Richard v. Rhodes v. State of Florida

SC04-31

>> ALL RISE.
OUR FINAL CASE ON THE
THIS MORNING IS ROSE V.
STATE OF FLORIDA.
>> I'M TERRY BACKUS
REPRESENTING RICHARD RHODES,
JR. IN MY CASE.
I AM GOING TO ADDRESS TWO
CASES.
FIRST CONCERNING THE FALSE
TESTIMONY OF FBI AGENT MICHAEL
MALONE AT THE GUILT PHASE,
WHICH WAS IN 1984, THE SECOND
ISSUE IS INEFFECTIVE ASSISTANCE
OF COUNSEL AT RESENTENCING.
THAT OCCURRED IN THE
EARLY 90s, AND WERE TWO
SEPARATE PROCEEDINGS, SO I'LL
BE REFERRING TO DIFFERENT JURY
RECOMMENDATIONS.
I'LL DO MY BEST TO TRY TO KEEP
IT FROM BEING TOO CONFUSING.
>> LET'S GO INTO THE FIRST ONE.

WASN'T THERE REALLY A FALSE
STATEMENT IN THE FIRST ONE?
>> YES.
>> AND THEN WAS THERE THE
FALSEHOOD OF THE KNOWLEDGE OF
THE STATEMENT?
>> YES.
>> AND WHY DON'T YOU EXPLAIN
THAT IN SOME DETAIL FOR US.
>> WELL, THE FALSE TESTIMONY
WAS PRETTY MUCH THROUGHOUT
AGENT MALONE'S TESTIMONY.
FIRST OF ALL, HE TESTIFIED THAT
HE TESTED EACH AND EVERY STRAND
OF HAIR THAT WAS SUBMITTED TO
HIM BY THE PINELLAS COUNTY
STATE ATTORNEY'S OFFICE.
HE NOT ONLY TESTIFIED TO THAT
AT THE TIME OF TRIAL, HE
TESTIFIED TO IT AGAIN AT
RESENTENCING, AND LET ME TELL
YOU WHY THAT'S IMPORTANT.
THIS IS ONE OF THE EXAMPLES OF
THE EXHIBITS THAT, THAT AGENT
MALONE WAS IDENTIFYING AT TRIAL.
THE FACT OF THE MATTER IS THAT
HE DIDN'T TEST THIS EXHIBIT NOR
ANY OF THE EXHIBITS THAT HE
IDENTIFIED AND WERE ADMIT UNDER
TO EVIDENCE AT THE TIME OF
TRIAL.
>> LET ME ASK A QUESTION.
>> NONE.
>> LET ME ASK A QUESTION ON
THAT.
ON THE RECORD PAGE 1877, HE WAS
ASKED BY THE STATE, YOU
INDICATED THAT ALL THE HAIRS
FOUND THAT WERE GIVEN TO YOU
FROM COMBING AROUND THE
VICTIM'S BODY.
>> YES.
>> WERE THE VICTIM'S HAIR.
>> UH-HUH.
>> YOU ARE SAYING THAT THERE'S
OTHER TESTIMONY THAT TALKS
ABOUT -- CLARIFY THAT FOR ME.
>> ACTUALLY I WAS CONFUSED
ABOUT THAT SO I WANTED TO MAKE
SURE WHEN I EXAMINED HIM DURING
THE POST-CONVICTION HEARING
THAT I WAS COMPLETELY CRYSTAL
CLEAR ON WHAT HE WAS SAYING.
I ASKED HIM THREE OR FOUR
TIMES, IS IT YOUR TESTIMONY
THAT YOU TESTED EACH AND EVERY
STRAND OF HAIR THAT WAS
SUBMITTED TO YOU BY THE
PINELLAS COUNTY STATE
ATTORNEY'S OFFICE, AND THE
SHERIFF'S DEPARTMENT, AND HE
ANSWERED THE QUESTION YES ON
THREE OUR {R} OR FOUR
OCCASIONS.
>> ARE WE GETTING DOWN NOW TO
THE SOME OF THEM WERE CRUSHED
OR WERE UNABLE TO BE EXAMINED?

>> THAT WAS HIS TESTIMONY.
THAT WAS HIS TESTIMONY AT THE
EVIDENTIARY HEARING THAT HE WAS
MISTAKEN AND THAT SOME OF THE
HAIRS THAT HE IDENTIFIED IN HIS
REPORT AS HAVING BEEN TESTED BY
HIM WERE IN FACT NOT SUFFICIENT
FOR COMPARISON.
THE PROBLEM WITH THAT TESTIMONY
IS THAT IN ORDER FOR HIM TO
MAKE THAT DISTINCTION, WHETHER
IT WAS INSUFFICIENT FOR THE
COMPARISON, HE HAS TO MOUNT THE
HAIRS ON A GLASS SIDE WITH A
PERMANENT MOUNT SOLUTION, AND
LOOK AT IT THROUGH A
STEREOSCOPE, WHICH IS BASICALLY
TWO MICROSCOPES SIDE BY SIDE.

THAT WAS HIS TESTIMONY AT
TRIAL.
THAT WAS HIS TESTIMONY AT THE
EVIDENTIARY HEARING.
THAT'S THE ONLY WAY HE CAN
DETERMINE WHETHER A HAIR IS
SUITABLE FOR COMPARISON.
THE FACT OF THE MATTER IS THAT
ALL OF THE EXHIBITS HE
IDENTIFIED AT TRIAL WERE IN A
FORM THAT WAS NOT ON GLASS
SIDES.
THEY WERE INSTEAD IN THIS FORM.

EITHER CLUMPS OF HAIR IN ZIP
LOCK BAGS OR THEY WERE SINGLE
STRANDS IN SMALLER ZIPLOC
BAGS.
>> ANSWER JUSTICE BELL'S
QUESTION.
HAVE YOU FULLY ANSWERED JUSTICE
BELL'S QUESTION ABOUT WHERE
THAT TESTIMONY WAS IN THE
RECORD THAT HE WAS ASKING FOR.

>> YES, I THINK I CITED FOR IT
EXTENSIVELY IN THE INITIAL
BRIEF WHEN HE TESTIFIED IN THE
EVIDENTIARY HEARING AND WHEN I
SIT DOWN BEFORE MY REBUTTAL I
WILL DIG OUT THE PAGE NUMBERS.

>> NO, I WAS ASKING AT TRIAL.
>> PARDON ME?
>> THE QUESTIONS THE TESTIMONY
AT TRIAL.
>> YES.
>> AND HE WAS ASKED BY THE
STATE WHETHER HE TESTIFIED
WHETHER HE TESTED THE HAIR
COLLECTIVE FROM -- COLLECTED
FROM AROUND THE VICTIM'S BODY.

BUT WAS THERE OTHER TESTIMONY
AT TRIAL.
>> YES.
>> THAT WAS --
>> IF YOU LOOK AT PAGE, WELL,
1873, HE SAID ALL, AND I'M, I'M
LOOKING AT THE THIRD PARAGRAPH,
HIS ANSWER, ALL OF THE UNKNOWN
HAIRS FROM THE VICTIM WERE FROM
THE AREA WHERE THE VICTIM WAS
FOUND TURNED OUT TO BE EITHER
HER HAIRS OR THEY WERE HAIRS
THAT WERE BASICALLY NO G. THEY
WERE JUST HAIR FRAGMENTS AND
THEY COULDN'T BE ASSOCIATED TO
ANYBODY.
SO AGAIN, THE BOTTOM LINE AS
FAR AS THE HAIR FROM THE VICTIM
OR THE AREA WHERE SHE WAS FOUND
IS THAT THERE WERE NO FOREIGN
HAIRS AT ALL.
>> AND DID YOU ESTABLISH THAT
AT THE EVIDENTIARY HEARING THAT
THERE WAS HAIR AROUND THAT WAS
OTHER THAN THE VICTIM'S, OTHER
THAN THE ONE THEY COULDN'T
IDENTIFY?
>> THAT HE TESTIFIED TO?
--
>> OR SOMEBODY ELSE.
>> I THINK --
>> I'M MOVING A LIT BIT MORE
TO THE PREJUDICE OR THE
QUESTION HERE.
>> SURE.
CERTAINLY THERE WERE OTHER
HAIRS IN THE AREA.
I MEAN, IT WAS, IT WAS THE
DEMOLITION OF A HOTEL IN WHICH
THE BODY WAS FOUND.
AND CRIME SCENE TECHNICIANS DID
TESTIFY AT TRIAL HOW THEY
GATHERED THE HAIR AND THEY SAID
THAT THEY GATHERED HAIR
EITHER THAT WAS IN HER HANDS OR
IMMEDIATELY ON HER BODY OR VERY
NEAR TO HER BODY.
AND I BELIEVE THAT THOSE WERE
THE EXHIBITS THAT HE WAS
IDENTIFYING AT THE TIME OF
TRIAL AS THOSE THAT HE TESTED.

