The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Thomas D. Woodel v. State of Florida
SC05-1336
GOOD MORNING.
>> GOOD MORNING.
THE COURT IS BACK IN
SESSION.
PLEASE BE SEATED.
THE LAST CASE ON THE
CALENDAR THIS MORNING IS
WOODEL VERSUS THE STATE
OF FLORIDA.
MR. MOELLER, ARE YOU
READY TO PROCEED?
>> THANK YOU.
MAY IT PLEASE THE COURT.
I AM ROBERT MOELLER WITH
THE 10th JUDICIAL SIR
KET HERE ON BEHALF OF
THE APPELLANT THOMAS
WOODEL.
THIS CASE IS BEFORE THE
COURT FOR THE SECOND
TIME, PREVIOUSLY
CONVICTED AND SENTENCED
TO TWO SENTENCES OF
DEATH FOR THE MURDERS OF
BERNICE AND CLIFFORD
MOODY.
THIS COURT OVERTURNED
HIS SENTENCES DUE TO THE
FAILURE OF THE INITIAL
TRIAL COURT TO
ADEQUATELY CONSIDER THE
MITIGATING CIRCUMSTANCES
AND WENT BACK DOWN THE
TRIAL JUDGE DETERMINED
THAT A WHOLE NEW
SENTENCING PROCEEDING
BEFORE A JURY SHOULD BE
HELD IN THAT NEW
PROCEEDING THE JURY
RECOMMENDED A LIFE
SENTENCE FOR THE KILLING
OF CLIFFORD MOODY AND
RETURNED A 75 DEATH
RECOMMENDATION TO THE
KILLING OF BERNICE MOODY
AND THE TRIAL COURT
FOLLOWED THE
RECOMMENDATIONS
SENTENCING MR. WOODEL TO
LIFE FOR THE CLIFFORD
MOODY KILLING AND TO
DEATH FOR THE BERNICE
MOODY KILLING.
>> WHAT IS SHE GOING TO
ARGUE?
>> WELL, IF I HAVE TIME,
I WOULD LIKE TO HIT ALL
ISSUES.
THE FIRST ISSUE DEALS
WITH THE EXCUSEAL OF TWO
POTENTIAL JURORS ON THE
BASIS THEY WERE WERE NOT
SUFFICIENTLY FLUENT IN
ENGLISH TO PARTICIPATE
IN THE PROCEEDINGS.
>> YOU CONTEST THAT
WHETHER OR NOT WITHOUT
INTERPRETER THEY
WOULDN'T HAVE BEEN ABLE
TO PARTICIPATE FULLY IN
THE TRIAL?
>> AS FAR AS THE RECORD
INDICATES, IF THERE WAS
AN INTERPRETER, THEY
WOULD HAVE BEEN ABLE TO.
>> WITHOUT AN
INTERPRETER.
>> OH, WITHOUT AN
INTERPRETER.
THE RECORD APPEARS TO
REFLECT THEY COULD NOT
ADEQUATELY UNDERSTAND
WITHOUT INTERPRETER.
>> WHAT WAS THE EVIDENCE
AS TO WHETHER OR NOT
THERE WAS AN INTERPRETER
AVAILABLE FOR THE TRIAL?
>> JUST SOME COMMENTS
THAT THE JUDGE MADE THAT
THEY DID NOT HAVE AN
INTERPRETER AVAILABLE
FOR THE JURY SELECTION
PROCESS.
WHETHER THEY COULD HAVE
FOUND ONE EVENTUALLY,
THE RECORD DOESN'T
REFLECT THAT.
> IT SEEMS TO ME, THE
BIG, AGAIN, THERE IS A
LOT, A VERY FASCINATING
ISSUE, I AM NOT SURE IT
IS REVERSIBLE ISSUE, YOU
ARE NOT MAKING THE
ARGUMENT THAT IN ORDER
TO VINDICATE BOTH THE
JURORS AND YOUR CLIENT
THREW RIGHTS THAT THERE
IS A RIGHT TO HAVE IN
TERP OPERATOR IN THE
JURY DELIBERATIONS AS
THERE IS FOR THOSE WHO
ARE HEARING IMPAIRED?
ARE YOU MAKING THAT
ARGUMENT?
>> WELL, WE ARE
EVENTUALLY MAKING THAT
ARGUMENT, YES.
OUR ARGUMENT IS TWOFOLD,
REALLY, THAT EXCLUSION
OF THE JURORS SLIGHTED
THE CROSS SECTION
REQUIREMENT, THE CROSS
SECTION REQUIREMENT OF
THE 6th AMENDMENT AN
VIOLATION.
>> THE ONLY WAY -- THE
ONLY WAY LORENZO WOULD
BE WRONG, REVERSED
BECAUSE THERE WAS AN
INTERPRETER IN THE JURY
ROOM YOU WOULD SAY THERE
IS A RIGHT TO HAVE AN
INTERPRETER IN THE JURY
ROOM OF THE LANGUAGE
THAT THE PERSON IS
PRIMARY LANGUAGE?
>> YES.
IN DELORENZO.
>> THAT IS YOUR ARGUE.
>> YES.
>> IN DELORENZO, I WOULD
POINT OUT, THERE WAS A
DEFENSE OBJECTION TO
HAVING THE IN TERP
OPERATOR IN THE JURY
ROOM, WE'RE SAYING THE
INTERPRETER SHOULD HAVE
BEEN ALLOWED AND THE --
WE ALSO POINT OUT THAT
BETWEEN THE FACT THAT
DEAF OR HARD OF HEARING
ARE PERMITTED TO HAVE
INTERPRETER EVEN IN THE
DELIBERATION ROOM.
WE CITE ADLAH REVIEW
ARGUMENT IN THE BRIEF
THAT DISCUSSES THAT
ISSUE AT SOME EXTENT AND
THE CONTEXT OF EQUAL
PROTECTION.
>> WHAT WAS THE EVIDENCE
AS TO WHAT BACKGROUND
THESE JURORS WERE FROM?
ARE THESE HISPANIC
JURORS?
YOU YES, I BELIEVE THEY
WERE.
>> WHAT EVIDENCE DID YOU
PROVIDE THAT THERE WERE,
WHAT HISPANIC JURORS
WERE LEFT IN THE VOIR
DIRE AFTER THEY WERE
EXCUSED FOR CAUSE.
DON'T YOU HAVE TO SHOW
THAT IN ORDER TO
DEMONSTRATE THAT THE
VOIR DIRE DID NOT HAVE
AN ADEQUATE CROSS
SECTION THAT THERE WERE
INSUFFICIENT OR NO
HISPANICS LEFT ON THE
PANEL?
I DON'T THAT I BY CROSS
SECTION, YOU MEAN WE
NEED SOME JURORS WHO
DON'T KNOW ENGLISH, YOU
WHAT MEAN IS, WE NEED
JURORS WHO ARE HISPANIC,
ASIAN, WHATEVER THEY
REFLECT THE COMMUNITY IN
WHICH THEY LIVE AND I AM
SURE YOU CAN FIND
HISPANICS THAT DO SPEAK
ENGLISH, DON'T NEED AN
INTERPRETER.
SO DOESN'T YOUR CLAIM
FAIL JUST ON THE BASIS
THAT YOU HAVE HAVEN'T
IDENTIFIED THE FACT THAT
THERE WERE NO OTHER
HISPANICS AVAILABLE TO
SERVE?
>> WELL, CERTAINLY
CONCEDE THAT THE RECORD
IS NOT AS DEVELOPED AS
WELL AS IT COULD HAVE
BEEN.
>> THAT OBJECTION WAS
NOT MADE TO THE TRIAL
COURT ETHER?
>> WHICH OBJECTION?
>> THE OBJECTION ON THE
BASIS THAT THE VOIR DIRE
DR NOT CONTAIN THE
AMOUNT OF UNDERSERVED
CLIENTS AS? WELL,
OBJECTION EVENTUALLY WAS
THAT EX COLLUSION OF
THESE POTENTIAL JURORS
WOULD DEPRIVE MR. WOODEL
UNDER THE 6th AMENDMENT.
>> THAT IS AN ATTACK ON
THE VOIR DIRE, CORRECT?
UNDER THE U.S. SUPREME
COURT HOLDING AS TO
CROSS SECTION?
YEAH, EVENTUALLY, THAT
IS CORRECT.
