THE MARSHAL: HEAR YE, HEAR YE, HEAR YE, THE SUPREME COURT OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR, GIVE ATTENTION, AND YOU SHALL BE HEARD. GOD BLESS THESE UNITED STATES, THIS GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE ON THIS MORNING'S DOCKET IS TROY V STATE OF FLORIDA. JUSTICE BELL IS RECUSED ON THIS CASE. THE PARTIES ARE READY? YOU MAY PROCEED.

I'M REPRESENT THE APPELLANT, JOHN TROY. I WILL BEGIN WITH THE PENALTY ISSUES IN THIS CASE AND TIME PERMITTING I WOULD LIKE TO ADDRESS THE ISSUE DEALING WITH THE CONSTITUTIONALITY.

THE CASE LAW MAKES IT CLEAR THAT THERE IS OR WHETHER IT APPLIES TO A CAPITAL CASE, THE SPENCER AND JACKSON CASES MAKE THAT CLEAR THAT IT DOES.

HOW WOULD YOU DEFINE THE RIGHT OF ALLOCUTION? HOW WOULD YOU DEFINE ALLOCUTION TO BEGIN WITH AND THEN WOULD YOU DEFINE THE RIGHT.

IN THIS CASE, THE CASES CITED IN THE BRIEF, IT IS VERY LIMITED. THE RIGHT OF ALLOCUTION IS THE SENTENCER IN THIS CASE THE JURY IS THE CONSTANCE OF THE COMMUNITY UNDER FLORIDA LAW. IT HAS A RIGHT TO HEAR THE DEFENDANT IN HIS OWN VOICE EXPRESS HIS REMORSE FOR THE CRIME AND HIS HOPES FOR THE FUTURE, AND FACTORS LIKE THAT. STRICTLY ALLOCUTION DOES NOT ALLOW A DEFENDANT TO GET INTO THE FACTS OF THE CRIME, DOES NOT ALLOW A DENIAL OF THE CRIME. IF A DEFENDANT STRAYS FROM THE LIMITS OF ALLOCUTION THEN CROSS-EXAMINATION --

AND WHAT'S THE SOURCE OF YOUR EXPLANATION OR DEFINITION OF ALLOCUTION AND THE RIGHT OF THE ACCUSER? .

FOR SUMMING UP THE STATE OF THE LAW IS THE FEDERAL LAW OF DESHIELDS VERSUS SNYDER WHICH BASICALLY SAID THAT THE FEDERAL COURTS ARE ALL OVER THE MAP ON IT AND IT BASICALLY TO THE EXTENT YOU CAN SEE A COMMON THREAD THE COURTS TEND TO HOLD THAT DUE PROCESS REQUIRES RECOGNITIONS, THE RIGHT OF ALLOCUTION WHEN THE DEFENDANT SPECIFICALLY REQUESTS IT, AND PERHAPS NOT WHEN HE DOESN'T. THAT SEEMS TO BE THE COMMON THREAD OF THE CASES. THE DESHIELDS CASE CITES SEVERAL FEDERAL CASES HOLDING IT IS CONSTITUTIONALLY BASED. SEVERAL HOLDING THAT IT IS NOT. THE SUPREME COURT OF DELAWARE, DELAWARE BEING ONE OF THE FOUR HYBRID STATES LIKE FLORIDA. DELAWARE'S CAPITAL SENTENCING STATUTE IS INTENTIONALLY PATTERNED AFTER FLORIDA'S ALTHOUGH NOT IDENTICAL. IN THE SHELTON CASE, DEALING WITH THE RIGHT OF ALLOCUTION AND MOST SPECIFICALLY WHETHER IT APPLIES TO THE COSENTENCING JURY, WHAT THE DELAWARE SUPREME COURT DID IS BASICALLY DECLINED TO DECIDE WHETHER THE RIGHT WAS CONSTITUTIONALLY BASED AND DECIDED THE ISSUE AS A MATTER OF STATE LAW. BUT THE RESULT --

ARE YOU REALLY SAYING THEN THAT A DEFENDANT HAS A RIGHT TO COME BEFORE THE COURT, BOTH THE JUDGE AND THE JURY, AND ON THIS ONE LIMITED ISSUE OF REMORSE, MAKE A STATEMENT TO THE JURY WITHOUT ANY CROSS-EXAMINATION BY THEM?

YES. IT IS A LITTLE BIT MORE EXPANSIVE THAN JUST REMORSE. IT CAN ALSO APPLY TO THINGS LIKE, YOU KNOW, HOPES FOR THE FUTURE, JUST A PLEA TO BE SPARED. BUT BASICALLY, YES. I ALSO THINK AS I SAID THAT I THINK THAT MY POSITION IS OBVIOUSLY STRONGER IF THE RIGHT OF ALLOCUTION IS CONSTITUTIONALLY BASED BUT IT DOESN'T DEPEND ON THAT. BECAUSE FLORIDA COURTS, SPENCER AND JACKSON MAKE IT CLEAR THAT A DEFENDANT HAS A RIGHT TO ALLOCUTION IN A CAPITAL CASE BUT UP UNTIL NOW IT HAS BEEN BEFORE THE TRIAL JUDGE. THAT WAS THE ISSUE THAT WAS DEBATED IN THE TRIAL COURT IN THIS CASE.