BUT THE FACT OF THE MATTER IS,
HE DIDN'T TEST ANY OF THEM.
WHAT HAPPENED, I THINK, WAS
THAT -- HE DIDN'T TEST ANY
OF THEM.
>> NONE OF THE EXHIBITS THAT
WERE ADMITTED AT TRIAL NONE OF
THEM THERE WERE GLASS SLIDES, A
NUMBER OF GLASS SLIDES IN THE
CUSTODY OF THE PINELLAS COUNTY
SHERIFF'S OFFICE THAT WERE
RETURNED FROM THE FBI.
THOSE WERE THE HAIRS THAT HE
TESTED.
AND HE TESTIFIED AT THE
EVIDENTIARY HEARING THAT HE
TESTED ABOUT 63 HAIRS.
THERE WERE HUNDREDS AND
HUNDREDS OF HAIRS THAT HE
IDENTIFIED AT THE TIME OF TRIAL
AS BEING THOSE HE TESTED.
AND IT WAS SIMPLY NOT TRUE.
>> DID YOU PRESENT ANY EVIDENCE
THAT, THAT TESTS ON THESE HAIRS
WILL COME TO SOME OTHER
CONCLUSION THAT IT WAS EITHER,
THAT THE DEFENDANT COULD'VE
BEEN EXCLUDED AS ONE OF THE
HAIRS OR THAT IT BELONGED TO
SOMEBODY ELSE?
>> SURE.
WELL, I, I TRIED TO DO IT TWO
WAYS.
FIRST OF ALL, I ATTEMPTED TO
HAVE DNA TESTING DONE TO
ACTUALLY MAKE THAT DEFINITIVE
DETERMINATION EXACTLY WHAT WAS
HAPPENING.
THE JUDGE GRANTED THE DNA
MOTION, AND DNA TESTING WAS
CONDUCTED BY FDLE.
HOWEVER, WHEN THE RESULTS CAME
BACK, WE WEREN'T GIVEN THE
OPPORTUNITY TO DEPOSE THE FDLE
PERSON TO FIND OUT EXACTLY WHAT
SHE DID --
>> WHAT DID THE DNA TESTS SHOW.

>> WELL, THAT WAS NEVER ADMIT
UNDER TO EVIDENCE AT THE
EVIDENTIARY HEARING, SO THAT'S
ONE OF THE PROBLEMS IS THERE
WAS NO ADVERSARIAL TESTING OF
THE REPORT AT ALL.
>> DID YOU RECEIVE --
>> IT WAS INCONCLUSIVE.
>> MA'AM, DID YOU RECEIVE THE
REPORT --
>> I DID.
IT WAS INCONCLUSIVE.
>> AND THAT'S WHY THERE WAS NO
EVIDENCE PRESENTED AT THE
EVIDENTIARY HEARING BECAUSE IT
DIDN'T HELP --
>> EXACTLY BECAUSE WE DID OUR
BREAST TO TRY TO MAKE THEIR --
BEST TO TRY TO MAKE THAT
DETERMINATION, HOWEVER, ONE OF
THE POINTS THAT I MADE AT THE
EVIDENTIARY HEARING WAS TO
ACTUALLY HAVE THE CLERK OF
COURT BRING THE EXHIBITS IN TO
SHOW THE JUDGE EXACTLY WHAT WE
WERE TALKING ABOUT.
ONE OF THE THINGS, JUST ON A
VISUAL EXAMINATION WAS THE HAIR
THAT WAS THE SUBJECT OF THE
BRADY CLAIM, THAT DISCLOSURE AT
THAT TIME, THE HAIR THAT WAS
CLUTCHED IN HER HAND WAS A
BLONDE HAIR & IT WAS IN A
PETRI DISH AND I SHOWED IT TO
THE JUDGE, AND THE DEPUTY CLERK
TESTIFIED TO THE HAIR, AND WHAT
COLOR IT WAS AND WHAT CONTAINER
IT WAS IN.
AND I DID SHOW THAT IN THE
BOOKING PHOTOS OF RICHARD
RHODES AND REALLY AND THERE
WERE A NUMBER OF CONVICTION
{THATíS} DESCRIBE MR.^RHODES
FROM VERY EARLY ON IN HIS LIFE,
HIS HAIR WAS ALWAYS LISTED AS
EITHER BLACK OR BROWN.
AND HAS ALWAYS BEEN THAT COLOR.

THE VICTIM --
>> WASN'T -- OKAY, KEEP GOING.

THAT'S THE NEXT ONE.
>> I KNEW WE WERE GOING THERE.

THE VICTIM, AS IT'S, AS IT
HAPPENS, ALSO HAD BOOKING
PHOTOS, AND I BELIEVE THOSE
WERE AT A STATE'S EXHIBIT 5 AA,
2-5 AA.
AND IN THOSE BOOKING PHOTOS OF
THE VICTIM'S HAIR IS
BROWN.
AND AS YOU CAN SEE FROM THESE
OTHER HUGE, THESE HUGE
EXHIBITS, VERY DARK HAIR FROM
THE VICTIM.
THE HAIR IN THE CLUTCHED IN THE
VICTIM'S HAND IS BLONDE.
SO IMAGINE WHAT A DEFENSE
ATTORNEY COULD DO WITH THAT
INFORMATION KNOWING, KNOWING
THAT FBI AGENT MALONE DID NOT
TEST THAT HAIR.
>> WELL, WAS IT NOW -- LET ME
-- SO GOING BACK TO WHAT
JUSTICE CANTERO ASKED YOU, WAS
THAT BLONDE HAIR, HAS IT BEEN
TESTED?
>> IT WAS -- LIKE I SAID, IT
WAS TESTED BY FDLE, WE HAD
ADDITIONAL TESTING, BUT AT THIS
POINT.
WE DON'T KNOW.
WE DON'T KNOW.
WE DON'T HAVE AN ANSWER.
>> SO WOULDN'T -- ON A WE DON'T
KNOW, HOW IS THAT ENOUGH TO
HAVE YOU WIN ON A ANY OF THESE
CLAIMS?
>> WELL, IT IS ENOUGH BECAUSE
AS I WAS ARGUING BEFORE,
IMAGINE THAT THIS IS ALL WE
KNOW.
THAT THERE IS A BLONDE HAIR
CLUTCHED IN HER HAND, AND, AND
THAT, AND THAT FBI AGENT MALONE
DIDN'T TEST T. IMAGINE WHAT THE
DEFENSE ATTORNEY COULD'VE DONE
WITH THAT?
REMEMBER, THE JUDGE ALREADY
OBJECTED AT THE TIME OF TRIAL
TO, TO AGENT MALONE GOING
OUTSIDE HIS AREA OF EXPERTISE.

SO IMAGINE WHAT HE COULD'VE
DONE WITH THAT.
THE IMPEACHMENT THAT HE
COULD'VE DONE AT THIS WITNESS
AND WHAT HE COULD'VE ARGUED TO
THE JURY, THIS IS ROAD.
>> RIGHT, BUT I GUESS NOW IF IT
GOES BACK, IT'S THE TESTING
WHICH WOULD SAY IT'S
INCONCLUSIVE.
IS THAT ENOUGH THEN TO
ESTABLISH
THAT IT WAS NOT HARMLESS HAIR.

IN OTHER WORDS, DO YOU LOOK
BACK AT WHAT YOU MIGHT'VE BEEN
ABLE TO DO WITH IT THEN, YOU
KNOW, WHICH IS SOMEWHAT AGAIN,
YOU KNOW, IT'S ALWAYS HARD TO
GO SUPERIMPOSE NEW EVIDENCE ON
AN OLD TRIAL, OR SHOULD WE LOOK
AT HOW IS THIS AT ALL GOING TO
EXONERATE MR.^RHODES.
>> SURE.
WELL, I THINK IF THIS CASE WERE
SENT BACK, FIRST OF ALL, WE
WOULD BE ABLE TO DO THE
ADDITIONAL TESTING WE ASKED FOR
AT THE EVIDENTIARY HEARING AND
WERE DENIED.
REMEMBER, WE DIDN'T -- WE
DIDN'T GET TO HAVE ANY TYPE OF
ADVERSARIAL PROCEEDING AT ALL
ON THIS FBI REPORT.
>> WOULDN'T THAT --
>> ON THIS FDLE REPORT, EXCUSE
ME.
>> ASSUMING THAT IS A DISCREET
ISSUE, WHY WOULDN'T THE BETTER
COURSE, AND I'M SURE MR.^LANDRY
HAVE A BETTER RESPONSE FOR
THAT, BE TO SIMPLY SEND BACK
RELINQUISH JUST FOR TESTING ON
THAT HAIR?
>> WELL, WE COULD DO THAT TOO.

