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Roy Lee McDuffie v. State of Florida

SC05-587

FINAL CASE ON THE CALENDAR
THIS MORNING McDUFFY VERSUS
STATE OF FLORIDA.,,,,,,
McDID YOU HAVEFY BEFORE THE
COURT ON DIRECT APPEAL FROM
CONVICTIONS FOR MURDER AND TWO
DIETING SENTENCES.
>> YOU HAVE AS WE ALWAYS SAY
AT THE BEGINNING, YOU HAVE
GOT, A LOT OF POINTS.
>> YES.
>> AND WOULD YOU LET US, AND
VERY INTRICATE FACTUAL
CIRCUMSTANCE, COULD YOU
HIGHLIGHT WHICH POINTS YOU
BELIEVE ARE -- WELL, I KNOW
YOU THINK THEY ARE ALL
MERITORIOUS WHICH POINTS ARE
YOU GOING TO ARGUE TO US?
>> THIS MORNING, TIME
PERMITTING I'D LIKE TO ARGUE
ARGUMENTS ONE, WHICH IS THE
RICHARDSON CLAIM, PORTION OF
ARGUMENT TWO, SUBSECTION B,
DEALS WITH THE IMPROPER
RESTRICTION ON
CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION, OF TUESDAY
WITNESSESES TIME FOR ARGUMENT
FIVE AND ARGUMENT SIX
SUFFICIENCY OF THE EVIDENCE.
>> ARE YOU PART OF ISSUE FIVE,
IS TO DO WITH THE PETERSON --
>> CORRECT, CORRECT.
>> THAT IS RELATIVELY BRIEF
ARGUMENT BUT I THINK AN
IMPORTANT CERTAINLY IN THE
CONTEXT OF THE CUMULATIVE
CONSIDERATION OF SOME OTHER
ERRORS THAT WE SUBMIT OCCURRED
IN THIS CASE, AS TO ARGUMENT
ONE THAT ARGUMENT RELATES TO
WHAT OCCURRED DURING THE
DEFENSE CASE-IN-CHIEF WHERE
COUNSEL ATTEMPTED TO CALL A
WITNESS BY THE NAME OF ANTHONY
WIGGINS!!$$!!!!!!!!!!!!
WIGGINS, TO TESTIFY THAT
MR. HE HAD LOANED MR. McDID
YOU HAVE KWLOOI -- McDUFFY TWO
OCCASIONS MONEY IN THE WEEK
PRECEDINGING MURDERS HERE THIS
ISSUE WAS CRITICAL, BECAUSE
THE $$STATE'S THEORY OR THE
STATE $$HOST'S THEORY OF MOTIVE
WAS FINANCIAL MOTIVATION AND
MR. McDUFFY AND HIS WRIEF WERE
SO IN SUCH FINANCIAL
STRAIGHTS, THAT AS A RESULT HE
COMMITTED ROBBERY OF THE
DOLLAR STORE WHERE HE WAS
EMPLOYED AND DURING THE COURSE
OF THAT ROBBERY, MURDERED TWO
VICTIMS HERE.
>> THE JUDGE STRUCK THE
WITNESS WITHOUT REALLY LOOKING
AT ALTERNATIVES THAT IS YOUR
RICHARDSON ERROR.
>> THAT IS CORRECT.
>> MY BIGGER CONCERN IS THE
HARMLESS $$ERROR QUESTION AND I
MEAN WHAT -- HE COULD HAVE
TESTIFIED TO A 40 DOLLAR!!$$!!!!!!!!!!!!!!!!$40 ON ME ORDER
IS THAT HE --
>> THERE WERE TWO, WHERE THE
40 DOLLAR!!$$!!!!!!!!!!!!!!!!$40 -- THE WAY THE RECORD
REFLECTS IS THAT WIGGINS COULD
HAVE TESTIFIED ON TWO OCCASION
HE IS AROUND THE SAME DATE
APPROXIMATELY A WEEK BEFORE
THE MURDERS, HE WIRED
MR. McDUFFY SOME MONEY.
HE HAD A RECEIPT FOR ONE OF
THOSE TRANSACTIONS -- RECEIPT
FOR THE 40 DOLLARS!!$$!!!!!!!!!!!!!!!!!!$40, APPARENTLY HE DID
THAT TRANSACTION AT WORK SO HE
HAD THE RECEIPT IN HIS OFFICE,
HE WAS ATTEMPTING BUT UNABLE
TO LOCATE THE RECEIPT THE WIRE
TRANSFER RECEIPT FOR THE
SECOND --
>> HOW MUCH WAS THE SECOND
AMOUNT?
>> SECOND LOAN I THINK FOR #
00 OR -- 340 DOLLARS!!$$!!!!!!!!!!!!!!!!!!!!$340.
>> MY PROBLEM WITH IT AS FAR
AS HARMLESSNESS IS THAT THISES
IN IN THE DAYS BEFORE HE ELSE
ABOUT HIS LANDLORD THAT HE
DOESN'T HAVE THE MONEY, SO
WHATEVER MR. WIGGINS WOULD
HAVE GIVEN HIM WAS -- ALREADY
USED, BUT YET THE DAY AFTER,
HE HAS 1430 DOLLARS!!$$!!!!!!!!!!!!!!!!!!!!!!$1,430, IN MONEY
ORDERS, AND I THINK THAT
WIGGINS DOESN'T EVEN TOUCH ON
THAT ISSUE, OF IF HE DIDN'T
HAVE THE MONEY, AND I REALIZE
WE DON'T SOMETIMES YOU CAN'T
ISOLATE THIS BUT THAT IS WHAT
YOU KNOW, I CAN BUY THE IDEA
THAT IT IS THAT THEY WERE ABLE
TO ARGUE ONLY FAMILY MEMBERS
CAME IN.
BUT AS FAR AS THE AMOUNTS
INVOLVED, IN THE TIMING, IT
SEEMS THAT IT WOULD BE
HARMLESS ERROR.
>> WELL, FIRST OF ALL THERE
WAS EVIDENCE THAT MR. McDUFFY
DID HAVE BECAUSE HE HAD ALSO
THE EVIDENCE SUGGESTED THAT HE
HAD RECEIVED SOME OTHER HOONS
FROM FAMILY MEMBERS HAD INDEED
PAID OFF, I THINK IT WAS,
SOMETHING IN THE MID PART OF
OCTOBER SO HE DID HAVE MONEY,
CERTAINLY THE EVIDENCE
SUGGESTED THAT THERE WERE
CONTINUED MONEY PROBLEMS.
I'M NOT SURE THAT THE AMOUNTS
OF THE LOANS THAT WIGGINS
WOULD TESTIFY IT TO IS THE
CRITICAL FACT ALTHOUGH IT IS
CERTAINLY IMPORTANT, I THINK
WHAT IS CRITICAL AS YOUR HONOR
POIVENLTED OUT WAS THE FACT
THAT THERE WAS -- A NONFAMILY
MEMBER, WITH OBJECTIVE
DOCUMENTATION TO SHOW THAT
MONEY WAS COMING IN FROM OTHER
SOURCES BESIDES THE FAMILY, TO
REFUTE THE $$STATE'S THEORY OF
MOTIVATION.
>> NOW ON TERMS YOU MAKE SOME
CONSTITUTIONAL, AT THAT ARE
NOT PRESENT WHEN THE FOR THE
STATE YOU KNOW, STATE
COMMITTING A DISCOVERY
VIOLATION THAT IS THAT YOU
HAVE GOT A RIGHT TO PRESENT
WITNESSES THERE IS A
CONSTITUTIONAL IMPLICATION,
BUT, DO YOU AGREE OR DISAGREE
THAT THE STATE IF THERE IS A
RICHARDSON VIOLATION THAT THE
STATE WOULD STILL HAVE THE
BENEFIT OF BEING ABLE TO
ESTABLISH IF THEY CAN THAT IT
IS HARPLESS BEYOND A
REASONABLE DOUBT THAT IT IS
NOT A PER SE REVERSAL WITH THE
SITUATION OF A DEFENDANT
HAVING A WITNESS STRUCK?
DO YOU AGREE WITH THAT.
>> I AGREE CERTAINLY -- WITH
THE CASE LAW FROM VARIOUS
DISTRICT COURTS OF APPEAL.
>> -- SAYS RIGHT TO REMAIN
SILENT CAP BE HARMLESS SIEGE
TO ME RICHARDSON VIOLATION --
SUBSEQUENT TO COULD HOPE,
HOWEVER IT IS SAID COULD STILL
BE HARMLESS.
>> CORRECT.
>> OKAY, CORRECT I'M SAYING
UNDER THE FACTS OF THE
CIRCUMSTANCES, WHAT THE
COURTS, I DON'T THINK THERE IS
A CASE THAT I FOUND FROM THE
-- THIS COURT THERE MAY HAVE
BEEN ONE FROM 70s THAT TALKS
ABOUT A RICHARDSON VIOLATION
IN THE CONTEXT OF A -- OF A
STRIKING A DEFENSES WITNESSES
THERE HAS BEEN A BODY OF CASES!!$$!!!!!!!!
CASES, WHICH ARE NOT DISCUSSED
AT ALL ABOUT!!$$!!!!!!!!!!!!!!!!BY THE STATE I DON'T
BELIEVE THAT I FOUND ONE,
WHERE IT WAS FOUND TO BE HARM!!$$!!!!!!
HARMLESS.
AND SO I THINK, AND WHAT THE
COURTS DISCUSSES THE FACT THAT
WHEN IT IS A DEFENSE WITNESS
OR EVIDENCE STRUCK IT I
AMPLICATES THE 6THALD SO IT IS
NOT LIKE THE CONVERSE, WHERE
THERE IS A VIOLATION ON THE
OTHER SIDE OF THE OTHER BHAERT
DEFENSE WITNESS YOU HAVE 6TH
AMENDMENT IMPLICATED
FURTHERMORE!!$$!!!!!!!!!!!!!!!!!!!!
FURTHERMORE, I THINK ONE OF
THE OTHER FAR, TO CONSIDER
WHEN ASSESSING HARMLESS ERROR
ANALYSIS THE FACT THAT STATES
COULD CAPITALIZE ON WHAT I
SUBMIT TO BE ERROR IN THE
CHEESING ARGUMENT, SUGGEST --
CLOSING ARGUMENT SEGING --
SUGGESTING THIS WAS A --
>> HAVE WE EVER DEALT WITH A
RICHARDSON ERROR IN TERMS OF
HARMLESS!!$$!!!!!!!!!!!!!!
HARMLESSNESS?
THE CHOP CASE DEALT IN TERMS
OF PREJUDICE.
>> YES, BUT HAVE YOU GONE, AND
SIP!!$$!!!!
SIPIO, I BELIEVE YOU ADDRESSED
THE FACT THAT ALTHOUGH YOU ARE
STILLED A HERE TO GO THE
STRICT PROCEDURAL PREJUDICE
REQUIREMENT!!$$!!!!!!!!!!!!!!!!!!!!
REQUIREMENT, AND THAT ONLY IN
A RARE CIRCUMSTANCE WERE A A
DISCOVERY VIOLATION BE FOUND
TO BE HARMLESS YOU CLARIFIED
SOME EARLIER LANGUAGE, I THINK
IT WAS IN CHOP MAY HAVE
INDICATED THAT IT WAS YOU KNOW
PER SE, REVERSIBLE -- THIS
COURT IN CICIPPIO THE COURT
FOUND IT WAS IN CHP OUT FOR
FOUND ERRORHAMLESS CICCIPIO
HARM FULL REVERSED THERE IS
SOME CASE LAW FROM THE COURT
THOUGH CERTAINLY NOTHING
RECENT ADDRESSING THE
SITUATION ON THE OTHER SIDE
WHERE YOU HAVE DEFENSE WITNESS
I SUMMIT PARTICULARLY HERE YOU
HAVE THE STATE CAPITALIZING ON
THE EXCLUSION DURING THE
CLOSING ARGUMENT REALLY THIS
CASE COMES DOWN TO MR. McDUFFY
MAINTAINS INNOCENCE DOES SO
TODAY, SO, THERE IS NO OTHER
MOTIVE THAT THE STATE WAS ABLE
TO SUGGEST, OTHER THAN THIS
FINANCIAL MOTIVE, SO, YOU KNOW
WHEN IT COMES DOWN TO $$STATE'S
ABILITY TO ESTABLISH HARMLESS
NE -- YOJD A REASONABLE DOUBT
THIS IS A SIGNIFICANT, FACTOR
IN TERMS OF THE OVERALL
PRESENTATION OF THE CASE IF
DEFENSE DIDN'T THINK WIGGINS
WAS NECESSARY, IT WOULDN'T
HAVE GONE TO THE TROUBLE
TRYING TO PRESENT IT.
