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Mark Anthony Poole v. State of Florida

SC05-1770


GOOD AFTERNOON.
GOOD MORNING.
COURT IS BACK IN SESSION
PLEASE BE SEATED.
THE FINAL CASE ON OUR
DOCKET THIS MORNING, IS
POOLE VERSUS STATE OF
FLORIDA, MR. HELM.
MAY IT PLEASE THE COURT,
MY NAME IS PAUL HELM, AND I
REPRESENT THE APPELLANT,
MARC ANTHONY POOLE,
MR. POOLE WAS CONVICTED
EXTENDSED TO DAET FOR MURDER
OF ONE NOAH SCOTT FOR
ATTEMPTED MURDER AND RAPE
BURGLARY ROBBERY OF LORETTA
WHITE MR. SCOTT'S
GIRLFRIEND.
THE FIRST ISSUE IN THIS
CASE, CONCERNS THE
PROSECUTOR'S CLOSE REGULAR
BUTTAL PHASE IN GUILTY OR
INNOCENCE PHASE OF THE
TRIAL.
THE STATE'S CASE AGAINST
MR. POOLE WAS LARGELY
CIRCUMSTANTIAL.
AND DEFENSE COUNSEL.
WHAT DO YOU MAINTAIN I
MEAN CIRCUMSTANCE YOU MEAN
THAT YOU -- SIESHG
CIRCUMSTANTIAL YOU HAD DNA
EVIDENCE ALL BLOOD EVIDENCE
ON TIRE IRONS, ON CONDOMS
THINGS LIKE THAT, ALL OF
WHICH.
CIRCUMSTANTIAL EVIDENCE.
WELL I MEAN, WE MAY TALK
ABOUT THAT -- IF EVERYTHING
OTHER THAN EYEWITNESS IS
CIRCUMSTANTIAL THEN OKAY I
CAN BUY THAT BUT THIS --
THIS IS ENORMOUS AMOUNT OF
EVIDENCE.
--
YOUR HONOR -- WE'RE
GETTING OFF TRACK HERE.
WELL --
YOU STARTED THIS BY GOING
DOWN THAT PATH -- RIGHT TO
ARGUMENTS ARE WE IN FLORIDA
LAW FOR EXAMPLE TO THE POINT
THAT ONE GETS UP ON THE
STAND, AND THINK PAINTS
PICTURE OF A PERSON THAT YOU
MAY BE RIGHT YOU PROBABLY
ARE RIGHT, THAT THEY PAINT
THE PICTURE OF THE SAINT.
I MEAN, ABSOLUTE SAINT, AND
YOU CAN IMPEACH ABOUT
EVERYTHING EXCEPT YOU CAN'T
IMPEACH WITH PRIOR CRIMINAL
CONDUCT THAT IS PRETTY MUCH
THE LAW; RIGHT?
UH --
UNDER THESE
CIRCUMSTANCES.
PRETTY MUCH.
I MEAN THAT IS REALLY
WHERE WE ARE SO YOU REALLY
GOT -- YOU GOT -- IN THE
VERNACULAR INTO THIS ONE,
BECAUSE AND THAT -- ALSO
WITH REGARD TO WHAT WAS
GOING ON, WITH THE EVIDENCE,
IF TWO PEOPLE ON THE STAND
THEN THEY DEFENSE ATTORNEY
STANDS UP AND SAYS YOU KNOW,
GOES INTO AN ARGUMENT ABOUT
THE GUY BEING IN THERE ALL
THAT YOU DID ALL THESE OTHER
THINGS BUT IT WAS OTHER
FOLKS THAT DID IT IS, I MEAN
-- THAT IS THE POINT.
IN RESPONSE TO THE D
DEFENSE COUNSEL'S EARTH
DEFENSE COUNSEL BEGAN HIS
ARGUMENT SAYING THAT
MR. POOLE ACKNOWLEDGED THAT
HE WAS GUILTY OF EVERYTHING
EXCEPT THE FIRST-DEGREE
MURDER AND TEEMENTD
FIRST-DEGREE MURDER.
LET'S GO TO -- FIRST
ISSUE GUILT PHASE, SECONDED
ISSUE JUSTICE WAS RESERVING
TO HAD TO DO WITH THE
PENALTY FACED, IMPEACHMENT;
CORRECT?
YES.
ALL RIGHT, THE DEFENSE
LAWYER GETS UP SAYS HE
ACKNOWLEDGED HE DID THESE
THINGS, AND BUT HE DIDN'T
MURDER THE -- THE VICTIM.
WHERE DID THAT COME FROM?
AS I TRIED TO EXPLAIN IN
MY BRIEF I BELIEVE THAT IT
WAS SIMPLY RHETORICAL DEVICE
ON THE PART OF THE DEFENSE
COUNSEL HE WAS SAYING --
DIDN'T HE SPEAK TO THE --
AS COUNSEL I'M TELLING
YOU THAT MY CLIENT USED --
IS GUILT OF THREE OF THESE
FIVE CRIMES BUT HE IS NOT
GUILTY OF THE FIRST TWO, AND
THEN HE WENT INTO A LENGTHY
ARGUMENT THAT WAS BASED
EVERY -- HIS ARGUMENT WAS
BASED ON THE FACTS THAT THE
STATE HAD PRESENTLIED.
DIDN'T THE DEFENSE SPEAK
TO THE POLICE?
THERE -- THERE IS NO
RECORD OF ANY STATEMENT BY
MR. POOLE REGARDING THE
CRIME TO THE POLICE.
MR. POOLE WAS
INTERINTROOID THE POLICE, WE
KNOW THAT WE KNOW.
SO HE DID SPEAK TO THE
POLICE HE WAS INTERVIEWED.
IS TALKING TO THE POLICE

ANYTIME HE EVER ACKNOWLEDGED HE
DID ANYTHING.
THAT'S NOT --
THAT IS --
IN REBUTTAL TO WHAT THE
PROSECUTOR -- WHAT THE DEFENSE
LAWYER SAID, WHICH WAS THAT
HE'S ACKNOWLEDGED HE DID THREE
OF THE CRIMES BUT HE DIDN'T DO
THE REST.
I DON'T, YOU KNOW, AND I'M
PRETTY SENSITIVE TO THESE
COMMENTS ON THE RIGHT TO REMAIN
SILENT.
I DON'T SEE THIS ONE.
YOUR HONOR, THAT'S ONLY THE
FIRST COMMENT.
ALL RIGHT.
BUT LET'S -- WELL, BUT YOU --
THERE ARE A TOTAL --
THAT WAS --
THE FIRST COMMENT WAS NOT
OBJECTED TO.
SO DO YOU AGREE THAT WAS A
FAIR COMMENT?
NO, I DON'T AGREE THAT IT
WAS FAIR COMMENT, BUT --
WELL, WHY NOT?
BUT, THAT COMMENT STANDING
ALONE, THE INTRODUCTORY COMMENT
COULD'VE BEEN CONSIDERED
HARMLESS ERROR.
NO, I WANT TO KNOW WHY IT'S
ERROR AT ALL.
WE'VE GOT TO BE VERY CLEAR.
ANY COMMENT WHICH IS FAIRLY
SUSCEPTIBLE OF BEING
INTERPRETED BY THE JURY AS
BEING A COMMENT ON THE
DEFENDANT'S SILENCE, EITHER AT
TRIAL OR AT THE TIME OF HIS
ARREST.
BUT HE GIVE A CONFESSION,
AND HE HAD ACKNOWLEDGED THREE
THINGS.
THEN YOU -- THAT WOULD BE FAIR
TO TALK ABOUT WHAT HE SAID IN
THE CONFESSION, CORRECT?
OF COURSE.
BUT NOW OUT OF WHOLE CLOTH,
THE DEFENSE LAWYER SAYS WELL,
HE HAS ACKNOWLEDGED IT.
HE DOESN'T SAY YOU CAN FIND HIM
GUILTY OF THESE THREE CRIMES.
HE SAID HE'S ACKNOWLEDGED IT.
ISN'T THAT WHAT THE DEFENSE
LAWYER SAID?
, YES, MA'AM, HE DID, AND
THAT WAS A VERY POOR CHOICE OF
WORDS.
I WOULDN'T HAVE OPENED MY
CLOSING ARGUMENT LIKE THAT.
I DON'T KNOW THE TRIAL ATTORNEY
DID IT.
BUT HE DID.
AND IF YOU -- I, IF THE
PROSECUTOR HAD LIMITED HIS
RESPONSE TO JUST AS THE, THE
DEFENSE ATTORNEY MADE ONE
STATEMENT THAT HE ACKNOWLEDGES
THAT HE'S GUILTY OF THESE THREE
FELONIES BUT NOT THE TWO MOST
SERIOUS ONES, IF THE PROSECUTOR
HAD MADE JUST THE FIRST
STATEMENT TO WHICH DEFENSE
COUNSEL DID NOT OBJECT, THE,
THE, THE DEFENSE ARGUMENT CAME
FROM FANTASY LAND AND THERE WAS
NO EVIDENCE IN THE CASE THAT AT
ANY TIME EITHER IN THIS TRIAL
OR ANYWHERE ELSE MR.^POOLE EVER
ACKNOWLEDGED HE DID ANYTHING.
NOW THAT IS CLEARLY A COMMENT
ON MR.^POOLE'S SILENCE, BOTH
HUSBAND FAILURE TO TESTIFY AT
TRIAL AND HIS SILENCE AT THE
TIME OF HIS --
YOU GO BACK AND FORTH ON
THIS BUT YOU SAID THERE'S
ANOTHER COMMENT THAT YOU'RE
GOING TO SAY IS REALLY --
WELL, THE POINT IS, DEFENSE
COUNSEL DIDN'T OBJECT THEN AND
THE PROSECUTOR DROPPED IT AND
WENT ON FOR SEVERAL PAGES OF
ARGUMENT AND THEN HE RETURNED
TO THE SUBJECT.
STARTING AT TRANSCRIPT PAGE
2840 AND CONTINUING TO 2841.
THE PROSECUTOR MADE
APPROXIMATELY FOUR REPEATED
ASSERTIONS THAT THERE WAS NO
EVIDENCE TO WHAT MR.^POOLE
SAID.
LET ME ASK YOU A QUESTION.
PRIOR TO CAN ANY OF THE
ATTORNEYS GETTING UP AND MAKING
THEIR CLOSING ARGUMENTS, THE
JUDGE INSTRUCTS THE JURIES THAT
WHAT THE ATTORNEYS SAY IS NOT
EVIDENCE.
ABSOLUTELY.
CORRECT?
AND SO, I HAVE A TROUBLE -- I
HAVE PROBLEMS WITH THE LAST
COMMENT.
AND AS FAR AS THE OTHER ONE
IT SEEMS THAT WHAT THE STATE
ATTORNEY IS ARGUING HE SAYS
THAT'S ARGUMENT.
-- INSTRUCTION ON THE LAW AS
THE JUDGE GIVES IT AND WHAT THE
ATTORNEYS SAY IS NOT ARGUMENT.
IT'S JUST -- JUSTICE PARIENTE
WAS SAYING WHAT WE HAVE HERE IS
NOT A FACT CONCEDED IN OPENING
STATEMENT.
NOT A FACT CONCEDED DURING THE
PRESENTATION OF EVIDENCE IN THE
CASE.
BUT AN ARGUMENT PRESENTED AND A
FACT SUBMITTED, QUOTE, UNQUOTE.
FROM THERE, HE WENT ON WITH A
VERY LENGTHY CLOSING ARGUMENT,
UTILIZING THE STATE'S OWN
EVIDENCE IN WHICH HE TOLD THE
JURY A, A DIFFERENT -- JURY A
DIFFERENT VERSION OF HOW THINGS
MAY HAVE HAPPENED AND ONE OF
THE THINGS HE RELIED UPON WAS
TWO STATEMENTS BY THE SURVIVING
VICTIM THAT THERE WERE TWO
BLACK MEN WHO BROKE INTO HER
TRAILER THAT NIGHT AND
COMMITTED THESE CRIMES, AND THE
PROSECUTOR SAYS, MR.^-- IS
ARGUING ALL THESE THINGS BUT
THERE IS NO EVIDENCE MR.^POOLE
EVER SAID, HEY, EVERYBODY ELSE
WAS THERE BEFORE ME AND THERE
WAS NO EVIDENCE MR.^POOLE EVER
SAID WELL I WENT IN THERE AND
RAPED HER AND LEFT HER AND
SOMEBODY ELSE CAME IN AND BEAT
THEIR HEADS IN.
THERE'S NO EVIDENCE OF THAT
EITHER.
THAT'S ARGUMENT BUT WHEN YOU
LOOK AT WHAT THE TESTIMONY IS
AND WHAT THE PHYSICAL EVIDENCE
IS AND WHAT THE PHOTOGRAPHS
ARE, THERE IS NO EVIDENCE TO
SUPPORT THAT THEORY.
IN THE FIRST PLACE WHAT HE IS
SAYING IS UNTRUE BECAUSE
THERE'S PLENTY OF EVIDENCE TO
SUPPORT MR.^DIVING'S THEORY.
HIS THEORY WAS BASED ON THE
STATE'S OWN EVIDENCE.
THEN THE PROSECUTOR CONCLUDES
THIS PASSAGE BY SAYING AND IF
MR.^POOLE WANTS TO TELL THE
STATE DETECTIVE GRISE THAT
SOMEBODY ELSE HELPED HIM COMMIT
THIS CRIME THEN LET HIM COME
FORWARD.
WE KNOW, SO THAT'S
IMPROPER.
LET'S -- I WOULD THINK
MR.^BROWNE IS GOING TO GET UP
AND HE WEPT TOO FAR THERE.
I DON'T KNOW BUT USUALLY.
LET'S ASSUME THAT'S IMPROPER
BECAUSE HE CAN'T SAY THAT HE
HAS TO COME FORWARD WITH
EVIDENCE.
BY GOING BACK TO THIS CASE IT
IS NOT HARMLESS BEYOND A
REASONABLE DOUBT?
BECAUSE THE PROSECUTOR WAS
URGING THE JURY TO DISREGARD
MR.^POOLE'S RIGHT TO SILENCE IN
ORDER TO GET THE JURY TO
COMPLETELY DISREGARD HIS ENTIRE
DEFENSE.
HIS ENTIRE DEFENSE WAS BASE
UPON THE THEORY BASED UPON THE
SURVIVING WITNESSES' OWN
STATEMENTS THAT THERE WITH TWO
PEOPLE IN HER TRAILER.
BUT UNDER --
-- HER THEORY WAS THERE
ANOTHER PERSON WHO HAD A MOTIVE
AND OPPORTUNITY TO COMMIT THE
ACTUAL MURDER.
IN DETERMINING WHETHER THERE
WAS HARMLESS IRERROR, DON'T WE
HAVE TO LOOK AT ALL THE
CIRCUMSTANCES AND ALL THE
EVIDENCE PRESENTED, INCLUDING
THE DNA EVIDENCE THAT WAS
PRESENTED AND INCLUDING THE
FOOTPRINTS THAT WERE FOUND?
YOUR HONOR, YES YOU HAVE TO
LOOK AT ALL THE EVIDENCE AND I
MIGHT ADD IN THE STATE v.
HAWKINS, THE STATE RULED THAT
IN PART OF DETERMINING THE
ENTIRE RECORD IN DETERMINING
WHETHER ERROR IS HARMLESS IS TO
CONSIDER OTHER IMPROPER CONDUCT
OR STATEMENTS THAT WERE NOT
OBJECTED TO, WHICH MEANS THAT
EVEN IF YOU FOCUS SOLEY ON THE
FINAL STATEMENT AS BEING THE
ONLY ONE OBJECTED TO, YOU STILL
HAVE TO CONSIDER THE
PROSECUTOR'S OTHER STATEMENTS
ABOUT MR.^POOLE'S SILENCE IN
DETERMINING WHETHER THE ERROR
IN CHALLENGING MR.^POOLE TO GET
UP AND TELL HIM WHO DID IT.
AND DECIDING WHETHER THAT'S
HARMLESS, AND.
LET ME ASK YOU.
-- CREATED A THEME HERE OVER
TWO PAGES WHERE HE IS ASKING
THE JURY TO DISREGARD
MR.^POOLE'S RIGHT TO REMAIN
SILENT.
AND THAT, THAT'S SO ABSOLUTELY
IMPROPER.
LET ME ASK YOU A QUESTION.
HERE, DEFENSE COUNSEL OBJECTED,
MOVED FOR A MISTRIAL.
THE TRIAL JUDGE NEVER REALLY
RULED ON THE OBJECTION BUT
DENIED THE MOTION FOR MISTRIAL,
CORRECT?
YES, YOUR HONOR.
SO WHAT STANDARD DO WE
APPLY?
ABUSIVE DISCRETION.
OKAY.
AND THE POINT IS THOUGH THAT
COMMENT ON SILENCE ARE REGARDED
AS BEING SO SUSPECT THAT THE
ORDINARY REACTION TO A COMMENT
ON SILENCE, THE ORDINARY
REACTION TO THE PROSECUTOR
VIOLATING THE CONSTITUTION THAT
HE'S SWORN TO UPHOLD IS TO
REVERSE.
AND IT'S ONLY IN THOSE FEW
CASES WHERE THE STATE CAN
CONCLUSIVELY SHOW THAT THE
ERROR IS HARMLESS BEYOND ANY
DOUBT AND COULD NOT HAVE
POSSIBLY AFFECTED THE VERDICT.
WELL, IF WE, MR.^HELMS, IF
WE DECIDE THAT THOSE ORIGINAL
ARGUMENTS, THE FIRST COUPLE OF
ARGUMENTS THAT STATEMENTS THAT
WERE MADE BY THE PROSECUTOR ARE
NOT ERROR BECAUSE DEFENSE
COUNSEL DID IN FACT STAND UP
AND SAY HE ACKNOWLEDGES AND IF
WE FIND THAT IT WAS A FAIR
COMMENT OR RESPONSE TO THAT,
LET'S SAY, THERE'S NOTHING IN
THIS RECORD THAT SAYS HE EVER
ACKNOWLEDGES THAT HE DID THE
RAPE, THAT HE DID THE BURGLARY,
THAT HE DID THE ROBBERY.
JUST LISTEN TO THE QUESTION.
[LAUGHTER]
I AM.
OKAY.
SO IF WE SAY THOSE COMMENTS
WERE FAIR COMMENTS ON, IN
RESPONSE IN RESPONSE TO THE
DEFENSE ARGUMENT AND THAT ONLY
THE LAST COMMENT IS IN FACT AN
IMPROPER COMMENT THEN WHERE
DOES THAT TAKE YOU WITH THE
COMMENT ON THIS ERROR ANALYSIS?
THEN WE WOULD NOT HAVE TO
CONSIDER THOSE OTHER COMMENTS
BECAUSE WE ARE SAYING THEY ARE
FINE, THEY WERE FAIR COMMENTS,
SO IF WE LEFT WITH JUST THAT
ONE COMMENT AT THE END, THAT
SAYS SOMEONE HELPED HIM COMMIT
THIS CRIME AND HE SHOULD COME
FORWARD BECAUSE, AND THEN THE
OBJECTION.
SO IF THAT'S JUST THAT COMMENT,
WHERE ARE WE?
IN A BORDERLINE SITUATION
WHERE YOU HAVE TO USE YOUR
DISCRETION IN EXAMINING THE
CASE TO DETERMINE WHETHER THAT
COULD'VE BEEN HARMLESS OR NOT.
BUT I WOULD LIKE TO POINT OUT
THAT IT WAS THE ONLY VERY FIRST
COMMENT HE MADE WHERE THE
PROSECUTOR SAID THERE IS NO
EVIDENCE THAT MR.^POOLE
ACKNOWLEDGED ANYTHING.
IN THE TWO PAGES LEADING UP TO
LETTING MR.^POOLE COME FORWARD,
THE PROSECUTOR WAS SAYING THERE
WAS NO -- THERE WAS NO EVIDENCE
THAT ANOTHER MAN WAS INVOLVED.
THAT'S NOT OO THREW STATEMENT.
THERE WAS EVIDENCE.
-- THAT'S NOT TRUE
STATEMENT.
THAT'S MISSTATED AS OPPOSED
TO MISSTATING FACTS IN THE
CASE.
PLEASE YOU HAVE GOT TO LET
THIS BE A DIALOGUE HERE, OKAY?
I KNOW YOU FEEL PASSIONATELY.
YOU'RE A EXPERIENCED LAWYER, AN
EXCELLENT LAWYER BUT WE HAVE
GOT TO GET TO THE BOTTOM OF
THIS.
THIS IS MY CONCERN, IF A
DEFENSE LAWYER GETS UP AND SAYS
MY CLIENT SAYS THAT THIS WAS
SELF-DEFENSE, WHICH IS
SOMETHING THEY HAVE TO
ESTABLISH, WELL THEN AT THAT
TIME POINT, YOU CAN SAY WELL
THERE IS NO EVIDENCE IN THIS
RECORD OF SELF-DEFENSE.
IF IT'S, IF, IF THE DEFENSE
LAWYER GOT UP AND SAID MY
CLIENT ACKNOWLEDGED HE MADE --
COMMITTED THE MURDER BUT HE DID
IT IN SELF-DEFENSE, THE,
PROSECUTOR CAN GET UP AND SAY
THERE IS NO EVIDENCE THAT HE
ACKNOWLEDGED IT.
THAT'S DIFFERENT THAN PUTTING
THE STATE TO ITS BURDEN OF
PROOF, WHICH IS THAT THE
MURDERER, IT MAY HAVE BEEN
SOMEONE ELSE IN THAT PLACE WITH
MR.^POOLE BUT THE MURDERER WAS
MR.^POOLE.
SO I AM GOING BACK TO --
BECAUSE I THINK YOU ARE -- YOU
MAKE A COMPELLING POINT THAT IF
WE DO LOOK AT THIS IN ANOTHER
LIGHT WITH REGARD TO -- WITHOUT
REGARD TO WHAT THE DEFENSE
LAWYER SAID WHICH WAS HIS THEME
WAS TO DISREGARD HIS RIGHT TO
REMAIN SILENT, THEN OF COURSE
WE ARE INTO A HIGH-RISK
CONSTITUTIONAL ERROR BUT I FEEL
LIKE YOU HAVE GOT TO ADDRESS
THE FACT, AND I DON'T KNOW THAT
YOU'VE ADEQUATELY DONE IT, THAT
UP UNTIL THE LAST POINT THAT IS
IF MR.^POOLE WANTS TO TELL THE
STATE SOMEONE ELSE HELPED HIM
COMMIT THE CRIME AND INFORWARD
A LIGHT WENT ON FOR THE DEFENSE
LAWYER WHO OBJECTS BUT LEADING
UP TO IT, I DON'T SEE IT AS A
THEME TO DISREGARD HIS RIGHT TO
REMAIN SILENT.
