MARSHA L: PLEASE RISE. PLEASE BE SE ATED.

CHIEF JUSTICE: BEFORE WE CALL THE LAST CASE ON THE CALENDAR , I WOULD LIKE TO ACKNOWLEDGE CERTAIN VERY SPECIAL VISITORS THA T WE HAVE TODAY IN OUR COURTROOM. FIRST OF ALL TO MY RIG HT , I WOULD WEL COME ON BEHALF OF THE COURT , THE STUDENTS FROM THE TA MPA HILLSBOROUGH COUNTY YOUTH COUN CIL . WE HAVE VA RIOUS HIGH SCHOOLS AND SELECTED FOR THIS VISIT ON THEIR EXCELLENT ACADEMIC RECORD, AND THEY ARE ESCORTED BY MRS. RENE COCROFT.THAT IS THE FIRST GROUP , AND R AISE YOUR HANDS OVER THERE. ALL RIGHT. OKAY. ALL RIGHT . THE SECOND G ROUP , ALSO ON THE RIGHT , ARE STUDENTS FROM HILLSBOROUGH COUNTY WHO , AND THIS IS REALLY REMARKABLE , I COMMEND EACH OF YOU , A FTER PARTICIPATION IN AF TER -SCHOOL PROGRAM SPONSORED BY THE RED LAND CHRISTIAN MIGRANT ASSOCIATION , EXCEL ACADEMICALLY B Y EA RNING A 3.5-PLUS G.P. A. , THIS POST GRADUATION PERIOD . CONGRATULATIONS TO ALL OF YOU AND WE HOPE YOU CONT INUE WITH THAT EXCELLENCE TODAY AND TODAY THEY ARE ESCORTED BY THEIR TE ACHER OR E S CORT , T ONY VALDEVANAS. THIS GROUP , THANK YOU AND CONGRATULATIONS TO YOU. AND LASTLY TO MY LE FT FROM THE BROWARD COUNTY PUBLIC SCHOOLS, WE UNDER EACH OF YOU RECE NTLY PARTICIPATED IN AND WERE WINNERS IN THE ANNUAL PRESIDENT 'S ES SAY AND ART CONT EST, AND THEY ARE ESCORTED BY MR . J OEL VOSS,AN ATTORNE Y FROM BROWARD COUNTY. WE THANK YOU FOR BEING HERE , AND WITH THAT WE WILL HEAR OUR LAST CASE, WHICH I S , I KNOW I HAVE IT HERE. GET MY NOTES. SIMMONS VERSUS STATE OFFLORIDA.

MAY IT PLEASE THE COURT. MY NAME IS J ANIS ORR. IT IS WITH GR EAT HO NOR THAT I RENTER I CAN SIMMONS. IT IS ALSO IT IS WITH GREAT HONOR THAT I REN TER I CAN SIMMONS AND ALSO WITH THAT I REPR ESENT E RIC SIMMONS . IT IS AN HONOR TO APP EAR BEFORE YOU . BUT WE MUST BE HERE TODAY TO B RING CRE DIT TO THE ER RORS IN THE SY STEM OF JUSTICE . WITH TIME PERMITTED TODAY

MI SS ORR , ARE YOU WITH THE PU BLIC DEFENDERS OFFICE? OR ARE YOU AN INDEPENDENT ATTORNEY ?

YES. WERE YOU HI RED BY THE DEFENDANT IN THIS CASE? M ORE OR LESS THE FAMILY. THEY FELT THIS CASE NE EDED ASSISTANCE.

SI NCE YOU HAVE BEEN INTERRUPTED ALRE ADY , ONE OF THE ISSUES THAT YOU DISCUSSED THROUGHO UT YOUR BRIEF, REALLY, IS THE SUFFICIENCY OF THE EVIDENCE ISSUE.

YES, SIR.

WOULD YOU, AND I ASS UME YOU IN TEND TO ADDRESS THAT HERE TODAY.

YES, SIR.

BY YOUR , W OULD YOU TAKE THE ELEMENTS OF THE C R IME OF FIRST-DEGREE MURDER AND TELL US WHICH ELEMENT YOU FEEL WAS NOT PROVEN IN THIS PARTICULAR CASE, OR WHICHTHERE WASN'T SUFFICIENT EVIDENCE PRESENTED TO THE JURY , YOU KNOW, WHICH RENDERED A VER DICT OF GUILTY , SO WOULD YOU TAK E IT ELEMENT BY ELE MENT , FOR US , AND THEN DEMONSTRATE IN YOUR VIEW AND THROUGH YOUR AR GUMENT , WHERE THE PROOF WAS NOT THERE FORA PARTICULAR ELEM ENT.

I THINK THE

I THINK THE ARGUMENT GOES TO THE SEARCH ISSUES , WHICH WERE PREVALENT , BUT TH OSE ISSUES DEAL WITH THE SEARCH ISSUE , AND HOWEVER WE GOT THERE

YOU CAN FAIRLY AD DRESS THE MOTIONS TO SUPPRESS , BUT ASSUME FOR RIGHT NOW THAT THE EVIDEN CE THAT WENT I N WHERE THE JUDGE DENIED THEMOTION TO S UPPRESS , WAS VALID EVIDENCE , WOULD YOUPOINT OUT T O US , I MEAN, DO YOU ST ILL HAVE AN ARGUMENT THE N?

YES, SIR.

ON THE SUFFICIENCY OF EVIDENCE?

YES.

WHAT IS THAT?

THE ISSUES ON THAT POINT ARE , SIR , THE ONLY REAL HARD EVIDENCE THAT THEY HAD , PHYSICAL EVIDENCE , WAS THE SUCCEED CUS HION . THERE WERE SL IGHT , THE RE WAS NO CONNECTION BETWEEN , LET ME STA RT THIS OVER.THERE ARE THREE DIFFERENTCASES.IF YOU WANT , DO YOU SPECIFICALLY WA NT THE HOMICIDE?

LET US START WITH THE PROPOSITION , THERE IS NO QUESTION IN THIS CASE THAT THERE WAS A VI CTIM , IS THAT CORRECT?

YES.

SO YOU ARE NOT CHALLENGING THE FACT THAT THERE WAS A KILLING.

OF COURSE.

AND THAT IT WAS AHOMICIDE.

YES.

IS THAT CORRECT?

YES.

ALL RIGHT. NOW, IF I UNDER IT CORRECTLY , THE STATE FIRST OF ALL , HAD EVIDENCE FROM SEVE RAL WITNESSES THAT YOUR CLIENT'S AUTOMOBILE WAS SPOTTED AND IDENTIFIED BY THESE WITNESSES THAT HAD NO OTHER CONNECTION , TO THE CASE , UNDER CIRCUMSTANCES IN WHICH APPARENTLY THE VIC TIM WAS INSIDE AND ATTEMPTING TO GET OUTSIDE , AND AS KING FOR H ELP. LET'S JUST TAKE THAT P IECE OF EVIDENCE , YOU KNOW

THERE WAS JUST

GO AHEAD. WAS THERE , WAS THAT EVIDENCE PRESENTED BY THE STATE?

THAT EVIDENCE WAS PRESENTED.THE PROBLEM WITH THAT EVIDENCE IS THERE WAS ONLY ONE WIT NESS WHO ACTUALLY CLAIMS THAT SHE SAW THE VICTIM FORM THE VICTIM , THE PERSON WHO SHE SAW , THE DESCRIPTION DID NOT MA TCH THE VICTIM AT THE TIME THAT SHE MADE THE R E PORT . NOR DID THE DESCRIPTION OF THE VEHICLE.

BUT WE END UP , INSOFAR AS CREDIBILITY AND EVALUATIONS L IKE THAT THAT D RAW LI NES, THAT IS ALL FOR A JURY T O SORT OUT, IS IT NOT?

CORR ECT.

SO HERE WE HAVE TO , REALLY , TAKE THE CASE IN THE LIGHT M OST FAVORABLE TO THE STATE, WHO PREVAILED IN THIS CASE, ACCORDING TO THE JURY. RIGHT?

DE NOVO REVIEW YOU DO N'T HAVE TO

SO NOW WITH THE JURY HAVING SEND THE TESTIMONY OF , FIRST OF ALL , THE ONE WITNESS THAT IDENTIFIED THE VICTIM ATTEMP TING TO GET OUTOF THE DEFENDANT'S CAR , AND THEN AN OTHER WITN ESS, WHO, ALSO, IDENTIFIED THE DEFENDANT'S CAR AT THE SAME LOCATION, AND IDENTIFIED THAT THERE WAS A WO MAN ATTEMPTING TO ES CAPE FROM THE AUTOMO BILE AT THAT TIME. IS THAT CORRECT?

YES.

OKAY.

AND THAT WOMAN, A S THAT WOMAN WAS IDENTIFIED , WAS WEARING WHITE , SPECIFICALLY A WHITE T- SHIRT .

WELL , SEE, AGAIN, WHAT YOU ARE POINTING OUT TO US , ARE ISSUES FOR THE FACT FINDER TO SORT OUT. THAT IS WHY I AM HAVING SOME DIFFICULTY , LET M E OPEN THE Q UESTION AGAIN. WHAT , IN TERMS OF THE E LEMENTS OF HO MICIDE , FIRST-DEGREE MURDER , WHAT ELEMENT IS IT THAT YOU ARE CONTENDING WAS NOT PROVEN IN THIS CASE?

YOUR HONOR , I BELIEVETHAT THE ISSUE IS THE FACT THAT THE EVIDENCE THAT WAS PRESENTED , WAS NOT , THE FACT THAT THE JURY BOUGHT IT , IS FINE , BUT I DON'T BEL IEVE THAT YOUR REVIEW NEEDS TO BE STRICTLY LI MITED AS TO WHETHER OR NOT THEY COULD CONCEIVABLY GET THERE. THEY OBVIOUSLY CONCEIVEBLY COULD BECAUSE THEY DID. I DON'T BELIEVE THAT THAT MAKES THE EVIDENCE SUFFICIENT ON YOUR REVIEW. AND IF I AM IN ERROR ON THAT , I APOLOGIZE , BUT I THOUGHT THAT YOUR REVIEWS IS A DE NOVO REVIEW , IN WHICH CASE YOU LOOK AT THE EVIDENCE TO SEE WHETHER , IN FACT, THERE IS SUBSTANTIAL EVIDENCE

IT IS NOT A DE NOVO REVIEW, IS IT , IN THE SENSETHAT WE HAVE TO TAKE THECASE NOW THAT THE JURY HAS ADJUDICATED IT IN THE LIGHT MOST FAVORABLE ON THE STATE, DO WE NOT?

BUT I DON' T BELIEVE THAT YOU HAVE TO TAKE IT IN THE LIGHT MOST FAVORABLE TO THESTATE WITH BLINDERS ON , ANDI THINK THAT IGNORING THEFACT THAT THE TESTIMONY WAS THAT SHE HAD ON WHITE WHEN SHE WAS IN THE CAR , WHOEVER THIS SHE WAS , WITH SH OR T BROWN HAIR, IS NOT

WHO HAD TO DECIDE, THEN , WHETHER THAT WITNESS SAW

A JURY.

OR SAW SOMEBODY ELSE?

A JURY HAD TO MAKE THAT DETERMINATION.

WELL , SO AREN'T WE, THEN, TO TAKE IT , SINCE THE JURY FOUND YOUR CL IENT GUIL TY, THAT THE JURY DECIDED THAT , YES , THAT WAS THE VICTIM?

I GUESS IN MY Q UESTION , IS WHAT WOULD BE THE POINT IN YOUR REVIEWING IT , IF YOU JUST HAVE TO TAKE WHAT THEY SAID.

