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Crosley A. Green v. State of Florida
SC05-2265 | SC06-1533
FINAL
CASE ON THE CALENDAR THIS
GROWN GREEN VERSUS $$!!!!.
>> GOOD MORNING MY MARK --
NAME MARC GROUPER WITH CCRR,
WITH ME IS DAPHNE, WE
REPRESENT -- CROSLEY GREEN
PALE OF CAPITAL POSTCONVICTION
PROCEEDING THE LOWER COURT
GRANT!!$$!!!!!!!!
GRANTED A NEW PENALTY PHASE
WITH JURY.
>> ON THE CROSS APPEAL ARE YOU
GOING TO LOOKS LIKE THIS ARE
YOU GOING TO -- ADDRESS THE
CROSS APPEAL IN YOUR FIRST
PART OF THE ARGUMENT?
>> I THOUGHT I WOULD -- YES, I
THOUGHT I WOULD ADDRESS -- ALL
THE ISSUES THAT WE PRESENTED.
AS BEST I CAN.
ANYWAY, THE COURT DENIED ALSO
OUR GUILTY PHASE ISSUES AND
I'M HOPING TO GET SO SOME OF
THOSE IN THE COURSE OF
REACHING THEDITION -- DECISION
TO GRANT NEW PENALTY PHASE THE
COURT ALSO MADE SOME FINDINGS,
IN PARTICULAR, THAT THE NEW
YORK -- SHOULD BE TREATED AS A
CRIME WHICH WE DISAGREE WITH
WE BELIEVE UNDER THE STATUTORY
SKEEMZ UNDER AMERICA THAT THE
NEW YORK -- SHOULD NOT BE
REGARDED AS A CRIMINAL --
>> THAT IS PRETTY IMPORTANT
ISSUE, SO, MAYBE YOU CAN
ADDRESS THAT FIRST, WHICH IS
THAT THE IN NEW YORK, IT IS
THIS IT IS YOU THE CONVICTION
SET ASIDE, IS THAT WHY YOU SAY
THERE CAN'T BE A PRIOR FELONY
BECAUSE THE CONVICTION IS
ACTUALLY SET ASIDE?
>> I'M 9211415B IS THE DEATH
PENALTY STATUTE IT REQUIRES
THAT THERE BE A PREVIOUS
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, OF A VIOLENT
FELONY!!$$!!!!!!!!!!
FELONY.
>> HOW IS CONVICTION DEFINED?
IN STATUTE OR CASE LAW.
>> ACTUALLY IN THE DEATH
PENALTY STATUTE IT IS NOT.
THERE IS A DEFINITION IN
CONNECTION WITH SENTENCING
GLOOIN STATUE THE COURT FAIRLY
RECENT CASE DID CITE THAT
STATUTE BUT THE DEFINITIONS IN
TERMS WITH REGARD TO
SENTENCING GUIDELINES LIKE THE
ENTIRE GUIDELINE SKEEMZ
SPECIFICALLY EXCLUDES CAPITAL
CASE SENTENCING THAT IS NOT
HELPFUL!!$$!!!!!!!!!!!!
HELPFUL, SO, OUR VIEW IS THAT
THE STATUTE DOES REQUIRE
STRICT CONSTRUCTION IN FAVOR
OF THE DEFENDANT, AND THAT I
BELIEVE WAS THE BASIS FOR THE
COURT'S DECISION IN MERCK,
WHICH FOUND THAT JUVENILE
DELINQUENCIES IN THAT CASE
DELINQUENCY I KNOWS FROM
ANOTHER STATE, COULD NOT BE
USED IN SUPPORT OF THE VIOLENT
FELONY ACT --
>> HAVE YOU ACTUALLY LOOKED AT
THE NEW YORK STATUTE -- NEW
YORK STATUTE, AND DETERMINED
IN NEW YORK LAW, TO DETERMINE
WHAT IS THE EFFECT OF THE TERM
THAT THE TRIAL JUDGE USES AS I
RECALL, WITH SOMETHING ABOUT
VACATING THE CONVICTION.
YET HE THEN TAKES THE NEXT
STEP, AND SENDS THE PERSON TO
SOME KIND OF DETENTION
FACILITY IF YOU ARE VACATING I
HAVE TROUBLE UNDERSTANDING HOW
YOU VACATE THE SENTENCE, YET
STILL IN ESSENCE INCARCERATE
THE PERSON.
>> UM-HMM.
>> VACATE THE CONVICTION.
.
>> OKAY, WELL I CAN TALK ABOUT
WHAT THE NEW YORK COURTS DO,
AND WHAT THEY DID IF THIS
CASE, WE HAVE WELL CITED IN
THE BRIEFINGING ARE AND IN THE
RECORD OF COURSE, THE
TRANSCRIPT OF THE NEW YORK
PROCEEDINGS.
OKAY.
.
>> AND -- CROSLEY GREEN WAS
ORIGINALLY CHARNLDZ WITH ARMED
ROBBERY A FIREARM WENT BEFORE
THE COURT THAT THE TIME, HE
ENTERED A PLEA, TO WHAT NEW
YORK CALLS THIRD DEGREE
ROBBERY APPEARS TO BE PARALLEL
STATUTE TO $$FLORIDA'S
STRONG-ARM ROBBERY, AND THEN A
WEEK LATER HE CAME BACK INTO
COURT, AND THE JUDGE MANY IN
ACCORDANCE WITH THE NEW YORK
SCHEME VACATED THE PRIOR
SENTENCE, AND SUBSTITUTED FOR
IT YOUTHFUL OFFENDER ACTUALLY
I DON'T RECALL WHETHER A
SENTENCE OR NOT I THINK JUST
VACATED THE CONVICTION, AND
SUBSTITUTED FOR THAT YOUTH
FULL OFFENDER FINDING, AND --
SENTENCE -- I THINK THIS
IMPORTANT HE TOLD HIM, RIGHT
ON THE SPOT, THAT THE
SIGNIFICANCE OF WHAT HE HAD
DONE WAS THAT HE DOES NOT HAVE
A CRIMINAL CONVICTION.
BUT THE NEW YORK STATUTE,
STATUTES!!$$!!!!!!!!!!!!!!
STATUTES, THE SCHEME ITSELF,
IS VERY EXPLICIT, AND THERE IS
LOTS OF COMMENTARY THAT I HAVE
CITED THAT SAYS SOMEONE WHO IN
NEW YORK GOES THROUGH -- IS
SUBJECT TO YOUTH FULL OFFENDER
FINDING, AS A GROOULTH OFFEND!!$$!!!!!!!!!!
OFFENDER FINDING, DOES NOT
HAVE A CRIMINAL CONVICTION AT
ALL.
>> SO IN OTHER WORDS, WHAT IN
NEW YORK, INSTEAD OF YOU HAVE
GOT A JUVENILE ADJUDICATIONS
YOU HAVE FELONY CONVICTIONS
YOUTH FULL OFFENDER FINDINGS?
IS THAT THE THREE CATEGORIES.
>> THREE -- I PRESUME THERE IS
SOME SORT OF DELINQUENCY FOR
THE VERY YOUNG CHILDREN.
>> BUT --
>> I I KNOW FEDERAL LAW COUNTS
IT AS ADULT CONVICTION BECAUSE
THEY ARE SAYING -- BUT, WHAT
DO WE LOOK TO, UNDER NEW YORK,
CASES, THAT YOU HAVE CITED,
DO THEY CONSIDER THIS FOR ANY
PURPOSES IN NEW YORK?
AS A PRIOR CONVICTION?
>> IF IN OTHER WORDS, DO WE
LOOK TO HOW NEW YORK TREATS IT
OR WOULD WE LOOK TO IF IT WERE
WERE IN FLORIDA HOW WOULD
FLORIDA TREAT IT?
.
>> I DON'T BELIEVE IT IS EVER
TREATMENTED AS AN ADULT
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, IN NEW YORK, EVER.
BUT IT MAY WELL BE FACTORED
INTO JUST AS FLORIDA DOES
UNDER SENTENCESING GUIDELINES
AND ON CAPITAL SENTENCING MAY
BE FACTORED INTO A SENTENCE
LATER ON.
