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David A. Gore v. State of Florida
SC04-1458 | SC05-733
NEXT CASEGOER
VERSUS STATE OF FLORIDAA
MR. GRAHAM.
>> THANK YOU YOUR HONOR PLAY
IT HE MAY IT PLEASE THE
COURT.
>> THANK YOU.
>> MY NAME ANDREW GRAHAM
PRIVATE ATTORNEY REGISTERED
ATTORNEY PRACTICE$$!!!!ING MELBOURNE
FLORIDA APOINTED IN 1999 TO
REPRESENT MR. GORE, THIS
PROCEEDING TODAY, IS AN
APPEAL FROM THE DENIAL OF
3.850 MOTION AFTER HEARING,
BEFORE THE TRIAL JUDGE IN ST.
LUCIE COUNTY.
>> DID OF YOU AN ENORMOUS
NUMBER OF ISSUES WOULD YOU --
>> ACTUALLY NOT ALL THAT MANY
ISSUES BECAUSE -- ONES I READ
EVERY WEEK IN THE LAW WEEKLY
SOME OF THE CASES, IF YOU ARE
GOING TO ADDRESS SOME OF THEM
PLEASE DIRECT OUR ATTENTION
SO WE KNOW EXACTLY WHERE YOU
ARE GOING.
>> YES I'D LIKE TO ADDRESS
THE ISSUE OF MATTER OF FACT
-- OF COUNSEL AS IT PERTAINS
TO THE JUMIO VIOLATION AND
GUZMAN VIOLATION I HAVE
ALLEGED IN THE BRIEFS.
IN THIS PARTICULAR CASE, IT
WAS -- WELL SHGS!!$$!!!!!!!!, WE START FROM
THE BEGINNING.
THE JURY IN THIS CASE DID NOT
HAVE ACCURATE INFORMATION IN
ORDER TO FUNCTION AS A JURY
IS REQUIRED TO FUNCTION UNDER
6TH AMENDMENT AND INTEND ED
TO FUNCTION MAKING A
SENTENCING RECOMMENDATION
BECAUSE IT DID NOT KNOW OF
ALL OF THE MANDATORY TIME
THAT MR. GORE WOULD HAVE TO
SERVE THEREFORE DID NOT KNOW
OR UNDERSTAND HOW MUCH --
WHAT A LIFE RECOMMENDATION
REALLY MEANT.
>> ESSENTIALLY YOU ARE SAYING
IS THAT -- PAROLE WOULD NOT
HAVE BEEN AVAILABLE TO HIM
CONSECUTIVE SENTENCE 50G
YEARS RATHER THAN 25, LET'S
ASK -- WE NEED PARTICULAR TO
PROBABLY ANSWER A PRELIMINARY
QUESTION, AND THAT IS WHY DID
THE DIRECT APPEAL ON HOW THAT
WAS HANDLE INITIALLY NOT
REALLY DISPOSE OF THE GUTS OF
THIS ARGUMENT WITH THE COURT
FINDING NO ERROR THERE?
>> THERE ARE TWO FACTS.
THAT HAVE BEEN DEVELOPED,
SINCE THE APPEAL WAS DECIDED.
THIS COURT, IN THE APPEAL,
POINTED OUT THAT THE LAWYER
FOR MR. GOER DID NOT OBJECT,
TO THE TESTIMONY OF MR. STONE
ON CROSS-EXAMINATION
MR. STONE WAS THE FORM ER!!$$!!!!ER
STATE ATTORNEY, WHO
PROSECUTED MR.GOER IN THE
ORIGINAL TRIAL AND WATERFIELD
AS CO-DEFENDANT.
>> DID COURTREST DECISION ON
THE FAILURE TO OBJECT.
>> DID NOT REST ITS DECISION
NEVERTHELESS POINTED OUT THAT
WAS WAIVE SNOOER I
UNDERSTAND.
>> AS A RESULT OF THE
ALLEGATION 3S #.85 # 0 MOTION
HEARING HELD IN INEFFECTIVE
ASNOOIVENTS DID THE COURT
ADDRESS SUBSTANCE
NOTWITHSTANDING FAILURE TO
OBJECT.
>> YES, THE COURT DID NOT
HAVE THE FACT THAT INDEED,
MR. STONE HAD NOT EXCUSE ME,
THE ATTORNEY REPRESENTING MR.
GORE HAD NOT INVESTIGATED ANY
-- ANYTHING THAT MR. STONE
WAS LIABLE TO TESTIFY TO EVEN
THOUGH HE CALLED HIM AS A
WITNESS IN THE PROCEEDING.
IN OTHER WORDS HE DIDN'T
DEPOSE HIM IDENTITY TALK TO
HIM.
AND THE STATE ATTORNEY WHO
WAS PROSECUTING THE CASE ON
THE RETRIAL ON THE STENGS
RETRIAL, HAD TALKED TO
MR. STONE, AND THEY HAD
DISCUSSED HIS TESTIMONY, IN
REGARD TO WHAT HE WOULD SAY
AS TO THE POSSIBILITIES OF
PAROLE.