>> THAT'S A LITTLE EASIER THAN
THE WHOLE --
>> I'M OPEN TO THAT AS WELL.
>> BUT THE HAIR'S ALREADY BEEN
TESTED.
>> IT'S BEEN TESTED ONCE BY
FDLE, BUT I DON'T KNOW --
>> INCONCLUSIVE.
>> BUT I HAVEN'T HAD AN
OPPORTUNITY TO EVEN TALK TO THE
FDLE ANALYST.
I HAVEN'T HAD A CHANCE TO GET
MY OWN EXPERT TO LOOK AT WHAT
SHE DID.
>> BUT DO YOU HAVE A RIGHT ON
POST-CONVICTION TO DEPOSE THE
DNA EXPERT?
ISN'T THAT WITHIN THE
DISCRETION OF THE TRIAL JUDGE?

>> IT IS, AND HE DENIED THAT.
>> RIGHT.
SO WHY, AND WHY IS THAT AN
ABUSIVE DISCRETION?
>> WELL, IT IS ABUSIVE
DISCRETION WHEN THE WHOLE POINT
OF THE, OF, I MEAN THE ONLY
PRONG LEFT ON A BRADY GIG LEO
CLAIM THAT IT HAS NOT BEEN
CONCEDED BY THE STATE AND THE
LOWER COURT IS THE PREJUDICE
PRONG, AND IF THAT'S THE ONLY
--
>> EXCUSE ME.
I DON'T THINK THE STATE HAS
CONCEDED THAT THE STATE
PRESENTED FALSE EVIDENCE AT
TRIAL.
IT MAY HAVE BEEN MISTAKEN.
THEY HAVE NOT CONCEDED THAT IT
WAS FALSE TESTIMONY.
>> WELL, THE LOWER COURT FOUND
THAT IT WAS FALSE IN ITS ORDER.

SAID THE TESTIMONY WAS FALSE.
>> BUT THE STATE HAS NOT
CONCEDED THAT.
>> NO, THE LOWER COURT HAS
THOUGH, YES.
>> LET'S PLAY THE, YOU KNOW,
I'M HAVING PERHAPS THE, THE
ARTICULATION WHEN YOU SAID
IMAGINE, YOU KNOW, WHAT THE
EFFECT WOULD BE OR WHATEVER,
HOW ABOUT PLAYING THAT OUT
BECAUSE I WANT YOU TO
ARTICULATE WHAT YOU BELIEVE TO
BE THE HARMFUL EFFECTS OF WHAT
OCCURRED HERE.
SO LET ME -- I'M GOING TO STATE
WHAT I BELIEVE THAT, THAT
YOU'RE ARGUING AND THEN HAVE
YOU ARTICULATE IT BECAUSE I
PROBABLY OFF BASE.
THAT IS THAT YOU'RE SAYING THAT
THE STATE PUT ON AN EXPERT THAT
TESTIFIED THAT THEY HAD TESTED
ALL THE HAIRS.
>> CORRECT.
>> AND THAT OF ALL OF THE HAIRS
TURNED OUT TO BE OF THE VICTIM
AND THERE WAS ONE HAIR POSSIBLY
THAT WASN'T, IT WASN'T -- YOU
COULDN'T -- ANY, ANYTHING
OF ANY VALUE.
ALL RIGHT BUT THAT THE OBVIOUS
VISUAL EXAMINATION OF THESE
HAIRS DEMONSTRATED THAT THE
HAIRS WERE NOT THE HAIRS OF THE
VICTIM AND WERE NOT THE HAIRS
OF THE DEFENDANT, THAT IS, THAT
THAT WAS JUST BLATANTLY OBVIOUS
IN THIS CASE.
>> CORRECT.
CORRECT.
>> AND THAT BECAUSE OF THIS
MISREPRESENTATION, THAT THEY
HAD ALL BEEN TESTED AND WERE
BELONGED TO THE, THE VICTIM,
WHEN VISUALLY THAT SEEMED NOT
TO BE POSSIBLE.
THAT THE, THAT THE PREJUDICE TO
THE DEFENDANT WAS NOT BEING
ABLE TO FORCEFULLY ARGUE THAT
THESE HAIRS HAD TO BELONG TO A
THIRD PARTY.
>> CORRECT.
>> AND IS THAT WHERE YOU ARE?
>> THAT'S CORRECT.
>> ON THIS HERE.
>> CORRECT, AND THE LOWER COURT
REALLY UNDERSTOOD THAT WHEN IT
GRANTED AN EVIDENTIARY HEARING
ON THIS CLAIM, THAT EVEN THOUGH
AGENT MALONE HADN'T DIRECTLY
IMPLICATED MR.^RHODES,
INDIRECTLY, HE HAD BECAUSE HE
SAID, AND THE STATE ARGUED IN
HIS CLOSING ARGUMENT THOUGHT
JUST BECAUSE THESE HAIRS DON'T
SHOW THAT MR.^RHODES WAS THERE,
WAS, WAS, THERE IT DOESN'T SHOW
THAT HE WASN'T THERE EITHER.
AND SO IT WAS THIS INDIRECT
IMPLICATION THAT IS THE
PREJUDICE.
MOREOVER, IT WAS ONE OF THE
ISSUES THAT WAS AGGRAVATING IN
THE CASE WAS THAT MR.^RHODES
HAD GIVEN A NUMBER OF DIFFERENT
VERSIONS OF WHAT HE THOUGHT
HAPPENED, QUITE THE
STORYTELLER.
ONE OF THOSE VERSIONS OR TWO OF
THREE OR THREE VERSIONS WAS THAT
SOMEONE ELSE WAS INVOLVED,
SOMEONE ELSE HAD ACTUALLY
COMMITTED THE CRIME.
NOW, OF COURSE, IF THIS CASE
WERE SENT BACK, WE'D DO
EVERYTHING WE COULD TO FIND OUT
IF THAT WAS IN FACT TRUE.
BUTS EVEN, EVEN IF WE DIDN'T
KNOW THAT, HAD THIS INFORMATION
BEEN DISCLOSED TO THE DEFENSE
ATTORNEY, HE WOULD'VE BEEN ABLE
TO THEY CAN -- TO MAKE THAT
ARGUMENT TO THE JURY.
>> ALL RIGHT.
DO YOU HAVE ANOTHER POINT THAT
YOU ARE GOING TO ARGUE?
YES, AND THE LAST THING I WANT
TO SAY ABOUT, AND REMEMBER AT
THE GUILT PHASE IN 1984, IT WAS
A 7-5 DEATH RECOMMENDATION,
AND THERE
REALLY WASN'T THAT MUCH
MITIGATION PRESENTED AT THE
TIME, SO THAT WAS THE ONLY JURY
THAT HEARD ALL OF THIS
EVIDENCE.
SO, AND IF YOU'LL RECALL DURING
DIRECT APPEAL IN 1984, THIS
COURT FOUND THAT THERE WAS
PREJUDICIAL CLOSING ARGUMENT,
THAT IT, THAT A FLIGHT
INSTRUCTION HAD INCORRECTLY
BEEN GIVEN TO THE GUILT PHASE
JURY SO THERE WERE OTHER ERRORS
THAT SHOULD ABOVE BEEN
CUMULATIVELY ANALYZED ALONG
WITH THIS ERROR THAT MALONE
GAVE FALSE TESTIMONY AND HE
CONTINUE TODAY GIVE FALSE
TESTIMONY AT THE EVIDENTIARY
HEARING.
>> BUT DO YOU AGREE OR
DISAGREE THAT WE DON'T KNOW
WHOSE HAIR IT WAS.
THERE IS NO EVIDENCE THAT IT
WAS OR WAS NOT THE DEFENDANT'S
OR WAS ANYBODY ELSE'S.
>> WE WEREN'T ABLE TO DO THAT
AT THE TIME OF TRIAL, AT THE
TIME OF THE HEARING BECAUSE WE
DIDN'T GOOD TO DO THE REST OF
THE CHALLENGE ON THE --
>> AGAIN, YOU SAY -- AGAIN, YOU
SAY --
>> SO WE DON'T KNOW.
>> AGAIN YOU SAY AGAIN WE DIDNíT
DO THAT.
YOU ASKED FOR DNA TESTING.
THE DNA TESTING WAS DONE AND IT
SHOWED INCONCLUSIVE TO SAY WELL
WE ASKED FOR THAT TO BE DONE
AND IT WASN'T DONE IS JUST
INCORRECT.
THE TRIAL COURT GRANTED YOUR
MOTION TO
TAKE THE DNA TEST.
>> IT DID.
IT DID.
BUT AT THE SAME TIME --
>> YOU JUST WANT TO GO FURTHER
AND THE TRIAL COURT DIDN'T
ALLOW YOU TO DEPOSE THE DNA
PERSON.
>> BUT AT THE SAME TIME, WHEN
THE FDLE RESULTS CAME BACK, WE
WEREN'T ALLOWED TO ASK
QUESTIONS OF THE EXAMINER.
>> I UNDERSTAND YOUR POSITION.

