The Commission on Capital Cases updates thisinformation regularly.  This information, however, is subject to changeand may not reflect the latest status of an inmate’s case and should not berelied on for statistical or legal purposes.

SWAFFORD, Roy (W/M)

DC #    087905

DOB:   04/12/47   

Seventh Judicial Circuit, Volusia County, Case #83-3425

Sentencing Judge: The Honorable Kim C.Hammond    

Attorney, Criminal Trial: R.M. Cass, Jr. – Assistant PublicDefender 

Attorney, Direct Appeal: Daniel J. Schaffer – AssistantPublic Defender 

Attorney, Collateral Appeals: Terri L. Backhus and CelesteBacchi – CCRC-S

Date of Offense: 02/14/82

Date of Sentence: 11/12/85

Circumstances of Offense:

Roy Swafford was convicted and sentenced to death for the02/14/82 murder of Brenda Rucker.

During the early morning hours of 02/13/82, Roy Swafford andseveral of his friends drove from Nashville, Tennessee, to Daytona Beach,Florida.  The group planned to camp at a state park and attend the Daytona500 Race on Sunday 02/14/82.  Swafford and his friends went out to a barcalled the Shingle Shack on the evening of 02/13/82, returning to thecampground near midnight.  Swafford then went out again, and did notreturn until early Sunday morning.

Patricia Atwell, a dancer at the Shingle Shack, testifiedthat Swafford returned to the bar that night around 1:00 a.m.  Atwell leftthe bar with Swafford when she got off work at 3:00 a.m., and the two spent therest of the night together at the house of one of Swafford’s friends. Atwell testified that Swafford returned her to the Shingle Shack by 6:00 a.m.Sunday morning.  Swafford then reportedly drove from the Shingle Shackback to the campground, a route that would have taken him by the FINA gasstation on U.S. Highway 1.

On the morning of 02/14/82, Brenda Rucker was working at theFINA gasoline station off U.S. Highway 1in Ormond Beach, Florida.  Twowitnesses placed Rucker at the scene before 6:20 a.m.  A third witnessarrived at the gas station at or a few minutes after 6:20 a.m. and found thestore open, the lights on, but no attendant on duty.  At that time, the policeand the manager of the FINA station were called to the scene.

On 02/15/82, Brenda Rucker’s body was discovered a few milesfrom the gas station in a wooded area.  Medical examiners determined thecause of death to be blood loss from a gunshot wound to the chest.  Ruckerhad been shot nine times, with two of those shots being to the head. Medical examiners also determined from the semen found in Rucker’s vagina thatshe had been sexually assaulted.  In examining the type of gun used, whichwas a .38 caliber, and the number of gunshot wounds, investigators concludedthat the killer had to stop and reload the gun at least once during theshooting.

After the Daytona 500, Swafford and his friends returned tothe Shingle Shack.  One of members of the group got into a fight with someother individuals after he got swindled on a drug deal.  Swafford pulled agun and retrieved his friend’s money.  When police were called to thescene, Swafford attempted to discard the gun in the trash can of one of therestrooms at the Shingle Shack.  Police retrieved the gun and performedballistics tests.  They determined that Swafford’s gun was the same oneused in the shooting death of Brenda Rucker.

Swafford was convicted of First-Degree Murder and sentencedto death on 11/12/85.

Incarceration History in the State of Florida:

Trial Summary:

08/09/83         Defendant indicted on:

                                   Count I:          First-Degree Murder

                                   Count II:         Sexual Battery

                                   Count III:        Robbery with a Firearm

11/06/85         The trial jury found the defendant guilty on Counts I & II.  Swaffordwas found not guilty of Count III, Robbery with a Firearm.

11/07/85         Upon advisory sentencing, the jury, by a 10 to 2 majority, voted for the deathpenalty.

11/12/85         The defendant was sentenced as followed:

                                   CountI:           First-DegreeMurder – Death

                                   CountII:         Sexual Battery - Life

Appeal Summary:

Florida Supreme Court – Direct Appeal

FSC #68,009

533 So. 2d 270

12/09/85         Appeal filed

09/29/88         FSC affirmed the convictions and sentence of death

12/02/88         Rehearing denied

01/11/89         Mandate issued

United States Supreme Court – Petition for Writ ofCertiorari

USSC #88-6501

489 U.S. 1100

01/31/89         Petition filed

03/27/89         Petition denied

State Circuit Court – 3.850 Motion

CC #83-3425

10/16/90         Motion filed

11/02/90         Motion denied

Florida Supreme Court – 3.850 Appeal

FSC #76,884

569 So. 2d 1264

11/05/90         Appeal filed

11/14/90         FSC affirmed the denial of Swafford’s 3.850 Motion

11/14/90         Mandate issued

Florida Supreme Court – Petition for Writ of HabeasCorpus

FSC #76,769

569 So. 2d 1264

10/15/90         Petition filed

11/14/90         Petition denied

11/14/90         Mandate issued

United States District Court, Middle District –Petition for Writ of Habeas Corpus

