1

This appeal involves the summary denial of Mr. Tompkins'

second Rule 3.850, as well as related motions on which

evidence was taken. References in the Brief shall be as

follows:

(R. ) -- Record on Direct appeal;

(PCR. ) -- Record on first postconviction appeal;

(PCR2. ) -- Record in this instant appeal;

(T. ) -- Transcript of Hearings below.

Other citations shall be self-explanatory.

Mr. Tompkins requests that oral argument be heard in this

case. This Court has not hesitated to allow oral argument in

other capital cases in a similar posture. A full opportunity

to air the issues through oral argument would be more than

appropriate in this case, given the seriousness of the claims

involved and the stakes at issue.

This brief is typed in Courier 12 point not

proportionately spaced.

2

iREQUEST FOR ORAL ARGUMENT iSTATEMENT OF FONT iTABLE

OF CONTENTS iiiTABLE OF AUTHORITIES . . . . . . . . . . . .

. . . . . . . . . . ivSTATEMENT OF THE CASE AND OF THE

FACTS 1 A. PROCEDURAL HISTORY. 1 B. RELEVANT

FACTS ADDUCED AT TRIAL. 2SUMMARY OF ARGUMENTS 24ARGUMENT I

THE LOWER COURT ERRONEOUSLY FAILED TO GRANT AN

EVIDENTIARY HEARING ON LEGALLY SUFFICIENT ALLEGATIONS THAT THE

STATE FAILED TO HONOR ITS OBLIGATION UNDER BRADY V. MARYLAND

TO DISCLOSE TO MR. TOMPKINS FAVORABLE EVIDENCE THAT

DEMONSTRATED THAT THE THREE MAIN WITNESSES AT MR. TOMPKINS

TRIAL TESTIFIED FALSELY AND THAT THE PROSECUTOR’S CLOSING

ARGUMENT WAS FALSE IN VIOLATION OF GIGLIO V. UNITED STATES.

26 A. INTRODUCTION. 26 B. THE ALLEGATIONS

CONCERNING DOCUMENTS FIRST PRODUCED IN 2001. 27 1.

Undisclosed Police Reports and Lead Sheets 31 2.

Police Reports Regarding Other Suspects. . . 45 3.

Undisclosed Script of Questions. 51 4. Newly-

Discovered and Undisclosed Impeachment Regarding Key

Witnesses. 52 C. MR. TOMPKINS IS ENTITLED TO RELIEF.

57 D. CUMULATIVE ANALYSIS. 62 1. Previous

Brady Information. 62 a. Undisclosed memoranda

regarding Kathy Stevens. . . . . . . . . . . . . . . .

. . 63 b. Undisclosed deals with key witnesses.

66 c. Undisclosed records from victim's school.

68 d. Undisclosed records from Missing Children's

Help Center. 69 2. Previous Ineffectiveness

Claims. 70 3. Previous Claims Of Confrontation

Clause Violations. 79 a. Other witnesses had

seen the victim alive. 79 b. Corroboration of Mr.

Tompkins statements. 82 c. Other suspects to the

crime. 83 E. CONCLUSION. 83ARGUMENT II THE LOWER

COURT ERRED IN DENYING MR. TOMPKINS' MOTION FOR DNA TESTING.

85ARGUMENT III THE STATE'S FAILURE TO PRESERVE

EVIDENCE WHICH COULD BE DNA TESTED VIOLATES DUE PROCESS UNDER

THE FLORIDA AND UNITED STATES CONSTITUTIONS. 92ARGUMENT IV

THE LOWER COURT ERRED IN NOT ORDERING THE PRODUCTION OF

RECORDS PURSUANT TO CHAPTER 119 AND RULE 3.852 98CONCLUSION

100CERTIFICATE OF SERVICE 101CERTIFICATE OF

COMPLIANCE 101

3

Arbelaez v. State,

775 So. 2d 909, 914-15 (Fla. 2000) . . . . . . . . . . . 25

Arizona v. Youngblood,

488 U.S. 51 (1988) . . . . . . . . . . . . . . . . . . . 94

Berger v. United States,

295 U.S. 78, 88 (1935) . . . . . . . . . . . . . . . . . 59

Boone v. Paderick,

541 F. 2d 447, 451 (4th Cir. 1976) . . . . . . . . . . . 56

Brady v. Maryland,

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

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . . . 98

Campbell v. Reed,

594 F. 2d 4 (4th Cir. 1979) . . . . . . . . . . . . . . 56

Card v. State,

652 So. 2d 344, 346 (Fla. 1995) . . . . . . . . . . 26, 57

Frye v. United States,

293 F. 1013 (D.C. Cir. 1923) . . . . . . . . . . . . . . 87

Gaskin v. State,

737 So. 2d 509, 516 (Fla. 1999) . . . . . . . . . . . . 25

Huff v. State,

622 So. 2d 982 (Fla. 1993) . . . . . . . . . . . . . . . . 2

Johnson v. Butterworth,

713 So. 2d 985, 986 (Fla. 1998) . . . . . . . . . . . . 57

Jones v. State,

709 So.2d 512 (Fla. 1998) . . . . . . . . . . . . . . . 61

Kelly v. State,

569 So. 2d 754 (Fla. 1990) . . . . . . . . . . . . . . . 95

4

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . *

Lightbourne v. Dugger,

549 So. 2d 1364, 1367 (Fla. 1989) . . . . . . . . . . . 60

Lightbourne v. Dugger,

549 So. 2d. 1364 (Fla. 1989) . . . . . . . . . . . . . . 57

Lightbourne v. State,

549 So. 2d 1364 (Fla. 1989) . . . . . . . . . . . . . . 99

Lightbourne v. State,

742 So. 2d 238, 247 (Fla. 1999) . . . . . . . . . . 60, 61

Maharaj v. State,

684 So. 2d 726, 728 (Fla. 1996) . . . . . . . . . . 26, 57

Mendyk v. State,

592 So. 2d 1076 (Fla. 1992) . . . . . . . . . . . . . . 97

Merck v. State,

664 So. 2d 939 (Fla. 1995) . . . . . . . . . . . . . . . 95

Muehleman v. Dugger,

634 So. 2d 480 (Fla. 1993) . . . . . . . . . . . . . . . 97

Patton v. State,

784 So. 2d 380, 386 (Fla. 2000) . . . . . . . . . . . . 25

Porter v. Singletary,

49 F. 3d 1483 (11th Cir. 1995) . . . . . . . . . . . . . 99

Provenzano v. Dugger,

561 So. 2d 541 (Fla. 1990) . . . . . . . . . . . . . . . 97

Provenzano v. State,

616 So.2d 428, 430 (Fla. 1993) . . . . . . . . . . . 43, 60

Roberts v. Butterworth,

668 So. 2d 580 (Fla. 1996) . . . . . . . . . . . . . . . 58

5

Roberts v. State,

678 So. 2d 1232 (Fla. 1996) . . . . . . . . . . . . . . 83

Rogers v. State,

782 So. 2d 373 (Fla. 2001) . . . . . . . . . . . . . . . 57

Rogers v. State,

782 So. 2d 373, 380 (Fla. 2001) . . . . . . . . . . . . 32

Rogers v. State,

782 So. 2d 373, 384-85 (Fla. 2001) . . . . . . . . . . . 51

Scott v. State,

657 So. 2d 1129 (Fla. 1995) . . . . . . . . . . . . . . 83

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . . . . 61, 78

State v. Kokal,

562 So. 2d 324 (Fla. 1990) . . . . . . . . . . . . . . . 97

State v. Krantz,

1998 WL 3621 at n.2 (Ct. Cr. App. Tenn. 1999) . . . . . 95

State v. Lewis,

656 So. 2d 1248 (Fla. 1994) . . . . . . . . . . . . . . 99

State v. Mills,

748 So. 2d 249 (Fla. 2001) . . . . . . . . . . . . . . . 53

Swafford v. State,

679 So.2d 736 (Fla. 1996) . . . . . . . . . . . . . . . 61

Tompkins v. Moore,

United States v. Bagley,

473 U.S. 667, 676 (1985) . . . . . . . . . . . . . . . . 58

Ventura v. State,

673 So. 2d 479 (Fla. 1996) . . . . . . . . . . . . . . . 97

6

Walton v. Dugger,

634 So. 2d 1059 (Fla. 1993) . . . . . . . . . . . . . . 97

Way v. State,

760 So.2d 903 (Fla. 2000) . . . . . . . . . . . . . . . 61

Williams v. Taylor,

529 U.S. 420, 435 (2000) . . . . . . . . . . . . . . . . 25

Wilson v. State,

363 Md. 333, 350 (Ct. App. Md. 2001) . . . . . . . . . . 56

Young v. State,

739 So. 2d 553 (Fla. 1999) . . . . . . . . . . . . . . . 57

Zeigler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . . 86

1

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

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

found him guilty (R. 401). Following a penalty phase, the jury

recommended the death penalty, and the judge immediately imposed

a sentence of death (R. 678-81). The conviction and sentence

were affirmed. Tompkins v. State, 502 So. 2d 415 (Fla.), cert.

denied, 483 U.S. 1033 (1987).

After a death warrant was signed, a post-conviction motion

was filed and an evidentiary hearing was conducted. Though the

circuit court found trial counsel’s performance was deficient,

relief was denied. This Court stayed the execution and later

affirmed the denial of relief. Tompkins v. Dugger, 549 So. 2d

1370 (Fla. 1989). After a second death warrant a federal

habeas petition was filed, and the federal district court stayed

the execution. An amended petition was subsequently filed, and

denied. On appeal, the Eleventh Circuit affirmed. Tompkins v.

