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.

Kenneth E. Lott v. State of Florida


NEXT CASE ON THE COURT'S DOCKET IS LOTT VERSUS STATE. GOOD MORNING.

GOOD MORNING, YOUR HONOR. GOOD MORNING.

CHIEF JUSTICE: ALL RIGHT. IF YOU ARE READY, YOU MAY PROCEED.

MAY IT PLEASE THE COURT. MY NAME IS FRANK BANK ON WIDTHS. I AM APPEARING -- MY FRAME IS FRANK BANKOWITZ, AND THIS IS A APPEAL OF MR. LOTT'S SUMMARY MOTION FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS MOTION FOR POST-CONVICTION RELIEF, PURSUANT TO RULE 3.850. MR. LOTT ALLEGED THEY HIS MOTION THAT HIS TRIAL COUNSEL WAS INEFFECTIVE, FOR FAILING ON TO INVESTIGATE AND FIND AND CALL EXCULPATORY WITNESSES, IN PARTICULAR A POTENTIAL BY WITNESS, WHO PLAYSED MR. LOTT APPROXIMATELY 140 MILES FROM THE CRIME SCENE DURING A PERIOD IN WHICH THE CRIME OCCURRED. THE CRIME OCCURRED, ACCORDING TO THE MEDICAL EXAMINER'S RECORDS IN THIS MATTER, WITHIN A 26-HOUR PERIOD, AND HE COULD NOT BE ANYMORE SPECIFIC THAN THAT.

WAS THERE ANY ATTEMPT IN THIS MOTION FOR REHEARING PERIOD, TO LAY OUT MORE DEFINITIVELY, IN THIS MOTION, THE ALLEGATIONS THAT WOULD HAVE SAID THAT SOMETHING TO THE EFFECT THAT THIS PERSON WAS IN ST. AUGUSTINE, WAS SEEN IN ST. AUGUSTINE AT THE TIME OF THE MURDER, RATHER THAN IN, DURING THE PERIOD OF TIME THAT THE TRIAL COURT WAS CONCERNED ABOUT, SINCE IT WAS A RATHER LONG PERIOD?

YOUR HONOR, WE WERE UNABLE, IN OUR POST-CONVICTION RELIEF INVESTIGATION, DUE TO THE TIME PERIOD I HEARD IN THE LAST CASE, WE ARE TALKING ABOUT THESE TIME PAERDZ IN TEN YEARS AND FIVE YEARS. WE ARE DEALING WITH SIX TO SEVEN YEARS LATER. MR. LOTT HAD ALLEGED IN HIS MOTION THAT HE WAS IN THE LAKE BUTLER AREA OF FLORIDA, ON THE DAY OF THE MURDER, THAT HE THERE WENT FROM, TO ST. AUGUSTINE AND SPENT SOME TIME THERE AND THEN EVENTUALLY CAME BACK TO DeLAND, FLORIDA, WHERE HE SPOKE WITH HIS MOTHER THE NEXT DAY, WHICH WOULD HAVE BEEN WITHIN THAT 26-HOUR PERIOD.

BUT YOU WERE UNABLE, IN YOUR INVESTIGATION, TO NARROW AT THE.

NO. THAT'S CORRECT. YOUR HONOR, WE WERE UNABLE TO NARROW IT.

WHAT GOOD DOES AN EVIDENTIARY HEARING GOING TO DO? I MEAN, IT SEEMS TO ME THAT, IF YOU CAN'T NARROW IT IN YOUR INVESTIGATION SO THAT IT CAN BE PLED, YOU ARE NOT GOING TO BE ABLE TO PROVE IT, AND SO THEREFORE AN EVIDENTIARY HEARING IS NOT GOING TO SOLVE THE PROBLEM.

YOUR HONOR, I BELIEVE THE EVIDENTIARY HEARING, IN ADDITION TO THE TESTIMONY OF THE WITNESS THAT WE NAMED IN OUR MOTION, MR. JONES, PLACING MR. LOTT IN LAKE BUTLER, FLORIDA, AS WELL AS MR. LOTT'S POTENTIAL TESTIMONY, WHICH IS ALSO A PART OF MY, ONE OF THE ISSUES I AM RAISING, MR. LOTT'S POTENTIAL TESTIMONY, PLACING HIM IN ST. AUGUSTINE, AND ALSO PLACING HIM IN DeLAND DURING THESE PERIODS, WOULD GIVE SOME LACK OF CREDIBILITY TO WHETHER HE COULD HAVE ACTUALLY COMMITTED THE CRIME DURING THIS ENTIRE PERIOD OF TIME.

WELL, MR. LOTT WAS ALWAYS AVAILABLE TO TESTIFY AS TO THESE CIRCUMSTANCES, WAS HE NOT?

HE WAS AVAILABLE TO TEST MY, YOUR HONOR, BUT -- TO TESTIFY, YOUR HONOR, BUT AS WE HAVE ALLEGED IN OUR MOTION, HE WAS PREVENTED FROM TESTIFYING BY HIS ATTORNEY, AND THE TRIAL COURT INDICATES THAT THE RECORD BELIES THIS ARGUMENT, IN THAT AFTER THE TRIAL WAS OVER, AFTER CLOSING ARGUMENT, AFTER JURY INSTRUCTION AND AFTER THE JURY WAS ALLOWED TO RETIRE, AND I BELIEVE EVEN AN AFTER THE JURY HAD A QUESTION, IF MY RECORD, RECOLLECTION OF THE RECORD IS CORRECT, THAT THE TRIAL JUDGE ASKED MR. LOTT, AT THAT POINT IN TIME, WHETHER HE WAS SATISFIED WITH HIS COUNSEL, AND HE INDICATED HE WAS, AND THE COURT ALSO ASKED HIM IF IT WAS A JOINT DECISION THAT HE NOT TESTIFY, AND HE ALSO, AT THAT POINT, ANSWERED IN THE AFFIRMATIVE. I HAVE ALLEGED, IN MY BRIEF AND IN OUR MOTION, THAT THIS TIME, WHEN MR. LOTT SHOULD HAVE BEEN QUESTIONED REGARDING HIS TESTIMONY OR NONTESTIMONY IN THIS MATTER, SHOULD HAVE BEEN CONTEMPORANEOUS WITH THAT TIME IN WHICH A DEFENDANT WOULD NORMALLY TESTIFY AT A TRIAL, WHICH IS AFTER A RECESS, AFTER MOTIONS ARE MADE FOR JUDGMENT OF ACQUITTAL, AND THE COURT, TRIAL COURT IN MY EXPERIENCE, AS A TRIAL ATTORNEY, NORMALLY ASKS THE DEFENDANT OR DEFENSE COUNSEL IS ASKED BY THE COURT WHETHER THERE THE DEFENDANT IS GOING TO TESTIFY.

