with another woman

but denied she was angry at him over the affair (R. 237).

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

Lisa’s because “Lisa and me had made plans to run away because

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

March 23, 1983, for smoking under a tree off campus. The school

records also show that marijuana was found in Kathy’s purse.

Lisa reportedly said, “if anything happens, I want you to tell

my mom that I’m going to be all right” (Stevens depo. at 20).

19

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

When she went back to get her purse, there was a “loud crash”

and when Stevens opened the front door, she saw Lisa and Mr.

Tompkins “struggling on the couch” (R. 252). Mr. Tompkins 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 Mr. Tompkins 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

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

girlfriend, went to the house with me. It was 8 o’clock. And

we went. And she was standing by the garage where the alley is

by her house. And Kim told me, ‘Don’t call the police. Don’t

get involved.’” (Stevens depo. at 11). When she first told

Mike Benito on March 12, 1985, of this March 24, 1983, incident,

she indicated that “[a]t 8:00 a.m. [she] returned because she

had left her purse in Lisa’s bedroom.”

whole time when I was coming back and forth” (Stevens depo. at

13). This man was not mentioned to Mike Benito on March 13,

1985, when she first informed him that she had seen Lisa on

March 24, 1983.

20

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

She then went to school because she did not want to get involved

At trial, her testimony was that Stevens and her

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).

purse and I left.” (Stevens depo. at 10) “I shut the door.

And I told Kim, I said, ‘Come on, Kim we got to call the

police.’ She said, ‘Don’t get involved.’ And I said, ‘Why?’

And she said, ‘Because you don’t need to.’ And I said, ‘Okay.’

And I went to the store and that’s when I ran into Junior.”

1982, when she and Lisa were in bed when Mr. Tompkins came in,

dropped his towel, and “attempted to crawl into bed with us” (R.

246). He was trying to fondle Lisa, and Lisa “dug her nails

into him and I believe she did hit him, but I'm not sure” (R.

246-47). Mr. Tompkins was “telling her to stop and calling her

a bitch and vulgar names” and then he said “I’m going to kill

you” and “then he looked at Lisa and then he got up, and he

looked disgusted and he left the room” (R. 247). Mr. Tompkins

was in the room fifteen or twenty minutes (Id.). The first time

Stevens told anyone of this incident was when she received a

phone call from the prosecutor (R. 247). She did not say

anything before because Lisa had asked her not to (R. 248).

According to Mike Benito’s file memorandum, Mr. Tompkins said,

“if you ever hit me again, I will kill you.” Stevens also

testified that one day, she and Lisa were walking to the store,

and Mr. Tompkins made the remark “I want to eat you out”; Lisa

“turned around, looked at him, and we walked away” (R. 248).

21

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

Later, 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.).

purse” when she left at 8:00 am. (Stevens depo at 10). She also

indicated that after she talked to Junior, “me and her [Kim]

went back to the school. I cleaned out my locker, and I went to

my stepmother’s and sat on her porch until she got back. And

then I met Kim at school at 2:00 o’clock. And she cut class.

And we went to go check on Lisa” (Stevens depo. at 14). “It

takes about twenty minutes to get from the school to her house.

It was about 2:20, 2:30, something like that” (Id.).

different. “Kathy stated she was scared and left but that she

returned later around 11:00 or 12:00 and knocked on the door and

Wayne answered and said that Lisa had left with her mother.

Kathy then sent a friend of her’s named Kim Lisenbee over to

Lisa’s house to check on Lisa and Kim reported back that Lisa

had apparently disappeared.”

was between Kim and Mr. Tompkins while she “was at the corner

waiting.” She stated, “I did not hear it” (Stevens depo. at

14). Obviously, this testimony rendered the statements

inadmissible hearsay, so by the time of trial the story had

changed.

22

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 next year, Stevens thought Lisa had run away. She told 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, Mr. Tompkins was there. 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 Mr. Tompkins, 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

call Kathy Stevens to the witness stand. Judge Coe sustained

Benito’s objection, but ordered the parties to speak to Kathy

Stevens in the hallway and place on the record what she said.

The parties then represented that Kathy Stevens “state[d] after

she talked with [Benito, he] arranged a visit with her and her

boyfriend in the jail because she didn’t have proper ID, and

[Benito] did make it easy for her to get in there. [Benito]

brought her over to visit the boyfriend” (PC-R. 20-21).