149 (2000).

Pursuant to the signing of a third death warrant Mr.

Tompkins filed a number of motions, including a Motion for DNA

2

Testing (PCR2. 31-56), a Motion to Compel Production of Public

Records (T. 3-74), and a second Motion to Vacate Judgments of

Conviction and Sentence pursuant to Fla. R. Crim. P. 3.850

(PCR2. 182-307). The lower court took evidence on various of

had been alleged that the items sought to be tested had been

hearing and granted an evidentiary hearing on Claim V of Mr. Tompkins' Rule 3.850 motion pertaining to

the issue of the sentencing judge’s error in failing to independently weigh aggravating and mitigating

circumstances and in failing to disclose to Mr. Tompkins the fact that the State prepared the findings in

support of the death sentence. The evidentiary hearing occurred on April 18, 2001, after which the court

The circuit court denied all other claims without an evidentiary hearing (Id.). Mr. Tompkins filed a motion

for reconsideration (PCR2. 677-730), which was denied (PCR2. 755-96). A timely notice of appeal was

filed (PCR2 797). The State has also cross-appealed the lower court's grant of sentencing relief (PCR2.

813).

The core of the State’s case, as established by a Bill of Particulars, was that Mr. Tompkins killed

witnesses at trial, the State's position was that "the key testimony will come from three [] witnesses" --

3

Barbara DeCarr (the victim's mother), Kathy Stevens (the victim's best friend), and Kenneth Turco (the

jailhouse snitch), and that "[t]hose three will provide the overwhelming evidence" that Mr. Tompkins killed

Lisa DeCarr on the morning of March 24, 1983 (R. 108). The State acknowledged that its case was

entirely "circumstantial," save for alleged "direct evidence" of a statement of Mr. Tompkins elicited by

snitch Turco (R. 117).

Essentially, the State's theory, as outlined in its opening statement, was as follows: Wayne

Tompkins and Barbara DeCarr were boyfriend and girlfriend, Wayne having moved in with DeCarr, along

with her three children, including 15-year old Lisa (R. 107-08). On the morning of March 24, 1983,

Barbara went to Wayne's mother's house to help her move; before she left the house between 8:30 and

9:00 A.M., she checked in on Lisa, who was in bed and was wearing a pink bathrobe (R. 110). After

dropping Barbara's son Jamie off at school, Wayne came by his mother's house to assist, along with

Barbara, with the packing (R. 110-11). At some point, at Barbara's request, Wayne went back to his

house to get some newspapers to help with the packing (R. 111). After he came back to his mother's

house, Wayne told Barbara that Lisa was on the couch watching TV (Id.). However, at 3:00 p.m. that

day, Wayne told Barbara that Lisa had run away (Id.). Barbara went home, did not find Lisa, and

contacted the police; she questioned Wayne, who told her that the last time he saw Lisa was when she was

going out the back door to the store wearing a pair of blue jeans and a burgundy colored blouse (R. 111-

12). Barbara and her sons eventually moved out of the house a month later, and Lisa remained missing for

over one year (R. 112), until a body identified as Lisa's was found under the house in a shallow grave

wrapped

was fully wrapped and then this cloth was kind of underneath

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

color rather than pink (R. 153).

4

Donald Snell testified at trial that he met Barbara DeCarr in May, 1984 (R. 123-24). Snell

headed a volunteer group that located missing children, and employed the services of a psychic to do so

(R. 124). In June, 1984, Snell again met with Barbara, who assigned power of attorney to search for Lisa

(R. 129). Snell subsequently spoke with Wayne Tompkins, who told him that "if we found anything, to

contact him and not Barbara, due to her being in the hospital, and give him the information" (R. 130).

Barbara DeCarr had checked herself into the psychiatric ward of a hospital in Tampa. On or around June

6, 1984, Snell's organization conducted a search of Barbara's former house (another family had moved in

when Barbara left) (R. 130-31). Snell recounted that "the house was raised in the front part" and when

they looked under it, "we could see a depression which we were sure was a grave;" when someone

reached under the house, "the earth gave way" and "saw the bones" (R. 132). The depression was "on the

right hand side under the front part, the front section, what was the porch" and was about "two to three

feet under the house" (R. 133; 135). The police were then contacted (R. 135). On cross-examination,

Snell testified that it was not difficult to go under the house to see where the depression was located, and

that there were houses on both sides of the DeCarr house, and people from those houses could see what

they were doing (R. 138-39). Snell did not know if Barbara knew where the body was before he went

there, but "just didn't believe that she was telling me the whole truth" (R. 138; 40).

strange tooth in her daughter’s mouth" there was no basis for the dental identification (PCR. 233).

5

Tampa Police Department Sergeant Rademaker testified that the "most significant" discovery found

in the grave was "a finger bone with a ring around it" (R. 168). Rademaker testified that they were looking

for the ring because "[f]rom talking with Barbara DeCarr, we had learned that her daughter had actually

three pieces of jewelry: Two earrings and a ring" (R. 169-70). During a conversation with Barbara on

June 5, 1984, she told him that she believed the body "was someplace on the property and possibly under

the house" (R. 170); even though this interview was conducted after the discovery of the body, "we didn't

tell her during the interview. We didn't tell her until after we were sure what we had" (Id.).

The medical examiner later identified the body as being Lisa DeCarr based upon information

received from Barbara DeCarr.

the cause of death was asphyxiation (R. 184). There was no way to determine how long the body had

been in the grave, and that it is possible it could have been six or seven months prior to June, 1984 (R.

191). It was impossible to determine whether the ligature was placed on the body after it was in the grave

or after the person had died, and but for the ligature, it would have been impossible to determine the cause

of death (R. 192). Moreover, the ligature could have been used to drag the body to the gravesite (R. 193-

94). The hyoid bone, which is "one of the bones that you look for" to determine if strangulation occurred,

was "intact" (R. 193). Diggs also testified that he did not receive Lisa DeCarr’s dental records (R. 196).

However, dental x-rays which were taken from the corpse "were used in order to make an identification"

to look for the body. In fact, Kathy Stevens (if she can be believed) testified that when she saw Lisa on

6

and he displayed those x-rays (R. 195). Dr. Powell was the one who made the dental identification, but he

was not called as a witness and the basis for his opinion was never revealed (R. 195-96). However,

Barbara DeCarr had reported that Lisa had an occluded tooth.

Barbara DeCarr testified that she was separated from her husband Harold, and had been since

1980; Harold lived in New York (R. 199). She first met Wayne in May, 1981, when she was living with

her daughter, Susan LaBlanc, Susan's boyfriend Greg, and her other children Lisa, William, and Jamie

(Id.). Wayne moved in with the family in September, 1981, and they dated about 3 years (R. 200-01).

At one point, they lived in the Shady Lane Trailer Park, and would have been there during Halloween,

1982 (R. 201). By January, 1983, they had moved to the East Osborne house (R. 202).

On March 24, 1983, Barbara awoke at around 7 a.m. when

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

she'd like to stay home from school (R. 204). Barbara finally

got up around 8 a.m., by which time Wayne had left to take Jamie

to school (R. 205). Before she left to go to Wayne's mother's

house, Barbara looked in on Lisa, who was in bed in a pink

bathrobe, which had a sash; she couldn't tell if Lisa had

anything on under the robe (R. 206). Lisa also had jewelry:

cross-shaped pierced earrings and a little diamond ring that she

before Kathy Stevens provided her information about March 24th, Barbara had a clearer memory. She

stated: "Wayne had taken Jamie (my youngest son) to school just before 8:00 am. and then went to his

mother’s house for breakfast and coffee. He stayed at his mother’s house until approximately 10:00 am.

when he left to get some newspapers to pack dishes with."

4:30 pm. on June 1, 1984: "Barbara went on to state . . . that Det. Gullo had been in touch with her, and

she again told him, as she had when Lisa first disappeared, that Wayne had been the last person to see

Lisa alive!! Det. Gull insisted that she did not tell him this." (emphasis in original). Further, Mike Benito

stipulated to the accuracy of Det. Gullo’s representations (PCR. 301).

would have revealed that two pages should be read as one document), Barbara DeCarr, the

"Complainant" (according to page one) said "she last saw Lisa at the listed residence at the listed time.

Compl. Stated that everything was fine at home and has no trouble with Lisa running away or anything.

Compl. Stated Lisa was having some trouble in school but nothing to cause her to runaway" (according to

7

Barbara left the house at 9:00 a.m. with just Lisa at home (R. 208). When she got to Wayne's

mother's, Wayne was there with other people (Id.). Barbara stayed there until 3:00 that afternoon (R.

209). At some point she sent Wayne home to get newspapers to use as packing material; she did not

told her that Lisa was sitting on the couch watching TV (R. 210). At some point after returning with the

newspapers, Wayne left again with his stepfather (Id.). Barbara further testified that at 3:00 that afternoon

page two). The first page revealed the time the complainant last saw Lisa was "24 March 83 1330-

reveal that Barbara DeCarr’s testimony on this critical point was false.

ring, cross earrings." Implicit in the report is that this was the attire Lisa was wearing at the time she was

last seen by the complainant, Barbara DeCarr. Kathy Stevens testified that Lisa was not wearing earrings

When the prosecutor, Mike Benito, objected, the court required the parties to confer with Ms. Stevens

and report to the court what she indicated. At that time, it was placed in the record that Kathy Stevens

said that Lisa "always wore the rings all the time, and particularly there was a ring she remembered on the

index finger that was flat like an initial ring, is the way, I believe, the word she used." (PCR. 22).

per month (DeCarr depo. at 11). Barbara was receiving AFDC at the time (Id.).