IS IT THE COUNSEL'S POSITION THAT HE WOULD HAVE HAD THE DEFENDANT TESTIFY, WITH THE ORIGINAL COUNSEL, WHEN HE WAS REST SOMETHING.

YES, YOUR HONOR. I HAD PERSONAL MAKINGS WITH MR. RICHMOND, AND HE ADVISED ME THAT DURING ALL OF THE PROCEEDINGS IN THE PREPARATION OF THIS CASE, THAT HE AND MR. LOTT FELT THAT IT WAS ESSENTIAL FOR HIM TO TAKE THE STAND IN THIS MATTER, IT TO REBUT ALLEGATIONS OF HIM BEING IN OTHER PARTS OF THE VICTIM'S HOME WHERE HIS FINGERPRINTS WERE FOUND. MR. LOTT, IF THE COURT WOULD RECALL FROM THE RECORD INITIALLY IN THIS CASE, WHERE THE COURT AFFIRMED HIS CONVICTION, MR. LOTT WAS A HANDYMAN, AND A, CUT GRASS AND HAD A LAWN SERVICE BUSINESS, AND HIS TESTIMONY WOULD HAVE BEEN VERY HELPFUL IN REBUTTING THE STATE'S ARGUMENT THAT HE SHOULDN'T HAVE BEEN IN OTHER PARTS OF THIS HOME.

COULD YOU ALSO ADDRESS THE, MRS. WHITMAN AND NOT JUST PART ABOUT THAT HER HUSBAND HAD A REPUTATION FOR UNTRUTHFULNESS BUT AS TO WHAT WOULD HAVE BEEN IMPORTANT IN DEFENSE, IF SHE HAD TESTIFIED ABOUT WHEN HER HUSBAND TOLD HER ABOUT THE DETAILS OF THE CRIME? YOU KNOW, WHETHER THAT CONTRADICTED SOMETHING? I AM CONFUSE BAD. THAT.

IN OUR POSTCONVICTION -- I AM CONFUSED ABOUT THAT.

IN OUR POSTCONVICTION INVESTIGATION, MRS. WHITMAN ADVISED OUR INVESTIGATOR THAT IN FACT, ROBERT WHITMAN HAD, PRIOR TO HIM CONTACTING, I BELIEVE IT WAS THE VOLUSIA COUNTY SHERIFFS DEPARTMENT, AND PRIOR TO HIM MEETING WITH KEN LOTT TO DISCUSS THE DISPOSAL OF THE JEWELRY THAT WAS ALLEGEDLY TAKEN FROM THE VICTIM, IT RELATED TO HER FACTS AND CIRCUMSTANCES OF WHERE HE HAD HE BEEN AND FACTS AND CIRCUMSTANCES WHICH WERE NOT PUBLISHED, IN THAT HE MY THE FACTS OF THIS MURDER BEFORE ANY OF THE FACTS CAME OUT.

WAS IT THE IMPLICATION THAT WHITMAN IS THE ONE THAT ACTUALLY DID THE CRIME? IS THAT WHAT --' THAT IS THE IMPLICATION WE HAVE ATTEMPT ODD TO RAISE, IN THAT HE WAS WELL AWARE OF THE FACTS AND CIRCUMSTANCES OF THIS CRIME, BEFORE MR. LOTT EVER APPROACHED HIM. AND MR. WHITMAN, AS THIS COURT, IN ITS AFFIRMANCE, PLACED GREAT WEIGHT UPON THE TESTIMONY OF MR. WHITMAN, AS TO WHAT HE DID WITH MR. LOTT. THE STATEMENTS THAT HE GOT FROM MR. LOTT WHEN HE WAS WIRED BY THE SHERIFFS DEPARTMENT TO OBTAIN STATEMENTS FROM MR. LOTT.

BUT THIS COURT'S --

WHAT IF ANYTHING, DO YOU ALLEGE THAT DEFENSE COUNSEL ACTUALLY FEW ABOUT MRS. WHITMAN? ARE YOU -- ACTUALLY KNEW ABOUT MRS. WHITMAN? ARE YOU SAYING THAT THEY KNEW THAT SHE WOULD HAVE SAID THIS OR THAT HE FAILED TO INVESTIGATE AND FIND OUT THAT SHE WOULD HAVE SAID THIS?

OUR ALLEGATION IS THAT HE FAILED TO INVESTIGATE AND FIND OUT. HE FAILED TO TAKE ANY DEPOSITIONS OF HER. A LOT OF THE MEETINGS WITH MR. WHITMAN BY THE SHERIFFS DEPARTMENT WERE CONDUCTED AT MR. WHITMAN'S RESIDENCE. HIS WIFE WAS PRESENT.

WAS THERE ANYTHING THAT WOULD HAVE LED DEFENSE COUNSEL TOE BELIEVE THAT MRS. WHITMAN WAS INVOLVED IN SOME WAY IN THIS AND SHOULD HAVE BEEN DEPOSEED?

NOT THAT SHE WAS INVOLVED BUT THAT SHE WAS A POTENTIAL WITNESS AGAINST, SINCE SOME OF THE OCCURRENCES OCCURRED AT WHITMAN'S RESIDENCE.

AND SO THAT, ALONE, SHOULD HAVE MADE HIM DECIDE TO DEPOSE HER.

AT LEAST ATTEMPT TO DEPOSE HER OR TO FIND THIS EVIDENCE OR SPEAK WITH HER, MAKE AN EFFORT ON BEHALF OF MR. LOTT.

