Paul H. Evans v. State of Florida

SC05-1671 | SC07-494

THE NEXT CASE IN OUR CALENDAR
THIS MORNING EVANS VERSUS THE
STATEMENT
>>> THE NEXT
CASE ON CALENDAR THIS
MORNING IS EVANS VERSUS
STATE.
>> [INAUDIBLE]
GOOD MORNING.
MAY IT PLEASE
THE COURT.
SUZANNE KEFFER ON
BEHALF OF THE APPELLANT
PAUL EVANS.
WE ARE
HERE TODAY AFTER A --
>> WOULD YOU PULL YOUR MICROPHONE
UP JUST A LITTLE BIT,
PLEASE, MA'AM.
>> SURE.
>> THAT WOULD HELP US.
>> IS THAT BETTER?
>> YES.
>> WE ARE HERE TODAY ON
MR. EVANS' APPEAL FIRST
CONVICTION MOWING AFTER AN
EVIDENTIARY HEARING IN
CIRCUIT COURT.
I WOULD LIKE
TO FOCUS BRIEFLY ON THE
ISSUE OF COUNSEL'S
INEFFECTIVENESS FAILING TO
CHALLENGE A BIASED JUROR
WHO DID IN FACT SIT ON THE
JURY, AND THEN BECAUSE I DO
FEEL STRONGLY ABOUT THE
INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO
PRESENT EVIDENCE AND
WITNESSES AT THE GUILT PHASE
I'D LIKE TO MOVE INTO THAT.
WITH RESPECT TO THE BIASED
JUROR THAT SAT ON MR. EVANS'
JURY DURING OR VOIR DIRE
COUNSEL HAD ASKED WHETHER ANYBODY
WOULD VOTE FOR THE DEATH PENALTY,
THE JUROR RAISED HER HAND.
>> IS THAT --
>> I BELIEVE IN THE BRIEF --
I WANT TO TO SAY IT IS FOUR.
INEFFECTIVE ASSISTANCE
OF COUNSEL, VOIR DIRE JUROR
SCHUMANN RAISED HER HAND AND
ASKED DID THAT INCLUDE
SELF-DEFENSE.
AFTER SOME EXPLANATION OF WHAT
THE LAW IS IN THE PENALTY PHASE,
WHAT THE JUDGE'S
INSTRUCTIONS WOULD BE, JUROR
SCHUMANN, WHILE SHE SAID "I
WOULD CONSIDER THE LAW," SHE
QUALIFIED THAT BY SAYING
VERY SPECIFICALLY "BUT I WOULD
STILL LEAN TOWARDS DEATH."
ULTIMATELY WHEN COUNSEL
FINALLY ASKED HER, "ARE YOU
TELLING ME THE ONLY
SITUATION IN WHICH YOU WOULD
NOT VOTE FOR THE DEATH
PENALTY IS SELF-DEFENSE?" SHE
SAID, "YES."
INDICATING --
>> THERE ARE OTHER FACTORS THAT
WE HAVE HAD, FACTORS WE HAVE
LOOKED AT FROM A STRATEGY
STANDPOINT, AS COUNSEL THERE
ASKING QUESTIONS, LISTENING
TO RESPONSES, AND THIS
JURY ALSO HAD SOME PAST
BACKGROUND THAT TRIAL
ATTORNEY MAY KEY INTO AND
SAY, YOU KNOW, THIS JUROR EVEN
THOUGH SHE SAYS THAT MAY
REALLY BE A GOOD JUROR FOR
THE DEFENDANT BECAUSE OF
PAST EXPERIENCES --
>> YES, THE -- BELOW IS THAT IN
HIS RATING SYSTEM, HE
GAVE HER FIVE
PLUSES, HER BROTHER-IN-LAW
HAD BEEN I BELIEVE,
CONVICTED OF A CRIME, THAT
SHE HAD HAD AN ASSAULT IN
HER HOME AND WASN'T HAPPY
WITH POLICE TREATMENT OF THE
SITUATION.
SHE HAD ALSO HEARD, READ AN
ARTICLE ABOUT THE
CO-DEFENDANT THE VICTIM'S
WIFE HAVING RECEIVED
INSURANCE MONEY, FELT THIS
WAS FAVORABLE, BUT I THINK
THAT WHAT NEEDS TO BE
CONSIDERED BY THIS COURT
IS THE FACT THAT TRIAL
COUNSEL DID NOT CONSIDER
THAT SHE WOULD AUTOMATICALLY
VOTE FOR DEATH IN THE
PENALTY PHASE, IN FACT IS
THIS A CAPITAL CASE WHEN
A TRIAL ATTORNEY IS
PREPARING, AND CONDUCTING
VOIR DIRE, BOTH PHASES MUST
BE CONSIDERED.
>> WHERE DOES THE BALANCING
COME IN?
WHERE DO WE START DRAWING
THE LINE THAT AS A MATTER OF
THE LAW BECAUSE WE HAVE THE
EVIDENCE, AND WE HAVE THE
INFERENCES TO BE TAKEN FROM
THE EVIDENCE WHAT CROSSES
THIS OVER?
>> AS A MATTER
OF LAW?
THIS INEFFECTIVE
ASSISTANCE YOU LOOK
FROM THE STRICKLAND STANDPOINT,
THIS COURT IN CARRATELLI HAS
CLASSIFIED THAT POINT OF
VIEW DO YOU LOOK AT IT FROM THE
STRICKLAND POINT OF VIEW
ONCE YOU ADDRESS SPECIFIC
PERFORMANCES WHETHER OR NOT
A BIASED JUROR SAT --
>> THE PERFORMANCE, THAT
FIRST STEP YOU SAY WE HAVE
TO BALANCE, THE LAWYER HAS TO
USE SOME JUDGMENT IN THE
PROCESS, WHAT IN THIS CASE
CROSSES IT OVER MAKES IT
MATTER OF FACT LAW WHICH IS
INEFFECTIVE ASSISTANCE IT IS
DEBATABLE, THERE IS EVIDENCE
TO SUPPORT IT, COMPETENT
SUBSTANTIAL EVIDENCE TO SHOW
YES OR NO, THAT IT IS NOT AS
A MATTER OF LAW YOU ARE
ARGUING AS I UNDERSTAND IT
AS MATTER OF LAW, THIS IS --
PERFORMANCE --
>> THERE IS NO EVIDENCE,
ONLY THE RECORD
THAT BALANCING WAS CONDUCTED
HERE BETWEEN --
>> THE DEFENSE LAWYER TESTIFIED
THAT HE BELIEVED THAT
SCHUMANN WAS A GOOD --
>> HE BELIEVED --
>> -- JUROR FOR HIS CASE.
>> STRICTLY FOR THE GUILT
PHASE, AS I SAID, IN A
CAPITAL CASE I DON'T THINK
YOU CAN ONLY LOOK TOWARD THE
GUILT PHASE, AND WE HAVE CASE
LAW, AND -- THE GUIDELINES
THAT SAY THAT.
>> NOW YOU ARE TALKING ABOUT
THE VERY PRECISE STANDARDS
FOR A LAWYER, IN TERMS OF
THE LAWYER DECIDING WHETHER
OR NOT TO LEAVE THE FIRST WE
HAVE WHAT AT LEAST THE STATE
IS ARGUING IS AN EQUIVOCAL
STATEMENT BY THE JUROR, NOT
WHETHER SHE DISREGARDED THE LAW,
SHE SAID, "OH, IN OTHER -- I
WOULDN'T DISREGARD THE LAW, I
WILL FOLLOW THE LAW, I'M
JUST TELLING YOU I
KNOW THAT I LEAN THIS WAY,"
OR WHATEVER.
