MOTION FOR DNA TESTING - WAYNE TOMPKINS

http://www.oranous.com/innocence/WayneTompkins/Tompkins-CC-MotionForDNA12-1-08.pdf

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 84-CF-010538 STATE OF FLORIDA,

Plaintiff,

v. WAYNE TOMPKINS, Defendant. __________________________/

MOTION FOR DNA TESTING
Pursuant to Fla. R. Crim. P. 3.853, WAYNE TOMPKINS, Defendant in the above-captioned action, respectfully requests this Court to order DNA testing of biological evidence collected and maintained by law enforcement in connection with the State’s prosecution of Mr. Tompkins in the above-entitled matter. Mr. Tompkins has always maintained his innocence, and the requested DNA analysis may provide the evidence that will exonerate him. The grounds for this motion are more fully set forth below.

PROCEDURAL HISTORY

Mr. Tompkins was indicted for first-degree murder and pled not guilty. Trial commenced September 16, 1983, and a jury found him guilty (R. 401). Following a penalty phase, the jury recommended the death penalty, and the judge immediately imposed a sentence of death (R. 678-81). The conviction and sentence were affirmed. Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied, 483 U.S. 1033 (1987). After a death warrant was signed, a motion to vacate was

filed and an evidentiary hearing was conducted. Though this Court found trial counsel’s performance was deficient, post-conviction relief was denied. The Florida Supreme Court stayed the execution and later affirmed the denial of collateral relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989). After a second death warrant was signed, a federal habeas petition was filed, and the federal district court stayed the execution. An amended petition was subsequently filed, and denied. On appeal, the Eleventh Circuit affirmed. Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999), cert. denied, 121 S.Ct. 149 (2000).

In March of 2001, a third death warrant was signed. Thereafter, Mr. Tompkins filed a second motion to vacate in which he challenged his conviction and sentence of death. This Court summarily denied guilt phase relief, but granted an evidentiary hearing on Mr. Tompkins’ challenge to his death sentence. At the conclusion of the hearing, this Court vacated Mr. Tompkins’ sentence of death and granted a resentencing. Both parties appealed. The Florida Supreme Court reversed this Court’s order granting a resentencing and affirmed the denial of guilt phase relief. Tompkins v. State, 872 So. 2d 230 (Fla. 2003). In its on October 9, 2003, opinion, the Florida Supreme Court stated: “Based on the foregoing, we affirm the trial court’s summary denials of Tompkins’ Brady claims and affirm the trial court’s denial of Tompkins motion for DNA testing and motion to compel the production of public records. However, we reverse the trial court’s order granting a new penalty phase trial and reinstate the death sentence.”

While that appeal was pending, Mr. Tompkins filed another Rule 3.850

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motion with this Court. This Court dismissed the motion finding that it lacked jurisdiction during the pendency of the previous appeal. Mr. Tompkins appealed. The Florida Supreme Court affirmed, but granted Mr. Tompkins “60 days to refile his successive postconviction motion nunc pro tunc to February 5, 2003, the date the prior motion was filed in the trial court.” Tompkins v. State, 894 So. 2d 857 (Fla. 2005). Thereafter, Mr. Tompkins refiled his 3.850 motion. This Court denied the motion and Mr. Tompkins appealed to the Florida Supreme Court. On May 10, 2007, the Florida Supreme Court issued an opinion affirming the of 3.850 relief. Mr. Tompkins filed a motion for rehearing which was denied on July 16, 2007. The mandate issued returning jurisdiction to this Court on August 2, 2007.

On August 16, 2007, Mr. Tompkins filed another motion to vacate. Ultimately, this Court summarily denied the motion and Mr. Tompkins appealed.

While that appeal was pending, the Governor rescheduled Mr. Tompkins’ execution for October 28, 2008. The Florida Supreme Court issued a stay and gave Mr. Tompkins until October 15, 2008, to file any additional motions seeking collateral relief in this Court. Mr. Tompkins filed another motion to vacate which this Court summarily denied on October 21, 2008. Mr. Tompkins appealed.

The Florida Supreme Court ordered expedited briefing in both pending appeals. After Mr. Tompkins had submitted his reply briefs, the State disclosed a new sworn statement from Kenneth Turco. See Attachment A. The disclosure was made on October 30, 2008. Mr. Turco had gave the sworn statement to an assistant state attorney on October 28, 2008.

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After receiving the statement on October 30 , Mr. Tompkins filed a motion

to relinquish jurisdiction with the Florida Supreme Court on November 3, 2008.

Thereafter, the Florida Supreme Court issued an order on November 4, 2008,

denying the motion to relinquish. On November 7, 2008, the Florida Supreme

Court issued its opinion affirming the summary denial of Mr. Tompkins requests

for collateral relief. Tompkins v. State, — So. 2d — (Fla. November 7, 2008).

ARGUMENT I

Fla. R. Crim. P. 3.853 implements section 925.11, Florida Statutes, which

provides for postconviction DNA testing. See In Re Amendment to Florida Rules

of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633 (Fla.

