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.
Rodney Tyrone Lowe v. State of Florida
SC05-633, SC05-2333
>>> ALL RISE.
HEAR YEA HEAR YE HEAR EYE THE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION, ALL THOSE HAVING
BUSINESS BEFORE THIS COURT,
DRAW NIGH GIVE ATTENTION AND
YOU SHALL BE HEARD.
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA AND THIS
HONORABLE COURT.
.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
YOU MAY BE SEATED.
GOOD MORNING, FRIENDS,
WELCOME TO THE ORAL ARGUMENT
CALENDAR FOR MONDAY,
NOVEMBER 5th.
FUR CASE IS LOWE VERSUS STATE
OF FLORIDA.
STATE, READY TO PROCEED.
YES, YOUR HONOR.
MAY IT PLEASE THE COURT, RACHEL
DAYS, I'M HERE ON BEHALF OF
RODNEY LOWE.
MR.^LOWE WAS GRAND A PENALTY
PHASE AFTER THE FIRST
CONVICTION PROCEEDINGS BUT HAS
APPEALED THE DENIAL OF A NEW
TRIAL, AND DURING THING OR
ARGUMENT I WOULD LIKE TO
CONCENTRATE ON ARGUMENT NUMBER
ONE IN THE BRIEF WHICH IS
MR.^LOWE WAS DENIED AN
ADVERSARIAL TESTING THAT THE
GUILT PHASE OF HIS TRIAL.
BECAUSE THE JURY NEVER KNEW HE
WAS NOT IN FACT THE SHOOTER IN
THE CRIME, THAT HE DID NOT
PRE-MEDITATE THE CRIME AND THAT
DWAYNE BLACKMAN THE STATE'S
STAR WITNESS, AGAINST MR.^LOWE
WAS THE SHOTTER AND THIS
ARGUMENT AS ELEMENT OF THE
ASSISTANCE -- INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL AND
NEWLY DISCOVERED EVIDENCE THAT
SUPPORTS THE FACT THAT
MR.^BLACKMAN WAS THE SHOOTER.
ANY EVIDENCE TO SUPPORT THE
FACT THAT HE WAS NOT A MAJOR
PARTICIPANT IN THE ROBBERY?
I THINK HE WAS IN ANYTHING A
MINOR PART OF IT.
WHY DO YOU SAY MINOR, DID HE
KNOW THEY WENT TO THE STORE TO
COMMIT A ROBBERY.
IT'S NOT ENTIRELY CLEAR WHAT
HE KNEW FROM THE RECORD.
WAS THERE EVIDENCE THE GUN
USED WAS MR.^LOWE'S GUN.
NOT FROM THE PRIOR
CONVICTION PROCEEDINGS, IN FACT
THE EVIDENCE FROM THE
PROCEEDINGS WAS DWAYNE BLACKMON
WAS THE SHOOTER AND WAS
CARRYING --
YOU RELY JUST ON
POST-CONVICTION AND I'M TALKING
ABOUT EVIDENCE FROM THE
ORIGINAL TRIAL, THAT IS NOT
REFUTED BY EVIDENCE IN THE
POSTCONVICTION PROCEED.
THE EVIDENCE FROM THE
ORIGINAL TRIAL HAS BEEN
DISCREDITED BECAUSE THE
EVIDENCE FROM THE ORIGINAL
TRIAL WAS LARGELY THE EVIDENCE
OF DWAYNE BLACKMON, THE STATE'S
WITNESS AND THE ACTUAL SHOOTER.
SO --
TO SAY DISCREDITED, THOUGH,
NOW IS DISPUTED BUT HASN'T BEEN
DISCREDITED.
THE JURY CERTAINLY WAS CAPABLE
OF LOOKING AT THE EVIDENCE AND
LOOKING AT CREDIBILITY OF THE
TESTIMONY BUT YOU HAD LOWE'S
CONFESSION.
MR.^LOWE ADMITTED TO BEING
AT THE CRIME SCENE, HE DID NOT
ADMIT TO BEING THE SHOOTER.
I UNDERSTAND BUT THAT
DOESN'T MAKE HIM A MINOR
PARTICIPANT.
HE ADMITTED PARTICIPATING IN
THE ROBBERY, DIDN'T HE?
SURE.
BUT IN ORDER FOR THE JURY TO
HAVE CONVICTED MR.^LOWE ON THE
FACTS PRESENTED TO THE JURY
THEY HAD TO HAVE BELIEVED
DWAYNE BLACKMON THE WITNESS AND
HE STATED CATEGORICALLY AND
TALKED ABOUT MR.^LOWE HAVING
PREMEDITATED THE CRIME AND
HAVING ACTED ALONE AND TALKED
ABOUT HIMSELF AS BEING
COMPLETELY UNINVOLVED BECAUSE
HE WAS AT HOME IN BED WITH A
SORE THROAT.
LET ME ASK YOU, YOU HAVE A
GENERAL VERDICT, PREMEDITATION
AND FELONY MURDER SO THERE WAS
-- INSTEAD OF THERE BEING A
FINDING, I THINK YOU WOULD HAVE
A STRONGER CASE IF THERE HAD
BEEN A FINDING OF ONLY
PREMEDITATED MURDER BUT FOR
FELONY MURDER THERE HAS TO BE A
ROBBERY AND SOMEBODY IS SHOT IN
THE COURT OF THE ROBBERY.
MY CERTAIN IS, BECAUSE AGAIN
THE CASE IS TROUBLING AND I
OBVIOUSLY THE TRIAL JUDGE FOUND
IT WAS ENOUGH TO GIVE A NEW
PENALTY PHASE BUT WHAT REFUTES
THE ADMISSION BY MR.^LO THAT HE
WAS -- -- MR.^LOWE THAT HE WAS
-- WENT TO THE STORE TO COMMIT
A ROBBERY?
IS THERE ANY -- THAT IS WHAT I
THINK THAT I --
THERE IS NOTHING IN THE
RECORD THAT REFUTES THAT
HOWEVER, IF YOU LOOK AT THE
STATE THEORY AS EVIDENCED BY
OPENING STATEMENT, THE EVIDENCE
IT PRESENTED AT TRIAL AND ITS
CLOSING ARGUMENT IT WE CLEARLY
PREDICATED ITS CASE ON
PREMEDITATION AND MR.^LOWE
BEING THE SOLE ACTOR AND
SHOOTER, AND --
I DON'T KNOW WHY -- THAT MAY
BE TRUE.
BUT FOR US TO GRANT A NEW GUILT
PHASE OUR CONFIDENCE OR THE
CONFIDENCE IN THE OUTCOME MUST
BE UNDERMINED.
IF THE OTHER VIABLE THEORY WAS
FELONY MURDER, AND AGAIN THERE
WAS A GENERAL VERDICT AND
NOTHING HAS REFUTED THE FACT
THAT MR.^LOWE WAS A PARTICIPANT
IN THE ROBBERY, THEN WHY --
WHAT IS THE BASIS FOR GRANTING
A NEW GUILT PHASE?
WELL, BECAUSE THE -- IT WAS
SO CLEARLY PRESENTED AS A
PREMEDITATION CASE.
AND MR.^LOWE BEING THE SHOOTER.
YOU HAVE TO LOOK AT WHAT THE
JURY BELIEVED.
THE JURY HAD TO BELIEVE BLACK
MAN'S TESTIMONY IN ORDER TO
COME OUT WITH THE -- IF THEY
BELIEVED BLACKMON --
AGAIN IF WE HAD A TRIAL AND
THE CONFESSION COMES IN OF
MR.^LOWE, YOU HAVE FELONY
MURDER, JUST BASED ON--
IT IS NOTHS WHETHER WE HAVE
A NEW TRIAL BUT WHAT THE JURY
WOULD HAVE BELIEVED AT THE OLD
TRIAL AND IN -- INEFFECTIVE
ASSISTANCE OF COUNSEL.
UNDER BRADY.
IN THE CASE THE JURY --
BUT I THINK THE POINT IS WE
HAVE A SITUATION IN WHICH THERE
IS A BASIS OF THE EVIDENCE FOR
CONVICTION OF FELONY MURDER AND
ON THAT BASIS -- ON THAT BASIS,
THEN THERE IS -- HOW CAN THERE
BE RELIEF TO GRANT A NEW TRIAL?
