THE NEXT
CASE ON THE DOCKET, WHICH IS
PONTICELLI VERSUS STATE OF
FLORIDA. 
WE HAVE A GROUP IN THE
COURTROOM. 
ARE YOU FROM DAYTONA BEACH
COMMUNITY COLLEGE? 
WELCOME. 
THIS IS THE STUDENT PARALEGAL
ASSOCIATION, AND WE WELCOME YOU
TO THE FLORIDA SUPREME COURT. 
PARTIES READY? 
GOOD MORNING. 
GOOD MORNING. 
LINDA McDERMOTT ON BEHALF OF
ANTHONY PONTICELLI. 
I WANT TO START TODAY BY
ISSUING THE BRIEF FROM THE
DENIAL OF THE 3.850 RELIEF, AND
THAT CONCERNS THE BRADY GIGLIO
VIOLATIONS THAT OCCURRED AT MR.
 PONTICELLI'S TRIAL. 
IN TERMS OF THE GIGLIO
VIOLATION, THE PRONGS THAT
FALLS TESTIMONY MUST HAVE BEEN
PRESENTED. 
THAT WAS FOUND BY THE LOWER
COURT AS TO THE QC TESTIMONY
REGARDING TONY PONTICELLI'S
DRUG USE ON THE EVENING OF THE
CRIMES AND AS TO THE TESTIMONY
BY THE WITNESSES FROM WEST
VIRGINIA, WHO TESTIFIED THAT
THEY HAD MET MR.  PONTICELLI ON
FRIDAY EVENING AND THAT THEY
HAD NOT USED DRUGS WITH HIM
THAT NIGHT OR BEFORE, WHICH WAS
FALSE, AND THEY HAD ACTUALLY
MET HIM THURSDAY EVENING AND
USED DRUGS WITH HIM THEN. 
SO THERE IS FALSE TESTIMONY IN
THIS CASE.  
ONE THING THAT THE JUDGE DIDN'T
CONSIDER WAS THE DENNIS FREEMAN
ISSUE, WHICH WAS WHETHER OR NOT
A DEAL HAD BEEN MADE, AND THAT
ISN'T CONSIDERED AT ALL BY THE
LOWER COURT. 
THAT WAS CERTAINLY SOMETHING
THAT CAME OUT OF THE
EVIDENTIARY HEARING AND THAT WE
ASKED OF THIS COURT AS WELL. 
JUSTICE: HAD THERE BEEN
SOMETHING IN THAT AREA OF THE
LAW SINCE THE TIME THAT THIS
CASE WAS ACTUALLY TRIED BACK IN
THE '80s, WITH REGARD TO WHAT
IS NECESSARY FOR THE STATE TO
DISCLOSE WHAT IS NECESSARY, TO
SHOW THAT A WITNESS HAS BEEN
INFLUENCED, NOT NECESSARILY BY
A CONTRACT OR AGREEMENT BUT WITH
REGARD TO; i.e., WE ARE GOING TO
HELP YOU AND THEN REJECTING IT
ON THE BASIS OF WHAT DON'T HAVE
A CONTRACT SO THEREFORE IT
CAN'T BE USED IN THAT FASHION. 
WHAT DO YOU THINK THE LAW IS
THERE, AND HOW DOES IT APPLY IN THIS CASE?
I THINK THE LAW IS VERY
CLEAR. 
AT THE TIME THAT THE U.S.
SUPREME COURT RELEASED BAGLEY,
IN THAT CASE THAT WAS ABOUT
WHETHER OR NOT THE WITNESS IN
THAT CASE HAD
RECEIVED A DEAL AND IN THAT
CASE THEY ACTUALLY HAD
CONTRACTS THAT WERE SIGNED FOR
MONEY BUT THE COURT IN THAT
CASE SPECIFICALLY SAID THAT THE
POSSIBILITY OF REWARD GIVES THE
WITNESS A DIRECT PERSONAL STAKE
IN THE CONVICTION, AND THE FACT
THAT THE REWARD IS NOT
GUARANTEED, SERVES ONLY TO
STRENGTHEN ANY INCENTIVE TO
TESTIFY FALSELY. 
JUSTICE: THAT IS THE
CONTRACT CASE. 
I AM TRYING TO SEARCH FOR WHEN
THE POINT IN TIME IT SEEMED TO
HAVE SHIFTED A LITTLE BIT TO
SAY YOU DON'T NEED THAT
CONTRACT AND A HOLDING LIKE
THAT. 
THE ISSUE IN BAGLEY WAS THAT THERE
WAS A CONTRACT POST POSITION
BUT THERE WAS ALSO A CONDITION
THAT THEY HAD NEVER BEEN PAID
AND THAT IS WHY THE BAGLEY
COURT WAS TALKING ABOUT IT
DOESN'T MATTER --
JUSTICE: YOU THINK IT WAS
ESTABLISHED FROM THERE. 
IT DOESN'T MATTER THAT THERE
WAS NO DEAL, IN THIS CASE THE
PROSECUTOR SAYING I DON'T THINK
HE GOT ANYTHING, THAT DOESN'T
MATTER BUT WHAT MATTERS IS WHAT
THE WITNESS INTERPRETS THAT HE
MAY GET. 
IN BAGLEY THEY CLEARLY
RECOGNIZED THAT THERE IS A FACT
THAT NO CERTAIN AGREEMENT CAN
ACTUALLY BE MORE DANGEROUS THAN
WHEN YOU HAVE AN AGREEMENT
SAYING THIS IS WHAT YOU ARE
GOING TO GET AT YOUR
SENTENCING, SO I THINK THAT THE
LAW IS VERY CLEAR IN 1988, AT
THE TIME OF MR.  PONTICELLI'S
TRIAL, THAT WHAT THE PROSECUTOR
DID HERE, PROMISING THAT SHE
WOULD RECOMMEND LENIENCY BEFORE
MR.  FREEMAN'S JUDGE, WAS
ABSOLUTELY SOMETHING THAT
SHOULD HAVE BEEN DISCLOSED TO
DEFENSE COUNSEL, AND DEFENSE
COUNSEL HIMSELF, AT THE
EVIDENTIARY HEARING, TESTIFIED
THAT, AS A DEFENSE ATTORNEY IN
MY PERSPECTIVE, ABSOLUTELY THAT
SHOULD HAVE BEEN TURNED OVER TO
ME AND I WOULD HAVE USED THAT. 
THAT WAS IMPORTANT IMPEACHMENT
EVIDENCE THAT I SHOULD HAVE
HAD. 
JUSTICE: A LOT OF ARGUMENTS.
YOU HAVE ANSWERED WHAT I
NEEDED. 
JUSTICE: WHAT DID THE
WITNESS ACTUALLY SAY HIS
UNDERSTANDING WAS OF WHAT THE
STATE WAS GOING TO DO ON HIS
BEHALF? 
FREEMAN DIDN'T TESTIFY AT
THE EVIDENTIARY HEARING. 
JUSTICE: SO WE DON'T HAVE
HIS PERSPECTIVE WHAT HE WAS
GOING TO GET, SO WHAT DO WE
KNOW ABOUT WHAT HE WAS GOING TO
GET? 
WHAT WE KNOW IS WE KNOW THAT
THE PROSECUTOR SPOKE TO HIS
LAWYER AND TOLD HIM THAT SHE
WOULD RECOMMEND FAVORABLE
TESTIMONY BEFORE THE JUDGE IN
HIS CASE, JUDGE STURGIS, AND
SHE SPECIFICALLY SAYS I WON'T
DO ANYTHING ON THE RECORD
BEFORE HIS TESTIMONY, BUT I
WILL COULD NOT TESTIFY ON HIS
BEHALF AND REQUEST FAVORABLE
TREATMENT FOR HIM. 
LET ME SPECIFICALLY, YOU
TALKED ABOUT RECOMMENDATION OF
LENIENCY, AND WHAT SPECIFICALLY
DID THE PROSECUTOR SAY SHE
WOULD DO? 
