In re: Amendments to the Florida Small Claims Rules

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Marbel Mendoza v. State of Florida

SC04-1881 | SC05-2143

GOOD MORNING AGAIN.
GOOD MORNING.
>>> LADIES AND GENTLEMEN,
THE FLORIDA SUPREME COURT.
>>> THE FINAL CASE ON OUR
DOCKET THIS MORNING FOR
JANUARY 8th, IS MENDOZA
VERSUS STATE.
MISS DAY, READY TO PROCEED?
>> YES, THANK YOU, YOUR
HONOR.
MR. CHIEF JUSTICE, MEMBERS
OF THE COURT, MY NAME IS
RACHEL DAY.
I AM HERE ON BEHALF OF
MARBEL MENDOZA WHO APPEALS
DENIAL OF THE MOTION.
THIS IS A MOTION THAT CAME
UP FOR THE COURT IN THE PAST
THIS COURT REMANNEDED THE
CASE BACK TO THE LOWER COURT
FOR EVIDENTIARY HEARING.
>> IN RESPECT TO THE GUILT
PHASE, TELL ME WHAT YOU
BELIEVE TO BE THE STRONGEST
POSITION THAT MR. MENDOZA
HAS IN RESPECT TO THE GIMENT
PHASE?
>> THE GIMENT PHASE IN
EFFECT OF THE ASSISTANCE OF
COUNSEL CLAIM.
>> WHAT PORTION?
WHAT PART?
WHAT WAS THE INPECTIVE
ASSISTANCE THAT YOU ARE
CLAIMING IS YOUR STRONGEST
POSITION ON WHY THE COUNSEL
WAS INEFFECTIVE IN THE GUILT
PHASE?
>> I BELIEVE IN A NUTSHELL
JUSTICE WELLS, THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR
BOXING HIMSELF INTO A CORNER
IN HIS OPENING STATEMENTS TO
THE JURY.
AND BY VARIOUS REP HE SEN
TATIONS HE MADE TO THE JURY
-- REPRESENTATIONS HE NEED
THE JURY, HE ESSENTIALLY
PROMISED WHAT HE COULD NOT
DELIVER, HE MADE
REPRESENTATIONS HE COULD NOT
FOLLOW UP, HE FLIP-FLOPPED
THE SER THEORY OF THE CASE
THROUGH THE MIDDLE, SO THE
JURY LEFT ALL SENSE OF
CREDIBILITY IN ANY DEFENSE
THAT MR. MENDOZA MIGHT
PRESENT.
I SHOULD EXPOUND BY
EXPLAINING THIS CASE IS A
PURE FELONY MURDER CASE.
ALTHOUGH MR. MENDOZA WAS
INDICTED ON BOTH THE
PREMEDITATION AND THE FELONY
MURDER SERIES OF FIRST-DEGREE
MURDER.
>> NOW AT THE EVIDENTIARY
HEARING, LAZARO DID NOT OF,
CORRECT?
>> NO, DID HE NORTH, NO,
YOUR HONOR.
>> HE WAS NOT CALLED?
>> NO, HE WAS NOT.
>> AND THE, THE CENTRAL PART
AS I READ YOUR ARGUMENT IN
RESPECT TO THIS PROMISES
THAT WERE MADE TO THE JURY
REVOLVES AROUND LAZARO,
CORRECT?
>> THAT IS ONE PORTION OF
IT, YOUR HONOR, CERTAINLY,
THAT IS PORTION OF THE
BRIEF, BUT THE TRIAL COUNSEL
MAY MADE PROMISE TO THE JURY
THAT LAZARO WOULD TESTIFY.
HE REFERRED TO THE
DEPOSITION THAT HE HAD TAKEN
OF LAZARO.
>> HOW CAN WE MAKE A
DETERMINATION THAT THAT WAS
INEFFECTIVE IF HE WAS NOT
CALLED BY THE DEFENDANT HERE
AT THE EVIDENCEARY HEARING
TO CERTAINLY KNOW WHAT THE
TESTIMONY WOULD HAVE BEEN?
I WOULD REFER TO THE COURT
TO THE ARGUMENT MADE IN THE
BRIEFING ABOUT THE DEFENSE
IN WIGENS VERSUS SMITH AND
THE COMMENT IN THE MAJORITY
OPINION IN WIGENS VERSUS
SMITH THAT SAYS THAT THE
FUNCTION OF THE EVIDENTIARY
HEARING IS THE FUNCTION OF
POST CONVICTION PROCEEDINGS
IS NOT NECESSARILY TO
PRODUCE EVIDENCE THAT WOULD
BE IN OF ITSELFED A MISSABLE
AT TRIAL.
YOU HAVE TO LOOK AT THE
RECORD AS A WHOLE AND LAZ
ZAR RE'S DEPOSITION WAS
ENTERED INTO THE COURT FILE
SOMETIME ON THE ORRIN NAL
TRIAL PROCEEDINGS.
IT WAS DUTY OF MR. MEN DOZE
Z'S CONTENTION THAT IT IS
THE DUTY OF TRIAL COUNSEL TO
ENTER THIS TESTIMONY
INADMISSIBLE FORM WHICH
WOULD HAVE BEEN THE
TESTIMONY AT THE TIME OF
TRIAL AS HE HAD DONE
EFFECTIVE JB AND WOULD HAVE
BEEN DEN ON RETRIAL, WE'RE
NOT CONTENDING THE
DEPOSITION WOULD HAVE BEEN
ADMISSIBLE BECAUSE IT
WOULDN'T HAVE BEEN CLEARLY,
BUT FOR WHATEVER REASON HE
DID NOT TESTIFY.
>> HOW DO YOU WE EXPLAIN FOR
WHATEVER REASON.
THERE IS EVIDENCE THAT AT
THE TRIAL THERE WAS A
DISCUSSION WHERE COUNSEL
WENT ON INTO ANOTHER ROOM AN
THEY -- WASN'T IT THIS CASE,
WHERE THEY WERE DISCUSSION
WHETHER THEY WOULD CALL
LAZARO OR NOT, THEY CAME
BACK TO THE COURT AND THEY
SAID THAT WE TALKED ABOUT IT
AND WE HAVE DECIDED NOT TO
CALL IT?
>> THERE WAS EVIDENCE THAT
THIS WAS A DISCUSSION.
THERE IS NO EVIDENCE
ANYWHERE IN EITHER TRIAL
RECORD OR THE
POST-CONVICTION RECORD AS TO
WHAT THE RACIAL FOR THAT
DISCUSSION WAS.
>> THEY DIDN'T REMEMBER,
CORRECT?
>> THEY DIDN'T REMEMBER THE
REASON AT THE TIME.
THEN IN THE EVIDENTIARY
HEARING THEY SAID ABSOLUTELY
NO REASON THAT WE WOULD
WOULDN'T HAVE CALLED LAZARO.
>> DID MENDOZA TESTIFY AS TO
THIS DISCUSSION AT ALL?
>> NO, KNOW DID NOT.
>> ASSUMING THAT YOU ARE
CORRECT, HOW IS THE
STATEMENTS AT OPENING
STATEMENTS OUTSIDE SAYING MY
CLIENT DID IT AND WE ADMIT
THAT, EVEN THAT IS SUBJECT
TO NIXON, HOW IS THAT SO
OUTSIDE OF THE BROAD RANGE
OF REASONABLY COME TENT
ASSISTANCE THAT, THAT NOW
REGARDLESS OF WHAT ELSE THE
ATTORNEY DID IN
INVESTIGATING THE CRIME AND
REPRESENTING THE QLIRNTION
PRESENTING WITNESSES,
PUTTING THE STATE TO HIS
TEST REGARDLESS OF ANY OF
THAT SIMPLY BECAUSE HE MAKES
SOME STATEMENTS AT OPENING
ARGUMENTS THAT TURN OUT NOT
TO BE TRUE LATER ON, THAT
NOW THAT IS DEFICIENT
PERFORMANCE?