GAIN, THE RECORD IS NOT
AS DEVELOPED AS I WOULD
HAVE LIKED IN THIS
REGARD.
>> ISN'T THAT -- MY
CONCERN ABOUT THE
CONSTITUTIONAL
IMPLICATIONS IS THAT ON
THE FEDERAL STATUTE
THERE IS ACTUALLY A
CRAWLFICATION FOR
PROFICIENCY IN THE
ENGLISH LANGUAGE, TO MY
KNOWLEDGE, AND HER NAN
DEZ MAY WONDER WHERE
THEY GO ON IT, BUT THAT
STATUTE NEVER BEEN
ATTACKED WITH BEING
UNCONSTITUTIONAL.
>> YEAH, I DON'T KNOW
WHETHER IT HAS BEEN OR
NOT.
I KNOW THAT IN FLORIDA,
WE DON'T HAVE A SIMILAR
REQUIREMENT.
I COULDN'T FIND.
I UNDERSTAND THAT.
INSTEAD OF SAYING THE
JURORS HAD A RIGHT TO
SERVE BECAUSE, EVEN
THOUGH THEY COULD NOT
SPEAK ENGLISH, WE GET
BACK TO JUSTICE
CANTERA'S QUESTION, IS
THAT, I AM SURE YOU
AGREE, THE FAIR CROSS
SECTION COULDN'T BE FAIR
CROSS SECTION OF THOSE
JURORS THAT DON'T
UNDERSTAND THE ENGLISH
LANGUAGE.
>> WELL, THAT IS
CORRECT.
IT IS A FAIR CROSS
SECTION OF THE TEN TIRE
COMMUNITY, THAT IS
CORRECT.
>> BUT AS I WAS SAYING,
HE DON'T HAVE A
REQUIREMENT IN FLORIDA
THAT THE JURORS MUST BE
PROFISH SENT IN ENGLISH.
YOU COULDN'T FINE
ANYWHERE THIS A JUR
JUROR WOULD BE
DISQUALIFIED BECAUSE HE
IS NOT FLUENT ON THE
ENGLISH LANGUAGE.
>> IT SEEMS TO ME THE
MORE COMPELLING ONE THAN
THE CONSTITIAL TUINGAL
ISSUE, THAT IS SIMPLY A
PLY THAT THE STATUTE
SAYS JURORS SHALL BE
EXCUSED FOR CAUSE ONLY
FOR THE FOLLOWING
REASONS AND THAT IS NOT
ONE OF THEM.
>> THAT IS RIGHT.
>> THE STATE TORY
ARGUMENT NOT A
CONSTITUTIONAL ONE.
>> IT COULD BE.
WE COULD MENTION THAT,
WE HAVE MENTIONED THAN
THE BRIEFS.
>> AGAIN, THAT WAS NOT
MENTIONED TO THE TRIAL
JUDGE?
>> NOT SPECIFICALLY, NO.
UNFORTUNATELY, IT WAS.
>> SOMEHOW I WOULD HAVE
A FEELING THAT THOSE
DEFENDANTS STATE MIGHT
HAVE A PROBLEM WITH
HAVING, YOU KNOW, A
FOREIGN LANGUAGE
INTERPRETER IN THE JURY
ROOM DELIBERATING.
THAT IS SOMETHING TO
STUDY IN THE FUTURE.
>> RIGHT.
THAT IT WOULD BE UNCAN
CONSTITUTIONAL IN SOME
WAY NOT TO ALLOW AN
INTERPRETER INTO THE
JURY ROOM.
AND YOU ARE SAYING THAT
ARGUMENT WAS NO SPAT
SPECIFICALLY MADE,
CORRECT.
>> WELL, THERE WAS A
REFERENCE THAT AN
INTERPRETER WOULD NOT BE
ALLOWED INTO THE JURY
ROOM.
WAS THIS PART OF HIS
ARGUMENT, YES.
>> THE DEFENSE COUNCIL
DID NOT THEN ARGUE THAT
THE CONSTAY TUGSAL RIGHT
TO HAVE A FAIR CROSS
SECTION WOULD INCLUDE
THE RIGHT FOR A
NON-ENGLISH-SPEAKING
JUROR TO HAVE AN
INTERPRETER IN THE JURY
ROOM.
I THINK THAT WAS EM
COMPASSED IN THE
ARGUMENT THAT THE
DEFENSE COUNSEL DID
MAKE, YES.
>> WELL, CAN YOU
IDENTIFY FOR ME WHERE HE
MADE THE SPECIFIC
ARGUMENT THAT IT WOULD
BE UNCONSTITUTIONAL NOT
TO ALLOW THE INTERPRETER
IN THE JURY ROOM?
BECAUSE FROM MY
UNDERSTANDING, ALL HE
SAID WAS, YES, WE
UNDERSTAND, THE
INTERPRETER WOULD NOT BE
ALLOWED TO GO INTO THE
JURY ROOM?
>> WELL, I THINK, THAT
IS PART OF THE ARGUMENT
REGARDING THE FAIR CROSS
SECTION, IF YOU, IF
THESE JURORS COULD SERVE
IF IN DERP OPERATOR WAS
PERMITTED TO GO INTO THE
JURY ROOM WITH THEM.
I THINK THAT WAS PART OF
HIS ARGUMENT.
>> ON THE CROSS SECTION
ARGUMENT, AND I
UNDERSTAND THOSE CASES
THAT TALK ABOUT, YOU
KNOW, THE DEFENDANT WHO
IS, YOU KNOW, THE ONE
CHARGED, YOU HAVE TO
HAVE AN INTERPRETER
THERE IF YOU NEED IT,
SWNS WHO NEEDS
INTERPRETATION LIKE THAT,
BUT BEYOND THAT, WHY, IF
THIS IS NOT, IF THIS IS
INTO THE VIOLATION OF A
FAIR CROSS SECTION, IS
THERE ANY OTHER RIGHT
THAT IS BEING VIOLATED
IF A JUROR WHO DOES NOT
SPEAK ENGLISH IS NOT
ALLOWED ON THE JURY.
I MEAN, WE DO HAVE, YOU
KNOW, THE CONSTITUTIONAL
AMENDMENT THAT TALKS
ABOUT ENGLISH BEING
OFFICIAL LANGUAGE OF THE
STATE OF FLORIDA, THOSE
KIND OF ISSUES, SO IS
THERE SOMETHING ELSE
THAT{_ IS BEING VIOLATED
IF, IF THESE JURORS ARE
NOT ALOUD TO SIT?
>> WELL, THE EQUAL
PROTECTION CLAUSE, WE
HAVE RAISED, THAT WOULD
GO TO THE RIGHT OF THE
JURORS TO SIT ON THE
JURY AND AGAIN, WE
POINTED OUT THE FACT
THAT WITH POTENTIAL
JUROR, HARD OF HEARING
JUROR, THEY ARE ALLOWED
TO HAVE INTERPRETEROR IN
THE DELIBERATION WITH
WITH THEM.
>> BUT IF THE FEDERAL
STATUTE WHICH SAYS, YOU
KNOW, THAT JURORS MUST
BE PROFICIENT IN ENGLISH
IS NOT A VIE LAFTION
EQUAL PROTEST, THEN
SIMPLY BECAUSE WE DON'T
HAVE A STATUTE THAT IS
WHY IT IS A VIOLATION OF
EQUAL PROTECTION?
>> WELL, IT COULD BE A
VIOLATION OF FLORIDA'S
CONSTITUTIONAL
PROVISIONS, THE PARALLEL
OF THE UNITED STATES'
CONSTITUTION, AGAIN, WE
DON'T, IN FLORIDA, WE
DON'T HAVE THAT
REQUIREMENT FOR ENGLISH
SPEAKER, BUT WE HAVE
CONSTITUTIONAL
GUARANTEES IN THE
FLORIDA CONSTITUTION AS
WELL, THAT IS WHY IF THE
COURT CAN'T REACH THIS
ISSUE OR DOESN'T WANT TO
DECIDE ON A FEDERAL
BASIS, WE ARE ASKING IT
USE THE STATE
CONSTITUTIONAL IN ORDER
TO RESOLVE ISSUE.
>> STATE CONSTITUTIONAL
PROVISIONS THAT SAY
WHAT?
>> THAT THE GUARANTEE
RIGHT TO JURY TRIAL AN
EQUAL PROTECTION.
