IN THE SUPREME COURT OF FLORIDA

WAYNE TOMPKINS,

Appellant,

v. Case No. SC06-277

STATE OF FLORIDA,

Appellee.

___________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE THIRTEENTH JUDICIAL CIRCUIT,

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

ROBERT J. LANDRY

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 0134101

Concourse Center 4

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

COUNSEL FOR APPELLEE

i

TABLE OF AUTHORITIES ........................................ ii

STATEMENT REGARDING ORAL ARGUMENT............................. v

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

SUMMARY OF THE ARGUMENT ..................................... 16

ARGUMENT.................................................... 18

ISSUE ..................................................... 18

CONCLUSION.................................................. 46

CERTIFICATE OF SERVICE ...................................... 46

CERTIFICATE OF FONT COMPLIANCE............................... 46

WHETHER THE TRIAL COURT ERRED IN SUMMARILY DENYING

APPELLANT’S THIRD SUCCESSIVE MOTION TO VACATE

OSTENSIBLY PREDICATED ON NEWLY-DISCOVERED EVIDENCE –

AN AFFIDAVIT BY JAMES DAVIS, JR. – FOR APPELLANT’S

FAILURE TO DEMONSTRATE THAT HE COULD NOT HAVE

DISCOVERED THIS MATERIAL EARLIER WITH THE EXERCISE OF

DUE DILIGENCE AND TO DEMONSTRATE THAT THERE IS A

REASONABLE PROBABILITY OF ACQUITTAL ON RETRIAL WITH

THIS AFFIDAVIT.

ii

Archer v. State,

2006 Fla. LEXIS 1403 (Fla. June 29, 2006) .......... 22, 25, 28

Bolender v. State,

658 So. 2d 82 (Fla. 1995).................................. 18

Brady v. Maryland,

373 U.S. 83 (1963) .................................... passim

Buenoano v. State,

708 So. 2d 941 (Fla. 1998)................................. 25

Cardona v. State,

826 So. 2d 968 (Fla. 2002)................................. 27

Foster v. State,

810 So. 2d 910 (Fla. 2002)................................. 26

Giglio v. United States,

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

Glock v. Moore,

776 So. 2d 243 (Fla. 2001)................................. 21

Griffin v. State,

866 So. 2d 1 (Fla. 2004)........................... 32, 33, 34

Guzman v. State,

2006 Fla. LEXIS 1398 (Fla. June 29, 2006) .................. 29

Guzman v. State,

868 So. 2d 498 (Fla. 2003)............................. 28, 29

Hutchinson v. State,

882 So. 2d 943 (Fla. 2004)......................... 32, 33, 34

Johnson v. State,

804 So. 2d 1218 (Fla. 2001) ............................ 21, 26

Jones v. State,

591 So. 2d 911 (Fla. 1991)......................... 10, 24, 27

Jones v. State,

709 So. 2d 512 (Fla. 1998)............................. 21, 24

Lightbourne v. State,

742 So. 2d 238 (Fla. 1999)................................. 10

Lugo v. State,

845 So. 2d 74 (Fla. 2003).................................. 26

iii

Maharaj v. State,

778 So. 2d 944 (Fla. 2000)............................. 28, 29

Mills v. State,

684 So. 2d 801 (Fla. 1996)................................. 18

Pardo v. State,

2006 Fla. LEXIS 1404 (Fla. June 29, 2006) .................. 28

Roberts v. State,

840 So. 2d 962 (Fla. 2002)......................... 32, 33, 34

Robinson v. State,

770 So. 2d 1167 (Fla. 2000) ................................ 21

Robinson v. State,

865 So. 2d 1259 (Fla. 2004) ................................ 25

Sims v. State,

754 So. 2d 657 (Fla. 2000)................................. 22

Sireci v. State,

773 So 2d 34 (Fla. 2000)................................... 21

State v. McBride,

848 So. 2d 287 (Fla. 2003)................................. 43

State v. Reichmann,

777 So. 2d 342 (Fla. 2000)................................. 21

Strickland v. Washington,

466 U.S. 668 (1984) ................................... 31, 45

Strickler v. Greene,

527 U.S. 263 (1999) ................................... 27, 28

Swafford v. State,

828 So. 2d 966 (Fla. 2002)................................. 18

Tompkins v. Crosby,

895 So. 2d 1068 (Fla. 2005) ................................. 8

Tompkins v. Dugger,

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

Tompkins v. Florida, 493 U.S. 998 (1989), cert. den.,

Tompkins v. Florida, 493 U.S. 1093 (1990) .............. passim

Tompkins v. Moore,

193 F.3d 1327 (11th Cir. 1999), rehearing en banc denied,

Tompkins v. Moore, 207 F.3d 666 (11th Cir. 2000), cert. denied,

Tompkins v. Moore, 531 U.S. 861 (2000), rehearing denied,

Tompkins v. Moore, 531 U.S. 1030 (2000) ................ passim

Tompkins v. Singletary,

1998 U.S. Dist. LEXIS 22582 (M.D. Fla. April 17, 1998).. passim

iv

Tompkins v. State,

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

den., 483 U.S. 1033 (1987).............................. 1, 13

Tompkins v. State,

872 So. 2d 230 (Fla. 2003)............................. passim

Tompkins v. State,

894 So. 2d 857 (Fla. 2005)............................... 8, 9

United States v. Bailey,

123 F.3d 1381 (11th Cir. 1997) ............................. 30

United States v. Lopez,

985 F.2d 520 (11th Cir. 1993).............................. 29

United States v. Michael,

17 F.3d 1383 (11th Cir. 1994).............................. 29

United States v. Payne,

940 F.2d 286 (8th Cir. 1991)............................... 30

Walton v. State,

847 So. 2d 438 (Fla. 2003)................................. 25

Way v. State,

760 So. 2d 903 (Fla. 2000).............................. 8, 27

Williamson v. Dugger,

651 So. 2d 84 (Fla. 1994).................................. 25

28 U.S.C. § 2254 ............................................. 1

Florida Rule of Criminal Procedure 3.850 ...................... 5

Florida Rule of Criminal Procedure 3.851 ..................... 18

Florida Rule of Criminal Procedure 3.853 ...................... 8

v

Appellee respectfully requests that Appellant’s suggestion

of the desirability of oral argument be denied. This is a

successive and abusive motion to vacate and almost everything

asserted herein has been considered and rejected after almost

two decades of postconviction litigation by this Honorable Court

(twice) and by the federal district court (Judge Nimmons) and by

the Eleventh Circuit Court of Appeals. Repetition of rejected

meritless claims do not render them valid on the mere third or

fourth retelling.

1

PROCEDURAL HISTORY – GENERAL SUMMARY:

(a) Tompkins was convicted of first-degree murder of

fifteen-year-old Lisa DeCarr, received a unanimous jury death

recommendation and was sentenced to death. Tompkins took a

direct appeal and raised ten claims, four guilt phase and six

penalty phase issues. Tompkins v. State, 502 So. 2d 415 (Fla.

1986), cert. den., 483 U.S. 1033 (1987) (Tompkins I).

Tompkins sought postconviction relief and raised nineteen

issues in the circuit court. Relief was denied after an

that there had been a violation of Brady v. Maryland, 373 U.S.

