THE LAST C AS E O N T HE D OCKE T THIS MORNING IS S MITH VER SU S STA TE OF F LORI DA . JUSTICE QUINCE IS R ECUSED O N ppTHIS C AS E , G IV IN G U S S OM E IDEA OF THE A GE O F THE C AS E . NOT THE AGE O F J USTICE QUINCE .

WE ARE A BL E TO B E BROADCAST?

YES.

AND R EC ORDE D?

YES. pp

COUNSEL R EADY? MR. McLAIN? > > MAY IT PLEASE THE C OU RT . MY NAME IS M AR TI N M cL AIN. I'M HERE TODAY O N B EH ALF O F MR. D ERRICK SMITH O N H IS APPEAL FROM THE DENIAL OF R ULE 3 8 FOR THE REL IE F . Y OU'VE MAD E M AN Y C LA IM S O N YOUR APPEAL , A ND YOU R PETITION. ARE YOU GOING TO F OCUS O N ANY PARTICULAR ONES T ODAY?

I INT END T O F OC US O N THE ppBRADY/GIGLIO. IF THERE ARE A NY Q UE STIONS ABOUT ANY OTHER MATTERS I WILL BE HAPPY T O ADDRESS THEM. IN REFERENCE T O THE ppBRA DY/GIGLIO, T HERE WAS A NUMBER OF EXH IBIT S , A L OT O F DOCUM ENTS THAT WERE INTRODUCED AT T HE TRI AL COURT L EV EL O F M AT ER IA L T HA T WAS IN THE STATE 'S FIL E B UT NOT WAS DIS CL OSED T O THE DEFENSE. AS TO T HOSE D OCUM EN TS , T HE ppCIRCUIT COURT R ULED T HAT SOME OF THE M UND ER M ILLE R V S TATE WERE NOT R EQUIRED TO BE D IS CLOSED, A ND T HE CIRCUIT COURT SAID I HAVE OR MR. SMITH HAD NOT S HO WN THA T RELYING ON MIL LE R W AS W RONG OR THAT THERE WAS A NY DISCOVERY OBLIGATION OVER AND BEYOND MILLER V STA TE . THIS COURT REJECTED THA T P OSITION I N F LO YD T HA T MILLER DOES NOT E STAB LISH THE PARAMETER S O F DIS CO VE RY OR DIDN'T AT T HE TIM E. AND MOR EO VE R A S T HE T RI AL PRO SECUTOR AT THE SECOND TRIAL. FIRST MR. SMITH WAS TRIED I N 1983. THIS COURT ORDERED A R ETIL E. R ET RI AL . AT THE TIME OF THE SECOND TRIAL, THE T RIAL P ROSE CU TOR IN TESTIFYING BEL OW , ACKNOWLEDGED THAT THE RULES OF CRIMINAL PROCEDURE HAD CHANGED JULY 1, 1 989 , A ND MILLER WAS GONE W IT H THA T A MENDMENT TO THE RULES O F CRIMINAL PROCEDURE REQUIRING POLICE REPORTS TO BE DISCLOSED.

WHA T SPE CI FI C BRADY/GIGLIO CLAIM ARE YOU GOING TO ADDRESS? BECAUSE THERE ARE SEVERAL OF THOSE.

YES, WELL , F IRST I 'M S OR T OF LAYING T HE G ROUN DWORK. THE C IR CUIT COURT D ID N OT D O A C UM UL ATIV E ANA LY SI S. THEY SAID UNDER MILLE R W E HADN'T SHOWN THAT T HERE WAS AN E NTITLEMENT TO THEM B Y THE DEFENSE. AND THE CIRCUIT C OU RT A LS O ppSAID THOSE THINGS T HAT W ERE CONTAINED IN THE STATE A TTORNEY'S S YN OPSIS , WHI CH IS A SUMMARY OF THE SWO RN STATEMENTS MADE TO THE STATE A TTORNEY ALSO SAID T HAT' S WORK PRODUCT OR P RI VI LEGE AND THAT'S NOT SUBJECT TO BRADY. SO THOSE ITEMS D ID N' T G ET CONSIDERED IN ANY SORT OF C UMULATIVE ANALYSI S, BUT I WILL START WITH

YOU STILL HAVE T O A LLEGE AND PRO VE T HAT T HE Y WER E ppWITHHELD, THA T THEY W ER E EITHER IMPEA CH ING O R FAVORABLE TO T HE D EFEN DANT AND THAT THEY S UFFERE D PREJUDICE.

CORRECT, YOUR HONOR. SO WITH SORT O F FIR ST , I T WASN'T DISCLOS ED. THE JUDGE BELOW SAID SOM E O F THE STUFF HE W ASN' T CONSIDERING IN ANY SORT OF CUMULATIVE ANALY SI S. FIRST THE ONE THING HE D ID SPECIFI CALLY CONSIDER WITH D EFENDANT'S EXHIBIT NUMBER 8 , WHICH CONCERNED THE CON TACT BETWEEN M EL VI N JON ES AND -- ppDERRICK JOHNSON WHI LE THEY WERE INC ARCE RATE D T OG ETHER.

THERE WAS NO TES TIMONY AT THE R ET RI AL , T HE RE W AS N O QUESTION ASKED ABOUT WHE TH ER THEY HAD E VE R M ET , WAS T R ? pp THERE?

WELL , THE PARAM ET ER S O F WHAT HAPPENED AT THE PRETRIAL, LET ME FIRST T ALK ABOUT WHAT HAPPENED AT THE F IRST TRIAL. THE FIRST T RIAL BOTH MR. JONES AND MR. JOHNSON HAD BEEN DEPOS ED , A ND TESTIFIED AND I N THE F AC E O F QUESTIONS BY THE DEFENSE ATTORNEY FOR M R. S MITH , A S TO THEIR CONTACT, THEY ppDENIED C ON VE RSIN G A BOUT T HE CASE, KNOWING E AC H OTH ER , AND SO T HE Y BAS ICALLY S AI D N OT TRUE.

BUT NOW THAT WAS APPEA LE D , ppTHE CONVICTION IS REVERSE D. IT COMES BAC K F OR A NEW TRIAL AND W E D ON'T HAVE THE SAME TESTIMONY ON RETRIAL. THAT WAS NEV ER ASKED , RIGHT?

THOSE QUESTIONS WERE NOT ASKED A ND DEFEN SE A TTOR NEY BASICALLY THE POSITION IS W E KNOW WHAT THE ANSWER IS. THEY ARE SAYING THAT THERE IS NOTHING THERE. THERE IS NO EVIDENCE A ND NO ONE TOLD THE DEF ENSE ATTORNEY THAT, IN FACT , THE STATE KNEW THAT T HEY HAD BEEN IN A J AI L C EL L TOG ETHE R AND THAT M R. J ON ES H AD APPROACHED MR. JOHNSON WITH A MAP OF THE CRI ME S CE NE , AND SAID T HA T H E W OULD HELP HIM AT TRIAL . T HIS INFORMATION, THE DEFENSE ATTORNEY AT T HE RETRIAL DID NOT KNOW. AND, IN FACT , T HE F IRST TRIAL WHEN IN C LO SING ARGUMENT THE DEFENSE ATTORNEY WAS TRYING TO SUGGEST AND SAY THAT D ES PI TE THEIR DEN IALS, THERE H AD BEEN SOMETHING GOING O N BETWEEN JONES AND JOHNSON , THE PROSE CUTOR A RG UE D T HAT' S L UDICROUS . THERE IS NO EVI DENCE OF THAT. WELL, BUT OF C OU RSE T HE STATE HAD E VIDENCE OF THAT. THE STATE KNEW T HAT THERE HAD BEEN THE C ON TACT. IN FACT, WHEN Y OU D O S OR T O F A TIMELIN E YOU CAN F IND O UT THAT JOHNSON H AD B EE N INTERVIEWED BY A STATE ATTORNEY I NV ESTIGATOR O N ppJULY 5TH. JULY 11TH I S W HEN H E I S I N A ppJAIL CELL WITH M ELVI N J ONES ppAND M EL VIN H AS T HIS M AP AND SAYS THAT HE WILL HELP H IM.