AND THAT IT IS ONE THING IF
WE ARE JUST CONSIDERING THAT
IN THE CONTEXT OF WHETHER
THE LAWYER DID OBJECT, AND
THEN STUCK WITH THE
OBJECTION YOU KNOW, AND THE
JUDGE DENIED IT, AND IT GOES
UP ON APPEAL.
BUT NOW WE HAVE THE GLOSS OF
THE CLAIM THAT COUNSEL WAS
INEFFECTIVE, AND WE NOW GO
INTO THE SIDE OF IT WHERE WE
GIVE GREAT DEFERENCE TO THE
LAWYER'S JUDGMENT ABOUT
WHETHER TO ACCEPT OR NOT OR
CHALLENGE, AND THAT IS I
THINK WHAT WE ARE CONCERNED
ABOUT HERE.
I'M NOT SURE ABOUT THE
CHIEF'S QUESTIONS, BUT I
KNOW I HAVE THOSE CONCERNS.
DIDN'T THE DEFENSE LAWYER
HERE TESTIFY SPECIFICALLY,
"YES, I REMEMBER THIS
JUROR, AND I CONSCIOUSLY WANTED
THAT JUROR TO --
FELT HER RESPONSE TO A LOT
OF OTHER QUESTIONS ABOUT LAW
ENFORCEMENT A NUMBER OF
OTHER TOPICS MADE HER A VERY
GOOD JUROR FOR ME THEREFORE
I HAD TO DECIDE WHETHER TO
CHALLENGE HER OR NOT."
DIDN'T HE TESTIFY TO THAT
EFFECT?
>> YES, ABSOLUTELY.
BUT I THINK THE DISTINCTION IS --
>> YES, THAT WE GIVE
DEFERENCE.
THEN UNDER THE
STRICKLAND STANDARD --
>> BECAUSE I THINK VERY
SPECIFICALLY THAT THE
DISTINCTION IS HE WAS SPEAKING
OF THE GUILT PHASE, YOU
CANNOT COMPLETELY DISREGARD
WHAT A JUROR'S RESPONSES
WOULD BE WITH RESPECT TO
WHETHER OR NOT THEY WOULD
VOTE FOR DEATH THE PENALTY --
>> -- BY YOU OR BY COUNSEL,
UP HERE WHEN HE
TESTIFIED, YOU DIDN'T -- DID
YOU CONSIDER WHAT EFFECT SHE
WOULD -- RESPONSES WOULD
HAVE IN THE PENALTY PHASE?
>> IT WAS -- TAKEN INTO
CONSIDERATION THE PENALTY
PHASE HE AGREED IT DID NOT I
THINK WHAT IS IMPORTANT IS
IT IS NOT IN -- I MEAN THE
BALANCING THAT THE COURT IS
DISCUSSING IS NOT IN RECORD,
THERE IS NO EVIDENCE THAT HE
CONDUCTED THAT HE AGREED
THAT THIS THIS HAVE -- THE
PENALTY PHASE WASN'T
CONSIDERED, THAT IT WAS
STRICTLY --
>> IN THE RECORD YOU ARE
TALKING ABOUT THE FACT ON
THE RECORD IN THE TRIAL HE
DIDN'T -- HE DIDN'T MOVE TO
STRIKE HER CORRECT?
>> YES BUT I'M TALKING ABOUT
POSTCONVICTION AT THE
EVIDENTIARY HEARING HE
AGREED THE PENALTY PHASE WAS NOT
CONSIDERED
DIDN'T GO TO THE PENALTY
PHASE.
>> STILL SAID HE THOUGHT SHE
WAS A GOOD DEFENSE JUROR.
>> I THINK THAT GOING BACK TO
THIS BECAUSE I THINK IT IS
A QUESTION ABOUT WHETHER --
DEFINITELY WOULD HAVE BEEN A
CHALLENGE THAT WOULD HAVE
BEEN SUSTAINABLE FOR CAUSE
NOW BRINGING INTO THE REALM OF
STRATEGY AND I THINK WHAT
YOU ARE ASKING US TO DO
ALMOST WOULD BE MICROMANAGE THE --
VOIR DIRE PROCESS AS TO EACH
AND EVERY JUROR THAT MIGHT HAVE
BEEN STRUCK AND THOSE THAT
ARE CAPABLE OF STILL PUTTING
ASIDE ANYTHING UNUSUAL
PERSONAL OPINIONS,
AND YOU KNOW FOLLOWING THE
LAW --
>> I THINK THAT I'M NOT
ASKING THE COURT TO
MICROMANAGER WITH RESPECT TO
TO EACH JUROR DURING
VOIR DIER.
HOWEVER, I
THINK IT IS CLEAR ON THE
FACE OF THIS RECORD THAT THE
JURY WAS NOT -- THE JUROR WAS
NOT GOING TO FOLLOW THE LAW
WITH RESPECT TO TO THE DEATH
PENALTY IN FACT, IN
COUNSEL'S RANKING SYSTEM
AGAIN, THE JUROR SAID SHE
WAS -- NINE OUT OF TEN ON
AUTOMATICALLY VOTING FOR
DEATH IN EVERY SITUATION.
AND SO --
>> SHOULD HAVE BEEN RAISED
ON DIRECT -- SO IS CLEAR THAT
SHE WAS BIASED, THAT SHE
SHOULD -- APPLY SOME KIND OF
ERROR ANALYSIS AND SAY THAT
-- THAT JUROR DID NOT --
BECAUSE ON THE FACE OF THIS
RECORD, SHE WAS CLEARLY
BIASED AND THEREFORE WE
OUGHT TO -- TO WHOLE TRIAL,
AND BEGIN AGAIN.
>> I THINK THAT --
>> A STANDARD --
>> I THINK THAT IT IS -- IT
WAS NOT RAISED ON DIRECT
APPEAL OBVIOUSLY IT WAS NOT
PRESERVED I DON'T KNOW THE
REASONING IT WAS NOT
PRESERVED ON THE RECORD
BELOW SO IT WAS NOT RAISED.
I AGREE THAT THIS NEEDS TO
BE ANALYZED FROM A
STRICKLAND STANDARD,
MY POINT BEING THAT THIS WAS
NOT A REASONABLE STRATEGY
DECISION, IT WAS NOT -- IT
DOESN'T -- YOU CAN'T JUST SAY
THAT COUNSEL HAD A STRATEGY
AND THEREFORE WE DON'T FIND
SUFFICIENT PERFORMANCE, THE
CIRCUMSTANCES, THAT HAS TO
BE REASONABLE.
>> ALL RIGHT.
>> VOIR DIRE A FLUID SITUATION,
AN EXPERIENCED LAWYER WOULD
-- WAS -- CERTAINLY CHIEF
ASSISTANT TO DEFENDER SAID I
LOOKED AT THIS I HAD NOTES
TO ME SHE WAS A GOOD DEFENSE
JUROR, THAT WAS HIS
TESTIMONY.
THE JUDGE FOUND THAT
TESTIMONY TO BE CREDIBLE.
