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.
David Sylvester Frances v. State of Florida
SC05-892
GOOD MORNING.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
>>> OKAY.
WE ARE GOING TO PROCEED TO
NUMBER FOUR CASE FOR THE
NEXT CASE THIS MORNING.
THAT IS FRANCES VERSUS STATE
OF FLORIDA.
>> THANK YOU, YOUR HONOR.
>> GOOD MORNING.
MAY IT PLEASE THE COURT, MY
JAME IS JIM WULCHAK,
ASSISTANT PUBLIC DEFENDER
FROM DAYTONA DAYTONA BEACH,
WE REPRESENT DAVID FRANCES
IN THE RESULT OF TWO DEATH
SENTENCE.
WE SUBMIT THAT IT IS
CONSTITUTIONAL ERROROR TO
CONCLUDE FROM THE JURY'S
CONSIDERATION RELEVANT
EVIDENCE OF THE PENALTY
PHASE OF THE TRIAL WHICH
SHOWED THE BACKGROUND AND
CHARACTER OF THE DEFENDANT
AND HIS ROLE IN THE CRIME
ESPECIALLY WHEN COMPARED TO
THAT OF HIS MORE CUPPABLE
AND VIOLENT BROTHER ELVIS
AND THE FACTS LEADING UP TO
THE CRIME WHICH ESTABLISHED
THE DOMINANCE BY THE BROTHER
WHO WAS THE LEAD ACTOR HERE.
>> WHAT KIN OF ARGUMENT DID
YOU MAKE ON THE BRIEF ON
THOSE ISSUES?
WHAT KIND OF ARGUMENT DID
YOU MAKE ON THE BRIEF ON
THOSE ISSUES?
>> YOUR HONOR, THAT THE
TRIAL COURT ERRORED IN
EXCLUDINGING A LOT OF THE
EVIDENCE BECAUSE IT WAS
HEARSAY WHERE HEARSAY IS
ADMISSIBLE AT THE OPINION TY
PHASE OF THE TRIAL AN ALSO
THAT THE EVIDENCE WAS
RELEVANT THE STATE OBJECTED
TO RELEVANCY GROUNDS ON THE
REMAINING ONE AND IF CAN I
GO THROUGH THEM TESTIMONY
REGARDING THE FAMILY HISTORY
OF THE DEFENDANT, HIS
IMPOVERISHED CONDITIONS
UNWHICH HE GREW UP
DESCRIBING THE HOUSE AND THE
POVERTY IN WHICH HE GREW UP,
THAT WAS EX EXCLUDED BECAUSE
OF HEARSAY, REPORTS THAT
THERE WERE DOMESTIC ABUSE ON
THE DEFENDANT AND HIS
BROTHER WITH THE COURT
ESPECIALLY SIGNIFICANT HERE
BECAUSE A CORD WAS USED ON
THE CRIMES.
>> WHAT WAS THE TESTIMONY --
HOW HAS THAT TESTIMONY
THOUGHT TO BE INTRODUCED
INTO EVIDENCE?
>> THAT WAS THOUGHT TO BE
PRODUCED THROUGH THE
TESTIMONY OF THE MENTAL
HEALTH EXAMINER WHO HAD
SPOKEN --
>> NOW THIS IS A AN EXPERT
OR THOUGHT TO BE INTRODUCED
THROUGH A MITIGATION?
>> I AM SORRY, THAT WAS
THROUGH THE MITIGATION
PERSON.
>> WHO IS JUST SOMEBODY
GATHERING INFORMATION?
>> YES.
WHO HAD GATHERED INFORMATION.
>> AND THAT WAS SELF-REPORT
BY THE DEFENDANT?
>> YES, YOUR HONOR.
>> AND THE DEFENDANT'S
BROTHER.
YES, YOUR HONOR.
>> WHO DID NOT TESTIFY?
>> YES.
>> HOW US THE STATE -- I
VERY MUCH AGREE, WE WANT TO
GIVE A LOT OF LATITUDE IN
PRESENTING MITIGATION, BUT
HOW IS THAT, YOU KNOW, I
MEAN, THAT IS HEARSAY AND
WHERE IS THE ABILITY TO
REBUT IT ON THE PART OF THE
STATE JUST AS THAT EXAMPLE?
>> WE SUBMIT THAT HEARSAY IS
ADMISSIBILITYABLE AT THE
PENALTY PHASE OF THE TRIAL,
RELAXED EVIDENCE BECAUSE, OF
COURSE, WE ARE AGGRAVATOR,
IT IS SPECIFICALLY LIMITED
TO THE STATUTORY
CIRCUMSTANCES AN EVIDENCE
HAVE TO BE LIMITED TO THAT,
BUT EVIDENCE IS TO
MITIGATING CIRCUMSTANCES THE
COURT HAS HELD THE U.S.
SUPREME COURT HAS HELD WIDE
OPEN AN BENEFICIAL AND IN
THE INTEREST OF JUSTICE TO
PRESENT THE MOST EVIDENCE TO
THE JURY OF MITIGATION AND
IT IS CONSTITUTIONALLY
REQUIRED.
HERE THERY TE OF
CONFRONTATION APPLIES TO THE
STATE, HOWEVER A PLAIN
READING OF THE 6th AMENDMENT
SAYS THE ACCUSED HAS THE
RIGHT TO CONFRONT WITNESSES
GAINS HIM, NOT THE STATE,
THE PURPOSE OF THE 6th
AMENDMENT WITH A WAS TO GIVE
ACCUSED ADEQUATE PROTECTION
AGAINST THE GOVERNMENT NOT
VICE VERSA.
>> WHERE IS TESTING THE
ACCURACY OF INFORMATION IF
THE STATE HAS ABC LAUT FLO
ABILITY TO CHALLENGE
COMPLETELY --
>> CERTAINLY IT CAME OUT AN
WOULD COME OUT THAT THIS WAS
SELF-REPORTED BY THE
DEFENDANT AND HIS BROTHER
AND THE STATE IS FREE TO
ARGUE SELF-REPORTING IS NOT
ENTITLED TO GREAT WEIGHT.
>> SO IF WE ACCEPT THE
POSITION, THE DEFENDANT
COULD SAY WHATEVER HE WANTED
TO MITIGATION SPECIALISTS
AND THE MITIGATION
SPECIALISTS CAN GET ON THE
STAND AND THERE WOULD KNOB
LIMITATION AS TO WHAT THE
SPECIALIST WAS SAY IS WHAT
THE DEFENDANT TOLD HIM OR
HER?
>> AGAIN, THE ARGUE WOULD BE
AS TO WEIGHT.
WE SUBMIT RATHER THAN
ADMISSIBLE, THE STATE, OF
COURSE, CAN GET UP, A JURY
CAN WEIGH THAT, WELL, THIS
CAME FROM THE EFFICIENT
DEFENDANT, FROM NOBODY ELSE,
BECAUSE MITIGATION CANNOT BE
LIMITED.
MITIGATION EVIDENCE, YOUR
HONOR.
>> WELL, I AM A LITTLE BIT
CONCERNED HERE ABOUT HOW
THIS WAS PRESENTED TO THIS
COURT.
I THINK IT GOES BACK TO JUST
JUSTICE CANTERO'S INITIAL
QUESTION TO YOU, IN YOUR
BRIEF, YOU TALKED ABOUT AT
LEAST EIGHT DIFFERENT THINGS
THAT YOU ALLEGED TO HAVE
BEEN SUBMITTED; HOWEVER,
YOUR BRIEF ON THIS ISSUE
COVERS ABOUT FOUR PAGES AND
THERE IS NO REAL ARGUMENT
HERE AS TO HOW THIS
INFORMATION WOULD HAVE BEEN
HELPFUL, WHAT IT WOULD HAVE
DONE, THOSE KINDS OF THINGS,
SO I AM REAL CONCERNED THAT
YOU SEE THIS AS A VERY
IMPORTANT ISSUE, BUT YOU
DON'T FLUSH IT OUT REALLY
FOR THE COURT.
>> I APOLOGIZE TO THE COURT.
I THOUGHT THAT I HAD A QUATELY
COVERED IT ON THE BRIEF, BUT
WE SUBMIT THAT THESE ARE
RELEVANT.
THEY GO TO MITIGATING
CIRCUMSTANCES, STATUTORY AND
NON-STATUTORY, THAT THIS
COURT HAS FOUND IN OTHER
CASES.
>> WHAT DO YOU IS YOU LIST
-- AFTER GOING THROUGH THE
STANDARD OF REVIEW ON PAGE
19 AND 20, YOU SIMPLY LISTS
THE TYPES OF EVIDENCE THAT
THE COURT EXCLUDED THAT THE
COURT SHOULD HAVE ADMITTED,
YOU DON'T TALK ABOUT ANY
INDIVIDUAL, YOU DON'T SEE
HOW ANY OF THEM INDIVIDUALLY
WOULD HAVE BEEN RELEVANT,
YOU TALK ABOUT ANY OF THE
OTHER EVIDENCE PREVENTED
ANDTHON YOU JUST CITE SOME
CASES ABOUT INTRODUCTION OF
HEARSAY EVIDENCE AND THAT IS
IT.
THE WHOLE THING IS THREE
PAGE, SO I DON'T UNDERSTAND
HOW YOU REALLY PRESERVED
THIS KIND OF ISSUE WHERE
YOUR ARGUMENT ON IT IS SO
SUMMARY.
>> AGAIN, YOUR HONOR, I
APPROXIMATELY GUISE TO THE
COURT IF HE FEELS IF THE
COURT FEELS THAT WAS A
SUMMARY ARGUMENT ON MY PART.
WE DID CONTEND IN THE BRIEF.
I CONTEND NOW THAT RELEVANCE
IS THE TEST AN THESE WERE
RELEVANT.
THE IM POF ISSUED
BACKGROUND.
>> YOU POINTED OUT OCCURRED
DURING THE GUILT PHASE, THE
TESTIMONY.
>> THERE WAS ONE, ONE
INSTANCE, YOUR HONOR, THAT
OCCURRED DURING' THE GUILT
PHASE.
THE OTHER ONES WERE DOING
THE PENALTY PHASE.
>> YOU ARE TYING THIS INTO
THE PENALTY PHASE -- DON'T
WE HAVE A SEPARATE ISSUE AS
TO RELEVANCE AND
MATERIALALITY DURING THE
GUILT PHASE AS OPPOSED TO
WHAT ON A MUCH BROADER LEVEL
WOULD BE RELEVANT?
>> AS THE CASE LAW IS HELD,
EVIDENCE DEVELOPED DURING
THE GUILT PHASE CAN GO TO
AGGRAVATING, MITIGATING
CIRCUMSTANCES, THAT IS WHY
WE INCLUDED IT HERE?
EYE GUESS WHAT I AM SAYING,
I ASSUME YOU WOULD AGREE,
YOU WOULDN'T PUT ON THE
MITIGATION SPECIALISTS
>> YES.
>> YES, YOUR HONOR.
BUT MUCH OF IT DOES COME UP
DURING THE GUILT PHASE, THAT
IS WHY WE INCLUDED THAT IN
THIS PORTION AND LUMED IT
WITH THE PENALTY PHASE BAITS
WAS RELEVANT TO PENALTY
PHASE IS IM POVERISHED
CONDITIONS GROWING UP IS
RELEVANT TO MITIGATING
CIRCUMSTANCES THAT THIS
COURT HAS FOUND AND USED TO
VACATE A DEATH SENTENCE.
>> MOST OF THESE ISSUES THAT
YOU HAVE POINTED OUT THERE
ON THE FACE OF WHAT YOU HAD
IS APPARENT THAT THERE WERE
OTHER WAYS, OKAY, TO PRESENT
EVIDENCE LIKE THAT.
>> YES, YOUR HONOR.