>> WELL, HIS, HIS RATIONALE,
I IF CAN I PUT IT IN
NUTSHELL.
>> HAVE YOU SAID THAT ANY
OTHER CASE, BASED PURELY ON
OPENING STATEMENT THAT
SOMEBODY INEEFFECTIVE OF
COUNSEL?
>> WELL, I THINK WE HAVE TO
LOOK AT THE OPENING
STATEMENT IN CONJUNCTION
WITH THE CONTENT OF THE
CLOSING ARGUMENT, YOUR
HONOR.
ON THE OPENING STATEMENTS,
TRIAL COUNSEL FAIRLY UNEQIV
KILLEN MAKING THE POINT THAT
MARBEL MEN DOZE SGLAS NOT
THE SHOOTER THAT HUMBERTO
CUELLAR US THE SHOOTER.
HE THEN CONTENDS THAT LAZARO
CUELLLAR IS THE SHOOTER.
WELL, NO I UNDERSTAND FOR
FELONY MURDER, IT DOESN'T
MATTER WHO THE SHOOTER IS,
BUT FROM THE POINT OF THE
VIEW OF THE JURY, YOU GOT
SOMEBODY.
MENDOZA IS DOWN THEDLY AT
THE CRIME SCENE.
WHAT HIS CONTENTION WAS,
THERE IS NO UNDERLYING
FELONY.
THEY WENT TO COLLECT A DEBT.
GIVEN THE JURY KNEW THAT
MR. MENDOZA WAS PRESENT AT
THE CRIME SCENE, IT IS VERY
CLEAR THAT HE MUST HAVE
KNOWN WHO THE SHOOTER WAS,
IF HE WASN'T THE SHOOTER,
THEN, HE HAD TO KNOW WHICH
OF THE TWO OTHER PARTICIPANTS
WAS THE SHOOTER.
TRIAL COUNSEL START OFF,
THEN FINISH OFF AND SAYING
IT IS LAZARO DESTROYS ANY
SLED OF CREDIBILITY THAT
MR. MENDOZA'S DEFENSE.
>> HAVE WE HELD THAT BEFORE
OUTSIDE OF A NIXON TYPE OF
CONTEXT TRULY BASED ON
STATEMENTS MADE IN OPENING
STATEMENT AND EVEN IN
CLOSING STATEMENT THAT
SOMEBODY CAN ININEFFECTIVE
OF COUNSEL.
I CAN'T PUT MY FINGERON ANY
CASE LAW.
>> WELL, ONE OF THE ISSUES
WHICH IS NOT THE OPENING-
CLOSING, WHAT JUSTICE WELLS
TOUCHED ON IS THE FAILURE TO
CALL LAZARO WHICH WOULD HAVE
AND YOU STARTED OUT SAYING
IT IS PURELY A FELONY MURDER
CASE, SO IF THE JURY ENDED
UP BELIEVING THEY WERE NOT
THERE FOR ROBBERY, BUT
SIMPLY FOR A DEBT
COLLECTION.
>> SURE.
>> THAT THEY, THEN THERE
WOULD NOT BE AN UNDERLYING
FELONY.
>> TRUE.
>> I AM INTERESTED BECAUSE
THE ONE THAT CONCERNS ME THE
MOST IS HOW THE EXPERT GOT
IT WRONG AND THEN WAS
TOTALLY DISCREDITED AND THEN
THE STATE TOOK ADVANTAGE AND
ACTUALLY SAID THAT THE
DEFENSE HAD, HAD HID IN THIS
INFORMATION ABOUT THE TIME
OF THE, THAT THE GUNSHOT
RESIDUE SAMPLINGS WERE
COLLECTED.
BUT I WANT TO EXPLAIN WHAT
THE TESTIMONY WAS AT TRIAL
AS TO HOW MUCH IT WAS EXPERT'S
FAULT VERSUS THE DEFENSE
LAWYER'S FAULT AN HOW THIS
THEN TRANSRATES INTO AN
INEEFFECTIVE ASSISTANCE OF
COUNSEL THAT IS DEFICIENT
PERFORMANCE IF YOU JUST
DON'T GET THE TIME RIGHT ON
A CRITICAL PIECE OF EVIDENCE
SO IF YOU COULD ADDRESS THAT
ONE, I AM MORE IMPRESSED
WITH THAT PROBLEM THAT SEEMS
TO HAVE REALLY UNDERCUT THE
ISSUE OF WHO THE SHOOTER
WAS.
>> RIGHT.
I AM GLAD YOU ASKED ME THAT
JUSTICE PARIENTE, I WAS
HOPING TO REACH THAT NEXT.
THE ONLY WITNESS AT ALL IN
FACT DEFENSE PUT ON AT TRIAL
WAS THE CRIMINALIST, THE
GUNSHOT RESIDUE EXPERT FROM
THE MIAMI-DADE POLICE
PEOPLE.
AND HE TESTIFIED THAT HE HAD
FOUND GUNSHOT RESIDUE ON THE
HANDS OF BOTH LAZARO AND
HUMBERTO CUELLAR, HE SAID
PARTICULARLY THE GUNSHOT
RESIDUE ON THE HANDS OF
LAZARO CUELLAR WERE
CONSISTENT OF HIM NOT ONLY
HAND LUNG THE GUN AFTER IT
HAD BEEN FIRED, BUT HE HAD
FIRED THE GUN.
NOW, HIS, UM, CONCLUSION WAS
BASED ON THE ASSUMPTION THAT
THE SWABS WERE TAKEN FROM
THE HANDS AROUND 9:00 A.M.
THAT MORNING OF THE CRIME.
THE CRIME ACTUALLY TOOK
PLACE I THINK AT 5:3 OR 5:40
IN THE MORNING, SO WE'RE
TALKING ABOUT JUST OVER
THREE HOURS AFTER THE CRIME.
NOW, TRIAL COUNSEL NEW --
KNEW OR SHOULD HAVE KNOWN
THAT THE SWABS WERE TAKEN AT
7:4 A LITTLE BIT EARLIER.
>> DID TRIAL COUNSEL TESTIFY
ABOUT THAT?
>>> YOU MEAN AT EVIDENTIARY
HEARING?
>> YEAH.
>> YEAH.
HE TESTIFIED AT THE TIME OF
THE CRIME, STILL EVEN NOW,
IF HE THOUGHT THE TIMING WAS
UNIMPORTANT.
THE PROBLEM WAS THAT BOTH OF
THE EXPERTS DID NOT BELIEVE
IT WAS UNIMPORTANT.
THE EXPERT WAS BLINDSIDED ON
CROSS-EXAMINATION BY THE
STATE MAKING A VERY, VERY
BIG DEAL ABOUT THE TIMING OF
THE SWABS BEING TAKEN.
AND SHE GOT ON
CROSS-EXAMINATION THE EXPERT
TO SAY, WELL THE TIMING MAY
HAVE MADE A DIFFERENCE TO
HIS OPINION.
THE STATE WAS ABLE TO HAVE A
FIELD DAY WITH THIS IN
CLOSING ARGUMENT NOT ONLY BY
SORT OF SAYING THE EXPERT'S
OPINION WAS INVALID, BUT
THEY ALSO TRIED TO TURN THIS
INTO A LARGER ACQUISITION ON
THE DEFENSE SAYING DEFENSE
GIVING EVIDENCE, THEY KNEW
THAT THE SWABS WERE TAKEN AT
7:4 A.M.
