MAY IT PLEASE THE COURT. I AM JOE McDERMOTT, REPRESENTING THE APPELLATE GARY LAWRENCE. THIS IS APPEAL FROM A DENIAL OF A 3.850 IN DADE COUNTY. THE COURT BELOW DID GRANT A PARTIAL EVIDENTIARY HEARING AS TO TWO ISSUES OF WHETHER OR NOT THERE WAS AN ADEQUATE WAIVER OR EXPLANATION OF COMPETENT COUNSEL AS TO DEFENDANT'S RIGHT TO TESTIFY AND, ALSO, WHETHER COUNSEL WAS INEFFECTIVE OR ENGAGING IN SO-CALLED DEFENSE OF CONCESSION OF GUILT TO A LESSER-INCLUDED OFFENSE. THE TRIAL COURT, IN EFFECT HE CAN'T, RULED AGAINST -- IN EFFECT, RULED AGAINST US AND IN HOLDING BOTH POINTS THAT, HELD THAT THERE SHOULD NOT HAVE BEEN A WAIVER OF THE DEFENDANT'S TESTIFYING OR THE ABSENCE OF GUILT. WE ARE ASKING THE COURT TO AGAIN MAKE THAT REQUIREMENT, BECAUSE I THINK THAT IS A MORE REALISTIC APPROACH TO DEALING WITH EITHER ONE OF THOSE ISSUES. I THINK MANY TRIAL COURTS ALREADY DO THAT, AND IN THE SUBSTANCE OF WHETHER A DEFENDANT TESTIFIES OR NOT, TO INQUIRE OF HIM, PARTICULARLY AS IN THIS CASE, WHERE THE DEFENDANT IS OF LIMITED INTELLIGENCE. THE SERIOUS, MORE SERIOUS ISSUES WE THINK, INVOLVE THE DENIAL OF AN EVIDENTIARY HEARING, PARTICULARLY AS TO THE ADEQUACY OF COUNSEL IN PRESENTING, IN EITHER THE GUILT OR THE PENALTY PHASES, THE ALCOHOL SITUATION INVOLVED WITH THE DEFENDANT. THE DEFENSE, OF COURSE, WAS RAISED, OF INTOXICATION, AND AN INSTRUCTION GIVEN ON. THAT WE FEEL THE RECORD BELOW WAS ENTIRELY DEFICIENT IN SHOWING THAT COUNSEL WENT FAR ENOUGH, AND WE ARE DEALING, HERE WITH ALLEGATIONS OF A 3.850 MOTION, WHETHER THAT IS SUFFICIENT TO GRANT US A HEARING AND WE THINK, OBVIOUSLY, IT DOES.

WELL, DOESN'T THE TRIAL RECORD, THOUGH, SHOW THAT ALCOHOL, THE INTOXICATION WAS A MAJOR FEATURE OF THIS TRIAL, ON THE DEFENSE SIDE, AND AS YOU SAY THERE WAS AN INSTRUCTION. WASN'T, THIS REALLY, THE WHOLE THRUST OF THE DEFENSE? THAT IS THAT IN ATTEMPTING TO SAVE THIS MAN'S LIFE, THAT THE DEFENSE LAWYER SAID, YES, SOMETHING TERRIBLE HAS HAPPENED HERE, AND THAT HIS CLIENT IS RESPONSIBLE FOR IT, BUT EVERYBODY WAS DRINKING AND HIS CLIENT, ESPECIALLY, WAS, YOU KNOW, THE CIRCUMSTANCES OF THE VICTIM HAVING RELATIONS WITH HIS WIFE, AND THEN THE ALCOHOL, WASN'T THAT THE ENTIRE THRUST, SO DOESN'T THE RECORD, REALLY, AFFIRMATIVELY SHOW THAT DEFENSE COUNSEL, INDEED, DID A THOROUGH JOB OF PRESENTING THAT ISSUE?

I DISAGREE.

SO CHARACTERIZE --

BECAUSE IN THE --

WHAT THE DEFSE LAWYER DID PRESENT, THEN, WITH REFERENCE TO WHETHER OR NOT HIS CLIENT WAS INTOXICATED.

IN THE GUILT PHASE, HE PRESENTED STRICTLY LAY WITNESSES NO EXPERTS AT ALL IN THE GUILT PHASE. THE ONLY TIME THE EXPERTS WAS PRESENTED ON THE DEFENSE OF INTOXICATION, WAS IN THE PENALTY PHASE.

OKAY. WHAT EVIDENCE WAS PRESENTED BY INTOX INDICATION? -- INTOXICATION?

THAT THE DEFENDANT HAD INGESTED A LARGE AMOUNT OF ALCOHOL THE DAY OF THE OFFENSE, THROUGH LAY WITNESSES. VERY LITTLE WAS, EVEN IN THE PENALTY PHASE, THE ONE PSYCHOLOGIST BELIEVED -- PSYCHOLOGIST, I BELIEVE DR. LARSON, JUST TAPPED ON THAT ISSUE AND SAID IF YOU HAVE ALCOHOL IN THE EQUATION, IT MAKES IT WORSE WITH THE DEFENDANT'S MENTAL SITUATION.

SO HAVE YOU ALLEGED IN YOUR MOTION THAT YOU HAVE OTHER EXPERTS THAT WOULD SAY THUS AND SO, THERE BY CHANGING THE EQUATION?

NO, BUT I DON'T HAVE TO UNDER THE CASE LAW. I DON'T NEED TO DO. THAT I HAVE SUFFICIENTLY LAID IT OUT THAT IT WAS INADEQUATE, BASED ON --

BUT DON'T YOU HAVE TO AT LEAST LAY OUT WHY IT WAS INADEQUATE? IN OTHER WORDS, INADEQUACY USUALLY IS A COMPARATIVE THING. THAT IS THAT THEY DIDN'T PRESENT THEY PRESENT THE THUS AND SO, BUT THEY DID SO AT A TIME WHEN THERE WAS ALL THIS OTHER EVIDENCE THAT COULD HAVE BEEN PRESENTED THAT THEY DIDN'T PRESENT, AND SO WHAT OTHER EVIDENCE WAS THERE THAT YOU ARE CLAIMING OR THAT YOU HAVE ALLEGED WAS THERE THAT THEY DIDN'T PRESENT?

AS TO THE --.

AS TO THE ISSUE ABOUT ALCOHOL.

AS CITES TO THE ALCOHOL. I WOULD CITE TO THE COURT FREEMAN VERSUS STATE, SO.2D 1085 BUT IN THAT CASE AN EXPERT WAS USED BUT NOT SPECIFICALLY AN EXPERT PSYCHOLOGIST WHO WOULD TESTIFY TO THE EFFECTS OF ALCOHOL AND DRUG ABUSE, AND THE COURT SAID, THERE, THERE IS A REASONABLE DOUBT AS TO THE FT SUCH A WITNESS MIGHT HAVE HAD ON THE JURY'S RECOMMENDATION.

BUT THERE, ISN'T THE CONTEXT OF THAT THAT THERE WAS A WITNESS THAT WOULD TESTIFY AS TO CERTAIN EFFECTS AND EVERYTHING, BUT YOU HAVEN'T ALLEGED THAT HERE, HAVE YOU?

WELL, WE FEEL THE 3.850 MOTION, IF I MIGHT REFER TO IT --

I MEAN, SURELY THE MOTION HAS TO ALLEGE SUFFICIENT FACTS, FOR A JUDGE TO SAY, WELL, NOW, THEY HAVE ALLEGED SOMETHING HERE THAT WOULD HAVE MADE A BIG DIFFERENCE.

WLL, I HAVE ALLEGED DEFENDANT'S COUNSEL IS NOT SUFFICIENTLY PREPARED FOR THE GUILT OR PENALTY PHASE OF THE TRIAL AND PRESENTED INADEQUATE EVIDENCE ON HIS MENTAL DEFICIENCY AND LONG STANDING USE OF INTOXICANTS AND DRUGS. THE DEFENSE OF INTOXICATION WAS IN EFFECTIVELY PRESENTED. HE FURTHER FAILED TO ESTABLISH HIS EXCESSIVE USE OF IN TOX CAN'TS AT THE TIME -- OF INTOXICANTS AT THE TIME OF THE HOMICIDE AND FAILED TO SHOW THE JURY AS TO THE USE OF INTOXICANTS.

YOU DID, THOUGH, PRESENT SEVERAL LAY WITNESSES THAT STATED THAT HIS DEFENSE WAS INTOXICATION. ISN'T THAT CORRECT?

YES. LAY WITNESSES.

HE PRESENTED TESTIMONY TAT THE DEFENDANT WAS INTOXICATED.

YES. WE SAY NOT ENOUGH.

WELL, WHAT I AM TRYING TO, WHAT, HOW ARE WE TO MEASURE AN ALLEGATION LIKE THAT, NOT ENOUGH UNLESS YOU SAY, AT THE SAME TIME THAT HE PRESENTED THIS, THERE WAS AN EXPERT OUT THERE THAT WOULD HAVE SAID THAT THIS PERSON COULDN'T HAVE MOVED, UNDER THE CIRCUMSTANCES OF THE AMOUNT OF INTOXICATION HE HAD OR, YOU KNOW THAT HIS MIND --

BECAUSE THAT IS WHY WE HAVE AN EVIDENTIARY HEARING. THE TRIAL COURT SHOULDN'T SUMMARILY DENY IT, JUST BASED ON THAT, AND THE CASE LAW, I DON'T KNOW WHICH ONE IT IS. I THINK IT IS -- IT IS EITHER FREEMAN OR GASKINS AT 737 SO.2D 509, ONE OF THEM CITED IN THE BRIEF, AS REGARDS THAT SECOND ISSUE, THAT WE DO NOT HAVE TO NAME A WITNESS.

WE HAVE SAID THAT YOU DON'T HAVE TO NAME WITNESSES, BUT WE HAVE NOT SAID, THAT DOESN'T MEAN THT OU DO'TAVE TOHE SUFFICIENT ALLEGATIONS TO DEMONSTRATE THAT IT WOULD HAVE BEEN DIFFERENT, THAT IT WOULD HAVE MADE A DIFFERENCE, AND WHAT THAT WAS. ISN'T THERE A DIFFERENCE BETWEEN HAVING TO NAME WITNESSES OR SUBMIT AFFIDAVITS, FOR THAT MATTER, AND HAVING SUFFICIENT ALLEGATIONS THAT, AT THE SAME TIME THEY PRESENTED THIS INADEQUATE CASE, THAT THE ADEQUATE CASE WOULD HAVE CONSISTED OF THUS AND SO?

BUT NONE OF THE WITNESSES IN THE PENALTY PHASE TESTIFIED TO THE COMBINATION OF ALCOHOL AND THE MENTAL DISTURBANCE OR THE MENTAL ASPECT. NO EXPERTS.

BUT, AGAIN, HAVE YOU ALLEGED THAT THERE WERE WITNESSES THERE, READY TO TESTIFY, TO WHATEVER, THAT WOULD HAVE MADE THIS BIG DIFFERENCE? THAT IS THAT THERE WAS EVIDENCE THAT THE LAWYER DIDN'T PRESENT, THAT, THROUGH A PROPER INVESTIGATION AND GOOD LAWYERING WOULD HAVE MADE A DIFFERENCE IN THE CASE?

WELL, I HAVE SUGGESTED, NOT SUGGESTED, I HAVE ALLEGED IN THE MOTION THAT THE DEFENSE ATTORNEY DID NOT ATTEMPT TO PRESENT ANY WITNESSES OR OTHER EVIDENCE OF DEFENDANT'S MENTAL OR EMOTIONAL DISTURBANCE.

AND WHAT WOULD THAT EVIDENCE HAVE BEEN?

AT THE VERY MINIMUM, THE PSYCHOLOGIST THAT EVEN TESTIFIED IN THE PENALTY PHASE. AT THE VERY MINIMUM.

THE JUDGE'S BASIS, DID THE JUDGE SET OUT HIS BASIS FOR DENYING AN EVIDENTIARY HEARING ON THIS?

I THINK HE EXPLORED THAT THERE WAS EVIDENCE PRESENTED.

HE POINTED TO --

THAT ENOUGH HAD BEEN PRESENTED.

BUT HE BELIEVED THE RECORD --

THAT IS NOT THE LAW IN DENYING AN EVIDENTIARY HEARING. 9 LAW A -- THE LAW DIDN'T WAIVE. THAT.

THE LAW DOES WAIVE WHETHER IT AFFIRMATIVELY REFUTES THE CLAIM. IS THAT RIGHT? IN OTHER WORDS IF THE RECORD REFUTES A CLAIM OR BASIS ALLEGATION LIKE THAT, THAT IS REFUTING THE DENIAL.

YES, BUT --

BUT YOU THINK IT WAS WRONG.

THE COURT, IN THE PEDCASE, CITED IN THE -- IN THE PEED CASE CITED IN THE BRIEF THAT THEY HAVE TO CITE TO THE ORIGINAL MOTIONS, TO THE EXTENT THAT THEY ARE NOT REFUTED BY THE RECORD, AND IF THAT IS THE CASE, THEN WE HAVE TO HAVE AN EVIDENTIARY HEARING. THE OTHER MAIN ISSUE I WISH TO PRESENT IN THE APPEAL, IS THE CLOSING ARGUMENT REFERRED TO BY THE STATE. IN FIVE SEPARATE INSTANCES, THEY USED THE WORD "UNCONTROVERTED", AND THAT SIMPLY MEANS THAT IT WAS NOT CONTESTED, IT WASN'T PROVED, IT WASN'T CONTROVERTED, ABOUT CERTAIN CONDUCT OF THE DEFENDANT. MAINLY THAT, THE REFERENCE ALLUDES TO DEFENDANT'S STATEMENTS OR CONFESSIONS, SO-CALLED CONFESSIONS THAT HE MADE IN CUSTODY, AND WE FEEL THAT IS --

GIVE ME AN EXAMPLE OF. THAT I AM NOT SURE I UNDERSTAND BECAUSE MEAN. -- I AM NOT SURE I UNDERSTAND WHAT YOU MEAN. IN OTHER WORDS HE USED THE WORD "CONTROVERT" IN THE CONTEXT THAT THE DEFENDANT DIDN'T CONTROVERT THIS? IS THAT WHAT YOU ARE SAYING?

YES.

READ ME A PASSAGE THAT YOU ARE TALKING B ABOUT. YOUR COLLEAGUE HAS A TRANSCRIPT THERE.

THANKS. I DRAW YOUR ATTENTION TO THE FIRST PART OF THIS. ON JULY 23, IT IS UNCONTROVERTED THE VICTIM AND THE DEFENDANT WERE RUNNING AROUND SANTA ROSA COUNTY. DURING THIS TIME, IT IS UNCONTROVERTED FROM THE DEFENDANT'S OWN STATEMENT,ANT EVIDENCE, THAT THE VICTIM OB-- AND THE EVIDENCE, THAT THE VICTIM OBTAINED $200. FURTHER IT IS ALSO UNCONTROVERTED, LADIES AND GENTLEMEN, THAT THE VICTIM DID RECEIVE $200, AND THAT THE DEFENDANT IS UNEMPLOYED AND HAD NO CAR OF HIS OWN.

BUT WEREN'T THOSE ACCURATE STATEMENTS, PREDICATED ON THE RECORD?

IT MAYBE ACCURATE BUT IT IS NOT CONTROVERTED. SURE. THAT IS WHAT HE IS ARGUING, AND WHEN THE DEFENDANT DOESN'T TESTIFY, THAT DRAWS ATTENTION TO THAT FACT.

IS THAT NECESSARILY SO? I MEAN, HAVEN'T WE APPROVED, AND THE DISTRICTS COURTS OF APPEAL APPROVED, THE USE OF THE WORD "UNCONTROVERTED", AND THAT IS THAT IT IS REASONABLE TO DO THAT IF THE FACTS THAT ESTABLISH SOMETHING, AND THERE SIMPLY IS NO CONTROVERTING EVIDENCE ABOUT THAT, THAT IT IS ALL RIGHT TO SAY THIS PARTICULAR FACT HAS BEEN ESTABLISHED, AND IT IS UNCONTROVERTED. NOW, IF THEY SAY, WELL, THE ONLY TWO PEOPLE THAT COULD GIVE ANY INSIGHT INTO THIS ISSUE WAS THE VICTIM, WHO TESTIFIED THERE AND SAID THAT, AND THERE WAS ONLY ONE OTHER PERSON HERE, AND LOOSE OVER AT THE DEFENDANT, AND WE KNOW THOSE -- BUT I AM HAVING DIFFICULTY WITH YOUR EXAMPLES THERE, BEING THOSE KINDS OF THINGS.

BECAUSE THESE ARE DESCRIPTIONS OF THINGS THAT WENT ON THAT DAY BETWEEN THE VICTIM AND THE DEFENDANT, THAT CAME FROM THE DEFENDANT'S STATEMENT. NOW, WHO ELSE CAN CONTROVERT THAT BUT THE DEFENDANT?

YOU MEAN THAT THE STATE CAN'T USE THE VICTIM'S STATEMENT? I MEAN -- IS IT FROM THE VICTIM'S STATEMENT OR THE DEFENDANT'S STATEMENT?

THE DEFENDANT'S STATEMENT.

THE STATE CAN'T USE THE DEFENDANT'S STATEMENT AGAINST HIM?

ABSOLUTY, T THEY CAN'T GET UP, THEN, AND SAY DEFENDANT, LADIES AND GENTLEMEN OF THE JURY IT IS UNCONTROVERTED. THE DEFENDANT SHOULD GET UP HERE AND CONTROVERT THAT, THAT HE SAID THAT.

WELL, I DIDN'T UNDERSTAND THAT THEY SAID THAT THE DEFENDANT OUGHT TO GET UP HERE AND CONTROVERT THAT.

WELL, NOT EXACTLY.

BUT YOU ARE SAYING THAT IT IS A REASONABLE INFERENCE?

YES, SIR.

THAT THEY WERE CHALLENGING THE FACT THAT THE DEFENDANT DIDN'T GET UP AND CHALLENGE IT?

ABSOLUTELY. PARTICULARLY THE -- HE SAYS THAT A NUMBER OF TYPES, IN QUICK SUCCESSION, BUT THE MAIN ONE WAS HE SPECIFICALLY MENTIONED, DURING THAT TIME, IT IS UNCONTROVERTED, FROM THE DEFENDANT'S OWN STATEMENT. NOW, WHO ELSE CAN CONTROVERT IT BUT THE DEFENDANT? NOBODY.

HOW ELSE WOULD HE HAVE SAID THAT THE DEFENDANT HAS ADMITTED?

FINE. HE DOESN'T HAVE -- HE DOESN'T HAVE TO SAY --

SO IF YOU USE THE WORDS "THE DEFENDANT, HIMSELF, ADMITTED IT" IT WOULD BE ALL RIGHT, BUT IF HE SAID "IN LOOKING AT THE DEFENDANT'S STATEMENTEST, DOESN'T CONTROVERT THAT FACT HE" THAT IS WRONG.

THAT IS A CONTROVERT ON HIS FAILURE TO TESTIFY. WHAT I WAS TRYING TO USE AN EXAMPLE, TO GET UP AND TESTIFY, CAN CONTROVERT THAT. THAT WE FEEL THAT THAT IS A SIGNIFICANT AREA, AND IT IS CORRECT, THE COURT IS CORRECT THAT THE LAW IS, IF IT IS ACCEPTABLE, IF YOU ARE COMMENTING ON THE EVIDENCE, ITSELF, BUT IF YOU ARE TALKING ABOUT SOMETHING THAT ONLY THE DEFENDANT CAN REFUTE, TO WIT THE STATEMENT THAT HE MADE TO DIFFERENT PEOPLE THAT DAY, THEN IT HAS GOT TO BE FOLLOWED IN THE CONSTITUTION. WE REQUEST AND FEEL THAT THERE IS A EVIDENTIARY HEARING ENTITLED. THE ISSUE ON THE HABEAS CORPUS, INEFFECTIVE ASSISTANCE OF APPELLANT COUNSEL, IS ESSENTIALLY THAT THERE WERE JUDICIAL ACTS, PARTICULARLY JUDICIAL ACTS TO BE REVIEWED, THAT WERE NOT BRIEFED BY FELLOW COUNSEL IN THE ORIGINAL APPEAL, ND WE FEEL THAT IS DEFINITELY, UNDER STRICKLAND, A EFIIENT PERFORMANCE, AND THE ISSUES SURROUNDING MENTION OF THE DEFENDANT'S PRISON RECORD AT TRIAL, AND THAT WAS NOT INCLUDED IN THE APPELLATE BRIEF OF COUNSEL, AND ACCORDINGLY WOULD SEEK A REVIEW ON THAT BASIS. MR. CHIEF JUSTICE

MS. YATES.

MAY IT PLEASE THE COURT. I AM ASSISTANT ATTORNEY GENERAL BARBARA YATES ON BEHALF THE STATE OF FLORIDA. ON THE FIRST CLAIM THAT MR. McDERMOTT HAS TALKED ABOUT, THE LACK OF AN EVIDENCIARY HEARING ON THE PRESENTATION OF THE INTOXICATION DEFENSE. THE INTOXICATION DEFENSE IS, OF COURSE, AN AFFIRMATIVE DEFENSE. COUNSEL TESTIFIED AT THE EVIDENTIARY HEARING THE THEORIES OF DEFENSE WERE, ONE, HE WAS TOO INTOXICATED TO FORM SPECIFIC INTENT NEEDED TO DEMONSTRATE FIRST-DEGREE PREMEDITATED MRR AND, TWO, BRENDA EGG HIM ON INTO ALL OF THIS.

WOULD YOU HELP US? WE HAVE HAD SEVERAL PROBLEMS THIS MORNING WITH THAT MICROPHONE NOT BEING LONG ENOUGH OR CLOSE ENOUGH.

OKAY. BETTER?

I APOLOGIZE FOR ASKING YOU.

THAT IS OKAY. AS THE CIRCUIT COURT CONCLUDED, AND AS MR. McDERMOTT POINTS OUT IN THE BRIEF, IN STATE VPEED, AND CITING TO STATE V PEED, YOU GET A CONCLUSION, UNLESS THE RECORD REBUTS OR REFUTES THE ALLEGATION THAT ARE MADE. THE CIRCUIT JUDGE WENT THROUGH THE RECORD AND LOOKED AT ALL OF THE INSTANCES WHERE THE INTENTION INDICATION DEFENSE WAS PRESENTED BY NOT CALLING EXPERTS, BY NOT PUTTING THE DEFENDANT ON THE STD TO TESTIY. EVERY ONE OF THESTATE WITNESSES THAT WAS BROUGHT UP WAS QUESTIONED. WELL, WHAT WERE THEY DOING? WELL, THEY WERE DRINKING. WELL, THEY DRANK THIS AND THEY DRANK THAT AND THEY DRANK THIS. IN HIS CONFESSIONS, LAWRENCE WAS VERY SPECIFIC ABOUT, WELL, WE TOOK BRENDA TO WORK, AND THEN WE WENT OVER AND HAD THE CAR SUPER SUPER-UBD,AND THEN WE WENT TO A BAR AND I HAD A COUPLE OF BEERS AND MIKE HAD SOME MIXED DRIKS AND THEN WE WENT TO SOME OTHER BARS AND SAT THERE AND DRANK AND THEN WE WENT OVER TO ADAM'S HOUSE AND WE SAT THERE AND DRANK AND THEN PICKED BRENDA UP FROM WORK AND WE SAT THERE AND DRANK, ALL OF THIS. EVERY STATEMENT DEFENSE COUNSEL NOTED, WELL, WHAT WAS GOING ON AND HOW MUCH DRINKING WAS GOING ON? AS THE CIRCUIT COURT FOUND, THE INTOXICATION DEFENSE WAS PRESENTED, AS WELL AND AS SPECIFICALLY AS IT COULD BE. ANOTHER THING THAT JUSTICE ANSTEAD ASKED, WELL, THE CONCLUDE AREA ALLEGATIONS -- THE CONCLUSORY ALLEGATIONS. THE ALLEGATIONS IN THE MOTION, ITSELF, THAT HE SHOULD HAVE PRESENTED EXPERTS TO DEMONSTRATE THAT HE WAS INTOXICATED. THERE IS ABSOLUTELY NOTHING IN THE MOTION TO FLUSH THAT OUT. GAS KIN ANN FREEMAN, WHICH HE -- GAS KIN AND FREEMAN, WHICH HE RELIES ON,, IN THE STATEMENT THAT GAS KIN'S TRIAL COUNSEL DID NOT GIVE THE MENTAL HEALTH EXPERT WHO EXAMINED GAS KIN SUFFICIENT EVIDENCE, AND THE TRIAL COURT SAID, YES, THAT IS EVIDENCE THAT WE GIVE. IN THE MOTION, FREEMAN SAYS OUT THAT WE HAVE TWO EXPERTS WHO WILL TESTIFY TO THIS, THIS AND THIS, AND THE COURT SAID, WELL, THEY MAY HAVE BEEN ABLE TO PRESENT ENOUGH EVIDENCE ABOUT DRUG USE, ALCOHOL ABUSE THAT, IT COULD HAVE MADE A DIFFERENCE, AND WE HAD AN EVIDENTIARY HEARING IN FREEMAN ON THAT. THAT IS A FAR CRY FROM WHAT WE HAVE IN THIS CASE. AS THE CIRCUIT COURT FOUND, THE RECORD CONCLUDE I FEEL REFUTES THESE -- CON INCLUDES I FEEL REFUTES THESE -- CONCLUSIVELY REFUTES THESE CLAIMS. THEY ARE TOO CONCLUSORY TO REFUTE CLAIMS OF RELIEF. MOVING ON, AS MR. McDERMOTT READ FROM THIS, THERE ARE FIVE NSTANCES IN THE GUILT PHASE CLOSING ARGUMENT, WHERE THE PROSECUTOR USES THE WORD UNCONTROVERTED, AND HE USES THAT IN TALKING ABOUT PREMEDITATION TO THE JURY. AS JUSTICE ANSTEAD POINTED OUT, THE USE OF THE WORD "UNCONTROVERTED", IS SIMPLY FAIR COMMENT ON THE EVIDENCE THAT WAS PRESENTED IN THIS CASE. LAWRENCE CONFESSED TO AT LEAST HALF A DOZEN DIFFERENT MEMBERS OF THE SHERIFFS OFFICE. WE HAVE EAR WITNESS AND EYEWITNESS TESTIMONY FROM KIMBERLY PITTS, BRENDA'S 16-YEAR-OLD DAUGHTER, FROM HER FRIEND, 15-YEAR-OLD RACHEL MATON FROM BRENDA'S 11-YEAR-OLD SON, WHO WAS ALSO IN THE HOUSE THAT EVENING, AND ALSO FROM CHRIS WEATHER BYE. WE HAVE PHYSICAL EVIDENCE THAT MATCHES THE COPFESSIONS AND MATCHES THE TESTIMONY BY EVERYONE. AS JUSTICE ANSTEAD SAID, THESE ARE COMMENTS ON THE NATURE OF THE EVIDENCE THAT WAS PRESENTED, AND THIS IS NOT A CASE SUCH AS THOSE THAT RELIED ON THE BRIEF, WHERE ALL YOU HAVE IS THE VICTIM A DEFENDANT, NO CONFESSION, YOU HAVE A VICTIM, A DEFENDANT, A CO-PERPETRATOR, AND THE STATE SAYS SOMETHING LIKE WE HAVE ONLY HEARD ONE SIDE OF THE STORY, AND IT PROVES OUR CASE. THAT IS NOT THE UNCONTROVERTED NATURE OF THE EVIDENCE THAT WAS PRESENTED IN THIS CASE. WE DO HAVE A CONFESSION. WE HAVE OVERWHELMING EVIDENCE OF GUILT, AND THIS IS SIMPLY NOT AN IMPROPER COMMENT ON SILENCE. GOING TO THE HABEAS --

DO YOU AGREE IN CERTAIN CIRCUMSTANCES, IF THE STATE, WHO HAS THE BURT EVEN -- THE BURDEN, IF THE DEFENDANT DIDN'T HAVE A CONFESSION, AND ONLY THE STATE PUTS ON EVIDENCE, TO SAY REPEATEDLY THAT THERE IS EVIDENCE THAT IS UNCONTROVERTED, COULD START, IN CERTAIN CASES COULD BE AN IMPROPER --

OF COURSE, YOUR HONOR, IT CAN BE IMPROPER IN CERTAIN CASES. ONE OF THE DCA CASES THAT CITED OSGOOD,THE STATE CONCEDED THAT IT MADE AN IMPROPER COMMENT ON SILEN. THE STATE IS NOT CONCEDING THAT HERE, AND IT IS SIMPLY NOT THE CASE. THESE ARE GOING TO THE FACTS THAT ARE DISTINGUISHABLE. GOING TO THE MENTION OF HABEAS CORPUS, IT SAYS THAT APPELLANT COUNSEL WAS INEFFECTIVE, FOR NOT RAISING, ON DIRECT APPEAL, A WITNESS'S MENTIONING THAT HE HAD KNOWN LAWRENCE SINCE HE GOT OUT OF PRISON THE LAST TIME. THIS IS ROBERT ROHR. THIS WAS DURING HIS TESTIMONY AS A DEFENSE WITNESS, I BELIEVE. HE WAS CALLED TO THE STAND. HOW LONG HAVE YOU KNOWN HIM? WELL, I HAVE KNOWN HIM SINCE I GOT OUT OF PRISON THE LAST TIME. GARY LAWRENCE WAS RELEASED FROM PRISON IN JANUARY 10, 1994. HE MARRIED BRENDA AND MET HER THAT WEEK OR VERY SHORTLY, MARRIED HER IN MARCH OF 1994. STOPPED LIVING WITH HER IN APRIL OF '94, AND THIS MURDER OCCURRED AT THE END OF JULY OF '94.

COULD I JUST ASK YOU A QUESTION TO CLARIFY SOMETHING, WHICH MAY BE SOMETHING YOU DO OR DON'T KNOW. WE HAVE AN AMENDED MOTION FOR POSTCONVICTION RELIEF ON THE 3.850, AND IT LOOKS IKE THERE IS A SERIES EVER QUESTIONS AND ANSWERS, WHICH IS, YOU KNOW, WHAT IS THE SUPPORTING FACTS, GROUND ONE, DENIAL OF COUNSEL'S SUPPORTING FACTS. WAS THAT DONE BECAUSE OF THE JUDGE ORDERING THAT THE MOTION BE SUPPLEMENTED, OR IS THAT JUST IS THAT THE POSTCONVICTION MOTION?

ARE YOU TALKING ABOUT THE AMENDED MOTION FOR POSTCONVICTION RELIEF? THAT WAS AMENDED ON THE REQUEST OF COUNSEL, TO BE ALLOWED TO AMEND THE MOTION. THE AMENDMENT WAS ADDED INTO IT. I THINK CLAIM 3-A ABOUT FETAL ALCOHOL SYNDROME.

SO THE 15 PAGES, REALLY, THAT CONSISTS Z OF OF THE POSTCONVICTION MOTION IN THIS CASE.

YES, YOUR HONOR. YES, YOUR HONOR.

I AM SORRY.

I HAVE SEEN A NUMBER OF CASES LIKE THAT, WHERE WE ARE USED TO SEEING THE MONUMENTAL OPEN USES THAT CCR -- OPUSES THAT CCR PRODUCES, AND WE ARE SEEING FEWER AND FEWER OF THOSE, IN THE NEW RULE THAT CAME IN EFFECT ON OCTOBER 1, A PAGE LIMIT ON THESE THINGS.

IT WASN'T AN AUTOMATIC ON THE EVIDENTIARY HEARING.

IF THEY ARE FACTUAL DISPUTES, YOUR HONOR.

THE PAGE LIMIT IS, WHAT, 50 PAGES? EYE BELIEVE IT IS 50, YES, AND THEN 20 OR 25 FOR SUCCESSIVE MOTIONS. YES, YOUR HONOR. BUT THE DEFENSE COUNSEL OBJECTED WHEN THE WITNESS SAID "I MET HIM JUST AFTER HE GOT OUT OF PRISONMENT". THE THE TRIAL COURT TOLD THE WITNESS DON'T SAY THAT AGAIN, AND CAUTIONED EVERYBODY THAT THIS WAS INVITED ERROR, EXCUSE ME, LET ME LOOK FOR SOMETHING. IT MAY HAVE BEEN RAISED ON DIRECT APPEAL. I AM SORRY. I HADN'T LOOKED AT THAT. YES. NO. THIS WAS NOT RAISE ODD DIRECT APPEAL. HOWEVER, AS I SAID, LAWRENCE CALLED ROBERT ROHR TO THE STAND, AND HE SAID THE STATEMENT, IN RESPONSE TO A QUESTION FROM DEFENSE COUNSEL, HOW LONG HAVE YOU KNOWN MY CLIENT?

IT IS YOUR CLAIM THAT SOME OF THE ISSUES RAISED IN THE HABEAS NOW BEFORE US WERE ACTUALLY ISSUES RAISED ON DIRECT APPEAL.

YES, YOUR HONOR. THE COMPLAINT ABOUT DISPARATE TREATMENT OF BRENDA. SHE WAS TRIED SEPARATELY BEFORE A SEPARATE JURY, WHICH RECOMMENDED LFE IMPRISONMENT FOR HER, AND SHE WAS SENTENCED TO LIFE IMPRISONMENT. THAT WAS RAISED ON DIRECT APPEAL. THIS URT FOUND NO MERIT ON E CLAIM OF DISPARATE TREATMENT. IF THERE ARE NO OTHER QUESTIONS, THE STATE WILL RELY ON ITS BRIEF AND ASK THE COURT TO DENY RELIEF  RELIEF.

THE ISSUE AS RELATES TO THE SENTENCE OF IMPRISONMENT --

YOU AGREE THAT AT LEAST THE ISSUE SHE REFERRED TO --

YES. THAT WAS ACTUALLY, YES.

I ASK YOU SOMETHING ABOUT THE PLEADING WE ARE CONSIDERING FOR WHETHER THE SUMMARY DENIAL IS PROPER. IS IT YOUR SPECIFIC MOTION THAT WAS 15 PAGES?

YES.

AND SO THE ALLEGATION THAT WE ARE LOOKING AT CONCERNING WHETHER THERE SHOULD HAVE BEEN AN EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL ON THE GUILT PHASE, THE DEFENSE COUNSEL, FOR FAILURE TO PURSUE OR USE ADEQUATE TESTIMONY IN THE GUILT OR PENALTY PHASE OF THIS TRIAL AS TO DEFENDANT'S IMPAIRMENT FROM IN TOX WANTS OR DRUGS, THAT IS IT?

THAT'S IT.

AND THN ON THE OTHER, DID YOU MAKE AN ARGUMENT ON 3-A, WHICH IS WHAT IS THE EFFECT OF FAILURE TO EXPLORE FETAL ALCOHOL SYNDROME AND BEING RAISED IN AN ALCOHOLIC FAMILY, DOES THAT GO TO PENALTY PHASE?

WELL, WE HAD SUSPICIONS OF IT JUDGE, BUT WE JUST COULDN'T PUT ENOUGH TOGETHER TO PURSUE IT.

WHATEVER YOU HAVE NOT PUT IN YOUR MOTION AS AN OFFICER OF THE COUT, DO YOU, IN FACT, HAVE EXPERT WITNESSES THAT YOU WOULD HAVE PRESENTED AT AN EVIDENTIARY HEARING THAT WOULD HAVE EXPLAINED TO THE JURY THAT A VOLUNTARY INTOXICATION DEFENSE, AS TO THE SIGNIFICANCE OF THE ALCOHOL INGESTION IN THIS CASE?

YES. THAT IS OUTSIDE THE RECORD, BUT, YES, I DO.

THANK YOU.

YOU KNOW, WHEN WE FILED THE MOTION, WE ARE LIMITED ON TIME, AND A LOT OF THIS STUFF DVELS TER YOU FILE IT. YOU GET THE INORMATION FROM YOUR CLIENT. BUT THE, WE FEEL THAT THE ALLEGATIONS ARE SUFFICIENT TO GET US THE HEARING.

THE AMEND MOTION WAS FILED IN APRIL. WHEN WAS THE ORIGINAL MOTION FILED?

JANUARY -- I BELIEVE IT WAS JANUARY --

IT LOOKS LIKE 1999.

JANUARY '99, I THINK. LET ME LOOK, JUDGE. I TINKIILL HAVE THAT. I DON'T THINK THE BRIEF MENTIONS IT. I THINK IT WAS JANUARY '99.

OKAY. DON'T WORRY ABOUT THAT. I THOUGHT YOU WERE LOOKING FOR SOMETHING ELSE. I WILL FIND IT.

THANK YOU. MR. CHIEF JUSTICE

THANK YOU. THANK YOU, COUNSEL, FOR YOUR ASSISTANCE IN THE CASE. THE COURT WILL BE IN RECESS.