2001). This rule requires that the motion be made under oath and include:

(1) A statement of the facts relied upon in support of themotion, including a description of the physical evidencecontaining DNA to be tested and, if known, the presentlocation or last known location of the evidence and how it originally was obtained (Fla. R. Crim. P. 3.853(b)(1)); (2) A statement that the evidence was not previously testedfor DNA, or a statement that the results of previous DNAtesting were inconclusive and that subsequent scientificdevelopments in DNA testing techniques likely would producea definitive result establishing that the movant is not the personwho committed the crime (Fla. R. Crim. P. 3.853(b)(2)); (3) A statement that the movant is innocent and how the DNA testing requested by the motion will exonerate themovant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentencereceived by the movant for that crime (Fla. R. Crim. P.3.853(b)(3)); (4) A statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an 4

explanation of how the DNA evidence would either exoneratethe defendant or mitigate the sentence that the movant received(Fla. R. Crim. P. 3.853(b)(4));

(5) A statement of any other facts relevant to the motion(Fla. R. Crim. P. 3.853(b)(5)); (6) A certificate that a copy of the motion has been servedon the prosecuting authority (Fla. R. Crim. P. 3.853(b)(6)). This motion will address each of the above requirements in turn.

A. Statement of Facts Relied on in the Motion, Description of the Evidence to be Tested, and Last Known Location of the Evidence. (Fla. R. Crim. P. 3.853 (b)(1)). 1. Statement of Facts On March 23, 1983, Lisa DeCarr and Kathy Stevens were expelled from school after they were discovered smoking under a tree. Lisa and Kathy were in special classes for emotional troubled students. Pot was found in Kathy’s purse. Lisa was told that she could not return until she was accompanied by a parent.

On the afternoon of the next day, March 24, 1983, Lisa’s mother contacted the police and filed a missing persons report. That police report is a two-page report dated March 24, 1983 at 5:30 PM.1 The first page lists the complainant, the date and the time of the incident being reported. The “Date Time Occurred” showed “24 Mar 83 1330-1400". The report listed Barbara DeCarr as the complainant/parent. On the first page of the report in the reconstruction section was handwritten, “Mrs. DeCarr stated her daughter ran away from home for no

1It is clear from the police report that Mrs. DeCarr reported Lisa missing withina couple of hours after she was last seen getting into a car. It is also clear from the police report that Mrs. DeCarr was aware of “some trouble in school.”

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apparent reason.” The second page of the report listed Wendy Chancey as a witness. The report then contained the following in the narrative section:

Compl. stated she last saw Lisa at the listed residence at the listedtime. Compl. stated that everything was fine at home and has had notrouble with Lisa running away or anything. Compl. stated that Lisawas having some trouble in school but nothing to cause her to runaway. Compl. checked was Lisa’s friends and school forinformation as to where she might be with negative results. Compl.stated that one of Lisa’s friends told her that Lisa asked about Beach Place, but Compl. checked with Beach Place with negative results. Compl. stated Lisa did not take any of her belongings and gave noindication of wanting to leave.

The report showed the “listed time” as 1:30-2:00 on March 24, 1983. The “listed residence” was shown as 1225 E. Osborne St. According to the report, Mrs. DeCarr last saw her daughter, Lisa, at 1:30-2:00 PM on March 24, 1983.2 The report further indicated that a witness, Wendy Chancey, stated “she observed Lisa get into the suspect vehicle at 12th St. And Oasborne and was last seen heading north on 12th St.” The two-page police report indicated that Lisa was wearing “blue jeans, maroon shirt, diamond ring, cross earrings.” Implicit in the report was the fact that this was the attire Lisa was wearing at the time she was last seen by the complainant, Barbara DeCarr, when she saw Lisa at 1:30-2:00 PM.

For over a year, Mrs. DeCarr maintained that Lisa had runaway. This was documented by numerous police reports.3 Det. Gullo logged calls from Mrs.

2Since she was making representations to the police while filing a missingpersons report, presumably she subjected herself to prosecution if the police reportwas false. Kist v. State, 787 So. 2d 106 (Fla. 2nd DCA 2001).

3School records reveal that there was a March 24th phone call with Mrs. DeCarr“who called to inform that Lisa had left.” This was the day after Lisa had been

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DeCarr reporting that others claimed to have sighted Lisa. But, Mrs. DeCarr did not a name for any of the people she said had told her they had seen Lisa after her disappearance. For example, the September 2, 1983 entry stated:

I received a phone call from Mrs. DeCarr who stated that she was toldby friends of Lisa that they had seen Lisa on East 7th Ave. at about46th St. Lisa was standing in the Jewel “T” parking lot speaking withtwo or three other w/f’s. The informants told Mrs. DeCarr that Lisa might be living in a trailer park which is across the street. Mrs. DeCarr told the informants that they should call the police the nexttime they see her. Mrs. DeCarr was advised that they didn’t want toget involved with the police.

The only name Mrs. DeCarr supplied Det. Gullo was when she indicated Kathy Stevens had reported that Lisa had called from New York. Yet when providing that information, Mrs. DeCarr misreported Kathy’s last name. She said Kathy’s last name was Sample. As a result, Det. Gullo did not locate Kathy.

When she testified at trial, Mrs. DeCarr denied practicing witchcraft: “I am a Catholic.” (Id.) In her deposition, Barbara said her daughter would be lying if she had said that Barbara had engaged in sex acts with “little boys” (DeCarr depo. at 65). At trial, Judge Coe refused to allow Mrs. DeCarr to be asked about her sexual relationships with 12 and 13 year old boys (R. 235).4

expelled and told that she could not return until she brought a parent. The records show that on March 25th, “mom says child ran away yesterday (24th). Thinkschild may be pregnant.” Records from the Missing Child Organization showedthat Barbara called on March 29, 1983, and reported Lisa as missing - “She maybe on drugs and she may be pregnant.” Mrs. DeCarr first mentioned a possiblepregnancy to Det. Gullo, the policeman looking for Lisa, on April 26 th.