O KAY.

I BELIEVE THAT THERE IS A SERIOUS ISSUE THERE.

SO YOU WOULD HAVE U S REEVALUATE THE EVIDENCE AND SUBSTITUTE OUR VIEW THAT WE WOULD CONCLUDE AS THE FACT FINDERS?

I DON'T THINK YOU WOULDHAVE TO SUBSTITUTE YOUR OPINION . I THINK YOUR FACTS SHOULD NOT SUBSTANTIATE THE JURY'S FINDINGS AND I THINK THAT ISTHE ISSUE. THERE ARE TREMENDOUS LEGALISSUES THAT GO TO THAT AS WELL. HOWEVER, I THINK THAT YOUNEED TO TAKE A LOOK AT WHETHER OR NOT, FOR INSTANCE, THE FACT THAT THE IDENTIFICATIONS WERE SUCH THAT THEY WERE SO HI GHLY SUGGESTIVE THAT THE , THEY WERE, THEY CHANGED TREMENDOUSLY, BETWEEN WHAT WAS ACTUALLY SEEN AT THE T IME AND WHAT WAS SEEN LATER. THE FACT THAT THE JURY WAS NOT PERMITTED TO HEAR THE DEFENSE EXPERT ON WHY WITNESS TESTIMONY , HOW THAT CAN HAPP EN, HOW TH OS E CHANGES CAN OCCUR, I BELIEVE , WAS HIGHLY PREJUDICE DI BBLE ADDITIONAL TO THE DEFE NSE PREJUDICIAL TO THE DEFENSE, BECAUSE THE JURY IS GOING TO JUST BELIEVE WHAT THEY HEAR IN COURT.

BUT THOSE ARE ALLSEPARATE ISSUES ON AP PEAL , ARE THEY NOT?

YES, THEY ARE.

IT DOES NOT INCLUDE SUBSTANTIAL COMP ETENT EVIDENCE AS TO WHETHER THE DEFENDANT COMMITTED THE MURDER?

I THINK THAT, BEGIN THE CHANGE IN THE IDENTIFI CATION TESTIMONY , EV EN IF NO BODY SAW THE DEFENDAN T IN THAT CAR WHICH WAS DESCRIBED BY BOTH WITNESSES AS A COR SICA , GIVEN THAT FACT AND NOB ODY EVER SAW MR . SIMMONS IN THAT VEHICLE , AND SO THE PERSON THAT WAS SEEN WAS WEARINGWHITE , SHE AT A MINIMUM, HADTO GO CH ANGE CLOTHES.

WE HAVE THE DEFEND ANT'S CONFESSION, DON'T WE?

NO, SIR. THERE IS NO CONFESSION.

I GUESS IF YOU FOUND THE DNA, THEN , I DID I T , DIDN'T HE SAY SOMETHING TO THAT EFFECT?

NO. WHAT HE SAID APPARENTLY WHICH WAS NOT ON TA PE, BECAUSE THE LAW ENFORCEMENT OFFICERS SOME HOW STOPPED TAPING THE INTERVIEW IN THE MIDDLE OF THE INTERVIEW , THE OFFICER'S TESTIMONY WAS THATHE SAID, IF YOU FOUND BL OOD,I MUST HAVE DONE IT.

OK AY. ISN'T THAT EN OUGH OF A CONFESSION, ISN'T THAT DIRECT EVIDENCE OF GU ILT THAT HE COM MITTED THE HOMICIDE ?

I DON'T BELIEVE THAT A SARCASTIC COMMENT WHICH THAT CLEARLY IS G IVEN , THE WA Y IT IS STATED , CONSTITUTES A CONFESSION.

WHO DETERM INES WHETHER THAT IS A SARCASTIC COMMENTOR IT IS A LEGITIMATE CONFESSION? ISN'T THE JURY ENTITLED TO DETERMINE THAT THAT WAS A LEGITIMATE CONF ESSION AND THAT IN ITSELF IS SUBSTANTIAL COMPETENT EVIDENCE OF HIS GUI LT?

THEY DIDN'T MAKE THAT DETERMINATION.

HE WAS THE LAST PERSON SEEN WITH HER , CORRECT ? THERE WAS EVIDENCE THAT HE WAS , Y OUR CLIENT WAS THE LAST PERSON TO BE SEEN WITH THE VICTIM.

THERE WAS EVIDENCE TO THAT E FFECT .

AND HIS SIEMEN WAS FOUND IN HER AND HIS SEMEN WAS FOUND IN HER VAGINAL WASHINGS, WHICH HE SAID THE LAST TIME THEY HAD HAD SEX WAS A COUPLE OF WEEKS BEFORE.

WHICH WAS TRUE AND IT WAS STIPULATED BY THE STATE THAT THAT HAD NO BE ARING ON THIS CASE.

THE SEMEN THAT WAS FOUND HAD NO BEARING?

CORRECT. THAT IS NOT THE SEXUAL BATTERY.

SO THAT WAS NOT, ARE YOU TELLING US THAT THAT WAS NOT HIS SEMEN?

IT WAS HIS SEMEN. THE STATE STIPULATED DURINGTHE COUR SE OF THE TRIAL, THAT THE SEMEN FOUND HAD NOTHING DO WITH THE SEXUAL BATTERY OR THE HO MICIDE OR ANYTHING. THERE WAS NO ALLEGATION THAT THAT, THE SEXUAL CONTACT THAT THEY H AD HAD, HAD ANY BEARING WHAT SOEVER

IT WAS ALLOWED INTO EVIDENCE. WHAT WAS THE REL EVANCE OF IT?

IN MY E YES, IT WAS NOT RELEVANT.

BUT YOU HAVE NOT RAISED THAT AS A SEPARATE ISSUE , THAT IT WAS ERRONEOUS TO INTRODUCE HIS , THE FACT THAT THEY FOUND HIS SEMEN IN HER . IS THAT A SEP ARATE ISSUE?

I DID NOT MAKE THAT A SEPARATE ISSUE.

CAN I CLARIFY THAT? ARE WHAT YOU ARE SAYING IS, THE STATE STIPULATED THAT THEY COUL DN'T PR OVE WHETHER THEY HAD CONS ENTUAL OR NONCONSENTUAL VA GINAL INTERCOURSE THAT DAY .

NO. THEY SAID IT WAS CONSENTUAL INTERCOURSE SOMETIME PRIOR.

BUT UP TO WEEKS BEFORE THE SEMEN WAS FOUND IN THE VAGINAL YOU ARE SAYING THAT THE STATE STIPULATED THAT THE SEMEN FOUND THEIR , T HEY COULD NOT DISTINGUISHWHETHER IT WAS SEMFRIENDTHAT DAY OR THEREABOUTS OR AROUND THE TIME OF THE C RIME , VERSUS A WEEK OR WEEKS EARLIER.

IT WAS NOT PUT I N THAT FASHION IS WHAT I AM SAYI NG.

THAT IS MY POINT IS , I THINK THE EVIDENCE OF THE SEXUAL BATT ERY HERE, WAS THE DAMAGE TO HER RE CTUM .

CORRECT.

THAT IS WHERE THE PROOF OF THE , AS OPPOSED TO SEXUAL , VOLUNTARY SEXUAL INTERCOURSE.

YES, SIR .

CHIEF JUSTICE: WE HAVE , OF COURSE, ALLOTED 30 MINUTES AS WE NORMALLY DO , BUT WE HAVE USED UP A LOT OF YOUR TIME.YOU SAID THAT THERE ARE MANY SUBSTANTIAL ISSUES, AND, OFCOURSE, WE HAVE READ YOUR BRIEF.ARE YOU GOING TO FO CUS, IN YOUR REMAINING TIME , ON ANY PARTICULAR ISSUES?

I THINK PARTICULARLY , OF IMPORT WAS THE USE OF THE, THE SE ARCH WARRANT ON THE VEHICLE , AND THE MITOCHONDRIAL DNA USE. ALSO I BELIEVE THAT THE EXPERTS , BUT I DON'T BELIEVEI AM GOING TO HAVE TIME AND I BELIEVE I WOULD ADDRESSTHAT IN MY BRIEF. A S TO THE ISSUE OF THE SEARCH WARRAN T ON THE VEHICLE , ACCORDING T O FR ANCE V DELAWARE, YOU TAKE OUT THOSE IT EMS WHICH ARE NOT PROPER. THE AFFIDAVIT FOR THEWARRANT ARE INCLUDED IN THE SUPPLEMENTAL RECORD IN VOLUME ON E AT PA GES 12-TO-14. IN THAT AFFIDAVIT , THERE ARE NUMEROUS ERRORS . IT SAYS T HAT THE VE HICLE WAS LOCATED AT THE HOME OF MR . SIMMONS'S PARE NTS . THEY ALLE GED THAT THE CA R WAS IN FACT , AT THE SHERIFFS OFFICE IN THE SALLY P O RT, WHEN THE AFFIDAVIT WAS WRITTEN .

HOW DID THE VEH ICLE GET TO THE SHE EVER I WAS TO THE SHERIF FS OF FICE IN THE FIRST PL ACE?

THE SHERIFFS OFFICE TOWED IT.

AT WHAT POINT?

MR . SIMMONS WAS, I WOULD ALLEGE, T AKEN INTO CUSTODY, WHICH IS ANOTHER ONE OF THEISSUES THAT I RA ISED SO THAT THE ALLEGED CONFESSION WOULD NOT HAVE BEEN IN, ANYWAY, AT THAT POINT, WHILE HE WASGONE, THEY LEFT A D E PUTY WITH THE CAR, AND IT WAS , ATSOME POINT LATER , THAT EVENING, TOWED TO THE SHERIFFS OFFI CE.

AFTER THE SEARCH WARRANT WAS ISSUED ?

THAT WAS MY CONT ENTION , YES.

YOU ARE SAYING THAT THERE WERE SUBS TANTIAL MISSTATEMENTS IN THE AFFIDAVIT MISSTATEMENTS ?

YES .

WHAT ARE TH OSE? WHAT YOU END UP WITH I S A F RANK VE RSUS DELAWARE, A SUBSCRIPTION, THE FACT AFTER DEATH , THE CAR , THE SUSPICIOUS US DESCRIPTION,WHICH IS THE WAY THEY PUT IT IN THERE THE DEDESCRIPTION MATCHED THAT OF THE CAR AND THE CH EVY CORSICA TYPE OF CAR. THAT WAS THE FIRST TIME THAT THIS CORSICA CAME IN. IT WAS A POLICE-MADESTATEMENT, AND THEN A SHEET WITH N UMEROUS THIN GS

WHY WOULD YOU TAKE OU T THE DESCRIPTION OF THE CAR? IT IS MY UNDERSTANDING THAT ONE OR OF TWO THE WITNES SES INDICATED THAT IT WAS THAT TYPE CAR.

THEY SAID IT WAS A CORSICA. THEY DIDN'T SAY THAT TY PE OF CAR. THEY SAID IT WAS A CORSICA AND ONE IN FACT , SPELLED IT.

