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Andrew Michael Gosciminski v. State of Florida
SC05-1126

THE
FINAL CASE, THIS MORNING,
IS -- STATE OF FLORIDA
>>> GOOD MORNING GARY ON
BEHALF!!$$!!!!!!!!!!
BEHALFCH.
>> MR. KROM WL OF YOU ENORMOUS
POINTS IT MAY HELP IF YOU
WOULD DIRECT OUR ATTENTION TO
WHERE YOU ARE GOING TO
CONCENTRATES YOUR EFFORTS.
>> YES, SIR, MR. CHIEF
JUSTICE.
I HAVE AN ABUNDANCE OF ISSUES
HERE, I WOULD LIKE TO FIRST
DISCUSS, THE FIRST ISSUE,
WHICH PERTAINS TO JURY SELECT!!$$!!!!!!!!!!
SELECTION, AND THEN, BECAUSE
THE SECOND SUPPLEMENTAL RECORD
WAS FILED AFTER MY INITIALLY
BRIEF I NEED TO POINTS 11 AND
12, AND THEN, IF --
>> EXCUSE ME.
>> WHAT IS 11 AND 12 THE 11
AND 12 HAS TO DO WITH HEARSAY
STATEMENTS MADE BY THE VICTIM
JOAN LOT OFMAN TO HER SISTER,
WHICH WERE REPEATED BY A
POLICE OFFICER, AND HIS
WRITTEN INTERROGATION OF A
DEFENDANT SUBSEQUENTLY WERE
REPEATED BY THE TESTIMONY OF
THE $$VICTIM'S HUSBAND TOMAS,
AND HER SISTER JANET.
I APOLOGIZE FOR THE -- UNUSUAL
ORDER OF THE ARGUMENTS HERE.
THE FIRST ISSUE HAS TO DO WITH
THIS JUROR O SCHMIT, IN THE
COURTROOM WHEN THE JUDGE
EXPLAINED TO THE JURY THE
NATURE OF DEATH SENTENCING
PROCEDURE PREWHEN PROSECUTOR
EXPLAINED IT AGAIN TO THE JURY
WAS PRESENT WE THE PROSECUTOR
SAID TO THE JURY, YET AGAIN,
THAT THERE IS NO RULE OF AN
AUTOMATIC DEATH SENTENCE
FIRST-DEGREE MURDER CONVICTION
WAS PRESENT WHEN THE
PROSECUTOR DISCUSSED THAT WITH
VARIOUS JURORS, LEADING UP TO
THE QUESTIONING OF HIM.
THEN WHEN THE PROSECUTOR GOT
TO MR. SCHMIDT WHO PREVIOUSLY
INDICATED IN A QUESTIONNAIRE
THAT HE WAS ABSOLUTELY IN
FAVOR OF THE DEATH PENALTY,
ASKED HIM ABOUT HIS VIEWS, AND
HE SAID, WELL HE WAS 50-50 IN
THAT HE FFRD HE WOULD --
FAVORED WOULD OPPOSE DETH
PENALTY FOR VEHICULAR HOMICIDE
IN WHICH A KID WAS DRIVING AND
TIRE BLEW OUT, AND EP CAUSED
THE DEATH OF SOMEONE, BUT THAT
HE WAS IN FAVOR OF THE DEATH
PENALTY FOR A ROBBERY IN WHICH
A STORE CLERK WAS SHOT.
THE PROSECUTOR, THEN SAID TO
HIM, OKAY, YOU UNDERSTAND THAT!!$$!!!!!!
THATP THE DEATH PENALTY IS
ONLY FOR FIRST-DEGREE MURDER
FELONY MURDER PREMEDITATED
MURDER, YES, OKAY, SO IT IS
NOT FOR EVERY FIRST-DEGREE
MURDER.
>> RIGHT.
>> OKAY, SO YOU THERED HAS TO
BE THIS WEIGHING PROCESS, SO
GIVEN THAT YOU DO STILL
BELIEVEP THAT THERE IS A
CONVICTION FOR FIRST-DEGREE
MURDER FELONY MURDER OR
PREMEDITATED MURDER DO YOU
AUTOMATICALLY WANT THE DEATH
PENALTY AND HE ANSWERED YES.
ED THE EVIDENCE IS THERE, YES
WE SUBMIT TO YOU THAT AFTER
THAT THE PROSECUTOR CONTINUED
TO WORK ON HIM, AND AT THAT
POINT, HE GAVE WHAT ONE MIGHT
SAY US THE RIGHT ANSWER, OR
THE MORE NEUTRAL ANSWER, WHICH
IS THAT HE WOULD WEIGH THE
CIRCUMSTANCES AND WOULD BE
ABLE TO RENDER A DEATH
SENTENCEP.
>> WELL, IN THAT CONTEXT ISN'T
THAT WHAT WE ARE LOOKING FOR,
EVEN IF A JUROR STARTS OUT,
WITH SOME OF NOTION THAT WANTS
-- EXPLAINED TO HIM HOW THIS
PROCESS WORKED IF THAT JUROR
INDICATES THAT THEY CAN PUT
ASIDE THESE NOTIONS, AND CAN
IN FACT FOLLOW THE LAW, AND DO
WHAT THE COURT INSTRUCTS THEM
TO DO, THEN THAT JUROR HAS IN
FACT BEEN REHABILITATED?
.
>> THAT IS CORRECT, AND THAT
IS THE IN ISSUE THE OVER TON
CASE UPON WHICH I RELY, AND
EVERY I POP WHICH ALSO MY
OPPONENT RELIES.
BUT WHAT WE HAVE HERE WE DON'T
HAVE SIMPLY, AN INITIAL
STATEMENT OF PREFERENCE FOR
THE DEATH SENTENCE.
P FIRST OF COURSE IS AN
ABSOLUTE PREFERENCE FOR THE
DEATH SENTENCED TO START BUT
HE HEARD ALL OF THESE THINGS,
WHICH -- WHAT YOU ARE TALKING
ABOUT ALL THESE INDICATIONAL
PROCESSES HE HEARD THE JUDGE
DISCUSS IT WITH THE JURY HEARD
THE PROSECUTOR DISCUSS IT WITH
THE JURY HE HEARD THE
PROSECUTOR AGAIN SAY, THERE IS
NO AUTOMATIC DEATH SENTENCED
FOR FIRST-DEGREE MURDER, HE
HEARD THE PROSECUTOR
DISCUSSING THIS WITH ALL THE
OTHER JURORS.
HE HEARD THE PROSECUTOR -- HE
HEARD ALL OF THIS, HE WAS
EDUCATED, THEN THE PROSECUTOR
ASKED WHAT I AM HIS VIEW WAS
THAT WAS THE 50-50 THING WITH
THE TIRE BEING BLOWN OUT.
THEN THE PROSECUTOR WENT
THROUGH IT WITH HIM YET AGAIN
THIS IS LIKE, AT LEAST THE
FOURTH TIME, THAT THIS IS
ADDRESSED TO HIM, NOT COUNTING
HIS BEING THERE WHILE THE
OTHER JURORS DOWN THE LINE ARE
HOWEVER IT WAS, WERE BEING
HAVING THIS DISCUSSED WITH
THEM.
AT THAT POINT, HE WAS AS
EDUCATED AS HE WAS GOING TO
GET, I SUBMIT, BECAUSE THE
PROSECUTOR THEN SAID TO HIM,
OKAY, YOU UNDERSTAND THAT THIS
IS NOT FOR EVERY FIRST-DEGREE
MURDER.
>> YES.
YOU UNDERIT HAS TO BE
PREMEDITATED FELONY
ADMINISTERED RIGHT.
>> CASES SEEM TO SAY IF THE
JUROR EVENTUALLY AGREES ON
WHAT THE LAW IS, BECAUSE
SOMETIMES THEY ARE UNDER A
MISCONCEPTION WHEN THEY COME,
IN ABOUT THE LAW THEY DON'T
KNOW WHAT THE LAW IS, ONCE
THEY ARE TOLD WHAT THE LAW IS,
IF THEY EVENTUALLY AGREE THAT
THEY WILL FOLLOW THE LAW, AND
PUT ASIDE THEIR PERSONAL
BELIEFS!!$$!!!!!!!!!!!!
BELIEFS, THAT THEY ARE
REHABILITATED!!$$!!!!!!!!!!!!!!!!!!!!!!!!
REHABILITATED.
>> I -- RESPECTFULLY DISAGREE
WITH THAT JUSTICE, THAT WAS
DISCUSSED IN THE OVER TON
CASE, WHERE THEY DISCUSSED
PRIOR -- THE COURT DISCUSSED
PRIOR OPINIONS OF THIS COURT
WHICH SAY THAT HOW IS ONE TO
BE ABLE TO DECIDE WHETHER THE
-- THE LATER RESPONSE IS
BETTER AND A GREATER VALUE,
THAN THE EARLIER RESPONSE, IS
-- STILL --
>> YOU CAN NEVER REHABILITATE
A POTENTIAL JUROR?
>> THE SORT OF SITUATION THAT
YOU SEE IN OVERTON WITH THE
SECOND JUROR, THAT IS TRUE.
WHERE THERE IS THERE IS MERELY
AN INITIAL STATEMENT OF BIAS,
AFTER WHICH THE JUROR AGREES
WITH -- OKAY, YES, I
UNDERSTAND NOW I WILL FOLLOW
THE LAW.
BUT MANY THIS IS -- BECAUSE
THERE IS THE EDUCATIONAL
PROCESS.
HOWEVER THE CASES DON'T SAY
THAT JUST SO LONG AS
EVENTUALLY I GET THE PERSON TO
THE RIGHT ANSWER THAT IS --
THAT THAT --
>> THE CASES IN AS A MATTER OF
FACT I THINK THE SUPREME COURT
CAME OUT WITH A KISS ON THIS
VERY ISSUE YESTERDAY -- CASE
ON THIS VERY ISSUE YESTERDAY.
>> -- YOU HAVE ADVANTAGE.
>> EXPLAIN FURTHER -- AND, IT
THE CASES REALLY DO COME DOWN
TO THEP TRIAL JUDGE MAKING A
DETERMINATION AS TO THE
CREDIBILITY OF WHAT THE JUROR
IS SAYING.
ISN'T THAT BASICALLY WHERE IT
IS?
>> WELL, IT EXCEPT THAT THE $$
JUDGE'S DISCRETION IS LIMITED
BY TWO IMPORTANT THINGS, ONE
WHAT IS THIS JUROR SAY AND
SECOND IS VOUR WELL
ESTABLISHED RULE IN FLORIDA
WHICH IS THAT -- THAT THERE IS
A STRONG PREFERENCE IN FAVOR
OF EXCUSING THE JUROR THAT
THERE IS A REASONABLE DOUBT
ABOUT THE $$JUROR'S PARTIALITY,
AGAIN, I KEEP MENTION THE OVER
TON CASE WHAT HAPPENED IN THE
OVER TON CASE WAS -- THAT THE
JUROR THERE WERE TWO JURORS,
JUROR RUSSELL AND JUROR --
JUROR RUSSELL, HAD SAID, WELL,
I THINK THAT THE DEFENDANT
SHOULD TAKE THE STAND, BECAUSE
THAT IS WHAT I WOULD DO, AND I
-- SO GAVE RESPONSES WHICH
WOULD GIVE RISE TO A BELIEF
THAT THE JUROR WAS DISQUAFFED,
THE JUROR WAS -- DISQUALIFIED
THE JUROR WAS QUESTIONED
PROGRESSIVELY EVENTUALLY SAID,
NO, I -- I AGREE THAT I
UNDERSTAND, NOW, THAT THIS
SHOULD NOT WOULD NOT COULD NOT
PLAY A ROLE IN MY
DELIBERATIONS IN THIS CASE.
NEVER THE LEGALS --
NEVERTHELESS THIS COURT FOUND
ERROR IN DENIAL OF THE CAUSE
CHALLENGE TO THAT JURY ON OUR
IT WAS SIMPLY THE RESULT OF
THIS PROCESS, OF LEADING THE
JUROR INTO THE RIGHT ANSWER.
