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Eddie Junior Brigham v. State of Florida
SC05-245
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> THE FINAL CASE ON THE
CALENDAR THIS MORNING IS
BINGHAM VERSUS THE STATE OF
FLORIDA.
MR. ANDERSON.
>> THANK YOU.
MAY IT PLEASE THE COURT.
MY NAME IS JEFFREY ANDERSON,
I REPRESENT THE APPELLANT.
TO LET YOU KNOW WHERE I AM
GOING WITH THIS BECAUSE
THERE IS A LOT OF ISSUE ON
APPEAL.
>> YES.
I WILL START OUT WITH POINT
THREE AND THEN COVER THE
FIRST TWO SUFFICIENCY
ISSUES.
IN POINT 3 INVOLVES THE
DENIAL OF THE MOTION TO
DISMISS BECAUSE OF THE
FAILURE TO DISCLOSE THE
STATE WITNESS, DETECTIVE
HALL AND THE TRIAL ATTORNEY
INDICATED THAT
NON-DISCLOSURE IMPACTED HIS
PREPEREMPTORY CHALLENGE
DECISIONS AND THE LAW IS
CLEAR THAT IF THERE IS AMON
DISCLOSURE THAT IS RELEVANT
AND MATERIAL AS TO
INFORMATION AND THERE IS NOT
A LACK OF DUE DILIGENCE
REVERSALS WARRANTED GIVING
THIS AS A TYPE OF
INFORMATION THAT IS, OF
COURSE, RELEVANT, JUROR
KNOWING A WITNESS AND THE
KEY ISSUE IS, IS IT
MATERIAL?
AND MATERIALALITY IS WHETHER
IT IMPACTS MAKING AN
INFORMED DECISION AS TO JURY
SELECTION AND IN THE CASE, I
THINK THERE IS TWO THINGS TO
CONSIDER, ONE IS THE
IMPORTANCE OF THE WITNESS,
AND THIS WAS A VERY
IMPORTANT WITNESS IN THIS
CASE, IT WAS DETECTIVE WHO
IS THE LEAD INVESTIGATOR AND
HE DID THE INVESTIGATION AND
HE ASSIGNED VARIOUS PARTS OF
THE INVESTIGATION AND WHEN
HE WAS CROSS-EXAMINED BY THE
DEFENSE, --
>> WHAT IS THE STRONGEST
EVIDENCE?
THAT YOU POINT TO ABOUT THE
CONNECTION BETWEEN THIS
JUROR AND THE WITNESS?
HOW CLOSE WERE THEY?
HOW OF OFTEN DO THEY SEE
EACH OTHER?
>> HE TESTIFIED THAT HE
WORKED AS SECURITY OFFICER
IN A BAR FOR A PERIOD OF TWO
YEARS AND THAT HALL WOULD
COME IN THREE OR FOUR TIME
AS MONTH AND THEY TALK AND
HAVE CONVERSATIONS AND I
THINK THAT NEXUS COMBINED
WITH HOW IMPORTANT THIS
WITNESS IS IS REALLY
IMPORTANT BECAUSE IT WOULD
IMPACT A DECISION WHETHER TO
EXERCISE A PEREMPTORY ON HIM,
NOT ONLY ARE YOU WORRIED
ABOUT THE SUBCONSCIOUS BIAS
THAT THE JUROR WOULD HAVE
TOWARD DETECTIVE HALL, YOU
HAVE TO CONSIDER, ALSO, YOU
KNOW THAT THE DEFENSE IS
GOING TO ATTACK THE HALL AS
THE LEAD INVESTIGATOR IN A
CASE WHERE THEY CLAIM WAS
NOT INVESTIGATED GOOD AND
ALL YOU HAVE IS
CIRCUMSTANTIAL EVIDENCE, SO
YOU WORRY ABOUT A BACKLASH.
>> WHAT WAS THE QUESTION
ASKED OF THE JUR ZY DOES
ANYBODY KNOW DETECTIVE HALL?
>> A SPECIFICALLY FIRST TOLD
THE JURY TO LISTEN CAREFULLY
TO THE WITNESS LIST AND THEN
THEY SAID, OKAY, HERE --
THESE WITNESSES MAY OR MAY
NOT BE CALLED DURING THE
COURSE OF THE TRIAL.
THIS IS HOW IT STARTS OUT.
BILL HALL DETECT WHICH HAVE
THE 4th FT. PIERCE POLICE
DEPARTMENT.
THEN THEY DO THAT WITH FIVE
WITNESSES.
THEY REALLY SINGLE THEM OUT.
THEN, AT THE END, THEY JUST
START GOING, YOU KNOW,
OFFICER RICK RUSS, SERGEANT
HARRISON, THEY GROUP THE
NAMES, BUT IN THE BEGINNING,
THEY SPECIFY AND SINGLE OUT.
>> WHAT DID THEY ASK THE
JUROR?
WHAT IS THE QUESTION TO THE
JURORS THAT THEY TO RESPOND
TO?
>> WHETHER THEY KNOW ANYONE
ON THE WITNESS LIST.
YOU GOT A LOT OF RESPONSES,
THERE WERE APPROXIMATELY ONE
DOZEN RESPONSES FROM JURORS
WHO KNEW WITNESSES.
IN FACT, ONE OF THEM, I
THINK IT IS JUROR VULCHER
KNEW DETECTIVE HALL.
>> NOW, THIS JUROR HERE,
WHEN IT DID BECOME KNOWN,
WHEN DID HE MAKE IT KNOWN?
>> HE MADE IT KNOWN AFTER
CROSS-EXAMINATION, THERE WAS
A RECESS AND THE BAILIFF AT
THE END OF THE RECESS CAME
IN AND TOLD EVERYONE THAT A
JUROR JUST TOLD ME THAT HE
KNOWS DETECTIVE HALL.
>> WHAT WAS THE VOIR DIRE OF
THE JUROR WHAT IT DID REVEAL
MOOL THIS THERE ARE CASES
WHERE JURORS DON'T KNOW
PEOPLE'S NAME THEN THEY
REALIZE, OH, I KNOW THAT
PERSON.
THEN, THEY DISCLOSE IT.
IS THIS THAT CASE?
>> YES, THAT IS THAT TYPE OF
CASE, REALLY, THE
RECOGNITION OF THE NAME
REALLY DOESN'T POP INTO
THEIR MIND UNTIL THEY SEE
THE ACTUAL FACE.
AND THIS IS A SITUATION, I
THINK, THAT GOES TO WHETHER
CONCEALMENT ASPECT OF IT
FROM DEFENSE COUNSEL AND OUR
ARGUMENT ON THAT, IT DOESN'T
HAVE TO DEAL WITH THE
CULPABILITY OF THE JUROR.
THITS DO WHETHER THIS
INFORMATION IS CONCEALED
FROM THE PARDON.
>> HE DIDN'T KNOW, IF THE
JUROR DIDN'T KNOW WHO DIDN'T
COME TO MIND UNTIL THEY SAW
THE WITNESS, HOW CAN THAT BE
CONCEAL AM.
>> WELL, LIKE SAID, IT IS
NOT CULPABILITY, HE MAY NOT
HAVE THOUGHT OF THAT.
YOU KNOW, THERE ARE VARIOUS
REASONS, UM, HE MIGHT NOT
CONNECT IT UP AT THAT
PARTICULAR MOMENT.
BUY DOES CONNECT IT UP THAT
HE KNOWS THIS GUY LATER.
>> THEN WHAT HAPPENED?
>> THEN, WELL, JUROR SAID I
RECOGNIZED HIM WHEN HE TOOK
THE STANDND I KNEW I KNEW
HIM.
AFTER A FEW RECESSES, HE
FINALLY REVEALED THAT
INFORMATION TO EVERYBODY.
UNFORTUNATELY, FOR THE
DEFENSE, IT IS AFTER
CROSS-EXAMINATION, WHERE
DEFENSE HAS REALLY TORN INTO
DETECTIVE HALL.
>> DID YOU ASK THE
SUBSTITUTE FOR ALTERNATE?
>> YES.
THE DEFENSE DID ASK FOR
DISMISS THE JUROR AND HAVE
TWO ALTERNATES AVAILABLE,
THE STATE DIDN'T WANT AN
ALTERNATE TO SERVE AND I
SUBMIT BECAUSE THEY KNEW
THEY HAD A TACTICAL
ADVANTAGE, THEY HAVE A JUROR
WHO KNOWS THE LEAD
INVESTIGATE ORN THE CASE.
YOU SAY THAT IS THE ERROR,
NOT THAT THEY DISCLOSED AT
THE TIME OF VOIR DIRE REMOVE
THE JUROR WHEN IT WAS
REVEALED?
>> IT IS WHEN DEFENSE
COUNSEL SAID, I MOVE TO
DISMISS THE JUROR, UM,
BECAUSE I WOULD HAVE
EXERCISED PEREMPTORY
CHALLENGE IF I HAD KNOWN
ABOUT THIS INFORMATION.
>> YOU HAVE GOT LIMITED
TIME.
I AM CONCERNED AND YOU HAVE
RAISED A SUBSTANTIAL ISSUE
ON THIS JUDGMENT OF THE
ACQUITTAL ON THE
PREMEDITATED MURDER AN I
WOULD ASK YOU TO, IN WHAT IS
UNUSUAL IN THE CASE, AT
LEAST, FOR ME, THAT THE
JUDGE HAD ALREADY DIRECTED A
JUDGMENT OF ACQUITTAL ON THE
SEXUAL BATTERY.
>> RIGHT.
>> BUT YET, THE SEXUAL, THE
EVIDENCE OF THE SEXUAL ACT,
IT WOULD AGREE WAS GOING TO
BE OF WHAT THE JURY WOULD
HEAR, EVEN THOUGH THEY WERE
NOT GOING TO HEAR IT WAS
SEXUAL BATTERY.
>> RIGHT.
>> OKAY.
YOU COULDN'T AVOID THAT.
>> SO NOW WHAT YOU HAVE
THOUGH IS SEXUAL ACT HAS
OCCURRED AND HASN'T THE
STATE PUT ON SUFFICIENT
EVIDENCE THAT AT THE TIME
THIS PERSON, AT THE TIME THE
VICTIM IS MURDERED, THAT SHE
IS IN THE SAME POSITION AS
AFTER IMMEDIATELY AFTER SEX,
IN OTHER WORDS, THERE WAS NO
GETTING UP, THERE WAS NO
DRESSING, IS THAT MOST
VALUABLE TOLL THE STATE
FIRST, THAT IS ESTABLISHED?
ON PAGE 13 OF THE BRIEF,
THEY LISTED THAT.
THEY SAY THAT IS THE CASE.
>> I THINK THAT ACTUALLY
GOES TO THE ISSUE OF
IDENTITY IN THE EVIDENCE
WILLING.
