The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

State of Florida v. Virginia Larzelere

SC05-611 | SC06-148


ALL RAISE O YEA THE SUPREME COURT OF FLORIDA IS NOW NO SESSION.ALL THOSE HAVING BUSINESS BEFORE THIS COURT SHALL NOW GIVING ATTENTION AND YI.DE SHALL BE HEARD GOD SAVE THE UNITED STATES, GREAT STATE OF FLORIDA THIS HONORABLE COURT.#,,.
GOOD MORNING.GOOD MORNING.GOOD MORNING.
LADIES AND GENTLEMEN THE FLORIDA SUPREME COURT PLEASEBE SEATED..
GOOD MORNING FRIENDS HE WELCOME TO ARTICLE ARGUMENT CALENDAR FLORIDA SUPREME COURT FOR FRIDAY SEPTEMBER 21ST THE FIRST CASE ON OUR CALENDAR THIS MORNING, IS THE STATE OF FLORIDA VERSUS LARZELERE.
VERY GOOD.
MAY IT PLEASE THE COURT MY NAME BARBARA DAVIS I REPRESENT THE STATE OF FLORIDA, THIS IS A STATE APPEAL BECAUSE THE TRIAL COURT FINDINGS AND FACT ARE NOT SUPPORTED BY THE RECORD,HIS FINDING OF -- SUF -- HE!!$$!!HE99DEFICIENT PERFORMANCES NOT SUPPORTED PREJUDICE ANALYSIS FLAWED WE ARE ASKING THE COURT TO CONDUCT DE NOVO RV OF DEBT PERFORMANCE AND PREJUDICE I WILL GO THROUGH FACTS NOT SUPPORTED BY THE RECORD.
THIS A CASE WHERE THERE WAS NOTHING PRESENTED IN MITIGATION!!$$!!!!!!!!!!!!!!!!!!MITIGATION.
AT THE PENALTY FAZE.
AFTER A REASONABLE INVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION, AND STRATEGICDECISIONS THEY HAD WITNESSNESS THE HALL BUT WHEN THE STATE REBUTTAL WITNESS APPEARED AND THE MRS. LARZELERE$$'S SISTER SAIDTHE STATE IT WERES INS.
WOULD YOU SAY AFTER AN INVESTIGATION AS I READ THISRECORD SEEMS TO ME THAT THE THIS ATTORNEY DIDN'T EVEN START WITH A BASIC INVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION, OF -- THE OTHER FAMILY MEMBERS.
DID THEY DO TALK TO THE FAMILY MEMBERS AND THAT IS THAT IS WHY IT IS I'M SAYINGI'M SORRY.
THEY DID TALK TO THAT HE FEM MEMBERS AND THAT IS WHY I'M SAYING,THESE -- FACTS ARE NOT SUPPORTED BY THE RECORD, I CAN GIVE YOU THE CITES.
WHICH FAMILY MEMBERS DID THEY TALK TO SPECIFICALLY ABOUT PENALTY FAZE.
JANET ATKINSON JESS KAO THE DAUGHT, JANET!!$$!! JANET STR JESSICA DAUGHTER IN THE HALLWAITING TO TESTIFY AT PENALTY FACE THE EX-HUSBAND SHOWED UP AS STATE REBUTTAL WITNESS THEY DECIDED NOT TO CALL WITNESSES.
JUSTICE CANTERO HAD A QUESTION.
DID THE -- MAKE A CREDIBILITY!!$$!!!!!!!!!!!!!!!!!!!!CREDIBILITY, DECISION, ABOUTTHE TESTIMONY OF ONE OF THE LAWYERS, I BELIEVE IT WAS HOWE OR MAYBE BOTH LAWYERS?WHAT WAS THE TRIAL $$COURT'S CONCLUSION AS TO THEIR CREDIBILITY!!$$!!!!!!!!!!!!!!!!!!!!CREDIBILITY?
I DON'T THINK THE TRIAL COURT MADE ANY CREDIBILITY DETERMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!DETERMINATION, THERE WAS MR. HHAUS AND WILKINS TWO DEFENSE TEN ORS I DON'T SEE ANYWHERE WHERE HE MADE A CREDIBILITY DETERMINATION, THEIR TESTIMONY WAS UNCONTRADICTED BECAUSE MRS. LARZELERE DID NOT TESTIFY ATTHE EVIDENTIARY HEARING.
DIDN'T THEY CONTRADICT THEMSELVES OR EACH OTHER THAT IS IN TERMS WHO HAVE BRINGS MARLY REINTOES -- RESPONSIBLE FOR THE PENALTY FAZE NO HE WAS GOING TO DO IT NO HE WAS GOING TO DO IT.
THE TRIAL COURT CITED INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!INFORMATION, THAT SAID THAT,BUT THEIR TESTIMONY$$!!!!IES WERE THAT MR. HOWELL'S WHO WAS EXPERIENCED!!$$!!!!!!!!!!!!!!!!!!!!EXPERIENCED, WAS -- RESPONSIBLE FOR THE PENALTY FAZE DECISIONS, BOTH DID THEINVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION, AND THEY BOTHTALKED TO THE FAMILY, AND BUT MR. HOWELL'S WAS IN CHARGE OF THE DECISIONS BECAUSE HE HAD MORE EXPERIENCE, THAT WAS NOT INCONSISTENT, THEY WERE -- AND!!$$!!!!AND, THERE IS A VERY FINE LINE HERE, THEY BOTH REMIT!!$$!!!!!!!!REMITTED HER, MR. -- HAWES HAD MORE EXPERIENCE WITH PENALTY PHASES HE WAS NICK DECISIONS BUT IT WAS GROUP EFFORT, THEY INCLUDED HER INABSOLUTELY EVERY DECISION.
MY CONCERN HERE IS THE REALITY OF THE FACT THAT WE HAVE TWO LAWYERS WHO DID THERECORD INDICATES HAVE VERY BAD ADICTION, WILKINS HE HADA BAD ALCOHOL PROBLEM, THEY LATER DISBARRED HE SORT OF EIGHT YEARS IN JAIL FOR -- AND WE HAVE A RECORD HERE WHICH DEMONSTRATES THAT THEYMAY HAVE TALKED TO THESE FAMILY MEMBERS BUILT IT I WAS ON THE DAY THAT THAT I SHOWED UP FOR THE PENALTY PHASE, THEY DIDN'T GO OUT, AND PRESENT THIS BACKGROUND TO A MENTAL HEALTH EXPERT, AND THAT THE TRIAL JUDGE HADALL OF THIS IN FRONT OF HIM AND HE IS AN EXPERIENCED TRIAL JUDGE.AND THERE JUST -- HE MADE A DETERMINATION THAT THIS WAS NOT A PENALTY PHASE, THAT WAS SUFFICIENTLY RELIABLE, BECAUSE OF ALL THESE PROBLEMS WITH THE LAWYERS.AND IT LOOKING TO ME LOOKS TO ME LIKE THAT IS A DETERMINATION THAT THERE I THINKS NO WAY FOR THIS COURTNO WAY FOR THIS COURT TO STEP IN AND SAY JUDGE WATSONWAS WRONG ABOUT THAT.I MEAN THIS IS JUST -- SIMPLE MATTER.HERE.
AND -- THAT IS THE PROBLEM WITH THE ORDER BECAUSE THE ORDER PARSES IT VERY THIN, THE -- THE $$JUDGE'S ORDER HAS PULLED OUTCERTAIN SECTIONS OF THE RECORD BUT I SIMPLY CANNOT DRINK A GLASS OF WATER FROM THE MIDDLE OF THE PATIENT, IF ANY!!$$!!!!!!!!!!OF THE PICTURE IF ANY COMES IN WHAT TRIAL JUDGE FOUND DEBT FOR NOT PRESENTING ATTORNEYS DID NOT KNOW ABOUTSEXUAL ABUSE SHE ACTIVELY CONCEALED THAT, SHE EVEN CONCEALED THAT TO THE DOCTOR, HE ASKED POINT-BLANKSHE DENY$$!!!!IED IT.