>> WHEN YOU TALK ABOUT
CHILDHOOD CONDITIONS,
OBVIOUSLY, YOU AND OTHERS
ARE KNOWLEDGEABLE ABOUT
BRINGING IN FAMILY MEMBERS
OR TEACHERS OR NEIGHBORHOOD
PEOPLE OR WHOEVER AND HAVING
THEM DESCRIBE, YOU KNOW,
THESE CONDITIONS.
>> RIGHT.
THE MITIGATION SPECIALISTS
TESTIFIED THAT SHE
INTERVIEWED APPROXIMATELY 40
WITNESSES AND THESE
WITNESSES WERE FROM ST.
KITTS AND ST. THOMAS EYE
LANDS IN THE CARIBBEAN AND
THE DEFENSE FELT IT WAS
PROPER TO ADMIT THEM IN THE
WAY AN AVOID THE EXPENSE OF
BRINGING ALL OF THESE
WITNESSES IN TO THE UNITED
STATES TO TESTIFY.
AND THE BETTER WAY, OF
COURSE, WOULD HAVE BEEN TO
BRING THE LIVE WITNESSES TO
TESTIFY, BUT WE SUBMIT THAT
THE COURT SHOULD HAVE LET
THESE IN HEARSAY IS
ADMISSIBLE IN THE PENALTY
PHASE, MANY OF THESE WERE
EXCLUDE SIMPLY BECAUSE THEY
WERE HEARSAY.
>> ISN'T THERE A GREAT DEAL
OF DIF DIF TULLTY, THOUGH,
IF WE TAKE IT TO THE
EXTREME, IS THAT WE HAVE A
MITIGATION SPECIALISTS WHO
HAS INTERVIEWED THESE
WITNESSES, FOR INSTANCE,
SAYS, WELL, YOU KNOW,
MRS. JONES WAS PARTICULARLY
COMPELLING BECAUSE SHE
DESCRIBED THIS INCIDENT, YOU
KNOW, IN WHICH THE FATHER
TOOK THE CHILD IN THE
BACKYARD AND TIED HIM DOWN
THE BACKYARD AND THEN, YOU
KNOW, PROCEEDED TO OBJECT --
INJECT NEEDLES INTO HIS
STOMACH, YOU KNOW, DO ALL
KINDS OF HORRIBLE THING,
SEXUALLY ABUSE HIM, WHAT
JEFF, THE ONLY WAY THAT THIS
IS COMING IN IS FROM A
MITIGATION SPECIALISTS,
SAYING THAT SHE TALKED TO
MRS. JONES OVER IN ST. KITTS
OR WHATEVER.
HOW DOES THE STATE HAVE THE
ABILITY THEN IF THEY NEVER
HEARD OF THAT BEFORE AND
THEY SURE, YOU KNOW, WOULD
LIKE TO BE ON NOTICE THAT
SOMETHING LIKE THAT HAPPENS,
SO THEY CAN CHECK THAT OUT,
AND THEY CAN HAVE THE
OPPORTUNITY JUST AS THE
DEFENSE HAS AN OPPORTUNITY
TO REBUT AGGRAVATION TO
REBUT.
>> I AGREE WITH YOU, YOUR
HONOR.
>> HOW ARE WE GOING TO DEAL
WISH SHOES LIKE TO?
WE ARE GOING TO LET IT IN
THROUGH MITIGATION
SPECIALISTS?
>> THESE WITNESSES WERE ALL
DISCLOSED TO THE STATE.
THEY DEPOSED A MENTAL HEALTH
EXPERT, THEY GOT A LIST OF
THESE WITNESSES, YET, AND
THEY COULD HAVE CONTACTED
THESE INDIVIDUAL WITNESSES
THEMSELVES.
THEY COULD HAVE BROUGHT THEM
IN IF THEY FELT IS NECESSARY
TO REBUT THIS TESTIMONY, BUT
THEY CHOSE NOT TO, WE SUBMIT
THAT THE STATE CAN'T SAY, WE
DON'T HAVE THE OPPORTUNITY
TO REBUT EVIDENCE BECAUSE
THEY DID NOT TAKE THE STEP
TO DEPOSE THESE WITNESSES OR
CONTACT THESE WITNESSES THAT
THEY KNEW ABOUT.
I AGREE THAT IF THE STATE
WAS SANDBAGED, DIDN'T KNOW
ANYTHING ABOUT THE EYE DEN
DY OF THESE IDENTITY OF
THESE, THEN WE WOULD HAVE A
PROBLEM, BUT THE STATE WAS
WELL AWARE OF IT, WHY SHOULD
THE STATE BE ABLE TO
PRECLUDE DEFENSE EVIDENCE
SIMPLY BECAUSE THEY DIDN'T
KNOW WHAT THEY WERE SUPPOSED
TO DO?
>> SO YOU ARE REALLY
BASICALLY SAYING THAT THE
DEFENSE CAN THEN PUT ON THIS
ONE PESH TO GIVE US
TESTIMONY THAT REALLY COMES
FROM 40 PEOPLE AN THEN IT IS
THE STATE'S OBLIGATION,
THEN, TO BRING IN ALL OF THE
40 PEOPLE, THAT IS WHAT YOU
ARE ARGUING?
WE GET TO DO THIS WITH ONE
PERSON WITH ALL OF THIS
HEARSAY, THE STATE THEN HAS
TO COME OUT AND BRING IN THE
40 PEOPLE?
>> AS THEY INDICATED, THEY
GOT TO DEPOSE AND TALK TO
THIS MENTAL HEALTH OR MENTAL,
I AM SORRY MITIGATION
SPECIALIST, THEY GOT THE
LIST OF THOSE WITNESS, THEY
COULD CROSS-EXAMINE THE
MITIGATION SPECIALISTS AND
FIND OUT THE CONTEXT THAT
WAS GIVEN, THEN, THEY COULD
DETERMINE WHETHER TO CONTACT
THESE DECLEARANCE AND TALK
TO THEM ON THE PHONE, FIND
FOUGHT THAT WAS ACCURATE,
FIT WAS NOT, THEY, THEY
COULD BRING THEM IN.
WE SPENT AN AWFUL LOT OF
TIME ON THIS AND REALIZE IT
IS A VERY IMPORTANT ISSUE TO
YOU, BUT YOU HAVE RAISED A
NUMBER OF OTHER ISSUES, TOO.
>> I WOULD LIKE -- BASE
THINK THIS IS A VERY
IMPORTANT ISSUE HERE ABOUT
WHAT MITIGATION SPECIALISTS
CAN AN CAN'T TESTIFY TO.
I MUST SAY I SHARE JUST
JUSTIN CANTERO'S CONCERN,
YOUR BRIEF IS BRIEF, IT IS
48 PAGE, IT'S NOT AND BE
ISSUE OF NOT BEING ABLE TO
GET IT IN, IF THESE ARE
CRITICAL YOU SHALL SURE, THE
COURT NEEDS ASSISTANCE, NOW,
A MIT GAINGT -- WHAT CASE
SAYS THAT A MITIGATION
SPECIALISTS CAN COME IN AND
TESTIFY TO RANK HEARSAY
WITHOUT SAYING ANYTHING SHE
IS RELYING ON THIS IN HER,
YOU KNOW, TO RENDER AN
OPINION, OR ANY OTHER
PREDICATE ON THAT A JUDGE
ABUSE HIS OR HER DIGRESSION
IN EXCLUDING IT.
AGAIN, I MEAN, THAT SEEMS
LIKE IT IS A VERY IMPORTANT
PRINCIPAL.
WE OUGHT TO KNOW WHAT THE
LAW IS ON IT.
CAN A MITIGATION SPECIALISTS
JUST VIEW OUT WHATEVER IT IS
THAT THAT PERSON HAS BEEN
TOLD AND THE JUDGE HAS NO
DIGRESSION BUT TO ADMIT IT
EVEN THOUGH IT IS COMPLETELY
BASED ON HEARSAY?
>> AGAIN, WE WOULD CONTEND
HEARSAY IS ADMISSIBLE AT THE
OPINION TY PHASE.
>> ANY CASE THAT WE
UNDERSTAND THAT, BUT THE
STATUTE SAYS HEARSAY WITH A
FAIR OPPORTUNITY TO REBUT
CRAWFORD MAY APPLY FOR THE
STATE NOT TO THE DEFENDANT,
BUT NEVERTHELESS, HE IS
SAYING THAT THAT STATUTE
WHICH SAYS THERE HAS TO BE A
FAIR OPPORTUNITY TO REBUT,
THEY SAY IT DOESN'T APPLY TO
EVIDENCE THAT THE DEFENDANT
IS TRYING TO INTRODUCE.
>> THE STATUTE DOES SAY IF
THE DEFENDANT HAS THE
OPPORTUNITY TO REBUT --
>> SO THERE IS A CASE THAT
SAYS HEARSAY EVIDENCE CAN BE
INTRODUCED IN THE PENALTY
PHASE BY THE DEFENDANT AND
THAT THE TRIAL COURT HAS NO
DIGRESSION IN EXCLUDING IT
BECAUSE THAT IS REALLY THE
RULE OF LAW THAT YOU ARE
ASKING US TO ADON'T, THERE
IS A CASE THAT SAYS THAT?
>> YES, YOUR HONOR.
GREEN VERSUS GEORGIA SAYS
THAT FROM THE UNITED STATES
SUPREME COURT.
ABOUT HEARSAY?
>> EXCLUDED HEARSAY.
>> YES, IN THAT CASE, IT WAS
CONFESSION.
BY A THIRD PARTY.
>> THAT IS A LITTLE
DIFFERENT.
>> A CASES FROM THIS COURT
RELATING TO ANYTHING SIMILAR?
>> NOT DALING WITH
MITIGATION SPECIALISTS, YOUR
HONOR.
>> THE HITCHCOCK HELD THAT
IT WAS NOT ADMISSIBLE UNDER
SOMEWHAT OF SIMILAR
CIRCUMSTANCE IN A PENALTY
PHASE, CORRECT?
>> HITCHCOCK, I BELIEVE, WAS
DEALING WITH DUE PROCESS
ARGUMENT WHETHER THAN
CONFRONTATION ARGUMENT,
FIRST OF ALL, AND WE SUBMIT
THAT IN LIGHT OF OTHER CASES,
GREEN VERSUS GEORGIA, FOR
EXAMPLE, THAT HITCHCOCK IS
WRONG.
>> PARDON ME?
>> IN ORDER TO GO WITH YOUR
POSITION ON THIS, WE WOULD
HAVE TO RECEDED FROM
HITCHCOCK?
>> WE THINK THAT IS NOT
NECESSARY, THERE WAS A LACK
OF OBJECTION IN HITCH CORKS
IT WAS NOT ADEQUATELY
PRESERVED.
IN THE INDICATES, THE
MITIGATION SPECIALISTS WAS
THE SOURCE, THE INFORMATION
GATHERER IN AND THERE IS
TESTIMONY THAT SHE PRESENTED
ALL OF THIS INFORMATION SHE
GOT TO THE MENTAL HEALTH
EXPERT AND MENTAL HEALTH
EXPERTS REN TITLED TO RELY
ON REPORTS AN INTERVIEWS AND
REVIEWING THE POLICE REPORTS
AN ALL OF THAT INFORM LATING
THEIR OPINION.
>> BUT THAT IS THE PROBLEM
HERE IS THIS WAS NOT A
MENTAL MITIGATION
SPECIALISTS, THIS WAS
SOMEONE WHO JUST WENT OUT
AND GATHERED INFORMATION.
>> RIGHT.
>> SHE WAS TESTIFYING AS TO
THAT PROCESS AND THE FACT
THAT SHE TURNED THIS
INFORMATION OVER TO THE
MENTAL HEALTH EXPERT FOR HIS
USE IN FORMULATING HIS
OPINION IN THIS CASE.
>> AND SO WHY NOT JUST USE
THOSE MENTAL HEALTH EXPERTS?
