MARSHAL: ALL RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT IS NOW IN SESSION.ALL W HO HAVE CAUSE TO PL EA, DRAW NEAR, GIVE ATTENT ION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDAAND THIS HONORA BLE COUR T. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATED.
CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN, AND WELCOME T O THE FLORIDA SUPREME COURT . THE FI RST C ASE O N THIS MORNING'S DOCK ET IS ENGLAND VERSUS THE STATE OF FLORIDA. MR. SC HER , ARE YOU READY?
YES, YOUR HONOR. GOOD MOR NING. MAY IT PLEASE THE COURT. I AM T O DD SCHER ON BE HAL F OF THE APPELLANT IN THIS CASE , RICHARD ENGLAND, THIS CASE BEFORE THE COURT ON DIRECT APPEAL FROM CONVICTION ON TWO COUNTS ON THE INDICTMENT OF FIRST-DEGREE MURDER OF THE VI CTIM HO WARD WETHERELL AND COUNT TWO OF ARMED ROBBERY WITH A DEAD LY WEAPON. THE CRIME IN THIS CASE OCCURRED IN J UNE 25 OF 2001. MR. EN GLAND WASN' T IND ICTED UNTIL NOVEMBER OF 2003. FOLLOWING A JURY TRIAL AND A PENALTY PHASE, THE JURY RETURNED 8-TO -4 DE AT H RECOMMENDATION AND AFTER A SPENCER HEARING, THE COURT ENTERED FINDINGS OF FACT --
CHIEF JUSTICE: A S YOU KNOW WE ARE VERY FAMILIARWITH THE FACTS. YOU HAVE MANY POINTS. DO YOU WA NT TO FOCUS O N WHICH PO INTS YOU ARE GOING TO RAISE?
CERTAINLY. WITH TIME PERMITTED I AM GOING TO BE BRIEFLY ARGUING ONE IN THE BRIEF AND THEN ARGUMENT TH REE W HICH RE LATES TO AUTOPSY I PHOTOGRAPHS AND THEN THE PENA LTY PHASE ISSUES ARG UMENT 7 REGARDING HEINOUS ATROCIOUS AND CRUEL AND ARGUMENTS 11 AND 1 3 , BOTH OF WH ICH IN S OME FASHION OVERLAP. THEY RELATE TO THE LO WER COURT'S FINDING OF EQUAL CULPABILITY BET WEEN MR . ENGLAND AND THE CODEFENDANT MICHAEL JACKSON AND, A LS O , THE ISSUE OF PROPORTIONAL ITY. ARGUMENT ONE, YOUR HONOR , IS AN ARGUMENT OF FUNDAMENTAL ERROR. AS I ACKNOWLEDGED IN THE BRIEF AND C ERTAINLY IN THE REPLY BRIEF , WE DO ACKNOWLEDGE THERE WAS NO CONTEMPORANEOUS OBJECTION TOTHE TESTIMONY THAT IS AT ISSUE HERE. WHAT OCCURRED IS THAT MR . ENGLAND 'S CODEFENDANT MICHAEL JACKSON, TESTIF IED AS A DEFENSE WITNESS IN THE DEFENSE CASE-IN-CHIEF, TAKING FULL RESPONSIBILITY FOR THE MURDER OF MR. WETHERELL IN THIS CASE. WHEN MR . JACKSON WAS BEING CROSS-EXAMINED BY THE PROSECUTOR AND ACTUALLY BEFORE I GE T TO THAT LET ME BACK UP , TO PRET RIAL , THERE ACTUALLY HAD BE EN A MOTION IN L IMINE FILED BY THE DEFENSE, TO PRECLUDE THE S TATE FROM PRESE NTING ANY EVIDENCE OR TESTIMONY REGARDING MR. ENGLAND 'S PRIOR CONVICTION, WHICH WAS WHEN HE WAS A JUVE NILE IN 1987 FOR SECOND-DEGREEMURDER. THAT MOTION IN LI MINE WAS WAS GRANTED. DURING THE STATE'SCROSS-EXAMINATION OF MR. JACKSON, THE THE PROSECUTOR WAS QUESTIONING MR . JACKSON REGARDING CHANGES IN HIS , FROM HIS PRIOR STATES T O HIS TRIAL TESTIMONY , AND -- FROM HIS PRIOR STATEMENTS TO HIS TRIAL TESTIMONY, AND ON E OF THE QUESTIONS OF MR. JACKSON WAS AS TO STATEMENT OF MR . SAMUEL JACKSON IN WA LTON COUNTY.
WHAT WAS THE ACTUAL STATEMENT?
THE ACTUAL STA TEMENT WAS WHERE THE PROSECUTOR IS ASKING M ICHAEL JACKSON AB OUT HIS DISCUSSIONS WITH HIS BROTHER. MICHAEL JACKSON TESTIFIEDTHAT HE TO LD HIS BR OTHER T O,QUOTE , P UT IT OFF ON RICH . RICH IS RI CHARD ENGL AND. HE HAS AL READY GO T A MU RDER CHARGE. YOU WILL GET OFF EASY. NOW , ONE OF THE ISS UES THAT THE STATE HAS BROUGHT UP HERE, IS PERHAPS THE JURY COULD HAVE INFERRED THAT THIS TESTIMONY RELATED --
WHEN WAS THE STATEMENT MADE? HAD THE DEFENDANTS ALREADY BEEN ARRE STED AT THAT POINT?
NO.NO. THIS CONVERSATION OCCURRED IN WALTON COUN TY, B E FORE , WELL, MR. ENGLAND WAS , I BELIEVE AT THIS POINT, H E MAY HAVE BEEN IN CUST ODY BUT ON AN UN RELATED MA TTER. HE HAD NOT BEEP FOR MALLY ARRESTED -- HE HAD NOT BEEN FORMALLY ARR ESTED AND INDICTED UNTIL MUCH LATE R, AND THAT IS WH Y THE CONTEXT AND THE TIMING OF T HESTATEMENT IS IMPORTANT. WHAT I THINK IN ORDER TO DEBUNK THE STATE'S SPECULATION THAT MI CHAEL JACKSON WAS REFERRING TO THE JURY THE PRE VIOUS MURDER CHARGES , BECAUSE W H EN YOU READ THE TESTIMONY AS TO WHEN IT WAS GIVEN , IT REFERS BACK TO THE TIME THAT MICHAEL AND S AMUEL JACKSON WERE TALKING IN WALTON COUNTY AND WHEN MICHAEL JACKSON WAS EXPLAINING TO SAMUEL JACKSON WHAT, IN FACT , OCCURRED, AND MICHAEL JACKSON TESTIF IED AT THIS TRIAL THAT HE HAD TOLD HIS BROTHER PUT IT OFF ON RICH. HE HAS ALRE ADY GOT A MUR DER CHARGE, SO IT WILL BE EASY , MEANING IF THE POLICE EVER TALK TO SA MUEL, JUST T ELL THEM THAT RICHARD DI D IT ALL DESPITE THE FACT THAT MICHAEL JACKSON WAS, OF COURSE, NOW TESTIF YING T HAT HE, IN FACT, DID IT ALL A NDNONE OF IT MR. ENGLAND .
> WE A GREE THAT WH AT YOU ARE DISCUSSING WAS DISCUS SED NOT WITH THE WILTNESS ON THE STAND OR BY COUN SEL IN T HEIR OPENING STATEMENTS OR CLOSING ARGUMENTS?