>> IN MERCK WE DEALT WITH IT
ON BASIS HOW NORTH CAROLINA --
CORRECT?
>> YES.
>> WOULDN'T THAT BE THE
PRECEDENT FOR HOW WE WOULD
DEAL WITH IT?
WE WOULD DEAL WITH IT ON THE
BASIS OF HOW THE FORUM STATE
DEALT WITH IT, IN TRYING TO
THEN BRING IT WITHIN THE
CONFINES OF WHAT OUR STATUTE
SAYS, IS AN AGGREGATOR BY
REASON OF THEIR BEING A
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION?
ISN'T THAT THAT HE WAY WE DID
IT IN MERCK.
>> I'M RELYING ON HE MERCK,
YES, THE COURT.
>> SO THEN IT IS REALLY
IMPORTANT, TO KNOW THAT EVEN
IF NEW YORK IF IT IS A
FINDING, WHETHER THEY USE IT
TO FOR THE SAME TYPES OF
PURPOSES, AS A CONVICTION
WOULD BE USED?
>> WELL, I --
>> I MEAN THAT SEEMS TO BE I
MEAN THIS A CRITICAL QUESTION
BECAUSE I THINK THAT IF THIS
CONVICTION ISN'T CONSIDERED,
YOU KNOW, THERE IS DEFINITELY
HAS TO BE MY VIEWPOINT, I
AGREE WITH THE JUNG IT WOULD
HAVE TO BE A NEW PENALTY FACE
NOW HE DOES IT BASED ON JUST
THAT IT SHOULD HAVE BEEN
CHALLENGED, BUT, I THINK
OBVIOUSLY STRONGER IF IT CAN'T
BE CONSIDERED AT ALL -- AND SO
I WOULD THINK THIS IS SORT OF
THE CRITICAL QUESTION FOR YOU.
>> ACTUALLY IT IS EVEN MORE
CRITICAL THAN THAT, I WOULD
LIKE TO GET INTO THE SECOND
ARGUMENT HABEAS PETITION MY
VIEW IS THAT THE NEW YORK
OFFENSE WAS NOT A CONVICTION
AT ALL IT IS IN THIS
PARTICULAR CASE, THE ONLY
BASIS FOR THE VIOLENT FELONY
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, SO IF THE COURT
WOULD --
>> WHAT WE HAVE TO LOOK AT IF
WE HAD THIS INFORMATION BACK
THEN, WOULD WE HAVE TREAT IT
AS A PRIOR VIOLENT FELONY
CONVICTION CORRECT.
>> RIGHT.
>> THAT IS WHY I'M ASKING, IN
TERMS OF THE JUSTICE QUINN
SAID HE WAS STILL INCARCERATED!!$$!!!!!!!!!!!!!!!!!!!!!!
INCARCERATED, HE WAS
INCARCERATED UNDER WHAT YOU
SAY IS A YOUTH FULL OFFENDER
FINDING, WHAT DO THE CASES
THAT HAVE INTERPRETED THAT FOR
NEW YORK, YOU SAY THEY DO
TREAT IT FOR EXTENSION
GUIDELINES AS CONVICTION?
>> I'M NOT COMPLETELY CERTAIN
OF THAT I HAVE TO SAY BUT I
KNOW WHAT CASES SAY
SPECIFICALLY THE ONES THAT I
FEEL THAT THEY DO, BECAUSE --
>> I I MEAN IN ALL DO YOU
REPUBLICAN -- DO YOU RESPECT I
KNOW YOU WORKED VERY HARD IN
THIS CASE BUT FEELINGS ABOUT
WHAT THE LAW IS, DOESN'T SEEM
TO ME, IT SOUNDS LIKE YOU ARE
SAID TO STEPPING THIS ISSUE --
SIDESTEPPING THIS ISSUE I
GUESS WE CAN GO BACK AND
REREED THESE CAUSE TO --
CASES, TO SEE -- IF THERE IS
NOT A CLEAR HOLDING ONE WAY OR
ANOTHER, THEN TELL ME, YOU
DON'T THINK THERE IS A CLEAR
HOLDING ONE WAY OR ANOTHER?
HOW THEY HE TREAT IT FOR
SENTENCING PURPOSES, FOR
SUBSEQUENT CRIMES?
>> THE IMPORTANT THING, THE
IMPORTANT THING, IS THAT ONCE
A YOUTH FULL OFFENDER ALWAYS A
YOUTH FULL OFFENDER SUBSEQUENT
MISCONDUCT DOES NOT CONVERT, A
GROOULTH OFFENDER FINDING INTO
A FELONY AT ANY TIME.
SO IT IS -- SIMILAR TO THE
DELINQUENCY!!$$!!!!!!!!!!!!!!!!!!!!
DELINQUENCY, SITUATION, WHERE
SUBSEQUENT MISCONDUCT BY THE
DEFENDANT, WHETHER IT BE
COMMISSION OF A NEW CRIME, OR
WHETHER IT BE VIOLATION OF
SOME OF THE TERM OF -- TERMS
OF HIS DISPOSITION OR WHATEVER
IT MAY BE DOES NOT MAKE THAT
DELINQUENCY INTO AN ADULT
CRIMINAL OFFENSE.
>> YOUR ARGUING TRIAL COUNCILS
SHOULD HAVE ARGUED THIS AT
TRIAL; CORRECT?
THAT HE SHOULD HAVE ARGUED
THIS CONVICTION WAS NOT A
CONVICTION FOR PURPOSES OF THE
PRIOR VIOLENT FELONY AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR?
>> ACTUALLY NO.
THAT IS FINDING THAT THE COURT
MADE ON THE WAY TO THE FINDING
OF MATERIALITY AND PREJUDICE,
BECAUSE OF $$COUNSEL'S FAILURE
TO OBTAIN THE NEW YORK FIEFL
LAW -- SO THE --
>> THE ULTIMATE RESOLUTION OF
THIS CLAIM THE UMENT CLAIM
ITSELF IS IN IS INEFFECTIVE
ASSISTANCE OF COUNSEL IN
PENALTY PHASE DO YOU TO FLUR
TO OBTAIN THAT FILE THAT IS
WHERE COURT DID GRANT RELIEF
BUT REACHING THAT ISSUE THE
COURT CONSIDERED TERMINATE,
AND OF COURSE WE WOULD SAY OR
PREJUDICE!!$$!!!!!!!!!!!!!!!!
PREJUDICE, AND WE WOULD ARGUE
THAT THERE IS GREAT DEAL OF
PREJUDICE, BECAUSE THE CRIME
SCHNT FOUR BEEN CONSIDERED AT
ALL.
>> LET ME ASK YOU ABOUT THE
PREJUDICE, THERE WERE FOURING
A THE VAITORS FOUND, THE PRIOR
VIOLENT FELONY ONE OF THE FOUR
AGGRAVATORS!!$$!!!!!!!!!!!!!!!!!!!!
AGGRAVATORS, THE TRIAL COURT
FOUND NO STATUTORY NO
NONSTATUTORY MITT GATORS;
CORRECT?
>> YES.
>> AND ONE OF THE AGGRAVATORS
WAS THAT THE MURDER WAS
ESPECIALLY HEINOUS, CRUEL HAC,
WHICH WE HAVE SAID IS ONE OF
THE MOST EGREGIOUS --
>> THAT WAS STRUCK ON --
>> WAS THAT STRUCK.
>> YES.
>> THAT WOULD BE -- LEAVE US
US WITH TWO IF WE AGREED WITH
YOU -- AS FAR AS PREJUDICE WE
WOULD HAVE TWO AGGRAVATORS,
AND NO STATUTORY OR
NONSTATUTORY MITT GATOR?
>> YES, THERE WAS AN ISSUE
RAISED UNDER CONTAMINANT BELL!!$$!!!!!!
