Swafford v. State, 80192
| Decision Date | 07 April 1994 |
| Docket Number | No. 80192,80192 |
| Parties | 19 Fla. L. Weekly S179 Roy Clifton SWAFFORD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Michael J. Minerva, Capital Collateral Representative, Martin J. McClain, Chief Asst. Capital Collateral Representative, and Kenneth D. Driggs, and Harun Shabazz, Asst. Capital Collateral Representatives, Office of the Capital Collateral Representative, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
Roy Swafford, a prisoner on death row appeals the trial court's denial of his second motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const.; Fla.R.Crim.P. 3.850. We affirm the trial court's action.
A jury convicted Swafford of the first-degree murder and sexual battery of an employee he abducted from a gas station and recommended that he be sentenced to death, which the trial court did. This Court affirmed the convictions 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 on Swafford, setting his execution for November 13. On October 15 Swafford filed his first rule 3.850 motion. 1 Circuit Judge Kim Hammond held a preliminary hearing on October 24, 1990 and, on October 30, summarily denied the motion without an evidentiary hearing. This Court entered a temporary stay and then affirmed the trial court and denied Swafford's petition for writ of habeas corpus. Swafford v. Dugger, 569 So.2d 1264 (Fla.1990). 2 In May 1991 Swafford filed a second habeas petition, arguing the alleged conflict of interest of one of Swafford's trial attorneys, Howard Pearl, which this Court denied. Swafford v. Singletary, 584 So.2d 5 (Fla.1991).
In November 1991 Swafford filed a second rule 3.850 motion. 3 Judge Hammond summarily denied the second motion without an evidentiary hearing in May 1992. After Judge Hammond denied Swafford's motion for rehearing and for disqualification, Swafford appealed the denial of relief to this Court and also moved for relinquishment of jurisdiction, arguing the need for an evidentiary hearing on whether Swafford's other trial counsel, Ray Cass, had a conflict of interest and on whether Judge Hammond engaged in improper ex parte communication with the state when he directed the attorney general's office to prepare the orders denying relief in October 1990 and May 1992. In January 1993 this Court granted Swafford's motion to relinquish jurisdiction and in March clarified the relinquishment: "The purpose of the relinquishment is to allow expansion of the record on appeal to include an evidentiary hearing on the status of Mr. Swafford's trial counsel, Ray Cass, as a special deputy sheriff and Mr. Swafford's claim that ex parte communication occurred between the State and the trial judge."
On March 29, 1993 Circuit Judge R. Michael Hutcheson held an evidentiary hearing pursuant to this Court's order. The following witnesses testified on the ex parte communication issue: 1) Judge Hammond stated that, although time had dimmed his recollection of this case, he, alone, decided how to rule in cases, after which he instructed his staff to contact the parties and request proposed orders; 2) Barbara Davis, assistant attorney general, said that Randy Rowe, Hammond's law clerk, called her after the October 24, 1990 hearing, that he told her what changes to make in her previously filed order, and that they did not discuss the merits and, after the second rule 3.850 motion had been filed, that Rowe called her and requested a proposed order setting out the state's position; 3) Jerome Nickerson, former assistant capital collateral representative (CCR), testified that he never received personal notice from Rowe that Judge Hammond requested the state to prepare an order after the October 1990 hearing; 4) two CCR secretaries said that telephone messages to the CCR office were always given to the person being telephoned; 5) Sean Daly, former assistant attorney general, current assistant state attorney in the seventh circuit, testified that, from what he remembered of the case, Davis asked him to prepare the 1992 requested proposed order and that in his experience, if the person called at CCR were not in, a telephone call was usually not returned; and 6) Randy Rowe, Judge Hammond's law clerk, stated that for the 1990 order he called the attorney general's office to request the order and CCR to notify that office of the request, that he always called both sides when the judge wanted an order, and that he never discussed the merits of any requested orders with the parties.
On the conflict of interest claim Ray Cass testified that he received a deputy's card from former Sheriff Duff between 1968 and 1971, that he thought the card was merely a goodwill gesture, that he never thought the card was worth anything or that it made him a deputy, that he stopped carrying the card in 1973, and that he told CCR about the card in 1990. The current sheriff's secretary, who had worked for Sheriff Duff, showed her card to the court and testified that Duff gave them to everyone, including babies and the secretary's five- and seven-year-old nephews.
Swafford raises the following issues on appeal: 1) the second 3.850 motion should not have been denied summarily; 2) Judge Hammond should have disqualified himself because of ex parte communications; 3) chapter 119 violations occurred; 4) Brady violations occurred; 5) counsel was ineffective at the guilt phase; 6) newly discovered evidence establishes Swafford's innocence; 7) counsel was ineffective at the penalty phase; 8) there were constitutionally invalid penalty instructions and the improper application of aggravators; and 9) Ray Cass had a conflict of interest. Swafford relies on Huff v. State, 622 So.2d 982 (Fla.1993), and Rose v. State, 601 So.2d 1181 (Fla.1992), in arguing issues 1 and 2, but those cases are factually distinguishable from the instant one. Rose changed counsel during the pendency of a postconviction motion and, it appears from the opinion, that he received no hearing on his motion at all. Similarly, the trial court denied Huff's motion without any hearing. Such is not the case here, however, where Judge Hammond listened to the parties in October 1990 and subsequently decided that an evidentiary hearing was not needed. 4
Judge Hammond then simply requested the state to prepare an order. No discussions on the merits of the case were held ex parte. This...
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Hodges v. State
...Hodges' case because Judge Padgett had already decided which of his claims would proceed to an evidentiary hearing. See Swafford v. State, 636 So.2d 1309, 1311 (Fla.1994) (distinguishing Rose based on the fact that a Huff hearing had been Moreover, Hodges was not denied an opportunity to re......
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Hodges v. State
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Swafford v. State, SC92173.
...attorney Pearl's conflict of interest; (6) ineffective assistance at the penalty phase; and (7) cumulative errors. Swafford v. State, 636 So.2d 1309, 1310 n. 3 (Fla.1994). The circuit court denied the motion without an evidentiary hearing in May 1992. Id. at 1310. After the court denied Swa......
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Swafford v. State
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