CORRECT. IT WASN'T SOMETHING THAT WAS CERTAINLY HIGHLIGHTED BY T HESTATE.THE ISSUE , AGAIN, THERE WAS NO CONTEMPORANEOUSOBJECTION.THE ISSUE DID COME UP , HOWEVER , DURING THE S PENCER HEARING , WHERE MR. ENGLAND , HIMSELF, IT WAS AN ISSUE , A WITNESS THAT TESTIFIED A T THE SP ENCER HEARING, AND SOME OTHER ISSUES AB OUT MR . ENGLAND AND HIS COMPLAINTS ABOUT TRIAL COUNSEL CAME UP , AND ONE OF THE POINTS T HAT MR. ENGLAND BROUGHT TO THE JUDGE'S ATTENTION WAS T HEFACT THAT MR. KEATING OF NEVER OBJECTED TO THIS BLATANTLY PREJUDICIAL TESTIMONY WHICH IN FACT HAD BEEN THE SUBJECT OF THE PRETRIAL ORDER IN LIMINE , AND SO THERE WAS DISC USSION AND ELABORATION AS TO T HEFACT THAT THERE HADN'T BEEN AN OBJECTION. THE PROSECUTOR INDI CATED HE DIDN'T EVEN REME MBER IT BEING SAID . MR . K EATING CERTAI NLY REMEMBERED IT BEING SAID. HE CLAIME D THAT HE HAD SOME SORT OF ROPE FOR NOT --
HOW ABOUT FO CUSING, Y OUARE TRYING TO MAKE AN ARGUMENT HERE OF FUNDAMENTAL ERROR.
CORRECT.
SO YOU CONCEDED , SO WH ATWE THINK ABOUT FUNDAMENTALERROR IS LIKE THE WITNESS STANDING UP IN THE WITNESS CHAIR AND SA YING , AND I, ALSO, WANT EVERYBODY TO KNOW , THAT THIS F ELLOW OVER HERE COMMITTED A PREV IOUS MURDER.
CORRECT.
AND THEREFORE Y OUSHOULDN'T HAVE ANY DOUBT IN CONVICTING HIM OF THIS MURDER.
CORRECT.
AND EVER YBODY IS STUNNED. SO THERE , AT ONE E N D OF THE SPECTRUM, WE HAVE SOMETHING , PERHAPS, THAT WE W OULD CATEGORIZE AS FUNDAMENTALERROR, YOU KNOW, THAT THAT IS JUST A DYE OR A POISON THAT IS PUT IN , AND THERE HAD BEEN AN ORDER THAT SPECIFICALLY, NOW , CONT RAST THAT WITH WHAT OCCURRED HERE , WHEREAS ONE OF THE PREVIOUS QUESTIONS INDICATES THIS OCCURRED . THE BUDDY WASN'T MENT IONED AT ANY OTHER TIM E OTHER T HAN WHAT YOU JUSTAL ALLUDED TO. HOW CAN YOU CONV INCE -- THAN WHAT YOU JUST LE WDED TO. HOW CAN YOU -- WHAT YOU JUST AL ALLUDED TO. HOW CAN YOU CONVINCE US , FUNDAMENTAL EVIDENCE IN POINT OF T RIAL. I AM HAVING TROU BLE READ ING THE TRANSCRIPT OF IT. IT AL MOST GO ES AND DISAPPEARS, SO HELP US.
SURE. I THINK A LOT OF T IMES WITH FUNDAMENTAL E RROR BECAUSETHERE IS NO OBJECTION, THESE THINGS JUST OFTEN SORT OF APPEAR ON THE RECORD, AND BECAUSE THERE IS NO OBJECTION, THERE IS NO DEVELOPMENT OF THE ISSUE I N TERMS OF SHOWING AT THE TIME HOW IMPORTANT THIS WAS. WHAT I THINK WE HAVE HERE NUMBER ONE, IS THAT CL EA RLY IT WAS AN ISSUE THAT WAS IMPORTANT TO THE DE FENSE, BECAUSE THERE HAD BEEN A N ORDER IN LIMINE PRI OR TO TRIAL TO NOT HAVE THIS TYPE OF EVIDENCE INTRODUCED, A NDI THINK IN THE CASES THAT I CITED IN THE BRIEF , ONE O F THE MOST BR IDGE ADDITIONAL TYPES OF EVIDENCE OR INFORMATION THAT CAN B E BROUGHT OUT IN FRONT FRONT OF A JURY, CERT AINLY IN A CRIMINAL CASE , IN A CAP ITAL CASE HAD, NO LESS, IS THE FACT THAT THE DEFENDANT HAS A PRIOR CONVICTION, AND H ERE WE HAVE GOT A PRIOR CONVICTION FOR A N OTHER MURDER . WHICH MAK ES IT EVEN WO RSE, AND I DON'T THINK MY READING OF THE FUNDAMENTAL ERROR CASE LAW, I DON'T BE LIEVE , SUGGESTS, THAT THERE HAS TO BE SOME SORT O F JAW -DROPPING INCIDENT.
WHAT WERE THE WORDS USED BY THE WITNESS ? ANOTHER WORDS USED BY THE WITNESS WERE , THE QUESTION TO MR. JACKSON BY THE PROSECUTOR WAS, D O YOU REMEMBER TE LLING YOUR BROTHER THAT, AND THE ANSWER IS PUT IT OFF ON RICH. HE HAS ALREADY GOT A MURDER CHA RGE.YOU WILL GET OFF EA SY.
CHIEF JUST ICE: THAT WAS A SPONTANEOUS, I MEAN , THIS WASN'T A SITUATION WHERE THE PROSECUTOR INTENTIONALLY APPEARS TO BE VIOLATING A MOTION IN LIMINE. IF YOU WANT TO READ T HEQUESTION BEFORE T.
THE QUESTION BEFORE IT IS DO YOU RE MEMBER TELLING YOUR BROTHER THAT? CERTAINLY, YEAH, I MEAN,THERE IS NO INDICA TION, AGAIN, BECAUSE THERE WASN'T ANY --
CHIEF JUSTICE: DO YOU REMEMBER TELLING YOUR BROTHER THAT WHAT? WHAT WAS THE QUESTION BEFORE IT?
THE QUESTION, THE COLORADO QUESTION BEFORE IT -- THE COLLOQUY BEFORE IT RELATES TO WHAT MICHAEL TOLD SAMUEL JACKSON ABOUT HIS O WN INVOLVEMENT IN THE MURDER,BECAUSE THE STOR IES KEPT CHANGING BACK AND FORTH, ANDSO THE PROSECUTOR WAS TRYING TO IMPEACH MICHAEL JACKSON'S TRIAL TESTIMONY HERE THAT MR. ENGLAND HAD NO THING TO DO WITH IT BECA USE HE HAD I N FACT TOLD HIS BROTHER AND HIS BROTHER HAD TESTIFIED TO OTHER STATEME NTS. CERTAINLY I DON'T RECALL ANYTHING IN THE FUNDAMENTAL ERROR JURISPRUDENCE INDICATING IT HAS GOT TO BE AN INTENTIONAL VIOL ATION .
CHIEF JUSTICE: WHAT WE ARE TRYING TO DO WHE N YOU HAVE A WHOL E TRIAL , T HIS KIND OF S LID BY OR WAS HIGHLIGHTED , THE FACT THAT THE PROSEC UTOR DO ESN'T CONTINUE TO BRING IT UP. IT IS NOT IN THE CLOS INGS ARGUMENT. IT IS SOMETHING THAT WE DO, AS YOU KNOW FROM THE CASES. WE LO OK AT WAS IT BROU GHT UP IN CLOSING ARGUME NT? WAS IT WROUGHT UP -- BROUGHTUP AND HIGHLI GHTED IN SOME OTHER WAY?
SURE.
CHIEF JUSTICE: I THINK YOU PORTRAYED THAT ISSUE AS WELL AS YOU CAN FOR NOW. DO YOU WANT TO GO ON TO THE AUTOPSY PHOTOGRAPHS?