EVEN ON THAT ISSUE, WE HAVE A REPORT FROM AN INVESTIGATOR THAT TALKS ABOUT THIS ABUSE YET, THE DEFENSE COUNSEL NEVER FOLLOWS UP, NEVER ASKS HER ABOUT IT, NEVER ASKS THE SISTERS ABOUT IT, AND THEN AT THE LAST MINUTE, BRINGS IN THIS -- DR. CROP HE TESTIFIED AFTER SHE WAS THE RECOMMENDATION FOR DEATH DIDN'T HE?I MEAN, SO --
DR. CROP WHETHER THERE WAS ANYTHING ABOUT THE ABUSEOR NOT, WE HAVE A RECORD, THAT SAYS THERE WAS A REPORTTHAT INDICATED THAT.COUNSEL HAVE FOLLOWED UP ON THAT KIND OF POTENTIAL MITIGATING EVIDENCE --
THE REPORT WAS FROM AN INVESTIGATOR THAT WAS FIRED BECAUSE THEY -- EVERYTHING IN THAT REPORT WAS FACTUALLYINCORRECT!!$$!!!!!!!!!!!!!!!!INCORRECT, AND THEY DID NOT KNOW WHAT TO BELIEVE AND WHAT NOT TO BELIEVE, THEY HIRED A SECOND INVESTIGATOR!!$$!!!!!!!!!!!!!!!!!!!!!!INVESTIGATOR --
HOW DO YOU MAKE A DETERMINATION WHAT TO BELIEVE UNTIL YOU HAVE LOOKED WAIT.
BECAUSE THEY HIRED A SECOND INVESTIGATOR WHO DISCREDITED MOST OF THAT REPORT, AND MR. McDANIELS WAS FIRED, NOW IF YOU LOOK AT MR. WILKINS' TESTIMONY AT5693, AND --
DO WE HAVE --
I DON'T WANT TO MOVE TOO FAR FROM THIS REPORT DO WE HAVE ANOTHER REPORT FROM THIS OTHER INVESTIGATOR THATSAYS, NONE OF THAT INFORMATION IS CORRECT?
, MONTH -- BECAUSE WHETHERMR. WILKINS GOT THE REPORT REMEMBER HE COULD NOT REMEMBER WELL BUT HE SAYS I KNOW WOULD I HAVE TALKED TO VIRGINIA ABOUT THAT REPORT, AND I KNOW SHE DENIED ABUSE TO ME.AND THIS IS CORROBORATED BY THE FACT THAT WHEN DR. CROP WENT TO SEE HUSH HE TOLD HER, I NEED EVERYTHING, IN MITIGATION!!$$!!!!!!!!!!!!!!!!!!MITIGATION, YOU HAVE TO TELLME, EVERYTHING, AND BE HONEST,AND SHE SPECIFICALLY DENIED ANY SEXUAL ABUSE --
WHEN WAS DR. CROP BROUGHTINTO THE CASE.
ONE MONTH AFTER THE PENALTY PHASE, RIGHT, SO THIS -- TO ME, IS -- MISS DAVIS I JUST THINK IS IN THEYEARS I'VE BEEN UP HERE, DO I NOT REMEMBER A SITUATION IN WHICH WE HAVE HAD AS MANYPROBLEMS WITH THE LAWYERS JUST WHO THEY ARE, AND THEN NOT FOLLOWING UP ON AN INVESTIGATION AND A TRIAL JUDGE MAKING A DETERMINATIONTHAT THEY DIDN'T PROVIDE EFFECTIVE COUNSEL, AND -- THAT THIS THERE HAS BEEN PRESENTED TO THIS COURT.I JUST AM CONCERNED, THAT THAT THIS CASE NEEDS TO MOVEALONG HERE, AND BACK HAND A NEW PENALTY PHASE.
AND I ASK YOU TO PLEASE GO, BEHIND THE $$JUDGE'S FACT!!$$!!!!!!FACTUAL FINDINGS, BECAUSE THEY DID INVESTIGATE THIS, THEY -- THEY HAD MANY, MANY CONVERSATIONS!!$$!!!!!!!!!!!!!!!!!!!!!!!!CONVERSATIONS, WITH VIRGINIALARZELERE AND THEY FOLLOWED UP ON THE INFORMATION.
THE PROBLEM IS AND I CAN THINK OF MR. -- NUNNELLEY SOMETIMES BEING UP HERE ON THE RARE OCCASION WHERE A JUDGE DOES OVER TURN A -- A PENALTY PHASE FINDING THAT -- DEFICIENT PERFORMANCE ANDUNDERMINED CONFIDENCE, YOU SAY WELL IF WE COULD GO THATTHE JUDGE KIND OF PICKED ANDCHOSE WHAT TO BELIEVE IN THIS RECORD.BUT WHAT WE THE DEFERENCE WHY USUALLY THE DEFENDANT ISAT A DISAVWHEN THEY ARE DISADVANTAGE WHEN ATELLING ATHE TRIAL COURT WE DO GIVE DEFERENCE TO FACTUAL FINDINGS!!$$!!!!!!!!!!!!!!FINDINGS.NOW ONE OF THE FACTUAL FINDINGS IS YOU CAN'T MAKE ASTRATEGIC DECISION ALSO IN IT IS BASED ON A REASONABLE INVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION.THIS JUDGE FOUND IT WAS NOT A REASONABLE INVESTIGATION.NOW, YOU ARE ASKING US TO GORED THE WHOLE RECORD AND MAYBE, SOME OF US WOULD COMETO A DIFFERENT CONCLUSION.BUT SINCE, IF THE $$JUDGE'S FINDINGS ARE BASED ON COMPETENT SUBSTANTIAL EVIDENCE, WE REALLY WILL DEFER TO THAT, WOULD YOU AGREE WITH THAT?THAT IS, THAT THERE ARE THERE IS A LOT IN THIS RECORD, THAT IS TROUBLING, EVEN THOUGH COULD YOU POINT TO OTHER FACTS THAT MAYBE ANOTHER JUDGE MIGHT HAVE LOOKED AT DIFFERENTLY THIS JUDGE WHO TRIED THE CASE WASQUITE DISTURBED AND DID NOT FEEL AND MADE A FACTUAL CONCLUSION THAT IT WAS NOT AREASONABLE INVESTIGATION.
FIRST OF ALL, IF THE JUDGE WAS DISTURBED BY THE ALCOHOL!!$$!!!!!!!!!!!!ALCOHOLISM, AND THE SUBSEQUENT FEDERAL PRISON THAT HAPPENED AFTER THIS TRIAL WAS CONCLUDED.HE MADE A FINDING IN THE CONFLICT SECTION THAT THEY -- IN BURDEN OF PROOF THEY FAILED ON BURDEN OF PROOF ONALCOHOLISM AND --
I WASN'T TALKING ABOUT THE STATE ALTHOUGH IT IS A HARD NOT TO LOOK AT THE DECISIONS THAT WERE MADE IN LIGHT OF NOW THAT YOU BRING THAT UP IN LIGHT OF TWO THINGS, NOT ONLY THE ADICTION THE ALCOHOLISM,AND SUBSEQUENT MISBEHAVIOR BUT THE FACT THAT THE UNDER TONEOF THIS, IS THAT -- HE WAS HIRED LAND WAS THIS EXPECTATION THAT HE WOULD GET PAID IF THE SISTER GOT PAID, AND THERE IS JUST A SUGGESTION THAT MAYBE NOT MUCH WAS DONE BECAUSE THEY WANTED TO MAXIMIZE HOW MUCH MONEY THEY WERE GOING TO MAKE.
NOT AT ALL.AND THE JUDGE FOUND IN THE CONFLICT SECTION THERE WAS NO GROUNDS THAT THEY FAILED IN THEIR BURDEN OF PROOF, THERE THOSE WERE ABSOLUTELY NOT OF PROVEN.AND -- AND THAT WAS JUSTICE WELLS' QUESTION ISN'T THIS TROUBLESOME ABOUT THE ATTORNEY, AND -- IF YOU DON'T WANT TO READ THE ENTIRE RECORD IT IS ALL IN OUR BRIEFS, AND I CAN GIVE YOU SOME EXAMPLES FROM THE ORDER.FIRST OF ALL, HE TAKES DR. MOWSMAN DR. CROP DR. McLARENSAYS THEY ALL TESTIFIED TO DIFFERENT THINGS DOESN'T MAKE A CREDIBILITY DETERMINATION I'M GOING AGREE WITH DR. MOSSMAN JUST SAYS HERE'S ALL THESE THINGSDR. CROP TESTIFIED HE WAS NOT -- WOULD HE HAVE FOLLOWED UP WITH FAMILY -- HE ASKED MISS LARZELERE TO GIVE HIM THE NAMES, SHE DIDN'T.THERE WASN'T A PROBLEM AGAINWITH MR. -- DR. CROP WHEN HEWAS HIRED?YOU SAID IN ALL HIS 1500 DEATH PENALTY CASES THIS IS THE FIRST TIME HE HAD EVER BEEN HIRED AFTER THE PENALTYPHASE.
