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CHIEF JUSTICE: THE NEXT CASE ON THE COURT'S D OC KE T I S FARINA VERSUS T HE STATE OF FLORIDA . ALL RIGHT. COUNSEL ARE READY . MISS PAR ME R ?

M AD AM CHI EF JUS TICE , JUSTICES, MAY IT PLEASE THE COURT. MY NAME IS MAR IE L OUIS E P AR ME R AND I R EPRESENT THE A PP ELLANT PETITIONER IN THIS MATTER.

CHIEF JUSTICE: JUS T FOR THE RECORD BECAUSE I KNOW IT IS NOT MR. GRU BE R S IT TING H ER E. WE'VE HAD , IF YOU C AN J US T INTRODUCE C O-COUNSEL WHO IS ALSO HERE.

ABSOLUTELY. THIS IS RICHE Y K IL EY ALS O , COLLATERAL COUNSEL . YOU R H ONORS , MR. F ARIN A I S BEFORE THIS COURT ON AN APP EAL OF THE DENIAL OF HIS 3 .8 51 M OTION AND ALSO O N A P ET ITION FOR STATE HAB YAS R EL IE F. I W OULD - - HAB EA S R EL IEF. I WOULD LIKE TO FOC US O N T HE ISSUE OF PRO SECU TO RI AL M ISCONDUCT RAI SE D IN T HE STA TE HABEAS.

I'M SORRY , I F YOU C OULD SPEAK UP A LITTLE BIT I'M H AVING TROUBLE HEARING Y OU . Y OU ARE GOING T O C ONCE NT RATE ON WHAT?

T HE I SSUE R AISE D I N THE STATE H ABEA S WHEN THE PROSECUTOR INT RO DU CED EVI DE NC E OF B IBLICAL AUT HO RI TY T O SUPPORT IMP OSITION OF T HE DEATH PENALTY. A S TO ALL O THER ISSUES I S TAND ON THE MERITS OF THE BRIEF BUT I'M H APPY TO ANS WER QUE STIONS AS TO ANY OF THE O TH ER I SS UE S. A NTHONY FARINA W AS DENIE D D UE P ROCESS AND A F AI R TRIAL WHEN THE PROSECUTOR INVOK ED T HE BIBLICAL AUTHORITY IN S UP PO RT OF A J UR Y V ER DICT O F D EATH . APPELLATE COUNS EL 'S FAILU RE T O RAISE THIS ISSUE TO THIS COURT ON DIRECT APPEAL CONST ITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

CHIEF JUSTICE: THIS WAS N OT RAISED, NOT O BJ EC TED T O AT THE TRIAL COURT LEVEL?

OH, NO , IT WAS O BJ EC TE D TO.

CHIEF JUSTICE: T HE CRO SS-EXAMINATION WAS OBJECTED TO ALSO?

ABSOLUTELY, YES. THERE WAS AN OBJ ECTION. THE A CTUAL OBJ ECTI ON WAS A REL EVANCE OBJECTION.

FROM WHAT I CAN TELL O F THE RECORD - -.

CHIEF JUSTICE: YOU S AID THE ACTUAL OBJECTION WAS A RELEVANCE OBJECTION, NOT THAT IT WAS I MP ROPE R CROSS-EXAMINATION?

NO , THE W AY I T W AS P HRAS ED AT THE TRIAL COU RT WAS RELEVANCE .

CHIEF JUSTICE: JUSTICE C AN T EAR - - CANTE RO ?

IT SEE MS TO M E T HERE W AS A RELEVANCE OBJECTION AND THEN AFTER A FEW MIN UT ES ' DISCUSSION THE COURT SAID CONNECT IT UP A ND MR. H ATHA WA Y IF IT IS N OT P ROPE RL Y CONNECTED UP RENEW Y OU R OBJ ECTION AND THERE W AS N O RENEWAL OF THE OBJ ECTION.

OH, NO, HE DID R ENEW THE OBJECTION YOUR HONOR AND THERE IS A CITE IN THE BRIEF, I N THE PETITION TO THE R ECOR D WHERE HE RENEWED IT. IT WAS AT THE CLOSE OF T HE EVIDENCE, THE TRIAL COURT MADE A SPE CIFIC FINDING.

AT THE CLOSE OF THE EVIDENCE?

YES.

I'M TALKING ABOUT D URING THE TESTIMONY ITSELF WHEN HE DIDN'T CONNECT IT U P T HE C OU RT SAID IF IT D OESN'T CON NECT IT UP YOU CAN REN EW Y OUR OBJECTION AND THAT WAS NEVER RENEWED DURING THE TESTIMONY.

THAT'S CORRECT. IT WAS NOT R ENEW ED DUR ING THE TESTIMONY BUT IT WAS RENEWED LATER AND THE TRIAL C OURT MAD E A SPECIFIC F INDING.

DON'T YOU HAVE TO OBJECT AT THE TIME C ONTE MPOR AN EOUS LY WITH THE TESTIMONY, N OT L AT ER ON IN T HE TRIAL? THE WHOLE POINT IS THAT YOU DON'T ADMIT THE TESTIMONY, NOT THAT TESTIMONY T HA T'S A LREA DY BEEN ADMITTED I S L AT ER STRICKEN. THE WHOLE POINT IS YOU OBJ ECT AT THE T IM E S O T HA T I T IS NOT ADMITTED?

CORRECT, BUT THE A TTORNEY DID M AKE A C ONTE MPOR AN EO US OBJECTION, YOUR HONOR, AND IF YOU LOOK AT WHAT IS T HE PUR N OF THE CON TE MP ORAN EO US OBJECTION RULE IT I S TO PUT THE TRIAL COURT O N N OTIC E THA T OBJECTIONABLE EVIDENCE IS ABOUT TO BE P RESENT ED . AND IF YOU LOOK AT THE CONTEXT OF THE O BJ ECTION, W HAT W AS HAPPENING AT THAT TIME IS T HE PROSECUTOR HAD A SK ED R EV ER EN D DAVIS O N C ROSS -E XAMI NA TION , ARE YOU F AMILIAR WITH THE B OO K OF R OM AN S? WHAT IS THE BOOK OF ROM AN S? AND THE WITNE SS SAID , YES , I 'M FAMILIAR WITH IT. WHAT IT SAYS IS THA T G OD CREATED THE A UT HO RITIES AND THE AUTHORITIES ARE HERE TO D O GOD'S W ORK. HE THEN HAN DS T HE W IT NESS THE PROSECUTOR THEN HANDS THE WITNESS A C OPY O F R OM AN S A T WHICH POINT D EFEN SE C OUNS EL SAYS I DON'T KNOW W HAT HE I S HANDING THE WITNESS. WHAT IS HE H AN DING THE WITNESS , YOUR HONOR? THE W ITNESS SAYS IT IS A C OP Y OF ROMANS. AND THE N DEF EN SE C OU NSEL M AK ES A N OBJECTION, R EL EVAN CE . AT THAT POINT T HE TRIAL COURT WAS P UT O N N OTICE A S T O T HE NATURE OF THE TES TI MO NY . IT WAS CLEARLY NOT R ELEV AN T TESTIMONY. THERE WAS NOT HING THAT COULD HAVE BEEN RELEVANT ABOUT THA T TESTIMONY.

WEL L H ELP M E O UT . WHO WAS THE WITNESS AND WHAT HAD HE TESTIFIED TO ON DIR ECT?