BELLDITION ABOUT THE COURTS --
CAMPBELL DECISION ABOUT THE
COURT FINDING OF LITIGATION,
AND ON DIRECT APPEAL WHAT THE
COURT SAID WAS THAT ON REVIEW
IT APPEARS THE COURT DID
CONSIDER NONSTATUTORY
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION, AND WE ALSO, HAVE
A CLAIM HERE OF COURSE BASED
ON VERY EXTENSIVE BACKGROUND
MITIGATION THAT WAS NOT ZROOD
AT THE TIME OF THE TRIAL BUT
TO GET TO YOUR QUESTION, IN
REVIEWABLE -- REVIEWING THE
DIRECT APPEAL, SITUATION, YES,
THE COURT THE COURT EXPRESSLY
AFFIRMED THE DEATH PENALTY
AFTER STRIKING THE HACK
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, AND EXPRESSLY SAID
IN VIEW OF THE THREE REMAINING
AGGRAVATORS!!$$!!!!!!!!!!!!!!!!!!!!
AGGRAVATORS -- I'M ARGUING
ONE --
>> IN DETERMINING PREJUDICE IF
IS IN CASE, ASSUMING YOU PROVE
DEFICIENT PERFORMANCE, WE HAVE
TO SEE WHETHER IF NOW WE
STRIKE ANOTHER AGGRAVATE$$!!!!OR THE
PRIOR VIOLENT FELONY, WHETHER
WE ARE STILL CONFIDENT DID --
CONFIDENT IN THE OUTCOME WITH
TWO AGGRAVATORS, AND NO
STATUTORY MITIGATION WOULDN'T
WE HAVE TO LOOK SEE IF THAT IS
STILL IN THE OUTCOME.
>> IF I UNDERSTAND THE
QUESTION I DON'T THINK YOU
NEED TO GO ANYWHERE NEAR THAT
FAR CERTAINLY THE JUDGE DID
NOT BECAUSE HE DID NOT AGREE
THAT THAT THE NEW YORK OFFENSE
WAS NOT A CRIME AT ALL.
HE FOUND THAT IT WAS.
BUT HE STILL FOUND PREJUDICE,
BECAUSE WHAT THE NEW YORK
TRIAL REVEALED WAS THAT
ALTHOUGH THE JURY IN THIS
CASE, WAS TOLD IN NO UNCERTAIN
TERMS, BY PAROLE FLORIDA
PAROLE OFFICER RUBIN RIGHT AT
THE BEGINNING OF THE PENALTY
PHASE THAT THE OFFENSE FOR
WHICH CROSLEY GREEN WAS ON
PAROLE WAS QUOTE ROBBERY DASH
ARMED ROBBERY THERE WAS NO
QUESTION --
>> CROSS-PURPOSES, I'M
ASSUMING THAT YOU ARE CORRECT
THAT THAT PRIOR VIOLENT FELONY
SHOULD BE STRICKEN, THE
QUESTION IS WHAT IS THE
PREJUDICE WHETHER WE ARE STILL
CONFIDENT IN THE OUTCOME
BECAUSE HAVING STRICKEN THAT
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, WE ARE STILL LEFT
WITH TWO AGGRAVATORS AND NO
STATUTORY MITIGATION, AND,
THRIVE, HAVE YOU BEEN ABLE TO
SHOW PREJUDICE, ENOUGH THAT
OUR CONFIDENCE IN THE OUTCOME
OF THE TRIAL AND THE DEATH
PENALTY PROCESSING WAS UNDER
-- PROCEEDING WAS UNDERMINED?
>> UM -- HMMM.
I'M TALKING ABOUT TWO
DIFFERENT THINGS AS FAR AS
SHOWING PREJUDICE, BECAUSE OF
THE DISH SENSEY IN PERFORMANCE
OF COUNSEL DURING THE PENALTY
FACE -- PHASE I GUGS WHAT I'M
CONCERNED ABOUT IS THAT I
WOULD HAVE TO GO THAT STAR TO
DEMONSTRATE PREJUDICE WHEREAS
I THINK THERE IS CLEARLY
PREJUDICE.
>> WHY DO YOU HAVE -- THE
COURT IS NOW FACED WITH A
PROPORTIONALITY ARGUMENT,
BECAUSE ONE OF THE AGGRAVATORS
IS STRUCK, SO --
>> LET ME SO A IF I CAN IF IT
STRUCK COMPLETELY, THE JURY
WOULDN'T HAVE HEARD ABOUT A
PRIOR ROBBERY.
>> YES.
>> AND YOU KNOW, WE ALL HAVE
TO DECIDE HOW SIGNIFICANT THAT
IS IT SEEMS TO BE WE ARE
OTHERWISE THE TWO AGGRAVATORS
HAVE TO ARRIVE OUT OF THIS
CRIME -- BUT, ON THE SO IF WE
I THINK YOU HAVE ONE SCENARIO
IF THE -- SHOULDN'T HAVE HEARD
IT AT ALL; RIGHT?
BUT IF WE AGREE WITH JUDGE
JACOBIS, THAT THE IS A CRIME,
AS A CRIME, BUT THAT THE JURY
WOULD HAVE RECEIVED THIS
ADDITIONAL INFORMATION, MY
CONCERN IS THAT THERE IS A
MENTION OF ARMED ROBBERY BUT
THEN IT IS THEY ACTUALLY SAY
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, AND IT WAS ROBBERY.
AND I'M NOT SURE THERE IS ALL
THAT MUCH MITIGATION IN THE
FILE UNLIKE THE YOU KNOW THE
CASE THAT HE RELIES ON, TO
HELP YOU OUT ON THAT AS FAR AS
THE EFFECT ON THE JURY SO
MAYBE IF YOU COULD CONCENTRATE
ON JUST JUDGE JACOBIS' FINDING
OF PREJUDICE AS TO WHAT WOULD
THE JURY NOW IF WE WERE TO
HAVE A NEW PENALTY PHASE WHAT
WOULD THEY HEAR ABOUT THIS
PARTICULAR ACT?
THEY HEAR A ROBBERY HE WAS
CHARGED WITH ARMED ROBBERY
THEY WOULD HEAR THERE WAS A
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY.
AND THAT IT WAS WITH A FIREARM!!$$!!!!!!!!!!!!
FIREARM.
RIGHT.
THEY COULD HEAR THE
CIRCUMSTANCES OF THAT.
>> YES.
>> ALL RIGHT.
SO TWHAEN WOULD BE THE
DIFFERENCE OF WHAT WOULD THEY
HEAR THEY WOULD HEAR THAT
INSTEAD OF A CONVICTION, HE
GOT A YOUTH FULL OFFENDER
FINDING, WHICH IN NEW YORK IS
-- YOU KNOW, STILL HE STILL
GETS INCARCERATED.
>> UM-HMM FIRST OF ALL, THERE
IS SOMETHING I -- I HOPE IS
CRIST CAL CLEAR --
CRYSTAL-CLEAR THIS ARGUMENT
WAS RAISED IN $$STATE'S BRIEF
THERE WAS AN ARGUMENT
REGARDING!!$$!!!!!!!!!!!!!!!!
REGARDING, OFFICER $$COPPER'S
TESTIMONY OFFICER CAME FROM
NEW YORK AND ALSO REFERENCES
TO SOME REFERENCES TO THE FACT
THAT THERE ARE REFERENCES TO
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, WITHOUT A PEND --
APPENDING THE WORD ARM TO IT
AS I SAID THE JURY WAS TOLD
UNQUESTIONABLY ARMED ROBBERY
THE TRIAL JUDGE FOUND THOSE!!$$!!!!ERE
WAS ARMED ROBBERY PRESENTENCE
INVESTIGATION UNDER PRIOR
HISTORY ARMED ROBBERY FIRST
PUNISHABLE BY LIFE, ZERO
UNDER, THE JUVENILE SECTION OF
PRIOR HISTORY, AND JUDGE
JACOBIS MADE THAT SAME FINDING
JUDGE JACOBIS ALSO TOOK UP
ISSUE OF MATERIALITY, EVEN
ACKNOWLEDGING THAT NEW YORK
OFFENSE WAS A VIOLENT FELONY
UNDER FLORIDA LAW.
THE JUDGE STILL FOUND THAT
THERE WAS A -- A SIGNIFICANT
DIFFERENCE A SUBSTANTIAL
DIFFERENCE BETWEEN ARMED
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, AND A SIMPLE ROBBERY
AND THE DIFFERENCE I GUESS IN
LAY TERMS WOULD BE, DO YOU
HAVE A CRIME OF THE SORT THAT
HAPPENED HERE, OR DO YOU HAVE
A JUVENILE PURSE SNATCH.