>> DOES IT ESTABLISH THAT
SHE WAS MURDERED IN THE SAME
POSITION AS SHE WAS AFTER
SHE HAD SEX WITH WHOEVER SHE
HAD SEX?
DOES IT ESTABLISH THAT ON
THE LIGHT MOST VALUE
FAVORABLE TO THE STATE?
>> NO.
FOR VARIOUS -- I THINK YOU
HAVE TO --, NO I DON'T THINK
SO.
>> SO TELL US AGAIN, YOU
THINK THE EVIDENCE THAT WAS
PROPERLY PUT IN WHY IT IS,
THERE ISN'T CIRCUMSTANTIAL
EVIDENCE OF PREMEDITATION?
>> WELL, I THINK -- BECAUSE
THERE IS NOT A LINK OF THE
VIOLENCE, UM, LET ME DO THE
IDENTITY BECAUSE I THINK
THAT WILL FILL IN SOME
THINGS BECAUSE THIS IS A
CASE WHERE, UM, OKAY, THE
STATE DID PROVE THAT THEY
WERE TOGETHER.
THE DEFENDANT AND THE
VICTIM.
THEY PROVE THEY HAD SEX, BUT
THEY DIDN'T PROVE THE
STRANGULATION WAS BY THE
DEFENDANT.
AND BUT TO MAKE THE
INFERENCE.
>> YOU AGREE SHE DIED BY
STRANGULATION?
>> YES, THAT IS NO DOUBT.
THAT WAS STIPULATED TO.
>> OKAY.
THIS DIFFERS IN THAT REGARD,
CORTFORD, THE ISSUE WAS
WHETHER THERE WAS DEATH BY
STRANGULATION.
>> WELL, I THOUGHT THERE WAS
A DEATH BY STRANGULATION IN
THAT CASE, THE WAY I READ IT,
THE ISSUE WHETHER THERE WAS
STILL PREMEDITATION PROVEN.
IN A THINK CARPENTER AND
GREEN WERE MANUAL
STRANGULATIONS.
>> ARE YOU ADVANCING THAT
THIS COULD HAVE HAPPENED,
THAT KEY HAVE BEEN THE
PERSON THAT STRANGLED HER,
BUT DID IT AT THE END OF THE
SEX ACT?
>> I AM SAYING WE DON'T HAVE
ANY IDEA AS TO REGARD
HIMSELF OF WHO DID THIS, HOW
AND WHEN IT HAPPENED.
>> I GUESS THAT I WHERE I AM
THINKING THAT BECAUSE IT IS
ESTABLISHED, HIS SEMEN IS IN
HER, SHE HAS NOT BEEN MOVED
FROM WHERE SHE WAS AT THE
TIME SHE HAD SEX AND IT IS
ONLY, YOU KNOW, IT IS MORE
LOGICAL THAT HE IS THE LAST
PERSON TO HAVE SEX WITH HER
RALTER THAN HER HUSBAND, THE
JURY CAN INFER, THAT THEN,
WHY IT ISN'T ALSO LEAD TO
INFERANCE THAT HE IS THE ONE
THAT HAS STRANGLED HER AFTER
HAVING SEX?
>> WELL, I DON'T THINK THERE
IS INFERENCE, THAT IS THE
PLACE WHERE THE BODY WAS
FOUND IS WHERE THEY HAD SEX.
BECAUSE IN MATURE -- THE
BODY HAS NO DIRT ON THE BODY,
AND YOU KNOW, THERE HAS GOT
TO BE SOME PHYSICAL ACTIVITY
TO PRODUCE THAT, THERE IS
MORE LIKELY SCENARIO, THAT
IS WHERE THE BODIES PLACED,
UM, AND -- WHAT ABOUT THE
CONTINUING PRESENCE OF THE
CONDOM?
>> THE MEDICAL EXAMINER, THE
KEY BECOMES WHERE WAS THE
CONDOM WHEN SHE WAS ALIVE?
THE MEDICAL EXAMINER SAID WE
DON'T KNOW.
IT IS PURE SPECULATION.
BECAUSE YOU HAVE MOVEMENT OF
THE BODY BY THE POLICE, AND
THEY TURNED IT OVER, WHICH
COULD EFFECT THE POSITION,
EVEN AFTER HER DEATH, THE
MEDICAL EXAMINER SAID, THERE
COULD BE MOVEMENT OF THE
CONDOM DUE TO THE STATE OF
THE BODY, ALTHOUGH, IT IS
PROBABLY MORE ESTABLISHED
ONCE THE COMPOSITION BEGIN,
YOU KNOW?
IT IS JUST DOESN'T PROVE
PREMEDITATION OR IDENTITY.
THE ONE POINT THAT I WANT TO
GET AT THAT MAY --
>> WHY DOESN'T IT PROVE
IDENTITY OR, IN OTHER WORD,
PART OF THE CHAIN OF
CIRCUMSTANCES THAT THE, THAT
THE DEFENDANT WAS ASSOCIATED
WITH THE CONDOM, THAT IS
CORRECT?
>> CORRECT.
>> THE CONDOM IS STILL
THERE.
ALL RIGHT.
SO WHY, WHY CAN'T FACT
FINDER DRAW INFERENCE THAT,
THAT THE KILLING THEN WOULD
HAVE OCCURRED VIRTUALLY AT
THE SAME TIME OR VERY CLOSE
IN TIME TO THAT BECAUSE
ORDINARILY, THE CONDOM, FIT
WAS JUST USED FOR SEX WOULD
HAVE BEEN REMOVED AND THERE
WOULD HAVE BEEN A GAP IN THE
TIME.
>> WELL, FIRST OF ALL, YOU
HAVE TO INFER A LOT OF
THINGS ABOUT THE VICTIM IN
THIS CASE AND THE EVIDENCE
SHOW THAT SHE HAD DRUGS,
ALCOHOL IN HER SYSTEM.
WE DON'T KNOW IF SHE WAS
AWARE OF THE PRESENCE OF THE
CONDOM.
ONE THING I WOULD LIKE TO
POINT OUT IS THAT THE
STATE'S OWN EVIDENCE SEEMS
TO SHOW THAT THE VICTIM HAD
SEX WITH THREE INDIVIDUALS
A DEFENDANT, AND IF YOU LOOK
AT AND I THINK -- THIS IN MY
BRIEF -- ITEM 14, PAGE 1127,
LINE 17 ON, THE DNA EXPERTS
FORTITUDE STATE SAYS THEIR
SWBAI. S, VAGINAL SWABS SHOWED
SEMEN FROM TWO INDIVIDUALS IN
THE VAGINA, TWO -- SPERM --
>> CONSISTENT WITH EDDIBE
BIGHAM AND THE -- BUT --
WASN'T 54 THE EXPERT SAYS WE
KNOW IT IS NOT THE HUSBAND.
SO THAT LEAVES A THIRD
INDIVIDUAL, AND IF YOU WOULD
HAVE THE $$STATE'S THEORY IN
THIS CASE THEY SAID AFTER THE
DEFENDANT HAD VAGINAL -- --
FACT THERE WAS BEING NO
REMAINING SPERM OR POERM'S
SPERM THE HUSBAND WRAES MOVED
THAT WOULD ON THE THIS THIRD
INDIVIDUAL WOULD HAVE TO HAVE
HAD SEX WITH THE VICTIM AFTER
THE DEFENDANT.
>> WAS THAT A THEORY ADVANCED
ARGUED TO THE JUDGE AT THE
TRIAL?
>> TO THE JUDGE?
>> WITH THE, ON THE -- OF
ACQUITTAL PORTION -- I --
I'M --
>> THAT WASN'T -- THE WAY THAT
THIS NOW BEING ARTICULATED,
BUT, SO READING BETWEEN THE
LINES.
>> READING BETWEEN THE LINES
WHETHER EVERYBODY TOOK THAT TO
MEAN THAT THAT WAS THE HUSBAND
AND NOT THAT IT WAS A THIRD
PARTY -- WHEN DID THAT FIRST
-- IF IT EVER DID, WHAT DID
THAT GET ARTICULATED, DURING
THE COURSE OF THE TRIAL?
THAT IS THAT THERE WAS A THIRD
PARTY SEMEN, WHILE THAT WAS
NOT THE HUSBAND AND NOT --
>> TEST OF -- THE AND LIKE I
SAID THAT IS WAS -- 1127, THAT
WASN'T THE -- ARGUMENT TO THE
TRIAL COURT.
>> THE ARGUMENT WAS BASICALLY,
NOT LINKING THE CIRCUMSTANTIAL
EVIDENCE TO THE TEST, LET ME
GO BACK TO THE QUESTION AS FAR
AS THE -- PROOF THAT THE
VICTIM DIDN'T RISE -- THE
LOCATION WHERE THE BODY WAS --
THAT IS AN INFERENCE THEY USED
TO INFER THAT THE DEFENDANT
WAS KILLED IN THIS CASE.
TO REACH THAT INFERENCE THE
EVIDENCE THEY USE IS THE
INFERENCE THAT SHE -- DRESS --
AND NEXT -- BASICALLY
SUPPORTED BY ANOTHER
INFERENCE, THAT SHE NEVER PUT
ON HER PANTIES, NOR DID SHE
PUT ON HER SHORTS, AND OTHER
INFERENCES THAT THE --
INFERENCES LEFT -- AND PART OF
IT WOULD BE IF SHE PUT ON HER
PANTIES WOULD YOU EXPECT TO
SEE THE SEMEN IN HER PANTS,
AND YOU WOULD EXPECT TO SEE --
FECAL MATTER -- SO BOTH OF TO
GET TO BOTH INFERENCES YOU
HAVE TO INFER FURTHER THAT
SEMEN SHOULD BE IN THE PANT!!$$!!!!!!
PANTIES, AND IF THEY DO THAT
BY WELL YOU CAN INFER DRAIN!!$$!!!!!!!!
DRAINAGE, AND, YOU CAN INFER,
THAT THE DEFENDANT PUT ENOUGH
SEMEN TO DRAIN, AND THERE'S
JUST NOT THE EVIDENCE TO
SUPPORT THAT.
THE EVIDENCE WASN'T PRESENTED
ON THAT.
