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Ronald Lee Bell, Jr. v. State of Florida


MR. CHIEF JUSTICE

THE FINAL CASE ON THE COURT'S ORAL ARGUMENT CALENDAR THIS MORNING IS BELL VERSUS STATE. MR. McLAIN.

THANK YOU. MAY IT PLEASE THE COURT. MY NAME IS WILLIAM McLAIN. I AM REPRESENTING RONALD LEE BELL JR. THIS MORNING. RON WAS CONVICTED OF FIRST-DEGREE MURDER FOR THE DEATH OF CORDELL RICHARDS. RON WAS 17 YEARS OLD AT THE TIME OF THE CRIME. THE CODEFENDANTS IN THIS CASE WERE RON'S GIRLFRIEND, CRYSTAL MESTAS, WHO WAS 16 YEARS OLD AT THE TIME OF THE CRIME. SHE WAS TRIED, FOUND GUILTY OF MURDER AND SENTENCED TO LIFE. RENE LINKS, ANOTHER DEFENDANT IN THE CASE, WAS 15 YEARS OLD AT THE TIME OF THE CRIME AND WAS SENTENCED TO LIFE. RON RECEIVED THE DEATH SENTENCE.

THE JUDGE MADE THE FINDING THAT THIS DEFENDANT WAS MORE CULPABLE THAN THE OTHER CODEFENDANTS?

YES, YOUR HONOR. HE DID IN THE ORDER.

AND YOU HAVEN'T RAISED THAT THROUGH THE PROPORTIONALITY.

AS AN INDEPENDENT GROUNDS. NO, I HAVE NOT.

OKAY.

TWO ISSUES I WOULD LIKE TO ADDRESS THIS MORNING. THE TWO ISSUES, I HAVE RAISED IN THE BRIEF, WHICH DEAL WITH THE JUDGE'S ASSESSMENT OF AGE RAISED IN THE CIRCUMSTANCE, AND, SECOND I AM ASKING THIS COURT TO RECONSIDER THE QUESTION OF THE CONSTITUTIONALITY OF IMPOSING A DEATH SENTENCE ON A TEENAGER UNDER THE LEGAL AGE OF ADULTHOOD OF THE AGE OF 18. THE TRIAL COURT FOUND THE AGE MITIGATOR IN THIS CASE BUT GAVE IT LITTLE WEIGHT. IN THAT WEIGHING PROCESS, THE JUDGE WAS LABOR ORG UNDER A MISAPPREHENSION OF LAW, AS TO WHAT THE CONSTITUTIONAL BAR AGE WAS FOR IMPOSITION OF THE DEATH PENALTY. IN PART, HIS ORDER READ, CORRECTLY ACKNOWLEDGING THAT THE CLOSER -- WELL, HE STATED AS A GENERAL RULE, THE CLOSER THE DEFENDANT IS TO THE AGE WHERE THE DEATH PENALTY IS CONSTITUTIONALLY BARRED, UNDER THE AGE OF 16, WHEN COMMITTING THE CRIME, THE MORE WEIGHT THE AGE IS GIVEN, AS AN INSTITUTE OTHER MITIGATOR. THE COURT WAS UNDER THE MISAPPREHENSION THAT 16 WAS THE BAR AGE, UNDER 16 AS OPPOSED TO UNDER 17. APPARENTLY UNAWARE OF THIS COURT'S DECISION IN BRENNAN. WITHTHAT ERRONEOUS UNDERSTANDING OF THE LAW, HE PROCEEDED TO GIVE THE MITIGATOR LITTLE WEIGHT. NOW, THE STATE HAS CONTENDED THIS SHOULD MAKE NO DIFFERENCE, THIS ERROR.

WASN'T THAT CORRECTED? THE JUDGE CORRECTED THAT?

WHAT OCCURRED IS, AT THE TIME OF THE, WHEN THE COURT WAS ORALLY READING THE SENTENCING ORDER INTO THE RECORD, AT THE TIME OF SENTENCING, IN A LATER PORTION IN THE ORDER, WHERE HE WAS DISCUSSING THE DISPARATE TREATMENT OF CODEFENDANT'S QUESTION THAT YOU MENTIONED EARLIER, JUSTICE PARIENTE, THE PROSECUTOR, HE MENTIONED THAT RENE LINKS WAS CONSTITUTIONALLY BARRED FROM RECEIVING THE DEATH PENALTY, AND THE PROSECUTOR CORRECTED THE JUDGE AND SAID, WELL, CRYSTAL MESAS, THE STATE WAS, ALSO, CONSTITUTIONALLY BARRED FROM SEEKING THE DEATH PENALTY AGAINST CRYSTAL. THE COURT PENCILED IN OR PENNED IN A CORRECTION INTO THAT PORTION OF OFFEREDER. HOWEVER -- PORTION OF THE ORDER. HOWEVER, THE COURT DID NOTHING WITH REGARD TO MITIGATION OF AGE. THE COURT NEVER READDRESSED OR ADDRESSED THE QUESTION OF WEIGHING THE AGE MITIGATOR WITH THAT CORRECTION.

WAS THE COURT ASKED TO? THAT IS THE PROSECUTOR, AS YOU SAY, SPOKE UP WHEN THE JUDGE APPARENTLY, YOU KNOW, HAD A MISTAKEN VIEW IN MIND AND HAD THAT CORRECTED AT THAT PARTICULAR POINT. IS THERE ANY REASON WHY THE DEFENSE LAWYER DIDN'T HAVE THE OPPORTUNITY, IF HE WANTED THE JUDGE TO RECONSIDER THAT, OR LOOK AT IT AGAIN, TO BE SURE? SO DID THE LAWYER DO ANYTHING THEN?

THERE WAS NO REQUEST BY DEFENSE COUNSEL, FOR THE COURT TO READDRESS THE AGE MITIGATOR. NOW, LOOKING AT THIS IN THE CONTEXT, THEY ARE PAST A SPENCER HEARING. THEY WERE THERE BEFORE THE COURT STRICTLY FOR THE COURT TO ANNOUNCE SENTENCE AND READ THE ORDER INTO THE RECORD. WHETHER, AGAIN, I CAN ONLY SPECULATE WHETHER THE COURT, AS TO WHY DEFENSE COUNSEL DID NOT ASK THE COURT TO GO BACK AND RECONSIDER IT AT THAT TIME.

OBVIOUSLY THE PROSECUTOR HAD NO PROBLEM SPEAKING UP, IF THERE WAS A PROBLEM THERE THAT COULD BE CORRECTED. SURELY THAT IS A BETTER PROCESS THAN WAITING UNTIL NOW AND ASSERTING THAT AS A MISTAKE THAT EASILY COULD HAVE BEEN DEALT WITH AT THE TIME.

REGARDLESS OF WHETHER IT MIGHT BE A BETTER PROCESS OR NOT IT DID NOT OCCUR IN THE COURT BELOW, AND WE ARE HERE BEFORE THIS COURTWTH AN ERRONEOUS ORDER, WITH THE TRIAL COURT HAVING MADE A FINDING ON THE BASIS OF AN IMPROPER UNDERSTANDING OF THE LAW REGARDING THE AGE MITIGATING CIRCUMSTANCE, AND, I THINK, THIS IS THE POSITION THE COURT IS IN AT THIS POINT, TO ADDRESS IT NOW.

WELL, IF YOU WOULD SAY, LET'S JUST ASSUME THAT WE ARE LOOKING, HERE, AT SOME UNDISPUTED FACTS, WHICH IS THAT THERE IS NO EVIDENCE IN THE RECORD THAT THE DEFENDANT WAS ABUSED, NEGLECTED OR NOT PROVIDED WITH A NORMAL HEALTHY ENVIRONMENT AND SUPPORTED BY LOVING PARENTS. HE IS A COUPLE MONTHS SHORT OF 18. THE JUDGE GIVES AGE LITTLE WEIGHT. IS THAT INCORRECT, AS A MATTER OF LAW? IN OTHER WORDS, WHEN, SINCE 16, BARRING YOUR CONSTITUTIONAL ARGUMENT THAT 17 YEAR OLD SHOULD NOT BE SUBJECT TO THE DEATH PENALTY, FOR DEFENDANTS WHO ARE BETWEEN 17 AND 18, BARRING THERE BEING SOME EVIDENCE OF EMOTIONAL MATURITY OR EXTREME MATURITY, SHOULD THAT AGE BE GIVEN GREAT WEIGHT? THAT IS AS A MITIGATING FACTOR. AS OPPOSED TO JUST SAYING BECAUSE THERE IS NO EVIDENCE OF ABUSE OR NEGLECT, THAT YOU GIVE AGE LITTLE WEIGHT.

