GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS TERRY BACK US. I REPRESENT LANCELOT ARMSTRONG IN THE INSTANT CASE, THE CASE ON APPEAL FROM THE DENIAL OF A 3.850 MOTION AFTER A LIMITED EVIDENTIARY HEARING ON TWO ISSUES REGARDING THE SENTENCING AT MR. ARMSTRONG'S DEATH-PENALTY CASE FORM THE ISSUES BEFORE THE COURT IS WHETHER A SENTENCING JURY'S DECISION THAT CONSIDERED MATERIALLY INACCURATE INFORMATION, IN THE FORM OF AN UNCONSTITUTIONAL AGGRAVATING CIRCUMSTANCE, CAN BE HARMLESS. UNDER CURRENT FLORIDA IT IS OUR CON TENS THAT THE ANSWER TO THAT SHOULD BE NO AND THAT MR. ARMSTRONG SHOULD BE ALLOWED A FURTHER PROCEEDING. IT WAS A FELONY CONVICTION OF INDECENT ASSAULT AND BATTERY ON A CHILD OF 14 YEARS OF AGE. THE ONLY TWO WITNESSES THAT WERE PRESENTED ON THE STATE'S CASE, IN AGGRAVATION, WERE WITNESSES FROM THIS MASSACHUSETTS CONVICTION, AND ONE OF THE WITNESSES WAS, IN FACT, THE VICTIM, WHO WAS BROUGHT DOWN TO TESTIFY IN DETAIL, ABOUT THE SEXUAL ASSAULTS THAT SHE SUFFERED DURING --

WAS THERE ANY OTHER PRIOR VIOLENT FELONIES DISCUSSED IN THE STATE'S CASE IN AGGRAVATION?

THERE WERE NO OTHER WITNESSES PRESENTED AS TO THE PRIOR, OTHER PRIORS, AND THOSE WERE CONTEMPORANEOUS PRIORS THAT WERE --

BUT THE STATE DID, IN FACT, ARGUE --

ARGUED THAT, THAT'S CORRECT.

ROBBERY AND OTHER ATTEMPTED MURDER AS VIOLENT FELONIES.

YES. BASICALLY, WHAT THE STATE DID IN CLOSING IS IT BASICALLY WENT DOWN THE FOUR AGGRAVATING CIRCUMSTANCES THAT IT CONTENDED THAT IT HAD PROVED, AND LISTED THE THINGS THAT IT HAD PRESENTED, INCLUDING THIS INDECENT ASSAULT ON THE CHILD OF 14.

WHEN DID THAT HAPPEN? WHEN WAS THAT CONVICTION, IN RELATIONSHIP TO THIS CRIME?

THE MASSACHUSETTS CONVICTION WAS IN 1985. THIS CRIME OCCURRED IN 1990.

AND WHAT ARGUMENT DID THE STATE MAKE, CONCERNING THE FACT THAT THIS WAS, AND THE JUDGE IN HIS ORDER DENYING RELIEF, REFERS TO THIS RECIDIVISM CONCEPT, AND THE FACT THAT THIS WAS YOU KNOW, A CHILD? WHAT WAS DONE IN CLOSING ARGUMENT CONCERNING THAT?

WELL, THE STATE'S CLOSING ARGUMENT, THEY ARGUED BOTH OF THOSE THINGS. THEY ARGUED ABOUT THE CONTEMPORANEOUS CONVICTIONS, AND THEY ARGUED THE 14-YEAR-OLD ASSAULT AND SEXUAL BATTERY CASE. THEY ARGUED BOTH OF THOSE THINGS.

I AM JUST TRYING TO FIND AND I GUESS WE CAN LOOK AT THE PARTICULAR CLOSING ARGUMENT, THE IDEA OF SOMEBODY ASSAULTING A 14-YEAR-OLD CHILD IS SOMEWHAT INFLAMMATORY, NOT THAT THIS MURDER ISN'T ON ITS OWN, BUT IN TRYING TO SAY THIS IS A GREAT GUY BUT YOU KNOW, THAT DAY, AND EVEN WITH HIS PRIOR ROBBERY, HIS SUBSEQUENT PRIOR ROBBERY, BUT IN THE TWO WEEKS BEFORE THINGS SNAPPED WITH HIM, SO DID THEY USE THE FACT THAT IT HAD OCCURRED FIVE YEARS BEFORE AND THIS SHOWS THIS IS A, ANYTHING IN CLOSING ARGUMENT ABOUT THAT?

WELL, YES. AS A MATTER OF FACT THAT THEY WERE MAKING THE ARGUMENT BASICALLY, THAT THIS SHOWED THAT MR. ARMSTRONG HAD A PRIOR CRIMINAL HISTORY, THAT HE HAD COMMITTED CRIMES IN THE PAST, AND THEY WERE USING THAT TO SHOW THAT THIS WASN'T JUST AN ISOLATED INCIDENT, WHICH IS WHAT THE DEFENSE ATTORNEY HAD ARGUED IN CLOSING IN THE GUILT PHASE THAT, THIS WAS AN ABERRANT INCIDENT. THE STATE WAS ARGUING THAT IT WAS NOT, BECAUSE OF THIS 1985 ASSAULT.

HOW DO YOU --

LET ME ASK YOU, GO AHEAD.

HOW WOULD THIS NOW PLAY OUT WITH THE NEW ROBBERY THAT WAS COMMITTED, I BELIEVE, A FEW DAYS BEFORE THIS MURDER, BUT WAS ACTUALLY THE CONVICTION ACTUALLY OCCURRED AFTER THE, THIS CASE? SO HOW WOULD THAT NOW PLAY OUT? HOW ARE WE TO CONSIDER THE FACT THAT WE WOULD HAVE THIS NEW ROBBERY, AND THE STATE COULD MAKE A SIMILAR KIND OF ARGUMENT, SAYING THAT THIS WASN'T SOMETHING THAT WAS JUST AN ISOLATED INCIDENT. LOOK. HE DID THIS ROBBERY, YOU KNOW, BEFORE HE EVEN COMMITED THIS MURDER!

WELL, I THINK THAT, UNDER THE CURRENT CASE LAW, WE HAVE TO TAKE THE FACTS AS THEY WERE PRESENTED AT THIS CASE, AT THIS PENALTY PHASE, AND WHAT HAPPENED PRIOR TO THAT TIME AND WHAT WAS IN EXISTENCE AT THAT TIME. AND WE HAVE TO EVALUATE THAT, AND IN FACT, UNDER CHAPMAN, THE BURDEN IS ON THE STATE TO SHOW THAT THIS UNCONSTITUTIONAL AGGRAVATOR HAD NO EFFECT WHATSOEVER, ON THE JURY'S DECISION.

LET ME ASK YOU, IT IS CORRECT, THAT THIS COURT HAS HELD A JOHNSON ERROR CAN BE HARMLESS, THAT CORRECT? OWEN IN THIS COURT HELD THAT.

THAT'S CORRECT.

NOW, OWEN WAS A DIRECT APPEAL CASE, CORRECT?

CORRECT.

THIS IS A POSTCONVICTION CASE.

