In re: Amendments to the Florida Small Claims Rules

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.

William Michael Kopsho v. State of Florida

SC05-763

>> WHENEVER YOU ARE READY
MR. BURDEN.
>> JUSTICE LEWIS,
MY NAME IS GEORGE BURDEN.
I REPRESENT WILLIAM KOPSHO.
I WOULD LIKE TO SAY I COME
FROM GREAT SADNESS.
WE LOST OUR MAYOR LAST NIGHT
TO ILLNESS LONG-TERM
ILLNESS.
MAYOR EVONNE SCARLET GOLDEN.
I WANTED TO PASS THAT ALONG
TO THE COURT.
MR. KOPSHO WAS FOUND GUILTY OF
FIRST-DEGREE MURDER AND
ARMED KIDNAPPING OF HIS WIFE
LYNNE KOPSHO IN THE FACTS
WERE THAT MR. KOPSHO HAD A
DISCUSSION WITH HER ON A
TUESDAY NIGHT WHERE SHE
ADMITTED THE EXTRAMARITAL
AFFAIR.
AT THAT INSTANT HE DECIDED
HE WOULD KILL HER FOR THAT.
>> YOU HAVE THE FACTS DOWN
THEY ARE CONSOLIDATED.
YOU MAY WANT TO SPEND YOUR
TIME DIRECTLY ON THE LEGAL
ISSUE AS ADDED BY THE FACT
THAT YOU THINK MAY BE
NECESSARY TO MAKE SURE WE
UNDERSTAND.
>> I WOULD LIKE TO DISCUSS
JURY SELECTION.
DURING JURY SELECTION THE
ATTORNEY FOR THE APPELLANT -- I
THINK THIS IS VERY
IMPORTANT.
ASKED THE QUESTION, DOES
ANYBODY HAVE THE PROBLEM
WITH THE FACT THAT SOMEONE
MAY NOT HAVE TO TESTIFY?
ONE OF THOSE GROUP QUESTIONS
THAT YOU KNOW, JURORS
REFLECTIVE JURORS SIT THERE
AND JUST DON'T SAY ANYTHING.
NOT JUROR MUNOCK, HE SAID I
HAVE A PROBLEM WITH-- I THINK
A PERSON SHOULD HAVE
TO STAND UP BEFORE GOD AND
ANSWER FOR WHAT HE DID AND
SAY BEFORE A TRIAL WHAT HE
DID WHEN HE IS ACCUSED.
AND HE WAS ASKED, WELL, IS
THAT SOMETHING THAT YOU FEEL
STRONGLY ABOUT --
>> DO YOU AGREE THIS
PARTICULAR JUROR WAS A MIXED
BAG?
>> YES, HE'S VERY RELIGIOUS.
HAD A STRANGE HISTORY OUT OF
STATE.
TWO UNCLE OF HIS HAD
COMMITTED MURDER AND WERE
SERVING TIME FOR IT.
A COUSIN HAD COMMITTED
MURDER IN A DOMESTIC VIOLENT
SETTING.
>> YES.
AND HE HAD SAT ON A JURY IN
WHICH HE HAD CONVICTED BUT
DECIDED THAT IT WAS A -- BUT
IT TURNED OUT THAT THE DNA
PROVES THAT THE PERSON THEY
HAD CONVICTED WAS INNOCENT
AND HE HAD SORT OF A LOT OF
ISSUES.
>> YES, HE DID JUSTICE
WELLS.
>> WERE THOSE ISSUES --
WERE THEY DISCUSSED WITH THE
TRIAL JUDGE?
>> NOT ALL OF THEM.
THE ISSUE OF HIS FEELING
ABOUT MR. KOPSHO HAVING TO
TESTIFY SPECIFICALLY WAS
RAISED AS GROUNDS FOR HIM
NOT BEING ABLE TO BE
PARTIAL.
AND THE JUDGES ANSWER TO
THAT WAS HE ASKED THE
PROSECUTOR "AREN'T YOU GOING
TO PLAY THE CONFESSION?"
>> HE SAID, "WE ARE."
MR. MULINOX WILL HEAR
MR. KOPSHO'S STORY.
HE WON'T TESTIFY BUT HE WILL
HEAR WHEN HE HEARS THE
CONFESSION SO HE'S SATISFIED
THAT HE WILL THEREFORE BE
PARTIAL EVEN THOUGH IT'S
CLEAR ON THE RECORD THAT HE
NEVER EQUIVOCALLY SAID HE
CAN PUT THAT ASIDE EVER.
THE SEQUENCE OF THEN WHAT
OCCURRED HERE -- AS I
UNDERSTAND IT IS THAT THERE
WAS FOLLOWING THAT PART OF
THE QUESTIONING THE JUROR
THE DEFENSE COUNSEL DID ASK
THAT HE BE STRICKEN FOR
CAUSE ON THE BASIS OF THAT
STATEMENT ABOUT THE -- NOT
ACCEPTING THE RIGHT TO
REMAIN SILENT.
>> THAT'S CORRECT,JUSTICE
WELLS.
>> THE TRIAL JUDGE MADE A
STATEMENT THAT HE DID SAY HE
COULD BE IMPARTIAL.
HE DENIED IT AT THAT TIME.
AT THAT POINT DID THE
DEFENSE COUNSEL STILL HAVE
PREEMTRIES.
>> YES?
>> AND WHAT -- MY
RECOLLECTION IS WHAT
OCCURRED WAS THAT THERE WERE
SEVERAL OTHER JURORS THAT
WERE THEN EXCUSED AND
MULLINOX WAS LEFT ON THE
JURY AND THEN THEY WENT ON
THROUGH AND IT GOT DOWN
TOWARD THE END AND HE
WAS -- THERE WAS A BACK
STRIKE ON MULLINOX.
>> THAT'S CORRECT.
NOW AT THAT POINT WAS IT AT
THAT POINT THERE WAS REQUEST
ADDITIONAL PREEMPTORY.
>> YES, THERE WAS.
AND THE JUROR THAT WAS
IDENTIFIED WAS BEAVER?
>> BELET.
>> MR. BELET.
>> AND WAS THERE -- WHAT DID
THE RECORD REFLECT IN
RESPECT TO MR. BELET.
HE WAS ONE OF THOSE JURORS
THAT WE CALL AN AUTOMATIC
VOTE FOR DEATH IF CERTAIN
CIRCUMSTANCES WERE FOLLOWED.
AND MR. BELET SAID IF I
BELIEVE THERE'S
PREMEDITATION IN THE CASE I
WILL VOTE FOR DEATH.
HE WAS A PRO-DEATH JUROR.
BUT HE SAID HE ANSWERED
CORRECTLY IN THE MAGIC
QUESTIONS.
COULD HE FOLLOW THE JURY
INSTRUCTION DESPITE THE
WAY -- DESPITE THE FACT YOU
FEEL THAT WAY.
YES, I CAN.
I WILL DO WHAT THE JUDGE
TELLS ME TO DO.
>> MR. MILLER ASKED -- WHO IS HIS
DEFENSE COUNSEL -- HE SAID ,OKAY,
IN YOUR MIND IF
IT'S PREMEDITATED IT
WARRANTS THE DEATH PENALTY.
ON HIS OWN NOT RESPONSE TO
QUESTION.
UNLESS THERE WERE MITIGATING
CIRCUMSTANCES THAT BROUGHT
THIS ON.
AND THEN MR. MILLER ASKED,
OKAY SUCH AS?
>> MR. BELET RESPONDED, IT MAY
NOT BE A DEATH PENALTY.
IT MAY BE WORTH A LIFE IN
PRISON.
AND THEN THEY GO ON AND TALK
ABOUT WHAT KIND OF
MITIGATING CIRCUMSTANCES.
HE JUST RESPONDS I WOULD
THINK THERE MAY BE PROBLEMS
BETWEEN TWO PEOPLE SERIOUS
PROBLEMS AND HE GOES ON AND
EXPLAINS SOMETHING HE
THOUGHT ABOUT MITIGATING
CIRCUMSTANCES.
SO WAS HE AN
OBJECTIONABLE JUROR
IN ANY WAY?
>> IN THE WAY YOU
CHARACTERIZE IT, HE DID A LOT
TO REHABILITATE HIMSELF.
WHAT I WAS MAKING
COMMENTS I WAS MAKING
REFERENCE TO THE INITIAL
QUESTIONING AND THEN -- THIS
IS WHAT HE ANSWERED.
>> THE INITIAL QUESTION WAS
DO YOU BELIEVE THAT THE
MURDER -- HE BASICALLY SAYS
IF IT'S PREMEDITATED MURDER,
THE DEATH PENALTY IS
APPROPRIATE.
>> CORRECT.
>> THAT'S A VERY COMMON PERCEPTION
AMONG A LOT OF PEOPLE.
>> IS IT NOT?
>> YES, SO THEY GET INTO THE
MITIGATING.
HE MADE IT VERY, VERY CLEAR
THAT WAS NOT AN ABSOLUTE
STATEMENT THAT IN FACT HE
WOULD WANT TO CONSIDER
MITIGATION; DIDN'T HE?
>> YES. YES, HE DID.
THAT'S CORRECT.
THE -- BUT IN THIS COURT'S
RULINGS, WHETHER OR NOT HE
WAS AN OBJECTIONABLE JUROR
DOESN'T MATTER IF YOU
PROPERLY PRESERVE THE ISSUE
AND I WILL EXPLAIN.
HE DID ASK FOR THE
ADDITIONAL PREEMPTORY AND
WAS DENIED IMPROPERLY.
WE ARGUE AND THEN IDENTIFIED
SOMEONE IF HE HAD THE
PREEMPTORY IF HE HAD
REMOVED UNDER THIS COURT
JURIPRUDENCE HE IS ENTITLED
TO A NEW TRIAL BECAUSE OF
THIS ERROR.
IF YOU BELIEVE THE JUROR
SHOULD HAVE BEEN REMOVED FOR
CAUSE AND I THINK THE RECORD
ESTABLISHES THAT, AND IF YOU
BELIEVE THAT IT WAS PROPERLY
PRESERVED PURSUANT TO
TROTTER WHICH I BELIEVE THE
RECORD SHOWS --
>> I BELIEVE THAT'S WHERE
BUSBY -- BUT I'M NOT SURE THAT
WE HAVE BEEN UP UNTIL NOW
CONFRONTED WITH -- WHAT
APPEARS TO ME TO BE A
SITUATION HERE IN WHICH A
TRIAL JUDGE CANNOT -- THE
TRIAL JUDGE ALMOST HAS TO
GRANT THE CAUSE IF IT'S
ANYWHERE -- BECAUSE IF YOU
TURN AROUND AND THEN SAY X
JUROR, I WOULD PREEMPTORLY
THEN YOU GET ANOTHER
PREEMPTRY AND YOU CAN
REMOVE.
THE TRIAL JUDGE IN ESSENCE --
WHAT THIS COMES DOWN TO IS
THAT THE TRIAL JUDGE HAS TO
GRANT THE CALL.
ISN'T THAT RIGHT?
>> WELL, THAT'S WHAT THE
DEFENCE ARGUES.
THAT'S IN BUSBY.
REALLY THE MAJORITY FEELS
AND WE AGREE THAT PREEMPTRY
AND CAUSE CHALLENGES ARE
DIFFERENT.
PREEMTRIES ARE TO ENSURE
IMPARTIALITY APART FROM
CHALLENGES.
THAT'S WHAT THEY ARE.
AND THAT SYSTEM WAS -- THAT
TOOL WAS DEPRIVED OF
MR. KOPSHO.
>> SO YOU BELIEVE THAT
THERE'S NO BASIS FOR THE
PREEMTRY HAVING A ROLE IN
POSSIBLY CORRECTING OR
PREVENTING JUDGES FROM
MAKING MISTAKES WHEN THERE'S
A CLOSE CASE AS THE U.S.
SUPREME COURT RECOGNIZES.
COULD YOU RESTATE THAT,
JUSTICE?
>> PLEASE.
>> IF IT'S A REAL CLOSE CASE
AND IT'S NOT REAL SURE AND
THE JUDGE MAY NOT KNOW OR
MAYBE EVEN ERROR.
THE U.S. SUPREME COURT SAID
PART OF THE PURPOSE OF THE
PREEMPTRY CHALLENGE IS TO
MAKE SURE THAT ANY SUCH
ERRORS ARE CORRECTED AT THE
TRIAL LEVEL SO YOU DON'T DO
WHAT YOU ARE ASKING FOR HERE
IS HAVING NEW TRIAL WHEN
THERE WAS NO OBJECTIONABLE
JUROR IN EFFECT.
DO YOU AGREE WITH THAT?
>> THAT'S THE U.S. SUPREME
COURT POSITION, YES, SIR.
>> AND YOU DID -- DISAGREE
WITH THAT.
>> YES.
BECAUSE THE JURISPRUDENCE OF
THIS STATE RECOGNIZES THAT
PARAMOUNT IS AN IMPARTIAL
JURY.
THAT IS A FUNDAMENTAL RIGHT
AND THEY HAVE CHARACTERIZED
PREEMPTRIES AS A FUNDAMENTAL
TO MAKE SURE THAT
HAPPENS.
AND THE ONLY WAY --
>> PREEMTRIES DO MUCH MORE
THAN THAT, DON'T THEY?
THEY ARE DESIGNED SO THAT
YOU CAN EXCLUDE SOMEBODY
FROM THE PANEL WHO YOU THINK
IS NOT GOING TO FAVOR YOUR
CLIENT.
REGARDLESS OF -- IT'S
DESIGNED TO IMPOSE
IMPARTIALITY IN YOUR FAVOR
BECAUSE YOU WANT SOMEONE WHO
IS PARTIAL TO YOUR CAUSE.
IF YOU DON'T THINK SOMEBODY
IS IN YOUR CAUSE YOU COULD
BOOT THEM OUT IN
PREEMPTRIES.
>> I WOULDN'T USE THOSE
WORDS, JUSTICE CANTERO.
I THINK THE OFFICERS OF THE
COURT ARE TRYING TO GET AN
IMPARTIAL JURY.
>> THAT'S WHAT THE FLORIDA
CAUSE CHALLENGES ARE FOR IS
TO GET AN IMPARTIAL JURY.
>> YES.
BUT DESPITE THE
CHARACTERIZATION OF JUROR
BELET OF THIS COURT I WOULD
BELIEVE THAT WHEN YOU ARE
SITTING THERE AND CONFRONTED
WITH IT AND MANY OF THE CASE
LAW DISCUSSES THIS.
IT'S NOT ON THE RECORD.
WE'RE LOOKING AT A STERILE
RECORD, BUT THERE ARE FACIAL
MOVEMENT.
THERE'S THINGS THAT HAPPEN.
WE'RE NOT THERE.
BUT THE ATTORNEYS ARE THERE.
AND THEY ARE FIGHTING FOR
THEIR CLIENT AND BECAUSE OF
THIS LOOK OR BECAUSE OF THIS
SMIRK AND I'VE PICKED JURIES
AND SEEN PEOPLE THAT I KNOW
THIS PERSON IS NOT GOING TO
BE FAIR NO MATTER WHAT THEY
SAY.
AND THEY ARE NOT GOING TO BE
ON THIS JURY.
YOU CAN'T MAKE IT A RECORD
OF IT BUT YOU HAVE YOUR
PREEMPTRIES TO MAKE SURE YOU
STILL HAVE THAT FAIR AND
IMPARTIAL JURY.
ON THAT POINT, ISN'T IT
IMPORTANT, THEN, ON THIS
QUESTION OF WHETHER A POOR
CAUSE CHALLENGE SHOULD HAVE
BEEN GRANTED TO DEFER TO THE
TRIAL JUDGE WHO WAS THERE
AND SAW THE MANNERISMS AND
SAW THE DYNAMICS OF THE
COURTROOM WHICH ARE
IMPORTANT AS YOU SAID.
THAT WE DEFER TO THE TRIAL
JUDGE IN THESE CASES.
>> WELL, I THINK THAT THE
MAJORITY DOES NOT SUPPORT
THAT VIEW.
AND IT'S NOT IN THIS RECORD,
BUT I BELIEVE THIS JUDGE WAS
FACED WITH A LACK OF JURORS.
HE WAS OUT OF HIS AREA.
HE WAS A CITRUS COUNTY.
HE WAS NOT IN MARION COUNTY
AND I BELIEVE THERE WAS A
LACK OF JURORS AND I BELIEVE
THAT'S WHY HE ACTED IN THE
WAY HE DID.
BUT IT'S NOT IN THE RECORD.
I CAN'T --
[AUDIO DIFFICULTIES]