IN THAT, YES, YOUR HONOR, AND THAT GOES RIGHT BACK TO THE WHOLE POINT THAT THE JUDGE WAS LABORING UNDER A MISAPPREHENSION OF WHAT THE LEGAL PRINCIPLES WERE THAT HE HAS TO TAKE INTO ACCOUNT AT THE TIME OF THE WEIGHING PROCESS. IT GOES RIGHT BACK TO THAT SAME POINT, AND FURTHERMORE, WE HAVE THE ELLIS DECISION, WHERE HE WAS WITHIN THAT AGE FRAME, BELOW 18, YOU KNOW, ABOVE THE CONSTITUTIONAL BAR, AGE 17, THIS COURT HAS SAID, IN ELLIS VERSUS STATE, THAT THE TRIAL JUDGE MUST FIND THE MITIGATOR AND MUST AFFORD IT WEIGHT.

BUT DOES IT SAY WHAT KIND OF WEIGHT? AS I UNDERSTAND YOUR ARGUMENT, YOU ARE SAYING THAT YOU HAVE TO GIVE IT MORE THAN THE WEIGHT THAT THIS TRIAL JUDGE GAVE IT.

WHAT WE HAVE HERE IS WE CAN'T WE DON'T HAVE ANY WAY OF RELIABLY DETERMINING WHAT WEIGHT THE TRIAL JUDGE MAY HAVE GIVEN THIS MITIGATOR, IF HE HAD UNDERSTOOD, AT THE TIME HE MADE AN ASSESSMENT, THAT BRENNAN WAS, REQUIRED A CONSTITUTIONAL BARB LOW THE AGE OF 16.

HE UNDERSTOOD THAT A 17-YEAR-OLD, AS THE LAW PRESENTLY STANDS, IS ELIGIBLE FOR THE DEATH PENALTY.

YES.

OKAY. AND SO UNDER THOSE CIRCUMSTANCES WHEN YOU LOOK AT THE AGE OF 17, CAN A TRIAL JUDGE GIVE IT LITTLE WEIGHT?

I WOULD CONTEND THAT, UNDER ELLIS, NO. I AM NOT SURE ELLIS REACHES THAT FAR.

WELL, HOW, HOW DO YOU GO WITH IT? I MEAN, CAN IT GIVE IT MEDIUM WEIGHT? I MEAN, DOES IT, IF WE ARE LEAVING THE WEIGHING OF THE MITIGATING CIRCUMSTANCES TO THE TRIAL JUDGE, HOW DO WE SAY LITTLE WEIGHT IS NOT ENOUGH OF THE MEDIUM WEIGHT IS OR IS NOT ENOUGH. GREAT WEIGHT, YOU HAVE TO DO IT. DOESN'T THAT, REALLY, TAKE AWAY THE DISCRETION FROM THE TRIAL JUDGE?

I THINK WE HAVE TO HAVE MORE THAN WHAT WE HAD HERE, FROM THE TRIAL JUDGE.

SUCH AS?

HE MADE THE MERE STATEMENT THERE WAS NO INDICATION THAT HE, OF I AM MATURITY OR -- OF IMMATURITY OR PARENTAL ABUSE, BUT THERE WAS NO REAL ASSESSMENT AS TO MATURITY LEVEL, HERE, OF THIS PARTICULAR INDIVIDUAL, OTHER THAN THAT BARE STATEMENT.

WHAT WAS THE RECOD? HAT DD THE RECORD SHOW OF THIS DEFENDANT'S MATURITY LEVEL?

WE HAD, THERE WAS NO MENTAL HEALTH TESTIMONY PRESENTED. WE HAD THE TESTIMONY FROM HIS FATHER AND HIS GRANDFATHER, ABOUT HE WAS RAISED IN THE CHURCH. HIS FATHER AND HIS GRANDFATHER WERE, BOTH, MINISTERS. THEY TRIED TO RAISE HIM THE RIGHT WAY. HE DID PRETTY GOOD IN SCHOOL. THOSE WERE THE KINDS OF, AND THERE WAS A NUMBER OF NONSTATUTORY MITIGATING CIRCUMSTANCES.

BUT HE WAS GETTING READY TO GRADUATE. THE PLANS WERE FOR HIM TO JOIN THE AIR FORCE.

THAT'S CORRECT.

SO WHY DOESN'T THAT INDICATE A LEVEL OF MATURITY THAT DOESN'T REALLY REQUIRE THE AGE MITIGATOR BEING GIVEN GREAT WEIGHT?

WELL, THAT BEGS THE QUESTION. I MEAN, HOW MATURE OR I AM MATURE IS A 17-YEAR-OLD?

HOW DID THE TRIAL COUNSEL ARGUE THAT? WHAT DID HE SAY, WHEN HE WAS URGING THE TRIAL JUDGE TO FIND THIS AS A MITIGATING CIRCUMSTANCE?

THE PRIMARY EMPHASIS WAS JUST AN ACKNOWLEDGMENT THAT HE WAS 17 AND ASKED THE COURT TO TAKE THAT INTO ACCOUNT. I WOULD -- NOW, THE STATE HAS TKEN THE POSITION THAT THIS ERROR IN THE UNDERSTANDING OF THE LAW MAKES NO DIFFERENCE, AND HE POINTS TO THE JOHNSON AND CHILETO CASES, AND THOSE PARTICULAR CASES ARE DISTINGUISHABLE FOR A COUPLE OF REASONS. NUMBER ONE, IN THOSE CASES THE JUDGE MADE AN ERROR OF FACT, THINKING THAT THESE PARTICULAR DEFENDANTS WERE OLDER THAN THEY ACTUALLY WERE. BUT SIGNIFICANTLY, BOTH OF THOSE DEFENDANTS WERE OF LEGAL ADULT AGE. CHILETO WAS AT LEAST TWO YEARS BEYOND THE AE OFTHE CONSTITUTIONAL BAR AND JOHNSON WAS SOME FIVE YEARS BEYOND THE AGE OF THE CONSTITUTIONAL BAR. RON WAS WITHIN MONTHS OF THE CONSTITUTIONAL BAR.

WHEN YOU SAY CONSTITUTIONAL BAR.

THE CONSTITUTIONAL BAR OF THE IMPOSITION OF THE DEATH PENALTY.

AND YOU CONSIDER THAT TO BE?

WELL, THE FACT --.

WHAT AGE ARE YOU TALKING ABOUT? THEY WERE BEYOND WHAT AGE?

CHILETO AND JOHNSON CASES THAT THE STATE HAS POSTED AS A REASON WHY THE TRIAL JUDGE'S MISTAKE OF LAW IN THIS CASE MADE NO DIFFERENCE. IT HAD TO DO WITH A MISTAKE OF FACT IN THOSE CASES.

I UNDERSTAND THAT BUTWHAT AGE ERE THEY?

THEY WERE, I THINK CHILETO WAS SOME DISTANCE OVER 18 AND THE JUDGE THOUGHT HE WAS 19. JOHNSON WAS 22, AS I RECALL. INSTEAD OF 21.