AND THEN JOHNS ON ASK ED TO BE MOVED FROM THE C ELL AND DIDN'T WANT TO HAVE ANY CONTACT.

ACT UA LLY THERE I S NO EVIDENCE OF THAT. THE EVIDENCE OF THAT IS

DIDN'T JOHNSON T ESTI FY TO THAT EFFECT ? > > YOU A RE C ORRE CT, YO UR HONOR. BUT M R. H OG AN , THE PROSECUTORS , S AI D J OHNS ON N EVER TOLD HIM THAT. HE JUST H EARD IT FROM O THER PEOPLE SO IT WAS SORT O F THIS HEARSAY KIND O F THI NG . SECOND, IN T ER MS O F A T T HI S POINT IN TIME IN EVALUATING THE PREJUDICE , THE U.S . SUPREME COURT I N C HI LD S MAD E IT CLEAR IT DOESN 'T M AT TE R WHAT JOHNSON SAYS. NOW THE Q UE STION IS W HA T COULD HAVE BEEN P RE SENT ED T O THE JURY AT THE TIME OF T HE TRIAL. IN JOHNSON N OW , T RYIN G T O SAY , W EL L , I D ID N' T SAY ppANYTHING TO HIM. HE WAS JUST T AL KING TO ME. I WAS K IND OF S CARED AND I ASKED TO BE MOVED.

BUT THE P RE JU DI CE STANDARD THEN IS WHETHER IT PRESENTS THE WHOLE TRIAL IN A COM PLETELY D IFFERENT LIGHT.IS THAT

YES.

SO HOW DOES T HE FACT T HA T YOU CAN NOW , B EC AU SE IT WOULD REALLY BE I TC H P EACHMENT MATERIAL, RIGHT ? IT WOULD BE I MPEA CH MENT MATERIAL?

IT IS MORE T HA N I MP EACH ME NT IN THAT THE TESTI MONY A T T HE FIRST TRIAL AND IN THE DEPOSITIONS WAS FALSE .

THAT'S IMP EA CHME NT .

WELL , B UT I MP EA CH MENT - -

FIRST OF ALL THE QUESTION WAS NEVER ASK ED ON RET RIAL SO YOU DON'T KNOW WHAT THE ANSWER WOULD HAVE BEEN TO SAY THAT HE WOULD HAV E L IED ON THE RETRI AL?

BUT T HE D ISTI NC TION BETWEEN BRADY/GIGLIO I S THAT IN G IG LI O W HERE THE STA TE FAILS TO CORRECT A F ALSE STATEMENT O R M IS LE AD IN G STATEMENT, THERE IS A DIFFERENT BURDEN OF PREJUDICE.

BUT THERE I S N O - - S IN CE THEY NEVER T ESTI FI ED W HE THEROR NOT T HE Y M ET , THERE W AS ppNO FALSE T ESTIMONY IN THE SECOND TRIAL? > > THERE WAS IN THE DEPOSITION. AND THE U.S. S UPREME C OU RT HAS SAID IT DOE SN'T HAVE TO BE FALSE TESTIMONY IN FRONT OF THE JURY. IF THIS P RO SE CU TION M ISLE AD S ppTHE DEFENSE THAT'S A G IG LI O ppVIOLATION.

THE DEFENSE KNEW WHAT THE TESTIMONY IN THE FIRST TRIAL WAS, SO THEY W ER EN 'T MISLEADING. THEY KNEW THAT TESTIMONY ALREADY.

THEY DIDN'T KNOW IT WAS FALSE. THEY KNEW WHAT THE TESTIMONY WAS.THE P ROSE CUTOR K NE W THE TESTIMONY WAS F ALSE BUT H E DIDN'T TELL THE DEFENSE.

SO HOW W OULD I T H AVE PRESENTED THE WHOLE C ASE IN A COM PLETELY D IFFE RENT L IGHT NOW WHEN YOU HAVE T HI S I GUESS THIS DOCUMENT T HAT SAYS THEY MET IN A C EL L W HE N T HEY DIDN' T T ES TI FY A T RETRIAL ABOUT IT, BUT IN T HE FIRST TRIAL THEY TESTIFIED THAT THEY HAD MET . H OW WOULD I T PRE SENT THE ENTIRE CASE I N A COM PL ET ELY DIFFERENT LIGHT NOW?

MY POINT IS T HAT'S NOT THE CORRECT S TA ND AR D F OR THAT. WHEN IT COMES T O A G IG LI O V IOLATION.

I GUESS I WAS TALKINGABOUT THE BRA DY PART F IRST.

THE FIR ST P OINT IS I N TERMS OF THE FAILURE T O CORRECT THE FALSE T ESTIMONY AND TELL THE D EFENSE T HA T , IN FACT , THEY WERE TOG ETHE R , CONTRARY TO THEIR TESTIMONY.

THE PROBLEM I HAV E WIT H THE GIGLI O I SS UE I S T HA T THIS TESTIMONY WAS NEVER PRESENTED IN THE SEC ON D TRIAL. SO H OW CAN YOU SAY THE Y TES TIFIED F ALSELY IN T HE SECOND TRIAL?

THE U .S. SU PR EME COU RT -- ppSPECIFI CALLY SAYS IT DOESN'T HAVE TO BE IN FRONT OF THE JURY. IF THE PRO SECU TION INTENTIONALLY MISLEADS THE DEFENSE SO THEY DON'T KNOW ABOUT SOM ETHI NG , BEC AU SE THEY ARE I NT ENTI ON AL LY MISLED. ppDELIBERATELY LIED T O. IT IS STILL A G IGLI O VIOLATION AND IT IS STILL UNDER THAT STANDARD T HAT Y OU LOOKED AT T O DETER MI NE WHETHER OR NOT A N EW ppPROCEEDING IS REQUIRED. SO IN T HIS I NS TA NC E , W E H AV E BOTH BRADY AND WE H AV E GIGLIO STUFF G OI NG O N AT T HE SAME TIME. IN TERMS O F THI S , T HI S I S I NFORMATION THAT THE PROSECUTION M IS LE D T HE DEF ENSE ABOUT. IT SHOULD BE E VA LU ATED UND ER ppGIGLIO, B UT E VE N UNDER B RADY , IN THIS INSTANCE , I T C AN'T BE E VALUAT ED I N A V ACUU M , EITHER. WE ALSO NOW K NOW B EC AUSE T HE P OLICE REPORTS THAT MR. JONES WAS THE ORIGINAL SUSPECT OR ONE OF THE ORIGINAL SUSPECTS LISTED ON THE POLICE REPORT.

THE ONL Y R EASON HE WAS A S USPECT WAS BECAUSE HE HAD A RECORD AND HE LIVED IN THE VICINITY, NOT BECAUSE THE RE WAS A NY E VEN CIRC UM STAN TIAL EVIDENCE THAT PLACED HIM A T THE SCENE EXC EPT FOR THE FACT THAT HE L IVED A RO UND THE AREA.

CORRECT. THE POLICE LIST H IM I N A POLICE REPORT AS A S USPE CT , A ND THEN NEVER GO T AL K T O HIM . BECAUSE THAT WOULD CONSTITUTE IMPEACH ME NT U ND ER CHI LDS OF T HE ADE QU AC Y O F THEIR INVESTIGATION. TO GO TO HIS HOU SE T WI CE , THIS IS ALSO U NDIS CL OS ED , T O DO A N EIGH BO RH OO D CAN VAS. ppIN FACT, THERE IS A S ECOND TIME AND BOTH JONES AND H IS WIFE TESTIFY AS T O THE F IRST ONE.

AND WAS THERE T ESTIMONY OR ANY EVIDENCE THAT THE POLICE ONLY WEN T T O O TH ER HOUSES ONCE B UT WENT T O T HAT HOUSE TWICE OR THE ONLY EVIDENCE IS T HEY WENT TO THAT HOUSE TWICE? WE DON'T KNOW IN R ELATIONSHIP TO THE OTHER HOUSES.

