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IN THE SUPREME COURT OF FLORIDA

CASE NOS. SC01-1619

WAYNE TOMPKINS,

Appellant/Cross-Appellant,

vs.

STATE OF FLORIDA,

Appellee/Cross-Appellee.

______________________________/

MOTION FOR REHEARING

COMES NOW, Appellant/Petitioner WAYNE TOMPKINS, by and through his undersigned counsel, pursuant to Florida Rule of Appellate Procedure 9.370, and moves this Court to grant rehearing in the above-styled cause. Through counsel, Mr. Tompkins states the following grounds in support of his request:

1. On October 9, 2003, this Court issued an opinion denying Mr. Tompkins’ appeal and granting the State’s cross-appeal in the above-entitled matters. This motion for rehearing is timely filed. Fla.R.App.Pro. 9.330(a).

2. In granting the State’s appeal, this Court reversed the circuit court’s granting of relief on Mr. Tompkins’ claim that the sentencing order imposing a sentence of death was the product of ex parte communication between the presiding judge and the prosecuting attorney. In reversing the grant of sentencing relief, this Court overlooked or misapprehended a number of matters.

Constitutional Deprivation.

3. First, this Court overlooked the basis of Mr. Tompkins’ legal claim. Mr. Tompkins’ claim was that the State drafted sentencing order as a result of undisclosed ex parte contact with Judge Coe (T. 170). Under well established law, ex parte communication in the resolution of factual matters constitutes a violation of due process under the Fourteenth Amendment to the United States Constitution. Certainly, this Court has in the past so recognized. In Rose v. State, 601 So. 2d 1181, 1182 (Fla. 1992), a due process challenge to the denial of Rule 3.850 relief was raised "because the trial court, without a hearing and as a result of ex parte communication, adopted the State’s proposed order denying relief without providing counsel notice of receipt of the order, a chance to review the order, or an opportunity to object to its contents." This Court found the ex parte contact violated "a fundamental requirement for all judicial proceedings." Id. at 1183. Having found that the ex parte contact violated the process that was due to a capital litigant, this Court stated, "[w]e are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of impartiality of the tribunal. The impartiality of the trial judge must be beyond question." Id. (emphasis added). To support this ruling that a due process violation arising from ex parte contact was not subject to a harmless error analysis, this Court quoted State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939)(emphasis added):

The attitude of the judge and the atmosphere of the courtroom should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.

Thus, it is clear that this Court has considered improper ex parte contact on constitutional par with proceedings conducted before a partial tribunal. See Porter v. Singletary, 49 F. 2d 1483 (11^th Cir. 1995).

4. Subsequent to this Court’s decision in Rose v. State, it had occasion to elaborate on the constitutional underpinnings of the decision. In Huff v. State, 622 So. 2d 982 (1993), this Court noted that Mr. Huff’s counsel received a copy of the State’s draft order on the Friday before it was signed on Monday. Though this distinguished the circumstances from the ex parte contact at issue in Rose, this Court explained, "Rose was denied due process because his counsel was never served a copy of the proposed order; thereby depriving Rose of the opportunity to review the order and object to its contents." Huff v. State, 622 So. 2d at 983 (emphasis added). Based upon the due process principle embodied in Rose, this Court found that fair notice and reasonable opportunity to be heard were core due process values that had been denied to Mr. Huff, even though technically there was no ex parte communication. In response to the argument made by the State that error was harmless, this Court stated, "[w]hen a procedural error reaches the level of due process violation, it becomes a matter of substance." Id. at 984. This Court refused to consider that a violation of the due process principle of fair notice and reasonable opportunity to be heard could ever be harmless.

5. This principle was followed in Roberts v. State, 840 So. 2d 962 (Fla. 2002). There, this Court relying on Rose found that ex parte communication between a judge and a prosecuting attorney in the preparation of a capital sentencing order required reversal without regard to a showing of prejudice. Id. at 969.

