Merrit Alonzo Sims v. State of Florida
Docket Number: SC04-1879

GOOD MORNING. MAY IT PLEASE THE CO URT. MY NAME IS BEN DUKE. I AM WITH COVINGTON AND BURLING, AND WE REPRESENT APPELLANT MERIT SIMS ON DENIAL OF HIS RULE 3.850 MOTION BY THE MIAMI-DADE CIRCUIT COURT IN MIAMI -DADE COUNTY. WITH ME ALSO AT COUNSEL TABLE IS SC OTT DANZIS O F M Y FIRM. UNLESS THE COURT HAS SPECIFIC OTHER QUESTIONS ON OTHER AREAS, I PLAN TO ADDRESS NUMBER THREE IN MY BRIEF , FIRST OF ALL , COUNSEL'S INEFFE CTIVE ASSISTANCE IN FA ILING TO OBJECT TO OR CHALLENGE THE ADMISSION OF DOG AL ERT TESTIMONY AT THE GU ILT PHASE OF MR. SIMS'S TRIAL A THAT IS PO INT 1- A.

JUSTICE: DID YOUR FIRM ACTUALLY DO THE 3.850 ?

YES, WE DID.

CHIEF JUSTICE: I W ASGOING TO GET TO THIS AFTERWARDS. YOU ARE DOING , THE FIRM HAS BEEN REPRESENTING MR . SIMS PRO BONO ?

THAT'S RIGHT.

CHIEF JUSTICE: WE APPRECIATE THAT SERVI CE.

THANK YOU, YOUR HONOR. THE SE COND ISSUE I W OULDLIKE TO ADDR ESS IS INEFFECTIVE ASSISTANCE OF COUNSEL IN FAI LING TO OBJECT TO IMPROPER PROSECUTORIAL REMARKS IN THE SUMMATION AT THE GUILT PHASE MR . ZUCH LS'S TRIAL. THAT IS .-- IN MR . SIMS'S TRIAL. THAT IS.1 -C , AND FINA LLY THE SERIES OF WHAT WE ADMIT ARE ABJECT FAIL URES BYE-BYE MR. SIMS 'S -- BY MR. SIMS 'S PENALTY PHASE LAWYER , A NDTHAT COULD HAVE CONVE RTED THE JUDGE 'S AL BEIT NARROW RECOMMENDATION OF THE DE ATH SENTENCE.

JUSTICE: LET ME TAKE YOU TO AN ISSUE THAT YOU ARE GOING TO DISCUSS , IS IT YOUR POSITION THAT DRUG HE WILL VANS WAS IRRELEVANT , THE TOTALITY OF THE DRUG EVIDENCE?

WELL, YOUR HONOR, I THINK THAT THE EVID ENCE WAS OFFERED TO PROVE A MOTIVE FOR THE KILLING OF OFFICER STAFFORD. WHICH WAS COMPLETELY ABSENT, ONCE YOU TOOK A WAY THE DRUG ALERT OR THE NARCO TICS TRAFFICKING THE ORY .

AS I UNDERSTAND THIS DRUG ALERT WAS ON THE BASIS OF A SNIFF THAT WAS TWO D A YS AFTER THE DEFENDANT WAS APPREHENDED?

WELL , I BELIEVE IT WAS TWO DAYS A FTER THE KI LLING ACTUALLY OCCU RRED , AND T HECAR HAD BEEN IMPOUNDED.

JUSTICE: THAT'S CORRECT.

YES. THIS TOOK PLACE, NOT ONLY DID IT T AKE PLACE TWO DAYS AFTER, THE DOG THAT W ASTAKEN OUT TO INS PECT THE CAR ACTUALLY HAD TO DO TWO PASSES AR OUND THE CAR , BEFORE FINALLY ALE RTING TO THE JOINT BETWEEN THE F RONT SEAT AND THE BAC K OF THE F RONT SEAT. WHICH AS WE AR GUE IN OTHER AREAS OF OUR BR IE F --

JUSTICE: WHERE WA S THE CAR IMPOUNDED AT THAT POINT . IS THAT ESTABLISHED IN THE RECORD?

I BELIEVE IT WAS IN POLICE CUSTODY, YOUR HONOR, BUT I AM NOT SURE EXACTLY WHAT THE LO CATION WAS.

CHIEF JUSTICE: NOW , WHAT WE HAVE HERE IS IT WAS , THIS POINT WAS D E NIED WITHOUT AN EVIDENTIARY HEARING.

THAT'S CORRECT .

CHIEF JUSTICE: SO YOUR ALLEGATION, I WANT TO BE CLEAR ABOUT THIS, TOO, AS TO WHETHER THE DOG ALERT EVIDENCE SHOULD HAVE BEEN CHALLENGED THAT THE D OGWASN'T RELIABLE , B UT I AM MORE INTE RESTED IN T HESECOND PA RT, IS WHETHER THE ISSUE WAS, IS R AISED THAT THE VERY RELEVANCE I OF THIS -- RELEVANCY OF THIS , SINCE NO DRUGS WERE EVER FOUND SINCE IT WASN'T HIS VEHICLE , WAS THAT RAIS ED BY TRIAL COUNSEL , AND IS THAT PART OF YOUR ALLEGATION OF DEFI CIENT PERFORMANCE IN THE G UILTPHASE?

YES. THERE WAS NO OBJECTION TO THE DOG ALERT EVIDENCE PER SE, BY COUN SEL, AND IN FA CT, THIS COURT ON DI RECT APPEA L , THE COURT HAS ALREADYDECIDED THAT ISSUE WITH RESPECT TO ADMISS ION OF THE PAROLE OFFICE R'S TESTIMONY , WHICH WAS ALSO ADMITTED, AND THIS COURT NOTED IN ITS OPINION ON DIRECT APPEAL , THAT COUNSEL HAD FAILED TO MAKE ANY OBJECTION TO THE ADMISSION OF THE DOG ALERT TESTIMONY , NOT ONCE BUT TWICE IN THE INITIAL OFFER , AND THEN WHEN T HEY LEAR NED THAT THE PAROLE EVIDENCE , THE PAROLE OFFICER'S TESTIMONY WAS GOING TO B E OFFERED IN CONNECTION WITH THE DOG ALERT , THEY FAILED TO MAKE A MOTION TO ST RIKE THE DOG ALERT TESTIMONY, REALIZED EX TENT OF THE PREJUDICE THAT THEY HAD OPENED THE DOOR TO, BY NOT OBJECTING TO ITS ADMISSION IN THE FIRST INSTANCE. SO THERE WERE REALLY TWO FAILURES THERE . THIS EVID ENCE , IT A FUNDAMENTAL PART OF OUR ARGUMENT HERE , IS THAT THIS EVIDENCE WAS ESSENT IALLY THE ONLY EVIDENCE OF ANY MOTIVE , OTHER THAN SELF-DEF ENSE , THAT THE STATE WAS AB LE TO COME UP WITH IN THIS TRIAL. ABSENT THE SPECULATION THAT MR. SIMS'S HAD BEEN TRANSPORTING NARCOTICS AT THE TIME THAT HE WAS PULLED OVER, THERE WAS IN FACT, N O EVIDENCE WHATSOEVER , TO EXPLAIN WHY ON E ARTH , H E WOULD HAVE KILLED OFFICER STAFFORD UNDER THE SITU ATION, HAD HE NOT BEEN UNDER SOME KIND OF TH REAT TO LIFE AND LIMB. THERE WAS NO EYEWIT NESS TESTIMONY CONTRADICTING MR . SIMS'S ACCOUNT OF THE EVENTS , AND HIS CL AIM THAT OFFICER STAFFORD WAS, IN FACT , CHOKING AND THREATENING HIS LIFE.

