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Konstantinos X. Fotopoulos v. State of Florida


NEXT CASE ON THE COURT'S ORAL ARGUMENT CALENDAR IS FOTOPOULOS VERSUS STATE. MR. TRAGOS.

GOOD MORNING. MAY IT PLEASE THE COURT. GOOD MORNING. I REPRESENT THE APPELLANT IN THIS CASE, MR. FOTOPOULOS. THIS CASE COMES BEFORE THE COURT WITH AN UNUSUAL PROCEDURAL HISTORY, IN THAT THIS COURT GAVE AN INDICATION, IN AN EARLIER ORDER, MUCH DIFFERENT THAN THE TRIAL COURT OR THE PROSECUTION, WHEN THEY RECOGNIZED THAT THERE MAY BE AN ISSUE HERE OF SUBSTANCE OVER FORM. NORMALLY, IN THESE CASES, AND ACTUALLY THIS IS THE SECOND 850 THAT HAS COME BEFORE THE COURT. THE COURT SENT THIS MATTER BACK, IN ATTEMPT TO PROPERLY ADMINISTER JUSTICE. WE HEAR BY DISMISS THE ABOVE CASE WITHOUT PREJUDICE, FOR THE PURPOSE OF ALLOWING THE APPELLANT TO AMEND HIS UNDERLYING MOTION, BROUGHT PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.850. SO IT CAME BEFORE THIS COURT ONCE. THE COURT CRITICIZED PRIOR COUNSEL FOR THE WAY IT CAME BEFORE THE COURT, BUT INSTEAD OF TOTALLY THROWING IT OUT AND NOT ACTUALLY LOOKING AT WHAT THE SUBSTANCE WAS, OF THE ARGUMENTS, AND WHETHER OR NOT WE HAVE SOME REAL MERIT IN THESE ARGUMENTS, THE COURT SENT IT BACK AND SET THAT -- AND SAID THAT IT COULD BE AMENDED AND AN EVIDENTIARY HEARING SHOULD BE HELD, AND THEN WITHOUT PREJUDICE, TO COME BACK HERE ON ANOTHER APPEAL OF THE 3.850, IF THE EVIDENTIARY HEARING WAS UNSUCCESSFUL, SO NOW WE ARE BACK BEFORE THIS COURT, AND THE LOWER COURT ORDERED -- ORDER BEGINS WITH A PREMISE. THIS COURT IS OBLIGED TO APPLY AND ENFORCE ANY AND ALL APPLICABLE PROCEDURAL BARS THAT PRECLUDE PROCEDURAL CLAIMS CONTAINED IN FOTOPOULOS'S 3.850 MOTION. FOR THAT REASON, WHEN THIS COURT DENIES RELIEF BASED ON A PROCEDURAL BAR, THAT IS INTENDED TO BE THE PRIMARY BASIS FOR THE DISPOSITION OF THE CLAIM AND IS ADEQUATE AND INDEPENDENT BASIS FOR DENIAL OF RELIEF. ANY DISCUSSION OF THE MERIT OF SUCH PROCEDURAL LIL-BARRED CLAIMS IS ALTERNATIVE AND SECONDARY TO THE PROCEDURE BAR FINDING, WHICH IS INTENDED TO BE THE PRIMARY BASIS FOR DISPOSITION. THAT IS THE LOWER COURT ORDER, SECOND TIME AROUND, THAT WE ARE BACK HERE ON TODAY. AND THAT IS WHERE IT BEGINS. THE STATE CRITICIZED ARGUMENT ONE, SAYING IT REALLY COULDN'T FIND WHAT THERE WAS IN ARGUMENT ONE THAT I WAS OBJECTING TO, AND THAT IS WHAT I WAS OBJECTING TO IN ARGUMENT ONE, IS THAT THAT COURT, WHEN YOU READ THAT ORDER, BASICALLY SAYS THIS IS ALL PROCEDURALLY BARRED, AND THEN THE REST OF THE STUFF YOU PUT IN THERE WAS FLUFF.

WHY DON'T YOU ADDRESS WHICH ONES OF THOSE, WHICH OF THOSE CLAIMS THAT YOU SUGGEST NOW, BECAUSE CLEARLY IN THE BRIEF, IT APPEARS THAT YOU ADMITTED THE CLAIM FOUR, CLAIM FIVE, WERE NOT CHALLENGED, THIS APPEAL. WOULD YOU AGREE WITH THAT?

OKAY. IT WOULD BE EASIER TO DEAL WITH WORDS THAN NEWSPAPERS, BECAUSE THE NUMBERS GOT KIND OF MESSED UP, AS WE WENT THROUGH THESE THINGS.

CLAIM FOUR WAS THE PROSECUTOR  PROSECUTORIAL MISCONDUCT, CLAIM FIVE WAS THE PENALTY-PHASE JURY INSTRUCTIONS OF SHIFTING THE BURDEN, SO DID YOU NOT MEAN TO INCLUDE THOSE IN POINT ONE? IT APPEARS THAT THOSE WERE CONCEDED THAT THOSE ARE NOT PART OF THIS APPEAL.

THAT'S CORRECT.

ALL RIGHT. WOULD YOU, THEN, PROCEED TO TELL US WHICH OF THE OTHER CLAIMS YOU WOULD LIKE TO ADDRESS, THEN, WHICH WERE NOT ADDRESSED IN THE BRIEF.

WHICH WERE NOT ADDRESSED IN THE BRIEF.

YES, SIR.

ARGUMENT TWO GOES THROUGH, IN DETAIL, AND THAT IS WHY I DEFINITELY, I JUST ARGUED THE FACT. IT WAS HARD TO PIN DOWN IN THAT ORDER, EXACTLY WHAT THE COURT WAS SAYING, BUT THE PROCEDURAL ISSUE, WHAT I SAID IN ONE IS THE FACT THAT IT HAD INEFFECTIVE ASSISTANCE OF COUNSEL.

LET'S BE SURE WE ARE COMMUNICATING THEN. POINT ONE DOES NOT REALLY CONTAIN A SUBSTANTIVE POINT. THEN WE SHOULD GO TO CLAIM, LET'S GO TO CLAIM TWO AND ADDRESS THESE THEN. OKAY.