23

nothing about what happened to Lisa that day, and that this

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 Mr. Tompkins, 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

Barbara had indicated she went to Mr. Tompkins’ mother’s house

at “approximately 9:00 am.” (DeCarr depo. at 16). In Barbara’s

undated statement, she further indicated that Mr. Tompkins had

already arrived at his mother’s house and “stayed at his

mother’s house until approximately 10:00 am when he left to get

some newspapers to pack dishes with.” In her deposition, she

indicated Mr. Tompkins “could have been” gone “[t]wenty minutes,

half an hour.” (DeCarr depo. at 20). He subsequently left again

with his stefather (DeCarr depo. at 21). At the time of

Barbara’s deposition, the previous jailhouse informant had

committed suicide when police showed up to arrest him on new

burglary charges. After Barbara’s deposition, Mr. Benito

clearly decided he needed to find some additional evidence. By

the time of trial, Barbara’s account of time shifted (as did

Kathy’s), since their initial statements could not both be true

(between 8:00 am and 9:00 am, Barbara said she was home and Mr.

Tompkins wasn’t, while Kathy said during that time period Mr.

Tompkins was assaulting Lisa on the couch).

24

case was to interview Barbara DeCarr, who he interviewed 3 times

(May 28th, June 1st, and June 6th) while DeCarr was in the

June 12, 1984 (R. 278). Mr. Tompkins 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). Mr. Tompkins 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 Mr. Tompkins (R.

285). Burke was unsure if he spoke with a Wendy Chancey (R.

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,

28, 1984, at 1300 hrs. She called him from the psychiatric

ward. “She stated at that time, she also had a boyfriend that

was living with her at the time her daughter disappeared by the

name of Wayne Thompkins [sic] who had been arrested in Pasco

County for some rapes that he had committed in that county.”

However, the records from Pasco County clearly establish that

the second rape did not occur until May 30, 1984, and Mr.

Tompkins was not arrested until later that day.

officer on March 24th that she had seen Lisa that afternoon

getting into a brown Pinto at 12th and Osborne.

25

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 Mr. Tompkins 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 Mr. Tompkins, in

which Mr. Tompkins 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

26

contact with Wayne Tompkins after he “was placed in the cell

Tompkins about the specifics of the case at that time, “but he

talked a lot about his case” (R. 305).

Turco and Mr. Tompkins 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 Mr. Tompkins about

his own case and then asked him what had happened to Lisa DeCarr

volunteered the information, you know” (Id.). Mr. Tompkins 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, Mr. Tompkins told Turco,

Lisa said, “I stayed home from school. I don't feel good,” Mr.

Tompkins tried to force himself on Lisa, she kicked him, and he

strangled her (Id.). Mr. Tompkins did not tell Turco what he

strangled Lisa with (Id.). Mr. Tompkins said that he panicked

Kenneth Turco’s deposition occurred on July 15, 1985. At that

time, he said that in late June, 1985, he first talked to Wayne

Tompkins about his case, and that about a week and a half before

the deposition, Mr. Tompkins confessed to him (Turco depo. at

8).

of the confession forward in time. This was clearly in response

to defense counsel’s questions regarding Turco’s access to

depositions in Mr. Tompkins’ possession.

27

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 a pair of jeans, a

sweatshirt or blouse, and a pocketbook “to make it look like she

ran away” (R. 310). Mr. Tompkins 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”

On cross-examination, Turco testified he did not know

whether Mr. Tompkins 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

prosecution two weeks after Wayne Tompkins’ sentence of death.

He explained, “I walked down to court. I was about to offer Mr.

Turco a negotiation. I got in here and I looked at Mr. Turco

and I said, ‘This guy showed a lot of guts coming forward as a

jailhouse informant to testify as to what Mr. Tompkins told

him.’” (PC-R. 235). So, Benito “got up and walked down here and

announced the case, and said, ‘I nol-pros it.’” A grateful

Turco “looked at [Benito] like he had just been handed his first

bicycle at Christmas.” (PC-R. 236).

28

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.

Throughout Mr. Tompkins’ post-conviction proceedings,

substantial evidence contrary to the State’s case has continued

to come to light. That evidence is detailed in Argument II,

SUMMARY OF ARGUMENT

1. The circuit court erred in denying Mr. Tompkins’ Rule

3.850 motion without an evidentiary hearing. The motion alleged

facts regarding both Mr. Tompkins’ substantive claim and his

diligence in pursuing the evidence giving rise to that claim.