YES, YOUR HONOR, THE WITNESS WAS REVEREND DAVIS. HE WAS A D EFENSE WIT NE SS. HE HAD BEEN CALLED B Y T HE DEFENSE C OUNSEL AND Q UE STIO NE D BY B OT H A NTHO NY F ARIN A' S COUNSEL A ND ALS O J EF FREY FARINA WHO IS THE COD EF EN DA NT , THE ACTUAL KILLER W HO G OT LIFE IN THIS CASE , A ND H E WAS C ALLED TO TESTIFY TO A C OU PL E OF THINGS. ESSENTIALLY IT WAS SKI PPER VERSUS SOUTH C AROL IN A TESTIMONY AND ALSO L OC KE TT V OHIO. THE TES TIMONY WAS T HA T S INCE ANTHONY FARIN A H AD BEE N INCARCERATED HE HAD B EC OME A R ELIGIOUS PERSON AND HE HAD ACCEPTED JESUS CHRIST INTO H IS LIFE AND HE HAD ACTUALL Y BEEN BAPTIZED AND THAT HE HAD JOINED THE S TE TSON O R D EL AN D BAP TIST CHURCH AND THAT H E WAS A SERIOUS STUDENT OF THE BIB LE AND THA T H E W AN TE D T O M IN ISTE R TO OTHER I NM AT ES . THE REVEREN D DAV IS ALS O TESTIFIED, REVEREND DAV IS APPAR ENTLY H APPE NE D TO B E H AV E GONE T O P RI SON H IMSELF ALTHOUGH HE HAD SUBSEQUEN TLY BEEN PARDONED BUT HE HAD GONE TO PRISON H IMSELF AND H E ALS O TESTIFIED ABOUT THE NATURE OF LIFE BEHIND BARS AND H OW D IFFICULT PRISON LIFE WOU LD BE.

SO THE DEF EN SE I S A CTUA LL Y THE ONE W HO H AS INITI AT ED THI S W HOLE I DE A O F B RING IN G RELIGION I NT O THI S P ROCE ED IN G?

N O , N OT A CTUA LL Y A ND LET M E EXPLAIN WHY. YES, THEY DID PUT T HI S MINISTER ON. THIS ENTIRE T RIAL WAS I NFUS ED WITH REL IG IO N F RO M T HE V ER Y BEGINNING . IN JUR Y S ELECTION , U NOBJ EC TE D TO COMMENTS BY THE P ROSE CU TO R.

THAT'S ANO THER ISSUE YOU RAISE .

WELL , I T HI NK I DON'T M EA N TO CUT YOU OFF, YOUR HONOR, BUT THE REASON WHY I THINK THAT IS REL EVANT I S BEC AUSE IN TERMS OF LOOKING AT A PREJUDICE ANALYSIS AND LOO KI NG AT WHAT WAS T HE INTENT OF THI S PRO SECUTOR , W AS THI S INTENTIONAL BEHAVIOR, HOW PER VASIVE WAS THIS, AND IT W AS AND IF YOU LOOK AT WHAT H E TOLD THE JURORS T ELLING THE M , EVEN IF YOU ARE S EL EC TE D AS A JUROR, IT IS O KAY I F Y OU R RELIGIOUS BELIEFS DIS AG RE E WITH THE LAW YOU DON'T HAVE T O FOLLOW THAT.YOU CAN FOLLOW YOUR R ELIG IO US BELIEF. HE E LICITE D FRO M A NOTHER JUROR.

IS THAT I NAPP RO PR IATE ? AS IT WAS O CC UR RI NG , I F A PERSPECTIVE JUROR MAK ES A COM MENT AND S AY S T HAT M Y FUNDAMENTAL SPIRITUAL OR RELIGIOUS BELIEFS WILL NOT PERMIT M E TO F OL LO W OR I MPOS E A DEATH PEN AL TY , I S I T INAPPROPR IATE COMMENT FOR A LAWYER TO SAY THA T THE C OURT S RESPECT YOUR VIE WS A ND T HA T YOU ARE NOT REQ UIRED TO VIOLATE YOUR SPIRITUAL OR RELIGIOUS VIEWS?

NO , N O.

I S T HERE A NY THIN G W RONG WITH THAT?

HE S AID MORE THAN THAT. HE SAID IF YOU ARE S EA TED AS A JUROR, YOU HAV E T O - - A ND EVE N THOUGH THE JUDGE TELLS YOU TO FOLLOW THE LAW BUT YOU CAN'T BECAUSE YOU HAVE A R EL IG IO US OR M OR AL OBJ ECTI ON TO T HE L AW , THEN THAT'S O KA Y. E SSENTIALLY HE IS T EL LING T HE M YOU CAN LET YOUR REL IG IO US BELIEFS U SU RP T HE INSTR UC TI ON S OF THE COURT AND T HE QUO TE I S CITED IN THE P ETIT ION , THE ACTUA L QUOTE AND I WOULD B E HAPPY TO GET IT FOR YOU I N REBUTTAL IF YOU WOULD LIKE. SO, YES, T HE RE W AS G OING BAC K TO JUSTI CE Q UI NCE , Y ES , THE Y DID PUT ON T ESTIMONY A BOUT RELIGION. B UT THAT T ES TIMONY W AS PERMISSIBLE TESTIMONY AND Y OU SKIPPER V SOUTH C AROL IN A A ND LOCKETT V ER SU S OHI O.

WHEN THE D EF EN DANT B RINGS IN AND P AR ADES R ELIG IO N A ND DID THE Y INT RO DUCE THIS WITNESS AS A R EVEREN D?

YES.

AND P AR AD ES R EL IG IO N ARO UN D THE C OURTROOM AS A N A TTEM PT T O INF LUENCE WHAT A J UR Y I S G OI NG TO DO , W HA T I S T HE P ER MI SSIB LE SCOPE O F E XA MI NA TION ? CAN A C RO SS-E XA MINATION NOT ASK ABOUT BIB LI CA L TERMS W HEN THEY HAVE INVOKED THE BIB LI CA L REPRESENTATIVE ON E AR TH ?

WELL , THE PRO PE R S CO PE I N LIGHT O F THEIR , I T HINK THERE ARE TWO A NSWERS TO THAT A ND I F I COULD A DDRESS THA T I N T WO POINTS. FIRST, IF A NT HONY F ARIN A' S ATTORNEY HAD PUT THE R EV EREN D ON AND HAD THE R EV ER EN D ARG UE THE TEACH IN GS O F W HA TEVE R R ELIGION IN T HIS C AS E CHRISTIANITY, THE T EACH IN GS OF C HRISTIANITY TELL YOU THAT YOU HAVE TO, THAT THE DEATH PENALTY I S WRONG AND ITSHOULDN'T BE IMPOSED THEN , Y ES , THE C ROSS -E XAMINATION THAT T HE STATE -- THAT THE P ROSE CU TO R E NGAGED IN W OULD HAV E BEE N APPROPRIATE, BUT THAT'S NOT WHAT THEY DID. THEY PUT ON T ES TI MONY THA T JUST SHOWED THE SPI RITU AL GROWTH OF THI S P ARTI CU LA R I NDIVIDUAL WHICH IS P ER FE CTLY ACCEPTABLE UNDER THE UNITED STATES CONSTITUTIONAL LAW AND UNDER FLORIDA S TATU TO RY L AW AND FLO RIDA C ONST ITUTIONAL LAW.

HE A LSO TESTIFIED THAT T HE DEFENDANT HAD BEC OME A CHRISTIAN PERSON A ND E SPOU SE D CHRISTIAN BELIEFS AND JOINED A CHRISTIAN CHURCH?

YES.

S O W HY I SN 'T I T P RO PE R CROSS-EXAMINATION TO SAY, WELL, THIS IS W HAT T HE B IB LE S AY S WHICH IS W HA T C HRISTI AN S BELIEVE IN?