BUT DIDN'T THETRIAL JUDGE, HERE, DO ESSENTIALLY WHAT WE HAVE INSTRUCTED TRIAL JUDGES TO DO, AND THAT IS TO SAY THAT THE AGE ALONE IS SORT OF A NEUTRAL THING, ASSUMING A CERTAIN AGE, AND THEN WHAT YOU HAVE TO DO IS LINK IT TO SOME CIRCUMSTANCES THAT DEMONSTRATE SUBSTANTIAL I AM MATURITY, AND THE -- IMMATURITY, AND THE THINGS THAT WE HAVE POINTED OUT IN THE CASES THAT MIGHT DO THAT ARE MENTAL PROBLEMS, YOU KNOW, DRUG PROBLEMS, ABUSE PROBLEMS, ALL THOSE THINGS LIKE THAT, AND SO HERE HASN'T THE JUDGE DONE, IN ESSENCE, EXACTLY WHAT WE HAVE SAID IS THAT LOOK AT THAT SKAEL, AND IF THE -- LOOK AT THAT SCALE AND IF THE SCALE REVEALS LOTS OF THOSE PROBLEMS AND YOU HAVE THIS VERY YOUNG AGE, THEN YOU SHOULD GIVE THAT SUBSTANTIAL WEIGHT, BUT IF YOU LOOK AT THAT SCALE AND IT DOESN'T HAVE THOSE PROBLEMS, THEN YOU DON'T HAVE TO GIVE IT SUBSTANTIAL WEIGHT. ISN'T THAT SORT OF WHAT OUR CASE LAW HAS SAID?

IT HAS, BUT I THINK THE ASSESSMENT OF SOMEONE WHO WAS 17 UNDER THE AGE OF ADULTHOOD, THERE IS ALMOST, AND I THINK THE ELLIS CASE, TO SOME DEGREE, RECOGNIZES THIS, BUT THERE IS A PRESUMPTION OF IMMATURITY AT THAT AGE, UNDER THE AGE OF LEGAL ADULTHOOD. THAT IS WHY ELLIS REQUIRES THAT THE AGE MITIGATE OR BE FOUND.

BUT YOU AGREE THE TRIAL COURT REALLY, HAS LOOKED AT THIS OTHER TEST THAT I HAVE JUST ALLUDED TO THAT WE HAVE SET OUT IN OUR CASE LAW, AND THAT IS --

-- MATURITY LEVEL.

ARE THERE THESE EXTRANEOUS CIRCUMSTANCES, I CALL THEM, ARE THERE THESE CIRCUMSTANCES THAT --

JUDGE DID LOOK TO THE QUESTION OF MATURITY TO SOME DEGREE.

BUT HERE HE DID NOT FIND THAT THERE IS A DRUG PROBLEM THAT CAUSED OR AN ABUSE PROBLEM THAT, YOU KNOW, OR SOME MENTAL ILLNESS PROBLEM THAT, JUST ESSENTIALLY FOUND THAT THIS PERSON JUST HAD A NORMAL, ACTUALLY AN EXTRAORDINARY UPBRINGING, AND IN TERMS OF THAT SCALE, IS THAT NOT CORRECT? TOO SOME DEGREE, YOUR HONOR, THAT HE DID ADDRESS THE MATURITY LEVEL.

BUT I MEAN, THE DEFENSE COUNSEL CERTAINLY DIDN'T SAY, JUDGE, GIVE THIS GREAT WEIGHT, BECAUSE LOOK AT ALL THE PROBLEMS THIS CHILD HAS HAD.

THERE WAS NO EVIDENCE OF AN ABUSIVE BACKGROUND. THAT'S CORRECT.

ALL RIGHT. ARE YOU GOING TO ADDRESS THE CONSTITUTIONAL ISSE?

I AM, AND I WOULD LIKE TO MAKE A COUPLE MORE POINTS AS TO% THIS ISSUE ONE, AND I THINK IT SORT OF BLEEDS OVER INTO THE SECOND ISSUE. ONE FACTOR, WHICH I THINK IS IMPORTANT, WHICH THE JUDGE DID NOT REALLY ASSESS, REGARDING THE AGE, IS MOTIVATION BEHIND THIS CRIME. THIS CRIME WAS ACTUALLY THE PRODUCT OF IMMATURE RAGE AND FEAR. I THINK THESE ARE TWO POWERFUL EMOTIONS. EMOTIONS THAT TEENAGERS ARE OFTEN VERY ILL-EQUIPPED TO HANDLE, DUE TO THEIR LACK OF LIFE EXPERIENCES, LACK OF IMPULSE CONTROL, LACK OF SKILLS AND THE BACKGROUND TO MAKE JUDGMENT AND TO TAKE ACTIONS ACCORDINGLY. I MEAN, AN ADULT --

THERE IS A FEAR HERE. I CAN SEE RAGE ANGEL UZI, BUT WHAT IS THE -- I CAN SEE RAGE ANGEL UZI, BUT WHAT IS THE FEAR ELEMENT -- I CAN SEE RAGE AND JEALOUSY, BUT WHAT IS THE FEAR ELEMENT?

I THINK THERE WAS A FEAR ELEMENT THAT INJECTED ITSELF INTO THESE TEENAGERS. THERE WAS A RAGE. LATER, I THINK, FEAR, ONCE THEY GOT INTO THE CIRCUMSTANCES OF THE OFFENSE, ITSELF.

THEY HAD THE BASEBALL BAT. THE VICTIM NEVER HAD ANYTHING, DID HE?

I AM SORRY?

THE VICTIM NEVER HAD ANY WEAPON OR ANYTHING TO THREATEN THEM OR PUT THEM IN FEAR IN ANY WAY.

NO. WHAT YOU HAVE TO UNDERSTAND IS THE MOTIVATION THAT RON BELL HAD IN THIS CRIME WAS THE GIRL THAT HE WAS IN LOVE WITH HAD BEEN ASSAULTED BY THE VICTIM. THE VICTIM HAD ATTEMPTED TO RAPE HER, AND RON BELL WAS REACTING OUT OF RAGE. RAGE PROMPTED HIS BEHAVIOR, HIS MOTIVATION FOR THIS OFFENSE. NOW, AN ADULT MIGHT WELL KNOW HOW TO BACK OUT OF RAGE REACTION  REACTIONS AND HAVE HAD THE LIFE EXPERIENCE TO DEAL WITH. THAT.

IS THERE ANYTHING THAT YOU KNOW OF THE FACTS OF THIS TERRIBLE CRIME, BUT YOU SAID THERE WAS NO MENTAL HEALTH EXPERT PRESENTED.

THAT'S CORRECT.

AND SO THIS CRIME OCCURRED, NOT IN A MATTER OF MINUTES OR A HALF-HOUR BUT OVER HOURS, WHERE THERE WERE A SERIES OF VERY, VERY DELIBERATE ACTS, WHETHER THEY WERE TOTALLY RATIONAL ACTS OR ACTS OF SOMEBODY THAT WAS UNDER SOME OTHER MOTIVATION, BUT HOW, IN THIS RECORD, DO WE COME UP WITH THE CONCLUSION THAT THIS IS A CRIME THAT IS A CRIME THAT IS, OCCURRED BECAUSE OF I AM -- BECAUSE OF IMMATURITY, RAGE, JEALOUSY, AND WITH THAT, YOU KNOW, AND THEREFORE SAY THAT THE JUDGE ERRED IN NOT GIVING THE AGE MITIGATOR GREAT WEIGHT. YOU ARE CERTAINLY NOT ARGUING THAT HE FOUND THE UNDER EXTREME EMOTIONAL DISTURBANCE MITIGATOR, CORRECT?

CORRECT.

SO YOU ARE CERTAINLY USING THIS WHY THE DEATH PENALTY SHOULD BE UNCONSTITUTIONAL FOR 17 YEAR OLD, BUT I AM HAVING TROUBLE UNDERSTANDING HOW THE PRODUCT OF THIS CRIME SHOWS AN IMMATURE INDIVIDUAL.

I GO BACK TO RON'S MITIGATION HERE. NEFS RAGE. EXTREME RAGE. -- HE WAS IN RAGE. EXTREME RAGE. NOW, AN ADULT WOULD HAVE KNOWN NOT TO ACT OUT ON RAGE, THROUGHOUT THE CRIME.

SINCE WE REVIEW DEATH PENALTY CASES ALL THE TIME AND SINCE YOU ARE HERE ALL THE TIME, WE KNOW THAT THIS IS NOT WHAT I WOULD SAY A TYPICAL DEATH PENALTY CASE BUT UNFORTUNATELY THIS IS NOT A TYPICAL OF -- THIS IS NOT ATYPICAL OF WHAT WE SEE BY PEOPLE IN THEIR TWENTIES AND PEOPLE IN THEIR THIRTIES, CORRECT?

