This proceeding involves the appeal of the circuit court’s denial of Mr. Swafford’s motion for post-conviction relief. The circuit court denied Mr. Swafford’s claims following an evidentiary hearing. Citations in this brief to designate references to the records, followed by the appropriate page number, are as follows:

"R. ___" - Record on appeal to this Court in first direct appeal;

"PC-R1. ___" - Record on appeal from denial of the first Motion to Vacate Judgment and Sentence.

"PC-R2. ___" - Record on appeal from denial of the second Motion to Vacate Judgment and Sentence.

"PC-R3. ___" - Record on appeal from denial of the third Motion to Vacate Judgment and Sentence.

"PC-R4. ___" - Pending record on appeal from denial of relief after evidentiary hearing.

"PC-R4T. ___" - Transcript of evidentiary hearing conducted February 6-7, 1997.

All other citations will be self-explanatory or will otherwise be explained.

This brief is typed in Courier 12 point not proportionately spaced.

PRELIMINARY STATEMENT i

Mr. Swafford is innocent of the murder for which he was convicted and sentenced to death. Since the filing of the State’s Answer Brief on May 17, 1999, three binding decisions have issued which are directly contrary to the State’s position and mandate a new trial for Mr. Swafford. These three decisions are: Strickler v. Greene, 119 S.Ct. ___, 65 Cr. L. Rptr. 363 (June 17, 1999); Young v. State, ___ So. 2d ___, Case No. 90,207 (Fla. June 10, 1999); Lightbourne v. State, ___ So. 2d ___, Case No. 89, 526 (Fla. July 8, 1999).

The State begins its Answer Brief by making an argument that the "Introduction" and "Statement of the Case" in the Initial Brief should be stricken by this Court and disregarded. This Court has denied the State’s separately filed motion to strike after receipt of Mr. Swafford’s response to the motion to strike.

In its Statement of the Case and the Facts, the State accuses Mr. Swafford of having displayed "his disdain for the rules of this Honorable Court as shown by his untimely filing of his Motion for Rehearing of the Order Denying his Rule 3.850 motion and his Notice of Appeal in this case." Answer Brief at 1. This Court denied the State’s Motion to Dismiss, apparently agreeing with Mr. Swafford’s position as set forth in his response to the motion to dismiss that the Notice of Appeal was timely filed. The State has overlooked the fact that this Court has ruled adversely to the State on the issue of whether the Notice of Appeal was timely filed.

In its Statement of the Case, the State spends two pages discussing the federal district court order denying Mr. Swafford’s federal habeas petition. The State also attaches that order to its Answer Brief. Yet, the State fails to note that no evidentiary hearing was held in federal district court. Thus, the purported findings were in fact legal conclusions not factual determinations.

The State does briefly acknowledge that Mr. Swafford appealed the district court order to the Eleventh Circuit. However, it neglects to observe that in April of 1999 the Eleventh Circuit dismiss the appeal without prejudice on the State’s motion that this Court (the Florida Supreme Court) should resolve the pending appeal before the Eleventh Circuit addresses the issues raised challenging the federal district court’s order denying relief. See Attachments A, B, C and D. Mr. Swafford had challenged in the Eleventh Circuit appeal the federal district’s court analysis, contending that it was wrong under Kyles v. Whitley and other federal authority. The State chose to seek a dismissal of that appeal without prejudice to Mr. Swafford’s right to challenge the federal district court’s order at some point in time in the future. Mr. Swafford has and does challenge the legal correctness of the specific passages of the district court order quoted in the Answer Brief’s Statement of the Case. See Attachment A. The federal district court’s order was clearly wrong as explained in Mr. Swafford’s Supplemental Brief, which is attached as Attachment A. It was improper for the State to insert into its Statement of the Case excerpts of the federal district court’s order as in essence argument without revealing that the order specifically has not been affirmed on appeal and that the State chose to delay Mr. Swafford’s challenge to that order by successfully moving to dismiss the appeal without prejudice to Mr. Swafford.