B EC AU SE C RO SS -EXAMINATION, THE E SSENCE OF WHAT THI S PROSECUTOR TOLD THE JURY CAN BE S UM ME D U P A S THI S : I A M T HE PROSECUTOR. I'M APPOINT ED BY G OD . I AM A N AUTHO RI TY T O D O G OD'S WORK, AND BEC AUSE I A M S EEKI NG DEATH IN THIS CAS E B ECAUSE I AM --

YOU ARE TALKING A BOUT CLOSING ARGUMENTS?

I'M TALKING ABO UT THETESTIMONY THAT THEY ELICITED FROM R EVER EN D DAV IS A ND BECAUSE I HAVE B EEN A PP OINT ED BY GOD TO SEEK DEATH IN T HI S CASE THEN YOU A S J UR ORS M UST SUBMIT TO WHAT I AM SEE KING I N THIS CASE.

WHERE DID H E S AY T HA T DURING CROSS-EXAMINATION? WHERE WAS THAT?

IF YOU LOOK AT T HE TESTIMONY OF REVEREND D AV IS AND THERE IS AN EXT EN SI VE CIT E IN THE STA TE H AB EA S , YO UR HONOR , A ND I 'M P AI R A PHR ASIN G BUT IF YOU LOOK AT THE ESS EN CE IT IS THE E SSENCE.

I DON'T WANT THE E SSENCE. I W AN T S PECIFI C S TA TE MENT S ON CROSS-EXAMINATION WHERE HEMADE THE STATEMENTS THAT YOUALLEGE HE MAD E .

OKAY. HE ASKED HIM AND I T I S O N P AG E 13, STA RT IN G O N P AG E 1 3 O F THE BRIEF, GOING TO PAG E 1 4 A ND I WILL START AT 14 BECAUSE I T IS A LENGTHY, LENGTHY Q UO TE , YOUR HONOR. ARE YOU FAMILIAR WITH THE FIRST OF 7 V ER SE S OF R OMAN S 13? YES, ABOUT H ONOR ING A UTHO RI TY , SUBMITTING TO A UTHORITY? THE JUDGE AND T HE PROSECUTOR AND THE D EFENSE ATTORNEYS ALL WORK FOR GOD AND ARE O R DANED BY GOD AS BEI NG T HE A UTHORITY IN THE POSITIONS THAT THEY ARE AND IF THEY -- G OD IS T HE ONE THAT ALLOWS THE M T O B E THE RE . STATE: WELL , I D ON'T WAN T T O SAY T HAT D EFEN SE ATT ORNE YS AREN'T SAVED B UT THE Y ARE NOT THE AUTHORITIES, ARE THEY? THEY ARE THE DEFENSE LAWYERS VERSUS THE PROSECUTOR SO TO INTERJE CT T HAT' S AN IN !!!! INAPPROPRIATE QUOTATION OF DEFENSE C OUNSEL. DAVIS, RIG HT. STATE: YO UR HONOR, MAY I HAN D HIM SOMETHING TO HELP WITH H IS MEMORY AS WELL? HERE COMES THE O BJECTION AND I WILL SKIP TO THAT TO G ET T O YOUR QUESTION. OKAY . THE PRO SECU TO R T EL LS THE WITNESS, READ V ER SE 1 AND 2 . THE W ITNESS SAY S , H E STA RT S R EADING .

CHIEF JUSTICE : N OW A GA IN AND THERE WASN'T ANOTHER OBJECTION AT THAT POINT WHEN HE STARTS READI NG F RO M THE BIBLE?

THE OBJECTION C OMES R IGHT BEFORE THAT.

CHIEF JUSTICE: TO RELEVANCE.

AND THAT'S WHE N THE OBJECTION, THE P RO SECUTO R HANDS THE WITNESS T HE COP Y OF ROMANS, T HAT'S WHEN T HE OBJECTION COMES.THE OBJECTION IS OVE RRUL ED A ND THEN THIS IS THE FOL LO WI NG T ESTIMONY THAT J USTICE CANTE RO ASKED ABOUT.

THE OBJECTION IS TO RELEVANCE THEN THE CONTEXT IN WHICH WE HAVE T O R EV IE W T HI S ISSUE IS WHE TH ER T HE JUDGE A BUSED SDR EPTION I N A LLOW IN G IN T HI S C RO SS-EXAMINATION ON RELEVANCE GROUNDS ? > > CORRECT , BEC AUSE THE INTRODUCTION OF E VI DE NC E I S A STANDARD, CORRECT, BUT T HE EVIDENCE CAN'T BE RELEVAN T BECAUSE FLORIDA STATUTES DEFINES RELEVAN T E VIDENCE AS ANY EVIDENCE TENDING TO PROVE OR D ISPROVE A M AT ERIAL FACT.

BUT THIS IS CROSS-EXAMINATION?

CORRECT.

SO Y OU CAN USE CROSS-EXAMINATION NOT TO PROVEOR DISPROVE A FACT B UT T O IMPEACH THE WIT NE SS ?

YES . BUT THIS D ID N' T I MP EACH THE WITNESS BECAUSE THE WITNE SSED NEVER RAISED ANY OF T HESE ISSUES. IT HAD NEVER BEEN RAISED IN DIRECT EXAMINATION SO IT WAS N OT R ELEVANT I MPEA CH MENT . SDPLOOT DEFENDANT HAS N OW C ONVERTED T O C HR ISTI ANIT Y. HE BELIEVES IN THE BIBLE. HE BELIEVES IN T HE C HRISTI AN BELIEVES. HE HAS JOINED A C HR IS TIAN CHURCH?

CORRECT.

HE IS INVOLVED IN C HRISTI AN ORGANIZATIONS?

YES, BUT NOTHING ABOUT SAYING CHRISTIAN T EA CH IN GS SAY THE DEATH PEN ALTY IS WRONG. IF I COULD, IF I C OULD R EA D THE ACTUAL QUOTES , B ECAUSE I T HINK IT WIL L H ELP. THIS IS WHAT HE H AS T HE WITNESS READ. R EVEREND DAVIS. EVERYONE MUST SUBMIT HIMSELF TO THE GOVERNOR OF A UT HO RI TI ES , FOR THERE IS NO A UT HORITY EXCEPT FOR WHICH G OD H AS ESTABLISHED. THE AUT HORITIES T HAT E XIST HAVE BEEN ESTABLISHED B Y G OD . CONSEQUENTLY, HE WHO R EB EL S AGAINST THE A UTHORITY IS REBELLING AGAINST WHAT GOD HAS INSTI TUTED. AND THOSE W HO D O S O , W IL L BRING JUDGMENT O N T HE MSEL VES. THAT'S A KEY PHRAS E BEC AUSE THE PROSE CUTOR L INKS THAT U P IN HIS CLO SING A RGUMENT. THAT'S HIS FINAL SEN TENC E TO THE JURY. THE PROSE CUTOR T HEN S AYS T HE NEXT VERSE DEALS WITH THE PROSECUTOR, DOES IT NOT ? WHAT DOES IT S AY ? > > WELL, I S YOU R A RG UM ENT HERE THAT THIS I S F UN DAME NT AL ERROR?

MY ARGUMENT IS THAT I T IS PROPERLY PRESERVED SO THI S COURT SHOULD ENG AG E IN A HARMLESS ERROR A NA LYSIS OR ALTERNATIVE LY I T I S FED ERAL CONSTITUTIONAL ERROR WHICH WOULD ALSO REQUIRE THIS COURT TO ENGAGE I N A H AR MLES S E RR OR A NALYSIS B UT EVE N I F Y OU DON 'T FIND THAT, THIS IS S O B AD , Y ES , THIS IS FUNDAMENTAL ERR OR .