THE PROSECUTOR SAID --
OTHER THAN SAY TO THE JUDGE
THAT HE TESTIFIED ON BEHALF OF
THE STATE, AND HIS TESTIMONY
WAS HELPFUL. 
LET ME FIND THE QUOTE. 
JUSTICE: WHILE YOU ARE
LOOKING, BASICALLY CAN YOU
AGREE WITH WHAT I SAID, WHICH
WAS THE INFERENCE WAS THAT SHE
WOULD TELL THE JUDGE HE
TESTIFIED ON BEHALF OF THE
STATE AND ASSISTED THE STATE IN
PROVING THEIR CASE? 
NO. 
WHAT SHE SAYS IS I TOLD HIM I
WOULD MAKE NO FIRM OFFER PRIOR
TO THE DEFENDANT'S TRIAL BUT
ASSURED HIM HIS COOPERATION
WOULD BE REMEMBERED WITH FAVOR
BEFORE MITIGATING JUDGE
STURGIS. 
SHE IS NOT SAYING THAT SHE IS
GOING TO GO IN AND SAY HE DID A
GOOD JOB. 
SHE IS SAYING THAT HIS
COOPERATION WOULD BE REMEMBERED
WITH FAVOR, SO AND WHAT DID, IN
FACT, HAPPEN IS SHE SIGNS OFF
ON MR.  FREEMAN BEING RELEASED,
AND, FROM THE DEPARTMENT OF
CORRECTION CUSTODY, SO THERE
WAS, FROM THE JAIL, SO THERE IS
MORE GOING ON IN THIS THAN WHAT
SHE TESTIFIED TO AT TRIAL, BUT,
SO FREEMAN WAS NEVER, FREEMAN
IS A ISSUE THAT WAS NEVER
ADDRESSED IN THE CIRCUIT
COURT'S ORDER. 
GOING BACK TO THE ISSUE ABOUT
THE COCAINE USE --
CHIEF JUSTICE: BUT KEITH ACTUALLY TESTIFIED
FALSELY. 
RIGHT.  CHIEF JUSTICE: BUT WHAT
EVIDENCE IS THERE THAT THE
STATE KNEW THAT THAT WAS FALSE
TESTIMONY? 
WELL, HE TOLD THE STATE
ATTORNEY THAT MR.  PONTICELLI
HAD USED DRUGS THE NIGHT OF THE
CRIME, WITHIN AN HOUR OF THE
CRIME. 
HE HAD AN INTERVIEW WITH THE
STATE ATTORNEY AND SHE HAS
NOTES FROM THAT INTERVIEW. 
THE NOTES FROM THE INTERVIEW,
SHE IS WRITING DOWN WHAT HE IS
SAYING. 
PONTICELLI WAS MAKING PHONE
CALLS, AND THEN IT SAYS "DID
COKE". 
THAT IS HER ABBREVIATION FOR
COCAINE, AND THEN SHE CONTINUES
ON AND SAYS KEESEY SAYING I
TOLD HER, THEN THE NOTES SAYING
SOMEONE DID COKE, AND KEESEY
SAID I WAS TALKING ABOUT TONY. 
HE WAS ON THE PHONE MAKING
PHONE CALLS, AND HE WAS
DOING COCAINE. 
JUSTICE: HE HAD GREAT
RESPONSIBILITY FOR KNOWING
THESE THINGS HIMSELF, SO HELP
US WITH WHAT THE CASE LAW IS
WITH REFERENCE TO THAT ISSUE. 
THAT IS THAT, IF IT, OBVIOUSLY
IF IT APPEARS
THAT WE HAVE ANOTHER WITNESS
WHO WAS SAYING THAT THE
DEFENDANT WAS USING DRUGS OR
COCAINE OR ALCOHOL, WHATEVER
THE SUBSTANCE IS, AND THAT THAT
IS NOT DISCLOSED OR IT IS
ALLOWED TO BE TESTIFIED TO
UNDER CIRCUMSTANCES LIKE THIS,
IS THERE A LEGITIMATE BASIS TO
RELY ON THE FACT CLEARLY, THAT
THE DEFENDANT'S LAWYER KNEW
THAT THE CASE LAW IS FAIRLY
CLEAR. 
WHAT ABOUT THE ISSUE, OBVIOUSLY
IF THE DEFENDANT PARTICIPATED,
THE DEFENDANT SHOULD BE WRITING
A NOTE OR THE TRIAL JUDGE IS
REALLY SAYING THAT THE
DEFENDANT SHOULD BE WRITING A
NOTE TO HIS LAWYER, THAT THAT
IS WRONG. 
WE WERE TOGETHER DOING DRUGS OR
WHATEVER. 
SO I THINK YOU UNDERSTAND MY
QUESTION. 
WHAT IS THE LAW? 
WITH REFERENCE --
IF YOU CAN LOOK AT THE US
SUPREME COURT CASE LAW AND EVEN
THE CASE LAW FROM THIS COURT,
THERE IS CLEAR THERE IS NO
DILIGENCE REQUIREMENT. 
CASE LAW MAKES THAT CLEAR. 
IT IS NOT WHAT COUNSEL COULD
KNOW OR WHAT HE KNOWS. 
IT IS WHAT THE DEFENDANT KNOWS
IS IN EVIDENCE AND WHAT CAN
DEFENSE COUNSEL USE IN HIS
CASE? 
HE CAN'T USE MR.  PONTICELLI
SAYING KEESEY IS LIING IN HIS
CASE, BUT HE CAN USE THE
STATEMENT THAT KEESEY MAKES THAT SAYS DIDN'T YOU TELL THE
PROSECUTOR THAT PONTICELLI USED
DRUGS THAT NIGHT? 
AND THAT WAS BE IMPEACHMENT
EVIDENCE. 
JUSTICE: I THOUGHT WE HAD
VERY RECENT PRECEDENT ON THE
FACT THAT, IF THE DEFENDANT
KNOWS IT, THEN IT IS NOT A
BRADY VIOLATION. 
NO. 
JUSTICE: WE SAID THAT. 
IT IS NOT WHAT THE DEFENDANT
KNOWS. 
HE DIDN'T KNOW THAT KEESEY. 
JUSTICE: IF THE DEFENDANT
KNOWS IT, ISN'T THERE SOME
OTHER OBLIGATION HERE? 
IF YOU LOOK AT THE FACTS OF
THE CASES, LOOK AT BRADY FOR
EXAMPLE. 
BRADY IS ABOUT A DEFENDANT
SAYING I WAS INVOLVED IN THIS
MURDER, BUT MY CODEFENDANT DID
THE ACTUAL SHOOTING, AND HE
GOES TO TRIAL AND GETS
CONVICTED AND HE GETS THE DEATH
PENALTY N POSTCONVICTION, A
CONFESSION SURFACES FROM THE
CODEFENDANT, THAT HE WAS THE
ACTUAL KILLER! 
AND THE UNITED STATES SUPREME
COURT SAYS THAT THAT IS BRADY. 
IT DIDN'T MATTER THAT THE
DEFENDANT WAS SAYING ALL ALONG,
HE WAS THE SHOOTER. 
WHAT MATTERED WAS THAT THEY
ACTUALLY HAD EVIDENCE THAT HE
WAS THE SHOOTER, THAT THE
CODEFENDANT WAS THE SHOOTER. 
THAT WAS WHAT WAS THE BRADY,
AND IF YOU LOOK AT THE CASES OUT OF THIS COURT, YOUNG,
CARDONA, ROMANI, ALL BRADY CASES
WHERE THE DEFENDANT IS PRESENT
OR INVOLVED IN THE MURDER AND
THEY ARE USING A DEFENSE,
SELF-DEFENSE, INTOXICATION,
LESS THAN FIRST-DEGREE MURDER,
AND IN ALL OF THOSE CASES,
CERTAINLY THOSE DEFENDANTS KNEW
WHAT THEIR ACTIONS WERE. 