AND THE SAME WITH HER THE
FECAL MATTER WOULD -- THE
CONDOM, AND YOU HAVE THE
MEDICAL EXAMINER, TESTIFYING
THAT IS PURE SPECULATION AND
THE BOTTOM LINE WHAT IS I'M
SAYING IS YOU HAVE A SERIES OF
SPECULATIONS EVEN TO GET HIM
IDENTIFIED INTO KILLING IN
THIS CASE --
>> THE STATE ARGUES IN -- THAT
THEY WERE -- EACH OTHER,
VICTIM, AND THE DEFENDANT, AND
THEY SAY THEN THE TRIAL
EVIDENCE CLEARLY SHOWED THAT
SHE WAS DRAGGED FROM THE --
SECLUSION WADDED LOTS,
WHERE -- THEM HAD -- ANAL SEX
THE VEGETATION -- PINE NEEDLES
OH, I'M ASKING YOU, WITH IT
BEING -- WE HAVE -- WHICH IS
JUDGMENT OF ACQUITTAL ON THE
SEXUAL BATTERY IS THAT STILL
SOMETHING FOR THEM PERMISSIBLY
TO ARGUE, THAT BEING THE
PREMEDITATED MURDER THAT IS
SHE WAS DRAGGED FROM THE
STREET IN SECLUSION OF A
WOODED LOT WHERE THEY HAD SEX?
>> I THINK YOU CAN LOOK AT ALL
THE EVIDENCE AND DETERMINE
PREMEDITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
PREMEDITATION.
I WOULD ALSO NOTE THAT THE
KIDNAPPING WAS -- THERE WAS A
KIND OF -- COULD COUNT OF
KIDNAPPING
>> I DON'T KNOW HOW HE CAN
LOOK AT IT INTERPRET SOMETHING
DIFFERENTLY THAT SHE WAS
DRAGGED AGAINST HER WILL, THAT
IS HELPFUL TO YOU -- WITH
THAT, AND I MIGHT INFER THAT,
BUT THE JUDGES ARE --
DETERMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
DETERMINATION.
>> RIGHT.
I MEAN, I GET TO THE
UNDERCURRENT THERE WAS NO
EVIDENCE OF DIRECT -- RELATED
TO THIS CASE, THAT IS WILD
SPECULATION THIS WAS AN AREA
THAT WAS OFFICER CALLED IT A$$!!!!
A --
>> ONE OF THE THINGS YOU
ALREADY -- THAT YOU ARGUED
EARLIER -- ARGUED AGAIN IN JOA
NOT EVIDENCE OF INVOLUNTARY
DRAGGING --
>> YES, I CONTINUE THINK IT IS
CORRECT TO SUBVERT THE RULING
OF THE TRIAL COURT.
>> WHAT DID HE SAY IN HIS
STATEMENT ABOUT THE WOODS?
>> THE STATEMENT, HE GAVE
ABOUT THE WOODS WAS HE DIDN'T
GIVE THE SPECIFIC PLACE HE WAS
IN THAT AREA, THAT THEY HAD
SEX A SECOND TIME THAT NIGHT.
AND HE SAID THAT THE $$COURT'S
STATEMENT THAT IS HE DIDN'T
KILL HER OR RAPE HER ANY
VIOLENCE -- WHEN HE WAS
LEAVING SHE WAS IN THE PROCESS
OF DRESSING.
>> IN THE WOODS, I MEAN HE DID
ACKNOWLEDGE BEING IN THE
WOODS.!!$$!!!!!!!!!!
WOODS.
>> HE WAS -- HE TALKED ABOUT
-- BUSHES, BUSHES ARE CLOSER
TO THE ROADWAY THAT IS WHERE
THE CONDOM -- ALL THAT -- YOU
KNOW, HE -- I DON'T KNOW HOW
HE CHARACTERIZES IT AS BEING
IN THE WOODS OR NOT, HE IS IN
THE AREA AND LIKE I SAID I
DON'T THINK -- WHERE BODY IS
FOUND WHERE IS THE SEX KURD,
THE BODY --
>> HMM?
>> WHAT YOU DO BASE THAT ON?
I MEAN IT SEEMS TO ME THAT WE
ARE TALKING ABOUT A RELATIVELY
SMALL AREA, THAT -- SOME THIS
IS NOT SOME AREA THAT IS NOT!!$$!!!!
NOT --
>> WELL, THE ROADWAY.
>> WHAT -- WHY YOU DO SAY THAT
THE PLACE WHERE THE BODY IS IS
NOT THE PLACE WHERE THE SEX --
TOOK PLACE?
>> BECAUSE THE PLACE WHERE THE
BODY IS FOUND IS -- 20, 25
YARDS OFF THE ROAD.
AND IT IS THE NATURE OF THE
CONDITION OF THE BODY IS THAT
THERE IS THERE IS PINE NEEDLES
WHEN YOU TURN IT OVER BECAUSE
PINE NEEDLES AROUND THERE, BUT
IF THERE WERE ANY ACTIVITY
THERE, WOULD YOU EXPECT TO SEE
YOU KNOW, DIRT ON THE BODY,
BECAUSE IT WAS -- YOU KNOW,
PINE NEEDLES NOT THICK -- BUT
UNDERNEATH WAS DIRT WOULD YOU
EXPECT TO FIND SOME TRACE OF
THE DIRT SO THAT IS WHY I'M
SAYING IT IS PROBABLY
SOMETHING ELSE IN THE BODY IS
PLACED THERE BY WHOEVER DID
THIS.
>> WHEN TIME RANGE DID THE
MEDICAL EXAMINER GIVE, AS THE
TIME OF DEATH?
>> HE GAVE A BALL PARK FIGURE
OF BETWEEN 1:00 AM AND 2:00
AM, BASED ON THE -- BODY
TEMPERATURE OF -- DERRING PER
HOUR AND HE SAID -- DEGREE PER
HOUR SAID USUALLY BODY
TEMPERATURE DROPS BETWEEN WERE
A DEGREE AND A DEGREE AND A
HALF HERE HOUR SO HE SAYS BASE!!$$!!!!!!
BASED IF WE USE THE DEGREE AN
HOUR, YOU KNOW SOMEWHERE, 1:00!!$$!!!!!!
1:00, 2:00 AM I DID
CALCULATIONS IF YOU USE A
DEGREE AND A HALF, HE WOULD
YOU KNOW COULD IT BE SOMEWHERE
AROUND, AFTER 3:00.
AND IF YOU ALSO LOOK AT THE
EVIDENCE, AT THE CONDOM WAS
PARTIALLY FOUND INSIDE THE --
THE WITH MIXTURE OF SEMEN ON
IT, THE -- EXPERTS TESTED THAT
WOULD ONLY SURVIVE A FEW HOURS
AT MOST.
>> IF YOU ACCEPT THAT --
SEVERAL MINUTES AGO, THAT HE
HAS SEX WITH HER IN THAT
POSITION PRESIDENT BUSH THAT
YOU HAVE GOT TO PUT IN IN THE
MIX IT IS NOW THAT IT IS NOT
SEXUAL BATTERY IT IS
CONSENSUAL SEX, GIVE ME THE
BEST CASE THAT THE STATE HAS
TO BE ABLE TO INFER THAT AFTER
SEX THERE IS A PREMEDITATED
MURDER THAT OCCURRED?
>> MY CLIENT.
>> YOU KNOW AGAIN, BECAUSE ONE
IS HE DIDN'T DO IT THERE IS NO
EVIDENCE HE DID IT THE OTHER
IS, THERE IS EVIDENCE HE DID
IT BUT AT THE MOST NOW GOING
TO BE SECOND DEGREE MURDER, SO
LET'S ASSUME THAT SHE -- I
ACCEPT THE $$STATE'S INFERENCES,
THAT MURDER O OCCURS -- WHERE
DOES THAT LEAVE ME AS FAR AS
ON THE PREMEDITATION?
>> ON THE I THINK THE BEST
ARGUMENT AND IT HAS TO BE
BASICALLY!!$$!!!!!!!!!!!!!!!!
BASICALLY, IS THAT
STRANGULATION IS PER SE
EVIDENCE OF PREMEDITATION.
AND YOU DON'T NEED OTHER
EVIDENCE PRESIDENT BUT I THINK
THAT IS ALSO THE WEAKNESS IN
THE ARGUMENT, BECAUSE I THINK
-- THIS COURT --
>> HAVE WE HELD THAT IF THERE
IS NOT EVIDENCE AS INDICATED,
WHERE THERE IS, SOMEONE SAYS,
I -- SEX ACT, THAT IS NOT
HERE, IS THERE -- DO WE HAVE
CASES THAT SAY THE
STRANGULATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
STRANGULATION, IS SUFFICIENT
TO SUPPLY -- EVIDENCE OF
PREMEDITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
PREMEDITATION?
>> YOU DON'T HAVE CASES THAT
SAY THAT.
YOU HAVE THE CARPENTER CASE,
WHERE -- UPON SUFFICIENCY OF
THE EVIDENCE IDENTITY
REJECTING SOME OF THE THINGS
MR. CARPENTER SAID BUT THE
TALK WAS ABOUT NECK
COMPRESSION WOULD THINK TO
THREE MINUTES, WASN'T GOING TO
BE SUFFICIENT TO PROOF PRE--
APPROVE PREMEDITATION SEEMS TO
ME THE ARGUMENT FOR
STRANGULATION AND MEDICATION
IS THE AMOUNT OF TIME BUT NOT
THE AMOUNT OF TIME WHICH
PROVES PREMEDITATION OTHERWISE
SHOWING JUST CONTESTANTS TAKE
A FRACTION OF A SECOND WOULD
AUTOMATICALLY!!$$!!!!!!!!!!!!!!!!!!!!!!!!
AUTOMATICALLY, BE PRED
MEDITATE!!$$!!!!!!!!!!!!!!
MEDITATED, IT IS I THINK THE
STRANGULATION COULD BE A A
FACTOR BUT THERE'S GOT TO BE
OTHER FACTORS.
>> THERE IS NO PROCUREMENT OF
A WEAPON TO THAT -- THE CASE
THAT WOULD BE SAID THAT.
>> HE RIGHT.
>> -- INDICATION OF SOME
PLANNED METHOD OF CCP, BUT
SOMETHING --
>> RIGHT.
>> -- AS OPPOSED TO -- ARE --
IN THE LIGHT AGAINST MOST --
WOULD YOU ADVANCE, IS HOW
COULD THIS HAVE HAPPENED IN
THE WAY THAT -- PREMED -- AT
THE END OF THE SEX ANTH WE ARE
ASSUMING -- SAID SOMETHING TO
HIM, OR LOSES IT AND BEGINS TO
STRANGLE HER?
>> I THINK IT IS THE VOID OF
WE KNOWING HAPPENED IS -- WE
KNOWING HAPPENED US JUST THERE
WE DON'T KNOW WHAT WENT ON --
-- OUR SYSTEM THAT BE ABLE TO
PROOF OF WHAT HAPPENED.
>> DO WE KNOW IF SHE PASSED
OUT, WAS THERE, BECAUSE HERE
IS SOME -- SHE HAD HAD -- A
CASE HALF -- OR DRUGS WHAT!!$$!!!!!!
WHATEVER, WHAT IS THE
KNOWLEDGE OF WHAT CONSCIOUS --
HER STATE OF CONSCIOUSNESS WAS
DURING THIS TIME PERIOD?