S O CORSICA AS TO TYPE OF CAR

ALL ON THEIR O WN SPECIFICALLY DESCRI BED IT AS A CORSICA WITH NO IDENTIFYING FEAT URES AND ABSOLUTELY AS A CORSICA , ONE EVEN SPELLED OUT CORSICA FOR THE OFFICER ON THE TAPE. AND THEY , YOU , THEN , END UP WITH A DESC RIPTION OF THE INCIDENT, A DESCRIPTION OF MR . SIMM ONS'S CAR BY LICENSE PLATE AND VIN NUMBER , AND THE IDENTIFICATION OF THE V ICTIM , W HICH IS NOT PROBABLE CA USE FOR A SEARCH WARRANT . WITHOUT PROBABLE CAUSE YOU COULD BRING IN SOMETHINGSUCH AS THE CAROL DOCTRINE THAT WOULD APP LY, WHICH IS THE STATE BROUGHT THAT UP BECAUSE THEY WEREN'T TOOSURE OF THE PROB ABLE CAUSEFOR THE SEARCH WARR ANT, I BELIEVE. THE CAROL DOCTRINE , I DON'T SEE HOW THAT IS APPLICABLE AT ALL. IF YOU HAVE QUESTIONS ON I T , I WOULD BE H A PPY TO ADDRESSTHEM. I DON'T SEE THAT THAT IS IN ANY WAY APPLICABLE. THERE WAS NO STOP. YOU HAVE TO HAVE PROBABLE CAUSE FOR THAT AS WELL.THERE WAS NO STOP.I DON'T SEE HOW CAROL APPLIES.

WHAT WAS AC TUALLY SEIZED FROM THE VEHI CLE? IN OTHER WOR DS, IF WE WERE TO AGREE WITH YOU THAT THESEARCH OF THE VEHICLE WAS IMPROPER, WHAT , WAS , WHAT WAFSD OBTAINED FROM THEVEHICLE?

WHAT EVIDENCE WAS OBTAINED FROM THE VEHICLE?

THERE WERE SOME SLIGHT DROPPINGS , SLIGHT B LOOD SPECS , ONE MIXED IN S LIGHT BL OOD S PECKS , AND ONE MIXED IN WITH DOG SAL I H AVE.

AND THAT WAS SALIVA .

AND THAT WAS FOUND IN THE SEAT CUSHION?

YES AND THE DNA , WHICH WAS THE MIGHTCHONDRIAL ISSUE.

AND THAT ISSUE WAS WHETHER THAT BLOOD DID NOT MATCH UP WITH THE VICTIM 'S. IT WAS JUST A QUESTION OF WHETHER IT WAS BLOO D OR NOT , I S THAT, WAS THAT THE ISSUE?

THERE WAS NO IN DICATION. THE REASON THAT WE DID NOT DO A FRYE HEARING IS THERE WASN'T A QUESTION ABOUT THE SCIENTIFIC VALIDI TY OF MIGHT CONNED REAL DNA OF MITOCHONDRIA LDN A WAS THE ISSUE HERE. BECAUSE MITOCHONDRIAL DNA WAS SUFFICIENT, IT WOULD NOT HAVE BEEN IN HIS VEHICLE. ANY SKIN CELLS SHE HAD SHED. PERSPIRATION, HE AND HIS F ATHER HAD BEEN WOR KING AT LANDSCAPING WORK , P U LLING TREE LIMB S AND THINGS. ANY PERSPI RATION WOULD HAVE GOTTEN HER MITOCHONDRIAL DNAAS WELL.THERE IS NO INDICATION THAT ANY OF IT CAME FROM ANY OF HER BLOOD . IN FACT , THE DEFENSE EXPERT , DR . BLAKE , FOUND TWO MALE DNA SAMP LES , PAR TIAL DNA SAMPLES FROM THE SAME AREA . AND IT IS JUST, HE , HE STATED YOU COUL D NOT TELL IF IT WAS SOMETH ING IN THE CUSHION, IN THE MA TERIAL , IN THE FOAM , OR IF IT WAS FROM WHAT APPEARED TO BE JUST A VERY OLD BLOODSTAIN .

WOULDN'T THAT GO TO THE WEIGHT, THOUGH, OF THAT TESTIMONY, AS OPPOSED TO ITS ADMISSIBILITY ? IN OTHER WORDS AGAIN I F THAT IS SOMETHING AS WE WERE SAYING EARL IER , FOR THE JURY TO DECIDE WHETHER THEY BELIEVED THE DEFENSE EX PERT OR THEY BELIEVED THE STATE'S EXPERT.

WELL , THE STATE'S EXPERT WAS NOT QUALIFIED, HOWEVER , UNDER MAGLETTI, BECAUSE HE WAS UNABLE TO TESTIFY AS TOANY OF STATISTICS. HE JUST DIDN'T HAVE BOTH QUALIFICATIONS. AND SOME HOW THE JU DGE DIDN'T FEEL THAT THAT WAS THAT IMPORTANT, I GUESS . HE GLOSSED OVER THAT. THEY HAD ANOTHER EXPE RT TESTIFY O N THE P HONE DURING THE COURSE OF TRIAL , ON STATISTICS ON TEST TESSING, WHICH THE STATE, THEN , DID NOT O N TESTING, WHICH THE STATE, THEN , DID NOT PROVIDEDURING THE TRIAL, ITSELF. MR. SLONE WAS NOT QUALIFIED TO TESTIFY .

AND WAS THAT RA ISED BELOWAS AN ISSUE ?

YES, IT WAS.

I TH OUGHT IT SAID IT IS NOT WHETHER OR NOT THE WITNESS CA N DO IT . IT IS A QU ESTION OF WHETHER , YOU ARE TALKING ABOUT THE QUALIFICATIONS OF THE WITNESS?

YES. HE STATED HE WAS NOT QUALIFIED TO DO THE STATISTICAL ANALYSIS.

SIMILARLY , THE EXPERT , ALLEGED EXPERT ON THE ENTOMOLOGIST WAS SIMILARLY NOT A FORENSIC ENT M OLING C YST ON FORENSIC ENTOMOLOGIST. THE O THER, I THINK, AS FAR AS THE IDENTIFICATION GOES , THE IDENTI FICATIONS WERE VERY HI GHLY SUGGESTION I HAVE, AND I THINK THAT IT IS EXTREMELY PROBATIVE TO LOOK AT THE DIFFERENCES IN WHAT OCCURRED, WHICH I BELIEVE IS REQUIRED UNDER N EAL V DI GER, TO LOOK AT WHETHER OR NOT THERE WAS A MA JOR CHANGE. MR . MO UNT , FOR INSTANCE , NOTED THE SIMILARITIES A YEAR LATER , THAT HE SAW IN THE CAR WHERE THE SP OK E WHEELS WHICH HAD BEEN PLACED ON THE CAR BY THE SHERIFFS OFFICE AT THE TIME THEY TOOK THE TIRES OFF TO SEND THEM TO F DL E , THEY PUT THE SPO KE TIRES ON THE CAR. HE REMEMB ERED THOSE FROM THE NIGHT HE SAW IT ON THE , ON THERE.HE SAID THAT , IT WAS VERY DIRTY. THE DI RT THAT WAS ON THE CARTHAT HE SAW , WAS FROM FINGERPRINT DUST . AND THE TR IM WAS DIFFERENT , WHICH I DON'T KNOW HOW THAT HAPPENED, AND THE DENTS WERE DIFFERENT . BUT THEY JUST SAID THAT IT WAS THE SAME CAR. THEY TOOK THAT AS THE SAME CAR.

THE TRIAL JUDGE A G REED THAT THERE WAS A SUGGESTIVE METHOD OF IDENTIFICATION , CORRECT? THEN THAT DOESN'T EN D THE INQUIRY UN DER NEAL V DIGERS. THE NE XT PART HAS TO BE THATTHEY HAVE A SUFFICIENT OPPORTUNITY TO OBSERVE THESE , THIS, BOTH AS TO NOT ON LYTHE CAR BUT , I THINK , YOU ARE AL SO CHALLENGING THE IDENTIFICATION BY , OF THE VICTIM.

CORRECT. BECAUSE SIMILARLY AS THEY WERE SH OWN ONE CAR IN THE SHERIFFS OFFICE SALLY PORT , THEY WERE , ALSO , SHOWN ONE OLD HEAD SHOT O F THE , SHERRI RENFRO WAS SHOWN ONE HEAD SHOT OF THE VICTIM , OF ERIC TRESSLER, NOT SHOWN IN AR RAY , NOT ASKE D TO DESCRIBE , NOT ASKED TO GIVE SOME KIND OF A COMPOSITE DRA WING , NOTHINGLIKE THAT , AND SHE HAD IDENTIFIED THE WO MAN AS BEING A ELDERLY WOMAN WITH SHORT BROWN HAIR. AND AS I SA ID , BOTH IDENTIFIED THE WOMAN AS WEARING WHI TE. AND MOST SPECIFICALLY AWHITE T- SHIRT, AND SHE WAS F OUND IN BLACK PANTS AND A GRAY SWEATSHIRT.

AND DID THE DEFENSE COU NSEL RAISE ALL THOSE QUESTIONS IN THECROSS-EXAMINATION OF THEWITNESSES IN THE PRESENCE OF THE JURY ?

SOME OF IT I WAS NOT PERMITTED TO GE T INTO AS TOO MUCH. I COULDN'T GET INTO THE WARRANT ISSUES AT ALL. THE JUDGE DID NOT PERMIT. THAT SOME OF THE IDENTIFICATIONS , YES , WHEN I WENT TO RE CALL MS. RENFRO , SHE WAS NOT AVAILABLE. SHE WOULD NOT COME BACK , AND THE JUDGE DID NOT DO ANYTHING ABOUT THAT .

BUT YOU WERE ABLE TO CROSS-EXAMINATION HER AFTER THE STATE PRESENTED HER TESTIMONY.

YES , B UT I WAS SAVING SOME OF MINE FOR WHEN I BROUGHT HER BACK ON MY CASE. ON THE DE FENSE CASE. AND SHE DID NOT COME BACK .

DID YOU HAVE HER UNDERSUBPOENA?

YES .

ONE OF THE ARGUMENT THATYOU HAVE MADE IN THIS CASE SEEMS TO BE THE SUPPRESSIONOF THE ACTUAL ARREST OF THE DEFENDANT OR THE STATEMENTS THAT WERE MA DE AS A RESU LTOF THE DEFENDANT'S ARREST , AND ONE OF THE ISSUES THAT I HAVE HERE IS, YOU ARG UE, AT L EAST IN YOUR M O TION, THAT THE SURROUNDING CIRCUMSTANCES DEMONSTRATE THAT HIS GOING TO THE POLICE STATION WAS NOT VOLUNTARY, AND I NEED YOU TO EXPOUND ON THAT . WHAT WAS THE PROB LEM? WHY WAS IT NOT A VOLUNTARY ACCOMPANIMENT OF THE OFFICERS TO THE POLICE STATION?

FOR A WEEK P RIOR TO THEIR FINDING MR. SIM MONS, THEY APPARENTLY THOUGHT THAT H E HAD RUN , B ECAUSE THEY COULDN'T FIND HIS VEHICLE. THEY FOUND OUT HIS VEHICLEWAS IN THE SHO P. WHEN THEY FOUND THE VEHICLE , THEY HAD VI RTUALLY THE ENTIRE SHERIFFS OFFICE PLUS SOME SURROUNDING JURISDICTIONS OUT. THEY HAD BEEN DOING F LIERS TO TRY TO FIND MR . SIMMONS. HE DIDN'T K NOW THAT , BE CAUSE HE WASN'T GOING THOSE R OUTES, BUT IN ANY EV ENT, THEY ALL CAME TO , DESCENDED UPON MR . SIMMONS'S PARENTS' HOME , B Y WHAT THE L EAD DETECTIVE DESCRIBED AS THE THUNDERING HEARD ARRIVED. THERE WERE HELICOPTERS OVERHEAD, MA RKED UN ITS , UNMARKED UNITS . THERE WERE PROBABLY 20 , DEPENDENT UPON WHO YOU T ALKED WITH BUT AB OUT 20 OFFICERS OUT THERE SURROUNDING HIM , ALL AROUND THE AREA WHERE HE WAS.