THAT IS WHY I MENTIONED IN POINT TWO THAT POINT TWO ACTUALLY ADDRESSES WHAT THE SPECIFICS ARE THAT SHOULD BE LOOKED AT BY THE COURT, WHAT THE SUBSTANCE IS OVER THE FORM THAT SHOULD BE LOOKED AT IN THE COURT. THE STATE SAYS THAT THERE WAS NO LEGAL BASIS ARGUED FOR, FOR INSTANCE, THE SUPPRESSION OF THE WEAPON, AND THEY ARE RIGHT. THE TRIAL, THE DEFENSE COUNSEL IN THE LOWER COURT DID NOT ARGUE ANYTHING, WITH REGARD TO SUPPRESSION OF THE WEAPON. HE BASICALLY SAID, JUDGE, I AM JUST RELYING ON THE CASE LAW. NOW, WHEN LOOKING AT THIS COUNSEL'S PERFORMANCE, THERE IS A CASE CITED IN THE BRIEF, BRASSINSKI. THE ISSUE ON THE SEARCH WAS WHETHER OR NOT THOSE ITEMS HAD BEEN ABANDONED IN THE HOUSE OR WHETHER OR NOT THOSE, WHETHER THE ITEMS COULD BE, THE SEARCH COULD BE CONSENTED TO BY THE PEOPLE LIVING IN THE HOUSE AT THE TIME. AND POSSESSION OF, FOR INSTANCE, CLOSED CONTAINERS, SOMEONE ELSE POSSESSING A CLOSED CONTAINER BELONGING TO SOMEONE ELSE, THE PERSON POSSESSING IT CANNOT CONSENT TO THE SEARCH OF THAT. WE HAVE TESTIMONY IN THIS CASE, FROM THE EVIDENTIARY HEARING, JUST HELD, FROM LISA FOTOPOULOS, WHO WAS THE EX-WIFE, WHO WAS ONE OF THE ALLEGED VICTIMS, SAYING THAT SHE SAW HER HUSBAND BURY SOMETHING IN THE BACKYARD PIT. WELL, THE POLICE GO BACK THERE, THEY FIND IN THE BACKYARD PIT, SOME WEAPONS AND SOME AMMUNITION BUT SHE CONSENTED TO THE SEARCH. I THINK IT IS OBVIOUS, FROM THE BRASSINSKI CASE, THAT THERE WERE INDICATIONS THERE THAT THIS MAN WANTED TO KEEP THAT PRIVATE AND THAT THAT WAS HIS, AND THAT THE LAW ENFORCEMENT HAD NO RIGHT TO GO DIG IT UP AND OPEN IT UP ON A CONSENT BASIS. FROM THE EVIDENTIARY HEARING, PEOPLE WERE SENT TO THE HOUSE, TO GET MR. FOTOPOULOS'S PERSONAL ITEMS. WHEN THEY WERE SENT THERE, THEY WERE TOLD THE POLICE TOLD US WE CAN'T GIVE YOU ANYTHING.

WELL, WHAT IS THE STATE OF THE LAW ABOUT THE SCOPE OF A COTENT, AS IT WERE -- AS A CO-TENANT, AS IT WERE, RIGHT TO A SEARCH. ARE THERE SOME LIMITATIONS ON WHAT THE CO-TENANT HAS THE POSSESSION TO?

MERE POSSESSION OF A CLOSED CONTAINER DOES NOT GIVE SOMEONE THE RIGHT TO A SEARCH.

CAN WE ESTABLISH HERE WE ARE DEALING WITH THE BLACK BAG AND THE BARBECUE PIT.

AND THERE IS ANOTHER BAG IN THE GARAGE.

WHAT DOES THE EVIDENCE SHOW WITH THAT? DOES THAT SHOW THAT IT WAS LOCKED AND CLOSED, OR DOES THE EVIDENCE SHOW THAT THAT WAS OPEN AND AFTER STANDING ON THE LADDER THE POLICE OFFICER OBSERVED THROUGH THE OUTSIDE WINDOWS, WHAT DO YOU CONTEND THE EVIDENCE SHOWS ON THAT?

THE EVIDENCE SHOWS THAT IT WAS A BAG AND THAT HE HAD OPENED THE BAG, MY RECOLLECTION IS HE HAD OPENED THE BAG TO SEE A VIDEO.

HE DID NOT HAVE TO OPEN THE BAG?

I BELIEVE HE WAS ON A LADDER IN THE BASEMENT.

IN A GARAGE.

AND HE HAD TO GET ON A LADDER.

DOES THAT MAKE A DIFFERENCE IF IT IS OPEN, OR DOES IT NOT MAKE A DIFFERENCE?

I DON'T THINK IN THIS CASE IT MAKES A DIFFERENCE, BECAUSE A VIDEOTAPE IN ITSELF IS NOT EVIDENCE. HE HAD TO PLAY THAT VIDEOTAPE, IN ORDER TO SEE WHAT WAS ON IT, BEFORE IT BECAME EVIDENCE, SO I THINK IN THIS CASE IT IS NOT LIKE SEEING A POUND OF COCAINE IN THE BAG. YOU ARE JUST SEEING A VIDEOTAPE WHICH, IN ITSELF, DOESN'T HAVE ANY EVIDENTIARY VALUE. BUT DIDN'T WE HAVE INFORMATION THAT THERE HAD BEEN A VIDEOTAPING OF A MURDER AND THAT WAS ONE OF THE ITEMS THAT WOULD CONCEIVABLY BE, AS A MOUND OF COCAINE, IF THAT IS ONE OF THE REASONS THAT YOU ARE THERE AND YOU ARE IN THE HOME OF THE PERSON WHO HAS ALLEGEDLY HAD AN ATTEMPT ON HER LIFE?

WELL, A VIDEOTAPE IS DIFFERENT THAN THE POUND OF COCAINE, BECAUSE THE POUND OF COCAINE IS, IN ITSELF, BUT THAT WOULD MEAN THAT ANY TIME YOU SAW ANY VIDEOTAPES --

UNDER THE CIRCUMSTANCE OF THIS CASE IS REALLY WHAT WE WANT TO DEAL WITH.

JUST SEEING A VIDEOTAPE WITHOUT PLAYING IT. NOW, SEE, HE SAW IT AND HE PLAYED IT. HE PLAYED IT. THAT IS DIFFERENT THAN JUST SEEING A VIDEOTAPE, AND, AGAIN, THE FACT THAT, WHEN HE TRIED TO EXERCISE POSES OTHER CONTROL OVER THESE -- POSSESSORY CONTROL OVER THESE ITEMS, AND THEY SAY HE ABANDONED THESE THINGS. THE REASON HE ABANDONED THESE THINGS IS BECAUSE HE IS IN JAIL, AND HE SENT SOMEONE TO GET THEM AND HE DIDN'T GET THEM, BECAUSE THE POLICE SAID DON'T GIVE ANYTHING BACK TO HIM, AND AFTER THEY SAW THIS STUFF WITHOUT A SEARCH WARRANT, THAT IS WHEN THEY WENT AND GOT THE SEARCH WARRANT, BUT GOING BACK TO THE ATTORNEY, HIS ATTORNEY DIDN'T PRESENT ANY OF THIS AND DIDN'T PRESENT THAT ARGUMENT TO THE COURT, AND IF YOU LOOK AT THE ROSE CASE AND THE BRASSINSKI CASE, THE INEFFECTIVENESS OF COUNSEL, YOU HAVE TO LOOK AT THE TOTALITY OF THE CIRCUMSTANCES. THIS IS JUST ONE OF THE AREAS THAT HE WAS DEFICIENT IN, AND IT WAS PRESENTED AT THE EVIDENTIARY HEARING. ANOTHER HEAR THAT HE WAS DEFICIENT IN IS HIS FAILURE TO INVESTIGATE THIS CASE. NOW, HE SAYS THAT HUNT, THE CODEFENDANT, THAT HUNT WAS A MINOR PLAYER, NOT REALLY THAT IMPORTANT, NOT CRITICAL. THAT IS WHY HE DIDN'T GO THROUGH ALL THE TROUBLE OF IMPEACHING THUNT, AND THERE ARE -- HUNT, AND THERE ARE TWO SERIOUS PROBLEMS. ONE IS HE DIDN'T IMPEACH HER WITH THE STUFF HE KNEW, AND HE DIDN'T GO OUT TO FIND THE OTHER STUFF, STUFF WE FOUND OUT LATER HERBS DIDN'T BOTHER TO GO AND FIND THAT OUT, SO WE HAVE STUFF HE DIDN'T KNOW, OBVIOUSLY HE DIDN'T USE, AND STUFF HE DID KNOW THAT HE DIDN'T USE, AND ONE OF THE KEY AREAS, KEY PROBLEM THAT IS ABSURD IS THE SENTENCING OF MS. HUNT. SHE WAS NOT SCHEDULED TO BE SENTENCED, THEN ALL OF A SUDDEN THE TRIAL IS GOING TO COME UP FOR MR. FOTOPOULOS, SO IMMEDIATELY THE STATE MOVES AND PUSHES UP HER SENTENCING, SO THAT SHE WILL BE SENTENCED BEFORE THE TRIAL, AND AT HER SENTENCE, SHE GETS THE DEATH PENALTY, AND AT HER SENTENCE, THE STATE SAID THE FOLLOWING THINGS ABOUT HER, WHICH ARE TOTALLY INCONSISTENT WITH THE EVIDENCE PRESENTED AT MR. FOTOPOULOS'S TRIAL, AND THE WORST PART IS THE DEFENSE LAWYER SAT THERE AND LISTENED TO ALL THIS, ACCORDING TO HIS TESTIMONY HE WENT TO THAT SENTENCING, HEARD IT ALL AND NEVER USED IT, NEVER RAISED IT.

