AND CALL THE NEXT CASE OF GARCIAVERSUS STATE OF FLORIDA. GARCIA VERSUS THE STATE OF FLORIDA.MR. HENNIS .

GOOD MORNING , CHIEF JUSTICE PARI ENTE AND MEMBERSOF THE COURT. I AM WILL IAM HEN NIS , CAPITAL COLLATERAL COUN SEL AND MY CO-COUNSEL ROS ANDRA ECKERD IS AL SO SE ATED . WE HAVE A SITUATION HERE IN WHICH A KEY IS SUE I N THE CASE THAT I BRIEFED IS WHETHER OR NOT THE ALLEGED WAIVER OF PENALTY P HASE MITIGATION CLAIMS AT THE EVIDENTIARY HE ARING BE FORE JUDGE CARNY WAS APPROPRIATE.

CHIEF JUSTICE: DID G ARCIA WAIVE HIS ORIGINAL PEN ALTY P HASE MITIGATION?

NO. THERE WAS N O EXPLICIT WA IVER OF THE ORI GINAL PENALTYPHASE. IT WAS SI MPLY THERE WERE NO WITNESSES PRESENTED BY TR IAL COUNSEL AT THE PENALTY PHASE.

CHIEF JUSTICE: OKAY. SO THIS WASN'T A SITUATION WHERE HE WAI VED PENALTYPHASE.

NO. THE STATE PUT ON THE MEDICAL EXAMINER AT THE ORIG INAL TRIAL. HE WAS CROSSED BY DE FENSE COUNSEL , AND THAT WAS ESSENTIALLY IT.

CHIEF JUSTICE: WAS THERE SOMETHING WHERE HE CHOSE NOT TO T ELL HIS DEFENSE LAW YER NOT TO PUT ON PENALTY MITIGATION?

I DON'T BELIEVE THERE IS ANY ACCOUNT OF THAT ON THE RECORD.

CHIEF JUSTICE: ALL RIGHT.

IN ANY CASE --

JUSTICE: THE PROBLEM YOU HAVE HERE IS THAT AT THEBEGINNING OF THE EVIDENTIARY HEARING O PPOSE THE CONVICTION, HE WAIV ES ALL HIS CLAIMS CONCERNING TRIAL COUNSEL'S PENALTY PHASE PERFORMANCE .

THAT'S RIGHT.THERE WERE PORTIONS OF CLAIMS, AT LE AST SE VEN TO NINE, IN THE POSTCONVICTION MOTION , THAT HE , D URING THE COLLOQUY WITH THE JUDGE , ALLEGE LY MADE A COM PLETE WAIVER OF . NOW , THERE WERE SIGNIFICANTOTHER CLAIMS AS I PU T IN THE B RIEF, AS TO BOTH PENALTY PHASE AND GUILT PHASE , THAT HAD BEEN SUMMARILY DE NIED , THAT HE DIDN'T WAIVE , AND HE MADE IT VERY CLEAR DURING THE CONVER SATION WITH THE JUDGE THAT HE WAS NOT TR YING TO, QUOTE , D ROP HIS APP EALS , END QUOTE , OR TO WAIVE THE OTHER CLAIMS , OTHER THAN THOSE PO RTIONS OF CLAIMS 7 AND 9, HAVING TO DO AS YOU S AID WITH INEFFECTIVE ASSISTANCE OF COUNSEL IN PENALTY PHASE.

JUSTICE: IT SEEMS PRETTY CLEAR THAT HE INTE NDED TO D ROP ALL OF HIS PENALTY PHASE CLAIMS. HE SAYS I WOULD LIKE TO DROPOR NOT CONTINUE WITH THE PENALTY PHASE CLAIMS THAT IHAVE. HOW , AND THEN AFTER , THAT JUST BE GINS A SEVERAL-PAGE COLLOQUY WITH THE COURT, IN WHICH THE COURT WAS VERY INSISTENT THAT HE BE CLEAR ABOUT WHAT HE WA NTED TO DROON HE SEEMS PRETTY CLEAR AND -- TO DROP, AND HE SEEMS PRETTY CLEAR AND WHY IS THAT NOT SUFFICIENT TO WAIVE HISCLAIMS?

I THINK THERE WERE DUAL PARTIES AT FA ULT AND THEDEFENDANT WASN'T ONE OF THEM. THE CAPITAL COLLATERAL COUNSEL WAS AT FAULT. I BELIE VE THE JUDGE WAS A T FAULT BECAUSE I BELIEVE THAT THERE WAS AN AB USE OF DISCRETION IN THE WAY THAT THE COLLOQUY WAS UNDERTAKEN, THAT REALLY GOES BACK TO THE FACT THAT JUDGE CARNY WAS THE TRIAL JUDGE, THA T THERE WAS NO MITIGATION PRESENTED AND HERE AT THE T IME OF THE EVIDENTIARY HEARING, HE WAS STILL NOT A WARE OF ANY MITIGATION OTHER THAN WHATHAD BEEN PLED AND ALSO THE STATE, BECAUSE OF THEIRRESPONSIBILITY TO DO JUSTICE , WHO WAS WELL AWARE OF WHAT HAD BEEN DEVELOPED.

JUSTICE: EVERYBODY EXCEPT THE DEFENDANT WAS AT FAULT FOR HIM WAIVING HIS PENALTY PHASE CLAIMS. THE ONLY ONE WHO HAS NO FAULT IS THE DEFENDANT HERE WHO WAIVED THE CLAIM.

HE DIDN'T KNOW , JUSTICE CANTERO WHAT HE WAS WAIVING. THAT IS WHAT I POINT OUT IN MY BR IEF. THE DEVELOPMENT OF THE CLAIM WAS FILED IN 2000, WHICH I S ESSENTIALLY CLAIM 7 AND CLAIM 9 LITIGATED AT THE EVIDENTIARY HEARING. THERE WAS A N AMEND IN 2003 BUT THAT SIMPLY HAD TO DO WITH A RING CLAIM AND ALSO LETHAL INJECTION CLAIM T DIDN'T REALLY IMPACT THE 2000 PLEA DING. A CONSIDERABLE AMOUNT OF THE M ENTAL HEALTH WORK THAT WAS DONE ON THE CASE , ALL THREE OF THE DEFENSE EXPERTS AS WELL AS THE STATE'S EXPERT, SAW MR. GARCIA , DID THEIR EVALUATION AFTER THAT.