>> HOW ABOUT, QUESTION IF THE
COURT HELD THAT THAT WAS NOT
A PROBLEM, NOT AN ERRONEOUS
CIRCUMSTANCE, ON THE
SUBSTANCE AND HOW CAN YOU
DEMONSTRATE PREJUDICE, WITH
REGARD TO THE INEFFECTIVE
ASSISTANCE ON THAT ONE POINT.
>> BECAUSE THE JUMIO GUZMAN
REQUIRE THREE THINGS FALSE
TESTIMONY KNOWLEDGE OF THE
FALSE TESTIMONY, AND
MATERIALITY, IN THIS CASE,
THE FALSE TESTIMONY WAS
TESTIMONY BY THE STATE
ATTORNEY ON CROSS-EXAMINATION
THAT MR. GORE COULD BE
RELEASED AT ANY TIME.
THE KNOWLEDGE OF THAT WAS
THAT HE AND THE PROSECUTOR
HAD DISCUSSED THAT AHEAD OF
TIME, AMONGST THEMSELVES, AND
THEY KNEW THAT THAT WAS GOING
TO HAPPEN NCHLT ADDITION
THERE WAS AN ATTORNEY FROM
PROBATION AND PAROLE SITTING
AT COUNSEL TABLE, WHEN THAT
TESTIMONY WAS MADE.
AND THAT PERSONAL CERTAINLY
HAVE HAD A DUTY UNDER -- TO
BRING IT TO THE COURT
ATTENTION THAT THAT TESTIMONY
WAS FALSE NOW THOSE FACTS
WERE NOT DEVELOPED TALKED
ABOUT OR KNOWN OF DURING THE
DIRECT APPEAL AND UND ER!!$$!!!!ER MA HA
SAYS YOU DON'T RELITIGATE
ISSUES SAYS WHEN DISPUTED
FACTS OF YOU TO DEVELOP THOSE
FACTS OF DUTY TO DO THAT.
>> DO WE HAVE YOU THINK WE
HAVE SATISFIED THE J$$!!
KNOWLEDGEABLE PRESENTATION OF
FALSE EVIDENCE.
>> YES, AND YOUR BASIS FOR
THAT.
>> YES SHGS!!$$!!!!!!!!, MR. STONE'S TESTIFIED
IN RESPONSE TO A QUESTION
THAT THIS COURT FOUNDED --
OBJECTED TO -- THAT MR. GORE
COULD BE RELEASED AT ANY TIME
IF THERE WAS LIFE
RECOMMENDATION.
>> AND YOUR POSITION IS THAT
THE STATE INCORRECT WHEN IT
SAYS THAT WAS REALLY JUST
REALLY DIRECTED TO THOSE TWO
NONCAPITAL CRIMES, REALLY WAS
NOT IF YOU LOOK AT THE
TRANSCRIPT RULING IN
REFERENCE TO EVERYTHING THAT.
NOT A FAIR --
>> MR. CRIMINAL LAW CLASS
THAT WOULD BE ABSOLUTE
CORRECT ANSWER IN OTHER WORDS
IN THE REAL WORLD THAT JURY
THOUGHT THAT WHEN THEY SAID
THAT THEY RELEASED AT ANY
TIME THAT IS WHAT THEY
THOUGHT THEY DID NOT
UNDERSTAND IT WAS CLEAR
BECAUSE THEY ASKED QUESTIONS,
THERE WERE TWO JURY QUESTIONS
WHICH IS ANSWERING THE
FURTHER ANSWER TO YOUR
EARLIER QUESTION, THAT THE
JURY WANTED TO KNOW HOW LONG
THIS GUY WAS GOING TO HAVE
STAY IN JAIL IF THEY JADE
JURY RECOMMENDATION OF LIFE
THEY ASKED WHEN -- CRED FOR
TIME SERVED YES, OF COURSE
CREDIT FOR TIME SERVED
ABSOLUTELY CORRECT STATEMENT
OF THE LAW TWO WHEN WOULD HE
GET OUT ON TWO COUNTS THE
ANSWER THERE IS CABINET GET
OUT ON THOSE TWO COUNTS UNTIL
HE SERVES HIS ENTIRE
MANDATORY 50-YEAR SENTENCE,
SO THAT WAS A WRONG ANSWER TO
RELY ON THE TESTIMONY
PROVIDED BY MR. STONE, AND
THAT DECEIVED OR
INADVERTENTLY MAYBE, CONFUSED
THE JURY HERE, AND SO JURY
REALLY DIDN'T UNDERSTAND, NOW
THIS JURY.
>> ISN'T THAT FALSE STATEMENT
OF LAW MODERN A FALSE STATE
OF FACT.
>> OPINION CLEARLY CLEARLY
PIN THERE IS NO QUESTION I
THINK OBJECTIONABLE ON
INDICATION OF BEING PIN.
>> JULIO ISN'T THAT DESIGN
WHERE YOU PRESENT FALSE
TESTIMONY AS TO FACTS NOT --
FALLS PIN ERRONEOUS PIN.
>> UNDER OE!!$$!!-- PHENOMENON, TWO
SOUTH CAROLINA CASES, SHAFER,
SUPREME COURT OF THE UNITED
STATES SAYS A JURY IS
ENTITLED TO KNOW WITH THE THE
EFFECT OF LIFE RECOMMENDATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
RECOMMENDATION --
>> JULIO VIOLATION, ON THIS
SO.
