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James Hitchcock v. State of Florida
SC03-2203 | SC04-1286
> THE NEXT CASE ON OUR CALENDAR THIS MORNING IS HITCHCOCK VERSUS STATE OF FLORIDA.
MAY IT PLEASE THE COURT MY NAME THE JAMES DRISCOLL. WE ARE BOTH HERE ON BEHALF OF JAMES HITCHCOCK AND EMPLOYED BY CPRC MIDDLE. WHAT WE HAVE BEFORE THE COURT NOW IS TWO CONFESSIONS SIMILAR FACT EVIDENCE OF THE MOST COMPELLING NATURE AND AN INNOCENT CLIENT WHO HAS BEEN CONVICTED BASED ON THE INEFFECTIVE ASSISTANT OF COUNSEL. WHAT WE DON'T HAVE THE JUSTICE THAT MR. HITCHCOCK IS ENTITLED TO. THIS COURT RELINGUISHED JURISDICTION IN ORDER ON THE MERIT OF MR. HITCHCOCK'S ISSUES.
I WOULD LIKE YOU IF YOU COULD BECAUSE YOU HAVE A VERY SHORT TIME EXPLAIN WHAT WAS PROPER TO THE COURT BACK IN THE ORIGINAL TRIAL CONCERNING THIS SIMILAR FACT EVIDENCE AND HOW IS IT DIFFERENT THAN WHAT YOU'RE ALLEGE!!ING NOW AND HOW WHAT YOU'RE ALLEGE!!ING NOW WOULD COME IN EVEN TODAY AS REVERSE FOR INJURY?
OKAY THAT WOULD REFER TO RICHARD HITCHCOCK. AND IN 1977 AND I BELIEVE THE PAGE NUMBER WAS 794 THE TRIAL COUNSEL PROPER ATTEMPTED TO PROPER THE TESTIMONY OF THE WITNESS. THIS IS AFTER DURING THE ACTUAL WITNESSES WHEN THEY TESTIFIED THEY WERE GOING TO TESTIFY AS TOWARDS PROPENSITY AND TRIAL COUNSEL ADMITTED THAT IF THE ORIGINAL HEARING PROPENSITY AS THIS COURT KNOWS IS BAD CHARACTER I THINK IT WOULDN'T HAVE BEEN ADMISSIBLE THEN OR NOW. BUT -- WHAT IS ADMISSIBLE IS RELEVANT EVIDENCE SIMILAR FACT EVIDENCE AND THAT HAD COUNSEL TAKEN THE TIME TO INVESTIGATE THAT TAKEN THE TIME TO DEVELOP AND THAT DID EFFECTIVE I WILL DOWN -- COUNSEL WOULD HAVE BEEN ABLE TO PUT FORWARD ADMISSIBILITY IN 1977.
WELL, I THINK -- PUT WE WOULD HAVE TO LOOK AT THE EVIDENCE PRESENTED NOW. I MEAN JUST STEP ONE AND DECIDE THAT THE EVIDENCE PRESENTED NOW IS -- IF THE TRIAL WERE HELD WOULD BE ADMISSIBLE AS THE FIRST WILLIAMS RULE; CORRECT?
THAT WOULD BE PART OF THE INQUIRY.
NOW, MY CONCERN IS THAT RICHARD IS NOT BEING ACCUSED OF HAVING SEXUALLY MOLESTED THE VICTIM. HE'S BEING ACCUSED OF CHOKE!!ING HER AND KILLING HER AFTER THE FACT; CORRECT?
OUR ALLEGATION IS THAT MR. JAMES HITCHCOCK WRONGFULLY HAD CONSENSUAL SEX WITH THE VICTIM. WHAT JAMES HITCHCOCK -- WHEN RICHARD HITCHCOCK CAME UPON THEM AFTER THE FACT JAMES HITCHCOCK BECOME ENRAGED.
HOW WOULD -- AND IT'S A TERRIBLE ALLEGATION YEARS OF HAVING SEXUAL RELATIONS WITH YOUNGER SISTERS IN HIS FAMILY BE REVERSE WILLIAM RULE ON THE ISSUE OF CHOKE!!ING AND KILLING THIS YOUNG GIRL?
WELL, IT WOULD GO TO HIS MOTIO OF OPRANDA. RICHARD HECK CALK SAME -- SAW THE YOUNG WOMEN IN HIS FAMILY AS SEXUAL PROPERTY. HE SAW IT AS HIS ROLE TO TAKE THEIR IGINITY IN WHEN HE CAME THE JAMES HANCOCK IN THE ROOM WITH THE VICTIM.
YOU SUBMIT ALL OF THE EVIDENCE OF ALL OF THOSE WITNESSES SHOULD HAVE COME IN ON A GENERAL PATTERN OF WHAT RICHARD HITCHCOCK DID WITHIN HIS OWN FAMILY?
-- BECAUSE I DON'T THINK -- I THINK THAT'S A DIFFERENT TYPE OF REVERSE WILLIAMS RULE THAN WE USUALLY LOOK AT. AND I'M NOT UNSYMPATHETIC TO WHAT YOU ARE SAYING. BUT I REALLY AM HAVING A HARD TIME KNOWING WHETHER THAT EVIDENCE REALLY WOULD BE ADMISSIBLE EVEN TODAY.
WELL, SOME OF IT -- SOME OF IT WAS DISCOVERED AFTER THE TRIAL. AND IT WAS PRESENTED AND SOME OF THE WITNESSES LIKE, FOR INSTANCE, WANDA HITCHCOCK GREEN WHO WAS MARRIED WOULD NOT HAVE TESTIFIED AT THE '. SOME OF IT IS NEWLY DISCOVERED. SOME OF IT COULD HAVE BEEN DISCOVERED.
THAT GOES TO ANOTHER ISSUE THEY SHE SHE'S IS PRO RICHARD NOW EVERYONE COMES OUT OF THE THE WOODWORK TO BLAME RICHARD.