15). She had one discussion with Barbara DeCarr after Lisa disappeared at which Barbara came to Ms.

Stevens’ house (R. 257, Depo. 20). Police records show that Detective Gullo made a notation dated

April 26, 1983, indicating that he "received a telephone call from Mrs. DeCarr who advised that her son

told her that Kathy Sample told him that Lisa called her. Mrs. DeCarr then contacted Kathy who told

Mrs. DeCarr that Lisa called her yesterday (25 Apr.) from N.Y. and told her she was O.K. and that she

was pregnant. Kathy could not supply any further information." Ms. Stevens acknowledged in her

testimony that this was a lie she told Barbara because Lisa had been planning to run away and had told

Ms. Stevens, "if anything happens, I want you to tell my mom that I’m going to be all right." (Stevens

8

testified that prior to calling the police, however, Barbara

went back home, but did not see Lisa; she discovered Lisa's

pocketbook and robe missing, but her wallet was there as was a

On cross-examination, Barbara testified that shortly after March 23, 1984, she had a discussion

with Kathy Stevens, who was known to her as Kathy Sample (R. 217).

depo. at 20). When Lisa disappeared, Ms. Stevens assumed that she had run away as she had been

planning and so she told the lie that she had promised to tell (R. 257-58).

that Barbara was never able to provide a name for any of the numerous individuals she claimed had told

her they had seen Lisa after her disappearance. For example, the September 2, 1983 entry stated, "I

received a phone call from Mrs. DeCarr who stated that she was told by friends of Lisa that they had seen

Lisa on East 7th Ave. at about 46th St. Lisa was standing in the Jewel "T" parking lot speaking with two

or three other w/f’s. The informants told Mrs. DeCarr that Lisa might be living in a trailer park which is

across the street. Mrs. DeCarr told the informants that they should call the police the next time they see

her. Mrs. DeCarr was advised that they didn’t want to get involved with the police." The only time Mrs.

DeCarr supplied a name according to Det. Gullo’s log was when she reported Kathy Stevens’ lie that Lisa

had called from New York. And when making that report, she gave Det. Gullo the wrong last name. Det.

Gullo, according to his logs, was never able to speak with Kathy.

know she was suspended, Judge, and that is one of the reasons Kathy thought she ran away, because she

didn’t want the mother to find out she was suspended" (PCR. 52). However, the school records reveal

that there was a March 24th phone conference with Barbara DeCarr "who called to inform that Lisa had

left." The records also show that on March 25th, "mom says child ran away yesterday (24th). Thinks

child may be pregnant." Similarly, records from the Missing Child organization indicated that Barbara

contacted the organization on March 29, 1983, and reported Lisa as missing saying, "She may be on drugs

and she may be pregnant." Barbara DeCarr did not mention to Detective Gullo, the police officer who

was looking for Lisa, Lisa’s possible pregnancy until April 26th. And in Barbara DeCarr’s deposition she

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

(DeCarr depo. at 33). But since according to Kathy and according to the police records that conversation

did not happen until April 25th, it is unclear how Barbara knew on March 25th that Lisa "may be

pregnant" unless Lisa told her on the day she disappeared.

9

had been seen elsewhere in the community (R. 219).

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

her suspicions that Wayne killed Lisa (R. 226, 237).

after she committed herself to a psychiatric ward. According to Detective Rademaker, Barbara DeCarr

told him, "she couldn’t give any reason as to why she thought the body was under there, but she thought

she thought [sic] the body was under there, but she thought that it was someplace on the property and

possibly under the under the house." (R. 170). This statement was made after Barbara had told both the

police and the Missing Children organization that she had contacted to search the yard at the Osborne St.

residence and she had been informed that the body had not been found. In fact, Detective Burke reported

that on June 4, 1984 at 2:30 pm. he had "checked the yards located at the address and found no areas

that looked suspicious as to a grave." This was pursuant to Barbara’s suggestion on June 1st: "She stated

that she talked to Det. Gullo via phone and had asked him to go check the back yard of the residence of

1225 E. Osborne because she now suspects that her daughter may be buried in the back yard."

"compl." who was Barbara was the last person to see Lisa "at the listed residence at the listed time."

10

description of Lisa's clothes in March, 1983 (Id.).

13

In the period between March, 1982, to June, 1984, Barbara had three other boyfriends in addition

to Wayne Tompkins (R. 227), including Gary Francis; she denied that she moved out of the trailer park

because Gary had harmed Lisa (Id.). It was also true that a man named Bob McElvin had propositioned

Lisa, that he would do "certain things for her for sexual favors" (Id.).

Barbara acknowledged calling Wayne on the phone while he was incarcerated pending trial in

order to solicit a confession from him, but Wayne never admitted any involvement (R. 229). She also

testified that on March 24, 1983, Wayne left his mother's house "[t]wice that I know of," but did not

remember if he appeared to be mussed up or dirty when he returned (R. 230).

Barbara denied that he ex-husband sexually abused Lisa (Id.).

statement, "1st [husband] used to beat her. he had m.s. 2nd – got along good. He ran around on her. He

had sexual relation with daughter that split them up." The Missing Child records contain the notation that

on 4/12/84 "Mrs. DeCarr called." During the conversation, she indicated "that Lisa’s father had sexually

abused his daughter by a previous marriage and one or two of their daughters."

disciplining her children. She related that she would threaten "to send them to their father, from whom she

is separated. Mrs. DeCarr related that her husband had sexually abused her daughter."

bridge contusion – laceration below orbital rim" indicated that "pt became involved in fight with another

victim’s mother in a bar\because pt. was said to have some of the responsibility of both deaths."

11

231).

"argument" than a fight (R. 231-32).

Following Wayne's arrest for murdering Lisa, Barbara sent Wayne letters with copies of

photographs of skeletal remains, as well as detailing how nice Lisa's funeral was, although she initially

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

Barbara also testified that she did not practiced

witchcraft, "I am a Catholic." (Id.) In her deposition, Barbara

said her daughter would be lying if she had said that Barbara

had engaged in sex acts with "little boys" (DeCarr depo. at 65).

At trial, Judge Coe refused to allow any questioning of Barbara

Barbara DeCarr" stated, "that Barbara DeCarr was heavily into Witchcraft and while living in New York,

Barbara participated in witchcraft to a great extent." Jenice also reported "that her brother Harold

DeCarr, Jr. was seduced by Barbara when he was 12 yrs. old." Det. Burke noted that "this was

confirmed by Harold as we were on a three party telephone conversation at the time. He stated that he

was in fact, 12 yrs old when this took place." Det. Burke reported that Michelle Hayes, "the sister to Lisa

DeCarr and the daughter of Barbara DeCarr," made similar statements. Michelle "stated she knew of one

time that her mother had at least three or four young boys in her bedroom locked up with her ranging from

ages 12 to 14 yrs and that she knew that there was sex acts going on and that one of the subjs that was in

the bedroom with her mother was Harold, Jr., her stepbrother. She stated that she is certain that they

were involved in some type of sex act with their mother. She said it got so bad, that the 12 and 14 yrs old

boys would get in a fight over who was to have her mother’s affections."

12

regarding her sexual relationships with 12 and 13 year old boys

In her deposition, Barbara indicated Jenice DeCarr, Harold DeCarr, and Michelle Hays had all lied about

her (DeCarr depo. at 65-66). She also indicated in her deposition that as for her daughter Susan LaBlanc,

"We do not have a relationship." (DeCarr depo. at 36). Barbara also denied telling the police in

June, 1984, to specifically check the yard and under the house, but then stated that "I don't remember

saying it" (R. 235-36).

According to Barbara, Lisa never complained that Wayne had made any sexual advances, but did

complain about other people like Bob McKelvin (R. 236-37). Barbara also found out that after 1983,

Wayne had gone to bed with another woman but denied that she was angry that her boyfriend was having

an affair (R. 237). Finally, Barbara denied that Lisa's boyfriend harmed Lisa, and that the ring he gave Lisa

was a "pre-engagement" ring (R. 237-38).

The next "key witness" was Kathy Stevens, who testified that she was never known as Kathy

tree off campus. However, the school records also show that marijuana was found in Kathy’s purse.

want you to tell my mom that I’m going to be all right" (Stevens depo. at 20).

o’clock. And we went. And she was standing by the garage where the alley is by her house. And Kim

told me, ‘Don’t call the police. Don’t get involved’" (Stevens depo. at 11). When she first told Mike

Benito on March 12, 1985, of this March 24, 1983, incident, she indicated that "[a]t 8:00 a.m. [she]

returned because she had left her purse in Lisa’s bedroom."

forth." (Stevens depo. at 13). This man was not mentioned to Mike Benito on March 13, 1985, when

13

Sample (R. 242). On March 24, 1983, Stevens went to Lisa's house; on the previous day, both girls had

After receiving no response to her knocking at the front door, Stevens went to Lisa's window and "she

dragged me through the window and she said, ‘Kathy, I'm not going to run away. I talked about

everything with my mother and we are going to deal with it’" (R. 250). After talking for a few more

minutes, Stevens left (Id.). She forgot her purse and went back between 8 and 9:00 a.m; it could have

been after 9:00 a.m. (R. 251). No one went with her when she went back to the house; someone named

when Stevens opened the front door, she saw Lisa and Wayne "struggling on the couch" (R. 252). Wayne

was on top of Lisa "trying to take her clothes off and that's about it" (R. 252). Lisa "asked me to call the

police" and she believed that Wayne yelled "get out" (R. 252-53). She also saw "a man sitting in the

she first informed him that she had seen Lisa on March 24, 1983.

shut the door. And I told Kim, I said, ‘Come on, Kim we got to call the police.’ She said, ‘Don’t get

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

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

when Wayne came in, dropped his towel, and "attempted to crawl into bed with us" (R. 246). He was

trying to fondle Lisa, and Lisa "dug her nails into him and I believe she did hit him, but I'm not sure" (R.