6. In Mr. Tompkins’ case, the State conceded in its cross-appeal that the record below supports a finding that there was an ex parte contact between Judge Coe and Prosecutor Benito. The State acknowledged that the procedure conducted by Judge Coe was wrong, "[i]t is clearly inconsistent with what is now understood to be the proper manner of preparing sentencing orders, as explained in cases such as Card v. State, 625 So. 2d 344 (Fla. 1995), Spencer v. State, 615 So. 2d 688 (Fla. 1993) and State v. Riechmann, 777 So. 2d 342 (Fla. 2000)." Answer Brief at 50. Thus, there is no question in this case that Mr. Tompkins’ due process rights were violated. He was not given "fair notice and reasonable opportunity to be heard" regarding the sentencing

order prepared by the State. Huff v. State, 622 So. 2d 983. See

State v. Riechmann, 777 So. 2d at 352 n. 13.

Structural Error.

7. The United States Supreme Court has explained that constitutional error comes in two varieties: structural defects not subject to harmless error analysis, and trial error subject to harmless error analysis. Certain kinds constitutional error constituting "structural defects in the constitution of the trial mechanism," have been found to "defy analysis by ‘harmless error’ standards." Arizona v. Fulminante, 499 U.S. 279, 309 (1991). Structural defects, subject to automatic reversal have been found where there has been a "complete denial of counsel," a "biased trial judge," "racial discrimination in [the] selection of [the] grand jury," the "denial of self-representation at trial," the "denial of a public trial," and a "defective reasonable-doubt instruction." Neder v. United States, 119 S.Ct. 1827, 1833 (1999). In Rose v. Clark, 478 U.S. 570, 578 (1986), the Supreme Court stated:

Similarly, harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury. We have stated that "a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly the evidence may point in that direction." United States v. Martin Linen Supply Co., 430 U.S. (1977)(citations omitted). Accord, Carpenters v. United States, 330 U.S. 395 (1947). This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. See Duncan v. Lousisana, 391 U.S. 145 (1968). Where the right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt: the error in such a case is that the wrong entity judge the defendant guilty.

8. This Court has previously recognized that findings made be a judge as a result of ex parte communication with the prosecutor is the functional equivalent of findings made by a biased judge. Certainly, the deprivation of fair notice and reasonable opportunity to be heard must also be viewed as the kind of constitutional error that cannot be subject to harmless error analysis. It must be regarded as a structural defect. This Court implicitly recognized this in Rose v. State, 601 So. 2d at 1183 ("[w]e are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other"); Huff v. State, 622 So. 2d at 984 ("[w]hen a procedural error reaches the level of due process violation, it becomes a matter of substance"); Roberts v. State, 840 So. 2d 962 (Fla. 2002)(resentencing was ordered based upon the finding of ex parte contact between the judge and the State in the preparation of the capital sentencing order without discussion of prejudice). See also Love v. State, 569 So.2d 807 (Fla. 1^st DCA 1990)("Ex parte communication between a trial judge and assistant attorney general concerning a pending criminal case is totally inappropriate and will mandate reversal if: * * * the judge is sitting as the trier of fact").

Arbitrary Disregard of Structural Error.

9. On the basis of the well settled law that ex parte communication between the sentencing judge and the State in the preparation of the findings in support of a death sentence was reversible without proof of prejudice, numerous capital defendants received Rule 3.850 relief from the sentences of death. The State stipulated that Rudolph Holton was entitled to a re-sentencing because the State on an ex parte basis prepared the sentencing order for Judge Coe’s signature. The confession of error in State v. Holton concerned a sentencing proceeding in 1986, one year after Mr. Tompkins death sentence was imposed. State v. Holton, Cir. Ct. No. 86-8931A (13^th Jud. Cir., Hillsborough County). After the circuit court ruled that ex parte communication occurred in Krishna Maharaj’s case, the State decided that it had no basis for an appeal. Maharaj v. State, 778 So. 2d 944, 947 n. 1 (Fla. 2000). Similar, the State did not appeal the grant of Rule 3.850 relief in State v. Card, Cir. Ct. No. 81-155 (14^th Jud. Cir., Bay County). See Card v. State, 803 So. 2d 613, 617 (Fla. 2001). Rule 3.850 relief was granted in a number of cases because of ex parte contact between the judge and the State in the preparation of the findings in support of the death sentence in which no appeal was taken and in which no death sentence was reimposed. State v. Espinosa, Cir. Ct. No. 86-19790-A (11^th Jud. Cir., Miami-Dade County); State v. Beltran-Lopez, Cir. Ct. No. 86-19790-B (11^th Jud. Cir., Miami-Dade County); State v. Lindsey, Cir. Ct. No. 91-398CF (3^rd Jud. Cir., Columbia County). In each of these cases, relief from the sentence of death was stipulated to because it was understood that "[w]e are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other." Rose v. State, 601 So. 2d at 1183.