These facts are not conclusively rebutted by the record.

29

Accepting these facts as true, as is required, Mr. Tompkins is

entitled to an evidentiary hearing. One of the “three key

witnesses” at Mr. Tompkins’ trial was Kathy Stevens, who

testified that on the day Lisa DeCarr disappeared, she saw Mr.

Tompkins assaulting Lisa DeCarr and that she told Lisa DeCarr’s

boyfriend about the assault. When Mr. Tompkins’ counsel finally

located the boyfriend, James M. Davis, Jr., in 2002, Mr. Davis

attested in a sworn affidavit that he did not see Kathy Stevens

on the day Lisa DeCarr disappeared and that Kathy Stevens did

not tell him about Mr. Tompkins assaulting Lisa DeCarr. This

evidence substantially impeaches Stevens’ testimony and gives

rise to claims under Brady v. Maryland, 373 U.S. 83 (1963),

Giglio v. United States, 405 U.S. 150 (1972), and Strickland v.

Washington, 466 U.S. 668 (1984). Stevens’ testimony was

essential to the State’s case. Under either the “reasonable

probability” standard of Brady and Strickland v. Washington or

the “no effect” standard of Giglio, Mr. Davis’ affidavit

establishes that Mr. Tompkins is entitled to a new trial.

Further, when the evidence from Mr. Davis is considered

cumulatively with the trial evidence and the evidence previously

presented in postconviction, Mr. Tompkins’ entitlement to a new

trial cannot be questioned.

STANDARD OF REVIEW

30

Mr. Tompkins’ arguments present questions of law requiring

1999). Since no evidentiary development was permitted, Mr.

Tompkins’ allegations must be accepted as true. Borland v.

State, 848 So. 2d 1288, 1290 (Fla. 2003); Maharaj v. State, 684

So. 2d 726, 728 (Fla. 1996).

ARGUMENT

BECAUSE THE FILES AND RECORDS DO NOT SHOW THAT HE WAS

CONCLUSIVELY ENTITLED TO NO RELIEF, THE LOWER COURT

ERRED IN DENYING MR. TOMPKINS AN EVIDENTIARY HEARING

ON HIS CLAIM THAT THE STATE WITHHELD FAVORABLE

EVIDENCE IN VIOLATION OF BRADY V. MARYLAND AND/OR

PRESENTED MISLEADING EVIDENCE AND/OR DEFENSE COUNSEL

UNREASONABLY FAILED TO DISCOVER AND PRESENT

EXCULPATORY EVIDENCE. THE NEW INFORMATION UNDERMINES

CONFIDENCE IN THE RELIABILITY OF THE ADVERSARIAL

TESTING CONDUCTED IN ITS ABSENCE.

I. THE LOWER COURT’S FAILURE TO HOLD AN EVIDENTIARY HEARING

CONSTITUTES REVERSIBLE ERROR.

A. Introduction.

Lisa DeCarr’s boyfriend at the time of her disappearance

was “Junior” Davis. After years of searching and after the

State finally provided previously undisclosed documents about

“Junior” Davis in April of 2002. “Junior” Davis’s full name is

James M. Davis, Jr. Upon being contacted, Mr. Davis reported

that he had been Lisa DeCarr’s boyfriend in March of 1983. In a

sworn affidavit, Mr. Davis stated, “[t]he story of Kathy running

31

into me at the store the day Lisa disappeared is not true. If

anyone had told me that Wayne was attacking Lisa and she was

screaming for someone to call the police, I would have gone

directly there” (Affidavit of James M. Davis, Jr., paragraph 6,

4PC-R. 130). Mr. Davis elaborated:

If I thought there was anyway I could have helped

[Lisa], I would have, especially if she were in

trouble. This is why what Kathy said is not true. I

never saw Kathy on the morning that Lisa disappeared,

nor did Kathy ever tell me that she had just seen Lisa

being attacked by Wayne. In fact, the first time I

heard of anything having possibly happened to Lisa was

when I heard on the radio she was missing.

(Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130).

The information provided by James M. Davis, Jr.,

establishes that Kathy Stevens’ trial testimony was not truthful

information gives rise to constitutional claims under Brady v.

