MARSHAL: PLEASE RISE. PLEASE BE SEATED.

CHIEF JUSTICE: THE LAST CASE ON THE COURT'S CALENDAR F OR THIS MORNING , IS FLOYD VERSUS THE STATE OF FLORIDA. MR. CON NOR , A RE YOU READY ?

JUSTICES , GO OD MORNING. MAY IT PLEASE THE COURT.I AM DOUGLAS CONNOR REPRESENTING THE APPELLANTIN THIS CASE , FRANKLIN FLOYD. THIS IS A , FR OM FIRST-DEGREE CONVICTION OF MURDER AND SENTENCE OF DEATH IMPOSED I N PINELLAS COUN TY. IN MARCH 1995 , SKELETAL REMAINS WERE FOUND BY HIGHWAY WORKERS IN P INELLAS COUNTY .

MR . CONNOR, YOU KNOW THAT YOU KNOW THAT WE ARE VERY FAMILIAR WITH THE FACTS ANDI THINK YOU HAVE SOME SUBSTANTIAL POINTS TO ARGUE. DO YOU WAN T TO TELL U S WHICHPOINTS YOU ARE GO ING TO A RGUE AND PROCEED FROM THERE.

OKAY. YES. I PLAN TO ADDRESS THE IS SUE TWO , WHICH IS THE ADMISSIONOF THE COLLATERAL CRIME EVIDENCE. I , ALSO , ISSUE THREE, WHICH IS THE ADDITION OF THEPHOTOGRAPHS , AND ISSUE FOUR , ALSO , TIME PERMITTING, WHICH WAS TESTIMONY BY AN FBI EXAMINER, REG ARDING COMPARISON S.

SO WHY DON'T YOU GET RIGHT INTO THE ISSUE ABOUT THIS IS THE COLLATERAL CRIME OF THE KIDNAPING AND THE STEALING OF THE TR UCK I N WHICH THE PHOTOGRAPHS WERE FOUND.

YES. YES. THIS WAS, OCCURRED APPROXIMATELY FIVE Y E ARS A FTER THE HO MICIDE , W HICH IS IN QU ESTION HERE. AND IT WAS IN OKLAHOMA . MR. FL OYD KIDNAPPED AN ELEMENTARY SCHOOL PRINCIPAL AND A FIRST GRADE CHILD , L EFT THE PRINCIPAL TIED TO A TREE IN THE WOOD S AND THEN TOOK THE PRIN CIPAL 'S VE HICLE , WHICH WAS A PI CKUP TRU CK, AND THE CH ILD AND DROVE AWAY .

WHY DIDN 'T , WHY ISN'T IT SUFFICIENT WITH THE TR IAL , WHAT THE TRIAL JU DGE DID HERE, TO SAN - - TO SANITIZE , BECAUSE YOU MUST AGREE THAT THE PHOTOG RAPHS WERE SOMETHING OBTA INED THAT WAS SOMETHING THAT WAS DIRECTLY

OUR POSITION IS THE SAME AS DE FENSE COUNSEL AT TRIA L, WHICH WAS THAT, YES, WHAT IS RELEVANT IS THAT HE HAD POSSESSION OF THE ELEMENTARY S CHOOL PRINCE PALE PAL 'S PRINCIPAL'S TRUCK , AND HE W OULD STIPULAT E THAT H E STOLE THE TRUCK , YOU KNOW , WAS NOT THE PRINCIPAL'S INTENTION T O LET HIM USE THEVEHICLE , BUT H E HADPOSSESSION OF THAT TRUCK, AND SO THAT WOULD GIVE HIMAN OPPORTUNITY TO HAVE , TO PUT THE PHOTOGRAPHS THERE . AND IT I S OUR POS ITION ANDSTILL IS , THAT THAT IS ALL THAT SHOULD HAVE COME BEFORE THE JU RY.

WHAT ABOUT THE FACT THAT HE, WHERE HE PAR KED NE XT TO THE HAY BALS , AND THAT THERE WERE IT EMS THAT HE WAS REMOVING TO THE TRUCK.

WHAT HE DID IS HE TO OKTHE PRINCIPAL AND FIRST GRADE CHILD TO ARE TO WHERE HE HAD A MAKESHIFT CAMPGROUND. HE HAD HIS SLEEPING BAGTHERE. I T WAS HIS STUFF. IT IS WHER E HE LIVED AT THAT PARTICULAR POINT IN TIME .

SO WHY AREN'T THOSE DETAILS , AND , A GAIN , UNDERSTANDING THAT YOU SE EMTO AGREE THAT THIS IS AN ORDINARY WILLIAMS RULE SITUATION.THIS IS NOT TO SHOW A N INEXTRICABLY INTERTWINED. THIS IS TO SHOW THE BASIS FOR THE PHOTOGRAPHS BEING I N THIS TRUCK THAT DID NOT BELONG TO HIM, SO WHY ISN 'T, ALSO, THE FACT THAT HOW HE GOT THERE , THE FACT OF WHERE THE TRUCK WAS PARKED , THE FACT OF THE LO ADING IN O F THE PROPERTY, ALSO , R E LEVANT TO THE S T ATE'S CASE.

WELL , THAT HAS SUCH MARGINAL RELEVANCE, THAT I WOULD SAY EVEN THAT SHOULD BE EXCLUDED ON THE 403ANALYSIS, BUT EVEN I F WE SAY, WELL , WE COULD HAVE LET THAT IN , I MEAN , THE POINTIS, REA LLY , THE EV IDENCE WASN'T SANITIZED. THAT IS WHAT THE TRIAL JUDGE SAID SH E WAS DOING , BUT IT REALLY WASN'T , BECAUSE WHAT SHE DISALLOWED WAS MENTIONOF A GUN GUNN AND MENTION OF THREATS OF DEATH. NOW , IT WAS VERY CLE AR TO THE JURY AND THE PRINCIPAL , HIMSELF , SAID, WELL , NO, HE DIDN'T CONSEN T TO G O ALONGON THIS , HE DIDN'T CONS ENT TO GO WITH MR . FLO YD IN THE TRUCK.IT WAS OBVI OUS THAT THERE MUST HAVE BEEN A WE APON USED , THERE MUST HAVE BEEN SOME SORT OF THRE ATS. THEY WEREN'T GOING OUT FOR A PICNIC OR ANYTHING LIKE THAT , AND SO THAT IS WHY I SAY THEFACT THAT THAT WAS SANITIZED , DOESN'T REALLY MA TTER , BECAUSE THE JURY OBVIOUSLY UNDERSTOOD THAT THERE MUST HAVE BEEP A WEA PON AND THEREMUST HAVE MUST HAVE BEEN A WEAPON AND TH ERE MUST HAVE BEEN THREATS , OR EL SE THE PRINCIPAL WOULDN'T HAVE TAKEN A FIRST GRADER OUT OF THE CLASSROOM AND OFF WITH FLOYD IN A TRUCK.

THE QUESTION I HAVE, BECAUSE I MI GHT AGREE THE FACT WHY DO YOU NEED TO SHOW THAT HE WAS TIED TO THE TREE , , THAT FACT , B UT IN CON TEXT , HOW DID THAT BECOME SO INFLAMMATORY, I MEAN , CONSIDERING THE FACTS OFTHIS CRIME AND THE O VERALL SITUATION , WAS THIS, THIS BECOME A HIGHLIGHT OF THE STATE'S CASE?

WELL, IT DID , AND IT IS ALSO, REALLY , THE MOST INFLAMMATORY PART. YOU KNOW, THE FACT OF THE MATTER IS , IS THAT YOU KNOW , THE D ANCERS FROM CLUBS ARE OFTEN VICTIMS OF CRIM ES, ANDSO, YOU KNOW, BUT TO SHOW FLOYD, WHAT THEY HAD TO SHOW ABOUT MR. FLOYD BECAUSE THEY N EVER CONN ECTED HIM AT AL L TO THE ACTUAL SHOOTING OF THE DA NCER , WHICH IS WHAT CAUSED HER DEA TH. THEY HAD NO CONNECTION WHATSOEVER , YOU KNOW , EVIDENCE ON THAT PART . WHATSOEVER. WHAT THEY HAD TO SHOW, THAT HERE WAS THE PERSON WHO COULD DO OUTRAGEOUS LY DRAMATIC, YOU KNOW , VIOLENTACTS, AND THAT IS WAS TO CONVINCE THE JURY , IF YOU SHOWED THEM THAT THEY WOULD , HE WOULD DO SOMETHING EVEN WORSE , IF SOMETHING CA N BE WORSE , YOU KNOW, THAT WAS REALLY A PART OF THEIR , THATWAS THE REASON THAT THE STATE WANTED THIS EVIDENCE IN.

HOW LONG DID THE TRIAL LAST ?

IT WAS A LONG TRIAL. I AM NOT SURE IF IT WAS TEN DAYS OR LESS .

THIS TRANSCRIPT, THIS IS , LIKE , TEN P A GES AFTER TEN -DAY, TEN PAGES OF THE TRANSCRIPT OF A TEN- DAY TRIAL IS WHAT THIS EVID ENCE CONSUMES APPROXIMATELY.

WELL , NOW , WHEN I SAY TEN DAYS, I AM TALKING ABOUT JURY SELE CTION AND THERE I S APPROXIMATELY TEN PAGES , BUT IT IS NOT THE NUMBER OF PAGES , IT IS NOT THE LE NGTH OF THE TESTIMONY. IT IS THE INFLAMMATORY NATURE OF THE SPEAKING OF THE CRIME.

WAS IT REFERENCED IN OPENING STATEMENTS OR CLOSING ARGUM ENTS BY THESTATE?

I AM PRETTY SUR E THAT IT WAS MENTIONED IN CL OSING , BUT I CAN'T VOUCH FOR THAT. I DON'T REME MBER SPECIFICALLY.

BUT CERTAINLY YOU WOULD REMEMBER IT , YOU HAVE MA DEAN ARGU MENT WHAT THE STATEWOULD HAVE ARGUED , CERTAINLY IF THEY HAD USED THIS TO SAYHERE IS A GU Y THAT IS CAPABLE OF ANYTHING , HE KIDNAPPED A YOUNG C HILD AND A PRINCIPAL , NOW YOU WOULDBE TALKING ABOUT A DIFFERENT ISSUE. YOU DON'T POINT TO ANYTHING IN CLO SING ARGUMENT OF THAT NATURE.

NO. NO. NOT OF THAT N ATURE , NO.

THE COURT ALSO GAVE A LIMITING INSTRUCTION AS TOTHEY HAVE HAD , CORRECT?

WELL , WHAT THE COURT DID , IT WAS ACTUALLY, TO MY OPINION WAS NOT LIMITING. IT WAS AN AGGRAVATING INSTRUCTION , BECAUSE I HAVE NEVER SEEN A JUDGE TELL THE JURY WHAT A WIT NESS I S GO ING TO TESTIFY FOR THE PROSECUTION, BE FORE THE WITNESS ACTUALLY TESTIFIED , AND THAT IS WHAT SHE DID. SHE , BEFORE THEY PRESENTED THE WITN ESS, THE JUDGE TO LDTHE JURY HE IS GOING TO TESTIFY TO THIS , HE IS G OING TO TESTIFY TO THAT , HE IS G OING TO TESTIF Y TO THIS, AND FO CUSING THEIR ATT ENTION ON THIS IS A VERY IMPORTANT PART OF THE TR IAL.

IS THERE AN OBJECTION TO THAT LIM ITING INSTRUCTION?

THERE WAS NOT .

IT SEEMS TO ME, AGAIN , THAT EVERYTHING THAT THE JUDGE ATTEMP TED TO DO , IN THAT THE PROSE CUTOR WAS ASKING LEADING QUESTIONS, WAS, ALL , DESIGNED TO MAKE SURE IT DIDN'T GO B E YOND WHAT HAD BEEN DEGREED TO.

WELL , IT WHAT HAD BEEN A GREED TO .

WELL, IT WASN'T AGREED TO. THAT WAS HER RULING.