>> AGAIN, BEGINS WAS NECESSARY IT
WOULDN'T HAVE GONE TO
TROUBLE PRESENTING IT.
>> ISN'T THE AMOUNT INVOLVED
RELEVANT TO WHETHER IT'S
HARMLESS OR NOT.
WIGGINS WAS GOING TO TESTIFY
I GAVE HIM $1,000.
$2,000 HE HAS MUCH BETTER
CLAIM THAT HE WASN'T IN
FINANCIAL STRAITS.
>> HIS CLAIM ALWAYS BEEN HE
WAS NEVER CERTAINLY
FINANCIAL STRAITS PORTRAYED
HIM TO BE.
BUT CERTAINLY THE AMOUNTS
ARE A FACTOR.
BUT LIKE I SAID THE RECORD
ALSO BEARS OUT THAT HE HAD
BEEN RECEIVING MONEY FROM
OTHER FAMILY MEMBERS.
>> HE PRESENTED THAT.
HE WAS ABLE TO PRESENT THAT.
>> HE PRESENTED THAT.
THIS IS WHY WIGGINS IS SO
IMPORTANT.
THE STATE CROSS-EXAMINED ALL
THE WITNESSES ALL FAMILY
MEMBERS.
BROTHERS.
MOTHER, MR. McDUFFIE HIMSELF
ALL WERE CROSS EXAMINED THEY
NO DOCUMENTATION DON'T
REMEMBER LOANS OCCURRED OR
AMOUNTS.
>> IT WAS EVIDENT HERE THAT
THERE WAS A $1400 MONEY
ORDER THAT WAS BOUGHT THE
DAY AFTER THE MURDER.
>> CORRECT.
EARLY IN THE MORNING.
>> CORRECT.
CORRECT.
>> SO WE'RE DEALING WITH
SUBSTANTIALLY MORE THAN THE
$40, AS FAR AS THE TOTALITY
OF THE RECORD.
>> THERE IS THE 40 AND THE
300.
PLUS THERE IS THE DECISIONAL
MONIES, THAT, THERE WAS
EVIDENCE PRESENTED WAS
LOANED TO MR. McDUFFIE.
LIKE I SAID THE RECORD DOES
REFLECT, I'M NOT SURE WHO
TESTIFIED TO THIS, IT MAY
HAVE BEEN MR. McDUFFIE OR
MAY HAVE BEEN, I DON'T
REMEMBER, THERE WERE SOME
CASES FACTUALLY DENSE.
THERE WAS EVIDENCE THAT I
THINK FIRST OR SECOND WEEK
IN OCTOBER MR. McDUFFIE DID
MAKE A PAYMENT TO, IT WAS
EITHER FOR, I THINK IT WAS
FOR THE RENT OF THE NEW
RESIDENCE, PARTIAL PAYMENT.
HE STILL OWED SOME DECISION
ADDITIONAL MONEY FOR THE
REMAINDER OF THE SECURITY
DEPOSIT.
>> I LIKE YOU TO SAY SAID
YOU WERE GOING TO GET INTO
2-B.
>> YES.
>> THE CROSS-EXAMINATION.
THIS IS SORT OF UNUSUAL, TO
ME UNUSUAL SITUATION BECAUSE
YOU HAVE GOT, WHY DON'T YOU
TELL US, THE STRONGEST
RESTRICTION WAS BECAUSE YOU
HAD BOTH MATAIS AS WELL AS
HOPKINS.
>> CORRECT.
>> THEN YOU'VE GOT THE
CROSS-EXAMINATION AS TO,
FITZGERALD BEING MAYBE THE
GUY THAT IS OUTSIDE.
AND THEN YOU GOT, ABSOLON
SUPPOSE TO LOOK LIKE.
>> McDUFFIE.
>> McDUFFIE.
>> CORRECT.
THIS IS VERY TROUBLING
CLAIM.
WHAT HAPPENED, TRIAL THERE
WAS LITIGATION ON REVERSE
WILLIAMS RULE EVIDENCE.
JUDGE ULTIMATELY, GRANTED
THE STATE'S MOTION IN HIM
KNEE, PREVENTING THE DEFENSE
FROM ADMITTING THE FACTS OF
SEVERAL CRIMES THAT HAD
OCCURRED IN THE AREA BY
VARIOUS INDIVIDUALS, TWO OF
WHOM WERE FITZGERALD AND
ABSOLON.
THERE --
>> YOU WERE VERY CANDID THAT
IF WE ADHERE TO OUR PRIOR
JURISPRUDENCE THAT THOSE
PRIOR ACTS WHICH AREN'T
SIMILAR WOULD NOT COME IN AS
REVERSEABLE ERROR?
>> THAT'S WHAT THIS COURT'S
CASE LAW SUGGESTS.
>> YOU'RE SUGGESTING --
>> REVISIT THAT, CORRECT.
WHAT HAPPENED DURING THE,
THE DEFENSE, FRIDAY TO
CROSS-EXAMINE CAROL HOPKINS
WHO WAS A CRITICAL WITNESS
AND ALEX MATAIS ANOTHER
CRITICAL WITNESS.
>> THOSE PHOTOGRAPHS THAT
THEY WANTED TO, EXAMINE
THESE WITNESSES ON, DID
THESE WITNESSES EVER PICK
THESE PHOTOGRAPHS OUT OF
SOMETHING BEFOREHAND OR,
WHERE DID THESE PHOTOGRAPHS
COME FROM?
I'M HAVING A PROBLEM TRYING
TO FIGURE OUT WHY THESE
PHOTOGRAPHS WITH THESE
WITNESSES?
>> MY UNDERSTANDING IS THAT
THE PHOTOGRAPHS, MY
RECOLLECTION IS THAT, DURING,
THESE WITNESSES WERE SHOWN
THESE PHOTOGRAPHS DURING
DISCOVERY, DURING THE
DEPOSITIONS.
BECAUSE THE DEFENSE WAS
TRYING TO DEVELOP THIS
THEORY THAT THE OTHER, THERE
WERE OTHER INDIVIDUALS, WELL
ACCORDING TO CAROL HOPKINS
THERE WERE TWO OTHER
INDIVIDUALS OUTSIDE THE
STORE WHICH --
>> THIS IS TRUE, MATAIS AT
DEPOSITION ADMITTED THAT THE
PHOTO OF ABSOLON LOOKED LIKE
McDUFFIE.
>> CORRECT.
>> THERE WAS THAT AT THE
DEPOSITION.
>> AND SO DO CAROL HOPKINS.
CAROL HOPKINS --
>> JUSTICE QUINCE'S QUESTION,
YES THEY WERE ASKED ABOUT IT
IN DEPOSITION?
>> CORRECT.
>> BUT, THE PICTURES WERE
SHOWN TO THEM BY THE DEFENSE
ATTORNEY.
IT WASN'T LIKE THESE WERE IN
PICTURES THAT THEY HAD
PICKED OUT AFTER GROUP OF
PICTURES.
>> THAT'S CORRECT.
NO LINEUP OR ANYTHING LIKE
THAT.
THAT'S CORRECT THESE WERE
SHOWN DURING THE DISCOVERY
PROCESS.
WHAT'S IMPORTANT OBVIOUSLY
IS, THE TIME THAT WE'RE
TALKING ABOUT HERE BECAUSE
THE DEFENSE, LIKE I SAID WAS
DEVELOPING THIS THEORY, IT
WAS NOT, THAT MR. McDUFFIE
WAS NOT IN THAT STORE AT THE
TIME THAT THE MURDERS
OCCURRED.
THERE WERE VARIETY OF OTHER
INDIVIDUALS WHO COULD HAVE
BEEN THE PERPETRATOR.
OF COURSE THEY DON'T HAVE TO
PROVE THAT.
ALL THEY HAVE TO DO IS PUNCH
SOME HOLES IN THE STATE'S
CASE.
>> BUT I CAN SEE IT AS TO
FITZGERALD.
FITZGERALD IS NOW TESTIFYING
THEY'RE IDENTIFYING HIM AS
SOMEONE, ESSENTIALLY CONFESSES
AND NOW CAROL HOPKINS SAYS
THAT HE LEAKS LIKE THE
PERSON THAT WAS OUTSIDE.
BUT, I'VE GOT A PROBLEM WITH,
IF ABSOLON IS ONLY THERE
BECAUSE OF, YOU ONLY FIND
THAT PICTURE OF HIM BECAUSE
HE IS ONE OF THE PEOPLE THAT
HAS COMMITTED A PRIOR CRIME
IN THAT AREA.
THE JUDGE HASN'T ALLOWED
THAT REVERSE WILLIAMS RULE
IN, AREN'T YOU ESSENTIALLY,
IF YOU IDENTIFY WHO HE IS,
TO THE JURY, YOU'RE,
ESSENTIALLY GETTING IN
THROUGH THE BACK DOOR.
ON OTHER HAND, AS JUSTICE
QUINCE SAYS IF YOU START TO
TAKE PICTURES OF BLACK MEN,
SAY, LOOK LIKE HIM, WITH
THAT REFERENCE TO THE LINEUP,
WHERE'S, WHERE DOES THAT
STOP AND START?
>> I THINK WITH, WHAT'S
CRITICAL ABOUT MATAIS, IS
THAT, MATAIS THE DEFENSE WAS
ATTEMPTING TO, IMPEACH THE
RELIABILITY OF HIS IN COURT
IDENTIFICATION OF
MR. McDUFFIE.
WHAT HAPPENED WITH MATAIS HE
CLAIMED TO HAVE OBSERVED A
GENTLEMAN, EXITING THE
DOLLAR STORE ON TWO
OCCASIONS LOOKING AT HIM AT
THE FACE, GOING TO A CAR,
GOING BACK IN THE STORE
AROUND 9:25 I BELIEVE IT WAS
ON OCTOBER 25th.
HE WAS NEVER ABLE GIVING A
COMPOSITE TO THE POLICE,
GIVE ANY INFORMATION ABOUT
THE FACE.
HE, THEN, THIS IS AGAIN IN
THE END OF THE OCTOBER.
IN DECEMBER WHEN
MR. McDUFFIE IS ARRESTED
IT'S ON THE TELEVISION.
MATAIS WHEN HE SAW THE
TELEVISION HE SAYS OH THAT'S
THE GUY THAT I SAW.
HE DOESN'T GO TO THE POLICE
WITH THAT INFORMATION FOR
FIVE MORE MONTHS UNTIL
APRIL.
>> I UNDERSTAND THAT.
BUT COULDN'T THOUGH, UNDER
YOUR PHILOSOPHY THEY COULD
HAVE IN THE DEPOSITION GONE
AND FOUND ANYBODY THAT WAS
5'10" OR WHATEVER THAT WAS A
BLACK MAN, AND, START, I
MEAN, COULD THEY JUST START
TO SAY, DOESN'T THIS GUY
REASSEMBLE MR. McDUFFIE OR,
YOU KNOW, SO FORTH, SO ON.
THAT IS THE QUESTION OF HOW
FAR, ISN'T THERE SOME LEEWAY
FOR THE JUDGE TO RESTRICT
THAT AS, STARTING TO CONFUSE
THE ISSUES BECAUSE AGAIN YOU
ONLY PICK ABSALON BECAUSE HE
IS ONE OF THE PEOPLE NOT
THAT WAS THERE ON THE DAY OF
THE INCIDENT BUT WHO
COMMITTED A PRIOR BANK
ROBBERY.