>> IN THIS CASE BELOW, WHAT
FACTS OF THE UNDERLYING CRIME
WERE PRESENTED TO THE JURY OR
THE JUDGE?
P.
>> WITH REGARD TO THE --
>> THE NEW YORK OFFENSE, WHOA
FACTS AS SPECIFICALLY WHAT
HAPPENED AS SOPPED -- AS
OPPOSED TO SIMPLY BEING PRIOR
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION DID THEY GO INTO
THE DETAILS OF THE FACTS?
OKAY.
NOT IN GREAT DEAL, AND I'M
TRYING TO -- I THINK THERE IS
A BIT OF A DISTINCTION BETWEEN
WHAT WAS PRESENTED TO THE
JURY, AND WHAT MAY HAVE BEEN
PRESENTED LATER BUT, IT WAS A
GAS STATION, ROBBERY THAT
OFFICER COPPER WAS CALLED TO,
I BELIEVE THAT THERE WERE TWO
INDIVIDUALS, AND THE CROSLEY
GREEN WAS ARRESTED BASED ON
WHAT THE OFFICER HAD HEARD
LATER ON THAT EVENING.
AND THEN HE HEARD THAT.
>> WAS THERE ANY TESTIMONY
THAT THE DEFENDANT -- TO THE
GAS STATION I MEAN THE
SUBSTANCE OF YIPD -- UNDER!!$$!!!!!!!!
UNDERLYING GROOIM CRIME AS
OPPOSED TO THE NATURE OF THE
CRIME THE SUBSTANCE OF THE
CRIME ITSELF HOW IT WAS
COMMITTED THAT WASN'T PRESENT!!$$!!!!!!!!!!!!
PRESENTED TO THE JURY WAS IT.
>> NO.
NO.
THERE WEREN'T ANY WINS HAD
PERSONAL KNOWLEDGE THE OM ONE
HAD THE ONLY ONE THEY CALLED
IS OFFICER COPPER.
>> QUESTIONING YOU HAVE ALMOST
EXHAUSTED EVEN YOUR REBUTTAL
TIME I DON'T KNOW HOW YOU WANT
TO USE YOUR TIME BUT --
>> O BEING.
>> WANTED TO REMIND YOU OF
THAT.
>> THANK YOU.
-- WELL, ANYWAY, I WANTED TO
SAY THERE IS A PARALLEL SCHEME
WITH THE NEW YORK OFFENSE AND
JUVENILE DELINQUENCY STATUTES
IN FLORIDA, AND I THINK I WILL
GO ON AND TALK ABOUT SOMETHING
ELSE, UNLESS THERE ARE
ADDITIONAL QUESTIONS, WITH
REGARD TO THE GUILT FAZE
ISSUES!!$$!!!!!!!!!!
ISSUES, THERE IS A -- PHASE
ISSUES AN ISSUE OF RECANTING
WITNESSESES AWAY RAISED THEISH
OF THREE X5 CARDS INDICATE
POLICE HALLECK COULD NOT MAKE
A POSITIVE IDENTIFICATION OF
ANYONE, AND WE HAVE ALSO,
THERE WERE SOME -- SUMMARILY
DENIED INCLUDING CROSS RACE
IDENTIFICATION ISSUE BELIEVE
THE COURT ERRED AND ALSO WITH
REGARD TO -- A CONDUCT ISSUE
WITH THAT I WILL RESWHAEFSH
TIME I HAVE.
RESERVE WHAT TIME I HAVE.
.
>> MISS DAVIS.
>> MAY IT PLEASE THE COURT MY
NAME BARBARA DAVIS I REPRESENT
THE STATE OF FLORIDA, FIRST OF
ALL, ON THE ISSUE ONE, AND THE
CROSS APPEAL, AT THE TIME OF
THIS CONVICTION WAS WHICH WAS
IN 1990 CAMPBELL WAS THE LAW.
THIS COURT ISSUED ITS DECISION
DIRECT APPEAL IN 1994, MERCK
WAS DECIDED IN 1959.
UNDER CAMPBELL, WHICH DEFENSE
COUNSEL CITED, A JUVENILE
CONVICTION WAS AD MISS INL AS
A PRIOR VIOLENT FELONY, UNDER
MERCK, WHICH CAME OUT AFTER
THIS CASE, THE JUVENILE
ADJUDICATION WAS NOT A PRIOR
VIOLENT FELONY BUT A JUVENILE
CONVICTION WAS, CROSLEY GREEN
WAS CONVICTED AT THE AGE OF
18,99TO IN AN ADULT COURT TO AN
ADULT SANCTION HE CAME TO
FLORIDA --
>> -- ON THAT.
>> AS AN ADULT.
>> HE -- MAKE SURE, HE WAS AT
THE TIME OF THE TRIAL, IT WAS
BELIEVED THAT HE HAD A
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, OF ROBBERY.
>> YES.
>> DO YOU AGREE, THAT HE
ACTUALLY THAT THE CONVICTION
OF ROBBERY WAS VACATED AND THE
SIGNING OF YOUTH -- FINDING OF
YOUTH FULL OFFENDER WAS MADE?
>> THIS IS SOMETHING THAT IS
INDIGENOUS TO NEW YORK.
>> I UNDERSTAND THAT ALL I'M
ASKING IF YOU AGREE THAT THE
THAT THAT FACT WHICH IS NOW IN
THE RECORD WAS NOT IN THE
RECORD AT THE TIME FOR EITHER
THE TRIAL COURT OR FOR THIS
COURT?
>> NO.
BECAUSE THEY REPEATEDLY SAID
CROSLEY GREEN WAS TREATED AS A
YOUTH FULL OFFENDER, THE ONLY
THING THAT COUNSEL DIDN'T
ARGUE WAS THAT UNDER NEW YORK
LAW, IT IS DEEMED VACATED
WHICH DOESN'T MEAN VACATED
UNDER THE FLORIDA SENSE, IN
FLORIDA, NEW YORK USES THE
SAME THING WE DO FOR YOUTH
FULL OFFENDER CONVICTED IN
ADULT COURT, AND THEN THE
SENTENCE, IF HE QUALIFIES
ASSIST A YOUTH FULL OFFENDER
IS A YOUTHFUL O FENDER
SENTENCE.
>> YOUTHFUL OFFENDER SCHEME IN
FLORIDA AND YOUTHFUL O FENDER
SCHEME IN NEW YORK ARE TOTALLY
DIFFERENT ARE THEY NOT.
>> IN THE ONLY DIFFERENCE IN
NEW YORK IS THEY SAY WE ARE
GOING TO VACATE IT FOR
PURPOSES OF CEILING THAT
RECORD, HOWEVER IF YOU LOOK AT
THE --
>> YOU SAY THE ONLY
DIFFERENCE, THAT IS A -- A
HUGE DIFFERENCE, IS IT NOT?
I WOULD APPRECIATE IT IF YOU
WOULD TAKE OUR ANALYSIS IN
MERCK, AS JUSTICE TWILS HAS
POINTED OUT JUSTICE WELLS
POINTED OUT IN NESHG WE LOOK
TO NORTH CAROLINA LAW, HERE WE
HAVE AN EXPRESS -- FINDING, IN
ADDITION TO STATUTORY SCHEME
IN THE CASE LAW FROM NEW YORK,
THAT SAYS, THERE IS NO
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION.
SO INITIALLY AT LEAST IT LOOKS
TO ME THAT IF WE APPLY MERCK
THAT IS THE QUESTION I'M GOING
ASK YOU TO DO, THAT IF WE
APPLY MERCK WHERE WE LOOK TO
NORTH CAROLINA THAT HERE THIS
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, SHOULD NOT HAVE
BEEN APPLIED.
BECAUSE THERE IS NO PRIOR
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, IN THIS CASE.
; IS THAT CORRECT?
>> TWO POINTS.
>> NO I JUST WANT -- I WE HAVE
NO PRIOR CONVICTION DO WE?
>> NO.