WHAT HAD BEEN DISCHARGED

AND THE FACT OF THE R ULING ITSE LF , WAS BASED ON A VERY FA ULTY LEGALREASONING , BECAUSE SHE ADMITTED THIS ON THE I DEA THAT IT SHOWED HIS STATE OF MIND AND REFERRED TO CASES VASQUEZ AND CA RUSO . NOW , THOSE ARE CASES WHERE COLLATERAL CRIME WAS ADMITTED, IN ORDER TO SHOW THE DEFENDANT'S STATE OF MIND WHEN HE COMMITTED THECRIME FOR WHICH HE WAS BEING TRIED. NOW, THIS CRIME HAPPENED FIVE YE ARS AFTER THE COMMESSO HOMI CIDE, SO THEREIS NO WAY THAT HIS STATE OF MIND FIVE YEARS LATER, C OULD HAVE BEEN RELEVANT TO

I THOUGHT THAT WAS WHY SHE ALLOWED IN THE WHOLEPACK OF PHOTOGRAPHS. NO. YOU ARE SAYING THERE WAS A RULING ABOUT LETTING IN THIS EVIDENCE OF THE KIDNAPING , WAS TO SHOW HIS STATE OF MIND?

IF I CAN READ FROM , I AM SORRY , I DON 'T HAVE THE ORDER WITH ME .

CHIEF JUSTICE: OKAY.WELL, WE CAN LO OK AT THAT.

THERE IS A ORDER THAT SPECIFICALLY SAID IT WAS BEING ADMITTED TO SHOW STATE OF MIND AND C ITED VASQUEZ AND CAR USO , DECISIONS BY THIS COURT AS AUTHORITY FOR ADMITTING THE WHOLE TESTIMONY ABOUT THE TYINGTHE PRINCIPAL TO THE TREE AND THE WHOLE KIDNAPING AND CARJACKING IN CIDENT .

CHIEF JUSTICE: AND YOU WANT TO GO ON TO THE PHOTOGRAPHS.

OKAY . PHOTOGRAPHS , NOW , IN THIS, IN THESE PHOTOGRAPHS THAT WERE FOUND, IT WAS IN AN ENVELOPE CONTAINED 97 PHOTOGRAPHS ALL TO GETHER . NOW , 1 6 OF THEM WERE OF COMMESSO, WHEN SHE WAS BO UND AND HAD BEEN BE ATEN . NOW , S E VEN , OUT OF ALL OF THOSE 97 , SEVEN WERE ACTION CLUEDED BY THE SEVEN WERE EXCLUDED BY THE TRIAL JUDGEAS BEING OUTRAGEOUS CH ILD PORNOGRAPHY. HOWEVER, SHE ADMITTED THAT ALOT OF THE PHOTOGRAPHS THAT SHE WAS LETTING INTO EVIDENCE WOULD BE CONS IDERED C HILD PORNOGRAPHY AS WELL.

I AM NOT SURE IF THE COUNSEL EVER IDENTI FIED SPECIFIC PHOTOGRAPHS THAT WERE OBJECTIONABLE AS OPPOSED TO GROUPS OF PHOTOGRAPHS OR THE PHOTOGRAPHS IN GENERAL.

COUNSEL'S POSITION WAS SIMPLY THAT ANY N UDE PHOTOGRAPHS , YOU KNOW , PARTICULARLY OF PEOPLE WHO WERE UNKNOWN AT ALL , WERE NOT AT ALL RELE VANT AND SHOULD NOT BE ADMITTED . THERE WERE ALSO SPECIFIC OBJECTION TO SAY USING SO MANY PHOTOGRAPHS OF A CHILD WHO WAS CLO THED , BUT WHO WAS POSED IN WHAT MI GHT BE CONSIDERED SEXUALLY HE VOK TIVE SEXUALLY EVOCATIVE TYPE POSES.

THE REASON THE STATE WANTED THEM INTRODUCED AND THE REASON THE COURT ALLOW THEM INTRODUCED, IS BECAUSE MANY OF THE POSES ARE THE SAME POSES IN WHICH THE VICTIM WAS FOUND IN SOME OF THOSE PICTURES AS WELL.

NO, YOUR HO NOR. THAT IS INCORRECT. IN FACT , WHAT THE JUDGE SAID , THE PHOTOS ARE S IMILAR IN KIND TO SHAR ON . NOW , SHARON WAS SHARON MARSHAL , WHO WAS LI VING WITH MR . FLOYD , WHEN HE WAS USINGTHE NAME WA RREN MA RCH SHA L. SHE WAS LIVING WARREN MARSHAL. SHE WAS LIVING AS HIS DAUGHTER. SHE LATER BECAME HIS WIFE. AND THERE WERE PHOTOGRAPHSOF HER THAT WERE IN THIS COLLECTION.

ALL RI GHT. AND THE PICTURES OF SHAR ON, THE FACT THAT THESE PHOTOGRAPHS WERE FOUND IN THAT CAR, THAT HE ST OLE , ANDTHE FACT THAT THIS WAS SHARON , PUT HIM , CONNECTED HIM WITH SHARON , CORRECT?

WELL

AND CONNECTED HIM WITH THE OTHER CHILDREN AND WITH THE VICTI M. IT WAS ALL TIED TOGETHER, WASN'T IT?

WELL, IT IS CONNECTED , YES. SHARON MAR SHALL HAD BEEN A DANCER WITH CHERYL COM MESSO , WHO WAS THE VIC TIM. SO THEY WERE CONNECTED ANDALSO THE FACT THAT THERE WERE PHOTOGRAPHS OF PE OPLE WHO FLOYD KN EW THAT WERE AMONG THESE 97.

SOME WERE O F AN OTHER DANCER'S OR ANOTHER FRIEND'S DAUGHTER, AS WELL?

FRIEND'S DAUGHTER.

AND SHE WAS IN THE SAME CLOTHES IN THOSE PICTURES AS OTHER PICTURES THAT THE F RIEND IDENTIFIED AS HER DAUGHTER WEARING.

YES. THERE WERE , THE FRIEND BROUGHT IN SOME PICTURES THAT FLOYD HAD T A KEN OF NORMAL PHOTOGRAPHS OF HER CHILD THAT HAD BEEN TAKEN AT THE SAME TIME , WHICH WERE COMPARED TO THE ON ES THAT HE, YOU KNOW, HAD POSED D URING THE SAME TIME PERIOD.

SO THAT WAS RELEVANT TO SHOW THAT FLOYD POSSESSED THESE PICTUR ES, NUMBER ONE , A ND HE COULD HAVE TAKEN THEPICTURES, NUMBER T WO.

YES.

AND THEY WERE PART OF THE PICTURES THAT WERE INCLUDED IN THE '97 WITH IN THE 97 WITH THE PICTURES OF THE VICTIM.

THAT'S CORREC T.

SO THEY CONNECTED THEM ALL TOGETHER, AND , A LSO , DID SOME OF THE PICTURES ALSO PORTRAY A SOFA IN THE BACKGROUND THAT SOME OF THE WITNESSES IDEN TIFIED AS BELONGING TO THE DEFENDANT?

WELL , THOSE WERE THE PHOTOGRAPHS OF THE VICT IM, HERSELF . COMMESSO. THERE WERE NO OTHER PHOTOGRAPHS , THOUGH , OF THE WE ARE SAYING THOSE PHOTOGRAPHS ARE DEFINITELY RELEVANT. THOSE DEFINITELY SHOULD HAVE BEEN.

ONES OF THE VICTIM, YOU A GREE ARE RELEVA NT, BUT OBVIOUSLY HE COULD ARGUETHAT, WELL , AN YONE COULDHAVE TAKEN THE PHOTOGRAPHSOF THE VICTIM , SO , NOW DO YOU AGREE THAT PHOTOGRAPHSOF THE VICTIM AND PHOTOGRAPHS OF SHARON , HIS DAUGHTER / WIFE , ALSO WOULD CONNECT UP HIM AS BEING THE ONE THAT, PER SON THAT TOOK ALL THE PHOTOGRAPHS?

WELL , IT CERTAINLY WAS, HAD TO BE THE STATE'S CASE THAT, YOU KNOW , THAT T HESE WERE ALL HIS PHOTOGRAPHS , YOU KNOW, OTHERWISE THAT THEY WERE JUST HER E, A BU NCH OF PHOTOGRAPHS AND WE DON'T KNOW WHO THEY ARE.

SO WHY ISN'T IT THERE FOR RELEVANT, OTHER THAN THEONES THAT WERE EXCLUDED AS BEING SO OUTRAGEOUS THAT ANY PROBATIVE V ALUE WAS OUTWEIGHED BY THE PREJUDICE , CAN YOU POINT , ARE THERE OTHER PHOTOGRAPHS THAT WERE LET IN THAT WERE SIMILARLY SO OUTRAGEOUS , BECAUSE , A GAIN, YOU ARE CONCEDING THAT THE PHOTOGRAPHS OF THE VICTIM SHOU LD HAVE COME IN . CORRECT ? THAT IS CORRECT?

WELL , YES , COR RECT. AND IT IS CORR ECT, ALSO , THAT

TH EY ARE PRETTY OUTRAGEOUS IN THEMSELVES.

WELL , OF COURSE.OF COURSE. B UT, YOU KNOW , THAT IS THECRIME. WHAT WE ARE TA LKING ABOUTHERE IS EVIDENCE OF OTHER CRIMES . NOW , CONNECT HIM TO THE PEOPLE THAT HE KNEW . THEY WERE PERFECTLY FINE PHOTOGRAPHS THAT DIDN'T SHOW ANY SORT OF PORNOGRAPHY , THAT COULD HAVE BEEN ADMITTED, AND THE FACT IS , AS WE HAVE HERE .

WHY WOULDN'T YOU HAVE TO HAVE THE PHOTOGRAPHS THAT WERE FOUND WITH THE PACKAGE , TO CONNECT THIS INDIVIDUAL TO THAT PAC KAGE OF PHOTOGRAPHS ? YOUR POS ITION OF THIS LADY COULD HAVE C OME IN AND HANDED PHOTOGRAPHS, BUT IF THEY WERE NOT CONNECTED TO THE PHOTOGRAPHS IN THEPACKAGE , IT WOULD NOT HAVE CONNECTED THIS INDIVIDUAL, MR. FLOYD , TO THAT PACKAGE OF PHOTOS.

NO. WE ARE NOT SAYING , WHAT WE ARE SAYING IS THE WHOLE PACKAGE OF PHOTOGRAPHSSHOULDN'T HAVE COME IN. WE ARE DEFINITELY SAYING THAT SOME OF THE PHOTOGRAPHS COULD HAVE COME IN , BUT NOT 90, WHEN THERE ARE ONLY 1 6 THAT ARE OF THE VICTIM. THIS WAS NO REAS ON TO ALLOW ALL OF THE PHOTOGRAPHS, PARTICULARLY THE ONES OF UNIDENTIFIED PEOPLE , YOU KNOW , THAT WAS, YOU KNOW , THE TRIAL JUDGE, HERSELF , SAID THIS IS CHILD PORNOGRAPHY.IT WAS EXTENSIVELY , THIS WAS EXTENSIVE

SHE EXCLUDED THOSE , RIGHT?

NO.NO. SHE SAID I AM LETTING IN LOTS OF PHOTOGRAPHS THAT W OULD BE CONSIDERED CHILD PORNOGRAPHY. SHE EXCLUDED ONLY THE SEVE N THAT SHE CONSIDERED THE VERY WORST THE , BUT YOU KNOW

THE ONES THAT SHE LET HIM WERE OF THE LET IN WERE OF THE FRIEND'S DAUGHTER, CORRECT?

NO. SHE ALSO LET I N NU DEPHOTOGRAPHS OF WOMEN AND CHILDREN. TIME TALKING ABOUT CHILDREN. MY UNDERSTANDING IS THAT THE ONLY PORNOGRAPHIC PHOTOGRAPHS OF CHILDREN WERE OF SHARON AND THE FRIEND'S DAUGHTER. I DON'T THINK EVEN THE FRIEND'S DAUGHTER.I THINK IT WAS JUST SHARON.

WELL

BUT EITHER WAY , IT WOULD CONNECT HIM TO

THAT IS NOT CORRECT , JUSTICE.