SHE WAS PRO-RICHARD TO UNTIL HE CONFESSED TO THE PURD. I TOOK A LONG TIME AND MISS GREEN, I GUESS YOU KNOW HAD FAITH IN THE SYSTEM THAT AN INNOCENT MAN WOULDN'T WITH CONVICTED AND THAT WAS ALL QUASHED WHEN RICHARD ADMITTED TO THE MURDER. BUT DID RICHARD REALLY ADMIT TO THE MURDER TO MISS GREEN? I THOUGHT THAT THOUGHT THAT SHE -- THAT HE MADE SOME STATEMENT THAT MIGHT HAVE BEEN INTERPRETED BUT HE DIDN'T REALLY SAY HE HAD KILLED THE VICTIM.
I DON'T THINK THAT'S THE CASE. WITH WANDA HITCHCOCK GREEN. AND THIS IS -- I BELIEVE THE TESTIMONY OF THE DEFENSE AND THE EVIDENTIARY HEARING CLEARLY SUPPORTS THAT WANDA NEW EXACTLY WHO RICHARD WAS TALKING ABOUT. AND KNEW EXACTLY WHAT HE MEANT. JUST TO RETURN BRIEFLY TO --
WHAT -- JUST TELL US WHAT HE ACTUALLY SAID TO HER.
WHAT HE ACTUALLY SAID I BELIEVE I'VE QUOTED IT IN MY BRIEF.
BECAUSE I'M CONCERNED WITH THIS ISSUE TOO. WHILE IT SOUNDS ON THE SURFACE LIKE A REALLY GOOD NEWLY DISCOVERED EVIDENCE ISSUE, THERE'S SOME CONCERN HERE THAT ALL OF THIS SEEMS TO COME OUT, YOU KNOW, YEARS LATER, ALL THESE THINGS HAPPENED SOME YEARS AGO; CORRECT?
YES. YOUR HONOR.
BUT NO ONE UNTIL RICHARD DIES DECIDES TO COME FORWARD AND SAY THAT RICHARD REALLY IS THE ONE WHO DID THIS.
BUT IT DOES MAKE PERFECT SENSE THAT IT WOULD COME OUT. I WOULDN'T COME OUT LATER AT THE LATER STAGE, BECAUSE DURING THAT PERIOD RICHARD IS OUT LIVING HIS LIFE EARNING MONEY DOING WHATEVER RICHARD WANTED TO DO. HE HAD HIS FREEDOM FOR A PERIOD OF TIME. BY THE TIME RICHARD CONFESSED AND AN UNCOERCED SETTING AND ONE OF THE SETTING IS SITTING AT MOTHER'S TABLE, BY THAT TIME JAMES HITCHCOCK IS GETTING CLOSE TO BEING EXCUTED. WHERE IT'S ONE THING TO ALLOW YOUR BROTHER TO CONFESS AND SIT IN PRISON AS QUITE ANOTHER TO ALLOW -- ALLOW YOUR BROTHER TO BE EXCUTED AT THE HANDS OF THE STATE.
WELL THE PROBLEM -- IT SEEMS TO ME THAT THOUGH THE ISSUES GET ENTER AMERICANNED THAT -- INTERMESHED THE ISSUE AS TO THE REVERSE WILLIAMS RULE THAT IS SOMETHING THAT DATE BASS -- THAT DATES BACK, OBVIOUSLY TO THE FIRST TRIAL. AND THERE WAS AN ATTEMPT BY MR. TABSCOT TO PROVER THAT AND THE COURT DENIED IT. AND THEN THAT WOULD HAVE BEEN A MATTER WHICH, WHICH WAS PROPERLY IN THE FIRST APPEAL IN THIS CASE AND THE DIRECT APPEAL. NOW THIS SECOND MATTER HAVING TO DO WITH INEFFECTIVE ASSISTANCE OF COUNSEL AND THE NEWLY DISCOVERED EVIDENCE CLAIM WAS DEALT WITH IN POST CONVICTION AND THE KEY FINDING THERE BY THE TRIAL JUDGE WAS THAT THESE WITNESSES WERE NOT CREDIBLE. AND WE HAVE HELD -- THAT'S A CALL THAT THE TRIAL JUDGE HAD TO MADE -- MAKE.
IN FACT, THERE IS SUBSTANTIAL INCOMPETENT EVIDENCE THAT THE TRIAL COURT MAKES DECISION. HOW DO YOU SAY THERE'S NOT SUBSTANTIAL COMPETENTERS TO SUPPORT THE JUDGE'S CREDIBILITY OF DETERMINATION?
WELL, I WOULD ALSO SUBMIT AND I HAVE ARGUED IN MY BRIEF THAT THERE ARE SEPARATE QUESTIONS. AND THE CREDIBILITY OF THE COURT COMMITMENT THAT CONFESSED FOR THE DECLARATION OF INTEREST. BUT THE STATEMENT ITSELF. THERE ARE TWO QUESTIONS. AND THE QUESTION ISN'T WHETHER THE COURT WOULD FIND THEM NECESSARILY CREDIBLE. I MEAN, THAT MIGHT BE A BACKGROUND ON ANYTHING. BUT THE QUESTION IS WHETHER OR NOT IT WOULD QUALIFY AS A DECLARATION. WE BELIEVE IT DID.
IT SEEMS TO ME THAT YOU CANNOT ISOLATE THOSE QUITE THAT WAY MR. DRISCOLL BECAUSE THERE HAS TO BE A JUDGMENT CALL MADE ABOUT THIS WITNESS THAT -- WHETHER IT BE OHIO OR ARKANSAS -- AND AS TO WHETHER YOU FIND THAT HER COME!!ING OUT AND MAKING THIS STATEMENT AFTER RICHARD DIED AND ON THE BASIS OF HER RELATIONSHIP WITH RICHARD, WHETHER YOU IN THE FIRST INSTANCE BELIEVE SHE'S CREDIBLE. THE TRIAL JUDGE SAID I DON'T BELIEVE IT. [INAUDIBLE] [INAUDIBLE] BUT YOU NECESSARILY HAVE TO TAKE INTO ACCOUNT THE CREDIBILITY OF THE WITNESSES DECIDE!!ING WHETHER IT'S LIKELY TO PRODUCE AN ACQUITTAL ON RETRIAL. PART OF IT WOULD BE THE CONSIDERATION OF THE EVIDENCE AT THE STATE WOULD HAVE LEFT OVER FROM THE 1977 TRIAL. AND THERE WAS LITTLE EVIDENCE. ESSENTIALLY WHAT'S LEFT NOW IS THE STATEMENT OF JANE HECK -- HITCHCOCK. THE FIRST ONE WHICH IS BELIEVED IS FALSE AND THE TESTIMONY DURING THE 1977 TRIAL.