JUSTICE: I WOULD LIKE TO TALK ABOUT THE ISSUE THAT YOU RAISED ABOUT THE FERETTA INQUIRY AND WHY THAT WASN'T SUFFICIENT. CAN YOU POINT IN THE R E CORD AS TO THE COLL OQUY , WHY THE JUDGE ABUSED HIS DISCRETION IN CONDUCTING THE FER ETTA INQ UIRY. WHY WASN'T IT A VALID WAIVER , THOSE ISSUES.

CERTAINLY. JUST TO LOOK AT THE COLLOQUY , ITSELF, THERE IS LANGUAGE IN WHICH THE JUDGE CLEARLY MISSTATING EXACTLY WHAT THE SITUATION, HE TALKS WITH MR. GARCIA ABOUT THE FACT THAT YOU REALIZE IF YOU WAIVE THESE INEFFECTIVE ASSISTANCE CLAIMS , AND YOU DON'T GET RELIEF ON YOUR GU ILT PHASE CLAIMS, THEN YOU ESSENTIALLY GOING TO BE EXECUTED WITH INA COUPLE OF YEARS. NOW , I AM NOT REALLY SURE , I AM CERTAIN THAT IS NOT A CORRECT STATEMENT OF THE L AW.

CHIEF JUSTICE: FIRST OF ALL JUST T O CLARIFY , IT IS NOT FERE TTA. IT IS FERETTA , HE WASN'T ASKING TO REPRESENT HIMSELF ON THE PENALTY PHASE.

THAT IS A VERY GOOD POINT , YOUR HONOR.

CHIEF JUSTICE: HE WAS, THE ISSUE YOU ARE RA ISING WAS IN A KNOWING AND VOLUNTARY WAIVER OF HIS PENALTY PHASE CLAIMS. EVEN THOUGH IT WAS AN EXTREME STATEMENT, THE COURT WAS TRYING TO GE T IN FRONTOF HIM , TO UNDERSTAND THAT IF HE DIDN'T PREVAIL ON HIS G UILT PORTION CLAIMS , THENHE WOULD BE EXECUTED.IN OTHER WORDS THERE WOULDBE NO RELIEF FROM THE DE ATH PENALTY . WHETHER THAT IS A MISS REPRESENTATION, BECAUSE IT MIS TAKE A FEW MORE YE AR S , IT IS STILL GETTING TO UNDERSTAND THE E FFECT OF HIS STATEMENT IN THE PENALTYPHASE CLAIMS .

BUT THE FACT THAT IF THE COURT HAD DENIED ALL OF THE CLAIMS THAT HE WAS DENIED , CLEARLY NOT COMMUNICATING WHAT HE WAS SA YING TO MR . GARCIA, A S WELL AS THOSEOTHER CLAIMS THAT WERE ON THE TA BLE, THE GUILT PHASE CLAIMS AND THE OTHER PENALTYPHASE CLAIMS WHICH WERE NOTA PART OF CLAIM 7 AND CLAIM 9 --

JUSTICE: WHAT BE TTER WAY TO DEMONSTRATE THE DANGER TO THE DEFENDANT OF WAIVING THIS GR OUP OR CATEGORY OF CLAIMS THAN TO SAY DO YOU REALIZE BY DOING THIS , YOU IN ES SENCE ARE TAKING YOUR OWN SE LF TO THE DEATH CHAMBER. THAT IS THAT IT A LOGICAL CONCLUSION, A FTER YOU DO THIS , IS THAT YOU ARE P UTTING YOUR SELF, NOW, AT THE NATURAL RI SK OF BEING EXECUTED, I N OTHER WORDS IN T ERMS OF BRINGING THE SERIOUSNESS OF WHAT THE DEFENDANT IS DOING , WHAT F URTHER, LET'S APPROACH IT FROM A DIFFERENT WAY , ARE YOU CLAIM ING E RROR IN THE ADEQUACY OF THE COURT 'S COLLOQUY WITH THE DEFENDANT?

YE S, YOUR HO NOR .

JUSTICE: WHAT FURTHER WOULD YOU HAVE HAD THE TRIAL COURT DO IN THAT REGARD?

WELL , I HAVE ARGUED IN THE BRIEF THAT THE RU LES PURSUANT TO COON THAT WERE NOT NECESSARY AT A -- THAT WERE NECE SSARY AT A TRIAL IN ORDER TO WAIVE MIT IGATION, SHOULD HAVE BEEN USED IN THIS STEP. CERTAINLY A PU BLIC POLICY KIND OF ARG UMENT.

JUSTICE: THERE HAS BEEN NO CASE THAT APPLIES COON OR THOSE CASES THAT H OLD THAT, EVEN IF A DEFENDANT IN THE INITIAL CASE DECIDES TO WAIVE MITI GATION , THAT COUNSEL HAS TO PROVIDE A PROPER MITIGATION . THERE HAS BEEN NO CASE TRANSFERRING THAT TO THE POSTCONVICTION PROCESS HASTHERE?

NO, THERE HASN'T BEEN , AND THAT IS EXACTLY WHAT I AM HIM ASKING THIS COURT TO L OOK AT AND DO, PARTICULARLY IN THE CIRCUMSTANCE WHEREYOU HAVE A JUDGE WHO FOUND NO MITIGATION , STATUT ORY OR NONSTATUTORY, AT THE TRIAL, WHERE THE TRIAL COUNSEL PRESENTED NO MITIGATION AT THAT TRIAL , NOW THAT SAME JUDGE KNOW INGLY IS NOT G ETTING INTO WHAT EXACTLY IT IS THAT THIS CLIENT IS WAIVING , THAN IS WHAT I THINK IS MISSING HERE. THERE NE EDS T O BE MORE A FFECTION PLAN ATION OF WHAT IS ACTUALLY BEING WAIVED , AND THAT IS WHAT MR . GARCIA DIDN'T DO, AND THAT IS WHAT HE DIDN'T KNOW , I N FA CT.

JUSTICE: I F I M AY ASK AQUESTION, ARE YOU SAYING THAT IN E VERY POSTCONVICTION PROCEEDING THERE, MUST BE S OME POSTCONVICTION CLAIMS ABOUT INEFFE CTIVE NESS OF COUNSEL IN THE PENALTY PHASE , REGARDLESS OF WHETHER THE DEFENDANT WANTS TO ASSERT THEM AND REGARDLESS OF WHETHER THEY ARE V IABLE ?