4Det. Burke’s report of June 22, 1984, noted that “Jenice DeCarr who is, the

stepdaughter of Barbara DeCarr” stated, “that Barbara DeCarr was heavily intoWitchcraft and while living in New York, Barbara participated in witchcraft to a

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In May of 1984 while she was voluntarily committed in a mental hospital,

Mrs. DeCarr contacted Donald Snell.5 He testified at trial that he met Mrs. DeCarr

in May, 1984 (R. 123-24). Snell headed a volunteer group that located missing

children, and employed the services of a psychic to do so (R. 124). A second

meeting occurred in early June of 1984, when Mrs. DeCarr assigned him power of

attorney to search for Lisa (R. 129). On or around June 6, 1984, Snell’s

organization conducted a search of Barbara’s former house (R. 130-31).6 Snell

recounted that “the house was raised in the front part” and when they looked under

it, “we could see a depression which we were sure was a grave.” When someone

reached under the house, “the earth gave way” and “saw the bones” (R. 132). The

great extent.” Jenice also said “that her brother Harold DeCarr, Jr. was seduced byBarbara when he was 12 yrs. old.” Det. Burke noted that “this was confirmed byHarold as we were on a three party telephone conversation at the time. He stated that he was in fact, 12 yrs old when this took place.” Michelle Hayes, “the sisterto Lisa DeCarr and the daughter of Mrs. DeCarr,” made similar statements. Michelle “stated she knew of one time that her mother had at least three or four young boys in her bedroom locked up with her ranging from ages 12 to 14 yrs andthat she knew that there was sex acts going on and that one of the subjs that was inthe bedroom with her mother was Harold, Jr., her stepbrother. She stated that she is certain that they were involved in some type of sex act with their mother. She said it got so bad, that the 12 and 14 yrs old boys would get in a fight over whowas to have her mother’s affections.”

5In the period between March, 1982, to June, 1984, Mrs. DeCarr had three otherboyfriends besides Wayne Tompkins (R. 227). As to one, Gary Francis, shedenied that she moved out of the trailer park because Gary had harmed Lisa (Id.).But Mrs. DeCarr did confirm that a man named Bob McElvin had propositionedLisa, saying he would do “certain things for her for sexual favors” (Id.).

Mrs. DeCarr found out in the spring of 1984 that Mr. Tompkins had sexwith another woman. However, in her testimony, she denied that she was angryover Mr. Tompkins’ affair with another woman (R. 237).

6Mrs. DeCarr and her family moved from that residence over a year before,weeks after Lisa disappeared.

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depression was “on the right hand side under the front part, the front section, what

was the porch” and was about “two to three feet under the house” (R. 133; 135).

The police were then contacted (R. 135).7 Snell did not know if Barbara knew

where the body was before he went there, but “just didn't believe that she was

telling me the whole truth” (R. 138; 40).

After the body was found, Mrs. DeCarr told the police that Wayne

Tompkins, her ex-boyfriend, was the last person to see Lisa alive on the morning

of March 24, 1983, the day she disappeared. Based upon Mrs. DeCarr’s claims

and the discovery of the body, Mr. Tompkins was indicted. In early 1985, Mrs.

DeCarr was deposed by Mr. Tompkins’ counsel. Immediately afterwards, the

prosecutor began looking for more evidence or another witness. He contacted

Kathy Stevens in March of 1985.8 At first she maintained that her statements to

7Tampa Police Department Sergeant Rademaker testified that Mrs. DeCarr told him that she believed the body “was someplace on the property and possibly underthe house” (R. 170); even though this interview was conducted after the discoveryof the body, “we didn’t tell her during the interview. We didn’t tell her until after we were sure what we had” (Id.).

The medical examiner identified the body as being Lisa based uponinformation received from Mrs. DeCarr. The trial prosecutor testified in 1989 that“[o]ther than Mrs. DeCarr’s description of the strange tooth in her daughter’smouth” there was no basis for the dental identification (PC-R. 233). There was no way to determine how long the body had been in the grave, and that it is possible itcould have been as little as six or seven months prior to June, 1984 (R. 191).

8Benito first called Kathy Stevens on March 7, 1985. This was two days after Barbara DeCarr’s March 5th deposition in which she indicated she went to Mr.Tompkins’ mother’s house at “approximately 9:00 am.” (DeCarr depo. at 16). In her undated statement, she further indicated that Mr. Tompkins had already arrivedat his mother’s house and “stayed at his mother’s house until approximately 10:00am when he left to get some newspapers to pack dishes with.” In her deposition,she indicated Mr. Tompkins “could have been” gone “[t]wenty minutes, half an

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school officials were true, that Lisa had runaway to New York and kept in touch

with Kathy. A couple of days after meeting the prosecutor, she re-contacted him.

After she was given authorization to visit a boyfriend who was incarcerated, she

changed her story and claimed witnessing Lisa being strangled by Mr. Tompkins

on the morning of March 24, 1983, at around 8:30 AM.9

Thereafter, Kenneth Turco surfaced, claiming that Mr. Tompkins had

confessed the murder.10 Mr. Turco’s testimony so aligned with Kathy Stevens’

hour.” (DeCarr depo. at 20). He subsequently left again with his stefather (DeCarr depo. at 21).

