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

REPLY 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).

In each one of these cases, this Court granted oral

argument even though the appeal arose from the denial of a

successive motion for post-conviction relief. In opposing oral

argument Appellee makes no effort to distinguish these cases.

To deny Mr. Tompkins an oral argument here while granting oral

argument to similarly situated individuals, could only be

characterized as arbitrary and capricious. As such, it would

constitute a violation of due process. 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........................................ iv

REPLY TO THE STATE’S STATEMENT OF THE CASE.................. 1

ARGUMENT IN REPLY

I. DILIGENCE.............................................. 8

A. Introduction...................................... 8

B. The Law.......................................... 9

C. The Facts........................................ 12

II. MR. TOMPKINS’ CLAIM................................... 15

CONCLUSION................................................. 25

CERTIFICATE OF SERVICE..................................... 26

CERTIFICATION OF COMPLIANCE................................ 26

TABLE OF AUTHORITIES

CASES

Banks v. Dretke

540 U.S. 668 (2004)........................ 9, 11, 12, 19

Brady v. Maryland,

Cardona v. State

826 So. 2d 968 (Fla. 2002)......................... 10, 11

Gaskin v. State

iv

Giglio v. United States

405 U.S. 150 (1972).................................... 9

Gorham v. State

597 So. 2d 782 (Fla. 1992)............................. 10

Hoffman v. State

800 So. 2d 174 (2001).................................. 11

Jones v. State

591 So. 2d 911 (Fla. 1991)............................. 8

Kyles v. Whitley

514 U.S. 419 (1995)........................ 19, 20, 21, 22

Lightbourne v. State

549 So. 2d 1364 (Fla. 1989)............................ 13

Lightbourne v. State

742 So. 2d 238 (Fla. 1999)................. ii, 19, 20, 21

Mills v. State

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

Mordenti v. State

894 So. 2d 161 (Fla. 2004)................. 10, 11, 15, 21

Richardson v. State

546 So. 2d 1037 (Fla. 1989)............................ 4

Roberts v. State

678 So. 2d 1232 (Fla. 1996)............................ 13

Roberts v. State

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

Rogers v. State

783 So. 2d 980 (Fla. 2001)............................. 10

Roman v. State

528 So. 2d 1169 (Fla. 1988)............................ 10

Scipio v. State

31 Fla. L. Weekly S114 (Fla. 2002)..................... 22

v

State v. Gunsby

670 So. 2d 920 (Fla. 1996)......................... 15, 21

State v. Huggins

788 So. 2d 238 (Fla. 2001)............................. 10

State v. Schopp

653 So.2d 1016 (Fla. 1995)............................. 22

Strickler v. Greene

527 U.S. 263 (1999).................................... 2

Swafford v. State

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

Swafford v. State

679 So. 2d 736 (Fla. 1996)......................... 14, 15

Tompkins v. State

872 So. 2d 230 (Fla. 2003)......................... 16, 17

Wright v. State

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

1

REPLY TO THE STATE’S

STATEMENT OF THE CASE

In reply to the Statement of the Case and Facts contained

in the Answer Brief, Mr. Tompkins notes that Appellee has

refused to accept the factual allegations contained in Mr.

acknowledge in its Answer Brief, just as the circuit court

failed to acknowledge in its order summarily denying Mr.

Tompkins’ motion to vacate, that Junior Davis was not listed as

a witness in the State’s discovery responses (see R. 504-05,

591, 600). The failure to list Mr. Davis’ name was in fact a

representation by the State that Mr. Davis was not a witness who

possessed “information that may be relevant to any offense

charged or any defense thereto.” Fla. R. Crim. Pro. 3.220.

Mr. Davis was mentioned in one police report that was

included in the discovery provided to trial counsel on October

commenced September 16, 1983, and a jury found Mr. Tompkins

guilty (R. 401).” In fact, Lisa DeCarr was reported missing on

March 24, 1983 (R. 397-98). Mr. Tompkins was indicted for her

murder on September 26, 1984 (R. 489). Trial commenced on

September 16, 1985 (R. 656).

an interview of Mr. Davis had occurred underscores the obvious

implication when the State did not list Mr. Davis as a witness

relevant to any offense charged or any defense thereto.”

2

was interviewed on June 24, 1984, but that Mr. Davis was not in

Neither the State in its Answer Brief, nor the circuit

court in its order denying an evidentiary hearing, addressed the

fact that Mr. Davis’ name was specifically not listed by the

State as a witness who possessed “information that may be

relevant to any offense charged or any defense thereto.”

