HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN SESSION. ALL WHO HA VE CAU SE TO PLEA, GRAS NEAR , G IVE ATTENT ION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED ST ATES , THE GREAT STATE OF FLORIDAAND THIS HONL ABLE COUR T. '-- HONORABLE COURT. LADIES AND GENTLEMEN, T HEFLORIDA SUPREME COURT.PLEASE BE SEATED.
CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN, AND WELC OME TO THE FLORIDA SUPREME COURT. THE FIRST C ASE ON THE MORNING'S DOCKET IS D AVIS VERSUS THE STATE OF FL ORIDA . JUSTI CE QUINCE IS RECUSED ON THIS CASE , AND JUST ICE WE LLS WILL PARTICIPATE. HE, HE W ILL N OT BE PHYSICALLY PRESENT FOR THE ORAL ARGUMENTS THIS MOR NING , SINCE HE IS OUT OF TOWN ON A FEDERAL MEETING , BUT HE WILL BE DELIBERATING WITH US IN ALL OF THE CASES T HIS MORNING. SO WITH THAT , ARE THE PARTIES READY ? MS. McDERMOTT, YOU M AY PROCEED .
GOOD MORNING. LINDA McDERMOT T O N BEHALF MARK DAVIS. MAY IT PLEASE THE COURT . I WOU LD LI KE TO BE GIN BY ADDRESSING MR. DAV IS'S BRADY AND GIGLIO CLAIMS , AND ALSO IF TIME PERMITS , I WO UL D LIKE TO MOVE ON TO HIS PENALTY PHASE CLAIM. THE PICTURE PRESE NTED AT MARK DAVIS'S TRIAL WAS THAT HE HAD TORINGTED THIS VICTIM , AND HE W ANT -- HE HAD TARGETED THIS VICT IM, AND HE WANTED TO RIP THIS VIC TIM OFF AND DO HIM IN. THAT WAS THE TESTIMON Y PRESENTED AT TRIAL. ALSO THE TWO WITNESSES WHO OBSERVED HIM ON THAT DAY , ALSO TESTIFIED THAT THE VICTIM AND MR . DAVIS WERE DRINKING BUT THAT MR. DAVIS WAS NOT INTOXICATED AND THE VICTIM WAS INTOXICATED , SEVERELY INTO XICATED BY THE END OF THE DAY. IN FACT, ONE OF THE WITNESS NESSES SAID THAT MR . DAVIS KNEW WHAT HE WAS DOING . IN ADDITION TO TH OSE TWO WITNESSES , THE STATE PRESENTED A JAIL HOUSE INFORMANT BY THE N AME OF SEAN -- O F SHANNON STEPHENS, WHO TESTIFIED THAT MR . DAVIS HAD ADMITTED TO HIM THAT HE WAS IN THE PR OCESS OF TA KING MONEY FROM THE VICTIM IN THE VICTIM'S ROOM, WHEN THE VICTIM WOKE UP AND A FATE HAD BROKEN OUT AND MR. DAVIS -- AND A FIGHT HAD BROKEN OUT, AND MR. DAVIS HAD KILLED THE VICTIM BECAUSE HE WOULDN'T GO DO WN, S O THAT WAS THE PICT URE THAT WAS PRESENTED AT THE TRI AL. NOW , THE UNDISCLOSED REPORTSAND THE LETTERS THAT WERE INTRODUCED AT THE EVIDENTIARY HEARING , PORT RAY A VERY DIFF ERENT PIC TURE THAN WHAT COULD HAVE BEEN PRESENTED AT THE TRIAL. FIRST OF ALL , AS TO THE PREMEDITATION EL EMENT , T HERE WERE STATEMENTS MADE BY THE TWO TESTIF YING WITN ESSES , KIMBERLY WRIGHT AND BE VERLY CASTLE, AS TO THE PREMEDITATION IS SU E , BUT THE INITIAL STATEMENTS TO LAW ENFORCEMENT, HAD NO SU CH STATEMENTS IN THEM. THEY DISCUSSED THE INTOXICATION OF THE VICTIM AND OF MR . DAVIS. THEY DISCUSSED THE FACT THAT MR. DAVIS HAD S PENT TIME WITH THE VICTIM THAT DAY AND THAT THEY HAD SEEN MR . DAVIS AT 10:30 OR ELE VEN P.M. ON THE NIGHT C RIME AND HE WAS INTOXICATED. TRIAL COUNSEL DID NOT HAVE THE BENEFIT OF THOSE STATEMENTS --
I WAS UNDER THE IMPRESSION THAT CASTLE WAS DIRECTLY IMPEACHED AT TRIAL BY SOME OF THESE STATEMENTS. IS THAT TOTA LLY INCORREC T?
SHE WAS IMPEAC HED A S TO SOME OF THE INTOXICATION . SHE WAS ABSOLUTELY NOT IMPEACHED AS TO THE PREMEDITATION.TRIAL COUN SEL DID NOT HAVE THE INITIAL RE PORT, AND THIS CAME OUT AT THE HEARING, THAT APPARE NTLY AT THE TIME OF MR. DAVIS'S TRIAL, THE SECOND DCA HAD ISSU ED AN OPINION IN M ILLER VER SUS STATE, WH ICH SAID T HAT , IF A STATEMENT WAS NONVERBATIM , IT DIDN'T NEED TO BE TURNED OVER TO DE FENSE COUNSEL.
DO WE HAVE ALL OF THE SEIN THIS RE CORD ? AT THE PRESENT TIME .
YES, Y OUR HON ORS . THE DEFENSE EXHI BITS, THE SPECIFIC REPORTS WERE DEFENSE EXHIBITS 5 , 6 , 7 , AND 8. THOSE WERE ALL PO LICE REPORTS AND/OR NOTES THAT POLICE OFFICERS TOOK ON T HEDAYS FOLL OWING THE CR IME, THE INITIAL DAY AND THEN THE DAYS FOLLOWING THE CRIME , THROUGHOUT THE MONT H OF JULY.
SO ON THAT ISSUE , YOU ARE ASSERTING THAT THE RECORD WILL REVEAL THAT , AT THE TRIAL , IS IT ONE WITNESS O R IS IT TWO WITNESSES THAT TESTIFY WITH REFE RENCE T O THE PREMEDITATION F A CTS , BUT THAT IN THE STATEMENT THAT THEY HAD BEGIN TO THE POLICE EARLIER , THAT THEY DID NOT INCLUDE ANY OF STATEMENTS LIKE THAT .
CORR ECT .
OKAY , AND THAT THOSE STATEMENTS GIVEN TO THE POLICE WERE NOT PRO VIDED TO THE DEFENSE .
CORRECT.
WHAT ABOUT THE INTOXICATION AS PECT?
CAN I ASK JUST ONE QUESTION TO FOLLOW UP ON THAT, TO WHAT EX TENT WAS IT DISCUSSED AT ANY DEPOSITIONS, PARTICULARLY DETECTIVE O'BRIEN'S DEPOSITION THAT WENT ON , WAS IT OR WAS IT NOT DISCUSSED PR IOR TO TRIAL , DURING A DEPOSITION , EPISODE ?
DETECT IVE O'BRIEN WAS D WE POSED -- WAS DEPOSED , A NDDURING HIS DEPOSITION, HE TOOK THE STATES ON THE D AYTHAT THEY FOUND THE VEHI CLE -- THE STATEMEN TS ON THE DAY THAT THEY FOUND THE VICTIM, AND HE TOOK STATEMENTS FROM WRIGHT, A WO MAN NAMED B ORNE AND SOUTH . BORNE AND SOUTH DID NOT TESTIFY. THIS IS HIS SYNOPSIS . MARK DAVIS SPOK E TO THE VICTIM, AND SHE SAW THEM DRINKING TOGETHER.THAT WAS HIS SY NOPSIS , SO HE NEVER MENT IONED THAT SHE DIDN'T SAY ANYTHING ABOUT THE PREMEDI TATION . THAT WAS NEVER REALLY PURSUED IN THE DEPOSI TION, B UT THAT WAS THE EXTENT OF WHAT HE REVEALED IN T HEDEPOSITION, ABOUT THE STATEMENT, SO --
DID HE REVEAL THAT STATEMENTS WERE TAKEN , A NDWAS THERE, WHAT ENTER PLAY WAS THERE, WITH REG ARD TO --
YES.