246-47). Wayne was "telling her to stop and calling her a bitch and vulgar names" and then he said "I'm

going to kill you" and "then he looked at Lisa and then he got up, and he looked disgusted and he left the

room" (R. 247). Wayne was in the room fifteen or twenty minutes (Id.). The first time Stevens told

anyone of this incident was when she received a phone call from the prosecutor (R. 247). She did not say

anything before because Lisa had asked her not to (R. 248). According to Mike Benito’s file

memorandum, Wayne said, "if you ever hit me again, I will kill you." Stevens also testified that one day,

she and Lisa were walking to the store, and Wayne made the remark "I want to eat you out"; Lisa "turned

around, looked at him, and we walked away" (R. 248).

14

Stevens had never seen the man before (Id.). Lisa was wearing a pink robe and "I believe she still had her

rings on that morning" but no earrings (R. 253-54). Stevens left, did not call the police, and instead "went

up to the store" and ran into Lisa's boyfriend (R. 254). She advised the boyfriend that she wanted to call

the police, but she did not because "it was a little bit of being scared and not knowing what to expect" and

Stevens and another girlfriend, Kim, went back to Lisa's house at some point later, but it was the

friend who knocked at the door, not Stevens, and her friend may have spoken with Wayne Tompkins (R.

255). However, she went alone "[a]round lunchtime to one o’clock, I had been back because I still had

not gotten my purse because of the second time I went back." (R. 256).

at 10). She also indicated that after she talked to Junior, "me and her [Kim] went back to the school. I

cleaned out my locker, and I went to my stepmother’s and sat on her porch until she got back. And then I

met Kim at school at 2:00 o’clock. And she cut class. And we went to go check on Lisa." (Stevens

depo. at 14). "It takes about twenty minutes to get from the school to her house. It was about 2:20, 2:30,

something like that." (Id.).

that she returned later around 11:00 or 12:00 and knocked on the door and Wayne answered and said

that Lisa had left with her mother. Kathy then sent a friend of her’s named Kim Lisenbee over to Lisa’s

house to check on Lisa and Kim reported back that Lisa had apparently disappeared."

the corner waiting." She indicated as to the conversation, "I did not hear it." (Stevens depo. at 14).

Obviously, this testimony rendered the statements inadmissible hearsay, so by the time of trial the story had

changed.

15

24

At trial, her testimony was around lunchtime to 1:00

Stevens went back to the house because she still had not gotten

Subsequently, Stevens had a discussion with Barbara DeCarr, who had come to Stevens' house to

ask her if she had seen Lisa (R. 257). Stevens told her that Lisa "had left for New York" (Id.). Barbara

asked if Stevens expected to hear from her, and Stevens replied "Yes, she will call me when she gets

there" (Id.). Stevens said this was a lie but that she believed at the time that Lisa had run away (R. 258).

Until the body was discovered the following year, Stevens thought Lisa had run away. She testified before

the jury "it was after the body was discovered [that she] came forward with the information that [she told

the] jury" (Id.).

Judge Coe sustained Benito’s objection, but ordered the parties to speak to Kathy Stevens in the hallway

and place on the record what she said. The parties then represented that Kathy Stevens "state[d] after she

talked with [Benito, he] arranged a visit with her and her boyfriend in the jail because she didn’t have

proper ID, and [Benito] did make it easy for her to get in there. [Benito] brought her over to visit the

boyfriend" (PCR. 20-21).

am." (DeCarr depo. at 16). In Barbara’s undated statement, she further indicated that Wayne had

already arrived at his mother’s house and "stayed at his mother’s house until approximately 10:00 am

when he left to get some newspapers to pack dishes with." In her deposition, she indicated Wayne "could

have been" gone "[t]wenty minutes, half an hour." (DeCarr depo. at 20). He subsequently left again with

his stepfather (DeCarr depo. at 21). At the time of Barbara’s deposition, the previous jailhouse informant

had committed suicide when police showed up to arrest him on new burglary charges; he chose to die

rather than go back to jail. After Barbara’s deposition, Mr. Benito clearly decided he needed to find some

additional evidence. By the time of trial, Barbara’s account of time shifted (as did Kathy’s) since their

initial statements could not both be true (between 8:00 am and 9:00 am, Barbara said she was home and

Wayne wasn’t, while Kathy said during that time period Wayne was assaulting Lisa on the couch).

16

On cross-examination, Stevens said that each time she went to Lisa's house that day, Wayne was

there, and confirmed that the first time was between 6 and 6:30, and she did not know if Barbara was

home at the time (R. 259). She reaffirmed that Lisa did not have her earrings on that day (R. 260). She

saw Lisa's boyfriend at the corner store after she left Lisa's house at 6 or 6:30, and he was drunk (R. 260).

She denied that Barbara had other boyfriends besides Wayne, but acknowledged that in her deposition

she said otherwise (R. 261-62). Stevens did not come forward until after the body was found because she

"realized that something more was involved than just her disappearing" and told prosecutor Benito her

from the psychiatric ward. "She stated at that time, she also had a boyfriend that was living with her at the

time her daughter disappeared by the name of Wayne Thompkins [sic] who had been arrested in Pasco

County for some rapes that he had committed in that county." However, the records from Pasco County

clearly establish that the second rape did not occur until May 30, 1984, and Wayne was not arrested until

later that day.

that afternoon getting into a brown Pinto at 12th and Osborne.

17

to her pillow" one night, she decided to call Benito again and tell him her story (R. 264). Stevens denied

telling different versions of the events to different people, but acknowledged lying to Barbara DeCarr and

initially to Benito (R. 265). She reaffirmed that she did not call the police after seeing the struggle between

Lisa and Wayne, and it did not make her suspicious "because I figured, you know, she would eventually

get it under control, and it just didn't dawn on me" (R. 266).

Detective K.E. Burke testified that among his duties in the case was to interview Barbara DeCarr,

who he interviewed 3 times (May 28th, June 1st, and June 6th) while DeCarr was in the hospital (R. 277-

saw Lisa was in the afternoon of March 24, 1983, wearing a maroon blouse and blue jeans and going out

the back door and said she was going to the store (R. 284). Wayne denied ever saying that Lisa ran away

the day she disappeared (Id.).

On cross-examination, Burke acknowledged speaking to numerous witnesses in addition to

unsure if he spoke with a Bob McKelvin; he claimed that he did not recall the name of a black man who

15, 1985. At that time, he said that in late June, 1985, he first talked to Wayne Tompkins about his case,

18

was a neighbor of the DeCarrs and whether he spoke with him (R. 287). Burke was aware of someone

having made sexual advances toward Lisa DeCarr, and "[i]f it was Bob McKelvin who lived next door,

yes, I was aware of some information regarding that" (Id.). Burke never followed up on that investigation

(Id.), and McKelvin was never interviewed by the police (R. 288).

Burke testified that the height from the floor of the DeCarr house to the ground was about 36

inches, but acknowledged that during his deposition he said it was 16 inches at the greatest point between

the floor and the ground, and that his deposition testimony "was correct" (R. 288). Someone looking from

neighboring houses could see the yard area of the DeCarr house (R. 289). The investigation revealed that

Barbara had been arguing with Wayne in 1983 and 1984 about his having other girlfriends or affairs (Id.),

and that Lisa had a record as a run-away (R. 293). He denied that Barbara told the police to specifically

look under the house, but she did say to check the yard (R. 297). Furthermore, Burke acknowledged

setting up a tape recorded phone call between Barbara and Wayne, in which Wayne made no admissions

(R. 298).

The final "key witness" for the State was Kenneth Turco, who was serving a 30 year prison

sentence for burglary and grand theft (R. 301-02). Turco also had been previously convicted of grand

theft, forgery, and burglary (R. 302). He was presently charged with an escape, to which he pled guilty

(R. 303), and was awaiting sentencing (R. 304). While in the jail, he made contact with Wayne Tompkins

and that about a week and a half before the deposition, Wayne confessed to him (Turco depo. at 8).

This was clearly in response to defense counsel’s questions regarding Turco’s access to depositions in Mr.

Tompkins’ possession.

sentence of death. He explained, "I walked down to court. I was about to offer Mr. Turco a negotiation.

19

specifics of the case at that time, "but he talked a lot about his case" (R. 305).

Turco and Wayne were eventually put in another cell together and they continued talking about the

case (R. 306-07). In early to mid-June, Turco was talking to Wayne about his own case and then asked

the information, you know" (Id.). Wayne told him that after Barbara had sent him home to get

newspapers, he went home, saw Lisa on the couch and "asked her for a shot of pussy" and she said no (R.

