Neil K. Salazar v. State of Florida

SC06-1381

>> ALL RISE.
HEAR YE HEAR YE HEAR YE, THE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION. ALL THOSE HAVING
BUSINESS BEFORE THIS COURT, DRAW
NEAR AND GIVE ATTENTION AND YE
SHALL BE HEARD. GOD SAVE THE
UNITED STATES, THE GREAT STATE
OF FLORIDA, AND THIS HONORABLE
COURT.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, FLORIDA
SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS,
WELCOME TO THE FLORIDA SUPREME
COURT AND THE ORAL ARGUMENT
CALENDAR FOR MONDAY, APRIL 7th,
BEFORE WE START LET ME TAKE THE
OPPORTUNITY ON BEHALF OF THE
COURT TO WELCOME THE STUDENT
PARALEGAL ASSOCIATION FROM THE
DAYTONA BEACH COLLEGE, AM I
SAYING THAT CORRECTLY, STAND AND
SAY GOOD MORNING TO YOU.
WELCOME, WELCOME TO THE COURT.

THANK YOU FOR BEING HERE.
OKAY, THE FIRST CASE ON OUR
CALENDAR THIS MORNING IS SALAZAR
VERSUS STATE OF FLORIDA.
MR. CALDWELL, READY TO PROCEED.
>> YES, SIR.
MR. CHIEF JUSTICE, MAY IT PLEASE
THE COURT, GARY CALDWELL ON
BEHALF OF NEIL SALAZAR.
I WOULD LIKE TO DISCUSS A FIRST
AND SECOND ISSUE IN MY BRIEF AND
AS TIME PERMITS, THE THIRD AND
THE 5th, WHICH BOTH PERTAIN TO
THE COLD, CALCULATED AND
PREMEDITATED AGGRAVATING
CIRCUMSTANCE.
THE FIRST ISSUE HAS TO DO WITH A
STATEMENT WHICH THE PROSECUTOR
MADE TO THE JURY IN HIS FINE
ARGUMENT.
THE PROSECUTOR SAID TO THE --
WAS TALKING ABOUT THE DEAL THAT
THE STATE HAD MADE WITH THE
CO-DEFENDANT, JULIUS HATCHER,
AND SAID TO THE JURY THAT HE
UNDERSTOOD THAT THE JURY MIGHT

NOT LIKE THE FACT THAT THEY HAD
MADE THE DEAL -- EXCUSE ME --
HAD MADE THIS ARRANGEMENT WITH
HIM BUT IT WAS NECESSARY TO
PREVENT HIM, MEANING THE
DEFENDANT, FROM WALKING OUT.
>> WHAT KIND OF OBJECTION WAS
MADE TO THAT STATEMENT?
>> THE OBJECTION WAS THAT IT WAS
AN IMPROPER ARGUMENT.
THAT IT WAS OUTSIDE OF THE
EVIDENCE.
AND THERE WAS A THIRD GROUND
ALONG THOSE LINES, I'M SORRY, IT
IS SLIPPING MY MIND NOW.
>> AND NOW YOU ARE -- WHAT IS
YOUR ARGUMENT ABOUT THIS?
>> MY ARGUMENT IS THAT THE -- IN
THIS CASE THE JUDGE SUSTAINED
THE OBJECTION AND FOUND THE
ARGUMENT IMPROPER BUT TOOK NO
CORRECTIVE ACTION.
AS A CONSEQUENCE THE STANDARD OF
REVIEW IS THE PARKER STANDARD.
WHICH IS DISCUSSED QUITE A LOT
IN MY INITIAL BRIEF WHICH IS THE

QUESTION AS TO WHETHER THE
STATE'S ARGUMENT TO THE JURY WAS
HARMLESS BEYOND A REASONABLE
DOUBT.
THAT IS, NO REASONABLE JUROR
COULD HAVE BEEN AFFECTED BY THE
PROSECUTOR'S --
>> IN THE INSTANCE ALTHOUGH
THERE WAS AN OBJECTION MADE,
THERE WAS NO REQUEST FOR A
CURATIVE INSTRUCTION.
>> THERE WAS A REQUEST.
>> AND WHY DID THE TRIAL JUDGE
SAY THAT HE WAS NOT GOING TO
GIVE IT, BECAUSE IT WAS GOING TO
DRAW MORE ATTENTION TO IT OR
SOMETHING --
>> YES.
YES.
>> AND WHY ISN'T THAT A PROPER
DETERMINATION BY THE TRIAL
COURT?
IT WAS BASICALLY ONE STATEMENT
MADE IN THE COURSE OF THIS
ARGUMENT AND DO YOU REALLY WANT
TO EMPHASIZE THAT KIND OF

STATEMENT?
>> A COUPLE OF ANSWERS TO THAT.
ONE IS THAT OBVIOUSLY A JUDGE
CAN MAKE THAT ASSESSMENT BUT IF
AN ARGUMENT IS SO BAD THAT IT
CAN'T BE CURED, HOW CAN YOU SAY
THAT IT WAS NOT SO BAD AS TO
HAVE AFFECTED THE JURY.
THAT IS THE FIRST THING.
THE SECOND THING, IN THE PARKER
CASE THERE WAS NO REQUEST AT ALL
FOR A CURATIVE INSTRUCTION.
APPARENTLY.
I MEAN, IT DOESN'T APPEAR
ANYWHERE IN THE OPINION.
IT LOOKS LIKE ALL OF THE DEFENSE
ATTORNEY DID WAS OBJECT AND MOVE
FOR A MISTRIAL AND THE COURT
SAID THE STANDARD IS WHETHER
THERE IS NO REASONABLE
LIKELIHOOD THAT THE ERROR COULD
HAVE AFFECTED THE JURY.
OKAY.
SO NEXT QUESTION OBVIOUSLY WILL
BE, OKAY.
HOW COULD THIS HAVE AFFECTED THE

JURY?
AND I SUBMIT TO YOU THE STATE
HAS NOT MET ITS BURDEN IN THAT
REGARD.
IN THE PARKER CASE, THE COURT
FOUND THAT THE ERROR WAS
HARMLESS BEYOND A REASONABLE
DOUBT BECAUSE THE PROSECUTOR
RETRACTED THE STATEMENT.
IN THAT CASE, SHE, THREE TIMES,
SAID THAT WHAT SHE HAD SAID WAS
INCORRECT.
THEN, SHE CORRECTLY STATED WHAT
THE EVIDENCE WAS.
AND IN FACT THE ACTUAL EVIDENCE
WAS WORSE THAN HOW SHE HAD
REPRESENTED IT.
SO, THAT ALSO DETRACTED FROM THE
HARM.
AND THEN SHE AGAIN RETRACTED THE
STATEMENT, IN THE CASE, THE
STATE'S CASE ESSENTIALLY RELIED
ON THE TESTIMONY OF THESE TWO
MEN, MR. CUMMING AND MR. HATCHER
AND THE ARGUMENT WENT DIRECTLY
TO THE CREDIBILITY OF THESE

WITNESSES.
AND ESPECIALLY MR. HATCHER'S
TESTIMONY.
THESE TWO WITNESSES' TESTIMONY
CONFLICTED ON FIVE OR SIX
IMPORTANT POINTS ABOUT THE
CRIMINAL EPISODE.
ALSO CONFLICTED WITH THE
TESTIMONY OF THE POLICE.
>> I'M HAVING A HARD TIME
UNDERSTANDING HOW THE COMMENT OF
#NAME?
CREDIBILITY OF THE WITNESS.
I MEAN, THE JURY KNOWS A DEAL
WAS MADE.
THE STATE IS NOW SAYING, WAS
THIS IN CLOSING ARGUMENT?
>> YES, MA'AM.
>> THE STATE IS SAYING THAT THAT
WAS ONE OF THE REASONS AND THEY
WERE TRYING TO MITIGATE THE
HARM, THE CREDIBILITY AND HOW
DOES THAT STATEMENT ALONE
FURTHER AFFECT THE CREDIBILITY?
>> WELL, IT DETRACTS ATTENTION
FROM THE WITNESS'S LACK OF

CREDIBILITY.
IT TURNS THE JURY -- IN FINAL
ARGUMENT IT'S MY UNDERSTANDING
WHAT A LAWYER WANTS TO DO IS
GIVE THE JURY A -- MAKE THE JURY
WANT TO RULE IN THE ATTORNEY'S
FAVOR AND GIVE THE JURY A WAY TO
RULE IN THE ATTORNEY'S FAVOR.
HERE, THE PROSECUTOR WAS GIVING
THEM A REASON TO WANTED TO RULE
IN THE ATTORNEY'S FAVOR.
>> AS SOON AS THEY BEGIN AGAIN
THEIR CLOSING ARGUMENT, THE
PROSECUTOR SAYS THE FACT THAT
THE STATE MADE A DEAL WITH THE
MURDERER IS NOT AN ISSUE IN THE
CASE AND NOT SOMETHING YOU
SHOULD BE CONCERNED WITH AND HE
WENT ON.
DIDN'T HE SORT OF, GOING BACK TO
THE IDEA ... DID THE JURY HEAR
THAT THE JUDGE SUSTAINED THE
OBJECTION?
>> NO.
NO.
>> THAT IS THE PROBLEM.