YOUR ALLEGATION IN THE MOTION IS, REALLY, LIMITED TO SAYING THAT SHE, YOUR INVESTIGATOR WAS ADVISED BY MRS. WHITMAN THAT MR. WHITMAN KNEW SOME DETAILS BEFORE HE EXACTED MR. LOTT. I MEAN, THAT IS THE BARE ALLEGATION, RIGHT?

BEFORE HE CONTACTED THE SHERIFFS DEPARTMENT AS AN INFORMANT.

BEFORE HE CONTACTED THE SHERIFFS DEPARTMENT. THE STATE'S RESPONSE IT IS EVIDENT FROM THE RECORD THAT HE DIDN'T CONTACT THE SHERIFFS DEPARTMENT FOR A COUPLE OF WEEKS AFTER HE BECAME, I MEAN, THAT WAS KNOWN.

YES, SIR.

AND, BUT MY, BUT IS THERE, WHAT IS THIS, WHAT IS YOUR ALLEGATION THAT THIS WOMAN IS GOING TO BE ABLE TO TESTIFY OR ANYBODY, ANY EVIDENCE THAT YOU HAVE ALLEGED, AS TO WHITMAN BEING THE MURDERER OR THAT IS WHAT LOSES ME IS THE CONNECTION HERE.

HER TESTIMONY, YOUR HONOR, I BELIEVE, CASTS CONSIDERABLE DOUBT ON MR. WHITMAN'S VERACITY IN THIS CASE, AS FAR AS ACTING IN THE CAPACITY HE WAS ACTING AS AN INFORMANT, MY OPINION AS AN INFORMANT, FOR THE POLICE DEPARTMENT. AND MRS. WHITMAN CAN LOOK AT AND HAS LOOKED AT THE SITUATION AND CAN TELL THE COURT, IN AN EVIDENTIARY HEARING, THAT WHITMAN KNEW ABOUT THIS, AND THAT THEREFORE, HIS VERACITY AND HIS TRUTHFULNESS ARE DEFINITELY IN DOUBT.

SO THIS IS, REALLY, IN SUM AND SUBSTANCE, A FURTHER ATTACK ON THE CREDIBILITY OF WHITMAN.

A FURTHER ATTACK, I BELIEVE A MORE SUBSTANTIAL ATTACK THAN WAS ATTEMPTED TO HAVE BEEN MOUNTED AT THE TRIAL, IN THAT TRIAL COUNSEL WAS NOT EVEN ABLE TO QUALIFY MR. WHITMAN'S BROTHER TO TESTIFY AS TO HIS TRUTH AND VERACITY.

WHAT ABOUT YOUR ALLEGATIONS ON THE PENALTY PHASE, INEFFECTIVE ASSISTANCE OF COUNSEL, ARE FAIRLY SLIM. I MEAN, YOU HAVE DR. DEE, WHO DID TESTIFY AS TO SOME OF THE STATUTORY MITIGATORS, AND THE JUDGE FOUND STATUTORY MITIGATORS AND GAVE THEM CONSIDERABLE WEIGHT, SO WHAT ARE YOU PREPARED, AND I REALIZE WE ARE ASKING, PERHAPS, MORE THAN MAYBE HAD TO BE PLED IN A MOTION, BUT WE ARE HERE ON APPEAL, THAT YOU WOULD, IF YOU HAD AN EVIDENTIARY HEARING ON THE PENALTY PHASE, DO YOU HAVE THE COMPELLING EVIDENCE OF ADDITIONAL MITIGATION QUALITATIVELY DIFFERENT THAN WAS PRESENTED? WHAT IS THE GIST OF THE PENALTY PHASE?

THE GIST OF MY ARGUMENT THERE IS THAT MR. SPECTOR, TRIAL COUNSEL, DID NOT PREPARE WHATSOEVER, FOR MITIGATION. HE -- NEITHER CO-COUNSEL HAD EVER TRIED A DEATH CASE?

NO, YOUR HONOR. AND NEITHER COUNSEL GAVE DR. DEE ANY DOCUMENTATION, OTHER THAN THE DISCOVERY FILE WHICH THE STATE HAD PRESENTED TO THE DEFENSE, AND TWO DEPOSITIONS OF WITNESSES WHO TESTIFIED IN THE CASE. HE DID NOT NAME ANY FAMILY MAEBS, AS DR. DEE LATER INDICATED IN OUR INVESTIGATION, HE FOUND ADDITIONAL MATERIALS THAT HE COULD HAVE USED AND MATERIALS THAT HE COULD HAVE USED TO BOLSTER HESS TESTIMONY, WHICH FROM THE RECORD WAS TORN APART BY MR. ASHTON.

WHAT WAS THE MOST COMPELLING ASPECT OF THE PENALTY PHASE MITIGATION THAT YOU HAVE DISCOVERED AND IS IN THE RECORD, THAT WOULD BE ABLE TO BE PRESENTED, IF THERE WERE A NEW PENALTY PHASE?

WELL, A THAT MR. LOTT WAS A DRUG ADDICT, HAD A SUBSTANTIAL HISTORY OF DRUG ABUSE THAT, MR. LOTT HAD, AS HE TESTIFIED, A BRAIN INJURY, AND TO BE HONEST WITH THE COURT, WE WERE UNABLE TO FIND RECORDS OF THAT BRAIN INJURY. IT HAPPENED WHEN HE WAS FOUR OR FIVE YEARS OLD, AND THE HOSPITAL ADVISES THE RECORDS HAD BEEN DESTROYED. BUT HIS ABUSIVE CHILDHOOD. THERE WERE SEVERAL WITNESSES CALLED, INCLUDING HIS MOTHER, I BELIEVE AT MITIGATION, WHO WEREN'T EVEN QUESTIONED ABOUT THAT, AND THESE TYPE OF THINGS GIVE MORE CREDENCE TO DR. DEE'S TESTIMONY, WHEN ALL THE FAMILY MEMBERS THAT WE HAVE INTERVIEWED AND PROVIDED TO DR. DEE WOULD TESTIFY.

