THE NEXT CASE ON THIS MORNING'S DOCKET IS WILLIAM CODAY VERSUS THE STAT E OF FLORIDA . GOOD MORNING.

MAY IT P LEASE THE COURT. MY NAME IS JEFF REY ANDERSON , AND I REPRESENT THE APPELLANT IN THIS CASE , MR . WILLIAM CODAY . I WOULD LIKE TO , FIRST , JUST JUMP INTO THE FIRST ISSUE IN THIS CASE .

CHIEF JUSTICE: WOULD Y OUJUST TELL US SO WE WILL KNOW AS SORT OF A ROAD MAP, WHAT ISSUES YOU WILL BE STRESSINGTHIS MORNING.

I AM GOING TO TRY TO ADDRESS THEM AS THEY APP EA R IN THE BRIEF, W H ICH MEANS ILL RUN OUT, SOON , OF TIME.

BEFORE YOU RU N OUT , WOULD YOU START GE TTING TO IT A NDMAKE SURE THAT YOU TOUCH ON YOUR ISSUE ABOUT THE FAI L URE TO FIND THE MITIGATING FACTOR OF CONFORM ING YOUR CONDUCT AND THE PROPOR TIONAL ITY.

OK AY.

I WOULD ACTUALLY, IF I WERE YOU, I WOULD START WITH THOSE.

OKAY . I AM HERE FOR YOU GUYS , SO THE FIRST , THE SE VENTH I SSUEIN THE BRIEF AND THE FIRST ONE I WILL AD DRESS , IS THE REJECTION OF THE MITIGATION OF AB ILITY TO CONFORM CONDUCT , BEING SUBSTANT IALLY IMPAIRED, AND OUR POIN T ONTHIS, IS THAT THE EVID ENCE WAS UNCONTROVERTED , SUPPORTING THIS MITIGATING CIRCUMSTANCE.

I UNDERSTAND THERE WERE FIVE ME NTAL HE ALTH EXPERT S, WHO ALL IFIED TO THIS , BUT WHAT WAS THEIR IMONYBASED ON ?

IT WAS BASED ON HUNDREDS OF HOURS OF TES TS GIVEN TO THE WILLIAM CODAY , OF REVIEWING , OF INTERVIEWS REVIEWING THE RECO RDS , HIS BACKGROUND AND RE VIEWING THE CRIMINAL RECORDS OF THI S CASE, EVERY ASPECT OF IT .

IS THERE A CASE THAT SAYS THAT A COURT IS REQUIRED TO ACCEPT THE IMONY O F EXPERTS, THAT IS UNRE BUTTED BY OTHER EXPERTS BUT REBUTTED BY LAY WITNES SES ?

NO. I THINK, IF THERE IS A DISPUTE FACTUALLY, AS TO THE BASIS FOR THE, THAT THE , FACTS THAT THE EXP ERTSRELIED ON, AND THAT IS IN DISPUTE, I THINK THE JUDGE IS FREE TO DISREGARD THE EXPERTS UNDER THAT VERY LIMITED CIRCUMSTAN CES . THIS IS NOT ONE OF THOSE CASES.

SO WHAT CASE SAYS THAT A JUDGE MUST A C CEPT EXPERT IMONY THAT IS REBUTTED BY ONLY LAY WITNESSES OR EVEN UNR EBUTTED EXPERT IMONY?IS THERE A CASE THAT SAYS THAT THE COURT MUST ACCE PT THAT AS TR UE? OR DOES CREDIBILITY NOT, IS NOT TAKEN INTO ACCOUNT IN THAT INSTANCE?

I AM SORRY. I MUST HAVE MISSPO KE. IF THERE IS A CREDIBLE THING WHERE SOME FAC T AT THE EXPERTS -- FACT THAT THE EXPERTS ARE RELY ING ON IS DISPUTED, THE JUD GE CAN USE THAT FACT AGA INST THE EXPERT'S OP INION , AND HE WON'T BE , UNDER THAT LI MITED CIRCUMSTANCE , YOU KNOW , CONFINED BY THE EXPERT OPINION.HE CAN RE JECT IT UNDER THAT CIRCUMSTANCE.

HASN'T THIS COURT , HA VEAN OP INION OUT THERE WHICH SAYS THAT , DIFFERENT FROM EYEWITNESS FACT UAL IMONY , THAT OPI NION IMONY BY AN EXPERT , CAN BE EVALUATED BY THE COURT, AND IF THE COURT DETERMINES THAT THE OPINION IMONY IS NOT CRED IBLE , THE COURT DOESN'T HAVE TO RELY UPON IT ? DIFFERENTIATING BETWEEN FACT IMONY AND OPINION IMONY.

I THINK THAT, WHERE THE OPINION IMONY IS UNREBUTTED BY ANY THING AND HAS THE FACTUAL SU PPORT , I THINK , THE , I THINK T HIS COURT HAS SAID THAT THE TRIAL JUDGE IS BOUND BY THAT.

BUT WHAT CASE ARE Y OUREFERRING TO?

I DON'T RECALL OFFHAND. I WILL GET INTO IT IN REBUTTAL.

CAN WE APPROACH THIS IN, FROM JUST MAYBE A LI TTLE DIFFERENT DIRECTION, THE SAME KIND OF SCENARIO. HOW DID ALL OF THESE EXPERTS ACCOUNT FOR THE FACTUAL INFORMATION IN THE C ASE ALONG THE LI NES OF THE PLANNING , OF THE WITHDRAWAL OF MONEY, OF THE PL ANNED EXODUS FROM THE STATE AND FROM THE COUNTRY? HOW DID THE EXPERTS, W HOTALK IN T E RMS OF "OUT OF CONTROL" DEAL WITH OR HANDLE OR ADDRESS THOSE FACT S?

WELL , THEY DEALT WITH IT , THE FACT THAT H E WAS INTENDING , I MEAN , HE WAS INTENDING , IF YOU WENT TO EUROPE , WAS TO COMMIT SUICIDE. I MEAN, THAT WAS PART OF HIS OBSESSION AND PART O F HIS PROBLEMS. IT WASN'T , YOU KNOW, EVEN THE STATE ATTORNEY , A BOUT THIS PREPLANNING , THE S TATEATTORNEY, ON 18 22 OF THE TRANSCRIPTS IN HIS CLO SING ARGUMENT, EVEN DISAVOWED THAT THIS WAS A PLANNED KILLING LIKE THAT.

THEY DIDN'T TR Y TO GET CCP A S A N AGGRAVAT OR?

NO. NO. THEY DIDN'T AT ALL.

WHAT IS THE DIFFERENCE THAT YOU SEE , BET WEEN THE MENTAL AGGRAV ATOR O F COMMITTED WHILE , THE CR IME WAS COMMITTED WHIL E HE WAS UNDER THE INFLUENCE OF EXTREME EMOTIONAL OR MEN TAL DISTRESS , AND WHAT ACTUALLY HAS TO BE ESTABLISHED , TO FIND THAT THE DEFEND ANT , LACKS THE CAPACITY TO APPRECIATE THE CRIMIN ALITY OF HIS CONDU CTOR CONFORM HIS CONDUCT TO THE REQUIREMENTS OF LAW, THAT THAT IS SUBSTANTIALLY IMPAIRED? I DON'T KNOW THAT WE HAVE EVER ACTUALLY DISCUSSED THE DIFFERENCES , BUT EXPLAIN HOW ONE IS DIFFERENT FROM T HEOTHER , AND GOING BACK TO WHAT JUSTICE QUINCE SAID , WHAT WAS IT THAT THE EXPERTS SAID ABOUT THAT MITIGATOR , THAT WOULD BE COMPE LLING INFORMATION? OTHER THAN JUST FACTS OF THE CRIME. WHAT, CAN YOU FIR ST, INOTHER WORDS, WHAT IS THE DIFFERENCE BETWEEN THE TWO, IF SOMEONE IS UNDER INFLUENCE OF EX TREME MENTAL OR EMOTIONAL DISTUR BANCE A T THE TIME OF THE CRIME ? CAN HE, ALSO , HAVE THE ABILITY TO APPREC IATE THE CRIMINALITY OF HIS CONDUC T?

WELL, I THINK THEY ARE NOT JUST REPUTATIONS OF ONE ANOTHER.

HOW ARE THEY DIF FERENTAND HOW , AG AIN, GOING B A CK TO WHAT JUSTICE L EWIS SAID , TO NOW, G IVEN THE FACTS O F THIS CRIME, WHERE IS T HEREAT LE AST CONSCIOUSNESS OF , THAT HE IS GOING TO DO SOMETHING , BECAUSE HE H ASPLANNED, WHATEVER THAT PLAN WAS, MAY BE UP FOR GRABS , BUT HE WAS DOING SOMETHING TO GET OUT OF THE COUNTRY , AFTER THIS INCIDENT.

WELL, GOING TO THAT INCIDENT, I HAVE LOOKED AT THE CASE LAW AND I CAN'T TELL YOU FOR THAT INC IDENT , IT IS TRUE YOU CAN'T HAVE OPERATING UNDER EXTREME EMOTIONAL OR MENTAL DISTRESS.

WE HAVE TO KNOW, WHETHER A JUDGE SHOULD REJECT IT OR ACCEPT IT , H OW IT IS DIFFERENT.YOU OUGHT TO BE ABLE TO TELL US THAT , BASED ON YOUR YEARS AS AN APPELLATE P U BLIC DEFENDER, DOING DEATH PENALTY CASES.

WREATH. I THINK THE SECOND ONE IS - - RIGHT.I THINK THE SECOND ONE IS MORE AIMED AT , WELL, IT IS WHAT IT SAYS. HIS CAPAC ITY. IT HAS GOT TO BE ONE THIN G YOU CAN , IT IS MORE, FOR WANT OF A BETTER TERM, SUBJECTIVE AS TO HI M. IT IS ONE THAT YOU NEED MORE MENTAL HE ALTH EXPERT IMONY ON.

IS IT A DIMINISHED CAPACITY MITI GATOR , TO SAY THAT, AT THAT TIME , THAT HE DIDN'T KNOW H E WAS DOING ANYTHING WRONG , OR DIDN'T UNDERSTAND HE WAS DOING SOMETHING WRONG?

IT IS NOT TO THAT EXTENT , BUT HIS CAPA CITY JUST SAYS , AS IT SAYS , IT IS IMPAIRED. IT IS NOT LI KE AN INSA NITY , BUT IT IS TO THE DE GREE THAT THERE IS SOME --

I GUESS ONE OF THE THING THAT IS COMES TO MIND , IS WHEN YOU ARE LOOKING AT THAT PARTICULAR MITIGATE OR , ARE WE LOOKING AT -- MITIGATOR , ARE WE LOOKING AT IT IN POINT OF TIME OF WHEN THE ACTUAL CRIME OCCURRED , OR ARE WE LOOKING AT I T IN A CONTINUUM? BECAUSE AS I SEE WHAT THE TRIAL JUDGE SAYS, HE IS SAYING THAT , FOR 20 YEARS, THIS MAN, YOU KNOW , WENT ALONG HIS LI FE. HE, I MEAN , RECOR D INDICATESHE WAS MARR IED TWI CE. HE HAD MULTIPLE RELATIONSHIPS WITH VARIOUS WOMEN, AND EVERYTHING WENT ALONG FINE, AND THEN YOU KNOW, THIS MU RDER OC CURS. SO HOW DO WE D ECIDE IF H E HAD THE AB ILITY TO CONFORM HIS CONDU CT, WHEN WE KNOW FOR AT LEAST TW ENTY YEARS HE DID !