309). Then, Wayne told Turco, Lisa said "I stayed home from school. I don't feel good" and then Wayne

tried to force himself on Lisa and she kicked him and he strangled her (Id.). Wayne did not tell Turco

what he strangled Lisa with (Id.). Then, Wayne said that he panicked because "he didn't know what to do

with the body because Barbara would be coming back to the house, so he buried the body under the

house" (R. 310). He also said he buried some clothing "to make it look like she ran away," specifically it

was a pair of jeans, a sweatshirt or blouse, "and he did say a pocketbook for sure" (R. 310). Wayne also

said that he had had sex with Lisa in the past and that "sometimes she would and sometimes she wouldn't"

(R. 311). After receiving this information, Turco contacted prosecutor Benito, who visited him personally,

and promised only "my safety in the jail and that you would tell the judge at my sentencing hearing that I

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.’" (PCR. 235). So, Benito "got up and

walked down here and announced the case, and said, ‘I nol-pros it.’" A grateful Turco "looked at

[Benito] like he had just been handed his first bicycle at Christmas." (PCR. 236).

20

On cross-examination, Turco did not know whether Wayne had copies of his depositions and

police reports in the cell they shared together, that "I never messed with his papers" and only saw a

coroner's report "after I had talked to Mr. Benito on a Saturday evening" (R. 312). Turco had pled guilty

to the escape charge, but did not know if his sentencing had been postponed until after his testimony in the

Tompkins trial (R. 314). Turco said that he was not hopeful that his testimony would help him on the

escape sentence because he would still be doing time anyway (R. 315). However, it had crossed his mind

that his testimony would help him (Id.).

Turco acknowledged that there was a confidential informant system in prison and he had been part

of that for the last 4 or 5 years, and that he was "trustworthy" (R. 317). Even though he was an informant,

going through another prisoner's papers "is something you don't do, not in the prison system or in society

or any place else" (Id.).

Turco was the State's final witness, and the defense presented no testimony.

21

1. The lower court erred in summarily denying Mr. Tompkins' allegations that documents

disclosed for the first time in April, 2001, warranted an evidentiary hearing and Brady relief. Despite

requests for all public records in 1989 during Mr. Tompkins' initial postconviction proceedings, the State,

for the first time in 2001, disclosed numerous exculpatory police reports establishing Mr. Tompkins' factual

innocence and undermining confidence in the outcome of the guilt-innocence phase of his capital trial. Mr.

Tompkins also alleged his diligence, a fact which the State disputed. Given the existence of disputed issues

of fact, the lower court erred in failing to grant an evidentiary hearing. The lower court also failed to

conduct a proper cumulative analysis of the previous claims raised by Mr. Tompkins. Reversal for an

evidentiary hearing is warranted.

2. The lower court erred in denying Mr. Tompkins' request for DNA testing. No procedural

bar forecloses such testing at this time. There is available biological evidence which can be DNA tested.

3. The lower court erred in denying Mr. Tompkins' claim that due process was violated by

the State's destruction of evidence. Mr. Tompkins also submits that this Court should recede from the

Arizona v. Youngblood analysis for establishing the entitlement to relief when there is destruction of

evidence.

4. The lower court erred in denying Mr. Tompkins' request to compel state agencies to

disclose public records pursuant to Fla. R. Crim. P. 3.852.

22

23

The law attendant to the granting of an evidentiary hearing in a postconviction proceeding is oftstated

and well settled: "[u]nder rule 3.850, a postconviction defendant is entitled to an evidentiary

hearing unless the motion and record conclusively show that the defendant is entitled to no relief."

Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). Accord Patton v. State, 784 So. 2d 380, 386 (Fla.

2000); Arbelaez v. State, 775 So. 2d 909, 914-15 (Fla. 2000). The rule is the same for a second

postconviction motion, where allegations of previous unavailability of new facts, as well as diligence of

the face of the pleadings." Card v. State, 652 So. 2d 344, 346 (Fla. 1995). Factual allegations as to

the merits of a constitutional claim as well as to issues of diligence must be accepted as true, and an

evidentiary hearing is warranted if the claims involve "disputed issues of fact." Maharaj v. State, 684

So. 2d 726, 728 (Fla. 1996). In Mr. Tompkins' case, the lower court erroneously failed to grant an

evidentiary hearing despite extensive allegations as to the nature and content of the withheld documents

24

and that the documents had not been previously disclosed to Mr. Tompkins or his trial or collateral

counsel.

were disclosed to him by the State in the discovery process pursuant to Fla. R. Crim. P. 3.852, and

that the documents had not been previously disclosed either at trial or in the prior postconviction

proceedings in the face of due diligence and public records requests during the first postconviction

proceedings in 1989. The trial court categorized the undisclosed information as follows:

1. A June 8, 1984 police report;

2. A legible copy of the of the March 24, 1983 police report;

3. A July 28, 1983 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 regarding an establishment

known as "Naked City";

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

10. A police report of a June 14, 1983 phone interview with

Lori Lite;

a result of those requests. This is obviously a disputed issue of fact warranting an evidentiary hearing.

25

11. A report that reveals that on June 9, 1984 W.H. Graham found additional bones in the area where

the body believed to be Jessie Albach was found;

12. A May 9, 1984 report revealing that there were two W.H. Grahams;

13. A list of questions to be asked Detective Burke;

14. The fact Kathy Stevens served time in jail for committing perjury in 1986.

(PCR2. 435-36).

As to the issue of diligence, Mr. Tompkins' motion specifically alleged that all of this information

had not been disclosed either prior to trial or during his first Rule 3.850 proceedings, despite public

records requests made in 1989 (2PCR. 214; 216; 217; 220-27). At the Huff hearing, Mr. Tompkins'

counsel repeated that "there is a wealth of favorable evidence that was just disclosed this past week"

(T. 135-36). Counsel also argued that the newly provided documents were not listed either in pretrial

In response, the State directly challenged the factual allegations made by Mr. Tompkins as to the issue

of diligence, arguing that Mr. Tompkins received an evidentiary hearing in 1989 on Brady and Giglio

issues, and thus "[a]ll these claims have previously been raised" and that Mr. Tompkins "could have

In the order summarily denying relief as to this issue, the lower court concluded that, with regard

to the June 8, 1984, police report, the July 28, 1983, police report, and the handwritten lead sheets of

26

Detective Burke, Mr. Tompkins was entitled to no relief because he had already raised and litigated a

Brady claim in 1989 (PCR2. 436). As to the legible copy of the March 24, 1983, report, the court

concluded that Mr. Tompkins' counsel could have obtained a legible copy by the use of due diligence

(Id.). As to the documents pertaining to the Albach case, the court concluded that they were "not

relevant to the DeCarr case" and counsel could have obtained them by due diligence (PCR2. 437). As

to the script of questions provided to Detective Burke, the court concluded that the "answers to the

questions pertain to issues that are irrelevant to the substantive testimony of the detective" and thus Mr.

Tompkins was not entitled to relief (Id.). As to the disclosure of Kathy Stevens' perjury conviction, the

court concluded that the allegation "is conclusory, which is insufficient for relief" because Mr. Tompkins

did not allege that Stevens committed perjury at trial (PCR2. 438).

Brady claim was different from the claim previously presented because "[h]e has now been provided

documents not turned over to him at trial or in 1989" (PCR2. 679). Mr. Tompkins also re-emphasized

that "the State, despite a public records request in 1989 for all files and records regarding Wayne

Tompkins, did not reveal the documents turned over in 2001. This factual allegation must be accepted

as true for purposes of Rule 3.850" (Id.). He also argued once again that "[i]n 1001, Mr. Tompkins

was provided documents from the State never previously disclosed; these documents contain favorable

or exculpatory information" (PCR2. 680). In denying the rehearing, the lower court concluded that the

original order adequately addressed Mr. Tompkins' arguments (PCR2. 756).

Mr. Tompkins will address each of these categories of documents below, and submits that the

27

lower court erred as a matter of law in failing to accept Mr. Tompkins' allegations as true with respect

to diligence, as well in determining the legal question of the materiality of the suppressed documents.

In response to requests made by Mr. Tompkins in 2001 pursuant to Fla. R. Crim. P. 3.852, the

Tampa Police Department for the first time disclosed a June 8, 1984, police report which contains the

following discussion regarding an interview of an individual named Maureen Sweeney taken on June 8,

1984, at 2130 hrs:

SWEENEY advised that it was very strange the explanation given

surrounding LISA'S disappearance. She advised that she was told that

LISA had come home, found Wayne sitting at the kitchen table with her

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

BARBARA, explained that he had no place to go and that she was

going to let him move in with them, until he could get on his feet. At

that point LISA ran out the back door. According to MAUREEN it

was very unusual for LISA to be outside without her makeup and

supposedly she had been outside then come back inside and then gone

out again without her makeup. Lisa's brother BILLY left the house to

go find her and came back to take care of JAMIE.

SWEENEY advised that she had been told that WAYNE had gotten

up to chase after LISA to try and catch her but she was gone, by the

time he got outside. SWEENEY advised that LISA had left her purse

containing her makeup, etc. on the table.

The report further stated, "Sweeney advised that she was still in Tampa at the time that Lisa

disappeared. She advised approx [sic] a week later she left for Michigan. They advised that Ida

Haywood called Mike at his place of employment in June to ask if Lisa had gone with Maureen and she

advised that she had not. Later, Junior, (Lisa’s steady boyfriend) came to their house on Rio Vista and

28

asked if they had seen her. Mike saw him much later at Church’s Chicken and asked if he had heard

anything from Lisa at which time he advised that she had hurt him really bad and that she had never

called him, never tried to get in touch with him and therefore he was finished with the family." Maureen

provided Det. Milana with a photograph of Lisa in which she was wearing a ring that was supposed to

be the ring she was wearing when she disappeared.