YOUR ARGUMENT IS THAT APPELLATE COUNSEL W AS INEFFECTIVE IN FAILING T O RAISE THIS ISSUE ON APPEAL?

ABSOLUTELY. IT WAS NOT RAISE D A T A LL. THIS COURT NEVER HAS I SS UES.

GIVE US THE BROADER C ON TEXT OF THE APP EL LA NT'S A RGUMEN T S ON APPEAL. HOW MANY ARGUMENTS DID THE APPELLATE COUNSEL MAC ON A PPEAL?

YOU MEAN HOW M ANY ISS UE S ARE RAISED IN HIS BRIEF ?

CORRECT .

I'M NOT S URE.

ISN'T THAT C RU CIAL FOR U S TO DETERMINE WHETHER T HERE WAS ACTUAL INEFFECTIVE ASS IS TA NCE BECAUSE WE HAVE H ELD T HA T C OUNSEL IS N OT N EC ESSA RILY REQUIRED TO RAI SE EVE RY MER ITORIOUS I SSUE O N A PPEA L THAT APPEL LATE C OUNS EL MAK ES JUDGMENT CALLS ALL OF T HE TIM E , T HEY HAV E P AGE L IM IT ATIONS EVEN THOUGH WE H AV E R AI SED I T TO 100 ON D IR ECT A PPEAL T HERE IS S TILL A 8 -P AG E LIM IT AT IO N AND COUNSEL NEE D TO MAKE JUDGMENT CALLS ABOUT WHAT ISSUES HAVE THE GREATEST LIKELIHOOD T O SUC CE ED O N APPEAL.

A COUPLE O F POINTS I W OULD LIKE TO MAKE IN RESPONS E T O THAT. I THINK THE COURT'S A NALY SI S SHOULD BE Q UA LI TY N OT Q UANT IT Y , AND I THINK W HI LE Y OU CERTAINLY, THE COURT CAN TAKE INTO ACCOUNT THE NUMBER OF ISS UES RAISED, YOU H AV E T O LOOK AT THE QUA LI TY O F THE ISSUES.

AND Q UALITY, ISN'T THAT A STRATEGIC DECISION BY COUNSEL?

WELL, IT MAY OR MAY NOT BE.

ARE W E H ER E T O --

THE P ROBL EM I S W E DON'T KNOW BECAUSE THERE IS NO MECHANISM IN THE STATE OF FLORIDA WHETHER COU NSEL DIDN'T RAISE THIS ISSUE BECAUSE HE DIDN'T READ THE BRIEF SUFFICIENTLY, I MEAN THE RECORD SUFFICIENTLY , OR I F H E DIDN'T KNOW THE LAW , BECAUSE THIS COURT HAS SAI D T EN Y EARS A GO S AID D ON'T B RI NG R ELIG IOUS BIBLICAL TEACH INGS.

BUT I DON'T SEE Y OU R AI SI NG IN YOUR B RIEF THAT THERE WAS ANOTHER ISSUE THAT C OU NSEL D ID R AISE THAT WAS A FRIVO LO US ISSUE THAT SHOULD N OT HAVE BEEN RAISED AND THIS ONE REPLACES THAT I SS UE ?

I'M N OT - - AND T HA T M AY B E AN E RROR O N M Y P AR T I A M NOT AWARE OF A REQUIREMENT T HA T I N RAISING I NEFFEC TI VE A SS ISTA NCE OF COUNSEL THAT I HAV E TO POINT TO ISSUES T HA T SHO ULDN'T HAVE BEEN RAISED BUT CER TAIN LY AS I R EA D , A S I REA D THE RECORD ON A PP EA L T HIS TYPE O F ISS UE L EF T O UT AND I H AVEN 'T EVEN FINISHE D T HE Q UOTE S.

CHIEF JUST ICE: WE HAVE T HA T BEFORE U S.

THIS IS P IG EO N- HO LE D , THOUGH, HERE , A S A C LAIM O F INE FFECTIVE A SS ISTANCE OF APPELLATE COUNSEL AS OPPOSED TO INE FFEC TIVE A SSIS TANC E O F T RIAL COUNSEL.

CORRECT, Y ES. IT IS R AI SE D. A ND I SEE I AM I N M Y REBUT TA L TIME.

CHIEF JUSTICE: YOU CAN SAVETHE REMAINDER OF YOUR TIME FOR REBUTTAL.

THANK YOU .

MAY IT PLEASE THE COU RT , KEN NUNNELLEY , I REP RESE NT T HE STATE OF FLORIDA IN THIS APPEAL. THIS CLAIM IS PROPE RL Y P IJ THAN -- P IGEO N-HOLE D A S O NE O F INE FFECTIVE ASSISTA NC E O F COU NSEL. THERE IS NO CLAIM ON THE PAR T OF TRIAL COUNSEL AND THE STATE'S POSITION I S A S SET O UT IN THE R ESPONS E F OR THE WRI T O F HABEA S COR PU S T HA T T HI S IS NOT PRO PE RLY P RE SE RV ED . BECAUSE THIS CLAIM O R THI S ISSUE IS NOT PRO PERL Y PRESERVED BY A C ON TEMP OR ANEO US O BJECTION, A PP ELLATE C OUNS EL CANNOT UNDER THE LAW OF THIS COURT HAVE B EEN I NEFF EC TI VE FOR NOT RAISING I T O N D IREC T A PPEAL.

CHIEF JUSTICE: UNLESS IT IS FUNDAMENT AL ERROR.

MA'AM?

CHIEF JUSTICE: U NLESS IT WOULD AMOUNT TO F UN DAME NTAL ERROR.

IT IS STILL N OT I NEFF EC TIVE . B UT - -

H E COU LD R AI SE I T I F I T WAS F UNDAMENTAL ERROR.

U NP RESERV ED , H E C OULD HAV E R AISED T I D O N OT CON CEDE THAT THIS IS FUNDAMENTAL E RROR A ND NOW I GUESS B ACK T O J USTI CE CANTERO'S QUESTIONS OR COMMENTS, W HA T I S A PP ELLA TE COUNSEL SUPPOSED TO D O? HE HAS FILED A B RI EF WIT H T EN S EPARATELY D EN Y N OMIN AT ED CLAIMS , 1 2 TOT AL C LAIM S T HA T D ID CONSIST OF 9 6 PAGES . THE PAG E LIMIT IS 1 00 .

SHE STATES , I M EA N H ER ARGUMENT IS T HAT THE STA TE H AS KNOWN F OR OVER TEN YEARS THAT THIS IS T OTALLY INAPP RO PR IA TE THAT THIS IS O UT RA GEOU S , THAT'S THE POSITION SHE I S TAKING, AND S O I T HI NK T HAT' S WHAT YOU NEED TO RESPOND T O I S IT IS JUST SO C LE AR LY WRONG THAT A N OVIC E F IRST Y EAR LAW S TUDENT W OULD K NO W THAT Y OU CAN'T BRING THE BIBLE IN A ND CROSS-EXAMINE A M INISTER WHO IS BROUGHT IN TO TES TIFY U NDER THESE C IRCUMSTANCES. I M EAN , T HA T'S A F UNDA ME NTAL POINT. THIS HAS JUMPED OFF T HE P AGES AT HER. WHY I S THA T --

I THINK I HAVE T O A NSWER THAT IN A COUPLE OF DIFFE RENT WAYS.