THAT IS ABSOLUTELY WRONG, AND
THE TRIAL JUDGE CITED QUAKE$$!!!!O
AND ALL THE NEW YORK CASES IN
QUEYO BECAUSE THERE IS A
SERIES OF FEDERAL CASES, WHICH
USE THE YOUTHFUL OFFENDER
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, AS AN ADULT
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, AND IN QUEYO THEY
TOOK ALL THOSE ARGUMENTS, PUT
THEM!!$$!!!!!!
IN TOGETHER CITED TO NEW YORK
LAW, AND SAID, HERE IS HOW NEW
YORK USES A YOUTHED YOUFUL
OFFENDER CONVICTION, YOU -- IF
YOU HAVE A YOUTH -- THAT IS
GIFT, THAT IS YOUR SECOND
CHANCE.
BUT IF YOU HAVE A SUBSEQUENT
CRIMINAL HISTORY, YOU CAN USE
THAT YOUTHFUL OFFENDER
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, AND HERE ARE THE
NEW YORK CASES IN QUEGO ON
PAGE 167 TO 168 OF THE
DECISION!!$$!!!!!!!!!!!!!!
DECISION, I THINK, IT IS
PEOPLE V. DAVIS, THE COURT CAN
TAKE INTO CONSIDERATION, THAT
DEFENDANT FAILED TO LEARN FROM
THE YOUTHFUL OFFENDER
ADJUDICATION!!$$!!!!!!!!!!!!!!!!!!!!!!
ADJUDICATION, AND THE JUDGE
CAN ACCOUNT A YOUTHFUL OFFEND!!$$!!!!!!!!!!
OFFENDER ADJUDICATION WHEN
LOOKING AT HIS CRIMINAL
HISTORY, FOR NEW YORK
SENTENCING GUIDELINES.
PEOPLE V. SEAL, ASSUMING
AFFIRMING THE SENTENCE BASED
ON THE STORMY HISTORY
INCLUDING HIS YOUTHFUL OFFEND!!$$!!!!!!!!!!
OFFENDER.
>> CAN I -- BUT IS THERE ANY
CASE THAT SAYS THAT ONCE THERE
IS A SUBSEQUENT ACT OF
MISCONDUCT THE CONVICTION THAT
WAS VACATED, IS NOW
REINSTITUTED!!$$!!!!!!!!!!!!!!!!!!!!!!
REINSTITUTED?
>> SEE, QUEGO ALSO DEALS WITH
THE FACT IT IS VACATED IT IS
NOT IT DOESN'T DISAPPEAR.
IT O HE --
>> IF JUDGE SAYS TO HIM WHICH
IS AGAIN WHAT THE JURY DIDN'T
HEAR, IN THAT IN HIS CASE,
THIS MIGHT BE THIS MAY NOT
SOUND LIKE A BIG DEAL, BUT
WHAT THAT DOES IS RELIVE YOU
OF A CRIMINAL RECORD.
YOU NOW HAVE NO CRIMINAL
RECORD, IN SPITE OF THE FACT
THAT THIS IS A SERIOUS CRIME.
>> AND THAT MAY BE A
MISSTATEMENT BY THE NEW YORK
JUDGE!!$$!!!!!!!!
JUDGE, AND THAT MAY MAKE THE
PLEA INVOLUNTARY, BUT, UNDER
NEW YORK LAW, AND UNDER QUEGO
AND CASES CITED THEREIN, THERE
ARE USES FOR THE YOUTHFUL
OFFENDER IF YOU HAVE
SUBSEQUENT CRIMES, IF YOU HAVE
TO REGISTER AS A SUBSEQUENT O
FENDER!!$$!!!!!!!!!!
FENDER.
NOW, IT IS SEALED FOR ALL
INTENTS AND PURPOSES EXCEPT
FROM LAW ENFORCEMENT WHEN YOU
HAVE SUBSEQUENT CRIMES, WE
WERE NOT ABLE TO GET THAT,
WHICH DISTINGUISHED THIS CASE
FROM ROME PILLA ON ITS FACE
LET ME GO BACK TO SNOOESHG I
THOUGHT THE RECORD HERE SHOWED
THAT POSTCONVICTION COUNSEL
WAS ABLE TO GET IT JUST BY --
ASKING THROUGH MAIL, AND GOT
THE WHOLE RECORD.
>> NO, SIR THE RECORD SHOWS
THAT THEY GOT A COURT ORDER TO
RELEYS THE RECORD.
>> I'M SORRY.
>> THE RECORD SHOWS THEY GOT A
COURT ORDER TO RELEYS THE
RECORD.
SO THEY GOT A COURT ORDER.
>> BUT THE WERE ABLE TO GET A
COURT ORDER TO DO IT.
>> THEY GOT A COURT ORDER,
YES.
>> YOU SAID THE STATE WAS NOT
ABLE TO GET IT?
.
>> NO, SIR.
>> WHY NOT?
BECAUSE.
>> BECAUSE THE YOUTHFUL OFFEND!!$$!!!!!!!!!!
OFFENDER RECORD IS SEALED.
>> DID THE STATE ASK FOR A
COURT ORDER?
>> NO, WE DID NOT.
>> HOWEVER, LET ME TELL YOU
WHAT WE GOT WHEN WE GOT THESE
RECORDS!!$$!!!!!!!!!!!!
RECORDS, WHICH IF COUNSEL HAD
DONE THAN HAD TO DISCLOSE
THIS.
>> IS THE STATEMENT OF THE NEW
YORK TRIAL COURT JUDGEP TO THE
DEFENDANT UP THERE THAT YOU DO
NOT HAVE A CONVICTION AND DO
YOU -- THAT YOU ARE NOT
CONVICTED YOU DON'T HAVE TO
SAY THAT YOU WERE THAT YOUR
SLATE IS CLEAN, IS THAT AN
INCORRECT STATEMENT OF NEW
YORK LAW?
>> IN THAT WAS IN 1976.
AND THE CASES THAT NEW YORK
THAT ARE CITED IN CUEGO THERE
IS A 76 CASE, AFFIRMING THE
SENTENCE ON THE BASIS OF HIS
STORMY HISTORY WITH THE
CRIMINAL JUSTICE THAT INCLUDED
A YOUTHFUL OFFENDER AJUDD!!$$!!!!!!!!
AJUDDICATION SEX OFFENDER
REGISTRATION!!$$!!!!!!!!!!!!!!!!!!!!!!
REGISTRATION, IT CAN BE
CONSIDERED IN PAROLE AND BAIL
DETERMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
DETERMINATION.
>> I MEAN THE NEW YORK
SENTENCING SCHEME ALSO ALLOWS
SOME CONSIDERATION OF JUVENILE
ADJUDICATION DOES IT NOT?
.
>> AND WE --
>> DOES IT NOT?
>> I'M NOT SURE.
I DON'T KNOW.
>> YOU HAVEN'T LOOKED THAT
THE?
>> AT NEW YORK WHETHER THEY
CONSIDER JUVENILES?
>> RIGHT.
>> IT IF NEW YORK.
>> YOUR CAN ARGUMENT HERE IF I
UNDERSTAND IT IS THAT BECAUSE
NEW YORK IF THEY SOMEBODY HAS
A SUBSEQUENT CONVICTION OF
VIOLENT FELONY OR SOMETHING,
THAT THE SENTENCING COURT CAN
LOOK BACK AND SEE IF THERE
WERE ANY YOUTHFUL OFFENDER
CASES!!$$!!!!!!!!
CASES.
>> YES.
AND --
>> JUST ASKING -- UNDER THAT
SCHEME CAN THEY ALSO LOOK, SEE
IF THIS WERE ANY JUVENILE
CASES?
>> I DON'T KNOW.
I DON'T KNOW.
NOW, UNDER OUR SENTENCING
GUIDELINES!!$$!!!!!!!!!!!!!!!!!!
GUIDELINES, YOU CAN GO BACK
THREE YEARS, AND LOOK AT
JUVENILE ADJUDICATIONS, UNDER
MERCK, WE CAN'T USE AS A PRIOR
VIOLENT FELONY A JOOUFSH NILE
ADJUDICATION BUT WUK USE A
JUVENILE CONVICTION, THERE
TAKES DISTINCTION IN MERCK, IF
YOU ARE TREATED AS ADULT EVEN
THOUGH A JUVENILE IT IS A
PRIOR VIOLENT FELONY, WHICH IS
-- ARE YOU -- YOUTHFUL OFFEND!!$$!!!!!!!!!!