However, the record is crystal clear on this point.

Moreover, the State first disclosed the name of Kathy

Kathy Stevens as a witness with material information, the State

did not disclose the name of Junior Davis under Rule 3.220.

Prior to March of 1985, Ms. Stevens had told others that Lisa

DeCarr had run away to New York and that Lisa had called Kathy

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.

him on the murder charge. However, each subsequently withdrew

until Mr. Daniel Hernandez was appointed on April 17, 1985 (R.

601).

State’s possession, but which were not provided to the defense.

3

trial testimony, Ms. Stevens acknowledged that she had told

Lisa’s mother a couple of weeks after March 24, 1983, that Lisa

“had left for New York” (R. 257).

As was revealed during the post-conviction proceedings in

1989, Mr. Benito contacted Ms. Stevens on March 7, 1985. At

that time, she stuck with her story that Lisa had runaway. It

was not until the next week that Ms. Stevens for the first time

indicated to law enforcement that she had witnessed Lisa being

When she testified at Mr. Tompkins’ trial in September of

1985, she related that after witnessing Lisa being attacked and

asking her to call for help:

These records were previously pled as undisclosed exculpatory

evidence withheld from the defense in violation of due process.

was 17 years old (R. 242). Two and a half years before, she had

attended school with Lisa DeCarr. Kathy and Lisa met in classes

for emotionally troubled students. School records show that on

March 23, 1983, the day before Lisa disappeared, Kathy and Lisa

were suspended from school for smoking under a tree on campus.

Marijuana was found in Kathy’s purse. These school records were

previously pled as favorable evidence in the prosecutor’s

possession that was not disclosed to Mr. Tompkins’ trial

counsel.

As was also previously pled, the prosecutor’s memorandum

recording Ms. Stevens’ contact with him in March of 1985 was not

disclosed to the defense. Nor was the fact that Ms. Stevens

only changed her story and claimed to have witnessed Lisa being

assaulted when Mr. Benito agreed to arrange for her to visit her

boyfriend who was then incarcerated (1PC-R. 20-21).

4

Q. Did you leave when Lisa told you to

call the police?

A. Yes, I did.

Q. Where did you go after you left?

A. I went up to the store, and I ran into

her boyfriend.

Q. Whose boyfriend?

A. Lisa’s.

Q. He was at the store?

A. Yes, he was.

Q. Did you advise him that you wanted to

call the police?

A. Yes, I did.

Q. Why didn’t you call the police?

A. I guess it was a little bit of being

scared and not knowing what to expect when

they got there, so I just told Junior, you

know, what was going on, and he just walked

away like it was nothing. So, I just got

scared and I went to school.

( R. 254-55).

The circuit court in denying an evidentiary hearing on

Junior Davis’ affidavit asserting that this event did not occur,

said:

As Counsel for Defendant indicated at the hearing

on August 29, 2005, the 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. (See Transcript August 29, 2005, pp. 6,

line 25, and pp. 7, line 1 -6, attached). The name

5

Junior Davis was listed in the police reports and as

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

attorney. See Richardson v. State, 546 So. 2d 1037

(Fla. 1989). Furthermore, Defendant has failed to

show that this new evidence could not have been

discovered by or through the use of “due diligence”

did Defendant explain why it took 13 years to locate

Junior Davis other than to say that Junior Davis was a

consider the affidavit and the alleged newly

discovered evidence is time-barred. See Jones v.

State, 591 So. 2d 911 (Fla. 1991).

(4PC-R. 53)(emphasis added).

In fact, Mr. Tompkins’ collateral counsel alleged more

than “that Junior Davis was a common name.” In the current

motion to vacate, Mr. Tompkins alleged:

Undersigned counsel had previously attempted to locate

[Junior Davis] in 1989, even though Mr. Davis was not

listed as a witness at trial. He was mentioned in one

police report that was included in the discovery

provided to trial counsel and that appears in the

record. There was no indication in the police reports

disclosed in 1989 that Mr. Davis was in possession of

any useful information. In the report first disclosed

in 1989 “Detective Burke stated he interviewed Junior

Davis who said he could provide no information as to

the events surrounding Lisa’s disappearance [R. 530].

In 1989 while Mr. Tompkins’ case was under warrant,

Mr. Tompkins’ counsel was advised that Mr. Davis was

not at the list phone number. Mr. Tompkins’ counsel

could not locate Mr. Davis and had no indication that

Mr. Davis possessed any relevant or useful

information.

