In re: Amendments to the Florida Small Claims Rules

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Merrit Alonzo Sims v. State of Florida

SC04-1879

>> PLEASE RISE.
HEAR YE, HEAR YE, HEAR YE.
THE SKORT OF FLORIDA IS NOW
IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION,
AND YOU SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THIS GREAT STATE OF FLORIDA,
AND THE HONORABLE COURT.
>> GOOD MORNING.
GOOD MORNING.
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS.
WELCOME TO THE FLORIDA
SUPREME COURT AND THE ORAL
ARGUMENT CALENDAR FOR
THURSDAY, MAY, MAY 10th.
BEFORE WE BEGIN, I WOULD
LIKE TO, TO TAKE THE
OPPORTUNITY, I HOPE THAT
THEY'RE HERE, BUT I
UNDERSTAND THAT THE
APPELLATE COURT TEAMS FROM
-- LAKE HOWL HIGH SCHOOL.
ARE YOU HERE?
WELCOME TO THE COURT.
WE'RE GLAD YOU'RE HERE AND
GOOD LUCK TO YOU IN THE
COMPETITION.
FROM NAPLES HIGH SCHOOL?
VERY WELL.
WELCOME TO THE COURT.
AND FROM PINELLAS PARK HIGH
SCHOOL.
WELCOME.
WELCOME.
ARE WE MISSING ANY OF OUR
HIGH SCHOOL TEAMS THAT ARE
IN TOWN FOR THE COMPETITION?
WELL, WE WISH YOU ALL THE
VERY BEST OF LUCK AND WE
LOOK FORWARD TO SEEING MAYBE
SOME OF YOU TOMORROW MORNING
HERE IN THIS COURT.
THE FIRST CASE ON OUR
CALENDAR THIS MORNING IS
SIMS v. STATE OF FLORIDA.
>> MAY IT PLEASE THE COURT.
MR. CHIEF JUSTICE, MEMBERS
OF THE COURT, GOOD MORNING.
MY NAME IS BENJAMIN DUKE OF
COVINGTON AND BURRLING AND
WE REPRESENT THE APPELLANT
SIMS ON APPELLATE FROM HIS
8.50 MOTION FROM THE CIRCUIT
COURT DATE.
WITH ME AT MY COUNSEL TABLE
IS KIMBERLY ZELNIC OF
COVINGTON.
WE ARE BEFORE THIS COURT
WITH A SECOND TIME ON THE
PRESENT APPEAL FOLLOWING
THIS COURT'S REMAND FOR AN
EVIDENTIARY HEARING SOLEY ON
THE QUESTION OF WHETHER THE
PERFORMANCE OF MR. SIMS'
TRIAL COUNSEL WAS SUFFICIENT
UNDER THE STRICKLANDLAND v.
WASHINGTON ON TWO POSSIBLE
GOUNDS.
FOR FIRST FAILING TO OBJECT
AT THE CANINE ALERT
TESTIMONY BY THE POLICE DOG
HANDLER WHOSE DOG SEARCHED
THE VEHICLE.
THAT MR. SIMS HAD BEEN
DRIVING AT THE TIME OF THE
HOMICIDE.
AND/OR, A SECOND FOR NOT
MOFBING TO STRIKE THAT
TESTIMONY ONCE IT BECAME
APPARENTLY THAT THE STATE
INTENDED TO USE IT AS THE
PREDICATE FOR INTRODUCING
ADDITIONAL, HIGHLY
PREJUDICEAL TESTIMONY BY
MR. SIMS PAROLE OFFICER
CONCERNING HIS PAROLE STATUS
AT THE TIME.
AFTER AN EVIDENTIARY HEARING
HELD OVER FOUR DAYS IN JULY
OF 2006 BY THE LOWER COURT,
THE COURT BELOW ISSUED AN
ORD WR LESS THAN A PAGE OF
ANALYSIS, REJECTING
MR. SIMS' POSITION.
>> I I JUST WANT TO MAKE
SURE SINCE WE HAVE HAD THIS
OVER TIME THAT IF THE CANINE
-- IF THE TESTIMONY
CONCERNING THE CANINE SEARCH
DID NOT COME IN, THEN WOULD
THERE HAVE BEEN ANY BASIS TO
ARGUE THAT A MOTIVE FOR THE
KILLING WAS POSSIBLE DRUG
POSSESSION, IN OTHER WORDS,
WAS THAT THE ONLY EVIDENCE
THE STATE COULD'VE PUT ON TO
SUGGEST THAT MR. SIMS
MIGHT'VE HAD DRUGS IN HIS
CAR?
>> ABSOLUTELY, YOUR HONOR.
>> ABSOLUTE LAY, THERE WAS
NOT ANYTHING SNELS.
>> THERE WAS ABSOLUTELY NO
OTHER EVIDENCE OF ANY KIND
CONNECTING MR. SIMS TO DRUGS,
MUCH LESS DRUGS IN THE CAR.
>> BUT TO PREVAIL ON THIS
ASPECT OF YOUR CLAIM, WOULD
YOU TO ESTABLISH THAT IF,
AND HAVE, AND, HAVE YOU
ESTABLISHED, FORGET ABOUT
THE DEFICIENT FORM.
IT'S JUST IN THE PREJUDICE
THAT THAT INFORMATION, THAT
THE, IT WOULD NOT HAVE COME
IN AT ALL?
OKAY, THAT THE JUDGE WOULD
NOT HAVE ALLOWED IN THAT
TESTIMONY IF IT'S BEEN
CHALLENGED?
>> WELL, THE QUESTION -- OUR
POSITION IS THAT THE
TESTIMONY COULD NOT HAVE
BEEN ALLOWED IN HAD IT BEEN
OBJECTED TO PROPERLY, THAT
THE EVIDENCE WAS OUTRIGHT
IRRELEVANT BECAUSE IT WAS
NOT PROBATIVE AND DID NOT
TEND TO PROVE --
>> SO ON THAT, NOTHING TO DO
WITH THE RELIABILITY OF THE
DOG OR THE THERE WAS SOME
TESTIMONY ABOUT WHETHER THAT
DOG WAS RILIABLE.
REGARDLESS OF THAT, WHAT
YOU'RE SAYING IS THAT IF IT
HAD BEEN OBJECTED TO
PROPERLY, THAT THAT
TESTIMONY COULDN'T HAVE COME
IN AT ALL?
>> YES, IF IT HAD BEEN
OBJECTED TO PROPERLY.
THAT WOULD'VE INCLUDED
OBJECTION OR, OR CITATION OF
THE GROUNDS FOR SOLUTION
WHICH WOULD'VE REQUIRED A
SLEBL EXPLANATION BY COUNSEL
WHO IN THIS CASE DID NOT
LIFT A FANG -- FENGER TO DO
ANYTHING TO -- TO INQUIRE
INTO THE RELIABILITY OF THIS
PARTICULAR DOG.
>> LET ME MAKE SURE THAT I
UNDERSTAND WHAT HAPPENED
HERE, AND THAT IS THAT THERE
WAS A, THE MATTER WAS
BROUGHT UP IN A MOTION IN
LIMINY, CORRECT?
AS TO WHETHER THERE WAS
GOING TO BE ALLOWED TO BE
PRESENTED BY THE STATE
EVIDENCE CONCERNING -- OR BY
-- OPENING ARGUMENT,OPENING
STATEMENT WOULD CONCERN
DRUGS.
>> THAT'S NOT EXACTLY
ACCURATE, YOUR HONOR.
>> OKAY.
>> THE MOTION IN LIMINY
FILED BY THE STATE ACTUALLY
WAS, WENT TO A DIFFERENT
MATTER.
IT WENT TO A ACHB AN
EVIDENCE THAT MR. SIMS
COUNSEL WANTED TO INTRODUCE
RELATING TO A PRIOR --
>> PRIOR ARREST.
>> PRIOR TRAFFIC STOP.
>> BUT AT THAT HEARING, THIS
MATVERING TO DO WITH THE
OPENING STATEMENT -- MATTER
HAVING TO DO WITH THE
OPENING STATEMENT WAS
DISCUSSED.
AND AT THAT POINT, JUDGE
CARNEY INDICATED THAT HE WAS
GOING TO ALLOW THERE TO BE
SOME EVIDENCE CONCERNING THE
TRANSPORTING OF DRUGS.
BUT THAT HE -- WELL, HE SAID
HE DID WANT WANT IT TO COME
IN UNLESS THEY COULD PROVE
IT, AND THEN THE STATE
ASSURED HIM THAT THEY COULD
PROVE IT.
IS THAT BASICALLY WHAT
OCCURRED?
>> WELL, THAT'S, THOSE,
THOSE COMMENTS WERE
DEFINITELY MADE.
THE JUDGE WARNED THE, THE
STATE THAT, AND I BELIEVE
I'M, I'M QUOTING OR
PARAPHRASING CLOSELY.