>> WE DON'T KNOW IF HE WAS
THERE ON THE DAY OF THE
INCIDENT BECAUSE THERE WERE
TWO PEOPLE THAT SHE SAW.
WHICH WAS THE OTHER PART OF
THE DEFENSE POINT I THINK
FACT THE MATTER I THINK THE
IS ENTITLED TO TEST THE
REOOIBLT OF THIS
IDENTIFICATION WITH A
PHOTOGRAPH OF SOMEBODY WHO
RE -- RESEMBLES THE
DEFENDANT WHETHER IT'S --
>> LET ME HELP NARROW IT
DOWN.
I THINK THERE IS ONE
ARGUMENT FROM PICKING
SOMEBODY OUT OF THE AIR AS
OPPOSED TO PICKING PEOPLE
WHO ARE KNOWN TO FREQUENT
THIS PARTICULAR AREA WHERE
THE CRIME OCCURRED AND, AND,
LOOK LIKE THE TWO PEOPLE
MISS HOPKINS SAW OUGHT SIDE.
SO ARE YOU, WHICH WAY ARE
YOU GOING HERE?
WHAT IS YOUR ARGUMENT?
AS I SEE A DIFFERENCE AGAIN
BETWEEN IDENTIFYING PEOPLE
WHO FREQUENT THE AREA AND
LOOK SIMILAR, ARE KNOWN, IF
YOU HAD THE ABILITY TO SAY
YES I'VE SEEN THIS FROM
OTHER PEOPLE, SEEN THAT
PERSON AROUND THERE, AROUND
THAT TIME FRAME AS OPPOSED
TO JUST, PULLING SOMEBODY
OUT OF A HAT.
>> I THINK I UNDERSTAND YOUR
QUESTION.
I THINK PROBABLY MY ANSWER
IS A COMBINATION OF BOTH
BECAUSE, AGAIN, THE DEFENSE
DOESN'T HAVE TO PROVE THAT
THIS OTHER INDIVIDUAL WAS
ABSA LON.
ALL THEY WERE TRYING TO DO
IS PUNCH HOLES IN THE
IDENTIFICATION OF MATAIS AND
AGAIN --
>> I THINK YOU GOT A
FRIENDLY QUESTION FROM
JUSTICE BELL.
>> CORRECT.
>> WHAT HE IS SAYING THAT
YOU HAD A HE CAN CONNECTION
FOR ABSALON TO BE ABLE TO
SAY HE IS SOMEBODY WHO COULD
HAVE COMMITTED THIS MURDER.
>> THAT'S WHAT I'M SAYING.
>> LOOKED LIKE McDUFFIE.
HE IN FACT IS CLOSER IN
HEIGHT TO THE PERSON THAT
MATAIS FIRST DESCRIBES.
>> THAT'S WHAT I'M, ABSALON.
--
>> I DON'T KNOW IF IT WAS A
FRIENDLY QUESTION.
>> I MEAN I WAS IN THE
MIDDLE OF RESPONDING BECAUSE
I PERCEIVED IT ALSO AS
FRIENDLY QUESTION.
WE HAVE WITNESS IDENTIFYING
IN A DEPOSITION A PHOTOGRAPH
OF SOMEONE WHO SHE, AND EVEN
THE TRIAL COURT ON SEVERAL
OCCASIONS SAID LOOK
REMARKABLY LIKE
MR. McDUFFIE.
SO WHAT THE DEFENSE WAS
TRYING TO DO HERE, FURTHER
SHAKE MATAIS'S
IDENTIFICATION BECAUSE,
FORGETTING THE, PART A OF
CLAIM TWO WHICH IS THE
SUPPRESSION ISSUE.
ASIDE FROM MATAIS, WE HAVE,
OLIVIA SUSO.
ALL SHE SEES IS BLACK MAN
FROM THE BACK IN THE STORE
AT 9:30.
THAT DOESN'T REALLY TELL US
ANYTHING.
MATAIS WAS CLEARLY CRITICAL
WITNESS HERE.
CERTAINLY HE WAS IMPEACHED.
WHEN YOU HAVE COMBINATION OF
MATAIS BEING CROSS-EXAMINED
WITH A PHOTOGRAPH OF ABSALON
AND CAROL HOPKINS ADMITTING
THERE WERE TWO INDIVIDUALS
WHO LEFT THE STORE, IN FACT
SHE STUCK HER HEAD BACK IN,
PEOPLE ARE OUT HERE, CALL
THE POLICE IF SOMETHING GOES
WRONG HERE.
>> THAT IS CRITICAL ELEMENT.
YOU HAD TWO PEOPLE THAT WERE
THERE AND RAISED SUSPICION
BY MISS HOPKINS.
>> CORRECT.
>> NOW DOES MISS HOPKINS
RELATE IN THE DEPOSITION.
ABSALON LOOKED LIKE THE
OTHER PERSON?
>> YES.
IN HER DEPOSITION, -- THIS
IS FROM SHE WAS IMPEACHED
DURING THE PROFFER.
IN HER DEPOSITION SHE SAID
THAT THEY LOOKED SIMILAR TO
THE TWO MEN, LOOKED SIMILAR
TO ONE OF THE TWO MEN SHE
SAW OUTSIDE THE STORE OF THE
NIGHT IN QUESTION AS SHE WAS
LEAVING?
>> ABSALON?
>> YES.
>> IF THE JUDGE ALLOWED THE
CROSS-EXAMINATION, WOULD THE
JUDGE SAY, HERE IS A
GENTLEMAN, DOES HE LOOK LIKE
McDUFFIE OR WHATEVER IT
MIGHT BE.
WOULD THE, THEN WOULD YOU,
ARE YOU ARGUING THAT YOU
COULD HAVE GONE FARTHER AND
EXPLAINED -- OF COURSE
FITZGERALD WAS ALREADY
IDENTIFIED.
SO THE JURY WOULD KNOW WHO
FITZGERALD WAS.
>> AT THE TIME THIS CAME
UP --
>> THEY WILL EVENTUALLY
KNOW.
AS FAR AS ABSALON AS FAR AS
WOULD THEY ESTABLISH THAT
ABSALON WAS SOMEBODY THAT
COMMITTED ANOTHER CRIME IN
THE AREA?
>> I DON'T KNOW.
THAT WASN'T THE ARGUMENT.
>> THEN YOU'RE GETTING IN
THE BACK DOOR.
>> BUT THAT WASN'T THE
ARGUMENT SO, THERE WAS
NEVER --, IN A DEFENSE CASE,
THE COUNSEL NEVER MADE THE
ARGUMENT THAT, YOU KNOW WE
WANT TO BRING THIS IN NOW
BECAUSE OF COURSE, THE COURT
DIDN'T LET THEM
CROSS-EXAMINE THE WITNESSES
AS TO THE PHOTOGRAPHS OF
ABSLON AND FITZGERALD.
PERHAPS HAD THEY DONE THAT
THAT MIGHT HAVE BEEN
SOMETHING THAT WOULD HAVE
BEEN ADDRESSED.
BUT AT THIS POINT THERE WAS
NO BACK DOORING BECAUSE THE
DEFENSE WASN'T ATTEMPTING TO
GET THAT INFORMATION BEFORE
THE JURY.
ALL THEY WERE TRYING TO DO
IS PUNCH HOLES IN THE
STATE'S CASE AND CERTAINLY
CAST DOUBT ON THE TESTIMONY
OF MATAIS AND HOPKINS WERE
OF THE MYRIAD OF WITNESSES
WERE TWO OF THE MORE
CRITICAL ONE THAT IS THE
STATE PRESENTED.
I WANT TO BRIEFLY TOUCH ON
CLAIM FIVE.
ARGUMENT FIVE.
WHICH AGAIN, IS A RELATIVELY
BRIEF CLAIM BUT IT'S
SOMETHING THAT WANTED TO
BRING TO THE COURT'S
ATTENTION BECAUSE I THINK IT
NEEDS TO BE CONSIDERED,
CERTAINLY IN ACCUMULATION OF
OTHER ERRORS WE SUBMIT OCCUR,
THAT IS ERRONEOUS ADMISSION,
I'M SORRY, NOT CLAIM FIVE.,,
WILLIAMS RULE CLAIM.
PETERSON.
ERRONEOUS AND UNDULY
PREJUDICIAL TESTIMONY OF
DAVID PETERSON WHO WAS SON
OF LANDLORD OF MR. McDUFFIE
BEFORE THE MURDER.
THIS WAS SOMETHING THAT WAS
STRENUOUSLY LITIGATED BEFORE
THE COURT ALLOWED
MR. PETERSON TO TESTIFY TO
SOME IRRELEVANT, VERY
PREJUDICIAL AND VERY, VIAL
COMMENTS THAT MR. McDUFFIE
SUPPOSEDLY MADE --
>> IS THIS, THE RECORDING
THAT HE LEFT, THE MESSAGE?
>> CORRECT.
CORRECT.
>> WAS THE MESSAGE, HOW LONG
BEFORE THE MURDER WAS THE
MESSAGE LEFT?
>> IT WAS SUBSEQUENT -- I
DON'T KNOW THAT IT WAS EVER
ESTABLISHED.
IT WAS ABOUT, I BELIEVE IT
WAS SUBSEQUENT TO THE TIME
THAT PETERSON FILED THE, THE
SUIT TO RECOVER THE MONEY.
WHICH YOU THINK WAS ABOUT
TWO WEEKS BEFORE THE MURDER.
AND SO THE PHONE CALL, I
DON'T RECALL, I DON'T HAVE
IT IN MY NOTES IF THE DAY
WAS SPECIFIC, BUT
MR. McDUFFIE ACKNOWLEDGED
CALLING PETERSON.
TO DISPUTE UNITED STATES NOT
ONLY CALLING BUT HE CALLED
HIM WITHIN A COUPLE WEEKS OF
THE MURDER?
>> CORRECT.
CORRECT.
THAT'S ONE THING.
>> THIS IS NOT SOMETHING
THAT HAPPENED COUPLE YEARS
AGO, ALL WE'RE INTRODUCING
FOR TO SAY HE IS A BAD GUY,
HE, CUSSES ON THE PHONE.
>> CORRECT.
BUT I SUBMIT THAT UNDER THE
FACTS OF THIS CASE, WHAT
MR. McDUFFIE SAID TO HIM AND
CERTAINLY WHAT CAME OUT FROM
PETERSON WAS REALLY
IRRELEVANT.
EVEN IF IT WAS MARGINALLY
RELEVANT IT WAS SO
INFLAMMATORY IT OVERCAME ANY
POTENTIAL PROBATIVE VALUE.
I DON'T KNOW IF YOU WANT ME
TO REPEAT THE COMMENTS IT.
WAS ABOUT PETERSON FATHER
AND BAULT BALTIMORE AND
COULD GET SHOT BY SNIPER.
THERE ARE OTHER COMMENTS I
WON'T REPEAT BUT THEY'RE SET
OUT IN PREVIOUS.
JUDGE FOXWOOD THEY WERE
RELATIVE TO McDUFFIE'S STATE
OF MIND TO THE FINANCIAL
SITUATION.
>> YOU'RE ARGUING THEY'RE
UNDULY PREJUDICIAL TO 403
BUT YOU'RE ARGUING THEY'RE
IRRELEVANT?
>> CORRECT.
>> THAT'S WHERE I HAVE A
PROBLEM.
IT CERTAINLY SHOWS STATE OF
MIND AROUND THE TIME OF THE
MURDER.
AND BEING SO UPSET AT
GETTING EVICT, WHETHER
UNDULY PREJUDICIAL I THINK
YOU HAVE THERE IS A BETTER
ARGUEMENT THERE BUT --
>> WELL, HE DOESN'T, THE
PHONE CALL, FROM WHAT
PETERSON RELATED DOESN'T SAY
THAT McDUFFIE SAID I'M UPSET
ABOUT BEING EVICTED, JUST
INVECTIVE HE GOES IN ON.
>> YOU AGREE, THE FACT THAT
HE'S, UPSET ABOUT THE
EVICTION, THAT HE HAD BEEN
EVICTED, AGAIN YOU SAY A LOT
OF THAT SHOULDN'T COME IN.