INSTEAD OF TRYING TO PUT IN
ALL OF THIS HEARSAY THROUGH
THIS OTHER WITNESS?
>> JUST THE FACT THAT IT
WOULD HAVE BEEN ANDYATIONAL
SECOND DOUBLE HEARSAY HAD
THEY DONE IT THROUGH THE
MENTAL HEALTH EXPERT, YOUR
HONOR?
>> WE ALSO SUBMIT THAT THE
DEATH SNS HERE INAPPROPRIATE
WHERE THE COURT FAILED TO
WEIGH OR GIVE ANY INDICATION
OF WHAT WEIGHT THEY WERE
GIVING TO UNCONTRO VERTED
MITIGATION, WHERE THE COURT
BASED ON AGGRAVATING
CIRCUMSTANCE ON MERE
SPECULATION AND WHERE
COMPARISON WITH OTHER CASES
SHOWED THAT THE MITIGATING
CIRCUMSTANCES CLEARLY
UTOUTWEIGH THE AGGRAVATORS.
THIS IS NO THE MOST
AGGRAVATED KILLING NOR THE
LEAST MITIGATED OF CASES.
DAVID'S INVOLVEMENT.
WHAT SPECULATION ARE YOU
SAYING THAT THE TRIAL COURT
ENGAGED IN FINDING AN
AGGRAVATE SNOR
>> DEALING WITH THE
CIRCUMSTANCES CRUEL WITH
REGARD TO THE CHARLES
MURDER, THE TRIAL JUDGE
SPECIFICALLY FOUND THAT
CRUEL DID NOT APPLY TO THE
MILLS MURDER BASED ON THE
MEDICAL EXAMINER'S TESTIMONY
REGARDING TIME OF
UNCONSCIOUSNESS; HOWEVER,
THE MEDICAL EXAMINER
TESTIFIED AT THE PENALTY
PHASE AND I BELIEVE AT THE
SPENCER HEARING, I AM SORRY,
AT THE GUILT PHASE OF THE
TRIAL, THAT, THAT CHARLES,
THE PERIOD OF HER LOSING
CONSCIOUSNESS WAS THE SAME
TIME FRAME AS THAT OF MILL,
YET THE COURT DOESN'T LIST
THAT AND INSTEAD SPECULATES
THAT CHARLES WAS INDEED
CONSCIOUS WHEN, REMEMBER,
ELVIS WAS THE ONE THAT FIRST
ATTACKED AND STRANGLED
CHARLES, AND WE SUBMIT THAT
THE EVIDENCE THAT IS SHE
LOST CONSCIOUSNESS, THERE IS
NO EVIDENCE TO SHOW THAT SHE
HAD REGAINED CONSCIOUSNESS
WHEN THE DEFENDANT APPEARED
TO HELP HIS BROTHER.
THEY FELT THAT CHARLES STILL
HAD SOME LIFE IN HER,
ALTHOUGH, THERE WAS NO
INDICATION THAT SHE REGAINED
CONSCIOUSNESS.
>> WHAT ABOUT THE
DEFENDANT'S OWN STATEMENT?
THAT SHE WAS COMBATIVE WITH
ELVIS, HE CAME IN TO HELP
HER?
>> AND THERE WAS SOME
INITIAL COMBATIVENESS WITH
ELVIS, BUT THE TESTIMONY
FROM THE MEDICAL EXAMINER WE
FEEL SHOWS THAT SHE LOST
CONSCIOUSNESS BEFORE, BEFORE
OUR DEFENDANT.
>> MY QUESTION, DIDN'T DAVID
TESTIFY SHE WAS BEING COME
BAT WHICH HAVE ELVIS, HE HAD
TO GO IN THERE AND HELP HIM
BECAUSE HE WAS BEING
COMBATIVE WITH HIM?
>> I BELIEVE THAT AFTER HE
HAD MOVED MILL'S BODY INTO
THE OTHER, INTO THE BEDROOM,
HIS TESTIMONY WAS, HE WENT
TO ASSIST HIS BROTHER, EVEN
THOUGH SHE WAS NOT MOVING,
THEY FELT SHE HAD LIFE IN
HER.
SO WE SUBMIT EVEN UNDER HIS
STATEMENT THERE WAS NO
EVIDENCE THAT SHE WAS
COMBATIVE AT THE TIME THAT
DAVID ENTERED INTO THE ROOM
WITH CHARLES.
>> IS THERE EVIDENCE WITH
REGARD TO MARKS ALONG THE
NECK MADE POSSIBLY AROUND
NAIL MARKS?
>> YES, SCRAPINGS UNDER FIB
GER NAILS THAT MAY HAVE GIVE
AN DIFFERENT PICTURE?
>> YES.
DOES THAT FIGURE IN?
IS THAT NOT PART OF THE
EQUATION TO UNDERSTAND THE
STRUGGLING?
WE SUBMIT IT IS NOT PART OF
THE EQUATION, IT IS COMMON
FOR THAT TYPE OF MARKING TO
BE ON THERE WHEN A PERSON IS
TRYING TO REMOVE EITHER
HANDS OR A LIGATURE AND
ELVIS WAS THE ONE WHO
STRANGED HER MANUALLY AND WE
SUBMITTED IT IS A OF FAITH
TO SAY THAT THOSE MARKS WERE
PUT ON THERE DURING THE
LIGATURE STRANGULATION IN
WHICH THE --
>> ARE YOU TRYING TO -- I
MEAN, DON'T WE LOOK AT THE
WHOLE PICTURE OF HOW THIS
YOUNG LADY WAS MURDERED AS
OPPOSED TO TRYING TO
SEPARATE OUT WHEN ELVIS WAS
STRANGLING HER VERSUS THE
TWO OF THEM STRANGLING HER,
I MEAN THE WHOLE SCENARIO IF
IT IS CRUEL IS HAN US NOW,
CRUEL AS OPPOSED TO ONE PART
OF IT, SO IT SEEMS TO ME,
YOU ARE TRYING TO SAY THAT
IF THERE WAS ANY CRUEL PART,
IT OCCURRED WHEN ELVIS WAS
DOING IT AS OPPOSED TO WHEN
DAVID GOT INTO THE PRAY.
>> AGAIN, YOUR HONOR, WE
WOULD NOTES INDICATE THAT
THE MEDICAL EXAMINER SAID
THAT THE TIME THAT IT TOOK
CHARLES TO LOSE
CONSCIOUSNESS, WHICH IS PART
OF THE EQUATION WAS THE SAME
AS THE TIME THAT MILLS LOST
CONSCIOUSNESS.
>> WELL IN ACTUALITY, THE
TRIAL COURT IN THAT FINDING
HAC AS TO MILLS -- THAT IS
CORRECT.
>> I MEAN, WE HAVE GOT
SCORES OF CASE CASES THAT
SAY THAT STRANGULATION DEATHS
ARE ALMOST PER SE HAC AND BY
THE DOCTOR TESTIFYING THAT
EACH WOMAN WOULD HAVE BEEN
CONSCIOUS AN AWARE OF WHAT
WAS HAPPENING IN A MINUTE
ONE TO TWO MINUTE, I DON'T
KNOW HOW IT WOULD BE ERROR
TO THE MILL'S MURDER.
>> THERE ARE OTHER CASES
FROM THIS COURT WHICH REJECT
HAC FOR STRANGULATION DEATHS
BECAUSE YOU HAVE TO LOOK AT
THE ENTIRE CIRCUMSTANCES OF
IT.
>> I AM NOT SURE WHERE THAT
MAY HAVE BEEN.
BUT GOING BACK TO JUSTICE
QUINCE'S QUESTION, IN THE
HAC, ASSUMING THAT YOUR
ARGUMENT IS THAT BY THE TIME
THAT DAVID CAME ON WITH
RESPECT TO JOANNA CHARLES,
SHE WAS ALREADY -- THEY
COULDN'T PROVE SHE WAS STILL
CONSCIOUS, THAT IS CORRECT?
>> CORRECT.
>> IS THERE -- BUT YET WE
HAVE CONSIDERED, YOU KNOW,
THE WHOLE SEQUENCE, HOWEVER,
WHAT EVIDENCE THERE IS AS TO
WHAT DAVID KNEW ABOUT WHAT
ELVIS WAS DOING TO THE
VICTIM.
I WOULD INCLUDE IN THAT WHAT
BELL ASKED THROUGH HIS OWN
WORDS AS TO WHAT HE KNEW?
>> HIS WORDS WERE WHEN THEY
ARRIVED AT THE HOUSE, MISS
MILLS WAS OUTSIDE IN THE
GARDEN.
SHE TOLD THE TWO BOYS TO GO
INTO THE APARTMENT AND WHEN
SHE WENT IN, ELVIS JUMPED ON
HER AND THEN MILLS AND THE
DEFENDANT JUMPED ON HER AS
WELL AND ESSENTIALLY TOOK
OVER WHILE ELVIS WENT AND
DEALT WITH CHARLES AND HE
WAS AWARE THAT ELVIS WAS --
SO HE WAS ASFWHAR THAT IS A
CRITICAL FACT?
IT IS NOT AS IF -- WHY ISN'T
IT THEN APPROPRIATE THAT TO
FOCUS ON THE WHOLE EVENT AS
TO OPPOSED TO JUST THE FINAL
TIME WHEN DAVID COMES IN TO
ASSIST IN FINALLY KILLING
THIS PARTICULAR VICTIM?
>> EVEN THE ENTIRE EVENT, WE
SUBMIT, IT IS NOT PER SE,
CRUEL, THE MEDICAL
EXAMINER'S TESTIMONY ABOUT 1
TO 2 MINUTES BEFORE LOSS OF
CONSHOSNESS, I BELIEVE WAS
CLARIFIED SOMEWHAT BY HIM
SAYING THAT WELL, IN STRANGE
LAYING, OFFEN, THE VICTIM IS
ABLE TO MOVE AWAY SO THE
PRESSURE MAY NOT BE
CONSTANT.
WHEN THE PRESSURE IS NOT
CONSTANT, IT CAN TAKE ONE TO
TWO MIN MUTS IS WHAT THE
TESTIMONY WAS AN --
>> SO WHAT EXACTLY --
>> I AM SORRY?
>> WHAT DID THE TRIAL SAY?
HIS EVALUATION OF HEINOUS,
AND CRUEL.
>> DESPITE THE FACT THERE
WAS NO EVIDENCE OF IT.
HE SPECULATES THAT CHARLES
WAS ALIVE AND WAS CONSCIOUS
WHEN DAVID JOINED IN THE
FRAY WITH HER AND, AND THE
TRIAL COURT SPECULATED THAT
CHARLES WAS CONSCIOUS AND
SAW THE DEFENDANT DAVID COME
IN AND THOUGHT, OH, DAVID
GOING TO HELP ME WHEN, IN
FACT, HE DIDN'T.
THAT IS JUST RANK
SPECULATION, THERE WAS
ABSOLUTELY NO TESTIMONY TO
THAT, YOUR HONOR, WE SUBMIT
THAT IS WHAT THE ERROR IS.
>> WHERE WERE THE FINGERNAIL
MARKS ON THE NECK IN
RELATION TO THE LIGATURE
MARKS?
>> I DON'T BELIEVE IT WAS
CLEAR EXACTLY WHERE THEY
WERE.
FROM WAS TESTIMONY THAT THE
LIGATURE HAD SLIPPED.
I BELIEVE AND THE MEDICAL
EXAMINER --
>> IT LEFT A MARK ON HER
NECK?
RIGHT?
>> CORRECT.
>> SO IT WOULD HAVE BEEN --
COULDN'T THE RECORD SHOW
THAT THE MEDICAL EXAMINER
TESTIFIED THAT SHE HAD A
CRESS DENT-SHAPED FINGERNAIL
MARK ON THE NECK THAT WERE
MADE AT THE SAME TIME THAT A
LARGE GROVE WAS MADE IN HER
NECK?
