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 Public Defender 
Attorney, Direct Appeal: Daniel J. Schaffer – Assistant Public Defender 
Attorney, Collateral Appeals: Martin McClain and Celeste Bacchi – 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 the 02/14/82 murder of Brenda Rucker. 

During the early morning hours of 02/13/82, Roy Swafford and several of his friends drove from Nashville, Tennessee, to Daytona Beach, Florida.  The group planned to camp at a state park and attend the Daytona 500 Race on Sunday 02/14/82. 

Swafford and his friends went out to a bar called the Shingle Shack on the evening of 02/13/82, returning to the campground near midnight.  Swafford then went out again, and did not return until early Sunday morning.

Patricia Atwell, a dancer at the Shingle Shack, testified that Swafford returned to the bar that night around 1:00 a.m.  Atwell left the bar with Swafford when she got off work at 3:00 a.m., and the two spent the rest 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 Shack back to the campground, a route that would have taken him by the FINA gas station on U.S. Highway 1. 

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

On 02/15/82, Brenda Rucker’s body was discovered a few miles from the gas station in a wooded area.  Medical examiners determined the cause of death to be blood loss from a gunshot wound to the chest.  Rucker had 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 that she had been sexually assaulted.  In examining the type of gun used, which was a .38 caliber, and the number of gunshot wounds, investigators concluded that the killer had to stop and reload the gun at least once during the shooting.

After the Daytona 500, Swafford and his friends returned to the Shingle Shack.  One of members of the group got into a fight with some other individuals after he got swindled on a drug deal.  Swafford pulled a gun and retrieved his friend’s money.  

When police were called to the scene, Swafford attempted to discard the gun in the trash can of one of the restrooms at the Shingle Shack.  Police retrieved the gun and performed ballistics tests.  They determined that Swafford’s gun was the same one used in the shooting death of Brenda Rucker. 

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

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.  Swafford was 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 death penalty.

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

Count I:           First-Degree Murder – Death

Count II:          Sexual Battery - Life

Case Information:

Swafford filed a Direct Appeal in the Florida Supreme Court on 12/09/85.  In that appeal, he argued that the trial court erred in admitting the testimony of Ernest Johnson because it presented information of a collateral crime that was not relevant to a material issue of fact.  The trial court admitted the testimony to show similar crime evidence and as an admission of guilt.  Johnson testified as to an incident that took place between he and Swafford several months after the murder of Brenda Rucker.  Johnson claimed that Swafford suggested that they go get a woman and “do anything [they] wanted to to her.”  Johnson claimed that Swafford assured him 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 if doing such a thing would bother him, Swafford replied, “You just get used to it.”  The Supreme Court noted that the State presented Johnson’s testimony to inform the jury of a particular statement made by Swafford, not to prove that Swafford had committed a crime so similar as to link him to the Rucker murder.  The Florida Supreme Court sided with the trial court noting, “An admission may be admissible if it is relevant, and relevant evidence is defined as evidence tending to prove or disprove a material fact.”  The high court noted that there was enough probative value to Swafford’s statement to be admissible as evidence.  In his Direct Appeal, Swafford also contended that the trial court erred in excluding, as evidence, a police bulletin used for a witness’ description of the perpetrator.  The remainder of Swafford’s claims addressed the consideration and application of aggravating factors and the constitutionality of Florida’s death penalty. 

The Florida Supreme Court found no merit to these claims and affirmed Swafford’s convictions and sentence on 09/29/88.

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

Swafford then filed a 3.850 Motion in the State Circuit Court.  In the post-conviction relief motion, Swafford claimed that a Brady Violation had occurred and that he received ineffective assistance of counsel during the guilt and penalty phases of his trial.  Swafford claimed that the State withheld information about other possible suspects, including James Walsh.  Specifically, Swafford claimed that the State failed to disclose statements made to the police by Michael Lestz about suspect James Walsh.  In response to the allegation that the State withheld exculpatory evidence, the trial court noted, even if the evidence in question had been disclosed to the defense, Swafford failed to prove that the outcome of the trial would have been different.  The court found Swafford’s claim of ineffective assistance of counsel to be without merit.  The State Circuit Court denied the motion, after which Swafford filed an appeal in the Florida Supreme Court.  The high court affirmed the denial of Swafford’s 3.850 Motion on 11/14/90.