The federal district court order cited to and quoted by the State is of no precedential value. It was not introduced into evidence in circuit court in the proceedings below and at issue in this appeal. The federal district court has been challenged on appeal in the Eleventh Circuit Court of Appeals. And that appeal has yet to be decided because the State has sought to delay the resolution of Mr. Swafford’s challenge to the legal correctness of the federal district court’s analysis. This Court should give absolutely no deference to that order entered without the benefit of an evidentiary hearing and entered before the discovery of the evidence by Mr. Swafford’s collateral counsel which this Court already has determined warranted an evidentiary hearing. When this Court remanded this case for an evidentiary hearing, the federal district court’s order was already in existence, and this Court properly ignored it. The evidence warranting a hearing had not been presented to the federal court in the habeas petition because it was not known at the time of the filing of the federal petition. Swafford v. State, 679 So. 2d 736 (Fla. 1996).

In its Statement of the case at page 7, the State repeats its allegation that "Swafford filed an untimely motion for rehearing" and that "Swafford filed an untimely Notice of Appeal". This Court’s denial of the State’s Motion To Dismiss constituted a determination that this Court had jurisdiction and that the Notice of Appeal was timely filed.

In its Statement of the Case, the State does not "clearly specif[y]" the areas of disagreement with Mr. Swafford’s Statement of the Case. Rule 9.210(c), Fla. R. App. Pro. Instead, the State provides a disjointed and confusing version of the facts which is an attempt to obscure the compelling facts warranting a new trial for Mr. Swafford.

At page 15 of the Answer Brief is a discussion of Mr. Lestz’ testimony of Mr. Walsh’s efforts to sell guns on the night of the Brenda Rucker homicide. "Later, ‘[t]hat evening he wanted me to take him to some different bars and see if he could sell the guns.’" Answer Brief at 15. The State then asserts: "Mr. Lestz recalled the name of only one bar, ‘the Shark Lounge.’" The State observes: "Defense counsel McClain then suggested ‘the Shingle Shack,’ (T 65), and when the State’s objection was sustained, counsel offered ‘an affidavit of Michael Eugene Lestz’ which he showed to Mr. Lestz." Answer Brief at 15. As the State notes, Mr. Lestz indicated that the affidavit did not refresh his recollection. The State’s discussion completely fails to address the State’s cross-examination of Mr. Lestz, wherein the State was successful in refreshing Mr. Lestz’ memory. (PC-R4T. 122-23, 127-28). Mr. Lestz did recall in cross-examination by the State that on the night of after the Rucker homicide Mr. Lestz had driven Mr. Walsh to various bars in the Daytona Beach area, including the Shingle Shack. Mr. Walsh wished to get rid of two .38's that he had in his possession. One of the places Mr. Lestz took Mr. Walsh that evening was the Shingle Shack:

(PC-R4T. 122-23). On redirect, Mr. Lestz testified:

(PC-R4T. 127-28). At the Shingle Shack, Mr. Lestz remained in his vehicle while Mr. Walsh disappeared inside.

At page 32 of the Answer Brief in its Statement of the Case, the State discusses the testimony of State Attorney Investigator, Deborah Champion. As to this testimony, the State simply tries to spin the testimony beyond recognition. Ms. Champion did discuss how easily she was able to obtain information when she identified herself as a State Attorney Investigator. But, she also testified that the information about Mr. Lestz would not have been revealed to a defense attorney or his proxy. (PC-R4T. 592). This corroborated the testimony of Mr. Swafford’s witnesses (collateral attorneys and their investigator) that the information was not revealed to them because under federal law it could not be disclosed to defense attorneys or those who worked for them. (PC-R4T. 376). The State in its Answer Brief attempts to rely upon Ms. Champion’s testimony that the person she spoke to on the phone indicated that there was a process that was not difficult for defense attorneys to obtain access to the information. Answer Brief at 34 n.14. However, this testimony was struck as hearsay. The State description of the hearsay objection as "tardy" is similar to the State’s continual reference to an "untimely" Notice of Appeal. The court spoke and disagreed. The testimony was stricken by the circuit court. The State has not cross-appealed. Thus, there was no admissible evidence that a defense attorney could have obtained the address for Mr. Lestz. Certainly had the evidence not been stricken by the circuit court, Mr. Swafford had ample evidence to present in rebuttal that this statement was not true. This evidence was not presented because in fact the testimony was stricken.

The State also cites Ms. Champion’s testimony that she spoke over the phone with someone from Global Tracing, who confirmed that as early as 1990 Global was hired to try to find Mr. Lestz. (PC-R4T. 594). However, the State fails to acknowledge that Global was unable to locate Mr. Lestz until 1994, even though the undisputed evidence was that Global did not get paid until it was successful in locating the individual it was hired to find. (PC-R4T. 421)("if Global found someone, they would call us back and say they found so-and-so and they would send us a bill a couple weeks later. If they didn’t find anyone, then they would just call us that they didn’t find anybody.").