ISN'T THERE, THE MENTAL MITIGATORS WERE, IN FACT, FOUND IN THIS PARTICULAR CASE?

YES, YOUR HONOR.

SO THIS EVIDENCE THAT YOU ARE NOW TALKING ABOUT, AT LEAST PART OF IT SEEMS WOULD SUPPORT THOSE, AND I AM HAVING A HARD TIME TRYING TO FIGURE OUT IF WE HAVE ALREADY FOUND THOSE TO EXIST, BASED ON THE EVIDENCE THAT WAS PRESENTED AT THE PENALTY PHASE.

Ni THE TRIAL COURT DID FIND THOSE TO EXIST, YOUR HONOR, BUT WE BELIEVE THAT THEY COULD HAVE BEEN ENHANCED AND FURTHERED THROUGH THE PROPER PRESENTATION OF DOCUMENTATION TO THE ONE, THE SOLE EXPERT WITNESS THAT WAS CALLED. STATE DIDN'T EVEN CALL AN EXPERT WITNESS. THE STATE'S COMMENT TO THE JURY, WHICH I HAVE ARGUED IN MY MOTION, IS THERE HAS BEEN NO MITIGATION.

ARE YOU SAYING THAT DR. DEE NOW IS READY TO GIVE DIFFERENT OPINIONS OR YOU HAVE ANOTHER EXPERT THAT --

I HAVE ALSO SPOKEN TO ANOTHER EXPERT, WHO IS A NEUROPHARMACOLOGIST, AND, BUT HE HAS NOT REVIEWED THE RECORD IN THIS CASE.

CHIEF JUSTICE: WE HAVE TO BE VERY CAREFUL, HERE, THROUGHOUT YOUR ARGUMENT, YOU HAVE BEEN REFERRING TO SPEAKING TO WITNESSES AND INVESTIGATING OR WHATEVER, AND WE HAVE TO BE VERY CAREFUL THAT EITHER YOU HAVE INCLUDED THESE THINGS AS ALLEGATIONS IN YOUR MOTION OR THAT THEY WERE PROFFERED AT THE HUFF HEARING, AS POTENTIAL EVIDENCE, AND ARE WE CLEAR ON THAT NOW?

HE -- I UNDERSTAND THAT, YOUR HONOR.

CHIEF JUSTICE: THAT EVERYTHING YOU HAVE BEEN TELLING US WAS PROFFERED TO THE TRIAL COURT BEFORE THE DENIAL OF THIS MOTION?

I BELIEVE IT WAS IN THE MOTION AND PROBABLY COULD HAVE BEEN SET OUT IN MORE DETAIL, BUT I BELIEVE IT WAS SUFFICIENT TO AT LEAST GET MR. LOTT TO AN EVIDENCE YEAR -- AN EVIDENTIARY HEARING, AND THAT IS WHAT I AM ASKING THIS COURT TO DO.

WOULDN'T YOUR ARGUMENT LEAD US TO ABSOLUTELY A HEARING IN EVERY SITUATION UPON THE ALLEGATION THAT WE CAN DO IT JUST A LITTLE BIT BETTER, BECAUSE CORRECT ME IF I AM WRONG, BUT IT APPEARS HERE THAT THE EXPERT DID GO INTO THE DRUG USAGE, DID GO INTO THE BRAIN DAMAGE, AND DID CALL BOTH FAMILY AND FRIENDS TO TESTIFY HERE. SO WOULDN'T THAT LEAD US INTO, I MEAN, VIRTUALLY EVERY CASE, YOU CAN ALWAYS LOOK AT SOMETHING IN 20/20 HINDSIGHT AND SAY WE CAN DO IT A LITTLE BIT BETTER, BUT ALL OF THESE OTHER AREAS WERE TOUCHED UPON IN OTHER QUESTIONING AND THEY WERE FOUND BY THE TRIAL JUDGE, SO WHERE WOULD THIS LEAD US IF WE WERE TO EXTEND THIS KIND OF ARGUMENT TO EVERY CASE?

I BELIEVE IT WOULD LEAD US TO A MORE COMPLETE DETERMINATION AND A WITNESS WHO IS NOT DISCREDITED THEY MY OPINION, BY THE STATE ATTORNEY IN HIS CROSS-EXAMINATIOnu, AND LEAD US TO STRONGER AND MORE VIABLE TESTIMONY FOT JURY TO CONSIDER AND COUNSEL TO BE ABLE TO ARGUE.

CHIEF JUSTICE: OKAY. THE MARSHAL HAS REMINDED US THAT WE ARE INTO YOUR REBUTTAL TIME, IF YOU WANT TO SAVE THAT TIME. GOOD MORNING.

GOOD MORNING, YOUR HONOR. SCOTT BROWNE FOR THE STATE OF FLORIDA. THE TRIAL COURT'S SUMMARY DENIAL REFLECTED THAT APPELLANT'S ALLEGATIONS WERE EITHER FACIALLY INSUFFICIENT OR REFUTED BY THE RECORD OR, IN MANY INSTANCES, BOTH. FIRST OF ALL, WITH REGARD TO THE ALIBI, AS WE ADDRESS THIS COURT TODAY, THERE IS NOT ONE SINGLE WITNESS THAT THE APPELLANT HAS IDENTIFIED THAT CAN STATE WHEN HE SAW APPELLANT OUT OF THE AREA OF THE MURDER SCENE. NOT ONE. NOW, HE REFERS TO ELMER JONES, BUT AT THE HUFF HEARING, IT WAS CLARIFIED FOR THE TRIAL COURT THAT ELMER JONES COULD ONLY TESTIFY THAT HE SAW LOTT IN HIS TRUCK OR SOMEONE RESEMBLING LOTT IN HIS TRUCK InnI THE PAST IN LAKE BUTLER AT THE FOOD COURT.

HOW WOULD THIS CAST DOUBT ON THE DEFENDANT?

