GOOD MORNING, JUSTICES. I AM REPRESEN TING MR . BRANCH IN A 3.850. FIRST I WOULD LI KE TO CORRECT THE RECORD ON PAGE 6OF THE INITIAL APPELLATE BRIEF.

CHIEF JUSTICE: COULD YOU SPEAK UP A LITTLE B IT.

I AM SORR Y. THE APPELLATE THEN IDENTIFIED THE MAN IN THE PHOTOGRAPH AS THE PERSON WHOKILLED THE VICTIM AS AN INCORRECT STATEMENT.IT SHOULD HA VE S AID MR . WIMBERLY IDENTIFIED THE MAN , AS FOUND IN P AG E 323-32 4. THE SECOND IS THAT THERE ARE A NUMBER OF SUBSTANTIVE SUBSTANTIAL ISSUES THAT I WON'T BE ABLE TO DISCUSS ALL OF THEM.I WOULD LIKE YOU TO KEEP IN MIND THAT THERE ARE TWO THINGS THAT PERMEATE ALL OF THEM. COUNSEL'S DEATH C ASE AND FOUR MONTHS TO PREPARE. THE ISSU ES I WOULD LIKE TO SPEAK AB OU T RIGHT N OW I S I SSUE ONE AND TWO OF THE INITIAL BRIEF AND T IME PERMITTING , ISSUES THREE ANDFOUR OF THE S TATE HABEAS .

JUSTICE: CONSIDERING WHAT YOU SAID ABO UT CO UNSEL HAD FOUR MONTHS TO PREPARE , IS THIS THE SECOND ATTORNEY ON THIS CASE?

Y ES.

JUS TICE: SA N TO WHAT EXTENT DID THE FIRST -- ANDTO WHAT EXTENT DID THE FIRSTATTORNEY GET INTO THIS CASE AND WHAT W ERE HIS DEALINGS WITH THE SE COND ATTORNEY?

NO DEALI NGS W ITH THE S ECOND ATTORNEY OTHER THAN THEY HAD A SH OR T CONVERSATION. DIDN'T REMEMBER WHAT THE CONVERSATION ENTAILED. MR. LOVE L ESS WAS APPOINTED IN JUNE '94-THROUGH-OCTOBER '94 AND CONDUCTED A NUMBER OF DEPOSITIONS AND THAT WAS IT.

JUST ICE: THE FIRST ATTORNEY WAS PUBLIC DEFENDER?

YES .

JUSTICE: AND THE SECOND ATTORNEY RETA INED THE FILE OF THE FIRST ATTORNEY .

JUSTICE: AND THE ATTORNEY GAVE THE FILE TO THE SECOND ATTORNEY?

HE OBTAINED THEM BUTDIDN'T KNOW WHETHER HE REVIEWED THEM OTHER THAN FOR PURPOSES OF DISCOVERY , HE DIDN'T KNOW HOW MUCH HE HAD , WHETHER HE HAD ALL OF I T OR NOT .

THE T RIAL COURT ENTERED A VERY DE TAILED ORDER ON THE ISSUES IN THIS CASE, AND AS YOU DISCUSS THE ISSUES , WOULD YOU BRING THE PROVISIONS IN THE TRIAL COURT'S OR DER THAT ARE RELEVANT AND HELP US , BECAUSE ORDINARILY WHERE THE TRIAL COURT WENT WRONG IS THE APPELLANT 'S POSITION.

I WILL ATTEMPT TO DO THAT, JUSTICE ANST EAD . LET ME POINT OUT THAT IN ALMOST ALL OF THE ISSUES IN THE TR IAL COURT'S ORDER HE E ITHER FO UND ONE PR ON G MISSING OR THE OTHER PRONG. HE DIDN'T DEAL WITH BOTH PRONGS ANYWHERE THAT I CAN FIND. WITH RE GARD TO THE PRESS , BASICALLY THE COURT REITERATED AS WELL AS THESTATE IN THEIR ANSWER BRIEF, THE FACT S THAT WERE CONTAINED IN THE AFFIDAVITS FILED BY THE POLICE OFFICERS AND MAKES THE CONCLUSION THAT THE PROB ABLE CAUSE EXISTED BUT NEITHER THE COURT IN ITS ORDER NOR DIDTHE STATE AR GUE HOW THEREWAS A NE XU S BETWEEN THE VEHICLE THAT WAS BELI EVED TO HAVE BEEN PARKED IN A PARKING LOT WH ILE MS. MORRIS WAS STILL AL IVE AND NO EVIDENCE ESTABLISHED THAT THERE WAS ANY CONTACT WITH THAT VEHICLE AF TER MR. BRANCH LEFT THE AIRPORT. WHERE IS THE NEXUS? WHERE IS THE CONTACT WITH THAT VEHI CLE THAT ESTABLISHES ANY INDICATIONSTHAT THERE WAS ANY CONTRABAND IN THAT VEH ICLE? IT IS NOT EXPRESSED BY THE COURT NOR IS IT EXPRESSED BY THE STATE.

JUSTICE: I THOUGHT AT THAT POINT, THAT THE POLICE DID KNO W THAT THE DEFENDANT WAS SEEN IN HER VEHICLE. IS THAT NOT CORRECT?

THAT IS CORRECT BUT THAT IS NOT THE VEHICLE THAT WASSEARCHED. IT WAS HIS VEHICLE THAT WAS SEARCHED.

JUSTICE: I REALIZE THAT , BUT IF THAT IS THE VEHICLETHAT HE HAD PREVIOUSLY AND HE NOW HAS BEEN SEEN IN HER VEHICLE , WHY WOULDN'T THAT , FOR INSTANCE, BE A FACT THAT PROVIDES NEXUS WITH HIM AND HER , THIS M ISSING WOMAN?

I DON'T KNOW HOW IT WOULD BE ANY DIFFERENT THAN IF HEWAS IN HIS O WN HOME PRIOR TO HER DEATH. WHERE IS THE INDICATION THATTHERE WAS ANY CRIMINALITY IN THAT VEHICL E?

JUSTICE: I THOU GHT IT WAS CONCEDED BELOW THAT IT WAS PROPER FOR THE POLICE , FOR INSTANCE, TO SE ARCH THE TRUNK OF HIS CAR . WAS THAT CONCEDED AT THE HEARING?

IT WAS CONCEDED ON AN EMERGENCY CIRCUM STANCE IN THE FACT THAT THE POLICE HAD INDICATED THAT THE VEHICLE WAS SETTING LOW AND WANTED TO LO OK IN THE TRUNK.

JUSTICE: IF THERE WAS NO N EXUS, THEN WHY WOUL D THAT BE CONCED ED? ARE WE TALKING ABOUT THAT THE POLICE ARE G OING OUT AND SEARCHING EVERY TRUNK?

NO, BUT I THINK THE SITUATION WAS AS YOU SUGGESTED , B EING SEEN IN THERED VEHICLE , IND ICATED THEFACT THAT HE MAY HAVE HAD S OME INVOLVEMENT, TO THE EXTENT THAT THERE MAY HAVE BEEN ALIVE INDIVIDUAL IN HIS TRUNK , EVEN IF IT WAS STRICTLY A SUPERFLUOUS REASONING. THE BOTTOM LINE WAS THAT WOULD HAVE TRUMPED THEQUESTION OF PROB ABLE CAUSE .

JUSTICE: YOUR ESSENTIAL POINT HERE IS THAT THE TRIALCOURT WAS ABSOLUTELY WRONG TO CONCLUDE THAT THE CIRCUMSTANCES THAT EX ISTED AT THAT TIME --

I AM SUGGESTING THAT IS CORRECT.THERE IS NO PROBABLE CAUSE.

JUSTICE: THE CIRCUMSTANCES THAT EXISTED WOULD HAVE MEANT THAT A MOTION TO SUPPRESS WOULDHAVE BEEN GRANTED AS OPPOSED TO THE TRIAL COURT'S CONCLUSION THAT THERE WASLITTLE OR NO C HANCE THAT IT WOULD BE GR ANTED.