THAT'S CORRECT.

NOW, WHY ISN'T IT THE STANDARD THAT, TO BE USED HERE, NEWLY-DISCOVERED EVIDENCE STANDARD, RATHER THAN HARMLESS ERROR? HARMLESS ERROR IS, REALLY, A DIRECT APPEAL CONCEPT, IT SEEMS TO ME, RATHER THAN A POSTCONVICTION CONCEPT. IS THAT NOT RIGHT?

WELL, I RESPECTFULLY THINK NOT. WHEN WE ARE DEALING WITH AN UNCONSTITUTIONAL AGGRAVATING CIRCUMSTANCE, I DON'T THINK IT MATTERS WHETHER IN DIRECT APPEAL OR POSTCONVICTION, YOU STILL HAVE TO REVIEW THAT AS TO THE CONSTITUTIONALITY OF THAT AGGRAVATOR, WHETHER THE JURY CONSIDERED IT, WHETHER THERE WAS OTHER MITIGATION IN THE RECORD, AND THAT IS KIND OF THE ANALYSIS, IS THIS COURT HAS ALWAYS DONE IN A JOHNSON V MISSISSIPPI TYPE OF SITUATION.

ARE YOU, OKAY, SO LET ME GO BACK, BECAUSE I KNOW THAT WE HAD THE CASE OF DUES, WHICH HAS COME BACK TO US, AND I KNOW THAT THIS INVOLVED A PRIOR VIOLENT FELONY. WHAT WAS THE ANALYSIS OF THE ELEVENTH CIRCUIT, WHEN THEY REVERSED IN THE DEWEST CASE, BECAUSE THAT INVOLVED THE SETTING ASIDE AFTER CONVICTION.

CORRECT.

BECAUSE I AM CONCERNED, TOO, WITH WHAT JUSTICE WELLS SAID, WHICH IS WHY WOULD THIS BE A HARMLESS ERROR AS OPPOSED TO A NEWLY-DISCOVERED EVIDENCE, WHICH IS A HARDER BURDEN FOR THE DEFENDANT.

WELL, I THINK, IN DWEST, THEY USED THE BREC IT HT ANALYSIS -- THE BRECHT ANALYSIS, AS FAR AS THEIR HARMLESS-ERROR ANALYSIS, BUT THEY ALSO VIEWED THAT CASE IN THE CONTEXT OF WHAT HAD OCCURRED TO THAT JURAT THAT TIME AND THAT IT WAS A CONSTITUTIONAL VIOLATION. I THINK AS A CONSTITUTIONAL VIOLATION, THEY KNEW THAT THEY HAD TO ADDRESS IT UNDER BRECKT, ASSETS A STRUCTURAL ERROR OR A TRIAL ERROR, AND THAT IT WASN'T A NEWLY-DISCOVERED EVIDENCE TYPE OF THING, BECAUSE IT WAS INTRODUCED AT THE TIME OF TRIAL.

WELL, THE ELEVENTH CIRCUIT, ALSO, HAD BEFORE IT A JOHNSON-ERA CASE IN SPIVEY VERSUS HESS. ARE YOU FAMILIAR WITH THAT CASE?

I AM NOT, YOUR HONOR.

IN THAT CASE, THEY ALSO HELD THAT IT WAS A BRECHT STANDARD, AND THEY WERE DOING IT BECAUSE THEY WERE DEALING WITH THEIR HABEAS JURISDICTION.

CORRECT. CORRECT.

BUT IN SPIVEY, WHAT THEY DEMPLED WAS -- WHAT THEY DETERMINED WAS THAT, EVEN THOUGH THE, THERE WAS ERROR IN THE FACT OF THE CONVICTION, SINCE THEY PUT ON THE EVIDENCE OF THE CONDUCT, THAT THE CONDUCT IN THAT SITUATION WAS ABLE TO BE CONSIDERED BY THE JURY, AND THEREFORE IT WAS HARMLESS ERROR. WHY DOESN'T THAT APPLY HERE, THAT ANALYSIS OF THE ELEVENTH CIRCUIT?

WELL, I THINK THE BRECHT ANALYSIS REALLY APPLIES IN FEDERAL COURT, WHERE THEY ARE IN A SIGNIFICANTLY DIFFERENT POSTURE THAN WE ARE HERE. IN STATE COURT, THIS COURT HAS ALWAYS USED THE CHAPMAN DeJULIO STANDARD, IN DOING A HARMLESS-ERROR ANALYSIS, AND HAS ALWAYS DONE IT ON A CASE-BY-CASE BASIS, BECAUSE EACH JURY HAS CONSIDERED DIFFERENT FACTORS, JUST LIKE THIS JURY DID, TOO. THIS JURY WAS PRESENTED WITH EVIDENCE OF THE VICTIM OF THIS PRIOR CRIME, AND THEY WERE SUBJECTED TO HEARING THE DETAILS OF THAT CRIME, WHICH WERE VERY INFLAMMATORY.

THIS WAS, SO IT WAS A 1985 CONVICTION. WHEN WAS THE CONVICTION SOUGHT TO BE SET ASIDE?

WELL, THE, AS SOON AS THE CASE BECAME, I BELIEVE, A POSTCONVICTION CASE, THEN STEPS WERE TAKEN TO CHALLENGE THAT.

WHAT WAS IT CHALLENGED ON THE BASIS OF?

THE CONSTITUTIONALITY, BASICALLY, OF THE, IF YOU WILL, KIND OF A RIGHTS ADVISEMENT OF WHAT MR. ARMSTRONG WAS ENTITLED TO, AS FAR AS ENTERING A GUILTY PLEA AND THE OTHER OPTIONS HE HAD UNDER MASSACHUSETTS LAW.

SO IT WAS SOMETHING THAT COULD HAVE BEEN DONE AT ANY TIME.

SURE. SURE.

I GUESS I AM TROUBLED BY THAT. I AM TROUBLE BY THE IDEA THAT WE DON'T, YOU KNOW, YOU ARE SAYING, WELL, WE HAVE GOT IT NOW. USE A HARMLESS-ERROR ANALYSIS, AND WE ARE NOW, IN 2003, FOR A 1990 CRIME, AND I DON'T UNDERSTAND HOW THE FACT THAT AT SOME POINT 20 YEARS LATER, SOMEONE TRIES CHALLENGE AN UNDERLYING FELONY, SHOULD ALLOW US TO GO AS IF WE WERE ON DIRECT APPEAL IN 1990.

WELL, IN JOHNSON V MISSISSIPPI, WHICH IS A SEMINOLE CASE, THERE WAS A 13, I BELIEVE IT WAS 13-YEAR TIME PERIOD, BEFORE A CHALLENGE WAS MADE TO THAT PARTICULAR AGGRAVATING FACTOR. AND IN THIS CASE, MR. ARMSTRONG'S CASE WAS NOT IN A PROCEDURAL POSTURE WHERE HE HAD AN ATTORNEY WHO WAS AVAILABLE TO DO THAT. AND NO COURT, AS TO MY KNOWLEDGE, HAS EVER TREATED A CONSTITUTIONAL VIOLATION AS BEING NEWLY-DISCOVERED EVIDENCE, BECAUSE THE STATE USED THAT AGGRAVATOR IN PRESENTING ITS CASE TO THE JURY. THE JURY USED THAT, IN THEIR SENTENCING CALCULUS.

