THE COURT WILL H EAR THE L AST CASE OF THI S MORNING, WHI CH I S GUZMAN VERSUS STATE OF F LORI DA . ARE T HE P AR TI ES R EA DY? MR. PINKARD, YOU M AY P ROCEED .

GOOD MORNING. I'M ERIC PIN KARD O N B EHAL F OF MR. GUZMAN FROM CCRC.

CHIEF JUSTICE: AND WHO IS WITH YOU AT COUNSEL TABLE ?

THAT'S M R. DAVID G IM ME R WITH OUR OFFICE , A LS O.

CHIEF JUSTICE: MR. P IN KARD , WE A LL OTTE D YOU 2 0 M INUTES A ND 20 MINUTES. THIS IS SO WE ARE CLEAR T HE COURT REMANDED TO THE TRI AL COURT W HO HEARD T HE C AS E A S A NONJURY TRIAL FOR ONE S PECI FI C PURPOSE, WHICH W AS T HE THI RD PRONG O F G IGLI O. SO THAT'S THE ONL Y ISSUE BEFORE US TODAY.

THAT'S CORRECT. THAT'S THE ONLY ISSUE.

CHIEF JUSTICE: AND IS THIS A M IXED QUESTION OF LAW A ND FACT IN TERMS OF OUR REV IEW OF THE TRIAL COURT'S FIN DI NG S?

I BELIEVE I T R EQ UI RES A DE NOVO REVIEW A ND T HA T' S T HE STATUS OF THE L AW. THAT'S WHAT WAS DONE IN THE OTHER CASES THAT HAVE C OM E BEFORE THIS COURT ON THE ISSUE OF B RA DY /G IGLI O V IOLA TION S R ECENTLY I N MOR DE NT I A ND T HI S COURT HAS A LW AYS C ON DUCTED A DE NOVO REVIE W O F T HE MAT ERIA L TI PRONG O F GIG LI O .

CHIEF JUSTICE: AND T HIS IS ABOUT THE $ 50 0 T HA T MIS S CRONIN WAS GIVEN A S A , Q UO TE , REWARD THAT W AS N OT K NOWN T O T HE D EFEN DANT A ND A T T HE T IM E OF THE TRIAL MIS S CRO NI N T ESTIFIED THAT THERE HAD B EE N NO PAYMENT TO HER?

T HAT' S C ORRECT , M ISS C RONI N T ES TIFIED THERE HAD BEEN NO PAYMENT AND ALSO A LEAD DETECTIVE IN THE CASE INDICATED AT THE TRIAL THERE HAD BEEN NO DEA L O R P AY ME NT MADE TO MISS C RO NI N A ND , I N FACT, BEFORE THE TRIAL B EG AN THERE WAS A S PE CI FI C D IS COVE RY MOTION FROM THE DEFENSE IN THIS CASE A SK IN G W HE TH ER ANY COMPENSATION WHATSOEVER IN ANY FORM HAD BEEN GIV EN T O MAR THA CRONIN SPECIFICALLY NAM ING HER AND WAS TOLD BY THE S TATE ATTORNEY'S OFFICE THAT T HERE HAD NOT B EE N W RI TTEN O R O RALLY BEFORE THE COURT.

CHIEF JUSTICE: SO IT WAS ALREADY FOUND THAT THAT WAS FALSE TESTIMONY? WE ARE NOT REVIEWING THAT?

BOTH OF THE WITNESS ES.

CHIEF JUSTICE: WE ARE REVIEWING WHETHER IT IS HARMLESS, B AKELY WHE TH ER I T I S HAR MLESS ERROR BEYOND A REASONABLE DOUBT?

UNDER THE CHAPMAN S TA ND AR D WHETHER OR NOT THE FACT THERE WAS FALSE T ESTIMONY PRESENT, YOU COULD REVIEW THE RECOR D AND DETERMINE FROM THE RECORD THAT IT E ST AB LISH ES B EY ON D A REASONABLE DOU BT .

CHIEF JUSTICE: AND IT IS YOUR BURDEN TO PROVE IT?

IT IS THE STA TE 'S B UR DEN TO PROVE IT IS HARM LESS ERR OR .

CHIEF JUSTICE: UNDER GIGLI O , I THINK IT IS Y OU R B URDE N , ISN'T IT?

I THINK UND ER C HA PM AN I T I S THE STATE 'S B UR DEN. > > CHIEF JUSTICE: BUT WE ARE IN G IGLI O , N OT C HAPM AN .

BUT IT H AS B EE N F OUND TO BE THE SAME AS THE CHAPMAN STANDARD AND I THI NK O N T HE AEAL IN THE GUZMAN CASE W HEN YOU REMANDE D I T B AC K Y OU INDICATED THOSE TWO S TANDARDS ARE IDENTICAL SO IT WOULD BE THE BURDEN WOULD BE O N THE STATE TO P ROVE BEYOND A REASONABLE DOUBT THAT THERE IS NO LIK EL IHOOD T HI S C OULD HAVE AFFECTED A J UD GMEN T A ND SENTENCE OR A JUDGMENT IN THIS CASE.

JUSTICE: THIS WOULD H AV E G ONE TO I MP EA CHMENT O F THE WITNESS, CORRECT, OF C RONI N?

THAT'S ONE ASPECT OF IT. IT IS ALSO TRUE THA T YO U HAVE TO CONSIDER BOTH OF THESE WITNESSES TESTIFIED FALSELY S O T HE F ALSI TY I TSEL F A LS O HAS T O BE CONSIDERED BUT IT W OULD G O TO I MP EA CH ME NT B UT THAT IS MORE OF A BRA DY VIOLATION, I THINK.WHEN YOU ARE TALKING ABOUT GIGLIO YOU A RE TAL KI NG ABOUT THE FACT THAT THE WITNESSES TESTIFIED FALSELY W HA T I MP ACT DID THAT HAVE ON THE TRIAL AND THE F AIRNESS OF THE PROCEDURE. THAT'S WHAT IS U ND ERSTOO D I N BAGLY AND T HE C AS ES B EFORE THE U.S. SUPREME COURT ON THE ISSUE OF G IGLIO. IT IS T HE FAI RN ESS OF THE PROCEEDING IS THAT ISSUE.

JUSTICE: IF SHE WOULD H AV E TESTIFIED TRUTHFULLY THAT SHE RECEIVED THE $50 0 PAY ME NT , THAT WOULD HAVE GONE TO HER CREDIBILITY AS A WITNESS.

OH, A BS OLUTELY THAT WOULD HAVE GONE TO HER CREDIBILITY AS A WITNESS.

JUSTICE: OKAY. WHAT OTHER I MP EA CH ME NT W AS MADE OF HER AS A W IT NESS A T T HE TRIAL? I THINK WE NEED TO C ON SIDE R ALONG WITH THIS, T O D ETER MINE WHETHER THIS WAS HAR MLES S BEYOND A REASONABLE DOUBT.

I AGREE WITH T HAT. WELL, IT WAS BRO UG HT U P THA T SHE WAS A PROSTITUTE. IT WAS BRO UGHT OUT THA T S HE WAS A COCAINE A DDIC T. IT WAS BROUGHT O UT T HA T S HE HAD PREVIOUSLY SAI D T HA T W HE N SHE W AS FIRST INT ERVI EW ED THAT SHE DIDN'T MAKE A S TATEME NT THAT IMPLI CATED M R. G UZ MAN I N ANY WAY. SHE ONLY DID T HAT LAT ER I N NOVEMBER OF THAT YEAR. SO THOSE WOULD BE THE ASPECTS THAT SHE WAS I MP EA CH ED UPO N.

JUSTICE: WAS I T BROUGHT O UT THAT THE STATE HAD PURCHASED A HOTEL ROOM FOR HER?