>> THE MEDICAL EXAMINER PAGE
1223 VOLUME 8 OF THE TRIAL
TRANSCRIPT SAYS NO WAY TO
TELL IF CHARLES'
ASPHYXIATION WAS BY MANUAL
STRANGULATION OR LIGATURE
STRANGULATION OR BOTH OR ONE
WAS BEFORE THE OTHER.
>> BUT YOU HAVE WHAT THE
DEFENDANT SAID.
HE SAID THAT ELVIS IS HAVING
STRANGLING TRIAL, SO WHEN
MILLS FINALLY PASSED OUT
FROM THE STRANGULATION, HE
WENT TO ASSIST ELVIS WHO GOT
ELECTRICAL COURT TO USE AS
LIGATURE ON CHARLES THE PAIR
BOTH BEGAN STRANGLING WITH
HER WITH THE CORD SO THEIR
OWN TESTIMONY IS THAT THAT
SHE WAS STILL CONSCIOUS
STRUGGLING THE MANUAL
STRANGULATION DIDN'T WORK SO
THEN THEY GOT THE COURT.
I BELIEVE IT WAS CLARIFIED
LATER IN THE CONFESSION,
WHERE HE TALKED ABOUT AFTER
HE MOVED MILL'S BODY, THEY
BOTH MOVED CHARLES BODY INTO
THE BEDROOM FROM HER OWN
BEDROOM, SO WE SUBMIT THAT
TESTIMONY SHOWS THAT SHE WAS
UNCONSCIOUS AND NOT MOVING
AT THE TIME THAT THEY WERE
ABLE TO JUST CARRY HER INTO
THE OTHER ROOM.
>> WE SUBMIT THAT THERE IS
SUBSTANTIAL MITIGATION HERE,
THE TRIAL COURT EVEN FOUND
THAT THE DEFENDANT'S
INVOLVEMENT IN THE KILLINGS
STEM TRILLION THE
INSTIGATION OF THE DOMINANT
VIOLENT BROTHER.
THE EVIDENCE SHOWED THAT HE
ONLY CECUMED TO THE
INFLUENCE OF HIS BROTHER AND
WAS CRIME FREE UNTIL AGE 20
AND BECAUSE OF THIS
PATHOLOGICAL-DEPENDENT
RELATIONSHIP WITH ELVIS AND
THE NEED TO PROTECT THE ONLY
ONE HE HAD WHEN HE BECAME
INVOLVED IN ELVIS' ACTION,
ALL OF THE TESTIMONY, THE
MULTITUDE OF TESTIMONY SHOWS
THE DEFENDANT, DAVID, WAS
PASSIVE, WAS VIOLENCE-FREE,
WAS A LOVING PERSON GROWING
UP, ALWAYS WILLING TO HELP
OTHERS, WHEREAS THE ELVIS
TESTIMONY SHOWED THAT ELVIS
WAS THE VIOLENT ONE, THE
AGGRESSIVE ONE, THE ONE WITH
PRIOR VIOLENT ACTS, THE ONE
WHO HAD AN INFLUENCE OVER
THE DEFENDANT, WHOM THE
DEFENDANT FEARED, NOT ONLY
WHEN HE WAS A WILD CHILD,
BUT EVEN INTO ADULTHOOD AS
WELL.
>> HE WAS 16.
ELVIS WAS 16.
>> YES, YOUR HONOR.
THE TESTIMONY WAS DESPITE
THE FACT HE WAS 2 YEARS
YOUNGER, A FEW YEARS YOUNGER
THAN HIS BROTHER, HIS
BROTHER WAS AFRAID OF HIM,
HIS BROTHER CARRIED HIS
BOOKS FOR HIM AT SCHOOL
WHICH ONCE A USUAL FOR AN
OLDER BROTHER TO DO FOR A
YOUNGER BROTHER, THE
TESTIMONY WAS THAT FROM
ELVIS' GIRLFRIEND THAT ELVIS
RULED THE HOUSEHOLD, AND
THAT THE DEFENDANT WAS UNDER
HIS INFLUENCE.
>> WHO SAID -- WHICH
TESTIMONY SPECIFICALLY,
WHICH WITNESS SPECIFICALLY
SAID THAT DAVID WAS IN FEAR
OF ELVIS?
>> JONE'S TESTIMONY DID,
YOUR HONOR, AS WELL AS --
SHE SAID HE WAS WITH WIN
FEAR HOW?
HE WAS JUST AFRAID.
>> WHEN HE HELPED ELVIS TO
BURY THE OTHER PERSON THAT
HE MURDERED, HE WAS IN FEAR
OF HIM?
>> YES, YOUR HONOR.
THAT WAS FROM JONES.
JONES WAS THE CODEFENDANT IN
THE OTHER MURDER CASE.
SHE IS THE ONE THAT
TESTIFIED TO THAT, BUT THAT
ELVIS WAS THE DOMINANT FORCE
IN IT.
REMEMBER DAVID WAS NOT EVEN
INVOLVED IN THE ACTUAL
KILLING OF HER.
>> BUT INVOLVED IN THE
ACTUAL KILLING -- UNION THE
DISPOSAL OF THE BODY,
BECAUSE, AGAIN, THE MENTAL
HEALTH EXPERT TESTIFIESED
THAT HE HAD THIS DOMINANCE
BY HIS BROTHER, THIS
PATHOLOGICAL-DEPENDENT
RELATIONSHIP WITH HIM THAT
THE MENTAL HEALTH EXPERT
TRIED TO EXPLAIN THE
INTERACTION BETWEEN THE TWO
AND THAT WHY A LOT OF THE
PRIOR ACTS OF VIOLENCE OF
ELVIS WERE VERY IMPORTANT TO
THIS FACTOR.
WE SUBMIT THE THERE WAS
SUBSTANTIAL MITIGATION IN
THE CASE, A LACK OF
SUBSTANTIAL AGGRAVATION THAT
A LIFE SENTENCES ARE
APPROPRIATE.
THANK YOU.
>> MAY IT PLEASE THE COURT
MY NAME IS BARBARA DAVIS, I
REPRESENT THE STATE OF
FLORIDA.
MAY I START WITH ISSUE 2.
THE DEFENDANT'S STATEMENT
THAT IS PAGE 1459 OF THE
RECORD AND IT LEAVES OUT THE
EVENTS AS FOLLOWS:
THEY CAME TO THE HOUSE AN
DWANE WAS, THERE THEY WAITED
FOR HIM TO LEAVE, THEY CAME
BACK, HELENA, THE OLDER
LADY, INVITED THEM IN, AS
SOON AS SHE ENTERED THE
HOUSE, I AM ON PAGE 1459,
JIMED ON HELENA, HE, MEANING
ELVIS, WENT TO JOE NAN'S
ROOM, SO AND I HAD SAID IN
MY BRIEF, WHEN HE JUMPED ON
HELENA, IT WAS IN THE
BEDROOM, BUT IT WAS NOT IT
WAS IN THE HALLWAY OUTSIDE
OF THE JOANNA'S ROOM.
WHEN WE GOT EXHIBIT, YOU
COULD SEE THE LAYOUT.
THEN DAVIS STRANGLED HELENA,
THEN, SHE PASSED OUT.
I STRANGLED HELENA WITH MY
HANDS, AT THAT TIME, SHE
PASSED OUT.
THEN HE WENT TO JOANNA'S
ROOM.
MY COUSIN WAS, ELVIS, THE
BROTHER, WAS THERE WITH
JOANNA, BUT SHE WAS LIKE SHE
HAVING TROUBLE, HE WAS THERE
AND THEN I TOLD HIM HELENA
PASSED OUT, SO HE WENT AND
GOT THE CORD, I STRANGLED
JOANNA, THIS IS DAVID
TALKING, HE STARTED
STRANGLING GENTLEMEN ANNA,
HE WAS HAVING A HARD TIME
DOING IT, SO THEN I WENT OUT
AFTER DAVID STRANGLING
GENTLEMEN ANNA, ELVIS WENT
AND GOT THE KOURD CORD, THEN
ONCE ELVIS HAD THE CORD AND
HAD CONTROL OF HER, THEN
DAVID WENT OUT, TRIED TO
MOVE HELENA, THEN, HE CAME
BACK IN, I COULDN'T GET HER
MOVED ALONE, THEN JOANNA
PASSED OUT, WHEN DAVID WAS
TRYING TO MOVE HELENA, THEN
HE WENT AFTER HE HAD GONE IN
HELPED STRANGLE HELENA,
ELVIS GOT THE CORD,
STRANGLED HER, WENT BACK
OUT, MOVING HELENA, JOANNA
PASSED OUT, YOU HAVE GOT TO
COME HELP HELENA, I CAN'T
MOVE HER.
THAT IS ON PAGE 1459, I JUST
READ FROM THE RECORD, AN ON
PAGE 1419 WHEN DAVID WAS TRY
FOG BLAME EVERYTHING ON
ELVIS, HE, WHEN DAVE DAVID
WAS SAY THAING WAS JUST ON
THE HOUSE AND ELVIS DID
EVERYTHING, HE WAS TALKING
ABOUT THE STRUGGLE THAT
GENTLEMEN ANNA HAD WITH
ELVIS ON PAGE 1419.
[LOW AUDIO]
>> ON THE GUILT PHASE, THE
MEDICAL EXAMINER TESTIFIED
THAT THEY BOTH DIED FROM
STRANGULATION AN ABOUT THE
FINGERNAIL MARKS THAT WERE
ON THE NECK ON PAGE 1209,
SHE SAID SHE HAD ALMOST
CRESCENT-SHAPED MARKS ON THE
RIGHT NECK THAT LOOKED LIKE
FINGERNAIL MARKS.
NOW THE QUESTION WAS, YOU
SAID THEY LOOKED LIKE
FINGERNAIL MARKS, DID THEY
APPEAR TO OH CORE NEAR IN
TIME?
YES, THEY DID.
NOW THE REST OF THE
TESTIMONY OF THE MEDICAL
EXAMINER ABOUT THE TIMING
AND EVERYTHING, THAT CAME IN
THE GUILT PHASE AN I AM ON
PAGE 61, I MEAN THE OPINION
TY PHASE, I AM ON PAGE 61 OF
THE OPINION TY PHASE AND
WHAT THE MEDICAL EXAMINER
SAID IS WHEN YOU STRANGLE A
PERSON AND I AM AT LINE 22
AND 23, THE MEDICAL EXAMINER,
THE QUESTION WAS:
HOW LONG WOULD IT TAKE A A
PERSON TO BLACKOUT?
SHE SAID A COUPLE MINUTES
USUALLY TO COMPLETELY
BLACKOUT IF THE BLOOD SUPPLY
IS COMPLETELY BLOCKED.
THEN SHE WENT ON IN THE
OTHER PAGES AND SAID, SO
THERE IS ACTUALLY TWO
PROCESS IN STRANGULATION,
THE FIRST, THE BLOOD SUPPLY
MUST BE COME PLOTLY BLOCKED
OFF FOR THE PERSON TO LOSE
CONSCIOUSNESS.
THEN, SHE SAYS, ON PAGE 62,
IF THERE IS A STRUGGLE, AND
THE BLOOD SUPPLY IS
INTERRUPTED, THEN, YOU CAN'T
SAY HOW LONG IT TAKES TO
LOSE CONSCIOUSNESS.
NOW, ONCE GET THE BLOOD
SUPPLY COMPLETELY BLOCKED
OFF, THEN, THE PERSON IS
UNCONSCIOUS, BUT STL STILL
NOT DEAD.
THEN IT WOULD TAKE ANOTHER 3
TO 5 MINUTES TO COMPLETELY
FOR THE OXYGEN TO DEBRIEF
PRIV THE BRAIN AND THE BODY
OF OXYGEN AND SO THAT, ALL
OF THAT ABOUT THE HEINOUS
CAME IN AT THE PENALTY PHASE
AND AROUND 61 AND THAT IS
THE MEDICAL EXAMINER'S
TESTIMONY.