>> YOU KNOW, AND
PROBABLY, YOU PROBABLY
NEED TO GET ON WITH OUR
OTHER ARGUMENT, I AM
THINKING OF ALL SORTS OF
ISSUES, SIGN INTERPRETER,
FOR WHOEVER IS HEARING
IMPAIRED, I AM NOT SURE
HOW AS A PRACTICAL
MATTER, YOU WOULD HAVE
INTERPRETERS FOR EVERY
JUROR THAT COULDN'T
SPEAK ENGLISH, WHATEVER
THEIR LANGUAGE WAS
SPEAKING IN TERP
OPERATING AT THE SAME
TIME YOU MIGHT EVEN BE
HAVING A WITNESS
SPEAKING AND IN TRERP
INTERPRETING, HAVE YOU
REVIEWED THAT?
>> WELL, THAT IS OUTSIDE
THE SCOPE OF WHAT I AM
PREPARED TO ADDRESS.
, IF THERE WOULD BE
CERTAIN PRACTICAL
PROBLEMS THAT WOULD
ARISE, BUT WE HAVE, WHEN
YOU HAVE A CRITICAL
WITNESS THAT DOESN'T
SPEAK ENGLISH, YOU HAVE
TO HAVE INTERPRETER FOR
HIM NO MATTER HOW MANY
MIGHT BE ALL SPEAKING
DIFFERENT LANGUAGES SO
CERTAINLY THERE WOULD BE
CERTAIN PRACTICAL
PROBLEMS OF WHAT HAS TO
BE RESOLVED.
>> IF I COULD, I WOULD
LIKE TO MOVE ON NOW THE
SECOND ISSUE HAVING TO
TO DEAL WITH IMPROPER
TESTIMONY FROM STATE
WITNESS ARTHUR WHITE, HE
WAS GENTLEMEN THAT
SERVED TIME IN THE PI
NAL LESS COUNTY JAIL
WITH THE DEFENDANT AND
HIS TESTIMONY IN PART
DEALT WITH STATEMENTS
THE DEFENDANT MADE TO
HIM WHILE THEY WERE IN
JAIL AND THE STATEMENTS
WERE HIGHLY PREJUDICEY
TO THE FACT HE ADMITTED
TO FONDLED BERNICE
MOODY, THE REASON THIS
SHOULD HAVE BEEN NOT
ALLOWED BECAUSE IT WAS
IR REL VANT TO ANY
ISSUES IN THE CASE,
THERE WAS NO ALLEGATION
OF ANY KIND OF A SEXUAL
ASSAULT.
>> THERE WAS -- THE
STATE WAS SEEKING
AGGRAVATOR, RIGHT?
>> YES.
>> WHY WERE NOT THE
CIRCUMSTANCES AROUND
DEATH OF THIS LADY NOT
BE RELEVANT?
>> WELL, I THINK THE HAC
WAS BASED MORE ON THE
MANNER OF THE KILLING
WHETHER THAN THE THIS
PARTICULAR ACT, THE
STATE DIDN'T RELY UPON
THIS AT ALL, IT
SHOULDN'T HAVE COME IN.
IT WAS CERTAINLY
INFLAMMATORY.
>> THE STATE DIDN'T RELY
ON UT.
HOW IS IT ERROR?
>> WELL, BECAUSE THE
JURY HEARD IT.
THEY MAY HAVE CONSIDERED
IT.
>> NO, IT WAS NOT
OBJECTED TO.
>> THAT NOW WE HAVE TO
DECIDE WHAT IT GOES TO
THE ESSENCE OF THE TRIAL
SO A JURY VERDICT COULD
MOT HAVE BEEN OBTAINED
WITHOUT IT.
HOW IS THAT THE CASE
WHEN THE STATE DIDN'T
RELY ON IT?
>> WELL, BECAUSE WE
DON'T KNOW IF THE KRUR
RY RELIED ON IT OR NOT.
IT IS TRUE THE STATE
DIDN'T RELY UPON IT.
THE JURORS MAY HAVE.
THIS WAS A 7-5 DEATH
RECK PENDATION, IF ONE
JUROR WAS SWAYED OR
INFLUENCED BY THIS
TESTIMONY, IT WOULD
EFFECT.
>> THE RECORD THAT THE
VICTIM'S CLOTHES HAD
BEEN REMOVED BY THIS
DEFENDANT, CORRECT?
>> YES.
I THINK SHE WAS FOUND
WEARING EITHER JUST
SHOES OR JUST SOCKS,
THERE WAS SOME
DISCREPANCIES.
>> HER UNDERWEAR TIED IN
A KNOT.
>> THAT IS WHAT HE SAID.
YES, THAT IS CORRECT.
>> THAT WAS PART OF THE
THE OVERALL EVIDENCE?
>> YES, IT WAS.
>> OKAY.
I WOULD LIKE TO MOVE ON
TO ISSUE 3 WHICH HAS TO
DO WITH THE SUFFICIENCY
OF THE EVIDENCE TO
SUPPORT THE AGGRAVATING
CIRCUMSTANCE THAT
BERNICE MOODY WAS TAR
PICKCALLY VULNERABLE TO
ADVANCED AGE OR DISICT.
>> WE UPHELD THIS WHEN
HE WAS HERE BEFORE,
CORRECT?
>> YES, YOU DID.
I THINK AT THIS TIME IS
APPROPRIATE TO RERAISE
IT, THOUGH, ON THE SLATE
PRINCIPAL, ALSO THE FACT
THAT THE EVIDENCE WAS A
LITTLE BIT DIFFERENT IN
THIS TIME AROUND IT WAS
SIMILAR, BUT IS WAS NOT
EXACTLY THE SAME AS THE
FIRST PENALTY TRIAL.
>> THIS LADY WAS 75
YEARS OLD, RIGHT?
>> 74, ACTUALLY.
>> HOW OLD WAS YOUR
DEFENDANT?
>> HE WAS 26.
>> AND SO IN THE FACT
THAT HERE WAS
74-YEAR-OLD LADY AND A
26-YEAR-OLD GUY, I MEAN,
ISN'T THAT IN OF ITSELF
SORT OF SUFFICIENT TO
SHOW ADVANCED AGE, AND
HE COULD TAKE ADVANTAGE
OF HER BECAUSE OF HER
AGE AND HIS YOUTH,
RELATIVE YOUTH?
>> WELL, FIRST OF ALL,
THERE WAS NOT ANY
EVIDENCE THAT HE
TARGETED THESE PEOPLE
BECAUSE THEY WERE
ELDERLY.
I WOULD LIKE TO MAKE
THAT POINT.
>> WAS THAT A NECESSARY
ELEMENT?
>> WELL, I DON'T THINK
IT IS NECESSARY ELEMENT,
BUT IT IS CERTAINLY GOES
TO THE WEIGHT THAT
SHOULD BE ACCORDED THIS
CIRCUMSTANCE I BELIEVE,
BUT AS FAR AS, I DON'T
THINK THERE IS A PER SE
RULE THAT AT A CERTAIN
AGE, THIS WOULD APPLY,
THE COURT HAS REJECTED
THAT THAT THERE IS A
CERTAIN AGE WHERE THIS
WOULD APPLY.
>> THERE ARE MEDICAL
EVIDENCE HERE, THOUGH,
THIS INDIVIDUAL HAVE
SOME ARM INJURIES?
>> RIGHT.
ESSENTIALLY THE EVIDENCE
WAS THAT SHE HAD HURT
HER ARM SOME MONTHS
BEFORE THE HOMICIDE, IT
WAS NOT CLOSE IN TIME TO
THE HOMICIDE.
I BELIEVE THE INJURY
HAPPENED ON THE SPRING
AND THE HOMICIDE
OCCURRED AT THE END OF
DECEMBER,,,,,,,,,,,,
WAS FROM THE, HER RELATIVES
WHO SAID THAT ALTHOUGH THIS
INJURY HAD OCCURRED, AND YES
IT WAS FAIRLY SERIOUS AT THE
TIME, AGAIN, IT WAS MONTHS
BEFORE THE HOMICIDE AND SHE
HAD PRETTY MUCH RECOVERED
FROM IT, AND SHE WAS ABLE TO
DO MANY, MANY THINGS.
>> WEREN'T ALL THOSE SAME
ARGUMENTS AVAILABLE IN THE
PREVIOUS APPEAL?