IT IS NOT OVER CONTINUUM. IT IS AT THE TIME OF THE OFFENSE, AND THE JUDGE WAS INCORRECT IN SAYING THERE WERE NO OTHER OCCASIONS WHERE THIS WOULD APPEAR , BECAUSE WHILE HE WAS , JUST WHILE HE WAS AWAITING TRIAL , HE GOT HIS FINAL DIVORCE PAPERS FROM HIS WIFE , AND H E WENT INTO A PSYCHOTIC STATE THEN AND TRIED TO COMMIT SUICIDE . AND THAT CERTAINLY WOULD BE DEFINED AS, YOU KNOW - -

SO WHENEV ER HE GETS INTO SOME REL ATIONSHIP AND IT DOESN'T GO THE WAY HE WA NTS TO, HE CAN'T CONFORM HIS CONDUCT.

WELL, IT IS MORE THAN JUST THAT , BUT IT IS WHEN , YOU KNOW, THE DO CTORS EXPLAINED, WHEN , IT HAS T O DO WITH THAT PART IALLY , B UTYOU HAVE TO LOOK AT THE WHOLE BACKGR OUND OF WHAT WAS GOING ON. IN HIS CASE WITH GLORI A GOMEZ , IT WAS A CASE OF BETRAYAL O N HIS , THE WA Y HE WAS LOOKING AT IT , BECAUSE THE DOC UMENT THAT WAS INTRODUCED INTO E V IDENCE SHOWED THAT THEY HAD A RELATIONSHIP. THEY HAD T ALKED ABOUT PL ANS TO MARY , HAVE CHILDRE N , AND -- TO MARRY, HAVE CHIL DREN , AND FRIENDS WERE TELLING MR . CODAY AT THAT TIME THAT SHE WAS JUST USING HIM , SHE WAS NOT GOING TO , SHE WASN'T IN LOVE WITH HIM. SHE WAS JUST USING H IMBECAUSE OF IMMI GRATION PROBLEMS, AND SHE REASSURED HIM, NO , THAT WASN'T T HECASE, THAT I A M THINKING ABOUT MARRYING YOU BE CAUSE I LOVE YOU, AND THEN LATER ON, GOING TO THE DAY OF THE INCIDENT WHEN SHE TOLD HIM THAT SHE NEVER LOVE D HIM , THAT IS WHAT EVERYBODY SAYS TRIGGERED AN EMOTIONAL RESPONSE.

WAS THE EVI DENCE OF THE INCIDENT IN GERM ANY , 20 YEARS PREV IOUSLY OR WHATEVER THAT PERIOD OF TIME WAS , WAS THAT BEFORE THE TRIAL COURT?

THE ON LY TIME THAT CA ME IN, WAS THERE WAS VERY SLIGHT CROSS-EXAMINATIONABOUT IT AT THE PENALTY , EXCUSE ME, AT THE SPENCERHEARING, AND THAT WAS ONLY , THE DETA ILS OF IT WE REN'T BROUGHT OUT INTO EVIDENCE EVER, BUT IN FACT THE TRIAL JUDGE HELD IT WAS NOT GOING TO BE ADMISS IBLE , EXCE PT IF THE EXPERTS WERE CROSS-EXAMINED, IF YOU PUT ON EVIDENCE AS T O IMPAIRED CAPACITY , THEY COULD BE CROSS-EXAMINED, IF THAT WAS PART OF THE FINDING.

LET'S SEE IF WE CAN'T G ETBACK TO THE QUESTION OF H OWDID THE EXPERTS IFY THAT THE CAPACITY TO APPRECIATE THE CRIMIN ALITY OF HIS CONDUCT ON THE DAY OF THIS INCIDENT WAS SUBSTANTIALLY IMPAIRED, BESI DES SAYING THAT IT WAS , WHAT SPECIFICALLY, LED THEM TO THAT UNIFORM CONCLUSION?

WELL , IT WAS , AS I SAID , IT WAS BASED ON THE RECORDSAND THE ING AND EVALUATIONS AND SOME OF HIS BACKGROUND , AND INCIDENTS THAT OCCURRED , AND THE FACT THAT, IN THE ING , THEY FOUND SEVERAL MENTAL ILLNESSES , INCLU DING ALMOST TO THE EXTENT O F BIP OLAR DISORDER.

HOW LONG A FTER THE INCIDENT , WERE THESE S DONE?

SOME OF THE DOCTORS, I REMEMBER ONE OF THE DOCT ORS , IT IS AT VARIOUS TIMES , TOBE HONEST WITH YOU .

WHAT WAS THE S O ONEST AFTER THE INCIDENT , THAT THE WAS DONE ?

I KNOW IT WAS, SOME OF IT WAS IN 1999. THAT IS THE EARLIEST I CAN SEE RI GHT HERE OFF MY NOTES.

THE MURDER WAS '9 7? IS THAT RI GHT?

YES. I THINK SO .

OK AY. SO, GO AHEAD. I DIDN'T MEAN TO T AKE Y OUOFF YOUR TRAIN - -

GIVE US SOME HE LP ON THIS. YOU ARE USING GENERALI TIES . CAN YOU BE MORE SPECIFIC IN THE RESPONSE. NOT JUST THAT WE RELIED ON ING OR INCIDENTS. I THINK THAT IS WHAT THE POINT OF THE QUESTION WAS, TO TRY TO GET SOME INFORMATION TO FILL IN T HEGAPS. COULD YOU DO THAT?

AND IF I MISS THIS , A LO T OF IT IS IN MY IN ITIAL B RIEF 18-THROUGH-28, BUT A LOT OF THE ING WAS, IT HAD TO DO WITH PSYCHOLOGICAL ING , AND IT IS, LIKE I SAID, THEY FOUND SE VERE MENTAL ILLN ESSES .

YOU KNOW WHAT? WE ARE NOT REALLY GOING TO GET ANYWHERE , IF YOU C AN'TGIVE US SPECIFICS. I DON'T MEAN TO C UT YOU OFF , BUT IN YOUR BRIEF HA S THE INFORMATION, I MEAN, IF WE ARE WRITING THIS OPINION , WHAT WE ARE REALLY SAYING I F WE WERE TO REVERSE ON THIS GROUND IS TO SIMPLY S AY, WELL, THE EXPERTS FOUND THAT HE DIDN'T HAVE THIS CAPACITY , AND YET W E CAN'T EVEN DEFINE WHAT IT MEANS AND HOW IT DIFFERS FROM EXTREME MENTAL OR EMOTIONAL DISTUR BANCE , THEN WE REALLY JUST DON'T HAVE MUCH MORE CLARIFICATION.LET'S AS SUME , JUST GET TING OFF THIS POINT AND JUST GO TO PROPORTIONALITY, ASSUME THAT WE DON'T , THERE IS ONE STATUTORY MITIGATOR , AND ONE AGGRAVATOR . DON'T OUR CASES , OUR MORE RECENT CASES IN BLACKWOOD AND BUTLER , I THINK BOTH OF WHICH I DISSE NTED IN , BUT DON'T TH OSE PROVIDE BA SIS FOR PROPORTIONALITY IN T HIS CA SE?

WELL , I DON'T THINK THIS COURT HAS ABANDONED ITS, THE CASE LAW ABOUT WHERE THERE IS BUT ONE AGGRAV ATING CIRCUMSTANCE . DEATH IS DISPROPORTIONATE , UNLESS THERE IS VERY LIT TLE OR NOTHING IN MITIGATION , AND I THINK THOSE CASES FALL UNDER THAT , WHERE THERE ISN'T MUCH MITIGATION , AND IN THIS CASE , DESP ITE THE FACT THERE IS BUT ONE STATUTORY MITIGATING CIRCUMSTANCE, IT IS AN EXTREMELY ST RONG ONE THAT THE TRIAL COURT FOUND. AND --

THIS WAS AN EXTREM ELY STRONG ONE , WASN'T IT?

I WAS TALKING ABOUT THE MITIGATING CIRCUM STANCE. THE AGGRAVATING CIRCUMST ANCE IS A STRONG ONE, TOO , B UTUNDER THE CIRCUMSTANCES , IT IS NOT AS STRO NG AS I T NORMALLY IS .

I BEG TO DIFER ON THAT , BECAUSE THERE IS , LIKE , WHAT , 40-SOMETHING OR 90-SOMETHING STAB WOUNDS ?

THERE WERE , WE DON'T. A NUMBER, YOU ARE CORREC T. EYE HAVEN'T BEEN HERE T HAT LONG BUT IT IS THE MOST STAB WOUNDS THAT I HAVE SEEN SINCE I HAVE BEEN HERE.

I DON'T KNOW HOW MANY OF THOSE WERE , I DON'T WANT TO QUIBBLE AND MINIMI ZE THEINJURIES, BECAUSE THEY W ERE GREAT , NO MA TTER WHAT STANDARD YOU USE. ANOTHER MEDI CAL EXAMINER --

MEDICAL EXAMINER IFIED 14 4, EVEN WO RS E THAN YOU SAY.

140 OR SOME SUCH NU MBER WERE ACTUAL STAB WOUNDS WHERE THE INCISION WAS GREATER THAN THE WI DTH OF THE INJURY, WHICH MEANS THAT IT PENETRATED SUBSTANTIALLY , AND A N UMBER OF O THERS W ERE CUTS OR SOMETHING LIKE THAT.

NOT TRYING TO , I HAVE CITED Le FAVE AND S COTT AND THE AUSTIN CASE I N POINT ONE OF MY BRIE F, TO EXPLAIN POINT THREE.I AM SO RRY ABOUT. THAT TO EXPLAIN THAT A LARGENUMBER OF WOUNDS LIKE THAT IS OFTEN INDICATIVE OF AN EMOTIONAL FRENZY, AND THAT IS WH Y I A M SAYING , NOT SAYING THE RESULTS ARE MINIMAL.

STIC KING TO OUR CASE LAW IN L e FAVE AND SCOTT , HAVEN'T WE SAID THAT A STAB BING I S THE ENOUGH TO ESTABLISH THE HAC AGGRAVATOR , AND HERE WE HAVE NOT ONE STABBING BUT 144 STABBI NGS , AND ISN'T I T , NOT ONLY DOES THAT NOT , NOT ONLY DOES THAT ESTA BLISH THE HAC FACTOR, BUT IT IS A PRETTY AGGRAVATING AGGRAVATOR .

IT IS --

AS HAC GOES . AS FAR AS OUR CASE LAW.

THERE IS AL SO CASE LAW THAT SAYS MULT IPLE STABBINGS IS NOT AUTOMATICALLY HAC. IT DEPENDS UPON CIRCUMSTANCES .

IS THAT FROM OUR C OURTTHAT SAYS IT IS NOT AUTOMATICALLY?

I AM AND PLA YING MY WORDS NOT AUTOMATICALLY. THERE IS MULTIPLE STAB WOUNDS WHERE HAC WAS N OTFOUND IN THIS COURT. IT SAID HAC DIDN'T APPLY .