THE THEME SEEMS TO BE OF THE
DEFENSE ATTORNEY'S MAKING BY
SAYING THAT HE ACKNOWLEDGED
THAT HE COMMITTED CERTAIN
CRIMES BUT NOT OTHERS, WHICH IS
DIFFERENT THAN SAYING THERE IS
NO EVIDENCE THAT THIS CRIME WAS
COMMITTED BY TWO MEN.
MR.^POOLE MAY HAVE BEEN ONE OF
THEM, BUT HE WASN'T THE OTHER.
DO YOU NOT SEEING THAT AS BEING
DIFFERENT IN KIND AND THEREFORE
PROMPTING WHAT IS REALLY A
PROPER RESPONSE TO THAT
ARGUMENT BY THE DEFENSE LAWYER?
YOUR HONOR, I MIGHT AGREE
WITH YOU REGARDING THE
PROSECUTOR'S OPENING STATEMENT
WHERE, WHERE HE FIRST SAID THAT
THERE'S NO EVIDENCE THAT
MR.^POOLE ACKNOWLEDGED.
THAT BUT AS HE PROGRESSED IN
HIS ARGUMENT, HE WAS ATTACKING
THE DEFENSE ARGUMENT ON THE
BASIS THAT THERE WAS NO
EVIDENCE TO SUPPORT A DEFENSE
ARGUMENT THAT WAS BASED ON A
DIRECTLY UPON THE EVIDENCE THAT
HAD BEEN PRESENTED --
NOW LET ME ASK --
AND IN THE PROCESS --
OKAY.
HE KEPT REFERING TO
MR.^POOLE'S FAILURE TO SAY
THINGS.
NOW MAYBE THE KEY IS
THIS:^WHEN HE CONTINUES, HE
SAYS, MR.^POOLE TALKED TO THE
POLICE, WHICH IS WHAT JUSTICE
CANTERO ASKED YOU ABOUT
EARLIER.
DID HE TALK TO THE POLICE?
WELL, WE, WE KNOW THAT HE
WAS TAKEN TO THE POLICE STATION
AND QUESTIONED.
DID HE INVOKE HIS RIGHT TO
REMAIN SILENT.
THE DAY FOLLOWING THE
MURDER.
DID HE INVOKE HIS RIGHT TO
REMAIN SILENT.
WE DON'T KNOW.
BECAUSE THEN THAT WOULD BE,
IF HE'S TALKED TO THE POLICE
AND HE INVOKES HIS RIGHT TO
REMAIN SILENT, NOW YOU START TO
GET INTO SOME SERIOUS QUESTION
ABOUT SAYING WELL HE TALKED TO
THE POLICE.
THE IMPLICATION IS, AND THEN HE
DIDN'T TELL THEM THIS VERSION.
THAT I WOULD AGREE WITH YOU IF
THAT'S WHAT HAPPENED THAT HE
NEVER TALKED TO ANYTHING BUT HE
INVOKED HIS RIGHT -- YOU ARE
SAYING WE DON'T KNOW THAT IN
THIS RECORD.
WE DON'T KNOW THAT IN THE
RECORD, BECAUSE -- THE, I WOULD
PRESUME IF ANYTHING THAT THE AT
THE VERY LEAST, MR.^POOLE DID
NOT TELL THE POLICE THE FIRST
DAY HE WAS INTERVIEWED ANYTHING
THAT WAS DIRECTLY INCRIMINATED
OR THIS PROSECUTOR WOULD'VE HAD
THAT EVIDENCE BEFORE THE JURY.
HE PRESENTED THE ONLY EVIDENCE
--
BUT ARE YOU SAYING --
-- THAT WAS PRESENTED TO THE
JURY ABOUT THAT INITIAL
CONFRONTATION BETWEEN THE
POLICE AND MR.^POOLE WITH
MR.^POOLE CONSENTED TO A SEARCH
OF HIS RESIDENCE.
HE WENT TO THE RESIDENCE WITH
POLICE.
AND HE ALLOWED THEM TO TAKE A
SHIRT AND A PAIR OF SHOES.
MR.^HELM, YOU'RE RAPIDLY
RUNNING OF OUR YOUR TIME AND I
KNOW YOU HAD ANOTHER ISSUE
REGARDING CROSS-EXAMINATION OF
DEFENSE WITNESSES.
I WOULD LIKE TO HEAR YOUR
ARGUMENT ON THAT.
YES, YOUR HONOR.
REGARDING THE
CROSS-EXAMINATION OF DEFENSE
WITNESSES.
THE FIRST INSTANCE -- THERE ARE
THERE WERE THREE INSTANCE --
THE FIRST THREE THINGS THE
PROSECUTOR DID IN CROSS
EXAMINATION OR MAYBE NOT THE
MOST IMPORTANT.
I'M SORRY.
I'M GETTING MYSELF TURNED
AROUND.
WELL, THEN LET ME JUST ASK
YOU QUESTION ABOUT IT.
CAN YOU ADDRESS THE
CROSS-EXAMINATION I THINK IT
WAS AFTER POOLE'S BROTHER
TESTIFIED, AND HE SAID THAT
POOLE WAS A KIND, LOVING PERSON
THAT TO BE HERE TODAY WOULD
NOBODY FROM LOUISIANA AREA
BELIEVE THIS, THAT HE'S HERE IN
THIS SITUATION.
AND THE PROSECUTOR ON
CROSS-EXAMINATION ASKED HIM IF
YOU'RE THAT CLOSE TO YOUR
BROTHER, DO YOU KNOW IF THIS
WAS THE FIRST TIME HE EVER GOT
ARRESTED WHEN HE GOT ARRESTED
FOR THIS CRIME.
NO?
YOU DON'T KNOW?
NO IT'S NOT THE FIRST TIME HE
GOT ARRESTED.
HE GOT ARRESTED IN GEORGIA,
SOUTH CAROLINA, TEXAS, IS WHAT
THE PROSECUTOR SAID.
YOU ARE ARGUING THAT THAT IS
IMPROPER CROSS-EXAMINATION?
WELL.
AND A VIOLATION OF THEIR
PRETRIAL AGREEMENT THAT THEY --
THERE WAS A MOTION IN LIMINY
TO EXCLUDE ANY EVIDENCE OF
MR.^POOLE'S PRIOR CRIMINAL
RECORD.
THE DEFENSE WAIVED NO
SIGNIFICANT PRIOR RECORD AS A
MITIGATING CIRCUMSTANCE.
THE PROSECUTOR ASKED
MR.^POOLE'S BROTHER IF HE HAD
BEEN ARRESTED BEFORE.
MR.^POOLE'S BROTHER SAID YES.
THAT HE SAID OR NO THAT IT
WASN'T THE FIRST TIME.
RIGHT.
AND THE PROSECUTOR ASSERTS
THAT HE WAS ARRESTED IN THREE
DIFFERENT STATES.
ALL RIGHT.
SO LET'S TAKE THAT STEP BY
STEP.
ARE YOU CONCEDING THEN THAT
BECAUSE POOLE'S BROTHER GOT TO
TESTIFY THAT POOLE WAS A KIND,
LOVING PERSON THAT ESSENTIALLY
PEOPLE WERE SURPRISED THAT HE
WAS IN THIS SITUATION THET THE
FIRST QUESTION DO YOU KNOW IF
THIS WAS THE FIRST TIME HE EVER
GOT ARRESTED AND THE FIRST
ANSWER NO, IT'S NOT THE FIRST
TIME.
THAT WOULD'VE BEEN OKAY
CROSS-EXAMINATION.
NO, SIR.
VIOLATION OF THE COURT'S --
ALL RIGHT.
GRANTING THE MOTION IN
LIMINY.
WELL THEN I GUESS WE ARE
COMING BACK IN FULL CIRCLE TO
THE CHIEF JUSTICE'S FIRST
QUESTION THAT IF THERE IS
TESTIMONY THAT THE DEFENSE
PRESENTS THAT HE WAS A KIND,
LOVING PERSON, THAT WE ARE WE
WERE ALL SURPRISED THAT HE IS
IN THIS SITUATION, WE ARE ALL
SHOCKED, THAT REGARDLESS OF
WHAT THE DEFENSE PRESENTS
BECAUSE THE STATE AGREED NOT TO
PRESENT EVIDENCE OF THE PRIOR
ARREST, THAT NOW THE PART --
THE DEFENSE CAN SAY ANYTHING
AND THE PROSECUTOR CAN'T SAYING
ON CROSS-EXAMINATION AND
IMPEACH THAT TESTIMONY WITH
THAT EVIDENCE.
THIS WAW NOT VALID
IMPEACHMENT.
IN GERALDS v. STATE, THIS
COURT HAS SAID THAT IN A
CAPITAL CASE PENALTY PHASE
PROCEEDING YOU CAN'T IMPEACH
DEFENSE WITNESSES BY ASKING
QUESTIONS ABOUT NONSTATUTORY
AGGRAVATION IN SPECIFICALLY
NONVIOLENT PRIOR CRIMINAL
OFFENSES.
WELL, PLUS, I DON'T KNOW ANY
THING WHERE YOU CAN IMPEACH
WITH ARRESTS HE DIDN'T JUST SAY
YOU KNOW HE'S CONVICTED.
HE WAS ARRESTED WELL WHAT DOES
THAT SAY -- I DON'T KNOW IF YOU
WERE MAKING A DISTINCTION
BETWEEN THE FACT THAT SOMEONE'S
BEEN ARRESTED.
WELL, AND THAT'S TO ME, I
MEAN, EVEN IN A REGULAR
CRIMINAL CASE YOU CAN'T UNDER
ANY CIRCUMSTANCE IMPEACH WITH
ARREST.
RIGHT.
OF COURSE.
BUT IT WAS IMPROPER IMPEACHMENT
IN ITS ENTIRETY.
BUT IT'S SPECIFIC.
IT'S PARTICULARLY EGREGIOUS
HERE BECAUSE THE PROSECUTOR
HIMSELF HAD AGREED NOT TO GO
INTO THIS.
SO THE PROPER PROCEDURE HERE
WOULD'VE BEEN FOR THE STATE
ATTORNEY TO SAY, YOUR HONOR,
CAN WE TAKE A BREAK AND HAVE A
SIDE BAR AND ASK THE JUDGE
GIVEN THE FACT OF THE AGREEMENT
ON THE MOTION IN LIMINY.
WHAT THE STATE SHOULD'VE DONE
IS SAID YOUR HONOR, I THINK THE
DEFENSE HAS OPENED THE DOOR,
INQUIRED OF THE TRIAL JUDGE I
WOULD LIKE TO GO INIT THIS AND
HANDLE THAT OUTSIDE THE
PRESENCE OF THE JURY?
STEAD OF GET GETTING INTO WHAT
JUSTICE PARIENTE SAID IS
CLEARLY IMPROPER IMPEACHMENT.
THAT CERTAINLY WOULD'VE BEEN
FAR BETTER PROCEDURE ON HIS
PART BECAUSE THE WAY IT
ACTUALLY HAPPENED, HE WAS IN
CLEAR VIOLATION OF THE COURT'S
PRETRIAL ORDER.
THAT HE HAD AGREE TO.
AND YES, IF HE FEELS -- IF HE
FELT THAT THE CIRCUMSTANCES
THEN CHANGED BECAUSE OF THE
INFORMATION ELICITED FROM THE
WITNESS BY THE DEFENSE THEN HE
SHOULD'VE ASKED THE COURT TO
REVISIT ITS RULING RATHER THAN
TAKING IT UPON HIMSELF TO
VIOLATE --
YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
TIME.
I'M JUST ALERTING YOU TO WHERE
YOU ARE IN TIME.
WELL, DOES THE COURT HAVE
ANY OTHER QUESTION THEY WOULD
LIKE TO ADDRESS RIGHT NOW.
JUSTICE QUINCE PROBABLY
DOES.
I WOULD REALLY LIKE YOU TO
ADDRESS THE ISSUE OF THE LACK
OF REMORSE.
BECAUSE AS I READ THIS RECORD,
THERE REALLY WAS NO-NO
OBJECTION TO THE STATE'S
EXAMINATION OF THE WITNESSES ON
THAT PARTICULAR ISSUE THAT YOU
HAVE RAISED AND SO HOW ARE WE
TO DEAL WITH THE FACT THAT
THERE WAS NO CONTEMPORANEOUS
OBJECTION HERE?
YOUR HONOR, THEN AFTER THE
THIRD INCIDENT IMMEDIATELY
AFTER THE THIRD INCIDENT WHERE
THE COURT ASKED ABOUT REMORSE
THE COURT TOOK A 20-MINUTE
RECESS AND IMMEDIATELY
FOLLOWING THE 20-MINUTE RECESS
DEFENSE COUNSEL DID OBJECT.
AND SAID WHAT, EXACTLY?
AND SAID THAT, THAT HE TOLD
THE COURT THAT HE WAS CONCERNED
BECAUSE THE PROSECUTOR KEPT
ASKING ABOUT LACK OF REMORSE,
AND IT WASN'T PROPER.
BUT, BUT HE --
ISN'T THAT AN OBJECTION?
THE QUESTION IS, WAS IT
REALLY AN OBJECTION THAT HE WAS
MAKING?
IT SEEMS TO ME THAT HE NEVER
REALLY GOT TO THAT POINT.
YOUR HONOR, DOES THE DEFENSE
ATTORNEY HAVE TO USE THE
EXPRESS LANGUAGE.
WELL, I THINK HE HAS TO
SAY SOMETHING.
-- TO OBJECTION?
WHAT DID HE ASK THE COURT TO
DO IN RESPONSE TO HIS CONCERN?
I MEAN, DID HE ASK THE COURT TO
GIVE AN INSTRUCTION?
DID HE ASK THE COURT FOR A
MISTRIAL?
I MEAN, HE EXPRESSES HIS
CONCERN AND THEN WHAT DOES HE
ASK THE COURT TO DO?
QUITE FRANKL, IT SLIPS MY
MIND.
IF YOU COULD TAKE JUST A
SECOND, I CAN FIND IT.
MY CONCERN IS HOW DO WE
RESPOND IF HE DOESN'T ACTUALLY
ASK THE COURT TO CORRECT IT.
I THOUGHT IT WAS SOMETHING MORE
TO THE EFFECT OF THE PROSECUTOR
SAYS WELL I WON'T GO INTO THAT
ANYMORE.
WELL, THE PROSECUTOR DID SAY
THAT BUT THE PROSECUTOR WAS
ALSO SAYING THAT HE WAS
ENTITLED TO ANTICIPATORY
REHABILITATION, THAT HE WAS,
THE DEFENSE HAD ASKED NOTHING
WHATSOEVER ABOUT REMORSE FOR
THE CRIMES.
AND THE PROSECUTOR IMPROPER
RAISED THE SUBJECT OF RE MORSE
FOR THE CRIMES WHICH HE'S NEVER
SUPPOSED TO DO UNLESS THE
DEFENSE PUTS ON DEFENSE THAT HE
IS REMORSEMENT SO IT WAS
ALREADY IN VIOLATION OF THE LAW
JUST BY ASKING THE QUESTION.
AND, AND THEN HE HAD TO SAY I
KNOW I CAN'T ARGUE THAT UNLESS
THE DEFENSE GOES INTO IT, BUT I
JUST THOUGHT I WOULD ASK ABOUT
IT IN CASE THEY DECIDE TO GO
INTO IT LATER ON.
AND THEY DIDN'T OBJECT.
AND THE PROSECUTOR WAS GOING TO
GET AWAY WITH WHATEVER HE CAN
GET AWAY WITH.
DEPENDING ON WHETHER DEFENSE
COUNSEL WAS THINKING CLEARLY
ENOUGH TOONG TO WHAT HE WAS
ASKING -- TO OBJECT TO WHAT HE
WAS ASKING.
WHAT ABOUT THE TATTOO?
WELL THE TATTOO, THE, THE
STATEMENT THUG LIFE, THERE WAS
NEVER EVIDENCE IN THE TRIAL, NO
EVIDENCE IN THE TRIAL WHAT THE
TATTOO SAID, THERE HAD BEEN
EVIDENCE THAT MR.^POOLE HAD
TATTOOS, AND THE ARRESTING
OFFICER HAD CHECKED FOUR
TATTOOS TO MAKE SURE THEY HAD
THE RIGHT DYE BUT THERE WAS
NEVER ANY EVIDENCE AS TO WHAT
THE TATTOO SAID.
THE PROSECUTOR ASKED
MR.^POOLE'S BROTHER IF HE KNEW
THAT HE HAD TATTOOS, HE SAID
YES.
AND HE ASKED WHAT THE TATTOO
SAID.
MR.^POOLE'S BROTHER SAID HE HAD
ONE THAT SAID MP.
THEN HE ASKED DOESN'T HE ASK
THUG LIFE ACROSS HIS ABDOMEN HE
WAS CONSTRUING FACTS, HE IS
CONVEYING INFORMATION TO THE
JURY THROUGH THE QUESTIONING OF
DEFENSE WITNESSES BY ASKING
LEADING QUESTIONS.
AND ADMITTED HE HE'S ENTITLED
TO ASK LEADING QUESTIONS BUT
HE'S NOT ENTITLED TO PUT IN
PREJUDICIAL FACTS IN QUESTIONS
WHEN THERE IS NO EVIDENCE OF
THE FACT.
TELL US WHETHER OR NOT THE
PROSECUTOR AFTER THE QUESTIONS
ABOUT REMORSE AND PRIOR RECORD
AND THE TATTOO ALLUDED TO THOSE
THINGS AGAIN AFTER THAT?
IN ARGUMENT OR IN ANY WAY.
I DON'T BELIEVE SO.
OKAY.
HE BROUGHT UP IN CLOSING --.
THANK YOU.
GOOD MORNING.
SCOTT BROWN BROWNE FOR THE
STATE OF FLORIDA.
GOOD MORNING, MR.^BROWNE AND
IF MR.^POOLE WANTS TO TELL THE
STATE AND DETECTIVE GRISE THAT
SOMEBODY HELPED HIM COMMIT THIS
CRIME THEN LET HIM COME
FORWARD.
YOUR HONOR, UNLIKE THE OTHER
COMMENTS MENTIONED BY DEFENSE
COUNSEL TODAY, THAT COMMENT WAS
IN FACT OBJECTED TO AND THE
TRIAL COURT WAS CONFRONTED WITH
IT.
THE PROSECUTOR SAID I WILL
REPHRASE THE ARGUMENT.
HE DID NOT AGAIN --
WELL, WAIT A MINUTE.
WAIT, WAIT.
WAIT.
IS THAT A REMEDY ONCE SOMEONE
HAS, HAS REALLY DIRECTLY
ADACKED AND COMMENTED UPON --
ATTACKED AND COMMENT UPON ONE'S
CONSTITUTIONAL RIGHT TO REPLAIN
SILENT IN SUCH A DIRECT WAY?
I MEAN, THAT'S PROBABLY THE
MOST DIRECT WAY THAT I HAVE
SEEN SINCE I HAVE BEEN ON THE
COURT.
LET HIM COME FORWARD.
COME ON FORWARD AND TESTIFY IF
THAT'S --
YOUR HONOR, THIS IS ARGUMENT
IN DIRECT REBUTTAL TO THE
DEFENSE COUNSEL'S --
OKAY SO YOU ARE NOT GOING TO
AGREE THAT THAT'S IMPROPER
ARGUMENT.
-- ANYTIME YOU SAY THE
DEFENSE HAS TO -- DEFENDANT HAS
TO COME FORWARD, YOU ARE IN
PERIL AND I UNDERSTAND THE
THEME OF THE PROSECUTOR'S
ARGUMENT WAS PROBABLY EVEN IF
THAT -- PROPER EVEN IF THAT
PARTICULAR LANGUAGE WAS ILL
ADVISED BUT WHAT I AM TELLING
THIS COURT IS THAT THAT IS A
SINGLE OBJECTION TO COMMENT --
WELL, THIS IS MY PROBLEM
BECAUSE FIRST OF ALL, I THINK
WE HAVE GOTTEN TO WHERE THE
FIRST STATEMENT, THERE IS NO
EVIDENCE IN THE CASE THAT HE
EVER ACKNOWLEDGED AND DID
ANYTHING, AND I AM ALREADY
THINKING THAT OF THE 3850 WHERE
THEY GO, WELL HE, THE WORDS HE
USED NOW INVITED THESE COMMENTS
AND SCREWED UP THE TRIAL.
SO WE HAVE TO THINK AHEAD HERE.
I THINK THE FIRST COMMENT IS
FAIR REBUTTAL.
THIS IS WHAT -- AND I DIDN'T
PICK IT UP UNTIL I LOOKED AGAIN
IS THAT WHEN HE CONTINUED, HE
SAYS, MR.^POOLE TALKED TO THE
POLICE.
NOW WHAT IS AT LEAST MR.^HELM
IS SAYING IS THERE ISN'T A
CONFESSION IN THIS CASE.
THERE'S A NOTHING.
AND SO WE CAN PRESUME THAT
SINCE HE DIDN'T CONFESS HE MAY
HAVE ACTUALLY AVAILED HIMSELF
OF HIS RIGHT TO REMAIN SILENT
BUT WHAT SO BY SAYING THEY
TALKED TO THE POLICE, HE IS
SAYING NO EVIDENCE EVER SAID,
HEY, SOMEONE ELSE IS INVOLVED
AND MY CONCERN THERE AND IT
LEADS UP TO THAT LAST STATEMENT
IS THAT BY THINKING IT TO THAT
HE TALKED TO THE POLICE, HE IS
DIRECTLY PUTTING IN FRONT OF
HIM THAT HE DIDN'T HAVE A RIGHT
TO REMAIN SILENT AT THAT TIME.
IF HE HAD A THEORY THAT SOMEONE
ELSE COMMITTED THE CRIME, HE
WOULD HAVE TO COME FORWARD AND
THAT'S WHAT EVENTUALLY IS WHAT
CAUSES THE OBJECTION.