>> RIGHT, AND THEY WERE MADE,
AND BUT I JUST, THE
EVIDENCE, THE EVIDENCE WAS
SIMILAR BUT I, TO ME IT SEMD
MUCH WEAKER THIS TIME AROUND
ON THESH WITH REGARD TO HER
DISABILITY IN HER ARM
INJURY.
JUST, MOVING ON BRIEFLY TO
THE, WHETHER THE DEATH
SENTENCE IS JUSTIFIED IN
THIS CASE, I'D LIKE TO POINT
OUT FIRST OF ALL THAT
MR. WOODEL HAS NO HISTORY OF
VIOLENCE WHATSOEVER.
THIS COMMITTING OF ACTS SUCH
AS THIS WAS TOTALLY OUT OF
CHARACTER FOR THE DEFENDANT
TO COMMIT.
AND IT SEEMS THAT HIS
INTOXICATION ON THE NIGHT OF
THE HOMICIDES PLAYED A
SIGNIFICANT ROLE IN THIS AND
MAY HAVE LED UP TO THE
KILLINGS.
ALSO, HE HAS DISPLAYED QUITE
A BIT OF REMORSE FOR WHAT
HAPPENED THAT, THAT NIGHT OR
EARLY MORNING, AND AS THE
TESTIMONY SHOWED, HE HAD AN
EXTREME TREMELY NEGLECTED
AND ABUSED CHILDHOOD
RESULTING IN CHRONIC
DEPRESSION AND LOW
SELF-ESTEEM AS WE SAW FROM
THE TESTIMONY OF HIS
RELATIVES, PARTICULARLY HIS
SISTER BOBBIE WOODEL IN THE
TESTIMONY OF DR. --
>> -- CONCERN IN THE WEIGHT
THAT SHOULD'VE BEEN GIVEN TO
THE MITIGATING EVIDENCE, OR
THIS A PROPORTIONALITY
ARGUMENT?
>> PROPORTIONALITY ARGUMENT,
ESSENTIALLY.
ALSO, HE WAS CHILD OF DEAF
PARENTS AND DR. D TALKED
ABOUT THE PROBLEMS THAT THAT
CAUSED ESSENTIALLY HIM,
MR. WOODEL NOT FITTING INTO
EITHER THE HEARING WORLD OR
THE DEAF WORLD.
AND THE PROBLEMS WITH
SOCIALIZATION IT CAUSED WHEN
HE WENT OUT ON HIS OWN.
ALSO, AGAIN, WE ARE
ATTACKING ONE OF THE
AGGRAVATING CIRCUMSTANCES AS
NOT BEING SUFFICIENT OR OR
NOT BEING ADEQUATELY PROVEN
AND THE COURT FOUND A NUMBER
OF STATUTORY AND
NONSTATUTORY MITIGATING
CIRCUMSTANCES.
I WON'T GOTHER TO GO THROUGH
THEM ALL.
THEY'RE IN THE RECORD FOFK
BUT -- OF COURSE BUT THE
COURT FOUND FOUR STATUTORY
MITIGATING CIRCUMSTANCES AS
WELL AS, WELL, A TOTAL OF 14
CIRCUMSTANCES STATUTORY AND
NONSTATUTORY ALTOGETHER.
AND JUST BRIEFLY TO MENTION
THE -- SOME OF THE CASES
THAT ARE CITED BY THE CASE
AND IT'S BRIEF WITH REGARD
TO THE SENTENCE AND WHETHER
IT WAS PROPORTIONAL OR NOT,
ALL OR MOST OF THE CASES
CITED BY THE STATE CAN BE
DISTINGUISHED IN MANY OF
THEM THE DEFENDANT HAD A
PRIOR CONVICTION FOR SOME
OTHER TYPE OF VIOLENCE OR
THE CRIMES WERE MORE
TORTUROUS TO THE VICTIMS
THAN THE CRIMES IN THIS
INSTANCE.
OR ELSE THE, THE MITIGATION
WAS WEAK -- MEEKER, WEAKER,
I'M SORRY THAN IT WAS IN
THIS.
SO MOST FW NOT ALL OF THE
CASES CITED BY THE STATE ON
THE PENALTY ASPECT CAN BE
DISTINGUISHED FROM THIS
CASE.
>> WHAT CASE WOULD YOU RELY
ON?
>> WELL, I HAVEN'T REALLY
BEEN ABLE TO FIND ANY THAT
WAS VERY CLOSE TO THIS ONE,.
ESSENTIALLY, OUR ARGUMENT IS
BASED ON THE, THE
CIRCUMSTANCES OF THIS CASE
AND THE, THE STRENGTH OF THE
MITIGATING EVIDENCE.
THANK YOU.
>> GOOD MORNING, YOUR
HONORS.
MAY IT PLEASE THE COURT I'M
CAROL DITTMAR FROM THE TOERJ'S
OFFICE REPRESENTING IT
APPELLEE IN THIS CASE, THE
STATE OF FLORIDA.
WITH REGARD TO THE FIRST
ISSUE ON THE EXCUSABLE OF
THE NOB -- EXCUSEAL OF THE
NON-ENGLISH-SPEAKING JURORS
IT IS AN INTEREST ISSUE BUT
UNFORTUNATELY IT WAS NOT
PRESERVED FOR APPELLATE
REVIEW UNDER ANY CLAIM.
THERE WAS NOIEST IF THE FOR
THE COURT TO TAKE ANY
ACTION.
THERE WAS NO RULING BY THE
TRIAL COURT BELOW.
I THINK THE ARGUMENT HAS
MORPH UNDER TO THIS WELL
MAYBE THE PROHIBITION
AGAINST AN INTERPRETER IN
THE JURY ROOM MAY RAISE SOME
CONSTITUTIONAL CONCERNS.
THAT ARGUMENT REALLY WAS
NEVER PRESENTED BELOW, AND
REALLY IS NOT PRESENTED IN
THE BRIEF.
THERE IS A SUGGESTION THAT
THAT THAT'S WHAT EVERYBODY
WAS UNHAPPY ABOUT HERE.
BUT THERE'S NO ACTUAL COURT
RULING FOR THIS COURT TO
EVEN CONSIDER.
THE TWO CLAIMS THAT HAVE
BEEN MADE, THE FAIR CROSS
SECTION CLAIM IS VERY WELL
DEVELOPED IN CASE LAW WHAT A
DEFENDANT MUST ESTABLISH TO
BE ABLE TO PROVE A VIOLATION
OF THE FAIR CROSS SECTION
REQUIREMENT.
FIRST OF ALL, THEY HAVE TO
IDENTIFY A DISTINCT CLASS,
WHICH HAVEN'T EVEN BEEN DONE
HERE.
I GUESS THE CLASS WOULD BE
PEOPLE WHO DO NOT SPEAK
ENGLISH WELL ENOUGH TO
PARTICIPATE IN DELIBERATIONS
WITHOUT AN INTERPRETER,
WHICH IS HARD TO WORK WITH
AS, AS AN ACTUAL DISTINCT
CLASS.
THEY ALSO HAVE TO
STATISTICALLY SHOW THAT
CLASS WAS UNDERREPRESENTED
IN THE VENEER, AND THAT'S
BASED ON SYSTEMIC
DISCRIMINATION IS A CAUSE OF
THAT UNDERREPRESENTATION.
WE HAVE TO HAVE THE
STATISTICS THAT SHOW HOW
COMMON THIS IS IN THE
COMMUNITY AND COMPARE IT --
>> ARE YOU ARGUING IN, IN A
PLACE LIKE MIAMI WHERE
EVERYBODY KNOWS THERE ARE
HISPANICS ARE A, IF NOT A
MAJORITY A VERY SUBSTANTIAL
MINORITY AND THE, ONE OF THE
-- THE STATE IS TRYING TO
EXCUSE FOR CAUSE OR A
HISPANIC JUROR AND THERE'S
NO HISPANIC JURORS LEFT IN
THE VENEER.
THE DEFENSE HAS TO PROVE,
HAS TO COME IN AND SHOW HERE
ARE THE STATISTICS FOR THE
NUMBER OF HISPANICS IN DADE
COUNTY AND THE VENEER IS NOW
UNDERREPRESENTED.
>> YES FOR A -- THIS COURT
HAS LOOKED AT I KNOW IN THE
GORDON CASE YOU LOOKED AT T.
OBVIOUSLY THE DUREN CASE OUT
OF THE U.S. SUPREME COURT
SAYS THAT'S HOW YOU MAKE A
FAIR CROSS SECTION CLAIM.