WHEN YOU SAY IT IS A CONSTITUTIONAL VIOLATION, IT WAS BECAUSE THIS PRIOR CONVICTION WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

CORRECT.

OR BECAUSE, SO THE CIRCUMSTANCES OF WHY THE CONVICTION IS SET ASIDE FACTORS INTO HOW YOU ANALYZE THE CASE?

WELL, I THINK IT NECESSARILY DOES. BECAUSE IT ALL RUNS INTO THE FACT THAT IT IS A CONSTITUTIONAL VIOLATION, BECAUSE THE AGGRAVATOR IS A PART OF WHAT THE JURY CONSIDERS, AND THAT IS THE REAL PROBLEM, AND THE LOWER COURT JUDGE IN THIS CASE CERTAINLY UNDERSTOOD THAT. HAD HE LOOKED AT JUST EVIDENCE THAT WAS BEFORE HIM AS HE IS DICTATED TO UNDER JOHNSON AND UNDER THE SERIES OF CASES FROM THIS COURT, THAT HE WOULD HAVE TO GRANT MR. ARMSTRONG RELIEF. IT WAS ONLY WHEN HE CONSIDERED THE STATE, AT THE STATE'S URGING, A CONVICTION THAT HAD BEEN RENDERED AFTER THE DEATH CASE TRIAL, THAT HE SAID IT IS HARMLESS.

ALL RIGHT. WELL, IF THAT WAS PROPERLY CONSIDERED, BECAUSE YOU KNOW, THEN IS IT STILL YOUR POSITION THAT IT IS NOT HARMLESS BEYOND A REASONABLE DOUBT? BASED ON YOU KNOW, WHAT, OR DO YOU AGREE THAT, AT THAT POINT WITH THAT PRIOR ROBBERY IN THERE, THAT IT IS, WOULDN'T, IT IS NOT --

NO. WELL, MY POSITION HAD ALWAYS BEEN IN A LOWER COURT, THAT WHAT HAPPENED AFTERWARDS WAS COMPLETELY IRRELEVANT.

RIGHT. BUT --

HOWEVER, IF WE WENT THERE, I THINK YOU WOULD HAVE TO EVALUATE NOT ONLY THIS NEW CONVENIENCE STORE ARMED ROBBERY, WHICH, IF YOU LOOK AT THE RECORD SUBMITTED BY THE STATE, YOU WILL NOTICE THAT WILLIAMS RULE EVIDENCE WAS USED IN THAT CASE, OF THIS CHURCH'S FRIED CHICKEN ROBBERY, SO SEVEN OF THE 15 WITNESSES THAT WERE PRESENTED IN THAT ARMED ROBBERY CASE ACTUALLY WERE WITNESSES FROM THE CHURCH'S FRIED CHICKEN CASE.

BUT, HOWEVER, IT IS A CONVICTION, CORRECT?

IT IS A CONVICTION, YES, JUDGE.

AND ON THE RETRIAL, IT WOULD BE ABLE TO BE ADMITTED, CORRECT?

WELL, AS I ARGUED IN MY BRIEF, MY ARGUMENT WOULD BE THAT, NO, IT SHOULD NOT BE ADMITTED. BY VIRTUE OF THE FACT THAT THIS CHURCH'S FRIED CHICKEN ROBBERY WAS SO HAD CLOSELY INTERTWINED WITH THE ROBBERY, AND IT IS FOUND SUBSEQUENTLY BY THIS COURT THAT, A NEW SENTENCING PROCEEDING NEEDS TO TAKE PLACE, THEN THAT SHOULD NOT BE CONSIDERED. ALSO IT SHOULD NOT BE CONSIDERED, BECAUSE THIS CONVICTION OCCURRED AFTER THE CONVICTION FOR THE DEATH CASE. AND THAT WOULD HAVE BEEN MY ARGUMENT. PLUS, IN GETTING BACK TO --

WE HAVE ANSWERED WHETHER, ABOUT CONVICTIONS THAT OCCUR AFTERWARDS, BEFORE RETRIAL, CORRECT?

I AM SAYING THAT IS THE ARGUMENT I WOULD MAKE, IN ORDER TO KEEP THAT OUT.

BUT IF THIS STANDARD WAS, RATHER THAN HARMLESS ERROR STANDARD, A NEWLY-DISCOVERED EVIDENCE STANDARD, AND THAT THE PREJUDICE PRONG WAS WHETHER IT WOULD, WHETHER THERE IS A PROBABILITY THAT THERE WOULD BE A DIFFERENT RESULT, THEN THE ANSWER TO THAT QUESTION IS THAT THAT ROBBERY WOULD HAVE A MATERIAL VALUE, IN MAKING THAT DETERMINATION, WOULD IT NOT?

IF I AM UNDERSTANDING YOUR QUESTION CORRECTLY, NO, IT WOULDN'T, BECAUSE EVEN UNDER NEWLY-DISCOVERED EVIDENCE STANDARD, IF THAT IS WHAT WE WERE USING, YOU WOULD HAVE TO LOOK AT WHAT OCCURRED AT THE TIME THAT HE WAS ON TRIAL. YOU WOULD HAVE TO LOOK AT SOLELY THOSE FACTS. IF YOU WENT FURTHER, ASSURE SUGGESTING, TO CONSIDER THE SUBSEQUENT CONVENIENCE STORE ROBBERY, THEN YOU ALSO HAVE TO GO FURTHER AND CONSIDER THIS WEALTH OF MITIGATION THAT WAS PRESENTED AT THE EVIDENTIARY HEARING THAT WOULD BE BROUGHT FORWARD AT A NEW SENTENCING, AND I THINK BY ALL COUNTS, A FAIR ASSESSMENT OF THE MITIGATION THAT WAS DISCOVERED AND PRESENTED AT THE EVIDENTIARY HEARING, WAS MOUNT THIS NEWS, COMPARED -- WAS MOUNTAINOUS, COMPARED TO WHAT WAS PRESENTED AT TRIAL, SO IF YOU LOOK AT IT IN A VACUUM.

EVEN IF WE DON'T CONSIDER THE SUBSEQUENT CONVENIENCE FACTOR, CAN WE CONSIDER THE FACT THAT THERE WAS AN ATTEMPTED MURDER AND ROBBERY?

YES.

EVEN IF WE STICK TO WHAT HAPPENED AT THE TRIAL, THERE ARE OTHER PRIOR VIOLENT FELONIES THAT COULD BE FOUND.

SURE, AND THE JURY CONSIDERED THOSE CONTEMPORANEOUS FELONIES. THE PROBLEM IS WE DON'T KNOW WHAT WEIGHT THE JURY GAVE THAT TESTIMONY, BECAUSE THE ONLY TWO WITNESSES THAT THE STATE PRESENTED AT PENALTY PHASE WERE FROM THIS MASSACHUSETTS CONVICTION THAT HAS SUBSEQUENTLY BEEN OVERTURNED.