WHICH OTHER ONES?

THERE ARE ADMITTEDLY NUDE PHOTOGRAPHS OF CHILDREN AND POSSIBLY WOMEN , POSS IBLY TEENAGERS , THAT ARE IN THIS , IN THE SET.

I AM TALKING ABOUT CHILDREN. I AM NOT TALKING ABOUT WOMEN.

IN MY OPINION, THESE ARE CHILDREN, SI NCE WE DON'T KNOW WHO THEY ARE .

WHAT BASIS D O YOU HAVE TO SAY THEY ARE CH ILDREN , OTHER THAN OPINION?

WELL

WE KNOW IF THEY ARE CHILDREN OR NOT , RIGHT? WE DON'T KNOW THAT THEY ARECHILDREN, BECAUSE ALL WE SEE I S THE GENITAL ARE A, CORRECT?

YES. BUT THERE IS A DIFFERENCE BETWEEN A CHILD'S GE NITAL AREA AND AN AD ULT 'S , AND THAT IS WHAT YOU CAN SEE. AND IT IS ADMITTED BY THE TRIAL JUDGE , THAT YOU KNOW , THESE ARE PHOTOGRAPHS THAT WOULD BE CONSID ERED CHILD PORNOGRAPHY.

LET ME ASK YOU

THAT IS WHAT IT IS ARGUED IN THE CLOSING BY THE

LET M E ASK YOU A QUESTION. WAS THIS RAISED IN THEMOTION IN LI MINE PRET RIAL OR WHEN THE STATE SO UGHT TO ADMIT THE PHOTOGRAPHS?

IT WAS R A ISED EXTENSIVELY PRETRIAL, BUT THE JUDGE DEFERRED IT TO THE AC TUAL TIME WHEN IT CA ME, TO DECIDE WHICH PHOTOGRAPHS

IN THE OPENING STATEMENT, DID DEF ENSE COUNSEL MA KE A N OPENING STATEMENT?

I BELIEVE SO .

WAS THE DEFENSE BASICALLY , THAT THE, IN THE OPE NING STATEMENT , AND OTHERWISE , THAT THESE IT EMS WERE PLANTED.THEY WERE NOT MR . FLOYD'S. HE WASN'T THE PHOTOGRAPHER AND MS. COMMESSO WAS NOT IN THE PICTURES.WAS THAT THE ESSENTIAL DEFENSE OR WHAT WAS THEDEFENSE?

THE DEFENSE WAS JUST BASICALLY THAT THE STATE HASFAILED TO PROVE THEIR CASE.

NO. I MEAN IN OPENING STATEM ENTS , NOT THE E ND.

IN OPENING STATEMENTS .

WAS THERE ANY STATEMENT MADE REGARDING THESE PHOTOS?

I DON'T BELIEVE SO , BECAUSE I DON'T , A T THAT POINT I T HADN'T BEEN DETERMINED WHAT WOULD COME IN AND WHAT WOULD NOT COME IN.

OKAY .

ONE LAST QUESTION ABOUTTHAT, DID THE DEFENSE LAWYER MAKE DISCREET ARGU MENTS A BOUT CATEGORIES OF THESE PHOTOGRAPHS, IN TERMS O F THEIR ADMISSIBILITY? I THINK YOU CAN SEE THROUGH THE QUESTIONING HERE , THAT THERE APPEARS TO BE AT LEAST THREE CLEAR-CUT CATEGORIES OF THESE PHOTOGRAPHS THAT PROBABLY WOULD BE ADMISSIBLE . THE PHOTOGRAPHS OF THE VICTIM. THE PHOTOGRAPHS OF THE DEFENDANT 'S DAUGHTER. ALL R IGHT . TO CONNECT HIM TO THE PACKAGE THAT, A LSO , HAD, AND THEN THE PHOTOGRAPHS OF HIS FRIEND 'S DAUGHTER, OKAY , THAT, AGAIN , NOW , WOULD ESTABLISH HIS CONTACT WITH THAT PACKAGE OF PHOTOGRAPHS , AND SO THERE ARE AT LEAST THREE DISCREET CATE GORIES AMONGST THOSE PHOTOGRAPHS THAT ARGU ABLY WOULD BE ADMISSIBLE , THEN.

CORRECT. THEY ARE RELEVA NT. YES.

TO TIE HIM TO THE PACKAGE OF PHOTOGRAPHS, AND THEN INCLUDING THE PHOTOGRAPHS OF THE VICTIM. YOU KNOW, THAT HE WOULD HAVE IN HIS POSSESSION . NOW , DID THE DEFENSE LAWYER DISCREETLY BREAK UP THESE AND THEN ARGUE TO THE JUDGE, WELL, JUDGE , I CANUNDERSTAND WHY YOU M IGHT ADMIT THOSE, BUT THEN THERE ARE A CATEGORY OF PHOTOGRAPHS OF PEOPLE WE DON'T KNOW WHO THEY ARE. THEY ARE NOT THESE PEOPLE THAT I HAVE DESCRIBED IN THOSE THREE DISCREET CATEGORIES, AND TH ERE IS NO RELEVANCE I AT ALL TO THE ADMISSION OF THOSE PHOTOGRAPHS.

WELL

IS THAT WHAT DEFENSELAWYER DID?

HE DIDN'T DO Q UITE THAT.WHAT HE DID IS HE SAID, WELL , YES, THE VICTIM'S PICTURES COME IN. YES, WE SAY THAT A PICTURE OF SHARON MARSHALL CAN COME IN, BUT WE DON'T HAVE TO HAVE A LOT. WE DON'T HA VE TO HAVE ONES WHERE SHE IS UNCLOTHED. YES, WE CAN HAVE A PICTUREOR TWO OF THE CHILD, THE FRIEND'S CHILD THAT CAN COME IN, BUT WE DON'T N EED 20 OF THEM OF HER IN SEXUALLY EROTICA POSITIONS , AND WE CERTAINLY DON'T NEED UNIDENTIFIED PEOPLE JUST SHOWING , WHICH BAS ICALLY SHO WED GENITALIA .

WHAT ARE THE NUMBERS , IF WE TAKE , FOR INSTANCE , THOSE THREE DISCR EET CATEGO RIES , DO YOU KNOW HOW MUCH THAT MAKES UP, OF THE TOTAL 90 PICTURES THAT WERE ADMITTED?

WELL , LI KE I SAY, IT IS A QUESTION OF , YOU KNOW , ITHINK THERE WERE PROBABLY SEVEN OR E IGHT PHOTOGRAPHS OF SHARON MARS HALL ADMITTED. THE DEFENSE SAID ONLY TWO WOULD SUFF ICE .

I AM NOT TALKING ABOUT HOW MA NY WOULD SUFFICE. I AM JUST ASKING YOU IF YOU CAN TELL US THAT, IF WE TAKE THOSE THREE TO DAY CATHGOERS , D OES THAT CON THOSE THREE CATEGORIES, D OES THAT CONSTITUTE 70 OF THEPHOTOGRAPHS OR 20 OR DO YOUKNOW?

I WOULD SAY , THE UNIDENTIFIED, YOU KNOW , THE ONES THAT ARE TOTALLY

UNIDENTIFIED CONSTITUTE HOW MANY?

CONSTITUTE, MAYBE , HE N INE OR TEN. CONSTITUTE, MAYBE , NINE OR TEN. I DON'T KNOW THE AMOUNT, SO THAT IS S MALL COMPARED TO THE 90.

SO THE BULK OF THESE, THEN, SOME 80-PLUS , WERE IN THESE THREE CATEGORIES THAT WE HAVE TAL KED ABOUT. IS THAT CORRECT?

THAT WOULD BE CORRECT.

OKAY .

BUT , AGAIN, OF COURSE, OUR POSITION IS THAT IT WAS MADE TO BE PREJUDICIAL, ANDTHAT IS , IN FACT , THE WAY IT WAS USED.

THERE IS OTHER CATEGORIES WHICH WE HAVEN'T DISCUSSED, WHICH MAY BE A V ERY SMALLNUMBER OF PHOTOGRAPHS, BUT THEY ARE INNOCUOUS . THEY ARE HIS BOAT AND THINGS LIKE THAT.

CORRECT.

SO EVEN THOSE , I DON'T THINK YOU WOULD CARE ABOUT THOSE AND THOSE CERTAINLYCONNECT HIM UP AS WELL , SO THAT IS AN OTHER CATEGORY, ALTHOUGH THAT IS RESPONSIBLE FOR, MAYBE , ONE OR TWO OF THE PHOTOGRAPHS.

CORRECT. CORRECT. NOW , I THINK IT IS IMPORTANT THAT THE IS SUE O F SEXUAL DEPRAVITY IS A FEATURE OF THE CASE. IT WAS ARGUED EXTENSIVE LY IN CLOSING ARGUMENT . THE PROSE CUTOR REFERRED TO CHILD PORN , TEENAGED WOMEN IN VAR IOUS POSITIONS UNCLOTHED . HE WENT ON T O KEEP REFERRING TO THIS A S A LITTLE COLLECTION, AND HOW CHILDREN WERE IN SEXUALLY E ROTICA POSITIONS, AND YOU KNOW , JUST SHO ELING SHOWING HIS , THAT THIS JUST SHOWINGTHAT THIS WAS A MAN WHAT S ICK MIND.THAT OF HIS THE WHOLE POINT THAT WAS THE WHOLE POINTOF THIS EV IDENCE.

LET ME JUST GO BA CK. THE A CTUAL PHOTOGRAPHS OF THE VICTIM , THEMSELVES , WHICH SHOWS SOMEBODY WITH A SICK MIND.

TR UE, BUT THE POIN T IS THAT IS WHAT IS BEING TRIED. IS THIS THE PERSON WHO A CTUALLY COMMITTED THIS HOMICIDE?

THEN YOU HAVE , IT , WAS IT HIS BIOLOGICAL DAUGHTER?

NO. IT WAS NOT HIS BIOLOGICAL DAUGH TER.THIS WAS A WOMAN WHO APPARENTLY, I G UESS , A RUNAWAY WHO HE HAD BEFRIENDED AND ALLOWED TO LIVE WITH HIM .

DO YOU WANT TO G O ON TO YOUR NE XT POINT .

OKAY. THIS HAS TO DO WITH ALLO WING THE F BI EXAMINER , THOMAS MUSHRUMO, TO TESTIFY AS AN EXPERT WITNESS TO THE JU RY A BOUT THESE PHOTOGRAPHS. NOW , WHAT THEY SAID , BECAUSE OF HIS TRAINING WITH THE FBI , HE COULD DISTINGUISH DETAILS IN PHOTOGRAPHS AND OBJECTS IN A SIDE BY SIDE COMPARISON , AND BECAUS E HE DID THIS M ORE OFTEN THAN THE JURORS DID IT, HE HAS SPECIAL PO WERS , AND THEREFORE SHO ULD BE ALLOWED TO TESTI FY AS AN EX PERT .

HE ALSO IDENTIFIED ATHUMB , C ORRECT , AS CONSISTENT WITH THE DEFENDANT ' S?

YES. THAT, OF COURSE , IS WHAT IS PREJUDICIAL HERE, IS THE FACT THAT HE DID DO SIDE-BY-SIDE COMPARISONS OF THE , OF A TH UMB THAT WAS IN THE PICTURE , ONE OF THEPICTURES OF THE VICTIM WHEN SHE WAS BOUND AND B E ATEN W ITH A PHOTOGRAPH THAT HE HAD TAKEN OF MR . FLOY D'S THUMB WHILE HE WAS I N COUNTY JAIL. AND HE SAID THAT HE COULD F IND NO INCONSISTENCIES BETWEEN THE TWO OF THEM

CHIEF JUSTIC E: YOU ARE IN YOUR REBUTTAL, BUT IF YOU WANT, ARE THERE ANY OTHERPOINTS YOU WA NT TO TOUCH ON BEFORE YOU SIT DOWN?

NO.I WOULD JUST LIKE TO EXPAND SLIGHTLY ON THIS , AND THAT IS TO SA Y THAT USUALLY THEREIS NO RECOGNIZED EXP ERTISE INSIDE BY SIDE COMPAR ISON .