NO. I THINK OBVI OUSLY THAT HIS CASE SPECIFIC. I MEAN , ANY G IVEN CASE DEPENDING ON WHAT THE INTERSECTION OF THE FACTS AND THE LA W ARE , ARE GOINGTO DETERM INE WHAT THE CLAIMS ARE THAT YOU MAKE. AND IN THIS SITUATION, MR . G ARCIA HAD THREE T IMES VERIFIED HIS 3.85 0. THE INVESTIGATION HAD BEEN DONE, UN LIKE IN MOR A, LIKE ICITED IN MY BRIE F, WHERE IT IS A SI TUATION LIK E IN THEPENALTY PHASE AND THERE IS DISCUSSION GOING ON BETWEEN THE CLIENT LAWYER AS TO WHETHER OR NOT FU RTHER INVESTIGATION ABOUT FA MILY MEMBERS OVERSEAS NEEDS TO BE DONE SO THOSE WITNESSES CAN BE PRE SENTED , AND A S JUSTICE ANSTEAD WAS TALKING ABOUTBEFORE, THE CIRCUMSTANCE COMES UP ABOUT WHETHER OR NOT COUNSEL IS GOING TO CONTINUE TO REP RESENT THE CLIENT IN MORA. IT IS LIKE , W ELL , I DON'T WANT MY COUNSEL IF HE I S GOING TO MAKE ME PRESENTTHESE WITN ESSES . THIS IS A SITUATION IN WHI CH THE INVESTIGATION HAD BEEN DONE , COMPLETED . THE WITNESSE S ON THE WITNESS LIST. THE INFORMATION WAS IN THE RECORDS. THE STATE HAD ALL OF THE ROTS. THEY HAD THE DEPOSITIONS -- ALL THE REPORTS. THEY HAD THE DEPOSITIONS OF ALL FOUR ME NTAL HEALT H EXPERTS.

CHIEF JUSTICE: HOW DOES THAT HELP YOUR CASE? IT SOUNDS LIKE THERE FOR IT IS EVEN MORE AFTER KNOWING WAIVER SINCE HE HAD AL L THAT INFORMATION.

HE HAD NEVER SEEN ANY OF THE DEPOSITI ONS. HE HAD NEVER BEEN COMMUNICATED ABOUT WHAT THE REPORTS WERE THAT THE EXPERTS HAD SEEN .

CHIEF JUSTICE: NOW YOU ARE ASS UMING INEFFECTIVE ASSISTANCE OF HIS COLLATERAL COUNSEL?

NO, YOUR HONOR, I A M SAYING THAT IS WHATHAPPENED. OBVIOUSLY IN FLOR IDA --

CHIEF JUSTICE: WHY DIDN'T THE LAWYER JUMP IN THERE AND SAY HE D O ESN'T KNOW HOW G REAT MY CASE IS. I HAVE GOT TO GO TALK TO H IM?

MY QUESTION IS , MY ANSWER IS I DON'T WANT A N SWER ANSWER TO THAT BECAUSE -- MY ANSWER IS I DON 'T KNOW THEANSWER TO THAT BECAUSE I WAS N'T IN THE COURTROOM THAT DAY. MY ANSWER IS WHY DIDN'T THECOURT IN SIST ON A PRO FFER PURSUANT TO MORA AND PURSUANT T O COON?

JUSTICE: SO WHAT IS THE SUBSTANTIVE DIFFERENCE BETWEEN WHAT IS IN THE MOTIONS AS VERIFIED AND SIGNED AS TO WHAT AN ATTORNEY WOULD HAVE PROFFERED ?

GREAT QUESTION JUS TICE BELL . THE DEPOSITIONS ARE IN THE RECORD NOW. THE REPORTS ARE IN THE RECORD, BUT SPECIFICALLY LETME JUST G O THROUGH QUIC KLY WHAT I CAN SAY ABOUT THAT . AS TO THE NEUROPSYCHOLOGISTTHERE. SCHREPPLAND , HE SPECIFICALLY IDENTIFIED DISORDERS , ANTISOCIAL PERSONALITY AND ALCOHOL S UBSTANCE ABUSE AND ANTISOCIAL PERSONALITY DISORDER, AND HE F OUND BOTH STATUTORY MENTAL HEALTH MITIGATORS. DR . H YDE THE NEUROLOGIST, DID A NEUROLOGICAL EVALUATION. HE FOUND SPECIFIC ABNORMALITIES ON HIS NEUROLOGICAL EVALUATION THATWERE INDI CATIVE OF FR ONTAL LOBE DYSFUNCTION. HE AC TUALLY MADE RECOMMENDATIONS FOR MEDICATION THAT THE CLIENT COULD BE PUT ON TO HELP REMEDY THEM.

JUSTICE: WHAT WERE THESE EXPERTS --

VERY GENERIC SORT OF ISSUES ABOUT MENTAL HEALTH PROBLEMS. IT WAS PLED GENERALLY AS POSSIBLE IN 3.850 UNDER THE OLD RU LE. THAT IS THE W A Y IT WAS PLED.IT WAS A FA IRLY SPECIFIC SOCIAL HISTORY, BUT IT WAS FLESHED OUT IN THE SA LTON DEPOSITION REPO RT. SHE WE NT TO TEXAS AND INTERVIEWED SIX FAMILY MEMBERS WHO HAD NEVER BEEN INTERVIEWED BE FORE, AND HER REPORT SPECIFIES AND SPECIFICALLY SUPPORTS THE FAMILY HIST ORY THAT WAS PLED GENERALLY.

CHIEF JUSTICE: FIRST OFALL , I WANT TO MAKE SURE YOU GET TO, IF YOU WANT TO ARGUE ANY OF YOUR G UILT CLAIMS , BUT AFTER THIS WAIVER OCCURRED, THEN, THERE WAS AN EVIDENTIARY HEARIN G ON THE GUILT PHASE CLAIMED.

THERE WAS A VERY BRIEF EVIDENTIARY HEAR ING ON THEGUILT PHASE IN WHICH THE O NLY W ITNESS WAS TRIAL TRIAL COUNSEL.

CHIEF JUSTICE: AND WE ARE SUPPOSEED TO ASSUME THAT THE LAWYER REPRESENTING MR. GARCIA DURING THAT TIME NEVER SAID, YOU KNOW I WOULD REALLY LIKE YOU TO REEVALUATE YOUR WAIVER, BECAUSE WE HAVE GOT SOME GREAT INFORMATION HERE THAT CAN SAVE YOU FROM THE DEATH PENALTY. I JUST FIND THIS , I GUESS , I DON'T FIND THIS A VERY COMPELLING SITUATION , AND IDON'T SEE THAT THE , IF ANYONE WAS IN EXCUSEABLE , IT IS THE CLIENT , AS JUSTICE CANTERO SAID, SO I WOULD SUGGEST THAT YOU MOVE ON TO DISCUSS YOUR OTHER CLAIMS ONTHE GUILT PHASE .

