i

PAGE

NO.:

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . ii

OTHER AUTHORITIES CITED . . . . . . . . . . . . . . . . . . . . v

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . 14

WHETHER THE LOWER ERRED IN FAILING TO GRANT

AN EVIDENTIARY HEARING ON APPELLANT’S CLAIM

OF A VIOLATION OF BRADY v. MARYLAND, 373

U.S. 83 (1963) AND GIGLIO v. UNITED STATES,

405 U.S. 150 (1972)

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . . 30

WHETHER THE LOWER COURT ERRED IN DENYING

APPELLANT’S MOTION FOR DNA TESTING.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . . 36

WHETHER THE STATE’S FAILURE TO PRESERVE HAIR

EVIDENCE FOR SEVENTEEN YEARS VIOLATES

APPELLANT’S DUE PROCESS RIGHTS.

ISSUE IV . . . . . . . . . . . . . . . . . . . . . . . . 38

WHETHER THE LOWER COURT ERRED IN NOT

ORDERING THE PRODUCTION OF PUBLIC RECORDS.

ISSUE V . . . . . . . . . . . . . . . . . . . . . . . . 42

THE LOWER COURT ERRED IN HOLDING THAT

TOMPKINS WAS ENTITLED TO A NEW SENTENCING

ii

PROCEEDING.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 50

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 50

CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . . 50

iii

PAGE

NO.:

Arizona v. Youngblood,

488 US 51 L.Ed.2d 281 (1988) . . . . . . . . . . . . . . 11, 36

Brady v. Maryland,

373 US 83 (1963) . . . . . . . . . . . . . . . . 10, 16, 18, 29

Bryan v. State,

748 So. 2d 1003 (Fla. 1999) . . . . . . . . . . . . . . . . . 41

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . 12, 41, 43

Card v. State,

652 So. 2d 344 (Fla. 1995) . . . . . . . . . . . . . . . 45, 47

Carroll v. State/Moore,

_So. 2d_, 27 Fla. L. Weekly S214 (Fla. 2002) . . . . . . . . 17

Cook v. State,

792 So. 2d 1197 (Fla. 2001) . . . . . . . . . . . . . . . . . 18

D.R. Spencer v. State,

_So. 2d_, 27 Fla. L. Weekly S323 (Fla. 2002) . . . . . . . . 17

Freeman v. State,

761 So. 2d 1055 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Giglio v. United States,

405 US 150 (1972) . . . . . . . . . . . . . . . . . . . . . 4, 10

Glock v. Moore,

776 So. 2d 243 (Fla. 2001) . . . . . . . . . . . 11, 15, 18, 41

Holton v. State,

573 So. 2d 284 (Fla. 1990) . . . . . . . . 8, 12, 19, 26, 43, 45

Jennings v. State,

782 So. 2d 853 (Fla. 2001) . . . . . . . . . . . . . . . . . 18

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . . 48, 49

iv

Jones v. State,

709 So. 2d 512 (Fla. 1998) . . . . . . . . . . . . . . . 18, 19

Kelley v. State,

569 So. 2d 754 (Fla. 1990) . . . . . . . . . . . . . . . . . 36

King v. State/Moore,

_So. 2d_, 27 Fla. L. Weekly S65 (Fla. 2002) . . . 11, 34, 35, 37

Lightbourne v. State,

549 So. 2d 1364 (Fla. 1989) . . . . . . . . . . . . . . . 12, 41

Maharaj v. State,

778 So. 2d 944 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

McCray v. State,

699 So. 2d 1366 (Fla. 1997) . . . . . . . . . . . . . . . . . 37

Medina v. State,

690 So. 2d 1241 (Fla. 1997) . . . . . . . . . . . . . . . . . 22

Merck v. State,

664 So. 2d 939 (Fla. 1995) . . . . . . . . . . . . . . . 11, 36

Nibert v. State,

508 So. 2d 1 (Fla. 1987) . . . . . . . . . . . . . 8, 12, 45, 47

Occhicone v. State,

768 So. 2d 1037 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Patterson v. State,

513 So. 2d 1257 (Fla. 1987) . . . . . . . . . . . . . . . 43, 47

Robinson v. State,

770 So. 2d 1167 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Rogers v. State,

782 So. 2d 373 (Fla. 2001) . . . . . . . . . . . . . . . . . 24

Rose v. State,

774 So. 2d 629 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Rose v. State,

787 So. 2d 786 (Fla. 2001) . . . . . . . . . . . . . . . . . 18

Salmon v. State,

755 So. 2d 148 (Fla. 3 DCA 2000) . . . . . . . . . . . . . . 41

v

Sims v. State,

753 So. 2d 66 (Fla. 2000) . . . . . . . . . . . . . . 11, 15, 40

Sims v. State,

754 So. 2d 657 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Sireci v. State,

773 So. 2d 34 (Fla. 2000) . . . . . . . . . . . . . . . . 18, 30

Spaziano v. State,

570 So. 2d 289 (Fla. 1990) . . . . . . . . . . . . . . . . . 23

Spencer v. State,

615 So. 2d 688 (Fla. 1993) . . . . . . . . . . . . . 43, 45, 47

State of Florida v. Holton,

Case No. 86-8931 . . . . . . . . . . . . . . . . . . . . . . 25

State v. Reichmann,

777 So. 2d 342 (Fla. 2000) . . . . . . . . . . . . . . . 18, 47

Strickler v. Greene,

527 US 263 L.Ed.2d 286 (1999) . . . . 10, 14, 16, 19, 21, 24, 28

Swafford v. State,

_So. 2d_, 27 Fla. L. Weekly S349 (Fla. 2002) . . . . . . . . 29

T. Johnson v. State,

804 So. 2d 1218 (Fla. 2001) . . . . . . . . . . . . . . . . . 18

Thompson v. State,

759 So. 2d 650 (Fla. 2000) . . . . . . . . . . . . . . . . . 17

Tompkins v. Moore,

Tompkins v. Singletary,

No. 89-1638 CIV-T-21B (M.D. Fla. April 17, 1998) . . . . . . . 3

Tompkins v. State,

502 So. 2d 415 (Fla. 1986),

cert. denied, 483 US 1033 (1987) . . . . . . . . . . . . . 1, 27

Tompkins v. State/Dugger,

549 So. 2d 1370 (Fla. 1989),

cert. denied, 493 US 1093 (1990) . . . . . . . . . . . . . 3, 27

vi

Van Royal v. State,

497 So. 2d 625 (Fla. 1986) . . . . . . . . . . . . . . . . . 47

Way v. State,

760 So. 2d 903 (Fla. 2000) . . . . . . . . . . . . . . . . . 18

Ziegler v. State,

632 So. 2d 48 (Fla. 1993) . . . . . . . . . . . . . . . . 12, 41

Ziegler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . . . . . 30

1

Appellee/Cross-Appellant in this brief will refer to the

instant record on appeal as "R" followed by the volume and page

number; to the direct appeal record as "DAR" and to the record

in Tompkins’ prior post-conviction appeal as "1 PCR" followed by

the page number. "EH" refers to the evidentiary hearing in that

proceeding.

Following his jury trial in September, 1985, Tompkins was

convicted of first-degree murder. The trial court, the

Honorable Harry Lee Coe, III, followed the jury’s unanimous

recommendation and imposed the death sentence.

On direct appeal in Tompkins v. State, 502 So. 2d 415 (Fla.

1986), cert. denied, 483 US 1033 (1987), this Court unanimously

affirmed Tompkins’ conviction and sentence and set forth the

following summary of the facts:

The victim, Lisa DeCarr, aged 15, disappeared from her

home in Tampa on March 24, 1983. In June 1984, the

victim’s skeletal remains were found in a shallow

grave under the house along with her pink bathrobe and

jewelry. Based upon a ligature (apparently the sash

of her bathrobe) that was found tied tightly around

her neck bones, the medical examiner determined that

Lisa had been strangled to death. In September 1984,

Wayne Tompkins, the victim’s mother’s boyfriend, was

charged with the murder.

At trial, the state’s three key witnesses

testified as follows. Barbara DeCarr, the victim’s

mother testified that she left the house on the

morning of March 24, 1983, at approximately 9:00 a.m.,

2

leaving Lisa alone in the house. Lisa was dressed in

her pink bathrobe. Barbara met Wayne Tompkins at his

mother’s house a few blocks away. Some time that

morning, she sent Tompkins back to her house to get

some newspapers for packing. When Tompkins returned,

he told Barbara that Lisa was watching television in

her robe. Tompkins then left his mother’s house

again, and Barbara did not see or speak to him again

until approximately 3:00 o’clock that afternoon. At

that time, Tompkins told Barbara that Lisa had run

away. He said the last time he saw Lisa, she was

going to the store and was wearing jeans and a blouse.

Barbara returned to the Osborne Street house where she

found Lisa’s pocketbook and robe missing but not the

clothes described by Tompkins. Barbara then called

the police.