(4PC-R. 156).

6

During the 2005 Huff hearing on the motion to vacate,

Mr. Tompkins’ collateral counsel explained that efforts were

made to find Mr. Davis in 1989:

In any event, um, as is alleged in the 3.850 in

1989 when this case was first handled by CCR and

specifically myself and my investigators, we looked

for Mr. Davis because his name showed up. He had not

been listed as a witness at the time of the trial but

obviously Kathy Steven mentioned him in her testimony.

We tried calling a phone number that appeared in

a police report for him. We were told that, um, Mr.

Davis was not at the phone number. That is

specifically pled in the 3.850.

* * *

In 1989 we didn’t have any of the other information

regarding Mr. Davis. We just knew that Kathy Stevens

said she had talked to him and there was no indication

that he had said anything inconsistent with what Kathy

Stevens had to say.

(4PC-R. 17-18).

During the 2005 Huff hearing, Mr. Tompkins’ collateral

counsel explained that the police reports first disclosed in

2001 significantly altered the picture as to Junior Davis and

what he knew or might know:

In 2001, information was disclosed that had not

been previously disclosed regarding a Maureen Sweeney

and her boyfriend Mike Willis I believe his name is in

which they had given statements to the police that

actually ended up in the Jessie Albauch file

indicating that, um, they had been told that actually

Lisa had a fight with her mother Barbara DeCarr over

Wayne Tompkins moving back into the house. This fight

occurred in the afternoon on the day of her

7

house at that point in time and ran away.

This appeared in Maureen Sweeney’s statement that

was given to law enforcement and Mike Willis’ as well.

They also indicated in their statements that after

Lisa disappeared they had also talked to Junior Davis

- - James Davis, Jr. about the situation.

In addition in 2001, there was also a lead sheet

from Detective Burke indicating that he had talked to

Mr. Davis and that Mr. Davis had no significant

information which again, um, would seem to conflict

with Kathy Stevens’ claim that she saw the sexual

assault going on. That she went and she told Mr.

Davis and Mr. Davis said, don’t worry about it.

provided that indicated that Mr. Davis had spoken with Ms.

Sweeney and Mr. Willis and made statements that seemed

incompatible with Ms. Stevens’ testimony, collateral counsel

renewed his efforts to find Mr. Davis:

Maureen Sweeney and Mike Willis on June 8, 1984, included

Sweeney’s statement that after Lisa disappeared:

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

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

the family.

(2PC-R. 45-46)(emphasis added). The feelings about Lisa

attributed to “Junior” in this report clearly 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).

8

In 2001 when we received the lead sheets and the

supplemental police reports concerning the information

of an interview by Detective Burke of Mr. Davis and of

Maureen Sweeney and Mike Willis’ statements, we then

again tried to contact him and then of course between

1989 and 2001, the techniques for locating witnesses

had changed substantially through the use of computers

and even then in 2001 we had great difficulty.

Part of the problem is James Davis is actually a

fairly common name and you can locate many James

Davis’ but trying to figure out the right one is

sometimes confusing. We had a long list of James

Davises that we got under warrant. We were going

through them. We were not able to find the correct

James Davis while we were under warrant.

Finally a year later in April of 2002, another

repeated, computer run turned up a James Davis, Sr.,

who we contacted and he was the father of James Davis,

Jr. And we were able to locate him. As soon as we

located him in April of 2002, we went and talked to

him and we obtained the affidavit and I submitted it

to Your Honor and of course at that time there was an

appeal pending with the issue of jurisdiction and at

this point basically my reading of the Florida Supreme

Court opinion is that this is basically nunc pro tunc

to that date so the question is whether or not there

has been diligence alleged to get us to April of 2002.

Of course what Mr. Davis has to say, um, is

consistent with the undisclosed information that was

in the possession of the State and it was the State

that had not turned that information over until 2001.

(4PC-R. 19-20).

ARGUMENT IN REPLY

I. DILIGENCE.

A. Introduction.

9

The State argues that the Junior Davis affidavit “is

not proper newly-discovered evidence since Mr. Davis was known

to Appellant and his counsel at the time of trial and Tompkins

has failed to adequately explain the belated presentation of Mr.

Davis’ affidavit until thirteen years after his first motion for

argument, the State overlooks both law and fact.