9Kathy’s new version of the facts began with her sneaking into Lisa’s bedroomwindow at 6:30 AM on March 24 th. She and Lisa were planning to run away after getting in trouble at school. In the early morning meeting, Kathy said that Lisasaid she was not running away after all. So Kathy left. When she noticed that she left her purse and had to go back to get it. When she got there at around 8:30 AM, the front door was open. She went in and saw Mr. Tompkins strangling Lisa. Lisa called out for her to call the police. But instead, she went the nearby store and ran into Lisa’s boyfriend, Junior Davis. When she told him what she had just seen, he was unconcerned. So, Kathy went to school. At trial, Kathy said she went backlater to get her purse with her girlfriend, Kim Lisenby. It was then Kim who knocked at the door, not Kathy, and may have spoken with Mr. Tompkins.

In her deposition, Kathy gave a different version. Then she said that Kim Lisenby was with her when she saw Lisa being strangled. After Lisa told her to call the police, she “grabbed [her] purse and [ ] left.” (Stevens depo. at 10) “I shut the door. And I told Kim, I said, ‘Come on, Kim we got to call the police.’ She said, ‘Don’t get involved.’ And I said, ‘Why?’ And she said, ‘Because you don’t need to.’ And I said, ‘Okay.’ And I went to the store and that’s when I ran into Junior.” In her deposition, Kathy indicated that she “grabbed her purse” when sheleft at 8:00 am. (Stevens depo at 10). She also indicated that after she talked to Junior, “me and [Kim] went back to the school. I cleaned out my locker, and Iwent to my stepmother’s and sat on her porch until she got back. And then I met Kim at school at 2:00 o’clock. And she cut class. And we went to go check on Lisa” (Stevens depo. at 14). “It takes about twenty minutes to get from the school to her house. It was about 2:20, 2:30, something like that”

10Kathy Stevens’ deposition occurred on June 12, 1985. Kenneth Turco’s deposition occurred on July 15, 1985. At that time, he said that in late June, 1985,

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story that defense counsel argued that the informant had obtained access to Ms.

Stevens’ deposition or statement and used it to mold his testimony.11

After Kathy Stevens report that she witnessed Mr. Tompkins’ strangling

Lisa at around 8:30 AM, Mrs. DeCarr was able to remember that contrary to her

earlier statements that she had left home before 8:30 AM, and Mr. Tompkins was

still there, as was Lisa. Previously, her recollection was that Mr. Tompkins left to

take one of her sons to school and wasn’t home when she left after 9:00 AM.12

he first talked to Wayne Tompkins about his case, and that about a week and a halfbefore the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).

11Kenneth Turco while serving a 30 year prison sentence for burglary and grandtheft escaped (R. 301-02). While serving his time, Turco had been a confidential informant in prison and received consideration (R. 317). After Turco entered a guilty plea to a felony escape charge in “June, I think, or maybe the end of May”

(R. 315), he was placed in a two man cell with Mr. Tompkins. His placement in jail cell with Mr. Tompkins occurred in June of 1985. He had just entered the guilty plea on an escape charge (R. 303). He was waiting to be sentenced (R. 304). While in the jail, he made contact with Wayne Tompkins after he “wasplaced in the cell with him” (R. 305). After his contact with Mr. Tompkins, Turcopersonally contacted prosecutor Benito, who visited him and promised only “mysafety in the jail and that [he] would tell the judge at my sentencing hearing that Icooperated and I came forward and testified in a murder trial” (R. 311).Turco testified that he was not hopeful that his testimony would help him onthe escape sentence because he would still be doing time anyway (R. 315). However, it had crossed his mind that his testimony would help him (Id.).

In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney, testified that hetook over Turco’s prosecution two weeks after Wayne Tompkins’ sentence ofdeath. He explained, “I walked down to court. I was about to offer Mr. Turco a negotiation. I got in here and I looked at Mr. Turco and I said, ‘This guy showed alot of guts coming forward as a jailhouse informant to testify as to what Mr.Tompkins told him.’” (PC-R. 235). So, Benito “got up and walked down here andannounced the case, and said, ‘I nol-pros it.’” A grateful Turco “looked at[Benito] like he had just been handed his first bicycle at Christmas.” (PC-R. 236).

12Mrs. DeCarr’s shifting the time line of her account was necessary because herprevious story made Kathy’s story impossible (between 8:00 AM and 9:00 AM,Barbara had said she was home and Mr. Tompkins wasn’t and that he did not

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According to an undated typed statement of Mrs. DeCarr that was provided to the police before Kathy Stevens claimed to have witness Mr. Tompkins strangling Lisa, Mrs. DeCarr said, “Wayne had taken Jamie (my youngest son) to school just before 8:00 am. and then went to his mother’s house for breakfast and coffee. He stayed at his mother’s house until approximately 10:00 am. when he left to get some newspapers to pack dishes with.”

At trial,13 Wendy Chancey was unavailable and defense counsel was precluded from crossing Mrs. DeCarr regarding the statements attributed to her in the March 24, 1983, police report.14 The State’s theory of the case was outlined in its opening statement. According to the State, Mr. Tompkins and Mrs. DeCarr were a couple in March of 1983. Mr. Tompkins was living with DeCarr, along with her three children, including 15-year old Lisa (R. 107-08). On the morning of March 24, 1983, Barbara went to Mr. Tompkins’ mother’s house to help her

return to the house until after 10:00 AM, while Kathy said before going to schoolat 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa on the couch).

13Although it presented 8 witnesses at trial, the State advised the jury that “thekey testimony will come from three [] witnesses”--Barbara DeCarr (the victim'smother), Kathy Stevens (the victim’s best friend), and Kenneth Turco (thejailhouse snitch)--and that “[t]hose three will provide the overwhelming evidence”that Mr. Tompkins killed Lisa DeCarr on the morning of March 24, 1983 (R. 108).