LET ME JUST GO BACK TO SOMETHING THAT I WANT TO MAKE SURE FULLY EXPLORED WHAT WOULD BE ISSUE THREE IN YOUR APPEAL, WHICH IS THAT THE POST CONVICTION COURT ERRED SAYING COUNSEL WAS INEFFECTIVE FOR OPENING DOOR TO ADD CHARACTER EVIDENCE OF THE PETITIONER WHICH IS BRINGING IN ALL THE PEOPLE THAT SAID HE'S A GREAT GUY. AND THEN THERE WAS EVIDENCE HE'S NOT A GREAT GUY WHILE FAILING TO ARGUE THE ADMISSIBILITY OF THE INCRIPPLENATE!!ING EVIDENCE ON THE OTHER SUSPECT. NOW JUST -- WELL I STARTED OUT SAYING DIDN'T THEY TRY TO DO THAT AT THE FIRST TRIAL. AND JUSTICE WELLS ECHOED THAT. YOU WERE DEVELOPING WHETHER THERE CAN BE A FINDING OR SHOULD BE A FINDING COUNSEL WAS INEFFECTIVE BECAUSE INSTEAD OF TRYING TO ARGUE REVERSE WILLIAMS RULE AND HE ARGUED THEY HAD BAD CHARACTER WHICH PROPENSITY WHICH WOULD NEVER COME IN. NOW THAT'S SOMETHING THAT TO SAY IN 19 -- WHATEVER YEAR WAS WITHHELD THAT WOULD BE INEFFECTIVE WE WOULD HAVE TO KNOW WHAT HE KNEW ABOUT HOW PERVASIVE THE SEXUAL ABUSE AND THE CHOKE!!ING WAS AND HOW HE COMPETENT COUNSEL ARGUE!!ING WOULD HAVE BEEN ABLE TO GET THAT EVIDENCE IN. WHAT YOU HAVE THE TESTIMONY IN PARTICULAR FOR HITCHCOCK GALLAWAY. TESTIFIED HOW THE TRIAL COUNSEL INTERACTED WITH IT. IT WAS VERY BRIEF. [INAUDIBLE] YOU AGREE THAT THRESHOLD ISSUE STILL IS LOOKING AT EVERYTHING PRESENTED ON POST CONVICTION, WOULD A JUDGE TODAY -- WHO WOULD JUST HAVE TO GET TO THAT -- ALLOW THAT EVIDENCE IN AS -- REVERSE WILLIAMS RULE. IF IT CAN'T EVEN COME IN TODAY --
IT'S STRIKE!!ING. RICHARD HITCHCOCK WAS BASICALLY AS -- [INAUDIBLE] HE BECOME INTERESTED IN ANYONE ELSE WITH JAMES HITCHCOCK HE WOULD BECOME ENRAGED.
LET ME ASK YOU THIS QUESTION. IF THAT TESTIMONY WAS PRESENTED, THEN THE EVIDENCE THAT THIS COURT REVERSED EARLIER AGAINST THE DEFENDANT, YOUR CLIENT IN THIS CASE, WOULD THAT NOT ALSO BE ADMISSIBLE WHERE THE VICTIM'S SISTER TESTIFIED OF HIS SEXUAL ABUSE OF THE SISTER AND OTHER FAMILY MEMBERS?
I MEAN IF YOU CAN GET REVERSE WILLIAMS RULE COULDN'T THE STATE ARGUE WILLIAMS' RULE? [INAUDIBLE] BUT AS COUNSEL ARGUING THIS CASE YOU ARE ARGUE!!ING THAT THE PRIOR -- THE REVERSE WILLIAM OF RICHARD SHOULD BE ADMISSIBLE. ISN'T IT ALSO TRUE TO SAY THEN THAT WOULD APPLY TO YOUR CLIENT TOO?
I WOULD NOT AGREE WITH THAT.
WHY?
IN PARTICULAR [INAUDIBLE]
YOUR ARGUEMEND IS THE DEFENDANT CAN PRESENT IT AGAINST SOMEBODY EULS -- ELSE AND IN THIS CASE SOMEBODY THAT'S DISEASED BUT THE STATE DOESN'T HAVE THE EQUAL FOOTING TO PRESENT IT AGAINST YOUR CLIENT.
WELL, THEY DO NOT QUALIFY -- [INAUDIBLE] THAT'S STRIKE!!INGLY SIMILAR AND THIS COURT AND I THINK THE PRINCIPLE THAT SHOULD FIDE THIS COURT IF THIS EVIDENCE CAME IN AGAINST RICHARD HITCHCOCK IN A CASE BY THE STATE HAS THE BURDEN OF PROVE!!ING AND CAME BEFORE THIS COURT -- [INAUDIBLE]
WAS THE REVERSE THE ABILITY TO PROVIDE REVERES WILLIAMS RULE EVIDENCE ESTABLISHED AT THE TIME OF THIS TRIAL?