BASICALLY CAST DOUBT ON THE CASE. BASICALLY THE APPELLANT'S MOTHER ATTACKED THE WITNESS VERACITY, BUT THERE IS SO MUCH COMPELLING EVIDENCE OF THE APPELLANT'S PRESENCE IN THE HOME, BUT THE FACT THAT HE USED HER ATM CARD TO WITHDRAW MONEY AT THE MOST, WITHIN 24 HOURS OF HER MURDER, SO THE STATE DID WHAT IT COULD TO CHIP AWAY AT HIS CASE AND CREDIBILITY, AND THE STATE DID WHAT IT THOUGHT WAS A GOOD JOB, BUT AS FAR AS THE EVIDENTIARY DEFENSE, IT IS NOT --

IS IT A CLEAR -- IS IT CLEAR THAT THE WITNESS COULD NOT PINPOINT THE TIME OF THE PRESENCE OF THE DEFENDANT AT THIS PARTICULAR PLACE --

THAT'S CORRECT, YOUR HONOR, AND WHAT THE TRIAL COURT WAS LOOKING FOR WAS SOME KIND OF ELABORATION. COUNSEL ALSO MENTIONED THAT HE WAS A SONNY'S BARBECUE AT ST. AUGUSTINE BUT HE ADMITS THERE IS NO EVIDENCE TO REFLECT THAT OR SUPPORT IT.

NO CLAIM OF PERSONNEL OR STATEMENTS THAT ARE AVAILABLE NOW --

EXACTLY, YOUR HONOR. TO THE CONTRARY, IN FACT, THE APPELLANT ADMITS THAT THERE IS NO SUCH EVIDENCE, SO THERE IS CLEARLY NO REASON TO HOLD AN EVIDENTIARY HEARING ON THE ALIBI DEFENSE. I WOULD ALSO REMIND THIS COURT THAT APPELLANT FAILED TO ESTABLISH, WITHIN THE FACTS OF THE CASE, THAT ANY KIND OF PREJUDICE, BECAUSE, AGAIN, THERE WAS OVERWHELMING EVIDENCE OF GUILT IN THIS CASE. YOU HAVE THREE FINGERPRINTS OF THE APPELLANT IN AREAS THAT WERE CRITICAL TO OR INVOLVED IN THE MURDER. INSIDE THE MASTER BATHROOM ON THE SINK, AND THE ONLY WAY TO GET TO THAT BATHROOM IS THROUGH THE MASTER BEDROOM. BEDROOM NUMBER TWO, WHERE THE VICTIM'S SOILED PANTIES WERE FOUND, WHERE THERE WERE FECES ON THE FLOOR. WE KNOW THE MURDER WAS IN THERE. HIS FINGERPRINT IS ON THAT DOOR JIM.

-- DOORJAMB.

DOESN'T THAT BRING US TO THE ARGUMENT NOW THAT COUNSEL WAS POSSIBLY INEFFECTIVE FOR FAILING TO HAVE MR. LOTT TESTIFY, BECAUSE MR. LOTT COULD HAVE EXPLAINED, POSSIBLY EXPLAINED THE PRESENCE OF HIS FINGERTIPS, FINGERPRINTS IN VARIOUS PORTIONS OF THE VICTIM'S HOUSE?

NO, YOUR HONOR. IN FACT, THE RECORD REFLECTS THAT IT WAS A REASONABLE DECISION MADE BY LOTT, IN CONSULTATION WITH HIS ATTORNEYS. NOW, WE HAVE TESTIMONY ON THE RECORD, THE JUDGE IS QUESTIONING MR. LOTT, ARE YOU, DO YOU WANT TO TESTIFY? DID YOUR ATTORNEYS FORCE YOU TO DO ANYTHING IN THIS CASE OR ANYTHING, DID THEY DO ANYTHING THAT YOU DIDN'T WANT THEM TOE DO ON THE RECORD?

-- WANT THEM TO DO, ON THE RECORD?

IS THAT AN EXPLICIT QUESTION, "DO YOU WANT TO TESTIFY"?

YES, URPINGS, AND I PUT THAT IN MY BRIEF. YOU DID NOT TESTIFY, MR. LOTT. ABSOLUTELY BLUNT AND TO THE POINT. YOU DID NOT TESTIFY, MR. LOTT. DID YOU WANT TO TESTIFY? AND THAT WAS PRIOR TO A JURY VERDICT IN THIS CASE. THE FACT THAT HIS TESTIMONY, THE FACT THAT HE CHANGED HIS MIND NOW, AFTER AN UNFAVORABLE VERDICT, IF HE HAD WANTED TO TESTIFY AT THAT TIME, HE COULD HAVE TOLD THE TRIAL COURT THAT HE WANTED TO TESTIFY NOW, AND THAT HIS INITIAL STRATEGY AND THE OVERWHELMING EVIDENCE THAT THE STATE HAD AGAINST HIM IN THE CASE.

YOU MENTION A GREAT DEAL ABOUT THE FACT OF IT NOT HAPPENING AND THE JURY HAD ALREADY RETIRED TO CONSIDER A VERDICT AND IN FACT IT EVEN PRESENT ADD QUESTION. DOES THAT ALTER YOUR ANALYSIS ANY WAY?

NOT AT ALL, YOUR HONOR. IS THE APPELLANT ALLOWED TO SIT THERE AND MISLEAD THE COURT AS PART OF THE JURY VERDICT? AND REMEMBER THIS IS NOT THE ATTORNEY IS HOLDING A GUN TO HIS HEAD. THESE ARE NOT JUST ONE QUESTION BUT SEVERAL QUESTIONS, AND THEY ALSO REFLECTED WHETHER OR NOT HE WAS HAPPY WE HIS ATTORNEYS OR NOT, AND HE SAID NO.

HOW DOES MR. RICHARDSON'S TESTIMONY FACTOR INTO THE SAME ANALYSIS THEN?