>> SO WHEN CONFRONTED WITH
THAT, THE EVIDENTIARY
HEARING, THE TRIAL COUNSEL
CONTINUED STATEMENT WAS THAT
THE REASON THAT HE, THAT HE
DIDN'T HAVE AN DISCUSSION
WITH THE EXPERT ABOUT IT OR
HOW DOES THIS FIT IN TO THE
INEFFECTS OF THE ASSISTANCE
OF COUNSEL AND WHAT WAS
COUNSEL'S EXPLAIN MATION.
>> AT THE TIME OF THE TRIAL,
BELIEVED THE TIMING WAS
UNIMPORTANT.
, YET YOU KNOW, HE DID NOT
CLEARLY LET HIS EXPERT KNOW
THE TRUE TIMES OF THE
SWABBING.
>> DID HE SAY THAT?
>> DID HE SAY THAT?
>> I DON'T THINK THE RECORD
REFLECTS THAT CLEARLY.
THE EXPERT WAS ALWAYS -- ETH
ARE THE EXPERT MISREAD OR IT
TRIAL COUNSEL DIDN'T INFORM
HIM.
ONE OF THE TWO HAPPENED.
>> WELL, THE EXPERT MISREAD
IT, HOW DOES THAT GET
CHARGED TO THE DEFENDANT AND
INEFFECTIVE ASSIST IN AN OF
COUNSEL CLAIM?
>> WELL, I THINK THAT TWO
ASPECTS, ONE IS A HOME
ASPECT WHICH WE ALLUDED TO
IN THE BREEFX BUT I THINK WE
GO BACK TO THE TRIAL AND ONE
OF THE THINGS YOU ARE
SUPPOSED TO DO IS PROPERLY
PREPARE YOUR EXPERT
WITNESSES FOR
CROSS-EXAMINATION.
YOU KNOW?
EVEN IF TRIAL COUNSEL
THOUGHT THAT THE TIMING OF
THE GUNSHOT SWABBING IS
UNIMPORTANT, IT IS CLEAR
THAT NEXT PERT THOUGHT IT
WAS ACTUALLY MORE IMPORTANT.
>> THE STATE -- WAS THERE
EVER A QUESTION THAT THE
STATE WAS ARGUING THAT YOUR
CLIENT WAS THE SHOOTER?
>> WELL, IT IN SDIMENTED
MR. MENDOZA.
>> AS FAR AS THE WHOLE, HOW
THEY TRIED THE CASE?
WE HAVE SEVERAL CASES
INCLUDING MOST RECENTLY DIAZ
WHO WAS JUST EXECUTED WHERE
IT DOESN'T MATTER WHO THE
SHOOTER IS, WE, FELONY
MURDER OR WHATEVER.
WAS THE THEORY, THIS BECOMES
IMPORTANT, DOES IT MATTER TO
THE SHOOTER IS?
WAS THE THEORY THAT MENDOZA
WAS THE SHOOTER, MO
QUESTION.
>> HUMBERTO SAID SO.
WITH THE GUNSHOT RESIDUE, IT
IS CLEAR THAT MAY NOT BE THE
CASE.
>> I MEAN, I AM ASKING ON
THE PREJUDICE PRONG.
>> PREJUDICE PRONG.
>> WAS THE STATE'S SOLE
THEORY THIS MAN SHOULD BE
CONVICTED AND GET THE
PENALTY BECAUSE HE WAS THE
SHOOTER?
>> NO.
THE STATE IN ITS CLOSING
ARGUMENT IS CLEAR IT REALLY
DOESN'T MATTER WHO THE
SHOOTER IS.
THIS IS PURE FELONY MURDER.
BECAUSE OF THAT, MR. MENDOZA
SHOULD BE CONVICTED OF FIRST
DEGREE MURDER.
IN FACT, QUITE A LONG PART
OF THAT CLOSING ARGUMENT
THAT THE STATE MADE WHICH I
THINK HAS CITED IN MY BRIEF
WHERE THE STATE SAYS, YOU
DON'T HAVE TO THINK IT IS
FAIR, YOU KNOW, EVEN IF
MR. MEN DOZE SGLAS NOT THE
SHOOTER, HE IS GUILTY OF
FELONY MURDER, IF YOU THINK
LAZARO IS THE SHOOT HER, IS
STILL GUILTY.
>> WHAT DO YOU BELIEVE IS
THE STRONGEST ARGUMENT IS ON
THE OPINION TY PHASE?
>> AGAIN, I HAVE A NUMBER.
I SAY THE STRONGEST DOCUMENT
IS CUMULATIVE ARGUMENT, YOUR
HONOR, BUY WOULD POINT TO
THE FACT THAT THE JURY
RECOMMENDATION IS 7-5.
THERE ARE ONLY 2 RELATIVELY
WEAK AGGRAVATEING
CIRCUMSTANCE, THE TRIAL
COURT FOUND NO.
>> IS YOUR CLAIM BUILT UPON
INEFFECTIVE ASSISTANCE?
>> SURE.
>> RIGHT?
>> YES.
>> HOW WAS COUNSEL INEFFECT
SNIFF
>> THE TRIAL COUNSEL PUT ON
THE TESTIMONY OF DR. TOOMER,
DR. TOOMER BASED HIS OPINION
ENTIRELY ON THE REPORT OF
MR. MEN DOZE ZA, HE WAS
SHREDDED ON
CROSS-EXAMINATION AN IN
CLOSING ARGUMENTS BY THE
PROSECUTOR WHO WENT AFTER
HIM ABSOLUTELY UNMERCIFULLY.
>> DID COUNSEL HIRE AN
INVESTIGATOR?
>> NO.
>> HE DID NOT.
>> WAS THERE AN EXPLANATION
AS TO THAT?
TRIAL COUNSEL AT THE
EVIDENTIARY HEARING SAID HE
HAD NO IDEA WHY HE DIDN'T
HIRE AN INVESTIGATOR.
HE ROUTINELY HIRES AN
INVESTIGATOR NOW.
HE JUST DIDN'T DO IT.
>> DID HE HIRE AN
INVESTIGATOR FOR THE GUILT
PHASE?
>> HE DID NOT.
>> WAS THERE AN EXPLANATION
ABOUT THAT?
HE JUST DIDN'T DO IT.
HE DOESN'T KNOW WHY HE
DIDN'T DO.
I TRIAL COUNSEL WAS
INEXPERIENCED THIS WAS THE
FIRST TIME HE HAD THROWN
GONE THROUGH A CAPITAL CASE
TO ITS TRIAL AN ON PENALTY
PHASE AND I THINK HE PUT
IMPLICATION THAT HE PUT A
LOT OF THAT DOWN TO HIS
INEXPERIENCE AT THE TIME.
THERE WAS NO INVESTIGATOR
HIRED.
>> JUST ONE QUICK QUESTION.
YOU HAD SIX SEPARATE HEARING
DATES ON THIS?
>> YES.
>> WHY WAS THAT?
>> THE ATTORNEY OF RECORD AT
THE TIME WAS PREGNANT.
SHE WAS EXPECTING TWINS, SHE
WAS HAVING COMPLICATED
PREGNANCY, IT KEPT BEING
CONTINUED.
>> THE TRIAL JUDGE ENTERED,
I SAY THIS RESPECTFULLY AS
POSSIBLE, A BRIEF ORDER, WAS
THERE EVER AN ATTEMPT TO GET
MORE DETAILED AND
APPROPRIATE ORDER?
FOR THE WEIGHING OF THE
CREDIBILITY ISSUES?
>> UM, AGAIN, I, I CAME ON
THIS CASE WELL AFTER THE
NOTE OF APPEAL WAS FILED.
THERE IS NOTHING IN THE
RECORD THAT SUGGESTS THAT.
I WILL LEAVE MY TIME FOR
REBUTTAL, THANK YOU.