YES ARGUMENT THREE TR OLTS THE GRUESOME AND INFLAMMATORY AND PREJU DICIAL PHOTOGRAPHS. I THINK THE COURT IN OCT OBER OR AT LE AST BEFORE NOW HAD REQUESTED SOME OF T HESEPHOTOGRAPHS THAT WERE IN QUESTION. THEY WERE BLOWN UP ON THE BIG PO STER BO ARDS , AND MY READING OF THE RECORD INDICATES THAT IN SOME EXHIBITS THERE WERE THREE PHOTOGRAPHS AS PART OF O NEEXHIBIT AND IN SOME CASES THERE WERE FOUR PHOTOGRAPHS THAT WERE MADE A PART OF ONE EXHIBIT.THERE WAS EXTENSIVE PRE TRIAL LITIGATION ABOU T THE ADMISSION OF THE AUTOPSYPHOTOGRAPHS.THERE WAS A HEARING.THE COURT DID GO THROUGH A LLOF THE PHOTOGRAPHS AND ISSUED ITS RULINGS. TRIAL COUNSEL THEN OBJ ECTED DURING THE TESTIMON Y OF THE MED ICAL EXAMINER , WITH RESPECT TO THE SPECIFI C PHOTOGRAPHS THAT WE A REDISCUSSING ON APPEAL , AND THE SPECIFIC EXHIBI TS THAT WE ARE TALKING ABOUT WHICH I MENTIONED IN THE BRIEF, ARE EXHIBITS 16 AND 17 , W HICH ARE TWO PHOTOGRAPHS OR TWO EXHIBITS COMP RISING PHOTOGRAPHS TAKEN F ROM THE CRIME SCENE OF THE VICTIM.THE VICTIM WAS FOU ND A WEEK AFTER HE DIED , IN A PRETTY BADLY DECOMPOSED STATE IN THE BATHROOM TUB -- IN THE BATHTUB, I BEL IEVE COVE RED WITH TOWELS AND A PLASTIC SHEET . EXHIBITS 16 AND 17 ARE FROM THE C RIME SC ENE AND EXHIBITS 57, 58 AND 59 DEPICT THE VICTIM DURING THE AUTOPSY AND EACH OF THE PICT URES DEPICTED THE VICTIM'S B O DY IN THE AUTOPSY. PRIOR THAT THE ISSUE , THERE WAS ONE RAISED IN THE BRIEF ABOUT WHETHER OR NOT THIS HAD BEEN ADEQUATELY PRESERVED NCHT MY RE PLY BRIEF, I BELIEVE I FU LLY ADDRESSED WHAT I BELIEVE TO BE THE ISSUE WAS SUFFICIENTLY PRESER VED, BUT PRIOR TO THE ARGUMENT , OPPOSING COUNSEL AND I WERE TALK. APPARENTLY THIS COURT RECENTLY APPR OVED A RULE IMPLEMENTING 90.104-B FLORIDA STATUTE , WHICH APPARENTLY I HAVEN'T REA D IT AND I WILL, AND IF I THINK IT IS IMPORTANT TO SUPPLEMENT, I WILL , IMPLEMENTS THIS PROVISIONWHICH SAYS THAT --
IT DOE SN'T SEEMINGLY APPLY HERE, DOES IT?
I AM SORRY?
IT DOESN'T SEEM INGLY APPLY HERE, DOES IT?
ALL I UNDERSTAND, IT SAYS --
HOW ABOUT JUMP ING ON THE GRUESOMENESS OF THE, WE HAVE A PRETTY, I DON'T KNOW WHETHER YOU WOULD CALL IT LIBERAL OR, THE RULE IS BUT A PRETTY BROAD RULE , AS FAR AS ALLOWING THE ADMIS SION BY TRIAL JU DGE S , IF VIRTUALLY ANY RELEVANCE I CAN BE DEMONSTRATED. -- RELEVANCY CAN BE DEMONSTRATED. ISN'T THAT A FAIR STATEMEN T?
RELEVANCY IS P ART OF T HEANALYSIS, BUT THIS COURT HAS , ALSO, HE LD THAT RELEVANCY IS NOT A CARTE BLAN CHE FOR THE COURT TO ADMIT FOR THE JURY TO VI EW , AUTOPSY PHOTOGRAPHSTHAT ARE UN DULY PREJU DICIAL AND GRU SMOOCHLT WHAT WAS THE RELY SANS -- GR UESOME .
WHAT WAS THE RELEVANCY IN THE TRIAL COURT ADMI TTING THESE PHOTOGRAPHS?
THE STATEMENT AS THEY ALWAYS MAKE, THAT T HEY WILL ASSIST THE M EDICAL EXAMINER 'S TESTIMONY.
CHIEF JUSTICE: DID THE JUDGE LET ALL OF THE PHOTOGRAPHS IN? DID THE JUDGE MAKE DETERMINATION THAT IS THERE WAS A LIMITED NUMBER, GIVE US --
I BELIEVE MY RECOLLECTION OF THE PRETRIAL HEARING IS THAT THE STATE CE RTAINLY HAD MORE AUT OPSY PHOTOGRAPHS AND THAT THE JUDGE DID ALLOW IN ONLY A CERTAIN NU MBER OF THEM, SO CERTAINLY THE JUDGE DIDN'T SAY DO WHATEVER YOU WANT TO, BUT --
CHIEF JUSTICE: THE THING THAT DISTINGUISHES THIS IS THE FACT THAT THERE WAS A DECOMPOSING STATE, SO T HAT MAKES THEM MORE GRUESO ME, BUT IS THERE ANY WAY, REALLY , ONCE YOU ARE TRYING TO S HOW THINGS LIKE DEFENS IVE WOU NDS, THE MANNER AND METHOD OF THE MURDER, BECAUSE ONE OF THE THINGS IS YOU CHALLENGE HA C, SO KNOWING THERE ARE DEFENSIVE WOUND S IS RELEVANT. IS THERE ANY WAY TO , REALLY , SEPARATE THE FACT THAT THE BODY IS DECOM POSING , FROM THE RELEVANCE OF THE S HOWING THE METHOD AND MANNER OF T HEINJURIES?
WELL , I THINK IN A CASE WHERE IT IS AN ISSUE THAT IS CONTESTED, IF THERE IS AN ISSUE ABOUT WHET HER THE VICTIM HAD DEFENSIVE WOUNDS , IF THERE IS AN ISSUE ABOUTTHE MANNER OF DEATH , IF THERE IS A ISSUE ABOUT HOWLONG THE VICTIM HAD - -
CHIEF JUSTICE: BUT Y OUSAID, AS FAR AS HAC, THAT CERTAINLY THE FACT THERE IS DEFENSIVE WUPDZ WOULD MAK E IT RELEVANT -- DEFENSIVE WOUNDS WOULD MAKE IT RELEVANT, BUT --
BUT IT WASN'T CONTESTED , AND MY POINT IS T HE FACT THAT THE VICTIM HAD DEFENSIVE WOUNDS WASN'T CONTESTED, SO THERE IS NO REASON TO PR AYED EXTREM ELY GRUESOME - - REA SON T O PA RADE EXTREMELY GRUE SOME AUTOPSY PHOTOGRAPHS. THE JURY WAS G IVEN V ER Y GRAPHIC DESCRIPTIONS OF WHAT THE VICTIM LOOKED LIKE. THEY DESCRIBED THE COMMITTEE COMPOSITION PHOTOGRAPHS. THE VICTIM WAS BLO ATING , THE BODY WAS BREA KING DO WN , BODY FLUIDS WEEPING AND OO ZING , A GREENISH BROWN DISCOLOR ATION FROM DECOMPOSITION. THE SKIN WAS SLOU GHING OF F. YELLOW WA XY THINGS THAT WERE POST-MORTEM ABRA SIONS AND A LOT OF THESE EFF ECTS OF DECOMPOSITION WERE OBVIOUSLY POST-MORTEM, SO THINGS THAT HAPPENED TO THE BODY POST-MORTEM ARE NOT RELEVANT AT ALL, EVEN TO HE INOUS , ATROCIOUS AND C RUEL .