SO IN, WITH THAT IN MIND, NOT
THAT HE OPENED THE DOOR BUT DID
HE OPEN THE DOOR TO SAY WELL, I
MEAN, COULD THE PROSECUTOR SAID
HAVE, -- HAVE SAID, LISTEN, HE
TALKED TO POLICE.
HE INVOKED HIS RIGHT TO REMAIN
SILENT.
IF THAT POINT HE HAD KNOWN
THERE WERE OTHER PEOPLE DOING
THE HAD TO TELL THE POLICE AT
THAT TIME.
I THINK YOU'D AGREE THAT WAS
WRONG BUT ISN'T THIS
ESSENTIALLY THE SAME THING THEY
ARE SHOWING HE DIDN'T HAVE THE
RIGHT TO REMAIN SILENT.
HE HAD TO TELL THAT VERSION AT
THAT POINT OR HE WAS, THERE
WOULD BE NO CREDIBILITY TO IT.
NO, YOUR HONOR, AND IN FACT
WHAT THE PROSECUTOR WAS DOING
IN THIS CASE.
THERE WAS TESTIMONY THAT MARK
POOLE WAS -- TALKED TO THE
POLICE, HE COOPERATED, HE GAVE
A BLOOD SAMPLE.
HE GAVE HIM CONSENT TO SEARCH
THE TRAILER.
WHAT THE PROSECUTOR WAS SAYING
IMPROPERLY IN THIS CASE IS WHEN
DEFENSE COUNSEL GETS UP THERE
AND SAYS MARK POOLE ADMITS TO
COMMITING A BURGLARY.
HE ADMITS TO COMMITING A SEXUAL
BATTERY, OR HE SAID IT WAS SEX
AGAINST MRS.^WHITE, HER WILL.
WHEN DEFENSE COUNSEL IS SAYING
THAT HE IS OBJECTING HIMSELF AS
A WITNESS AND THE PROSECUTOR
WAS CERTAINLY ENTITLED TO SAY
REFUTE THE EVIDENCE THAT WAS
ADMITTED AT TRIAL.
DID YOU HEAR ANYONE AT ANY TIME
SAY DID MARK POOLE ADMIT THAT
HE COMMITTED THESE THREE
OFFENSES BUT NOT, NOT --
SO BECAUSE THE LAWYER WAS
USED ILL ADVISED WORDS INSTEAD
HE COULD'VE SAID WE CERTAINLY
CAN ACKNOWLEDGE THAT THERE IS
EVIDENCE THAT MR.^POOLE
COMMITTED THE SEXUAL BATTERY
BUT THERE IS NO EVIDENCE HE
COMMITTED THE MURDER, THAT
WOULD NOT HAVE OPENED THE DOOR.
DO YOU AGREE WITH THAT?
PROBABLY NOT, YOUR HONOR.
SO NOW WE'RE IN A SITUATION
TO SAY BECAUSE HE MAY HAVE
MISSPOKE BY SAYING ACKNOWLEDGED
AS OPPOSED TO I NEED TO
ACKNOWLEDGE THAT THIS IS WHAT
THE EVIDENCE SHOWS, WE'RE IN A
SITUATION WHERE THE DOOR IS
OPENED AND IT'S FOCUSING ON
MR.^POOLE NEVER TELLS
ANIVERSION OF THE STORY THAT
EXONERATES -- ANY VERSION OF
THE STORY THAT EXONERATES HIM.
THAT'S CORRECT.
BUT ISN'T THAT BECAUSE THERE
ARE SUCH HIGH-RISK ERRORS ISN'T
THERE JUST A PROBLEM ON ITS
FACE WITH AFFIRMING THIS
CONVICTION AND NOT SAYING THAT
THE COUNSEL SHOULD -- WAS
INEFFECTIVE ON ITS FACE FOR
OPENING THE DOOR BECAUSE ONCE
THE DOOR WAS OPENED, LOOK WHAT
THEY GOT TO TALK ABOUT?
ABSOLUTELY NOT, YOUR HONOR.
AND HERE IS WHY.
IN THIS CASE, YOU HAVE
ABSOLUTELY OVERWHELMING
EVIDENCE OF GUILT.
AND I KNOW SOMETIMES
PROSECUTORS THROW THAT WORD
AROUND OVERWHELMING BUT IN THIS
CASE IT TRULY IS. CHIEF JUSTICE
LEWIS, THERE WASN'T A COURT
EYEWITNESS IN THE DACE.
DAWN BRISEDDINE OBSERVED THE
WINS MOVING IN THE DIRECTION
ALONE TOWARD THE VICTIM'S
TRAILER AT 11:30 P.M., THE TIME
-- WITHIN THE TIME FRAME THAT
THESE CRIMES OCCURRED AND THEN
YOU HAVE OVERWHELMING PHYSICAL
EVIDENCE.
DNA, MATCHING THE APPELLANTS,
AND THAT YIELDS A POPULATION
PERCENTAGE OF ONE IN 80 SOME
TRILLION.
MORE THAN ANY OTHER PERSON ON
EARTH.
AND A SHOE RIGHT NEXT TO VICTIM
NOAH SCOTT WAS FOUND AND ALSO
YOU HAVE GOT VICTIM WHITE'S
BLOOD ON A POLO SHIRT RECOVERED
FROM MARK POOLE'S TRAILER.
IN ADDITION, HE'S PASSING OFF
THESE GAMES IMMEDIATELY AFTER
THE MURDER, SELLING THEM TO
PEOPLE WHO IDENTIFIED HIM AND
AGAIN, GEE, WHAT A SURPRISE.
THOSE GAMES HAVE THE VICTIM'S
BLOOD ON THEM.
WHAT WAS THE, YOUR OPPONENT
HAS SAID THAT, THAT THERE WAS
EVIDENCE THAT THERE WERE TWO
PEOPLE INVOLVED IN THE CRIME AS
OPPOSED TO ONE?
REFRESH US OR GIVE US A
COMPLETE PICTURE OF WHATEVER
EVIDENCE, YOU KNOW, THERE WAS
OR WASN'T.
IN OTHER WORDS, WHAT IS HE
BASING THAT ON?
WELL, I BELIEVE MR.^HELM IS
BASING THAT ON THE VICTIM'S 911
CALL.
REMEMBER, SHE WAS NOT
UNCONSCIOUS --
THE VICTIM TESTIFIED AT
TRIAL, IS THAT CORRECT?
IT DID NOT SAY THAT THERE
WERE TWO PEOPLE IN HER TRAILER
AT TESTIMONY.
SHE SAID THE PERSON WHO WAS
RAPING HER SHE COULD SEE A
BLACK ARM AND AN OLDER BLACK
GENTLEMAN'S VOICE.
THAT'S IT.
NOW EVERY -- YOU INTRODUCE OF
THE 911 CALL WHERE SHE
INDICATES THERE WERE TWO
ATTACKERS SHE WAS CONCUSIVE AT
THAT POINT FALLING IN AND OUT
OF CONSCIOUSNESS THERE WAS AN
EMERGENCY MEDICAL TECHNICIAN
WHO TESTIFIED SHE WAS RAMBLING.
DID SHE EXPLAIN THAT, THAT
IN HER TESTIMONY AT TRIAL?
I DON'T BELIEVE SHE DID,
YOUR HONOR.
IN OTHER WORDS, SHE, THERE
WAS NO CROSS-EXAMINATION OF HER
THAT SAID WELL WHAT ABOUT THIS
911 CALL AND THEN SHE SAID,
LOOK, I WAS, YOU KNOW, IN SHOCK
AND IN AND OUT OR WAS THERE
ANYTHING LIKE THAT.
I DON'T BELIEVE SO, YOUR
HONOR.
I SEE.
SO SHE WAS NEVER -- THERE
WASN'T ANY TESTIMONY THEN AT
TRIAL THAT SAID, YES, MAYBE I
SAID THAT AND HOW DID THE 911
--
I DON'T BELIEVE SHE --
HOW DID THE 911 EVIDENCE
COME IN, THEN?
THE PROSECUTOR INTRODUCED
THAT, THE 911 CALL.
OKAY FROM THE RECORDER OF
THAT OR --
THAT IS CORRECT, YOUR HONOR.
AND WE HAVE TRANSCRIPT.
THERE WAS ALSO AN EMT
TECHNICIAN WHO INDICATED SHE
MIGHT'VE SEEN SOMEONE ELSE IN
THE APARTMENT, BUT AGAIN THAT
SAME EMT SAID SHE REALLY WASN'T
MAKING SENSE.
THIS WAS A WOMAN LEFT FOR DEAD
STRUCK EIGHT TIMES WITH A TIRE
IRON.
BUT THAT WAS THE EXTENT OF
THE EVIDENCE THAT?
AS I RECALL, YOUR HONOR.
THAT THE DEFENSE COULD'VE
RELIED ON.
OKAY.
RELIED ON, IT'S A VERY
TENUOUS THEORY.
WELL, UNTIL YOU GOT TO THE
ARGUMENT THEY PUT ON THE
EVIDENCE OF THE OTHER TWO
PEOPLE.
RIGHT?
THERE'S MORE EVIDENCE BUT IT
DIDN'T SEEM TO CONNECT TO
ANYTHING.
THERE WAS NO PHYSICAL
EVIDENCE SAYING THAT THERE WAS
ANYONE ELSE THERE.
IN FACT, THE PHYSICAL EVIDENCE
SHOWED THAT THERE WAS ONLY ONE
PERPETRATOR.
BUT THERE WAS EVIDENCE THEY
BROUGHT IN ABOUT A WOMAN WHO
HAD JUST BEEN RELEASED FROM
JAIL OR SOMETHING?
I MEAN, THERE WAS EVIDENCE AND
IT DIDN'T SEEM TO CONNECT AND
THEN ALL OF A SUDDEN WELL, IT
WAS EVIDENCE.
THERE WAS NO CONNECTION.
OH, I UNDERSTAND BUT AGAIN
IN ANSWER TO JUSTICE ANSTEAD'S
QUESTION WAS THEY PUT THESE
PEOPLE ON AND AT THE TIME
DIDN'T CONNECT IT TO THIS OTHER
TRAILER BUT PIT THOSE PEOPLE
ON, MADE YOU WONDER WHY ARE
THEY TESTIFYING.
EXACTLY.
IN FACT, THE JUDGE COULD'VE
INCLUDED THAT BECAUSE ALL THEY
SHOWED IS SOMEBODY MIGHT'VE
THOUGHT THAT THE VICTIM -- ALL
THESE OTHER PEOPLE BUT THERE
WAS NO CONNECTION BETWEEN
INDIVIDUALS AND IN FACT, THE
VICTIM WHITE KNEW HIS
INDIVIDUAL VOICE DID HEAR IT.
WHAT DID DEFENSE COUNSEL SET
OUT IN HIS OPENING STATEMENT?
WITH REFERENCE TO ADDRESSING
THE JURY AS TO HOW THE APPROACH
TO THE CASE WOULD BE?
WAS IT A REASONABLE DOUBT OR
MAKING THE, THE STATE PROVE ITS
CASE OR WAS IT -- YOU KNOW, DO
YOU KNOW?
I DON'T HAVE AN INDEPENDENT
RECOLLECTION.
I DON'T BELIEVE HE MENTIONED
ANYTHING ABOUT A THIRD -- THE
DEFENSE THEORY WAS GOING TO BE
-- SOME THIRD PERSON HERE BUT I
THINK THE PROSECUTOR WAS
CONFRONTED WITH THIS FOR THE
FIRST TIME IN REBUTTAL.
REMEMBER, AND ONCE THERE WAS A
SINGLE OBJECTION, THE
PROSECUTOR, THERE WAS NO OTHER
COMMENT THAT THE PROSECUTOR
MADE.
SO THE DEFENDANTS HERE IS TO
SHOW FUNDAMENTAL ERROR BASED
UPON THIS COMMENT WHICH THE
STATE ADMITS WERE ENTIRELY FAIR
BASED UPON DEFENSE COUNSEL'S
ARGUMENT BUT REMEMBER THE STAND
OF REVIEW HERE IS BECAUSE YOU
HAD AN OBJECTION AND IT WAS
ESSENTIALLY SUSTAINED BY THE
TRIAL COURT, AND THE PROSECUTOR
AGREED TO REPHRASE HIS ARGUMENT
BASED UPON THAT SINGLE COMMENT,
THE DEFENDANT'S WORDS SHOW THAT
COMMENT WAS SO PREJUDICIAL IT
SERVED TO VITIATE THE ENTIRE
TRIAL.
WELL THE LAST COMMENT WAS
OBJECTED TO.
THAT'S TRUE.
IF THE LAWYER STANDS UP AND
SAYS TO THE JURY IF THIS PERSON
REALLY -- IF THIS REALLY
HAPPENED THIS WAY HE NEEDS TO
COME OVER ON THIS WITNESS STAND
AND TELL US THAT.
THAT WOULD BE IMPROPER.
WORDS MEAN SOMETHING.
WORDS DO MEAN SOMETHING.
AND SOMETIMES YOU HAVE THOSE
WORDS AND I'M NOT EYOU KNOW TO
ME IT SAYS THEN LET HIM COME
FORWARD IS WHAT THIS SAYS.
I MEAN IT'S REALLY SAYING THAT
TO MOO AND WHY AM I WRONG IN
SEEING THAT WAY?
WELL, I'M NOT SAYING YOU'RE
WRONG AND I'M CERTAINLY NOT --
I ADMITTED THIS BEFORE WHEN YOU
SAY ANYTHING ABOUT THE
DEFENDANT COMING FORWARD YOU'RE
CAREFUL -- REMEMBER, THE
PROSECUTOR DOESN'T HAVE A
SCRIPT HERE.
HE HEARS THE DEFENSE ARGUMENT
AND HE'S ARGUING.
THERE IS DEFENSE OBJECTION
WHICH PREVENTED HIM FROM
FINISHING THAT THOUGHT.
AND HE AGREES TO REPHRASE IT
AND MOVE ON.
BUT WHAT IS COMMONLY DONE IN
THE THIS CASE AND CORRECT ME IF
I'M WRONG IS WHEN YOU ARE IN
THE HEAT OF THE ARGUMENT AND
YOU ARE PASSIONATE AND YOU ARE
GOING AND YOU ARE MAKING THE
ARGUMENT AND YOU SLIP AND GO A
LITTLE TOO FAR WHICH THE
PROSECUTOR DEFINITELY DID HERE,
IS MADE AWARE OF THAT BY THE
JUDGE, THE PROSECUTOR DID NOT
GET BACK UP AND REEMPHASIZE WE
HAVE THE -- WE HAVE THE BURDEN
OF PROVE.
THE DEFENDANTS HAS NO --
DO YOU AGREE?
I ALSO AGREE THERE WAS NO
REQUEST FOR CURATIVE YOU HAVE
TO UNDERSTAND THE JURY IS INICT
CENTERED THE DEFENSE CARRIES NO
BURDEN -- THE PROSECUTOR'S
ARGUMENT THAT HE HAS, YOU KNOW,
THE RIGHT TO REMAIN SILENT.
HE HAS NO BURDEN HE DID NOT
TESTIFY IN THIS CASE YOU CAN'T
HOLD IT AGAINST HIM SO THE
DEFENSE HAS --
I GUESS MY POINT IS ISN'T IT
PROPER FOR THE PROSECUTOR WHEN
THE PROSECUTOR MAKE AS MISTAKE
LIKE THIS TO STAND BEFORE THE
JURY AND REEMPHASIZE FOR THE
JURY WHERE THE BURDEN LIES AND
THE PROSECUTOR MAY HAVE
RESTATED IT.
I AM SURE AND I KNOW THE
PROSECUTOR IN THIS CASE IS A
GOOD PROSECUTOR.
I DON'T KNOW.
I KNOW THAT -- REMEMBER THERE
WAS NO OFFENSIVE OR OBJECTIVE
COMMENTS BEFORE.
IT WAS NOT LIKE A STRING OF
COMMENTS.
THE PROSECUTOR HEARS THE THEORY
FOR THE FIRST TIME AND HE MAKE
AS ARGUMENT.
WELL, LET'S TALK ABOUT HOW
GOOD A PROSECUTOR.
HE MAY BE A VERY GOOD
PROSECUTOR.
I MAY BE -- I AM VERY CONCERNED
ABOUT WHAT THE PROSECUTOR DID
IN THE PENALTY PHASE, AND IF
YOU FIRST IF YOU CAN ADDRESS I
THINK YOU HAVE ADEQUATELY
EXPLAINED WHY YOU THINK IT WAS
HARMLESS.
THE COMMENTS AND WE'LL JUST
HAVE TO LOOK AT THAT BUT
THERE'S A LOT OF THINGS IN THIS
PENALTY PHASE THAT I HAVEN'T
SEEN IN A WHILE THAT I'M JUST
CONCERNED CUMULATIVELY THAT
THIS PROSECUTOR STEPPED OVER
THE LINE, AND LET'S JUST START
WITH WELL, HE'S A LOVING GREAT
GUY.
WELL, DID YOU KNOW HE WAS
ARRESTED?
WHERE IS THAT COMING FROM AND
WHERE IS THAT NOT A VIOLATION
OF OUR CASE LAW ON, AND IN THIS
PARTICULAR CASE, A VIOLATION OF
THE AGREEMENT THAT THERE
WAS BETWEEN THE PROSECUTOR, THE
DEFENSE, AND THE, AND THE TRIAL
COURT?
YOUR HONOR, IT IS MY
RECOLLECTION THAT THE PENALTY
PHASE WAS STILL PART OF THE
JUSTICE SYSTEM AND WE WANT TO
ENCOURAGE THE -- FACT FINDING.
THE PROSECUTOR DOES NOT HAVE TO
SIT BACK ON HIS HAND AND LET A
WITNESS TESTIFY THAT THIS MAN
IS AN ANGEL.
THEN WE WOULD BE SHOT.
BASICALLY WHAT HE SAID WITH
THIS REPUTATION NOBODY WOULD
BELIEVE HE IS HERE AT ALL.
HE HAS GOT A STELLAR
REPUTATION.
HE WAS A CHURCHGOING, KIND AND
LOVING MAN.
WE WOULD ALL BE SHOCKED.
WHEN HE CROSSED THAT LINE.
WELL, THEN, LET'S JUST
ASSUME HE THOUGHT HE NOW
CROSSED THE LINE AS JUSTICE
BELL SAID.
ISN'T THEN THE NEXT STEP TO SAY
YOUR HONOR I WOULD NOW LIKE TO
ASK CERTAIN QUESTIONS, AND
WHETHER THE QUESTIONS WOULD BE
DID YOU KNOW HE HAD BEEN
ARRESTED IN THREE STATES WHERE
I DON'T KNOW WHERE THAT COMES
FROM, BUT WHERE ARE ARRESTS NO
MATTER WHAT YOU SAY UNLESS HE
GOES HE'S NEVER BEEN ARRESTED,
HEERS ARE -- HE'S SO GOOD, HE'S
NEVER BEEN ARRESTED BUT WHERE
DO ARREST COMES IN TO IMPEACH
SOMEBODY THAT HE'S KIND,
LOVING, AND CONSIDER ISN'T.
AND THAT HE HAS A STELLAR
REPUTATION BACK HOME.
YOUR HONOR, I THINK IT GOES
BACK TO THE CASE -- REPUTATION
-- IN MY BRIEF.
BUT I THINK THE DISTINCTION
THAT JUSTICE PARIENTE IS
DRAWING IS THAT WHEN IMPROPER
IMPEACHMENT IF YOU WERE GOING
TO THE CREDIBILITY OF A WITNESS
WOULD BE -- HAVE YOU BEEN
CONVICTED OF A CRIME.
NOT WHETHER YOU'VE BEEN
ARRESTED.
BECAUSE ARRESTED REALLY IS
THOUGH IT, IT IS A VERY STRONG
TERM AS FAR AS A LAYPERSON IS
CONCERNED, WE KNOW AS FAR AS
LAW IS CONCERNED IT ABSOLUTELY
-- IT DOESNT STOP ANYTHING.
-- ESTABLISH ANYTHING.
THIS COURT HAS IN THE PAST
-- IN -- IN THAT CASE THE
DEFENSE WITNESS WAS STATING
HOW, HOW, YOU KNOW, NONVIOLENT
THE DEFENDANT WAS AND HOW
NONVIOLENT HE WAS TOWARD WOMEN
HE WAS.
THIS COURT ALLOWED IMPROPER
IMPEACHMENT AND I DON'T THINK
THERE IS MENTION OF A HIS PRIOR
-- SO I THINK ONCE YOU PUT --
WELL PRIOR VIOLENCE, ACTS OF
MISCONDUCT TO IMPEACH, ACTS OF
MISCONDUCT BUT ARRESTS ON THEIR
OWN MEAN NOTHING.
THEY DON'T IMPEACH ANYTHING,
AND IN FACT, THE WORST ABOUT IT
IS THAT WE DON'T KNOW HERE WHAT
THEY ARE TALKING ABOUT ARRESTS
IN GEORGIA FOR WHATEVER.
YOU KNOW, THE PROSECUTOR JUST
THREW IT OUT LIKE HE THREW OUT
THIS COMMENT WHICH HAS NO BASIS
IN THE EVIDENCE DID YOU KNOW HE
HAD THUG LIFE ON HIS ABDOMEN.
I MEAN, THAT'S, HE'S TESTIFYING
TO A FACT NOT IN EVIDENCE.
IT'S -- YOU KNOW WHAT DOES THAT
HAVE TO DO WITH ANYTHING?
THE.
THE CASES ON REPUTATION ARE
DIFFERENT.
IF YOU HAVE HEARD THIS -- I
SUBMIT THE PROSECUTOR COULD'VE
GOTTEN INTO PRIOR CONVICTIONS.
THE PLAUS COURT HAD A GOOD
FAITH HAD BASE TO ASK THAT
QUESTION WE KNOW THAT THE TRIAL
COURTS ORDERED THAT HE
APPELLANT'S CRIMINAL RECORD
WENT THROUGH THREE FACES BUT
FOUR.
THE THERE IS A PSI TO BACK THAT
UP.
FURTHERMORE, THERE WAS
ABSOLUTELY NO OBJECTION --
WHAT CASE SAYS THAT YOU CAN
IMPEACH A WITNESS ON USING
PRIOR ARRESTS?