The state’s next witness, Kathy Stevens, a close

friend of the victim, testified that she had gone to

Lisa DeCarr’s house at approximately 9:00 a.m. on the

morning of March 24, 1983. After hearing a loud

crash, Stevens opened the front door and saw Lisa on

the couch struggling and hitting Tompkins who was on

top of her attempting to remove her clothing. Lisa

asked her to call the police. At that point, Stevens

left the house but did not call the police. When

Stevens returned later to retrieve her purse, Tompkins

answered the door and told her that Lisa had left with

her mother. Stevens also testified that Tompkins had

made sexual advances towards Lisa on two prior

occasions.

Kenneth Turco, the final key state’s witness,

testified that Tompkins confided details of the murder

to him while they were cellmates in June 1985. Turco

testified that Tompkins told him that Lisa was on the

sofa when he returned to the house to get some

newspapers for packing. When Tompkins tried to force

himself on her, Lisa kicked him in the groin.

Tompkins then strangled her and buried her under the

house along with her pocketbook and some clothing

(jeans and a top) to make it appear as if she had run

away.

* * * *

At the penalty phase, the state presented evidence

from three witnesses to show that Tompkins had been

convicted of kidnapping and rape stemming from two

separate incidents in Pasco County which occurred

motion for post-conviction relief, he raised nineteen issues and

in his habeas corpus petition in this Court he urged nine

grounds for relief. A listing of the issues raised in those

state appellate and post-conviction vehicles is provided in the

Response to Motion to Vacate and Application for Stay of

Execution (R III, 354-359).

3

after Lisa DeCarr’s disappearance. The defense

presented testimony from three witnesses regarding

Tompkins’ good work record, shy and nonviolent

personality, and honesty.

The trial judge, finding three aggravating

circumstances (previous conviction of felonies

involving the use or threat of violence to the person;

murder committed while the defendant was engaged in an

attempt to commit sexual battery; murder was

especially heinous, atrocious, or cruel) and one

statutory mitigating circumstance (defendant’s age at

the time of the crime), followed the jury’s

recommendation and sentenced Tompkins to death.

502 So. 2d at 417-18.

Following the signing of the death warrant on March 30,

1989, Tompkins sought post-conviction relief in the circuit

court. An evidentiary hearing was held before Judge Coe on May

19-20, 1989, after which his motion for post-conviction relief

was denied. Tompkins appealed to this Court and also filed a

petition for writ of habeas corpus. This Court entered a stay

of execution on June 2, 1989 but on September 14, 1989, the stay

was lifted and all relief was denied in a unanimous opinion

denied, 493 US 1093 (1990).

On November 9, 1989, Governor Martinez signed a second death

warrant and Tompkins sought habeas corpus relief in the federal

district court, a petition which he supplemented in 1992 and

despite the district court’s limitation of issues in the

certificate of probable cause. 193 F.3d at 1331. The Court

noted that many of the issues it didn’t write about did not

merit further discussion beyond agreeing with the district court

that the claims do not provide a basis for federal habeas relief

in this case. Appellant’s Brady claim was one of those. 193

F.3d at 1331, n. 1.

4

amended in 1994. Judge Nimmons denied relief in a thorough and

comprehensive one hundred and six (106) page unpublished

opinion. Tompkins v. Singletary, No. 89-1638 CIV-T-21B (M.D.

Fla. April 17, 1998). The Court of Appeals for the Eleventh

Circuit affirmed the district court’s denial of habeas corpus

denied 531 US 861, 148 L.Ed.2d 99 (2000), rehearing denied 531

course of rejecting Tompkins’ claims of a violation of Giglio v.

United States, 405 US 150 (1972) opined:

"The district court cogently summarized the

overwhelming evidence that the skeletal remains were

those of Lisa DeCarr:

The State introduced Exhibit 10, a

photograph of the skull that was taken from

the grave (R 149), for the purpose of

showing a dental anomaly of a tooth which

had grown behind the subject’s two front

teeth in the same manner as Lisa’s. Using

Exhibit 10, Dr. Diggs described this unusual

dental structure. (R 178) Subsequently,

Barbara DeCarr testified that her daughter

had the identical dental anomaly as that

described by Dr. Diggs. (R 208) In

addition, Stevens saw Petitioner,

immediately prior to the time of the

5

disappearance, assaulting Lisa. The body

was found in a shallow grave beneath the

house where she was assaulted and where she

resided with her mother, her siblings, and

Petitioner. Her remains were identified in

several ways: the unusual dental feature;

the remains being wrapped in Lisa’s robe;

and Lisa’s earrings and ring given to her by

her boyfriend being found adjacent to the

skeletal remains in a position indicating

that they had been worn by the victim.

Coupled with the unsolicited confession

Petitioner gave to Kenneth Turco, even if

the medical examiner had given misleading

testimony regarding identification of Lisa’s

body, there is no reasonable likelihood that

such testimony could have affected the

judgment of the jury.

In a footnote to the summary, the

district court pointed out that the death

certificate identifying the skeletal remains

as Lisa DeCarr came into evidence without

objection.

We add to the district court’s summary

the additional facts that the skeletal

remains were those of a female in her

midteens, and there is no other evidence

that any other female in her midteens was

missing in the area. Nor has Tompkins

offered any explanation for how anyone else

came to be buried–with Lisa’s jewelry–under

the house he shared with her, the same house

in which he had been seen struggling with

her as she wore a pink robe, the very same

pink robe found on the skeleton. (FN13)

There is simply no doubt that it was Lisa

DeCarr whose skeletal remains were found in

that shallow grave. With all due respect to

the advocacy obligations of Tompkins’

present counsel, their argument in brief

that "there was very little evidence of the

identity of the deceased" is preposterous."

(FN14)

(Id. at 1341-1342)

(FN13.) Lisa’s mother was able to identify

6

the pink robe found on the skeleton as

Lisa’s, because of the rose design or

imprint it had on the collar.

errors were committed in connection with

witnesses Stevens and Turco. We agree with

the district court that those contentions

are palpably without merit, and we do not

believe they need any more discussion than

that given them by the district court.

After the signing of Tompkins’ third death warrant the

instant proceeding commenced and a number of motions were filed.

Tompkins filed a Motion for DNA Testing of Evidence and the

state filed a Response in Opposition (R I, 31-56, 57-97).

Tompkins filed a Motion to Vacate Judgment (R II, 182-307) and

the state filed its Response (R III, 350-408). The Court

conducted a hearing on public records requests on April 11, 2001

(R VII, 1-131), a hearing on April 17, 2001 on the Motion to

Vacate (R VII, 132-177) and an evidentiary hearing on April 18,

2001 (R VIII, 178-226).

attorney Daniel Hernandez identified the sentencing order from

Page 678 of the direct appeal record on appeal and testified he

had no knowledge of its being prepared by Mike Benito (R VIII,

182-183). Hernandez was not aware of any case law in 1985 or

1986 that prohibited the prosecutor from drafting a sentencing

order. Judge Coe discussed the available aggravators or

mitigators during the charge conference and the jury recommended

7

a sentence of death (R VIII, 184).

Former prosecutor Mike Benito testified that in this case

the jury had unanimously recommended a sentence of death and

that he had prepared the sentencing order that Judge Coe signed.

He explained that Judge Coe’s secretary had called after the

sentencing phase and stated that Judge Coe needed an order

prepared and that Benito cited the three aggravating

circumstances that Judge Coe had allowed him to argue to the

jury (R VIII, 191-192). Benito could not tell whether Judge Coe

made any changes in the order that he drafted and dictated and

sent to Judge Coe (R VIII, 193). He would assume that if he had

any draft in his file back in 1989 that he would have disclosed

it in his public records request (R VIII, 194). Benito did not

have a specific recollection of being called by either Judge Coe

or the secretary in this case. He recalled from other cases

that after the jury returned with a recommendation he would tell

Benito to prepare an order with aggravating circumstances and

Benito didn’t recall if it was off the record he was told to

prepare the order before he left or whether a secretary called

later about preparing the order (R VIII, 195). The witness

identified the case progress note on the inside cover of

Tompkins’ file with the clerk at Page 486 of the direct appeal

record. A notation indicated Judge Coe or someone from his

office called Benito (R VIII, 196-197). Benito indicated it was

8

impossible that the phone call related to a new trial motion (R

VIII, 198).

Martin McClain testified that he was Tompkins’ prior counsel

in the 1989 post-conviction matter (R VIII, 199-200). He stated

that he learned that the state confessed error on the Holton

McDermott regarding a conversation she had had with Jack Gutman

about the Holton case. McClain stated that the 1989 public

records documents he received did not indicate that Benito had

drafted the sentencing order (R VIII, 201-202). He opined the

1987 entry in the case progress note was a mistake - it was

clearly 1985 - and the notation indicated Benito had been called

and advised of something set for October 11, 1985 (R VIII, 203).