CHIEF JUSTICE: WELL, IN THIS
CASE WAS THE DEFENDANT SAYING
ALL ALONG THAT HE WAS USING
COCAINE? 
WELL, THE DEFENDANT, THE DAY
AFTER THE CRIME, TELLS JOHN
TURNER AND JOHN TURN HE WERE
TELLS TRIAL COUNSEL, THIS IS
TONY'S STORY. 
THAT YOU KNOW, HE --
CHIEF JUSTICE: WAS HIS
DEFENSE AT TRIAL THAT I WAS ON
A COCAINE HIGH? 
ABSOLUTELY. 
WAS IT A DEFENSE? 
IN OPENING STATEMENT, TRIAL
COUNSEL GETS UP AND SAYS THIS
IS A CASE ABOUT COCAINE
PSYCHOSIS. 
I AM GOING TO GIVE YOU
EVIDENCE. 
CHIEF JUSTICE: DID HE TELL
HIS LAWYER THAT HE HAD USED
COCAINE WITH THE WEST VIRGINIA
BOYS? 
DID HE TELL --
CHIEF JUSTICE: THAT IS THE
ISSUE ABOUT, I GUESS THAT I
THOUGHT THAT, WHERE THE
RESPONSIBILITY WAS, IS, DID HE,
DID THE LAWYER KNOW TO FOLLOW
UP OR SHOULD THE LAWYER KNOWN TO HAVE FOLLOWED UP, TO REALLY
ASK THE QUESTIONS TO THE WEST
VIRGINIA BOYS AND KEESEE, ABOUT
THE COCAINE USE? 
HE ASKS KEESEE ON DEPOSITION,
DID TONY PONTICELLI USE COCAINE
THAT NIGHT AND KEESEE SAYS NO. 
HIS NEXT QUESTION IS DID YOU
EVER TELL ANYONE THAT TONY
PONTICELLI USED COCAINE THAT
NIGHT AND HIS ANSWER IS NO. 
IN THE PROSECUTOR'S DEPOT
NOTES, SHE HAS NEXT TO THAT
UNDERLINED HE DIDN'T TELL
ANYBODY. 
AND SHE WRITES NEXT TO THAT,
"TOLD BM", WHICH IS BRUCE
MUNSTER, THE INVESTIGATOR, AND
"TAPED", WAS THERE A TAPED
STATEMENT OUT THERE? 
CHIEF JUSTICE: WAS THERE A
TAPED STATEMENT? 
WE DON'T KNOW. 
BECAUSE IT WAS NEVER MADE
AVAILABLE TO POSTCONVICTION
TRIAL COUNSEL. 
CHIEF JUSTICE: I THOUGHT
SOMEBODY SAID IF THEY HAD ASKED
ME DIRECTLY ABOUT THE COCAINE
USE, I WOULD HAVE ANSWERED. 
THE WITNESS SAID IF THEY HAD
CONFRONTED ME WITH MY
STATEMENT, I WOULD HAVE TOLD
THE TRUTH. 
CHIEF JUSTICE: HOW ABOUT THE
WEST VIRGINIA BOYS? 
THE WEST VIRGINIA BOYS WERE
THE SAME WAY, AND IT IS
INTERESTING BECAUSE IT GOES
BEYOND THE COCAINE ISSUE. 
THE SEQUENCE OF EVENTS THE WAY
THE STATE WANTS TO SET THE TIME LINE FOR THE NIGHT OF THE
CRIMES IS ENTIRELY BASED ON THE
WEST VIRGINIA BOYS AND THEIR
TESTIMONY AND WHEN TONY
PONTICELLI FORMED THE INTENT TO
ALLEGEDLY KILL THE VICTIM, SO,
BUT WHAT THEY SAY IS THEY SAY
THAT THEY HAD MET HIM THE NIGHT
BEFORE. 
THEY HAD USED COCAINE WITH HIM.
 THEY HAD THIS PARTY THAT WENT
ON TO THE EARLY MORNING HOURS
OF FRIDAY, AND SO THIS WHOLE
IDEA THAT THEY MET HIM FRIDAY
EVENING, THEY SEE HIM WHILE
THEY ARE WATCHING "SCARFACE". 
HE COMES BACK AND TELLS THEM HE
IS GOING TO KILL THE VICTIMS,
AND THEN HE COMES BACK AND
CONFESSES THAT THE WHOLE THING
CAN'T BE TRUE. 
IT CAN'T BE TRUE BECAUSE THEY
DIDN'T MEET HIM ON FRIDAY
NIGHT. 
THEY MET HIM ON THURSDAY NIGHT
ANTONE I PONTICELLI COULDN'T
HAVE BEEN AT THEIR HOME
WATCHING "SCARFACE" WITH THEM
AND VOICING AN INTENT TO KILL,
WHEN HE WAS ALREADY AT THE
VICTIM'S TRAILER. 
JUSTICE: WHAT DID THE STATE
KNOW ABOUT THAT FALSIFICATION? 
WHAT DID THEY KNOW? 
MUNSTER WAS TOLD BY FREEMAN AND
BY JOHN TURNER ABOUT THE PARTY,
AND --
JUSTICE: WHAT DID THE WEST
VIRGINIA BOYS KNOW ABOUT THE
TESTIMONY? 
BRUCE MUNSTER WAS TOLD THAT

THESE GUYS, THE WEST VIRGINIA
BOYS ON THURSDAY EVENING. 
SO HE KNEW ABOUT THAT AND HE
KNEW THAT THERE WAS A PARTY ANN
FREEMAN ONE ALSO TELLS HIM THAT
TONY HAD SAID THERE WAS A
PARTY, SO MONSTER --
JUSTICE: THIS GOES BACK TO
SOMETHING ELSE, NOT STATEMENTS
MADE BY FREEMAN TO THE WEST
VIRGINIA BOYS. 
THAT IS THE PROBLEM WITH
THAT, AND I JUST WANT TO POINT
OUT, I SEE I AM INTO MY
REBUTTAL, BUT THIS CASE WAS
ENTIRELY ABOUT THE ISSUE OF
WHAT WAS TONY PONTICELLI'S
STATE OF MIND AT THE TIME OF
THE CRIME, AND TRIAL COUNSEL AT
THE EVIDENTIARY HEARING, YOU
KNOW, SAYS, LOOK, THIS WAS A
CASE ABOUT COCAINE. 
I FILED THE NOTICE FOR INTENT,
THE INSANITY DEFENSE, THE
REQUEST FOR EXPERT WITNESSES,
ALL BASED ON THE FACT THAT I
WAS GOING TO BE USING THE FACT
THAT HE USED COCAINE IN MY
DEFENSE. 
AND WHAT THE STATE DID WAS THEY
COMPLETELY SANITIZED THE CASE. 
THEY MOVED TO KEEP OUT KEESEE'S
DRUG USE. 
THEY MOVED TO KEEP OUT THE
VICTIM'S TOXICOLOGY REPORTS
THAT SHOWED THAT THEY HAD DRUGS
IN THEIR SYSTEM, AND BASICALLY
SHE, THE PROSECUTOR ARGUED
REPEATEDLY TO THE COURT, ON,
EVERY TIME THAT ANYTHING CAME
UP ABOUT COCAINE, WE DON'T HAVE ANY EVIDENCE OF COCAINE. 
SHE KEPT --
JUSTICE: TWO DEFENSES ARE, I
THINK, EITHER THAT HE WAS
INSANE OR VOLUNTARILY
INTOXICATED. 
WITH THE EVIDENCE THAT YOU
HAVE, WERE YOU ABLE TO
ESTABLISH THAT, IF THEY HAD
HAD, THE DEFENSE COUNSEL HAD
THIS ADDITIONAL TESTIMONY, THAT
EITHER THE DEFENSE OF INSANITY
OR VOLUNTARY INTOXICATION WOULD
HAVE BEEN A VIABLE DEFENSE? 
YES. 