B. The Law.

Mr. Tompkins has presented in his motion to vacate a

its possession that was favorable to him. Contrary to the

State’s assertion in its Answer Brief, the fact that the defense

is aware of a name, does not mean that the State has complied

with its obligation under Brady. The United States Supreme

Court recently explained in Banks v. Dretke, 124 S.Ct. 1256,

Mr. Tompkins’ claim is one premised upon Brady v. Maryland, 373

U.S. 83 (1963). Perhaps, this is because the circuit court

relied upon the newly discovered evidence standard in Jones v.

State, 591 So. 2d 911 (Fla. 1991). See 4PC-R. 54. The circuit

court conducted no Brady analysis, and gave absolutely no

cumulative consideration to the previously presented undisclosed

exculpatory evidence in its order denying relief without the

benefit of an evidentiary hearing. In fact at one point, the

State asserts “[a]ny suggestion that the Davis affidavit

indicates a violation of either Brady v. Maryland, 373 U.S. 83

(1963), or Giglio v. United States, 405 U.S. 150 (1972), is

is clearly wrong in this regard.

10

1263 (2004): “When police or prosecutors conceal significant

exculpatory or impeaching material in the State’s possession, it

is ordinarily incumbent on the State to set the record

straight.” Thus, a rule “declaring ‘prosecutor may hide,

defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.” Id.

record straight,” not upon the defense to intuit that the State

is holding information back.

In fact, this Court has frequently been presented with

Brady claims where the name of a particular witness had been

listed by the State in pre-trial discovery, but nevertheless

found that a Brady violation had occurred because information

regarding statements made by that witness or about that witness

had not been disclosed to the defense. In Mordenti v. State,

894 So. 2d 161 (Fla. 2004), this Court vacated a conviction and

ordered a new trial in a case where the defense not only had the

name of a witness (Gail Milligan), but had deposed the witness

and cross-examined her on the witness stand at trial. This

Court did not find that because trial counsel had the witness’

name, his failure to learn of the undisclosed favorable

evidence, to investigate it, and present it, meant Mr. Mordenti

11

was barred on a want of diligence from presenting his Brady

claim once he learned of the withheld evidence.

Similarly in Cardona v. State, 826 So.2d 968 (Fla.

2002), this Court vacated a conviction and ordered a new trial

in a case where the defense not only had the name of a witness

(Olivia Gonzalez-Mendoza), but had deposed the witness and

cross-examined her on the witness stand at trial. As in

Mordenti, this Court did not find that because trial counsel had

the witness’ name, his failure to learn of the undisclosed

favorable evidence, to investigate it, and present it, meant Ms.

Cardona could not present her Brady claim, once the Brady

a new trial in Hoffman v. State, 800 So. 2d 174 (Fla. 2001).

There, the defense learned that hair had been found in the

victim’s hand, but was not provided with a report indicating

that the hair did not originate from Mr. Hoffman. In granting a

new trial, this Court stated:

in which the State had disclosed the name of a witness to the

defense, but failed to provide the defense with favorable

evidence regarding that witness or statements made by the

witness. Rogers v. State, 782 So.2d 373 (Fla. 2001); State v.

Huggins, 788 So.2d 238 (Fla. 2001); Gorham v. State, 597 So.2d

782 (Fla. 1992); Roman v. State, 528 So.2d 1169 (Fla. 1988).

12

The State's additional argument is that defense

counsel Harris elicited information at trial from a

serologist about the hairs. The information solicited,

however, was merely the fact that hairs were gathered

at the scene. The State asserts this testimony

sufficiently apprised the defense of the existence of

this evidence. This argument is flawed in light of

Strickler and Kyles, which squarely place the burden

on the State to disclose to the defendant all

information in its possession that is exculpatory. In

failing to do so, the State committed a Brady

violation when it did not disclose the results of the

hair analysis pertaining to the defendant.

Hoffman, 800 So. 2d at 179.

Thus, the question of when is a criminal defendant

held to know of the basis for a Brady claim cannot turn on when

he knew the name of the witness (Mordenti and Cardona) or the

existence of a piece of evidence (Hoffman). It must turn upon

when the State has “set the record straight,” as explained in

Banks.