NOT WHETHER THERE WAS A CURATIVE
INSTRUCTION, WHETHER IT WAS MADE
OR NOT, FROM YOUR POINT, THE
FACT THE JURY DOESN'T HEAR THIS
AS AN IMPROPER STATEMENT WHILE
YOU SAY IT SHOULD BE
SUBJECT TO THE HARMLESS ERROR
STANDARD.
>> IN PARKER IT WAS SUSTAINED AT
THE BENCH, THE OBJECTION WAS
SUSTAINED AT THE BENCH AND THE
JUDGE DENIED THE MOTION FOR
MISTRIAL AT THE BENCH AND NO
CURATIVE ACTION IS TAKEN IN
FRONT OF THE JURY AND, THEREFORE
--
>> CURATIVE ACTION COULD HAVE
BEEN THE JURY SHOULD DISREGARD
THAT LAST STATEMENT.
THAT WAS -- WOULD HAVE BEEN
ENOUGH.
>> I DON'T THINK SO.
I MEAN --
>> THAT WASN'T EVEN DONE.
>> THAT WASN'T EVEN DONE.
AND I MEAN, I CERTAINLY WOULD

HAVE ARGUED FOR A STRONGER
CURATIVE INSTRUCTION THAN THAT.
>> I'M JUST STILL HAVING A HARD
TIME, EVEN UNDER THE HARMLESS
ERROR STANDARD AS TO WHAT IS --
YES, IT IS IMPROPER BECAUSE IT'S
NOT BASED ON FACTS AND EVIDENCE
BUT HOW IS IT REALLY -- HOW
WOULD IT AFFECT THE JURY
VERDICT?
>> WELL --
INTO CREDIBILITY.
BUT WHAT ELSE?
>> I MEAN, THAT IS WHAT THE CASE
WAS ALL ABOUT WAS CREDIBILITY.
WAS THE CREDIBILITY OF THESE TWO
WITNESSES.
THE STATE DIDN'T HAVE ANY
PHYSICAL EVIDENCE LINKING THE
DEFENDANT TO THE CRIME.
THEY DIDN'T HAVE ANY STATEMENT
OF THE DEFENDANT CONCERNING THE
CRIME.
ALL THEY HAD WAS TESTIMONY --
>> BUT EVERY TIME THE STATE
MAKES A DEAL WITH ONE PARTY TO

THE CRIME OR THE OTHER, THERE IS
ALWAYS AN ISSUE AS TO, WELL, THE
STATE HAS TO SAY THIS IS WHY WE
MADE THE DEAL WITH THIS PERSON
RATHER THAN THAT PERSON, I MEAN,
THAT IS JUST -- THE NATURE OF
WHAT THEY ARE GOING TO EXPLAIN.
IT STILL DOESN'T -- THE JURY
STILL KNOWS THAT THAT PERSON --
TESTIFYING TO THE MOTIVE TO LIE
BECAUSE THE DEAL -- THEY MADE A
DEAL WITH HIM SO I'M STILL NOT
#NAME?
AFFECTS TOR BOLSTERS THE
CREDIBILITY BY HAVING OFFERED
THAT REASON.
I'M NOT -- IS THERE ANY OTHER
ARGUMENT YOU HAVE AS TO WHY THIS
WAS --
>> WELL, IT'S NOT SO MUCH
BOLSTERING THE CREDIBILITY AS
TURNING THE CREDIBILITY --
TURNING THE ISSUE AWAY FROM
CREDIBILITY BY TELLING THE JURY,
IF YOU DON'T CONVICT THIS
DEFENDANT, CUMMING WILL BE

KILLED.
THAT IS WHAT THE LAST STATEMENT
THE PROSECUTOR MADE, WAS SAYING,
AT THE TIME OF THE JURY, WAS,
SOMEBODY IS GOING TO COME BACK
AND MAKE AN ATTEMPT ON THE LIFE
OF CUMMING, OR TRY TO FINISH HIM
OFF.
NOW THAT IS A VERY SERIOUS THING
TO PUT ON THE MINDS OF THE JURY,
TO SAY TO THEM, THERE IS A
POSSIBILITY, IF YOU DON'T
CONVICT THE DEFENDANT, THAT THIS
SURVIVING VICTIM IS GOING TO BE
MURDERED.
AND THE PROSECUTOR SAID TO THE
JURY, WAS SAYING TO THE JURY,
THAT'S THE REASON WE DID THAT.
NOW, HE TOLD THE JURY AFTERWARD,
YOU MENTIONED WHAT HE SAID
AFTERWARD AND HE SAID TO THE
JURY AFTERWARD, WAS, WHY WE DID
THE DEAL IS NOT A CONCERN -- NOT
AN ISSUE IN THIS CASE BUT HE DID
NOT RETRACT THE STATEMENT THAT
THERE COULD BE ANOTHER ATTEMPTS

ON THE LIFE OF RONZE CUMMING.
THAT WAS LEFT HANGING AND
DISCUSSED IN POINT TWO THE
PROSECUTION DEMONSTRATED TO THE
JURY THAT IT HAD A BOOK OF
ADDITIONAL EVIDENCE IN THE CASE
SO THAT THE JURORS COULD THINK,
WELL, OKAY.
THE STATE MUST KNOW THAT THERE
IS SOME FURTHER MURDER PLOT
AFOOT.
TO KILL RONZE CUMMING, OKAY.
THAT WAS THE FIRST THING THE
PROSECUTOR SAID WHEN THEY COME
#NAME?
CONFERENCE AT THE BENCH, WHILE
THE STATE -- JURORS ARE LEFT
CONTEMPLATING THIS STATEMENT,
THERE -- THERE COULD BE ANOTHER
ATTEMPT ON THE LIFE OF RONZE
CUMMING, WHAT HE SAYS TO THEM IS
WHY WE DID THIS IS NOT A
CONSIDERATION -- NO, THE FACT
THAT THERE WAS A DEAL IS NOT A
CONSIDERATION.
WHICH IS NOT TRUE.

IT IS A CONSIDERATION.
IT IS A VERY IMPORTANT
CONSIDERATION, A MATTER OF
CONSTITUTIONAL LAW.
THE JURORS MUST BE TOLD ABOUT AN
INTEREST THE WITNESS HAS, IN
TESTIFYING.
THEN HE TOLD THE JURY THAT IT IS
A CONSIDERATION ONLY IF IT
TOTALLY DESTROYS HIS
CREDIBILITY, WHICH IS ALSO NOT
TRUE.
WHAT I'M SAYING IS THIS IS NOT A
RETRACTION AS THERE WAS IN
PARKER.
HE'S NOT SAYING WHAT I SAID IS
NOT TRUE.
SO --
>> ANY OBJECTION TO THOSE
STATEMENTS?
>> NO.
NO.
I MEAN, THEY HAD... NO.
THERE WAS NO OBJECTION TO THOSE
STATEMENT.
WHAT I'M SAYING IS THAT IT

WASN'T A RETRACTION, UNDER
PARKER, THE PROSECUTOR GOT UP
AND SAID, I WAS WRONG, WHAT I
SAID, IF THAT'S WHAT I SAID I
WAS WRONG.
WHAT I SAID IS CONTRARY TO THE
EVIDENCE, HERE'S WHAT THE
EVIDENCE IS.
THE PROSECUTOR DIDN'T DO THAT
HERE.
THERE WASN'T A RETRACTION.
AS THERE WAS IN THE PARKER CASE.
>> DID THE JURY KNOW THIS JUDGE
HAD SUSTAINED THE OBJECTION.
>> NO.
NO.
NO.
THE JAR DIDN'T KNOW THAT, SO FAR
AS THEY KNEW IT WAS A PROPER
ARGUMENT.
>> INEVITABLY WHEN WE DISCUSS
HARMLESS ERROR WE LOOK AT THE
ERROR IN THE CASE, CAN YOU GIVE
US A THUMBNAIL SKETCH OF THE
EVIDENCE HERE, WHERE YOU WOULD
ATTEMPT TO CONVINCE US THAT THIS

WAS REALIZING, OF COURSE, THE
STATE'S BURDEN.
>> RIGHT.
>> BUT, DEMONSTRATE TO US WITH A
THUMBNAIL SKETCH, IF YOU CAN,
WHY THIS WOULD NOT BE HARMLESS
IN THE FACE OF A VERY STRONG
EVIDENCE PRESENTED BY THE STATE.
>> OKAY.
>> WHAT WAS THE DEFENSE
APPROACH, FIRST OF ALL,?
>> THE DEFENSE CLAIM WAS THAT
THE STATE'S TWO MAIN WITNESSES
WERE NOT CREDIBLE.
AND THE -- OBVIOUSLY THE MAIN
WITNESS WAS RONZE CUMMING WHOM
THE PROSECUTOR SAID, IF YOU
DON'T CONVICT THE DEFENDANT HE
COULD BE KILLED AGAIN, HE WAS
THE STATE'S MAIN WITNESS AND THE
STATE IS OBVIOUSLY GIVING THE
JURORS A REASON TO WANT TO
ACCEPT HIS VERSION OF THE FACTS.
HIS TESTIMONY CONFLICTED
DIRECTLY WITH THE TESTIMONY OF
JULIUS HATCH, THE STATE'S OTHER