I AM GOING RESERVE MOST OF THE REST OF MY TIME, YOUR H ONOR, BU T I DO WANT TO BRIEFLY RESPOND TO.THAT I THINK IT IS IMPORTANT F OR THE COURT TO RECOGNIZE THAT COUNSEL IN THIS CASE AT THE EVIDENTIARY HEARING WASTHE SAME LAWYER WHO REPRESENTED MR. COON IN THE COON CASE, AND I BELIEVETHAT HE WAS RE LYING ON THE RESULTS OF COON FOR POTENTIAL RELIEF IN THIS CASE, AND THAT IS ONE OF THE REASONS THAT HE DOESN'T DO WHAT I BELI EVE HE SHOULD HAVE DONE.IT IS NOT A QUESTION OF INEFFECTIVE ASSISTANCE. IT IS A QUESTION OF HAVING A STATUTORY RIGHT I N F L ORIDA , POSTCONVICTIONREPRESENTATION, AND HE DIDN'T DO WHAT A LAWYER SHOULD HAVE DONE.

CHIEF JUSTICE: THEN WHY DIDN'T HE SAY , JUDGE, I NEED TO PROF FER THIS UNDER COON? THAT EVEN MAKES I T MORE IN EXCUSEABLE. HE WAS THINKING THIS IS GOING TO BE AWAY TO GET A REVERSAL?

YOUR HONOR , I THINK THAT MAY WELL BE TR UE, AND ITHINK TO THE EXTENT THAT THAT IS T RUE, I CAN'T IMAGINE THAT THE CLIENT WASINFORMED ABOUT THAT , AND THECLIENT DIDN'T KNOW IF ABOUT THIS INFO RMATION .

JUSTICE: I WOULD LIKE TO GULF YOU AN OPPORTUNITY, I WOULD LIKE YOU TO ADDRESS THE ISSUE ABOUT COUNSEL'S FAILURE TO BRING OUT IN TRIAL , THE RELATIONSHIP BETWEEN THE WITNESSES FELICIANO , ELIZABETH AND ADRIANO PEREZ .

JUDGE CARNY'S REPORT SAID THAT THE EVI DENCE ESTABLISHED BY THE DETECTIVE OF MS. CRUZ IN '93 WAS NOT A CREDIBLE AC COUNT.

JUSTICE: THAT WAS NOT THE--

THE WAY THAT FITS INTO THIS BO RDER IS I DON'T BELIEVE THE FACTS SUPPORTTHAT AND THE FINDINGS ABOUT THE RELEVA NCE OF THE RELATIONSHIP OR MR . DIAZ'S TESTIMONY AT THE EVID ENTIARY HEARING, BECAUSE MS. PEREZ SAID IN HER MEMORIZATION OF TESTIMONY WHICH WAS LONGER THAN THE REST OF THE EVIDENTIARY HEARING , WERE SEVERAL THIN GS , COMPLETELY CONTRADICTED HER PREVIOUS TESTIMONY.SHE ADMITTED THAT SHE WAS RELATED TO MR . AGUAYO, THAT HE WAS MARR IED TO HER SISTER LINDA , THAT THE CODEFENDANT ENRIQUE HERNANDEZ , HIS M OTHER WAS ONE OF HER BEST FRIENDS AND SHE HAD KNOWNHIM FOR Y EARS AND J OSE AND JORGE FELICIANO WERE RELATED TO HER MOTHER-IN-LAW. ALL OF THIS WAS UNKNOWN, THE STATE DE NIED RELATIONSHIPS A T ALL AND IT WAS CL EARLY B IAS AND HER TE STIMONY B ASED UPON THESE RELATI ONSHIPS AND IN FACT IT TURNED UP IN OUR DISCOVERY D URING POSTCONVICTION THAT SHE, THAT IS MS. PEREZ-CRUZ WAS ACTUALLY VIS ITING THE CODEFENDANT AT UNION CORRECTIONAL INSTITUTION IN THE TWO YEARS THAT SHE TESTIFIED BEF ORE I N 19 90 AND '91 , AND APPARENTLY WITHOUTTHE KNOWLEDGE OF THE STATE AND CERTAINLY WITH OUT THE KNOWLEDGE OF THE DEFENSE, AND SHE SI MPLY SAID SHENEVER TOLD ANYBODY ABOUTTHAT, AND FIN ALLY, SHE, ALSO , SAID THAT ENRIQUE FERNANDEZ , WHO SHE I DENTIFIED IN HER 1983 STATEMENT AS BEING SOMEBODY WHO IS PRESENT AT THE DISCUSSION OUT IN THE FIELDS , IN WHICH MR . G ARCIA SUPPOSEDLY INCULPATE ED HIMSELF IN THE CRIME, SHE TESTIFIED IN HER MEMORIZATION OF TESTIMONYTHAT SHE NEVER SAID THAT . IN FACT SHE TEST IFIED THAT SHE NEVER SAID MOST OF THE THING THAT IS SHE SAID IN HER 1 983 STATEM ENT, ANDBASED ON THAT THE JUDGEFOUND THAT THE 1983 POLICE REPORT WAS NOT CREDIBLE.

CHIEF JUSTICE: WHAT ABOUTTHE TRIAL COUNSEL SAID HE WOULDN'T HAVE EMPHASIZED THE WITNESSES ' RELATIONSHIP AT TRIAL.WHAT WAS --

I FRAN KLY DON'TUNDERSTAND THAT TESTIMONY, YOUR HONO R.IT IS SIMPLY HE DIDN'T UNDERSTAND IN THE CONTEXT OF HIS TESTIM ONY, THE RELEVANCE OR THE MATERIALITY OF THEFACT THAT THE THREE MAIN WITNESSES AGAINST MR . GA RCIA , A LONG WITH MS. PEREZ, WERE ALL RELATED TO EACH OTH ER. HE NEVER KNEW THAT. HE NEVER TRIED TO EXPL OIT THAT ON CROSS-EXAMINATION, BECAUSE HE NEVER INVESTIGATED AND NEVER FOUND IT OUT. I BETTER HOLD THE REST OF MY TIME FOR REBUTTAL.

CHIEF JUSTICE: THANK YOU.