-- I HAVE STATEMENTS , AND WHAT DID COUNSEL DO WITH REGARD TO G ETTING T HOSESTATEMENTS?
HE SAID I TOOK THE STATEMENTS OF W RIGHT , SOUTH AND BORNE, AND THEN HE WENT THROUGH AND GAVE A SYNO PSIS OF WHAT THOSE STATEMENTS WERE. THAT WAS THE ISSUE AS FAR AS WHAT WAS PURS UED . DEFENSE COUNSEL NEVER DID ATTEMPT TO GET THE MILLERIZED PORTION OF THE STATEMENT, BE CAUSE APPARENTLY AT T HIS TIME T HIS IS NOT THE PR ACTICE DOWN IN PINELLAS COUNTY. DEFENSE ATTO RNEYS DIDN'T THINK THEY WERE ENTITLED TO THE MILLERIZED PORTIONS OF THE STATE MENT.
IS N'T THIS A TRUE BR ADY CLAIM THAT THE STATEMENTS WERE DISC LOSED . THEY DISCUSSED W E HAD STATEMENTS, BUT THIS IS NOT AN INEFFECTIVE ASSISTANCE AS OPPOSED TO A BRADY SITUATION?
QUITE FRAN KLY I DON'T THINK IT MATTERS. IF IT WASN'T BRADY -- -.
IS IT A DIFF ERENT STANDARD?
IT IS THE SAME STA NDARD , AS FAR AS BRADY GOES. IF THE SUPREME COURT SOME HOW OVERRULED THE BRADY CASE FROM 1963, THEN ABS OLUTELY IT WOULD BE AN INE FFECTIVE CLAIM AND THE SAME STANDARD THAT YOU WOULD BE L OOKING AT TO DETERMINE .
THE S E COND STANDARD, B UTTHE FIRST STANDARD WOULD BE DIFFERENT , BEC AUSE IF THERE WAS A CASE THAT EX ISTED THAT LED COUNSEL TO A REASON ABLE BELIEF THAT HE OR SHE WASN'T ENTITLED TO IT, THEN YOU WOULD HAVE TO PROVE THAT COUNSEL WASN'T FUNCTIONINGAT THE SIXTH AMENDMENT REQUIRES, SO YOU WOULD A GREE YOU GOT IT M UCH EAS IER , HURDLE, IF YOU CLAIM IT AS BRADY .
CORRECT, BUT I THINK IN STRICKLAND AND IN BRADY, THE ISSUE WAS CONFID ENCE O N H ERMIND.
THE SECON D PRONG , AND THE FIRST PRONG ISN'T AUTOMATICALLY ESTABLISHED , BECAUSE THE STATE , SOME THING EXISTED AND COUNSEL DIDN'T SEEK IT.
CORRECT.
BUT HOW WOULD YOU GET AROUND THAT?
I WOULD SAY THIS IS ABSOLUTELY BRADY. BRADY WAS A 1963 CASE. IT WAS LONG BEFORE THIS IDEA OF MILLER, AND BRADY DIDN'T EXEMPT DIFFERENT TY PES OF STATEMENTS OF. THEY SAID, IF SOMETHING I S EXCULPATORY, YOU TURN OVER , AND IN B ANKS VER SUS D RECKE , THE RECENT U NITED STA TES SUPREME COURT CASE , REITERATES THE BRADY HISTORYBY THE UN ITED STATES SUPREME COURT, AND SAYS THAT THIS I S NOT A SYSTEM WHERE THE PROSECUTOR MAY HIDE AND THE DEFENDANT MUST SEEK. IF THERE IS INFORMAT ION THAT IS EXCULPATORY , IT HAS TO BE TURNED OV ER.
SO YOU ARE SAYING, THEN , THAT IT MA KES YOUR BRADY , GOING BACK, THEN , YOU WOULD S AY THAT THE STATE, E VEN IF THEY TURNED OVER THE POLICE REPORTS, IF THEY, ON THEIR, IF THEY , CON SISTENT WITH THE SECOND DISTRI CT CASE , WERE EXCISEING PORTIONS , THAT THAT STILL, EVEN IF THEY DID IT IN GOOD FAITH , THA T THAT WOULD STILL BE A BRADY VIOLATION.
ABSOLUTELY. ABSOLUTELY.
WHAT ABOUT THE INTOXICATION?
AS TO THE INTOXICATION , WHAT HAPPEN ED AT TRIAL WAS THE, IF I MAY JUST ON THE PREMEDITATION, TO COMP OUND THE ERROR, AND I THIN K THIS IS REALLY A GIGLIO P ART OF THE CLAIM, THE STATE T OLD THE JU RY IN THE C LOSING ARGUMENT, IF T HERE HAD BEEN ANY EVIDENCE THAT MA RK DAVIS DIDN'T MAKE THESE STATEMENTS TO THESE WITNESSES , TRIAL COUNSEL WOULD HAVE IMPEA CHED THEM, WHICH TO M E , SE EMS LIKE IT IS A GIGLIO VIOLATION.SHE KNEW THAT THAT WAS NOT INCLUDED IN THE REPORT. SHE KNEW THAT THOSE REPO RTS HADN'T BEEN TURNED OVER , AND YET SHE CAN'T I ZED ON THE FACT THAT SHE WAS HIDING BEHIND THIS CASE AND SHE COULD MAKE THIS COM MENT TO THE JURY.
WHAT EVIDENCE IS THERE IN THE RECORD THAT THE PROSECUTOR KNEW THIS?
WELL , UNDER THE CASE LAW, THE PROSEC UTOR IS , KN OWS EXACTLY WHAT THE POLICE DEPARTMENT KNOWS, IN TERMS OF ALL OF THE BRADY CASE LAW , THE KY LE S , CA LL S VERSUS WHITLEY AND BAGL EY AND THOSE CASES.
I WANT TO CLAR IFY. ANOTHER KNOW LEDGE IS IMP UTEDTO THE PROSECUTOR.
YOUR KNOW LEDGE IS BASED ENTIRELY ON IMPTATION.
ABSO LUTELY .
BUT JUST FOLLOWING UP ON THIS FOR GILIO , THAT WOULDN'T EXTEND TO THE GIGLIO CLAIM -- THE GIGLIO , IF GIGLIO HAD TO KNOW OF THE EXISTENCE OF THE STATEMENT, IF WE CAN GO TO THE MORE FORGIVING STANDARD OF GIGLIO. WOULD YOU AGREE?