Here, the State did not disclose any information

regarding Maureen Sweeney and Mike Willis until 2001. It was in

their statements that Mr. Tompkins was advised for the first

time of Mr. Davis’ statements to them regarding Lisa’s

disappearance:

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

had heard anything from LISA at which time he advised

13

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)(emphasis added). Thus, the State did not comply

with its obligation under Brady, as explained in Banks until it

disclosed the existence of these statements which the State had

in its possession all along. Once these statements were

disclosed, Mr. Tompkins was first placed in a position to have a

basis for believing that Mr. Davis possessed favorable

C. The Facts.

Besides ignoring the law, the State ignores Mr.

Tompkins’ factual allegations when it asserts “Tompkins has

failed to adequately explain the belated presentation of Mr.

Davis’ affidavit until thirteen years after his first motion.”

Answer Brief at 16. Mr. Tompkins explained in his motion and

during his argument at the Huff hearing his factual allegations

regarding his discovery of previously undisclosed statements

Mr. Tompkins’ collateral counsel had only a police report

disclosed to trial counsel indicating he possessed no

“information that may be relevant to any offense charged or any

defense thereto” (R. 530), and the testimony of Kathy Stephens

that she had run into “Junior” after Lisa had asked to call the

police, but that he did not seem concerned (R. 254).

14

attributed to Mr. Davis and his efforts to locate Mr. Davis and

verify those statements.

According to well established law, factual allegations

contained in a motion to vacate are to be accepted as true

unless conclusively rebutted by the record. Gaskin v. State,

737 So. 2d 509, 516 (Fla. 1999). The same standard applies to

successive motions. Lightbourne v. State, 549 So. 2d 1364, 1365

(Fla. 1989)(As to a successive postconviction motion,

allegations of previous unavailability of new facts, as well as

diligence of the movant, are to be accepted as true and warrant

evidentiary development so long as not conclusively refuted by

the record).

In 1989 on the basis of the mention of his name in a

police report with the indication that he possessed no relevant

information and on the basis of the mention of his name during

Kathy Stevens’ testimony, collateral counsel did seek to locate

Mr. Davis. As was explained in the motion to vacate:

Undersigned counsel had previously attempted to locate

[Junior Davis] in 1989, even though Mr. Davis was not

listed as a witness at trial. He was mentioned in one

police report that was included in the discovery

provided to trial counsel and that appears in the

record. There was no indication in the police reports

disclosed in 1989 that Mr. Davis was in possession of

any useful information. In the report first disclosed

in 1989 “Detective Burke stated he interviewed Junior

Davis who said he could provide no information as to

the events surrounding Lisa’s disappearance [R. 530].

In 1989 while Mr. Tompkins’ case was under warrant,

15

Mr. Tompkins’ counsel was advised that Mr. Davis was

not at the list phone number. Mr. Tompkins’ counsel

could not locate Mr. Davis and had no indication that

Mr. Davis possessed any relevant or useful

information.

(4PC-R. 156).

In Roberts v. State, 678 So. 2d 1232 (Fla. 1996), a

witness (Rhonda Haines) who had testified at Mr. Roberts’ trial,

but who could not located at the time of his first motion to

vacate in 1989, was located in 1996 during the pendency of a

death warrant. In 1996, Ms. Haines gave an affidavit in which

she swore that due to prosecutorial promises and threats, she

testified falsely at Mr. Roberts’ trial. Mr. Roberts asserted

in his motion to vacate in 1996 that he had sought to locate Ms.

Haines in 1989. He had at one point located a phone number for

the person he believed was Ms. Haines’ mother, but when the

number was called, Ms. Haines’ mother refused to provide any

information regarding Ms. Haines or her whereabouts. On the

basis of the factual allegations as to Mr. Roberts’ efforts to

locate Ms. Haines, a witness who had in fact testified at Mr.

Roberts’ trial regarding statements supposedly made by Mr.

Roberts that Mr. Roberts knew he did not make, this Court

ordered an evidentiary hearing on a successive Rule 3.850

motion.

16

This Court in Swafford v. State, 679 So. 2d 736 (Fla.

1996), was presented with circumstances similar to those here.

In a successive motion to vacate, Mr. Swafford presented an

affidavit from a witness whose name had not been disclosed at

trial, but whose name was contained in a police report disclosed

during collateral proceedings. As this Court explained:

Swafford maintains that Lestz's affidavit is newly

discovered evidence because despite due diligence,

collateral counsel was unable to locate Lestz until an

investigating service obtained his address in April

1994. According to Swafford, none of the material

disclosed by the State contained a current address for

Lestz or information sufficient to determine his

current address.