McClain stated that he was aware of the prior decisions in

Nibert v. State, 508 So. 2d 1 (Fla. 1987) and Holton v. State,

573 So. 2d 284 (Fla. 1990), two cases involving Judge Coe

addressing issues that Judge Coe had delegated the drafting of

the sentencing order. McClain explained that the 1990 Holton

opinion came out after 1989 and that the Holton opinion stated

that the record did not support a claim that the state rather

than trial judge was responsible for preparing the written

findings of fact in support of the death penalty (R VIII, 205-

207). McClain stated that Benito did not indicate to him in

1989 that he had written the sentencing order nor did Judge Coe

the sentencing transcript did not reflect any oral weighing of

mitigating or aggravating circumstances and while Benito may

have been aware Judge Coe would not allow him to argue certain

things, "nothing that would indicate to me that the judge ever

indicated of what the mitigating circumstances were" (R VIII,

224).

9

disclose any ex parte connections with Benito and he would have

followed up on such disclosure (R VIII, 208).

The Court entered its written order Denying Motion for DNA

Testing of Evidence on April 12, 2001 (SR 124-125) and on April

Renewal of Motion for DNA Testing (R III, 423).

On April 20, 2001, the Court entered its Order Denying in

Part and Granting in Part Defendant’s Motion to Vacate Judgment

(R IV, 433-676). The Court denied relief on Claims I, II and

III but granted relief as to Claim V and ordered a new penalty

phase upon finding that prosecutor Benito drafted the sentencing

order and that the sentencing judge failed to independently

Court entered an Order Denying Defendant’s Motion for Rehearing

on June 15, 2001 (R V, 755-796) and these appeals follow.

10

hearing on appellant’s claim of a violation of Brady

v. Maryland, 373 US 83 (1963) or Giglio v. United

States, 405 US 150 (1972). The Court correctly

determined that the information appellant now relies

on could have been discovered with the exercise of due

diligence. Additionally, much of the material is

irrelevant and in any event cannot satisfy the

materiality requirement of Strickler v. Greene, 527 US

263, 144 L.Ed.2d 286 (1999) that the non-disclosure

was so serious that there is a reasonable probability

that the suppressed evidence would have produced a

different verdict, i.e., whether in its absence the

defendant received a fair trial, understood as a trial

resulting in a verdict worthy of confidence. In

addition, appellant’s mere repetition of contention

previously asserted, considered and rejected by both

the state and federal courts need not be reconsidered

again as nothing submitted calls into question the

resolution of those previously rejected claims.

motion for DNA testing. As stated in the court’s

order of April 12, 2001, the defendant failed to

11

set forth any compelling reasons for

mitochondrial DNA testing and it would not have

proved or disproved any material issues in this

case. The lower court further explained in its

Order Denying Rehearing on June 15, 2001, that

there is overwhelming evidence that the remains

are those of Lisa De Carr. See also King v.

State/Moore, _So. 2d_, 27 Fla. L. Weekly S65

(Fla. 2002).

appellant’s claim that the state’s failure to

preserve hair evidence for seventeen years

violates appellant’s due process rights. The

evidence does not demonstrate any bad faith on

the part of the police and thus appellant cannot

prevail under Arizona v. Youngblood, 488 US 51,

102 L.Ed.2d 281 (1988); see also King v.

State/Moore, _So. 2d_, 27 Fla. L. Weekly S65

(Fla. 2002); Merck v. State, 664 So. 2d 939 (Fla.

1995). Appellant’s request that a different

standard should be employed should be rejected.

production of public records. The court properly

held a hearing and explained that appellant was

12

not entitled to relief since Rule 3.852 is not

intended to be used as an eleventh hour fishing

expedition for records unrelated to a colorable

claim for post-conviction relief. See Sims v.

State, 753 So. 2d 66 (Fla. 2000); Glock v. Moore,

776 So. 2d 243 (Fla. 2001). As to appellant’s

desire to learn of possible contributions to

Judge Coe, financial disclosures of judges have

been a matter of record for years, and therefore

procedurally barred now. Lightbourne v. State,

549 So. 2d 1364 (Fla. 1989). As to appellant’s

request for criminal records related to jurors in

the trial, that could have been investigated

years ago using the Public Records Act. See

Buenoano v. State, 708 So. 2d 941 (Fla. 1998);

Ziegler v. State, 632 So. 2d 48 (Fla. 1993).

for a re-sentencing proceeding which was based on his

assertion that Judge Coe improperly delegated to the

prosecutor the preparation of a written sentencing

order. First of all, the claim should have been

deemed procedurally barred for his having failed to

raise this claim previously. With the exercise of due

diligence appellant could have investigated this claim

13

and litigated it at the time of the prior postconviction

motion since a notation in the case

progress notes of the direct appeal record referred to

a call to the prosecutor regarding a sentencing order

and collateral counsel was aware of decisions such as

Nibert v. State, 508 So. 2d 1 (Fla. 1987) and Holton

v. State, 573 So. 2d 284 (Fla. Sept. 27, 1990) in

which challenges were made to Judge Coe having

delegated the drafting of sentencing orders to a

prosecutor. Secondly, while the prosecutor admitted

that he relied on the three aggravators that Judge Coe

had permitted him to argue to the jury, the sentencing

findings signed by Judge Coe reflect that he found age

as a mitigating factor, thereby demonstrating -

contrary to the lower court’s ruling - that Judge Coe

did engage in independently weighing of the

aggravating and mitigating circumstances in the

instant case. Third, although it is true that in

recent years the Court has insisted (properly) that

trial judges must be the ones to draft capital

sentencing orders, it must be recognized that the

instant trial antedated such more recent

pronouncements. Appellant should not be entitled to

relief in a successive motion for post-conviction

14

relief unless appellant can satisfy the requirement of

newly-discovered evidence that it would probably

produce a life sentence. Appellant can not satisfy

that burden in light of the unanimous jury death

recommendation, the three powerful aggravating factors

shown to exist, the paucity of mitigation presented at

trial (even considered with the additional mitigation

presented in Tompkins’ prior evidentiary hearing in

1989).

15

The lower court correctly denied relief as the information

now relied upon could have been obtained earlier with the

exercise of due diligence, and in any event fails to satisfy the

strict materiality requirements of Strickler v. Greene, 527 U.S.

263, 144 L.Ed.2d 286 (1999) and similar decisions of this Court.

A. The Information Could Have Been Obtained Earlier With

Due Diligence.

The lower court correctly determined that appellant could

have with the exercise of due diligence, obtained the documents

and information he now urges he recently received in April of

2001. For example, the record demonstrates that among

appellant’s recent Public Records Requests and Responses, the

Florida Department of Law Enforcement Response and Objection

asserted that CCRC had previously filed a request in 1989 and

FDLE had provided copies of all public records related to

defendant in May of 1989 (R VI, 912). The Response and

Objection by the Office of the State Attorney for the Sixth

Circuit recited that it had responded in 1989 and provided

approximately 845 pages of records (R VI, 971). Tompkins filed

16

a Demand for Additional Public Records pertaining to the

Tompkins investigation of the De Carr homicide from the Office

of the State Attorney for the Thirteenth Judicial Circuit (R VI,

983-988) and another demand for records of the homicide

investigation of several of Bobbie Joe Long’s victims and victim

Jessie Ladon Albach (R VI, 993-997). Additionally the request

by CCR for records an April 19, 1989 did not contain the name of

Jessie Ladon Albach among the sixteen names enumerated in the

request (R VI, 1010-1012; see also R VI 1025-1026). Appellant

could have requested Albach files previously.

Additionally, the lower court found:

"With regard to a legible copy of the March

24, 1983 report now being provided to the

Defendant, the Court finds that the

Defendant is not entitled to relief. During

argument, defense counsel conceded that he

had obtained a copy of this report in 1989,

however, he was unable to read it.

Consequently, the report was provided to

Defendant previously. Defendant could have

discovered the asserted facts in the March

24, 1983 report by the use of due diligence.

As such, Defendant is not entitled to relief

with regard to the March 24, 1983 report".

(R IV, 436)

Similarly, since appellant could have sought and obtained the

documents pertaining to the Jessie Ladon Albach investigation by

the exercise of due diligence (items 5-12 listed by Judge Perry,

R IV, 435) as explained above, the lower court correctly

determined that relief should be denied due to appellant’s lack

17

of due diligence. See Glock v. Moore, 776 So. 2d 243 (Fla.

2001); Sims v. State, 753 So. 2d 66 (Fla. 2000).

Furthermore, with regard to Detective Gullo’s report on July

28, 1983, the record of the prior 1989 post-conviction record

demonstrates that CCR attorney McClain indicated that Detective

Gullo was still a potential witness, that Gullo was the

investigator for a missing person’s report between the time of

March and September 1983. McClain added that there were a

series of police reports concerning the investigation that was

conducted, leads that they turned up as to Lisa’s whereabouts.

The Court asked if they were available to McClain and McClain

answered affirmatively but he wanted to check with him in terms

of any ambiguity in the police reports (I PCR, EH 358). On the

following day, May 20, 1989, McClain reported to the court that

he had talked to Detective Gullo, gave him access to the reports

and if there was anything significant, McClain would submit it

in an affidavit (I PCR EH 364). Clearly, Tompkins’ collateral

counsel was on notice of Detective Gullo. His request for

relief now is untimely and abusive.