>> CORRECT.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> WELL, THE DECISION OF THE
JUDGE ISN'T ABUSE OF
DISCRETION STANDARD AND HE
ABUSED THE DISCRETION
BECAUSE ON THE FACE OF THE
RECORD JUROR MULLINOX
COULDN'T SAY HE COULD SET
ASIDE HIS STRONG BELIEFS
AND --
>> BUT HE WAS NEVER REALLY
ASKED THAT.
>> HE VOLUNTEERED IT.
>> WHAT HE VOLUNTEERED WAS
THAT HE BELIEVED AS I
UNDERSTAND WHAT HE SAID HE
SAYS THAT I BELIEVE THAT A
DEFENDANT OUGHT TO GET ON
THE STAND OR A DEFENDANT
OUGHT TO -- EXPLAIN TO GOD
WHAT ALL HAPPENED.
CORRECT?
>> YES, YES, JUSTICE.
I DON'T RECALL THAT HE WAS
EVER ASKED OR THAT IT WAS
EVER -- THAT HE HAD
VOLUNTEER THAT IF A
DEFENDANT DID NOT DO THAT,
THAT THEN IT WOULD EFFECT
HOW HE WOULD DELIBERATE ON
THE CASE.
>> YOU'RE ABSOLUTELY RIGHT
AS JUSTICE PARIENTE NOTED
THERE WAS NO ATTEMPT BY
EITHER SIDE TO REHABILITATE
THIS PERSON AND ASK THOSE
SORT OF QUESTIONS.
AND THEN YOU HAVE A RECORD
TO KNOW WHETHER THAT WAS THE
CASE.
IT DIDN'T HAPPEN HERE.
AND I SUSPECT IT DIDN'T
HAPPEN HERE BECAUSE THEY
KNEW WHAT THE ANSWER WOULD
BE.
THE MORE YOU DIG WITH THIS
JURORS THE MORE HE WILL DIG
HIMSELF OUT OF THE JURY
POOL.
>> JUSTICE BELL HAS A
QUESTION.
JUSTICE BELL HAS A QUESTION.
>> I DIDN'T WANT TO GET TOO
FAR OFF THIS INDIVIDUAL
JUROR.
I WANTED TO PLACE THIS IN
CONTEXT.
IN THE 50 JUROR OF THE
ORIGINAL PANEL,HOW MANY WERE
CHALLENGED FOR CAUSE AND HOW MUCH -- MANY
OF THOSE WERE GRANTED OR
DENIED?
>> I DON'T KNOW THE ANSWER
TO THAT JUSTICE.
>> 19 CHALLENGE PER CAUSE
AND DISMISS FOR CAUSE?
>> THE JUDGE DID A VERY GOOD
JOB IN ADDRESSING CAUSE
CHALLENGES AND HANDED TO ME
UP TO THAT POINT.
BUT JUROR MULLINOX AND I
BELIEVE IT WAS BECAUSE THEY
WERE LOSING THE NUMBER OF
JURORS THAT THEY NEEDED.
>> WAS THERE ANY OTHER
CHALLENGE PER CAUSE THAT WAS
NOT GRANTED THAT YOU ARE
CONTESTING HERE?
>> NO.
>> SO THE JUDGE MADE IN YOUR
VIEW ONE MISTAKE ON ONE
JUROR?
>> THAT'S CORRECT.
>> AND DEFENSE USED ONE
PREEMPTRY TO CORRECT THAT
OR -- ERROR.
>> THAT'S CORRECT.
>> AND BECAUSE OF THAT WE
HAVE TO HAVE A NEW TRIAL.
>> YOU HAVE TO HAVE IT
BECAUSE HE DID NOT GRANT AN
ADDITIONAL PREEMPTORY CHALLENGE
THAT HE LOST TO CORRECT THE
ERROR.
>> JUSTICE PARIENTE HAD A
QUESTION.
>> YES.
[AUDIO DIFFICULTIES]
YES.
[AUDIO DIFFICULTIES]
>> THAT'S CORRECT.
[AUDIO DIFFICULTIES]
WAS THIS THE JUROR THAT SAID
SOMETHING TO THE EFFECT THAT
SOMEONE IN HIS FAMILY HAD
SHOT OR MURDERED A FEMALE
AND THAT UNDER SIMILAR
CIRCUMSTANCES THAT'S OKAY.
>> YES, SIR.
LET ME MOVE YOU TO CCP.
OKAY. NOW THE TRIAL JUDGE
WROTE AN EXTENSIVE ORDER,
BUT I WOULD LIKE FOR YOU TO
PINPOINT IS THE PART OF CCP
THAT YOU SEE IS THE PROBLEM
HERE.
WE'VE GOT THE PLAN.
AND CARRYING OUT THE GETTING
OF THE GUN WAS VERY
ELABORATE.
TO GET THE GUN HE WENT AND
GOT THE $3,000 OUT OF THE
BANK AND HE REMAINED CALM
ENOUGH TO GET HIS WIFE INTO
THE TRUCK AND THEY WERE
PROCEEDING AS IF THEY WERE
GOING TO THE BANK.
AND THEN WHEN HE -- IT WAS
AFTER THE HE PULLED THE GUN
THAT SHE TRIED TO JUMP OUT
OF THE TRUCK.
>> WELL DISPLAYED THE GUN.
>> BUT HE SAW IT --
>> WHATEVER WAY.
>> I THINK IT'S IMPORTANT TO
THE KIDNAPPING CHARGE, THAT
DISTINCTION.
>> BUT HOW IS -- THEN AFTER
SHE -- AFTER THE TRUCK GOT
STOPPED SHE JUMPED OUT AND
HE SHOT HER AT LEAST THREE
TIMES, PROBABLY FOUR AND
THERE WERE EIGHT DIFFERENT
BULLET WOUNDS.
HOW IN THE WORLD IS THAT NOT
CCP?
I BELIEVE THAT -- FIRST OF
ALL THERE WAS THIS
FORMULATION TO KILL HER WAS
IMMEDIATE OUT OF PASSION FOR
THE INFIDELITY IN THE
MARRIAGE.
THAT'S -- THAT'S WHERE IT
FORMED.
>> HOW LONG AFTER IT FORMED
DID THE MURDER OCCUR?
>> IT WAS TUESDAY NIGHT.
HE COMMITTED THE MURDER
FRIDAY MORNING.
>> SO THERE'S THREE DAYS.
>> 2 1/2 DAYS.
IT'S NOT -- YOU'RE NOT
ARGUING THIS WAS AN
IMPULSIVE MURDER.
>> WELL, IT BEGAN THAT WAY.
AND THIS IS THE THING.
THAT WHEN HE WENT IN THAT
VEHICLE AND IF YOU LOOK AT
HIS CONFESSION, HE IN HIS
HEART WANTED TO MURDER HER
FOR WHAT HE DID BUT HE WAS
HOPING THAT, THAT WOULDN'T
HAPPEN.
THAT MAYBE SHE SAID
SOMETHING LIKE I'M SORRY AND
I LOVE YOU.
AND THEN THEY WOULD FORGIVE.
>> HE WAS GOING IN THE
OPPOSITE DIRECTION OF THE
BANK WITH THE GUN IN THE
CAR.
>> THAT'S CORRECT.
>> AND HE HAD PLACED A BB
GUN IN PLACE OF THE GUN AT
HIS FRIEND'S HOUSE OR
SOMETHING.
>> THE JUDGE THE TRIAL JUDGE
HERE DETAILED THE ELABORATE
PLAN THAT HE -- THERE WAS
MORE THAN THAT.
TO AFFECTIONATE THIS SCHEME.
NO QUESTION.
[AUDIO DIFFICULTIES]
>> AN OUT-OF-AREA VISITOR
WAS STAYING THERE.
SOMEONE TESTIFIED THAT HE
HAD SEXUAL RELATIONS.
HE DENIES THAT.
YES, THAT CAME INTO RECORD
IMPROPERLY.
BUT THE THING WAS THAT HAD
HE GONE TO THE FOREST AND
EXCUTED HER YOU WOULD HAVE A
CCP CASE HERE.
BURT THAT'S NOT WHAT
HAPPENED.
SHE LEFT THE VEHICLE AND
THEN HE -- AND IN THE RAGE OF
HER NOT AGAIN DOING HIS
BIDDING -- BECAUSE IF YOU REMEMBER, HE
WAS IN A PSYCHIATRIC
HOSPITAL IN THE FIRST
MARRIAGE WHERE HIS WIFE HAD
COMMITTED HIS FIRST WIFE HAD
COMMITTED INFIDELITY AND
ENDED UP IN A PSYCHIATRIC
HOSPITAL OVER IT.
HE THEN BATTERED VERY BADLY
A WOMAN WHO SAW ANOTHER
PERSON THAT DAY AND HE CAME
AND CONFRONTED HER.
THIS WAS A MAN WHO WAS NOT
OF THE TYPICAL FRAMEWORK
WHEN IT COMES TO THIS ISSUE.
>> LET'S EXPLORE THE
CONSEQUENCES OF YOUR THEORY.
YOU ARE SAYING THAT SOMEBODY
CAN HAVE AN ELABORATE PLAN
TO MURDER SOMEBODY BUT IF
THE VICTIM DISCOVERS THE
PLAN BEFORE THE MURDER IS
CARRIED OUT, THEN YOU CAN
NEVER HAVE A CCP BECAUSE NOW
THE PLAN HAS BEEN STYMIED. wE'RE
AT PLAN B NOW. PLAN A
WAS GETTING CARRIED OUT ALL
THIS TIME. BUT NOW WE'RE IN
PLAN B BECAUSE THEY
DISCOVERED IT, SO NOW IT'S NO
LONGER A CCP.
IF THIS WAS A CONTRACT
MURDER AND THIS GENTLEMAN
WAS GOING BY CONTRACT MURDER
THIS PERSON IN THE FOREST
BUT THEY GOT AWAY IN THE CAR
AND THEY MURDERED THEM, THEN
THAT WOULD BE CCP, TOO.
BECAUSE THIS IS AN ACT
MURDER.
THIS PERSON'S SOLE GOAL WAS TO
MURDER THIS PERSON.
>> WHAT'S THE DISTINCTION
HERE?
HERE YOU HAVE A DOMESTIC
SITUATION AS HE SAID IN HIS
OWN CONFESSION, YOU KNOW,
I'M NOT SURE I COULD HAVE
DONE IT OR SOMETHING TO THAT
EFFECT.
BECAUSE I LOVE HER SO MUCH.
AND HAD SHE SAID THE RIGHT
THING I MAY NOT HAVE DONE
THIS.
>> CLEARLY IF HE WOULDN'T
HAVE DONE IT WE WOULDN'T
HAVE CCP.
>> BUT THE FACT THAT HE DID
IT THERE IS CCP IT SEEMS TO
PLEA.
HE CARRIED OUT HIS PLAN
WHETHER THE WAY HE WANTED TO
CARRY IT OUT OR NOT.
>> DON'T WE HAVE CASES, FOR
EXAMPLE, WHERE A PERSON HAS
ELABORATE PLAN TO KILL A.
OKAY.
BUT B GETS IN THE WAY.
MAYBE B -- THERE WAS A CASE
I BELIEVE SECURITY GUARD A
RUNS AWAY AND THE SECURITY
GUARD IN THE COURTHOUSE GETS
SHOT AND KILLED AND WE STILL
FOUND CCP EVEN THOUGH HE
DIDN'T PLAN TO KILL B HE
PLANNED TO KILL A.
ISN'T THAT THE EXACT SAME
TYPE SITUATION?
>> AGAIN, YOU HAVE A PERSON
WHO HAS A MENTAL DEFECT NOT
TO THE RISE OF YOU KNOW
INITIATED THE CRIME BUT OF
SOMEONE WHO SUFFERED THIS
KIND OF THING DOES NOT HAVE
CONTROL OVER THE FACULTIES ANY
LONGER.
IT'S BEEN PROVEN.
[AUDIO DIFFICULTIES]
>> YOU'RE CHARACTERIZATION
IS ACCURATE.
BUT HE FURTHER SAID IN HIS
CONFESSION THAT YOU KNOW, I
LOVE HER SO AND THIS COULD
HAVE GONE DIFFERENT.
SOMETHING TO THAT EFFECT.
[AUDIO DIFFICULTIES]
>> YES.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
THIS WAS AN EMOTIONALLY
ENRAGED PERSON IN A DOMESTIC
VIOLENT SCENARIO.
THAT'S WHAT MAKES THIS
DIFFERENT THAN THE OTHERS.
AND I THINK THAT HAD
SOMETHING GONE DIFFERENT,
THIS MURDER WOULDN'T HAVE
OCCURRED.
HE WAS CHILD-LIKE IN
HIS -- THAT HE'S GOING TO
GET HIS WAY WITH HER AND DO
WHAT HE IS GOING TO DO.
[AUDIO DIFFICULTIES]
>> WELLM THAT WAS ARGUED AT
TRIAL.
BUT IT WAS -- IT WAS NOT
ACCEPTED BY THE TRIAL COURT,
OBVIOUSLY.
>> YOU ARE INTO YOUR
REBUTTAL.
I WOULD LIKE TO SPEAK.
>> GO AHEAD.
>> I WOULD LIKE TO SPEAK TO
THE KIDNAPPING CHARGE.
IN THIS PARTICULAR CASE
THERE WAS A MOTION FOR
JUDGMENT OF ACQUITTAL ON THE
KIDNAPPING BECAUSE THERE WAS
NOT AN ACTUAL -- NOT
ABDUCTION, BUT A CONFINEMENT
OF THIS VICTIM.
AND IN THIS PARTICULAR CASE
AND THERE ARE MANY CASES
LIKE THIS -- WHERE SOMEONE
USES TRICKERY OR SOME OTHER
DEVICE TO GET THEM TO GO
ALONG SOMEWHERE.
AND THEN SOMEWHERE AT SOME
POINT IT DOESN'T GO THE WAY
IT'S SUPPOSED TO.
AND THIS COURT AND THE CASES
THAT ARE CITED BY THE STATE
THERE IS SOMETHING
ADDITIONAL THAT MAKES THIS
PERSON DECONFINED.
THE BOYLE CASE.
THE EVANS CASE.
THERE'S ALWAYS SOME SORT OF
CONFINEMENT.
IN THIS CASE THERE WASN'T.
>> WAS IT THE GRABBING BY
THE HAIR OR THE USE OF THE
WEAPON WITHIN THAT CATEGORY?
>> IF HE HAD DRAWN THE
WEAPON AND SAID IF YOU LEAVE
I'M GOING TO SHOOT YOU,
THAT'S CONFINEMENT.
NONE OF THAT OCCURRED.
>> HOW ABOUT THE HAIR?
>> HE TRIED TO -- SHE
GRABBED THE WHEEL.
>> AND HE TRIED
TO GRAB HER AND WAS
UNSUCCESSFUL.
AND SHE FLED OUT THE
VEHICLE.
SO -- IT'S LIKE THE CASE
FROM THE DISTRICT COURT WE
CITED THE HEADLOCK.
THE HEADLOCK IS NOT
SUFFICIENT.
THIS WAS TRIED UNDER THE
COMMITTED AFTER THE STATUTE
HAD THE AMENDMENT THAT ADDED
THE THREAT PART; CORRECT?
I MEAN THIS --
>> I BELIEVE SO.
>> YES.
LET ME GO TO ONE OTHER
SUBJECT EVEN THOUGH YOU ARE
RUNNING OUT OF TIME.
CRAWFORD WAS NOT ARGUED
HERE; RIGHT?
>> NO, IT WAS NOT.
>> ON YOUR PRIOR THE FELONY.
>> NO.
>> I WILL RESERVE MY TIME.
THANK YOU.
>> I WOULD LIKE TO SPEEK TO
ISSUE 1 FIRST. THE FIRST
ISSUE AND THE TRIAL COURT'S
FINDINGS WERE THAT YOU TALKED
ABOUT ABUSE OF DISCRETION.
YOU HAVE STANDARD OF REMANIFEST
AREA.
THAT'S CITED ON PAGE 28.
WHAT HE SAID AT NO TIME DID HE
INDICATE HE WOULD BE
ANYTHING OTHER THAN FAIR AND
IMPARTIAL.
ACTUALLY HE COUCHED HIS
COMMENT, UNLESS YOU HAVE
EYEWITNESS STATEMENT THAT HE
KILLED SOMEONE I WOULD LIKE
TO HEAR HIS SIDE OF THE
STORY.
IF YOU LOOK AT EVERYTHING
THE JUROR SAID AND THE
RECORD IS RE -- JUROR AND
THE RECORD IS COMPLETE WITH
THE COLLOQUYS BETWEEN JUROR
MULLINOX.