HOW ABOUT JUS T O NE T HAT I S SATISFACTORY?

I THINK THEY ARE A LL GOOD , JUDGE . FIRST O F ALL , YOU DO N OT HAV E A N OBJECTION R AISED A T T RIAL. YOU HAVE A RELEVANCE OBJECTION.

A R ELEV ANCE O BJ ECTION.

UNDER R OD RIGU EZ FROM T HIS COURT, THAT DOESN'T PRE SERV E THE CLAIM THAT THEY ARE RAISING HERE. I THINK THAT'S PRE TT Y C LE AR THAT A N O BJ EC TION B ASED O N RELEVANCY DOES NOT P RESERV E A CLAIM O F I NH ER EN T U NF AI RNES S. NOW, WITH THA T A S T HE S TA RT IN G POINT, THE FAC T T HAT Y OU DON'T HAV E A N O BJ EC TION T HA T GOE S SQUARELY TO THE HEART OF T HE BIB LICAL ARGUMENT IF Y OU W IL L , AND THE F ACT THAT YOU DON 'T HAVE A R ENEWED OBJ EC TION SUG GESTS UNDER T HE P RECE DE NT OF THE 11T H CIR CUIT AND I BELIEVE OF THIS COURT ALS O , THA T I T D IDN' T PLA Y I N T HE C OURTROOM THE SAME WAY I T LOOKS ON P AP ER . I THINK YOU HAV E T O T AK E - - WELL, I DON'T T HINK , U ND ER T HE STATU TE, THAT'S TWO, YOU HAVE TO TAKE I NT O A CC OU NT THE FAC T T HAT E XP ER IENC ED T RIAL C OUNS EL DID NOT RENEW T HA T OBJ EC TION . THERE MUST BE A R EA SO N F OR I T , A ND I WOU LD SUG GE ST T HAT T HE REASON HE DIDN'T REN EW THA T OBJECTION I S BECAUSE IT W ASN' T HURTING HIM BECAUSE I T D ID N' T COME OUT IN THE S AM E W AY T HA T LOOKING AT A COLD R EC OR D LOOKS.

OKAY. SO NONE OF THO SE G O T O THE SUBSTANCE OF HER CLAIM THAT THIS IS SO OUTRA GE OU S AND THA T EVERYBODY KNOWS BETTE R? Y OU'VE NOT I N ANY W AY HIN TED THAT THIS IS APPROPRIATE?

I'M GETTING THERE.

IN A NY O F T HOSE?

I THINK , JUSTI CE LEW IS , T HAT T HIS ARG UM EN T , W HI LE PER HAPS EXTREME OR T HI S CROSS-EXAMINATION, THIS IS NOT A CLOSING ARGUMENT. IT IS C ROSS-EXAMINATION.

EXACTLY.

FIRST OF ALL I T HINK I T I S L EGITIMATE CROSS-EXAMINATION UNDER THE CONTEXT O F T HIS CAS E . T HIS DEF ENDANT BROUGHT IN A MINISTER TO T ES TIFY ABO UT H OW HE HAD REF OR ME D HIS L IF E AND H AD BEC OM E R EL IG IO US AND THI S AND THAT AND I T HINK YOU H AV E TO LOOK AT THE WHO LE T HING I N FAIRNESS AND I N T HE C ON TE XT OF THE C AS E.

IN THE C ONTE XT OF THE C AS E, THEY ALSO A RG UE THA T , YOU K NO W , THE PROSE CU TOR A CT UA LLY STARTED T HI S AND I N V OI R DIR E OF T HE P OTEN TI AL J UROR S , THA T THEY START ED THI S DOW N T HI S PATH O F R EL IGIO US KIN DS O F ARGUMENTS, AND S O WHA T I S YOU R TAKE THE N O N T HE P ROSE CU TO R STARTING THI S O UT I N VOI R DIR E EXA MINATION A ND THE N H OW T HA T PLAYS I NTO WHAT W EN T O N DUR IN G THE CROSS-EXAMINATION OF THE MINISTER?

M Y TAK E ON T HE CLA IM T HA T THIS STARTED IN VOIR DIRE I S THAT THAT'S BASED O N A N O UT O F CONTEXT AND M ISLEADING SUGGESTION OR INT ERPR ET ATION OF WHAT A CT UALL Y H AP PENED H ERE IN VOIR DIRE. WHAT ACTUALL Y HAP PENE D I S FOUND A T P AG E 8 82 O F T HE RECORD , A ND I T I S SET O UT I N A FOOTNOT E THAT APPEARS O N P AGE 17 OF THE PET ITIO N. I DON'T WANT TO P ARAPHR AS E I T AND READ THE WHOLE T HING , B UT THE B OTTO M LIN E I S THE S TATE I N V OIR DIRE IS TELLI NG PERSPECTIVE JUROR S T HA T Y OU ARE NOT DOI NG ANYTHING IMPROPER OR DISRE SP EC TING T HE COURT BY TELLING THE COU RT WHAT YOU R R EL IG IOUS B ELIEFS ARE WITH RESPECT TO THE DEATH PENALTY . THAT'S A FAR C RY F ROM S AYIN G THAT S OM EH OW W E CAN TRA NS FORM THIS INTO SOME SORT OF A N ARGUMENT THAT T HE BIBLE R EQUIRED ANTHONY FARIN A TO B E SENTENCED TO DEATH. THAT'S NOT THE A RGUMENT T HA T WAS MADE A ND I T I S A N IMP ROPE R AND I NA CC URAT E I NT ERPRET AT IO N .

L ET M E GET T O M Y C ON CE RN . MY CON CE RN I S H ER E Y OU 'V E G OT T HIS SITUATION IN THIS C AP IT AL CASE WHERE THE PROSECUTO R I S ASKING THI S W IT NESS , THE NEX T V ERSE DEALS WITH THE PROSECUTOR, DOES IT NOT ? WHAT DOES HE SAY? ANSWER FOR THE R UL ERS H OLD N O TERROR FOR THOSE WHO D O I S RIGHT BUT FOR THOSE W HO DO WRONG. DO YOU WANT TO B E F REE FRO M FEAR THAT T HE O NE I N A UT HORI TY A ND DO WHA T I S RIGHT Y OU W ILL , HE WILL COMMEND YOU I N T HE N EXT VER SE . QUESTION . W HERE HE IS G OD 'S S ER VA NT T O DO Y OU R GOO D , B UT I F YOU D O WRONG, B E AFR AI D . HE IS G OD 'S SER VA NT , A GE NT T O WRATH, T O BEI NG P UNIS HE D TO THE W RONGDO ER . NOW, I THINK I T S EE MS T O M E THAT I F A N OBJ ECTI ON W AS M AD E T HAT THA T W OU LD C LE AR LY B E ERROR TO ALL OW T HAT T O C OM E IN FOR A LL S OR TS O F BAS ES . SO THE NEXT Q UEST ION I S , I S DOES THAT - - T HA T STATE MENT BY THE PRO SE CU TION , W HICH THE PROSECUTION BRINGS OUT ABO UT HIS POWER , DOE S T HA T - - I S T HAT SO - - REACH D OW N T O THE VERY BED RO CK O F T HI S PROCEEDING TO CAUSE YOU TO B E CONCERNED ABOUT WHETHER IT I S RELIABLE? I MEAN, ISN'T THA T W HAT W E HAVE GOT TO F IG UR E O UT ?

YES, J US TI CE W EL LS , I T IS , AND, NO , I T DOE S NOT C OR RUPT THE PROCEEDING TO THE P OINT THAT M R. FARIN A I S ENT ITLED T O ANY REL IEF . THIS IS ONE O F T HO SE A RG UM ENTS CERTAINLY THAT I WOULD RATHER THE PRO SECU TION H AV E N OT M AD E.