YOU GO TO YOUR TRIAL COURT
AND YOU SAY HERE ARE ALL OF
OUR STATISTICS.
THIS IS OUR COMMUNITY.
THIS IS HOW MUCH THE
DISTINCT CLASS IS PRESENT IN
THE COMMUNITY.
THIS IS THE AVERAGE VENEER
AND HOW THEY ARE
UNDERREPRESENTED IN WHAT THE
FEDERAL CASES SAY GENERALLY
YOU HAVE TO HAVE AT LEAST A
10% DISPARITY IN
REPRESENTATION TO EVEN MAKE
A PRIMA FACIE CASE SO IT IS
A VERY, A STATISTICALLY
ORIENTED TYPE OF ARGUMENT
AND OBVIOUSLY WE DON'T HAVE
ANY FACTS IN THIS RECORD TO
EVEN DEVELOP THE CLAIM.
>> THAT WOULD BE DIFFERENT
THAN A SITUATION WHERE ALL
HISPANICS THAT WERE CALLED
HAD TO, IN THIS PARTICULAR
TRIAL, HAD SOME DIFFICULTY
UNDERSTANDING ENGLISH, AND
AT THAT POINT, THEN YOU'D
HAVE TO LOOK AT IF THE
PROSECUTOR STRUCK ALL THOSE
JURORS.
NOT FOR CAUSE BECAUSE
THERE'S NO CAUSE PROVISION.
BUT PREEMPTRARILY WHETHER
UNDER HERNANDEZ THAT WOULD
BE, AND YOU ENDED UP WITH NO
HISPANICS ON THE JURY
ALTHOUGH OF COURSE THE
ASSUMPTION THAT EVERYBODY --
YOU KNOW, THERE WAS
OBVIOUSLY FLUENT IN ENGLISH
WOULD THAT BE A DIFFERENT
CLAIM?
THAT WOULD BE A SYSTEMIC
EXCLUSION OF A CLASS AND A
QUESTION OF WHETHER IT'S
APPROPRIATE UNDER THE -- IS
THAT A DIFFERENT ISSUE?
>> YES, THE EQUAL PROTECTION
IS A COMPLETELY DIFFERENT
ISSUE FROM THE FAIR CROSS
SECTION.
>> OKAY.
SO YOU DON'T THINK -- NOW
WERE THEY RAISING, DO YOU
NOT SEE THEM AS RAISING BOTH
OR IS, THEY WERE ONLY
RAISING FAIR CROSS SECTION?
>> THEY USED THE WORDS FAIR
CROSS SECTION IN THE, IN THE
ACTUAL COMMENT TO THE COURT.
ALTHOUGH AGAIN IT'S REALLY
NOT EVEN AN OBJECTION.
THE ACTUAL COMMENT THAT WAS
MADE, AND THIS WAS AFTER THE
JURY, AFTER THE DEFENSE HAS
ACCEPTED THE JURY, THE STATE
HAS ACCEPTED THE JURY, THE
COURT SAYS, OKAY, YOU KNOW,
AND, AND STARTS TO GO ON AND
DEFENSE COUNSEL SAYS THE
ONLY OBJECTION I WOULD LIKE
TO RENEW IS I JUST WANTED TO
RENEW ONE OBJECTION.
IT HAD TO DO WITH THE
NECESSITY OF HAVING TO
ELIMINATE HISPANIC JURORS
BECAUSE OF THE, I DON'T KNOW,
EVEN WHAT YOU CALL IT, BUT
THE PROBLEM THAT WE CAN HAVE
AN INTERPRETER FOR JURY
SELECTION BUT WE CAN'T HAVE
THEM FOR JURY DELIBERATION,
WHICH MAKES NO SENSE.
>> I THINK THAT'S, IS, HE'S
PUT -- I MEAN THE PROBLEM
WAS YOU HAD THE FOURTH
DISTRICT CASE OUT THERE.
>> RIGHT.
>> THAT SAYS YOU CAN'T BRING
--
>> YOU CAN'T DO THAT.
>> SO YOU ESSENTIALLY, WHAT
THE JUDGE AND THE PROS-- AND
THE DEFENSE LAWYER REALIZED
IS THAT THEY HAVE THIS CASE
THERE BUT IT SEEMS TO ME
THAT THEY DID PRESERVE THE
ARGUMENT THAT IS
UNCONSTITUTIONAL TO NOT HAVE
AN INTERPRETER IN THE JURY
ROOM BECAUSE THAT'S THE ONLY
WAY THAT YOU'RE GOING TO BE
ABLE TO PRESERVE THE RIGHT
OF NONFLUENT JURORS, WHETHER
THEY'RE HISPANIC, HAITIAN,
ANY, YOU KNOW, FROM BEING
ABLE TO SIT ON A JURY JUST
LIKE WE DO FOR HEARING
IMPAIRED SITUATIONS.
>> WELL, IF HE'S CHALLENGING
THE FACIAL VALIDITY OF THE
STATUTE, THEN AT SOME POINT
SOMEBODY SHOULD'VE SAID,
YOUR HONOR, THE STATUTE'S
UNCONSTITUTIONAL.
THAT SHOULD'VE BEEN THE
CLAIM.
>> WHAT STATUTE'S THAT?
>> WELL, THE STATUTE THAT --
THERE'S A STATUTE THAT
PERMITS AN INTERPRETER FOR
DEAF SPEAKING --
>> IT DOESN'T -- THERE'S NO
STATUTE THAT SAYS THERE
SHALL NOT BE AN INTERPRETER
FOR NON-ENGLISH SPEAKER.
>> NO, IT'S NOT WRITTEN IN
THE NEGATIVE.
>> IN FACT, UNLIKE THE
FEDERAL STATUTE HAS BEEN
POINTED OUT, WE HAVE NO
REQUIREMENT THAT THE JUROR
BE PROFICIENT IN ENGLISH IN
ORDER TO SERVE.
>> THAT'S CORRECT.
THAT'S NOT WIN AS -- WRITTEN
AS A STATUTORY
DISQUALNICATION.
>> I GUESS THE COMPLICATING
FACTOR, THE WAY THAT THIS
COMES TO US IS IS THIS A
CHALLENGE FOR CAUSE?
WAS THIS JUROR REMOVED FOR
CAUSE?
>> WELL, AND, YOU KNOW, THE
JUDGE DOESN'T USE THE WORDS
FOR CAUSE.
THE JUDGE BASICALLY, WITH
THE FIRST, WHEN THE FIRST
JUROR COMES UP AND IT, AND
IT'S AN ISSUE WITH THE FIRST
JUROR, THEY CAN'T EVEN TALK
TO THE JUROR TO BE ABLE TO
KNOW WHAT'S GOING ON.
AND FORTUNATELY, THE DEFENSE
ATTORNEY SPOKE SPANISH, NOT
TO THIS, NOT WHEN IT FIRST
HAPPENED, BUT TO THE SECOND
JUROR.
THE DEFENSE ATTORNEY WAS
ABLE TO ASK DO YOU SPEAK
WELL ENOUGH TO BE ABLE TO
PARTICIPATE?
IF WE HAD AN INTERPRETER
THROUGH THE TRIAL, COULD YOU
GO INTO DELIBERATIONS
WITHOUT AN INTERPRETER, AND
THE JUROR SAID NO, THEY
COULDN'T DO THAT.
>> WELL THE PROBLEM --
>> SO THE JUDGE DISMISSES
THE JURORS AND SENDS THEM
HOME.
SHE DOESN'T SAY, YOU KNOW,
I'M EXERCISE AGCAUSE
CHALLENGE.
THEY DON'T REALLY PUT IT IN
THOSE TERMS.
WHAT THEY SAY IS WE CAN'T
REALLY ACCOMMODATE YOU.
>> AND THE PROBLEM OF COURSE
IS WRITING AN OPINION OUT OF
THIS COURT.
AS TO WHAT THE NATURE OF
THIS OBJECTION WAS.
OR WHETHER THERE WAS AN
OBJECTION.
BUT IF WE ASSUME THERE WAS,
THERE ARE ONLY TWO KINDS OF
WAYS TO REMOVE PROSPECTIVE
JURORS.
ONES EITHER PEREMPTORILY AND
THE OTHER IS FOR CAUSE AND
THE STATUTE THAT PROVIDES
THAT YOU REMOVE SOMEONE FOR
CAUSE --
>> WELL, I THINK --
>> -- -- THE BASIS.