HE'S GUILTY OF CAPITAL MURDER.
I MEAN, THE COURT GRANTED
RELIEF IN OTHER SITUATIONS,
TOO, WHERE THERE IS STILL
MURDER BUT THE CASE -- THE
LIGHT IN WHICH THE CASE NEEDS
TO BE VIEWED IS SO RADICALLY
DIFFERENT TO THAT WHICH WAS
PRESENTED TO THE JURY THAT IN
NO WAY DID MR.^LOWE RECEIVE A
FAIR ADVERSARIAL TESTING.
AND SO, BECAUSE IT IS JUST ONE
JUROR, BELIEVED THAT
PREMEDITATION THEORY ARGUED
VERY, VERY FORCEFULLY BY THE
STATE, THEN HE SHOULD HAVE A
NEW TRIAL.
LET'S GO BACK TO THE ISSUE
OF ADMISSIBILITY.
YOU HAVE MADE A CASE IN YOUR
REPLY BRIEF THAT YOU DON'T KNOW
WHETHER YOU COULD COME IN -- IT
WOULD COME IN AS DIRECT
EVIDENCE OR ME.
.
IS THAT SOMETHING -- OR
IMPEACHMENT, IS THAT SOMETHING
FOR US TO CONSIDER?
THAT IS THAT THERE ISN'T AT
THIS POINT OR AT LEAST IF WE
MUST ANALYZE WHETHER THE
STATEMENTS THAT BLACK MANN
ALLEGEDLY -- BLACKMON MADE TO
PEOPLE, WOULD BE DIRECT
EVIDENCE OR IMPEACHMENT OF WHAT
HE SAID?
WHAT IS YOUR POSITION ON THAT.
IT SOMEWHAT DEPENDS UPON
WHAT THE STATE'S CASE IN CHIEF
WOULD BE AT A NEW TRIAL WHETHER
THEY WENT ON THE SAME VERY
STRONG ARGUMENT OF
PREMEDITATION --
WHAT IS YOUR STRONGEST BASIS
FOR SAYING ALL OF THE EVIDENCE
THAT -- OF BLACKMON BEING THE
SHOOTER, WOULD BE -- COME IN AS
DIRECT SUBSTANTIVE EVIDENCE?
CERTAINLY IT WOULD --ED.
I MEAN, IT MATTERS TO ME
WHETHER IT DOES OR NOT.
WHETHER --
RIGHT, FIRST OF ALL, IT
WOULD COME IN AS IMPEACHMENT
AND THE CONTENTIOUS THAT THAT
IS NOT AN ISSUE BUT AS FAR AS
COMING IN AS DIRECT EVIDENCE, I
THINK YOU'VE GOT -- IT REALLY
DEPENDS WHAT THE STATE DOES
WITH BLACKMON'S PRIOR
TESTIMONY.
BUT I WILL SO MAKE THE ARGUMENT
IN THE BRIEF ALLUDING TO THE
CHAMBERS VERSUS MISSISSIPPI AND
HOLMES VERSUS SOUTH CAROLINA
ARGUMENT THAT IT HAS TO BE ABLE
TO COME IN IN A SENSE, A
CONSTITUTIONAL RIGHT TO PRESENT
A DEFENSE IS -- WILL {TUFERM}
ANY KIND OF -- TRUMP ANY KIND
OF EVIDENTIARY EXCLUSION ON THE
GROUNDS OF HEARSAY.
BUT I STILL DON'T UNDERSTAND
WHY YOU WOULD THINK THIS WOULD
BE SUBSTANTIVE EVIDENCE, AS
OPPOSED TO IMPEACHMENT
EVIDENCE.
IT IS CLEAR THAT ALL OF THESE
PEOPLE ARE SAYING THAT AT SOME
POINT BLACKMON CONFESSED TO
BEING THE SHOOTER.
OF THIS ROBBERY.
THAT IS CLEARLY HEARSAY,
CORRECT?
IT IS HEARSAY.
SO HOW DO YOU GET THIS IN AS
SUBSTANTIVE EVIDENCE VERSUS
IMPEACHMENT EVIDENCE OF
BLACKON.
WE REFERRED TO A NUMBER OF
HEARSAY EXCEPTIONS IN THE
BRIEF.
I THINK IT IS -- AMOUNTS TO A
STATEMENT AGAINST INTEREST.
IF THE COURT DOESN'T MIND IT
AMOUNTS TO A STATEMENT AGAINST
INTEREST I REST ON MY ARGUMENT
BASED ON THE HOLMES VERSUS
SOUTH CAROLINA CASE WHICH VERY
STRONGLY REITERATES THE FACT
THAT THE CONSTITUTIONAL RIGHT
TO PRESENT A DEFENSE IS --
HOW DO WE DEAL WITH THE FACT
THAT NOW WE HAVE ALL THESE
PEOPLE AFTER THE FACT SAYING
BLACKMON, EXCEPT FOR MILLER AND
CARTER, WE HAVE PEOPLE WHO,
AFTER THE FACT, SAYING THAT
MR.^BLACKMON CONFESSED TO BEING
THE SHOOTER.
NOW WE HAVE MR.^BLACKMON WHO
DIED IN 2003.
CORRECT.
SO WHAT WE WOULD HAVE AT
TRIAL, SUPPOSEDLY, IS
MR.^BLACKMON'S TRIAL TESTIMONY?
READ INTO EVIDENCE?
I THINK THE STATE WOULD DO
THAT, YES.
AND THEN WE'D HAVE THESE
PEOPLE SAYING THAT MR.^BLACKMON
CONFESSED TO HAVING BEEN THE
SHOOTER.
OKAY.
AND WHICH EVIDENTIARY RULING
ARE YOU SAYING THIS -- HIS
STATEMENT TO ALL OF THESE
PEOPLE WOULD BE A STATEMENT
AGAINST PENAL INTERESTS.
YES, YOUR HONOR.
OKAY.
AT WHAT POINT DID THESE NEW
WITNESSES COME FORWARD AND SAY
WHY THAT HADN'T COME FORWARD
BEFORE.
YES, YOUR HONOR, FIRST OF
ALL, SOME OF THESE WITNESSES
ARE NOT NEW, AS JUSTICE QUINCE
REFERRED, LISA MILLER AND BEN
CARTER -- LISA MILLER MADE A
CONSTANT EFFORT TO CONTACT THE
STATE, THROUGHOUT THE YEARS,
SINCE MR.^LOWE'S TRIAL --
ACCORDING TO THEIR
TESTIMONY.
AT THE EVIDENTIARY HEARING
AND THEN CARTER WAS AVAILABLE
AT THE TIME.
JUST A TRIAL COUNSEL -- THE
TRIAL COUNSEL DIDN'T LOOK FOR
HIM.
LISA GROWNING WAS THE PERSON
WHO TESTIFIED AT THE SECOND
EVIDENTIARY HEARING AND DWAYNE
BLACKMON MADE THE STATEMENT TO
HER IN THE FIRST HALF OF 2003,
SHE WAS HIS GIRLFRIEND AT THE
TIME OF HIS DEATH AND IT WAS
COMPARATIVELY RECENT THAT
CONFESSION.
MICHAEL LEE WAS IN THE COUNTY
JAIL WITH -- AT THE TIME THAT
WAS COMING SOON AFTER
MR.^LOWE'S TRIAL AND BLACKMON
TALKED TO MICHAEL LEE PRETRIAL,
PRE-MR.^LOWE'S TRIAL AND DAVID
SIMPSON WAS SOMETIME AFTER THE
CONFESSION --
SOME OF THESE WITNESSES HAVE
TESTIFIED THAT THEY WERE AFRAID
TO COME FORWARD BEFORE.
LISA WAS NOT AFRAID TO COME
BEFORE AND HE DIDN'T MAKE THE
CONFESSION UNTIL LATE IN THE
GAME AND MCQUAID SAID HE WAS A
VIOLENT AND ABUSIVE MAN AND SHE
WAS AFRAID AND DIDN'T FEEL
COMFORTABLE COMING FORWARD.