YOU ARE NOT TALKING ABOUT THE AC TUAL PRIN TS. YOU ARE JUST TALKIN G ABOUT THE ACTUAL THU MB, IT SELF , IS THAT WHAT WAS COMPAR ED?

YES. A PHOTOGRAPH OF A THUM B.

OF A THUMB NOT PRINTS.

NOT THUMB PRINTS.NO.

YOU ARE SAYING IT IS NOT A RECOGNIZED F IELD OF EXPERTISE?

THAT 'S CORRECT, AND U SUALLY THE EXPERTS INFORM THE JURY , GIVE THEM AN UNDERSTANDING OF SU BJECT MATTER WHICH THEY DON'T UND ERSTAND , THEMSELVES, AND ALL OF THE JURORS WERE PARTICULARLY CAPABLE O F COMPARING THINGS SIDE-BY-SIDE, TO TELL WHETHER IT LOOKED THE SA METO THEM OR NOT .

THIS WAS , THERE, IT WAS COMPARING OF A PHOTOGRAPH OF SOMETHING WITH, I GUESS, PHOTOGRAPHS OF THE SAME O BJECT , SIX YEARS LA TER, WHEN THEY WERE FOUND , IN A DETERIORATED CONDITION , CORRECT?

THAT WOULD BE, I GUESS , YEAH , THAT W OULD BE CORRECT, BUT, OF COURSE , YOU KNOW , THE PHOTOGRAPH, ITS ELF , WAS B LOWN UP AND ENHA NCED, SO THE RESULTING PRINTS THAT THE JURY SA W WERE ACTUALLY PRETTY GO OD.

SO WHAT YOU ARE TESTIFYING TO IS THIS PHOTOGRAPH AFTER EARRING OR NAIL PHOTOGRAPH OF AN E ARRING OR N AIL, IT RESEMBLES THE NA IL FO UND SIX YEARS LATER IN THE WO ODS, A FTER HAVING DETERIORATED WITH THE ELEMEN TS, OVER A PERIOD OF SIX YEARS.

YES. CORRECT.

HOW WAS HE TENDERED TO THE JURY?

AS AN EXPERT .

IN?

SIDE-BY-SIDE COMPARISON .

AND THEY WENT THROUGH HIS HISS TRAINING AND CREDENTIALS AND EXPERIENCE HIS TRAI NING AND CREDENTIALS AND EXPERI ENCE AND ALL OF THAT OTHER?

THAT'S CORRECT.

AND WAS DEFENSE COUNSEL ABLE TO CHALLENGE THAT TENDER?

WELL , DEFENSE COUNSELDIDN'T DE NY I THAT HE HAD EXPERIENCE. DEFENSE DIDN'T DENY THAT HE HAD EXPERIENCE. DEFENSE COUNSEL WOULD SAY THAT THIS WOULD MAKE THIS PERSON A SUPER JURO R, TO DO WHAT THE JURY CAN DO FORTHEMSELVES.

HIS BEING AN EXPERT WAS NOT IN QUESTION. THE QUESTION WAS WHETHER ORNOT HIS EXPERTISE WAS NE EDED.

WELL, IT IS NOT A RECOGNIZED FIELD OF EXPERTISE, FOR ONE.

WAS THAT OBJECTED TO?

YE S. YES, IT WAS.

THE FBI APPARENTLY RECOGNIZED IT AS A FIE LD OF EXPERTISE, RIGH T?

WELL , CERTAINLY FOR DOINGTHEIR PARTICULAR , THEY GIVE TRAINING, CERTAINLY, TO

SO APPARENTLY OFFICIALSIN THE FBI THAT WERE SPECIALIZED INSIDE B Y SIDE COMPARISON .

YES. AS PART OF AN FBI EXA MINER 'SJOB TO BE AB LE TO PE RFORM THIS. WE ARE SAYING IT HAD , WHAT AMOUNTED TO WAS TAKING THECASE AWAY FROM THE JURY AND S AYING THEY SHOULD ACCEPT THIS PERSON AS AN AUTHORITYAND NOT QUESTION THEEVIDENCE FOR THEMSELVES. THANK YOU. I WILL RES ERVE .

GOOD MOR NING , YOUR HONORS. MAY IT PLEASE THE COURT. I AM CA ROL DITTMAR FROM THE ATTORNEY GENRAMS OFFICE , REPRESENTING THE AND GENERALS OFFICE , REPRESENTING THE APPELLEE IN THIS CASE, THE STATE OF FLORIDA. ON THE WILLIAMS RULE EVIDENCE, THE JU DGE MENTIONED AN ORDER AND DID MENTION HER STATE OF MIN D IN THE CONCLUSION OF THAT ORDER. FIRST SHE DET AILS THE F ACTS AND THE EV IDENCE WHICH SHE INSISTS NEED S TO BE EXCLUDED, THE R E FERENCE TO THE GUN , THE D UCT TA PE ON THE MOUTH, THE THRE ATS , AND REFERENCETO WHAT SHE FELT COULD BE INCLUDED. ANOTHER RE ASON OF THESE CRIMES AND MENTIONED , WERE BECAUSE OF THE PHOTOGRAPHS F OUND IN THE TRUCK. AND THE PHOTOGRAPHS WERE NOT FOUND SLAPPED IN THE TRU CK BUT HIDDEN.

HIDDEN UP UNDER THE TRUCKBED.

TH ERE IS NO QUESTION WHETHER THE PHOTOGRAPHS GOTIN THE TRUCK AT THE TIME OF THE KIDNAPING IS PR ETTY SPECULATIVE, RI GHT? I MEAN , HE HAD THAT TRUCK FOR A PERIOD OF TIME , B E FORE IT WAS

HE HAD THE TRUCK FOR A PER IOD OF TIME , AND THAT - -

WE DON'T KNOW , REALLY,WHEN THE PHOTOGRAPHS WERE PLACED IN THE TRUCK.

I THIN K THE REASONABLE INFERENCE IS THAT , WHEN HE TAKES THE PRINCIPAL AND THE LITTLE BO Y TO THE WOODS , THE PRINCIPAL S E ES HIS PERS ONAL BELONG INGS, SEES HISSLEEPING BAG, CAN TELL THAT THERE IS A OB UNDER THE S LEEPING BAG, AND THEN WHEN THE PRINCIPAL IS TIED TO A TREE AND MR . FLOYD COMESBACK AND SAYS HO W DO YOU OPEN THE BACK OF YOUR TRUCKAND THE PRINCIPAL TELL S HIM THAT, HE THEN HEARS THINGS BEING THROWN IN TO THE TRUCK.

THROWN INTO IT.

HE DID NOT

SO FR OM A REAS ONABLE POINT OF VI EW , THEY COULD HAVE BEEN PL ACED THERE FROM THE TIME THAT HE GOT THE TRUCK UNTIL THE TIME THAT THE TRUCK WAS ABANDONED.

YES.

SO WHAT I HAVE TR OUBLE UNDERSTANDING IS, WHAT IS THE RELEVANCE OF THE FACT THAT HE TIES HI M TO THE TR EE , THAT HE KIDNAPS THE BOY , THAT ALL OF THE CIRCUMSTANCES , HOW DOES THAT HELP PROVE THAT PHOTOGRAPHS WERE PUT IN THE TRUCK, BECAUSE THAT IS THE ONLY REASON YOU WA NT

YOU ST ILL HAVE TO SHOW THE CIRCUMSTANCES OF THEFACT THAT HE IS ON THE RUNHERE. HE IS COMMITTING CRIMINAL A CTS, AND HE IS T AKING THESE THINGS WITH HIM. HE IS MAINTAINING POSSESSION OF THEM , AND IT APPE ARS TO BE ALL HIS WORLDLY BELONGINGS, AT THIS LI TTLE PLACE IN THE WOODS.

SO IT IS NOT , REALLY, PUT IN TO PUT SHOE THE CHAIN OF THE TRUCK BUT TO SHOW THAT , THIS IS S E VERAL YEARS LATER , SO ANY CRIMINAL ACT THAT HE W OULD HAVE COMM ITTED , BETWEEN THE TIME THAT HE ALLEGEDLY COMMITTED THIS MURDER, WHEN HE IS CAUGHT , COMES INTO EV IDENCE?

I AS SURE YOU THERE ARE MANY CRIMINAL ACTS HE ANYTIME COMMITTED THAT DID NOT COME INTO THAT HE COMMITTED THAT DID NOT COME INTO EVIDENCE .

SO IT WASN'T PUT IN TO SHOW HE IS ON THE RUN . BECAUSE YOU SAID THAT.

THAT IS ONE OF OF THE FACTORS.THE JURY IS ENTITLED TO AN INTELLIGENT ACCOUNTING OFTHE CRIME.

WHY ? WHAT DOES IT MA TTER? IF THE TRUCK WAS BORROWED FROM A NEIGHBOR , THE IS SUE WAS THAT AT SOME POINT , HE TAKES POSSESSION OF THIS TRUCK , THAT, THEN , ENDS UP HAVING PHOTOGRAPHS THAT ARE HIS THAT CONNECTS THE PHOTOGRAPHS , THE PHOTOGRAPHSCONNECT HIM WITH THE CRIME NOT THE TR UCK.

BUT YOU STILL HAVEN'T SHOWN WHY HE WOULD , IN THE COURSE OF JUST HAVING ACC ESS TO THIS TRUCK , WHY HE WOULD PUT THINGS , EVERYTHING THAT HE OWNED IN HIS LIFE , INTO THE TRUCK , AND KEPT ON.

WERE THERE THING INS THE TRUCK AT THE TIME THAT WERE CONNECTED THINGS IN THE TRUCK AT THE TIME THAT WERE CONNECTED UP TO THE CRIME?

NO , TO MY KNOWLEDGE, NOTHING ELSE WAS IN THE TRUCK.

WHAT IF THEY F O UND HIM TWO YEARS A FTER AND HE WAS LIVING IN A MO TEL AND HE HAD HIS EARTHLY BELONGINGS THERE.WHAT IS THE DIFFERENT BETWEEN WHAT I S THE DIFFERENCE BETWEEN THAT AND THE ELEMEN TS OF THE CRIME?

IF HE WAS LI VING IN A HOTEL ROOM

A GAIN , THE CRIME OCCURS , WHAT YEAR?

1989.

THE KID NAPING .

19 94 WAS THE K IDNAPING .

WHEN WAS HE AR RESTED .

HE IS ACTU ALLY ARR ESTED IN 1990 FOR SOME PERI OD OF T IME BY THE FE DERAL AUTHORITIES.B ASED ON AN OUTSTANDING WARRANT, AND THAT IS NOT ANYTHING THAT IS IN THETRIAL. IT IS IN PRE TRIAL THAT , HE IS ACTUALLY IN CUSTODY. HE IS INDICTED IN THIS CASE IN 1999.

S O HOW MANY

I BELIEVE IT MA YBE 1997 AND THEN THE INDICTMENT APPEALED .

HOW LONG WAS THE TIME BETWEEN WHEN HE WAS ARRE STED FOR THIS AND THE TRUCK WASTAKEN?

THE TRUCK WAS AND NAEN 1994 AND THE INDI CTMENT WAS TAKEN IN 1994 AND THE INDICTMENT, I BELI EVE WAS IN 1997.

BUT YOU ARE SAYING HE WAS INCARCERATED FOR SOME THING ELSE.