MAIN WITNESS, ON A NUMBER OF
CRUCIAL POINTS.
SUCH AS, THE ACCOUNT OF HOW
RONZE COMING WAS SHOT, ACCORDING
TO HIM HATCHER CAME IN AND
KICKED HIM DOWN AND SHOT HIM AND
HE JUMPED BACK UP AND RONZE --
HATCHER KICKED HIM DOWN AGAIN,
AND THAT WAS CONTRARY TO
HATCHER'S TESTIMONY ABOUT THAT.
HATCHER'S TESTIMONY ABOUT HOW IT
WAS THE PEOPLE -- WHAT HAPPENED
WHEN THEY CAME INTO THE HOUSE
WAS COMPLETELY DIFFERENT FROM
HATCHER -- FROM HATCHER AND
RONZE CUMMING COMPLETELY
DIFFERED ABOUT THAT, ACCORDING
TO CUMMING, THE MEN CAME IN AND
TALKED WITH HIM FOR 10 MINUTES,
STANDING UP, AFTER WHICH THEY
WERE BOUND.
WHEREAS HATCHER SAID AS SOON AS
THEY CAME IN, HATCHER GOT THEM
DOWN ON THE GROUND AND WAS
BINDING THEM UP.
>> BUT THERE IS NO REAL CONFLICT

IN THEIR TESTIMONY ABOUT THE --
MR. CUMMING BEING SHOT AND WHO
DID IT.
>> WELL, THEY BOTH SAID HATCHER
DID IT.
RIGHT.
THE FELLOW HATCHER DID THE
SHOOTING.
THEY BOTH SAID THAT THE
DEFENDANT WAS THERE.
BUT AS I SAY, THE JURORS COULD
LOOK AT THEIR TESTIMONY, AND
SAY, WELL, LOOK, THESE PEOPLE
AREN'T VERY CREDIBLE BECAUSE
THEY CONFLICT ON SO MANY POINTS
ABOUT WHAT WAS SAID, AND THE
INITIAL REPORT OF RONZE CUMMING
AT THE TIME OF THE MURDER WAS,
THAT THREE JAMAICAN MALES HAD
COME INTO THE HOUSE, AND THAT
WAS HIS INITIAL REPORT.
AND WHEN THE POLICE ARRIVED HE
SAID THAT AGAIN.
AND THEN THE POLICE CONTINUED TO
QUESTION HIM.
THAT IS WHEN HE COMES UP WITH

THIS NAME NEIL AND HE SAYS THEY
NEVER ASKED HIM FOR A LAST NAME
AND HE DIDN'T GIVE THEM A LAST
NAME BUT THE OFFICER
INTERROGATING HIM AT THE SCENE
SAYS, I KEPT ASKING HIM, NEIL
WHO?
AND SO THE JURORS COULD HAVE
LOOKED AT RONZE CUMMING AND
SAID, WELL, HE KEEPS GIVING ALL
OF THESE STATEMENTS OR
CONTRADICTORY, HE DISAGREED WITH
TRANSCRIPTS THAT WERE SHOWN TO
HIM OF HIS 911 CALL AND THE
POLICE STATEMENT SO HIS
TESTIMONY WAS VERY, VERY
DOUBTFUL.
THE PROSECUTION OBVIOUSLY WANTED
TO CREATE SYMPATHY FOR HIM BY
SAYING, WELL, LOOK, HE COULD BE
KILLED IF YOU DON'T CONVICT THIS
NEIL SALAZAR HERE.
THEN MR. HATCHER... I MEAN,
MR. HATCHER, HIS TESTIMONY -- I
MEAN, NUMBER ONE, OBVIOUSLY IS
IMPEACHED BY THE FACT HE MADE A

DEAL WITH THE STATE.
>> IM PERFORMED BY THE FACT THAT
WHAT?
>> THAT HEAT MADE A DEAL WITH
THE STATE.
THAT IS OBVIOUSLY A MAJOR FACTOR
WEIGHING ON HIS CREDIBILITY AND
HE'S TRYING TO SAY THAT IT WAS
THE DEFENDANT WHO WAS ORDERING
HIM TO DO ALL OF THESE THINGS.
>> CAN I --
>> ONE OF THE THINGS THAT
BOTHERS ME, EVEN THOUGH THERE
MAY HAVE BEEN INCONSISTENCIES IN
THESE PEOPLE'S TESTIMONY, IT
SEEMS TO ME THAT THE BASIC FACTS
WERE THEY SUPPORTED EACH OTHER
IN THE BASIC FACTS OF THE CASE,
AND THIS JURY REALLY WAS NOT
LEFT ATE WENT, AS I SEE IT, ANY
OTHER POSSIBILITIES OF HOW THE
CRIME TOOK PLACE.
SO, I GUESS IT GOES BACK TO JUST
THE QUESTION IS WHY SENTENCE
THAT ONE STATEMENT MADE BY THE
PROSECUTOR HARMLESS UNDER THE

CIRCUMSTANCES OF THE CASE?
>> WELL, I THINK THE PROSECUTOR
#NAME?
THIS?
THE PROSECUTOR SAID THIS BECAUSE
HE WAS CONCERNED, OBVIOUSLY,
ABOUT HOW THE JURY WAS GOING TO
LOOK AT THE CREDIBILITY OF THESE
WITNESSES WHO WERE SO IMPEACHED.
THE JURY HAD TO FIND BEYOND A
REASONABLE DOUBT THAT THEY WERE
TRUTHFUL AND -- ON THE PART IN
WHICH THEIR TESTIMONIES WERE
CONSISTENT WITH EACH OTHER.
BUT AS I'M SAYING, THERE WAS AN
AWFUL LOT OF INCONSISTENCIES
BETWEEN THEIR ACCOUNTS ON
MATTERS THAT WOULDN'T JUST BE
KIND OF PERIPHERAL KIND OF
THINGS, LIKE, YOU KNOW, WHAT
COLOR SHIRT DID SOMEBODY HAVE OR
SOMETHING LIKE THAT.
THESE ARE FACTS CONCERNING THE
DIRECT ACTIONS OF ALL OF THE
PEOPLE AT THE TIME OF THE MURDER
INCLUDING HOW RONZE CUMMING WAS

SHOT.
HE SAID THAT THE WIFE WAS
DRAGGED INTO THE OTHER ROOM AND
HATCHER SAID, NO, SHE WALKED
INTO THE OTHER ROOM.
SO THAT THE PROSECUTOR DECIDED,
THIS IS WHY HE -- I CAN'T --
WHAT OTHER REASON WOULD HE HAVE
TO MAKE THIS ARGUMENT?
OTHER THAN HE WAS CONCERNED
ABOUT THE CREDIBILITY OF THE
WITNESSES AND HOW THE JURY WAS
GOING TO LOOK AT THEM.
SO, HE MADE A DECISION, OKAY.
I CAN TELL THE JURY THAT THEY
DON'T -- I UNDERSTAND THEY DON'T
LIKE THAT WE MADE THIS
ARRANGEMENT WITH MR. HATCHER.
NEVERTHELESS, I'M GOING TO TELL
THEM THAT THERE IS GOING TO BE
ANOTHER ATTEMPT ON NEIL
SALAZAR'S LIFE IF HE WALKS
BECAUSE THEY DON'T BELIEVE
MR. HATCHER'S ACCOUNT.
BECAUSE I THINK THE PROSECUTOR
MUST HAVE DECIDED HATCHER WAS A

MORE RELIABLE WITNESS THAN RONZE
CUMMING BECAUSE AS I SAY, RONZE
CUMMING SAID IT WAS THREE
JAMAICAN MALES WHO CAME IN AND
FOUR AND KEEP CHANGING HIS STORY
ALL THROUGH THE CASE.
>> DO YOU AGREE THE ARGUMENT
MADE TO THE TRIAL JUDGE WAS NOT
IT IMPACTS THE CREDIBILITY OF
THE WITNESS.
THE ARGUMENT WAS THERE WERE
FACTS NOT IN EVIDENCE THERE WAS
ANY THREAT --
>> RIGHT.
>> ON HIS LIFE AND THE SYMPATHY
OF THE JURORS.
>> RIGHT.
RIGHT.
AND THAT IS MY ARGUMENT.
WHEN I TALKED ABOUT CREDIBILITY
OF THE WITNESSES, MAYBE I WASN'T
ARTICULATING MYSELF VERY CLEARLY
AND I APOLOGIZE.
THE POINT I WAS TRYING TO MAKE
IS THAT THE CREDIBILITY OF THE
WITNESSES HAD BEEN IMPEACHED.