>> WELL A TRIAL JUDGE HAS
INHERENT AUTHORITY TO MAKE
DETERMINATION PHYSICAL
SOMEONE JUST HAS A
PARTICULAR HARDSHIP THAT
MAYBE ISN'T REFLECTED TO, TO
TAKE THAT INTO ACCOUNT.
AND CERTAINLY THERE, THERE'S
A LOT OF THINGS DISCUSSED
PRELIMMINARILY THAT A TRIAL
COURT MAY DECIDE THIS PERSON
DOESN'T WANT TO SERVE ON THE
JURY AND HAS A REASON NOT TO
BE REQUIRED TO SERVE ON THE
JURY.
AND THAT REALLY HASN'T BEEN
PRESENTED AS, AS A PROBLEM
IN THIS CASE.
THE, YOU KNOW, WHAT HAPPENED
IS THEY WERE, THEY WERE SENT
ON THEIR WAY.
AND THERE WASN'T, THERE
WASN'T, THERE WASN'T A
REQUEST BY THE DEFENSE THAT,
WAIT, WE NEED TO ASK THESE
PEOPLE MORE QUESTIONS.
WE NEED TO TRY TO BRING THEM
IN.
WE NEED TO GET AN
INTERPRETER.
NONE OF THOSE REQUESTS FOR
ANY KINDS KIND OF EFRTSS
WERE MADE SO THE TRIAL JUDGE
DIDN'T REALLY HAVE ANY WAY
TO FIX THE SITUATION.
>> AND THIS WAS NOT A
CHALLENGE FOR CAUSE BY THE
STATE?
>> NO.
IT WAS NOT A CHALLENGE FOR
CAUSE BY THE STATE.
SOMETHING THAT CAME
INDEPENDENTLY TO THE
ATTENTION OF THE TRIAL JUDGE
AND SO SHE WAS JUST TAKING
IT, AND THEN I GUESS THE
SECOND JUROR APPARENTLY
APPROACHED SOMEHOW, SOME
JUROR SERVICES PERSON OR
SOMEBODY, ONE OF THE COURT
STAFF, AND --.
>> SO WHAT HAPPENS -- UNDER
WHAT AUTHORITY DOES A JUDGE
EXCUSE JURORS FROM SERVING
ON A JURY BECAUSE THEY MAY
HAVE A, A, A PARENT THAT
THEY HAVE TO TAKE CARE OF ON
A FULL-TIME BASIS OR SOME
OTHER HARDSHIP THEY CAN'T
GET OUT OF WORK BECAUSE IT'S
THEIR LIVELIHOOD.
THOSE KINDS OF THINGS.
IS THAT A STATUTE OR IS THAT
JUST THE JUDGE'S INHERENT
AUTHORITY.
>> I THINK THE JUDGE JUST
HAS INHERENT AUTHORITY TO
MAKE SOME DECISIONS THAT ARE
NECESSARY FOR THE INTEGRITY
OF THE TRIAL, TO PROTECT THE
JURY PROCESS, AND I THINK
THIS IS PART AND PARCEL OF
ALL OF THAT.
I DON'T THINK THE STATUTE IS
INTENDED TO BE ENTIRELY
COMPREHENSIVE WITH, WITH
REGARD TO THERE MAY BE OTHER
THINGS COME UP AND YOU HAVE
TO GIVE A TRIAL COURT
DISCRETION TO DEAL WITH
THINGS AS THEY COME UP.
>> WELL THE STATUTE SPEAKS
ABOUT CHALLENGE FOR CAUSE,
WHICH I INFER TO MEAN A
PARTY CHALLENGING A JUROR
FOR CAUSE.
AS OPPOSED TO A JUDGE
EXERCISING INHERENT
AUTHORITY DUE TO THE
HARDSHIPS OF SERVING ON THE
JURY.
>> AND IF REALLY, YOU KNOW,
AS THIM CAME UP, IT WASN'T A
PARTICULAR CHALLENGE, IT WAS
JUST SOMETHING THAT THE
TRIAL COURT WAS DEALING WITH
ON HER OWN, BUT I THINK
TRIAL COURTS HAVE THAT
DISCRETION AND THEN IN FACT
THIS COURT IN THE KUTZ CASE
KIND OF CONSIDERED THE
FLIPSIDE OF IT BECAUSE IN
COOK YOU HAD A TRIAL JUDGE
WHO MADE A DETERMINATION
THAT JURORS COULD ACTUALLY
SPOKE ENGLISH WELL ENOUGH TO
SERVE ON THE JUROR AND IN
THAT CASE THE DEFENSE HAD
REQUEST ADCAUSE CHALLENGE
AND WHEN THAT WAS DENIED
AFTER THE THE TRIAL COURT
MADE THIS DETERMINATION THAT
THESE JURORS COULD SIT, THAT
WAS DENIED, AND THE DEFENSE
HAD TO EXECUTION THEM
PREEMPTATORILY AND WHEN THE
ISSUE CAME UP TO THIS COURT
THE ARGUMENT WAS THE TRIAL
JUDGE SHOULD'VE EXECUTIONED
THEM FOR CAUSE AND THIS
COURT SAID NO, YOU KNOW, THE
COURT CONDUCT ADPROPERLY
INQUIRY AND MADE A
DETERMINATION, MADE A
FACTUAL FINDING THAT THEY
HAD THE ABILITY TO SERVE AND
COULD SIT AS JURORS, AND I
THINK YOU READ INTO THAT, IF
THE COURT HAD COME TO THE
OPPOSITE CONCLUSION,
CERTAINLY THE CAUSE
CHALLENGE SHOULD'VE BEEN
GRANTED.
>> WELL, IT SOUNDS TO ME
LIKE WE HAVE SOME PROBLEM IN
THE MAKING HERE; AND WHETHER
WE RESOLVE IT, YOU KNOW, IN
THE -- IN THIS CASE, BECAUSE,
YOU KNOW, IF THE LAW REMAINS
THAT AN INTERPRETER CAN'T GO
BACK INTO THE JURY ROOM FOR
SOMEONE WHO IS
NON-ENGLISH-SPEAKING THEN
THAT IS THE SAME POINT, IT
SHOULD -- IT WOULD BE THE
SAME ISSUE FOR A DEAF
PERSONING A HEARING IMPAIRED
PERSON AND IT LOOKS LIKE
THAT'S ALREADY BEEN PROVIDED
FOR.
SO AT THIS POINT ATRIAL
JUDGE WOULD HAVE SNOW OPTION
BUT TO EXECUTION -- WOULD
HAVE NO OPTION BUT TO EXCUSE
THAT JUROR BECAUSE THE LAW
OUT THERE SAYS THAT, THE
INTERPRETER CAN'T COME BACK
IN THE JURY ROOM.
SO HOW WOULD -- IF YOU WERE
LOOKING AT THIS
PROSPECTIVELY, AND THIS IS
GOING TO COME UP ALL THE
TIME, HOW WOULD YOU RESOLVE
IT.
>> WELL, I THINK IT'S A
POLICY DETERMINATION THAT
YOU CAN HAVE THE -- ASK THE
LEGISLATURER TO MAKE IF YOU
WANT SOMEBODY, IF YOU WANT
THEM TO AMEND THEIR STATUTE
ON DISQUALIFICATION SO IT'S
AS THE FEDERAL STATUTE DOES,
TAKES THIS INTO ACCOUNT THAT
MAYBE ONE WAY TO RESOLVE THE
ISSUE.
>> IN OTHER WORDS, NOT --
YOU WOULD SAY THAT NOT EVEN
ALLOW -- REQUIRE -- HAVE
PROFICIENCY IN ENGLISH AS A
REQUIREMENT.
>> I THINK THAT'S CERTAINLY
SOMETHING YOU CAN DO.
IT'S WHAT THE FEDERALS HAVE
DONE AND I THINK ALSO
RECOGNIZING THE TRIAL COURT
HAS SOME DISCRETION TO BE
ABLE TO MAKE THESE
DETERMINATIONS.
>> HAVE YOU UNCOVERED A CASE
IN WHICH THE APPELLATE
COURTS HAVE DEALT WITH THIS
STATUTE ON DEAFNESS AND THE
DEAF?
>> NO, I HAVE NOT.
>> OTHER THAN I, YOU KNOW,
OBVIOUSLY IT WAS
DISCUSSEDDED HERE.