14The jury did not learn of the information provided Mrs. DeCarr and WendyChancey to a police officer regarding what they saw of Lisa on the afternoon ofMarch 24, 1983, which was inconsistent with the testimony of Kathy Stevens,Barbara DeCarr, and Kenneth Turco. Nor did the jury learn of the information setforth in Lisa DeCarr’s school records and in police reports concerning Lisa DeCarras a missing person documenting statements by numerous people reportingsightings of contact with Lisa DeCarr after March 24, 1983, and throughout theremainder of that year.

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move; before she left home between 8:30 and 9:00 AM, she checked in on Lisa, who was in bed and wearing a pink bathrobe (R. 110). After Barbara left, Kathy arrived between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.15

During Mr. Tompkins’ trial, the prosecutor relied upon Stevens’ testimony to urge the jury to convict Mr. Tompkins, arguing, “[h]er testimony alone . . . convicts this man” (R. 346; see also R. 346-49, 360). The prosecutor relied upon Stevens’ testimony to urge the jury to recommend a death sentence (R. 444-45). Thereafter, the jury convicted and recommended a sentence of death. The trial judge relied upon Stevens’ testimony to support the “committed during a felony” aggravating circumstance (R. 679).

In the course of the collateral proceedings, withheld exculpatory evidence has surfaced, along with witnesses and documents that were not presented by the defense which demonstrated that Kathy’s story - the basis of the prosecution’s theory of the case - could have been thoroughly impeached and shown to not be true.16 For example in 2001, the State disclosed a June 8, 1984, police report

15At the 1989 hearing, the trial prosecutor, Mike Benito, confirmed that histheory was that the offense occurred on the morning of March 24th (PC-R. 87).

16In 1989, the State disclosed that it was in possession of Lisa DeCarr’s schoolrecords at the time of Mr. Tompkins’ trial. These records were not available to defense counsel since he did not have a release for the records, and because the trial prosecutor did not disclose the records. This records documented the circumstances of Lisa DeCarr’s suspension on March 23, 1983, and the numerousstatements made by Barbara DeCarr and others to school officials reporting thatLisa had runaway because she was pregnant and that various students had eitherseen or had contact with Lisa in April and May of 1983.

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concerning an interview of an individual named Maureen Sweeney taken on June 8, 1984, at 2130 hrs:

SWEENEY advised that it was very strange the explanation givensurrounding LISA'S disappearance. She advised that she was told thatLISA had come home, found Wayne sitting at the kitchen table withher mother and asked 'what the hell is he doing here!' Her mother,BARBARA, explained that he had no place to go and that she wasgoing to let him move in with them, until he could get on his feet. Atthat point LISA ran out the back door. According to MAUREEN itwas very unusual for LISA to be outside without her makeup andsupposedly she had been outside then come back inside and then goneout again without her makeup. Lisa's brother BILLY left the house to go find her and came back to take care of JAMIE.

The sequence of events that Sweeney reported is consistent with what Mrs. DeCarr had told the police on March 24, 1983, and is inconsistent with the State’s theory of the case, that murder occurred between 8:00 and 9:00 AM on March 24 th.

It was only in the post-conviction proceedings that Mr. Tompkins or his counsel learned that the prosecutor had written file memos memorializing Kathy’s statements to him when he first contacted and she changed her story. It was only after receiving this memos that Mr. Tompkins learn that Kathy Stevens, a mentally troubled teen, was given access to her incarcerated boyfriend that she had not been allowed to see only after she changed her story and incriminated Mr. Tompkins.

In 1989, Mr. Tompkins presented the testimony of Gladys Staley regarding her contact with Lisa DeCarr in the early afternoon of March 24, 1983, at Ms. Staley’s residence (PC-R. 306-07). Gladys Staley testified that she saw Lisa in the early afternoon of March 24, 1983, at around 2:30 PM and spoke to her (PC-R. 410-11). Even though Ms. Staley had advised a police officer in June of 1984 of

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her visit with Lisa DeCarr at around 2:30 PM on March 24 , the trial prosecutordid not list her as a witness (PC-R. 414).

In 1989, Mr. Tompkins also introduced an affidavit from Jerry Behringer into evidence in which he stated under oath that “Lisa is not dead. About three months after Wayne’s trial I saw Lisa at a convenience store on the corner of 15th and Hillsborough Street. I called out, ‘Lisa.’ She turned, looked directly at me, froze, and then ran down an alley behind the store. I lost her but there is not a question, whatsoever, that I personally saw Lisa DeCarr, alive.” (PC-R. 251; Def. Ex. 16; PC-R. 568). See Attachment B.

Subsequnetly, Kathy Stevens’ testimony was contradicted by “Junior” Davis, Lisa DeCarr’s boyfriend at the time of her disappearance when he was located in 2002. After years of searching and after the State finally provided previously undisclosed documents about Davis in 2001, Mr. Tompkins’ counsel located “Junior” Davis in April of 2002. “Junior” Davis’s full name is James M. Davis, Jr. Upon being contacted, Mr. Davis reported that he had been Lisa DeCarr’s boyfriend in March of 1983. In a sworn affidavit, Mr. Davis stated, “[t]he story of Kathy running into me at the store the day Lisa disappeared is not true. If anyone had told me that Wayne was attacking Lisa and she was screaming for someone to call the police, I would have gone directly there” (Affidavit of James M. Davis, Jr., paragraph 6, 4PC-R. 130). Mr. Davis elaborated:

If I thought there was anyway I could have helped [Lisa], I wouldhave, especially if she were in trouble. This is why what Kathy said is not true. I never saw Kathy on the morning that Lisa disappeared,nor did Kathy ever tell me that she had just seen Lisa being attacked

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by Wayne. In fact, the first time I heard of anything having possiblyhappened to Lisa was when I heard on the radio she was missing. (Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130). On October 30, 2008, the State disclosed a newly obtained sworn statement from Kenneth Turco. In this statement, Mr. Turco explained that the prosecutor instructed him to add the pocketbook to his testimony at Mr. Tompkins’ trial:

Well, Michael Bonito [sic] at the time of my - - prior to thetestimony, and naturally we met at the Hillsborough County jail, wentinto a little room and as I was telling him what happened he told me

- he said - - he told me, he said don’t forget the purse. She was buried with a purse. Make sure you add that in your testimony, and I did. (Turco Sworn Statement of October 28, 2008, at 5). Later, Mr. Turco explained:

Q And this thing about the purse in your deposition, yousaid that you mentioned a pocketbook or purse of something to that

effect. A The victim was buried - - Q Go ahead. A That came from Mr. Bonito [sic].

(Turco Sworn Statement of October 28, 2008, at 6). According to Mr. Turco’s sworn statement of October 28, 2008, at Mr. Benito’s instruction, Mr. Turco added untrue details to his story.17

Mr. Turco testified at Mr. Tompkins’ trial in September of 1985. Over twenty-three years later on October 30, 2008, the State disclosed a new sworn

17Certainly, Mr. Turco’s willingness to add untrue details to his testimonyexplains the prosecutor’s subsequent dismissal of charges that Mr. Turco hadalready pled guilty to.

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statement from Mr. Turco indicating that part of his trial testimony was false and that he testified falsely at the trial prosecutor’s instruction.

Mr. Turco thereupon testified that Mr. Tompkins confessed to strangling Lisa DeCarr after she rebuffed his sexual advances (R. 309). According to Mr. Turco, Mr. Tompkins indicated that he buried the body under the house. Thereupon, Mr. Turco had the following exchange with Michael Benito, the prosecuting attorney:

Q. Did he tell you he buried anything else under the house of hers? A. Yes. He said he buried some clothing to make it look like she ran away. Q. Anything else? Do you specifically recall the pocketbook? A. Yes, sir. It was a pair of jeans, a sweatshirt or a blouse, Ican’t remember exactly, but it was a top, and he did say a pocket book for sure. Q. Did he tell you where he had buried the pocketbook, thejeans and blouse? A. No, he didn’t sir. (R. 310)(emphasis added). During cross-examination, the following exchanged occurred with Mr. Tompkins’ counsel: Q. He told you that not only did he kill her but he gave youthe specifics about clothing and things of that nature that he alsoburied? A. Yes, he did, sir. 17

Q. Those would be information, matters about clothing andmatters about details you would expect to find in police reports,would you not, and depositions? A. I have no idea, sir. (R. 316). In his closing argument, the prosecutor made the pocketbook an important

feature:

It was enough time for him to plan his coverup, not enough time. He made mistakes, and the mistakes which have left a trail directly to him. And one big mistake, listen to this, one big mistake,he got rid of the pocketbook just like he told Turco he did.

Recall Barbara, when she searched Lisa’s belongings thatevening, did not find her pocketbook. We never have found the pocketbook. But what was not missing? Her wallet. Her wallet. Remember Barbara’s testimony. Her wallet was there but not her pocketbook. In his haste, in his hurrying to cover up this crime, heforgot to put the wallet in the pocketbook.

He panicked after killing her, just like he told Turco he did, and he grabbed the pocketbook, grabbed some clothes, buried them. We don’t know where. He said he buried them, but thinking thewallet was in the pocketbook, he buried them but the wallet wasn’t inthe pocketbook.

No young girl is going to run away and take her pocketbookbut leave her wallet. And, besides that, as already mentioned, noyoung girl is going to run away in her bathrobe and her pajama top.

Use your common sense. She did not run away.

The defendant told Barbara DeCarr, “Jeans and a blouse and her pocketbook, that’s what I saw her the last time wearing and carrying.”

(R. 355-56)(emphasis added). Clearly, the prosecutor used the pocketbook as an essential piece of evidence that pulled his case together and rebutted any

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contention by the defense that Lisa DeCarr had in fact run away as Mrs. DeCarr reported to the police on March 24, 1983.

Throughout the history of this case, Mr. Tompkins has maintained that he did not commit the murder for which he stands convicted. He has always maintained his innocence.

2. Description of the Evidence Mr. Tompkins seeks DNA testing of the items found at the grave site, including hair skeletal remains, robe, pajamas and miscellaneous debris. In 2001, the State asserted that the hair collected from the grave site was lost.18 However at that time counsel for the Defendant did in fact observed that the Tampa police department had collected and retained a portion of a bone removed from the grave site. Counsel also understood that the clothing found with the human remains at the grave site were still available for testing. The robe, sash, and pajamas were introduced into evidence at the time of trial and are in the possession of the clerk of court (State’s Exh. Nos. 12, 13, 19).

3. Last Known Location of Evidence to be Tested Counsel for Mr. Tompkins observed a portion of the bone removed from the grave site in the Tampa Police Department’s possession in 2001. The record in

18According to a FBI Lab Report in Mr. Tompkins’ case, several hairsdiscovered with the human remains found at 1225 Osborne Street were forwarded to the FBI for comparison. The report noted that the hairs “were suitable for possible future comparison” (R. 31-34). It was these hairs that were reported lost or misplaced in 2001. Certainly, if these hairs have since been located, Mr.Tompkins would ask that they be submitted for DNA testing as well.