WHAT HE SAID IS NO TIME DID HE
INDICATE THAT HE WOULD BE
ANYTHING OTHER THAN FAIR AND
IMPARTIAL.
ACTUALLY, HE COUCHED HIS
COMMENT BY SAYING UNLESS YOU
HAVE SOME EYEWITNESS STATEMENTS
THAT HE KILLED SOMEONE, I WOULD
LIKE TO HEAR HIS SIDE OF THE
STORY.
SO IF YOU LOOK AT EVERYTHING
THAT JUROR MULL {NAX} SAID AND
THE RECORD IS REPLETE WITH CALL
{QE}S BETWEEN JUROR MULLINAX
JURORS IS THAT HE HAD BEEN ON A
JURY HE HAD CONVICTED AN
INNOCENT MAN AND HE FOUND THAT
OUT THROUGH THE NEWSPAPER
BECAUSE THEY HAD DONE DNA
TESTING AND HE SAID UNLESS THE
STATE HAS SOME EYEWITNESSES,
THEN I WANT TO HEAR HIS SIDE OF
THE STORY.
I WANT TO KNOW WHAT HIS SIDE OF
THE STORY IS.
AS FAR AS HIS IMPARTIALITY TO
SUPPORT THE JUDGE'S FINDINGS,
AT 186 HE SAYS I HAVE NO
PRECONCEIVED IDEAS ON THIS
CRIME.
AS FAR AS HIS TRAGIC EXPERIENCE
I COULD SET ASIDE THOSE TRAGIC
EXPERIENCES.
>> DON'T WE EXPECT THOUGH ON
WHAT THE TRIAL JUDGE NEEDS TO
DO, IF THERE WAS, AND AGAIN,
THIS, WE'VE READ THIS FULL
VOYEUR DEAR OF THE JURRER AND
HE'S ALL OVER THE PLACE AND
HE'S SAYING THING I'M NOT EVEN
SURE I UNDERSTAND WHAT HE'S
TALKING ABOUT WITH HERMAN ON
THE ON THE MOUNTAIN YOU KNOW,
BUT WHEN IT GETS TO THIS PART,
IF THERE WAS AN ISSUEREINFORCED
THAT {YOUNDS} THE DEFENDANT
DOESN'T HAVE TO TAKE THE STAND,
THAT HE'S INNOCENT UNTIL PROVEN
GUILTY OUR CASE LAW SAYS THAT
IT'S THEN INCUMBENT ON THE
TRIAL JUDGE OR THE PROSECUTION,
NOT THE DEFENSE TOO, CLARIFY
THAT THOSE STATEMENTS WHICH
APPEAR TO INDICATE SOMETHING
THAT IS I'D REQUIRE HIM TO TAKE
THE STAND CLARIFIED.
THE JUDGE DIDN'T DO THAT AND
THE PROSECUTION DIDN'T DO IT.
ARE YOU SAYING THAT THESE
STATEMENTS THAT MR.^MULLINAX
MADE, IS STANDING OUT THERE, IS
CONSISTENT WITH A JUROR IN OUR
CASE THAT CAN BE FAIR AND
IMPARTIAL?
WITHOUT FURTHER CLARIFICATION?