10. This Court’s decision to ignore the longstanding principle enunciated in Rose v. State means that there is no principled way to distinguish Mr. Tompkins’ sentence of death from those death sentences that were vacated because the findings in support of the death sentence resulted from ex parte contact between the judge and the State. This Court’s arbitrary disregard of the applicable legal standard leaves Mr. Tompkins’ death sentence standing in violation of the Eighth Amendment principles. Parker v. Dugger, 498 U.S. 308, 321 (1991).

Timely Notice of Change in Applicable Standard.

11. "An essential principle of due process is that a deprivation of life, liberty or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’" Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). "[F]undamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in part and concurring in the judgment). As the United States Supreme Court has explained:

the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those right.

Speiser v. Randall, 357 U.S. 513, 520-21 (1958).

12. At no time during the proceedings in circuit court had Mr. Tompkins or his counsel received any notice that principle of Rose v. State, 601 So. 2d at 1183 ("[w]e are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other"), would not apply to his case. Without notice that Mr. Tompkins bore the burden of proving prejudice, he did not receive due process in conformity with the Fourteenth Amendment. Standards which are not yet in place cannot be said to provide notice and an opportunity to be heard. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)("essential principle of due process is that a deprivation of life...be preceded by notice and opportunity for hearing appropriate to the nature of the case").

Harmless Beyond a Reasonable Doubt.

13. The error at the heart of Mr. Tompkins’ claim that he was denied his due process rights due to ex parte communication between the judge and the State is constitutional in nature. Accordingly, if this Court concludes that it is not structural error, reversal is required unless the State proves the error harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). This Court overlooked this standard in Mr. Tompkins’ case, and instead and without explanation imposed upon Mr. Tompkins a burden to meet the prejudiced standard established by the United States Supreme Court for ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 687 (1984). This Court’s unprecedented use of the Strickland prejudice standard as the yardstick for determining whether constitutional error is reversible simply has no basis in the law and is contrary to precedent.

Failure to Consider Judge Coe Presided at Prior 3.850 Hearing.

14. In evaluating the prejudice from ex parte communication between the presiding judge and the State, this Court overlooked the fact that having engaged in improper ex parte communication with the State, Judge Coe improperly presided over the subsequent Rule 3.850 proceedings. Judge Coe received ex parte communication from the State. Mr. Tompkins received no notice and no opportunity to be heard in response in violation of due process. Even at the Rule 3.850 proceedings in 1989, Judge Coe did not disclose the ex parte contact and did not give Mr. Tompkins an opportunity to be heard in response to the ex parte communication from the State.

15. In Roberts v. State, 840 So. 2d at 969, this Court found that a judge who had engaged in ex parte communication with the State in the drafting of the sentencing findings in support of a death sentence erroneously refused to disqualify himself from presiding over subsequent Rule 3.850 proceedings. The Rule 3.850 proceedings that he presided over had to be vacated.

16. So too here, the 1989 proceedings presided over by Judge Coe are tainted by the due process violation. Judge Coe’s factual findings occurred after he had received ex parte communication from the State. When this Court affirmed Judge Coe’s factual findings, it did not know of the denial of fair notice and reasonable opportunity to respond to the ex parte communications. So too when the Eleventh Circuit affirmed the denial of federal habeas relief, it did not know of the ex parte communication and concomitant denial of due process. Judge Coe’s receipt of ex parte communication from the State rendered him the equivalent of a biased or partial judge. As such, all proceedings over which he presided are rendered constitutionally defective. Porter v. Singletary, 49 F. 2d 1483 (11^th Cir. 1995).

17. Moreover, had Judge Coe complied with his judicial obligations under the Code of Judicial Conduct, he would have at a minimum disclosed his ex parte contact with the State. Had he done so, Mr. Tompkins would have been entitled to disqualify Judge Coe. Roberts v. State, 840 So. 2d at 969. The prejudice flowing from the ex parte communication runs through all subsequent proceedings. Not only did the ex parte communication violated due process, its non-disclosure also violated Mr. Tompkins’ right to due process.