SHE HAD HER SYNO PSIS , WHERE SHE SAID THIS IS W HAT EVERYBODY IS GOING TO TESTIFY TO, AND IN HER SYNOPSIS IN TER MS OF R IK E , SHE DIDN'T HAVE ANYTHING ABOUT THE PREMEDITATION IN THAT SYNO PSIS , SO SHE WAS EITHER DOING THAT FROM HER REPORTS OR FROM HER CONVERSATION WITH RIKE, BUT YET SHE STOO D UP IN CLOSINGAND SAID THERE IS NOT HING TO SHOW THAT THESE STATEMENTS WEREN'T MADE. NOW, IN TERM S OF THE INTOXICATION, SOME OF THE INTOXICATION CAME OUT A T TRIAL. IN TERMS OF RIKE, SHE TESTIFIED THAT MR . DAVIS WAS DRINKING ON THE DAVE THE CRIME , AND SHE TESTI FIED THAT SHE DIDN'T THINK HE WAS DRUNK. AT 4: 30 O R FIVE O'CLOCK IN THE EVENING, SHE SAYS HE DROVE HER TO GET HER BOYFRIEND 'S CAR AND HE HAD NO PROBLEMS DRIVING. HE THEN ATE DINNER WITH THEM . AT 11 :30 OR MIDNIGHT, SHE SAW HIM AGAIN AND HE WAS NOT INTOXICATED. THE ONLY THING SHE IS IMPEACHED WITH IS THAT SHE SAW MR. DAVIS GO TO A BAR THAT DAY. THAT WAS THE ONL Y THING TRIAL COUNSEL IMPEACHED HER WITH. AS TO CAS TLE, SHE SAID THAT SHE SAW THE VICTIM AND MR . DAVIS ALL DAY LONG WITH A CAN OF BEER IN THEIR HA NDS , AND THAT THE VICTIM WAS VERY INTOXICATED, BUT MR . DAVIS WAS NOT DRUNK AT 8:00 P .M.. HE KNEW WHAT HE WAS DOI NG. AND AT 1 1:00 P.M. T O MIDNIGHT, HE CA ME TO T HEDOOR, AND HE WAS S O BER . NOW , IN IMPEACHMENT , THE DEFENSE ATTORNEY SAID, WELL , DIDN'T YOU SAY THAT HE GOT DRUNKER AND DRUNKER AS THE DAY WENT ON AND THAT AT 10:30 P.M. , BO TH OF THEM WERE DRUNK, AND SHE SAID Y ES, BUT I WAS MAKING THAT ASSUMPTION ONLY BE CAUSE I SAW HIM WITH A CAN OF BEER IN HIS HAND , SO SHE EXPLAINS IT, AND SHE TRIES TO REHABILITATE HERSELF , AND THIS SORT OF COMES INTO ISSUE WITH KYLES , WHEN THEY SAY IF THE DEFE NSE ATT ORNEY TRIES TO IMPEACH THEM AND THE STATE OR WITNESS REHABILITATES THEIR TESTIMONY, IT IS STILL A PROBLEM , EVEN IF THERE WAS SOME IMPEACHMENT . NOW, IF YOU LOOK AT T HEREPORTS , SPECIF ICALLY IN CASTLE'S, THE STATE ATTORNEY SYNOPSIS, WHICH IS DEFENSE EXHIBIT 1 2 , SHE TELLS THE PROSECUTOR THAT , AT 6:30 P.M., SHE SEES MR. DAVIS COMING BACK FROM THE B AR. HIS EYES WERE GLA SSY , GL ARED , HE WAS INTOXI CATED . HE IS STUMBL ING. SHE GIVES THIS WH OLE THING , WHICH FIRST OF ALL THIS C ONFLIBTS WITH HER DAUGHTER'S TESTIMONY THAT, AT 6:30 P .M. HE WAS WITH THEM E ATING DINNER AND DRIVING A CAR, S O THIS WOULD HAVE BEEN A G REAT CONTRADICTION FOR TRIALCOUNSEL TO PO INT OUT, I N TERMS OF THEIR TESTI MONY , AND THE OTHER STATES THAT ARE MADE ARE SIMILAR , YOU KNOW , HE WAS DRUNK AT 10:30. BOTH OF THEM SAY WHEN H E CAME TO THEIR R OOMS BET WEEN ELEVEN AND MIDNIGHT , HE WAS INTOXICATED, AND AT THE TRIAL THEY DENIED THAT, SO AS TO THE INTOXICATION, THAT IS SORT OF THE ISSU E. NOW, IN ROME AND , THIS -- I N ROME AND , THIS COURT SAID THEISH -- IN ROMAN , THIS COURT SAID THE ISSUE OF INTOXICATION IS AN ISSUE AT TRIAL AND IN THAT CASE THEY PUT ON ALLAY WITNESS AND EXPERTS TO TESTIFY AS TO INTOXICATION AND THEY PRESENTED SEVEN WITNESSES TO SAY THAT HE WAS NOT DRUNK. IT WAS DISC LOSED IN A REPORT THAT ONE WITNESS MADE A STATEMENT EARLIER THAT HE WAS DRUNK , AND THIS WAS JUST ONE WITNESS , AND THIS COURT ORDERED A NEW TRIAL AND SAID EVEN THOUGH HE WAS IMPEACHED SOMEWHAT, THE STATE RE BILL -- REHABILITATED HIM AND WE FIND IT TO BE MATERIAL. THERE WAS A LOT GOING ON, AND W E FO UND IN MR . DAVIS'S CASE AS TO INTOXICA TION. AS TO SHAN NON STEPHENS , SHANNON STEPHENS WAS SPECIFICALLY ASKED HAS ANYONE OFFERED YOU OR DO YOU HAVE ANY EXP ECTATION OF L EEB LENIENCY AND HE SAID -- LENIENCY, AND HE SAID NO. IT WASN'T REBUTTED.HE WAS CROSS-EXAMIN ED. HE SAID THAT HE HAD A CONVERSATION WITH THE STATE BEFORE HE TESTIFIED , WHERE HE ASKED THEM CAN YOU GET MY GAIN TIME REIN STATED . I AM GO ING TO LOSE ALL M Y GAIN TIME. IT WILL BE EQUIVALENT OF A COUPLE OF YEARS OF M Y SENTENCE, AND THEY TOLD H IMWE WILL SEE WHAT WE CAN DO. FRANKLY UNDER BANKS , THISWOULD BE M ORE IMPORT ANT FOR THE DEFENSE ATTORNEY TO KNOW THIS, BECAU SE IT IS NOT A SOLID DEAL. IT IS SORT OF LIK E WE WILL SEE WHAT WE CAN DO, AFTER YOU TESTIFY. IT GIVES HIM MORE OF AN INCENTIVE TO CO LOR HIS TESTIMONY AND TO SAY THING THAT IS ARE MORE FAVORABLEFOR THE STATE THEN IT WOULD HAVE IF THEY HAD JUST T OLD HIM, YES, WE ARE GOI NG TO D O THIS AND THEY HAD REVEALED THAT TO THE DEFENSE COUNSEL. NONE OF THIS WAS REVE ALED TO DEFENSE COUNSEL THAT THIS WAS AN ISSUE , AND THOS E ARE SORT OF THE PRIM ARY THINGS OF THE BRADY CLAIM. I SEE MY TIME HAS EXPIRED . I WOULD LIKE TO RESERVE THEREST OF MY TIME FOR REBUTTAL.
MAY IT PLEASE THE COURT. I AM CANDACE SABE LLA , REPRESENTING THE STATE. I JUST S O HAPPEN TO HAVE A COPY HERE , OF THE TA PED INTERVIEW WITH KIMBERLY R YK , WHICH TRIAL COUNSEL TESTIFIED TED EVIDENTIARY HEARING AT 62 4 THAT HE HAD IT IN THE DEPOSITION , AND ON PAGE 2 SHE SAYS WHAT CAN YOU TELL ME ABOUT ANY STATEMENTS THAT MA RK MIGHT HAVE MADEABOUT THE VICTIM. HE SAID THAT ORVI LLE WAS A QUEER AND HE WAS GOING T O PLAY HIM FOR HIS M O NEY, S O COUNSEL TESTIFIED THAT HE HAD THESE TRANSCRI BED STATEMENTS. THE ONLY THING THEY ARE ALLEGING HE DIDN'T HAVE WAS THE POLICE OFFICER'S SUM MARY OF THESE TRANSCRIBED STATEMENTS. THE POLICE OFFICER WAS DEPOSED.HE WAS ASKED ABOUT THESTATEMENTS. THEY HAD THE VERBATIM STATEMENTS. THESE WITNESSES WERE DEPOSED. THEY WERE IMPEACHED AT TRIAL. THERE SIM PLY ISN'T ANYMORE INFORMATION THAT HE SHOULD HAVE HAD THAT HE DIDN'T HAVE.
THE DISTI NCTION THAT -- I AM SORRY.
JUSTICE LE WIS .