I DON'T BELIEVE I ACTUALLY -- THE WILLIAMS RULE --
I'M NOT TALKING ABOUT WILLIAMS RULE EVIDENCE. I'M TALKING ABOUT THE ABILITY TO PRESENT SUCH EVIDENCE AGAINST A THIRD PARTY, ANOTHER PERSON OTHER THAN THE DEFENDANT. WAS THAT ESTABLISHED AT THE TIME OF THIS TRIAL? [INAUDIBLE] WILLIAMS DECISION -- HAD THIS -- LET ME CLARIFY. HAD THIS COURT OR FLORIDA DISTRICT COURT OF APPEAL HELD THAT WILLIAMS RULE EVIDENCE COULD BE USED AGAINST A THIRD PARTY IN A CRIMINAL CASE. HAVEN'T WE HELD THAT WE CAN'T REQUIRE COUNSEL COANTICIPATE THE LAW AND NOT TO ARGUE FOR A CHANGE OR DEVELOPMENT OF THE LAW IS NOT INEFFECTIVE ASSISTANCE OF COUNSEL. THAT WASN'T A CHANGE IN THE LAW. THE WILLIAMS EXPRESSED THE RIGHT -- [INAUDIBLE] A MATTER OF ANYBODY TRYING WHETHER IT'S CIVIL OR CRIMINAL CASE THE GUIDE!!ING PRINCIPLE IN WHICH WAS ADDRESSED WAS BASED ON RELEVANCE. THERE'S NO RELEVANCE TO SHOW RICHARD HAD PROPENSITY. [INAUDIBLE]
WHAT -- THE QUESTION THAT JUSTICE CANTERO JUST ASKED IN ANOTHER WAY, AREN'T THERE CASES FROM COURT THAT SAYS YOU CANNOT -- YOU COULD NOT USE WILLIAMS OR REVERSE WILLIAMS RULE, AND IT WAS ONLY UNTIL LIKE 1990 THIS COURT ACTUALLY SAID YOU COULD IN FACT USE THE REVERSE WILLIAMS RULE. I DON'T AND I HAVE READ THE CASES. AND I DIDN'T TAKE IT AS IT WASN'T A QUESTION OF WHETHER!!!!!!!!!!!!!! WHETHER -- THERE WAS SOME QUESTIONS RAISED AND THE COURT DISTRICT COURT UPHELD THE EXCLUSION, BUT AS A PER SE OR ACROSS THE BOARD MATTER THAT'S THE DEFENSE CAN'T PUT ON WILLIAMS RULE OR A SIMILAR FACT THAT THEY WOULD HAVE DONE IT FROM. COMMON LAW EVIDENCE. I WOULD ALSO SAY THAT THE PRINCIPLE THERE ARE NOT SPECIAL RULES OF EVIDENCE TO OBTAIN A CONVICTION. THIS RULES OF EVIDENCE WOULD APPLY TO BOTH FOR SPECIAL CONCERNS.
ACCUSED, THERE ARE SPECIAL CONCERNS ABOUT THE RIGHTS OF THE ACCUSED.
ONE OF THE MAJOR THEMES OF YOUR ARGUMENT SEEMS TO BE THAT RICHARD BECAME ENRAGED WHEN HE FOUND OUT OR SAW JAMES HAVING SEX WITH THIS YOUNG GIRL. AND WHAT EVIDENCE DO YOU HAVE THAT SUPPORTS THAT PROPOSITION?
WELL, WE HAVE THE SYSTEM OF A VERY IMPORTANT WITNESS. IN 1977 AFTER FALSELY CONFESSING DURING A SUICIDE ATTEMPT, JAMES HITCHCOCK TOOK THE STAND, AND HE TESTIFIED UNDER OATH AS TO WHAT EXACTLY HAPPENED.
SO WE HAVE -- DO WE HAVE ANY EVIDENCE THAT CORROBORATES THIS OTHER THAN THE TESTIMONY OF THE DEFENDANT WHO, OF COURSE, HAS A REAL INTEREST IN MAKING THIS KIND OF STATEMENT? DO WE HAVE ANY OTHER TESTIMONY THAT CORROBORATES THAT RICHARD WAS AT THE SCENE OF THE MURDER?
WELL, RICHARD RIVETTED -- LIVED IN THE HOUSE. LAST TIME HE WAS SEEN --
DID THE MOTHER LIVE IN THE HOUSE ALSO?
THE MOTHER LIVED IN THE HOUSE.
OKAY. SO THERE WERE OTHER PEOPLE IN THE HOUSE. I'M ASKING YOU WHAT SPECIFICALLY SUPPORTS THE PROPOSITION OTHER THAN JAMES' TESTIMONY THAT RICHARD CAME UPON THEM HAVING SEX AND THAT ALL OF THIS OCCURRED?
THAT WOULD BE SUPPORTED BY RICHARD HITCHCOCK'S CONFESSION, AND THEN ALSO WHEN YOU CONSIDER THE SIMILAR FACT --
I MEAN, HOW DO YOU -- AND WHERE DOES IT COME INTO PLAY, THIS WHOLE NOTION THAT THE TESTIMONY THAT RICHARD WAS A GAG ART AND LOVED TO -- BRAGGART AND LOVED TO GO AROUND AND BRAG AROUND WHAT HE HAD DONE?
I BELIEVE THAT WAS BECAUSE WE COULD FIND THE LANGUAGE IN JONES -- I BELIEVE MS. ME CHUM WAS ASKED ABOUT THAT, AND HE SAID SHE WAS SCARED, THAT WAS JUST ONE WITNESS. AND IT CORROBORATES WHAT MARTHA HITCHCOCK GREEN SAID AS WELL. THE STATE DID ASK ABOUT THAT, THEY DID ASK ABOUT HIS ATTITUDE AND DIFFERENT THINGS, BUT THAT'S WHO RICHARD WAS. AND THIS IS NOT A CASE, THIS IS NOT A JAILHOUSE CONFESSION, AND THESE ARE NOT FELLOW INMATES. THESE ARE TWO PEOPLE, ONE WHO'S NEVER MET JAMES HITCHCOCK, AND ONE WHO DIDN'T BELIEVE IN HIS INNOCENCE UNTIL SHE HEARD FROM RICHARD HITCHCOCK IN HIS OWN WORDS THAT --
WITH OUR ASSISTANCE, YOU'VE EXHAUSTED ALL OF YOUR TIME NOW. YES, SIR. I'LL GIVE YOU MAYBE A MINUTE TO REBUFF.
MAY IT PLEASE THE COURT, I'M KENT NUNNALLY, FIRST THING I WANT TO SAY IS THIS IS THE THIRD SENTENCING HEARING MR. HITCHCOCK HAS HAD. HIS SECOND DEATH SENTENCE WAS REVERSED BECAUSE EVIDENCE OF PED FILL YA ON MR. HITCHCOCK'S BEHALF CAME INTO EVIDENCE.
COULD YOU BEFORE YOU GO INTO THE SPECIFIC ARGUMENTS, COULD YOU DO THE FLIPSIDE OF JUSTICE'S QUESTION? ASIDE FROM JAMES HITCHCOCK'S CONFESSION, WHAT OTHER EVIDENCE SUPPORTS THAT HE WAS THE ACTUAL KILLER?