AS FAR AS THE TRIAL JUDGE --
MY RECK ELECTION IS THAT
NOBODY REALLY SAID THAT
DAVID WAS EVER IN FEAR OF
ELVIS.
TAMIKA SAID THAT THEY LIVED
IN APARTMENT TOGETHER, THERE
WERE FOUR OF THEM, DAVID AND
ELVIS' COUSIN, ELVIS, DAVID,
AND TAMIKA, SHE WAS TALKING
ABOUT HOW DAVID WAS THE
AGGRESSIVE ONE, WITH IT WAS
HIS WAY OR THE HIGHWAY, BUT
I DON'T RECALL HER EVER
SAYING THAT SHE --
>> YOU MEAN DAVID OR ELVIS?
>> ELVIS WAS THE BAD BOY.
IT WAS HIS YOU WAY OR THE
HIGHWAY.
HE WAS, UM, HE WAS MORE
AGGRESSIVE.
>> WHAT DOES THE RECORD
REFLECT ABOUT WHEN THIS
OCCURRED IN TALLAHASSEE?
THIS MURDER IN TALL LA HAS?
I
>> IT WAS SEPTEMBER 12th,
2000 WHICH WAS SEPTEMBER 12, 2000.
WHICH WAS AND OUR MURDER WAS
IN NOVEMBER 6TH IN ORLANDO.
>> OF 2000.
>> YES, SIR.
>> OKAY.
AND HOW LONG HAD THIS
DEFENDANT BEEN IN
TALLAHASSEE AT THAT TIME?
HAD BEEN IN THE MILITARY
IMMEDIATELY BEFORE THAT?
>> HE LEFT -- PSI AND JUDGE
DID HAVE THE PSI --
>> RIGHT.
>> WAY BEFORE SENTENCING, HE
LEFT THE MILITARY IN 1999.
>> HE WENT AWOL.
>> YES, SIR.
>> AND DID HE COME STRAIGHT
TO TALLAHASSEE THEN?
>> -- HE WENT INTO THE
MILITARY IN 1998.
AND LEFT THE MILITARY!!$$!!!!!!!!!!!!!!IN 1999 HE WAS
THIS THE MILITARY ABOUT A
YEAR AND A HALF.
>> DID HE GO IN THE MILITARY
FROM WHERE?
>> HE LEFT THE VIRGIN
ISLANDS IN JULY OF 1998 AND
WENT INTO THE MILITARY.
THEN HE WENT AWOL FROM THE
MILITARY IN JANUARY OF 99.
>> DOES THE RECORD DOES THAT
PSI REFLECT WHETHER OTHER
THAN GOING AWOL HE HAD ANY
DISCIPLINERY ISSUES, WHILE
IN THE MILITARY IN.
>> NO, SIR BUT HE HE DR.
MINGTESTIFIED HE SMOKED
MARIJUANA IN THE MILITARY
THAT IS ALSO IN THE PSI, AND
ALSO IN THE PSI THAT DAVID
SMOKED MAR WITHIN AA DAILY
THROUGH HIGH SCHOOL?
THEN THEY AFTER THE MURDER
IN TALLAHASSEE THEY LEFT
TALLAHASSEE BY REASON OF THE
FACT THAT THE DEFENDANT WAS
ON AWOL AND ELVIS HAD MISSED
A COURT APPEARANCE?
FIFRLT AFTER THEY KILLED
MONIQUE WASHINGTON AFTER
ELVIS!!$$!!!!!!!!
ELVIS, AND TAMICA WERE
CHARGED WITH THIRD DEGREE
FELONY MURDER DAVID WAS
CHARGED WITH ACCESSORY AFTER
THE FACT, AND BECAUSE AFTER
ALL -- ELVIS KILLED HER HE
CAME BACK TO THE HOUSE AND
TOLD DAVID "I JUST KILLED
MONIQUE. "
THEY HAD TALKED ABOUT TAKING
HER CAR AND TYING HER UP,
MONIQUE, THEN DAVID WENT
AHEAD AND KILLED HER, AND
CAME BACK, AND TOLD DAVID
AND TAMICA SAID PREEFRL THAT
DAVID SAID, WELL, NOW YOU
KNOW WHAT WE HAVE TO DO AT
TRIAL TO -- TAMICA SAID
DAVID SAID WELL WHAT HAVE
YOU DONE WHAT HAVE YOU DONE?
AND SHE ADMITTED THAT SHE
HAD NEVER SAID THAT BEFORE.
BUT SO THEN DAVID AND ELVIS
TOOK MONIQUE, AND DUMPED HER
DOWN IN A RURAL YEAR NEAR
WAUCHULA SPRINGS, DAVID AND
TAMICA TAMICA PAWNED ALL THE
ITEMS OF MONIQUE DAVID DAVID
AND TAMMACHE WENT TOLANT IN $$
MONACHE'S CAR PARTY$$!!IED FOR A
WHILE THEN THEY CAME BACK TO
TAVLZ AT THIS POINT THE
POLICE WERE LOOKING BECAUSE
ELVIS HAD MISSED A COURT
APPEARANCE AND THE MILITARY
POLICE WERE LOOKING FOR
DAVID.
SO THEIR MOM BROUGHT THEM A
BUS TICKET GO TO ORLANDO.
AND THEY WENT TO ORLANDO.
OCTOBER 15TH, I THINK, WHEN
THEY GOT TO ORLANDO.
NOW, HELENA, WAS THEIR $$
MOTHER'S BEST FRIEND, SO
THEY HAD KNOWN HER AND JO
ANNA THE ISLANDS AND THEY
WOULD GO OVER TO THEIR
HOUSE.
SO ONCE AGAIN, WHEN THEY
NEEDED A CAR, THEY WENT OVER
CHECKED OUT THE HOUSE, AND
THEY NEEDED A CAR TO GET
BACK TO TALLAHASSEE, THE MOM
WAS GOING TO GIVE THEM BUS
PLOEN TO GO BACK TO
TALLAHASSEE, CASE SHE KICKED
THEM BOTH OUT OF THE HOUSE
ELVIS!!$$!!!!!!!!
ELVIS, BECAUSE HE WAS
UNCONTROLLABLE DAVID BECAUSE
SHE WAS RUDE TO HIM.
KIEKDZ THEM BOTH OUT OF THE
HOUSE THEY NEEDED A CAR,
CALLED THEIR MOM AFTER THEY
HELD HELEN AND JOANNA SAID
THAT IS OKAY MOM WE HAVE A
RIDE.
SO HERE IS DAVID WHO WAS SO
ACCESSBLY AFRAID OF ELVIS
BUT IF YOU LOOK AT HIS
CONFESSION, AS SOON AS THEY
WALKED, IN DAVID JUMPED ON
HELENA.
THEN WENT AND HELPED JOANNA
THEN THEY MOVED THE BODY.
THEN THEY WENT OUT AND MOVED
THE CAR.
AND I THINK ACTUALLY DAVID
MOVED $$JOANNA'S CAR OUT OF
THE WAY SO THEY SHOULD COULD
GET THE CAR AWAY WENT BACK
TO ATLANTA LIKE WITH $$
MONIQUE'S CAR PARTIED FOR A
MONTH THEY GOT CAUGHT IN
DECEMBER 6TH, IT WAS MONTH
AFTER THE MURDER.
THAT THEY WERE STOPPED IN
ATLANTA.
IN HANELL' CARRS.
>> WITH LICENSE TAG WAS
STILL ON.
>> YES.
>> THE VEHICLE.
>> YES.
>> HOW WAS MONIQUE MURDERED?
BY ELVIS?
WAS IT STRANGULATION?
>> YES.
YES.
>> I THINK THAT IN -- COULD
YOU SPEAK THEN GOING TO THIS
ISSUE ABOUT THE JUDGE DID
FIND THE MITIGATION OF HOW
DEDESCRIBE THE RELATIONSHIP
BETWEEN THE BROTHER, AND
DAVID, AND WAS THAT
ADEQUATELY DEVELOPED, I
GUESS, THAT LEADS ON THE
FIRST POINT, WAS THERE SOME
EVERY DAY EXCLUDED THAT
COULD HAVE GONE TO THIS
RELATIONSHIP THAT MAY HAVE
CAUSED TO IT BE GIVEN
GREATER WEIGHT, BECAUSE
ALTHOUGH IT IS UNUSUAL THAT
YOU HAVE GOT A 20-YEAR-OLD
AND A 16-YEAR-OLD IT DOES
SOUND LIKE THERE'S, SOME
KIND OF POWER IN BALANCE
GOING ON IT ALSO SOUNDS LIKE
THE JUDGE -- ACKNOWLEDGED
IT, FOUND AND WEIGHED IT SO
-- COULD YOU SPEAK TO THAT
RELATIONSHIP!!$$!!!!!!!!!!!!!!!!!!!!!!
RELATIONSHIP.
>> IN HIS SENTENCING ORDER,
WHICH AND THE PLACE WHERE HE
DISCUSSED MITIGATION IS 47
TO -- 1247 TO 1248 HE FOUND
AS FAR AS THE MENTAL HEALTH
MITIGATION AND HE SUMMARIZED
DR. MING'S TESTIMONY DR.
MING SAID THERE IS NO
PERSONALITY DISORDER THERE
IS NO REAL EVERY DAY THAT HE
WAS ELVIS WAS DAVID WAS
AFRAID OF ELVIS, THAT THERE
WAS DOMINANT -- WHAT THERE
IS IS THIS PATH LOGICALLY
DEPENDENT RELATIONSHIP WHERE
DAVID FEELS AS THOUGH ELVIS
IS ALL HE HAS.
>> SO IN OTHER WORDS, IF THE
JUDGE DID FIND THAT THAT
EXIST!!$$!!!!!!!!
EXISTED.
>> YES.
>> AND WEIGHED IT.
>> YES AND THAT WOULD BE AT
1248!!$$!!!!!!
1248.
HE ALSO FOUND THAT HE WAS
BIRDIE GRANDMOTHER IN
POVERTY LEFT BY HIS MOTHER
AFTER HE WAS BORN HE HAD NO
ROLE MODEL, BECAUSE HE NEVER
KNEW HIS FATHER, HE WAS PATH
LOGICALLY DEPENDENT ELVIS
AND HE WERE PATH LOGICALLY
DEPENDENT ON EACH OTHER THAT
IS ALL THEY HAD GROWING UP.
THAT -- $$DAVID'S AGE OF 20
WAS CONSIDERED.
THAT HE WAS GENTLE A TEAM
PLAYER MODEL INMATE, CLOSE
TO HIS BROTHER, HAD BEEN
KICKED OUT OF HIS HOUSE BY
THE MOTHER WHO ALSO WHEN
THEY WERE EVICTED IN
TALLAHASSEE DID NOT COME
HELP THEM, HOWEVER SHE DID
SEND THEM A BUS TICKET TO
ORLANDO.
>> YOU PASSED BY THE ONE
ABOUT HIS AGE WAS
CONSIDERED.
>> YES.
>> BUT THE JUDGE SAYS HE IS
CONSIDERING IT WITH OTHER
THINGS BUT DOESN'T EVER
REALLY SAY, HOW THE AGE
PLAYED INTO THESE OTHER
THINGS, IT IS AM I MISSING
SOMETHING IN THIS ORDER
ABOUT THIS AGE OF DAVIS.
>> NO.
AND -- ONE OF THE
COMPLICATIONS OF THIS CASE,
WAS THAT THE DEFENSE COUNSEL
AND THE DEFENDANT DID NOT
WANT THE STATUTORY
MITIGATORS BROKEN OUT THEY
WANTED EVERYTHING CONSIDERED
AS A LUMP.