CHIEF JUSTICE: AND I WANT TO MAKE SURE WE A RE C LEAR O N THIS BECAUSE I'M V ER Y CONCERNED , A GA IN , A ND I N D EATH CASES IT IS ENTIR EL Y APPROPRIATE TO ALLOW PEO PLE T O GET ON THE STAND TO T AL K A BOUT SOMEONE FINDING REL IG IO N A ND CERTAINLY YOU CAN CROSS -EXAMINE THEM ABOUT THIS IS KIND OF A , YOU KNOW , J AI L HOUSE CON I NV ES TIGA TION , BU T I HAVE NEVER S EE N A W ITNE SS BEING C RO SS -E XA MI NED ABOUT THE BIBLE , A ND T HI S , Y OU K NO W , AND I T GOES O N ABO UT , Y OU KNOW , WHEN CHRIST WAS ON THE CROSS THERE WAS A C ON DEMNED FEL ON BEHIND HIM THAT REPEN TE D A ND ACCEPTED CHRIST BUT H E SAID HE WOULD SEE HIM IN P ARADIS E A ND TO ME IT IS BAS ICALLY T HE W AY I READ T HIS I S T HA T H E I S USING RELIGION T O S HO W T HA T , IN FAC T , C HR IS TIAN R EL IG IO N WOULD S AY Y ES , L ET'S I MP OS E T HE DEATH PEN ALTY AND Y OU W IL L GET Y OUR F ORGI VENE SS I N THE AFTER LIFE AND I DON'T SEE H OW THAT POSSIBLY COULD HAVE RELATED TO ANY THING T HAT O CCURRED O N DI RE CT E XAMI NA TI ON.

JUSTI CE P ARIENTE , I N RESPONSE T O T HA T , A COM ME NT I WAS GOING TO M AK E O R W AS LEADING UP TO A FEW MOM EN TS AGO IS T HE D EF ENDA NT C AN NO T AND SHOULD NOT BE A LLOW ED T O INTRODUCE RELIGIOUS T ES TIMO NY IN THIS C OURT O F - - S OR T O F TESTIMONY AND I'M TALKING ABOUT THE DIRECT EXAMINATIONOF THIS MINISTER N OW , BUT I F THE DEFENDANT IS GOING TO G O DOWN THAT R OA D , T HE S TATE H AS TO BE ALLOWED TO F OL LO W .

WELL, WHAT IN T HA T T ESTIMONY WAS -- W HA T W AS S AI D DURING THE DIRECT E XA MI NATION OF THIS MINISTE R BEY ON D THA T MR. FARINA HAD, IN F AC T , GOTTEN R ELIGIO N , C ONVE RTED T O C HRISTIANITY, WAS A M EM BE R O F SUCH AND S UC H C HU RCH? I MEAN , D ID THE D IREC T EXAMI NATION GO I NT O A NY SPECIFICS ABOUT THE B IBLE ? > > I D ON'T R ECAL L THAT I T DID . J USTICE QUINCE, AND I'M NOT GOING TO -- THE RECORD S AY S WHAT IT SAYS. I DO NOT RECALL THAT IT DID G O INTO THAT DEGREE OF SPE CIFICITY.

OKAY.IF IT D IDN'T GO INTO THE DEGREE OF S PE CIFICI TY O F G OING INTO VERSES OF THE B IBLE , W HA T WAS SAID T HAT WOU LD L EA D ONE TO G O I NT O SPE CI FI C VER SE S O F THE B IBLE ? IF T HE C ROSS -E XA MINA TION I S PROPER, BASED O N W HA T W EN T O N IN DIRECT E XAMINATION, T HE N THERE SHOULD BE SOMETHING I N A DIRECT E XAMINATION THAT W OULD LEAD , NATUR ALLY LEAD T O WHAT HAPPENED . > > I A M UNS UR E ABO UT W HY T HE PROSECUTOR CHOSE TO CROSS-EXAMINE T HIS WITNESS I N THE WAY THAT HE D ID . THERE HAS BEEN NO H EARING AND I HAVE NOT S POKE N WITH THE PROSECUTOR AND I HAVE NO KNOWLEDGE OR WHATEVER ABOUT WHY THE PROSE CU TOR CHO SE T HI S P ARTICULAR CROSS-EXAMINATION TACTIC. HOWEVER, I KEE P C OMING BAC K TO THE POINT THAT IT IS FUNDAMENTAL TO THIS C OURT'S DISPOSITION OF THE CLAIM A ND THAT IS THA T T HE RE W AS N O E RROR - - I 'M S ORRY , THERE WAS NO OBJECTION PRE SE RVIN G A NY ALLEGED ERR OR .

CHIEF JUSTICE: WELL, RELEVANCY , T HERE M IGHT BE F OU R OR FIVE OTHERS , B UT R ELEV ANCY IS O NE THA T M IG HT B E T HE F IRST ONE THAT COMES TO MY M IN D. WHAT'S WRONG WITH THE OBJECTION RELEVANCY? HOW IS IT REL EV AN T T O THE DECISIONS THAT T HI S JUR Y W AS GOI NG TO B E A SK ED T O MAK E T HA T THERE SHOUL D B E CROSS-EXAMINATION ABOUT WHAT THE B IBLE - -

I S SOM EB OD Y T RY IN G TO T ELL US SOMETHING, J US TICE PARIENTE?

A FLY O VE R .

CHIEF JUSTICE: IT IS A MILITARY FLY OVER , BUT A GA IN IN CASE THIS IS BEI NG WAT CH ED WE JUST H EA RD S OM ETHING F RO M ABOVE, BUT W E T HINK I T WAS - -

WE T HI NK IT WAS A JET .

CHIEF JUSTICE: I N ANY EVENT TO BRING THE BIBLE AND ACTUALLY CROSS-EXAMINE. WHAT'S WRONG WITH THE RELEVANCY O BJECTION BECAUSE YOU ARE SAY ING IT W AS N' T PROPERLY P RE SERV ED? I MIGHT GO ON TO S AY A NY PREJUDICIAL, YOU KNOW , OUT WEIGHS THE PRO BA TI VE V AL UE BUT WHAT IS WRONG W IT H RELEVANCY ? > > RELEV AN CY I S C ER TA INLY A LEGITIMATE O BJ ECTION T O M AK E. I T DOES NOT P RESERV E T HE CLA IM THAT IS BEFORE T HI S C OU RT . IF THE C LA IM - -.

CHIEF JUSTICE: THE Q UESTION IS ONCE IT IS THERE , W HY O N EARTH W OULD N'T A PP ELLATE COUNSEL RAISE T HIS? I MEAN, THIS IS PRE TTY OUTRAGEOUS STUFF HERE AND I GUESS WE'LL HAVE TO LOOK AT THE TEN ISSUES THA T WERE RAISED WITH THE F IVE S UBCL AI MS TO SEE W HE THER T HE Y W ER E EQUALLY, YOU KNO W , REA LL Y MERIT ORIOUS CLAIMS O R WHE TH ER THIS WAS J US T - - OR D O W E REMAN T HIS F OR SOM E KIN D O F HEARING TO FIN D O UT W HY T HE APPELLATE COUNSEL DIDN'T RAISEIT?