THE S IG NI FI CA NC E TO T HE FACT THEY WENT THERE T WI CE WAS M ELVIN JONES AND H IS WIFE TESTIFIED THAT SHE ANSWERS T HE DOOR FOR THE FIRST NEI GHBORHOOD C ANVA S. SHE DOES NOT TELL THEM WHAT MELVIN JONES HAS SEEN BECAUSE AT THAT MOMENT I N TIME MELVIN JONES HAD NOT T OLD HER. AS SOON AS THA T E NCOU NTER I S OVER, MEL VI N J ONES TEL LS MEL LOW JONES W HAT H E HAS SEEN SO WHEN THE N EX T POL IC E OFFICER COMES EIGHT HOURS LATER SHE KNOWS THAT , AND BECAUSE THE DEFENSE D IDN' T KNOW THAT THERE HAD BEEN A SECOND POLICE O FFICER KNOCKING ON THE DOOR ASKING HER IF SHE K NE W ANY TH ING , ppTHERE WAS NO QUE ST IONS A BOUT , WELL, WHY DIDN' T Y OU T EL L THE S ECOND POLICE O FF ICER? ISN'T THE REASON YOU D ID N'T TELL THE S EC ON D P OLIC E OFFICER BECAUSE YOU A RE LYING? THIS IS NOT WHAT HAPPENE D ? T HAT I MP EACHME NT COULD N' T BE PRESENTED BECAUSE THE STATE WITHHELD THE I NFORMATION REGARDING T HE SEC OND NEIGHBORHOOD CANVAS. IN ADDITION TO T HA T , M EL VI N J ONES FIRST GOES T O THE POLICE JUNE 17TH. T HIS MUCH IS KNOWN . AND TRIES TO WOR K O UT A ppDEAL. HE SAYS H E GIV ES THE POL IC E AN A LTERED VER SI ON O F T HE FACTS BECAUSE HE IS NOT HAPPY WITH THE CONSIDERATION HE IS GETTI NG . THAT ALSO NEEDS TO B E CONSIDERED IN EVALUATING THE SIGNIFICANCE OF THE JULY 11TH CON TACT W IT H MR. JOHNSON. HE HAS ALREADY GONE TO T HE POLICE. HE HAS TOLD THEM THE VERSION OF T HE E VENT S IS N OT MATCHING WITH WHAT THE Y KNOW. SO THEN H E I S W IT H D ERRI CK J OHNSON ON J UL Y 1 1T H GOI NG OVER A M AP . T HEN ACCORDING T O WHAT W E CAN FIGURE OUT B EC AUSE T HERE IS A DEPOSITION THAT HAPPENS ON JULY 2 2N D.

WOULD YOU HELP M E UNDERSTAND, GOING OVER T HE MAP , W HE RE I N T HE R EC OR D ARE YOU DEALING WITH THAT? I MEAN, M Y P ER CEPT IO N I S A ppVERY BRIEF E NCOU NT ER IN A HOLDING CELL. I THOUGHT THAT W AS WHA T THE EVIDENCE THAT WE ARE DEALING WITH.

WELL

YOU S AY YOU ARE DESCRIBING THIS AS A P LA N THAT'S ALL OF THE E VI DE NC E IS

WHAT W AS NOT D IS CLOS ED I S A C ID INV ESTI GA TI ON R EP OR T AND ON THE CID I NV ES TI GATI ON REPORT ARE HANDW RITT EN NOTATIONS . TOM HOG AN , THE PRO SECU TO R I N 1 983 TESTIFIED THE HANDWRITTEN NOTATIONS ARE HIS H ANDWRITING AND HERE HE SAYS, D. J. , W HICH I S REFERRING TO DERRICK JOH NSON SAYS THE FIRST TIME HE EVE R SAW MELVIN J ON ES , 7-1 1- 83 I N HOLDING CELL BEFOR E PRE LIM. ppM ELVIN JONES S HOWE D D . J . MAP AND SAID H E W OU LD H EL P D. J. AT T RIAL . > > THERE IS N OT HING I N T HERE THAT SAYS HE IS GOING OVER IT AND THEY ARE D ISCUSSING THE MAP. I AM JUST TRY ING T O UNDERSTAND, Y OU K NO W , W E A RE A WARE OF THIS.

THE M AP I S W HA T I S CONTAINED IN THE LET TE R T HA T MEL VIN JONES W RITE S THE STATE ATTORNEY WHICH THE STATE ATTORNEY, T HE BEST WE CAN FIGUR E O UT , R EC EI VE D O N JULY 2 1S T B ECAU SE A T T HE D EPO O N J UL Y 2 2N D H E S AI D I ppJUST YESTERDAY GOT COMMUNICATION FROM ANOTHERWITNESS. AT THE E VI DENT IARY H EARING HE SAYS THAT'S IN REFERENCE TO MELVIN JONES. SO MELVI N JONES SEN DS T HE MAP, AND A LL W E H AV E I S I N T ERMS O F WHAT HAPPENS IN THE ENCOUNTER BETWEEN D ERRI CK JOHNSON AND MELVIN JONES IS D ERRICK JOHNSON'S WOR D F OR IT, AND I T HI NK W E R EL Y O N OUR T O OUR O WN P ER IL O N HIS WOR D W HE N , IN F ACT , HE HAS AN INTERES T I N ppDOWNPLAYING THE SIGNIFICANC E OF THIS.

W HA T D ID J ONES SAY ABO UT IT?

MELVI N J ON ES D ID NOT TESTIFY ABOUT IT. THEY DID NOT CALL MELVIN JONES AT THE EVIDE NT IARY HEARING.

WHY? YOU COULD H AVE A SKED JON ES AND HAD H IM D IS CUSS I F THERE WAS MORE OF A D IS CUSS IO N.

BECAUSE THE QUESTION I S ppWHETHER OR NOT THE UNDISCLOSED INFORMATION COULD HAVE BEEN USED TO I TC H PEEP IMP EACH H IM . IT MAT TERS L ES S T HA N WHA T HAPPENED WITH MELVIN JONES. MELVIN JONES TESTIFIED THAT HE WAS SENTENCED TO T HREE YEARS. WE ALSO K NOW THAT THAT'S NOT TRUE. HE GOT PROBATION.

YOU BEA R T HE B UR DEN O F PROOF.YOU HAD THE O PPORTUNITY TO PRESENT JONES TO GET T HE FULLER SIDE OF THE STORY AND DID NOT C ALL J ON ES , C ORRE CT ?

UNDER CHI LDS, T HE U .S . SUPREME COURT SAID IT IS N OT A QUESTION OF WHETHER YOU BELIEVE THE WITNESS NOW, I N A PROCEEDING N OW, THE QUESTION IS THE U NDIS CLOS ED INFORMATION, COULD THAT H AV E BEEN USED AND PRESENT ED TO THE J URY SO THAT THE J UR Y WOULD NOT HAV E B ELIEVE D IT. ppSO WHAT I S MOR E I MPOR TANT IS THE DOCUMENTATION PIECE S OF PAPER SHOWING THE INFORMATION THAT WAS NOT ppDISCLOSED T O M R. S MITH .

I GUESS BASICALLY W HA T W E HAVE IS THE ONLY THING THAT WAS REALLY PRESENTED TO THE TRIAL COURT JUDGE WAS THE H EARSAY S TATEMENT ABOUT A PROSECUTOR'S NOTES , AND T HE N J OHNSON'S STA TEME NT , B UT WHAT OCCURRED. WE DON'T HAVE J ON ES ' STATEMENT.HE WAS NEVER D EP OSED T HOUG H THERE IS NO A RG UM EN T H E IS NOT AVAILABLE. O R ANY A RGUMENT OF WHO ELSE MAY HAVE BEEN IN THE P OD A T THE T IM E.