OFFENDER, ALSO IF YOU ARE --
ACTUALLY, MR. GREEN WAS 18, HE
WAS AN ADULT HE WAS SENTENCED
TO ADULT SANCTIONS, HE CAME TO
IN ORDER ON AN ADULT PAROLE.
>> WHAT ININVESTIGATION DID
PRIOR COUNSEL DO OF THE NEW
YORK OFFENSE.
>> HE -- HE KNEW FROM CROSLEY
GREEN THAT CROSLEY WAS YOUTH!!$$!!!!!!!!
YOUTHFUL OFFENDER THAT HE
ADMITTED COMMITS THIS CRIME HE
KNEW IT WAS ROBBERY HE KNEW IT
WAS PLEA BARGAINED DOWN THE
JURY KNEW ALL OF THAT, AND TO
SAY THAT THE JURY DIDN'T KNOW
THAT -- I MEAN I'VE GOT THE
RECORDS RIGHT HERE WE HAVE THE
SAME ARGUMENT WITH THE JUDGE
AND MR. GRUBER CONCEDED THAT!!$$!!!!!!
THAT --
>> THE TRIAL JUDGE IN HIS
ORDER FINDING THIS AGGRAVATE$$!!OR,
STATED THAT HE HAD A
CONVICTION FOR ARMED ROBBERY,
IN THE STATE OF NEW YORK.
>> NOW.
>>; IS THAT CORRECT?
>> IN THE ORIGINAL SENTENCING.
>>; IS THAT CORRECT?
IT SAYS ARMED ROBBERY ONCE AND
ROBBERY TWICE.
>> I'M SORRY.
>> IT SAYS JUDGE ANTON IN
ORIGINAL SENTENCING ORDER 1909
SAYS ARMED ROBBERY ONCE AND
ROBBERY TWICE.
BUT IT WAS CLEAR AT THE
HEARING PAGE 2217, IS WHERE IT
ALL COMES CLEAR, MR. RUBIN
TESTIFIED THAT HE HAD COME TO
PAROLE!!$$!!!!!!!!!!
PAROLE, ON AN COME TO FLORIDA
ON PAROLE ARMED ROBBERY
CHARGE.
MR. COPPER THE POLICE OFFICER
SAID HE WAS CHARGED WITH ARMED
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, PAGE 2217, IT BECOMES
VERY CLEAR BUT YES THEN HE
PLEA BARGAINED DOWN AND HE
PLED --
>> YOUR OPPONENT HAS CITED A
DETAILED PROBATION OR
PRESENTENCE REPORT, IN THE NEW
YORK FILE, WHERE THE NEW YORK
OFFICIAL CASTS SUBSTANTIAL
DOUBT EVEN ON THE DEFENDANT'S
PARTICIPATION IN THE ROBBERY,
AND SAYS THAT THE CHARGES WERE
DROPPED AGAINST HIS
CO-DEFENDANT!!$$!!!!!!!!!!!!!!!!!!!!!!
CO-DEFENDANT.
>> YES, SIR AND I ASKED.
>> -- IS THAT WOULDN'T THAT
HAVE SUBSTANGSLY MITIGATED
THIS AGGRAVATE$$!!OR.
>> NO, SIR I INVITE YOU TO
LOOK AT THIS IT IS IN THE
RECORD AT PAGE 5910, THIS IS
ALL STATEMENTS FROM CROSLEY
GREEN SAYING HE IS INNOCENT OF
THIS CRIME, AND THIS PAROLE
OFFICER, UP THERE, WHO IS
TRYING TO GET FLORIDA TO
ACCEPT PAROLE, IS SAYING
"CROSLEY GREEN TOLD ME THAT HE
DIDN'T REALLY DO THIS" AND THE
CO-DEFENDANT CHARGES WERE
DISMISSED WELL THE
CO-DEFENDANT CHARGES WERE
DISMISSED NINE MONTHS BEFORE
CROSLEY GREEN PLED.
CROSLEY GREEN HAD AN ATTORNEY.
HE ENTERED THIS PLEA I MEAN IF
HE HAS A PROBLEM WITH HIS NEW
YORK PLEA NEEDS TO TAKE THAT
UP WITH NEW YORK, BUT IF YOU
LOOK AT WHAT THEY HAVE NOW
GIVEN THE STATE, WHICH WE
COULDN'T GET BEFORE, IF
DEFENSE COUNSEL HAD DONE THIS,
WE WOULD HAVE HAD A FIELD DAY.
IT SAYS IN HERE, THAT HE IS
DISSOCIAL THE ICD 10 VERSION
OF ANTISOCIAL, THAT IS
SOMETHING MR. PARKER KEPT FROM
THE JURY BECAUSE HE HAD HIRED
A MENTAL HEALTH EXPERT WHO
SAID HE WASN'T AI SOCIAL, HE
DIDN'T CALL THAT MENTAL HEALTH
EXPERT, SO --
>> LET ME ASK YOU A QUESTION
ON THIS, THE JUDGE, THIS IS 65
PAGE ORDER, THAT THE JUDGE
ENTERED FOR WAS THIS SOMETHING
THE JUDGE DRAFT ORDINARY THE
STATE DRAFTED DRAFTED OR THE
STATE DRAFTED.
>> THE $$JUDGE'S ORDER.
>> POSTCONVICTION.
>> NO JUDGE JACOBIS WROTE
THAT.
>> IT IS ABOUT MOST THOROUGH
ORDER I HAVE EVER SEEN A FROM
A TRIAL JUDGE I'M SURE THAT ON
ALL THE CLAIMS ONP APPEAL THAT
WHETHER IT IS RECANTATION, OR
THE FAILURE TO YOU KNOW, PUT
ON DOG TRACKING EXPERTS, YOU
ARE GOING TO SAY THE JUDGE
MADE ALL THESE FINDINGS, OF
FACT, NOW ON THE ISSUE ON
WHICH THE JUDGE GRANTED A NEW
PENALTY PHASE WHICH IS HE
FOUND DEFICIENT PERFORMANCE,
THAT NOW GOES TO PREJUDICE OF
COURSE PREJUDICE IS SOMETHING
WE DO A MIXED QUESTION OF FACT
OR LAW, CAN YOU HELP ME OUT AS
TO WHAT PART OF THE $$JUDGE'S
ORDER ON THE PREJUDICE THRONG,
AS FAR AS EFFECT ON JURY WOULD
BE FINDING THAT WE SHOULD
ACCEPT GIVE DEFERENCE TO AS
OPPOSED TO SUBSTITUTE ON OUR
OWN JUDGMENT SFWHIE LOVE TO
THE TRIAL $$JUDGE'S ORDER IN MY
BRIEF AT 94 I WILL TELL YOU
WHERE HE WENT WRONG, THIS IS
AN INEFFECTIVE ASSISTANCE OF
COUNCIL CLAIM, MR. PARKER.
>> REMEMBER THIS 1909.
CITED TO THE JUDGE CAMPBELL, I
DON'T THINK THIS YOUTHFUL
OFFENDER CONVICTION SHOULD
COUNT BUT I RECOGNIZE --
CAMPBELL I THINK IT IS TOO
REMOTE IN TIME, ON AND ON AND
ON DID A MOTION IN LIMINE ON
THE YOUTHFUL OFFENDER THE
ARMED ROBBERY THING NOW AFTER
WE SAID THIS IT WAS CLARIFIED
IT WAS NOT AN ARMED ROBBERY,
TO THE JURY, THEY NEVER USED
THE WORD "ROBBERY".
>> I HAVE WORKED!!$$!!!!!!!!!!$$MARKED EVERY PLACE
IN CLOSING ARGUMENT I CAN READ
CITES SEVEN PLACES THEY SAID
"ROB ORY" NEVER "ARMED ROBBERY!!$$!!!!!!!!!!!!
ROBBERY" MENTIONED AFTER THAT
TIME.