>> OR DO ANY OF THAT BUT THAT'S
DIFFERENT FROM SAYING WE
WEREN'T ALLOWED TO DO ANYTHING.

>> WELL, WE WEREN'T -- I GUESS
THE BETTER PHRASE WOULD BE WE
WEREN'T ALLOWED TO EXPLORE
EXACTLY WHAT THE CONTEXT OF THE
TESTING WAS AND WHAT THE
PARAMETERS WERE AND MY
UNDERSTANDING FROM READING THE,
THE FDLE REPORT WAS NOT THAT
THEY COULDN'T GET THE DNA
PROFILES FILES FROM THE HAIR
BUT --
>> HAVE YOU CITED TO US A CASE
WHERE WE HAVE FOUND THAT AFTER
THE TRIAL COURT GRANTS A MOTION
TO TAKE DNA TESTING THAT THE
TRIAL COURT HAS ABUSED ITS
DISCRETION AND INN DE{NIG} --
IN DENYING A MOTION TO DEPOSE
FDLE.
>> I CAN'T NAME ONE OFF THE TOP
OF MY HEAD.
>> DID YOU CITE ONE IN THE
BRIEF.
>> NO, I DON'T BELIEVE I DID.
BUT DUE PROCESS APPLIES AT
EVIDENTIARY HEARINGS AND
POST-CONVICTION.
AND JUST SIMPLY SAYING, WELL,
LOOKY HERE, WE HAVE THIS REPORT
AND THERE YOU GO.
YOU TAKE IT AT FACE VALUE.
I DON'T THINK THAT WAS WITHIN
THE MEANING OF DUE PROCESS, AT
AN EVIDENTIARY HEARING.
THE WHOLESALE {PURLS} IS TO
HAVE AN ADVERSE AIR AL-- WHOLE
PURPOSE IS TO HAVE AN
ADVERSARIAL TESTING OF THE
EVIDENCE AND IF ONLY ONE SIDE
GETS TO DO THE TESTING AND GETS
TO CONTROL THE RESULT AND GETS
TO CONTROL REALLY THE
DISCUSSION, ON TESTING, THEN I
THINK THAT --
>> WOULD YOU OBJECT TO THE FACT
THAT THE TRIAL COURT ORDERED
THE TESTING TO BE DONE BY FDLE?

>> NO, BECAUSE IT'S, IT'S
MANDATED IN THE RULE THAT FDLE
HAS TO AT LEAST DO IT THE FIRST
TIME.
BUT THE RULE ALSO GIVES THE
COURT THE DISCRETION TO ALLOW
ADDITIONAL TESTING AT THE
DEFENDANT'S OWN EXPENSE, WHICH
WE REQUESTED AND WERE DENIED.
SO IF THE, IF THE WHOLE PURPOSE
OF THE EVIDENTIARY HEARING WAS
TO GET DUE PROCESS AND TO FIND
THE ANSWER TO THE QUESTION.
>> WELL, LET ME GET TO THE
BOTTOM LINE.
MALONE TESTIFIED THAT FORENSIC
TESTING FOUND THAT QUOTE THERE
WERE NO FOREIGN HAIRS AT -.
>> CORRECT.
>> DO WE HAVE ANY EVIDENCE THAT
THERE WAS A FOREIGN HAIR?
>> WELL, THERE WERE OBVIOUSLY
SOME QUESTIONS ABOUT THAT.
WITH THE FACT THAT THERE WAS A
BLONDE HAIR CLUTCHED IN HER
HAND.
BUT.
>> ANSWER MY QUESTION.
DO WE HAVE ANY EVIDENCE THAT
THERE WAS A FOREIGN HAIR?
AFTER ALL THE TESTIMONY.
>> FROM HIS TESTIMONY, NO BUT
WE DON'T KNOW THAT TO BE THE
CASE.
NONE OF THIS STUFF WAS TESTED.

NONE OF THE EXHIBITS WERE
TESTED.
THAT'S THE PROBLEM.
SO WE DON'T KNOW WHAT WAS
THERE.
>> THE ARGUMENTS WERE AVAILABLE
WHETHER IT WAS TESTED OR NOT.
THIS BLONDE HAIR DOESN'T MATCH
EITHER ONE OF THEM.
>> CORRECT.
AND THERE WERE FIBERS AS WELL.

>> WELL, I MEAN, WAS THAT
ARGUMENT AVAILABLE TO BE MADE?

AND WAS IT MADE?
>> WELL, I, I DON'T THINK THAT,
I DON'T THINK THAT, YOU MEAN AT
TRIAL?
>> YEAH.
>> WELL, I THINK TRIAL COUNSEL
ASSUMED THAT MR.^MALONE WAS
TELLING THE TRUTH WHEN HE SAID
HE TESTED EVERYTHING.
>> THE ANSWER -- REALLY GOING
REALLY INTO YOUR REBUTTAL.
>> ALL RIGHT, I'LL RESERVE THE
REST FOR REBUTTAL.
>> DO YOU HAVE ANOTHER POINT.
>> YES, I WILL TALK THE
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM AT RESENTENCING
BASICALLY THERE ARE THREE CASES
THAT CONTROL HERE.
WIGGINS AND WILLIAMS.
THE DEFENSE ATTORNEY ONLY
PLANNED TO CALL ONE WITNESS AND
THE DEFENSE, THE DEFENDANT WAS
FORCED TO CHOOSE HIS OWN
MITIGATION WITNESSES.
THERE'S ABSOLUTELY NO
INVESTIGATION.
NO INVESTIGATOR.
SO BASICALLY, NO MORE EXCUSES
UNDER ROM PELLA WOULD BE MY
ARGUMENT.
THANK YOU.
>> MAY IT PLEASE THE COURT, BOB
LANDRY APPEARING ON BEHALF OF
THE STATE OF FLORIDA.
MIKE MALONE, I WOULD LIKE TO
TURN FIRST TO HIS TRIAL
TESTIMONY.
MALONE TESTIFIED THAT HE
EXAMINED THE MATERIAL THAT WAS
SENT OUT BY FDLE.
AND THAT THE HOUSE THAT HE
EVALUATED AND EXAMINED WERE
EITHER THE VICTIM'S HAIRS OR
THEY WERE, THEY WERE TOO
INSUBSTANTIAL FOR COMPARISON.
AND HE ALSO TESTIFIED THAT
THERE WERE NO FOREIGN HAIRS.
>> THAT'S WHAT HE TESTIFIED AT
TRIAL.
>> AT TRIAL.
AT TRIAL.
DURING TRIAL HE WAS ALSO ASKED
TO OPINE --
>> DID HE ALSO.
DID HE SAY THAT HE HAD TESTED
ALL THE HAIRS THAT WERE IN THE
VICTIM'S HANDS?
>> WELL, HE WAS, HE WAS ASKED
ABOUT THE, THE HAIRS IN THE
HANDS AS WELL.
>> THAT'S -- BUT TO ME, AGAIN,
HAIRS ALL AROUND, IT'S A MOTEL
THAT JUST GOT, YOU KNOW, IT'S
ONE THING.
I WANT TO JUST, IF WE CAN, JUST
LET ME FOCUS ON THE HAIRS IN
THE HANDS.
DID HE TESTIFY THAT ALL THE
HAIRS IN THE HANDS WERE THE
VICTIM'S?
>> HE, YES, HE TESTIFIED, WELL,
HE, HE DESCRIBED, I THINK HE
SAID THERE WERE TWO HAIRS IN
ONE HAND AND A COUPLE OF HAIRS
IN THE OTHER.
>> AND HE HAD TESTED THEM ALL
AND THEY WERE ALL THE VICTIM
IF?
HIS TRIAL TESTIMONY.
>> RIGHT, TRIAL TESTIMONY.
>> HIS TRIAL TESTIMONY WAS THAT
THEY WERE THE VICTIM'S HAIRS.
>> RIGHT AND WE NOW KNOW THAT
THAT'S FALSE THAT HE HADN'T
TESTED ALL THE HAIRS.
THAT'S WHAT THE JUDGE FOUND?
RIGHT?
THAT IT WAS FALSE WELL, THE
JUDGE STATED IN HIS ORDER THAT
MALONE ADMITTED TO GIVING FALSE
TESTIMONY.
I DON'T AGREE THAT HE --
>> WAS THERE, WAS THE BLONDE
HAIR TESTED AT THE TIME OF THE
TRIAL?
>>.
>> THE, THE HAIRS, THE, THE
ALLEGED BLONDE HAIRS AS I
RECALL WAS IN THE RIGHT HAND,
AND HE SAID THAT THAT WAS THE
VICTIM'S.
>> YOU KNOW, THIS SHOULD BE
SIMPLE IF THERE'S NOT A LOT OF
HAIR IN THE HAND.
I AM TRYING TO FIND OUT WHAT
WAS SAID OR NOT SAID AT TRIAL
ABOUT THE BLONDE HAIR CLUTCHED
IN THE HAND.
ALL RIGHT?
TESTED OR UNTESTED BY
MR.^MALONE IN FACT NOT IN WHAT
HE TESTIFIED AT TRIAL.
>> AT TRIAL, NO ONE DESCRIBED
IF AS BEING BLONDE HAIR OR NOT
A BLONDE HAIR.
>> THE HAIR THAT WE'RE NOW
REFERRING TO IS THE BLONDE
HAIR.
DID HE SAY HE HAD TESTED THAT
HAIR AND IT WAS THE VICTIM'S?
>> I CAN ONLY SAY WHAT HIS
TESTIMONY WAS AT TRIAL.
HIS TRIAL TESTIMONY WAS THAT
THE HAIRS IN BOTH OF HER HANDS
WERE THE VICTIM'S.
>> OKAY.
AND, AND NOW HASN'T THE
DEFENDANT ESTABLISHED THAT THAT
TESTIMONY, THAT IS THAT ALL THE
HAIRS WERE TESTED AND ALL THE
HAIRS WERE THE VICTIM'S IS
FALSE TESTIMONY?
>> NO, WELL, I DON'T THINK SO.