I AM SORE I THE DISTINCTION THAT YOU ARE MAKING IS THAT THERE WERE THESE RECO RDED TA PES. -- I AM SORRY. THE DISTINCTION THAT YOU ARE MAKING IS THAT T HERE WERE THESE RECORDED TAPES. THE TAPES WERE TURNED OV ER. THE SUMMARY OF THE TAPES , IS THAT WHAT --
THAT IS THE ALLE GATION. I SUBM IT TO THIS COURT THAT THEY HAVEN'T RE ALLY PRO VED THAT THEY DIDN'T GET THIS INFOR MATION BECAUSE THERE WAS NEVER A QUESTION OF COUNSEL, HAVE YOU EVER SEEN THIS, BUT THE FA CT IS PRIOR TO TRIAL, DEFENSE KUHNS HE WILL WHITE -- DEFENSE COUNSEL WHITE MADE A MOTION CONCERNING MI LLER . HE OBJECTED TO THE MIL LER STANDARD AND WA NTED UNMILLERIZED POLICE REPO RTS AND THE TRIAL COURT OVERRULED HIM, SO W E PROBABLY CAN AS SUME THAT T HEREPORT WAS MILLER IZED. THE PROS ECUTOR AT EVIDENTIARY HEARING , CONCEDED THAT THIS WAS THEIR STANDARD PRACTICE AT THETIME, ALTHOU GH HE WAS NOT THE PROSECUTOR AT THE TIME IN 198 7. SO, BUT, THE ONLY THING THAT MILLER ALLOWED THEM TO DO WAS TO DE LETE PORTIONS THAT WERE SUMMAR IZING VERB ATIM STATEMENTS.
CHIEF JUSTICE: JUSTICE ANSTEAD.
SO DID THE STATE PRESENTEVIDENCE AT THE POSTCONVICTION EVID ENTIARY HEARING BELOW, THAT THEY DID AFFIRMATIVELY PROVIDE ALL OF THESE STATEMENTS TO THE DEFENSE?
THE TRIAL COUNSEL WHITE TESTIFIED , THAT HE HAD THE TRANSSCRIBED STATEMENTS , THAT HE HAD THE TAPES O F , THAT HE HAD THE DEP OSITIONSWHERE THE DETE CTIVE W ASQUESTIONED ABOUT THEM. THE SPECIFIC POLICE REP ORTS, NO.
SO HE TESTIFIED THAT HE HAD ALL OF THIS MATERIAL AT THE HEARING BELOW.
HE TESTIFIED THAT HE HAD ALL OF THE MAT ERIAL CONTAINING THEIR STATEMENTS AND THAT THE TRIAL COURT MADE A SPEC IFIC FINDING THAT HE HAD IT.
AND DID THE STATE PUT ON ANY EVIDENCE FROM THE ASSISTANT STATE ATTORNEY OR FROM THE POLICE , THAT THEY HAD PROV IDED THESE STATEMENTS TO DEFENSE COUNSEL?
NOT THE SUMMARIZED STATEMENTS BUT THE VERBATIM STATEMENTS, YES.
NEFERDZ -- IN OTHER WO RDS, WHO TESTIFIED AS TO THAT?
WHITE TESTIFIED THAT HE HAD THE TRANSS CRIBED STATEMENTS. EXACTLY.
YOU TOLD ME ABOUT WHITE . NOW , HOLD ON. YOU ARE WAY AHEAD OF ME. LET'S JUST P AUSE FOR A MINUTE.
I AM SORRY.
DID THE STATE PUT ON A NYEVIDENCE FROM THE ASSISTANT STATE ATTORNEY OR THE POLICE , THAT THESE STATEMENTS WERE PROVIDED TO DEFENSE COUNSEL?
THE STATE DID NOT PUT O N ANY EVIDENCE FROM THE STATE ATTORNEYS OFF ICE OR THE POLICE THAT THESE STATEMENT WERE PROVIDED TO DEFENSE COUNSEL.
SO YOU ARE RE LYING ON THE TESTIMONY OF DEFENSE COUNSEL , BUT YOU SAY THAT TESTIMONY WAS AFFIRMATIVELY THAT HE GOT ALL OF THIS MATE RIAL , AND THAT HE HAD IT ALL , INCLUDING THE LACK OF PREMEDITATION IN THE EARLIER STATEMENTS, THE TESTIMONY ABOUT INTOXICATION , AND THAT HE HAD ALL OF THAT , IS THAT --
YOUR HONOR , I AM RELYING ON WHITE BUT I AM A LSO RELYING ON THE RECORD. THE RECORD SHOWS --
LE T'S ST OP WITH WHITE FOR A MI NUTE.
O KAY.
I THINK YOU ARE TE LLING US THAT WHITE SAID HE HAD ALL THIS STUFF.
WHITE SAID --
ALL RIGHT. WAS HE ASKED , THEN , TO EXPLAIN, IF HE HAD IT ALL , WHY HE DIDN'T USE IT?
TO THE CONTRARY , I BELIEVE WHITE DID USE IT.
WELL , SHE HAS PO INTED O UT THAT, ON THE PREMEDITATION , THAT THERE WAS TESTIMONY AT TRIAL , FROM ONE OR TWO OF THESE WITNESSES , THAT THAT ACTUALLY HAD SPEC IFIC THINGS ABOUT HIM SAYING WHAT HE WASGOING TO DO, BUT THAT IN THE STATEMENTS THAT WERE GIVEN , NONE OF THAT WAS IN THE RE, AND SO DID WHITE USE THAT? DID HE IMPEACH THAT WITNESS WITH THE AB SENCE OF A NYSTATEMENTS ABOUT THAT , WHEN SHE GAVE A STATEMENT TO THE POLICE?
THAT IS THE POINT I AM TRYING TO MAKE, YOUR HONOR. THAT IS A MISREPRESENTATION OF THE RECORD. THE RECORD SPEC IFICALLY SHOWS THAT THE TRANSSCRIBED STATEMENTS THAT WEREPROVIDED TO COUNSEL, THAT COUNSEL SAID HE HAD , THAT WERE US ED IN THE DEPOSITIONS, THAT HE HAD THIS I N FORMATION , AND THAT IN THAT INF ORMATION , THEY MADE THE SAME STATEMENTS.
OK AY. THEN IN OTHER WOR DS, THE STATE'S POSITION IS THAT , IN THE STATEMENTS , THAT THESE WITNESSES MADE , TO THE POLICE , ALL RIGHT , THEY DID SAY THE SAME THING THAT THEY SAID AT TRIAL. IS THAT CORRECT?
CORREC T.
NOW, MO VING FROM THERE TO THE INTOXICATION .
RIGHT.
IS THAT , ALSO , THE STATE'S POSITION, THAT IS THAT THEIR TESTIMON Y AT TRIAL , WAS THE SAME AS THE TESTIMONY THEY GAV E IN T HESTATEMENTS?
NO. IT IS NOT.
IT IS NOT.
AT TRIAL , B OTH THE WITNESSES SAID THAT THEY DID NOT BELIEVE THAT HE WAS INTOXICATED.
BUT IN THEIR STATEMENTS , THEY SAID THAT --
THEY SAID THAT THEY HAD -- THAT HE HAD BEEN DRINKING.
THAT HE WAS INTOXICATED. NOW, WAS DEFENSE COUNSEL ASKED IF HE HAD THOSE STATEMENTS, W HERE THEY MAKE RATHER ELABO RATE STATEMENTS ABOUT HIS INTOXICATION , WHY HE DIDN'T USE THAT MATERIAL,THEN, TO IMPEACH THOSE WIT SNEZ.
AGAIN, YOUR HO NOR , THAT IS THE POINT. HE DID USE THOSE STATEMENTS TO --
SO HE DID CONFRONT THEM WITH THOSE STATEMENTS AND SAID YOU GAVE A PREVIOUS STATEMENT TO THE POLICE, AND HERE IS WHAT YOU SAID, WHICH DIRECTLY CONTRADI CTS WHAT YOU ARE SAYING NO W.