Wiggins v. Smith

18. In vacating the grant of sentencing relief, this Court for unexplained reasons relied upon Judge Coe’s previous denial of Mr. Tompkins ineffective assistance of counsel claim, this Court’s affirmance of Judge Coe’s denial of that claim, and the Eleventh Circuit’s denial of the ineffectiveness claim as well. In relying on these rulings, this Court overlooked the United States Supreme Court’s decision in Wiggins v. Smith, 123 S.Ct. 2357 (2003), which establishes that these prior rulings do not properly apply the Strickland prejudice prong.

19. The prior rulings and their consideration of Strickland "prejudice" were an unreasonable application of well established federal law as explained in Wiggins. First, to determine prejudice from the unreasonable failure to investigate and present mitigating evidence, "we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 123 S.Ct at 2542 (emphasis added); see also Williams, 120 S.Ct at 1495 (court is required to conduct an "assessment of the totality of the omitted evidence" and then to "evaluate the totality of the available mitigation evidence–both that adduced at trial, and the evidence adduced in the habeas proceeding")(emphasis added). If "the available mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [the defendant’s] moral culpability," Wiggins, 123 S.Ct. at 2544 (quoting Williams, 120 S.Ct. at 1495, then prejudice has been shown. Second, Petitioner need only show that the available mitigation creates "a reasonable probability" that enough jurors would have struck a different balance to alter the sentencing recommendation. Id. Third, every defendant has "a right–indeed a constitutionally protected right–to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer," Williams, 120 S.Ct. at 1513, regardless of the strength of the state’s case, the heinous nature of the offense, or the severity of the aggravators. Williams, 120 S.Ct. at 1515. Fourth, for a fact to be mitigating it does not have to be relevant to the crime–any of "the diverse frailties of humankind," Woodson v. North Carolina, 428 U.S. 280, 304 (1976), which might counsel in favor of a sentence less than death, Lockett v. Ohio, 438 U.S. 586 (1978), are mitigating. Williams, 120 S.Ct at 1495. Judge Coe, this Court, and the Eleventh Circuit unreasonably failed to consider and/or apply these aspects of the prejudice analysis required by the United States Supreme Court. This Court’s reliance upon these decisions in denying Mr. Tompkins’ sentencing relief on his due process claim is in error given that these decisions are in error as is now apparent.

20. However, quite clearly the legal analyses of the ineffectiveness claim were influenced by the factual findings of Judge Coe made after ex parte communication with the trial prosecutor. Mr. Tompkins was given neither notice nor an opportunity to respond. The factual findings were made in violation of due process and should not be used to find the due process error not prejudicial. Using the product of the error to rule that the error was not prejudicial is actually proof of the scope of the prejudice.

21. In denying Mr. Tompkins a sentencing relief this Court overlooked the controlling law and erroneously denied Mr. Tompkins’ claim that the ex parte communication violated his right to due process under the Fourteenth Amendment.

DNA Testing.

22. In this Court’s opinion, this Court affirmed the denial of DNA testing 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."

23 First, this Court overlooked Mr. Tompkins justification for DNA testing. He argued that the DNA testing of the bone identified as the remains of the victim could determine definitely whether the remains were those of Lisa DeCarr. See Reply/Cross-Answer at 32 ("if the DNA testing of the bone, hair or other organic material established that the decedent was not Lisa DeCarr, Mr. Tompkins would be exonerated"). Given that Mr. Tompkins was convicted of killing Lisa Decarr, this Court failed to explain how DNA evidence that the remains were not those of Lisa DeCarr would not have resulted in an acquittal.

24. Second, this Court overlooks the fact that neither § 925.11(2)(f), Fla. Stat. (2002), nor Rule 3.853 had been adopted at the time of the proceedings in circuit court and that the circuit court did not employ the standards contained in either in denying Mr. Tompkins’ request for DNA testing.

25. Section 925.11, Fla. Stat., adopted in 2001, extended to convicted criminal defendants the substantive right to obtain DNA testing in order to challenge their conviction or sentence. When this Court issued Fla. R. Crim P. 3.853, it established the court procedure to be employed when exercising that substantive right. Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633 (Fla. 2001). Rule 3.853 sets forth the pleading requirements to be used by a convicted defendant to obtain DNA testing of biological evidence. "[T]he purpose of section 925.11 and rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’" Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2nd DCA 2002), quoting In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d at 636 (Anstead, J., concurring).