>> HIS TESTIMONY WAS SLOWLY --
WAS A GOOD GUILT PHASE JUROR
I THINK THAT IS THE BIG
DISTINCTION HERE, IF A JUROR
IS NOT GO -- I'M SORRY?
>> WHAT WAS -- HE SAID THE
RANKING -- I WAS ON THE
DEATH PENALTY SCALE NOTE,
DEATH PENALTY GUILTY PHASE
SCALE, WHAT WAS CONSIDERED IN
THIS SCALE, LOOKING AT THE
TRIAL COURT'S ORDER SAYS IN
SELF-RANKING OF NINE ON THE
TEN POINT DEATH PENALTY
SCALE THAT IS RIGHT -- THE
QUESTION ASKED OF JURORS ON
A SCALE OF ZERO TO 10, ZERO
BEING YOU WOULD NEVER VOTE
FOR DEATH, AND TEN BEING
YOU WOULD ALWAYS VOTE
FOR DEATH, WHERE WOULD YOU
RANK YOURSELF?
SHE RANKED
HERSELF NINE CONFIRMING THE
ONLY SITUATION WHERE SHE
WOULDN'T VOTE FOR THE DEATH
PENALTY WOULD BE
SELF-DEFENSE.
>> THIS WAS A VOIR DIRE
QUESTION OF JURORS.
>> THAT IS CORRECT.
>> -- UNFAIR QUESTION YOU
ARE ASKING A JUROR, WITHOUT
KNOWING THE LAW, "WHAT IS YOUR
LEANING ON THE DEATH PENALTY?"
SO THE JURORS DON'T KNOW
THAT THEY NEED TO CONSIDER
AGGRAVATING FACTORS,
MITIGATING FACTORS, NOT
REQUIRED TO RECOMMEND DEATH
YOU ARE ASKING THAT QUESTION
OF POTENTIAL JURORS TOTALLY
IN A VACUUM, SO IS --
ISN'T IT UNFAIR LATER
WHEN THEY ANSWER NINE, OH,
THIS JUROR IS BIASED,
DISPOSED TO THE DEATH
PENALTY.
>> THE FACT IS COUNSEL
RELIED ON HIS SCALE
MAKING HIS DECISION, IT IS
NOT --
>> RELIED FOR STRATEGIC
PURPOSES TO SAY THAT IS A
JUROR I WANT ON THE JURY WHY
THIS IS SOMEBODY I DON'T
WANT ON THE JURY BUT
DIFFERENT FROM SAYING THAT
IS A BIASED JUROR.
>> THE WAY WE ARGUED
NINE SIMPLY CONFIRMS SHE
WOULD AUTOMATICALLY VOTE FOR
DEATH UNLESS IT WAS
A SELF-DEFENSE CASE.
>> THAT IS WITHOUT KNOWING
THE LAW, THAT IS WITHOUT
KNOWING THAT SHE IS REQUIRED TO
CONSIDER, MITIGATING
CIRCUMSTANCES, THAT THE STATE
HAS TO PROVE AT LEAST ONE
AGGRAVATING CIRCIMSTANCE, AND ALL
THE LAW THAT THE JUDGE IS
GOING TO GIVE THEM THAT IS
IN A TOTAL VACUUM SOMEBODY
COMING OFF THE STREET YOU
ARE ASKING THEM ARE YOU
IN FAVOR OF THE DEATH PENALTY OR
NOT.
>> MR. HARLEE, HOWEVER, DID
EXPLAIN WHEN THE JUROR FIRST
QUESTIONED ABOUT
SELF-DEFENSE, THAT IN FACT,
HE EXPLAINED BRIEFLY THAT
THERE I THINK WAS GOING TO BE
EVIDENCE ABOUT THE CHILDHOOD
AND YOU HAVE TO WEIGH THIS
YOU HAVE TO LISTEN TO THE
JUDGE'S INSTRUCTION.
AND I WOULD TAKE ISSUE WITH THE
FACT THAT IT WAS AN EQUIVOCAL
ANSWER FROM HER.
IT WAS NOT.
IT WAS QUALIFIED BY "WELL, I
WILL LISTEN BUT -- THIS IS
WHAT I LEAN TOWARDS."
SHE AFFIRMS SHE WOULD VOTE FOR
DEATH UNLESS SELF-DEFENSE.
THE POINT THAT I'M MAKING I
DON'T THINK THAT -- HERE YOU
HAVE A JUROR WHO CLEARLY
WOULD AUTOMATICALLY VOTE FOR
DEATH, IN THE PENALTY PHASE,
YOU CAN'T ASSUME WHERE A
JUROR IS NOT GOING TO FOLLOW
THE LAW IN THE PENALTY PHASE
THEY ARE GOING TO DO SO IN
THE FULL PHASE IT IS
SIMPLY AN UNREASONABLE
ASSUMPTION TO MAKE, MAKING
COUNSEL'S DECISION
UNREASONABLE.
>> DID YOU ASK THE QUESTION
OF HARLEE?
>> DURING THE EVIDENTIARY
HEARING HAD YOU THE
OPPORTUNITY TO ASK DEFENSE
COUNSEL THAT SPECIFIC
QUESTION?
>> WHETHER HE ASSUMED SHE
WOULD FOLLOW THE LAW IN THE
GUILTY PHASE --
>> NO.
>> -- GO INTO THIS
DIALOGUE YOU ARE HAVING WITH
US, HAD THE OPPORTUNITY
ANOTHER EVIDENTIARY HEARING
IT'S YOUR BURDEN WE'RE GOING INTO
THIS DISCUSSION, ON THE
REASONING AND RATIONALE THAT
HARLEE HAD.
DID YOU DO THAT?
>> I THINK THAT IS PARTLY OF
THE RECORD HERE AND HE SAID
THAT HE DID NOT CONSIDER THE
PENALTY PHASE, THAT HE
AGREED WITH QUESTIONING THAT
SHE WAS NOT A GOOD JUROR
DIDN'T TAKE INTO
CONSIDERATION THE PENALTY
PHASE.
>> DID YOU ASK WHY DID HE
EXPLAIN THE REASONING --
JUSTICE PARIENTE, YOU'VE A
VERY EXPERIENCED ATTORNEY
HERE.
>> HE WAS LOOKING AT HER
FOR THE GUILT PHASE AND THAT
IS IT, HE THOUGHT --
>> I'M ASKING YOU, I'M JUST
ASKING WHAT DOES THE RECORD
SHOW THAT IS DIALOGUE
BETWEEN YOU?
DID YOU JUST STOP THE QUESTIONING
AT THE POINT YOU SAID I DID NOT
CONSIDER THE --
>> YEAH I THINK THE STATE
FOLLOWED UP SAID THE RECORD
IS CLEAR THAT AS JUSTICES
SAID, WHAT HIS REASONS WERE
THAT HE WAS LOOKING THAT WAS
HIS SOLE REASON LOOKING AT
THE GUILT PHASE FROM THE
RECORD.
>> YOU HAD INDICATED THAT
YOU WERE CONCERNED ABOUT THE
EVIDENTIARY ISSUES.
>> YES, I DO WANT TO TALK --
>> FOCUS ON ONE OF THOSE
WHAT THAT IS.