ABSOLUTELY , AND I CAN POINT YOUR HONOR TO THE RECORD EXACTLY WHERE HE IMPEACHED THESE WITNESSES WITH THAT INFO RMATION , AND , AGAIN , THE TRIAL COURT MADE A SPECIFIC FA CTUAL FI NDING THAT HE DID . AT THE ORIGINAL TRIAL RECORD 939 , 9 52 , 937-TO-984.
SO HE SPECIFICALLY USED THOSE STATEMENTS TO IMPEACH THESE WITNESSES. WHAT ABOUT THE , IS I T A JAILHOUSE INFORMANT OR WHATEVER, THAT WE HAVE HERE , SAYING THAT HE HAD NO PROMISES OF ANYTHING FROM THE STATE?
THE JAIL HOUSE INFORMANT--
WAS THAT PROVIDED TO T HEDEFENSE?
CORRECT. IT WAS PROVIDED.
IN OTHER WORDS, THE DEFENSE WAS TOLD THAT THE STATE HAD TOLD HIM , THATTHEY WOULD TRY TO DO SOMETHING ABOUT HIS G AIN TIME?
NO , AND THAT IS NOT WHAT THE RECORD SHOW S AT ALL. THAT IS NOT WHAT HAPPENED. SHANNON STEP HENS TESTIFIED THAT HE NEVER ASKED FOR A DEAL, HE NEVER GOT A DEAL, THAT NO PROMISES WERE MADE TO HIM. HIS LAWYER TESTIFIED NO PROMISES WERE MADE TO HIM , AND THE ASSI STANT S TATEATTORNEY WHO WAS HAND LING THE CASE N O PROM ISES W ERE MADE TO HIM. HOWEVER, WHEN HE TESTIFIED AT TRIAL, DEFENSE COUNSEL DID BRING OUT THAT HE W ASHOPING THAT , FOR SOMETHING , THAT HE WAS HOPING HE WOULD GET THE LOWER E ND OF THE SENTENCING GUIDELINE SC ALE , AND THAT THIS WAS ARGU ED TO THE JURY, AND THE TRIAL COURT MADE A --
THE SAME THING THAT T HEDEFENSE IS TA LKING ABOUT NOW , ABOUT HIM SAYING THAT I HADA SE RIOUS PROBLEM ABOUT GAIN TIME, AND THAT THE STATE SAID THEY WOULD SEE WHAT THEY COULD DO, THAT WAS BROUGHT OUT AT TRIAL.
THAT DID NOT HAP PEN. THAT DID NOT HAPP EN. THE STATE DID - -
THERE IS NO EVIDEN CE IN THE RECORD THAT HE SAID ANYTHING LIKE THAT.
THE ONLY THING THAT THERE IS EVIDENCE IN THE RECORD ABOUT THE GAIN TIME, I S A FTER THE TRIAL , A FTER EVERYTHING WAS OVER , THE ASSISTANT STATE ATTORNEY WROTE A LETT ER ON HIS BEHA LF , SAYING THAT HE HAD TESTIFIED FAVORABLY IN THIS TRIAL ANDTHAT THEY COULD HE LP HIM WITH THIS GAIN TIME , T HAT WOULD BE GOOD, BUT THERE WASNOT A PROMISE MADE TO DO IT THE.IT WAS NOT BA SED ON THAT , AND IT WAS NEVER RAISED TO THE STATE ATTORNEY AT ALL. IT WAS JUST SOMETHING THAT HE SUBSEQUENTLY DID.
OKAY. ALL RIGHT.WHAT WE REALLY HAVE HERE IS A RECONC ILIATION , THEN , OF THE REPRESENTATIONS MADE BY YOUR OPPONENT AS OP POSED --
ABSOLU TELY . ABSOLUTELY.
ALL RI GHT.WOULD YOU ADDRESS, ALTH OUGH YOUR OPPONENT DIDN'T AD DRESS IT DU RING HER DIRECT ARGUMENT, THE INEFFECTIVE NESS OF COUNSEL CLAI M, WITH REFERENCE TO THE PENALTY PHASE HERE.
ABSOLUTELY .
PARTICULARLY I AM CONCERNED ABOUT THE , APPARENTLY THE , THE FACT THAT THE DEFENSE COUNSEL SPENT A LIMITED AM OUNT OF TIME INVESTIG ATING MITIGATION , AS WAS DEMONSTRATED BY EITHER HIS TIME RECORDS OR SOMETHING LIKE THAT . AND COMPARED TO THE EVIDENCE THAT WAS PUT ON AT THE POSTCONVICTION HEARIN G, IN TERMS OF THE AVAILABILITY OF MITIGATION. SO WOULD YOU --
THE HURD LE THAT DAVIS NEEDS TO GET OVER , IS HE H ASTO SHOW THAT THERE WAS INFORMATION THAT COUNSEL FAILED TO OBTAIN IN HIS INVESTIGATION, THAT WOULD HAVE --
IF I UNDERSTAND IT CORRECTLY , HE CA LLED T HEDEFENDANT TO TESTIFY AT THE PENALTY PHASE, AND T HAT WAS IT?
WELL , THAT IS WHAT HAPPENED FINALLY , BUT THAT IS NOT --
I REALIZE .
THAT IS NOT THE INFORMATION HE HAD TO BEGIN WITH.
THAT IS WHAT HE PUT ON , IS THAT CORRECT?
CORRECT. BUT FIRST OF ALL , PR IOR T O TRIAL HE HAD A ME NTAL HEA LTH EXPERT WHO EVALU ATED THE DEFENDANT.
HOW LONG BEFORE TRIAL?
I DON'T KN OW HOW LONG THE INITIAL EVALUATION WAS. THE REPORT WAS GI VEN TO HIM ON JA NUARY 12, AND THE TRIAL STARTED JANUARY 1 3.
WAS IT LESS THAN A W EEK BEFORE TRIAL THAT HE HAD THE MENTAL HEALTH --
THAT IS VERY POSSIBLE,YOUR HONOR. I CAN'T REPR ESENT THE SPECIFIC DA TE.
WAS THERE SOME INFORMATION FROM THAT?
NO BUT YOU CAN CERTAINLY SEE THAT THERE WOULD BE A REASONABLE STRATEGY FOR THAT , BECAUSE YOU WOULDN'T WANT THIS INFORM ATION TO BE IN THE HAND S OF THE STATE , S O AS MUCH AS YOU CAN LI MIT --
IF IT I S A CONFIDENTIAL , MENTAL HEALTH E XPERT , THEN THAT TAKES CARE OF THAT ISSUE , DOES IT NOT?
IN THE EV ENT YOU A REGOING TO USE IT, THEN THERE IS GOING TO BE ANOTHERSITUATION ALL TOGETHER , SO I F HE WAS GOING TO USE IT , HE WOULD HAVE HAD TO GIVE ITTO THE STATE .
CHIEF JUST ICE: JUSTICE CANTERO HAS A QUESTI ON.
WHAT WERE THE DEFENDANT'S DICTATES TO COUNSEL REGARDING MI TIGATION THAT WAS TO BE PRESENTED?