>> WE WOULD I DON'T KNOW FOR
CERTAIN, SHE HAS A LOT OF
COCAINE IN HER SYSTEM
TOXICOLOGY REPORT SHOWED BUT
WE DON'T YOU KNOW THERE WAS NO
ONE -- JUMPS UP TESTIFIED AS
EXPERT THAT AMOUNT OF COCAINE,
AND SHE ALSO HAD SOME ON
BEATES!!$$!!!!!!!!!!
BEATES, AND, ALCOHOL, WOULD
PRODUCE WOULD NOT HAVE BEEN
CONSCIOUS, BUT, YOU KNOW, NO
ONE DIRECTLY, POINTED THAT
OUT.
YOU DO HAVE SOME CIRCUMSTANCES
LACK OF INDICATION OF A
STRUGGLE I DON'T KNOW WHAT
ROLE THAT PLAYS IN ALL THIS AS
FAR AS HER CONDITIONP.
>> ASIDE FROM -- AND -- THIS
COURT, SPECIFICALLY SAID THERE
WAS NO MEDICAL EVIDENCE OR OF
PHYSICAL TRAUMA TO THE NECK,
SO, THERE WAS HERE.
AT LEAST.
>> THIS WAS A STRANGE PLACE,
THAT IS A GIVEN --
>> WHAT I GUESS THE STRONGEST
CASE YOU DO THINK IN YOUR
FAVOR!!$$!!!!!!!!
FAVOR?
>> I THINK, I DON'T THINK THIS
COURT IS -- DIRECTLY HAVE TO
DEAL WITH THE ISSUE BUT I
THINK THE REASONING OF CASES
LIKE CARPENTER AND GREEN HELP
SUPPORT.
>> GREEN -- MARTA -- THE GIRL
ON THE TRUCK?
>> I'M NOT CERTAIN, YOUR
HONOR.
>> SPEAK BRIEFLY TO THE
AGGRAVATED FINDINGS OF --
FINDING IS -- PHOTOGRAPH
SHOWED -- SIGNS OF STRUGGLE IT
WAS EVIDENT THE VICTIM
EUROPEANITE INDEED UNDERWEAR A
BLOW TO HER FACE.
>> -- THROES THREE PIECES OF
EVIDENCE THERE WERE THE
DEFENDANTS DNA UNDER THE
FINGERNAIL!!$$!!!!!!!!!!!!!!!!!!
FINGERNAIL, AND -- WAS ASKED,
BY PROSECUTOR THIS AN
INDICATION OF A STRUGGLE OR
VIOLENCE!!$$!!!!!!!!!!!!!!
VIOLENCE, AND HE SAID NO, WE
CAN'T SAY THAT BECAUSE THERE
WOULD BE AN -- IF THIS WERE
THE CASE THAT IS ABSENT HERE,
URINATION IN THE PANTIES WE
DON'T HAVE ANY IDEA WHEN THAT
OCCURRED COULD HAVE OCCURRED,
THAT IS WOMAN WHO HAD ALCOHOL,
SMOKED COCAINE, LOOKS LIKE
COULD HAVE OCCURRED AT SOME
TIME AND THAT MAY BE A REASON
WHY SHE WOULDN'T WEAR THE PANT!!$$!!!!!!
PANTIES LATER, AND THE THIRD
-- OH, THE -- BY THE MEDICAL
EXAMER THAT WAS A VERY
SUPERFICIAL -- AND WE CAN'T
KEK THE PANTIES, SO WEAK.
AND, I'D LIKE TO SAVE MY TIME
FOR REBUTTAL --
>> SURE.
>> GOOD MORNING, MAYBE IT
PLEASE THE COURT LISA MARIE,
FOR THE STATE OF FLORIDA.
WITH THE ATTORNEY GENERAL'S
OFFICE.
>> ADDRESSING SOME OF THE $$
COURT'S CONCERNS AND
QUESTIONING ON MR. ANDERSON.
>> BEFORE YOU DO THAT JUST,
THAT COULD YOU -- THIS -- TO
ME WHAT IS UNUSUAL ABOUT THIS
IS THE DIRECTED VEERED ON THE
JOA -- ON THE SEX BUT EXPLAIN,
HERE IS A MARRIED WOMAN, AND
THEY HAVE -- AND THEY HAD SEX
WHAT IS UNDER THE STATE THEORY
IS SHE, SOMEBODY THAT WAS --
PROSTITUTING HERSELF SHE HAD A
DRUG PROBLEM SO SHE WAS -- AT
NIGHT NOT BECAUSE SHE HAD A
FIGHT WITH HER HUSBAND OR
ANYTHING ELSE, BUT WITH ADDED
KNOWLEDGE TO GO AND -- HAVE
SEX?
>> WELL THE TESTIMONY OF AT
TRIAL WAS THATP -- THE
VICTIM'S NAME, WOULD GO OUT
FROM TIME TO TIME, NOT EVERY
SINGLE NIGHT BUT FROM TIME TO
TIME AND VISIT HER FRIEND --
AND SHE AND LUP-E WOULD PARTY
THEY WOULD DRIVE AND WHAT NOT
AND IF IN THE MORNINGS SHE
WOULD CALL THE HOUSE TO SAY
I'M OVER AT LUP-Es HOUSE OR
HUSBAND WOULD CALL HER AT LUP $$
AYE'S HOUSE THAT WAS PATTERN
SHE WOULD GO OUT AT NIGHT TO
HANG OUT AND DRINK WITH
LICHLTH UP-E.
>> I'M LOOKING AT THIS --
DAUGHTER.
>> -- SAY THAT THAT WAS --
SAYING THAT IS NOT -- AN
EXCUSE OR -- ANYTHING, TO --
HAVING -- IN FACT -- WAS A
PROSTITUTING HERSELF FOR DRUGS!!$$!!!!!!!!
DRUGS.
>> THAT ON $$VICTIM'S STATEMENT.
>> -- BIGHAM$$'S STATEMENT TO
THE POLICE HE SAID SHE WAS
ASKING HIM TO FOR MONEY IN
EXCHANGE FOR SEX, I BELIEVE
THAT IS WHERE THE TRIAL COURT
WAS BASING THAT ON.
P.
>> I ALSO WANTED TO POINT OUT,
IN THE TRIAL COURT GRANTED THE
JOA ON THE KIDNAPPING AND
SEXUAL BATTERY CHARGE, HE DID
NOT MAKE A FINDING THAT IT WAS
CONSENSUAL SEX IN FACT HE MADE
COMMENTS WHEN HE GRANTED THE
JOA, THE JOA WAS BROUGHT UP BY
THE DEFENSE ATTORNEY THE
DEFENSE ATTORNEY ESSENTIALLY
DIDN'T ARGUE IT, EXTENSIVELY
HE JUST SAID I DON'T BELIEVE
THE EVIDENCE HAS SHOWN ANY OF
THE THREE CHARGES IT WAS VERY
BRIEF SORT OF -- ALMOST.
>> WHAT WAS THE BASIS OF THE
TRIAL JUDGE GRANTING A JOA
SECTION BATTERY I I MEAN WE
KNOW THAT SEX TOOK PLACE HE
SAID HE HAD SEEKS WITH HER SO
EVIDENTLY THE TRIAL JUDGE FELT
IT WAS NOT AGAINST HER WILL.
>> NO.
ACTUALLY THE TRIAL JUDGE, MADE
SPECIFIC COMMENTS THAT THERE
WAS NO EVIDENCE THAT SHE WAS
-- ALIVE AT THE TIME OF SEX --
>> ANY EVIDENCE SHE WAS NOT
ALIVE?
>> JUST THE FACT THAT THERE
WAS URINE IN HER PANTS,
TESTIMONY FROM THE --
FORENSICS EXPERTS, ANOTHER
COEXAMINER WAS SHE WAS UPRIGHT
WHEN THE -- OCCURRED.
>> WHAT WAS RATIONALE FOR NOT
-- AND THE KIDNAPPING --
>> SAME THING SHA NO EVIDENCE
THAT SHE WAS ALIVE, IT WAS
VERY ODD.
THERE WAS NO EVIDENCE SHE WAS
ALIVE WHEN SHE WAS DRAGGED
FROM THE STREET.
>> THERE WAS HEAD OF THE SHE
WAS ALIVE DURING THE SEX,
BECAUSE THE DEFENDANT NOTICE
HIS STATEMENT SHE WAS ALIVE?
WELL THERE IS EVIDENCE FROM
THE DEFENDANT.
BUT THERE WAS NO --
>> --
>> I UNDERSTAND BUT I'M --
THIS IS -- TRIAL COURT SAID --
>> SEXUAL -- SEXUAL BATTERY
ESSENTIALLY IS NONCONSENSUAL!!$$!!!!!!!!!!!!!!!!!!!!!!!!
NONCONSENSUAL --
>> RATE -- RIGHT, WITH --
>> YOU SAY THE NUANCE HERE,
THIS IS -- WAS FINDING THAT
THE STATE DIDN'T PROVE SHE WAS
ALIVE WHEN THE SEX OCCURRED.
>> THAT IS WHAT THE TRIAL
JUDGE SAID.
>> DESPITE THE FACT THE
DEFENDANT GAVE A STATEMENT
THAT HE HAD SEX WITH HER --
>> YES THAT IS WHAT THE TRIAL
JUDGE SAID THEN IN CLOSING
ARGUMENTS!!$$!!!!!!!!!!!!!!!!
ARGUMENTS, THERE WAS THIS
ISSUE ABOUT WHETHER OR NOT THE
STATE COULDN'T MENTION THE
WORD "SEXUAL ASSAULT", SEXUAL
BATTERY BUT SEXUAL ASSAULT THE
JUDGE -- I NEVER SAID THEY
COULDN'TING THERE ARE A WASN'T
A SEXUAL ASSAULT, SO --
>> THE JUDGE APPARENTLY
ALLOWED THE STATE TO ARGUE
THAT THERE WAS A SEXUAL
ASSAULT, BUT THEN WOULDN'T
ALLOW THE DEFENDANT TO WITH
REGARD TO CONTRAST TO THAT;;
IS THAT CORRECT.
>> ACTUALLY THE OTHER WAY
AROUND IN THE FIRST ARGUE
DEFENSE WAS ARGUING THE STATE
DIDN'T PROVE SEXUAL BATTERY,
AND THE DEFENSE ACTUALLY USED
THE CHARGING WORD -- TO AND
JUDGE SAID NO, NO, NO, YOU
CAN'T -- OFFER THEY DIDN'T
PROVEN CHARGES ARGUED THEY
DIDN'T PROVE -- THE THEORY OF
THE CASE -- THE STATEMENT, THE
DEFENSE WENT AHEAD AND ARGUED
DIDN'T PROVE THEIR ORANGE
THEORY, AND THE CLOSING
ARGUMENT WAS THAT --
>> WHAT IS -- ORIGINAL O
THEORY.
