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Richard Allen Johnson v. State of Florida
SC04-1972
GOOD MORNING GOOD MORNING,
JOHNSON VERSUS STATE OF
FLORIDA, MR. CALDWELL.
.
-- I APOLOGIZE --
THAT IS ALL RIGHT.
ALL RIGHT.
MY NAME AS GARY CALDWELL, I'M
HERE TODAY ON BEHALF OF
MR. RICHARD ALLEN JOHNSON, ON
HIS APPEAL FOR HIS FROM HIS
CONVICTION FOR MURDER AND
OTHER OFFENSES -- I'D LIKE TO
DISCUSS THE FIRST TWO ISSUES
RAISED IN THE BRIEF TODAY.
FIRST ISSUE HAS TO DO WITH
JURY SELECTION, THE LAW IN
FLORIDA REQUIRES IMPARTIALITY
OF JURORS IT DOES NOT REQUIRE
COMFORT.
DOES NOT REQUIRE THAT THEY
NEED TO BE COMFORTABLE WITH
THE DEATH PENALTY AND ONLY
REQUIRES THAT THEY FOLLOW THE
LAW.
WHAT HAPPENED IN THIS CASE
WAS THERE WAS A JUROR NAMED
MISS MONFORD, THE STATE
SOUGHT TO CHALLENGE HER FOR
CAUSE, BECAUSE OF A QUESTION
HE HAD ASKED HER ABOUT
WHETHER HER FEELINGS ABOUT
THE DEATH PENALTY WOULD
SUBSTANTIALLY IMPAIR HER
ABILITY TO FOLLOW THE LAW.
SHE RESPONDED TO THE
PROSECUTOR I WOULD DEFINITELY
FOLLOW THE LAW.
THAT WAS NOT SOMETHING THAT
SHE WOULD LIKE TO DO SHE
WOULD NOT LIKE TO NOT HAVE TO
DO THAT -- BUT SHE WOULD LIKE
TO FOLLOW THE LAW, SO THE
HER ANSWER WAS SHE WOULD
DEFINITELY FOLLOW THE LAW.
PROSECUTOR SAID TO THE JUDGE
AND YOU WILL SPREE WHAT I
JUST SAID THE RECORD DOES --
SUPPORT WHAT THE PROSECUTOR
SAID HE SAID HE ASKED HER IF
SHE COULD THERE BE
SUBSTANNINGSHAL IMPAIRMENT OF
HER ABILITY TO FOLLOW THE
LAW, AND SHE HAD SAID, AND
MORE SHE SAID THAT IT WOULD
IMPAIR HER ABILITY TO FOLLOW
THE LAW.
WHICH IS NOT CORRECT.
SO THE RECORD DOES NOT
SUPPORT THE PROSECUTORS
ASSERTION WHAT THE JUROR SAID
IN HER RESPONSE TO HIS
QUESTION ABOUT THAT.
WHICH PAGE OF THE RECORD
ARE YOU REFERRING TO --
WHAT PROSECUTOR SAID TO
THE JUDGE -- OR.
WHATEVER YOU JUST.
HE WITH THE PROSECUTOR
SAID TO THE JUDGE THAT IS
PAGE 1261 --
HOW ABOUT, THOUGH, THE
MR. SEYMOUR SAYS ARE YOU
DOUBTING YOUR ABILITY TO VOTE
FOR THE DEATH PENALTY SHE
ANSWERS YES I'M DOUBTING MY
ABILITY THAT I COULD.
I DON'T BELIEVE IN IT.
COULD I BRING MYSELF TO NOT
VOTE FOR IT?
NO IF IT NEEDED TO BE THAT
WAY, YES I COULD.
I DON'T LIKE IT I DON'T AGREE
WITH IT.
AND THEN AT THE END SHE GOES
I DON'T KNOW.
I CAN'T GIVE YOU A YES OR NO
ANSWER.
SO IT SEEMS TO ME THAT THE
STANDARD IS SHE HE KWIFB CAL
ABOUT HER EQUIVOCAL ABOUT HER
ABILITY TO SET ASIDE HER
FEELINGS AND IT LOOKS TO ME
LIKE SHE IS -- SHE IS CLEARLY
EQUIVOCAL.
IN ABOUT HER ABILITY TO
RECOMMEND DEATH.
ALL RIGHT.
THAT IS EARLIER IN THE
QUESTIONING, I BELIEVE THAT
IS PAGE 1125.
IF YOU LOOK AT THE QUESTION
THAT THE PROSECUTOR SAID TO
THE JURY -- THE THING THAT
TOOK SEVERAL SENTENCES A
COMBINATION OF NOT VERY
ACCURATE STATEMENT OF LAW
GOVERNING SENTENCE$$!!ING
PROCEEDINGS, IN WHICH
PROSECUTOR SEEMED TO ASSUME
THAT THERE IS SITUATIONS IN
WHICH THE LAW REQUIRES DEATH
SENTENCE, AND THAT PUT
ESTABLISHMENT OF AGGRAVATING
CIRCUMSTANCE IS SUFFICIENT TO
REQUIRE A DEATH PENALTY --
WHERE IN FACT THE STATE HAS
TO ESTABLISH SUFFICIENT
AGGRAVATING CIRCUMSTANCES AND
THEN THE DEFENSE PUTS FORWARD
MITIGATING SISHGS, KNOWS THE
PREDICATE TO THE QUESTION WAS
TO -- DISCOURSE, HIS QUESTION
SIMPLY DID NOT ALLOW OF A YES
OR NO ANSWER.
AND SHE SAID I CAN'T GIVE A
YES OR IN ANSWER WHICH WAS
INARGUABLY THE CORRECT ANSWER
THAT ONE THE ONLY LOGICAL AN
THAT ONE COULD GIVE TO THE
QUESTION, BECAUSE HIS
QUESTION WAS AND I APOLOGIZE
FOR READING FROM THIS BUT IT
I THINK WILL ESTABLISH HOW
HER QUESTION DID NOT HER
ANSWER DID NOT DISQUALIFY
HER.
THE SPECIFIC QUESTION WAS YOU
MAY SIT THERE AND SAY THE LAW
SAYS I SHOULD VOTE FOR THIS,
BUT I JUST DON'T LIKE IT, AND
I DON'T WANT TO DO IT IN THIS
CASE AND THIS IS NOT ONE OF
THE CASES I WOULD DEFINE AS
CALLING FOR THE DEATH
PENALTY, COULD YOU
SUBORDINATE YOUR FEELINGS AND
VOTE FOR THE DEATH PENALTY IN
THIS CASE?
OR ARE YOUR PERSONAL FEELINGS
SO STRONG YOU WOULDN'T BE
ABLE TO -- WON'T BE ABLE TO?
THAT WAS A VERY CONFUSE
QUESTIONING TO NOT ALLOW A
YES OR NO ANSWER, AND IT
ASSUMED THAT THERE SITUATIONS
IN WHICH DEATH PENALTY IS
REQUIRED.
WHICH IS NOT CORRECT.
SUBSEQUENTLY THE PROSECUTOR
ASKED HER THE CORRECT
QUESTION, WHICH WAS WHETHER
THESE FEELINGS WOULD
SUBSTANTIALLY IMPAIR WITH HER
ABILITY TO IMPOSE THE DEATH
-- TO VOTE FOR THE DEATH
SENTENCE SHE SAID SHE WOULD
DEFINITELY FOLLOW THE LAW
THAT WAS WHAT THE PROSECUTOR
RELIED ON, THE PROSECUTOR
DIDN'T RELY.
HE WHAT IF SHE SAID I
ENEMY AT ONE POINT I THINK
YOU ARE REFERRING TO PAGE
1258 AND 1259.
YES, SIR.
SHE SAYS I WOULD
DEFINITELY FOLLOW THE LAW IF
ASKED TO BUT IT IS NOT
SOMETHING LIKE TO DO KCHLT I
WOULD NOT I WOULD LIKE TO
FOLLOW THE LAW, I WOULD NOT
LIKE TO GIVE THAT DECISION.
UM-HMM.
SO SEEMS AGAIN SHE IS
BEING EQUIVAMERICA SHE SAYS I
WOULD FOLLOW THE LAW BUT,
AIS, WOULDN'T LIKE TO GIVE
THAT DECISION.
WELL THAT DOESN'T
DISQUALIFY SOMEONE NOT
WANTING TO BE GIVEN THAT
DECISION.
MAYBE NOT ALONE BUT
COMBINED WITH HER PRIOR
STATEMENTS IS, DON'T HAVE A
YES OR NO ANSWER, AND NO I
COULDN'T FOLLOW IT.
-- YOU CAN'T READ THAT ONE
SENTENCE IN ISOLATION YOU'VE
GOT TO READ IT IN COMBINATION
WITH EVERYTHING ELSE, YL
DOESN'T THAT MAKE IT
EQUIVOCAL.