DOES OUR LAW RECOGNIZE A DISTINCTION BETWEEN THE STATE TAKING A POSITION WITH REGARD TO FACTUAL ELEMENTS OR JUST SHADING THE ARGUMENTS, MAKING, PLACING MORE EMPHASIS ON ARGUMENTS, OR IS THAT REALLY NO DIFFERENCE AT ALL? BECAUSE HERE WE KNOW THEY HAD THE SAME FACTS, BUT THE STATE TOOK THE POSITION, IN MS. HUNT'S PROCEEDING, THAT SHE WAS A VOLUNTARY, PROCEEDED ON HER OWN. I MEAN THAT IS RECOGNIZED. IS THAT A, DOES THAT FALL INTO THE CATEGORY OF TRYING TO TELL THE PUBLIC OR TELL A JURY TWO DIFFERENT STORE IS?

I THINK IT DOES, BUT IT GOES BEYOND THAT, WELL BEYOND THAT. THEY NOT ONLY GAVE THE OPINION THAT SHE WAS NOT, COULD NOT BE DOMINATED, BUT THEY GAVE SOME FACTUAL OPINIONS, LIKE SHE SAID THAT HE POINTED THE AK-47 AT HER WHEN SHE SHOT THE VICTIM. THEY SAID, THE EVIDENCE WILL SHOW CONCLUSIVELY THAT NO ONE CAN HOLD A VIDEO CAMERA AND AN AK-47 OR THE BATTERY FOR THE CAMERA. THOSE ARE SPECIFICS. THEY SPECIFICALLY TALKED ABOUT THE NUMBER OF SHOTS. THEY SPECIFICALLY TALKED ABOUT HER STATEMENTS. THEY SPECIFICALLY TALKED ABOUT HER STATEMENTS ON THE VIDEOTAPE, WHICH WERE SOMETHING TO THE EFFECT, FIND IT REAL QUICK, BUT SOMETHING TO SHE BASICALLY SAYS "DON'T SHINE THAT SIT ON ME", AND SHE BASICALLY IS YELLING AT THE VIDEO CONTROLLER.

I THOUGHT THE DEFENSE ATTORNEY AT TRIAL SAID THAT HE THOUGHT THAT VIDEOTAPE SHOWED THAT SHE WAS NOT UNDER THE DOMINATION OF FOTOPOULOS AND THAT HE MADE THAT ARGUMENT. IS THAT NOT --

YES, BUT HE DIDN'T PRESENT, AND SAL EARN-SAYS HE HAS -- AND SALERNO SAYS HE HAS EVERY RIGHT AND SHOULD PRESENT, THAT THE, THE SAME POSITION THAT HE WAS TAKING BEFORE THE -- THAT THE STATE WAS TAKING BEFORE THE JURY.

IF THAT CAME OUT IN THE FORM OF ADMISSIBLE EVIDENCE, WHAT WOULD A COMPETENT ATTORNEY, IN YOUR OPINION, BEEN ABLE TO DO, KNOWING WHAT POSITION THE STATE HAS TAKEN AT THE SENTENCING?

UNITED STATES VERSUS SALERNO, THE GOVERNMENT TOOK TWO CONTRADICTORY POSITION INS A CASE. THE ONE DEFENDANT IN THE SECOND CASE WAS MERELY A PUPPET ON A STRING.

YOU SAID HE WOULD HAVE BEEN ABLE TO ARGUE WHAT TO THE JUDGE?

THEY COULD HAVE BEEN ADMITTED INTO EVIDENCE, I BELIEVE, ADMITTED INTO THE EVIDENCE.

IF THE STATE --

RIGHT. THE PROSECUTOR TOOK AN INCONSISTENT POSITION, AND THAT SHOULD HAVE BEEN PRESENTED TO THE JURY, EXACTLY LIKE U.S.-SALERNO SAYS. THE U.S.-SALERNO SAYS THE JURY MUST DECIDE WHETHER HE WAS A PUPPET ON A STRING OR A BID RINGER. IT IS IMPROPER FOR THE GOVERNMENT TO TAKE INCONSISTENT POSITIONS IN THE SAME FACTUAL SITUATION, AND THE JURY SHOULD HAVE HEARD, AND THIS LAWYER SAT THERE AND LISTENED TO THE GOVERNMENT TAKE THESE, NOT JUST ON THAT BUT ON BULLETS. THEY SAT THERE AND SAID THAT THE BULLET THAT KILLED HIM WAS.22 TO THE HEAD. THAT IS WHAT THEY SAID IN THEIR SENTENCING. THEN THEY HAVE A PATHOLOGIST, AND THEY DON'T BELIEVE THE FACT THAT THERE WAS AN AK-47 BEING POINTED AT HER. THEY SAY SHE IS A LIAR, WHEN THEY ARE DOING HER SENTENCING, AND NOW THEY HAVE A PATHOLOGIST, I DON'T EVEN KNOW THE PATHOLOGIST, BUT A PATHOLOGIST TESTIFY, FORENSIC SCIENTIST TESTIFY THAT THERE WAS A FOURTH SHOT, BECAUSE THAT WAS HER STATEMENT. NOW, THAT THEY TESTIFIED TO AT FOTOPOULOS'S TRIAL, BUT THAT IS NOT WHAT THEY ALLEGED AT HER SENTENCING. AND IF YOU GO THROUGH HER SENTENCING, IF YOU GO THROUGH HER SENTENCING, THEY SPECIFICALLY TALK ABOUT SHE IS A LIAR, ABOUT THE AK-47. SHE LIED ABOUT IT BECAUSE SHE DOESN'T WANT THE COURT TO BELIEVE THAT WHAT SHE DID WAS PREMEDITATED. SHE CHANGED HIS PLANS. HE HAD A CERTAIN PLAN AND HOW TO DO THIS, AND SHE CHANGED THOSE PLANS. THEY TALK ABOUT ALL THIS STUFF AT HER SENTENCING THAT SHE IS NOT DOMINATED BY HIM. THEY GO THROUGH EXAMPLE AFTER EXAMPLE AFTER EXAMPLE OF WHY SHE IS NOT DOMINATED. HE SITS THERE ANALYSTENS TO THAT AND THEN WHEN IT IS TIME FOR HIS TRIAL AND HE REPRESENTS HIS CLIENT, THE STATE GETS UP AND SAYS TOTALLY DIFFERENT THINGS, HE ARGUES WHAT THE STATE ARGUED AT HER SENTENCING, AND IT CERTAINLY WOULD HAVE MADE A DIFFERENCE TO THAT JURY, I BELIEVE, FOR THEM TO KNOW THAT THE STATE SAID THE SAME THING IN CLOSING ARGUMENTS. MR. CHIEF JUSTICE

YOU ARE IN YOUR REBUTTAL.