YOUR HONOR, I BELIEVE I
CITED GREENFIELD v. STATE WHICH
IMPLICATED AND IT WENT THROUGH
A LENGTHY DISCUSSION OF
REPUTATION AND CHARACTER AND
WHAT IS PERMISSIBLE
IMPEACHMENT.
I WOULD ADMIT TO YOU IN
GERALDS v. STATE THIS COURT
SAID IT WAS PROPER TO IMPEACH A
CHARACTER WITNESS ON THOSE
SPECIFIC FACTS BUT IN GERALDS A
NEIGHBOR TESTIFIED HE HAD LIVED
NEXT TO HIM ONE YEAR AND HAD NO
PROBLEM WITH HIM.
IT IS MUCH DIFFERENT WHERE --
HIS KIND, LOVING AND
CHURCHGOING.
OKAY SO YOU ARE.
YOU AGREE THAT HE WOULD
NEVER BE ADMITTED AS A
REPUTATION WITNESS?
JONES, JR., HE'S THE BROTHER.
OH,.
HE REALLY TESTIFIED TO HIS
GENERAL REPUTATION.
HE TESTIFIED.
WELL HE MADE THE STATEMENT
AT THE VERY END OF THE LAST
STATEMENT THAT WAS ADMITTED AND
THERE WAS NO OBJECTION TO THAT
OR ANY FOUNDATION FOR THE
REPUTATION.
AND, AND THE CROSS-EXAMINATION
OF HIM TOWARDS THIS DIDN'T GO
TO -- AND THEY SAID FOLKS IN
LOUISIANA.
AND I MEAN THERE WAS NO
EVIDENCE PRESENTED TO THE FOLKS
IN LOUISIANA HAD A DIFFERENT
IMPRESSION OR KNEW ABOUT
ARRESTS IN NON-LOUISIANA
STATES, NON-LOUISIANA ARRESTS.
THE POINT WAS MADE.
-- YOU DON'T REALLY KNOW
THIS MAN AND HIS REPUTATION --
WHY DIDN'T THEY USE THAT
QUESTION?
AGAIN WORDS MEAN SOMETHING AND
THAT'S WHAT WE'RE --
BEFORE WE VILIFY THE
PROSECUTOR HERE.
WE'RE NOT VILIFICATION, THIS
IS TRYING TO GET TO
CONSTITUTIONAL PARAMETERS,
PROPER QUESTIONING AND WE ARE
NOT COMMENTING UPON A BAD
PERSON OR ANYTHING LIKE THAT.
WE'RE TALKING UTLAW AND THE
PROSECUTOR ON ANY PROSECUTORS
HE ONLY QUESTIONED THE BROTHER
ON THAT AND THE REASON HE DID
BECAUSE THE BROTHER STEPPED
OVER THAT LINE AND SAID HIS
REPUTATION EVERYONE BE SHOCKED.
HE DIDN'T --
ISN'T THERE A DIFFERENCE IN
BEING SHOCKED THAT SOMEONE IS
ACCUSED OF FIRST-DEGREE MURDER
AND SOMEONE HAVING BEEN
ARRESTED FOR WE DON'T KNOW.
SHOPLIFTING, PETTY THEFT, IT
COULD'VE BEEN ANYTHING THAT HE
WAS POSSIBLY ARRESTED ON.
TO TAKE IT FURTHER WHICH REALLY
DISTURBS ME WE HAVE A
STIPULATION THAT WE ARE NOT
CONSIDERING NO PRIOR HISTORY,
CORRECT?
AND WHAT DOES THE JUDGE DO AND
THE JUDGE'S ORDER BUT UNDER THE
PRIOR HISTORY, TALKED ABOUT
THESE POSSIBLE ARRESTS AND
THESE OTHER STATES THAT WE HAVE
NO EVIDENCE ON AND HE TALKS
ABOUT IT IN HIS ORDER SAYING
THAT THE NO PRIOR HISTORY
DOESN'T REALLY -- IS NOT REALLY
APPLICABLE HERE AND SO NOT ONLY
DO WE HAVE A JURY NOW LISTENING
AND HEARING THAT THERE'S
PROBABLYY SOME OTHER CRIMINAL
STUFF IN THIS MAN'S BACKGROUND
BUT WE HAVE THE JUDGE USING IT
AS I SEE ADVERSELY AGAINST THE
DEFENDANT AND ALTHOUGH HE, IT'S
WRITTEN UNDER A MITIGATING
MACTER DASH FACTOR, IT REALLY
SOUNDS LIKE A NONSTATUTORY
AGGRAVATING FACTOR.
WELL, LET ME MOVE ON NOW TO
HARMLESS ERROR.
NO.
NO
[LAUGHTER]
ANSWER THAT QUESTION.
SHE WOULD LIKE AN ANSWER TO
THAT QUESTION.
YEAH, PLEASE DO.
I THINK IT'S CLEAR THAT THE
DEFENDANT HAD A CRIMINAL
RECORD.
HE WAS NOT ENTITLED TO THE
MITIGATOR OF NO SIGNIFICANT
CRIMINAL HISTORY.
BUT HE SAID -- HE WAS NOT
OFFERING THAT AS A MITIGATING
FACTOR.
AND I THINK WHAT THE TRIAL
JUDGE, LOOK AT HIS ORDER HE WAS
CAREFUL TO LIST THROUGH EVERY
MITIGATOR WHETHER IT WAS PROVEN
OR NOT IN, AND GIVE A BRIEF
DISCUSSION.
AND THERE WAS NO ERROR ALLEGED
BAITS BASED ON THE TRIAL
COURT'S ORDER.
HAVE WE EVER HELD THAT --
DO WE HAVE TO LOOK AT THAT
WHEN WE ARE TALKING ABOUT
DOLLAR WAS REAL -- THERE WAS
REAL, SOME REAL HARM IN THE
PROSECUTOR BRINGING OUT THIS
INFORMATION.
HERE'S WHY IT'S CLEARLY
HARMLESS IN THIS CASE.
THE DEFENSE COUNSEL'S OWN WINS
ON DIRECT EXAMINATION --
WITNESS ON DIRECT EXAMINATION
ADMITTED THE APPELLANT WAS A --
HE WAS COMMITTING A LOT OF
BURGLARIES.
AND JURY WAS NOT UNDER THE
IMPRESSION.
INATE CONTEXT OF HIM HAVING A
-- IN THE CONTEXT OF HIM HAVING
A DRUG HABIT AND HE WAS DOING
THIS -- WASN'T THERE -- WASN'T
THIS IN THE CONTEXT OF WHETHER
OR NOT HE HAD A SUBSTANCE ABUSE
PROBLEM, ALCOHOL ABUSE PROBLEM?
IN, IN, --
AND THE DOCTOR'S TESTIMONY?
-- YOUR HONOR YOUR HONOR,
CERTAINLY.
HIS OWN WITNESS IS SAYING HE IS
CERTAINLY NOT ADVERSE TO
VIOLATING THE RIGHTS OF OTHERS
SO WHEN YOU ARE TALKING ABOUT
HARMFUL ERROR LOOK AT THE
DEDEFENSE.
THE JURY DIDN'T VOTE 12-0 FOR
DEATH IN THIS CASE.
BECAUSE THE PROSECUTOR
MENTIONED THAT HE HAD SOME
PRIOR ARRESTS THAT THEY WEREN'T
INFORMED OF.
WITH WE REALLY SAY THAT?
WHAT'S THE STANDARD IN ORDER
FOR -- WE HAVE TO SAY THAT
BEYOND A REASONABLE DOUBT THIS
DOES NOT CONTRIBUTE TO --
THAT IS CORRECT, YOUR HONOR
BUT LOOK AT THE AGGRAVATION IN
THIS CASE.
HERE WAS A YOUNG COUPLE
ATTACKED WITH A TIRE IRON.
WE HAVE TWO AGVUIVATING
FACTORS, A PRIOR FELONY AND THE
HAC AND THE PRIOR VIOLENT
FELONY OR THE CONTEMPORANEOUS
FELONIES WE DON'T HAVE ANY
PRIOR VIOLENT FELONIES THAT GO
BACK BEYOND THIS ACTUAL
CRIMINAL INCIDENT, CORRECT.
NO PRIOR VIOLENT FELONIES
OTHER THAN WHAT WE KNEW FROM
THE PSI.
WE ALSO KNOW WHAT THE JURY
KNEW, THAT MR.^POOLE WAS IN
TROUBLE IN JAIL FOR HITTING
PEOPLE.
THAT CAME OUT THROUGH THE
DEFENSE EXPERTS.
WELL, LET ME ASK AS FAR AS
THE TRIAL JUDGE IN THE TRIAL
JUDGE'S ORDER, THE TYPICAL CASE
WHERE THE TRIAL JUDGE HAD THE
INVESTIGATION WHICH WOULD'VE
LISTED THE PRIOR ARRESTS AND
OTHERWISE.
YES, YOUR HONOR.
SO THAT WOULD'VE BEEN -- SO
THE JUDGE WOULD'VE HAD THAT
PERFORMED AT THE SPENCER
HEARING OR PRIOR TO SENTENCING
ANYWAY.
YEAH, AND HE DID BUT IN THIS
CASE, AGAIN, GOING BACK TO THE
FACT, AGAIN, NOT BECAUSE HE HAD
A THUG LIFE TATTOO ON HIS CHEST
OR HE MAY HAVE BEEN ARRESTED A
FEW TIMES.
HE HAS BEEN IN TROUBLE WITH THE
LAW.
THE JURY KNEW THAT.
THE DEFENSE EXPERT'S TESTIMONY.
IT'S DISCONCERTING THAT THE
TRIAL JUDGE DOESN'T DISCUSS
WHAT MAY HAVE BEEN IN A PRE--
PRETRIAL.
WHAT IS IT CALLED?
PRECENTANCE INVESTIGATION
REPORT.
HE DISCUSSES WHAT WAS BROUGHT
OUT -- PRECENTANCE
INVESTIGATION REPORT.
HE DISCUSSES WHAT WAS BROUGHT
OUT BY THE --
LET ME ASK YOU A QUESTION
ABOUT THAT PARTICULAR FINDING
OF THE JUDGE IN THE SENTENCING
ORDER.
ARE THERE CASES THAT HOLD THAT
A JUDGE CAN FIND A LACK OF THE
MITIGATOR OR NO PRIOR
SIGNIFICANT CRIMINAL HISTORY BY
THE MERE FACT OF ARRESTS AS
OPPOSED TO CONVICTIONS?
WELL, YOUR HONOR, THERE WERE
CONVICTIONS, AND THERE WERE
ARRESTS IN MORE THAN THREE
STATES, FOUR STATES.
THERE COULD'VE BEEN 100
ARRESTS.
MY QUESTION IS CAN A JUDGE VIEW
ARRESTS AS OPPOSED TO
CONVICTIONS FOR A FINDING THAT
THERE WAS A PRIOR CRIMINAL
HISTORY?
YOUR HONOR, SINCE THAT WAS
NOT RAISED I'M NOT SURE.
HOWEVER I DO KNOW THE DEFENSE
DID NOT WANT THAT MITIGATOR AT
ALL AND THEY ADMITTED --
EXPERTS ADMITTED HE COMMITS A
LOT OF BURGLARIES.
HE VIOLATES THE RIGHTS.
MR.^BROWNE I DO WANT TO MAKE
SURE IN DIRECT BECAUSE WE ARE
HERE ON THE LAW DO WE HAVE A
CASE THAT SAYS IT IS PROPER TO
IMPEACH A WITNESS IN A WINS
WITH A PRIOR ARREST?
I COULD FIND A CASE -- I
CITED IT WHERE I THINK IF YOU
TALK ABOUT GENERAL CHARACTER
REPUTATION AND AIRHART, THEY
DISCUSS IT, WHEN YOU TALK ABOUT
GENERAL REPUTATION YOU CAN TALK
ABOUT THINGS -- SUCH AS
CONVICTIONS.
ABOUT ACTS OF MISCONDUCT.
NOW THE THING, THE REASON THIS
CONCERNS ME IS THAT IN EVERY
PENALTY PHASE, MOTHERS GET ON THE
STAND, FATHERS GET ON THE
STAND, BROTHERS AND THEY SAY,
HEY, THIS WAS A GOOD GUY
BECAUSE THAT'S WHAT THEY GET TO
DO WITH MITIGATION.
WE HAVE NEVER SAID THAT KIND OF
TESTIMONY OPENS THE DO TO --
DOOR TO SAY YOU KNOW THIS GUY
HAD A TATTOO ON HIS CHEST, HE
HAD ARRESTS AND BRING OUT
EVERYTHING ABOUT THE PERSON
THAT COULD NOT COME IN BECAUSE
IT'S IMPERMISSIBLE STATUTORY --
NONSTATUTORY AGGRAVATION, AND
THAT'S WHY I THINK THE
PRINCIPLE OF LAW HERE IS SO
IMPORTANT.
AND WHETHER WE REALIZE THIS IS
HARMLESS ERROR.
THIS WASN'T A SLIP-UP.
THIS WAS AN EXPERIENCED
PROSECUTOR SAYING HE'S GOT
ARRESTED IN GEORGIA, SOUTH
CAROLINA, AND TEXAS.
WHICH WAS NOT LOUISIANA.
SO CAN WE AGREE THAT WE MIGHT
LOOK AT THIS AS HARMLESS ERROR
BUT WE WOULD SAY THAT THIS TYPE
OF IMPEACHMENT OF A PENALTY
PHASE MITIGATION WITNESS IS
IMPROPER.
YOU CAN'T IMPEACH WITH JUST
PRIOR ARRESTS.
I WOULD INDICATE THIS COURT
DID SAY BUT AGAIN I WOULD LIMIT
-- I AM NOT, I AM NOT SURE THE
ANSWER TO THAT SHOULD BE THE
PROSECUTOR HAS TO JUST SIT BACK
AND I THINK IF YOU MAKE THE
PROSECUTOR GO FAR ENOUGH HE
SHOULD'VE ASKED ABOUT
CONVICTIONS AND BUT I DO KNOW
THIS, THE 12-0 JURY
RECOMMENDATION THE JURY DIDN'T
VOTE FOR DEATH BECAUSE THEY
KNEW THAT HE HAD A FEW ARRESTS?
ARE YOU KIDDING ME IN A CASE
WHERE HE BROKE IN AND BEAT TWO
PEOPLE MERCILESSLY RAPED.
IF THIS WAS SUCH AN AIRTIGHT
CASE WHY WOULD THEY ASK ABOUT,
ABOUT REMORSE IF THAT'S NOT
STATUTORY IN THIS CASE BECAUSE
HE DID NOT ALLEGE HE WAS
REMORSEFUL.
WHY WOULD HE ASK ABOUT THAT?
WHY WOULD HE RISK THAT IF THIS
IS OFF AN AIRTIGHT CASE.
YOUR HONOR, HERE'S WHAT
HAPPENED WITH HE-ALL REMORSE.
I CAN'T ANSWER
PERSONALLY FOR THE PROSCOURT.
I KNOW ABOUT REMORSE.
THE VERY FIRST DEFENSE WITNESS
WAS MR.^POOLE'S MOTHER WHO
INDICATED IN RESPONSE TO
DEFENSE COUNSEL'S QUESTION DID
HE EVER INDICATE HE WAS SORRY
FOR WHAT HE'D DONE OR SORRY?
I THOUGHT WAS AMBIGUOUS ENOUGH
FOR THE PROSECUTOR TO COME IN
AND ASK ABOUT REMORSE DID SHE
SPECIFICALLY EXPRESS REMORSE IN
THIS CASE AND AGAIN THREE
WITNESSES TESTIFIED IN THIS
CASE AND THE PROSECUTOR ASKED
ABOUT REMORSEURT THE -- BEFORE
THE DEFENSE COUNSEL.
THERE WAS NEVER AN OBJECTION ON
REMORSE.
THIS IS THE PENALTY PHASE
FOR THIS DEFENSE LAWYER TO HAVE
TO KEEP ON GETTING UP IN FRONT
OF THE JURY IN RESPONSE TO
IMPERMISSIBLE THINGS AND SAY
HE'S NOT SUPPOSED TO GO INTO
REMORSE AT SOME POINT YOU GO I
HAVE GOT TO WAIT TILL IT GETS
REALLY BAD HERE SO I AGREE WITH
YOU WE ALL WENT OVER THAT THERE
IS WARRANT OBJECTS BUT WE ARE
ALSO TRYING TO MAKE SURE THAT
WE DON'T HAVE TO TRY PENALTY
PHASE CASES AND EVERY TIME
CLOSING ARGUMENTS OR LIKE WE
HAVE HERE WITH THE RIGHT TO
REMAIN SILENT THE ARGUMENT IS
IF IT WAS IMPROPER IT WAS
HARMLESS IN THIS CASE IT SEEMS
TO ME PROSECUTOR HAVE BEEN
LISNING AND HAVE NOT STEPPED
OVER THE LINE AND THIS ONE
CONCERNS ME BECAUSE OF WHAT WE
HAVE BEEN TALKING THIS MORNING.
YOUR HONOR, THE PROSECUTOR
-- HAD ARGUED REMORSE AND WOULD
FINALLY THE DEFENSE BROUGHT UP
THE ISSUE THEY -- THE TRIAL
COURT INDICATED THAT WELL, IT
SOUNDS LIKE YOU HAVE
STIPULATIONS, AND WHEN THEY
DISCUSSED THAT.
BUT WHAT ABOUT THE FACT IT
SEEMS HERE AGAIN IN THE
SENTENCING ORDER WE HAVE A
TRIAL JUDGE AGAIN PICKING UP ON
THIS INFORMATION ABOUT LACK OF
REMORSE AND HE ACTUALLY PUTS
THAT IN HIS SENTENCING ORDER
ALSO.
YOUR HONOR, WHAT HE DID, IT
IS PERFECTLY APPROPRIATE.
TO TALK ABOUT REMORSE WHEN
THE DEFENSE DOES NOT SAY THAT
HE WAS REMORSEFUL?
THE DEFENSE INDICATED THAT
HE WAS A RELIGIOUS PERSON.
THE JUDGE IN RESPONDING TO
THAT SAID THE DEFENSE -- I
SUGGEST I PUT IT IN MY BRIEF.
YOU READ THE DEFENSE SPENCER
HEARING TESTIMONY HE DIDN'T
SHOW ANY REMORSE.
IN FACT HE SAID SYMPATHY WAS
SHOWN TO THE VICTIM.
WE HAVE A CASE HERE WHERE
THE VICTIM IS SAYING LOOK
WHETHER HE ACKNOWLEDGED IT OR
NOT HE COMMITTED THE RAPE HE
COMMITTED THE BURGLARY HE
COMMITTED THE ROBBERY BUT HE
DID NOT MURDER ANYONE SO EVEN
IF HE GETS ON THE STAND AT THE
SPENCER HEARING AND DOES NOT
SAY I'M SORRY, FOR KILLING
THESE PEOPLE, WHEN HE'S
MAINTAINING THAT HE DID NOT
KILL THESE PEOPLE DON'T WE HAVE
CASE LAW ABOUT THAT?
HE'S MAINING HIS INNOCENCE AS
TO THOSE TWO --
HE'S MAINTAINING HIS
INNOCENCE TO THE MURDER.
WHY SHOULD HE HAVE TO GET UP ON
THE STAND AND SAY I'M SORRY FOR
SOMETHING I DIDN'T DO.
HE DIDN'T HAVE TO BUT NOT ONLY
DIDN'T SHOW REMORSE BUT THE
DEFENSE -- GAVE HER TISSUE.
[INAUDIBLE]
THE DEFENSE IS OFFERING HIM
SOME RELIGIOUS GUY ARE YOU
KIDDING ME?
YOU CAN'T USE THAT?
HAVE WE GONE SO FAR OVERBOARD.
I AM NOT TRYING TO KID YOU.
WHAT I AM ASKING YOU IS IF THE
DEFENDANT IS MAINTAINING HIS
INNOCENCE ARE YOU SAYING THAT
DESPITE THAT FACT HE SHOULD GET
UP ON THE STAND, IF HE GETS ON
THE STAND, HE SHOULD SAY I'M
SORRY, FOR HAVING KILLED PEOPLE
THAT HE'S SAYING HE DIDN'T
KILL.
HE SHOULDN'T HAVE TO BUT IF
YOU GO AND COMPLAIN THAT THE
VICTIMS WERE SHOWN SOME
SYMPATHY THEN I THINK YOU
COULD, THE TRIAL COURT WOULD BE
REMISIN NOT MENTIONING -- IN
REBUTTING THE DEFENDANT
PROFFERING HIMSELF AS A
RELIGIOUS MAN AT THE VERY
LEAST.
THE DEFENDANT ADMITTED THAT HE
RAPED THE PREGNANT MRS.^WHITE
WHILE SHE WAS BEGGING FOR MERCY
FOR HERSELF AND HER UNBORN
CHILD.
GEE, UM, YOU KNOW, I DON'T KNOW
WHY ANYONE WOULD FEEL SYMPATHY
FOR HER.
AND AGAIN, THE JURY -- THE FACT
OF THIS CASE ARE SO
OVERWHELMING AND OUTRAGEOUS
THAT IT -- THE FACT THAT WE
COULD BE TALKING ABOUT ANOTHER
PENALTY PHASE BECAUSE THE JURY
WORKED THIS OUT WELL HE MAY
HAVE BEEN ARRESTED.
LOOK AT THE DEFENSE EXPERT'S
OWN TESTIMONY.
THE JURY KNEW HE WAS A B&E GUY.
HE COMMITTED BURGLARY.
WITH OUR HELP YOU HAVE
EXHAUSTED ALL OF YOUR TIME AND
PLUS -- AND I KNOW YOU ARE VERY
PASSIONATE THAT'S NOT A PROBLEM
BUT MR.^HELM WE WILL GIVE YOU A
COUPLE QUESTIONS SO IF YOU WILL
GO AHEAD AND --
I WOULD JUST LIKE TO MAKE
ONE POINT.
EVER SINCE THE DIGUILIO WAS
DECIDED THIS COURT HAS
REPEATEDLY SAID THE TEST FOR
HARMLESS ERROR IS SUFFICIENCY
OF THE EVIDENCE.
IT IS NOT THE WEIGHT OF THE
EVIDENCE AND IT IS NOT EVEN
OVERWHELMING EVIDENCE.