B. The Legal Standards - the Brady claim.

In Strickler v. Greene, 527 U.S. 263, 144 L.Ed.2d 286

(1999), the Supreme Court reiterated its ruling in Brady v.

Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963):

[1b, 5a] This special status explains

both the basis for the prosecution’s broad

18

duty of disclosure and our conclusion that

not every violation of that duty necessarily

establishes that the outcome was unjust.

Thus the term "Brady violation" is sometimes

used to refer to any breach of the broad

obligation to disclose exculpatory evidence

(footnote omitted) - that is, to any

suppression of so-called "Brady material" -

although, strictly speaking, there is never

a real "Brady violation" unless the

nondisclosure was so serious that there is a

reasonable probability that the suppressed

evidence would have produced a different

verdict. There are three components of a

must be favorable to the accused, either

because it is exculpatory or because it is

impeaching; that evidence must have been

suppressed by the State, either willfully or

inadvertently; and prejudice must have

ensued. (emphasis supplied) (144 L.Ed.2d at

302)

The Court explained:

Without a doubt, Stolzfus’ testimony was

prejudicial in the sense that it made

petitioner’s conviction more likely than if

she had not testified, and discrediting her

testimony might have changed the outcome of

the trial.

That, however, is not the standard that

petitioner must satisfy in order to obtain

relief. He must convince us that "there is

a reasonable probability" that the result of

the trial would have been different if the

suppressed documents had been disclosed to

"[T]he adjective is important. 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." 514 U.S., at 434, 131

L.Ed.2d 490, 115 S.Ct. 1555 (emphasis

supplied) (144 L.Ed.2d at 307)

19

See also D.R. Spencer v. State, _So. 2d_, 27 Fla. L. Weekly S323

(Fla. 2002); Carroll v. State/Moore, _So. 2d_, 27 Fla. L. Weekly

S214, 218 (Fla. 2002); Thompson v. State, 759 So. 2d 650, 662

(Fla. 2000); Way v. State, 760 So. 2d 903, 913 (Fla. 2000);

Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000); Sireci v.

State, 773 So. 2d 34, 41-42 (Fla. 2000); Rose v. State, 774 So.

2d 629, 634 (Fla. 2000); State v. Reichmann, 777 So. 2d 342, 362

(Fla. 2000); Maharaj v. State, 778 So. 2d 944, 954-956 (Fla.

2000); Jennings v. State, 782 So. 2d 853, 856 (Fla. 2001); Rose

v. State, 787 So. 2d 786, 795 (Fla. 2001); Cook v. State, 792

So. 2d 1197, 1203-04 (Fla. 2001); Freeman v. State, 761 So. 2d

1055, 1062 (Fla. 2000)(no Brady violation where defense either

had the information or could have obtained it through the

exercise of reasonable diligence).

Newly - Discovered Evidence

In order for a conviction to be set aside on the basis of

newly-discovered evidence, two requirements must be met. First,

to be considered newly-discovered the evidence must have been

unknown by the trial court, by the party or by counsel at the

time of trial and it must appear that defendant or his counsel

could not have known of it by the use of diligence. Second, the

newly-discovered evidence must be of such nature that it would

probably produce an acquittal on retrial. See Jones v. State,

709 So. 2d 512, 521 (Fla. 1998); see also T. Johnson v. State,

20

804 So. 2d 1218 (Fla. 2001); State v. Reichmann, 777 So. 2d 342

(Fla. 2000); Glock v. Moore, 776 So. 2d 243, 250-51 (Fla. 2001);

Sireci v. State, 773 So 2d 34, 43 (Fla. 2000); Robinson v.

State, 770 So. 2d 1167 (Fla. 2000); Sims v. State, 754 So. 2d

657, 660 (Fla. 2000).

There is no newly-discovered evidence under the foregoing

decisional case law that would entitle appellant to relief under

Jones and its progeny. The alleged new impeachment of Kathy

Stevens relates to her conduct years after trial which are

irrelevant to her trial testimony. Mr. Episcopo’s testimony at

the Holton hearing regarding his practice of dealing with

witnesses does not refute either Turco’s trial testimony or

prosecutor Benito’s at the evidentiary hearing. Nothing changes

the fact that appellant assaulted and killed Lisa De Carr and

buried her under the house.

The lower court correctly denied relief to Tompkins as none

of the documents and evidence asserted as recently obtained can

satisfy the materiality requirement demanded of Strickler,

supra, and this Court’s pronouncements. Tompkins’ first points

to undisclosed police reports and lead sheets of Detective Burke

(items 1 - 4 listed in Judge Perry’s order). As to the June 8,

1984 police report (SR 39-54), Detective Milana included a

report of a statement by Maureen Sweeney when she and Michael

Glen Willis were interviewed. Maureen Sweeney was apparently

trial defense counsel received the police report containing the

Sweeney - Willis recollections, it would have been desirable for

defense counsel to call Sweeney as a witness at trial to assert

(a) that she too was a rape victim of appellant and that Lisa

wanted her to believe the incident which had happened to her and

(b) that she had no personal knowledge of Lisa’s disappearance

21

another rape victim of Tompkins (he raped her at knife point in

November) and when she told Lisa De Carr what had happened, Lisa

replied "now do you believe me that he raped me as well."

Tompkins focuses on the part of the report in which Sweeney

remarked that it was strange the explanation she heard about

Lisa’s disappearance. She was told that Lisa, upon seeing

appellant at the kitchen table and being told that he was going

to move in, ran out the back door and that appellant chased to

catch her but she was gone. Apparently Tompkins was one who

reported that they had last seen Lisa when he moved in and she

became upset and stormed out of the house (SR 53).

Appellee notes that the Sweeney - Willis report is hearsay;

neither had personal knowledge of the events on the day in

question and apparently were reporting on what they had heard

from Tompkins or others after the disappearance. This report

does not defeat the evidence at trial by Barbara De Carr, Kathy

Stevens and Kenneth Turco concerning appellant’s assault on Lisa

the day of the disappearance and his report to Mrs. De Carr that

Lisa had run away and Tompkins’ admission of the crime (to

but relied on hearsay reports of what others including Tompkins

had said.

22

Additionally, trial defense counsel was aware of the pretrial

deposition of Detective Burke. In that deposition Burke

reported a statement by Sonia Howard and by Barbara De Carr that

it was the day before Lisa’s disappearance that appellant and

Barbara De Carr got into a big argument about Lisa not wanting

to live in the same house with appellant and he became violent

(Deposition, pp. 97, 108-09).

As noted above, with regard to the legible copy of the March

24, 1983 report, Tompkins and his counsel had the report at the

time of the 1989 evidentiary hearing. Tompkins additionally

alludes to a July 28, 1983 report (item 3 in Judge Perry’s order

- SR 55-56) of Detective Gullo in the Jessie Ladon Albach case

Barbara De Carr in which she stated that she had received

information from Mary Albach that Jessie had run away. Mrs. De

Carr stated that Jessie and Lisa were close friends, that

perhaps they were together and had many common friends. (Note

that Tompkins’ counsel McClain at the 1989 evidentiary hearing

had spoken to Gullo and said he would submit an affidavit if

anything significant developed. McClain didn’t file anything

thereafter). This report adds nothing to support a "reasonable

probability that the suppressed evidence would have produced a

different verdict" as Strickler requires. Moreover, trial

23

defense counsel was well aware from the pre-trial deposition of

Detective Burke that Lisa De Carr and Jessie Albach were good

friends (Depo. pp. 4-5).

Appellant also struggles to find significance in the item

4 handwritten lead sheets prepared by Detective Burke (SR 64-

65). To the extent that the document suggests things that were

done or might have been done during the course of the

investigation, again nothing therein demonstrates that the

information meets the stringent materiality requirement of

Strickler v. Greene. Tompkins observes there are notations of

things to do such as calling Lisa’s boyfriend Junior Davis or

inquiry about Bob McKelvin/Everett Knight. The direct appeal

record reflects that trial counsel cross-examined Detective

Burke using the November 15, 1984 deposition (DAR III, 288, 295;

see also DAR III, 299). At the prior evidentiary hearing, trial

counsel Hernandez admitted that he had access to Detective

Burke’s pre-trial deposition taken by attorney Castillo (1 PCR

I, 98) and was questioned about that deposition (1 PCR I, 99).

In the deposition Detective Burke stated that Bob McKelvin was

in prison at the time of the investigation when it focused on

Tompkins (Depo. pp. 30-34). Trial defense counsel also crossexamined

Burke at trial (as well as Barbara De Carr - DAR II,

228) regarding McKelvin having made advances to and having

propositioned Lisa (DAR III, 287). In the deposition Burke also

counsel, Detective Burke stated he interviewed Junior Davis who

said he could provide no information as to the events

surrounding Lisa’s disappearance (DAR V, 530).