RIGHT. IT WAS BROUGHT OUT THAT T HE REASON THEY PUT HER UP IN T HE HOTEL ROOM TO PROTE CT H ER F RO M MR. GUZMAN SUO SE DLY B UT THEY DENIED THAT THAT WAS ANY SORT OF A DEAL. THEY HELPED HER W IT H HER PENDING CHARGE BUT SHE WAS CROSS-EXAMINED IN THOSE AREAS BUT WHEN YOU TAKE INTO CONSIDERATION THAT SHE IS A PROSTITUTE AND S HE I S A C RACK C OCAINE A DDICT T HAT FEEDS I NTO HER MOT IV AT IO N T O M AK E U P A STORY A BOUT M R. G UZ MA N CONFESSING TO HER IN ORDER TO GET THE MONEY SO I D ON 'T T HI NK FAR FROM SAYING THAT THA T IMPEACH MENT S OM EHOW C UR ES THE FACT THAT THIS $ 50 0 WASN' T REVEALED IS NOT CORRECT BECAUSE YOU HAVE TO PUT THAT IN THE OVERA LL C ON TEXT O F W HO WE ARE DEALING WITH. THIS IS A C RACK C OCAI NE ADD IC T PROSTITUTE THAT IS GIVEN M ONEY WHO IS DESPERA TE F OR M ONEY A ND HAS A DAILY CRA CK C OCAI NE HABIT SO THOSE THING S J US T FEED INTO THE I MP EA CH MENT VALUE O F THIS $ 50 0 P AYMENT . > > JUSTICE: WHEN DID THEY G ET THE $50 0?

I BELIEVE IT WAS PAI D I N JANUARY.

JUSTICE: OF WHAT Y EA R ?

I THINK IT I S J ANUARY O F 1993, BUT I COU LDN' T SWEAR TO IT. I KNOW IT WOULD HAVE BEE N NOVEMBER WHEN SHE GAVE THE SDAMENT AND THEN SHE WAS PAI D IN JANUARY.

JUSTICE: THEN WHEN DID S HE TESTIFY?

SHE T ES TIFIED T HE FOLLOWI NG YEAR WHEN T HE CASE C AM E T O TRIAL.

CHIEF JUSTICE: SO HER FIRSTSTATEMENT TO THE POLICE B EF OR E SHE W AS P AI D MON EY WAS IMP LICATED O R S PECI FICA LL Y WAS T HAT COL VI N HAD BEE N MURDE RE D BY GUZMAN , COR RECT ?

T HE F IR ST S TA TE ME NT S HE MADE TO THE POLICE SHE D EN IE D GUZMAN IN ANY WAY. T HEY TALKED TO BOTH M R. G UZ MA N --.

CHIEF JUSTICE: DID THE JURY, NOT THE JURY I GUESS THE JUDGE, DID T HE J UDGE K NOW SHE D IDN' T INITIALLY I MPLI CA TE MR. G UZMA N ? > > THE JUDGE KNEW THAT , YES.

CHIEF JUSTICE: THE J UDGE KNEW SHE HAD M AD E INC ON SIST EN T STATEMENTS?

CORRECT.

CHIEF JUSTICE: ALSO, WHAT ABOUT THE FACT THA T I D ON'T , YOU MAY HAVE MENTIONED IT AND I DIDN'T HEAR IT, T HA T SHE H AD A DEAL TO T ESTI FY I N E XCHA NG E FOR SOME B ENEF IT I N H ER OWN CASE?

RIGHT. SHE PRESENTED H ERSELF A ND S AI D I WANT A D EA L B UT THE S TA TE DENIED EVER GIVING HER A D EAL. THE D ETECTIVE SAID WE D IDN' T GIVE HER A DEAL. WE DID SET HER U P I N A HOT EL TO PROTECT HER FRO M M R. G UZMA N BUT SHE W ANTED A DEAL. THAT CAME OUT BEFORE THE COURT THAT SHE WANTED A DEA L B UT D ID NOT RECEIVE ONE.

CHIEF JUSTICE: THAT'S A LOT OF IMPEA CHME NT ?

AS FAR AS THE IMPEA CH ME NT VALUE, THE FACT T HAT SHE I S A COC AINE ADDICT AND A PROSTITUTE AND THEN SHE IS PAID AND AFT ER S HE F OR GE TS T HE F IRST STATEMENT THA T D OE SN 'T IMPLICATE M R. GUZMAN AND THEN THE R EWARD MONEY IS OFFERED AND THEN SHE G ET S THE R EW AR D MONEY AFTER SHE CHANGES HER TESTIMONY ALL TIES IN BUT YOU ALSO HAVE TO CON SIDER T HE FALSITY OF H ER S TATE ME NT. I MEAN, S HE T ESTI FIED F ALSE LY . SHE LIED TO THE COURT. THE LEAD DETECTIVE LIED TO T HE COURT. SO HOW DOE S T HAT L YING I MPACT THE FAIRNESS OF THE PROCEDURES?

JUSTICE: DID YOU JUST SAY SHE WAS ACTUA LL Y G IV EN T HE MONEY BEFOR E S HE MAD E - - A S I UNDERSTOOD IT, SHE H AD M AD E ANOTHER STATEMENT THAT , I N FACT, IMPLICATED M R. G UZ MA N AND THIS W AS B EFOR E A NY M ONEY EXCHA NGED HANDS.

RIGHT. WELL, THERE I S A DIF FERE NC E BETWEEN T HE MONEY E XC HA NG ED AND WHEN THE REWARD O FFER W AS MADE.

JUSTICE: THE STATE M ADE A GENERAL REWARD OFFER TO THE PUBLIC?

RIGHT. IN THE NEWSPAPER. AND THAT O CCUR RED I N A UGUS T. SHE HAD A LR EADY G IVEN A STATEMENT TO THE POLICE THAT SHE DIDN'T IMPLICATE MR. GUZMA N, AND THEN AFTER T HE REWARD MONEY IS OFF ER ED , ALL W E C OULD GET OUT OF THE DETECTIVE WAS T HERE WAS MOR E DISCUSSION BETWEEN THE DETECTIVE AND MR. CRO NIN ABOUT THE REWARD. SHE GIVES THE S TA TE ME NT T O T HE DETECTIVE IMPLI CA TI NG MR. GUZMAN, AND THE N SHE I S PAID IN JANUARY OF THE FOLLOWING YEAR IN THE J AIL.

CHIEF JUSTICE: NOW W E H AV E , SO WE HAVE TALKE D A BOUT IMPEACHMENT.NOW, A LT HO UGH I T I S N OT A SUFFICIENCY OF EVI DE NCE O R THAT THERE IS OVERWHELM ING EVIDENCE BUT GIVEN THE LIGHT MOST FAVORABLE TO THE STATE , W HAT OTH ER E VI DE NC E T HE RE W AS C ONNECTING GUZMA N T O THE C RIME AND SPECIFI CA LL Y HIM H AVIN G T HE DIAMOND RING O R O TH ER P ARTS OF C OL VIN' S P RO PERT Y?

RIGHT. I W ILL D ISPUTE I DON'T T HINK WE SHOULD LOOK AT IT IN THE LIGHT MOST FAVORABLE TO THE STATE.

CHIEF JUSTICE: WELL, WHATOTHER EVIDENCE DID THE J UD GE HEAR?