SO HE FELT THAT HE COULD TELL
THE JURY, WELL, THERE IS THIS --
THIS POSSIBILITY OF AN ATTEMPT
ON THE LIFE OF RONZE COMING AND
GIVE THE JURY A REASON TO WANT
TO --
>> I GUESS MY POINT IS, DEFENSE
COUNCIL DID NOT MAKE THAT
ARGUMENT TO THE TRIAL COURT.
THE ARGUMENT OF THE DEFENSE
COUNSEL WAS IT IS EVIDENCE OF --
FACTS NOT IN EVIDENCE AND
SYMPATHY.
>> RIGHT.
RIGHT.
THAT IS MY ARGUMENT ABOUT
PREJUDICE.
>> RIGHT.
>> THE ARGUMENT -- THE ARGUMENT
FOR WHY THE STATEMENT IS
INADMISSIBLE IS THE DEFENSE
ATTORNEY SAID, THERE IS NO
EVIDENCE OF THIS.
ZERO EVIDENCE OF AN ATTEMPT ON
HIS LIFE.
THE JUDGE SUSTAINED THE

OBJECTION SO THAT IS NOT THE
ISSUE.
THE ISSUE, AT THIS POINT, AS I
UNDERSTAND IT, UNDER PARKER, IS
WHETHER THERE IS A REASONABLE
LIKELIHOOD THAT THIS COULD HAVE
AFFECTED THE JURORS.
>> YOU'RE ABOUT TO GO INTOER
REBUTTAL TIME, AND IF YOU WANT
TO ADDRESS ANY OTHER POINTS...
>> LET ME ADDRESS JUST VERY,
VERY BRIEFLY THE COLD,
CALCULATED AND PREMEDITATED JURY
INSTRUCTION WHICH IS THE 5th
ISSUE WHICH IS ALSO TIED INTO
THE THIRD ISSUE.
THE CASE LAW IS CONSISTENT AND
MORE OR LESS OVERWHELMING AND
THE STATE IN ITS BRIEF AT PAGES
40 AND 41, QUOTED DIRECTLY FROM
THE FILL MORE CASE, WHICH SAYS
THE JURY -- STATE MUST ESTABLISH
AN INTENT TO KILL BEFORE THE
FATAL -- BEFORE THE CRIMINAL
EPISODE BEGAN.
AND THE JURY WAS NOT INSTRUCTED

ON THAT.
NECESSARY ELEMENT OF PROOF.
THE DEFENSE OBJECTED TO THE
STANDARD INSTRUCTIONS AND THAT
WAS A VERY LIVE ISSUE IN THIS
CASE WAS WHETHER THERE WAS AN
INTENT TO KILL BEFORE THE
CRIMINAL EPISODE BEGAN.
THE EVIDENCE VERY STRONGLY
SUGGESTS THAT WHAT HAPPENED WAS
THAT THE DEFENDANT WENT THERE
WITH HATCHER AND -- IN ORDER TO
GET INFORMATION FROM MS. NUTTER
AND THAT THE -- HE WAS SAYING
THINGS LIKE, IF I DON'T GET
INFORMATION, OR IF I DON'T GET
THE TRUTH, SOMEBODY IS GOING TO
BE KILLED -- TO BE KILLED
TONIGHT SO THE MURDERER'S INTENT
WOULD NOT HAVE BEEN FORMED UNTIL
AFTER THE ARRIVAL AND I'M ALSO
ARGUING POINTS THREE, THAT THE
EVIDENCE DOES NOT SUPPORT THE
CIRCUMSTANCE, BUT IN PART
BECAUSE OF THAT, THE STATE DID
NOT PROVE THAT THERE WAS THIS

INTENTS TO KILL BEFORE THE
CRIMINAL EPISODE BEGAN.
>> TO THAT POINT, NUMBER 3, THE
TRIAL ORDERS IS VERY DETAILED IN
THE FACT THAT IT FOUND TO
SUPPORT CCP AGGRAVATOR, MORE
DETAILED THAN I HAVE SEEN IN I
THINK MOST OTHER CASES.
SO, WHEW DON'T THOSE FACTS
SUPPORT FINDING THE CCP
AGGRAVATOR?
>> WELL, YOU FOUND VERY DETAILED
FACTS BUT THE BULK OF THE FACTS
THAT HE FOUND WENT TO THE
PREPARATION INVOLVED IN THE
CRIME ITSELF.
THE BURGLARY TO GET INFORMATION
FROM MS. NUTTER.
I MEAN, THE FACT THEY DROVE A
LONG DISTANCE DOESN'T SHOW AN
ATTEMPT TO -- INTENT TO KILL
THEM.
FACT THAT HE BROUGHT A GUN
DOESN'T SHOW AN INTENT TO KILL.
I MEAN, SURELY, SURELY, WE KNOW
THAT THE PEOPLE GO TO DRIVE TO A

BANK WITH A GUN OR WHATEVER, TO
ROB A BANK OR GO TO COMMIT A
BURGLARY WHILE ARMED OR WHATEVER
BUT ONE CANNOT INFER FROM THAT
ANY INTENT TO KILL AT ALL.
>> YOU CAN INFER, AND THE COURTS
HAVE INFERRED AND WE HAVE
UPHELD, THEIR INFERENCE, THAT
WHERE THE DEFENDANT HAS AN
OPPORTUNITY TO LEAVE THE
PREMISES, WITHOUT COMMITTING
MURDER AND DOES NOT TAKE
ADVANTAGE OF THAT OPPORTUNITY,
THEN THAT SUPPORTS THE CCP
AGGRAVATOR.
IN OTHER WORDS, THEY ARE THERE
FOR A LONG TIME, THEY HAVE A GUN
IN THEIR HAND, AND THEY CAN
LEAVE BUT THAT YOU DON'T LEAVE.
AND INSTEAD THEY MURDER THE
VICTIMS.
THAT SUPPORTS CCP ACCORDING TO
OUR CASES.
>> WELL, YOU ALSO HAVE CASES
THAT GO THE OTHER WAY.
LARGE PART OF MY ARGUMENT IS YOU

HAVE CASES LIKE POWER, WHERE THE
MAN HAS THE LITTLE GIRL BOUND
AND GAGGED, AND THEN OBVIOUSLY
HE COULD HAVE JUST LEFT HER AND
HAD TAKEN HER TO A REMOTE
LOCATION AND WALKED AWAY BUT,
INSTEAD, DECIDED TO MURDER HER.
AND AST THE WYETH CASE WHERE THE
MAN DRIVES THE WOMAN ALL THE WAY
ACROSS THE STATE, SHOOTS HER IN
THE DITCH JUST TO SEE HER DIE,
AND THE OTHER WYETH CASE WHERE
HE HAS THE PEOPLE LOCKED UP IN
THE BATHROOM AND SHE HE'S
SHOOTING THEM ONE BY ONE AND
TELLING THE LAST ONE, LISTEN TO
THIS AND YOU'LL HEAR IT COMING
AND THE THOMPSON CASE WHERE THEY
HAVE THE GIRL IN THE HOTEL ROOM
AND THEY SLOWLY BEAT HER AND
TORTURE HER TO DEATH OVER AN
EXTENDED PERIOD.
THE PROBLEM IS, AS POINTED OUT
IN MY BRIEF, CASES GOING EITHER
WAY, ON A LOT OF THESE DIFFERENT
CIRCUMSTANCES SUCH AS THE ONE

THAT YOU ARE TALKING ABOUT, AND
THE SOLUTION THE COURT CAME UP
WITH FOR THAT PROBLEM IS THIS
ROGERS CASE, OF 1989 WHICH
CONTINUES TO BE RECITED IN THE
CASES INCLUDING AS I SAID, THE
FILL MORE CASE, THERE HAS TO BE
PROOF OF INTENT TO KILL BEFORE
THE CRIMINAL EPISODE.
THE FATAL INCIDENT BEGAN.
AND THAT IS WHAT I SUBMIT TO YOU
IS THE PROPER RULE.
>> JUST TO MAKE SURE, WHAT CASE
SAYS THAT HE HAD OVER -- YOU ARE
SAYING HE HAD THE INTENT TO KILL
BEFORE HE LEAVES MIAMI.
>> BEFORE THEY CAME INTO THE
HOUSE.
>> AND WHAT CASE SAID THAT THAT
YOU CAN'T HAVE PREMEDITATED
MURDER, YOU CAN'T HAVE CCP.
>> YOU CAN'T HAVE CCP.
AND ROGERS IS THE MAIN CASE ON
THAT.
BUT AS I SAY, THERE IS WYATT,
WHERE HE -- THEY GO INTO THE

PIZZA PARLOR, AND THEY -- I'M
SORRY.
>> NO, I GUESS I'M JUST, YOU
KNOW, YOU SAY THAT IT'S AS IF IT
WERE AN ACCEPTED PROPOSITION
THAT YOU CAN'T HAVE CCP WITHOUT
IT HAVING STARTED BEFORE THEY
CAME INTO THE HOUSE.
AND YOU ARE SAYING ROGERS, THAT
WOULD SUPPORT THAT.
BUT NOT THE QUESTION OF
PREMEDITATED MURDER.
>> NOT THE QUESTION OF
PREMEDITATED MURDER.
NO.
>> AND THE JURY ACTUALLY ON A
SPECIAL VERDICT FOUND BOTH
PREMEDITATED MURDER AND FELONY
MURDER.
>> YEAH.
YEAH.
>> AND THE INSTRUCTION THAT WAS
GIVEN IS ACTUALLY THE STANDARD
INSTRUCTION GIVEN FOR CCP?
>> YES, MA'AM.
>> AND YOU WANT IT -- THERE WAS

A REQUEST FOR A SPECIAL --
>> AN OBJECTION TO THE STANDARD
INSTRUCTION.
>> WAS THERE A REQUEST FOR A
SPECIAL INSTRUCTION?
>> NO.
NO.
I MEAN, OBVIOUSLY, IT WOULD HAVE
BEEN TOTALLY FUTILE AND ONCE THE
JUDGE SAID THIS INSTRUCTION IS
NOT NECESSARY, YOUR OBJECTION TO
THE STANDARD INSTRUCTION IS
WRONG, THE STANDARD -- THE JUDGE
RULED THE STANDARD INSTRUCTION
WAS OKAY.
SO AT THAT POINT -- IT WOULD
HAVE BEEN TOTE EL --
>> THAT DOESN'T ELIMINATE THE
FACT, WE HAVE SEEN CASES WHERE
THE DEFENDANTS HAVE IN FACT
OPPOSED A SPECIAL INSTRUCTION
EVEN THOUGH THE TRIAL JUDGE MAY
SAY THAT THAT IS THE STANDARD
INSTRUCTION.
IS PROPER.
I'M TRYING TO GET FROM YOU WHAT