>>> MAY IT PLEASE THE COURT
ASSIST AN ATTORNEY GENERAL
ON BEHALF OF THE STATE.
WIGENS DOES NOT HOLD YOU DO
NOT HAVE TO PROVE --
>> BEFORE WE GET TO THAT, IT
SEEMS TO ME THAT THIS TRIAL
COURT ORDER IS AN ISSUE
WHICH WE NEED TO DISCUSS
BECAUSE AS I READ THE ORDER,
THERE ARE NO FINDINGS IN
FACT IN THE ORDER, EITHER AS
TO THE GUILT PHASE OR THE
OPINION TY PHASE AND THERE
WAS A TIME -- PENALTY PHASE
AND THERE WAS A TIME WHEN
THIS COURT REALLY DID NOT
REQUIRE THAT; HOWEVER, THAT
ALWAYS RUNS INTO PROBLEM
WHERE THERE ARE NO FINDINGS
OF FACT.
WOULD YOU SPEAK TO THE FACT
THAT DO YOU BELIEVE THERE
ARE FINDINGS OF FACT?
>> WELL, THE TRIAL COURT DID
FIND A FAILURE OF PROOF.
>> RIGHT.
AS TO WHAT COUNSEL DID AND
COUNSEL'S EXPLANATION.
>> WELL, WE HAD A COUNT LER
WHO TESTIFIED HE DIDN'T
RECALL ANYTHING AND THE
STATEMENTS ABOUT, YOU KNOW,
I WOULD HAVE HIRED AN
INVESTIGATOR NOW, ALL OF THE
STATEMENTS WERE ABOUT
PLAYED, HE DIDN'T REMEMBER
ANYTHING ABOUT ANYTHING AT
THIS EVIDENTIARY HEARING.
YOU DON'T HAVE LAZARO
TESTIFY, YOU DON'T HAVE
HUMBERTO'S EVIDENCE PUT
FORWARD, YOU HAVE CLAIMS THE
COUNSEL WAS INEFFECTIVE
DOING THIS.
YOU HAVE COUNSEL SAYING
THERE ARE REASONS WHY,
SOMETIMES DURING A TRIAL,
THINGS HAPPEN, BUT I DON'T
RECALL WHAT HAPPENED IN THE
TRIAL, PERHAPS, SOMETHING
DID.
YOU REALLY DO HAVE A FAILURE
OF PROOF BECAUSE COUNSEL IS
PRESUMIVELY MAKING STRATEGIC
DECISION AN UP TO THE
DEFENSE TO REBUT THAT
PRESUMPTION, WOULD I REFER A
BETTER ORDER, CERTAINLY? I
DON'T GET TO WRITE THE
ORDERS FOR THEM.
YOU PREFER I NOT DO THAT.
>> COUNSEL RAISES MANY
ISSUES AS TO ANY OF THOSE
ISSUES WAS THERE
CONTRADICTORY EVIDENCE
PRESENTED AT TRIAL?
>> AS TO ANY OF THE ISSUE,
AS TO THE HUMBERTO TESTIFIED
THAT HE WAS, THAT THE VICTIM
MR. CALDERON WAS INVOLVED.
THERE WAS NO OTHER EVIDENCE
BECAUSE THE ONLY EVIDENCE
THE DEFENSE HAD AT THE TIME
OF TRIAL WAS AN OLD FEDERAL
WITHHOLD OF EJUDDCATION AN
WHILE THEY SAID THEY HAD
WITNESSES WHO HAD PERSONAL
KNOWLEDGE HE WAS INVOLVED
WHEN IT CAME DOWN TO CALL
THOSE WITNESSES, IT TURNED
OUT THAT ALL OF THE WITNESS
KNEW ABOUT WAS THE OLD
FEDERAL WITHHOLD SO THERE
HAS BEEN NO EVIDENCE OR THAN
WHAT WAS PREVENTED AT THE
TRIAL.
>> SO IT SEEMS AS TO
EVIDENCE ON WHICH THERE WAS
CONFLICTING TESTIMONY IN
ORDER TO AFFIRM BECAUSE WE
HAVE NO FINDINGS ABOUT TRIAL
COURT WE WOULD HAVE TO TAKE,
IT SEEMS TO ME, THE EVIDENCE
IN LIGHT MOST FAVORABLE TO
THE DEFENDANT AND IF WE ARE
GOING TO AFFIRM WITHOUT
REMANDING FOR ANOTHER
EVIDENTIARY HEARING.
>> WELL, YOU HAVE TO TAKE
THE EVIDENCE FAVORABLE TO
THE STATE BECAUSE WE ARE THE
PREVAILING PARTY.
WELL, I AM SAYING, USUALLY
YOU ASSUME THE TRIAL COURT
HAS MADE CREDIBILITY,
DETERMINATION.
>> AND WHEN YOU HAVE AN
UNEXPLAINED ORDER, YOU ARE
SUPPOSED TO ASSUME THE TRIAL
COURT REACTED PROPERLY TO
THE EVIDENCE.
HE DON'T HAVE EVIDENCE,
THERE WAS NOTHING PRESENTED
ABOUT ANY AT THIS
EVIDENTIARY HEARING.
NOTHING.
DIDN'T HAVE A SINGLE
WITNESS.
WE HAVE COUNSEL WHO IS
TESTIFYING.
THAT WAS AT THE TIME OF THE
TRIAL.
>> WELL, AT THE EVIDENCEARY
HEARING, THERE IS NO
EVIDENCE WHATSOEVER.
AT THE EVIDENTIARY HEARING,
THERE WAS NOT AN ATTEMPT TO
ADMIT THIS DEPOSITION OF
LAZARO MUCH LESS CALL LAZARO,
AND THE STATEMENT THAT
LAZARO MAKES IN THE
DEPOSITION, THE DEP IS IS
NOT ADMISSIBLE, THE
STATEMENT THAT LAZARO MAKES
THE DEPOSITION THAT IS THE
DEFENDANT TOLD THEM THEY
WERE GOING THERE TO COLLECT
THE DEBT.
WELL, THAT IS HEARSAY, THAT
IS NOT ADMISSIBLE, EVEN IF
YOU CALL LAZARO, YOU DON'T
GET THAT STATEMENT IN.
I WANT TO GO TO THE ISSUE OF
THE GUNSHOT RESIDUE.
FIRST OF ALL, WHAT IS THE
EVIDENCE AT TRIAL AS TO WHO
THE SHOOTER WAS?
>> THE STATE'S POSITION WAS
THE DEFENDANT WAS THE
SHOOTER.
>> BASED ON?
>> BASED ON HUMBERTO'S
TESTIMONY AND THAT THE FACT
THAT THE DEFENDANT'S HAND IS
-- HIS PRINT IS FOUND ON THE
CALL WHERE WE WOULD HAVE
BRACED HIMSELF AS HE LEANED
DOWN TO FIRE GUNSHOTS WHICH
WERE FIRED AT CLOSE RANGE
WHILE THE VICTIM WAS IN
CONTACT WITH THE GROUND.
>> ALL RIGHT.
AS GAR AS THE BULLETS WITH
WHICH THE VICTIM WAS SHOT,
IT CAME FROM, THERE WERE 30
CALIBER.
>> THERE WERE THREE GUNS
INVOLVED.
THE GUN THAT HUMBERTO SAYS
HE HAD AN USED TO HIT.
>> THAT WAS THE 9 MILLIMETER.
>> THE VICTIM OVER THE HEAD
WITH.
THAT GUN HAS NO BULLETS
FIRED OUT OF IT.
>> RIGHT.
>> IT DOES HAVE HAIR AND
STUFF IN THE GUN WHERE IT
WOULD HAVE BEEN USED TO HIT
THE VICTIM OVER THE HEAD.