>> BECAUSE IF YOU LOOK AT THE
QUESTIONS THAT THE DEFENSE
COUNSEL WAS ASKING HIM, ASKING
HIM, OKAY, WE ARE TALKING ABOUT
A HYPOTHETICAL HERE, YOU KNOW
THE JUDGE IS GOING TO TELL YOU
THAT THE DEFENDANT DOES NOT
HAVE TO TESTIFY BUT DO YOU
THINK THAT THAT LAW SHOULD BE
DIFFERENT, AND HE SAID, WELL, I
WANT TO HEAR HIS SIDE OF THE
STORY.
I'M GOING TO HOLD THE STATE TO
THEIR BURDEN OF PROOF.
I CONVICTED AN INNOCENT MAN.
AND I KNOW THE LAW IS NOT THAT
WAY, BUT YOU ASK ME HOW I
REALLY THINK.
AND HE HAD SAID PREVIOUSLY --
>> WELL MS.^-- THE PROBLEM THAT
I'M HAVING IS WITH OVERTON,
AND, AND IF WE SET OUT IN
OVERTON WHAT THE QUESTION AND
ANSWERS WERE BETWEEN THAT
JUROR, AND IF WE HAD SET OUT
THE QUESTIONS AND ANSWER WITH
MULLINAX AND ONE OF THOSE
ANSWERS IS UNLESS YOU HAVE AN
EYEWITNESS ACCOUNT EVERYTHING
ELSE IS {HERS} ACCORDING TO THE
WAY I BELIEVE.
HEAR SAY IT'S ALL HEAR SAY
UNLESS YOU HAVE A WITNESS WHO
SAW HIM DO IT.
THE ONLY TWO PEOPLE WHO KNOWS
WHO DID IT IS HIM AND THE
PERSON WHO DIED UNLESS HE CAN
GIVE AN AACCOUNT THAT IT DID
NOT HAPPEN OR A WAY IT
HAPPENED.
AND THEN HE WAS ASKED QUESTIONS
IN THIS SAME PERIOD OF THE
{VOIRD} AS TO WHETHER HE COULD
ACCEPT THE LAW AND HE SAID I
DON'T KNOW.
>> HE DID SAY -- HE SAID I
GUESS SO OR I DON'T KNOW.
NOW, HE HAD PREVIOUSLY SAID
THAT ON PAGE 418 AND 419 THAT
EVEN IF THE LAW WERE DIFFERENT
FROM THE BIBLE, HE WOULD DO
WHAT THE JUDGE TOLD HIM.
HE WOULD DO WHAT IS INSTRUCTED.

