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http://www.waynetompkins.us/legal/Filed_11-07-2008_Opinion.pdf

Tompkins’s Motion for Relinquishment of Jurisdiction for Consideration of New Evidence

Finally, we address Tompkins‘s most recent allegations set forth in his motion for relinquishment filed in this Court on November 3, 2008. The motion

requested that we relinquish jurisdiction to the trial court so that he could present a rule 3.851 motion premised on the recent disclosure by the State of a sworn statement of one of the key witnesses, Kenneth Turco, taken on October 28, 2008.16 In this statement, Turco stated that a defense investigator came to his home in 2003 to speak to him regarding this case. Turco stated that the defense investigator asked him to ―sign an affidavit as to what Michael Bonito17 [sic] had to offer in the case.‖ Turco stated that he told the defense investigator that he would not sign the affidavit. When asked by the State what the defense investigator was talking about regarding Benito and the affidavit, Turco replied:

16. Realizing Turco‘s statement contained exculpatory evidence for Tompkins, the State immediately disclosed it to Tompkins‘s defense lawyer, which then gave rise to the motion to relinquish. 17. Michael Benito was the prosecutor who handled Tompkins‘s trial.

Well, Michael Bonito [sic] at the time of my - - prior to the testimony, and naturally we met at the Hillsborough County jail, went into a little room and as I was telling him what happened he told me - - he said - - - 36 -

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 then confirmed that everything he testified to at trial was the truth except for the testimony about the pocketbook, which the State told him to mention.

We denied this motion by order dated November 4, 2008.18 We also struck two footnotes from the State‘s response suggesting improper investigative tactics on the part of the defense investigator. The dissent states that Turco‘s allegations that the State told him not to ―forget the purse‖ were unrefuted. However, in a separate sworn statement by Benito, dated October 23, 2008, also provided by the State, he emphatically denied any wrongdoing. Nevertheless, for the purpose of summary disposition, we have evaluated this claim as one brought under Giglio v. United States, 405 U.S. 150 (1972), and also assumed that the defense did not know of this evidence in 2003. We thus have assumed the truth of Turco‘s statement that Benito told Turco to mention the pocketbook in his testimony. In Rhodes v. State, 986 So. 2d 501 (Fla. 2008), this Court explained:

18. Justice Anstead dissented to the denial of the motion to relinquish and would have allowed the trial court to address the issues raised as a result of Turco‘s recent sworn statement provided by the State.

To establish a Giglio violation, a defendant must show that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. See Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006). Once the first two prongs are established, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury‘s verdict. See id. Under this standard, the State - 37 -

has the burden to prove that the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt. Id.; see also Mordenti v. State, 894 So. 2d 161, 175 (Fla. 2004).

Rhodes, 986 So. 2d at 508-09. Even assuming the first two elements of the Giglio test, as a matter of law, Tompkins cannot satisfy the third element. Even if the State knowingly presented false testimony about Tompkins telling Turco that he buried Lisa DeCarr‘s pocketbook, there is no reasonable possibility that it could have affected the jury‘s verdict and would thus be harmless beyond a reasonable doubt. Turco‘s testimony that Tompkins told him he killed Lisa and buried her under the house remains unrefuted, as do all of the other details of his testimony.19 Rather than recanting the details of his testimony, Turco was emphatic in his October 2008 statement that Tompkins had confessed the details of this crime to him: THE STATE: Okay. Going back to the testimony that you provided at the deposition and then at the trial, did you give the deposition and trial from information that somebody told you other than Wayne Tompkins?

19. Justice Anstead refers to Turco in his dissent as a crucial witness and asserts that this issue must be tested by an evidentiary hearing. We have explained our reasoning for disagreeing that relinquishment is necessary. We would also point out that in Tompkins VI we affirmed a summary denial based on alleged impeachment of Kathy Stevens. Stevens was the person who saw a portion of Tompkins‘s attack on the victim. Further, Turco corroborated all of the critical details of the crime and never suggested in his statement made twenty-five years after the crime that the State suggested any of the other details of the crime. Certainly if Turco was now belatedly recanting his testimony and suggesting that the State told him to testify falsely we would have considered granting a motion to relinquish. - 38 -

TURCO: No, sir. The testimony I gave solely came from Mr. Tompkins himself, and I couldn‘t live with it on my conscience and I was already going to get two years probation for the charge I was in there for which was escape from a work release center which was no great big thing to me at the time, and that‘s it, you know. . . . . THE STATE: And then your testimony regarding who killed the victim when Mr. Tompkins told you about that? TURCO: Is true. THE STATE: That‘s the truth? TURCO: Yes. The whole testimony is the truth except about the part about the purse. . . . . THE STATE: Okay. Mr. Turco, that‘s all the questions I have. Is there anything else that you testified to that was not told to you by Mr. Tompkins or anything else that Mr. Bonito [sic] told you that you didn‘t tell me or anything like that? TURCO: (Shakes head negatively). No. I gave the truth. I told the truth. It‘s that simple. You know, I didn‘t do it for any deal. I did it for my conscience more than anything . . . . Thus, Tompkins‘s Giglio claim fails because the allegedly false testimony does not satisfy the third element of Giglio.

CONCLUSION

For the reasons discussed above, we affirm the trial court‘s summary denial of Tompkins‘s fourth and fifth successive motions for postconviction relief and we - 39 -

also deny his petition for all writs jurisdiction, or alternatively for writ of habeas corpus, or both.