>> YES I AM.
>> AND ISN'T JULIO DESIGNED
TO PROHIBIT THE STATE FROM
PRESENTING TESTIMONY ABOUT
FALSE FACTS NOT FROM
PRESENTING ERRONEOUS OPINION
OF WITNESS.
>> JUDGE CONSIDERED IT FACT,
EVIDENCE, HE SAID IT IS IN
EVIDENCE, I DON'T KNOW
WHETHER CORRECT OR NOT
CORRECT BUT IT IS IN EVIDENCE
AND EP ASKED THE JURY TO RELY
ON THE EVIDENCE, SO THE
JUDGE VIEWED IT AS EVIDENCE
THE JURY VIEWED IT AS
EVIDENCE, I DON'T DISAGREE
WITH YOUR PREMISE, IN FACT IN
JULIO ITSELF IT WAS NOT --
TESTIMONY THAT WAS IT WAS
FALSE TESTIMONY BUT IT WAS
NOT LIKE FRAUDULENT TESTIMONY
OR PERJURED TESTIMONY IT WAS
ONE STATE ATTORNEY FORGETTING
TO TELL ANOTHER STATE
ATTORNEY U.S. ATTORNEYS, THAT
THEY OFFERED A DEAL TO A
WILTES IN SO IT WAS MORE A
NEGLIGENT ISSUE AS OPPOSED TO
PURPOSELY, YOU KNOW RENDERING
FALLS TESTIMONY PURCHASEJERED
TESTIMONY NOT SAYING PERJURED
TESTIMONY SAYING CLEARLY A
FALSE STATEMENT IT IS PIN
RENDERED BY PERSON WHO WAS A
STATE ATTORNEY THAT THE JUDGE
AND THE JURY BOTH VIEWED AS
EVIDENCE.
NOW SHGS!!$$!!!!!!!!!!!!!!
NOW, I'M NOT -- I -- I DON'T
HAVE AN ANSWER DON'T KNOW
WHETHER I ANSWERED YOUR
QUESTION OR NOT.
>> THANK YOU TO THE BEST OF
YOUR ABILITY.
>> I'M TRYING TO.
IT WAS CLEAR THAT THE STATE
ATTORNEY IN THIS CASE, THE
FEATURE OF THE CASE, FROM
BEFORE VOIR DIRE STARTING
WITH MOTION N$$!!IN LIMINE, VOIR
DIRE SPEECH BY STATE ATTORNEY
TO VIN IRE AS WELL AS ALL THE
QUESTIONS THAT PEOPLE IN
FRONT OF EACH OTHER CLEAR HIS
PLAN TO MAKE SURE THAT JURY
UNDERSTOOD THAT IF THEY MADE
A LIFE RECOMMENDATION
MR. GORE COULD BE RELEASED IN
25 YEARS.
OR IN ABOUT TEN YEARS, FROM
THE RETRIAL, THE DATE THIS
WAS GOING ON THIS HAPPENED IN
1992, AND, THE CRIME OCCURRED
IN 1983.
SO THAT WILL BECAME A FEATURE
OF THE CASE, RIGHT FROM THE
BEGINNING AND ALL THE WAY
THROUGH.
AT THE FINAL ARGUMENT, STATE
ATTORNEY STOOD UP TOLD THE
JURY THAT THE DEFENSE LAWYER
WILL ARGUE TO YOU, THAT HE IS
GOING TO DIE IN PRISON HE
STILL A THERE FOREVER HE HAS
NO RIGHT TO MAKE THAT
ARGUMENT, OF COURSE HE DOES
HAVE THE RIGHT TO MAKE THAT
ARGUMENT -- NEVERTHELESS WE
HE REEMPHASIZING THE BUSINESS
THE ONLY HAD 25 HE ONLY HAD
TO SERVE 25 YEARS IF THEY
MADE A LIFE RECOMMENDATION.
THERE WAS JUROR ON THERE, WHO!!$$!!!!
WHOCOURT POINTED OUT -- IN
GORE CASE, WHO HEARD THIS
CASE TO THE END WHO HAD BEEN
ATTACKED AND RAPED BY A
PRISONER ON EARLY RELEASE SIX
YEARS OF A 20 YEAR CERTIFY
TENNIS HEARD THIS CASE, SHE
WAS ONE OF THE JUROR,
OBVIOUSLY PARTICIPATED WHEN
JUROR CANY CAME BACK WITH
QUESTIONS HOW LONG WOULD HE
HAVE TO SERVE STILL WANTED TO
KNOW THIS JOOIR HAD PROBLEMS,
THE JUDGE BELOW FOUND AS
MITIGATING CIRCUMSTANCE THAT
MR. GORE WAS MODEL PRISONER
IN FACT HAS BEEN THERE 23 #
YEARS NOW WITHOUT A DR.
AND, HE HAD BEEN AT THE TIME.
HE FUNCTIONING WELL IN PRISON
ENVIRONMENT I THINK, THE JURY
CONSIDERED THAT THEY WANTED
TO KNOW WHAT WAS GOING TO
HAPPEN HERE, AND OUR MY POINT
IS IT WAS ERROR NOT TO TELL
THEM THAT HE HAD TO SERVE 50
YEARS BEFORE HE COULD BE
CONSIDERED FOR PAROLE.