THAT'S CORRECT. BUT, AGAIN, THE MOTIVATION HERE, FREQUENTLY WE WILL SEE THOSE KINDS OF CIMES COMMITTED BY ADULTS WITH NO UNDERLYING MOTIVATION THAT HE WAS ENRAGED BECAUSE OF SOMETHING THE VICTIM HAD DONE TO A PERSON HE LOVED. SO WE HAVE AN IMPASSIONED RAGE KILLING, MOTIVATED BY THOSE VARIABLES. NOW, WE DON'T, PERHAPS, DON'T SEE THE CARRY OUT IN THE SAME WAY, IN SOME OF THESE OTHER IMPASSIONED RAGE KILLINGS.

YOU SAID THAT THERE WAS A PRODUCT OF AN ATTEMPTED RAPE.

YES.

THAT WAS THE LANGUAGE THAT YOU USED.

YES.

WHAT IS THE EXTENT OF THE EVIDENCE?

WE HAVE TESTIMONY FROM CRYSTAL, WHO WAS HIS GIRLFRIEND, THAT THE VICTIM IN THIS CASE, CORDELL RICHARDS, HAD MADE SEXUAL OVERTURES TO HER. THEY HAD SUBLETTED A ROOM IN HIS APARTMENT. HE BEGAN MAKING SEXUAL OVERTURES TO HER AT DIFFERENT TIMES. AT ONE POINT, HE CONFRONTED HER, ASKED, ALMOST DEMANDED THAT SHE HAVE SEX WITH HIM. WHEN SHE SAID NO, HE BECAME PHYSICAL WITH HER, AND AT ONE POINT SHOVED HER AGAINST THE WALL, THEN APPARENTLY ON HIS OWN DID, STOPPED, BACKED OUT AND LEFT THE ROOM.

HOW, I AM TRYING TO SEE WHETHER OR NOT THAT FITS THE DEFINITION OF ATTEMPTED RAPE. IN OTHER WORDS --

WHETHER IT WA A CLASSICAL DEFINITION OF ATTEMPTED RAPE OR NOT, THIS WAS THE PERCEPTION IN RON BELL'S MIND. THAT IS SHE HAD BEEN ATTACKED. HE FOUND OUT ABOUT IT BECAUSE OF SEEING BRUISES ON HER THAT WERE LEFT WHEN SHE HAD BEEN SHOVED AROUND BY THE VICTIM, SO AT LEAST IN HIS MIND, SHE HAD BEEN ASSAULTED. SHE HAD BEEN, IT WAS AN ATTEMPTED RAPE IN THIS VIEW. AGAIN, WHETHER IT WOULD HAVE MET THE LEGAL DEFINITION FOR ATTEMPTED RAPE IS ANOTHER QUESTION, BUT IN HIS MIND, THE MAN HAD ATTEMPTED TO RAPE HIS GIRLFRIEND, AND THIS WAS THE MOTIVATION FOR HIM, AND THROUGHOUT THE SEQUENCE OF EVENTS OF HISCRIME, A NUMBER OF PEOPLE WERE SAYING THAT, YOU KNOW, RON WAS ENRAGED. BOTH THE GIRLS TALKED ABOUT HIS ANGER.

IS THERE ANY EVIDENCE IN THIS RECORD OF SOME KIND OF ADVANCED PLANNING ABOUT THIS? DIDN'T, BEFORE THE MURDER, THE DEFENDANT AND THE GIRLFRIEND GO AND OBTAIN ITEMS THAT YOU NEEDED TO CARRY THIS OUT?

YES, YOUR HONOR, THERE WAS. THAT, HOWEVER, DOES NOT RUN COUNTER TO THE POSITION THAT RON WAS STILL ENRAGED, AND HE WAS ACTING OUT HIS RAGE.

WHAT ARE THE TIME SEQUENCE THERE? WHEN DID THEY GO DO THIS HAD, IN RELATIONSHIP TO WHEN THE MURDER ACTUALLY TOOK PLACE?

WELL, THAT IS NOT REALLY CLEAR TO ME, FROM THE RECORD, EXACTLY HOW LONG BEFORE THAT IT WAS, BUT IT WAS, WHETHER IT WAS EARLIER THAT DAY OR MAYBE, EVEN, THE DAY BEFORE, THE ACTUAL MURDER.

WHAT WAS THE EVIDENCE OF RAGE? THAT IS WHAT -- I AM HAVING TROUBLE SEEING THIS AS A, THIS WAS NOT A SPONTANEOUS CONFRONTATION, LOSING THE TEMPER AND PICKING UP ANY AVAILABLE WEAPON, YOU KNOW, AND WHICH I DON'T KNOW WHETHER THAT WOULD FIT THE DEFINITION OF THE CLASSIC RAGE OR NOT, BUT WHAT WAS THE EVIDENCE HE THAT HE WAS ENRAGED AND STAYED ENRAGED, WHICH CONJURES UP THE MENTAL IMAGE HERE OF THE MENTAL STATE OF BEING OUT OF CONTROL?

THERE WAS TESTIMONY FROM CRYSTAL THAT, WHEN HE FOUND OUT ABOUT THE ATTACK OR ASSAULT ON HER THAT HE WAS ANGRY. THERE WAS TESTIMONY -- HE TRIED TO TAKE SOME ACTION. HE PUT A DEADBOLT ON THE DOOR. THE INAPPROPRIATE BEHAVIOR FROM THE VICTIM CONTINUED. WHETHER IT WAS A CLASSICAL, HE IS ENRAGED, OUT OF CONTROL AND COMMITS AN ACT, IT WAS NOT THAT CLASSICAL TYPE OF RAGE THAT YOU MIGHT EXPECT, ALTHOUGH THE CONFRONTATION THAT EVENING, WHEN THE KILLING OCCURRED, DID HAVE OVERTONES OF THAT CLASSICAL CONFRONTATION. MY VIEW OF HOW THIS HAPPENED WAS THAT THIS WAS A SIMMERING RAGE ON HIS PART. YOU KNOW. AN ADULT MIGHT KNOW HOW TO BACK OUT OF THAT KIND OF EMOTION AND NOT ACT OUT ON IT THE.

ISN'T THIS THE KIND OF THING, THOUGH, THAT A MENTAL HEALTH EXPERT WOULD ORDINARILY ANALYZE AND SAY, NOW, HERE IS THE EXPLANATION FOR THIS, OF WHAT TRIGGERED, YOU KNOW, WHATEVER. WE HAVE NONE OF THAT HERE, DO WE?

UNFORTUNATELY WE DO NOT HAVE MENTAL HEALTH TESTIMONY IN THIS RECORD.

DO WE KNOW WHETHER A MENTAL HEALTH EXPERT WAS CONSULTED IN THIS CASE? ANOTHER ONLY INDICATION I HAVE OF THAT IS THERE WAS A MOTION FOR THE APPOINTMENT OF A CONFIDENTIAL EXPERT, WHICH WAS GRANTED. BUT BEYOND THAT, I DON'T KNOW.

OKAY. APPRECIATE THAT.

I WOULD, ALSO, POINT OUT, I THINK THE ONLY TWO COMPARABLE CASES THAT THIS COURT HAS ARE THE TWO 17 YEAR OLD WHOSE DEATH SENTENCES HAVE BEEN AFFIRMED. BONIFAY VERSUS STATE AND LaCROIX VERSUS STATE. THERE IS A MARKED DISTINCTION BETWEEN THE CRIMES IN THOSE CASES AND THE CRIME HERE. IN BONIFAY, THE DEFENDANT WAS ACTUALLY A HIRED CONTRACT KILLER. HE KILLED A STRANGER FOR MONEY. IN LaCROIX, WE HAVE A DEFENDANT WHO, ALSO, KILLED STRANGERS, FOR MONEY, A COUPLE, TWO, IT WAS A DOUBLE HOMICIDE. TWO PEOPLE WERE KILLED FOR THE PURPOSES OF ROBBING THEM OF THEIR PROPERTY.

WASN'T THERE SOME ROBBERY MOTIVE IN THIS, INVOLVED IN THIS CASE, ALSO?