WAS MR . SIMMONS ACTUALLY AWARE OF THE PRES ENCE OF THESE OFFICE RS AND THIS HELICOPTER THAT THEY WERE TALKING ABOUT? O H, YES . HE AND HIS FATHER WERE COMING IN ON ATV'S. THEY WERE BOTH O N 4 WHE ELERS . THEY HAD BEEN OUT IN THE WOODS, AND THEY WERE COMING IN AND SAW THEM AND K EP T COMING AND THEY HAD NOTHINGTO HI DE AND THEY KEPT COMING IN , AND THE OFFICERS , AND HE WAS , ALSO , HANDCUFFED , THATWAS ONE OF THE REASONS WHY IT TOOK FOUR DAYS FOR THOSEHEARINGS, BECAUSE AFTER THE FIRST DAY WHEN THEY SAID HE WASN'T HANDCUFFED, THE N THEY CAME AND THE ASSISTANT STATE ATTORNEY SAID, WELL , NO , THEY REALIZED HE WAS HANDCUFFED, SO THAT WE HADTO COME BACK AGAIN , AND WHO HANDCUFFED HIM AND WHEN , CHANGED , IN BETWEEN HEARINGS . THERE WAS NO QUESTION THATHE WAS HANDCUFFED. HE WAS TRANSPORTED IN THE B ACK OF A L O CKED UNIT.

LET ME ASK YOU, WHEN DID THAT OCCUR RELATIVE TO RENFRO'S IDENTIFICATION OF THE VICTIM AND OF THE VEHICLE ?

THEY, THE VEHICLE , SHE DID NOT IDENTIFY , INITIALLY THE VEHICLE IDENTIFI CATION OF THE CORES I CAN A , AND OF THE CORSICA AND THE WOMAN AS THE SHORT BROWN HAIR WEARING WHITE , WAS PRIOR TO THEM ARRESTING MR . SIMMONS . AFTERWARDS, WHEN THEY HAD TAKEN HIS CAR AND TOOK HER DOWN AND SHOWED HER HIS CAR.

AND AT THE TIME THEY CAME TO SEE HIM , THEY WERE AFTERMR. SIMMONS BEC AUSE HE WAS THE LAST PERSON THAT WAS

BECA USE HE WAS ALLEGEDLY HER BOYFRIEND.

AND THE LAST PERS ON, SO THEY DIDN'T HAVE, YE T, IDENTIFICATION OF HIM.

YES. BUT THEY WERE, AND THEN

SO YOU SAY THAT HE WASN 'T VOLUNTARILY, HE DIDN'T VOLUNTARILY GO, BUT AT WHAT P OINT WERE THE MI RANDA WARNINGS ISSUED?

WHEN HE GOT TO THE STATION.

SO WAS THERE ANYTHING HE SAID THAT THEY U SED AGAINST H IM, FROM THE TIME THAT HE WAS APPROACHED , U N TIL HIS MIRANDA WARNINGS WEREISHWRUD?

WERE ISSUED ?

BY THE CONCESSION OF THE OFFICERS, THEY DIDN'T HAVE PROBABLE CAUSE UNTIL THE T IME THAT H E ALLE GEDLY CONFESSED.

BUT THE MIRANDA WARN INGS WERE ISSUED BEFORE HE CONFESSED .

YES.

SO I GUESS WHAT I AM ASKING IS , LET'S ASSUME THAT HE WASN'T , HE DIDN'T VOLUNTARILY ACCOMPANY THEM , WHEN, BY ISSUE , BY G IVING HIM AT THAT POINT THE MIRANDA WARNINGS , DO ESN'T THAT, THEN , DOESN'T THAT OBVIATE ANY ISSUE ABOUT HOW VOLUNTARY HIS STATEMENTWOULD BE, BECAUSE AT THAT POINT THEY GAVE HIM THE NECESSARY WARNINGS ABOUT WHAT HE SAID COULD BE USED AGAINST HIM.

THEY ALSO TOLD HIM HE COULD LEAVE AT ANY TIME.

YOU ARE IN YOUR REBUTTAL, IF YOU WA NT TO SAVE SOME TIME.

THANK YOU.

CHIEF JUSTICE: MR. A KE.

MAY IT PLEASE THE COURT. MY NAME IS STEVE AKE. I AM REPRESENTING THE STATEOF FLORIDA IN THIS CASE. I GUESS I WOULD LI KE TO BEGIN , I DIDN'T THINK WE WOULD ACTUALLY HIT EVERY I SSUE BUT I THINK WE SOMEHOW MANAGED TO DISCUSS ALL OF THEM , AL BEIT BRIEFLY. I GU ESS I WILL BE GIN WITH THE SUFFICIENCY OF THE EVIDENCE CLAIM. BASICALLY, I BELIEVE COUNSEL STIPULATED THAT THERE WAS A MURDER OF THIS VICTIM AND THE ONLY QUESTION WAS IDENTITY OF THE PERSON RESPONSIBLE. THE STATE WOULD SU BMIT THAT WE PRESENTED BOTH DI RECT AND CIRCUMSTANTIAL EVIDENCE INTHIS CASE AND UNDER THAT , BEING THAT WE HAVE PRESENTED DIRECT EVIDENCE, THAT WE ARE ENTITLED TO A FAVORABLESTANDARD OF REVIEW BY THIS COURT, BASED ON THAT , AND AS JUSTICE CAN CAN'T POINTEDOUT , WHAT THE A S JUSTICE CANTERO POINTED OUT , WHAT THE APP ELLATE COURT SAID WAS THEY FOUND BLOOD AND HE SAID , SINCE YOU FOUND BLOOD, IMUST HAVE DO NE IT , AND THE COU NSEL SAID IT WAS SARCASTIC BUT IT WAS STATED THAT THAT WAS NOT THE CASE, THAT THE DEFENDANT WAS NEVER SARCASTIC OR FLIPPANT IN HIS DISCUSSIONS WITH THE DETECTIVES AND THEY VIEWED IT AS A LEGITIMATE CONFESSION, AND OBVIOUSLY THE JURY HAD THE RIGHT TO HEAR THAT EVIDENCE AND RELY UPON THAT AS DIRECT EVIDENCE. WE ALSO HAVE THE EVIDENCE OF THE EYEWITNE SSES THAT OBSERVED THE KIDNAPING AT THE INTERSECTION OF 4 4 AND COUNTY RO AD 437.

GIVE ME YOUR BEST SHOT AT WHAT THOSE EYEWITNESSES TESTIFIED TO, THAT WOULDGIVE THE JURY A BASIS TO CONCLUDE THAT THE PERSON , THAT THE DEFENDANT WAS THE PERSON IN THE TR UCK .

WELL , YOUR HO NOR , NE ITHER SHERRI RE NFRO OR ANDREW MOUNTS IDENTIFIED THE DEFENDANT AS DRIVING THEVEHICLE. WHAT THEY DID IDENTIFY AND VERY SPECIFICALLY, I WOULD , OUR VIEW S ON THAT ARE VERY DIFFERENT AS TO HOW SPECIFIC THEY WERE, BUT THEY IDENTIFIED THE CAR AND THE VICTIM. THE PROB LEM COMES WITH THE DEFENDANT'S STATEMENT TO LAW ENFORCEMENT OFFICERS THAT HEWAS NOWHERE IN THE VICINITY AND HIS CAR WAS NOT THERE , SO THAT IS A CIRCUMSTANTIAL REACH, TO FIND THAT THE DEFENDANT WAS ACTUALLY THEDRIVER, BECAUSE

I WANT TO UNDERSTAND WHAT THE STATE'S BEST PO SITION IS ON WHAT THOSE EYEWITNESSES TESTIFIED .

THE BEST POSITION, YOUR HONOR, IS CL EAR , THAT B OTH SHERRI RENFRO AND ANDREW M OUNTS IDENTIFIED THE CAR WITH INCRED IBLE DETAIL AS MATCHING WHAT THE DEFENDANT'S CAR ACTU ALLY L OOKED LIK E AND SHERRI RENFRO ACTUALLY WENT SO FAR AS TO IDENTIFY THE VICTIM . SHE GOT A GO OD LOOK AT HIM. THE VICTIM, HE PULLS UP TO WHAT IS A RED LIGHT OR TURNING RED LIGHT. HE IS SLOWING DO WN. THE CAR D OOR , PASSENGER DOOR OPENS UP AND THE VICTIM IS TRYING TO GE T OUT , Y ELLING FOR HELP, SAYING PLEASE HELP ME. P LEASE HELP ME. SHERRI RENFRO SAYS SHE APPROACHES AND GETS ABOUT 20 FEET AWAY . SHE IS FO CUSED ON THE VICTIM'S FA CE. SHE ALSO NOTICE S THE CAR'S INTERIOR IS BLUE AND SHE NOTICES AND TE LLS THE OFFICER THAT IT IS A WHITECAR THAT RESEMBLES A CORSICA. SHE NEVER SAID IT WAS A CTUALLY A CORSICA. NEITHER WIT NESS SAID THAT . ANDREW MOUNTS SAID IT WASEITHER A CORSIC A OR A TAURUS BUT A CORSICA-LIKE CAR , WHICH IN DEED WITH WAS , A FOUR-DOOR LIKE A TAURUS . I WOULD LIKE THE JUSTICES TO LOOK AT PAGE 15 AND 16, A P HOTO OF A 1991 CORSICA AND ON PAGE 16 A P HOTO OF THE DEFENDANT'S TA URUS AND THEY LOOK SIMILAR, DOWN TO THE TRIM AND EVERYTHING, BUTGETTING BACK TO YOUR QUESTION, JUSTICE WE LLS, THE ANDREW MOUNTS AND SHERRI RENFRO IDENTIFIED THIS CAR AND SHERRI RENFRO IDENTIFIED THIS VICTIM SCREAMING FORHELP. THEY WERE VERY DETAILED IN THAT IDENTIFICATION. THAT WAS INFORMATION THAT L AW ENFORCEMENT HAD. THEY, ALSO , HAD J OSE RODRIGUEZ, WHO HAD JUST SEEN THE VICTIM AND THE DEFENDANT AT THE LAUNDROMAT ONLY AMILE OR T WO AW AY , YOU KNOW , ABOUT A HALF-HOUR BEFORE THIS INCIDE NT AT THE INTERSECTION TOOK PLACE. AND, OF COURSE , WE HAVE THE DEFENDANT DENY ING THAT HE WAS ANYWHERE IN THAT VICINITY AT THAT TIME.

YOU SAY EXTREME DETAIL.

YES.

WHAT DETAIL ARE YOUREFERRING TO?