THE JUDGE RELIED ON THE FACT THAT T HE MEDICAL EXA MINER HAS SAID THAT THE KNI FE , T HE SAMURAI S WORD OR M R. G UZMA N' S SURVIVAL KNI FE C OU LD H AVE BEEN THE MURDER WEAPON BUT IF YOU READ THE M EDICAL EXA MI NER' S TESTIMONY ALL HE SAYS IS ANY KNIFE THREE-INCHES O R L ONGE R COULD HAVE BEEN THE M URDE R WEAPON IN THIS CASE. SO THERE IS NO S PE CIFICI TY W HATSOEVER T O A NY P ARTI CU LA R MURDER WEAPON IN THIS CASE A ND MR. GUZMAN, CONTRARY TO WHAT THE C OURT SAID , W ASN' T C AU GH T WITH THIS SUR VI VA L KNI FE O UT SOMEW HERE. HE V OLUNTARILY TURNED IT INTO THE POLICE SO THERE IS NO SIG NIFICANT LINK I DON'T BELIEVE THE RECORD WOULD S HO W BETWEEN THE SAMURAI SWORD AND THE MEDICAL E XA MI NE R' S TESTIMONY. THE OTHER A SP EC T O F I T , WHI CH WAS CITED BY THE L OW ER C OURT , IS THE SNICH , M R. ROG ER S TESTIFIED THAT MR. G UZ MAN H AD CONFESSED TO HIM WHILE THEY WERE IN THE JAI L T OGET HE R. HOW EVER, T HE SNI TC H HAD F IL ED A N AFFIDAVIT BEFORE THE TRIAL BEFORE HE TESTIFIED THA T GUZMAN HAD NEVER CON FE SS ED T O HIM SO I HARDLY S EE THA T I S E XTENSIVE KORB R ESIGNA TION . -- COR ROBO RATION . THERE IS UND IS PU TE D T ESTIMONY THAT MR. G UZ MA N S OLD MR. COLVIN'S RING FOR CRA CK COCAINE. MR. GUZMAN'S V ERSION OF T HAT IS THAT CHRIS WALLACE HAD GIVEN H IM THE R ING I N THE AFTERNOON AND ACCORDING TO MARTHA CRO NIN LATER O N S AID THAT GUZMAN HAD CON FE SS ED T O HER ABOUT KIL LI NG MR. COL VI N SO THE C RI MI NA LI TY O R A SPEC T OF THE RIN G I S O NL Y L IN KE D T HROUGH THE TES TI MO NY O F THE LYING WITNESS , MAR TH A C RO NIN.

JUSTICE: WAS T HERE FINGERPRINT EVIDENCE IN THISCASE?

THERE IS FINGERPRINT ON T HE TELEPHONE AND M R. C OL VI N' S HOTEL ROOM. MR. GUZMAN 'S F INGE RP RINT S ARE ON THE PHONE BUT IT IS UNDISPUTED HE HAD HELPED MR. COL VIN MOVE THE DAY BEFOR E AND HAD CALLED M AR TH A C RONI N FROM THAT P HONE SO IT DOES N OT I MPLICATE M R. G UZ MAN IN A NY WAY BECAUSE THAT IS U NDISPUTED. MISS CRONIN AND MR. G UZ MA N CONFIRMED THAT HE HAD HELPED MR. COLVIN MOVE AND THAT HIS FINGERPRINTS OUGHT TO B E ON THE PHONE AND NOT B LOOD Y FINGE RPRINTS. THERE IS NOTHING TO LINK IT TO THE TIME OF THE H OMIC ID E. IT HAD L AID THE RE I NN OC EN TL Y THE DAY BEF OR E B Y T HE F AC T H E HELPED THE PERSON MOV E.

JUSTICE: WAS THERE ANY EVIDENCE IN THE HOTEL R OOM THAT HE T RI ED T O C LEAN UP T HE SCENE? SHE TESTIFIED HE CAME IN WITH A G ARBAGE BAG O F WHI TE R AG S. WAS THERE EVIDENCE FROM T HE SCENE THAT, A GAIN --

THE STATE 'S T HE OR Y W AS T HE SAMURAI SWORD WAS USED , S O WHOEVER USED IT MAY HAVE CLEANED IT OFF. I MEA N - -.

JUSTICE: BUT WAS THERE EVI DENCE THERE WERE NO FINGERPRINTS ON IT AT ALL? ANY EVIDENCE THAT T HE ROOM HAD BEEN CLEANED?

YOU KNOW, I D ON'T R EC AL L ANY SPECIFIC EVIDENCE ABOUT THE ROOM HAV ING BEE N CLE AN ED , ANYBODY T HA T TES TI FI ED . THERE MIGHT HAVE B EE N B UT GETTING BACK TO THE BAG O F CLOTHES, MR. CRONI N H AD S AID THAT M R. GUZMA N IN H ER I MPRE SSION PUT THEM IN THE DUMPSTER AND THE S NITC H H AD SAID GUZMAN T OLD HIM H E PUT THEM IN THE DUMPSTER BUT I T WAS SEARCHED BY THE POLICE A ND THE TRASH D EP AR TM EN T H ADN'T COME TO PICK IT UP OVER T HE WEEKEND AND THERE W AS NOTHING LIKE THAT FOUND IN THE DUMPSTER SO THAT PART OF I T I S INC ONSIST EN T.THERE ARE ALSO MANY O TH ER PEOPLE WHO WERE IMPLICA TED AS BEING INVOLVED IN THIS. OR COULD HAVE BEEN I MP LI CATE D BEING INVOLVED IN THIS. KURTIS WALLACE W AS S EE N B Y ANTONIO L EE G OI NG I NT O MR. COLVIN'S HOTEL ROOM A ND KURTIS WALLACE TOLD THE POL IC E WHEN HE W AS I NT ERVI EWED BY DETECTIVE SYLVESTER T HAT I F THERE WAS A RING STOLE N I K NO W WHO DID IT. THAT WAS THE BEF OR E THE I SSUE OF THE RIN G H AD C OM E O UT . THERE WAS ANOTHER W ITNESS W HO WAS SEEN OR ANO THER P ER SO N WHO WAS SEEN I NS ID E M R. COLVI N' S H OTEL R OOM I N A KNI FE F IGHT WITH HIM, AND THE N M R. COL VI N HAD TAKEN HIS SAMURAI S WORD OFF TO DEFEND H IMSELF AND THE MANAGER OF THE HOTEL R OOM H AD BROKEN THIS UP . > > JUSTICE: ALL OF T HAT TESTIMONY WAS BEFORE THE TRIAL JUDGE?

ALL OF THAT TESTIMONY WAS BEFORE THE TRIAL JUDGE, THAT'S TRUE. SO I DON'T THINK THERE I S A NY EXTENSIVE C OR ROBORA TION A S I S R EQUIRED I N THESE CAS ES T O ESTAB LISH THE S TA TE 'S B URDE N BEYOND A REASONABLE D OUBT THAT THIS COULD NOT HAVE A FFECTE D THE F AI RNES S O F M R. G UZMA N' S T RIAL. AND IF THERE ARE N O FUR TH ER QUESTIONS, I WILL SIT DOWN. THANK YOU .

CHIEF JUSTICE: MR. NUNNELLEY?

MAY IT PLEASE THE COURT , KEN NUNNELLEY, I REPRE SE NT T HE STATE OF FLORIDA. LET ME SET THE C HRON OL OG Y O F T HE EVE NT S THA T T OOK P LACE IN THIS CASE. THEY ARE A LIT TL E B IT COM PLICATED AND SINCE WE'VE HAD A COUPLE OF T RI AL S W E A RE A W AYS OUT F ROM T HE A CTUA L O FFENSE.

JUSTICE: WHILE YOU ARE DOING THE CHRONOL OGY WOULD YOU GIVE US THE D ET AI LS OF T HE PAYMENT OF THIS $ 500? IN OTHER WORDS, WHAT T HE CIRCUMSTANCES WERE I NVOL VE D W ITH T HA T A S EVE NT UA LL Y CAM E OUT IN THE P OS T- CO NVICTION HEARING?IN OTHER WORDS, WOULD YOU BRING THAT IN AND G IVE U S , Y OU KNOW, THE ACTUAL D ETAI LS A S FAR AS H OW THE F INDI NG THA T T HAT ACT UALL Y D ID O CC UR A ND UNDER WHAT CIR CUMSTANCES?

JUSTICE, WITH THE CAVEAT T HAT'S GOING TO COME AT T HE TAIL END OF T HE CHRONOL OGY , OKAY? DAVID COLVIN W AS MURDERED SOMETIME ON AUGUST 10TH OF 1991. THE BODY WAS FOUND O N AUGUS T 12TH BY ONE OF THE C LE AN IN G PERSONS OR M AINT ENANCE MAN AT T HE IMP ER IA L MOTOR L ODGE O N SOUTH RIDGE WOOD A VE NUE.

CHIEF JUSTICE: I GUESS T HEY DIDN'T CLEAN THE ROOM EVERY DAY, HUH?

