Tompkins v. State, SC01-1619.

• Decision Date: 09 October 2003
• Docket Number: No. SC01-1619.,SC01-1619.
• Citation: 872 So.2d 230
• Parties: Wayne TOMPKINS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

872 So.2d 230

Wayne TOMPKINS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. SC01-1619.

Supreme Court of Florida.

October 9, 2003.

As Revised on Denial of Rehearing April 22, 2004.

Rehearing Denied June 25, 2004.

Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel-South, Martin McClain, Special Assistant Capital Collateral Regional Counsel and Suzanne Myers, Assistant Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Appellant/Cross-Appellee.

Charles J. Crist, Jr., Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee/Cross-Appellant.

PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death and an active death warrant, appeals an order of the circuit court denying in part his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The State cross-appeals the circuit court's order granting Tompkins a new penalty phase based on evidence that the trial court directed the State to prepare the sentencing order in an ex parte communication after the trial court imposed the death penalty.¹ We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the portion of the trial court's order denying Tompkins' motion for postconviction relief and reverse the portion of the trial court's order granting a new penalty phase.

FACTS AND PROCEDURAL HISTORY

In 1985, Tompkins was convicted of the first-degree murder of Lisa Decarr and sentenced to death on the recommendation of a unanimous jury. See Tompkins v. State, 502 So.2d 415 (Fla.1986)

. This Court's opinion on direct appeal sets forth the following facts:

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim's skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim's mother's boyfriend, was charged with the murder.

At trial, the state's three key witnesses testified as follows. Barbara DeCarr, the victim's mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother's house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother's house again, and Barbara did not see or speak to him again until approximately 3 o'clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa's pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police.

The state's next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr's house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.

Kenneth Turco, the final key state's witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away.

Id. at 417-18.

The jury recommended death by a vote of twelve to zero. After finding three aggravating circumstances² and one mitigating circumstance,³ the trial court imposed a sentence of death.

Tompkins raised ten issues on appeal, four related to the guilt phase⁴ and six related to the penalty phase.⁵ See id. at 419. This Court found no reversible error and affirmed both the conviction and death sentence. See id. at 421.

Tompkins' first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 included nineteen claims. See Tompkins v. Dugger, 549 So.2d 1370, 1372 (Fla.1989)

.⁶ After an evidentiary hearing at which Tompkins presented evidence primarily related to his Brady and ineffective assistance of counsel claims, the trial court denied relief. See id. This Court affirmed the trial court's denial of relief on appeal. See id. With respect to Tompkins' Brady claims, we stated:

Tompkins claims that the state should have provided defense counsel with jail records showing that Tompkins was given Sinequan while in jail; school records indicating that Lisa had been seen by schoolmates after she allegedly was killed; and information suggesting that Tompkins' cell mate, who had testified that Tompkins confessed, was a state agent.

The record clearly reflects that counsel knew that Lisa reportedly was seen after the time established for her murder. Counsel attempted to introduce this very evidence through the hearsay testimony of Lisa's mother. We also agree that counsel's lack of knowledge that Tompkins asked for medication while in custody had no prejudicial effect on the outcome of the trial. Finally, we find no evidence in the record to support any theory that Tompkins' cell mate was a state agent. Accordingly, we affirm the trial court on the Brady issue.

Id.

As to Tompkins' claims of ineffective assistance of trial counsel, this Court concluded that counsel was not ineffective during the guilt phase but was deficient in failing to investigate and present evidence of mitigation in the penalty phase. See id. at 1373. However, we agreed with the trial court that this mitigating evidence would not "have affected the penalty in light of the crime and the nature of the aggravating circumstances." Id.

Tompkins also filed a petition for a writ of habeas corpus in this Court, raising nine claims. See id. at 1371.⁷ We denied relief on all of Tompkins' claims. See id.

Subsequently, Tompkins filed a petition for a writ of habeas corpus in the federal district court. See Tompkins v. Moore, 193 F.3d 1327, 1329 (11th Cir.1999)

. The federal district court denied relief and Tompkins appealed to the Eleventh Circuit Court of Appeals. See id. The Eleventh Circuit affirmed without discussing several of the issues addressed by the district court.⁸

The Eleventh Circuit also rejected Tompkins' argument that trial counsel was ineffective during the guilt phase for failing to introduce several pieces of evidence, including witness Wendy Chancey's testimony that she had seen Lisa alive after the date the murder was alleged to have occurred. See id. at 1334-35 & n. 3. With respect to Tompkins' claims of counsel's ineffectiveness during the penalty phase, the Eleventh Circuit concluded that the "weight of [the] aggravating circumstances overwhelm[ed] the mitigating circumstance evidence that was and could have been presented." Id. at 1339. Lastly, the Eleventh Circuit addressed Tompkins' argument that the State knowingly presented false testimony of Stevens, Turco, and the medical examiner in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).⁹ The Eleventh Circuit rejected the claims as to Stevens and Turco outright, agreeing with the district court that Tompkins' "contentions are palpably without merit." Id. at 1342 n. 14.

With respect to Tompkins' Giglio claim regarding the medical examiner's testimony that dental records identified the skeleton as that of Lisa DeCarr, the Eleventh Circuit held that even if this had been false testimony and the State knew it was false, Tompkins' claim would still fail to meet the materiality element of the Giglio test. See id. at 1341. The Eleventh Circuit noted that there was "overwhelming" evidence that the skeletal remains belonged to Lisa and found Tompkins' argument that "`there was very little evidence of the identity of the deceased' ... preposterous." Id. at 1341-42.

On March 22, 2001, Governor Bush signed Tompkins' third death warrant,¹⁰ which resulted in Tompkins filing a second postconviction motion in state court. After a Huff hearing,¹¹ the trial court concluded that an evidentiary hearing was required only on Tompkins' claim that the sentencing judge, Harry Lee Coe, erred in failing to (1) independently weigh the aggravating and mitigating circumstances, and (2) disclose that the State had prepared the sentencing order. After hearing several witnesses presented by Tompkins and argument from both Tompkins and the State, the trial court found that these errors entitled Tompkins to a new penalty phase.

The day after the evidentiary hearing, the trial court granted Tompkins' motion for a stay of execution. In a subsequent order on Tompkins' postconviction motion, the trial court provided written findings supporting the denial of all of Tompkins' other claims and the granting of the new penalty phase. The trial court also denied Tompkins' motions for DNA testing and to compel the disclosure of public records.

Tompkins now appeals, raising four issues: (1) whether the trial court erred in denying his Brady claims...