AND DR. CROP SHOWS THAT THEY MADE A REASONABLE DECISION!!$$!!!!!!!!!!!!!!DECISION.THEY -- AND THEY DID INVESTIGATE THEY DID HAVE WITNESSES BUT LIKE MR. WILKINS SAID FOR EVERYTHING THEY COULD SAY, FOR EVERY REASON TO CALL THAT WITNESS THERE WERE DOZENS NOT TO CALL THAT WITNESS!!$$!!!!!!!!!!!!WITNESS, SO, HERE WHAT IS THE JUDGE WANTED AND HE WANTED TO JUST SLICE A PIECEOUT OF THE MIDDLE AND SAY CALL JASON, CODEFENDANT NOT AVAILABLE WHO HAD NOT GONE TO TRIAL, APOLOGIESKA!!$$!!!!!!!!!!!!!!!!!!!!JESSICA.
TIME IS -- I THINK THE QUESTION ASKED QUICKLY WHAT WAS THE EXPLANATION FOR HIRING A MENTAL HEALTH, PERTAFTER THE PENALTY PHASE IS OVER?
HOW -- HOW TELL US HOW THAT JUSTIFIED --
FIRST OF ALL MR. WILKINS TESTIFIED THERE WAS NO REASON TO HIRE MENTAL HEALTHEXPERT BECAUSE THEY DID NOT CEMENTAL HEALTH ISSUES, AFTER THE PENALTY PHASE RECOMMENDATION MR. HAWES HADBEEN WORKING WITH DR. CROP ON ANOTHER CASE HE SAID I WAS RACKING MY BRAIN, TO THINK OF SOMETHING, WE COULDDO, AND I SAID LET'S CALL DR. CROP IN, AND SEE IF HE CAN FIND ANYTHING AT ALL.HE COULDN'T.
SHOULDN'T THAT RACKING OFTHE BRAIN HAVE BEEN DONE BEFORE THE PENALTY PHASE?IN OTHER WORDS, ISN'T IT -- AND HAS BEEN FOR MANY MANY YEARS, VIRTUALLY STANDARD PRACTICE FOR A DEATH PENALTYLAWYER IN ADVANCE, WAY IN ADVANCE, TO HAVE A MENTAL HEALTH EVALUATION DONE OF THEIR CLIENT.
I REMEMBER THIS IS 1991, 92, THERE IS NO REQUIREMENT THAT YOU HIRE A PSYCHOLOGISTPSYCHIATRIST!!$$!!!!!!!!!!!!!!!!!!!!!!PSYCHIATRIST, WHEN THERE IS NO REASON TO HIRE THEM, JUSTIN ORDER TO HIRE HIM, AND DR. --
DR. CROP, TESTIFIED TO ATTHE EVIDENTIARY HEARING HEARING NOW IN TERMS OF HIS BEFUDDLEMENT THIS IS THE FIRST TIME HE HAS EVER BEEN HIRED OR BROUGHT INTO A CASEAFTER THE PENALTY PHASE, IS OVER WITH, AND THEN, WHAT WAS HIS TESTIMONY ABOUT NOT BEING PROVIDE ADEQUATE MATERIALS OR BACKGROUND INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!INFORMATION?
-- DIDN'T HE TEST TO THATEFFECT.
YOU HAVE GOT THAT LITTLE PART IN THE FACT FINDINGS BUT THE PART WE DON'T HIS THAT THAT -- McDANIELS REPORT --
IMASKING YOU TO CONFIRM OR DENY -- DID HE TESTIFY THAT HE WAS NOT PROVIDE ADEQUATE INFORMATION FROM THE LAWYERS?
HE TESTIFIED TO THAT, ANDTHE LAWYERS TOLD HIM EXACTLYWHY THAT REPORT WAS NOT USED, BECAUSE IT WAS THEY FIRED THAT INVESTIGATOR THATINVESTIGATOR WAS COMPLETELY UP RELIABLE, ANY INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!INFORMATION, IN THERE DR. CROP ASKED HER FOR ALL THAT INFORMATION, MISS LARZELERE HE ASKED HER FOR FAMILY NAMES!!$$!!!!!!!!NAMES.
DR. CROP DID SAY AT THE EVIDENTIARY HEARING THAT IF HE HAD BEEN GIVEN THAT REPORT, HE WOULD HAVE HAVE HAD AMMUNITION TO ACTUALLY CONFRONT THE -- THE -- DEFENDANT BECAUSE OFTEN PEOPLE WHO ARE ABUSED, DON'TWANT TO TALK ABOUT IT.BUT IF HE KNEW THAT THERE WAS SOME EVIDENCE THAT TOOK PLACE HE WOULD BE IN A BETTER POSITION TO ACTUALLY CONFRONT HER ABOUT IT DIDN'THE? .
WELL, THIS HINDSIGHT.
WHEN --
DID HE NOT SAY IF HE HAD HAD THAT REPORT, HE WOULD HAVE BEEN ABLE TO CONFRONT HER, WITH THIS KIND OF INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!INFORMATION?
HE SAID THAT, BUT, REMEMBER, MR. WILKINS, HAD ASKED MISS LARZELERE ABOUT THE ABUSE SHE DENIED IF IT ACLIENT DENIES TO AN ATTORNEYSHE HAS BEEN SEXUALLY ABUSEDIF IS HE SUPPOSED TO SPREAD THAT TO SOMEBODY ELSE, AND SAY "OH I THINK SHE IS SEXUALLY ABUSED CONFRONT HERBEAT IT OUT OF HERE EVEN IF SHE WANTS TO CONCEAL IT"?
DEFENSE ATTORNEYS ALL THETIME GIVE THEM ALL KINDS OF REPORTS ABOUT THE DEFENDANT'S BACKGROUND.YOU KNOW THE SCHOOL REPORT, HOSPITALIZATION REPORT, ALL OF THOSE KINDS OF OF THINGS,ARE NORMALLY GIVEN TO A MENTAL HEALTH EXPERT IN ORDER FOR THEM TO HAVE SOME IDEA WHERE THEY SHOULD GO WITH THE WITNESS THE THEY GAVE DR. CROP INVOLVE NUMBERS REPORTS THERE WAS NOPLACE TO GO WITH THIS PERSON, AND THEY ALL SAID THAT, EVERY TIME, THERE WAS SOMETHING GOOD TO SAY THEY WERE FIVE THINGS BAD TO SAY,AND -- THE JUDGE WANTED TO PRESENT JUST OKAY THE DAUGHTER AND SO I WENT THROUGH DAUGHTER THEY SAID WE CAN'T CALL HER IT IS ALL NEGATIVE FLFSHGS SHE SAYS MOM IS PATHOLOGICAL LIAR HADAFFAIRS SHE NEW ABOUT LET HER BE ABUSED BY GRANDFATHERTHE THREE SISTERS JUST DR. MOWSMAN THE PART OF DR. MOWSMAN THAT IS A GOOD FOR THEM I GUESS THE STATE ISN'TGOING TO CROSS-EXAMINE DR. MOWSMAN O OR CALL REBUTTAL WITNESSES DR. MOWSMAN, RECOMMEND HE HAD HER AS ADULT ANTISOCIAL HE KNEW SHETRIED TO KILL TWO PRIOR HUSBANDS!!$$!!!!!!!!!!!!!!HUSBANDS -- HE -- AND THE PART ABOUT HUM FINDING THE THREE STATUTORY MITIGATING CIRCUMSTANCES, WHEN DR. CROPAND DR. McCOLLAREN McCOLLAREN SAID THERE WERE NO STATUTORY MITIGATING CIRCUMSTANCES THE JUDGE PLAYED NO CREDIBILITY DETERMINATION ON WHETHER I BELIEVE THIS DOCTOR OR NOT THAT DOCTOR, HIS PREJUDICE ANALYSIS IS FLAWED BECAUSE HE DID NOT CONSIDER ALL THE EVIDENCE.HE CONSIDERED JUST THE PART THAT -- THAT HE SEVERED OUT FROM THE WHOLE YOU SIMPLY CAN'T DO THAT. YOU CAN'T PRESENT WITNESSES THAT AREN'T VILLAGE YOU!!$$!!!!!!!!!!!!!!!!!!!!AVAILABLE YOU CAN'T PRESENT AN EXPERT JUSTTO SAY SHE WAS SEXUALLY ABUSED NOT GO INTO HOW THAT EFFECTED HER THE MINUTE YOU GO INTO HOW THAT AFFECTED HER YOU GET INTO THE REAL VIRGINIAAR LAR WHO TRIED TO KILO LARZELERE TRIED TO 12WI8!!$$!!!!!!!!KILLTWO PRIOR HUSBANDS EMBESS!!$$!!!!!!!!!!EMBESSELED FROM HER EMPLOYEREXPOSED HER OWN CHILDREN TO SEXUAL ABUSE FROM THE SAME MAN WHO SEXUALLY ABUSED HER HAD A COCAINE TRAFFICKING ORGANIZATION WITH HER SON, THIS IS NOT THE INFORMATION THEY WANT.REMEMBER, MR. WILKINS HAD REPRESENTED MISS LARZELERE BEFORE IN BARTOW ON THE EMBEZZLEMENT CHARGES NEW ALLABOUT MR. MATHIS WHEN MR. MATHIS SHOWED UP THAT THE PENALTY PHASE AS A STATEREBUTTAL WITNESS THAT CHANGED THE GAME, BECAUSE, HE KNEW ABOUT HER PATHOLOGICAL LYING, HE KNEW SHE TRIED TO KILL HIM, SHE HE KNEW ABOUT THE EMBEZZLEMENT!!$$!!!!!!!!!!!!!!!!!!!!!!EMBEZZLEMENT, AND THE ABUSE,AND SO -- WHERE IS THE DEFENSE COUNSEL SUPPOSED TO DO?THEY DID A REASONABLE INVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION, THEY MADE A STRATEGIC DECISION CONSULTEDWITH THE CLIENT, SHE NEW THIS -- THIS INFORMATION, WAS THERE, IT WAS HER LIFE, SHE CONCEALED FROM IT THEM, AND -- DR. CROP IT JUST -- HE TOLD THEM, I CAN'T HELP YOU, SO THAT JUST WENT TO REAFFIRM, THAT THAT INVESTIGATION WAS REASONABLE!!$$!!!!!!!!!!!!!!!!!!REASONABLE, YOU KNOW THIS A PERFECT CASE OF HINDSIGHT WHERE WE COME UP.