WELL, YOUR HONOR, AND REALLY I WANTED TO PUT THIS CASE IN CONTEXT, BE CAUSE ALTHOUGH OPPO SING COUNSEL DISAGREES WITH THIS , DAVIS WAS APPO INTED TO ACT AS CO-COUNSEL. THIS COURT FO UND SO ON DIRECT AP PEAL . THE TRIAL COURT , WHO WAS ALSO THE TRIAL JU DGE , WAS ALSO THE POSTCONVICTION JUDGE. HE ALSO FOUND SO, AND IN DAVIS'S PENALTY PH ASE TESTIMONY, HE SPECIFICALLY ASKED , YOU WERE CO-COUNSEL IN THIS CA SE, CORRECT? AND FROM TIME TO TIME YOU ASSISTED ME IN THE PRESENTATION BY DOING RESEARCH, MUCH L ATHING I DEAS AND TACTICS AS TO HOW WE SHOULD PROCEED. BASED ON THIS, THE LAWYER HAD, WHO HAD JUST BEEN APPOINTED A F EW MON THS PRIOR , ANOTHER PUBLIC DEFENDER H ADHANDLED IT, HAD DONE THE BACKGROUND INVESTIGATION, HAD DONE THE DEPOSITION S. WHITE ALSO DID DEPOSIT IONS , HIMSELF, AND HE ALSO MADE INQUIRY OF DAVIS'S MOTHER AND FAMILY. BASED ON THE INFORMATIONTHAT HE HAD , HE DETERMINED THAT THE MOTHER WOULD BE THE BEST PERSON TO BRING OUT T HEFACT THAT HE HAD A DEPRIVED CHILDHOOD , THAT HIS F ATHER WAS AN ALCOHOLIC AND TH AT HE WAS INTO D R UGS AND ALCOHOL. THE TRIAL COURT , BEC AUSE SHE TESTIFIED AT THE HEARING, AGREED THAT SHE WOULD HAVE BEEN THE MOST SYMPATHETIC WITNESS, AND THAT THAT WAS A VERY REASONABLE STR ATEGY . WHEN SHE CAME DO WN, S HE, THEN, GOT U P SET CONCERNING THAT HER TESTIMONY WAS G OING TO BE THE THING THAT GOT HER SON THE DEATH PENALTY. WHITE TOLD DAVIS ABOUT THIS AND DAVIS'S DEC ISION WAS NOT TO PUT HIS MO THER ON. WHITE SAID HE DID NOT DISAGREE WITH THAT, AND THAT THEY TOOK THAT INFORMATION, AND THEY WERE ABLE TO MAKE HAY OUT OF IT , AND AS THE TRIAL COURT FOUND, HE MADE A VERY EFFECT IVE ARGUMENT AS TO THE FACT THAT HE WANT ED TO PROTECT HIS MOTHER A NDTHAT HE WAS CONC ERNED FOR HER AND YOU KNOW, WE COULD HAVE PUT HER ON AND SHE WOULD HAVE BEEN VERY SYMPATHETIC BECAUSE SHECOULD HAVE TOLD YOU ALL OF THESE THINGS ABOUT HIS YOUTH BECAUSE SHE WOULD HAVE BEEN VERY SIMPTHREAT IB, B UT HE IS NOT GOIN G TO P LAY ON YOU R OHM OCE ANS BECAUSE HE -- ON YOUR EMOTIONS BECAUS E HE CARES ABOUT HIS MOTHER , AND THAT IS ALL IN THE BEGINNI NG.
WAS THERE SOME RECORD THAT DAVIS TOLD HIS COUNSEL THAT HE WANTED THE DEATH PENALTY THAT, ELEVEN YEARSON DEATH ROW WAS EN OUGH F ORHIM?
JO HN WHITE TESTIFIED AT THE EVIDENTIARY HEARING THAT THAT WAS THE DEFENDANT'SPOSITION, THAT BASICALLY THE DEFENDANT HAD BEEN INCARCERATED SI NCE HE WAS 13 AND HE REALLY FELT LIKE ANOTHER TEN OR ELEVEN YEARS ON DEATH ROW WAS SUFFICIENT FOR HIM.
WELL , ON THE MENTAL HEALTH EX PERT , WHAT WAS COUNSEL'S POSITION? DID DAVIS TELL HIM NOT TO PUT ON MENTAL HEALTH MITIGATION?
NO. THEY HAD DR . DIFFENDALE EXAMINE THE DEFENDANT. HE DID SE VERAL INTERVIEWS AND DID TESTS.
BUT THE INTERVIE WS AND EVALUATION OCCURRED ONLY AWEEK BEFORE THE PEN ALTYPHASE?
WELL , YOUR HONOR , THERE IS - -
JUST --
THE REP ORT WAS IS SUED T O HIM THE DAY BEFORE THE TRIAL , OKAY, BUT THERE WAS --
BEFORE THE TRIAL.
BE FORE THE TRIAL. THE GUILT PHASE.
THE GUILT PHA SE. AND THE REASON WAS THAT PART OF WHY HE WAS HAVING DR . DI. FFEND -- DR . DIFFENDALE EXAMINE HIM BECAUSE THE VICTIM HAD MADE OVERTURES AND ATTACKED HIM WITH A KNIFE AND AS A RESULT OFTHIS, HE KIND OF WENT CRAZY , SO THEY WERE BRINGING DR . DIFFENDALE TO SU PPORT THAT AND UNFORT UNATE NAI NA TALIE HIS REPORT -- UNFORTUNATELY HIS REPORT WENT F URTHER THAN THAT AND SAID IF A PERSON CAME ON TO HIM , THAT H E ADMITTED HE WOULD GO PASTTHE POINT WHERE TH EY WERE STOPPED AND THAT HE WOULD JUST KEEP GOING. HE WAS A VERY VI OLENT PERS ON, ALTHOUGH HE IS CLAIM ED TO HAVE BEEN INTOXICATED , THERE WAS INFORMATION IN THE REPORT THAT HIS INTOXICATION , FOR HIM , BECAU SE HE WAS USED TO DRIN KING ALC OHOL , IT J UST KIND OF SPEEDED HIM UP A NDGAVE HIM MORE ENE RGY , SO THERE REALLY WASN'T A WHOLE LOT BENEFICI AL IN THE REPORT . YOU KNOW , THERE WAS INFORMATION THAT HE HAD BEEN INCARCERA TED.THERE WAS INFORMATION ABOUT HIS FAMILY. HE DE NIED ANY PRIOR SEXUA L ABUSE TO THE EXPERT , SO WHITE AND DAVIS , TOGE THER, MADE THE DECISION NOT TO PUT HIM ON. IT WAS A REASONABLE , INFORMED STRATEGY , AND ACCORDINGLY IT JUST SI MPLY CAN'T BE TOUCHED.
COULD WE JUST EXP LORE JUST A LITTLE BIT, I THINK YOUR OPPOSITION PL ACES G REAT EMPHASIS ON THE TIMING , WHEN THE WORK STARTED AND HOW LIMITED IT WAS, A NDCERTAINLY AS W E SEE THE CAPITAL CASES BEING LITIGATED AND THAT , THE ART OF THAT , BEING PERFECTED AND , REALLY, PROGRESSING OVER T HEYEARS.
CORRECT.
IS THERE ANY , ANY THING THAT THE INVESTIGATION WOULD HAVE TOUCHED U P ON THAT W ASBROUGHT OUT AT THE COLLATERAL HEARING , FROM A QUALITATIVE STAND POINT ? CERTAINLY WE CAN TALK A BOUTTHE SAME THINGS OVER AND OVER, BUT HE LP ME AND CANDIDLY HELP ME W ITH REGA RD TO THAT.
THAT IS A GO OD POINT , YOUR HONOR , FOR TWO REASONS. ONE IS, NO , THERE IS NOT , JUST A COMPL ET E REPETITI ON OF EVERYTHING THAT HE ALREADY KNEW. HE KNEW ABOUT HIS FAMILY BACKGROUND. HE KNEW ABOUT THE DR UGS A NDALCOHOL. THE ONLY THING THAT THEY PRESENTED THAT WAS DIFF ERENT WAS DR. MAYO R'S TESTIMONY AND DR. MAR ROW - AND DR . MAKE HER FOUND THAT HE WAS HOME -- -AND DO CTOR MAY HER FOUND THAT HE WAS HOMOPHOBIC A NDHE DID NOT FIND HIM TO BE CREDIBLE AND TO THE CONTRARY THE DOCTOR THAT EVAL UATED D R . DIFFENDALE'S REPORT , HE FOUND IT A CRED IBLE REPORT AND THAT IS WHAT HE RELIED ON. THIS WAS IN 19 86 WHEN THEY WERE PREPARING FOR THIS, AND AS COUNSEL TESTIFIED AT THE EVIDENTIARY HEARING, THINGS WERE COMP LETELY DIFFE RENT BACK IN THE MID'80 s. YOU WOULD N EVER REP RESENT A CAPITAL CASE IN THE YEAR 2000 THAT YOU WOULD HAVE THEN, BUT THE FACT REMA INS THAT THERE IS NOT HING THAT THEY HAVE PRESENTED OR C OULDHAVE THAT COUNSEL DID NOT KNOW AND DID NOT MAKE A DETERMINATION ON HOW T O HANDLE.