LET'S ASSUME THAT HAC APPLIES.WHAT YOU ARE SAYING IS THAT THE N ATURE OF THE CRIME I N THIS CASE AND SOME OF THE BASIS FOR WHICH THE EXPERTS FOUND THAT HE WAS ACTUALLY UNDER THE INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTRESS, WAS ACTUALLY T HEWAY THE CRIME WAS COMMITTED, THAT IT WAS AN EMOTIONALCRIME.

RI GHT. CORRECT.

AND THAT IS REALLY THECASE, THOUGH , AND IN ANY O F THE HAC CASES, WHERE THERE ISN'T JUST A SLO W TORT URE , THOSE CASES ARE US UALLY ONES OF EMOTIO N. I THINK THAT BLACKWOOD MAY HAVE BEEN THAT AND BUTL ER, BUT ARE YOU SAYING THAT, IN THOSE CASES, THE MENTAL MITIGATOR WAS NOT FOUND, ISTHAT THE DIFFERENCE ?

YES. THERE WERE NO STRONG MENTAL MITIGATE OR FOUND , FOR EXAMPLE, IN BLACKWOOD. IT WAS HIS, HE HAD AN OTHER MITIGATOR BUT IT WASN'T T HETYPE OF MITIGATION IN THIS CASE, THAT RELATE S TO THE CRIME ITSELF.

THIS IS WHAT I HAVE A PROBLEM WITH IN THIS CASE. WE TALKED ABOUT THE FACT THAT THERE WAS THIS PR IOR PLANNING TO DO SOMETHING, WHICH WAS HE HAD THE TICKET. HE HAD THE MO NEY WITHDRAWN. HE ASKED HER TO COME TO H ISHOME. HE OBVIOUSLY DIDN'T HAVE TWO TICKETS, SO HE WASN'T PLANNING THAT SHE WAS GOING TO GO WITH HIM TO EUROPE. WHAT, AND THIS IS SOMETHING THAT JUST IS ALSO CONCERNING ME, THE FIRST PART OF T HIS CRIME STARTED WITH HIM USING A HAMME R. IS THAT CORRECT?

UM-H UM. YES.

AND THE CRIME IN GE RMANY , 20 YEARS BE FORE , IN WHICH THE EXPERTS WERE KRON TIONED , THE WE APON -- WERE CROSS-EXAMINED, THE WEAPON WAS A HAMMER , AND S O UNDERSTANDING , I GUESS , THE ARGUMENT WAS, NO , THIS WASN'T A PREPL ANNED KILLING. HE JUST WAS I N A FRE NZY AFTER HE HEAR D THAT SHE NEVER LO VED HIM . IT STILL DOESN'T JUST SEEM TO BE LIKE SOMETHING WHERE SOMEONE COMES IN AND SEES THEIR SPOUSE WITH ANOTHER PERSON AND THEY, YOU KNOW , GO BALLISTIC , THAT THERE WAS SOMETHING HERE THAT MA KES THIS DIFFERENT. NOW, CAN YOU HE LP ME ON THAT? I DON'T KNOW IF YOU, IT JUST , I UNDERSTAND C CP WAS N'T FOUND. I UN DERSTAND WE CAN'T LOOK AT THE PRIOR VIO LENT FEL ONY ISSUE FROM GERMANY , BUT THERE IS JUST SOMETHING ABOUT THIS THAT DOESN'T SIT WELL WITH ME ABOUT HOW THIS CRIME OCCURRED.

YOU KNOW , FIRST OF ALL , YOU KNOW, WE ARE DISCUSSING THE PRIOR GERMANY INCIDENT , ALTHOUGH I DON'T THINK WE SHOULD, BEC AUSE IT WAS EXCLUDED AND TH EY REALLY DIDN'T DEVELOP THIS DURING --

IT WAS CROSS-EXAMINED --

I T WAS US ED AS P ART OF THE NO SIGNIFICANT HIS TORY , DIDN'T HE? THEY WA NTED NO SIGNIF ICANT HISTORY , AND THE TRIAL JUDGE ACTUALLY USED IT TO DEMONSTRATE THAT THAT WAS NOT A STAT UTORY MITIGATOR.

RIGHT. HE JUST USED IT AS AN OCCURRENCE BUT NOT THE DETAILS LIKE ARE BEING U SED RIGHT NOW THAT IT WAS , WE NEVER DEVELO PED THROUGH AN AVERAGE SE RIAL PRO CESS , EXACTLY WHAT HAPPENED INGERMANY , B ECAUSE THE EXP ERTSWERE RELYING ON THAT TO SUPPORT THEIR FINDING OF MITIGATION.

HOW DID THE EXPERTS BECOME AWARE OF THAT CRIME IN GERMANY ? YOUR EXPERTS . DEFENDANT'S EXPERTS. EXCUSE ME.

I THINK THEY ALL WERE LOOKING AT THE REC ORDS.

PROVIDED BY DEFE NSE COUNSEL?

PROBABLY DEFENSE COUNSEL. I AM GUESSING. I DON'T KNOW .

I DON'T KNOW THAT , A GAIN , WE HAVE GOT ALL THESE QUESTIONS, SO , JUST A GAIN , ON THE CRIME, THE FACT THAT THERE IS NOT ONLY A L ARGENUMBER OF WOUNDS BUT I T STARTS OUT WITH HIM HAMMERING AND HE, ALSO , HAD , AGAIN, SOME PLAN TO LEAVE THE COUNTRY , SO HO W WAS THAT EXPLAINED?

THE PLAN TO LEAVE THE COUNTRY WAS, FIRST OF ALL HE DIDN'T PURCHASE THE TICKET AHEAD OF TIME. HE PURCHASED IT AFTERWARD, AND IT CAN B E CONSCIOUSNESS OF GUILT OF THE CRIME, BUT HIS PREPLANNING TO LEAVE , O R MAKING PO SSIBLE ARRANGEMEN TS TO LEAVE , WERE JUST THAT HE WAS DEPRESSED OVER THEIR RELATIONSHIP, AND IF HE SHOULD NOT BE ABLE T O WIN HER BACK , REUN ITE , H E EVEN TOLD HER, AS HE FIRST MET HER, IF YOU DON'T COME BACKWITH ME , I AM GOING TO LEAVE AND KILL MY SELF .

WHAT WERE THE DETAILS , IN TERMS OF I AM GRAPPLING WITH THE SAME I S SUE THAT HAS BEEN POSED TO YOU HERE , THAT IS THAT WE HAVE THE COINCIDENCE , AND IT IS WITHIN HIS KNOWLEDGE OBVIOUSLY , THAT HE HAD COMM ITTED A SIMI LAR CRIME IN GERMANY SOME TWENTY YEARS BEFORE. HE KNOWS THAT .

RIGHT.

HE IS AWAR E OF THAT. AND THERE HE HAD GONE DOWN INTO THE BA SEMENT OF THE HOUSE WHERE HE WAS AND SECURED A HAMMER AND COME BACK UP TO WHERE THE VI CTIM WAS IN HIS BEDR OOM OR WHEREVER. ALL RIGHT. BUT HE OBVIOUSLY KNOWS INTIMATELY, WHAT HA PPENED THERE BEFORE , AND I AM WONDERING IF THIS ISN'T PART OF A REL EVANT ANAL YSIS OF HIS MENTAL STATE AND SU CH. WHAT WERE THE DETA ILS HERE , IN TE RMS OF HIM HAVING A HAMMER AVAILABLE WHILE SHE WAS THERE VISITING WITH HIM ? WHAT EVIDENCE CAME OUT , INOTHER WORDS, DID THE EVIDENCE COME OUT THAT , AS OPPOSED TO HAVING TO GO TO THE KITCHEN OR SOMEPLACE , DID HE HAVE A HAMMER SI TTING ON HIS N IGHT STAND , OR TELL ME. HELP ME.

THE HAMMER WAS ON A YELLOW PA GES TELEPHONE BOOK RIGHT NEXT TO THE B ED.

THERE WERE TWO HAMMERS, RIGHT?

THERE WAS ANOTHER HAMMER. THERE WERE TWO.

ISN'T THIS A LIT TLE STRANGE THAT, TW ENTY Y EARSBEFORE, HE COMMITTED AN OFFENSE LIKE THIS , WITH A HAMMER, AND NOW, WHEN HE HAS THE GIRLFRIEND COME BACK OVER THAT HAS REJ ECTED HIM , APPARENTLY, AND HE IS TR YI NGTO WORK IT OUT , THAT H E HAS GOT TWO HAMMERS SITING THERE , THE SAME TOO L THAT HE HAD USED TWENTY YEARS BEFORE? I AM HAVING TR OUBLE PLUGGING THAT IN, YOU KNOW, TO T HAT JUST BEING, YOU KNOW, THAT JUST HAPPENS TO BE WHERE HE KEEPS HIS HAMMERS. TOO IS A STRANGE THING. ONE OF THE EX-WIVES IFIED THAT THERE WAS APROBLEM WITH THE BED, AND THAT IS WHERE WHERE SHE K EPT A HAMMER NEAR THE BE D, TOO , WHEN SHE WAS MARRIE D TO HIM AND HE KEPT A HAMMER THERE,TOO, TO CONSTANTLY FIX THE BED.I MEAN, THAT WAS THE IMONY.IT IS A STRANGE THING. I AG REE . BUT THAT IS WHAT THE FACTS WERE SHOWING, AS FAR AS THE WEAPONS BEING THERE. BUT THE PHOTOS AND EVERYTHING SHOWED THAT THIS WAS A VERY S MALL AM OUNT , AND THE KI LLING OCCURR ED IN A VERY LI MITED SP ACE , AND ALL THE PHYS ICAL EVIDENCE --

BUT HE HAD T O GO SOMEPLACE TO GET THE KNIFE, DIDN'T HE? DID HE ACTUALLY HAV E TOLEAVE THE ROOM?

REACH AR OUND. IT IS NOT CLEAR BUT IT COULD HAVE BEEN THAT ALL HE HAD TO DO WAS REACH AROUND THE CORNER, BECAUSE THE CORNER IS THE KITCHEN AND THE BEDROOM. AND HE, REALLY, DIDN'T HAVE TO DO MUCH MOVEMENT.

BEFORE YOU SIT DOWN , I SEE YOU ARE REALLY INTO YOUR REBUTTAL. WOULD YOU ADDRESS BRIEFLY, THE HEAT OF PA SSION A R GUMENT THAT YOU MA KE IN YOUR FIRST ISSUE.

OKAY. IT IS , THAT WAS , OBVIOUSLY THERE IS NO QUESTION THAT HE KILLED HER. THE WH OLE THING WAS WHAT STATE OF MIND DID HE HAVE , AND THE DEFENSE ARGUE D HEAT OF PASSION, THAT THIS WAS A N EMOTIONAL RESPONSE TO WHATHAPPENED.

HOW DO WE DISTIN GUISH THIS CASE FROM KILGORE , WHERE THIS COURT WAS FACED WITH THE SAME KIND OF QUESTION OF WHETHER OR NOT IT WAS ERR OR TO NOT GIVE A SPECIAL INSTRU CTION ON HEAT OF PASSION?

IN KILGORE , THE THE JUDGE'S PREROGAT IVE IN REJECTING THE INSTR UCTION BECAUSE IT WAS CONF USING , WAS THE LAST SENTENCE OF THE PARAGRAPH ON 89 8.

WHAT ABOUT THE INSTRUCTION THAT WAS OFFEREDHERE IN DON'T YOU THINK THAT WAS PRE TTY CONFUSING? IT IS A VERY LENG THY DISCUSSION, WITH ATTE MPT TO DEFINE A LOT O F TERM S.