YOU ARE WELL INTO YOUR REBUTTAL!!$$!!!!!!!!!!!!!!REBUTTAL.
WHERE WE COME UP 16 YEARSLATER, AND WE BRING IN A NEWEXPERT, BUT -- TWO OUT OF THREE OF THE EXPERTS SAID THERE ARE NO MENTAL DEFICIENCIES THERE ARE NO STATUTORY MITIGATORS, IF -- THERE ARE ALL THIS NEGATIVE THINGS, THAT YOU COULD BRINGIN, AND I WILL SAY -- SAVE THE REST OF THE TIME FOR REBUTTAL THANK YOU.
!!$$!!
.
GOOD MORNING.
ANYWAY NAME IS DAVID HENDRY I REPRESENT VIRGINIA!!$$!!!!!!!!!!!!!!VIRLARZELERE IN THIS CASE THIS LAR CASE THERE WAS NO ACT CONTINUED BY VIR!!$$!!!!LARZELERE THAT CAUSED THE DIETING OF LARZELERE THERE WAS NO AIDE!!$$!!!!!!AIDING NO ABETTING ANYTHING THAT VIRGINIA DID THAT DAY, TO ACTUALLY CAUSE THE DEATH OF MR. NORMAN LARZELERE THATIS WHERE I WANT TO START I THINK APPROPRIATE TO ADDRESSTHE MAJORITY WITNESS MRS. DAVIS TALKING ABOUT IS MITIGATION THAT IS CASE, IT WAS A DEATH RECOMMENDATION BY SLIMMEST OF MARGINS 7 TO 5, THERE IS A REASONABLE PROBABILITY ONE JUROR HEARING PERVASIVE SEXUAL ABUSE THROUGHOUT THE LARZELERE FAMILY, WOULD HAVEVOTED FOR LIFE, RATHER THAN DEATH THAT IS WHAT --
SEEMS TO ME THAT -- THE FIRST PLACE, THAT WE HAVE INFORMATION ABOUT THE SEXUALABUSE IS THE REPORT FROM MR. McDANIEL, SO WHAT IS THESTATUS OF THE RECORD AS TO THE VALIDITY OF THAT REPORT,AND WHETHER OR NOT, THIS FACTUAL INFORMATION CONTAINED IN THAT REPORT HASBEEN REFUTED BY SOME OTHER REPORT?
THE INFORMATION, CONTAINED IN THAT REPORT HASNOT BEEN REFUTED.MISS LARZELERE WAS INDICTED ARRESTED ABOUT MAY OF 1991, NOW, INVESTIGATOR McDANIEL TOOK THIS INFORMATION AND PUT IT IN HIS REPORT, IN JUNE OF 1991.SHORTLY AFTER HER ARREST, AND, SPECIFICALLY, HE STATEDMANY IN HIS IN HIS REPORT THERE WERE TWO REFERENCES, TO ABUSE, AND THAT WAS NOT FOLLOWED UP ON, BY COUNSEL, AND AS A MATTER OF FACT THE INFORMATION REGARDING THE ABUSE WAS NOT REFUTED AT THEEVIDENTIARY HEARING IT WAS THE ENTIRE LARZELERE FAMILY OF ITTED TALKED ABOUT PER VASE$$!!!!IIVE SEXUAL ABUSE IN THATFAMILY SUBSTANTIATED THE STATE CANNOT SAY THE INFORMATION CONTAINED WITHINTHE McDAEJS MEMORANDUM IS INKREG ALL THE ALLEGATIONS OF ABUSE, WERE ACTUALLY AFFIRMED BY THE -- FAMILY MEMBERS.
I'M NOT ASKING YOU IF -- IF THAT INFORMATION WAS INCORRECT!!$$!!!!!!!!!!!!!!!!INCORRECT.BUT!!$$!!!!BUT WHETHER OR NOT DEFENSE ATTORNEY HAD SOME OTHER INFORMATION THAT WOULD INDICATE THAT THAT INFORMATION WAS INCORRECT.
I -- I DID NOT SEE ANY I DON'T KNOW OF ANY YOUR HONOR!!$$!!!!!!!!THEREWAS TALK ABOUT -- WELL, McDANIEL COULDN'T BE BELIEVED!!$$!!!!!!!!!!!!!!BELIEVED, THIS INFORMATION THAT STATEMENT CAME FROM JACKS WILKINS ACTUALLY A CONVICTED PERJUREER THIS TRIAL ATTORNEY HAD NEVER BEFORE TRIED A CAPITAL MURDER CASE BEFORE ACTUALLY CONVICTED A PERJURY TELLING ME WE CAN'T BELIEVE McDANIEL, AT THE TIME THAT MEMORANDUM WAS WRITTEN, AND JUNE OF 1991, THERE WAS ABSOLUTELY NO REASON TO BELIEVE THAT MR. MAC DANIEL WAS PROVIDING UNTRUTHFUL INFORMATION HE WAS THE INVESTIGATOR ON BOARD JACK KILL -- WILKINS LOOKING TO HIM FOR FLFRGS.
-- MADE THE REPRESENTATION IT WAS FULL OF INACCURACIES, IS THERE ANYTHING IN THE RECORD THAT SHOWS THAT THAT REPORT WAS INDEED FULL OF INACCURACIES IN THE COUNSEL WAS REASONABLE IN THEIR DISTRUST!!$$!!!!!!!!!!!!!!DISTRUST?
NOT THAT I REMEMBER, YOURHONOR, THE INFORMATION, THATVIRGINIA LARZELERE VICTIMIZED HE MOTIONALLY PHYSICALLY AS OTHER CHILDRENABSOLUTELY NO RECORD.
