Swafford v. State, 85682

• Decision Date: 11 July 1996
• Docket Number: No. 85682,85682
• Citation: 679 So.2d 736
• Parties: 21 Fla. L. Weekly S304 Roy Clifton SWAFFORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 736

679 So.2d 736

21 Fla. L. Weekly S304

Roy Clifton SWAFFORD, Appellant, v. STATE of Florida, Appellee.

No. 85682.

Supreme Court of Florida.

July 11, 1996.

Rehearing Denied Sept. 9, 1996.

Martin J. McClain, Chief Assistant CCR, Office of the Capital Collateral Representative, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Roy Clifton Swafford appeals an order entered by the trial court denying relief sought under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Swafford was convicted of first-degree murder and sentenced to death. This Court affirmed his conviction and sentence. Swafford v. State, 533 So.2d 270 (Fla.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989).

On September 7, 1990, Governor Martinez signed a death warrant scheduling Swafford's execution for November 13, 1990. Swafford filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The motion included a Brady ¹ claim which alleged in part that the State had withheld material exculpatory evidence obtained during the investigation of various suspects including the suspect James Michael Walsh. According to Swafford, the evidence allegedly withheld by the State included statements to the police by Michael Lestz, who was among the suspects investigated regarding potential involvement in the murder of Brenda Rucker. Lestz recounted certain statements and activities of James Michael Walsh which heightened Walsh's status as a potential suspect in the Rucker murder investigation. ²

Also alleged to be in the police reports provided to Swafford was evidence establishing that when Walsh was arrested on several occasions following Rucker's murder, he had in his possession each time a composite drawing of the Rucker murder suspect, which he resembled. ³ Police reports indicated that when interviewed about the Rucker murder, Walsh became nervous and upset and refused to divulge to investigators his whereabouts on February 14 and 15, 1982.

Swafford further alleged that police reports provided to him indicated that Walsh was known to carry a .38 caliber handgun, the same type of weapon used in the Rucker homicide. Furthermore, the reports showed that when police in Arkansas searched Walsh's residence, they found various types of .38 caliber ammunition. Several types of .38 caliber ammunition were removed from Rucker's body during the autopsy. Also found on Rucker's body were cigarette burns similar to those allegedly inflicted on Lestz by Walsh during homosexual attacks.

The trial court summarily denied Swafford's motion. With regard to the evidence Swafford claimed the State did not disclose concerning other suspects, the court stated:

The court finds that the state was not required to provide Swafford with information regarding all suspects investigated. There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Swafford has failed to show that the hearsay information on other suspects was admissible or prejudicial.... There is no reason to believe that even if all this information had been available to defense counsel that it would have assisted him or have been presented at trial. The court finds that even if the information had been presented there is no reasonable basis on which to find the outcome would have changed. Duest v. Dugger, 555 So.2d 849 (Fla.1990).

This Court affirmed the denial and denied Swafford's petition for a writ of habeas corpus. Swafford v. Dugger, 569 So.2d 1264 (Fla.1990). With regard to Swafford's Brady claim, the Court stated:

The court found that no Brady violation had occurred and that Swafford had not established the materiality of the information he claims the state withheld.... Swafford has shown no error in the court's ruling, and we hold that the court correctly refused to hold an evidentiary hearing on the claim.

Swafford, 569 So.2d at 1267.

After this Court rendered its decision, the Eleventh Circuit granted Swafford a stay of execution. Swafford's appeal to the Eleventh Circuit was held in abeyance while he continued to seek relief in the state courts. In May 1991, Swafford filed a second habeas petition in this Court, which we denied. Swafford v. Singletary, 584 So.2d 5 (Fla.1991). He then filed a second 3.850 motion in November 1991. In addition to appealing its denial, he filed a motion to relinquish jurisdiction and hold appeal in abeyance. The appeal was based on new information he obtained regarding the status of Swafford's trial attorney, Ray Cass, as a special deputy sheriff and alleged ex parte communications between the State and the trial judge. We granted the motion to relinquish jurisdiction so the trial court could address these issues. After a hearing, the trial court again denied relief and we affirmed. Swafford v. State, 636 So.2d 1309 (Fla.1994).