THE, THE OTHER CASE, THERE'S
THE FOURTH DISTRICT CASE
THAT YOU'RE AWARE OF.
THERE'S ALSO A SECOND
DISTRICT CASE, WHICH IS VERY
SIMILAR MORALES, WHICH IS
VERY SIMILAR TO WHAT
HAPPENED IN THIS CASE, WHERE
THE SECOND DISTRICT SAID,
WELL, YOU KNOW, WE
UNDERSTAND UNDER THE FOURTH
DISTRICT THE JUDGE'S HANDS
WERE TIED IN THE SAME SOURCE
OF -- SORT OF THING THAT YOU
HAD POTENTIAL JURORS WHO
WERE EXCUSED AND I DON'T
KNOW IF THEY USED THE CAUSE
LANGUAGE OR, OR HOW IT WAS,
BUT THE SECOND DISTRICT
UPHELD THE TRIAL JUDGE'S
ACTIONS IN THAT CASE AND,
AND THIS IS THE SAME
SCENARIO.
>> YOU KNOW, IT STRIKES ME,
AGAIN, AND THAT'S GOING TO
BE SOMETHING THAT AGAIN
COMING UP BECAUSE YOU KNOW A,
ALTHOUGH THERE, WE'VE
CERTAINLY NOW HAVE RECENT
ISSUES ABOUT ATTORNEYS
APPEARING IN COURT, THE
WHOLE ISSUE OF EVALUATING
THE CREDIBILITY OF A WITNESS
BASED ON THE WAY THEY SPEAK
IS REALLY ELIMINATED IF
SOMEBODY IS HEARING IMPAIRED
OR IF YOU'RE HEARING A
CONFESSION.
AND SO I DON'T KNOW HOW THAT
IS ACTUALLY WORKING OUT ON
THE DAY-TO-DAY BASIS.
AND WHETHER THERE'S A
DISTINCTION BETWEEN SOMEONE
HEARING IMPAIRED OR SEEING
IMPAIRED AND VERSUSES, YOU
KNOW, OTHER, OTHER
DISABILITIES.
>> AND OBVIOUSLY, WE DON'T
REALLY HAVE THE RECORD
DEVELOPED IN THIS CASE TO,
TO REALLY FLUSH THAT OUT AND,
OR TO BE ABLE TO MAKE A, A
REASONABLE JUDGMENT ABOUT
THE WAY IT SHOULD BE HANDLED,
SO.
>> YOU'RE GOING TO TOUCH ON
THE OTHER ISSUES?
>> YES, I AM.
THE SECOND ISSUE WITH REGARD
TO, THE INMATE, MR. WHITE,
THERE WAS NO OBJECTION TO
HIS TESTIMONY TO HIS COMMENT
THAT, THAT WOODEL ADMITTED
TO FONDLING THE DEFENDANT --
I'M SORRY, THE VICTIM, AND I
REALLY THINK THAT THERE
COULD BE A STRATEGIC REASON.
I THINK YOU HAVE TO BE
CAREFUL ABOUT FUNDAMENTAL
ERROR, ESPECIALLY WHEN THERE
COULD BE A GOOD REASON FOR
THE DEFENSE ATTORNEY NOT
OBJECTING.
YOU HAVE A CRIME SCENE WITH
A NUDE WOMAN WHERE HER NIGHT
CLOTHES HAVE BEEN RIPPED OFF
HER, HER UNDERWEAR IS CUT
OFF AND TIE UNDER TO A KNOT
AND I THINK THE DEFENSE
ATTORNEY MAY WELL HAVE BEEN
THINKING AND THE JURY MAY
SPECULATE SOMETHING MUCH
WORSE HAS HAPPENED AND IF
THEY HEAR THIS IS THE WORST
THING THAT HAPPENED, THAT
MAY NOT BE SO, SO DAMAGING
TO THE DEFENSE.
BUT AT ANY RATE, FOR
WHATEVER REASON, THERE IS NO
OBJECTION.
THE COMMENT WAS, WAS A BRIEF
COMMENT THAT IN, IN THE
NARRATIVE OF DESCRIBING
EVERYTHING THAT WOODEL HAD
ADMITTED TO MR. WHITE --
>> THE STATE NEVER
EMPHASIZED THAT?
>> THE STATE DID NOT
EMPHASIZE IT IN CLOSING
ARGUMENT.
IT WAS NOT -- YOU KNOW, WE
SAID, I THINK IT'S CLEARLY
RELEVANT TO HEINOUS,
ATROCIOUS, AND CRUEL BECAUSE
I THINK IT'S PART OF THE
PAIN AND THE TERROR THAT WAS
SUFFERED BY THE VICTIM SO I
THINK IT IS PROPERLY
CONSIDERED.
I THINK IT'S RELEVANT FOR
THAT PURPOSE.
I ALSO THINK ITS RELEVANT TO
INTERPRET MANY OF THE
DEFENDANT'S STATEMENTS,
WHICH THEY HEARD NOT ONLY
FROM HIS CONFESSION, HIS
STATEMENTS TO DR. D.
HE ALSO TESTIFIED, AND HE
TESTIFIED THAT HE REMEMBERED
TAKING HER CLOTHES OFF AND
HE COULDN'T REMEMBER WHY.
AND I THINK THAT HELPS FOCUS
A LOT OF HIS STATEMENTS WITH
THE JURY OTHERWISE HEARD.
>> DID THE TRIAL JUDGE USE
AT ALL IN THE SENTENCING
ORDER?
>> NO, I DON'T BELIEVE SO,
JUST REALLY FOCUSING,
OBVIOUSLY WE HAD MULTIPLE
STAB WOUNDS, REPEATED
ATTACKS, VERY BRUTAL ATTACK,
AND IT WAS JUST, IT WAS PART
OF THE CIRCUMSTANCES OF THE
CRIME.
IT CERTAINLY --
>> YOU WOULD ARGUE THAT IT'S
NOT ERROR AND IT'S CERTAINLY
NOT FUNDAMENTAL ERROR?
>> THAT'S CORRECT, YOUR
HONOR.
AND I THINK THAT CERTAINLY
THIS IS SOMETHING THAT THE
JURORS MAY HAVE REACHED THIS
CONCLUSION ANYWAY BASED ON,
ON JUST THE CRIME SCENE.
BASED ON WHAT THEY KNEW
ABOUT THE CRIME SCENE.
SO IT'S REALLY NOT DAMAGING.
IT CERTAINLY DOESN'T VITIATE
THE FAIRNESS OF THE TRIAL OR
GO TO THE HEART OF THE
PROCEEDINGS T. WASN'T
ANYTHING SURPRISING.
MR. WHITE HAD MADE THE SAME
TESTIMONY IN THE FIRST, IN
THE FIRST TRIAL.
SO IT WASN'T ANYTHING THAT
CAUGHT THE DEFENSE OFF GUARD
OR, OR THAT THEY WEREN'T
EXPECTING AND THEY COULD'VE
OBJECTED.
>> ON THE ISSUE OF THIS AGE
VULNERABILITY, AND I THINK
AS I GET OLDER I'M SENSITIVE
TO WHAT ADVANCED AGE OR NOT,
--
>> YOU'RE NOT THERE YET.
>> IT'S PARTICULARLY
VULNERABLE.
AND SO AGE ALONE -- AND I
KNOW WE PROBABLY ALREADY
TOUCHOND IT BUT AS I LOOKED
AT IT, SHE'S 74 AND SHE
REALLY WAS DOING WELL AND
NOT, HOW WAS SHE
PARTICULARLY VULNERABLE TO,
TO ADVANCE AGE OR
DISABILITY?
>> WELL, SHE DID OBVIOUSLY
HAVE THE INJURY TO THE ARM
AND I HAVE TO DISAGREE WITH
MR. MOELLER ABOUT THE
STRENGTH OF THAT TESTIMONY
AT THE RESENTENCING.
SHE HAD VERY LIMITED
MOBILITY IN THAT ARM, AND IF
YOU, YOU KNOW, LOOK AT THE
MEDICAL EXAMINERSER' TESTIFY,
MOST OF HER DEFENSIVE WOUNDS
ARE IN HER OTHER ARM.
SHE IS USING HER OTHER ARM
TO FIGHT THEM OFF AND SHE
DID NOT HAVE THE USE OF HER
DAMAGED ARM.