NO , THE Y D IDN'T C LEAN THE ROOM EVERY DAY. ON AUGUST 12T H L AW E NF ORCE MENT WAS CALLED TO THE SCENE. MARTHA CRONIN , WHO A LS O RESIDED AT THE IMP ER IA L M OT OR LOD GE ALONG WITH M R. GUZ MA N WAS I NTERVIEWED A S W ER E A NUMBER OF THE O THER RESIDENTS OF T HIS M OT EL . AT THAT POINT I N TIM E , M IS S CRONIN GAVE A STATEMENT THA T SHE DIDN'T K NOW ANYTHING ABOUT IT. SUBSEQUENTLY --.

CHIEF JUSTICE: JUST AGAIN SETTING THE SCENE, THE M OTEL BUT YOU TALK ABOUT R ES IDENTS OF THE MOT EL . WAS THIS A W EEK T O W EE K P LA CE ? I MEAN IT SOUND S L IK E IT M US T HAVE BEEN A PRE TT Y SHA DY K IN D OF PLACE?

THAT'S A P RE TT Y G OO D DESCRIPTION OF IT , JUS TI CE PARIENTE. > > CHIEF J USTICE: A RE T HE RE A LOT OF PEOPLE IN A ND OUT O F THIS OR I S IT A HOU R T O HOU R HOTEL , MOT EL ?

JUS TICE PARIENTE , I CAN HONESTLY SAY I HAVE NEVER S ET FOOT IN THE PLACE AND HAVE N O INTENTIONS OF DOING SO.

CHIEF JUSTICE: I'M JUS T GOING FROM THE RECORD, MR. NUNNELLEY.

MY UNDERSTANDING OF THIS HOTEL IN T HI S A REA O F D AY TO NA BEACH WHERE IT SETS.

CHIEF JUSTICE: N OT YOUR UNDERSTANDING, WHAT THE RECORD SHOWS.

THE RECORD SHOWS IT IS A HOTEL WHERE F OL KS L IV E KIN D O F LIKE LOW I NC OME HOU SING , I F YOU WILL. I 'M NOT SURE T HE RECORD U SE S THAT TERM.THAT IS MY UNDERSTANDING AND I BELIEVE THE RECORD WOULD BEAR OUT THAT THAT IS WHAT , I N F AC T , THIS HOTEL IS . I 'M NOT SURE IT I S S TILL THERE. MAYBE IT IS NOT, B UT I DON 'T KNOW IF I T IS STI LL T HE RE O R NOT. ON AUGUST 1 6T H OF 199 1 , THE REW ARD ANN OUNCEM EN T R UN S I N THE DAYTONA BEACH N EWS J OURNAL WHICH IS THE M AJOR N EWSPAP ER I N DAYTONA BEACH , AND IT A LS O RAN IN A NO TH ER N EW SP APER T HA T I DO NOT R EMEMBER T HE N AME O F , AND DON'T THINK I HAV E EVE R SEEN. IT IS A WEEKLY NEW SP APER , I BELIEVE.

CHIEF JUSTICE: WELL, YOU ARE G IVING US -- I M EAN A GAIN THAT'S ALL IN THE DIR EC T - - O R THE OPINION IN THE REM AN D. A UGUST 16T H , AND T HE N THE FAI L TO LEAD TO ARR ES T U NT IL NOVEMBER 2 3. ARE YOU GOING T O F IL L SOMETHING ELSE IN T HAT'S NOT IN OUR OPINION?

NO, MA'AM. NOVEMBER 23RD IS THE CRUCIAL DATE WHEN MARTHA C RO NIN I S PICKED UP ON A V IO LA TI ON O F PROBATION AND THAT'S WHEN SHE STARTS TALKING ABOUT K NOWING SOMETHING ABOUT THIS CASE. ON D EC EM BER 10T H , LAW ENF ORCEMENT CONTACTS MR. GUZMAN, PRE SUMA BL Y BAS ED UPON INFORMATION ABOUT HIS WHEREABOUTS PROVIDED BY M AR TH A CRONIN. AT THAT T IME HE HAN DS OVE R THE INFAMOUS S URVI VA L K NI FE . ON NOVEMBER 13T H , MR. GUZ MA N , I'M SORRY, DECEMBER 1 3T H MR. GUZMA N IS TAKEN I NT O CUSTODY. ON JANUARY 3RD OF 1 992 , MAR TH A CRONIN RECEIVES A M ON EY O RDER IN THE AMOUNT OF $ 50 0 T HA T I S IN PAYMENT O F T HE ANNOU NC ED REWARD IN THIS C AS E. AT THAT POINT IN T IM E MIS S CRONIN WAS IN CUSTODY A T T HE VOLUSIA COUNTY J AI L.

SHE REC EIVE D T HA T F RO M WHOM?

D ETEC TIVE S YLVE STER O R FORMER DETECTIVE SYLVE ST ER.

CHIEF JUSTICE: AND THE DETECTIVE WHO ARRANGED THE PAYMENT CANNOT RECALL WHEN SHE FIRST DISCUSSED THE REW AR D MONEY WITH CRONI N ? CORRECT?

THAT I S C OR RECT . SOMEWHERE AFTER NOVEM BE R 2 3R D , A ND BEFORE MISS C RONIN W AS A CTUALLY P UT I NT O T HE V OLUS IA COUNTY JAIL AND I DON'T REMEMBER EXACTLY WHEN THA T WAS AND IT IS NOT O F G REAT RELEVANCE HERE, SHE WAS , I N FACT, PUT IN A H OT EL O VE R O N THE BEACH SID E I N DA YT ON A BEACH, WHICH IS ACROSS THE RIVER FRO M W HE RE S HE WAS LIVING ON RIDGEWO OD A VENU E. THAT WAS DONE FOR H ER P ROTECTION ACCORDING T O L AW ENFORCEMENT. MISS CRONIN T OOK A DVAN TAGE O F T HE SITUATION AND C ON TINUED TO WORK AS A PROSTITUTE O UT O F THE HOTEL R OOM ON T HE B EACH SID E. THAT'S ALL IN THE OPINION. WE KNOW ALL OF T HIS.

CHIEF JUSTICE: AND OTHERTHAN THIS PART WHERE THEY B OTH D ENIED T HE D ETECTI VE AND CRONIN THAT T HERE HAD BEEN ANY MONEY PAID, A ND WE'VE ALREADY DETERMINED AND IT WAS ALREADY A FINDING THAT T HA T W AS F ALSE TESTIMONY?

THAT'S TRUE.

CHIEF JUSTICE: WHERE ARE W E GOING ON THIS T HE N ?

WHERE WE ARE G OING O N T HIS IS THE D EF EN DA NT 'S P OS IT ION I S THAT THIS I S E NT IREL Y R EVIEWE D DE NOVO B Y T HI S C OURT . I DO N OT DIS PUTE T HE N OTIO N T HAT THE G IGLI O C LAIM I TS EL F IS SUBJECT TO DE NOV O REV IE W. HOWEVER , I DO N OT C ON CEDE N OR DO I AGR EE T HAT T HE FAC TUAL FINDINGS BY THE CIRCUIT COU RT ARE SUBJECT TO DE N OVO REV IEW BY THIS COURT. THIS COURT HAS S AI D OVE R A ND OVER AGAIN THA T I T W ILL N OT SUBSTITUTE ITS J UD GM ENT FOR THAT OF THE FACT F IN DE R. I N THI S P AR TICULAR CASE , W E HAVE AN U NUSU AL C AS E I N THE C ONTEXT OF A G IG LIO CLA IM , B UT THESE ARE THE O NE S THA T T HI S IS THE FACTS THAT WE HAVE. THIS IS THE CASE WE HAVE. WE HAVE A B EN CH T RI AL . THIS COURT SENT THIS C AS E B AC K TO THE TRIAL J UD GE T O A NSWE R A VERY, V ER Y S PECI FI C Q UE STION , WHICH WAS WHETHER THERE I S ANY REASONABLE LIKEL IHOOD T HA T T HE FALSE TESTIMONY WOULD HAVE AFFECTED HIS JUDGMENT , HIS VERDICT AS THE FACT FINDER IN THIS CASE.

