Tompkins v. State

• Decision Date: 10 May 2007
• Docket Number: No. SC06-277.,SC06-277.
• Citation: 980 So.2d 451
• Parties: Wayne TOMPKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

980 So.2d 451

Wayne TOMPKINS, Appellant, v. STATE of Florida, Appellee.

No. SC06-277.

Supreme Court of Florida.

May 10, 2007.

Rehearing Denied July 16, 2007.

Neal Dupree, Capital Collateral Regional Counsel, Fort Lauderdale, FL, and Martin J. McClain of Backhus and Izakowitz, P.A., Special Assistant CCRC—South, Wilton Manors, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Respondent.

PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death, appeals an order of the circuit court denying his second successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. The issue is whether the circuit court erred in summarily denying Tompkins' claim that new information that impeaches a portion of an important witness's trial testimony requires reversal of the conviction and sentence of death. For the reasons that follow, we affirm the trial court's order.

FACTS AND PROCEDURAL HISTORY

In 1985, Tompkins was convicted of the first-degree murder of fifteen-year-old Lisa DeCarr and was sentenced to death on the recommendation of a unanimous jury. Lisa disappeared from her home in Tampa on March 24, 1983. In June 1984, her skeletal remains, along with her pink bathrobe and jewelry, were found in a shallow grave under her house. In September 1984, Tompkins, the boyfriend of Lisa's mother, was charged with the murder.

The State presented "three key witnesses" at trial—Barbara DeCarr, Lisa's mother, Kathy Stevens, Lisa's friend, and Kenneth Turco, a jailhouse informant. Tompkins v. State, 502 So.2d 415, 417 (Fla. 1986) ("Tompkins I"). Kathy Stevens, whose testimony is at issue in Tompkins' current motion, testified at trial that she went to Lisa's house between eight and nine o'clock on the morning of March 24, 1983. After hearing a loud crash, she 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 but Stevens did not do so. Stevens explained that after she left Lisa's house, she walked to the corner store where she ran into Lisa's boyfriend, James Davis.¹ Stevens stated that she told Davis what she had witnessed but Davis seemed unconcerned. Because she was scared and Davis "walked away like it was nothing," Stevens just went to school. When Stevens returned to Lisa's house later that day to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins made sexual advances towards Lisa on two previous occasions.

Mrs. DeCarr's and Turco's testimony was summarized by this Court on direct appeal as follows:

Barbara DeCarr ... 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.

....

Kenneth Turco ... 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. Tompkins did not present any evidence and the jury found him guilty of first-degree murder. See id. at 418.

At the penalty phase, the State presented evidence that Tompkins had been convicted of kidnapping and rape stemming from two separate incidents in Pasco County that occurred after Lisa's disappearance. Tompkins presented testimony regarding his good work record, shy and nonviolent personality, and honesty. See id. The jury recommended death by a vote of twelve to zero and the trial court imposed a sentence of death. This Court affirmed the conviction and death sentence. See id. at 421.

Beginning with his initial motion for postconviction relief filed in March 1989, Tompkins has asserted that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that impeaches Stevens' trial testimony. In his first postconviction motion, Tompkins alleged that the State failed to disclose file memoranda prepared by prosecutor Michael Benito in which he memorialized two conversations with Stevens that were inconsistent with her trial testimony. The inconsistencies Tompkins identified were: (1) the difference in the time of Stevens' observation of the assault on the day Lisa disappeared;² (2) Stevens' statement at trial that Lisa asked her to call the police was not mentioned in Benito's memo; and (3) Stevens' testimony that during Tompkins' prior assault on Lisa five months before the murder, Tompkins commented that he was going to kill Lisa, was different than her statement to Benito that Tompkins threatened to kill Lisa if she ever hit him again.³ Tompkins also alleged that the State failed to disclose that at the time Stevens first told Benito that she had witnessed Tompkins attacking Lisa, which occurred two years after Lisa's disappearance, Benito arranged for Stevens to visit her boyfriend in jail.

After an evidentiary hearing, the circuit court denied all of Tompkins' Brady claims without discussion. On appeal, this Court affirmed without specifically addressing the claims related to Stevens. See Tompkins v. State, 549 So.2d 1370, 1372 (Fla. 1989) ("Tompkins II").

In a federal habeas petition, Tompkins raised the same Brady claims regarding the inconsistencies in Stevens' statements and the fact that Benito arranged for Stevens to visit her boyfriend in jail. Regarding Benito's file memoranda, the federal district court found that

[e]ven assuming that [memoranda] qualif[y] as evidence covered by the Brady rule, there is no reasonable probability that availability of such evidence, either separately or collectively, would have changed the outcome of the trial. It cannot reasonably be said that [Tompkins] was denied a fair trial as a result of the prosecuting attorney's failure to affirmatively disclose these materials.

Tompkins v. Singletary, No. 89-1638-CIV-T-99B, 1998 U.S. Dist. LEXIS 22582, *38 (M.D.Fla. Apr. 17, 1998). In reaching this conclusion, the district court noted that "at the 3.850 evidentiary hearing, Benito testified that his two memoranda to his file did not purport to recite all the details of what Kathy Stevens told him during his telephone conversations with her." Id. at *38 n. 13.

Addressing Tompkins' claim that the State violated Brady by failing to disclose that Benito assisted Stevens in arranging a visit with her boyfriend, the district court found that "[a]ssuming arguendo that this is something that should have been disclosed to the jury, such failure can hardly be regarded as implicating such gravity as would put the case in a different light or undermine confidence in the verdict." Id. at *39. The Eleventh Circuit affirmed the district court's denial of these claims without discussion. See Tompkins v. Moore, 193 F.3d 1327, 1331 n. 1 (11th Cir.1999) ("Tompkins III").

On March 22, 2001, after Governor Bush signed Tompkins' third death warrant, Tompkins filed a second postconviction motion in state court. In this motion, Tompkins asserted, among other claims, that the State failed to disclose favorable evidence in violation of Brady that demonstrated that the testimony of the State's three key witnesses and the State's closing arguments were false in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). See Tompkins v. State, 872 So.2d 230 (Fla.2003) ("Tompkins IV"). Specifically, Tompkins alleged that the State withheld several police reports and other documents which he claimed contained (1) statements that tended to contradict the testimony of Mrs. DeCarr, Stevens, and Turco, (2) information about other possible suspects, (3) information about a police investigation into the disappearance of one of Lisa's friends that was being investigated in conjunction with the DeCarr case, and (4) information related to the credibility of Stevens and Turco. Id. at 238. The circuit court denied the motion and this Court affirmed. See id. at 233. Regarding Tompkins' Brady claim, this Court concluded that "[e]ither the undisclosed documents are not Brady material because they are neither favorable to Tompkins nor suppressed, or Tompkins has not demonstrated that he was prejudiced by the lack of disclosure." Id. at 241.

Tompkins' current motion, which was filed in accord with this Court's decision in Tompkins v. State, 894 So.2d 857, 858-59 (Fla.2005) ("Tompkins V"),⁴ alleges that new information provided by James Davis, Lisa's boyfriend at the time of her disappearance, significantly impeaches the testimony of Kathy Stevens and requires reversal of the conviction and death sentence. Specifically, Davis stated that he did not see Stevens at the corner store on the morning Stevens witnessed Tompkins assaulting Lisa. In April 2002, Davis made the following statements in a sworn affidavit:

1....