SO, I MEAN, THERE IS SO MUCH
CONVERSATION IN HERE, AND YOU
HAVE TO RELY ON THE TRIAL
JUDGE'S VANTAGE POINT IN
LOOKING AT EVERYTHING THAT
HAPPENED AND JUST BECAUSE OF --
TRIAL COUNSEL WRAPS A JUROR
AROUND THE AXLE ON AN ISSUE
WHEN HE IS CLEARLY SAYING I
CONVICTED AN INNOCENT MAN.
I WANT HOW TO HEAR BOTH SIDES
OF THE STORY F. THE STATE
DOESN'T HAVE EYEWITNESSES, IT'S
ALL HEARSAY TO ME.
>> LET ME JUST TO FOLLOW UP ON
THAT.
WE SEE TWO KINDS OF CASES
INVOLVING VOIR DIRE.
ONE IS WHERE SOMEBODY STARTS
SOMEONE DOWN A ROAD LIKE, YOU
KNOW, WELL, DON'T YOU THINK
THAT -- WHAT DO YOU THINK THERE
NEEDS TO BE FOR THE DEATH
PENALTY AND THE JUROR HAS NO
IDEA SO THEY START SAYING
THINGS THAT ARE MAYBE A LITTLE
BIT OFF AND SOMEONE'S GOT TO
GET THEM BACK.
THE PROBLEM IS THAT THIS JUROR
FITS INTO WHAT I SEE AS A
SECOND CATEGORY, SOMEONE WHO'S
LIFE EXPERIENCE MAKES THEM
ALREADY AN -- A JUROR THAT MAY
NOT BE FAIR AND IMPARTIAL TO
EITHER SIDE.
ALL RIGHT?
BECAUSE WE'RE LOOKING AT THE
SYSTEM OF JUSTICE.
HE'S GOT PEOPLE THAT HE THINKS
SHOULD'VE GOT AN GREATER
PENALTY.
SOMEONE THAT DIDN'T.
THIS IS A WALKING CAUSE PERSON.

AND HE NOW THEN SAYS AND THIS
IS FURTHER WHAT I BELIEVE.
AND I DON'T -- I DIDN'T SEE
THIS AS BEING ONE OF THE THINGS
WHERE THE DEFENSE LAWYER IS
TRYING TO LEAD HIM INTO BEING
-- YOU KNOW, IMPARTIAL.
HE WAS ALREADY SAYING ALL THESE
SCREWY THINGS.
SO I'M CONCERNED THAT YOUR
SAYING THAT WELL, WE SHOULD
REALLY CONSIDER THAT BECAUSE HE
ALREADY KNEW THAT HE CONVICTED
AN INNOCENT MAN, HE PROBABLY
WOULD BE FAIRER TO THE
DEFENDANT.
WE JUST DON'T KNOW THAT.
AND ON THIS RECORD, ISN'T THERE
A REASONABLE DOUBT AS TO HIS
ABILITY TO BE FAIR AND
IMPARTIAL?
>> AND THAT'S WHERE -- AND YOU
ASKED ABOUT EITHER THE STATE OR
THE TRIAL JUDGE REHABILLITATING
THE JUROR.
THEY DID NOT PERCEIVE HIM AS
BEING IMPARTIAL Y. MEAN, WHEN
HE SAID MY COUSIN STABBED HER
HUSBAND BECAUSE HE CHEATED ON
HER AND I THINK SHE'S
JUSTIFIED.
I MEAN, --
>> IS THAT A STATEMENT OF A
JUROR THAT IS CAPABLE OF BEING
FAIR {SKPIM} PARTIAL THAT HAS
THAT VIEW?
>> NO.
HE SPEAKS HIS MIND.
HE'S VERY VERBAL.
HE SAYS EXACTLY WHAT HE'S
THINKING BECAUSE THEY'VE TOLD
HIM THERE ARE NO RIGHT OR WRONG
ANSWERS.
WE'RE GOING TO ASK YOU A BUNCH
OF HYPOTHETICALS.
TELL US HOW YOU REALLY FEEL AND
THEN WHEN HE DOES THEY GO,
WRONG ANSWER.
NO, THERE IS NO WRONG ANSWER.
HE WAS SO OPEN WITH THEM, AND
HE HAD ALL THESE INCIDENCES IN
HIS FAMILY AND THEY SECOND HIM
WELL, CAN YOU SET ASIDE THOSE
TRAGIC EXPERIENCES TO SIT ON
THE JURY AND HE SAID YES, I
CAN.
HE'S, HE SAID, YOU KNOW, AS FAR
AS THE DEATH PENALTY, WELL,
JESUS DIED FOR US ON THE CROSS.

THAT DOESN'T MEAN THERE CAN'T
BE A DEATH PENALTY BUT -- AND
HE HAD THESE VERY DEEP
RELIGIOUS CONVICTIONS, BUT AS
THE JUDGE SAID, HE WAS JUST
OPEN.
I MEAN, IF YOU ASK SOMEBODY HOW
THEY REALLY THINK AND THEY TELL
YOU, THAT DOESN'T MEAN THAT YOU
JUDGE HIM AS NOT BEING ABLE TO
SIT ON A JURY BECAUSE HE'S HAD
A LOT OF LIFE EXPERIENCES.
>> DID YOU ADDRESS, THOUGH, IF
YOU TAKE OVERTON, YOU KNOW,
OVERTON v. STATE JUST A CASE,
{THATS} THOSE ALL SEEM THAT
THEY ARE JUST, THAT WE'D HAVE
TO -- WOULDN'T WE HAVE TO
OVERRULE THOSE DECISIONS IN
ORDER TO SAY THIS ONE IS
INDICATIVE OF A COLLOQUY OF
SOMEONE WHO COULDN'T BE FAIR
AND IMPARTIAL?
>> NO BECAUSE IF YOU LOOK AT
OVERTON, AND OVERTON WAS THIS
JUROR WAS CLEARLY DID NOT
UNDERSTAND THE PRESUMPTION OF
INNOCENCE.
MR.^MULLINAX CLEARLY DID.
MR.^OVERTON THINK PHYSICAL, IF,
IF YOU DON'T TESTIFY, YOU'RE
HIDING SOMETHING.
HE'S SHIFTING THE BURDEN TO THE
DEFENDANT.
YOU'RE HIDING SOMETHING IF YOU
DON'T TESTIFY.
IF YOU DON'T GET UP AND, AND
TALK THEN YOU'RE NOT INNOCENT.

HE, HE JUST DID NOT UNDERSTAND,
AND WHAT THEY HAD TOLD JUROR
MULLINAX AT THE BEGINNING, YOUR
{RR} PRESUMED INNOCENT AND
EVERYTHING WE TALK ABOUT IS
HYPOTHETICAL.
WELL HE GOT THAT BECAUSE HE HAD
BEEN ON A JURY WHERE HE GOT IT
WRONG AND HE WANTED TO HEAR IT.

AND THAT'S COMPLETELY DIFFERENT
FROM JUROR RUSSELL WHO'S GOING
OH, NO, IF YOU DON'T TESTIFY,
YOU'RE HIDING SOMETHING AND YOU
HAVE TO TESTIFY.
JUROR MULLINAX IS JUST
COMPLETELY HONEST ABOUT HOW HE
FEELS.
YOU KNOW, IF THE STATE DOESN'T
GIVE ME AN EYEWITNESS, IT'S ALL
HEARSAY.
IF WE FIND THAT THE TRIAL JUDGE
ERRED IN NOT GRAND {GRANT}
AGCAUSE CHALLENGE, WILL YOU
ADDRESS WHETHER THE BUZBY
MAJORITY REQUIRES THERE BE A
NEW TRIAL OR IS OLAY NOT THE --
SOMEBODY THAT WOULD BE AN
OBJECTIONABLE JUROR UNDER --
>> YES, AND I URGE THIS COURT
TO RECEDE FROM BUZBY.
THIS IS THE CASE THAT SCREAMS
OUT FOR A HARMLESS ERROR
ANALYSIS IF YOU FIND THAT THE
TRIAL JUDGE ERED IN STRIKING
HIM FROM CAUSE Y. -- WHICH
LISTS ALL THE CASES FOLLOWING
THE MAJORITY RULE NAT WAS
ISSUED IN MAY OF THIS YEAR, AND
THE ONLY CAY {THAS} DIDN'T FIND
WAS A CALIFORNIA CASE.
CALIFORNIA -- EVEN CALIFORNIA
NOW HAS GONE WITH THE MAJORITY
RULE SO I SUPPLEMENTED WITH
BOTH THOSE CASES.
THERE ARE NOW, I THINK, 28
CASES WHICH FOLLOW WITH THIS
COURT CALLS THE FEDERAL RULE.
>> ARE THERE ANY, DO WE HAVE
ANYTHING IN OUR JURISPRUDENCE
IN FLORIDA GO TO MAYBE A
DIFFERENT CATEGORY OF SOMEONE
WHO IS JUST NOT QUALIFIED TO
SIT ON A JURY BUT SOMEHOW THEY
GET ON A JURY.
CAN WE APPLY A HARMLESS ERROR
ANALYSIS FOR THAT, SOMEONE WHO
HAS BEEN CONVICT OFFEND A CRIME
FOR SOMETHING LIKE THAT?
CONVICTED FELON BUT THEY END UP
SITTING ON A JURY FOR WHATEVER
REASON OR, NONCITIZEN.
WHATEVER IT IS.
DO WE HAVE JURISPRUDENCE THAT
SAYS WE USE A HARMLESS ERROR
ANALYSIS?
>> THE CLOSEST CASE I CAN THINK
OF ON THAT IS THE WILLSY CASE
WHERE THE JUROR WAS ON PRETRIAL
INTERVENTION, JUROR CLARK, AND
WE ARGUED THAT JUST RECENTLY,
AND BUT {YOURNS} FOUND THAT
PRETRIAL INTERVENTION WAS NOT
UNDER PROSECUTION.
AND.
>> OKAY.
THE REASON MY CONCERN IS THAT
WHEN WE START TALKING ABOUT
HARMALIZE ERROR IN MOST
SITUATIONS, WE'RE TRYING TO
DETERMINE THE IMPACT, WHAT
IMPACT IT HAD ON THE CASE AND
WE'RE USUALLY TALKING ABOUT
MERITS OR SUBSTANCE.
BUT WHEN YOU ARE TALKING ABOUT
THE COMPOSITION OF A JURY,
HISTORICALLY IT'S ALWAYS BEEN
NOT WHETHER A JURY GOTS IT
RIGHT OR WRONG.
THE ISSUE IS DID YOU EVER HAVE
A PROPER JURY TO EVE {BN} GIN
W. NOT THAT YOU HAD, YOU KNOW
AN IMPROPER JURY BUT THEY HAVE
GOT IT RIGHT UNDER THESE FACTS.