IT'S WHETHER THERE IS A, YOU
CAN SAY BEYOND A REASONABLE
DOUBT THAT THE INCIDENT {CHRAN}
COMPLAINED OF DID NOT AFFECT
THE JURY'S VERDICT.
THANK YOU.
THANK YOU VERY MUCH.
WE WILL TAKE THE CASE UNDER
ADVISEMENT AND THE COURT WILL
STAND IN RECESS.
ALL RISE.
COURT IS IN RECESS.

ALL RISE.
HEAR YE HEAR YE HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL THOSE HAVING BUSINESS BEFORE
THIS COURT DRAW NIGH, GIVE
ATTENTION AND YE SHALL BE HEARD,
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA AND THIS
HONORABLE COURT.
GOOD MORNING.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT, PLEASE BE
SEATED.
GOOD MORNING, FRIENDS,
WELCOME TO THE FLORIDA SUPREME
COURT ON THE ORAL ARGUMENT
CALENDAR FOR TUESDAY, APRIL 8th.
THE FIRST CASE UP THIS MORNING
IS WILLIAMSON VERSUS STATE OF
FLORIDA.
READY TO PROCEED?
OKAY.
KEVIN KULIK ON BEHALF OF
MR. WILLIAMSON.
BASICALLY, IN THIS CASE, THIS
WAS A CASE THAT OCCURRED --
ACTUALLY OCCURRED IN 1988, AND
SORT OF A CASE, TYPICAL OF THAT
ERA AND THERE'S NOT A LOT OF
FORENSIC EVIDENCE OR ANYTHING
LIKE THAT AND, IN 1988, THE CASE
WAS TRIED IN BROWARD COUNTY,
FLORIDA, IT WAS KIND OF A
SENSATIONAL CASE AT THE TIME,
THE WAY THE HOMICIDES OCCUR WAS,
VERY BRUTAL.
AND ESSENTIALLY THAT SORT OF
FLAVORED THE ENTIRE PROCEEDINGS
AND CASE.
WHAT POINTS ARE YOU GOING TO
ARGUE HERE?
WE ARE FAMILIAR WITH THE
PROCEDURAL POINTS OF THIS.
I'M PREFACING MY OVERALL
ARGUMENT HOW THE TRIAL OCCURRED
AND HAD A PROBLEMS ABOUT HOW THE
TRIAL OCCURRED AND THE MAIN
ISSUE I GUESS UNDER THE COURT'S
CONSIDERATION THIS IS GRAY
ISSUE.
AND I GUESS I'LL SWITCH NOW AND
START WITH THAT.
ESSENTIALLY THIS IS A CASE IN
THE STATE VERSUS GRAY CASE, THE
FLORIDA SUPREME COURT BASICALLY
HELD THAT --
WELL --
CERTAINLY, CERTAINLY, HERE, YOU
HAVE OTHER AGGRAVATION, OTHER
THAN JUST THE ATTEMPTED FELONY
MURDER.
I MEAN, YOU HAVE SIGNIFICANT
AGGRAVATION ON THE PRIOR VIOLENT
FELONY THAT WE IN OUR DIRECT
APPEAL HELD WAS PROPERLY
PRESENTED IN THE GUILT PHASE.
AS TO THE BEATING TO DEATH OF A
CHILD, AND -- EARLIER, AND
BEATING OF ANOTHER CHILD.
WITH A BASEBALL BAT.
NOW, SO YOU HAVE THREE OTHER
AGGRAVATED ASSAULTS, A
KIDNAPPING, BURGLARY.
SO I DON'T SEE HOW GRAY REALLY
GETS YOU VERY FAR.
OTHER THAN YOU GET REVERSAL.
ON --
I WOULD FIRST ARGUE THAT
MR. RODNEY WILLIAMSON, THE
DEFENDANTS'S BROTHER, HAD FOR
THE EXACT SAME REASON --
WELL, THERE WAS -- THERE WAS
NOT A -- IN THAT REVERSAL, IT
WAS REVERSED ON THE JURY
VERDICT.
COMBINED ATTEMPTED FELONY MURDER
AND PREMEDITATED MURDER.
THAT'S NOT RAISED HERE.
THAT WAS THE REASON THE 4th
DISTRICT REVERSED THAT CASE.
WELL, MY ARGUMENT BASICALLY
IS THAT THIS COURT HAS ACTUALLY
SEVERAL TIMES RULED THE OPPOSITE
OF THE WAY JUSTICE WELLS HAS
SUGGESTED, ESSENTIALLY, IF THERE
ARE MULTIPLE GROUNDS FOR A -- AN
AGGRAVATION AND SOME OF THE
GROUNDS FOR AGGRAVATION ARE
LATER DETERMINED TO BE
NONEXISTENT CRIMES, I WOULD
SUBMIT IN THIS CASE THAT THREE
ATTEMPTED FIRST DEGREE MURDERS
WHICH ARE NOT -- NONCONSISTENT
CRIMES FOR THE PURPOSES OF THE
CASE IS A SIGNIFICANT FACTOR FOR
THE JURY AND THE JURY
INSTRUCTIONS IN THIS CASE
ACTUALLY READ THAT IF YOU FIND
THAT HOMICIDES OCCURRED AS A
RESULT OF -- IN THE COURSE OF
THESE OTHER UNDERLYING FELONIES,
ATTEMPTED MURDER AND THE OTHER
ATTEMPTED FIRST DEGREE MURDERS
IN THIS CASE WERE SEVERE
FACTUALLY TO THE JURY, A
ONE-AND-A-HALF-YEAR-OLD CHILD
SHOT IN THE BACK OF THE HEAD AND
SEEMED TO BE AN ATTEMPT TO
ELIMINATE THE WITNESSES IN THE
CASE, PEOPLE WHO BASICALLY
DIDN'T DO ANYTHING WRONG WERE
SHOT IN THE BACK OF THE HEAD BUT
SURVIVED, BECAUSE IT WAS A .22,
NOT A FIREARM TO CAUSE --
LET ME, IF I COULD, STEER YOU
SINCE YOU HAVE A LIMITED AMOUNT
OF TIME TO AN ISSUE THAT IS OF
CONCERN TO ME AND THIS IS THE
ISSUE OF THE FAILURE TO OBJECT
TO THE DOCTOR'S TESTIMONY.
AND WHAT I AM CONCERNED ABOUT
THERE FROM YOUR STANDPOINT IS
WITH IT THE EVIDENCE THAT WAS IN
THE RECORD FROM O'BRIEN, THIS
PRIOR VIOLENT FELONY, THE
BEATING TO DEATH OF THE CHILD
AND THEN, THE -- SEVERELY
INJURING ANOTHER CHILD, HOW IS
THAT EVIDENCE PREJUDICIAL?
IT WASN'T VERY -- THEY
EMPHASIZED IN THE CLOSING
ARGUMENT IN THIS CASE -- WE
DIDN'T EVEN MENTION IN OUR
DIRECT APPEAL.
I UNDERSTAND.
I THINK THE MAIN THING ABOUT
THIS CASE AND YES, THEY
CONSIDERED THE DOCTOR'S
TESTIMONY IN CONTEXT.
IS THAT THE STATE KNEW GOING IN
THAT BASICALLY IT WAS A ONE
WITNESS CASE AND HAD MR. PANOYAN
WHO HAD -- A FLIPPED
CO-DEFENDANT --
WELL, COULD ANYONE ELSE
IDENTIFY WILLIAMSON?
IN OTHER WORDS, OBVIOUSLY THE
SURVIVING HUSBAND WAS ABLE TO
TESTIFY TO WHAT HAPPENED.
BUT WAS THE -- YOUR CLIENT OR
THE DEFENDANT IN THIS CASE,
WHOEVER WAS THE PERPETRATOR, WAS
MASTERING THE WHOLE INCIDENT?
SO ARE YOU SAYING THAT --
NO ONE.
NO ONE OTHER THAN --
NO ONE OTHER THAN MR. PANOYAN
WHORES ACTUALLY CHARGED WITH THE
CRIME AND IM PRISONED, IN JAIL
18 MONTHS.
NO ONE ELSE COULD HAVE
IDENTIFIED MR. WILLIAMSON.
THAT'S CASE PROGRESSED,
MR. PANOYAN ESSENTIALLY MADE THE
CASE, ONCE HE AGREED TO BE AND
IN FORM MANTLE TO THE
GOVERNMENT.
THE ONLY OTHER THING THE
GOVERNMENT COULD DO WAS FIND
THREE OTHER PEOPLE IN JAIL WITH
MR. WILLIAMSON, AND THEY ALSO
TESTIFIED THAT WHILE HE WAS IN
MY CELL HE TOLD ME THIS AND
THAT.
ONE OF THOSE -- ONE OF THOSE
WITNESSES, O'BRIEN, SAID THAT
RODNEY WILLIAMSON, THAT HIS
BROTHER HAD IMPLICATED RODNEY
WILLIAMSON, AND RODNEY
WILLIAMSON DID NOT TESTIFY IN
THIS CASE, CORRECT?
THAT'S CORRECT.
BUT THERE WAS IN THE RECORD
THAT HE WAS THERE BY REASON OF
WHAT WILLIAMSON TOLD O'BRIEN.
WELL, THERE IS ALSO ANOTHER
BROTHER, VERNON WILLIAMSON WHO
WAS A SUSPECT IN THE CASE AND
MR. WILLIAMSON HIMSELF, DANA
WILLIAMSON, MY CLIENT, MADE
COMMENTS INDICATING THAT HE
THOUGHT THAT MAYBE RODNEY AND
HIS BROTHER, VERNON, HAD BEEN
INVOLVED IN THIS BUT NOT HIM
BUT, ESSENTIALLY, THE NATURE OF
THE CASE IS THAT THEY HAD THE
ONE WITNESS, MR. PANOYAN WHO WAS
IN ON THE CRIME AND MADE A
STATEMENT SAYING HE DIDN'T KNOW
WHO COMMITTED THE CRIME AND HE
WAS INNOCENT AND HOGTIED DURING
IT AND THEY FLIPPED HIM AND SAID
DANA WILLIAMSON COMMITTED THE
CRIME AND THAT IS BASICALLY THE
ENTIRE CASE, NO FORENSIC
EVIDENCE TO SUPPORT THE
STATEMENT AND HAD THE OTHER
THREE JAIL INMATES TESTIFYING
BUT IT IS THE KIND OF CASE THAT
IS WEAK --
I WANT TO ASK YOU --
AND THE DOCTOR WAS --
YOU DO HAVE THAT, YOU DO HAVE
THE HAT.
THE GOVERNMENT'S WHOLE CASE
IS BASICALLY DESIGNED TO BOLSTER
THE TESTIMONY OF CHARLES
PANOYAN.
AND IT IS A WEAK --
YOU ARE ARGUING FOR AN
EVIDENTIARY HEARING, YOU AREN'T
SAYING AT THIS POINT WE SHOULD
GRANT A NEW TRIAL.
ON THE -- THE GRAY ISSUE I
WOULD SUBMIT THE WHOLE CASE IS
SUBJECT TO REVERSAL.
ON THE PENALTY -- YOU ARE
ARGUING FOR REVERSAL ON THE
PENALTY PHASE.
ON THE GRAY ISSUE, I WOULD
ALSO ARGUE THE GUILT PHASE.
THE COMMISSION WAS FOR FIRST
DEGREE MURDER, PREMEDITATED OR
FELONY MURDER, ONE OF THE
UNDERLYING FELONY WAS ATTEMPTED
FIRST DEGREE MURDER WHICH IS
DETERMINED TO BE A NONEXISTENT
OFFENSE FOR PURPOSES OF THIS
CASE SO IF THE JURY IN THEORY
FOUND MR. WILLIAMSON GUILTY OF
FIRST DEGREE MURDER AS A FELONY
MURDER WITH ATTEMPTED FIRST
DEGREE FELONY MURDER WHICH DOES
NOT EXIST THE -- AS THE
UNDERLYING FELONY OF COURSE THE
ENTIRE WAYS WOOF TO BE REVERSED.
WHAT ABOUT THE OTHER FELONIES
THAT WERE FOUND.
KIDNAPPINGS, EXTORTIONS
AND...
THE COURT HAS MULTIPLE TIMES
DECIDED IF YOU HAVE OTHER FELONY
CONVICTIONS, BUT ALSO
NONEXISTENT OFFENSES ESSENTIALLY
THE COURT HAS TO SUBSTITUTE
ITSELF FOR THE FACT-FINDING
FUNCTION OF THE JURY TO DECIDE
WHICH ONE THE JURY ACTUALLY
RELIED UPON, IN THE CASE, THE
WILLIAMSON CASE, THE ATTEMPTED
FIRST DEGREE MURDER CONVICTIONS
EVEN THOUGH THEY HAVE BEEN
DETERMINED TO BE NONEXISTENT
WERE VERY SEVERE CASES, AND IF
THE JURY DETERMINED THAT, YOU
KNOW, THE SHOOTING THE CHILD IN
THE BACK OF THE HEAD WAS SO
HEINOUS, THAT THAT IS THE
UNDERLYING FELONY WE'LL FIND HIM
GUILTY OF FIRST DEGREE MURDER
FOR, FIRST DEGREE FELONY MURDER.
YOU ARE SAYING THE JURY WAS
INSTRUCTED ON FIRST DEGREE MEL
FUNNY MURDER AND THE BASIS OF IT
WAS -- FIRST DEGREE FELONY
MURDER AND THE BASIS WAS FIRST
DEGREE MURDER AND KIDNAPPING AND
THE OTHER FELONIES, THAT WERE --
YES.
THERE WERE ALTERNATE THEORIES
FOR EVERY COUNT.
FOR THE 1st DEGREE.
IT COULD BE EITHER
PREMEDITATION OR FELONY MURDER
AND FOR ALL OF THE ATTEMPTED 1st
DEGREE MURDERS, IT WAS
PREMEDITATED, ATTEMPTED OR --
BUT I'M TALKING ABOUT THE 1st
DEGREE MURDER CONVICTION ITSELF.
THE JURY WAS INSTRUCTED ON
PREMEDITATED MURDER, CORRECT.
THAT'S CORRECT.
THE JURY WAS INSTRUCTED ON
FELONY MURDER.
CORRECT.
AND THE FELONIES THAT THEY
WERE INSTRUCTED ON WERE WHAT?
BASICALLY ALL OF THE OTHER
FELONIES IN THE CASE.
I'M LOOKING AT TWO -- LOOKING
AT -- IT SAYS THE CAPITAL --
NONEXISTENCE ONES.
THE SENTENCING ORDER SAYS THE
CAPITAL FELONY WAS COMMITTED
WHILE THE DEFENDANT WAS ENGAGED
IN AND LISTS THE CRIMES BUT IT
STARTS WITH ROBBERY.
SEXUAL BATTERY, ARSON, BURGLARY,
KIDNAPPING, AND DOES NOT TALK
ABOUT ATTEMPTED 1st DEGREE
MURDER.
NEVERTHELESS, THE JURY
INSTRUCTION ACTUALLY EXPLAINED
FELONY MURDER AND THE OTHER
UNDERLYING FELONIES --
AND THE QUESTION WAS, AND
THAT INSTRUCTION INCLUDED
ATTEMPTED MURDER?
ON THE OTHER?
I'M NOT SURE SPECIFICALLY
INCLUDED IT BUT GAVE THE
DEFINITIONS OF THE OTHER -- OF
THE OTHER UNDERLYING --
THAT WOULD BE PRETTY
IMPORTANT.
I MEAN, WE ARE RIGHT HERE AND
YOU MIGHT HAVE A POINT, IT WOULD
SEEM TO ME ON THE CRITICAL
POINT.
WHICH IS WHAT WAS THE JURY
INSTRUCTED ON.
YOU WOULD BE ABLE TO TELL US,
WHETHER THE -- BECAUSE THERE WAS
NO SEXUAL BATTERY IN THE CASE,
WAS THERE?
NO.
ALL RIGHT, SO IT WASN'T SOME
-- LET'S ASSUME IT WAS A
CUSTOMIZED JERRY INSTRUCTION.
DID THE JURY INSTRUCTION INCLUDE
#NAME?
INCLUDE ATTEMPTED 1st DEGREE
MURDER?
FELONY MURDER?
ATTEMPTED FELONY MURDER.
YOU MEAN FOR THE GUILT PHASE?
THAT IS WHAT -- I GUESS THAT
IS WHAT WE ARE TALK ABOUT WHEN I
SAID IT WOULD REQUIRE A NEW
PENALTY PHASE AND YOU SAID, NO,
IT WOULD REQUIRE A NEW GUILT
PHASE ON THE GRAY ISSUE BECAUSE
THE JURY WAS INSTRUCTED IN A
GENERAL AND RETURNED A GENERAL
VERDICT ON 1st DEGREE MURDER AND
THAT IS PRETTY IMPORTANT RIGHT
NOW.
I THINK IT IS IMPORTANT.
WE CAN FIND THIS IN THE
RECORD, YOU WOULD AGREE IF THEY
WERE INSTRUCT ON KIDNAPPING OR
ROBBERY, THEN AS THE UNDERLYING
FELONIES, THAT --
IT WOULD NOT -- I AGREE WITH
THAT.
IT WOULD NOT APPLY TO THE GUILT
PHASE OF THE TRIAL.
OKAY.
I WANT TO -- THIS IS JUST AS A
GENERAL OBSERVATION OR QUESTION,
DID YOU RAISE IN YOUR -- LOOKS
LIKE LOOKING OVER ALL OF THE
GUILT PHASE ISSUES THAT YOU
RAISED, THEY ARE ALL ISSUES THAT
YOU COULD LOOK AT THE TRANSCRIPT
OF THE TRIAL AND SAY, THE LAWYER
SHOULDN'T HAVE DONE THIS,
SHOULDN'T HAVE DONE THAT.
I DON'T SEE ANYTHING IN A CASE
WHERE YOU ARE SAYING, 20, NOW 20
YEARS OLD AND IT IS KIND OF A --
YOU SAY A WEAK CASE, ANYTHING
THAT SHOWS THAT THE GOVERNMENT,
THE STATE DIDN'T -- FAILED TO
PRODUCE FAVORABLE EVIDENCE.
THERE ARE OTHER WITNESSES NOW
THAT COULD HAVE PLACED YOUR
CLIENT SOMEPLACE ELSE, AT ALL.
WERE ANY CLAIMS LIKE THAT RAISED
AND DENIED WITHOUT AN
EVIDENTIARY HEARING OR ARE THESE
ALL CLAIMS SOMEONE COULD READ
THE RECORD AND SAY WELL, THE
LAWYER SHOULD HAVE OBJECTED TO
THIS OR SHOULD HAVE DONE THAT?
THE ONLY POSSIBLE PIECE OF
FORENSIC EVIDENCE IN THIS CASE
WAS A STRAW HAT FOUND UNDERNEATH
ONE OF THE BODIES THAT DANA
WILLIAMSON AT ONE POINT MADE A
STATEMENT SAYING THAT HE HAD
ONCE HAD A SIMILAR HAT AND WE IN
ANOTHER PROCEEDING ACTUALLY
DEMANDED DNA TESTING OF THE
INSIDE RIM OF THE HAT SINCE
NOWADAYS WE HAVE THE ABILITY TO
TEST SUCH A THING AND THEY FOUND
NO USABLE EVIDENCE.
THAT WAS THE ONLY THING WE COULD
TRY AND DO IN THIS CASE, THE
ONLY PIECE OF EVIDENCE THAT
WOULD HAVE RE--
BUT THERE IS NO INDICATION
THAT THERE ARE OTHER SUSPECTS
THAT REALLY WERE THE REAL
PERPETRATORS HERE?
CLEARLY IT WASN'T A CRIME THAT
WAS DONE BY ONE PERSON.
AS I STATED, MY CLIENT HAD
ORIGINALLY MADE STATEMENTS
IMPLICATING HIS OWN BROTHERS.
MR. PANOYAN HAD HIS OWN REASONS
FOR INCULPATING DANA WILLIAMSON
AS OPPOSED TO VERNON OR RODNEY.
WHAT IS THE STATUS OF THEIR
BROTHERS, THEIR CONVICTIONS.
RODNEY WILLIAMSON WAS REVERSE
AND WHAT HAPPENED AFTER THAT I'M
NOT SURE.
YOU KNOW, I ASSUME HE HAD
ANOTHER PENALTY PHASE AND I
THINK GOT LIFE.
AND VERNON?
VERNON NEVER CHARGED.
JUST THE TWO, JUST RODNEY.
RIGHT.
AND THE TESTIMONY FROM
O'BRIEN WAS -- THAT'S WHAT THE
TESTIMONY FROM O'BRIEN WAS
ABOUT.
MY PROBLEM WITH THE WAY THE
TRIAL WAS CONDUCTED WAS
BASICALLY IT WAS THE STATE'S
ENTIRE INTENT EVEN DURING THE
JURY SELECTION WAS TO BOLSTER
THE TESTIMONY OF THEIR WITNESS,
THEY ACTUALLY ASKED A QUESTION
OF THE WHOLE JURY PANEL, HAVE
YOU EVER BEEN BETWEEN A ROCK AND
A HARD PLACE?
YOU KNOW, THE DEFENSE DIDN'T SAY
ANYTHING, I GUESS THEY WONDERED
WHY IS HE ASKING THAT AND HE
SORT OF WENT DOWN THE WHOLE
GROUP OF JURORS AND SAID, HAVE
YOU EVER BEEN BETWEEN A ROCK AND
A HARD PLACE AND YOU KNOW THAT
PHRASE MEANS, YOU KNOW WHAT IT
MEANS IN RELATION TO YOUR OWN
CHILDREN, YOU KNOW, WHAT IF YOU
GOT INTO A SITUATION WHERE YOU
HAD TO MAKE A CHOICE BETWEEN
DOING SOMETHING HORRIBLE AND
SAVING ONE OF YOUR CHILDREN,
THAT KIND OF THING AND SEEMED
OUT OF CONTEXT AT THE TIME THE
PROSECUTOR DID IT BUT, THEN,
QUICKLY, IN HIS OPENING
STATEMENT, HE SAID THE PERSON
THAT I WAS REFERRING TO IS --
INJURY SELECTION WHEN I SAID
HAVE YOU EVER BEEN BETWEEN A
ROCK AND A HARD PLACE WAS
CHARLES PANOYAN AND HE WAS,
ATTEMPTED TO PLACE THE JURY IN A
#NAME?