I DON'T WANT YOU ACCUSING
THIS DEFENDANT OF
TRANSPORTING DRUGS IF THERE
IS NO EVIDENCE THAT THERE
WERE DRUGS IN THE CAR.
AND MR. SIMS, WHO WAS
ARGUING OR REPRESENTING
MR. SIMS AT THAT POINT SAID
ON AT LEAST TWICE AT THAT
TIME THERE IS NO EVIDENCE.
SO MR. PITS BELIEVED THAT
THE EVIDENCE OF THE, AND
REFERRED TO THE DOG ALERT.
MR. PITTS HIMSELF BELIEVED
AT THAT TIME THAT THIS
EVIDENCE OF THE DOG ALERT
WAS NO EVIDENCE.
>> WELL, THEN WE'VE GOT DOWN
TO THE, WE'VE, WE'VE, THE
DRUG TESTIMONY -- THE DOG
TESTIMONY CAME IN, LYNN'S
TESTIMONY CAME IN.
WE GOT DOWN TO CLOSING
ARGUMENT.
AND THE STATE DID ARGUE HE
DOESN'T WANT YOU TO KNOW
THAT THE DOG SNIFFED OUT THE
CAR AND FINDS NARCOTICS.
HE DIDN'T WANT YOU TO KNOW
THE DEFENDANT IS ON PAROLE.
ON THE FORM IT TELLS HE
CAN'T POSSESS, TRANSPORT, OR
USE NARCOTICS.
NOT IMPORTANT.
I WANT TO ASK YOU TO TELL ME
WHAT FROM YOUR STANDPOINT,
IS THE STRONGEST EVIDENCE
THAT THE STATE HAD FOR THAT
TO BE ARGUED.
WHAT THERE EVIDENCE FOR THAT
TO BE ARGUED?
I MEAN, HERE WE ARE IN
CLOSING ARGUMENT.
WHAT DID THE STATE HAVE TO
MAKE THAT ARGUMENT?
THERE WAS NO EVIDENCE, YOUR
HONOR, OTHER THAN THE
TESTIMONY OF OFFICER SYLVIA
THAT A DOG HAD SNIFFED THE
CAR OVER TWO DAYS AFTER THE
INCIDENT HAD OCCURRED AFTER
THE CAR HAD BEEN
FINGERPRINTED AND SUBJECTED
TO CYANOACCOLADE FUMING.
THESE WERE, THOSE WERE FACTS
THAT SHOULD'VE BEEN
PRESENTED TO THE TRIAL COURT
BUT WEREN'T, AND, AND, AND
DIDN'T FIND ANYTHING AT ALL.
AND THERE WAS NO EVIDENCE OF
ANY KIND TO DIRECTLY CONNECT
MR. SIMS TO ACTUAL DRUGS.
THERE WERE NO DRUGS.
THERE WAS NOTHING BUT A DOG
SNIFF.
WHICH WAS -- AND THAT WAS
THE SOLE SUBSTANTIVE PROOF
OF MOTIVE THAT THEY, THAT
THE STATE OFFERED, OTHER
THAN TESTIMONY THAT NOBODY
IN GENERAL DENIALS BY OTHER
WITNESSES THAT THEY HADN'T
USED DRUGS IN THAT CAR.
BUT THAT WOULD'VE -- THAT
EVIDENCE WOULD'VE BEEN
COMPLETELY --
>> LET ME GO BACK TO WHAT I
ASKED.
SOTHEANSWER AGAIN CONTINUES
TO BE IT'S THIS DOG SNIFF
EVIDENCE THAT THAT IS THE
ONLY THING TYING THE
DEFENDANT POTENTIALLY TO
DRUGS.
NOW, YOU SAY, WELL, WHAT
SHOULD HAVE HAPPENED IS A
PROPER OBJECTION MADE TO
THAT TESTIMONY BASED ON
RELEVANCY, BEBUT I ALSO
HEARD YOU THEN IN ANSWER TO
JUSTICE WELLS' QUESTION, BUT
THEN HE DIDN'T EVEN
ASCERTAIN THE RELIABILITY OF
THE DOG.
WELL, THAT GOES TO WHETHER
-- THAT DOESN'T GO TO
RELEVANCY.
THAT GOES TO WHETHER THERE
IS COMPETENT EVIDENCE TO
ALLOW THE, THEPERSON TO
TESTIFY AS TO THE DOG SNF.
SO -- SNIFF.
ARE YOU SAYING BOTH THOSE
THINGS?
THAT IT SHOULD'VE BEEN --
BECAUSE I REALLY DIDN'T SEE
IN THIS EVIDENTIARY HEARING
THAT THE RELIABILITY OF THE
DOG WHO SNIFFED REALLY WAS
PUT INTO QUESTION.
AND I AM TRYING GHEN TO
THINK THAT ASSUME AGNEW
TRIAL WAS GRANTED, YOU ARE
SAYING THAT WE -- OR ARE YOU
SAYING AS A MAT ORF LAW WE
WOULD BE MAKE AGDECISION NOW
THAT THAT EVIDENCE IS
COMPLETELY IRRELEVANT?
OR, DOES THE STATE HAVE
ANOTHER CHANCE TO TRY TO GET
THE DOG SNIFF EVIDENCE BY
SAY -- SHOWING RELIABILITY?
>> WELL, THERE, THERE ARE
SEVERAL PARTS TO YOUR, YOUR
QUESTION.
THE FIRST -- OUR ARGUMENT ON
THE DOG ALERT EVIDENCE IS
BOTH THAT IT WAS -- NOT ONLY
THAT IT WAS IRRELEVANT, BUT
ALSO THAT IT WAS HIGHLY
CLEARLY PREJUDICEAL AS THIS
COURT HAS HELD, AND
THEREFORE IT COULD NOT
POSSIBLY HAVE PASS ADRULE
403 BALANCING TEST.
WE SEE THE RELIABILITY ISSUE
AS, AS INTERRELATED TO, WITH
THE RELEVANCE ISSUE.
IF RELEVANCE IS, IF THE
REQUIREMENT FOR RELEVANCE IS
THAT THE EVIDENCE TENDS TO
PROVE THE FACT FOR WHICH
IT'S OFFERED, THE
RELIABILITY OF THE DOG THAT
SNIFFED GOES TO THE QUESTION
OF WHETHER, WHETHER THE
DOG'S ALERT ACTUALLY DOES
TEND TO PROVE THE FACT FOR
WHICH IT'S BEING OFFERED.
SO WE THINK THAT THE
RELIABILITY ISSUE WOULD HAVE
FURTHER CONFIRMED THE
IRRELEVANCE BECAUSE HAD
MR. PITTS AND MR. CARTER
DONE THE INVESTIGATION,
ESTABLISHED -- INQUIRE UNDER
TO THE RELIABILITY OF THIS
DOG, THEY WOULD HAVE
DISCOVERED EVIDENCE WHICH IS
IN THE SUPPLEMENTAL RECORD
NOW --
>> WASN'T IT THERE, THEIR
APPROACH HERE WAS -- I MEAN
THEY ARGUED IN CLOSING
ARGUMENT.
THE DOG SNIFFED ALL AROUND
IN THE TRUNK OF THE VEHICLE.
HE WEPT IN THE PASSENGER'S
SEAT.
HE JUMPED OVER THE BACK
SEAT.
HE ALERTED TO A SCENT, ANEDER
IN THE FRONT SEAT STUCK DOWN
BETWEEN THE SEAT.
AND YOU KNOW THE OFFICER
TOLD US THAT HIS DOG ALERTS
COCAINE, HASHISH, MARIJUANA,
AND SOME OTHER DRUG, BUT HE
COULDN'T TELL US WHICH ONE.
FIRST OF ALL, HE COULDN'T
EVEN TELL US WHETHER THERE
WAS ANY DRUGS IN THE CAR.
I MEAN, THAT WAS WHAT, WAS
ARGUED BY THE DEFENSE
COUNCIL.
SO HE SEEMED TO ACCEPT THE
FACT THAT THE DOG ALERT
ALERTED THROUGH SOME KIND OF
DRUG.
THE DEFENSE LAWYER DID AND I
THINK THAT THAT ASSUMPTION
AND THE FAILURE TO PROBE IT
IN FACT HIGHLIGHTS THE
INEFFECTIVENESS OF HIS
ASSIST SNONS WELL, OR IS
THAT SORT OF THE STRATEGIC
APPROACH HE WAS TAKING?
>> NO, YOUR HONOR.
THERE IS NO EVIDENCE IN THIS
RECORD TO SUPPORT THE IDEA
THAT -- OR THE PROPOSITION
THAT MR. PITTS OR MR. CARTER
ACTUALLY MADE A STRATEGIC
CHOICE, A DELIBERATE
DECISION OF ANY STRATEGIC
NATURE TO FOREGO OBJECTION
TO THIS EVIDENCE.
QUITE THE CONTRARY.