>> DISCREET ISSUE, IN OVER TON
AS TO WHETHER THE JUROR WOULD
FOLLOW THE LAW, AS TO THE
TESTIMONY, CORRECT?
>> UM-HMM.
>> YES --
>> THIS COURT JURISPRUDENCE IS
PRETTY MUCH INSISTENTLY
FOLLOWED WHITHERSTON, CORRECT.
>> IT -- WITH REPUBLICAN TO
THE -- WITH RESPECT TO THE
DEATH SENTENCE, FLORIDA, I'M
NOT SURE I NORTHBOUND WHAT WAY
FOLLOWED -- OBVIOUSLY THE
COURT IS BOUND BY AND FOLZ
WHITHERSPOON!!$$!!!!!!!!!!!!!!!!!!!!!!
WHITHERSPOON.
>> WE HAVE SAID IN ANY OF OUR
CASES THAT THERE IS ANY
GREATER -- RIGHT UNDER THE
STATE CONSTITUTION -- THAN IS
DELINEATED BY THE UNITED
STATES SUPREME COURT.
>> -- I MEAN, BUT -- BOTH THE
STATE CONSTITUTION AND FEDERAL
CONSTITUTION REQUIRE THAT A
JUROR BE IMPARTIAL.
>> WHAT I HAVE PROBLEMS WITH I
THINK!!$$!!!!!!!!
THINK, YOU GOT SEVERAL POINTS
I THINK YOU SAID YOU WERE
GOING TO ARGUE TWO I THINK YOU
HAVE A FEW THAT ARE
INTERESTING EVIDENTIARY ISSUES
MY ISSUE HERE IS THAT IF THIS
JUROR HAD A FAMILY MEMBER WHO
HAD BEEN YOU KNOW -- A VICTIM
OF A CRIME, AND THEN,
EXPRESSED THESE VIEWS, I WOULD
BE LOOKING AT THESE THE
RESPONSES IN A DIFFERENT WAY.
BUT I THINK YOU REALLY WHEN WE
GET TO THE IDEA THAT SOMEONE
IS GIVING THEIR OPINION, I
THINK THAT THE DISCRETION OF
THE JUDGE IS TO THEN IS
FOLLOWS DIFFERENT, AND THAT IS
WHY I SAY THE REHABILITATION
ISSUE IF SOMEBODY, HAD BEEN A
WITNESSES TO A CRIME, AND THEN
THEY GO YEAH "COULD PUT IT
ASIDE WE ARE GOING TO BE
LOOKING THAT THE WITH A LOT
MORE SKEPTICISM THAN IF IT IS
JUST THIS ISSUE OF THAT PEOPLE
ARE NOT INFORMED, UNTIL THEY
ARE YOU KNOW ABOUT THIS HOW
THE DEATH PENALTY IS APPLIED
THIS THIS STATE, SO THAT IS --
DO YOU SEE THAT THERE IS A
DIFFERENCE IN CASES, DEPENDING
ON WHAT THE NATURE IS OF THE
INDIVIDUAL OPINION, AND IF
THERE IS ANY BASIS IN THAT
PERSON'S EXPERIENCE, WHO HAS
TO MAKE THEM -- YOU KNOW, BIAS!!$$!!!!!!
BIASED, BECAUSE OF THEIR
PERSONAL EXPERIENCE, AS A
POSED SOME GENERALRISED VIEWS
ABOUT THE DEATH PENALTY.
>> NO DOUBT THERE IS, I CAN
UNDERSTAND THAT, DISTINCTION
BUT IN THE OVERTONE CASE THAT
WASN'T THE DISTINCTION, THERE
LIKE SAID THERE WERE TWO
JURORS!!$$!!!!!!!!!!
JURORS, AND OVER TON, AND THE
COURT -- APPLIED THE SAME IS A
STANDARD TO BOTH OF THEM, AND
THE SECOND ONE WAS -- WAS THIS
AS JUSTICE WELLS AS I
MENTIONED ONE HAD TO DO WITH $$
JUROR'S VIEWS ON THE DEATH
PENALTY BUT THE FIRST JUROR,
JUROR RUSSELL,AND THE OVER TON
CASE -- HAD A VIEW ABOUT THE
LAW, WHICH WAS SOMEBODY SHOULD
HAVE TO TESTIFY IN HIS OWN
DEFENSE.
AND THE EVEN THOUGH THE JUROR
WAS KAE EDUCATED -- WAS
EDUCATED, THE COURT FOUND THAT
THE MERE FACT THAT THE PERSON
COMES AROUND AND STARTS GIVING
THE RIGHT ANSWERS, ISN'T
DISPOSITIVE, NOW, I AGREE WITH
YOU ABOUT THE -- ABOUT THE
EDUCATIONAL PROCESS, BUT HERE
THE JUROR WAS EDUCATED BEFORE
HE SAID HE AUTOMATICALLY WANT
THE DEATH PENALTY THAT IS A
SIGNIFICANT --
>> WHAT WOULD WE SAY IN
REVERSING THE TRIAL JUDGE?
BECAUSE THE TRIAL JUDGE WAS
THE ONE WHO SAT THROUGH THIS,
AND HEARD THE DEFENDANT, SAW
EVERYTHING THAT WAS GOING ON,
WHAT WOULD WE SAY IN SAYING
THE TRIAL JUDGE ERRED HERE.
>> FIRST THE JUDGE WAS NOT
RELYING ON ANY SORT OF
SUBJECTIVE THINGS HE DIDN'T
SAY ANYTHING ALONG THOSE
LINES.
SECOND, THE JUDGE'S DISCRETION
IS CLEARLY BOUND BY THE RULE
WHICH IS IN FAVOR OF EXCUSING
JURORS!!$$!!!!!!!!!!
JURORS, WHEN THERE IS A
REASONABLE DOUBT, ABOUT THE $$
JUROR'S PARTIALITY, THIRD, THE
JUDGE'S --
>> UNDER THAT STANDARD YOU ARE
SAYING ALTHOUGH WE SAY THE
JUDGE HAS A LOT OF DISCRETION
HE REALLY DOESN'T IT IS A
LIMITED DISCRETION, BECAUSE IT
IS ALWAYS GOING TO BE THE
ISSUE OF WHETHER THERE IS A
REASONABLE DOUBT OR NOT SOUSH
SAYING, DISCARD THAT ISSUE OF
THE $$JUDGE'S DISCRETION AND
COME DOWN TO IS THERE A
REASONABLE DOUBT.
>> NO, I DON'T BELIEVE THAT
THAT IS THE CASE.
THE -- FOR INSTANCE IN THE
SENIOR DISCUSS BIDS JUSTICE
PARENT AYE THE PERSON SIMPLY
HAS INITIAL IMPRESSION QUICKLY
SWEPT AWAY.
>> THAT CASE THERE IS NO
REASONABLE DOUBT.
>> RIGHT THERE IS NO DONEABLE
DOUBT BUT OBVIOUSLY OBVIOUSLY
THE JUDGE I'M SORRY, I'M
INTERRUPTING.
>> SO YOU ARE SAYING FORGET
THE THERE REALIZE SAVENLT
STANDARD OF REVIEW OF ABUSE OF
DISCRETION WE REVIEWED DE NOVO
ISSUE ISSUE WHETHER REASONABLE
DOUBT ABOUT $$JUROR'S IM!!$$!!
IMPARTIALALITY THAT IS WHAT
YOU ARE SAYING, ABUSE OF
DISCRETION!!$$!!!!!!!!!!!!!!!!!!
DISCRETION, A $$JUDGE'S
DISCRETION IS ALWAYS BOUND BY
THE LAW GOVERNING THE ISSUE.
IT HAS BEEN THE LAW OF THIS
STATE FOR DECADES --
>> STASHED OF REVIEW OF ABUSE
OF DISCRETION WOULD SAY IF
REASONABLE MINDS CAN DIFFER,
THEN YOU AFFIRM.
>> UM-HMM.
>> I THINK A WHAT YOU ARE
PROPOSING WE DON'T USE THAT WE
JUST SAY DO WE THINK THIS ISSO
THERE IS A REASONABLE DOUBT,
AND IF WE THINK THERE IS A
REASONABLE DOUBT, THEN WE
REVERSE.
>> NO -- -- THE RULE OF ABUSE
OF DISCRETION ALSO INCLUDES
THE CONCEPT THAT LIKE FACTUAL
SITUATIONS REQUIRE LIKE
RESULTS.
THAT ISESES IN CANON CARRIS
DISCUSSED IN CAN AND CARRIS,
YES THE JUDGE HAS BROAD
DISCRETION!!$$!!!!!!!!!!!!!!!!!!
DISCRETION, AND WE SEE, THAT
IN ALL KINDS OF ISSUES, ABOUT
CAUSE CHALLENGES WHERE THERE
IS -- THERE IS DISCRETION
ABOUT THE -- ABOUT THAT, BUT
HERE WHAT YOU HAVE IS
SOMETHING QUITE DIFFERENT,
HERE YOU HAVE AN ISSUE WHERE I
BELIEVE UNDER THE FACTS, AS A
MATTER OF LAW, THERE IS A
REASONABLE DOUBT ABOUT THE $$
JUROR'S --
>> I THINK THEN THAT IS A
DIFFERENT ANSWER TO JUSTICES
QUESTION.
>> IF THAT IS THE CASE I
APOLOGIZE JUSTICE.
>> IF YOU SAYING THIS
IDENTICAL TO OVER TON, AND
THEREFORE UNDER THAT LAW, THE
JUDGE MUST HAVE GRANTED A
CAUSE CHALLENGE, THEN THAT IS
ANOTHER ISSUE.
>> WELL, ANY ISSUE OF ABUSE OF
DISCRETION IS -- THERE ARE
VERY FEW THINGS WHERE
UNBRIDLED UNREVIEWABLE
DISCRETION BECAUSE THIS COURT
IS REVIEWING IT, AND SINCE
THIS COURT IS REVIEWING IT
THIS COURT HAS TO LOOK AT WHAT
THE RECORD SHOWS ABOUT WHAT --
>> -- YOU YOU HAVE USED HALF
OF YOUR TIME, AND YOU HAVE
GOT, SOME SUBSTANTIAL, AT,
AND I WOULD LIKE YOU TO WHAT
DO YOU THINK IF WE DON'T AGREE
WITH YOU ON THIS, WHAT IS YOUR
STRONGEST POINT FOR --
>> LET ME DISCUSS THIS ISSUE
11.
THIS IS THIS IS -- HE WHAT
HAPPENED HERE, WAS THAT THE
COURT IS PLAYING A TAPE OF THE
DEFENDANT'S INTERROGATION BY
THE POLICE OFFICER, THE SECOND
SUPPLEMENTAL RECORD AT PAGE
50, SHOWS THE PROSECUTOR IS
BEGINNING TO DISCUSS WITH THE
DEFENDANT A CONVERSATION WHICH
THE OFFICER HAD, WITH THE $$
VICTIM'S SISTER JANET ABOUT A
DISCUSSION, THAT SHE HAD HAD
WITH THE VICTIM, WHICH THE
VICTIM ABOUT A CONVERSATION
WAS THE VICTIM HAD HAD WITH
THE DEFENDANT.
THE DEFENDANT AT THAT POINT
OBJECTS THERE IS A DISCUSSION,
THE ARGUMENT IS -- TRIPLE
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY, AND THE AND THERE IS
A MOTION FOR MISTRIAL.
>> -- IS THIS FOR IMPEACHMENT?
I MEAN, IN CONTEXT THIS WAS --
ABOUT THE STATE THAT DEFENDANT
HAD --
>> NO, THIS IS -- THIS IS
BEFORE THIS.
>> THIS IS IN THAT HE STATE
DIRECT CASE, YES, SIR.
>> WHO WAS ON HE ON THE
>> AND POLICE OFFICER THE
DETECTIVE THEY ARE PLAYING A
TAPE.
>> OF THE -- OF THE VOLUNTARY!!$$!!!!!!!!!!!!!!!!
VOLUNTARY --
>> YES.
>> ISSUE OF WHETHER A WAIVER,
BECAUSE --
>> RIGHT.
>> THEY HAD ALREADY -- AGREED
TO THE TAPE.