I RESERVE THE REST OF MY TIME. THANK YOU. MR. CHIEF JUSTICE

MR. NUNNELLEY.

MAY IT PLEASE THE COURT. I AM KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA IN THIS APPEAL. LET ME START BY PARSING OUT SOME OF THE ISSUES THAT WERE RAISED, SO THAT THEY ARE CLEAR IN THE COURT'S MIND. THERE ARE TWO SEPARATE INEFFECTIVENESS COMPONENTS, WITH RESPECT TO SUPPRESSION ISSUES, AND THEY GOT SOMEWHAT BLENDED, AND MR. TRAGOS'S ARGUMENT, I BELIEVE, THE FIRST WAS A CLAIM OF INEFFECTIVENESS FOR FAILING TO SEEK TO SUPPRESS A 38 SPECIAL CHARTER ARMS PISTOL, FROM WHICH THE SERIAL NUMBER HAD BEEN OBLITERATED. THE SECOND SUPPRESSION ISSUE IS THE ONE THAT DEALS WITH THE BLACK BAG IN THE BARBEQUE PIT AND THE BROWN BAG IN THE GARAGE. THE .38 SPECIAL, I WOULD BRUSH OVER, BY SIMPLY SAYING IT WAS PART OF THE RES GESTAE. IT WAS INTENDED TO BE THE WEAPON THAT WOULD TAKE LISA FOTOPOULOS FOTOPOULOS'S LIFE AND PROBABLY WOULD HAVE BEEN, BUT FOR THE FACT THAT IT COULD NOT BE FOUND. THAT IT WAS HIDDEN SOMEWHERE OUT IN THE WOODS. BURIED IN AN AMMUNITION KAHN OUT IN A SWAMP, I THINK, SO THAT WAS TESTIFIED TO BY MS. HUN, IN HER TESTIMONY -- MY MS. HUNT, IN HER TESTIMONY, AND THERE WAS QUITE FRANKLY NO BASIS UPON WHICH IT COULD HAVE BEEN SUPPRESSED, BECAUSE IT WAS PAT OF THE RACE GESTAE OF THE DEFENSE, ITSELF. THE SECOND SUPPRESSION ISSUE DEALS WIT THE BLACK BAG IN THE BARBECUE PIT AND THE BROWN BAG IN THE GARAGE, AND THE TRIAL COURT VERY CLEARLY ADDRESSED THAT ISSUE, AND FOUND THAT THERE WAS NO BASIS UPON WHICH SUPPRESSION WOULD HAVE BEEN PROPER, AND THAT THERE IS NO OTHER EVIDENCE THAT HAD BEEN PRESENTED AT THE EVIDENTIARY HEARING, IF MY MEMORY SERVES, THAT WOULD OTHERWISE CALL THE DENIAL OF THAT MOTION TO SUPPRESS INTO QUESTION. THERE WAS NO EVIDENCE TO SUGGESTION MR. FOTOPOULOS OCCUPIED A POSITION THAT REQUIRED HIM TO BE FORMALLY EVICTED FROM THE RESIDENCE.

I BELIEVE HIS ARGUMENT IS PRIMARILY THAT YOU HAVE SEALED ITEMS WITHIN THE PREMISE, BOTH THE BLACK BAG IN THE BARBECUE PIT AND THE BROWN BAG IN THE GARAGE, AND THEREFORE ANY PERMISSION TO SEARCH WAS LIMITED TO WHAT COULD BE VIEWED AND NOT THE CONTENT OF PRIVATE ITEMS. COULD YOU GO RIGHT TO THOSE.

WELL, I AM NOT SURE, JUSTICE LEWIS, THAT THE LAW WOULD SUPPORT THE CONCEPT THAT A BAG IN THE OPEN, IN A BARBECUE PIT BUT STILL OUT IN THE BACKYARD, WOULD BE A REASONABLE EXPECTATION OF PRIVACY, IN THAT, IN THE CONTENTS THERE OF, BUT LET ME, AND LIKEWISE THE SAME THING WITH THE BROWN BAG AND THE MOTION TO SUPPRESS, AS TO THAT.

WAS IT, IN FACT, CLOSED, AS COUNSEL SUGGESTS?

THE BLACK BAG?

NO. THE BROWN BAG.

I DO NOT RECALL. THE EVIDENCE FROM TRIAL WOULD BE THE STATE OF. THAT I SIMPLY DON'T RECALL. I DO KNOW THAT THERE WAS A SEARCH WARRANT OBTAINED WITH RESPECT TO IT, BUT JUSTICE LEWIS AND LET ME MAKE THE ONE THING THAT IS SOMEWHAT BEING OVERLOOKED HERE, THE SUPPRESSION ISSUE WAS RAISED AT TRIAL. NOW, WHILE THERE IS A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, AS TO THE WAY IN WHICH MR. CORRENTE HANDLED THE SUPPRESSION ISSUE, IF MY MEMORY SERVES, AGAIN, AND THERE WERE A LOT OF ISSUES RAISED ON DIRECT APPEAL, I DO NOT BELIEVE THE DENIAL OF THE MOTION TO SUPPRESS WAS AN ISSUE ON DIRECT APPEAL. IN ANY EVENT, WITH RESPECT TO MR. CORRENTE, HE TESTIFIED UNEQUIVOCALLY AT THE EVIDENTIARY HEARING, THAT HE MET WITH MR. FOTOPOULOS AT LENGTH, TO DETERMINE THE FACTS AND CIRCUMSTANCES WITH RESPECT TO THE SUPPRESSION ISSUE, AND AS I UNDERSTAND MY OPPONENT'S ARGUMENT, IT IS THAT HE DIDN'T PRESENT EVIDENCE AT THE HEARING ON THE MOTION TO SUPPRESS, AND SINCE THAT IS THE CASE, WE COME DOWN TO A TACTICAL DECISION BY TRIAL COUNSEL, WHO TESTIFIED AT THE EVIDENTIARY HEARING, THAT WAS CONDUCTED AFTER THE REMAND, THAT HE HAD RESEARCHED THE LAW. HE HAD INVESTIGATED THE FACTS AND CIRCUMSTANCES FROM MR. FOTOPOULOS, AND IT WAS A LEGAL RATHER THAN A FACTUAL ARGUMENT AGAINST OR RATHER IN FAVOR OF SUPPRESSING THIS EVIDENCE. AND I WOULD SUGGEST THAT THE DETERMINATION OF WHICH WITNESSES TO CALL AND HOW ONE ARGUES A MOTION TO A COURT, ESPECIALLY WHEN IT IS DONE FOLLOWING FULL INVESTIGATION AND RESEARCH, IS ONE OF THOSE EXAMPLES OF TRIAL STRATEGY, AND WHILE MY OPPONENT, OBVIOUSLY, WOULD HAVE ARGUED THE MOTION DIFFERENTLY, THAT IS NOT THE STANDARD. THE STANDARD IS WHETHER MR. CORRENTE'S PERFORMANCE WAS CONSTITUTIONALLY ADEQUATE, AND AS THE TRIAL COURT FOUND ON THIS 3.850 MOTION, AFTER HEARING ALL THE EVIDENCE, IT WAS, AND I WOULD SUBMIT TO THE COURT THAT THAT IS THE END OF THE INQUIRY. WHETHER OR NOT THERE IS ANOTHER WAY TO DO IT IS NOT THE STANDARD. IT WAS THE, THE STANDARD IS WAS HIS PERFORMANCE REASONABLE? IT WAS. THAT IS THE END OF IT. FURTHERMORE, THERE HAS BEEN NO BASIS ADVANCED, UPON WHICH IT COULD HAVE BEEN SUPPRESSED, ANYWAY, AGAIN, AS THE TRIAL COURT FOUND. WITH RESPECT TO MISS HUNT, THE TRIAL COUNSEL TESTIFIED, AT THE EVIDENTIARY HEARING, AGAIN, THAT HE ATTENDED MS. HUNT'S SENTENCING PROCEEDING. HE TOOK HER DEPOSITION FOR NINE HOURS. THE ACTUAL DURATION OF THE DEPOSITION DIDN'T FIND ITS WAY INTO JUDGE HAMMOND'S ORDER, BUT THE TESTIMONY WAS THAT IT LASTED SOME NINE HOURS. HE KNEW WHAT HUNT'S TESTIMONY WAS GOING TO BE. HE FORMULATED HIS STRATEGY FOR CROSS-EXAMINATION OF MS. HUNT AT THE TIME, AND, AGAIN, THAT IS A REASONABLE STRATEGIC DECISION, UNDERTAKEN AFTER THE APPROPRIATE INVESTIGATION, IF YOU WILL.