WHY SHOULD WE EXPAND ON SPENCER AND MAKE THIS BEFORE THE JURY IN ADDITION?

BECAUSE UNDER FLORIDA LAW THE JURY IS THE COSENTENCER. UNDER ESTABLISHED FLORIDA LAW, EVEN PRIOR TO RING IT HAS BEEN RECOGNIZED THAT THE JURY IS THE CONSCIENCE OF THE COMMUNITY BUT MOST PARTICULARLY AFTER RING, THE CONSTITUTION REQUIRES THAT WE DON'T PRETEND THIS IS A JUDGE SENTENCING STATE.

CHIEF JUSTICE: WELL, I MEAN RING SPECIFICALLY, AT LEAST THE MAJORITY IN RING, SPECIFICALLY EXPLAINS THAT THIS IS NOT FOR SENTENCING PURPOSES. THAT JUST FOR ANY FACTS THAT WOULD WORK AS AGGRAVATORS, SO YOU WOULD AGREE WITH THAT AS JUSTICE BREYER GAVE THE OPPOSITE VIEW EVEN AFTER RING IT IS NOT THAT THERE IS A CONSTITUTIONAL MANDATE THAT THE JURY BE THE SENTENCER IN CAPITAL CASES.

I THINK IT IS AN OPEN QUESTION FOR EXAMPLE WHETHER RING APPLIES TO JUST THE SINGLE ELIGIBILITY AGGRAVATOR OR ALL OF THE AGGRAVATORS. I THINK THAT'S AN OPEN QUESTION. MY POSITION WOULD BE IT APPLIES TO ALL OF THE AGGRAVATORS BUT MOST IMPORTANTLY HERE EVEN BEFORE RING IT WAS RECOGNIZED BY THIS COURT AND BY THE U.S. SUPREME COURT THAT THE JURY IS A COSENTENCER UNDER FLORIDA LAW.

CHIEF JUSTICE: DID YOU ANSWER THE QUESTION AS TO, YOU SAID YOUR ARGUMENT DOESN'T DEPEND ON WHETHER THE RIGHT IS CONSTITUTIONALLY BASED, BUT IF IT DOES DEPEND ON THAT, WHERE IS THE CONSTITUTION? WHAT IS THE CONSTITUTIONAL BASIS THAT YOU ARE ASSERTING FOR A DEFENDANT IN A CAPITAL CASE TO BE ABLE TO GET UP AND WITHOUT ANY CROSS-EXAMINATION GIVE THIS LIMITED TESTIMONY?

IT WOULD BE THE RIGHT OF DUE PROCESS AND IT WOULD BE IN A CAPITAL CASE, THE 8TH AMENDMENT AS WELL. NOW, AGAIN --.

CHIEF JUSTICE: WELL, YOU KNOW, YOU ARE AN EXCELLENT LAWYER. YOU CAN'T JUST ROLL OUT AND SAY THE 8TH AMENDMENT. HOW? IT DOESN'T, I THINK THAT AS I SEE THIS I DON'T SEE WHERE THE CONSTITUTIONAL BASIS IS. I DON'T SEE HOW DUE PROCESS WOULD ALLOW SOMETHING WHERE THE STATE WOULDN'T HAVE A CHANCE TO CROSS-EXAMINE A DEFENDANT IN A, AGAIN, BEFORE THE JURY IN THAT SITUATION.

I'M GOING TO USE THAT AS AN OPPORTUNITY TO SEGUE INTO THE OTHER PART OF MY ISSUE WHICH IS THAT THE PROSECUTOR WAS SAYING OH, YOU ONLY GET TO ALLOCUTE BEFORE THE JUDGE AND NOT THE JURY BECAUSE THE JUDGE IS THE SENTENCER HERE AND THE JURY IS ONLY AN ADVISORY. I WANT TO POINT OUT ALSO THE CHONG CASE SAYS THAT ALLOCUTION BEFORE THE JUDGE ONLY IS PRETTY MUCH AN EMPTY FORMALITY BUT THE PROSECUTOR IS SAYING, YOU KNOW, YOU WANT TO TALK ABOUT YOUR REMORSE, YOU WANT TO EXPRESS THAT IT HAS TO BE SUBJECT TO CROSS-EXAMINATION. WELL, OKAY, FINE. LET'S FOR ARGUMENT'S SAKE GO THERE. I'LL ASSUME THAT THAT IS A VALID POINT BUT THE CROSS-EXAMINATION THAT IT IS SUBJECT TO HAS TO BE PROPER CROSS-EXAMINATION. HERE WHAT WAS USED BASICALLY, AND IT IS THE VERY THING THAT WAS FORESEEN IN THE CHONG CASE AND THE NEW JERSEY CASE WHICH WAS WHY THE RIGHT OF ALLOCUTION IS SO IMPORTANT IS THAT A DEFENDANT MAY BE UNWILLING OR AS A PRACTICAL MATTER UNABLE TO TESTIFY BECAUSE OF THE THREAT OF CROSS-EXAMINATION. HERE WE ARE TALKING ABOUT IMPROPER CROSS-EXAMINATION BECAUSE IT WAS FAR BEYOND THE SCOPE OF DIRECT, AND WE ARE TALKING ABOUT UNLAWFUL CROSS EXAMINATION BECAUSE IT WAS WITH MATERIAL SECURED IN VIOLATION OF THE U.S. CONSTITUTION SPECIFICALLY THE SUPPRESSED CONFESSION WHICH EVEN THE PROSECUTION CONCEDED THAT THE CURRENT STATE OF THE LAW REQUIRED SUPPRESSION. THE FLORIDA --

WAS THAT DONE BEFORE THE JURY?