THERE WAS SOME ROBBERY MOTIVE INVOLVED IN THIS CASE, BUT IT WAS, REALLY, A SECONDARY MOTIVATION HERE. IT DEVELOPED OVER TIME. RON BLLS MOTIVATION WAS ANGER AND RAGE.

BUT BEFORE THEY TOOK -- WHEN DID THEY ASK HIM FOR THE PIN NUMBER TO HIS ACCOUNT?

THEY DID ASK HIM FOR HIS PIN NUMBER TO THE ACCOUNT, AND I WOULD NOTE THAT THAT WAS RENE LINKS WHO SAID LET'S GET HIS PIN NUMBER AT THAT TIME, AND THEN THEY GOT THE PIN NUMBER FROM HIM SO I AM NOT SUGGESTING THERE WASN'T A PECUNIARY MOTIVE THAT DEVELOPED DURING THE COURSE OF THIS CASE. WHAT I AM SUGGESTING IS THAT RON BELL'S MOTIVATION HERE WAS ANGER  ANGER. ANGER OVER WHAT THE VICTIM HAD DONE TO HIS GIRLFRIEND. WE DON'T HAVE THAT IN EITHER BONIFAY OR LaCROIX.

BUT THE MITIGATION IN THIS CASE, BEYOND THE AGE MITIGATOR, THERE IS, REALLY, THE GOOD UPBRINGING. THERE IS BONIFAY HAD NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY, WHICH WAS NOT FOUND AS A MITIGATOR HERE, AS WELL AS LaCROIX, SO HERE WE DON'T REALLY KNOW WHAT THE STATUS WAS OF HIS BACKGROUND, BUT APPARENTLY THE DEFENDANT DID NOT WANT TO ARGUE FOR THAT MITIGATOR.

THAT'S CORRECT. WE DON'T KNOW.

SO IN TERMS OF THE PROPORTIONALITY, IT WOULD SEEM TO ME THAT THIS CASE DOES SEEM COMPARABLE TO BONIFAY AND LaCROIX. THESE ARE SOME TERRIBLE AGGRAVATORS THAT WE HAVE. WE HAVE GOT HAC AND THE MOST TERRIBLE TYPE OF METHODICAL DEATH THAT OCCURRED IN THIS CASE. WE HAVE GOT THE PECUNIARY GAIN.

IF WE ARE LOOKING AT ASSESSING THE CHARACTER OF THE DEFENDANT, IN BONIFAY AND LaCROIX, WE HAVE DEFENDANT WHO KILL STRANGERS, SOLELY MOTIVATED FOR MONEY, AND HERE WE HAVE AN ENRAGED DEFENDANT WHO KILLS IN REACTION TO SOMETHING THAT THE DEFENDANT HAD DONE TO HIS GIRLFIEND.

BUT THE JUDGE FOUND CCP AND YOU HAVEN'T CHALLENGED THAT, EITHER.

CORRECT. MR. CHIEF JUSTCE

YOU ARE IN YOUR REBUTTAL TIME.

THANK YOU. JUST BRIEFLY I WOULD ASK THAT THE COURT ESSENTIALLYEXTEND THE RATIONALE OF ALLEN AND BRENNAN AND HOLD THAT THE BAR FOR THE DEATH PENALTY SHOULD BE RAISED TO THE AGE OF UNDER THE AGE OF 18. I THINK I HAVE ADEQUATELY ADDRESSED THAT IN THE BRIEF. I WOULD POINT THE COURT TO THE STUDY THAT I PROVIDED FROM VICTOR STRIDE AND OTHER THINGS REGARDING THE HISTORY WE HAVE WITH THE 17-YEAR-OLD DEATH PENALTY IN THE STATE OF FLORIDA. THANK YOU. MR. CHIEF JUSTICE

THANK YOU, MR. McLAIN. MR. WHITE.

THANK YOU, YOUR HONOR. STEVE WHITE REPRESENTING THE PELL LEE. -- THE APPELLEE. COUNSEL ARGUES THAT THIS IS NOT CLASSICAL RAGE. INDEED, THIS IS THE METHODICAL EXECUTION OF CORDELL RICHARDS OVER A PERIOD OF HOURS. THERE WAS TESTIMONY BY MISS LINKS THAT SHE HAD DISCUSSED, WITH BELL, KILLING THE VICTIM AHEAD OF TIME, BEFORE THE SQEBS SEQUENCE OF EVENTS. -- BEFORE THE SEQUENCE OF EVENTS  EVENTS.

LET ME ASK YOU, THIS MURDER DID TAKE PLACE ON THE SAME NIGHT OF THIS TELEPHONE CALL, WHICH --

THE TELEPHONE CALL WAS SOMETIME BETWEEN AFTER MIDNIGHT ON FEBRUARY 3.

THAT IS WHAT PROMPTED THE DEFENDANT TO COME OVER TO THIS APARTMENT.

MESTAS PAGED BELL. BELL COMES OVER. NOW, THEY HAD PREVIOUSLY DISCUSSED, THOUGH, LINKS, AT LEAST LINX AND BELL PREVIOUSLY DISCUSSED KILLING THE VICTIM AND GETTING HIS PIN NUMBER AND CLEANING OUT HIS ACCOUNT. AND CONSEQUENTLY ON FEBRUARY 2, THE NIGHT BEFORE, IS WHEN THEY GO TO WAL-MART AND GET THE ROPE, THE CHAIN AND THE LOCK.

WHO ACTUALLY WENT TO WAL-MART?

I BELIEVE LINX STAYED IN THE CAR AND, ACCORDING TO LINX, MESTAS AND BELL WENT INSIDE AND BOUGHT THE STUFF FOR THE KILLING. IN FACT, BELL EARLIER THAT DAY HAD ALSO BEEN TRYING TO SOLICIT HELP FROM, I BELIEVE IT WAS MOTLEY AND SMITH, I AM NOT POSITIVE OF THE SECOND NAME, TO GET MORE HELP, OSTENSIBLY TO BEAT UP THE VICTIM, BUT THERE WAS COMPETENT TESTIMONY THAT THE PLAN WAS TO KILL THE VICTIM AND LIVE IN HIS PROPERTY. MESTAS SAID I SAW CORDELL WRITE OUT THE CHECK FOR THE MONTH OF FEBRUARY, SO WE CAN LIVE IN HIS APARTMENT FREE, BASICALLY, FOR THE MONTH, AND, OF COURSE, AS YOUR HONORS POINTED OUT, LI INFORM X REMINDS -- LINX REMIPDZ BELL, WHILE THEY HAVE -- REMINDS BELL, WHILE THEY HAVE RICHARDS OUT IN THE WOODS, TO GET THE PIN NUMBER. THIS WAS DISCUSSED PREVIOUSLY, AND AT THAT POINT IN LINX'S TESTIMONY, IT IS ABOUT PAGE 1092 OF THE TRANSCRIPT, THAT IS WHEN LINX TESTIFIES THAT, IN ADDITION TO GETTING THE PIN NUMBER, WE HAD DISCUSSED LIVING IN HIS APARTMENT AND PAWNING HIS PROPERTY, AND IN FACT THAT IS WHAT THEY DO. AFTER THE VICTIM IS KILLED, BELL AND MESTAS LIVE IN THE APARTMENT. THEY PAWN THE VICTIM'S VIOLIN. SELLS -- IN FACT AT THAT POINT BELL REPRESENTS HIMSELF SUCCESSFULLY AS 18. OF COURSE HE IS ONLY TWO MONTHS SHY OF 18, ANYWAY, BUT BASICALLY THEY CLEAN OUT HIS ACCOUNT. I THINK IT WAS CALVIN SMITH COME OVER AND PRACTICE RICHARD'S SIGNATURE, AND HE SIGNS VARIOUS CHECKS ON RICHARD'S ACCOUNT. I MEAN, THIS IS A SEQUENCE OF EVENTS TO BASICALLY DIVEST, KILL RICHARDS AND DIVEST HIM OF PROPERTY, INCLUDING HIS APARTMENT, HIS VIOLIN, HIS COMPUTER, AND OTHER PROPERTY. AND IN FACT, COOLY AND RATIONALLY EXECUTE THE PLAN, GETTING THE PROPERTY, GETTING THE WHEREWITHAL TO COMMIT THE CRIME AHEAD OF TIME, STAGING THE BAT IN THE APARTMENT, GETTING THE PIN NUMBER, BURNING THE BODY AFER THE VICTIM WAS KILLED, TO DESTROY THE EVIDENCE, GOING, CALMLY GOING TO GET THE MEAT CLEAVER TO FINISH OFF THE VICTIM. THIS IS AFTER THE VICTIM HAS BEEN SUFFERING FOR HOURS AND GETTING THE MEAT CLEAVER AT TARGET, TOGETHER WITH DUCT TAPE TO MAKE SURE THAT THE VICTIM WAS SILENCED AS HE WAS STILL CRYING FOR HELP IN THE WOODS WITH CONSTRUCTION WORKERS NEARBY, JUST AFTER AROUND 9:45 ON THE MORNING OF THE 3d, THEN CALMLY AND RATIONALLY GOING BACK TO TARGET, AFTER FINISHING, AFTER BELL SLITS THE VICTIM'S THROAT TWICE, GOING BACK TO TARGET AND RETURNING THE MEAT CLEAVER AND GETTING HIS $10 PLUS CHANGE BACK FROM THE MEAT CLEAVER.