THAT'S CORRECT. THE COURT ALSO INFERRED INEVITABLE DISCOVERY IN THE POINTING OUT MOODY'S FIRSTSENTENCE, WITH REGARD TO UNDER INVESTIG ATION. THE SECOND PART OF MOO DY WHICH WAS MOST IMPOR TANT IN SAYING THAT EVE N IF THERE IS AN ON GOING INVESTIGATION , THERE NE EDS TO BE PROBABLE C AUSE ANYWAY.

JUSTICE: WHAT DID THE LAWYER TESTIFY TO ABOUT WHY HE DID NOT FILE A MOTION TO SUPPRESS?

BASICALLY HE INDICATED, O NE, HE DIDN'T EVEN REMEMBER WHETHER HE HAD DONE ANYRESEARCH ON PROBABLE CAUSE, AND HE INDICATED THAT , WHEN HE READ THE PROBABLE CAUSE AFFIDAVIT , HE THOUGHT THAT IT WAS SUFFICIENT. THAT WAS IT.

JUSTICE: DO YOU BELIEVETHAT THIS DEF ENDANT CLEARLY HAD A SUFFICIENT INT EREST IN THAT VEHICLE , UNDER THE CIRCUMSTANCES THAT WE HAVE HERE, TO PRESENT THOSE ARGUMENTS , AND WHAT IS YOUR BEST AUTHORITY WITH REGARD TO THAT, DO YOU THI NK?

ARE WE TALKING ABOUT STANDING O R ABANDONMENT?

JUSTICE: I THIN K IT ALMOST HAS , THOSE TWO GO PRETTY CLOSE TOGETHER.

I WOULD ARGUE FIRST OF ALL , THAT IT W ASN'T ARGUED EITHER IN THE RE PLY TO THE 3.850 NO R AT THE EVIDENTIARY HEARING.STA NDING DIDN'T COME UP IN THE COURT' R ULING AND ABANDONMENT WAS COMMENTED U PON AND NEVER A FINDING. I WOULD SUGGEST WITH REGARD TO THOSE TWO ISSUES THAT THE STATE ACQUIESCED TO IT AND IF IT WERE TO CONSIDER ITTHAT WE GO BACK AND BRING THOSE ISSUES BEFORE THECOURT.THERE WAS NO ACQUIESCENCE THAT IT WAS EVEN DISCUSSED. BUT HE HAD STANDING THAT HE WAS GIVEN PERMISSION BY HIS GAND FA THER TO PO SSESS THE VEHICLE .

JUSTICE: I THOU GHT THERE WAS AN ALERT OUT FOR A STOLEN VEHICLE?

THAT WAS THE CON TENS.WHAT HAPP ENED WAS THE COURT UTILIZED PRIOR TESTIMONY OF THE TRIAL I BELI EVE, I N CORRECTLY.IN THIS COURT WHEN IT WAS ARGUED BY DEFE NSE COUNSELTHAT THIS COURT SHOULD HAVE USED PRIOR TESTIMONY TO SUBSTANTIATE ITS CLAIM, THIS COURT SAID NO, YOU CAN 'T DO IT. THERE HAS TO BE FOUR CATEGORIES UNDER WHICH YOU HAVE TO APPLY PRIOR T ESTIMONY AND THE L AST TWO DIDN'T EXIST IN THIS CA SE, EIT HER, AND THAT WAS THEREWAS NO REASON WITH REGARD TO THE QUESTION OF DETECTIVE HARBERT AT THE TRIALREGARDING THE VEHICLE BEING MISSING , WAS ANY REASON FOR DEFENSE COUNSEL TO QUESTIONH IM ON IT BECAUSE THE MOT ION TO SUPPRESS NEVER CAME UP NOR WAS THAT ISSUE INVOLVED , PLUS HE WAS AVAILABLE AT L EAST THE STATE DIDN'T SHOW THAT HE WAS UNAVAILABLE , AND THE STATE DIDN'T PREPARE BY CALLING ANY WITNESSES TO THE EVIDENTIARY HEARING TO REFUTE THE MOTI ON TO SUPPRESS, AND I WOULD SUGGEST THAT, BASED UPON THE AUNT'S TESTIMONY, SHE SPECIFICALLY STATED, WHICH IS THE COURT HAS RECOGNIZED THAT SHE NEVER REPORTED THE VEHICLE MI SSING OR SAID IT WAS WITH OUT HIS PER MISSION . SHE DE NIES THAT FACT AND I WOULD SUGGEST THAT THE ABANDONMENT, YOU KNOW , IF IHAD A SON THAT WAS IN THE MILITARY AND HE HAD TO GO OUT TO CALIFORNIA AT FOUR O'CLOCK IN THE MO RNING AND I DIDN'T WANT TO DRIVE HIM , I WOULD SAY TAKE MY CAR ANDPARK IT AT THE AIRPORT AND I WILL PIC K IT UP LATER. IF HE LEAVES SOMETHING IN IT AND SAYS, DAD, I HAVE SOMETHING IN THE CAR BUT I T IS PRIVATE. PLEASE SEND IT TO ME. DOES SOC IETY SAY HE HAS LOST EXPECTATION OF PRIV ACY WHEN HE LEA VES SOMETHING IN A FAMILY VEHICLE THAT IS LOCKED AND SOCIETY EX PECTS THAT THE VEHICLE WI LL NOT BE BROKEN INTO BEC AUSE OF ACRIME?I THINK WE HAVE THAT EXPECKTATION WITH REGARD TO THE CRIME. ON MARCH 7 , THE TRIAL STARTED. ON FEBRUARY 12, MR. MORGAN HIRED A MITIGATION SPECIALIST ON BEHALF THE STATE.ON THE 20 th SHE WROTE A LETTER TO MR .AL BRITO N INDICATING I NEED SIX MONTHS TO PREP ARE FOR THIS C ASE. OTHERWISE I CAN'T GET IT DONE. OTHER THAN THAT, MR . ALBRITTON BY HIS O WN ADMISSION , DID ABSOLUTELY NOTHING ON PENALTY PHASE. HE DIDN'T SPEA K TO THE FAMILY MEMBERS. HE DIDN'T HIRE AN EXPERT AND IRONICALLY HE FILED FOUR SEPARATE MOTIONS INFORMING THE COURT THAT HE WAS GOING TO GO TO INDIAN AN ANDWANTED TO HIRE A M ENTAL HEALTH EXPERT , , AND HE NEVER DID ANY OF IT.

CHIEF JUSTICE: HE NEVERWENT TO INDIANA?

NO. MR. LOVE LESS WENT TO INDIANA .

JUSTICE: THE PRIORLAWYER.

HE DIDN'T GET ANY SCHOOL RECORDS, DIDN'T GET ANY OTHER RECORDS , DIDN'T DO ANYTHING.

CHIEF JUSTICE: IN LO OKING AT DEFICIENT PERFORMANCE AND AS JUSTICE ANSTEAD POINTED OUT , T HIS WAS SECOND COU NSEL. WE DON'T KNOW THAT HE OBTAINED THE PRIOR FILES. H OW IS IT THAT WE DON'T KNOW THAT?

THERE WAS A LOT OF THINGS,MR. AL BRITTON HAD A VERY BADMEMORY WITH REGARD TO THIS CASE ON DIRECTION. WHEN ASKED IF HE OBTAINED THE RECORDS OF THE P UBLIC DEFENDERS OFFICE, HE DID SAYI GOT SOME DEPOSITIONS AND SOME DISCOVERY. I DON'T KNOW IF I RECEIVED ALL OF IT.THAT WAS HIS RESPONSE . THERE WAS NOTHING IN THAT I COULD FIND I N DEFENSE COUNSEL'S RECORDS TO INDICATE ANY MIT IGATION.

CHIEF JUSTICE: ANY WHAT?

ANY MITI GATION, INVESTIGATION OF ANY K IND.