WOULD YOU COMMENT ON THAT?
THAT SEEMS TO ME --
>> YES, SIR, AND THAT'S THE
FOCUS OF THE UNITED STATES
SUPREME COURT IN ROSS AND
MARTINEZ-SALAZAR IS THAT YOU
HAVE A CONSTITUTIONAL RIGHT TO
A FAIR AND IMPARTIAL JUROR.
JUROR MULLINAX DID NOT SIT.
JUROR BELAY WAS THE ONE THAT
MR.^TATTY RECOGNIZED AS THE
JUROR.
JUROR BELAY IS THE BEST JUROR
YOU WOULD EVER FIND, AND THIS
-- THAT'S WHY THIS CASE CRIES
OUT FOR, I MEAN, IF YOU CREATE
A FLORIDA CONSTITUTIONAL RULE
TO PREEMPTORY CHALLENGES, LIKE
THE COURT DID IN BUZBY, THEN IF
THE LEGISLATURE INCREASES OR
REDUCEATHIZE AMOUNT OF
PREEMPTORY CHALLENGES IS ARE
THEY ABROGATING A
CONSTITUTIONAL RIGHT?
IF THE LEGISLATURE DECIDED TO
GIVE THE STATE FIVE PREEMPTORY
CHALLENGES RATHER THAN TEN IN A
CAPITAL CASE, ARE WE DENY
ADCONSTITUTIONAL RIGHT?
>>IUM {RR} JUST MAKING SURE.
I'M NOT SURE I GOT AN ANSWER TO
THE QUESTION.
I ASKED YOU WHETHER UNDER BUZBY
WOULD BELAY QUALIFY AS AN
OBJECTIONABLE JURR?
>> HE IS NOT AN OBJECTIONABLE
JUROR.
>> SO WHY ARE YOU ASKING US TO
RECEDE FROM BUZBY IF UNDER
BUZBY THIS WOULDN'T BE A
REVERSAL?
>> BECAUSE THE WAY THEY READ
BUZBY AND MAYBE I'M MISREADING
BUZBY BUT BUZBY SAYS IF YOU
STRIKE JUROR MULLINAX FOR CAUSE
AND YOU JUMP THROUGH THE RIGHT
TECHNICAL HOOPS AND YOU
IDENTIFY A URER EVEN IF HE'S
NOT OBJECTIONABLE, YOU WIN.
NOW --
>> YOU'RE SAYING THAT IF, THE
RULE IN BUZBY IS THAT IF YOU
WOULD HAVE BEEN ABLE TO
EXERCISE THE PREEMPTORY
CHALLENGE ON A JUROR, AND YOU
COULDN'T EXERCISE THAT
PREEMPTORY CHALLENGE BECAUSE
YOU ARE OUT OF CHALLENGES AND
THE JUDGE GID DIDN'T GIVE YOU
ANOTHER ONE THAT THAT'S -- IT'S
NOT A TECHNICAL -- WE WERE HERE
YESTERDAY -- IT'S NOT A
TECHNICAL HOOP.
THESE ARE ALL DONE BECAUSE THE
TRIAL IS A DYNAMIC PROCESS.
SO WOULD BELAY QUALIFY UNDER
BUZBY AS A JUROR THAT WAS
IDENTIFIED AND WOULD HAVE BEEN
STRUCK AS A PREEMPTORY
CHALLENGE?
>> HE IDENTIFIED JUROR BELAY AS
THE JUROR HE WOULD STRIKE.
>> SO DOES IT SATISFY -- UNDER
BUZBY, WOULD THIS THEN BE A
REVERSE.
>> YES.
OKAY I JUST WANT -- SO YOU'RE
URGING US TO RECEDE FROM BUZBY
BUT UNDERSTANDING THEN I JUST
WANT -- THAT BELAY THAT HE DID
PROPERLY PRESERVE THIS ISSUE
UNDER BUZBY?
>> YES, AND WHEN HE IDENTIFIED
JUROR BELAY AND HE SAID AND I
WOULD LIKE TO SAY THAT I KNOW
HE DOESN'T RISE TO THE LEVEL
{OFL} A CAUSE CHALLENGE BUT
I'M, I'M HAVING TO STRIKE, -- I
WOULD IDENTIFY HIM AS MY JUROR
TO USE PREEMPTORY AND IF YOU
LOOK AND THAT'S WHY BUZBY NEEDS
TO BE FIXED BECAUSE IN THIS
CASE YOU LOOK AT WHEN HE -- HE
ACCEPTED MULLINAX.
HE STRUCK THREE OTHER JURORS
AND THEN HE GOES BACK AND HE
ASKED FOR A CAUSE CHALLENGE ON
MULL MAX AND -- MULLINAX AND
THE JUDGE SAYS WELL DO YOU WANT
TO {JUS} A PREEMPTORY AND HE
SAYS I GOT TO THINK ABOUT IT.
THEN HE STRIKES ANOTHER JURRER
AND THEN HE GOES BACK TO
MULLINAX AND SAYS NOW I'M GOING
TO USE A PREEMPTORY ON HIM AND
ASK FOR ANOTHER ONE.
THIS IS CLEAR TECHNIICALITY OF
HIM TRYING TO COMPLY WITH THE
BUZBY RULE SO HE CAN GET A NEW
TRIAL.
AND THE ONLY THING THAT HE WAS
DENIED WAS THE RIGHT TO ANOTHER
PREEMPTORY NOT THE RIGHT TO AN
IMPARTIAL JURY.
>> SO WE CAN GET OUR SEMANTICS
STRAIGHT, WHEN WE'RE -- AND
MR.^BIRDSON REFERRING TO AN
OBJECTIONABLE JUROR UNDER
BUZBY.
WE'RE NOT TALKING ABOUT BIAS
JURY -- JUROR.
WE'RE TALKING ABOUT A JUROR
THAT HAS BEEN IDENTIFIED AS
SOMEONE WHO I OBJECT TO SITTING
BECAUSE I WOULD USE MY
PREEMPTORY ON?
CORRECT.
YES, SIR.
YES, SIR.
>> ON THE ISSUE OF BUZBY ON
THIS CASE, IS THE CORRECT THAT
THE JUDGE STRUCK FOR CAUSE 18
OR 19 OTHER JURORS.
>> I WENT BACK AND TRIED TO
COUNT THOSE QUICKLY AND I'M NOT
SURE THAT MY COUNT IS ACCURATE
Y. COUNT THREE THAT HE STRUCK
ON DEFENSE COUNCIL MOTION.
I HAVE ONE ON 462 HE DENIED
STATE CHALLENGE FOR CAUSE AND 1
ON 463 HE DENIED DEFENSE
COUNSEL FOR CAUSE.
THE TEACHER THAT HAD A GRADE
HER FCAT PAPERS.
HE DENIED THAT FOR CAUSE.
>> LET ME SEE IF YOU
UNDERSTAND.
>> SHE HAD TO WHAT?
GRADE FCAT PAPERS?
>> SHE HAD TO GRADE FCAT PAPERS
SO SHE DIZANT WANT TO SIT ON
THE JURY.
AND HE DENIED THAT CHALLENGE.
>> WITH REGARD TO YOUR APPROACH
TO PASSING OVER MR.^MULLINAX
AND DISCHARGING OTHER JURORS,
ARE YOU SUGGESTING THAT THERE
IS A PROCEDURAL VIEW THAT ONE
SHOULD TAKE THAT IF THAT JUROR
IS NOT IDENTIFIED IMMEDIATELY,
THAT WE SHOULD TREAT HIM
DIFFERENTLY FOR CAUSE CHALLENGE
THAT PERSON HAS GIVEN ALL THEIR
ANSWERS ARE AND YOU CONTINUE ON
WITH VOIR DIRE AND YOU ARE
STRIKING OTHER FOLKS AND
LOOKING AT THE PANEL AS IT
EXISTS THAT WE SHOULD HAVE SOME
OTHER PROCEDURAL THAT SOMEHOW
THAT'S, THAT'S WAIVED OR CURED
BECAUSE YOU ARE LOOKING AT THE
ENTIRE PANEL?
ARE YOU MAKING THAT ARGUMENT?
>> UNDER BUZBY HE HAD PRESERVED
THIS.
BUT THIS IS THE PERFECT EXAMPLE
OF WHY THE BUZBY RULE IS NOT
WORKING.
BECAUSE HE LOST SIGHT OF THE
FACT THAT HE WAS GOING FOR AN
IMPARTIAL JURY, AND HE BECAME
FIXATED.
THE TRIAL COUNCIL COUNSEL
BECAME FIXATED ON PRESERVING AN
ERROR.
>> YOU KNOW THAT'S NOT A --
>> THAT'S -- SO THE ANSWER TO
MY QUESTION IS NO, YOU'RE NOT
SUGGESTING HOW IT'S DONE IS A
FACTOR?
>> UM, I, I, I CANNOT HONESTLY
SAY THAT HE DID NOT PRESERVE
THIS UNDER -- GIVEN BUZBY.
I CAN SAY THOUGH THAT THIS
SHOWS THE EVIL OF THE BUZBY
RULE BECAUSE YOU'RE -- YOU ARE
NOT WORRIED ABOUT AN IMPARTIAL
JURY.
MULLINAX DID WANT SIT.
BELAY IS A PERFECT JURRER AND
SO YOU CAN GIVE POINTS TO
ANYBODY WITH A PULSE AND SAY I
WIN.
>> YOU'VE ANSWERED MY QUESTION.