CHIEF JUSTICE: THE MARSHAL HAS REMINDED YOU THAT YOU ARE IN YOUR REBUTTAL TIME.

OKAY. I WILL RESERVE THE REST OF MY TIME FOR REBUTTAL. THANK YOU.

CHIEF JUSTICE: GOOD MORNING.

GOOD MORNING. MAY IT PLEASE THE STATE. EXCUSE ME. MAY IT PLEASE THE COURT. CELIA TERENZIO, ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE STATE. I WOULD LIKE TO START OUT WITH THE PROCEDURAL BAR ARGUMENT THAT WE HAD RAISED BELOW, IN WHICH THE TRIAL COURT REJECTED, BASED ON THIS COURT'S OPINION IN DWEST, BUT THE STATE STILL MAINTAINS THAT THIS JOHNSON VERSUS MISSISSIPPI CLAIM SHOULD HAVE BEEN FOUND TO HAVE BEEN PROCEDURALLY BARRED.

BASED ON WHAT?

BASED ON THE UNIQUE FACTS OF THIS CASE, JUSTICE PARIENTE. MR. MALAVENDA, THE TRIAL LAWYER, WENT UP TO MASSACHUSETTS, TO IN FACT, INVESTIGATE THE PRIOR INDECENT ASSAULT, KNOWING THAT THE STATE WAS GOING TO USE IT AT THE PENALTY PHASE. IN FACT, HE TALKED TO JONATHAN MILLER, WHO WAS LANCELOT ARMSTRONG'S ATTORNEY, REPRESENTED HIM AT THE, ON THE GUILTY PLEA, BROUGHT HIM DOWN HERE. HE DID AN AFFIDAVIT AND TOLD HIM HOW TO CROSS-EXAMINATION THIS, THE WITNESS. HE, OF COURSE, AT THE SAME TIME, HE COULD HAVE TOLD HIM, IF HE THOUGHT THAT THERE WAS SOMETHING WRONG WITH THAT GUILTY PLEA, WHY DIDN'T THAT COME OUT THEN?

SO WOULD THAT BE AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM THEN?

THAT IS NOT RAISED HERE. AND IF IT WERE, OUR ARGUMENT WOULD BE THAT THEY ARE TRYING TO CIRCUMVENT THE PROCEDURAL BAR RULE THAT ANY CHALLENGE TO THAT 1985 CONVICTION, SHOULD HAVE BEEN MADE PRIOR TO THIS TRIAL, AT THE TIME THAT THEY KNEW THAT THE INDECENT ASSAULT WAS GOING TO BE IMPORTANT.

BUT WOULDN'T THAT BE, I MEAN, I CAN APPRECIATE THE STATE'S ARGUMENT, BUT MS. BACHUS POINTS OUT THAT IN JONZ JOHNSON VERSUS -- IN JOHNSON VERSUS MISSISSIPPI, THAT WAS 13 YEARS LATER, I FORGET WHAT CASE IT WAS BUT UNDER A WARRANT PERIOD, THERE WAS SOME LAWYER THAT WAS GOING AND TRYING TO GET CONVICTIONS OVERTURNED IN OTHER STATES THAT, THIS SEEMS TO HAVE BEEN SOMETHING THAT IS RECOGNIZED AS THE EXCEPTION TO THE PROCEDURAL BAR. DO YOU AGREE THAT THAT APPEARS TO BE THE CASE? IN OTHER WORDS EVERYONE KNOWS HIS PRIOR CONVICTIONS AND IF THE RULE WERE AND ONCE YOU KNOW IT, YOU BETTER DO WHATEVER YOU CAN TO SET IT ASIDE AT THAT TIME, WHAT HAPPENS TO ALL THESE CASES WHERE IT HAS BEEN CONSIDERED, YOU KNOW, DECADES LATER OR SEVERAL YEARS LATER?

WELL, ACTUALLY I WOULD RELY ON TWO CASES, ONE FROM THIS COURT, WHERE THE DEFENDANT TRIED TO VACATE A PLEA THAT WAS OVER 30 YEARS OLD, BASED ON HIS MENTAL CAPACITY, AND THIS COURT FOUND THAT TO BE PROCEDURALLY BARRED, BECAUSE HE HAD THE WHEREWITHAL TO KNOW, BACK 30 YEARS AGO, WHETHER OR NOT THAT PLEA SHOULD HAVE BEEN VACATED, BUT MORE IMPORTANTLY, THE UNITED STATES SUPREME COURT, IN 2001, CAME OUT WITH TWO CASES, ONE THAT WE USED IN OUR BRIEF, AND THAT IS DANIELS VERSUS UNITED STATES. NOW, IT WAS NOT A JOHNSON VERSUS MISSISSIPPI CLAIM, BECAUSE IT WAS NOT A CAPITAL CASE. HOWEVER, IN FEDERAL COURT, THE GOVERNMENT WANTED TO USE A PRIOR CONVICTION IN STATE COURT, TO ENHANCE HIS FEDERAL SENTENCE, AND THE DEFENDANT TRIED TO GO BACK AND HAVE THAT STATE COURT JUDGMENT VACATED, AND THE UNITED STATES SUPREME COURT SAYS NO CAN DO, AND AS A MATTER OF FACT, THEY SAY THESE VEHICLES FOR REVIEW, HOWEVER, ARE NOT AVAILABLE INDEFINITELY AND WITHOUT LIMITATIONS.

SO UNDER THIS ARGUMENT, LET ME SEE IF I AM QUITE FOLLOWING YOU.

OKAY.

THE DEFENSE ATTORNEY, YOU SAY, WENT TO MASSACHUSETTS AND DID SOME RESEARCH ABOUT THIS PRIOR VIOLENT FELONY. ARE YOU, IS YOUR ARGUMENT, THEN, THAT THIS, THE DEFENSE ATTORNEY IN THIS CASE, HAD AN OBLIGATION AT THAT POINT, TO TRY TO, IF THERE WAS SOMETHING WRONG WITH THIS, TO DO SOME KIND OF POSTCONVICTION AT THAT POINT, ON THAT MASSACHUSETTS CASE?

YES. ABSOLUTELY. KNOWING AT THE TIME, THAT IS WHEN IT BECAME, THAT IS WHEN HE BECAME AWARE THAT THIS PRIOR INDECENT ASSAULT WAS GOING TO COME BACK TO HAUNT HIM AT, AND SO IN PREPARATION FOR THE PENALTY PHASE, OR IF NOT, DON'T EVEN HAVE TO TAKE IT THAT FAR. RATHER THAN HAVING TO GO BACK TO MASSACHUSETTS, HE COULD HAVE, ON THE CROSS-EXAMINATION OF THIS WITNESS OR PUT THE DEFENSE ATTORNEY ON THE STAND.