HOW EXTENSIVELY DID THE MEDICAL EXAM INER RELY O N THESE PHOTOGRAPHS?
I AM SORRY .
HOW EXTENSIVE LY DID THE MEDICAL EXAMINER RELY 'TH ESE PHOTOGRAPHS?
I THINK WHEN THE ME DICAL EXAMINER GOES ON FOR PA GES AND PAGES ABOUT WHAT EACH PHOTOGRAPH DEPICTS T WASN'T THEY SHOW HIM SOME PICT URES AND HE MOVES O N.THE LANGUAGE WAS V ERY GRAPH IC. I AM SURE HE WAS POINTI NG TO THE PO STER BOARD-SIZED PHOTOGRAPHS.THAT IS ANOTHER ISSUE HERE IS WE DON'T HAVE 8 BUY 1 0S OR SMALLER PHOTOGRAPHS. -- 8 X 10S OR SMA LLER PHOTOGRAPHS.THEY HAD TO BE ON A POSTER BOARD. THE PROSECUTOR INDICATEDTHAT HE WAS APOLOGIZING TO THE JURY FOR HAVING TO SHOW THESE PHOTOGRAPHS AGAIN, BUT HE PARADED THEM OUT D URING THE ARGUMENT TO S HOW TO THE JURY, TO CONVINCE THAT THE MURDER WAS HEINOUS , ATROCIOUS AND CR UEL.
DID THE PROSECUTOR USE THE PHOTOGRAPHS SUBSEQUENTLY , FOR INSTANCE, IN FINAL ARGUMENT?
AT THE PENALTY PHAS E, HE DID. I DON'T RE CALL , OFF THE TOP OF MY HEAD, TO BE HON EST WITH THE COURT, I CAN CH ECK WHEN I SIT DOWN , IF H E REFERRED TO THEM DURING THE CLOSINGS ARGUMENT AT THE G UILT PHASE .
HOW ABOUT IN THE PEN ALTYPHASE?
THE PENALTY PHASE, YES , YES.
EXTENSIVE LY?
YES. I MEAN --
THIS IS TO PROVE HAC?
YES.
AND, AG AIN, THE TRIAL COURT REFERRED TO --
THE TRIAL COURT REF ERRED TO THEM, TO O.
-- THREE OF T HEPHOTOGRAPHS.
THE TRIAL COURT REFERRED TO SEVERAL OF THEM.
IN SPECIFIC ALLY , ON THE HOLDING ON HACC.
THE TRIAL COURT REFERRED TO 57-TO-59 , THE AUTOPSY PHOTOGRAPHS, WHEN THERE WAS CONCLUSION OF NO VIC ARIOUSLIABILITY HERE BEC AUSE THEY FULLY CONCLUDED THAT MR . JACKSON AND MR. ENGLAND FULLY PARTICIPATED IN THE BEATING. THE OTHER PHOTOGRAPHS IN EXHIBITS 23-THROUGH-30 , WHICH DEP ICTED BLOOD EVERYWHERE IN THE BEDROOM. THOSE REALLY AREN'T AT ISSUE. IT IS SPECIF ICALLY THE ONES IN THE BATH TUB , AND , I THINK , MORE ESPE CIALLY THE AUTOPSYPHOTOGRAPHS.
CHIEF JUSTICE: ARE YOUGOING TO HIT ON ISSUE TEN ABOUT THE RE VERSE WIL LIAMS RULE EVIDENCE? WERE YOU PLAN NING TO --
I CERTAINLY CAN. I CERTAINLY CAN.
CHIEF JUSTICE: WAS THAT ONE OF THE POIN TS THAT YOU--
IT WASN'T ONE OF THE POINTS THAT I DELI NEATED , BUT I CAN CERTAINLY AS I AM MOVING THROUGH THIS.
CHIEF JUSTICE: YOU MADE THE COMMENT THAT, IF THE JUDGE FO UND THEY WERE EQUALLY CULPABLE , THAT IF ONE IS A PLEA THEN THE E QUAL CULPABILITY CONC EPT DOESN'T DOESN'T AP PLY , BUT I WAS CONCERNED ABOUT THIS REVERSE WILLIAMS RULE T DOESN'T APPEAR THAT IT WAS EVER OFFERED -- RULE. IT DOESN'T APPEAR THAT IT WAS EVER OFF ERED IN THE CASE AND ATTEMPTED TO BE OFFERED IN THE GU ILT PHASE.
WHAT HAPPENED WAS THERE WAS EXTENSIVE LITI GATION PRIOR TO TRIAL ABOUT WILLIAMS RULE EVIDENCE, BOTH AS TO MR . ENGLAND AND REVERSE WILLI AMS RULE EVIDENCE AS TO MR . JACKSON. THERE WERE EVIDENTI ARY HEARINGS, IN ORDER FOR THE LOWER COURT TO MAKE THE NECESSARY DETERMINATIONS PARTICULARLY AS TO THE REVERSE WILLIAMS R ULE EVIDENCE ABOUT MICH AEL JACKSON.AFTER THE CONCLUSION OF THAT LITIGATION, JUDGE FOX MAN DID INDICATE THAT HE WOULD BE ALLOWING, SHOULD MICHAEL JACKSON TESTIFY FOR T HESTATE, THE DEFE NSE TO PRESENT WILLIAMS RULE EVIDENCE REGARDING MICHAEL JACKSON'S PRIOR ATTEMPTED FIRST-DEGREE MUR DER. THE COURT LISTED A SE RIES OF SIMILARITIES WHICH ARE CITED IN THE BRIEF ON PAGE 3 FOOTNOTE 5, AND THEY ARE , ALSO, CITED IN THE ACTUAL BODY OF THE ARGUMENT , ARGUMENT 10. AFTER THAT OCCURRED , THERE WAS AN AGREEMENT , I THINK I T WAS PRETTY CL EAR THAT MICHAEL JACKSON WASN'T GO IN G TO BE TESTIFYING. BOTH PARTIES AGREED THAT NEITHER SIDE WOULD BE PRESENTING ANY WILLIAMS R ULE EVIDENCE IN THE GUILT PHASE , AND SO THE STATE OPTED NOT TO PRESENT ANY WILLIAMS RULE EVIDENCE REGARDING MR . ENGLAND'S PRIOR, AND THE DEFENSE AGREED A T THE GUILT PHASE, NOT TO PRESENT THE WILLIAMS RULE EVID ENCE, BECAUSE OBVIOUSLY THEY WERE CALLING MICHAEL JACKSON. THEY WOULDN'T NEED TO PRESENT THE REVE RS E WIL LIAMS RULE EVIDENCE.
THIS WAS GOING T O B E RELEVANT IN THE PENALTY PHASE, FOR THE DISPAR THE AT -- THE DISP ARATE TREA TMENT ARGUMENT?
THE DEFENSE, THEN, AT THE PENALTY PHASE, RE QUESTED THE COURT , REQ UESTED TO INTRODUCE THE REVERSE WILLIAMS RULE E VIDENCE AS TO MICHAEL JACKSON , AT THEPENALTY PHASE, INDICATING TOTHE COURT THEY HAD AL READY FOUND IT RELEVANT TO THE GUILT PHASE.WE BELIEVE IT IS V ALID MITIGATION, B ECAUSE ONE OF THE ISSUES THAT THE DEFENSE WAS TRAVELING UNDER AT THE PENALTY PHASE WAS THAT MR . ENGLAND WAS AN ACCOMPLICE OR PRINCIPAL OR THAT HIS R OLE WAS RELATI VE LY MINOR, WHICH ARE VA LID MI TIGATING CIRCUMSTANCES. THE STATE ARGUED - -
CHIEF JUSTICE: NOT JUST SOLELY EQ UAL. THAT IS DIFFERENT BECA US E THAT IS A STATUTORY MITIGATOR.