WHERE DID HE GET THAT FROM WHERE DID HE GET, IN THE REPORT, WHERE DID THE INVESTIGATOR GET THAT INFORMATION ABOUT THE ABUSE BY THE OF VIRGINIA LARZELEREAND HER SISTERS?THIS WAS INTU MR. Mc-- INTERVIEW CONDUCTING WITH VIRGINIA LARZELERE VIRGINIA LARZELERE DIDN'T ACTIVELY CONCEAL ABUSE WITHIN HER LIFE AS A MATTER OF FACT WITHIN A MONTH OF BEING ARELATIVED SHE CANDIDLY TELLS THE INVESTIGATOR THEREIS ABUSE IN MY FAMILY, AND THAT WHEN HER FATHER DIED THE CURSE HIM WHEN HE DIED OBVIOUSLY EMOTIONAL HE RESPONSE TO VERY MANY$$!!!!IZATION AS ADOLESCENTS NOT ONLY FROMVIRGINIA LARS LARS BUT SAYS YOU CAN TALK TO MY SISTER, BECAUSE, THIS IS THIS -- THIS ABUSE IN OUR FAMILY IS NOT SPOKEN OF FAMILY MEMBERSSHE STATES THAT.
SHE SAID YOU CAN TALK TO MY SISTER.
YES, SHE SAID I BELIEVE SHE -- INVESTIGATOR EVEN GAVE A TELEPHONE NUMBER AND ADDRESS.
THAT WAS NEVER FOLLOWED UP ON.
NOT FOLLOWED UP ON THE STATES JANET COULD GIVE INVESTIGATOR YOEFB VIEW OF $$DEFENDANT'S UPBRINGING EXCEPT FOR ISSUES RELATED TOCHILD ABUSE UNSPOKEN AMONGST-- AMONGST FAEL MEMBERS.
LET ME ASK YOU A QUESTIONSEVERAL QUESTION, BUT I -- RECALL READING A SYNOPSIS OFTHE DAUR'S TESTIMONY -- DAY YOU'S TESTIMONY, IS IT SHE WAS ALSO ABUSED BY THE -- BYTHE GRANDFATHER.IS THERE WAS THERE HER TESTIMONY THAT VIRGINIA ALLOWED THIS TO HAPPEN OR WAS I THOUGHT IT WAS MORE THAT SHE WAS VERY CONCERNED ABOUT IT, AND TRIED TO PROTECT HER FROM IT OR WHAT IS THE --
TALKING ABOUT THE VIRGINIA LARZELERE$$'S DAY YOUJESSICA DAUGHTER.
YES.
THERE WAS EVIDENCE NOT ONLY VIRGINIA THE OLDEST IN THIS FAMILY ALL SISTERS WERESEXUALLY ABUSED BY THEIR FATHER AND $$VIRGINIA'S CHILDREN, JESSICA LARS LARS AND -- LARS LARS AND JASON LARS LARS SEXUALLY ABUSED.
THE NEGATIVE PART THE OUTOF THE MOTHER ALLOWING HER CHILDREN TO BE SEXUALLY ABUSED WHAT IS THE HOW DID THAT COME OUT.
WELL, ATTORNEY DON WEST, ACTUALLY VIEWED THE RECORDS TRANSCRIPTS IN THIS IS THE EVIDENTIARY HEARING TESTIMONY HE WAS ASKED BY THE STATE AND MR. WEST ISN'TIT TRUE THAT THIS COULD BE TURNED AROUND ON VIRGINIA LARZELERE THIS COULD BE TO HER DETRIMENT THE MAY HAVE EXPOSED HER CHILDREN TO SEXUAL ABUSE MR. WEST TESTIFIED HE SAID THE MITIGATING VALUE OF THE SEXUAL ABUSE, THAT IS AVAILABLE IN THIS PARTICULARCASE, WOULD NEVER BE OUTWEIGHED BY THE POTENTIAL HARM THAT VIRGINIA LARS LARSBECAUSE SHE HAS BEEN VICK PLOOIZED THE ENTIRE FAMILY HE IT WOULD BE STATE ATTEMPTING TO VICTIMIZE --
ALTHOUGH THERE IS OTHER SIDE OF THAT THERE IS THAT MANY THEY DIDN'T BRING THEIRFRIENDS OVER TO THEIR HOUSE,BECAUSE THEY WERE AFRAID OF WHAT THE FATHER MIGHT DO.TO EVEN THEIR FRIEND, YET, YOU KNOW, KNOWING THIS, SHE TAKES HER CHILDREN OVER TO THE HOUSE, AND GIVING THE FATHER AN OPPORTUNITY TO SEXUALLY ABUSE THEM.I MEAN THAT IS THE FLIP SIDEOF THIS YOU KNOW THE STATEMENT THAT YOU ARE MAKEING.
WELL IT IS A VERY UNFORTUNATE CIRCUMSTANCE YOUWANT THE CHILDREN TO BE ABLETO HAVE RELATIONSHIP WITH GRANDFATHER BUT THE THEN AGAIN TO BE CONSTANTLY UPSETPARANOID THERE IS GOING TO BE SEXUAL ABUSE IMPOSED UPONTHEM I MEAN IT IS A DIFFICULT SITUATION FROM FORSHE AND --
THE TRIAL JUDGE MADE THE DETERMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!DETERMINATION, THAT THESE LAWYERS DID NOT HAVE A DID NOT DO AS SUFFICIENT INVESTIGATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!INVESTIGATION, IN ORDER TO PROPERLY ADVISE THE DEFENDANT WHEN THE DEFENDANTMADE THE DECISION TO WAIVE THE MITIGATION; CORRECT?THAT WAS THE BASIS THE TRIALJUDGE -- THE NEW PENALTY PHASE.
THAT IS CORRECT YOUR HONOR.
AND SO --
HOW ABOUT MOVING TO YOUR GUILT PHASE ISSUE.
YES YOUR .
IN THIS PARTICULAR CASE, THERE WAS NO MEETING OF THE MINDS HERE AS TO WHAT THE ACTUAL CHARGE WAS, ONE CASE THAT I CITED A LOT OF CASES IN MY BRIEF BUT ONE OF THE ONE OF OF THE CASES HERE THAT I WAS LOOKING AT THE JEFFERIES CASE, IT SAYS THATIT IS FUNDAMENTAL ERROR TO INSTRUCT A CHARGE, NOT ACTUALLY AND I CAN WITHIN INDICTMENT AND INFORMATION THIS PARTICULAR CASE YOU HAVE A CHARGE OF PREMEDITATED FIRST-DEGREE MURDER BUT THE JURY IS INSTRUCTED ON THE CHARGE OF CONSPIRACIES WE DON'T KNOW -- WHAT HAPPENED WITH THIS JURY THE DANGER HERE THE JURY IN BEING INSTRUCTED ON A CHARGE OF CONSPIRACY FEELSTHE CONSPIRACY POSSIBLY MAY HAVE BEEN MET BEYOND A REASONABLE DOUBT CONVICTED THE DEFENDANT BASED ON THE ALLEGATIONS OF CONSPIRACY, THE REAL DANGER HERE IS THATTHE JURY WAS ACTUALLY INSTRUCTED THAT MANY VIRGINIA LARZELERE NOT COMMIT ANY ACT, AND THEN IT TALKS ABOUT ACTS OF COCONSPIRATORS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!COCONSPIRATORS.
WHO WHAT WAS WHAT IF ANY -- EXCUSE ME OBJECTION, WAS MADE TO THAT INSTRUCTION WHAT WAS THE OBJECTION MADE?
THAT IS -- THAT IS QUESTION IS GOING TO TAKE SOME TIME TO REALLY GO INTO.YOUR HONOR I WILL GET INTO IT, BEFORE DO I, I WANT TO EMPHASIZE HERE.