>> WHAT IS THE STATE THAT
EVIDENCE THAT THIS DEFENDANT
IN-- OCCURRED OR NOT --
>> THERE THE STATE -- THERE --
SUFFICIENT EVIDENCE OF A
STRUGGLE, THAT SHE URINATED
WHILE STANDING UP THROUGH HER
OATH HE CLOTHES THERE WAS --
TWO DIFFERENT EXPERTS -- IF
SHE WERE -- TERRIFIED BEING
KILLED, AND, OR BEING KILLED,
THERE WAS EVIDENCE THAT SHE
HAD DRAWN -- FORENSICALLY,
THERE WAS -- AND HER SHORTS --
>> THE EVIDENCE, THAT THERE
WAS A STRUGGLE, IS NOT
SUFFICIENT, IS IT, TO PROVE
PREMEDITATED MURDER, I IT MADE
BE SECOND DEGREE BUT NOT FIRST
DEGREE.
>> WELL THAT IS TRUE BUT
COMBINE THE EVIDENCE OF THE
STRUGGLE, WITH THE FACT THAT
THIS WAS -- STRANGULATION,
THAT SHE WAS CONSCIOUS, NOT
THERE WAS NO EVIDENCE AT ALL
THE THAT SHE WAS UNCONSCIOUS
WHEN SHE WAS STRANGLED.
THE --
>> WAS THAT --
>> YES.
>> THERE WAS EB --
>> BLOATED HEAD, MISS ANDERSON
SAID SUPERFICIAL THERE WAS
TESTIMONY SHE WOULD SAY NOT
UNCONSCIOUS BECAUSE -- IT WAS
JUST A --
>> -- OVER.
>> WE DON'T KNOW.
>> I CAN'T -- TO ME, THE
JUDGES -- THINKING SEXUAL BART!!$$!!!!!!
BARTRY OCCURS AFTER SHE IS
DEAD, I NEED TO KNOW --
UNDERSTANDING WHAT THE JURY
COULD HAVE POSSIBLY FOUND,
WHAT A REASONABLE INFERENCE IS
OF SEQUENCE OF EVENTS.
AND THAT -- WHAT IS THE JUDGE
-- COULD ARGUE THAT SHE WAS
DRAGGED FROM THE STREET,
DRAGGED ALIVE OR DEAD.
>> THE $$STATE'S FIRST THESIS
AND THIS WAS THAT SHE WAS
DRAGGED FROM THE STREET ALIVE,
AND ATTACKED, AND KILLED.
BUT THEN THE JUDGE MADE THE
JOA AND SAID THERE IS NO
EVIDENCE SHE I WAS LIVE FOR
THE STATE -- BY THAT RULE --
>> I THINK --.
>> I'M HAVING A LOT OF
PROBLEMS, BECAUSE THEN I THINK!!$$!!!!!!!!
THINK, NOTHING MAKES SENSE TO
ME ABOUT -- HOW THIS WOULD BE
A -- WHERE THE THAT
PREMEDITATED KILLING --
USUALLY THERE IS SOMETHING
THAT OCCURS BEFORE THE SET
SOMEBODY OFF AND YOU START TO
INFER WHAT PROBABLY HAPPENED
IN TERMS OF MOTIVE, OR INTENT,
AND I DON'T SEE THIS --
DEFENSE HAVING SAID THEN SHAH
THAT SHE WAS KILLED -- SHE
SEXUALLY BATTERED, KILLED
BEFORE, THEN WE GO AND SAY
THIS WHAT HAPPENED IN THE
WOODS, WHEN THE JUDGE IS
SITTING -- IN TERMS OF RULINGS!!$$!!!!!!!!!!!!
RULINGS --
>> BASICALLY, I DON'T THINK IT
REALLY MATTERS IF SHE WERE
STRANGLED!!$$!!!!!!!!!!!!!!!!
STRANGLED, OR LYING DOWN OR
STRANGLED WHILE SHE WAS
STANDING UP, THERE IS EVIDENCE
THAT SHE STRUGGLED, SHE DREW
BLOOD FROM HIM, THERE WAS A
FIGHT.
AND THEN YOU HAVE A MAN --
>> SAID DIDN'T -- SAY THAT NO,
THAT HAPPENED WHEN SHE WAS HE
WAS ON TOP OF HER, AND SHE
WANTED HIM TO GET ALL -- THAT
IS WHAT HE -- SHE -- SCRATCHED
HIM, HE EXPLAINED IT IN A WAY
THAT WOULD BE AND THIS IS NOT
LIKE WE'VE GOT A LOT OF CASES
WHERE THERE IS EXTENSIVE
WOUNDS OR THERE'S YOU KNOW
BATTERED PEOPLE THAT IS NOT --
WE'VE GOT -- HERE, ONE FINGER!!$$!!!!!!!!!!
FINGERNAIL.
>> SO, ACTUALLY MORE THAN,
THAT IT WAS DNA, SUBSTANTIAL
DNA UNDER ALL FIVE OF HER
FINGERNAILS ON HER RIGHT HAND.
THERE WAS NO -- EFFECT ON THAT
SKIN CELLS UNDER THERE.
SO -- HOWEVER, BIG LAM$$'S
STATEMENT EVEN IF YOU TAKE IT
FACE VALUE, SELF-SERVING IT
WAS SHE SCRATCHED HIM, TO GET
HIM OFF OF HER, WHICH SOUNDS
LIKE A STRUGGLE, EVEN IN HIS
STATEMENT, THEN --
>> I SAY -- THINKS TO ME, THE
POSSIBLY!!$$!!!!!!!!!!!!!!
POSSIBLY, MURDER CASE --
DECIDING IN -- FELONY MURDER
CASE, BECAUSE, THE KILLING
BECAUSE OF THIS AD SHE IS HE
IS ON TOP AND HE IS SHE IS
STRUGGLING!!$$!!!!!!!!!!!!!!!!!!
STRUGGLING, THAT IS THE --
OCCURRING DURING A SEXUAL
BATTERY.
>> BUT YOU ALSO HAVE SIGNS OF
A STRUGGLE YOU HAVE MANUEL
STRANGULATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
STRANGULATION.
>> YOU SAY YOU ALSO HAVE SIGNS
OF STRUGGLE WHAT SIGNS?
>> WELL, ON THE FACE.
>> WHAT WAS THAT.
>> SHE HAD A BLOW TO HER
TEMPLE AREA, WHICH DREW BLOOD
AND BRUISE.
>> THIS -- WHAT WAS IS A SAID
THAT WAS CAUSED BY A FAVORITE?
>> THEY COULD NOT SAY WHAT IT
WAS CAUSED BY.
>> THE $$STATE'S WITNESSES DID
COUNT, IN OTHER WORDS, ALL OF
THE WITNESSES, PRESENTED BY
THE STATEP THAT TALKED ABOUT
MANY THE MARK ON THE FACE, OR
UNDER THE THEY SKOUNLTED THAT,
DISCOUNTED THAT AS NOT BEING
EVIDENCE OF A STRUGGLE OR A
FIGHT, OR WHATEVER DID THEY
NOT?
IN OTHER WORDS THAT WAS THE $$
STATE'S OWN PROOF WHEREAS THAT
THE FACT-FINDER COULD NOT RELY
ON THOSE THINGS.
>> WELL, THE --
>> IS THAT RIGHT?
>> WELL, SORT OF, THE EXPERT
SAYS THAT THE FWHOUND AND OF
ITSELF, HE COULD NOT SAY WITH
CERTAINITY THAT IT WAS SIGNS
OF A STRUGGLE, BECAUSE THAT
TYPE OF WOUND COULD ALSO OCCUR
FOR EXAMPLE IF SHE WERE HIT
WITH A TREE BRANCH SO HE COULD
NOT SAY CONCLUSIVELY IT WAS
STRUGGLE OS IT WASN'T
STRUGGLEL THAT WAS HIS
RESPONSE, HOWEVER, THAT COME
BIND WITH HER SCRATCHING
BIGHAM AMEND THEN MULTIPLE
MANUALLY STRANGLING HER, THAT
WAS EXPERT TESTIMONI, THAT SHE
WAS CONSCIOUS DURING THE
STRANGULATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
STRANGULATION, AND SHE WOULD
NOT HAVE LOST CONSCIOUSNESS
FOR UP TO TWO MINUTES, BECAUSE
SHE WOULD BE ALIVE, AND
LOOKING AT THIS MAN, WHILE HE
WAS STRANGLING HER, SHE WAS --
LOSE CONSCIOUS AFTER MAYBE TWO
MINUTES AND THEN TO KILL HER.
>> AFTER MAYBE TWO MINUTES OR
DID THEY SAY A MATTER OF
SECONDS OF THE TWO MINUTES.
>> THEY SAID 15 SECONDS TO TWO
MINUTES, TO KILL HER AFTER SHE
LOSES CONSHUSNESS WOULD TAKE
ADDITIONAL NUMBERS OF MINUTES
THAT WAS EXPERT TESTIMONY SO
YOU HAVE A SITUATION IF
SOMEONE IS STRANGLING A WOMAN,
SHE LOSES CONSCIOUSNESS, IF HE
DOES NOT MEAN TO KILL HER -- O
MIKE, GOODNESS SHE LOST
CONSCIOUS!!$$!!!!!!!!!!!!!!!!
CONSCIOUSNESS.
>> THE EXPERT ASKED ABOUT THE
EFFECTS OF THE OR THE QUANTIFY
THE DRUGS, OR ALCOHOL, OR
OTHER THINGS, THAT WERE --
>> THERE WAS NO EVIDENCE OTHER
THAN BIGHAM$$'S STATEMENT DURING
THE DPULT AND PENALTY PHASE
THAT SHE INGESTED DRUGS.
THE TO BEINGS COL --
>> THE MEDICAL EXAMINER DID
NOT FIND ANY SIGNS OF ALCOHOL
OR DRUGS?
>> NO -- WHETHER OR NOT HE
DID, WE DON'T KNOW, BECAUSE HE
DID NOT TESTIFY TO IT.
THE TOXICOLOGY REPORT WAS
BROUGHT IN BY THE DEFENSE
DURING THE SPENCER HEARING
SHOWING THAT SHE HAD COCAINE,
IN HER SYSTEM AND ALCOHOL I
BELIEVE.!!$$!!!!!!!!!!!!!!
BELIEVE.08, THE EVIDENCE AT
THE TRIAL ITSELF WAS FROM HER
HUSBAND THAT SHE DRANK SIX
BEERAROUND 8:30 AT NIGHT
KILLING HAPPENED MAYBE 5 TO 6
HOURS, LATER.