THE TRIAL COURT, MAKE A
CREDIBILITY DETERMINATION OF
THESE WITNESSES' TESTIMONY?
WE HAVE SEEN BEFORE WHERE THE
DEFENDANT IS CONVICTED AND
SENTENCED TO DEATH AND SEVERAL
YEARS LATER, SOME NEFARIOUS
CHARACTER WHO BEARS SOME
RELATIONSHIP WITH THE DEFENDANT
DIES AND THEN, WITNESSES
SUDDENLY COME OUT AND SAY, JUST
BEFORE HE DIED OR PREVIOUS TO
HIS DEATH HE CONFESSED TO ME
THAT HE WAS THE MURDERER, AND
WAS AFRAID TO COME OUT BECAUSE
HE WAS A DANGEROUS CHARACTER.
WHAT CREDIBILITY DETERMINATION
DID THIS COURT -- DID THE TRIAL
COURT MAKE.
MCQUAID MICHAEL LEE, AND
DAVID {STIFERM}SON THE COURT
DIDN'T REACH A CREDIBILITY
FINDING BECAUSE IT GRANTED
PENALTY PHASE RELIEF BEFORE
HEARING EVIDENCE OF THAT.
WE HAVE AFFIDAVITS IN THE
RECORD FROM MR.^MCQUAID AND
MR.^SIMPSON.
BUT THE COURT DID NOT REACH
MAKING ANY KIND OF CREDIBILITY
FINDING ON THOSE WITNESSES AND
DID NOT --
DID THE COURT IN ANSWER TO
JUSTICE CANTERO -- THANK YOU,
MONDAY MORNING.
WELCOME TO THE COURT!
MADE A CREDIBILITY
DETERMINATION AS TO CARTER AND
MILLER, ALTHOUGH THERE WAS
INCONSISTENCIES THAT THEY WERE
-- HE FOUND THEM TO BE CREDIBLE
FOR THE PURPOSE OF A NEW
PENALTY PHASE, CORRECT.
EXACTLY, YOUR HONOR AND LISA
AS WELL.
LET'S GO TO THE EARLIEST ONE
THAT HE ALLEGEDLY CONFESSED TO
AND I WILL ASK THE STATE ABOUT
BEN CARTER.
HE WAS LISTED BY THE STATE AS A
WITNESS.
CORRECT, YOUR HONOR.
WHAT DOES BEN CARTER SAY AS
TO WHEN THE -- BLACKMON
ALLEGEDLY STATED IT WAS THAT HE
WAS THE SHOOTER?
IT WAS VERY EARLY ON IN THE
PROCEEDINGS, BEFORE MR.^LOWE
WAS TRIED.
SO, AND, THEREFORE, AND
CARTER WAS LISTED AS A WITNESS
FOR THE STATE.
WHAT DOES THE STATE SAY AS THE
REASON THAT THEY LISTED HIM AS
A WITNESS?
THAT I DO NOT KNOW, YOUR
HONOR.
BUT THEY AND THE JUDGE FOUND
THAT THERE IS NO EVIDENCE THAT
THE STATE NEW THAT CARTER AND
MILLER HAD THIS EVIDENCE THAT
THEY HAD -- BLACKMON CONFESSED
TO THEM.
THERE WAS NO BRADY VIOLATION
ALLEGED AS FAR AS BEN CARTER
WAS CONCERNED AND IF YOU RECALL
FROM THE RECORD OF THE
POSTCONVICTION HEARING, BEN
CARTER ONLY CAME FORWARD TO
TESTIFY WITH THIS UTMOST
RELUCTANCE.
WHAT WOULD THE CIRCUMSTANCES
-- AND THIS WOULD BE RELEVANT
FOR CHAMBERS, UNDER WHICH BEN
CARTER RECEIVED THE CONFESSION
OF BLACKMON?
WHAT WAS THEIR RELATIONSHIP AND
HOW DID IT COME THAT BLACKMON
CONFESSED TO HIM.
BEN CARTER WAS DWAYNE
BLACKMON'S COUSIN, A CLOSE
RELATIVE OF BEN CARTER AND AT
THE TIME, LISA MILLER WAS A
TEENAGE GIRL WHO WAS BEN
CARTER'S GIRLFRIEND.
AND CARTER, MILLER, BLACKMON
AND A COUPLE OF OTHER PEOPLE
WERE HAVING A DISCUSSION, AND
BLACKMON BOLDLY STATED THAT HE
HAD BEEN THE SHOOTER.
WHAT DO YOU MEAN, THEY WERE
HAVING A DISCUSSION.
OUTSIDE SOMEBODY'S HOUSE.
AND AT THAT POINT LOWE WAS
IN --
AWAITING TRIAL IN THE INDIAN
RIVER COUNTY JAIL.
IS THERE ALSO AN INDICATION
IN THE RECORD THAT MR.^CARTER
WAS DEPOSED?
I HAVE TO -- I DON'T RECALL,
YOUR HONOR.
I'M SORRY.
THERE IS A NOTICE OF TAKING
HIS DEPOSITION IN THE SCHEDULE,
I THINK IN.
I DON'T RECALL HAVING SEEN
THE DEPOSITION.
JANUARY OF 1991.
OR SOMETHING.
AND DO WE KNOW, SEEMS LIKE THAT
WOULD BE IMPORTANT.
THAT WAS WHEN THE FIRST DEFENSE
COUNSEL WAS ON THE CASE.
AND BEFORE THE TRIAL COUNSEL
CAME ONTO THE CASE.
DO WE KNOW WHAT HAPPENED FIRST
OF ALL, WHY CARTER WAS
SCHEDULED FOR A DEPOSITION AND
THEN, WHETHER THE DEPOSITION
WAS CANCELLED, PERHAPS BECAUSE
THE LAWYER WAS COMING OFF THE
CASE AND THEN, WHAT HAPPENED
WITH PASSING ON INFORMATION --
I WOULD HAVE TO CHECK THAT,
YOUR HONOR, I'M SORRY. I CAN'T
RECALL THE ANSWER TO THAT.
NOW INTO YOUR REBUTTAL, MAY
--
I WILL RESERVE MY TIME FOR
REBUTTAL.
THANK YOU.
MS.^CAMPBELL YOU WILL
REPRESENT THE AND LEE'S
RESPONSE AND THE CROSS
APPELLATE ARGUMENT.
LESLIE CAMPBELL WITH THE
ATTORNEY GENERAL'S OFFICE.
MAY IT PLEASE THE COURT.
WE BELIEVE THAT THE TRIAL COURT
CORRECTLY FOUND THAT IT WAS NOT
REQUIRED TO HAVE A NEW TRIAL, A
NEW GUILT PHASE BECAUSE OF THE
FELONY MURDER.
AND THE COURT HAS BEEN FOCUSING
ON THE CONFESSION AND THE
CONFESSION IS VERY IMPORTANT IN
THIS PARTICULAR CASE.
MR.^LOWE CONFESSED TO HIS
GIRLFRIEND, PATTY WHITE, AND HE
ALSO CONFESSED TO THE POLICE.
WHAT EXACTLY DID HE SAY?
SPECIFICALLY HE SAID THAT
ALL THREE, MR.^BLACKMON,
MR.^LOWE AND MR.^SAILOR WENT TO
THE NEW PACK CONVENIENCE STORE
IN ORDER TO -- NU-PACK
CONVENIENCE STORE IN ORDER TO
ROB THE CONVENIENCE STORE
BECAUSE EACH NEEDED MONEY FOR
DIFFERENT REASONS.
HIS CONFESSION ALSO STATED THAT
HE STAYED IN THE CAR.
SUPPOSEDLY STAYED IN THE CAR
AND MR.^BLACKMON GOT OUT OF THE
CAR AND WAS THE LOOKOUT.
HE NEVER WENT -- MR.^BLACKMON
NEVER WENT INTO THE STORE.
MR.^SAILOR WENT INTO THE STORE
PER MR.^LOWE'S CONFESSION AND
WHEN HE CAME OUT SAID THAT HE
HAD SHOT THE CLERK, BECAUSE SHE
DIDN'T ACT FAST ENOUGH.