YES. A T THAT POINT. I THINK THE TR IAL JU DGE HAD THE SAME PROBLEM THAT YOU DID , AND I N FACT HER IN ITIAL R ULING WAS THAT THE JURY WOULDN'T HEAR ANY OF THAT , AND THEN AS SH E CAME TOUNDZ THE STATE'S CASE, SHE APPRECIATED THE FACT THAT THE STATE REALLY COULDN'T PRESENT THE CASE INTELLIGENTLY , WITHOUT HAVING THE JURY HEAR

THAT IS WHAT I AM ASKING

IN FACT HER ORDER , SHE OSTENSIBLY RELATES THE FACTS AND COND UCTS A LEGAL ANALYSIS IN HER ORDER. SHE CONCLUDES THE KIDNAPING OF MR . DAVIS AND MICHAEL HUGHES, AND I AM READING FROM THE RECO RD, THE PAGE NUMBER 1276 6 IN THE ORDE R ON THE WILLIAMS RULE N UMBER 2766 IN THE ORDER ON THE WILLIAMS RULE , STATED THAT THE CARJAC KING LINKED FRANKLIN FLOYD TO THE PICKUP TRUCK , AND TO PLACE AM IN THE SOLE AND EXCLUSIVE POSSESSION OF THE TRUCKWHERE THE PHOTOGRAPHS WERE EVENTUALLY FOU ND . SECOND, THE KIDNAPING AND CARJACKING

LET ME ASK YOU A QUESTION BEFORE YOU GO ON.

OKAY.

SE COND, THERE IS A ABSENCE OF EVIDENCE CONNECTED HIM TO THE TRUCK AND THE SCENE.

NOTHING ELSE CONNECTS HIMTO THE TRUCK.

NOTH ING IN THE WORLD .

NOTHING CONNECTS HIM TO THE TRUCK , OTHER THAN THE EVIDENCE, THE PRINCIPAL AS A WITNESS.

HE IS WILLING TO STIPULATE.

HE IS WILL ING TO STIPULATE THAT HE STOLE THE TRUCK AND HAD ACCE SS TO THE TRUCK FOR A PERIOD OF T IME.

LE T'S STOP AT NUMBER ONE , ALL RIGHT , WHY IS IT ABSOLUTELY ESSENTIAL , AS YOU ARE READ ING THE TRIAL JUDGE'S ORDER, IF HE IS WILLING TO STI PULATE THAT HE HAD POSSESSION OF THE TRUCK , IN OTHER WORDS, IN SORT OF AN OVER SIMPLISTIC VIEW, IT APPEARS , OBVIOUSLY , IMPORTANT FOR THE STATE, TO SHOW HE HAD POSSESSION OF THE TRUCK, S O THAT HE HAD THE OPPORTUNITY TO PUT THE PHOTOGRAPHS , YOU KNOW, UNDERNEATH THERE. OKAY. BUT BEYOND THAT , WHY , INOTHER WORDS, WHAT IS THE RELEVANCY OF HOW HE OBTAINED POSSESSION OF THE TRUCK , ESPECIALLY WHEN HOW HE OBTAINED POSSESSION OF THE TRUCK INVOLVES THIS COLLATERAL CRIME?

THAT IS WHY THE JUDGE GOES ON BEYOND NUMBER ONE , AND SHE SAYS , NUMBER TW O, SECONDLY , THE KIDNAPING AND CARJACKING HAS ITS O WN UNIQUE AND SIGNIFICANT RELEVANCE, IN THAT FLOYD COMMITTED THES E ACTS WHILEIN THE POSSESSION OF THE PHOTOGRAPHS. THE PHOTOGRAPHS WHICH MEMORIALIZED THE LOCATION AND APPE ARANCE OF OUR VICT IMIN THIS ALL EGED HOMICIDE.

I AM MI SSING THAT. WHAT , I DON'T

YOU DON'T SEE THE U NIQUE AND SIGNIF ICANCE YOUDON'T SEE THE JURY HEARING TWO DIFFERENT STO RIES

T R YING TO CON VICT THIS DEFENDANT, I CAN SEE THAT THE STATE WOULD WANT T O SHOW THAT THIS IS THE M OST HORRIBLE PERSON IN THE WORLD! AND , OF COURSE , THE FA CTS OF THE CRIME ARE OBVIOUSLY, WE ALL AG REE THAT , YOU KNOW,ABOUT THAT TO BE GIN WITH , BUT IF WE ARE FOLLOWING THE RULE ALONG, THAT, NO , YOU DON'T ALLOW EVIDENCE AF TER COLLATERAL CRIME , TO PROVE HIS EVIDEN CE OF A COLLATERAL CRIME TO PROVE HIS COMMISSION OF THIS CRIME , AND JUDGE, WHAT WE DO WANT TO DO, TH OUGH , I S THAT THE PHOTOGRAPHS ARE A LIN CHPIN HERE. THEY ARE ABSOLUTELY CRITICAL TO OUR CASE , AND YOU KNOW, WE WANT TO ADMIT THEM , AND O NE OF THE LINKS IN THE CHAIN OF GETTING THOSE INTO EVI DENCE , IS THAT WE HAVE TO DEMONSTRATE THAT HE WAS IN POSSESSION OF THAT TRUCK , AND THEREFORE WHILE HE WAS IN POSSESSION OF THE TRUCK , HE COULD HAVE PUT AND DIDPUT THE PHOTOGRAPHS UNDER THERE . NOW , THAT , I AM WITH YOU ALL THE WAY THERE. BUT I AM HAVING TR OUBLE BEYOND THAT , AND I DON'T , I AM , QU ITE CANDIDLY I DON'TGET WHAT THE TRIAL JUDGE I S SAYING. THE FIRST REASON SHE GIVESIS TAKEN CARE OF BY THE FACT THAT THE DEFE NSE IS W ILLING TO STIPULATE THAT HE HAD POSSESSION OF THE TRUCK. NOW , I DON'T KNOW AB OUT THE EXTENT OF THE STIPULATION , WHE THER IT IS ADEQUATE, BUT ASSUMING IT WAS ADEQUATE T O GET POSSESSION, SO THAT THE STATE HAS THAT LINK IN THE CHAIN , IN ORDER TO HAVE HIM IN POSSESSION OF THE TRUCK, SO HE HAD THE OPPORTUNITY TO PUT THE PHOTOGRAPHS UNDERNEATH THERE, BUT TELL ME, A GAIN , WHAT IS THE RELEVANCE I OF THESE OTHER THE RELEVANCY OF THESE OTHER EV ENTS , IN OTHER WORDS THE KIDNAPING AND THE CARJACKING AND EVER YTHING, WHAT IS THE RELEVANCY OF THAT TO THIS CRIME?

TO SHOW THAT THIS COLLECTION WAS SIGNIFICANTTO HIM PERSONALLY .

HOW DOE S IT SHOW THAT?

THAT HE IS KEEPING UP WITH IT AND POSSESSING IT AND MAINTAINING IT , WHILEALL OF THESE OTHER THINGS ARE GOING ON.

WHERE IS THERE ANYTHING IN THIS EVIDENCE ABOUT THE KIDNAPING AND EVERYTHING , A BOUT THE PACKAGE OF PHOTOGRAPHS?IS THERE ANYTHING ? THERE IS NOTHING THERE ABOUT THAT, IS THERE?

NO, BUT YOU HAVE TO M A KETHAT CONNECTION THAT THIS IS SOMETHING THAT HE IS KE EPING WITH HIM THROUGHOUT THECOURSE OF HIS LIFE , TAKING , G OING THRO UGH THESE EVE NTS THAT YOU OR I PROBABLY CAN'TRELATE TO BUT THAT IN HISSITUATION , THE SIGNIFI CANCE

THE PACKAGE OF PHOTOGRAPHS DOES THAT, DOES IT NOT?

I AM SORRY , SI R.

PROVING THAT HE WAS IN POSSESSION OF THE ENVELOPE WITH THE PACK AGE OF PHOTOGRAPHS, PROVES THAT.

ABSOLUTE LY. WE HAD TO PROVE HE WAS IN POSSESSION OF THE PHOTOGRAPHS.

HOW DOES THE KIDNAPINGAND THE CARJACKING PROVE THAT ?

WELL , YOU HAVE TO SHOW , I DON'T KNOW HOW YOU COULD HAVE TOLD THE JURY H E HAD ALL HIS WORL DLY POSSESSI ONS, AND HE PL ACED THEM IN THIS SITUATION WHERE HE IS TRYING TO GET AWAY AND ESCAPE, ANDHE IS TAKING THEM WITH HIM , JUST BECAUSE HE HAS ACCESS TO THE TRUCK. YOU ARE LEAVING A BIG GAP FOR WHAT THE JURY

WHAT DO HIS WORLDLY POSSESSIONS HAVE TO DO WITH GETTING THE PHOTOGRAPHS INTOEVIDENCE, BECAUSE HE HAD POSSESSION OF THE TRUCK AND , OBVIOUSLY , THROUGH THE OTHER CIRCUMSTANCES OF CONNECTING THE PHOTOGRAPHS TO HIM WHEN YOU LO OK AT THEM.

THEY SHOW THE SIGNIFICANCE OF THE PHOTOGRAPHS TO HIM PERSONALLY . THERE IS ISN'T IT BECAUSEOF THE WE IRD PLACE WHERE THEPHOTOGRAPHS WERE LOCATED , AND, AG AIN, MA YBE I WASN'T S URE , HOW LONG UNTIL HE SOLD OR THE TRUCK WAS ABANDONED OR WHATEVER , HOW LONG BETWEEN THE KIDNAPING AND WHE N THE TRUCK WAS NO LON GER IN HIS POSSESSION?

WE DON'T KNOW EX ACTLY WHEN THE TRUCK WAS ABANDONED.WE KNOW THAT IT WAS TAKEN ON SEPTEMBER 12 , 199 4, FR OM OKLAHOMA. IT WAS FOUND ABANDONED IN TEXAS , ON OCTOBER 22 , 1994 , BUT APPARE NTLY IT HAD BEEN PARKED IN THIS PA RKING LOT AND ABAN DONED FOR SE VERAL WEEKS. SO WE DON'T KNOW EXACTLY WHEN HE ABANDONED IT.

WE DON'T KNOW WHEN THE PHOTOGRAPHS M UC H STUCK INTO THIS

NO , WE DON'T.

ALL RIGHT. SO THAT IS W HERE THE SIGNIFICANCE TO ME, WOULD BE TO SAY HOW DID , WHAT IS SO SIGNIFICANT IS THAT HE TOOK THESE PHOTOGRAPHS AND HE HI D THEM, AND THAT HAS NOTHING TO DO WITH THE CIRCUMSTANCE OF THIS KIDNAPING. THAT IS WHERE , AGAIN, I CAN SEE IT, IF WHAT THE G UY OBSERVED WAS THAT HE STARTEDDOING ALL THESE WEIRD THINGS W ITH HIS POSSESSIONS. HE STARTED STUFFING THEM IN DIFFERENT PLACES , BUT SI MPLY THROWING STUF F IN THE TRUCK, WHICH HE DIDN'T ACTUALLY SEE, HE HEARD, HE OBSERVED SOME THINGS AND SEE ING BU DGES , DOES NOT H E BULGES , DOES NOT EQUATE TO ANYTHING ABOUT THE PHOTOGRAPHS.

BUT THE PHOTOGRAPHS ARE STILL WITHIN WHAT HE HAS AT THE TIME, AND HE HAS TO BE ABLE TO SHOW

WE DON'T KNOW. THAT.

THAT IS TRUE.THAT IS AN IN FERENCE WE ARE ASKING THE JURY TO MAKE, ANDTHE OTHER PROBLEM HERE IS THE STATE HAS TO RE BUT THEIR PRIMARY DEFE NSE OF TAMPERING, AND EVEN THOUGH HE IS STIPULATING HE HAD ACCESS TO THE TRUCK , HE IS NOT STIPULATING HE HAD ANYTHING TO DO WITH ANY OF THESEPHOTOGRAPHS.HE IS NOT STIPUL ATING THAT THE PHOTOGRAPHS WERE EVER EVEN IN THE TRUCK , SO WE HAVE TO SHOW THE WH OLE SERIES, FOR THE JURY TO HAVE A FULL UNDERSTANDING OF WHY HE WOULD HAVE THESE PHOTOGRAPHS, WHY THEY WOULD EVEN BE THERE , WHY THEY WOULD BE INVOLVED , IF IT WAS JUST SOMETHING THAT HE HAD ACCESS TO THE TRUCK FOR A WEEK WHEN IT WAS STOLEN, IF I WERE ON A JURY , I AM GOINGTO B E P R ETTY SKEPTICAL ABOUT , JUST BECAUSE SOMEBODY STOL E A TRUCK FOR A WE EK THAT THEY HID SOME THING IN THERE, ANDI THINK THAT WAS SO CRITICAL AS THE JUDGE CA ME TO UNDERSTAND THE CASE, SHE APPRECIATED THAT. THE THIRD THING THAT SHE NOT ICED WAS THAT FLOYD HAD DRIVEN OFF WITH H UGHES , WITH MICHAEL HUGHES AND THECOLLECTION OF PHOTOGRAPHS , AND THAT THAT HAS ITS O WN UNIQUE AND SIGNIFICANT RELEVANCE , I N SHOWING THAT THESE ARE TWO THING THAT IS FLOYD , ACCORDING TO THE STATE , CARED ABOUT THE MOST.