ADDRESS THE WAIVE ISSUE.
>> OKAY, THE WAIVE ISSUE IS --
WAIVER ISSUE IS DISCUSSED IN
THE JACKSON CASE, WHICH IS --
THE BRETT KILLER CASE HAS TO
DO WITH HOW LONG, OR WHERE IN
THE INTERROGATION, A DEFENDANT
-- AN OBJECTION BECOMES
ULTIMATELY UNTIMELY SO AS TO
AMOUNT TO A WAIVER, HERE THE
DEFENSE WAS MADE THE OBJECTION
WHEN THE OFFICER WAS FIRST
BROACHING THE ISSUE, THEP
OFFICER HAD NOT FULLY SET OUT
WHAT THIS DISCUSSION, THAT YOU
KNOW, TRIPLE HEARSAY
DISCUSSION, SO THAT THE JUDGE
DID I TELL!!$$!!!!!!!!!!!!!!!!!!
DID HAVE AN OPPORTUNITY AND
THAT IS THE CRITICAL ISSUE FOR
WAIVER!!$$!!!!!!!!!!
WAIVER, THE JUDGE DID HAVE AN
OPPORTUNITY TO TAKE CORRECTIVE
ACTION!!$$!!!!!!!!!!
ACTION.
>> -- ALREADY HAVE THE
TRANSCRIPT.
>> THE JURY HAD THE
TRANSCRIPTS PRESUMABLY THEY
ARE READING ALONG WITH THIS,
AND IN ANY EVENT THE JUDGE CAN
TELL THE JURY TO DISREGARD
THAT, HE LATER REDACTED OTHER
PARTS OF THE TRANSCRIPT, SO IT
IS CUT OFF RIGHT AT THAT POINT
SO THAT THE JUDGE COULD HAVE
TAKENP ACTS IN FACT THE JUDGE
WAS CONSIDERING99TAKING ACTION,
INCLUDING TELLING THE JURY,
STIPULATION THAT THIS WAS NOT
BEING ADMITTED FOR THE TRUTH
OF THE MATTER ASSERTED.
BUT THE STATE WAS SAYING WELL
NO, ACTUALLY, WE WANT TO SHOW
THAT THIS CONVERSATION
OCCURRED!!$$!!!!!!!!!!!!!!
OCCURRED.
THIS -- THIS HEARSAY.
>> WAS THIS BEFORE OR -- WE
ARE AT THE POINT WHERE WE ARE
TALKING ABOUT WHAT WENT ON
BETWEEN THE OFFICER AND THE
DEFENDANT; CORRECT?
>> UM-HMM.
>> WAS THIS BEFORE OR AFTER
THE PART WHERE THE DEFENDANT
HAD BEEN ASKED ABOUT THE
JEWELRY AND HE SAYS HE NEVER
NOTICES THAT TIEND!!$$!!!!!!!!KIND OF THING
THIS WAS AFTER THAT POINT;
CORRECT?
>> THIS WAS RIGHT AT THAT
POINT.
>> OKAY.
>> THIS IS AT PAGE 50 OF THE
SECOND SUPPLEMENTAL RECORD, IT
SHOWS IT SHOWS EXACTLY WHERE
-- WHERE IN THE DISCUSSION,
THAT OCCURRED.
AND IT WAS ONLY AFTER THE
DISCUSSION AT THE BEENCH THAT
THE JUDGE ALLOWED THE TAPE TO
PROCEED.
FOR THE OFFICER TO DEVELOP IT.
OF COURSE THE WORST THING IS
THEN SUBSEQUENTLY, THE JAIJ
ALLOWED THE HUSBAND AND THE
SISTER TO COME IN TO TESTIFY
ABOUT THIS HEARSAY ALSO.
THE JUDGE HAD INITIALLY
UNDERSTOOD THIS JUST SOMETHING
THE STATE WAS PUTTING IN FRONT
OF THE JURY, TO SHOW THE
CONTEXT OF THE INTERROGATION
BUT THE STATE WAS SAYING, NO,
THAT THIS -- THIS ALTHOUGH
THEY WERE CALLING IT
IMPEACHMENT --
>> WHAT DID THE DEFENSE DO
WHEN ALL OF THIS INFORMATION
WAS COMING IN WHEN THE --
HUSBAND,AND THE SISTER WP GOT
ON THE STAND WAS DISCUSSING
THESE HEARSAY STATEMENTS ABOUT
HIM NOTICING HER JEWELRY, DID
THE DEFENSE MAKE AN OBJECTION
TO THAT.
>> YES, YES YOUR HONOR, THERE
WAS AN EXTENSIVE DISCUSSION
THE DEFENSE RAISED HEARSAY
OBJECT!!$$!!!!!!!!!!
OBJECTION.
>> THE TRIAL JUDGE SAID WELL
IT IS ADMISSIBLE FOR
IMPEACHMENT PURPOSES AND SO I
WILL GIVE A LIMITING INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION AND THE DEFENSE
THEN AT THAT POINT SAID NO,
JUDGE, WE DON'T REALLY NEED
YOU TO GIVE A LIMITING
INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION, THAT THE DEFENSE
-- IS THAT AN ABANDONMENT.
>> NOT ABANDONMENT, BECAUSE
WHAT THE JUDGE WAS GOING TO
TELL THE JURY, THE JUDGE --
LIMITING INSTRUCTION WOULD
HAVE BEEN I THINK SIX DAYS
AFTER THE JURY FIRST HEARD
THIS.
SO THAT IT WOULD REMIND THE
JURY THAT THERE WAS THIS
PREVIOUS TESTIMONY, NUMBER
TWO, MOST IMPORTANTLY, IT
WOULD AND I CITED A CASE ON
THAT ISSUE, SHABAZZ, MORE
IMPORTANT!!$$!!!!!!!!!!!!!!!!
IMPORTANTLY, THE -- THE $$
JUDGE'S INSTRUCTION WOULD
AUTHORIZE THE JURY TO CONSIDER
THIS OUT OF COURT STATEMENT,
FOR THE TRUTH OF THE MATTER
ASSERT!!$$!!!!!!!!!!
ASSERTED.
WHICH WAS THAT THIS
CONVERSATION DID OCCUR, THE
ONLY EVIDENCE THAT THIS
CONVERSATION OCCURRED WAS
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY, THE STATE RELIED UPON
THE SUBCONSTANTIVE FACT THIS
CONVERSATION OCCURRED IN FINAL
ARGUMENT TO THE JURY IN THE
LIMITING INSTRUCTION --
>> HOW DID THE STATE USE THAT
IN FINAL ARGUMENT?
IN FINAL ARGUMENT?
>> UM-HMM.
>> THE STATE SHOWED THE CHFRGS
OCCURRED!!$$!!!!!!!!!!!!!!
OCCURRED, IT IS AT PAGE, I
BELIEVE -- MANY 3393, 3394,
AND AGAIN 334 -- 33.
>> AT THAT POINT AT ANY OF
THOSE POINTS.
>> IN THE FINAL ARGUMENT.
>> OBJECTION.
>> NO, BECAUSE THE JUDGE HAD
ADMITTED THE EVIDENCE.
WHAT WOULD THE OBJECTION BE?
THE OBJECTION WOULD BE THAT IT
WAS FOR IMPEACHMENT ONLY.
>> WELL NO, BECAUSE THE -- THE
STATE WAS ARGUING THAT IT
IMPEACHED THE DEFENDANT
BECAUSE IT WAS TRUE, SEE I
HAVE THE THEY WERE CONFUSION
IT FOR IMPEACHMENT IN THAT
THEY WERE USING TOILT
CHALLENGE WHAT THE DEFENDANT
HAD SAID ON THE TAPE.
BUT, THEY WERE IMPEEFK HIM
WITH INCOMPETENT EVIDENCE THAT
IS THE ISSUE, TELLING THE JURY
THAT THIS IS ADMISSIBLE, AS
HYMN PIECH MEANT DOESN'T ALTER
THE FACT THAT THE STATE WAS
TELLING THE JURY THAT IT WAS
TRUE, AND THIS WHAT THE STATE
TOLD THE JUDGE.
>> I GUESS --
>> BECAUSE IT WAS TRUE, THAT.
>> --
>> SOMETHING IF A DEFENDANT
SAYS, X, CAN YOU INTRODUCE
IMPEACHMENT EVIDENCE THAT SAYS
NOT X?
.
>> IF IT IS COMPETENT EVIDENCE
THAT IS THE PROBLEM ISN'T IT?
>> THERE IS SEVERAL EVIDENCE
ADMISSIBLE FOR IMPEACHMENT NOT
ADMISSIBLE FOR SUBCONSTANTIVE
PURPOSES.
>> BUT -- BUT, BUT -- THIS CAN
IMPEACH HIM ONLY IF IT IS
TRUE.
THAT IS THE PROBLEM.
>> LET ME --
>> GO ON.
>> BUT UNDER YOUR GO AHEAD.
>> I'M --
>> SEEMS LIKE UNDER YOUR
THEORY COULD YOU NEVER USE
TESTIMONY FOR IMPEACHMENT THAT
IS HEARSAY, AND THAT'S NOT
WHAT THE RULE PROVIDES, AND
HEARSAY IS IF IT IS INTRODUCED
FOR THE TRUTH OF THE MATTER,
BUT IF IT IS USED FOR
IMPEACHMENT!!$$!!!!!!!!!!!!!!!!!!!!
IMPEACHMENT, THEN IT DOESN'T
MATTER IF IT IS HEARSAY.
>> BUT IT WAS USED FOR THE
TRUTH OF THE MATTER.
I MEAN, IT BECAUSE COULD IT
IMPEACH ONLY IF IT WAS TRUE
THAT THIS CONVERSATION HAD
OCCURRED!!$$!!!!!!!!!!!!!!
OCCURRED.
THAT IS -- THAT IS -- THAT IS
-- THAT IS THE ONLY THING THAT
IT IMPEACHED THE $$DEFENDANT'S
STATEMENT THAT THIS
CONVERSATION HADN'T OCCURRED
BACK BEFORE THE MURDER.
AND THIS -- THIS HEARSAY COULD
ONLY IMPEACH THAT STATEMENT IF
IT WAS AD MYTHED TO ADMITTED
TO PROOF THAT THAT
CONVERSATION OCCURRED.
>> LET ME SWITCH TO ANOTHER
SUBJECT SINCE YOUR TIME IS
FEETING IS IT'S THE DEFENSE'
POSITION THAT THE $$STATE'S CASE
WAS TOTALLY CIRCUMSTANTIAL.
>> YES, SIR.
>> WHAT IS THE REASONABLE
HYPOTHESIS OF INNOCENCE THAT
YOU ARE -- PUTTING FORTH.
>> AS IN THE BALLARD CASE THE
DEFENSE HYPOTHESIS IS THAT THE
DEFENDANT WAS NOT THE PERSON
WHO COMMITTED THE CRIME, THAT
IT MAY HAVE BEEN THE --
SULLIVAN SMITH, BEN THOMAS
DEBORAH THOMAS OR SOME OTHER
PERSON ALSO THIS EVIDENTIARY
ISSUE CONCERNING THIS HAND
UNIFY MAN IN THE AREA THAT THE
HOWEVER THE DEFENDANT DID NOT
COMMIT THE CRIME -- THE $$
STATE'S CASE, DEPENALIZEDED
ENTIRELY UPON --
>> WHAT IS YOUR -- WHAT IS --
LET ME ASK YOU, A DIFFICULT
QUESTION WHAT DO YOU SEE AS
THE $$STATE'S STRONGEST EVIDENCE
AGAINST YOUR CLIENT?
>> IT IS VERY HARD TO SAY,
JUSTICE WELLS AND I'M NOT I
APOLOGIZE THAT I SEEM EVASIVE
BECAUSE WHAT THEY HAVE IS THEY
HAVE A LOT OF LITTLE PIECES OF
EVIDENCE.
>> THEY GOT THE TIMING OF THE
CELL PHONE CALL.
>> RIGHT.
>> THEY HAVE TIMING OF THE
BANK DEPOSIT.