IT COULD HAVE BEEN WRITTEN , PROBABLY, BETTER , BUT , AND IT PROBABLY WOULD HAVE BEEN, IF THE STATE HAD OBJECTED TO IT BEING CONFUSING, OR THE TRIAL JUDGE HAD MADE ANY MENTION OF I AM REJECTING IT BECAUSEIT IS CONFU SING AND MISLEADING. THAT COULD HAVE BEEN CORRECTED.THAT SHOULDN'T BE T HEPROBLEM WITH THIS. THE PROBLEM WITH THIS IS THAT THE JUDGE FOUND THAT EXCUSEABLE HOMI CIDE , THE STANDARD INSTRU CTIONS PORTRAYED THE THEORY OF DEFENSE,, WHICH U N DER PALMORE , WE ARE CLAIMI NG IT TO NOT.

THE STAN DARD INS TRUCTIONTALKS ABOUT THE HEAT O F PASSION. IT USES THOSE WORDS , R IGHT?

CORRECT.

SO WHY IS IT AN ABUSE O F DISCRETION FOR THE TRIAL JUDGE JUST TO G IVE THE STANDARD INSTRUCTION WITH THAT LANGUAGE IN IT AND REFUSE TO GIVE ANOTHER ONE?

BECAUSE THAT , AN EX CUSE ABLE HOMICIDE, IT IS RELATED AS A COMPLETE DEFENSE. IT DEFINES THE KILLING AS BEING LAWFUL, WHICH WAS NOT THE DEFENSE IN THIS CASE . WE HAVE TO GIVE EXCUSEABLE HOMICIDE. THE JURY HAS TO MAKE THAT DETERMINATION, WHETHER IT IS UNLAWFUL OR NOT , BUT BY GIVING THAT INSTRUCTION , DEFINED INSTRUCTIONS BY THE TRIAL COURT THAT YOU ARE TO FOLLOW THE LAW AS I HAVE INSTRUCTED YOU ON , HE DID THAT FIVE OR SIX TIMES FORM THE JURY HAS ESSENT IALLY BEEN TOLD THIS IS THE ONLY WAY YOU CAN CONS IDER HEAT OF PASSION, AND IT WAS INCONSISTENT WITH THE DEFENSE.

WHERE WAS THERE, IN THE PROPOSED INSTRUCT IONS , YOU SAY THERE IS TWO EL EMENT , THE PASSION AND THEN THE LAWFUL PROVOCATION . WHERE WAS THIS ANY EVIDENCE IN THIS CASE OF LAWFUL PROVOCATION?

WELL , I THINK THAT CAME , THE PROVOCATION IN ALL OF THOSE OTHER CASES , THE USUAL CASE, IS BETRAYAL BY ONE SPOUSE AGAINST ANOTHER OR ONE PER SON IN RELATIONSHIP WITH ANOTHER, AND I SU BMIT THAT HER L YING TO HIM , KNOWING SHE LIED TO HIM A LLTHIS TIME , ABOUT LO VING HIM , HE DIDN'T KNOW THAT UNTIL SHE SAID I HAVE NEVER LO VED YOU. THEIR WHOLE RELATIONSHIP W ASA LIE AND THAT WAS A BETRAYAL, WHICH AT LEAST CREATED A JURY QUESTION AS TO HEAT OF PASSION. I WILL RES ERVE THE REST O F MY TI ME. THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH. MS. CAMPBELL.

GOOD MOR NING. MAY IT PLEASE THE COURT. LESLIE CAMPBELL WITH THE ATTORNEY GENERALS OFFICE . IF I MAY START , I THINK JUDGE, JUSTICE WE LLS , YOU WERE GE TTING AT THE ISSUE OF WHEN EXPERT'S IMONYCOULD BE REJECTED AND THAT WOULD BE FO STER, AND THE STATEMENT IN THAT CASE WAS EXPERT IMONY ALONE , D OES NOT REQU IRE A FI NDING OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE. EVEN UNDON'T SKRE RTED OPINION IMONY -- EVEN UNCONTROVERTED OPINION IMONY CAN BE REJECTED , ESPECIALLY WHEN IT IS HARD TO RECONCILE WITH OTHER EVIDENCE PRESENTED IN T HECASE. AS LO NG AS THE C OURTCONSIDERED ALL OF THE EVIDENCE, THE TRIAL JUDG E'S DETERMINATION OF LACK OF MITIGATION WILL STAND , ABSENT OF PALPABLE ABUSE OF DISCRETION.

ISN'T THAT THE KEY , THOUGH, THAT IS THAT THERE HAS TO BE SOME EVIDENCE THAT THE TRIAL JUDGE BA SES H ERDECISION ON , DOES THERE NOT , AND WHEN EVALUA TING AN ISSUE , AND SO HERE IS THE ISSUE , AS FAR AS WHETHER THIS MITIGATE OR EX ISTED , AND SO YOUR OPPONENT IS P O INTING OUT , HEY , I HAVE GOT FIVE EXPERTS THAT NOT ONLY EXPRESS THE OPINION BUT ALSO DOCUMENTED THE BASIS OF THEIR OP INION , OKAY , AND NOW WE HAVE A TRIAL COURT FIN DING THAT REJECTS THAT, SO WHAT WE ORDINARILY DO , THEN, IS LO OK OVER ON THE OTHER SIDE AND SAY, WELL , WHERE IS THE, EITHER, EXPERT O R LAY EVIDENCE OR FAC TUAL , YOU KNOW, WHATEVER IT IS , THAT WOULD SU PPORT A REJECT ION OF THAT MITIGATOR , IN THE FACE OF THIS OTHER EVIDENCE , SO HELP US HERE. IN OTHER WORDS WHAT WOULD BE THE FACT S OR THE EVIDENCE THAT THE TRIAL JUDGE WOULD UTILIZE, THEN , T O DET ERMINE , TO REJECT THAT MITIGATOR . YOU KNOW , WE HAVE CASE S IN THE PAST , WHERE WE HAVE LAY IMONY THAT , WELL , A PERSON WASN'T DRINKING. I HAD A CONVERSATION WITHHIM.HE WASN'T EMOTIO NAL AT ALL. AS A MATTER OF FACT , HE WAS TOTALLY RATIONAL , AND YOU KNOW, THAT , WHAT EVER . WHAT DO WE HAVE HERE , THOU GH, THAT COUNTERS --

I THINK I UNDER STAND BECAUSE ARE GETTING AT , JUSTICE ANSTEAD. THERE ARE TWO ASPE CTS TO THIS. NUMBER ONE, WE HAVE, WE DON'T HAVE COMPLETELY UNCONTROVERTED IMONY FROM THE EXPERTS. LET ME START WITH THAT, AND THEN I WILL GET INTO T HEFACTS THAT NEED TO BE LOOKED AT, BOTH BEFORE AND AFTER THE CRIME , AS WELL A S THE WRITINGS OF MR . CO DAY. FIRST OF ALL, DR . JACOBSON DID NOT FIND THAT MR . CODAY DIDN'T KNOW WHAT HE WAS DOING WAS WRONG , AND DR . GOLDSTEIN SAID THAT CODAY KNEW THAT HE WAS HI TTING MS. GOMEZ , AND HE KNEW THATHE WAS H URTING MS. GOMEZ , AND HE KNEW THAT HE WAS CAUSING SERIOUS INJU RY, SO I THINK THOSE TWO D O CONTROVERT, TO AN EX TENT , WHAT THE OTHER EXPERTS ARE SAYING.

BUT HOW IS THAT MITIGATOR WORDED? I THOUGHT THAT IT WAS A "OR" YOU WERE UNABLE , EVEN IF YOU KNOW WHAT YOU ARE DO ING, YOU WERE UNABLE TO IN FORM IT TO THE REQUIREMENTS OF LAW.

IT IS. IT IS A " OR". IT IS WHETH ER OR NOT YOU CAN , YOU UNDERSTAND WHAT YOU ARE DOING AND CAN CONFORM YOUR CONDUCT.

OR CONFORM .

TO THE REQUIREMENTS O F LAW. HOWEVER , IF YOU TAKE A LOOK AT THE FACTS THAT WE HAVE IN THIS CASE , THE PR IOR PLANNING, AND IT WAS EXTENSIVE , AND THE STATE ATTORNEY DID NOT BACK AWAY FROM THAT. WHAT HE WAS SAYING IN HIS OPENING , OR HIS RE BUTTAL CLOSING, I SHOULD SAY , HE WAS SAYING OBS ESSION I S N OTLOVE, AND THAT IS IN ESS ENCE , WHAT THE DEFENSE WAS ARG UING . WE HAVE THIS OB SESSION WITH GLORIA, AND THERE FORE WHEN SHE REJECTED HIM , HE JUST BLEW UP . THE MAN SCRI PT THAT WAS WRITTEN WHICH WAS VERY SELF-SERVING, AND IT WAS WRITTEN OVER A THR EE-MONTHPERIOD OF TIME WHEN HE WAS IN EUROPE , WHEN CODAY WAS I N EUROPE AND NO RTH AFRICA. THAT DOES SHOW PREMEDITATION. IT, THERE IS A MOT IVE IN THIS CASE, AND THE MO TIVE WAS RA GE. THE TI TLE IS A JOU RNEY INTO OBSESSION. THERE MAY NOT HAVE BEEN ANY PLANING IN THIS CASE, B UTTHERE WAS THE CONSCI OUS DECISION TO KILL. IT WAS MORE OF A "O R" COMMENT .

WOULD YOU AGREE THERE CAN BE A CONSCIOUS DE CISION TO KILL, BECAUSE THAT IS PREMEDITATED, YOU HAVE GOT PREMEDITATED MURDER , AND , STILL , HAVE THE MENTAL MITIGATOR OF THE CAPACITY TO CONFORM YOUR CONDUCT TO T HEREQUIREMENTS OF LAW WAS SUBSTANTIALLY IMPAIRED?

I HAVE SEEN THAT WHERE BOTH ARE GIVE N. HOWEVER, IN THIS PARTICULAR CASE, IT , THE MITIGATE OR DOES NOT APPLY, AND IF YOU WILL LOOK AT THE FACTS , AGAIN --

JUST GO ING TO WHAT THE JUDGE SAID, THE JUDGE SEE ME D TO BASE HIS REJECTION ON THE FACT OF WHAT , HOW THIS MAN LIVED HIS LIFE F ROM THE TIME HE WENT FROM GERMANY , UNTIL , UP TO THE CRIME, AND THAT HE LIVED HIS LIFE WITH OU T INCIDENT. WOULD YOU, AND THAT IS, I N TERMS OF TRYING TO , YOU KNOW , UPHOLD THE TRIAL JUDGE, WHICH IS OUR, YOU KNOW , WHAT WE TRY TO DO, IT SEEMS THAT , BY CONCENTRATING ON WHAT HE DID FOR 20 YEA RS , AS OP POSED TO AT THE TIME OF THE CRIME , THAT HE IS REALLY NOT DEALING WITH THE, THIS MENTAL MITIGATE OR, SO W OULDYOU HELP ME OU T ON WHAT I ASKED MR. ANDERSON , WHICH IS EXACTLY WHAT DOES THIS MENTAL MITIGATE OR MEAN , AS OPPOSED TO THE ONE THAT DISCUSSES BEING COMM ITTED UNDER THE INFLUENCE OF EXTREME EMOTIONAL DISTURBANCE, AND DOES I T RELATE TO THE TIME OF T HECRIME, AS OPP OSED TO WHETHER SOMEONE LI VED A LAW-AB IDING LIFE OR NOT?