JUS TICE P ARIENTE , A GAIN , I DON'T WANT T O I NVEN T S TR AT EG Y FOR THE APP ELLA TE C OUNSEL I N THIS CASE, BUT I WOULD POI NT OUT , AND I T HI NK I T BEA RS REPET ITION THAT T HE PROPORTIONALITY ISSUE W AS EXTREMELY, WAS V ER Y H OTLY CONTESTED ON THE R ESEN TENC IN G APPEAL, T HAT WAS T HE F OC US O F M R. DEE'S ARGUMENT AS I R EC AL L IT, AND I THINK W E H AD O THER ISSUES THAT CAME U P , BUT M Y M EMORY OF T HI S ARGUM ENT I S THAT PROPORTIONA LITY WAS T HE ISSUE AND THAT HE FOCUS ED O N THAT, A ND I K EE P , AGA IN , COMING BACK TO THE C OM MENT S THAT WERE M ADE DURING THE OPENING A RGUM EN T T HAT T HI S COURT, THE U.S. SUPREME C OURT , THE 1 1TH CIRCUIT , EVE RY C OU RT TO CONSIDER THE ISSUE H AS SAI D THAT PIC KING I SS UES I S W HA T A PPELLATE L AWYE RS D O , AND I F THIS WAS A N I SSUE LIK E H EATH , L IKE T HE HEA TH V J ONES CAS E FROM THE 11T H CIRCU IT W HE RE THERE WAS O NE ISS UE , T HA T WAS TAK EN U P , AND ULT IMAT EL Y MR. HEATH WAS EXECUTE D , T HE RE WAS A FIN DING C IT ED IN M Y BRI EF W IT H JUD GE EDM ON DSON 'S C ONCURRING OPINION IN THE DENIAL OF RELIEF , BUT I F JEF F D EE HAD R AI SED ONE O BJECTION ON APPEAL FOR T HE R ESEN TENCIN G TO THIS COU RT HAD HAD A B UN CH OF PAGES LEFT O VER A ND H AD N' T RAISED THIS CLAIM WE WOULD HAVE SOMETHING TO TALK ABOUT. IN THIS P AR TI CU LA R SITUATION, HOWEVER, WE HAV E A L AW YE R W HO PICKED WHAT HE T HO UGHT WER E THE W IN NE RS . H E WAS O NLY A COUPL E O F V OTES SHORT FROM HAVING A W IN NE R O N PROPORTIONALITY, TOO, BY T HE WAY. AND, AGAIN , T HI S I S NOT FUNDAMENT AL E RR OR U NDER FARRE LL THIS IS N OT FUNDAMENTAL ERROR , I T I S ONE OF THOSE THINGS I KNOW A M ADE A COMMENTS A COUPLE OF T RI PS UP HERE A GO, I T I S ONE OF THE THINGS I WISH THEY WOULDN'T DO. I WOULD RATHER T HE PROSECUTOR NOT DONE THIS. BUT H E DID , AND W E A RE A LL STUCK WITH IT. BUT IN THE FIN AL A NA LY SI S , THI S I S N OT FUN DA ME NT AL E RROR UND ER THE FACTS O F T HI S CAS E THAT R EACH ES D OW N I NTO T HE HEART OF THIS S ENTENCE AND REQUIRES ANY SORT OF REL IE F WHATSOEVER.

CHIEF JUSTICE: LET'S GO BACK TO WHETHER I T W AS E RR OR , BECAUSE, AGAIN , I F - - I'M NOT S URE I S TILL U ND ER STOO D W HY I T WASN'T P RE SE RV ED B Y THE OBJECTION TO RELEVANCY .

WELL , J US TI CE PAR IE NT E , A SPECIFIC OBJECTION IS NECESSARY IN ORDER TO PRE SE RV E A CLAIM FOR A PPEL LATE R EV IE W. WE ALL KNOW T HAT. THERE I S N O D IS PUTE ABO UT T HA T .

CHIEF JUSTICE: AND YOU K NOW THE NUMBER OF C AS ES WHE RE THE C LAIM IS R AI SE D , A ND THE Y SAY , WELL, THAT WASN'T T HE R IGHT ARGUMENT. SOMETIMES WE SAY YES, SOMETIMES WE SAY NO BUT REL EVANCY IS NOT LIKE IT IS TOTALLY OUTSIDE THE MARK FOR WHAT THE PROPE R O BJECTI ON WAS .

IF HE WAS G OI NG T O PRE SE RV E THE ISSUE THAT HE H AS BROUGHT UP TO THIS COURT, I W OULD SUGGEST THAT THE PROPER OBJECTION WOULD BE T HE OBJECTION AND ISSUE C ON TAINED IN THIS P ETIT IO N , NOT A NEBULOUS N ON SPEC IFIC OBJECTION TO RELEV ANCY THAT'S A G ENER AL OBJECTION. THIS WAS NOT A SPE CI FIC OBJEC TION.

IF HE HAD JUS T P RESE NT ED THIS MINISTER T O S AY H E H AD R EFORMED WHO HE WAS A S A PERSON DURING THE PEN ALTY PHASE THAT WAS APPROPRIATE AND A RELEVANT I SSUE FOR THE JURY'S CONSIDERATION, IN THE PENALTY PHASE, AND DID NOT RAISE THE ISS UE B UT S AY , W EL L , HE H AS R EPEN TE D A ND B ECOM E A CHRISTIAN. I FORGIVE HIM. WE SHOULD ALL F OR GI VE HIM . IF THE REVEREND DI D NOT MAKE A STATEMENT SOMEWHAT TO THAT EFFECT, WHAT RELEVANCE DID T HIS CIT ATION T O R OMAN S H AV E TO ANY ISSUE R AI SE D IN THE DIRECT EXAMINATION OF THE PASTOR? AND I F N OT , T HE N A S J USTI CE PARIENTE SAYS , W HY I SN'T THE RELEVANCY O BJ ECTI ON SUFFICIENT?

WELL , JUSTICE B ELL , A GAIN I HAVE TO GO BACK TO T HI S B EI NG CROSS-EXAMINATION, A ND CROSS-EXA MINATION IS, AS W E KNOW , A TIM E W HE N A W IT NESS ' KNOWLEDGE, BASE OF KNOWL ED GE , AUTHORITY AND SUC H AS THAT I S TESTED. I W OULD S UGGEST THAT , A GAIN , WHILE I SAID I W IS H H E H AD N' T DONE THIS.

HE WASN'T PRESE NTED A S A N EXPERT WITNESS?

N O , N O , I DID N' T MEA N T O IMPLY THAT . BUT , AGAIN , WHAT I W OULD SUGGEST IS THAT T HI S I S INSUFFICIENTLY P RE SE RV ED U ND ER THE CON TEXT O F THI S C ASE. ALTERNATIVELY IT IS NOT FUNDAMENTAL ERROR A ND L ET 'S DON 'T FORGET WE'VE GOT TO K EEP COMING BACK TO THE NOTION THI S IS AN APP ELLA TE INEFFECTIVENESS OF C OU NS EL CLAIM. THIS IS NOT A S UBST ANTIVE CLAIM LIKE WE WOULD SEE O N DIRECT APPEAL.

I N T HAT V AI N , T O G ET THE B ROADER C ON TEXT IS T HI S A CLAIM THIS IS APPELLATE COUNSEL ON APPEAL ON THE RESENTENCING?

YES, SIR.

WAS THAT THE SAME COUNSEL THAT REPRESENTED THE DEF ENDA NT ON THE O RIGI NA L APPEAL?

NO , DIF FE RE NT C OU NS EL . I BELIE VE T OM M OTT R EP RE SENT ED MR. FARINA AT T RI AL I N THE O RIGINAL PROCEEDING.

SO THIS IS A RESEN TENC IN G NO GUILT ISSUES?