THE EVIDENCE, AT TRIAL, THAT
SHE USED DRUGS CAME FROM
BIGHAM SAYING SHE TOOK A HIT
OFF A -- PIPE.
>> WHAT DOES THE JUDGE ORDER
MEAN WHEN IT SAYS, THAT THE
DEFENDANT, THAT ADMITTED
ANOTHER EXHIBIT TO BEINGSOLOGY
REPORT, ON THE VICTIM, SHOWING
SHE HAD COCAINE PRESENT IN HER
BLOOD, ENOUGH ALCOHOL TO MAKE
HER DUI?
>> THAT WAS THE TOXICOLOGY
REPORT THE DEFENSE GAVE TO THE
COURT DURING THE SPENCER
HEARING.
AND IT DID SHOW THAT SHE HAD.!!$$!!!!!!
HAD.08, FOR DUI AND COCAINE
BUT EVEN AT THE SPENCER
HEARING THERE WAS NO EXPERT
TESTIMONY, TO EXPLAIN, WHAT
THESE -- LEVELS OF COCAINE
MEAN, AND FOR MR. ANDERSON AND
I NEITHER ONE OF US CAN STAND
UP HERE AND SAY O SHE WAS
REALLY HIGH OR JUST A LITTLE
BIT, THERE IS JUST NO
EVIDENCE.
>> -- BEING WITH ANOTHER
FRIEND HER PAT UNDER PENALTY
OF PERJURY THE PAST -- PATTERN
IN THE PAST WAS THERE ANYBODY
OTHER THAN HER FAMILY, THAT
SAW HER AFTER SHE LOT OF THE
HOUSE?
>> NO.
>> SO THAT WAS A BLANK IN
TERMS OF ANY --
>> THAT IS CORRECT.
>> LET ME ASK YOU SOMETHING
THAT IS CONCERNING ME.
YOU'VE USED THE STRANGULATION
AS BEING THE EVIDENCE OF
PREMEDITATION THE
STRANGULATION THEN ALSO
BECOMES THE BASIS FOR -- MY
CONCERN IS THAT AND I DON'T
KNOW IF WE HAVE EVER HELD THAT
-- SINGLE SITUATION, WHERE --
HAVE A 94 -- THEY MAY NOT --
NOT HAVE STARTED OUT WITH
THEYED WHERE THEY ARE GOING TO
KILL SOMEBODY BUT NOW BECAUSE
THE STRANGULATION, THE
STANDING BY ITSELF,
APPROXIMATE HE HAVE WE EVER
TELL THATTED THAT IS THEN
GOING SUPPLY WITHOUT ANY OTHER
EVIDENCE OF ANY OTHER EVIDENCE
BOTH EE PREMEDITATION, AS WELL
AS THE AGGRAVATING
CIRCUMSTANCES OF HAC, THAT
STRANGULATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
STRANGULATION, MURDERS WOULD
ESSENTIALLY BE, ELEVATED TO --
DEATH ELIGIBLE, EVEN THOUGH,
SHE -- SHOOTING MRDZ OR --
MURDERS WOULD NOT BE?
>> YES IN.
BLACK -- IT IS A 2000 CASE
FROM THIS COURT, IT WAS A
STRANGULATION MURDER THERE
WERE NO OTHER AGGRAVATE OWING.
>> BUT WAS HAC THE WAS IT A
FELONY MURDER, WAS THERE OTHER
EVIDENCE OF PREMEDITATION IN
BLACKWOOD!!$$!!!!!!!!!!!!!!!!
BLACKWOOD?
>> IT WAS A PREMED INDICATED
MURDER I WAS WAS NOT FELONY
MURDER.
>> BUT STILL WAS THERE OTHER
EVIDENCE SUGGEST STRANGULATION
OR PREMEDITATION AN ISSUE IN
BLACK!!$$!!!!!!!!
BLACKWOOD?
I DON'T --
>> YES, BOTH PREMEDITATION AND
HAC WERE ISSUES IN BLACKWOOD
IT WAS A SITUATION, WHERE A
HUSBAND --
>> I KNOW THE CASE I JUST YOU
DIDN'T THINK WE WERE IN THAT
CASE AN ISSUE -- EVIDENCE OF
PREMEDITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
PREMEDITATION, WAS SOMETHING
THAT WAS OF CONCERN.
>> THE COURT DIDN'T -- FULL
DISCUSSION ON THE PREMED!!$$!!!!!!!!!!
PREMEDICATION BASED ON
CIRCUMSTANTIAL EVIDENCE.
>> IT WAS ONLY THE
CIRCUMSTANTIAL EVIDENCE IN
THAT CASE WAS ONLY THAT THERE
WAS STRANGULATION?
>> YES.
>> LET ME ASK YOU THIS.
-- CERTAIN -- BACK FLOW
ANDERSON!!$$!!!!!!!!!!!!!!
ANDERSON'S YOU KNOW THIS PART
OF THE ORDER, WHAT EVIDENCE
OTHER THAN THE SEMEN, THERE
THAT THE STATE RELIES UPON,
THAT THIS DEFENDANT WAS THE
ONE THAT DID THE STRANGLING OF
THIS DEFENDANT -- WAS THERE
ANY -- EVIDENCE, HAIR STRANDS,
OR FINGERPRINTS ON THE NECK,
OR WAS THERE ANY EVIDENCE THAT
-- TO CLOSE UP AND PUT HIM ON
TOP OF HER?
>> WELL THE EVIDENCE WAS THAT
ON THE CLOTHES THEMSELVES,
WERE FECAL MATTER AND SEMEN
MOST OF THE SEMEN ON THE
CLOTHES BELONGED TO BIGHAM
THERE, WERE TRACE AMOUNTS
BELONG TO GO --AKER, NO OTHER
SEMEN ON THE CLOTHES BELONGED
TO ANY MYSTERIOUS THIRD PERSON
JUST THOSE TWO PEOPLE MOST OF
IT BEING FROM BIGHAM.
>> UNDER THE SHORTS, WHICH
WERE PLACED UPON THE CHEST,
AND -- FACE AREA, WERE FIVE
BODY HAIRS FROM BIGHAM, ONE OF
THE HAIRS HAD A -- ON IT WHICH
THEY ALLOWED FORENSIC EVIDENCE
TO DNA ANALYSIS, THE TESTIMONY
WAS THAT THAT HAIR BELONGED TO
BIGHAM!!$$!!!!!!!!!!
BIGHAM, BASED ON DNA THE
TESTIMONY ALSO SAID ALL FIVE
HAIRS WERE SIMILAR, ANDP HE O
PINED THEY CAME FROM THE SAME
PERSON HOWEVER THE OTHER FOUR
HARRIS DIDN'T HAVE ON THEM SO
THEY CONTINUE DO DNA.
>> WERE THESE HARRIS ON TOP OF
THE CLOTHING.
>> NO.
THEY WERE ON HER SHOULDER AND
CHEST AREA, UNDER THE SHORTS,
THERE WEREN'T STUCK TO ANY
FLUID OR ANYTHING.
INDICATING THAT IF SHE HAD
STOOD UP, THEY WOULD HAVE
FALLEN OFF.
NOR WERE THEY STRUCK TO THE
CLOTH THEMSELVES BECAUSE WHEN
THE CRIME SCENE PERSON FROM
THE POLICE DEPARTMENT WAS
THERE, HE SAW ONE OF THE HAIR!!$$!!!!!!
HAIRS, STICKING OUT -- A
SIGNIFICANT HAIR, UNDER THE
CLOTHING!!$$!!!!!!!!!!!!!!
CLOTHING, AND EP TOOK
PHOTOGRAPHS OF IT, TO
MEMORIALIZE IT IN ITS POSITION
WHICH ALL GOES TO INDICATE
THAT BIGHAM WAS THE LAST
PERSON WITH HER BEFORE SHE
DIED, AT LEAST THE LAST
PERSON, THAT WITH HER WHEN HER
BODY WAS --
>> HOW LONG AFTER HER DEATH
WAS HER BODY FOUND?
>> HER BODY WAS FOUND AT 7:30
IN THE MORNING, BY MR. LUS WHO
IS A CIVILIAN AND THE TODAY A
WAY INTERESTINGLY ENOUGH I
WANTED TO COMMENT ON THE DRAG
MARK THE WAY HE FOUND THE
BODY, WAS HE WENT INTO THE
WOODS, TO DO IT WAS A -- USE
OF FACILITIES IF YOU EXCUSE
THE EXPRESSION AND HE SAW
SIGNIFICANT DRAG MARKS HE USED
THOSE WORDS EVERY DAY, HE IS
-- NOT SEEN THOSE DRAG MARKS
BEFORE, HE FOLLOWS THE DRAG
MARKS DIRECTLY TO HER BODY.
AND HE THAT IS THE DRAG MARKS
-- GOT HIS ATTENTION, THE
FIRST PLACE, HE SAW BROKEN
BRANCHES BRAN CHZ PUSHED OUT
OF THE WAY WHICH HE HADN'T
SEEN BEFORE HE FOLLOWED IT AND
SAW HER NUDE BODY.
>> DID THE MEDICAL EXAMINER
TESTIFY AS TO WHETHER OR NOT,
SHE WAS ALIVE, WHEN THAT --
TOOK PLACE OR THAT OR
DETESTIFY AT ALL ABOUT THAT?
>> THERE WAS NO TESTIMONY
ABOUT WHEN OR NOT SHE WAS
ALIVE DURING THAT DRAGGING,
AND NO INDICATION OF IF SHE
WAS DRAGGED WITH JUST HER TOES
ON THE GROUND WITH HER HEAD ON
THE GROUND THERE, WAS NOTHING.
THERE WAS DIRT ON HER FEET.
>> HE BOO REFERRING TO BATTERY
KIDNAPPING COUNTS I'M CURIOUS
YOU HAVEN'T -- YOU HAVEN'T
CROSS APPEAL THOSE COUNTS
WHICH I GUESS IF YOU DID CROSS
APPEAL WOULD HAVE FOUND THE
COURT HADN'T OR ERRONEOUSLY,
GRANTED JOA ON THAT, BUT WE
FIND THERE IS NO PROCEED --
PREMEDITATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
PREMEDITATION, I GUESS WE
COULD REMAND FOR RETRAIL OR
COULDN'T WE AS TO FELONY
MURDER, BUT YOU HAVEN'T CROSS
APPEALED THAT WE WOULDN'T BE
ABLE TO DO THAT.
>>!!$$!!
>>.
>> WHAT DO YOU THINK THE --
STATUTED!!$$!!!!!!!!!!!!!!
STATUTED'S -- $$STATE'S POSITION
ON THE CLOSEST CASE THAT WE
UPHELD PREMEDITATION UNDER
THESE CIRCUMSTANCES?
>> I BELIEVE -- LOOKWOOD IS
VERY CLOSE.