>> THANK YOU I WANTED TO
TALK ABOUT COUNSEL'S FAILURE
TO PRESENT EVIDENCE AND
WITNESSES AT THE GUILT
PHASE, THIS WAS A CASE THAT
REALLY HINGED ON TIME LINE
EVENTS THE TIME LINE
WHETHER CODEFENDANTS AND
MR. EVANS WERE AT THE FAIR,
WHETHER THE SHOOTING
OCCURRED THERE, WERE
STARTING WITH WHEN THE
SHOOTING OCCURRED THERE WERE
WITNESSES AVAILABLE TO
COUNSEL THAT IN FACT HE HAD
FAVORABLE INFORMATION FROM
HIS INVESTIGATOR, FROM POLICE
REPORTS, AS TO THE TIMING OF
THE SHOOTING OCCURRING MUCH
LATER THAN WHAT THE STATE
WITNESS HAD SAID.
>> IN THIS CASE OTHER
THAN THE -- THE 12-YEAR-OLD
SON OF THE -- THIS LAWYER
KNEW THAT ALL OF THE
WITNESSES THAT YOU ARE
ANNOUNCING -- HE SHOULD HAVE
CALLED APPEARANCE
WITNESSES; CORRECT?
I JUST WANT TO MAKE SURE ABOUT
THAT.
THIS IS NOT AN ISSUE OF
FAILURE TO INVESTIGATE.
>> THERE IS INFORMATION,
THAT HE SENT HIS
INVESTIGATOR TO TALK TO
SEVERAL WITNESSES,
CRUZ, MEJIA HE SAYS HE COULD
NOT LOCATE THE WILLIAM
LYNCH, SHOOTINGS MUCH LATER
HOWEVER COUNSEL DID HAVE TO
CONCEDE THAT IN FACT THERE
WAS NOTHING REFLECTING ANY
SEARCH FOR MR. LYNCH
THAT --
COUNSEL DID SAY THAT WAS
RECENT TO MR. EVERS,
PROVIDES IMPORTANT --
INFORMATION,
SPECIFICALLY IN CONJUNCTION
WITH TIMING OF THE SHOTS AS
TESTIFIED TO BY AND AS
REPORTED BY THE THREE
WITNESSES I JUST MENTIONED.
HE NEVER SPOKE TO MR. EVERS,
HE DIDN'T DEPOSE HIM, AND
THERE CERTAINLY WAS EVIDENCE
THAT HE SHOULD HAVE TALKED
TO MR. EVERS, MR. EVERS'
FINGERPRINT WAS FOUND AT THE
VICTIM'S TRAILER YET
MR. EVERS HADN'T LIVED
THERE IN QUITE SOMETIME.
>> AGAIN, LET'S -- MR. --
EVERS 12-YEARS-OLD AT THE
TIME OF THEE CRIME.
>> MR. EVERS WAS 12 YEARS
OLD, PROVIDED DEPOSITION, HIS
MOTHER VICTIM'S WIFE A
CODEFENDANT IN THIS CASE HE
DID PROVIDE A DEPOSITION IN
HER CASE, THAT IS
CONSISTENT WITH WHAT HE IS
TESTIFYING TO NOW.
WHAT MR. EVERS TESTIFIED TO
WHAT IS CRUCIAL, IS THAT HE
PUT -- AND DONNA WADDELL
IN THE CAR AT A
LATER TIME OF THE SHOOTING
PROVIDED BY CRUZ, MEJIA
LYNCHES, BETWEEN :30 AND
10:30 P.M. QUITE DIFFERENT
THAN WHAT MISS WADDELL'S
TESTIMONY WAS, SHE
TESTIFIED CONTRADICTORY THAT
IN FACT SHE DID NOT -- LEFT
TO TAKE KIDS HOME WITH MISS
PFEIFFER THAT IS AN IMPORTANT
FACT TRIAL COUNSEL HERE
ARGUED THAT IN FACT,
MR. EVANS DID NOT HAVE THE
OPPORTUNITY TO COMMIT THIS
CRIME, THAT CONNIE
PFEIFFER HAD THE OPPORTUNITY
TO COMMIT THIS CRIME, YET
HE FAILED TO EVEN TALK TO
THIS WITNESS OR PRESENT
ANY EVIDENCE IN THIS REGARD.
HE FAILED TO PRESENT
EVIDENCE WITH RESPECT TO THE
TIMING OF THE SHOTS.
WHAT HE TESTIFIED TO
THAT HE HAD THE REPORTS FROM
THIS INVESTIGATOR HE SUBPOENAED
THEM TO TRIAL, WHERE
SEVERAL OF THE WITNESSES
APPEARED AT TRIAL I BELIEVE
MR. CRUZ HE COULDN'T
REMEMBER IF CRUZ OR MEJIA,
ONE SHOWED UP AT TRIAL, ONLY
SPOKE TO THEM IN THE HALLWAY
IN THE HALLWAY HE MADE THAT
DECISION.
>> -- IN THIS CASE
WHETHER OR NOT THE
12-YEAR-OLD REALLY WAS AWARE
OF WHAT TIME THESE ACTS --
ACTIONS WERE REALLY GOING
ON -- WASN'T THERE SOME
TESTIMONY THAT HE SAYS THAT
WELL I REALLY DIDN'T HAVE ANY
REASON TO BE PAYING
ATTENTION TO WHAT TIME IT
WAS SO -- WAS HE SORT OF --
SO WHETHER OR NOT, THAT TIME
THAT HE SAID WAS REALLY
ACCURATE.
>> THAT WOULD BE CORRECT
HE DIDN'T HAVE A SPECIFIC
RECOLLECTION OF THE TIME BUT
IN TERMS OF OTHER FACTS HE
WAS FIRM ON THE FACT THAT
DONNA WADDELL TOOK HIM HOME
WITH HIS MOTHER CONNIE
PFEIFFER, HE WAS ALSO VERY
CLEAR ON -- HE REMEMBERED WHAT
RIDES HE RODE, HE HAD A VERY
SPECIFIC RECOLLECTION OF
OTHER DETAILS BESIDES TIME.
I THINK IF YOU LOOK AT HIS
TESTIMONY, IN CONJUNCTION
WITH THE TESTIMONY OF KRAIG
HILL A FRIEND OF CONNIE
PFEIFFER WHO SAID CONNIE LEFT
THE FAIR TO TAKE HER
CHILDREN HOME AT
APPROXIMATELY 9:30.
THAT PUTS HIS TESTIMONY IN
THE CONTEXT OF THE TIME
FRAME --
>> WHEN WAS THIS, I
THOUGHT THE MURDER WAS
SUPPOSED TO HAVE TAKEN PLACE
AROUND 8:00 OR 8:30.
>> THAT IS WHAT THE STATE'S
THEORY WAS THE STATE'S
THEORY WAS BASED ON ONE
WITNESS, LEO CORDARY,
SHOOTING OCCURRED
APPROXIMATELY 8:00 P.M.
BETWEEN 8:00 AND 8:30 P.M.
THE ONLY WITNESS WHEN POLICE
CANVASSED THE NEIGHBORHOOD
THAT REPORTED THE SHOOTING
AT THAT TIME.
THAT COINCIDENTALLY FIT WITH
WHAT DONNA WAS SAYING AND
THOMAS WAS SAYING, THESE
TWO, THOMAS, WADDELL HAD MOST
TO GAIN FROM THIS, SO HE
--
>> HAD THE MOST TO GAIN IN
THE SENSE THESE ARE ALL
CO -- SORT OF CONSPIRATORS, TO
THE MURDER OF THE DEFENDANT;
CORRECT?
>> THAT IS RIGHT.