WHEN MR. PITTS WEPT BACK AND
LOOKED BACK AT THE RECORD,
AT THE TRANSCRIPT AND
TESTIFY IN JULY 2006, QUOTE,
I COULDN'T BELIEVE IT
BECAUSE THERE WAS NO OJDS
THERE.
HE TESTIFIED THAT --
OBJECTION THERE.
HE TESTIFIED THAT AT POINTBLANK,
BOTH OF THEM TESTIFIED THAT
THEY HAD NO STRATEGIC BASIS
FOR NOT MOVING TO PRECLUDE
THIS TESTIMONY.
THEY HAD NO STRATEGIC BASIS
FOR NOT OBJECTING TO IT WHEN
IT WAS OFFERED.
AND THEY HAD NO STRATEGIC
BASIS, NONE, FOR NOT MOVING
TO STRIKE THE TESTIMONY
AFTER IT BECAME CLEAR THE
DISASTROUS CONSEQUENCES IT
WAS GOING TO HAVE FOR
PROVIDING THE PREDICATION OR
PREDICATE FOR THE PAROLE
OFFICER.
>> BUT ON THE PREJUDICE
PRONG, ASSUMING WE DECIDE
THAT IT WAS DEFICIENT
PERFORMANCE NOT TO CHALLENGE
THE SOLE EVIDENCE THAT MIGHT
LINK THE DEFENDANT TO DRUGS
AND THEN ALLOW THE STATE TO
ARGUE THE THAT THE MOTIVE
FOR THE KILLING WAS
DRUG-RELATED OR THAT HIS
PAROLE WOULD BE REVOKED, DO
WE FOR THIS CASE HAVE TO
ESTABLISH ON THE PREJUDICE
PRONG, OR DO YOU HAVE TO
ESTABLISH THAT THIS EVIDENCE
PROPERLY CHALLENGED WOULD
NOT HAVE COME IN.
YOU THINK THAT DECISION,
THAT ISSUE HAS TO BE REACHED
BY THIS COURT IN ORDER TO
PREJUDICE?
BECAUSE OTHERWISE, AGAIN,
THE REASON I SAY IT BECAUSE
IF THERE IS A RETRIAL ON
GUILT AND THEY REESTABLISH
AND PUT THE EVIDENCE IN,
THEN IT'S CERTAINLY DOESN'T
MAKE ANY SENSE TO EVIVE N
CONSIDER A NEW GELT -- EVEN
CONSIDER A NEW GUILT PHASE.
>> CERTAINLY WE THINK THAT
THE THE COURT COULD REACH
THAT ISSUE.
I DON'T BELIEVE, YOUR HONOR,
THAT THE COURT NECESSARILY
MUST RULE AS A MATTER OF LAW
ON THAT ISSUE IN ORDER TO IN
MR. SIMSFAVOR?
>> HOW DOES THAT COME
COMPROMISES IF WE THINK
MAYBE IT COULD COME IN
ANYWAY?
THAT DOESN'T REALLY HAVE TO
DO WITH, YES, THERE'S DEFISH
WANT PERFORMANCE, YES APIECE
OF EVIDENCE CAME IN, BUT IF
IN FACT THE EVIDENCE CAN
COME IN ANOTHER WAY, THEN
THERE'S NO PREJUDICE AND SO
THAT'S WHY I'M SORT OF
FOCUSING ON WHETHER THIS IS
PROPERLY CHALLENGEDDED COULD
BE EXCLUDED AND WHETHER,
MAYBE YOU'RE RIGHT MAYBE WE
DON'T HAVE TO REACH THAT BUT
TO ME, HOW ELSE DO YOU
ESTABLISH PREJUDICE.
FIRST I THINK WE HAVE
ESTABLISHED PREJUDICES
BECAUSE WE HAVE ESTABLISHED
THE RECORD CERTAINLY DOES
SUPPORT THIS COURT'S RULING
IN MATTER OF LAW THAT IN
THIS CONTEXT, THIS MATTER
WAS IRRELEVANT.
IT SHOULD NOT HAVE COME IN,
AND WE WOULD SUBMIT THAT THE,
THAT THE COURT CERTAINLY CAN
ON THIS RECORD --
>> -- IF IT'S IRRELEVANT,
HOW DID THE AFFECT THE OUTCOME
OF EITHER THE GUILT OR
SENTENCING PHASE OF THE
PROCEEDING, IN OTHER WORDS,
WITHOUT THIS EVIDENCE,
WOULDN'T THE STATE STILL
HAVE OBTAIN ADGUILTY VERDICT?
WOULD IT NOT HAVE OBTAIN
ADSENTENCE OF DEATH EVEN
WITH THIS EVIDENCE?
>> NO, YOUR HONOR.
>> WHY WOULD NOT -- LET'S
SAY GO WITH A GUILTY VERDICT
FIRST.
WASN'T THERE A WHOLE BUNCH
OF OTHER EVIDENCE THAT THIS
WAS THE MAN WHO COMMITTED
THE MURDER?
>> WELL, THERE WAS EVIDENCE,
AND IT WAS UNDISPUTED THAT
MR. SIMS HAD KILLED OFFICER
STAFFORD, BUT THE ISSUE WAS,
WAS SELF-DEFENSE.
THIS WAS --
>> DIDN'T HIS GIRLFRIEND
TESTIFY AGAINST THAT?
DIDN'T HIS GIRLFRIEND
TESTIFY AGAINST THE SAYING
THE OFFICER WAS CORDIAL,
NEVER SAID A WORD?
>> I'M NOT SURE WHAT
TESTIMONY YOUR HONOR IS
REFERRING TO, BUT I DON'T
BELIEVE THAT THAT WAS IN ANY
WAY TESTIMONY THAT COULD'VE
BEEN, THAT COULD'VE BEEN
TAKEN AS OVERWHELMING
NEGATION OF WHAT MR. SIMS
TESTIFIED TO, WHICH WAS
SELF-DEFENSE.
BUT THIS WAS A, THIS WAS
CRITICAL, A CRITICAL
COMPONENT OF THE STATE'S
CASE.
THIS WAS THEIR MOTIVE
THEORY.
THEY'VE ADMITTED AND
SPECIFIED IN A, IN A FILING
WITH THE COURT, IN THEIR
BRIEF ON SE LYNN THAT IF
THEY DIDN'T HAVE THIS MOTIVE
THEORY, THE JURY COULD
CONCLUDE THAT MR. SIMS HAD
NO ROSEN -- REASON TO KILL
OFFICER STAFFARDSERED, AND
THEREFORE -- STAFFORD, AND
CRFR, COULD CONCLUDE HIS
SELF-DEFENSE CLAIM WAS
VALID.
AND THIS, AS THIS COURT HAS
UNANIMOUSLY HELD WAS CLEARLY
PREJUDICEAL.
IT WAS ESSENTIAL TO THE
STATE'S MOTIVE THEORY, AND
ITS ABSENCE FROM THE TRIAL
CERTAINLY CREATES A
REASONABLE PROBABILITY, OR A
REASONABLE POSSIBILITY THAT
THE OUTCOME OF THIS TRIAL
WOULD HAVE BIB DIFFERENT HAD
IT NOT BEEN THERE.
AND SO THE PREJUDICE
RESULTING FROM THE
INTRODUCTION OF THIS, AND
IT'S SHOWN BY THE, THE FACT
THAT THE STATE RETURNED TO
THIS THEME FIVE SEPARATE
TIMES DURING THE CLOSING
ARGUMENT.
THEY HAMMERED ON THIS NOTION
THAT MR. SIMS WAS, WAS, WAS,
WAS CARRYING NARCOTICS AT
THE TIME.
AND THEY KNEW THAT THERE WAS
NO RATIONAL EXPLANATION FOR
WHAT HE HAD DONE.
>> WELL --
>> OTHER THAN SELF-DEFENSE
IF THAT WASN'T THERE, AND
THAT'S WHY THEY SPENT SO
MUCH TIME ON IT.
>> IN THAT SENSE, DOESN'T
THE EVIDENCE THAT THERE WERE
NO DRUGS FOUND IN THE CAR
REBUT THE STATE'S ARGUMENT
AND FUNCTIONED A REASON NOT
TO OBJECT TO IT -- FURNISHES
A REASON NOT TO OBJECT TO IT
BECAUSE IT STATE WAS WRONG
WHEN IT SAYS THERE WERE
DRUGS FOUND IN THE CAR.
>> BUT THE LACK OF THE
PROBATIVE VALUE OF THE
EVIDENCE IN NO WAY
ELIMINATES THE PREJUDICEAL
IMPACT.
THAT'S RULE 403.
>> [INAUDIBLE]
>> PREJUDICEAL IMPACT.
THE LACK OF PROBATIVE VALUE
DOES NOT -- THE.
>> THE DEFENSE'S COUNSEL.
WASN'T HE ABLE TO SAY AT
CLOSING ARGUMENT.
THERE WERE NO DRUGS FOUND IN
THE CAR.