MAY IT PLEASE THE COURT. SANDRA JAGGARD ASSI STANT ATTORNEY GENERAL ON BEHALFOF THE STATE. THE COLLOQUY W ITH THE STATE WAS MORE THAN SUFFICIENT, PARTICULARLY CONSIDERINGTHAT THE DEFENDANT IN ORDER TO EVE N BE IN A PO SITION --

CHIEF JUSTICE: MS. JAGGARD , YOU ARE A LITTLE QUICK THIS MORNING.

IN ORDER FOR THE DEFENDANT TO EVEN BE IN A POSITION TO BE AT AN EVIDENTIARY HEARING WHERETHIS ISSUE COULD COME UP,SUCH THAT HE WOULD BE WAIVING THE CLAIM, HE HAD T O APPLY ON A FAC IALLY SUFFICIENT MOTION.HE HAD TO HAVE SI GNED AND VERIFIED THAT MOT ION. HE HAD TO HAVE KNOWN WHAT THE SITUATION WAS.

CHIEF JUSTICE: THIS IS A V ERY UNUSUAL SITUATION. USUALLY WE HAVE DEFENDANTS THAT ARE WAIVING EVERYTHING , AND THEN WE HAVE THEM GO THROUGH A COLL OQUY AND MAKE SURE THEY ARE COMPETENT TO WAIVE THEIR POSTCONVICTION CLAIMS .

YES.

CHIEF JUSTICE: I JUST HAVEN'T SEEN ONE WHERE SOMEBODY IS JUST PICKING TWO CLAIMS THAT APPARENTLY THERE W ERE EXP ERTS FOR , AND WITNESSES AVAILABLE , AND SAY ING I AM GOING TO PICK AND CHOOSE AND WAIVE THOSE TWO CLAIMS . DOES --

DEFENDANTS ON OCCASION DON'T WANT TO PRESENT MITIGATION EVIDENCE , AND AS FAR AS THE STATEMENT THAT THE DEFENDANT , WHETHER ORNOT THERE WAS A WAIVER OF MITIGATION AT TRIAL , WE DON'T KNOW. THIS IS A PRE-COON CASE, AND SO WE DON'T KNOW WHAT INSTRUCTIONS, BECAUSE THE DEFENDANT WAIVED THE CLAIM, AND WE DIDN'T HEAR FROM TRIAL COUNSEL ABOUT WHAT INSTRUCTIONS THE DEFENDANT G AVE TRIAL COUNSEL ABOUT PRESENTING MITIGATION.

CHIEF JUSTICE: SO THERE WAS A WAIVER OF PENALTY, THAT IS WHAT I WANT -- A T TRIAL?

WE DO KNOW --

CHIEF JUSTICE: AT TRIAL.

WE WE AT TRIAL THAT COUNSEL C HOSE NOT TO PRESENT PRISONER EVIDENCE BECAUSE HE WAS AF RAID OF THE REBUTTAL OF THAT AND HE DIDN'T WANT THE JU RY TO KNOW THE HISTORY OF THE CASE, AND THAT HE CHOSE NOT TO PRESENTEVIDENCE ABOUT THE CODEFENDANT 'S FAMILY. WITH REGARD TO MITIGATION BECAUSE THIS IS A A PRE- COON , WE DON'T KNOW WHAT HAPPENED BETWEEN COUNSEL AND THE DEFENDANT ABOUT WAIVING MITIGATION.

CHIEF JUSTICE: DID THEDEFENSE LAWYER SAY I INSTRUCTED NOT TO PUT ON MITIGATION?

NO , YOUR HONOR. IT IS A PRE-COON CASE. WE DON'T KNOW THAT WITHOUTTHE EVIDEN TIARY HEARING. THAT IS WHY WE NOW HAVE COON, SO WE KNOW THAT .

CHIEF JUSTICE: DOES THE TRIAL LAWYER IN THE CASE NOTSAY IN FACT WHAT HAPPENED?

I BELI EVE HE SPOKE TO THE STATE PRIV ATELY AND SO THE STATE DOES KNOW WHAT HE SAID BUT THAT IS NOT IN THE RECORD.

JUSTICE: SO AT THE AC TUAL PENALTY PHASE OF THIS CASE,THERE WAS NO MITIGATORS FOUND, CORREC T?

THERE WAS NO TRADITIONAL MITIGATION PRESENTED TO THE JURY.

JUSTICE: AND SO NO MITIGATION WHATSOEVER WAS PRESENTED.WAS THERE ANY ARGUMENT MADE BY COUNSEL? WHAT ACTUALLY WAS THE DEFENSE POSTURE AT THE ACTUAL PENALTY PHAS E?

I BELIEVE THEY WERE ARGUING FOR THE MENTAL MITIGATORS, BASED ON THE EVIDENCE ABOUT THE INTOXICATION FROM THE TRIAL , AND HIS STATE AT THE TIME , BASED ON WHAT THEY HAD PRESENTED IN MITIGATION AT THE TRIAL.

CHIEF JUSTICE: WAS THEREAN ISSUE OF HIS COMPETENCY TO WAIVE THE DISCREET CLAIMS? NORMALLY, A GAIN , THAT IS W HY I ASKED , W HEN WE ARE SIT TING , I S THERE A QU ESTION OF MR . GARCIA'S COMPETENCY ?

NO. NO QUE STION OF MR . GARCIA'S COMPETENCY HAS EVER BEEN RAISED.

CHIEF JUSTICE: I GUESSWHAT I AM CONCERNED ABOUT, WHEN WE HAVE A WAIVER OF ALL OF THE CLAIMS, WE REQUIRE THERE TO BE A COMPET ENCY EVALUATION.

IF FER ETTA - TYPE IN QUIRY , IF THE DOZIER INQUIRY R OSES A COMPETENCY HEARING, WE REQUIRE IT UNDER DEROACH A. WHEN YOU READ THE COLLOQUYRAISED, THIS ISN'T A YES/NO COLLOQUY. HE IS HAV ING AN EXTENDED DISCUSSION WITH THE TRIALCOURT EXPLAINING THAT HE HAS GONE BACK AND FORTH, SOMETIMESING TO PRESENT -- STIPULATIONS WILLING TO PRESENT MITIGATING EVIDENCE AND SOME TIMES HE HAS N'T, BUT NOW HE I S PRESENTING MITIGATING EVIDENCE AND HE DOESN'T WANT TO DO IT. IT IS NOT A BRIEF DO YOU UNDERSTAND THIS CLAIM? IT GOES ON FOR PAGE WHERE IS HE IS ACTUALLY TALKING BACK AND FORTH WITH THE TRIAL COURT.