WHAT HAS EVER HAPPENED TO
MR.^SAILOR?
THERE WAS NO EVIDENCE TO
PROSECUTE MR.^SAILOR, ALL --
WAS HE EVER ACTUALLY -- DID
THE POLICE EVER TALK TO HIM?
DID THE DEFENSE EVER TALK TO
HIM?
AND I MEAN, YOU KNOW, HE GAVE
THEM A NAME AND WE'VE HEARD
THAT NAME THROUGHOUT THIS.
NOTHING.
I DON'T KNOW IF THE DEFENSE
TALKED TO MR.^SAILOR.
I DON'T RECALL THAT.
I BELIEVE THAT THE POLICE DID
BUT THERE WAS NOTHING TO GO
FORWARD AGAINST MR.^SAILOR OR
MR.^BLACKMON.
WHAT WE HAVE AS FAR AS THE {FD}
IS CONCERNED IS WE HAVE
MR.^LOWE'S FINGER PRINT AND
ONLY MR.^LOWE'S FINGER PRINT IN
THE STORE.
WAS THE GUN EVER FOUND.
THE GUN WAS GIVEN TO THE
STATE, TURNED OVER TO THE
STATE.
WHAT FINGERPRINTS WERE ON
THEM GUN.
TESTIFIED TO BE MR.^LOWE'S
GUN.
NO, NO, WHAT FINGERPRINTS.
I DON'T BELIEVE -- IF THERE
WERE FINGER PRINTS -- THE GUN
WAS LINKED TO MR.^LOWE.
MR.^BLACKMON TOLD POLICE HE
HAD THE WEAPON, RIGHT.
HE PURCHASED THE WEAPON AND
-- PURCHASED THE WEAPON USING
DRUG PROCEEDS.
HE TRADED IT FOR COCAINE OR
WHATEVER -- THE JURY KNEW THIS
AND HAD GIVEN TO IT MR.^LOWE,
THE GUN TO MR.^LOWE FOR HIS
BIRTHDAY THE MONTH BEFORE.
IF WE READ THE ENTIRE
TRANSCRIPT OF THE DIRECT APPEAL
WOULD IT BE ACCURATE TO SAY
THAT THE STATE PROSECUTED THIS
CASE BASED ON A THEORY THAT
LOWE ACT -- LOWE ACTEDDED
ALONE, WAS THE SHOOTER AND IT
WAS A PREMEDITATED KILLING.
PREMEDITATED UNDER FELONY
MURDER, YES.
WOULD IT BE ACCURATE THE --
WAS MR.^LOWE AND MR.^LOWE
ALONE.
AND IT WAS A PREMEDITATED
MURDER.
YES.
SO THEY DIDN'T PRY TO -- TRY
TO PROSECUTE IT AS A ROBBERY
GONE BAD AND EVEN IF THE JURY
FINDS OTHER PEOPLE WERE
INVOLVED, STILL HE'S A
PARTICIPANT.
THE STATE DID TALK ABOUT,
YOU KNOW, THE ROBBERY SO THERE
WAS THAT FELONY MURDER THEORY.
RIGHT.
AND YOU ASKED FOR THE
INSTRUCTIONS.
RIGHT.
BUT YOU AGREED THAT IT WAS
MAINLY A PREMEDITATED MURDER
CASE.
HE WENT INTO THE STORE.
THERE WAS TESTIMONY THAT --
FROM MR.^LOWE HIMSELF THAT HE
KNEW THE VICTIM.
FROM ANOTHER STORE.
NOW, THE FACT THAT I'M -- I
MEAN, THE THING I'M CONCERNED
ABOUT IS BEN CARTER.
WHAT DID THE STATE LIS -- LIST
BEN CARTER FOR.
I DON'T THINK IT CAME OUT IN
THE RECORD, YOUR HONOR AND I
DON'T KNOW WHY THEY LISTED HIM
BUT HE WAS PART OF MR.^--
MR.^BLACKMON'S COUSIN.
HE WOULD HAVE BEEN WITH THEM AT
THE TIME.
AND THE -- WITH LOWE
CONFESSING THAT HE SAID HE WAS
A DRIVER IN THE GETAWAY CAR, HE
IDENTIFIED BLACKMON AND SAILOR
LIKE RIGHT AT THE BEGINNING,
THIS ISN'T LIKE BLACKMON IS
SOMEBODY THAT COMES OUT OF
NOWHERE, HE'S SAID FROM THE
BEGINNING BLACKMON WAS
INVOLVED.
CORRECT?
YES.
THE STATE HAS TO BE
CONCERNED THAT BLACKMON MIGHT
BE INVOLVED.
NO, YOUR HONOR.
THE STATE IS NOT CONCERNED --
NO, NO, AT THE TIME.
INITIALLY, SURE, YEAH.
SO THEY HAVEN'T -- ARE YOU
TELLING ME THAT THE STATE NEVER
-- THERE IS NO EVIDENCE THAT
THE STATE WENT AND TOOK A
STATEMENT FROM BEN CARTER?
I DON'T RECALL THAT IN THE
RECORD.
I WOULD ASSUME THAT THERE WAS A
STATEMENT FROM MR.^CARTER.
BUT ISN'T THAT PRETTY
IMPORTANT AS TO WHAT -- SO
CARTER SAID NOTHING ABOUT
BLACKMON BEING INVOLVED.
I DON'T BELIEVE THAT THERE
IS ANYTHING THAT HE SAID THAT
MR.^CARTER -- THAT MR.^BLACKMON
WAS INVOLVED.
THAT COMES OUT AFTER.
AT THE EVIDENTIARY HEARING.
LET'S STOP HERE JUST FOR A
MOMENT BECAUSE, WASN'T IT
MR.^CARTER WHO ACTUALLY WAS THE
ONE WHO WENT TO THE POLICE,
BASED ON INFORMATION HE GOT
FROM MR.^BLACKMON OR -- THAT'S
THE WAY I KIND OF REMEMBER IT
--
THAT'S HOW I RECALL IT BUT
IT WAS MR.^LOWE WHO CAME TO
MR.^BLACKMON, AND CONFESSED TO
MR.^BLACKMON THAT -- EITHER
THAT NIGHT OR THE NEXT DAY AS
TO WHAT HAD TRANSPIRED.
THEN BLACKMON SPOKE TO
MR.^CARTER.
IT -- IT WASN'T UNKNOWN.
WHAT IS VERY IMPORTANT HERE,
TWO THINGS:
MR.^LOWE'S CONFESSION IS THAT
MR.^SAILOR IS THE SHOOTER.
THE JURY KNEW FROM THE GET-GO
THAT MR.^BLACKMON, MR.^SAILOR
AND MR.^LOWE CASED THIS
CONVENIENCE STORE TWICE.
THAT --
WHO TESTIFIED TO THAT.
MR.^BLACKMON AND --
BLACKMON AGREES THAT HE WAS
-- HE SAYS HE CASED IT WITH
LOWE.
I BELIEVE THAT IS IN HIS
TESTIMONY, THAT THERE WAS AN
INITIAL ATTEMPT AND IT DIDN'T
GO FORWARD.
AND THEN, AFTER THAT, MR.^LOWE
WENT BY HIMSELF.
TWO ATTEMPTS.
AND MR.^LOWE WENT BY HIMSELF
ON THE 3rd OF JULY.
EXPLAIN THEN, MR.^LOWE'S
FINGERPRINTS ARE ON THE
HAMBURGER OR SOMETHING, WHAT
WAS THAT -- WHERE WAS THAT
SUPPOSED --
IN THE MICROWAVE AND THERE
WAS A COLD CAN OF SODA SITTING
ON THE COUNTER.
HOW CLOSE WAS WHERE THE
HAMBURGER OR THE MICROWAVE WAS
TO WHERE THE VICTIM WAS SHOT.
THAT I CAN'T --
A BIG CONVENIENCE STORE.
ONLY IT IS A LARGE, LARGE
CONVENIENCE STORE, NO, YOUR
HONOR.