CORRECT. CORRECT.CORRECT. CORRECT. AND THE STATE'S ARGUMENT WAS , WHILE YOU K NOW , ANY THING RELATING TO THE CODEFENDANTIS SIMPLY NOT RELEVANT . WE PENALTY PHASE, ANYT HING RELATING TO MR. ENGLAND 'S PRIOR HISTORY OR BACKGROUND WOULD BE RELEVANT BUT NOT MR . JACKSON'S. AND THE COURT AGREED WI TH THAT, AND WE SUBMIT, I THINKTHAT THAT IS ERR OR FOR A NUMBER OF REASONS. THE BIGGEST ONE , I T HINK , IS BECAUSE UNDER THE EIGHTH AMENDMENT, I THINK CERTAINLY THE CONSTITUTION SAYS THAT A JURY CAN'T BE PRECL UDED F ROM CONSIDERING ANY MITIGATION WHICH IS VALID.
HAD MR . JACKSON ACT UALLY BEEN CONVICTED OF SOMETHINGAT THAT POINT, OR WAS THIS SIMPLY A CH ARGE OR THAT HE HAD BEEN INVOLVED IN SOME OTHER OFFE NSE?
HE HAD BEEN INVOLV ED. I DON'T RE CALL THE RECORD THERE. HE MAY HAVE BEEN CHARGED. I DON'T KNOW THAT HE EVERWAS ACTUALLY CONV ICTED O F IT. I AM NOT SURE. BUT, AGAIN , THERE WAS EXTENSIVE EVIDEN TIARY DEVELOPMENT ON THE CASE , O N THE ISSUE , AND FOXMAN DID ISSUE AN EXTENSIVE ORDER FINDING SEVERAL POINTS O F WHAT HE CA LLED STRI KING SIMILARITIES BETWEEN THE PRIOR CRIME THAT MICHAEL JACKSON HAD BEEN INVO LVED IN AND THE IN STANT CASE.
WOULDN'T THE CONVICTION BE A NECESSARY AS PECT OF THAT, JUST SIMPLY A CHARGE OR ACC USATION ? WOULD THAT NOT CHANGE THE DYNAMICS OF THE DISCUSSION?
I DON'T THINK SO , BECAUSE I MEAN, IF IT IS REL Y REL VANITY AT THE GUILT -- IF I T IS RELEVANT AT THE GUILT PHASE, IT IS CERTAI NLY RELEVANT AT THE PENALTY PHASE, AND CERTAINLY WILLIAMS OR REVERSE WILLIAMS RULE EVIDENCE CAN COME IN AT CON VICTION , PARTICULARLY T HEPENALTY PHASE WHERE THE RULES ARE SO MEWHAT RELA XED . I DON'T SEE THAT HE WAS O R WASN'T CONVICTED OF BEING , AND CERTAINLY THAT WAS NEVER RAISED BELOW BY EITHER PARTY THAT IT COULDN'T COME IN BECAUSE THERE WASN'T A CONVICTION.
HOW DID THIS COME IN? WHO WAS GOING TO TESTIFYABOUT THIS P RIORINVOLVEMENT?
I BELIEVE, CERTAINLY IDON'T THINK , MY RECOLLECTION IS THAT THE DEFENSE WAS SIMPLY GOING TO PROBABLY INTRODUCE THE TESTIMONY THAT WAS TAKE N AT THE PRE PRIL TRIAL -- PRETRIAL WILLIAMS RULE HEARING, WHERE THE VICTIM I BELIEVE IN THE PRIOR CASE, HAD TESTIF IED , AND THERE WAS SOME OTHER WITNESSES, I BELIEVE. THERE WAS EXTENSIVE WILLIAMS RULE LITIGATION IN THE CASE, AND SO M Y RECOLLECTION OF THE DEFENSE PROFFERING THAT INFORMATION , I DON'T KNOW, I DON'T THINK THE RECORD BEARS OUT THAT HE HAD THAT PARTICULAR WITNESS THERE , BUT IRRESPECTIVE OF THAT , I THINK THAT THEY WERE SE EK ING TO IN TRODUCE THAT PRIOR SWORN TESTIMON Y. LET ME JUST T URN T O ARGUMENT TEN HERE, TO SEE.
AS YOU DO THAT, WHAT WAS IT BEING OFFERED FOR SPECIFICALLY, IN --
IT WAS BEING OFFER ED FOR A NUMBER OF REASONS. IT WAS BEING OFFERED FOR MITIGATION, IN ORDER TO BUTTRESS THE DEFENSE THE ORY THAT MR. ENGLAND WAS EITHER AN ACCO MPLICE , PRI NCIPAL , OR THAT HIS ROLE WAS RELA TIVELY MINOR, WHICH IS STATUTORY MITIGATING FA CTOR. THE STATE'S ARGUMENT WAS , AGAIN , THIS IS NOT RELATED AT ALL TO MR . ENGLAND. THIS RELATES TO MICHAEL JACKSON, AND THAT ISSUE HAS ALREADY BEEN DECIDE D AT T HEGUILT PHASE, AND SO THEY WERE SORT OF ARGU ING IT IS RESIDUAL DOUBT AND JUST NOT RELEVANT. ANYTHING OTHER THAN T HEDEFENDANT, HIMSELF, THIS IS THE STATE'S POSI TION, I S JUST NOT RELEVANT, BUT W HEN YOU HAVE MITI GATION O R MITIGATING CIRCUMSTANCES THAT, IN SOME RESP ECTS D O DOVETAIL WITH SOME OF THE ISSUES OF THE GUILT PHASE, LIKE WHETHER THE DEFENDANT WAS AN ACCO MPLICE OR W HETHER THE DEFEND ANT'S ROLE WAS RELATIVELY MINOR , THAT IS VALID MITIGATION , I SUBMIT.
BUT THE ONLY DEFENSE , I F I AM CORREC T, THAT EVE NING LAND WAS OFFERING , WAS THAT I WAS NEVER IN THE RO OM. IT IS NOT LI KE I WAS OUT SIDE THE CONDO OR SOME WHERE E LSE , CORR ECT?
WELL , HE DID TESTIFY AT THE PENALTY PHASE , THAT'S CORRECT, THAT'S CORRECT, TO , BUT I MEA N, HE DID ACKNOWLEDGE THAT HE AS SISTED IN GETTING RID OF SOME OF THE GOODS , AND SO THAT IS AN ARGUMENT OF RELAT IVELY MINOR PARTICIPATION.
THE CHARGE.