YOU HAVE THE GUN THAT I
DON'T BELIEVE WE RECOVERED
WHICH WAS THE GUN THAT
EVERYONE TESTIFIED THAT
MR. MENDOZA HAD.
THAT IS THE GUN THAT IS
FIRING THE SHOTS.
WE HAVE MR. CALDERON'S GUN
THAT IS FIRING BACK.
>> WHAT BULLET CALIBER WAS
RECOVERED FROM THE VICTIM?
>> I BELIEVE IT IS A 38, BUT
I AM NOT SURE, YOUR HONOR.
>> WAS THERE TESTIMONY THAT
IT CAME FROM HIS OWN GUN?
>> NO, IT WAS NOT FROM HIS
OWN GUN.
>> WELL, THERE WERE FOUR
BULLETCATIONS FOUND AT THE
SCENE IF I REMEMBER THE
RECORD CORRECTLY.
MR. CALDERON HAD A 38 WHICH
WAS UNDER HIM WHEN HE WAS
FOUND.
AND HUMBERTO TESTIFIED THAT
THE DEFENDANT HAD A 38.
>> AND A NUMBER OF THESE
GUNSHOTS WERE ACTUALLY
INFLICTED AS THE VICTIM IS
LYING ON THE GROUND AT CLOSE
RANGE, SO NOT THE GUN THAT
IS UNDERNEATH HIM AT THAT
POINT THAT IS BEING USED.
>> WELL, BUT THERE WERE,
THERE WERE SOME OF THE .38
CALIBER BULLETS THAT COULD
HAVE BEEN IN THAT IN THE
DEFENDANT'S GUN HAD BEEN
FIRED?
>> YES.
BECAUSE HE HAD FIRED THE
WEAPON OR SOMEBODY HAD FIRED
HIS WEAPON.
>> YES, THE THIRD WEAPON HAD
BEEN FIRED.
MR. CALDERON'S WEAPON HAD
BEEN FIRED.
>> MR. MENDOZA WAS NOT FOUND
UNTIL TWO DAYS AFTER.
>> CORRECT.
>> SO IN WAS NO GUN SHOT
RESIDUE.
>> CORRECT.
>> FOUND ON HIM?
BUY STILL GO BACK TO THE
FACT THAT MY TERN CONCERN IS
THAT THERE WAS NEITHER IN
TESTIMONY BY COUNSEL AS TO
VARIOUS ASPECTS OF THE GUILT
AND THE OPINION TY PHASE ON
IN EFFECTIVE ASSISTANCE OF
COUNSEL AND THIS COURT HAS
BEEN INCREASINGLY CLEAR THAT
THERE HAS TO BE AN
EVIDENTIARY HEARING AND IF
THERE IS EVIDENTIARY HEARING,
THERE HAS TO BE FINDINGS OF
FACT ON ISSUES OF
INEEFFECTIVE ASSISTANCE OF
COUNSEL.
>> I WOULD CERTAINLY PREFER
FORAL FINDING OF FACT THAN
NO EVIDENCE.
WHAT YOU HAVE COUNSEL
TESTIFYING, TO THAT IS NOT
WHAT THEY WOULD DO TODAY.
THEY DON'T EVER SAY, OH, I
MADE A HUGE MISTAKE, HERE IS
WHY I MADE A HUGE MISTAKE.
>> LET ME GO.
WE GOT A LITTLE SIDE TRACKED
ABOUT THIS ISSUE.
TO ME, FRIDAY A JUROR IN THE
GUILT TR OR PENALTY PHASE,
SINCE THIS WAS NOT A
PREPLANNED MURDER AND IT IS
JUSTICE SAID IN HIS DEFENSE,
EVEN WITH THE DEFENDANT
MAYBE BEING THE SHOOTER, IT
WOULD MAKE A HUGE DIFFERENCE
IN THE CASE WHO THE SHOOTER
WAS.
IT WOULD -- OBVIOUSLY, THE A
DEFENSE THOUGHT THAT THE
GUNSHOT RESIDUE ON THE HANDS
OF LAZARO AND HUMBERTO WAS
REALLY SIGNIFICANT BECAUSE
THEY STAKE THEIR NOT BEING,
YOU KNOW, NOT HAVING THE
LAST ARGUMENT, THEY PUT ON A
WITNESS ON THAT SOLE ISSUE.
AS A, AS A TRIAL LAWYER,
WHETHER YOU, IT IS THE FIRST
DEATH CASE OR THE 100th, TO
NOT HAVE YOUR EXPERT
PREPARED ON THE CRITICAL
FACT AS TO WHEN THESE WERE
COLLECTED, WHETHER THAT
WOULD MAKE A DIFFERENCE AND
FOR THIS TO NOT ONLY
UNDERMINE THE CREDIBILITY OF
THE EXPERT BUT OF THE
DEFENDANT, I DON'T SEE AGAIN
SHORT OF EITHER SENDING THIS
BACK FROM EVIDENTIARY
HEARING HOW THIS COULD BE
EFFECTIVE ASSISTANCE OF
COUNSEL, THAT IS THE SOLE
DEFENSE WHICH IS THAT YOU
PUT ON EVIDENCE TO SHOW THAT
SOMEONE ELSE WAS THE SHOOTER
IS COMPLETELY, COME PLOTLY
UNDERMINED BY A SIMPLE FACT,
NOTHING SOPHISTICATED, WHAT
TIME WERE THESE GUN RESIDUE
SAMPLES COLLECTED?
NOW TELL ME HOW THAT CAN BE
EFFECTIVE ASSISTANCE OF
COUNSEL WHEN YOUR SOLE
WITNESS IS PREDICATING HER
FINDINGS ON SOMETHING THAT
IS, WAS NOT EITHER EXPLAINED
OR DISCUSSED BETWEEN THE
EXPERT AND THE, AND THE
LAWYER.
THE TIMING ISSUE COMES UP
BECAUSE THERE IS A LABELING
FROM THE STATE'S WITNESS.
THERE IS TWO INCONSISTENT
FINDS.
COUNSEL WAS AWARE OF THE TWO
TIMES.
THEY HAD DEPOSED THE
TECHNICIAN WHO ACTUALLY TOOK
THEM AND LEARNED WHICH ONE
WAS THE RIGHT TIME, WHICH
ONE WAS THE WRONG TIME, THEY
FULLY KNEW THE FACTS OF THIS
CASE, COUNSEL'S EXPLANATION
WAS, IT DIDN'T MATTER TO HIM
WHAT THE TIMING WAS BECAUSE
THE STATE'S CASE WAS LAZARO
REMAINED ON THE CAR, HAD
GUNSHOT RESIDUE ON HIS HANDS
WHICH HE IS IN THE OUT OF
THIS HE CAR WHERE THE GUN IS
BEING FIRED AN HE --
>> WAS THE EXPERT UNDERMINED
BY THE STATE VERY
EFFECTIVELY BY THE
REVELATION ON CROSS THAT THE
TIME OF THE COLLECTION WAS
AT 7:45?
>> WELL, THE REBUTTAL.
THE REVELATION ON REBUTAL.
>> WOULD YOU AGREE IT WAS
DEVASTATING TO THIS EXPERT'S
CREDIBILITY?
>> WELL, I DON'T BECAUSE THE
EXPERT'S TESTIMONY WAS MORE,
THERE ARE NUMEROUS WAYS YOU
CAN GET GUNSHOT RES DID YOU
ON YOUR HAND.
HAVE LAZARO WITH GUNSHOT
RESIDUE ON HIS HAND.
>> YOU KNOW AT ONE TIME, IT
WOULD BE NICE JUST TO SAY,
YOU KNOW WHAT?