83 (1963) and that trial counsel had rendered ineffective

assistance at the guilt and penalty phases. He also filed a

habeas corpus petition raising nine grounds for relief. This

Court affirmed the trial court’s denial and denied habeas

relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989), stay

den., Tompkins v. Florida, 493 U.S. 998 (1989), cert. den.,

Tompkins v. Florida, 493 U.S. 1093 (1990) (Tompkins II).

Tompkins sought federal habeas corpus relief pursuant to 28

U.S.C. § 2254 and the United States District Court for the

Middle District of Florida, the Honorable Ralph W. Nimmons, Jr.,

denied the petition in a thorough, unpublished opinion.

2

Tompkins v. Singletary, Case No. 89-1638-CIV-T-99B, 1998 U.S.

Dist. LEXIS 22582 (M.D. Fla. April 17, 1998).

In Tompkins’ Brady claim there Judge Nimmons addressed the

contention that the State had failed to provide prosecutor

Benito’s file memoranda regarding two telephone conversations he

had with Kathy Stevens and the Missing Children Help Center file

on Lisa DeCarr. J. Nimmons ruled: “However, none of the Brady

claims justify habeas corpus relief.” Tompkins v. Singletary,

1998 U.S. Dist. LEXIS 22582 at p.31. The district court denied

relief on the Benito file issue since trial defense counsel had

cross-examined Kathy Stevens and elicited from her that she had

initially lied to prosecutor Benito and thus had access to the

information. Tompkins v. Singletary, 1998 U.S. Dist. LEXIS

22582 at pp.34-38. The district court concluded:

… there is no reasonable probability that

availability of such evidence, either

separately or collectively, would have

changed the outcome of the trial. It cannot

reasonably be said that the Petitioner was

denied a fair trial as a result of the

prosecuting attorney's failure to

affirmatively disclose these materials.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at p.38.

The court also rejected the complaint that the prosecutor

assisted Stevens in arranging for a visit with her boyfriend who

was in jail on an unrelated charge since “such failure can

hardly be regarded as implicating such gravity as would put the

3

case in a different light or undermine the confidence in the

verdict.” Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582

at p.39. Similarly, the district court rejected the claim

pertaining to a “deal” with cellmate Kenneth Turco. Tompkins v.

Singletary, 1998 U.S. Dist. LEXIS 22582 at p.40. Additionally,

Tompkins’ complaint that the prosecutor failed to disclose

school records could not be a Brady violation since defense

counsel and deponent Detective Burke at the deposition had the

notation in question. The district court also rejected the

Brady claim on the records from the Missing Children Help

Center, a collateral matter without overarching significance;

and they could have been discovered by defense counsel through

due diligence. Tompkins v. Singletary, 1998 U.S. Dist. LEXIS

22582 at pp.41-44.

The district court additionally rejected the argument that

the State knowingly used false and misleading testimony and made

misleading and inaccurate closing argument in violation of

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

Singletary, 1998 U.S. Dist. LEXIS 22582 at pp.44-55. Tompkins’

other related assertions characterizing Mrs. DeCarr’s testimony

was misleading was “meritless.” Tompkins v. Singletary, 1998

U.S. Dist. LEXIS 22582 at pp.49-50. The district court further

rejected an assertion that Dr. Diggs gave false testimony.

4

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at pp.50-53.

After repeating the challenges to Stevens and Turco, the

district court determined:

Petitioner has not shown that any of the

witnesses gave false testimony, that the

State knew the testimony was false, or that

the alleged testimony was material, i.e.,

that there was a reasonable likelihood that

the alleged false testimony could have

affected the judgment of the jury.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at p.55.

Additionally, the federal district court rejected the

contention that trial counsel Daniel Hernandez rendered

ineffective assistance at the guilt phase. Tompkins v.

Singletary, 1998 U.S. Dist. LEXIS 22582 at pp.56-69. The Court

of Appeals agreed. On the contention that trial counsel did not

do enough to show that Lisa DeCarr was alive after the morning

of March 24, 1983 when Tompkins was seen struggling with her on

the couch, the Court of Appeals noted that counsel had

considered using Wendy Chancey as a witness and decided not to

do so because he believed she would not make a good witness. An

investigator had interviewed Chancey who had no recollection at

all of having seen Lisa on the day in question and could not

even identify a photograph of her. The Court of Appeals

concluded that Tompkins had not shown any basis for admission of

part of the police report Chancey supposedly made but can no

5

longer recall and “we will not hold an attorney ineffective for

failing to offer inadmissible evidence.” Tompkins v. Moore, 193

F.3d 1327, 1334 (11th Cir. 1999)(Tompkins III).

Tompkins appealed and raised several claims including

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

The Court of Appeals affirmed the district court’s denial.

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

banc denied, Tompkins v. Moore, 207 F.3d 666 (11th Cir. 2000),

cert. denied, Tompkins v. Moore, 531 U.S. 861 (2000), rehearing

denied, Tompkins v. Moore, 531 U.S. 1030 (2000) (Tompkins III).

(b) Tompkins next filed a second, successive motion for

postconviction relief pursuant to Rule 3.850. After a hearing

the trial court concluded that Tompkins was entitled to a new

penalty phase but denied relief on all other claims, and denied

motions for DNA testing and to compel disclosure of public

records. Tompkins appealed and raised four issues: (1) whether

the trial court erred in denying his Brady claims without an

evidentiary hearing; (2) whether the trial court erred in

denying his motion for DNA testing; (3) whether the State’s

failure to preserve evidence violated his due process rights;

and (4) whether the trial court erred in denying his motion to

compel the production of public records. The State cross6

appealed the trial court’s order granting a new penalty phase.

This Court affirmed, rejecting Tompkins’ Brady claims, affirmed

the denial of request for DNA testing, and affirming the denial

of public records request. The Court reversed the trial court’s

order granting a new penalty phase trial and reinstated the

death sentence. Tompkins v. State, 872 So. 2d 230 (Fla. 2003)

(Tompkins IV).

In Tompkins IV Appellant claimed trial court error in the

summary denial of his claim that the State withheld police

reports and other documents which contained exculpatory

evidence. These documents included: (1) a June 8, 1984 police

report; (2) a legible copy of a March 24, 1983 police report;

(3) a July 28, 1983 police report; (4) handwritten lead sheets

prepared by Detective Burke; (5) a May 3, 1984 report concerning

interviews with W. H. Graham; (6) an August 18, 1982 report; (7)

a December 27, 1983 letter from the State Attorney; (8) a May

21, 1984 report; (9) records showing that in June 1983 W. H.

Graham was being investigated for raping one of the girls who

worked at the “Naked City on June 24th;” (10) a June 14, 1983

police report of a phone interview with Lori Lite; (11) a June

9, 1984 report; (12) a May 9, 1984 report; (13) a list of

questions to be asked of Detective Burke during trial; and (14)

7

undisclosed impeachment evidence regarding witnesses Stevens and

Turco. Tompkins v. State, 872 So. 2d 230, 238 n.12 (Fla. 2003).

This Court affirmed the summary denial. The Court held

that the information related to the credibility of Stevens and

Turco was insufficiently pled (and apparently concerned events

subsequent to Appellant’s trial); the March 24, 1983 police

report was not withheld by the State. The list of questions to

be asked of Detective Burke and the Jessie Albach files failed

to meet Brady’s first prong because they do not contain

information favorable to Tompkins. 872 So. 2d at 239-240. The

June 8, 1984 police report of information related to police by

Maureen Sweeny does not undermine confidence in the verdict

since Chancey did not testify at trial, the report does not

indicate who provided the information to Sweeny, and the fact of

Lisa’s boyfriend and brother looking for her does not shed new

light on her disappearance since she was originally classified

as a runaway. 872 So. 2d at 240.