CHIEF JUSTICE: OR DISCUSSION THAT HE HAD WITH PRIOR COUNSEL?

HE HAD ONE DISCUSSION WITH PRIOR COUNSEL REGARDING EXAMINATION BY DR . LARSON. MY UNDERSTANDING WAS THAT HE WAS TOLD BY MR . LOVE LESS THAT THERE IS NO ME NTAL ILLNESS PRESENT. THAT IS MY UNDERSTANDING OF THE ENTIRE TY OF THAT CONVERSATION. WHEN SP EAKING WITH MR . BRANCH WITH REGARD TO MITIGATION. MR. ALBRITTON SAID THAT MR . BRANCH WAS HAVING SOME DIFFICULTY BUT DIDN'T GET ALONG WELL WITH HIS FA MILY. THEY HAD FI GHTS. SHE TOOK THAT TO MEAN THERE WASN'T GOING TO BE ANYTHING THERE.AT THE TIME OF THE TRIAL --

JUSTICE: DIDN'T THERE , DIDN'T SOME FAM ILY MEMBERS TESTIFY AT THIS HEARING? I THOUGHT THE BROTH E AND THE GRANDFATHER ACTUALLY TESTIFIED AT THE PENALTY P HASE, AND TA LKED ABOUT MR . BRANCH'S CHILDHOOD AND THOSEKINDS OF ISSUES.

OKAY.HE DID. MR . BR ANCH, THE GRANDFATHER TESTIFIED AND ROBERT THE BROTHER TESTIFIED, BUT HERE THE TYPE S OF THINGS THAT BROUGHT OUT BY DR . DEE , WHO HAD AFFIDAVI TS AND FAMILY RECORDS FROM THE FAMILY MEMBERS WHO APPEARED AT TRIAL.

CHIEF JUSTICE: WHEN YOU S AY HE DID NOTHING AND THEN IN ANS WER TO JUSTICE QUINCE'S QUESTION , THERE ARE , WERE SE VERAL FAMILY MEMBERSTHAT TESTIFIED , NOW , THEY DIDN'T JUST APPEAR OUT OF THIN AIR. HE OBVI OUSLY DID SOMETHINGTO GET FAMILY MEMBERS THERE, SO LE T'S MAKE SURE WE ARE ACCURATE AS TO WHAT THE RECORD SH OWS AS TO WHAT WAS DONE , HOW MUCH WAS DONE. YOU MAY IS SAY HE SHOULD HAVE DONE MORE, BUT IT IS NOT AS I F N O PENA LTY PHASE TESTIMONY WAS PRESENTED .

LET M E POINT IT OUT CHRONOLOGICALLY SO I CAN GET A POINT ON IT. APPROXIMATELY 11 OR 12 PEOPLE SHOWED UP TO TESTIFY , NOT PREVIOUSLY SPOKEN TO BY MR. ALLBRATE BRIT ONE. HE - - ALBR ITTON . HE PUT THEM ALL IN A R OOM TOGETHER AND SAID , SAY THE WORST THINGS YOU CAN ABOUTMR. BRANCH. THAT WAS THE EX TENT OF HIS CONVERSATION --

JUSTICE: WAS THERE A M ENTAL HE ALTH EXPERT HIRED IN ANTICIPATION OF MIT IGATION?

NO. WHEN WE GET TO TRIAL --

JUSTICE: NO MENTAL HEALTH EXPERT CONSULTED BY E ITHER DEFENSE LAWYER?

DR . ALBRITTON CONS ULTED WITH DR . LARSON , WHO SAID THERE WAS NO MENTAL HEALTH --

JUSTICE: HE SPOKE TO DR . LARSON.

MR . LOVE LESS DID .

JUSTICE: DID HE INDICATE ANYTHING THAT MI GHT --

HE INDICATED HIS MENTAL HEALTH MIGHT HAVE BEEN A FACTOR . CHRONOLOGICALLY , JU DGE BEL L, MR. ALBRITTON ACKNOWLEDGED HE NEVER SPOKE TO MR . LARSON, BUT CHRONOLOGICALLY , AT THETIME THAT THE STATE RESTED DURING PENALTY PHASE, THE DEFENSE IMMEDIATELY RESTED. AND JUDGE NICKINSON SAID WAIT A MINUTE. I AM USED T O SE EING FAMILY MEMBERS COME UP HERE. ARE YOU TE LL ME GO THAT THE DENIAL OF THE CONTINUANCEDIDN'T ALLOW YOU TO DO THAT? MR. ALBRITTON DIDN'T ANSWER THE QUESTION. SAID I NEED A MOMENT. SPEAKS TO HIS CL IENT AND THEN CALLS THE GRANDFATHERAND THE BR OTHER . NOW , AT THE EVIDENTIARY HEA RING, THESE ARE THE THINGS THAT WERE PRESENTEDTHAT WERE NOT PRESENTED BY EITHER MR ., THE GRANDFATHER OR THE BROTHER : IMPULSIVE PERMITS.MR. BRAN CH HAS DI FFICULTY IN --

JUSTICE: WHO PRESEN TED THAT TESTIMONY?

DR . DEE . WHO PRESENTED --

JUSTICE: WAS THAT IN THE INITIAL MENTAL HEALTH EXPERT'S REPORTS?

NO. THIS STRI CTLY THROUGH AN EVALUATION BY --

JUSTICE: WHAT WE ARE GETTING TO IS IT DOES APPEAR THAT A MENTAL HEALTH EXPERT WAS CONSULTED , ALBEIT BY THEFIRST LAWYER, SO ARE YOU ARGUING THAT, WHEN YOU HAVE REPLACEMENT COUNSEL H A -- THAT HE MUST AS A MATTER OF LAW, GO GET ANOTHER EXPERT?

NO.I THIN K I AM NOT BEING CLEAR. DR. LARSON, HIRE D BY THE P UBLIC DEFENDERS OF FICE , MERELY STATED THAT HE SUFFERED FROM ANTI-PERSONALITY DISORDER AND SUFFERED NO MENTAL ILLNESS. THAT WAS THE EXTENT OF HIS TESTIMONY AS FAR AS WHAT HEDID.AT THE HEARING HE INDICATEDHE WOULD HAVE G IVEN SUBSTANTIALLY MORE INFORMATION , HAD HE BEEN REQUESTED.DR. DEE WAS HIRED BY ME DURING THE EVIDENTIARY HEARING , WHO HAD AFFIDAVITS F ROM FAMILY MEMBERS ANDRECORDS , AND WHAT I AM ABOUT TO TELL YOU IS WHAT WAS TESTIFIED TO AT THE EVIDENTIARY HEARING THAT COULD HAVE BUT WAS NOT PRESENTED AT THE TRIAL. HE SUFFERED FROM IMP ULSIVE PERSONALITY. HE STARTED OUT , HE HAD AN ALCOHOL DEPENDENCY STARTING AT THE AGE OF IN THE EIGHTH GRADE.HE HAD AL COHOL --

JUSTICE: I MI SSED THAT.

MR . BRANCH --

JUSTICE: IN THE EIG HTH GRADE?

14 Y EARS OLD H E STARTED BECOMING DEPENDENT ON CHOCHLT AL COHOLIC PARENTS. NOW -- ON ALCOHOL. ALCOHOLIC PA RENTS . NOW , THE GRANDF ATHER DIDMENTION THE FA CT THAT THE FATHER HAD ALC OHOLIC PROBLEMS. THAT WAS T HOWEVER , ACCORDING TO DR. DEE , HE HAD SEVERE ALCO HOLIC PROBLEMS ASWELL AS THE MOTHER. JUST JUST THAT WAS BASED UPON WHAT?

BASE POND TESTIMONY , AFFIDAVITS BY FAMILY MEMBERSWHO WERE PRESENT AT THETRIAL , WHO DID NOT TESTIFY , SUBMITTED AFFIDAVITS TO DR . DEE.