BUT LET'S JUST ASSUME, IT'S
THE PART THOUGH, I THINK
WHAT JUSTICE CANTERO IS
SAYING THAT, YOU RILEY NEED
TO SEPARATE THAT IT MIGHT
HAVE SOME RELEVANCE BECAUSE,
IT'S PART AND PARCEL OF HOW,
HOW HE FELT ABOUT HIS
FINANCIAL SITUATION AND THEN
REALLY, ISN'T IT THE ISSUE
MAYBE MARGINALLY RELEVANT
BUT THAT THE PREJUDICIAL
EFFECT, IS SO OUTWEIGHS
ANYTHING.
I WAS THINKING ABOUT THIS.
I'M GOING TO ASK MISS DAVIS
ABOUT IT THE FACT THAT HE
TALKS ABOUT THE SNIPER, THAT
THE BALTIMORE SNIPER AND
THAT THE, EVEN THOUGH THE,
STATE DOESN'T SPECIFICALLY
USE THAT, THE BULLETS IN
THIS CASE WERE ACTUALLY
SNIPER BULLETS.
FIRST OF ALL ANYONE EVER SAY
THAT MADE IT RELEVANT
BECAUSE HE REFERS TO A
SNIPER AND, THERE WAS --
>> I DON'T THINK IT WAS
ARTICULATED LIKE THAT.
I WOULD DEFER TO THE RECORD
FRANKLY.
I DON'T REMEMBER THE
SPECIFIC NATURE.
>> DO YOU THINK THAT ADDS TO
THE PREJUDICIAL NATURE.
>> CERTAINLY WAS ONE OF THE
ARGUMENTS SNIPER INCIDENT
GONE ON CAPTIVATED COUNTRY
AND TERRORIZED THE COUNTRY.
>> THIS IS BLACK MAN AND
WHITE VICTIMS?
>> CORRECT.
CORRECT.
AGAIN THE STATE ALSO BROUGHT
THIS UP AGAIN IN CLOSING
ARGUMENTS.
IT WASN'T SOMETHING THAT WAS
ISOLATED AND PRANCE THE JURY
COULD HAVE FORGOTTEN ABOUT
IT ALTHOUGH I SUBMIT THIS,
THESE TYPE OF COMMENTS EVEN
IF MARGINALLY RELEVANT OR
PROBATIVE TO STATE OF MIND
WERE SO UNDULY PREJUDICIAL
THEY VISION EIGHTED ANY
PROBATIVE VALUE THAT THEY
MIGHT HAVE HAD.
>> YOU'RE MOVING INTO
REBUTTAL.
I KNOW YOU WANTED TO TALK
ABOUT SUFFICIENCY.
>> BRIEFLY SUCH TOUCHING ON
SUFFICIENCY.
THE BRIEF SET ITS OUT.
WE'RE RELYING ON THE COURT'S
DECISION IN BALLARD.
FOR MOST PART THERE ARE
CERTAINLY OTHER CASES.
HARMIO --
>> WHETHER THERE WAS
SUFFICIENT EVIDENCE OR NOT
THERE HAVE TO AGREE THERE
WAS MORE EVIDENCE THAN IN
BALLARD?
>> THERE WAS MORE EVIDENCE
IN THE, LENGTH OF THE TRIAL.
I SUBMIT THAT THE QUALITY OF
THE EVIDENCE --
>> AND ALSO, THIS IS, THIS
ISN'T JUST A CIRCUMSTANTIAL
EVIDENCE CASE, IS IT?
>> I SUBMIT THAT IT'S A
CIRCUMSTANTIAL CASE.
THE PHYSICAL EVIDENCE WE'RE
TALKING ABOUT, TALKING ABOUT
THE MOTIVE AND ALL THAT
OTHER TESTIMONY.
I MEAN, THERE'S --
>> I'M NOT TALKING ABOUT
THAT.
I'M TALKING ABOUT HIS HAND
PRINT FOUND --
>> THAT'S WHAT I'M TALKING
ABOUT.
THAT'S WHAT THIS CASE BOMBS
DOWN TO.
IT'S NOT HIS HAND PRINT BUT
A THIRD OF A PALM PRINT BUT
NO OTHER PALM PRINTS, NO
OTHER FINGERPRINTS, NO OTHER
FORENSIC EVIDENCE.
NOTHING.
>> DIDN'T FITZGERALD, THEY
OPENED THE DOOR ON THIS.
DIDN'T FITZGERALD ACTUALLY
SAY McDUFFIE KILLS, SAID HE
KILLED THEM?
>> HE DID SAY THAT.
HE WAS IMPEACHED.
-- WOUND UP HAPPENING --
>> THAT MAY BE THE FLIMSIEST
AND JURY MAY HAVE FOUND THAT
TO HAVE NO CREDIBILITY BUT
ONCE THAT, ADMISSION IS IN,
HOWEVER INCREDIBLE IT MIGHT
BE WE DON'T WEIGH THAT
CREDIBILITY, DO WE?
>> I SUBMIT, I DON'T KNOW
THAT A, SNITCH TESTIMONY
RESULT QUALIFIES AS DIRECT
EVIDENCE BUT AS OPPOSED TO
CONFESSION FROM THE
DEFENDANT.
>> IT'S SUFFICIENT EVIDENCE.
LET'S FORGET WHETHER IT'S
DIRECT OR CIRCUMSTANTIAL.
>> YOU HAVE TO LOOK CONTEXT
ENTIRE INMATE TESTIMONY.
THERE WAS ONGOING BATTLE OF
THE INMATES HERE AND
SNITCHES.
>> WHAT STRUCK ME IS, HOW
ELSE DO YOU EXPLAIN THE
SUSPECT BEING ABLE TO LOCK
AND UNLOCK SEVERAL TIMES THE
STORE UNLESS IT'S AN
EMPLOYEE?
>> WELL, FITZGERALD FOR
EXAMPLE, KNEW DAWN, HE HAD
BEEN IN THE STORE BEFORE.
HAD DATED AND CHILDREN WITH
DAWNIELL BEAUREGARD'S
SISTER.
THERE WAS, FITZGERALD ISN'T
A NAME SOMEBODY PICKED OUT
OF A HAT.
HE HAD, AS DID ALEX
MATAIS --
>> YOU CAN KNOW AN EMPLOYEE
OF THE STORE WITHOUT HAVING
ACCESS TO THE KEYS TO THE
STORE.
SEEMS TO ME IF SOMEBODY WAS
THERE TO KILL SOMEBODY, ROB
SOMETHING, I HAVEN'T RUN
ACROSS A CASE HERE YET WHERE
THE MURDERER THEN LOCKS THE
DOOR TO THE PLACE, TO A
STORE.
>> THE IMPORTANT PART OF
WHAT YOU'RE SAYING THOUGH IS
THAT THE TESTIMONY ABOUT THE
LOCKING OF THE DOOR COMES
FROM ALEX MAAIS.
>> THAT'S A CREDIBILITY
ISSUE.
THAT'S FOR THE JURY TO
DECIDE WHETHER THAT'S ENOUGH.
I'M --
>> LET ME ASK YOU WHEN THE
POLICE ARRIVED WAS THE DOOR
LOCKED?
>> YES.
I BELIEVE SO.
I BELIEVE SO.
THE DOOR --
>> WERE YOU GOING TO COMMENT
ON CUMULATIVE NATURE OF
THESE OTHER ERRORS YOU
DISCUSSED BEFORE US?
>> I CERTAINLY CAN.
IN TERMS WE'VE GOT
RICHARDSON PROBLEM WITH THE
EXCLUSION OF THE DEFENSE
WITNESSES.
WE HAVE THE DEFENSE BEING
PRECLUDED FROM
CROSS-EXAMINING TWO CRITICAL
PROSECUTION WITNESSES ABOUT
THE PHOTOGRAPHS OF OTHER
PEOPLE WHO THOSE WITNESSES
AND THE COURT ADMITTED
LOOKED LIKE MR. McDUFFIE.
YOU'VE GOT INTRODUCTION OF
THIS VERY INFAMTORY
PREJUDICIAL TESTIMONY FROM
DAVID PETERSON AS WELL AS
SOME OF AT OTHER ISSUES WE
CONTINUE WERE ERROR.
I THINK EVEN IF NOT ALONE,
WARRANT RELIEF, CERTAINLY
CUMULATIVE BASIS I DO THINK
I'M GIVEN PROBLEMATIC NATURE
OF THIS CASE WHERE EVEN THE
LEAD INVESTIGATOR, CANDIDLY
ACKNOWLEDGED THAT IT'S ONE
OF THESE CASES WHERE HE
FINDS IT HARD TO BELIEVE
ONLY ONE PERPETRATOR DID IT
WITH ALL THE MURDER WEAPONS
ALL THIS BLOOD AND, NO
FORENSIC EVIDENCE
WHATSOEVER.
WE HAVE A PARTIAL PALM PRINT
ON A PIECE OF WADDED UP TAPE
BUT NO OTHER FINGERPRINTS ON
THE TAPE AND NOTHING ELSE
TYING MR. McDUFFIE TO THE
ACTUAL MURDERS I DO
SUBMIT --
>> WAS THE STATE'S THEORY
ELIMINATE ANY POSSIBILITY
THERE WAS ANOTHER
PERPETRATOR THAT JUST HASN'T
BEEN FOUND?
>> THEY HAVE NEVER TAKEN THE
POSITION THAT IT WAS ANYONE
OTHER THAN MR. McDUFFIE.
THANK YOU.
>> MISS DAVIS.
>> MAY IT PLEASE THE COURT.
MY NAME IS BARBARA DAVIS.
I REPRESENT THE STATE OF
FLORIDA AND I GUESS I'LL
START WITH THE RICHARDSON
ISSUE GO STRAIGHT TO THE
HARMLESS ERROR.
I LIKE TO POINT OUT THIS WAS
A MASSIVE CASE.
>> BEFORE WE GET TO THE
HARMLESS ERROR, TELL US WHAT
THE, WHAT THIS COURT HAS
SAID ABOUT, IF ANYTHING,
ABOUT STRIKING OF DEFENSE
WITNESSES AS, AS FAR AS
RICHARDSON AND HOW IT'S
ANALYZED.
>> I HAVE NOT FOUND A CASE
WHERE THIS COURT HAS RULED
ON THAT ISSUE.
NORMALLY IT'S THE STATE
THAT'S, GOT THE RICHARDSON
VIOLATION.
>> THOSE SITUATIONS STATE,
USED TO BEFORE, SHOPE, WE
WERE CONCERNED THAT THE
STATE, WAS, PUTTING
SOMETHING IN AND BUT THEN IF
IT WAS A RICHARDSON
VIOLATION, EVEN IF IT WAS
HARMLESS OR, YOU KNOW, IT
WAS, IT WAS STILL, REQUIRING
AN AUTOMATIC REVERSAL.
SO, WHAT, IS YOUR, WHAT IS
YOUR BEST CASE FOR THAT IT'S
STILL, THAT IT'S A HARMLESS
ERROR ANALYSIS WHEN IT'S THE
DEFENDANT THAT HAS A WITNESS
STRUCK?
>> WELL, IN CIPIO, I QUOTE
THIS HAD IN MY BRIEF THIS
COURT SAID THE RULES APPLY
EQUALLY TO THE DEFENSE AND
THE STATE.
AND THAT THE DEFENSE HAS
CONTINUING DUTY OF DISCOVERY
AND, THEY, NOW THIS IS A
PRETTY EGREGIOUS RICHARDSON
THING.
IF YOU WANT TO GO TO
STRAIGHT TO HARMLESS ERROR
SAVE TIME IF YOU'VE MADE UP
YOUR MIND BUT THIS WITNESS
WAS KNOWN TO THE DEFENSE AND,
THEY HAD HIM OUT BEFORE THIS
TRIAL EVEN STARTED LOOKING
FOR THE OTHER RECEIPT.
AND YET THEY NEVER LISTED
HIM, --
>> THEY LISTED HIM FOR
PENALTY PHASE.
>> FOR THE PENALTY PHASE.