CONTRARY TO WHAT OPPOSING COUNSEL IS HE , I WOULD ARGUE THAT ANDREW - - COUN SEL SAID , I WOULD ARGUE THAT ANDREW MOUNTS'S IDENTIFICATION OF THE VEHICLE IS INCREDIBLY DETAILED AND CORRECT. HE SAID IT WAS A WHITE CARWITH A 3- INCH BL ACK DECO TRIM RUNNING DOWN THE SIDE WITH SI LVER IN IT AND I F YOU LOOK AT PAGE 17 IN THE SUPPLEMENTAL VOLUME , YOU WILL SEE THAT AND YOU WILL SEE HE SAID IT HAD DENTS ON THE PASSENGER DOOR WHICH IT DID AND HE SAID SPOKES ONTHE WHEEL, AND THERE IS SOME CONFUSION IN THE RECORD ON THAT, BUT THE CAR ON PAGE 17 SHOWS THAT IT HAD SOMEWHAT S POKE WHEE LS. THOSE WERE THE DEFENDAN T'S TIRES. SUBSEQUENTLY LAW ENFORCEMENT TOOK THOSE TI RES OFF AND PUT ON DI FFERENT ONES BECAUSETHEY WERE TR YING TO MATCH UP THE TIRE TRACKS TO THE SCENE. AND THEN , ANDREW MOTTS WENT TO AN A UTO PA RTS ST ORE AND LOOKED AT RIMS AND TRYING TO FIND OUT WHAT KIND OF RIMS THEY WERE.HE SAID THERE ARE SOME THAT ARE REALLY SPOKE RIM S AND THAT WASN'T IT. HE WAS PRETTY DETAIL ED ON THE RIMS , BUT HE ALSO HAD THE DENTS , THE TRIM , THE WHITE FOUR-DOOR, THE F LAG HALVES I HAN GING ON - - THE F LAG THAT WAS HANGING ON THE BACK OF THE PASSENGER WI NDOW , A PATR IOTIC AMERICAN FL AGS THAT YOU STICK ON YOUR WINDOW. THAT WAS ON THE CAR. HE IDENTIFIED THAT.

DID MOTTS , HE IDENTIFIED THOSE ASPE CTS OF THE VEHICLE BEFORE HE WAS SHOWN A VEHICLE O F THESE CARS?

YES. YES.

SO, NOW

HE WASN'T SHOWN THE VI DEO UNTIL A YEAR LATER , AND HE HAD GIVEN THAT DESCRIPTIONPRIOR TO WHAT HE GAVE TO DETECTIVE PERDUE.

WHAT ABOUT , T HE SPOKE RIMS WERE OR WERE NOTCHANGED , WHEN HE SAID AFTER HE SAW IT A YEAR LATER , HE SAID THAT IS EXACTLY VICKI SAW?

NO. HE DESCRI BED EXACTLY THE VEHICLE I SAW.

HE DESCRIBED IT TO THE DETECTIVE AS HAVING SPOKE RIMS, AND THE CAR, YOU WOULD HAVE TO SEE A PICTURE TO REALLY GET A TRUE SE NSE OF THE RIMS. BASICALLY IT WAS A WHEEL CAP AND AT THE END LITTLE SPOKES. THEY SUBSEQUENTLY CHANGED THE TIRES ON THE CAR AND THE RIMS, AND WHEN HE VI EWED THE VIDEO IT HAD THE DIF FERENT ONES ON THERE AND HE SAID THOSE AREN'T THE SPOKE RIMS THAT HE WAS TALKING ABOUT.

SO HE ACTUALLY DISTINGUISHED?

HE SAID THOSE AREN 'T THE SPOKE RIMS FORM NO. HE SAID THE CAR DIDN'T HAVE , HE HAD GO NE TO A Y ON THE P ARTS STORE AND SEEN WHAT SPOKE RIMS LOOKED LIKE , I G UESS TRUE SPOKE RIMS, AND I GUESS IT WAS CONFUSING AND CONFUSING TO READ IN THE RECORD AS TO WHAT HE WAS TRYING TO S AY . HE WAS AN 18 YEAR-OLD KID AND I THINK HE WAS SOMEWHAT CONFUSED AS TO WHAT ALL TOOK P LACE, BUT THE RIMS WERE REALLY PART AND PARCE L OF HIS OVERALL DESCRIPTION. I THINK THE WHITE FOUR-DOOR TAURUS /CORSICA WITH THE BLACK TRIM WITH THE SILVER IN THE MIDDLE OF IT WAS DEAD ON AND THE FLAG AND SO FORTH.

THE PROB LEM, AND THIS MAY BE , WE ARE TAL KING ABOUT THE SUFFICIENCY OF EVIDENCE BUT, THEN, WITH RE SPECT TO THESE IDENTIFICATIONS , LET ME GO BACK. THE ONLY PERSON THAT IDENTIFIED THE VICTIM AS BEING THE ONE IN THIS VEHICLE THAT WE ARE NOW ATTRIBUTING TO THE DEFENDANT , WAS RENFRO ?

SHERRI RENFRO. CORRECT.

NOW , WHAT IS IT THAT SHE SAID SHE SA W, AN OLDER WOMAN WITH SHORT BROWN HAIR?

SHE SAID

DID SHE SAY THAT BEF ORE, ON DECEMBER 4?

HER ORIGINAL STATEMENTWAS SHE DESCRIBED HER AS BEING IN MID-50S . SHE WAS 48 YEARS OL D. IT WASN 'T, THAT I S NOT AHUGE DISCREPANC Y, I SUBMIT, AND SHE SAID SHE HAD A WHITE LONG-SLEEVED T-SHIRT ON.

WHAT ABOUT HER HAI R?

SHE SAID SHE HAD SHORTBROWN HAIR.

WHAT TYPE OF HAIR DID THE DEFENDANT, DID THE

I WOULD SAY PROB ABLY BROWN/BLACK.I AM NOT GO OD AT THAT, EITHER, BUT I WOULD SAY THAT IT IS BLACK BUT THE WITNESS TEST NEED THAT SHE OFTENWORRY IT UP SO WE DON'T KNOW WHAT SHE WAS DOING THE NIGHT IN QUESTION , BUT I WANT TO POINT OUT AS TO THE WHITE T-SHIRT THIN G THAT SHE IS MAKING A BIG DEAL OUT OF G RAY SWEATSHIRT , I WOULD ENCOURAGE THE COUR T TO LOOK AT VO LUME ONE THE SUPPLEMENT ALRECORD. IT IS A GRAY SHIRT BUT IT IS SO F ADED THAT IT LOOKSWHITE.ANOTHER PROBLEM THAT WE ARE HAVING ABOUT THIS UNNECESSARILY SUGGESTIVE SITUA TION.

RIGHT.

BOTH AS TO RENFRO AND MOTTS, THAT YOU HAVE GOT ASITUATION WHERE SHE SAID , SHE WROTE A STATEMENT. SHE SAID IT W AS AN OLDERWOMAN WITH SHORT BROWN HAIR AND A WHITE T-SHIRT.

RIGHT.

INSTEAD OF DOING , WHICH THEY CERTAINLY WOULD HAVEBEEN THE BE TTER THING, I AM SURE YOU WOULD AGREE, TO SHOW, HAVE A LI NEUP , SHOW UP OF DIFF ERENT , THEY GAVE HER ONE PICT URE AND THEN SHE SAID THAT IS THE PERSON . NOW , WHY , THAT IS UNNECESSARILY SUGGESTIVE . CORRECT?

THE TRIAL JUDGE , IN HIS RULING, FOUND THAT THE USE OF ONE PHOTOGRAPH WAS UNNECESSARILY SUGG ESTIVE , AND HE RELIED ON THIS COURT'S OP INION IN DENNIS, WHICH I WOULD SUBMIT WOULD BE INC ORRECT INTERPRETATION, THAT YOU DO NOT NEED TO DO A PHOTO LINEUP OF VICTIMS OR OF CARS OR WHAT HAVE YOU , THAT THE RATIONALE OF NEAL VERSUS BIGERS AND ALL OF THE U.S. SUPREME COURT CASE ON THIS, HAD TO GO WITH IDENTIFICATION OF THE HUMANFACE OF THE DEFENDANT NOT OF AN ANIM ATE OBJECT LIKE A VEHICLE OR IN THIS OF AN INANIMATE OB JECT OF THE VEHICLE OR IN THIS CASE THE VICTIM. I DON'T THINK LAW ENFORCEMENT IS REQU IRED TO GIVE A SUBSTANTIAL LINEUP OF A VICTIM AND SAY CAN YOU PICK OUT WHO THE VICTIM WAS IN THIS CASE?

AREN'T THERE REASON, AND THIS COMES, OF COURSE , INTO THE CASE OF WHETHER THE EXPERT SHOULD HAVE BEEN ALLOWED TO TEST IFY , THAT WHEN SOMEBODY SEES ONE P ERSON , THEY ARE MORE LIKELY TO SAYING THAT THE PERSON AS OPPOSED TO SEEING SIX DIFFERENT PEOP LE AND THE RELIABILITY OF THAT IDENTIFICATION, WHEN YOU ARE DEALING WITH SU CH A SERIOUS MATTER.

CORRECT. IT IS A L I TTLE DIFFERENT WITH PEOPLE V E RSUS INANIMATE OBYET OBJ ECTS LIKE VEHICLES. I WOULD SUBM IT THAT IS DIFFERENT FROM FACES ANDTHAT IS WHAT THE U.S. SUPREME COURT CASE LAW WAS DEALING WITH, FROM THE VANTAGE POINT OF IDENTIFYING THE DEFENDANT AND NOT THE VIC TIM , BUT BE THAT AS IT MAY THE TRIAL JUDGE FOUND THAT IT WAS UNDULY SUGGESTIVE, BUT TAKING THE SECOND PRONG OF IT , H UH TO LOOK AT THE TOTALITY OF THE CIRCUMSTANCES TO FIND OUT I F IT WAS SHOWING, YOU KNOW,THAT THERE WAS AN IRREPARABLE MISIDENTIFICATION OR WHATHAVE YOU , AND THAT WAS NOTPRESENT IN THIS CASE BECAUSE THE WITNESS GAVE SUCH A DETAILED DESCRI PTION THAT , AND SHE WAS SO CONFIDENT.

I GUESS THE DETAILED , THAT IS WHERE THE DETAIL BECOMES IMPO RTANT , BECAUSEIF SHE DOESN'T HAVE SHORT BROWN HAIR.

SHE, THE HAIR SHE MAY HAVE MI SSED AT TWELVE O'CLOCK AT NIGHT.

BUT THE DETAIL , THEN?

THE DETAIL IS HER FACIAL FEATURES. SHE RRI RENFRO SAID THAT SHE WOULD NEVER FORGET THAT LA DY 'S FACE FOR THE REST OF HER LIFE. SHE ACTUALLY CRIED WHEN SHE IDENTIFIED HER BECAUSE SHE SAID THAT SHE RECOGNIZED HER FACE AND WOULD NEVER FORG ET THE FEAR THAT WAS IN THAT WOMAN'S FAC E.SHE WAS VERY FOCUSED O N THE WOMAN'S FACE AND I THINK THEFACT THAT SHE SAID SHE WAS IN HER MID-50S WHE N SHE WAS ACTUALLY 48 , WE HAVE LAW ENFORCEMENT SAID THAT SHE APPEARED OLD NER HER DRIVERS LICENSE PH OTO ANYWAY , SO, AND I DON'T THINK THE T-SHIRT THING WAS RIGHT ANDYOU HAVE A FEW MILES AWAY SHE WAS TAKEN, AND YOU ARE AT THE JU NCTION OF 4 4 AND 437 AT A VERY UNPOPULATED A REA , R URAL AREA LATE AT N IGHT AND SOMEBODY MISSED THE DESCRIPTION OF A VICTIM TRYING TO JUMP OUT AFTER MOVING CAR , PRE TTY DAMAGING TO THE DEFENDANT. L AW ENFORCEMENT KNEW THAT THIS DEFENDANT HAD A RELATIONSHIP WITH THE VICTIM, THAT THEY WERE , QUOTE/UNQUOTE BOYFRIEND GIRLFRIEND. THEY, ALSO , A S GOES TO THE SEARCH WARRANT AND THE PRETRIAL HE ARING , THE TESTIMONY CA ME OUT THAT THEYWERE AWARE THAT HE HAD THREATENED TO B E AT HER UP ON THURSDAY OR FRIDAY BE FORE THIS S A TURDAY EV ENING , AND THEY WERE AWARE THAT HE HAD BEEN RECENT LY REL EASED FROM JAIL FOR AN OTHER DOMESTIC VIOLENCE, SO ALL OF THAT WENT INTO THE KNOWLEDGE THAT THEY HAD WHEN THEY WENT OUTTO THE DEFENDANT 'S PARENTS' RESIDENCE, TO QUESTION HIM ABOUT THIS , AND I GU ESS I AM KIND OF MORPHING INTO THE SUPPRESSION IS SUE AS TO THE SEIZURE OF THE VEHICLE AND HIS STATEMENT THAT SHE MOVED TO SUPPR ESS THE DEFENDANT'S STATEMENTS, BASED ON THE ALLEGED COERCION BY THE LAW ENFORCEMENT THAT WAS AT THE SCENE, BUT THE TRIAL JUDGEFOUND THAT LAW ENFORCEMENT HAD PROBABLE CAUSE TO SE IZE BOTH OR TO AR REST THE APPELLANT AND TO SEIZE HIS VEHICLE WHEN THEY ARRIVED THE RE AT THE PARE NTS' LOCATION. LAW ENFORCEMENT OFFI CERS TESTIFIED THAT THEY HADN'T GOTTEN TOGETHER AND COMBINED ALL OF THEIR INFORMATION , PRIOR TO THAT . AND SO THEY

THEY OBVIOUSLY WERE FOCUSING ON HIM. I MEAN, YOU DON'T HAVE POLICE HELICOPTERS AND AWHOLE, HOW M ANY POLICE CAME A FTER THE , HOW MA NY CAME

THERE WERE DIFFER ENT.