IT DOES RELATE TO THE TIME OF THE CRIME. HOWEVER, THE PH RASE THAT YOUR HONOR IS LOOKING AT , WAS A MOREOVER PH RASE . INITIALLY THE COURT , INITIALLY THE COURT --

HE JUST SAID THE EXPERTS DON'T CONV INCE THE CO URT HE IS RELI EVED FOR ACCOUNTABILITY OF HIS CONDUCTOR OTHERWISE IS NOT AWARE OF THE CONSEQUENCES. IT DOESN'T HELP US IN UNDERSTANDING WHY , WHY DID THE IMON Y OF THE MENTAL , YOU KNOW , IN OTHER WORDS WE ARE HAVING TO, THEN , G UESS AT WHAT FACTS THE JU DGE WOULD HAVE BASED THAT ON , AND SO TELL US WHAT THOSE FAC TS WOULD BE.

MAYBE IT COULD HAVE BEEN MORE ARTFULLY WRITTEN. HOWEVER , I INTERPRET THAT AS LOOKING AT ALL OF THE FACTS SURROUNDING THE CRIME , AND MOREOVER, HE DID HAVE TWE NTY YEARS WHERE HE HAD RELATIONSHIPS WITH WOMEN , BROKE UP WITH THEM , W ORKED WITH THEM , LIVED WITH THEM , AND DID NOT COMMI T THIS KIND OF CRIME. HE COMMITTED IT IN GERMANY, WHICH WAS BEFORE THE COURT WHEN THEY DISCUSSED WHETHEROR NOT THE GERMAN CONVICTION COULD COME IN , SO THE T RIAL COURT WAS WELL AW ARE OF THE FACTS.

SO YOU DON'T THINK THIS GUY JUST LOST IT? YOU DON'T THINK THAT EVERYTHING AR OUND THIS IS THAT THIS IS A GU Y THAT WAS DEVASTATED AND THEN LOST IT , WHETHER, WHETHER THAT ME ANS HE GETS THE DEATH PENALTY OR NOT, I MEAN , IT DOESN'T , IS THAT THE STATE 'S CONTEN TION? I MEAN, THEY DIDN'T ASK FOR CCP, CORRECT? EYE BELIEVE THE PROSECUTOR WAS LOOK --

I BELIEVE THE PROSEC UTOR WAS LOOKING FOR CCP AND HE WAS NOT ALLOWED TO ARGUE IT TO THE JURY.

YOU HAVEN'T CR OSS APPEALED ON THE BAS IS.

NOT ON THE C CP. NO. THE WHOLE ASPECT OF MR . CODAY 'S EXIS TENCE WITH GLORIA OR WITH G LORIA GO MEZ , SHOWS THAT HE , H E WAS INFATUATED WITH HER. IF YOUR HONOR WILL LOOK AT THE TRANSCRIPT, IT WAS PURELY A SEX UAL RELATION SHIP , AND EACH TIME THAT SHE EITHER DIDN'T CALL HIM OR WAS GONE FOR A PERIOD OF TIME, HE BECAME ENRAGED . HE WAS AN GRY THAT SHE WASN'T WITH HIM. AND THIS FINAL EVENT IN JUNE AND JULY OF 1 9 97 , HIS RAGE, HE REL EASED HIS RAGE , AND HE WAS ANGRY WITH HER FOR NOT COMING BA CK TO HIM .

WELL, FROM WHAT YOU ARE SAYING, IT SEEMS TO ME WE HAVE A BUILD-UP HERE OF SOMEONE WHO MAY NOT HAVE BEEN ABLE TO CONT ROL HIS CONDUCT AND CONFORM IT TO THE REQU IREMENTS , AND SO I GUESS I AM REALLY BOTHERED ABOUT THE LANGUAGE THAT WE USE IN CAMPBELL AND CASES THEREAFTER, WHICH , REALLY , TALK ABOUT THE MITIGATING FACTOR HAVE TO BE REASONABLY ESTABLISHED, TO BE FOUND A S A MITIGATING FACT OR. AND HERE WE HAVE , YOU KNOW , FIVE MENTAL HEALTH EXPERTS , WHETHER WE, IT IS OPI NIONEVIDENCE OR NOT , I MEAN THEY HAVE ALL OPI NED THAT , FOR VARIOUS REASONS HE COULD NOT CONFORM HIS CONDUCT TO THE REQUIREMENTS OF LAW , EVEN THOUGH WE HAVE, ON THE OTHER HAND, THE LAY WITNESSES WHO TALK ABOUT HOW HE HAS LIVED HIS LIFE D URING THAT TWENTY-YEAR PERIOD, AND SOHOW DO WE DETERMINE OR IS I T UP TO US T O DE TERMINE , WHETHER OR NOT THIS MITIGATING FACTOR HAS BEEN REASONABLY ESTABLISHED.

I THINK IT IS UP TO T HETRIAL COURT TO DETERMINE. THAT OF COURSE --

HE SHOULD LAY IT OUT A S TO WHY IT IS NOT REAS ONABLY ESTABLISHED, SHOULDN'T HE?

AND HE DID. HE IS SAY ING I D O NOT BELIEVE THE EXPERTS , AND ON TOP OF THAT , THERE IS THIS TWENTY-YEAR PERIOD OF TIME WHEN MR . CODAY COULD LIVE WELL WITHIN SOCIETY. AND THEN COMING DO WN T O THE FEW DAYS SURROUNDING THE CRIME , WE HAVE MR . CODAY TRYING TO CALL MS. GOMEZ , AND HE DOES REACH HER. WE HAVE HIM SAYING , IN THE MAN SCRIPT, I KNOW THAT S HEIS NOT GOING TO -- IN THE MANUSCRIPT, I KNOW THAT SHE IS NOT GOING TO CALL ME , NOT GOING TO COME SEE ME , UNLESS I TELL HER THAT I AM D YING OF CANCER. WE HAVE HIM MA KING A CONSCIOUS DECISION T O LURE HER BACK TO THE APARTMEN T. WE HAVE HIM TAKING MONEY OUT OF HIS ACCOUNT.

LET ME ASK YOU A QUESTION ABOUT THE NATURE OF T HECRIME. THERE IS CERTAINLY ENOUGH , BASED ON OUR CASE LAW, FOR THERE TO BE HA C. I LOOK BACK AT THE HIS TORY AND TO ME HAC WAS MORE MEANT FOR SOMEONE WHO SE TS OUT TO REALLY WANT TO T O RTURE SOMEONE O VER A PERI OD OF TIME AND KIND OF GETS SOME PLEASURE OUT OF IT, ALTH OU GHWE HAVE SAID INTENT DOESN'T REALLY PLAY A PART, BUT IS THE STATE CONTENDING THATTHE WAY WITH ALL OF THESE 140 STAB WOUNDS , THAT THIS WAS ACTUALLY SOMETHING T HAT HE WAS , THAT HE ACTUALLY SET OUT TO KILL HER THAT WAY? COULD YOU TELL ME ABOUT THAT. YOU KNOW , IN OTHER WORDS HOW , SORT OF LOOK, MA YBE GOING OVER INTO PROPORTIONALITY, HOW THE HAC AND EXTR EME MENTAL OR EMOTIONAL DISTURBANCE , HOW THEY COME TOGETHER IN THIS CRIME .

WE HAVE MR . CODAY ADDITIONALLY HITTING GL ORIA GOMEZ WITH A HAMM ER. HITS HER SE VERAL TI LES. SHE TAKES THAT HAM MER AWAY FROM HIM. SHE FIGHTS HIM AND TAKES THAT HAMMER AWAY . HE REALIZ ES THAT , AND HE PUTS THAT IN HIS CONFESSION,THAT THERE WAS A STRUGG LE, AND SHE TOOK THE HAMMER FROM ME. I WENT FOR ANOTHER HAMMER , HE SAYS , AND A KNIFE, S O HE CONSCIOUS LY KNEW HE WENT FOR ANOTHER HAMMER AND A KNIFE, AND HE CONTINUED TO EITHER HIT HER WITH THAT HAMMER AND NOT ONLY JUST BALL PA RT OF THE HAMMER BUT THE CLA W PARTOF THE HAMMER, AND HE DID SEVERE DAMAGE TO HER HEAD , FACE, TE ETH, I MEAN , IT WAS CLEAR , CLEAR THAT THOSE ACTIONS WERE VERY , VERY PAINFUL TO HER. HE THEN STABBED HER. HIS CONFESSION ENDS WITH, I STOPPED STABBING HER, WHEN I HAD THE KNIFE, I STABBED THE KNIFE TH ROUGH HER THR OAT , AND SHE IS HO LDING MY ARM , AND AT THAT POINT , A T THAT POINT, WHEN I FEEL THAT SHE IS DEAD, HE NO LO NGER , HE NO LONGER STAB S HER , SO W E KNOW THAT HE IS --

HE WAS STABBING HER TO KILL HER.

HE WAS STABBING HER T O KILL HER. HE WAS CONTINUING TO S TAB HER, UNTI L SHE DID NOT DI E. UNTIL SHE DIE D.

LET ME A SK YOU TO SE GUE FROM THERE, A S AN APPROPRIATE, ASSU MING T HAT WE FIND THE TRIAL COURT DID ERR IN REJECTING THIS OTHER MENTAL MITIGATOR, WOUL D YOU ADDRESS THE ISSUE OF WHETHER OR NOT, T HEN , THE IMPOSITION OF THE DEATH PENAL TY WAS STILL PROPORTIONAL . EVEN IN FINDING THE TWO MENTAL MITIGATORS .

I THINK IT SHOULD GO BACK DOWN FOR ANOTHER HEARING BY THE TRIAL COURT. LET HIM MAKE THAT DETERMINATION , AS TO WHETHER OR NOT THE MITIGATE OR HAS ANY WEI GHT TO IT. AND LET HIM MAKE THAT EVALUATION AGAIN.

SO THAT THIS C OURTSHOULDN'T DO THAT , I F W E DETERMINE THAT THAT WAS ERROR TO REJECT THAT MITIGATOR , THE STATE'S POSITION IS THAT WE SHOULD SEND IT BACK TO THE TRIAL COURT, TO P LUG THAT INTO AN EVALUATION.

UNLESS THIS COURT I S GOING TO AFFIRM THE CONVICTION, BASED ON PROPORTIONALITY, BUT IF THECOURT IS OF THE MIND-SET THAT AN E V ALUATION CAN'T BE DONE, THEN THE TRIAL COURTNEEDS TO DO THE RESENTENCING . WITH RESPECT TO WHAT WAS DONE AFTER THE CRIME , WHICH , AGAIN , SHOWS THAT THERE WAS THOUGHT THAT WENT INTO IT , MR. CODAY'S BA GS WERE PACKED. HE CALMLY BATHE ED , CHANGEDCLOTHES , AND CAUG HT AN AIRPLANE TO NEW YORK. HE USED MS. GOMEZ'S CA R TO DO THAT. ON THE PLANE , HE WAS AS CALM AS CALM COULD BE. THE WITNESSES , THE AIRLINE PASSENGER SAW NOTHING IN HIS DEMEANOR THAT INDICATED ANY EMOTIONAL DISTURBANCE OR ANYTHING, WHICH, AG AIN , REBUTS ANY CL AIM THAT MR. CODAY --

WHAT WAS THE TIME F R AME BETWEEN THE DEATH AND GETTING ON THE AIRPLANE?