>> ON BEHALF OF THE
DEFENDANT'S WIFE.
>> CORRECT.
>> AND SO WHAT DID THEY HAVE
TO GAIN?
>> WELL MISS THOMAS WAS
NEVER CHARGED AT ALL WITH
THE CRIME AND SO SHE WAS WALKING
COMPLETELY AWAY, DONNA WADDELL
ENDED UP WITH A MUCH LESSER
SENTENCE SERVED HER TIME.
>> PEOPLE WHO WERE NOT
ALLEGED TO BE THE SHOOTERS,
THE ACTUAL PERPETRATORS OF
THE CRIME, THEY WERE JUST
COCONSPIRATORS.
>> THEY WERE YES THEY WERE
ALLEGED TO HAVE HAD
PARTICIPATION AND PLANNING
AND INVOLVEMENT AND --
STATE'S THEORY THAT
MR. EVANS WAS THE SHOOTER
WHAT THESE ADDITIONAL
WITNESSES WOULD HAVE SHOWN
PROVES MEJIA, MR. LYNCH AND
ALSO THERE'S ALIBI
WITNESSES, ROSA HIGHTOWER
AND ANTHONY WHO WOULD HAVE
PROVIDED THE NECESSARY ALIBI
FOR MR. EVANS, AT TRIAL.
THEY WOULD HAVE SHOWN THAT
IN FACT THE STATE'S THEORY
WAS WRONG, SHOOTING OCCURRED
MUCH LATER, AND IN FACT, AS
THE DEFENSE ARGUED THAT
CONNIE PFEIFFER AND DONNA
WADDELL HAD THE OPPORTUNITY
TO COMMIT THE MURDER AT THAT
TIME.
SO WHILE THAT WAS THE
STATE'S THEORY THIS WAS
SUFFICIENT EVIDENCE MANY
WITNESSES WHO IN FACT COULD
HAVE PROVIDED THE
REASONABLE DOUBT NECESSARY
PROVIDED THE REASONABLE
DOUBT THAT COUNSEL WAS
ARGUING IN CLOSING ARGUMENT
AND OPENING ARGUMENT HE
SIMPLY DID NOT HAVE -- HE
DIDN'T PRESENT THE EVIDENCE
TO SUPPORT THAT.
>> YOU ARE WELL OVER TIME
ARE THERE ANY OTHER ISSUES
YOU REALLY NEED TO TALK TO
US ABOUT?
>> NO, YOUR HONOR.
IF ANY TIME
LEFT I WILL RECEIVE -- THANK
YOU.
>> YOU ARE PAST YOUR TIME I
WANT TO GIVE YOU AN
OPPORTUNITY IF THERE IS SOME
OTHER POINT -- YOU HAVE TALKED
ABOUT TWO.
ARE THOSE THE ONES
YOU WANTED TO HIT THIS
MORNING?
>> I THINK BASICALLY IN
TERMS OF THE GUILT PHASE
THERE IS A LOT OF DETAILS,
TIMING, THAT IS INVOLVED,
AND THE BRIEF IS VERY
THOROUGH GOING OVER THOSE
DETAILS, I WOULD RELY ON
THAT I WANT TO POINT OUT
WITH THE JUROR THAT I THINK
THERE IS INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN
YOU ASSUME THAT A JUROR THAT
WILL NOT FOLLOW THE LAW IS --
YOU ALLOW THAT PERSON TO SIT
ON THE JURY AND HERE WE SAW
ADDITIONAL PREJUDICE IN
TERMS OF JUROR SCHUMANN
SUSPECTED TO HAVE EXTRINSIC
INFORMATION, THAT CAME OUT
AT THE BEGINNING OF THE
TRIAL PHASE THAT IS FURTHER
PREJUDICE HERE.
>> THANK YOU.
>> MISS CAMPBELL.
>> GOOD MORNING, AGAIN,
LESLIE -- MAY IT PLEASE THE
COURT, LESLIE CAMPBELL,
ATTORNEY GENERAL'S OFFICE, ON
BEHALF OF THE STATE.
QUICKLY,
WITH REGARD TO JUROR
SCHUMANN, IT WAS MR. HARLEE'S
TESTIMONY THAT HE DID LOOK
AT THE GUILT PHASE BALANCING
HIS PLUSES AND MINUSES
FOR THIS JUROR, AND THAT
HE ALSO FIGURED THAT IF
HE WON THE GUILT PHASE HE
WOULDN'T HAVE A PROBLEM WITH
THE PENALTY PHASE WOULDN'T
GO FORWARD SO IF HE HAD A
GOOD GUILT PHASE JUROR, THAT
WAS IMPORTANT TO HIM.
AND THAT IS WHAT HE
CONSIDERED.
AND THAT IS REASONABLE
STRATEGY.
>> -- HE MAKE A DECISION AS
TO IF THEY HAD MOVED TO
STRIKE MR. -- THE JUDGE
DENIED IT, WHETHER THIS
WOULD HAVE BEEN A REVERSIBLE
ERROR AS TO THE DENIAL OF
THE CAUSE CHALLENGE?
>> IT WOULDN'T BE REVERSIBLE
ERROR.
>> WE FIRST HAVE TO LOOK AT
THAT TO SEE --
>> YES.
>> -- TO SEE IF IN FACT
BASED ON HER ANSWERS SHE WOULD
HAVE BEEN REMOVED FOR CAUSE.
>> RIGHT -- THE STATE'S
POSITION THAT SHE WOULDN'T
BE BECAUSE SHE WAS -- SHE
NEVER SAID THAT SHE WOULDN'T
FOLLOW THE LAW.
IN FACT IT WAS TO THE -- IT WAS
THE OPPOSITE SO THIS WAS A
QUALIFIED JUROR.
>> WHAT DOES THE RECORD
SHOW WITH REGARD TO WHETHER
THE DEFENSE UTILIZED ALL OF
THEIR PEREMPTORY CHALLENGES?
>> I DON'T BELIEVE THEY DID
YOUR HONOR.
NOW WITH RESPECT TO THE TIME
LINE IT WAS THE STATE'S
THEORY THAT THREE CRIME TOOK
PLACE BETWEEN 8:00 AND 8:30.
HAVE I ANSWERED ALL THE
QUESTIONS WITH -- REGARD TO
--
>> CAN YOU ELABORATE THE
CHIEF JUSTICE'S QUESTION
BECAUSE IT SEEMS TO ME
THE STANDARD ON APPEAL IS
ONE OF THE THINGS THAT
THE DEFENSE HAS TO PROVE WAS
THAT THEY USED UP THE PEREMPTORY
THAT PEREMPTORY THEY ASKED FOR
ADDITIONAL PEREMPTORY TO USE
ON THE JUROR THAT THEY
WANTED TO -- DISMISS FOR
CAUSE AND THAT THEY WERE
DENIED THAT ADDITIONAL
PEREMPTORY SO THE COMPLETE
ANSWER TO JUSTICE
PARIENTE'S QUESTION MAY ALSO
BE WELL THE TRIAL COUNSEL
NEVER ASKED FOR ADDITIONAL
PEREMPTORIES, HE DIDN'T USE
UP PEREMPTORIES.
EVEN FOR
THAT REASON THIS WOULD NOT
HAVE BEEN REVERSED ON APPEAL
IF THAT IS THE CASE.
>> YOUR HONOR, I MUST
APOLOGIZE, I DO NOT RECALL
WHETHER THEY USED UP ALL
PEREMPTORIES OR NOT.