Further, the record conclusively refuted Tompkins’ claim

that the July 28, 1983 report of a phone call from Barbara

DeCarr was material because the report would not have impeached

her trial testimony. Additionally, as to Burke’s lead sheets,

prejudice was conclusively refuted by the record – the record

8

shows that trial defense counsel was aware of both Junior Davis

and Bob McKelvin during trial. Thus:

Either the undisclosed documents are not

Brady material because they are neither

favorable to Tompkins nor suppressed, or

Tompkins has not demonstrated that he was

prejudiced by the lack of disclosure.

Id. at 241. And even applying a cumulative analysis and

consideration of the undisclosed, favorable documents in

conjunction with Tompkins’ claims raised in his first motion for

postconviction relief, the Court’s conclusion as to prejudice

would not change. 872 So. 2d at 241-242, citing Way v. State,

760 So. 2d 903, 915 (Fla. 2000).

(c) Tompkins returned to this Court following the trial

court’s order dismissing for lack of jurisdiction another

(third) successive motion to vacate and a motion for

postconviction DNA testing filed under Rule 3.853. This Court

agreed that the trial court’s order of dismissal for lack of

jurisdiction was proper but permitted Tompkins to file a new

postconviction motion raising his newly discovered evidence

claims. Tompkins v. State, 894 So. 2d 857 (Fla. 2005) (Tompkins

V).

Tompkins also filed a second habeas corpus petition in this

Court which this Court denied in an unpublished opinion.

Tompkins v. Crosby, 895 So. 2d 1068 (Fla. 2005) (Tompkins VI).

9

In Appellant’s last postconviction appeal here this Court

recited that Tompkins contended that the State failed to

disclose favorable evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963) and that three witnesses’ testimony were

false in violation of Giglio v. United States, 405 U.S. 150

(1972). Tompkins also had filed a motion for DNA testing. This

Court concluded that the circuit court did not err in dismissing

his petition for lack of jurisdiction (because of the pendency

of Tompkins IV in this Court) but permitted him to file his

successive postconviction motion nunc pro tunc to February 5,

2003. Tompkins v. State, 894 So. 2d 857 (Fla. 2005) (Tompkins

V).

(d) Thereafter Tompkins filed a motion in the circuit

court urging that the State failed to disclose material and

exculpatory evidence and/or presented misleading evidence and/or

defense counsel failed to present exculpatory evidence. (R I,

The State filed its response arguing that Tompkins was

time-barred for the failure to present the Junior Davis evidence

at an earlier time and argued that the affidavit did not qualify

and further that it did not satisfy the standard of newly-

that claim has been abandoned.

10

discovered evidence under Jones v. State, 591 So. 2d 911 (Fla.

1991). (R I, 84-100).

The trial court heard argument presented by the parties on

August 29, 2005. (SR I, 24-50). On October 5, 2005 the trial

court denied the motion. As to the handwritten lead sheets

prepared by Detective Burke the court found no basis for relief

since the allegations and arguments were the same as previously

considered and rejected. As to the Junior Davis affidavit the

court ruled that Davis’ name had been known for years – having

previously been listed in police reports and elsewhere and thus

could have been known to the movant or his attorney. Further,

Appellant failed to show that the “new evidence” could not have

been discovered by or through the use of due diligence before

the expiration of the limitation period. The explanation for

the thirteen year delay was inadequate and the alleged new

evidence claim was still time-barred. Moreover, there was no

reasonable probability of a different outcome when considering

the substance of the affidavit. (R I, 6-11).

On January 5, 2006 the trial court entered its Order

Denying Rehearing. The trial court distinguished Lightbourne v.

State, 742 So. 2d 238 (Fla. 1999) which Appellant relied on;

that case had involved several key witnesses who later recanted

their testimony because they had been persuaded to lie by the

11

authorities. Here, in contrast, the Davis affidavit did not

“rise to the level of several witnesses recanting their

testimony” and was merely some impeaching evidence of Kathy

Stevens which did not address Stevens’ witnessing the assault on

Lisa DeCarr. Even if taken as true, the outcome at trial would

not have been different. (R I, 3-4).

Tompkins now appeals.

As the Court noted on direct appeal, the State’s primary

witnesses in this case included Kathy Stevens, Barbara DeCarr

and Kenneth Turco. A brief summary of their testimony and the

courts’ consideration and disposition of challenges to their

testimony now follows:

(1) Kathy Stevens: At trial Stevens testified that she

saw Lisa DeCarr struggling with Appellant on the couch. Stevens

left the DeCarr residence but did not call the police. She went

to the store and ran into Lisa’s boyfriend and advised him she

wanted to call the police. She told Junior what was going on

and he just walked away like it was nothing. Stevens got

scared, did not call the police, and went to school. (DAR V2,

252-255). On cross-examination, defense counsel elicited from

her that she did not know the boyfriend well at that time and he

was drunk at that time. Counsel further elicited from her the

admission that she had initially lied to prosecutor Benito but

12

subsequently decided to tell him the truth and that she had

initially lied to Mrs. DeCarr about the victim’s whereabouts –

before she found out that Lisa was dead. (DAR V2, 260-265).

This Court affirmed the denial of postconviction relief

after an evidentiary hearing. Tompkins v. Dugger, 549 So. 2d

1370 (Fla. 1989). Thereafter, the federal district court denied

habeas relief and rejected Tompkins’ claim that there had been a

Brady violation in the prosecutor’s failure to disclose

memoranda of his phone conversations with Stevens and for his

assisting her in arranging a visit with her boyfriend in jail on

an unrelated charged. Tompkins v. Singletary, 1998 U.S. Dist.

LEXIS 22582 at pp.34-39. Judge Nimmons also rejected an

asserted violation of Giglio v. United States, 405 U.S. 150

(1972) finding that “Petitioner has not shown that any of the

witnesses gave false testimony, that the State knew the

testimony was false, or that the alleged testimony was material,

i.e., that there was a reasonable likelihood that the alleged

false testimony could have affected the judgment of the jury.”

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at p.55.

The Court of Appeals agreed with the district court’s

disposition of the Brady claims. Tompkins v. Moore, 193 F.3d

1327, at 1331 n1 (11th Cir. 1999). And the court concurred that

13

Giglio asserted errors with Stevens were “palpably without

merit.” Id. at 1342, n14.

Thereafter, this Court rejected a claim that the State

withheld information on the credibility of Stevens based on

post-trial activity – as insufficiently pled, noting that

Tompkins failed to allege any basis that Stevens committed

perjury at trial. Tompkins v. State, 872 So. 2d 230, 239 (Fla.

2003).

(2) Barbara DeCarr: The victim’s mother testified that

she left the house on the morning of March 24, 1983, that later

that morning she sent Tompkins back to her house to get some

newspapers for packing and when he returned told her that Lisa

was watching television in her robe. Tompkins left his mother’s

house again and Barbara DeCarr did not see or speak to him again

until approximately 3:00 that afternoon. Tompkins told her that

Lisa had run away, that the last time he saw her she was going

to the store and was wearing jeans and a blouse. Tompkins v.