Swafford v. State, 679 So. 2d at 739 n. 4. This Court accepted

Mr. Swafford’s factual allegations as to diligence as true and

ordered an evidentiary hearing.

For the same reasons here, the factual allegations

asserted in the motion to vacate and reiterated during the Huff

hearing are facially sufficient. Accepting them as true as is

required at this point, diligence is established.

II. MR. TOMPKINS’ CLAIM.

In his motion to vacate, Mr. Tompkins alleged that

“either the State failed to disclose evidence which was material

and exculpatory in nature and/or presented misleading evidence

and/or defense counsel unreasonably failed to discover and

17

the motion, the State failed to disclose a police report

regarding the interview of Maureen Sweeney and Mike Willis and

their statements regarding Mr. Davis. In this report, the

following appeared:

Court has indicated that cumulative consideration of evidence

the jury did not hear, either because of a Brady violation or

because of ineffective assistance of counsel, is warranted in

determining whether a constitutionally adequate adversarial

testing occurred. Mordenti v. State, 894 So. 2d 161 (Fla.

2004); State v. Gunsby, 670 So. 2d 920 (Fla. 1996).

18

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

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)(emphasis added).

These statements regarding conversations Sweeney and

Willis had with Davis suggest that Davis knew nothing about

Kathy Stevens and her claim to have told him on the day of

Lisa’s disappearance that she was being attacked and asking for

someone to call the police. These statements were not disclosed

to Mr. Tompkins’ trial counsel, nor to his collateral counsel

prior to 2001. This Court considered Mr. Tompkins’ Brady claim

premised upon the undisclosed statements of Sweeney and Willis

that was set forth in a police report as follows:

SWEENY advised that it was very strange the

explanation given surrounding LISA'S disappearance.

She advised that she was told that LISA had come home,

found WAYNE sitting at the kitchen table with her

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

Her mother, BARBARA, explained that he had no place to

go and that she was going to let him move in with

them, until he could get on his feet. At that point

LISA ran out the back door. According to MAUREEN

[SWEENY], it was very unusual for LISA to be outside

without her makeup and supposedly she had been outside

and then come inside and then gone out again without

her makeup. LISA's brother BILLY left the house to go

find her and came back to take care of

JAMIE. SWEENY advised that she had been told that

WAYNE had gotten up to chase LISA to try and catch her

but she was gone, by the time he got outside. SWEENY

19

advised that LISA had left her purse containing her

makeup, etc. on the table.

Tompkins v. State, 872 So. 2d at 241 n. 15. The preceding

paragraph in the police report had been the one concerning the

conversations Sweeney and Willis had with Mr. Davis. This Court

denied relief saying:

Therefore, the only part of the June 8, 1984, report

that is even conceivably favorable to Tompkins is a

statement made by Sweeny's fiance, Mike Glen Willis,

that includes an account of the events on the day Lisa

disappeared that is inconsistent with Barbara DeCarr's

trial testimony. However, this one piece of

undisclosed inconsistent information, even taken

together with any other favorable evidence the State

may have failed to disclose to Tompkins, does not rise

to the level necessary to undermine our confidence in

the verdict in this case.

Tompkins v. State, 872 So. 2d at 241 (footnote omitted). In

denying relief, this Court did not specifically address the

preceding paragraph of the police report and the information

contained therein.

However of course, statements by Willis or Sweeney

regarding statements made by Mr. Davis would not be admissible.

Absent proof of what in fact Mr. Davis would say, this Court

disregarded the statements attributed to him, just as this Court

disregarded the statements of Wendy Chancey that she saw Lisa

20

argued she was murdered, get into car not far from her home.

As pled in the current motion to vacate, Mr. Davis was

located within a year of the disclosure of the police report

detailing the interview of Maureen Sweeney and Mike Willis.

Thereupon, Mr. Davis provided an affidavit stating in pertinent

part that he had been Lisa Decarr’s boyfriend in March of 1983

(4PC-R. 165). He reported that, “[t]he story of Kathy running

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.” (4PC-R. 166). He 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

“Complainant” and Wendy Chancey as the “Witness”, indicated that

“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 that Lisa was last seen was “24 March 83 1330-1400.”

21

of anything having possibly happened to Lisa was when I heard on

the radio she was missing.” (4PC-R. 166).