USDC #90-846

11/14/90         Petition filed

11/15/90         Petition denied

United States Court of Appeals for the EleventhCircuit – Habeas Appeal

USCA #90-4041

11/15/90         Appeal filed

12/16/91         Motion to hold proceedings in abeyance granted to allow Swafford to

pursuepost-conviction relief at the State level

10/22/98         Case resumed active status

04/07/99         Appeal dismissed by order, no opinion issued

Florida Supreme Court – Petition for Writ of HabeasCorpus

FSC #77,872

584 So. 2d 5

05/06/91         Petition filed

08/15/91         Petition denied

State Circuit Court – 3.850 Motion

CC #83-3425

11/22/91         Motion filed

05/22/92         Motion denied

Florida Supreme Court – 3.850 Appeal

FSC #80,192

636 So. 2d 1309

07/21/92         Appeal filed

04/07/94         FSC affirmed the denial of Swafford’s 3.850 Motion

06/01/94         Rehearing denied

06/01/94         Mandate issued

State Circuit Court – 3.850 Motion

CC #83-3425

06/13/94         Motion filed

01/10/95         Motion denied

Florida Supreme Court – 3.850 Appeal

FSC #85,682

679 So. 2d 736

05/10/95         Appeal filed

07/11/96         FSC remanded Swafford’s 3.850 Motion to the State Circuit Court for anevidentiary hearing to examine whether his third motion was filed within twoyears of the time that new evidence could have been obtained through duediligence.  If the motion was timely, then the trial court must alsodecide whether the newly discovered evidence could have produced an acquittalat retrial.

09/09/96         Rehearing denied

State Circuit Court – 3.850 Motion (On Remand FromFSC)

CC #83-3425

10/21/97         Motion denied

Florida Supreme Court – 3.850 Appeal

FSC #SC92173

828 So. 2d 966

01/12/98         Appeal filed

04/18/02         FSC affirmed the denial of Swafford’s 3.850 Motion

10/07/02         Rehearing denied

11/07/02         Mandate issued

United States Supreme Court – Petition for Writ ofCertiorari

USSC #02-8984

538 U.S. 982

01/06/03         Petition filed

04/21/03         Petition denied

State Circuit Court – 3.850 Motion

CC #83-3425

04/11/03         Motion filed

06/06/03         Motion dismissed

Florida Supreme Court – 3.853 Appeal (DNA)

FSC #SC03-931

871 So.2d 874 (Table)

05/16/03         Appeal filed

03/26/04         FSC reversed the order denying Swafford’s 3.853 Motion and remanded

for an evidentiaryhearing

Florida Supreme Court – 3.850 Appeal

FSC #SC03-1153

871 So. 2d 874

06/25/03         Appeal filed

03/26/04         FSC reversed the order denying Swafford’s 3.850 Motion

State Circuit Court – 3.853 Motion (DNA) (on remand)

CC #83-3425

06/11/04         Evidentiary Hearing held

01/25/06         Motion denied

Florida Supreme Court – 3.853 Appeal (DNA)

FSC #SC06-242

946 So. 2d 1060

02/09/06         Appeal filed.

12/21/06         FSC affirmed the denial

01/11/07         Mandate issued

State Circuit Court – 3.850 Motion (on remand)

CC #83-3425

03/27/06         Motion amended

03/05/09         Evidentiary Hearing held

08/13/10           Motion denied

Florida Supreme Court – 3.850 Appeal

FSC# 10-1772

(Pending)

09/15/10            Appeal filed

Warrants:

09/07/90         Death warrant signed by Governor Bob Martinez.

11/13/90         Execution scheduled.

11/09/90         Temporary stay granted by the Florida Supreme Court.

11/15/90         Stay granted by the United States Court of Appeals for the Eleventh

  Circuit.

Clemency:

10/11/89         Clemency hearing held (denied).

Factors Contributing to the Delay in the Imposition ofthe Sentence:

The main source of delay in Swafford’s case has been thenumerous appeals.  Swafford’s Direct Appeal took approximately three yearsto reach a disposition.  After that, Swafford filed three 3.850 Motionsand two Habeas Petitions at the State level.  Each of Swafford’s 3.850Motion denials was appealed to the Florida Supreme Court.  The high courtaffirmed the denial of Swafford’s first two 3.850 Motions.  However, theFlorida Supreme Court remanded his third motion for an evidentiary hearing in 1996and again in 2004.  Swafford filed one Habeas Petition and a Habeas Appealin the federal courts.  His Federal Habeas was denied in 1990 and hisappeal was held in abeyance until 1999, when it was ultimately dismissed.