AND SO THE JUDGE WENT IN HIS
ORDER HE WENT AHEAD ANDREAS!!$$!!!!!!!!!!!!
ANDREASED EACH OF THE ISSUES
AND --
>> WHAT I SAID -- I WILL
QUOTE IT FROM RECORD.
#,,
ON PAGE 1245 TO 1246, ALL HE
SAID ABOUT THE AGE WAS THAT
THE DEFENDANT WAS 20 YEARS
OF AGE, THE COURT HAS
WEIGHED HIS RELATIVE YOUTH
TOGETHER WITH OTHER FACTORS.
AND THEN HE AT THE END HE
PUT THEM ALL TOGETHER, AS
DEFENSE COUNSEL ASKED SAID I
GIVE THESE MITIGATORS SEERS
-- SERIOUS WEIGHT THE ONES
HAVE A WERE ESTABLISHED
HOWEVER, THE CIRCUMSTANCES
AND THE AGGRAVATING FACTORS
CLEARLY OUTWEIGH ALL THE
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION.
>> LET ME ON THAT, JUST
FOLLOWING UP ON WHAT THE
JUDGE DID SAY, HE FOUND
SUBSTANTIAL EVIDENCE TO
SUPPORT THESE NONSTATUTORY
MITIGATING CIRCUMSTANCES.
HE SAYS SINCE THESE
CIRCUMSTANCES PRIMARY MATTER
UPON WHICH THE DEFENDS HAS
RESTEDED IT'S ARGUMENT FOR
MITIGATION THE COURT HAS
WEIGHED THEM CAREFULLY GIVEN
SERIOUS WEIGHT THEN GOES THE
COURT FINDS HOWEVER THAT THE
CIRCUMSTANCES ARE PRIMARILY
DESCRIPTIVE!!$$!!!!!!!!!!!!!!!!!!!!
DESCRIPTIVE, AND DO LITTLE
TO COUNTER BALANCE EGREGIOUS
NATURED OF THE ACTS WHICH
CONSTITUTE THE CRIMES, WELL,
IN EVERY ADMINISTERED --
MURDER, EGREGIOUS CRIMES, I
GUESS, I'M SOMEWHAT
MYSTIFIED BY WHAT THE
STATEMENT MEANS AND HOW THAT
WENT INTO WEIGHING THAT THE
CIRCUMSTANCES ARE PRIMARILY
DESCRIPTIVE!!$$!!!!!!!!!!!!!!!!!!!!
DESCRIPTIVE.
THAT ISES WHAT MITIGATION IS
IT IS DESCRIPTIVE OF WHAT
THE CIRCUMSTANCES ARE.
SO WHAT ARE YOU WHEN DO YOU
MAKE OF THAT OBVIOUSLY YOU
HAVE TO DEFEND WHAT THE
JUDGE IS DOING, BUT YOU
KNOW,THIS IS SOME PRETTY
DIFFERENT TYPE OF MITIGATION
THAN WE SEE IN A LOT OF THE
THESE CASES THAT IS THE
POSSIBILITY THAT THERE
REALLY WAS HIS PATHOLOGIC
RELATIONSHIP WITH THE YOUNG!!$$!!!!!!!!
YOUNGER BROTHER BEING A
DOMINANT FORCE, AND THAT BUT
FOR THE YOUNGER $$BROTHER'S
INFLUENCE, IYMAN 24R THAT
WAS THEIR ARGUMENT THAT IS
WHAT THEY PUT ON EVERY DAY
TO SHOW THESE MURDERS
WOULDN'T HAVE OCCURRED AND
THAT SO SIGNIFICANT
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION, BUT I DON'T --
DOES HE DOWN PLAY IT BY
SAYING THEY ARE PRIMELY
DESCRIPTIVE!!$$!!!!!!!!!!!!!!!!!!!!
DESCRIPTIVE?
CAN YOU IS THAT A 2ER78 OF
ART THAT I'M MISSING?
AND -- MITIGATION, THAT IF
SOMETHING IS PRIMARILY
DESCRIPTIVE THAT YOU DON'T
GIVE IT SERIOUS CONSIDER!!$$!!!!!!!!!!!!!!
CONSIDERATION?
>> FIRST OF ALL DR. MING
TESTIFIED THERE WAS A PATH
LOGICALLY DEPENDENT
RELATIONSHIP, AND THEN WHEN
HE WAS ASKED TO ELUCIDATE ON
HIS OPINION HE SAID IT JUST
MEANS HE LOVED HIS BROTHER
HE WAS VERY CLOSE TO HIS
BROTHER, NEVER SAID ELVIS
DOMINATED HIM.
DR. MING SAID THEY ARE ALL
EACH OTHER HAS, THAT IS WHAT
-- ADDICTED TO EACH OTHER IN
OTHER WORDS, BUT THE JUDGE.
>> THE JUDGE THIS IS THE
SAME JUDGE I'M SORRY IT IS
JUDGE ADAMS I SAID HE MADE
INARTFULLY STATE THINGS, BUT
HE -- WHAT HE IS SAYING HERE
IS HE HAS CONSIDERED AND
FOUND THE MITIGATING
CIRCUMSTANCES AND WEIGHED
THEM AGAINST THE AGGRAVATING
CIRCUMSTANCES.
AND IN THE NEXT PARAGRAPH,
YOU CAN -- YOU CAN SEE HE
SAYS HE HAS CAREFULLY
WEIGHED AND CONSIDERED EACH!!$$!!!!!!
EACHED A -- AGGRAVATING
CIRCUMSTANCES AND MITIGATING
CIRCUMSTANCE, AND SO AND --
>> AND NONSTATUTORY
MITIGATING CIRCUMSTANCE.
GO BAG BACK TO THIS ISSUE OF
THE AGE, WAS THAT YOU WILL
WAS PRESENTED BY THE AGE WAS
THAT IT WAS HE WAS 20
ANYTHING ABOUT WHETHER --
WEATHER HE WAS ACTUALLY
FUNCTIONING MORE LIKE A
ADOLESCENT!!$$!!!!!!!!!!!!!!!!!!
ADOLESCENT, ANYTHING ON
THAT.
>> NO MA'AM.
TO THE CONTRARY DR. MING$$!!SAID
HE HAD AVERAGE GINS WAS
FUNCTIONING -- INTELLIGENCE,
FUNCTIONING VERY WELL HAD NO
MENTAL DISORDERS HE HAD NO
PERSONALITY DISORDERS, NO
MEPTDAL HEALTH ISSUES -- AND
THE ONLY THING WAS BECAUSE
OF THE HISTORY OF THE
CHILDREN, GROWING UP WITH
THEIR GRANDMOTHER AND THEN
GOING THROUGH LIFE TOGETHER,
HE AND THE BROTHER WERE VERY
CLOSE.
THE TRIAL JUDGE FOUND THAT
THAT THEY WERE VERY CLOSE.
>> AS FAR AS THE -- THE
FIRST ISSUE, AND I -- YOUR
HONOR HAS ASKED THE QUESTION
-- ABOUT HITCHCOCK, AND
ABOUT HAS HE EVER THE COURT
EVER SAID THAT THE DEFENDANT
CAN JUST PRESAINT THE
HEARSAY AND THE STATE HAS NO
OPPORTUNITY, ON PAGE 46 OF
MY ANSWER BRIEF, I CITE THE
HITCHCOCK AND THE QUOTE FROM
BLACKWOOD WHICH AND I ALSO
QUOTE THAT 91141 THAT
HEARSAY WE ARE DEALING WITH
EVIDENTIARY RULES, 92114
1IGS EVIDENTIARY RULE, WHICH
ALLOWS HEARSAY IN THE 3E7B89
PHASE IF THE OTHER PARTY HAS
AN OPPORTUNITY -- IT.
>> DOESN'T SAY THAT IT SAYS
PROVIDES THE DEFENDANT IS
ACCORD!!$$!!!!!!!!!!
ACCORDED A FAIR OPPORTUNITY
TO REBUT ANY HEARSAY
STATEMENT.
>> YES AND THEN IN MY NEXT
PARAGRAPH!!$$!!!!!!!!!!!!!!!!
PARAGRAPH, THIS COURT HAS
DEALT WITH THE ISSUE AND
HITCHCOCK AND BLOCKWOOD THE
SAME ISSUE THEY ARE ARGUING
THAT WELL THE DEFENDANT GETS
TO PRESENT ALL THE HEARSAY
AND THE STATE DOESN'T.
AND THEY SAID NO.
THE HEARSAY RULE APPLIES TO
BOTH PARTIES IT IS AN
EVIDENTIARY RULE THAT IS ON
PAGE 46 --
>> HOW DO YOU RESOLVE THE
SITUATION HERE WHERE THE
DEFENDANT IS ADVOCATING MORE
LIBERALIZED RULE WITH
REFERENCE TO THE ADMISSION
OF EVERY DAY DURING THE
3E7B9 FACE WITH REFERENCE TO
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION?
AND THIS $$COURT'S RULING IN A
NUMBER OF CASES, THAT THE
STATE IS ENTITLED TO PRESENT
THE TESTIMONY OF A VICTIM,
OF A PRIOR VIOLENT FELON?
THROUGH THE HEARSAY
TESTIMONY OF A POLICE
OFFICER?
>> HOW DOES THAT HOW DO
THOSE THINGS SQUARE?
>> JUST AT THE INSOCIETY I O
O I THINK THE THEY ARE DOR
ROGEVERS CASE YOU SAID THAT
WE -- THEODORE ROGERS SAYS
YOU SAID THE STATE OF THE
LAW IS THAT WE WOULD BE
PRESENTING THE VICTIMS
TESTIMONY AND THE POLICE
OFFICER WOULD NOT BE
TESTIFYING AS TO HEARSAY.
SO --
>> BUT THAT IS BECAUSE OF
CRAWFORD, 6TH AMEND RIGHT OF
THE DEFENDANTS BUT GOING
BACK TO JUSTICE ANSTEAD,
BEFORE CRAWFORD AND CRAWFORD
WOULDN'T AFLY WHAT THE
DEFENDANT IS TRYING TO PUT
IN.
HOW IS IT THAT AGAIN WE
ALLOWED ALL SORTS OF HEARSAY
IN SUCH AS POLICE $$OFFICER'S
TESTIMONY THAT WERE VICTIMS
SAID --
>> WE HAVE A LONG LINE OF
CASES!!$$!!!!!!!!
CASES, THAT --
>> FROM THE ROADS CASE.
>> BEFORE WE GET INTO THE
CRAWFORD ISSUE, WE HAVE A
LONG LINE OF CASES, WHERE
THE -- STATE WAS PERMITTED
IN THIS COURT HAS PROVED THE
TESTIMONY OF A POLICE
OFFICER IN WHO INVESTIGATED
THE PREVIOUS CRIME, WAS
ALLOWED ON BEHALF OF THE
STATE TO TESTIFY TO
STATEMENTS MADE BY THE
VICTIM OF THAT PRIOR VIOLENT
FELONY!!$$!!!!!!!!!!
FELONY.
LET'S ASSUME THAT THAT IS
ALL WE HAVE.
IS ARE THOSE CASES THAT THIS
COURT HAS APPROVED THAT?
HOW DOES THAT SQUARE WITH
NOT ALLOWING, THE DEFENDANT
TO PRESENT SIMILAR HEARSAY
STATEMENTS.
>> IT IS ALWAYS WITH THE
CAVEAT OF 9211411E, THAT IF
THE OTHER PARTY HAS THE
ABILITY TO REBUT IT.
AND THE POLICE OFFICER IS
SUBJECT TO CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION, AND THE
STATEMENT OF THE VICTIM, IS
SUBJECT TO CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION -- SHOO
SIMILARLY THE MITIGATION
EXPERT WILL BE SUBJECT TO
CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION, DURING
THE COURSE OF HER TESTIMONY.