I'M ASSUMING THAT THEY DID,
BASED ON THE ARGUMENTS THAT
WE MADE.
IN ANY CASE, WITH REGARD TO
THE STRICKLAND STANDARD, IT
WASN'T SOMETHING THAT
MR. HARLEE DIDN'T CONSIDER
AT ALL.
HE DID LOOK AT THIS JUROR,
HE DID TAKE INTO ACCOUNT --
[INAUDIBLE]
IT WAS HIS BELIEF SHE FELL
INTO THE CATEGORY OF A GOOD
DEFENSE JUROR, FOR AT LEAST
THREE REASONS, AND THAT SHE
NOT ONLY HAD A DIFFICULTY
WITH THE COURT SYSTEM BASED
ON HER BROTHER'S
EXPERIENCES, BUT SHE ALSO
HAD AT LEAST NOTED THAT IT
WAS CONNIE PFEIFFER WHO HAD AN
INSURANCE POLICY AND THAT
DOVETAILED INTO THE --
>> -- OPPOSITION HAS
BASICALLY CONCEDED THAT THOSE
STATEMENTS WERE MADE, THE
THRUST OF THE ARGUMENT AS I
UNDERSTAND IT IS THAT
ASSUMING ALL OF THAT, THAT ON
THIS RECORD AS A MATTER OF
LAW, THERE WAS NO REASONABLE
JUDGMENT EXERCISED AS A MATTER
OF LAW THAT FELL BELOW THE
STANDARD, THAT IS THE
ARGUMENT THAT IS BEING MADE.
IS THERE CASE LAW THAT
SUPPORTS THAT?
IF NOT, WHAT IS THE LAW AS
YOU SEE IT?
>> THE STANDARD IS -- IT IS
NOT A PER SE THAT IF THIS
JUROR THIS JUROR SHOULD HAVE
-- SAT OR SHOULDN'T HAVE SAT
AS FAR AS THE STRICKLAND
STANDARD IS CONCERNED, THE
DEFENSE COUNSEL HAS TO HAVE
LOOKED AT THE JUROR AND MADE
A STRATEGY DECISION, AND HE
DID IN THIS CASE.
HE WAS LOOKING AT -- WINNING
THE GUILT PHASE.
>> AND THAT IS THE ARGUMENT
THAT -- THAT YOU CANNOT DO
THAT, THAT IS WHAT THEY ARE
SAYING -- THE LAW OR NOT
THAT IS THE ARGUMENT THAT IS
WHAT YOU HAVE TO RESPOND TO
AS A MATTER OF OF LAW THAT YOU
HAVE TO CONSIDER THE PENALTY
PHASE AS WELL IN PERFORMING
THIS JUDGMENT AND IF YOU
DO NOT, THEN IT IS NOT.
-- THAT IS --
>> AND HE DID, HE FOUND THAT
THIS JUROR DID NOT SAY
THAT SHE WOULDN'T FOLLOW THE
LAW.
>> LET ME GIVE YOU A
HYPOTHETICAL FOR INSTANCE
THAT MIGHT PUT IT IN -- IF
-- IF THIS JUROR INDEED HAD
SAID, THEN WITHOUT ANY
ELABORATION LATER, EXPLANATION,
WHATEVER, LET ME ASSURE YOU
THAT IF WE SHOULD CONVICT
MR. SMITH OR THE DEFENDANT HERE
MR. EVANS, THAT I WILL VOTE
FOR THE DEATH PENALTY BECAUSE I
BELIEVE SO STRONGLY ABOUT
IT.
IF THAT WAS THE ONLY THING THERE
IN THE RECORD THERE WAS
NOTHING ELSE NOW, THE --
WOULD YOU AGREE THAT COUNSEL
PROBABLY WOULD BE FOUND TO
HAVE BEEN INEFFECTIVE IN
ACCEPTING A JUROR LIKE
THAT WITHOUT ANYTHING ELSE?
>> WITHOUT SAYING SHE WOULD
FOLLOW THE LAW OR ANYTHING?
YEAH, I WOULD ASSUME THAT HE
WOULD HAVE NOT ONLY MOVED TO
STRIKE HER BEFORE THAT, BUT
IF THIS COURT HAD SEEN THAT
ON DIRECT APPEAL WOULD HAVE
FOUND THAT -- THAT SHE
SHOULD HAVE BEEN STRICKEN
FOR CAUSE IF SHE WOULDN'T
FOLLOW THE LAW.
>> IN ADDITION TO THE
REASONS ABOUT HER BEING A
GOOD JUROR DURING THE GUILT
PHASE, IF SHE ALSO ANSWERS
SOME OTHER QUESTIONS THAT HE
POSED SAYING THAT SHE WOULD
FOLLOW THE LAW IS THAT -- IS
THAT WHAT YOU'RE RELYING --
>> I'M RELYING ON THAT, IT IS
A BALANCING, YOUR HONOR, THIS
IS NOT -- THIS IS NOT A --
STRICT CLIENT, IT IS GUT
REACTIONS FROM THE DEFENSE
COUNSEL AS TO HOW THESE
JURORS ARE RESPONDING AND
WHETHER OR NOT THEY'RE GOING
TO BE GOOD JURORS FOR THE DEFENSE.
>> THE STATE IS SAYING WE
DON'T HAVE THE JUROR THAT I
DESCRIBED IN MY
HYPOTHETICAL.
>> ABSOLUTELY NOT.
>> THE JUROR SAYS I DON'T
CARE, WHATEVER -- WHAT
EVERYTHING ELSE IS WE FIND
THIS FELLOW GUILTY, I'M
GOING TO VOTE FOR THE DEATH
PENALTY.
>> THAT IS NOT THE CASE
HERE.
>> WOULD YOU GO INTO
ADDITIONAL ARGUMENT THAT SHE
SET FORTH THEY HAVE --
BASICALLY YOU PAINTED A
PICTURE OF A LAWYER JUST
DOESN'T KNOW WHAT HE OR SHE
IS DOING.
WE'VE GOT ALL KINDS
OF WITNESSES THAT ESTABLISH
THIS CRIME TOOK PLACE
TOTALLY -- IN A TOTALLY
DIFFERENT WAY AND COULD NOT
HAVE BEEN THE PERSON.
WHAT IS THE STATE SAYING IN RESPONSE
TO THAT ARGUMENT?
>> WELL, WITH REGARD TO
MR. MEJIA, AND MR. LYNCH
MR. LYNCH PASSED AWAY BY THE
TIME OF THE EVIDENTIARY
HEARING, AND THE DEFENSE
COULDN'T FIND MR. MEJIA,
LEAVES US WITH MR. CRUZ,
MR. CRUZ ADMITTED NOT ONLY
TO THE DEFENSE INVESTIGATORS
BUT TO DEFENSE COUNSEL,
MR. HARLEE AS WELL AS TO THE
PROSECUTORS BEFORE TRIAL
THAT HE WAS DRUNK AT THE
TIME, HE REALLY DIDN'T KNOW,
THE TIME HE PUT IT AT, HE
ESTIMATED IT WAS A LATER
PERIOD OF TIME.
DEFENSE COUNSEL HAD THAT
INFORMATION.
AND HE MADE A STRATEGIC
DECISION THAT THAT WOULD NOT
HELP.