24

stated that he interviewed Lisa’s boyfriend Junior Davis on June

21, 1984 who stated that he couldn’t help with any information

about events and had last seen Lisa the weekend before her

2d 1241, 1249 (Fla. 1997)(additionally, even if this Court found

that the material concerning Billy Andrews and Joseph Daniels

was newly-discovered and hence, not time barred, there still

disclosure of all information concerning preliminary,

discontinued investigations of all possible suspects in a crime.

Spaziano v. State, 570 So. 2d 289 (Fla. 1990). In other words,

simply because someone other than the defendant "was a suspect

early in the investigation, though this theory was later

abandoned, is not information that must be disclosed under

In appellant’s next category Tompkins suggests there were

police reports regarding other suspects (items 5 - 12 in Judge

Perry’s order)(SR 66-97). Apparently among the papers dealing

with the Jessie Albach investigation, there was information that

W.H. Graham who discovered the body identified as Albach had

given an interview about his observations of a vehicle and

driver in the area. An August 1982 report describes an incident

25

at the "Naked City" establishment noting a beverage law

violation or lewd and lascivious behavior. (SR 71-76)

A December 27, 1983 letter from the State Attorney recites

the final disposition on W.H. Graham for keeping a house of ill

fame - adjudication was withheld and eighteen months probation.

(R II, 22). A report by Detective Burke in the Jessie Albach

case on May 21, 1984 has an account of an interview with

of Leslie(sic) De Carr who is also missing. Mercier identified

a photo of a white male between the ages of 30 and 40 as William

Graham who was seen in the area around Keba Trailer Park and at

the Wagon Wheel. The report also indicated an interview with

Shirley Bedsole who reportedly had seen Jessie have sexual

intercourse with Billy De Carr (SR 77-83).

Additionally, there is a record showing that in June 1983

W.H. Graham was being investigated for raping a girl who worked

at the Naked City (SR 84-88; item 9 in Judge Perry’s list).

There is a police report of a June 14, 1983 phone interview with

Lori Lite (SR 89-95) in which she stated that she and Jessie

Albach were fairly close friends but she didn’t know where

Jessie was nor did Jessie tell her that she was going to run

away. There is a report that on June 9, 1984 W.H. Graham found

additional bones in the area where the body believed to be

Jessie Albach was found (R II, 225). Another report reveals

26

there are two W.H. Grahams (SR 96-97). The trial court

correctly ruled that these items relating to the Albach

investigation could have been discovered earlier and are not

relevant to the De Carr case (R III, 437). None of the items

either singularly or cumulatively satisfy the materiality

requirement of Strickler.

Appellant next argues that the list of questions to ask

Detective Burke (item 13; SR 99-101) is not irrelevant to

Burke’s substantive testimony as the lower court ruled and

compares the situation to that presented in Rogers v. State, 782

So. 2d 373 (Fla. 2001). Appellee disagrees. Unlike the general

preparatory questions listed here, Rogers involved a cassette

tape reflecting the state’s attempt to influence McDermid’s

testimony (suggesting to him explanations for other witnesses’

version and couching him as to where the getaway car was

parked). Id. at 384.

Last, appellant contends there is newly-discovered evidence

and undisclosed impeachment evidence. He contends that Kathy

Stevens served time in jail for perjury in 1986 (after

appellant’s trial). The lower court found appellant’s

allegations insufficient:

"Defendant does not set forth any facts that

show Kathy Stevens committed perjury at his

trial. Defendant also fails to set forth

the circumstances leading to Ms. Stevens

arrest for perjury. Therefore, Defendant’s

allegation with regard to Kathy Stevens is

testimony as an Attachment to his Motion for Rehearing below (R

V, 689-721)

27

conclusory, which is insufficient for

relief. Oramas v. State, 615 So. 2d 853

(Fla. 2 DCA 1993) and Flint v. State, 561

Appellee adds that any difficulties Stevens may have had after

the instant trial are irrelevant. Furthermore, at the prior

post-conviction evidentiary hearing, the parties stipulated as

to what her brief testimony would be and it was determined her

testimony was not required (1 PCR, EH 8-22).

Appellant also claims that former prosecutor Episcopo

recently testified at an evidentiary hearing in the case of

that Episcopo’s testimony refutes prosecutor Benito’s testimony

at the 1989 evidentiary hearing regarding his treatment of

Kenneth Turco. It does not.

At the Holton hearing former prosecutor Episcopo testified

as a defense witness. On cross-examination by prosecutor Chalu,

Episcopo testified that he did not make a specific plea offer to

Mr. Burkins in exchange for testimony against Holton (R V, 713,

715). Then this colloquy ensued:

Q Wouldn’t it sometimes be standard operating

procedure when dealing with a cooperating witness

who had charges of his own not to make him a

specific plea offer prior to his cooperation?

A Well, no, because you know his testimony would be

tainted and it wouldn’t be as valuable.

Q Would it also not be wise to make such an offer

28

before you found out that in fact he was willing

and did testify truthfully?

A Yeah, you also want to see what’s going to come

out. (R V, 716)

The questions and answers of Episcopo in a general hypothetical

as to whether it is prudent to make a plea offer to a witness

before learning whether he testified truthfully does nothing to

call into question Mr. Benito’s previous testimony at the 1989

evidentiary hearing in Tompkins’ case. Benito testified that

about two weeks after the trial,

"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’". (1 PCR II, EH 235)

Benito looked at him across the room and decided to nolle pros

the case. It was his decision and Turco was stunned by it.

There was no indication to Turco that he was going to nolle pros

it before he testified - it was a decision Benito made after the

conclusion of the Tompkins’ trial (1 PCR II, EH 236). Nothing

appellant submits now alters the conclusion stated by the Court

of Appeals in Tompkins, 193 F.3d at 1342, n. 14:

"Tompkins also contends that Giglio errors

were committed in connection with witnesses

Stevens and Turco. We agree with the

district court that those contentions are

palpably without merit, and we do not

believe they need any more discussion than

that given them by the district court."

Tompkins continues to assert his previously-rejected

any mention to him by Staley that she was sure of a date when

29

arguments that trial counsel rendered ineffective assistance of

counsel and that the confrontation clause was violated by the

limitation on his cross-examination of state witnesses by

counsel’s use of hearsay questions. These assertions need no

extensive rebuttal. This Court rejected his confrontation

clause argument on direct appeal. Tompkins v. State, 502 So. 2d

415, 419 (Fla. 1986). This Court rejected the post-conviction

challenge that counsel was ineffective in failing to introduce

the testimony of the witness who claimed to have seen Lisa after

the murder. Tompkins v. Dugger, 549 So. 2d 1370, 1372 (Fla.

1989):

"The evidence, however, reflects that

counsel’s investigator interviewed this

witness. At the time of the interview, the

witness had absolutely no recollection of

ever having reported seeing Lisa. Moreover,

this witness was "drying out" from drugs and

had great difficulty with her memory. It is

clear that a strategic decision was made not

to call this witness and to try instead to

present this testimony, to the extent

permitted by the trial judge, through the

hearsay testimony of Lisa’s mother".

Appellant also refers to the testimony of Gladys Staley,

appellant’s mother who previously testified at the 1989

evidentiary hearing. She testified that Lisa De Carr was at her

house about 2:30 p.m. the day of her disappearance (1 PCR II, EH

she saw the girl getting in the car (1 PCR I, EH 122) and that

family members’ allegations now were self-serving (1 PCR I,

124). Furthermore, appellee notes that in the state’s response

to discovery given to trial defense counsel, Gladys Staley when

interviewed on July 9, 1984, stated that she was not certain

that it was on the day of Lisa’s disappearance that she saw her

wearing a red shirt and blue jeans (DAR V, 51).

30

to her testimony and it need not be re-considered. Contrary to

appellant’s insinuation at Brief P. 75, the lower court did not

find counsel deficient at guilt phase. ("There was

investigation and presentation of evidence that was reasonable;

and reasonable, competent counsel would not have done it any

other way and there was not prejudice" - 1 PCR, III, 471).

Rather, the lower court found deficiency in the penalty phase

but that the prejudice prong of Strickland was not satisfied (1

PCR III, 471).

Nothing need be added to appellant’s continued complaining

that cellmate Brian Duncan committed suicide, and his challenge

to a plea agreement with Kenneth Turco was heard considered and

rejected by this Court and the federal courts.

Barbara De Carr testified at trial that appellant told her

Lisa was wearing a maroon blouse and pair of jeans when he saw

her on her way to the store/run away (DAR II, 211-212). Mrs. De

Carr subsequently found the maroon blouse described by Tompkins

in the dirty clothes and none of her jeans were missing (DAR II,

214). On cross-examination, despite the prosecutor’s objection

on hearsay grounds, De Carr admitted that several people had

31

stated that Lisa had been seen around the community (DAR II,

219). Appellant now alludes to an excerpt of De Carr’s

deposition that Wendy said Lisa had gotten into a car. If

appellant is urging this impeaches De Carr, appellee submits

that it doesn’t - it was hearsay from Wendy Chancy (and has

already been litigated that counsel chose not to use her) - and

could have been used to impeach De Carr at trial (if it was

impeachment). There is no need to revisit it here. See

Swafford v. State, _So. 2d_, 27 Fla. L. Weekly S349 (Fla.