>> DONTS HAVE TIME OF THE
DEATH THAT IS PART OF THEIR
PROBLEM THEY DON'T HAVE THE --
THEY TRIED TO FIT THEIR CASE
INTO --
>> GOT A PERSON CALLING AT
9:15.
>> UM-HMM.
NINE -- 8:47 OR SOMETHING.
>> RIGHT THAT WAS WHEN SHE
HUNG UP.
>> RIGHT.
>> AS THE COAST'S POSSESSION
OF THE RING.
>> -- $$DEFENDANT'S POSSESSION
OF THE RING.
>> IT WAS A RING THAT WAS LIKE
HER RING, BUT THE TWO PEOPLE
AT THE OFFICE WHO SEE HIM WITH
THIS RING SAY THAT THIS RING
IN THE LINEUP --
>> ARE YOU SAYING THAT A
REASONABLE JURY COULDN'T HAVE
DRAWN A REASONABLE CONCLUSION
THAT THIS WAS THE RING THAT
BELONGED TO THE VICTIM?
>> WELL, THAT THEY WOULD THEY
WOULD HAVE TO THEY WOULD HAVE
TO HAVE TO HYPOTHESIZE THAT,
BECAUSE THE -- THE TELL YOU
RING DISAPPEARED, THE RING
DEGAVE THE GIRLFRIEND,
DISAPPEARED.
SHE SAID.
>> PRETTY IN ITSELF, I HATE TO
TO ME IS ONE MORE FACT THAT IS
IMPLICATES!!$$!!!!!!!!!!!!!!!!!!
IMPLICATES, YOUR CLIENT THAT
AFTER HE KNOWS THAT THE RING
IS BEING QUESTIONED, HE GETS
RID OF THE RING.
SO --
>> WELL THAT IS CERTAINLY A
SUSPICIOUS CIRCUMSTANCE, AS
THE CASE LAW SAYS.
>> ISN'T THERE SOME
IDENTIFICATION ALSO WITH SORT
OF A YOU LINEUP WITH THE RING
THING SITUATION.
>> THEY SAY THAT THEY SAY THAT
IT LOOKS LIKE IT, RIGHT, BUT
THE LINE -- THE LINEUP, WAS
APPARENTLY MADE CONTAINED A
RING WHICH WAS AN EXACT
REPLICA OF THE $$VICTIM'S RING,
AND IT WAS A DISPUTE AS TO HOW
COMMON THIS RING WAS, AND THE
DEFENSE WAS NOT ALLOWED TO
PRESENT EVIDENCE OF
CROSS-EXAMINATION OF THE
SISTER ABOUT THAT, THAT IS
ISSUE NUMBER SIX.
>> YOU ARE -- BECAUSE OF THE
TIME, HERE --
>> RIGHT.
>> IMPOSSIBLE
>> VIRTUALLY ALL OF YOUR
REBUTTAL TIME.
>> OKAY.
>> TOO, AFTER THE THING I
REALIZE YOU HAVE WRITTEN A
VERY DETAILED BRIEF.
>> OKAY, WELL ALL RIGHT, WITH
THAT I WILL RECERTIFY MIEFSH
REMAINING TIME FOR REBUTTAL,
THANK YOU -- RESERVE REMAINING
TIME FOR REBUTTAL, THANK YOU.,,
.
>> WHY DON'T WE JUST START
WITH THE SUFFICIENCY OF THE
EVIDENCE WHICH, YOUR OPPONENT
REALLY DIDN'T GET AN
OPPORTUNITY TO FINISH, WITH,
BECAUSE IT DOES SEEM TO ME,
THAT IN THIS CASE, THAT THERE
IS -- SOME REALLY PRETTY THEN
YOU THESES -- OF THIN PIECES
OF EVIDENCE STACKING
INFERENCES ON INFERENCES HERE
SO I WANT YOU TO GIVE ME THE
YOUR THE $$STATE'S BEST CASE,
FOR WHY THERE IS SUFFICIENT
EVIDENCE TO CONVICT THIS
DEFENDANT.
>> WOULD YOU ANNOUNCE YOUR
APPEARANCE.
>> GOOD MORE THAN YOUR HONOR
MAY IT PLEASE THE COURTLESSLY
CAMPBELL THE ATTORNEY
GENERAL'S OFFICE ON BEHALF OF
THE STATE OF FLORIDA, WITH DO
YOU RESPECT YOUR HONOR I DON'T
BELIEVE THE STATE STACKING
INFERENCES UPON INTAKEN VERIES!!$$!!!!!!!!!!
VERIESES WE HAVE ONE VERY LONG
CHAIN, OF CIRCUMSTANCES, THAT
WHEN YOU LOOK AT THEM
TOGETHER, THEY ARE A VERY,
VERY SOLID CASE AGAINST THIS
DEFENDANT.
TO BEGIN WITH WE HAVE THE
DEFENDANT IN THE AREA, AT THE
TIME THAT THE STATE PRESENTS,
IS THE TIME OF THE $$VICTIM'S.
>> HOW BIG AREA ARE WE TALKING
ABOUT?
>> COULD IT BE, I THINK IT IS
ABOUT 10, 10 TO 16 SQUARE
MILES!!$$!!!!!!!!
MILES, AS FAR AS COVERAGE OF
THE AREA, HOWEVER, WE HAVE
TESTIMONY FROM THE OFFICERS
THAT IT IS POSSIBLE TO GET
FROM ONE LOCATION, TO THE
HOUSE, WITHIN THE TIME FRAME
THAT WE HAVE, THE $$DEFENDANT'S
PHONE CALL AT 8:25 PUTS HIM
NEAR I49 --O -- I-95 NECKS
FOEP CALL 91212 PUTS HIM
WITHIN THE AREA OF VERY IM'S
HOME.
>> DO YOU THINK THAT IS
STRONGEST CIRCUMSTANCE.
>> IT IS OUR YEAST
CIRCUMSTANCE.
>> THE ONLY REASON I ASK WHAT
IS EERIE ABOUT THIS CASE, IS
THAT -- THE ALTHOUGHIVE,
PERSON, WHO MAY BELESS LIKELY,
IS ALSO IN THE AREA, IS ON --
DRIVE OR WHATEVER RIGHT -- AT
THE SAME TIME.
HE IS YOUR HONOR ALSO HAS
RECEIPTS OTHER FAR, THAT SHOW
HE IS -- FACTORS SHOW WITH
OTHER PEOPLE IN OTHER
LOCATIONS WHEREAS DEFENDANT
DID NOT HAVE THAT WHAT IS
ABORTSOME I WISH YOU WOULD
SPEAK TO IT IS -- BOTHERSOME I
WISH YOU WOULD SPEAK TO IT
THAT THERE IS AN ENORMOUS
AMOUNT OF EVIDENCE ABOUT THE
AMOUNT OF BLOOD THAT WOULD
HAVE BEEN AT THE SCENE.
AND, YET, WE DON'T HAVE ANY
PHYSICAL EVIDENCE THAT TIES
THIS DEFENDANT OR THE $$
DEFENDANT'S CLOTHES, OR THE $$
DEFENDANT'S TRUCK, TO ANY OF
THAT BLOOD OR ANY FINGERPRINT
OR ANYTHING THAT WE CAN SAY
OBJECTIVELY THAT THAT IS THIS
IS THE FELLOW WHO DID IT.
>> EVEN THOUGH THERE ISN'T ANY
FORENSIC EVIDENCE YOUR HONOR
FORENSIC EVIDENCE IN THE FORM
OF SOME SORT OF DIRECT
EVIDENCE IS -- NOT MORE
POWERFUL!!$$!!!!!!!!!!!!!!
POWERFUL, AND THE ALMOST A --
LACK NOT LESS POWERFUL THAN
CIRCUMSTANTIAL EVIDENCE WE
HAVE THE $$DEFENDANT'S
GIRLFRIEND TESTIFYING THAT HE
WAS WASHING BLOOD OFF HIS
BODY, EXCUSE ME, SOMETIME
AROUND WHAT SOMETIME BEFORE HE
GOT TO WORK, WE ALSO HAVE HIMP
DISCARDING CLOTHING, WE HAVE
HIS STATEMENT TO DEBORA
THOMAS, THAT IS HIS GIRLFRIEND
AT THE TIME.
>> TAUKSDZ ABOUT THAT, IS --
TALKING ABOUT THAT, IS HIS
REASON FOR THE BLOOD WAS HE
HAD GONE TO WEST PB TO COLLECT
A -- HAD TO ROUGH SOMEBODY UP.
>> YES YOUR HONOR.
>> WAS THAT THE SAME DID HE
SAY THAT TO ANYBODY ELSE THAT
HE HAD GONE TO WEST PALM BEACH
TO COLLECT A DEBT?
>> NOT TO MY RECOLLECTION, IN
FACT WHEN HE TESTIFIED, HE
DISAVOWED!!$$!!!!!!!!!!!!!!!!
DISAVOWED, THAT HE SAID HE WAS
IN AND AROUND TOWN,PP PICKING
UP BOXES, FOR THE SUPPOSED
MOVE MAKING A DEPOSIT.
>> CHECKING WHETHER PLACES
NEED BROD CHURS.
>> THAT IS CORRECT HIS
TESTIMONY AT TRIAL HIS
COMMENTS TO THE POLICE WERE, I
WAS HOME THE WHOLE TIME.
>> DID THIS PERSON THAT HE HAD
BLOOD, AND THAT HE THAT THAT
WAS THE EXPLANATION, THAT THAT
WAS HIS GIRLFRIEND DID THEY
END UP WITH A STRAINED
RELATIONSHIP!!$$!!!!!!!!!!!!!!!!!!!!!!
RELATIONSHIP?
HOW DID THAT WORK?
>> YES, AFTER HE I SUPPOSE
AFTER HE TOOK THE RING BACK
BUT BEFORE THAT.
>> WHERE DID SHE END UP?
>> THERE ARE SEVERAL DEN --
DEBORAHS IN THIS CASE DEBORAH
THOMAS WAS DATING THE
DEFENDANT, IN THIS CASE, AND
AT SOME POINT, SHE THEN
STARTED CHEATING ON HIM WITH
BEN THOMAS.
>> THAT IS SUMMER WERE
CHEATING?
SUMMER.
>> RIGHT DEBORAH.
>> THEN THOMAS -- WHERE THE
JEWELRY WAS FOUND --
>> THAT IS CORRECT, HOWEVER,
THE DEFENDANT WAS ALSO THAT
THE LOCATION, BECAUSE HE MET
WITH BEN THOMAS' THEN WIFE,
DEBORA PELTIER HAD BEEN TO THE
SHED HELPED HER --
>> PRIOR THE MURDER WASN'T IT
THIS OCCURRED IN AUGUST, AND
THE MURDER HERE TOOK PLACE IN
SEPTEMBER, AND SO IS THERE ANY
EVIDENCE THAT LINKS HIM TO THE
SHED AFTER THE AUGUST VISIT TO
THAT HOUSE?
>> THAT THE STATE PRESENTED
THAT HE ACTUALLY WENT THERE,
NO.
BUT THE IMPLICATION IS THAT HE
DID GO THERE HE KNEW ABOUT THE
LOCATION, HE KNEW ABOUT THE
SHED, AND HE ALSO WAS SAID TO
HAVE HAD IN HIS POSSESSION, A
GREY FLANNEL COLOGNE BAG IN
THIS GRAY --
>> -- DEBORAH THOMAS WHO IS
NOW MARRIED TO BEN THOMAS.
>> YES YOUR HONOR.
>> JUST -- I MEAN, DEBORAH P$$!!
PELTIER ACTUALLY US THE ONE
THAT VERIFIED THAT IT WAS BEN
THOMAS THAT ALSO HAD THIS GREY!!$$!!!!!!
GREY --
>> NO YOUR HONOR.
>> SHE DIDN'T SAY WHEN SHE SAW
DISCOVERED IT WAS EERIE,
BECAUSE SHE HAD GOTTEN,
PURCHASED COLOGNE FOR BEN
THOMAS.