EQUIVOCAL.
SHE SAID I WOULD
DEFINITELY FOLLOW THE LAW.
SO THAT -- SO THERE IS NO
BASIS FOR DISQUALIFICATION --
DISQUALIFICATION IN HER
RESPONSE TO QUESTION THAT, IT
IS WELL ESTABLISHED THAT THE
QUESTION IS WHETHER THE
JURORS FEELINGS WOULD
SUBSTANTIALLY IMPAIR HER
ABILITY TO FOLLOW THE LAW OR
REACH A VERDICT BASED ON THE
FACTS OF THE CASE, AND SHE
SAID I WOULD DEFINITELY
FOLLOW THE LAW.
I JUST DON'T WANT TO.
I DON'T WANT TO BE IN THAT
POSITION.
SO THAT DOES NOT DISQUALIFY
HER, NOW, AGAIN, HER EARLIER
QUESTION WHICH THE JUDGE THE
EARLIER QUESTION WHICH THE
JUDGE HAD RELIED ON WAS ONE
IN WHICH -- IN WHICH THERE
WAS NO ANSWER THAT ONE COULD
GIVE TO THE PROSECUTOR'S
QUESTION WHICH WAS BASED
ONNEA -- AN ERRONEOUS
STATEMENT OF THE LAW
GOVERNING CAPITAL
PROCEEDINGS, AFTER WHICH
DEFENSE COUNSEL SAID TO HER,
ACCURATELY STATED THAT THE
STATE WAS FOR THE AGGRAVATING
CIRCUMSTANCES AND THEN THE
DEFENSE -- THE MITIGATING
CIRCUMSTANCES, WHICH -- WAS
SHE ABLE TO WEIGH THOSE
CIRCUMSTANCE -- THOSE
FACTORS, SHE SAID YES, THAT
SHE WOULD.
SO AS THE CASE AS THE
QUESTIONING PROCEEDED AND AS
THE PROCEDURE WAS EXPLAINED
TO HER MORE ACCURATELY SHE
BECAME FIRMER IN HER
STATEMENT THAT SHE WOULD
FOLLOW THAT LAW.
THE $$PROSECUTOR'S EARLIER
QUESTION THE ONE THAT JUSTICE
PARIENTE HAD MENTIONED WHICH
WAS BASICALLY SORT OF AN OUT
STRIKE KIND OF THING, AND
AGAIN IT WAS NOT ACCURATE.
BUT AS IT WAS EXPLAINED TO
HER BY THE DEFENSE ATTORNEY
SHE SAID THAT SHE WOULD BE
ABLE TO DO THAT, AND THAT
IN --
YOUR ARGUMENT REALLY IS AS
LONG AS YOU MAKE THAT
STATEMENT NO MATTER WHAT ELSE
HAS GONE ON IN THE VOIR DIRE
NO MATTER HOW EQUIVLALT
EQUIVOCAL JUROR HAS BEEN OVER
MULTIPLE TIMES BEING ASKED
THAT AS LONG AS THE JUROR AT
SOME POINT MAKES A STATEMENT
THAT I WILL FOLLOW THE LAW,
BUT THAT IS SUFFICIENT.
I BELIEVE THAT THE ANSWER
IS THAT UNDER ALL -- ALT YOU
LOOK TO WHETHER THE RECORD
SUPPORTS THE GROUND ASSERTED
BY THE PROSECUTOR WHICH I'M
SUBMIT TO YOU THE RECORD DOES
NOT.
SUPPORT IT.
AND DEFENSE ATTORNEY POINTED
THAT OUT.
DEFENSE ATTORNEY SAID NO, AS
I DISAGREE WITH HER THE
PROSECUTOR'S CHARACTERIZATION
OF THIS, AND YOU LOOK TO WHAT
THE JUDGE RELIED UPON AND THE
JUDGE RELIED UPON THAT
EARLIER QUESTION WHICH I
QUOTED, IN HER RESPONSE TO
THAT THAT SHE DID NOT HAVE A
YES OR NO ANSWER.
TO THAT QUESTION.
BUT I GUESS THE PROBLEM
AND IT HAPPENS IN OTHER
CONTEXT, IS THIS:AND THIS IS
WHERE ALTHOUGH FOR CAUSE
CHALLENGES ARE DIFFERENT
SOMETHING ABOUT DEMEANOR
PLAYS INTO IT WHICH IS THAT
IT IS OFTENTIMES SKILLFUL
ATTORNEY CAN GET A JUROR
AFTER THEY HAVE EQUIVOCATED
TO SAY O YEAS BUT I WILL DO
THIS AND SO IT IS THE
TOTALITY OF THE QUESTIONING
THAT GIVES RISE TO WHETHER
THERE'S REASONABLE DOUBT.
WOULD YOU AGREE?
IN OTHER WORDS YOU CAN'T JUST
YOU ARE SAYING WELL YOU CAN'T
LOOK AT THE FIRST ANSWER.
AND SAY, THAT SHE
EQUIVOCATED.
BUT YOU ALSO AGREE YOU CAN'T
LOOK AT THE LAST ANSWER, AND
SAY THAT SHE DIDN'T
EQUIVOCATE.
DO YOU AGREE WITH THAT.
IT IS NOT EITHER ONE OR IN
OTHER WORDS, OR NOT THAT YOU
COULD -- LAST ANSWER SAID SHE
WAS FIRM SHE SAID I COULD DO
IT.
YOU'VE GOT TO AND PARTICULAR
WE MAKE ON THE CASES THERE
WILL BE SOMETIMES, COURT WILL
ASK A JUROR QUESTIONS AND ALL
OF THE SUDDEN THERE WILL BE
-- BECOME FIRM ABOUT
SOMETHING EQUIVOCATING ABOUT,
IT IS LOOKING AT THE TOTALITY
OF THE QUESTIONING TO SEE
WHETHER THAT JUROR EXPRESSED
A DOUBT ABOUT BEING ABLE TO
IMPOSE THE DEATH PENALTY IF
IT WERE CALLED FOR IN THIS
CASE, BECAUSE OF HER BELIEF
AGAINST THE DEATH PENALTY.
PARTICULAR THAT IS
STANDARD --
RIGHT.
WELL, THE -- TRIAL JUDGE WELL
YOU ARE REVIEWING THE
DECISION OF THE TRIAL JUDGE.
AND THE FURTHER IN THE TRIAL
JUDGE SO FAR IS TRIAL JUDGE
-- BASES DECISION ON MATTERS
NOT EASILY DISCERNED FROM THE
RECORD THAT IS WHAT ALTON
SAYS HERE THE JUDGE RELIED ON
WHAT 3R0RS SAID YOU SA AGREED
WITH PROSECUTOR AS I SAID
WHAT THE PROFESSIONOR SAID
WAS NOT ACCURATE
KAUSHGIZATION.
THE JUDGE SPECIFICALLY
REFERRED TO THAT EARLIER
QUESTION, WHICH WAS THE ONE
THAT I READ WHICH WAS SO IT
WAS THE QUESTION WAS
CONFUSING.
IT DIDN'T SHOW KONS FUSION BY
THE JUROR, IT SHOWED
CONFUSION IT WAS JUST THE
QUESTION CONFUSING SHE
COULDN'T ANSWER THAT, SAID I
DON'T HAVE A YES OR NO ANSWER
AND THE PROSECUTOR SAID FAIR
ENOUGH AND TURNED TO ANOTHER
JUROR.
SO, IF YOU LOOK AT THE
TOTALITY OF THE CIRCUMSTANCES
WHEN THE ISSUE WAS BROUGHT
BEFORE HER, AS TO THIS IS THE
PROCESS WILL YOU WEIGH THE
CIRCUMSTANCES, SHE SAID YES,
AND IF YOU LOOK AT WHAT SHE
WAS ASKED SUBSEQUENTLY IT WAS
NOT SOME LEADING QUESTION BY
ONE PARTY OR THE OTHER TO GET
HER TO AGREE WITH WHAT THAT
PERSON WAS SAYING.
SHE PROSECUTOR OBVIOUSLY WAS
HOPING SHE WOULD SAY IT DOES
SUBSTANTIALLY IMPAIR BUT SHE
REPLIED I DEFINITELY WOULD
FOLLOW THE LAW.
NOW THERE'S A QUESTION IN
THIS CASE AS TO WHETHER THIS
ISSUE WAS PRESERVED WOULD --
WHAT HAPPENED WHEN THE
DEFENSE ATTORNEY MADE THIS
WHEN THE DEFENSE ATTORNEY
ARGUED THIS ISSUE OBJECTED TO
THE CHAMPION THE JUDGE -- TO
THE CHALLENGE THE JUDGE SAID
OF YOU A CONTINUING OBJECTION
I'M NOT THE MOST EXPERIENCED
LAWYER IN THE WORLD, BUT, TO
ME WHEN A JUDGE SAYS OF YOU A
CONTINUING OBJECTION, THAT
MEANS I DON'T WANT TO HEAR
ANYTHING MORE ABOUT IT.