IT SEEMS THAT THIS PRIMARY THRUST, THOUGH, IS THAT IT IS THE CONDUCT OF THE STATE AND THE PROSECUTOR, IN TAKING INCONSISTENT POSITIONS, MORE SO THAN THE METHOD OF CROSS-EXAMINATION, I BELIEVE. WHERE DOES THAT LEAVE US, IF WE WOULD CONCLUDE THAT, REALLY, THE STATE PRESENTED TWO DIFFERENT CASES? MISS HUNT'S CASE WAS, MS. HUNT IS THE PERPETRATOR OF ALL OF THESE ACTIONS, AND IN THE CASE WE ARE LOOKING AT TODAY, IS THAT SHE WAS NOT HIS PAWN, AND MR. FOTOPOULOS IS REALLY THE DOMINANT FACTOR CARRYING OUT ALL OF THESE HORRENDOUS EVENTS.

THAT IS ABOUT SEVEN QUESTIONS IN ONE.

WHERE DO WE GO?

I UNDERSTAND.

EXPLAIN THE TWO DIFFERENT SIDES. IT IS REALLY ONE QUESTION. THAT IS HIS ARGUMENT. WHAT IS THE STATE'S RESPONSE, THAT THE STATE CAN ENGAGE IN THIS KIND OF CONDUCT?

THE STARTING POINT FOR THAT IS FOR AND LIGHTCAL PURPOSES, I WOULD SUBMIT TO THE -- FOR ANALYTICAL PURPOSES, I WOULD SUBMIT TO THE COURT, IS THE STARTING POINT IS THE SENTENCING ORDER IN WHICH MR. FOTOPOULOS WAS SENTENCED TO DEATH FOR THE MURDER OF BRIAN CHASE AND KEVIN RAMSEY. IN THAT SENTENCING ORDER, THE JUDGE EMPHASIZED THAT MR. FOTOPOULOS PURSUED THE ACCOMPLICE MITIGATOR AS ONE OF THE STATUTORY MITIGATORS THAT HE ADVANCED IN MITIGATION, AND JUDGE FOXMAN FOUND, AND THEY ARE BOTH RATHER SHORT, AND WITH THE COURT'S INDULGENCE, WITH RESPECT TO THE RAMSEY MURDER, THE COURT FOUND THAT, IN, AND I AM QUOTING IN BOTH MURDERS, FOTOPOULOS WAS THE CAPTAIN AND CODEFENDANT HUNT WAS THE LIEUTENANT. THE DEFENDANT, FOTOPOULOS'S, PARTICIPATION WAS ANYTHING BUT MNOR. HE PLANNED THE KILLING, VIDEOTAPES IT, AND ADMINISTERED THE CAN YOU DAY FLORIDA. THE INDIVIDUAL -- THE KOUP DE. GRAS. THERE HAS BEEN SOME QUESTION, AND I HAVE LOST IN MY OWN MIND ABOUT OW MANY ..22 CALIBER SHOTS HE RECEIVED, BUT THE TESTIMONY HAS ALWAYS BEEN THAT THE FINAL FATAL SHOT WAS FIRED BY THE DEFENDANT FROM AN AK-47 INTO THE BACK OF MR. RAMSEY'S HEAD. WITH RESPECT TO BRIAN CHASE, THE COURT, AGAIN, JUDGE FOXMAN STATED THIS COURT STATED THIS COURT FINDS THAT, IN BOTH MURDERS, MR. FOTOPOULOS WAS THE CAPTAIN AND HUNT WAS THE LIEUTENANT. IT WAS DEFENDANT FOTOPOULOS WHO MADE, QUOTE, MEATLOAF, CLOSE QUOTE, OF CHASE, AND ADDED THE FINISHING SHOT. MR. CHASE WAS SHOT SEVERAL TIMES WITH A 9 MM AND THEN WAS SHOT IN THE HEAD AFTER HE WAS DOWN.

BUT THE JUDGE'S ORDER, ONLY WITH REGARD TO EVIDENCE IN THIS CASE, REALLY RESPOND TO THE ARGUMENT THAT COUNSEL DID NOT PRESENT WHAT THE STATE HAD DONE IN THE HUNT CASE. DOES THAT -- I HEAR WHAT YOU ARE SAYING.

I UNDERSTAND WHERE YOU ARE GOING, JUSTICE LEWIS. WITH RESPECT TO HUNT, AND AGAIN, I WOULD POINT OUT AND RECALL THE COURT'S, REFRESH THE COURT'S MEMORY, THE DEATH SENTENCE THAT HUNT RECEIVED WAS VACATED AND SHE ULTIMATELY RECEIVED A LIFE SENTENCE. NOW, WITH RESPECT TO THE, QUOTE, INCONSISTENT POSITION, CLOSE QUOTE, CLAIM, THE STATE OF THE LAW IN THIS STATE, FROM THIS COURT, IN PARKER, 542 SO.2D 356, IS THAT UNLESS IT IS INCONSISTENT EVIDENCE, IT DOES NOT STATE A CLAIM FOR RELIEF. WE HAVE ARGUMENT HERE. WE DO NOT HAVE INCONSISTENT EVIDENCE. WE HAVE DIFFERING POSITIONS TAKEN IN ARGUMENT, BY THE STATE.

WAS JUDGE FOXMAN THE SAME JUDGE THAT SENTENCED HUNT?

YES, MA'AM. HE WAS.

SO IF WE LOOKED AT THE ORIGINAL SENTENCING ORDER OF HUNT, WE WOULDN'T FIND, I GUESS MY CONCERN WOULD BE IS IF THE STATE WAS SAYING, IN ONE CASE, HUNT IS THE MASTERMIND, AND IN ANOTHER CASE SAYING FOTOPOULOS IS THE MASTERMIND, AND TWO SENTENCING ORDERS FIND BOTH PEOPLE TO BE THE MASTERMIND, THAT WOULD BE INCONSISTENT. DO YOU KNOW WHAT THE FINDING WAS IN HUNT, AS TO HER?