JUSTICE: IF THERE HAD BEEN AN OBJECTIO N TO THE DOG, WHAT FAILURE DID THE STATE MAKE IN PROVING THE QUOTE/UNQUOTE CREDIBILITY OF THE DOG? IN OTHER WORDS WOULD ANY OBJECTION, IF MADE , HAVE BEEN SUSTAINED ON THE RE CORD BEFORE US?

YES . OUR ARGUMENT IS IN THE FIRST INSTANCE, THAT HAD COUNSEL OBJECTED TO THE PROFFER BY THE STATE SUPPORTING THE PURPORTED REAL ABILIT Y OF THE DOG'S ALERT, ITSELF , THAT THEY WOULD HAVE BEEN ENTITLED AT LEAST TO ALL OF THE IN FORMATION CONCER NING THE DOG'S TR AINING AND TR ACK RECORD. THIS COURT HAS HELD , AND I THINK - -

JUSTICE: WHAT I AM SAY ING,IS THERE ANY EVIDENCE THAT THE DOG WAS UNRELIABLE , AND IF THESE HOOP S HAD BEEN GONE THROUGH, THAT THE DOG TESTIMONY WOULD HAVE BEEN ADMITTED ANYWAY ?

THERE WAS NO EVIDENCE THAT THE DOG WAS REL IABLE.THERE WAS AN INSUFFICIENT SHOWING BY THE STATE AT TRIAL, THAT THE DOG WAS RELIABLE UNDER THE STANDARDSTHAT THIS COURT APP LIES .

CHIEF JUSTICE: YOU DIDN'T HAVE AN EVIDENTIARY HEAR ING ON THE ISSUE, BUT IF WE G OTTHROUGH THAT, LET'S JUST ASSUME THAT THE DOG WAS RELIABLE. THERE IS A GO OD S NIFF ER , AND THE METH I SON CASE HAS - - THE MA THISON CASE HAS N OTBEEN FOLLOWED BY OTHER COURTS IN THIS STATE , MY NEXT ISSUE , THE NEXT ISSUE WOULD THEN BE IF THE RELEVANCY OBJECTION HAD BEEN RAISED, WOULDN'T WE HAVE TO , IF WE D ECIDED THE MATTER OF LAW THAT IT STILL WOULD BE ADMISSIBLE, THEN THERE IS NO PREJUDICE , SO ADDR ESS THAT QUESTION. IN OTHER WORDS, AS SUME RELIABILITY OF THE DOG. WHAT ARGUMENT SHOULD HAVE BEEN MADE TO KE EP THAT EVIDENCE OUT COMPLETELY ?

WELL , THE ARGUMENT T HAT SHOULD HAVE BEEN MADE WAS THAT THIS EVIDENCE THAT WAS OR SO-CALLED EVIDENCE THAT WAS BEING OFFERED, WAS WILDLY SPECULATIVE , AND THE PREJUDICIAL IMPACT OF IT ON MR. SIMS'S DEFENSE AT TRIAL , VASTLY OUTWEI GHED ANY PROBATIVE VALUE THAT IT COULD POSSIBLY HAVE , GIVEN THAT THE ENTIRE THE ORY THAT THE STATE WAS OFFERING , W ASBASED ON NOTHING MORE THAN A WHIFF, KNOW THE HE HAVE A NDHUMAN WH IFF O R A HUMA NLY DETECTABLE WHI FF BUT THE WHIFF OF A DOG THAT DIDN'T FIND ANY THING.THERE WAS NO DISPUTE, A NDTHERE IS NO DISP UTE IN T HERECORD THAT THERE WERE NO DRU GS. MR. SIMS HAD NEVER BEEN CON VININGTED OR -- CONV ICTED OR ARRESTED FOR ANY DRUG-RELATED OFFE NSE.

JUSTICE: WHAT DO WE K NOW ABOUT THE TRIAL COU RT'SBASIS FOR DEN AGO EVIDENTIARY HEARI NG ON THIS CLAIM? -- FOR DENYING AN EVIDENTIARY HEARING ON THIS CLAIM, EITHER FROM A NYINDICATION THAT IS THE TRIAL COURT MADE OR ANY RESPONSE S THAT THE STATE MADE TO THIS ISSUE AS RA ISED IN THE POSTCONVICTION MOTION ? WHAT DO WE KNOW? WHAT DOES THE REC ORD TELL U S IF ANYTHING, ABOUT THE BA SI S OF THE TRIAL COURT NOT HAVING AN EVIDENTIARY HEARING ON THIS ISSUE?

WITH RESPECT TO THE , ARE YOU ASKING WITH RESPECT TO THE R ULE 3.850 MOTION OR THE ORIGINAL TRIAL?

JUSTICE: TO THIS ISSUE WHERE YOU ARE ARGUING ABOUT THE COMPETENCY OF COUNSEL OR NOT BEING PREPARED ON THIS ISSUE AND OBJECTING AND SO ON AND SO ON. THE ISSUE THAT YOU RAI SED IN THE POSTCONVICTION ISSUE THAT YOU ARE NOW DISCUSSI NG, WHAT DO WE KNOW ABOUT T HETRIAL COURT'S BASIS FOR NOT GRANTING AN EVIDENTIARY HEARING?WAS THERE JUST A SIMPLE DENIAL OF THIS CLAIM , OR WASTHERE ANY RESPON SE BY THE STATE TO THIS CLAIM , RESPONDING AND SA YING THIS IS A B OGUS CLAIM AND YOU SHOULDN'T EVEN G RANT EVIDENTIARY HEARING, BECAUS E THE RECORD REFUTES I T , OR IT IS NOT A LE GALLY VA LID CLAIM, ANYWAY, AND DOE SN'T STA TE ACAUSE OF ACTION , SO TO SPEAK? WHAT DO WE HAVE IN THIS RECORD THAT GIVES US EVEN A HINT AT WHY THE TRIAL JUDGE DENIED?

WELL , THE STATE D IDRESPOND TO OUR MOTION ONTHIS POINT, BUT THE COURT GAVE US NO INDICATION AS TO ANY BASIS THAT - -

JUSTICE: W HAT WAS T HERESPONSE OF THE STATE?

I BE LIEVE THE RESPONSE WAS , AND I WILL DEFER TO T HESTATE IN SPEAKING FOR THEIR ARGUMENT, BUT I BEL IEVE THE RESPONSE WAS THAT THE SHOWING WAS SUFFICIENT TO PUT THE EVIDENCE IN. IT WAS , IT WENT TO MOTIVE , AND THEY COULD HAVE SHOWED THE RELIABILITY OF THE DOG, AND SO THERE WAS NO HA RM RESULTING FR OM THIS , FROM THE ADMISSION OF THIS EVIDENCE. A POINT WHI CH WE , NATU RALLY , VIGOROUSLY CONTEND --

JUSTICE: YOU HAD TWO OTHER ISSUES THAT YOU WERE GOING TO CO VER.