I'M I DON'T THINK THAT
REALLY ANSWERS THE QUESTION
HERE.
>> WELL, WHAT THEY ARE DOING
IS THAT A MITIGATION
SPECIALIST!!$$!!!!!!!!!!!!!!!!!!
SPECIALIST, IS GOES OUT AND
COLLECTION ALL THIS
INFORMATION BUT THEN TO
ALLOW HER TO COME IN AND
JUST SAY WHAT EVERYBODY SAID
AND GIVE HER OPINION --
>> I'M TRYING TO VERY
NARROWLY FOCUS ON THIS $$
COURT'S APPROVAL OF POLICE
OFFICERS TAKING THE STAND
SAYING I WAS THE
INVESTIGATING OFFICER, AND
IN A PREVIOUS VIOLENT FELONY!!$$!!!!!!!!!!
FELONY, THAT SEVERAL YEARS
BEFORE THIS DEFENDANT WAS
CONVICTED OF ARMED ROBBERY,
AND AGGRAVATED BATTERY, AND
I INTERVIEWED THE
COMPLAINING WITNESS AND HE
SAID YOU KNOW, THAT THE
DEFENDANT BEAT ME UP WITH
THE GUN, AND BLOODIED ME UP,
AND I WAS OUT OF WORK FOR A
MONTH, AND WHATEVER, AND
KIND OF THING.
AND THIS COURT HAS APPROVED
THE ADMISSION OF THOSE
HEARSAY STATEMENTS THROUGH
THE TESTIMONY OF A POLICE
OFFICER.
TELL ME HOW YOU DISTINGUISH
THOSE CASES, FROM WHAT THE
DEFENDANT IS PROFFERING
HERE?
>> AND THE POLICE OFFICER
ISSUED THAT EVOLVES FROM
ROADS, ROADS WAS THE FIRST
CASE THAT THIS COURT SAID WE
DON'T WANT THE VICTIMS IN
THERE, IF THERE IS A BETTER
SOURCE WHO HAS PERSONAL
KNOWLEDGE OF THIS, WE WILL
NOT PUT THE VICTIMS THROUGH
THAT, AND HE CAN TESTIFY TO
THAT,!!$$!!!!!!!!
THAT,.
>> NOW YOU ARE REALLY GIVING
A GOOD REASON, WHY THE
DEFENDANT YOU KNOW REALLY
SHOULDN'T OBJECT, AND SHOULD
SAY, WELL, BECAUSE THE STATE
HAS THE RIGHT TO BRING THE
VICTIM, THAT IS NOT
DISTINGUISHING, ADMITTING
THAT THOSE HEARSAY
STATEMENTS OF THE POLICE
SEARCHES -- OFFICERS THAT
ISES WHAT I'M LOOKING FOR ON
A -- INTELLECTUALLY HONEST
BASIS!!$$!!!!!!!!
BASIS, HOW DO YOU WE
DISTINGUISH OUR APPROVAL OF
THE STATE USING THAT HEARSAY
FROM WHAT THE DEFENDANT IS
ASKING TO DO HERE?
>> WELL, AND THERE ARE CASES
WHERE THIS COURT HAS NOT
APPROVED THAT.
>> CAN'T -- CAN YOU
DISTINGUISH -- OUR APPROVAL
OF THOSE SITUATIONS?
FROM WHAT THE DEFENDANT IS
ASKING HERE?
>> I WOULD HAVE -- THEY
DIDN'T RAISE THAT.
AND THEY -- THAT WAS NOT AN
ISSUE, OR AN ANALOGY --
>> ARE YOU TELLING ME YOU
CAN'T DISTINGUISH OR YOU
CAN'T.
>> I'M TELLING YOU I CAN
DISTINGUISH IT.
>> YOU CAN.
>> YES.
>> TELL ME HOW DO YOU
DISTINGUISH.
>> IF YOU LOOK AT THOSE
CASES THOSE CASES MOST
ORDINARILY WENT TO TRIAL,
AND VICTIM WAS SUBJECT TO
CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION,
>> AND NOW I'M HAVING
DIFFICULTY.
YOU I MEAN THOSE PRIOR
VIOLENT FELONIES WENT TO
TRIAL.
>> MOST OF THEM WHERE THAT
EXCEPTION IS CARVED OUT.
>> WHAT DOES THAT HAVE TO DO
WITH -- WHETHER OR NOT THE
HEARSAY STATEMENTS ARE
ADMISSIBLE IN THE SUBSEQUENT
PROCEEDINGS SEVERAL YEARS
LATER?
.
>> WELL, AND ALSO IF YOU
LOOK AT THE CASES THE POLICE
OFFICER WHO TESTIFIES WAS
YOOUSHL THE ONE WHO RESPOND!!$$!!!!!!!!!!!!
RESPONDED TO THE SCENE, AND
OBSERVED SOME OF THE THINGS
AND HAD PERSONAL KNOWLEDGE.
AND I KNOW THAT THERE ARE
TWO INSTANCES WHERE YOU SAID!!$$!!!!!!
SAID --
>> YOU ARE NOT REALLY
ACCEPTING MY PREDICATE YOU
ARE SAYING THEN THAT MAYBE
IT WASN'T HEARSAY AT ALL.
THAT THERE WAS YOU KNOW -- I
AM -- EVEN IF WE IF YOU
DON'T ADMIT THOSE CASES
EXIST, LET'S TAKE IT AS
HYPOTHETICAL.
THAT WE HAVE APPROVED THE
POLICE OFFICERS BEING ABLE
TO TESTIFY TO HEARSAY
STATEMENTS BY THE VICTIM OF
A PRIOR VIOLENT FELONY.
AND YOUR VIEW WERE THOSE
PROPER HOLDINGS?
.
>> YES.
>> AND HOW WHAT -- THEORY
WOULD THOSE COME UNDER?
ARE THERE LESS RULES OF
STRICT APPLICATION OF THE
RULES OF EVERY DAY?
TO THE 3E7B9 PHASE IS THAT
THE -- THEORY.
>> NO.
BECAUSE THAT OFFICER AND OF
YOU DISPROVED -- THE WIFE
THAT TESTIFIED ABOUT HER $$
HUSBAND'S DEATH, BUT THE SHE
WASN'T THERE.
YOU DISPROVED THAT AS
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY.
THERE IS ON THE INSTANCES
THAT THE DEFENSE CITE WHERE
THIS COURT HAS DISPROVED
THEM.
BUT THERE ARE OTHER
INSTANCES WHERE OF YOU
APPROVE FIND OFFICERS
TESTIFYING WHERE THEY HAVE
PERSONAL KNOWLEDGE AND THEY
CAN TESTIFY TO THE HEARSAY
TESTIMONY OF THE VICTIM.
AND THAT --
>> YOUR QUESTION ABOUT THE
-- EVERY DAY THAT THEY CLAIM
SHOULD HAVE BEEN ADMITTED --
-- SEEMS TO ME FROM READING
IT THAT A LOT OF THAT WAS AD
MYTHED THROUGH OTHER WNZ.
>> YES, SIR IT WAS AND THEY
MAD HAD NINE WITNESSES
TESTIFY THE AUNT TESTIMONY
HE HAD GROW UP WITH UNTIL 7
OR # MOTHER TESTIFIED THEIR
MOTHER TESTIFIED THEY HAD
NINE PENALTY PHASE WITNESSES
THAT WAS OBJECTIONS WEREN'T
ALWAYS TO HEARSAY, BECAUSE
THE STATE DIDN'T HAVE AN
OPPORTUNITY TO REBUT.
THE MAJORITY OF THE
OBJECTIONS WERE TO RELEVANCE!!$$!!!!!!!!!!!!!!!!
RELEVANCE.
>> KERNEL THAT FALLS WITHIN
THE STATUTE WHERE STATUTE
SAYS ALL REVANT EVERY DAY
MAY BE -- OF EFFORT MAY BE
ADMITTED EVEN IF HEARSAY
COULD BE ADMITTED UNDER STAT
WOULDN'T BE AS --ED A
MISSIBLE
>> YES, SIR THE FIRST THING
THAT THEY COMPLAIN ABOUT IS
THAT THE MITIGATION
SPECIALIST VISITED THE
HOUSE, AND THEY SAID, WHAT
DOES THE HOUSE LOOK LIKE?
AND THE OBJECTION WAS
RELEVANT BECAUSE DAVID
HADN'T LIVED IN THAT HOUSE
FOR 5 -- 15 OR 16 YEARS.
>> WOULD YOU AGREE THAT THE
THAT THOSE POLICE OFFICER
CASES THAT JUSTICE ANSTEAD
WAS REFERRING TO -- AND
OTHER CASES, IN WHICH WE
HAVE ALLOWED THERE TO BE
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY, I REMEMBER THERE
WAS THE CASE OUT IN
PENSACOLA, IN WHICH THERE
WAS A WITNESS WHO WAS NOT
UNDER SUBPOENA THAT WE
ALLOWED THERE TO BE PRIOR
TESTIMONY.
BUT THE VALUATION AS I
RECALL THOSE CASES, HAS
ALWAYS BEEN ON THE ISSUE OF
WHETHER THERE WAS A FAIR
OPPORTUNITY TO REBUT.
IS THAT WHAT IT COMES DOWN
TO.
>> YES, SIR.
>> CAN YOU RECALL YOU WILL
WHETHER WE HAVE HELD THAT
THE FAIR OPPORTUNITY TO
REBUT IS A MATTER WITHIN THE
-- THE DISCRETION OF THE
TRIAL JUDGE OR IS IT
SOMETHING THAT WE DO DE NOVO!!$$!!!!!!
NOVO.
>> NO, SIR IT WOULD ALWAYS
BE WITHIN THE DISCRETION OF
THE TRIAL JUDGE BECAUSE THIS
IS AN EVER DENGRY RULING,
AND -- EVIDENTIARY RULING
THIS JUDGE RULED HE HAD
SEVERAL BASES FOR MANY
RULINGS I WOULD ALSO LIKE TO
POINT OUT IT ALL CAME IN ANY
WAY THE THINGS THAT THEY ARE
COMPLAINING ABOUT THAT THERE
WAS A MENTAL HEALTH EXPERT
AND HE TESTIFIED THAT FOR
TWO PAGES, JUST AS A
SOLILOQUY ON DAVID$$'S QUACK
GROUND THE AUNT TWO HE
TEACHERS TWO COACHES.
>> WELL THATGO WOULD GO TO
HARMLESS ERROR.
>> YES, SIR -- JUST ON THE
ONE THAT.
>> JUST ON ONE THAT DOES
CONCERN ME, I DO, AGAIN,
SHARE THE FRUSTRATION THAT
WE ALLUDED TO IN THE FIRST
PART OF THIS, THAT IS THE
BRIEF IS JUST LUMPS
EVERYTHING TOGETHER, AND ONE
THAT I WAS CONCERNED ABOUT
WERE THE REPORTS OF THE
PHYSICAL ABUSE OF DAVID AS A
CHILD.
DID THAT COME IN THROUGH THE
MENTAL HEALTH EXPERT?
>> NO.
BECAUSE THERE -- THERE WAS
NO PHYSICAL -- FISCAL ABUSE
IF YOU LOOK IN THE PSI DAVID
HIMSELF DEEPS HE DENIES ANY
PHYSICAL ABUSE THE MOTHER
TESTIFIED THE UP AT
TESTIFIED THAT IS WHO HE
LIVED WITH, AND DR. MING
STESTIFIED --
>> SO THAT -- TESTIFIED SO
THAT SO DURING THE PENALTY
FACE TESTIMONY MEDICAL
SPECIALIST NORMAN TESTIFIED
SHE DID NOT DISCOVER ANY
POLICE REPORTS OF DOMESTIC
VIOLENCE!!$$!!!!!!!!!!!!!!