PLEASE ANSWER THE QUESTION BEFORE YOU --
WHAT HAPPENED WAS IT WAS QUESTION ABOUT APPROXIMATE WHEN JASON LARZELERE STATEMENTS WERE GOING TO BE INTRODUCED AGAINST VIRGINIA LARZELERE AS HEARSAY EXCEPTION OF COCONSPIRATOR STATEMENTS NOW BEFORE THE STATEMENTS CAN COME IN, TOP VIRGINIA LARZELERE$$'S TRIAL YOU HAVE TO SHOW THERE HAS TO BE SHOWN INDEPENDENT EVIDENCE OF THE CONSPIRACY INDEPENDENT FROM THE STATEMENTS THEMSELVES, THAT THERE IS CONSPIRACY BEFORE THE STATES INTRODUCED AGAINST VIRGINIA LARZELERE THE TRIAL JUDGE STRUGGLED WITH THIS ISSUE, AND THEN FINALLY, HE REACHED THE OPINION THAT THERE IS INDEPENDENT EVIDENCE I'M GOING LET ME THOSE STATEMENTS IN HE SAID DEFENSE I IMAGINE YOU MIGHT WANT CAUTIONARY$$!!!!ISTRUCTION APOLLO INSTRUCTION THE APOLLO INSTRUCTION INFORMS PLE JURY BEFORE YOU ANALYZE STATEMENTSUSE THESE STATEMENTS AGAINST VIRGINIA LARZELERE YOU GOT TO MAKE SURE THERE IS INDEPENDENT EVIDENCE OF THE CONSPIRACY BEFORE YOU CAN USE STATEMENTS, NOW, THE DEFENSESAID NOT ONLY DO WE WANT THEAPOLLO INSTRUCTION, BUT WE WANT THE JURY TO BE INSTRUCTED!!$$!!!!!!!!!!!!!!!!!!INSTRUCTED, ON THE ACTUAL CHARGE OF CONSPIRACY, SO WHAT HAPPENED WAS AS THE JURY IS TRYING TO ANALYZE HERE WHEN -- WHETHER, THERE IS INDEPENDENT EVIDENCE OF THE CONSPIRACY THEY ARE THINKING SHE IS ACTUALLY CHARGED WITH CONSPIRACY SHE IS NOT CHARGED WITH CONSPIRACY THE JURY CONVICTSVIRGINIA LARZELERE BASED ON,THE INSTRUCTION OF CONSPIRACY SAYS VIRGINIA LARZELERE NEED NOT COMMIT ANY ACT WHATSOEVER, AND THENTHINKING THAT SHE MIGHT BE GUILTY OF CONSPIRACY THEY FIND HER GUILTY OF MURDER.
WAIT A MINUTE, INSTRUCT!!$$!!!!!!!!!!!!!!INSTRUCTION SAYS SHE NEED NOT BE -- COMMIT ANY ACT FORWHAT?I MEAN WHAT IS THE -- OF THEINSTRUCT!!$$!!!!!!!!!!!!!!INSTRUCTION?
THE INVUK INSTRUCTION FRIDAY!!$$!!!!!!!!!!FRIDAY, 96, OLE IT IS NOT THIS WHAT THE JURY WAS INSTRUCTED AT AFTER CLOSING ARGUMENTS!!$$!!!!!!!!!!!!!!!!ARGUMENTS, BEFORE THEY DELIBERATED IT IS NOT NECESSARY THAT VIRGINIA GAYLE LARZELERE DO ANY EFFECT IN FURTHERANCE OF CONSPIRACY IT IS A DEFENSE TO A CHARGE, OF CRIMINAL CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY, THAT A DEFENDANT, AFTER COP EXPIRING WITH ONE OR MORE PERSONS TO COMMIT THE OFFENSE!!$$!!!!!!!!!!!!OFFENSE, WAS THE OBJECT -- ADDING CONSPIRACY PERSUADE AID LELGD COCONSPIRATORS NOTTO DO SO THEY ARE TOLD HER VIRGINIA LARZELERE DOESN'T HAVE TO COMMIT ANY ACT WHATSOEVER THAT GOES AGAINSTPRINCIPAL!!$$!!!!!!!!!!!!!!!!PRINCIPAL, LIABILITY, FOR MURDER, WHICH IS AND THERE IS A CASE THAT I CAME ACROSS,!!$$!!!!!!!!!!!!ACROSS!!$$!!!!!!!!!!ASTATEN HAVE SEEN STATE 519 SOUTHERN SECOND 622,991988 CASE SAYS IN ORDER TO BE CONVICTED AS A PRINCIPAL FORA CRIME FULLY K34I9D BY ANOTHER DEFENDANT MUST INTEND CRIME BE COMMITTED AND DO SOME ACTED TO ASSIST THE OTHER PERSON ACTUALLY COMMITTING THE CRIME, AND MERE KNOWLEDGE THAT OFFENSE IS BEING COMMITTED IS NOT THE SAME AS PARTICIPATION WITH CRIMINAL INTENT AND MERE PRESENCE SEEN INCLUDINGDRIVING PERPETRATOR TO AND FROM SOONER OR DISPLAY QUESTIONABLE BEHAVIOR AFTER THE FACT IS INSUFFICIENT TO ESTABLISH PARTICIPATION IN OFFENSE I CAME ACROSS THIS CASE FLORIDA SUPREME COURT IHAVEN'T CITED IT AS SUPPLEMENTAL AUTHORITY I INTENDED TO DO SO, BUT --
PLEASE DON'T ARGUE AUTHORITIES YOU HAVE NOT GIVEN COUNSEL THE OPPORTUNITY -- THE NECESSARYFILINGS!!$$!!!!!!!!!!!!FILINGS.
OKAY, I -- IP CITED.
I STILL -- GO ON.
I'M SORRY -- THIS INDICTMENT, YOUR HONOR, WAS SO VAGUE AND DISTINCT SUCH THAT IT MISLED MISS LARZELERE EMBARRASSED HER INPREPARATION OF HER DEFENSE, AS SHE IS GOING TO DEFEND THIS CRIME PREMEDITATED FIRST-DEGREE MURDER SHE IS THINKING WHAT THE STATE ALLEGED IN THEIR ARREST AFFIDAVIT AFFIDAVIT THAT VIRGINIA LARZELERE AIDED ABETTED COUNSELED AND HIRED -- LARZELERE TO KNIT MURDER OF HER HUSBAND STATEMENTS BY-- THE UNINDICTED -- COCONSPIRATORS THE INDICTMENT HERE WHAT IS THE INDICTMENT SAYS VIRGINIA LARZELERE AND JASON LARZELERE!!$$!!!!!!!!!!!!!!!!LARZELERE, DID FORM PREMEDITATE DED SUNNI TO AFFECT DEFTH NORMAN LARZELERE MURDER HIM WITH A FIREARM HERE IS THE PROBLEM WITH THIS, IS THAT THEY DON'T LIST STEPHEN HEIDLE AND CHRISTIAN PALMIERI AS OTHER ALLEGED COCONSPIRATORSIN THIS INDICTMENT DON'T ALLEGING VIRGINIA LARZELERE AIDE ORDINARY ABETTED THIS IF YOU WILL MURDER -- THIS ACTUAL MURDER PERHAPS MORE IMPORTANT THAN INFORMING A DEFENDANT WHEN IS THE DAY THAT I'M ALLEGED TO HAVE OCCURRED TO HAVE COMMITTED THIS CRIME, WHO IS WHAT IS THE IDENTITY OF THE I'M VERYTHAT I ALLEGEDLY KILLED?THE STATE NEEDS TO INFORM VIRGINIA LARZELERE THAT THERE ARE OTHER ADDING COCONSPIRATORS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!COCONSPIRATORS, I.E., KRISTIN PALMIERI EFSTEVEN HEIDLE.
WHATS SHE CHARGED WITH CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY.
SHE IS NOT CHARGED WITH CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY.
SHE WAS NOT $$CONNOT CONVICTED OF CONSPIRACY
NO SHE WAS NOT BUT INSTRUCTED ON CONSPIRACY THEPRESCRIBE SEE WITH LAUER COURT ORDER ON THIS WE BROUGHT THIS ISSUE UP THE TRIAL JUDGE IN ITS ORDER STATED THAT INJURE$$!!!!A LARZELEREWASN'T CHARGED WITH CONSPIRACY AND HE SAYS THAT ALTHOUGH MENTIONED MAY HAVE BEEN MADE ABOUT CONSPIRACY, YOU KNOW THERE IS NOTHING SHOWING THAT --
WHAT IS THIS PROCEDURALLYBARRED ISN'T THAT WHAT THE TRIAL JUDGE FOUND
YES YOUR HONOR.
ISN'T THIS SOMETHING THATSHOULD HAVE BEEN RACED ON DIRECT PALE.
IT IS SOMETHING THAT SHOULD BE RAISED ON DIRECT APPEAL THAT IS WHY WE ARGUEDIT IN OUR HABEAS, YOUR HONOR.
IT HAS TO BE, FUNDAMENTALERROR.
UM-HMM.-- FUNDAMENTAL ERROR --
IS THERE A CASE YOU HAVE GOT THAT WOULD SAY IT WAS FUNDAMENTAL ERROR?
THERE IS -- A LONG LINE OF CASES I HAVE CITED NUMEROUS!!$$!!!!!!!!!!!!!!NUMEROUS, NUMEROUS CASES YOUR HONOR, PERHAPS 15 OR 20CASES THAT TALKS ABOUT WHEN YOU WHEN YOU EXPAND THE OFFENSE!!$$!!!!!!!!!!!!OFFENSE, BEYOND THE TERMS.
IS THERE ONE ON CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY?