SO THE DEFENSE ATTORNEY DID
NOT LATER RENEW THE OBJECTION
AT THE TIME THAT THE JURY WAS
SWORN, SUBSEQUENTLY, THERE
WAS ANOTHER CAUSE CHALLENGE
TO A JUROR, AT WHICH POINT
AGAIN THE JUDGE SAID YOU
DON'T OF YOU A CONTINUING
OBJECTION, THE ISSUE IS
PRESERVED FOR APPEAL.
SO THE CONTEXT OF THE WHOLE
THING IS THE DEFENSE ATTORNEY
WAS HEARING FROM THE JUDGE,
ONCE I SAY OF YOU A
CONTINUING OBJECTION, MATTER
IS SETTLED DOUNT HAVE TO
RERAISE IT SUBSEQUENTLY WHEN
THEY WERE GOING THROUGH THE
PEREMPTORY CHALLENGES AT
VARIOUS STAGES THE DEFEND --
DEFENSE ATTORNEY WOULD SAY WE
ACCEPT, THE JUDGE WOULD SAY
DO YOU HAVE ANY PREMENTRY
CHALLENGE AT THIS POINT THE
DEFENSE ATTORNEY WOULD SAY
ACCEPT.
BUT EVEN AFTER THAT HE ASKED
FOR ADDITIONAL PREMENTRY
CHALLENGES THE LAST TIME --
HE ASKED FOR ADDITIONAL
PEREMPTORY CHALLENGES, AND
THERE WAS A FEEL THAT SLAPY
ISSUE WHERE AGAIN THE JUDGE
SAID OF YOU A STANDING
OBJECTION YOU DON'T NEED TO
RAISE THIS AGAIN, SO FROM
THIS IS THE CIRCUMSTANCES
THERE WAS NO REASON FOR THE
DEFENSE ATTORNEY TO RENEW THE
OBJECTION AT THE TIME THE
JURY WAS SWORN HE WAS TOLD
THERE WAS A STANDING
OBJECTION.
YOU ARE GOING TO GO INTO
YOUR OTHER ISSUE ABOUT THE
WHAT IS -- BEEN FOUND AT
LEAST BY THE TRIAL JUDGE TO
BE -- THE EXCITED UT RANSZ
THE -- UTTERANCE THE ISSUE
WITH THE THE VICTIM SAID TO
THE DEFENDANT WHILE HE WAS
CHOKING HER.
YES, MA'AM, JUST BEFORE I
DO THAT LET ME SAY ONE OTHER
THING ABOUT THAT FIRST ISSUE
WHICH IS THAT WE ARE ASKING
FOR A NEW TRIAL.
ENTIRELY AND NOT SIMPLY A NEW
PENALTY PHASE, BECAUSE OUR
CONTENTION IS THAT OUR MY
CONTENTION IS THAT UNDER BOT.
SO IN USED TO BE CALLED GUILT
PHASE IS ALSO DEATH
QUALIFICATION PHASE THE
DECISION SAYS CONVICTION OF
FIRST-DEGREE MURDER ALONE IS
SUFFICIENT TO QUALIFY SOMEONE
FOR THE DEATH PENALTY SO THAT
IS THE FWAIP USED TO BE
CALLED TRIAL FOR GUILT I
GUESS SHOULD BE SOME OTHER
FORMULATION OF IT NOW IT IS
ALSO DEATH QUALIFICATION
PERIOD THE ONLY PERIOD
CONSTITUTIONALLY REQUIRED FOR
THE JURY PROCEEDING UNDER
RING THAT IS THE FIRST THING
LEADING UP TO THE VERDICT THE
FIRST THREE -- MURDER SO FOR
MA REASON I CONTEND THAT
ENTITLED TO A NEW TRIAL ON
BECAUSE OF THE DENIAL OF THE
CAUSE CHALLENGE.
BUT --
--
TYPICALLY, ACROSS THE
COUNTRY THAT -- RING KIND OF
ISSUE THAT REQUIRES A NEW
TRIAL ON ALL OF THE GUILS
ISSUES AS WELL AS ANY PENALTY
PHASE UNDER A SYSTEM OF SUCH
AS OURS WE HAVE A DUAL TRIAL.
WELL IS, THINK I THINK
THAT THE THING IN WITH RING
THAT IS THE JURY HAS NOT MADE
THE FINDING DEATH
QUALIFICATION THE DEFENDANT
CANNOT BE SENTENCED TO DEATH.
-- THE DEATH QUALIFICATION
IS A 6TH AMENDMENT NECESSARY
ELEMENT.
SO UNDER THE IN ORDER SYSTEM
AS INTERPRETED BY BOTISON
THASHGS DEATH PENALTY ISSUE
BECAUSE CONSTITUTIONAL DEATH
PENALTY ISSUE IS DECIDE BIRD
THE GUILT VERDICT WASN'T LAW
PRIOR TO BOTISON.
BOTISON PLURALITY PIN POST
CONVICTION CASE BE THAT AS IT
MAY --
I THINK THAT IS WHERE
FLORIDA LAW IS NOW THIS COURT
HAS --
ALL RIGHT, DON'T WANT TO
OVERCHARACTERIZE IT HEAT OF
THE DISCUSSION BUT I BELIEVE
THE COURT HAS SAID BASICALLY
RING DMROOINTS FLORIDA.
-- DOESN'T APPLY TO FLORIDA
OR HAS COME CLOSE TO THAT SO
THAT IS OUR POSITION IN THAT
REGARD.
THE SECOND ISSUE HAS TO DO
WITH THIS STATEMENT OF THE
VICTIM WHICH WAS BROUGHT OUT
ON THE RE-REDIRECT
EXAMINATION VERY UNUSUAL
PROCEDURAL POSTURE FOR
SOMETHING LIKE THIS TO COME
UP.
THAT THE WOMAN MISS TAMMY HAD
SAID THAT SHE WANTED TO SEE
HER CHILDREN.
THE DEFENSE OBJECTED, MADE
SEVERAL OBJECTIONS TO THIS
IS, BELIEVE FIRST OBJECTION
WAS THAT THE PREJUDICE
OUTWEIGHED FLEE SEED REALLY A
VALUE.
AND THIS -- OUTWEIGHED
PROCEDURAL VALUE THE COURT
STAEBZ FOUR PART ANALYSIS FOR
DETERMINATION OF THAT ISSUE I
SUBMIT UNDER ALL FOUR PRONGS
OF THAT ANALYSIS THIS
STATEMENT WAS NOTED A
MISSIBLE
WHAT WAS IT IT WAS AD
MITTED AND PROBATIVE OF WHAT
JOHNSON THOUGHT AT THE TIME
THAT -- THAT THE VICTIM MADE
THIS REMARK TO HIM.
WASN'T THAT IN OTHER
WORDS, IT'S -- WHETHER IT IS
SAYING I HAVE A PLEASE,
PLEASE DON'T DO THIS, I'VE
GOT A -- YOU KNOW, A CHILD
WHO IS DYING, I HAVE A SICK
WHATEVER, JOHNSON BELIEVED
THAT TO BE THE CASE, AND
THEREFORE AND CONTINUES TO
PROCEED WITH THE MURDER.
THAT IS WHAT THEY WERE
WEREN'T THEY SEEKING TO ADMIT
IT OR AS PROBATIVE OF
JOHNSON'S STATE OF MIND?
NO.
THE STATE AND THE PENALTY
PHASE AND IN THE SENTENCING
ORDER IT WAS SPECIFIC FIND
WAS MADE THIS IS WITH THE HER
LAST THOUGHT WAS.
THAT SHE WANTED TO SEE HER.
HE HOW IS THAT IT CAME IN
FOR THE GUILT PHASE TOO.
RIGHT.
WITH THE THAT POINT THE
JUDGE SAID THIS IS ADMISSIBLE
TO SHOW HER THOUGHT THAT SHE
IS DYING AND SHE WANTS TO
MAKE THIS STATEMENT --
WHAT I'M ASKING YOU SO
WHAT -- WOULD YOU SAY WHAT IS
THE RELEVANT IN GUILT FAZE AS
TO WHAT SHE IS THINK SNOOG
UM-HMM.
CORRECT.
WITH THE I'M SAYING IS IT
IS RELEVANT IN THE GUILT
PHASE AS TO WHAT JOHNSON
THOUGHT WAS GOING ON TO SHOW
PREMEDITATION.
IN THAT CASE IT WOULDN'T
HAVE BEEN ADMITTED FOR THE
TRUTH OF THE MATTER ASSERTED.