>> STATE KNEW ABOUT HIM JUST
DIDN'T KNOW HE IT WOULD BE
PRESENTED FOR THE GUILT
PHASE.
>> YES.
SHOWS UP ON THE DAY OF THE
DEFENSE, WE'RE NOW A MONTH
INTO THE TRIAL.
>> I APOLOGIZE.
LISTING HIM AS A PENALTY
PHASE WITNESS.
WAS HE DEPOSED BY THE STATE?
>> KNOWS.
>> SO WHAT WAS HE GOING TO
TESTIFY ABOUT TO THE
RECEIPTS TO FROM YOUR
KNOWLEDGE?
>> HE DID TESTIFY IN THE
PENALTY PHASE HE HAD BEEN A
FRIEND OF ROY'S FOR YEARS.
HAD BEEN HIS BARBER IN
JACKSONVILLE.
THAT HE WAS A WONDERFUL
PERSON.
THAT HE COACHED LITTLE
LEAGUE.
>> HAD THE DEFENDANT
PROVIDED YOU WITH A SUMMARY
OF HIS STATEMENT?
>> IT --
>> MY QUESTION WAS THE STATE
AWARE WHAT HE WAS GOING TO
TESTIFY TO INTO THE PENALTY
PHASE?
>> YES.
>> EITHER BY STATEMENT OR
DEPOSITION?
>> YES.
THE PENALTY PHASE WITNESSES
THERE WAS A LOT OF DISCOVERY
ON THAT THAT MR. McDUFFIE
HAD COACHED LITTLE LEAGUE
AND --
>> SPECIFICALLY AS TO THIS
GENTLEMAN WIGGINS?
>> NOT THAT I KNOW OF.
NOT THAT I KNOW OF.
>> WAS THERE AN ATTEMPT BY
THE STATE MADE TO HAVE THE
TRIAL JUDGE ALLOW THEM TO
TAKE HIS DEPOSITION WHEN HE
WAS, WHEN IT BECAME APPARENT
HE, WANTED, THE DEFENSE
WANTED HIM TO TESTIFY IN
GUILT PHASE?
>> THE PROSECUTOR WAS JUST
TAKEN ABACK.
>> I UNDERSTAND, UNDERSTAND
THAT.
BUT WHAT HAPPENED THEN?
>> THEN THE JUDGE SAID, I
WANT TO DO A RICHARDSON
HEARING.
HE ASKED, YOU KNOW WAS IT
INADVERTENT, WAS IT WILLFUL?
HOW LONG VERY BEEN TALKING
TO THIS PERSON?
HE SHOWS UP TODAY WITH
RECEIPT THAT THE DAY THE
WITNESSES ARE TESTIFYING.
>> MY RECOLLECTION WHERE WE
CAME IN RICHARDSON WAS, WAY
BACK, WHEN I FIRST GOT HERE,
WE WERE, STILL DEALING WITH,
IT WAS AN AUTOMATIC
REVERSEAL.
THEN THEY CAME DOWN WITH,
SHOPE.
AND THERE, THAT REAL ISSUE
WAS, WHETHER IT WAS
PREJUDICIAL TO THE
PREPARATION OF THE OTHER
SIDE'S CASE.
AND, THE TRIAL JUDGE NEEDED
TO MAKE A DETERMINATION, NOT
ONLY AS TO SURPRISE BUT AS
TO WHETHER IT WOULD ACTUALLY
AFFECT THE TRIAL PREPARATION
FOR THE, THE OTHER, THE
OTHER SIDE.
NOW --
>> YES, SIR.
>> DID THE JUDGE MAKE A
FINDING ON THAT?
>> YES, HE DID.
AND THE PROSECUTOR HAD
ARRESTED, -- THEY ALREADY
RESTED THEIR CASE, TWO WEEKS
OF TESTIMONY.
THE DEFENSE KNEW EVERYTHING
THAT THE PROSECUTION HAD.
THIS WITNESS CAME IN, HE WAS
CALLED AS A WITNESS.
>> BUT YOU CHARACTERIZED
THIS HE WAS TAKEN ABACK.
BLESS REFRESH MY
RECOLLECTION BUT I WAS UNDER
THE IMPRESSION THAT THE
STATE, THE ATTORNEY FOR THE
STATE SAID YEAH I'M
SURPRISED BY IT, IT'S NO BIG
DEAL, I CAN HANDLE IT?
AM I MISTAKEN ON THAT?
>> WELL IT'S MORE THAN WHAT
THEY QUOTED IN THEIR BRIEF?
>> AM I MISTAKEN?
>> I'M ON PAGE 3799.
>> OKAY.
>> TRANSCRIPT WHAT THE
PROSECUTOR SAID I'M TOTALLY
UNAWARE WHAT THIS PERSON IS
GOING TO SAY.
I'M SURE I CAN PROBABLY DEAL
WITH IT, BUT, THE PROBLEM IS,
IT'S A SURPRISE.
IT IS SPRUNG ON THE STATE.
TODAY WE'VE HAD A NUMBER OF
RULINGS THAT HAVE CAUSED US
TO CHANGE THE WAY WE WERE
PREPARED FOR TODAY AND THIS
THRONE INTO THE MIX IT'S
JUST, HOW MANY MORE ARE WE
GOING TO GET HE HAVE THE END
OF THE TRIAL?
>> DO YOU BELIEVE THAT THAT
ANSWER JUSTICE WELLS'S
QUESTION THE INQUIRY AS TO
THE TRIAL PREPARATION THAT'S
WHAT YOU SAY WOULD SATISFY
THAT?
>> YES, SIR.
AND THERE WERE SOME OTHER
THINGS THAT THE PROSECUTOR
SAID.
AND REMEMBER, THIS WAS THE
MORNING THAT THE WHOLE
THEORY OF THE DEFENSE
CHANGED AND THEY WERE GOING
TO START BRINGING IN THE
INMATES WHEREAS THE DAY
BEFORE, THEY WERE GOING TO
START PROFFERING THE INMATE
TESTIMONY AND WHETHER THEY
WOULD TESTIFY.
AND THEN WE HAVE THIS LITANY
OF SIX INMATES COMING IN AND,
THIS, AND THIS MORNING, THIS
HAPPENED THREE WITNESSES
AFTER, AFTER THEY CHANGED
THIS WHOLE THING AND THEY
SAY, NO, WE'RE GOING TO CALL
FITZGERALD HIMSELF AND IF
THAT MAKES THIS TAKES US OUT
OF A CIRCUMSTANTIAL EVIDENCE
CASE WE DON'T CARE AND
BECAUSE WE WANT TO BRING ALL
THE OTHER INMATES IN TO
IMPEACH FITZGERALD.
>> YOU SAID THAT THE TRIAL
COURT INQUIRED AS TO WHETHER
OR NOT IT WAS WILLFUL OR
INADVERTENT AND WHAT WAS THE
DETERMINATION ON THAT?
>> HE SAID, FIRST HE ASKED,
HE ASKED THE STATE HAVE YOU
SEEN THIS?
NO, I HAVEN'T.
IT WAS JUST PUT ON MY DESK
NOW.
THE WITNESS WAS LISTED ASPEN
NALT PHASE, NOT AS GUILT
PHASE.
--
>> CASE LAW SAYS THERE
SHOULD BE INQUIRY AND
DETERMINATION AS TO WHETHER
IT WAS WILLFUL AND
INADVERTENT AND WHAT DID THE
TRIAL COURT DETERMINE ON
THAT?
>> HE THEN TURNED TO THE
DEFENSE COUNSEL AND SAID,
DEFENSE COUNSEL, TELL ME WHY
THIS PERSON HAS SHOWN UP
WITH THIS RECEIPT AFTER THE
STATE'S RESTED AND WE'RE ONE
DAY FOR THE FINISH OF THIS
TRIAL, TELL ME HOW THIS
HAPPENED?
AND THEY SAID, WELL WE'VE
BEEN TALKING TO I AM HAD FOR
A WHILE AND PLAYING PHONE
TAG.
AND, THE OFFICE JUST TOLD
HIM TO SHOW UP THIS MORNING
AND HE BROUGHT THE ONE
RECEIPT BUT HE'S BEEN
LOOKING FOR THE OTHER
RECEIPT.
>> SO DID THE TRIAL JUDGE
DETERMINE IT WAS WILLFUL OR
INADVERTENT?
>> HE SAID, I FIND A
RICHARDSON VIOLATION AND I
FIND PREJUDICE.
>> SO, WE DON'T KNOW WHETHER
HE FOUND IT WILLFUL OR
INADVERTENT?
>> HE DID NOT BREAK IT DOWN
I SAY I FIND YOU DID THIS
WILL FULLY.
I FIND THE STATE DIDN'T HAVE
THIS BEFORE BUT THE
TESTIMONY SHOWS AFTER HE
TOOK THE TESTIMONY, HE SAYS
I FIND A WILLFUL, I FIND A
RICHARDSON --
>> HE FOUND IT WILLFUL?
>> NO, SIR.
I'M ON PAGE 3799 AGAIN.
I BELIEVE THERE IS A
RICHARDSON VIOLATION.
I BELIEVE THE STATE
ESTABLISHED PREJUDICE.
HE SAYS AS TO WHETHER OR NOT
THE STATE CAN REPAIR THE
PREJUDICE, I'D HAVE TO
SPECULATE AND I'M NOT
WILLING TO DO IT AT THIS
POINT IN THE TRIAL.
>> DOESN'T THE RICHARDSON
CASE LAW THEY SAY THE JUDGE
HAS TO DO ALL THAT?
HE HAS GOT TO CONSIDER THE
POSSIBLE SANCTIONS OR,
REMEDIES FOR IT AND, DECIDE
WHICH ONE WOULD BE MOST
APPROPRIATE?
DID THE TRIAL JUDGE DO ANY
OF THAT?
>> NO, SIR.
HE DID NOT GO THROUGH THE
LAUNDRY LIST, SAY WELL WE
CAN DO THIS OR WE CAN DO
THIS OR WE CAN DO THIS?
>> THAT IS WHAT THE CASE LAW
SAYS HE SHOULD DO UNDER
RICHARDSON INQUIRY, RIGHT?
>> REMEMBER WHAT IS
HAPPENING THIS DAY.
WE HAVE NOW ALL THE INMATES
COMING IN FROM PRISON, SIX
OF THEM, AND, THAT MORNING,
THE DEFENSE CHANGED
EVERYTHING AND SAID --
>> IS THAT REALLY KIND OF --
>> AFFECT THIS IS WITNESS.
>> THAT'S THE JUST BECAUSE
YOU'RE GOING TO CALL THESE
OTHER PEOPLE, DOESN'T THAT
REALLY INQUIRY MEAN IT
CHANGES THE WAY YOU APPROACH
THE CASE OR SOMETHING OF
THAT NATURE?
DOESN'T REALLY MEAN, THAT
NOT WHO IS GOING TO COME IN
THE NEXT 15 MINUTES TO
TRIAL.
>> NO, SIR.
BUT IT GOES TO THE
PROCEDURAL PREJUDICE.
AS CIPIO YOU SAID IT'S
PROPER RAL PREJUDICE?
>> DID WE REFER TO IT IN
THAT SENSE?
I'M TRYING TO SEE.
HAVE WE REALLY GONE THAT FAR
IF YOU CALL ONE WITNESS OUT
OF TURN THAT'S SUFFICIENT?
>> IT'S --
>> WHEN DID HE CALL THE
OTHER -- TO TESTIFY ABOUT
LOANS?
>> REMEMBER --
>> WHEN DID HE CALL THE
OTHER FAMILY MEMBERS ABOUT
TESTIFYING ABOUT LOANS?
>> BEFORE AND AFTER
MR. WIGGINS.
>> I THOUGHT WHAT WE HAD
HERE WAS THAT THERE WERE
NUMBER OF FAMILY MEMBERS
THAT TESTIFIED THAT THEY
GAVE HIM MONEY TO RELIEVE
HIM.
>> THERE WERE THREE FAMILY
MEMBERS.
>> THERE WERE THREE?
>> YES.
>> OKAY.