BUT THERE ARE VERY FEW CONVICTIONS THAT ARE GOING TO BE ABLE TO EVEN BE SET ASIDE MORE THAN TWO YEARS AFTER THE FACT. AREN'T WE REALLY, I MEAN I GUESS, IN FACT THERE ARE CASES THAT HAS BEEN HAPPENING, BUT MOST OF THE TIME, YOU KNOW, ONCE SOMETHING IS FINAL OR WITHIN TWO YEARS THAT, IS THE END, ANYWAY, SO IT HAS GOT TO BE SOMETHING OF A UNIQUE CIRCUMSTANCE, WHEN A CONVICTION IS SUCH THAT IT IS VACATED, IN THIS CASE THIS WAS 20, 30 YEARS AFTER.

ACTUALLY IT WAS '85 AND I THINK IT WAS 1988 OR '89, BUT ACTUALLY I THINK THAT UNDERSCORES OUR POINT APPARENTLY IN THE STATE OF MASSACHUSETTS, MAYBE THERE IS NO TIME BAR, AND AS A MATTER OF FACT IF YOU LOOK AT THE PLEADINGS IN THIS RECORD, IT IS NOT THAT THEY WERE ALLOWED TO DO IT BECAUSE THERE WAS A CHANGE OF LAW IN TERMS OF WHAT IS REQUIRED FOR A GUILTY PLEA OR NEWLY-DISCOVERED EVIDENCE. THERE IS, I MEAN THE STATE TRIED TO ARGUE LACHES, APPARENTLY IN MASSACHUSETTS, AND NOWHERE IN THE OPINION DOES IT DOES DISCUSS WHY THEY ARE ALLOWED TO COME BACK IN 1998, 13 YEARS LATER, TO DO IT.

WHAT CASES OF THIS COURT HAVE WE HAD, WHERE THERE IS AN ACTUAL CONVICTION THAT HAS BEEN RELIED ON IN A DEATH CASE, THAT HAS BEEN SET ASIDE, IN WHICH WE HAVE HELD THERE TO BE A PROCEDURAL BAR? NOW, I KNOW THAT, IN CASES IN WHICH THEY HAVE NOT ACTUALLY GOTTEN IT SET ASIDE BUT THEY SAY THEY ARE GOING TO, BUNDY AND POINANO AND THOSE CASES, BUT WHICH CASES HAVE WE ACTUALLY HELD THERE TO BE A PROCEDURAL BAR?

YOU HAVEN'T, YOUR HONOR. THE ONLY CASE TO RELY ON IS IN UTSE, APPARENTLY THERE HE HAD NOT GONE BACK TO NEBRASKA, BUT THIS COURT ALSO SAID, THOUGH, THAT HIS MENTAL CAPACITY IN 1958 WAS SOMETHING THAT HE COULD HAVE DONE SOMETHING ABOUT WITHIN TWO YEARS OF THEN!

WHAT GIVES ME A REAL DISCOMFORT ABOUT THE PROCEDURAL BAR, IS THE FACT THAT, IN JOHNSON, THAT THEY CONSIDERED WHETHER THE STATE OF MISSISSIPPI HAD A PROCEDURAL BAR, AND THEY SAID THAT WE FIND NO EVIDENCE THAT THE PROCEDURAL BAR RELIED ON BY THE MISSISSIPPI SUPREME COURT HAS BEEN CONSISTENTLY OR REGULARLY APPLIED. AND IT SEEMS TO ME THAT WE HAVE, WOULD HAVE A HARD TIME DEMONSTRATING THAT WE HAVE REGULARLY AND CONSISTENTLY APPLIED A PROCEDURAL BAR.

I GUESS THE ANSWER TO THAT SIMPLY WOULD BE THAT THIS WOULD BE A GOOD PLACE TO START, BUT BESIDES THAT I THINK IN 2001, WHEN THE UNITED STATES SUPREME COURT CAME OUT WITH THOSE TWO CASES, DANIELS AND LACKAWANNA VERSUS PENNSYLVANIA, WHERE I THINK IT GAVE THE STATES, IF YOU WILL, PERMISSION TO APPLY A BAR TO THAT AND THAT MAYBE JOHNSON VERSUS MISSISSIPPI SHOULD NOT BE READ TO SAY THAT THERE WILL NEVER BE A BAR IN THOSE KINDS OF CASES.

YOU DON'T SEE THAT IN JOHNSON -- YOU ARE NOT SAYING THAT THEY RECEDED FROM JOHNSON VERSUS MISSISSIPPI, ARE YOU?

NO, BUT MAYBE IN TERMS OF THAT IT WAS TOO EXPANSIVE, SO THAT THERE COULD NEVER, EVER BE A BAR TO THIS CLAIM.

YOU STARTED OUT BY SAYING YOU THOUGHT THIS WAS UNIQUE AND NOW YOU ARE SAYING THAT THERE SHOULD BE PROCEDURAL BARS AT ANY TIME, BUT THE UNIQUE NEST FACT THAT THE DEFENSE ATTORNEY WAS UP THERE LOOKING AT THE CIRCUMSTANCES OF THE PRIOR VIOLENT FELONY, WHICH WE WOULD HOPE ANY GOOD DEFENSE ATTORNEY WOULD DO, IN ORDER TO PREPARE HIMSELF OR HERSELF FOR THE PENALTY PHASE?

YES, BUT IN TERMS OF WHAT MR. MALAVENDA DID IN THIS CASE, HE TALKED TO THE DEFENSE ATTORNEY, JOHN MILLER, AND THE FACT THAT THIS DIDN'T COME OUT UNTIL 13 YEARS LATER, I SEE YOU ARE GOING TO BE SAYING THAT THIS IS, THEN, THE BURDEN OF THE DEFENSE ATTORNEY, BUT COULDN'T THIS JUST REALLY BE A SANDBAGGING AND A GOTCHA AND THAT 13 YEARS LATER, NOW WHEN THEY KNOW THAT TIME IS RUNNING OUT ON HIM, LET'S SEE WHAT WE CAN DO NOW TO GO BACK AND INTERESTINGLY, IN MASSACHUSETTS, APPARENTLY THEY DON'T HAVE THAT REQUIREMENT, SO THE OPPOSITE SIDE OF THIS COIN IS THAT, WHAT, THE STATE, EXCUSE ME, THIS STATE SHOULD BE VERY CAREFUL, IF THEY TRY TO RELY ON WHAT THEY THINK IS THEN A FIVE-YEAR-OLD CONVICTION FROM THE STATE OF MASSACHUSETTS, BECAUSE THEN NOW, 13 YEARS LATER, THEY COULD COME BACK AND HAVE IT VACATED ON A TECHNICALITY?

BUT YOU KNOW, I MEAN, IT IS NOT AS IF THERE HAVEN'T BEEN A LEGION OF CASES THAT HAVE AT LEAST CONSIDERED THE ISSUE. NOW, LET ME, LET'S ADDRESS THE --

OKAY.

WOULD YOU AGREE THAT IT IS A HARMLESS-ERROR ANALYSIS THAT THIS COURT, AT LEAST, HAS APPLIED IN SIMILAR CIRCUMSTANCES?

ABSOLUTELY.