YOU REALIZE AS W E ALL DO , THAT THE EMPH ASIS HAS B EEN ON MAKING SURE THAT THERE I S A SUFFICIENT INVESTIGATION.
CORRECT.
AND HERE, THEY SEEM T O BE SUGGESTING THAT THIS TIME , IN AND OF IT SELF , SHOWS THAT , REALLY, DIDN'T DO AN INVESTIGATION.
WELL , A GAIN , THE , HE WAS PREVIOUSLY REPR ESENTED BY ANOTHER LAWYER. THAT LAWYER HAD DONE THE DEPOSITIONS AND HAD DONE THE INVESTIGATION.
SO NOW OUR DIFFIC ULTY IS BOTH WITH THE BR AD Y I SSUEAND WITH THIS ISSUE AS W ELL,THEN, WOULD BE YOUR VIEW , BECAUSE BEFORE, I ME AN, M UCH OF THE INFORMATION WAS GI VE N TO PRIOR COUNSEL.
CORRECT.
THAT IS AR GUED ABOUT A BRADY PROBLEM AS WELL , CORRECT?
CORRECT.
SO HERE THIS OVER LAW THIS OVERLAY OF A SUBSTITUTE COUNSEL KIND OF COMPLICA TES BOTH ISSUES JUST A LI TTLE BIT THE N.
IT ONLY COMPLICATES IN THE ASSERTION THAT, WHAT WHITE DID AND HOW MANY HO URS WHITE SPENT, BUT WHAT WHITE SAID IS I HAD ALL THIS INFORMATION AND I STUDIED IT AND I HAD M Y CASE, AND IF I HAD NEEDED MORE TIME , I WOULD HAVE ASKED FOR MORE TIME, AND IF I HAD NEEDED AN INVESTIGATOR, I WOULD H AVE ASKED FOR AN INVESTIGATOR , AND IF I HAD THO UGHT THEREWAS A REASON TO FILE MOTIONS , I WOULD HAVE FILED MOTIONS , BUT BASED UPON EVERYTHING THAT HE HAD, HE FELT COMFORTABLE GOING TO TRIAL , AND THE BOTTOM LINE IS THEY HAVEN'T SHOWN ANYT HING TO THE CONTRARY. I WOULD ALSO LI KE TO POINT OUT WITH REGARD TO THE JAILHOUSE INFORMANTS, THAT I AM NOT REALLY CONFIDENT I KNOW WHAT THE CLAIM IS. THEY HAD TH REE JAIL HOUSE INFORMANTS, TWO OF WHICH DIDN'T TESTIFY AT T RIAL AND REALLY DIDN'T PROV IDE ANY INFORMATION TO THE STATE, BUT THE FACT IS THE RECORD SHOWS THAT COUNSEL KNEW ABOUT BOTH OF THESE. WHITE HIMSELF , TOOK A DEPOSITION OF KEN NETH GARDENER AND D URING THE KENNETH GARDENER DEPOSITION, HE MENTIONS THE FACT THAT HE AND GARY DO LAN HAD DISCUSSED THE DEFENDANT'S CASE AND THAT DOLAN KNEW AND HAD INFORMATION ABOUT IT, TOORBS SO CLEARLY HE WAS ON NOTICE THAT THESE PE OPLE EXIS TED. DOLAN WAS LI STED AS A WITNESS, A POTE NTIAL WITNESS AT TRIAL, AND THERE REALLY WAS NOTHING THAT THEY DIDN'T ALREADY HAVE. FURTHERMORE , FOR THERE TO BE A BRADY CL AIM , THEY HAVE GOT TO SHOW IT IS EXCULPATORY , AND CLEARLY THERE IS NO INFORMATION THAT THESE PEOPLE HAD THAT WAS E ITHER EXCULPATORY OR COULD BE USED FOR IMPEACHMENT , SO THERE IS SIM PLY NO VI OLATION. WITH THAT, THANK YOU.
ONE OTHER THING.
YES.
IF YOU FIN ISHED RESPONDING TO THE MENTAL HEALTH A S PECT , I WOULD LIKE TO TOUCH UPON WHETHER WE HAVE NOW FLESHED OUT THIS ISSUE WITH REGARD TO JUVENILE CONVICTIONS, TO ADULT CONV ICTIONS , GOING THROUGH AND LOOKING AT THE DOCUMENTS, I PERCEIVE I T A NDPLEASE I WOULD ASK, ALSO , MS. McDERMOTT TO CORRECT ME IF I AM WRONG WITH REGARD T O THAT, BUT IT APP EARS FROM LOOKING AT THOSE OUT-OF-STATE RECORDS THAT THERE WAS AN ADULT CONVICTION, BUT THEN WHEN IT CAME TIME WHEN HE WAS PLACE D ON PROBATION , THAT WAS SUPERVISED STILL BY THE JUVENILE AUTHORITIES, IS WHAT IT APPE ARED FROM THE DOCUMENTS IN THE RECORD. IS THAT A MISSTATE MENT? HAVE WE CONCLUDED NOW , THAT THIS WAS AN ADULT CONVICTION?
YOUR HONOR, THE TRIAL COURT, AT THE TIME OF SENTENCING, MADE A FINDINGTHAT IT WAS AN ADULT JU D ICATION . THIS COURT, ON DI RECT APP EAL , FOUND THAT IT WAS AN ADULT ADJUDICATION, AND A F TER THE EVIDENTIARY HEARING , THE TRIAL COURT ONCE AGAIN FOUND THAT IT WAS AN ADULT ADJUDICATION, AND THE IR CLAIM IS THERE WAS PROSECUTORIAL MISCONDUCT FOR RELYING UPON THIS , BUT THE F ACT IS IT WAS COMPLETELY FLESHED OUT TO THE TRIAL COURT. DEFENSE COUNSEL ARGUED AGAINST IT AND SUBMITTED EVIDENCE TO THE CONTRARY AND THE STATE SUBM ITTED EVIDENCE IN SUPPORT , A ND THE TRIAL COURT MADE A FACT UAL DETERMINATION THAT IT WAS AN ADULT ADJUDICATION .
I AM TR YING TO UNDERSTAND THE SOURCE OF THAT PROBLEM. WE SHOULD BE ABLE TO LO OK AT RECORDS AND DETERMINE WHETHER IT IS AN ADULT OR JUVENILE PROBLE M. WHAT WAS THE GENESI S OF T HEPROBLEM OR THIS DISP UTE ON WHETHER IT WAS JU VENILE OR AN ADULT CONVICTION?
I THINK THE GE NESIS O F THE PROBLEM WAS , AT THE TIME OF THE CRIME HE WAS 1 6.
RIGHT.
AND WHEN THE STATE INITIALLY GOT THE INFORMATION, THEY WERE UND ER THE BELIEF THAT HIS 1980 CONVICTION WAS A JUV ENILE ADJUDICATION, AND WHEN THEY FIRST INTRODUC ED IT TO THE TRIAL COURT , THEY WERE ARGUING AS A JUVE NILE ADJUDICATION, BECAUSE AT THAT TIME IN 1 9 87 , THERE WAS NO PRECONCLUSION OF ADMITTING JUVENILE , PRIOR JUVENILE CR IMES , BUT SUBSEQUENTLY, THE STATE CAME BACK AND SAID, YOUR HONOR , WE HAVE GOT MORE INFORMATION, AND WE HAVE NOW MADE A DETERMINATION THAT THIS WAS AN ADULT ADJ UDICATION , AND DEFENSE COUNSEL ARGUED AGAINST IT , AND THA NK YOU.