HO W MANY CAME THERE?

THE DET ECTIVE TESTIFIED THAT THERE WERE APPROXIMATELY 15 OFFICERS, AND I BELIEVE THE APPELLANT C ALLED WITNESSES THAT SAID THERE WERE PROBABLY UP TO 30.

ANGE L I DON'TERS. S O THEY ARE OBVIOUSLY NOTJUST THERE ON A FACT FINDINGMISSION.

NO. NO. THEY WERE OUT LOOKING FOR THE APPEL LANT AT V ARIOUS LOCATIONS , AND THEY HAD SOME OFFICERS GOING TO HIS UNCLE'S HO USE AND SOME GOINGHERE AND THEN THEY COM BINED , ONCE THEY FOUND OUT HE WASTHERE.OF COUR SE THE APPELLANT N EVER TESTI FIED, SO WE DON'T KNOW HOW THE HELICOPTER , WHERE IT WAS AT AND WHE THERTHAT WAS ANY FACTOR IN ANYTHING, BUT THE TRIAL J UDGE MADE GREAT FACT UAL FINDINGS IN HIS RU LING ON THAT SUPP RESSION THING, AND BASICALLY SAID THAT DESPITETHE FACT THAT THERE ARE ALLOF THESE OFFICE RS THERE, TWO P LAIN CLOTHESED DETECTIVES ACCOMPANIED THE DEFENDANTOVER TO AN OF - - TO A STAND OF PINE TREES , WHERE THEY SAT DOWN AND TALKED. THEY DENIED THE RULING THAT ALL OF THE OFFICERS WERE THERE , BUT THEY WEREN'T INVOLVED IN THE DISCUS SION BETWEEN THE TWO P LAIN CL OSED DETECTIVES AND THE APPELLANT. THEY TOLD HIM THAT H E WASN'T UNDER ARREST.

EVEN THOUGH THEY TOLD HIMTHAT HE WASN'T UNDER ARREST AND ALL OF THE OTHER OFFICERS WERE NOT INVOLVED THERE , WOULDN'T A REASONABLE P ERSON BELI EVE THAT HE WAS F REE TO GO WITH WOULD A REASONABLE PERSON BELIEVETHAT HE WAS FR EE TO GO, WITH SO MANY POLICE OFFICERS AND OVERHEAD?

FI RST , I DON'T THINK HE WAS SURROUNDED BY SO MANY POLICE OFFICERS, BUT THEY WERE ON THE SCENE.

YOU SAID THAT THERE WERE A NUMBER OF POLICE OFFICERS WHO WERE AR OUND HISPROPERTY.

RIGHT.

IF THEY , WERE THEY , WOULD A REASONABLE PERSON WITHTHAT KIND OF SHO W OF FORCE , FEEL THAT HE WAS FREE TO SAY, NO , I AM NOT GOING TO GO?

BASED ON WHAT DETECTIVES TOLD HIM, I DON'T SEE WHY NOT. HE COULD VERY EASILY SAID I AM WORKING WITH MY FATHER AND I CAN'T GO RIGHT NOW.

HE WAS PL ACED IN HANDCUFFS TO BE TRANSPORTED TO BE INTERROGATED , RIGHT?

WHAT HAPPENED THERE IS , YOUR HONOR, A FTER THE DETECTIVES ASKED HIM IF HE WOULD ACCOMPANY THEM AND HE SAID HE WOULD , IT WAS ALL VOLUNTARY CO NSENT , APPARENTLY A UNIFORMED OFFICER WAS GOING TO TRANSPORT WIL L TO TRANSPORT HIM TO THE SHERIFFS OFFICE, AND PER REQUIREMENTS FOR OFFICER SAFETY REASONS, HE WAS HANDCUFFED IN THE BACK OF THE CAR.THIS WAS RIGHT AFTER DETECTIVE CHILDERS AND BEL L IN TA MPA HAD THE EVEN TS HAPPEN WHEN THEY WERE TRANSPORTING SOMEBODY, SO I THINK THAT IS PRE TTY MUCH A REQUIREMENT NOWADAYS , THAT

ONLY AF TER HE WAS PL ACEDIN THE VEHICLE?

EXCUSE M E?

ONLY AFTER HE WAS PLACED? VEHICLE?

WHEN HE WAS RIGHT THEREAND THEN THEY IMMEDIATELY UNHANDCUFFED HIM, WHEN HEGOT TO THE STAT ION.

LET'S ASSUME THAT , TO A REASONABLE PERSON IT WOULDLOOK LIKE THE PERSON WAS I N C USTODY.

RIGHT.

BECAUSE WE KEEP ON, DO ESIT, SINCE THEY ADMINISTERED THE MIRA NDA WARNINGS BE FORE THEY START TALKING TO HIM.

RIGHT .

DOESN'T THAT OBVIATE , REALLY , HAVING TO DECIDE

THAT IS THE FACT THAT THE LOWER COUR T FOUND THAT THEY HAD PROBABLE CA USE TO ARREST HIM AT THE TI ME, BUT , YES , YOU ARE RIGHT. THERE WAS NOTHING CAME OUT OF THE , FR OM THE TIME THE OFFICERS GOT THERE TO THETIME THEY GO T TO THE STATION AND GAVE HIM HIS MIRANDA ON T APE , N OTHING FROM THAT TRANSPIRED OR CAME OUT AT TRIAL.THERE IS NO EVIDENCE AS TO ANY STATEMENTS HE MAY HAVE MADE AT THAT T IME. HE WENT TO THE POLICE STATION AND WAS ON VIDEOTAPE AND SIGNED MIRANDA.

SO YOU ARE TE LLING US THAT, EVEN IF THE TAKING OF HIM TO THE POLICE STATION , WAS IN FACT AN ARREST BY THE OFFICERS , THAT ILLEGALITY WAS NOT , THAT DI DN'T T A INT THE STATEMENT THAT HE LATER MADE?

WH AT I AM ARGUING IS THAT THERE IS EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THEY HAD PROBABLE CAU SETO ARREST HIM , RIGHT WHEN THEY GOT TO THE PARENTS HOUSE, THAT THEY CAN HAVE ARRESTED HIM RIGHT THERE.

LE T'S ASSUME THAT THEY DID. THEY HAD NOT HAVE PROBABLE CAUSE TO ARREST HIM , AND HE WAS ILLE GALLY ARRESTED .

WELL , I WOULD SUBMIT THAT HE WASN'T ILLEGALLY ARRESTED , BECAUSE HE WAS TOLD OVER ANDOVER AGAIN YOU NORTH UNDER ARREST.

I AM L A YING OUT A SCENARIO THAT , IF IN FACT HE WAS ILLE GALLY ARRESTED , YOUR ARGUMENT SEEM S TO BE THAT , BY TAKING HIM TO THE STATION , WHICH IS THE ILLEGAL ARREST, THEN G IVING HIM THE MIRANDAS , THAT THAT TAKES CARE OF THE ILLEGALITY. IS THAT YOUR ARGUMENT?

NO , THAT IS NOT MY ARGUMENT ACTUALLY, BECAUSE IAM NOT CONC EDING TH OSE TO BE FACTS .

UNDERSTAND, BUT IF IN FACT WE SAY THAT HE WAS ILLEGALLY ARRESTED , T HEN WHAT?

HE SIGNED HIS MIRANDA AND G AVE A VOLUNTARY STATEMENT. FURTHERMORE , NO THING CAME OUT OF HIS STATEMENT THAT WAS INTRODUC ED THAT WAS HARMFUL TO HIM.

DIDN'T YOU SAY THAT HE MADE A STATEMENT THAT THEPOLICE AND THE JURY , OBVIOUSLY , INTERPRETED IT AS A CONFESSION?

THAT WAS AFTER THE FACT. YOU ARE CORRECT. THAT IS TR UE. I KE EP FORGETTING THAT PART BUT THAT WAS NOT ON THE ACTUAL TAPE THAT WE PLAYEDTO THE JURY.

THAT WAS THE M OST EVIDENCE THAT WE HAD , ISN'TIT?

I WOULD SAY THERE ARE QUITE A FEW PIECES OF EVIDENCE THAT ARE VERY STRONG IN THIS CASE , INCLUDING THE DNA.

SPEC IFICALLY WHAT?

SPECIFICALLY THE DNA. WE HAD B LOOD SPATTERING INSIDE THE CAR, B OTH ON THE TRIM DOWN BY THE PASSENGER S EAT AND ON THE INTE RIOR DOOR J AMB , W HICH IS A VERY STRANGE PLACE , AND THE STATE ARGUED THAT THE DOOR WASOPEN WHEN THE ATTACK WASTAKING PLACE AND I T HI T UP IN THAT AREA OF THE DOOR JAMB.

WAS THERE SOME EVIDENCE OF HER WORKING ON THIS FARM OR WHATEVER IT WAS AND THAT

NO. THERE WAS EVIDENCE THAT SHEWORKED WITH THE APPELLANT AT HIS FATHER 'S LANDSCAPING BUSINESS, BUT THERE WAS NO EVIDENCE THAT SHE WAS EVER CUT , SCRATCHED , BL ED OR ANYTHING LIKE THAT . THAT WAS ALL JUST IN COUNSEL'S BRIEF, NOW, THE POSSIBLE ARGU MENT, BUT THEREIS NO , QUOTE , EVIDENCE AS TO THAT.

WHAT ABOUT THE PREPARESENS OF THE SE MEN? WHAT DOES THE THE PRESENCE OF THE SEMEN? WHAT DOES THE STATE SAYABOUT THAT?

THE SEME N WAS FOUND IN HERE IN HER AND THE M EDICAL EXAM INER STATED THAT THE SEMEN WOULD ONLY LAST 3-TO-6 DAYS AND THE DEFENDANT TESTIFIED HE HAD SEX WITH HER TWO WEEKS PR IOR TO THAT AND THAT IS ALL THAT CAME IN T WASN'T GOING TO THE SEXUA L BATTERY BECAUSE IT WENT T O THE INJURIES THE VICTIM RECEIVED TO HER ANUS AND NOT AS TO. THAT THE STATE WASN'T ARGUING AS TO ANY SIGNS OF SEXUAL BATTERY BUT MERELY T O REBUT THE DEFENDANT'SSTATEMENT THAT HE HAD HAD SEX WITH HER TWO WEEKS AGO.