WITH RESPECT TO THE FIRST SENTENCING ORDER, I DO NOT REMEMBER, JUSTICE PARIENTE. WITH RESPECT TO THE SECOND SENTENCING ORDER, THAT, AS YOU KNOW, JUDGE, MISS HUNT GOT, RECEIVED SENTENCE, GUILT AND SENTENCE STAGE RELIEF AND WAS SENT BACK FOR ANOTHER TRIAL.

SO IT WAS JUDGE FOXMAN, THOUGH, THAT HEARD WHATEVER WENT ON.

JUDGE FOXMAN HEARD EVERYTHING AND STILL FOUND THAT FOTOPOULOS WAS THE CAPTAIN AND HUNT WAS THE LIEUTENANT.

SO THERE WAS NO REASON FOR THE ATTORNEY TO BRING FORTH WHAT HAPPENED IN THE, HUNT'S SENTENCING,AT LEAST FOR THE SENTENCING JUDGE, SINCE IT WAS THE SAME SENTENCING JUDGE.

IT WAS ALREADY THERE. NOW, WITH RESPECT TO THE SECOND HUNT PROCEEDING, AND I DON'T KNOW IF THE COURT IS WANTING TO HEAR ABOUT THIS OR NOT, BUT THERE IS, IN FACT, A SENTENCING ORDER THAT WAS ISSUED BY JUDGE SANDERS IN THAT CASE, THAT FINDS SUBSTANTIAL MITIGATION WITH RESPECT TO MISS HUNT, WITH RESPECT TO MR. FOTOPOULOS. WE HAVE, HAD, AT THE TIME OF SENTENCING AND STILL HAVE NO SIGNIFICANT MITIGATION. WE HAVE MITIGATION THAT HE WAS A GOOD SON, THAT HE WAS A HARD WORKER, THAT HE HAD A GOOD SENSE OF HUMOR, THAT HE HAD A MASTER'S DEGREE. THAT IS THE SUM TOTAL OF THE MITIGATION THAT WAS PRESENTED, AND THE REASON THERE WAS NO MORE WAS BECAUSE, AS MR. CORRENTE TESTIFIED AT THE EVIDENTIARY HEARING, FOTOPOULOS DIDN'T WANT IT PUT ON. IT WOULDN'T HELP HIM. HE WASN'T INTERESTED IN THE PENALTY PHASE.

IS IT THE STATE'S POSITION THAT, IN PROSECUTING A AND B, THE STATE CAN TAKE, IN A'S TRIAL THE POSITION THAT A WAS THE SHOOTER, AND GET A CONVICTION ON A, AND TURN AROUND AND IN TRIAL B TAKE THE POSITION THAT B IS THE SHOOTER AND GET A CONVICTION THERE?

I DON'T THINK WE COULD DO THAT. I THINK THAT IS WHAT PARKER SAYS WE CANNOT DO. WE CANNOT TAKE FACTUALLY -- WE CAN'T TAKE INCONSISTENT POSITIONS, AS TO THE BEDROCK FACTS. IN OTHER WORDS, I CAN'T, AS YOU SAY, COME IN AND SAY, IN THIS CASE, LADIES AND GENTLEMEN OF THE JURY, DEFENDANT A FIRED THE FATAL SHOT. THEN I CAN'T COME BACK AND TWO WEEKS LATER, WITH DEFENDANT B, AND SAY, LADIES AND GENTLEMEN BE OF THE JURY -- LADIES AND GENTLEMEN OF THE JURY, THE STATE'S POSITION IS DEFENDANT B FIRED THE FATAL SHOT AND ATTEMPT TO PROVE THAT UP. I CAN'T DO THAT. HOWEVER, I CAN ARGUE RELATIVE CULPABILITY AS TO BETWEEN TWO CODEFENDANTS. IT IS ONE THING TO TALK ABOUT INCONSISTENT EVIDENCE. IT IS ANOTHER THING TO TALK ABOUT AN INCONSISTENT ARGUMENT. THE JURY HAD --

I GATHER THAT THAT IS WHAT YOUR OPPOSING COUNSEL IS SAYING THAT OCCURRED. AND THAT IS WHAT HE WANTED, HE IS SAYING THAT COUNSEL IS INCOMPETENT, BECAUSE IT DIDN'T BRING THIS OUT, THAT THE STATE TOOK THESE INCONSISTENT POSITIONS ON THE EVIDENCE.

I UNDERSTAND THAT THAT --

THAT HE HEARD IT ALL, HEARD THE STATE TAKE THIS POSITION, AND THEN, IN THE TRIAL OF HIS CLIENT, COMPLETELY IGNORED THE FACT. NEVER BROUGHT THAT TO THE JURY'S ATTENTION. WAIT. THE STATE SAID, IN TRIAL A, THAT THIS OCCURRED. I GATHER THAT IS WHAT OPPOSING COUNSEL IS ARGUING.

I BELIEVE THE ANSWER TO THAT, JUSTICE SHAW, IS FOUND, AGAIN, WITHIN MR. CORRENTE'S TESTIMONY, WHICH WAS THAT HE BELIEVED, IF I AGAIN, I AM NOT MIXING THIS CASE WITH SOMETHING ELSE, AND I DOUBT THAT I AM, SINCE IT IS THE ONLY VIDEOTAPED MURDER CASE I HAVE EVER HAD, THAT HUNT'S ACTIONS IN THE WRAPS I MURDER -- IN THE RAMSEY MURDER, AS SHOWN ON THE VIDEOTAPE, SPOKE TO HER, WHAT DO I WANT TO USE, I DON'T WANT TO SAY CULPABILITY BUT HER DEGREE OF PARTICIPATION AND WHETHER OR NOT SHE WAS DOMINATED, WITH RESPECT TO THAT MURDER. I BELIEVE MR. CORRENTE TESTIFIED THAT THE CASE WAS MORE THAN DEIDRE HUNT. DEIDRE HUNT'S TESTIMONY. YOU HAD THE VIDEOTAPE. YOU HAD THE EVIDENCE AND THE APPEARANCE OF WHAT WENT ON IN THE MURDER ON THE VIDEOTAPE AND HOW DEIDRE HUNT HANDLED HERSELF, HOW SHE PRESENTED HERSELF. SO, AGAIN, WHILE, PERHAPS, ONE COULD HAVE DONE IT THIS WAY, WHAT MIGHT HAVE BEEN IS, AGAIN, NOT THE STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL. THE STANDARD IS, WAS THE DECISION REASONABLE, AND I WOULD SUBMIT TO THE COURT THAT, IN THIS SIFERCK STANCE -- CIRCUMSTANCE, WHICH IS THE ONLY ONE THAT MATTERS, IT WAS, BECAUSE YOU HAD THAT VIDEOTAPE EVIDENCE.

COULD YOU ADDRESS THE, I GUESS WHAT WOULD BE THE NEWLY-DISCOVERED EVIDENCE CLAIM, OR THAT THE JURY THAT SENTENCED OR RECOMMENDED SENTENCE OF DEATH FOR FOTOPOULOS HAD, BEFORE IT, HUNT'S DEATH SENTENCE. NOW SHE HAS BEEN GIVEN A LIFE SENTENCE. COULD YOU ADDRESS THE CASE LAW THAT TALKS ABOUT WHEN RESENTENCING IS APPROPRIATE UNDER THOSE CIRCUMSTANCES, AND WHY IT IS NOT APPLICABLE IN THIS CASE.