WAS THAT --.

CHIEF JUSTICE: YOUR SEGUE, ARE WE TALKING NOW ABOUT --.

I'M TALKING ABOUT WHAT HAPPENED BEFORE THE JURY. IT CAME IN IN THE SPENCER HEARING AND ALL I REALLY CARE ABOUT.

CHIEF JUSTICE: JUST LET ME CLARIFY. BEFORE THE JURY, DID HE TESTIFY THEN?

NO, HE WAS BASICALLY, I HAVE TO SAY COERCED NOT TO TESTIFY BECAUSE OF THE THREAT OF THIS WIDE OPEN CROSS-EXAMINATION.

CHIEF JUSTICE: NOW THE SEGUE IS THAT NOW IT IS BEFORE THE JUDGE AND IN THE SPENCER HEARING?

NO, I'M NOT CONCERNED ABOUT THE SPENCER HEARING.

CHIEF JUSTICE: WHAT ARE YOU TALKING ABOUT THE CROSS-EXAMINATION?

THE THREAT OF CROSS-EXAMINATION. EVERY TIME COUNSEL WOULD PROFFER I WANT TO PUT HIM ON THE STAND TO TESTIFY ABOUT HIS REMORSE BUT I'M CONCERNED ABOUT THE SCOPE OF THE CROSS. I WANT TO ASK HIS MOTHER, DEBRA, ABOUT HIS EXPRESSIONS OF REMORSE BUT I'M CONCERNED ABOUT WHAT THE CROSS WILL BE. I WANT TO ASK DETECTIVE GRODOSKI ABOUT THE EXPRESSIONS OF REMORSE BUT I'M CONCERNED ABOUT WHAT THE STATE IS GOING TO DO. THE STATE SAYS THAT'S RIGHT WE'RE GOING TO BRING IN THIS WHOLE SUPPRESSED CONFESSION, WE'RE GOING TO BRING IN THIS WHOLE NEW AGGRAVATING CIRCUMSTANCE OF WITNESS ELIMINATION AND ALL OF THE EXPLICIT DETAILS, THE RECORD SAYS --

DID THEY MAKE A PROFFER BOTH OF WHAT IT WAS GOING TO OFFER AND THEN A PROFFER OF WHAT THE CROSS-EXAMINATION WOULD BE SO THAT IT MIGHT HAVE AN OPPORTUNITY TO KNOW THE ANSWER TO THOSE QUESTIONS? YOU ARE NOW POSING?

RIGHT, THERE IS NOT A QUESTION. THERE IS NOT A Q AND A PROFFER. WHAT THERE IS THE DEFENSE MAKING IT CLEAR REPEATEDLY THESE ARE THE TWO AREAS, THESE ARE THE FOUR AREAS THAT I WANT TO GET INTO. FOR EXAMPLE, AT ONE POINT HE SAID ALL I WANT TO ASK DETECTIVE GRODOSKI IS DID HE EXPRESS REMORSE AND ACKNOWLEDGE RESPONSIBILITY FOR THE DEATH OF DEBRA CARROLL. THOSE ARE THE TWO QUESTIONS THAT LATER WERE ASKED BY DEFENSE COUNSEL AND THE FLOODGATES OPENED AND IT ALL CAME IN, THE ENTIRE CONFESSION.

CHIEF JUSTICE: BUT IF THERE WAS NO RIGHT OF ALLOCUTION BEFORE THE PENALTY PHASE JURY, NO CONSTITUTIONAL RIGHT, AND THIS ISSUE ABOUT WHAT WOULD HAVE COME UP IF HE HAD TESTIFIED SEEMS ACADEMIC.

IT IS NOT ACADEMIC AT ALL, BECAUSE THE PROSECUTOR IS SAYING HE DOESN'T HAVE TO ALLOCUTE. HE CAN TESTIFY SUBJECT TO CROSS BUT THE POINT IS THE CROSS THAT THE PROSECUTOR SAID WE ARE GOING TO DO AND THAT THE JUDGE BASICALLY SAID, HEY, YOU KNOW, I'M INCLINED TO RULE THAT THIS OPENS THE DOOR. REPEATEDLY THE JUDGE WARNED BOTH DEFENSE COUNSEL THAT, LOOK, IF YOU TAKE THE STAND YOU DO IT AT YOUR OWN RISK. IF YOU ASK THESE WITNESSES THESE QUESTIONS YOU DO IT AT YOUR OWN RISK. I'M INCLINED TO LET THIS STUFF IN. DEFENSE COUNSEL COULDN'T HAVE MADE IT ANY -- THIS IS NOT A SITUATION WHERE THE JUDGE IS SAYING I HAVE TO HEAR THE QUESTION IN ORDER TO MAKE A RULING ABOUT HOW FAR THE DOOR IS OPENED. IT WAS MADE AS CLEAR AS IT COULD BE TO THE JUDGE. THIS IS WHAT WE WANT TO DO BUT WE CAN'T DO IT UNLESS YOU PREVENT THEM FROM BRINGING IN THIS CONFESSION.