>> YOUR POSITION IS BEFORE THE
JURY ARMED ROBBERY ONLY
UTILIZATIONED THAT ONE TIME --
>> IT WAS MR. RUBIN SAID HE
HAD COME FROM NEW YORK, ON
PAROLE ON AN ARM ROBBERY
CHARGE, THE OFFICER COPPER,
IKOPP!!$$!!!!!!!!
IKOPPER SAID HE HAD BEEN
CHARGED WITH ARMED ROBBERY BUT
PLEA BARGAINED DOWN TO ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, FROM THEN ON, DO YOU
NOT SEE ARMED ROBBERY, EVER IN
THE TRANSCRIPT DO YOU SEE
ROBBERY SEVEN TIMES AT PENALTY
PHASE, AND -- TWO TIMES AT THE
SENTENCING PHASE.
>> DID THE STATE ATTORNEY
ATTEMPT TO ANALOGIZE THAT NEW
YORK ROBBERY TO MAKE IT
SIMILAR TO THE ROBBERY THAT
TOOK PLACE AT THE PART OF!!$$!!AS PART
OF THIS ENTIRE CRIMINAL
EPISODE!!$$!!!!!!!!!!!!
EPISODE.
>> NOT AT ALL THERE WERE NO
DETAILS THAT COME, IN REMEMBER
THIS IS WHAT GISHZ THERE IS
RON PILLA WE DIDN'T HAVE ANY
OF THIS PAPERWORK, BUT IF WE
HAD THE PAPERWORK, THEY HAVE
GIVEN US, NOW, WE HAVE GOT THE
VICTIM'S NAME WE'VE GOT THERE
IS A FIREARM INVOLVED, WE HAVE
GOT -- ALL THE DETAILS, THAT
WE COULD NOW PRESENT AND SAY
HERE IS WHAT HAPPENED, OKAY IT
WAS PLED DOWN TO A ROBBERY BUT
HERE IS THE DETAILS.
LET ME TELL YOU WHERE ELSE THE
JUDGE WENT WRONG.
>> SO THAT WOULD BE BECAUSE
THAT IS THE PART OF THE FACT!!$$!!!!!!
FACTUAL FINDING THAT YOU SAY
HE IGNORED, THAT WHAT WHAT
WOULD BE TELL YOU INCREASED
PREJUDICE, FROM HAVING THE
FILE; IS THAT CORRECT.
>> YES, MA'AM, AND PHILOSOPHER
HE -- FIRST OF ALL HE SAID THE
JURY WAS TOLD THE JUDGE FOUND
THE DEFENDANT HAD BEEN
CONVICTED SENT TO PRISON FOR
ARMED ROBBERY, WELL, THE JURY
WAS TOLD HE HAD BEEN CHARGED
WITH ARMED ROBBERY BUT THEN HE
PLED TO A PLEASER -- SFLOOERS
I GUESS THE PROBLEM I KNOW YOU
SAID IN JUDGE ANTON$$'S ORDER HE
SAYS BOTH BUT WHEN HE -- HE
HIS SENTENCING ORDER, SAYS AND
AGGRAVATING CIRCUMSTANCES,
THEY'RE TALKING ABOUT THE
PREVIOUS CONVICTION WHEN WOULD
IT BE ROBBERY OR KIDNAPPING,
IN THIS CASE, DOES THE STATE
HOWEVER DID ESTABLISH BEYOND A
REASONABLE DOUBT THE DEFENDANT
WAS CONVICTED OF ANOTHER ARMED
ROBBERY ON JANUARY 26, 1977,
IN THE STATE OF NEW YORK, THIS
AGGRAVATING CIRCUMSTANCE DOES
EXIST.
IF THE JUDGE WHO OF COURSE --
JUDGE ANTON AN EXCELLENT JUDGE
WAS UNDER THAT IMPRESSION IT
WAS CONVICTION, AND IT WAS FOR
ARMED ROBBERY, AREN'T WE TO
PRESUME, THAT THE JURY THOUGHT
THE SAME THING?
>> NO.
BECAUSE THE JURY DIDN'T HAVE
THE PSI, WHERE THE JUDGE
PICKED THAT UP FROM WAS THE
PSI SAID THAT IT WAS AN ARMED
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY, BUT THEN HE HAD BEEN
ADJUDICATED -- HE HAD BEEN
CONVICTED AS A YOUTHFUL
OFFENDER!!$$!!!!!!!!!!!!!!
OFFENDER, THE JURY DIDN'T HAVE
ANY OF THAT.
BUT IF YOU LOOK THREE PAGES
LATER!!$$!!!!!!!!
LATER, JUDGE ANTU.N. IN
MITIGATION DEFENSE COUNSEL
OFFERED THE FACT HE SAID HE
WAS 15 OR 16, HE IS REALLY 18,
THAT THE YOUTHFUL OFFENDER, IS
MITIGATED THAT CONVICTION,
THAT ARMED ROBBERY CONVICTION
IS MITIGATED, BECAUSE IT WAS A
YOUTHFUL OFFENDER CONVICTION
IT WAS REMOTE IN TIME, HE WAS
ONLY 15 OR 16, AND JUDGE ANTON
TWICE TALKED IN NEGATION
SECTION ABOUT A ROBBERY THIS
WAS AFFIRMED ON DIRECT APPEAL,
THE ONLY DIN THE -- DOCUMENT
IN THE RECORD THAT CAME TO
THIS COURT IT SAID IT WAS
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY.
>> AND WHAT DISCLOSURED WE SAY
IN OUR DIRECT APPEAL OPINION
WHEN WE -- THE HAC AGGRAVATE$$!!!!OR
JUST MENTIONED ANOTHER PRIOR
VIOLENT FELL.
>>!!$$!!
>>.
>> YES, MA'AM.
>> DON'T SAY ARMED ROBBERY OR
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY.
>> NO JUST A PRIOR VIOLENT
FELONY THE ONLY DOCUMENT IN
THE RECORD BEFORE THIS COURT
THIS RECORD WAS UP HERE ON
DIRECT APPEAL THAT IS ONE OF
THE PROBLEMS COMING IN ON A
COLLATERAL ATTACK, AT THE TIME
IT WAS THE LAW WAS CAMPBELL.
SO --
>> I KNOW BUT IF THE COURT HAD
AND I'M REALLY CONCERNED ABOUT
THIS,P IF THE COURT HAD
EVIDENCE THAT THE CONVICTION
WAS SET ASIDE, I MEAN -- YOU
KNOW, MAYBE MERCK WOULD HAVE
COME OUT AT THAT TIME, WE
DIDN'T HAVE THAT INFORMATION,
ASSUMING THERE WAS A
CONVICTION THERE WAS NEVER AN
ARGUMENT -- ABOUT.
>> BUT, IN YOUR ASSUMES THAT
CONVICTION SET ASIDE I THINK
IF YOU READ CUEGO DRISCOLL
MATTHEW ADDRESSES ALL THE, AT
THEY ARE MAKING IT IS NOT WHAT
WE SAY AS VACATE IT IS NOT OUR
VACATE.
BACK THE JUDGES ORDER --
>> THE DEFENDANT ACTUALLY --
WHEN HE WAS WHEN THE
CONVICTION VACATE HE HAD
ACTUALLY SPENT TIME IN FRAIL
FOR IT?
.
>> YES.
>> THAT CONVICTION.
>> YES, HE SPENT A YEAR IN
ADULT JAIL AND THEN WAS
PAROLED ON ADULT PAROLE, TO
FLORIDA REGISTERED AS CONVICT!!$$!!!!!!!!!!!!
CONVICTED FELON, AND
ULTIMATELY VIOLATED THAT
PAROLE WENT BACK TO JAIL IN
NEW YORK, AND THEN WAS
REPLEASEED IN 1980.
THE CRIME OCCURRED IN 1976.
SO MANY OF HE -- IT IS AN
ADULT SANCTION, HE WAS AN
ADULT, AND UNDER BEING MERCK,
I THINK, DIGRESSED FROM THAT!!$$!!!!!!