YOU WOULD HAVE PROPOSED IN A
SPECIAL JURY INSTRUCTION.
>> OH, IT WOULD HAVE SIMPLY
FOLLOWED THE LANGUAGE.
>> PROPOSED LANGUAGE FROM
ROGERS, IS THAT RIGHT.
>> RIGHT.
ROGER, FILL MORE, AND I MEAN, IT
IS -- FILLMORE AND I MEAN, IT IS
IN THE CASES.
YOU KNOW, IT SAYS, THE
CALCULATION REQUIRES INTENT TO
KILL BEFORE THE CRIMINAL EPISODE
BEGAN.
AND THAT IS -- AS I SAY IS
QUOTED IN PAGES 40 AND 41 OF THE
STATE'S BRIEF.
>> YOU SAY THE BRINGING OF THE
GUN.
THEN THEY BRING DUCT TAPE TO THE
SCENE ALSO, AND ALL OF THAT, IS
NOT INDICATIVE OF SOME
CALCULATION PRIOR TO GETTING TO
THE SCENE OF THE CRIME?
>> WELL, I'M SAYING TWO THINGS.
ONE IS, EVEN IF THAT IS SOME

EVIDENCE THE JURY STILL WOULD
HAVE TO FIND THIS ELEMENT OF
INTENTS TO KILL.
BEYOND A REASONABLE DOUBT THE
INTENT TO KILL BEFORE THE
CRIMINAL EPISODE BEGAN AND THEY
COULD NOT MAKE THAT FINDING
WITHOUT AN INSTRUCTION TELLING
THEM THAT THAT WAS SOMETHING
THEY HAD TO FIND.
NUMBER 2, I AM SAYING THAT, NO,
THAT DOESN'T SHOW -- EVEN SHOW
PREMEDITATION BECAUSE, YOU KNOW,
THERE ARE LOTS OF CASES WHERE
PEOPLE COME TO CRIME SCENES WITH
DUCT TAPE AND GUNS OR WHATEVER
AND THEY BIND PEOPLE UP AND THEY
LEAVE.
I MEAN, YOU CAN'T INFER FROM
THAT --
>> AND PUT BAGS OVER THEIR HEADS
AND DUCT TAPE ON THEIR MOUTHS?
WITH THE INTENTS 0 ASPHYXIATE?
>> RIGHT, I -- THAT WAS AT THE
SCENE, YES, SIR.
>> HOW IS THAT CONSISTENT WITH

AN INTENT JUST TO ROB OR
BURGLAR.
>> OKAY.
THIS IS OBVIOUSLY AFTER THEY'VE
ARRIVED AT THE SCENE AND MY
PRINCIPAL ARGUMENT IS THAT THE
THIS DOES NOT SHOW THE INTENT TO
KILL BEFORE THEY ARRIVED AT THE
SCENE.
>> BUT IF THE INTENT WAS TO GET
INFORMATION AND IF THEY COME AND
DUCT TAPE MS. NUTTER, AND DUCT
TAPE HER HEAD AND MOUTH SO I
ASSUME SHE COULD NOT ARTICULATE,
RIGHT?
HOW WILL THEY GET ANY
INFORMATION?
>> WELL, ACCORDING TO RONZE
CUMMING THEY CAME AND DID THE
INTERROGATION BEFORE THE DUCT
TAPE WAS USED.
ACCORDING TO HATCHER, THEY COME
IN AND THEY BIND THEM UP AND THE
DEFENDANT IS QUESTIONED ON THAT.
SO THAT THE TAPE THE MOUTH
APPARENTLY DOES NOT COME UNTIL

AFTER THE --
>> YOUR POSITION WAS THAT IT IS
#NAME?
RONZE CUMMING WHEN THEY CAME IN
THE FIRST ATTEMPT WAS TO
QUESTION AND PRY INFORMATION OUT
OF THEM, AND --
>> RIGHT.
>> THEY DIDN'T GET THE
INFORMATION AND THEN DUCT TAPED.
>> AND THEN THE INTENT WAS
FRUSTRATED AND THAT IS WHAT THE
DEFENDANTS' STATEMENTS WERE
ACCORDING TO BOTH RONZE CUMMING
AND JULIUS HATCHER.
HE SAID IF I DON'T GET
INFORMATION, IF NO ONE TELLS ME
THE TRUTH, SOMEONE IS GOING DIE
TONIGHT.
SO AGAIN, THAT -- IF YOU LOOK AT
THESE FACTS, THESE FACTS, AND
YOU COMPARE THESE FACTS WITH
CASES SUCH AS THE PERRY CASE, OR
THE THOMPSON CASE, OR THE TWO
WYATT CASES, WHICH WERE
DISCUSSED AT GREAT LENT IN THE

INITIAL BRIEF, YOU WILL NOT SEE
#NAME?
STRONGER CASE FOR THE
CIRCUMSTANCES IN THOSE CASES.
AND I SUBMIT TO YOU, THAT AS I
SAID, REGARDLESS, THE JURY UNDER
THE CASE LAW IS A SEMINAR
FINDING OF INTENT TO KILL BEFORE
ARRIVAL AT THIS SCENE.
NOW, REGARDLESS OF WHETHER ONE
CAN INFER THAT FROM WHAT THEY
BROUGHT TO THE SCENE, THE JURY
COULDN'T HAVE MADE THAT FINDING
WITH THAT -- BECAUSE UNDER THE
INSTRUCTIONS THAT WERE GIVEN,
THE JUDGE HEARD -- OVERRULED THE
OBJECTION.
>> YOU OBVIOUSLY HAVE USED UP
ALL OF YOUR TIME.
I WANT TO BE CERTAIN OF ONE
CIRCUMSTANCE, THOUGH, BEFORE YOU
SIT DOWN.
AND IT RELATES TO YOUR FIRST
POINT.
YOU DO AGREE, DO YOU NOT, THAT
WHERE THE RECORD DEMONSTRATES

THAT COUNSEL WENT SIDEBAR WITH
THE COURT THAT THE JURY DID NOT
HEAR ANY OF THE CONVERSATION
THEN BETWEEN THE LAWYERS AND THE
JUDGE, AT THAT POINT, IS THAT
CORRECT.
>> WELL, I WASN'T THERE BUT I
ASSUME -- YES, SIR.
NOTHING IN THE RECORD INDICATES
--
>> THE REASON I'M ASKING THAT IS
BECAUSE THE PROSECUTOR DOES GO
ON TO SAY THAT HE THINKS HE HAS
A RIGHT TO MAKE THESE ARGUMENTS
AND ARTICULATES THAT AGAIN A
COUPLE OF TIMES.
ACTUALLY IN STRONGER LANGUAGE.
>> MUCH STRONGER LANGUAGE.
>> THE JURY DID NOT HEAR THAT.
>> THAT IS MY UNDERSTANDING,
RIGHT.
.
YES, SIR.
>> YOU ARE NOT MAKING THE
CONTENTIOUS, THAT THE JURY HEARD
THAT.

>> NO, I'M NOT ARGUING THAT.
NO.
NO.
THANK YOU FOR THAT
CLARIFICATION.
ALL RIGHT.
I'LL ASK THE COURT TO REVERSE.
>> MS. CAMPBELL?
>> GOOD MORNING, MATE PLEASE THE
COURT, LESLIE CAMPBELL WITH THE
ATTORNEY GENERAL'S OFFICE ON
BEHALF OF THE STATE.
WITH REGARD TO THE FIRST ISSUE,
THE COURT HAS BEEN TALKING ABOUT
A STANDARD OF REVIEW WHERE IT IS
BEYOND A REASONABLE DOUBT, THE
JULIO STANDARD AND PARKER AND
THE STATE'S CONTENTIOUS THIS IS
A DENIAL OF A MISTRIAL AND
THEREFORE THE STANDARD IS IT HAS
TO VITIATE, THE STATEMENT HAS TO
VITIATE THE ENTIRE TRIAL --
>> DID THE JUDGE SUSTAIN THE
OBJECTION.
>> HE DIDN'T DIDN'T SAY THE WORD
SUSTAINED BUT MADE IT CLEAR HE

DIDN'T BELIEVE THAT THE
PROSECUTOR'S ARGUMENT THAT WAS
PRESENTED DURING THE SIDEBAR WAS
PROPER AND SHOULD GO FORWARD,
WHAT HE SAID WITH REGARD TO THE
STATEMENT THAT WAS PRESENTED TO
THE JURY WAS THAT HE DIDN'T
THINK IT WAS ALL THAT BAD, IT
DIDN'T GO VERY FAR AND THAT IT
CERTAINLY DIDN'T UNDERMINE THE
ENTIRE -- THAT'S WHY DENIAL --
DENIED THE MISTRIAL? THE
PROBLEM I HAVE AND I HAVE TO
LOOK BACK AT PARKER IS THAT I
AGREE THAT IF THE -- THE GENERAL
RULE APPLIES, IF THE COURT
SUSTAINS THE OBJECTION AND
DENIES THE MOTION FOR MISTRIAL,
THEN -- [INAUDIBLE] THEN IT
WOULD BE -- [INAUDIBLE] AND THE
JURY NEVER HEARD THE ARGUMENT
WAS IMPROPER.
WHY ISN'T THAT, THEN [INAUDIBLE]
FROM THE JURY'S POINT OF VIEW,
AS IF THE OBJECTION IS NOT
SUSTAINED AND WHY THEN HE DID