NOT ONLY WAS IT, DID IT
IMPEACH THAT EXPERT TO THE
POINT OF THAT THERE WAS NO
CREDIBILITY ON WHAT THAT
EXPERT SAID, BUT THE STATE,
AS I WOULD DO, IF I WERE THE
STATE, JUMPED OINT, SAID IT
WAS WHOLE, THIS IS BUILT ON
A SHAM, SO WHY?
>> THE STATE CERTAINLY
JUMPED ON ISSUE.
>> SO THE ONLY THING THAT
THEY DO IS THEY, THEY SCREW
IT UP AND THEN ISSUE, SINCE
THEY THOUGHT IT WAS
IMPORTANT ABOUT WHO THE
SHOOTER WAS THEY JUST FLIP
FLOP ON THAT.
I MEAN WITHOUT FINALINGS
FROM THE TRIAL COURT THAT
WAS REASONABLE TRIAL
STRATEGY HOW DO WE AFFIRM
THAT ORDER?
>> WELL, YOU DO HAVE THE
TRIAL COURT DISCUSSING THE
FACT THERE IS TRAGEDY AND IT
IS STRATEGIC, THEN THE TRIAL
COURT FINDING THERE WAS NO
EVIDENCE TO MEET EITHER
STRICKLAND SO I BELIEVE DO
YOU HAVE A FINDING.
>> WHAT IS STRATEGIC TO
CHANGE WHO THE SHOOTER WAS?
THAT WAS NOT STRATEGIC WAS
IT?
>> THE STATE'S POSITION IS
IT WAS.
AND YOU HAVE TO READ IT IN
THE CONTEXT OF THE ENTIRE
OPENING BECAUSE IT WAS NOT
REALLY WHO WAS THE SHOOTER.
THE OPENING WAS MORE THE
CUELLAR BROTHERS ARE
STANDING HERE LINE, THEY DID
IT.
THEN THERE IS BRIEFLY
HUMBERTO WAS THE SHOOTER AND
IN CLOSING AFTER YOU HAVE
DECIDED NOT TO CALL LAZARO
BECAUSE YOU HAD HUMBERTO
EVIDENCE KEPT OUT AND THERE
IS A PROBLEM.
>> THEY PROMISED THEY WOULD
CALL LAZARO.
WHAT IS EXPLANATION WHY THEY
DON'T?
THEY DIDN'T HAVE
EXPLANATION?
>> THEY DID NOT RECALL.
THEY SAID AT THE TIME OF
TRIAL, IT WAS STRATEGIC
DECISION, DECISION
STRATEGIC, WHERE YOU HAVE A
THOROUGH INVESTIGATION,
THERE HAS BEEN NOTHING SHOWN
HERE THEY DID ANYTHING, BUT
A THOROUGH INVESTIGATION OF
THIS CRIME.
THEY DID NOT TESTIFY TO
BEING UNAWARE OF ANY FACTS
AND THEY SIMPLY COULDN'T
EXPLAIN WHAT THE STRATEGY
WAS WELL THAT IS THE
DEFENSE'S PROBLEM WITH ALL
DUE RESPECT BECAUSE IT IS UP
TO THEM TO OVERCOME THE
PRESUM SON IT IS STRATEGIC
PARTICULARLY WHEN YOU HAVE
COUNSEL SITTING THERE SAY ON
THE RECORD FROM THE TIME OF
TRIAL.
WE MADE STRATEGIC DECISION
NOT TO CALL HIM.
AND WHEN YOU HAVE THE MOST
IMPORTANT PART OF LA ZAR
RE'S TESTIMONY IS HEARSAY
THAT YOU ARE NEVER GETTING
IN.
>> THERE IS A PROBLEM IN
THIS CASE WITH IF MENDOZA
WAS NOT THE SHOOTER WITH THE
FACT THERE IS NO ANALYSIS?
>> WELL, THERE WOULD BE, BUT
FOR THE FACT AGAIN, YOU HAVE
THE HAND PRINT RIGHT THERE
ON WHERE THEY ARE LEANING
DOWN SHOOTING INTO THE
VICTIM AND DELIVERING THESE
GUNSHOT WOUNDS SO THE
PHYSICAL EVIDENCE SHOWS.
>> SO THE CASE DOES DEPEND
UPON MENDOZA BEING THE
SHOOTER?
IT HAS TO.
>> I BELIEVE THERE WOULD BE
A PROBLEM IF MENDOZA WAS NOT
THE SHOOTER.
WITH THE HAND PRINT WHERE
THE PERSON IS PRAISE BRACING
THEMSELF TO LEAN DOWN TO
SHOOT TO THE VICTIM WHERE
YOU HAVE CONTACT WOUNDS
WHERE THE BODIES ON THE
GROUND, YOU KNOW WHO THE
SHOOTER IS FROM THE HAND
PRINT, THE GUNSHOT RESIDUE
IS NOT THAT IMPORTANT.
AND WITH REGARD TO THE
PENALTY PHASE, WE HAD
COUNSEL WHO HAD THE
DEFENDANT EVALUATED BY THREE
MENTAL HEALTH EXPERTS WHO
SPENT ACCORDING TO COUNSEL
THEY HAD A WONDERFUL RAPPORT
WITH THE FAMILY, THEY SPOKE
TO THEM CONSTANTLY, THEY
KNEW WHAT WAS GOING ON IN
THE DEFENDANT'S LIFE, YOU
BASICALLY HAVE POST-CONVICTION
EVIDENTIARY HEARING
CUMULATIVE EVIDENCE.
>> MY CONCERN IS, THERE WAS
A LOT OF TESTIMONY IN THE
PENALTY ABOUT THE DEFENSE
LAWYERS ASSUMED THAT THIS
WAS NOT GOING TO BE A DEATH
PENALTY CASE AT THE MOST
THIS WAS GOING TO BE A
MURDER CASE AND HE WOULD
RECEIVE LIFE IN PRISON, THAT
COLORED THE WAY THEY
APPROACHED THIS CASE.
>> BUT YOU HAVE THEM
TESTIFYING THAT, YES, OUR
APPROACH TOP THIS CASE WAS
THIS WAS JUST FELONY MURDER,
IT DOESN'T DESERVICE THE
DEATH OPINIONTY, BUT ALSO
HAVE HIM EVALUATED BY THREE
MENTAL HEALTH EXPERT, YOU
HAVE HIM SITTING THERE
DISCUSSING WITH THE FAMILY,
GETTING RECORDS FROM CUBA TO
PRESENT ABOUT MENTAL HEALTH
PROBLEM, SCHOOL PERFORMANCE
FROM CUBA WHICH IS YES EP
TSES UP IN MENTAL HEALTH
TREATMENT IN CUBE ABOUT AND
THE POST CONVICTION
EVIDENTIARY HEARING IS
LARGELY CUMULATIVE TO WHAT
WAS TESTIFIED TO.
YOU HAVE THE ONLY
NON-HEARSAY SUPPORT BECAUSE
THE MOTHER TESTIFIED I
ASSUMED HE WAS USING DRUGS
BECAUSE OF THIS, THAT AND
THE OTHER.
THE ONLY WITNESS WHO
TESTIFIED ABOUT DRUG USE AT
THE EVIDENTIARY HEARING WAS
HIS FRIEND WHO SAY, YEAH, WE
USED MARIJUANA TOGETHER IN
HIGH SCHOOL, I HADN'T BEEN
AROUND HIM.
I SAW HIM, FROM HIS
APPEARANCE, I ASSUMED HE WAS
USING DRUGS.
>> SO DO YOU THINK THAT EVEN
SEEING ALL OF THAT PENALTY
PHASE EVIDENCE ON THE LIGHT
MOST FAVORABLE TO THE
DEFENDANT THAT WE COULD FIND
UNDER STRICKLAND IT DOES NOT
UNDERMINE CONFIDENCE THE
OUTCOME?