YOUR OPPOSITION M A KES A SUBSTANTIAL ARGUMENT , W ITH REGARD TO THE ONLY REASON THE STATE WAS ABLE TO OB TAIN THE BL OOD EVIDENCE , WAS IN VIOLATION OF THE RIGHTS OF THIS DEFENDANT WITH RE GARD TO A FA LSE AFFIDAVIT T O PROCURE A A SE ARCH WAR RANT TO SEIZ E THE VEHICLE AND SEARCH ITS INTERIOR.

I BELIEVE

HOW WOULD YOU AD D RESS

I BELIEVE, THE TRIAL COURT IN ITS ORDER DENYINGTHAT, BASICALLY FOUND THAT NONE OF THOSE STATEMENTS MADE WERE INAC CURATE. COUNSEL FIRST

THERE IS ONE THAT I THINK YOU WOULD HAVE TO AGREE, WITH REGARD TO THE SPO TS ON THE SHEETS, WHICH IS PR ETTY SUBSTANTIAL.

I WOULD ARGUE THAT YOU COULD RE MOVE THAT AND YOU WOULD STI LL HAVE GOTTEN THAT SEA RCH WARRANT SIGNED , EVEN WITH WITHOUT THAT ONE SENTENCE ABOUT THE SHEET . THAT BE AS IT MAY , THE DETECTIVE THAT DRAFTED THE AFFIDAVIT THAT ACTUALLY OBSERVED THAT SHEET , TESTIFIED AT THE HE ARING , AND COUNSEL NEVER ASKED HIM , YOU KNOW , HERE IS THE SHEET. DOES IT LOOK LIKE IT L OOKED WHEN YOU SA W IT IN THE BACK OF THE CAR, SO IT WAS THEIR BURDEN BELOW TO SHOW THAT AND THAT NEVER CAME OUT, BUT YOU CAN BASI CALLY EXCISE OUT THE SHEE T, AND YOU ARE S TILL GOING TO HAVE PROBABLE CAUSE TO SEA RCH THAT VEHICLE. I MEAN, THEY HAD QUITE A BIT OF EVIDENCE ON THAT. I WOULD JUST LIKE TO GO BA CK REAL QUICK, TO THE DNA THAT I WAS DISCUSSING ON THE CARTRIM AND IN THE DOOR. THAT WAS DONE, THAT WAS TESTED USING STR DNA. THERE WERE 13 BLOOD SPATTER SPOTS THAT WERE, AND THEY TESTED THOSE AND THOSE CAME BACK TO BE THE VICTIM 'S AND IT IS THE 1 IN 12 PADRILLION NUMBERS, AND THEY TESTED AND COUNSELAL ALLU DED TO VARIOUS THINGS AND I WOULD LIKE TO CORRECT SOME OF THOSE, IN THAT SHE SAID THE STATE'S EXPERT WAS NOT QUALIFIED TO TESTIFY REGA RDING THE MI GHT CONNED THE MITOCHONDRIAL D NA. SHE NEVER TESTED THAT BE LOAF BELOW WHETHER HE WASQUALIFIED. SHE FIRST SAID WE ARE ACCEPTING THIS AND THEN ON THE EVE OF TRIAL SAID, NO , NO , I DON'T BELIEVE THE STATISTICS ARE RIGHT AND THESTATE CA LLED AN OTHER INDIVIDUAL, DR . SLOAN , WHO WAS THE STATE'S EX PERT SUPERIOR B OSS THAT , AND HE TESTIFIED AS TO THE STATISTICS INVOLVING THE, WHAT THEY CALL THE 95 PERCENT CON FIDENCE INTERVAL , WHICH WAS SET FORTH IN MAG L ET I , BUT THE IN MMEGELETTI, BUT THE STATE'S EXPERT AT TRIAL WAS NEVERWHETHER HE HAD THE QUALIFICATION TO SAY DO THE COMPUTATIONS AND IN FACT COUNSEL NEVER ASKED HIMABOUT THAT, AND THERE WAS NO TESTIMONY THAT HE WAS NOT QUALIFIED TO DO THAT. THE FACT IS THAT THE STATE UTILIZED THIS OTHER INDIVIDUAL, THINKING THATTHE DEFENSE WAS RAISE AGO F RYE HEARING AS TO THE QUALIFICATIONS, AND BASICALLY THAT KIND OF DISAPPEARED, BUT THERE WAS NO EVIDENCE THAT THE STATE'S EXPERT THAT THEY US ED ON THE MOTOCHONDRIAL DNA WAS NOTQUALIFIED TO TESTIFY AS TO THE RESULTS HE OBTAINED FROM THE

WOULD YOU COME BAC K TO THE QUESTIONS YOU WERE BEING A SKED BY THE SELF WARRANT , PROBABLE CAUSE FOR THAT, BECAUSE YOU HAD ANOTHER ISSUE ON YOUR MIND .

OKAY.I HAVE BEEN JU MPING ALL OVER THE PLACE.

IN DISCUSSING THAT, ONEOF THE STATEMENTS THAT YOU MADE WAS THAT THERE WAS PLENTY IN THE

AFF IDAVIT.

TO SUPPORT THE ISSUANCE OF THE SEARCH WARRANT.

RIGHT.RIGHT.

COULD YOU A N ADDRESS THAT IN G REATER DETA IL.

THAT WAS BASICALLY THE OFFICERS HAD INFORMATION THAT, FROM WITNESSES , J OS E RODRIGUEZ IN PARTICULAR THAT,THE VICTIM AND THE DEFENDANT WERE SEEN AT THE LAUNDROMAT AT ABOUT ELEVEN O'CLOCK AT NIGHT ON SATU RDAY N IGHT ANDTHEN YOU HAD SHERRI RENFRO OBSERVING HIS CA R AND THE VICTIM AT THE INTERSECTION OF 44 AND 4 37 , WHERE SHE WAS ATENTING TO JUM P OUT OF A MOVING VEHI CLE , AND A SHORT TIME LATER , AND THAT AL ON E , THE FACT THAT THE VEHICLE WAS IDEN TIFIED AS INVOLVED IN THIS KIDNAPING AND THIS MURDER, THAT ALONE , WOULD HAVE G IVEN A JUDGE REASON TO S IGN THE SEARCH WARRANT.

SO HAD SHE IDENTIFIED THEVEHICLE BY THAT TIME ?

NO. SHE HAD NOT SEEN THE VEHICLEAT THAT TIME. SHE HAD JUST GIVEN THEDESCRIPTION OF THE VEHICLEAND OF THE VICTIM .

WAS THAT IN THE AFFIDAVITFOR THE SEARCH WARRAN T?

YES.

THE DESCRIPTION THAT IT WAS A WH ITE FEMALE MID-50S , WHITE T-SH IRT , AND THEN A CORSICA-TYPE CAR.

WAS THE INFORMATION FROM THE OTHER WITN ESS, THE MALE WIT NESS

AND REW M OTTS , A T THE TIME OF THE SEARCH, NO , THAT WAS NOT GIVEN YET. ANDREW MO TT S DID NOT , I DON'T BELIEVE HE HAD TA LKED OR SPOKEN TO DETE CTIVE PERDUE U N TIL AFTER THAT WAS OBTAINED IN THE CAR. BAS ICALLY, WHEN THEY WENT O UT TO THE PARENTS' PROPERTY AND SP OKE WITH THE DEFENDANT, THEY TOOK HIM BACK TO THESTATION , AND AT THE SAME TIME THEY WERE SECURING THE CAR AND TO WING IT BACK, SO IT CAME TO THE POINT THAT ACTUALLY DURING THE INTERROGATION ATION , ONE OF DETECTIVES WENT DOWNSTAIRS TO THE SALLY PORT WHER E THEY HAD OBTAINED THE INFO RMATION AND LOOKED AT THE CAR.

AT THE SAME TIME THEY NORTH ARRESTING THE DEFENDANT, THEY ARE TOWING HIS VEHICLE BEFORE THEY OBT AIN THE SE ARCH WARRANT?

RIGHT. RIGHT.

WHAT AUTHO RITY DID THEY HAVE TO TOW THE VEHICLE?

PROBABLE CAUSE AND THE CAROL DOCTRINE.THAT IS WHAT THE COURT FOUND BELOW IS THAT THEY HAD PROBABLE CAUSE TO SE IZE THE VEHICLE RIGHT THEN AND THERE , JUST LIKE THEY HAD PROBABLE CAUSE TO ARREST THE DEFENDANT , AT THE TIME THEY WENT

WHY DID THEY NEED ASEARCH WARRANT?

JUST AS A STANDARD PROCEDURE THAT THEY WERE DOING. UNDER THE CAROL DOC TRINE , THEY DIDN'T NEED THE SEARCH WARRANT , BUT THEY WENT AHEAD AND OBTAINED ONE , ANYWAY.

SO THEY IMPOUNDED THE VEHICLE FIRST AND THEN OBTAINED THE SEARCH WARRANT TO SEARCH THE VEHICLE.

CORRECT. MY UNDER ING IS , BY THE TIME THE TOW TRUCK D RIVER HAD GOTTEN BACK TO THE LAKE COUNTY SHERIF FS OFFICE, THEY WERE IN THE PROCESS OF GETTING THE WARRANT SIGNED RIGHT THEN.

DID THE WITNESS AT THE LAUNDROMAT WHO HAD OBSERVED THE DEFENDANT AND VICTIM TOGETHER, WAS IT AN H OU R OR YOU HOUR AND-A- HALF BEFORE?

HE TESTIFIED THAT AN HOUR OR AN HOUR AND-A-HALF BEFORE?

HE TESTIFIED THAT HE WOULD GO UP THER E TO AC CEPT A CALL AT THE PAY P HONE AND HE U SUALLY SPOKE TO HIS GIRLFRIEND FOR ABOUT 35 MINUTES. ON THIS EVEN ING HE GOT THEREAND THE LAUNDROMAT , HE GOT THERE AND THEY WERE CLOSED AT 10:1 5 IN THE EVENING AND HE WENT AND TALKED TO HIS GIRLFRIEND ON THE TELE PHONE FOR 3 0 MINUTES AND WHEN THEY CAME BACK , THEY WERE THERE.

DID HE GIVE A DESCRIPTIONOF THE VICTIM'S CL OTHE SOMETHING.

NO.I DON'T BELIEVE HE WAS ASKEDABOUT THE VICTIM'S CLO THING AND I DON'T BELIEVE THAT HE DID.THIS CAME OUT AT PRETRIAL , MOTION HEARINGS , AND WHAT HAD HAPPENED WAS HE WAS CONCERNEDFOR THE VICTIM BECAUSE SHE HAD JUST TOLD HIM THAT THE BOYFRIEND HAD BEATEN HER UP AND THREATENED TO KILL HER, SO WHEN HE SAW THE BOYF RIEND THERE , HE WASCONCERNED.HE TAPPED ON THE G LASS ANDCALLED THE APPELLANT OUTSIDE , AND WHILE THE PELL WANT WAS L EAVING THE LAUN DROMAT , HE ASKED ARE YOU OKAY , AND SHE INDICATED THAT SHE WAS OK AY.

THAT TESTIMONY WAS NOT PRESENTED AT T RIAL. IS THAT CORR ECT?