ALL RIGHT. WHAT IS, LET'S, FORGET THE 13, DAY-BEFORE CONVICTION. LET'S JUST GO WITH THE STATUS OF THE RECORD. GIVE ME THE STATE'S ARGUMENT AS TO THE BEST ARGUMENT AS TO WHY THIS CAN BE CONSIDERED HARMLESS BEYOND A REASONABLE DOUBT. AND YOU KNOW, I AM PARTICULARLY CONCERNED ABOUT THIS BEING A DIFFERENT TYPE OF CONVICTION THAT HAS SEXUAL CONNOTATIONS THAT THE STATE USED TWO WITNESSES. THE ONLY TWO WITNESSES WERE THE WITNESSES OF THIS 1985 CONVICTION, AND THAT IT IS A SEXUAL ASSAULT, WHICH IS SOMEWHAT INFLAMMATORY.

WELL, NUMBER ONE, THE VICTIM'S TESTIMONY WAS TEN PAGES LONG. SO IT DID NOT TAKE UP A LOT OF THE EVIDENCE PRESENTED BY THE STATE. THE REASON WHY THE STATE DID NOT PRESENT ANYMORE LIVE WITNESSES AS TO THE PRIOR VIOLENT FELONIES, BECAUSE THOSE TWO PEOPLE, OFFICER SOLLESTIO AND KAY ALLEN, THE VICTIM OF THE ROBBERY, ALREADY TESTIFIED AT THE GUILT PHASE, SO THERE WAS NO REASON TO BRING THEM BACK IN AT THE PENALTY PHASE, TO SAY THE EXACT SAME THING A SECOND TIME.

IN CLOSING ARGUMENT, OR IN ARGUMENT IN THE PENALTY PHASE, DID THE STATE EMPHASIZE THOSE FELONIES AS WELL AS THE PRIOR CONVICTION?

NO, SIR. AS A MATTER OF FACT, RECOUNTED IN OUR BRIEF, THE RECORD CITES ARE 1932-TO-1933, THE STATE ATTORNEY WENT THROUGH THE TWO PRIOR VIOLENT FELONIES OF THE ATTEMPTED ROBBERY, EXCUSE ME THE ROBBERY AND THE ATTEMPTED MURDER, AND THEN WHEN HE GOT TO THE TESTIMONY, THE EVIDENCE OF THE INDECENT ASSAULT, HE GAVE IT ONE LINE. HE SAID THE THIRD ONE IS THE VIOLENT FELONY AGAINST ROSE FLINCH THAT HAPPENED BACK IN JANUARY 1985, AND THEN HE SAYS, YOU CAN TAKE ANY OR ALL OF THESE. THAT WAS THE ONLY REFERENCE TO THAT PRIOR VIOLENT FELONY. SO THERE, BY NO STRETCH OF THE IMAGINATION CAN YOU SAY THAT IT WAS UNDULY EMPHASIZED IN THIS CASE. THE TRIAL COURT BELOW WAS CONCERNED THAT THE TWO PRIOR VIOLENT FELONIES WERE CONTEMPORANEOUS AND THOUGHT THAT THIS COURT HAD NOT, BEFORE, UPHELD A CLAIM OF JOHNSON VERSUS MISSES I AM I, WHEN OTHER -- MISSISSIPPI, WHEN OTHER PRIORS WERE CONTEMPORANEOUS CONVICTION ANSWER THAT SIMPLY ISN'T TRUE, WHEN WE RECITEED TO OCHOCONE, WHEN THERE WAS ATTEMPTED MURDER. NOW IN THIS CASE WE HAVE A CONTEMPORANEOUS ATTEMPTED MURDER OF A POLICE OFFICER WHO BY THE GRACE OF GOD SHOULD HAVE DIED. HE WAS SHOT FIVE TIMES.

I ALWAYS LOOK, WHEN I LOOK AT DEATH PENALTY CASES, AT LEAST FOR THE MYSELF, AND I CAN'T SPEAK FOR THIS JURY THAT, IT ALWAYS IS DIFFERENT WHEN THERE ARE SEVERAL CRIMES THAT ARISE OUT OF THE INCIDENT IN QUESTION. 4 VERSUS A TRUE PRIOR VIOLENT FELONY BEING SOMETHING THAT HAS OCCURRED IN THE PAST AND THE DEFENDANT DIDN'T LEARN, QUOTE, HIS LESSON, AND THAT IS WHAT CONCERNS ME, ALTHOUGH IT MAY NOT HAVE BEEN EMPHASIZED, THAT, TO THE JURY, THAT I, FOR ME, WHAT I AM LOOKING AT THESE CASES, I KNOW IT HAS AN IMPACT ON ME BECAUSE I, ALTHOUGH, BECAUSE IT IS DIFFERENT. IT IS DIFFERENT IF SOMEBODY COMMITTED A MURDER FIVE YEARS BEFORE VERSUS A MURDER AND A ROBBERY TOGETHER.

RIGHT.

I JUST PSYCHOLOGICALLY SEE THAT AS, YOU KNOW, AS A DIFFERENT CIRCUMSTANCE, SO THAT IS MY CONCERN IS HOW DO WE KNOW WHAT, HOW THE JURY SAW IT?

WELL, SO WHAT YOU ARE SAYING IS IF YOU DISAGREE WITH WHAT HAPPENED IN OCHOCONE, BECAUSE THAT IS EXACTLY THE SITUATION THERE, THEN YOU CAN LOOK AT THAT OTHER PRIOR ROBBERY THAT OCCURRED 13 DAYS BEFORE. WE HAD THE SAME GUN, YOU HAD THE SAME CODEFENDANT. YOU HAD THE SAME TYPE OF ESTABLISHMENT THAT WAS ROBBED.

DO THEY KNOW ABOUT THAT THAT CASE, AT THE TIME OF THE FIRST TRIAL? THE 13-DAY --

WAS THE STATE AWARE OF THAT? YES.

SO THAT WASN'T INTRODUCED AT ALL?

BECAUSE THAT TRIAL OCCURRED A MONTH AFTER THE SENTENCING HERE.

BUT I HAVE HEARD THE STATE ARGUE, INEXTRICABLY INTERTWINE SOMETHING AS A STRING OF ROBBERIES AND IT IS SIMILAR, THE STATE DIDN'T TRY TO, SO THAT NO EVIDENCE 6 THAT WAS OFFERED? -- NO EVIDENCE OF THAT WAS OFFERED?

NO. EXACTLY. AND THAT CONVICTION HAPPENED. NO. IN TERMS, RIGHT, NO. THE STATE DID NOT ATTEMPT TO USE THAT AS WILLIAMS RULE OR AS INEXTRICABLY INTERTWINED, BUT FOR YOUR CONCERN, IN TERMS OF THE FACT THAT THE PRIORS IN THIS CASE HAPPENED TO BE CONTEMPORANEOUS, AGAIN, I THINK THIS COURT HAS AN OBLIGATION UNDER JONES, WHEN YOU ARE DOING YOUR ANALYSIS AND WHETHER OR NOT THIS SHOULD GO BACK, THAT YOU MUST CONSIDER THE OTHER PRIOR ROBBERIES, A AND THAT DOES MAKE HIM A RECIDIVIST THE ROBBER.