CHIEF JUSTICE: YOU ARE I N Y OUR REBUTTAL, BUT BE FORE YOU SIT DO WN , THIS IS , ALLMURDERS ARE HORRIBLE BUT THIS IS PARTICULARLY HORRIBLE CIRCUMSTANCES . WHAT IS IT THAT IS THE MOST DEVASTATING MITI GATING TESTIMONY THAT WASN'T PRESENTED AT THE ORIGINAL TRIAL THAT WOULD UNDERMINE OUR CONFIDENCE IN THE TESTIMONY THAT WOULD HAVE SHIFTED , PUT THIS CHOL CASE IN A DIFFERENT LIGHT?

I THINK WHAT HAPP ENED IS HE SUFFERS FROM ANTI-PERSONALITY DISORDER O R AT LEAST SYMP TOMS OF AND ALSO IMPULSIVITY AND ALCOHOL ABUSE.THOSE THR EE TO GETHER CREATED CIRCUMSTANCES BASED UPON BEATINGS WHEN HE WAS A CHILD , HEAD IN JURY , A BAN ONEMENT , ALL OF HIS EXPERIENCES AS A CHILD GROWING UP , CAUSED HIM TO BE IN A SITUATION WHEREHE IS UN ABLE TO CONT ROL HIMSELF.

CHIEF JUSTICE: YOU W A NTTO SAVE THE REST OF YOUR TIME FOR REBUTTAL?

YES.

MAY IT PLEASE THE COUR T. CASSANDRA DALTON ON BEHALF OF THE STATE OF FLORIDA.I WANT TO CORRECT SOME FACTSIN THE RECORD. COUNSEL HAD SAID THAT MR . ALBRITTON HAD REPRESENTED THE DEFENDANT FOR FOUR MONTHS, FOUR MONTHS TO PREPARE.I POINT OUT TO THE COURTTHAT THE RECORD REFLECTS THAT MR . ALBRITTON WAS COUNSEL CRIM INAL ATTORNEY S INCE 1977, BUT HE WAS NOT SURE HOW MANY CAPITAL CASES HE HAD HANDLED AT THE TIMETHAT HE HAD REPR ESENTED MR . BRANCH . MR . LOVE LESS , THE CH IEF KAZAND THE PU BLIC DEFENDER -- THE CHIEF AS SISTANT PUBLIC DEFENDER HAD REPRESENTED MR . BRANCH BEGINNING IN JUNE 1993, A LL THE WAY THR OUGH OCTOBER, BEGINNING OF NOVEMBER. MR . L OVELESS DID THE INVESTIGATION, AND THERE WASTESTIMONY AT THE EVID ENTIARY HEARING THAT THAT DEFENSE F ILE HAD BEEN PRESENTED TO MR. ALBRITTON . MR . ALL BRATE BRIT ONE TESTIFIED -- MR . ALBRITTON TESTIFIED THAT HE HAD THE DEFENSE FILE AND THAT IS ON THE POSTCONVICTION RECORD AT P AGE 12 0. HE ALSO TESTIFIED THAT HEHAD THE DISCOVERY , INCLUDING THE DEPOSITIONS. MR. LOVELESS --

JUSTICE: WAS THE INVESTIGATOR FROM THE PUBLIC DEFENDERS OFFICE INVOLVED?

YES AND MR . LOVELESS TESTIFIED TO THAT AS WELL , YOUR HONOR. MR. LOVELESS TESTIFIED AT THE EVIDENCERARY HEARINGTHAT HE MET WITH MR . ALBRITTON AT LEAST ONE TIME , ON PA GES 298-THROUGH-299. I WANT TO ADDRESS THE SECOND ISSUE FI RST. THAT I S THE COUNSE L'S ALLEGED INEFFECTIVE NESS AS TO THE PENALTY PHASE. IT IS CLAIMED THAT HE DIDNOTHING. AND AS I SAID , HE TESTIFIED THAT HE HAD THE FILE. HE TALKED T O THE DEFENDANT. HE TALKED TO THE FAMILY , AND TESTIMONY IS ON PAGE 268. THE DEFENDANT CLAIMS THAT --

CHIEF JUSTICE: ON THEFAMILY, SO WE GET A SENSE O F IT , MR . RE ITER SAID HE T ALKED TO THE FAMILY BUT IT WAS SORT OF AS ONE OF THESE THINGS THAT, I HAVE S EEN THE SE IN OTHER CA SES WHERE FAMILY MEMBERS JUST COME IN AND THEN THERE IS A LI CK AND PROMISE AND ALL OF A SU DDEN THEY ARE PUT ON THE STAND. WHAT KIND OF CONTACT DID HE HAVE WITH THE FAMILY MEMBERS?

WELL , MR . ALBRITTON TESTIFIED THAT HE HAD TALKED WITH THE FAMILY , I BELIEVE IT WAS THE WEEK BEFORE. HE HAD NUMEROUS CONVERSATIONS --

CHIEF JUSTICE: IN INDIANA?

NO. WHEN THEY WERE IN FL ORIDA.

CHIEF JUSTICE: DID HE TELL THEM TO CONTACT? WAS THERE CONTACT BEFORE AS TO WHIC H ONE SHO ULD COME DOWN?

THE DEFENDANT DIDN'T PUT ON ANY EVIDEN CE AS TO THIS, AND AGAIN THIS IS A CLAIM OF INEFFECTIVE ASSISTANCE.IT IS HIS BU RDEN. BUT WHAT MR . ALBRITTON DID TESTIFY TO IS THAT HE HAD TALKED WITH THE DEFENDANT NUMEROUS TIMES AND WAS AWAREIN TALK ING TO HIM , BASED UPON FAMILY CONF LICT , THAT THERE WAS NOT POSITIVE FOR MITIGATING EVIDENCE THAT COULD COME OUT. AS TO THE ISSUE OF --

CHIEF JUSTICE: THEN WHY DID HE HAVE THE FAMILY COME, I F THAT IS SO?

I DON'T KNOW , YOUR HONOR, IF THE FAMILY CAME BECA USE THEY WANTED TO OBSERVE THE TRIAL. THEY DID ME ET AND TALK , A NDMR. ALBRITTON TESTIFIED THAT,IN TALKING WITH THEM , BECAUSE SOME OF THE FAMILY MEMBERS FELT THAT THEY HAD A GO INDICATE V AITING INFORM -- AGGRAVATING INFORMATION , THEY DIDN'T WANT TO TESTIFY.

CHIEF JUSTICE: HOW DID THIS HAPPEN? IT DOES SE EM SO RT OF , JUST SORT OF HAPHAZARD THAT HE ALMOST RE STS HIS PENALTY P HASE NOT PUTTING ANYTHING ON, AND THEN THE JUDGE ASKS ARE YOU G O ING TO PUT SOME FAMILY MEMBERS ON, AND THEN HE MISS WHIZ% AND THEY PUT A COUPLE -- AND THEN HE WHISPER S AND THEY PUT A COUPLE OF PEOPLE O IS THAT HOW IT HAPPENED?