The State in its Answer Brief refuses to address the arguments Mr. Swafford raised in the Initial Brief in the order in which they were raised because according to the State most of the issues raised by Mr. Swafford were not "authorized" by this Court in its opinion remanding for an evidentiary hearing. The State’s position in this regard can be characterized as simply wrong. The State’s position is an effort to slice and dice Mr. Swafford’s compelling claims of innocence into something that the State’s representative hopes can be swept under the rug.

When this Court issued its opinion remanding this case for evidentiary hearing it obviously did not address matters that had not yet arisen. In essence, the State’s position is errors that occur during proceedings that are a result of remand by this Court cannot be presented to this Court once the remand is over, even if the errors are constitutional in nature or go to the fairness of the process. Apparently, this is a proposed new rule of law as is obvious from the State’s failure to cite a case in support of its argument. The absurdity of the rule is inherent on its face. The absence of a case support is quite telling. Moreover, there are many cases wherein this Court has remanded for an evidentiary, resentencing or retrial and on a subsequent appeal considered matters that arose during the subsequent proceedings which had not been addresses in the original opinion remanding. See Jones (Ronnie) v. State, ___ So. 2d ___, Case No. 91,014 (Fla. June 17, 1999)(reversing for error occurring during remand which had not been addressed in this Court’s prior order remanding Jones v. State, 478 So. 2d 346 (Fla. 1985)); Jones (Leo) v. State, 701 So. 2d 76 (Fla. 1997)(this Court addressed and decided procedural issues which arose during proceedings ordered by this Court in a prior opinion); Hoffman v. State, 613 So. 2d 405 (Fla. 1992)(while reversing proceedings from earlier remand for failure to comply with prior order, this Court addressed matters which arose on remand outside scope of prior opinion); Jennings v. State, 473 So. 2d 204 (Fla. 1985)(a second retrial ordered on grounds not addressed in first opinion ordering retrial).

Accordingly, Mr. Swafford will address the argument in the order he presented them in his Initial Brief.

Mr. Swafford presented in his Initial Brief his claim that the State violated its obligation under Brady when it represented to collateral and the courts in 1990 that "James Michael Walsh, Walter Levi, and Michael Lestz were thoroughly investigated and discarded as suspects." (Response dated 10/22/90). After this Response with this representation was filed, the State disclosed in excess of one thousand additional pages of 119 records on October 24, 1990. (PC-R1. 455). Included in the 119 records was the January 31, 1983 report concerning an interview of Mr. Lestz conducted January 26, 1983. This report was the last report in sequence concerning Walsh, Lestz or Levi that was disclosed. It ended with the notation "Further investigation is to follow." (Def. Exh. 5 at 4). At no time prior to February 7, 1997, did the State reveal that in fact this "[f]urther investigation" did not occur.

The State argues in its answer Brief that the proper test is the four prong test in United States v. Arnold, 117 F. 3d 1308 (11^th Cir 1997). However, the United States Supreme Court has most recently ruled and stated:

Strickler v. Greene, 65 Crim. L. Rptr. at 368-69. Clearly, the United States Supreme Court’s enunciation of the proper test is controlling.

The State asserts Swafford has not alleged, nor shown, that the failure to interview Mr. Levi for a third time constitutes ‘evidence’ within the meaning of Brady." Answer Brief at 61. First, the State mischaracterizes the nondisclosure as being simply a failure to disclose that Levi was not interviewed a third time. In fact, the nondisclosure was the failure to disclose that the "[f]ollow up investigation" which was "to follow" did not occur. This constituted impeachment of the police investigation and of the representation in court that Walsh, Levi and Lestz were thoroughly investigated and discarded as suspects.

The State in its argument neglects to discuss the passage from Kyles v. Whitley, 115 S.Ct. 1555, 1572 (1995), quoted in the Initial Brief at page 45. In Kyles, the United States Supreme Court specifically indicated that information impeaching "the reliability of the investigation" was evidence favorable to the accused within the meaning of Brady.

Further, the evidence would have significantly helped Mr. Swafford in 1990. Mr. Swafford was led to believe in 1990 that he had received everything, just as Mr. Strickler’s counsel was led to believe in Strickler v. Greene. According to the United States Supreme Court,

65 Crim. L. Rptr. at 369. Had collateral counsel known that a thorough investigation had not occurred, he would have presented that fact to this Court. This Court would have then known that in fact Walsh, Lestz and Levi were not dead leads, and the result would have been different. An evidentiary hearing would have been ordered.