Case Information:

Swafford filed a Direct Appeal in the Florida Supreme Courton 12/09/85.  In that appeal, he argued that the trial court erred inadmitting the testimony of Ernest Johnson because it presented information of acollateral crime that was not relevant to a material issue of fact.  Thetrial court admitted the testimony to show similar crime evidence and as anadmission of guilt.  Johnson testified as to an incident that took placebetween he and Swafford several months after the murder of Brenda Rucker. Johnson claimed that Swafford suggested that they go get a woman and “doanything [they] wanted to to her.”  Johnson claimed that Swafford assuredhim that they would not get caught because “he’d get rid of her, he’d waste her. . . he’d shoot her in the head.”  When Johnson questioned Swafford ifdoing such a thing would bother him, Swafford replied, “You just get used toit.”  The Supreme Court noted that the State presented Johnson’s testimonyto inform the jury of a particular statement made by Swafford, not to provethat Swafford had committed a crime so similar as to link him to the Ruckermurder.  The Florida Supreme Court sided with the trial court noting, “Anadmission may be admissible if it is relevant, and relevant evidence is definedas evidence tending to prove or disprove a material fact.”  The high courtnoted that there was enough probative value to Swafford’s statement to beadmissible as evidence.  In his Direct Appeal, Swafford also contendedthat the trial court erred in excluding, as evidence, a police bulletin usedfor a witness’ description of the perpetrator.  The remainder ofSwafford’s claims addressed the consideration and application of aggravatingfactors and the constitutionality of Florida’s death penalty.  The FloridaSupreme Court found no merit to these claims and affirmed Swafford’sconvictions and sentence on 09/29/88.

Swafford next filed a Petition for Writ of Certiorari in theUnited States Supreme Court, which was denied on 03/27/89.

Swafford then filed a 3.850 Motion in the State CircuitCourt.  In the post-conviction relief motion, Swafford claimed that aBrady Violation[1] hadoccurred and that he received ineffective assistance of counsel during theguilt and penalty phases of his trial.  Swafford claimed that the Statewithheld information about other possible suspects, including JamesWalsh.  Specifically, Swafford claimed that the State failed to disclosestatements made to the police by Michael Lestz about suspect James Walsh. In response to the allegation that the State withheld exculpatory evidence, thetrial court noted, even if the evidence in question had been disclosed to thedefense, Swafford failed to prove that the outcome of the trial would have beendifferent.  The court found Swafford’s claim of ineffective assistance ofcounsel to be without merit.  The State Circuit Court denied the motion,after which Swafford filed an appeal in the Florida Supreme Court.  Thehigh court affirmed the denial of Swafford’s 3.850 Motion on 11/14/90.

Swafford next filed a Petition for Writ of Habeas Corpus inthe Florida Supreme Court.  The high court found all of the claims raisedin the petition to be either procedurally barred or without merit.  Assuch, the Florida Supreme Court denied the petition in a consolidated opinionon 11/14/90.

On 09/07/90, Governor Bob Martinez signed a death warrantfor Roy Swafford.  In response to the warrant, Swafford filed a FederalPetition for Writ of Habeas Corpus in the United States District Court, MiddleDistrict.  The petition was denied on 11/15/90, after which Swaffordsteadfastly filed an appeal in the United States Court of Appeals for theEleventh Circuit.  On 11/15/90, the Court of Appeals granted Swafford astay of execution.  A motion to hold the proceedings in abeyance wasgranted on 12/16/91 to allow Swafford to pursue appeals at the state level. Thecase resumed active status on 10/22/98.  The court dismissed the appeal on04/07/99, issuing no opinion.

After the issuance of Swafford’s Stay of Execution, Swaffordfiled a Petition for Writ of Habeas Corpus in the Florida Supreme Courtasserting that one of his attorneys had a conflict of interest whilerepresenting him.  Defense Attorney Howard Pearl was also a special deputysheriff during the time he represented the defendant, which Swafford claimedunfairly prejudiced his case.  The Florida Supreme Court noted that suchan issue should have been brought up in the trial court through apost-conviction relief motion.  Swafford did, however, raise this claim ina previous 3.850 Motion and the trial court denied the motion without anevidentiary hearing.  The Florida Supreme Court affirmed that denial inSwafford v. Dugger.  The Florida Supreme Court found no merit toSwafford’s subsequent claim of conflict of interest and denied his Petition forWrit of Habeas Corpus on 08/15/91.