THE STATE'S AURALLING THERE
WERE ALL THESE DRUGS.
THERE WERE NO DRUGS FOUND.
YOU HEARD THE EVIDENCE.
>> HE WAS ABLE TO SAY THAT,
BUT HE ONLY HAD TO SAY THAT
BECAUSE HE HADN'T OBJECTED
AND HE HADN'T DONE ANYTHING
TO PREVENT THIS EVIDENCE
FROM COMING IN, AND HE
HIMSELF TESTIFIED.
HE, MR. PITTS ARTICULATED
THE PREVAILING PROFESSIONAL
NORM WHEN HE WAS ASKED ISN'T
-- WHICH IS BETTER?
TO, TO OBJECT TO EVIDENCE
AND TO TRY TO KEEP IT OUT OR
TO, TO, TO ALLOW THE STATE
TO PURSUE A MOTIVE THEORY
THAT YOU THINK IS WEAK?
HE SAID THE BASIC, AND I'M
QUOTING, THE BASIC PRACTICE,
THE FUNDAMENTAL PRACTICE,
THIS IS QUOTED IN OUR BRIEF,
THE FUNDAMENTAL PRACTICE IS
TO TRY TO GET IT STRICKEN
AND NOT TO ALLOW IT TO
HAPPEN.
THAT'S WHAT HE FAILED TO DO,
AND HE ARTICULATED THE
STANDARD.
THIS WAS THE MOST BASIC
STANDARD, WHICH
MR. PUTOLLSKY CONFIRMED.
THE MOST BASIC STANDARD TO
TRY TO KES IN THE -- KEEP
THIS PREJUDICIAL.
AND HE HAD NO STRATEGIC
BASIS FOR DOING THAT.
HE DIDN'T MAKE A STRATEGIC
CHOICE, AND EVEN IF HE HAD
MADE THAT CHOICE, IT WOULD
NOT HAVE BEEN AN INFORMED
CHOICE, AS WIGGENS REQUIRES.
SO FOR A MULTITUDE OF
REASONS, AND THEY HAD A
MULTITUDE OF OPPORTUNITIES,
DAYS, TO THINK ABOUT THIS.
AN ENTIRE WEEKEND BEFORE THE
SE LYNN ARGUMENT.
DAYS BEFORE THE TRIAL BEGAN.
WITH THE MOTION IN LIMINY
WHEN THE MOTION GOT NOTICED.
THEY HAD MANY DAYS TO THINK
ABOUT THIS, AND THEY DID
NOTHING.
>> WITH YOUR HELP, YOU'VE
EXHAUSTED ALL OF YOUR TIME.
>> THANK YOU.
>> THANK YOU VERY MUCH.
JAGGARD.
>> MAY IT PLEASE THE COURT.
SANDRA JUGGERED ON BEHALF OF
THE STATE.
THE DOG EVIDENCE WAS PART OF
A CHAIN OF CIRCUMSTANTIAL
EVIDENCE THERE WAS DRUGGEDS
IN THE CAR.
THE STATE PRESENTED EVIDENCE
FROM THE OTHER PEOPLE WHO
HAD ACCESS TO THE CAR.
SAM AND HIS SISTER CAROL
THAT THEY NEVER HAD THE
DRUGS IN THE CAR.
>> WAS THERE ANY EVIDENCE
THAT THERE WAS ANY DRUGS IN
THE CAR.
>> THERE WAS NO DIRECT
EVIDENCE THAT THERE WERE
DRUGS IN THE CAR.
>> WAS THERE ANY EVIDENCE OF
DRUGS IN THE CAR?
>> THERE'S EVIDENCE OF THE
DOG SNIFF THAT NONE OF THE
OTHER PEOPLE HAD ACCESS TO
THE CAR.
>> IS THERE ANY EVIDENCE
THAT THERE WERE DRUGS IN THE
CAR WHEN HE WAS STOPPED?
>> THERE IS NO DIRECT
EVIDENCE.
THERE IS CIRCUMSTANTIAL
EVIDENCE.
>> I WANT TO KNOW -- THAT
TLUR WERE DRUGS IN THE CAR
WHEN HE WAS STOP?
WHAT WAS THE CIRCUMSTANTIAL
EVIDENCE?
>> NO ONE WHO HAD ACCESS TO
THE CAR BEFORE THE CRIME HAD
EVER HAD DRUGGED IN THE CAR.
>> I'M TALKING ABOUT THE
DISCREET TIME WHEN HE WAS
STOPPED, WHAT EVIDENCE WAS
THERE AT THAT POINT IN TIME,
NOT TWO DAYS BEFORE, NOT TWO
DAYS LATER, BUT AT THAT TIME
AT THAT POINT IN TIME, --
>> THERE WAS THE DOG
SNIFFING, COMING UP WITH AN
ODOR OF NARCOTICS.
THE PEOPLE WHO HAD ACCESS TO
THE CAR DIDN'T HAVE DRUGS IN
THE CAR.
THE CARS WERE COVERED AND
IMPOUNDED THE NEXT MORNING
BETWEEN 7:00 AND 8:00 IN THE
MORNING.
THIS CRIMOCCURS AT 9:00 AT
NIGHT.
THE DEFENDANT RATHER THAN
HAVING THE OFFICER COME UP
TO HIM COMES RUNNING UP TO
THE OFFICER'S CAR WHEN THE
OFFICER STOPS HIM BEFORE HE
CAN EVEN -- BEFORE THE
OFFICER CAN EVEN OPEN HIS
DOOR GET HIS FLASHLIGHT, GET
HIS NIGHTSTICK SO THERE IS
AN INFERENCE THAT HE IS
TRYING TO KEEP THE OFFICER
AWAY FROM THE CAR.
THERE IS TESTIMONY THAT THE
DEFENDANT HAD TO SCROUNGE
FOR CHANGE TO PAY FOR SUBWAY
SANDWICHES BEFORE AND YET
THE NEXT MORNING HE HAS MORE
THAN $150 WITHOUT
EXPLANATION AS TO WHERE HE
GOT THE MONEY.
THE DEFENDANT, OH, MY FAMILY
GAVE ME MONEY BUT HIS
VERSION, HE DIDN'T HAVE
CONTACT WITH HIS FAMILY
BETWEEN THE TIME OF THE
MURDEN R AND THE TIME HE HAS
$1150.
>> BUT HOUSE HOW DOES THE
STATE, OTHER THAN THE DOG
ALERT EVIDENCE, BECAUSE
OTHERWISE IT WOULD BE HIGHLY
SPECULATIVE THAT THERE WOULD
BE DRUGS IN THE CAR.
>> BY ARGUING THAT CHAIN OF
CIRCUMSTANCES SHOW HE GOT
MONEY.
NOBODY ELSE HAD THE
OPPORTUNITY TO PUT DRUGS IN
THE CAR.
THE DOG SNIFFED DRUGS IN THE
CAR.
THAT WAS IN STATE'S
EVIDENCE.
>> BUT I ASKED, I THOUGHT I
SAID HOW WOULD THEY BE ABLE
TO ESTABLISH IT WITHOUT THE
DOG ALERT?
I MEAN, THAT'S THE ONE, YOU
HAVE TO HAVE THAT DOG ALERT.
YOU HAVE TO HAVE THE FACT
THAT THERE WAS AT LEAST
SNIFFING TWO DAYS LATER TO
GO BACK IN THE CHAIN.
IS THAT CORRECT?
>> YES.
>> ALL RIGHT.
WELL THEN, AND THAT'S WHAT
WE GO BACK TO IS WAS THAT
DOG ALERT EVIDENCE PROPERLY
CHALLENGED IN THE COURT?
>> WELL, --
>> -- AT THE ORIGINAL TRIAL.
>> WELL, THE DEFENSE HAS
LIMITED THEMSELVES WHILE
THEY TALK ABOUT THE DOG NOT
BEING RELIABLE, THEY
CONVINCED THE LOWER COURT
NOT TO ALLOW ANY EVIDENCE
BECAUSE THEY SAID YOU HAD
ALREADY FOUND PREJUDICE AND
THEREFORE THE COURT SHOULD
NOT ALLOW EVIDENCE ON
PREJUDICE.
>> DID WE FIND PREJUDICE?
>> I DO NOT READ THAT AS
YOUR ORDER.
I READ THAT AS SAYING THE
EVIDENCE IS PREJUDICEAL.
WHICH ANY EVIDENCE WORTH
PUTTING IN IS ALSO
PREJUDICIAL.
>> WELL, AS A MATTER OF FACT,
THIS CASE WAS TRIED A AS
DRUG CASE.
THE ARGUMENT BY THE STATE,
THE CLOSING ARGUMENT WAS
THAT THERE IS A DIFFERENT IF
-- IF YOU HAVE SOME DRUGS IN
THE CAR AND YOU'RE GOING TO
BE ARRESTED, BETWEEN THAT
AND BEING ON PAROLE FROM
STATE PRISON WHERE YOU HAD
BEEN RELEASED JUST FIVE
WEEKS EARLIER, THERE ARE TWO
DIFFERENT THINGS, AND THAT
HOW MUCH MONEY DID HE HAVE?