AT THE EVIDENTIARY
HEARING, DR.  BRANCH, TRIAL
COUNSEL, WHO WANTED TO TESTIFY
DURING TRIAL AND HE WAS
EXCLUDED BASED ON THE FACT THAT
THERE WAS NO BASIS FOR HIS
TESTIMONY, HE TESTIFIED, AND HE
TESTIFIED ABOUT COCAINE
PSYCHOSIS. 
HE IS THE ONLY ONE THAT
TESTIFIED --
JUSTICE: I AM NOT TALKING
DIMINISHED CAPACITY. 
I AM TALKING VOLUNTARY
INTOXICATION OR INSANITY. 
THE PROSECUTION ARGUED HE
WOULD HAVE USED THAT TO ARGUE
INSANITY AND AT THE TIME OF MR.
 PONTICELLI'S TRIAL, YOU WERE
ALLOWED TO ARGUE DIMINISHED
CAPACITY BUT ALL OF THE EXPERTS
AT THE EVIDENTIARY HEARING
TESTIFIED THAT THE DRUG USE WAS
WITHIN THE HOUR BEFORE THE
CRIMES, WOULD HAVE SUPPORTED A

JUSTICE: WHAT WAS THE
EVIDENCE OF THE DRUG USE WITHIN
THE HOUR OF THE CRIME THAT WAS
JUST AT THE HOME WITH KEESE? 
RIGHT. 
RIGHT. 
JUSTICE: THAT IS THE ONE. 
THAT WAS THE HOUR BEFORE THE
CRIME. 
YES. 
JUSTICE: WAS THERE ANY
EXPERT TESTIMONY AT EVIDENTIARY
HEARING THAT THAT WOULD HAVE
ESTABLISHED EITHER VOLUNTARY
INTOXICATION OR IN SAN SIT? 
YES. 
-- OR INSANITY? 
YES. 
DR.  HERKOFF SAID THAT IS THE
MOST IMPORTANT PIECE OF
EVIDENCE, THAT HE USED DRUGS
RIGHT BEFORE THE CRIME. 
CHIEF JUSTICE: I WANT TO
POINT OUT THAT YOU HAVE USED --

I WANT TO POINT OUT THAT THE
CASE WAS, UNDER HALLWORTH
BEFORE THIS COURT, IT CANNOT BE
BASED ENTIRELY ON SELF REPORT. 

THERE HAD TO BE SOME
CORROBORATION TO GIVE AN
OPINION ABOUT VOLUNTARY
INTOXICATION. 
THERE HAD TO BE SOME
CORROBORATION, SO TRIAL COUNSEL
COULD NOT HAVE HAD AN EXPERT,
EVEN IF TONY PONTICELLI HAD
COOPERATED WITH AN EXPERT AND
TOLD THEM I USE DRUGS BEFORE
THE TRIAL, HE COULDN'T HAVE
GOTTEN AN EXPERT ON THE STAND
UNDER THOSE CIRCUMSTANCES AT
THE TIME THE LAW WAS, HE NEEDED
PC IN ORDER TO GET AN EXPERT AT
THIS TRIAL AND HE DIDN'T HAVE
PC, AND HE DIDN'T HAVE THE WEST
VIRGINIA BOYS AND HE DIDN'T
HAVE FREEMAN, AND BASICALLY
UNDER GIGLIO, WE ARE LOOKING AT
WAS THIS A FAIR PROCEEDING, AND
WHAT WE SEE IN THIS CASE
RECEIVERY WITNESS, EVERY
CRITICAL WITNESS TALKING ABOUT
DRUG USE, LIED. 
EVERY WITNESS ABOUT
PREMEDITATION, WHO SUBSTANTIATES ANYTHING
ABOUT PREMEDITATION, LIED. 
THERE COULD HAVE BEEN SOME
ELEMENTS THAT HAPPENED OR
DIDN'T HAPPEN BUT THE BOTTOM
LINE IS THE JURY DIDN'T GET TO
HEAR ANY OF THIS EVIDENCE
TESTED. 
THEY DIDN'T GET TO HEAR A
VOLUNTARY INTOXICATION DEFENSE,
AND THEY DIDN'T GET TO HEAR
THAT MR.  PONTICELLI WAS INSANE
AT THE TIME OF THE CRIME. 
I WOULD LIKE TO RESERVE THE
REST OF MY TIME FOR REBUTTAL. 
CHIEF JUSTICE: THANK YOU. 
MAY IT PLEASE THE COURT. 
I AM KEN NUNNELLEY. 
I REPRESENT THE STATE OF
FLORIDA IN THIS PROCEEDING. 
JUSTICE BELL, IF I COULD START
IN RESPONSE TO YOUR QUESTIONS
ABOUT KEESE AND THE DRUG USE
IMMEDIATELY BEFORE THE CRIME. 
MR.  KEESE TESTIFIED AT THE
EVIDENTIARY HEARING THAT THEY
USED ONE MATCH STICK-SIZED LINE
OF COCAINE. 
THAT IS HIS DESCRIPTION NOT
MINE, AND THAT WAS APPARENTLY
BETWEEN THE TWO VICTIMS, THE
GRANDINETTI BROTHERS AND THE
DEFENDANT, AND I BELIEVE THE
EVIDENCE AT THE EVIDENTIARY
HEARING, WILL BE THAT, GIVEN
MR.  PONTICELLI'S EXPERIENCE
WITH COCAINE, THAT THAT AMOUNT
OF POWDER COCAINE WOULD NOT
HAVE MADE MUCH DIFFERENCE TO
MR.  PONTICELLI. 
JUSTICE: WHAT ABOUT THE
TESTIMONY THAT THERE WAS
EXTENSIVE PARTYING, AND
PARTYING IN THE CONNOTATION
THAT EXTENSIVE DRUG USE
PARTYING IS GOING ON A FULL DAY
BEFORE THE WITNESSES ACTUALLY
ACCOUNTED FOR THAT IN THEIR
TESTIMONY AT TRIAL? 
THAT IS THAT, AS OPPOSED TO
ANYTHING, RELATIONSHIP STARTING
JUST SHORTLY BEFORE THE
OFFENSE, THAT THEY HAD BEEN
PARTYING ALL NIGHT AND USING
DRUGS DURING THAT PARTYING. 
WELL, JUSTICE ANSTEAD, I
DON'T MEAN, I AM NOT TRYING TO
DEFLECT QUESTION BUT THE ANSWER
TO THAT IS THAT THE TESTIMONY
AT TRIAL PROVED THE WITNESS
JOSEPH LEONARD WAS THAT HE AND
MR.  PONTICELLI HAD BEEN ON A
THREE OR FOUR-WEEK-LONG COCAINE
RUN, WHERE THEY HAD BEEN USING
COCAINE EVERYDAY, ALL DAY, ALL
NIGHT, GO TO BED AT THREE
O'CLOCK IN THE MORNING, WAKE UP
AT EIGHT O'CLOCK AND GO GET
MORE COCAINE! 
JUSTICE: WHAT ABOUT THE
SPECIFICS, THOUGH, A COUPLE OF

DAYS PRECEDING THE ACTUAL
EVENT? 
WAS THERE, IN OTHER WORDS YOUR
OPPONENTS ARE SUGGESTING TO US
THAT THERE REALLY WAS A
MISLEADING OR FALSE PICTURE
PAINTED, IN TERMS OF THE DRUG
USE IN THE 24 HOURS PRECEDING
THIS OFFENSE? 
THAT IT APPEARED AT TRIAL NONE
OF THAT CAME OUT AT TRIAL,
WHEREAS THE REALITY WAS THAT HE
AND A NUMBER OF THESE WITNESSES
THAT TESTIFIED AT TRIAL,
ACTUALLY HAD BEEN CONSUMING
DRUGS IN THE 24-HOUR PERIOD
EXTENSIVELY IN THE 24-HOUR
PERIOD, IMMEDIATELY PRECEDING
THESE OTHER EVENTS THAT LED
IMMEDIATELY TO THE CRIME. 