>> OTHER THAN BLACKWOOD BLACK!!$$!!!!!!!!
BLACKWOOD WAS A LITTLE BIT
DIFFERENT THERE WAS A DEMOCRAT
EVIDENT!!$$!!!!!!!!!!!!
EVIDENTIC, SITUATION.
>> YES, THERE WAS AN
INDICATION, IN HOLTON THERE,
WAS A STRANG LAIGS, SCRATCH
MARKS I BELIEVE SIMILAR TO
THIS SITUATION, AND,
INDICATING THERE WERE SIGNS OF
A STRUGGLE.
THE SIGNS OF THE STRUGGLE I
BELIEVE MAY HAVE BEEN SOME
DEFENSIVE WOUNDS THERE WHICH
IS NOT THE CASE HERE, BUT, IN
HOLTON THE COURT FRIEND
MEDICATION.
>> BUT THERE WAS NO DOUBT THE
IDENTITY OF THE DEFENDANT OR
THE -- THE STRANGLER, IN ANY
OF THOSE CASES, WAS THERE?
NO, I DON'T BELIEVE SOVENLT
BUT -- AS YOU KNOW I DON'T
BELIEVE THERE IS A DOUBT IN
THIS CASE --
>> I UNDERSTAND, I'M JUST
TRYING TO --
>> THE OTHER COUPLE THINGS IP
WANTED TO POINT OUT IS THE --
CAN MAKE NO COMMENTS ABOUT THE
POSITIONING OF THE CONDOM,
AND, AGAIN, I BELIEVE THAT
THAT IS EVIDENCE, INDICATING
THAT BIGHAM WAS THE LAST
PERSON WITH HER, AND SHE DIED
IMMEDIATELY SURROUNDING THE
SEX ACTS THE POSITION OF THE
CONDOM, THE MEDICAL EXAMINER
WAS QUERIED DURING TESTIMONY
OF ABOUT WHEN OR NOT GASSES
COULD PUSH OUT THE POSITION OF
THE CONDOM, IF IT HAD BEEN
STUCK UP INSIDE OF HER BODY.
HE SAID, WELL, WHAT HE SAID IS
TECHNICALLY IT IS POSSIBLE, IF
THE BODY HAD GENE COMPOSING,
HOWEVER IN THIS SITUATION, IT
IS HIGHLY UNLIKELY BECAUSE
THIS BODY WAS NOT DECOMPOSING
IT WAS A FRESH BODY.
AND I REFER THE COURT TO THE
RECORD TRANSCRIPT NUMBER 1253,
WHERE THE STATE IS ASKING THE
MEDICAL EXAMINER SAYING, IF
YOU DIE IMMEDIATELY YOU DON'T
GET GASSES, IN THERE.
AND HE SAYS ESSENTIALLY THE
MOST LIKELY SCENARIO IN THIS
SITUATION, WOULD BE THAT A
CONDOM, SOMEONE WAS PULLING
OUT AND A CONDOM CAME OFF, AND
THAT IS WHAT THE MEDICAL
EXAMINER TESTIFIED TO, FINALLY
IN TERMS OF WHETHER OR NOT
THERE WAS ANY EVIDENCE OF A
THIRD PERSON HAVING SEX WITH
THIS WOMAN, THAT NIGHT, THERE
IS NONE, AND THERE WAS NONE AT
TRIAL.
THE EVIDENCE SHOWED THAT THE
ONLY SEMEN INSIDE OF HER
VAGINAL CAVITY WAS -- FROM
BIGHAM THERE, WAS NO EVIDENCE
OF AKER SEMEN INSIDE THE
VAGINAL CAVITY BASED ON THE
DNA ANALYSIS.
>> DID THAT COME OUT -- IN
THE --
>> INSIDE THE CONDOM WAS ONLY
BIGHAM!!$$!!!!!!!!!!
BIGHAM.
THERE WAS NO SEMEN INSIDE HER
ANAL CAVITY, AT ALL, THE ONLY
EVIDENCE OF BIGMAN IN HER ANL
CAVITY CAME FROM THE -- TIP
OUTSIDE TIP OF THE CONDOM,
WHERE THERE WERE TRACE AMOUNTS
FROM AKER ALSO SOME FROM
BIGHAM THIS WAS ON THE OUTSIDE
TIP, AND --
>> EXFORENSIC EXPERT TESTIFIED
THIS WAS CONSISTENT WITH
BIGHAM HAVING SEX WITH THIS
WOMAN AFTER SHE HAD HAD SEX
WITH HER HUSBAND.
THERE WAS NO ONE $$ELSE'S DNA
THERE
>> YOU HEARD, YOUR OPPONENT,
THERE REFERRAL READ A PART OF
THE TESTIMONY -- THAT ALLUDED
TO A THIRD PARTY.
>> I -- I DON'T HAVE THAT
TESTIMONY IN FRONT OF ME, BUT
I BELIEVE THAT THAT IS A
MISREADING OF THE TRIAL
TESTIMONY.
>> I TAKE IT THIS WAS NOT A
FOCUS OF ANY MOTIONS OR
ARGUMENTS AT THE TRIAL.
>> IT WAS ABSOLUTELY NOT AND
THERE WAS NO DISCUSSION DURING
THE TRIAL DURING CLOSING
ARGUMENTS, OR ANYTHING ABOUT A
THIRD PERSON.
THE $$DEFENDANT'S THEORY WAS
THAT OSCAR MAY HAVE COME BACK
AFTER SHE HAD HAD SEX WITH
BIGHAM AND THEN, HAD SEX WITH
HER AGAIN AND KILLED HER.
BUT, AGAIN, THE FORENSIC
EVIDENCE DOES NOT SUPPORT THAT
THEORY.!!$$!!!!!!!!!!!!
.
>> WOULD YOU TALK ABOUT THE --
ISSUE?
.
>> NO -- I -- IN TERMS OF
JUROR NICE, THE OBJECTION THAT
THE DEFENSE ATTORNEY RAISED AT
TRIAL WAS A CAUSE CHALLENGE
AND THIS WAS BROUGHT UP WHEN
MR. NICE -- SAID WAIT A MINUTE!!$$!!!!!!!!!!
MINUTE, I KNOW DETECTIVE PAUL,
AND THE JUDGE ALLOWED -- VOIR
DIRE THE DEFENSE ATTORNEY DID
EXTENSIVE VOIR DIRE
APPROXIMATELY 5 TO 6 PAGES$$'
WORTH, QUESTIONING JUROR NICE
WHETHER HE COULD BE FAIR
IMPARTIAL WHETHER OR NOT HE
HAD CONVERSATIONS OF SUBSTANCE
WITH MR. -- AND SO ON AND SO
FORTH, THE JUROR SAID HE COULD
BE FAIR HE DID NOT HAVE A
RELATIONSHIP WITH THIS
DETECTIVE WAS STILL WILLING TO
SERVE,
>> AND HOW WOULD YOU DESCRIBE
THE RELATIONSHIP, WHAT IS A
FAIR DESCRIPTION OF THE
RELATIONSHIP THAT THIS JUROR
WITH THE WITNESS?
>> WELL, WHAT THE JUROR SAID
WAS THAT AS MR. ANDERSON SAID,
HE WORKED AT A BAR -- AND
DETECTIVE HALL WOULD COME IN
THREE OR FOUR TIMES A MONTH.
>> HE WAS THIS -- DESCRIPTION!!$$!!!!!!!!!!!!!!!!!!!!
DESCRIPTION --
>> YES, BUT, I WANT TO POINT
OCCUPANT IT WAS 5 TO 7 YEARS
BEFORE THE TRIAL.
IT WAS A SUBSTANTIAL PERIOD OF
TIME, BEFORE THE TRIAL IT WAS
BAR WHICH A LOT OF POLICE
OFFICERS FREQUENTED THEY NEVER
DISCUSSED HIS WORK, PLANNED
NICE SPECIFICLY SAID I DIDN'T
KNOW HIS NAME I DIDN'T
REMEMBER HIS NAME, BUT I
RECOGNIZEDED HIS FACE WHEN HE
STARTED TESTIFYING.
>> AND -- AS I UNDERSTAND IT
THAT SOME TYPE OF --
>> SOMETHING LIKE THAT.
>> YES.
>> DOES THAT COME AFTER --
QUESTION, HAVE I DIER
INITIALLY HE WAS ASKED THE
QUESTION WHAT KIND OF WORK YOU
DO WAS THAT DISCUSSED.
>> YES IN FACT HIS WORK CAME
OUT AND I ALSO WANTED TO POINT
OUT VERY INTERESTING, DURING
ADMISSION OF VOIR DIRE THEY
DID JURY QUESTIONNAIRES ON THE
JURY QUESTIONNAIRE THIS
PARTICULAR JUROR MR. NICE
WROTE DOWN ON THE QUESTION OF!!$$!!
OFFOI ARE YOU RELATED TO OR
FRIENDS WITH ANY POLICE SNFRS"
MR. NICE WROTE YES.
AND THIS WAS DURING THE
INITIALLY VOIR DIRE ON THE
JURY QUESTIONING.
THE DEFENSE ATTORNEY NOR THE
STATE, PURSUED THAT TO ASK HIM
OKAY WHAT IS -- WHO ARE YOUR
FRIENDS OR HOW -- TALK ABOUT
WORK OR ANYTHING, NO
QUESTIONING WAS DONE.
ADDITIONALLY IN TERMS OF THE
-- MATERIALITY TEST, THE
DEFENSE HAD THE INFORMATION,
THAT THIS JUROR KNEW POLICE
OFFICERS!!$$!!!!!!!!!!!!!!
OFFICERS, WAS FRIENDS WITH
POLICE OFFICERS, DURING --
DURING INITIAL VOIR DIRE,
WHICH ISES IN MORE THAN WHAT
CAME OUT DURING TRIAL.
>> THERE IS NO DISPUTE, THAT
NICE SIMPLY DID NOT PUT
TOGETHER A FACE WITH THE NAME,
UNTIL THE OFFICER TESTIFIED AT
THE TRIAL?
>> THAT IS CORRECT, AS WELL.
AND IN FACT, DURING THE SECOND
VOIR DIRE DURING THE TRIAL
WHEN THE DEFENSE ATTORNEY WAS
ASKING HIM, LOOK I UNDERSTAND,
IT WAS LONG TIME AGO, AND WE
READ THOSE NAMES VERY QUICKLY,
IT IS UNDERSTAND BELIEVE YOU
WOULDN'T HAVE, HEARD THE NAME
AND ROINGD IT.
SO THERE IS NO INDICATION FROM
THE DEFENSE DURING THE TRIAL,
BASED ON THE RECORD, THAT
THERE WAS ANY SORT OF WILL
FULL HIDING.