Swafford filed a second 3.850 Motion in the State CircuitCourt on 11/22/91, which was denied on 05/22/92.  On appeal, Swaffordmoved the Florida Supreme Court to relinquish jurisdiction to the trial courtfor an evidentiary hearing on whether Swafford’s counsel had a conflict ofinterest and whether Judge Hammond engaged in improper ex parte communicationwith the State.  In January 1993, The Florida Supreme Court relinquished jurisdictionto the trial court for an evidentiary hearing to expand the record on theissues asserted.  Following the evidentiary hearing the trial court deniedrelief and Swafford’s appeal returned to the Florida Supreme Court.  Theyfound no merit to Swafford’s claims and affirmed the denial of his second 3.850Motion.  While a motion for rehearing was pending, Swafford’s defensecounsel found Michael Lestz and obtained an affidavit from him with informationabout suspect James Walsh, which corroborated other evidence Swafford claimedthe state failed to disclose in violation of Brady.  Swafford moved tohave jurisdiction relinquished to the trial court for an evidentiary hearingbased on newly discovered evidence.  The Florida Supreme Court denied themotion to relinquish jurisdiction and denied the motion for rehearing.

Swafford then filed a third 3.850 Motion in the StateCircuit Court asserting that Michael Lestz’s affidavit constituted newlydiscovered evidence and “in conjunction with evidence previously withheld bythe State, proved a Brady Violation and, furthermore, established Swafford’sinnocence.”  The trial court denied the motion without an evidentiaryhearing.  Swafford then filed an appeal of that denial in the FloridaSupreme Court.  In rejecting Swafford’s claim that a Brady violation hadoccurred, the Florida Supreme Court stated, “The State was not required toprovide to defense counsel every piece of information regarding othersuspects.  The introduction of Lestz’s statement does not alter thatconclusion.”  Lestz’s statement did place suspect James Walsh at theShingle Shack with a .38 caliber gun near the time that the murder weapon wasdiscovered there.  The Florida Supreme Court ruled that this, along withthe Brady claim raised in Swafford’s first 3.850 Motion, and other confoundedevidence presented at trial warranted an evidentiary hearing as to whetherLestz’s statement could produce an acquittal at retrial.  As such, theFlorida Supreme Court remanded to the State Circuit Court for an evidentiaryhearing, instructing the trial court to examine whether Swafford’s thirdsuccessive 3.850 Motion was filed within two years of the time that Lestz’saffidavit could have been obtained through due diligence.  If the trialcourt discovered Lestz’s affidavit to be new evidence, then it must also decideif the statement would have produced an acquittal at retrial. 

Following an evidentiary hearing held in February 1997, thetrial court found that Swafford did not file his third 3.850 Motion within twoyears of the time that Lestz’s affidavit could have been obtained through duediligence and that the statement would not have probably resulted in anacquittal.  Swafford steadfastly filed an appeal of that decision in theFlorida Supreme Court.  In that appeal, Swafford’s main argument was thatthe trial court erred in finding that defense counsel did not exercise duediligence in ascertaining Lestz’s affidavit.  The Florida Supreme Courtagreed with the State Circuit Court and affirmed the denial of Swafford’s third3.850 Motion on 04/18/02.

On 01/06/03, Swafford filed a Petition for Writ ofCertiorari in the United States Supreme Court, which was denied on 04/21/03.

On 04/11/03, Swafford filed another 3.850 Motion in theState Circuit Court, which was promptly dismissed on 06/06/03.

On 05/16/03, Swafford filed a 3.853 Appeal in the FloridaSupreme Court based on DNA arguments.  The Florida Supreme Court reversedthe order denying Swafford’s 3.853 Motion and remanded for an evidentiaryhearing.

On 06/25/03, Swafford filed a 3.850 Appeal in the FloridaSupreme Court. The Florida Supreme Court reversed the order denying Swafford’s3.850 Motion on 03/26/04.

On 06/11/04, and Evidentiary Hearing was held and the motionwas denied on 01/25/06.

Swafford filed a 3.853 Appeal in the Florida Supreme Courton 02/09/06, and on 12/21/06, the FSC affirmed the denial of the motion.

On 03/27/06, Swafford amended the 3.850 Motion on remandfrom the FSC.  An Evidentiary Hearing was held 03/05/09. The motion wasdenied on 08/13/10.

On 09/15/10, Swafford filed a 3.850 Appeal in the FloridaSupreme Court. This case is currently pending.

Institutional Adjustment:

________________________________________________________________________

Report Date:  04/26/02          EW

Updated:        09/20/10         EMJ