YOUR OPPONENT SAYS THAT THIS WAS A KILLING, AS YOU SAY, IN RAGE, AFTER AN ATTEMPTED RAPE OF HIS GIRLFRIEND. NOW, WHAT WAS THE EVIDENCE, IF ANY, THAT WOULD SUPPORT A CONCLUSION LIKE THAT?

YOUR HONOR, THE STATE'S CONTENTION IS THAT RICHARDS, THERE WAS TESTIMONY THAT RICHARDS SOLICITED SEX FROM MESTAS, WHO WAS STAYING IN A SEPARATE BEDROOM WITHIN RICHARDS'S APARTMENT. SHE REFUSED AND HE SHOVED HER UP AGAINST THE WALL TWICE AS THE REACTION. SHE CRIES, AND HE LEAVES, AND THAT IS THE END OF IT, EXCEPT FOR THE FACT THAT SHE COMPLAINS, THEN, OR MENTIONS IT TO BELL, WHO STARTS THINKING ABOUT KILLING THE VICTIM, AND THEN THEY CONCOCT THIS PLAN ABOUT TO BASICALLY KILL HIM AND DIVEST HIM OF HIS PROPERTY. SO, YES, IT DID START OUT THE INCEPTION OF THE IDEA OF KILLING THE VICTIM STARTED OUT WITH, HEY YOU MISSED WITH MY GIRL AND NOW IT IS PAY BACK, BUT THEN IT DYING RESIST. IT EVOLVES INTO A -- IT DIE RECESS. -- IT DIGRESSES. IT REVOLVES INTO A SCHEME OF GETTING HELP AND TORCHING HIM ALIVE AND SO ON, TO GET HIS PROPERTY, PAWN HIS PROPERTY, LIVE IN THE APARTMENT, CLEAN OUT HIS BANK ACCOUNT.

LET'S LOOK AT YOUR ISSUE NUMBER ONE. DO AGREE THAT THE PROSECUTOR'S ARGUMENT RULED OUT EVERYTHING EXCEPT FIRST-DEGREE MURDER, AND INFORMED THE JURY THAT, IF THEY CAME BACK WITH ANYTHING OTHER THAN FIRST-DEGREE MURDER, THEY WOULD BE GOING AGAINST THE LAW?

ISSUE FOUR, IF I MAY, YOUR HONOR. I BELIEVE --

BEG YOUR PARDON?

YOU ARE TALKING ABOUT THE PROSECUTOR'S ARGUMENT? I BELIEVE THAT IS ISSUE FOUR, BUT IN ANY EVENT, I AM SORRY.

WHATEVER NUMBER IT S FOUR.

YES, YOUR HONOR. TWO THINGS ON. THAT ONE, YOUR HONOR, THE ISSUE IS NOT PRESERVED. THE DEFENSE COUNSEL DID OBJECT, BUT HE OBJECTED, FIRST OF ALL, HIS OBJECTION WAS HE JUST KEPT POINTING TO THE PROSECUTOR'S ARGUMENT. HE NEVER STATED LEGAL GROUNDS. WELL, THE TRIAL JUDGE, THEN, INTERPRETS THE OBJECTION TO MEAN THAT THE PROSECUTOR HAS MISSTATED THE DEFENSE COUNSEL'S ARGUMENT AND BASICALLY SAID YOU HAVEN'T MISSTATED HIS ARGUMENT, SO IN ESSENCE THE TRIAL JUDGE INTERPRETS THE OBJECTION DIFFERENTLY FROM THE CLAIM ON APPEAL. WE DON'T HAVE THE SAME CLAIM ON APPEAL AS WHAT THE TRIAL JUDGE INTERPRETED THE OBJECTION TO BE, ALTHOUGH IT REALLY WASN'T EVEN THAT. THAT WAS IN ESSENCE A GIFT BY THE TRIAL JUDGE IN INTERPRETING IT THAT WAY. SO WE DON'T HAVE A SPECIFIC OBJECTION. WE DON'T HAVE AN OBJECTION ON THE SAME GROUNDS AS HERE. THE TRIAL JUDGE RULES ON HIS BEST GUESS WHAT THE OBJECTION IS. THERE IS NO MOTION FOR MISTRIAL, HAVING RECEIVED A FAVORABLE RULING, NO REQUEST FOR A CURETIVE INSTRUCTION, AND FURTHERMORE ON THE MERITS, YOUR HONOR, DEFENSE COUNSEL HAD ARGUED TO THE JURY THAT THEY SHOULD FIND THE DEFENDANT GUILTY OF SOME LESSER-INCLUDED OFFENSE AS A MATTER OF CONSTITUTIONAL EQUAL PROTECTION. BASICALLY IT WAS A JURY PARDON ARGUMENT, SO THE PROSECUTOR'S ARGUMENT WAS IN RESPONSE TO THIS JURY PARDON ARGUMENT THAT, WELL, THE LAW REQUIRES YOU TO FIND THE DEFENDANT GUILTY OF THE HIGHEST OFFENSE THAT THE STATE HAS PROVED, SO THEY WERE ARGUING OVER WHETHER THERE SHOULD BE JURY PARDON, BUT THE DEFENSE COUNSEL IS THE ONE THAT RAISED IT FIRST ON THE MERITS, SO THIS WAS A FAIR RESPONSE TO THAT ARGUMENT, BUT IN ANY EVENT IT WASN'T PRESERVED. AS TO IF I MAY GO BACK TO ISSUE ONE FOR A MOMENT, IN TERMS OF THE JUDGE'S MISPERCEPTION OF THE MINIMUM AGE FOR THE DEATH PENALTY, THE PROSECUTOR DID, AS COUNSEL HAS INDICATED, DID AND PRIZE THE TRIAL JUDGE OF THAT FACT. NOW, THIS WAS AFTER THE TRIAL JUDGE READS THE ENTIRE SENTENCING ORDER. IT IS NOT -- IT DOESN'T STOP HIM JUST AT THE POINT WHERE IT WAS CONCERNING WHY THE GIRLS DID NOT GET DEATH. THE JUDGE READS THE ENTIRE SENTENCING ORDER, AND MR. ELMORE INFORMS THE TRIAL JUDGE, JUDGE, YOU HAVE MISS PERCEIVED THE MINIMUM AGE. THE CUT OFF IS NOW 17. THEY HAVE TO BE 17 NOT 16. NOW, THE DISCUSSION DOES GO FROM THERE, IN TERMS OF TALKING ABOUT WHY THE GIRLS DIDN'T GET DEATH, BUT THAT WAS THE MAIN FOCUS OF THE DEFENSE. I MEAN, THAT IS WHY THEY CONCENTRATED ON. THAT THE DEFENSE COUNSEL DID RAISE AGE AS TO UNDER 18, BUT THE MAIN FOCUS OF THE DEFENSE HAD BEEN ON, LOOK, THESE GIRLS DIDN'T GET DEATH, SO MY CLIENT SHOULDN'T GET DEATH. THAT WAS A MAJOR, MAJOR FEATURE OF THE DEFENSE. SO THE PROSECUTOR HAD ADDRESSED THAT PROBLEM AS TO THE MAIN FEATURE OF THE TRIAL. ADMITTEDLY THE JUDGE DIDN'T GO BACK AND CORRECT THE MISTAKE WHERE IT APPEARED TWICE IN THE ORDER, WITHIN A COUPLE OF PAGES OF EACH OTHER, BUT THE TRIAL JUDGE KNEW THAT THE FACT THAT THE MINIMUM AGE WAS 17 INSTEAD OF 16. JUST AS IN CHILETO, THE TRIAL JUDGE, IN FACT, THERE WAS RECORDS TO SUPPORT THE TRIAL JUDGE KNEW THE ACTUAL AGE OF THE DEFENDANT, AND SO HERE WE ARE TALKING ABOUT, AND I WOULD DISAGREE, NOT THAT IT MATTERS, BUT,IA, THE UNDERLYING PROBLEM IS A MISTAKE IN LAW, BUT WE ARE TALKING ABOUT THE BASIS FOR THE DISPARITY IN AGE BETWEEN THE MINIMUM AGEAL ALLOWABLE FOR THE DEATH PENALTY AND THE DEFENDANT'S AGE, SO WE ARE TALKING ABOUT THAT FCT IN NUMBER OF MONTHS BASICALLY, SO IT IS A LOT LIKE CHILETO IN THAT RESPECT. AND IN ANY EVENT, OF COURSE IT DOESN'T MATTER. I MEAN, AS YOUR HONORS HAVE ALREADY INDICATED, THE FACTS ON HAC AND CCP ARE JUST OFF THE SCALE. I MEAN THE TRIAL COURT'S WORDS, BASICALLY, IF THIS ISN'T HAC, THEN IT WILL NEVER EXIST. I MEAN, WE HAVE HOURS OF AGONY, AS FOR EXAMPLE, THE DEFENDANT APPROACHES HIM TO COME BACK TO MAKE SURE HE IS DEAD, AND HE SAID HELP, HELP, CALLING OUT FAINTLY. THIS IS AFTER HE SUFFERED FOR HOURS, HAVING BEEN BURNED ALIVE, CHOKED TO UNCONSCIOUSNESS AND BEATEN FEEL SEVERELY, AND INSTEAD -- AND BEATEN SEVERELY, AND INSTEAD OF, OF COURSE, HELPING HIM, THE DEFENDANT TRIES TO CRACK HIS NECK A COUPLE OF TIMES AND THEN GOES AND GETS THE MEAT CLEAVER AND COMES BACK AND FINISHES HIM OFF.