NO. THAT WAS ONLY IN THE SUPPRESSION HEARING THATTHAT CAME OUT. LIKEWISE THAT THE DEFENDANT HAD BEEN RELEASED FROM J AIL, THAT DIDN'T COME OUT AT TRIAL.THAT WAS ONLY IN THE PRETRIAL, BUT THAT WAS STUFFTHAT LAW ENFORCEMENT HADKNOWLEDGE IN THEIR POSSESSION THAT WENT TO ESTABLISHING THE PROBABLE CAUSE.

DID HE , A LSO , DESCRIBE THE DEFENDANT'S AUTOMOBILE?

YES. HE K NEW THAT HE DR OVE A WHITE FOUR- DOOR CAR. HE DIDN'T KNOW THE MAKE BUT HE KN EW IT WAS A WHITE FOUR-DOOR VEHICLE.

AND THE PO LICE HAD TALKED WITH HIM BEFORE SEEKING THE SEARCH WARRANT?

YES . HE WAS ONE OF THE FIRST WITNESSES THAT, REALLY , LINKED, THEY WERE TRY ING TO IDE NTIFY THE IDENTITY OF THE V ICTIM 'S BOYFRIEND. HE WAS THE ONE THAT WAS CRUCIAL IN THAT, BECAUSE HE HAD HAD A RELATIONSHIP WITH HIM AND HAD SPOK EN TO HIMAND KNEW THAT HIS N AME WAS E RIC AND WHAT HAVE YOU .

HOW WAS THE VICTIM ORIGINALLY IDENTIFIED BY THE AUTHORITIES?

FINGERPRINTS .

FINGERPRINTS .

FINGERPRINTS .

IN OTHER WO RDS THEY TOOK FINGERPRINTS FROM HER, AFTERSHE WAS DE AD?

RIGHT.

AND THEN MATCHED THOSE FINGERPRINTS TO THOSE FINGERPRINTS THAT WERE ONRECORD?

CORRECT.

HOW UNIQUE WERE THE T I RES WITH REGARD TO THE LOCATION WHERE THE VICTIM WAS FOU NDAND THE PRINTS ?

THE VICTIM WAS FOUND ANDTHERE ARE A LOT OF PHOTOS IN THAT SUPPLEMENTAL RE CORD. AS TO THIS AREA WHERE SHE WAS FOUND , IT W AS AN AREA THAT WAS QUITE COMMON FOR DUMPING KIND OF A SPARSELY WOODED AREA WITH TWO DIRT TIRE TR ACK R OA D GOIN G OUT INTO IT. THERE WERE A BU NCH OF TIRE TRACKS OUT THERE. THE LAW ENFORCEMENT OFFICERS THOUGHT THEY NOTICED WHERE ONE CAR HAD MA YBE TA KEN A 3-POINT TURN N E AR THE VICTIM'S BODY AND THEY FOUND FIVE TIRE TRA CKS, AND THEY TOOK THE BEST CAST THEY COULD OUT OF THE BEST TRACKS THEY COULD, AND TWO OF THOSEMATCHED THE TIRES ON THE APPELLANT 'S REAR TIRES , AND THOSE TIRES WERE DIFFERENT MANUFACTURER TIRES , AND SO THEY WERE TWO SEPARATE OR DISTINCT TIRES ON THE BACK , AND THE STATE INTRODUCED EVIDENCE THAT THE TIRE TRACKS WERE CONSISTENT WITH THOSE TWO REAR TIRES. SO THAT WAS, ALSO , INTRODUCED AS

CONSISTENT WITH OR WERE THE PRINTS OF THOSE TWOTIRES?

NO , CONSISTENT WITH. THERE WASN'T ANY UNIQUE IDENTIFY ARE THAT WOULD A LLOW THAT. JUST GENE RAL SI ZE . WIDTH.

WHERE WAS THIS IN RELATION TO THE PERSON WHO HAD FOLLOWED THE VEHICLE THEN LOST TRACK?

IT WAS VE RY CLOSE PROXIMITY.I BELIEVE IT WAS JUST AMATTER OF MILES A WAY . EVERYTHING MUCH THE LAUNDROMAT, THE INTERSECTION OF 4 4 AND 4 37 , I BELIEVE , WAS AL L IN A PRE TTY S MALL RADIUS IS MY UNDERSTANDING. I A M NOT , COUNSEL CAN PROBABLY CORRECT M E ON THAT I F I AM MI STAKEN , BECAUSE SHE IS MUCH MORE FAMILIAR WITH THAT AREA.

WHO PRESENTED THE TESTIMONY OF THE OTHER WITNESS THAT IDENTIFIED AN O LDER GENT LEMAN NOT MAT CHING THE DESC RIPTION ? AS DR IVING A WHITE CAR IN THE SAME VICINITY.

I BELIEVE YOU ARE REFERRING TO COUNSEL CALLED , I BELIEVE , A VETERINARIAN THAT WAS IN THE LOCATION ON A SUNDAY MOR NING AND OBSERVED A CAR P ULL OFF INTO THAT AREA THAT WAS WHITE WITH MULTIPLE STICKERS ON I T . BUT , REALLY , THAT DIDN'T MATCH UP WITH ANY OF THE INFORMATION THAT WE HAD. IT WAS, I THINK , JUST A RED HERRING , BUT TH ERE IS NO INDICATION THAT THAT CAR WENT BACK TO WHERE THE VICTIM'S BODY WAS ACT UALLY FOU ND. HE JUST PULLED OFF THE RO AD. I SEE MY TIME IS UP. THANK YOU.

CHIEF JUST ICE: REBUTTAL .

> I WOULD JUST LIKE TO NOTE THAT , AND I APOLOGIZE , MY HEAD WAS ELSEWHERE , I, IN THIS SUFFICIENC Y OF THE EVIDENCE PROBLEM, AFTER THE INCIDENT WHICH THE DEFENSE WAS NEVER PLACED , MR . SIMMONS WAS NE VER PLACED AT THAT SPOT, THE AREA, THEDIRECTION THAT THE CAR , THAT CAR WAS GOING , W AS A WAY F ROM WHERE THE BODY WAS FOUND. MS. RENFRO SAID THAT IT TURNED TO THE LEFT.IT WAS HEADING NORTH. IT THEN WENT WEST. THE PLACE WHERE THE BODY WAS FOUND WAS S O UTH AND E AST OF THAT LOCATION . THERE WERE NO , THE RE WAS NO EVIDENCE OF ANY WEAPONS, NO EVIDENCE OF ANY PLACE THAT THE MURDER OCCURRED, WHICH IS WH Y THERE IS A VE NUE QUESTION, AND THAT IS AN ISSUE IN THE BRIEF. THERE IS , WAS NO INVESTIGATION INTO THE HOMICIDE, IT SELF. ALL THE OFFICERS INVESTIGATION WAS INTO FINDING MR. S I MMONS. THERE WAS NO LOCATION OF ANYTHING TO DO WITH ANY O F THESE KRI MENTS . THE ONLY EVIDENCE OF THESE CRIMES. THE ONLY EVIDENCE AS TO THE SEXUAL BATT ERY IS THAT ITOCCURRED. THE EVIDENCE IS OF THEINJURY. THERE IS NO EVIDENCE AS TO WHERE IT OCCURRED, HOW IT OCCURRED, WITH WHAT I T OCCURRED OR WHO DID IT . THERE IS NO , THERE WERE FOUR , I BELIEVE , DIF FERENT TYPESOF WEA PONS IFIED BY THE MEDICAL EXAM INER IDENTIFIED BY THE MEDICALEXAMINER, DIFF ERENT TY PES. A KN IFE , PO SSIBLY TWO KNIVES, A T-SHAPED INSTRUMENT , A THREADED INSTRUMENT, AND A NONTHREADED , NONT-SHAPEDINSTRUMENT. THAT WOULD INDICATE THAT THERE WOULD BE MORE THAN ONEPERSON. THERE WERE NO INDICATIONS OF ANY BINDINGS HAVING BEEN ON THE VICTIM , FROM ANY MARKSON HER BODY.

SO THAT , AND YOU MA DETHOSE ARGUMENTS TO THE JURY.

YES .

WHAT YOU ARE SA YING IS ACTUALLY , SINCE HER D NA IS FOUND IN THE VEHICLE , A GAIN , HE IS THE LAST PERSON SEEN WITH HER , AND SHE , THERE IS NO QUESTI ON NOT ONLY IS SHE BRUTALLY MURED BUT SHE IS BRUTALLY R APED. THAT IS NOT A QUESTION.

YES. NO.

SO THE ISSUE IS WHO DID IT.

WHO DID IT.

NOT , THAT , AND NOW W E GO BACK TO WHETHER THERE WAS SUFFICIENT EVIDENCE TO LET A J URY MAKE THAT DECISION.

WHICH IS WHY IT WAS CRITICAL AS TO WHE N SHE WAS ACTUALLY KI LLED. BECAUSE THE FACT THAT NOBODY S AW HIM AFTER MR . RODRIGUEZSAYS THAT HE SAW HIMSOMEWHERE IN THE VICINITY OF 10:30, THEN THE EVENING BEFORE, THE I N CIDENT AT 437AND 44 OCCURRED AT MIDNIGHT. IT IS ONLY A FIVE -MINUTE DIS TANCE THERE . THAT IS, THERE IS NO DISTANCE AT ALL TO TRAVEL , SO WHAT TRANSPIRED IN THE INTERIM IS UNKNOWN. WHAT MAY HAVE TRANS PIRED AFTER THAT INC IDENT WITH THE CAR GOING THE OPPOSITE DIRECTION FROM WHER E THE BODY IS FOUND, IS UNKNOWN. IN FACT , WHERE ANYTHING HAPPENED TO HER IS ABSOLUTELY UNKN OWN , AND THE STATE , SO CO NCEDED. I AM SO RRY .

DID YOUR CLIENT'S CARHAVE AN AMERICAN F LAG HANGING OUT THE PASSENGER SIDE ON THE BACK?

YES AND THE FLAG WAS NOT MENTIONED BY ANYON E UN TIL AFTER THEY VIEWED THE CAR, HIS CAR. NOT THE CAR AT THE TIME . NOBODY MENTIONED A FLAG. NEITHER MR. RENFRO NO R MR . M OTTS MENTIONED THE FL AG , AND IT WAS ON THE PASSENGER WINDOW AND IT WAS ONE OF THOSE THAT HOOKS ON THE WINDOW AND STANDS UP.

DID MRS. RENFRO NEXT?

NO , SHE DID NOT. MRS. RENFRO SAID THAT, AFTER SHE SAW THE CAR SHE REMEMBERED A BU MPER STICKERON THE DRIVERS SIDE WHIC H SHE COULD NOT HAVE SEEN FROM THE PASSENGER SIDE. THERE WAS ALSO AN OFFICER WHO TESTIFIED ON THE STATEWHO SAID THAT HE USED TO WORK THAT AREA WITH A DE PUTY I BELIEVE AND SAID THAT IT WAS SO WELL LI T THERE THAT YOU COULD SEE ANYONE IN THE CAR AND THAT IS WHY THEY USED TO BE THERE , BECAUSE THE IDENTIFICATIONS WERE SO GOOD. ILL JUST LIKE TO SAY THAT, WHILE IT I WOULD JUST LIKE TO SAY THAT, WHILE IT MAY BE OF NO MO MENT TO THIS COURT, I BELIEVE IN MR . SIMMONS 'S INNOCENCE MORE THAN I HAVE EVER BELIEVED IN ANYONE'S AND JUST PLEASE LOOK AT IT VERY CAREFULLY.

CHIEF JUST ICE: THANK YOUVERY MUCH.THE COURT WILL BE IN RE CESS U NTIL NINE O'CLOCK TOMORROW MORNING.

MARSHAL: PLEASE RISE.