CHIEF JUSTICE: THANK YOU VERY MUCH. MS. McDERMOTT.
JUST TO RE VISIT THE BRADY ISSUE. THANK YOU. THAT IS ABSOL UTELY FAL SE, THAT TRIAL COUNSEL HAD THE POLICE REPORTS. WHAT HE HAD WERE THE TRANSSCRIBED TA PED STATEMENTS THAT HAPPENED AFTER, SEVERAL DA YS AFTER THE CRIME. AND IF HE HAD H T POLICE REPORTS, HE COU LD HAVE SHOWED THAT THERE WAS THIS PROGRESSION, AS E VERY TIME THE WITNESS WAS INTERVIE WED , MORE AND MORE DET AILS WOULD COME ABOUT , ABOUT HOW LESS MR. DAVIS WAS INTOXICATED AND ABOUT HOW MUCH MORE PREMEDITATION THERE WAS , S O --
LET ME MAKE SURE, AND OBVIOUSLY WE CAN LOOK A T THIS, HOPEF ULLY LOOK AT THIS IN THE RECORD AND FL ESH THIS OUT . MISS SABE LLA IS REPRESEN TING THAT EXACTLY WHAT IS IN THE TRANSSCRIBED STATEM ENT, IS JUST, THAT THE , W HAT WAS IN THE POLICE REPORT WAS JUST A SUMMARY OF THE TRANSSCRIBED STATEME NT.
NO.THE POLICE REPORT WAS A STATEMENT, TAKEN FROM THE WITNESS. THEN THEY DID A TAPED STATEMENT.
SO AFTER --
SO THEY GAVE ANOTHERSTATEMENT. THEN THE STATE ATTORNEY HAD A SYNOPSIS .
CLARIF Y THAT IT WASN'T REALLY A STATEMENT. IT WAS IF THEY WERE TALKINGAND WRITING DOWN WHAT THE WITNESS HAD SAID . IT WAS NOT A TAPED STATEMENT. LET'S MAKE SURE, BECAUSE WE HAVE GOT A DISPUTE GOING ON HERE THAT SHOULDN'T HAPPEN IN AN APPE LLATE COURT. WE HAVE GOT A FIGHT OVER WHAT THIS RECORD SHOWS. AND SO LET'S BE S U FFER THAT WE -- LET'S BE SURE THAT WE TALK EXACTLY ABOUT WHAT IT WAS IN RESPONSE TO HER QUESTION, AND SHE IS ENTITLED TO AN ANSWER I N THIS, IN THAT THERE WAS A POLICE REPORT , A POLICE PERSON WRITING DOWN WHAT THEY ARE TOLD ABOUT A SCE NE. THAT IS NOT REALLY A STATEMENT.
WHAT IT IS --
HOLD O N.HOLD ON. THAT IS NOT REALLY A STATEMENT, CORRECT?
OF COURSE IT IS A STATEMENT N YOUNG VERSUS STATE, THIS COURT SAID T HAT THE NOT ES OF THE POLICE OFFICERS, OF WITNESSES , THAT WAS A STATEMENT. IT WASN'T TURNED OVER TO THE DEFENSE COUNSEL.
YOUR POINT IS THAT THIS WAS THE CL OSEST IN TIME , TO WHAT WAS SAID TO THE POLICE , EVEN THOUGH THERE ARE LATER STATEMENTS WHICH ARE ACTUALLY STATEMENTS , W HEREYOU HAVE THE PER SON SAY ING WORD FOR WORD VERB ATIM.
CORRECT.
SO THAT IS YOUR POINT.
CORRECT.
OK AY.
JUST TO GET --
THEY SP OKE TO THE POLICE. EXHIBITS 6, 7 , 8 AND 1 2 ARE THE EXHIBITS WHERE TH EY SPOKE TO THE POLICE , THEY SPOKE TO THE ST ATE ATTORNEY. THERE IS NOTHING IN T HIS RECORD AND IN FACT THE S TATEATTORNEY AT THE EVIDENTIARY HEARING, SPECIF ICALLY S AID THAT WAS NOT TURNED OVER TO TRIAL COUNSEL .
I AM VERY CON CERNED, YOU KNOW, ABOUT THIS DIS PUTE, TOO , BECAUSE YOUR O P PONENT SAYS THAT THE VERY THINGS THAT YOU CLAIM WERE WITH HELD , AND THAT ON THEIR FACE AT LEAST , CERTAINLY APPEAR THATTHEY WOULD BE PREJUDICIAL , NOT TO DISCLOSE , i. e. STATEMENTS IN WHICH THESE WITNESSES SAID THAT HE WAS ABSOLUTELY INTOXICATED , COMPARED WITH THEIR TRIAL TESTIMONY, THAT HE WASN'T INTOXICATED . THAT THOSE STATEMENTS WERE PROVIDED TO DEFENSE COUNSEL . AND NOW LET JUST ST OP FOR , JUST FOCUS ON THAT FOR A MINUTE.
OK AY.
ALL RIGHT. DID DEFENSE COUNSEL TESTIFY , AND WOULD THE RECORD DEMONSTRATE HERE , THAT HE WAS PROVIDED STATEMENTS IN WHICH THESE WITNESSES SAID THAT HE ABSOLU TELY WAS INTOXICATED. YOU KNOW, I AM PARAPHRASING OBVIOUSLY, AND YOU KNOW , THAT WOULD BE IN SH ARP CONTRAST, THEN, TO WHAT THEY TESTIFIED TO AT TRIAL. JUST FOCUS ON THAT F OR A MINUTE.
OKAY.WHAT HE HAD , WHAT HE HAD, HE HAD THE TAPED VER BATIM STATEMENTS FROM CA STLE AND REICH. IN THOSE STATEMENTS , REICH , CASTLE DID MAKE COMMENTS , WHICH HE IMPEAC HED HER WITH , ABOUT THE INTOXICATION. HOWEVER , IF YOU LO OK AT THE POLICE REPORTS, WHICH ARE 6 , 7 , 8 AND 12 AND THE STATE ATTORNEYS SY NOPSIS , SHE MADE OTHER STATEMENTS THAT HE DIDN'T HAVE ACCESS TO.
AND HOW ARE THOSE EAR LIER STATEMENTS OR SUMM ARIES O F STATEMENTS, DIF FER FROM THE TAPED STATEMENTS?
FOR EXAM PLE ON CASTLE, HEDID NOT HAVE THE STATEMENTTHAT SHE SAW HIM AT 6:30 IN THE EVENING, COMING BACK FROM THE BAR. HIS EYES WERE GLA SSY. THIS IS IN THE BRIEF, TOO , THIS SPEC IFIC QU OT E , HIS EYES WERE GLAS SY. HE WAS STUMBLING. HE WAS INTOXICATED , WHICH AS I SAID CONFLICTS WITH HER DAUGHTER'S TESTIMONY ABOUT WHAT HE WAS DOING AT 6:30 P.M., DRIVING A CAR , PERFECTLY SOBER , TO TALLY CONFLICTS WITH THAT, BUT ALSO IN AND OF ITSELF , IT I S ANOTHER TIME PER IOD WHERE SHE WAS SAYING HE WAS N OTDRUNK, WHERE HE WAS --
BUT YOU ARE SAYING THERE ARE SUBSTANTIAL DIFFER ENCES IN THE STATEMENTS THAT WERE MADE THAT WEREN'T DISCLO SED , THAT WOULD HAVE BEEN EVEN STRONGER IMPEACHMENT OF THESE WIT SNEZ -- WITNESSES?
CORRECT.
WHICH OFFICERS' REPORTS ARE YOU REFERRING TO , BECAUSE WHAT YOU ARE REFERRING TO IS AN OFFICER TAKING A STATEMENT FROM THESE WITNESSES, CORRECT?
CORRECT.
WHICH OFFI CER?
THE REPORTS WERE DEFENSE EXHIBIT NO. 5 WAS DIRECT IVE ROADS ---DETECTIVE RHODES 'S