2002)(competent, substantial evidence supported trial court

determination that collateral counsel failed to exercise due

diligence by failing to discover and file within two years

evidence of witness Lestz’ statements; other alleged Brady

violation procedurally barred since allegation was previously

raised in appeal of his Third Rule 3.850 motion and found to be

without merit).

32

Tompkins filed a Motion for DNA Testing of Evidence on April

10, 2001 contending that according to the FBI Lab Report several

hairs discovered with De Carr’s body and forwarded for

comparison "are suitable for possible future comparison" and

other hairs "did not possess sufficient individual microscopic

characteristics to be of value for significant comparison

purposes" (R I, 31-34). The state filed a Response in

Opposition noting that appellant had previously asserted that

the remains found buried under the house in a shallow grave were

not those of Lisa De Carr under an ineffective assistance of

counsel claim. The state further argued that the request was

untimely and through due diligence could have been asserted

previously. See Ziegler v. State, 654 So. 2d 1162 (Fla. 1995),

Sireci v. State, 773 So. 2d 34, 43 (Fla. 2000)(finding DNA

testing claim time barred as not filed within two years of the

test becoming available and further finding that even if

conducted the test would not "probably produce an acquittal on

retrial"). And the state argued that the evidence was

absolutely compelling that the body was that of Lisa De Carr.

65).

At a hearing on April 11, 2001, prosecutor Williams related

33

that the hairs in question could not be located and prosecutor

Vollrath testified to the efforts to locate them. An entry in

the log book in 1990 indicated that Detective Black may have

checked out a sealed package (R VII, 89-109). Detective Aubrey

Black testified that he had no involvement in the Albach or De

Carr cases, that it was his PIN on the property ledger, but not

his signature and assumed someone else signed it. He had no

recollection of receiving or having the property released to him

since he was not involved in the case (R VII, 109-116). The

Court denied the Motion for DNA Testing (R I, 102; R VII, 89).

In the Court’s order Denying Motion for DNA Testing of Evidence

hearing, the defendant conceded that hair evidence found at the

scene of the crime now sought for mitochondrial DNA testing had

been available since 1984, that mitochondrial DNA testing has

been available in judicial proceedings since 1996 and the Court

was concerned about the timing of Defendant’s request (SR 124-

125).

The Court denied relief as "the Court finds that Defendant

has failed to set forth any compelling reasons for the

mitochondrial DNA testing. Additionally, the Court finds that

mitochondrial DNA testing would not prove or disprove any

material issues in this case." (SR 124)

The Court repeated its denial of relief in the Order Denying

34

in Part and Granting in Part Defendant’s Motion to Vacate

Judgment and Sentence on April 20, 2001 (R IV, 440-441) and in

Renewal of Motion for DNA Testing (R III, 423) and in its Order

Denying Defendant’s Motion for Rehearing of the Motion to Vacate

entered on June 15, 2001 (R V, 755-760). In this last order,

the Court took occasion to expand on the earlier ruling to

explain why no relief was available under F.S. 925.11 (2001).

After reciting the requirements of a defendant to file a

petition and the requisite findings a trial court must make

after the state has responded, the Court re-emphasized that

Tompkins could not prevail:

"During the June 12, 2001, hearing, the Defendant

argued that several items should now be tested for DNA

evidence. Specifically, Defendant argued that the

hairs, bone fragment, robe, and pajama’s found should

be tested for DNA. Defendant argued that the DNA

testing will conclusively identify the remains.

However, the issue of the identity of the remains was

clearly proven at trial with overwhelming evidence as

being those of Lisa DeCarr. With regard to the

identity of the remains, the United States Court of

Appeals for the Eleventh Circuit stated:

The district court cogently summarized the

overwhelming evidence that the skeletal remains

were those of Lisa DeCarr:

The State introduced Exhibit 10, a

photograph of the skull that was taken from

the grave (R 149), for the purpose of

showing a dental anomaly of a tooth which

had grown behind the subject’s two front

teeth in the same manner as Lisa’s. Using

Exhibit 10, Dr. Diggs described this unusual

dental structure. (R 178) Subsequently,

35

Barbara DeCarr testified that her daughter

had the identical dental anomaly as that

described by Dr. Diggs. (R 208) In

addition, Stevens saw Petitioner,

immediately prior to the time of the

disappearance, assaulting Lisa. The body

was found in a shallow grave beneath the

house where she was assaulted and where she

resided with her mother, her siblings, and

Petitioner. Her remains were identified in

several ways: the unusual dental feature;

the remains being wrapped in Lisa’s robe;

and Lisa’s earrings and ring given to her by

her boyfriend being found adjacent to the

skeletal remains in a position indicating

that they had been worn by the victim.

Coupled with the unsolicited confession

Petitioner gave to Kenneth Turco, even if

the medical examiner had given misleading

testimony regarding identification of Lisa’s

body, there is no reasonable likelihood that

such testimony could have affected the

judgment of the jury.

In a footnote to the summary, the district court

pointed out that the death certificate identifying the

skeletal remains as Lisa DeCarr came into evidence

without objection.

We add to the district court’s summary

the additional facts that the skeletal

remains were those of a female in her

midteens, and there is no other evidence

that any other female in her midteens was

missing in the area. Nor has Tompkins

offered any explanation for how anyone else

came to be buried - with Lisa’s jewelry -

under the house he shared with her, the same

house in which he had been seen struggling

with her as she wore a pink robe, the very

same pink robe found on the skeleton. There

is simply no doubt that it was Lisa DeCarr

whose skeletal remains were found in that

shallow grave. With all due respect to the

advocacy obligations of Tompkins’ present

counsel, their argument in brief that "there

was very little evidence of the identity of

the deceased" is preposterous.

36

1999), cert. denied, Tompkins v. Moore, __U.S.–, 121

S.Ct. 612, 148 L.Ed.2d 99(2000). Therefore, the Court

finds that any DNA obtained from the hairs, bone

fragment, robe, and pajama’s would be unreliably

contaminated due to the location of the remains and

would not prove the Defendant’s innocence or result in

a mitigation of sentence. Therefore, Defendant’s

allegations that Florida Statute 925.11 (2001) would

apply to his case are without merit. As such, no

relief is warranted with regard to claim II." (R V,

758-759)

The lower court was eminently correct. This Court recently

addressed a similar request for mitochondrial DNA testing during

the pendency of a death warrant in King v. State/Moore, _So.

2d_, 27 Fla. Law Weekly S65. King sought testing of a hair

fragment found on victim Brady’s nightgown and three hairs

obtained in her pubic hair combings. This Court quoted

approvingly from J. Schaeffer’s order which recited in part:

The hair fragment on Natalie Brady’s

nightgown: According to the attachment filed

with the state’s response, this fragment was

a body hair, unknown as to where it came

from, the arms, the legs, or some other part

of the body. It was too small of a fragment

to determine if it was Negroid or Caucasian

in origin. It was too small a fragment to

be microscopically matched to any known

samples. When Patrolman Rosario Coniglione,

Tarpon Springs Police Department, found Mrs.

Brady, she was laying on her back in the

porch door threshold area, presumably having

crawled from her bedroom, where the fire was

started, to that area where she expired.

Her nightgown was up over her breast area,

and she was naked, except for the nightgown.

He and Officer Dawson found her and dragged

her out of the burning house, where she was

eventually covered with a sheet. Mrs. Brady

was examined by the medical examiner

preliminarily at the scene, and was

McClain seemed to suggest Mrs. De Carr as a proper suspect ("I

know that it is unusual to make an allegation that a mother can

be a suspect but certainly there have been numerous courts

37

identified by two neighbors at the scene.

Many other fire and police personnel were at

the scene. This hair fragment could have

been transferred from any one’s hair that

was on Mrs. Brady’s floor as she crawled

from her bedroom to the back door, from any

one’s hair that was on her porch area where

she expired, from any one’s hair that was on

the ground outside her house where she was

dragged away from the fire, from the

perpetrator of the rape and rape, from one

of the men who dragged her away from the

burning house, from the medical examiner,

from any of those who identified her, from

any other fire or police personnel present,

or from Mrs. Brady. Thus, even if this

fragment of a body hair could be further

re-tested for DNA, and it was determined

that it didn’t come from Mrs. Brady, or from

Mr. King, this court cannot make the

required finding under the statute or the

rule, that there exists a reasonable

probability that the defendant would be

acquitted, or that he would receive a life

sentence if the requested re-testing were

allowed. Fla. Stat. § 925.11(2)(f)3; Fla.

R. Crim. P. 3,853 (c)(5)(C). (27 Fla. L.

Weekly S at 68)

The contamination aspect was the same there as in the instant

case. If a hair found on the robe was that of appellant it adds

nothing since Tompkins lived in the residence with De Carr; if

the hair is not that of De Carr, it means nothing since hair

transfers in a contaminated scene should be expected, King,

supra. Moreover, nothing detracts from the other evidence

during the past ten years of other cases that naturally, in

which mothers have been suspects" R VII, 161). Collateral

counsel Scher argued at the June 12, 2001 rehearing that "we

still submit that there is an issue as to identity of the victim

in this case..." (SR 14) If collateral counsel is suggesting

that the victim is not Lisa De Carr but that her mother is a

legitimate suspect in the murder of another who matches Lisa in

all respects, that is beyond preposterous.