As to the second element identified in Strickler, the United States Supreme Court found the element in Strickler satisfied because "there is no dispute about the fact that [at least five documents] were known to the State but not disclosed to trial counsel." 65 Crim. L. Rptr. at 369. Here, there is no dispute that trial counsel did not know about Walsh, Lestz and Levi and that collateral counsel did not know that the further investigation that was to follow never occurred.

The State in is Answer Brief in its haste to avoid discussing Brady and/or Kyles never actually argues that the trial prosecutor’s pretrial discussion with Mr. Swafford’s trial counsel, Ray Cass about other suspects who had been ruled out insulates the State from a Brady violation. In any event, Strickler specifically establishes that: "In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.’ Kyles, 514 U.S. at 437." Strickler, 65 Crim. L. Rptr. at 368. Here, the trial prosecutor did not perform his duty to learn and disclose the Brady material. He in fact affirmatively represented that he had performed his duty and that there was no exculpatory evidence.

As to the third component, the cumulative consideration was never conducted. The State in its Answer Brief does not bother to address the matter except for the following cursory analysis: "Further, even had all of the allegedly exculpatory evidence and information been heard, it would have made no difference in the outcome of the trial. The evidence of Swafford’s guilt was, and is, overwhelming! See supra text, at 55-56." The text of pages 55-56 contains a discussion of a little over page in length which purports to be a summary of the trial evidence; but, it contains not one single record cite. By citing simply to an unverifiable rendition of the evidence at trial, the State is ignoring Kyles, as quoted by this Court in Young:

Young, Slip Op. at 9, quoting Kyles. Thus, the proper analysis requires that the discussion focus on the undisclosed and unpresented exculpatory evidence.

Since the State never addresses the proper cumulative analysis required in Kyles which was set forth in the Initial Brief, Mr. Swafford continues to rely upon that which was set forth therein. Under the proper analysis which was set forth in Argument II of the Initial Brief (pages 61-72), confidence must be undermined in the reliability of the outcome. Thus, a new trial is warranted.

As set forth in Mr. Swafford’s Initial Brief, Argument II is Mr. Swafford’s challenge to the analysis actually conducted by the circuit court. The State in its Answer Brief shears Mr. Swafford’s argument of any Brady component by arguing that such a claim is procedural barred by this Court’s prior opinions finding confidence not undermined in the reliability of the outcome. Once the State has shorn Argument II of its Brady component, it treats what is left (of course an entirely different argument) in what it calls the "authorized issue." See Summary of the Argument in the Answer Brief at 36, and Argument at 39-59.

However, the State’s argument that the Brady component must be procedurally barred and not considered is wrong according to this Court’s most recent pronouncement in this area. Lightbourne v. State. The State in the "authorized" argument section of its Answer Brief justifies the shearing off of the Brady component of Mr. Swafford’s claim in the following fashion:

Answer Brief at 48 n.19.

This Court never indicated in Mills v. State, 684 So. 2d 801 (Fla. 1996), that it was overturning Gunsby. Moreover, this Court in Jones v. State, 709 So. 2d 512 (Fla. 1998), and reaffirmed in Lightbourne, made it clear that the cumulative analysis discussed in Gunsby is in fact the legally required analysis where a Brady claim and a newly discovered evidence claim are both presented. The State’s effort to distinguish Gunsby away must fail. Even under the State’s logic (the last pronouncement of this Court controls), the State’s position fails. The most recent pronouncement is now Lightbourne v. State.

This Court in Lightbourne held that a cumulative analysis of Mr. Lightbourne’s Brady claim and his newly discovered evidence was required. This was true even thought this Court noted that Mr. Lightbourne had first presented a Brady claim years before. See Lightbourne v. Dugger, 549 So. 2d 1364, 1367 (Fla. 1989). In fact in Lightbourne, the Brady claim presented in 1989 was "based on the State’s failure to disclose that police had engaged in a scheme with Chavers and Carson to elicit incriminating statements from Lightbourne." Slip Op at 8. The Brady claim presented in 1994 was supported by evidence not previously available ("the State committed a Brady violation in withholding evidence that Chavers’ and Carson’s testimony was false and elicited in violation of Henry". Slip Op. at 19). This Court’s decision in Lightbourne is certainly a repudiation of the State’s argument here.