THAT IS A CONSTITUTIONAL
ARGUMENT ISSUE AND THAT IN
FACT, THE LAWYER SHOULD HAVE
AT LEAST INTERVIEWED HIS
WITNESS, TRIED TO DETERMINE
WHAT HE IS GOING TO SAY TO
BOTH JUROR.
>> I INSTRUCTION SAID HE
WOULD HAVE TO SERVE 50 YEARS
DIDN'T DO THAT THIS
INSTRUCTION SAID SERVE ALL
THIS HIS LIFE IF PRISONS THAT
IS FALSE STATEMENT PROPER FOR
THEED JUDGE TO DENY THAT I
DON'T I WILL CONCEDE THAT, UP
FRONT.
IN FACT, HIS MOTION IN LIMINE
THE SAME THING PROPER FOR THE
JUDGE TO DENY THAT HE SHOULD
HAVE BEEN ASKING FOR
INSTRUCTION THAT SAID HE
WOULD HAVE TO SERVE 50 YEARS,
HE COULD HAVE JUST AS EASILY,
GOTTEN TO CERTIFIED COP I'VE
JUDGMENT SENTENCE WATERFIELD
HAD PUBLISHED TO THE JURY WHO
-- TO SHOW HE ONLY GOT MAUN
SLAUGHTER GOT LESSER SENTENCE
DIDN'T NEED MR. STONE TO DO
THAT.
AND, HIS FAILURE, ALL THOSE
RECORD TO MY PIN POIN OPINION
AMOUNTS TO INEFFECTIVE
ASSISTANCE OF COUNSEL, THAT
IS BASICALLY MY ARGUE EXSOE
ARGUMENT EXCEPT I WOULD ALSO
LIKE TO POINT OUT EVEN THOUGH
HE ESPECIALLY AFTER JUSTICE
CANTERO'S EXCELLENT
EXPOSITION ON THE
NONRETROACTIVITY OF RING,
THAT NEVERTHELESS, EVEN UNDER
LOCKIT IT IS A POWERFUL
MITIGATOR RECOGNIZED
THROUGHOUT THE UNITED STATES
CASES IN STATES THAT HAVE
DEATH SENTENCE, THAT LIFE
WITHOUT PAROLE, OR LONG
MANDATORY PRISON TIMES IS A
POWERFUL MITIGATOR, IN THIS
CASE, EVEN UNDER LOCKETT OF
COURSE PREDATES THAT IS CAME
BACK FIRST TIME FOR
RESENTENCING UNDER LOCKETT,
THERE IS A PRECLUSIONER HAVE
FOR THE JURY TO HEAR THAT
MITIGATOR, THEY NEVER HEARD
THAT LITIGATOR, WHY?
BECAUSE THE ALL OF THIS.
>> COMBINATION OF HE VEJTS
BETWEEN STATE ATTORNEY OF
THEING LAWYER, MAKE ME -- THE
MISTAKES HE DID IN THAT
REGARD,!!$$!!!!!!!!!!!!
REGARD,AND THE JURY CANNOT
RENDER, CAN'T DO ITS JOB
CAN'T FUNCTION UNDER 6TH
AMENDMENT UNLESS IT
UNDERSTANDS WITH THE
RECOMMENDATION MEANS
RECOMMENDATION OF LIFE AND IN
THIS CASE UNDER OTHER OLD
STATUTE 25 YEARS BEFORE BEING
CONSIDERED FOR PAROLE,
BECAUSE OF THE OTHER 25 YEAR
MANDATORY SENTENCE, CONSIVE
TO THIS ONE, HAD TO SERVE THE
50 YEARS BEFORE IT COULD
RELEASED ON ANYTHING
REGARDLESS OF WHAT MR. STONE
TESTIFIED TO MY ANSWER TO
YOUR QUESTION CHIEF JUSTICE
THAT UNDER IN CONTEXT, HIS
ANSWER WAS FALSE.
--
>> WANT TO TALK ABOUT ANY
OTHER POINTS YOU ARE MOVING
NOT INTO YOUR REBUTTAL BUT --
TALK ABOUT ANY OF THE OTHER
POINTS?
>> I THINK THAT THE ONLY
OTHER POINT THAT I WOULD LIKE
TO ADDRESS IS THE EX PARTE
ISSUE, THERE WAS AFFIDAVIT
SIGNED BY THEE$$!! DEFENSE LAWYER,
MR. UDECHLT!!$$!!!!!!LL ACCOMPANIED THE
INITIAL MOTION 3.850 MOTION
THE AFFIDAVIT SAID THAT HE
DID NOT RECEIVE DID NOT
RECALL RECEIVING THE COPY --
>> THAT IS A BIG DIFFERENCE
ISN'T IT.
>> YES YES, I WANT TO BE
ACCURATE HE DID NOT RECALL
AND.
>> HE FILE DIDN'T RAUL
RECEIVING COPY.
>> DID THE STATE TESTIFY AND
THE EVIDENCE IN -- INDICATE
THAT A COPY WAS SENT?
>> THERE WAS A THE ONLY --
NO.
THE JUDGE FOUND IN HIS ORDER!!$$!!!!!!!!