38

This Court has consistently relied on the landmark case of

Arizona v. Youngblood, 488 US 51, 57-58, 102 L. Ed. 2d 281

(1988):

...We therefore hold that unless a criminal

defendant can show bad faith on the part of

the police, failure to preserve potentially

useful evidence does not constitute a denial

of due process of law."

See King v. State/Moore, __So. 2d__, 27 Fla. Law Weekly S65

(Fla. 2002)(defendant failed to show bad faith on the part of

the state regarding the destruction of vaginal washings and

rectal swab in the Medical Examiner’s Office); See also Merck v.

State, 664 So. 2d 939 (Fla. 1995)(failure to preserve Khaki

pants was not a denial of due process pursuant to Arizona v.

Youngblood); Kelley v. State, 569 So. 2d 754 (Fla. 1990).

Appellant seemingly acknowledges that he cannot satisfy the

Youngblood test and suggests that the Court recede from

requiring a defendant to show bad faith and to adopt lesser

standards suggested by Justice Stevens or the dissenting

39

Justices in Youngblood. No persuasive reason is advanced for

the Court to abandon Supreme Court precedent and the Court

should decline appellant’s invitation.

Obviously the passage of time of some seventeen years from

the time of trial to the initial request by appellant for

testing (years after the trial, the direct appeal and a round of

post-conviction litigation completed in 1989) simply reinforces

this Court’s observation in McCray v. State, 699 So. 2d 1366,

1368 (Fla. 1997):

"As time goes by, records are destroyed,

essential evidence may be tainted or disappear,

memories of witnesses fade, and witnesses may

die or be otherwise unavailable."

There was no bad faith by the state in this case. The state

volunteered the information at the hearing on April 11, 2001.

Despite the state’s best efforts to find the hair originally

sent to the FBI, it could not be located (R VII, 89-108). The

lower court correctly found in its order Denying Defendant’s

Motion for Rehearing on June 15, 2001:

"Additionally, the Court notes that the

Tampa Police Department conducted an

investigation regarding the missing hairs

and submitted the reports to the Defendant

(See Notice of Filing, attached). The Court

finds that this report demonstrates that the

loss of the hair evidence is not a result of

bad faith but rather inadvertence. As such,

no relief is warranted with regard to claim

III."

(R V, 760)

Appellant’s failure to demonstrate that the state’s failure

not change or challenge the other evidence established at trial

confirming Lisa’s identity (the evidence of her unique occluded

tooth, physical evidence of jewelry, robe and sash wrapped

around her neck as a ligature).

40

to preserve evidence was the result of bad faith is fatal to his

claim. See King v. Moore, supra. Relief must be denied on this

In his final claim, appellant contends that the lower court

erroneously denied access to public records from the

Hillsborough County Sheriff’s office; Office of the State

Attorney of the Thirteenth Judicial Circuit; Department of

Corrections, Florida Department of Law Enforcement; Florida

Parole Commission/Office of Executive Clemency; and Department

of State, Division of Elections. The claim is meritless.

A hearing on the motion to compel production of public

records was held on April 11, 2001 (R VII, 1-130) and the Court

subsequently entered its order denying relief (R I, 111-113):

"Defendant’s Motion requests that the Court compel

production from various public agencies that had not

responded to Defendant’s public records requests prior

to April 10, 2001. However, during argument Defendant

conceded that most agencies had provided the requested

records to the repository. Defendant stated that the

only remaining outstanding issues for the Court to

resolve regarding public records request were as

follows:

1. Defendant’s request for the Hillsborough County

41

Sheriff’s Office to provide a list of names for

individuals with no identifying information

supplied by Defendant.

2. Defendant’s request for the Hillsborough County

Sheriff’s Office to provide the records for

victims of Bobby Joe Long and Donald Michael

Santini.

3. Defendant’s request for the State Attorney’s

Office for the Thirteenth Judicial Circuit to

provide a list of names for individuals with no

identifying information supplied by Defendant.

4. Defendant’s request for the State Attorney’s

Office for the Thirteenth Judicial Circuit to

provide the names and personal information

attached to the grand jury manual.

5. Defendant’s request for the Florida Department of

Law Enforcement to provide information regarding

the jurors in the Defendant’s trial.

6. Defendant’s request for the Department of

Corrections to provide information regarding the

identity of individuals administering the lethal

injection, identifying the execution team, time

specifications, command post radio logs, and

notification list.

7. Defendant’s request for the Florida Parole

Commission and Board of Executive Clemency’s to

provide any records.

8. Defendant’s request for the Division of Elections

to provide information related to the Honorable

Harry Lee Coe, III.

9. Defendant’s request for the Repository to provide

the records to CCR on an expedited basis.

The Court, after hearing testimony and argument,

finds that Defendant has failed to provide sufficient

specific and identifiable reasons as to the request

for public records listed above. The Florida Supreme

Court has held that the Defendant must be able to

identify specific concerns or issues to the trial

court that could warrant relief. See Bryan v. State,

42

748 S. 2d 1003, 1006 (Fla. 1999). The Defendant

should also provide good cause why the new public

records requests were not made until after the death

warrant was signed. Id.

The only specific issue raised at the hearing by

the Defendant dealt with potential juror misconduct.

Counsel for Defendant conceded that this issue was

known to both himself and trial counsel in 1985.

Counsel provided no explanation as to why the requests

were not made until after the Governor signed the

death warrant. The Florida Supreme Court has held

that any concerns regarding the construction of rule

3.852(h)(3) leading to a harsh result in the

nonwarrant situation should be ameliorated by rule

3.852(i). Sims v. State, 753 So. 2d 66 (Fla. 2000).

Rule 3.852(i) allows collateral counsel to obtain

additional records at any time if collateral counsel

can establish that a diligent search of the records

repository has been made and "the additional public

records are either relevant to the postconviction

proceeding or are reasonably calculated to lead to the

discovery of admissible evidence. Id. 71. The Court

is concerned regarding the timing of the voluminous

public records requests. Defendant’s public records

requests appear to be at best a "fishing expedition"

and at worst a dilatory tactic.

The Florida Supreme Court has held that this

discovery tool is, "not intended to be a procedure

authorizing a fishing expedition for records unrelated

to a colorable claim for postconviction relief. To

prevent such a fishing expedition, the statute and the

rule provide for the production of public records from

persons or agencies who were the recipients of a

public records request at the time the defendant began

his or her postconviction odyssey." Id. 70. Rule

3.852 is not intended for use by defendants as nothing

more than an eleventh hour attempt to delay the

execution rather than a focused investigation into

some legitimate area of inquiry. Id.

Accordingly, the Court finds that Defendant is not

entitled to receive the records from the individuals

or entities listed in items 1 through 8 for the

reasons set forth above.

As to Defendant’s Motion to Compel the Repository

43

to produce the record, the Repository having filed a

response and affidavit. The Court finds that the

Repository is not being dilatory in complying with

Defendant’s request for public records and the

Defendant’s request for a Motion to Compel is hereby

denied."

This Court has repeatedly indicated that Rule 3.852 requests

for public records made after a death warrant has been signed

are not intended to be used as nothing more than an eleventh

hour attempt to delay the execution rather than a focused

investigation into some legitimate area of inquiry. Sims v.

State, 753 So. 2d 66 (Fla. 2000); Glock v. Moore, 776 So. 2d

243, 253-254 (Fla. 2001); As in Glock no good cause was shown

why these public records requests were not made until after the

death warrant was signed. See Bryan v. State, 748 So. 2d 1003,

1006 (Fla. 1999), Buenuano v. State, 708 So. 2d 941, 947 (Fla.

1998).

As to appellant’s complaint regarding a desire to learn of

possible contributions to Judge Coe, as this Court noted in

Lightbourne v. State, 549 So. 2d 1364, 1366 (Fla. 1989)

financial disclosures of judges have been of record for many

years and therefore procedurally barred now.

As to appellant’s request for criminal records related to

the jurors in his trial, collateral counsel could have

investigated that matter years ago in the prior motion for postconviction

relief. The Public Records Act has been available

since the time of conviction. See Buenoano v. State, 708 So. 2d

2000)(jurors’ criminal records and non-disclosure are

insufficient as a matter of law to vitiate the entire trial or

render counsel’s performance so deficient as to warrant relief).

44

941, 952-953 (Fla. 1998); Ziegler v. State, 632 So. 2d 48 (Fla.