NOT LIKE, EVEN UNDER
MR.^LOWE'S -- OR UNDER THE
THEORY, I GUESS I'M TRYING TO
FIGURE OUT WHERE LOWE, IF HE
ACTED ALONE, HOW HE COULD BE IN
TWO PLACES AT THE SAME TIME.
HE MICROWAVED HIS HAMBURGER
AND THEN WENT TO -- COULD HAVE
BEEN SOME -- SPECULATING.
SOMEONE ELSE THINLY STORE,
MICROWAVED HIS HALF BURGER WHEN
THEY LEFT, HE WENT UP TO THE
CASHIER.
--
PRESENTED AT TRIAL TRIAL,
FINGERPRINTS ON THE HAMBURGER
--
ON THE.
THE JURY COULD HAVE
DETERMINED HE WAS ACTING WITH
OTHER PEOPLE AND CONVICTED ON
FELONY --
I DON'T BELIEVE SO, YOUR
HONOR AND THIS IS -- HE WAVE
STEVEN LUKEY, THE ONLY --
LEUDTKE, THE JUST AFTER THE
MURDER EYEWITNESS AND PLACES
ONE PERSON COMING OUT OF THAT
STORE AND PLACES THAT PERSON
GETTING INTO PATTY WHITE'S CAR,
WEARING A UNIFORM THAT IS
SIMILAR TO THE GATOR LUMBER
COMPANY'S UNIFORM.
IS HE THIS ONE THAT TALKED
ABOUT A {SKRAING}BLY BEARD.
YES.
AND OTHER THREE HAVE A
BEARD.
NOT TO MY RECOGNIZE, NO,
YOUR HONOR BUT WE ALSO -- AND
THIS, WE LEARNED FROM THE
EVIDENTIARY HEARING TESTIMONY,
MR.^BLACKMON IS HUGE.
{GROS} GROWN IG TESTIFIED HE'S
A VERY LARGE MAN AND NO ONE
WOULD MISTAKE HIM FOR MR.^LOWE.
MR.^LOWE, YOU KNOW, 5'9",
SOMETHING IN THAT AREA.
AND BLACKMON.
IS FOOTBALL HUGE.
I MEAN, HE'S DONE -- AN
IMPOSING, IMPOSING INDIVIDUAL
-- OR HE WAS.
IN ANY CASE, MR.^LOW'S --
MR.^LEUDTKE'S DESCRIPTION OF
MR.^LOWE OR THE DESCRIPTION OF
WHO HE SAW COMING OUTFITS
MR.^LOWE'S CHARACTER.
LET ME GO BACK TO THE ISSUE
OF CARTER AND MILLER.
CARTER IS THE COUSIN OF
BLACKMON.
SO BLACKMON, IF IS CARTER THAT
WENT TO THE POLICE TO SAY IT
WAS LOWE, THEN, YOU KNOW, THEY
HAD THIS CONVERSATION.
BUT JUDGE FINDS THAT EVEN
THOUGH THERE ARE INCONSIST
ATTORNEYSES BETWEEN MILLER AND
-- INCONSISTENCIES BETWEEN
MILLER AND CARTER HE FINDS THEM
CREDIBLE.
AND MY CONCERN IS THE STATE IS
CATEGORICALLY SAYING THIS IS
ONE PERSON INVOLVED AND WE
THINK THIS IS NOT CREDIBLE.
WHAT IS CARTER, IN TERMS OF
SAYING THIS WAS SHORTLY AFTER
THE CRIME, THAT BLACKMON SAID
TO ME, YOU KNOW, SOMEONE'S
GRANDMOTHER'S HOUSE, AND TWO
PEOPLE HEARD IT AND HAVE BEEN
FOUND TO CREDIBLE, MY CONCERN
IS THAT -- THIS IS LIKE A
TOTALLY DIFFERENT CASE, AND IS
A DIFFERENT CASE THAN THE JURY
HEARD AND THERE MAY BE A BASIS
TO FIND FELONY MURDER BUT THE
STATE IS SO CONVINCED THAT LOWE
ACTED ALONE IS I GUESS WHAT
CONCERNS ME.
WE HAVE ONLY EVIDENCE THAT
LOWE WAS THERE AND FOR ME TO
SPECULATE THERE WERE OTHER
PEOPLE IN THE STORE, OR AROUND
THE STORE WOULDN'T BE
CONSISTENT WITH THE EVIDENCE OR
EVIDENCE, ALSO IS -- LET ME
BACK UP.
WE HAVE THE TRIAL JUDGE MAKING
A CREDIBILITY FINDING BUT THE
STATE WOULD SUGGEST TO YOU THAT
THAT IS NOT I TRUE CREDIBILITY
FINDING.
I KNOW THE JUDGE SAYS HE FINDS
THEM CREDIBLE, BECAUSE THEY ARE
CONSISTENT IN SAYING
MR.^BLACKMON CONFESSED IN SOME
FORM TO THIS CRIME.
HOWEVER, THAT SAME TRIAL JUDGE
FOUND THAT MS.^MILLER WAS NOT A
CREDIBLE WITNESS WHEN SHE'S
SAYING THAT SHE TOLD THE
POLICE.
SO YOU HAVE INCONSIST TENTED
FINDINGS RIGHT THERE.
AND IN THAT RESPECT, THAT IS
WHEE THIS STATE IS SUGGESTING
THE CREDIBILITY FINDING IS
MERELY IN THE CONSISTENCY OF
PEOPLE COMING FORWARD AND
SAYING MR.^BLACKMON SAID HE WAS
THE SHOOTER.
THAT IS WHERE --
TALKING BOY THE CROSS-APPEAL
NOW.
CREDIBILITY --
ALSO GOES TO THE GUILT
PHASE.
I WONDERED IF YOU WOULD GET
TO THE ISSUES.
I ONLY HAVE NINE MINUTES.
YOU HAVE APPEALED THAT AND I
WONDER THERE IS A CREDIBILITY
DETERMINATION THERE.
-- DID THE TRIAL COURT AT ALL
[INAUDIBLE] OF THE WITNESSES
BECAUSE THEY WERE COMING OUT
NOW, AFTER BLACKMON HAD DIED?
HE DOESN'T SEEM TO HAVE
TAKEN THAT INTO ACCOUNT.
HE MERELY SAYS, THEY ARE SAYING
THE SAME THING.
THEREFORE, MUST BE CREDIBLE, TO
THE EXTENT THAT IT WOULD
CHALLENGE OR UNDERMINE THE FIND
-- THING A VARIETY, THE FELONY
MURDER AL VARIETY AND -- AGRA
VARIETY.
I THOUGHT HE SAID IT WOULD
CHALLENGE THE TRIAL COURT'S
DISCUSSION THAT THE MAN ACTED
ALONE AND GIVEN CHANGE THE
ACTUAL FACT THE MURDER WAS
COMMITTED DURING THE COURSE OF
AN ATTEMPTED ROBBERY BUT DOES
CHANGE THE FACT AS TO WHETHER
OR NOT MR.^LOWE ACTED ALONE IN
THE SCENARIO.
TRUE.
DOES CHANGE THE FACT WHETHER
OR NOT THE MITIGATING
CIRCUMSTANCES THE TRIAL JUDGE
REJECTED CENTRAL BANK MINOR
PARTICIPATION AND
DISPROPORTIONATE SENTENCE
CONSIDERING THE OTHER TWO WERE
NEVER EVEN PROSECUTED.
IT WOULD CHANGE OR MAY CHANGE
THOSE PERCEPTIONS, WOULDN'T IT.
THAT WAS THE FINDING.
AND THE STATE SAYS THAT AN
INSUFFICIENT ANALYSIS WAS DONE
EITHER UNDER THE PREJUDICE PROM
FROM STRICKLAND OR NEWLY
DISCOVERED EVIDENCE STANDARD
BECAUSE, ONE YOU HAVE TO FIND
THAT THIS NEW TESTIMONY WOULD
BE ADMISSIBLE.
AND, TWO, YOU HAVE TO EVALUATE
IT LOOKING AT THE STATE'S CASE.
AND THE TRIAL JUDGE IN THIS
CASE --
LET'S START WITH THE FIRST
ONE, WHICH YOU SAY WHETHER OR
NOT IT WAS ADMISSIBLE AND WHY
WOULDN'T THE TESTIMONY BE
ADMISSIBLE IN A NEW PENALTY
PHASE.