AND HE IS NOT TRANSPORT OR
AND SELLING DRUGS WHILE HE'S
ON PAROLE.
THAT WAS THE QUESTION.
THAT THE STATE ASKED THE
JURY, AND SO THIS -- AND SO
IF THIS TESTIMONY WAS, IF IT
WAS NOT PROPERLY AEROED, AS
A DRUG CASE, CERTAINLY --
ARGUED AS A DRUG CASE,
CERTAINLY IT WAS
PREJUDICIAL.
THAT WAS THE WHOLE MOTIVE.
>> WELL, MOTIVE, OF COURSE,
ISN'T AN ELEMENT OF
FIRST-DEGREE MURDER AND
COUNSEL KNEW THIS EVIDENCE
WAS COMING IN.
THERE WAS A DISCUSSION IN
MOTION IN LIMINY WHERE THE
COUNSEL SAYS IT'S A JURY
ISSUE.
WHEN THE STATE STARTS ITS
CHAIN OF CIRCUMSTANTIAL
EVIDENCE WITH SAM'S
TESTIMONY ABOUT THE DRUGS
BEING IN THE CAR, COUNSEL
OBJECTS, IT'S OVERALLED.
COUNSEL'S TESTIMONY AT THE
EVIDENTIARY HEARING WAS I
DON'T REMEMBER WHY I DIDN'T
DO THIS, AND IN HINDSIGHT,
THAT LOOKS LIKE A BAD IDEA.
STRATEGY IS PRESUMED UNDER
STRICKLAND.
IT'S UP TO THE DEFENSE TO
REBUT IT ON.
CROSS, MR. PITTS SAID,
SOMETIMES I LET THE STATE
BRING IN WEAK EVIDENCE
BECAUSE I DON'T WANT TO
HIGHLIGHT IT WITH AN
OBJECTION, WHICH
CONTEMPORANEOUS OBJECTION IS
NECESSARY TO PRESERVE
SOMETHING, AND I USE IT TO
HOIST THE STATE ON ITS OWN
PUTARD IN CLOSE!!ING.
>> WELL, THAT'S REALLY A
GENERAL KIND OF STATEMENT
FROM TRIAL COUNSEL ABOUT
THINGS HE MAY OR MAY NOT
HAVE DONE, BUT IN THIS
PARTICULAR SITUATION, HE, IT
SEEMS TO ME, HE SAYS CLEARLY,
THAT I DON'T KNOW WHY I, I,
I CAN'T THINK OF ANY
STRATEGY REASON WHY I WOULD
HAVE DONE THIS THIS CASE,
WHICH IS MORE SPECIFIC THAN
WHAT I MAY HAVE DONE --
>> I CAN'T --
>> -- IN SOME OTHER CASES.
>> BUT HINDSIGHT IS NOT
SUPPOSED TO BE USED.
THAT'S WHAT HE USED.
IN HINDSIGHT, IT WAS A BAYOD
EGS BAD IDEA.
I DON'T KNOW WHY I DID IT.
IT WAS COMING AND IN HE HAS
AN INCREDIBLY WEAK
SELF-DEFENSE CASE WHILE IT
WAS NOT REBTEDED BY ANY
GIRLFRIEND'S TESTIMONY, IT
WAS REBUTTED BY ANY EVIDENCE
IN THIS CASE.
>> ISN'T THIS A CASE OF
STATE PERMITTING INFERENCES
ON INFERENCES?
BECAUSE WE START WITH, IF WE
START WITH THE DOG SNIFF, WE,
YOU KNOW, THE DOG IS SAYING
THAT AT SOME POINT THERE
WERE DRUGS IN THIS CAR.
AND THEN WE HAVE TO PERMIT
AN INFRRNS THAT THOSE DRUGS
WERE IN THE CAR AT THE TIME
THIS DEFENDANT HAD THIS CAR
AS OPPOSED TO AT ANY OTHER
TIME.
>> WELL -- YOU HAVE
TESTIMONY THAT THERE'S NO
OTHER OPPORTUNITY FOR THE
DRUGS TO BE IN THE CAR.
NO ONE WHO HAD THE CAR
BEFORE THE DEFENDANT HAD THE
DRUGS IN THE CAR.
THE CAR IS IMPOUNDED THE
NEXT MORNING.
IT'S FOUND LOCKED.
IT'S TAKEN TO AN IMPOUND
GARAGE.
SO THERE'S NO -- AND
ACCORDING TO THE DEFENDANT,
HE SLEPT IN THE CAR UNTIL
RIGHT BEFORE IT WAS FOUND
AND IMPOUNDED, LOCKED.
SO YOU HAVE TESTIMONY, AND
IT'S A CIRCUMSTANTIAL CHAIN
OF EVIDENCE THAT THE DRUGS
WERE IN THE CAR, BUT IT IS A
CIRCUMSTANTIAL CHAIN OF
EVIDENCE.
>> WHO TESTIFIED THAT THERE
WAS NEVER ANY DRUGS IN THE
CAR?
>> THERE WERE THREE PEOPLE
WHO HAD ACCESS TO THE CAR,
SAM, HIS SISTER CAROL, AND
THEIR MOTHER.
SAM AND HIS SISTER CAROL
SAID WE NEVER HAD DRUGGED IN
THE CAR AND OUR MOTHER WOULD
NEVER HAVE DRUGGED IN THE
CAR.
>> ONE OF THE THREE PEOPLE
TIP TOIFD --
>> TWO TWO OF THE THREE
PEOPLE TESTIFIED, AND THE
OTHER ONE WAS THEIR MOTHER
AND I THINK IT'S REASONABLE
FOR THE JURY TO ASSUME THAT
AN OLDER WOMAN, THESE ARE
20-YEAR-OLD PEOPLE, IS NOT
RUNNING AROUND TRANSPORTING
DRUGS IN THEIR CAR.
>> WHAT DOES THE REFLECT AS
TO ANY ATTEMPT TO IMPEACH
THOSE TWO WITNESSES ON THAT
POINT.
>> UM, THEY ASKEDS WHETHER
THEY KNEW THE DEFENDANT TO
HAVE DRUGS OR USE DRUGS.
NO, WE DON'T KNOW HIM TO
HAVE THEM.
>> NO, THE BROTHER AND THE
SISTER.
WHAT EFFORT BY DEFENSE
COUNCIL TO RAISE DOUBT ABOUT
WHETHER OR NOT THESE TWO
EVER HAD ACCESS OR USED
DRUGS?
>> SIR, I DON'T RECALL
ANYTHING AND I DON'T KNOW
THAT THERE'S ANYTHING THAT
COULDPUSC DIN OTHER THAN TO
SAY --
>> WHO'S -- WHOSE CAR WAS
IT?
>> SAM'S?
>> HOW OLD WAS IT?
>> I BELIEVE IT WAS A 79.
>> AND WHAT YEAR DID THIS
OFFENSE HAPPEN?
>> 91.
>> SO THIS CAR HAD BEEN
AROUND FOR HOW MANY YEARS?
>> A NUMBER OF YEARS.
>> PARDEN?
>> A NUMBER OF YEARS.
A NUMBER OF YEARS.
>> HOW MANY YEARS.
I DON'T RECALL EXACTLY HOW
OLD IT IS.
>> OVER TEN YEARS, RIGHT?
>> YEAH.
>> OKAY.
WOULD IT BE SAFE TO ASSUME
PROBABLY HUNDREDS OF PEOPLE
HAD BEEN IN THAT CAR FOR
THAT PERIOD OF TIME?
>> WELL, WE DON'T KNOW --
>> THAT'S THE WHOLE POINT,
THAT WE ARE LEADING TO HERE
IS THAT WE HAVE THIS CAR
THAT IS SEARCHED AND IT'S
SEARCHED, FORENSIC SEARCHED,
IN OTHER WORDS AVERY
THOROUGH SEARCH WITH THE
DEATH OF A POLICE OFFICER,
WE KNOW THE THOROUGHNESS OF
THE SEARCH THAT OCCURRED
HERE.
ABSOLUTELY NOT A SCINTILLA
OF EVIDENCE, TANGIBLE
EVIDENCE OF ANY DRUGS, YOU
KNOW, BEING IN THAT CAR.
WE HAVE A CAR THAT IS OVER
10 YEARS OLD.
WHICH HUNDREDS OF PEOPLE
COULD HAVE BEEN IN THAT CAR.
WE KNOW THAT IF THE STATE
CHARGED THIS DEFENDANT WITH
POSSESSION OF DRUGS, THAT
THE TRIAL COURT WOULD'VE
LAUGHED IN THE FACE OF THE
STATE AS FAR AS BEING ABLE
TO PROVE THAT.