ON PAGES 383 AND 3 84 , THE COURT ASKED GOOD THEY WERE G OING TO MAKE A RECORD , THAN IS WHY THAT IS AND WHAT THIS COURT HAS DIRECTED , AND ORIGINALLY THE FAMILY HAD AGREED NOT TO PUT ON MITIG ATING EVIDENCE , BECAUSEWHAT THE FAMILY WOULD TESTIFY TO WOULD BEING AVATING. IT WOULD OPEN THE DOOR TO AGGRAVATING INFORMATION , AND I WOULD POINT OUT THAT THEDEFENDANT SAYS THAT THEREWERE NO SCHOOL RECORD S THAT THE DEFENS E PUT ON , AND THOSE RECORDS ALSO DID NOT COME IN DURING THE EVIDENTIARY HEARING . NOW , DR . DEE TESTIFIED TO VARIOUS FACTS THAT H E HAD READ THAT DOES NOT PROVE THOSE FACTS SUBSTANTIVELY. THOSE ARE FACTS THAT AN EXPERT RE LIES UP ON IN MAKING HIS OPINION OR COMING TO HIS O PINION, BUT NONE OF THOSE RECORDS WERE PRESENTED, AND, AGAIN , THOSE RECORDS WOULDHAVE OP ENED THE DOOR TO VERY NEGATIVE INFORMAT ION. THE DEFENDANT HAD BEEN EXPELLED FROM SCHOOL , BASED U PON THERE WERE REPORTS THAT HE WAS INVOLVED IN BREAKINGINTO THE SCHOOL , AND THAT THE SC HOOL WAS SET ON FIRE. SO CERTAINLY THAT KIND OF INFORMATION WOULD NOT HAVE BEEN HEF HELPFUL TO THE DEFENDANT . IN REGARDS TO TO THERE WAS DISCUSSION TO THE DEFENDANT WAIVING HIS RIGHT TO PUT ON MITIGATION, AND MR . ALBRITTON , THEY MA DE A RECORD OF THAT. HE SAID, WELL , LET ME TALK TO MY CLIENT AGAIN AND MAKE SURE THAT IS WHAT HE WANTS , AND AT THAT TIME THE DEFENDANT DECIDED TO GOAHEAD AND LET HIS GRANDFATHER AND HIS BR OTHER TESTIFY , AND THEY TESTIFIED AS TO HIS BACKGROUND. INTERESTING LY AT NO TIME DID THEY TESTIFY THAT THEDEFENDANT HAD BEEN AB USED , THAT HE WAS AN ALCOHOLIC OR THAT HE DR ANK HEAVILY. THAT INFORMATION DID NOT COME OUT. IN FACT THE DEFENDANT'S A UNT CONNIE WHO HAD TESTIFIEDDURING THE EVIDENCE YAEFER HAEING -- EVIDENTIARY HEARING , WHILE SHE TESTIFIEDTHAT THERE WAS ABUSION -- A BUSE DURING CROSS-EXAMINATION, SHE WAS ASKED IF SHE PERSONALLY KNEW THERE WAS ABUSE AND SHESAID, WELL, IT WAS SUSPECTED. AND SHE WAS ASKED IF HE WAS WHOLE ALCOHOL I CAN AND SHE TESTIFIED THAT SHE HAD -- ASKED IF HE WAS ALCOHOLIC AND SHE TESTIFIED THAT SHE HAD SEEN HIM HAVE ONE DR INK.

JUSTICE: WAS THERE ALCOHOL INVOLVED?

NO ALCOHOL IN THE VEHICLETHAT THE DEFENDANT HAD BEEN DRIVING.

JUSTICE: THE T H REAT M OST OFTEN WHERE WE SE E THERE IS A PROBLEM IS A GR EAT DEAL OF MENTAL HEALTH EVIDENCE THAT HAS NOT BEEN EXPLORED OR APPROACHED. WOU LD YOU ADDRESS THAT WITH REGARD TO THE MENTAL HEALTH EXPERT THAT WAS ORIGINALLY HIRED TO T AKE A LO OK AT THIS CASE, AND THEN WHAT COMES I N L ATER AND IS THERE A H UGE DISCONNECT, OR WHERE ARE WE WITH REGARD TO THAT ?

YOUR HONOR , THE , DR . LARSON HAD TESTIFIED DURING THE EVIDENTIARY HEARING , AND HIS TESTIMON Y WAS THAT HE HAD FOUND THAT THE DEFENDANT HAD ANTISO CIAL PERSONALITY DISORDER. AND HE HAD TALKED TO COUNSEL , AND THAT WOULD HAVE BEEN MR . LOVELESS.

IS THE RECORD CLEAR THAT HE DID A F ULL EXAMINATION OF THIS DEFENDANT?

APPARENTLY HIS EVALUATION WAS BASED UPON WHETHER THE DEFENDANT WAS COMPETENT. THE RECORD COU LD NOT BE F OUND, AND DR . LARSON TESTIFIED TO THAT . HE WAS HIRED AS CONF IDENTIAL EXPERT , SO OF COURSE THEREPORT WAS NOT IN THE TRIAL COURT RECORD, BUT HE TESTIFIED THAT HE HAD TALK TO COUNSEL AND HAD RECOMMENDED IF I TESTIFY , THERE IS GOING TO BE VARIOUS , A NUMBER OF NE GATIVE INFORMATION WILL COME OUT . AND COUNSEL, MR . LOVELESS WAS AWARE OF. THAT MR . ALBRITTON TESTIFIEDTHAT HE HAD TALKED TO MR . LOVELESS AND WAS AWARE THAT THE DEFENDANT HAD BEEN EVALUATED B Y DR . LARSON. NOW , DR . DE E'S TESTIM ONY IS B ASED SOLELY UPON IN TERMSOF THE ALCOHOLI SM , SOLELY UPON THE DEFENDANT'S SELF-REPORT.THERE IS NO EVIDENCE IN ANY O THER RECORDS THAT HAVE BEEN PRESENTED THAT THE ALCOHOL, THAT THE DEFENDANT HAD BEEN AN ALCOHOLIC . IN FACT, HIS TESTIMONY , DR . DEE'S TESTIMONY DOESN'T EVEN MATCH WITH THE DEFENDANT'STRIAL TESTIMONY. WHEN HE TESTIFIED AT TRIAL , HE SAID HE HAD HAD A BEER EARLIER I N THE AFTERNOON, AND THEN LA TER, WHEN HE WAS WITH THIS OTHER ERIC, HE HAD , THEY PL AYED POOL FOR AN HOUR AND THEN HAD A FEW BEER S AT THAT TIME.HE NOW HAD TO LD DR. DEE THAT HE HAD 12 OR 1 5 BEERS THENIGHT OF THE MURDER AND THAT THE BART ENDER HAD CUT HIM OFF.THERE WAS NO EVIDENCE. THEY DIDN'T PUT O N A BARTENDER TO ESTABLISH THAT . ALL OF THE EVIDENCE OR ALL OF THE INFORMATION THAT DR . DEE HAD RE LIED UPON , IS BASED UPON SELF-REPORT AND FAMILY INFORMATION, AND, AGAIN, THIS IS THE FIRST TIME WE ARE HEARING ABOUT ABUSE. AND THERE IS NO REPORTS THAT WERE SUBMITTED TO --

JUSTICE: WHAT DID DR . DEE BASE HIS DIAGNOSIS OF SOME KIND OF IMPULSE PROBLEM ON?

ACTUALLY I HAVEN'T SEEN THAT DIAG NOSIS . DR. DEE HAD TESTIFIED THAT THE DEFENDANT DID NOT HAVE A PERSONALITY DISORDER. HE HAD PERSONALITY FEAT URES. ANTISOCIAL BORDERLINE AND HISTRIONIC FEA TURES . THERE WAS TESTIMONY THE DEFENDANT'S I Q IS UP THERE A ROUND 115. THERE IS NO QUESTION THAT HE WAS ABLE TO ARTICULATE HIMSELF AND IN FACT DR . DEE AND ALL OF THE EXPE RTS THAT TESTIFIED HAD RECOGNIZED THAT. I HAVE NOT SEEN ANY THING IN MATER IALS OF IMPU LSE CONTROLTHAT WAS PUT BEFORE THE COURT AND IS A MATTER OF RECORD.

JUSTICE: THE DEFENDANT IS NOT MAKING THAT ARGUMENT THAT HE HAD IMPULSE CONTROL PROBLEMS?