CORRECT. CORRECT.BUT THIS GOES TO, AG AIN, WHETHER HE WAS AN ACCOMPLICE OR PARTIC IPATION WAS RELATIVELY MINO R. I SEE MY LIGHT IS ON. I DO JUST WANT TO BRIE FLY TOUCH ON THE , JUSTICE PARIENTE INDICATED EARLIER ABOUT CASE L AW ABOUT CULPABILITY IN A PLE A. THE ONLY CASE , REALLY , THAT IS DISCUS SED IN AND MENTIONED IS C YTE , CER TAINLYMENTIONED BY THE TRIAL COURT'S ORDER. I THINK KYTE REALLY IS A COMPLETELY DIFFERENT SITUATION.NUMBER ONE IT INVOL VES A SUCCESSIVE 3.850 WHERE IT PERTAINED TO THE EVIDENCE. THAT IS DIFFERENT IN MY V I EW FROM A DIRECT AP PEAL IN A CAPITAL CASE, WHERE THE EIGHTH AMENDMENT CONTROLS AND WHERE YOU HAVE A TR IAL COURT SAY ING HE IS NOT GOING TO CONSIDER THE FACT THAT HE ADMITTEDLY FOUND THE T WO TO BE EQUALLY CULPABLE. HE IS NOT GOING TO CON SIDER THAT IN 349GATIO N. I THINK THAT -- IN MITIGATION. I THINK THAT HAS SOME V ERY SERIOUS EIGHTH AM ENDMENT CONCERNS N AD DITION TO THAT , I THINK THE TRIAL COURT FINDING THEM B OTH EQ UALLY CULPABLE IS NE ARLY DISPOSITIVE ON THE PROPORTIONAL ITY ANALYSIS. ALL OF THE CASES C I TED BY THE STATE WITH RESPECT T O PROPORTIONALITY , NO NE OF THEM INVOLVE CASES WITH CODEFENDANTS, AND SO CERTAINLY NONE OF THEM THATI HAVE SEEN WHERE YOU HAVE AN EXPLICIT F INDING B Y T HETRIAL COURT THAT T HEDEFENDANT AND CO DEFENDANT ARE EQUALLY CULP ABLE. IT D O ESN'T MAT TER UNDER MY VIEW, UNDER AN EIGHTH AMENDMENT ANALYSIS, WHETHEROR NOT MR . JACKSON PLED GUILTY TO SECOND-DEGREE MURDER, WHERE YOU HAVE A TRIAL COURT FI NDING THAT THEY WERE EQUALLY CUL PABLE. HE COULD HAVE WALKED OUT OF THE COURT A F REE MAN, B UTWHEN YOU HAVE A FINDING BY A TRIAL COURT THAT THE EVIDENCE INDICATES THAT T HEY ARE EQUALLY CULPABLE, I THINK THE EIGHTH AME NDMENTREQUIRES THAT TO BE CONSIDERED, AND IN ADDITION TO THAT , I THINK WE HAVE GOT A LA UNDRY LI ST OF MITIGATION THAT THE COURT FOU ND TO BE STRONG AND WAS ENTITLED TO SUBSTANTIAL WEIGHT, SO WHEN YOU PUT ALL OF THAT IN TO THE MIX , EITHER UNDER THE EQUAL CULPABILITY AN ALYSIS OR THE PROPORTIONALITY A NALYSIS , I THINK MR. ENGLAND 'S DE ATH SENTENCE NEED S TO BE VA CATED AND I WILL RES ERVE THE REST OF MY TIME FOR REBUTTAL. THANK YOU.
CHIEF JUSTICE: MS. DA VIS .
> MAY IT PLEASE THE COURT. MY NAME IS BARBARA DA VIS AND I REP RESENT THE STATE OF FLORIDA. MR. ENGLAND CONFESSED THAT HE BE AT MR . WETHER ELL WITH A FIRE PO KER AND BLUDGE ONED HIM TO DEATH AND EVEN SIGNED A CONVEYANCE WITH ONE PER SON SO THAT THAT PERSON WOULD NOT TESTIFY AGAINST HI M. HE TOLD TWO --
CHIEF JUSTICE: WHO WERE THE TWO PE OPLE THAT HE CONFESSED TO?
ST EVEN DEI LECHLT AND RINALDO D e LEON .
WERE THEY JAILHOUSE SNITCHES?
NO. DE LEON WAS HIS BEST FRIENDAND THE PERSON THAT MR. ENGLAND TOOK THE ST OLEN PROPERTY TO, TO F ENCE IT.
ARE YOU STARTI NG OUT WITH A HARM LESS ERR OR?
NO. I AM SUMMARIZING THE EVIDENCE BECAUSE IT IS SO COMPELLING. I THINK YOU CAN PROBABLY RECOGNIZE ALL OF THE EVIDENCE AGAINST MR. ENGLAND , THAT HE WAS IN T HEAPARTMENT. HIS HANDW RITING , PERPERT , "F" WITH US , WAS O N THE PHOTOGRAPH THAT HE CONF ESSED TO TWO PEOPLE THAT HE DID KILL MR . WETHER ELL. THAT HE TOOK THE STOLEN PROPERTY AFTERWARDS.
CHIEF JUSTICE: LET'S G ET TO WHAT ABOUT THE C RIMESCENE , YOU KNOW , YOU HAVE JACKSON LIVING, JACKSON SAYS HE DID IT.
YES.
CHIEF JUSTICE: OBVI OUS AT THE TRIAL.
WELL , HIS FOR WARD STATEMENT WAS THAT HE DID IT. HIS PRIOR THREE WERE THAT HE AND MR. ENGLAND DID IT TOGETHER.
CHIEF JUSTICE: BUT IS HE THE ONE LIVING WITH MR. WETHERELL AND IN TERMS OF MR . WETHERELL WAS AS KING HIM T O LEAVE THE H OUSE. WAS THAT PART OF THIS SCENARIO? I MEAN, HE HAS THE BIG GEST , SORT OF THE M OTIVE TO KILLMR. WETH ERELL.
THAT MAY , MR . JACKSON MADE SO MANY STATE MENTS , THAT HIS --
CHIEF JUSTICE: O KAY.SO WHAT IS THE BEST , I GUESS , PHYSICAL EVIDENCE TYING MR. ENGLAND TO THE AC TUAL BRUTAL MURDER SCENE?
WELL , HE DE NIED EVEN BEING IN THE HOUSE , KNOWIN G MR. WETHERELL OR MR . JACKSON.THERE WAS A CIGARETTE BUTT WITH HIS DNA UPSTAIRS IN MR . JACKSON'S BEDROOM. HE WAS WITH MR. JACKSON A T THREE O'CLOCK. HE MADE PHONE CALLS FR OM THE WETHERELL RESIDENCE AT 4:24. THERE WERE THREE PHONE CALLS THAT HE MADE FROM THE RESIDENCE. HE HAD THE STOLEN PROPERTY,WHICH HE TOOK T O OR LANDO TO TAKE CARE OF . SO THE FORENSIC EVIDENCE IS OF MR. ENGLAND BEING THERE, IS DEFINITELY THERE.
CHIEF JUSTICE: IS IT THE STATE'S THEORY THAT WHETHER , THAT EVENING LAND ACT UALLY DID THE M URDER -- THAT EVENING LAND ACTUALLY DID THE MURDER OR JACKS -- THAT ENGLAND ACTUALLY DID THE MUR DER OR THAT JACKSON AND ENGLAND DID IT TOGET HER?
THEY DID IT TOGETHER BUT MR. ENGLAND WAS 28 YE ARS OLD. JACKSON WAS 18 YEARS OLD AND ONE MONTH.MR. ENGLAND WAS HIS ROLE MODEL AND MEN TOR.MR. ENGLAND WAS CLE ARLY I N CHARGE OF THE SCEN ARIO , A NDMR. JACKSON LOOKED UP TO HIM. IN FACT, THERE WAS A N INCIDENT JUST RIGHT PRIOR TO THIS, WHERE THEY HAD GONE TO A PARTY AT OLL V ERY VAN VALKENBURG'S, AND MR. ENGLAND HAD STOLE AND NECKLACE AND GOT THEM B OT H THROWN OUT OF THE PARTY. MR. JACKSON , OF CO URSE , SA ID THAT IT WAS HE WHO STOLE THE NECKLACE AND GOT THROWN O UTOF THE PARTY, BUT MR . VAN VALKENBURG CAME AND TESTIFIED THAT T HEY GOT THROWN OUT OF THE PARTY, IT WAS MR. ENGLAND, THAT THEY GOT THROWN OUT OF THE PARTY AND WERE YE LLING OUT YEARS AND FA G ON THES . -- AND FAGGOTS.
CHIEF JUSTICE: WAS MR . ENGLAND , APPARENTLY HE LIVED WITH MR. WETHERELL , MR . JACKSON, AND APPARENTLY HE LIVED WITH OTHER MEN. WHAT SDT RECORD SAY ABOUT THAT?