>> WELL, THE PROBLEM IS, YOU
HAVE THE EVIDENCE PRESENTED.
THE TRIAL COURT MAY NOT HAVE
ACCEPTED THE EVIDENCE AT THE
TRIAL, BUT IT WAS PRESENTED
IT IS NOT COUNSEL'S FAULT.
>> WELL, HOW DID, I GUESS,
SHORT OF THE TRIAL JUDGE IN
THE CASE EVALUATING WHAT WE
SAY IN TERMS OF CUMULATIVE
TESTIMONY IS THE QUALITY AND
THE QUANTITY OF THE
MITIGATION, AND MY CONCERN
IS, AS YOU POINT OUT,
WITHOUT THE ORIGINAL TRIAL
JUDGE FINDING ANY MITIGATION
THAT WE HAVE GOT TO AT LEAST
AT POINT INDULGE IN THE AYOU
SUMTION WAS IT WAS NOT
COMPELLING WE CAN'T TELL ON
THE RECORD WITHOUT SOME
EVALUATION AS TO WHETHER IT
WAS MUCH MORE COMPELLING
PRESENTATION OF MITIGATION
AND AGAIN WITH THE 75 AND
FELONY MURDER AN AND A
QUESTION ON THE DEATH
PENALTY THIS BECOMES PRETTY
CRITICAL.
>> WELL, THE PROBLEM IS, YOU
ARE STILL NOT, SOMEBODY IS
GOING TO HAVE TO ERAL WAIT
IT ON THE RECORD BECAUSE THE
ORIGINAL TRIAL JUDGE HAS
BEEN RECUSED HE IS NOT EVEN
ON THE BAEFERN! BECHB
ANYMORE.
>> THE ORIGINAL TRIAL JUDGE
>> HE IS NOT ON THE BENCH
ANYMORE SO YOU ARE GOING
HAVE TO HAVE SOMEONE
EVALUATING IT IS ABOUTED ON
THE RECORD TO BEGIN WITH.
>> UNLESS WE HAD AN ORDER A
NEW EVIDENTIARY HEARING.
WELL, BUT THAT NEW JUDGE IS
STILL, HE IS NOT GOING TO
HAVE THE OPINION TY PHASE
PRESENTATION.
HE IS STILL GOING TO HAVE TO
BE EVALUATING IT BASED ON
THE RECORDS FROM THE PENALTY
PHASE.
>> ABOUT THE ORIGINAL TRIAL.
YES.
>> AND WHAT WAS IT?
>> YOU CAN LOOK AT THAT
RECORD AS WELL AS A NEW
TRIAL JUDGE.
>> THE PART THAT WE ARE
MISSING IS WHETHER A TRIAL
JUDGE HEARING THE TESTIMONY
PRESENTED AT THE EVIDENTIARY
HEARING WOULD HAVE CONCLUDED
THAT THIS WAS QUALITATIVELY
COMPELLING MITIGATION, WE
DON'T HAVE THAT HERE.
>> WELL, DO YOU HAVE THE
TRIAL JUDGE SAYING IT IS NOT
BECAUSE HE DID NOT CONSIDER
EITHER STRICKLAND MET AND IF
HE HAD CONSIDERED SUCH
COMPELLING MITGATION, HE
WOULD HAVE FOUND STRICKLAND
MET.
>> SO THE RULE THAT SAYS
THERE HAS TO BE DETAILED
FINDINGS OF FACT IS --
>> WELL, I BELIEVE THAT THIS
IS AN OLD RULE CASE.
THIS IS BEFORE 2001 MOTION
SO THAT IS NOT THE RULE THAT
APPLIES.
>> THAT IS WHAT YOUR
POSITION WAS WHEN THE TRIAL
JUDGE ENTERED THIS ORDER
THAT THERE WAS NO REASON TO
ASK FOR MORE DETAILED
FINDINGS OF FACT?
>> MY POSITION WAS THAT I
HAD HADER, PERIENCE WITH
THIS TRIAL COURT, I HAD
DIFFICULTY GETTING HIM TO
MAKE DEFAILED FINDINGS OF
FACT.
DY NOT PARTICULARLY
CONSIDERING THAT THE CASE
WAS UP ON APPEAL.
>> UNFORTUNATELY THIS TRIAL
JUDGE WAS VERY ILL WHILE
THIS WAS GOING ON.
>> HE BECAME ILL LATER. COURSE OF
IT.
--
>> WELL --
>> JUST -- I WANTED TO
CERTAINLY WOULD PREFER A
BETTER ORDER ONE THING.
>> AND I'M STUCK WITH WHAT I
HAVE.
>> ONE THING YOU SAID, AND I
WANT TO MAKE SURE THAT THERE
IS NOT A MISAPPREHENSION
THIS COURT SAID NUMEROUS
TIMES OF COURSE THAT THE
STATE CAN NOT PREPARE A
SENTENCING ORDER BUT I DON'T
RECALL WHEN IT COMES TO
POSTCONVICTION ORDERS THAT
WE HAVE SAID THAT CAN'T BE
SOME ASSISTANCE FROM EITHER
SIDE, AND SUBMITTING
FINDINGS OF FACT DO YOU
THINK WE HAVE SAID THAT.
>> IF YOU SAID THAT YOU
WOULD PREFER WE NOT DO IT.
AND SINCE OF YOU TOLD ME
THAT YOU WOULD PREFER I NOT
DO IT.
-- USUALLY DON'T DO IT.
>> THERE IS A CASE THAT SAYS
THAT WE DON'T WANT --
>> I BELIEVE IN PATTON YOU
SAID WOULD YOU PREFER TRIAL
COURT WRITE THEIR OWN ORDER
THE STATE --
>> I -- STILL A PRECOMMON
PRACTICE TO BOTH SIDES --
SUBMITTED AT LEAST,
POSTHEARING MEMORANDA.
>> THERE ARE POSTHEARING
MEMORANDA IN THIS CASE.
>> AND PROPOSED FINDINGS.
>> THERE IS NO PROPOSED
FINDINGS OF FACT THERE ARE
CERTAINLY ARGUMENTS ABOUT
WHAT FACTS SHOULD BE FOUND
IN POSTHEARING MEMORANDA.
>> HAVE WE DISCOURAGED THE
SUBMITIGATION OF PROPOSED
FINDINGS AS OPPOSED TO --
>> IN PATTON DID SUGGEST
THAT YOU WOULD PREFER THE
STATES NOT DRAFT THE ORDER.
YES.
>> I'M NOT SAYING DRAFT THE
ORDER I'M SAYING, SUBMIT
PROPOSED FINDINGS OF FACT.
>> I'M JUST CAUTIOUS WHEN
YOU HAVE TOLL ME YOU DON'T
WANT ME DOING SOMETHING TO
NOT DO IT.
THAT IS ALL.
>> -- YOU ARE PASSED YOUR
TIME OF.
>> THANK YOU.
>> STATE REBUTTAL.
>> THANK YOU YOUR HONOR I
WOULD LIKE TO RETURN TO THE
GUNSHOTS!!$$!!!!!!!!!!!!!!
GUNSHOTS, RESIDUE, EXPERT
TESTIMONY.
I THINK THE POINT THAT I
PERHAPS DIDN'T BRING OUT
FULLY ON MY CASE IN CHIEF
WAS THAT THE REASON THAT
THIS WAS SO DEVASTATING WHAS
WAS NOT JUST THE IMPEACHMENT!!$$!!!!!!!!!!!!!!!!!!!!