IN A NEW PENALTY PHASE WHILE
THE MATTERS -- THE STANDARDS
ARE RELAXED, IT STILL WOULD
ONLY COME IN AS IMPEACHMENT
EVIDENCE AND THAT IS IF
MR.^BLACKMON TESTIFIED OR THE
STATE PUT IN MR.^BLACKMON'S
TESTIMONY.
ASSUMING THAT MR.^BLACKMON'S
TESTIMONY IS PUT IN, IT IS
STILL ONLY IMPEACHMENT
EVIDENCE.
AND THAT IS CERTAINLY A LOT
LESS OF A VALUABLE EVIDENCE
THAN DIRECT EVIDENCE.
I'M THINKING OF THE CASE,
THOUGH, AND WE HAD -- THERE
WERE MANY PEOPLE PROSECUTED.
IT WAS THE BANK ROBBERY AND --
IN MIAMI.
AND CERTAIN PEOPLE GOT DEATH,
CERTAIN PEOPLE GOT LIFE
DEPENDING ON THE LEVEL OF THEIR
PARTICIPATION.
BRAGG, I THINK --
YOU KNOW WHAT IT IS.
THE CASE THAT -- FRANKIE.
FRANKIE, RIGHT.
RIGHT.
THANK YOU.
IT SEEMS TO ME -- AND I
DON'T KNOW THAT WE CAN SAY AT
THIS POINT AS A MATTER OF LAW
THAT AT LEASE THE CONFESSION OR
THE STATEMENT THAT BLACKMON
ALLEGEDLY MADE TO CARTER, MIGHT
NOT COME IN AS DIRECT EVIDENCE.
YOU KNOW, AGAIN, WE ARE NOT
SEEING CARTER TO KNOW HOW
CREDIBLE HE IS, WHAT THE
CIRCUMSTANCES WERE.
I JUST AGAIN, WE NOW HAVE --
THE -- IN THE -- STATE IS IN
THE UNENVIABLE POSITION TO BE
THE CROSS-APELLANT AND THE SAME
REASON THE JUDGE'S FINDINGS ARE
ENTITLED TO DEFERENCE FOR THE
GUILT PHASE WHY AREN'T WE IN A
SITUATION WHERE IT PUTS THE
WHOLE PENALTY PHASE IN A
DIFFERENT LIGHT FOR A JURY TO
CAST DOUBT ON WHETHER LOWE WAS
THE ACTUAL SHOOTER AND WHETHER
HE ACTED ALONE.
YOUR HONOR, THE TRIAL
COURT'S FINDINGS ARE ENTITLED
TO DEFERENCE IF THEY ARE
SUPPORTED BY SUBSTANTIAL
COMPETENT EVIDENCE.
AND WHAT WE HAVE IS WE HAVE
LOWE'S CONFESSION, SHORTLY
AFTER THE MURDER, SAYING, IT IS
MR.^SAILOR.
MR.^SAILOR WAS THE SHOOTER.
MR.^SAILOR CAME OUT OF THE
STORE AND TOLD US HE SHOT HER.
THAT IS THE EVIDENCE THAT WE
HAVE.
WHAT POSSIBLE -- AND I DON'T
KNOW, BECAUSE LOWE DIDN'T
TESTIFY, THAT SINCE WE DON'T
KNOW WHERE SAILOR IS AND SAILOR
-- YOU KNOW, THAT MAYBE
BLACKMON AND LOWE AGREED THAT
WELL, THEY'LL, IF THEY GET
CAUGHT WILL SIT ON SAILOR, AND
BLACKMON WENT BACK ON HIS WORD
AND PINNED IT ON LOWE.
I DON'T KNOW, BUT IT'S NOT
EXACTLY LIKE WE'RE TALKING
ABOUT PEOPLE THAT, YOU KNOW,
HAVE A HIGH DEGREE OF
CREDIBILITY AS FAR AS BLACKMON
AND LOWE ARE CONCERNED.
LET'S ADD ALL OF THIS UP.
WE HAVE LOWE, FROM THE GET-GO
SAYING IT IS MR.^SAILOR.
WE DON'T HAVE MORE LOWE SAYING
IT IS BLACKMON --
BLACKMON IS INVOLVED.
FROM THE BEGINNING.
AND THE JURY KNEW THAT AND
REJECTED THAT.
BUT THEY HAD -- NOTHING ELSE
TO BACK UP WHAT LOWE SAID,
FIRST OF ALL, SAID IT THROUGH A
CONFESSION AND THEN YOU HAVE
BLACKMON SAYING ABSOLUTELY NOT
AND DIDN'T HAVE CARTER OR
MILLER THERE WHICH IS WHY THE
JUDGE FOUND SUFFICIENT
PERFORMANCE ON THE PART OF
TRIAL COUNSEL.
RIGHT.
BUT THE PREJUDICE PRONG WAS
ANALYZED INCORRECTLY.
THE TRIAL COURT IGNORED
COMPLETELY ALL OF THE OTHER
TRIAL EVIDENCE AND HE'S NOT TO
DO THAT.
HE HAS TO LOOK AT -- YOU CAN'T
LOOK AT THIS IN A VACUUM AND
SAY MR.^BLACKMON NOW SAID HE'S
THE KILLER --
HOW CAN WE HAVE CONFIDENCE
IN A DEATH SENTENCE WHERE THE
FINDINGS OF THE TRIAL JUDGE ARE
THAT HE -- THAT LOWE'S THE
SHOOTER, ACTED ALONE, THE MAJOR
PARTICIPANT, WE NOW HAVE
EVIDENCE THAT THAT MAY NOT BE
THE CASE.
I DON'T --
YOU DON'T HAVE EVIDENCE,
YOUR HONOR, REALLY --
I'D LIKE TO ASK A QUESTION
ABOUT THE NEWLY DISCOVERED
EVIDENCE ISSUE AND THE
SUBSTANTIAL COMPETENT EVIDENCE
TO SUPPORT A NEW PENALTY PHASE.
YOU TALKED ABOUT, WELL, WE HAVE
TO THEY CAN THE TRIAL COURT'S
FINDINGS ON CROSS APPEAL, IF
THERE IS SUBSTANTIAL COMPETENT
EVIDENCE.
ISN'T THE SUBSTANTIAL COMPETENT
EVIDENCE THE TESTIMONY OF THESE
WITNESSES AND THE TRIAL COURT
DID NOT SAY IT WAS NOT
CREDIBLE, THAT THE SHOOTER WAS
BLACKMON.
DOESN'T THAT PUT THE PENALTY
PHASE -- NOT TALKING ABOUT THE
GUILT, THE PENALTY PHASE IN A
WHOLE DIFFERENT LIGHT, BECAUSE
AS JUSTICE QUINCE WAS SAYING
THE TRIAL COURT FOUND THESING A
VARIETIES AND RE{FUFD} TO FIND
THE -- AGGRAVATORS AND REFUSED
TO FIND THE MITT GATORS AND
COULD MEAN THE DIFFERENCE
BETWEEN A SENTENCE OF LIFE AND
DEATH.
AND WHAT IS BEING LOST IS
THE TRIAL EVIDENCE AND THAT
WOULD GO TO THE JURY.
THE JURY WOULD HAVE HEARD ALL
OF THE TRIAL EVIDENCE AS WELL
AS ANY PENALTY PHASE EVIDENCE
AND WHAT WE HAVE AT THE TRIAL
WELL, HAVE SEASON LUD --
LEUDTKE WHO GETS OUT -- COMES
OUT OF THE STORE AND GETS INTO
PATTY WHITE'S CAR AND DRIVES
OFF.
HE WASN'T AN EYEWITNESS TO
THE CRIME, BUT TO STYMIED
{YAELT} THEREAFTER AND THE FACT
ONE PERSON, THAT HE SAW ONE
PERSON COME OUT OF THE STORE
DOESN'T MEAN HE WAS THE ONLY
PERSON COMING OUT.
WHICH REFUTES COMPLETELY
MR.^LOWE'S CONFESSION.