BUT WHAT WE ALS O H AV E I N EXHIBIT A IS WE HAVE ATTACHED TO IT THE LOCAT ION RECORDS SHOWING WHERE EVERYBODY WAS L OCATED. AND, IN F ACT , T HE E XH IBIT 8 H AS C RO SSED OUT P ORTI ON WHICH IND ICATES T HAT W HEN THE CID INVES TI GATION WAS DONE BY T HE INV ES TI GA TOR , H E INITIALLY DETERMINED THAT THEY WERE IN THE S AME LOCATION FOR A PERIOD OF TIME. THIS HAS B EEN G IVEN T O T HE ppPRO SECUTOR WHO W HE N H E TAL KS TO DERRICK J OH NSON T HE N HAND WRITES IN WHAT DERRICK JOHNSON TELLS HIM A BOUT T HAT ENCOUNTER ON JULY 1ST.

JUST SO WE A RE C LE AR , THERE IS A D IS PUTE A ND WHETHER IT IS SIGNI FI CANT O R NOT AS TO WHETHER T HE NOT ES SAID HE GAV E THEM T HE MAP AND SAID IT W OU LD H EL P D . J . ppAT TRIAL VER SU S T HA T H E , JONES, WOULD HELP JOH NS ON A T TRIAL.

I GUESS IT IS A QUE STION OF LOOKING AT THE HANDWRITING AND REACHING A CONCLUSION.

THERE IS A DISPUTE A S T O WHAT THAT SAYS?

IT LOOKS C LE AR THA T I T I S A H WHEN YOU LOOK AT THE WORD HELP AND YOU LOOK AT THE WORD IN QUESTION IT IS THE SAME FORMATION.

WELL , YOU HAVE , I M EA N , ON THIS PIECE O F E VI DE NC E , THERE IS - - S HO UL D H AV E B EEN DISCLOSED , AND IT W OU LD QUALIFY AS BRA DY. SO T HE I SS UE C OM ES D OW N T O W HAT JUS TICE C ANTE RO ASKED YOU EARLIER W HICH I S DOE S IT MEET THE THIRD PRO NG A ND Y OU SAID WE'VE GOT TO LOOK A T I T IN EVERYTHING ELSE THA T WASN'T DISCLOSED, A ND W OU LD REMIND Y OU YOU A SKED FOR , ABOUT 30 MINUTES. 15 MINUTES IS YOUR TIM E . ONE OTHER ISSUE I S ONE O F THE OTHER BRADY V IO LA TIONS.

ONE OTH ER P OINT Q UI CKLY I S I N R EFEREN CE T O M cGRU DE R WHO IS T HE EYE WI TNES S W HO WAS AT THE H OG GLY- WO GG LY BARBECUE WHO SAW T WO B LACK MEN ENTER INTO THE CAB. WHAT WAS N OT DIS CL OSED A S T O HIM WAS THE F AC T T HA T A S TATE ATTORNEY INVESTIGATION OF A S YNOP SI S W HI CH I NCLU DE D HIS S TATEMENT TO T HE S TA TE ATTORNEY ON APRIL 4TH , MR. HOGAN NOTED THAT HE HAD NOT BEEN ABLE TO PIC K OUT ppE ITHER SUSPECT FRO M A P HOTO OP WHICH I S C ON TRARY T O HIS T ESTIMONY. HE T ESTI FIED H E P IC KE D O UT ONE PHOTO, WHICH WAS S MI TH . ACCORDING TO THE STATEA TTORNEY, HE PIC KED O UT NEITHER AND HE IS A LSO OFF ON H IS D ESCRIP TION B Y A S ppMR. HOGAN NOTES , 3 0 P OU ND S AND AS YOU GO T HROUGH T HE POLICE REPORTS YOU SEE VARIOUS NUMBERS, SOM EWHERE BETWEEN 40 AND 70 P OU NDS IN THE WEIGHT THA T SUP PO SE DL Y MR. SMITH WEIGHED. THAT HAS TO B E EVA LUAT ED CUMUL ATIVE LY AND T HE CIR CU IT COURT WHEN ANALYZING THE FAILURE TO D ISCL OS E EXHIB IT 8 AND T HE CONTACT AND T HE HOLDING C EL L R EL IE D O N M cGRUDER 'S T ES TIMO NY F OR ppFINDING THE C OMPE TENC E. AND McG RU DE R 'S T ES TIMONY IS WORTHLESS W HEN YOU ACT UALL Y KNOW WHAT HE TOLD THE S TA TE ATTORNEY.

WHAT WAS H E - - H OW WAS H E ppCROSS-EXAMINED ABOUT T HOSE PHOTO PAC KS AT TRI AL?

AT TRIAL HE WAS N OT ABL E TO IDE NTIFY M R. S MI TH IN T HE COURTROOM.HE SAYS I N HIS TESTIMONY ON ppDIRECT E XA MINA TI ON T HAT H E PICKED OUT A P HO TO O F M R. SMITH , A ND H E A T O NE POINT IN TIM E W HI LE B EI NG EXAMINED BY THE STATE SAY S THAT HE PICKED O UT THAT PHOTO BECAUSE HE BELIEVED THAT W AS T HE P ERSO N. I N CROSS , H E A CK NO WLED GE D THE DEFENSE SAID AT THAT TIME YOU WERE U NS URE , CORRECT AND HE SAID YES S O HE WAFFLES BACK A ND F OR TH AND IT IS PRE TTY C LE AR WHEN YOU LOOK AT THE CLO SI NG ARGUMENT THAT THE PROSECUTION IS SAYING WE WISH HE WERE S MART ER , YOU KNOW, THERE IS A LOT O F THINGS WE WOULD CHANGE A BOUT HIM I F WE C OU LD BUT T HEY A RE STILL RELY ING O N HIM SO I D O ppRECOGNI ZE THAT HE WAS IMPEACHED BUT I N F AC T HE H AD NOT P ICKED M R. S MI TH 'S P HO TO O UT WHICH I S I NF ORMATION THAT THE J URY NEVE R HEARD .

THANK YOU . pp

MAY IT PLEAS E T HI S HONORABLE COURT , MY N AME I S KAT HERINE BLA NC O W ITH T HE ATTORNEY GENERAL'S OFFICE REPRESENTING THE STATE OF FLORIDA.BEFORE I ADDRESS THE BRADYCLAIM THERE IS ONE ISSUE OF CORRECTION TO THE T RIAL COURT'S ORDER THAT I WOULD LIKE TO B RING TO T HIS COURT'S ATTENTION AND IT IS MY FAULT AND I APOLOGIZE. THIS CAS E INVOLVES A 32 VOLUME RECORD WITH O VER 5,000 PAGES O F MATERIA L . IN T HE RECOR D A S IT S TA ND S BEFORE THIS COURT IN V OL UM E 27, PAGE 4 94 4 T HE RE I S A ppSINGULAR LINE THAT SAYS THIS IS RICHA RDSON SAN DERS , T HE TRIAL COUNSEL SPE AK IN G, W E S ENT SOMEBODY UP THERE TO SEE IF WE C OU LD LOC AT E WITNESSES OR ANYTHING LIKE THAT. THAT IS FROM THE EVIDENTIARY HEARING HELD JULY 23 , 2002. THE TRIAL COU RT ENT ERED AN ORDER DENYING R EM AINI NG CLAIMS ON F EBRUARY 11TH OF pp2003 AND THAT'S IN T HE RECORD AT LINE 2 2 , REC OR D pp4089 T O 4 11 4 AND THE T RIAL C OURT INCLUDED T HAT SIN GU LA R LINE ABOUT RICHARD S ANDE RS ALLEGEDLY SAYING WE SEN T SOMEBODY UP THERE TO SEE IF WE COULD LOCATE W ITNE SSES OR ANYTHING LIKE THAT . AFTER THAT ORDER W AS E NT ERED ON F EB RU ARY 2 5TH , THE TRIAL COURT ENTERED T WO S MA LL ORDERS, A TWO -P AG E RIN G ORDER AND A O NE AND A HAL F P AGE ORDER C OR RECTING T HE RECORD. AND I DID NOT CAT CH T HI S ONE AND A HAL F P AG E ORD ER CORRECTING THE RECORD.IT I S S IGNIFI CANT W ITH RESPECT TO THE I NE FF ECTI VE ASSISTANCE OF P EN ALTY P HA SE COUNSEL BECAUSE RICHARD ppSANDERS S UB SE QU ENTLY SUBMITTED AN AFFIDAVIT AFTER THE EVI DE NTIARY H EARING SAYING HE NEVER S EN T A N INVESTIGATOR TO NEW J ERSEY. SO, T HEREFORE, THE T RI AL COURT A ND T HE REC OR DS SIG N ON THAT IS VOL UM E 3 2 , 4 13 ppTHR OUGH 4 12 4 THE RE FORE S AY S THE ORDER OF FEB RU AR Y 10TH , 2 003 IS RAT IFIE D T O D ELET E T HAT S TATEMENT SO T HERE I S A SINGLE LINE IN MY ANSWER BRIEF AT PAGE 8 9 T HA T INCLUDES THIS TRIAL C OU RT 'S REFERENCE T O THE SEN DING -- ppSOMEBODY T O NEW JERSEY. I A POLOGIZE. IT SHOULD NOT H AVE BEEN INCLUDED AND I WOULD ASK THAT IT BE D EL ET ED . WITH RESPECT TO , AND I W ILL C ERTAINLY BE GLAD TO ANS WER ANY QUESTIONS WITH RES PECT TO THE I NEFF ECTI VE A SSISTANCE OF P ENALTY PHASE COUNSEL BUT OPPOSING COU NS EL HAS NOT RELIED ON THA T THI S MORNING AND I DO NOT B EL IE VE I AM E LIGI BL E T O ADD RESS THAT ARGUMENT.