THAT IT IS -- IT WOULD MR. CRUZ
WOULD BE EASILY
CROSS-EXAMINED AND
IMPEACHED, AND TO LOSE THE
-- WOULDN'T HAVE BENEFITTED
HIS CASE SO THIS IS NOT A
SITUATION WHERE THE DEFENSE
DIDN'T KNOW ABOUT A WITNESS,
DIDN'T CONSIDER A WITNESS,
DIDN'T INVESTIGATE A
WITNESS.
>> HOW ABOUT THE OTHER, THE
TRANSPORT OF THE TRIAL AND
WHAT IS THE STATE'S RESPONSE
TO THAT?
YOU ARE SAYING CLEARLY HERE
IS EVIDENCE THAT IT -- THEY
WEREN'T -- SOMEONE ELSE WAS
THERE --
>> LET'S LEAVE MR. EVERS
OUT OF IT JUST A
MOMENT.
WE HAVE MISS HIGHTOWER
AND MR. KOVALESKI
BOTH WITNESSES, DEFENSE WAS
AWARE OF BOTH WITNESSES THE
DEFENSE INVESTIGATED WHAT
MISS HIGHTOWER SAID TO THE
DEFENSE INVESTIGATORS, AND
BEFORE TRIAL DIFFERENT THAN
WHAT SHE SAID AT THE
EVIDENTIARY HEARING SHE DID
NOT GIVE A FULL ALIBI --
NEITHER DID MR. KOVALESKI
TO THE INVESTIGATIVE -- A
FULL ALIBI FOR THE TIME
FRAME THE STATE WAS
SUGGESTING WAS THE TIME OF
THE CRIME.
>> THESE WERE THE WITNESSES THAT
WOULD HAVE WHETHER -- THE
DEFENDANT WAS AT THE FAIR.
>> AT THE FAIR.
>> THE WHOLE IDEA WAS EVANS,
THAT WAS HIS STRATEGY, IF
YOU BELIEVED THE WITNESSES
THAT DID INSTEAD OF HE WAS
GOING TO CREATE THIS IS TO BE AN
ALIBI THAT HE WAS ACTUALLY
AT THE FAIR, COULDN'T HAVE
COMMITTED THE MURDER.
>> RIGHT, HE WANTED TO BE
SEEN BY MANY PEOPLE AT THE
FAIR HE COULD SLIP, OUT SLIP
BACK IN.
>> THE EVIDENCE IS AND THE
JUDGE FOUND AT THE
EVIDENTIARY HEARING THAT
AGAIN THEY KNEW OF THESE
WITNESSES AND MADE A
DECISION THAT THEY COULD NOT
PROVIDE A COMPLETE ALIBI FOR
MR. EVANS.
>> THAT IS AT THE TIME OF
TRIAL.
>> AT THE TIME OF TRIAL.
THE OTHER QUESTION I HAVE IS
HE DID AT THAT TIME -- THE
DEFENSE LAWYER THAT WHEN HE
WAS EVALUATING THESE WERE
WITNESSES, THEY WERE WEAK,
THEY WERE CONTRADICTORY, THEY
COULD BE IMPEACHED, HE ALSO
CONSIDERED THAT HE DIDN'T
WANT TO GIVE UP --
>> THE SANDWICH.
>> -- THE SANDWICH WHICH YOU HAVE NOW
SAID IS NO LONGER THE CASE.
IS THAT -- GIVEN THE STATE OF
LAW AT THE TIME IS THAT A
VALID PROCEDURE -- STRATEGIC
DECISION TO SAY I'M GOING TO
LOOK AT WITNESSES, MAYBE --
ONE OR TWO OF THEM, BUT
I DIDN'T WANT TO GIVE UP THE
OPENING -- CLOSING ARGUMENT.
>> AT THE TIME THAT IS A
VALID STRATEGY, AND DEFENSE
COUNSEL IS SUPPOSED TO MAKE
THAT DECISION, TAKE OUT --
DON'T WORRY ABOUT THE FACT
OF THE SANDWICH.
THAT IS HIS PLACE, HIS ROLE
IN THIS SITUATION TO
EVALUATE THE WITNESSES --
>> THE PRIMARY ISSUE WE SHOULD
BE LOOKING AT IS WERE THESE
GOOD WITNESSES OR NOT GOOD
WITNESSES.
>> THAT IS CORRECT, YOUR HONOR.
>> IF SOMEBODY SAYS I WANT
OPENING AND CLOSING THERE
WAS A POWERFUL WITNESS --
>> I DIDN'T SAY --
>> THIS RISES AND FALLS ON
THIS IS A CASE ON HOW GOOD
THESE WITNESSES WOULD HAVE
BEEN AT LEAST FROM MY POINT
OF VIEW.
>> FROM YOUR POINT OF
VIEW THE CASE LAW, AND
EVERYTHING, YOU CAN -- 90%
OF IT WOULD BE EVALUATION OF
THE WITNESSES.
>> THIS IS NOT -- THEY PLACED
HIM -- TELL ME WHAT THEY WOULD
HAVE TESTIFIED TO OR WHAT HE
BELIEVED THE DEFENSE
LAWYER THAT THEY WOULD HAVE
TESTIFIED TO AT THE TIME OF
TRIAL.
>> NONE OF THEM COVERED THE
8:00 TO 8:30, SO MISS HIGHTOWER
I THINK SAW HIM AT 6:30
THEN SHE WAS WITH HIM OR SAW
HIM, FOR LIKE AN HOUR, AN
HOUR AND A HALF, DIDN'T COVER
THE STATE'S TIME.
OF COURSE, AT THE
EVIDENTIARY HEARING, IT IS
NOW EXPANDED TO COVER THE
STATE TIME AND THE SAME FOR
MR. KOVALESKI, INITIALLY --
HIM I THINK HIS TIME WAS
AGAIN ANOTHER HOUR, HOUR AND
A HALF, AND THAT WAS AT THE
TIME OF THE TRIAL.
BUT BY THE TIME WE GET TO
THE EVIDENTIARY HEARING NOW
HE IS WITH HIM FOR TWO
HOURS.
BUT WHAT THE DEFENSE COUNSEL
HAD TO LOOK AT WAS THE
TESTIMONY THAT THE PRETRIAL
INVESTIGATION DEVELOPED AND
THAT WAS NOT A COMPLETE
ALIBI.
>> WHAT WAS THE
PRIMARY DEFENSE --
>> NOT ME, I WAS NOT THE ONE
WHO DID IT.
I WAS AT THE FAIR.
>> WHAT ABOUT MR. EVERS?
WERE YOU GOING TO GET BACK TO
HIM?
>> MR. EVERS GRANTED
DEFENSE COUNSEL DID NOT KNOW
ABOUT HIM HOWEVER AT THE
EVIDENTIARY HEARING, THERE
WAS TESTIMONY THAT IT WAS
AGREED UPON THAT IT GOT DARK
ABOUT 6:45 THAT IS
DUSK MR. EVERS' TESTIMONY
WAS THAT HE SAW MR. EVANS,
AT THE TIME THAT HE WAS
LEAVING THE FAIR, WHICH WAS
LIKE 7:00 OR 8:00.
THAT WAS THE TESTIMONY.
AND THEN GIVEN THAT, IN
ADDITION TO MR. EVERS
SAYING THERE HE WAS MORE
INTERESTED IN RIDING THE
RIDES HE WAS -- HIS BROTHER
WASN'T PAYING ATTENTION,
AGAIN, THAT INFORMATION
WOULD NOT UNDERMINE
CONFIDENCE.