ORDER -- THE MOTION DENIED
HUFF ORDER DENIED HEARING ON
THAT POINT, FOUND THAT HE
CAREFULLY CONSIDERED BOTH
SIDES THAT THE DOCUMENT HAD A
CCAT THE BOTTOM SHOWING IT
WILL HAD BEEN SENT.
>> UNDER OUR LAW, ISN'T IT A
VALID PRINCE$$!!IPLE OF FLORIDA
LAW THAT -- ONE THE ABSENCE
TESTIMONY AS TO -- I THE
ABSENCE OF SOMETHING DOES NOT
OVERKOEM!!$$!!!!!!!!!!!!!!
OVERCOMEPROOF OR EVIDENCE OF
THE AFFIRMATIVE OF THAT FOR
EXAMPLE, A TRAIN CROSSING IS,
DIDN'T HEAR A WHISTLE, DOES
NOT OVERCOME THE TESTIMONY OF
AN INDIVIDUAL SAYING I DID
HEAR THAT WHISTLE BLOW.
BECAUSE IT IS THE NEGATIVE OR
ABSENCE OF --
>> NO CERTIFICATE OF SERVICE.
>> THIS DOCUMENT WAS.
>> A ALERT WASN'T IT.
>> A ALERT WITH A MEMORANDUM
ATTACHED.
AND MEMORANDUM AT THE BOTTOM
OF THE A LETTER CCTO COUNSEL
BUT THERE USE NO CERTIFICATE
OF SERVICE.
THE DEFENSE ATTORNEY SAID HE
DID NOT KNOW THAT HE HAD THE
RIGHT TO SUBMIT HIS OWN
MEMORANDUM NO MEMORANDUM NO
DEFENSE MEMORANDUM WAS
SUBMITTED THEREFORE WE HAVE
CERTIFICATE OF SERVICE IT IS
A PLEADING, EVEN IF IT IS A
ALERT, IT IS A PLEADING.
AND DEATH CASES I THINK ULTRA
SENSITIVE TO THIS SHOULD HAVE
BEEN CERTIFICATE OF SERVICE
ON THERE, THERE WAS NOT
TLEERNGS WE HAVE CERTIFICATE
OF SERVICE IS TO PRECISELY --
DO AWAY WITH THE PROBLEM YOU
DESCRIBED WITH TRAIN WHISTLE
CERTIFICATE OF SERVICE IS
PRESUMPTION THAT IS TRUE AND
CORRECT THE C.C. IS NOT
SEVERITY SERVICE PARTICULAR
IS MY POINT.
AND THE OTHER THING WAS THAT
OF THE THREE MOTION S THAT!!$$!!!!!!!!!!!!S THAT
WERE THREE THINGS BROUGHT UP
IN THE FIRST EX PARTE MOTION,
TWO WERE SIGNIFICANT EVEN
THOUGH ONE CLEARLY
ADMINISTRATIVE THE MOTION TO
MOVING TO BACK TO THE JAIL,
WAS AD ADMINISTRATIVE MATTER
BUT THE POINT OF COUNSEL WHEN
THEY APPOINTED PUBLIC
DEFENDER PUBLIC DEFENDER HAD
A CONFLICT REPRESENTED THE
CODEFENDANT EARLIER DAYS --
CASE APPOINTED PUBLIC
DEFENDER EX PARTE THAT ISSUE
COULD HAVE BEEN RESL OFSHG
RESOLVED RIGHT THERE IF NOT
EX PARTE SENDING THE CASE FOR
PRETRIAL CONFERENCE IN SIX
DAYS, FROM THAT EX PARTE
HEARING, A CASE THAT
ULTIMATELY WENT TO TRIAL --
>> WASN'T EX PARTE HEARING IF
SUPPOSEDLY A TRANSMISSION --
OF AGGRAVATING MITIGATING
FACTORS, AND THAN HE REQUEST
FOR WAS THERE NOT, A MOTION
IN FEBRUARY, THAT DEALT WITH
APPOINTMENT OF COUNSEL THE
SETTING OF THE HEARING, AND
TRANSPORTATION OF THE
DEFENDANT.
>> CORRECT.
>> YES.
>> OKAY.
>> AND THEN AND THEN THERE IS
AN ORDER ENTERED SETTING A
PRETRIAL CONFERENCE IN SIX
DAYS, I MAINTAINED THAT
SETTING OF THE PRETRIAL
CONFERENCE AND APPOINTMENT OF
COUNSEL TURNED OUT TO HAVE TO
BE UNDONE BECAUSE THERE WAS
CONFLICT, SHOULD NOT HAVE
BEEN DONE IN ANY KIND OF EX
PARTE FASHION, SO YOU KNOW, I
ADMIT THAT IS NOT --
CONSTITUTIONAL POINT
NEVERTHELESS PART OF THE
WHOLE THE WHOLE ISSUE HERE.
>> THANK YOU, RESERVE MY TIME
FOR REBUTTAL.
>> OKAY.
MR. CAMPBELL.
.,,
.
>> GOOD MORNINGLESSLY
CAMPBELL MATE PLEASE THE
COURTLESSLY CAMPBELL ATTORNEY
GENERAL'S OFFICE ON BEHALF OF
THE STATE, EXCUSE ME.