AND WE KNOW THAT THIS WAS
THE ESSENTIAL PART OF THE
STATE'S CASE AS STATED BY
THE PROSECUTOR OUT LOUD A
NUMBER OF TIMES THAT THIS IS
THE CRUX OF THE STATE'S
CASE.
ABOUT DRUGS BEING IN THERE
AND THIS DEFENDANT
SPECIFICALLY HAVING DRUGS IN
THERE.
HELP ME WITH WHY THIS IS
ABSOLUTELY NOTHING MORE THAN
THE THINNEST, THINNEST OF
SPECULATION THAT THIS
DEFENDANT HAD DRUGS IN THAT
CAR.
>> AGAIN, IT'S, IT'S --
>> ANYMORE THAN ONE OF THE
HUNDREDS OF PEOPLE THAT
MIGHT'VE BEEN IN THAT CAR AT
SOME TIME OVER THE 12 OR
13-YEAR LIFE OF THE CAR
BEFORE THE DEFENDANT HAD IT.
IN OTHER WORDS, IT'S JUST AS
LIKELY THAT SOME PERSON THAT
WAS IN THAT CAR FIVE YEARS
BEFORE, TEN YEARS BEFORE, A
YEAR BEFORE, OR WHATEVER MAY
HAVE HAD DRUGS AS IT IS THAT
THE DEFENDANT HAD DRUGS,
RIGHT?
>> I WOULD ASSUME AN ODOR
WOULD DISAPATE OVER TIMES.
I THINK FIVE OR TEN YEARS
LATER, WE PROBABLY WOULDN'T
FINE ANODER.
>> JUST GO AHEAD AND ANSWER.
HE'S LAID OUT A LOT OF
FACTS.
GO AHEAD.
GIVE YOU AN OPPORTUNITY TO
ANSWER.
>> I'M TRYING TO, YOUR
HONOR.
>> WELL, NO, NO NO, NEW YORK
CITY NO, THAT'S WHAT WE ARE
GOING TO DO.
WE ARE GOING TO GET AN
ANSWER.
>> WHY IS IT ANYMORE LIKELY
THAT THIS DEFENDANT HAD
DRUGS IN THAT CAR THAN IT IS
THAT SOME PERSON THAT WAS IN
THAT CAR SOME YEARS BEFOREP
--
>> WELL --
>> DOZENS OF UNKNOWN PERSONS
HAD IT?
>> WE DO KNOW THE MUSTER
FORDS HAD HAD IT FOR SOME
PERIOD OF TIME BECAUSE
MR. MUSTERFORD SAID HE WAS
ABOUT TO GRADUATE FROM
COLLEGE AND HE HAD IT FOR
SOME PERIOD OF TIME AND HE
AND EVERYONE WHO HAD ACCESS
TO IT NEVER HAD DRUGS IN IT.
>> SO HE HAD EVERYBODY --
YOU SAID HE WAS ABOUT TO
GRADUATE FROM COLLEGE.
I ASSUME IF HE WAS ABOUT TO
GRADUATE FROM COLLEGE THAT
HE HAD FRIENDS IN COLLEGE.
IN OTHER WORDS, THAT'S WHERE
I'M GOING TO THE POINT THAT
WITH THE AGE OF THE CAR THAT
WE CAN SAFELY SPECULATE THAT
AT LEAST DOZENS IF NOT
HUNDREDS OF PEOPLE WERE IN
THAT CAR AND, WHAT WE HAVE
REALLY HERE IS THAT
DEFENDANT, PROBABLY WAS IN
THAT CAR FOR A LESSER PERIOD
OF TIME THAN DOZENS OF OTHER
PEOPLE.
SO I'M HAVING DIFFICULTY
WITH THE SPECULATION OF THE
STATE THAT ZEROES IN ON THE
DEFENDANT HERE WITH
REFERENCE TO THIS DOG SNIFF
AND HOW THAT REALLY ENDS UP
BEING COMPETENT EVIDENCE OF
DRUGS BEING IN THAT CAR
WHILE THE DEFENDANT WAS IN
THE CAR.
>> OKAY, WE'LL GIVE YOU A
CHANCE TO ANSWER THAT
QUESTION.
GO AHEAD AND ANSWER IT.
>> THAT WAS THE STATE'S
CHAIN OF CIRCUMSTANTIAL
EVIDENCE.
THE OTHER PEOPLE WHO HAD
ACCESS TO THE CAR HAD NEVER
HAD IT THAT THEY HAD NEVER
ALLOWED ANYONE ELSE TO BRING
DRUGS IN THE CAR, AND THAT
THEN THERE'S THIS DOG SNIFF.
THEN THERE IS THIS DEFENDANT
RUNNING UP TO THE POLICE CAR,
AND THEN THERE'S THE
UNEXPLAINED PRESENCE OF HIM
HAVING MONEY AND THAT WAS
THE STATE'S CIRCUMSTANCES.
BUT EVEN IF YOU EXCLUDE THE
DOG SNIFF EVIDENCE, NUMBER 1,
COUNSEL IS STUCK IN A
POSITION WHERE HE KNOWATHIZE
TRIAL COURT IS GOING TO LET
THIS IN.
AND AND IN ANSWER TO JUSTICE
QUINCE'S QUESTION, IN
GENERAL, IF YOU READ THE
CLOSING ARGUMENT THAT'S WHAT
HE DOES WITH THIS EVIDENCE.
HE SPENDS HIS ENTIRE CLOSING
ARGUMENT ON HOW THE STATE IS
PUTTING UP SMOKE SCREEN.
THEY HAVE NO EVIDENCE.
>> AFTER HE HAS FAILED TO
ASK THE COURT TO EXCLUDE THE
EVIDENCE, AFTER THE EVIDENCE
COMESES IN, WHAT MORE CAN HE
DO WITH IT?
>> HE'S GOT TO TRY TO AT
LEAST ANY COMPETENT LAWYER
WOULD AT LEAST TRY TO NEGATE
THE IMPACT OF IT.
SO, HE HAS NO REAL CHOICE
ONCE THE EVIDENCE HAS COME
IN, DOES HE?
>> WELL, HE DID TRY AND KEEP
IT OUT.
HE DISCUSSES IT WITH THE
COURT IN THE MOTION IN
LIMMANY, & THE COURT SAYS
THAT'S A JURY ISSUE.
>> BUT DOES HE REALLY
DISCUSS SPECIFICALLY THIS
DRUG SNIFF EVIDENCE?
ARE THEY TALKING MORE
GENERALLY ABOUT WHETHER OR
NOT THE STATE CAN PROVE THAT
THIS DEFENDANT WAS IN
POSSESSION OF DRUGS AT THAT
TIME THAT HE WAS STOPPED?
>> THEY ARE TALKING ABOUT
THE STATE'S WHOLE CHAIN OF
EVIDENCE.
THERE'S NOT GOING TO BE ANY
EVIDENCE THAT THERE ARE
DRUGS IN THE CASE, JUST LIKE
WE ARE TALKING ABOUT HERE
TODAY.
AND THE STATE SAYS IT'S NOT
GOING TO BE DIRECT EVIDENCE,
IT'S GOING TO BE
CIRCUMSTANTIAL EVIDENCE AND
THE STATE COURT SAYS IT'S A
SELF-DEFENSE ISSUE.
>> WHERE DOES A JUDGE SAY
WHERE DOES THE ROLE OF
EVIDENCE SAY YOU HAVE TO
WEIGH THE PROBATIVE VALUE
VERSUS THE PREJUDICIAL
EFFECT AND THAT IF YOU DO
THAT, YOU KNOW, WHAT WE END
UP WITH IS THAT IT'S JUST A
LIKELY THAT ONE OF THE
HUNDREDS OR DOZENS OR PEOPLE
OR WHOEVER THAT COULD'VE
BEENEN THAT CAR BEFORE THIS
-- BEEN IN THAT CAR BEFORE
THIS, THAT THAT'S PURE
SPECULATION.
THAT'S THE PROBATIVE VALUE.
BUT JUDGE, LOOK AT THE
PREJUDICIAL IMPACT.
BUT AN ARGUMENT LIKE THAT
WAS NEVER MADE TO THE TRIAL
COURT, WAS IT?
>> NO, THERE WAS AN
OBJECTION WHEN THE STATE
STARTED ITS CHAIN OF
INFERENCE WITH SAM
MUSTERFORD.
AND THE JUDGE OVERRULES
THAT.
>> I BELIEVE IT'S RELEVANCE,
YOUR HONOR.
I DON'T RECALL THERE BEING
SPECIFIC GROUNDS BUT THERE
WAS AN OBJECTION --
>> I GUESS THAT'S -- I'M
GETTING CONFUSED BECAUSE I
THOUGHT THE WHOLE POINT OF
WHAT MR. DUKE'S BEEN ARGUING
THAT THERE NEVER WAS A
CHALLENGE TO THE RELEVANCY,
AND THE THIS THING THAT
FURTHER CONFUSES ME, IF YOU
COULD HELP ME, IS THAT IT
SEEMS LIKE THE, THAT THE
TRIAL COUNSEL WAS WORRIED
ABOUT BRICKING UP THIS --
BRINGING US UPTHIS ISSUE
AGAIN BECAUSE HE SAID
GENERALLY SPEAKING JUDGE
CARNEY SPEAKS STRONGLY
AGAINST ATTORNEYS WHO DO NOT
HEED HIS RULINGS.