45

The lower court concluded that Tompkins should be given a

new sentencing proceeding based on former prosecutor Benito’s

testimony that he had been requested by Judge Coe to draft a

sentencing order and did so, utilizing the three aggravators

Judge Coe had allowed him to argue to the jury. The state would

respectfully submit that relief should have been denied on this

point (a) since the claim could have and should have been

presented earlier (b) the sentencing order of Judge Coe reflects

an independent consideration and weighing of aggravating and

mitigation circumstances as the judge found age as a mitigator,

and (c) even if prosecutor Benito’s admission were to be

regarded as newly-discovered evidence, Tompkins cannot satisfy

the requirement that it would probably produce a different

result, i.e., the imposition of a life sentence.

A. The Claim Could Have and Should Have Been Presented

Earlier.

The record on appeal on direct appeal (and appellate record

from the previous denial of motion for post-conviction relief)

reflects an entry on the case progress notes of "set 10/11/85

for order per judge (told [assistant state attorney] Benito

yesterday on phone)" (DAR 486; see also 1 PCR 480) and this

entry clearly put any appellate or collateral counsel on notice

46

that it was an item to be investigated. This is particularly

true since such a claim was being litigated across the state.

See Patterson v. State, 513 So. 2d 1257 (Fla. 1987); see also

Holton v. State, 573 So. 2d 284, 291 (Fla 1990); Spencer v.

State, 615 So. 2d 688 (Fla. 1993). Since the claim could have

been discovered through the exercise of due diligence, it is not

proper to present in a successive motion for post-conviction

relief. Buenoano v. State, 708 So. 2d 941 (Fla. 1998).

At the hearing below, trial defense attorney Hernandez

testified he had no knowledge of prosecutor Benito’s

participation in preparing the sentencing order, but

acknowledged that it is not uncommon for a judge to ask an

attorney to prepare an order and he was not aware of case law

prohibiting it in a capital case when this trial occurred (R

VIII, 184).

Judge Coe discussed the available aggravators or mitigators

during the charge conference between the attorneys (R VIII,

185). Hernandez opined it would be improper for a judge to have

an ex parte communication with a prosecutor (R VIII, 189).

Prosecutor Benito testified that after the sentencing phase

either Judge Coe or his secretary called him and needed an order

prepared on Tompkins’ case. He prepared an order based on the

three aggravating factors Judge Coe had allowed him to argue (R

VIII, 192). He couldn’t recall with the passage of time whether

47

Judge Coe made any changes after he submitted it to him (R VIII,

193). Mr. Benito could not recall whether Judge Coe told him

off the record to prepare the order or whether he got a call

from his secretary later about preparing the order (R VIII,

195). When shown the case progress notes with the notation,

Benito assumed that either Judge Coe or his secretary had called

requesting he prepare an order and Benito "knew what aggravating

circumstances he wanted in the order based on what he let me

argue during the trial" (R VIII, 197). Benito further explained

that Judge Coe would not call him for any reason except to tell

him to do an order on that case. It was impossible that the

phone call could have pertained to the next entry regarding the

new trial motion (R VIII, 195).

Martin McClain, Tompkins’ prior counsel in 1989, remained

on appellant’s case until 1998. He testified that he had not

received documents indicating that Benito had drafted the

sentencing order (R VIII, 200-202). He asserted that there was

nothing in the case progress notation, suggesting that it merely

reflected that Benito had been called and notified of something

set for October 11, 1985. The next entry showed a hearing which

had occurred on October 4. The phone call was a ministerial act

and he maintained there was nothing to indicate the order had

denied at a hearing on October 4, 1985 (DAR IV, 474-476).

48

no reason to investigate how Judge Coe drafted the sentencing

order since under the law at the time the only issue was whether

or not there was ex parte communications between the Judge and

the state regarding the sentencing order (R VIII, 205-06). He

was aware that Nibert v. State, 508 So. 2d 1 (Fla. 1987) and

Holton v. State, 573 So. 2d 284 (Fla. Sept. 27, 1990) both

involved Judge Coe and the issue of his delegating the drafting

of the sentencing order (R VIII, 206-07).

The state submits that in light of the notation in the case

progress notes in the direct appeal record about the order and

call to prosecutor Benito, that information along with

collateral counsel’s awareness of such cases as Nibert, supra,

and Holton, supra, involving contentions that Judge Coe had

delegated the drafting of the sentencing order, there was

sufficient information for collateral counsel to pursue the

leads and discover the information now urged.

(B) The Sentencing Order of Judge Coe Reflects an

Independent Consideration of Aggravating and

Mitigating Circumstances.

In the lower court’s order granting relief following an

evidentiary hearing on April 18, 2001, the court found that

former prosecutor Benito admitted to drafting a sentencing order

after being contacted by the trial judge or the judge’s office;

49

that decisions like Card v. State, 652 So. 2d 344 (Fla. 1995)

and Spencer v. State, 615 so. 2d 688 (Fla. 1993) declare that it

is improper for a judge to request a party to draft a sentencing

error which requires the weighing of aggravating and mitigating

circumstances; and that the trial court’s limitation of argument

that the court had imposed on the state in arguing aggravating

circumstances did not constitute a sufficient "weighing" by the

trial judge and thus the failure to independently weigh

aggravating and mitigating circumstances in this case entitled

Tompkins to relief (R IV, 441-442).

The state respectfully submits that while the testimony

below by prosecutor Benito supports this finding that there was

an ex parte contact - that Judge Coe requested the prosecutor

prepare a sentencing order - the conclusion that there was not

an independent weighing of aggravating and mitigating

circumstances by Judge Coe does not ineluctibly follow. Benito

testified that he drafted a sentencing order and that the

aggravating factors articulated were those that Judge Coe had

permitted him to argue to the jury (R VIII, 192). But Benito

did not testify that he included any mitigating factors. The

written sentencing findings in Judge Coe’s signed order includes

a finding of age as a mitigating factor (DAR 680) as well as a

discussion of nonstatutory mitigating circumstances:

"None, notwithstanding testimony to the

effect that the defendant was a good family

predated such decisions as Patterson v. State, 513 So. 2d 1257

(Fla. 1987) and Van Royal v. State, 497 So. 2d 625 (Fla. 1986).

50

member and a good employee" (DAR 681)

It is obvious, therefore, that Judge Coe did not fail "to

independently weigh aggravating and mitigating circumstances in

this case".

Appellee does not wish to be understood as endorsing Judge

Coe’s contact with prosecutor Benito for assistance in preparing

a sentencing order. It 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. Reichmann, 777 So. 2d 342 (Fla. 2000). However, we

must temper today’s condemnation with the acknowledgment that

Tompkins’ trial occurred seventeen years ago in 1985 (at a time

when even trial counsel Hernandez acknowledged there was no case

law prohibiting prosecutors from drafting orders for judges) and

years before this Court’s admonition in Nibert, supra, that

"Although we strongly urge trial courts to prepare the written

statements of the findings in support of the death penalty, the

failure to do so does not constitute reversible error so long as

the record reflects that the trial judge made the requisite

Here, while the trial judge may have initially improperly

51

asked the prosecutor to draft an order - and the prosecutor

drafted aggravators based on what the judge had agreed could be

presented to the jury - since the Court ultimately did its own

weighing after independently considering and finding age as a

mitigating circumstance, the lower court erred in concluding

that Judge Coe had failed to engage in independent weighing of

the appropriate factors.

Even if this Court were to reject the view that Tompkins’

claim about improper delegation of authority to draft a

sentencing order could have been and should have been discovered

through the exercise of due diligence and presented earlier,

relief should be denied since such a claim - if now considered

as one of newly-discovered evidence - cannot satisfy the test of

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

(C) Under the Newly-discovered Evidence Standard, Tompkins

Should be Denied Relief as There is no Reasonable

Probability of a Different Result.

In the instant case the jury unanimously recommended a

sentence to death. The aggravators were substantial (previous

conviction of felonies involving the use or threat of violence

to the person; murder committed while the defendant was engaged

in and attempt to commit a sexual battery of the teen-age

victim; and the murder was especially heinous, atrocious or

cruel). The mitigation submitted was insubstantial - the

defendant’s age at the time of the crime and the assertion that

52

Tompkins had a good work record and shy and non-violent

personality. These personality traits were refuted by the

evidence of appellant’s involvement in separate rape incidents

in Pasco County (quite apart from the murder of Lisa De Carr)

and even consideration of the additional mitigation subsequently

urged in the prior post-conviction hearing, including the

testimony of the palpably biased Dr. Pat Fleming would not have

yielded a different result. If previously presented, the trial

court would simply have - upon consideration of all the

aggravating and mitigating evidence - agreed with the jury and

imposed a sentence of death by rewriting the order. Since the

Jones’ standard cannot be satisfied, the lower court’s order

should be reversed.

53

Based on the foregoing arguments and authorities, the lower

court’s order denying post-conviction relief should be affirmed.

That portion of the order granting a new sentencing proceeding

should be reversed.

Respectfully submitted,

_______________________________

Assistant Attorney General

Florida Bar No. 0134101

2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607-2366

Phone: (813) 801-0600

Fax: (813) 356-1292

foregoing has been furnished by U.S. Regular Mail to, Todd G.

Suite 400, Ft. Lauderdale, Florida 33301 this _____ day of May,

2002.

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

_______________________________

54