JUSTICE: WELL , WHAT IS THE TEST THERE? IS IT A S UB JE CTIV E TES T T HAT IS FOR THE JUD GE TO SAY I'M THE ONE T HAT TRIED I T , A ND , THEREFORE, WHAT I AM G OI NG T O DO IS SAY T O M YS EL F , W EL L , W OULD IT HAVE A FFEC TE D ME , O R D OES THE J UDGE H AV E T O A LY A N O BJECTIVE TEST OF S AYING , WELL, L ET'S SUOSE THAT I T WASN'T ME, THAT IT WAS A J UR Y T HAT WAS C ON SI DE RING T HI S , A ND W HAT WOULD H AVE BEEN T HE I MPACT O N A J UR Y FAC T FIN DE R? SO I'M ASKING Y OU N OW W HA T WAS -- WHAT WOULD B E T HE AROPRIATE TEST FOR T HE JUDGE? HOW WOULD YOU A RTICUL AT E IT , SUBJE CTIVE, I . E . I TRI ED IT , I CAN TEL L Y OU I T WOU LD N' T HAVE MADE ANY DIFFE RE NC E TO ME. I STILL WOULD HAVE FOUND H IM GUILTY, O R OBJ EC TIVE , G EE , N OW I'VE GOT T O C ON SIDE R OBJ EC TI VE LY WHAT THIS I MPACT M AY H AV E H AD ON A F AC T F INDE R , Y OU KNOW , INCLUDING A JURY. W HAT TEST SHOULD THE JUDGE HAVE A LI ED ?

I 'M NOT C ER TA IN , J USTI CE ANSTEAD, W HE THER W E C AN C AL L T HIS A N O BJ EC TIVE V ERSU S SUBJECTIVE SIT UATION O R N OT. I THINK ON THE ONE H AN D W E C AN , AND I THI NK T HA T UND ER T HOSE CIRCUMSTANCES WHAT THE TRIAL JUD GE H AS D ON E I S TAKEN THE LAW AS ANN OU NCED BY THIS C OURT AND THE U .S. SUPREME C OU RT I N GIGLIO ITSELF AND O BJ ECTIVE LY ALIED T HAT T O H IS D ETERMINATIONS AND FOU ND THA T IT WOULD MAKE NO DIF FE RE NC E T O HIM .

JUS TICE: B UT WOULD Y OU AGREE IT WOULD BE A MISTAKE I F HE DID IT SUBJE CT IV ELY? IF HE JUST SAID I WAS THE TRIER OF FACT , AND I T WOULD N' T MAKE ANY DIFFERENC E T O ME? BECAUSE IN MOST I NS TA NCES WE CAN'T BRING A JURY B ACK . TO TRY T HE C ASE A ND S AY , HEY , FOLKS, YOU KNO W , W OU LD THI S HAVE MADE ANY D IFFERENCE T O YOU? YOU'VE GOT TO ALY S ORT O F A N OBJECTIVE T ES T O F WOU LD THI S HAV E MADE A D IFFE RENCE TO A REASONABLE FACT F INDER?

AND I THINK THA T'S W HAT H E HAS DONE. I THINK IT IS A KI N T O R UL IN G ON A MOTION FOR JUDGMEN T OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE .

CHIE F JUSTICE: I GUESS THE PROBLEM I HAVE THEN IS W HY D ID WE, I F IT IS A Q UE ST IO N O F L AW , IN OTHER WORDS YOU LOOK AT THIS WHOLE RECORD , WHY D IDN' T WE J US T DEC IDE I T O URSELVES? IN OTHER WORDS, W HA T ADDITIONALLY DID THE JUDGE D O W HEN IT W AS S EN T BAC K THA T W E COULDN'T DO ON THE SAM E REC OR D ? WERE THERE FACTU AL F IN DING S THAT HE MADE?

T HE J UD GE W EN T - - AS FAR A S THE FACTUAL F INDI NG S A RE C ONCERNED, WE HAVE TWO T HI NGS GOING ON HERE AND I 'M NOT DEFLECTING YOU R Q UESTIO N , J USTI CE PARIENTE, BUT Y OU H AV E INITIALLY WHEN T HI S C ASE C AM E THROUGH THIS COURT, W E HAD A B RADY CLAIM T HA T WAS BAS ED UPON THE S AME FAC TS . BUT BRADY A ND G IG LI O ARE DIFFERENT STA ND AR DS AS FA R A S WHETHER OR NOT THERE IS R EVERSEABLE ERROR. THE MAT ERIALITY S TA NDAR DS A RE DIFFERE NT. THIS COURT DECIDED A B RADY CLAIM AND I WOU LD SUG GE ST IN SO DOING ESSENTIALLY SET THE FACTS OR LOCKED THE F AC TS , I F YOU WILL, W IT H R ESPECT T O THI S ISS UE . AND THIS COU RT 'S O PINION ON REMANDING THE CASE FOR RECONSIDERATION OF THE GIGLI O I SSUE, C LEAR LY D IR ECTE D T HE TRIAL COURT TO A NSWE R I S T HERE ANY REASONABLE L IK ELIH OO D OF IT WOULD HAVE AFFECTED MY JUDGMENT AS T HE FACT FINDE R I N Q UESTION . I DON'T --.

CHIEF JUSTICE: A ND I N THA T WE SAY IN OUR OPINION W E SAY T HAT THE CRO NI N A ND THE L EA D D ETECTIVE TESTIFIED A T TRIAL THAT CRO NI N RECEIVED N O BENEFIT FOR HER T ES TI MONY AGAINST GUZMAN OTHER THA N BEING TAKEN TO A H OTEL R AT HE R THAN JAIL WHEN S HE W AS ARRESTED. IN FACT , THE S TA TE P AI D C RO NI N $500, A S IG NIFICA NT S UM T O A N A DMITTED C RACK C OCAI NE ADD IC T AND P ROSTIT UTE . SO THAT'S A LREADY D ET ERMI NE D .

YES, MA'AM. WE ALL SAID THAT. I'M NOT ARGUING WITH THAT. I DON 'T D IS PUTE THAT. I CAN'T . AS FAR AS T HE U LT IMAT E QUESTION AS TO -- THA T Y OU TILL I - - ACT UA LL Y ASK ED M E A S TO WHY THE COURT R EMAN DED RATHER THAN DECIDING THE CAS E ITSELF , I D ON 'T M EA N T O P RESUME TO TELL THIS C OU RT W HAT ITS T HOUGHT PRO CE SS ES WERE IN R EA CH IN G T HA T DECISION.

CHIEF JUSTICE: I'M ASKING YOU IF IT IS DE NOV O , IF WE WERE TO DEFER TO T HE JUDGE , W HAT F AC TU AL FINDI NG S DID T HE JUDGE MAKE UPO N R EMAN D T HA T WE NEED TO R EFER TO?

HE WENT BAC K A ND M AD E ADDITIONAL -- AND M AD E F AC T FINDINGS AS TO WHAT THE STA TE OF THE EVI DENCE P RE SENT ED A T TRIAL WAS. HE WENT BAC K A ND REV IE WED THE TESTIMONY OF CRO NI N , SYL VEST ER , A COUPLE O F OTH ER P EO PLE WHO SE NAMES ARE ESCAPING ME AT THE MOMENT. A ND MADE A ND E NT ERED A VER Y EXPLICIT AND DETAILE D ORDER A S TO WHAT H IS FAC T F IN DING S W ERE B ASED UPO N H IS R EREV IE W , I F YOU W ILL , O F THE E VIDE NCE AND THEN REACHED THE CONCLUSION THAT IN ANSWER TO THIS C OU RT 'S QUESTION THE ANSWER WAS NO . A ND I W OU LD S UGGE ST T HA T T HO SE FACT FINDI NG S , O R THOSE FINDINGS BY THE C IR CUIT COU RT ARE ENTITLED TO DEF ER AN CE A RE ANY OTHER F ACTUAL DETERMINATIONS MADE BY THETRIAL C OURTS .