26. Where the State of Florida extends a right or a liberty interest, the right or liberty interest may only be extinguished in a manner that comports with due process. This was explained by the United States Supreme Court in Evitts v. Lucey, 469 U.S. 387 (1985). There, the Court noted that the States were not required to provide a right to a direct appeal of a criminal conviction. However, where the right was nonetheless extended, due process protection attached:

The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms. For instance, although a State may chose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause.

Evitts, 469 U.S. at 400-01.

27. Having extended to Mr. Tompkins a right to obtain DNA testing of the physical evidence in his case, the State of Florida can only extinguish that right in a manner that comports with due process. To deny Mr. Tompkins DNA testing of the available physical evidence while other similarly situated capital defendants have received such testing demonstrates an arbitrary process that violates the Eighth and Fourteenth Amendments. This Court sua sponte ordered DNA testing in the case of Duckett v. State, Case No. SC01-2149 (Order dated 3/21/03), and at the request of the Appellant relinquished jurisdiction to permit DNA testing in Rivera v. State, Case No. SC01-2523 (Order dated 7/11/02).

28. Rule 3.853 provides that in passing upon a motion for DNA testing, the circuit court should assess "[w]hether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial." Thus, a motion for DNA testing should be granted "if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial." Knighten v. State, 829 So.2d 249, 252 (Fla 2^nd DCA 2002). In making this determination, the allegations contained in the motion must be taken as true. Borland v. State, 848 So.2d 1288, 1290 (Fla. 2003)("If [ ] the State’s response creates a factual dispute, the trial court should conduct an evidentiary hearing to resolve the dispute."). Mr. Tompkins has alleged that the DNA testing can establish that remains are not those of Lisa DeCarr. In denying DNA testing, this Court has refused to accept the factual allegations made by Mr. Tompkins.

29. The "reasonable probability" standard is a familiar legal standard that was first adopted and explained by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The next year, the Supreme Court used that standard for determining whether undisclosed exculpatory evidence was material. United States v. Bagley, 473 U.S. 667 (1985). As this Court has explained, exculpatory and material evidence is evidence of a favorable character for the defense which creates a reasonable probability that the outcome of the guilt and/or capital sentencing trial would have been different. Garcia v. State, 622 So. 2d 1325, 1330-31 (Fla. 1993). This standard is met and reversal is required once the reviewing court concludes that there exists a "reasonable probability that had the [unpresented] evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 680. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. at 419, 434 (1995).

30. The United States Supreme Court and this Court have explained that the "reasonable probability" standard requires the court to analyze the evidence that the jury did not hear "collectively, not item-by-item." Kyles v. Whitley, 514 U.S. at 436 (1995); Young v. State, 739 So.2d 553, 559 (Fla. 1999). Thus, the proper standard is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435 (footnote omitted). See Lightbourne v. State, 742 So. 238, 247-48 (Fla. 1999). Thus, the "reasonable probability" standard mandated by Rule 3.853 requires cumulative consideration of all the evidence not heard by the jury as a result of either the State’s failure to disclose under Brady or defense counsel failure to adequately investigate under Strickland when determining whether there is a "reasonable probability" of a different outcome.

31. Further, it is not a question of whether there was sufficient evidence to convict. In Kyles, the Supreme Court explained:

[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance for the prosecution.

514 U.S. at 453.

32. Thus, the fact that an eyewitness identified the defendant at trial is no bar to obtaining DNA testing under Rule 3.853. Manual v. State, 28 Fla. L. Weekly D1399 (Fla. 2^nd DCA June 13, 2003); Knighten v. State, 829 So.2d 249, 251 (Fla. 2^nd DCA 2002). With favorable DNA results, the eyewitness "testimony may not have been sufficient to convict." Riley v. State, 28 Fla. L. Weekly D1790 (Fla. 2^nd DCA July 30, 2003).

33. Certainly, favorable DNA results establish a "reasonable probability" of a different outcome in a circumstantial evidence case. In Huffman v. State, 837 So.2d 1147, 1149 (Fla. 2^nd DCA), the denial of DNA testing was reversed where the trial court had relied upon "significant circumstantial evidence" presented at trial to conclude that there was no reasonable probability that favorable DNA evidence would have led to an acquittal.