YES. THANK YOU. FIRST OF ALL I WOULD L I KE TO TURN TO THE PROSECUTORIAL REMARKS VERY BRIEFLY, IF I COULD, AND JUST POINT OUT THAT AT LEAST IN THE THREE DIFFERENT AR EAS , THIS PROSECUTOR IN SUM MATION , AND THE TRIAL , USED LANGUAGE THAT VIOLATED THE STANDARDSTHAT THIS COURT HAS SET OUT IN PREVIOUS CASES , PARTICULARLY WITH REGARD TO HIS RELIANCE ON A CITECALPOINT, A CRIT ICAL COMMENT -- A CRITICAL POIN T, A CRIT ICAL COMMENT , TO TALLY OUT SIDE THESCOPE OF THE RECORD, TO UNDERMINE AND NEGATE MR . SIMS 'S SELF-DEFENSE DEFENSE , BASICALLY THAT , HE GETS REAL TIRED OF HEARING OVER HIS TWELVE YEARS AS A PROSECUTOR, ABOUT EVERY DEFENDANT WHO COMES IN SAYING THE COP W ASGOING TO KILL ME. THE COP WAS GOING TO KILL ME, AND THEN HE FOLLOWE D THAT WITH A STATEMENT THAT,WELL, IF THIS COP WAS GOING TO KILL MR. SIMS'S , HE SHOULD HAVE DONE IT A FTER , AT AN EARLIER POINT WHEN HE WAS INITIALLY HI T ON THE HEAD WITH A WALKIE TALKIE . AN OUTRAGEOUS COMMENT IN OUR VIEW .

CHIEF JUSTICE: W ERE THERE ANY OBJECTIONS MADE IN CLOSING ARGUMENT?

NO OBJECTIONS WHATSOEVER,YOUR HONOR.

CHIEF JUSTICE: SO WE DON'T KNOW BECAUSE THERE WASN'T AN EVIDENTIARY HEARING , W E WOULD HAVE TO FIRST FIND THAT SOME OF THESE COMMENTS, IF OBJECTED TO , WOULD HAVE BEEN SUSTAINED , AND THEN WE WOULD HAVE TO DECIDE IF THEY WOULD HAVE BEEN SU STAINED, THEN WHAT EFFECT, AND THEN GO BACK TO WHE THER IT WAS STRATEGIC THAT HE DIDN'T OBJECT, BUT THAT WOULD BE, SO ARE YOU ASK ING ON T HIS FOR AN EVIDENTIARY HEARING , OR THAT WE SHOULD, CAN SUMMARILY SAY THAT IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL DO YOU AGREE WITH THAT?

WELL , I THI NK ON THIS RECORD THE COURT C OULDCONCLUDE THAT THERE WAS NO CONCEIVABLE STRATEGIC BASIS .

CHIEF JUSTICE: BUT YOU DON'T KNOW OF ANY CA SES WHERE WE HAVE DONE ANYTHING LIKE THAT, DO YOU?

WELL, I BELI EVE THAT THE COURT HAS HELD THAT THERE WERE, THAT THE PREJUDICE WAS SO GREAT FROM CER TAIN PROSECUTORIAL RE MARKS , THAT EVEN WHERE THERE WAS A CURETIVE INSTRUCTION, THE ERROR --

CHIEF JUSTICE: THAT IS ON DIRECT APPEAL WHERE WE TALK ABOUT FUNDAMENTAL ERROR , BUT --

WE WOULD CERTAINLY ACCEPT AN EVIDENTIARY HEARING IF THE COURT GR ANTED ON E.

JUSTICE: LET ME MO VE YOU TO AN ISSUE OF MY CONCERN , AND THAT IS AT THE PENALTY PHASE. AND YOU MAKE A POINT IN YOUR BRIEFS CONCERNING THE PREPARATION OF COUNSEL AND THE LENGTH OF T IME. I WND ER -- I WO NDER IF YOU WOULD ELABORATE ON THE PREPARATION OF WITNESSES BY THIS DEFENSE COUNSEL FOR THE PENALTY PH ASE . WHAT DOES THE RECORD REFLECT?

WELL , MR . CA RTER, WHO HAD EXCLUSIVE RESPONSIBILI TY FOR THE PENALTY PHASE, TESTIFIED AT THE R ULE 3.850 HEARING , THAT HE HAD HAD ESSENTIALLY NO STAUNT I HAVE CON TACT WITH ANY OF THE WITN ESSES . -- SUBSTANTIVE CONTACT WITH ANY OF THE WITNE SSES.

THIS WAS THE PORTION OF THE EVIDENTIARY HEARING.

THIS WAS THE CASE, YES , WHERE THE EVIDENTIARY HEARING WAS HELD AND I EXAMINED MR. CARTER. HE ADMITTED THAT HE HAD HAD NO SUBSTANTIVE CONTACT, AND THAT HIS E NTIRE PREPARATION --

JUSTICE: HAD THE INVESTIGATOR HAD CONTACT?

THE INVESTIGATOR WAS COMPLETELY OUT OF THE PICTURE MONTHS OR POSSIBLY A YEAR BEFORE TRIAL.

CHIEF JUSTICE: HE HADN'T TALKED TO THE INVESTIGAT OR.

HE NEVER SPOKE WITH THE INVESTIGATOR AT ANY POINT.

CHIEF JUSTICE: ALL OF THESE OTHER LEADS THAT HE COULD HAVE FOLLOWED UP ON.

EXACTLY. HE FLIPPED THROUGH THE INVESTIGATOR'S REPORT WHICH WAS PREPARED ABOUT A YEAR BEFORE THE GUILT PHASE , AT A TOTAL COST OF $1,0 00 . HE HAD N O FOLLOW-UP. HE NEVER SPOKE AT ANY POINT WITH MR. G E LLER , THE INVESTIGATOR. HE NEVER SPOKE WITH ANY OF THE WITNESSES WHOM HE CALLED, AND THE EVIDENCE FROM T HERECORD OF THE PENA LTY PHASE , SHOWS EXACTLY WHAT COST THAT EXACTED ON MR. SI MS'S . HE PROCE EDED TO ESTABLISH , THROUGH HIS O WN QUESTIONING, THAT SIX OF THESE WITNESSES OPPOSED TO THE DE ATH PENALTY ON PRINCIPLE, FOR ANYONE , AND THEREBY UNDERMINED ANY CLAIM, ANY SPE CIAL CLAIM , THAT THIS PARTIC ULAR MAN DESERVES TO LIVE .

CHIEF JUSTICE: WHY WAS IT THAT HE SAID HE ASKED THOSE QUESTIONS?

HE HAD NO IDEA , YOUR HONOR.

CHIEF JUSTICE: WHY HE ASKED THE QUESTIONS?

HE ADMITTED THAT HE HAD NO STRATEGY WHATSOEVER, NO , HAD NO , IT WAS NOT A STRATEGIC CHOICE. HE SIMPLY THOUGH T IT WASGOOD ID EA. CHIEF AND THE JU DG E - -

CHIEF JUSTICE: AND THE JUDGE, DID THE JUDGE N OTCONSIDER YOUR EX PERT PUBLIC ATTORNEY ON THE ISSUE O F WHETHER IT WAS REASONABLE STRATEGY DECISION AND PREPARATION. DO YOU ALSO CLAIM THAT A S ERROR?