WHEN DID THEY TESTIFY?
>> THE MOM TESTIFIED AND
THEN THE BROTHER.
>> WHEN DID THEY TESTIFY IN
RELATIONSHIP TO THIS
WITNESS?
>> FIRST THE MOM, THEN THE
BROTHER AND THEN MR. WIGGINS.
THEN ANOTHER BROTHER.
>> THEY TESTIFIED ALL OF
THOSE WITNESSES HAD SIMILAR
THINGS TO SAY?
>> OH, WELL, THERE WAS $3800
OF I'M TRYING TO UNDERSTAND
YOUR ARGUMENT ABOUT -- THAT
SOMETHING DRAMATIC CHANGED.
AND THAT THIS WITNESS WAS PART
OF A DRAMATIC CHANGE --
>> NO, NO SIR, I'M --
>> IF I UNDERSTAND IT FROM YOUR
--
>> WHEN YOU ARE LOOKING --
>> HE CALLED THIS WITNESS AS
PART OF THIS GROUP OF FAMILY
MEMBERS.
THAT WERE ALL GOING TO TESTIFY
ABOUT GIVING HIM MONEY.
OR LOANS.
IN ORDER TO PAY HIS DEBT.
>> YES, SIR, AND --
>> IS THAT CORRECT?
I MEAN --.
>> YES, SIR --
>> IS THAT CORRECT.
>> THAT IS HOW IT HAPPENED,
HOWEVER, IF YOU LOOK AT THE
MONEY ORDERS THAT THE STATE HAS
IN THE RECORD, THEY WENT BACK
AND GOT EACH MONEY ORDER
INVESTIGATED THE VALIDITY OF
THAT, REMEMBER, MR. McDUFFY WAS
GOING OUT AND GETTING MONEY
ORDERS, ONE THING THEY SAID,
THE PROSECUTOR SAID, I CAN'T
INVESTIGATE THE VALIDITY OF THE
MONEY ORDER, WHICH IS IN
JACKSONVILLE AND WE HAVE TRIAL
IN DAYTONA BEACH WHICH IS
EXACTLY WHAT THEY HAD DONE AS
THEY HAD -- IS THEY HAD GONE
BACK AND AUTHENTICATED --
>> WELL, COULDN'T -- COULDN'T
THE REMEDY HAVE BEEN BECAUSE
THAT IS A DIFFERENT ISSUE, LIKE
-- I WOULD LIKE YOU TO ADDRESS
THAT, WHICH IS IF THEY HAD
ALLOWED HIM TO TESTIFY THAT HE
HAD LOANED MONEY, DIDN'T ALLOW
HIM TO USE THE $40 RECEIPT, WE
MIGHT HAVE A DIFFERENT
SITUATION AND THAT IS MY
CONCERN.
I CAN SEE THE ISSUE OF, WE
DIDN'T KNOW ABOUT THE
DOCUMENTARY EVIDENCE, NOBODY
CLAIMED THAT THAT -- THERE WAS
A DOCUMENTARY EVIDENCE THAT WAS
THE VAY RELATION -- VIOLATION
BECAUSE IT WASN'T LISTED.
THE WITNESS IS THE -- IS THE --
THIS CONCLUSION OF THE WITNESS
AND THE PROBLEM IS THAT EVEN
THOUGH THE STATE SAYS, I'M SURE
I CAN PROBABLY DEAL WITH IT AT
THIS POINT, IT IS -- THAT
WITNESS, WHO IS A DEFENSE
WITNESS, WILL ASK THE STATE TO
ARGUE IN CLOSING ARGUMENT THAT
ALL HE COULD BRING IN WERE
FAMILY MEMBERS.
AND SO, THAT IS, TO ME, WHERE
YOU HAVE THE ISSUE OF THE --
HOW DID IT REALLY PREJUDICE THE
PREPARATION OF THE OTHER SIDE,
SINCE THEY KNEW ABOUT -- THAT
EVERYBODY -- THEY WERE SAYING
HE DIDN'T HAVE MONEY, SO THE
DEFENSE WAS, YES, WE HAVE A LOT
OF PEOPLE THAT LOANED US MONEY,
AND THEN, YOU HAVE THE DEFENSE
-- THE PROSECUTOR SAYING, I CAN
PROBABLY DEAL WITH IT.
AND NO ONE LOOKING AND SAYING,
WELL, THAT MAY BE -- MAYBE WHAT
IS WE SHOULD DO WHICH IS LET
HIM TESTIFY BUT NOT LET HIM
TESTIFY AS TO THE MONEY ORDER.
WOULD THAT HAVE BEEN A
COMPROMISE?
>> WELL --
BUT SEE THEN THERE WAS ANOTHER
$300 THAT CAME UP DURING HIS
PROFFER.
THAT --
>> BUT THERE -- THEY ONE HAVE
BEEN ABLE TO VERIFY IT AND THEN
YOU WOULD HAVE BEEN ABLE TO
CROSS EXAMINE HIM, SAYING, YOU
KNOW, YOU DOPE HAVE ANY
EVIDENCE OF THAT, DO YOU?
>> EXACTLY.
BUT NOW LET ME COMMENT ON THE
CLOSING ARGUMENT.
THAT IS ONE SMALL PARAGRAPH IN
REBUT CLOSING ARGUMENT IN 71
PAGES OF ARGUMENT.
THIS WAS NOT HAMMERED ON IN
CLOSING ARGUMENT.
AND HE DIDN'T EXACTLY SEE -- IF
YOU READ THAT COMMENT, HE
WASN'T SAYING, ALL THESE FAMILY
MEMBERS ARE LIARS AND
EVERYTHING ELSE, IT IS THAT,
YOU KNOW, THESE PEOPLE WERE
THERE, THEY COULD SEE HIM AND
COULD JUDGE THEIR CREDIBILITY
BUT TO ALLOW THEM TO HAVE KNOWN
ABOUT --
>> ISN'T IT REALLY -- THE
IMPLICATION IS THESE ARE HIS
FAMILY MEMBERS AND THEY ARE
GOING TO TRY TO -- TRYING TO
HELP HIM, AND SO THERE IS NO
REAL OUTSIDER, WHO IS THERE WHO
IS SAYING HE LOANED HIM ANY
MONEY, I MEAN, IT IS THE REAL
IMPLICATION, FROM A STATEMENT
LIKE THAT.
ISN'T IT IN.
>> WELL, YOU HAVE TO REALIZE
THE AMOUNT OF EVIDENCE IS THAT
-- THAT IS IN HERE, I MEAN,
THERE WERE --
>> IT IS NOT REALLY -- A
QUESTION OF THE AMOUNT OF
EVIDENCE, THAT IS HERE.
BUT, IT IS A QUESTION OF THE
DEFENDANT NOT BEING ABLE TO PUT
ON A WITNESS, AND IN THE --
THEN THE STATE USING THAT
FAILURE TO PUT ON THE WITNESS,
TO THEN BOLSTER THEIR OWN CASE.
>> WELL --
AND YOU JUST HAVE TO LOOK AT
THE CONTEXT.
AND THAT -- THIS IS ONE
SENTENCE AND WHAT HE SAYS IS,
OH, WE HAVEN'T SEEN ANYBODY
OUTSIDE -- HE SAID, IT IS
FAMILY MEMBERS, ALL FAMILY
MEMBERS AND HERE THEY ARE.
THE REST OF WHAT HE IS CITING
WAS IN CROSS-EXAMINATION.
FROM THE FAMILY MEMBERS.
SAYING, WELL, DO YOU HAVE ANY
RECEIPTS FOR THIS?
DID YOU KEEP ANY PAPER TRAIL ON
THIS?
BUT THE COMMENT IN CLOSING
ARGUMENT IS NOT THE STATED
SEIZING ON AN EXCLUDED WITNESS.
THESE QUESTIONS CAME IN BEFORE
MR. WIGGINS WAS EVEN THERE.
AND REMEMBER THAT THEY
ESTABLISHED $3800 WORTH OF
LOANS, BOTH TROY AND MR. -- THE
WIFE, MRS. McDISC, MR. McDUFFIE
AND THE FAMILY CAME IN AND
THERE WAS $3800 WORTH OF LOANS
AND WE ARE TALKING ABOUT $40
HERE.
SO, AND JUST -- AS FAR AS THE
HARMLESSNESS ISSUE, THE -- THIS
IS A 4500-PAGE TRIAL.
THIS FINANCIAL STUFF WAS NOT A
FEATURE OF THE TRIAL.
--
>> WHERE WAS THE HOME --
[INAUDIBLE] ABOUT FINANCES AND
HOW CAN YOU SAY -- FINANCIAL
WAS NOT THE -- I MEAN, THIS WAS
-- THE -- STATED IT THROUGHOUT.
>> FINANCIAL WAS ONE PIECE OF
THE PUZZLE.
WHY WOULD ROY DO THIS?
HOW ROY DID THIS WAS THE
FEATURE OF THE TRIAL.
THE INVESTIGATION, THE
TIMELINE.
THE VIDEOTAPES FROM HIM PAYING
CASH, THE MORNING AFTER.
THE VIDEOTAPES FROM HIM AT
MCDONALD'S.
WHICH WAS AN HOUR OFF HIS
TIMELINE.
THE RECONSTRUCTION OF THE
PARTIAL PALM PRINT BY FTLE --
>> I THINK YOU HAVE ESTABLISHED
TO MY SATISFACTION THAT THERE
IS PROBABLY SUFFICIENT EVIDENCE
TO ALLOW THIS TO GO TO THE
JURY.
I WOULD NOT CATEGORIZE THIS
CASE AS THE STRONGEST -- AND I
THINK -- YOU WERE ON THE CASE
EARLIER THIS WEEK, AND THESE
ARE TWO CASES THAT HAVE, YOU
KNOW, A LOT OF BLOOD, VICIOUS
MURDERS, NO BLOOD, EVIDENCE, ON
THE DEFENDANT.
AND SO WE HAVE A SITUATION HERE
WHERE WE REALLY HAVE TO LOOK
CAREFULLY AT ANY ERROR.
I'D LIKE YOU TO MOVE TO THE ONE
THAT CONCERNS ME PROBABLY THE
MOST.
IS THE STATEMENT THAT WAS ILL
LIS IT FROM MR. PETERSON ON THE
--EE LIS IT FROM MR. PETERSON
ON THE VOICE MAIL, WISHING HE
-- McDUFFIE, TELLING HIM HE
WOULD GO UP TO BALTIMORE AND BE
SHOT BY THE SNIPER UP THERE.
AND THEN THE STATE USING THAT
IN CLOSING ARGUMENT TO SAY HE
PICKS UP THIS PHONE AND CALLS
PETERSON AND LEAVES A MESSAGE,
NO REASON WHY THEY -- MAKING
THE PHONE CALL OTHER THANKS I
GUESS, TO BE NASTY AND THEN
GOES ON AND ON ABOUT THIS.
I'M CONCERNED ABOUT THE UNDUE
PREJUDICE AND HOW THAT REALLY,
IF IT IS REL OR MARGINALLY REL.
>> I'LL GRANT AND SAY -- SAVE A
REPRIEVE ON THE OTHER CASE, I
THINK WAS MS. CAMPBELL.
>> OH, WAS IT?
SORRY.
TUESDAY, WITH THE RICHARDSON
CASE, YOU ARE HERE --
>> GETTING LATE IN THE WEEK.
>> AND THE FIRST TIME FOR YOU
THIS WEEK.
>> SO, MR. PETERSON'S COMMENT
AND REMEMBER, THAT THE JUDGE
HAD FIRST -- HE PRESERVED --
REVERBD RULING AND SAID I'LL
SEE HOW THE EVIDENCE PLAYS OUT
AT TRIAL AND WILL SEE IF THAT
COMES IN, AND THE WIFE,
MS. McDUFFIE TESTIFIED, NO, WE
HAVE PLENTY OF MONEY, THIS,
THAT AND THE OTHER AND HAD NO
PROBLEMS AND AT THAT POINT, AND
THE -- THREAT TO MR. PETERSON
WAS THREE DAYS PRIOR TO THE
MURDER.