THAT'S A REAL EASY ANSWER, NOTHING. THE VICTIM'S SISTER -- IN THE COURSE OF THIS CASE WHICH HAS BEEN GOING ON SINCE I WAS, WELL, I WAS OUT OF HIGH SCHOOL. THE VICTIM'S SISTER HAS TESTIFIED A COUPLE OF TIMES. THE TESTIMONY THAT CAME IN, I BELIEVE AT THE GUILT STAGE IN 1977, I BELIEVE HE -- YOU'LL SEE MY OPINION FILE OVER THERE. I CAN'T REMEMBER WHO SAID WHAT WHEN EXACTLY. BUT THE VICTIM'S SISTER TESTIFIED CLEARLY THAT SHE AND HER SISTER WERE AFRAID OF THE DEFENDANT, MR. HITCHCOCK. AND THERE WAS AT SOME POINT IN TIME WHERE THIS COURT SAID IT WAS OKAY FOR THAT TO COME IN BECAUSE THE VICTIM'S SISTER COULD NOT NECESSARILY HAVE TESTIFIED ABOUT HER FEAR OF THE --
BUT THAT CAME IN IN THE PENALTY PHASE. THAT DID NOT COME IN IN THE GUILT FAITZ.
OKAY. IT'S EASY TO DO IN THIS CASE. BUT THE POINT IS WE DON'T HAVE ANY EVIDENCE AT ALL, AND WE HAVE NEVER HAD ANY EVIDENCE NOR HAS ANY EVIDENCE EVER BEEN OFFERED TO SUGGEST OR SUPPORT THE NOTION THAT RICHARD HISH COCK IN -- RICH COCK IN ANY WAY, SHAPE, OR FORM PSEUDOHIS STEPDAUGHTERS AS HIS SEXUAL PROPERTY. THERE IS ABSOLUTELY NOTHING IN THE RECORD EXCEPT AN INFERENCE LEVELED AGAINST THE DEAD MAN TO SUPPORT THAT.
SO YOU WOULD, STARTING WITH MY LAST QUESTION, THAT IF THIS EVIDENCE THAT WAS IN THE RECORD NOW WAS BEING OFFERED EVEN TODAY, THAT IS ABILITY ALL THE GIRLS, THE SISTERS, MARTHA BEING SEXUALLY ABUSED FROM ANAL 8-17, BRENDA FROM 5-14, MARTHA AND WANDA RICHARDS DESIRED TO POSSESS FAMILY MEMBERS COULD NOT COME IN EVEN TODAY?
YES, MA'AM, ASSUMING THAT -- THAT PRESUPPOSES THAT I'M NOT GIVING IN ON THIS, I'M NOT GOING TO CONCEIVE THAT THERE EVEN WAS SUCH A THING AT THE TIME OF THIS FILE IN 1977. BUT ASSUMING THAT -- STEPPING PAST THAT ARGUMENT JUST FOR THE SAKE OF YOUR QUESTION, THIS EVIDENCE, THE STANDARD FOR REVERSE WILLIAMS ROLE IS THAT THE EVIDENCE WOULD HAVE TO BE ADMISSIBLE IF THE THIRD PARTY AGAINST WHOM THAT EVIDENCE, TO WHO THAT EVIDENCE SUPPOSEDLY POINTS THE FINGER WERE ALL -- THEN IT WOULD BE ADMISSIBLE AGAINST THAT INDIVIDUAL. AND I WOULD SUGGEST THAT UNDER THESE FACTS AS WE KNOW THEM, ASSUMING WE GET TO THE REVERSE WILLIAMS RULE ISSUE AT ALL, THE EVIDENCE OF RICHARD HITCHCOCK'S BEHAVIOR MANY YEARS PRIOR TO THE MURDER WITH RESPECT TO HIS SISTERS, NONE OF WHOM WERE KILLED, BY THE WAY, HE HAS NOT SUFFICIENTLY SIMILAR TO SUPPORT THE INFERENCE THAT HE WAS SEXUALLY BATTERING OR INTENDED AT SOME FUTURE POINT TO SEXUALLY BATTER HIS STEPDAUGHTER.
I GUESS EVEN TO ME MORE IMPORTANT MAYBE IS, ALTHOUGH COUNSEL THREW IN SEXUALLY ABUSED AND CHOKED, I DIDN'T -- MARTHA AND BRENDA DIDN'T TESTIFY THEY WERE EVER CHOKED, DID THEY? I MEAN --
ONE OF 'EM TALKED ABOUT BEING -- SEEMS LIKE ONE OF 'EM, AND I CANNOT REMEMBER WHICH ONE IT WAS DID TALK ABOUT THE CHOKING INCIDENT.
MARTHA WHEN RICHARD CHOKED HER WITH A BROOM STICK.
AND ANOTHER ONE GOT THROWN INTO A WALL OR SOMETHING LIKE THAT, BUT NONE OF THOSE -- ASSUMING THE TRUTH OF WHAT THEY'RE SAYING, AND AGAIN, I'M NOT ARGUING ONE WAY OR THE WITH OTHER HERE, BUT NONE OF THOSE INDIVIDUALS WERE EVER CAUGHT IN THE ACT.
MY CONCERN ABOUT IT, AND I THINK WE HAVE TO GET THROUGH THAT HOOP, THOUGH, IS THAT WHATEVER THE LAW WAS BACK THEN, THE LOWER COURT RECORD REVEALS THAT COUNSEL DID ATTEMPT TO -- THE TESTIMONY OF BRENDA AND MARTHA, THE TWO WHO WERE SEXUALLY ABUSED FOR A CONSIDERABLE PERIOD OF TIME, BUT THE RECORD NEVER REALLY ESTABLISHES WHAT THEY WOULD HAVE TESTIFIED TO, AND COUNSEL SAYS THAT JUST WOULD HAVE COME IN TO SHOW HIS CHARACTER. SO IS THAT CORRECT THAT THAT'S WHAT THE RECORD AT THAT TIME REFLECTED, THAT IS THAT THERE REALLY ANT DEVELOPMENT TO SAY, JUDGE, WE'VE GOT TO HAVE THIS EVIDENCE BECAUSE HE SEXUALLY ABUSED HIS YOUNG SISTERS FOR AN EXTENDED PERIOD OF TIME AND BECAME VIOLENT WITH THEM, THAT'S NOT IN THAT RECORD.