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Mr. Tompkins’ case indicates that the robe, sash and pajamas found with the body

were admitted into evidence and placed in the custody of the clerk of court at the

time of Mr. Tompkins’ trial.

B. Statement that the Evidence was not Previously Tested for DNA (Fla. R.Crim. P. 3.853(b)(2)). Evidence was collected when the human remains were found in June of

1984. No DNA testing has ever been performed on any of the evidence collected

in this case. When DNA testing was requested by Mr. Tompkins in 2001 before

the adoption of Rule 3.853, this Court refused to permit it. This Court’s ruling

was affirmed on appeal. Tompkins v. State, 872 So. 2d 230 (Fla. 2003).19

C. Statement that the Movant is Innocent and Statement Explaining HowDNA Testing Would Exonerate the Movant. (Fla. R. Crim. P. 3.853(b)(3)). 19At the time of this Court’s action in 2001, the affidavit from Mr. Davis had not been obtained, nor had Mr. Turco made a sworn statement that he was told to add false details to his testimony by the prosecuting attorney. This new information warrants revisiting this matter because it impeaches the State’s case at trial,specifically the testimony of Kathy Stevens and Kenneth Turco. If the human remains found at 1225 E. Osborne Street are not those of Lisa DeCarr, Mr. Tompkins will be exonerated of her murder.

Moreover, there is considerable evidence known now, but not by the jury thatconvicted Mr. Tompkins, that Lisa DeCarr was alive after Kathy Stevens andKenneth Turco testified that she was dead. This evidence impeaching thetestimony that she was killed on the morning of March 24, 1983, would beconsistent with her not being the source of the human remains. This evidence includes school records showing reports that Lisa was alive in April of 1983,police records showing that Mrs. DeCarr advised the police throughout 1983 thatLisa had been seen alive in and around Tampa, Ms. Staley’s testimony in 1989 thatshe saw Lisa alive on the afternoon of March 24, 1983, the police reportconcerning Maureen Sweeney reporting that Mrs. DeCarr had told her that Lisawas last seen in the afternoon when she ran from the house while fighting with hermother about Mr. Tompkins moving in, and the sworn statement in 1989 fromJerry Behringer recounting his observation of Lisa DeCarr alive and well threemonths after Mr. Tompkins had been convicted and sentence to death.

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1. Statement of Innocence Mr. Tompkins pled not guilty and maintained his innocence throughout the history of this case. He continues to maintain that he is innocent today. Because Mr. Tompkins is innocent, he does not know whose remains were found under the house at 1225 E. Osborne St. In Tampa, Florida, nor how those remains came to be located there. Because Mr. Tompkins is innocent, he only knows that he did not murder Lisa DeCarr and that he did not place human remains under the house.

2. Statement Explaining How DNA Testing Will Exonerate the Movant Florida courts have interpreted the “how the DNA testing will exonerate” language in Rule 3.853 to mean that testing will be granted if the results would create a “reasonable probability that the [defendant] would have been acquitted” had these results been available at trial. Knighten v. State, 829 So.2d 249 (Fla. 2d DCA 2002); Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). As Florida courts have explained, “the purpose of the rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’” Zollman, 820 So. 2d 1059, 1062 (quoting In re Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633, 636 (Fla. 2001) (Anstead, J., concurring)). Only when the DNA testing would “shed no light on the defendant’s guilt or innocence” is such testing unwarranted by Fla. R. Crim. P.

3.853. Zollman, 820 So. 2d at 1063. 21

Here, evidence that the human remains are not those of Lisa DeCarr would mean that the State’s charge that Mr. Tompkins murdered her and place her body there on the morning of March 24, 1983, would certainly exonerate Mr. Tompkins. DNA test results from the following evidence meets the “reasonable probability” standard of Rule 3.853(b)(3) and would exonerate Wayne Tompkins as the person who murdered Lisa DeCarr. Huffman v. State, 837 So. 2d 1147, 1148 (Fla. 2nd DCA 2003).

D. Statement that Identification of the Movant is a Disputed Issue in theCase. (Fla. R. Crim. P. 3.853 (b)(4)). The identity of the murdered is a genuinely disputed issue in this case. Mr. Tompkins was arrested and charged with having been the perpetrator. Mr. Tompkins has always contended that he is innocent of the crime and did not commit the crime charged.

In 1989, Mr. Tompkins presented the testimony of Gladys Staley regarding her contact with Lisa DeCarr in the early afternoon of March 24, 1983, at Ms. Staley’s residence (PC-R. 306-07). Gladys Staley testified that she saw Lisa in the early afternoon of March 24, 1983, at around 2:30 PM and spoke to her (PC-R. 410-11). Even though Ms. Staley had advised a police officer in June of 1984 of

th

her visit with Lisa DeCarr at around 2:30 PM on March 24 , the trial prosecutordid not list her as a witness (PC-R. 414).

In 1989, Mr. Tompkins also introduced an affidavit from Jerry Behringer into evidence in which he stated under oath that “Lisa is not dead. About three months after Wayne’s trial I saw Lisa at a convenience store on the corner of 15th

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and Hillsborough Street. I called out, ‘Lisa.’ She turned, looked directly at me, froze, and then ran down an alley behind the store. I lost her but there is not a question, whatsoever, that I personally saw Lisa DeCarr, alive.” (PC-R. 251; Def. Ex. 16; PC-R. 568).