MR.^LOWE SHOULDN'T HAVE BEEN
OUT OF THE CAR AT ALL.
HE SHOULD HAVE BEEN SITTING IN
THE DRIVER'S SEE AND WHAT
MR.^LEUDTKE SEES IS SOMEONE
FITTEDDING THE DESCRIPTION OF
MR.^LOWE GETTING INTO PATTY
WHITE'S CAR AND DROVE OFF.
AND THAT DETERMINES HIS
GUILT, TALKING ABOUT PENALTY
PHASE.
AND MORE, WE HAVE MR.^LOWE'S
FINGER PRINTS IN THE STORE, THE
ONLY EVIDENCE WE HAVE --
WITHOUT THEM THERE WOULDN'T
HAVE BEEN A GUILT
DETERMINATION.
THAT IS CORRECT BUT ALL GOES
TO THE FACT THAT HE IS THE ONLY
ONE WHO HAS ANY CONNECTION WITH
THIS.
THE ONLY ONE WHO WAS IN THE
STORE -- AND ON --
BUT THAT IS THE POINT OF THE
TESTIMONY OF THESE NEW
WITNESSES, WAS HE WAS NOT THE
ONLY ONE IN THE STORE.
AND NONOF THOSE NEW
WITNESSES REFUTE IN THE LEAST
PATTY WHITE'S TESTIMONY, THE
TESTIMONY OF THE OFFICERS, WHO
SAY THAT MR.^LOWE COULD NOT
HAVE GOTTEN FROM HIS PLACE OF
EMPLOYMENT TO MR.^BLACKMON'S
HOME TO THE NU-PACK CONVENIENCE
STORE, BACK TO MR.^BLACKMON'S
HOME AND THEN TO MR.^LOWE'S
HOME AND BACK TO GATOR LUMBER.
AND THE TIME IS 5 A MINUTES AND
ON TOP OF THAT, PATTY WHITE
PLACES MR.^BLACKMON IN HIS HOME
SHORTLY AFTER THE MURDER.
IF HE ACCEPT --
AND VICKIE BLACKMON ALSO
DOING THAT.
ACCEPT THIS JUDGE --
GRANTING A NEW PENALTY PHASE I
NOW HAVE A CONCERN THAT YOU
BROUGHT UP.
I JURY WOULD BE STUCK WITH AND
THE STATE WOULD ARGUE
EVERYTHING IN THE GUILT PHASE
UNIMPEACHED BY THE NEW EVIDENCE
AND THEY'D HEAR, NO, YES, IT
WAS PRE-MEDITATION AND YES, A
JURY FOUND HE ACTED ALONE BUT
ISN'T THAT A REASON TO GRANT A
NEW GUILT PHASE AS WELL.
NO, IT IS NOT, YOUR HONOR.
BECAUSE IT'S STILL A FELONY
MURDER BASED ON MR.^LOWE'S
CONFESSION ALON YOU HAVE FELONY
MURDER.
AND YOU ARE MISSING WHAT I'M
SAYING.
THE STATE, IF WE ALLOW THE
GUILT PHASE TO REMAIN THE STATE
WOULD ARGUE IT WAS A
PREMEDITATED MURDER, NOTHING
SHOWED AT THE GUILT PHASE
ANYBODY OTHER THAN MR.^LOWE
ACTED IN THE CASE.
THAT IS WHAT THE STATE'S
CASE WAS, MR.^LOWE AND MR.^LOWE
ALONE AND NOTHING THAT CAME OUT
IN THE EVIDENTIARY HEARING
REFUTED ANY OF THE TESTIMONY
THAT PUTS MR.^BLACKMON AT HOME
IN BED OR CHANGES MR.^LOWE'S
INITIAL CONFESSION THAT IT WAS
MR.^SAILOR.
IT IS AWFULLY CONVENIENT TO
PLACE THE BLAME ON
MR.^BLACKMON, YEARS LATER.
THE UNDERLYING QUESTION IS
DOESN'T IT TRULY UNDER MINE THE
NEW PENALTY PHASE TO PERMIT THE
OLD GUILT PHASE TO STAND WHEN
YOU ARE USING THE IDENTICAL
INFORMATION TO PRESENT A NEW
PENALTY PHASE, THE UNDERLYING
QUESTION AND SHE'S GETTING TO
AND I THINK YOU NEED TO ANSWER
THAT.
-- I DON'T BELIEVE IT CHANGES
THE EVIDENCE IN ANY RESPECT.
AND I UNDERSTAND YOUR --
LET ME TELL YOU HOWEY
CHANGES IT.
THE JUDGE FOUND THE DEFENSE
LAWYER TO BE INEE EFFECTIVE.
THAT -- INEFFECTIVE AND THE
REASONABLY COMPETENT DEFENSE
LAWYER WOULD HAVE DEFENDED BEN
CARTER IN AN ORIGINAL TRIAL AND
NOW INSTEAD THE STATE GETS THE
BENEFIT OF GOING.
YOU DON'T -- NO, THE JURY
ALREADY FOUND THIS.
DO YOU NOT SEE --
REJECTED MR.^LOWE'S
CONFESSION.
-- I'M OVER MY TIME.
WHETHER OR NOT GET THE NEW
PENALTY PHASE OR NEW GUILT
PHASE THE TRIAL COURT IS
SUPPOSED TO MAKE AN ANALYSIS AS
TO HOW IT WILL IMPACT AND
NOTHING PRESENTED CHANGES IN
THE LEAST THE FACT THAT
MR.^LOWE INITIALLY COMPLAINED
THAT IT WAS MR.^SAILOR, THAT
MR.^LOWE ADMITTED THAT HE WAS
AT THE CONVENIENCE STORE OR
THAT THE MR.^BLACKMON ALONG
WITH HIS THEN WIFE AND LATER,
EX-WIFE, AND MR.^LOWE'S
GIRLFRIEND, PLACED MR.^BLACKMON
AT HOME AND MR.^LEUDTKE PLACES
ONE PERSON AND ONE PERSON ALONE
AT THE CONVENIENCE STORE
DRIVING PATTY WHITE'S CAR.
SO IN THE TOTAL, YOU -- THE
TRIAL COURT SHOULDN'T HAVE JUST
IGNORED COMPLETELY THE STATE'S
CASE BUT HAD TO ANALYZE THE
STATE'S CASE AGAINST THIS NEW
EVIDENCE OF AN ALLEGED
CONFESSION WHICH MR.^BLACKMON
DENIED EVER MAKING.
HE DENIED THAT HE EVER TOLD
ANYONE THAT HE WAS THE SHOOTER.
AND WITH THAT, YOU HAVE
EXHAUSTED MORE THAN YOUR TIME.
THANK YOU, YOUR HONOR AND I
ASK YOU TO REVERSE THE FINDING
OF A NEW PENALTY PHASE AN
AFFIRM THE DIE NILE OF THE NEW
GUILT PHASE.
THANK YOU, MS.^DAY.
YES, YOUR HONOR, THERE WAS
ONE EYEWITNESS TO THIS
PARTICULAR SHOOTING AND THAT
WAS THE THREE-YEAR-OLD ADOPTED
SON OF THE VICTIM, WHO SAID ON
SEVERAL OCCASIONS THAT TWO
PEOPLE SHOT MOMMY AND THAT
EVIDENCE WAS EXCLUDED --
WHAT DO WE DO, THOUGH?
THIS COURT PREVIOUSLY
THOROUGHLY ANALYZED THAT.
DID IT NOT, ON A PRIOR
OCCASION.
ANALYZED WHETHER OR NOT HE
WAS A COMPETENT WITNESS.
WHAT WAS EXPLAINED TO US IS
TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO INTRODUCE THE
HEARSAY STATEMENT AS AND
EXCITED UTTERANCE THROUGH
EITHER DEBORAH BOOKS ONE OF THE
PEOPLE WHO WHOM DONNIE BUTTS
SHOUTED, SO IS A SLIGHTLY
DIFFERENT ARGUMENT.