Mr. Swafford presented a Brady claim in 1990. He subsequently located witnesses identified in the undisclosed exculpatory evidence which established prejudice from the Brady violation–-a prerequisite for relief. This is nearly identical to the situation in Lightbourne. In Lightbourne, this Court required merits consideration of the Brady claim based upon this court’s determination that due diligence had been established. However here in Mr. Swafford’s case, there is an additional component: newly disclosed evidence that the State breached its ongoing obligation to disclose exculpatory evidence. See Argument I. The State did not disclose until February 7, 1997 that the "further investigation" that was to follow into Walsh, Lestz and Levi did not occur. This definitely impeached the State’s representations to collateral counsel and this Court in 1990 that those three had been thoroughly investigated and discarded as suspects. See Argument I. This could not have been discovered any sooner because the State despite its obligation to disclose did not disclose this evidence. Accordingly, the merits of this claim are before this Court. Under Lightbourne, a cumulative analysis of the prejudice component was required. This analysis was not conducted by the circuit court. The State does not even argue that the circuit court conducted a Kyles cumulative analysis. Error occurred.

As for the State’s argument that collateral counsel did not employ due diligence in their search for Lestz and Levi. Again, Lightbourne has decided the issue adversely to the State. First, the previously undisclosed Brady violation as discussed in Argument I must be before the Court on the merits, and the required cumulative consideration defeats any procedural bar argument. This is inherently reasonable since it is the State’s tardy disclosure in 1997 that has created the delay in getting the issue before this Court.

Second, this Court in Lightbourne made clear that due diligence does not require perfection nor 20/20 foresight. When a witness’ name has been disclosed as a person who may possess evidence which could lead to or support a post-conviction claim, all this Court requires is evidence that collateral counsel "had been actively looking for [the witness]." Slip Op. at 18. Here, the State’s own evidence in circuit court was that in 1990 CCR began looking for Mr. Lestz by hiring Global Tracing. This was due diligence, particular in a case where the State was adamantly maintaining that the witness was dead lead who possess no exculpatory evidence.

Finally, the State in addressing its "authorized" issue discusses Mr. Lestz’ testimony in the following fashion:

Answer Brief at 53. The State completely overlooks the testimony that the State elicited from Mr. Lestz in its cross-examination: "I did not go in the [Shingle Shack] with him. I dropped him off in the van and he went in and came back out and like I was saying, I don’t know what went on in there." (PC-R4T. 123). Thus, Mr. Lestz did testify that he drove Walsh to the Shingle Shack on the evening of February 14, 1982, while Walsh was attempting to unload two .38's ("that was during that time period"). (PC-R4T. 123).

The State also overlooks the significance of this testimony in relation to Mr. Swafford’s trial. In his closing argument, the trial prosecutor recognized that there was a problem with the testimony from Mr. Griswold (the bouncer from the Shingle Shack who recovered the murder weapon from the trash can in the men’s room) and Ms. Sarniak (the waitress from the Shingle Shack who identified Mr. Swafford and recalled standing watch at the women’s room door while Mr. Swafford placed a gun in the women’s room trash can). So the trial prosecutor argued: "What is important on the Shingle Shack episode where the gun was recovered is, one, there was a gun recovered, and the gun is the one which was identified here by the serial numbers by the police officers and placed in the records." (R. 1393). Later, he called the matter "a red herring run before your path here today." (R. 1394). He wrote off the contradictory testimony saying: "The only person that had any reason to throw away that gun was the person that the police were after, the person that the police suspected. They were after Mr. Swafford. He was the only one that they were after. Is a man just going to throw away a gun when there is nobody questioning him and it doesn't even appear to be similar to anything?" (R. 1394).