>> WHAT WE NEED TO A JUDGE
COULD AT THAT POINT HAVE
EXERCISE DZ HIS OR HERS
DISCRETION AND
CONSTITUTIONALITY$$!!!!IED ALTERNATE
JUROR THEY COULD HAVE DONE
THAT; CORRECT?
>> I SUPPOSE BUT IT WOULDN'T
HAVE BEEN BASED ON A CAUSE
CHALLENGE, BECAUSE UNDER THE
STATUTE DELINEATING CAUSE THIS
JUROR WOULD NOT WAS NOT
EXCUSABLE FOR CAUSE SO THE
JUDGE WAS FOLLOWING THE LAW IN
KEEPING HIM ON THE JURY, BASED
ON THE $$JUROR'S ANSWERS.
>> IS NOT THIS IS THE VERY
PURPOSE OF HAVING ALTERNATES?
THAT IS THAT SOMETHING
UNEXPECTED UNEXPECTED COMES UP
THAT IT ALLOWS YOU IT HAS A
SAFEGUARD!!$$!!!!!!!!!!!!!!!!
SAFEGUARD, HERE WHERE THERE
ARE TWO ALTERNATES ACTUALLY?
>> YES, YES.
>> SO DID THOSE ALTERNATES,
THEY MAY -- NEVER DID SERVE;
IS THAT CORRECT?
>> NO THAT IS TRUE THEY DID
NOT SERVE.
>> AND BETTER PART OF VALOR
FOR THE TRIAL JUDGE, TO SAY
WELL, JUST TO BE SAFE HERE,
LET'S JUST HAVE THE ALTERNATES
SERVE?
>> WELL, PERHAPS, BUT WHAT THE
JUDGE DID WAS IN KEEPING WITH
THE LAW.
AND THAT IS WHAT WE HAVE TO
LOCK AT.
HE DENIED A CAUSE CHALLENGE
BECAUSE THIS JUROR WAS NOT
EXCUSABLE BASED ON CAUSE.
I ALSO WANTED TO POINT OUT
THAT IN THE DELLA ROSA
SITUATION, THAT I BELIEVE,
ADDRESSES A SITUATION, WHERE
SOMEONE DOESN'T HAVE A -- IN
THIS CASE CAME UP DURING
TRIAL, THE DEFENSE HAD AN
OPPORTUNITY TO WALK -- VOIR
DIRE AND THERE WAS --
>> GET BACK TO WHERE THE
OTHERS THAT SAID THERE IS NO
OBLIGATION, THE QUESTION --
COULD HAVE EXERCISE DISCRETION
IS TO DO IT BUT THE ONLY WAIP
IT WOULD BE REVERSIBLE ERROR
NOT TO DO IT IS IF JUROR THAT
THE POINT ABOUTE WOULD BE --
TO CAUSE IS THAT YOUR
POSITION.
>> YES AND ALSO DELA$$!!-ROSA A
CIVIL CASE THIS CRIMINAL THIS
COURT NAIFR APPLIED DL# L-ROOS!!$$!!!!!!!!!!
L-ROOS.
>> THE JUROR DIDN'T --
ANYTHING?
I MEAN.
>> THE THEORY DELLA ROSA
TRYING TO -- THEORY, CIVIL OR
CRIMINAL, YOU ARE THAT IS WHAT!!$$!!!!!!
WHAT --
>> INSURE.
>> THANK YOU VERY MUCH.
>> THANK YOU THERE ARE A
COUPLE MINUTES FOR REBUTTAL.
>> ALL RIGHT, JUST TO CLARIFY,
I THINK THAT MOTION FOR --
ACQUITTAL ON SEXUAL BATTERY
WAS GRANTED, BECAUSE MEDICAL
EXAMINER!!$$!!!!!!!!!!!!!!
EXAMINER'S TESTIMONY, I THINK
MADE -- THAT THERE WAS NO
EVIDENCE, OF ANY FORCED SEX
AND THE ONLY EVIDENCE WE HAVE
THAT THERE IS CONSENSUAL SEX.
>> I THINK THAT IS THIS IS
THIS BY THE TIME WE -- WE
PROBABLY HAVE AT LEFT AN
AGREEMENT ON WHAT THE FACTS
ARE, AND YOU ARE SAYING THAT
THIS DOESN'T APPEAR ANYWHERE
IN THE RECORD BUT THE JUDGE
WAS CONCERNED AND THE REASON
OF JOA WAS THE STATE COULD NOT
PROVE THAT IT WAS A LIVE
PERSON O YOU ARE SAYING THAT
IS NOT IT THIS --
>> I THINK THAT THE STATE
DIDN'T PROVE NONCONSENSUAL
SEX, THAT IS WHY HE DID IT
BASED ON THE MEDICAL EXAM --
>> YOUR OPPOSITION STATED IN
THE RECORD OTHERWISE.
>> I THINK HE SAID AS FAR AS
EVIDENCE OF A STRUGGLE, AND
THE DRAG MARKS AND STUFF, HE
SAID THERE IS NO EVIDENCE SHE
WAS ALIVE WHEN THAT OCCURRED
SO KIDNAPPING I THINK THAT IS
PRIMARILY IN RELATION TO THAT.
AS FAR AS THE DEFENSE BLOOD I
JUST WANT TO CLARIFY, IT HAS
BEEN ALLEGED THAT -- WAS
STRUGGLING -- JUST WANT YOU TO
LOOK AT PAGE -- 1186, WHERE
THE EXPERT EXPLAINS THE MARK
SO MINUTE WE CAN'T REALLY MAKE
INFERENCES FROM IT.
AND THE STATE TRIED TO GET HIM
TO DO SO.
AND.
>> HOW ABOUT SAYS THAT HE MADE
A LARGE POINT BEFORE DURING
YOUR PRESENTATION, THAT THERE
IS DNA EVIDENCE FROM A THIRD
PARTY THAT THAT IS A FEATURE
OF THIS TRIAL AND YOU ARE --
>> THAT IS AT PAGE, I WILL
READ THE PAGE VOLUME 14, PAGE
1127, AND THEN --
>> ATTORNEY MADE THE POINT
DURING THE TRIAL THIS THE
PERSON THERE, AND THEN --
OPPOSE -- CLOSING ARGUMENT --
>> DIDN'T SPECIFICALLY REFER
TO THIS BUT HIS THEORY OF THE
DEFENSE IS EVIDENCE DIDN'T
LINK THE DEFENDANT TO THIS
KILLING.
THERE ARE OTHER PEOPLE NOT
JUST THE HUSBAND, REFERRED TO
THREE MEN IN A JEEP THE STATE
DIDN'TP -- PROPERLY AND THE
HUSBAND THEY JUST SAY IT WAS
SOMEONE ELSE, THEY DIDN'T
NECESSARILY KNOW EXACTLY WHO
IT WAS.
THEY DID -- POSSIBILITY -- AND
ONE THING IF YOU LOOK AT THE $$
DEFENDANT'S STATEMENT THAT THE
STATEMENTS USED IN THE
EVIDENCE IN THIS CASE, HE
TALKS APPROXIMATE THE VICTIM
TRIPPING!!$$!!!!!!!!!!!!!!
TRIPPING, NOT KNOWING --
SENTENCED WHEN HE IS WITH HER
AFTER SHE HAD GOTTEN THE
COCAINE.
EVEN TALKED ABOUT HER SMOKING
THE COCAINE.
>> IS THAT -- IS THAT COULD
SFLAIN THE BLOW -- EXPLAIN THE
BLOW --
>> JUST A SUPERFICIAL SCRATCH
THE MEDICAL EXAMINER --
MEDICAL EXAMINER SAID WELL SHE
COULD HAVE BEEN AT THE WOODS
JUST BRUSHED UP AGAINST A TREE
BRANCH IT IS NOT A BLOW.
NO ONE CHARACTERIZES IT AS
THAT AS FAR AS THE WITNESSES,
THE ONE SINGLE AREA.
>> IDENTIFIED THE DEFENDANT.
>> HE AGAIN, THE STATE WINS
SAID THAT COULD HAVE COME
WITTES INNES SAID COULD HAVE
COME FROM EXPOSING WHEN PLACED
ON TOP OF THE VICTIM THEY
DON'T IT JUST SHOWS HE WAS
WITH HER THAT NIGHT DOESN'T
SHOW THE VIOLENCE.
AND THE DRAGGING, IT IS THERE
IS NO EVIDENCE OF ANY RASH ON
THE SKIN IN ANY WAY, THAT
CLOTHING IS NOT -- WORN OR
STRETCHED IN ANY WAY.
>> THE STATE INCORRECT ON THE
TEST OF THE WITNESS TO MADE
DISCOVERY THAT FOLLOWED THE
DRAG MARKS THAT I LED DIRECTLY
TO AS A WHEEL WOULD BEING
ORGANIZE WHEEL MARK.
>> HE SAID DRAG MARKS THEY
WERE IN THAT AREA THERE WAS
ALSO ONE OF PATH WHERE PEOPLE
FREQUENTED IT QUITE OFTEN.
>> SO YOUR VIEW OF THE RECORD
IS THAT HE DID NOT SAY THAT HE
FOLLOWED THE DRAG MARKS
DIRECTLY --
>> I THINK THAT IS A --
INTERPRETATION OF THE
TESTIMONY --
>> WHAT YOU ARE SAYING IS THAT!!$$!!!!!!
THAT -- THE DRAGGING, THOUGH,
EXPECT SO SEE SOMETHING, ON
HER BODY.
>> EVIDENCE IN THE CLOTHING OR
BODY, AND HIS -- THERE IS SOME
DIRT ON THE CLOTHES BUT THAT
IS NOT THERE HAS TO BE MORE
ANDP IF DRAGGING YOU ARE GOING
TO GET, A TEARS OF DISTORTION!!$$!!!!!!!!!!!!!!!!!!
DISTORTION --
>> -- THE ONLY THING THAT THEY
ARE DRAGGING IS FEET -- WELL.
>> THERE WERE NO RASHES ON THE
FEET.
>> WHAT WAS THERE WAS SOME
DIRT, THAT --
>> WHAT WAS THE -- CERT --
>> JUST -- BY DIRT ALONG THAT
AREA!!$$!!!!!!
AREA, PINE NEEDLES AND
BRANCHES!!$$!!!!!!!!!!!!!!
BRANCHES -- THEY WERE BE
DRAGGING ALL THE BRANCH SNEEZE
WITH OUR ASSISTANCE OF YOU
EXHAUSTED YOUR TIME WE THANK
YOU BOTH OF YOU FOR YOUR
PRESENTATIONS AND WE WILL TAKE
THESE UNDER ADVISEMENTS THANK
YOU VERY MUCH, COURT WILL
STAND IN RECESS UNTIL 9:00
TOMORROW MORNING.
>> PLEASE RISE.!!$$!!!!!!!!!!!!!!!!!!!!!!!!,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,