Maryland, 373 U.S. 83 (1963), Giglio v. United States, 150 U.S.

150 (1972), and Strickland v. Washington, 466 U.S. 668 (1984).

Kathy Stevens’ trial testimony was essential to Mr. Tompkins’

conviction and death sentence. The prosecutor relied upon

Stevens’ testimony to urge the jury to convict Mr. Tompkins,

arguing, “[h]er testimony alone . . . convicts this man” (R.

Kathy Stevens’ lack of credibility, there is no question that

Mr. Tompkins has shown his entitlement to relief. See Argument

32

346; see also R. 346-49, 360). The prosecutor relied upon

Stevens’ testimony to urge the jury to recommend a death

sentence (R. 444-45). The trial judge relied upon Stevens’

testimony to support the “committed during a felony” aggravating

circumstance (R. 679). On direct appeal, this Court relied upon

Stevens’ testimony to sustain Mr. Tompkins’ conviction and death

sentence. Tompkins v. State, 502 So. 2d at 418, 420-21. The

factual allegations regarding Mr. Davis and the constitutional

issues his affidavit raises are not conclusively refuted by the

record.

B. The Standard for Receiving an Evidentiary Hearing.

This Court has long held that a postconviction defendant is

“entitled to an evidentiary hearing unless ‘the motion and the

files and records in the case conclusively show that the

prisoner is entitled to no relief.’” Lemon v. State, 498 So. 2d

923 (Fla. 1986), quoting Fla. R. Crim. P. 3.850. “Under rule

3.850, a postconviction defendant is entitled to an evidentiary

hearing unless the motion and record conclusively show that the

defendant is entitled to no relief.” Gaskin v. State, 737 So.

2d 509, 516 (Fla. 1999). Factual allegations as to the merits

of a constitutional claim as well as to issues of diligence must

be accepted as true, and an evidentiary hearing is warranted if

33

the claims involve “disputed issues of fact.” Maharaj v. State,

684 So. 2d 726, 728 (Fla. 1996).

The same standard applies to successive motions to vacate.

Lightbourne v. State, 742 So. 2d 238, 249 (Fla. 1999)(remanding

for an evidentiary hearing to evaluate the reliability and

veracity of factual allegations impeaching trial testimony);

Swafford v. State, 679 So. 2d 736, 739 (Fla. 1996)(remanding for

an evidentiary hearing to determine if evidence would probably

produce and acquittal); Roberts v. State, 678 So. 2d 1232, 1235

(Fla. 1996)(remanding for evidentiary hearing because of trial

witness claim that she was pressured by the State and received

undisclosed consideration for her false testimony); Scott v.

State, 657 So. 2d 1129, 1132 (Fla. 1995)(holding that lower

court erred in failing to hold an evidentiary hearing and

remanding); Johnson v. Singletary, 647 So. 2d 106, 111 (Fla.

1994)(remanding case for limited evidentiary hearing to permit

affiants to testify and allow appellant to “demonstrate the

corroborating circumstances sufficient to establish the

trustworthiness of [newly discovered evidence]”).

This Court, like the lower court must accept that Mr.

Tompkins’ allegations are true at this point in the proceedings.

Lightbourne v. State, 549 So. 2d 1364, 1365 (Fla. 1989).

34

Mr. Tompkins’ Rule 3.850 motion pled facts regarding the

merits of his claims and his diligence which must be accepted as

true. When these facts are accepted as true, it is clear that

the files and records in the case do not conclusively rebut Mr.

Tompkins’ claims and that an evidentiary hearing is required.

C. The Lower Court’s Analysis Demonstrates that the Court

Did Not Take Mr. Tompkins’ Allegations as True and Did

Not Determine that the “Motion and the Files and

Records Conclusively Show that Mr. Tompkins is

Entitled to No Relief”.

1. Mr. Tompkins’ allegations as to his exercise of

diligence were not taken as true.

Regarding Mr. Tompkins’ counsel’s diligence in locating

James Davis, the circuit court ruled:

[T]he name of Junior Davis was known to Defendant as

far back as 1989 and yet the affidavit was not

completed until 2002, nearly 13 years later. . . . The

name Junior Davis was listed in the police reports and

as such was or could have been known to the movant or

his attorney. [citation omitted] Furthermore,

Defendant has failed to show that this new evidence

could not have been discovered by or through the use

of “due diligence” before the expiration of the

limitation period, nor did Defendant explain why it

took 13 years to locate Junior Davis other than to say

that Junior Davis or James Davis was a common name,

and as such his request for the Court to consider the

affidavit and the alleged newly discovered evidence is

still time-barred.