HOW DOES SHE KNOW THAT H E DROVE OFF WITH THECOLLECTION OF PHOTOGRAPHS?

BECAUSE THEY WERE NOT LEFT IN THE WOODS WITH THE PRINCIPAL.THAT IS AN INF ERENCE .

HOW DO WE KNOW THE PHOTOGRAPHS WERE THERE ATTHE TIME?HOW DO WE KNOW HE DIDN'T HAVE THE PHOTOGRAPHS SOMEPLACE EL SE AND HE WENT AND GOT THEM OR WHATEVER?

WE DON'T KNOW THAT. THE ONLY INFERENCE IS THAT HE CERTAINLY , WHEN HE WENT F ROM OKLAHOMA TO PRESUMABLY TEXAS , IN THIS TRUCK, W E DON'T EVEN KNOW THAT HE I S THE ONE THAT LEFT IT IN TEXAS , BUT WE KNOW THAT ATSOME POINT , THESEPHOTOGRAPHS WERE THERE ANDTHAT WE HAVE TO BE ABLE TO CONNECT HIM TO THESEPHOTOGRAPHS , IN ORDE R TO MAKE THE STATE'S CASE HAVE ANY INTELLIGENCE AT ALL.

WHAT HAPPENED TO THE SON?

THE SO N IS APPARENTLY PRESUMED DE AD, STILL MISSING.

S O FROM THE TIME HE HAS BEEN SEEN

AT THIS POINT , I DON'T BELIEVE THE SON IS EVER SEEN AGAIN BY ANYBODY.

THAT IS

THAT IS NOT DEVELOPED IN THE RECO RD.

WHAT IS THE EVIDENCE THAT WAS PRESENTED, CONCERNING THE KIDNAPING ITSELF?

THE EVIDENCE ALL CAN CAME FROM THE TESTIMONY OF J AMES DAVIS ALL CAME FROM THE TESTIMONY OF JA MES DAVIS, WHO WAS THE PRINCIPAL. ACCORDING TO HIS TESTIMONY, HE WAS AT SCHOOLWORKING WHEN MR . FLOYD CAME INTO THE SCHOOL, AS KED TO SEE HIM , ASKED TO, T OLD , APPARENTLY , NOW , DIDN'T COME I N BUT HADA GUN AND TOLD HIM WE NEED TO GO GET MICHAEL HU GHES OUT OF ONE OF YOUR F IRST GRADECLASSES , AND THE PRINCIPAL ACQUIESCED TO THAT. THEY WALKED TO THE C LASS WHERE THE PRINCIPAL CA LLED THE B OY OUT. FLOYD INST RUCTED THE PRINCIPAL TO TELL HISSECRETARY YOU ARE GOING TO BE GOING ON AN ERRAND AND YOU WILL BE BACK SOON. THEY DID THAT. THEY LEFT THE SCHOOL GROUND , GOT INTO THE PRINCIPAL 'S TRUCK , DROVE A SHORT WA Y TO THE WOODS. THE PRINCIPAL OBSERVED HIS , SOME PERSONAL PROPE RTY , SLEEPING BA G IN THE W O ODS . MR . FLOYD TELLS MICHAEL , WE ARE GOING TO G O LO OK FOR ADOG. THERE IS A DOG AND WE AREGOING TO GO OFF AND FIND HIM, SO MICHAEL DOESN'T KNOW WHAT HE IS DOING WHEN HE TAKES THE PRINCIPAL BACK AND TIES TOM THE TREE. TIES HIM TO THE TREE. THE , AS I RELATED EARLIER ABOUT DA VIS SAYING HE WOULD COME BACK AND ASK ED HOW TO OPEN THE CAMPER AND ALSO ASKED HOW TO P U T THE TRUCK INTO RE VERSE , CAME BACK A COUPLE OF TIMES, SO HE IS RELATING THOSE INCIDENTS. HE BELIEVES HE HEARS THE TRUCK LEAVE OR HE HEARS THE TRUCK LEAVING THE AREA , AND THAT FOR SEVERAL HOURS HE WAS TR YING TO CRY OUT , U N TIL SOMEONE HEARD HIM.

SO WAS IT ALSO THE STA TE'S POSITION THAT ANYERROR IN ADMITTING THIS WAS HARMLESS UNDER THE CIRCUMSTANCES?

YES , Y OUR HO NOR. AND I THINK WHAT I S CRITICAL

HOW ABOUT HI TTING THAT A LICK.

WELL , BECAUS E OF THE - -

IN OTHER WORDS, ARE YOU SAYING IT WAS PRE TTY INNOCUOUS TESTIMONY?

IN ADDITION , THEY, IN THE WAY THAT THE JUDGE SANITIZE ED IT, IN KE EPING OUT THE DEATHTHREATS AND THE DUCT TAPE AND THE GUN , I KNOW THAT THEY MINIMI ZED THAT NOW. THEY DIDN'T , A T THE TIME OF TRIAL THEY DIDN'T SAY, WELL , JUDGE , YOU ARE NOT DOINGANYTHING AND WE DON'T WANT YOU TO EXCLUDE THESE, BUT NOW THEY COMPL AIN THAT THAT D IDN'T REALLY MINIMIZE ANYTHING, AND I THINK THAT IN FACT THAT I S VERY SIGNIFICANT, PARTICULARLY WHEN OUR VICTIM WAS SHOT , AND YOU KNOW , THE JUDGE I SN'T LE TTING THEM HEAR THAT THIS MAN HAD A FIREARM AND HAD ACCESS TO A FIR EARM . THAT IS STILL BEING EXCLUDED. THAT WAS A SIGNIFICANT THINGTO EXCLUDE WHEN YOU HAVE A VICTIM THAT HAS BEEN SHOT. IN ADDITION

DOES THE TESTIMONY SHOW , SAY THAT HE LEFT WITH M ICHAEL HUGHES?

YES , YOUR HONOR .

AND WAS MICHAEL HUGHES IN SOME OF THESE PHOTOGRAPHS?

NO.

OK AY. SO THE , I S THAT THE S UM OF THE TESTIMONY CONCERNING MICHAEL HUGHES THAT WAS BEFORE THE GU ILT PH ASE JURY?

ACTUALLY AS FAR AS MICHAEL HUGHES , YES , ALTHOUGH THE CO URT READ A STIPULATION WHICH BENEFITED THE DEFEND ANT , TO A JURY , THAT SA ID THAT HE HAD DEVELOPED A RELATIONSHIP WITH MICHAEL HUGHES , WHERE HE F ELT LIKE MICHAEL HUGHES WAS HIS STEPSON, THAT THE OKLAHOMA HE EM AUTHORITIES HAD TERM INATED HIS - - OKLAHOMA AUTHORITIES HAD TERMINATED HIS PARENTAL RIGHT S.

THAT WAS IN THE GUILTPHASE.

THAT WAS WHEN THEEVIDENCE WAS FIRST PRESENTED. SHE WANTED TO LAY THE BACKGROUND SO THAT IT IS SETTING UP THAT IT IS MITIGATING THAT HIS PARE NTAL RIGHTS TO MICHAEL HAD BEEN SEVERED , AND I T T URNS IT INTO MORE A FTER EMOTIONAL UNDERSTANDING CRIM E FOR THEJURY TO SEE , AND , I THINK, LESS INFLAMMATORY AND LE SS

THE THING ABOUT THE C HILD DISAPPEARING.

NO, SIR. THE JURY DID NOT HEAR ANYTHING ABOUT THAT.

HOW ABOUT MO VING ON TO THE PHOTOGRAPHS.

BEFORE YOU MOVE ON , DID THE JUDGE GIVE A LI MITING INSTRUCTION, BOTH BEF ORE AND AFTER THE TESTIMONY?

THIS JUDGE THAT , LIMITING INSTRUCTION WAS GIVEN TO THE JURY OVER AND OVER AGAIN , BOTH BEFORE , D URING , AND AFTER THE DAVIS TESTIMONY , AND ADDI TIONALLY WITH SOME OF THE OTHER ACTS THAT WERE DESCRIBED IN THE EVIDENCE , WHEN THEY TALKED ABOUT THE PICTURES THEY RECEIVED LIMITING INSTRUCTIONS ON THAT, AND , OF COURSE , IN HERFINAL INST RUCTIONS TO THEJURY, SHE GAVE , SHE ADDRESSED THE FACT THAT THEY HAD HEARD EVIDENCE ABOUTOTHER CRIMES , AND , A GAIN , REMINDED THEM OF HOW LIMI TED THEY COULD USE THAT TESTIMONY . SO THEY WERE EXTENSIVELY, AND SHE , SHE FREQUENTLY SOUGHT IN PUT FROM THE PARTIES ON GIVING THE INSTRUCTIONS, ON CRAFTING HER INSTRUCTIONS . THERE WERE A NUMBER OF THING HAS THAT SHE FELT LIKE THEY HAD TO BE ABLE TO LET THE JURY KNOW ABOUT , AND PART OF IT WAS EXPLAINING THE PICTURES AND THE FACT THAT THEY WEREN'T SE AVING THE RECEIVING THE '97 PICTURES THAT THEY HAD HEARD B THEY HAD TO CRAF T AN INSTRU CTION, SHE DIDN'T WANT TO T ELL THE JURY THAT YOU CAN'T SEE THEONES THAT ARE TOO BAD , SOTHERE WAS A LO T OF WORK AND EFFORT THAT WENT INTO THAT AND A LOT OF WORK AND EFFORT THAT WENT INTO CRAFTING THIS EVIDENCE, TO TRY AND KEEP O UT THE MOST PREJUDICIAL AND STILL LET THE STATE HAVE THE PROBATIVE FORCE OF THE EVI DENCE AVAILABLE .

REGARDING THE PHOTOGRAPHS , SO THAT YOU CAN ARGUE THAT , WHAT IS THE , WH AT WAS THE PURPOSE OF ALLOWING IN ALL O F THE PHOTOGRAPHS OF THE FEMALE GENITALIA THAT ARE LITERALLY UNATTACHED TO ANY BODIES OR FA CES OR ANYTHING LIKE THAT , THEY WERE ALL CROPPED?

THE PURPOSE OF LETTING IT IN IS THAT IT WAS , IN DEED, ACOLLECTION OF PHOTOGRAPHS , AND AS A COLLECTION, THE JUDGE DETERMINED THAT COLLECTION WAS RELEVANT , AND IT , EVERYTHING IN THECOLLECTION IS RELE VANT . AT THAT POINT , AND SHE REALIZED THAT SHE HAD TO REM OVE THE MOST PREJUDICIAL , BUT THE COLLECTION THAT IS RELEVANT TO EVERY PI CTURE THAT HAS RELEVANCY , BECAUSE THEY TAKE WHAT ARE OTHERWISE COMPLETELY RAND OM , UNRELATED PIC TURES AND THEY TURNED THEM INTO A COLLECTION.