WE DO , YOUR HONOR , BECAUSE , AND IT IS OUR CONTENTION THAT, OF COURSE, WHILE THE ULTIMATE CONCLUSIONS OF LAW AS TO WHICH THE EXPERT WAS PROVIDING TESTIMONY AND ADMITTEDLY HE WAS A LAW YER PROVIDING LE GAL EXPERT TESTIMONY , THAT THE ULTIMATE DECISION ON THE LAW WAS THE COURT'S, BUT THE STANDARD UNDER STRICKLAND AND INEFFECTIVE ASSISTANCE GENERALLY, I S MEAS URED AGAINST THE PREVAILING PROFESSIONAL NO RMS IN THE LEGAL COMMUNIT Y, FOR CAP ITAL DEFENSE COUNSEL. OUR EXPERT , MR . PATOLSKI , WHOM THE COURT HAS PREVIOUSLY CITED IN AN EARLIER CASE, THE REICHMANN CASE, HAS , IS , SPOKE DRKTLY TO WHAT THE PRE -- DIRECTLY TO WHAT THE PREVAI LING PROFESSIONAL NORMS WERE , A T THE TIME THAT MR. CARTER WAS REPRESENT LING MR. SIMS ATTHE PENA LTY PHASE , AND T HAT IS A FACT ISSUE FOR WHICH EXPERT TESTIMONY IS ENTI RELY REASONABLE AND APPROPRIATE

CHIEF JUSTICE: MR. D UKE , YOU ARE IN YOUR REBUTTAL.

JUSTICE: IS THAT AN AREA , HOWEVER , THAT THE TRIALJUDGE , AS I UNDERSTAND IT, THAT THE ARGUMENT WAS MADE THAT THIS IS AN AREA WHERE EVEN THE TRIAL JUDGE HAD SOME KNOW LEDGE AND EXPERT ISE , AND THAT HE DOESN'T REALLY NEED TESTIMONY OF EXPERTS TO MAKE THOSE DETERMINATIONS ABOUT WHETHER --

WELL, WE WOULD CONT EN D THAT CERTAINLY THE TRIAL COURT MAY HAVE AN EXT RADEGREE OF LATI TUDE IN CREDITING OR NOT CRED ITING THAT TESTIMONY , GIVE N THAT THE JUDGE HIMSELF , MAY BRING TO BEAR A GR EAT DE AL OF EXPERIENCE AND KNOWLEDGE. BUT THAT DOESN'T JUSTIFY , AS A MATTER OF LAW , EXCLUDING THE TESTIMONY. THAT GOES , I BELI EVE, TO WHETHER THE TESTIMONY IS RELIED UPON OR CRE DITED , SOMETHING WHICH THIS J UDGEIN THIS PARTICULAR CASE , DID NOT EVEN REACH OR SAY ANYTHING ABOUT . CHIEF IF YOU WANT TO S AVE THE REST OF YOUR TIME FOR REBUTTAL. ALL RIGHT . MS. SIMMVILLE.

YES , YOUR HONOR. MAY IT PLEASE THE COURT . MARGARITA CIN ADEVILLA

CHIEF JUSTICE: I AMSORRY. I SHOULD HAVE ASKED JUSTICE CANTERO TO ANNOUNCE YOU.

I WANT TO STATE TO THE COURT BECAUSE I THINK COUNSEL HAS NOT CORR ECTLY STATED WHAT THE RECORD SHOWS, AT TRIAL WITH RESPECT TO THE 130E WE EK TRAI NING THAT THE DOG AND THE HAND LER RECE IVED , THERE WAS TESTIMONY AS TO THE FACT THAT THEY HAD B EEN TOGETHER FOR SIX YEARS. THERE WAS TESTIMONY TO THE FACT THAT THE DOG HAD GONE OUT WITH ITS HAN DLERTHOUSANDS OF TY PES .

JUSTICE: WHAT WAS THE RECORD PREDICATE FOR THEVERY WELL RANS OF THE -- FOR THE RELEVANCE OF DOG IN THE FIRST PLACE?

WELL , YOUR HONOR , THATWAS THE OT HER POINT I WANTED TO ADDRESS SO UGHT RELEVANCE OBJECTION, TWO POINT S I WANT TO MA KE. NUMBER ONE IS THAT , ALTH OUGH COUNSEL AT TRIAL DID NOT RAISE THE SPECI FIC OBJECTION TO THE K-9 EVIDENCE , HE DID RAISE AN OBJECTION TO THE PAROLE EVIDENCE, AND THE TWO WERE --

JUSTICE: WAS THERE IN THIS RECORD, A CHAIN OF CUSTODY OF THIS CAR FR OM THE TIME THAT THE ST OP WAS MADE, UNTIL THE TIME THAT THE DOG SNIFF WAS THERE?

WELL , THE CAR WAS FOUND , I BELIEVE IT WAS THE NE XT DAY. AS MATTER OF FACT IT WAS FOUND AT A COMPLEX WHERE IT WAS SHOW N THAT T HEDEFENDANTS, THE MOTHER OF TWO OF THE DEFENDANT'S CHILDREN LIVED , W HICH I S WHERE THE STATE WAS ARGUING THE DEFENDANT HAD FLED TO AND SPENT THE NI GHT , BEFORE GOING TO CALIFORNIA . AND FROM THERE IT WAS IMPOUNDED .

CHIEF JUSTICE: NO DRUGS WERE FOUND.

NO DRUGS WERE MOUND FOUND AND THAT IS THE POINT PRE -- NO DRUGS WERE FOUND, A NDTHAT IS THE POINT PRECIS ELY AS TO RELEVANCE , BECAUSE THE OTHER CASES DEAL WITH PROBABLE CAUSE GER MINATION , BECAUSE EVERYB ODY DISPUTED THAT HE WAS DETE CTING A LINGERING ODOR, THAT THE NARCOTIC S COU LD HAVE BEEN THERE TWO DAYS PRIOR.

CHIEF JUSTICE: COULD HAVE BEEN THERE A WEEK PRIO R?

COULD HAVE BEEN THERE A WEEK PRI OR, WHICH IS WHY THERE IS NO PREJUD ICE.

JUSTICE: OR THEY COULD HAVE BEEN THERE THE NEXT DAY.

I AM SO RRY ?

JUSTICE: THEY COULD HAVE BEEN THERE THE NEXT DAY AFTER THE SHOO TING , CORRECT?

I SU PPOSE IT IS POSSIBLE.

CHIEF JUSTICE: WHAT WE ARE SAYING IS WE ARE CONCERNED ABOUT ON DIRECT APPEAL.

I DON'T THINK THERE WAS ANY INDIC ATION THAT THE CAR HAD BEEN BROKEN INTO OR T HAT ANYBODY ELSE HAD CUSTOD Y OF THE CAR .

CHIEF JUSTICE: SIP S HAD ADMIT THE -- ADMITTED THE DOG ALERT AND IN THE COURSE OF THE TRIAL TESTIMONY , HE WAS GOING TO USE SIPS'S TESTIMONY TO SHOW THAT HE KNEW DRUG VIOLATION WAS PAROLE VIOLATION, AND WHILE IT WAS NOT ADMITTED IN T HEGUILT PHASE, IT BEC AME APPARENT IT WAS RELEVANT B Y HIS MOTIVE FOR MUR DERING THEPOLICE OFFI CER. BY THE ATTORNEY NOT CHALLENGING THE V ERY WELLRANS I OF THE DRUG EVIDENCE, HE -- RELEVANCE I OF THE DRUG EVIDENCE, HE ENDED UP -- RELEVANCY OF T HEDRUG EVIDENCE, HE ENDED U P HAVING BOTH THINGS COMING I N , WHICH IS THE PAROLE STATUS AS WELL AS THIS VERY SPECULATIVE DRUG ISSUE ABOUT MOTIVE.