SO NOW WE HAVE A SITUATION
WHERE AN ATTORNEY IS
ALTERNATIVELY SAYING I DON'T
KNOW WHY I DIDN'T CHALLENGE
THIS BUT NOW YOU ARE SAYING
IT WAS CHALLENGED AND HE
RULED SO COULD YOU JUST
SUCCINCTLY TOLD ME AND WE
CAN GO BACK IN THE RECORD
JUSTICE WELLS GAVE SOME
CITES WHERE OF WHAT JUDGE
CARNEY SAID.
WHAT IS THE FACT?
WAS THIS OBJECTED TO OR NOT?
>> DOES HE USE THE WORD
OBJECTION?
NO.
DOES HE ARGUE THAT THE STATE
IS GOING TO HAVE NO EVIDENCE
OF DRUGS?
DOES HE MENTION THE DOG?
DOES THE STATE SAY IT'S
GOING TO BE CIRCUMSTANTIAL
EVIDENCE?
DOES JUDGE CARNEY SAY WELL
THAT SOUNDS LIKE A JURY
ISSUE TO ME?
YEAH.
DOES HE OBJECT WHEN SAM
MASTERFORD TESTIFIES AND WE
BRING UP THE ISSUE OF DRUGS?
YES.
>> THE ONLY OBJECTION ON
GROUND OF RELEVANCE, NOT
THREE OR FOUR.
ONLY 402, NOT 403.
>> I THINK YOUR OPPOSITION
HERE IS MAKING A POINT,
WHICH DOES KIRN ME.
IS THAT -- CERB ME.
IS THAT EVEN AFTER -- YOUR
OPPOSITION IS MAKING A POINT
WHICH DOES CONCERN ME.
EVEN AFTER THE LIMINY AND
AFTER HERE COMES THE DOG
SNIFF.
WE HAVE THE QUESTION ABOUT
THE RICHARDSON VIOLATION ON
MS. LYNN.
AND THIS DOG SNIFF PERSON,
IF THEY HAD, IF THIS HAD
BEEN TAKEN UP OUTSIDE THE
PRESENCE OF THE JURY, SO
THAT THE JUDGE COULD'VE
KNOWN, SO THAT THERE
WOULD'VE BEEN AN OBJECTION
SO THAT THE JUDGE KNEW WHAT
THIS DOG SNIFF PERSON WAS
GOING TO SAY BECAUSE WHAT HE
SAYS WAS, QUESTION, SO HE
WAS RESPONDING TO THE ODOR
LEFT IN THAT AREA FROM THE
NARCOTICS?
ANSWER: YES, SIR.
NOW CAN YOU TAKE ME FROM
JAKE'S ALERT WHEN THAT
NARCOTIC WAS THERE?
ANSWER: NO SIR.
>> SO YOU CAN'T GIVE US A
TIME FRAME?
NO, SIR.
THERE'S NO WAY TO TELL T.
SEEMS TO ME THAT IF THE
JUDGE HAD KNOWN THAT THE DOG
SNIFF EXPERT WAS GOING TO
SAY THERE'S NO WAY TO TELL
WHEN ANY NARCOTICS ERR WERE
IN THAT CAR, -- NARCOTICS
WERE IN THAT CAR, THAT THERE
SHOULD ABOVE BEEN A MOTION
TO STRIKE.
WHY SHOULDN'T THERE HAVE
BEEN?
OR IT SHOULD'VE BEEN KEPT
FROM THE JURY ENTIRELY.
>> AGAIN, WHICH JUDGE CARNEY
ARGUES, JUDGE CARNEY SAID I
HEARD SUFFICIENT EVIDENCE
FOR IT TO GO TO THE JURY.
COUNCIL'S OTHER OPTION IN
THIS CASE.
HE'S COMPLAINING
SELF-DEFENSE IS TO SPEND HIS
INTIRE CLOSING ARGUMENT ON
THE SELF-DEFENSE THEORY.
>> BUT I DON'T KNOW THAT THE
QUESTION STILL GOES BACK TO
THAT BECAUSE JUDGE CARNEY
ASSUMED THERE WAS GOING TO
BE EVIDENCE TYING THIS
DEFENDANT TO DRUGS, BY THE
TIME THE CANINE EXPERT
TESTIFIES, AND THE JURY HAS
HEARD THAT, AT THAT POINT I
MIGHT AGREE, IT'S TOO LATE,
YOU KNOW, THE CAT'S OUT OF
THE BAG, SO TO SPEAK.
SO I THINK WE ARE REALLY
FOCUSINGING ON THE TIME
PERIOD AFTER THE MOEGDS IN
LIMINY BUT BEFORE THIS
EVIDENCE CAME IN.
DO YOU AGREE THAT THE
DEFENSE LAWYER HAS TESTIFIED
THAT HE HAD NO GOOD REASON
TO FAIL TO CHALLENGE THE DOG
SNIFF EXPERT.
>> I AGREE HE TESTIFIES HE
DIDN'T RECALL A NEW REASON.
HE PROFFERED REASONS.
THE RECORD SUPPORTS THOSE
REASONS.
HE HAS A SELF-DEFENSE
ARGUMENT WHERE THE DEFENDANT
HAS THE OFFICER CHOKING HIM.
AND BASHING HIM -- AND HE
BASHED THE OFFICER OVER THE
HEAD WITH THE RADIO.
THE OFFICER GETS CONTROL
AGAIN.
ACCORDING TO THE DEFENDANT,
THE OFFICER IS CALLING HIM
EVERY NAME IN THE BOOK AND
THREATENING TO KILL HIM.
A PASSERBY DRIVES BY AND HE
DOESN'T HEAR ANY OF THAT.
>> I GUESS NOW YOU WOULD SAY
--
>> I UNDERSTAND, AND I WOULD
AGREE THERE IS SUFFICIENT
EVIDENCE OF MURDER IN THIS
CASE.
THE QUESTION THAT WE GO BACK
TO, AND NOW I SEE WHERE
MR. DUKE WAS LOOKING AT OUR
ORDER.
I GUESS WE SAID IT'S CLEARLY
PREJUDICIAL.
WHETHER WE MEANT THAT AS A
SECOND PRONG OF STRICKLAND,
THAT'S SOMETHING WE'LL HAVE
TO DECIDE.
BUT CLEARLY, IT NOW PUTS A
-- SOMETHING BEFORE THE JURY
ABOUT A MOTIVE THAT COULDN'T
BE THERE, COULDN'T BE ARGUED,
BUT FOR THE DOG SNIFF
EVIDENCE.
AND I THINK THAT'S WHERE THE
CONCERN IS.
NOT THAT THERE'S NOT OTHER
EVIDENCE TO CONVICT HIM OF
MURDER, BUT WHETHER THIS
BECAME KIND OF THE THEME OF
THE STATE'S CASE AND AND
THAT UNDERMINED ANY
SELF-DEFENSE.
>> WELL, THE SELF-DEFENSE IS
ALREADY UNDERMINED.
ACCORDING TO THE DEFENDANT,
HE'S SHOOTING IN SUCH A
MANNER THAT THE BULLETS
SHOULD BE SUGGESTED TOWARDS
JUSTICECON TARA, FOUND OVER
BY JUSTICE BELL, 13 IFRPS
PART -PART.
ACCORDING TO THE DEFENDANT,
THE OFFICER LUNCHED AT HIM
STANDING UP.
THE ANGLE OF THE BULLET IS
THAT THE OFFICER HAD TO BE
ON HIS KNEES BECAUSE HIS
NECK HAD TO BE BELOW THE
OUTSTRETCHED HAND.
THE ONLY THING TO SUPPORT
THE SELF-DEFENSE IS THE
DEFENDANT'S SELF-SERVING
STATEMENT CONTRADICTED BY
EVERY OTHER PIECE OF
EVIDENCE.
AND HE'S EVEN CONTRADICTING
HIMSELF.
HE SAYS, YOU KNOW, I WAS
GOING TO TURN MYSELF IN.
>> SO YOU ADD TO THAT THAT
THE FACT THAT HE'S SELLING
DRUGS AND A ON PROBATION?
BOTH OF WHICH WOULD NOT HAVE
COME INP POTENTIALLY
OTHERWISE?
>> WELL, I DON'T KNOW THAT
THE PAROLE WOULDN'T HAVE
COME IN IF HE HAD SAID.
THE OFFICER IMMEDIATELY TOLD
HIM, ACCORDING TO THE
DEFENDANT HIMSELF, THAT THE
CAR WAS STOLEN.