>> I JUST WANT TO GO BACK TO
SOMETHING.
I MEAN, TO, TO INFER THAT THIS
DEFENSE LAWYER WAS DOING
ANYTHING OTHER THAN TRYING TO
PICK A FAIR AND IMPARTIAL JURY
FOR HIS CLIENT WITHOUT MORE IN
A RECORD I'M VERY CONCERNED
ABOUT.
I MEAN TMAY BE THAT BECAUSE HE
HAD ONLY FEW PREEMPTORY
CHALLENGES LEFT, MAYBE HE WAS
HOPING THAT THE STATE WOULD,
WOULD STRIKE JUROR MULLINAX.
I MEAN, WE WERE ALL TRIAL
LAWYERS.
YOU ARE SAYING WELL THIS GUY IS
A MIXED BAG, LET ME SAVE MY,
I'VE GOT SOME OTHER PEOPLE THAT
I'VE GOT ISSUES WITH THAT DON'T
RISE-FOOT LEVEL OF CAUSE BUT I
DON'T LIKE THE WAY THEY'VE
ANSWER THESE QUESTIONS LET ME
STRIKE THE ONES I REALLY HAVE
TO GET OFF.
I KNOW I AM GOING TO HAVE TO
STRIKE MULLINAX BUT LET ME SEE
IF THE STATE IS GOING TO DO
THIS.
SO HOW DO WE KNOW ON THIS
RECORD THAT WHAT THE JUDGE --
THAT WHAT THIS DEFENSE LAWYER
IS TRY THE STATE UP FOR
REVERSIBLE ERROR.
>> AND I DIDN'T EVEN MEAN TO
INFER THAT.
>> WELL IT SOUNDED LIKE THAT TO
ME.
>> AND I APOLOGIZE.
AND I APOLOGIZE TO MR.^MILLER
WHO IS A VERY SEASONED TRIAL
ATTORNEY AND IF IT SOUNDED LIKE
THAT, I DIDN'T MEAN FOR IT TO
SOUND LIKE THAT.
I'M JUST SAYING THAT
TECHNICALLY THIS IS PRESERVED
BUT WHEN YOU ACCEPT A JUR{SKBR}
SAY LET ME THINK ABOUT IT AND
THEN FOUR JURORS LATER YOU GO
BACK AND BACK STRIKE HEM AND
THEN IDENTIFY A JUROR LIKE
BELAY WHO YOU SAY COULD NOT SIT
ON THE JURY AND RECOGNIZE THAT
HE DOESN'T RISE TO THE LEVEL OF
A-- OF A CAUSE CHALLENGE.
>> WELL, MS.^, AS A ONE WHO HAS
PICKED A LOT OF JURORS, I THINK
MR.^MILLER WAS IN A {QAUND}RY
AS TO WHETHER HE WANTED
MR.^MULLINAX OR DID WANT WANT
MR.^MULLINAX UNTIL HIS HAND WAS
FORCED, WHICH I WOULD BE IF I
WERE LOOKING AT MR.^MULLINAX IN
THIS WHOLE {ZEM} SCHEME.
BUT LET ME MOVE ON TO, TO THE
CCP, IF YOU WOULD, AND
MR.^MR.^BURDEN'S ARGUMENT SEEMS
TO ME TO BE THAT THERE WAS A
POINT IN TIME WHERE RAGE TOOK
OVER.
EVEN THOUGH ADMITTEDLY THIS
STARTED OUT AS A PREMEDDITATED
PLAN.
THAT THERE WAS STILL -- HE
COULD STILL HAVE BEEN TALKED
OUT OF IT.
WHAT IS THE STATE'S RESPONSE TO
THAT?
>> WELL, THE STATE'S RESPONSE
TO THIS IS THAT IT JUST DOESN'T
GET MORE PREMEDDITATED THAN
THIS.
IF YOU READ HIS STATEMENT, HE
PLANNED THIS FOR THREE DAYS.
HE WENT TO THE BANK AND GOT
$3,000 SO THAT WHEN HE WENT TO
PRISON AFTER KILLING HER, HIS
SONS COULD HAVE THAT MONEY TO
PUT IN HIS COMMISSARY.
HE STOLE A GUN.
WENT TO WAL-MART.
HE HAD A FRIEND THAT HAD A GUN
IN HIS SEAT SO HE GOES TO
WAL-MART, GETS A GUN THAT LOOKS
LIKE IT, AND REPLACES IT SO
HE'S GOT A GUN.
>> WHAT ABOUT THE ASPECT OF
THIS THAT ISN'T A PRIOR VIOLENT
FELONY?
, THAT IN FACT HE HAD BEAT THE
PERSON TO SUCH A {LUFBL} THAT
-- BUT THEN HE DID BACK OFF AND
TOOK HER TO THE EMERGENCY ROOM.

YOU KNOW I THINK THE
PSYCHOLOGIST HAD TESTIFIED PUT
SOME WEIGHT ON THAT AS TO
WHETHER HE IN FACT WAS IN A
RAGE.
>> WELL THE PSYCHOLOGIST WAS AT
THE PENALTY PHASE MITIGATION.
THERE WAS NO KIND OF, YOU KNOW,
SICOLOGICAL TESTIMONY THAT HE
WAS, YOU KNOW, REACHED A LEVEL
OF INSANITY OR ANYTHING ELSE.
THEY DID TRY TO MAKE THIS CASE
A SECOND DEGREE MURDER CASE.
BUT THE CONFESSION IS, IT WAS
SO PLANNED, SO CALCULATED, HE
COULD'VE WALKED AWAY FROM THIS
AT ANY TIME.
HE BROUGHT A WEAPON.
HE HID IT FROM HER WHEN SHE
MANAGED TO GET OUT OF THE CAR,
HE TOOK THE CLIP, PUT IT IN THE
GUN, AND CHAMBERED A BULLET,
CHASED HER DOWN, SHOT HER ONCE
SHE WENT INTO THE FETAL
POSITION AND THEN HE AIMED FOR
HER HEART.
AND THEN WHEN THAT WASN'T
ENOUGH, HE, HE SHOT HER AGAIN.

THE CLOSE CONTACT WOUND RIGHT
THROUGH THE STOMACH.
>> GOING TO THE CHASE, WOULD
YOU ALSO ADDRESS THE
KIDNAPPING?
IS IT YOUR VIEW, YOUR POSITION
THAT THE KIDNAPPING WAS
COMPLETED DURING THE RIDE OUT
TOWARDS THE OCALA NATIONAL
FORCEST OR JUST WHAT IS YOUR
VIEW?
WHAT IS YOUR POSITION WITH
REGARD TO THIS?
>> WELL, FIRST OF ALL, THIS WAS
NOT PRESERVED AS TO ANYTHING
EXCEPT SHE GOT IN THE CAR
VOLUNTARILY.
>> RIGHT.
>> AND --
>> AND AT THAT POINT THERE
WOULD NOT BE THE KIDNAPPING,
CORRECT?
>> WELL, THAT'S THE QUESTION F.
HE {FRAUJ}ULATELY INDUCED HER
TO GET IN THE CAR WITH THE
INTENT TO KILL HER.
>> WELL, HAVEN'T WE ALREADY
CROSSED THAT BRIDGE THESTEP
FATHER TAKING HER TO PUBLIX AND
TOWARDS THE EVERGLADES WE
DIDN'T HAVE ANY EVIDENCE THAT
SHE EXITED THE VEHICLE AND WAS
FOUND DEAD IN THE ROADWAY BUT
THIS COURT HELD THAT KIDNAPPING
COULDN'T BE UPHELD THERE.
>> CORRECT BUT IF YOU LOOK AT
THE ARGUMENT ON JUDGMENT OF
EQUITTAL.
HE DIDN'T --
>> WHAT IS THE --
>> THAT IS THE ONLY ARGUMENT
THAT MADE.
THE KID {NP}ING OCCURRED WHEN
HE PULLED THE GUN OUT AND SHE
TRIED TO GET OUT OF THE CAR AND
GRABBED HER BY THE HAIR AND
WOULD NOT LET HER OUT OF THE
CAR AND THE CAR WAS -- VERY
HEAVILY TRAVELED YARE {SQU} AND
HE'S TRYING TO GET OUT WITH A
GUN RIGHT THERE.
THAT'S KIDNAPPING AND THEN THE
OTHER ISSUE THAT HE SPOKE ABOUT
WAS WE, WE, WE DID CYP
KIDNAPPING, OH, I DID WANT TO
POINT OUT ON CCP A FEW OTHER,
OTHER POINTS THAT HE TOOK HER
TO A -- THAT HE WAS TAKING HER
TO A REMOTE PLACE.
HE HAD TO RELOAD HER GUN.
HE CHASED HER DOWN.
HE KEPT THE BYSTANDERS AWAY
UNTIL HE WAS SURE SHE WAS DEAD.

>> YOU ONLY HAVE A FEW MINUTES
LEFT.
WOULD YOU ADDRESS THE ISSUE OF
PROPORTIONALITY?
>> YOUR OPPONENT DECIDE
ADNUMBER OF OUR CASES WHERE
IT'S, A DOMESTIC SITUATION.
AN EMOTIONAL SITUATION.
AND THAT THIS COURT SETICIDE
THE IMPOSITION OF THE DEATH
PENALTY UNDER THOSE
CIRCUMSTANCES.
>> AND YES, SIR, I THINK THAT
IN THE CASE OF RICHARD LYNCH
FORWARD, FROM 1999, THE COURT
HAS RECEDED FROM THAT DOMESTIC
VIOLENCE EXCEPTION.
>> SO YOU THINK THOSE CASES ARE
NO LONGER GOOD LAW?
THAT THAT ANALYSIS.
>> LYNCH IS VERY GOOD LAW.
>> PARD {SNN}.
>> LYNCH IS VERY GOOD LAW.
LYNCH IS --
>> MY QUESTION IS IS, WHETHER
THOSE, YOU SAY PRIOR CASES, ARE
THEY STILL GOOD LAW?
>> WELL MOST OF THEM GOT LIFE
SENTENCES, SO, I MEAN, THERE
WAS A TIME WHEN THIS COURT,
WHEN IT WAS A DOMESTIC VIOLENCE
SITUATION SAID, WELL, HE WAS
UNDER THE INFLUENCE OF EXTREME
EMOTIONAL AND SUBSTANTIAL
IMPAIRMENT AND THAT'S VERY
WEIGHTY.
WE DON'T EVEVEN THAT HERE.
THE DOCTOR DID NOT SAY THAT ANY
PROBLEM HE HAD ROSE --
>> MY QUESTION TO YOU REALLY IS
SHOULD WE LOOK AT THE CASES
THAT HE HAS CITED TO US, AND
I'M NOT SURE WHETHER I
UNDERSTAND YOUR ANSWER.
EARLIER YOU SAID SOMETHING LIKE
THAT WE'VE RECEDED FROM THOSE
CASES.
IS THAT, IS THAT WHAT YOU'RE --