THROUGHOUT THE TRIAL AND THAT IS
WHY HE CALLED THE DOCTOR AND THE
DOCTOR TESTIFIED WITHOUT ANY
SCIENTIFIC BASIS --
YOU ARE ARGUING THIS IS A
VIOLATION OF THE GOLDEN RULE BUT
SEEMS LIKE THE CASES I'VE READ
AT LEAST AS FAR AS THE GOLDEN
RUMOR IS TO PUT YOURSELF IN THE
VICTIM'S SHOES.
AND PANOYAN WAS NOT THE VICTIM
HERE, ARE THERE ANY CASES THAT
SAY IT CAN RELATE TO OTHER
WITNESSES AS WELL?
WELL, THE PROSECUTOR'S CASE
WAS TO MAKE MR. --
I UNDERSTAND THAT.
IS THERE ANY OTHER CASE WHERE WE
HAVE SAID IT CAN RELATE TO A
WITNESS, WHERE THE PROSECUTOR
MAKES THE WITNESS LIKE THE
VICTIM?
THE CASES ARE, I WOULD SAY,
NOT THAT SPECIFIC.
THEY ARE VERY SPECIFIC.
USUALLY THE VICTIM THAT YOU ARE
PUTTING -- LOOKING AT.
THEY ARE SAYING, PUT YOURSELF IN
THE SHOES OF VICTIM.
SO IS THERE ANY CASE WHERE WE'VE
SAID THERE IS A VIOLATION OF THE
E GOLDEN RULE WHERE THEY DON'T
SAY, PUT YOURSELF IN THE
VICTIM'S SHOES.
NOT THAT I'M AWARE OF BUT
MR. PANOYAN TESTIFIED HE WAS
THREATEN WITH HIS LIFE AND THAT
HIS FAMILY WOULD BE ATTACKED AND
HIS SON WOULD BE CASTRATED AND
DAUGHTER WOULD BE RAPED IF HE
EVER TOLD ANYBODY ABOUT THIS AND
HE SAID HE WAS HOGTIED DURING
THE COURSE OF THE ROBBERIES.
AND, YOU KNOW, AND THIS STATE
ASSERTED THROUGHOUT THE CASE
THAT THAT WAS TRUE.
SO IF HE IS A -- IF THAT DOESN'T
MAKE HIM A VICTIM.
HE'S A WITNESS.
I MEAN, THAT IS WHERE HE SAID
IT.
IS THERE CASE LAW IN FLORIDA
THAT ADDRESSES WITNESS --
VICTIM AND --
ALL OF THE OTHER FELONIES AND
ROBBERIES --
NOT THE SUBJECT OF THIS
TRIAL.
ACTUALLY, NO.
I MEAN, THE DEFENSES WERE THE
ROBBERY -- HE WAS THE VICTIM IN
THE CASE.
YOU ARE WELL INTO YOUR
REBUTTAL TIME, YOU WANT TO SAVE
A LITTLE TIME FOR THAT, SO...
OKAY.
MAY IT PLEASE THE COURT, LISA
MARIE LERNER. I BELIEVE THE
JURY WAS INSTRUCTED ON THE
FELONY MURDER ON THE ROBBERY AND
ARMED BURGLARY THAT'S UNDERLYING
FELONIES.
AND THE STATE ATTORNEY'S CLOSING
ARGUMENT HE USED THE ROBBERY
CHARGES AND THE ARMED BURGLARY
FOR THE FELONY MURDER FOR BOTH
DONNA DECKER'S DEATH AS WELL AS
THE THREE ATTEMPTED --
YOU SAY I BELIEVE BUT THE
RECORD WILL SUPPORT THAT THOSE
WERE THE ONLY TWO UNDERLYING
FELONIES THAT THE JURY WAS
INSTRUCTED ON?
I THINK SO, YES.
HOWEVER, IF THE JURY WAS
INSTRUCTED ON FELONY MURDER, AND
ATTEMPTED FELONY MURDER WAS USED
AS A POSSIBLE UNDERLYING FELONY,
FOR THE FELONY MURDER, THAT THAT
WOULD BE REVERSIBLE ERROR.
FOR THE ENTIRE TRIAL?
OR JUST FOR --
1st DEGREE MURDER.
NO.
I DON'T BELIEVE IT WOULD.
BECAUSE THERE WERE ADDITIONAL
UNDERLYING FELONIES.
YOU HAD NUMEROUS COUNTS OF
ROBBERY, ARMED BURGLARY, YOU
ALSO HAD THE EXTORTION --
BUT THAT'S DEFENSE POINTS OUT
THERE IS CASE LAW THAT INDICATES
THAT IF ONE OF THOSE POSSIBLE
THEORIES AND WE DON'T HAVE A
SPECIAL VERDICT FORM HERE, TO
KNOW WHAT FELONY MURDER -- IF
FELONY MURDER WAS FOUND AND
UNDER WHAT CIRCUMSTANCES, IF ONE
OF THE UNDERLYING FELONIES THAT
WAS USED WAS NONEXISTENT CRIME,
THEN DON'T YOU HAVE TO REVERSE
BECAUSE WE HAVE NO IDEA OF
WHETHER OR NOT THE JURY ACTUALLY
USED THAT AS THE BASIS FOR THE
FELONY MURDER.
FELONY MURDER.
WELL, NO, I DON'T THINK YOU
DO.
BECAUSE AS I SAID YOU HAVE THE
OTHER FELONIES.
AND THE WAY THAT THE STATE
PRESENTED ITS CASE IN CLOSING,
THEY FOCUSED SOLELY ON THE
ROBBERY AND ARMED BURGLARY.
WE -- YOU KNOW, IF THE RECORD
SUPPORTS YOU WE DON'T HAVE TO GO
FURTHER BUT THERE ARE CASES THAT
WE ARE -- WE HAVE, AFTER WE
CHANGED THE DEFINITION OF
BURGLARY IF THERE IS A LEGALLY
INSUFFICIENT THEORY, THAT THE
JURY COULD HAVE CONVICTED ON,
AND THE GENERAL VERDICT FORM, I
BELIEVE, THAT THE CASE LAW SAYS
YOU HAVE TO REVERSE BUT IF YOU
ARE RIGHT, YOU HAVE TO GET TO
THAT AS TO THE GUILT PHASE, SO,
LET'S -- I MEAN, WE'LL -- THE
RECORD WILL SHOW IT OR NOT.
AND I'M ASSUMING IF IT WASN'T
BROUGHT TO OUR ATTENTION THAT
YOU ARE PROBABLY RIGHT ON THIS
PARTICULAR POINT.
I'M CONCERNED ABOUT -- THIS IS A
SUMMARY DENIAL OF ALL CLAIMS AND
I THINK AS TO MOST OF THEM, THEY
ARE EITHER NOT ERROR OR YOU CAN
#NAME?
AM CONCERNED ABOUT THIS DOCTOR'S
TESTIMONY.
AND WHY THERE SHOULDN'T BE AN
EVIDENTIARY HEARING AND JUST AT
LEAST TELL YOU FROM MY POINT OF
VIEW, MR. PANOYAN, OBVIOUSLY IS
A CRITICAL WITNESS.
THE STATE THOUGHT HE WAS A
CRITICAL WITNESS.
AND WE'VE BEEN SUPPLIED AND READ
THE DOCTOR'S TESTIMONY IN FULL,
AND IT APPEARS THAT ESSENTIALLY
WHAT WE DID WAS BOLSTER THE
TESTIMONY OF THE WITNESS BY
COMING UP WITH THE THEORY OF --
HE ACTED AS SOMEBODY THAT HAD A
CREDIBLE THREAT AND THAT IS WHAT
SOMEBODY WOULD DO.
I AM -- IN THE REPLY BRIEF THEY
POINTED OUT MANY CASES WHERE THE
DOCTOR IN OTHER STATES HAS NOT
BEEN ABLE TO TESTIFY TO THIS
KIND OF PATTERN EVIDENCE.
AT THE VERY LEAST, IT WOULD SEEM
THAT AN EVIDENTIARY HEARING
WOULD BE WARRANTED TO FIND OUT
WHY THE LAWYER DIDN'T EVEN VOIR
DIRE THE WITNESS.
MADE NO ATTEMPT TO EXCLUDE HIS
TESTIMONY, AND, YOU KNOW, REALLY
UNDERSTAND THE WHOLE CONCEPT IN
WHICH THIS AROSE.
AND CAN YOU EXPLAIN TO ME WHY WE
SHOULDN'T REVERSE FOR AN
EVIDENTIARY HEARING ON THAT
POINT, BECAUSE I'M SOMEWHAT
CONCERNED THAT ALTHOUGH IT
WASN'T MENTIONED IN DIRECT
APPEAL, IT IS PRETTY POWERFUL
TESTIMONY, THE DOCTOR HAD, ABOUT
THE EFFECT OF YOU KNOW WHY
SOMEBODY ONE COME FORWARD IF
THEY HAD THIS KIND OF THREAT AND
PLUS HE EVEN INTERVIEWED THE
WITNESS, SO HE DIDN'T -- YOU
KNOW, SO, AGAIN HE WAS SORT OF
BOLSTERING THE WITNESS BY SAYING
THIS WAS A CREDIBLE THREAT.
SO IF YOU COULD AT LEAST EXPLAIN
WHY SUMMARY DENIAL IS WARRANTED,
OR WHY WE SHOULDN'T BASED ON OUR
CASE LAW AT LEAST ALLOW AN
EVIDENTIARY HEARING ON THIS
POINT.
WELL, INITIALLY, THE MOVING
PAPERS ARE 3850 SAID THAT THE
ATTORNEY WAS DECISIONED FOR NOT
VOIR DIRING HOWEVER THEY DID NOT
BRING OUT IN THE PAPERS ANY
ASPECTS THAT HE COULD HAVE
BROUGHT UP DURING VOIR DIRE.
THE INFORMATION THAT WAS IN THE
REPLY BRIEF WAS NOT BEFORE THE
TRIAL COURT.
IT WAS NOT IN THE ORIGINAL 3850.
MORE AS THE COURT IS AWARE WAS
IT IN THE ORIGINAL APPELLATE
BRIEF HERE.
THE FIRST TIME THAT INFORMATION
APPEARED IN THIS CASE, IS IN
THAT REPLY REEF BRIEF.
THE TRIAL COURT HAD NONE OF THAT
INFORMATION.
AT THE TRIAL, THE DEFENSE
ATTORNEY HAD THE DOCTOR'S CD, HE
HAD HIS REPORT ON HIS INTERVIEW
WITH PANOYAN AND HAD SPOKEN WITH
THE EXPERTS --
BUT HE TALKED TO HIM
APPARENTLY FOR ABOUT 10 MINUTES,
BEFORE HE WENT ON THE STAND.
DEFENSE COUNSEL DID.
AND THIS DOCTOR HAD A BACHELOR'S
DEGREE IN PSYCHOLOGY.
A Ph.D. IN SOCIOLOGY.
HE HAD NEVER BEEN A TREATING
PSYCHOLOGIST.
HE HAD DONE MERELY STUDIES OF
VARIOUS TYPES OF CONFESSIONS AND
#NAME?
THAT, HOWEVER, CERTAINLY, AN
OBJECTION SHOULD HAVE BEEN MADE
AS TO WHAT IS A SOCIOLOGIST
DOING TESTIFYING AS TO THE FEAR
BY AN INDIVIDUAL UNDER THREAT?
WELL, I PRECISELY DISAGREE.
I DON'T THINK THE DOCTOR
TESTIFIED ABOUT THE FEAR.
THE CORE OF HIS TESTIMONY WAS
BASED ON HIS EXPERIENCE AS A
PSYCHOLOGIST, BE IT AN
UNDERGRADUATE DEGREE IN
SOCIOLOGY DEGREE.
HE WAS A PROFESSOR OF PSYCHOLOGY
AT THE UNIVERSITY OF CALIFORNIA
--
HE WAS A PROFESSOR OF
SOCIOLOGY.
AT BERKELEY AND HE ALSO HAD
BEEN QUALIFIED AS AN EXPERT IN
OVER 25 TRIALS AS AN EXPERT IN
THE AREA OF INFLUENCING CONTROL.
AND IT WAS THAT AREA THE DOCTOR
WAS TESTIFYING AND HIS TESTIMONY
WAS --
DID THE RECORD INDICATE
WHETHER THE DOCTOR'S TESTIMONY
HAD EVER BEEN FRYE TESTED IN
FLORIDA.
THE TRIAL RECORD, NO.
AND AND CLEARLY AT THAT POINT
IN TIME FLANNAGAN WAS OUT THERE.
AND FLANNAGAN SAID THAT IF THERE
IS A MIXTURE EVEN OF PURE
OPINION TESTIMONY WHICH HAD TO
BE A CLINICAL STUDY, AND PROFILE
TESTIMONY YOU NEEDED IT FRYE
TESTED AND PROBABLY WASN'T
ADMISSIBLE.
WELL, I DON'T BELIEVE THAT
THE DOCTOR TESTIFIED HE SAID A
PROFILE OR A SYNDROME.
IT WAS NOT LIKE A CHILD SEXUAL
ABUSE CASE WHERE THEY SAID THE
CHILD IS DOING X, Y AND Z AND
PROVED THAT HE WAS MOLESTED.
WHAT YOU ARE SAYING, THOUGH,
WITH OUR QUESTIONS, IS SOMETHING
THAT JUST LEAPS OUT FROM THE
RECORD HERE.
THAT IS, IN TERMS OF, WE GO BACK
TO THE CASES WHERE WE HAVE HELD
THAT ONE WITNESS REALLY CANNOT
COMMENT ON THE TRUTHFULNESS OR
THE CREDIBILITY OF ANOTHER
WITNESS, YOU KNOW, DIRECTLY.
THERE MAY BE SOME CHARACTER
EVIDENCE OR SOMETHING LIKE THAT.
AND SO, THIS IS REALLY JUMPING
OUT TO ALL OF US THAT YOU KNOW,
WHAT IS GOING ON HERE?
ARE WE GOING TO END UP IN OUR
CRIMINAL COURTS WITH EXPERT
WITNESSES NOW LIKE THIS PERSON
THAT COME IN AND SAY, WELL, I
HAVE LOOKED AT THE TESTIMONY OF
THE POLICE INFORMANT OR OF THE
PRISONER THAT WAS IN THE OTHER
CELL, OR OF THE WITNESS TO THESE
EVENTS, AND EVERYTHING, AND IN
ESSENCE, TELL A JURY THAT I
THINK THAT PERSON IS TELLING THE
TRUTH.
THAT UNDER THOSE CIRCUMSTANCES
#NAME?
REALLY JUMPING OUT AT US IN
TERMS OF THE DEFENSE LAWYER
REALLY NOT DOING ANYTHING THAT
#NAME?
THEN, WHAT WE HAVE IS THERE IS
NO HEARING HERE, YOU KNOW, THE
TWO -- TO EXPLORE ALL OF THIS
AND WHAT WAS GOING ON WITH THE
DEFENSE LAWYER OR WHATEVER.
SO, YOU KNOW, ESSENTIALLY WHAT
WE HAVE IS A DENIAL WITHOUT ANY
EXPLORATION IN AN AREA THAT IS A
VERY QUESTIONABLE -- VERY
QUESTIONABLE IN TERMS OF THE
ADMISSIBILITY OF THIS KIND OF
EVIDENCE.
THAT IT IS A VERY DANGEROUS ROAD
THAT WE APPEAR TO BE TRAVELING
AND RECOGNIZING, YOU KNOW,
NOTHING ON DIRECT APPEAL AND ALL
OF THAT, AND WHICH MAY WELL LEAD
TO A DENIAL OF THE CLAIM ON THE
MERIT, YOU KNOW, IF IT IS
EXPLORED PROPERLY.
YOU KNOW, THAT THE -- WHATEVER
IS GOING ON HERE... BUT I THINK
YOU CAN HEAR OUR CONCERN THAT
WITHOUT ANY -- AS OPPOSED TO --
WE'RE NOT SUPPOSED TO HAVE THESE
CASES WHERE WE HAVE GOT TO DO
ALL THE WORK IN ORDER TO SUSTAIN
A JUDGE'S SUMMARY DENIAL.
SO WHERE ARE WE GOING WITH
TESTIMONY LIKE THIS?
IS THIS FELLOW GOING TO TESTIFY
IN THE NEXT CRIMINAL TRIAL AND
SAY THE WITNESSES ARE ALL
TELLING THE TRUTH THAT TESTIFY
FOR THE STATE?
WELL, FIRST OF ALL, I DON'T
THINK HE DID TESTIFY THAT
PANOYAN WAS CREDIBLE.
I THINK THIS IS CLOSER TO --
CREDIBLE.
I THINK IT IS CLOSER TO RAMIREZ
WHERE THE COURT DISCUSSED
WHETHER OR NOT EVIDENCE COULD
COME IN, THE DEFENSE USES --
WHETHER OR NOT KNIFE EVIDENCE
COME IN AND SAY, THIS PARTICULAR
KNIFE MADE THIS PARTICULAR
WOUND.
AND THE CORE SAID YOU CAN'T DO
THAT.
YOU NEED A FRYE HEARING.
I DON'T SEE HOW THAT COULD
POSSIBLY BE -- WE'RE TALKING
ABOUT APPLES AND ORANGES HERE.
YOU KNOW, OBJECTIVE OR WHAT IS
PERCEIVED TO BE OBJECTIVE
PHYSICAL EVIDENCE OF SOMETHING
THAT PEOPLE CAN -- AS OPPOSED TO
THE CIRCUMSTANCES SURROUNDING A
WITNESS WHO OBVIOUSLY, YOU KNOW,
PERHAPS -- OBVIOUSLY FOR VERY
GOOD, LEGITIMATE REASONS, YOU
KNOW, HAS NOT COME FORTH BEFORE,
AND NOW IS THE -- YOU KNOW, THE
KEY WITNESS IN THE CASE.
HAVING AN EXPERT WITNESS,
REALLY, TAKE ALL THESE
CIRCUMSTANCES AND SORT OF SAY,
WELL, THAT IS ALL RIGHT.
IT IS UNDERSTANDABLE.
YES, THEY DO ALL THE TIME AND
IN RAMIREZ SAID IN THAT CASE, IF
THE EXPERT IN THE CASE SAID THE
WOUND IS CONSISTENT WITH BEING
MADE BY THE KNIFE IT IS OKAY.
AND THAT HAPPENS ALL THE TIME
BUT IT HAPPENS WITH THE DEFENSE.
WE HAVE DEFENDANTS GETTING UP
THERE, SAYING, YOU KNOW, THE
DEMONS WERE CHASING ME AND,
THEREFORE, I DID X, Y AND Z.
LET ME ASK THE QUESTION FROM
A SLIGHTLY DIFFERENT ANGLE.
WHY DO WE NEED AN EXPERT TO TELL
US THAT IF YOU THREATEN TO KILL
SOMEBODY'S FAMILY HE IS MORE
LIKELY TO DO WHAT YOU WANT?
EVEN IF IT IS ILLEGAL?
BECAUSE IT GOES TO PANOYAN'S
ENTIRE SERIES OF ACTIONS OVER A
TWO TO THREE-YEAR PERIOD AND IT
WASN'T A SITUATION WHERE THE
STATE DIDN'T HAVE A WITNESS THAT
DIDN'T COME FORWARD FOR A MONTH
OR TWO.
HE DIDN'T COME FORWARD FOR
TWO-AND-A-HALF YEARS.
AND THE REASON HE DIDN'T COME
FORWARD WAS BECAUSE THE
DEFENDANT THREATENED TO
MUTILATE, TO KILL HIS FAMILY AND
SO WHY DO WE NEED AN EXPERT TO
TELL US THAT IF YOU HAVE THREATS
AGAINST SOMEBODY'S FAMILY, HE IS
MORE LIKELY NOT TO TESTIFY
AGAINST YOU IN ORDER TO PROTECT
HIS FAMILY?
WELL, THAT'S TRUE OF MANY
EXPERT WITNESSES.
WHETHER OR NOT THE WITNESS IS
TESTIFYING TO AN ISSUE THAT THE
JURY ULTIMATELY HAS TO DECIDE,
DOESN'T MEAN THAT THE EXPERT
CAN'T ASSIST THE JURY IN
ANALYZING THE EVIDENCE.
BUT APPARENTLY THE PROSECUTOR
IN THIS CASE DIDN'T THINK THIS
DOCTOR'S TESTIMONY WAS ALL THAT
IMPORTANT IN THAT HE MENTIONED
IT IN THREE LINES THAT I HAVE
FOUND AND -- IN HIS CLOSING
ARGUMENT.
THAT'S TRUE.
AND FOCUS ON THE EXPERT.
THE EXPERT TESTIFIED, AND IT WAS
A SINGLE PART OF THE TRIAL, THE
TRIAL LEFT -- HAD 45 WITNESSES
AND --
THAT IS WHAT IS DISTURBING TO
ME IS WHY THE STATE WOULD TAKE
THAT TYPE OF RISK IN A CASE LIKE
THIS.
BUT LET ME ASK YOU TO ADDRESS
THE PREJUDICE PRONG.
WE ASSUMED SOUP THAT THIS WAS AT
LEAST THERE AT LEAST SHOULD BE
AN EXPLANATION BY THE LAWYER AS
TO WHY THERE WAS NO OBJECTION
BUT WE HAVE EXAMINED THE
PREJUDICE.
YES.
AND I DO NOT BELIEVE THAT THE
DEFENSE HAS MET THE PREJUDICE
PRONG.
AS YOU POINTED OUT, THIS
TESTIMONY WAS NOT RELIED ON
SUBSTANTIALLY IN CLOSING
ARGUMENTS.
ADDITION, THE STATE PUT ON A
NUMBER OF OTHER WITNESSES THAT I
WON'T SAY BOLSTER BUT
SUBSTANTIATE PANOYAN'S FEAR.
THEY PUT ON THE SECURITY GUARD
WHO TESTIFIED THAT PANOYAN WENT
TO THE SHOPPING CENTER
IMMEDIATELY SAID, WHAT HAPPENED,
WAS SHAKING, WAS SCARED, ASKED
THE MAN TO CALL THE POLICE.
CALLED HIS WIFE, TWO EMPLOYEES
OFFICERS WHO TALKED TO PANOYAN
THAT NIGHT SAYING HE WAS AFRAID
FOR HIS CHILDREN.