>> NO, THE STATEMENT, THAT
AWAY, HAVE SHE IS TALKING
ABOUT ISN'T IT EERIE THAT HE
HAS A PURCHASE FROM --
GEOFFREY BEENE, HOWEVER, WE DO
NOT HAVE A RECEIPT FROM
GEOFFREY BEENE, WE HAVE BEN
THOMAS' STATEMENT THAT HE
PURCHASED TWO PAIRS OF KHAKI
SHORTS AND WE HAVE THE CAPITAL
ONE STATEMENT, SAYING THAT
THERE WAS A GEOFFREY BEENE
PURCHASE BUT WE DON'T HAVE.
>> WHAT DIDN'T SHE WHEN SHE
SAW DISCOVERED -- DIDN'T.
>> MADE A CONNECTION.
>> WHAT DID SHE SAY.
>> SHE THOUGHT IT WAS
STRAINING THAT THERE WAS THIS
THAT -- STRANGE WHAT SHE FOUND
DISCOVERED!!$$!!!!!!!!!!!!!!!!!!
DISCOVERED, WAS THE STATEMENT,
THE CAPITAL ONE STATEMENT, AND
WHAT SHE WAS -- WHAT SHE
THOUGHT WAS EERIE WAS THAT
THERE WAS THIS COLOGNE BAG AND
A CAPITAL ONE STATEMENT.
>> THAT.
>> SHOWING GEOFFREY BEENE
PURCHASE NOT A GEOFFREY BEENE
PURCHASE OF COLOGN.
>> ALL EVIDENCE SEEMS WEAKEST
THAT SOMEBODY WHO WANTED THAT
IS LOTS OF JEWELRY IN THERE --
THAT WOULD PUT THE JEWELRY, IN
A SHED, THAT IS NOT IN HIS
HOUSE, I DON'T SEE HOW THAT
LINKS IN I DON'T KNOW IF YOU
ARE USING THAT EVIDENCE TO
LOOIFRNG THIS -- LINK THIS
DEFENDANT WITH A CRIME OF
ANYTHING -- IF ANYTHING WOULD
LINK BEN THOMAS WITH THE CRIME
SO ARE YOU RELYING ON EVIDENCE
TO LINK THE DEFENDANT WITH THE
CRIMING!!$$!!!!!!!!!!!!
CRIMING.
>> IT IS MERELY ANOTHER STEP
IN -- THE CHAIN THAT WE HAVE,
OF EVIDENCE.
AS THIS COURT HAS ALREADY
POINTED OUT, PROBABLY ME MOST
CRITICAL PIECE OF EVIDENCE IS
THE RING ITSELF.
AND THE RING WAS IDENTIFIED
NOT ONLY BY.
>> HE REPLICA OF THE RING.
>> REPLICA OF THE RING YES
YOUR HONOR, THE RING WAS
IDENTIFIED BY DEBORAH THOMAS
ALSO BY HER GIRLFRIEND, AND
THE TWO OFFICERS.
>> ON THE OTHER HAND, I'M
TRYING TO SEE THIS CASE FROM
YOU KNOW, WHEN YOU HAVE SUCH A
CIRCUMSTANTIAL EVIDENCE CASE,
DON'T YOU HAVE TO LOOK APT
THIS CASE NOT ONLY WITH IN THE
LIGHT MOST FAVORABLE TO THE
STATE, BUT YOU ALSO HAVE TO
LOOK AT IT AS TO WHETHER OR
NOT THAT CIRCUMSTANTIAL
EVIDENCE ALSO NEGATES ANY
REASONABLE HYPOTHESIS OF -- SO
WHEN YOU LOOK AT THIS, YOU
HAVE DEBORAH THOMAS AND HER
FRIEND SAYING YES, THIS
REPLICA IS THE RING SHE HAD.
ON THE OTHER HAND YOU HAVE THE
DEFENDANT THE PEOPLE THAT THE
DEFENDANT SHOWED THIS RING TO,
NOT BEING ABLE TO IDENTIFY
THIS REPLICA AS THE RING THAT
-- THAT THE DEFENDANT SHOWED
THEM.
>> THE CHALLENGE ON THAT, WAS
THAT ONE WAS DIRTIER THAN THE
OTHER SO THEY ARE LOOKING AT
THE CLONELINESS OF THE RING,
AND THAT WAS ONE OF THE
REASONS THEY PICKED A
DIFFERENT RING, HOWEVER, WE DO
HAVE TWO POLICE OFFICERS, IN
-- INDEPENDENT PARTIES, WHO
ARE PICKING OUT, RING NUMBER
THREE.
WHICH IS.
>> AS WHAT.
>> AS THE RING THAT THEY SAW
ON DEBORAH THOMAS' HANDS WHEN
THEY MET HER A FEW DAYS AFTER
THE MURDER.
SO --
>> SOMETHING ABOUT THIS,
16-SQUARE MILE AREA, THAT THE
THING THE NEXTEL EMPLOYEE
TESTIFIED ABOUT DIDN'T HE ALSO
TESTIFY THAT 12 SQUARE MYSELF
OF THOSE WAS OCEAN.
>> RIGHT THAT IS CORRECT YOUR
HONOR.
>> REASONABLY REALLY THERE WAS
ONLY A FOUR-SQUARE MILE AREA
WHERE HE COULD HAVE BEEN?
>> WHERE HE COULD HAVE BEEN
DRIVING, YES.
IN ADDITION TO THAT WE HAVE
THE DEFENDANT GETTING SO WE
HAVE THE DEFENDANT WITH THE
JEWELRY!!$$!!!!!!!!!!!!
JEWELRY, WE HAVE THE DEFENDANT
SHORTLY AFTER THE POLICE --.
>> THE DEFENDANT WITH THE THE
RING, AND -- SUPPOSEDLY ALL
RIGHT -- A RING, AND BRACELET,
AND SHORTLY AFTER GIVING IT TO
THE GIRLFRIEND AND THE
GIRLFRIEND SHOWING IT TO A
FRIEND.
>> A BRACELET ALSO?
>> NO, BUT HE SAID HE HAD --
HE HAD THIS BRACELET HE AND HE
WAS GIVING IT TO HER IT WAS A
DIAMOND AND EMERALD TENNIS
BRACE!!$$!!!!!!!!
BRACELET.
>> I'M GOING TO BECAUSE YOU
ARE JUST MENTIONING THIS RHINE
WHICH I DO THINK IS VERY
SIGNIFICANT I WOULD LIKE YOU
TO JUST BRIEFLY ADDRESS WITH
RELATIONSHIP TO THE RING, THE
CROSS-EXAMINATION OF THE
DEFENDANT OF MY WHERE THE
STATEMENT IS MADE BY THE
PROSECUTOR!!$$!!!!!!!!!!!!!!!!!!
PROSECUTOR, THAT THIS WAS
BLOOD ON THIS RING, AS A
QUESTION, AND THEN USE THAT IN
FINAL ARGUMENT.
THERE IS NO EVIDENCE IN THE
RECORD THAT THE DIRTY RING
THAT WAS SHOWN NOT ONE WITNESS
TESTIFIED THAT IT WAS -- WAS
ASKED THE QUESTION, WAS THAT
BLOOD.
I'M CONCERNED THAT THAT
QUESTION AND THE USE OF IT IN
CLOSING WAS ERROR, AND IN A
CASE WHERE THE CIRCUMSTANTIAL
EVIDENCE IS NOT THE STRONGEST
CASE THAT I'VE SEEN, I -- I
WOULD LIKE YOU TO ADDRESS IT
IF IT WAS ERROR, AND HOW IT
COULD BE HARMLESS.
>> I DON'T BELIEVE IT IS ERROR
YOUR HONOR BECAUSE IF YOU TAKE
A LOOK AT THE TESTIMONY OF THE
MEDICAL EXAMINER, THE MEDICAL
EXAMINER SAID WE HAVE THE
VICTIM BEING ATTACKED, AND WE
KNOW THAT SHE HAS JEWELRY ON
HER HANDS, RINGS ON HER HANDS
AS BEING ATTACKED, SHE ALSO
HAS CUTS ON HER HAND THE
DEFENSIVE WOUNDS ON HER HAND
THERE IS BLOOD, ON HER HANDS,
WHILE SHE IS WEARING THESE
RINGS!!$$!!!!!!!!
RINGS, WE ALSO HAVE PICTURES
FROM THE CRIME SCENE, THAT
SHOW POOLS OF DARK FLUID, ON
THE -- ON THE GROUND.
AND, THEREFORE, IT IS A
REASONABLE QUESTION TO ASK THE
DEFENDANT WHO HAS ATTACK THIS
VICTIM CUT HER SEVLY WHEN OR
NOT THERE WAS BLOOD ON THE
RING.
WE HOE.
>> DIDN'T YOU ALSO, SEE
PROBLEM IS, IS THAT THE
WITNESSES TO ALLEGEDLY SAW
THIS RING SAYS THAT THIS WAS A
-- A RING THAT LOOKED LIKE IT
WAS OLD, AND YOU KNOW, AND
THEY DESCRIBED IT MORE IN
TERMS OF THE DARKNESS ON THE
RING, WAS REALLY AGE, AND SO,
FOR THE STATE TO TAKE THE LEAP
BEYOND THAT, THAT THE DARKNESS
ON THE RING WAS BLOOD JUST
REALLY -- I -- I DON'T FIND I
WANT AS A LEAP.
>> I DON'T FIND IT A LEAP YOUR
HONOR AS I SAY YOU HAVE
TESTIMONY FROM A MEDICAL
EXAMINER THE $$VICTIM'S HANDS
WERE CUT WHILE SHE IS WEARING
RINGS!!$$!!!!!!!!
RINGS.
>> THE QUESTION WAS ASKED THE
BLACK THE BLOOD THAT YOU
DIDN'T EVEN HE BOTHER WIPING
OFF THAT RING BEFORE YOU
WANTED TO SHOW IT TO THESE
PEOPLE, WITHOUT ASKING THESE
PEOPLE, IF THE DARK -- WAS
BLOOD OR COULD HAVE BEEN
BLOOD, THERE IS NO BASIS IN
THE RECORD TO THAT IS AN
INFLAMMATORY ARGUMENTATIVE
QUESTION.
.
>> AS I SAY, AGAIN POINT TO
THE MEDICAL EXAMINERS
TESTIMONY AS FAR AS A VALID
BASIS FOR ASKING THE QUESTION.
>> BUT --
>> COULD HAVE.
>> -- FULL CIRCLE AROUND TO
WHERE I STARTED.
MY CONCERN ABOUT THE FACT THAT
AS I YOU UNDERSTAND, THE $$
STATE'S -- AND WHAT THE STATE
THEORY, IS, IS THAT THIS MAN
CAME TO THIS HOUSE IN HIS
TRUCK, AND THAT HE MURDERED
THIS WOMAN, THAT SHE WAS VERY
BLOODY, THAT SHEP THAT HE TOOK
HER BLOODY RING, THAT HE ENDED
UP WITH BLOOD ON HIS ARM, AS
TESTIFIED TO, BY DEBORAH
THOMAS, AND YET THERE IS NOT
ONE TRACE OF BLOOD IN THAT
TRUCK, WAS THERE ANY
EXPLANATION BY ANYBODY FOR
THAT?
>> WELL, YOUR HONOR, THE CRIME
TOOK PLACE, ON THE 24th OF.
>> HE WAS WAS THE TRUCK XALD.
>> BELIEVE THE TRUCK WAS
EXAMINED HOWEVER IT HAS IT WAS
IT WAS DAYS AFTERWARDS IT
WASN'T THAT THEY EXAMINED IT
IMMEDIATELY!!$$!!!!!!!!!!!!!!!!!!!!
IMMEDIATELY.
WE DON'T KNOW YOU KNOW WHETHER
THIS WAS WASHING OR ANYTHING
ELSE THAT COULD HAVE HAPPENED,
THE MERELY THE LACK OF
EVIDENCE DOESN'T HE.
>> WERE HIS CLOTH THIS IS
EXAMINED FOR BLOOD IN THE GOT
RID OF HIS CLOTHES WE HAVE DEB
DRA THOMAS' --
>> WAS THERE ANY -- ANYTHING
LAB ANALYSIS OF WHERE HE WAS
LIVING?
.