WELL, THE VERSION THAT WE
HAVE NOW THAT IS FROM THE
EVIDENTIARY HEARING, IS THAT
THE THANKSGIVING EVENING
COCAINE PARTY THAT IS,
APPARENTLY WITH THE WEST VIRGINIA BOYS, IS WHAT
THEY HAVE COME TO BE CALLED,
ENDED BEFORE DAYLIGHT OR AROUND
DAYLIGHT, MR.  PONTICELLI WENT
HOME. 
THERE IS NO TESTIMONY TO
SUPPORT THE NOTION THAT MR. 
PONTICELLI WAS USING DRUGS IN
THE TIME PERIOD BETWEEN THE END
OF THE PARTY, CALL IT EIGHT
O'CLOCK, AND THE TIME THAT HE
TURNS UP AT THE GRANDINETTI'S
TRAILER, WHICH IS EIGHT O'CLOCK
IN THE EVENING, WITH THE
EXCEPTION OF KEESE, AND I THINK
WE CAN ALL AGREE THAT A MATCH
STICK SPLIT THREE OR FOUR WAYS
ISN'T GOING TO MAKE A WHOLE LOT
OF DIFFERENCE TO MR. 
PONTICELLI. 
JUSTICE: IS IT CORRECT THAT
THE THANKSGIVING EVE DRUG PARTY
AND THE EXTENSIVE USE THERE,
DID NOT COME OUT AT TRIAL? 
THAT SPECIFIC TESTIMONY DID
NOT COME OUT AT TRIAL. 
I WOULD ALSO POINT OUT,
HOWEVER, THAT BASED UPON WHAT
WE HAVE IN THE EVIDENTIARY
HEARING, THERE IS NO TESTIMONY
TO SUPPORT MR.  PONTICELLI'S
DRUG CONSUMPTION AT THE
THANKSGIVING EVENING PARTY. 
THE TESTIMONY THAT HE WAS
THERE, TESTIMONY THAT HE WAS
GETTING THE COCAINE, AND THERE
IS TESTIMONY THAT HE WAS
COOKING THE COCAINE UP, BUT I
BELIEVE THE RECORD WILL BEAR
OUT THAT THERE IS NOT ANY
TESTIMONY THAT MR.  PONTICELLI
WAS SMOKING MORE THAN HIS SHARE
OR EVEN HIS SHARE AT ALL. 
JUSTICE: SO THE
POSTCONVICTION HEARING
TESTIMONY WILL NOT BEAR OUT
THAT HE WAS PARTICIPATING IN
HEAVY DRUG USE THAT DAY OR
EVENING. 
IN OTHER WORDS THE THANKSGIVING
DAY BEFORE? 
I THINK THE WAY I WANT TO
ANSWER THAT QUESTION, JUSTICE
ANSTEAD, THAT THE TESTIMONY
THAT WAS PUT IN AT TRIAL
THROUGH LEONARD AND I BELIEVE
TURNER, WHOSE FIRST NAME I
CAN'T REMEMBER, WAS ABOUT

EXTENSIVE HEAVY CONTINUES
COCAINE USE FOR THREE-TO-FOUR
WEEKS UP TO THE MURDER, AND IF
YOU HAVE THAT ALREADY OUT
THERE, THE QUESTION BECOMES
WHAT REAL DIFFERENCE FROM A
MATERIALITY STANDPOINT,
AND I AM JUMPING
PAST BRADY, BUT FOR THE SAKE
OF 15 MINUTES LEFT, IF YOU PUT
THE WHOLE THING IN CONTEXT, WHAT YOU HAVE IS
MR.  PONTICELLI USING DRUGS
HEAVILY NO, QUESTION ABOUT IT,
AND THEN YOU HAVE THE WEST
VIRGINIA BOYS WHO COME IN YEARS
LATER AND SAY YEAH, WE WERE
DOING COCAINE WITH HIM AT THE
HOUSE THANKSGIVING EVENING,
ROLLING INTO THE MORNING AFTER
THANKSGIVING. 
JUSTICE: WHAT WAS THE ISSUE,
I AM HAVING A LITTLE BIT OF
DIFFICULTY, IF YOU ARE SAYING
THERE ALREADY WAS EXTENSIVE
TESTIMONY TO CORROBORATE HIS
DRUG USE, THEN WHAT WAS THE
ISSUE ABOUT THE EXPERT WITNESS
NOT BEING ALLOWED TO EXPRESS
OPINIONS ABOUT THE EFFECT OF
THE DRUG USE ON HIM, BECAUSE IT
WAS ONLY SELF REPORTING? 
WELL --
JUSTICE: IN OTHER WORDS
WASN'T THERE AN ISSUE THAT THE
EXPERT'S TESTIMONY WAS EXCLUDED
BECAUSE IT WAS ONLY SELF
REPORTING ABOUT THE DRUG USE? 
DR.  BRANCH'S TESTIMONY WAS
EXCLUDED. 
DR.  BRANCH IS NOT A CLINICAL
PSYCHOLOGIST. 
HE IS NOT A PSYCHIATRIST. 
HE IS A RESEARCHER DOING
RESEARCH INTO THE EFFECTS OF
COCAINE USING RATS AND SQUIRREL
MONKEYS AND PIGEONS, I THINK IT
IS. 
JUSTICE: THAT WAS EXCLUDE ON
THE BASIS OF QUALIFICATIONS AND
NOT ON THE BASIS OF AN ADEQUATE
PREDICATE? 
I BELIEVE THAT IS CORRECT,
JUSTICE ANSTEAD. 
I AM WRESTLING A LITTLE BIT
WITH HOW THAT WORKED. 
JUSTICE: WE HEARD FROM YOUR
OPPONENT IN THE DIRECT
PRESENTATION TO US, WAS THAT
THERE WAS ONLY THE SELF
REPORTING, AND THAT THERE WAS
NOT THE CORROBORATION SUCH AS
WOULD BE PROVIDED BY THE WEST
VIRGINIA BOYS OR WHATEVER. 
WELL, JUSTICE ANSTEAD, I CAN
ANSWER THAT QUESTION FOR YOU
UNEQUIVOCALLY, BECAUSE THE, IT
IS IT NOT SELF REPORTING,
BECAUSE THERE WAS NO SELF
REPORTING BY MR.  PONTICELLI,
BECAUSE HE WAS DENYING DRUG USE
TO EVERYBODY.
SO THAT CAN'T BE THE REASON IT
WAS EXCLUDED. 
THE RECORD IS, I AM A LITTLE
FUZZY ON THE RECORD AS TO THAT,
BUT MY RECOLLECTION IS THAT
THERE WAS NOT A SUFFICIENT
PREDICATE THAT TIED DR. 
BRANCH'S WORK, DR.  BRANCH'S
RESEARCH INTO WHAT HE WAS
TRYING TO TESTIFY ABOUT. 
JUSTICE: WOULDN'T YOU HAVE
TO AGREE THAT, IF YOU HAD

TESTIMONY FROM MR.  KEESE OR
THE VIRGI KNOW YEAH BOYS THAT
SAY THAT -- FROM THE VIRGINIA
BOYS THAT SAY THAT MR. 
PONTICELLI WAS IN FACT
INGESTING COCAINE IN THE HOUR
OR HOURS BEFORE THIS MURDER,
THAT THEN DR.  BRANCH'S
TESTIMONY BECOMES MORE
RELEVANT? 
AND WOULD NOT BE EXCLUDED
BECAUSE IT WAS SELF-REPORTING. 
WELL, THERE ARE THREE ANSWER
TO SAY THAT QUESTION, JUSTICE
QUINCE. 
FIRST OF ALL, WE DON'T KNOW
WHAT HAPPENED IN THE CAR AFTER
MR.  PONTICELLI LEFT THE
GRANDINETTI'S RESIDENCE. 