I WANT TO MAKE TWO POINT. NUMBER ONE BEFOR E THE TRIAL EVEN BEFORE THE OPENINGSTATEMENTS, THERE WAS A MOTION IN LI MINE BY THE PEOPLE DURING WHICH THIS ISSUE WAS FLESHED OUT.

CHIEF JUSTICE: WHATISSUE?

THE ISSUE OF THE EVIDENCE THEY WANTED TO COME IN AS TO MOTIVE. ALTHOUGH THE STATE DID NOT ENTIRELY SAY WHAT T HEEVIDENCE WAS GOING TO SHOW , IT WAS CLEAR THAT THE STATE WAS GOING TO SHOW EVIDENCETHAT HE HAD BEEN I N POSSESSION OF DRUGS AND THAT THAT EVIDENCE WAS NOT GOING ON COME IN IN THE FORM OF ACTUALLY HAVING TO RECOVER NARKET ON THEICS , SO THE -- NARCOTICS, SO THE TRIAL JUDGE ACTUALLY MADE STATEMENTS TO THE RECORD THAT HE BELIEVED THIS WAS SUFFICIENT FOR THE ISSUE TO GO TO THE JURY.

JUSTICE: THE RECO RD WE HAVE BEFORE US OPPO SE THE CONVICTION, THERE IS NO EVIDENTIARY HEARING FROM COUNSEL AS TO WHY HE DID NOT BRING OUT OBJECTION , W ASTHERE?

NO AND I ALSO WANT ED T O POINT OUT ON DIRECT AP PEAL THAT THE COURT DID NOT DIRECT ON THE SPECIFIC ISSUE OF THE FIN DING OF DRUG EVIDENCE. IN PAROLE EVIDENCE , I CANNOT SAY THAT FRANKLY ESTABLISHING THAT SOME BODY SO PAROLE WOULD BE LESS PREJUDICIAL THAT THEY WERE ON NARCOTICS , AND IN FACT THIS COURT FOUND THAT HE HAD NOT BEEN PREJUD ICED BY THAT EVIDENCE COMING IN .

JUSTICE: BUT WASN'T THE DRUG EVIDENCE USED TO , THE DRUG EVIDENCE HERE WAS USED AS A MOTIVE FOR THE FACT THAT HE SHOT THE POLICE OFFIC ER.

TOGETHER WITH THE FACT THAT HE WAS ON PAROLE. THE ARGUMENT WAS THAT, BECAUSE HE WAS ON PAROLE HE KNEW HE WAS GOING BA CK TO JAIL.

JUSTICE: BECA USE HE HAD DRUGS.

CORREC T.

CHIEF JUSTICE: WHAT I READ TO YOU WAS THAT WE HELDON DIRECT APPEAL THAT THE PAROLE STATUS EVIDENCE W OULDNOT HAVE BEEN INDEPENDENTLY ADMISSIBLE , IF IT HADN'T BECOME RELEVANT BECAUSE OF THE DRUG USE.

WELL, THIS COURT DID NOT SPECIFICALLY ADDRESS THE DOG EVIDENCE BECAUS E IT WAS N OTOBJECTED TO.

CHIEF JUSTICE: EXACTLY , AND THAT IS WHY AGA IN, NOW WE ARE GOING TO GO AR OUND IN A CIRCLE. YOU SAID IT WASN'T OBJECTED TO. WASN'T PRESER VED. IT DIDN'T GIVE EITHER THE TRIAL COURT A CHANCE TO LOOKAT THE ISSUE NOR DID IT GIVE THIS COURT A C HANCE TO EVALUATE THE ISSUE .

BUT THE COURT DID EVALUATE THE ISSUE OF THE PAROLE EVIDENCE, WHICH I SUBMIT IS ENTIRELY LINKE D TO THE DRUG ISSUE.

JUSTICE: THAT IS THE POINT , THAT YOU HAVE TO HAVE THE PREDICATE OF THERE B EINGDRUGS, BEFORE THE PAROLE EVIDENCE OF HIM BEING ON PAROLE, IS EVEN RELEVANT .

RIGHT.

JUSTICE: IN T ERMS OF THERE BEIN G A POSSES SION OF DRUGS LE ADING TO THE REVOCATION OF PAROLE. WHOSE AUTOMOBILE WAS THIS?

THIS WAS HIS COUSIN'S AUTOMOBILE.

JUSTICE: HOW LONG HAD HE HAD IT BEFORE THE DEFENDANT WAS STOP PED FOR --

I BELIEVE HE HAD IT FOR THREE DAYS.

JUSTICE: HOW IN THE W ORLDCAN WE EXP LORE THIS WITHOUT THEIR BEING A EVIDENTIARYHEARING, AS TO WHAT THE LAWYER WAS ALL ABOUT, IN NOT , REALLY, YOU KNOW --

WELL, YOUR HONO R, AGAIN , I WANT TO STRESS THE POINT THAT AL THOUGH HE DIDN 'T SPECIFICALLY OBJECT TO THIS , IT WAS LITIGATED BEF ORE TRI AL. IT WAS LITIGATED A FTER --

JUSTICE: WHAT WE ARE DOING RIGHT NOW IS WE ARE HEADED TO DAY AS IF THERE WAS AN EVIDENTIARY HEARING AND WE ARE TR YING TO WEIGH WAS THE LA WYER ADEQUATE O R WAS HE NOT .

I AM OBJECTING BECAUSE ON THE RECORD WE CAN SEE THAT THERE WOULD HAVE BEEN N O PREJUDICE BECAUSE THE TRIAL COURT HAD MADE HIS FEELINGS VERY CLEAR THAT EVEN IF THE ISSUE WAS LITI GATED , NU MBER TWO IT WAS EFFECT IVELY CHALLENGED ON CROSS-EXAMINATION AND ON SUMMATION .

JUSTICE: THE TRIAL JUDGE HAD MADE HIS R ULING VERY CLEAR BUT THE ABILITY TO CHALLENGE THAT ON APPEAL O R IN OTHER PROCEE DINGS ST ILL REMAINS. THAT IS THE WHOLE IDEA ABOUT THE ROLE OF THE LAWYER IN THIS THING, WHEN WE A RETALKING ABOUT IT IS NOT EVEN HIS AUTOMOBILE.

RI GHT.

JUSTICE: W E ARE T ALKING ABOUT AN ABSO LUTE CONCESSION THAT THE VEHICLE WAS EXTENSIVELY TAKEN AP ART O R SEARCHED, AND THERE WERE NO DRUGS FOUND THEIR , AND SO WHAT WE HAVE , THEN , I S S OME KIND OF RE MAINING ODOR, ALL RIGHT , THAT WHO KNOWS WHETHER THAT WAS THE COUSIN'S DRUGS FROM 20 YEARS BEFORE OR AS JUSTICE WELLS SUGGESTS, THAT THE DRUGS COULD HAVE COME I NTO THE VEHICLE AND THEN BEEN TAKEN OUT AGAIN , ALL WE ARE DOINGIS THE SAME KIND OF SPECULATION THAT EVIDENTIARY HEARINGS ARE DESIGNED T O C URE , S O WE NOW KNOW EXACTLYWHAT WAS GOING ON WITH THE LAWYER ABOUT THIS VERY , VERY IMPORTANT ISSUE , BECAUSE NOW THIS GIVES THE STATE A CLEAR REASON FOR WHY THIS PE RSON WOULD NOT HAVE BEEN WANTING TO BE TAKEN INTO CUST ODY OR HAD THE VEH ICLE SEARC HE D OR SOMETHING LIKE THAT.