WHY IS THE PART OF THE COLLECTION, ASSUMING THAT THE TH REE CATEGORIES THAT WE HAVE TALKED ABOUT BEFORE , THAT IS THE PHOTOGRAPHS OF THE VICTIM , THE PHOTOGRAPHS OF THE OTHER , OF HISDAUGHTER, AND THE PHOTOGRAPHS OF THE OTHER , THE FRIEND'S DA UGHTER , IF IUNDERSTAND IT , AND FROM COUNSEL'S ANSWER, SOUN DED LIKE T H OSE CONSTITUTED 80 O F THE 90 PHOTOGRAPHS THAT WERE ADMITTED. WHY , WHAT IS THE RELEVANCE , ASSUMING THOSE NUMBERS ARE RIGHT , OF THE OTHER TEN PHOTOGRAPHS THAT WERE APPARENTLY O F NOBODY IDENTIFIED AS BEING CONNECTED TO THE DEFENDANTAND THAT WOULD BE DIRECTLY RELEVANT TO HIS CONNEC TIONTO THE COLL ECTION AND THEN TO THE VICTIM, YOU KNOW , IN THIS CASE , WHICH THOSE THREE CATEGORIES SEEM TO ESTABLISHTHAT. WHY THE OTHER TENPHOTOGRAPHS OF UNKNOWN PEOPLE?

WELL , THERE WERE NOT TEN PHOTOGRAPHS THAT WERE IDENT IFIED BE LOW AS, JUDGE, THESE ARE THE TEN PHOTOGRAPHS THAT PU SH US O VER THE LI NE. THESE ARE THE ONES THAT SHOULD NOT COME IN. WHAT WAS OBJECTED

IT WAS N'T IN THE OBJECTION, THEN, THAT JUDGE, THE PHOTOGRAPHS O F THEPEOPLE THAT AREN'T IDENTIFIED AND AREN 'T IN THE THREE CATE GORIES I MENTIONED, SHOULD NOT COME IN .

THE OB JECTION BELOW WAS THAT THER E IS ONE PICTURE OF THE BOAT, THE ONE PICTURE OF THE BOAT AND THE 16 PICTURES OF CHER YL SHOULD COME IN AND NOTHING ELSE. THAT WAS THE OBJECTION BELOW FOR APP ELLATE PURPOSES.

THERE WAS NO ARG UMENT M ADE BELOW THAT , EVEN IN THE W ORST CASE SCENARIO , JUDGE , THAT AT LEAST YOU SHOU LDN'T A LLOW THESE PHOTOGRAPHS OF THE UNIDEN TIFIED PERSONSTHAT ARE IN THEM.

THERE WAS AN ACKNOWLEDGMENT BY THE DEFENSE BELOW THAT THEY COULD SEE THE RELEVANCY OF ONE PICTURE OF SH ARON, ALSO , BE INCL UDED. SHARON MARSHALL ALSO BE INCLUDED WITH THE BOAT ANDWITH THE 16 PICTURE OF THE VICTIM. THEY SAID YOU PUT IN ONEPICTURE OF SHA RON MARSHALL AND WE ACKNOWLEDGE THAT THOSE PICTURES ARE NUDE OR IN SOME STAGE OF DRESS , AND THAT CAN COME IN AND THE BOAT CAN COME IN AND THE 16 PICTURES CAN COME IN AND NOTHING ELSE SHOULD COME IN , AND THAT WAS THE POSITION OF THE DEFENSE AT TR IAL.

LET'S GO AHEAD AND UNDERSTAND, WHY IS IT , SINCE , WHY IS IT SIGNIFICANT THAT THEY WERE A COLLECTION ?

IT IS SIGNIF ICANT THAT THEY ARE A COLLECTION , BECAUSE YOU N EED TO TIE HIM TO THESE SIXTEEN PICTURES OF THE VICTIM IN THIS CASE . PARTICULARLY WHEN HIS ARGUMENT IS THAT SOME OR ALL OF THESE PICTURES HAVE BEEN PLANTED, A AND THAT IS HIS DEFENSE, THAT THESE THINGS HAVE BEEN TAMPERED WITH.

OK AY. SO WE HAVE, IT IS HIS BOAT.

YES.

ALL RIGHT. SO SOME BODY WOULD HAVE , AND IT IS HIS DAUGHTER/WIFE.

RIGHT .

IT IS HIS , SOMEBODY'S FRIEND .

HE LEN KELLER'S CHILDREN , AND THOSE ARE UNIQUE , BECAUSE SHE HAD PICTURES WHICH FLOYD HAD GIVEN HER , WHICH APPE AR TO HAVE BEEN TAKEN AT THE SAME TIME , AS THE PICTURES I N HIS COLLECTION, INNOCENT PICTURES. NOW, HE , ALSO, HAD IN HIS COLLECTION, MANY THAT ARE INNOCENT PICTURES. AND I KNOW YOU TALKED ABOUT THE TEN , JU STICE ANST EAD,AND I WENT THROUGH AND TRIED TO DIVIDE THEM U P, AND IT IS VERY SUBJECTIVE. SO IT IS HARD TO GIVE A N UMBER . BUT WHEN I WENT THROUGH AND JUST TRIED TO DI VIDE THEM UP INTO CATE GORIES , I ENDED UP WITH MOST OF THEM BEING IN THAT CATEGORY OF THE SUGGESTIVE CLOTHED SUGGESTIVE -TYPE POSING OF THE PICTURES THAT WERE ADM ITTED. THE RELEVANCE FOR THOSE IS IT SHOWS THAT HE TO OK THE PICTURES. HE WAS AWARE OF THE PICTURES. AND HE IS T I ED TO THE PICTURES THROUGH THE TESTIMONY OF HELEN KELLE R , BECAUSE SHE HAD THE SAME PICTURES THAT HE HAD TAKENAT THE SAME TIME, AND YOU LOOK AT THE KIDS AND THEY ARE WEARING THE SAME CLOTHES, AND IT IS APPARENTLY IT IS APPA RENT THEY WERE TAKENAT THE SAME TIME AND AT THE SAME PLACE, IN HIS APARTMENT IN OK LAHOMA , S O THAT IS A VERY CL EAR THING , THAT HE HAD TAKEN THE PICTURES OF THE CHILDREN.

THOSE PICTURES WERE THE SIMILAR POSES AND CLO THES WHEN HE DID TAKE THE PICTURES?

THE JUDGE SAID I T APPEARED TO BE POSED THESAME WAY OF THE VICTIM , AND ANYTHING THAT SHE SAW WAS SIMIL ARITY LIKE THAT, SHE KEPT IN , AND DID NOT KEEP OUT FROM THE JURY. AND THAT WAS HER EXPLANATION , WHEN SHE SAID I AM LET TINGIN SOME THAT , ACCORDING TO WHAT THE JUDGE SAID, SHE SAYS I WOULD CONS IDER THIS PORNOGRAPHIC, B UT I THINK IT IS RELEVANT , B ECAUSE OF THE WAY THEY ARE POSED THE SAME WAY THAT T HESE OTHER PICTURES ARE POSED .

I GUESS THAT IS WHERE THE PROBLEM STARTS TO HAPPEN. THEY ARE SIMILAR TO NOT THE V ICTIM , NOT TO THE VICTIM

SOME OF THEM ARE , AND SOME .

IT IS CONF USING. ANOTHER PICTURES OF THE VICTIM ARE SEXUAL IN N ATURE , ALSO, SO IT IS HARD TO EXCLUDE THOSE OUT AND S A Y THEY ARE SIMILAR TO THIS BUT NOT SIMILAR TO T HAT.

HOW OLD WAS THE VICTIM? ANOTHER VICTIM WAS 19 , ANDTHERE IS DISAGREEMENT IN THE RECORD ABOUT HOW OLD, THIS ACHILD OR IS THIS AN ADULT? I THINK AT ONE POINT THE JUDGE AND THE DEFENSEATTORNEY SAY, WE JUST A GREE TO DISAGREE ON THAT POINT. THAT IS VERY SU BJECTIVE , ANDTHREE , I KNOW THAT THREE OF THE PICTURES THAT WERE EXCLUDED, DEMONSTRATE THE COMMISSION OF A CAPITAL SEXUAL BATTERY IN PROGRESS . AND THE JUDGE CLEARLY WASNOT GOING TO LET THOSE G O BACK TO THE JURY , AND SHE IN ADDITION TO THOSE THREE, SHE WANTED TO TAKE OUT THE ONES AND SHE WAS FOCUSING ON THE O NES THAT INVOLVED CHILDREN THAT YOU COULD CLEARLY IDENTIFY THAT THEY WERE CHILDREN, AND SO THAT WAS HER CONCERN, TO KE EP THE WORST PICTURES OUT , AND THIS IS A CASE , ALL ABOUT DRAWINGTHE LINE, AND WE ARE NOT UP HERE TO DAY FOR ME TO SAY WHERE THE LINE SHOULD BE DRAWN OR FOR YOU T O SAY WHERE THE LINE SHOULD BE D RAWN. WE ARE HERE TO SAY DID THE JUDGE DRAW THE LINE OWN ROENBLY, BECAUSE THAT I S HERJOB. THAT IS REASONABLY , LAWBECAUSE THAT IS HER J OB, THAT IS - - REASONABLY, BECAUSE THAT IS HER JOB , THAT IS HER DISCRETION ANDTHERE WERE TWO OR THREE-DAY HEARINGS BA SED PARTICULARLY ON THE EVIDENCE OF TAMPERING , AND IT WAS STILL MAINTAINED AT TRIAL, AND IT WAS AL WAYS OUT THERE, BUT THE PREJUDICIAL BALANCING TEST WAS SOMETHING THAT THEY KNEW FROM THE BEGINNING WHEN THEYWERE HAVING THE PRETRIAL HEARINGS THAT THEY WERE GOING TO GET IN THE TRIAL. THE JUDGE SAID ALL AL ONG , THERE ARE SOME OF THESEPICTURES THAT THE JURY IS NOT GOING TO SEE , THAN IS C LEAR, THAT THAT WASACCEPTED BY EVERYBODY FROM THE BEGINNING.WE ARE GOIN G TO HAVE TO G O THROUGH AND PULL OUT THEWORST OF THE WORST AND SHE EXERCISED HER DISC RETION VERY REAS ONABLY IN TR YING IT TO DETERMINE WHICH PICTURES WERE REALLY GOING OVER THE LINE, AND SHE KEPT THOSE OUT AND EXCHROOED CL UED ED AND EXCLUDED THOSE, AND THAT IS EXACTLY WHAT THIS COURT HASSAID YOU NEED TO DO IN THIS SITUATION, AND I DON'T SEE ANY ABUSE OF DISCRETION INTHE WAY THAT SHE DID THAT, AND THERE IS NOT AN ABUSE OF DISCRETION PRESERVED, SO THAT, WELL , THESE FIVE PICTURES ARE THE ONES THAT WE DON'T THINK SHOULD HAVE GONE TO THE JURY. THE WH OLE , THE ARGUMENT HEREHAS BEEN , WELL , OKAY , WE SEE THE RELEVANCE OF THE BOAT, AND WE SEE THE RELEVANCE OF THE VICTIM AND MAYBE ONEPICTURE OF SHARO N MARSHALL BUT EVERYTHING ELSE SHOULD COME OUT. THAT WOULD NOT LEAVE THEJURY WITH ANY SENSE OF WHAT THIS COLLECTION WAS. THESE PICTURES WOULD L OOK VERY OUT OF PLACE, IF IT IS JUST 16 PICTURES A FTER VICTIM AND A PICT URE OF ABOAT, AND A JURY IS GOING TO BE VERY , I WOULD THINK , WOULD BE VERY CONCERNED A BOUT MA KING A LOT OF INFERENCES, W HEN THEY ARE NOT GIVEN THAT WHO LE PICTURE , AND JUST ICE ANST EAD, I KNOWIN THE JIMMY R YCE CASE EARLIER THIS MORNING , YOU SAID, WELL, THE STATE IS GOING SAY IN A CRI MINAL CASE WE JUST WA NT THE TRUTH. WE JUST WANT THE TRUTH OUTTHERE, AND CERTAINLY THE TRUTH CAN BE VERY PREJUDICIAL, AND THIS JUDGE , I THINK DID A FABULOUS JOB WITH THIS TRIA L. SHE TRIE D TO KEEP EVERYBODYON A VERY SHORT LE ASH , BECAUSE THERE WERE ALL KINDS OF PRE JUDICIAL AC TS THAT THE DEFENDANT HAD BEEN INVOLVEDIN, AND WHEN YOU HAVE A CASE THAT

LET ME ASK YOU ABOUT PREJUDICIAL ACTS.