WHICH BUT IN THIS CASE IT WAS
AD MITTED FOR THE TRUTH OF
THE MATTER --
THAT CAN'T BE WHY IT WAS
BEING ADMITTED IT WAS BEING
ADMITTED, FOR THE TRUTH OF
THE MATTER ASSERTED, HER
DESIRE TO SEE HER CHILDREN.
SO STATE NEVER ARGUED THAT
THIS SHOULD BE ADMISSIBLE
NONHEARSAY TO REFLECT
JOHNSON'S STATE OF MIND THAT
WAS NEVER ARGUED BELOW?
NO.
BUT THE STATE SAID WAS IT IS
NOT HEARSAY BECAUSE IT IS IN
THE COAST'S STATEMENT BUT THE
JUDGE POINTED OUT --
DEFENDANT'S STATEMENT BUT THE
JUDGE POINTED OUT IN THE
DEFENDANT'S STATEMENT BUT
KEYNES HER HEARSAY STATEMENT,
THE STATE SAID YES BUT IT IS
AN EXCITED UTTERANCE.
SO IT WAS AN EXCITED
UTTERANCE OF COURSE IS
ADMITTED AS AN EXCEPTION TO
HEARSAY TO ADMIT THE
STATEMENT, OR THE -- TRUTH OF
THE MATTER ASSERTED.
IF THE JUROR HOW WAS IT
ARGUED TO THE JURY IN THE
GUILT PHASE.
IT WAS NOT ARGUE TO THE
THE JIRY IN THE GUILT PHASE
AT ALL WAS NOT MENTIONED TO
THEM, AND THE ARGUMENT.
IN THE JURORY.
-- JURORY.
BUT, AS AGAIN AS I SAY IT WAS
AD MITTED WITH A TRUTH OF AS
TO HER WHAT WAS IN HER MIND
AS SHE WAS DYING.
WHICH WOULD BE PROBATIVE
IN THE PENALTY PHASE, OF A --
HAC.
THAT WAS HOW IT WAS USED
YES, MA'AM, NOW AGAIN, THE
TAYLOR CASE SO ITS A FOUR
PART ANALYSIS FOR THIS, THE
FIRST OF WHICH PERTAINS TO
WHAT YOU ARE TALKING ABOUT,
MOVE THELESS THE NEED OF THE
OF THE TESTIMONI,OBVIOUSLY
THE STATE HAD NO NEED OF IT
BECAUSE THEY HAD PRESENTED
HIS ENTIRE DIRECT EXAMINATION
MOST OF THEIR CASE IN WHICH
THE DEFENDANT HAD SAID THAT
HE HAD BROKEN HER NECK, THAT
HE HAD CHOKED HER I CAN'T
REMEMBER THE EXACT -- EXACT
WORDING BUT IT WAS TO THE
EFFECT THAT HE HAD BROKEN HER
NECK HE HAD KILLED HER.
THE COMMENT CAME IN, THAT
HE MADE THE HAGGAN WHICH IS I
DIDN'T KNOW SOMETHING TO THE
EFFECT I DIDN'T KNOW -- TAKES
SO LONG TO BREAK SOMEONE'S
NECK THAT CAME IN --
I BROKE HER NECK CAME IN
ON THE DIRECT EXAMINATION,
RIGHT.
IT WAS COVERED ON THE
CROSS-EXAMINATION.
YOU DON'T SAY THAT SHOULD
HAVE BEEN EXCLUDED.
YOU AGREE THAT THAT --
NO THAT IS THE DEFENDANT'S
STATEMENT I BROKE HER NECK.
RIGHT.
THAT IS WHAT YOU ARE
ARGUING ON THIS THAT IT
ADMISSIBLE BUT YOU FEEL THAT
THE PROBATIVE THAT
PREJUDICIAL VALUE IS
OUTWEIGHED BY THE PROBATIVE
VALUE THAT IS WHAT I THOUGHT
YOU WERE GETTING A THE AT.
NO.
I APOLOGIZE IF I MISLED THE
COURT.
YOUR ARGUMENT IS THAT IT
IS NOT AN EXCITED UTTERANCE?
MY ARGUMENT WITH RESPECT
TO THE THIS STATEMENT RAISED
ON REDIRECT EXAMINATION
RE-REDIRECT EXAMINATION I'M
SORRY THE STATEMENT RAISED ON
RE-REDIRECT EXAMINATION THE
STATE SAID DID HE SAY WHAT
WAS THE LAST THING THAT THE
DEFENDANT SAY WHAT WAS THE
LAST THING SHE SAID?
AND THE DEFENSE OBJECTED TO
THAVMENT THAT IS TO THACHLT
THAT IS THE STATEMENT WHICH
IS BEFORE THIS COURT.
HER STATEMENT.
THAT SHE WANTED TO SEE HER
CHILDREN, AND AGAIN THE STATE
OBVIOUSLY DID NOT NEED THIS
STATEMENT BECAUSE THEY
PRESENTED THEIR CASE WITHOUT
IT.
THERE WAS NO NEED FOR IT, IT
WAS NOT A FACT THAT THEY HAD
TO PROVE.
THE SECOND PART OF THE TAYLOR
ANALYSIS IS DOES IT SAY DOES
IT TENDENCY TO SUGGEST AND
THE WORDS "TENDENCIOII TO
SUGGEST EMOTIONAL BASIS FOR
IMPROPER EMOTIONAL BASIS FOR
THE VERDICT.
OBVIOUSLY IT DOES.
YOU TELL SOMEBODY THAT SHE
WANTS TO SEE HER CHILDREN SHE
WAS BEING STRANGLED TO DEATH.
IT IS OBVIOUSLY HAS A VERY
STRONG EMOTIONAL IMPACT.
SNOOM -- WELL INTO REBUTTAL
IF YOU --
OKAY I WILL WRAP THIS UP.
YOUR CHOICE.
I UNDERSTAND THAT I
APPRECIATE THAT.
THE THIRD PART OF THE
ANALYSIS IS THE CHAIN OF
INFERENS, TO BE REACHED FROM
THE STATEMENT TO THE MATERIAL
FACT, AND HERE THERE REALLY
IS NO MATERIAL FACT.
BECAUSE HER STATE OF MIND IS
NOT A MATERIAL FACT IN ISSUE
IN THE CASE, AND IN ANY EVENT
THIS STATE PRESENTS THIS AS A
MENTAL -- HYPOTHESIZED MENTAL
PROCESS ON HER PART, AND THE
LAST PART OF THE ANALYSIS IS
THE EFFECTIVENESS OF LIMITING
INSTRUCTION THERE WAS NO
LIMITING INSTRUCTION BECAUSE
THE STATEMENT WAS AD MITTED
FOR THE TRUTH OF THE MATTER
ASSERTED.
SO WE WOULD ASK THE COURT TO
REVERSE THE CONVICTION AND
CITIZEN TEN IN THIS CASE --
AND SENTENCE IN THIS CASE,
THANK YOU.
MISS CAMPBELL.
GOOD MORNING MAY IT PLEASE
THE COURT LESLIE CAMPBELL
ATTORNEY GENERAL'S OFFICE ON
BEHALF OF THE STATE TIE WILL
START WITH TWO FIRST.
I THINK THAT IS WHERE WE
ENDED.
IN THIS CASE, IT -- WHILE THE
TRIAL COURT FOUND THAT IT WAS
HEARSAY IT REALLY IS NOT
HEARSAY IT WAS NOT THE
STATEMENT OF TAUNY WAS NOT
COMING IN FOR THE TRUTH OF
THE MATTER ASSERTED.
WHAT IT WAS COMING IN TO SHOW
WAS THAT MR. JOHNSON HAD
HEARD TAMMY SAID SHE WANTED
TO SEE HER CHILDREN AS SHE IS
BEING CHOKED, AND --
MISS CAMPBELL.
YES?
OKAY WHICH IS WHAT I ASKED
MR. CALLED BELL -- CALDWELL
IS THAT AN ISSUE YOU RAISED
IN YOUR BRIEF THAT THIS IS
NOT HEARSAY BUT THAT IT WAS
COMING IN FOR JOHNSON'S STATE
OF MIND?
WE SAY -- THE -- THE
PROSECUTOR SAID IT WAS -- IT
WAS -- NOT HEARSAY.
AND I -- AT TRIAL.
AT TRIAL YES.
I THOUGHT THAT WAS BECAUSE
THE PROSECUTOR SAID WELL, HE
IS SAYING IT, AND THEN THEY
SAID YEAH BUT HE IS SAYING
WHAT SHE SAID SO IT IS REALLY
DOUBLE HEARSAY DID THEY EVER
ARGUE THAT IT WAS PROBATIVE
WHICH IS WHAT I WOULD THINK
WOULD BE AN ARGUMENT, I JUST
WANT TO MAKE SURE I
UNDERSTAND WHICH -- THAT IT
WAS COMING IN TO PROVE WHAT
JOHNSON THOUGHT NOT WHAT THE
VICTIM THOUGHT WAS HAPPENING
TO HER.