NOT REVIEW IT AS FAR AS THE
ERROR STANDARD.
>> THE JURY WAS IMMEDIATELY
TOLD, THE TRIAL WAS STOPPED.
IN MID-SENTENCE AND THE NEXT
THING THE JURY HEARD WAS, THAT
THAT HAD NOTHING DO WITH THE
TRIAL AND SHOULDN'T CONSIDER THE
-- THE FACT THAT --
>> HEARD THAT FROM THE
PROSECUTOR.
>> FROM THE PROSECUTOR.
>> THE PROSECUTOR ACTUALLY SAID,
WHETHER A DEAL WAS MADE OR NOT
IN THE OFFICIAL -- OF COURSE
IT'S AN ISSUE FOR THEM.
THE ISSUE IS, WHAT WAS IMPROPER
WAS THE STATE IN THE
CIRCUMSTANCE HAD A REASONABLE
CONCERN THAT THERE COULD BE
ANOTHER ATTEMPT ON RONZE'S LIFE,
AN ATTEMPT TO FINISH HIM.
THAT IS PRETTY YOU KNOW --
LOOKING AT A AGAIN, I MEAN, THAT
IS OUTSIDE THE EVIDENCE AND IT'S
-- DOESN'T IT SORT OF TAKE AWAY

FROM [INAUDIBLE] NOW YOU'RE
SAYING THAT IT'S NOT -- YOU YOU
DON'T REVIEW UNDER A HARMLESS
ERROR STANDARD BECAUSE THE STATE
CORRECTED THE ERROR?
>> I THINK THAT IN THE CASE YOU
SHREW IT UNDER THE -- WHETHER
VITIATES THE ENTIRE TRIAL.
THE STANDARD IS FOR THE DENIAL
OF THE MISTRIAL, THAT THIS IS
STANDARD.
>> TRUE, IF THE OBJECTION HAS
BEEN SUSTAINED.
>> AND THE OBJECTION WAS
SUSTAINED.
ALTHOUGH --
>> YOU SAID YOU WEREN'T SURE
WHETHER --
>> NO, THE JUDGE DIDN'T ACTUALLY
SAY THE WORD SUSTAINED BUT
CERTAINLY MADE IT CLEAR THAT
THAT WAS NOT A PROPER ARGUMENT
AND THAT IS THE -- THE STATE WAS
NOT TO GO FORWARD AT SIDEBAR.
>> LET'S NOT TALK OVER EACH
OTHER.

THE JUDGE MADE IT CLEAR AT
SIDEBAR IT WAS AN IMPROPER
ARGUMENT.
>> THAT'S CORRECT.
>> THE JUDGE NEVER SAID TO THE
JURY, THE JUDGE -- DEFENSE
OBJECTED.
IN FRONT OF THE JURY.
>> YES.
>> THE JURY NEVER HEARD THE
JUDGE SAY THE OBJECTION IS
SUSTAINED.
[INAUDIBLE].
>> THAT IS CORRECT.
>> AND YOU STILL SAY WE SHREW
THAT UNDER A MIS-- SHOULD REVIEW
THAT.
>> I STILL BELIEVE THAT IS HOW
YOU SHOULD REVIEW IT BECAUSE IT
IS A DENIAL OF A MISTRIAL, IF
THE ARGUMENT IS -- THAT THE
OBJECTION SHOULD HAVE BEEN --
SOMETHING HAVE BEEN DONE ABOUT
THAT OBJECTION, OR SOME OTHER
ARGUMENT SHOULD HAVE BEEN MADE
TO THE JURY THEN YOU CAN GO TO

THE HARMLESS ERROR STANDARD BUT
IN THIS CASE IT WAS A DENIAL OF
THE MISTRIAL.
>> MS. CAMPBELL WHY DON'T WE
ASSUME THAT WE'RE -- BECAUSE
SOME OF US MAY THINK IT -- LET'S
ASSUME WE'RE GOING TO DO IT
UNDER A HARMLESS ERROR STANDARD.
TELL US WHY IT WAS HARMLESS
ERROR.
[INAUDIBLE].
>> THERE ARE BASICALLY TWO
REASONS.
NUMBER ONE, YOU HAVE TWO PEOPLE,
SURVIVING VICTIMS, AS WELL AS
MR. HATCHER, DISCUSSING THE
CRIME.
AND IN DISCUSSING THE CRIME, YOU
HAVE NOT JUST ONE ATTEMPT AT THE
VICTIMS' LIVES, BUT YOU HAVE
BASICALLY THREE.
YOU HAVE THE INITIAL BINDING,
THE DUCT TAPING AND PUTTING THE
PLAQUE BAG OVER THE HEADS.
WHEN THAT DIDN'T WORK, YOU HAVE
MR. SALAZAR TELLING MR. HATCHER,

SLIT THEIR THROATS AND THAT WAS
AFTER MR. HATCHER HAD ALREADY
TOLD MR. SALAZAR THAT MS. NUTTER
WAS DEAD BUT MR. SALAZAR WENT
AND TESTED MS. NUTTER HIMSELF,
AND FOUND THAT SHE WAS STILL
ALIVE AND THEN SAID, SLIT HER
THROAT.
AT WHICH POINT, MR. HATCHER
SAID, I CANNOT DO THAT.
SO THEN MR. SALAZAR SAYS, FINE,
HERE'S THE GUN, AND HE HANDS THE
GUN TO MR. HATCHER AND SAYS, NOW
I WANT HER SHOT.
AND PUT A PILLOW OVER HER HEAD
AND SHOOT HER WHICH HE DOES AND
THERE ARE THREE ATTEMPTS AT
MS. NUTTER'S LIFE.
OF COURSE THE LAST ONE WAS
SUCCESSFUL.
AND THEN, ALSO, YOU HAVE
MR. SALAZAR, WHO FROM MIAMI, ALL
THE WAY TO OKEECHOBEE, IS
BASICALLY SAYING, LOOK I'M GOING
TO GET SOME ANSWERS TONIGHT.
I INTEND, BASICALLY, TO KILL THE

PERSON WHO WAS DISRUPTED MY DRUG
DEALING OPERATION, WHO HAS
TALKED TO THE FBI.
>> -- TALKING ABOUT, I HAVE SOME
CONCERN, ALL COMES FROM
MR. HATCHER, WHO IS THE ADMITTED
SHOOTER IN THE CASE.
>> AND MR. CUMMING.
MR. CUMMING, THE SURVIVING
VICTIM.
>> BUT --
>> NOT, NOT THAT -- NOT THAT
FIRST PART FROM MIAMI.
>> [INAUDIBLE] WHAT HAPPENED UP
FROM THE TIME -- [INAUDIBLE]
BELIEVE HE, SALAZAR, HAD HATCHER
BOUND DOWN IN MIAMI?
AND THAT ALL OF THIS OCCURRED AS
OPPOSED TO THE ARGUMENT COULD BE
HATCHER DID THE SHOOTING, THAT
HE IS RESPONSIBLE, NOT
MR. SALAZAR.
>> YOU ALSO HAVE AT THE HOUSE,
MR. SALAZAR MAKING THOSE SAME
STATEMENTS, I WANT TO KNOW WHO
TALKED TO THE FBI, DID YOU TALK

TO RICO, WITH REGARD TO MY DRUG
DEALING BUSINESS?
I AM GOING TO GET ANSWERS
TONIGHT.
OR SOMEBODY IS GOING TO DIE
TONIGHT.
IN FACT, HE SAID THE SAME THING
TO HATCHER, DO WHAT I'M TELLING
TO YOU DO OR I'LL LEAVE YOU HERE
FOR DEAD AND THIS IS ALL SAID IN
FRONT OF THE VICTIMS.
SO, IT IS -- THIS WHAT IS THE
JURY HAS TO LOOK AT CLEARLY
THEY, THEMSELVES, WHEN THE
PROSECUTOR -- WHETHER THE
PROSECUTOR SAID ANYTHING OR NOT,
CERTAINLY SAW THE INTENT OF
MR. SALAZAR, TO SEEK SOME SORT
OF REVENGE.
I MEAN, IT WASN'T I'M GOING IN
AND BURGLARIZE THE HOUSE AND I
#NAME?
BEING HOME AND ALL OF A SUDDEN I
HAVE TO DO SOMETHING.
THIS WAS A MAN WHO WAS ANGRY
ABOUT THE DISRUPTION OF HIS DRUG

BUSINESS.
AND DECIDED THAT HE WAS GOING TO
EXACT SOME REVENGE.
THE JURY COULD HAVE THOUGHT
THAT, YOU KNOW, HE CERTAINLY IS
GOING TO GIVE HIM WHAT HE HAS
ALREADY DONE IN THE HOUSE, THAT
HE WOULD CERTAINLY HAVE AN
INTENT TO COME BACK AND KEEP
ATTEMPTING TO KILL UNTIL HE HAS
KILLED.
SO THE ONE STATEMENT IS CLEARLY
NOT SOMETHING THAT WOULD HAVE
COMPLETELY TURNED THE JURY
AROUND.
THEY WERE GOING TO ACQUIT
MR. SALAZAR THOUGH THEY HAD ALL
OF THE EVIDENCE BEFORE THEM?
AND THEN, OH, WELL THE
PROSECUTOR SAYS, YOU KNOW, HE
MAY COME BACK AND KILL OR
ATTEMPT TO KILL --
>> SEPARATELY CONSIDER THE
EFFECT OF THE ARGUMENT ON THE
PENALTY AS WELL AS THE GUILTY OF
THE DEFENDANT, IN OTHER WORDS,