IT WOULD BE HEL PFUL I F YOU FILED A W RITT EN T O T HA T EFFECT.

A WRI TT EN DOC UMENT TO THAT EFFECT.

I APOLOGIZE TO MR. McLAIN. HE WAS AT THE EVI DENTIA RY HEARING AND SOMETIMES WHENYOU ARE R EVIEWING THINGS AND READING I WAS Q UI TE F RA NK LY GOING BY THE TRANSCRIPT AND GOING BY THE FINAL ORDER.

I APPRECIATE YOU R C ANDO R IN THAT REGARD.

THANK YOU, YOUR HONOR. WITH RESPECT TO T HE B RA DY CLAIM, THE B RADY STAND AR D THIS COURT HAS R EC EN TL Y H AD THE OPPORTUNITY TO A DD RE SS CASES I NVOLVING BOT H BRA DY A ND GIGLI O , HOWEV ER YOU W ISH TO PRONOUNCE IT , M OST N OTABLE Y W IT H R ESPE CT T O T HE FLOYD CASE A ND T HE BRA DY ppSTANDARD O N MAT ER IALI TY I S WHAT WE ARE HER E O N T ODAY. QUESTION?

IN THE F IRST TRIAL WHICH I REALIZE WE ARE ON THE SECOND TRIAL, BUT W HE N T HE ppWITNESSES TES TIFIED THEY HAD NEVER MET, THAT WAS FAL SE .

THAT'S N OT M Y RECOLLECTION OF ACT UALL Y H OW THEY TESTIFIED. THE JONES WAS A SK ED DID YOU ppTALK T O J OHNS ON A BOUT Y OU R TES TIMONY HER E T OD AY . IN THE FIRST T RI AL , D EFEN SE COUNSEL S MITH ASKED J ON ES , THIS TRIAL WAS HELD I N NOVEMBER OF 1983. ON THE FIRST T RIAL, O N T HE FIRST DAY O F TRIAL N OV EMBE R 1ST , SIN CE COUNS EL S MITH ppSUS PECTED THA T THEY W ERE TOGETHER IN A HOLDING CELL AND HAD SOME OPPORTUNITY TO TALK ABOUT THE CASE , T HERE IS Q UE ST IONI NG ABO UT D ID Y OU TALK TO JOHNSON ABO UT Y OUR TESTIMONY HERE TODAY , A ND JONES DENIES IT. AND HE I S A LSO ASK ED , W EL L , WEREN'T YOU IN THE SAME HOLDING CELL. JONES PROCEEDS T O S TART RESPONDING AND THEN IS INTERRUPTED AND HE SAID, NO, WE WEREN'T EXACT LY I N T HE SAME H OLDI NG C EL L S O I T I S ppAN UNFIN IS HE D E XP LA NA TION S O CERTA INLY WE DO NOT B ELIE VE THAT THAT S TATEME NT WAS FALSE.IN FACT , QUI TE F RA NKLY , MELVIN J ON ES T OO K EVE RYTH IN G VERY LITERALLY , E XA CT LY W HA T H E W AS A SKED I S WHA T H E TRIED TO ADDRESS. DID YOU H AV E A C ONVE RS ATIO N. ppJOHNS ON IS THE SAM E WAY. DID YOU HAVE A C ON VE RSAT ION W ITH JONES. JOH NSON'S E XPLANA TION I S , N O , I DIDN'T HAVE A CON VE RS AT IO N WITH MELVIN J ON ES. WHAT JOHNSON K NE W W AS THA T ON JULY 1 1T H O F 1 98 3 , A PERSON THAT WAS UNK NO WN T O HIM APP RO AC HES H IM I N A HOLDING CELL WHERE OTHER INMATES ARE, AND SHOWS H IM A MAP OF THE C RI ME S CENE . JONES J OH NSON I N T HE P OS T C ONVICTION HEARING TES TI FI ESTHAT HE W AS ALREADY F AMILIAR WITH I NDIV IDUALS APPRO AC HING HIM, TRYING T O G ET INFORMATION A BOUT HIS CASE TO BENEF IT T HE MS EL VES A ND H E THE N A SKED F OR THE CEO O R CORRECTIONS OFFICER TO BE MOVED AND T HAT'S WHAT TOM HOGAN, THE 198 3 PRO SE CU TO R -- ppALSO TESTI FIED T O THA T , I N FACT, IT WAS HIS RECOLLECTION THAT JOH NS ON WAS SCARED A T B EI NG APPROACHED. WE USED THE LAN GU AG E TERRIFIED IN OUR BRI EF AND O PPOSING COUNSEL IS C RITICA L OF OUR USE OF THAT TER M BUT IT IS ONE THAT WAS U SED B Y THE TRIAL COURT A FT ER CONDUCTING THE EVIDENTIARY HEARING SO CERTAINLY WE WOULD R ELY ON THE TRI AL COURT'S ORDER AND THE TRIAL COURT WHO WAS P RESE NT AND MADE C RE DI BILITY DETERMINATIONS.

WELL, Y OU D O G OING B AC K TO BRADY , I THI NK Y OU A GR EE OR THE TRIAL C OU RT F OU ND THAT THIS WAS - - S HOUL D H AVE BEEN DISCLOS ED .

THE TRIAL COURT F OUND THAT IT WAS FAVOR ABLE AND THAT IT H AD NOT B EEN DISCLOSED.

I MEAN , I T CER TA INLY COULD HAVE B EEN U SE D I N IMPEACHMENT A T L EAST S OR T O F A N O DD THI NGS T HA T S OMEO NE IS GOING TO GO UP TO S OMEO NE IN A CELL AND G O , H EY , ppHERE'S A M AP . THIS CAN HELP Y OU .

NOT FOR JON ES , N OT W HE N YOU READ ABOUT THE TYP E OF INDIVIDUAL THAT HE IS TRYIN G T O SHOW E VERY ON E HIS MAP . HE S ENDS THI S M AP A ND A HANDWRITTEN L ETTER O UTLINI NG WHAT HE HAS S EEN ppSIMULTA NEOUSLY TO BOT H T HE STATE ATTORNEY'S O FFICE AND THE PUBLIC D EF ENDER' S O FFIC E A ND HE O FF ER S AN O UT LI NE O F WHAT HE WITNESSED A ND INCLUDES INFORMATION THAT JOHNSON DIDN'T KNOW SPECIFICALLY THAT THE SECOND TAXI CAB ARRIVED AND THE N THE POLICE ARRIVED AFTER THAT TAXI CAB.