I THINK, I THINK THE, THE
MALONE CONTINUED TO TESTIFY AT
THE EVIDENTIARY HEARING THAT HE
EXAMINED ALL THE HAIRS, AND HE
PUT LIKE 63 HAIRS ON A SLIDES
OR THE HAIRS WERE PUT UNDER
SLIDES FOR HIM TO REVIEW.
AND HE LOOKED AT ALL OF THEM.
NOW, I THINK THE DISCREPANCY,
IF YOU WANT, IN THE TESTIMONY,
IS THAT THERE ARE APPEAR TO BE
A LOT OF HAIRS IN THE BAG IN
THE CLERK'S POSSESSION, BUT NO
ONE ASKED MALONE ABOUT --
>> I DON'T CARE -- RIGHT NOW I
AM JUST TRYING TO STICK TO THE
HAND BECAUSE THAT'S WHAT
TERRI, MR. BACKUS REFERRED TO
AND I CAN GET MY ARMS AROUND
THAT.
IT SEEMS TO ME SOMEWHAT
SIGNIFICANT THAT IF THE HAIR IN
THE HAND WAS BLONDE AND IT
WASN'T TESTED, AND EVEN IF IT'S
NOW AT THE BEST FOR THE STATE
INCONCLUSIVE, THAT'S, THAT'S
DIFFERENT, THAT'S FALSE, THAT
MEANS THAT MR.^MALONE TESTIFIED
FALSELY AT TRIAL.
IF HE TESTIFIED FALSELY, THEN
JILLIO HAS A DIFFERENT STANDARD
ON WHAT WE APPLY, WHICH IS WE
HAVE TO DECIDE WHETHER THE
FALSE TESTIMONY WAS HARMLESS
BEYOND A REASONABLE DOUBT.
THAT'S WHY I'M CONCERNED, AND
AGAIN, I WASN'T AS CONCERNED
UNTIL -- YOU GOT TO HELP ME
CORRECT ME OF WHERE I'M WRONG,
WHICH IS THAT CERTAINLY I WOULD
THINK THAT A AT TRIAL, IF THE
DEFENSE LAWYER HAD KNOWN THIS
BLONDE HAIR WAS,
OR THAT IT -- UNTESTED OR THAT
IT CAME BACK INCONCLUSIVE, THEY
WOULD'VE JUMPED ON THE
OPPORTUNITY TO ASK THE JUDGE
FOR MORE TESTING TO ESTABLISH
IF THIS WAS NEITHER THE
VICTIM'S OR NOR THE DEFENSE'S
-- DEFENDANT'S, THEN THAT COULD
BE POWERFUL TESTIMONY.
THAT COULD START TO RAISE A
DOUBT THAT THERE MIGHT HAVE
BEEN SOMEONE ELSE THERE BECAUSE
HAND HAIR CLUTCHED IN THE HAND
MEANS THAT IT PROBABLY HAPPENED
CLOSE IN TIME TO THE MURDER.
SO HELP ME WITH THAT SCENARIO.

WHAT'S WRONG WITH WHAT I JUST
SAID?
>> WELL, MY UNDERSTANDING OF
MALONE'S TESTIMONY AT TRIAL IS
THAT HE EXAMINED THE HAIR IN
BOTH HANDS, AND IT WAS THE
VICTIM'S HANDS -- IT WAS -- THE
HAIR BELONGED TO THE VICTIM'S.

WHEN HE CAME TIME FOR THE
EVIDENTIARY HEARING, HE, HE
NOTICED THAT HE HAD MADE A
MISTAKE IN HIS TESTIMONY, AND
THE MISTAKE, THE ONLY MISTAKE
THAT HE ADMITTED TO WAS THAT
THE HAIR IN THE, IN THE
RIGHT HAND WAS STILL THE
VICTIM'S BUT THAT THE HAIR IN
THE LEFT HAND SHOULD BE
INCONCLUSIVE OR NOT SUITABLE
ENOUGH FOR COMPARISON.
SO THAT'S THE ONLY, THE ONLY
ALTERATION.
>> HOW MANY HAIRS WERE IN THE
LEFT HAND?
>> I THINK THERE WERE, I DON'T
KNOW, I THINK HE SAID TWO OR
THREE OR SEVEN.
>> DOES THAT STRIKE YOU, IF
YOU'RE LIKE THE TRIAL JUDGE
LISTENING TO THIS, THAT THE
ONLY, HE SAYS THEY'RE ALL THE
VICTIM'S IN THE LEFT HAND, BUT
ONE HAIR OF -- SO WE ARE NOT
TALKING ABOUT THOUSANDS OF
HAIRS OR 60 HAIRS.
THAT THE ONE HAIR THAT'S
INCONCLUSIVE AND WASN'T TESTED,
WHICH HE MADE A MISTAKE ON, SO
HE SAYS, WAS A BLONDE HAIR?
WOULDN'T THAT BE THE FIRST
THING THAT EVERYBODY WOULD WANT
TO SEIZE ON?
>> WELL, I MEAN, THE HAIRS THAT
WERE -- THAT WERE INTRODUCED, I
MEAN, THEY WERE AVAILABLE FOR
EVERYBODY TO LOOK AT FOR THE --

>> NOW THAT MAY BE ANOTHER
ISSUE THAT THIS SHOULD'VE BEEN
RAISED AND FOUND EARLIER BY THE
DEFENDANT AS INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
BUT WE'RE NOT HERE ON, I DON'T
-- WE DIDN'T --
>> WELL, THE TRIAL COURT MADE
NO, MADE A FINDING THAT, THAT
THE DEFENDANT HAD FAILED TO
DEMONSTRATE THAT THERE WAS ANY,
ANY HAIR OTHER THAN THE
VICTIM'S AT THE HEARING.
I MEAN, THEY DIDN'T PUT ON ANY
EXPERT TESTIMONY.
>> THIS QUESTION, WHICH I
UNDERSTAND THAT DISCOVERY IS
GENERALLY A BASED ON ABUSIVE
DISCRETION, BUT IF IT'S
INCONCLUSIVE AND IF THE
DEFENDANT SAYS I NEED TO FIND
OUT A LIT BIT MORE ABOUT THIS
SO I CAN LIKE, IF IT HAD
HAPPENED AT TRIAL, CERTAINLY A
JUDGE WOULD'VE ALLOWED INQUIRY
IF HERE IT IS THE STATE HAS
SAID SOMETHING, WHICH IT WAS
ALL TESTED AND IT WASN'T, WHY
WOULDN'T FURTHER INQUIRY BE
APPROPRIATE?
SO WE CAN GET TO THE BOTTOM OF
THIS.
>> WELL, AT THE HEARING AT THE
-- FOLLOWING THE END OF THE
TESTIMONY AT THE HEARING, THE
JUDGE INQUIRED WHAT NEEDS TO BE
DONE IN TERMS OF DNA OR WHAT'S
PROGRESS ON THAT.
AND AS I UNDERSTAND
MS.^BACKUS'S RESPONSE WAS I
DON'T THINK BASICALLY THAT
ANOTHER EVIDENTIARY HEARING IS
NEEDED ALONG THAT LINE UNLESS
SOMETHING COMES IN, WHICH IS
WAY OUT OF LEFT FIELD IN TERMS
OF REPORT BUT I'LL LEAVE THAT
UP TO YOU, JUDGE.
I'LL LEAVE THAT UP TO YOU TO
DECIDE WHETHER WE NEED ANOTHER
HEARING.
WHEN THE FDLE REPORT DID
FINALLY COME IN, AND IT IS
BASICALLY INCONCLUSIVE, THAT
THERE'S NO DNA ON THIS HAIR,
AND THAT'S THE ALLEGED BLONDE
HAIR IS ONE OF THE ITEMS THAT,
THAT WAS LOOKED AT.
>> WHEN YOU SAY ALLEGED BLONDE
HAIR, I MEAN, IS THERE A BLONDE
HAIR THAT'S THERE OR IS THERE
NOT?
>> WELL WE HAVE MS.^BACKUS
SAYING IT'S A BLONDE HAIR.
>> OKAY.
SO YOU SAY THAT'S IN DISPUTE
THEN.
>> WELL, I MEAN, THE JUDGE, THE
JUDGE SAID IN HIS ORDER, I'M
NOT A HAIR EXPERT AND WE
HAVEN'T HEARD FROM ANY EXPERT
AS TO WHETHER OR NOT PEOPLE CAN
HAVE DIFFERENT COLORED HAIR.
>> DID SOMEBODY IN THE RECORD
DESCRIBE THIS AS A BLONDE HAIR?