THAT --
>> IN YOUTHFUL OFFENDER IF YOU
VIOLATE YOU CAN BE SENTENCED
TO ADULT NO FLORIDA WHEN HE
WAS VIOLATED ON THE PAROLE WAS
HE SANCTIONED AS AN ADULT OR
WAS IT STILL A YOUTHFUL OFFEND!!$$!!!!!!!!!!
OFFENDER SANCTION?
>> IN -- I DON'T KNOW.
>> YOU KNOW WHAT I'M SAYING
HERE.
>> YES, SIR, IN THE RECORD,
THERE IS A FOLDER, OF EXHIBIT,
AND IT IS ALL ONE PAGE NUMBER
BUT IT HAS GOT ALL THE PAROLE
DOCUMENTS IF THERE.
SHOWING THE WARRANT FOR THE
VIOLATION, AND THE ULTIMATE
SENTENCE, AND ALL THAT.
AND I DON'T KNOW IF IT SAYS
HOW HE WAS SENTENCED.
>> BUT THAT IS IN THE EXHIBIT,
IT IS A BROWN FOLDER AND THERE
IS IT IS A COMPOSITE EXHIBIT
OF MAYBE 100 PAGES UNDER ONE
PAGE NUMBER.
THE --
>> AND WHERE ELSE THE JUDGE
ERED.
>> THE JUDGE COMPARED THIS
CASE TO ROMPELLO THIS CASE
DOES NOT COMPAIR TO ROMP!!$$!!!!!!
ROMPEL-L.A. IN ROMAPPELLATE
ELIMITA STATE WAS GOING TO
VIEWS $$YIM'S TESTIMONY WE
DIDN'T BRING IN ONE DETAIL OF
THAT PRIOR ROBBERY WHICH NOW
WE COULD, ALSO IN ROM
APPELLATE!!$$!!!!!!!!!!!!!!!!
APPELLATA, THE TRANSCRIPT WAS
RIGHT THERE IN THE COURTHOUSE
THE PROSECUTORS LOOKING AT THE
TRANSCRIPT HE GO TO GO ADMIT.
ALSO, IN ROMPEL-L.A. HE HAD
SERIOUS MENTAL HFLT ISSUES
THERE WAS MITIGATION IN THE
PSI, WHAT WE FOUND, IN WHAT
INFORMATION THEY'VE GIVEN US
IS HE INDEPENDENCE ANTISOCIAL,
THERE IS REALLY NO MITIGATION
THAT WASN'T ALREADY PRESENTED
AT THE PENALTY PHASE, SO MANY
I WOULD ASK THIS COURT TO
AFFIRM THE PARTLY OF THE TRIAL
JUDGE'S ORDER, THAT AFFIRMS
THE CONVICTION AND REVERSE THE
PART THAT FINDS THAT THIS WAS
IN EFFECT -- INEFFECTIVELESS
UNDER ROMPELLA.
THANK YOU.
>> REBUTTAL?
>> THIS NOTION THIS WAS SOME
SORT OF KNOWLEDGE, OR IN ANY
WAY THAT DIFFERENCE BETWEEN
THE DEGREE OF OFFENSES BETWEEN
A STRONG ARMED ROBBERY AND
ARMED ROBBERY, THAT WAS --
BROUGHT UP IN TRIAL COURT BY
ANYONE ANY TIME SIMPLY
INCORRECT NOT ONLY CONFLICTS
WITH THE FINDING BY JUDGE
ANTON IT COPFLIGHTS WITH FIND
BIG JUDGE HERE ALSO CONFLICTS
WITH THE $$STATE'S RESPONSE IN
POSTCONVICTION PROCESSION TO
OUR ALLEGATION, THAT THERE WAS
PROSECUTORIAL MISCONDUCT BASED
ON THE FACT THAT --
>> LET ME LET ME INTERRUPT ASK
YOU A QUESTION.
ON PAGE 2016, THROUGH 2017 OF
THE TRANSCRIPT THE QUESTION IS
ASKED THE OFFICER, NEW YORK
OFFICER KOPER IS GOING ASK IN
YOU NEW YORK DO YOU
DIFFERENTIATE BETWEENED ARMED
ROBBERY AND SIMPLE ROBBERY HE
SAYS YES, SIR THEN GOES AND
SAYS THE CHARGES ARMED ROBBERY
HE PLED TO ROBBERY, SO THIS
SEEMS LIKE THE TRANSCRIPT
SPECIFICALLY SAYS THE OPPOSITE
WHAT YOU JUST STATED.
>> WELL MY READING OF THE
TRANSCRIPT IT GOES ON FOR A
ABOUT IT AND THEN HE HAS --
AND I HEARD THAT HE -- I HEARD
THAT HE PLED OUT TO ROBBERY.
>> DO YOU DIFFERENTIATE
BETWEEN ARMED ROBBERY AND
SIMPLE ROBBERY IN NEW YORK?
>> I --
>> IT -- HE SAYS YES.
>> TALKING ABOUT MAKING
ARREST,YES, AND HE SAID THAT
HE ARRESTED CROSLEY -- GREENE
I BELIEVE FOR ARMED ROBBERY.
>> LET ME ASK YOU A -- IF THIS
WERE GO BACK TO NEW PENALTY
FACE WOULD YOU RESPOND TO THE
STATES ARGUMENT THAT THAT
WOULD BE INFORMATION AVAILABLE
TO FROM THAT FILE OTHERWISE
UNAVAILABLE BECAUSE THEY DID
NOT HAVE ACCESS TO THAT SEALED
RECORD?
AS FAR AS THE -- PSYCHOLOGICAL
STATUS OF THE CRIME ET
CETERA --
>> I WOULD BE HAPPY IF THE
ENTIRE CONTENTS OF THE FILE
WENT BEFORE THE JURY YES WHAT
THEY ARE SAYING IS TRUE, SO
FAR AS I KNOW, BECAUSE I THINK
WE WOULD PROBABLY -- INTRODUCE
THE ENTIRE STATEMENT BY THE VI
STEPHENSON WHICH INDICATES
THAT THE OFFENSE ITS VERY THAT
CROSS AGREEMENT IS PROBABLY
NOT MAY WELL NOT HAVE BEEN
GUILTY OF THE OFFENSE AT ALL
SIMPLY PLED OUT IN ORDER TO
GET OUT THAT HE WAS A MIGRANT
WORKER DIDN'T HAVE FAMILY
THERE, HE COULDN'T MAKE BAIL,
WHEREAS CO-DEFENDANT THE STATE
IN NEW YORK, THEY COME IN
DROPPED CHARGES AGAINSTCO
DEFT,AND INDICATE THAT THERE
WAS A PROOF PROBLEM WITH
REGARD TO CHARGES AGAINST
CROSLEY GREEN HIMSELF.
SO CHANCES ARE WOULD HE HAVE
SOUGHT TO INTRODUCE THAT TYPE
OF INFORMATION AT COURT.
I DON'T KNOW IF THAT ANSWER AS
THE QUESTION THERE MAY BE SOME
THAT ISSUES WOULD HAVE TO BE
ADDRESSED IN --
>> LET ME ASK YOU IS IT TRUE
THAT MR. PARKER GOT MR. GREEN
EVALUATED DECIDED NOT TO
INTRODUCE THAT EVALUATION
BECAUSE IT HAD ANTISOCIAL
PERSONALITY OR SIMILAR TYPE
TRAITS AND THOSE SAME TRAITS
WOULD HAVE BEEN REVEALED BY
THE NEW YORK CASE.
>> I DON'T RECALL, NOW, WHAT
WHETHER THE RECORD REFLECTS
BHA WAS -- REFLECTS WHAT WAS
IN THE EVALUATION, TRUE THAT
HE DID GET EVALUATION DECIDED
NOT PROCEED IN THAT DIRECTION,
SFLOOND WHY.
>> THAT IS A REASONABLE
INSENCE FROM --
>> WITH OUR HELP YOU HAVE NOW
EXHAUSTED MORE THAN YOUR TIME.
THAT YOU FOR THE ARGUMENTS WE
WILL TAKE THE CASE UNDER
ADVISEMENT
ADVISEMENT.
>> COURT WILL STAND IN RECESS
UNTIL 9:00 TOMORROW MORNING.
>> PLEASE RISE.