WE ARE TA LKING HO URS. MAYBE TWO, THR EE HOU RS.

HE WAS ABLE TO GET ON A PLANE TO EUR OPE IN T WO O R THREE HOURS AFTER --

NO. HE WAS ON A PLANE TO NEW YORK. HE DROVE DOWN TO MIAM I, USED HER CAR TO DR IVE TO MIAMI , AND CAUGHT AN AIRLINE F LIGHT TO LaGUAR DIA , AND THEN FROM LaGUARDIA, THE NE XT DAY , HE -- I DIDN'T KNOW THESE DAY S YOU COULD BE ABLE TO GET ON A PLANE THAT QUIC KLY A NYPLACE.

HAD HE ALREADY CH ECKED OUT THE AIRLINES. WHILE HE HADN'T PAID FOR A TICKET, HE HAD DETERMINED WHEN THE FLIGHTS WERE AND WAS VERY CONCERNED THAT MS. GOMEZ DIDN'T GET TO HIS HOME.

EXCEPT THAT THAT WOULD REFUTE, YOU ARE NOT CONTENDING THAT THERE WAS A N EVIDENCE THAT HE WAS UNDER THE INFLUENCE OF EXT REME MENTAL OR EMOTIONAL DISTURBANCE.THAT AGGRAVATOR WAS FO UND. I GUESS I AM STRUGGLING MYSELF, WITH JUST TR YING TO UNDERSTAND WHERE THEY B REAK OFF AND SO THAT ONE ISN'T THAT DOESN'T NECESSARILY FOLLOW FROM THE OTHER .

YOU CAN B E , YOU CAN H AVE A MENTAL ILLNESS, BUT IF THAT MENTAL IL LNESS DOESN'T CAUSE YOU TO LOSE CONT ROL OF YOUR CAPACITY TO EITHER UNDERSTAND WHAT IS GOING ON ABOUT YOU AND AS FAR AS THE LAW IS CONC ERNED , AND TO CONFORM YOUR CONDUCT , THEN YOU CAN HAVE ONE MITIGATE OR WITHOUT THE OTHER MITIGATOR , AND THAT IS WHAT HA PPENED IN THIS CASE.

WHAT DID THE EXPERTS SAY , THEN, ABOUT WHETHER HE KNEW WHAT HE WAS DOING WAS W RONG , AT THE TIME THAT HE WAS DOING IT.

THEY , ALL , THEY - -

OR WHE THER HE WAS ABLE TO CONTROL HIM SELF IN DOING IT , I GUESS IS THE OTHER , THE "OR".

AS I QUOTED , YOUR HONO R, WE HAD TWO EXPERTS THAT , I GUESS THE BEST WAY , THEY BACK TRACKED A LITTLE F ROM THE IN ITIAL STATEMENT THAT THEY FOUND BOTH MITIGATORS . BUT BUT THE TRIAL COURT W ASWELL WITHIN ITS R IGHTS TO NOT FIND THAT THAT PARTICULAR MITIGATOR W ASFOUND, BASED ON BOTH HOW THE EXPERTS LOOKED AT ALL OF THE EVIDENCE, INCLUDING THE GERMAN CONVICTION , AND ITS SIMILARITIES, HOW , AND THE INFORMATION, THE EVEN TS THAT SURROUNDED THE K ILLING IN GERMANY, AS WELL AS THE EVENTS THAT SURROUNDED THE KILLING OF MS. GOMEZ. THOSE TWO , THE WAY THAT THE EXPERTS PUT IT TO GETHER , COULD BE REJECTED FROM , BY THE TRIAL COURT , BASED ON EVERYTHING THAT MR. CODAY DID JUST BEFORE THE KILLINGOF MS. GOMEZ AND HIS LIFE FOR THE TW ENTY Y EARS BETWEEN THOSE TWO CRIMES.

COMPAR E THIS TO, LIKE , NORMAN GRIM, WHERE THERE WAS IMONY OF AN IMPULSE CONTROL DISORDER. SIMILAR SORT OF FACT UAL CIRCUMSTANCES HERE, WHERE THERE WAS JUST THIS BR UTAL BEATING AND KILLING . IN ANSWER T O JUST ICE PARIENTE'S QUESTION, HOW WERE HIS MENTAL PROBLEMS RELATED TO THE INABILITY TO CONTROL THE RAGE OR THE IMPULSE?

WEL L --

IF AT A LL.

WHAT THE EXPERTS WERE GETTING AT , IS THAT , G IVEN HIS LIFE AND , I DON'T WANT TO SAY FEAR OF REJECTION , BUT THAT SORT OF AS PECT OF HIS LIFE , THAT, THEY THO UGHT , DOVETAILED INTO INAB ILITY TO CONTROL THE COND UCT.

WAS IT RELATED T O THE DEPRESSION, LET'S SAY , HIS MAJOR DEPRESSION?

THEY MADE IT RELATED. THEY CONNECTED IT THAT WAY. THEY SAID, WELL , HE IS DEPRESSED AND THER EFORE THIS IS WHAT HAPPENS , THAT HE DEINVOLVES INTO THIS - - HE DEVOLVES INTO THIS --

THERE IS A DIFFERENCE BETWEEN SOMEBODY BEING DEPRESSED. THE DIAGNO SIS WAS A BO RDER PERSONALITY DISORDER AND MAJOR DEPRES SIVE WITH PSYCHOTIC FEAT URES. THAT IS A LITTLE BIT DIFFERENT THAN SAYING SOMEBODY IS DEPR ESSED OVER , THEIR GIRLFR IEND OR BOYFRIEND LEAVING THEM.

THAT IS HOW THEY EXPLAINED IT. HOWEVER , HIS ACT IONS A R OUNDTHE TIME OF THE CRIME AND THROUGHOUT HIS LIFE , DO N OTSHOW THAT . THAT, THE , THE PLANNING AND ALL OF THAT , THAT WENT INTO HIS COMMITTING OF THE CRIME , CERTAINLY DOESN'T SUPP OR T WHAT THE , AND SUPPORTS WHAT THE TRIAL COURT FOUND , WHI CH WAS THAT HE WAS ABLE TO CONFORM HIS CONDUCT. AND SOME OF THE EXPERTS SA IDHE KNEW WHAT HE WAS DOING WAS WRONG , AND THAT HE WAS HURTING MS. GOMEZ , SO THERE WAS SUFFICIENT --

WHEN YOU SAY PLAN NING , WITH COMMISSION AFTER CRIME, WHAT FACTS ARE OR EVIDENCE -- WHAT FACTS OR EVIDENCE ARE YOU TALKING ABOUT THERE?

AGAIN, THAT WOULD B E WITHDRAWING OF THE MO NEY , CHECKING WITH THE AIRLINES, SETTING UP RESERVATIONS , WHILE HE DOESN'T PAY FOR THE TICKET, HE, FOR EUROPE --

YOUR OPPO NENT SAYS T HAT ALL OF THAT WAS NO BIG SECRET THAT, HE PLANNED ON LEAVING AND AS A MATTER OFFACT, PART OF THAT WAS HE ACTUALLY PLANNED ON GOING TO GERMANY OR WHEREVER AND KILLING HIMSEL F.

THAT IS WHAT HE SAYS --

UNRELATED TO THE CRIME COMMITTED HERE.

THAT IS WHAT HE SAYS THREE MONTHS AFTER THE CRIME , IN A BOOK THAT TOOK HIM THREE MONTHS TO WRITE. THAT IS NOT WHAT HE TOLD HIS EMPLOYER. HIS EMPL OYER DIDN'T KNOW ANYTHING ABOUT HIS LEAVING. IF MR . CODAY WAS GOING T O LEAVE FOR ANY PERIOD OF TIME, HE CERTAI NLY AS A MO DEL EMPLOYEE THAT HE WAS DESCRIBED AS --

NOT LEAV ING THE COU NTRY , WHAT OTHER EVIDENCE WAS THERE?

HE TOOK OUT MONEY, ALMOST ALL OF HIS SA VINGS. HE LE FT $600 IN HIS AC COUNT AND HAD $6,000 IN CASH ANDTRAVELERS CHEQUES. CERTAINLY HE DOESN'T APPEAR TO BE A MAN GOING TO E UROPE TO KILL HIMSELF. LOOKS LIKE A MAN GOI NG TO EUROPE TO STAY FOR A WHI LE.

WHAT ABOUT ACCESS TO THE HAMMERS OR WHATEVER? DID THE STATE CLAI M THAT THE HAMMERS WERE INTENTIONALLY PLA CED , SO THAT HE WOULD HAVE E ASY ACCESS TO THOSE , AND THAT, REALLY, HIS P LAN WAS TO USE THE HAMMERS O N HER?

THE STATE DIDN'T DISPUTETHAT THERE WAS A HAMMER IN THE BEDR OOM. HOWEVER , THE STATE DID --

NOT DISPUT ING. I AM TALKING ABOUT , DID THE STATE CLAIM THAT THE PLANNING INC LUDED THIS DETAILED PLAN ON WHAT THE WEAPON WOULD BE AND HAV ING IT RIGHT THERE AND AVA ILABLE AND THAT THAT WAS PA RT OF HIS PLAN AND SCH EME A LLALONG?

THE STATE DIDN'T SAY THAT HAVING THE WEAPON THERE WAS PART OF THE PLAN AND SCHEME. HOWEVER, HE , OF COURSE , WOULD KNOW THAT THE WEA PO N IS IN THERE , IF THAT IS W ASTHERE FOR THE INN OCENT PURPOSE OF FI XING HIS BED , BUT CERTAINLY ONCE THE FI RST HAMMER IS TAKEN AWAY FROM CODAY AND HE GO ES FOR A SECOND AND A KNIFE , THAT DEFINITELY SHOWS ADDITIONAL PREMEDITATION, EVEN IF, LET'S SAY , M R. CODAY DIDN'T KNOW HE WAS GOING TO, YOU KNOW, ST RIKE DOME EZ WITH THAT HAMMER , THE INITIAL HAMMER, HE CERTAINLY COULD HAVE FORMED AN AD DITIONAL INTENT, IN ORDER WHEN HE WENT TO GET THE SE COND HAMMER AND THE KNIFE.

WAS THERE ANY EVIDENCE THAT HE WAS INJU RED ? SOMETIMES YOU HAVE THE M UTUAL COMBAT AND SOMETIMESYOU GET THE RAGE BECAUSE YOU GET HIT BACK OR SOM ETHINGLIKE. THAT WAS THERE ANY EVIDENCE THAT -- LIKE. THAT WAS THERE ANY EVIDENCE THAT HE WAS HIT B Y HER WITH THE HAMMER O R OTHERWISE?

THE BRUCING SHOULD HAVE BEEN GONE AT THAT TIME. HE DIDN'T COME BACK TO THE STATES FOR TH REE MONT HS.

HE WAS A PASSENGER ON THE AIRLINE.

NO ONE SAW ANY INJURIES ON HIM, AND I DON'T BELIEVETHERE WAS ANY BLOOD OR ANY EVIDENCE OF HIS BL OOD IN THE APARTMENT.HOWEVER, HIS C L OTHES WERE FULL OF BLOOD. THERE WAS PHYSICAL CON TACTBETWEEN THE TWO.