CHIEF JUSTICE: HE SAYS THERE HAVE BEEN TI MES WHEN I WANT TO GO FOR WARD AND TIMES WHEN I JUST COULDN'T STAND IT, BUT I TOLD HIM LAST WE EK THAT I WANT ED TO DO THIS. I WAS SU RE. SEEMS TO BE MORE OF A STATEMENT OF SOMEBODY THAT JUST WANTS TO GET THIS OVER WITH.

WELL, BUT HE CHREEFERL DIDN'T WANT TO GET IT OVER WITH -- HE CLEARLY DIDN'T WANT TO GET IT OVER WITH , BECAUSE HE CONTINUED ON WITH HIS GU IL T PHASE CLAIM .

JUSTICE: HE HAD BEEN THERE FOR 20 YEARS, IN PRISON FOR 20 YEARS , B Y THE TIME THIS ALL TOOK PL ACE . RIGHT?

WELL , I DON'T BELIEV E THAT IS TRUE , BECAUSE HE WASN'T ARRE STED U N TIL '85.

HE HAD BEEN THERE FOR 18 YEARS.

YEAH.

CHIEF JUSTICE: WHAT ABOUT , ON THE KBLT PHASE , I AM GOING -- ON THE GUILT PHASE, CLEARLY THIS IS A HORRENDOUS CRIME. THE , WAS THERE ANY PHYSICAL EVIDENCE TYING HIM TO THESE MURDERS ?

PHYSICAL EVIDENCE , NO. AT THE CRIME SCENE. WHAT TIED HIM TO THE MURDERS WAS HE L EFT OFF IN THAT NEIGHBORHOOD THAT PREVIOUS EVENING. HE SHOIPS , THE MU RDERS OCCURRED AR OUND 6:30 IN THEMORNING. HE SHO WS UP -- HE SHOW S UP , THE MURDERS OCCURRED AT 6:30 IN THE MORNING. HE SHOWS UP BLOODY A T SEVEN.

CHIEF JUSTICE: WHO TESTIFIED TO T HAT?

THE M OTHER AND SON ANDTHE JURY K N EW THAT.

CHIEF JUSTICE: THE JURY KNEW THAT THEY WERE MOTHER AND SON. THE BL OODY C L OTHES WERE NEVER RECOVERED?

I DON'T BELIEVE SO.

CHIEF JUSTICE: SO HE IS TESTIFYING, THE MO THER ANDTHE SON.

AND THEN MS. PEREZ , WHO--

CHIEF JUSTICE: IS THIS THE SISTER-IN-LAW?

AS IT TURNS O UT IS THESISTER-IN-LAW OF MR . AGUAYO.

CHIEF JUSTICE: DOES THESTATE KNOW THAT?

THERE IS NO EVIDENCE THAT THE STATE KNOWS THAT. THERE IS ONE POLICE REPORT THAT DOESN'T LIST HER AS MS. PEREZ. IT CALLS HER MS. CRUZ.

CHIEF JUSTICE: THE STATE THOUGHT IT WAS VERY, VERY IMPORTANT T O EMPHASIZE THATTHERE WAS NO RELATIONSHIP. THEY SAY THAT SEVERAL TIM ES. I DON'T UNDERSTAND , I GU ESS , H OW IN A CASE WHERE THERE ARE , IS NO PHYS ICAL EVIDENCE , IS HO W THEY SAY THAT T HEY WOULDN'T HAVE BROUGHT OUT THE RELATION SHIP BETWEEN THETHREE WITNES SES IF THEY HAD KNOWN IT. I MEAN , ISN'T THAT GROUNDSFOR IMPEACHING , AND THEY KNOW THE CODEFENDANT , WHO GETS A LIFE SENTENCE?

WELL , THE LAST THINGDEFENSE COUNSEL WANTED TO DO WAS TALK ABOUT THE CODEFENDANT.

CHIEF JUSTICE: WHO WASTHE CODEFENDANT?

HIS N AME IS ENRIQUE FERNANDEZ , AN OTHER MIGRANT WORKER.

CHIEF JUSTICE: WHAT WAS HIS ROLE IN THE CRIME?

I BELIEVE HE D ROVE THE DEFENDANT TO THE SCENE OF THE CRIM E AND THEN DROVE HIM A WAY OR WAS THERE. AND HE CONFESSED.

CHIEF JUSTICE: DID HE CONFESS?

HE CONFESSED AND IMPINDICATED THE DEFENDANT , AND DEFENSE COUNSEL DID -- AND IMPLICATED THE DEFENDANT AND DEFENSE COUNSEL DID NOTWANT TO TALK ABOUT MR . FERNANDEZ AT ALL, BECAUSE SOMEONE MENTIONED AS TO WHY HE T URNED AGAINST THE DEFENDANT , AND IT WAS BECAUSE HE HAD IMP LICATED THE DEFENDANT. HE WANTED TO IS STAY AS FAR AWAY FROM MENTIONING MR . HERNANDEZ AS HUMANLY POSSIBLE.

CHIEF JUSTICE: THAT WOULDN'T MEAN THAT HE WOULDN'T WANT TO EMPHASIZE THE RELATIONSHIP BETWEEN ALL THREE OF THEM. ANOTHER STATE NEVER SAID THAT THEY WEREN'T RELATED. WHAT THEY SAID IS WE HAVE WITNESSES WHO ARE UNRELATED IN TIME AND CIRCUMSTANCE. MS. PEREZ HEARD THE STATEMENT IN THE FIELDS AFTER THE C RIME. MS. FELICIANO AND MR . AGUAY O SAID IT UNRELATED AT THE TIME OF THE CRIME. THEY DIDN'T KNOW THEY WERE FAMILY MEMBERS. THEY KNEW THAT T WO WERE FAMILY MEMBERS, SO THERE IS NO WAY THAT THE JURY TOOKTHAT STATEMENT AS THESE PEOPLE DON'T KNOW ONE ANOTHER AT ALL.

CHIEF JUSTICE: D URING CLOSINGS THE PROSECUTOR SAID THAT THE CIVI LIAN WITNESSES WERE NOT RELATED IN ANY WAY TO EACH OTHER OR TO ANY OF THE OTHER WITNESSE S IN THE CASE.