SO IT WAS K NO WN T HAT H E HAD OBVIOUSLY T HAT H E S ENT THE MAPS A ND H E W AS A STA TE TO T HE S TATE ATTORNEY AND TO THE P UB LIC D EF ENDER?

THAT WAS DISCLOSED TO THE DEFENSE AND D UR IN G J ON ES ' DEPOSITION HE I S ASKED A T LENGTH ABOUT HIS 198 3 DEPOSITION, SEPTEMBER OF ' 83 HE IS ASKED AT L EN GT H ABOUT THE MAP THAT HE DRE W , THE PLACEMENT OF THE P AR TI ES , THE LETTER THAT HE WROTE , AND SO HE IS ASKED ABOUT I T BOTH A T DEP OS IT ION A ND A T TRIAL ABOUT THE LETTER - - A T THE FIRST TRIAL A BO UT T HE LETTER. AT THE SECOND TRIAL ALSO ABOUT THE L ETTER.

WHAT WAS T HE MOT IV AT IO N FOR SHOWING E VERYBODY THE MAP?

JONES WANTE D E VE RYBO DY T O KNOW THAT HE KNEW W HERE EVERY THING WAS. THAT HE , PERHAPS I T W AS THA T HE WAS ABLE T O G IVE PARTICULAR FACTS THAT WOULD NOT HAVE BEEN K NOWN B Y ANYONE BUT AN EYEWITN ESS SPECI FICALLY THE COLOR OF THE SHIRT.

HE W ANTED TO GET S OM E KIND OF A DEAL FROM THE STATE?

I DON'T THINK THAT'S REALLY SER IOUSLY QUE ST IONE D. HE W AS N'T H APPY THAT

AT ONE P OI NT H E A CT UALL Y ppCHANGED THE F ACTS .

SURE .

OR W HATEVER IN T ERMS O F ppALTERING IT. IT WASN'T WHAT H E U LTIMAT EL Y SO H E CLE AR LY W AS F OO LI NG AROUND IN THE SEN SE O F

JONES I S L OO KING T O BENEFIT JONES.

HE WAS S ORT O F DOI NG WHA T W AS C HARA CT ERIZE D B EFOR E A S THE OTHER P RISO NE RS A PPROACHING , Y OU K NO W , ANOTHER DEFENDANT AND T RYING TO FIND OUT INFOR MA TION ABOUT THEIR CAS E AND I N HOPES THEY COULD G ET INFORMATION AND THEN T HEY COULD USE IT. SO JONES FITS THAT PRO FILE BECAUSE HE HAD VERY SER IO US CHARGES P ENDING A GAINST HIM . IS THAT CORRECT?

HE HAD A L OT O F C HA RG ES PENDI NG AGAINST HIM. HE IS A BAD C HECK W RI TE R A ND HE HAD A CABIN ETMAKI NG BUSINESS WHERE HE WOU LD ACCEPT MONEY FOR DOING CABINET WORK AND THEN NOT D O THE WORK AND S O H E H AD I BELIEVE 17 OR 1 8 C HARG ES AT T HE TIME. HE ACTUALLY TESTIFIED AT TRIAL THAT HE HAD 24 FEL ON Y CONVICTIONS. THE JURY DIDN'T KNOW THA T THEY WERE B AD C HE CKS A ND GRAND THEFT T YPE CHA RG ES , BUT THEY DID KNO W THAT HE HAD, INDEED , 2 4 C HA RG ES . JONES ADMITTEDLY W AS N OT HAPPY THAT T HE POL IC E DETECTIVE , SAN MAR CO , S AI D , W ELL , OKAY , M AYBE YOU CAN SERVE YOUR TIME WITH P OLICE OFFICERS AND SO J ONES , AND T HAT IS BROUGHT OUT.

I GUESS GOING BACK TO , THOUGH, HOW I T WOULD HAV E HELPED THE D EFENSE , THE DEFENSE, WHETH ER Y OU T HINK IT IS A - - H OW W E THI NK I N HIN DSIGHT WE ARE TRY ING T O SHOW THAT J ONES AND J OH NSON HAD KIND OF COME U P WITH THIS TOGETHER T O FRA ME T HE M ; IS THAT CORRECT?

THAT'S T HE DEF ENSE -- ppTHEORY.

SOMEHOW IT H ELPE D THE DEFEN SE TO BE ABLE T O S AY AND YOU WERE IN THE S AM E CELL A ND Y OU E VE N G AV E T HE M A MAP THA T W AS , Y OU SAI D ppWOULD HEL P H IM . NOW, I MEAN , I DON 'T KNO W , A GAIN THIS IS - - T O M E THAT'S SORT OF DIF FERE NT FROM, WELL, THEY D ID N' T E VE N KNOW EACH OTHER. THERE WAS NO CONTACT. NOW, WHETHER I T M EE TS T HA T P RONG SO I T U ND ER MINE S O UR CONFIDENCE AND PUTS THE WHOLE TRIAL IN A DIF FERE NT LIGHT WOULD BE A QUESTIO N LOOKING AT THE O THER THI NG S , BUT IT IS DEFIN ITELY SOM ETHING THAT I S - - C OU LD BE USED BY A GOO D D EF ENSE LAWYER TO F URTHER D EV EL OP A THEME THAT THEY W ANTE D T O DEVELOP ABOUT T HI S GUY , J ONES, W HO IS A LIT TLE , YOU KNOW, A G OO D E YEWI TNES S I S A LITTLE S CR EW Y AND N OW H E I S A PPROACHING JOHNSON S O A T LEAST I THINK THAT'S SOMETHING THAT , Y OU KNO W , AGA IN WHETH ER H E G ET S THE M OVER THE HUM P O F W HETH ER I T THE RE SHOULD BE A N EW T RIAL IS A DIFFERENT STORY B UT I T DOES IMPRESS ME AS SOMETHING THAT COULD B E D EV ELOPED.

YES, JUSTICE , I T I S T RU E IT MIGHT HAVE B EE N HELPF UL . THAT IS NOT T HE BRADY TES T THE FACT THAT IT MIGHT H AV E BEEN HELPFUL TO MATER IALITY , HELPFUL TO THE DEFENSE.

YOU HAVE HERE A S ITUATION WHERE YOU'V E G OT JONES ppPICKING OUT SMITH. YOU'VE GOT OBVIO US LY J OH NSON H AS AN A X T O GRI ND. YOU'VE GOT AN E YEWI TN ES S THAT C OULD N' T P ICK O UT T HESE PEOPLE, Y OU KNOW , C OULD N'T PICK THEM OUT O F A P HOTO PACK. YOU'VE GOT T HE WEA PONS NOT I MEAN , T HE RE S TART S T O BE A CONCERN AS T O W HE TH ER A LL O F T HESE THI NG S ADD UP TO A N AIR TIGH T CAS E AGA IN ST MR. SMITH AS BEING T HE ppPERPETRATOR OF THIS CRI ME .