>> THEY FOUND NO BLOOD.
THEY FOUND NO FORENSIC
EVIDENCE LINKING HIM TO THIS
CRIME.
>> AND DURING THE SAME TIME,
THAT THE DEFENDANT GOES TOO
COUPLE OF BANKS, AND HE IF --
IF IN FACT, HE YOU COMMITTED
THIS MURDER ALL THIS BLOOD
THAT WE'VE BEEN DISCUSSING,
WAS ON HIM, HE GOES TO THE
BANK, HE SAYS HE WENT INSIDE!!$$!!!!!!IN ONE
OF THEM HE WENT THROUGH THE
DRIVE-THROUGH IN THE OTHER, DO
WE HAVE ANY HEAD OF THE ANYONE
SAW HIM AT THE BANK, AND HE
LOOKED BLOODY?
>> NO, WE DO NOT.
>> HOWEVER, OF COURSE IF HE IS
GOING THROUGH THE
DRIVE-THROUGH THERE MAY OR MAY
NOT HAVE BEEN A CONTACT,
DRIVE-THROUGHS ARE NOT
NECESSARILY RIGHT UP AT THE
WINDOW, THERE ARE -- THE TUBE!!$$!!!!!!
TUBING THAT COMES OVER YOU
COULD BE -- MANY FEET WAY FROM
A TELLER, AND -- WE DON'T KNOW
THE -- YOU KNOW, HER ANGLE OF
VIEW.
WHETHER OR NOT HE WENT INTO
THE BANK, THERE COULD BE A
DISPUTE ON THAT.
BUT --
>> ASSUME -- DON'T YOU THINK
IT IS TROUBLING, AS JUSTICE
TWILS JUST ASKED YOU JUSTICE
WELLS JUST ASKED YOU HERE IS A
PERSON SUPPOSEDLY HAS ALL THIS
BLOOD ON HIM YET NOT A TRACE
OF IT IS FOUND IN THE TRUCK?
>> NO, DO I NOT FIND THAT
TROUBLING!!$$!!!!!!!!!!!!!!!!
TROUBLING, YOU KNOW, I FIND
THE DEFENDANT COULD HAVE
CLEANED THE TRUCK, THERE COULD
HE A MYRIAD OF --
>> I KNOW QUITE OBJECTIVE WHEN
PEOPLE CLEAN WE HAVE HAD CASES
WHERE THEY CLEAN USE ALL OF
THESE CLEANING FLUIDS, AND
YET, STILL, YOU KNOW, THE
POLICE HAVE THIS -- I CAN'T
REMEMBER THE KIND OF
SUBSTANCE, THAT IT IS CALLED,
BUT ILLUMINATES EVEN WHEN THE
BLOOD IS NO LONGER THERE, BUT
HAS BEEN THERE.
>> MAYBE HE WAS JUST LUCKY
DIDN'T GETTING ANYTHING ON THE
TRUCK.
>> IF HE HAD ALL THIS BLOOD IN
HIS BATHROOM, SHE SAID THE
CLOTHES WERE ON THE MAT IN THE
BATHROOM AS I UNDERSTAND IT.
THE BATHROOM MAT WAS --
CHECKED, THE BATHROOM ITSELF
WAS CHECKED, AND, YET, YOU
KNOW, ALL OF THIS BLOOD AND
YET WE HAVE NO BLOOD ON
ANYTHING THAT THE DEFENDANT
TOUCHED!!$$!!!!!!!!!!!!
TOUCHED.
>> I THINK YOUR HONOR IS
GETTING -- UM -- CAUGHT UP IN
-- IN THE DEFENSE ARGUMENT
THAT EVERY PIECE OF EVIDENCE
HAS TO PROVE THE $$DEFENDANT'S
GUILTY, I THINK.
>> BUT I'M WHAT I'M INTERESTED
IN NOT THAT EVERY PIECE OF
EVIDENCE HAS TO PROVE GUILTY
BUT THAT EVIDENCE ALSO HAS TO
BE INCONSISTENT WITH HIS
REASONABLE -- WITH A
REASONABLE HIGH BOTH THIS OF
INNOCENCE WHEN YOU LOOK AT
CIRCUMSTANTIAL EVIDENCE, YOU
CAN ALSO LOOK AT THE ABSENCE
OF EVIDENCE, ALSO.
AND SO THAT IS WHAT IS
TROUBLING TO ME, IS THAT THERE
IS THIS ABSENCE ALSO OF
EVIDENCE.
>> WELL THERE IS AN ABSENCE OF
EVIDENCE, BECAUSE THE
DEFENDANT GOT RID OF THE RING
THIS AN ABSENCE OF EVIDENCE
BECAUSE THE DEFENDANT WASHED
HIMSELF, THERE IS AN ABSENCE
OF EVIDENCE, BECAUSE THE
DEFENDANT GOT RID OF THIS
CLOTHING!!$$!!!!!!!!!!!!!!
CLOTHING, THE FACT.
>> --
>> SPEAK TO HIS EXPLANATION IN
CONTEXT OF HOW HE EXPLAINED
THE MIDDAY WASHING --
>> HE DENIED THAT HE WENT HOME
TO WASH.
BUT WE HAVE THE PEOPLE AT THE
-- DEBORAH THOMAS SAYING THAT
HE WAS THERE HOME99WASHED, AND
WE HAVE THE -- WASHESING THE
PEOPLE AT THE -- LIFORD !!$$!!!!!!!!!!!!
LIFORD NURSING HOME SAYING HE
CAME IN LOOKING SCRUBBED HIS
HAIR WAS WET.
>> WHAT TIME OF DAY WAS THAT.
>> AROUND NOON.
>> WHAT IS WHAT TIME OF DAY
WAS THAT IT HE LEFT THE HOME?
>> HE LEFT HOME EARLIER IN THE
MORNING, AND THE $$STATE'S CASE
IS THAT HE COMMITTED THE
MURDER SOMETIME BETWEEN, 8:47,
AND 9:12.
>> HE DENIED TAKE SHOWER A
BIGGING BETWEEN.
>> THAT IS CORRECT, AND
REMEMBER, AT HIS POLICE
STATEMENT, HE WAS HOME THE
WHOLE MORNING, BUT BY THE TIME
WE GET TO TRIAL, NO, HE IS OUT
GALLIVANTING AND PUTTING
BROCHURES UP, AND -- DOING ALL
SORTS OF OTHER THINGS LOOKING
FOR --
>> AT LEAST PARTIALLY TRUE
BECAUSE OF THE CELL PHONE
RECORDS THE ONES YOU RELY ON
TO PUT HIM INTO THE AREA,
CERTAINLY DEMONSTRATE THAT HE
WAS OUT AND ABOUT; CORRECT?
>> YES AND IT IS CONVENIENT
THAT THE DEFENDANT IS TRYING
TO TAILOR HIS TESTIMONY TO THE
ACTUAL FACTS, IN ADDITION TO
THE FACT THAT HE WAS IN THE
AREAS WHERE THE WHERE YOU
COULD COMMIT THE CRIMES, AND
DURING -- DURING THAT TIME
FRAME!!$$!!!!!!!!
FRAME, HE WAS ALSO IN AN AREA
WHERE THE FANNIE FACT WAS
FOUND AND THAT CONTAINED ALSO
THE $$VICTIM'S ID AND OTHER
EVIDENCE.
>> ON THAT, IS THERE ANY
EVIDENCE THERE WAS CASH
APPARENTLY IN THE FANNIE BACK,
BUT WAS THERE ANY TESTIMONY
HOW MUCH CASH THERE WAS TO TIE
IT INTO THE CASH DEPOSIT, THE
AMOUNT OF 430 DOLLARS!!$$!!!!!!!!!!!!!!!!!!!!$430?
>> I DON'T BELIEVE THAT THERE
WAS ANYTHING TO SAID EXACTLY
HOW MUCH CASH THAT THE VICTIM
HAD IN HER FANNIE PACK.
>> HOW -- VERY, BLOODY
FOOTPRINT!!$$!!!!!!!!!!!!!!!!
FOOTPRINT, AND IF SO, WAS
THERE WHAT WAS THE EXTENT OF
THE ANALYSIS FOR -- SHOE SIZE
ANY CONNECTION ON THAT?
>> THE INITIAL OFFICER THAT
WENT IN THOUGHT HE SAW
FOOTPRINT!!$$!!!!!!!!!!!!!!!!
FOOTPRINT, BUT, BY THE TIME
THE FORENSIC PERSON ACTUALLY
PULLED IT, AND LOOKED AT IT.
HE SAID -- HE COULDN'T --
>> NOT EVEN A SIZE OR
ANYTHING?
>> NO, IT THERE WAS NOT
ENOUGH.
>> THERE WAS AN ATTEMPT TO.
>> THEY PULL IT BUT THEY
COULDN'T DO ANYTHING WITH IT.
>> YES YOUR HONOR?
>> WHAT WAS THE EVIDENCE THAT
THERE WAS EVEN MONEY IN THE
FANNIE PACK?
BECAUSE AS I UNDERSTOOD THE
FANNIE PACK WAS FOUND, I WANT
HAD CREDIT CARDS, IT HAD A
CHECKBOOK!!$$!!!!!!!!!!!!!!!!
CHECKBOOK, SOMETHING ELSE,
THAT I CAN'T REMEMBER EXACTLY
WHAT IN IT.
BUT HOW DO WE -- WHAT EVIDENCE
IS THERE THAT SHE ACTUALLY HAD
MONEY IN THAT FANNIE PACK.
>> THAT IS THAT WAS LIKE A P$$!!!!
PURSE.
>> I HAVE A P$$URSE I DON'T HAVE
ANY MONEY IN IT.
>> OH, I -- [LAUGHTER]
>> SORRY YOUR HONOR SO I
MEAN --
>> ARE WE ASSUMING THAT THERE
WAS MONEY IN THE FANNIE SNAKE
DON'T RECALL THAT THERE IS ANY
EVIDENCE THAT THERE WAS MONEY
IN THE FANNIE PACK.
>> WILL HAVE TO BEG TO
APOLOGIZE, BY MY RECOLLECTION
IS THERE WAS SOME EVIDENCE OF
THAT I MAY BE WRONG, BUT, THE
FACT THAT -- IT IS THE FACT
THAT THERE IS A FANNIE PACK
THAT IS FOUND IN A PARTICULAR
AREA WHERE THE DEFENDANT IS,
AND.
>> IT WAS FOUND WHEN.
>> FOUND SEVERAL MONTHS LATER,
BY HAPPENSTANCE.
>> JUST THAT THE LOCATION, OF
I-95 IS I MEAN, YOU KNOW I
THINK THERE IS TO ME, AND I
THINK JUSTICE STAYED EARLIER
THE CRITICAL TESTIMONY IS
ABOUT THE RING, IN MY VIEW,
AND THE VERY CONTRADICTORY
EXPLANATION THAT HE GAVE FIRST
TO IS HERE GIRLFRIEND, THAT HE
NEEDED TO DISPOSE OF IT TO GET
RID OF IT BECAUSE IT IS NOW
ALL OF THE SUDDEN IT IS HOT,
THAT HE -- SAID -- AND SOMEONE
ELSE GOT IT IN STATE!!$$!!!!!!!!ESTATE SALE I
THINK THOSE ARE VERY STRONG
INDICATIONS AND ALSO, NOW BUT
I WOULD LIKE TO ADDRESS THE
HEARSAY ISSUE, BECAUSE, I'M
HAVING A -- ONE HAND, YOU HAVE
ANOTHER PERSON, THAT IS
TESTIFIED ABOUT HIS INTEREST,
IN HER JEWELRY, WHICH IS
>> TWO OTHER PEOPLE.