THERE IS -- THERE IS NO
REASONABLE PROBABILITY
THAT HAD THAT PARTICULAR
WITNESS TESTIFIED THAT
EVERYTHING THAT DONNA
WADDELL, EVERYTHING THAT
SARAH THOMAS TESTIFIED TO
WOULD HAVE BEEN REEJECTED.
>> SEEMS -- THE IMPLICATION
WAS MADE ACTUALLY THE
SHOOTERS WERE WADDELL AND
PFEIFFER, THAT WAS --
>> THAT IS PART OF THE
DEFENSE ARGUMENT.
>> EVERS' TESTIMONY -- THAT
WAS REALLY THE THE SHOOTER
MAY NOT HAVE BEEN EVANS.
>> IN ORDER TO GO WITH THAT
LINE YOU ALSO HAVE TO
BELIEVE THAT MR. CRUZ, WHO
WAS DRUNK AT THE TIME,
ADMITTEDLY DRUNK AT THE
TIME, AND ADDITIONALLY THAT
HE HAD HAD AN ACCIDENT THAT
CAUSED HIM TO HAVE MEMORY
PROBLEMS SO -- WE HAVE A --
A -- A WITNESS THAT REALLY
DOESN'T GIVE A FIRM TIME FOR
THE SHOOTING, BUT YOU HAVE TO
COMBINE THOSE TWO.
YOU WOULD HAVE TO PUT CRUZ
ON AS WELL AS EVERS, AND
THEY NEVER --
>> YOU HAVE TO SHOW THAT THE
SHOOTING OCCURRED LATER.
>> THAT IS CORRECT, YOUR
HONOR.
>> AND THAT WOULD TAKE --
WHO HE HEARD -- AT 8:00 TO
8:30, WERE THERE OTHER
WITNESSES IN THE
NEIGHBORHOOD THAT HEARD
SHOTS LATER?
>> AS FAR AS THE -- NOT THAT
-- TESTIFIED, NO, YOUR HONOR,
AND MR. LYNCH PASSED AWAY.
WE DON'T HAVE HIS TESTIMONY.
>> WHICH WITNESSES COULD
HAVE TESTIFIED THAT --
[INAUDIBLE]
>> WOULD BE MR. CRUZ.
MR. MEJIA, NOBODY COULD FIND
HIM, AND I DON'T BELIEVE HE
WAS FOUND.
HE WAS -- NOT
AROUND.
IF HE WERE AROUND HE
HAD BEEN TALKED TO --
>> IF THEY KNEW ABOUT THE
TIME OF THE TRIAL AND THEY
MADE A DECISION NOT TO CALL
HIM?
CRUZ AND MEJIA WERE EITHER
AVAILABLE OR THEY HAD TALKED
TO THEM, BUT THEN COULDN'T
REACH THEM AT THE TIME
OF TRIAL.
BUT MR. -- OR AGREES THAT
MR. CRUZ WAS THE ONE THAT
MR. HARLEE SPOKE TO.
>> SO YOU HAVE TO HAVE BOTH
OF THOSE WITNESSES TESTIFY
IN ORDER TO -- EVEN MAKE
AN ATTEMPT AT A STRICKLAND
STANDARD, AND BOTH OF THEM
ARE IMPEACHABLE, CERTAINLY
GIVEN THE WEALTH OF
INFORMATION SARAH THOMAS,
DONNA WADDELL PUT FORWARD --
WOULDN'T HAVE MADE A
DIFFERENCE.
>> ARE THERE ANY OTHER
QUESTIONS?
I WOULD RELY ON MY
BRIEF, ASK THIS COURT TO
AFFIRM DENIAL OF THE
POSTCONVICTION RELEASE AND
DENIAL OF HABEAS.
THANK YOU.
>> I WILL GIVE YOU ONE
MINUTE.
YOU ARE WELL OVER BUT
ONE MINUTE.
>> VERY -- SOME THINGS
THAT COUNSEL SAID I DO TAKE
ISSUE WITH.
FIRST, SHE KEPT REFERRING TO
THE FACT MR. CRUZ WAS VERY
DRUNK, THEREFORE, HIS
TESTIMONY AS TO TIMING WOULD
HAVE BEEN IMPEACHABLE,
HOWEVER, LEO CORDARY
THE STATE WITNESS
WAS ADMITTEDLY DRUNK, WAS
ADMITTEDLY A CONVICTED
FELON, WAS IN JAIL AT THE
TIME.
TO THAT HE TESTIFIED.
SO HE WAS NO DIFFERENT THAN
ANY DEFENSE WITNESS
AVAILABLE.
ALSO, COUNSEL
REFERRED TO A
WEALTH OF EVIDENCE PUT
FORWARD BY WADDELL AND
THOMAS.
I THINK WHAT -- THIS
COURT NEEDS TO REMEMBER WHAT
HAD BEEN POINTED OUT EVEN IN
DIRECT APPEAL, THAT WADDELL
AND THOMAS CONTRADICTED EACH OTHER
ON A CRUCIAL ASPECT OF THIS CASE,
ONE WHERE MR. EVANS WAS AT THE
FAIR.
TO BEGIN WITH ADDITIONAL
ALIBI WITNESSES PUT HIM
THERE AT DUSK THE OTHER OR
WHETHER OR NOT THEY ACTUALLY
WENT BACK TO THE FAIR
WAITING FOR MR. EVANS,
ANOTHER ISSUE IS THAT THEY
WERE CONTRADICTING EACH
OTHER ON WAS IN FACT WHEN
THEY DISPOSED OF THE WITNESS
ALSO -- I'M SORRY, THE
WEAPON WHICH ALSO PLAYS INTO
THE TIMING OF ALL OF THIS.
>> LET ME ASK YOU ABOUT --
THIS CRIME OCCURRED IN
1991; CORRECT?
AND -- THE REST OF MR. --
EVANS WAS IN 1997.
>> I BELIEVE '97, CORRECT.
>> SO ALL OF THESE
STATEMENTS, WADDELL, THOMAS,
ALL OF THESE STATEMENTS
WERE -- TAKEN AT SIX YEARS
AFTER THE MURDER?
>> THERE WERE STATEMENTS
THAT WERE TAKEN IN 1991 WHEN
IT WAS BEING INVESTIGATED,
AND THEN ALSO AGAIN --
THOMAS NEVER ARRESTED ALSO,
YES.
AGAIN, YEARS LATER.
>> SO MOST OF THE EVIDENCE
THAT WAS PRESENTED AT TRIAL
WAS REALLY EVIDENCE, THE
STATEMENTS THAT WERE MADE
DURING THE 1997 PERIOD OF
TIME.
IS THAT CORRECT?
>> THAT IS MY UNDERSTANDING
THAT WOULD BE MUCH LATER IN
DEPOSITION THAT THEY GAVE
THERE WAS CONTRADICTORY
STATEMENTS IN ALL OF THOSE.
>> WITH THAT I THINK WE HAVE
WELL GONE OVER, WELL BEYOND
THE ADDITIONAL TIME.
>> THANK YOU.
I ASK THE COURT LOOK AT THE
BRIEFS AND THEN REVERSE FOR A NEW
TRIAL.
THANK YOU.
>> THANK YOU.
>> COURT WILL STAND IN
RECESS.
>> ALL RISE.