IMPEACHMENTS OF THE EXPERT
HIMSELF BUT THE IMPEACHMENTS
OF THE POTENTIAL IMPEACHMENT
OF HUMBERTO$$'S TESTIMONY
NEVER GOT OUT OF THE CAR --
THEREFORE COULDN'T HAVE BEEN
THE SHOOTER, THIS VERY MUCH
GOES TO ADDITIONAL
IMPEACHMENT AND ADDITION TO
THAT WHICH WAS BROUGHT OUT
ON CROSS-EXAMINATION OF
UMBERTO THAT LASRO WAS VERY
MUCH INVOLVED IN THE
SHOOTING AND THAT HIS
GUNSHOT RESIDUE FOUND ON HIS
HAND WAS CONSISTENT NOT ONLY
WITH HAVING HANDLED THE GUN
BUT HAVING FIRED THE GUN, SO
IT DOESN'T ONLY GO TO THE
IDEA THAT IT WASN'T THAT IT
WASN'T -- WHO WAS SHOOTER IT
GOES TO THE IDEA THAT IT WAS
POSSIBLY LASRA POSSIBLY
HUMBERTO HUMBERTO$$'S
TESTIMONY TO BE DISCREDITED
FOR FURTHER GROUNDS THAT WAS
AN OPPORTUNITY A GOLDEN
OPPORTUNITY FOR TRIAL
COUNSEL HAD THEY ONLY USED
THEIR EXERT PROPERLY
PREPARED THEM PROPERLY AND
MADE SURE THEY WERE AWARE OF
THE FAILURE OF FACTS WHICH
THE EXPERT WOULD BE RELYING
ON.
I THINK THAT IS VERY
IMPORTANT.
AS TO THE PENALTY PHASE.
>> LET ME ASK YOU A QUESTION
WHATS WERE THE STATUS OF
LAZARO AT THE TIME OF THE
TRIAL IF THIS CASE WAS HE A
STATE WITNESS WHAT WAS GOING
ON.
>> HE PLED ABOUT YEAR BEFORE
YOUR HONOR.
>> BEFORE THIS TRIAL.
>> YES, HE PLED IN I THINK
IT WAS -- I HAVE IT WRITTEN
DOWN, IN -- 19 -- 93.
>> SHOW HE WOULD HAVE BEEN
AVAILABLE FOR EITHER
DEFENDANT OR THE STATE TO
CALL AS A WITNESSES IN.
>> EXACTLY, HE HAD --
ENTERED A PLEA AGREEMENT IN
MAY OF 93 THIS TRIAL WAS IN
FEBRUARY OF 94.
I -- HE PLED TO -- O
CONSPIRACY AND ATTEMPTED
ARMED ROBBERY -- AND AS PART
OF HIS PLEA AGREEMENT HE HAD
AGREED TO TESTIFY TO THE
STATE IF THEY SO WISHED.
AGAINST MR. MENDOZA ABOUT
THE HE DIDN'T HAVE TO
TESTIFY AGAINST HIS BROTHER
SHOULD HIS BROTHER REACH
TRIAL.
LAZARO WAS DEPOSED LATER
AFTER THAT, BY TRIAL
COUNSEL, AND ONE CAN ONLY
ASSUME AS A RESULT OF HIS
DEPOSITION THE STATE DECIDED
NOT USE HIM IN MR. MEN
DOEDA'S TRIAL.
>> IF WE FIND THE FINDINGS
OF FACT, ARE -- DID NOT ARE
SINCE NONEXISTENT, WHAT
WOULD BE THE REMEDY IN YOUR
VIEW?
>> REMEDY WOULD BE A NEW
TRIAL.
NOT WHY NOT NEW EVIDENCE
EVERY DAY?
THAT IS SEVERAL -- NOT
REBELIEF MENDOZA ASKED FOR
MR. MENDOZA SUBMITS HE IS
ENTITLED TO NEW TRIAL AND/OR
NEW PENT INDICATION IN
ALTERNATIVE IF THE COURT
FELT THE NEED FOR FIRLT
EVIDENTIARY DEVELOPMENT THAT
WOULD BE IF YOU LIKE THE
SECOND BEST.
>> THIS GUN -- POWDER
RESIDUE JUST LOOKING AT OUR
1997 OPINION, WE DON'T
MENTION ANY.
I I MEAN THAT WASN'T A
FACTOR WHEN IT WAS HERE
BEFORE.
AS FAR AS GUNFIRE RESIDUE.
BEING -- SIGNIFICANT PIECE
OF EVERY DAY.
>> I DON'T KNOW IF IT WAS
RAISED ON APPEAL, YOUR
HONOR.
I DON'T KNOW, I I MEAN, I
WOULD DRAW THE $$COURT'S
ATTENTION TO THE MATTERS
RAISED IN THE STATE HABEAS
PETITION MR. MENDOZA
SIMULTANEOUSLY FILED IN
WHICH THERE WERE SEVERAL
ISSUES WHICH HE RAISED
REGARDING THE -- LOWER COURT
THE TRIAL COURT KEEPING OUT
-- THE EVERY DAY, AND I
WOULD ASK EE THE EVIDENCE I
WOULD ASK THE COURT TO LOOK
AT HABEAS ARGUMENTS FOR
INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IN
CONJUNCTION WITH THE
ARGUMENTS!!$$!!!!!!!!!!!!!!!!
ARGUMENTS, FOR INEFFECTIVE
-- OF TRIAL COUNSEL ON THE
SUBJECT OF THIS PARTICULAR
BRIEFING, AND THE
EVIDENTIARY HEARING.
IT SEEMS WE MUST HAVE
ASSUMED FOR THE PURPOSE OF
THE DIRECT APPEAL THAT --
THAT MENDOZA WAS THE
SHOOTER, BECAUSE AS WAS
REFERENCED THERE IS NO -- AN
ALS AS IS.
>> RIGHT.
BUT AGAIN IT IS NOT
SOMETHING THAT I "I DON'T
HAVE BRIEF OF THE DIRECT
APPEAL IN HAND, BUT, I -- I
BELIEVE IT WOULD NOT PUT --
CERTAINLY, THE PENALTY PHASE
ISSUE WAS VERY MUCH --
AROUND THE LACK OF
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION.
>> UP TO THE MITIGATION I
THINK WE NEED -- ESPECIALLY,
TESTIMONY RELATING TO
MR. MENDOZA'S POST TRA
MATTERIC STRESS DISORDER
THIS IS SOMETHING THAT
SHOULD HAVE BEEN
INVESTIGATED WASN'T
INVESTIGATED AT THE TIME OF
TRIAL.
MR. MENDOZA HAD A FAIRLY
HORRIFIC SOCIAL HISTORY BOTH
IN CUBA AND IN PERU.
AND THIS IS SOMETHING THAT
REALLY TRIAL COUNSEL SHOULD
HAVE INVESTIGATED.
WITH A LOT MORE DETAIL.
O.
>> ONE BRIEF MOMENT THERE.
WAS MEANTAL HEALTH
EVALUATION KNOWN OF THE
MENTAL HALT EVALUATORS
DIAGNOSED PTSD.
>> SURE BECAUSE THEY DIDN'T
HAVE A -- HISTORY.
-- DR. TUMOR RELIED ENTIRELY
ON MR. MENDOZA'S SELF-REPORT!!$$!!!!!!!!!!!!!!!!!!!!
SELF-REPORTING HE WAS THE
ONLY ONE WHO TESTIFIED.
>> BUT WITH OUR ASSISTANCE
OF YOU EXHAUSTED ALL OF YOUR
TIME WE THANK YOU VERY MUCH.
>> -- THE NATURE OF THE
ORDER WE'LL TAKE THIS CASE
UNDER --
>> THANK YOU VERY MUCH.
>> THANK YOU
THE CLERK: PLEASE RISE.