SENT POLICE OVER TO HIS HOUSE.
AND A NUMBER OF OTHER WITNESSES
WHO FOLLOWED PANOYAN'S ACTIONS.
LET ME --
THIS IS MY CONCERN AGAIN, WE
ARE TALKING ABOUT WHETHER AN
EVIDENTIARY HEARING SHOULD BE
HAD ON THIS, NOT WHETHER
ULTIMATELY PREJUDICE WOULD BE
FOUND.
THERE IS ALSO A LOT THAT WOULD
BE CONSISTENT WITH SOMEBODY WHO
PARTICIPATED IN THE CRIME AND
THEN FOR WHATEVER HIS OWN
REASONS WERE, SET UP THE STRAW
MAN TO BLAME THIS ON, EVEN
THOUGH OTHER PEOPLE WERE
INVOLVED.
THAT WOULD BE THE DEFENDANT'S
THEORY.
AND AS I READ THE DOCTOR'S
TESTIMONY, TO ME IT IS VERY
CHILLING TESTIMONY IN TWO WAYS,
FIRST OF ALL, HE INTERVIEWED
PANOYAN.
SO, HE'S KIND OF ANOTHER PERSON
THERE, THAT IS ADDING TO LIKE
ANOTHER WITNESS FOR PANOYAN AND
ALTHOUGH YOU SAY THAT HE DIDN'T
COMMENT ON THE CREDIBILITY OF
PANOYAN, IF YOU GO TO THE RECORD
AT 2233, HE GOES THROUGH IN
REVIEWING THE HISTORY OF THE
EXPERIENCE IN CONNECTION WITH
THE INVASION, THE DEATH, HE IS
ONE WHO WAS FOR BETTER WORD THAN
TERRORIZED, SOMEONE ACTING IN
RESPONSE TO A CREDIBLE THREAT.
NOT ONLY TO HIMSELF, BUT FAMILY
AND HE GOES THROUGH THAT AND
THEN, HE SPENDS THE REST OF HIS
TESTIMONY GIVING THESE HORRIBLE
EXAMPLES OF PEOPLE WHO HAVE BEEN
KIDNAPPED, TORTURED, FOR YEARS
ON END, WHICH I CERTAINLY NOBODY
IN THE CLOSING ARGUMENT COULD
USE THAT.
SO, EVEN THOUGH THE DEFENSE -- I
MEAN, I'M SORRY.
THE STATE DOESN'T REFER TO HIM
EXTENSIVELY, I DON'T KNOW HOW
YOU WIPE THAT OUT OF THE JURY'S
MINE, AND CERTAINLY IT WAS
CHILLING TESTIMONY TO ME, AND SO
THAT IS WHY I THINK -- I'M
ASKING WHY WE SHOULDN'T HAVE AN
EVIDENTIARY HEARING TO KIND OF
SEE, WELL, IN THE REAL WORLD OF
THIS TRIAL, WAS THIS A BLIP OR
WAS IT SOMETHING, ONCE YOU HEAR
IT, AS A JUROR, YOU KNOW, IT IS
GOING TO HAVE AN IMPACT?
WELL, I UNDERSTAND YOUR
CONCERN BUT I DO SAY THAT IF WE
LOOK AT THE RECORD THAT WE HAVE
FROM THE TRIAL, IT IS A
BLIP.
WE HAD PANOYAN HIMSELF
TESTIFYING TO THESE HORRIBLE
THREATS AND HE DETAILED THEM AND
THIS WAS PANOYAN TESTIFYING
ABOUT THREATS THAT HE SAID
WILLIAMSON MADE.
AND WE HAVE THE FACTS OF THE
CASE ITSELF.
SO ANYTHING --
BUT, IF YOU DON'T BELIEVE --
IT IS GOING TO RISE AND FALL,
THIS CASE, ESSENTIALLY RISES AND
FALLS ON PANOYAN.
SO, AGAIN, WHAT WE HAVE HERE IS
AN EXPERT WITNESS WITH
QUALIFICATIONS THAT HAVE NOT
BEEN FRYE TESTED AS FAR AS
WHETHER HIS HERE TO IS HAVE BEEN
GENERALLY ACCEPTED, BOLSTERING
THE ONLY WITNESS THAT CAN PUT
THE, YOU KNOW, NOOSE ON THE
DEFENDANT.
AND THERE IS NO WAY TO GET
AROUND THAT.
NOT LIKE THERE ARE THREE OTHER
EYE WITNESSES THAT SAY THAT WHAT
PANOYAN SAID HAPPENED HAPPENED.
THAT IS WHY CONCERN.
I UNDERSTAND, BUT THE
DOCTOR'S TESTIMONY WAS NOT THAT
PANOYAN FIT INTO A PROFILE OR A
#NAME?
HE SAID BASED ON HIS ACTIONS,
AND MY EXPERIENCE DEALING WITH
PEOPLE, IN DIFFICULT SITUATIONS,
HIS ACTIONS WERE CONSISTENT WITH
SOMEONE WHO WAS THREATENED.
THAT IS PURE EXPERT OPINION
TESTIMONY.
THAT DOES NOT NEED A FRYE
HEARING.
AND SECONDARILY, AGAIN, I GO
BACK TO THE ENTIRE RECORD.
THERE WERE AT LEAST FIVE OTHER
WITNESSES WHO TESTIFIED ABOUT
PANOYAN BEING THREATENED.
BECAUSE PANOYAN TOLD HIM AT THE
TIME HE WAS BEING THREATENED.
HIS CHILDREN WERE THREATENED.
AND SO, TAKEN AS A WHOLE, I
DON'T BELIEVE THE DEFENSE CAN
SHOW PREJUDICE IN THIS, EVEN TO
HAVE AN EVIDENTIARY HEARING.
AND FINALLY I WANTED TO POINT
OUT TO THE COURT THAT THERE WERE
TWO ADDITIONAL ITEMS OF EVIDENCE
THAT DID LINK DANA WILLIAMSON TO
THE CRIME.
THERE WAS THE HAT, WHICH
MR. WILLIAMSON SAID WAS -- THE
DETECTIVE SHOWED IT TO HIM, YES,
THAT IS MY HAT AND THEN BACKED
OFF A LITTLE BIT AND SAID, WELL,
IT LOOKS JUST LIKE MY HAT AND HE
SAID AND HE SAID HIS BROTHER,
VERNON, MUST HAVE PLACED IT WITH
THE DEAD BODY TO SET HIM UP AND
WE HAVE WILLIAMSON ACKNOWLEDGING
THE HAT THAT WAS FOUND UNDER
MRS. DECKER'S BODY, IN THE
LOCKED CLOSET AS HIS HAT.
ADDITION, THERE WAS A NINJA
BELTED WHICH THE STATE PROVED
THAT HIS BROTHER, RODNEY,
PARTICIPATED IN THIS CRIME,
ORDERED A COUPLE MONTHS BEFORE
FROM THE VERY DISTINCT
MANUFACTURER.
THE MANUFACTURER'S LABEL WAS ON
THE BELT.
CENTS THEY HAD THE PROOF THEY
BOUGHT IT A COUPLE MONTHS BEFORE
AND IT WAS FOUND IN PANOYAN'S
TRUCK AND SO THERE IS SOME --
MAY NOT BE OVERWHELMING BUT
THERE IS ADDITIONAL EVIDENCE
LINKING MR. WILLIAMSON AS BEING
THE PERPETRATOR OF THE CRIME
BESIDES O'BRIEN AND PANOYAN.
AND ON THE GRAY ISSUE, ON THE --
I ASK THE COURT ON THE 3850, THE
GRAY DOES NOT APPLY, YOU HAVE
FOUND IT IS NOT RETROACTIVE AND
ON THE HABEAS IT WAS A PIPELINE
CASE, BUT THE COURT SHOULD JUST,
IF YOU ARE GOING DO IT, OVERTURN
ONLY THE THREE ATTEMPTED MURDER
CONVICTIONS.
AND SEND THEM BACK FOR RETRIAL.
BUT, LEAVE THE ADDITIONAL
FELONIES AND THE 1st DEGREE
MURDER AS IT IS.
THANK YOU VERY MUCH.
REBUTTAL?
THE REASON THE DOCTOR'S
TESTIMONY IS CRITICAL IS BECAUSE
THE CASE RISES AND FALLS ON THE
TESTIMONY OF WITNESS PANOYAN.
AND ESSENTIALLY THE GOVERNMENT
HAS TO PROVE THE CASE BASED UPON
A FLIPPED CO-DEFENDANT AN
EVERYTHING IN THEIR CASE WAS
DESIGNED TO BOLSTER THE WITNESS.
TO THE -- CAN I ASK YOU A
QUESTION?
TO THE EXTENT AS I ASKED THE
QUESTION OF THE STATE THAT THIS
IS SOMETHING WITHIN THE COMMON
KNOWLEDGE, REALLY OF JURORS OF
EVERYBODY THAT IF YOU ARE --
THEY THREATEN YOUR FAMILY YOU
WILL FOLLOW DIRECTIONS.
WHY DOES THAT NOT MAKE IT THEN,
NOT PREJUDICIAL BECAUSE HE'S NOT
OFFERING ANY MORE EVIDENCE THAN
THE JURY CAN ALREADY INFER BY
COMMON SENSE?
I'M SAYING IN A CASE LIKE
THIS ALMOST EVERYTHING IS
PREJUDICIAL BECAUSE WHAT THE
GOVERNMENT IS TRYING TO DO WITH
ALL OF THESE ARGUMENTS, ARGUING
CREDIBILITY AND WHY THE WITNESS
IS CREDIBLE AND HAVING A WITNESS
TESTIFY ABOUT WHY THE WITNESS IS
CREDIBLE IS THEY WANT TO CHANGE
THE BURDEN OF PROOF FROM --
BUT YOU HAVE TO -- YOU HAVE
TO AGREE THAT THE GOVERNMENT DID
NOT ARGUE THE DOCTOR IN CLOSING
ARGUMENT.
I MEAN, HE WAS OR THE OF A
FLASH.
FOUR WEEK TRIAL HERE AND AS I
SAY, I THINK THERE ARE THREE
LINES IN THE CLOSING ARGUMENT
THAT MENTION THE DOCTOR, AND HE
WAS NOT MENTIONED AT ALL IN THE
OPENING STATEMENT.
INSTEAD THE PROSECUTOR LINKED
IS A ARGUMENT AND TRIED TO PLACE
THE JURY IN THE SHOES OF THE
VICTIM, MR. PANOYAN IN HIS
OPINION AND THE DOCTOR -- AND
THEY FOUND THE WITNESS WAS UNDER
CREDIBLE THREAT AND USED --
THAT WAS USED TO DESCRIBE THE
TYPE OF THREAT FOR AN OPINION.
IN THAT HE WAS SAYING IF
CREDIBLE, I UNDERSTAND -- ISN'T
THAT A FAIR COMMENT --
THE PROSECUTOR LINKS THAT
WORD WITH HIS OWN ARGUMENT,
ABOUT BELIEVABLE THREATS.
YOU KNOW, I MEAN, HE WE WAS IT
THROUGHOUT AND -- WEAVES IT
THROUGHOUT AND FILES CHARGES
BECAUSE IT IS WARRANTED AND
MAKES AN ARGUMENT TO THE JURY
ABOUT HOW A BABY --
THAT REALLY WAS FOR -- WAIT A
MINUTE.
IN THE CASE --
LET HIM ANSWER THE QUESTION.
IN FAIRNESS, WHERE HE MADE
THE -- WE FILED IT BECAUSE THEY
ARE WARRANTED, WERE LISTING
THESE OTHER FELONIES.
THAT WERE FILED.
ISN'T THAT A FAIR READING OF THE
ORAL ARGUMENT.
I IT WOULD HAVE SAY THAT, YOU
KNOW, I'VE TRIED SEVERAL CASES
AGAINST THIS PARTICULAR
PROSECUTOR MYSELF PERSONALLY
AND, YOU KNOW, HE'S VERY ABLE --
A VERY ABLE PERSON.
BUT I MEAN --.
I'M BUILDING HIM UP TOO MUCH,
MAYBE --
AND I'M READING IT.
READING IT.
I ALSO NOTE IN RESPONSE --
RESPECT TO THE GRAY ISSUE THAT
IN OUR DIRECT APPEAL, OPINION,
THAT WE SAY THAT THE CAPITAL
FELONY WAS COMMITTED WHILE
WILLIAMSON WAS ENGAGED OR
ACCOMPLISHING THE COMMISSION OR
ATTEMPT TO COMMIT BURGLARY,
ROBBERY, AND KIDNAPPING, WE DID
NOT REFER TO ATTEMPTED FELONY
MURDER MORE DOES THE SENTENCING
ORDER.
SO DOESN'T THAT -- ISN'T THAT
PRETTY MUCH ON POINT.
ON THAT ISSUE.
YES.
CHIEF, MAY I ASK ONE
QUESTION?
AND PLEASE BE DIRECT WITH
YOUR OUT -- WE ARE OUT OF TIME,
SO....
I'M SORRY, I HAD TROUBLE
GETTING TO YOU.
LET ME ASK ONE QUESTION.
HYPOTHETICALLY, PUT YOURSELF IN
THE OTHER FOOT, IF PANOYAN HAD
BEEN CHARGED BY THE STATE IN THE
CASE AND HAD ATTEMPTED PRESENT
THE TESTIMONY OF THE DOCTOR, TO
MAKE THE ARGUMENT THAT HE WAS
UNDER THIS THREAT, WOULD THE
SAME ARGUMENT APPLY, THE
TESTIMONY WOULD NOT BE
ADMISSIBLE?
I WOULD SAY YES.
I MEAN, ESSENTIALLY, THE
DOCTOR'S TESTIMONY DOESN'T MEET
ANY SCIENTIFIC STANDARDS OR
EVIDENCE CODE STANDARDS AND
FAILS UNDER, BASICALLY, EVERY
POSSIBLE TEST.
HE NEVER TESTIFIED ABOUT THE
SPECIFIC EXPERTISE THAT HE HAD.
DO YOU AGREE HE WASN'T
TESTIFYING TO -- SUFFERING FROM
A PARTICULAR SYNDROME?
I AGREE TO THAT.
HE JUST SAID, YOU KNOW, THE
LANGUAGE IS IN MY BRIEF, THERE
IS A PATTERN, THE PATTERN, THE
WITNESS SHOWS IS THAT HE WAS
UNDER A CREDIBLE THREAT.
I MEAN,, YOU KNOW, I THINK THE
ENTIRE PURPOSE OF THE TESTIMONY
WAS FOR THE WITNESS TO
ESSENTIALLY VOUCH FOR IT.
THIS WOULD BE SOMEWHAT
SIMILAR TO THE EARLIER CASES --
SOMEWHAT SIMILAR TO THE CASES ON
DOMESTIC VIOLENCE, PEOPLE
CLAIMING THEY WERE VICTIMS OF
DOMESTIC VIOLENCE AN EXPLAINED
THEIR CRIMINAL BEHAVIOR AS A
RESPONSE TO BEING A VICTIM OF
DOMESTIC VIOLENCE.
CRIMINAL CASES AN DOMESTIC
VIOLENCE I AGREE, THAT TYPE OF
TESTIMONY SHOULD NOT BE
ADMISSIBLE.
THE JURY SHOULD BE THE ONES TO
LOOK AT THE WITNESS AND DECIDE
WHETHER OR NOT THEY ARE
CREDIBLE.
AND AT WHAT LEVEL.
THE PROSECUTOR THROUGHOUT ALL OF
THIS CHANGED THE BURDEN OF PROOF
FROM BEYOND A REASONABLE DOUBT
TO WHETHER YOU HAVE A GUT
FEELING ABOUT WHETHER YOU
BELIEVE THE WITNESSES WHICH IS
NOT E THIS BURDEN OF PROOF IN
THE CASE AND THAT THIS IS KIND
OF CASE HE HAS AND I UNDERSTAND
WHY HE -- HE'S DOING IT AND I
WAS A PROSECUTOR BEFORE MYSELF
AND THIS CASE IS, YOU KNOW, A
VERY WEAK CASE BASED UPON THE
PANOYAN TESTIMONY AND I WOULD
SUBMIT THAT EVERY PIECE OF
TESTIMONY, ESPECIALLY TESTIMONY
IN THE NATURE OF THE DOCTOR --
WITH THAT, YOU BOTH HAVE USED
YOUR TIME, PLUS ADDITIONAL TIME.
THANK YOU.
THANK YOU VERY MUCH, TAKE THE
CASE UNDER ADVISEMENT.
NEXT CASE ON THE CALENDAR IS
STATE OF FLORIDA VERSUS
MONINGER.
IF -- MONINGER IF I'M
PRONOUNCING THAT CORRECTLY.
MAY IT PLEASE THE COURT, I
REPRESENT THE STATE ON THIS
APPEAL, THE SECOND DISTRICT
COURT IN THE CASE, ERRED IN
FINDING THE VICTIM CAN NEVER
BEHAVE DUAL INTEREST IN
OBTAINING EVIDENCE TO
SUBSTANTIATE THEIR CLAIM.
WOULD YOU --
I THINK WE'RE BOTH GOING IN
THE SAME DIRECTION.
THOUGH MORE I LOOK AT THIS CASE,
I THINK YOU REALLY NEED TO GO
TOWARD, IS THERE REALLY CONFLICT
HERE AND EXPLAIN IT IN SOME
DETAIL AND THE MORE I LOOK AND
ANALYZE IT.
IT REALLY SEEMS WE HAVE
DIVERGENT FACTUAL PREDICATES AND
DO WE REALLY HAVE JURISDICTION
HERE.
JUSTICE I THINK IN THIS CASE
THE FACTS ARE MORE SIMILAR THAN
THEY WOULD APPEAR ON IMMEDIATE
GLANCE.
UNDER TREADWAY, LOOKING FOR
CONFLICT, WHAT WE HAD IN
TREADWAY WAS THE OWNER OF AND
INSURANCE AGENCY SETS UP AN
ANNUITY PROGRAM, ONE OF HIS
AGENTS INVESTS HIS OWN MONEY IN
IT AND ALSO INVESTS MONEY FROM
SOME OF HIS CLIENTS.
AND HE GOES INTO TRIAL, HE DID
NOT HAVE THE AUTHORITY TO LOOK
AT -- FILES HE DIDN'T HAVE THE
AUTHORITY TO LOOK AT, TO CHECK
ON HIS CLIENT'S FILES AND --
BEFORE YOU GO FURTHER ON
THOSE FACTS.
DID ANY STATE AGENT ASK THAT
PERSON TO GO INTO THE FILES?
NO.
NOT AT THAT POINT, YOUR HONOR.
WHAT HAPPENED IS HE GOES INTO
THE FILES AND HE THEN COPIES
FILES, GOES TO AN ATTORNEY, AND
HIS ATTORNEY GOES TO THE STATE.
AND OFFERS THIS EVIDENCE.
ISN'T THAT SIGNIFICANTLY
DIFFERENT WHEN SOMEONE IS ACTING
IN RESPONSE TO ENCOURAGEMENT, IF
NOT DIRECTION, ENCOURAGEMENT
FROM THE STATE.
IF IT HAD STOPPED THERE, YOUR
HONOR I BELIEVE YOU ARE RIGHT.
BUT IT DIDN'T.
THIS PERSON ENGAGED IN A
MONTH-LONG INVESTIGATION,
CONTINUING TO PROVIDE EVIDENCE
TO THE STATE AGAINST HIS
EMPLOYER.
WHO INITIATED THE CONTACT?
WAS IT THE AGENT INITIATING THE
CONTACT WITH THE STATE.
EXACTLY THE SAME AS WE HAD IN
MONINGER, WE HAVE THE VICTIMS OF
THE CRIME WHO INITIATES THE
CONTACT --
DID THE AGENT SAY I HAVE THE
DOCUMENTS AND GIVE THEM TO THE
STATE.
YES.
OKAY, DOESN'T THAT -- AND
WHETHER THIS CASE IS RIGHT OR
WRONG, IS REALLY A DIFFERENT
ISSUE.
DOESN'T THAT MAKE THAT A
DIFFERENT FACTUAL CASE THAN THIS
ONE.
NO.
BECAUSE IN THIS CASE, IT DIDN'T
STOP THERE.
HE CONTINUED TO PROVIDE MORE
EVIDENCE AND THIS IS AN ONGOING
EXCHANGE, OVER A SERIES, WHERE
THE AGENT AS YOU PROVIDED --
ACTUALLY PROVIDED MORE EVIDENCE.
BUT I GUESS, WE'RE TALKING
ABOUT THE 4th AMENDMENT AND IF,
IN THIS CASE, IN MONINGER, THE
YOUNG GIRL VICTIM HAD, HERSELF,
GONE AND WITHOUT DISCUSSION OR
URGING OR ACQUEISCENCE OF THE
POLICE -- ACQUIESCENCE OF THE
POLICE AND SEARCHED THE HOUSE
AND BROUGHT IT TO THE POLICE, WE
WOULDN'T BE HERE BECAUSE HE IS
#NAME?
WE ARE TALKING ABOUT A
APPLICATION FOR PRINCIPLE OF LAW
WHICH IS [INAUDIBLE] THAT IF A
PARTICULAR PRIVATE INDIVIDUAL
BECOMES IN ESSENCE A STATE
AGENT, THEN THE 4th AMENDMENT
APPLIES, THAT IS THE PRINCIPLE.
NOW, I THINK THAT WE'RE TALKING
THEN ABOUT AN APPLICATION FOR
PRINCIPLE TO A VERY DISCRETE SET
OF FACTS AND I'M STRUGGLING TO
SEE HOW YOU FIND CONFLICT
BETWEEN THE SECOND DISTRICT CASE
AND THE -- 2nd AND THE 4th
DISTRICT CASE.
BECAUSE THE PRINCIPLE IS WHAT
THEY ARE BOTH APPLYING.
NOW, THEY -- AND THE FACTS TO
ME, ALTHOUGH YOU SAY, WELL, IT
IS THE SAME BECAUSE -- I THOUGHT
YOU WERE SAYING IS BECAUSE THE
AGENT KEPT ON TURNING OVER
INFORMATION, BUT IT'S NOTE THIS
TURNING OVER THE INFORMATION
THAT IS THE 4th AMENDMENT
VIOLATION.