THERE ARE THREE PEOPLE THAT
KNOW AND TWO OF THEM ARE DEAD. 
SECONDLY, AT THE PENALTY PHASE,
COUNSEL BACKED UP AND USED DR. 
MILLS, WHO TESTIFIED BASED ON A
SERIES OF HYPOTHETICALS, ABOUT
THE EFFECT OF COCAINE ON AN
INDIVIDUAL, AND THE REASON THAT
COUNSEL HAD TO USE THE
HYPOTHETICALS, RATHER THAN
DIRECT QUESTIONS OR DIRECT
EVIDENCE BASED UPON DR.  MILLS'
EVALUATIONS OF MR.  PONTICELLI,
WAS THAT PONTICELLI KEPT
TELLING EVERYBODY THAT HE
WASN'T DOING DRUGS! 
HE HAD REPEATEDLY DENIED DRUG
USE. 
THERE WERE THREE DOCTORS
INVOLVED. 

IT WAS A COMPETENCY ISSUE THAT
CAME UP PRIOR TO THIS. 
CHIEF JUSTICE: I ASKED
MS.^McDERMOTT THAT ISSUE, WHICH
WAS DID HE ADMIT THAT HE WAS
USING COCAINE OR NOT? 
NOW YOU ARE SAYING THAT HE
DENIED IT. 
SHE SAID, NO, THAT WAS THEIR
DEFENSE, SO WHAT, WHICH IS IT? 
IF YOU GIVE ME JUST A MOMENT,
I WILL GIVE YOU THE RECORD
CITATIONS. 
AT RECORD 1147, DR.  KROP'S
REPORT, DR.  KROP STATES THE
DEFENDANT MINIMIZED HIS DRUG
USAGE.  
RECORD 1156, DR.  MATRA, PONTICELLI REPORTS TO
MATRA THAT HE HAD NOT USED
DRUGS FOR THE FOUR MONTHS
PRECEDING THE MURDERS. 
RECORD 1161, DR.  POETER
DIAGNOSIS MR.  PONTICELLI AS
SUFFERING FROM SUBSTANCE ABUSE
IN REMISSION. 
THERE IS NO SUGGESTION IN THE
REPORT OR IN THE RECORD,
RATHER, THAT THE SUBSTANTIAL
ABUSE IN REMISSION DIAGNOSIS
WAS BASED UPON THE FACT THAT
MR.  PONTICELLI WAS LOCKED UP. 
CHIEF JUSTICE: I THOUGHT YOU
SAID IT CAME OUT AT TRIAL THAT
FOR THE THREE MONTHS BEFORE, HE
WAS ON A COCAINE HIGH. 
HE DID. 
THAT IS WHERE WE HAVE THESE --
CHIEF JUSTICE: WHO PUT THAT
EVIDENCE IN? 
THE STATE. 
THE STATE. 
WHEN THEY CALLED JOSEPH LEONARD
TO TESTIFY. 
CHIEF JUSTICE: THE STATE
WANTED TO SHOW THAT HE WAS
DOING, THAT HE WAS DOING
COCAINE? 
I DON'T KNOW IF THE STATE
CARED IF THEY SHOWED THAT HE
WAS DOING COCAINE OR NOT. 
CHIEF JUSTICE: WHY DID THEY
PUT ON EVIDENCE THAT FOR THE
THREE MONTHS OR FOUR MONTHS
BEFORE THAT HE WAS DOING
COCAINE? 
I AM NOT SURE WHAT THE
RATIONALE FOR THE EVIDENCE
BEING PUT ON WAS, BUT IT CAME
ON, IT WAS PUT IN IN CONNECTION
WITH JOSEPH LEONARD, WHO BY THE
WAY SUPPLIED THE MURDER WEAPON
TO THE DEFENDANT, WITH HIS
TESTIMONY. 
CHIEF JUSTICE: THIS IS,
THERE IS SOME DISCONNECT HERE,
BECAUSE IF YOU AGREE --
I AGREE. 
CHIEF JUSTICE: FOR WHATEVER
REASON, THAT KEESE, BURGESS AND
BROWN TESTIFIED FALSELY AT
TRIAL BY DENYING COCAINE USE. 
THAT IS WHAT THE TRIAL JUDGE
WHO HEARD THE EVIDENCE AND SAW
THE WITNESSES TESTIFY FOUND. 
CHIEF JUSTICE: DID THEY
EITHER ADMIT TO COCAINE USE AT
THE TIME OF TRIAL OR DID THEY
DENY COCAINE USE? 
THEY ULTIMATE, AT THE TIME
OF THE TRIAL, THEY DENIED
COCAINE USE. 
CHIEF JUSTICE: OKAY. 
SO --
AT THE EVIDENTIARY HEARING,
THEY SAID THEY WERE USING
COCAINE AND CAME UP WITH A --
HAVE
CHIEF JUSTICE: AND THE JUDGE
FOUND THAT WAS FALSE TESTIMONY.
NOW, THE QUESTION IS,EVEN
THOUGH YOU HAVE GONE TO THE
THIRD PRONG OF BRADY OR THIRD
PRONG OF GIGLIO, IS WHAT THE
STATE KNEW. 
MS.^McDERMOTT IS TAKING THE
POSITION THAT THE STATE HAD AN
INTEREST IN SANITIZING THIS TRIAL TO
MAKE SURE THAT IT LOOKED LIKE
NOBODY WAS DOING COCAINE. 
YOU ARE SAYING THAT, NO, IT WAS
ALL OVER THE PLACE, SO I AM
TRYING TO FIND OUT DID THE
STATE KNOW THAT KEESE HAD
ADMITTED TO COCAINE USE? 
THE TRIAL COURT'S FINDINGS,
AND I, WELL, I HAVE GOT TO RELY
ON THE TRIAL COURT'S FINDINGS,
BUT IF YOU REVIEW THE NOTES AT
ISSUE, I DON'T WANT TO GET INTO
THE, HE SAID/SHE SAID ISSUE
ABOUT WHAT THEY SAY, BUT I
WOULD SUGGEST TO THE COURT THAT
THOSE NOTES THAT HAVE BEEN
REPRESENTED TO THIS COURT AS
BEING UNEQUIVOCAL RED FLAGS
WAVING AND ROCKETS GOING OFF
ABOUT WHAT THE STATE KNEW, ARE
NOT ANYWHERE NEARLY SO DIRECT. 
THE NOTES ARE SUBJECT TO
INTERPRETATION. 
PROSECUTOR'S MEMORY AS TO WHAT
THOSE NOTES WERE IS SOMEWHAT
FAULTY. 
THE INTERPRETATION, I BELIEVE,
AND I THINK MY OPPONENT'S
ARGUMENT BEARS THIS OUT,
DEPENDS UPON ONE'S PERSPECTIVE
OF THE CASE. 
AND I WOULD SUGGEST THAT, WHEN
THE EVIDENCE IS VIEWED IN THE LIGHT
MOST FAVORABLE TO THE
PREVAILING PARTY, WHICH IS WHAT
THE COURT DETERMINES, SHOULD BE
HELD IN SUPPORT OF THE GIGLIO
CLAIM. 
CHIEF JUSTICE: YOU ARE NOT
GIVING AN ANSWER. 
I AM SORRY. 
I AM TRYING. 
CHIEF JUSTICE: WHETHER THE
STATE AT THE TIME OF THE TRIAL
WANTED TO PORTRAY THIS AS NOT
INVOLVING COCAINE USE BY EITHER
MR.  PONTICELLI OR EVERYONE
CONNECTED WITH HIM OR THEY DID
WANT THAT TO COME OUT? 
WELL, JUSTICE PARIENTE, I
DON'T KNOW WHAT THE STATE'S
THEORY WAS. 
I DON'T KNOW. 
I WASN'T THERE. 
I WASN'T PRACTICING LAW IN
FLORIDA WHEN THIS CASE WAS
TRIED, BUT I CAN TELL YOU THIS.