THE OFFICER THAT THEY WERE EXAMINING ABOUT REMORSE, HE DID MAKE A STATEMENT TO THE OFFICER?

CORRECT.

AND WAS THERE ANY INFORMATION IN THAT STATEMENT THAT WAS RELEVANT TO THE ISSUE OF HIS REMORSE?

I DON'T BELIEVE THERE WAS. I DON'T THINK FOR EXAMPLE IF YOU ARE GOING TO BRING IN A SUPPRESSED CONFESSION THAT IS SUPPRESSED AS A RESULT OF A CONSTITUTIONAL VIOLATION WHICH BY THE WAY THE FLORIDA DEATH PENALTY STATUTE SPECIFICALLY PROHIBITS, NOW, THERE ARE A COUPLE OF EXCEPTIONS UNDER WHICH THAT COULD CONCEIVABLY COME IN THAT WERE ADDRESSED IN MY BRIEF. ONE OF THOSE IS THE DOCTRINE OF HARRIS VERSUS NEW YORK WHICH IS LIMITED TO IT BASICALLY SAYS A DEFENDANT CAN'T LIE. THAT IF THE DEFENDANT TESTIFIES INCONSISTENTLY WITH WHAT HE SAID IN HIS CONFESSION THEN THAT OPENS THE DOOR TO BRINGING INTO THE CONFESSION IN THE SAME MANNER AS ANY OTHER PRIOR INCONSISTENT STATEMENT SO THEN THE QUESTION BECOMES IF YOU BRING OUT THE FACT IF JOHN TROY HAD GOTTEN UP THERE AND TESTIFIED TO THE JURY UNDER, YOU KNOW, UNDER OATH TESTIFIED EXACTLY AS HE DID WHEN HE DID FINALLY MAKE HIS ALLOCUTION STATEMENT TO THE JUDGE IN THE SPENCER HEARING IF HE HAD SAID THOSE THINGS ABOUT HIS SORROW FOR WHAT HE HAD DONE AND HIS REGRET WOULD THAT HAVE BEEN A PRIOR INCONSISTENT STATEMENT TO THEN BRING IN ALL OF THE DETAILS THAT HE TOLD DETECTIVES GRODOSKI ABOUT THE OCCURENCE OF THE CRIME INCLUDING THIS NEW AGGRAVATOR OF WITNESS ELIMINATION? THE DOOR CAN'T POSSIBLY BE OPEN THAT WIDE. IT IS NOT A PRIOR INCONSISTENT STATEMENT. IT DOESN'T COME IN UNDER ANY KIND OF RULE OF COMPLETENESS.

BUT THEY DIDN'T FIND THAT AGGRAVATING CIRCUMSTANCE, DID HE?

NO, HE DID NOT, AND BUT THE PROBLEM HERE, THE JURY DIDN'T FIND IT, EITHER, BECAUSE THE JURY NEVER HEARD IT AND THE REASON THE REASON NEVER HEARD IT IS BECAUSE THE STATE DIDN'T BRING IN THE SUPPRESSED CONFESSION. SO WHERE IS THE HARM? THE HARM IS HERE. THE HARM IS THAT THIS WAS USED AS A COERCIVE AGENT TO PREVENT JOHN TROY. HE WAS NOT ALLOWED TO ALLOCUTE AND HE COULDN'T TESTIFY BEFORE THE JURY AND HE COULDN'T ASK QUESTIONS OF DETECTIVE GRODOSKI OR HIS MOTHER ABOUT PRIOR EXPRESSIONS OF REMORSE BECAUSE OF THIS CONSTANT THREAT IF YOU DO THAT, THE FLOODGATES ARE GOING TO OPEN AND EVERYTHING IN THAT SUPPRESSED CONFESSION IS COMING IN. I HAVE OTHER THINGS I NEED TO ADDRESS BUT I THINK THAT THE COMBINED EFFECT OF ALL OF THESE OCCURRENCES DEPRIVED HIM OF HIS RIGHT TO BE HEARD AT THIS PENALTY PHASE AND ABSOLUTELY VIOLATED DUE PROCESS. WHETHER THE ALLOCUTION ALONE WOULD HAVE BEEN SUFFICIENT TO DO THAT MY POSITION WOULD BE THAT IT WOULD. BUT CERTAINLY THAT IF THE IDEA THAT HE HAS TO TESTIFY SUBJECT TO CROSS.

IS REMORSE A MITIGATOR?

YES, IT IS, RECOGNIZED UNDER FLORIDA LAW.

DOES THE STATE HAVE A RIGHT TO PRESENT REBUTTAL EVIDENCE ON THAT?

YES, IT DOES.

HOW WOULD THE STATE DO THAT UNDER YOUR THEORY OF THE DEFENDANT HIMSELF ADDRESSING THE JURY AND EXPRESSING GREAT REMORSE THEN WOULD THE STATE HAVE THE RIGHT TO REOPEN THE CASE NOW AND PUT ON EVIDENCE OF LACK OF REMORSE?