LET'S GO BACK TTHE AGE FOR JUST A MOMENT. AS I UNDERSTAND, PART OF THE DEFENSE ARGUMENT IS THAT THE MERE FACT THAT SOMEONE IS BELOW THE AGE OF MAJORITY, DEMONSTRATES, PRESUMPTIVELY, A CERTAIN IMMATURITY, HOW DO YOU RESPOND TO THAT?

WELL, I BELIEVE THAT THE LANGUAGE IN ELLIS, WHEN COUNSEL BEGAN DISCUSSING ELLIS, I PULLED THE CASE OUT, THE LANGUAGE INCLUDES THE TRIAL OURT SHALL FIND THE FACTOR OF AGE AND MITIGATION BUT MAY REDUCE THE WEIGHT OF MITIGATION DUE TO THE FACT THAT MR. ELLIS POSSESSED EVIDENCE ADDUCED BY DEFENSE COUNSEL AT THE TIME OF THE CRIME. IN THIS CASE DEFENSE COUNSEL ADDUCED TESTIMONY, TO SHOW THAT THE DEFENDANT SHOULD NOT BE EXECUTED, SO THEY ADDUCED TESTIMONY FROM THE DEFENDANT'S FATHER AND GRANDFATHER THAT HE WAS AN OFFICER IN HIS CHURCH, A GOOD STUDENT, NOT A DISCIPLINARY PROBLEM. HAD GOOD GRADES IN SCHOOL, GENERALLY A'S, Bs AND Cs, UNTIL CLOSE TO THE TIME OF THE MURDER AND SHOWED THAT HE WAS NOT A DISCIPLINARY PROBLEM WITH CORRECTIONS, AND IN THE PARTICULAR CIRCUMSTANCES OF THIS CRIME, IT WAS THE DEFENDANT WHO PURCHASED THE ROPE, THE CHAIN, THE LOCK AHEAD OF TIME, PLANNING METHODICALLY FOR THE MURDER, IN TERMS OF DIVESTING THE VICTIM OF HIS PROPERTY. IT WAS THE DEFENDANT WHO SAID GO GET THE BAT. HIT HIM WITH THE BAT. THE DEFENDANT WAS CHOKING THE HELPLESS VICTIM, WHO IS FLAILING HIS ARMS BCHT THE DEFENDANT IS MUSCULAR AND THE VEHICLE -- HIS ARMS ABOUT. THE DEFENDANT IS MUSCULAR AND THE VICTIM IS NOT. IT IS THE DEFENDANT WHO POURED THE LIGHTER FLUID AND WENT AND GOT THE MEAT CLEAVER AND TRIED TO CRACK HIS NECK AND IT WAS THE GIRLS WHO SAID YOU ARE NOT HITTING HIM HARD ENOUGH, WHEN THEY WERE OUT IN THE WOODS. HE WAS THE LEADER OF THESE TWO YOUNG GIRLS IN DISPLAYING THE SAME MATURITY THAT HE HAD EXHIBITED AS AN USHER AND AN OFFICER IN HIS CHURCH. THERE WAS NOT ONLY IMMATURITY, THERE WAS AFFIRMATIVE EVIDENCE OF THE GROTESQUENESS OF THIS CRIME. THERE WAS EVIDENCE OF THIS DEFENDANT'S AFFIRMATIVE EVIDENCE OF HIS MATURITY, GIVEN THE FACTS OF THIS CRIME AND THE DEFENDANT'S BACKGROUND. A GOOD STUDENT, NOT A DISCIPLINARY PROBLEM IN SCHOOL AND SO ON. AN OFFICER IN THE CHURCH. AS TO THE AGE HAD, IN TERMS OF BEING A PER SE EXCLUSION, RAISING THE AGE, JUSTICE ANSTEAD'S CONCURRENCE IN BRENNAN NOTWITHSTANDING, IT DID NOT CARRY THE DAY. AND THE STATE WOULD URGE THE COURT TO ADHERE TO LaCROIX, THE CIRCUMSTANCES NOW ARE ESSENTIALLY AS BACK THEN. IN FACT, USING THE DEFENDANT'S OWN APPENDIX TO HIS BRIEF, THERE WAS A STUD ANY THERE WITH A LOT OF STATISTICS, AND SOME OF THOSE STATISTICS, TO ME, INDICATE -- THERE WAS A STUDY IN THERE WITH A LOT OF STATISTICS, AND TO ME SOME OF THOSE STATISTICS INDICATE THAT THERE WAS A VAST DISPARITY BETWEEN AGE 16 AND 17, SUCH THAT 16 OF THE 17 JUVENILES EXECUTED FROM 1973 TO 2001, ACCORDING TO THIS STUDY, WERE AGE 17. ONLY ONE WAS 16.

THIS IS, YOU ARE TALKING ABOUT, AROUND THE COUNTRY.

YES, YOUR HONOR. THIS WAS IN THAT STUDY.

JUST WITHIN FLORIDA, AND USING ALLEN AND BRENNAN AS THE STANDARD FOR EVALUATING THIS, SINCE LaCROIX OCCURRED IN THE LATE '80s, THE ONLY OTHER DEFENDANT, 17, WHOSE DEATH PENALTY SENTENCE HAS BEEN UPHELD IS BONIFAY. CORRECT?

THAT IS WHAT -- I DID A SEARCH OF D.O.C. LAST WEEK IN PREPARATION FOR THIS AND I STILL FOUND ONLY BELL, LaCROIX AND BONIFAY AS AGE 17 AT THE TIME OF THE CRIME.

SO BASED ON THE ANALYSIS OF ALLEN AND BRENNAN, UNDERSTANDING THERE IS NOT A STRICT CUT OFF, HOW DOES THIS DIFFER FROM THE BRENNAN SITUATION?