State, 502 So. 2d 415, at 417-418 (Fla. 1986).

After this Court’s denial of postconviction relief, U.S.

District Judge Nimmons rejected Tompkins’ contention that

Barbara DeCarr gave misleading testimony that Tompkins was the

last person to see the victim alive as meritless. Tompkins v.

Singletary, 1998 U.S. Dist. LEXIS 22582 at p.50.

14

In denying relief on Tompkins’ last visit to this Court

wherein Appellant complained of the State’s alleged failure to

provide some fourteen documents in violation of Brady, this

Court ruled that the March 24, 1983 police report had not been

withheld. 872 So. 2d at 230. Additionally, as to the July 28,

1983 police report containing an account of a phone call from

Barbara DeCarr, “the record conclusively refutes Tompkins’ claim

that the July 28 report is material evidence because the report

would not have impeached Ms. DeCarr’s trial testimony.” 872 So.

2d at 241.

(3) Kenneth Turco: Turco testified at trial that

Appellant admitted to him in a jail cell that he strangled Lisa

when she resisted his sexual advances and buried her under the

house. (DAR V3, 309-310). He also testified that he was not

promised anything for sentencing on his pending escape charge in

exchange for his testimony. (DAR V3, 311).

(4) Additionally, Detective Burke testified at trial that

he interviewed Tompkins on June 12, 1984 who informed Burke that

he had last seen Lisa DeCarr on the afternoon of March 24, 1983.

He said she was wearing a maroon shirt and a pair of blue jeans

and was coming out the back door and going to the store.

Tompkins did not tell Detective Burke during the interview that

Lisa had run away the day she disappeared. (DAR V3, 279, 284).

15

This Court first denied relief based on an alleged Brady

violation in the first round of postconviction litigation after

an evidentiary hearing. Tompkins v. Dugger, 549 So. 2d 1370

(Fla. 1989). Judge Nimmons wrote more expansively in rejecting

asserted Brady and Giglio violations of an asserted deal between

Turco and prosecutor Benito. Tompkins v. Singletary, 1998 U.S.

Dist. LEXIS 22582 at pp.40, 55. The Court of Appeals agreed the

Brady and Giglio claims were palpably without merit. 193 F.3d

at 1331 n1 and at 1342 n14. This Court recently ruled that

“Tompkins fails to allege any basis to establish that Stevens or

Turco perjured themselves at his trial.” 872 So. 2d at 239.

16

The lower court correctly denied Appellant’s successive and

abusive motion for postconviction relief. Tompkins previously

presented for the court’s consideration of the lead sheets of

Detective Burke and the courts have rejected his claim for

relief. The presentation of the affidavit of James Davis, Jr.

does not constitute proper newly-discovered evidence entitling

him to postconviction relief. The evidence is not proper newlydiscovered

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

postconviction relief. While the affidavit purports to impeach

the portion of Kathy Stevens’ testimony concerning their meeting

at the convenience store, the evidence does not call into

question or contradict the testimony of the State witnesses

regarding the commission of the murder of Lisa DeCarr. 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. Since there is no new

evidence, there is no error to add cumulatively. Alternatively,

17

consideration of all the evidence does not undermine confidence

in the outcome.

18

Pursuant to Florida Rule of Criminal Procedure 3.851

(d)(2), a defendant must allege and prove:

(A) the facts on which the claim is

predicated were unknown to the movant or the

movant’s attorney and could not have been

ascertained by the exercise of due

diligence, or

(B) the fundamental constitutional

right asserted was not established within

the period provided for in subdivision

(d)(1) and has been held to apply

retroactively…

Additionally, a defendant must allege and prove that the

claim is being raised within one year of when the basis for the

claim became available. Swafford v. State, 828 So. 2d 966 (Fla.

2002); Mills v. State, 684 So. 2d 801, 804-805 and n7 (Fla.

1996); Bolender v. State, 658 So. 2d 82 (Fla. 1995).

Here Appellant does not allege that his claims are based on

a fundamental change of constitutional law that has been held to

be retroactive and his claim that he was not able to discover

19

the facts – the affidavit of James Davis, Jr. – until receipt of

police reports in the last postconviction motion was properly

rejected below since Davis has been known to all since trial and

with the exercise of due diligence could have been found.

As noted in the lower court’s order denying relief,

Tompkins’ current motion, filed on March 18, 2005 is successive.

He previously filed a Motion to Vacate Judgment and Sentence

which the trial court denied on May 22, 1989. This Court

affirmed. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989),

cert. den., 493 U.S. 1093 (1990). Tompkins returned to the

trial court on another Motion to Vacate and on April 20, 2001

the trial court entered its Order Denying in Part and Granting

in Part Defendant’s Motion to Vacate Judgment. On appeal, this

Court affirmed the portion of the trial court’s order denying

Tompkins’ motion for postconviction relief and reversed the

portion of the trial court’s order granting a new penalty phase.

Tompkins v. State, 872 So. 2d 230 (Fla. 2003).

In the lower court’s order denying Tompkins’ latest and

third postconviction motion, the trial court initially

determined:

As to handwritten lead sheets prepared by

Detective Burke, the Court finds that the

Defendant is not entitled to relief.

20

Defendant’s allegations regarding this new

Brady material were the same as Defendant’s

previous Brady allegations and argument,

which had been addressed and rejected in

trial, and by numerous courts on appeal and

through post-conviction proceedings. As

such, Defendant is not entitled to relief

with regard to the handwritten lead sheets

prepared by Detective Burke.

R I, 6-11; also R I, 51-56. The lower court was correct. In

the previous appeal, this Court had ruled:

Finally, we conclude that as to Burke’s

lead sheets, prejudice is conclusively

refuted by the record. Tompkins contends

that the lead sheets show that Burke spoke

with Lisa’s boyfriend, Junior Davis, and had

Tompkins known this he would have

ascertained whether Davis told police about

meeting Stevens at the corner store on the

day of Lisa’s disappearance. Tompkins also

asserts that the lead sheets indicate the

true identity of a Bob McKelvin, who

allegedly attempted to solicit Lisa.

However, the record shows that defense

counsel was aware of both Junior Davis and

Bob McKelvin during trial. Defense counsel

asked Stevens on cross-examination about her

encounter with Davis at the corner store.

Defense counsel also questioned both

Detective Burke and Barbara DeCarr about

McKelvin. Detective Burke testified that he

could not recall hearing the name McKelvin

but he was aware of a neighbor who made

sexual advances towards Lisa. Barbara

DeCarr testified that McKelvin did

proposition her daughter.

872 So. 2d at 241.

Turning to the affidavit of James Davis (Junior) the lower

court found that Davis was known to the defendant as far back as

21

1989 and yet the affidavit was not completed until 2002, almost

thirteen years later. (Actually, Davis was known to Tompkins at

the time before and during trial.) Davis’ name was listed in

the police reports and was or could have been known to the

movant or his attorney. The explanation offered for the delay –

that the name Davis was a common name – was inadequate to avoid

the time bar. (R I, 8-9; R I, 53-54).

(1) Newly - Discovered Evidence

This Court has repeatedly articulated the standard in

considering newly-discovered evidence claims. 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 newlydiscovered

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,

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

22

657, 660 (Fla. 2000); Archer v. State, 2006 Fla. LEXIS 1403

(Fla. June 29, 2006).