WELL, IF --

IN OTHER WORDS IN OTHER WORDS AFTER THE DEFENDANT ADDRESSES THE JURY AND THE THEORY OF THE RIGHT OF ALLOCUTION AND EXPRESSES, YOU KNOW, GREAT REMORSE AND NOW THE STATE WANTS TO REBUTT THAT BY EVIDENCE OF THE BACK OF REMORSE OR EVIDENCE THAT WOULD CONFLICT WITH THAT, HOW WOULD THEY DO IT?

IF IT WAS DONE UNDER TRADITIONAL ALLOCUTION THEN THEY PROBABLY COULDN'T DO IT. IF IT WAS DONE UNDER TESTIMONY IT WOULD BE DONE THE SAME WAY IT HAS BEEN DONE IN PLENTY OF FLORIDA CASES.

MY QUESTION IS IF IT WAS DONE BY THE DEFENDANT CLAIMING A RIGHT OF ALLOCUTION AND HE MAKES STATEMENTS TO THE JURY ABOUT GREAT REMORSE FOR THIS, HOW WOULD THE STATE THEN HAVE ITS RIGHT TO REBUT THAT?

UNDER THE CASE LAW DEALING WITH THE RIGHT OF ALLOCUTION THEY WOULDN'T.

THEY WOULDN'T?

THEY WOULDN'T. IF IT CAME IN AS ALLOCUTION, AND IT WAS LIMITED TO REMORSE THEY WOULDN'T. IF IT CAME IN AS TESTIMONY, THEN THEY WOULD HAVE THE RIGHT TO REBUT IT, BUT IT WOULD ONLY HAVE TO BE REBUTTAL EVIDENCE DEALING WITH THE ISSUE OF REMORSE. IT COULDN'T BE REBUTTAL EVIDENCE DEALING WITH ANYTHING THEY WANTED ON THE CRIME INCLUDING IMPROPERLY OBTAINED CONFESSIONS.

WOULDN'T THE STATE BE DEPRIVED OF ITS RIGHT TO REBUT THIS EVIDENCE OF MITIGATION?

WELL, THAT IN EFFECT COULD BE USED AS AN ARGUMENT BASICALLY TO SAY THE RIGHT OF AL CUSHION SHOULDN'T EXIST AT ALL. I MEAN, THIS IS WHAT AL CUSHION TRADITIONALLY HAS BEEN. I MEAN, THE DEFENDANT CAN DO IT. IT IS RECOGNIZED THAT THE DEFENDANT CAN DO IT AT A SPENCER HEARING. THE DEFENDANT DID DO IT AT THE SPENCER HEARING. I DON'T WANT -- I MEAN I COULD SAY THAT, WELL, YES, THEY COULD REBUT IT AFTER ALLOCUTION AS WELL BUT I DON'T THINK THAT'S THE LAW ON ALLOCUTION. IF IT WAS DONE IN THE FORM OF ALLOCUTION THEY WOULD HAVE NO RIGHT OF REBUTTAL. IF IT WAS DONE AS TESTIMONY THEY WOULD HAVE A RIGHT OF REBUTTAL BUT CERTAINLY NOT WITH THIS SUPPRESSED CONFESSION ABOUT THE DETAILS OF THE CRIME AND THE NEW AGGRAVATOR OF WITNESS ELIMINATION.

CHIEF JUSTICE: JUSTICE CANTERO HAS A QUESTION.

IF THE DEFENDANT DID IT AS ALLOCUTION WOULD THE STATE HAVE THE RIGHT IN CLOSING TO TELL THE JURY, YOU KNOW, THE DEFENDANT HAS TALKED TO YOU HERE BUT HE HASN'T PLACED HIMSELF UNDER OATH. NOTHING HE SAID HAS BEEN SWORN TO AND WE HAVEN'T BEEN ABLE TO CROSS-EXAMINE ON IT?

I DON'T SEE WHY NOT. I WANT TO MOVE ON TO THE ISSUE HAVING TO DO WITH THE EXCLUSION OF THE TESTIMONY THAT THE DOC MICHAEL GALEMORE. THIS IS EVIDENCE I BELIEVE SHOULD HAVE BEEN ADMISSIBLE AS RELEVANT TO MITIGATION. NOT MITIGATION ITSELF, THE CONDITIONS OF CONFINEMENT, THE FACT THAT TROY WOULD BE IN CLOSE CONFINEMENT, THAT DOC TAKES STRONG EFFORTS TO KEEP DRUGS FROM GETTING INTO THE PRISON IN THOSE CIRCUMSTANCES, THAT IN ITSELF IS NOT MITIGATION. IT IS EVIDENCE RELEVANT TO MITIGATION, RELEVANCY UNDER THE EVIDENCE CODE IS EVIDENCE TENDING TO MAKE A MATERIAL FACT MORE OR LESS PROBABLE AND I THINK IT CLEARLY FALLS UNDER THAT CATEGORY. BUT THE ISSUE IN THIS CASE IS WAY STRONGER THAN THAT AND THE REASON IS BECAUSE WHETHER OR NOT THE CONDITIONS OF CONFINEMENT WERE RELEVANT INITIALLY, THE STATE IS WHO MADE IT RELEVANT. NOW, ALL THE DEFENDANT WAS TRYING TO DO WAS REBUT VERY DAMAGING IMPEACHMENT AND CROSS-EXAMINATION DONE BY THE STATE.