JUSTICE: FROM THE RECORD AND
THE TRANSCRIPTS, ISN'T IT CLEAR
THAT THE STATE WANTED TO
PORTRAY THIS AS A COLD, SOBER,
DELIBERATE, I MEAN THIS WAS A
HORRIBLE EXECUTION KILLING OF
TWO PEOPLE, AND THE STATE WAS
ATTEMPTING TO PORTRAY THIS AS A
COLD AND DELIBERATE,
UNAFFECTED, REALLY, BY COCAINE
USAGE OR WHATEVER, AND IT WAS
THAT THE DEFENSE LAWYER DID
ARGUE TO THE JURY, TO THE
CONTRARY. 
WASN'T IT THE STATE'S POSITION
THAT, NO, THIS WASN'T SOMETHING
INFLUENCED BY DRUG USAGE.  IT WAS A COLD, CALCULATED
EXECUTION-STYLE KILLING,
UNAFFECTED BY THE USE OF DRUGS.
 ISN'T THAT, THAT WAS THE
STATE'S POSITION AT TRIAL, WAS
IT NOT? 
IN A NUTSHELL, PROBABLY SO. 
BUT THE RECORD REFLECTS THAT
COCAINE IS, JUSTICE ANSTEAD,
COCAINE IS TALKED ABOUT
THROUGHOUT THIS RECORD, AND I
MEAN LITERALLY. 
LITERALLY! 
JUST ABOUT ON EVERY --
JUSTICE: IN OTHER WORDS,
THIS IS A GROUP OF PEOPLE
APPARENTLY, THAT IS HEAVILY
INVESTED IN THE SELLING AND
MARKETING OF DRUGS, AND DRUGS
WERE ALL OVER THE PLACE IN THAT
CONTEXT. 
IS THAT CORRECT? 
WELL, JUSTICE, YOU HAVE GOT
PEOPLE USING COCAINE, SELLING
COCAINE, TALKING ABOUT USING
COCAINE, TALKING ABOUT SELLING
COCAINE AND TRYING TO GET MORE
COCAINE ON EVERY SINGLE PAGE OF
THE RECORD OF THIS TRIAL, AND
IT IS 2000 SOME-ODD PAGES,AS I
RECALL. 
THIS IS A TYPICAL DRUG CASE. 
YOU HAVE GOT A BUNCH OF PEOPLE
INVOLVED. 
YOU HAVE GOT A SCENE SPREAD OUT
ALL OVER THE PLACE AND ALL OF
THAT, BUT --
JUSTICE: IS THERE A
DIFFERENCE IN THE RECORD WHEN
YOU HAVE COCAINE ALL OVER THE
PLACE, AS YOU SAID, ABOUT
SELLING AND USING, BUT WHEN YOU
GET DOWN TO SPECIFICS, ISN'T
THAT WHEN THE STATE REALLY
MAKES THE ARGUMENT TO EXCLUDE
PARTICULAR EVIDENCE, AND SO
WHEN YOU GET DOWN TO SPECIFICS
AND THIS PERSON USING AND THE
DEFENDANT USING AND THOSE KINDS
OF THINGS, IT IS REALLY
DIFFERENT FROM SAYING, OH,
WELL, FOR THE LAST THREE WEEKS
THE DEFENDANT AND HIS FRIENDS
WERE OFF ON A COCAINE BINGE. 
BUT JUSTICE QUINCE, WE ARE
STILL TALKING ABOUT ONE MATCH
STICK-SIZED LINE OF COCAINE
THAT KEESE IS TALKING ABOUT. 
JUSTICE: YOU CAN SEE THE
SEMBLANCE OF EFFECT OF THE
TESTIMONY OF KEITH AND THE WEST
VIRGINIA BOYS, ONE MATCH STICK
SIZE OF COCAINE? 
IF WE ARE TALKING ABOUT DRUG
USE IN THE COUPLE OF HOURS
IMMEDIATELY PRECEDING THE
MURDERS, YES, MA'AM, IT IS. 
THAT IS WHAT WE ARE TALKING
ABOUT. 
SO THE WEST VIRGINIA BOYS
WERE ONLY TALKING ABOUT COCAINE
USE ON THE THANKSGIVING DAY
PARTY.
YES, MA'AM. 
THEY HAD NO EVIDENCE OF ANY
COCAINE USE ON THE DAY OF THE
MURDER. 
THAT IS CORRECT. 
I DO NOT REMEMBER OFF THE TOP
OF MY HEAD, IF THEY MAY HAVE
HAD EVIDENCE ABOUT COCAINE USE
AFTER THE MURDER. 
I AM NOT COMPLETELY CLEAR ABOUT
THAT. 
JUSTICE: WE ARE TALKING
ABOUT BEFORE THE MURDER ON THE
SAME DAY OF THE MURDER, THE
WEST VIRGINIA BOYS HAD NO
TESTIMONY TO THAT EFFECT. 
NOT AFTER APPROXIMATELY
EIGHT O'CLOCK THAT MORNING, NO,
MA'AM, ABSOLUTELY NOT. 
JUSTICE: YOU HAVE KEESEE 
THAT IS WHAT THE RECORD
SHOWS. 
THAT IS WHAT YOU ARE
PRESENTING TO US. 
CHIEF JUSTICE: LET'S TALK
ABOUT THE ISSUE OF FREEMAN AND
THE ISSUE ABOUT WHETHER
SOMETHING WAS OFFERED TO
FREEMAN THAT WASN'T DISCLOSED
TO THE DEFENSE, AND THIS IS
ALWAYS A DIFFICULT SITUATION,
BECAUSE THE STATE DOESN'T WANT
TO SHOW THAT DEALS ARE MADE,
AND SO THE CONCERN BECOMES
WHETHER IN FACT, INSTEAD OF
THERE BEING AN EXPRESS WRITTEN
DEAL, THERE IS THE
UNDERSTANDING WINK-WINK THAT IF
THE WITNESS TESTIFIES
FAVORABLY, THE PROSECUTOR WILL
COME IN AND MAKE SURE THAT THE
WITNESS IS TREATED FAVORABLY IN
THE CRIMINAL CASE, SO TELL US
HOW THAT SHAKES OUT HERE. 
LET ME BEGIN BY ANSWERING
THAT MR.  FREEMAN WAS
THOROUGHLY IMPEACHED OR
THOROUGHLY CROSS-EXAMINED FOR
PAGES AND PAGES AND PAGES. 
HE HAS 26 FELONY CONVICTIONS AT
THE TIME OF THE OFFENSE. 
THE PROSECUTOR'S NOTE INDICATED
THAT, IN A CONVERSATION SHE HAD
WITH FREEMAN'S ATTORNEY, THAT THERE WOULD BE NO DEALS PRIOR
TO TRIAL, THAT COOPERATION
WOULD BE, QUOTE, REMEMBERED
WITH FAVOR, CLOSE QUOTE, BEFORE
SENTENCING. 
REMEMBERED WITH FAVOR IS A
SOMEWHAT ARCANE TERM. 
I AM NOT ENTIRELY SURE WHAT
THAT MEANS IN THE SENSE THAT IT
IS NOT A PHRASE I WOULD
PERSONALLY USE. 
I SUSPECT THAT THAT MEANS THAT
THE PROSECUTOR WOULD MAKE KNOWN
TO THE SENTENCING COURT THAT
FREEMAN HAD COOPERATED. 
CHIEF JUSTICE: SO SHOULD
THAT BE TURNED OVER TO THE
DEFENSE? 
I WISH IT HAD BEEN. 
CHIEF JUSTICE: OKAY. 
WHETHER --
JUSTICE: WAS FREEMAN
CROSS-EXAMINED ABOUT THE FACT
THAT HE HAD PENDING CHARGES AND
THINGS LIKE THAT, AND EVEN
THOUGH HE DENIED IT, WAS
COUNSEL ABLE TO GET THE
INFERENCE THAT HIS TESTIMONY
WOULD BE FAVORABLY CONSIDERED? 