JUSTICE: WELL, W HA T T HIS BASICALLY BOI LS DOWN TO , I SN 'T IT, IS T HA T WHA T THE T RIAL COURT IS ASKED T O D O , WAS ASK ED TO DO B Y T HI S COU RT WAS TO TAKE AND M AK E A H INDS IGHT VIEW OF A CCEP TING T HA T T HI S EVI DENCE WAS F ALSE ? LOOKING AT THE T OT AL IT Y O F T HE EVIDENCE IN THE R EC OR D , WAS THERE A REA SONA BL E L IKEL IHOOD THAT THE RES UL T WOULD H AV E B EEN DIF FERE NT ? > > YES, SIR. THAT'S ABSOLUTELY COR RE CT .

JUSTICE: AND SO, IN F AC T , THAT IS W HA T D ID R EQ UIRE D I N EVERY GIG LI O C LA IM , REG AR DLES S OF WHETHER IT IS A JUR Y O R NONJURY?

THAT'S T RUE.

JUSTICE: A ND S OM EBOD Y , A ND WE HAVE R EC OGNI ZE D T HA T THE F IRST CALL OF THAT IS T O B E A T THE TRIAL LEVEL .

YES, SIR.

CHIEF JUSTICE: I THOUGHTTHAT THE, AND I T W AS T HE STANDARD AND MAYBE IT IS T HE SAME, THE REASONABL E LIKELIHOOD OF A DIFFERENT RESULT WE'VE GOT TO BE VERY CAREFUL WHAT THE JUDGE FOUND IS THE STA TEMENT , I TS B UR DE N OF D EM ONSTRATING THAT THE FALSE EVIDENCE WAS H AR ML ES S BEYOND A REASONABLE DOU BT . DO YOU THINK THOSE ARE THE SAME THING ? IS THAT THE S AME T HING?

DO I THINK THEY ARE T HE SAME THING?

CHIEF JUSTICE: T HE STATE MEETING ITS BURDEN OF DEMONSTRATING THE FALSE E VIDENCE WAS H ARML ES S B EY OND A REASONABLE DOUBT. THAT'S WHAT THE TRIAL COURT FOUND.

THAT WAS HIS SECOND FINDING.THAT WAS THE SECOND QUESTION THIS COURT A SKED O R THE L EA ST IT CAME SECOND IN T HE U LTIM AT E PAR AGRAPH I N T HI S COU RT 'S DECISION. THE FIRST WAS THE REASONABL E LIKELIHOOD OF A DIFFERENT , O F REASONABLE LIKELIHOOD IT W OULD HAVE AFFECTED MY JUDGMENT A S THE FACT FINDER WAS THE FIR ST QUESTION. THE SECOND Q UE ST IO N T HA T O N - - W ELL, T HE SEC ON D S EN TENC E BY THE COURT WAS T HE STATE B EARS THE BURDEN OF PROVING THA T T HE ERROR WAS HARMLESS BEYON D A REASONABLE DOUBT. JUDGE JOHNSON TREATED THAT AS A SECOND QUESTION BY THIS COURT AND ANSWERED IT IN T HE AFFIRMATIVE THAT THE STATE HAD, IN FACT , P ROVE N I T , C ARRI ED ITH BURDEN O F PRO VING HARMLESSNESS BEYOND A REASONABLE DOUBT.

ISN'T THAT THE D IF FI CU LT Y THAT WE HAVE HERE , THAT I S THAT THE, QUOTE , I F THE Y A RE F ROM O UR F PB I F THE RE I S A NY REASONABLE LIKEL IHOOD THAT T HE FALSE TESTIMONY C OULD HAVE AFFECTED THE JUDGMENT OF THE JURY, T HAT'S A V ERY DIF FERENT QUE STION T HAN WHETHER OR NOT THERE WOULD HAV E BEEN A DIFFERENT OUT CO ME W IT H THI S EVIDENCE. HOW I S I T T HA T COM IN G OUT WOULD NOT HAVE A FF ECTE D THE J UDGMENT OF THE J UR Y ? NORMAL H AR M LESS E RROR Y OU S AY , WELL, I S THI S S OM ET HI NG T HA T THE JURY W OU LD H AV E SER IO USLY CONSIDERED IN THE IR DELIBERATIONS ? GIVEN O UR C HA RACT ERIZATION O F THIS WITNE SS T HA T JUS TI CE P ARIENTE READ TO Y OU B EF OR E , AND THEN T HE F AC T THA T S HE I N ADDITION TO THE SE O TH ER PROBLEMS THAT SHE W AS P AI D , WOULDN'T THAT H AVE SUBSTANTIALLY UNDERMINED THE CREDIBILITY OF HER EVIDE NC E ?

NO , IT WOULD N OT , A ND HERE'S WHY: T HI S C RONI N W AS HEAVILY I MP EACH ED . WE TALKED ABOUT THAT DURING M Y O ONENT'S INITIAL ARGUMENT ABOUT ALL OF THE I MPEA CHMENT THAT WAS BROUGHT OUT AGAINST HER . THE TRI AL COU RT I N A LYIN G THE STA NDARD T HAT HE W AS SUOSED TO A LY B ECAU SE THI S COURT'S DIR EC TIVE F OUND T HA T IF YOU ADD I N $ 50 0 A S A R EWAR D ON TOP O F W HA T W AS ALR EADY OUT THERE ABOUT H ER , THA T T HERE I S N O REASO NABLE LIK EL IHOO D T HA T IT WOULD HAVE AFFECTED HIS JUDGMENT AS THE FACT F INDER I N THIS CASE , AND I D ON 'T T HI NK WE CAN G O DOW N T HE R OA D O F S UGGESTING THA T LET M E B AC K UP. I DIDN'T SAY THAT VERY WELL. THIS IS N OT A J UR Y CAS E. WE CANNOT LOOK AT I T A S A JUR Y CASE, A ND W E C AN 'T G O D OW N THE ROAD I WOULD SUG GE ST O F IGNORING THE FAC T O R OVERLOOKING THE F AC T THA T THI S W AS A B ENCH TRI AL . IT WOULD B E , I S UBMI T , I N !!!! INARO PRIATE TO SAY , WELL , OKAY, THIS WAS A B ENCH T RI AL BUT IF IT HAD B EE N A J UR Y TRIAL W OULD IT HAV E A FF EC TE D  THE JURY? I DON'T T HINK WE C AN DO T HAT.

JUSTICE: I'M T RY ING T O FOLLOW UP ON WHAT YOU ARE SAYING. ISN'T THE ANALYSIS THE SAME , WHETHER IT WAS A BENCH OR A JURY TRIAL? THE QUESTION IS WHETHER I T WOULD HAVE AFFECTED THE F AC T FINDER 'S J UDGM EN T. > > THE ULTIM AT E QUE STION I S THE S AME. THE F AC TS O F THI S C AS E , BEI NG A B EN CH T RI AL , MEA N T HA T W E D O NOT HAV E THE P OS T H OC ATT EMPT , IF YOU WIL L , T O DIV IN E W HA T A J URY MIGHT HAVE DONE. WE KNOW WHAT THE FACT FINDE R WOULD HAV E D ON E .

JUSTICE: I SN'T T HAT A N IMPROPER SUBJECTIVE TEST BECAUSE WHAT YOU ARE SAYING I S THAT IF YOU HAD HAD A J UR Y TRIAL THAT MAYBE THE OUT CO ME WOULD HAVE BEE N D IF FE RENT BECAUSE THEN YOU WOULD HAVE HAD TO ALY AN O BJEC TI VE T ES T , BUT BECAU SE IT WAS A BEN CH TRIAL BY THIS PARTICU LAR J UDGE , WE KNOW WHA T THI S J UDGE W OU LD HAVE DONE BECAUSE HE T OL D U S IN THE ORDER?

A ND I N REA CH IN G THA T STATEMENT, THAT CON CL US IO N B Y THIS CIRCUIT JUDGE HE ALI ED AN OBJECTIVE T ES T I N DETERMINING THAT IT WOULD NOT AFFECT HIS JUDGMEN T A S THE FACT FINDER.