AND CLEARLY WITH THE JURY KNOWING THAT AGUAYO AND FELICIANO ARE MOTHER ANDSON. THEY DON'T MEAN THAT THEY DON'T HAVE A FAMILIAL RELATIONSHIP WITH ONE ANOTHER. COUNSEL SAID IF I HADSOMETHING THAT SHOW ED THAT THEY HAD SOME BAD BLOOD IN THE RELATIONSHIP THAT, THEY WERE CONSPI RING, DOING SOMETHING ELSE , I WOULD HAVE USED THE FACT THEY ARE FAMILY MEMBERS BUT NO NE OF THAT IS T R UE, AND WHILE MY OPPONENT REFERS TO --

CHIEF JUSTICE: DO YOU THINK SOMEBODY WOULD AR GUE , ISN'T IT A LITTLE STRANGE THAT THE ONLY THREE WITNESSES THAT PUT HIM AT THE SC ENE ARE ALL RELATED TO ONE ANOTHER?

AND COUNSEL SAID NO, BECAUSE IN THIS PARTICULAR COMMUNITY IN SO UTH DADE IN THE MIGRANT W ORKER COMMUNITY , A LOT OF THESE PEOPLE ARE REL ATEED TO ONE ANOTHERDIFFERENTLY, AND THEREFORE HE DIDN'T FEEL THE NE ED TO PRESENT ANYTHING ABOUT THIS. HE DIDN'T THINK IT WOULD HAVE ANY ATTRACTION -- ANY TRACKS. -- ANY TRACTION.

AND ELIZABETH --

- - FELICIANO IS AGUAYO'S MOTHER , AND THEN THE SISTER-IN-LAW BETW EEN AGUAYO AND PERE Z, AND PEREZ SAYS BASICALLY , YEA H, THAT IS MY SISTER'S HUS BAND BUT I DIDN'T RE ALLY ASSOCIATE WITH HIM.I DIDN'T DO, BECAUSE THE THEORY WAS IF YOU INVESTIGATED ALL OF THIS YOU WOULD FIND OUT THAT THEY ALL CON SP IRD -- CONS PIRED , BUT MS. PEREZ SAID THAT DIDN'T HAPPEN. SHE DIDN'T SOCIALIZE WITH THESE PEOPLE. SHE NEVER SOCIALIZED WITH THEM.

JUSTICE: WAS THERE A REWARD?

THERE WAS A REWARD AND THE WITNESSES ' TESTIMONY WAS THAT NONE OF THEM WERE LOOKING FOR IT AND THE ONLY ONE THAT KNEW ABOU T IT WAS FELICIANO.

JUSTICE: DID HE EVER ATTEMPT TO GET THE REWARD?

NO. THEY NEVER ATTE MPTED TO GET THE REWA RD. THERE HAS NEVER BEEN A SUGGESTION THAT THEY ATTEMPTED TO GET THE REWARD. THERE IS A CLAIM THAT THE FAMILIAR RELATIONSHIP IS GOING TO LEAD TO THIS EVIDENCE, BUT WHE N YOU HAD THE EVIDENTI ARY HEARING, THAT DIDN'T HAPPEN.

CHIEF JUSTICE: HE DIDN'T COME FORWARD RIGHT A WAY. YOU SAID HE WASN'T ARRESTED U NTIL '85 FOR THIS CRIME AND IT OCCURRED IN '83?

NO. THEY WERE INTERVIEWING PEOPLE DO WN THERE. WE DIDN'T HAVE PHYSICAL EVIDENCE AT THE CRIME SCE NE. MS. PEREZ DE NIED MA KING THAT STATEMENT IN THE PO LICE REPORT. IT WAS FO UND WRONG. A WR ON G NA ME, A WRONG ADDRESS. IT ATTRIBUTES THE STATEMENTS MADE TO MS. FELICIANO AND NOT MS. PEREZ. THE NAME IS CRUZ IN THEREPORT AND IT IS PEREZ. IT IS WRONG, WRONG , WRONG , WRONG , AND THE TRIAL COURT HAVING LIST E NED TO THE EVIDENCE -- LISTENED TO THE EVIDENCE AND READ THE PERPETUATED TESTIM ONY , SHE SAI D IT WAS CREDIBLE ANDCONSISTENT WITH MS. PEREZ'S TESTIMONY .

JUSTICE: A 198 3 REPORT THAT WAS MADE AT OR AROUNDTHE TIME THAT THE MU RDER ACTUALLY TOOK P LACE , SO IT S EEMS PRETTY INCREDIBLE --

YES.

JUSTICE: -- TO ME ANYWAY THAT ALL OF THIS STUFF IN THIS REPORT NEVER TOOK PL ACE OR SOMEONE ELSE WAS THE PERSON THEY WERE INTERVIEWING?

SHE SAYS SHE DID TALK TOTHE POLICE BUT NONE OF THE DETAILS IN THE STATEMEN T ARE CORRECT ABOUT WHAT SHE SAID TO THEM. IT DOESN'T HAVE HER NAME IN IT. IT HAS THE OTHER IMAGINARY PERSON'S NAME IN IT. THE STATEMENTS THAT WE ARE TALKING ABOUT ARE ATTRIBUTED TO MS. FELICIANO. THE POLICE OFFICER MADE NUMEROUS MISTAKES IN THAT REPORT, AND , YES , THE FACT THAT MS. PEREZ DIDN'T COME FORWARD WITH THE CONVERSATION WAS BROUGHTBEFORE THE JURY AT TRIAL IMMEDIATELY.A LL OF THAT CA ME OUT AT TRIAL . THE REPORT IS SIMPLY INCORRECT.

JUSTICE: WHEN DID SHE MAKE HER FIRST STATEMENT?

SHE DID SPEAK TO THE POLICE, THEN SHE DENIE S MAKING ANY OF THE STATEMENTS IN THERE. SHE SAYS SHE DIDN'T TELL THEM ABOUT HAVING OVERHEARDTHE STATEMENT IN THE FIELD, BECAUSE THEY NEVER AS KED HERAND SHE DIDN'T , SHE THOUGHTIT WAS A JOKE ORIGINALLY . SHE COMES FORWARD SOME TIME LATER , AND I DON'T RE CALL EXACTLY WHEN. BUT IT WAS MUCH LATER IN TIME. UNLESS THE COUR T HAS ANY OTHER QUESTIONS, THE STATE RESPECTFULLY REQUESTS YOU AFFIRM.

CHIEF JUSTICE: MR. HENRY -- MR . HEN NIS, REBUTTAL.

TO CO RRECT A STATEMENTTHAT I MADE , COUNSEL ON THE MORA CASE NOT COON , HE WAS COUNSEL.I APOLOGIZE FOR THAT .