>> NO, SIR, YOU'VE RECEDED FROM
THE CASES THAT ALLOW THE
DOMESTIC VIOLENCE EXCEPTION
THAT EVEN CONSIDER THE FACT
THAT AS MR.^{PPL} KOPSHO SAID,
IT'S MY WIFE, I CAN EXTERMINATE
HER.
THE DOMESTIC VIOLENCE
EXCEPTION, I MEAN, IF -- IT
GOES INTO PLAY ONLY IF THERE
WAS MENTAL ABERRATION.
HE DID NOT HAVE ANY STATUTORY
MITIGATION.
DR.^McMAN TESTIFIED THAT THAT
HEED HE HAS A PROBLEM WITH
REJECTION FROM HIS MOTHER AND
SO HIS FIVE FAILED MARRIAGES,
BUT IT, IT DIDN'T EVEN RISE TO
THAT -- HE SAID HE KNEW EXACTLY
WHAT HE WAS DOING.
HE PREPLANNED T. NOTHING ROSE
TO THE LEVEL OF STATUTORY
MITIGATION.
A JUDGE GAVE MODERATE WEIGHT TO
THE FACT THAT HE HAD EMOTIONAL
-- THAT HE DID NOT HANDLE
REJECTION WELL BUT WE HAVE FOUR
VERY STRONG AGGRAVATING
CIRCUMSTANCES.
WE HAVE THE PRIOR VIOLENT
FELONY, WHICH HE WAS STILL ON
PROBATION FOR, SO THAT'S UNDER
SENTENCE OF IMPRISONMENT.
WE HAVE DURING A KIDNAPPING AND
COLD CALCULATED.
AS TO THE MITIGATION, YOU LOOK
AT THE MODERATERATEWEIGHT TO
THE EMOTIONAL DISTURBANCE THAT
HE HAD FROM REJECTION, HE
COOPERATED WITH THE POLICE, HE
DID NOT FLEE, HE SHOWED SOME
LEVEL OF REMORSE, HE DID NOT
HURT THE BYSTANDERS, HE WAS
ABANDONED BY HIS {MOERLTH}.
HE WENT TO {ZWRUFBL} DETENTION
AT AGE 16, HE WAS A GOOD FATHER
AND GOOD WORKER.
WE DON'T HAVE ANY HEAVY DUTY
STATUTORY MITIGATORS AND
DR.^McMAN SAID.
>> THE RECORD SHOWED HE HAD
BEEN MARRIED A NUMBER OF TIMES
BEFORE?
>> FIVE.
>> AND WHAT WERE THE AGES, THE
AGE OF THE VICTIM AND THE AGE
OF THE DEFENDANT IF YOU KNOW?
>> SHE WAS 21 WHEN HE KILLED
HER AND HE WAS 47.
AND HE HAD MET HER WHEN SHE WAS
17.
SHE MOVED IN WITH HIM WHEN SHE
WAS 18.
BUT AS FAR AS PROPORTIONALITY
IS THE CASE HE SITES LIKE
FITZPATRICK CRAZY AS A LOON.
HUR ZOG AND DOUGLAS.
THE OTHER CASE WHERES THERE'S
THIS EXTREME MENTAL AND -- SEE
EVEN THOUGH HE TRIED TO MAKE
THIS INTO I WAS SO UPSET ABOUT
HER CHEATING WITH ME HE'S
LIVING WITH ANOTHER WOMAN.
HE PLANNED THIS FOR THREE DAYS.

I MEAN THIS IS AS CALCULATED AS
IT GETS.
AND IF YOU READ HIS -- I MEAN
EVEN TAKING THE MONEY FROM THE
BANK.
AND HAVING $3,000 IN HIS WALLET
SO WHEN THEY ARREST HIM HE'S
GOT MONEY.
>> CAN YOU SPEAK TO THE PRIOR
VIOLENT FELONY TESTIMONY OF THE
OFFICER?
PARTICULARLY THE STATEMENT OF
THE OFFICER THAT HE SAID THAT
THE VICTIM SAID SHE COULDN'T
COOPERATE BECAUSE HE KILLED ME?

>> AND THERE WAS NO OBJECTION.

>> WELL CAN YOU SPEAK TO THE
FUNDAMENTAL AIRR?
>> I MEAN HE BEAT HER UP PRETTY
BAD AND SO THE OFFICER
TESTIFIED EXACTLY WHAT SHE
WOULD'VE TESTIFIED TO, AND
THAT'S WHY IT WAS RELEVANT
BECAUSE, SEE, THEY ALSO
PRESENTED COP SHOW -- KOPSHO'S
SIDE.
HE JUST SAID HE HIT HER WITH A
TWO BY FOUR AND SHE CAME
VOLUNTARILY TO FLORIDA AND HE
NEVER SEXUALLY BATTERED HER.
THAT WAS RELEVANT TO THE FACT
THAT HE SAID HE WOULD KILL HER.

WHAT HE ACTUALLY HIT HER WITH
WAS A SHOT GUN.
>> DO WE KNOW WHETHER THE
VICTIM WAS AVAILABLE TO TESTIFY
OR -- FROM THE RECORDS
STRATEGIC DECISION NOT TO CALL
THE VICTIM BECAUSE THE
EMOTIONAL ASPECTS?
>> YES, SIR, AND THERE WAS A
DISCUSSION WHEN THEY WERE
TALKING ABOUT PRESENTING THE
DETECTIVES BECAUSE OF ROADS AND
THIS COURT'S CASE LAW THAT SAYS
IT'S {RARLTH} TO HAVE AN
UNIMPASSIONS PERSON NOT THE
VICTIM COMING IN TALKING ABOUT
THAT.
AND SO IT WAS A STRATEGIC THAT
THE STATE ATTORNEY SPECIFICALLY
HAD THE DETECTIVE COME BECAUSE
THIS COURT HAD SAID IN ROADS WE
DON'T WANT THE VICTIMS UP
THERE, YOU KNOW INFLAMING
PASSIONS.
>> THE VICTIM LISTED AS A
POTENTIAL WITNESS BY THE STATE?

>> NO.
>> WAS SHE DEPOSED OR ANYTHING
LIKE THAT?
>> I'M NOT SURE ON THAT.
I JUST -- I'M NOT SURE.
BUT THE ISSUE ON APPEAL WAS
WHETHER OLD CHIEF APPLIED.
AND THAT WASN'T PRESERVED
BELOW.
THEY NEVER SITED OLD CHIEF OR
THAT HE AEROED TO STIPULATE TO
THE PRIOR VIOLENT FELONY SO THE
PHOTOGRAPHS WOULDN'T COME AND
IN THE JUDGE LOOKED AT THE
PHOTOGRAPHS AND HE SAID I DON'T
FIND THESE SO INFLAMMATORY AND
THE WITH MY SIX SECONDS LEFT I
WOULD AFFIRM ASK THAT THE COURT
AFFIRM THE CONVICTION AND
SENTENCES.
>> MR.^BURDEN, REBUT.
>> MAY IT PLEASE THE COURT.
I WOULD LIKE TO SAY THAT THIS
WAS A DEATH RECOMMENDATION BY A
VOTE OF 9-3.
THIS, THE JURY WAS TAINTED BY A
NUMBER OF THINGS BEFORE THEY
RENDERED THEIR RECOMMENDATION.

THEY WERE TAINTED BY THE FACT
THAT A KIDNAPPING CHARGE WAS
BROUGHT BEFORE THEM THATWHERE
{R} I ARGUED DID NOT EXIST.
THERE WAS EVIDENCE OF THE
IMPROPER VIOLENT FELONY.
THE IMPROPER INTRODUCTION,
MAKING THAT A FEATURE OF THE
FELONY PHASE.
THEY MADE A FEATURE OF IT WITH
A WITNESS TESTIFYING TO ALL
THESE THINGS, BRINGING IN
PICTURES.
IT WAS MOST OF THE PENALTY
PHASE.
>> THERE WAS NO -- THERE WAS NO
OBJECTION TO, THERE WAS AN
OBJECTION -- NO OBJECTION TO
THE -- IN ON A STATUTORIERING
-- ON THE HEARSAY BASIS AT
TRIAL, CORRECT?
>> THAT'S CORRECT.
>> NO DRAWFORD OBJECTION.
>> THAT'S CORRECT.
>> BUT THERE WAS THE,
HOOOBJECTED TO THEM NOT
STIPULATING TO IT SO THESE
THINGS WOULD NOT OCCUR.
AND THEN THE, THERE WAS THE
JURY INSTRUCTION ON HACK IN
THIS CASE, WHEN IT CLEARLY WAS
NOT A HACK CASE, AND I THINK
THIS CONFUSES JURIES, AND IT
FURTHER TAINTED --
>> THAT'S ALL RIGHT.
HE'S GOT 30 SECONDS.
>> OKAY.
AND FINALLY, THE INTRODUCTION
OF THE FACT THAT HE HAD --
COULD'VE HAD SEXUAL RELATIONS
WITH SOMEONE STAYING IN HIS
HOUSE, THIS TAINTED THE JURY.
IMPROPERLY.
AND RENDERED THE RECOMMENDATION
TAINTED.
AND IN CONCLUSION, I WOULD SAY
THAT THE DOUGLAS DECISION IS
GOOD LAW.
THAT WAS RENDERED BY THIS COURT
IN 1991, AND THAT IN THE
CONTEXT OF DOMESTIC RELATIONS,
THIS COURT SHOULD AS IN DOUGLAS
FIND THAT THE DEATH SENTENCE
WAS DISPROPORTIONATE AND I
THANK YOU SO MUCH FOR YOUR
TIME.
>> THANK YOU VERY MUCH FOR THE
CANDID RESPONSES TO OUR
QUESTIONS.
AND WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THANK YOU VERY MUCH.
>> COURT WILL STAND IN RESES
UNTIL 9:00 TOMORROW MORNING.