34. In denying Mr. Tompkins’ request for DNA testing, this Court relied upon the circumstantial evidence presented at trial to conclude that favorable DNA test results would not render a reasonable probability that the defendant would have been acquitted or receive a lesser sentence. This was clearly an erroneous application of the "reasonable probability" standard. Huffman. In denying Mr. Tompkins’s motion for DNA testing, the circuit court further found the evidence to be tested had been contaminated. Thus, any DNA results would be unreliable to establish that innocence. This factual determination that the proof is unreliable was made without conducting any sort of evidentiary hearing. It was made in violation of the principle that, "[i[n making factual determinations, a trial court can consider only sworn evidence." Borland. No sworn evidence subject to confrontation was presented by the State regarding the matter. This Court overlooked the absence of evidentiary development in affirming the denial of Mr. Tompkins’ motion.

35. Further, this Court completely overlooked the wealth of exculpatory evidence that was not presented at trial, but has been discovered during postconviction proceedings. This exculpatory evidence must be considered when considering whether the alleged DNA results could create a "reasonable probability" of a different outcome. Lightbourne v. State, 742 So. 238 (Fla. 1999); State v. Gunsby, 670 So.2d 920 (Fla. 1996).

36. "An essential principle of due process is that a deprivation of life, liberty or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’" Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). "[F]undamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in part and concurring in the judgment).

37. Here, the circuit court denied Mr. Tompkins his substantive right to obtain DNA testing completely in disregard of the standards appearing in § 925.11 and Rule 3.853 because at the time of the proceedings below those provisions did not exist. No notice and opportunity to be heard in conformity with due process occured. Yet, this Court affirmed saying, "[w]e agree with both of the trial court’s findings," findings made with evidentiary support, without an opportunity to be heard, without notice of the procedural requirements adopted months later. Quite simply, this Court overlooked the Fourteenth Amendment’s guarantee to due process, and the accompanying right to fair notice and opportunity to be heard.

Brady and Newly Discovered Evidence Claim.

38. Mr Tompkins claimed that the State withheld favorable evidence during his collateral proceedings that constituted newly discovered evidence of innocence. This evidence included Kenneth Turco’s extortion conviction in 1995 and Kathy Stevens sentence for perjury in 1986. In its opinion, this Court stated, "[Tompkins] presents no explanation for how he could have [presented this information] given that these events occurred after his trial." This Court completely overlooked that impeachment evidence arising from events occurring after trial may constitute newly discovered evidence admissible in collateral proceedings to establish an entitlement to a new trial. State v. Mills, 788 So. 2d 249 (Fla. 2001).

39. In addition, this Court without permitting evidentiary development denied Mr. Tompkins claim that he was denied an adequate adversarial testing. This Court ignored the fact that Mr. Tompkins obtained the newly disclosed evidence from the State days before he had to file his Rule 3.850 motion. These circumstances arose from the State’s failure to disclose the information for nearly 18 years until the eve of Mr. Tompkins’ scheduled execution. Mr. Tompkins was deprived of an opportunity to fully explore and develop the new disclosures that included a description of Lisa DeCarr running away from home in fashion corroborating Wendy Chancey’s statements which had previously been found of insufficient reliability to be admissible. Maureen Sweeney’s statement and Wendy Chancey’s statement taken together and accepted as true (in the absence of an evidentiary hearing) establish that the scenario presented by the State at Mr. Tompkins trial cannot be true. This court overlooked the need to provide Mr. Tompkins with fair notice and a reasonable opportunity to be heard. An evidentiary hearing should have been ordered.

40. Moreover, this Court failed to conduct the required cumulative consideration. In the Brady context, the United States Supreme Court has explained that the materiality of evidence not presented to the jury must be considered "collectively, not item-by-item." Kyles v. Whitley, 514 U.S. 419, 436 (1995). The piecemeal treatment of this claim by Respondent violates the dictates of Kyles, and exposes the unreasonable application of clearly established federal law by the Florida Supreme Court. The individual non-disclosures must be evaluated cumulatively in determining whether Mr. Tompkins was entitled to an evidentiary hearing to prove his claim that he did not receive a constitutionally adequate adversarial testing. As explained in Kyles:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

Kyles, 514 U.S. at 434.