WE ARE TALKING ABOUT INEFFECTIVE ASSI STANCE OF COUNSEL AT THE GUILT PHASE , SO THEY HAVE TO E LECT SUFFICIENTLY THAT THERE IS A PREJUDICE, THAT THERE WOULD HAVE BEEN A REASONABLE LIKELIHOOD OF A DIFFERENT OUTCOME , AND WHAT OUR POSITION IS, THAT NUMBER ONE, IT WAS CHALLENGED EFFECTIVELY. THE JURY KNEW THAT THERE WAS THIS LINGERING OWED OTHER , AND IT -- ODOR , AND IT WAS BROUGHT OUT O N CROSS-EXAMINATION THAT IT COULD HAVE BEEN SOMETHINGOTHER THAN DRUGS.

JUSTICE: YOUR OPPO NENT ARGUES ONE OF THE RELEVANT EVIDENTIARY RU LES REQUIRES A TRIAL COURT TO CONSIDER WHETHER THE VALUE OF THIS EVIDENCE, OK AY , OUTWEIGHS ENORMOUS PREJUDICE IN THE , IN LIGHT OF THE FACT THAT NO DRUGS WERE THERE OR WHAT EVER , AND SO WE ARE LE FT, REALLY , WITH A VOID HERE. IT MAY VERY WELL TURN OUT WITH AN EVIDENTIARY HEA RINGTHAT, THAT WOULD BE THE OUTCOME , BUT HOW CAN WE DO THIS WITHOUT AN ENTRY?

I THINK BECAUSE THE RECORD IS CLEAR THAT THE EVIDENCE WAS CHALLENGED AND THAT THERE WAS NO PREJUDICE.

CHIEF JUSTICE: JUSTICE WELLS HAS A QUEST ION .

JUSTICE: MOVING TO THE QUESTION THAT , POSED TO YOUR OPPOSING COUNSEL ABOUT W HICHTHERE WAS AN EVIDENTIARY HEARING, AND THAT IS HOW THERE , CAN THERE IS, IF I N THE FAC E OF WI GGINS , BE A DETERMINATION HERE , THAT COUNSEL WAS AN YTHING BUT INEFFECTIVE , WHEN H E DIDN'T MEET WITH THE WITNE SSES UNTIL THE WITNESSES GOT TO THE COURTHOUSE AND DIDN'T HAVE AN INVESTIGATION, AND THIS WAS A THREE-HOUR PENALTY PHASE. I MEAN, IT SEEM S TO ME THAT IT IS PRE TT Y HEAVY BURDEN FOR THE STATE TO O VERCOME .

WELL , YOUR HONOR, AS YOU CORRECTLY POINT OUT, THERE WAS A FULL OPPORTUNITY T O DEVELOP THIS CLAIM AT THE EVIDENTIARY HEARING, AND WHAT I WOULD LIKE TO FIRST POINT OUT IS THAT , HA VING HAD THAT OPPORTUNITY THE STATE DID NOT SEIZE ON THAT OPPORTUNITY BY ASKING MR. CARTER A FEW POINTEDQUESTIONS , AL MOST CREATIONING HIM AS T O WHETHER HE HAD MET WITH THEM AT -- CROSS-EXAMINING HIM AS TO WHETHER HE HAD MET WITH HIM AT THIS PARTIC ULAR T IME OR AT THAT PARTICULAR TIME , ASKING THE OPEN EN DED QUESTION THAT THERE WAS NEVER ANYONE THERE TO MEET WITH HIM.

CHIEF JUSTICE: WAS THERE SOMEONE THERE TO MEET WITHHIM?

HE DID NOT HAVE A RECOLLECTION, AS ON MANY QUESTIONS, BUT I WOULD LIKE TO POINT OUT THAT MR . CA RTER WAS ONE OF TWO DEFENSE ATTORNEYS THAT REPRESENTED THE DEFEND ANT AND AL THOUGH CARTER WAS PRIMAR ILY RESPONSIBLE FOR THE PENALTYPHASE, THE ACTUAL CONDUCTING OF THE PROCEEDING , IT IS CLEAR THAT IT WAS MR. PITTS, AND IT IS POINT SOME WHAT OBCURED , BEC AUSE THE RECORD HAS MANY REF REN CES ON T HERECORD THAT SHOWED IT WAS MR . PITTS AND NOT MR . CARTER WHO HIRED THE INVESTIGATOR OR WOULD HAVE BEEN THE ONE IN POSITION OR WOULD HAVE ASKED , HAD SOMETHING NE EDED TO BE FOLLOWED UP ON .

JUSTICE: THERE IS NO OBLIGATION TO MAKE CO-COUNSEL IN THE PENALTY PHASE , NO INDEPENDENT OBLIGATION BEYOND WHAT CO-COUNSEL MAY HAVE DONE TO ACTUALLY PREPARE FOR THE PENALTY PHASE?

NO. I AM SUGGESTING THAT WE CANNOT DERMOTT BASIS OF THE REPORT, THAT SOMETHING WAS NOT DONE , B Y SI MPLY ASKING ONE OF TWO DEFENSE ATTORNEYS WHERE WHETHER HE DID IT OR NOT . BESIDES, MR. CART ER DID TALK ABOUT CONVERSATIONS, NUMEROUS CONVERSATIONS FOR THE DEFENDANT, WHO ALL THREE DID TESTIFY AT THE PENA LTY PHASE . THEY MET HIS MOTHER

CHIEF JUSTICE: HE MET TEM AT THE COURTHOU SE?

NO, YOUR HONOR.

CHIEF JUSTICE: HE HAD MET WITH THEM AND KNEW WHAT THEY WERE GOING TO SAY BEFORE THEY GOT TO THE COURTHOUSE?

I DON'T THINK HE MET THEM BUT DID AT LEAST HAVE THE SEVERAL CONVERSATION WITH THE SISTERS.

CHIEF JUSTICE: HE KNEW WHAT THEY WERE GOING TO SAY .

ESSENTIALLY.

CHIEF JUSTICE: HE KNEW WHAT THE WITNESS WAS GOING TO SAY WHEN ASKED ABOUT IF THE DEFENDANT EVER U SED DRUGS, HE KNEW THAT THE SISTER WAS GOING TO SAY O H, YES HE USED DRUGS?

NO. IT IS APPARENT -- CH IEF I T VIOLATES WHAT EVERY TRIAL LAWYER KNOWS - -

CHIEF JUSTICE: IT VIOLATES WHAT EVERY TRIAL LAWYER KNOWS, WHICH IS THAT YOU ARE NOT SUPPOSED TO ASK A QUESTION THAT YOU DON'T KNOW THE AN SWER TO .

TR UE BUT THAT DOES N OTAMOUNT TO DEFICIENT PERFORMANCE.

CHIEF JUSTICE: NOT THAT ALONE, SO TELL ME AGAIN WHAT DOES THE RECORD SHOW ABOUTWHAT INVESTIGATION WAS DONE IN PREPARATION FOR THE PENALTY PHASE IN THIS CASE?

WELL , YOUR HONOR , NUM BER ONE THE EXTENSIVE NESS OF WHAT THE DEFENDANTINTRODUCED AT THE EVIDENTIARY HEARING, AS FAR AS WHAT HE CONDUC TED INVESTIGATION.