LET ME GO BACK TO THIS -- ORIGINAL DIRECT APPEAL DECISION TO ANSWER THE QUESTION. [INAUDIBLE]
DEFENSE COUNSEL OFFERED TESTIMONY FROM A NUMBER OF PEOPLE WITH RESPECT TO WHETHER OR NOT RICHARD HITCHCOCK HAD EVER PRESENTED VIOLENT TENDENCIES. THIS BOARD ULTIMATELY DECIDED -- [INAUDIBLE] THE EXCLUDED TESTIMONY COULD -- ONLY SHOW RICHARD HITCHCOCK'S VIOLENT PROPENSITIES AND, THUS, WAS PROPERLY EXCLUDED FOR IMPEACHMENT.
BUT WHAT WE HAD IN FRONT OF US WAS A RECORD THAT SAID NOTHING ABOUT SEXUALLY ABUSING FAMILY MEMBERS AND BECOMING VIOLENT. I WOULD AGREE WITH THAT EVEN TODAY IF SOMEONE TRIED TO GET INTO A THIRD PARTY'S VIOLENT TENDENCIES IN A -- SLAM CUBE ADVANTAGE CHEMO -- WHAT DOES THE RECORD REVEAL ABOUT HOW COUNSEL ATTEMPT TODAY PUT IN A PROPER TESTIMONY BY BRENDA AND MARTHA ABOUT THE SEXUAL ABUSE AND THEN BECOMING VIOLENT UNDER CERTAIN CIRCUMSTANCES?
I DON'T RECALL THAT THAT WAS COMPLETELY DEVELOPED AT TRIAL.
AND WHAT IS IT -- DID THE TRIAL COURT IN THIS CASE MAKE A FINDING OF WHAT WOULD BE ISSUE 3 WHICH IS INEFFECTIVE ASSISTANCE OF COUNSEL IN OPENING THE DOOR TO BAD CHARACTER EVIDENCE AGAINST JAMES AND FAILING TO ELICIT APPROPRIATE EVIDENCE AS TO WHETHER COUNSEL WAS DEFICIENT IN THAT WAY OR NOT? IS THERE ANYTHING ABOUT THAT FINDING THAT WE WOULD HAVE TO RELY ON IN THIS CASE?
YES, TWO-PART QUESTION.
BOTH PART OF ISSUE 3 THOUGH.
RIGHT. THE IMPROPERLY OPENING THE DOOR GOES TO -- THEN GIRLFRIEND -- [INAUDIBLE] TRIAL COURT FOUND THERE WAS EVIDENCE -- THE STATE HAD PRODUCED EVIDENCE THAT WAS A BIT NASTY. HE TURNED AROUND AND TESTIFIED THAT HE HAD NOT INJURED HER, NOR WAS SHE FRIGHTENED OF HIM. THERE WAS NO REASON TO BE AFRAID OF HIM. SO WHAT YOU HAVE HERE IS A -- ISSUE AT BEST WITH RESPECT TO WHAT COUNSEL KNEW ABOUT THE ALLEGED SEXUAL ABUSE OF RICHARD -- BY RICHARD HITCHCOCK OF HIS SISTERS, WE DON'T KNOW. BECAUSE THE TRIAL ATTORNEY KNOWS -- [INAUDIBLE] NOWHERE TO BE FOUND. TRIAL COUNSEL HAS NO INDEPENDENT MEMORY OF IT.
LET ME ASK YOU THIS BECAUSE I'M CONFUSED ABOUT THIS REVERSE WILLIAMS RULE ISSUE. SEEMS TO ME THAT THE EVIDENCE THAT'S SOUGHT TO BE ADMITTED IS THAT RICHARD HITCHCOCK SEXUALLY ABUSED HIS FAMILY MEMBERS. WE STILL CONCEDE THAT IT WAS JAMES HITCHCOCK THAT COMMITTED RAPE, NOT RICHARD HITCHCOCK. RICHARD HITCHCOCK ONLY COMMITTED THE MURDER.
WHICH IS INCONSISTENT. THE NOTION THAT WE VIEWED THE VICTIM, CYNTHIA DRIGGERS WOULD KILL HER RATHER THAN HIS BROTHER -- [INAUDIBLE] WHAT WE'RE REALLY DEALING WITH. FIRST ISSUE IS WHETHER OR NOT THE THRESHOLD ISSUE IS WHETHER OR NOT TRIAL COUNSEL CAN BE CONSTITUTIONALLY INEFFECTIVE FOR NOT -- A LEGAL THEORY THAT DID NOT EXIST.
AND YOU AGREE THAT IT DID NOT -- REVERSE WILLIAMS RULE DID NOT EXIST AT THE TIME OF THE TRIAL?
THE FIRST TIME IT'S USED IN A RECORDED SESSION THAT I CAN FIND IS 1996. SO THAT'S THE FIRST. THE DEFENSE HAS TO GET OVER, AND CASE LAW MAKES IT VERY CLEAR, THAT COUNSEL CANNOT BE CONSTITUTIONALLY INEBBFECTIVE -- INEFFECTIVE UNDER THOSE CIRCUMSTANCES WHEN THE LEGAL THEORY THAT DEFENSE COUNSEL SAYS HE SHOULD HAVE USED DIDN'T EVEN EXIST?
QLOWLD WOULD YOU FAST FORWARD JUST A LITTLE BIT BECAUSE OF LIMITED TIME AND ADDRESS THE ISSUE ABOUT -- APPARENTLY YOUNGER SISTERS OF RICHARD THAT TESTIFIED THAT HE HAD SEXUALLY ABUSED THEM FOR A PERIOD OF MANY YEARS, AND THEN WE END UP WITH, IF I'M UNDERSTANDING THE ARGUMENT PROPERLY, THAT TWO OF THEM TESTIFIED THAT HE EVENTUALLY CONFESSED TO THEM THAT HE ACTUALLY COMMITTED THE MURDER HERE AND THAT JAMES DID NOT. TRIAL COURT ENDED UP FINDING THEIR TESTIMONY NOT CREDIBLE. WOULD YOU HELP US WITH A BASIS FOR NOT FINDING THEIR TESTIMONY CREDIBLE? THAT IS IT APPEARS THEARCH ACCEPTED THE PROPOSITION THAT RICHARD, INDEED, WAS A VERY BAD ACTOR AND DID SEXUALLY ABUSE, YOU KNOW, THESE GIRLS WHEN THEY WERE CHILDREN UP UNTIL THEIR TEENAGE YEARS. THE STATE, NO ONE ELSE SEEMS TO DISPUTE THE CREDIBILITY OF THAT EVIDENCE. TELL ME WHO WERE TH WITNESSES THAT THEN CAME IN AS NEWLY DISCOVERED EVIDENCE OR WHATEVER AND SAID, WELL, RICHARD ACTUALLY, FINALLY, CONFESSED TO US? AND THEN JUDGE FOUND THEIR TESTIMONY NOT CREDIBLE? I'M INTERESTED IN IDENTIFYING THEM AND THEN EXPLAIN TO US WHAT THE BASIS WOULD BE FOR A FINDING THAT THEIR TESTIMONY WAS NOT CREDIBLE?