I THINK THE INITIAL
COMMENT THAT IT WAS NOT
HEARSAY COVERED THAT,
HOWEVER.
--
DO YOU THAT ARING IN YOUR
BELIEF NOO NO I DID NOT.
-- I MISSED THAT.
HOWEVER, THE INITIAL ARGUMENT
THAT IT WAS NOT HEARSAY I
THINK COVERS IT.
YOU LIKE MY -- HYPOTHESIS
HERE IT IS NOT HEARSAY THAT
IT ACTUALLY WAS COMING INTO
SHOW JOHNSON'S STATE OF MIND.
ABSOLUTELY.
BUT THAT WAS NOT ARGUED
THAT WASN'T BE AIS THE TRIAL
JUDGE ADMITTED IT.
NO WHEN TRIAL JUDGE SAID
YOU KNOW, MORE OR LESS FORCED
THE ISSUE THAT IT COULD BE
DOUBLE HEARSAY THEN THE
COMMENT THEN THE OTHER
ARGUMENT IS THAT IT WAS --
EXCITED UTTERANCE.
WELL THIS IS PRETTY ODD TO
ME IN THIS TODAY I ENEMY I
WOULD ACCEPT THAT IF IT WAS
GOING TO BE COMING IN TO SO
SHOW SHAUN JON'S STATE OF
MIND IN THE GUILT FACE THAT
THAT WHO IS IT SHOULD HAVE
BEEN ARGUED.
IT COMES IN, IN
RE-RE-RE-RE-DIRECT, AND NOT
EVEN ARGUED IN CLOSING
ARGUMENT IN THE GUILT PHASE,
WHAT A WAS IT -- YOU KNOW,
PRIVY -- YOU WEREN'T THERE.
WHAT IS STATE THINKING IF IT
WAS AN IMPORTANT PART OF
THEIR CASE, WHAT ARE THEY
DOING BRINGING IT IN A
RE-RE-REDIRECT AND WHY THEN
DON'T THEY ARGUE IT IN THE
CLOSING ARGUMENT?
IT SEEMS LIKE IT IS ALMOST
LIKE THIS GRATUITOUS THING IS
JUST THROWN OUT THERE, WHICH
HAS PRETTY EMOTIONAL
COMPONENT TO IT AND THEN IT
IS JUST LEFT THERE IT IS NOT
EVEN USED IN ANY WAY.
I COULD SPECULATE THAT --
NO, I DON'T WANT YOU TO
SPEK A LITTLE YOU WERE A --
WANT -- WHAT DOES THE RECORD
SHOW AS TO WHAT WHY IT WOULD
BE ELICITED ON A THE FOURTH
REDIRECT?
AND THEN NOT USED IN ANY WAY
TO SHOW ANY ELEMENT OF
MR. JOHNSON'S GULTLICHLTT IN
THE LGUILT PHASE.
OTHER THAN OVERSIGHT THE
PROSECUTOR MAYBE FOUND THAT
ADDITIONAL STATEMENT, OR FELT
THAT THE THAT HE OR SHE HAD
ENOUGH INFORMATION TO GO
FORWARD WITH -- WITHOUT THAT
PARTICULAR.
WAS THEREFORE OBJECTION
MADE AT THE TIME THAT WHAT
WAS BEING BROUGHT OUT ON
RE-RE-REDIRECT WAS OUTSIDE
THE SCOPE OF KRORS THE
ORIGINAL DIRECT.
YES, THAT OBJECTION WAS
MADE HOWEVER THE TRIAL COURT
SAID -- WELL THE STAY --
STATE COULD AT THAT POINT,
TAKE THE WITNESS OFF THE
STAND AND BRING THE WITNESS
BACK.
SO THEY DEALT WITH IT AS A
BASIS OF REOPENING THE
ORIGINAL DIRECT SNOOVMENT
YES.
-- YES.
AND THEN WAS DEFENDANT
ALLOWED TO CROSS?
OR DID -- DID THE
DEFENDANT CROSS ON THAT?
WELL, IT WASN'T REALLY --
IT -- IT CAME IN AS
RE-REDIRECT IT WASN'T IT
WASN'T
RIGHT.
-- AN ACTUALLY TAKE
HERROFF THE STAND YOU KNOW.
I UNDERSTAND THAT, THEN
WAS THERE FURTHER
CROSS-EXAMINATION?
I BELIEVE THIS WAS FURTHER
CROSS-EXAMINATION OR AT LEAST
THERE WAS AN OPPORTUNITY I
BELIEVE AFTER THAT.
HOW WOULD YOU -- IF YOU
WERE US AFFIRMING THIS CASE,
HOW WOULD YOU WRITE THE
PRINCIPALS OF LAW --
PRINCIPLES OF LAW THAT WOULD
EMERGE, IN OTHER WORDS, WE
END UP SAYING DO WE SAY HER
STATEMENT WASN'T ADMITTED AS
HEARSAY WHEN I ENEMY, WAS NOT
HEARSAY BECAUSE IT WASN'T
ADMITTED FOR THE TRUTH WHEN
WE KNOW IT WAS AD MITTED FOR
THE TRUTH.
AND WHEN WE PERFORM AND LOOK
AT THE ANALYSIS OF WHETHER
THE PROBATIVE VALUE WITHOUT!!$$!!!!!!!!!!!!
WITHOUTWISE PREJUDICE WHAT DO
WE SAY STATE WANTED IT FOR
I'M A LITTLE CONCERNED ABOUT
YOU KNOWY APPRECIATE YOUR
CANDOR,I THINK THAT I COULD
MAKE ABE PESHL GOOD CASE FOR
WHY -- PESHL GOOD CASE WHY
SHOULD SHOULD COME IN
THINKING IN TERMS WHAT RUE --
ROOM OF LAW IS THAT IT DOES
SEEM THAT -- RULE OF LAW
SEEMS AN AFTER THOUGHT MAYBE
THEY COULD HAVE RECALLED THE
WITNESS IF THEY WANTED THE
STATEMENT IN, BUT THEN THEY
DON'T USE IT FOR ANYTHING,
AND THAT IS NOT ALONE A
PROBLEM, BUT WHEN YOU ARE
TRYING TO DO WHETHER
PROBATIVE VALUE OUTWEIGHED BY
ANY PREJUDICIAL IMPACT YOU'VE
GOT KNOW WITH THE PROBATIVE
VALUE IS THAT THE STATED A
ADVANCED AT THE TIME THAT IT
WAS THOUGHT BE ADMITTED.
I THINK THAT THIS COURT
COULD MAKE A RULING SAYING
THAT IT IS NOT HEARSAY THAT
THERE ARE MULTIPLE GROUNDS
FOR ADMISSION OF THIS TYPE OF
EVIDENCE, AND THAT WHILE THE
TRIAL COURT MADE INITIAL
FINDING THAT IT WAS HEARSAY
IT COMES IN UNDER AN EXCITED
UTTERANCE WE HAVE A TIPSY
COACHMAN ROLL AND THIS COURT
CAN FIND THAT THERE ARE OTHER
GROUNDS FOR ADMISSION AND AS
FAR AS THE PROBATIVE VERSUS
THE PREJUDICIAL, IT DOES
SPEAK TO THE SEXUAL BATTERY
IT SPEAKS TO THE
PREMEDITATION, IT SPEAKS TO
MR. JOHNSON'S LACK OF
ACCIDENT, CLEARLY, THAT IF
THIS IS BEING SAID AND
MR. JOHNSON'S HEARING THIS,
AT THE TIME THAT HE IS
SUPPOSEDLY HAVING CONSENSUAL
SEX WITH THIS VICTIM, AND
THEN SHE EVENTUALLY DIES IF
HE HAS HIS HANDS AROUND HER
THROAT, IT GOES TO BOTH OF
THOSE CHARGED EVENTS, THE
PREMEDITATED MURDER, WHETHER
IT BE UNDER A PREMEDITATION
STANDARD OR UNDER FELONY
MURDER STANDARD AND IT IS
ALSO SPEAKS TO SEXUAL
BATTERY.
SO I THINK THE $$STATE'S
POSSIBLE OVERSIGHT FOR NOT
ACTUALLY BRINGING IT UP IN
CLOSING ARGUMENT WHEN THERE
WERE MANY OTHER FACTORS THAT
WERE BROUGHT UP ADDRESSED IN
CLOSING ARGUMENT SHOULD NOT
BE HELD AGAINST THE STATE.
THERE WAS SUFFICIENT EVIDENCE
TO PROVE THIS CASE WITHOUT
THIS PARTICULAR PIECE OF
EVIDENCE HOWEVER IT WAS
BEFORE THE JURY, AND THE JURY
SERM COULD HAVE TAKEN IT INTO
CONSIDERATION,IN MAKING THOSE
FINDINGS!!$$!!!!!!!!!!!!!!