While Swafford's motion for rehearing with this Court was pending, defense counsel located Mr. Lestz. Lestz provided an affidavit dated April 30, 1994, which Swafford claimed corroborated other evidence the State failed to disclose in violation of Brady. The affidavit provided:

1. My name is Michael Eugene Lestz and I live in the state of Illinois. In 1982 I was in Daytona Beach, Florida during the Daytona 500. The Daytona 500 Auto Race took place on Sunday, February 14, 1982.

2. While I was there, I was in the presence of two guys named Walter Levi and Michael Walsh. Michael Walsh borrowed my van on several occasions and without telling me where he was going. I previously told the Daytona Beach sheriff's office about these occasions.

3. I remember, on the day of the Daytona 500, Michael Walsh had two 38 caliber handguns and was in a big hurry to get rid of them. One of these 38's was a hammerless revolver. He told me that the handguns had been used and he had to get rid of them. Walsh started going to different bars in order to get rid of the guns. One of the places Walsh went to get rid of these handguns was the Shingle Shack Topless bar. The three of us had been to this bar on several occasions and we were all very familiar with it. Also Michael was acting very nervous on this particular day. He said it was because he didn't want the guns in his possession.

4. A couple of days after the Daytona 500 and after Michael Walsh had gotten rid of the two guns, we were in the parking lot of a store and there were pamphlets about the Brenda Rucker homicide. Walsh became upset and began to snatch the pamphlets off the cars saying they shouldn't be looking for the suspect in Daytona Beach when she was not killed here. Walsh would never tell us what he meant by this.

5. Two sheriff's officers from the Volusia County Sheriff's department came to interview me when I was in the Marion Federal Prison in Illinois. I gave them detailed, truthful statements of what I could remember at that time. At some point at a later date I remembered some more details and I wrote them back to explain the details to them. They wrote me back and told me to "not worry about it."

6. Because I was with Michael Walsh before and after the incident, I knew how he was acting and I think there is a good chance that he committed the murder of Brenda Rucker.

On the basis of this affidavit, Swafford filed, along with his motion for rehearing, a motion to relinquish jurisdiction and hold appeal in abeyance in light of newly discovered evidence. In an order dated June 1, 1994, we denied Swafford's motion for relinquishment and motion for rehearing.

On June 13, 1994, Swafford filed a third motion for postconviction relief, alleging that Lestz's affidavit constituted newly discovered evidence ⁴ which, in conjunction with the evidence previously withheld by the State, proved a Brady violation and furthermore established Swafford's innocence. The trial court summarily denied the motion without an evidentiary hearing. The trial court's decision is now before us for review.

We reject Swafford's Brady claim because, as we recognized in Swafford's first motion for postconviction relief, the State was not required to provide to defense counsel every piece of information regarding other suspects. Swafford, 569 So.2d at 1267. The introduction of Lestz's statement does not alter that conclusion. However, Lestz's statement places Walsh at the Shingle Shack with a .38 caliber handgun at or near the time that the murder weapon was discovered in that locale. We find this evidence, when viewed in conjunction with the evidence alleged in Swafford's prior 3.850 motion and the conflicting evidence presented in Swafford's original trial with regard to exactly where within the bar the gun was found, ⁵ is sufficient to warrant an evidentiary hearing on the issue of whether the statement is of such a nature that it would probably produce an acquittal on retrial. See Jones v. State, 591 So.2d 911 (Fla.1991).

We accept as sufficient for the purpose of demonstrating that an evidentiary hearing is required, Swafford's claim that Lestz's statement amounts to newly discovered evidence. Our acceptance is based in part on the State's failure to assert, with regard to this issue, anything more than an allegation that defense counsel had years to find Lestz.

We specifically hold, however, that our acceptance of Swafford's claim in this regard does not mean Lestz's statement is newly discovered evidence as a matter of law. Rather, Swafford's newly discovered evidence claim remains to be factually tested at the evidentiary hearing. Accordingly, we direct the trial court on remand to determine whether Swafford has demonstrated as a threshold requirement that his untimely and successive motion for postconviction relief...