I'M SORRY.
THERE IS ONE99ON CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY?
THE KELLER CASE, YOUR HONOR, THE KELLER CASE IS ONE THAT I WOULD LIKE TO POINT OUT THE CASE, ON PAGE 416 MY BRIEF, IN KELLER -- 41, IN CONDEMNER 3, 916 FSECOND 628 A CASE KELLER ALLEGED TO HAVE CONSPIRED WITH SMITH, TO WITH RESPECT!!$$!!!!!!!!!!!!!!!!!!!!!!ROP ROB A BANK WHEN THE JURY WENT TO DELIBERATION US THE HAD A QUESTION, THE QUESTION YOUR HONOR CAN WE FIND ONE OF THESE DEFENDANTS GUILTY AND THE OTHER ONE NOT GUILTY.
IS THAT A CASE CONSPIRACYWAS CHARGED, THAT WAS WHAT THE CASE WAS TRIED UPON, ANDCOUNSEL ARGUMENTED IT WILL AT THE END OF THE CASE.
THIS WAS KELLER -- MULTIPLE COUNTS OF BANK ROBBERY AND CONSPIRACY TO COMMIT BANK ROBBERY THE SUBSTANTIVE CHARGE OF CONSPIRACY AND ACTUAL BANK ROBBERY!!$$!!!!!!!!!!!!ROBBERY, AND THE JURY HAD QUESTION WAS CAN WE FIND ONEGUILTY ONE NOT GUILTY THINK IS EXACTLY WHAT HAPPENED IN THIS CASE YOUR HONOR.
DID EITHER DEFENSE COUNSEL OR THE STATE ARGUE CONSPIRACIES SIGH?O CONSPIRACY?
IN THIS CASE ABSOLUTELY.
DID THEY ARGUE CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY?AS OPPOSED TO TO PRINCIPAL.
YES THEY DID, YOUR HONOR,AND I SPELLED OUT M MY JURY INSTRUCTIONS!!$$!!!!!!!!!!!!!!!!!!!!!!INSTRUCTIONS -- DOROTHY SEDRICK STATE ATTORNEY.
LET ME CLARIFY MY QUESTION DID THEY ARGUE CONSPIRACY AND FOCUS ON INSTRUCTION AND CONSPIRACY IN THE FORM AS A SEPARATE CRIME, AS IF THERE WAS CHARGED AS SEPARATE CRIME ASOPPOSED TO THESE TWO PEOPLE GOT TOGETHER AND THEY WERE GOING TO KILL THIS I'M VERY?
THIS VICTIM?
THE STATE DID ARGUE THAT SPECIFICALLY SHE SAID, IF YOU FIND THAT KRISTIN PALMIERI WAS PARTICIPATING IN ANY WAY AS A PRINCIPAL TOVIRGINIA THEN KRISTIN PALMIERI ACTS $$VIRGINIA'S ACTS AND VIRGINIA, GUILTY OFTHOSE -- SHE SAYS -- I WANT TO ENCOURAGE YOU TO MAINTAINTHAT SAME ATTENTION FOR THE REST OF THE CLOSING ARGUMENTS AND TO JURY INSTRUCTIONS THAT ARE A LITTLE BIT COMPLICATED AND APPLYING PRINCIPLES, AND THEAPPLYING THE CONSPIRACY INSTRUCTION TO THE EVIDENCE.SO YOU HAVE A STATE ATTORNEYHERE IN CLOSING ARGUMENT SAYING YOU ARE BEING INSTRUCTED ON CONSPIRACY ANDTAKE CLOSE AATTENTION TO THAT CONSPIRACY INSTRUCTION BASICALLY SAYS THESE UNINDICTED IMMUNIZED COCONSPIRATORS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!COCONSPIRATORS, PALMIERI HIGHLIEDOE HIDE FELL THEY HAD BEFORE HAND KNOWLEDGE OFTHIS MURDER INVOLVED IN CONSPIRACY EVERY ACT IS VIRGINIA LARZELERE$$'S ACT.
ON THE OTHER ISSUES YOU RAISE A NUMBER OF -- DEFECTS!!$$!!!!!!!!!!!!DEFECTS, IN THE PREPARATION AND NOT HIRING EXPERTS, AND I GUESS THAT IT IS PRETTY CLEAR THEY DIDN'T HIRE EXPERTS!!$$!!!!!!!!!!!!EXPERTS, WHICH IS THE BEST EXAMPLE OF AN EXPERT THAT IFTHAT EXPERT HAD BEEN HIRED, AND USED AT TRIAL, WOULD HAVE REALLY PUT THAT INTO THE STATE'S ZMIES THERE WOULD BECKS PERT IN CONCRETEYOUR HONOR STEPHEN HEIDLE KRISTIN PAL MERE WI THE PEOPLE WHO DUFSHED IN CONCRETE DUMPED THEM IN THE CREEK, NOW THERE WAS A CEMENT POT A SILVER POT THATWAS RECOVERED FROM MISS LARZELERE!!$$!!!!!!!!!!!!!!!!LARZELERE'S HOME, IT WAS SENT OFF -- THE -- LAW ENFORCEMENT OFFICER SAID WE SENT CEMENT POT AND CONCRETETHAT ENCASESED WEAPONS OFF TO FDLE TO SEE IF THERE WAS PATCHES THEY COULDN'T DO I WANT IT WAS SENT TO FBI FBI GENERATED A REPORT SAYING THE CONCRETE ENCASESED THE WEAPONS WAS DIFFERENT FROM THE POT AND CONCRETE THAT WAS FOUND IN MISS LARZELERE!!$$!!!!!!!!!!!!!!!!$$LARZELERE'S HOME THE TESTIMONY THIEVES GUNS CONCRETE MIXED AT VIRGINIA LAR LA'S HOME INCORRECT IT WAS REFUTED BY THIS FBI REPORT, WHY WILKINS FAILED TO INTRODUCE THAT FBI REPORTIS INEFFECTIVE ASSISTANCE OFCOUNSEL, WELL, IF HE YOU KNOW A VERY LEAST, INTRODUCED FBI REPORT, WE HIRED CHEMISTRY EXPERT JOHN WOULD ILAND WHO WENT AND HE REVIEWED THE REPORT HE SAID ABSOLUTELY!!$$!!!!!!!!!!!!!!!!!!ABSOLUTELY, IT IS CONCRETE DOESN'T MATCH IT DOESN'T MATCH YOU CAN'T ATTRIBUTE WEATHERING CONDITIONS TO THIS, SO IT IS A VERY LEAST SKWLAK HAVE INTRODUCED THE FBI REPORT SHOWS EXCULTORY EVIDENCE FROM ANNIVERSARY LARZELERE SHOULD HAVE HAD CONCRETE EVIDENCE TALK ABOUTNO REAL DIFFERENCES --
WHAT WAS HIS REASON FOR WHY HE DIDN'T CONSIDER HIRING THOSE EXPERTS?
THIS -- I WILL TELL YOU WHY -- BECAUSE, IT WOULD HAVE COST HIM MONEY OUT OF POCKET LISTEN TO THIS.
THAT IS NOT WHAT HE SAID,99THIS --
LISTEN TO THIS NOW ASSUMING I REALLY DECIDE I HAD WANT TO WASTE SOME MONEY, AND I'M GOING TO GET INSURANCE EXPERT TO LOOK AT THAT I WOULD NOT ASK HIM TO SIGN ANYTHING, I PROBABLY WOULD HAVE HAVE PAID HIM OUTOF MY POCKET.JACK WILKINS FAILED TOO GET MISS LARZELERE TO CLEAR -- DECLARED INDIGENT FOR PURPOSES OF COST AND EXPENSELOOK AT HIS TESTIMONY IN MY BRIEF PAGE 68 AND 69 HE IS ALL OVER EVER THE PLACE SAIDWOULD I HAVE DECLARED HER INDIGENT FOR PURPOSES OF COST EXPENSE TOES HIRE PERSPECTIVES THEN SAYS AT ONE POINT HE SAYS I KNOW IT HAS ALWAYS BEEN MY FEELING THAT IF THERE ARE WAYS FOR INDIVIDUAL DEFENDANT OR $$DEFENDANT'S FAMILY OR RELATIVES TO TAKE CARE OF THE CASE WHEN SHE HAS PRIVATE ATTORNEY IT IS ALMOST LOUED TO ASKO LUDICROUS TO ASK COUNT TO PAY FOR IT..