FINDINGS, BOTH PREMEDITATION
FELONY MURDERER AND SEXUAL
BATTERY.
THERE ARE NO ON THE HE
OTHER QUESTIONS I WILL MOVE
ON TO ISSUE ONE.
INNISH ONE WE ARE MAKING A
PRESERVATION ARGUMENT WHILE
WE RECOGNIZE THE TRIAL COURT
HAS MADE CERTAIN STATEMENTS
-- MADE A STATEMENT THAT THIS
ISSUE WAS -- FORTE THAT,S
THERE WAS STANDING OBJECTION,
UNDER JOINER THAT IS NOT THE
BEST POSSIBLE POLICY TO HAVE.
BECAUSE --
I'M -- I CAN'T SEE PUTTING
THE ANY COUNSEL IN A POSITION
WHERE A TRIAL JUDGE SAYS YOU
HAVE A STAND OAK -- OBJECTION
WHICH ESSENTIALLY MEANS DOUNT
NEED TO OBJECT ANY FURTHER
THEN LATER SAYING, YOU HAD TO
OBJECT ANYWAY.
HAS ANY COURT EVERY SAID THAT
WHEN A JUDGE GRANTS SOMEBODY
A STANDING OBJECTION THAT
THERE WAS A FAILURE TO
PRESERVE WHERE THE COUNSEL
DIDN'T OBJECT ANYWAY.
LET MES ANSWER THAT IN TWO
I WAS, NUMBER ONE, WHILE HE
SAID A SEASONED STAND OK
JEBBINGION THE COURT STAYED
-- SAID STANDING OBJECTION
COURT DIDN'T SAY DID NOT HAVE
TO PRESERVE THIS LATER ON YOU
DIDN'T HAVE TO RERAISE IT IN
OBJECT WHEN THE PANEL IS
SWORN.
WHEN CONTEXT IN THIS
CONTEXT, WHALES COULD IT
MEWHAT ELSE COULD IT ENEMY --
MEAN COULDN'T ENEMY STAND OK
EJECTION TO GOOD CAUSE
CHALLENGE IT WILL HAS TO
ENEMY OF YOU STAND OK JEBBING
STHOUN THIS PARTICULAR JUROR?
PARTICULAR JUROR?
I UNDERSTAND THE COURT'S
POSITION.
AND, MAYBE IN THIS
PARTICULAR CASE, GIVEN THE
STATEMENTS THAT WERE SAID,
THIS COURT, MIGHT FIND THAT
IT IS PRESERVED.
HOWEVER, UNDER JOYNER AND,
THE TRIAL COURT AND DEFENSE
COUNSEL SHOULD HAVE BEEN
WELL AWARE OF JOYNER, THERE
IS NECESSITY OF OBJECTING TO
THE JURORS, OR RERAISING ALL
OF THE OBJECTS THAT HAD GONE
BEFORE IN ORDER TO MAKE SURE
THAT THE DEFENSE COUNSEL
STILL HAD THOSE OBJECTIONS
AND WAS NOT, HIS OPINION
WASN'T CHANGED, GIVEN THE
NEW COMPOSITION OF THE
PANEL.
AS JOYNER IS CONCERNED WITH,
YOU DON'T WANT THE DEFENSE
OR, WHO IS EVER MAKING THESE
OBJECTIONS TO, YOU KNOW, A,
ERROR IN HIS POCKET, SHOULD
HE HAVE CHANGED HIS MIND
GONE THROUGH THE ENTIRE JURY
SELECTION PROCESS?
MAYBE THAT WOULD LEAD US
TO CONCLUDE A TRIAL JUDGE
SHOULD NOT GRANT STANDING
OBJECTIONS ONCE A TRIAL
JUDGE DOES --
AS I SAY MAYBE NRT THIS
CASE, GIVEN THE WAY THAT IT
HAS BEEN PRESENTED THIS
COULD BE FOUND PRESERVED BY
THIS COURT.
BUT AT MINIMUM I FEEL THIS
COURT SHOULD MAKE A
STATEMENT, SAYING STANDING
OBJECTIONS, ARE NOT, THE
APPROPRIATE THING, TO DO,
DURING, A, JURY SELECTION.
BECAUSE, IT COMPLETELY AND
TOTALLY EVOICE RATES JOYNER.
IT I WAS ABOUT THE DEFENSE,
OR GIVES WHOEVER IS MAKING
THE OBJECTION, TO JURORS A
SECOND BITE THE AT APPLE.
THAT'S CERTAINLY UNFAIR AND,
SHOULDN'T CONTINUE.
IF THE, THE DEFENSE WANTS TO,
CONTINUE TO OBJECT, TO THE
JUROR THAT WAS, PREEMTORI
STRICKEN FOR CAUSE THAT
OBJECTION CAN BE RAISED
AGAIN, DURING THE FINAL
SELECTION PROCESS JUST
BEFORE THE JUR A'S SWORN.
TO ALLOW A STANDING
OBJECTION TO OCCUR AFTER THE,
PANEL IS COMPLETELY
DIFFERENT, IT PUTS THE, PUTS
THE WHOLE CASE IN A
DIFFERENT POSTURE.
I HAVE TWO QUESTIONS ON
THAT.
ONE I ASKED IN THE PRIOR
CASE, EVEN THOUGH WE'VE GOT
THIS BLANKET RULE OR HAVE
HAD IT, THAT YOU NEED TO,
REOBJECT AT THE TIME THAT
THE JURY IS ACCEPTED WHEN
YOU'RE REALLY FEELING HERE
THE JUROR WAS STRICKEN FOR
CAUSE, SHE'S GONE.
SO THE HARM IS ALREADY TAKEN
PLACE.
THE RATIONALE OF SAYING THAT
YOU NEED TO OBJECT AGAIN, I
ALWAYS THOUGHT WAS, LIKE ANY
OTHER OBJECTION, TO GIVE THE
TRIAL COURT A CHANCE TO, HE
RELOOK AT, THAT, OBJECTION.
HOW IS THE PURPOSE THAT WE,
HAVE PREVIOUSLY STATED, OR,
HAVING TO RENEW YOUR
OBJECTION BEFORE A JURY IS
ACCEPTED, HOW IS IT SERVED
WHEN YOU'RE DEALING WITH,
SOMETHING LIKE THIS WHERE
THE JUROR IS ALREADY
STRICKEN?
WELL, IT SERVES TWO
PURPOSES.
ONE, THE, AS I WAS SAYING
THE DEFENSE AND IT'S
MENTIONED IN JOYNER OR THE
PERSON MAKING THE OBJECTION,
MIGHT HAVE CHANGED HIS MIND
AND IS NOW COMFORTABLE WITH
THE JURY.
SO, HE MAY HAVE, SILENTLY
WITHDRAWN THE OBJECTION,
UNLESS HE, HE RERAISES IT
THIS COURT WOULD NEVER KNOW.
OKAY.
BUT ON THAT, THE, LET'S GO
TO THE SECOND AND YOUR
SECOND REASON IS?
RIGHT.
THE SECOND REASON IS IF THE
TRIAL COURTS LOOKS AT IT
AGAIN AT THE TIME OF THE
JURY SELECTION, WE CERTAINLY
WOULD SAVE A WHOLE HECK OF A
LOT OF TIME AND JUDICIAL
RESOURCES, IF, THE COURT AT
THAT TIME, SAID OH, YES THAT
WAS A MISTAKE AND LET'S
START OVER.
LET'S CALL A MISTRIAL RIGHT
NOW AND RE, AND REDO THE
JURY SELECTION.
YOU WOULDN'T HAVE THE WHOLE
TRIAL.
YOU WOULDN'T HAVE THE WHOLE
APPELLATE PROCESS.
YOU THINK THAT -- I
ALWAYS THOUGHT THE PURPOSE
WAS LET THE JUDGE LOOK AGAIN
AT THE JURY PANEL, MAYBE
GIVE AN ADDITIONAL PREEMTORI
WHERE IT CAN BE CORRECTED.
THAT'S WHERE IN THIS CASE,
THE FACT THAT HE WAS,
DISSATISFIED WITH THE, JUROR
BEING STRICKEN FOR CAUSE, HE
GOES, I'VE GOT, YOU KNOW,
I'LL GRANT YOU, A CONTINUING
OBJECTION.
WHAT ELSE INTO THAT
SITUATION WOULD HE NEED TO
SAY TO THE, JUDGE?
DID YOUR CONTINUING
OBJECTION STOP NOW AT THE
TIME THAT, WE'RE, INCLUDING
WITH JURY SELECTION?
I GO BACK TO JOYNER WHICH
REQUIRES THE ADDITIONAL
OBJECTION.