WELL, DOES THE STATE ACCEPT OR DO THEY ACCEPT AT TRIAL , THAT HIS GOAL IN GETTING HER THERE WAS TO HOPEFULLY HAVE HER BACK WITH HIM? IN OTHER WO RDS HIS GOAL WASN'T TO KILL HER .

I BEL IEVE THE ARGUMENT --

UNDER THE CIRCUMSTANCES OOCH THAT WAS THE L ASSO DITCH EFFORT. --

THAT WAS THE LAST-DITCH EFFORT. EITHER SHE CA ME BACK OR HE WAS GOING TO KILL HER. THOSE WERE THE TWO OP TIONS.

OR THE OTHER OPTION W ASHE WAS GO ING TO HAVE HER EITHER COME BACK OR HE W ASLEAVING FOR GERMANY TO KILL HIMSELF.

THAT WAS THE SELF-SERVING COMMENT, BU T, NO , THE STATE'S THEOR Y WAS THAT HE WAS L URING HER BACK THERE. THAT WAS THE WHOLE IDEA OF THE , THAT , THE CA NCER ARGUMENT .

IT SEEMS IN BOTH THE GERMANY CASE AND THIS ONE , THAT THERE WAS THE THR EAT OF SUICIDE ON HIS PART. IS THERE ANY INDI CATION , OTHER THAN THOSE TWO INCIDENCES, THAT HE MADE GESTURES OR EF FORTS TO COMMIT SUICIDE?

IN JAIL , WHAT , THREE , FOUR YEARS AFTER THE CRIME, THERE WAS A SUI CIDE ATTEMPT.

BEFORE THE CRIME. AFTER THE CRIME IN GERMANY OR AFTER THIS CRIME?

AFTER THIS CRIME.

BEFORE THE CRIME.

BEFORE THIS CRIME ? LET ME SAY NOT THAT I REC ALL THAT THERE WAS AN AC TUAL SUICIDE ATTEMPT.

YOUR OP PONENT REFERS TO A SUICIDE ATTEMPT THAT G REW OUT OF THE BREAK U P OF A DIVORCE OR ANOTHER RELATIONSHIP.

THAT'S CORRECT AND THATIS AFTER THIS PARTICULAR CRIME, A FEW YEARS AFTER THIS CRIME. THE DIVORCE PA PERS CAME THROUGH FOR T USCA AMARI, A NDAT THAT POINT , THAT THERE WAS A SUICIDE ATTEMPT. HOWEVER, JUST AS AN ASIDE , MR. CODA Y WOULD HAVE BEEN UNABLE TO MA RCH MARRY MS. GOMEZ, AND -- TO MARRY MS. GOMEZ AND THEY S POKE O F MARRIAGE TOWA RDS THE END. HE WAS MARRIED THE WHOLE TIME THAT HE WAS SE EING GLORIA GOMEZ , AND IF THE COURT WILL R E AD THE MANUSCRIPT THAT WAS WRITTEN IN EUROPE, H E TALKS ABOUT HER SEEKING MARRIAGE WITH OTHER MEN, BUT HE DOESN'TOFFER IT , SO THAT IS KNOWNTO HIM EARLY ON.

DO WE KNOW ANYTHING ABOUT HIS PREVIOUS MARRIAGES AND HOW HE MAY OR MA Y NOT HAVE REACTED WHEN THOSE MARRIA GES BROKE UP? HE WAS MARRIED BEFORE. AS I UNDERS TAND , HE WAS MARRIED TWICE.

TWO. TWO.

AT THE END OF THE FIRST ONE, DO WE HAVE ANYTHING I N OUR RECORD THAT TAL KS ABOUT HIS REACTION TO THE BREAK U P OF THAT MARRIAGE?

I DON'T BELI EVE WE HAVE ANY IMON Y AS TO HOW HE ACTUALLY REACTED TO THEBREAK UP OF THE FIRST MARRIAGE, BUT THAT , HIS FORMER, HIS FIRST WIFE DID IFY FOR HIM , AND --

SHE IS NOT THE ONE WHO TALKED ABOUT THE BED, IS SHE , THE HAMMER B E ING IN THE RO OM FOR THE BED PURPOSES?

THAT I AM A L I TTLE CONFUSED ON. HOWEVER, SHE IS THE ONE THAT SAID THAT HE O P ENED DOOR S TO HER. THE MOST BEAUTIFUL LIFE O F MUSIC AND ART AND SHE TALKED ABOUT HIM IN VERY OPEN AND GLOWING TERMS THAT HE WAS VERY GO OD TO HER. AND HE WAS GOOD TO H ERDAUGH TER.

THE SECOND WIFE WAS THE WOMAN IN NEW YORK?

THAT'S CORR ECT .

JUST A QU ICK ASIDE ON THE RING ISSUE. THIS IS A DI RECT APP EAL . THERE IS NO P R IOR VIO LENT FELONY, AND THERE IS A 9-TO-3 DEATH RECOMMENDATION. WAS THERE, I KNOW THERE W ASA REQU EST MADE FOR SOME SPECIAL INTERROGATORIES AT THE TIME THAT THE JU ROR QUESTIONS CAME OUT THAT THEY WONDERED IF THEY COU LD HAVE AN UNDECIDED V OTE. WAS THERE ANY REQUEST IN THIS CASE , THIS WAS DECIDED , I G UESS , POST RING? THAT ACTUALLY THE DECISION --

I BE LIEVE IT CAME OUT , THE FI NAL DECISI ON WAS , IT WAS POST APPR ENDI AND THE FINAL DECISION MAY HAVE BEEN JUST RIGHT AROUND THE TIME OF RING .

MUST HAVE BEEN , ACTU ALLY JULY 26, THE SENT ENCING ORDER . OF 2002.

THAT'S COR RECT.

IN ANY EVENT , WAS THERE A REQUEST FOR A SPEC IAL INTERROGATORY ON THE AGGRAVATING FACTORS? IN OTHER WORDS IS IT THE STATE'S CONTENTION THAT THE RING CLAIM WAS NOT PRESER VE D OR WAS PRESERVED?

THE F URMAN CLAIM WASN'T PRESERVED.AS FAR AS THE RING , THERE WERE ARGUMENTS THAT WERE MADE, AS FAR AS THE CONSTITUTIONALITY OF THEDEATH PENALT Y. THOSE, I DON 'T BELIEVE , ARE IN THE RECORD BECAUSE T HEY COULDN'T BE , THE COURT REPORTERS NOTES COULDN'T BE FOUND , BUT THE STATE ATTORNEY SA ID THAT WE HAD ARGUMENT ON THE SIXTH AMENDMENT CLAIMS, SO WE DIDN'T MAKE A PRESERVATION ARGUMENT. HOWEVER, THIS COURT HAS AFFIRMED IN BUTLER AND FOUND NO PROBLEM WITH HAC AS THE SOLE AGGRAV ATOR AND REJ ECTED THE RING .

IN OTHER WORDS THE IDEATHAT, IF , EVEN IF RING APPLIED, IT IS AL MOST THE ARGUMENT WOULD BE THAT T HEY MUST HAVE FOUND, THEY HAD TO FIND AT LEAST ONE AGGRAVATOR TO RECOMMEND THE DEATH PENALTY.

THEY FOUND HAC , BUT --

WE DON'T KNOW THAT THEY FOUND HAC.

THAT WAS THE ONLY AGGRAVATOR THAT WAS OF FERED.

OKAY.I THOUGHT YOU SAID THE C CP WAS ARGUED.

NO. NOT TO THE JURY .

OKAY .

CAN WE NOW DISCUSS THE HEAT OF PASSION.

HEAT OF PASSION. YES .

> THERE WAS NO HEAT OF PASSION. MR. CODAY 'S SELF-SERVING COMMENTS.

I GUESS THE REAL PRO BLEMI HAVE WITH THIS, AND YOU CAN FOCUS ME IN ON THIS, IS THAT, THERE IS A WHOLE LINE OF CASES THAT TALK ABOUT A JURY SHOULD BE INSTRU CTED O N A DEFENDANT'S THEORY OF DEFENSE , IF THERE IS ANY EVIDENCE THAT HAS BEEN SUBMITTED THAT WOULD SUPP ORT SUCH A THEO RY. AND SO IN T HIS CASE -- .

HIS THEORY OF DEFENSE WAS THAT THIS WAS SECOND-DEGREEMURDER. HIS THEORY OF DEF ENSE WASN'T --

BASED ON HEAT OF PASSION.

BASED ON HEAT OF P ASSION , AND HE WAS GIVEN THE HEAT OF PASSION INSTRUCTION IN THE BEGINNING, AND THE JU DGE TOLD THEM THAT THESE INSTRUCTS -- INSTRUCTIONS GO FOR FIRST-DEGREE , SECOND-DEGREE, MANSLAUG HTER, AND SO HE HAD A HEAT O F PASSION INSTRUCTION, WHICH WOULD HAVE, IF FOUND , NEGATED THE PREMED ITATION ATTEMPT. HOWEVER , IF IT WASN'T SUFFICIENT --

DID THE INSTRU CTION INSTRUCT THAT WAY , THAT THE HEAT OF PASSION NEGATES THE INTENT, OR DOES IT TALK I N TERMS OF EX CUSE A BLE?

IT TALKS IN T ERMS OF EXCUSEABLE. HOWEVER , YOU HAVE TO HAVE , AND I WILL GET THE EXACT WORDS FOR YOU , YOU N E ED TO HAVE A SUFFICIENT PROVOCATION, SO IF THE JURY FINDS THAT THIS IS N'T A SUDDEN OR SUFFICIENT PROVOCATION, THE JURY KNOWS THAT IT CA N GO DO WN TO SECOND-DEGREE, SO MR. CODAY WAS INSTRUCTED ON H ISDEFENSE, WHICH WAS THE DEFENSE TO FIRST- DEGREE MURDER. IT WOUL DN'T NECESSAR ILY JUST GO TO PLE MEDITATION, BUT HE WAS IN -- TO PREMED ICATION,BUT HE WAS INSTRUCTED ON A DEFENSE TO FIRST-DEGREE MURDER, WHICH IS WHAT HE W ASASKING FOR. I AM DEFE NDIN G MY SELF AGAINST FIRST-DE GREE. PLEASE FIND ME GU ILTY OF SECOND-DEGREE.THAT IS WHAT HE TO LD THE JURY IN OPENING AND IN CLOSING.

WHAT IS THE STANDARD INSTRUCTION THAT WAS ACTUALLY READ? W HAT DID IT ACTUALLY S AY?