YES.

IF WE CONCLUDE THAT THE ADMISSION OF THE TESTIMONY CONCERN ING THE KIDNAPING , THE TYING UP OF MR . HUGHES , OR WHOEVER THE PRINCIPAL IS , MR . DA VIS , IF WE CONCLUDE THAT THOSE THINGS WERE, I N FACT, ERROR , IN ANSWER TO ONE OF JUSTICE ANSTEAD'S QUESTIONS, YOU SAID THAT THIS , I T WOULD BE HARMLESS , BUT WHY IN THIS CIRCUMSTANCE , WHEN PRACTICALLY EVERYTHING THAT WE HAVE THAT CONN ECTS THIS DEFENDAN T TO THE MURDER IS, REALLY , CIRCUMSTANTIAL , WHY WOULD NOT THIS EVIDENCE THAT HE HAS BEEN INVOLVED IN OTHER CRIMES , HOW CAN W E REALLY SAY THAT THAT WOULD BE HARMLESS?

WELL , FIRST , I DISAGREE THAT THIS IS A CIRCUMSTANTIAL EVIDENCE CASE. I THINK THAT THERE IS AGREAT DEAL OF DIRECT EVIDENCE, IN CLUDING HIS PRIOR THRE ATS , HIS THREATENING LETTERS TO THE WITNESSES.I THINK THE PICTURES THEMSELVES, ARE NOT CIRCUMSTANTIAL. THEY ARE DIRECT EVIDENCE.WHEN YOU LO OK AT THE PICTURES OF CH ERYL COMMESSO , YOU ARE WITNESSING A KIDNAPING IN PROGRESS. YOU HAVE BEC OME AN EYEWITNESS . I UNDERSTAND IT WAS A CIRCUMSTANTIAL THING.

WE DON'T HAVE FINGERPRINTS. WE DON'T HAVE GUNS. WE DON'T HAVE A LOT OF OTHERTHING THAT IS WE NORMALLY SEE IN A MURDER CASE , SO I JUST WANT YOU TO EXPLAIN TO ME WHY THIS I S NOT HARM FUL E RROR, IF IT IS ERROR.

BECAUSE I THINK THER E IS NO REASONABLE POSSIBILITY THAT THE JURY VER DICT IS BASED ON ANY O F THIS IMPROPER EVIDENCE AND NOT ON THE EVIDENCE THAT ACT UALLY WENT TO THE CRIME AGAINST CHERYL. THE , AND THE JUDGE MAKES THECOMMENT , HERSELF , SHE SAID NO JURY IS GOING TO CONVICT HIM OF MURDER BASED ON THESE PICTURES.

WE HAVE A PRIOR THREAT , AND WE HAVE PHOTOGRAPHS .

WE HAVE THE PRIOR THREATS, WHERE HE , VERY SHORTLY , WE HAVE A VERY NARROW TIME FRAME. WE KNOW THAT VERY SHORTLYBEFORE THE VICTIM DISAPPEARED, THAT MR . FLOYD HAD BEEN CALL AGO FR IEND OF HERS, SAYING WHERE DOES THIS PERSON LI VE, WHAT IS HER L AST NAME , I AM GOING TO MAKE HER PAY. SHE IS GOING TO BE SORRY FOR WHAT SHE HAS DONE. SO WE HAVE THOSE THREATS. THE SAME WITN ESS THAT H E ARD THOSE THREATS , L ATER SEES MR . F LOYD ARGUING WITH THE VICTIM IN THIS CASE , OUTSIDETHE BAR, AND SHE KNOWS THAT THEY ARE HAVING A HEA TED ARGUMENT, SO WE HAVE THOSE. THEN WE HAVE THE PICTURES , AND , AGAIN , THE EXPERT TESTIMONY WITH THE PICTURES, WE KNOW THAT CHE RYL IS IDENTIFIED, THE VICTIM , THR OUGH DIRECT TESTIMONY BY F OUR DIF FERENT WITNESSES. WE KNOW THAT THE CLOTHESTHAT SHE IS WEARING IN THE PICTURES ARE CONSISTENT, ARETHE SAME CLOT HES THAT AREFOUND IN THE FI ELD WHERE HER SKELETON IS FO UND. THE FINGERNAILS ARE THE SAME. THE INJURIE S T O HER FACE HAVE NOT EVEN GUN THE HEALING PROCESS , SO WE KNOW THAT HER DE ATH OCCURS WITHIN THIS SAME PROXIMITY OF T IME , BASED ON , AND THAT IS ALL DIRECT EVIDENCE. THAT IS ALL WITNES SES THAT ARE LOOKING AT THE PICTURES AND CAN TE LL YOU THAT.

I JUST W ANT TO , YOU HAVE CERTAINLY FINISHED RESPONDING TO THE QUESTION BUT YOUR TIME EXPIRED ABOUTA MINUTE AGO.

THERE IS A GREAT DEAL OF EVIDENCE WHICH TIES HIM TO THIS AND TO THESE PICTURES, AND THE JURY WAS ALWAYS GOING TO HEAR THAT HE WAS HOLDING SHA RON OUT AS HIS DAUGHTER AND HE LATER MARRIED HER. THEY ARE GOING TO SEE THEPICTURES OF CHERYL , AND ON TOP OF THAT , I DON'T SEE HOW ANYTHING COULD BE TOO PREJUDICIAL THAT THE JURY IS NOT GOING TO BE SWAYED BY THE EVIDENCE THAT ACTUALLY WAS PRESENTED ON THE CRIME. WE ASK YOU TO AFFIRM THE JUDGMENT AND SE NTENCE IMPOSED. THANK YOU.

CHIEF JUSTIC E: REBUTTAL . YOU HAVE GOT A HALF MINUTE.

I JUST WA NTED TO ADDRESS , THE STATE HAS BEEN CONTINUALLY ARGUING THAT THECOLLECTION OF PHOTOGRAPHS WAS IMPORTANT, THAT IT HAD TO COME IN AS A COLLEC TION. NOW , THE FACT IS , MOST PEOPLE HAVE PHOTO ALBUMS, AND THE STATE NEVER TRIES TO B RING IN THEIR WHOLE PHOTO A LBUM AS SOME SORT O F EVIDENCE, UNLESS IT IS RELATED TO THE CRIME FORWHICH THE PERSON IS BEING TRIED. AND IN THIS CASE THE ONLY REASON THEY WANTED THECOLLECTION IS BECAUSE OF THE NATURE OF IT , BECAUSE OF WHAT WAS CONTAINED IN THE CHILD PORNOGRAPHY ASPECTS OF IT AND THEY JUST WANTED TO PORTRAY HIM AS A PERSON WITH A SI CK MIND.

WERE ANY OF THESE PICTURES , WAS THE SE TTING THE SAME? CAN WE G ATHER THAT FROM THIS COLLECTION OF PICTURES , WHERE THE SETTING IS THESAME, WHERE THE VICTIM AND THE DAUGHTER WERE FOUND , I MEAN, OR POSED , AND THE OTHER PEOPLE THAT WE KNOW NOTHING ABOUT?

NO. NO. THE ONES, THE PHOTOGRAPHS OF THE VICTIM WERE THE ONLY ONES THAT WERE TAKEN , SUPPOSEDLY INSIDE HIS TRAILER AND WERE IDENTIFIED AS BEING IN SIDE HIS TRAILER. THESE PHOTOGRAPHS WERE TAKEN O VER A PE RIOD OF YEARS , ANDMANY IN UN KNOWN PLACES. THE ONLY ONES THEY KNOW WHERE IT WAS IS WHERE THE PEOPLE ARE IDENTI FIED AND COULD TESTIFY AS TO WHEN THOSE WERE TAKEN.

GOING BACK TO THE COLLATERAL CRIME AND THE ADMISSION OF THE EVIDENCE OF THAT, WHY ISN'T THAT JUST A SITUATION, THAT IS TO UGH THAT IT TURNS OUT THAT HE GOT THE TRUCK BY A CARJACKING OR WHATEVER , IF , FOR INST ANCE , HIS TRUCK , A FTER THIS EVENT IN THIS EVENT INCURRED , THEY FOUNDTHE TRUCK WITHIN A F EW DAYS AND IT HAD HIS IDENTIFICATION AND IT HADTHE GUN IN IT, AND THE GUN WAS IDE NTIFIED AS THE GUN THAT KILLED THE VICTIM HERE. ARE YOU SAYING THAT THE FACT THAT HE DI D A CARJACKING TO GET THE TRUCK , WOULD NOT, THEN, BE ADMISSIBLE IN EVIDENCE, TO SHOW HIS CONNECTION TO THE GUN THAT WAS FOUND IN THE TRUCK A WEEK LAT ER?

WELL , THAT, I N THAT CASE , YOU WOULD HAVE , IF , THAT WOULD BE SAYING THAT THE GUN THAT WAS USED FIVE Y EARS PREVIOUSLY WAS THE SAME GUN , AND IN THAT CASE IT WOULD BE. IT WOULD BE APPLICABLE.

WHY, THE PHOTOGRAPHS ARE THE SAME SITUATION, ARE THEY NOT?

THEY WEREN'T FOUND IN CONNECTION WITH THE INCIDENT. THEY WERE FOUND , DISCOVERED YOU KNOW , SOMETIME LATER , AND , AGAIN , YOU KNOW, THEEVIDENCE OF HOW THE , O F , THAT HE DID HAVE THE TRUCK IS VERY IMPORTANT , BUT THEFACT THAT , HOW HE GOT THE TRUCK WHEN HE WAS WILLING TO STIPULATE TO HOW HE , THAT HE DID HAVE THIS TRUCK AND IT WAS NOT BY THE PRINCI PAL AGREE ING

DOES T HIS INCLUDE THAT THERE WAS A ABANDONMENT OF IT, TO O? BECAUSE TO ME I T SEEMSIMPORTANT IN THE CONTEXT OF THINGS THAT SOMEBODY WOULD POTENTIALLY LE AVE , WHY WOULD SOMEBODY LEAVE THESE PHOTOGRAPHS IN THERE , THE CIRCUMSTANCES SURROUNDING THE TAKING AND ABANDONMENTOF THE TRUCK, ARE IMP ORTANT , BECAUSE , OBVIOUSLY, WHY WOULD SOMEBODY POTENTIALLY L EAVE THESE PICTURES BE HIND, UNLESS THERE WAS SOME EXIGENCY, SO WAS THE STIPULATION WAS I ADMIT ISTOLE IT OR I ADMIT I STOLE IT AND ABANDONED IT IN TEXAS?

HE WAS NEVER AS KED TO STIPULATE TO. THAT I THINK HE CERTAINLY WOULD HAVE, HAD HE THE QUESTION IS NOT WAS HE ASKED , BECAUSE WASN'T THAT AN OF FER BY THE DEFENDANT TO WHAT HE WOULD STIP ULATE TO?

HE NEVER CONTESTED THAT THE TRUCK WAS FOUND. IT WAS FOUND ABANDONED. HE NEVER OBJECTED , HE NEVER EVEN CROSS-EXAMINED THE WITNESS WHO TESTIFIED TO WHERE IT WAS FOUND.

I THOUGHT THAT THE DEFENDANT HAD VOLUNTEERED TO STIPULATE TO SOMETHING.

HE VOLUNTEERED TO STIPULATE THAT H E STO LE THE PRINCIPAL 'S TRUCK. THAT IS WHAT H E VOLUNTEERED TO S T IPULATE TO , WAS THAT HE HAD POSSESSION OF IT, AND THAT, IT WASN'T BECAUSE THE PERSON HAD GI VEN PERMISSION .

CHIEF JUSTICE: WITH OUR HELP, YOU HAVE USED UP THE REST OF YOUR TIME , AND W E WILL TAKE THE CASE UNDER ADVISEMENT AND, A LSO , CONSIDER ALL THE OTHER POINTS R AISED IN YOUR BRIEF. THANK YOU VERY MU CH. THE COURT WILL BE IN RE CESS UNTIL NINE O'CLOCK TOMORROW MORNING .

MARSHA L: PLEASE RISE. ,, ,,