The trial court was eminently correct that the defense had

been aware of Junior Davis before and at the time of trial. In

the pre-trial deposition of Detective Burke, which trial defense

counsel Hernandez had, the witness stated he had interviewed

Junior Davis but he could not help with any information

surrounding Lisa’s disappearance and that the last time he had

seen Lisa was the weekend before her disappearance.

(Deposition, pp.97-98, Appendix 26 to 3.850 motion in first

3.850 appeal, FSC # 74,235). A police report furnished to trial

defense counsel in discovery gave this same information and

listed a phone number for Davis:

1200 hrs., 21 Jun 84

INTERVIEWED JUNIOR DAVIS, who is the ex—

boyfriend of LISA DeCARR. JUNIOR DAVIS has

a home phone of 677—6915 and is out in the

Gibsonton area.

JUNIOR DAVIS stated that he could help the

u/signed with no information as to the

events surrounding LISA disappearance. He

stated that he was accused by BARBARA after

she disappeared of harboring LISA and that

he had talked to her several times trying to

convince her that LISA was not with him. He

stated that he even invited BARBARA inside

the house to check for LISA on one occasion.

He further stated that LISA never said

anything to him about being raped by WAYNE

but that he knew that LISA did not like

23

WAYNE because of the way WAYNE was. He

stated that the last time he saw LISA was

the weekend before her disapperance [sic].

He stated further that the whole family is

in one big mess and there always seems to be

fighting and drinking going on at the house.

DAR V5, 530. Notably, the affidavit of Davis now relied on does

not contradict Burke’s account at all. Since Tompkins and his

collateral counsel were urging at the first postconviction

proceeding in 1989 that Stevens (and others) should not be

believed, they could have investigated and sought out Mr. Davis

at that time, and thereafter during the appeal from the denial

of postconviction relief.

The only explanation advanced by Tompkins for his thirteen

year delay is that it was difficult to locate Mr. Davis. This

is clearly inadequate especially given the fact that the pretrial

police report given in discovery to trial defense counsel

provided a phone number for Davis. Tompkins argues that he

could only successfully discover Davis when he obtained

Detective Burke’s lead sheets and the Detective Milana report of

the Sweeney-Willis interviews in 2001. The contention is

specious. Burke’s lead sheets add nothing to what was already

known. Nor does the Milana report add much, a mere notation of

24

Davis, a boyfriend of approximately seventeen years of age of

Turning to the second prong of the Jones newly-discovered

evidence test, i.e., that the evidence must be of such a nature

that it would probably produce an acquittal on retrial, the

Junior Davis affidavit fails on that score. Davis offers no

evidence to refute the testimony of Stevens of what she saw at

the DeCarr residence – nor could he since he was not present.

Davis at most could testify as to his disagreement with Stevens

about seeing her at the convenience store. Davis does not

refute any testimony of Barbara DeCarr who had testified about

leaving Lisa at home and Tompkins reporting to her that Lisa had

run away. Davis does not refute the testimony of Kenneth Turco

who testified regarding Appellant’s admission of killing Lisa

when she resisted his advances and burying her under the house.

Davis does not refute the testimony of Dr. Diggs and Barbara

Sweeney (apparently yet another rape victim at knifepoint of

Wayne Tompkins) also contains the notation that Junior told

Sweeney that Lisa “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.” (Supp. V2, p.45, FSC

# SC01-1619). This is consistent with the Detective Burke

interview with Junior Davis on June 21, 1984 – which trial

defense counsel had – that he could help “with no information as

to the events surrounding Lisa disappearance” and that “the

whole family is in one big mess” (DAR V5, 530) and also with the

June 5, 1984 Detective Bird report – which trial defense counsel

also had – that Mrs. DeCarr stated when she told boyfriend that

Lisa was missing he did not seem to be concerned (DAR V5, 563).

25

DeCarr that Lisa’s body was buried under the house wearing her

robe. Davis does not even contradict anything Detective Burke

stated. In summary, the Davis affidavit does not offer or

suggest anything to indicate that consideration of his current

views would probably result in acquittal on retrial. This Court

has acknowledged that in some circumstances recantation of trial

testimony can constitute newly-discovered evidence – see Archer,

“benefit” of recanted testimony since there is no witness who

has recanted his (their) trial testimony. See also Robinson v.

State, 865 So. 2d 1259, 1263 (Fla. 2004)(after noting that prior

Brady and Giglio claims had been rejected as procedurally barred

and meritless, the appellant “has failed to present any new law

or fact in this new round of postconviction proceedings that

warrants a reconsideration of our previous opinion.”);

Williamson v. Dugger, 651 So. 2d 84, 89 (Fla. 1994)(affirming

summary denial of claim based on newly discovered evidence since

supporting affidavits constitute at best impeachment evidence

and does not satisfy the standard requiring that evidence would

probably produce an acquittal on retrial); see also Buenoano v.

State, 708 So. 2d 941, 951 (Fla. 1998)(same); Walton v. State,

847 So. 2d 438 (Fla. 2003)(Walton’s Brady claim cannot succeed

since evidence known by a defendant cannot violate the precepts

26

of Brady and not shown to be material, i.e., it did not put the

whole case in such a light as to undermine confidence in the

verdict; the corollary newly-discovered evidence claim fails as

accomplice was available at time of trial and his recantation

was simply a new version from a witness/participant who had

presented multiple stories since the crime); Foster v. State,

810 So. 2d 910, 915 n5 (Fla. 2002)(the allegation of newlydiscovered

evidence is not properly presented since Foster knew

of ex parte meeting with jury venire at time of trial; his

counsel could have attempted to discover what went on at that

meeting through due diligence and filed a timely pre-trial

motion); Lugo v. State, 845 So. 2d 74 (Fla. 2003)(No Brady

violation and no entitlement to new trial on grounds of newlydiscovered

evidence where information related to extortion

victim’s indictment on federal Medicare fraud charges would not

have changed verdict and where defendant had been aware during

trial of victim’s possible involvement in Medicare fraud);

Johnson v. State, 804 So. 2d 1218, 1223 (Fla. 2001)(Illegible

copy of police notes and police investigation of a co-suspect is

not newly-discovered evidence nor is it withheld Brady evidence.

The fact that the police might have investigated the possibility

of a co-suspect does not establish a reasonable probability that

the outcome would be different had Johnson presented this

27

information at trial and cannot satisfy either the Brady or

Jones standards).

(2) Any 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 frivolous. This

Court previously in Tompkins v. State, 872 So. 2d 230 (Fla.

2003)(Tompkins IV) cited Strickler v. Greene, 527 U.S. 263

(1999) as enunciating the three components of a true Brady

violation: [1] The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is

impeaching; [2] that evidence must have been suppressed by the

State, either willfully or inadvertently; and [3] prejudice must

have ensued. Tompkins IV at 238-239. See also Cardona v.

State, 826 So. 2d 968, 973 (Fla. 2002); Way v. State, 760 So. 2d

903, 910 (Fla. 2000). Under the prejudice prong, the defendant

must show that the suppressed evidence is material, i.e., that

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.

Id. at 239.