CHIEF JUSTICE: HOW DID THEY MAKE IT RELEVANT?

HOW THEY MADE IT RELEVANT IS THIS: THERE WERE THREE MAIN THEMES OF THE MITIGATION IN THIS CASE AND ONE OF THE MAJOR THEMES WAS THE FACT THAT JOHN TROY IS AMENABLE TO REHABILITATION AND HE TENDS TO DO WELL IN A STRUCTURED PRISON ENVIRONMENT. THE DEFENSE CALLED FIVE CORRECTIONAL OFFICERS, FIVE FAMILY MEMBERS, A JAIL NURSE, AN INMATE, A CORRECTIONAL OFFICER FROM TENNESSEE THAT HE SAVED FROM BASICALLY A JAIL RIOT IN A PRIOR INCIDENT AND THE PSYCHOLOGIST -- PSYCHIATRIST ALL TO TESTIFY ABOUT THAT. WHAT THE STATE DID IS THIS: WITH THREE WITNESSES IN PARTICULAR, JOHN TROY'S FATHER, JOHN TROY'S GRAND MOTHER, JOHN TROY'S SISTER ARE ALL UP THERE TESTIFYING ABOUT TROY'S POTENTIAL FOR REHABILITATION AND HOW WELL HE DOES IN A STRUCTURED ENVIRONMENT AND THE STATE'S CROSS-EXAMINATION OF THESE THREE WITNESSES WAS LIKE THIS. YOU HAVE NEVER BEEN TO PRISON, HAVE YOU? YOU REALLY DON'T KNOW ANYTHING ABOUT THE CONDITIONS OF CONFINEMENT, DO YOU? DO YOU KNOW ANYTHING ABOUT HIS DRUG USE WHEN HE HAS BEEN IN PRISON BEFORE? DO YOU KNOW HOW EASY IT IS OR WHETHER IT IS POSSIBLE OR HARD OR EASY TO GET DRUGS INTO THE PRISON? YOU DON'T KNOW ANYTHING ABOUT PRISON, MR.^TROY, MS.^TROY, MISS NATALIE WALLACE?

THE OFFICERS THAT WERE BROUGHT IN, BECAUSE THERE WERE A THE LOT OF DEFENSE WITNESSES IN THIS HEARING AND THERE WERE SOME WHO ACTUALLY HAD BEEN IN THE FACILITIES WHERE MR.^TROY HAD BEEN. WERE THOSE OFFICERS ASKED THESE KINDS OF QUESTIONS ABOUT THE FACILITIES THAT MR.^TROY HAD REALLY BEEN IN AND HOW HE HAD REACTED THERE, WHAT KIND OF DRUG SITUATIONS WERE IN THOSE FACILITIES?

TO A DEGREE, YES, BUT I MEAN WHAT WAS IMPORTANT HERE WAS TO GET THE TESTIMONY FROM SOMEBODY WHO KNEW SOMETHING ABOUT THE KIND OF CONFINEMENT THAT TROY WOULD BE IN SERVING A LIFE SENTENCE FOR MURDER. CLOSE CONFINEMENT. THAT WAS WHY DOC OFFICIALS WERE CALLED. THE OTHER OFFICIALS BASICALLY TESTIFIED --.

CHIEF JUSTICE: GOING BACK TO THE CROSS-EXAMINATION OCCURRED IF THE WITNESSES WERE WITNESSES THAT SAID HE DID REALLY GOOD IN CONFINEMENT BEFORE HE GOT OUT IN JULY WAS THAT HE WAS DOING DRUGS AT LEAST BEFORE HE GOT OUT. I MEAN, HE WAS ADDICTED APPARENTLY WHEN HE WENT IN OR AFTER HE GOT IN AND STAYED ADDICTED AND WAS ADDICTED WHEN HE GOT OUT.

EXACTLY.

BUT THAT SEEMS TO ME THAT'S VALID CROSS-EXAMINATION.