IF THE EYEWITNESS OUTSIDE
THE STORE THAT IDENTIFIED ONE
PERSON COMING OUT, GETTING INTO
WHITE'S CAR, DID THAT WITNESS
ALSO SAY THAT NO OTHER PERSONS
WERE IN THAT AUTOMOBILE AT THE
TIME OR THAT IS LEFT OPEN.
HE SAID HE DIDN'T SEE
{AEBLS}, DIDN'T SAY
CATEGORICALLY NO OTHER PEOPLE
WERE IN IT.
THAT WITNESS WASN'T ASKED,
WERE THERE ANY OTHER PERSONS IN
THE AUTOMOBILE.
HE WAS ASKED THAT AND SERVED
I DIDN'T SEE ANY.
LET ME ASK A PROCEDURAL
QUESTION.
WHY HAS IT TAKEN TEN-AND-A-HALF
YEARS FOR US TO GET FROM
POSTCONVICTION TO THIS POINT?
TWO-AND-A-HALF YEARS FROM
THE DATE THIS TRIAL COURT'S
ORDER TO THIS ORAL ARGUMENT?
THERE WAS PROBLEM GETTING
THE RECORDS TOGETHER.
I UNDERSTAND THAT THE STATE
[INAUDIBLE] SUPPLEMENTAL
RECORDS ERIC PROBLEM WITH A
PAGE NUMBERING OF THE RECORDS.
THAT KIND OF CLERK'S OFFICE
KIND OF SITUATION, THE COURT IS
ALL TOO FAMILIAR WITH.
IN ADDITION TO THE -- THE
STATEMENT REFERENCE TO THE TIME
TRIAL.
AGAIN, IN THE BRIEF, I REFERRED
TO THE FLAWS, IN THE
EVIDENTIARY HEARING IN THE TIME
TRIAL IN THAT THE PROCEDURES
THAT WERE SUPPOSED TO BE
FOLLOWED REALLY WESTERN
FOLLOWED.
TO SOME EXTENT THAT HAS BEEN
DISCREDITED AS WELL BY THE
EVIDENTIARY HEARING TESTIMONY.
THE LOWER COURT DID FIND
DEFICIENT PERFORMANCE, AS
REGARDS BEN CARTER AND LISA
MILLER AND I THINK IS SOMETHING
THIS COURT NEEDS TO TAKE VERY
CLEAR ADVANTAGE OF.
WHAT WAS THAT -- DEFICIENT
PERFORMANCE BASED ON.
FAILURE TO INVESTIGATE THE
LISTED WITNESS, BEN CARTER AND
BY INFERENCE, IF HE HAD SPOKEN
WITH BEN -- WITH BEN CARTER
WOULD HAVE BEEN ABLE TO CONTACT
LISA MILLER AS WELL.
YOU KNOW, THE RECORD SAYS
THAT THE STATE LISTED BEN
CARTER AS A PERSON WHO HAD SOME
INFORMATION ABOUT THE CASE.
SURE.
THERE IS INDICATION THAT A
DEPOSITION WAS SET FOR BEN
CARTER AND THE RECORD SEEMS TO
BE SILENT AS TO WHETHER OR NOT
THAT DEPOSITION ACTUALLY TOOK
PLACE.
RIGHT.
BUT THEN ISN'T THERE ALSO AN
INDICATION THAT BEEN CARTER WAS
LISTED ALSO AS A DEFENSE
WITNESS?
I DON'T BELIEVE SO, YOUR
HONOR.
AND SO I'M HAVING REAL
TROUBLE WITH WHAT BEN CARTER
WOULD HAVE OR DID SAY TET OF
THE MURDER.
BECAUSE HE CLEARLY WAS THE ONE
WHO CAME TO THE POLICE AND
POINTED THIS FINGER AT MR.^LOWE
AND SO WHAT IS IT THAT TRIAL
COUNSEL SHOULD HAVE DONE AND
WOULD HAVE FOUND OUT TAP FROM
BEEN CARTER.
TRIAL COUNSEL IS NOT THE --
I MEAN, THE TRIAL COUNSEL
CHANGED, THE STATE --
YES.
SO BEN CARTER, THERE IS NO
EVIDENCE HE WAS DISPOSED, THE
DEPOSITION WAS SET BY THE FIRST
COUNSEL AND NOT CLEAR WHETHER
IT WAS FOLLOWED UP.
BEN CARTER WAS -- AS TRIAL
COUNSEL IN HIS EVIDENTIARY
HEARING SAID IF HE HAD KNOWN OF
A WITNESS WHO SAID THAT DWAYNE
BLACKMON WAS THE SHOOTER HE
WOULD HAVE PUT THE WITNESS ON
AND HADN'T DISCOVERED THAT BEN
CARTER SAID THAT.
AND WHAT EVIDENCE IS THERE
AT THE TIME OF THE -- THE
BEGINNING OF THIS SITUATION,
WHEN -- AFTER BEN CARTER WENT
TO THE POLICE AND POINTED THE
FINGER AT MR.^LOWE, THAT BEN
CARTER WOULD HAVE SAID AT THAT
TIME, THAT MR.^BLACKMON WAS THE
SHOOTER?
BEN CARTER -- I DON'T RECALL
EXACTLY HIS EVIDENTIARY HEARING
TESTIMONY BUT CERTAINLY LISA
MILLER.
BEN CARTER DIDN'T -- DIDN'T
HE SAY, IN HIS EVIDENTIARY
HEARING TESTIMONY THAT AT THAT
POINT HE WOULD NOT HAVE
BASICALLY SAID THAT HE WOULD
NOT HAVE SAID THAT --
HE WAS UNWILLING TO TESTIFY
AT ALL, HE DIDN'T WANT TO GO
AGAINST HIS COUSIN BUT THE
POINT OF THE MATTER.
HAD TRIAL COUNSEL
INVESTIGATED BEN CARTER, BEN
CARTER WOULD HAVE LED HIM TO
LISA MILLER AND SHE WAS THE ONE
WHO WAS MAKING REPEATED
ATTEMPTS --
HOW WOULD CARTER HAVE LED
OTHER THAN THAT MILLER WAS THE
GIRLFRIEND, HOW WOULD CARTER
HAVE INEVITABLY LED TO LISA
MILLER BACK IN THE TIME OF
TRIAL.
BECAUSE TRIAL COUNSEL HAS A
DUTY TO -- PEOPLE ARE --
I MEAN, SHE -- IS THERE ANY
EVIDENCE SHE WAS A WITNESS OR
ANY EVIDENCE ABOUT THE
CONVERSATION BEFORE.
SHE WAS A WITNESS TO THAT
CONVERSATION.
DIE.
ME, TRIAL COUNSEL WOULD HAVE
KNOWN ABOUT SIMPLY BY TALKING
TO MR.^CARTER WHO WAS UNWILLING
TO IDENTIFY BLACKMON.
I DON'T THINK THERE IS ANY
EVIDENCE THAT BEN CARTER WAS
UNWILLING TO IDENTIFY LISA
MILLER.
CERTAINLY, MR.^LOWE'S POSITION
HAD TRIAL COUNSEL ADEQUATELY
INVESTIGATED BEN CARTER HE
WOULD HAVE BEEN LED TO LISA
MILLER AND SHE WOULD HAVE BEEN
ABLE TO TESTIFY --
ONE LAST QUESTION.
SURE.
THE -- THERE SEEMS TO BE A
BLANK IN TERMS OF UNDER YOUR
CLIENT'S CONFESSION, IT WAS A
THIRD PERSON, NOT BLACKMON, NOT
LOWE, NOT YOUR CLIENT, ANOTHER
PARTY THAT ACTUALLY DID THE
SHOOTING AND THE RECORD DOESN'T
SEEM TO TELL US WHAT HAPPENED
TO THAT THIRD PARTY, THAT IS,
THAT WHO THAT THIRD PARTY WAS,
AND WHAT THAT THIRD PARTY HAD
TO SAY.
AND CAN YOU ENLIGHTEN US ANY
ABOUT THAT.
ABSOLUTELY NOTHING IN THE
RECORD.
WITH OUR HELP YOU HAVE
EXHAUSTED YOUR TIME, WE'LL TAKE
THE CASE UNDER ADVISEMENT.
THANK YOU VERY MUCH.
THANK YOU.