FREEMAN WAS CROSS-EXAMINED
EXTENSIVELY. 
HE MADE,AND LET ME GO BACK TO
THE EARLIER SERIES OF
QUESTIONS, JUSTICE CANTERO,
JUST FOR A MOMENT BEFORE I
FORGET THIS, BECAUSE IT IS
IMPORTANT. 
THE WEST VIRGINIA BOYS AND PC, ALSO
CAME BACK AND REITERATED ON
CROSS-EXAMINATION, THAT THEIR
TESTIMONY ABOUT MR. 
PONTICELLI'S ACTIONS IN
CONNECTION WITH THE MURDERS OF
THE GRANDINETTI BROTHERS WERE
TRUTHFUL. 
THEY DID NOT RETRACT, MODIFY OR
CHANGE THE SUBSTANTIVE TRIAL
TESTIMONY. 
NOW, JUSTICE CANTERO, WITH
RESPECT TO REAM P FREEMAN'S --
WITH RESPECT TO FREEMAN,
FREEMAN MADE THE COMMENT DURING
CROSS-EXAMINATION WHEN HE WAS
ASKED IF HE WAS GETTING ANY
BENEFIT FOR HIS TESTIMONY, AND
HE WAS ASKED IN SEVERAL WAYS
THROUGHOUT THE COURSE OF THE
TESTIMONY, HE SAID, AND I
QUOTE, I WON'T SAY I HADN'T
THOUGHT ABOUT IT. 
IT IS THE BEST I CAN DO ON
THAT. 
BUT ONCE AGAIN, YOU HAVE, WITH
RESPECT TO FREEMAN, THE WEST
VIRGINIA BOYS, AND KEESE, YOU
HAVE THIS CONVERGENT VALIDITY
AND LET'S DON'T FORGET YOU HAVE
GOT A COUPLE OF WITNESSES OUT
THERE WHO AREN'T ATTACKED. 
THAT IS JOEY LEONARD AND WHEN
YOU TAKE ALL OF THIS AND PUT IT
TOGETHER, VIEWING ALL OF THE
EVIDENCE IN CONNECTION WITH NOT
ONLY WHAT WE HAVE NOW WHICH
DOES NOT CHANGE THE SUBSTANTIVE
FACTS OF THE CRIME, YOU HAVE
MINIMAL IMPEACHMENT EVIDENCE
THAT DOES NOT CHANGE THE
RESULT. 
THERE IS NO REASONABLE
LIKELIHOOD AFTER DIFFERENT
RESULT, AND I WOULD ASK THE
COURT TO AFFIRM. 
THANK YOU. 
CHIEF JUSTICE: THANK YOU. 
REBUTTAL. 
YES, YOUR HONOR. 
THAT IS NOT THE STANDARD. 
THE STANDARD IS NOT WHAT THE
CIRCUIT COURT SAYS, THAT THERE
IS OVERWHELMING EVIDENCE OF
GUILT. 
THE STANDARD IS, AND KYLE SAYS
THAT SPECIFICALLY. 
THIS ISN'T A SUFFICIENCY OF
EVIDENCE TEST. 
THIS IS ABOUT WHAT WOULD TRIAL
COUNSEL HAVE DONE WITH THIS
EVIDENCE, AND THIS COURT LOOKS
WITH THE DISCOVERY VIOLATION
WITH PROCEDURAL PREJUDICE. 
IN BRADY YOU HAVE TO CONSIDER
BOTH, SO THAT DISTINCTION 
DOES NOT MATTER. 
WHAT WOULD TRIAL COUNSEL HAVE
DONE IN THIS MATTER? 
HE WOULD HAVE GOTTEN AN EXPERT
ON THE STAND TO TALK ABOUT
COCAINE PSYCHOSIS AND GOTTEN A
WITNESS TO TALK ABOUT THE
CONSCIOUSNESS OF GUILT AND NOT
USING DRUGS AS THE REASON FOR
THE MURDER THAT NIGHT. 
JUSTICE: YOUR OTHER
REFERENCE ABOUT THE WITNESSES
AND PARTING EARLY THE NIGHT
BEFORE OR THE EARLY MORNING
HOURS OR WHATEVER IT WAS, HE
TESTIFIED THAT NONE OF THEMTED
SAID THAT THE DEFENDANT USED
ANY DRUGS. 
THEY TESTIFIED ABOUT THEIR OWN
USE OF DRUGS BUT THAT NONE OF
THEM SAID THAT HE USED DRUGS AT
THAT TIME. 
THAT IS NOT TRUE. 
THE WEST VIRGINIA BOYS SAID THAT THEY USED DRUGS WITH MR. 
PONTICELLI. 
THAT IS NOT TAKING INTO
ACCOUNT ON THE DAY OF THE
CRIME. 
LET'S GO BACK AND SEE WHAT THE
FACTS ARE. 
WE ARE PLAYING FAST AND LOOSE. 
IS THAT, AND JUSTICE ANSTEAD
ASKED YOU A QUESTION, IS THAT,
AFTER EIGHT O'CLOCK THAT
MORNING IS THERE EVIDENCE THAT
THE WEST VIRGINIA BOYS SAID
THAT THIS DEFENDANT USED DRUGS
WITH THEM? 
THAT IS WHAT HE ASKED YOU. 
NO. 
THE CRITICAL PART --
JUSTICE: SO YOUR ANSWER IS
NOT YES. 
IT IS NO. 
CORRECT? 
I AM REFERRING TO THE NIGHT
BEFORE. 
OKAY. 
THE DAY, THESE MURDERS OCCURRED
THE DAY AFTER THANKSGIVING. 
IS THAT CORRECT? 
YES. 
JUSTICE: NOW, IF I
UNDERSTAND IT CORRECTLY, THE
WEST VIRGINIA BOYS AT THE
POSTCONVICTION HEARING AND
OTHERS, TESTIFIED THAT THERE
WAS EXTENSIVE PARTYING GOING
ON, ON THANKSGIVING. 
YES. 
JUSTICE: AND INTO THE EARLY
MORNING HOURS. 
IT CONCLUDED AT 5:00 A.M. 
JUSTICE: THAT TESTIMONY DID
NOT COME OUT AT TRIAL. 
MY QUESTION IS, DID THEY
TESTIFY AS TO USING DRUGS, THAT
THE DEFENDANT USED DRUGS DURING
THAT PARTY ON THANKSGIVING DAY?
YES. 
YES. 
ABSOLUTELY. 
THEY SAY TONY PONTICELLI USED
DRUGS WITH US THAT NIGHT, AND
KEESEE, I WANT TO POINT
SOMETHING OUT --
CHIEF JUSTICE: MS.^McDERMOTT, WITH OUR HELP YOU
HAVE USED UP YOUR TIME. 
I WANT TO SAY THAT THIS
COURT FOUND ON SENTENCING THAT
THE STATUTORY MENTAL HEALTH
MITIGATORS DID NOT APPLY,
SIMPLY BECAUSE THERE WAS NO
TESTIMONY THAT DRUGS WERE USED
ON THE EVE OF THE CRIMES, AND
WE NOW KNOW THAT THAT IS NOT
TRUE AND THE CIRCUIT COURT
DOESN'T EVEN USE ANY ANALYSIS
AT THE PENALTY PHASE TOWARDS
THE BRADY INFORMATION, AND THAT
IN COMBINATION WITH THE
INEFFECTIVE ASSISTANCE CLAIM AT
A MINIMUM WOULD REQUIRE A NEW
PENALTY PHASE, BUT CERTAINLY WE
ARE ASKING THAT THIS COURT
GRANT MR.  PONTICELLI A NEW
TRIAL. 
CHIEF JUSTICE: THANK YOU
VERY MUCH.
THE COURT WILL
TAKE THIS MATTER UNDER
ADVISEMENT AND WILL NOW TAKE
ITS MORNING RECESS OF 15
MINUTES.