JUSTICE: CAN YOU HELP US WITH OBVIOUSLY WHAT WE ARE SEARCHING FOR HERE IS SOMETHING IN THE RE CORD THAT WOULD DEMONSTRATE EXACTLYWHAT WAS GOING ON , OTHER THAN WHAT THE STATE SUGGESTIONS AND THAT IS THAT AT THE ORIGINAL TRIAL , THAT THERE IS SOME INDICATION THAT HE DIDN'T WANT TO PUT ON MITIGATION , AND THAT THIS IS JUST A CONTINUATION OF THAT A DDED TO , HERE , THAT, IN THIS NEW FORM. IS THERE ANY THING EL SE ON THE RECORD , ANY SUGGESTION ON YOUR P ART O F A COMPETENCY ISSUE?

WHAT I WOULD SU GGEST TO THE COURT TO DO IS L OO K CLOSELY AT THE DEPOSITION OF FAY SULTAN, IN WH ICH THE STATE ATTORNEY SI TTING IN ON THE DEPOSITION, ENGAGED DR . SULTAN IN A FA IRLY LONG DISCUSSION ABOUT THE MENTAL STATE OF MR . GARCIA.

CHIEF JUSTICE: I DON'T THINK WE SHOULD BE , YOUSHOULD BE SUGGEST WA G WE LOOK AT. THE QUESTION IS -- SUGGESTING WHAT WE LOOK AT. THE QUESTION IS YOU HAVEN'T RAISED AN IS SUE OF MR . GARCIA'S COMPETENCY . SO WE HAVE TO AS SUME THAT IN GOOD FAITH YOU LOOKED AT THAT AND THAT YOU DO NOT HAVE CONCERNS ABOUT HIS COMPETENCY.

I THINK THAT THE DEPOSITION OF DR . SULTAN DOES AD DRESS THE COMPETENCY ISSUE , AND JUST VERY BRIEFLY, THE COLLOQUY --

CHIEF JUSTICE: MR . HENN IS, YOU ARE AN EXPERIENCE ED LAWYER HERE.

I APPRECIA TE THAT , JUSTICE PARIENTE.

CHIEF JUSTICE: I WOULDAPPRECIATE THERE FOR A STRAIGHTFORWARD ANSWER .

SURE.

CHIEF JUSTICE: YOU DO NOTRAISE , Y OU DID NOT RAISE IN THE BRIEF A COMPETENCY ISSUE AS TO MR . GARCIA'S ABIL ITY TO WAIVE THE RIGHT , BUT YOUHAVE ONLY STATED THAT YOU DON'T FEEL IT WAS A KNOWING WAIVER , BECAUSE HE WAS NOT AS AWARE OF ALL OF THE MITIGATION THAT COULD HAVE BEEN PRESENTED AT THE EVIDENTIARY HEARING. CORRECT?

AS A PRACTITIONER , THERE WAS NO COMPETENCY ISSUE RAISED ANYWHERE IN THE RECORD. NOW , AS TO WHETHER OR NOT ON APPEAL FR OM A POSTCONVICTION DENIAL , I WOULD BE IN A POSITION BEFORE THIS COURT TO RAISE A COMPETENCY ISSUE NOW , FRANKLY I AM NOT REALLY SURE, YOUR HONOR , SUE RESPONSIBILITY'.I CAN'T PO INT TO -- SUE A SPONTE. I CAN'T POI NT TO YOU ANYWHERE IN THE RE CORD THAT THAT HAS BEEN DONE. I CAN POINT T O M OR A , WHERE COMPETENCY IS R A ISED PRETRIAL AND IN BETW EEN.

CHIEF JUSTICE: I DON'T FIND THAT A VERY SATISFACTORY ANS WER. YOU HAVE HAD TIME TO RAISE ISSUES THAT WEREN'T RAISED BELOW AND SOMEONE'S COMPETENCY, I THI NK WOULD BE AN OBLIGATION TO RAISE, IF THERE WAS A GENUINE CONCERNABOUT A DEFENDAN T'S COMPETENCY.

I GUESS MY QUESTION WOULD SIMPLY BE AT WHAT POINT CAN THAT BE RAISED , ONCE THE EVIDENCE YAEFER HEARING IS OVER -- ONCE THE EVIDEN TIARY HEARING IS OVER AND YOU AREAN APPEAL. I AM NOT SURE I T CAN B E RAISED NO W. L ET ME POINT OUT IN THE 1993 REPORT THAT WE WERE TALKING ABOUT AS WELL , THE PEREZ REPORT. JOSEPHINA CR UZ , THE NAME INTHE REPORT IN THE MEMORLANDOIZATION OF HER TESTIMONY, THE WITNESS DID ADMIT THAT SHE USED THE NAME FINA CRUZ , AND THE ADDRESS THAT THE POLICE OFFICER INTERVIEWED HER AT , SHE ADMITTED THAT WAS HER FATHER'S ADDR ESS, SO IN FACT THAT REPORT IS NOT CONTRADICTED AT ALL AND ONE FINAL THOUGHT ABOUT COMPETENCY, THE RE ASON FOR ASKING FOR THE CASE T O BE REMANDED BACK TO THE CIRCUIT COURT FOR AN APPROPRIATE WAIVER, WOULD BE IN MY OPINION, THAT IS PRECISELY THE PLAC E FOR A COMPETENCY TO BE RAISED. IT CAN'T , I DON'T BELIEVE IT C AN BE , I HAVE NO INDICATION THAT IT CAN B E RAISED SP ONTE BY ME , E ITHER IN THIS -- RAISED SUA SPONTE B Y ME I N THIS COURT OR BY BRIEF IN O RAL ARGUME NT, AND THAT MIGHT BE AN ISSUE IF WE GO BACK TO CIRCUIT COURT AND HAVE WHAT I CONSIDER TO BE A PROPER WA IVER IN WHICH THE COURT ME ETS ITS RESPONSIBILITY TO ACTUALLY TRY AND GE T ON THE RECORD WHAT THE MITIGATION IS , SO THAT THERE IS A RECORD SHOWING WHAT IS WAIVED, SO THAT THE STATE CAN SEE THAT JUSTICE IS DONE AND SO THAT POSTCONVICTION COUNSEL CAN MEET ITS RESPONSIBILITY TO ITS CL IENT , IF IN FACT THEREIS A COMPETENCY ISSUE, SO IT COULD BE RAISED.

CHIEF JUSTICE: THANK YOU. YOUR TIME IS EXPIRED. THE COURT WILL TAKE THIS CASE UNDER CONSIDERATION AND T AKE ITS MO RNING RECESS OF 15 MINUTES.

MARSHAL: PLEASE RI SE.