I DON'T KNOW BUT CLEA RLY HOMOPHOBIC BECAUSE THE STATEMENTS HE IMMEDIATELY MAID TO MR . DE EHL WAS H E KILLED THE OLD MAN BEC AUSEHE WAS A PER VERT AND HE SAID I CAN'T STAND. THAT HE WROTE PERV ERT ON THE PICTURE.
CHIEF JUSTICE: SO R ATHER THAN BEING HOMOSE XUAL , THE STATE'S THEORY IS THAT IT WAS MOTIVATED BY A HOMOPHOBIC CONCERN?
YES, AND THAT IS WHAT T HEEVIDENCE SHOWED , IS THAT MR. ENGLAND JUST CLEARLY HA TE D HOMOSEXUALS, AND HIS PRIOR MURDER BORE THAT OUT. OF COURSE WE DIDN'T LEARN THAT UNTIL THE PENALTY PHASE , SO ADDRES SING THE FI RST ISSUE , NUMBER ONE , THIS WAS A DEFENSE WITNESS. MICHAEL JACKSON WAS A DEFENSE WITN ESS. THIS HAPPENED AND THEDEFENDANT HAD MADE THE MOTORVEHICLES IN LIMINE TO -- THE MOTION IN LIMINE TO EXCL UDE THE PRIOR MURDER AND SHOULD HAVE AD VISED THEIR WITNESS DON'T SAY ANYTHING. THIS WAS A COMPLE TELY NONRESPONSIVE STATEMENT TO THE PROSEC UTOR IN CROSS-EXAMINATION, AND, REMEMBER, MR. JACKSON HAS NOW REC ANTED AND IS COMING IN THERE, T RYING TO SA VE MR. ENGLAND FROM THE DEATH PENALTY. AND THE QUESTION THAT WAS , THE PROSECUTOR ASKED WAS , DO YOU REMEMBER TELLING YOUR B ROTHER SA M, THAT YOU AND RICH WENT IN THE HOUSE , DID THIS TOGETHER , AND BEAT HIM. HE WAS YELLING AND SCREAMING. YOU TOLD HIM TO SHUT THE F UP. HE WOULDN'T Q UIT SC REAMING. YOU BEAT HIM UN TIL HE W ASDEAD, THEN YOU BOTH PUT H IMIN THE BATH ROOM , AND TH EN MR . JACKSON STA RTS SAYING, WELL , BUT I LIED , AND THE PROSECUTOR SAID , BUT DID YOU TELL YOUR BROTHER THAT? THE THAT REFE RS TO T HAT.I AM ON PAGE 1452 OF THE TRANSCRIPT, AND THEN MR . JACKSON JUST COMES OUT OF THE BLUE WITH THIS CLEA RLY NONRESPONSIVE STATEMENT , WHEN IT CAME UP AT THE SPENCER HEARING , DEFENSE COUNSEL SAID, NO, I INTENTIONALLY DID NOT OBJECT . MR . JACKSON WAS HELPING US. IT WAS MINIMA L. IT WAS HA RDLY NOTICEABLE . THE JURY COULD THINK IT IS BECAUSE HE IS IN CUSTODY ON A MURDER CHA RGE. YOU KNOW, THEY DON'T PUT TOGETHER THE TIME FRAMES OF WHEN THEY TALK ABOUT - -
CHIEF JUSTICE: SO IT I S ACTUALLY EXPLAINED DURING THE RECORD IN THIS CASE WHY HE DIDN'T OBJE CT?
YES. AT THE SPENCER HEARING , MR. ENGLAND DID AN ORAL PRO SE MOTION FOR A NEW TRIAL , BASED ON THAT , AND THE J U DGE ASKED DEFENSE COUNSEL IN ALL FAIRNESS, TO RESPOND TO THE CLA IMS THAT MR. ENGLAND WAS MAKING. HE MADE THREE CLAI MS OF INEFFECTIVE NESS , AND DEFENSE COUNSEL RESPONDED. THE PROSECUTOR AL SO SAID AND HE WAS STANDING RIGHT THERE , ASKING THE QUESTIONS , HESAYS I DIDN'T EVEN NOTICE IT. ONE OF THE VICT IM'S FAM ILY TOLD HIM ABOUT IT LA TER. IT HADN'T EVEN COME TO HIS ATTENTION. SO --
THAT IS BECAUSE HE SAID, IT IS ON A MURDER CHARGE AND DIDN'T SAY ON AN OTHER MURDER OR SOMETHING LIKE THAT, SO THE STATEMENT WAS K IND OF AMBIGUOUS.
RI GHT. HE SAID PUT IT OFF ON RI CH. HE HAS ALREAD Y GOT A MURDER CHARGE. YOU WILL GET OFF E ASY. SO THAT WAS , JUST COMP LETELY NONRESPONSIVE, AND THE PROSECUTOR JUST KEPT RIGHT , THE PROSECUTOR , YOU COULD TELEDIDN'T EVEN HEAR IT BECAUSE THERE WAS -- YOU CAN TELL HE D WNT EVEN HEAR IT -- HE DIDN'T EVEN HEAR IT BECAUSE THERE WAS NO REACTION BY ANYBO DY. HE SAID ARE YOU TELLIN G ME THAT YOU CONFID ED IN YOUR BROTHER THAT YOU AND MR. ENGLAND BEAT MR . WETHERELL TO DEATH? AND WHAT HE IS SAYING IS MICHAEL TOLD HIS BREAUXER SAM THAT WE WERE BOTH -- TOLD HIS BROTHER SAM THAT WE WERE BOTH IN THERE AND W E BOTH BEAT THE LIVING DAYLIGHTS OUT OF HIM. HE WAS SCR EAMING AND RUN NINGAROUND THE ROOM , TELLS US T O STOP, AND THE THAT WAS THAT , AND THE PROSECUTOR SAYS, S O YOU ARE NOW DEN YING THAT YOU TOLD YOUR BROTHER THAT. THAT WAS THE THAT. AND IT WOULD HAVE TO BE FUNDAMENTAL ERR OR, WHICH WOULD EVISCERATE THE WHOLE TRIAL . ON THE AUTOPSY PHOTOS , I WOULD LIKE TO POIN T OUT T HA T THERE WERE, THE JUDGE HAD A PRETRIAL HEARING, AND WENT THROUGH , THERE WERE 61 AUTOPSY PHOTOS . HE WENT THRO UGH EACH ONE. THERE WERE 1 1. HE EXCL UDE ED, NO , HE EXCLUDE ED ONE OF THE C RIME SCENE PHOTOS, BUT THERE WERE 1 1 , AND HE WENT THROUGH EACH ONE , AND EACH PHOTO SH OWED A COMPLETELY DIFFERENT VI EW , A COMPLETELY DIF FERENT INJ URY. THERE WERE MULT IPLE LACERATIONS , A CONTUSION TO THE HEAD, THE EARS , THE FRACTURED JA W. INSIDE THE M O UTH THERE WERE MULTIPLE LACER ATIONS AND CONTUSIONS DOWN THE A R MS , THE BACK, THE SHOUL DERS. THERE WERE DEFENSIVE WOUNDS ON BOTH HANDS , HAND BRO KEN. THE BO NES IN THE HANDS W ERE BROKEN. THERE WERE DEFENSIVE WOUN DS ALL OVER THE ARMS. BOTH FRONT AND BACK . THERE WAS TWO , AND YOU, WHEN THE MEDICAL EXAM INER TESTIFIED ABOUT TWO BASICALLY BARS , YOU CAN SHO W A BAR, TWO BLOW S ON THE ABDOMEN, SO THEY, REALLY , HONED THESE DOWN , W ENT THROUGH EACH ONE. DR. BEAVER USED T H OSE PHOTOGRAPHS. HE, THEY DIDN'T BRING THEM OUT AND GO TA -DA , I SN'T THIS AWFUL ? DR. BEAVER WENT THROUGH THE SPIRE, HOW HE DIED , THE DIFFERENT INJURIES -- T HEENTIRE, HOW HE DIED , EXPLAINED THE DIFF ERENT INJURIES, THE BAC TERIAL PROCESS WHICH IS A NO LL E PROSES, THE LARV AE , HE SAID THEY LOOK LIKE LIT TLE GRAINS OF RICE , HE EXPLAINED THIS ALL TO THE JURY BEFOR E HE EVEN REFERRED TO THE PHOTOS . EACH FOR -- REFERRED T O A DIFFERENT INJURY , AND SO THE MEDICAL EXA MINER USED. THAT AS FAR AS THE CRIME SCENE PHOTOS , AND I REFER THE COURT TO THE HE RTZ AND LOANY CASE , WHERE YOU SAID THAT THE CRIME SCENE PHOTOS ASSIST IN EXPL AINING THE CONDITION OF THE CRIME S CENEWHEN THE POLICE ARRIVED , AND YOU HAVE TO REMEMBER THAT THIS VI CTIM WAS PO SED WITH HIS PAJ AMA PA NT S REM OVED , POSED WITH HIS LE GS OPEN , AND THE TOP OF HIS HEAD COVERED WITH VA RIOUS IT EMS , WHICH WERE RETRIEVED F RO M THE HOUSEHOLD AND P LACED OVER HIS FA CE. SO THAT AND THE BL OO D SPATTER EVIDENCE , WHICH THERE WAS NO OBJECTION TO , SHOWED THAT THERE WAS , IT WAS A MA STER BEDROOM. THERE WAS BLOOD SPA TTER ALL OVER THE MASTER BEDROOM. THE , IT WAS PARKE R , THE BLOOD-SPLATTER PERSON , EXPERT WHO TESTIFIED THAT THERE WAS BLOOD SP ATTER IN A STANDING, IN A CROUCHING OR NOT STANDING , AND A PRONE OR LOWER POSITION . THERE WERE , THERE WAS BLOOD POOLED ON A CHAIR AND BETWEEN TWO BEDS THAT HAD SPLID APART. THERE WERE ACTUALLY -- SPLIT APART. THERE WERE ACTUALLY , JUST BLOOD EVERY WHERE , AND THEN THERE WAS PO OLING ON THE CARPET, A LSO , SO THE CRIME SCENE PHOTOGRAPHS ARE RELEVANT TO SET TING UP THAT , THE CRIME SCENE. THE AU TOPSY PHOTOS WERE NECESSARY TO SHOW NOT ONLY THE TIME FR AME, BECAUSE TIMING WAS V ERY IMPORTANT IN THIS. THIS HAD HAPPENED A WE EK BEFORE AN YONE DISC OVERED THAT MR. WETHERELL WAS MISSING. AND SO THE TIMING WAS EXTREMELY IMPO RTANT , AND THE MEDICAL EXAMINER TESTIFIED AS TO THE TIME FRAME AND THE PROCESS OF DECOMPOSITION . AND THAT THIS WOULD BE IN THE MODERATE R ANGE , WHICH WOULD BE APPROXIM ATELY A WEEK, AND THE EFFE CTS OF RIGOR MORTGAGEIES, AND SO I T WAS -- OF RIGOR MORTI S , AND SO IT WAS REA LLY NOT THAT BIG A D E AL. HE ALSO SAID THE BODY HAD BEEN CLEANED U P.NOW , WHEN THE BOD Y WAS FOUND , IT WAS FULL OF B LOOD AND ACTUALLY THERE WERE SO MANY CONTUSIONS AND BRU CING, AND HE DID SAY THAT , IN ORD -- AND BRUISING , AND HE DID THAT IN ORDER TO HAVE THE BRUISING, THE BLOOD WOULD HAVE TO COME TO THE SUR FACE , SO HE DID ST ILL HAVE TO BE ALIVE, SO AS FAR A S HE INOUS AND ATROCIOUS , I WIL L GO TO THAT, IT SHOWED THAT THE VICTIM WAS MO VING CONTINUOUSLY THROUG HOUT T HEROOM, THROUGH THE BLOOD SPATTER. THERE WERE BLOWS AT DIFFERENT HEIGHTS AND SERIOUS TRAUMA ALL OVER THEBODY, BROKEN HANDS AS DEFENSIVE WOUNDS.
CHIEF JUSTICE: I THINK ACTUALLY AND WE HEAR MANY CASES OF HA C WHERE THERE IS A MOMENT , YOU ARE T R YING TO FIGURE OUT IF THERE IS A MOVEMENT OF ONE IN CH. THIS IS, AS YO U ARE SAYING , THE BLOOD SPATTER EVIDEN CEWAS IN VARIOUS PLACES IN T HEROOM, WHICH CAN ONL Y BECONSISTENT WITH HIM MOVING AROUND AND STRUGGLING.
AND THE DEFENSIVE WOUNDS THAT HE HAD . SO I WILL GO RIGHT ON TO THE REVERSE WILL IAMS RULE . WHAT HAPPENED HERE IS THEY HAD PRET RIAL M O TIONS BECAUSE AFTER JURY SELE CTION , THE DEFENDANT WOULD NOT WAIVE SPEEDY TRIAL SO HE KIN D OF FORCED COUNSEL INTO T HIS TRIAL AND ALL OF THE PRETRIAL MOTIONS WERE HEARD AFTER JURY SELECTION AND RIGHT BEFORE THERE WAS GOING TO BE THE BEGINNING OF T HETRIAL. THEY HAD A S KED FOR R E VERSE WILLIAMS RULE EVIDENCE ON MR . JACKSON, BECAUSE MR. JACKSON HAD REC ANTED HIS THREE PRIOR STATEMENTS. AND MR . BEA M AND , THE VICTIM -- MR . BEAMAN , THE VICTIM ORAL ED GED VICTIM IN THE CASE, CAME IN AND TESTIF IED THAT HE NEVER SA W MR. JACKSON.MR. JACKSON WAS NEVER CHARGED W ITH THIS CRIME. THE VICTIM COULD NOT IDENTIFY MR . JACKSON OR SAY IT WAS DEFINITELY HIM. HE HAD SAID TO ONE OF THE POLICE DETECTIVES WHO HAD , ALSO, COME IN , THAT H E THOUGHT HE HAD HIT HIM WITH A METAL PI PE, BUT MR . BEAMAN WHO KN EW IT W OULD BE THE REVERSE WILLIAMS RULE PERSON , SAID I SLEPT WITH MR. JACKSON IN BED WITH HIM AND I KNEW EXA CTLY HOW HE FEELS. SO AT THE TIME HE WOULD NOT COOPERATE WITH THE STATE. JACKSON WAS NEVER CHARGED WITH THIS, BUT THE JUDGEFOUND THAT, A S FAR AS REVERSE WILLIAMS RULE , I T COULD COME IN IN THE G UILTPHASE, BUT THEN THE STATE 'S WILLIAMS RULE EVIDENCE ABOUT MR. ENGLAND 'S PRIOR MURDER, WHICH WAS A HOMOSE XUAL M ANTHAT HE KILLED BECAUSE HE HATES HOMOSEXUALS , WOULD, ALSO, COME IN. SO THEY MADE A DEAL IT IS NOT COMING IN. WHEN WE GET TO THE PENALTY PHASE, THEY WANTED TO OFFER IT A S EVIDENCE OF M INOR PARTICIPATION , AND THE JUDGE , IT JUST SIM PLY WAS NOT RELEVANT AT THAT PO INT. ENGLAND WAS DEN YING ANY PARTICIPATION IN THE MURDER. HE SAID THAT HE JUST CAME IN AFTERWARDS AND HELPED MR . JACKSON DISPOSE OF THE GOOD S, SO THE JUDGE FOUND THAT I T WAS NOT RELE VANT , THAT T HEEVIDENCE WAS JUST TOO FLIMSY. IT WAS