At trial, the State relied upon circumstantial evidence that the human remains were those of Lisa DeCarr as evidence identifying Mr. Tompkins as the murderer. It was essential to the State’s case that the remains were those of Lisa DeCarr in order to argue the identity of the killer as Mr. Tompkins. The purpose of the “identification” requirement is to exclude movants who assert that they performed the act in question but are, nevertheless, not culpable – such as those who assert defenses like insanity, duress, or consent as a defense to rape. In such cases, DNA testing would not show that the movant did not commit the act in question because the movant asserts that he did commit the act. Crow v. State, 866 So. 2d 1257, 1260-61 (Fla. 1st DCA 2004)

E. Statement of Any Other Relevant Facts. (Fla. R. Crim. P. 3.853 (b)(5)). Mr. Tompkins relies on the aforementioned statement of the facts pursuant to Fla. R. Crim. P. 3.853(b)(1).

F. Certificate of Service of Motion on Prosecuting Attorney. (Fla. R. Crim.P. 3.853 (b)(6)). A certificate of service of the motion on the prosecuting authority is attached to this motion.

ARGUMENT II

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The due process clause of the Fourteenth Amendment guarantees that a convicted criminal defendant is entitled to DNA testing of biological evidence in the State’s possession when the results of the testing could exonerate the defendant. Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert. granted, — U.S. — (November 3, 2008).

Here, Mr. Tompkins has presented a sworn statement that was introduced into evidence in 1989 that Lisa DeCarr was seen alive and well three months after Mr. Tompkins had been convicted and sentence to death for her murder. This statement in conjunction with the numerous reports that Lisa DeCarr was seen alive after the State’s main witnesses had testified that she was dead requires that Mr. Tompkins be given the opportunity to conduct DNA testing on all of the biological material that was found at the grave site under the house at 1225 E. Osborne Street in Tampa. Denying Mr. Tompkins access the biological evidence which is in the State’s possession for DNA testing would violated the constitutionally guaranteed right of due process.

GOOD CAUSE EXISTS TO ORDER THE DNA TESTING AT A PRIVATE LAB AT THE

DEFENDANT’S EXPENSE

Florida Rule of Criminal Procedure 3.853(c)(7) provides that “on showing of good cause,” a court may order testing by a laboratory other than FDLE so long as the other laboratory is certified by the American Society of Crime Laboratory Directors or the National Forensic Science Training Center. “Good cause” is established in this case because FDLE does not currently perform several types of DNA testing that will be necessary to adequately examine the biological evidence

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at issue, i.e., Y-Chromosome, miniSTR, and/or mitochondrial DNA testing. Nevertheless, these types of DNA testing are admissible and widely used in criminal cases, and certified laboratories such as Orchid Cellmark in Farmers Branch, Texas, and MitoTyping Technologies in State College, Pennsylvania, do perform such testing.20 Mr. Tompkins and his counsel agree to pay all costs for this testing.

Accordingly, it is respectfully requested that when this Court grants the Defendant’s Motion for DNA Testing, it find that “good cause” exists to order that such testing be conducted by either Orchid Cellmark, in Farmers Branch, Texas, or MitoTyping Technologies, in State College, Pennsylvania, certified laboratories capable of performing such testing, at the expense of Mr. Tompkins or his counsel.

CONCLUSION

In sum, as Florida courts have noted, “the purpose of Rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’” Zollman v. State, 820 So. 2d 1059, 1062 (Fla. 2d DCA 2002) (quoting In re Amendment to Florida Rules of Criminal Procedure Creating Rule

3.853 (DNA Testing), 807 So. 2d 633 (Fla. 2001) (Anstead, J., concurring)). In this case, there is such a credible concern: this are numerous reports and sworn testimony that Lisa DeCarr was seen alive after the State’s witnesses testified that 20Orchid Cellmark and Mitotyping Technologies are widely respected

national laboratories.

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she was dead. This Court should grant this Motion for DNA testing, as favorable results will demonstrate that Mr. Tompkins is innocent and may lead to the apprehension of the true perpetrator.

WHEREFORE, Mr. Tompkins, through undersigned counsel, respectfully requests this Court grant this Motion for DNA Testing and order DNA testing of the requested items that would exonerate the Defendant, and order that “good cause” exists for such testing to be performed at a private laboratory at the expense of Defendant or his counsel, and order the State to produce the evidence identified herein for DNA testing, and to conduct a thorough search for the above evidence at the Tampa Police Department and at any other place where evidence is customarily stored in Hillsborough County.

I HEREBY CERTIFY that a true copy of the foregoing Notice of Appeal has been furnished by mail, to Jalal Harb, Assistant State Attorney, Office of the State Attorney, 800 East Kennedy Blvd., 5th Floor, Tampa, FL 33602-4148; Robert Landry, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage Road, Suite 200, Tampa, FL 33607 on December 1, 2008.

MARTIN McCLAIN Special Assistant CCRC-SouthFlorida Bar No. 0754773 141 N.E. 30th Street Wilton Manors, FL 33334 Tel: (305) 984-8344Fax: (954) 564-5412

NEAL DUPREE CCRC-South

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101 NE 3rd Ave., Suite 400 Fort Lauderdale, FL 33301 Tel: (954) 713-1284

SETH E. MILLER Fla. Bar No. 0806471 DAVID MENSCHEL Member of New York Bar INNOCENCE PROJECT OF FLORIDA 1100 East Park Avenue Tallahassee, Florida 32301 Tel: (850) 561-6769Fax: (850) 561-5077

Counsel for Mr. Tompkins

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