Tompkins has failed to satisfy the burden of demonstrating

a Brady violation since even if the Davis affidavit is deemed

28

favorable to him there has been no suppression or withholding of

evidence by the State. Davis’ affidavit does not assert that

State authorities had the information which he now shares nor

does he contradict what Detective Burke mentioned in his

conversation with Davis. Tompkins also fails to satisfy the

third Brady prong that prejudice has ensued. Davis’ assertion

of not meeting Stevens at the convenience store cannot

reasonably be taken to put the whole case in such a light as to

undermine confidence in the verdict. See Maharaj v. State, 778

So. 2d 944, 953 (Fla. 2000); Strickler v. Greene, 527 U.S. 263,

290 (1999); Archer v. State, 2006 Fla. LEXIS 1403 (Fla. June 29,

2006); Pardo v. State, 2006 Fla. LEXIS 1404 (Fla. June 29,

2006).

(3) In that same opinion this Court noted in footnote 9

that to establish a violation of Giglio v. United States, 405

U.S. 150 (1972) a defendant must show that (1) the testimony was

false; (2) the prosecutor knew of the false testimony; and (3)

the testimony was material. Id. at 237.

See also Guzman v. State, 868 So. 2d 498 (Fla. 2003) that

to establish a Giglio violation, it must be shown that: (1) the

testimony given was false; (2) the prosecutor knew the testimony

was false; and (3) the statement was material. Id. at 505.

Under Giglio, where the prosecutor knowingly uses perjured

29

testimony, or fails to correct what the prosecutor later learns

is false testimony, the false evidence is material “if there is

any reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Id. at 506. See also

Guzman v. State, 2006 Fla. LEXIS 1398 (Fla. June 29, 2006).

Unlike the instant case, the defendant there satisfied the first

two prongs of Giglio, i.e., the testimony given was false and

the prosecutor knew the testimony was false.

Of course, a Giglio violation of the prosecutor’s knowing

use of perjured testimony is not established merely because one

witness offers testimony that is different to that of another.

See, e.g., United States v. Michael, 17 F.3d 1383 (11th Cir.

1994)(fact that government agent’s testimony regarding

defendant’s participation at drug transaction was contrary to

other agent’s testimony at pre-trial detention hearing did not

amount to showing that prosecutor knowingly presented false

testimony); United States v. Lopez, 985 F.2d 520 (11th Cir.

1993)(fact that witness and another co-conspirator remembered

incidents and participants differently and told different

stories was insufficient to establish government’s knowledge);

Maharaj v. State, 778 So. 2d 944, 956 (Fla. 2000)(perjured

testimony claim without merit where allegation based on minor

inconsistencies in a civil lawsuit conducted after the criminal

30

trial); United States v. Bailey, 123 F.3d 1381, 1395-96 (11th

Cir. 1997)(“Instead of showing perjury, we conclude that Bailey

has demonstrated nothing more than a memory lapse, unintentional

error, or oversight by Agent Hudson.”); United States v. Payne,

940 F.2d 286, 291 (8th Cir. 1991)(“We recognize, however, that

it is not enough that the testimony is challenged by another

witness or is inconsistent with prior statements, and not every

contradiction in fact or argument is material.”).

Similarly, the Davis affidavit cannot establish a Giglio

violation of the State’s knowing use of false testimony since

the affidavit does not show that anyone committed perjury or

that the prosecutor knowingly used perjured testimony or that

such perjury was material, i.e., that there is a reasonable

likelihood that the false testimony could have affected the

judgment of the jury, especially since Davis has no testimony to

offer about the circumstances of the crime. At most, Davis

offers a recollection at odds with Stevens about seeing him at

the convenience store after she had been to the DeCarr house.

No witness has come forward to recant their trial testimony and

allege that he (or they) testified falsely and that the

prosecutor knew it.

(4) Lastly, the Davis affidavit does not demonstrate that

trial counsel rendered ineffective assistance of counsel under

31

the seminal decision of Strickland v. Washington, 466 U.S. 668

(1984). This Court previously ruled that counsel was not

ineffective in making a strategic decision not to use Wendy

Chancey as a witness and to use hearsay testimony of other

witnesses. Tompkins, 549 So. 2d at 1372-1373. See also

Tompkins v. Moore, 193 F.3d at 1334. Trial counsel was neither

deficient nor did prejudice result from his not producing Mr.

Davis to assert his disagreement with Stevens on seeing her at

the convenience store.

Moreover, trial counsel cannot be deemed ineffective in

failing to pursue Junior Davis as a witness. In addition to

having Detective Burke’s police report and taking his deposition

which elicited that Davis had no information about Lisa’s

disappearance or death, trial counsel also had a police report

from Detective Bird of June 5, 1984 that Barbara DeCarr stated

that when she told the boyfriend that Lisa was missing he did

not seem to be concerned. (DAR V5, 563).

There is neither deficiency nor resulting prejudice.

Finally, in order to use such inconsequential testimony as

the federal courts noted:

…if trial counsel had called Wendy Chancey

or any other witness to testify at the guilt

stage, under Florida law he would have

forfeited his right to both open and close

the arguments before the jury.

32

193 F.3d at 1334-1335. That option would not have been prudent

since counsel already had elicited from Stevens on crossexamination

that she had lied to Barbara DeCarr and prosecutor

Benito. (DAR V2, 264-265), and what is now submitted via Davis

is insignificant.

The trial court has correctly determined that Appellant’s

recent presentation of Junior Davis’ affidavit does not

constitute valid newly-discovered evidence to warrant

consideration of this time-barred claim. Since Mr. Davis’

affidavit does not constitute newly-discovered evidence (he was

known to trial counsel and Appellant through discovery and the

testimony of Detective Burke and Barbara DeCarr), there is no

need to do further cumulative analysis. As stated in Roberts v.

State, 840 So. 2d 962, 972 (Fla. 2002):

However, claims of cumulative error are

properly denied where individual claims have

been found without merit or procedurally

barred. See Rose v. State, 774 So. 2d 629,

637 (Fla. 2000); Downs v. State, 740 So. 2d

506, 509 n.5 (Fla. 1999).

See also Hutchinson v. State, 882 So. 2d 943 (Fla. 2004)(since

trial court did not abuse discretion on any of three alleged

errors, there are not errors to consider cumulatively); Griffin

v. State, 866 So. 2d 1 (Fla. 2004)(where individual claims of

error alleged are either procedurally barred or without merit, a

claim of cumulative error must fail).

33

In Roberts v. State, 840 So. 2d 962 (Fla. 2003) this Court

explained that the case law requires cumulative analysis of

newly-discovered evidence:

In determining whether newly discovered

evidence warrants setting aside a

conviction, a 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 trial to determine whether

the evidence would probably produce a

different result on retrial. See

Lightbourne v. State, 742 So. 2d 238, 247

(Fla. 1999); Jones v. State, 709 So. 2d 512,

521 (Fla. 1998). This cumulative analysis

must be conducted so that the trial court

has a “total picture” of the case.

Lightbourne, 742 So. 2d at 247. However,

claims of cumulative error are properly

denied where individual claims have been

found without merit or procedurally barred.

See Rose v. State, 774 So. 2d 629, 637 (Fla.

2000); Downs v. State, 740 So. 2d 506, 509

n.5 (Fla. 1999).

Id. at 972. See also Hutchinson v. State, 882 So. 2d 943 (Fla.