NO.IN FACT , DR. DEE IN HIS EVALUATION OR HIS CONCLUSIONS , WHERE HE SA YS THESE CER TAIN STATUTORY MITIGATORS SHOULD HAVE BEEN SUBMITTED , HE R E LIES UPON THE DEFENDANT'S ALCOHOL CONSUMPTION AND THE FACT THAT HE WAS ON THE RUN , BASED UPON INDIANA. IT IS MY UNDERSTANDING THAT HE HAD BEEN ERRONEOUSLY RELEASED FROM PRISON. HE HAD PLED GUILTY TO A SEXUAL ASSAUL T. HE WAS WANTED IN PA NAMA CITY FOR A SE XUAL ASSAULT, SO HEWAS ON THE RUN , AND DR. DEE TESTIFIES THAT THE COMBINATION OF THAT AND THIS ALCOHOL CONSUMPTION , CA USED HIM TO BE UNDER EXTREME EMOTIONAL DISTRESS . HE ALSO SAID HIS CAPACITY TO CON FORM WAS SUBSTANTIALAMEND A HE WILL IMP AIRED - - SUBSTANTIALLY IMPA IRED , BASED UPON THESE PERSONALITY DISORDERS WHICH HE SAID WAS NOT THERE. THEY WERE JUST FEATURES , AND HIS ALCOHOL CONSUMPTION.

CHIEF JUSTICE: WOULD YOUGO TO UNDERSTANDING THE PRIOR VIO LENT FE LONY . THERE WAS A SEXUAL ASSAULT IN INDIA NA, AND HE HAD BEEN IN PRISON AND THEY ERRONEOUSLY RELEASED HIM?

THAT I S MY UNDERSTANDINGTHAT HE HAD BEEN SENTENCED IN, I BE LIEVE IT WAS 1992. HE HAD PLED GUILTY , AND HAD RECEIVED, AND IT WAS A FELONY, SO HE WAS SENTENCED TO A TIME BEFORE , AT L E AST AT YEAR . AND IT IS MY UNDERSTANDINGTHAT HE HAD ALRE ADY , AND I COULD BE BR ONC . -- W RONG . IF ANYTHING ELSE , HE HAD P LED IN 1992 AND HAD BEEN SENTENCED AND WAS DOWN HERE IN FLORIDA. THERE WERE WARRANTS FOR HIS ARREST FROM INDIANA AND HE WAS ALSO WANTED IN PANAM A CITY.

CHIEF JUSTICE: WAS THAT, THE PANAMA CITY SEXUAL ASSAULT , WAS THERE EVER A CONVICTION ON THAT?

YES , YOUR HONOR. AND THAT WAS BROU GHT OUT DURING THE EVIDENTIARY --

CHIEF JUSTICE: WAS THAT A PRIOR VI OLENT FELONY , THEPANAMA CITY?

THAT WAS NOT INTRODUCED AT TRIAL. ACTUALLY THE PANAMA CITY SEXUAL ASSAULT OCCURRED PRIOR TO THIS MU RDER. ACTUALLY IT OC CURRED DECEMBER 31 OF 1992, AND THEN THIS CASE INVOLVED JANUARY 11 OF 1993.

JUSTICE: BUT THAT WAS NOT USED IN AGGRAVATION.

NOT AT TRIAL, NO , BECAUSETHE CONVICTION AC TUALLY OCCURRED SUBSE QUENT .

CHIEF JUSTICE: THIS WON'T COME OUT --

IT WOULD COME OUT NOW.

CHIEF JUSTICE: WHAT YOU ARE SAYING IS DR . DEE'S TESTIMONY WOULD HAVE ACT UALLY SHOWN THE REASON HE IS UNDER EXT REME EMOTIONAL DISTRESS IS BECAUSE HE IS A SERIAL SEXUAL ASSAUL TER. THAT CERTAINLY WOULDN'T BE --

IT CERTAINLY WOULDN'T BE MITIGATING AND THE TRIAL COURT DURING THE EVIDENTI ARY HEARING AND IN HIS ORDER RECOGNIZED THAT.IN ADDITION , DR . DEE RELIES UPON THE SELF-REPORTED ALCOHOLISM. IN RESPECT TO THE PRIOR VIOLENT FELONY, CERTAINLYTHAT WOULD COME OUT IN ANY SUBSEQUENT RESENTENCING , AND OF COURSE AS PREVIOUSLY SAID , THAT THAT I S NOT NECESSARY. WE KNOW THAT I S GOING TO BE PRESENTED . TURNING TO THE MOTION TO SUPPRESS OR THE FA ILURE TO FILE A MOTION TO SUPPRESS , I WANT TO F IRST CLARIFY THIS IS A CLAIM OF INEFFECTIVE ASSISTANCE. THE STATE DOES NOT HAVE THE BURDEN TO COME FOR WARD TO ESTABLISH THAT THE SEARCH WAS CONSTITUTIONAL . IT HAS BEEN ITS BURDEN TO ESTABLISH DEFICIENT PERFORM ANCE AND THAT HE WAS PREJUDICED . NOW , DEFI CIENT PERFORMANCEHE HAS TO SHOW THAT A REASONABLE ATTORNEY WOULD HAVE FILED A MOTION TO SUPPRESS.

CHIEF JUSTICE: YOU ARECORRECT ON THIS BUT I GUESS WE NATU RALLY GO TO THE ISS UEOF THE MERITS , IF IT WAS ONE OF THE S LAM DU NK MOTIONS TO SUPPRESS , SOMEONE WOULD HAVE TO BE OUT OF THEIR M IND NOT TO TO TALLY INEFFECTIVE NOT TO FILE IT , SO WE DO LOOK AT THE MERITS , JUST TO SEE IF THERE IS ANY BASIS FOR IT, BUT I AG REE WITH YOU THAT THE PARADI GM , WE LOOK AT --

I THINK WE LOOK AT THAT IN TERMS OF THE SE ARCH WARRANT. THE ANALYSIS, THOUGH, EVEN IF THE CO URT WERE TO SAY THIS WARRANT , THE SEVERAL WAR RANT SHOULD HAVE NEVER ISSUED. THE STATE, THEN, HAD A MOTION TO SUP PRESS BEEN FILED , THE STATE, THEN , COULD HAVE COME FORW ARD AND ARGUED NO STANDING, BECAUSETHE DEFENDANT, THE CARWASN'T IN HIS NAME.THE CAR HAD BEEN REPORTED MISSING.AT NO TIME WHEN IT WAS REPORTED MI SSING, DID THEAUNT SAY, BUT IF YOU FIND MY NEPHEW IN THE CAR THAT IS OKAY. SHE DIDN'T SAY THE CAR IS MISSING BUT MY NE PHEW HAS PERMISSION TO BE DRIVING IT. ALL THE --

JUSTICE: THE TIME FR AME THAT WE ARE TALKING ABOUT, HE HAD THE VICTIM'S CAR, SO HE HAD , HE HAD JUST LE FT THE OTHER CAR AT THE A IRPORT AND AT WHAT TIME?

THIS IS THE SEQUENCE OF EVENTS. ON J ANUARY 9 , THE A UNT REPORTS THE CAR MISSING . THEN O N JANUARY 9 AND 10 , HIS CAR WAS SE EN AT THE UNIVERSITY, AND WE KN OW THAT BECAUSE THE UNIVERSITY P OLICE HAD BEEN --

JUSTICE: WHAT CAR ? WAS AT THE UNI VERSITY.