(4PC-R. 53-54).

Contrary to the circuit court’s ruling, Mr. Tompkins’ Rule

3.850 motion presented extensive factual allegations regarding

35

Mr. Tompkins’ diligence in attempting to locate Mr. Davis (4PCR.

118-21). In April of 2001, Mr. Tompkins was under a death

warrant, and his counsel requested the production of public

records under Rule 3.852, Fla. R. Crim. P. As Mr. Tompkins’

Rule 3.850 motion pled, documents first disclosed by the State

in response to those requests ultimately led Mr. Tompkins’

counsel to Mr. Davis.

Included in the documents first turned over in April of

2001, were two lead sheets prepared by Detective Burke, the lead

detective on the case (2PC-R. 64-65). In these previously

undisclosed lead sheets were two references to “Jr. Davis”. The

first handwritten notation says, “Interviewed Jr. Davis’ Lisa

DeCarr’s B.F. – could give only background – saw Lisa the

weekend before she was reported missing.” A later notation

provided, “call Jr Davis back [illegible] – dates Barbara came

to his house [illegible] – deadend LEAD school record’s revealed

she was in school on” (2PC-R. 64-65).

Also included in documents first disclosed in April of

2001, was a supplemental police report dated June 8, 1984,

written by Detective Milana. This report included a discussion

of Detective Milana’s interview of Maureen Sweeney and Mike

Willis on June 8, 1984. Sweeney advised that after Lisa

disappeared:

36

JUNIOR, (Lisa’ steady boyfriend) came to their house

on Rio Vistat and asked if they had seen her. MIKE

saw him much later at CHURCH’S CHICKEN and asked if he

had heard anything from LISA at which time he advised

that she had hurt him really bad and that she had

never called him, never tried to get in touch with him

and therefore he was finished with the family.

(2PC-R. 45-46). The feelings about Lisa attributed to “Junior”

in this report seem to contradict Kathy Stevens’ testimony that

when she told “Junior” that Mr. Tompkins was assaulting Lisa,

"he just walked away like it was nothing" (R. 254). Maureen

also gave the following information: “JUNIOR, LISA’S boyfriend

These documents first disclosed in April of 2001 provided

Mr. Tompkins new information regarding the significance of

“Junior” Davis as one who the State knew impeached Kathy

Stevens’ testimony. Mr. Tompkins’ counsel had previously

attempted to locate Mr. Davis in 1989, even though Mr. Davis was

not listed as a witness in the State’s discovery responses (see

R. 504-05, 591, 600, 654, 655). He was mentioned in one police

report that was included in the discovery provided to trial

counsel. This report did not indicate that Mr. Davis was in

possession of any useful information, but just the opposite: in

the report, Detective Burke stated he interviewed Junior Davis

who said he had “no information as to the events surrounding

37

number for Mr. Davis, but in 1989, while Mr. Tompkins’ case was

under warrant and his counsel was preparing Mr. Tompkins’ first

Rule 3.850 motion, Mr. Tompkins’ counsel called the phone number

and was advised that Mr. Davis was not at the listed phone

number. Mr. Tompkins’ counsel could not locate Mr. Davis and

had no indication that Mr. Davis possessed any relevant or

useful information.

In 2001, the newly disclosed lead sheets and Detective

Milana’s supplemental police report dated June 8, 1984, provided

additional information which assisted in the search for Mr.

Davis and which revealed for the first time that Mr. Davis may

possess significant exculpatory evidence. Using the information

that Mr. Davis was 17 years old in 1984 and lived at “40th St

and Buffalo,” Mr. Tompkins conducted follow up interviews in

order to gather more information that might help counsel locate

“Junior.” The legal team representing Mr. Tompkins kept

plugging the information gathered into computer data bases in

order to try to locate “Junior”. Mr. Tompkins was able to

counsel to rely on the “presumption that the prosecutor would

fully perform his duty to disclose all exculpatory evidence.”