The sworn testimony provided by Mr. Davis was not

previously available before because the State did not disclose

sworn statement confirms what Willis and Sweeney reported to the

police. It provides the proof of how Mr. Tompkins was

prejudiced by the State’s failure to disclose the police report

containing the statements of Willis and Sweeney.

adequately explain the belated presentation of Mr. Davis’

affidavit until thirteen years after his first motion for

postconviction relief.” Answer Brief at 16. It’s a sleight of

hand maneuver. THE STATE DID NOT DISCLOSE THE POLICE REPORT FOR

NEARLY SEVENTEEN YEARS. The State is merely trying to obfuscate

the fact that it withheld the information that actually

suggested that Mr. Davis had something helpful to say.

Again, the United States Supreme Court has made it crystal

clear that the State cannot escape the ramifications from its

own failure to honor a criminal defendant’s rights under Brady,

by arguing that it was relieved of its obligation by the

defense’s failure to figure out that favorable evidence existed,

even though as here, the State had specifically disclosed its

interview of Junior Davis, reported he had no information, and

did not list him as a witness who possessed material

information. “When police or prosecutors conceal significant

exculpatory or impeaching material in the State’s possession, it

is ordinarily incumbent on the State to set the record

straight.” Banks v. Dretke, 124 S.Ct. 1263. Thus, a rule

“declaring ‘prosecutor may hide, defendant must seek,’ is not

tenable in a system constitutionally bound to accord defendants

precisely what Banks describes as untenable. The delay here is

the product of the State’s failure to disclose.

22

In the Brady context, the United States Supreme Court

and this Court have 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).

This Court has recognized that previously denied Brady claims

must be reheard and evaluated cumulatively when new Brady

evidence is discovered. In Lightbourne v. State, 742 So. 238

(Fla. 1999), this Court, in explaining the analysis to be used

when evaluating a successive motion for post-conviction relief,

reiterated the need for a cumulative analysis:

In this case the trial court concluded that

Carson's recanted testimony would not probably produce

a different result on retrial. In making this

determination, the trial court did not consider

cannot consider each piece of evidence in a vacuum,

but must look at the total picture of all the evidence

When rendering the order on review, the trial

court did not have the benefit of our recent decision

in Jones v. State, 709 So. 2d 512, 521-22 (Fla.) cert.

denied, 523 U.S. 1040 (1998), where we explained that

when a prior evidentiary hearing has been conducted,

"the trial court is required to 'consider all newly

discovered evidence which would be admissible' at

trial and then evaluate the 'weight of both the newly

discovered evidence and the evidence which was

introduced at the trial'" in determining whether the

evidence would probably produce a different result on

so that the trial court has a "total picture" of the

case. Such an analysis is similar to the cumulative

analysis that must be conducted when considering the

23

materiality prong of a Brady claim. See Kyles v.

Lightbourne, 742 So. 2d at 247-248(emphasis added)(citations

In addition, this Court has repeatedly recognized that

the prejudice prong of an ineffective assistance of counsel

claim must be evaluated cumulatively with any Brady evidence.

Evidence that the State failed to disclose and evidence that

counsel was ineffective should be considered cumulatively in

determining whether the jury’s failure to know of the

unpresented exculpatory evidence undermines confidence in the

guilty verdict. Mordenti v. State, 894 So. 2d 161 (Fla. 2004);

State v. Gunsby, 670 So. 2d 920 (Fla. 1996).

Given what this Court said while previously denying

court read Lightbourne as requiring cumulative consideration

only when the new evidence involves several recanting witnesses.

Accordingly, the circuit court stated: “The new evidence does

not, however, rise to the level of several witnesses recanting

their testimony, as in Lightbourne, as the Defendant appears to

argue.” (4PC-R. 4). The circuit court clearly misread

Lightbourne, and just as clearly did not recognize that Mr.

Tompkins had presented a Brady claim and did not conduct any

cumulatively analysis of all of the undisclosed, but favorable

information that did not reach the jury.

Moreover in its Answer Brief, the State does not address

Lightbourne besides merely referring without comment to the

circuit court’s denial of the rehearing. Answer Brief at 10.

24

was not demonstrated, the matter must be revisited in light of

Kyles and Lightbourne, in order for the requisite cumulative

analysis to be conducted. A cumulative analysis requires noting

each piece of undisclosed favorable information that the State

possessed and considering how that evidence cumulatively and

synergistically could have effected not just the jury, but the

manner in which the defense approached the case. Certainly, the

failure to disclose the names of the witnesses with material

their statements to the police, impacted the manner in which

defense counsel would have investigated and presented his case.