MR. RICHARDSON, I GUESS, THE POINT OF HIS PROPOSED TESTIMONY, FROM THE MOTION, WAS THAT HE THOUGHT THAT IT WAS IMPORTANT FOR THE DEFENDANT TO TESTIFY, AND THAT THEY THOUGHT ABOUT HIM TESTIFYING. ALL HIS STATEMENT IN THE MOTION REFLECTS TO ME, IS THAT THEY WERE DEBATING, AS YOU WOULD IN ANY TRIAL, WHETHER OR NOT YOU ARE GOING TO PUT THE DEFENDANT ON THE STAND, AND AGAIN IN THIS CASE, THE DEFENDANT, THE APPELLANT ATTACKS WITNESS CREDIBILITY. IT IS IMPORTANT TO NOTE THAT WITNESS TESTIMONY WAS CRAB RATED IN ALMOST EVERY -- WAS CORROBORATED IN ALMOST EVERY SIGNIFICANT RESPECT. LOTT HAD THE VICTIM'S STOLEN JULIERY. HE OFFERED TO SELL -- JEWELRY. HE OFFERED TO SELL IT NOT ONLY TO MR. WHITMAN BUT TO HIS FRIEND, MR. LOTT'S FRIEND DAVID PRATT. WE KNOW HIS WIFE HAD THE MOST EXPENSIVE PIECE OF JEWELRY, THE DIAMOND TENNIS BRACELET, AND THAT WAS TESTIFIED TO BY COWORKERS. THAT REFLECTED THE STORY --

WHEN YOU ANALYZE THIS EVIDENCE, DOES THAT REALLY NEGATE THE POSSIBILITY THAT WHITMAN WAS, IN FACT, INVOLVED IN THIS PARTICULAR CASE? I MEAN, THEY GOT TOGETHER AND DIVIDED UP LOOT OR WHATEVER YOU MIGHT WANT TO CALL IT, BUT I MEAN, THAT DOESN'T NEGATE THE FACT THAT, IF WHITMAN KNEW OF THE DETAILS OF THIS CRIME, PRIOR TO HIM TALKING TO LOT AND PRIOR TO GOING TO THE POLICE, THAT A REASONABLE PERSON MIGHT INTERPRET THAT AS WHITMAN BEING INVOLVED?

WELL, YOUR HONOR --

ADMITTED THE CRIME?

NO. I MEAN YOU WOULD REALLY HAVE TO STRETCH KRAED YOU WILLITY SO FAR THAT -- CREDULITY SO FAR THAT, AGAIN, WHEN YOU ARE TALKING ABOUT A POSSIBLE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AGAIN, YOU HAVE TO FIT THOSE FACTS INTO A REASONABLE POSSIBILITY OF A RESULT. NOW, IF YOU STRETCH YOUR CREDIBILITY THAT FAR, TO TRY AND SHOW THAT WHITMAN WAS INVOLVED, AND, AGAIN, MR. LOTT WAS THE ONE THAT PROFITED. HE IS THE ONE, MR. WHITMAN ALLOWED HIS PHONE TO BE TABBED AND -- TAPPED AND CONVERSATIONS ABOUT MR. LOTT GIVING HIM JEWELRY THAT HE HAD STOLEN, TO SELL. SO IT IS CLEAR --

WHEN YOU ARE HERE WITHOUT THE BENEFIT OF HAVING AN EVIDENTIARY HEARING, ON A COLD RECORD, AS TO WHETHER OUR CONFIDENCE IN THE OUTCOME IS UNDERMINED, AND IT IS TROUBLING TO ME, IN TERMS OF WHETHER LOT WOULD BE CREDIBLE OR NOT, WE DON'T HAVE THAT DETERMINATION, BECAUSE NOBODY HAS MADE THAT DETERMINATION, BUT WE HAVE GOT A CO-COUNSEL WHO TESTIFIED THAT HE HAD AGREED THAT THEY WOULD TESTIFY, AND HE WAS SHOCKED WHEN THE OTHER ATTORNEY RESTED. NO COLLOQUY AT THAT TIME ON THE RECORD, AND AWAY TO TAKE THE MOST COMPELLING EVIDENCE AND, A PERHAPS, EXPLAIN IT AWAY. ISN'T IT A BETTER PRACTICE TO, EVEN THOUGH WE STILL THINK THIS GUY IS PROBABLY GUILTY OR THAT, TO MAKE SURE THAT THAT CLAIM IS EXPLORED THAT, THIS MAN'S RIGHT TO TESTIFY WAS NOT INTERFERED WITH, THAT WHETHER HE IS CREDIBLE OR NOT CREDIBLE, JUDGE CAN MAKE A FINDING, IF HE TESTIFIES AT THE EVIDENTIARY HEARING THAT THERE IS NO CREDIBILITY TO WHAT HE SAID, THEN WE HAVE THAT AS THE RECORD, AS OPPOSED TO SOME JUST MAKING SOME LEAPS ON EACH OF THESE, AS TO THAT IT WOULDN'T HAVE MADE A DIFFERENCE.

WELL, YOUR HONOR, FIRST OF ALL, IF WE DID NOT HAVE MR. LOTT IN OPEN COURT, BEFORE THE JUDGE, WITH HIS DEFENSE ATTORNEYS PRESENT, SAYING THAT, YES, I AGREED IT WAS MY DECISION NOT TO TESTIFY --

BUT IT WASN'T QUITE -- COULD YOU HAVE THE COLLOQUY? I THOUGHT AGAIN, WITH ALL DUE DEFERENCE, THE JURY IS ALREADY OUT. THEY HAVE BEEN INSTRUCTED, AND IN A VERY, SO THIS WAS A JOINT DECISION, YES. I DON'T, I AM NOT, IF IT WEREN'T FOR THE ALLEGATION THAT THE CO-COUNSEL SAYS THAT THE DECISION WAS THERE AND HE WAS SHOCKED, I WOULD BE A LITTLE MORE UNDERSTANDING OF THIS, BUT WE REALLY REQUIRE THAT, WHEN SOMEBODY IS NOT TESTIFYING, THAT THE JUDGE, THEY ARE GOING TO INQUIRE, THEY SHOULD BE INQUIRING AT THAT TIME IS THIS YOUR DECISION, AS OPPOSED TO AFTER THE JURY GOES OUT.