WITH REGARD TO ISSUES ONE AND
I GUESS IT IS FIVE THE
INEFFECTIVENESS OF COUNSEL
FOR NOT HAVING DEPOSED
MR. STONE, IT APPEARS FROM
THIS ARGUMENT THAT WHAT
COUNSEL IS ASKING FOR IS FOR
THE TRIAL COURT TO HAVE
MISINFORMED THE JURY, AND
TOLD THE JURY THAT MR. GORE
WOULD NOT HAVE BEEN ELIGIBLE
FOR PAROLE.
AT THE MIN, YOU MIGHT HAVE
BEEN ELIGIBLE FOR PAROLE AT
50 YEARS.
MIGHT I POINT OUT THAT THE
DEFENSE IS THE ONE THAT
REFUSED TO ALLOW THE STATE TO
PUT ON ANY EVIDENCE ABOUT
MR. WATERFIELD'S TRIAL, AND
EXCUSE ME NOT MR. !!$$!!!!!!
MR. WATERFIELD'S TRIAL BUT
THE ADDITIONAL FIVE MURDERS
TO WHICH MR. GORE PLED.
THAT WOULD HAVE ALLOWED THE
DEFENSE TO THEN PLEAD THAT
THERE WOULD BE A MINIMUM OF
-- 50 YEARS IN PRISON.
WE ARE USING 50 YEARS HERE,
HOWEVER THAT 50 YEARS IS
QUITE CONFUSING.
IT IS FOR FIVE OTHER MURDERS
THAT CAME AFTERWARDS THERE
WERE PLED AFTERWARDS.
AND THAT'S WHERE THAT 50 #
YEARS COME IN.
-- COMES NCHLT WHAT THE.
COURT HAD BEFORE IT WERE THE
CONVICTIONS OF MR. GORE FOR
MURDER, AND FOR THE SEXUAL
BATTERIES AND KIDNAPPING IN
THAT PARTICULAR CASE.
AND IF THIS COURT READS THE
TRANSCRIPT IT IS CLEAR THAT
WHAT MR. STONE WAS TALKING
ABOUT WERE THE PAROLE
POSSIBILITIES FOR THE
KIDNAPPING AND SEXUAL BATTERY
WHICH HAD NO MINIMUM
MANDATORY AS THIS COURT FOUND
ON DIRECT APPEAL.
THIS COURT ALSO FOUND ON
DIRECT APPEAL, THAT THERE WAS
ABSOLUTELY NOTHING WRONG WITH
TELLING THE JURY AND IT WAS
PROPER TO TELL THE JURY THAT
THERE WAS A POSSIBILITY OF
PAROLE AFTER 25 YEARS BECAUSE
THAT IS THE LAW.
WHETHER MR. STONE WAS DEPOSED
OR NOT IS REALLY NOT THE
QUESTION.
IT IS CLEAR THAT THE INTENT
OF CALLING HIM BY THE DEFENSE
WAS TO SHOW THAT THERE WERE
OTHER CONVICTIONS AND THAT IT
ALLOWED THE DEFENSE TO THEN
ARGUE THAT THERE IS GOING TO
BE LONG PERIOD OF TIME IN
JAIL.
AND ALSO THAT MR. WATERFIELD
WAS EQUALLY CULPABLE PER
MR. STONE'S OPENING STATEMENT
OF MR. WATERFIELD'S TRIAL
THAT THERE WOULD BE DISPARATE
TREATMENT THIS COURT DEALT
WITH BOTH OF THOSE ISSUES ON
DIRECT APPEAL AND TO NOW
SUGGEST THAT THERE IS ANY
POSSIBILITY OF PREJUDICE
UNDER AN INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
SHOULDN'T BE ALLOWED TO
STAND.
ANY OTHER QUESTIONS ANY
QUESTIONS ON THAT?
>> I THINK WITH THE -- I SEE
HE IS ASSERTING THIS ARGUMENT
TWO WAYS ONE INEFFECTIVE
ASSISTANCE ARGUMENT THE OTHER
IS UND ER!!$$!!!!ER A GIG LEO KIND OF
ERROR APPROACHING IT TWO
DIFFERENT WAYS, SO ARE YOU
ASSERT!!$$!!!!!!!!!!
ASSERTING THAT HE IS TAKING
THE POSITION THAT AS A MATTER
OF LAW THE TIME THIS TRIAL
WAS GOING ON THAT THE PAROLE
WAS NOT AFTER 25 YEARS WAS
AFTER 50 YEARS AND THE
QUESTION IS DID THIS COURT
ALREADY LOOK AMOUNT THAT
ARGUMENT BEFORE AND HAS IT
ALREADY CONSIDERED IT I THINK
REALLY IS --
>> ABSOLUTELY.
THERE'S NO QUESTION.
BUT POINTS ONE AND TWO WERE
RAISED ON DIRECT APPEAL DEALT
WITH ON DIRECT APPEAL.
AND THE INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
FALLS RIGHT UNDER THAT,
BECAUSE THIS COURT HAS
ALREADY FOUND THAT THE JURY
WAS INSTRUCTED PROPERLY AND
THAT THERE WAS NO ERROR.