YES , J US TI CE PAR IENT E , I WOULD LIKE TO ADDRE SS T HO SE OTHER FACTORS. I AM GOING T O S TART WITH T HE PHOTO PACK. THE REPORT T HAT OPP OSIN G COUNSEL IS R EF ERRING T O T HI S MORNING WITH REGARD T O D AV ID M cGRUDER, M R. M cG RUDE R W AS THE COOK AT THE BAR BE CU E RESTAURANT, THE ppHOGGLY-WOBGGLY BARBECUE AND MR. GRUDER BETWEEN THE END OF MARCH AND THE BEGINNING OF APRIL, I BELIEVE 3 -3 1 T O 4-4 THE S TATE A TT ORNEY I S INTERVIEW ING M UL T B EL L - - MUL TIPLE W ITNE SSES AND T HERE IS A NOTATION T HA T McG RUDE R COU LD NOT PICK OUT THE INDIVIDUALS OUT OF A P HO TO PACK. WELL, THERE IS A N EXPLANATION FOR THAT AND THAT COMES ABOUT AND IS ACTUALL Y ESTABLISHED AT THE TIME OF TRIAL. IN VOL UME 7 O F T HE T RIAL R ECORD AT P AG E 118 9 DETECTIVE SAN MARCO TESTIFIES THAT ON 3-2 1 A PHOTO PACK CON TA IN ING SEVEN PICTURES IS SHOWN TO ppMR. McGRUDER. ppNEITHER D EFEN DANT'S PIC TU RE , NEITHER JOHNSON OR S MI TH'S PHOTO IS IN THA T P HOTO P AC K. H E PICKED OUT N O ONE . THE SECOND PHOTO PACK I S SHOWN TO M R. M cG RUDE R O N 3 -23. THIS IS A F IV E- PI CT UR E PHO TO PACK WITH JOHNS ON, THE TAL L , ppLIGHTER SKINNED INDIVIDUAL WHO R EMAINED OUTSIDE OF THE ppBAR BECUE RESTAURANT. JOHNSON'S PHOTOGRAPH IS IN THAT. McGRUDER D OESN 'T PICK OUT ANY PHOTO. THE THIRD P HO TO P AC K T HA T D ETECTIVE SAN MARCO TESTIFIES TO AND THIS IS I N THE RECOR D A T P AG E T -1 11 1 WAS SHOWN TO HIM O N 4 -8-9 3 AFTER THE S TA TE A TTOR NE Y' S W HERE M cG RU DE R T EL LS TOM HOG AN

YOU MEAN ' 83 , R IGHT ?

'93. '83 , Y OU 'RE R IGHT , THA NK Y OU , ppYOUR HONOR, I A PPRE CI ATE I T. '83, M cGRU DE R P IC KED OUT A PHOTO WHICH WAS T ESTIFIED T O AT TRIAL A S B EI NG D ERRI CK TYRONE SMITH WHICH THE DEFENSE DISPU TE D A T THE TIM E DURING CLOSING A RGUMENT. MR. SANDERS SAYS THEY SHOWED YOU A PHO TO THA T H E S IGNE D AND THEY SAY IT I S SMITH BUT I DON'T REALLY THINK SO.

WAS IT A P HO TO P AC K?

IT WAS A PHOTO P ACK.

AND THE F IRST PHO TO PAC K HE IS SHOWN T HA T S MI TH IS IN?

ACCORDING TO DETECTIVE SAN M ARCO 'S T ES TI MO NY .

THAT S OUNDS LIKE A REA LL Y ODD WAY O F , Y OU K NO W , DOE S THA T MAKE SENSE T O Y OU A S FAR AS THE POLICE?

IT MAY B E T HA T T HEY D O ppSHOW A P HOTO P AC K WIT H N O SUSPECTS TO TEST, YOU KNOW , I DON'T KNOW. I DO K NOW O NLY WHA T DETECTIVE SAN MARCO TESTIFIED TO. SO T HE FAC T THA T McGRU DE R SAYS I C OULDN'T P IC K O UT ANYONE OUT OF A P HO TO P AC K IN EARLY A PR IL B EF OR E H E I S SHOWN THE PHOTO P AC K B Y SA N MARCO THAT H AS S MITH 'S P HOTO IN IT I S Q UI TE F RANK LY A RED HERRING. THERE IS NOTHING TO THAT. AND R EG AR DLES S O F M cG RUDE R' S INABILITY TO E ST IM ATE M R. SMITH'S ACTUA L W EIGH T , ppTHAT HAS NOTHING TO D O W ITH THE FIN GERPRINT THAT IS FOUND ON T HE T ELEP HO NE A T THE H OGGL Y- WOGG LY B ARBE CU E AND THAT IS SIGNIFI CANT BECAUSE YOU H AV E THE C AB COM PANY DIS PA TC HE D CONFIRMING AT 12 :2 8:00 A.M . ON MARCH 3 1S T , 198 3 T HE Y RECEIVED A DISPATCH TO THE B ARBECUE RESTA UR AN T AND T HAT IS THE T ELEP HONE THA T W AS USED BY THE SHORTER , D AR KE R INDIVID UAL, THE INDIVIDUAL THAT IS DES CR IB ED B Y MR. McGRUDER. IN ADDITION OF COURSE Y OU HAVE DERRICK J OHNS ON W HO TESTIFIES AT THE PRELIMINARY ppHEARING I N J UN E A ND O F COURSE DOES, IN FACT , IDENTIFY T HE DEF ENDA NT ppDER RICK TYR ON E SMITH A S THE SHOOTER. IN DECISION YOU YOU HAVE THE GUN, THE GUN WHICH W AS DESCRIBED WAS CON SIST ENT WITH THE GUN M ISSING FRO M R OY C ON E' S R ESID EN CE W HO W AS THE UNCLE T O D ER RICK T YRON E SMITH. HE WAS U NA WARE W HE N T HE G UN WAS MISSI NG BUT K NE W H E H AD HAD IT FOR NEW YEAR'S EVE AND DERRICK T YR ON E SMITH H AD BEEN OVER TO HIS HOUSE SOMETIME BEFORE MARCH. THE MIDDLE - - M ET AL COMPOSITION WAS FAM ILIA R T O ppBULLETS P URCHAS ED T EN YEARS EARLIER. THAT SAME GUN , THE R OB BERS D IDN'T GET ANY M ON EY F RO M THE C AB D RIVER. FOR M R. S ON GE R F LE D TRY IN G ppTO GET A WA Y FRO M THE A RMED GUNMEN AND HE WAS SHO T IN THE BACK AND KILLED. ppNOW , S O D ER RI CK T YRON E S MITH'S ROB BERY A TTEM PT I S ppUNSUCCESSFUL. AS A RESULT , 1 2 H OU RS LAT ER , H E U SE S A GUN I N A M OTEL ROBBERY. WE KNOW IT IS D ER RICK T YRON E SMITH BECAUSE HIS FINGERPRINTS ARE RECOVEREDFROM THE SCENE, THEY ARE RECOVERED F RO M B EL ON GING S TO THE V ICTIM , H E ALS O P UN CHES THE V IC TIM AND T HR EATE NS H IM WITH THE GUN AND ALSO HAS A WATCH, A V ER Y DISTI NC TIVE WATCH. THIS IS A C AN AD IA N C OUPL E THAT H AS F RENC H LET TERING ON IT. SO IT IS A VER Y D IS TINC TI VE WATCH THAT IS LINKE D THI S ARMED R OBBERY 1 2 HOU RS A FT ER THIS SHOOTING.

BUT ARE THE G UN S NEV ER ppRET RIEV ED ?

THE GUN IS NEVER RETRIEVED.

AND THEN THE BULLET , I GUESS THIS IS WHERE I UNDERSTAND HOW DOES T HA T HELP SHOW THA T THAT WAS H IM -- pp12 H OURS E AR LI ER?