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

On 09/07/90, Governor Bob Martinez signed a death warrant for Roy Swafford.  In response to the warrant, Swafford filed a Federal Petition for Writ of Habeas Corpus in the United States District Court, Middle District.  The petition was denied on 11/15/90, after which Swafford steadfastly filed an appeal in the United States Court of Appeals for the Eleventh Circuit.  On 11/15/90, the Court of Appeals granted Swafford a stay of execution.  A motion to hold the proceedings in abeyance was granted on 12/16/91 to allow Swafford to pursue appeals at the state level. The case resumed active status on 10/22/98.  The court dismissed the appeal on 04/07/99, issuing no opinion.

After the issuance of Swafford’s Stay of Execution, Swafford filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court asserting that one of his attorneys had a conflict of interest while representing him.  Defense Attorney Howard Pearl was also a special deputy sheriff during the time he represented the defendant, which Swafford claimed unfairly prejudiced his case.  The Florida Supreme Court noted that such an issue should have been brought up in the trial court through a post-conviction relief motion.  Swafford did, however, raise this claim in a previous 3.850 Motion and the trial court denied the motion without an evidentiary hearing.  The Florida Supreme Court affirmed that denial in Swafford v. Dugger, 569 So. 2d 1264 (Fla. 1990). 

The Florida Supreme Court found no merit to Swafford’s subsequent claim of conflict of interest and denied his Petition for Writ of Habeas Corpus on 08/15/91. 

Swafford filed a second 3.850 Motion in the State Circuit Court on 11/22/91, which was denied on 05/22/92.  On appeal, Swafford moved the Florida Supreme Court to relinquish jurisdiction to the trial court for an evidentiary hearing on whether Swafford’s counsel had a conflict of interest and whether Judge Hammond engaged in improper ex parte communication with the State. 

In January 1993, The Florida Supreme Court relinquished jurisdiction to the trial court for an evidentiary hearing to expand the record on the issues asserted.  Following the evidentiary hearing the trial court denied relief and Swafford’s appeal returned to the Florida Supreme Court.  They found no merit to Swafford’s claims and affirmed the denial of his second 3.850 Motion.  While a motion for rehearing was pending, Swafford’s defense counsel found Michael Lestz and obtained an affidavit from him with information about suspect James Walsh, which corroborated other evidence Swafford claimed the state failed to disclose in violation of Brady.  Swafford moved to have jurisdiction relinquished to the trial court for an evidentiary hearing based on newly discovered evidence.  The Florida Supreme Court denied the motion to relinquish jurisdiction and denied the motion for rehearing.

Swafford then filed a third 3.850 Motion in the State Circuit Court asserting that Michael Lestz’s affidavit constituted newly discovered evidence and “in conjunction with evidence previously withheld by the State, proved a Brady Violation and, furthermore, established Swafford’s innocence.”  The trial court denied the motion without an evidentiary hearing.  Swafford then filed an appeal of that denial in the Florida Supreme Court.  In rejecting Swafford’s claim that a Brady Violation had occurred, the Florida Supreme Court stated, “The State was not required to provide to defense counsel every piece of information regarding other suspects.  The introduction of Lestz’s statement does not alter that conclusion.”  Lestz’s statement did place suspect James Walsh at the Shingle Shack with a .38 caliber gun near the time that the murder weapon was discovered there.  The Florida Supreme Court ruled that this, along with the Brady claim raised in Swafford’s first 3.850 Motion, and other confounded evidence presented at trial warranted an evidentiary hearing as to whether Lestz’s statement could produce an acquittal at retrial.  As such, the Florida Supreme Court remanded to the State Circuit Court for an evidentiary hearing, instructing the trial court to examine whether Swafford’s third successive 3.850 Motion was filed within two years of the time that Lestz’s affidavit could have been obtained through due diligence.  If the trial court discovered Lestz’s affidavit to be new evidence, then it must also decide if the statement would have produced an acquittal at retrial. 

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

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

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

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

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

Swafford filed a 3.853 Appeal in the Florida Supreme Court on 02/09/06.  The appeal is currently pending.

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