CHIEF JUSTICE: THAT WAS INTRODUCED BY?

GEL LER.

CHIEF JUSTICE: WHAT DID MR. CARTER SAY AS FAR AS TAKING WHAT THE INVESTIGATOR HAD DONE AND WHAT DID HE D O WITH THE INVESTIGATOR? DID HE MEET W ITH THAT INVESTIGATO R?

I DON'T BELIEVE HE MET WITH THE INVESTIGATOR.

CHIEF JUSTICE: DID HE FOLLOW-UP WITH ANY O THERLEADS?

THE POINT IS THERE WERE NO OTHER LEADS. THAT IS PREVICELY THE P OINTTHAT, NOT ONLY WAS THERE -- THAT IS PRECISEL Y THE POINT , THAT NOT ONLY WAS THEIR INVESTIGATION CONDUCTED , BUT THERE IS NO PREJUDICE. THE DEFENDANT CANNOT POINT TO ONE SI NGLE THI NG THAT WAS NOT UNCOVERED, WHICH IS WHY THE INVESTIGATION WAS NOT INSUFFICIENT, BECAUSE THEY WENT THR OUGH --

CHIEF JUSTICE: WAS THEREA ME NTAL HEA LTH EXP ERT CONTACT HAD IN THIS CASE?

NO. ONE WAS NOT CONT ACTED .

CHIEF JUSTICE: WHAT WAS THE REASON FROM CARTER - -

MR. CARTER TESTIFIE D AT THE EVIDENTIARY HEARING THAT ESSENTIALLY THE STA TE'SPOSITION WAS THAT THERE WASN'T A SINGLE SHRED O F INDICATION THAT ONE WAS CALLED FOR.

CHIEF JUSTICE: WHAT DIDHE KNOW ABOUT THIS DEFENDANT'S BACKGROUND ?

HE KNEW THAT EIGHT SEPARATE WITNESSES CONSISTENTLY SAID THAT HE WAS A G O OD CHILD WHO WAS NEVER V IOLENT BEFORE, GOOD IN SC HOOL , NEVER EXPELLED , HAD BEEN A GOOD SON , A GOOD FATHER TO HIS CHILDR EN.

CHIEF JUSTICE: DID HE HAVE A PRIOR RECORD?

HE DID H AVE A PR IOR REC ORD.

CHIEF JUSTICE: BUT WE HAVE A CASE WHERE HE H ASADMITTED TO SHOOT AGO POLICE OFFICER, WHICH IS PROBAB LY OF ALL OF THE CRIMES AROUND , THE CRIME THAT IS GOING T O MOST OUTRAGE JURY , APPROPRIATELY SO, THAT SOMEBODY IS DOING THEIR JOB SAN SHO T. -- JOB AND IS SHOT. THINKING ABOUT THE JACKSON CASE UP IN JACKSONVILLE. YOU DON'T THINK THAT SOMEBODY WHO WAS ATTEMPTING TO SAVE SOME ONE'S LIFE MIGHT, AT THE VERY LEAST , EXP LOREWHETHER THERE IS SOME PSYCHOLOGICAL REASON F ORWHAT OCCURRED , GIVEN MR . SIMS'S TESTIMONY ABOUT HOW FEARFUL HE WAS AT THAT TIME ?

WELL, YOUR HONOR, T WOISSUES. ONE IS CLEARLY GOING T HAT ROUTE WOULD HAVE BEEN ENTIRELY INCONSISTENT WITH THE ROUTE THAT MR . CARTER CHOSE TO PAINT THE DEFENDANT AS AN OTHERWISE GOOD PERSON WHO HAD MADE AN ENOR MOUS MISTAKE . CLEARLY HAVING HAD THE TESTIMONY THAT WAS PRESENTEDAT THE EVIDENTIARY HEA RINGAT THAT TIME, WOULD HAVE BEEN ENTIRELY INCONSIS TENTWITH THAT, SO WE ARE FACED WITH WHICH OF THE TWO CHOICES WOULD HAVE BEEN BETTER, AND I THINK - -

CHIEF JUSTICE: DOESN'T WIG INTS AND THE CASES OUT OF THE - - WIG GINS AND THE CASES OUT OF THE U.S. SUPREME COURT SAY THAT YOU CAN ONLY MA KE AN IN FORMED STRATEGY CHOICE IF YOU LOOKED AT ALL OF THE DIFFERENT OP TIONS?

ABSOLUTELY , YOUR HONOR, BUT I THINK THAT OPTION REQUIRES AN INVESTIGATION, AND I THINK THE RECO RD IS CLEAR THAT THE INVESTIGATIONWAS DONE AND CONSISTENTLY WITNESS AFTER WITNESS STATED THINGS THAT WERE CONTRARY TOTHE FACT THAT THERE WAS A MENTAL HEALTH ISSUE .

JUSTICE: WHAT WAS THE EVIDENCE AT THE EVIDENTIARY HEARING PRES ENTED AS TO PREJUDICE? THAT WASN'T PRESENTED AT TRIAL AT THE PENA LTY PHASE.

AS FAR AS THE MEN TAL MITIGATION? THERE WERE THREE - -

JUSTICE: ANY O THEREVIDENCE THAT WAS PRESENTED THAT SHOULD HAVE BEEN PRESENTED AT TRIAL AND WASN'T.

WELL, THE , I WANT T O ADDRESS THE QUICK ONES FIRST.THERE WAS ONE OF HIS FORMER BOSSES WAS CALLED, WHO TESTIFIED ESSENT IALLY TO VERY SIMILAR TESTIMONY THAT WAS ELICITED AT THE PENALTY PHASE. HE WAS A GOOD PERSON . THAT IS WHAT IT BOILS DOW N TO, AND TWO ELEMENTARY SCHOOL TEAC HERS WERE A LSO CALLED AT THE EVIDENTIARYHEARING, ESSENT IALLY TO TESTIFY TO THE SAME , THAT HE HAD NEVER BEEN EXPELLED F ROM SCHOOL. HAD HE BEEN A GOOD CHI LD. AS FAR AS THE MENTAL HEALTH EVALUATION, ONE EXPERT WAS CALLED WHO DIAGNO SED T HEDEFENDANT WITH A PENALTY DISORDER NOT OTHERWISE SPECIFIED , AND HE TESTIFIED AMONGST OTHER THINGS, THAT THIS PERSONALITY DISORDER WAS CHARACTERIZED BY DIFFICULTIES INTERPRETING STIMULI FROM OTHER INDIVIDUALS AND CHANGES IN THEIR BE HAVIOR . WHICH FRAN KLY , IS VERY WEAK MITIGATION, IN COMPARISON TO , AS JUSTICE PAR IENTE POINTS OUT , THE INCREDIBLY EMOTIONALLY CHAR GED CRIMETHAT WAS COMMITTED, SO I SUGGEST THAT A JURY WOULD NOT HAVE BEEN M UCH M ORE RECEPTIVE TO THIS MI TIGATION , ESPECIALLY IN LIGHT OF THE FACT THAT IT WOULD HAVE OPENED UP FU RTHER EVIDENCE BEING INTRODUCED BY THE DEFENDANT'S PRIOR CRIM ES, ALTHOUGH THE STATE HAD INTRODUCED THE FACT THAT HE HAD BEEN CONV ICTED OF A PRIOR VIOLENT FELONY, ONLY THE CONVICTION WAS INTRODUCED, AND THE STATEDID NOT GO INTO THE FACT S OF THAT CONVIC TION. HOWEVER , DUR ING DR . GOLDEN'S TESTIMONY AT THE EVIDENTIARY HEARING, HE CLEARLY USES HIS , WHAT HE TE RMS AS AN ESCALATION IN THE CRIM INAL ACTIVITIES OF THE DEFENDANT, AS PART OF HIS DIAGNOSIS . SO HE WOULD HAVE BEEN GOING INTO DE TAIL , ACTUALLY TO THE FACT ON TWO PRIOR OCCA SIONS THIS DEFENDANT HAD A GUN AND ON ONE OCC ASION HAD ST OLEN A CAR WITH FORGET WITH A GU N, AND IT WOULD HAVE OP ENED UP ANOTHER INCIDENT WHERE HE HAD STOLEN THE GUN FROM THE CAR OF THE IMPOUND ER WHO WAS ATTEMPTING TO TAKE HIS CAR , SO IT WOULD HAVE DONE A LOT MORE HARM THAN GOO D. IF THERE ARE NO O THERQUESTIONS, I RELY ON M Y BRIEF AND RESPECTFULLY ASK THIS COURT THAT IT IT A F FIRM THE LOWER COURT'S D E NIAL OF POST-CONVICTION REL IEF . THANK YOU.