The report also included a discussion of an interview with Mike Glen Willis. Mr. Willis was also

interviewed on June 8, 1984, at 1500 hrs:

It was sometime in Jun 83, that Mike Willis met both Barbara

and Wayne in McDonald’s. They advised that they were living

together but not as lovers, just as friends and that Barbara was

going to move in with a man named Ray (Retired Army Officer)

who had a lot of money. She told Mike that she was actively

seeking and looking for Lisa and she was calling people and

places trying to locate her. Barbara also said that she has had

an affair with Ida Haywood’s son. She had kicked Wayne out

temporarily and moved in with Dale in a small house. That is

when Wayne and Barbara told Mike the story about the last

time they saw Lisa. The day they last saw Lisa was the day

Wayne moved back into the house on Osborne. She became

upset because of the fact that she [sic] was moving back and

stormed out of the house.

Neither Maureen Sweeney nor Mike Willis were listed on the State’s October 23, 1984, Notice

of Discovery as "persons known to the State of Florida to have information which may be relevant to

the offense charged" (R. 594). Neither was Detective Milana. Further, the State did not list the June

The significance of these reports is that they lend support to the statement provided by Wendy

29

Chancey to the police on the date of Lisa’s disappearance. A report filed at the time of Lisa's

disappearance stated that Wendy Chancey saw Lisa at approximately 3:00 p.m. on March 24, 1983:

Interview: Witness [Wendy Chancey] stated she observed Lisa get

into the suspect vehicle at 12th St and Osbourne and was last scene

heading North on 12th St. Witness could give no more information, but

can identify the suspect vehicle.

It was not until April 2001 that the State disclosed a legible enough copy of this March 24, 1983,

report to discern significant information which is corroborated by the Maureen Sweeney statement.

The initial police report, dated March 24, 1983 at 5:30 p.m. is a two-page report. The first page lists

the complainant, the date and the time of the incident being reported. The Date Time Occurred is listed

as "24 Mar 23 1330-1400". It is now clear from the first page of the report disclosed in April, 2001,

that Barbara DeCarr is the complainant. In the code box next to her name appears "C/P". Above her

name the codes are explained, "V=Victim C=Complainant J=Juvenile O=Owner A=Defendant

P=Parent I=Firm Name M=Missing D=Deceased OT=Other". Thus, Barbara was identified as both

the Complainant and the Parent. On this page of the report in the reconstruction section it is

handwritten, "Mrs. Decarr stated her daughter ran away from home for no apparent reason." The

second page of the report next to the phrase "Restricted Persons" has more codes, SP=Suspect

W=Witness JA=Juvenile Arrest JR=Juvenile Runaway". Lisa DeCarr is listed as "JR". Wendy

Chancey is listed as "W". The report then contains the following in the Narrative section with the

instruction "Do Not Repeat in Narrative Any Information Already Contained in Report. The following

is then handwritten by Officer Griffin:

30

Compl. stated she last saw Lisa at the listed residence at the

listed time. Compl. stated that everything was fine at home and

has had no trouble with Lisa running away or anything. Cmpl.

stated that Lisa was having some trouble in school but nothing

to cause her to runaway. Cmpl. checked with Lisa's friends

and school for information as to where she might be with

negative results. Cmpl. stated that one of Lisa's friends told her

that Lisa asked about Beach Place, but Cmpl. checked with

Beach Place with negative results. Cmpl. stated Lisa did not

take any of her belongings and gave no indication of wanting to

leave.

Determining the listed time and residence requires referring back to page one of the report. Page one

shows the listed time as 1:30-2:00 on March 24, 1983 and the listed residence as 1225 E. Osborne

St., Lisa's residence.

were stipulated into evidence in 1989 and which contained the following notation at 4:30 pm. on June

1, 1984: "Barbara went on to state . . . that Det. Gullo had been in touch with her, and she again told

him, as she had when Lisa first disappeared, that Wayne had been the last person to see Lisa alive!!

Det. Gullo insisted that she did not tell him this" (emphasis in original). As Detective Gullo maintained

throughout his investigation, Barbara DeCarr was the last person to see Lisa alive, not Mr. Tompkins.

Furthermore, the legible March 24, 1883 report contradicts Barbara’s deposition testimony that

"I didn’t tell the police anything. Wayne did all the talking." (DeCarr depo. at 41). If Mr. Tompkins

"did all the talking," his name would either be listed as the complainant or as a witness. The report

further indicates that Wendy Chancey stated "she observed Lisa get into the suspect vehicle at 12th St.

31

and Osborne and was last seen heading north on 12th St." Barbara in fact testified that Wendy

Chancey said that she had seen Lisa getting into a brown Pinto the afternoon she disappeared, "she

said she seen it from her bus." (DeCarr depo. at 40). During Mr. Tompkins’ 1989 evidentiary

hearing, the prosecutor acknowledged there was evidence that Chancey saw Lisa after she was

allegedly murdered and that this was inconsistent with the State's theory (PCR. 232). Yet Chancey

was never called to testify at trial. The jury never heard this evidence and never got to evaluate the

reliability of Chancey's statement to law enforcement officers made the same day she saw Lisa alive and

well. The affect this information would have on the jury is strengthened by the corroboration provided

by Maureen Sweeney’s statements in the June 8, 1984 report.

The newly disclosed June 8, 1984 police report also corroborates the theory that Lisa ran away

and is significant evidence of Mr. Tompkins' innocence. Barbara DeCarr stated in her deposition that

she believed that Lisa had run away to New York (Deposition of Barbara DeCarr, pp. 41-43), and

School records further verified that Lisa had run away:

arrives

pregnant.

32

Thus, "students" heard from Lisa "from N.Y" and she was pregnant. Her mother suspected she

was pregnant. Additionally, a police report dated September 2, 1983, stated that Lisa had been

sighted 6 months after her alleged disappearance (R. 553). Another police report dated April 26,

1983, stated that Lisa had run away to New York because she was pregnant (R. 551). The theory that

Lisa had run away was further supported by a police report by Detective Burke dated June 22, 1983

(R. 517).

The Tampa Police Department has also disclosed in April of 2001 for the first time a July 28,

1983 report which included Det. Gullo’s account of his June 13, 1983, interview of Barbara DeCarr.

Det. Gullo reported:

14 Jun 83, 1430 hrs.

The u/signed received a phone call from BARBARA DeCARR. MRS.

DeCARR who also reported her daughter, LISA DeCARR,

RUNAWAY, on 24 Mar 83, OFF. #83-15919. MRS. DeCARR

stated that she had received information from MARY ALBACH that

JESSIE had run away. MRS. DeCARR stated that JESSIE and LISA

were very close friends and that she thinks that perhaps they are

together. Also MRS. DeCARR stated that she received some

information that possibly LISA DeCARR and JESSIE are in the Hyde

Park area, but she does not know at what location. MRS. DeCARR

stated that LISA and JESSIE had many friends which were common to

both of them and that is the reason she thinks they are together. MRS.

DeCARR stated that she will call me if she learns any new information

on either of the girls.

This statement was not disclosed in the October 23, 1984, Notice of Discovery (R. 595). Nor

33

was it disclosed in 1989 pursuant to Mr. Tompkins public records request. However, Barbara

DeCarr’s name was disclosed and she was called by the State to testify. Rule 3.220(1)(B),

Fla.R.Cr.Pro., was clearly violated. This report supports the statements of Chancey and Maureen

Sweeney.

It is important to note that Barbara DeCarr did not tell the police of her suspicions

that Wayne killed Lisa until June 1984 (R. 226). She did not become suspicious or tell the

police anything when Wayne gave her what she thought was an incorrect description of

Lisa's clothes in March, 1983 (Id.). Barbara DeCarr testified that she awoke around 7

a.m., on March 24, 1984, when Wayne told her that Lisa had a headache and wanted to

stay home from school (R. 204). Barbara got up around 8 a.m., by which time Wayne

had left to take her son to school (R. 205). Before she left to go to Wayne's mother's

house, Barbara looked in on Lisa, who was in bed in a pink bathrobe, which had a sash;

she couldn't tell if Lisa had anything on under the robe (R. 206). Lisa also wore cross

pierced earrings and a little diamond ring which she always wore (R. 207). The jewelry

was given to her by her boyfriend (Id.).

Barbara left the house at 9:00 a.m. with just Lisa at home (R. 208). When she got to Wayne's

mother's, Wayne was there with other people (Id.). Barbara stayed there until 3:00 that afternoon (R.

209). At some point she sent Wayne home to get newspapers to use as packing material; she did not

know how long he was gone, and he returned with newspapers (R. 209-10). When he returned, he

told her that Lisa was sitting on the couch watching TV (R. 210). At some point after returning with the

34

newspapers, Wayne left again with his stepfather (Id.).

At 3:00 that afternoon Wayne told Barbara that Lisa "was gone, she had run away" (R. 211).

He said the last time he saw her was at the back door "on her way to the store" (Id.). He also said that

Lisa was wearing a "maroon blouse, a pair of jeans that he had never seen before, and her

pocketbook" (R. 212). Prior to calling the police (id.), Barbara went back home and did not see Lisa;

she found Lisa's pocketbook and robe missing, but her wallet was there as was a maroon blouse (R.

213). Barbara DeCarr is the only source for the timeline to which she testified at trial.

Mr. Tompkins’ contention that Lisa was last seen wearing a

maroon blouse and jeans was supported by information contained

in police reports. A report dated July 9, 1984, authored by

Detective Gullo, contains a statement by Gladys Staley, Mr.