BESIDES --
>> I'M NOT CERTAIN WHETHER
CLERK TERESA CRAFT TESTIFIED
ABOUT THE EXHIBITS THAT SHE HAD
IN HER THING.
I DON'T KNOW WHETHER SHE
DESCRIBED IT AS A BLONDE HAIR.

THE RECORD WILL HAVE TO
REFLECT.
>> YOUR OPPONENT HAS
PHOTOGRAPHS.
WERE THESE PHOTOGRAPHS
INTRODUCED AT ANY OF THE
HEARINGS?
I DON'T RECALL WHETHER THEY
WERE INTRODUCED OR NOT.
>> ARE YOU CONCLUDING THE
PHOTOGRAPHS SHE DISPLAYED ARE
-ARE NOT TRUE REPRESENTATIONS
OF WHAT WAS THERE?
>> NO, I DON'T KNOW, I DON'T
KNOW WHETHER OR NOT THEY WERE
INTRODUCED AS EXHIBITS IN THE
RECORD OR NOT.
I'LL HAVE TO LET THE RECORD
REFLECT.
>> HELP US WITH WHAT YOU DO
HAVE IN THE RECORD EITHER BY
WAY OF TESTIMONY OR BY WAY OF
PHOTOGRAPHS, YOU KNOW,
WE HAVE WHAT ON ITS FACE SEEMS
TO BE SORT OF A LOGICAL
ARGUMENT, THAT IS, MY
GOODNESS,, YOU KNOW, THIS WAS
A, A, A VICTIM WAS BLONDE.
AND THE HANDS, THE HAIR IN HER
HANDS WAS A BIG WAD OF BLACK
HAIR.
OKAY?
AND YET THE TESTIMONY WAS THAT
THIS BIG WAD OF BLACK HAIR
BELONGED TO THE VICTIM WHO WAS
BLONDE.
AND THERE'S SOMETHING
INCONGRUOUS ABOUT, YOU KNOW,
WHAT'S GOING ON HERE, AND ALL
WE'RE REALLY ASKING IS FOR A
LOGICAL EXPLANATION TO RESOLVE
WHAT ON ITS FACE SEEMS TO BE AN
INCONGRUITY.
SO HELP, HELP US.
>> WELL, I THINK THE ONLY
INCONGRUITY IS THAT THERE IS,
ACCORDING TO THE DEFENSE, A
BLONDE HAIR IN, IN THE VICTIM'S
HAND.
>> BUT ARE WE TALKING ABOUT A
BLONDE HAIR?
OR ARE WE TALKING ABOUT A WHOLE
WAD OF HAIRS?
>> NO, NO I THINK, WELL, I, I
UNDERSTOOD THAT SHE WAS TALKING
ABOUT THAT THERE WAS A BLONDE
HAIR.
>> SO WE'RE JUST TALKING ABOUT
SINGLING STRAND OF HAIR?
>> THAT IS BLONDE.
THAT, THAT'S WHAT HER, I
UNDERSTAND HER COMPLAINT TO BE
THAT THERE IS A SINGLE BLONDE
HAIR AND HOW COULD A BLONDE
HAIR COME FROM A DARK-HAIRED
WOMAN.
>> AND WHAT, AND WHAT HE
TESTIFIED TO IS THAT THAT HAIR
WAS NOT SUITABLE FOR
COMPARISON, IS THAT CORRECT?
>> UH.
>> THAT WAS THE MISTAKE.
>> NO, NO.
I THINK HE TESTIFIED THAT THIS
HIS MISTAKE WAS THAT THE
HAIR IN THE LEFT HAND WAS NOT
SUITABLE FOR COMPARISON BUT THE
HAIR IN THE RIGHT-HAND HAND WAS
MICROSCOPICALLY
INDISTINGUISHABLE FROM THE
VICTIM, FROM THE DEFENDANT.
>> IN THE RIGHT HAND.
>> YES, SIR.
>> SO HOW DID HE TESTIFY?
I'M CONFUSED HERE.
IS THERE A DIFFERENCE HERE, ONE
THAT WAS NOT SUITABLE FOR
COMPARISON AND THE BLONDE HAIR,
ARE THEY TWO DIFFERENT
HAIRS?
>> IS TESTIMONY AT THE
EVIDENTIARY HEARING WAS I
MADE AS IN TRIAL TESTIMONY
WHEN I SAID LEFT HAND WERE
ALSO THE VICTIM'S HAIRS AS
SHOULD HAVE BEEN UNSUITABLE
FOR
TALKING ABOUT SO-CALLED
BLONDE A HAIR.
>> NO I THINK THE -- THE
THAT -- THAT HAIR WAS ON THE
RIGHT HAND WHICH HE --
MAINTAINED BELONGED TO THE
VICTIM.
>> I THINK YOU GUYS ARE
PASSING IN THE NIGHT I DON'T
THINK YOU ARE RESPONDING TO HIS
QUESTION.
LET'S START AT THE
BEGINNING.
>> HOW MANY HAIRS IN
QUESTION.
>> AS I UNDERSTAND HIS
TESTIMONY I THOUGHT HE SAID
THAT THERE WERE A FEW HAIRS
IN THE LEFT AND RIGHT HAND,
I WILL HAVE TO RELY ON THE
TESTIMONY, THAT --
>> THERE IS ONLY ONE HAIR
THAT WHERE INCONCLUSIVE Q-13
ONE STRAND OF HAIR.
>> THE ONE APPARENTLY
DESCRIBED AS BLONDE HAIR.
>> THAT WAS THE ONE THAT HE
THAT WAS NOT TESTED OR THAT
WAS INCONCLUSIVE HE SAID ALL
AT TRIAL ALL THE STRANDS OF
HAIR WERE FROM THE VICTIM'S
HANDS, AND AT THE
EVIDENTIARY HEARING HE SAID
WELL NO, THERE IS ONE
STRAND OF HAIR INCONCLUSIVE
THAT IS THE ONE WE ARE
TALKING ABOUT THEY DON'T
THINK SO I THINK HE WAS
TALKING ABOUT THE HAIR IN
THE LEFT HAND WAS BEING
UNSUITABLE FOR COMPARISON
BUT THAT THE HAIRS IN THE
RIGHT HAND -- -- HE -- HE
THAT HAIR BELONGED TO
VICTIM.
>> WHAT IS YOUR
UNDERSTANDING OF WHERE THE
TRIAL COURT SAYS ON PAGE 11
OF THE TRIAL COURT'S ORDER,
THAT THE THAT THE DEFENDANT
HAS NOT SHOWN THAT THE HAIR
BELONGED TO ANY ONE BESIDES
THE VICTIM WHAT IS YOUR
UNDERSTANDING WHAT HAIR THE
TRIAL JUDGE IS REFERRING TO?
>> I THINK HE IS PROBABLY
REFERING TO THE ALLEGED
BLONDE HAIR, I THINK HE
MAILS BE I DON'T KNOW IF HE
IS ALLUDING TO FDLE REPORT
BECAUSE APPARENTLY A LOT OF
TESTING WAS DONE WHICH ALL
CAME BACK INCONCLUSIVE.
>> DOES THE FDLE REPORT
REFER TO THIS AS A BLONDE
HAIR.
>> NO THE FDLE REPORTS TO IT
HERE IS A IN THE LEFT HAND
HAIR IN THE RIGHT HAND,
MICROSCOPIC SLIDES, GIVES --
IF YOU MEAN
OOE NUMBERS HOW FDLE REPORT
DID IT WHAT THE RESULTS
WERE.
>> I STILL COME BACK, TO THE
FACT IS, WHERE -- WHAT
RECORD LABELING OF THE HAIR
-- LABELS AS ANY OF THE HAIR
AS A A BLONDE HAIR?
IN THE RECORD SOME WITNESS?
OR CAN YOU -- SOME EXHIBIT?
>> HE -- WELL ON THE FDLE
REPORT WHICH I BELIEVE IS
RECORD 6, 930 AND 931, IT
TALKS TO ABOUT THERE IS A
WHOLE LIST IT TALKS ABOUT
SLIDE FROM Q-TEN HAILED HAIR
FROM THE RIGHT HAND, AND
BELOW THAT SLIDE FROM Q15
HAIR FROM ON THE BODY AND IS
THERE IS ANOTHER PART, Q-13
HAIR FROM THE LEFT HAND.