VIOLENCE.
WHEN DEFENSE COUNSEL TRIED
TO QUESTION NORMAN ABOUT ANY
OTHER INFORMATION SHEED MY
-- MIGHT HAVE OBTAINED ABOUT
PHYSICAL ABUSE TO DAVID AS A
CHILD THE STATE OBJECTED ON
THE BASES OF HEARSAY.
DEFENSE THEN PROPERED
TESTIMONY THAT DAVID AND
ELVIS HAD TOLD HER ABOUT
PHYSICAL ABUSE IN THE FORM
OF BEATINGS, WITH CORDS AND
BELTS!!$$!!!!!!!!
BELTS.
NOW LET'S JUST ASSUME -- I
-- THE JUDGE DIDN'T --
SUSTAIN THE OBJECTION
BECAUSE THERE -- OTHER
WITNESSES DIDN'T TESTIFY THE
JUDGE SUSTAINED IT ON THE
BASIS OF HAERS MY QUESTION
WOULD BE HEARSAY, MY
QUESTION AS WE HAVE SEEN
MANY TIMES A MENTAL HEALTH
EXPERT, TESTIFIED --
TESTIFIES ON OPINIONS BASED
ON SELF RO-- SELF-REPORT OF
FISCAL ABUSE OF COURSE AS IT
GOES TO THE WEIGHT COME ON
THERE IS NO -- NOBODY ELSE
HAS SEEN IT, IT IS DENIED
HERE.
EVALUATED I'M CONCERNED
ABOUT THAT JUST BEING
EXCLUDEDED ON THE BASISIS OF
HEARSAY!!$$!!!!!!!!!!!!
HEARSAY.
ESPECIALLY AGAIN WHEN YOU
SAY FAIR OPPORTUNITY TO
REBUT, THEY WERE ABLE TO
SHOW THAT THERE WAS YOU KNOW
WHAT YOU ARE SAYING, HOW IS
THAT A PROPER EVIDENTIARY
RULING WHEN WE ARE TRYING TO
ALLOY THE YOU KNOW IN THE
GREATEST LATITUDE, FOR A
DEFENDANT TO BE ABLE TO PUT
ON EVIDENCE THAT MAYBE
HARMLESS BECAUSE SHE WOULD
SAY IT COULDN'T HAVE BEEN
GIVEN ANY WEIGHT SHOULD SHE
HAD TESTIFIED BECAUSE THEY
DIDN'T REPORT THIS TO THE
MENTAL HEALTH EXPERT.
PRETTY GOOD ARGUMENT.
BUT AS FAR AS A RULE OF LAW,
I'M CONCERNED ABOUT THIS
BEING EXCLUDED ON THE BASIS
OF HEARSAY.
>> AND THIS IS A MITIGATION
SPECIALIST WHO IS RELATING A
STATEMENT MADE BY A
DEFENDANT AND CODEFENDANT
THAT WE HAVE NO ACCESS TO
WHATSOEVER.
>> BUT YOU UNDERSTAND THEN
WE HAVE COUNTLESS CASES
WHERE MENTAL HEALTH EXPERTS
TESTIFY AND PART OF THE
TESTIMONY IS THAT THEY HAVE
EVALUATED THE DEFENDANT.
>> THAT WAS A LOT OF THE THE
DISCUSSION, BECAUSE AFTER
THIS OBJECTION ON THE BASES
OF HEARSAY, THEY WENT
THROUGH QUALIFY HER AS A
MENTAL -- EXPERT IN
DEFENDANTIG VIOLENCE BECAUSE
SHE HAD WORKED WITH DCF, FOR
15 YEARS THERE WAS NO BASIS
TO QUALIFY HER, BUT DR.
MINGWAS GOING TO TESTIFY SHE
TESTIFIED SHE GAVE ALL OUR
HER INFORMATION TO DR. MING
WHO DID TESTIFY ABOUT IT
THIS!!$$!!!!!!
THIS.
>> SO BECAUSE OF THE NATURE
OF HER SPECIALTY THAT THIS
WOULD BE PARTICULARLY
APPROPRIATE RULING FOR THE
TRIAL COURT TO SUSTAIN THIS
OBJECT!!$$!!!!!!!!!!
OBJECTION.
>> YES.
>> WITH OUR ASSISTANCE, DO
YOU HAVE -- YOU HAVE
EXHAUSTED YOUR TIME THANK
YOU VERY MUCH.
>> I JUST ASK THE COURT TO
AFFIRM THE CONVICTIONS AND
SENTENCE.
>> SHORT REBUTTAL.
>> YES YOUR HONOR JUST TO
CLARIFY A RECORD CITE.
THE STATE QUOTES THAT PAGE
1459 OF THE RECORD, IN
RESPONSE TO JUSTICE PARENTS!!$$!!!!!!!!!!!!$$
PARENTSE'S QUESTION
REGARDING THE $$DEFENDANT'S
CONFESSION SAYING THAT THE
VICTIM CHARLES STILL HAD
LIFE IN HER.
BUT THEY FAILED TO QUOTE THE
NEXT PAGE, WHERE THE
DEFENDANT CLARIFIES AND
MODIFIES THAT PAGE 1460 OF
THE RECORD, QUOTE CHARLES
WASN'T MOVING, IF SHE STILL
HAD LIFE IN HER, NOT LIKE
SHE WASN'T MOVING BUT LOOKED
LIKE SHE HAD LIFE IN ME --
IN HER, STILL.
TO ME SO HIS CONFESSION DOES
INDICATE THAT SHE WAS
UNCONSCIOUS!!$$!!!!!!!!!!!!!!!!!!!!
UNCONSCIOUS.
>> BUT SHE WASN'T I MEAN BUT
DURING THE COURSE OF THIS,
AND WHICH THIS DEFENDANT
PARTICIPATED IN SHE WAS
ALIVE SHE STRUGGLED, SHE WAS
AWARE OF HER INTENDING DEATH!!$$!!!!!!!!
DEATH, AND, SO IF -- SOME
POINT SHE BECAME UNCONSCIOUS
I DON'T SEE HOW THAT TAKES
AWAY FROM THE JUDGE'S
RULING, THAT THERE WAS
SUFFICIENT EVIDENCE TO
SUPPORT HHC.
>> CASES CITEDED IN OUR
BRIEF INDICATED THIS COURT
IN STRANG LOOIGS CASES HAS
CONSIDERED TOTALITY OF THE
CIRCUMSTANCES HAS REJECTED
THIS AS HEINOUS ATROSCHIOUS
AND CRUEL.
ALSO WE SUMMIT IT IS NOT
CUMULATIVE!!$$!!!!!!!!!!!!!!!!!!
CUMULATIVE, THE EVIDENCE
EXCLUDED WAS NOT CUMULATIVE
NO EVIDENCE OF PHYSICAL
ABUSE TO THE DEFENDANT THE
STATE WAS ALLOWED TO ELICIT
TESTIMONY THERE WERE NO
POLICE REPORTS ANY OF A BUS
ON THE DEFENDANT, HOWEVER,
THEY WERE THE DEFENSE WAS
EXCLUDEDED FROM PRESENTING
EVIDENCE THAT NOT ALL
PHYSICAL ABUSE CASES ARE
REPORTED TO THE PS.
-- TO THE POLICE.
THE, TRIAL COURT, IN REGARDS
TO THE DOMINATION OF THE
DEFENDANT INDICATES THAT HE
REJECTS THE STATUTORY
MITIGATION MITIGATING
FACTORS BECAUSE OF OTHER
FACTORS WITHOUT LAEBBRATE$$!!ING
ON THEM.
THE SAME WITH -- HE WEIGHED!!$$!!!!!!!!!!!!
WEIGHED --
>> YOU ARE -- YOU ARE BEYOND
YOUR TIME.
>> WOULD YOU TAKE A MOMENT,
BECAUSE OF YOU HAD MANY
QUESTIONS FROM THE BENCH
WITH REGARD TO WHAT DID NOT
COME INTO EVER DEBS,
EVIDENCE WITH REGARD TO THAT
ISSUE THAT YOU'VE ASSERT
THAT YOU HAD BELIEVE SHOULD
HAVE COME INTO EVIDENCE DID
FOR THE COME IN ANY WAY
BEFORE THE COURT.
>> THERE WAS NO EVIDENCE OF
THE PHYSICAL ABUSE TO THE
DEFENDANT, DID NOT COME IN
AT ALL, THERE WAS NO
EVIDENCE OF ELVIS' VIOLENCE
TO THE CHILD, IN
TALLAHASSEE, WHICH WAS CLOSE
TO THE TIME OF THESE
MURDERS, THE STATE HAS SAID
WELL THIS EVIDENCE ABOUT
ELVIS!!$$!!!!!!!!
ELVIS, THE DEFENDANT BEING
AFRAID OF HIM, WAS FROM THE
YOUTH WHEN THE CHILD WHEN
THEY WERE ONLY LIKE SIX
YEARS OLD, THIS EVIDENCE THE
DEFENSE ARGUMENTED WAS
RELEVANT TO THAT
RELATIONSHIP THEY HAD, WE
SUBMIT TO THE FACT THAT HE
WAS STILL IN FEAR THEY WERE
PRECLUDED FROM THAT, WE
SUBMIT, THAT THE QUALITY AND
WANT OF THE MITIGATING
EVIDENCE SHOULD NOT BE
LIMITED!!$$!!!!!!!!!!!!
LIMITED.
>> YOU ARE GOING INTO KUM
LATTIVE!!$$!!!!!!!!!!!!
LATTIVELY.
>> HOW ABOUT THE PRECISE
THINGS SO THIS COURT
UNDERSTANDS EXACTLY WHAT YOU
ARE SAYING.
>> THE PHYSICAL ABUSE, TO
THE DEFENDANT, THE ABUSE OF
ELVIS STILL HAD WAS STILL
VIOLENT TO CHILDREN, THE
MENTAL HEALTH EXPERT WASN'T
ALLOWED TO TESTIFY THAT THE
OTHER WITNESSES THAT
TESTIFIED, THEIR TESTIMONY
WAS SUPPORTIVE OF HIS DIG!!$$!!!!
DIGNOSIS WOULDN'T CHANGE HIS
DIAGNOSIS ANYWAY, THE STATE
ARGUES THAT THAT WAS COMMENT
ON THE CREDIBILITY OF THE
ONE -- WITNESSES, MENTAL
HEALTH EXPERTS MEDICAL
EXAMINERS, ALL EXPERTS ARE
OFF ASKED WELL --
>> YOU ARE LISTENING PLEASE
BE BRIEF.
KEEP GOING WITH LISTENING --
LISTING!!$$!!!!!!!!!!!!
LISTING.
>> THE -- PSYCHOLOGIST
OPINION WHETHER THE
DEPARTMENT HAD STREET SMARTS
WHAT WOULD CAUSE A PERSON
NOT TO ATTEMPT TO DISGUISE A
STOLEN VEHICLE DEFENSE
ARGUED RELEVANCE TO SHOW HE
IS NOT A HARDENED CRIMINAL
NOT EXPERIENCED, IN THESE
TYPES OF THINGS, AGAIN
RELEVANT TO THE MITIGATING
CIRCUMSTANCE OF LACK OF
SIGNIFICANT HISTORY WE I
APOLOGIZE FOR NOT GOING INTO
MORE DIAL IN MY INITIAL
BRIEF, BUT I FELT THAT THE
RELEVANCE WAS OBVIOUS FROM
THESE, EACH OF THESE THINGS
THAT WERE EXCLUDED IS
RELEVANT TO A MITIGATING
CIRCUMSTANCE.
>> THANK YOU VERY MUCH.
WITH OUR ASSISTANCE OF YOU
USED BEYOND YOUR TIME.
>> BE WE APPRECIATE THE
ARGUMENTS WE'LL TAKE THE
CASE UNDER ADVICEMENT