WELL, YOUR HONOR, I THINK, GETTING BACK TO ISSUE ONE, TO SOME DEGREE, THE DEFENDANT'S MATURITY IN LEADERSHIP IN THIS, IN THE CIRCUMSTANCES OF THIS CASE, ILLUSTRATE WHY THE PER SE CUT OFF SHOULD BE, SHOULDN'T BE RAISED, THE BAR SHOULDN'T BE RAISED ANY HIGHER. WE HAVE BASICALLY SOMEONE WHO IS 17 YEARS 10 MONTHS OLD, WHO IS A HIGH SCHOOL SENIOR. I KNOW, AND THIS IS OFF-THE-RECORD MATERIAL, BUT I KNOW AS A FATHER, 17 YEAR OLD ARE PRETTY DARNED ASTUTE.

IS THAT ANALYSIS VALID, IN CONSIDERING WHETHER OR NOT THE CUT OFF IS AT 17 OR 178?

-- AT 17 OR 18? I MEAN, YOU DON'T REALLY CONSIDER THAT, IF YOU ARE DRAW AGO BRIGHT LINE.

YES, YOURSELF, BUT AS JUSTICE PARIENTE HAS INDICATED, WE DO HAVE, I MEAN A MAJOR REASON FOR BRENNAN IS THE COURT RAGSLIZED REASON THAT WE DON'T HAVE ANY -- RATIONALLIZED REASON THAT WE DON'T HAVE ANY OTHER 16 YEAR OLD TO COMPARE BRENNAN TO. WE DO HAVE OTHER 17 YEAR OLD TO COMPARE BELL TO, MAINLY LaCROIX, AND THE STATE WOULD CONTEND THAT THIS DEATH SENTENCE IS CERTAINLY PROPORTIONAL, GIVEN LaCROIX, AND WE HAVE BONIFAY AS WELL. IN FACT I THINK LaCROIX WAS 17 YEARS 10 MONTHS OLD. I MEAN THE FACTS ARE, IN THAT SENSE, AMAZINGLY SIMILAR TO THE FACTS HERE, ALTHOUGH THE STATE WOULD CONTEND THAT THE AGGRAVATION IS WORSE HERE, BUT 70 PERCENT, IF I MAY GET BACK TO THAT STUDY VERY BRIEFLY, 70 PERCENT OF THE DEATH SENTENCES IMPOSED IN THAT SAME TIME PERIOD HAVE BEEN OF 17 YEAR OLD. 60 PERCENT OF THE STATES WITH THE DEATH PENALTY ALLOW FOR THE IMPOSITION OF THE DEATH PENALTY OF 16 OR 17 YEAR OLD. BUT GETTING BACK TO THE STATISTIC THAT I BEGAN WITH, AT 16 OF 17 OF THE DEFENDANTS WHO HAVE BEEN EXECUTED IN THAT TIME PERIOD WERE 17 YEAR OLD. AGAIN, THERE IS A BIG GULF BETWEEN THE AGE OF 16 AND 17, AS THE FAX OF THIS CASE ILLUSTRATE. -- AS THE FACTS OF THIS CASE ILLUSTRATE. A 17-EAR-OLD CAN BE VERY MATURE RELATIVE TO PLANNING THE DEATH OF A VICTIM, USING THAT MATURITY USING THE SAME LEADERSHIP SKILLS THAT HE HAD AS AN OFFICER IN HIS CHURCH, BUT IN THIS CASE LEADING THESE TWO GIRLS TO EXECUTE THE VICTIM. ONE OTHER POINT THAT THE STATE WOULD MAKE AS TO ISSUE TWO, IS WHENEVER WE SET A PER SE CUT OFF IT CERTAINLY RUNS COUNTER TO THE BASIC CONCEPT OR PRINCIPLE IN DEATH SENTENCING OF INDIVIDUALIZED SENTENCING. INDIVIDUALIZED SENTENCING, IN THIS CASE, INCLUDED ALL THE THINGS THAT WE HAVE MENTIONED EARLER IN THE ORAL ARGUMENT, PERTAINING TO THE FACTS HERE, AND THE DEFENDANT'S LEADERSHIP ROLE AND BACKGROUND, AND THE TRIAL COURT PROPERLY CONSIDERED THOSE MATTERS AND, IN FACT, THOUGHT THAT THOSE WERE THE MOST IMPORTANT THINGS IN WEIGHING THE DEFENDANT'S AGE, WHICH GETS BACK TO ISSUE ONE AGAIN, IN TERMS OF WHETHER THE ERROR IS CONSEQUENTIAL. THAT IS THE ERROR AS TO EARLIER IN THE SENTENCING ORDER. BUT IF THERE ARE NO OTHER QUESTIONS, THE STATE WOULD RESPECTFULLY REQUEST THAT THE CONVICTION AND SENTENCE BE AFFIRMED, FOR THESE REASONS AND THE REASONS IN THE STATE'S BRIEF. THANK YOU. MR. CHIEF JUSTICE

THANK YOU. REBUTTAL.

A COUPLE OF COMMENTS REGARDING ISSUE TWO. WOULD POINT OUT THAT THERE HAVE BEEN NO EXECUTION INS THE STATE OF FLORIDA SINCE 1973, WHICH WAS THE STUDY FOR PERSONS WHO ARE 17 YEARS OLD. WHILE THERE HAVE BEEN 15 DEATH SENTENCES IMPOSED ON PERSONS WHO WERE 17, ONLY TWO SURVIVED APPELLATE REVIEW. THOSE TWO, BONIFAY AND LaCROIX, WERE DECIDED IN '88 AND '93 AND THEN, I THINK, AGAIN IN '96 RESPECTFULLY, WHICH IS BEFORE THIS COURT DECIDED BRENNAN. LEGAL ADULTHOOD HAS BEEN ESTABLISHED AT 18 FOR MOST PURPOSES IN OUR SOCIETY IN OUR STATE. WE DON'T DEMO-.

IT HASN'T ALWAYS BEEN 18 THOUGH.

IT USED TO BE 21. IT USED TO BE GREATER THAN 18. AND IT STILL IS FOR ALCOHOL CONSUMPTION.

BUT WHAT IS THE CONSTITUTIONAL UMBRELLA DOES THAT FALL UNDER? WOULD YOU ARGUE THE SAME THING, IF IT WERE 21?

I THINK IF WE WERE LOOKING AT HOW SOCIETY HAS DEEMED TO TREAT ADULTS, WE HAVE ESTABLISHED 18 AS ADULOOD FOR PURPOSES. WE DREW A LINE AT 18. BELOW 18, YOU CAN'T ENTER INTO A CONTRACT. YOU CAN'T VOTE. YOU CAN'T SERVE ON A JURY. BELOW 21, YOU CAN'T DRINK ALCOHOL, BUT YET BELOW 8, WE ARE GOING TO ALLOW PEOPLE TO -- BUT YET BELOW 18, WE ARE GOING TO ALLOW PEOPLE TO BE SENTENCED TO DEATH FOR A CRIME THEY COMMITTED. REDUCING THE PENALTY TO NO MORE THAN LIFE FOR 17 YEAR OLD NO MORE FLIES IN THE FACE OF PHILOSOPHY OF TREATING JUVENILES AS ADULTS FOR CAPITAL FELONIES. I MEAN, A MANDATORY LIFE SENTENCE FOR A JUVENILE IS NO EASY SANCTION. ALL WE ARE SAYING IS TO IMPOSE DEATH FOR SOMEONE WHO IS NOT DEEMED LEGALLY AN ADULT IN OUR SOCIETY, IS A RECOGNITION THAT WE, AS A SOCIETY, ARE GOING TO TREAT OUR CHILDREN WITH SOME DEFERENCE. YOUR CHILD UNDER 18. FOR MOST PURPOSES YOU SHOULD BE A CHILD AND NOT WORTHY OF IMPOSITION OF A DEATH PENALTY, WHEN YOU ARE UNDER 18 AS WELL. THAT IS ALL I HAVE. THANK YOU. MR. CHIEF JUSTICE

THANK YOU, COUNSEL. THE COURT WILL BE IN RECESS.