THAT USUALLY WE SEE THIS ARISE
IN THE PENALTY PHASE.
WHERE AN OVERZEALOUS PROSECUTOR
GOES OVER THE TOP, AND SAYS,
WELL, THE ONLY WAY TO ENSURE
THAT A DEFENDANT DOESN'T GET OUT
AND KILL AGAIN, FOR INSTANCE, IS
TO GIVE HIM THE DEATH PENALTY.
SO WE HAVE SEEN IT COME UP IN
THAT CONTEXT SEVERAL TIMES.
BUT WHAT ABOUT THE POTENTIAL
IMPACT ON THE PENALTY PHASE HERE
OF THE STATEMENT LIKE THIS, THAT
THE JURY HAS NOT BEEN TOLD WHAT
IS IMPROPER.
>> WELL, FIRST OF ALL, IT WASN'T
DONE IN THE PENALTY PHASE.
IT WAS SOMETHING THAT WAS DONE
IN THE GUILT PHASE AND THEY WERE
NOT TOLD DIRECTLY THAT IF THEY
DON'T CONVICT OR IF THEY DON'T
RECOMMEND DEATH, THAT THIS WILL
HAPPEN.
IT IS THAT -- THAT WASN'T THE
ARGUMENT.
IT WENT TO WHETHER OR NOT A DEAL

SHOULD BE MADE TO BRING ON
ADDITIONAL EVIDENCE.
IT IS THE STATE'S POSITION THAT
THEY COULD HAVE GOTTEN A
CONVICTION JUST ON THE SURVIVING
VICTIM'S TESTIMONY.
BUT THE STATE, THE PROSECUTOR AT
THAT POINT, WANTED ADDITIONAL
EVIDENCE FOR THE JURY, SO WITH
REGARD TO THE PENALTY PHASE
ALONE, IT DOESN'T IMPACT THAT
DECISION.
WE HAVE A 12-0 VOTE, UNANIMOUS
VOTE FOR DEATH.
WE HAVE FOUR AGGRAVATORS, AND IF
THE JURY RECALLED THE ONE
COMMENT OUT OF A CLOSING
ARGUMENT WEEKS BEFORE AND --
BEFORE THE PENALTY PHASE, IT
WOULD HAVE NO IMPACT.
IT DIDN'T GO TO WHY YOU SHOULD
RECOMMEND DEATH OR WHY YOU
SHOULD RECOMMEND LIFE.
>> WHY WOULDN'T LOGICALLY GO TO
THAT?
IN OTHER WORDS, IF THE STATE IS

ARGUING THAT THE REASON WE MADE
A DEAL WITH THE NECESSARY DEVIL
HERE IS BECAUSE WE ARE WORRIED
THAT IF THIS FELLOW GOES FREE
HE'LL GO BACK AND KILL THE
SURVIVING VICTIM THAT HE DIDN'T
SUCCESSFUL CAUSE TO BE KILLED.
WHY DO YOU SAY IT LOGICALLY
DOESN'T GO WITH THAT.
>> IT IS EXTENDING THE --
EXTENDING THE ARGUMENT FURTHER
AND THE PROSECUTOR ACTUALLY MADE
IT.
>> THE PROSECUTOR IS PRETTY
ARTICULATE.
WHEN HE IS ARGUING HIS CASE TO
THE JUDGE WHICH YOU WOULD AGREE,
I ASSUME NONE OF THE SIDEBAR --
>> NONE OF THAT WAS PRESENTED TO
THE JURY, YOUR HONOR.
>> THE PROSECUTOR IS REALLY
DIGGING A DEEP HOLE FOR HIMSELF
AT THAT POINT BECAUSE HE'S
REALLY PUSHING THE ISSUE BEYOND
THE PROPER BOUNDS, BUT THE
RECORD DEMONSTRATES THAT WAS A

SIDEBAR AND YOUR OPPONENT
DOESN'T CLAIM THAT THAT WAS BEER
THE -- BEFORE THE JURY.
BUT THE STANDARD ON HARMLESSNESS
IS THERE IS NO REASONABLE
POSSIBILITY THAT THE JURY WOULD
HAVE CONSIDERED THAT, IN
CONSIDERING EITHER THE GUILT OR
WHAT PUNISHMENT TO IMPOSE.
SO YOU'RE SAYING -- AND THE
BURDEN IS ON THE STATE TO
DEMONSTRATE THERE IS NO
REASONABLE POSSIBILITY, NOT
PROBABILITY, BUT, POSSIBILITY,
SO, WHY SHOULDN'T THERE BE A
POSSIBILITY THAT THE JURY WOULD
SAY, YOU KNOW, THE PROSECUTOR
SAID ONE OF THE REASONS THAT
THEY MADE A DEAL WITH THE OTHER
DEVIL IS SO THIS FELLOW WOULDN'T
GO BACK AND DO THAT AND THE ONLY
WAY WE CAN BE CONFIDENT OF THAT
IS TO GIVE THIS FELLOW THE DEATH
PENALTY.
WHY WOULDN'T THAT BE A
REASONABLE POSSIBILITY?

>> GIVEN THE JURY INSTRUCTIONS
TELL THE JURORS TO LOOK AT
AGGRAVATION AND MITIGATION IN
THIS CASE AND THE PROSECUTION
WAS ARGUING THAT WE HAVE THE
FELONY MURDER, WE HAVE A
CONTEMPORANEOUS ATTEMPTED
MURDER, FELONY MURDER WITH THE
BURGLARY AND CON --
CONTEMPORANEOUS ATTEMPTED MURDER
AND CCP AND HAC, VERSUS THIS
LIMITED MITIGATION OF A
DIFFICULT TRIAL CHILDHOOD.
THAT WAS THE FOCUS OF THE
PENALTY PHASE.
YES.
I AGREE THAT THEY CAN LOOK AT
ALL OF THE GUILT PHASE EVIDENCE,
ALSO.
BUT, THE FOCUS IS ON THE
AGGRAVATION AND THE MITIGATION,
AND TO MAKE THE SUPPOSITION THAT
THEY WOULD TAKE ONE COMMENT FROM
THE PROSECUTOR, THAT HAD BEEN
CUT OFF IN MID STATEMENT AND NOT
BEEN RETURNED TO OTHER THAN TO

SAY, YOU KNOW, BASICALLY, WHY WE
MADE A DEAL HAS NOTHING DO WITH
THE CASE, FOR THEM TO FOCUS ON
THAT, AS OPPOSED TO ALL OF THE
OTHER EVIDENCE AND ALL OF THE
OTHER AGGRAVATION AND MITIGATION
JUST SENTENCE EITHER A
REASONABLE, A POSSIBLE OR A
LIKELY SCENARIO.
IT IS BEYOND A REASONABLE DOUBT,
A SENTENCE THAT WAS BASED ON THE
ADMISSIBLE FACTS, AND A GUILT
DECISION THAT WAS BASED ON
ADMISSIBLE FACTS.
>> AS I UNDERSTAND, JUSTICE AN
STEAD'S QUESTION IT IS THAT,
LET'S ASSUME IT DID NOT AFFECT
THE GUILT PHASE, THEN WHY
WOULDN'T IT AFFECT THE PENALTY
PHASE AND IF WE ASSUME GUILT
ALREADY, ISN'T THE ANSWER TO
YOUR QUESTION, THE FACT THAT THE
JURY HAS GIVEN INSTRUCTIONS ON
EITHER LIFE WITHOUT THE
POSSIBILITY OF PAROLE, OR DEATH,
WERE THEY GIVEN THAT INSTRUCTION

IN THE CASE.
>> YES.
THEY KNEW WHAT THE SENTENCES
COULD BE.
>> SO ONCE YOU DETERMINE GUILT,
REGARDLESS OF WHETHER YOU SAY
LIFE OR DEATH, THE DEFENDANT
WILL NEVER AGAIN BE -- SEE THE
LIGHT OF DAY OUTSIDE OF A PRISON
COMPOUND.
>> THAT IS CORRECT, YOUR HONOR.
>> SO THERE IS NO POSSIBILITY
ONCE YOU DETERMINE GUILT, THAT
THE DEFENDANT WILL GO OUT AND
FINISH THE JOB ON CUMMING?
>> YES.
>> THAT AND THAT COULD NOT HAVE
ENTERED INTO THE CALLOUS --
>> THAT'S CORRECT.
WOULD THE NOT HAVE.
>> WAS THERE -- ONE MINUTE,
PLEASE.
>> WAS THERE AN ARGUMENT MADE TO
THE TRIAL COURT CONCERNING THE
EFFECT THAT THIS STATEMENT MADE
TO THE PENALTY PHASE?