YOUR HONOR, I DON'T THINK, ESPECIALLY AT THAT TIME, AND I DON'T BELIEVE IT RECEIVE ENA REQUIREMENT NOW. THE LAW DOESN'T REQUIRE SUCH A COLLOQUY, BUT THE FACT THAT THERE WAS ONE AND NOW MR. LOTT HAS CHANGED HIS MIND, DOESN'T MEAN WE HAVE TO HOLD A HEARING ON IT, BECAUSE HE IS GOING TO SAY, WELL, I WAS LIING IN OPEN COURT. I DIDN'T SAY. THAT THE JUDGE MADE A POINT OF GOING OUT AND SAYING LOOK, I WANT TO TIE UP LOOSE ENDS HERE. MR. LOTT, HAS YOUR ATTORNEY DONE ANYTHING THAT YOU DIDN'T WANT HIM TO DO? NO. YOU HAVEN'T TESTIFIED. DID YOU WANT TO TESTIFY? AND HE REPLIED NO. THERE IS NO INDICATION THAT THE CLIENT WAS INCOMPETENT AT ANY TIME. I THINK THIS IS CLEAR ON THE RECORD AS TO THE FACTUAL ALLEGATIONS.

COUNSEL, AS TO THE NUMBER OF ISSUES THAT THERE SHOULD BE AN EVIDENTIARY HEARING, WHAT IS YOUR POSITION?

ABSOLUTELY NONE, YOUR HONOR, AND HERE IS WHY. THAT WAS AN EXTREMELY CAUTIOUS TACTICAL DECISION. THE STATE WAS COGNIZANT OF THIS COURT'S PREFERENCE FOR EVIDENTIARY HEARINGS, AND WE WERE AWARE OF THE NEW RULE WHICH HAS NO EFFECT AND CERTAINLY HAS NO APPLICATION IN THIS CASE, BUT THAT STIPULATION ONLY OCCURRED ON A MOTION FOR REHEARING, AND IT SHOULD NOT BE TAKEN AS ANY COMMENT OAT MERIT OF HIS CLAIMS, BECAUSE IT CLEARLY WAS NOT. THIS JUDGE'S ORDER, THIS JUDGE WAS RIGHT. THE STATE WAS WRONG ON REHEARING, TO CONCEDE A HEARING ON TWO OF THESE ISSUES.

YOU SAY WE SHOULDN'T TAKE IT AS ANY COMMENT ON THE MERITS OF THE CLAIM, BUT SHOULDN'T WE TAKE ON A COMMENT ON WHETHER THERE SHOULD BE AN EVIDENTIARY HEARING, THAT THE STATE STIPULATED TO ONE?

WELL, YOUR HONOR, I WAS INVOLVED IN THAT DECISION, UNFORTUNATELY, AND I AM WRONG. I WAS WRONG. I -- FLAT-OUT WRONG. IT WAS AN EXTREMELY CAUTIOUS APPROACH. THE JUDGE'S ORDER IS WELL-WRITTEN, SUPPORTED BY THE RECORD AND SHOULD STAND. AND WE SHOULDN'T BE LABOR THE MATTER --

THIS WAS A MOTION THAT WAS FILED IN FEBRUARY OF 20021.

CORRECT, YOUR HONOR. -- OF 2001.

CORRECT, YOUR HONOR.

AND WE ARE DEALING WITH SOMETHING THAT WAS PRIOR TO THE AE. THE RULE.

THAT TOOK EFFECT ON OCTOBER 1RTION I BELIEVE, OF 2 -- ON OCTOBER 1, I BELIEVE, OF 2001. I WANT TO ADDRESS BRIEFLY THE --

LET ME GO BACK FOR A SECOND. IF SCOTT RICHARDSON GAVE AN AFFIDAVIT AND SAID THAT IT WAS HIS DECISION AND LOTT'S DECISION THAT HE SHOULD, THAT LOTT SHOULD TESTIFY, AND THAT THE OTHER LAWYER JUST SIMPLY, YOU KNOW, RESTED WITHOUT ANY AUTHORITY FROM EITHER. ARE YOU SAYING THAT, EVEN IN LIGHT OF THAT FROM A LAWYER, THAT TYPE OF TESTIMONY, THAT WE WOULD NOT WANT TO HAVE AN EVIDENTIARY HEARING, TO EXPLORE THAT PRETTY SERIOUS ALLEGATION?