CHIEF JUSTICE: JUSTICE CANTERO H AS FURTH ER QUEST IONS . > > I H AV E A S IMIL AR QUE ST IO N AS JUSTICE A NSTEAD. WE CAN'T SAY, JUDGE, YOU TELL US IF IT WOU LD H AVE A FF EC TE D YOUR DETERMINATION. WHAT WE HAV E TO SAY I S , J UDGE , YOU TELL US IF THIS WOULD H AVE AFFECTED A F ACTFIN DE R 'S D ETERMINATION IF A F AC TF IN DER , WHETHER IT IS A JUDGE OR A JURY, BUT A FAC TF INDE R N OT THIS F AC TF INDE R WHO H AENED TO HEAR THE PREVIOUS CAS E?

WELL, AND NOT T O O R T O ARGUE WITH YOU, J US TI CE C AN TEAR TO - - C ANTE RO .

FEEL F REE. > > T HE QUE ST IO N T HA T JUD GE JOHNSON ANS WE RE D I S THE QUESTION THIS COURT P UT T O H IM . AND I WOULD S UBMI T T HA T T HERE IS A V ER Y STRON G U NDER CU RR EN T IN T HE DEF ENSE BRI EF THA T SEEKS TO PUT THE T RI AL J UDGE IN ERROR FOR DOI NG EXA CTLY WHAT THIS C OURT TOLD HIM TO GO DO . T HE O BJ ECTIVE , S UBJE CTIV E D ICHOTOMY, JUS TICE A NSTE AD , I S SOMETHING I HAVE W RESTLE D WITH. IT D OE SN'T ANA LY TICALL Y T O M E SQUARELY FIT T HE SE F ACTS BECAUSE THIS IS A BENCH TRIAL AND I'M NOT WILLING T O S UGGE ST THE COURT SHOULD ENGAGE I N ANY KIND OF M ENTA L G YM NA ST IC S T O FLIP THE STANDAR D A RO UN D O R CHANGE IT ABOUT.

CHIEF JUSTICE: IT IS , AS I SEE THE W AY WE P HR ASED T HIS AND IT IS I NT ERES TING , B EC AUSE IT LOOKS LIKE THERE A RE T WO DIFFERENT THEMES AND WHAT I WAS THINKING ABO UT I S L ET'S SAY IT IS A BEN CH T RIAL AND THERE WAS ERROR IN S OMETHING THAT THE TRIAL C OURT A LL OW ED IN OR DIDN'T ALL OW I N. WHEN WE WOULD LOOK A T T HIS O N AEAL FOR A HARMLESS ERR OR. SAY HE HAD LEFT S OMETHING I N AND IT SHOULD NOT HAVE BEEN I N AND IT WAS OBJEC TE D TO. WE W OULD S AY , WAS I T HAR ML ES S E RROR BEYOND A REASO NABLE DOUBT? WE WOULDN'T SEND IT B ACK TO THE TRIAL JUDGE T O S AY , WEL L , IF Y OU H ADN' T LET I T I N , O R HAD LET I T I N , WHA T W OU LD, Y OU KNOW, HOW WOULD Y OU H AV E R ULED DIFFERENTLY? WE MAKE THAT DET ER MI NA TION O F HARMLESS ERR OR UND ER GIG LI O , REALLY AS A MATTER O F LAW BASED ON AN OBJECTIVE R EV IE W OF THE R EC OR D . CORRECT?

I B EL IEVE S O , J USTI CE PARIENTE.

CHIEF JUSTICE: WELL, YOU KNOW SO BECAUSE YOU HAVE BEEN AN AEL LATE A DV OC AT E T HA T , YOU KNOW, THAT'S A N A EL LA TE STA NDARD FOR REVIEW. NOW, MAYBE T HI S G IG LI O I SSUE DOESN'T QUITE FIT, Y OU KNO W , W ITH THE GIG LI O I SS UE . WHERE THE JUDGE IS THE F AC T FINDER. I'M NOT S URE ABOUT THAT.

IT DOESN 'T P IG EO N HOL E VERY WELL. I W ILL C ERTAINLY CONCE DE THAT. NOW, I MEAN I K NOW I A M O N Y OU R-ALLS TIME NOW , BUT I K NO W THE HARMLES S E RR OR D ISCUSSION , H ARMLESS ERROR HAS BEE N MEN TIONED. THERE IS SOME A T L EA ST D EBATABLE P OSIT IO N THA T I T M AY NOT E XA CT LY B E H ARML ESS ERR OR AND HAR ML ES S E RR OR MAY BE SOMETHING THA T'S KIND OF EASING ITS WAY O VE R INT O THE GIGLIO CLAIM THAT M AY OR MAY NOT NECESSARILY BEL ON G T HE RE. THAT'S A MATTER FOR THIS COURT TO DECIDE AS A M AT TER O F L AW.

CHIEF JUSTICE: WE CITE T O UNITED STATES V ERSUS A GGER S WHICH IS OUT OF T HE UNITED STATES SUPREME COURT IF THERE IS ANY REASON THAT THE F AL SE TESTIMONY COULD HAVE , AND W E HIGHLIGHTED THAT, COU LD H AV E WHICH GOES BAC K T O BEI NG A N OBJ ECTIVE TES T A ND Y OU A GR EE WITH THAT , THA T T HA T' S T HE UNITED STATES SUPREME C OURT .

THAT IS THE LAN GUAGE. I WOU LD H OWEV ER P OI NT T HE COURT TO THE VEN TURA DEC ISIO N OUT OF THE 11TH CIR CU IT A ND I KNOW THAT IS A C IRCU IT C OURT OPINION BUT THERE I S A DISCUSSION INVENT YOU'RE A A BOUT - - I N VEN TU RA A BO UT THE H ARM LE SS E RR OR I SSUE S. I DON'T WANT TO GO D OW N T HAT ROAD.

CHIEF JUSTICE: BECAUSE ALSO IT IS, IT W ASN'T US T HAT C AME UP WITH THIS I DEA THAT THE MATERIALITY STANDARD I S EQUIVALENT TO CHAPMAN. THAT COMES F RO M B AGLE Y O UT O F THE UNITED STATES SUPREME COURT.

THANK YOU, MA'AM. I WOULD ASK T HAT THI S COU RT AFFIRM THE LOWER COURT 'S R ULING .

AS T O T HE ISS UE O F THE BENCH TRIAL AND THE POTENTIAL FOR ANY D EFER AN CE T O THE C OU RT , I DID CITE I N M Y B RI EF T HE BAGLEY CASE WHICH, IN FACT , WAS A B EN CH T RIAL A ND T HE N I T WAS AEALED TO THE 9 TH CIRCUIT AND THEN IT WENT O N UP TO THE U .S . SUPREME COURT .

JUSTICE: LET ME ASK YOU THIS ABOUT OUR PRI OR DETER MINATION , I N GUZ MA N , W E SAID KIND OF TWO T HING S A ND I WONDER IF THOOS ARE - - THE SE ARE TWO S TA NDAR DS OR TWO S IDES OF THE SAME COIN. WE SAID THE PRO PE R QUESTION I S WHETHER THERE IS ANY REASONABLE LIKEL IHOOD THAT THE FALSE TESTIMONY COULD H AVE AFFECTED THE COURT'S JUDGMENT AS A F AC T F IN DER. IF THERE IS ANY R EASO NABL E LIKELIHOOD THAT THE F AL SE STATEMENT WOULD HAVE A FFEC TED THE NEW T RIAL I S R EQ UIRED THEN IT SAYS THE STATE BEARS T HE BURDEN OF PROVING THAT THE PRESENTATION OF THE FALSE T ESTIMONY WAS H ARML ESS BEYON D A REASONABLE DOUBT. SO ARE THESE L IK E T WO P RONGS OF A TEST OR A RE T HE SE , T HE D IFFERENT SIDES OF THE SAM E PRONG?