I IN HIS I GUESS CONTRACTWITH THE FAMILY, WASN'T THE PROVISION THAT HE WOULD GET RETAIN!!$$!!!!!!!!!!RETAINER, AND THEN WOULD HE GET THE 3,000 DOLLARS, A DAY, AND THAT -- THEY WERE ALSO PAY EXPENSES? .
THIS IS A CASE, YOUR HONOR WHERE,$$!!!! --
JACK WILKINS IS TRYING TOSELL VIRGINIA LARZELERE$$'S BOAT TO PAY FOR COSTS AND EXPENSES HE ACTUALLY TESTIFIED AS TO THIS SWEARING TO FALSE TAX RETURNS IN MIDDLE OF TRIAL TALKED ABOUT WENT TO PRISON AFTER, 1991 THE TIME OF THE ZBRAIGS OF TRIAL OF LARZELERE IS WHEN HE WAS SWEARING HE WAS -- SWEARING TO A FALSE TAX RETURN IN MIDDLE OF HIS TRIAL FENN -- FEBRUARY 10TH ANSWERING BAR COMPLAINTS PRIOR TO GIVING CLOSING ARGUMENT RATHER THANRE-- REQUESTING EXTENSION NOT PREPARING FOR CLOSING ARGUMENT ANSWER BARRING COMPLAINT ON FINANCIAL MISDEALINGS DESTROYING FINANCIAL RECORDS, SUBPOENAED BY THE GOVERNMENT, HE IS RUNNING OUT OF HIS OFFICE, WITH THE GIANT BOTTLE OF VODKA, MIDAFTERNOON AND SNORTING COCAINE OFF A STRIP CLUB TOILET SEAT PRETRIAL THIS ORDER.
WITH OUR HELP YOU HAVE EXHAUSTED DIRECT TIME AND REBUTTAL TIME.
THANK THANK YOU.
THANK YOU VERY MUCH.
-- WOULD YOU -- WOULD YOUDIRECT YOUR ATTENTION TO THECONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY, INSTRUCTION, ANDWHETHER THAT WAS WERE FUNDAMENTAL ERROR, ON THE HABEAS!!$$!!!!!!!!!!HABEAS.LET'S TALK ABOUT THE HABEAS RAISING THE POINTS THAT THE THERE WAS NO BASIS TO GIVE ACONSPIRACY INSTRUCTION.
JUDGE, THE -- THE CONSPIRACY ISSUE AROSE, SHE IS NOT CHARGED WITH CONSPIRACY IT AROSE WHEN THEY WANTED TO PUT IN STATE WANTED TO PUT IN COCONSPIRATOR STATEMENTS, AND THEY WERE ALLOWED TO, SHOW THE FOUNDATION FOR CONSPIRACY AND PUT IN THE COCONSPIRATOR STATEMENTS, THAT IS WHY DEFENSE COUNSEL WANTED THE INSTRUCTION, ON THE CONSPIRACY THE JUDGE SAID I'M GOING TO GIVE THAT INSTRUCT!!$$!!!!!!!!!!!!!!INSTRUCTION, I'M GOING TO GIVE THE ENTIRE INSTRUCTION,AND THERE WAS A LARGE CONVERSATION ABOUT THIS AND HE GAVE THE INSTRUCTION, THEY WANTED THE JURY TO KNOWABOUT COCONSPIRATOR STATEMENTS AND HE IS NOT GOING TO GIVE JUST PART OF THEIR SPECIAL INSTRUCTION,I IT IS NOT IF YOU BELIEVE ERROR -- IT IS NOT FUNDAMENTAL ERROR.
WHO REQUESTED IT.
IT IS NOT ERROR AT ALL THE.
WHO REQUESTED THE CONSPIRACY INSTRUCTION.
THEY WANTED THE INSTRUCT!!$$!!!!!!!!!!!!!!INSTRUCTION ON COCONSPIRATORSTATEMENTS, AND THE JUDGE SAID I'M NOT GONNA JUST -- THROW OUT COCONSPIRATOR THERE WHEN IT IS NOT CHARGEDAND IT IS NOT ARGUED I'M GOING TO --
JUDGE WATSON ACTUALLY MADE THE DECISION TO GIVE INDEPENDENT!!$$!!!!!!!!!!!!!!!!!!!!INDEPENDENTLY OF ANYONE ASKING FOR IT?
NO, THEY DISCUSSED IT THEY DISCUSSED WHETHER HE ISGOING TO ALSO DEFINE CONSPIRACY!!$$!!!!!!!!!!!!!!!!!!CONSPIRACY, RATHER THAN THROW OUT OKAY -- HERE IS THE COCONSPIRATOR STATEMENT,WHAT IT IS A CONSPRIATOR.
AGAIN, JUSTICE WELLS ASKED HOW ASKED FOR THE!!$$!!!!THESTRUCTION SOMEONE HAS TO ASK FOR 4I78 ONE BEFORE IT HAPPENS DOESN'T COME OUT OF THIN AIR WOULD YOU ANSWER HIS QUESTION.
DEFENSE ASKED FOR COCONSPIRATOR INSTRUCT SHUFRN THE JUDGE SAID I'M GOING TO GIVE, THE -- THE DEFINED -- WHAT A CONSPIRACYSIGHS NOT JUST GIVE COULD CONSPRIATOR IN A VACUUM IT ICAN'T SAY NEVER CHARGED, AND-- I THINK, JUSTICE, IF IT IS NOT CHARGED, AND YOU CAN STILL PUT IN COCONSPIRATOR STATEMENTS, WITHOUT IT BEINGCHARGED, THERE IS NOTHING WRONG WITH THAT.AND THEN THE DEFENSE ASKED FOR THE INSTRUCTION ON COCONSPIRATOR STATEMENTS.
WELL THERE WOULD HAVE BEEN GIVEN A GENERAL INSTRUCTION ON PRINCIPAL, AND THEN THE DEFENSE ASKED FOR THE COCONSPIRATOR STATEMENT.
YES, SIR.
SO THE TROUBLE THE TRIAL JUDGE HAS TRYING TO INSTRUCTA JURY IS HOW DO WE TELL THEJURY A DIFFERENCE BETWEEN WHAT A PRINCIPAL AND A CONSPRIATOR IS.
EXACTLY, YES, SIR WOULD ILIKE TO SAY, IN THE McDANIELS' REPORT THERE WAS NO MENTION OF SEX ABUSE.AND THE -- THE EXAMPLE THAT I REMEMBER MOST CLEARLY IS HOW UNRELIABLE HIS REPORT WAS WAS THAT HE SAID THE DELIVERY MAN IDENTIFIED JASON, THE ALLEGED THE SON THE ALLEGED KILLER, WHEN HE DIDN'T, THEY SENT ANOTHER INVESTIGATOR OUT BECAUSE THEY DOUBTED McDANIELS' REPORT AND HE SAID NO, IT WAS STEPHEN HEIDLE COMPLETELY DIFFERENT PERSON HE IDENTIFIED, THE REPORT ALSO SAID THAT YOU CAN TALK TO JANET, REMEMBER JANET IS THE ONE HAVE A THAT HIRED THE ATTORNEY TALKED WITH HIMON A DAILY BASIS THEY TALKEDWITH HER ALL THE TIME, AND MR. HAWES OF ITTED TO THAT ITALKED TO HER ABOUT THAT GUNINFORMATION WE HAD CONVERSATIONS!!$$!!!!!!!!!!!!!!!!!!!!!!!!CONVERSATIONS, BUT VIRGINIA SAID, BUT NOBODY WILL TALK TO YOU ABOUT CHILD ABUSE, SHE NEVER MENTIONS SAKES ABUSE REPORT NEVER MENTIONS SEX ABUSE, DESPITE THAT THE FROM MR. WILKINS SAID THAT HE KNOWS THAT IT WHEN HE SAWTHAT IN THE REPORT WOULD HAVE ASKED VIRGINIA THAT, THIS IS A CASE WHERE SHE OBFUSCATED HER BACKGROUND THIS STRAIGHT WITHIN THE CASES OF POWER, SHERI ALL THESE CASES WHERE -- AND, AND STRICKLAND ITSELF SAYS AN ATTORNEY CAN ONLY DO AS MUCH EES.
WITH -- YOU HAVE EXTENDEDBEYOND ALL OF YOUR TIME.
THANK YOU.
THANK YOU VERY MUCH WE'LLTAKE THE CASE UNDER ADVISE!!$$!!!!!!!!!!ADVISEMENT.