YOUR HONOR, I DON'T THINK IF YOU LOOK AT THE ALLEGATION AS PLED, AND WHAT THAT ATTORNEY MIGHT HAVE SAID, HAD THERE BEEN A HEARING, IT DOESN'T INDICATE THAT, TO ME, ANYWAY, THAT THERE HAD BEEN A FINAL DECISION YET. IT JUST MEANS THAT THEY HAD PLANNED FOR HIM TO TESTIFY ALL ALONG, BUT THEN MADE THAT DECISION, AND THAT IS HOW TRIALS ARE. I MEAN, YOU MAKE THAT DECISION, WHETHER OR NOT TO TESTIFY, MR. LOTT HAD AN EXTENSIVE FELONY HISTORY. YOU HAVE TO SEE WHAT THE STATE PRESENTS. THAT IS OFTEN A LAST-MINUTE, LASSO HOUR DECISION. AND THAT IS NOT -- LAST HOUR DECISION. AND THAT IS NOT UNUSUAL. IN FACT THAT OCCURS IN MORE CRIMINAL TRIALS THAN NOT, SO THE FACT THAT LOT WAS GIVEN THE OPPORTUNITY IN OPEN COURT TO SAY DID YOU WANT TOFIES OR NOT, AND HE MISLEADS AND LIES TO THE JUDGE AND WE ARE GOING TO GIVE HIM A HEARING NOW, SO HE CAN TRY STRATEGY B SO HIS -- STRATEGY B, BECAUSE HIS INITIAL ONE DIDN'T WORK? THE PENALTY PHASE, SIX STRONG AGGRAVATING FACTORS. CCP, PRIOR VIOLENT FELONIES, WE HAVE A 12-0 VOTE FOR DEATH IN THIS CASE. THE APPELLANT TORTURED AND MURDERED ROSE CONNOR FOR MONEY. HE USED PLIERS ON HER. THIS IS AN EXTENDED HORRIBLE DEATH, AND THE FACT THAT THERE WAS A 12-0 VOTE, THE FACT THAT THE APPELLANT HAD A BENEFIT OF A PSYCHIATRIC EXPERT DR. DEE, WHO TESTIFIED THAT BOTH STATUTORY MENTAL MITIGATORS APPLIED, THE JUDGE FOUND THOSE AND IT WAS CHARITABLE FINDING. SHE GAVE THOSE FACTORS CONSIDERABLE WEIGHT. NOW WE HAVE DR. DEE SAYING, WELL, LOOK, I CAN PERFECT MY TESTIMONY NOW. IT COULD BE STRONGER. HE DIDN'T SAY HIS DIAGNOSIS IS DIFFERENT, THAT HIS DIAGNOSIS HAD CHANGED E SAID IT WOULD BE STRONGER. -- HE SAID IT WOULD BE STRONGER, AND, AGAIN, I HAVE TO REFUTE SOME ALLEGATION HERE. THE RECORD REFLECTS THAT DR. DEE HAD AMPLE BACKGROUND MATERIAL. HE KNEW ALL OF LOTT'S EXTENSIVE CRIMINAL HISTORY. HE HAD THE D.O.C. RECORDS. HE KNEW THAT LOTT WAS A DRUG ABUSER. HE HAD TALKED TO TWO FAMILY MEMBERS AND FRIENDS, SO THE RECORD REFUTES HIS ALLEGATION CLEARLY, AND CERTAINLY THE RECORD DOES NOT REFLECT THAT THERE IS ANY POSSIBILITY OF A DIFFERENT RESULT, HAD DR. DEE TESTIFIED AGAIN, HAD ANY ADDITIONAL EVIDENCE OF HIS DRUG ADDICTION BEEN INTRODUCED, BECAUSE THE JURY WAS EXPOSE ODD TO. THAT AGAIN, THIS IS A BRUTAL CASE THERE. IS NO REASON TO ORDER AN EVIDENTIARY HEARING ON THIS CASE, BECAUSE HE IS SATISFIED, BASED ON HIS ALONG -- HE HAS SATISFIED, BASED ON HIS ALLEGATIONS, AND NEITHER PRONG HAS BEEN MET. WE WOULD ASK THAT THIS COURT AFFIRM THE TRIAL COURT.

CHIEF JUSTICE: UNLESS YOUR HONORS HAVE QUESTIONS, I WOULD WAIVE FURTHER REBUTTAL.

CHIEF JUSTICE: WOULD YOU, AT THE HUFF HEARING, WAS THE STATEMENT ON THE RECORD IN WHICH THE TRIAL COURT INQUIRED OF THE DEFENDANT PERSONALLY, AFTER THE JURY WENT OUT, WAS THAT DISCUSSED AT ALL IN THE CONTEXT OF THE ATTORNEY NOW APPARENTLY BEING PREPARED TO TESTIFY THAT HE WAS SHOCKED, WHEN LOT DIDN'T TESTIFY? -- WHEN LOTT DIDN'T TESTIFY? IN OTHER WORDS WAS THERE ANY ATTEMPT AT THAT POINT, TO SAY, WELL, THE LAWYER WILL SAY THAT THAT WAS A MISTAKE OR AN AMBIGUOUS STATEMENT OR THAT WASN'T REALLY CORRECT OR WHATEVER? IN OTHER WORDS THE DEFENDANT'S RESPONSE, WAS THAT DISCUSSED AT THE HUFF HEARING?

YOUR HONOR, MY RECOLLECTION IS THAT IT WAS. I HAVE NOT REVIEWED THE HUFF HEARING TRANSCRIPT RECENTLY, BUT MY RECOLLECTION WAS THAT IT WAS, AND TO POINT THE COURT TO THE EXACT COLLOQUY AT PAGE 1212 OF THE ORIGINAL RECORD, THE TRIAL COURT TALKS ABOUT A MR. GOODMAN. I MENTIONED HIM IN MY BRIEF, MR. GOODMAN, A THIRD ATTORNEY WHO CAME AND TALKED TO MR. LOTT AT THE TIME OF THE TRIAL, AND THE COURT ASKED MR. LOTT, OKAY, DID THE ATTORNEYS DO EVERYTHING THAT YOU ANTICIPATED THEY WOULD DO? HIS ANSWER, YES, MA'AM, AND WAS IT A JOINT CHOICE BY ALL THREE OF YOU THAT YOU WOULD NOT TESTIFY IN THE TRIAL? HIS ANSWER, YES, MA'AM, AND OKAY, IS THERE ANYTHING ELSE THAT THEY DID THAT YOU DIDN'T WANT THEM TO DO, AND THE DEFENDANT ANSWERED NO, JUST TO ANSWER ABOUT THE EXACT COLLOQUY THAT WAS GIVEN AT THE TIME OF THE TRIAL, BUT, AGAIN, THIS IS AFTER THE JURY HAS BEEN RELEASED AND EVEN, I BELIEVE, REQUESTED MATERIALS AND EVEN HAD A QUESTION.

BUT YOU BELIEVE THAT THIS WAS DISCUSSED AT THE HUFF HEARING AND THAT THERE WAS SOME ATTEMPT TO USE THE ATTORNEY'S TESTIMONY OR STATEMENT?

I BELIEVE IT WAS, YES, SIR.

OKAY. THANK YOU VERY MUCH. ANOTHER RECORD DOES REFLECT THAT MR. RICHARDSON WAS STANDING THERE WHEN THIS OCCURRED, CORRECT? DURING THE TRIAL.

HE WAS IN THE COURTROOM, YES, SIR, WHEN THIS COLLOQUY TOOK PLACE.

AND HE DENT, THERE IS NO STATEMENT BY HIM AT THAT TIME.

NO, YOUR HONOR, THERE IS NOT, NOT IN THE RECORD.

CHIEF JUSTICE: OKAY. ALL RIGHT. THANK YOU BOTH VERY MUCH. THE COURT IS GOING TO TAKE ITS MORNING RECESS OF 15 MINUTES, BEFORE WE HEAR THE LAST CASE ON THE DOCKET. WE WILL STAND IN RECESS FOR 15 MINUTES.

MARSHAL: PLEASE RISE.O[iS