IT IS THE INSTIGATION AND
ENCOURAGEMENT OF THE POLICE
EXPRESSLY IN THE CASE THAT MADE
THE 2nd DISTRICT SAY THIS
APPLYING TREADWAY AND IN OUR
VIEW, BASED ON THE TIP LATE
FACTS AND OF COURSE YOU ARE
SMILING BECAUSE THAT REALLY GETS
THE STATE HERE, THE STIPULATED
FACTS, THESE FACTS DO NOT SHOW
THAT THEY WERE -- SHE WAS ACTING
SOLELY FOR OR PRIMARILY OR A
PRIVATE PURPOSE.
IT WAS -- AND THEY MAKE THE
CONCLUSION SO I DON'T SEE WHERE
THE CONFLICT IS.
I'LL START OFF, YOUR HONOR,
QUITE CANDIDLY, THE STATE DIDN'T
STIPULATE TO THESE -- THESE ARE
NOT WRITTEN STIPULATIONS, THE
STATE WANTED TO PRODUCE THE
VICTIM AND THEIR -- ALL THE
WITNESSES BUT THE TRIAL COURT
DECIDED.
IT APPEARS THE TRIAL COURT
WANTED TO APPLY A C4 PROCEDURE
TO --
WHATEVER I WASN'T QUOTING THE
STATE.
I'M SAYING WE HAVE -- THE FACTS
ARE RIGHT NOW AS WE HAVE TO
ACCEPT THEM IN THE 2nd DISTRICT.
UNDER THESE FACTS, THE TRIAL
-- 2nd DISTRICT STILL HEARD -- A
FINDING THAT SHE DID NOT HAVE A
DUAL PURPOSE, THAT SHE -- FIRST
OFF.
NOW YOU ARE GETTING INTO THE
MERITS.
FINISH WITH THE -- TREADWAY IS
NOT SUSTAINABLE BECAUSE IN
TREADWAY I GUESS WHAT YOU ARE
SAYING IS THAT IT WAS ACCESSED
AND THE CONTINUATION OF TURNING
OVER DOCUMENTS, ESSENTIALLY THAT
THAT IS THE SAME AS THIS CASE.
THIS CASE IS WHAT THE 4th
DISTRICT IN TREADWAY FOUND THAT
IS A VICTIM OF AN OFFENSE HAS A
DUAL PURPOSE, IN PROVIDING
INFORMATION TO THE POLICE TO
SUBSTANTIATE THEIR CLAIMS AND IN
OUR CASE, THERE ARE OBJECTIVE
PRIVATE INTERESTS FROM THE
15-YEAR-OLD VICTIM TO SHOW THAT
THE -- WE COULD ACCOMPLISH THE
OBJECTIVE IF THE TRIAL COURT
ALLOWED US TO BRINGING THE
VICTIM FORWARD AND ALLOWED HER
TO TESTIFY.
YOU HAVE SAID THAT A COUPLE
OF TIMES, IF THE TRIAL COURT HAD
ALLOWED IT.
WAS THERE AN OBJECTION MADE BY
THE ATTORNEYS TO THE TRIAL
COURT, WHETHER YOU CALL IT A
STIPULATED FACT, THE PROPER
FACTS, WHATEVER IT IS, DID THE
STATE OBJECT TO THAT PROCEDURE.
THE STATE -- IF YOU READ THE
TRANSCRIPT OF THAT HEARING, THE
TRIAL COURT MADE IT PERFECTLY
CLEAR THAT THIS IS A CASE BASED
ON THE FACTS AND HE WAS GOING TO
GO WITH THESE FACTS AND THE
STATE SAID, WELL, I HAVE MY
WITNESSES HERE, CAN WE PUT THEM
ON AND THEY ARE READY TO TESTIFY
AND HE SAID, NO, AND HE SAID CAN
I PROFFER WHAT THEY WOULD HAVE
SAID AND SO, WHAT WE HAVE IS
ONLY A PROFFER.
WE WERE NOT PERMITTED TO BRING
FORWARD TO DEVELOPMENT --
THE PROBLEM I HAVE WITH THE
PROFFER, EVEN, IS THAT ONE OF
THE STATEMENTS I BELIEVE YOU
WERE ABOUT TO MAKE IS THAT THIS
WITNESS WAS SIMILAR, THIS
VICTIM, SIMILAR TO THE TREADWELL
CASE AND SHE WAS THE ONE WHO
BROUGHT THE CASE BEFORE THE
POLICE -- WE DON'T HAVE THAT.
AND THESE PROFFERED OR
STIPULATED FACTS, THERE REALLY
ISN'T ANY INDICATION AS TO WHO
ACTUALLY WAS THE ONE WHO
CONTACTED THE POLICE.
I KNOW IN THE BRIEF, THERE IS
SOME DISCUSSION THAT A FRIEND OF
THE VICTIM, YOU KNOW, WENT TO
THE POLICE, AND THAT IS HOW THE
POLICE GOT INVOLVED.
BUT THE FACTS DON'T SUPPORT
THAT.
WELL, THE FACTS THAT --
HAPPENED AND THE FACTS IN OUR
CASE, DO SHOW THE POLICE WERE
NOTIFIED OF THIS ABUSE AND CAME
TO THE HOME OF THE VICTIM, TO
SPEAK TO HER TO SHE IF SHE'D
VERIFY WHAT HAD BEEN REPORTED TO
THEM BECAUSE THE THIRD-PARTY DID
REPORT THE OFFENSE.
DIS THAT DIFFERENCE FROM
TREADWAY WHERE THE -- IS THAT
DIFFERENT FROM TREADWAY WHERE
THE ACTUAL PERSON WENT TO THE
POLICE?
THAT GUY WENT TO THE POLICE
BECAUSE HE WAS CONCERNED ABOUT
HIS INVESTMENT.
ACTUALLY, IN THE CASE --
TREADWAY, THE THIRD PARTY DID
GO, HE WENT TO AN ATTORNEY AND
THE ATTORNEY THEN WENT TO THE
POLICE, THE VICTIM DID NOT GO TO
THE POLICE.
INITIALLY, WITHIN THROUGH HIS
ATTORNEY, SO, WE HAVE A
15-YEAR-OLD GIRL WHO WENT
THROUGH THE MOTHER OF HER BEST
FRIEND TO GET TO THE POLICE TO
GET TO --
AND THAT IS FACT -- THAT FACT
IS IN THE RECORD.
IT WAS THAT THE POLICE WERE
NOTIFIED.
I GUESS WE ARE DISCUSSING THE
MERITS.
I MEAN, WE CAN READ TREADWAY AND
DECIDE WHETHER THE FACTS ARE
DISTINGUISHABLE OR NOT.
I HAVE A QUESTION ABOUT THIS
EXCEPTION.
THIS WAS A WARRANTLESS SEARCH
INTO YES.
NORMALLY IT IS THE STATE THAT
HAS THE BURDEN OF PROVING THAT
IT WAS STILL LEGITIMATE UNDER
THE 4th AMENDMENT.
AND DO YOU AGREE THAT THE STATE
HAS TO PROVE THAT THERE WAS A
DUAL PURPOSE IN THIS CASE.
NO, YOUR HONOR, THE BURDEN AT
THIS POINT IS ON THE PARTY THAT
BROUGHT THE MOTION TO SUPPRESS.
I DON'T UNDERSTAND THAT.
BECAUSE IN EVERY OTHER CASE WHEN
WHEN WE LOOK AT WARRANTLESS
SEARCHES, THAT THE BURDEN OF
SHOWING THAT IT WAS PROPER NOT
WITHSTANDING THE ABSENCE OF A
WARRANT IS ON THE STATE.
BECAUSE THE BURDEN IN THIS
CASE IS NOT SHOWING THAT THE
STATE COMMITTED A WARRANTLESS
SEARCH, IS WHETHER THE DAUGHTER
WAS A -- AN AGENT OF THE STATE.
DID SHE TRANSFORM FROM A PRIVATE
-- YOU KNOW, PRIVATE SEARCH,
BECAUSE -- PRIVATE SEIZURE,
THERE WAS NO SEARCH AND THE
POLICE ARRIVED AT THE TRAILER OF
THE VICTIM.
WITH -- AND SHE --
THE DEFENDANT DURING THIS
TIME, IS UNDER ARREST, RIGHT?
NO.
THE DEFENDANT ISN'T THERE?
HE IS THERE.
OUTSIDE THE HOME, AND THEY WERE
TALKING TO HIM BUT HE WAS NOT
UNDER ARREST.
AND WE WOULD BE, ALL THAT THE
STATE HAD TO DO WAS ASK THE
DEFENDANT, MAY I SEARCH YOUR
HOME, AND IF HE SAID YES, THAT
WOULD HAVE ENDED THE CASE.
YES.
WELL, --
OR --
THE DAUGHTER.
OR IF HE HAD SAID NO, WE --
THE POLICE ARRIVE AT THE TRAILER
NOT HAVING ANY IDEA THAT THERE
IS EVIDENCE TO SUBSTANTIATE A
SEXUAL BATTERY.
AND WHEN THEY SAID NO, WHAT THEN
--
ONCE THE VICTIM SAYS, I
BELIEVE THERE MAY BE CONDOMS, WE
USED CONDOMS WHEN WE HAVE SEX
AND I BELIEVE THERE MAY BE SOME
IN THE TRAILER AND AT THAT TIME
THEY HAVE PROBABLE CAUSE TO GET
A SEARCH WARRANT, IF THEY HAD TO
AND IF -- WHAT HAPPENS IS AND
EVEN THE TRIAL COURT FOUND, THEY
ENGAGED IN PROPER POLICE
INVESTIGATION AND ASKED THE
VICTIM IS THERE ANYTHING TO
SUBSTANTIATE YOUR CLAIM AND
SHE'S THIS ONE WHO VOLUNTEERS,
YES, AND I BELIEVE THERE MAY BE
SOME INSIDE.
AND SHE THEN GOES IN, YOU KNOW,
TO PACK HER BAGS BECAUSE SHE WAS
TOLD CHILD PROTECTIVE
INVESTIGATOR WILL TAKE HER TO A
SHELTER.
AND WHAT DID THEY HAVE --
GIVE HER A BAG TO GET THE
CONDOMS?
WELL, SHE WAS TOLD THAT IF
SHE WANTED TO, SHE COULD BRING
THOSE OUT.
THE NATURE OF THE ITEM THAT SHE
WAS GOING TO BRING OUT THE
POLICE GAVE HER A BAG TO PUT
THEM IN, YES.
WELL, ACTUALLY, I THINK UNDER
THIS COURT'S CASE LAW, THAT IF
THIS CHILD HAD BEEN ASKED FOR
CONSENT TO SEARCH THAT THE CHILD
COULD HAVE GIVEN THE CONSENT.
AND -- BUT THAT WANT DONE,
CORRECT.
WE DIDN'T ASK FOR CONSENT
BECAUSE WE DID NOT KNOW SHE WAS
GOING TO BRING OUT THE CONDOMS,
WE DIDN'T COMPEL HER, DIDN'T
COERCE HER, THE POLICE ASKED --
SUGGESTED TO HER, IF SHE WANTED
TO SHE COULD BRING THEM OUT --
BUT THE QUESTION IS, THE
STATE DIDN'T BRING THIS AS A
CONSENT CASE.
WE DON'T KNOW WHAT PART -- BASED
ON THIS RECORD, BECAUSE --
WHETHER SHE HAD JOIN CONTROL
OVER THE -- HOW MANY BEDROOMS
AND WE DON'T KNOW AND THAT IS
ANOTHER REASON, BECAUSE THE
RECORD DOESN'T GIVE AN
ALTERNATIVE BASIS TO SHOW THAT
CONSENT WOULD HAVE BEEN
APPROPRIATE.
UNDER THE STIPULATED FACTS
THEY DID CONCEDE SHE HAD JOINT
ACCESS TO THE BEDROOM, THE
BEDROOM.
THERE IS ONE BEDROOM, YOUR
HONOR, THAT SHE HAD JOINT ACCESS
AND NEVER HAD BEEN DENIED
ACCESS.
THAT WAS PART OF THE DEFENDANT'S
STIPULATION, OF THE FACTS THEY
BROUGHT FORWARD.
YOU KNOW, THE OFFICIAL
CONSENT, IN THE SECOND DCA --
WE DIDN'T HAVE TO.
SHE BROUGHT THEM OUT FIRST.
IF SHE HAD NOT BROUGHT THEM OUT,
BEFORE SHE WAS YOU KNOW -- LED
TO THE SHELTER SHE COULD HAVE
GIVEN US -- AT LEAST CONSENT TO
GO IN BUT BROUGHT THEM OUT AND
IT IS A CONUNDRUM AT THIS POINT.
WE HAVE TO SHOW SHE ACTED
WITHOUT A DUAL PURPOSE IN GOING
AND GETTING THOSE.
YOU KNOW, REDUCED EXPECTATION OF
PRIVACY BECAUSE SHE LIVED IN
THAT HOUSE.
SHE HAD FULL ACCESS.
I UNDERSTAND YOUR ARGUMENT.
MY QUESTION IS WHETHER YOU MADE
IT IN THE SECOND DCA.
WE TRIED, YOUR HONOR.
THE PROBLEM I'M HAVING, YOU
ARE TRYING TO PEEL THE ONION AND
YOU NEED TO ADDRESS THIS HEAD ON
AS TO -- DANCING AROUND WITH THE
LAW ENFORCEMENT ENCOURAGED OR
THE DO THIS IS DISINGENUOUS

MONINGER MONINGER.

THEIR CRIMINAL BEHAVIOR AS A
RESPONSE.
IF THERE ARE CRIMINAL CASES
ON DOMESTIC -- I AGREE.
THE JURY SHOULD BE THE ONES TO
LOOK AT THE WITNESS AND DECIDE
WHETHER OR NOT THEY'RE
CREDIBILITY AND AT WHAT LEVEL.
THE PROSECUTOR, THROUGHOUT ALL
OF THIS, IS TRYING TO CHANGE A
BURDEN OF PROOF TO BEYOND A
REASONABLE DOUBT TO WHETHER OR
NOT YOU HAVE A GUT FEELING
WHETHER YOU BELIEVE THE
WITNESSES, WHICH IS NOT THE
BURDEN OF PROOF.
BECAUSE THAT'S THE KIND OF CASE
HE HAS.
I WAS A CREATE -- THIS CASE IS A
WEAK CASE.
IT'S BASED UPON THIS TESTIMONY.

TEST TEST TEST TEST TEST TEST
TEST TEST TEST TEST TEST TEST
TEST.
I WOULD SUBMIT THAT EVERY
PETE OF TESTIMONY, ESPECIALLY --
AND WITH THAT, YOU'VE BOTH
USED YOUR TIME PLUS ADDITIONAL
TIME.
THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE NEXT CASE ON THE CALENDAR IS
THE STATE OF FLORIDA VERSUS
MONINGER.
CHANDRA DASRAT.

GURALNICK LEWD AND LASCIVIOUS DE
NOVO EFFECTUATED EWALD
INEVITABLE DISCOVERY DISKEY
ASHLEY LOOMIS STATE
VERYIACCARINO IACCARINO
THE NEXT CASE ON THE CALENDAR
THIS MORNING IS THE STATE OF
FLORIDA VERSUS MONINGER, IF I'M
PRONOUNCING THAT CORRECTLY.
TEST TEST.
TEST TEST.

MAY IT PLEASE THE COURT, I
REPRESENT THE STATE IN THIS
APPEAL.
THE SECOND DISTRICT COURT IN THE
CASE ERRED IN FINDING THE VICTIM
CAN NEVER HAVE A DUAL --
BEFORE YOU --
WOULD YOU --
[LAUGHTER]
I THINK WE'RE BOTH PROBABLY
GOING IN THE SAME DIRECTION.
THE MORE I LOOK AT THE THIS
CASE, I THINK YOU REALLY NEED TO
GO FORWARD IS THERE REALLY
CONFLICT HERE AND EXPLAIN IN
SOME DETAIL, THE MORE I LOOK AT
IT AND ANALYZE IT, IT SEEMS WE
HAVE SOME DIVERGENT FACTUAL
PREDICATES WE'RE DEALING WITH,
AND DO WE REALLY HAVE
JURISDICTION HERE.
JUSTICE, I THINK IN THIS CASE
THE FACTS ARE MORE SIMILAR THAN
THEY WOULD APPEAR ON IMMEDIATE
GLANCE.
UNDER TREADWAY, WHICH IS WHERE
WE'RE LOOKING FOR CONFLICT, THE
OWNER OF AN INSURANCE AGENCY
SETS UP AN ANNUITY PROGRAM.
ONE OF HIS AGENTS INVESTS HIS
OWN MONEY IN IT, BUT ALSO MONEY
FROM SOME OF HIS CLIENTS.
HE GOES INTO FILES HE DID NOT
HAVE THE AUTHORITY TO LOOK AT TO
CHECK ON THROUGH HIS CLIENT'S
FILES AND --
BEFORE YOU GO FURTHER, DID
ANY STATE AGENT ASK THAT PERSON
TO GO INTO THE FILES?
NO, NOT AT THAT APPOINTMENT,
YOUR HONOR.
BUT WHAT HAPPENS IS HE DOES GO
INTO THOSE FILE, HE THEN COPIES
FILES, GOES TO AN ATTORNEY, AND
HIS ATTORNEY GOES TO THE STATE
AND OFFERS THIS EVIDENCE.
ISN'T THAT SIGNIFICANTLY --
SIGNIFICANTLY DIFFERENT WHEN
SOMEONE'S ACTING FROM
ENCOURAGEMENT FROM THE STATE?
IF IT HAD HAPPENED RIGHT
THERE, I BELIEVE YOU'RE RIGHT,
BUT IT DIDN'T.
THIS PERSON ENGAGED IN A MONTH
LONG INVESTIGATION CONTINUING TO
PROVIDE EVIDENCE TO THE STATE
AGAINST HIS EMPLOYER.
WHO INITIATED THE CONTACT?
WAS IT THE AGENT INITIATING
CONTACT WITH THE STATE?
EXACTLY AS IN MONINGER.
WE HAVE A VICTIM INITIATING
CONTACT WITH THE STATE.
DID THE VICTIM SAY I'VE GOT
THESE DOCUMENTS?
YES.
AND WHETHER THIS CASE IS
RIGHT OR WRONG, DOESN'T THAT
MAKE THAT A DIFFERENT FACTUAL
CASE THAN THIS ONE?

NO BECAUSE IN THIS CASE IT
DIDN'T STOP THERE.
HE CONTINUED TO PROVIDE MORE
EVIDENCE, HE CONTINUED.
THIS WAS AN ONGOING EXCHANGE
OVER A SERIES WHERE THE AGENT
ACTUALLY PROVIDED MORE EVIDENCE.
THEN I GUESS, AND WE'RE
TALKING ABOUT THE FOURTH
AMENDMENT.
IF, IN THIS CASE, IN MONINGER,
IF THE YOUNG GIRL VICTIM HAD
HERSELF GONE AND WITHOUT
DISCUSSION OR URGING OR
ACTUAL -- OF THE POLICE AND
SEARCHED THE HOUSE AND BROUGHT
THIS TO THE POLICE, WE WOULDN'T
BE HERE BECAUSE SHE'S NOT A
STATE ACTOR.
WE'RE REALLY TALKING ABOUT AN
APPLICATION FOR PRINCIPLE OF LAW
WHICH IS -- [INAUDIBLE] THE
COUNTRY WHICH IS THAT IF A
PARTICULAR PRIVATE INDIVIDUAL
BECOMES, IN ESSENCE, AN AGENT,
THEN THE FOURTH AMENDMENT
APPLIES.
THAT'S THE PRINCIPLE.
NOW, I THINK WE'RE TALKING,
THEN, ABOUT AN APPLICATION OF
PRINCIPLES TO A VERY DISCREET
SET OF FACTS, AND THAT'S WHY I'M
STILL STRUGGLING TO SEE WHY YOU
FIND CONFLICT BETWEEN THE SECOND
AND THE --
FOURTH.
FOURTH DISTRICT.
THAT'S RIGHT.
BECAUSE THE PRINCIPLE IS WHAT
THEY'RE BOTH APPLYING.
NOW, THEY -- AND THE FACTS TO
ME, ALTHOUGH YOU SAY, WELL, IT'S
THE SAME BECAUSE WHAT I THOUGHT
YOU WERE SAYING WAS BECAUSE THE
AGENT KEPT ON TURNING OVER
INFORMATION.
IT'S NOT THE TURNING OVER OF
INFORMATION THAT IS THE FOURTH
AMENDMENT VIOLATION, IT'S THE
INSTIGATION AND ENCOURAGEMENT OF
THE POLICE EXPRESSLY IN THIS
CASE THAT MADE THE SECOND
DISTRICT SAY THIS, APPLYING
TREADWAY AND IN OUR VIEW BASED
ON THE STIPULATED FACTS, AND
THAT, OF COURSE -- YOU'RE
SMILING BECAUSE THAT REALLY GETS
THE STATE, YOU KNOW, HERE, THE
STIPULATED FACTS, THESE FACTS DO
NOT SHOW THAT THEY WERE, THAT
SHE WAS ACTING SOLELY OR
PRIMARILY FOR A PRIVATE PURPOSE.
AND THEY MAKE THAT CONCLUSION.
SO I DON'T SEE WHERE THE
CONFLICT IS.
MAY I START OFF, YOUR HONOR,
QUITE CANDIDLY, THE STATE DIDN'T
STIPULATE TO -- THIS IS NOT A
WRITTEN STIPULATION.
THIS WAS -- THE STATE WANTED TO
PRODUCE THE VICTIM AND ALL THE
WITNESSES, BUT THE TRIAL COURT
DECIDED, WANTED TO APPLY C4
PROCEDURE TO MOTION --
AND I WASN'T FAULTING THE
STATE.
WHAT I'M SAYING, THOUGH, IS THE
FACTS ARE RIGHT NOW AS WE HAVE
TO ACCEPT THEM IN THE SECOND
DISTRICT OPINION.
UNDER THESE FACTS THE TRIAL,
THE SECOND DISTRICT STILL ERRED
IN FINDING THAT SHE DID NOT HAVE
A DUAL PURPOSE, THAT SHE --
FIRST OF ALL --
NOW YOU'RE GETTING INTO THE
MERITS, AND I GUESS FINISH WITH
SAYING THAT TREADWAY ISN'T
ADMISSIBLE BECAUSE IN TREADWA