>> ONE WAS -- THE -- THERE IS
THE COWORKER, AND THEN, BUT,
AS FAR AS THE SISTER, AND THE
AND HER HUSBAND, TESTIFYING,
IT REALLY SEEMS LIKE IT IS
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY, AND TO SAY THAT YOU
CAN TAKE SOMETHING THAT IS
HEARSAY THAT OTHERWISE WOULD
BE INADMISSIBLE, I MEAN I CAN
UNDERSTAND A PRIOR
INCONSISTENT STATEMENT OF A
DEFENDANT, BUT, AN ACTUAL
OTHER STATEMENT I DON'T KNOW
HOW YOU GET THAT IN EVIDENCE,
BASED ON JUST SAYING WELL IT
COMES TO IMPEACH, BECAUSE AS
MR. CALDWELL SAID, THE
IMPLICATION IS YOURLYING
BECAUSE YOU SAID YOU AREN'T
INTERESTED IN THE JEWELRY BUT
YOU TOLD JOAN THAT YOU WERE
INTERESTED BUT THE ONLY WAY
THAT COMES IN IS THROUGH THE
POLICE OFFICER, THROUGH THE
SISTER OR HUSBAND AND SO
FORTH, SO -- EXPLAIN, YOU
KNOW, IN AN EFFORT TO TRY TO
WANT TO MAKE SURE WE HAVE
ENOUGH EVIDENCE IN THIS CASE,
WE DON'T WANT TO -- WE DON'T
WANT TO CHANGE THE LAW, OF
EVIDENCE, IN A WAY THAT IS --
IMPERMISSIBLE!!$$!!!!!!!!!!!!!!!!!!!!!!!!
IMPERMISSIBLE, TO START
BACKWARDS WE HAVE OTHER TWO IT
WERES IN ES HAVE TESTIFIED TO
THIS, THAT THE DEFENDANT,
NOTICED THE JEWELRY, AND TOLD
THEM TO ACT ON IT.
>> WHO ARE THE --
>> -- QUESTION GO AHEAD.
>> MICHAEL OH, AND DEBORAH
THOMAS BOTH TESTIFIED TO THE
FACT THE DEFENDANT NOTICED HER
JEWELRY!!$$!!!!!!!!!!!!
JEWELRY.
>> OKAY THOSE WERE DIRECT
ADMISSION!!$$!!!!!!!!!!!!!!!!
ADMISSION.
>> THAT IS CORRECT.
>> OKAY, ALL RIGHT, NOW, YOU
HAVE TO SEPARATE.
>> YOU HAVE TO SEPARATE OUT
THE TESTIMONY OR THE STATEMENT
THAT HE GAVE TO THE POLICE,
FROM THE IT WERES INNES --
WINSS TEST WINS -- IT WERES IN!!$$!!
INNES THEFT OF $$VICTIM'S
HUSBAND AND SISTER TAKING THE
FIRST AMOUNT OF THE FIRST
EVIDENCE FIRST WHICH IS THAT
THE STATEMENT, WHAT THE POLICE
OFFICERS SAY TO DEFENDANT IS
NOT HEARSAY IT IS MERELY
STATEMENTS THAT ARE MADE AND
IT IS PUTTING IN CONTEXT WHAT
THE DEFENDANT REPORTS.
>> HOW IS IT NOT HEARSAY,$$!!!! FOR
INSTANCE IF A POLICE OFFICER
WAS TO SAY I'VE TALKED TO
MR. SMITH,AND MR. SMITH TOLD
ME YOU CAME OVER CONFESSED TO
HIM.
AND HE ALSO TOLD ME THIS, THAT
AND THE OTHER THING, WHICH IS
ALL YOU KNOW, HEARSAY, AND IN
TERMS OF AND THEN, JUST BY
ASKING THE DEFENDANT, A
QUESTION ABOUT THAT, THAT THE
STATE GETS THAT INTO EVIDENCE,
IN A SITUATION, WHERE THEY
WOULD NOT BE ABLE TO GET THAT
INTO EVIDENCE, OTHERWISE.
>> THIS COURT HAS SAID IN WARD!!$$!!!!!!
WARDEN THAT THE STATEMENTS
THAT THE POLICE PROPOUND TO
THE DEFENDANT DURING
QUESTIONING!!$$!!!!!!!!!!!!!!!!!!!!
QUESTIONING, ARE NOT HEARSAY.
THAT.
>> THAT!!$$!!EY ARE NOT BEING OFFERED
FOR THE TRUTH OF MATTER ASSERT!!$$!!!!!!!!!!
ASSERTED IT IS THE STATEMENT.
>> SO THE STATE CAN SAY YOU
KNOW, WE HEARD THAT YOU KILLED
SIX OTHER PEOPLE, ANDP THAT
YOU KNOW THIS IS JUST THE
SEVENTH MURDER THAT YOU HAVE
COMMITTED!!$$!!!!!!!!!!!!!!!!
COMMITTED, AND NOW ARE YOU
GOING TO DENY THAT YOU
COMMITTED THIS SEVENTH MURDER.
>> WELL, I SUPPOSE THERE COULD
BE OTHER OBJECTIONS TO THAT
KIND OF STATEMENT.
>> LET'S JUST TAKE IT AS WE
HEARD FROM MR. SUBMITTING --
SMITH THAT YOU COMMITTED OTHER
SIX MURDERS NOW AREN'T YOU ARE
GOING TO ADMIT THAT YOU
COMMITTED THIS 7TH MURDER.
>> ASSUMING THAT THERE IS NOT
ANOTHER OBJECTION, BASED ON
THE FACT THAT THE POLICE
OFFICER SAID IT, THAT CAN COME
IN HOWEVER I WOULD ASSUME
THERE IS GOING TO BE ON THE
ANOTHER OBJECTION.
>> KACASE SAYS THAT.
>> WARDEN SAYS ANYTHING THAT
POLICE SAY IN QUESTIONS TO A
DEFENDANT, ON INTERROGATION,
CANNOT BE HEARSAY.
>> I WOULD I WOULD -- THE WAY
I READ WHARTON IT IS ADMISSION!!$$!!!!!!!!!!!!!!!!
ADMISSIONS OR FINDING --
QUESTIONS PRO UP AND DOWNED BY
THE POLICE THAT ARE NOT
OFFERED FOR THE TRUTH OF THE
MATTER ASSERTED BUT MERELY TO
PUT THE $$DEFENDANT'S STATEMENTS
IN CONTEXT, COME IN.
NOW.
>> SURELY, SURELY WITH MY
HYPOTHETICAL!!$$!!!!!!!!!!!!!!!!!!!!!!
HYPOTHETICAL, YOU SEE, THAT --
THAT -- THAT -- THAT THAT
COULD NOT BE THE RULE OF
EVIDENCE THAT THE STATE CAN
PROPOUND ANY HEARSAY -- HE
THING IN THERE, AND BUT THAT
IS THE.
>> THAT IS WHY I SAID THAT
THERE IS THERE COULD BE OTHER
OBJECTIONS TO THAT PARTICULAR
QUESTION.
>> THREE OBJECTIONS -- TO --
JUSTICE --
>> RIGHT, HOWEVER THE POLICE
CAN LIE TO THE DEFENDANT, AND
THAT COMES IN, AND IT IS NOT
COMING IN FOR THE TRUTH OF THE
MATTER ASSERTED THEIR QUESTION
IS COMPLETE TOTAL LIE, SO.
>> WASN'T THE ARGUMENT ALSO
THAT THEY USED THIS AGAIN, IN
CLOSING ARGUMENT, I THINK
ARGUED!!$$!!!!!!!!!!
ARGUED, THAT IT DID COME IN
THIS ESTABLISHED THAT.
>> THERE COULD BE AND THERE
COULD BE, THERE SHOULD HAVE
BEEN AN OBJECTION AT THAT TIME
AND THERE WASN'T
>> SO WAS THAT IMPROPERLY
ARGUED BUT THERE SHOULD HAVE
BEEN OBJECTION THAT IS YOUR
POINT?
>> THAT IS CORRECT, THAT TAKES
CARE OF THE STATEMENTS TO THE
POLICE.
AND --
>> TO ME IT DOESN'T.
TAKE CARE OF IT.
BECAUSE I DON'T THINK, I
UNDERSTAND IN CONTEXT IF
POLICE IS RELATING WHAT THE
POLICE IS SAYING -- THE POLICE
THEN BECAUSE THEY ARE THERE TO
BE CROSS-EXAMINED,THAT IS NOT
-- THAT IS NOT HEARSAY ANYWAY,
BUT WHAT THE POLICE SAYS A
THIRD PARTY SAYS UNLESS THERE
IS SOMETHING ELSE, ABOUT IT,
WHICH IS THAT IT IS -- AS YOU
SAY CONTEXT THE ONLY CONTEXT
HERE WAS TO SAY YOU TOLD JOAN
THIS DIDN'T YOU ANDP HE GOES
NO.
SO -- YOU CAN'T I DON'T SEE
HOW YOU CAN GET SOMETHING IN
THE BACKDOOR THAT YOU CAN'T
GET IN THE FRONT DOOR WHEN IT
IS THE $$WHEN IT IS THE POLICE.
>> I THINK THE POLICE
STATEMENT IS LESS OF A
PROBLEM, THAN THE STATEMENTS
TO THE THAT CHAMBER OUT
THROUGH THE TESTIMONY, HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, IF YOU TAKE A LOOK AT
THE STATEMENTS THAT CAME OUT
THROUGH THE TESTIMONY AND I
UNDERSTAND YOUR $$HONOR'S
ARGUMENT THAT YOU KNOW, YOU
CAN'T GET IN THE FRONT --
BACKDOOR WHAT WHAT --
>> CAN'T GET IN THE FRONT
DOOR.
>> SIDE DOOR.
>> RIGHT MAYBE A WINDOW, YOU
KNOW --
>> IN ANY CASE, THE TRIAL
COURT LOOKED AT THOSE THAT
LATER TESTIMONY, AND SAIPD
WELL IT WILL IS GOING TO COME
IN, I CAN SEE IT IS HEARSAY
WITHIN HEARSAY, HOWEVER, WE
HAVE THE $$DEFENDANT'S
STATEMENT, AND THAT IS A
STATEMENT BY A PARTY OPPONENT,
SO HIS COMMENTS BACK HIS
STATEMENT BACK, IS OKAY.
THAT.
>> OF HIS STATEMENT BACK TO
THE POLICE -- WHO BRINGS THAT
STATEMENT IN?
ARE YOU TALKING ABOUT HIS
STATEMENT.
>> HIS STATEMENT THAT HE WAS
HE WAS LOOKING FOR THIS
JEWELRY!!$$!!!!!!!!!!!!
JEWELRY, SO IT IS A IT IS THAT
IS HIS STATEMENT.
>> WHO BRINGS THAT IN?
>> THE -- THE $$VICTIM'S SISTER,
AND HUSBAND.
>> THEY ONLY KNOW THAT,
THROUGH.
>> THROUGH THE VICTIM.
>> THROUGH HEARSAY STATEMENTS
FROM THE VICTIM.
>> LET ME ALSO -- OFFER THIS
TO YOUR HONOR THE ONLY REASON
WHY WE DON'T HAVE TESTIMONY OF
WHAT ACTUALLY TRANSPIRED
BETWEEN JOAN, AND THE
DEFENDANT IS BECAUSE THE JOAN
IS DEAD AT DEFENDANT'S HANDS
THAT SHOULD BE --
>> AND I --
>> WAITING TO SEE.
>> RIGHT.
>> -- WHETHER EITHER CRAWFORD
OR RAOUL OF FORFEITURE WAS
BEING ARGUED BECAUSE NOW I
THINK!!$$!!!!!!!!
THINK, YOU HAVE -- THAT -- I
DIDN'T SEE THAT.
>> CRAWFORD WASN'T ARGUED.
>> OR A RULE OF FORFEITURE DID
YOU ARGUE THAT?
>> NO, NO --
>> AS AN ADDITIONAL STATEMENT
YOU CAN TAKE A LOOK AT AS
ADDITIONAL GROUND TAKE A LOOK
AT IT AS FORFEITURE BY
WRONGDOING!!$$!!!!!!!!!!!!!!!!!!
WRONGDOING.
>> --
>> WHETHER OR NOT WOULD IT BE
HARMLESS!!$$!!!!!!!!!!!!!!
HARMLESS, BECAUSE YOU HAVE
ALREADY ALLUDED TO THE FACT
TWO OTHER IT WERES INNES
TESTIFIED TELL ME HOW
ELABORATE THEIR TESTIMONY WAS.