2004)(since trial court did not abuse discretion on any of three

alleged errors, there are no errors to consider cumulatively);

Griffin v. State, 866 So. 2d 1 (Fla. 2004)(where individual

claims of error alleged are either procedurally barred or

without merit, a claim of cumulative error must fail).

Appellee would respectfully submit that since the

individual claims have been found to be without merit – as

34

Roberts, Hutchinson and Griffin teach – any claim of cumulative

error must fail.

However, as explained below, even if this Court were to

again engage in a cumulative analysis, Tompkins is not entitled

to any relief.

Cumulative analysis:

1. Evidence impeaching Kathy Stevens:

Appellant repeats the complaints previously raised in

earlier collateral challenges that prosecutor Benito did not

disclose his file memoranda of conversations with Kathy Stevens.

This Court found no Brady violation in Tompkins II. Federal

district court Judge Nimmons discussed in detail Tompkins’

challenge to the Benito file memoranda and the Missing Children

Help Center file on Lisa DeCarr, as well as the visit to the

boyfriend in jail. None of the claims merited relief. Trial

defense counsel had cross-examined Kathy Stevens and elicited

from her that she had initially lied to prosecutor Benito and

thus had access to the information. Moreover, the Missing

Children Help Center file could have been discovered with due

diligence. Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582

at 34-44. Similarly, the alleged failure to disclose school

records could not be deemed violative of Brady since trial

counsel’s deposition of Detective Burke revealed the notation in

35

question. Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582

at pp.41-42.

When Tompkins appealed that ruling, the Court of Appeals

deemed the arguments too insubstantial to merit discussion.

Tompkins v. Moore, 193 F.3d 1327, 1331 n1 (11th Cir. 1999).

Adding these meritless claims to the insignificant fact

that James Davis, Jr. disagrees with Stevens about having seen

her at the convenience store that morning does nothing to

undermine confidence in the outcome.

2. Evidence impeaching Barbara DeCarr:

After this Court’s denial of Tompkins’ first postconviction

motion, District Judge Nimmons ruled that assertions

characterizing Mrs. DeCarr’s testimony as misleading was

“meritless.” Tompkins v. Singletary, 1998 U.S. Dist. LEXIS

22582 at pp.49-50.

Tompkins subsequently returned to this Court asserting

challenges to the failure to provide police reports and other

documents. This Court ruled “the March 24, 1983, police report

was not withheld by the State.” 872 So. 2d at 239.

Additionally, this Court rejected the contention that a July 28,

1983 report contained an account of a phone call from Barbara

DeCarr that contradicted her trial testimony. The Court ruled:

“the record conclusively refutes Tompkins’ claim that the July

36

28 report is material evidence because the report would not have

impeached Ms. DeCarr’s trial testimony.” 872 So. 2d at 241.

Again, this Court also rejected the argument that the

information related to police by Maureen Sweeny in the June 8,

1984 police report supported Wendy Chancey’s version of the

events and supported the defense theory that Lisa ran away and

“the record in this case conclusively demonstrates that the

Nothing in the Junior Davis affidavit detracts from Mrs.

DeCarr’s testimony.

3. Evidence impeaching Kenneth Turco:

As did this Court, Judge Nimmons previously rejected the

claim of a deal pertaining to Turco and prosecutor Benito.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at p.55.

The district court added:

Petitioner has not shown that any of

the witnesses gave false testimony, that the

State knew the testimony was false, or that

the alleged testimony was material, i.e.,

that there was a reasonable likelihood that

the alleged false testimony could have

affected the judgment of the jury.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at p.55.

37

Subsequently, the Court of Appeals agreed that asserted

Giglio errors related to Stevens and Turco were “palpably

without merit.” 193 F.3d at 1342 n14. And in a later visit to

this Court, this Court ruled that Tompkins failed to allege any

basis that Turco perjured himself at this trial. Tompkins v.

State, 872 So. 2d at 239. Obviously, the Junior Davis affidavit

As to the claim that trial counsel was ineffective in

failing to use Appellant’s mother Gladys Staley as a witness to

show that Lisa had been seen at a time subsequent to her

disappearance, Judge Nimmons’ order adequately disposed of that

contention and the Junior Davis affidavit does not call for

revisiting the issue. Judge Nimmons explained that the officer

completing a report relative to Staley stated that Staley was

not certain that the date she allegedly saw Lisa DeCarr at her

house at approximately 2:30 p.m. was the date Lisa disappeared.

Trial counsel was not ineffective for failing to call a witness

reconsider his previously-rejected argument on witness Turco.

Appellant previously in this Court relied on Mr. Episcopo’s

observations in the case of State v. Holton. Mr. Episcopo’s

questions and answers in a general hypothetical do nothing to

call into question prosecutor Benito’s testimony at the 1989

evidentiary hearing in Tompkins’ case. (1 PCR II, EH 235).

There is no need to revisit and alter this Court’s most recent

proclamation that Tompkins “fails to allege any basis to

establish that Stevens or Turco perjured themselves at his

trial.” Id.

38

to testify who was not sure of the date she last saw Lisa.

Moreover, since Barbara DeCarr was apparently at Staley’s home

from 9:00 a.m. until 3:00 p.m., if Lisa had visited there at

2:30 p.m. on the date of her disappearance, Barbara DeCarr would

presumably also have seen her. Tompkins v. Singletary, 1998

U.S. Dist. LEXIS 22582 at p.66 and fn22; DAR V2, 209. The

Junior Davis affidavit adds nothing to this.

As to the claim that Tompkins was not given lead sheets of

Detective Burke, this Court has concluded that prejudice is

conclusively refuted by the record since trial defense counsel

was aware of both Junior Davis and Bob McKelvin. 872 So. 2d at

241. This Court also rejected the contention that the list of

questions for Detective Burke and documents in the Albach file

warranted relief since they did not contain information

favorable to Tompkins. 872 So. 2d at 239-240. The complaint

about dental records testimony was decisively rejected by the

district court and the Court of Appeals. 193 F.3d at 1339-1342.

Appellant again complains about police records lead sheets

of undisclosed other suspects; Tompkins notes Bob McKelvin as a

possible suspect, and police reports mentioned that Lisa DeCarr

and Jessie Albach were friends, that W. H. Graham had problems

at the Naked City night club. This Court previously rejected

39

these Brady claims in Tompkins IV. This Court noted that trial

counsel was aware of McKelvin, 872 So. 2d at 241, and:

The Albach documents contain statements

regarding Lisa DeCarr and provide

information about a W.H. Graham, a person

who Tompkins apparently claims is another

likely suspect. However, other than the

fact that Jessie and Lisa were friends,

there is no indication in these reports that

Lisa ever had contact with W.H. Graham.

Further, the statements about Lisa are

general--that Lisa was missing and was

friends with Jessie. Thus, these files do

not provide the same type of information

that this Court concluded was favorable to

the defendant in Rogers.

Id. at 240.

The new discovery of Junior Davis adds nothing that would

alter the Court’s prior disposition of these matters.

Appellant repeats his assertion from his previous

postconviction motion alluding to a list of questions to be

asked of Detective Burke during trial. This Court rejected the

claim then:

The few answers indicated on the question

sheet are irrelevant to Burke’s substantive

testimony. Contrary to Tompkins’

assertions, the alleged nondisclosure of the

list of questions in this case is not

analogous to the situation presented in

Rogers v. State, 782 So. 2d 373, 384 (Fla.