BUT THE PROBLEM IS, IF WE DO THAT, THEN DON'T WE HAVE TO DO WHAT MS. BACHUS SAYS, WHICH IS SEE WHAT OTHER MITIGATION IS PRESENTED AT A NEW SENTENCING HEARING LITTLE?

NO. BECAUSE THAT ISSUE IN THIS CASE ON THE INEFFECTIVE ASSISTANCE OF COUNSEL, MR. MALAVENDA SAID THAT HE WOULD NOT HAVE PRESENTED THE NEW EVIDENCE THAT THEY RAISED AT THE EVIDENTIARY HEARING, SO THERE IS NO WAY THAT EVIDENCE WOULD HAVE EVER COME OUT IN TERMS OF THE ORGANIC BRAIN DAMAGE, SO, NO, I DON'T, QUITE TO THE CONTRARY, I DON'T THINK THIS COURT CAN CONSIDER IT, UNLESS THIS COURT FINDS THAT THAT INEFFECTIVE CLAIM HAS MERIT, WHICH I DON'T THINK IT DOES.

I AM SAYING THAT, IF WE ARE GOING TO LOOK AND SAY HOW WILL THIS NEXT SENTENCING HEARING GO AND YOU ARE SAYING, WELL, IT WILL FOR SURE, THIS 13-DAY PRIOR ROBBERY WILL FOR SURE COME OUT, THE PROBLEM IS WE DON'T KNOW WHAT THE QUALITY OF THE MITIGATION WILL COME OUT.

SURE YOU DO. YOU ABSOLUTELY KNOW THAT, BASED ON THE FACT THAT IT HAS ALREADY BEEN TESTED AT THE EVIDENTIARY HEARING, AND THE TRIAL JUDGE WENT IN GREAT DETAIL AS TO WHY HE REJECTED MOST OF IT AS SIMPLY NOT CREDIBLE, IN TERMS OF THE EXPERT OPINIONS, AND HE, ALSO, FOUND THAT THE FACTUAL PREMISE OF THE MITIGATION WAS CUMULATIVE, SO THERE IS ABSOLUTELY NO SPECULATION ON THIS. ALL YOU HAVE TO DO IS READ THE RECORD!

WHAT IS THE STATE'S RESPONSE TO THE FACT THAT, EVEN THOUGH THERE MAY HAVE BEEN ONE LINE IN ARGUMENT TO THE JURY ABOUT THIS AGGRAVATOR, THAT THE, THIS COURT, IN ITS OPINION, HELD THAT THE, THAT WE FIND THAT THERE WAS A PROBLEM WITH THE SENTENCING ORDER, THAT IT WAS SOMEWHAT LESS THAN A MODEL OF CLARITY. WE BELIEVE HE PROPERLY CONSIDERED ALL NONSTATUTORY MITIGATING EVIDENCE, IN IMPOSING THE DEATH SENTENCE N ANY EVENT, HOWEVER, WE FIND THAT ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT, BECAUSE AS INDICATED ABOVE, THE THREE VALID AGGRAVATING CIRCUMSTANCES IN THIS CASE STRONGLY OUTWEIGH NEGLIGIBLE NONSTATUTORY MITIGATING EVIDENCE. NOW, IF WE STRIKE ONE OF THOSE AGGRAVATORS --

BUT YOU ARE NOT STRIKING IT. I AM NOT FOLLOWING YOU, JUSTICE WELLS.

WE ARE STRIKING IT, BECAUSE ONE OF THEM IS NO LONGER THERE!

WHICH ONE IS THAT?

WELL, THE, PART OF THE PRIOR VIOLENT FELONY.

BUT IT STILL IS THERE.

IS GONE. THERE IS ONE THERE. PART OF IT IS THERE.

YOU STILL HAVE TWO PRIOR VIOLENT FELONIES THAT SATISFY THAT AGGRAVATOR. ASIDE FROM THE OTHER ROBBERY WHICH WE THINK YOU CAN CONSIDER. SO --

THERE IS REALLY ONE, RIGHT?

THERE IS TWO.

BECAUSE THERE IS THE ATTEMPTED MURDER. RIGHT?

RIGHT.

AND THEN THERE IS THE ROBBERY. BUT THE COURT ALSO FOUND THAT ANOTHER AGGRAVATING CIRCUMSTANCE WAS COMMITTED DURING THE COURSE OF A ROBBERY, SO WOULDN'T THAT BE DOUBLING, IF WE USED --

NO. BECAUSE ONLY IF YOU CONSIDER THE OTHER ROBBERY, BUT THE ATTEMPTED MURDER OF OFFICER SOLLESTIO IS NOT A PREDICATE FELONY FOR THE FELONY MURDER AGGRAVATOR. I MEAN, THAT IS SEPARATE AND APART. WHICH MAKES SENSE IS THAT YOU ARE NOT GOING TO CHARGE SOMEBODY WITH FELONY MURDER FOR THE ATTEMPTED MURDER. I MEAN, THAT DOESN'T MAKE ANY SENSE, SO THERE IS ABSOLUTELY NO DOUBLING, WHEN YOU CONSIDER THE ATTEMPTED MURDER OF OFFICER SOLEESTY-, BECAUSE -- OF OFFICER SOLLESTIO, BECAUSE THAT WOULDN'T BE DOUBLING, BECAUSE THAT WOULDN'T BE PROPER, SO THERE ARE THREE STRONG VALID AGGRAVATING FACTORS TO CONSIDER, BUT WE DO THINK THAT THIS COURT CAN CONSIDER THE OTHER PRIOR ROBBERY AND, I THINK, ROGERS WAS CORRECTLY DISTINGUISH BY THE TRIAL COURT. IF THERE ARE NO FURTHER QUESTIONS, WE ASK THAT YOU AFFIRM THE TRIAL COURT'S DENIAL OF POST-CONVICTION RELIEF.

CHIEF JUSTICE: THANK YOU. MR. MARSHAL, HOW MUCH TIME FOR REBUTTAL? OKAY.

JUST TO ADDRESS THE LAST ISSUE THAT JUSTICE CANTERO, THE DIRECT APPEAL OPINION, THIS COURT ADDRESSED WHETHER THE DOUBLING HAD OCCURRED, WITH REGARD TO THE PRIOR VIOLENT FELONY AGGRAVATOR, AND DURING THE COURSE AFTER FELONY AGGRAVATOR. THE COURT SPECIFICALLY SAID IN ITS OPINION THAT, BECAUSE THEY HAD THIS MASSACHUSETTS CONVICTION, THAT IT WASN'T CONSIDERING THAT TO HAVE BEEN DOUBLED, BECAUSE THAT WAS AN ISSUE THAT WAS RAISED ON DIRECT APPEAL. IT DID --

WHAT ABOUT THE FACT THAT THEY ALSO HAVE THE ATTEMPTED MURDER?