AND THEY GIVE THEIR OWN
IDENTIFICATION NUMBERS FOR
THAT.
.
>> SO WHAT DID HE TESTIFY AT
TRIAL AS TO WHOSE CHAIR Q-13
WAS?
THAT SO CALLED BLONDE HAIR;
CORRECT?
>> HIS TESTIMONY AT TRIAL
WAS THAT THAT THE HAIR IN
BOTH HANDS OF THE VICTIM
BELONGED TO THE VICTIM AND
HE CORRECTED THAT AT OF THE
EVIDENTIARY HEARING SAYING I
MISSPOKE THAT THE HAIR IN
THE LEFT HAND THE HAIR IN
THE RIGHT HAND WAS HERSELF
THE HAIR IN THE LEFT HAND
WAS UNSUITSABLE FOR
COMPARISON.
>> IS THAT Q-13 HE IS SAYING
UNSUITABLE FOR COMPARISON.
>> PRESUMABLY -- -- NO, NO,
Q-13, CAME FROM THE RIGHT
HAND.
.
>> NO IQ-13 CAME FROM THE
LEFT HAND Q-TEN FROM THE
RIGHT HAND, BUT HIS TRIAL
TESTIMONY WAS BOTH HAIRS
WERE FROM THE VICTIM, HE
ALSO TESTIFIED THERE IS NO
DEFENSE HAIR AT
ALL BASICALLY OH, NO DEFENSE
HAIR IT MIGHT BE POINTED OUT
THAT THE DEFENSE ATTORNEY AT
TRIAL WAS BASICALLY GLEEFUL
WITH MALONE'S TESTIMONY HE
COULDN'T INCULPATE DEFENDANT
HE ASKED HIM A COUPLE OF
QUESTIONS SAYS BASICALLY YOU
CAN'T HELP US OUT HERE YOU
CAN'T EXPLAIN ANYTHING --
THAT AATTACHES TO MY CLIENT.
>> BUT ISN'T THAT AGAIN LET
ME GO BACK TO HOW IT COULD
BE USED, AGAIN WE HAVE TO
LOOK AT THE -- YOU KNOW, WAS
IT HARMLESS BEYOND A
REASONABLE DOUBT IF WE
ASSUME THE FIRST TWO PRONGS
WERE MET.
IT SEEMS TO ME THAT IF AND
THIS IS WHAT I'M JUST STILL
STRUGGLING WITH IS THAT
INSTEAD OF IT BEING ALL THE
HAIRS OF THE VICTIM'S HERE
IS A WHY HE CAN'T HELP HIM
OUT, DOESN'T HAVE ANYTHING
BEING THE DEFENDANT'S HAIR
IT STILL IS A STEP MORE --
POSSIBLY GOES TO
ESTABLISHING REASONABLE
DOUBT IF YOU GO, AND NOW,
WHAT YOU FOUND WAS ONE OF
THE HAIRS IN THE VICTIM'S
HANDS WHO TESTED WAS
INCONCLUSIVE COULD YOU -- YOU
CAN'T SAY IT WAS VICTIM'S
HAIR OR CLIENT'S HAIR IT
COULD HAVE BEEN SOMEONE
ELSE'S HAIR ISN'T THAT
CORRECT, YEAH I GUESS SO
ISN'T IT CORRECT THAT THAT
-- HAIR IS -- BLOND IN
COLOR, AND THAT A HAIR
DOESN'T MATCH THE VICTIM OR
MY CLIENT?
ISN'T THAT CORRECT MR. --
>> YES.
>> NOW, I CAN ARGUE TO THE
JURY THAT THERE IS A FOREIGN
HAIR THAT ISN'T THE
DEFENDANT'S OR THE VICTIM'S,
AT LEAST NOT CONCLUSIVELY,
THAT IS THERE, DO I START TO
GET A POSSIBILITY OF
REASONABLE DOUBT?
THAT IS WHAT WE ARE JUST
THAT IS WHAT I'M TRYING TO
GET TO THE -- FOR ME,
EVERYONE ELSE MIGHT HAVE A
DIFFERENT WAY OF LOOKING AT
THIS BUT THAT IS -- HOW I'M SEEING
THIS THING.
>> SOMEONE HAD ASKED MALONE
WHAT ABOUT THIS ISN'T THIS A
BLONDE HAIR HE MIGHT HAVE
BEEN ABLE TO EXPLAIN THAT,
IT ITS REALLY NOT BLOND HAIR
IT IS BROWN WHATEVER.
>> INSTEAD OF BEING IT WAS
ALL VICTIM'S HAIR
INCONCLUSIVE WHOSE
IT IS,
INSTEAD OF NOW WE HAVE A
QUESTION AND IT IS, OF WELL
WAIT A SECOND, IT MIGHT BE
SOMEONE ELSE, THAT LAWYER
COULDN'T MAKE THAT ARGUMENT,
AT THE TIME OF THE ORIGINAL
TRIAL.
.
>> WELL, BUT THE HE HAD HE
HAD THE ARGUMENT AT TRIAL,
WHICH HE UTILIZED, AND THAT
IS THERE IS NO HAIR OF MY
CLIENT -- SO -- WHAT IS A
BIG DEAL ON THIS.
>> THE BIG DEAL IS AS WE
ALWAYS LOOK AT THESE
CLUTCHED IN THE HAHNED
CASES, WHEN WE THINK IT IS A
BIG DEAL IS THAT IT IS A
PRETTY BIG DEAL FIRST OF ALL
CERTAINLY A BIG DEAL TO THE
STATE IF WHAT IS CLUTCHED IN
THE HAND IS THE DEFENDANT'S
HAIR.
THAT IS A PRETTY BIGGING I
SLAM-DUNK FOR THE STATE.
SO THAT IS BIG DEAL.
ALL RIGHT SO THAT IS GOOD
WHEN IT FOR THE DEFENDANT
WHEN IT IS NOT THE DEFENDANT
-- IT IS A PRETTY BIG DEAL
IN TERMS OF ITS JUST
VICTIM'S HAIR THAT MEANS IT
DOESN'T I MEAN ANYTHING,
STILL NOT -- HOW IT GOT THERE SHE
WAS BRUSHING HER HAIR OR
SOMETHING.
NOW WE'VE GOT THERE IS A
HAIR THAT IS UNDETERMINED IN
THERE, AND AGAIN, THIS IS
WHERE IT IS A LITTLE
DISCONCERTING, NOT TO KNOW
IF IT IS BLONDE OR NOT BUT
LET'S FOR THE SAKE OF THIS
ARGUMENT, MR. -- BACKUS IS
GOING TO HAVE TO GIVE US HOW
WE KNOW IT IS BLONDE BUT
LET'S JUST SAY IT IS THAT
SHE IS CORRECT IT IS A
BLONDE HAIR.
NOW, IT BECOMES A BIGGER
DEAL IF THE DEFENDANT'S HAIR
ISN'T BLONDE, AND IT IS
INCONCLUSIVE DO YOU NOT SEE
THE QUALITATIVE DIFFERENCE
OF THOSE THREE --
>> I DON'T SEE DIFFERENCE AS
IT AFFECTS THIS DEFENDANT
BECAUSE THERE IS NO HAIRS,
OF THE DEFENDANT, IMPLICATED
AT THE CRIME SCENE AT THAT
YOU WILL REMAINS THE SAME.
THE EVIDENCE NOW, WITH
RESPECT TO THE DEFENDANT IS
SAME AS AT TRIAL WHICH THAT
IS HIS HAIR ISN'T ANYWHERE
NEAR IT ISN'T, ASSOCIATED
WITH THIS CASE SO THE STATE
HAD TO BUILD ITS
CHIROPRACTORS PROGRESSIVE
-- KACE WITH OTHER EVIDENCE
-- DOESN'T AFFECT HIM AT
ALL, THE --
>> YOU DIDN'T HURT HIM YOU
ARE TAKE ISSUE THAT IT
DOESN'T HELP THINK WHERE MR.
MISS BACKUS WOULD SAY NO, IT
HELPS HIM I'M SEEING HOW I
COULD SEE, THAT IT HELPS
HIM, SO, YOU ARE NOT
CONCEDING OR AGREEING THAT
IT COULD POSSIBLY HELP HIM.
>> IT DOESN'T HELP HIM ANY
MORE THAN WHAT HE ALREADY
HAD AT TRIAL TO WIT THE
DEFENSE CAN ARGUE, MY CLIENT
ISN'T ASSOCIATED WITH THIS
THERE IS NO DISPUTE.