Tompkins mother, in which she told the police that she saw the

victim at approximately 1430 hours wearing a red shirt and

blue jeans (R. 511-12). Staley was never deposed by the

defense prior to trial or called by the defense to testify to

having seen Lisa after the time of the alleged murder. At the

1989 evidentiary hearing, Staley's affidavit was admitted into

evidence, wherein she affirmed that Lisa appeared at her house

about 2:30 p.m. on the day of her disappearance in short

shorts and a reddish-pink top, and that she scolded her

because it was cold and rainy that day and she was not warmly

35

dressed. Trial counsel testified that he had talked to Staley

prior to trial but he could not recall her telling him anything

significant that would have been useful (PCR. 97). Likewise, the

description of the clothes which Wendy Chancey said Lisa DeCarr

was wearing on March 24th matched the description given by Mr.

Tompkins to the police. At trial, the State argued that Mr.

Tompkins' statement was a lie. The jury did not know that Wendy

Chancey's description corroborated Mr. Tompkins' statement.

Both the June 8, 1984 police report and the July

28, 1983 report, which had never been seen by Mr.

Tompkins or his counsel until April 2001, completely

contradict Barbara DeCarr’s trial testimony. The

newly disclosed evidence, coupled with that which was

disclosed in 1989, further would have impeached the

State's belittling of the defense attempts to

demonstrate that Lisa had run away; this was a point

that was hammered by the State in its closing argument

(R. 356). Maureen Sweeney provides an entirely

different account of what occurred on March 24, 1983.

Sweeney’s account coincides with the initial police

report made by Barbara DeCarr, which was closer in

time to the event and before she ended her

36

relationship with Mr. Tompkins.

Evidence which might be inadmissible for one

purpose can be admissible for other legitimate

constitutional purposes such as impeachment. United

States v. Abel, 469 U.S. 45,56 (1984) ("[T]here is no

rule of evidence which provides that testimony

admissible for one purpose and inadmissible for

another is thereby rendered inadmissible; quite the

contrary is the case"). Here, the undisclosed police

reports were "critical" to Mr. Tompkins' defense: "In

these circumstances, where constitutional rights

directly affecting the ascertainment of guilt are

implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice."

Chambers v. Mississippi, 419 U.S. 284, 294 (1973).

Sweeney’s statement to the police is admissible

impeachment evidence which directly relates not only

to the credibility of Barbara, but to Kathy Stevens

credibility as well. Cross-examination would have

destroyed the State's theory that Wayne was the last

person to see Lisa alive. It would also have given

the jury substantive evidence on the crucial issue of

37

whether Lisa was killed at the time alleged and

required to be proven by the State. The evidence also

goes to whether Barbara was not being honest in her

effort to ensure Wayne's conviction.

Included in the lead sheets that were first

disclosed in April of 2001 was a notation, "call

Junior Davis back [illegible]- dates Barbara came to

his house [illegible]- deadend LEAD school record’s

revealed she was in school". Junior Davis’ name was

not disclosed on the State’s Notice of Discovery. Nor

were any statements by him regarding Barbara coming to

his house on a day when school records show that Lisa

was in school. Whether or not the police spoke to

Junior Davis, who is Lisa’s boyfriend, is relevant to

verifying or discrediting Kathy Stevens account of the

events of March 23, 1983. Stevens testified that when

she saw Wayne and Lisa struggling, Lisa asked her to

call the police (R. 252-53). Stevens did not call the

police but "went up to the store" and ran into Lisa's

boyfriend, Junior Davis (R. 254). She told him that

she wanted to call the police, but didn't because "it

was a little bit of being scared and not knowing what

38

to expect" and Lisa's boyfriend "just walked away like

it was nothing" (Id.). Kathy Stevens is the sole

source of this information. Mr. Tompkins, nor his

counsel, has ever had knowledge regarding this contact

between Detective Burke and Junior Davis.

Included in the lead sheets was the following

handwritten notation:

B/M living at 1223 E Osborne - Name maybe

Bob - Note left by Lisa about Bob wanting

sex - last name McKelvin? Nothing in

Records 6 Jul 84 - 11 Jul Real Name Everett

Knight 167243

The newly disclosed police records included the very

lengthy rap sheet for Everett Knight. Of course at

trial, the defense inquired regarding the police

investigation of Bob McKelvin. Detective Burke was

asked specifically about Bob McKelvin and his sexual

advances toward Lisa DeCarr. He was unsure if he

spoke with a Bob McKelvin; he claimed that he did not

recall the name of a black man who was a neighbor of

the DeCarrs and whether he spoke with him (R. 287).

Burke was aware of someone having made sexual advances

toward Lisa DeCarr, and "[i]f it was Bob McKelvin who

lived next door, yes, I was aware of some information

39

regarding that" (Id.). Burke never followed up on

that investigation (Id.), and McKelvin was never

interviewed by the police (R. 288). The name Everett

Knight was never disclosed by the State of Florida,

nor was his lengthy rap sheet which was in the State’s

possession and included a conviction for "sex offensecrime

against nature." The fact that McKelvin was

really Everett Knight was also never disclosed.

Therefore, the jury was never made aware of the

significance of Detective Burke’s failure to follow-up

on the McKelvin lead. Also disclosed in April of 2001

is a Criminal Intelligence Report dated Nov. 26, 1981,

that set forth Everett Knight’s criminal specialties,

"Hi-jacking and armed robbery." Although Barbara

DeCarr testified in cross-examination before the jury

that "Bob McKelvin had propositioned Lisa and had

basically told her that he would do certain things for

her for sexual favors" (R. 228), because the State

failed to disclose the extent of McKelvin’s criminal

background, defense counsel was unable to adequately

cross-examine Detective Burke and Barbara DeCarr.

The June 8, 1984 report, the July 28, 1983

40

report, and the handwritten lead sheets of Detective

Burke were not disclosed in 1989, despite public

records request on both the State Attorney’s Office

and the Tampa Police Department. Nor were the reports

and notes disclosed to Mr. Tompkins or his counsel at

any time prior to April, 2001, pursuant to the State

of Florida’s obligation. Despite the fact that there

is no indication in the record that these items were

previously disclosed to Mr. Tompkins, and in fact Mr.

Tompkins alleged the exact opposite, the circuit court

concluded that Mr. Tompkins "allegations regarding

this new Brady material are the same as [his] previous

Brady allegations and argument" and have "been

addressed and rejected at trial, and by numerous

courts on appeal and through post-conviction

proceedings." The new Brady evidence cannot simply be

dismissed based on what previous courts have ruled,

since the new Brady evidence was not disclosed by the

State until April of 2001. Because the State failed

to disclose these new materials until April, 2001, Mr.

Tompkins should be put in the position he should have

been in in 1989 had the State complied with its duty

41

to disclose. Provenzano v. State, 616 So.2d 428, 430

(Fla. 1993). The original judge and jury were not

aware of the new Brady material addressed here, nor

the information disclosed in 1989. Likewise, prior

appellate courts had no knowledge of the newly

disclosed notes and reports or the significance they

play in corroborating the Brady material discovered in

1989. While the trial court has characterized the new

allegations as the same as Mr. Tompkins previous Brady

allegations, this is an inaccurate review of the

claims before the court. All of the reports and/or

notes disclosed in April 2001 are entirely separate

and distinct from the Brady material which was

disclosed for the first time in 1989.

Also disclosed for the first time in April of

2001 were numerous police reports and statements

regarding the investigation into the disappearance of

a young woman named Jessie Albach. Albach and Lisa

Decarr were friends, the disappearance of both girls

was originally investigated as one case, with the

42

substantial information was disclosed in April, 2001, regarding the Albach investigation;

because both cases were being treated as a single police investigation, compelling

information as to the Albach case also relates to the DeCarr case. See Rogers, 782 So.

2d at 380.

A July 28, 1983, report that has just been disclosed contained the following report by Detective

Gullo:

13 Jun 83, 0855

The u/signed went to 4507 Giddens, Apt. #57 and spoke to

OTIS KIRNES, BM, No phone. Otis stated that he saw

JESSIE ALBACH on Thurs., 10 Jun 83 in the early evening

six pack of beer and then leave, but he does not know in which

direction they went or if they had a car. OTIS stated that he

did not know JESSIE was a RUNAWAY at that time, or he

would have told the gas station attendant. OTIS stated that he

does not know JESSIE that well, but that he has seen her in the

gas station on numerous occasions, and on times, they have

said 'hello' to each other, but he does not know her very well,

but knows for sure that he did observe her at the gas station on

Thurs., 10 Jun 83. There was no doubt in his mind.

Jessie Albach had been reported as a runaway on June 7, 1983.

The materials disclosed in April 2001 indicate a suspect known as W.H. Graham. The Tampa

Police Department disclosed for the first time a May 3, 1984, police report concerning interviews with

those bones "where [sic] determined not to be human."

43

Graham related he has observed an old (late 60's early 70's)

model Oldsmobile or Buick, black in color, starting to frequent

the field; the first time he noticed it was approx. three months

ago and the last time he saw it was approx. two to three weeks

ago.

Graham is sure this is the same vehicle which pulls into the open

field usually between 0300 h. and 0500 h., is driven by a B/M

and he always has a W/F passenger. Graham stated he

sometimes works in his yard during these hours and can clearly

see the B/M driver but cannot describe or identify him.

Interestingly, the 11/26/81 Criminal Intelligence Report regarding Everett Knight (A.K.A. Bob

McKelvin) indicates that Mr. Knight owns a green ’70 Pontiac Catalina. A May 9, 1984, report which

was not disclosed until April of 2001 reveals that in fact there were two W.H. Graham’s:

W/M GRAHAM, W.H., DOB 2 JUL 31, ADD: 4304 E.