AND THEREFORE, THERE COULD BE
NO PREJUDICE AND THERE WILL
CERTAINLY ISN'T ANY
INEFFECTIVENESS THERE IS NO
DEFICIENCY IN WHAT MR. !!$$!!!!!!
MR. NICKERSON DID WITH REGARD
TO MR. SNOWE.
>> WHAT'S THE STORY ABOUT IT
APPEARS THAT THE ATTORNEY
THAT WAS GIVEN PRIMARY
RESPONSIBILITY THREE YEARS
OUT OF LAW SCHOOL.
THREE YEAR LAWYER.
>> MR. YOU WOULD SNOOEL
MR. NICKERSON.
>>IES WHAT'S -- THAT IS IS A
LOOK THROUGH THIS TROUBLED ME
SOME THAT EVERYONE DEFERRED
TO A LAWYER APPARENTLY NEVER
HAD DONE ONE OF THESE ALL OF
THE SUDDEN THE PERSON IS NOW
DISAPPEAREDOR IS -- WHAT'S
THE STATUS OF THE RECORD WITH
REGARD TO THIS OTHER LAWYER
HAVE A WAS REALLY THE LAWYER
IN THE CASE APPARENTLY?
>> FROM THE EVIDENTIARY
HEARING DISCUSSION THAT
MR. UDALL HAD ON THIS
SUBJECT, HE UNDERSTOOD
MR. NICKERSON WAS
WELL-RESPECTED HAD DONE MANY,
MANY OF THESE CASES HAD DONE
A LOT OF THE POSTCONVICTION
AT THE TIME.
THAT HE WAS SOMEONE WHO IS
VERY BRIGHT AND UNDERSTOOD
CAN THE SYSTEM HE KNEW WITH
THE WAS GOING ON, IN CAPITAL
LITIGATION.
>> THIS DISP PROVEN DURING
THE HEARING BELOW?
>> NO.
THERE WAS NO MR. NICKERSON
WASN'T FOUND -- I MEAN --
>> DO WE KNOW WHY?
>> NO.
>> ANY DISCUSSION IN THE
RECORD ANYTHING IN THE RECORD
ABOUT THAT.
>> THE TRIAL COURT ACTUALLY
SAYS THAT IT IS JUST OE!!$$!!-- THAT
THERE WAS REALLY NOTHING
THERE WAS NO EVIDENCE
PRESENTED ON THAT PARTICULAR
MATTER, AND THAT -- JUST THAT
THEY COULDN'T FIND HIM.
>> THE JUDGE NEVER SAID WHERE
IS NICKERSON?
>> I DON'T BELIEVE HE ASKED
SPECIFICALLY WHERE HE I, BUT
THERE WAS -- WE NEED
ADDITIONAL TIME OR ANYTHING
LIKE THAT JUST COULDN'T FIND
HIM, I BELIEVE MR. UDALL MAY
HAVE MINGE SOMETHING THAT HE
WAS IN HE MENTIONED THAT HE
WAS IN GEORGIA WE DON'T HAVE
ANYTHING FURTH ON THAT AS FAR
AS HAVE I ANSWERED ALL YOUR
QUESTIONS?
>> HOLD ON.
>> AND AS FAR AS EX PARTE,
THE ONLY WAY TO GET THE
DEFENDANT COUNSEL WOULD BE TO
PUT THE COURT ON IN TIS THE
DEFENDANT WAS COME BAK$$!!CK HE
FROM FEDERAL COURT HAD TO
HAVE COUNSEL.
SO UNLESS THE COURT HAS ANY
OTHER QUESTIONS?
I WILL ASK THAT YOU AFFIRM
THE DENIAL OF POSTCONVICTION
RELEASE AND ALSO DENYING
HABEAS REQUEST.
>> MATE PLEASE THE COURT.
AT THE HUFF HEARING BELOW, I
STOOD UP PUT THIS IN THE
BRIEF PART OF THE RECORD
INFORMED THE COURT THAT I
COULD NOT FIND MR. NICKERSON
LOOKED FOR HIM HAD MY
INVESTIGATOR LOOKING FOR HIM
HE WAS NO LONGER A MEMBER OF
THE FLORIDA BAR AT 3$$8 --
3.850 HEARING I INTRODUCED
HIS GRIEVESANCE RESULTS THE
PROCESS OF GRIEVANCE GOING ON
AT THE SAME TIME HE WAS
DEFEND THIS CASE HE WAS NEVER
APPOINTED TO REPRESENT
MR. GORE, HE WAS UNPAID HE
FILED A MOTION TO BE PAID
THAT WAS MOTION WAS DENIED.
IN THIS CASE.
AND PART OF MY ARGUMENT ON
THEE$$!!!! IN INEFFECTIVE ASSISTANCE
OF COUNSEL UDALL, WHO WAS
APPOINTED PAID IMPROPERLY
DEFERRED TO NICKERSON
SHOULDN'T HAVE DONE THAT,
THAT IN ITSELF INEFFECTIVE
ALLOWING NICKERSON TO MAKE
ALL ZOOEGZS YOU ARE RIGHT OF
I DID INTRODUCE AT 3.850
HEARING HIS BAR THAT HE HAD
BEEN A MEMBER OF THE BAR
SINCE 1989 #, THREE YEARS
PRIOR TO THIS HEARING.