AND THE -- YOU ACTUALLY THINK
IT COMES IN NOT TO SHOW AS A
THREAT, I MEAN, ISN'T THAT THE
CLASSIC PRIOR ACT OF MISCONDUCT
THAT NEEDS TO BE EXCLUDED, NOT
INCLUDED.
>> NO, NOT AT ALL.
>> WHAT IF HE HAD BEAT -- THAT
DAY, THREE DAYS BEFORE, SUCH
DIRE CIRCUMSTANCES, HE BEAT HIS
WIFE UP?
YOU KNOW,?
GOT TRUNK AND BEAT HIS WIFE UP,
WOULD THAN ADMISSIBLE TO SHOW
HE WAS REALLY -- EVEN THOUGH HE
LOOKED LIKE HE WAS FUNCTIONING,
GREAT, WENT TO TRAINING,
WORKING ALL DAY, THAT HE WAS
REALLY FALLING APART.
>> THAT IS NOT RELEVANT.
THIS IS, MR. PETERSON FILED THE
LAWSUIT, THREE DAYS BEFORE THIS
MURDER.
AN EVICTION LAWSUIT ASKING FOR
ATTORNEYS FEES FOR -- AND THE
FEES WERE EXCESSIVE.
MR. McDUFFIE SAID, FOR $1800
AND WHEN HE GOT WIND OF THAT,
HE CALLED HIM UP.
AND YELLED AT HIM, NOW, THE
WIFE IS SAYING WE HAVE NO MONEY
PROBLEMS --
>> WHY DIDN'T IT STAY -- THE
STAY LIMIT HIM TO THAT
STATEMENT INSTEAD OF THE
VULGARITY, WHO DIDN'T THE STATE
LIMIT THE PETERSON'S TESTIMONY
TO EXACTLY THAT, DID YOU NOT
RECEIVE A NASTY PHONE CALL WITH
A LOT OF -- INVEKTIVES IN IT?
>> WHAT WAS THE PURPOSE BEHIND
THE --
>> TO SHOW THE EXTENT OF THE
DESPERATION OF THE MENTAL STATE
AND THIS WAS OFFERED TO SHOW
MENTAL STATE, AND NO --
>> DO THINK YOU HAVE DONE THAT
AGAIN WITHOUT THE SUBSTANCE.
>> COULD HAVE BUT DIDN'T AND
THE ISSUE NOW IS, DOES IT THROW
OUT 200 PIECES OF THAT EVIDENCE,
RELEVANT TO MENTAL STATE AND
THE EXTENT OF HIS DISTRESS IS
ALSO RELEVANT TO MENTAL STATE
BECAUSE THREE DAYS LATER HE
KILLED --
>> SURELY --
IT IS NOT -- I MEAN,.
>> BEG YOUR PARDON.
>> THE COMMENTS SHOWED THAT HE
WAS A PRETTY BAD ACTOR.
AS FAR AS THE LANGUAGE THAT HE
USED AND THE THREATS THAT HE
MADE.
ARE YOU SAYING, FOR INSTANCE,
THAT IF HE HAD SAID TO MOORE
PETERSON THAT YOU BETTER KEEP
YOUR CHILD WITH YOU, YOU KNOW,
ALL THE TIME NOW, AND BE SURE
THAT THE CHILD DOESN'T GET
SEXUALLY ATTACKED OR SOMETHING,
THAT ANYTHING HE SAID TO
MR. PETERSON THEN OF THIS
CHARACTER TO SHOW THAT HE WAS
NOT A NICE PERSON, BASED ON
BOTH THE THREAT ABOUT HIM BEING
SHOT BY THE SNIPER IN BALTIMORE
AND THEN THE VILE LANGUAGE THAT
WAS USED, WHAT WOULD A JURY
TEND TO DO WITH LANGUAGE LIKE
THAT?
WENT THEY CONCLUDE THIS
DEFENDANT WAS A PRETTY BAD GUY,
HAD A FILL THIS MOUTH AND WAS A
PRETTY BAD GUY AND ISN'T THAT
THE THING YOU ARE TRYING TOO,
VOY IN THESE TRIALS IS NOT HAVE
A JURY JUST FIND HIM GUILTY IN
WHATEVER CIRCUMSTANTIAL
EVIDENCE OR WHATEVER, BECAUSE
THEY DON'T LIKE HIM?
AND ANYBODY THAT HEARD THIS,
DON'T YOU THINK, THE NATURAL
INCLINATION WOULD BE THAT I
DON'T LIKE THIS GUY AND I DON'T
KNOW WHETHER HE COMMITTED THE
CRIME BUT I DON'T LIKE HIM,
AFTER HEARING WHAT HE HAD TO
SAY AND THE THREATS THAT HE
MADE TO THIS LANDLORD WOULDN'T
THAT BE A NATURAL CONCLUSION.
>> I AGREE THERE IS A LINE FOR
-- WHERE IT BECOMES MORE
PREJUDICIAL THAN PROBATIVE AND
THIS IS NOT IT, YOU HAVE TO
REMEMBER, HE TESTIFIED AND THE
JURY WAS ABLE TO SEA HIM
PERSONALLY, SEE HIM TESTIFY,
AND LISTEN TO HIM.
AND IF THEY DIDN'T LIKE
MR. McDUFFIE IT WAS BECAUSE OF
HIS TESTIMONY BECAUSE HE WAS
TALKING ABOUT WEARING $600
SHOES AND I MEAN, HE TESTIFIED
SO YOU CAN'T SAY, OH, WELL, HE
IS A BAD PERSON.
HE WAS UP THERE.
THEY CAN ASSESS HIS CREDIBILITY
LIKE THAT.
AND THE TRIAL JUDGE MADE A
RULING AFTER CONSIDERING IT,
AFTER RESERVING RULING AND
SEEING WHAT THE DEFENSE -- WHAT
THE CROSS-EXAMINATION BROUGHT
OUT ON THE WIFE AND RULED, I'M
GOING TO LET IT IN.
>> THE CRITERIA IS NOT WHETHER
THE PARTICULAR DEFENDANT
TESTIFIES OR NOT.
, IS IT NOT THE PREJUDICE OF
THOSE STATEMENTS.
>> WELL, AND I --
>> HE COULD COMING UP AND
TESTIFY THEY LIKE HIM OR NOT.
THAT IS NOT THE TEST, IS IT.
>> I THINK YOU HAVE TO --
>> IS THAT THE TEST?
ISN'T IT THE SUBSTANCE --
>> NOT LIKE THE DEFENDANT, I
JUST SAID IF THE DEFENDANT
TESTIFIED AND THEY HAD AN
OPPORTUNITY TO SEE HIM AND
JUDGE HIM NOT FROM ONE
STATEMENT IN 45 -- AND.
>> YOU ARE GIVING REASONS WHY
THEY MAY NOT HAVE LIKED HIM OR
EVALUATED HIS CREDIBILITY AND
ALL OF THAT.
BUT THERE IS PROPER WAYS TO DO
THAT, AND YOU HAVE DESCRIBED A
PROPER -- THE PROPER WAYS WITH
HIM TESTIFYING OR WHATEVER.
BUT ISN'T THIS AN IMPROPER WAY
TO SUGGEST TO THE JURY THAT IN
ADDITION TO THE FACTS THAT HE
-- WE HAVE EVIDENCE AS TO
WHETHER OR NOT HE COMMITTED
THIS CRIME OR NOT, HE ALSO HAS
A FILL THIS MOUTH AND HE HAS
MADE TERRIBLE THREATS AGAINST
SOMEBODY ELSE.
NOW -- AND THEREFORE, WE WANT
YOU TO CONSIDER THAT, TOO.
ISN'T THERE CASE AFTER CASE
THAT HAS SUGGESTED THAT IS
IMPROPER IF.
>> HOWEVER IF IT IS RELEVANT TO
MENTAL STATE AND THE
DESPERATION AND HIS VOLATILITY,
OF HOW ANGRY HE IS, ABOUT THIS
JUDGMENT AND BEING EVICTED FROM
THAT HOUSE, SHORTLY BEFORE
THESE MURDERS.
>> APPARENTLY -- IT WAS AS SUCH
THAT HE GOT ANOTHER JOB, IS
THAT CORRECT.
>> HE WAS SUPPOSED TO START A
JOB WITH COCA-COLA COMPANY THAT
PAYS MORE MONEY THE VERY
FOLLOWING MONDAY?
>> ON MONDAY, BUT, SIR, HE HAD
BEEN EVICT AND HIS CAR
REPOSSESS AND THIS MAN WAS NOW
FILING EVICTION PROCEDURES AND
THE -- CHARGING THE SON -- THE
SON WAS AN ATTORNEY AND --
>> IF HE KILLED THE GUY, YOU
KNOW, -- IF HE THEN KILLED
SOMEBODY IN THE GUY'S FAMILY
THEN YOU HAVE DIRECT RELEVANCE
THAT HE MADE A THREAT, ANIMUS
TOWARDS THAT PERSON.
BUT ANIMUS TOWARDS ANOTHER
PERSON AND WANTING HARM TO COME
TO THAT OTHER PERSON GOES
BEYOND JUST THE FACT THAT HE IS
IN, YOU KNOW, FINANCIALLY IN
BAD SHAPE AND THE STATE HAD
MANY WAYS TO DISPROVE THAT.
I MEAN -- AND AGAIN, I DO TAKE
EXCEPTION WITH YOU SAYING IT
WASN'T A MAJOR FEATURE OF THE
STATE'S CASE.
THEY HAD MANY EXPERTS -- MANY
WITNESSES TO HE HAVE TO THIS
SITUATION.
SO, I JUST DON'T -- ARE YOU
SAYING THAT YOU DON'T RECOGNIZE
THE PREJUDICIAL IMPACT AND
MARGINAL RELEVANCE?
THAT IS WHAT IS --
>> TRYING TO UNDERSTAND.
>> I AM SAYING THAT ALL
EVIDENCE IS PREJUDICIAL.
AND DID CROSS THE LINE --
>> IS THIS MARGINALLY RELEVANT
OR VERY REL.
>> IT IS VERY REL, BECAUSE IT
IS THREE DAYS BEFORE THE MURDER,
AND THIS MAN HAS FILED EVICT
PROCEEDINGS AND HE HAS BEEN
EVICT FROMD HIS HOUSE AND CAR
REPOSSESS AND CALLS THE MAN UP
AND THREATENS HIM, THE CASE OF
BROOKS SAYS THREATS ARE
RELEVANT.
>> HELP ME UNDERSTAND THIS.
THE PREJUDICE ASPECT.
WHAT WAS TO MAKEUP OF THE JURY
RACIALLY?
MY POINT IS YOU HAVE TWO WHITE
VICTIMS --
>> I DON'T KNOW.
>> I BLACK -- DID YOU HAVE A
SNIPE -- WAS THIS DURING THE
SNIPER INCIDENT?
EXCUSE ME.
>> AND, THERE WAS NO CONNECTION
MADE BETWEEN THE BULLETS
MR. McDUFFIE USED AND THE
SNIPER INCIDENT.
>> NO, I'M SAYING WHAT'S THE
SNIPER INCIDENT ONGOING -- AN
ONGOING EVENT IN BALTIMORE AND
WASHINGTON, D.C. WHEN HE MADE
THE STATEMENT?
>> I THINK IT WAS.
AND I THINK THAT IS WHY HE MADE
THE STATEMENT.
SO I -- IT HAD TO HAVE BEEN --
>> ISN'T THAT PREJUDICIAL WHEN
YOU HAVE A WHOLE COUNTRY
CONCERNED ABOUT THE BRAND --
RANDOM KILLINGS OF PEOPLE BY
TWO BLACK GENTLEMEN AND A BLACK
DEFENDANT, AND TWO WHITE
VICTIMS AND I DON'T KNOW WHAT
THE MAKEUP OF THE JURY IS.
>> APPARENTLY YOU DON'T KNOW.
BUT, ISN'T IT PREJUDICIAL?
>> YOU KNOW, I HADN'T PUT THAT
TOGETHER, I'M SORRY.