THE WHOLE INSTRUCTION , SAYS A KILL ING OF A H UMAN BEING IS JUSTIF IABLE HOMICIDE AND LAWFU L , IF NECESSARILY DONE WHILE RESISTING AN ATTEMPT TO MURDER OR COMMIT A F ELONY UPON THE DEFENDANT OR TOCOMMIT A FELO NY IN ANY DWELLING HOUSE IN WHICH THE DEFENDANT WAS OR, WAS AT THE TIME OF THE KILLING. THE KILL ING OF A HUMAN BEING IS EXCUSEABLE , AND THEREFORE LAWFUL UNDER ANY ONE OF THE FOLLOWING THREE CIRCUMSTANCES . ONE , WHEN THE KILLING IS COMMITTED BY ACC IDENT AND MISFORTUNE UNION, IN DOING ANY LAWFUL ACT - - MISFORTUNE , IN DOING ANY LAWFUL ACT BY ANY ORDI NARY ME ANS WITH ORDINARY CAUTION AND WITHOUT ANY UNLA WFUL INTENT, OR, TWO , WHEN THE KILL ING OC CURS B Y ACCIDENT AND MISFORTU NE, IN THE HEAT OF PASSION , UPON ANY SU DDEN AND SUFF ICIENT PROVOCATION, OR, THREE, WHEN THE KILLIN G IS COMM ITTED P IE ACCIDENT OR MISF ORTUNE , RESULTING FROM A SUDDEN COMBAT, IF A DANGEROUS WEAPON IS NOT U SED AND THE KILLING IS NOT DONE IN A CRUEL AND UN USUAL MANNER. AND THEN, FROM THERE , THE COURT IS INSTRUCTING THAT THE JURY IS TO L OOK AT THE FIRST HIGHEST CRIME AND THEN IF THEY FIND ANYTHING THAT NEGATES THAT, TO LOOK TO THE NEXT HIGHEST CRIME, AND SO FORTH. SO IF THE JURY HAD - -

SO IF THE JURY FOUND HEAT OF PASSION, IT WOULD HAVE TO EXCUSE THE HO MICIDE AND FIND AM NOT GUILTY.

IF THE JURY FOUND THAT HE HAD SOME SORT OF HEAT OF PASSION BUT IT WASN'T SUFFICIENT, THEN IT WOULD LOOK FOR SECOND -DEGREE. IF THE JURY F OUND THAT HE WAS COMPLE TELY EXCUSED BECAUSE IT WAS, IT IS A COMPLETE DEFENSE THAT WAS SUFFICIENT, THAT, SOME GIRLFRIEND WHO BROK E UP WITH FIVE WEEKS BEFORE , T ELLS YOU I AM NOT IN LOVE WITH YOU AND THAT IS SOME SORT OF SUFFICIENT PRO VOCATION , THEN , OKAY, FINE, THEN YOU DON'T FIND HIM GU ILTY OF FIRST-DEGREE MURDER. HOWEVER, THAT HAS NE VER BEEN THE LAW. THAT ONE WOMAN TE LLING A MAN , THAT SHE IS NOT IN LOVE WITH HIM AND DOESN'T WANT TO SEE HIM, IS PROV OCATION FOR A KILLING.

THE INSTRUCTION THAT WAS REQUESTED, TALKS ABOUT LAWFUL PROVOCATION. EVEN IF SOME ONE SEES A , THEIR SPOUSE WITH AN OTHER PERSON IN A SE XUAL ACT, THA T IS STILL NOT LAWFUL , I MEAN , WHAT -- I MEAN, A LAWFUL PROVOCATION IS , REALLY , A MISNOMER, I SN'T IT?

DEFENSE OF OTHERS. YOU SEE YOUR C HILD IS BEING , HAS BEEN R APED OR SEXUALLY MOLESTED, YES , THAT IS, HAS BEEN FOUND TO BE HEAT O F PASSION , FINDING YOUR WIFE OR YOUR HUSBAND IN BED WITH ANOTHER , YES , THAT HAS BEEN --

WOULD YOU SA Y THAT IS NOT REALLY, IN THE TRUTH OF THE MATTER , THAT MA YBE SOCIETY'S TACIT APPROVAL IN THE PAST BUT IT REALLY ISN'T LAWFUL PROVOCATION.

BUT HA VING A GIRLFR IEND TELL YOU HAS NEVER BEEN , AND IN FACT THAT IS WHAT THIS COURT FOUND, I BELIEVE IT WAS INFE R HE WILL, WHERE A SINGLE -- IN FE HRAL , WHERE THE DEFENDANT HAD KILLED HIS EX-GIRLFRIEND AND A LAWFUL PROVOCATION HAD OCCURRE D .

DON'T YOU BELIEVE THAT THIS INSTRUCTION WOULD HAVE ONLY LED THE JURY TO EXCUSEABLE HOMICIDE NOT TO THIS IS SUE ABOUT FINDING SECOND-DEGREE IN THE CONTEXTOF THE WAY THE INSTRUCTION IS GIVEN?

I DON'T BELIEVE THAT IS WHAT THE COURT FOUND IN KILGORE. THE INSTRUCTION --

I AM NOT TALKING A BOUTWHAT THE COURT FOUND IN KILGORE OR WHATEVER. YOU HAVE READ US THE INSTRUCTION , AND IT IS SOLELY RE LATED , DID IT NOT, TO EXCUSEABLE HOMI CIDE.

IT RELATED TO EXCUSEABLE HOMICIDE, BUT IT, A LSO , DEFINED WHAT HEAT OF PASSIONWAS, AND IT DID HAVE TH OSE ADD VERBS OR ADJECTIVES , DISCUSSING THAT THERE HAS T O BE SUFFICIENT AND A SUDDEN PROVOCATION .

NEVER TOLD THE JURY THAT THE DEFENSE HERE , IS THAT THIS WAS JUST SECOND-DEGREE , AND IF YOU FIND THAT THE KILLING WAS DONE IN THE HEAT OF PASSION, THAT YOU C OULDFIND THAT IT WAS SECOND- DEGREE.

OVERALL, THAT IS WHAT THE INSTRUCTION SAID. IF YOU DON'T FIND THAT HE IS GUILTY OF THE FIRST CRIME, WHICH WOULD B E FIRST PREMEDITATED MU RDER, THEN YOU CAN LOOK AT SECOND.

CHIEF JUSTICE: WE CAN LOOK AT BOTH OF THE INSTRUCTIONS AND MAKE OUR DETERMINATION.YOUR TIME HAS EXP IRED . THANK YOU VERY MU CH.

THANK YOU AND I ASK YOU TO AFFIRM.

MR . ANDERSON .

FIRST OF ALL , JUS TICEWELLS, THE CASE THAT I THOUGHT I WAS LOOKING FOR , FOR PO INT SEVEN ON WHE TH ERYOU HAVE TO ACCEPT EXPERT IMONY , IS STATED IN THE BRIEF AS JOHNSON AT 6 60 AT 637. IN THIS CASE , I DISAGREE WITH THE APPELLEE ON WHAT THE EXPERTS IFIED TO. THEY WERE ALL IFIED TO BOTH ME NTAL MITIGA TORS EXISTING. IN FACT , TWO OF THE EXPERTS IFIED THAT, IF THEY HAD IFIED DURING THE GUILT PHASE, THEY WOULD HAVE S AID HE WAS INSANE AT THE TIME O F THE OFFENSE.

EVEN IF WE FIND THAT THE TRIAL COURT E RRED HERE , WHY WOULDN'T THAT BE HARM LESS , IN THE FACE OF THE , REALLY , SUBSTANTIAL AGGRAVATION IN THE FORM OF HAC THAT WE HAVEHERE?

BE CAUSE YOU WOULD HAVE TWO , IT WOULD BE LIKE , YOU KNOW , I G U ESS M Y PROPORTIONALITY POINT , I TALKED ABOUT FARI NA, AND THAT, THE FACTS HERE ARE KIND OF SIMILAR TO THAT , OBSESSION AND T RYING TO REUNITE WITH THE PERSON THEY LOVE, AND THAT INCLUDED HAC AND ANOTHER AGGRAVATING CIRCUMSTANCE , AND PROPORTIONAL IT Y , FAR INAS WAS NOT PROPOR TIONAL , AND I KNOW IT HAS BEEN AR GUED THAT IS A DOMESTIC CASE, BUT THIS COURT DID NOT JUST RELA TE ON THAT CASE.THERE WAS A RECENT ANALYSIS LOOKING AT THE HEAT OF PASSION INVOLVED IN THAT.

HO W DID THE EXPERTSCONNECT THE MEN TAL ILLNESS ES WITH THE OOH HOW DID THEY CONTACT THE MENTAL -- ILLNESSES WITH THE RA GE?

HOW DID THEY CONNECT THE MENTAL ILLNESSES?

HOW DID HE GE TS IN A FIT OF RAGE IF THE GIR LFRIEND TELLS YOU I DON'T LOVE YOU ANYMORE.

I THINK IT RELATES TO WHAT WE NT ON IN HIS HIS TORY, THE HISTORY OF HIM BELIEV ING THAT SHE REALLY , REALLY LOVED HIM BECAUSE HE HAD BEEN REASSURED BY HER MANY MANY TIMES THAT SHE DID , AND HE HAD PLANNED TO LIVE WITH HIS LI FE WITH HER, AND IT CAME AS KI ND OF A SUDDEN BLOW TO HIM THAT SHE HAD NEVER LOVED HIM. IT WAS MORE THAN JUST SA YING , YOU KNOW , I AM NOT GE TTING BACK TOGETHER WITH YOU.

MY POINT IS , OTHER T HAN THE FIRST STAT UTORY MITIGATOR , I AM TR YING T O RELATE IT TO THE SECOND ONE AND THAT IS REALLY THE O NEWE ARE ARGUING OVER. HOW DID THE EXPERTS CONNECT THAT TO THE INAB ILITY OR SUBSTANTIAL IMPAIRMENT OF THE AB ILITY TO CONTROL BEHAVIOR OR CONFORM IT TO THE LAW?

THEY TAL KED ABOUT A PSYCHOTIC B REAK WHEN SHE RELATED THAT SHE NEVER L OVEDHIM ,, WHICH THEN, RESU LT ED IN A DISSOCIATIVE STATE ON HIS PART , AND AS A RESULT OF THAT , HE WAS NOT , DIDN'T HAVE THE CAPA CITY T O CONFORM.

HOW DO WE EXCUSE T HECOMMENT INFRINGE, HOW DO WE SEPARATE THAT FROM T HECOMMENT HE JUST GOT MADATH AS HELL , FR OM THE W A Y THEY PUT IT, THE EXPERTS. WE CAN PUT FANCY TERMS ON IT , BUT I AM JUST TALKING ABOUT LAY WITNESSES , EXPERTS, H OWDO WE SEPARATE THE T WO ?

IF IS, I THINK IT I S BASED ON THEIR TOTAL HISTORY OF THE CASE AND THE TOTAL MENTAL ILLNESS. I MEAN, NO RMAL PE OPLE D ON'THAVE THE MENTAL ILLN ESSES AND PSYCHO TIC FEATURES THAT HE HAS LONG -TERM . AND THIS WENT BACK T O SOMEONE ASKED THE QUESTION OF WHEN WAS H E EXAMINED,THEN, AND I LO OKED FOR MY NOTES AND I STILL COULDN'T REFRESH ON THAT, BUT HE WAS EXAMINED BY PSYCHOLOGYITION S -- PSYCHOLOGISTS AND PSYCHIATRISTS IN THE LATE '70s AND THERE WAS EVEN SOME IMONY AS TO THE ' 80 s AND THESE FINDINGS HAVE BEEN CONSISTENT THROUGHOUT THE YEARS AS TO HIS MENTAL HEALTH.

CHIEF JUSTICE: MR . ANDERSON, WITH OUR HELP, YOUR TIME IS EXPIRED . THANK YOU TO BOTH OF YOU F ORYOUR RESPONSES TO OUR QUESTIONS, AND THIS COURT WILL TAKE ITS MORNING RECESS