Scipio v. State, 31 Fla. L. Weekly S114, 2006 Fla. LEXIS 261

(Fla. February 16, 2006). In State v. Schopp, 653 So. 2d 1016

(Fla. 1995), this Court noted that “the question of ‘prejudice’

in a discovery context is not dependent upon the potential

impact of the undisclosed evidence on the factfinder but rather

upon its impact on the defendant’s ability to prepare for

trial.” The issue is how could Mr. Tompkins’ counsel at trial

use the suppressed evidence. Kyles, 514 U.S. at 446 (“Even if

Kyles’s lawyer had followed the more conservative course of

leaving Beanie off the stand, though, the defense could have

examined the police to good effect on their knowledge of

Beanie’s statements and so have attacked the reliability of the

25

investigation in failing even to consider Beanie’s possible

guilt and in tolerating (if not countenancing) serious

possibilities that incriminating evidence had been planted.”).

Further, as the United States Supreme Court explained:

A defendant need not demonstrate that after

discounting the inculpatory evidence in light of the

undisclosed evidence, there would not have been enough

left to convict. The possibility of an acquittal on a

criminal charge does not imply insufficient

evidentiary basis to convict.

Kyles, 514 U.S. at 434-35. In fact, the Supreme Court in Kyles

specifically noted, “the effective impeachment of one eyewitness

can call for a new trial even though the attack does not extend

directly to others, as we have said before.” Id. at 445.

The State tries to get around this clear language from

the United States Supreme Court by asserting: “Davis’ affidavit

does not contradict Stevens on her seeing Appellant struggle

with Lisa at the house; it does not detract from Mrs. DeCarr’s

testimony about Lisa’s disappearance and Tompkins’ report of it;

and it does not challenge in any way Turco’s testimony of

Appellant’s admissions.” Answer Brief at 16. Mr. Davis’

affidavit does indicate that a significant portion of Kathy

she told Mr. Davis what she had just witnessed, and that given

26

his reaction, she decided to ignore Lisa’s plea that she call

the police.

But, this must be evaluated cumulatively with the

previously presented undisclosed impeachment evidence of Ms.

Stevens. The prosecutor wrote a memorandum detailing her

statement to him in March of 1983 which had major

inconsistencies from the story she told at trial. Moreover, as

was established at the evidentiary hearing in 1989, a seventeen

year old Ms Stevens first told the prosecutor what she had told

others, that Lisa had runaway. It was only after the prosecutor

promised to arrange for her to be able to visit her boyfriend in

jail did she change her story and say she had witnessed Lisa

being attacked and heard her call for help.

Moreover, previous Brady material that was in the

State’s

possession but that was not disclosed has been presented as to

in 1989 indicate 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. Gull insisted that she did not tell him

this.” (emphasis in original)(Exh. 10). Further, Mike Benito in

1989 stipulated to the accuracy of Det. Gullo’s representations

(PC-R. 301).

Detective Gullo’s log of his conversations with Barbara

about these sightings shows that Barbara was never able to

27

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 gave Det. Gullo the

wrong last name. Det. Gullo according to his logs was never

able to speak with Kathy.

As the trial prosecutor explained, “Apparently, the mother

didn’t know she [Lisa] 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 Detective

Gullo, the police officer who was looking for Lisa, Lisa’s

possible pregnancy until April 26th. 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.

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

28

Mr. Tompkins had show sufficient prejudice then, all of the

undisclosed, favorable evidence that the State had in its files,

must now be evaluated cumulatively. Its synergistic effect must

consider, as well as its effect upon defense counsel had it been

disclosed. When the proper cumulative analysis is conducted, a

new trial is warranted.

Based upon the factual allegations, at this juncture

an evidentiary hearing is required in order to permit Mr.

Tompkins to present the proof in support of his factual

allegations.

CONCLUSION

In light of the foregoing arguments and those

presented in the Initial Brief, Mr. Tompkins requests that this

Court remand to the circuit court for a full and fair

evidentiary hearing, so that he may be grant Mr. Tompkins a new

trial when he been afforded an opportunity to prove his claims.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has

been furnished by United States Mail, first-class postage

prepaid, to Robert Landry, Office of Attorney General, Westwood

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).

29

Building, 7th Floor, 2002 North Lois Avenue, Tampa, FL 33607, on

September 11, 2006.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the

font requirements of rule 9.210(a)(2) of the Florida Rules of

Appellate Procedure.

___________________________

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Appellant