THAT WAS VERY
WELL-ESTABLISHED.
THE TESTIMONY WAS VERY
SIMILAR ON THIS ISSUE,
SIMILAR TO WHAT YOU
CONSIDERED THE FIRST TIME
AROUND IN SUPPORTING THE
FINDINGS THE TRIAL COURT HAD
MADE.
IN FACT, WHEN THEY WERE
HAVING THE CHARGE CONFERENCE
AND THIS INSTRUCTION WAS
BEING DISCUSSED AND THE
DEFENSE WAS OBJECTING SAYING
THE EVIDENCE WASN'T
SUFFICIENT, JUDGE ROBERTS
HAD THIS COURT'S OPINION
FROM THE FIRST TRIAL AND
LOOKED AT THE FACTORS THAT
THIS COURT DISCUSSED AND
SAID, WELL, YOU KNOW, THEY
TALK HERE ABOUT THE
DISPARATE AGES.
DO YOU DISPUTE THAT?
NO, THE DEFENSE DIDN'T
DISPUTE THAT.
WELL, THEY TALK ABOUT THE
DAMAGE TO THE ARM?
YOU KNOW, DO YOU DISPUTE
THAT?
NO, WE DON'T DISPUTE THAT SO
SHE ACTUALLY AT THE CHARGE
CONFERENCE WENT THROUGH THE
FACTS AS THEY WERE DISCUSSED
BY THIS COURT IN UPHOLDING
THAT FACTOR LAST TIME AROUND
AND THE DEFENSE COULD NOT
CONTEST THAT ALL OF THOSE
HAD BEEN PROVEN AGAIN AT THE
RESENTENCING, THAT THERE WAS
INDEPENDENT EVIDENCE
ADMITTED BELOW AND VERY
SIMILAR TO THE TESTIMONY
THAT THIS COURT CONSIDERED
THE FIRST TIME AROUND WHEN
IN SUPPORTING THAT FACTOR.
SO I THINK WE DO HAVE PRETTY
MUCH THE SAME AND CERTAINLY
WE HAVE THE COMPETENCE
SUBSTANTIAL -- COMPETENT
SUBSTANTIAL EVIDENCE THAT
THIS COURT NOTED LAST TIME
IN UPHOLDING THE FACTOR.
I THINK THE RESULT NEEDS TO
BE THE SAME THIS TIME
AROUND.
REALLY THAT'S A QUESTION FOR
THE TRIER OF FACT AND ALL
THIS COURT WILL DO IS REVIEW
FOR SUBSTANTIAL COMPETENT
EVIDENCE AND BECAUSE WE HAVE
THAT EVIDENCE IN THIS RECORD,
THERE'S NO BASIS TO
INTERFERE WITH FINDING THAT
FACTOR.
>> ON PROPORTIONALITY, I
THINK THE DEFENSE IS VERY
CANDID ABOUT NOT BEING ABLE
TO FIND A FACTUALLY SIMILAR
CASE.
THIS COURT HAS NEVER
REVERSED TO MY KNOWLEDGE
THAT I COULD FIND A DOUBLE
MURDER OF AN ELDERLY,
ELDERLY COUPLE.
WHILE THEY WEREN'T IN THEIR
HOME.
THEY WERE CERTAINLY IN A
HOME THAT THEY OWNED
PREPARING IT, GETTING READY
ON THOSE WHEN YOU HAVE SUCH
A BRUTAL AND EXTENDED
ATTACK.
THIS WASN'T SOMETHING THAT
WAS QUICK.
IT WAS A VERY, THERE WERE
REPEATED, REPEATED ACTS OF
AGGRESSION TOWARDS
ESPECIALLY MRS. MOODY AND
ALSO MR. MOODY AND THEN HE
WOULD GO BACK AND CLEAN THE
KNIFE OFF IN THE SINK AND
THEN, YOU KNOW, STILL, STOP
ON THE WAY OUT SO IT WAS AN
EXTENDED ATTACK.
VERY BRUTAL.
AND REALLY NO SIGNIFICANT
MITIGATION THAT YOU CAN
WEIGH AGAINST IT.
THE TRIAL JUDGE DID GIVE
WEIGHT, SOME WEIGHT TO
STATUTORY MITIGATION,
INCLUDING THE SUBSTANTIAL
IMPAIRMENT.
SHE BASED THAT ON THE FACT
THAT HE HAD BEEN DRINKING
ALTHOUGH DR. D TESTIFIED IN
THIS CASE CASE,, DR. D'S
TESTIMONY WAS NOT USED AS A
BASIS TO SUPPORT EITHER OF
THE MENTAL MITIGATORS.
HE DID NOT FIND SUBSTANTIAL
IMPAIRMENT OR EXTREME
DISTURBANCE.
HE WASN'T EVEN ASKED ABOUT
IT.
THE JUDGE CONCLUDES THERE
WAS EXTREME DISTURBANCE
BASED ON MR. WOODEL'S
TESTIMONY THAT HE WAS LONELY,
THAT HE LIKED BEING AROUND
PEOPLE, THAT THE BEST HE
COULD DO TO TRY AND EXPLAIN
WHY THIS HAD HAPPENED WAS
BECAUSE HIS GIRLFRIEND THAT
HE LIVED WITH, HIS SISTER
THAT HE LIVED WITH WERE BOTH
OUT OF TOWN.
HE WAS GOING HOME TO AN
EMPTY TRAILER AND HE LIKED
BEING AROUND PEOPLE AND, AND
HE WAS MAD THAT NOBODY WAS
HOME THAT NIGHT.
AND, YOU KNOW, THAT'S THE
TESTIMONY THAT, THAT
SUPPORTS THE, THE MITIGATOR
THAT WAS FOUND FOR EXTREME
DISTURBANCE.
SO IT'S NOT LIKE A CASE
WHERE YOU REALLY HAVE
SOMEONE WHO HAS A MEANTAL
ILLNESS AMENTAL DISERED
ORDER, SOME EXTREME MENTAL
OR EMOTIONAL DISTURBANCE
THAT A MENTAL HEALTH EXPERT
PUTS IN CONTEXT SO YOU
REALLY DON'T HAVE ANY
SUBSTANTIAL MITIGATION HERE.
CERTAINLY MR. WOODEL HAD A
DIFFICULT CHILDHOOD AS A LOT
OF PEOPLE DO.
THERE'S REALLY NOTHING,
NOTHING ABOUT IT THAT, THAT
IS MORE COMPELLING THAN MANY
OTHER CASES WHERE THIS COURT
HAS UPHELD THE DEATH
PENALTY.
SO IF YOUR HONORS HAVE NO
FURTHER QUESTIONS I WOULD
ASK YOU TO AFFIRM THE DEATH
SENTENCE IMPOSED.
THANK YOU.
>> YOU'VE USED YOUR TIME BUT
I WILL GIVE YOU TWO MINUTES
FOR A VERY SHORT REBUTTAL.
>> I JUST WANTED TO CALL THE
COURT'S ATTENTION TO THE
PARTS OF THE RECORD WHERE
DEFENSE COUNSEL OBJECTED TO
THE EXCLUSION OF THE SPANISH
SPEAKING JURORS IN QUESTION.
FIRST OBJECTION AFTER THE
SECOND JURD JUROR
MR. CASANOVA WAS EXCUSED.
THIS CAN BE FOUND IN VOLUME
8, PAGES 993 THROUGH 994.
WHERE DEFENSE COUNSEL IS
SAYING THAT HIS OBJECTION IS
A CONSTITUTIONAL OBJECTION.
HE SAYS THIS IS NOW THE
SECOND JUROR OF HISPANIC
DEFENSE THAT WE HAVE LOST
BECAUSE OF THE LANGUAGE
BARRIER AND BASED OFRNT LAW
THAT AN INTRP RRER IS NOT
ALLOWED IN THE JURY
DELIBERATION ROOM THEN HE
MAKE AS VERY SIMILAR
OBJECTION WHEN THE JURY IS
ACTUALLY BEING, THE JURY
SELECTION IS BEING FINALIZED
IN VOLUME 9.
PAGE, PAGES 1158 THROUGH
1159.
SO I JUST WANT TO CALL THE
COURT'S ATTENTION TO WHERE
THE OBJECTIONS WERE MADE.
THANK YOU.
>> THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL STAND IN
RECESS UNTIL 9:00 TOMORROW
MORNING.
>> ALL RISE