HE WAS DR IVING THE BONNEVILLE, HAD BEEN AT THE UNIVERSITY. THERE HAD BEEN RECORD CHECKS OR COMPUTER CHECKS ON IT. THE UNIV ERSITY PO LICE WERE LOOKING AT THAT. HE IS SEEN AT THE UNIVERSITY ON THE N INTH AND 10 th OR HIS CAR THERE , AND WE HAD TESTIMONY FROM MELISSA COWED EN, THAT HE WAS -- COWDEN THAT HE WAS THERE ON THE 9th AND 10th AND THEN ON THE 11th, THE CAB DRIVER TESTIFIES THAT HE SAW , HE ACTUALLY DROVE THE DEFENDANTTO THE CAMPUS ON THE 11th , BETWEEN 6:00 P.M. AND 8:00 P.M.. WE KNOW THAT THE VICTIM IN THIS CASE HAD CLASS THAT NIGHT. THERE WAS TESTIMONY THAT SHE GOT OUT OF CLASS AT ABO UT 8:20. WHAT THE POLICE KNEW , THOUGH , WHEN THEY DID THE SEARCH WARRANT, WAS THAT CLASS ENDED AT 9:1567 89 SHE HAD BEEN REPO RTED MISS ING ON JAN -- AT 9: 15. SHE HAD BEEN REPORTED MISSING ON JANUARY 1 2. THE DEFENDANT WAS SEEN DRIVING THE VICTIM 'S CAR ON THE 11th , THE NIGHT OF THE MURDER. ACTUALLY HE WAS SEEN PUTTING SOMETHING IN THE CAR. THERE WAS TESTIMONY FROM JOSHUA SWANN, I BELIEVE. ON THE 12 th HE I S SEEN DRIVING THE CAR THAT MATCHES THE VICTI M'S, B OTH HIS BROTHER AND HIS COUSIN TESTIFIES TO THAT. HE THEN DRIVES TO PANAMA CITY. I THINK HE STOPS IN DESTIN.THERE WAS AN OTHER WITNESSTHAT TESTIFIED THAT HE WAS IN THAT CARROT 12th. AND HIS -- IN THAT CAR , ON THE 12th, AND HIS CAR WASN'T FOUND UN TI L 4:15 ON THE 10th OF JANUARY. WHAT THE POLICE KNEW AT THAT TIME IS THE VEHI CLE SOMETIME IS 'HE OO -- THE VICTIM IS MISSING.HE HAD BEEN SEEN WIT H THE CAR. THEY OPENED THE TR UNK BECAUSE O F EDGY GENT CIRCUMSTANCES OF THE THEY KNEW THE DEFENDANT THEY KNEW THE VICTIM WAS MISSING AND THEY WERE CONCERNED THAT SHEWAS THERE .

JUSTICE: WAS THERE AN ARGUMENT BY THE STATE THAT HE HAD ABANDONED THE CA R?

THAT IS PART OF THE ARGUMENT, AND THE STATE CAN SEE THE INITIAL ENTRANCE OF THE TRUNK , THAT THERE WERE EXGENT CIRCUMSTANCES .

JUSTICE: A FTER THE SEARCH OF THE TRUNK , THEN THE CAR WAS REMOVED?

THE CAR WAS SEIZED AND REMOVED TO THE SHERIFFS OFFICE.

JUSTICE: I THINK THAT THETRIAL JU DGE, AC TUALLY , FOUND THAT THERE WAS N O EVIDENCE FURTHER. THERE WAS NO FURTHER SEARCH OF THE CAR .

THAT'S CORRECT, YOURHONOR.

JUSTICE: AFTER THE CARWAS REMOVED AND UNTIL A WARRANT WAS OBTAINED.

THAT'S CORRECT.THE CAR WAS REMOVED ON THE 1 3th , THE LATE AFTERNOON OF THE 13th , AND AT THAT TIME , IT WAS NOT SEARCHED. A SEARCH WARRANT WAS SUBSEQUENTLY THE VERY NEXT DAY, WAS OB TAINED. AND CER TAINLY THE CASE LA W IS CLEAR THAT , WHERE YOU HAVE A VEHICLE , IT IS IN A PUBLIC LOT. IT IS A BO NDONED , AND -- IT IS A ABANDONED, AND EVEN IF THE COURT WERE TO DETERMINE IT WAS NOT ABAN DONED , IT IS MISSING. THE POLICE CAN SEIZE AVEHICLE AND IMP OUND IT WHEN IT IS MISSING. THERE IS NOTHING REQUIRED THAT IT HAD BEEN REPORTED STOLEN. IT HAD INDIANA TAGS ON IT AND THE KE YS WERE IN , THERE WAS TESTIMONY THAT KEYS WERE SEEN IN THE CAR IN PL AIN VIEW. IN TE RMS OF NO PROBABLE CAUSE , IN ADD ITION TO KNOWING THAT THE VICTIM WAS MISSING, HER BO DY WAS DISCOVERED LA TER, AFTER THETRUNK WAS ACTUALLY GO TTEN INTO , AND --

CHIEF JUSTICE: WHAT WASTHE REASON THAT THE DEFENSE LAWYER STATED THAT HE HAD DIDN'T FILE THE MOTION TO SUPPRESS?

HE TESTIFIED THAT HE ACTUALLY DID RESEARCH , AND , ON THE ISS UE.

CHIEF JUSTICE: I MEAN , IT SEEMS LIKE THERE IS AT LE AST AT COLO RABLE ARGUMENT THAT COULD BE MA DE, WHETHER IT IS A SLAM DUNK WI NNER .

I WOULD RESPECTFULLY DISAGREE. HE TESTIFIED THAT HE RESEARCHED THE ISSUE. THAT IS ON PA GES 132-THROUGH-141 OF THE EVIDENTIARY HEARING AND P AGES 227-THROUGH-228. HE SAID HE FELT IT WOULD BE A WASTE OF TIME. HE HAD TALKED WITH MR . LOVELESS REGARDING THE CASE, AND WHILE MR. LOVELESS HAD TESTIFIED AT THE EVIDENTIARY HEA RING, HAVING READ THE AFFIDAVIT THAT HE WOULD HAVE EXPECTED TO , WHAT IS INTERESTING IS HE HAD ALL OF THE DEPOSITIONS PRIOR TO TRIAL.

CHIEF JUSTICE: THE PRIOR LAWYER SAID HE EXPECTED THATHE WOULD HAVE FI LED A MOTION TO SUPPRESS?

AFTER HE READ THE AFFIDAVIT DURING OR RIGHTBEFORE THE EVIDENTIARY HEARING, BUT HE HAD THAT AFFIDAVIT PR IOR TO TRIAL , WHILE HE WAS STILL TRIAL COUNSEL. HE DIDN'T FILE, AND M R . ALBRITTON HAD TESTIFIED THAT HE DID RESEARCH AND HE FELT THAT THERE JUST WAS NOT ABASIS FOR FILING THE MOTION . AND , AGAIN, HAD THE MOTION BEEN FILED, THE STATE COULD HAVE BROUGHT OU T NOT ONLY THAT THE DEFENDANT HAD ABANDONED THE CAR BUT , BECAUSE THE POLICE HAD THE RIGHT TO SEIZ E IT , THEY,THEN, COULD HAVE DONE AN INVENTORY SEARCH. IN SEEK ING THE SEARCH WARRANT, THE POLICE ALSO KNEW BY THAT TIME , THEY KNEW THE VICTIM, SHE HAD BEEN FOUND. SHE WAS NU DE. WHEN THEY HAD OP ENED THETRUNK , THEY SAW CL OTHES LAYING IN THERE. THEY, A GAIN , KNEW THAT THE DEFENDANT WAS DRIVING THE VICTIM'S CAR, AND THE DEFENDANT HAD BEEN DRIVINGTHE VICTIM'S CAR HAD BEEN ON THE CA MP US AT THE TIME THAT SHE WAS THERE . -- ON THE CAMPUS AT THE TIME THAT SHE WAS THERE AND THE DEFENDANT WAS WANTED FOR SEXUAL OFFE NSES . THERE CERT AINLY WAS PROBABLE CAUSE IN O R DER FOR THE POLICE TO HAVE GOT TEN THE SEARCH WARRANT . THE DEFENDANT , ALSO , ARG UES THAT THERE WERE A NUMBER OF FACTS THAT WERE FALSE , THAT WERE IN THE POLICE REPORT , AND I BE LIEVE I ADD RESSEDTHAT IN MY BRIEF , AND IN LOOKING AT THE RECO RD, THECOURT WILL SEE THAT THAT REALLY IS AN OVERSTATEMENT . AND THAT WE ARE QUIBBLING ABOUT WHET HER A WITNESS HAD S AID SOM EONE PROBABLE LOOKED LIKE, AND THEN WHETHER HE IN FACT, IDENTIFIED THE DEFENDANT. RESPECTFULLY ASK REQUEST THAT THE COURT AF FIRM THE JUDGEMENT.