WILDER, SS # 492-34-3794, D.L. #G650-888-31-242,

6’1", 185#, BLUE EYES, GREY HAIR, ARRESTED 8-18-

82.

W/M GRAHAM, WESLEY HOWARD, DOB 1 FEB 54,

ADD 4304 E. WILDER, SS # 488-64-0011, d.l. # g180-

416-56-243, 6’, 184 #, BLUE EYES, BRN HAIR,

ARRESTED 27 AUG 82.

The arrests in August of 1982 were both for the sale of alcoholic beverages without a license,

apparently at a club known as "Naked City." This report also reveals that the Graham’s had four

vehicles registered to the older Graham, including a 1971 Ford of an unknown model. Significantly,

both the car registered to McKelvin and the ’71 Ford registered to Graham match the description of

the vehicle that Wendy Chancey saw Lisa DeCarr getting into on the day of her disappearance. Mr.

44

Tompkins was never aware of this connection because neither the reports on McKelvin or Graham

were disclosed to the defense.

Another newly disclosed report reveals that on June 9, 1984, W.H. Graham found additional

bones in the area where the body believed to be Jessie Albach was found. In the newly disclosed May

3, 1984, report, it is reported that, "Graham stated he has had a continual problem with prowlers and

vehicles loitering in this field usually during the early morning hours (0230-0530 h., seven days a week).

Graham stated he has found women’s underclothing and purses in the field, on numerous occasions; he

also stated he has heard what sounded like female screams on numerous occasions, but did not

personally check on it himself."

Also disclosed for the first time in April of 2001 is a police report dated August 18, 1982,

regarding an establishment known as the "Naked City" which was operated by W. H. Graham. Police

charged five young white female dancers with lewd and lascivious acts. Mr. Graham was cited "for

maintaining premises where alcohol is sold unlawfully." One of the girls admitted that she was under

age and that Graham had altered her driver’s license to change her birth date. Again, Mr. Graham is

the person who reported the discovery of the remains that were identified as Jessie Albach.

Additionally, the State disclosed for the first time in April of 2001 a December 27, 1983, letter from the

State Attorney of Hillsborough County detailing the final disposition of charges pending against W. H.

withheld adjudication and 18 months of probation. On September 26, 1981, W.H. Graham was

charged with aggravated assault. Reportedly, he attacked an 18 year old white male with a pipe.

45

Records disclosed for the first time in April of 2001 show that in June of 1983, W. H. Graham was

documents describes W.H. Graham as "6’ 01" and weighing approximately 185, with either gray or

white hair that was straight and dirty or sloppy. However, the police officer was not able to find the

the rape and had contacted the police. He described her as a white female about 4’10" to 5’ tall. The

cab driver also advised "that Graham stated to him that he was having trouble with the girls and was

going to shut down Naked City." Thereafter, it was noted that Naked City in fact closed. On the June

7, 1983, juvenile runaway report regarding Jessie Albach it is represented that she was 4’11", 97 lbs.

Further reports which were previously undisclosed detail a witness’ identification of Graham in

the same area where both Lisa DeCarr and Jessie Albach lived. A May 21, 1984, report by Det.

Burke included an account of an interview of Charlotte Mercier, DOB 11/1/67, that provided as

follows:

She further stated that the victim in this offense was a very good

friend of a girl by the name of Leslie DeCarr who is missing.

She state at one time she had stayed with the DeCarr’s in the

trailer park where Jessie lives known as the Keba. She further

states that she knew one of Jessie’s brothers had abused her

quite a bit and that she had often seen this take place in front of

her, most of which was pushing and shoving and pulling hair

and she has seen George Albach hit Jessie on a few occasions.

She said normally when she and Jessie would go out, they

46

would go to the East Lake Mall or go to her house on E.

Giddens. She said she knew Jessie had participated at least

one (1) time in sexual intercourse with her brother because she

had walked in on them one (1) day when she was living on

Giddens. She said at that time she believed Jessie to be about

11 thru 13 yrs old. She said at that time she and Jessie had

never talked about the situation where she was caught during

sexual intercourse. She stated that she and Jessie had never

talked about sexual intercourse with anyone else. She advised

also Jessie had never talked to her about having any older men

approach her. She stated that on at least three or four

occasions,that she has gone with Jessie up to the Wagon Wheel

Restaurant to find Jessie’s mother (They normally call Jesse

Ladon). She said each time they would go to the Wagon

Wheel, that there was a WM, somewhere between 30 and 40

yrs old who would give Jessie quite a bit of attention and also

give her money. She stated she does not know who this

subject is. At this point, the u/signed showed a photopak to

Mercier at which time she picked out a photograph of WM

Graham as the subj she had seen in the area several times

around the Keba Trailer Park also at the Wagon Wheel and

also at Farmer John’s Market.

The report also contained an account of a May 17, 1984, interview of Sherry Bedsole, DOB

10/3/69, revealing additional suspects:

It should be noted at this point that Charlotte Mercier and

Sherry Bedsole are sisters, having different father. She made

aprox. The same statement as did her sister, with exception that

she had also seen Jessie have sexual intercourse with a subject

by the name of Billy DeCarr and also her brother Eddie

Mercier who is now 18 yrs old. She stated she made these

observations once at the DeCarr trailer and once at her house

when they lived on E. Giddens.

The circuit court dismissed these Brady violations because the reports pertain to the investigation

of the disappearance of Jessie Albach, not Lisa DeCarr, and "the evidence collected in the Albach

47

investigation is not relevant to the DeCarr case. The court failed to address the similarities in the two

cases, the fact that the girls were friends, the fact that they disappeared within months of each other, the

fact that many witnesses knew both girls, the fact that Lisa DeCarr is referenced in many of the reports

pertaining to Albach’s disappearance, and Barbara DeCarr, a key witness is referenced in the reports

as well. Furthermore, when Mr. Tompkins counsel received the Albach records in April 2001, the

Albach records were contained in one file and interspersed with the DeCarr records. Thus any

previous demand for records in 1989 pertaining to Wayne Tompkins and/or Lisa DeCarr should have

yielded the Albach records in addition to the DeCarr records. Contrary to the court’s finding, there is

nothing in the record which conclusively rebuts Mr. Tompkins diligence in requesting these records.

Also disclosed for the first time in April of 2001 by the Tampa Police Department is a list of the

questions that was to be asked Detective Burke by Assistant State Attorney Mike Benito at Mr.

Tompkins’ trial. Not only is this a list of the questions, but in places the answers have been typed in by

the person who prepared the document. The fact that the prosecutor felt compelled to provide the lead

detective with in essence a script is impeachment evidence. Moreover, the existence of this script was

only discovered because it was kept with Det. Burke’s file, its existence suggests that scripts for

witnesses was a practice of Mike Benito and that he may have employed this practice with his three

main witnesses: Barbara DeCarr, Kathy Stevens, and Kenneth Turco.

The trial court concluded that the "answers to the questions pertain to issues that are irrelevant to

the substantive testimony of the detective." This is incorrect. The questions and answers pertain to the

48

investigation he conducted and his interview of Wayne Tompkins which contained very pertinent

information as to Wayne’s account of the events. Furthermore, the trial judge has missed the

significance of the script. Most importantly, the script shows there may be a practice of scripting

witnesses. This is extremely relevant given the fact that the key witnesses’ stories changed several times

and only coincided with each other at trial. See Rogers v. State, 782 So. 2d 373, 384-85 (Fla. 2001).

Included in the information disclosed for the first time in April of 2001 is the fact that Kathy

Stevens served time in jail for committing perjury in 1986:

KATHY STEVENS, A.K.A. SAMPLE, A.K.A. MAMROE, A.K.A.

MONROE

BOOKING REPORT-9/25/86

VOP PERJURY CASE NUMBER 061-295KJ

60 DAYS TO BE RELEASED TO DRUG CENTER ONLY

This information was not disclosed by the State of Florida in 1989 when Mr. Tompkins sought to

call Ms. Stevens to testify at the state court evidentiary hearing. The State of Florida objected to

Stevens having to testify, yet it never revealed that Stevens had a perjury conviction. The judge

sustained the State's objection and forced counsel to talk to Stevens in the hallway and place on the

record what she would say on the witness stand if she had been called. Stevens, like the State,

neglected to reveal that at the time she was a convicted perjurer. Nor did the State reveal this when

Mr. Tompkins and the State were ordered by the federal district court to prepare a pre-evidentiary

hearing stipulation in advance of a possible federal evidentiary hearing.

the lower court at the hearing on Mr. Tompkins' motion for rehearing:

Regarding Kathy Stephens [sic], I don't--the State did not present the

evidence regarding Kathy Stephens alleged perjury conviction. I'm not

sure we even still have a perjury conviction, I don't believe any

evidence has been submitted to the Court to establish that there's been

a conviction. There is no certified conviction presented. . .

(T. Hearing 6/12/01 at 15-16). In response, Mr. Tompkins' counsel noted that "the State now seems

to be disputing whether it in fact happened. That's contrary to case law. The allegations have to be

accepted as true or an evidentiary hearing is warranted" (Id. at 22).

49

The trial court failed to understand the nature of the claim regarding Stevens’ perjury. Section

90.610 of the Evidence Code provides that "[a] party may attack the credibility of any witness . . . by

evidence that the witness has been convicted of a crime . . . if the crime involved dishonesty or false

statement regardless of punishment." Clearly, the State’s conduct in 1989 was premised upon a desire

to keep Kathy Stevens off the witness stand in order to prevent Mr. Tompkins from learning that she<