YOUR HONOR, THE ISSUE TURNS ON THE RELATIVE CULPABILITY OF THE DEFENDANTS. UNDER THESE FACTS, AND I AM COMING BACK TO ELABORATE UPON THIS, BUT UNDER THESE FACTS, THE CULPABILITY OF THESE TWO DEFENDANTS, AS SHOWN BY THE FACTS, HAVE NOT CHANGED, HAS NOT CHANGED, RATHER. MR. FOTOPOULOS WAS STILL THE MASTERMIND, THE DRIVING FORCE, THE PRIME MOTIVATE OR, AND THE PERSON WITH SOMETHING TO GAIN FROM THESE MURDERS. HE IS STILL THE ONE WHO PLANNED THEM. HE IS STILL THE ONE WHO GOT THEM CARRIED OUT OR CARRIED THEM OUT. I WAS THINKING IN TERMS OF LISA FOTOPOULOS, WHO FORTUNATELY DID NOT DIE.

HOW WAS THE FACT THAT SHE GOT THE DEATH SENTENCE, WAS THAT ARGUED TO THE JURY BY EITHER THE PROSECUTION OR THE STATE IN THE FOTOPOULOS SENTENCING? LOOK, THIS WOMAN WHO WAS NOT AS -- WAS NOT THE MASTERMIND, GOT THE DEATH SENTENCE. SURELY MR. FOTOPOULOS SHOULD BE, SHOULD RECEIVE THE DEATH SENTENCE.

THE JURY WAS AWARE THAT MS. HUNT WAS UNDER TWO SENTENCING OF DEATH. I DO NOT BELIEVE THAT THE ARGUMENT WAS MADE IN THE FOTOPOULOS CASE IN CLOSING ARGUMENT.

YOU ARE SAYING IT WASN'T USED AT ALL, BY THE PROSECUTION OR THE JUDGE, IN CONSIDERING, OR THE JURY, IN CONSIDERING WHETHER MR. FOTOPOULOS SHOULD RECEIVE A DEATH SENTENCE?

I DON'T RECALL THAT ARGUMENT, JUSTICE PARIENTE. I TRULY DON'T.

HOW IS IT THAT HER DEATH SENTENCES CAME BEFORE THE JURY, IN THE, IN OTHER WORDS --

WHEN SHE TESTIFIED. I MEAN, SHE HAD --

WHEN SHE WAS EXAMINED ON DIRECT OR CROSS, IT HAD COME OUT THAT SHE --

IT CAME OUT WHEN SHE TESTFIED I BELIEVE ON DIRECT, JUSTICE ANSTEAD, BUT I WOULDN'T SWEAR UP AND DOWN THAT THAT IS WHEN IT CAME OUT. I BELIEVE THAT IT WAS ON DIRECT.

BUT YOU DON'T BELIEVE THAT IT WAS ARGUED TO THE JUDGE OR THE JURY, AS A REASON FOR A DEATH SENTENCE, IN FOTOPOULOS'S CASE, THAT SHE HAD RECEIVED TWO DEATH PENALTIES.

NOT IN THE FORM THAT THE QUESTION WAS PLACED, NO, YOUR HONOR. I DON'T BELIEVE I DON'T BELIEVE THEY DID THAT.

AND IT IS YOUR POSITION THAT, IN THIS CASE, WE ARE NOT DEALING WITH AN EQUALLY OR MORE CULPABLE CODEFENDANT THAT HAD THEIR DEATH SENTENCE REDUCED TO LIFE, THAT THIS IS A LESS CULPABLE CODEFENDANT THAT HAS HAD HER SENTENCE. IS THAT?

THAT'S CORRECT, YOUR HONOR. ALL OF THE EVIDENCE, BOTH AT THE TIME OF FOTOPOULOS'S TRIAL AND AT THE, AND NOW, IS THAT DEIDRE HUNT IS THE LESS CULPABLE OF THE TWO DEFENDANTS. I WOULD, ALSO, POINT OUT THAT DEIDRE HUNT'S CASE, DEIDRE HUNT IS FAR MORE MITIGATED, AND UNDER THESE, AND, AGAIN, WHILE, YOU KNOW, WHILE MITIGATION AND CULPABILITY ARE TWO DIFFERENT THINGS, SHE GOT A LESSER SENTENCE FOR WHATEVER REASON JUDGE SANDERS CHOSE TO IMPOSE THAT SENTENCE. I DON'T KNOW FOR SURE. BUT THE FACT REMAINS, AND THE UNSALEABLE FACT, THAT HAS NOT EVEN BEEN CHALLENGED, AND THERE HAS BEEN NO EVIDENCE PRESENTED AS TO IT, KONSTANTINOS FOTOPOULOS WAS THE MOST CULPABLE OF THE TWO DEFENDANTS. I AM OUT OF TIME. UNLESS THE COURT HAS ANY FURTHER QUESTIONS, I WILL STAND ON MY BRIEF.

CHIEF JUST ONE QUESTION. WHAT IS THE STATUS OF THE TRANSCRIPTS AND THE BRIEFS, WITH REGARD TO INFORMATION THAT MR. FOTOPOULOS PROVIDED HIS PRIOR COUNSEL CONCERNING THESE BAGS, PRIOR TO THE HEARING ON THE MOTION TO SUPPRESS. WAS THERE INFORMATION EXCHANGED WITH REGARD TO WHETHER MR. FOTOPOULOS EVEN OWNED THOSE BAGS, AND WHAT WAS THE NATURE OF THAT DISCUSSION, IF ANY?

I DON'T RECALL, JUSTICE LEWIS HOW SPECIFIC IT GOT, IN CONVERSATION BETWEEN MR. CORRENTE AND MR. FOTOPOULOS, AND I DON'T RECALL WHETHER THAT WAS BROUGHT OUT BY CCR, WHEN THEY CALLED MR. CORRENTE TO TESTIFY. I DO KNOW, AND I WILL STATE UNEQUIVOCALLY, THAT MR. CORRENTE TESTIFIED THAT HE MET WITH MR. FOTOPOULOS, I BELIEVE HE SAID, ON MORE THAN ONE OCCASION, TO DEVELOP THE FACTS SURROUNDING THE MOTION TO SUPPRESS. NOW, HOW DETAILED HIS TESTIMONY WAS DEVELOPED AT THE EVIDENTIARY HEARING, I DON'T REMEMBER. I APOLOGIZE. I KNOW THERE IS A REFERENCE TO THAT DISCUSSION IN MY BRIEF, BUT I DON'T, AND I JUST DON'T REMEMBER, BUT I KNOW I CITED TO THAT PAGE IN THERE. THANK YOU. MR. CHIEF JUSTICE

THANK YOU, MR. NUNNELLEY. REBUTTAL.

YES. AS TO THE QUESTION, ON POINT TWO WE READ A QUOTE THE PROSECUTOR SAID DURING CLOSING ARGUMENT. "DEIDRE HUNT IS MUCH LIKE A PERSON WHO HAS HAD A BULLET PUT TO HER CHEST AND IS LYING THERE, BLEEDING TO DEATH, KNOWING THAT SHE IS GOING DOWN FOR THE COUNT, POINTS THE ACCUSING FINGER AT THE PERSON WHO PUT HER WHERE SHE IS, NO DEALS WITH DEIDRE HUNT. DEIDRE HUNT WILL HAVE TO DEAL WITH THAT WITH HER LIFE, AND HER MAKER WILL DEAL WITH THAT, BUT THE FACT THAT SHE TOLD THE TRUTH AT A LATER TIME." THAT IS WHAT THE PROSECUTION USED HER DEATH PENALTY TO SAY, THIS IS A DEATHBED CONFESSION, POINTING THE FINGER AT KONSTANTINOS FOTOPOULOS. THEY USED THAT DEATH PENALTY, AND --

IS THAT THE MOST EXTREME STATEMENT DURING THAT CLOSING ARGUMENT?

RIGHT. I VIEW IT, BECAUSE IT IS OBVIOUSLY THAT THEY ARE USING THE DEATH PENALTY TO BOLSTER HER CREDIBILITY, THAT SHE IS GOING TO HAVE TO GO TO GOD AND FACE GOD AND SHE IS BLEEDING TO DEATH NOW, AND SHE POINTS THE FINGER AT MR. FOTOPOULOS. IN GOING BACK TO THE ORDER, THE COURT ASKED THE ORDER ABOUT WHAT THE DEATH PENALTY ORDER SAID BY JUDGE FOXMAN AND MS. HUNT, AND WHAT JUDGE FOXMAN FOUND WAS THAT DEIDRE HUNT WAS NOT ACTING UNDER EXTREME DURESS OR SUBSTANTIAL DOMINATION OF MR. FOTOPOULOS. THAT WAS HIS ORDER, WHEN HE SENTENCED HER TO DEATH, AND IF YOU GO THROUGH, AND IN THE BRIEF I HAVE GOT SOME 20 EXAMPLES OF THE STATE GOING THROUGH THE FACT IN THE HUNT CASE, CONTRADICTORY TO THE FACTS IN THE FOTOPOULOS CASE. THE ONE HE MENTIONED HERE WAS THE KOUP DE GRAS. IF YOU LISTEN TO THE HUNT CASE, THE COUP DE GRAS WAS DONE BY HUNT. HUNT WAS THE ONE THAT SHOT FATALLY IN THE HEAD BUT NOW IF YOU READ THE PROSECUTOR'S STATEMENT, MR. FOTOPOULOS WAS THE ONE THAT PUT THE SHOT IN THE HEAD.

WHAT DOES THE STATE SAY ABOUT THE COUP DE GRAS.

I DON'T THINK THAT THE SENTENCING ORDER COULD BE PRESENTED TO THE JURY, BUT I DO THINK THAT WHAT SALERNO SAID AS REGARDS THE SENTENCING POSITIONS WAS PRESENTED TO THE JURY.

DID YOU READ THE SENTENCING ORDER TRANSCRIPTS?

IT MUST BE, BECAUSE I QUOTED FROM IT IN MY BRIEF, SO I MUST HAVE READ THE SENTENCING ORDER.

IT WAS PRESENTED AT TRIAL?

PROBABLY WHEN I GOT THAT, QUITE FRANKLY, IS WHEN HE ORALLY SENTENCED HER, AS PART OF THE RECORD, IS HIS ORAL PRONOUNCEMENTS AT THE SENTENCING.

HERE, IN THIS CASE IF YOU TAKE PARKER, WHICH WAS CITED, THAT THERE IS MORE THAN JUST TAKING INCONSISTENT POSITIONS, THAT THERE IS ACTUALLY AN INCONSISTENT PRESENTATION OF FACTUAL, OF THE FACTUAL SITUATION, AS TO WHO WAS THE, WHO DELIVERED THE FINAL SHOT?

SURE. I, IN THE RECORD, PAGE 854, THE PROSECUTOR INDICATES THAT DEIDRE HUNT'S FINAL SHOT TO RAMSEY'S HEAD WAS THE FATAL SHOT, THAT CERTAINLY --

AN AND INCONSISTENT FINDING IN THE TWO ORDERS?

I DIDN'T COMPARE. I JUST COMPARED THE FRIPTS AND WHAT THE STATE -- THE TRANSCRIPTS AND WHAT THE STATE PRESENTED, BUT, AGAIN, I DIDN'T BELIEVE IT WAS THE ORDERS THAT MATTERED. I JUST BELIEVE IT WAS WHAT THE STATE PRESENTED.

WOULDN'T THAT BE CRITICAL?

NO. BECAUSE THE COURT IS NOT A PARTY. THE REASON SALERNO SAYS THAT IS BECAUSE PARTIES TO A LAWSUIT CANNOT PRESENT INCONSISTENT POSITIONS, AND IF A PARTY PRESENTS AN INCONSISTENT POSITION, THEN YOU CAN USE THAT INCONSISTENT POSITION. THE PARTY HERE IS THE STATE NOT THE COURT. JUDGES FRANKLY, GET PRESENTED WITH FACTS, JUST LIKE AN ISSUE, I KNOW THAT THE BLACK JUROR ISSUE, JUST LIKE THE BLACK JUROR ISSUE. IT WAS PRESENTED TO THE JUDGE AND THE JUDGE BOUGHT IT, TOTALLY WRONG, A COMPLETE FABRICATION OF WHAT THOSE JURORS SAID. THE RECORD SHOWS THAT COMPLETE FABRICATION, BUT THE JUDGE BOUGHT IT, SO THE JUDGE'S ORDER ISN'T THE ISSUE HERE. IT IS WHAT THE STATE DID AND WHAT THE STATE PRESENTED.

WOULD YOU COMMENT UPON MY LAST QUESTION TO OPPOSING COUNSEL, AS FAR AS THE STATUS OF THE RECORD, WITH REGARD TO THE INFORMATION THAT FOTOPOULOS PROVIDED TO HIS TRIAL COUNSEL, PRIOR TO THE MOTION TO SUPPRESS, WITH REGARD TO THE OWNERSHIP OF SOME OF THAT, SOME OF THE MATERIALS THAT WERE LATER FOUND.

I WISH I COULD ANSWER IT, BUT I PROBABLY WILL GIVE YOU AN ANSWER JUST AS ADEQUATE AS THE STATE'S. I DON'T RECALL.

WOULD IT NOT BE CRITICAL, THOUGH, IN ANALYZING THE PERFORMANCE OF HIS COUNSEL, WHAT HIS CLIENT SAID TO HIM? FOR EXAMPLE IF HIS CLIENT INFORMED HIM, WELL, THOSE WERE NOT EVEN MY BAGS, HOW WOULD HE HAVE A PRIVACY INTEREST WITH REGARD TO --

I THINK IT IS CLEAR THAT MR. CORRENTE KNEW THAT THOSE BAGS BELONGED TO HIM. THAT IS CLEAR. THAT HE KNEW THEY BELONGED TO HIM AND THAT HE WAS EXPRESS AGO OWNERSHIP INTEREST, BECAUSE WHAT THE STATE ARGUED AT THE MOTION TO SUPPRESS WAS THAT HE ABANDONED THEM. YES, THEY WERE HIS, BUT HE HAD ABANDONED THEM BECAUSE HE LEFT THE HOUSE. HE LEFT THE HOUSE, ALL RIGHT, BECAUSE HE WAS IN PRISON. HE WAS IN JAIL. THAT ISSUE WAS RAISED. MR. CHIEF JUSTICE

THANK YOU, COUNSEL. THANK YOU, COUNSEL, FOR YOUR ASSISTANCE IN THE CASE. THE COURT WILL TAKE ITS MORNING RECESS. THE COURT WILL BE IN RECESS FOR 15 MINUTES.