IT IS VALID, YOU KNOW, IT IS CERTAINLY TRUE THAT HE HAS HAD A PROBLEM WITH DRUGS THROUGHOUT HIS LIFE AND OUR OWN PSYCHIATRIST TESTIFIED THAT HE, IN SUPPORT OF THE TWO MENTAL MITIGATORS, ONE OF WHICH WAS GIVEN GREAT WEIGHT. YES, HE IS SEVERELY ADDICTED TO COCAINE AND OTHER DRUGS AND HE HAS A SEVERE ADDICTION PROBLEM. THE QUESTION THEN BECOMES THE DEFENSE HAD PLENTY OF EVIDENCE THAT HE CAN -- HE IS -- OTHER THAN HIS DRUG PROBLEM WHEN HE IS KEPT AWAY FROM DRUGS HE IS A MODEL INMATE. THE STATE'S ARGUMENT IS YOU CAN'T KEEP HIM AWAY FROM DRUGS. YOU DON'T KNOW ANYTHING ABOUT THIGHS CONDITIONS OF CONFINEMENT. EVERY TIME HE GOES TO PRISON HE USES DRUGS. THAT MADE IT RELEVANT WHAT THE CONDITIONS OF CONFINEMENT WERE. I NEED TO POINT OUT THE FACT I THINK IN ESTELLE VERSUS WIGGINS IT IS POINTED OUT THAT THE AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL DEFENSE FUNCTION ONE OF THE THINGS THAT AND THESE ARE LIKE CONSIDERED A GUIDELINE FOR WHAT IS REASONABLE ON QUESTIONS OF EFFECTIVE ASSISTANCE OF COUNSEL. ONE OF THE THINGS COUNSEL IS SUPPOSED TO DO IS CONSIDER EVIDENCE SHOWING THE ALTERNATIVES TO A DEATH SENTENCE, THE CONDITIONS UNDER WHICH A LIFE SENTENCE WOULD BE SERVED. I BELIEVE THIS IS RELEVANT BUT IT CERTAINLY WAS MADE RELEVANT BY THE STATE TELLING THESE WITNESSES YOU ARE IN EFFECT TELLING THE JURY YOU CAN'T GO BY WHAT THESE WITNESSES SAY. THEY ARE HIS RELATIVES. THEY DON'T KNOW ANYTHING ABOUT PRISON. IF HE GOES BACK TO PRISON HE IS JUST GOING TO GO BACK TO USING DRUGS. WE HAD A RIGHT TO INTRODUCE RELEVANT REBUTTAL TO SHOW THAT THAT'S UNDER THE CONDITIONS OF CONFINEMENT THAT HE WOULD BE SERVING THAT OPPORTUNITY WOULD BE EXTREMELY LIMITED. HE WOULD BE IN CLOSE CONFINEMENT. HE WOULD WORK. IT IS RELEVANT EVIDENCE AS TO THE MITIGATOR OF POTENTIAL FOR REHABILITATION AND PRODUCTIVITY IN A STRUCTURED ENVIRONMENT BUT IT IS CERTAINLY RELEVANT EVIDENCE TO REBUT WHAT THE STATE DID IN THIS CASE. I'LL MOVE ON VERY QUICKLY TO A COUPLE OF THE PENALTY ISSUES. THE JUDGE'S REFUSAL TO GIVE INSTRUCTION ON THE MITIGATING CIRCUMSTANCE OF AGE WHERE THE CASE LAW FROM THIS COURT IS THAT AGE IS A VALID MITIGATOR.

CHIEF JUSTICE: HOW OLD WAS HE AT THE TIME?

HE IS 31. THE BLACKWOOD CASE SAYS AGE COULD BE A RELEVANT MITIGATION, YOUNG, MIDDLE-AGED OR OLD. THE KEY IS TO ANY OTHER EVIDENCE OR TESTIMONY DEALING WITH OTHER THINGS PSYCHOLOGICAL OR EMOTIONAL IMMATURITY. WE HAVE THAT EVIDENCE. WE HAVE DR.^MAHAR TESTIFIED AS A RESULT OF TROY'S BEING MOLESTED BY A TEACHER WHEN HE WAS 13 THAT HE IS BASICALLY A CASE OF ARRESTED DEVELOPMENT. THAT HE IS EXTREMELY IMMATURE. HE OPERATES ON THE LEVEL OF A TEENAGER AND THAT THAT, IN FACT, IS PART OF WHY THE EFFORTS, THE PRIOR EFFORTS TO GET HIM OFF OF THE DRUGS AND THE DRUG PROGRAMS HAVE BEEN UNSUCCESSFUL.

THE AGE MITIGATOR, CONCERNS OTHER THAN CHRONOLOGICAL AGE?

YOU BASICALLY SAID THAT EXCEPT IN THE VERY LOW END OF THE SPECTRUM WHERE I THINK THE AGE NOW, THERE CAN BE NO DEATH PENALTY UNDER 18. I THINK IF YOU ARE TALKING 18 OR 19 THEN CHRONOLOGICAL AGE ALONE IS ENOUGH BUT ANYTHING AFTER THAT HAS TO BE LINKED WITH SOMETHING. THE KEY IS THE LINKAGE AND WE HAVE THAT. THIS COURT HAS MADE IT CLEAR THAT THE JUDGE CAN DECIDE, THE JUDGE COULD HAVE LOOKED AT THIS EVIDENCE AND SAY I'M REJECTING THIS MITIGATOR OR I AM GIVING IT VERY LITTLE WEIGHT. WHAT HE CAN'T DO IS HE CAN'T INTERFERE WITH THE JURY'S DELIBERATIONS OR THE JURY'S RIGHT TO GIVE IT WHATEVER WEIGHT THEY THINK IT IS APPROPRIATE TO BY REFUSING TO INSTRUCT ON IT AND THAT GOES BACK TO CASES AS OLD AS FLOYD.

CHIEF JUSTICE: DID YOU ARGUE IT AS A NONSTATUTORY MITIGATOR?

AS A STATUTORY MITIGATOR.