I WILL STA RT ON MITIGATION FIRST.

CHIEF JUSTICE: LE T'S START ON SOMETHING THAT IWANT TO M AKE SURE ABOUT , BECAUSE YOU KN OW THE COURT IS QUITE CONCERNED WHEN THINGS ARE E ITHER ACCURATELY STATED OR INACCURATELY STATED. MS. DOLGIN HAS POINTED OUT THAT IN THE RECORD THERE IS EVIDENCE THAT THE , THAT HE DID HAVE MR . ALBRIT TON DID HAVE THE PRIOR LAWYER'S FILE AND HAD TALKED TO THE PRIOR LAWYER , SO DO YOU WANT --

THERE ARE A NUMBER OF FACTS THAT WE DISAGREE ON. I THINK I SAID BEFORE , WAS HE DID IN FACT HAVE DISCOVERY DEPOSITIONS, BUT WHEN ASKED DO YOU KNOW IF YOU HAD THE ENTIRE FILE, HE SAYS I DON'T KNOW IF I HADTHE ENTIRE FILE. HE HAD DEPOSITIONS, NO QUESTION ABOUT THAT.

CHIEF JUSTICE: HOW ABOUT SPEAKING WITH THE LAWYER?

I SAID THAT HE DID SPEAK W ITH MR . LOVELESS BUT NEITHER MR. LOVELESS NO R MR . ALB RITTON COULD REMEMBER WHAT WAS TALKED ABOUT IN THE CONVERSATION, BUT WITH REGARD TO WHE THER OR NOT HE HAD SPOKEN TO THE FAMILY MEMBERS, IF YOU LOOK AT THERECORD, MY RECOLLECTION IS , WHEN HE SAID TO YOU , DID YOU SPEAK TO THE FAMILY ME MBERS BEFORE THEY CAME DOWN TO FLORIDA?N O. Q UESTION WAS --

JUSTICE: I THOUGHT THAT THE , YOUR OPPONENT SAID THAT THEY CAME A WEEK BEFORE THE TRIAL, AND THAT WAS DURING THAT TIME PERIO D THAT --

I SPECIFICALLY --

-- THE ATTORNEY TALKED WITH THESE WITN ESSES. NOW , IS THAT TR UE?

MY RECOLLECTION IS I SPECIFICALLY SAID HOW M UCH TIME DID YOU SPEND WITH THEFAMILY? I DON'T REME MBER. WHAT WAS ENTAILED IN THE CONVERSATIONS? I DON'T REMEMBER.

JUSTICE: IS IT TRUE , HOWEVER , THAT THEY CAME DOWN TO F LORIDA A WEEK OR SO BEFORE THE TRIAL?

THE WEEK PRIOR TO THE TRIAL, AND ACCORDING TO CONNIE BRANCH , THE ONLY CONVERSATION THAT TOOK PL ACE WAS HE SAID T O THEM, ALL IN THE ROOM AT THE SAME TIME, WAS STATE WORST THINGS YOU CAN THINK ABOUT HI M. THEY DID NOT PREP THEM OR SPEAK ON ANY FACTS WHATSOEVER REGARDING THE CASE, AND IT WAS UNREFUTED .

JUSTICE: WHO RETAINED MR . ALBRITTON FOR MR. BRANCH?

HIS GRANDFATHER .

WHO?

BRAN CH'S GRANDFATHER.

JUSTICE: WHAT DISCUSSION WAS THERE AT T HAT TIME, AT THE RETAINING OF THE ATTORNEY?

I AM NOT FOLLOWING.

JUSTICE: GENERALLY WHEN A FAMILY MEMBER COMES AND TRIES TO HI RE AN ATTORNEY , T HEY TALK TO THEM. WHAT WAS THE DISCUSSION REVEALED AT THE EVIDENTIARY HEARING?

NO , IT WAS NOT.

JUSTICE: AROUND THE TIME O F THE HIRING OF THE --

NO , THERE WAS NOT. THE ONLY DISCUSSION CAME WASWHEN HE TRIED TO FIRE HIM AND HE REFU SE D TO BE FIRED.

JUSTICE: WOULD YOUDISCUSS THE FACT THAT THE TRIAL COURT , IN TERMS OF THE MITIGATION , INEFFECTIVE ASSISTANCE, SAID T HAT THE CLAIM WAS PRESENTED AT THE POSTCONVICTION HEARING THROUGH DR. D E E THAT TESTIMONY WOULD BE PRESENTED THAT HE WAS UNDER M E NTAL D URESS AT THE TIME OF THE OFFENSE , BECAUSE HE HAD FLED INDIANA , BECAUSE OF THE PROSECUTION UP THERE FOR THE PRIOR SEXUAL BATTERY, ANDTHAT HE WAS UNDER STRESS BECAUSE HE HAD COMMITTED ANOTHER SEXUAL BA TTERY , AND THAT, IF YOU COUPLE THESTRESS THAT HE WAS UNDER F ROM RUN NING FROM THOSE TWO SEXUAL BATTER IES WITH HIS CONSUMPTION O F ALCO HOL , THAT THE EXPE RT DR . DEE WOULD HAVE TESTIFIED THAT HE WAS, ALTHOUGH IT DIDN'T MEET THE STATUTORY DEFINITION , THAT IT WOULD ESTABLISH THAT HE WAS UNDER SOME STRESS. NOW , IS I T CO RRECT , DID YOU PRESENT THAT IN YOUR MEMORANDUM TO THE TRIAL COURT JUDGE?

WELL , FIRST OF ALL THEREWAS A QUESTION WHETHER ORNOT IT WAS DURESS OR UNDER EXTREME EMOTIONAL DISTRESS .

JUSTICE: WHAT I AM REALLY INTERESTED IN THERE, APPARENT , I S , ARE YOU REALLY SAYING THAT YOU WOULD HAVE OFFERED, IF YOU WERE DOING THIS , TESTIMONY THAT , I ASSUME DIDN'T COME OUT , THAT HE HAD COMM ITTED ANOTHER SEXUAL BATTERY IN PANAMA C ITY AND THAT HE WAS IN FLIGHT FROM THE AUTHORITIES IN INDIAN A? -- INDIANA? IN ORDE R TO G E T IN TESTIMONYTHAT HE WAS UNDER STRESS FROM BEING IN FL IGHT?

WHAT YOU HAVE TO REALIZE THOUGH IS WHAT CAME OUT --

JUSTICE: FIRST ANSWER THAT. IS THAT P ART --

IN CONJUNCTION WITH OTHER --

JUSTICE: YES, THAT WOULDHAVE BEEN PRESENTED. NOW , HOW DEVASTATING WOULD THAT HAVE BEEN?

NONE AT ALL. LET ME TE LL YOU WH Y. SEE, THAT IS WHERE THE PROBLEM COMES IN. WHEN YOU TALK ABOUT UNFAVORABLE INFORMATION , THE STATE SAYS, EXPELLED FROM SCHOOL. STA RTED A FIRE . THAT CAME IN. PRIOR VI OLENT FELONY. THAT CAME IN! THE STATE INTRODUCED THAT INFORMATION. SO WHAT ARE YOU SUPPOSED TO DO? IGNORE IT?YOU HAVE TO PRESENT THAT INFORMATION THAT THE STATE SHOWS BAD INFORMATION, IN L IGHT OF HIS TOTAL CIRCUMSTANCES.THE MAN IS IMPULSE CON TROL. HAS PROBLEMS. HE HAD ANTI-PERSONALITY SOCIAL DIS ORDER, WH IC H THIS COURT SAID IS A MITIGATOR . WHAT ARE THE FACT ORS THAT CREATE THAT? WHEN YOU SAY THAT THE MAN HAS IMPULSE PROBLEMS, HE HAS ALCOHOL PROBLEMS, HE SUFFERS FROM ANTISOCIAL PERSONALITY DISORDER, WHAT THING THINGS W OULD AFFECT HIM TO BEC OME