CHIEF JUSTICE: REBUTT AL?

THANK YOU. JUST A COUP LE OF POINTS.

JUSTICE: CAN I ASK YOU THE SAME QUESTION I JUST ASKED. ASSUMING THAT THERE WAS DEFICIENT PERFORMANCE IN THE PENALTY PHASE, YOU ST ILL HAVE TO DEMONSTRATE PREJUDICE.THERE WAS AN EVIDENCE YAEFER HEARING IN THIS CASE. -- EVIDENTIARY HEARING I N THIS CASE. WHAT EVIDENCE WAS PRESENTEDTHAT HE CLAIMS TRIAL COUNSEL SHOULD HAVE PRESENTED IN THIS CASE?

FIRST OF ALL THE TESTIMONY OF DR. GOL DEN, W HOFOUND A VERY SIGNIFICANT BEHAVIORAL DISORDER , AND TESTIFIED SPECIFICALLY , AS TO THE PRESENCE OF TWO STATUTORY MITIGATING FACTORS THAT WERE NOT EVEN ARG UED TO THE JURY IN THE PENALTY PHASE .

JUSTICE: NOW AS TO THAT ISSUE , WHAT EVIDE NCE IS THERE THAT THE TRIAL COUN SEL SHOULD HAVE OBSERVED IN THE DEFENDANT , SOME PERSONALITY DISORDER OR OTHER MENTAL HEALTH ISSUE THAT WOULD HAVE ALERTED HIM TO THE FACT THAT HE NEED ED TO GET A MENTAL HEALTH EXPERT?

THE INVESTIGATIVE RE PORT THAT WAS ASSEMBLED BY MR . GELLER WAS FILLED WITH CLUES IN THAT DI RECTION. THE TESTIMONY THAT THE EVIDENCE INDICATED THAT MR . SIMS HAD BEEN HIT BY A CAR AND S U FFERED A HEAD IN JURY AT AGE TWO .

JUSTICE: WEREN'T TH OSE EXPLORED THAT THERE REALLY WAS NO LOSS OF CONSCIOUSNESS. THE, THAT TH OSE WERE PRETTY WELL, WERE THEY NOT , MITIGATED AWA Y?

WELL , THE POINT I BE LI EVE , JUSTICE LEWIS, IS NOT THAT THOSE PARTIC ULAR INDICATORS IN THE INVESTIGATIVE MATERIALS LED DIRECTLY TO THE MITIGATION THAT ULTIMATELY DR . GOLDEN FOUND , BUT RATHER THAT THEY W ERE THERE, PRESENT IN F RONT OF MR. CARTER. HE SHOULD HAVE KNOWN THAT , WHEN YOU SEE THAT IN FACT HE HAD , MR . SIMS REPORTED T HAT HE HAD BEEN, HE HAD FA LLEN OFF A MOTORCYCLE TWICE , FALLEN OUT OF A TREE AND LOST CONSCIOUSNESS SE VERAL TIMES , SUFFERED FROM HEADACHES AS A CHILD , AND SO ALL OF THESE FACT ORS SHOULD HAVE AT LE AST CAUSED MR . CARTER TO CONS ULT A MENTAL HEALTH INVESTIGATOR .

JUSTICE: ASSUMING THAT HE HAD , WHAT I S THE PREJUDICEIN THIS CASE , ASSUMING THAT THE STATE 'S EVIDENCE O F ALL OF THE PRIOR HISTOR IES O F GUNS AND ALL THE DETA IL S WOULD HAVE GO TTEN IN, IF THEY WOULD HAVE COME IN.

I F ONLY THEY WOULD HAVE NOT COME IN , HE WOULD HAVE BEEN BETTER OFF , YOUR HONOR. THE PRIOR CRIMES THAT MR . GOLDEN TALKED ABOUT , WHICH WERE IN, AS A MATTER OF FACT , IN FACT INVOLVED NO ACTUAL VIOLENCE, THE CRI TICAL POINTTHAT MR. CARTER FAIL ED TO BRING OUT TO THIS JURY WAS THAT THE AR MED ROBBERY N O ONE GOT HURT . IT WAS, HE STOLE A CAR , HE AND A FRIEND STOLE A CAR F ROM ANOTHER FRIEND. A STUPID CRIME. BUT NOT ONE THAT WOULD LEAD YOU TO THINK THAT HE WAS A MURDERER. THE CONFRONTATION WITH T HETOW TR UCK DR IVER , HE GRABBED, HE DIDN'T HAVE A GUN OF H ISOWN.HE G RABBED THE GUN IN THE GLOVE COMPARTMENT OF THE TOW TRUCK DRIVER AND HURLED I T INTO THE WOODS. NEVER HURT ANYBOD Y. DR. GOLDE N'S TESTIMONY WAS THAT THIS BE HAVIORAL DISORDER WAS CHARACTERIZED BY A KIND OF PASSIVITY , AND INWARDNESS OR WITHDRAWNNESS , THAT UNDER STRE SS, COULD LEAD TO THESE V IOLENT RESPONSES. BUT THAT MR. SIM S'S IMPULSE WAS TO GET AWAY , TO WITHDRAW, AND IN FACT THE PRIOR CRIMES SUPPORTED THAT CHARACTERIZATION OF HIS PERSONALITY , SO IN NO WAY WOULD THE ADMI SSION OF THE FURTHER IN FORMATION ABOUT THESE PRIOR CRIMES HAVE PREJUDICED MR. SIMS. IN FACT , THEY WOULD HAVE BEEN ENTIRELY CONSIS TENT , AND I SHOULD SAY SAY THAT WOULD HAVE BEEN CON SISTENT WITH MR . CARTER'S STRATEGY , PURPORTED STRA TEGY OF CHARACTERIZING HIM AS G OOD KID FROM A GOOD FAMI LY, AND IN FACT THAT WAS WHAT THE ELEMENTARY TEACHERS HEL PED TO SHOW, THAT WE PUT ON AT THE 3.8 50 HEARING. THEY SHOWED THE CHARACTERISTICS TOTALLYCONSISTENT WITH DR . GOLDEN 'S PROFILE, THAT MADE THIS PERSON VERY