Strickler v. Greene, 527 U.S. 263, 284 (1999). Nothing had been

provided to indicate that Mr. Davis, who was not listed as a

witness at trial, possessed any information.

38

ascertain that Junior’s given name was James Davis, Jr. Under

the pendency of the 2001 warrant, counsel located phone numbers

for various James Davis’, but each turned out not to be Lisa

DeCarr’s boyfriend. After Mr. Tompkins’ execution was stayed,

the search for James Davis, Jr. continued. Finally in April of

2002, the location of a James Davis, Sr. was turned up on one of

the often repeated computer runs. This James Davis turned out

to be the father of the James Davis, Jr., who had been Lisa

DeCarr’s boyfriend.

The facts alleged in the motion to vacate regarding Mr.

Tompkins’ diligence in searching for Mr. Davis are not

conclusively refuted by the record. The information now

provided by Mr. Davis constitutes evidence of the prejudice

suffered by Mr. Tompkins due to the failure of the State to

timely disclose the police reports and lead sheets. Had these

documents been disclosed in a timely manner, counsel would have

followed up on the information contained therein and would have

learned of the exculpatory information that Mr. Davis possessed.

2. The circuit court failed to give proper weight to

Mr. Davis’ affidavit, erroneously required Mr.

Tompkins to prove the outcome of the trial would

have been different, and conducted no cumulative

analysis.

The circuit court ruled that if the evidence contained in

the Davis affidavit had been presented at trial, the court did

39

not believe “the outcome of the trial would have been any

different” because “Kathy Stevens was subjected to staunch cross

examination and the fact that as counsel for Defendant alleges,

there might have been more material upon which to challenge her

recollection of the facts of the case is insufficient in and of

itself to vacate the judgement [sic] in this case” (4PC-R. 54).

The circuit court’s analysis did accept that the State failed to

disclose the information that led to Davis as someone who

impeached Stevens, but the circuit court failed to conduct the

proper prejudice analysis required by either Giglio or Brady and

burden of proving that the outcome would have been different.

It further did not take into account the significance of Kathy

Stevens to the prosecution’s case against Mr. Tompkins, and the

duty under Brady, because trial counsel was not diligent, the

Davis affidavit also establishes that trial counsel provided

ineffective assistance. Strickland v. Washington, 466 U.S. 668

(1984). If the State did not fail to disclose this information

and/or did not present false or misleading evidence, trial

counsel was ineffective in failing to locate, speak to and

present evidence from Mr. Davis. State v. Gunsby, 670 So.2d 920

(Fla. 1996). Counsel may very well have been misled by the one

police report mentioning Davis which was provided in discovery

and which said Davis had no information (R. 530). If trial

counsel’s performance was deficient in failing to learn of the

information possessed by Davis, then Mr. Tompkins was prejudiced

just the same. The Strickland prejudice standard is the same as

the Brady materiality standard and requires establishing that

confidence is undermined in the outcome. Kyles, 514 U.S. at

434.

40

court did not conduct a cumulative analysis of all the evidence

which the jury never heard showing the weakness of the

prosecution’s case.

a. proper prejudice standard under Giglio.

The Davis affidavit also establishes that the State

presented false or misleading testimony at Mr. Tompkins’ trial.

The State’s knowing use of false or misleading evidence is

“fundamentally unfair” because it is “a corruption of the truthseeking

function of the trial process.” United States v. Agurs,

427 U.S. 97, 103-104 & n.8 (1976). See Giglio v. United States,

405 U.S. 150, 153 (1972). A conviction must be set aside if the

falsity could in any reasonable likelihood have affected the

jury’s verdict. United States v. Bagley, 473 U.S. 667 (1985).

This Court has explained, “[t]he State as beneficiary of the

Giglio violation, bears the burden to prove that the

presentation of false testimony at trial was harmless beyond a

reasonable doubt.” Guzman v. State, 868 So. 2d 498, 506 (Fla.

2003).

Under the Giglio standard, it is clear the State cannot

establish beyond a reasonable doubt that Stevens’ testimony was

harmless. Guzman. Yet, the circuit court conducted no analysis

of Mr. Tompkins’ Giglio claim under the proper standard.

b. proper prejudice standard under Brady.

41

The State’s failure to disclose these police reports that

suggested that Davis did not corroborate Stevens’ claims

violated Brady. As this Court has explained: “Under Brady, the

go