The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item-by-item.

Kyles, 514 U.S. at 437.

The result reached by the Fifth Circuit majority is compatible with a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley, as the ensuing discussions will show.

Kyles, 514 U.S. at 438.

41. Thus, where relevant evidence does not reach the jury either as a result of the State’s failure to disclose or as a result of the defense’s failure to discover, relief is warranted where cumulative consideration of all of the evidence which did not reach the jury undermines confidence in the result of the trial. The issue is whether the undisclosed evidence could have mattered to the jury’s evaluation of whether a reasonable doubt existed:

In evaluating the weight of all these evidentiary items, it bears mention that they would not have functioned as mere isolated bits of good luck for Kyles. Their combined force in attacking the process by which the police gathered evidence and assembled the case would have complemented, and have been complemented by, the testimony actually offered by Kyles's friends and family to show that Beanie had framed Kyles. Exposure to Beanie's own words, even through cross-examination of the police officer, would have made the defense's case more plausible and reduced its vulnerability to credibility attack. Johnny Burns, for example, was subjected to sharp cross-examination after testifying that he had seen Beanie change the license plate on the LTD, that he walked in on Beanie stooping near the stove in Kyles's kitchen, that he had seen Beanie with handguns of various calibres, including a .32, and that he was testifying for the defense even though Beanie was his "best friend." On each of these points, Burns's testimony would have been consistent with the withheld evidence: that Beanie had spoken of Burns to the police as his "partner," had admitted to changing the LTD's license plate, had attended Sunday dinner at Kyles's apartment, and had a history of violent crime, rendering his use of guns more likely. With this information, the defense could have challenged the prosecution's good faith on at least some of the points of cross-examination mentioned and could have elicited police testimony to blunt the effect of the attack on Burns.
Justice Scalia suggests that we should "gauge" Burns's credibility by observing that the state judge presiding over Kyles's post-conviction proceeding did not find Burns's testimony in that proceeding to be convincing, and by noting that Burns has since been convicted for killing Beanie. Of course, neither observation could possibly have affected the jury's appraisal of Burns's credibility at the time of Kyles's trials.

Kyles, 514 U.S. 449 n. 19 (citations omitted)(emphasis added). This Court’s analysis clearly was an unreasonable application of Kyles.

42. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. at 434. As explained in Kyles, the analysis requires an examination of this question from the perspective of the jury, not the post-conviction judge. Kyles, 514 U.S. at 449 n. 19. The cumulative and synergistic effect of the nondisclosures was ignored. The Court did not consider, as required, the attack on the good faith of law enforcement’s investigation arising from the series of nondisclosures. Kyles, 514 U.S. at 449 n. 19 ("With this information, the defense could have challenged the prosecution’s good faith on at least some of the points of cross-examination mentioned and could have elicited police testimony to blunt the effect of the attack on Burns").

43. This Court overlooked Mr. Tompkins allegation in regard to Junior Davis. Kathy Stevens lied when she said she met Junior Davis at the store and told him about how she had seen Mr. Tompkins attacking Lisa DeCarr. That was simply not true, as Junior Davis knew. Detective Burke’s contact with Junior Davis would have revealed to the State that Junior Davis could have seriously impeached Kathy Stevens and destroyed her credibility exposing her as a liar. Yet inexplicably, Detective Burke’s contact with Junior Davis was not revealed to the defense. This Court simply overlooked Mr. Tompkins’ factual allegations, refused to accept them as true, failed to consider them cumulatively when passing upon whether the undisclosed favorable evidence could have impacted the jurors’ resolution of witness credibility and their ultimate verdict.

WHEREFORE, Mr. Tompkins, by and through undersigned counsel, respectfully requests this Court grant a rehearing and reconsider the opinion of October 9, 2003.

I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing has been furnished by United States Mail, first class postage prepaid, to Robert Landry, Assistant Attorney General, Department of Legal Affairs, 3507 E. Frontage Road, Suite 200, Tampa, FL 33607, on October 24, 2003.

Respectfully submitted,

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 N.E. 30^th Street

Wilton Manors, FL 33334

(305) 984-8344

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL FOR THE

SOUTHERN REGION

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins