The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Roger Stewart Harris v. State of Florida


THE NEXT CASE ON THE COURT'S ORAL ARGUMENT CALENDAR IS HARRIS VERSUS STATE. MR. TAYLOR.

THANK YOU, YOUR HONOR. GOOD MORNING, MY NAME IS JAMES TAYLOR, AND I REPRESENT, FOR PURPOSES OF THIS APPEAL, ROGER HARRIS. I AM HERE WITH MR. WESLEY, MY ASSOCIATE IN THE APPEAL BELOW, BUT SINCE HE HAS BEEN ELECTED TO A PUBLIC DEFENDER BECAUSE OF THE BAD JUDGMENT OF PEOPLE OF ORANGE COUNTY, AND HE CAN'T PARTICIPATE BUT IS HE HERE FOR MORAL SUPPORT. WE BECAME INVOLVED IN THIS CASE AFTER THE JURY VERDICT IN LAKE CITY. ROGER HARRIS WAS INDICTED FOR THE FIRST-DEGREE MURDER OF HIS WIFE, DON A THEY HAD TWO CHILDREN.

YOU -- HIS WIFE, DONNA. THEY HAD TWO CHILDREN.

YOU SAID YOU WERE APPOINT ODD JUST TO DO THE PENALTY PHASE?

NO, MA'AM. WE WERE RETAINED FOR THE PENALTY PHASE, FOR THE SPENCER HEARING AND ALSO FOR THE APPEAL. ROGER HARRIS HAD TWO CHILDREN, MATTHEW AND JOSEPH. HIS WIFE'S NAME WAS DONNA. HE BECAME INVOLVED WITH A LADY BY THE NAME OF JENNIFER PALMER. JENNIFER PALMER WAS THE WITNESS IN THIS CASE FOR THE STATE. THERE WAS ANOTHER WITNESS, HOWEVER, SHANNON CARDING, WHO ALSO TESTIFIED, AND IT IS HER TESTIMONY THAT WE SUBMIT CONSTITUTES REVERSIBLE ERROR. JENNIFER PALMER, UPON BEING QUESTIONED BY THE AUTHORITIES IMMEDIATELY ACKNOWLEDGED THAT SHE WAS INVOLVED IN THE PLANNING STAGES WITH ROGER HARRIS, AND TOLD THEM EVERYTHING THAT THEY DID TOLANHIS PARTICULAR MURDER. SHE WASAL TLOUD TESTIFY -- SHE WAS ALLOWED TO TESTIFY IN THE CASE, AND DURING HER TESTIMONY, SHE WAS ASKED TWO QUESTIONS ABOUT IMPEACHMENT. ONE HAD TO DO WITH OMITTING, SAYING SOMETHING TO THE POLICE ABOUT TACO BELL, AND THE OTHER WAS WHETHER OR NOT SHE HAD SEX WHEN SHE WAS IN THE HOME WITH ROGER HARRIS OR NOT, SOME LITTLE INCONSISTENCY IN HER DEPOSITION, AND SHE WAS, ALSO, ASKED A GENERAL QUESTION, DO YOU THINK YOU ARE GOING TO BENEFIT AS A RESULT OF YOUR TESTIMONY IN THIS CASE, AND SHE SAID YES. BECAUSE OF THAT, ANOTHER WITNESS SHANNON HARDING, WAS ALLOWED TO TESTIFY. SHANNON HARDING CAME IN, AND ALL OF HER TESTIMONY WAS HEARSAY, WE SUBMIT. SHE WAS ALLOW TO GIVE PRIOR CONSISTENT STATEMENT TESTIMONY THAT JENNIFER PALMER HAD TOLD HER, DURING THIS AFFAIR WHICH TOOK PLACE FROM, LIKE, JUNE TO DECEMBER, THERE WAS OBJECTIONS TO IT. IT WAS ALLOWED, AND THE REASON THAT IT WAS ALLOWED WAS BECAUSE THE PROSECUTOR CONVINCED THE TRIAL JUDGE THAT THERE HAD BEEN AN ATTACK ON THE, ON JENNIFER PALMER, ACCUSING HER OF RECENT FABRICATIONS. THERE IS NOTHING IN THE RECORD WHATSOEVER THAT ANYONE EVER ACCUSED JENNIFER PALMER OF RECENTLY MAKING THIS UP. TO THE CONTRARY, THERE IS, THE RECORD SHOWS THAT IT WAS UNDERSTOOD THAT SHE MADE THIS UP BEGINNING IN JUNE, AND GOING THROUGH DECEMBER. BUT THE STATE'S PRIMARY WITNESS WAS ALLOWED HER, ALL OF HER TESTIMONY WAS ECHOED BY HER GIRLFRIEND, AND WE SUBMIT THAT THIS BECAME THE FEATURE OF THE CASE, AND AS A RESULT, IT SHOULD BE REVERSED.

I THOUGHT THE OTHER EXCEPTION WAS, AS FAR AS MOTIVE TO TESTIFY AND THE CROSS-EXAMINATION WAS THAT SHE WAS GIVING HER TESONY BECAUSE SHE THOUGHT SHE COULD GET A BETTER DEAL, AND SO WHY WOULDN'T HER STATEMENTS THAT WERE MADE BEFORE SHE WAS ARRESTED BE ADMISSIBLE UNDER THAT EXCEPTION?

WELL --

IN OTHER WORDS YOU ARE SAYING THAT THE CROSS-EXAMINATION WAS YOUR ONLY THING. WHAT YOU ARE SAYING, BECAUSE YOU WANTED THE BEST POSSIBLE DEAL AND THE STATE GOES "NO, -- AND THE STATE GOES, NO, SHE SAID IT BEFORE SHE WAS ARRESTED AND SHE SAID IT BEFORE SHE KNEW SHE WAS GOING TO BE PROSECUTED.

IT IS OUR POSITION THAT THIS RULE WOULD NOT ALLOW A DAY-LONG DIALOGUE OF TESTIMONY BY A CORROBORATING WITNESS, JUST BECAUSE A LAWYER GOES THROUGH THE IMPEACHMENT OF ASKING A WITNESS AREN'T YOU HERE TESTIFYING BECAUSE YOU THINK YOU ARE GOING TO GET A BETTER DEAL? THAT SHOULD NOT OPEN THE DOOR TO RING BRINK IN EVERYBODY WHO HEARD HER SAY SOMETHING IN JUNE ABOUT THIS INCIDENT, YOUR HONOR. I MEAN, WE THINK THAT THERE SHOULD AND LIMIT ON WHAT THE CORROBORATING WITNESSES SHOULD SAY, AS A RESULT, I MEAN, AS AN EXAMPLE, THERE WAS A QUESTION ABOUT WHETHER OR NOT SHE HAD SEX WITH ROGER HARRIS IN HIS HOUSE OR WHETHER SHE DIDN'T. IN HER DEPOSITION, SHE SAID SHE DIDN'T AND IN COURT SHE SAID SHE DID. PROBABLY THEY COULD BRING ON SHANNON HARDING TO SAY DID SHE TELL YOU THAT SHE HAD SEX IN THE HOUSE, TO SHOW THAT THAT WAS CONSISTENT BUT NOT TO ALLOW HER TO GO THROUGH DAYS AND WEEKS OF DISCUSSIONS THAT THEY.

SO YOUR ARGUMENT HERE, REALLY ISN'T THAT ALL OF THIS WAS INADMISSIBLE, THAT IT SHOULD HAVE BEEN JUST A SHORTER RECITATION OF WHAT SHE HAD TOLD HER.

ABSOLUTELY. IF THE TRIAL ATTORNEY ACCUSED HER OF RECENTLY FABRICATING SOMETHING ABOUT ONE INCIDENT, THEN I SUBMIT, UNDER THE RULE, UNDER THE STATUTE, THAT THEY SHOULD BE ALLOWED TO BRING IN SOMEBODY TO SHOW CONSISTENT SMENTS TO REBUT THAT CHARGE OF RECENT FABRICATION.

SO THE SEXUAL RELATIONSHIP, IT WAS OKAY TO REBUT THE INSTANCE THAT YOU DIDN'T SAY THAT IN YOUR DEPOSITION. CORRECT?

CORRECT.

AND THEN, IN REGARD TO ANY OTHER STATEMENT, LIKE SHE DIDN'T MENTION TO THE POLICE SOMETHING ABOUT THE DUMPING OF THE TACO BELL, AT TACO BELL.

CORRECT.

SO THEN THE FACT THAT SHE MENTIONED THIS TO HARDING WAS OKAY TO BRING HARDING IN TO SAY THAT SHE HAD, IN FACT SAID THAT.

ARGBRING. WE DON'T -- ARGUABLY. WE DON'T CONCEDE THAT POINT, BECAUSE WHAT HAPPENED HERE WAS IT WAS ALMOST LIKE A GOT YOU! YOU ASK ONE THING AND NOW WE ARE GOING TO ALLOW THIS WITNESS TO COME IN HERE AND TESTIFY ABOUT EVERYTHING THAT WAS SAID OVER WEEKS AND MONTHS. GOTCHA!

THERE WAS THOSE THINGS SPECIFICALLY AND N THERE WAS, ALSO, THE CROSS-EXAMINATION THAT ALKED ABOUT THE FACT THAT SHE WAS GOING TO BEETTG, SHE ADDED THESE OTHER THING, BECAUSE SHE WAS GOING TO BE GETTING SOME FAVORABLE TREATMENT FROM THE PROSECUTOR.

THAT SHE HOPED THAT SHE MIGHT. THERE WAS VERY LIMITED CROSS-EXAMINATION ON THAT, AND I SUGGEST TO THE COURT THAT THIS RULE SHOULD NOT BE OPENED UP SO THAT ANY DEFENSE ATTORNEY EVER ASKED ANYONE DO YOU THINK YOU ARE GOING TO GET A BETTER DEAL BECAUSE YOU ARE HERE TESTIFYING TODAY? THAT THAT OPENS UP THE DOOR SO THE STATE CAN SAY BRING THEM IN. BRING ALL THE PEOPLE IN HERE WHO HEARD THEM MAKE ALL KINDS OF INCONSISTENT STATEMENTS OVER A PERIOD OF WEEKS AND MONTHS, I DON'T THINK THAT IS THE INTENT OF THAT RULE.

JUSTICE HARDING.

WHAT IS OUR STANDARD OF REVIEW IN THIS CASE, AND ARE WE REVIEWING THE DECISION OF THE COURT TO LET IT IN? IS IT ABUSE OF DISCRETION? > YES, SIR. I THINK THAT WENT AS FAR AS THE SHANNON HARDING/JENNIFER PALMER.

HOW WAS THE OBJECTION PHRASED?

THAT HE OBJECTED TO IT AS VIOLATIVE OF THE RULE. IT WAS HEARSAY. THAT IT CONSTITUTED HEARSAY, AND THERE WAS SEVERAL OBJECTIONS MADE DURLING THE TRIAL, AND THEN -- DURING THE TRIAL, AND THEN FINALLY THERE WAS A STIPULATION MADE THAT HE COULD HAVE A STANDING OBJECTS, WHICH HE DID, BUT IT WAS OBJECTED TO VIGOROUSLY BY THE TRIAL COUNSEL IN THIS CASE.

JUSTICE ANSTEAD.

YES, SIR.

WHAT IS THE CASE THAT YOU BELIEVE BEST STATES INTERPRETATION OF THIS RULE FAVORABLE OR SUPPORTER I HAVE OF THE POSITION THAT -- OR SUPPORTIVE OF THE POSITION THAT YOU ARE TAKING NOW? IN OTHER WORDS WHAT PREVIOUS CASE HAS GONE INTO THIS, AND DOUBTFUL HAS EXPLAINED OR INTERPRETED THE RULE IN THE MANNER THAT YOU ARE ASKING US TO --

I DON'T HAVE A CASE THAT SAYS THAT, JUSTICE ANSTEAD.

OTHER THAN THE EXISTENCE OF A RULE, WHAT DO YOU HAVE?

WELL, WE HAVE THE CASE THAT IS CITED IN OUR BRIEF, OF COURSE AND THEN WE HAVE THE RULE, ITSELF. I DON'T HAVE A CASE THAT SAYS IF YOU QUESTION THE STAR WITNESS AS TO THEIR MOTIVES, THEN THAT OPENS THE DOOR TO BRING IN HERE SAY AFTER HEARSAY AFTER HEARSAY, AND THAT IS WHAT HAPPENED HERE. I MEAN --

YOU SEE, YOU ARE STATING THIS SO BROADLY, IN ANSWER TO OTHER QUESTIONS, YOU SAID, WELL, MAYBE THERE WAS SOME TESTIMONY HERE, WHERE --

ASK --

-- AND SO I AM HAVING DIFFICULTY, REALLY, WITH YOUR PARAMETERS OF YOUR INTERPRETATION OF THE RULE. YOU WOULD AGREE, FOR INSTANCE, IF THE DEFENSE LAWYER SAID ISN'T IT TRUE THAT YOU HAVE FABRICATED EVERYTHING THAT YOU HAVE TESTIFIED TO TODAY, AFTER TALKINGWITH THE PROSECUTOR -- AFTER TALKING WITH THE PROSECUTOR LAST NIGHT BEFORE YOU GOT UP HERE TO TESTIFY AND FINALIZING THE DEAL THAT YOU MADE WITH THE STATE? I ASSUME YOU WOULD, IF THAT WAS ASKED OF THE WITNESS, AND THEN WHATEVER THE ANSWER WASS, WOULD YOU -- WHATEVER THE ANSWER WAS, WOULD YOU AGREE THAT THAT WOULD SET UP A CLAIM OF FABRICATION UNDER THE RULE?

YES, I WOULD.

AND SO IF YOU INCLUDED IT THAT WAY, THAT EVERYTHING YOU SAID WAS A RECENT FABRICATION, THEN I TAKE IT THAT YOU WOULD AGREE THAT THIS OTHERNESS COULD TESTIFY THEN, AS TO EVERYTHING THAT IS RELATED TO WHAT SHE TESTIFIED TO IN COURT. THE OTHER WITNESS COULD TESTIFY. IS THAT RIGHT?

YES. IN THE RULE THERE IS A CHARGE OF RECENT FABRICATION.

NOW, WHAT, TAKING THAT AS SORT OF A CLASSIC, WHAT HAPPENED HERE THAT IS DIFFERENT FROM THAT?

WHAT HAPPENED HERE WAS THERE WAS NO CHARGE OF RECENT FABRICATIONS. THERE WAS NO CHARGE THAT SHE ORIGINALLY FABRICATED THIS.

WHAT IS THE CROSS-EXAMINATION WITH REFERENCE TO, ISN'T IT TRUE THAT YOU ARE TESTIFYING HERE, TODAY, BECAUSE YOU WANT TO GET A GOOD DEAL FROM THE STATE? THAT THAT IS INFLUENCING THE TESTIMONY THAT YOU ARE GIVING? YOU KNOW, SORT OF A THE BETTER YOUR TESTIMONY, THE BETTER DEAL YOU ARE GOING TO GET. ISN'T THAT WHAT THE GIST OF THE CROSS-EXAMINATION WAS?

THAT WAS A GIST OF THE VERY SMALL PART OF THE CROSS-EXAMINATION, AND IT WAS A SHORT CROSS-EXAMINATION.

WELL, AS WITH THE HYPOTHETICAL THAT I GAVE YOU, IT COULD BE VERY SHORT, BUT IT COULD BE VERY BROAD AND INCLUSIVELY. SO WASN'T THERE -- AND INCLUSIVE  INCLUSIVE. SO WASN'T THERE AN ATTEMPT TO IMPEACH THIS WITNESS THAT, BECAUSE SHE WAS AT-RISK, THAT HER TESTIMONY AT TRIAL WAS INFLUENCED BY HER BEING AT-RISK, AND SHE WAS HOPING TO GET THE BEST DEAL SHE COULD FROM THE STATE, BY GIVING FAVORABLE TESTIMONY TO THE STATE?

THAT WAS A PROPER QUESTION TO IMPEACH THE CREDIBILITY OR ATTACK THE CREDIBILITY OF THE STAR WITNESS IN THE CASE, YOUR HONOR. I DO NOT THINK, HOWEVER, THAT THAT OPENS THE DOOR.

YOU ARE SAYING THAT IS NOT AN ACCUSATION OF RECENT FABRICATION.

EXACTLY.

OKAY. HOW ABOUT FOLLOWING THAT THROUGH, THEN, BECAUSE YOU ARE NOT REALLY MAKING THAT POINT CLEAR. YOU HAVE ANSWEREDED OTHER QUESTIONS WHERE YOU HAVE SAID, YES, SOME OF THIS STUFF WOULD HAVE BEEN ADMISSIBLE, AND THAT IS WHAT IS NOT VERY CLEAR.

THERE WAS A DEPOSITION TAKEN OF SEAN OR HARDING. SHANNON HARDING -- OF SHANNON A. NO. EXECUTION ME. THERE WAS A DEPOSITION ---NO. EXCUSE ME. THERE WAS A DEPOSITION TAKEN OF JENNIFER PALMER. THE QUESTION WAS ASKED DID YOU HAVE SEX WITH ROGER PALMER WHILE YOU WERE THERE LIVING WITH HIM? SHE SAID NO. THEN, DURING THE TRIAL SHE SAID, YES, WE DID HAVE SEX WHILE WE WERE LIVING THERE. I DON'T KNOW THAT THAT HAS A WHOLE LOT TO DO WITH THIS CASE, BUT IN ANY EVENT, ONE OF THE FIRST THING THAT IS THE TRIAL ATTORNEY ASKED, WHEN HE STOOD UP WAS DO YOU RECALL MY TAKING YOUR DEPOSITION? YES. AND YOU RECALL MY ASKING YOU THESE QUESTIONS? YES. AND YOU RECALL ME ASKING YOU IF YOU HAD SEX IN THE HOUSE AND YOU SAID NO, AND NOW YOU SAID YOU DID. THEY COULD BRING HARDING IN TO SAY, YES, SHE TOLD ME BACK THEN THAT SHE AND ROGER HAD SEX. THAT WOULD PROBABLY BE, UNDER THAT RULE, PERMISSIBLE, BUT THAT WOULD ---.

YOU ARE SAYING THAT YOU BELIEVE THE RULE HAS BEEN ABUSED HERE.

ABSOLUTELY.

THAT IT HAS BEEN USED MUCH MORE BROADLY THAN IT WAS INTENDED.

I MEAN, I DON'T KNOW HOW I COULD EVER CROSS-EXAMINATION ANYONE WHO WAS GIVEN A DEAL BY THE STATE TO TESTIFY, KNOWING THAT THEY TOLD OTHER PEOPLE THINGS, WITHOUT FEAR OF SAYING, WELL, GOTCHA! IT OPENS UP EVERYTHING NOW. WE ARE GOING TO BRING IN ALL OF THESE OTHER PEOPLE, THEN, THAT THEY TALKED TO AND ONE PIE ONE PRESENT THE HEARSAY TESTIMONY TO THE TRIAL JURY, AND I DON'T THINK THAT IS PROPER.

HOW ABOUT THE THEME OF GOING AWAY FROM THIS PARTICULAR LINE OF QUESTIONING BUT WHAT MAYBE CHARACTERIZED AS THE AGILITYED LOVER KIND OF -- AS THE AGILITY AGILITYED LOVER -- AS THE JILTED LOVER KIND OF DEFENSE, WHERE THERE WAS THE PROMISE THAT WE WERE GOING TO BE MARRIED AND ALL OF THOSE KINDS OF THINGS, AND THEN SUGGESTING THAT, WHEN THAT DID NOT OCCUR, THEN ALL OF A SUDDEN THE WITNESS CAME UP WITH THE STORY. HOW WOULD THAT FIT INTO YOUR ANALYSIS? BECAUSE AS YOU LOOK AT THE CROSS-EXAMINATION, THERE WAS A LENGTHY EXAMINATION WITH REGARD TO THAT RELATIONSHIP AND ALL OF THE PROMISES MADE AND WHAT WAS NG TOEN GOITO LEAVE THE WIFE AND THAT KIND OF SITUATION, SO HOW SHOULD WE ANALYZE THAT? DOES THAT NOT FORM, ALSO, A PREDICATE, WHEN AT THE END, THIS HAS HAPPENED AND ALL OF A SUDDEN WE ARE GOINGN TO CLAIM THAT THT, THAT MY EX-LOVER IS THE CULPRIT HERE?

NO, SIR, JUSTICE LEWIS, BECAUSE SHE ADMITTED THAT SHE WAS UPSET WITH ROGER HARRIS. SHE ADMITTED THAT SHE WANTED ROGER HARRIS TO DO ANYTHING HE COULD TO GET RID OF DONNA HARRIS. SHE ADMITTED THESE THINGS DURING HER TESTIMONY. THEREFORE THERE IS NO REASON, THEN, TO ALLOW SHANNON HARDING TO COME IN AND SAY, LOOK HERE. SHE ADMITTED THESE THINGS TO ME, TOO.

YOU HAVE GOT A LOT OF OTHER ISSUES.

YET. -- YES, SIR.

TO ADDRESS.

THERE WAS A QUESTION ABOUT THE PHOTOGRAPHS. IT IS ARGUED IN MY BRIEF. THE ISSUE IN THIS CASE WAS WAS WHO DID IT, NOT HOW IT WAS DONE. THERE WAS NO SENSE IN ALLOWING THE JURY TO SEE PHOTOGRAPHS, PHOTOGRAPH AFTER PHOTOGRAPH OF HORRIBLE PHOTOGRAPHS AND VIDEOTAPES OF BODY FLUID THAT HAD NOTHING TO DO, THAT WERE TOTALLY IMMATERIAL TO THE ISSUES IN THIS CASE. THERE WAS, ALSO, --.

WERE THE PHOTOGRAPHS UTILIZED IN ANYBODY'S TESTIMONY?

I THINK THE PHOTOGRAPHS WERE PROBABLY UTILIZED IN THE CRIME SCENE INVESTIGATOR'S TESTIMONY AND THE MEDICAL EXAMINER'S TESTIMONY.

HOW WERE THEY REFERRED TO?

IN THE MEDICAL EXAMINER AS TESTIMONY, THAT THIS COULD HAVE BEEN BULLET OR HOW IT WAS USED OR SOMETHING LIKE. THAT I AM SAYING THAT THERE WAS SO MANY PHOTOGRAPHS ENTERED, THAT WERE NOT MATERIAL TO ANY ISSUE, AND BESIDES THAT, THERE WAS A WRN STIPULATION, YOUR HONOR, AS TO THE IDENTITY OF THE VICTIM, AND IN A MICIDE CASE YOU HAVE TO PROVE THE IDENTITY OF THE VICTIM AND THAT THEY WERE KILLED BY AN UNLAUL INAL AGENCY OR SOME OTHER PEOPLE AND WHO IT WAS. THERE IS NO REASON TO PUT ALL THESE PHOTOGRAPHS INTO EVIDENCE, WHEN THEY STIPULATED IN WRITING WHO SHE WAS.

HAVE WE HAVE, IF THOSE PHOTOGRAPHS HAD BEEN UTILIZED IN CONNECTION WITH ANYONE'S TESTIMONY FOR MEDICAL EXAMINER EXPLAINING THEUSE OF DEATH AND THINGS, HAVE WE HAVE HELD IT REVERSIBLE ERROR TO PUT THOSE IN?

NOT AS FAR AS I KNOW.

BUT IN THIS CASE, IN THIS CASE, IT WASN'T, THE QUESTION OF WHO DID IT BUTW IT WAS DONE, BECAUSE WASN'T HOW IT WAS DONE BE PROBATIVE OF WHO DID IT? I MEAN, IN OTHER WORDS, HOW SHE WAS FOUND IN THE VAN. THE FACT OF WHAT TYPE OF WEAPON WAS USED. WOULDN'T THAT, AND THE FACT THAT THIS IS THE PERSON THAT HAS GOT IN HIS BACKGROUND AND WHAT HIS BACKGROUND IS, THAT THAT ALL GOES TO ATTEND TO CORROBORATE THAT THIS DEFENDANT WASTHE PERSON? DOESN'T IT? I MEAN, IN THIS CASE, THE FACTS OF THE CRE HAD TO BE EXPLAINED TO ON THE JURY FOR THEM TO HAVE A BETTER IDEA -- EXPLAINED TO THE JURY, FOR THEO HAVE A BETTER IDEA OF WHO DID IT.

JENNIFER PALMER WAS THE WHO DID IT. SHE SUPPLIED ALL OF THAT. WITHOUT HER, T,SHEPLIED ALL OF THEINFORMATION. SHE TALKED ABOUT HIM DOING A SPECIAL PROJECT. SHE WAS THE --

SHE DIDN'T KNOW HOW THE ACTUAL MURDER OCCURRED.

SHE TESTIFIED THAT HE TOLD HER THAT HE DID IT. SHE TESTIFIED THAT HE TOLD HER THAT HE WE WOULD ADD GUN TOGETHER WHICH WAS NEVER PROVEN. THAT GOES INTO ANOTHER POINT THAT WE HAD. SO I DON'T THINK THEY NEEDED THAT, WHEN THEY HAD SOMEBODY WHO WAS DEAD, AS A RESULT OF A WOUND SOME KIND OF GUNSHOT WOUND TO THE BACK OF THE HEAD, AND A WITNESS SAYING THAT HE, WE PLANNED IT AND HE DID IT. SO WHY DO WE NEED TO SEE PHOTOGRAPHS OF BODY FLUID OR A VIDEO OF IT? SO THAT IS WHY I THINK THAT IT WENT TOO FAROUR HONOR, IN HIS CA. THEY DIDN'T NEED ALL OF THAT. THAT COULD DO NOTHING MORE THAN IN FLAME THIS JURY IN LAKE CITY.

DID THE JUDGKE A DECISION AND DID THEY EXCLUDE SOME OF THE PHOTOGRAPHS, OR WAS EVERY PHOTOGRAPH TAKEN AND EVERY PART OF THE VIDEOTAPE --

SOME OF THEM WERE WITHDRAWN. A COUPLE OF THEM, THE DEFENSE ATTORNEY SAID I WILL AGREE TO.

VIDEOTAE WAS ACTUALLY NOT THE WHOLE VIDEOTAPE?

NOT THE WHOLE VIDEOTAPE. THAT'S CORRECT. THE OTHER ISSUE YOU HAVE GOT I HAVE GOT -- THE OTHER ISSUE I HAVE GOT THAT I WANT TO GET TO REAL QUICKLY IS THE GUILT PHASE. THIS IS WHAT WE CONSIDER TO BE A ONE-AGGRAVATOR TYPE CASE. ANOTHER GUILT PHASE? ANOTHER PENALTY PHASE. I AM SORRY, YOUR HONOR. THIS IS A ONE-AGGRAVATOR CASE. THE COURT FOUND THAT THIS WAS A COLD, CALCULATED AND PREMEDITATED MURDER, AS AN AGGRAVATOR. THE COURT, ALSO, FOUND THAT AND INSTRUCTED AND GAVE THE JURY THE QUESTION ABOUT WHETHER OR NOT THIS WAS FOR PECUNIARY GAIN. THAT, WE SUBMIT, IS REVERSIBLE ERROR. THERE IS ABSOLUTELY NO EVIDENCE IN THIS CASE AT ALL OR IN THIS RECORD THAT ROGER HARRIS DID ANYTHING FOR PECUNIARY GAIN. NOTHING. THERE IS NOTHING IN THE RECORD OR NONE OF THE EVIDENCE DEMONSTRATES OR FITS THE DEFINITION OF WHAT IS REQUIRED FOR PECUNIARY GAIN.

WAS THEIR LIFE INSURANCE INVOLVED?

WE DON'T KNOW. THERE WAS SOME TESTIMONY THAT THERE MAY HAVE BEEN SOME LIFE INSURANCE POLICIES THAT THE LIFE INSURANCE POLICIES MAY HAVE LAPSED. WE DO NOT KNOW THE BENEFICIARY OF THE LIFE INSURANCE POLICY, YOUR HONOR, NOR THE AMOUNT OF LIFE INSURANCE, SO THERE WAS NOTHING MORE THAN RAINING HERE SAY DURING THE PENALTY PHASE, AND NO ONE KNOWS ANYTHING ABOUT IT.

WAS THERE ANY STATEMENTS REGARDING PAYMENT OF CHILD SUPPORT?

THERE WAS, AS FAR AS THE CHILD SUPPORT ISSUE IS CONCERNED IT IS, I THINK THAT THE RECORD SHOWS THAT MR. HARRIS DIDN'T WANT TO LOE HIS CHILDREN,D AT WOULD E BEEN THE LEGAL PRETENSE, SO TO SPEAK, FOR COMMITING THIS MURDER.

BUT THERE WAS NO STATEMENT THAT HE, IF HE LOST HIS CHILDREN HE WOULD HAVE TO PAY CHILD SUPPORT?

IF HE LOST HIS CHILDREN OR IF HIS WIFE DIED, HE IS STILL GOING TO HAVE TO SUPPORT HIS CHILDREN. HE WASN'T GOING TO GAIN ANYTHING FROM IT. HE IS GOING TO HAVE TO SUPPORT THEM. WHAT THE RECORD DOES SHOW IS HE WAS DEFINITELY AFRAID THAT HE WAS GOING TO LOSE HIS CHILDREN. IT HAD HAPPENED TO HIM ONCE BEFORE, APPARENTLY, WITH THE ONE CHILD IN ANOTHER MARRIAGE, AND HE WAS AFRAID OF THAT, AND THAT WAS WHAT MOTIVATED HIM. NOW, YOU WILL HAVE TO, ALSO, REALIZE THAT THERE IS A LOT OF EVIDENCE IN THE RECORD THAT CAME IN AFTER THE JURY VERDICT BUT AT THE SPENCER HEARING THAT, MR. ROGER HARRIS WAS SUFFERING FROM SOME PRETTY SEVERE MENTAL PROBLEMS.

WHAT WAS THE JURY VOTE RECOMMENDING DEATH?

7-TO-5. 7-TO-5 AND THEY DID NOT HAVE THE BENEFIT OF THE VA RECORDS. NOR DID THE COURT, DID THE TRIAL COURT GET GIVE SUFFICIENT WEIGHT I SUGGEST, TO THE -- THE TRIAL COURT GIVE SUFFICIENT WEIGHT, I SUGGEST, TO THE MENTAL MITIGATORS. ROGER HARRIS -- MR. CHIEF JUSTICE

YOU ARE IN YOUR REBUTTAL TIME.

THANK YOU, YOUR HONOR. I WILL GO INTO. THAT ROGER HARRIS SERVED IN THE AIR FORCE FOR 15 YEARS. HE WAS INVOLUNTARILY RETIRED FROM THE AIR FORCE BECAUSE OF MENTAL PROBLEMS. HE WAS A DECORATED AIR FORCE TECH SERGEANT. THERE IS NOTHING IN THE RECORD TO SUGGEST THAT HE HAD ANY TRAINING IN THE AIR FORCE IN HOW TO BUILD OR CONSTRUCT A FIREARM. HE HAD NO CRIMINAL RECORD WHATSOEVER.

DO YOU KNOW WHY THIS INFORMATION THAT WAS PRESENTED AT THE SPENCER HEARING WAS JUST PRESENTED TO THE JUDGE, AS OPPOSED TO BEING PRESENTED DURING THE ACTUAL PENALTY PHASE OF THE TRIAL?

BECAUSE MR. WESLEY GOT IT. FOUND IT. WENT OUT. RESEARCHED IT. TALKED TO THE PEACH HE WILL. -- TALKED TO THE PEOPLE. THE PARENTS HAD NEVER EVEN BEEN TALKED TO ABOUT THIS.

YOU MEAN IT DIDN'T BECOME AVAILABLE UNTIL LATER? THE QUESTION IS WHY IT WASN'T PRESENTED TO THE JURY DURING THE PENALTY PHASE. IS IT BECAUSE IT DIDN'T BECOME AVAILABLE UNTIL LATER, OR WAS IT AVAILABLE AT THE TIME THE JURY WAS CONRING ITS RECOMMENDATION?

THE --

OR IS THERE AN EXPLANATION?

WE GOT IT. I MEAN, WE RESEARCHED IT, TALKED TO THE PARENTS, TALKED TO HIS MOTHER, FOUND OUT THAT HIS MOTHER SUFFERED MENTAL PROBLEMS. HIS UNCLE SUFFERED MENTAL PROBLEMS.

BUT ARE YOU SAYING A DECISION WAS MADE NOT TO PRESENT THIS TO THE JURY?

I DON'T KNOW BUT IT WASN'T SUBMITED TO THE JURY AND THEY DIDN'T HAVE THE BENEFIT OF THAT.

BUT THE MOTHER DID, IN FACT, TESTIFY AT THE PENALTY PHASE.

YES, YOUR HONOR. THANK YOU. MR. CHIEF JUSTICE

THANK YOU, COUNSEL. MS. YATES.

MAY IT PLEASE THE COURT. BARBARA YATES, ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE STATE OF FLORIDA. BEFORE I FORGET, IT I WOULD LIKE TO CREATE, CORRECT A MISIMPRESSION THAT COUNSEL MAY HAVE GIVEN TO YOU. AT THE TRIAL, MR. CONTAIN REPRESENTED THE DEFENDANT THROUGH TRIAL AND AT THE PENALTY PHASE. HE INTRODUCED EXHIBITS, WHICH INCLUDED THE, MOST OF THE STUFF THAT WAS PRESENTED AT THE SPENCER HEARING ON DOCUMENTS. HE PRESENTED THE NUMEROUS-PAGE MEDICAL EVALUATION BY DR. CRAWFORD, IN WHICH IT TALKS ABOUT THIS, THAT AND THE OTHER, AND THE DEFENDANT IS GETTING READY TO TAKE EARLY RETIREMENT AND THINGS LIKE THAT. THE MOTHER TESTIFIED. IN THAT EVALUATION OF DR. CRAWFORD WRITES, IT MENTIONS THE PARENTS ARE ALCOHOLICS. THERE IS MENTAL ILLNESS IN THE FAMILY. THAT A MATERNAL UNCLE KILLED HIMSELF. NOW, AT THE SPENCER HEARING, CURRENT COUNSEL HAD PROCURED AN AFFIDAVIT FROM MOM, WHICH IS SOMEWHAT --

CRIME FRAME BETWEEN THE ACTUAL PENALTY PHASE -- THE TIME FRAME BETWEEN THE ACTUAL PENALTY PHASE AND THE SPENCER HEARING? ANOTHER TRIAL AND PENALTY PHASE ARE CONDUCTED IN APRIL OF '98 AND APRIL OF 2000. THE SPENCER HEARING WAS WITHIN THE FIRST WEEK TO TEN DAYS OF JUNE, AND THE ACTUAL SENTENCING WAS NEAR THE END OF JUNE. THIS STUFF WAS PRESENTED TO THE JURY. IT WAS PRESENTEDED IN DOCUMENTARY FORM, AND TRIAL COUNSEL ARGUED TO THE JURY THAT THERE ARE STATUTORY MENTAL MITIGATORS. HE SECURED JURY INSTRUCTIONS ON BOTH OF THE MENTAL MITIGATORS AND ONBSTIAL DOMINATION AND DURESS, AND HE, ALSO ARGUED TO THE JURORS THAT, IF THEY DID NOT THINK THAT STATUTORY MENTAL MITIGATION HAD BEEN ESTABLISHED, IT SHOULD BE CONSIDERED IN NONSTATUTORY MITIGATION. NOW, THIS COMPLAINT THAT THE TRIAL JUDGE DID NOT DISCUSS MENTAL HEALTH AS A NONSTATUTORY MITIGATOR IN THE ORDER, IF YOU LOOK AT THE SENTENCING MEMORANDUM PRESENTED BY CURRENT COUNSEL, ALL IT MENTIONS IS STATUTORY MENTAL HEALTH MITIGATION. IT NEVER ASKS THE COURT TO CONSIDER ANY MENTAL HEALTH PROBLEMS AS NONSTATUTORY ITIGATION. IT ASKS FOR, LIKE, TWENTY OTHER ITEMS OF NONSTATUTORY MITIGATION AND THE TRIAL JUDGE VERY FAITHFULLY WENT THROUGH EVERYTHING, DISCUSSED THEM, ANALYZED THEM AND MADE A DECISION AS TO WHETHER OR NOT IT HAD BEEN DEMONSTRATED OTED RECORD.

BUT ISN'T THERE SOME EVIDENCE THAT WAS PRESENTED DURING THE SPENCER HEARING, IN THE NATURE OF MENTAL HEALTH EVIDENCE THAT WAS PRESENTED AT THE SPENCER HEARING, THAT THE TRIAL JUDGE DOES NOT INCLUDE IN HIS SENTENCING ORDER?

THERE IS A REPORT DONE IN 1995 AT THE V.A. HOSPITAL. VA MEDICAL CENTER IN LAKE CITY, BYDR. MATRA, WHS A PSYCHIATRIST IN LAKE CITY. I DO NOT BELIEVE THAT THAT WAS INCLUDED IN THE PACKAGE THAT WAS PRESENTED AT TRIAL, BUT I AM NOT EXACTLY SURE. I JUST LOOKED, I DON'T HAVE IT IN MY NOTES AS TO EXACTLY WHAT WAS IN THAT PACKAGE.

BUT WASN'T THAT MENTAL HEALTH EVIDENCE THAT WAS PRESENTEDED AT THE SPENCER HEARING, I MEAN, THE TRIAL JUDGE THOUGHT OF IT AS MITIGATING -- THE TRIAL JUDGE, IN HIS MITIGATING STATEMENT, TALKS ABOUT DEPRESSION AND ANXIETY DISORDER AND ABOUT HOW A LOT OF PEOPLE SUFFER FROM ANXIETY DISORDER AND DEPRESSION AND THEY SEEM TO FUNCTION WELL ALL THE TIME, BUT IN S SPENCER INFORMATION, THERE WAS MORE IN-DEPTH MENTAL HEALTH INFORMATION THAT, REALLY, GOES BEYOND ANXIETY DISORDER AND DEPRESSION.

YOUR HONOR, THERE IS A LITTLE BIT MORE. I WOULDN'T SAY THAT IT IS MORE IN DEPARTMENT. DOCTOR MATR As REPORT, THE ACTUAL MEAT OF IT IS ABOUT A PARAGRAPH LONG. IT MENTIONS THAT, YOU KNOW, HE HAS HAD THIS, THAT AND THE OTHER PROBLEMS, ALTHOUGH GOING BACK TO CORD'S REPORT, IT SENT RESTING THAT HE IS A MEMBER OF THE MILITARY FORCE, A MEMBER OF THE AIR FORCE. HE WASIN KUWAIT DURING DESERT STORM. HE SAW VERY, VERY LIMITED COMBAT IN KUWAIT. THE, DOCTOR CRAWFORD'S BOTTOM LINE ON THE EVALUATION WAS THAT MR. HARRIS WAS NO LONGER FIT FOR WORLDWIDE SERVICE. THERES A DIFFERENCE IN HAVING A PERSON FIT TO SERVE --

WAS HE DIAGNOSED WITH BIPOLAR DISORDER?

NO. HE WAS NOT DIAGNOSED WITH BIPOLAR.

DID SOMEONE DO --

NO. HE WAS NOT DIAGNOSED WITH BIPOLAR ON ANY OF THE MATERIALS THAT WERE PROVIDED. DR. MATRA MENTIONS THAT HARRIS TOLD HIM HE HAD BEEN DIAGNOSED WITH BIPOLAR, AND DR. MATRAS SAID THIS MAY BE AN EVOLVING SITUATION. THERE HAS BEEN ABSOLUTELY NOTHING TO SHOW THAT IT ACTUALLY EVOLVED AND THAT HE IS BIPOLAR.

AND HOW ABOUT THE FACT, ISN'T THERE SOME EVIDENCE THAT HE VERY RECENTLY HAD HAD SOME KIND OF MENTAL HEALTH CONSULTATION AND WAS THAT FACT PRESENTED TO THE JURY?

I THINK THAT IS THE '95 STUFF. WHEN HE TOOK EARLY RETIREMENT IN '94, DR. CRAWFORD RECOMMENDED COUNSELING AND STUFF, AND THEN HE SAW DR. MATRAS IN '95, BUT THAT WAS THE MOST RECENT, AND AS THE JUDGE POINTED OUT, HE HAS THESE SYMPTOMS. DR. CRAWFORD DIAGNOSED HIM AS ANXIETY DISORDER, NOT OTHERWISE SPECIFIED, AND DEPRESSION, AND THEN PHYSICAL PROBLEMS, GASTRO INTESTINAL PROBLEMS, THINGS LIKE THAT. THERE HAS NEVER BEEN ANY DIAGNOSIS OF ANY KIND OF MAJOR MENTAL ILLNESS THAT WAS PRESENTED AT ANY TIME IN THIS RECORD. SO THEY DIDN'T ASK OR DIDN'T ESTABLISH STATUTORY.

LET ME JUST ASK, THE JUDGE HAS A BASIS FOR REJECTING THAT EVIDENCE OF WHATEVER THE AIR FORCE DOCTOR SAID, AS A STATUTORY MITIGATOR, THAT HE WAS UNDER EXTREME MENTAL OR EMOTIONAL DISTURBANCE AT THE TIME OF THE CRIME, BUT ARE YOU SAYING THAT HE DOESN'T, THE JUDGE DOESN'T, THEN, HAVE AN OBLIGATION, IF IT IS UNCONTROVERTED, THAT WITHIN A FEW YEARS BEFORE THIS INCIDENT, THAT HIS DIAGNOSEIES OF HAVING THIS DIPRESSION AND ANXIETY ATTACKS OR WHATEVER THE AIR FORCE DOCTORS SAID, NOT TO GIVE IT, NOT TO MENTION IT ANY PLACE OR CONSIDER IT AT ALL? IT CAN JUST, ONCE YOU DON'T FIND IT TO BE STATUTORY MITIGATION, EVEN THOUGH IT IS UNCONTROVERTED YOU CAN JUST IGNORE IT?

JUDGE, BACK IN THE '80s, THIS COURT SAID IN LUCAS AND IT SAID MORE RECENTLY IN A LOT OF OTHER CASES, THAT THE DEFENSE BEARS SOME BURDEN ON POINTING OUT NONSTATUTORY MITIGATORS TO A COURT. THAT THERE ARE SO MANY THINGS THAT COULD BE NONSTATUTORY, THAT THE COURT DOESN'T HAVE TO JUST SIT THERE AND THINK. NOW, GRANTED THE COURT COULD HAVE. THE PROBLEM IS THEY DIDN'T.

IF THEY PUT THE EGGS IN THE TATU BASKET, THEN THEY WOULD HAVE BEEN, WITHOUT THEM, SAYING TO THE JUDGE THAT, JUDGE, IF YOU DON'T CONSIDER IT AS STATUTORY MITIGATION, THEN CONSIDER IT AS UNCONTROVERTED AND PUT IT INTO THE NEXT LEVEL OF CONSIDERATION, THEN COUNSEL HAS THAT DUTY TO DO THAT AND THE JUDGE DOESN'T KNOW IT IS THERE AND UNCONTROVERTED, THAT THE JUDGE DOES HAVE A DUTY TO CONSIDER IT?

IT DIDN'T HAPPEN. IT SHOULD HAVE HAPPENED.

WHAT ABOUT HARMLESS ERROR?

IT WAS HARMLESS ERROR. THE ORIGINAL TRIAL COUNSEL DID NOT WRITE A MEMORANDA TO THE JUDGE.

WHAT DID HE ARGUE TO THE TRIAL --

TO THE JURY?

TO THE JURY.

HE ARGUED THAT THE STATUTORY MENTAL MITIGATORS APPLIED. HE ARGUED THAT HARRIS WAS UNDER THE DOMINATION AND CONTROL OF JENNIFER PALMER AND THEN HE SAID THESE ARE STATUTORY MITIGATORS. IF YOU DON'T FIND THEM, CONSIDER THIS AS NONSTATUTORY MITIGATION, UNDER THE CATCH-ALL. SO THE STATE'S POSITION THAT, IF THERE IS ANY ERROR AND THE TRIAL COURT BROUGHT IN AN ORDER ON THIS ITEM, IT IS HARMLESS BECAUSE IT REALLY WASN'T WORTH THAT MUCH. GOING BACK TO SOME OF THE OTHER ISSUES --

BEFORE WE LEAVE THAT, IF THIS COURT DETERMINES THAT THERE IS ONLY, WELL, I WANT, THE PECUNIARY GAIN, WOULD YOU EXPLAIN TO US WHY THE TRIAL COURT WAS CORRECT TO FIND THE PECUNIARY GAIN?

IT IS A TOTALITY OF THE CIRCUMSTANCES ARGUMENT, YOUR HONOR. THE JUDGE SAYS, FOR INSTANCE, WITH THE INSURANCE, THAT THAT BY ITSELF WOULD BE ENOUGH. I THINK HE CITED CHASE --

WHAT DE HAVE THAT SUPPORTS --

TESTIMONY FROM THE VICTIS FATHER THAT THERE WERE SEVERAL SMALL INSURANCE POLICIES ON HER LIFE. I THINK ONE WAS TO THE CRED-- THROUGH THE CREDIT UNION AND ONE WAS THROUGH HER EMPLOYMENT. WE, ALSO, HAVE THE FACT THAT HE CLEANED OUT HER BANK ACCOUNT.

BEFORE WE LEAVE THE INSURANCE POLICY, DID HE, ALSO, SAY THAT HE BELIEVED THAT AT LEAST ONE OF THEM HAD BEEN CANCELLED?

HE SAID THAT HE HAD HEARD SOMETHING, BUT HE DIDN'T SAY EXACTLY HOW MANY THERE WERE TO START WITH.

AND HE DIDN'T KNOW WHO THE BENEFICIARIES WERE.

NO. NO. BUT THIS IS A TOTALITY OF CIRCUMSTANCES ARGUMENT, YOUR HONOR. HAS TO BE. THAT IS WHAT THE JUDGE FOUND. HE CLEANED OUT HER BANK ACCOUNT.

GO BACK TO CLEANING THE BANK ACCOUNT. WAS IT IN HER NAME ONLY OR WAS IT A JOINT ACCOUNT?

IT WAS HER ACCOUNT. HER NAME WAS ON IT. HE HAD ACCESS TO IT. HE HAD A SEPARATE ACCOUNT WITH HIS NAME ON IT. SHE HAD ACCESS TO. THAT HE CLAIMS OH, I HAD CLEANED BOTH ACCOUNTS SOKIPPERS WOULDN'T GET TO THEM.

WHEN YOU SAY HE HAD ESS, HE WAS A SIGNATORY ON THE ACCOUNT?

IT APPEARS SO. HE WROE A CHECK TO CLEAN OUT HER ACCOUNT, AND YOU KNOW, HE WAS SAYING, WELL, I HAD TO CLEAN OUT THE ACCOUNT BECAUSE OTHERWISE THE KIDNAPPERS WOULD GET TO THE MONEY. THAT SAME REASONING APPLIES TO HIS ACCOUNT AS WELL, BECAUSE SHE HAD EQUAL ACCESS TO IT. IF THE KIDNAPPERS GOT OUT OF HER ACCOUNT, THEY WOULD HAVE GOTTN OUT OF HIS. MR. HARRIS STARTED LYING WHEN THE POLE SHOWED UP AND JUST CONTINUED TO DO SO. MOREOVER, FAMILY TESTIFIED THAT THERE IS A PICTURE, ONE OF THE PICTURES THAT THEY COMPLAIN ABOUT IS INSIDE THE VAN, HER PURSE IS UPSIDE DOWN BETWEEN THE SEATS AND THE STUFF FROM THE PURSE IS IN IT. FAMILY TESTIFIED THAT HER ATM CARD WAS ALWAYS IN HER PURSE. HER ATM CARD WAS FOUND AT THE HOUSE. THAT SUPPORTS THIS FOR PECUNIARY GAIN, THE FACT THAT HE WROTE A CHECK INSTEAD OF USING HERTM CARD DOESN'T DESTROY THAT.

CAN THE STATE PROVE THAT AGGRAVATION, THOUGH, BY SPECULATION, THAT YOU ARE GOING INTO, HE, IT IS A JOINT ACCOUNT, WHICH I GATHER IT WAS, IS SPECULATION AS TO WHOSE MONEY WAS IN IT, HOW MUCH MONEY WAS PUT IN IT. THAT DOESN'T PROVE THAT THAT WAS THE MOTIVATING FACTOR FOR THE MURDER.

T PART OF IT, JUDGE, AND I AM NOT AN EXPERT ON BANKING LAW. I AM NOT EXACTLY SURE WHAT WAS GOING ON, BUT HE ONLY TOOK THE ONET OF HER ACCOUNT. HE DIDN'T TAKE THE MONEY OUT OF HIS ACCOUNT, TOO, THEN WE, ALSO, HAVE, AND THESE ARE LOGICAL INFERENCES THAT ARE BEING DRAWN THCAN BE DRAWN FROM THE EVIDENCE. THEY ARE SAYING HE WASN'T WORRIED ABOUT HAVING TO PAY SUPPORT. HE HAD TO SUPPORT HIS KIDS ANYWAY. WE ALL KNOW WHAT HAPPENS IN A DIVORCE. MOM USUALLY GETS THE KIDS.

WE DON'T HAVE ANYTHING, OTHER THAN THE FACT THAT WHEN YOU ARE DIVORCED AND THERE ARE CHILDREN INVOLVED, THE PARTIES ARE GOING TO PAY CHILD SUPPORT. OTHER THAN THAT FACT, WHATO WE HAVE THAT WOULD SUPPORT THAT HE AS CONCERNED ABOUT PAG CHILD SUPPORT?

THERE IS NO STATEMENT FROM HIM THAT WE HAVE "I AM CONCERNED ABOUT PAYING CHILD SUPPORT." BUT, YOUR HONOR, ST LING AT THE REALITY OF THE SITUATION, HE HAS AN ONGOING AFFAIR WITH HIS PARAMOUR. HE IS NOT STOPPING IT. THE VICTIM IS GETTING UPSET ABOUT THIS. SHE THREATENED TO LEAVE HIM AND TAKE THE KIDS. IF SHE DOES SO, IF THERE IS A DIVORCE, HE IS GOING TO WIND UP SUPPORTING THOSE KIDS. WE ALL KNOW THAT WHEN THERE IS A DIVORCE AND A DIVISION OF MARITAL ASSETS, EVERYBODY LOSES. IT IS MORE DIFFICULT AND MORE EXPENSIVE TO SUPPORT TWO HOUSEHOLDS THAN ONE. HE WAS LOOKING AT THAT. THIS COURT HAS FOUND THAT PECUNIARY GAIN IS SUPPORTED BY KILLING SOMEONE TO AVOID PAYING SUPPORT. I THINK THAT WAS EITHER THOMAS OR WALKER THAT I CITED IN THE BRIEF.

LET ME TAKE YOU BACK TO MR. TAYLOR LAST ALLUDED TO, AND YOU -- AND I BELIEVE THAT YOU COVERED IT GENERALLY, BUT WHAT ABOUT THE VA RECORDS? THE VA RECORDS THAT CAME IN IN E SNCER HEARING, DID THEY NOT COME IN BEFORE THE JURY?

NO. A PACKAGE OF RECORDS, INCLUDING DR. CRAWFORD'S MULTI-PAGE REPORT FROM 1994, SOME KIND OF STATEMENT FROM HIS MOTHER. THERE WERE SOME OF HIS, THERE WERE PHOTOGRAPHS OF A AWARD AND THINGS THAT HE HAD WON IN THE MILITARY AND PAPER ACCOMMODATION  ACCOMMODATIONS INCLUDEDED IN THAT. THOSE WERE ALL PRESENTED AT DOCUMENTARY EVIDENCE --

BUT THE VETERANS ADMINISTRATION HOSPITAL.

HE WAS NEVER HOSPITALIZED.

HOW ABOUT HIS MEDAL RECORDS FROM THE -- HOW ABOUT HIS MEDICAL RECORDS FROM THE VETERANS ADMINISTRATION?

I DID NOT LIST EVERYTHING THAT WAS IN THERE, AND I CANNOT REMEMBER IF THEY WERE IN BOTH OR JUST IN ONE. THE BULK OF THE INFORMATION ABOUT IT, HOWEVER, WAS PRESENTED TO THE JURY BY THE TRIAL COUNSEL.

AND WHAT DID YOU SAY THE MOST RECENT TIME THAT HE HAD BEEN TREATEDED FOR MENTAL PROBLEMS WAS SOME FIVE YEARS?

I AM NOT SURE THAT HE WAS EVER TREATED FOR MENTAL PROBLEMS YOUR HONOR. HE HAD A WHOLE BUNCH OF COMPLAINTS.

WHAT WAS THE MOST RECENT DAY THAT HE WAS TREATED FOR THOSE?

GOSH.

FOR BROADLY WHAT WE CALL MENTAL PROBLEMS.

THERE WERE SOME MEDICAL RECORDS SUBMITTED AT THE SPENCER HEARING. I THINK I NOTICED A DATE SOMETIME IN '98. AND THERE WERE SOME FROM '96. THESE ARE NOT, YOU KNOW, A CHRONOLOGY OF YEARS AND YEARS AND YEARS. IT IS JUST A PAGE HERE AND A PAGE THERE. BUT ANYWAY, GOING BACK TO THE GUILT PHASE, THE COMPLAINT ABOUT ALLOWING SEAN OR HARDING TO JUSTIFY -- ABOUT ALLOWING SHANNON HARDING TO JUSTIFY AS TO JENNIFER PALMER'S PRIOR STATES. THIS IS SECTION 91 OF THE EVIDENCE CODE THAT SAYS IT IS NOT HEARSAY, WHEN YOU INTRODUCE A WITNESS'S PRIOR INCONSISTENT STATEMENT TO REBUT AN EXPRESS OR IMPLIED ALLEGATION THAT IS TESTIMONY, EXPRESSED OR IMPLIED MOTIVE AS TO FABRICATION.

BUT THAT IS NOT THE ARGUMENT. THE ARGUMENT IS FROM OPPOSING COUNSEL, IS THAT FOR THE LIMITED PURPOSE, IT COULD COME IN BUT IN THIS INSTANCE IT WAS ABUSED, BECAUSE ONCE THE CORROBORATING WITNESS CAME ON, SHE JUST WENT ON AND ON AND TALKED ABOUT THINGS.

YOU HAVE TO LOOK AT JENNIFER PALMER'S TESTIMONY. HER TESTIMONY WENT ON AND ON, AND YOU HAVE TO SEE RIGHT OUT OF THE BOX THE PROSECUTOR ASKED HER DO YOU REMEMBER GIVING A DEPOSITION? YOU LIED IN THAT DEPOSITION, DIDN'T YOU? YOU ALSO LIED TO THE DEPP FIST, WHEN THEY FIRST -- TO THE DEPUTIES WHEN THEY FIRST TALKED TO YOU, DIDN'T YOU? AND THEN HE WENT ON AND SAID YOU EXPECT TO GET A DEAL OUT OF THIS DON'T YOU? SHE SAID I AM LOOKING AT UP TO 60 YEARS IN PRISON, CHARGED WITH ACCESSORY AFTER THE FACT, AND HE SAID AND IT WAS THE STATE'S POSITION THAT HE WAS IMPEACHING HER, AND HE DID NOT COME RIGHT OUT AND SAY YOU JUST MADE UP THIS WITHIN THE LAST TWO WEEKS, DIDN'T YOU, OR YOU MADE UP THIS STORY SINCE YOUR ARREST, DIDN'T YOU? ALL OF THE STATEMENTS THAT SEAN OR HARDING TESTIFIED TO WERE MADE BEFORE THE COPS EVER GOT TO JENNIFER PALMER -- STATEMENTS THAT SHANNON HARDING TESTIFIED TO WERE MADE BEFORE THE COPS EVER GOT TO JENNIFER PALMER, AND ATTACKING PALMER, THAT PALMER WAS THE INSTIGATE OR OF ALL OF THIS, SHE SAID THAT SHE WAS NOT. AT THE END, COUNSEL -- AT THE END, QUOTE, "WE PLANNED THIS MURDER". HE TOLD JENNIFER PALMER ABOUT IT AND THAT IS WHAT SHANNON HARDING TESTIFIED TO AND, GENTLEMEN AND, YES, IT IS TESTIFIED TO.

WHAT WAS JENNIFER AS -- WHAT WAS MISS HARDING'S TESTIMONY?

IT WAS NOT AS LONG AS GENTER PALMER'S.

WHAT WAS THE NATURE OF IT?

THE NATURE OF IT WAS THAT SHE AND JENNIFER PALMER WERE GOOD FRIENDS. THEY SPENT A LOT OF TIME TOGETHER. JENNIFER PALMER CONFIDED IN HER. ANYTHING THAT HARRIS DID, WHATEVER, JENNIFER WENT AND TOLD SHANNON. SHANNON CAME UP WITH THE IDEA. SHANNON WORKED AT A TACO BELL. WHICH ONE, I DON'T KNOW, AND JENNIFER WAS ON THE PHONE WITH HARRIS AT ONE POINT, AND HE WAS ASKING HER FOR A DARK PLACE. HARRIS WENT THROUGH SEVERAL PLANS ABOUT HOW TO KILL HIS WIFE AND IT EXTENDED OVER A MONTH AND MONTHS, SEVERAL MONTHS, AND SHANNON CAME UP AND SAID, YOU KNOW, WHERE IS A DARK PLACE THAT WE COULD DUMP A BODY? SHANNON SAID THE RACETRACK IS DARK. JENNIFER SAID I NEED TO DUMP STUFF, AND SHANNON SAID, WELL, HEY, TRY THE DUMPSTER AT THIS TRAILER PARK, WHERE SHE HAD LIVED BEFORE, AND THE DUMPSTER AT THE TACO BELL, AND IN FACT, PALMER USED THOSE PLACES TO DUMP THE STUFF. THIS WAS A HOMEMADE WEAPON. HE IS A MECHANIC. HE HAD BEEN TRAINED IN WEAPONRY IN THE AIR FORCE. HE MADE A WEAPON, AND THEN HE DISASSEMBLED IT, THEN JENNIFER PALMER DID TESTIFY THAT HARRIS TOLD HER THAT HE WELDED THE PIECES TOGETHER TO MAKE A WEAPON. IT WAS NOT WELDED TOGETHER. AND SHE MAY HAVE JUST MISUNDERSTOOD. HE MAY HAVE TOLD HER SOMETHING THAT WAS, WASN'T TRUE. WE DON'T KNOW.

IT WAS A HOMEMADE FIREARM?

A ZIP GUN.

THERE IS NOT A QUESTION THAT THERE WAS A BULLET --

SEE, NOW, IT WASN'T A BULLET. IT WAS RIGGED UP TO FIRE A NAIL PUNCH INTO HER HEAD. A NAIL PUNCH ABOUT THAT LONG IN HEITS, WHEN YOU LOOK AT IT YOU WILL SEE IT, AND IT WAS SET UP. THERE IS A CASING FROM A 357 CARTRIDGE IN ONE PIECE OF IT. SHE NEVER SAW THE GUN. SHE NEVER SAW THE WEAPON. SHE NEVER SAW THE PIECES OF THE WEAPON. WHEN HE CALLED HER AT TEN O'CLOCK ON DECEMBER 3, TO COME OVER AND HELP HIM CLEANUP AND SAID "I DID IT", HE WAS GATHERING UP THINGS. HE BROUGHT HER SEVERAL BAGS OF STUFF THAT HE PUT IN HER CAR AND HE TOLD HER TO DUMP THEM. HE BROUGHT A WHITE PLASTIC BAG AND HE SAID THE GUN IS IN HERE, AND ON THE DRIVE BACK, HE SAID, YOU KNOW, SHE ASKED HIM ABOUT THE GUN, BECAUSE WHEN HE GOT -- HE DROVE, THE VICTIM WAS KILLED IN THE VAN. HARRIS DROVE THE VAN TO A TRUCK STOP OFF I-10, PALMER FOLLOWED HIM, HE CAME TO HER CAR. SHE DROVE HIM BACK TO HIS HOUSE. WHEN HE GOT INTO PALMER'S CAR, HE SAID, GOSH, IT SMELLS LIKE GUN POWDERNER HERE. YOU NEED TO SPRAY THIS THING AND CLEAN IT OUT. THEN HE -- SO HE CALLED THIS WITNESS, PALMER, FROM THE TRUCK STOP AFTER --

NO. NO. AT THE HOUSE.

BUT HE TELLS HER TO MEET HIM AT THE TRUCK STOP?

NO. TELLS HER TO MEET HIM AT THE HOUSE. SHE GOES OVER THERE AND HELPS HIM CLEANUP AFTER THE MURDER. SHE DOESN'T SEE THE VICTIM. THE VICTIM IS OUT IN THE VAN. ONE OF THE THINGS ABOUT THE PHOTOGRAPHS, TOO. THE PHOTOGRAPHS WERE USED BY THE MEDICAL EXAMINER TO EXPLAINTHE WOUND. IT IS AN IRREGULARLY-SHAPED WOUND, NOT ROUND LIKE A BULLET HOLE. IT IS A IRREGUY-SHAPED WOUND. THE TRIAL COURT, IN INTRODUCING THE EVIDENCE, THERE HAS BEEN NO DISCRETION SHOWN. THE PICTURES, THEMSELVES, THE VAN WAS CRIME SCENE AND THEY WERE VERY IMPORTANT, BUT GETTING BACK --

HOW DO WE GET TO, YOU KNOW, AS A PART OF THE SENTENCING ORDER, THE TRIAL JUDGE GOES THROUGH THIS DISCUSSION ABOUT HOW SHE WAS IN THE SEXUAL POSITION AND THOUGHT SHE WAS GOING, BUT NOW YOU ARE SAYING THAT THIS MURDER TOOK PLACE AT THE HOUSE AND SHE WAS PUT INTO THE VAN, SO HOW DO WE GET THIS INFORMATION ABOUT HAVING --

YOUR HONOR, SHE WAS KILLED IN THE VAN. A NEIGHBOR OF THE HARRIS ESTESFIED THAT, ABOUT NINE-THIRTY THE EVENING OF DECEMBER 3, HE HEARD A LARGE-CALIBER GUNSHOT FROM THE DIRECTION OF THE HARRIS HOME. SHE WAS IN THE VAN. THERE IS TESTIMONY, I BELIEVE, BY AN FDLE SEROLOGIST, THAT A SCHWAB SHOWED THE PRESENCE OF SEMEN IN THE VICTIM. IT IS PROBABLY SUPPORTABLE THAT HE TALKED HER INTO GOING INTO THE VAN AND HAVING SEXUAL ENCOUNTER. SHE IS IN, THIS IS A THREE-SEAT VAN. FRONT SEAT, SHORT MIDDLE SEAT, BACKSEAT. SHE IS OVER THE BACKSEAT, FACING THE BACK. THE GUN SHOT WOUND --

THE SEMEN IS WHAT WE GET TO SAY THAT THEY HAD SEX IN THE VAN.

WELL, YOU COULD INFER THAT FROM THERE. THAT WASN'T A MAJOR THING. HE TALKED HER INTO GOING INTO THE VAN SOMEHOW, AND SHE WAS SHOT IN THE VAN. HER BODY IS, AFTER SHE IS SHOT AND DEAD, HE CALLS JENNIFER PALMER AND SAYS I DID IT. COME HELP ME. WHEN PALMER GOT TO THE HOUSE, HE WAS CLEANING THINGS UP, PUTTING STUFF IN BAG BAGS. HEOVE THE -- STUFF IN BAGS. HE DROVE THE VAN OVER TO THIS PARKING LOT AND LEFT IT.

THEN ACCORDING TO PALMER, HE AS G TO TL POLICE THAT TH WAS A KIDP SOTHIN.

YES. IS STORY TO THE POLICE, RIGHT OUT OF THE BAT, WAS WE GOT HOME. WE FIXED SUPER. I WAS WATCHING TV. SHE HAD BOUGHT ME A JACK AT WAL-MART. I ALREADY HAD A JACK LIKE. THAT I DIDN'T NEED THIS ONE. ABOUT TEN O'CLOCK, SHE DECIDED HAT SHE WAS GOING TO RETURN IT TO WAL-MART. I FELL ASLEEP ON THE SOFA. I WOKE UP ABOUT FIVE OR SO IN THE MORNING, CHECKED ON THE BOYS. THEY WERE OKAY. SHE WASN'T IN BED. I WENT BACK AND FELL BACK TO SLEEP ON THE SOFA. WHEN I GOT UP IN THE MORNING OF DECEMBER 4, I WENT TO WORK AT WAL-MART. I CALLED HER WORK. SHE HADN'T SHOWED UP THERE, SO I CALLED 911 AND REPORTED HER MISSING.

AND HE HAD ANOTHER VEHICLE?

YES. HE HAD A. Y HAD A VAN AND PASSENGER CAR. SHE USED THE VAN PRIMARILY BECAUSE OF THE KIDS.

W MANY PICTURES ARE WE TALKING ABOUT? IN EVIDENCE RELATIVE TO THE BODY AND BODY FLUIDS? I THINK THERE IS EIGHT THER. MAYBE . THE FIRST FOUR ARE THE MEDICAL EXAMINER. THERE IS ONE THAT SHOWS THE BACK OF THE HEAD WI THE WOUND THAT HAS BEEN SHAVED A LITTLE BIT BUT HASN'T BEEN CLEANED UP. THE NEXT TWO ARE THE CLEANED SKULL, THE PORTION OF SKULL THAT HAS THE WOUND IN IT. ONE IS FROM OUTSIDE LOOKING IN. THE OTHER, THE PIECE IS FLIPPED OVER AND IT IS FROM THE INSIDE LOOKING OUT. THERE IS A DIFFERENCE IN THE SHAPE OF THE HOLE. AND THAT WAS IMPORTANT, BECAUSE THIS WAS A MORE OR LESS TRIANGULAR-SHAPED NAIL PUCHBLING THERE. IS ANOTHER -- NAIL PUNCH. THERE IS ANOTHER, A FOURTH ONE THERE, IS THE SKULL OPENED UP WITH THE NAIL PUNCH IN IT, SHOWING THAT. THEN WE HAVE FOUR, I BELIEVE, AKEN IN THE VAN, TAKEN FROM DIFFERENT ANGLES. THEY SHOW THERE IS ONE THAT IS CLOSER THAN THEOTHER. VICTM IS IN THE, YOU KNOW, SHE IS SHOWN OVER, YOU KNOW, THE BACKSEAT OF THE VAN. THERE IS, ALSO, THE ONE WHERE THE PURSE --

HOW SHE DIED, WAS THAT AN ISSUE REALLY?

YES, YOUR HONOR. IT IS ALWAYS AN ISSUE IN A CASE, AND THE STATE WAS PROVING THIS WAS MURDER.

A SHOT IN THE HEAD FROM --

YES. THERE WAS NO BULLET. THERE WAS A GUNSHOT BUT IT WAS NOT --

WHY DID THE STATE NEEDO MANY PICTURES TO PROVE THE OBVIOUS?

JUDGE, THERE WEREN'T SO MANY. YOU KNOW, YOU HAVE CASES WHERE THE COURT HAS SAID THIS IS TOO MUCH, WHEN, YOU KNOW, THERE ARE BUNCHES AND BUNCHES OF PHOTOGRAPHS. ALSO THERE WAS ONE OF THE CASES THAT HE RELIED ON, WHERE THE STATE INTRODUCED A TWO-FOOT BY THREE-FOOT BLOW-UP OF THE VICTIM'S UPPER TORSO, SHOWING THE INJURIES. NOTHING LIKE THAT HAPPENED HERE. IT IS JUST DEAD PEOPLE AREN'T NICE, BUT THESE WERE USED BY THE WITNESSES, TO ILLUSTRATE FOR THE JURY, EXACTLY WHAT THEY WERE TESTIFYING ABOUT. THE COURT CONSIDERED THIS AND THERE HAS BEEN NO ABUSE OF DISCRETION SHOWN IN THESE PHOTOGRAPHS.

CAN WE GO BACK TO THE SENTENCING FOR JUST A MOMENT?

SURE.

IF WE ASSUME, IF YOU ASSUME THAT THE COURT SAYS THAT THIS WAS NOT A CASE OF PECUNIARY GAIN THEN WE ARE LEFT WITH COLD, CALCULATED, AND HOW DOES THAT SQUARE, IN RELATIONSHIP TO OUR PROPONALITY CASES?

DEATS LL WARRA. IED AT LEAST ONE CASE. OOKD, E AS A SINGAGGRAVATOR. THIS IS --CKWOOD, WHERE THERE IS A GLE AGGRAVATOR.

WHAT KIND OF MITIGATION IS THERE IN BLACKWOOD?

LET ME CHECK, I TK HE MAY E HAD THE TUTORY MENTAL MITIGATORS. HUM-UM. NO. OH, INCIDENTALLY, YOU ASKED ABOUT ALLOWING IN PRIOR CONSISTENT STATES. ON PAGE TEN OF MY BRIEF, I CITE FIVE OR SIX CASES, WHERE EXACTLY WHAT HAPPDHERAS BEEN ALLOWED FOR THE SAME REASON. LET ME FIND THAT CITE TO BLACKWOOD REAL FAST. BLACKWOOD HAD NO SIGNIFICANT PRIOR CRIMINAL HISTORY, WHICH IS THE SAME STATUTORY MITIGATORS OR AS IN THIS CASE, AND THE -- THE SAME STATUTORY MITIGATOR AS IN THIS CASE AND THE NONSTATUTORY MITIGATION. THIS SON OF THE MOST COLD, CALCULATED AND PREMEDITATED MURDER YOU ARE GOING TO FIND. HE PLANNED THIS FOR LITERALLY MONTHS. EVERYBODY ASKED ME HE WORKS AT WAL-MART. WHY DIDN'T HE JUST BUY A.22 AND USE THAT? NO. HE HAD TO MANUFACTURE A FIREARM, AND THEN IT WAS MANUFACTURED IN A METHOD THAT IT COULD BE TAKEN APART AND DISPOSED OF SO THAT IT COULD BE COVERED UP, AND I AM SORRY FOR WHAT DEFENSE COUNSEL SAYS, BUT THINKING THAT YOU MIGHT LOSE YOUR CHILDREN IN A DIVORCE IS NOT A MORAL OR LEGAL JUSTIFICATION FOR MURDER. THIS COURT HAS NEVER HELD IT HAS AND NEVER SHOULD, EVEN IF THIS COURT WERE TO SAY PECUNIARY GAIN WAS A DECISION THAT WAS SUPPORTED, THERE IS MORE THAN ENOUGH HERE TO WARRANT AFFIRMING A DEATH SENTENCE, AND THAT IS WHAT THE STATE ASKS YOU TO DO. THANK YOU. MR. CHIEF JUSTICE

THANK YOU, MS. YATES. MR. TAYLOR, REBUTTAL?

YES, YOUR HONOR. BLACKWOOD WAS A SINGLE AGGRAVATOR CASE. THAT IS TRUE. BUT IN BLACKWOOD, THE APPELLANT MEN MANNULELY STRANGLED -- MANUALLY STRANGLED THE VICTIM WITH WIRE, LODGED A BAR BE SOAP AND WASHCLOTH IN THE BACK OF HER THROAT, SMOTHERED HER WITH A PILLOW, EXTENSIVE HEMORRHAGING IN THE VICTIM'S EYES INDICATED THAT PPELLANT HAD APPLIED PRESSURE TO HER NECK, RELEASED IT AND THENPPLIED IT. THERE WAS, ALSO, EVIDENCE THAT SHE STRUGGLED FOR HER LIFE DURING THIS ATTACK. HER HAIR WAS RIPPED FROM HER SCALP. THERE WERE BRUISES ON HER HEAD, ECK AND BODY. AND OBJECTS ON A BEDSIDE THAT WERE KNOCKED FROM A TABLE. IN LIGHT OF THIS EVIDENCE, THIS COURT CONCLUDED THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING THE HEINOUS AND AT ATROCIOUS AND CRUEL AGGRAVATOR. THIS IS A LOT DIFFERENT FROM WHAT WE HAVE HERE. WE HAVE SOMEONE WHO APPARENTLY, NOT APPARENTLY BUT DIED AS A RESULT OF A GUNSHOT WOUND TO THE BACK OF THE HEAD. THERE IS NO STRUNG HE WILL. THERE IS NONE OF THAT -- THERE IS NO STRUGGLE. THERE IS NONE OF THAT LIKE WE HAVE IN PLAQUE WOOD. ALSO THERE WAS A QUESTION ABOUT -- IN BLACKWOOD. ALSO THERE WAS A QUESTION ABOUT SEMEN. OUR REVIEW OF THE RECORD FOUND THAT THE POLICE FOUND NO SEMEN IN THE VICTIM'S VAGION, A AND I WOULD CITE THE COURT TO VOLUME 15, PAGES 966 AND 68 OF THE RECORD. AS TO THE --

MR. TAYLOR, WHAT ABOUT, WHAT ARE THE VA RECORDS THAT YOU ARE REFERRING TO THAT ONLY WERE PRESENTED AT THE SPENCER HEARING AND NOT PRESENTED TO THE JURY?

YES, YOUR HONOR. THOSE WERE, IF I MAY GO BACK IN OUR BRIEF, WE MENTION ON PAGE 82 THAT IN 1966, THE VA CLINIC DIAGNOSED ROGER HARRIS AS SUFFERING FROM BY FROM BIPOLAR TWO DISORDER AND WAS ON THE MEDICINE DEPAKOTE.

WHAT WAS THAT?

DEPAKOTE.

WHAT YEAR? WAS IT '96?

OPEN 96 BUT HE HAD A PSYCHIATRIC CONSULT 60 DAYS BEFORE THE CRIME. THOSE WERE THE RECORDS THAT WERE PRODUCED THAT THE JURY DID NOT HAVE THE BENEFIT OF, SO IT IS MY UNDERSTANDING THAT THE JURY HAD THE BENEFIT OF EVERYTHING UP U THE TIME THAT HE WAS INVOLUNTARILY RETIRED FROM THE AIR FORCE, BECAUSE OF MENTAL PROBLEMS, AND THEN HE,T WOULD HAVE BEEN IN ABOUT 1995, AND THIS EVENT OCCURRED IN '96. HE WAS OUT OF WORK FOR ABOUT A YEAR. HE THEN CONTINUED TO HAVE PROGRESSIVE MOOD SWINGS AND MENTAL PROBLEMS AND CONTINUED TO GO TO THE VA FOR PSYCHIATRIC COUNSELING, AND THE JURY DIDN'T HAVE THE BENEFIT OF WHAT HAPPENED AFTER HE GOT OUT OF THE AIR FORCE.

WHAT IS YOUR RESPONSE TO MS. YATES'S ARGUMENT THAT IT WAS THIS EVIDENCE, AT LEAST AT THE SPENCER HEARING, WAS ONLY ADVANCED AS BEING STATUTORY MITIGATION. IT WASN'T REQUESTED THAT THE JUDGE CONSIDER IT, IF HE DIDN'T FIND STATUTORY MITIGATION AS SIGNIFICANT NONSTATUTORY MITIGATION?

IT WAS MY UNDERSTANDING THAT, YOUR HONOR, AT TRIAL LEVEL DURING THE PENALTY ARGCRUELTY, IT WAS ARGUED THAT, IF YOU DON'T ACCEPT THIS AS STATUTORY, THEN ACCEPT IT AS A NONSTATUTORY MITIGATOR. AT THE SPENCER HEARING, IN OUR SPENCER MEMORANDUM, WE ARGUED IT AS A STATUTORY MITIGATOR. IN OUR BRIEF, WE HAVE ARGUED THAT, IT IF IT IS NOT CONSIDERED AS A STATUTORY MITIGATOR, IT SHOULD AT LEAST BE CONSIDERED AS NONSTATUTORY MITIGATOR. HOW COULD YOU JUST DISREGARD?

I THINK THE QUESTION IS DID YOU ASK THE TRIAL JUDGE TO DO THAT?

AT THE TRIAL LEVEL IN THE PENALTY PHASE, IT WAS ASKED, TO MY UNDERSTANDING, YOUR HONOR, BUT NOT AT THE SPENCER HEARING, NO.

OKAY. NOT IN YOUR MEMORANDUM.

IT IS IN ALL OF THE RECORDS ARE IN THE MEMORANDUM. IT IS NOT IN THE MEMORANDUM SPECIFICALLY. IF YOU DON'T FIND THIS TO BE A STATUTORY MITIGATOR, THEN PLEASE FIND IT TO BE A NONSTATUTORY MITIGATOR, BECAUSE IT WAS ASKED FOR BY THE TRIAL --

YOUR ANSWER IS IT WOULD BE SELF-EVIDENT, AND UNCONTROVERTED THAT IF YOU ARE NOT GOING TO CONSIDER IT AS STATUTORY, THEN YOU HAVE GOT TO CONSIDER IT SOMEPLACE.

ABSOLUTELY AND THAT EVEN IN THE COURT'S RULING, HE ADDRESSES AS TO WHY HE DOESN'T BELIEVE IT SHOULD BE A STATUTORY MITIGATOR, BUT, NO, THERE IS NOTHING SAID ABOUT IT BEING A NONSTATUTORY MITIGATOR. AND WE KIND OF THREW IT ALL IN --

WAS IT RAISED TO THE TRIAL COURT?

IT WAS RAISED AT THE TRIAL IN THE PENALTY PHASE.

WAS IT AFTER THE TRIAL JUDGE ENTERED THE SENTENCING ORDER, DID, WAS THERE A MOTION FOR REHEARING?

NO, SIR. NO, SIR. AND WE DID ASK FOR MORE TIME BETWEEN WHEN WE GOT INVOLVED IN THE CASE TO THE SPENCER HEARING, TO DEVELOP THIS VA MATTER THAT CAME TO OUR ATTENTION AND WE WERE NOT GRANTED THAT EXTENSION IN ORDER TO DO. THAT GETTING BACK TO THE AGGRAVATORS, MY UNDERSTANDING IS THAT AN AGGRAVATOR HAS TO BE PROVEN BEYOND A REASONABLE DOUBT. THE PECUNIARY GAIN AGGRAVATOR IS NOTHING MORE THAN SPEC LAKES. THERE IS NO -- MORE THAN SPECULATION. THERE IS NO TESTIMONY IN THE RECORD WHATSOEVER THAT ROGER HARRIS WANTED TO KILL HIS WIFE TO GAIN ANYTHING MATERIAL. HE WAS ON THE JOINT ACCOUNT WITH HIS WIFE. THAT WAS HIS MONEY, TOO. THERE WAS NO GAIN. THERE WAS SOME MENTION OF SOME LAND THAT WAS TRANSFERRED 60 DAYS OR A COUPLE OF MONTHS PRIOR TO THE CRIME. WELL, THAT DEFIES LODGE LOGIC. -- THAT DEFIES LOGIC. IF THAT WAS FOR PECUNIARY GAIN, HE WOULDN'T HAVE HAD TO DO IT. THE MURDER, TO TRANSFER THE PROPERTY WOULD HAVE BEEN AN UNNECESSARY STEP. IN THE EVENT WE ARE JUST SPECULATING AS TO WHETHER OR NOT THERE WERE INSURANCE POLICIES AND WE ARE SPECULATING AS TO ALL OF THE PECUNIARY GAIN. IT CERTAINLY WASN'T PROVEN BEYOND A REASONABLE DOUBT. WHEN YOU --

A LOGICAL INFERENCE, THOUGH, THAT IF SOMEBODY IS WANTING TO AVOID A DIVORCE, IT SORT OF JUST THEY HAVE GOT CHILDREN AND HOW LONG WAS THIS MARRIAGE?

IT WASN'T A LENGTHY MARRIAGE. I THINK MORE THAN SIX YEARS.

THAT YOU ARE GOING TO HAVE FINANCIAL CONSEQUENCES. WHY ISN'T THAT A LOGICAL INFERENCE FROM THIS STATE OF THE RECORD, AS FOLLOWING FROM THE FACT THAT HE WANTED TO AVOID HAVING TO HAVE A DIVORCE?

DON'T WE HAVE TO INFER THAT, IF ROGER AND DONNA GOT DIVORCED, THAT YOU HAVE TO, FIRST, INFER THAT SHE IS GOING TO GET CUSTODY. THEN YOU HAVE TO INFER THAT HE IS NOT GOING TO BE THE PRIMARY RESIDENTIAL PARENT.

IT IS REALLY HIS MOTIVATION, THEN, IS WHAT WE ARE QUESTIONING WHICH IS, ALSO, IN ANY PECUNIARY GAIN SITUATION, IS A STATE OF MIND SITUATION, AND YOU ARE JUST THE QUESTION IS IS IT A LOGICAL REASONABLE INFERENCE FROM THE RECORD? YOU ARE SAYING IT IS NOT THE MOST. IT IS NOT MORE LOGICAL THAN SOMETHING ELSE, AND SO WE SHOULDN'T BE SPECULATING.

IT CERTAINLY HASN'T BEEN PROVEN BEYOND A REASONABLE DOUBT IN ANY EVENT. I MEAN, HE COULD HAVE GOTTEN CUSTODY. SHE COULD HAVE PAID HIM CHILD SUPPORT. WE DON'T KNOW. THERE WAS NO COURT PROCEEDING WHERE HE WAS FIXING TO LOSE HIS CHILDREN AND HAVE TO PAY CHILD SUPPORT. THAT WASN'T EVIDENT. THERE WAS, BUT THERE WAS, FROM JENNIFER PALMER, TESTIMONY THAT HE DID NOT WANT HER TO LEAVE WITH HIS CHILDREN. HE WANTEDED TO KEEP HIS BOYS. AND THAT WAS THE MOTIVATION. MR. CHIEF JUSTICE

THANK YOU, MR. TAYLOR. THANK YOU, COUNSEL, IT FOR YOUR ASSISTANCE IN THIS CASE. THE COURT WILL BE IN RECESS.