WELL, MY ARGUMENT IS IT STILL IS PART OF THE SAME SET OF FACTS USED TO JUSTIFY BOTH AGGRAVATORS. THEY STILL ARE BOTH THE SAME, SAME FACTS USED FOR THAT AGGRAVATOR, AND THAT IS WHAT, THAT IS WHAT THIS COURT WAS SAYING IN ITS DIRECT APPEAL, THAT IT WAS EXAMINING IT UNDER THE ISSUE OF WHETHER THE SAME FACTS SUPPORTED BOTH OF THOSE AGGRAVATORS AND THAT ONLY ONE COULD BE USED UNDER THOSE CIRCUMSTANCES. THE ONLY REASON HE DIDN'T, THE COURT DIDN'T STRIKE ONE OF THOSE AGGRAVATORS WAS BECAUSE OF THE MASSACHUSETTS CONVICTION, AND IT SPECIFICALLY SAYS THAT IN THE OPINION, SO MY POSITION WOULD BE THAT THE SAME FACTS WERE STILL SUPPORTING BOTH OF THOSE AGGRAVATING FACTORS.

ISN'T THE ROBBERY AND ATTEMPTED MURDER TWO DIFFERENT FACTS?

THEY ARE TWO DIFFERENT FACTS, BUT THEY WERE BOTH USED TO SUPPORT BOTH OF THOSE AGGRAVATING CIRCUMSTANCES. SO THAT IS QLA I AM SAYING THEY WERE BOTH -- SO THAT IS WHY I AM SAYING THEY WERE BOTH SUPPORTING OF THOSE AGGRAVATED CIRCUMSTANCES, SO CONSIDERING THAT ON DIRECT APPEAL THIS COURT STRUCK THE AVOIDING ARREST AGGRAVATOR, TAKING IT DOWN TO THREE, HAD THE COURT AT THAT TIME, KNOWN THAT THE MASSACHUSETTS CONVICTION WAS NO LONGER GOOD, THEN IT WOULD HAVE STRUCK ANOTHER ONE, LEAVING US WITH TWO, THE SAME SITUATION AS IN THE SAMUEL RIVERA CASE, WHERE THERE WERE SIX AGGRAVATORS TO START WITH, AND BY THE TIME THEY GOT FINISHED STRIKING THE IMPROPERLY DOUBLED AGGRAVATORS --

YOU ARE STILL LEFT WITH THREE PRETTY SERIOUS AGGRAVATORS. ONE IS, EVEN IF YOU STRUCK ONE, ONE IS YOU KILLED A LAW ENFORCEMENT OFFICER IN THE PERFORMANCE OF HIS OFFICIAL DUTIES. YOU HAVE GOT NO MITIGATING CIRCUMSTANCES. WHY ISN'T THAT ENOUGH? AND HAVE THE COURT IN THIS CASE, FINDING THAT THERE IS NO CREDIBLE MIDGAITING CIRCUMSTANCES?

WELL, I THINK YOU HAVE TO LOOK AT, MORE DEEPLY AT THE DIRECT APPEAL OPINION, BECAUSE THIS COURT AS JUSTICE WELLS WAS SAYING, WAS QUESTIONING WHETHER THE COURT HAD PROPERLY, WHETHER THE TRIAL COURT HAD PROPERLY WEIGHED THE MITIGATING CIRCUMSTANCES. BECAUSE THERE WAS SOME MITIGATION PRESENTED THAT WAS UNREBUTTED. AND THE COURT WAS QUESTIONING WHETHER THE, AND IT WASN'T CLEAR FROM THE COURT'S ORDER, WHETHER OR NOT IT HAD ACTUALLY CONSIDERED THAT MITIGATION, AND ONE OF THE ISSUES ON APPEAL WAS THAT THE TRIAL JUDGE HAD NOT CONSIDERED THE MITIGATING CIRCUMSTANCES ADEQUATELY, AND IT WAS NOT REFLECTED IN HIS ORDER. AND ANOTHER THING TO CONSIDER, THERE WAS A 9-TO-3 JURY VOTE IN THIS CASE, SO THREE JURORS, DESPITE BEING INSTRUCTED ON AN INVALID AGGRAVATOR, THE LAW ENFORCEMENT AGGRAVATOR THAT WAS ULTIMATELY STRUCK, BESIDES BEING TOLD ABOUT THIS MASSACHUSETTS CONVICTION, AND ONE OF THE OTHER ISSUES ON DIRECT APPEAL WAS THAT THE LIMITING INSTRUCTION WAS NOT BEGIN TO THE JURY, WARNING THEM ABOUT DOUBLING AGGRAVATING CIRCUMSTANCES, SO THEY WEIGHED FOUR FULL AGGRAVATING CIRCUMSTANCES AND STILL THREE OF THE JURORS VOTED FOR LIFE. SO WHEN YOU GET TO THE ANALYSIS NOW, IN 2003, WITH ALL OF THE NEW THING THAT IS WE KNOW, YOU HAVE TO CONSIDER ALL OF THOSE THINGS TOGETHER. THE JURY VOTE, YOU HAVE TO CONSIDER WHAT THE STATE PRESENTED IN ITS CASE, AND I AM SUGGESTING NOW THAT THE STATE'S POSITION THAT THIS MASSACHUSETTS CONVICTION SUDDENLY ISN'T IMPORTANT IS CONTRARY TO WHAT THEY ARGUED DURING PENALTY PHASE, BECAUSE THEY CERTAINLY WENT TO THE EXPENSE TO BRING THIS PERSON DOWN HERE. THEY PREPARED HER. SHE DID TESTIFY FOR ABOUT TEN PAGES, BUT THOSE TEN PAGES WERE A WHOPPER! SHE WAS GOING INTO THE ACTUAL FACTS OF THE SEXUAL ASSAULT IN GRAPHIC DETAIL.

HOW OLD WAS SHE AT THE TIME OF THE ASSAULT?

14 YEARS OLD.

HOW OLD WAS MR. ARMSTRONG?

OH, BOY, HE WAS OLDER BUT I CAN'T TELL YOU, OFF THE TOP OF MY HEAD.

IT WASN'T LIKE HE WAS 18?

NO. NO. HE WAS OLDER.

AND WHAT WERE THE CIRCUMSTANCES OF THE ASSAULT? EVIDENTLY THIS GIRL WAS A FRIEND OF THE FAMILY AND SHE TESTIFIED ABOUT TWO SEPARATE SITUATIONS IN WHICH MR. ARMSTRONG HAD PUSHED HER DOWN AND HAD SEXUALLY ASSAULTED HER, AND IN ONE INSTANCE HAD DONE SO WHEN HIS, IN THE SAME HOUSE AS HIS PREGNANT WIFE WAS IN THE OTHER BEDROOM SLEEPING, SO SHE TOLD --

THERE WASN'T ANY EVIDENCE GIVEN OF ANY PENETRATION.

NO. SHE DID TESTIFY THAT HE PLACED HIS PENIS INSIDE ME. YES, SHE DID.

IS THAT RIGHT? OKAY.

CHIEF JUSTICE: ALL RIGHT. TIME HAS EXPIRED. WE ARE GOING TO HAVE TO TAKE THE REST OF IT ON THE BRIEFS. WE THANK BOTH OF YOU VERY MUCH. THE COURT AT THIS TIME, IS GOING TO TAKE ITS MORNING RECESS. WE WILL BE IN RECESS FOR ABOUT 15 MINUTES.

MARSHAL: PLEASE RISE./