AND YES MAYBE IN THIS CASE
THE COURT MISLED DEFENSE
COUNSEL.
HOWEVER, HE DIDN'T, HE
DIDN'T SAY THAT IT WAS
PRESERVED FOR APPEAL.
THE TRIAL COURT DIDN'T SAY
THAT ISSUE WAS PRESERVED FOR
APPEAL AS HE DID HE FOR THE
OTHER TWO JURORS WHICH CAME
AFTERWARDS.
I KNOW YOU AS A GOOD,
ASSISTANT ATTORNEY GENERAL,
WE DON'T WANT, A SITUATION
WHERE SOMEONE, MISLEADS,
TRIAL COUNSEL AND THEN SAY
IT'S GOTCHA.
DO WE REALLY WANT THAT IN
THIS CASE?
NO WE DO NOT.
THAT'S MY POINT, MAYBE, YOU
KNOW, WE'VE RAISED THE
PRESERVATION ISSUE.
WE'VE POINTED OUT WHERE
THERE ARE DIFFERENCES IN THE
WAY THE STANDING OBJECTION
AND THIS IS PRESERVED FOR
APPEAL.
HAD THE TRIAL COURT WORDED
IT DIFFERENTLY.
AND, THE THRUST OF THIS,
REALLY, IS THAT, THE
STANDING OBJECTIONS, SHOULD
NOT BE GRANTED IN VOIR DIRE.
MY OTHER QUESTION, THE
LEGISLATURE, I THINK IT WAS
LAST SESSION, SAID, YOU
DON'T NEED TO, IF YOU'VE
PRESERVED IT ONCE YOU DON'T
NEED TO, RENEW IT, HOW WILL,
DO YOU HAVE ANY, THOUGHTS AS
TO HOW, FOR SINCE YOU'RE
ASKING US TO DO SOMETHING
FOR THE FUTURE HOW THAT
ADDITION BY THE LEGISLATURE,
REALLY WOULD CHANGE, FOR THE
FUTURE, JOYNER PRINCIPLE?
IT'S MY UNDERSTANDING
THAT WAS GOING MORE TOWARDS
THE SUPPRESSION ISSUE WHERE
THIS COURT , HAD SAID YOU
HAVE A SUPPRESSION HEARING
AND YOU HAVE TO RERAISE IT
OR IF YOU HAVE AN OBJECTION
TO CERTAIN EVIDENCE COMING
IN YOU NEED TO RERAISE IT
BEFORE IT COMES IN.
THAT IS, I WOULD THINK A
LITTLE DIFFERENT.
AND, IT GOES BACK TO THE
JOYNER ISSUE WHICH IS, THE,
COMPOSITION OF THE JURY, MAY
HAVE CHANGED TO SUCH A POINT,
THAT THE, DEFENSE IS NOW,
HAPPY WITH THE JURY AS, AS
NOW CHOSEN.
SEE I THINK THAT THE
STATUTE IS MUCH BROADER THAN
JUST DEALING WITH
SUPPRESSION.
BUT WE'LL NEED TO LOOK AT
THAT IN LIGHT -- YOU DON'T
HAVE A VIEW THEN AT THIS
POINT?
I'M SAYING IT HAS MORE TO
DO WITH EVIDENCE, COMING IN,
VERSUS, JURY SELECTION.
THAT'S MY UNDERSTANDING.
YOU KNOW, I COULD STAND TO
BE CORRECTED.
WITH REGARD TO THE ACTUAL
MERITS, MS. MONFFTE WAS QIF
CALL ALL THE WAY THROUGH.
HER FIRST STATEMENT, ON THIS
ISSUE CAME IN RESPONSE TO,
PROSECUTOR ASKED SEVERAL
QUESTIONS AND HAD HEARD FROM,
JUROR ATKINS.
AND, IMMEDIATELY AFTER,
JUROR ATKINS TOLD THE COURT
HE COULD NOT VOTE FOR THE
DEATH PENALTY NO MATTER WHAT
THE ACTS ARE NO MATTER WHAT
THE JUDGE TELLS YOU THE
FACTS ARE, IN RESPONSE TO
THIS STATE'S QUESTION,
ANYONE ELSE FEEL THAT WAY?
SHE WAS THE FIRST, FIRST
PERSON QUESTIONED.
SO, FROM THE OUTSET SHE WAS
TOTALLY AGAINST THE DEATH
PENALTY AT THAT POINT.
AND THEN, IT GOES ON FROM
THERE AND SHE'S EQUIVOCAL AS
TO WHETHER OR NOT SHE WANTS
TO IMPOSE IT.
SHE CAN'T GIVE A YES OR NO
ANSWER.
WHEN THE DEFENSE TRIED TO
REHABILITATE THIS JUROR, SHE,
SHE WAS ASKED WHETHER OR NOT
SHE COULD HE WITH THE
AGGRAVATE TORES AND WEIGH
THE MITIGATE TORES AND VOTE
FOR LIFE.
THAT'S COMPLETELY DIFFERENT
QUESTION WHETHER SHE FOLLOW
THE LAW AND EITHER VOTE FOR
LIVE LIFE OR DEATH.
IF SHE IS MERELY VOTING FOR
LIFE THAT PLAYS INTO HER
INITIAL COMMENT SHE WOULD
NOT VOTE, SHE COULDN'T VOTE
FOR THE DEATH PENALTY, SHE
WOULDN'T IMPOSE THAT.
WHILE AT THE END, SHE DOES
SAY SHE COULD FOLLOW THE LAW
AS JUSTICE QUINTERO POINTED
OUT IT WASN'T SOMETHING SHE
WANTED TO DO.
IT WASN'T, DEATH PENALTY WAS
NOT A DECISION WE SHE WOULD
CAN'T TO MAKE.
IF YOU LOOK AT TOTALITY,
THERE IS REASONABLE DOUBT AS
TO WHETHER OR NOT THIS JUROR,
COULD SUBORDINATE HER
FEELINGS ON THE ISSUE AND,
FOLLOW THE LAW AND THAT'S,
THAT'S THE STANDARD THAT WE
HAVE TO FOLLOW UNDER ALT.
AND, UNLESS THERE ARE OTHER
QUESTIONS I ASK THAT THIS
COURT, -- ONE OTHER ISSUE.
ON ALT,ALITY WAS DECIDED
AFTER, RING AND APRENDI.
IN ALT SHOULD YOU DECIDE TO
REVERSE ON THE JUROR ISSUE
IT SHOULD ONLY GO DOWN FOR A
NEW PENALTY PHASE AS WAS
DECIDED IN ALT.
ON THAT I ASK THE COURT
AFFIRM THE CONVICTION AND
SENTENCE AND, UNLESS THERE
ARE ANY OTHER QUESTIONS?
THANK YOU VERY MUCH.
THANK YOU.
MR. CALDWELL?
YES.
AS TO THE, EVIDENTIARY ISSUE,
STATE ASKS THE COURT TO
REVIEW A DECISION THAT THE
TRIAL JUDGE NEVER MADE.
THE, DEFENSE ATTORNEY ARGUED
TO THE TRIAL JUDGE THAT THIS
STATEMENT HAD FROM PROBATIVE
VALUE.
IT GOES, IT SHOWS NOTHING
THAT THE DEFENDANT DID.
IT SHOWS, ADDS NOTHING TO
THE FACTS OF THE CASE, TO
THE CAUSE OF DEATH, THE
MANNER IN WHICH THE DEFENSE
WAS INFLICTED.
THE JUDGE'S RESPONSE TO THAT
WAS, THE STATEMENT WAS
ADMISSIBLE FOR THE TRUTH OF
THE MATTER ASSERTED.
THE JUDGE SAID, CERTAINLY
WOULD YIELD AN INFERENCE OF
PREMEDITATION, IF SHE'S
MAKING STATEMENTS WHICH
WOULD INDICATE THAT SHE
THOUGHT, SO THE JUDGE SAYS
THIS IS PROBATIVE BECAUSE
IT'S ADMITTED TO SHOW SHE
THOUGHT --
DON'T --.
SHE IS MAKING --
IN OUR CASE LAW, SUCH
THAT THE JUDGE, THE DECISION
THE JUDGE WAS MADE, WAS TO
ADMIT THE EVIDENCE.
CORRECT?
I, AS TO THE WEIGHING OF
THE, PROBATIVE VERSUS
PREJUDICIAL VALUE YOU DEFER
TO THE JUDGE.
BUT THE JUDGE SAID THERE WAS
EXTREMELY DAMAGING EVIDENCE
AS PART OF HIS ANALYSIS.
HE SAID IT IS BEING ADMITTED
TO SHOW THE TRUTH.
THAT'S 9 PROBATIVE VALUE.
YOUR ARGUMENT HERE IS A
403 ARGUMENT AS TOE POSED TO
WHETHER IT'S ADMISSIBLE OR
NOT ADMISSIBLE?