>> I GUESS WE CAN GO AROUND
AND AROUND DON'T YOU SEE
BEING ABLE TO SAY NOT ALL
THE VICTIM'S HAIR IS BETTER
FOR THE DEFENDANT, THAN IT
IS ALL THE VICTIM'S HAIR?
>> I DON'T THINK -- WELL --
WE STILL DON'T KNOW THAT IT
IS NOT THE VICTIM'S HAIR BUT
I DON'T SEE THAT THAT THAT
THERE IS ANY -- REACHES THE
MATERIALITY PRONG THAT IS.
>> WHAT THAT'S WHAT TRIAL
JUDGE FOUND HE SAID WITHOUT
EXPERT OPINION INDICATING A
PERSON CAN ONLY HAVE ONE
HAIR COLOR AT A TIME THE
COURT FINDS ARGUMENT
UNPERSUASIVE BECAUSE THERE
WAS NO EVIDENCE THAT THE
HAIR WAS ANYTHING OTHER THAN
THE -- WE DON'T KNOW WHOSE
HAIR IT WAS CORRECT.
>> FROM THE DNA TESTING --
THERE IS NO -- IT IS ALL
INCONCLUSIVE NOT SHOWN.
>> IS THAT BECAUSE THERE WAS
NO DNA?
>> -- SUITABLE FOR TESTING
OR WHAT IS THE
INCLUSIVE -- --
>> REPORT OF FDLE BASICALLY
SAYS NO DNA RESULTS WERE
OBTAINED FROM A EXHIBIT --
1I6789A, 84 AND 2 WHICH IS
THE HAIR FROM THE RIGHT
HAND, 8402, HAIR FROM THE
LEFT HAND, Q-13 SLIDES -- SO
BASICALLY --
>> NO DNA THERE WASN'T A
ROOT OR SOMETHING IS THERE
THEY COULD GET DNA FROM?
>> THEY APPARENTLY TESTED
SOMETHING BUT COULDN'T FIND
ANY DNA.
>> WITH OUR ASSISTANCE YOU
HAVE WELL WILL EXCEEDED YOUR
TIME SO WILL YOU BRING YOUR
ARGUMENT TO CONCLUSION
PLEASE.
>> WOULD I JUST LIKE TO
POINT OUT THAT DEFENDANT HAS
ARGUED RELIED ON HOFFMAN, IN
THIS CASE, TO SHOW THAT
ERROR WAS COMMITTED LIKE TO
POINT OUT THE COURT
DISTINGUISHED HOFFMAN IN THE
ALLEN CASE 8547 SECOND 125 A
ASIDE FROM THAT -- MATTER OF
FACT, CLAIM WE SUMMIT THAT
THE EVIDENCE AT THE
EVIDENTIARY HEARING
CUMULATIVE, TRIAL COUNSEL
WAS NOT DEFICIENT, THANK
YOU.
>> MISS BACKUS?
>> --
>> MY 34 SECONDS.
>> -- I DIRECT THE COURT'S
ATTENTION TO PAGE 49, AND 50
OF THE INITIALLY BRIEF THAT
IS WHERE I QUOTE DIRECTLY
FROM AGENT MALONE'S
TESTIMONY THAT HE TESTED
EACH AND EVERY STRAND, I
ALSO -- DIRECT.
>> WHAT IN THE RECORD THAT
SHOWS THIS IS A BLONDE HAIR?
>> I PRESENTED IT THROUGH
THE DEPUTY CLERK TERESA
CRAFT,
>> AND WHERE IS THAT, COULD
YOU GIVE US THE RECORD THAT
RECORD?
>> I DON'T HAVE THAT IN
FRONT OF ME I WOULD BE HAPPY
TO SUMMIT THAT AS A
SUPPLEMENTAL --
>> IN YOUR BRIEF?
>> YES.
>> PHOTOGRAPHS ENTERED INTO
EVIDENCE --
>> THESE PHOTOGRAPHS
THEMSELVES WERE NOT PETHE
EXHIBITS THEMSELVES WERE.
SO THESE ARE PICTURES OF THE
EXHIBITS AS THEY WERE
ENTERED INTO EVIDENCE, THIS
IS STATE'S EXHIBIT AAND B,
WHICH, 13A AND B, WHICH IS A
COMPOSITE HAIR SAMPLES FROM
THE LEFT SIDE LEFT SIDE OF
VICTIM,ENTERED INTO
EVIDENCE, AUGUST 19, '85,
THIS IS STATE'S EXHIBIT 10A,
AND B, COMPOSITE HAIR
SAMPLES, FROM VICTIM'S RIGHT
HAND.
>> WAS THERE AN ARGUMENT
MADE, AT THE TRIAL THAT THIS
HAIR THAT WE ARE TALKING
ABOUT HERE WAS BLONDE?
>> THEY DIDN'T THEY DIDN'T.
>> THERE WAS NO ARGUMENT
MADE ABOUT THIS HAIR.
>> YOU THEY DIDN'T, THEY
RELIED COMPLETELY ON AGENT
MALONE'S TESTIMONY.
>> THERE WAS NO ARGUMENT A,
THOUGH, THAT LOOK, WE ARE --
REGARDLESS WHAT AGENT MALONE
TESTIFIED THIS HAIR AS YOU
JUST ARGUED HERE THIS
MORNING WAS OBVIOUSLY FROM A
DIFFERENT PERSON?
THAT ARGUMENT WASN'T MADE.
>> NO.
NOT AT ALL.
>> FROM A VISUAL --
>> NO.
>> THE -- BECAUSE THEY
RELIED ON THE ON THE
TESTIMONY OF AGENT MALONE,
WHICH IS AT PAGE 1873, OF
THE RECORD.
>> BUT IF THE HAIR --
>> THE HAIR FROM BOTH HANDS
WERE --
>> AS YOU WERE DESCRIBING
IT --
>> -- THAT THIS WOMAN
HAS BEEN A DIFFERENT --
COLOR HAIR ALL OF HER LIFE.
>> UM-HMM.
>> -- AND ALL OF THE SUDDEN
YOU HAVE GOT SOME STRAY HAIR
HERE.
>> RIGHT.
>> -- CAN'T UNDER THAT
WOULDN'T HAVE BEEN FOCAL
POINT DURING THE TRIAL?
>> ALL I CAN SAY IS THAT THE
TRIAL COUNSEL RELIED ON
AGENT MALONE'S TESTIMONY
WHEN HE SAID TESTED IT THE
FACT OF THE MATTER IS HE
NEVER TESTED IT.
>> DID TRIAL COUNSEL AT THES
TESTIFY TO THAT FACT.
>> NO HE TESTIFIED HE DIDN'T
EVEN RECALL GETTING THE FDLE
REPORT.
>> DID TRIAL COUNSEL TESTIFY
TO WHAT YOU ARE SAYING.
>> NO.
>> -- THAT HE WOULD HAVE
DONE ANYTHING DIFFERENTLY.
>> NO HIS TESTIMONY WAS HE
DID NOT RECALL EVEN SEE THE
REPORT FROM AGENT MALONE
THAT WAS HIS TESTIMONY
BASICALLY THAT THEY WERE
RELYING ON WHERE THEY HAD
THE HAIR WASN'T INTRODUCED
IN EVIDENCE AT THE ORIGINAL
TRIAL?
>> CORRECT, THE -- THE HAIR
EXHIBITS WERE ONLY
INTRODUCED AT THE TIME OF
TRIAL, CORRECT.
>> YOU JUST RETLOOIND FACT
THEY WERE ALL THE VICTIM'S.
>> RIGHT.
THEY RELIED ON HIS TESTIMONY
THAT THEY WERE ALL THE
VICTIM'S, AND THAT WAS HIS
TESTIMONY, HE SAID, THE
QUESTION WAS, AND THE RESULT
OF YOUR EXAMINATION WAS THAT
THOSE HERE IS A WERE THE
VICTIM'S HERE IS A, YES THE
HAIRS WERE BOTH HER HANDS
WERE HER OWN.
>> WORTH ASSISTANCE YOU HAVE
UTILIZED MORE THAN YOUR
TIME.
>> THANK YOU YES.
>> THANK YOU FOR ARGUMENTS
WE'LL TAKE THE CASE UNDER
ADVISEMENTS COURT WILL STAND
IN RECESS UNTIL 9:00
TOMORROW MORNING.
>> ALL RISE.