W EL L , THA T W AS A DD RE SSED ON DIRECT APPEAL BY THE COURT WITH RESPECT TO THE SIMILARITY OF A HAND GUN , T HE USE OF A HAN D G UN , THE USE OF FORCE, THE M OT IV E , THE IDE NTITY A ND L IN KING H IM TO THE P ER SO N T HA T'S IN POSSESSION OF A G UN. EAR LIER THAT EVENING, YOU HAD SEVERAL W IT NE SSES IDENTIFYING SMITH AS THE PERSON BEING IN POSSESSION OF A GUN. YOU HAVE M R. ROU S TES TI FY IN G AT THE NAME OF THE GAM E , W HICH I S A CLU B W HE RE H E I S WORKING AS A DISC J OC KE Y , H E IS IN POS SESSION OF A GUN. HE ASKS M R. ROU SE TO C ONCE AL THE G UN NEAR THE T URNTAB LE . YOU ALSO H AVE B OT H C AR OL I N MATH IS AND R EGIN A M AT H IS C ONFIRMING T HA T THE D EFENDANT HAD A GUN O R BULLET THAT N IGHT AND TRI ED TO SELL THE GUN A ND A LS O THAT SAME NIG HT T HA T T HE ppDEFENDANT TELLS R EGIN A MATHIS HE IS GOING T O HUS TL E MONEY BECAUSE H E DOESN'T HAVE MONEY AND W E ALS O H AVE ppPRISCILLA WAL KE R AND J AMES MATTHEWS. PRISCILLA WALKE R I S T HE INDIVIDUAL THAT S EES THE DEFENDANT WHEN HE C OMES BACK TO HER R ES ID EN T - - R ES ID ENCE AFTER THE SHOOTING AND H E TELLS HER SOMETHING SIGNIFICANT.HE TELLS HER HE SHO T A C RACKER CAB DRIVER IN THE BACK BECAUSE HE DIDN'T WANT TO GIVE UP HIS MON EY. NOW, WHO BUT T HE P ER SO N T HAT IS INVOLVED IN THIS WOULD KNOW FIRST O F A LL T HE IDENTITY OF THE VICTIM , A ND SECOND THAT THE ROB BE RY W AS U NSUCCE SSFUL.SO THAT'S A VER Y S IGNIFICA NT FACTOR THAT COMES ON T HE HEELS OF THE SHOOT IN G. TO JAMES M AT HI S , A N INDIVIDUAL THAT TESTIFIES AT TRIAL T HAT S AY S D ERRI CK TYRONE SMITH AND I WERE FRIENDS.HE SAYS THAT H E M IGHT HAV E SHOT SOMEONE. HE WAS S CARED AND NEE DE D A PLACE TO STAY, AND T HA T' S ALL ON THE E VENI NG , T HE 24-HOUR P ERIOD SURRO UNDING THIS OFF ENSE. SO THE STRENGTH OF THE STATE'S E VIDENCE IN EVALUATING A CLA IM O F ppUNDISCLOSED EVIDENCE YOU DON'T TAKE AWAY AND S EE WHAT IS LEFT. WHAT YOU DO IS ADD T O A ND SEE WHAT HAPPENS THEN. YOU ESS ENTIALLY S AY , W HETH ER THE FAVOR ABLE E VIDE NC E C OULD R EASONABLY BE TAKEN T O P UT THE WHOLE CASE IN SUCH A DIFFERENT LIGHT A S TO UND ERMINE CONFIDENCE IN THE VERDICT. WE HAVE THE DEFEN SE K NOWS THAT THESE IND IVIDUALS ARE ALL H OU SE D A T M AX IM UM SECURITY PINEL LAS C OU NT Y JAIL. AS A MATTER OF FACT, WHEN JOHNSON TESTIFIES AT TRI AL ON REDIR EC T E XAMI NA TI ON , J OHNSON TESTI FI ES T HA T H E COULD HEA R SMI TH AND J ON ES A RGUING WITH EAC H OTH ER . AND SO YOU H AV E AND Y OU A LS O HAVE JONES TESTIFYING T HAT , YES, INDEED , SMITH HAD THREATENED HIM WHILE THEY WERE IN THE J AI L TOG ETHER. IT IS N O G REAT S URPR IS E T HA T THEY WERE I NC ARCE RA TE D A T THE SAME PLACE. THEY WERE NOT PLA CE D IN T HE SAME CELL. THEY WERE A T O NE POINT I N TIME APPARENTLY IN A H OLDI NG CELL WHERE THE MAP T HA T H AS BEEN DISCLOSED TO THE - - T HE ppMAP T HA T I N Q UEST ION.

YOU ARE TALKING ABOUT JOHNSON AND JONES NOW?

JOHNSON , J ON ES AND S MITH WERE ALL THREE AT PINEL LA S COUNT Y JAIL. THEY WERE ALL I N MAX IMUM SECURITY. NOT SURPRISING. YOU 'VE G OT J OHNS ON A ND S MITH WHO ARE A RR ESTE D SHO RT LY AFTER THE MURDER, I THINK SMITH WAS A RRES TE D 1 6 D AY S AFTER THE MUR DER AND J OHNS ON HAD ALREADY BEEN ARR ES TED. JOHNSON IS MAKING STATEMENTS TO PEOPLE AT HIS MOT HE R'S SCHOOL, TO HIS MOTHER WIT H REGARD TO HIS K NOWLEDGEABOUT THE O FFENSE AND S O VERY QUICKLY THEY A RE DISCOVERING THE JOHNSON AND THEN THE DERRICK TYR ON E SMITH LINK AND THOSE P EO PLE AT THE NAME OF THE GAME WER E ABLE TO PLACE JOH NSON AND SMITH TOGETHER THAT NIGHT AND SMITH IS ALWAYS THE O NE THAT IS IN P OSSE SSIO N O F T HE HAND GUN.

MR. L AN GSTO N S TART ED OUT B Y SAYING THA T THE T RI AL JUDGE H AD E XC LU DED CER TAIN CUMULATIVE EVIDENCE IN THE ANALYSIS OF W HA T I MPAC T THE UNDISCLOSED EVIDENCE MIGHT HAVE HAD. YOU HAVE J US T D ONE A N EXCELLENT JOB OF TRYING T O DRAW OUT, YOU KNOW , W HAT T HE EVIDENCE WAS AGA INST T HI S DEFENDANT AND T HE N U SI NG T HE ppTHINGS T HA T WER EN'T DISCLOSED , YOU KNO W , T O PRESENT THAT WHOLE C ON TE XT . W OULD YOU RES POND , T HO UGH , TO HIS INITIAL STA TEMENT THAT THE JUD GE ERR ON EOUS LY E XCLUDED SOM E THING S THA T WEREN'T D ISCL OSED AND N OT DOING A P ROPE R C UM ULAT IV E A NALYSIS ? pp

YOUR HONOR, I B ELIE VE THAT MAY BE REFERRING TO A ppSECOND ARGUMENT , H IS S EC ON D ISSUE WITH REGARD TO LIMITATION AT THE EVIDENTIARY HEARING. I'M NOT SURE I U ND ERSTAND I T FAIRLY ENOUGH T O RESPOND TO IT. I KNOW THAT THE T RIAL C OU RT DOES ANNOUNCE THA T HE H AS MADE AN I NDIVID UA L A ND A CUMULATIVE A NA LYSI S I N THE O RDER AND HE CERTA INLY UNDERSTANDS HIS RESPONSIBILITY, THE TRIAL COURT OUTLINES THE L EG AL STANDARDS THAT HE D OES HAVE TO FOLLOW. I WOULD HAVE TO REL Y O N T HE TRIAL COURT'S ORDER B EC AUSE I MAY B E M ISUN DERS TAND IN G THAT.

B UT T HE RE WER EN'T ANY CLAIMS IN THIS REGARD T HAT THE TRIAL C OURT S UMMA RILY OBJ ECTED WITHOUT C ON SIDERI NG AT THE EVIDENT IA RY HEARING?

THAT'S A CT UA LLY MR. McLAIN'S SECOND A RG UMENT , AND THE - - O UR A RG UM EN T R ESPONSIVE, IT IS A ppTHREE-PAGE ARG UMENT I N T HEIR INITIAL BRIEF. MY RED LIG HT I S ON. MY I C ONTINUE?

YES.

THANK YOU, YOUR HONOR, I APPRECIATE THE INDULGENC E . FROM PAGE 77 TO 8 0 I S MR. SMITH'S ARGUMENT WITH RESPECT TO THE LIMIT AT IO N OF THE EVIDENTIARY HEA RI NG , AND O UR RESPONSE IS THA T T HA T WAS I NS UF FI CI EN T TO A CT UA LLY LET US KNOW EXACTLY WHAT H E WAS COMPLAINING ABOUT. BECAUSE THERE W ER E S EVERAL FACTORS, AND I CAN ONL Y DIRECT THIS C OURT'S ATTENTION TO THE RECORD AT PAGE 3 43 1 AND THA T' S THE TRIAL C OURT'S ORDER WHICH DOES, IN FACT , E XPAN D SEVERAL AREAS T O E XC LUDE ADDIT IONAL A LLEGATIONS. I WON'T BEL AB OR T HE P OI NT BUT WOULD ASK T HE C OU RT L OOK AT THAT ORDER. THAT IT I S THE M AY 10T H , 2002 ORDER AT 3 13 - - 3 431. T HANK YOU , YOUR H ONOR .