THE JUDGE WAS MAKING 403
ANALYSIS AT THIS POINT.
WHICH IS ADMISSIBILITY.
THE DEFENSE ATTORNEY SAID
THE PREJUDICE OUTWEIGHS THE
PROBATIVE VALUE.
IT HAS NO PROBATIVE VALUE.
THE JUDGE SAID IT HAS
PROBATIVE VALUE TO SHOW HER
MENTAL PROCESSES.
THE JUDGE SAID IT'S
EXTREMELY DAMAGING.
I THOUGHT YOU JUST SAID
THE LEAD-IN TO THAT AS YOU
READ IT ESTABLISHING THE
PREMEDITATION WHICH IS
EXACTLY WHAT JUST AT THIS
PARIENTE ASKED HER.
THAT IS PREMEDITATION, IF,
IF, SHE IS MAKING, THIS IS
WHAT THE JUDGE SAID, WOULD
YIELD AN INFERENCE OF
PREMEDITATION, IF, SHE'S
MAKING STATEMENTS WHICH
WOULD INDICATE SHE THOUGHT
SHE WAS DYING.
AND SHE'S MAKING THIS
REQUEST.
SO THE JUDGE --
DOESN'T THAT GO TO
CONSENSUAL -- I MEAN THAT'S
THE WHOLE PICTURE.
CONSENSUAL ENCOUNTER VERSUS
THIS IS NOT JUST AN
ACCIDENT.
THIS IS WHAT IS HAPPENING.
I'M A LITTLE TROUBLED BY
THAT.
THE JUDGE IS MAKING A
DELICATE BALANCING.
THESE THINGS ARE ALWAYS --
DEFER TO WHAT THE COURT SAYS
AND WHAT THE JUDGE RULES.
THE JUDGE SAYS, THIS IS
ADMITTED TO SHOW HER MENTAL
PROCESSES.
THEN HE SAYS, THIS IS
EXTREMELY DAMAGING BUT I'M
GOING TO ADMIT IT BECAUSE OF
THAT PROBATIVE VALUE.
BUT MR. CALDWELL, LET'S
GO BACK TO THE FACT, AND I
DID REVIEW WHAT THE TRIAL
JUDGE SAID.
WHETHER THE TRIAL JUDGE EARER
ROHN NEWSLY, TO MEER ROHN
NEWSLY SAID IT GOES TO HER
STATE OF MIND BECAUSE IN THE
GUILT PHASE IT'S HIS STATE
OF MIND THAT IS GOING TO
WHAT HE THOUGHT ABOUT WHAT
SHE WAS DOING AND WHAT
IMPORTANTLY WHAT THE JUDGE
SAYS IT GOES TO
PREMEDITATION AND ABSENCE OF
MISTAKE.
NOW THAT MEANS, THAT
ALTHOUGH HE MAY BE SAYING IT
IN A CERTAIN WAY, SAYING
IT'S GOING TO WHAT, HE, THAT,
HE HEARD, HER SAY THIS.
SHE COULDN'T HAVE, BEEN,
ENGAGED IN EITHER CONSENSUAL
SEX FOR THE SEXUAL BATTERY
AND HE THOUGHT, THAT, THIS
IS, WHAT WAS GOING ON.
THAT IS THAT SHE WAS BEGGING
TO, YOU KNOW, SEE HER
CHILDREN BEFORE SHE DIED.
AND IT GOES TO PREMEDITATION
AND ABSENCE OF MISTAKE,
WHICH IS WHAT THE JUDGE
RULED.
THE STATE HAD ALREADY PUT
FORWARD ITS EVIDENCE OF
PREMEDITATION.
THE DEFENSE ATTORNEY SAYS,
THE JUDGE, THIS HAS NO
PROBATIVE VALUE BECAUSE IT
DOESN'T ESTABLISH ANYTHING
THAT HE DID, ANY OF THE
FACTS OF THE CASE.
MEANING THE MATERIAL FACTS
OF THE CASE.
BUT THE JUDGE SAYS, IT'S,
PROBATIVE OR PREMEDITATION,
IF IT ESTABLISHES HER STATE
OF MIND.
WHICH IS NOT -- YOU'RE
TRYING TO SUBSTITUTE YOUR
JUDGMENT FOR THE JUDGE ON A
UNIQUELY JUDGE-BASED,
JUDGE-FOCUSED RULING WHICH
IS THE PREJUDICE VERSUS THE
PROBATIVE VALUE.
BECAUSE THE JUDGE'S
PREJUDICE VERSUS PROBATIVE
VALUE MIGHT HAVE BEEN
TOTALLY DIFFERENT.
THE JUDGE COULD HAVE GIVEN
THE JURY LIMITING
INSTRUCTION IF THIS WAS NOT
BEING ADMITTED TO PROVE HER
THOUGHT PROCESS.
THE DEFENSE COULD HAVE ASKED
FOR A LIMITING INSTRUCTION
SAID, THIS, WHAT WAS
ACTUALLY IN HER MIND IS
IRRELEVANT CONSIDERATION.
SOME SORT OF LIMITING
INSTRUCTION.
THAT IS NOT THE CASE.
THE STATE WAS ADMITTING IT
AS A EXCITED UTTERANCE TO
SHOW HER STATE OF MIND.
THE JUDGE SAID IT WAS
PROBATIVE FOR THAT PURPOSE
IF IT ESTABLISHES HER STATE
OF MIND.
THAT'S HOW THE JUDGE
UNDERWENT THIS PROCESS.
HE GUESS WHAT I'M ASKING
YOU AS A, EXPERIENCED LAWYER
IS, UNDERSTAND WHAT THE
JUDGE SAID.
IF THE JUDGE SAID I'M
ALLOWING IT IF THEY FOR
PREMEDITATION AND ABSENCE OF
MISTAKE, HOW DOES THE,
VICTIM'S STATE OF MIND,
ESTABLISH PREMEDITATION IN
ABSENCE OF MISTAKE?
I AGREE, IT DOES NOT.
THE STATE OF MIND DOES NOT
ESTABLISH PREMEDITATION.
DID THE DEFENSE LAWYER
ARGUE THAT?
YEAH THE DEFENSE
ATTORNEY --
THEREFORE YOU WOULD THINK
THAT THE YOUR ARGUMENT WOULD
BE, IT'S NOT PROBATIVE OF
ANYTHING BECAUSE HER STATE
OF MIND IS NOT PROBATIVE
OF --
THAT'S WHAT THE DEFENSE
ATTORNEY SAID.
HE SAID, THE DEFENSE
ATTORNEY SAID --
THAT'S NOT WHAT YOU'RE
ARGUMENT IS HERE.
I ALSO ARGUE IT'S NOT
PROBATIVE AT ALL.
ONCE YOU'RE GETTING IN
403 YOU'RE ASSUMING IT HAS
SOME PROBATIVE VALUE.
I AGREE WITH THAT.
BUT THE DEFENSE ATTORNEY
SAID IT HAD NO PROBATIVE
VALUE.
IN MY BRIEF I ARGUE IT HAS
NO PROBATIVE VALUE.
THE STATE SAYS, WELL, IT HAS
PROBATIVE VALUE BECAUSE SHE
WENT THROUGH THIS MENTAL
PROCESS WHERE SHE'S THINKING
HE IS GOING TO KILL ME,
THEREFORE I HAVE TO SAY
THIS, WHY IS WHY IT'S NOT
ADMISSIBLE AS AN EXCITED
UTTERANCE.
THAT IS SOMETHING IN THE
BRIEFS WHICH WE HAVEN'T
TALKED ABOUT TODAY.
THE DEFENSE ATTORNEY
SPECIFICALLY SAYS IT HAS NO
PROBATIVE VALUE.
HE SAYS, PAGES 16935.
SO, AND, THAT WAS THE RULING
THAT THE JUDGE -- 1695.
THAT WAS THE RULING THE
JUDGE MADE WHICH YOU ARE TO
CONSIDER.
THE JUDGE UNDERTOOK THIS
ANALYSIS BASED ON HIS
UNDERSTANDING THE STATE WAS
ADMITTING THIS TO PROVE HER
MENTAL PROCESSES WHICH IS,
NOT, NOT AT ALL, UNDER THE
FOUR PART ANALYSIS OF TAYLOR,
A, COUNTS AGAINST THE STATE
ON EACH OF THE FOUR POINTS
OF ANALYSIS.
SO BASED UPON THAT WE'RE
ASKING THE COURT TO REVERSE
THE CONVICTION AND SENTENCE
IN THIS CASE.
THANK YOU.
THANK YOU BOTH FOR YOUR
ARGUMENTS.
WE'LL TAKE THE CASE UNDER
CONSIDERATION.
THE COURT WILL STAND IN
RECESS UNTIL 9:00 TOMORROW
MORNING.
PLEASE RISE.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,