Of course the jury did not know that on February 14, 1982, Mr. Walsh told Mr. Lestz to drive around the Daytona Beach area so that he could find a place to unload two .38's. This was the same Mr. Walsh who had dropped Mr. Lestz off at a laundromat a block away from the Fina station fifteen minutes before Brenda Rucker disappeared. This same Mr. Walsh whose whereabouts were unaccounted for until four hours later when he showed back up at the laundromat nervous and sweaty. This information was contained in a police report that was not received by defense counsel and would have provided an answer to the prosecutor's otherwise rhetorical question. Under Kyles and Lightbourne, the focus is the possible effect on the jury of the previously unknown exculpatory evidence. The United States Supreme Court explained in Kyles:

115 S. Ct. at 1573 n. 19 (citation omitted)(emphasis added). Here then the issue is not whether Judge Hutcheson found Mr. Lestz credible, but whether confidence is undermined in the outcome of the trial where the jury did not hear the evidence which would have answered the trial prosecutor’s otherwise rhetorical question which was offered to dispose of Mr. Swafford’s claim that there were two different guns at the Shingle Shack. Confidence must be undermined in the outcome when the proper cumulative analysis is employed, and Mr. Swafford continues to rely upon the cumulative analysis which is set forth in the Initial Brief as the proper analysis.

Contrary to the State’s argument, Mr. Swafford offered the Overton Commission Report and the Shevin Report under section 90.203. The circuit court gave the State ample time in circuit court to consider the reports and make any objection that it wished. The State objected on only three grounds: relevancy, hearsay, and authentication. The circuit court sustained the objection on the authentication grounds. When collateral counsel sought to explain that the judicial notice provisions precluded such a ruling, counsel was cut off and precluded from making a record.

The State’s argument in its Answer Brief regarding authentication is simply not applicable under the judicial notice provisions. The State cites no authority for its position. Certainly, the statute does not provide a basis for objecting on authentication grounds.

The State’s claim that there is no evidence that the Overton Commission Report or the Shevin Report were official actions is absurd. Surely, the fact that this Court ordered the reports prepared and submitted to the Court accounts for something.

The State hearsay argument is equally silly. The conclusions and findings in those reports are no more hearsay than is the opinion of any court making legal and factual determinations.

Finally, the State’s most vociferously pressed argument below (relevancy) seems now to have been abandoned in favor of exactly the opposite argument (cumulative). However, that argument makes no sense either since the circuit court did not find diligence. Evidence can only be cumulative where it is being sought to be introduced to establish a point already proven.

As already explained, Lightbourne v. State is virtually on point and establishes that Mr. Swafford’s collateral counsel did exercise due diligence in their efforts to locate Mr. Lestz.

The State also argues that trial counsel did not exercise due diligence when he accepted the trial prosecutor’s representation that all exculpatory evidence had been disclosed. This argument was squarely rejected by the United States Supreme Court in Strickler. The prosecutor cannot transfer his obligation to make a search for and disclose exculpatory evidence to defense counsel by representing that he has fulfilled his obligation and offering defense counsel an opportunity to double check. If defense counsel cannot rely upon the prosecutor to have fulfilled his obligation, then there is no real prosecutorial obligation.

Further, the State never proved that the Walsh, Lestz and Levi materials were in the trial prosecutor’s possession or in the boxes that he offered to give trial counsel access to. The State did not call the trial prosecutor as a witness at the evidentiary hearing below. Moreover, the 119 materials disclosed in this Court did not show that the State Attorney’s Office possessed the Walsh, Lestz or Levi materials.

Finally, if trial counsel did not exercise due diligence in taking the prosecutor up on the offer to let him double check the prosecutor’s determination that there was no exculpatory evidence in the boxes in the prosecutor’s office, then his performance was unreasonable and thus deficient. This Court has already so held. State v. Gunsby, 670 So. 2d 920 (Fla. 1996). Accordingly, relief is still warranted because cumulative consideration of all the undiscovered or undisclosed evidence must undermine confidence in the outcome of the trial where the jury did not hear the wealth of exculpatory evidence which has been uncovered in post-conviction proceedings.

For the reasons stated herein and in the Initial Brief, Mr. Swafford in entitled to a new trial. Exculpatory evidence implicating Micheal Walsh as the person who killed Brenda Rucker was not disclosed by the State. The evidence implicating Walsh in the murder would certainly have been sufficient to support a conviction of Walsh the crime. Its nondisclosure clearly undermines confidence in the guilty verdict returned against Mr. Swafford.

I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on July 21, 1999.

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

9701 Shore Rd. Apt 1-D

Brooklyn, NY 11209

(718) 748-2332

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL

COUNSEL-SOUTH

1444 Biscayne Blvd.

Miami, FL 33132

(305) 377-7580

COUNSEL FOR APPELLANT

Copies furnished to:

Judy Taylor Rush

Assistant Attorney General

Department of Legal Affairs

444 Seabreeze Boulevard, Suite 500

Daytona Beach, Florida 32114