IF THE DEFENDANT HAD SAID,
YOU KNOW, I HAD NO REASON TO
RESIST AES DURING HIS
TESTIMONY, I KNEW THE CAR
WASN'T STOLEN, I KNEW I'D BE
SENT HOME, THE STATE MAY AT
THAT POINT MAY HAVE BEEN
ABLE TO BRING UP, ISN'T IT
TRUE YOU WEREN'T ON PAROLE
SO YOU WOULD'VE HAD A
REASON.
>> YOU'VE UTILIZED ALL OF
YOUR TIME BUT BFR YOU SIT
DOWN I WANT TO MAKE SURE YOU
HAVE HAD THE OPPORTUNITY TO
ANSWER JUSTICE ANSTEAD AND
JUSTICE WELLS' QUESTION AND
THOSE WERE FOR YOU TO
IDENTIFY THIS MORNING WHEN
DURING THE PROCEEDINGS
OBJECTIONS WERE MADE AND
WHAT OBJECTIONS WERE MADE
AND DO THAT RIGHT NOW.
>> THE THERE WAS THE
OBJECTION IN THE PRETRIAL
MOTION HEARING IN LIMINY
ABOUT THERE BEING NO
EVIDENCE.
AT THAT POINT, MR. PITTS
SAYS THERE WIM BE NO
EVIDENCE FOUND OF DRUGS IN
THE CAR AND THE TRIAL COURT
SAYS WHEN IT'S
CIRCUMSTANTIAL SAYS IT'S
GOING TO COME IN.
AND AT THE -- DURING SAM
MUSTERFORD'S TESTIMONY WHEN
THE STATE GOES INTO THE
DRUGS, THERE'S AN OBJECTION.
AND THEN AFTER --
>> WHAT?
WHAT OBJECTION?
>> I BELIEVE IT'S RELEVANCY.
>> KEEP GOING.
>> AND AFTER WHEN THEY
SHOULD GO L.C. LYNN'S
TESTIMONY, THE DOG IS THE
LAST PIECE OF THE CHAIN.
EVERYTHING ELSE HAS
BASICALLY COME IN BEFORE
THAT.
THE DEFENSE COUNSEL AGAIN
ARGUES TO THE COURT, YOU
KNOW, THERE'S NO EVIDENCE OF
DRUGS.
THAT DOG EVIDENCE ISN'T
WORTH ANYTHING.
AND THE JUDGE SAYS I HEARD
ENOUGH EVIDENCE TO GO TO THE
JURY.
>> NOW, YOU'VE UTILIZED ALL
YOUR TIME, MR. DUKE, BUT I
AM GOING TO GIVE YOU A
COUPLE OF MINUTES WITH
INTENSE QUESTIONING, I WILL
BE SURE YOU HAVE THE
OPPORTUNITY LET ME ASK YOU
ON THIS SELF-DEFENSE THEORY,
I'M READING THIS COURT'S
OPINION ON DIRECT APPEAL ON
THE SELF-DEFENSE THEORY, AND
ONE OF SIMS' ISSUES WAS THAT
THE STATE FAILED TO PROVE
HIS ISSUE OF SELF-DEFENSE
AND THIS COURT WENT THROUGH
THE EVIDENCE OF BULLET
CASINGS AND THE POSITIONING
OF THE DEFENDANT AND THE
VICTIM AND THAT KIND OF
THING.
AND SAID THAT ALL OF THAT
REFUTED THE DEFENSE OF
SELF-DEFENSE.
THE COURT DID NOT POINT TO
ANY EVIDENCE OF DRUG
POSSESSION OR ANY MOTIVE
THAT HE HAD POSSESSED DRUGS
IN HIS CAR AS A REFUTATION
OF THE SELF-DEFENSE THEORY.
SO I, I RETURN A, THE
QUESTION I ASKED BEFORE IS
HOW DOES THIS UNDERMINE
CONFIDENCE IN THE OUTCOME?
HOW DOES IT RELATE TO THE
FACT THAT HE SHOT 14 TIMES
INTO THE VICTIM?
AND THAT IT DOESN'T REALLY
RELATE TO HIS THEORY OF SFL
DEFENSE.
-- SELF-DEFENSE.
>> JUSTICE CANTERO, I DON'T
BELIEVE THAT MR. SIMS SHOT
14 TIMES.
BUT THE -- THE ANSWER TO
THAT QUESTION IS THAT THE
STANDARD IS -- WE ARE NOT
ARGUING THAT THERE WOULD NOT
HAVE BEEN SUFFICIENT
EVIDENCE TO CONVICT MR. SIMS
HAD THIS DOG ALERT MOTIVE
THEORY NOT BEEN THERE.
WE DON'T HAVE TO ARGUE THAT
BECAUSE THE STANDARD IS, IS,
UNDER STRICKLAND IS FOR
PREJUDICE IS IS THERE A
REASONABLE PROBABILITY THAT
THE OUTCOME WOULD'VE BEEN
DIFFERENT HAD THE
INEFFECTIVE ASSISTANCE --
HAD EFFECTIVE ASSISTANCE OF
COUNSEL BEEN RENDERED.
AND THE FACT THAT THIS COURT
DIDN'T REQUIRE REFERENCE TO
THE DRUG EVIDENCE OR THE
DRUG THEORY IN ORDER TO SAY
THAT THE STATE HAD PUT ON A
CASE SUFFICIENT TONIGHT
SUPPORT A CONVICTION, WITH
RESPECT TO THE SELF-DEFENSE
EVIDENCE, OTHER
SELF-DEFENDANTS EVIDENCE,
DOES NOT ANSWER THE QUESTION
OF WHETHER THERE WOULD'VE
BEEN -- THERE'S A REASONABLE
PROBABILITY OF A DIFFERENT
OUTCOME IN THE EVENT THAT
THE DOG ALERT MOTIVE THEORY
HAD NOT BEEN THERE.
AND IN FACT -- IT -- AS I
BELIEVE JUSTICE WELLS WAS
POINTING OUT, THIS PART OF
THE STATE'S CASE WAS
CRITICAL.
THEY REPEATEDLY RETURNED TO
THIS, AND IN SUMMATION, THEY
SAID, THEY RELIED ON TO
PERSUADE THE JURY THAT IT'S
SURE IT'S ONE THING WHEN
YOU'RE NOT TRANSPORTING DRUGS,
BUT IT'S A COMPLETELY
DIFFERENT THING WHEN YOU
ARE.
AND THEY HAVELER -- AS I
SAID BEFORE, THEY HAMMERED
ON THIS THEORY.
SO TAKE THAT AWAY.
EXTRACT THAT FROM THIS CASE,
AND YES, THERE WOULD -- WE
DON'T SAY THERE WASN'T
SUFFICIENT EVIDENCE OR THE
STATE MIGHT NOT HAVE
DEFINITELY WOULD NOT HAVE
PREVAILED.
WE CAN'T SAY THAT -.
WHAT WE ARE SAYING IS THAT
THERE IS A REASONABLE
PROBABILITY OF A DIFFERENT
OUTCOME HAD THIS THEORY BEEN
KEPT OUT AND HAD IT BEEN,
HAD THE STATE BEEN DEPRIVED
OF WHAT WAS ESSENTIAL TO
THEIR CASE.
SHOWING THAT SOMEHOW THIS
WAS A BAD PERSON WHO
COULD'VE, WHO COULD'VE MURD
SNORD YOU'VE USED UP YOUR
ADDITIONAL TIME.
IF YOU NEED TO MAKE
CONCLUDING REMARKS, JUST DO
SO.
>> THANK YOU, YOUR HONOR.
I WOULD JUST LIKE TO POINT
OUT THAT WITH RESPECT TO THE
ISSUE OF OBJECTION, THAT WE
BELIEVE THAT THIS COURT'S,
THIS COURT'S ORDER, DECISION
ON DIRECT APPEAL MAKES IT
LAW OF THE CASE THAT, THAT
THERE WAS NO OBJECTION.
THAT THE COURT'S DECISION
STATED EXPLICITLY THAT, AND
I QUOTE, SIMS' ATTORNEY DID
NOT SEEK TO STRIKE THE
TESTIMONY WHEN IT BECAME
APPARENT THAT THE TRIAL
COURT WAS GOING TO PERMIT
THE STATE TO USE LINLYNN'S
TESTIMONY TO PROVE THAT SIMS
WAS ON PAROLE AND THAT HE
KNEW DRUG POSSESSION --
>> THANK YOU VERY MUCH.
>> THANK YOU.
>> YOU HAVE CONCLUDED ARE
YOU PROBONEOPEO THIS CASE,
SIR.
>> ON BEHALF OF THE COURT,
LET ME THANK YOU FOR
REPRESENTING ONE OF THE
INMATES.
ADVERSARIAL.
WE THANK YOU FOR YOUR TIME
TO SEEKING JUSTICE.
THANK YOU.
MS. JAGGARD, THANK YOU.