YOUR HONOR, TO ANSWER ONE OF YOUR QUESTIONS -- SISTERS TESTIFIED ABOUT THE SEX ABUSE. THERE WERE TWO PEOPLE WHO TESTIFIED AT THIS EVIDENTIARY HEARING ABOUT THE ALLEGED CONFESSION BY RICHARD. ONE WAS ROSY ME CHUM. [INAUDIBLE] THE OTHER SISTER, THE SISTER THAT TESTIFIED, WANDA GREEN IS HOW I BELIEVE HER NAME APPEARS IN THE MATERIAL CONFESSION, THOSE ARE THE ONLY TWO PEOPLE THAT TESTIFIED ABOUT ANY ALLEGED CON CONFESSION BY RICHARD. --
START WITH GREEN. WHAT DID SHE, WHAT WERE THE CIRCUMSTANCES OF RICHARD CONFESSING TO HER? AND THEN WHAT WOULD BE THE BASIS FOR THE COURT TO FIND THAT HER TESTIMONY WASN'T CREDIBLE? IN OTHER WORDS, WHAT WAS THE CONTEXT OF HIM CON -- WHAT DID SHE SAY AS FAR AS HOW HE CAME TO CONFESS TO HER THAT, NO, HE IS REALLY THE ONE THAT MURDERED THE VICTIM? AND THEN WHAT WOULD BE THE BASIS OF FINDING THAT TESTIMONY NOT CREDIBLE?
WANDA HITCHCOCK GREEN, SHE'S THE SISTER --
SHE'S THE LITTLE SISTER.
TO BOTH RICHARD AND JAMES.
SHE WAS ONE OF THE LITTLE SISTERS THAT WAS SEXUALLY ABUSED OVER A PERIOD OF YEARS, RIGHT?
YES, YOUR HONOR. SHE SAID RICHARD SEXUALLY ASSAULTED HER.
SO SHE WASN'T ONE OF THEM THAT WAS SEXUALLY ABUSED OVER A PERIOD OF YEARS?
SHE ALSO WENT ON TO SAY THAT SHE WOULD NOT HAVE TALKED TO THE DEFENSE ATTORNEYS ABOUT RICHARD. WANDA GREEN, JUST TO PUT THIS IN PERSPECTIVE, WANDA GREEN IS THE ONE WHO HELDAL PRESS CONFERENCE IN 1996, AND THAT'S THE FIRST TIME WE HEARD ANYTHING ABOUT A CONFESSION TO ANYBODY. IT WAS ON THE 10:00 NEWS THAT EVENING. THAT'S THE FIRST ANYBODY HEARD --
SHE HAD A PRESS CONFERENCE AND SAID I WANT TO ANNOUNCE TO THE WORLD --
NOT QUITE THAT -- [INAUDIBLE] BUT LITERALLY ON THE 10:00 NEWS THAT NIGHT WAS THE FIRST THAT I HAD HEARD OF THIS.
THAT HIV ARD -- RICHARD HAD CONFESSED TO HER?
RIGHT. NOW, THAT PRECIPITATES -- [INAUDIBLE] WENT BACK FOR A HEAR ING BUT PROCEEDINGS WE CHANGED JUDGES FOR REASONS THAT I DON'T RECALL. JUDGE CONRAD WOUND UP WITH THE CASE ON THE NEW TRIAL MOTION, LET'S JUST CALL IT THAT SINCE 1300'S NOT REALLY APPROPRIATE. JUDGE CONRAD HEARS MS. GREEN AND A COUPLE OF OTHER WITNESSES WHOSE NAMES ARE ESCAPING ME AT THE MOMENT TESTIFY, THAT COMES UP WITH ESSENTIALLY WHAT YOU ALL SAID -- [INAUDIBLE] DEALING WITH THE CASE. THE CASE GOES BACK, COMES BACK IN FRONT OF THE BENCH. NOW WE'RE UP HERE WITH WANDA GREEN TESTIFYING IN FRONT OF JUDGE -- HE APPEARED BEFORE -- [INAUDIBLE] WATCHES SIT ON THE STAND AS SHE TESTIFIES AND FINDS HER TESTIMONY IS NOT CREDIBLE. HE IS ABSOLUTELY ALLOWED TO DO THAT. THE FACT FINDER UNDER 804 HEARSAY EXCEPTION STILL GETS -- THE CREDIBILITY CHOICE OF THE TESTIFYING WITNESS REGARDLESS OF WHETHER OR NOT IT'S A JUDGE OR JURY.
BUT AREN'T THERE SOME THINGS YOU CAN POINT TO, FOR INSTANCE, IS IT A FACT IN THIS CASE THAT SHE CLAIMS THAT RICHARD HAD CONFESS TODAY HER A LONG TIME BEFORE, YET SHE'S NOT COMING FORWARD UNTIL, YOU KNOW, WAY LATER? IS THAT A FACTOR IN THIS CASE, OR IS THAT NOT?
ONE OF THE PRINCIPLE REASONS THAT JUDGE WHITEHEAD USED OR RELATED WITH RESPECT TO THE CREDIBILITY DETERMINATION, AGAIN -- [INAUDIBLE] WAS THE SUBSTANTIAL AND SIGNIFICANT DELAY IN COMING FORWARD WITH THIS EVIDENCE.
AND WHAT WAS THE DELAY?