2001), where this Court held that a cassette

tape, which revealed coaching by the

prosecutor and conflicting accounts of the

witness’s testimony, was favorable to the

defendant. Unlike the tape at issue in

Rogers, the list of questions in this case

40

does not show any attempt by the prosecutor

to direct Burke’s testimony. Nor does the

list indicate any testimony contrary to that

presented at trial.

Tompkins IV, at 239.

Tompkins’ alleged recent discovery of Junior Davis adds

nothing to merit reconsideration or altering the court’s

resolution.

Tompkins regurgitates his claim that the medical examiner

at trial presented “false testimony” about dental records. The

district court addressed this issue and concluded:

While Dr. Diggs’ initial testimony regarding

an identification from dental records may

have been vague, it was not false or

misleading. … No one, including the

medical examiner, testified that the dental

records shown to the jury were compared to

previous dental records to establish Lisa

DeCarr’s identity.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582, at p.53.

The Eleventh Circuit Court of Appeals opinion was more

expansive in rejecting this claim. Tompkins v. Moore, 193 F.3d

1327, 1339-1342 (11th Cir. 1999).

This Court thereafter acknowledged the federal courts’

determination that the false testimony of the medical examiner

contention was meritless. Tompkins, 872 So. 2d at 237.

The Court of Appeals opined:

41

… Tompkins has failed to meet the threshold

requirement that he show false testimony was

used.

193 F.3d at 1340.

There was no false testimony about the

existence of pre-mortem dental x-rays or

records.

Even if there had been false testimony

on the subject, and even if the State had

known it was false, Tompkins’ Giglio claim

would still fail on the materiality element,

because he has not shown that the testimony

in question could have had an effect on the

verdict.

193 F.3d at 1341.

After summarizing the district court’s discussion of the

overwhelming evidence, the Court of Appeals added:

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.

193 F.3d at 1342.

Tompkins’ present assertion of his recent discovery of

Junior Davis adds nothing and does not render his prior claim

continues to rely on the ridiculous assertion in the 1989 round

of collateral litigation in the Jerry Behring affidavit that

“Lisa is still alive.” Tompkins II. (PCR 1, Vol. 7, R.1026).

42

Tompkins now (again) alludes to a police report indicating

that Barbara DeCarr told police she last saw Lisa at 1:30 or

2:00 p.m. on March 24, 1983. Tompkins last presented this

argument in Tompkins IV, the appeal from denial of successive

postconviction motion. This Court determined that the record

conclusively refutes that a Brady violation occurred:

We also agree with the trial court’s

conclusion that the March 24, 1983, police

report was not withheld by the State. As

the trial court noted, “during argument,

defense counsel conceded that he had

obtained a copy of . . . [the March 24]

report in 1989, however, he was unable to

read it.” Because defense counsel knew of

the report and could have requested a

legible copy, a Brady violation is

conclusively refuted.

872 So. 2d at 239.

Appellant’s claim of having recently found Junior Davis

adds nothing meriting reconsideration of this previously

considered and rejected claim.

Appellant is merely attempting an untimely and improper

rehearing when his claim has previously been rejected on an

ineffective assistance of counsel challenge and a Brady

violation. Moreover, as District Judge Nimmons found in denying

federal habeas corpus relief:

Petitioner claims that Barbara DeCarr gave

misleading testimony when “she alleged that

Mr. Tompkins was the last person to see the

victim alive.” (R 210-11). The fact is

43

that, as a cursory reading of that portion

of her testimony relied upon by Petitioner

reveals, Barbara DeCarr did not testify that

Petitioner was the last person to see the

victim alive. She did not testify to that

either during the excerpt relied upon by

Petitioner (R 210-11) or at any other

portion of her testimony.

Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582 at pp.49-50.

Appellant repeats his contention advanced in Tompkins IV

that he had received a “legible” copy of the March 24, 1983

report – he had obtained a copy of it but was unable to read it.

As the Court will recall this Court rejected this Brady claim:

Because defense counsel knew of the report

and could have requested a legible copy, a

Brady violation is conclusively refuted.

872 So. 2d at 239.

But Tompkins perseveres. He argues that this March 24,

1983 report in which Barbara DeCarr is listed as complainant

demonstrates that “Barbara told the police officer on March 24th

that she, Barbara saw Lisa at 1:30 to 2:00 pm. on that date.”

(Brief, p.10 at fn 12). Appellee will repeat that this Court

has rejected this precise contention and thus the law of the

case doctrine and res judicata precludes its relitigation. See

State v. McBride, 848 So. 2d 287 (Fla. 2003).

In addition to the fact that there is no Brady violation

and the fact that law of the case doctrine and res judicata

precludes further review, Appellee adds that substantively this

44

police report adds nothing to Tompkins’ continued attempt to

impeach Barbara DeCarr because in her deposition on March 5,

1985 (found at Appendix 27 in the first postconviction appeal,

FSC Case Nos. 74,098, 74,235) DeCarr testified that following

Tompkins’ report to her that Lisa had run away she flagged down

a police woman and provided a picture of Lisa along with her

date of birth and signed the paper. He – meaning Wayne Tompkins

– “gave all the information.” (Deposition, p.28). Later at

pages 40-41 of the deposition when asked whether she told police

at that time that Lisa’s purse was missing, Mrs. DeCarr answered

“No, sir. I didn’t tell the police anything. Wayne did all the

talking.” Thus, it is clear that Barbara DeCarr did not tell

stakes are required for this vampire heart.

Appellant attempts to re-present the claim that trial

counsel was ineffective in failing to use Wendy Chancey. This

Court in denying Appellant’s first postconviction motion

observed that a strategic decision was made not to call this

witness and to try to present the testimony to the extent

permitted by the trial judge through hearsay testimony.

Tompkins II, at 1372. The federal courts similarly rejected the

in 1989, but also trial counsel had been furnished the report in

discovery prior to trial. (DAR V5, 541-542).

45

claim. See Tompkins v. Singletary, 1998 U.S. Dist. LEXIS 22582

at pp.58-66; Tompkins v. Moore, 193 F.3d 1327, 1334-1335 (11th

Cir. 1999)(noting that trial counsel believed Chancey would not

be a good witness, a defense investigator noted she had no

recollection of having seen Lisa on the day in question and

could not even identify a photo of Lisa; there was no evidence

that at the time of trial Chancey remembered anything about the

events on the day in question or even remembered Lisa DeCarr;

and her testimony as to statements in the police reports would

have been inadmissible).

In summary, the Junior Davis affidavit cannot support a

claim for relief by Tompkins, either under a theory of newlydiscovered

evidence or a Brady violation or a Giglio violation

or an ineffective counsel claim pursuant to Strickland v.

Washington, 466 U.S. 668 (1984).

46

Based on the foregoing arguments and authorities, the order

of the lower court denying relief should be affirmed.

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. Regular Mail to Martin J.

McClain, Special Assistant Capital Collateral Regional Counsel,

CCRC-South, 141 N.E. 30th Street, Wilton Manors, Florida 33334,

and Neal Dupree, CCRC-South, 101 NE 3rd Ave., Suite 400, Fort

Lauderdale, Florida 33301, this ______ day of July, 2006.

I HEREBY CERTIFY that the size and style of type used in

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

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

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

__________________________________

ROBERT J. LANDRY

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 0134101

Concourse Center 4

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

COUNSEL FOR APPELLEE