CORRECT.

AND THERE W ER E 1 0 O R 1 2 ISS UES P RESENTED O N A PP EA L ANYWAY?

IT DEPENDS ON HOW Y OU C OUNT THEM. 10 NUMBERS, AND THERE W ERE ACTUALLY A COUPLE OF STRAYS THAT WERE IN THERE AS W EL L . SO 12 ISSUE S I BEL IEVE T HE BRIEF WAS 9 6 P AG ES , AND I WOULD AGA IN COM E B AC K TO T HE P OINT THA T APP EL LATE COU NS EL IS RES PONSIBLE FOR C OMING T O THIS C OURT W IT H T HE B EST I SSUES THAT HE COULD PRE SE NT .

LET ME ASK YOU T HI S BEC AUSE WE HAVEN'T DIS CUSSED P RE JUDICE A T ALL. THIS IS -- W E'VE ALL B EEN , I THINK, DISCUSSING T HE D EFICIENT P ER FO RM ANCE P RONG. IF WE H OLD DEFIC IE NT P ERFORMANCE ON APPEL LA TE COUNSEL WHAT ARE THE STANDARDS IN DETERMINING THE P RE JUDICE PRONG? FOR A PP EL LATE C OUNSEL?

IT WOULD BE THE S AM E A S I N THE CON TEXT OF A T TRI AL W HI CH WOULD BE A REA SONA BL E PROBABILITY OF A DIFFERENTRES ULT AND I WOULD SUGGEST THAT UNDER THE FACTS OF T HIS CASE, WHICH ARE HEAVILY , HEAVILY A GG RAVA TE D , THE RE I S NO REA SO NABL E P RO BABI LITY O R REASONABLE POSSIBILITY.

SO WE WOULD H AVE H ELD I F COUNSEL WOULD HAVE RAISED THE ISSUE THAT IT WOULD H AVE BEE N HARMLESS ERROR ?

THIS I S WHERE W E A RE GETTING -- THE PART I A M GETTING CROSSED UP HERE.

COUNSEL WOULD HAVE RAISE D THE ISSUE OF INT RODUCTION OF THIS T ES TI MONY O N CROSS-EXAMINATION, SO WE WOULD H AVE HAD TO HOL D THA T I T W AS HARMLESS ERROR TO INTRODUCE I T B ECAUSE THE O THER EVI DE NCE WOULD HAV E L ED T O OR DOE SN'T UNDERMINE OUR CONFI DENCE IN THE SENTENCE OF D EATH ?

YES, YOUR HONOR . AS FAR AS , WELL , I'M OUT O F TIME.

CHIEF JUSTICE: YOU S AID SOMETHING I JUST WANT TO MAK E SURE YOU SAID THAT W E' VE HEL D THAT APPELLATE C OUNS EL I SN'T OBLIGATED T O R AISE E VE RY M ERITORIOUS ISS UE . IT SEEMS TO ME I R EM EM BER T HAT WE'VE S AID THA T COU NSEL CERTAINLY SHOULDN'T JUST RAISE EVERY ISSUE WHETHER IT IS M ERITORIOUS OR NOT . SO WE GO BAC K T O THI S Q UEST IO N OF D O WE , IF W E H AV E A CON CERN AND WE DON'T THI NK I T CAN B E RESOLVE D A S A M ATTER O F L AW D O WE REMAN THI S FOR A N EVIDENTIARY HEARI NG? YOU CAN ANSWER THAT.

I WAS H OPING I W AS G OING TO G ET TO ANSWER THAT.

I HAVE O NE M OR E QUE STION.

I AM N OT E NTIR EL Y SUR E , J USTICE PARIENTE, ABOUT WHAT THE ANSWER IS I N THE 12 Y EA RS I HAVE BEEN HERE I H AV E N OT SEEN IT. I SUPPOSE THAT W OULD CERTAINLY BE WITHIN THIS C OURT 'S P UR VIEW TO DO. I H AVE N EVER SEE N AS L ON G A S I HAVE BEEN PRACTICING IN T HI S STATE AN EVIDE NT IA RY HEA RI NG ON APPELLATE I NE FFECTIVE NE SS IN THE STATE COURT S YS TE M.

CHIEF JUSTICE: BECAUSE WE USUAL LY LOOK AT IT AND SEE WHETHER THIS WOULD HAVE RESULTED IN A REVER SA L I F IT HAD BEEN RAISED O N A PP EA L T HA T WOULD BE WHAT WE LOOK T O?

YES, MA'AM, AND THIS IS O NE OF THOSE KIND OF UNUSUAL CIRCUMSTANCES WHERE W E HAV E P ERHAPS OR WHERE W E H AV E ISSUES OF COU NS EL 'S T HO UGHT PROCESSES AND SUCH AS THAT THAT PLAY INTO THIS THAT W E DON'T TYP ICALLY H AV E .

EACH TIME THAT W E'VE GONE TO THE SUBSTAN CE O R W HE THER THIS WAS ERROR , I T SHI FT ED BACK TO PRO CEDURA L E RR OR . HAVE YOU HAD THE OPPORTU NITY TO ADVISE U S O F EVERYTH IN G FROM THE S UB STANCE S TAND PO INT AS TO WHY THI S W AS N OT ERRONEOUS? LET'S M AK E S UR E YOU HAV E.

I DIDN'T U NDERSTAND THE LAST PART OF YOUR QUESTION , JUSTICE.

HAVE YOU HAD THE OPPORTUNITY TO SAY TO U S W HY THIS WAS NOT ERR ONEOUS FRO M A SUBSTANTIVE STAND POIN T, W HA T OCCURRED HERE?HAVE YOU HAD T HE OPP OR TU NITY?

I THINK I'V E C OV ERED EVERYTHING I'VE GOT TO COVER.

OKAY.

CHIEF JUSTICE: THANK YOU. NOW YOU ARE RELIEFED FROM THE REST OF THE QUE STIONS. ALL RIGHT . MISS PARME R? VERY SHORT REBUTTAL TIME.

YES, THAN K YOU, YOUR H ON OR. A COUPLE OF POINTS I WANT TO PICK UP. NUMBER ONE ON T HE REL EV ANCE OBJECTION , OPP OSIN G C OUNS EL REFERRED TO THE R OD RI GU EZ DECISION THAT CASE IS D ISTINGUISHABLE BEC AU SE I N READING , F AC TU ALLY R EADI NG THAT THE OBJEC TION WAS A RELEVANCE O BJECTION TO AN IDENTIFICATION. IDENTIFICATION IS ALWAYS REL EVANT, AND S O T HA T C ASE I S DIS TINGUISHABLE.

LET ME ASK Y OU THE S AM E QUESTION I ASKED T HE STA TE , WHICH IS WE' VE R EA LL Y B EE N TALKING ABOUT T HE D EFIC IE NT P ERFORMANCE PRONG, ASS UMIN G W E PASS THAT AND YOU D IS CUSS T HE PREJUDICE PRONG AND YOU HAVE TO S HO W THA T H AD C OU NSEL RAISED IT, THAT WE WOU LD H AVE REVERSED ON THAT ISSUE, AND WOULD HAVE FOUND IT NOT T O B E HARMLESS ERROR.

A BSOL UTELY, JUS TICE. THIS CASE I S PAR TICU LA RL Y COMPELLING CASE FOR THE DEFENSE AND IT IS NOT AN OVERWHELM ING DEATH C AS E. FIRST OFF , A S J USTI CE ANS TEAD POI NTED OUT I N H IS D IS SE NT O N THE A PPEA L , ANT HONY F AR IN A WAS