I THINK IT IS A D IF FE RENT SIDE OF THE SAM E PRONG BUT YOU HAVE TO BE CAREFUL W HE N Y OU START TALKING ABOUT WHETHER I T WOULD HAVE CHANGED THE O UTCO ME OR NOT BECAUSE THA T CLE AR LY WOULD BE B RADY AND O NE THI NG THAT IS A BS OL UT EL Y S UR E I S T HAT GIG LI O IS A M OR E DEF EN SE FRIENDLY STANDARD A ND E VEN I N BRADY YOU DON'T H AVE TO PROVE THAT THE O UT COME W OU LD H AV E BEEN DIFFERENT. IT WOULD HAVE B EE N S UF FI CIEN T.

J USTICE: BUT I N THE STATE OF THIS CASE, I MEAN THE L AW IN T HI S C AS E IS THA T W HAT T HI S COURT DID WAS T HI S C OURT S AI D THAT THERE W ER E TWO ELE ME NT S OF G IG LI O T HA T H AD B EE N MET , BUT T HAT W E , AND THE N THE CON CLUDING STA TE MENT H ER E I S WE RAN - - R EM AN D G UZMA N 'S CLAIM TO THE POS T-CO NV ICTION COURT F OR ALICA TION OF THE GIGLIO STANDARD TO THE F ACTS . AND T HE F AC TS W ER E , T HE F AC TS IN THE R EC OR D U P U NT IL T HA T TIME AND S O W HA T T HI S T RI AL JUDGE T RI ED TO D O , T HE W AY I READ IT , I S THE T RI AL JUD GE SAT DOWN AND TRIED TO D O T HAT , AND ALIED THE M T O THE F AC TS OF THE JUST L IK E W E O RD ERED THE TRIAL JUDGE TO D O.

RIGHT. I AGREE WITH THA T .

JUSTICE: SO WHA T Y OU A RE SAYING IS THA T T HO UG H W E TOL D THE TRIAL JUD GE TO MAKE T HAT DECISION, THAT A ND THE T RIAL JUDGE DID IT ON THE B AS IS OF THE R EC ORD , T HA T T HE N W E A RE T O , S HOUL D R EVERSE , YOU K NOW?

I A M A SK ING FOR A DE N OV O REVIEW JU ST AS IS D ON E I N A LL OF THE OTHER GIG LI O C AS ES T HA T COME BEFORE THIS COURT.

JUSTICE: THE PROBLEM IS IF IT WAS GOING TO BE - - I F WE WERE GOING TO DO THAT , WOULDN'T WE HAVE DONE THAT WHEN IT W AS HER E B EF ORE?

I DON'T KNO W W HY Y OU DID N' T DO IT WHEN IT WAS H ER E B EFORE. I THINK ON R EHEA RI NG I WOU LD ASK THE COURT T O G O AHE AD A ND DO IT.

JUSTICE: LET ME ASK Y OU ABOUT M R. NUNNE LLEY'S DISCUSSION OF THE SUBJECTIVE VERSUS O BJ EC TIVE S TAND AR D A ND YOU ARE SAYING IT IS NOT REALLY THAT KIND OF DIC HO TOMY BUT HE IS SAYING I N OUR P RIOR D ECISION WE TOLD T HE C OU RT SPECIFICALLY TO SAY WHETHER IT WOULD HAVE A FFECTE D THE COURT'S JUDGMENT , A ND A S I READ OUR D ISCUSS IO N O N P AG E 5 07 AND 5 08 O F O UR P RIOR DECISION, W E S AY THA T T HE PROPER QUESTION U ND ER GIG LI O IS WHETHER THERE IS A NY REASONABLE LIKELIHOOD THAT THE FALSE TESTIMONY COULD HAVE AFFECTED AND THEN WE SAY T HE COURT'S J UDGMENT AS T HE F AC T FINDER IN THIS C ASE. SO WE S EEM T O H AV E B EEN TELLING THE COU RT DID THI S AFFECT YOUR JUDGMENT AS THE FACT FINDER?

WELL, VERY TO T A T AKE A LOOK A T T HAT I N THE C ON TEXT O F THIS IS A GIGLI O C LA IM A ND THAT IS A MOR E D EFENSE FRIENDLY CLAIM SO WHETHER OR NOT IT AFFECTED THE TRIAL AS FACT FINDE R Y OU A RE T ALKI NG ABO UT UNDER G IGLI O W HE THER T HE FAIRNESS OF THE P ROCEEDING I S IMPACTED, NOT WHETHER THE OUTCOME WOULD H AVE BEEN DIFFERENT BECAUSE THAT'S BRADY AND THIS IS C LE ARLY M OR E DEFENSE FRI ENDLY STANDARD. YOU WOULD B E J UMPING OVE R BRADY EVEN IN A LY IN G A HIGHER STANDARD IN A G IGLI O V IOLATION THAN YOU WOULD I N A BRADY VIOLA TION I F T HA T WAS THE WAY TO READ IT. THAT'S WHY YOU HAVE TO READ THE GIGLIO CAS E I N CON TE XT WITH THE OTHER CASES FROM THE U.S. SUPREME COURT THAT TALK ABOUT THE IMPACT ON THE FAIRNESS OF THE PROCEEDING THAT THE FALSE T ESTIMONY H AD. SO RIGHT ON POINT THE BAG LE Y CAS E IS D IR EC TLY O N POINT. THAT WAS A BENCH TRIAL AND THAT COURT IN THAT C ASE SAI D I'M IN A SPECIAL U NI QU E POSITION TO R EVIEW THE F AC TS OF THIS CASE AND I FIN D THA T IT WOULDN'T HAVE HAD ANY EFFECT ON ME OR M Y VERDI CT , AND THEY SAID , A ND T HE BAG LE Y SAID IT IS N OT A D ETERMI NA TION ABOUT A SUBJECTIVE A NALYSI S B Y THE TRIAL COU RT A ND A LS O I N THE VAS QU EZ C AS E I T IS N OT HOW THE TRIAL JUDGE WOU LD SUBJECTIVELY EVALUATE THE UNDISCLOSED OR FALSE TESTI MONY BECAUSE IT CAN'T BE T HA T W AY AND IN VEN TURA Y OU T HR EW O UT WHAT THE TRIAL COURT S AID A LL TOGETHER BECAUSE THEY A LIED THE WRONG STANDARD A ND TOTALLY AND INDEPENDENT DE NOVO REVIEW. THAT'S ALL I AM ASKING YOU TO DO IN G UZMA N' S C AS E. TAKE A LOO K AT T HE REC OR D A ND SEE IF THERE IS ANY CORRO BORATION AND SEE T HE I MPEACHMENT VALUE OF THE EVIDENCE WITH N O DEFERAN CE TO THE TRIAL COURT.

CHIEF JUSTICE: TELL ME WHAT YOU SAID AGAIN ABOUT THE WITNESS THAT THE JUDGE R EL IE S ON F OR COR RO BO RA TI ON , W HE THER HE CONFESSED T O S OM EONE E LSE.

THAT'S M R. P AU L R OG ERS , H E IS A S NI TC H A ND H E T ES TI FIED THAT MR. GUZMAN HAD C ONFE SS ED TO HIM WHILE THEY WERE BOTH IN THE COUNTY JAIL AWAIT ING T RIAL AND THE L OWER C OU RT SAI D THAT WAS CORROBO RATION OF THE G UILT OF M R. G UZ MA N G OING THR OUGH THE PROCESS.

CHIEF JUSTICE: ISN'T IT?

I DON'T T HINK S O B ECAUSE THE GUY HAD SAID BEFOR E I N A SWORN AFFIDAVIT GUZ MAN NEV ER CONFESSED TO ME.

CHIEF JUSTICE: BUT THERE IS SOMETHING WHERE T HAT JUDGE WAS EVALUATING THE CRE DI BILITY OF THE CORROBO RATING E VIDE NCE? > > RIGHT.

CHIEF JUSTICE: IN OTHERWORDS, AS TO WHETHER THAT WITNE SS WAS SUFFI CIENTL Y IMPEACHED OR N OT H E FOU ND I T TO B E