>> DON'T YOU ASSUMING ALL
THAT IS CORRECT, WHICH IS
THAT HE WAS A YOUNG LAWYER,
HAD DISCIPLINE PROBLEMS, OF
YOU TO CONNECT THAT UP WITH A
PARTICULAR DEFICIENCY IN
PERFORMANCE, SO WHAT DOES
THAT GO TO ONE SPECIFIC ISSUE
OR IS THAT JUST A GENERAL
OBSERVATION YOU'VE BEEN VERY
SPECIFIC ABOUT THIS ISSUE ON
THE PAROLE.
AS FAR AS GENERAL
INEFFECTIVENESS AND THE
PENALTY PHASE THERE IS ARE A
LOT OF THE THINGS IN THERE
ARES BUT, NOTHING THAT YOU
REALLY CAN SAY ALL RIGHT NOW
I CAN SEEN THIS HAPPENED TO
SOMEBODY ABSOLUTELY DIDN'T
KNOW WHAT HE WHAT THEY ARE
DOING.
>> ONLY LET ME JUST RECITE
ITEMS THAT I THINK ARE
SPECIFIC ITEMS BEEN --
RELATING TO THE THAT ISSUES
WE HAVE RACED, THE TACTICAL
DECISIONS TO CALL THE STATE
ATTORNEY AS A WITNESSES IN --
HOSTILE WITNESS THAT DECISION
TACTICAL DECISIONS NORMALLY
IMMUNE FROM HINDSIGHT,
ANALYSIS, OF INEFFECTIVE
ASSISTANCE OF COUNSEL STILL
HAVE TO MAKE SOME SENSE THERE
HAS TO BE REASON ABILITY!!$$!!!!!!!!!!!!!!ABILITY TO
THEM THEY HAVE TO BE VIEWED
IN SOME LIGHT, TO DETERMINE
WHEN REASONABLE DECISION AT
ALL, NOT INTERVIEWING HIM OR
DEPOSING HIM OR TRYING TO
TALK TO HIM OR ANYTHING AFTER
SUBPOENA!!$$!!!!!!!!!!!!!!
SUBPOENAING HIM CALLING HIM
AS WITNESS THAT IS A YOUNG
LAWYER ERROR I MEAN I DON'T
KNOW WHY -- WHERE AT ELSE TO
SAY IT.
YOU DON'T DO THAT.
THAT YOU GOT TO NO WITH THE
YOUR WETTES IN IS GOING TO
SAY IN DEATH STATION
ESPECIALLY WHEN HOSTILE TO
YOU YOU KNOW HE IS NOT GOING
TO BE YOUR FRIEND SEEMS TO ME
TO BE BASIC TO NOT OBJECT
FROMSOR'S QUESTION THAT WAS
OBJECTIONABLE BECAUSE IT WAS
OPINION JUSTICE CANTERO AS
WELL AS OBJECTIONABLE FACT A
STATEMENT OF LAW NOT A FACT
AND THE COURT SHOULD HAVE
OBJECTED TO THAT. !!$$!!
>> DID NOT CALL A WITNESS,
COULD CLEARLY STATE HE WOULD
HAVE TO SERVE 50 # YEARS
BEFORE HE WOULD BE ELIGIBLE
FOR PAROLE ON ANYTHING.
>> ON THAT ONE SHGS!!$$!!!!!!!!, WHAT A ABOUT
THE FACT THAT YOU WANTED KEPT
OUT ABOUT THESE OTHER MURDERS!!$$!!!!!!!!!!!!
MURDERS.
>> SURE I THINK THE COURT
EASILY COULD HAVE KEPT OUT
THE FACT OF THE OTHER MURDERS
BUT NEVERTHELESS, CRAFTED A
VERY SIMPLE JURY INSTRUCTION
OR STATEMENT TO THE JURY SAID
IN THIS CASE, THE
RECOMMENDATION OF LIFE MEANS
HE WOULD HAVE TO SERVE 50
YEARS BEFORE HE COULD BE
CONSIDERED FOR PAROLE
WOULDN'T HAVE TO TELL HIM
FIVE OTHER MURDERS, BUT, THAT
IS WHAT THEY ASKED CAN THE
QUESTION, AND THAT IS WHAT
SHOULD HAVE BEEN THE ANSWER.
>> CLAURNFY SOMETHING IN THE
-- SAYS THAT NICKERSON WAS
NOT PRESENTED AS WITNESS THEN
THE TRIAL COURT WRITES THERE
WAS NO EXPLANATION AS TO WHY
AND OR NO EVIDENCE THAT --
WHAT AESTS WERE MADE TO
SECURE --
>> YES IS, DIDN'T --
REITERATE WAIT HAWKED TO
JUDGE ABOUT AT HUFF HEARING
AT THE HUFF HEARING I DID
ADVICE THE CORT THAT I HAVE
HAD NOT BEEN ABLE TO FIND
MR. NICKERSON THAT WAS JUST A
COUPLE MONTHS PRIOR TO
EVIDENTIARY HEARING IN THIS
CASE BUT I DID NOT REITERATE
THAT AT THE EVIDENTIARY
HEARING AT THE EVIDENTIARY
HEARING HEARINGS SZS 50IS SZ
HEARINGS SZS 50IS SZ