AND HE DIDN'T ARGUE THAT
EITHER.
SO APPARENTLY -- I DON'T KNOW,
IF WE WERE THERE AT THE TIME,
MAY HAVE BEEN --
>> LET ME LEAD YOU TO THIS --
>> -- LET ME ASK THIS QUESTION.
I KNOW THAT THERE WAS THE PALM
PRINT ON THE TAPE.
NOW THIS DOLLAR GENERAL, DID IT
HAVE DUCT TAPE IN IT.
>> YES.
>> AND SO AND HE HAD BEEN AN
EMPLOYEE AT THE STORE FOR AT
LEAST A COUPLE OF DAYS.
IT IS A REASONABLE -- THIS IS
REASON NAL INFERENCE THAT HE --
GOT HIS PRINTS ON THAT TAPE.
DURING THE COURSE OF HIS
EMPLOYMENT AS OPPOSED TO THE
COURSE OF THE MURDER, IS IT NOT.
>> NO, SIR, BECAUSE THE PALM
PRINT WAS 30 INCHES FROM ONE
END AND 40 INCHES FROM THE
OTHER.
AND WHEN HE WRAPPED DARNELL'S
HANDS UP THE MEDICAL EXAMINER
SAID SHE WAS COMPLIANT AND HE
WRAPPED THE TAPE AROUND AND
AROUND AND AROUND AND THE
MEDICAL EXAMINER MARKED IT AND
CUT IT OFF.
KNOWING THAT THERE COULD BE
FINGERPRINTS, FTLE AND -- FDLE
AND THE RECONSTRUCTION IS IN
THE EXHIBITS AT 773 AND 765,
AND FTLE TOOK ALL THE FRACTURE
MARKS AND PUT THE PIECE OF TAPE
TOGETHER AND THEN DUSTED IT FOR
PRINT AND THE PALM PRINT WAS
RIGHT IN THE MIDDLE OF THE TAPE
AND THE BIGGEST CIRCUMFERENCE
OF THE DUCT TAPE --
>> WAS THERE ANY OTHER PRINTS
ON THAT TYPE.
>> NO, SIR.
>> NONE.
>> NO.
>> AND -- AND WAS THERE ANY
OTHER PHYSICAL EVIDENCE TYING
THIS DEFENDANT TO THOSE VICTIMS?
>> ANYTHING, BLOOD, WAS BLOOD
EVER FOUND IN THIS CAR OR
AUTOMOBILE OR ANYTHING.
>> NO, BUT REMEMBER THEY DIDN'T
SEARCH HIS HOUSE FOR TEN DAYS,
AND THE SHIRT THAT HE WAS
WEARING AT MCDONALD'S WHICH
WOULD HAVE BEEN THE SHIRT THAT
HE WAS WEARING, THE STATE NEVER
POINTED.
>> WAS THERE ANY EVIDENCE IN
EITHER THE CAR OR THE STATE
THAT SOME TYPE OF -- I THINK
LYNN MINT OIL OR WHATEVER
REMOVES BLOOD WAS USED --
LINAMENT OIL --
>> NO, THEY TRIED TO SHOW THE
MCDONALD'S VIDEOTAPE AS THAT
BEING THE SHIRT THAT WAS SEIZED
AND IT WAS NOT.
SO, HE WAS WITH CAROL -- I MEAN,
WHEN CAROL HOPKINS LEFT HE WAS
WITH DARNELL AND JANICE, THE
LAST PERSON WITH THEM.
HE WAS THE ONLY PERSON --
JANICE HAD THOUGH KEYS.
WE HAVE OLIVIA SEEING HIM LEAVE
AT 9:20, THE LADY HEARING THE
GUN SHOTS AT 9:15.
AND HE WAS THE -- HE WAS THE
ONLY ONE THERE, WITH THEM,
OLIVIA --
>> WE HAVE PHOTOGRAPHS IN THE
RECORD.
>> OF THE DOLLAR STORE.
>> OF THE VICTIMS AND THE
BLOOD?
>> YES.
>> OKAY.
LET ME ASK ONE OTHER QUESTION.
THIS FITZGERALD TESTIMONY, CAME
OUT DURING THE
CROSS-EXAMINATION OF THAT
WITNESS?
IS THAT CORRECT.
>> AS TO THE -- WHEN HE SAID
THAT THE DEFENDANT HAD SAID
THAT HE HAD MURDERED THE
VICTIM.
>> YES.
>> AND THAT -- IN THAT
CIRCUMSTANCE.
>> HE WAS CALLED AS A DEFENSE
WITNESS.
>> RIGHT.
>> BECAUSE THEY WANTED -- THEY
WANTED TO PRESENT A LOT OF
INMATE TESTIMONY THAT
FITZGERALD, WHO IS WHITE, HAD
REALLY COMMITTED THIS MURDER
AND IN ORDER TO CALL THE OTHER
INMATES TO SAY FITZGERALD
CONFESSED TO THESE OTHER
INMATES THEY HAD TO CALL
FITZGERALD TO IMPEACH HIM, SO
THEY CALLED FITZGERALD AND, YOU
KNOW, TRIED TO MAKE IT LOOKS
LIKE HE COULD HAVE BEEN IN THE
AREA, HE COULD HAVE DONE IT.
THE TWO WITNESSES SAW A BLACK
MAN IN THE STORE.
AND THEN THE FITZGERALD SAID,
NO, BUT McDUFFIE CONFESSED TO
ME AND THE DETAILS HE SAID IS
HE GOT THE ONE GIRL BACK THERE
AND LURED JANICE BACK THERE.
TO -- BECAUSE THERE WAS A $50
DISCREPANCY IN THE TALLY.
HE DUCT TAPED DARNELL, AND PUT
HER ON THE FLOOR AND GOT --
>> FITZGERALD, BEEN DEPOSED.
>> FIT GERALD, OH, YES.
OH, YES.
>> HAD NOT COME OUT DURING HIS
DEPOSITION.
>> OH, NO.
EVERYBODY KNEW THAT
MR. McDUFFIE HAD CONFESSED TO
MR. FITZGERALD.
>> IT DID COME OUT.
>> YES.
BUT THE STATE WASN'T GOING TO
CALL HIM.
THE DEFENSE CALLED HIM.
>> WHAT HAPPENED --
>> TRIED TO IMPEACH HIM WITH
EVERYTHING.
BEG YOUR PARDON.
>> WHAT HAPPENED TO THE GUN.
>> NEVER FOUND.
NEVER FOUND AGAIN.
>> TAPER TYING HIM TO A GUN?
>> WELL, THEY NEVER FOUND THE
GUN.
>> NO, BUT DID THEY SHOW HE
OWNED A GUN OR HAD A GUN THAT
WAS OF SIMILAR CALIBER.
>> NO, SIR. BUT LET ME, IF I --
I HAVE TEN SECONDS --
>> YOU ARE BEYOND -- JUST
RESPOND TO THE QUESTION AND --
FINALIZE YOUR --
>> DID NOT FIND THE GUN.
>> DID NOT FIND THE GUN AND DID
NOT ASSOCIATE HIM WITH THE GUN?
>> WELL --
>> HAVE ANY WITNESSES THAT
SHOWED THAT HE OWNED A HANDGUN?
AND IT WAS THAT HE SAME CALIBER
THAT'S GUN USED IN THIS CRIME
OR HE HAD POSSESSION OF ONE OR
ACCESS TO ONE?
OR ANY --
>> HE AND HIS WIFE TESTIFIED
THAT HE DID NOT CARRY A GUN.
>> WELL, I MEAN, POLICE, IN
THEIR INVESTIGATION SHOWED --
>> NO, BUT THEY FOUND A LOT OF
OTHER THINGS, SO I WOULD ASK
THE COURT TO READ MY BRIEF ON
THIS ISSUE, AND AFFIRM THE
TRIAL COURT.
>> THANK YOU VERY MUCH.
>> REBUTTAL?
>> JUST BRIEFLY.
>> DOWN TO THE END, SO...
>> LAST POINT.
THE RECORD IS BE A SEPTEMBER OF
ANY EVIDENCE MR. McDUFFIE HAD A
GUN WHICH BEGAN IS WHY I THINK
THE PETERSON --
>> .22-CALIBER HANDGUN.
>> NO GUN, WHICH IS -- AGAIN
WHY THE PERSON TESTIMONY ABOUT
THE SNIPER IS MORE SIGNIFICANT.
>> I UNDERSTAND THAT THE --
MR. FITZGERALD'S TESTIMONY WAS
NO SURPRISE.
>> DO THE COUNSEL OR --
>> I WAS TRYING TO LOOK IN MY
BRIEF, THERE WAS SOMETHING THAT
CAME UP, IF MEMORY SERVES, I
BELIEVE IT WAS FROM FITZGERALD.
THAT DIDN'T COME OUT IN HIS
DEPOSITION.
>> THAT WAS PRETTY SIGNIFICANT
STUFF IF IT CAME OUT FOR THE
FIRST TIME ON
CROSS-EXAMINATION.
>> BUT ITS IN MY BRIEF, WHERE
THAT HAPPENED.
AND WE HAVE OTHER CASES FROM
THIS COURT WITH REGARD TO HAND
PRINTS, FINGER PRINTS PRINTS ON
OBJECT AT A CRIME SCENE AN
EXPLANATIONS FOR HOW THEY GOT
THERE AND WHERE DOES THE CASE
FIT IN TO THAT, ONE FOR EXAMPLE
AN AIR PRODUCT AND ONE WAS THE
DISCUSSION, SOMEONE'S HANDS
KOOCHB ON THAT IN THE STORE AND
WHERE DOES THE CASE FIT.
>> IT FITS -- IN TO THOSE CASES,
BECAUSE IT WAS -- FIRST OF ALL,
THE WAY THAT THE TAPE -- THE
THIRD OF THE PARTIAL PALM PRINT
WAS LOCATED WAS NOT ON HIS
PRISTINE PIECE OF TAPE, IT WAS
A ROLLED-UP WAD THAT HAD TO BE
UNDONE AND THEN WAS CUT UP AND
THAT IS WHEN THEY FOUND THE
PARTICULAR 1/3 OF THE PALM
PRINT.
SO THAT WAS AN ISSUE IN TERMS
OF THE WAY THAT WAS PRESENTED.
THE OTHER ISSUE IS WE HAVE
MR. -- MR. McDUFFIE TESTIFIED
THAT PRIOR TO CLOSING, A WOMAN
HAD COME INTO THE STORE THAT
HAD A PREVIOUS CONTACT WITH
MS. BEAUREGARD AND SHE
APPARENTLY SAID SHE COULD HAVE
BOXES IN THE BACK TO HELP E HER
MOVE AND HE WENT INTO THE BACK
ROOM WITH HER AND HELPED HER
PUT THE BOX TOGETHER, WITH
TAPE.
WITH DUCT TAPE FROM THE STORE.
AND THE DUCT TAPE WAS CUT AND
HE PUT PIECES ON WITH A
DETERGENT BOTTLE, FOUND IN THE
STOREROOM AND THAT IS WHERE HE
SAID HE PUT THE PIECES OF TAPE.
>> LET ME JUST, JUST -- BUT,
THAT IS WHY IT IS SIGNIFICANT.
WHERE IS THE -- IT FOUND ON THE
TAPE THAT IT IS NOT FOUND AT
THE VERY BEGINNING.
>> B CORRECTED BUT THE
TESTIMONY FROM HIM WAS THAT HE
HAD UNROLLED THE TAPE AND MADE
IT PIECES, AND LIKE WHEN YOU
MOVE INSTEADED OF CUTTING THE
TAPE AS YOU CUT THE TAPE UP
BEFOREHAND YOU HAVE TO --
>> LEFT IT THERE?
>> I MEAN --.
>> WELL, THAT IS -- I MEAN,
THAT IS -- YOU KNOW,.
>> THAT IS WHAT THE TESTIMONY
WAS, WHAT THE TESTIMONY WAS.
>> AND TESTIMONY OF THE MEDICAL
EXAMINER OR WHOEVER TESTIFIED
FOR THE POLICE, THEY DIDN'T SAY!!TE
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