CHIEF JUSTICE: BUT NOTHING WOULD HAVE PRETHE DEFENSE LAWYER FROM ARGUING IT AS A NONSTATUTORY MITIGATOR TO THE JURY?

WELL, YOU CAN SAY THAT ABOUT ANY STATUTORY MITIGATOR.

CHIEF JUSTICE: I UNDERSTAND THAT, BUT FRANKLY IF ANYTHING THIS IS MY HUMBLE OPINION HARMLESS ERROR ASSUMING YOU ARE CORRECT IT WOULD BE THIS SITUATION OF A 31-YEAR-OLD AND I UNDERSTAND, YOU KNOW, THERE WAS OTHER PRETTY POWERFUL MITIGATION ABOUT HIS CHILDHOOD BUT I THINK THAT TO LINK IT AND TO SAY AGE --

WELL, LIKE I SAID, I WOULD RESPECTFULLY DISAGREE WITH YOU. I THINK THAT IT IS EASY TO SAY HARMLESS ERROR WHEN YOU MESS UP THE EQUATION LIKE THAT. I'M TRYING TO THINK OF THE NAME OF THE RECENT CASE OH, MAN, I'M DRAWING A BLANK ON THE NAME BUT THERE IS A U.S. SUPREME COURT CASE OUT OF THE CALIFORNIA CIRCUIT WITHIN THE LAST FEW MONTHS. WHERE JUSTICE SCALIA HAS WRITTEN AN OPINION SAYING THAT HARMLESS ERROR SHOULD NOT BE FOUND WHEN THE -- WHEN IT INVOLVES A SITUATION WHERE THE TRIER OF FACT DOESN'T CONSIDER OR THE JURY IS NOT GIVEN AN INSTRUCTION ON A MITIGATOR THAT IS NOT COVERED BY OTHER MITIGATORS.

LET ME ASK YOU THIS.

THE EVIDENCE WOULDN'T BE COVERED.

WHAT?

YOU ARE SAYING THAT THE EVIDENCE THAT SUPPORTS THAT MITIGATOR WOULDN'T, OR AGGRAVATOR WOULDN'T BE APPLICABLE TO ANYTHING?

NO, THE EVIDENCE COULD BE APPLICABLE TO OTHER MITIGATORS, BUT I DON'T THINK THAT'S WHAT SCALIA IS SAYING.

CHIEF JUSTICE: DID YOU CITE THAT CASE IN YOUR BRIEF?

I DID NOT.

CHIEF JUSTICE: WHY DON'T YOU -- THEN YOU -- IF YOU WANT TO SUPPLEMENT -- SUBMIT SUPPLEMENTAL AUTHORITY.

HAVE WE EVER HELD THAT A TRIAL JUDGE HAS ABUSED DISCRETION IN NOT APPLYING THE AGE MITIGATOR WHERE THE DEFENDANT WAS OVER 30 AND UNDER 60?

ABUSED HIS DISCRETION IN NOT FINDING IT? I DON'T BELIEVE SO BUT AGAIN MY ISSUE IS NOT THAT HE WAS ERRONEOUS IN NOT FINDING IT. MY ISSUE IS THAT HE COMMITTED ERROR IN NOT INSTRUCTING ON IT.

ALL RIGHT. HAVE WE EVER HELD TO THAT EFFECT WHERE THE DEFENDANT WAS OVER 30 AND UNDER 60?

I'M NOT SURE THAT THE COURT HAS EVER CONFRONTED THAT ISSUE IN THAT CONTEXT. I MEAN IN THE CAMPBELL CASE --

THE DEFENDANT WAS 21.

RIGHT. I DON'T KNOW THAT THE COURT HAS EVER DECIDED AN ISSUE WHERE THE ISSUE HAD TO DO WITH A JURY INSTRUCTION AND THE DEFENDANT WAS BETWEEN THE AGES OF 30 AND 60 WHERE THERE WAS OTHER EVIDENCE SUPPORTING IMMATURITY. I'M NOT SURE THAT I KNOW OF A CASE WHERE THAT HAS COME UP. THANK YOU.

CHIEF JUSTICE: THANK YOU.

MAY IT PLEASE THE COURT. I'M BOB LANDRY APPEARING ON BEHALF OF THE STATE TODAY IN THIS APPEAL. WITH REGARD TO THE FIRST ISSUE THAT RAISED ARGUMENT TODAY BY OPPOSING COUNSEL, THE RIGHT OF ALLOCUTION I WOULD LIKE TO POINT OUT THE DEFENDANT WAS GIVEN THE RIGHT OF ALLOCUTION AT THE SPENCER HEARING AS PER THE USUAL RULE AND PROCEDURE IN FLORIDA. HE WAS ATTEMPTING, OF COURSE, TO REQUEST OF THE TRIAL COURT THAT HE BE ALLOWED TO GET ON THE STAND IN FRONT OF THE JURY, NOT BE SUBJECT TO CROSS-EXAMINATION, NOT BE REQUIRED TO TAKE THE OATH, TO TELL THE TRUTH, AND SIMPLY ANNOUNCE THAT HE FELT REMORSE. THE PROSECUTOR OBJECTED, SAYING THAT THAT'S NOT WHAT IS AUTHORIZED UNDER FLORIDA LAW. WE CITED IN OUR BRIEF BOT