>> THE TESTIMONY WAS JUST THAT
CLEAR, THAT THE DEFENDANT HAD
NOTICED THIS JEWELRY SAID THAT
HE WANTED TO GET HIS -- WELL,
TO HE HAD TOLD NUMEROUS PEOPLE
THAT HE WANTED TO GET HIS
GIRLFRIEND A TWO CARAT DIAMOND
RING AMAZING HE FOUND TWO CAR!!$$!!!!
CARAT DIAMOND RING ON THE $$
VICTIM'S HAND.
>> TWO WITNESSES SAID HE MADE
A FUSS OVER THE JEWELRY THE
VICTIM HAD.
>> YES.
>> WHAT WLA DID COWORKER
ACTUALLY SAY CO.
>> COWORKER SAID WHAT THE
FAMILY WAS BRINGING IN
MONOPOLY VALA, THAT THE -- THE
THAT THE COWORKER, SHOULD TAKE
CARE THAT SHE IS VERY A
WEALTHY HAS JEWELRY SHE SHOULD
TAKE CARE OF, THIS PARTICULAR
FAMILY.
>> HE SAY THAT TO OTHER -- TO
HIM ABOUT ANOTHER FAMILY AT
LEAST.
>> YES BUT THE POINT IS HE
SAID ABOUT IT THIS PARTICULAR
VICTIM, HE SAID TO IT OTHERS
THAT HE WAS LOOKING FOR A TWO
CARAT DIAMOND RING FOR HIS
GIRLFRIEND!!$$!!!!!!!!!!!!!!!!!!
GIRLFRIEND, HE FOUND THE TWO
CARAT DIAMOND RING ON THE VERY
IM'S HAND HE TOOK FROM IT HER
YOU WITH VIOLENCE, AND THEN HE
SHOWS IT TO OTHERS WHETHER IT
BE HIS GIRLFRIEND WHO HE GAVE
IT TO AND SHORTLY AFTER THE
POLICE TAKE INTEREST, HE GETS
RID OF IT, OR ARE WHETHER HE
-- HE SHOWS TO IT OTHER
COWORKERS, WHO SAY IT IS IT
LOOKS SIM THE FACT IS HE HAS
SHOIN WITH TWO DAR -- CARAT
DIAMOND RING ON THE VERY
MORNING THAT MISS -- HAS LOST
HER TWO CARROT DIAMOND RING.
>> JUSTICE CANTERO HAS ONE
LAST QUESTION.
>> I HAD A QUESTION FROM A
COUPLE MINUTESBACK WHEN
TALKING ABOUT THE FORFEITURE
IT SEEMS TO ME THAT THE FOR
FUTURE IS AN ARGUMENT, AGAINST!!$$!!!!!!!!!!!!
AGAINSTP APPLYING CRAWFORD, IS
NOT AN ARGUMENT AGAINST
APPLYING THE HEARSAY RHYME.
--S HERE RULE.
>> TECHNICALLY, YES, HOWEVER
THERE IS AN ARGUMENT IN A
CRAWFORD YOU ARE NOT SUPPOSED
TO BRING IN IN THE HEARSAY IN
THESE FORMER STATEMENTS.
>> IF THERE IS NO CRAWFORD
ARGUMENT THERE IS NO DEFENSE
TO THE CRAWFORD ARGUMENT.
>> TRUE BUT I THINK I THINK
THERE COULD BE A STRETCH.
>> I'M --
>> -- I ASK YOU TO AFFIRM.
>> THANK YOU.
.
>> I WOULD ASK YOU WHY NOT
SUBSTANTIAL EVIDENCE, THAT THE
TESTIMONY OF THE LADY, THAT
TESTIFIED AS TO BLOOD ON THE
DEFENDANT, BLOOD ON THE $$
DEFENDANT'S CLOTHING, THE
RING, THAT WAS GIVEN TO HER,
AND THAT DISAPPEARANCE WHEN
POLICE -- WHY WOULD THAT NOT
BE COMPETENT EVIDENCE TO
SUPPORT HERE THE CONVICTION?
>> RIGHT I HAVE TO ACCEPT THAT
THAT IS TRUE FOR THE PURPOSES
OF THE SUFFICIENCY OF THE.
>> RIGHT.
>> -- OF THE EVIDENCE I WOULD
SUBMIT TO YOU THAT IT IS NOT
ENOUGH, BECAUSE IT DOESN'T
ESTABLISH IT ONLY ESTABLISHES
THAT HE HAD BLOOD ON HIM HAD A
SIMILAR RING, NOT THAT IT WAS
THE SAME RING.
AND THAT HE HAD SAID THAT HE
HAD GOTTEN THE RING IN WEST
PALM BEACH, SO AND THE $$STATE'S
THAT DOESN'T PROOF THAT HE
COMMITTED!!$$!!!!!!!!!!!!!!!!
COMMITTED.
>> WHERE DID GET IT FROM -- I
REALIZE IT IS NOT HIS BURDEN,
OTHER THAN SAYING I GOT IT IN
PALM BEACH DID HE SAY FROM
THIS PERSON -- FROM --
>> NO.
>> ANYTHING MORE THAN --
>> ANYTHING MORE THAN -- THE
RING HE SAID HE TESTIFIED THAT
HE GOT THE RING FROM A JEWELER!!$$!!!!!!!!!!!!
JEWELER, IN PORT ST. LUCIE, I
BELIEVE.
>> --
>> -- IDENTIFY, OR THE
PURCHASE EVER VERIFIED.
>> NO.
>> I REALIZE IT IS NOTE.
>> BUT --
>> RIGHT I UNDERSTAND WHAT YOU
ARE SAYING, AND NO, THERE WAS
NO --
>> THE RING THEN, EXCUSE ME.
>> GOES BACK TO THE GIRLFRIEND!!$$!!!!!!!!!!!!!!!!!!
GIRLFRIEND, AND SAYS NOW I
NEED THAT RING BACK.
THERE IS A PROBLEM.
>> THAT IS A SUSPICIOUS
CIRCUMSTANCE.
>> -- OF THE RING, SO -- OKAY,
THOSE CIRCUMSTANCES HAVE TO BE
ADDED TO THIS TOO.
>> YES, SIR THAT IS CORRECT.
>> IN ADDITION TO BLOODY
CLOTHES RIGHT AT THE TIME.
>> RIGHT.
>> THAT THIS -- BRUTAL MURDER
OCCURRED!!$$!!!!!!!!!!!!!!
OCCURRED; IS THAT CORRECT?
>> I'M SORRY WHAT WAS I DIDN'T
HEAR THE LAST PART.
>> HE CAME HOME, WITH IN THE
BLOODY CLOTHES.
>> RIGHT.
>> HOME THE PLACE HE WAS
SHARING WITH THE GIRLFRIEND.
>> RIGHT.
>> AT THE SAME TIME OR
IMMEDIATELY AFTER THE TIME
THAT THE VICTIM WAS KILLED.
; IS THAT CORRECT?
>> THAT WAS THE TESTIMONY.
IT WAS IT WAS -- SHE GAVE
DIFFERENT TIMES FOR IT BUT
RIGHT THAT DAY AROUND NOON!!$$!!!!!!
NOONTIME.
>> THE POLICE GO AHEAD!!$$!!!!!!!!!!!!!!PLEASE RESPONDS
TO ARGUMENT.
>> MY GOOD FRIEND I HAVE TO
DISAGREE WITH A COUPLE THINGS
SHE SAID ABOUT THE RECORD ONE
WAS THIS TESTIMONY, OF THE
COWORKER AND DEBORAH THOMAS
ABOUT -- WE HAVE SASHING --
SHE OCCASIONING RISES SAYING
HE WAS INTERESTED IN HER RING
THE GIRLFRIEND SIMPLY
TESTIFIED, THAT HE SAID HE WAS
GOING TO GET HER HE WAS GOING
TO GET HER A RING, FROM WEST
PALM BEACH, THE COWORKERS
SIMILAR PLOOEP SAID JEWELRY
WAS DISCUSSED.
WHERE!!$$!!!!!!!!
WHEREAS, THE HUSBAND CAME IN,
AND HEARSAY, THE HUSBAND CAME
IN, AND SPECIFICALLY SAID THE
DEFENDANT WAS LOOKING AT HER
RING, WANTED TO KNOW THE SIZE
OF IT, WAS ASKING DETAILS
ABOUT IT.
AND THE SISTER SAID THAT HE
ASKED ABOUT THIS MORE THAN
ONCE THAT WAS THE TESTIMONY
THAT THE STATE RELIED ON IN
FINAL ARGUMENT.
SECONDLY, I WOULD LIKE TO
POINT OUT.
>> IF HE SHE HAD!!$$!!!!!!!!!!!!IF SHE HAD SAID TO
HER HUSBAND I'M REALLY WORRIED
THIS GUY IS STALKING ME, WOULD
THAT COME INTO EVIDENCE?
>> WELL, THAT MIGHT BE SOME
SORT OF STATE OF MIND, EX--
EXCEPT!!$$!!!!!!!!!!
EXCEPTION, BUT IT WOULD
CERTAIN DEPEND ON THE
CIRCUMSTANCES, AND IN THE
RIGHT -- I THINK UNDER THE
RIGHT CASE WHICH I CITED IN MY
BRIEF, I WOULD SAY THAT WOULD
BE ANNED A MISS --
INADMISSIBLE NORMALLY
DISCUSSIONS BETWEEN THE VICTIM
AND THE DEFENDANT CAN NOT BE
BROUGHT, IN UNDER EXCEPTIONS
TO HEARSAY.
>> PLEASE BRING YOUR ARGUMENTS
TO A CONCLUSION GET OUT WHAT
YOU NEED TO SAY IN A MINUTE
BECAUSE YOU ARE OVER YOUR
TIME.
>> LET ME MAKE TWO BRIEF
POINTS!!$$!!!!!!!!!!
POINTS, ONE GOES TO WHAT
JUSTICE CANTERO ASKED ABOUT
THE SMAR MILES THAT SQUARE --
SQUARE MILE FIGURE WAS FOR THE
85% AREA OF COVERAGE NOT THE
100%, WHICH WAS WHAT THE
TESTIMONY WAS ABOUT.
AND THE WITNESSES SAID HE DID
NOT KNOW WHAT THE SQUARE MILES
WERE FOR THE 100% AREA.
WHICH WAS APPARENTLY QUITE A
ABOUT BITE BIGGER SECOND POINT
I WANT TO MAKE IS THE TIMING,
WHEN THE JEWELS WERE FOUND,
THE DETECTIVE TALKED TO THE
FELLOW BEN THOMAS, A WEEK
BEFORE THE GRAND JURY THE
GRAND INJURY WRY WAS OCTOBER!!$$!!!!!!!!!!!!
OCTOBER 22ND, SO THAT WOULD
HAVE BEEN ABOUT OCTOBER 15TH.
THAT THE DETECTIVE TALK TO BEN
THOMAS, THE JEWELRY WAS FOUND
TWO WEEKS, AFTER OCTOBER 3RD,
ACCORDING TO THE WIFE WHICH
WOULD HAVE BEEN AROUND OCTOBER!!$$!!!!!!!!!!!!
OCTOBER 17TH, I'M SORRY NOT --
WHEN THE BOYFRIEND, BEN THOMAS
CAME TO THE HOUSE, WHERE THE
JEWELRY WAS FOUND, SO ON
OCTOBER 125!!$$!!!!!!!!!!!!!!!!!!!!
OCTOBER 125 OCTOBER!!$$!!!!!!!!!!!!!!!!!!, '25 OCTOBER 15TH
THE DETECTIVE TELLS HIM WE
NEED JEWELRY, OCTOBER 17TH
MR. THOMAS IS WHERE THE JEWELS
WERE FOUND SO BASED UPON, ALL
THE PRESENTATIONS, AND MY
BRIEF, I -- RESPECTFULLY
REQUEST REVERSAL IN THIS CASE
THAT YOU.
>> THANK YOU VERY MUCH WE WILL
TAKE THE CASE UNDER ADVISEMENT
WE STAND IN RECESS THIS
MORNING.
>> PLEASE RISE.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,