YEARS. YEARS AND YEARS AND YEARS. RICHARD DIED IN 1994. OBVIOUSLY --
BUT ISN'T THAT THE YEAR THAT HE ACTUALLY, SHE SAYS THAT HE ACTUALLY MADE THE CONFESSION? IT WASN'T YEARS AND YEARS AND YEARS. IT WAS '94 THAT ALLEGEDLY HE MADE THE CONFESSION, CORRECT? AND HE MAKES THE STATEMENT IN '96?
WANDA SAID '93-'94. THIS CASE WAS STILL BOUNCING AROUND IN THE COURT SYSTEM. NOBODY SAID ANYTHING. THESE ARE HITCHCOCK'S RELATIVES. THEY WAITED UNTIL RICHARD WAS DEAD UNTIL THEY SAID ANYTHING, AND I WOULD SUGGEST THAT -- [INAUDIBLE] WHERE ONCE SOMEBODY DIES, THEY TURN INTO THE PRIME SUSPECT.
WELL, WHAT ABOUT, THOUGH, JUDY GAMBILL AND ROBBIE ME CHUM? NEITHER OF THEM ARE, WELL, JUDY GAMBILL IS A NIECE, BUT HERS IS COMING IN AS NEWLY-DISCOVERED EVIDENCE BECAUSE IT WAS AFTER THE DEATH, AND HE TRY TODAY MOLEST HER SEXUALLY, AND THAT'S WHEN HE SAID IF SHE DIDN'T IT? , THE -- SUBMIT, THE SAME THING WOULD HAPPEN TO HER THAT HAPPENED TO CINDY, AND [INAUDIBLE] SAID RICHARD CONFESSED TO KILLING THAT GIRL IN FLORIDA AND BLAMED THE BROTHER AND THREATENED HER SAYING HE HAD TILL R KILLED BEFORE? NOW, THOSE ARE TWO NONDIRECT SIBLINGS. SO THERE WERE THE THREE. GREEN I UNDERSTAND, BUT WHAT ABOUT GAMBILL AND MEA, WHICH H -- GAMBILL IS RICHARD'S NIECE.
[INAUDIBLE] SAID THERE WASN'T EVIDENCE TO SUGGEST WHO SHE WAS. [INAUDIBLE] THAT THE NEWLY-DISCOVERED EVIDENCE SUFFERED FROM AN APPARENT LACK OF CREDIBILITY. DEFENDANT DOES NOT ESTABLISH -- AND I'M QUOTING -- A SOUND OR CREDIBLE EXPLANATION FOR THE EXTENSIVE DELAY DEMONSTRATED BY THESE WITNESSES IN REPORTING VICTIM'S ALLEGED CONFESSION.
IT'S NOT REALLY A CONFESSION, IS IT, WHEN YOU SAY THE SAME THING'S GOING TO HAPPEN TO YOU THAT HAPPENED TO THE OTHER GIRL? THAT DOESN'T MEAN HE'S CONFESSING, NECESSARILY, TO THAT MURDER.
TO CALL THAT A CONFESSION WOULD BE EXTREMELY GENEROUS. THAT IS NOT A CONFESSION, THAT'S THAT'S --
IT MAY BE A THREAT.
BUT IT'S NOT A CONFESSION.
YOU'VE EXHAUSTED YOUR TIME.
YOUR HONOR, I APOLOGIZE. [INAUDIBLE]
GIVE HIM TWO MINUTES ON REBUTTAL.
IF -- [INAUDIBLE] WANDA HITCHCOCK GREEN DID TAKE LESS THAN TWO YEARS BEFORE SHE CAME FORWARD. IT WASN'T A PRESS CONFERENCE, IT WAS WHEN A NEWS REPORTER STUCK A MICROPHONE IN FRONT OF HER FACE, AND SHE WAS TRYING TO TELL THE TRUTH. UNSOPHISTICATED PEOPLE FROM ARKANSAS --
AND DID JUDGE CONRAD HAVE A HERING ON THAT -- HEARING ON THAT ISSUE EARLIER?
[INAUDIBLE]
DID JUDGE CONRAD FIND THAT. [APPLAUSE] GREEN WAS NOT CREDIBLE CONCERN -- MS. GREEN WAS NOT CREDIBLE?
[INAUDIBLE] IN THIS CASE BECAUSE ONLY ON THE POST-CONVICTION EVIDENCE THAT BETWEEN --
DID HE FIND THE OTHER TWO NOT CREDIBLE?
JUDGE CONRAD DID NOT HEAR FROM ME CHUM BECAUSE --
SO DID JUDGE WHITE HEAD FIND HER NOT TO BE CREDIBLE? I DON'T KNOW IF THERE WAS A SPECIFIC THAT WENT INTO SOME OF THAT STUFF. MS. ME CHUM, FOR THE RECORD, DENIED SHE HAD A ROMANTIC RELATIONSHIP WITH MR. HITCHCOCK.
SHE ALSO SAYS THAT THIS CONFESSION TOOK PLACE IN 1994. AND HE DIED IN 1994, I BELIEVE, SO WHAT WAS, WHAT PRECIPITATED THIS LONG DELAY IN HER EVER SAYING ANYTHING ABOUT THIS? EVEN AFTER HE WAS DEAD?
SHE WAS STILL AFRAID. SHE WAS TERRIFIED, AND PEOPLE NOT DEALING WITH LIKE, YOU KNOW, LAWYERS --
THAT'S THE EXCUSE WE USE FOR SAYING WHY SOMEBODY DIDN'T COME FORWARD EARLIER AS FAR AS THE NEWLY-DISCOVERED EARLIER, WE DON'T SAY, WELL, YOU WERE AFRAID, SO IT'S OKAY. YOU STILL HAVE AN OBLIGATION TO PRESENT IT, DON'T YOU?
WELL, AS SOON AS WE HAD IT, WE PRESENTED. THOSE FAMILIES, THE ONLY THING WE CAN SAY IS WE'RE THANKFUL THEY DID COME FORWARD, SO NOW WE SHOULD HAVE THE OPPORTUNITY FOR A TRIAL THAT'S CONSISTENT WITH THE TRUTH AND --
WITH OUR ASSISTANCE, YOU'VE NOW UTILIZED THE REST OF YOUR TIME.
THANK YOU.
THANK YOU VERY MUCH. THE COURT WILL TAKE ITS MORNING RECESS.
ALL RISE.