WAS THAT ARGUMENT -- ARGUE --
>> I DON'T RECALL THAT ARGUMENT
BEING MADE IN THE -- EITHER
DURING THE MOTION FOR MISTRIAL
OR IN THE PENALTY PHASE.
>> AND LET ME, AS FAR AS WHAT
HAPPENED IN THE TRIAL COURT, THE
TRIAL COURT I TAKE IT IN THE
SIDEBAR AFTER THE OBJECTION WAS
MADE, ASKED FOR WHETHER THE
PROSECUTOR HAD AUTHORITY FOR
MAKING THE STATEMENT.
>> THAT'S CORRECT.
>> AND MADE THE PRESS STATEMENT
HE WASN'T GOING TO ALLOW IT.
>> THAT'S CORRECT.
>> BECAUSE THE PROSECUTOR DIDN'T
HAVE ANY AUTHORITY --
>> WHICH AT THAT POINT PROMPTED
THE DEFENSE COUNSEL TO MAKE A
MOTION FOR A MISTRIAL.
>> THAT'S CORRECT.
AND WAS THERE A DISCUSSION AT
THAT POINT ABOUT ANY TYPE OF
CURATIVE.

>> ONLY TO THE EXTENT THAT THE
DEFENSE COUNSEL BELIEVED HE HAD
TO ASK FOR A CURATIVE IN ORDER
TO PRESERVE IT FOR APPEAL AND HE
SAID, BASICALLY HE WAS SAYING, I
DON'T WANT TO -- A CURATIVE BUT
DOING IT BECAUSE I HAVE TO IN
ORDER TO PRESERVE IT FOR THE
APPEAL AND THE JUDGE SAID YOU
PRESERVE IT FOR APPEAL AND I
DON'T SEE WHY WE HAVE TO
HIGHLIGHT THIS AND IS TALKING
ABOUT, THAT IT REALLY DIDN'T GO
FAR, THAT IT DIDN'T VITIATE THE
TRIAL EVIDENCE AND THEY WERE
GOING TO MUTUAL ON.
>> IT SEEMS FROM THE TRANSCRIPT
THAT THE DEFENSE COUNSEL AGREED
WITH THE COURT THAT A CURATIVE
INSTRUCTION WOULD -- HE SAID I
AGREE WITH THE COURT BUT
DISAGREE WITH THE APPELLATE
POSITION I HAVE TO ASK FOR
SOMETHING THAT IS DETRIMENTAL
BUT THEY FORCE ME TO DO IT.
>> THAT'S CORRECT.

>> BUT, JUST, BRINGS TO MIND
THAT IT'S MORE IMPORTANT THAN
MAYBE I REALIZED THE STATEMENT
AND THE GUILT PHASE, BECAUSE AS
YOU HAVE SAID, ONCE HE'S FOUND
GUILTY THERE ARE ONLY TWO
OPTIONS, EITHER GOING TO BE LIFE
IN PRISON WITHOUT POSSIBILITY OF
PAROLE, OR, DEATH.
AND SO, IF THE -- THE FOCUS IS
REALLY ON THE GUILT PHASE, IT
SAYS, THEN IT BECOMES CRITICAL,
EVERY FACTOR THAT THE JURY IS
CONSIDERING AS TO WHY THE GUY
SHOULD BE FOUND GUILTY.
OF FIRST DEGREE MURDER AND UNDER
THOSE CIRCUMSTANCES, WITHOUT THE
JUDGE EVER TELLING THE JURY I'M
SUSTAINING THE DEFENSE OBJECTION
TO THE STATEMENT WITHOUT SAYING
THAT STATEMENT -- WITHOUT THE
JURY HAVING ANY INDICATION THAT
THAT STATEMENT WAS IMPROPER, CAN
WE REALLY SAY THAT THE JURY DID
NOT CONSIDER THAT STATEMENT IN
ITS DELIBERATIONS.

>> IF YOU JUST TAKE -- IF YOU
TAKE OUT EVERYTHING THAT HATCHER
TALKED ABOUT AND YOU LOOK.
>> THE SHOOTER.
>> THIS IS THE SHOOTER.
TAKE OUT EVERYTHING THAT HATCHER
TALKED ABOUT, AND YOU REST YOUR
DECISION JUST ON WHAT CUMMING
SAYS, HE SAYS NEIL CAME INTO THE
HOUSE, THAT NEIL IS THE PERSON
THAT HE WORK WITH DOWN IN FORT
LAUDERDALE FOR NINE MONTHS, NEIL
IS THIS PERSON --
>> WHEN DID HE SAY THAT?
WASN'T HIS ORIGINAL STATEMENT TO
THE POLICE MORE AMBIGUOUS THAN
THAT?
>> NO, NOT WHEN IT CAME TO THE
WORD "NEIL."
NOT WHEN IT CAME TO HOW HE MET
NEIL, NOT WHEN IT CAME TO WHERE
NEIL LIVED.
NOW, GRANTED, ON THE NIGHT OF
THE INCIDENT, WHEN HE HAD TWO
BULLETS -- WOUNDS TO THE HEAD
AND IS WAITING, HE CAN'T

ARTICULATE EVERYTHING THAT
HAPPENED, HE DOESN'T COME UP
WITH A LAST NAME BUT HE COMES UP
WITH NEIL, AND HE COMES WITH
THAT HE LIVED WITH ME AND HE
COMES UP WITH, I WORKED WITH HIM
AND THEN, A FEW DAYS AFTER THE
INCIDENT AND JUST ON THE DAY
THAT HE GETS OUT OF THE
HOSPITAL, HE SAYS I'VE GOT A
VIDEO OF NEIL.
NEIL LIVES MINE HOUSE, WE WENT
TO THE BEACH, I HAVE A VIDEO AND
HE PRODUCE THIS IS VIDEOTAPE OF
NEIL SALAZAR.
SO, AS FAR AS NOT GIVING A LAST
NAME, MR. CUMMING GAVE AN AWFUL
LOT OF INFORMATION ABOUT WHO THE
NEIL WAS.
AND HE NARROWED IT DOWN TO --
FOR THE POLICE ON THE NIGHT OF
THE MURDER WHEN HE HAS TWO 38
CALIBER BULLET WOUNDS TO THE
HEAD.
>> WE HAVE CUMMING, IS THAT HIS
LAST NAME --

>> YES.
>> SAYING NEIL IS THIS ONE WHO
DID THE SHOOTING AND A
PROSECUTOR IS SAYING, AND IF YOU
DON'T CONVICT NEIL, MR. CUMMING
MAY BE KILLED LATER.
>> HE DIDN'T SAY IT IN THAT WAY
--
>> ANOTHER ATTEMPT ON HIS LIFE.
>> IF THAT WAS -- CERTAINLY FROM
THE SIDEBAR THAT WAS HIS INTENT
BUT SAID HE HAD NO EVIDENCE OF
THAT ADD SIDEBAR.
THE POINT IS --
>> SEE, THE POINT IS, THOUGH,
THAT THE JURY DID NOT KNOW HE
HAD NO EVIDENCE OF IT.
THE JURY DID NOT KNOW THAT THIS
WAS --
>> THE JURY DIDN'T KNOW THAT HE
HAD EVIDENCE OF IT AND HE NEVER
TOLD THE JURY HE HAD EVIDENCE.
WHAT HE SAY IS, IS IT REASONABLE
TO THINK UNDER THESE
CIRCUMSTANCES, WHERE THERE HAD
BEEN THREE ATTEMPTS ON THIS

MAN'S LIFE, AND NEIL KNOWS THAT
HE IS NOW NOT KILLED -- HAS NOT
KILLED HIS INTENDED VICTIM AND
THE WHOLE PURPOSE OF THAT
KILLING OR ATTEMPTED KILLING WAS
FOR REVENGE FOR DISRUPTING HIS
DRUG BUSINESS, IS IT REASONABLE
FOR US TO GIVE MR. HATCHER A
DEAL?
SO THAT WE HAVE ADDITIONAL
EVIDENCE OF THIS CRIME?
THAT IS IN ESSENCE WHAT HIS
ARGUMENT WAS AND DOES THAT GO TO
THE ACTUAL GUILT, WHEN YOU HAVE
ALL OF THE EVIDENCE FROM
MR. CUMMING AS TO THE ACTUAL
CRIME?
NO.
IT DOESN'T VITIATE IT, IT
DOESN'T IMPACT IT, BEYOND A
REASONABLE -- BEYOND A
REASONABLE DOUBT THERE IS
ABSOLUTELY NO HARM IN THE ONE
COMMENT THAT WAS CUT OFF IN MID
SENTENCE AND AS IN THE
PROSECUTOR WENT ONTO SOMETHING

ELSE.
THE JURY COULD HAVE AT THAT
POINT ALSO ASSUMED THAT THIS
WASN'T AN ARGUMENT THAT WAS
SUPPOSED TO HAVE BEEN MADE.
BECAUSE THE PROSECUTOR DIDN'T GO
BACK TO IT.
CLEARLY, THIS WAS SOMETHING SAID
AT SIDEBAR THAT SAID WE'RE NOT
GOING FURTHER WITH THAT
ARGUMENT.
IF IT HAD BEEN OVERRULED,
CLEARLY THE PROSECUTOR WOULD
HAVE SAID SOMETHING FURTHER.
>> WHAT DID THE PROSECUTOR MEAN
WHEN HE SAID THAT CLEARLY, IN
THE MINDS OF ALL OF US, THIS IS
YOU A LEGITIMATE CONCERN, THAT
HE MAY COME BACK AND KILL?
IS HE INCLUDING THE JURY IN THAT
STATEMENT?
>> ARE YOU REFERRING TO THE
FIRST PORTION OF --
>> IN THE MINDS OF ALL OF US
THIS IS A LEGITIMATE CONCERN.
>> WAS THAT -- BEFORE THE JURY

--
>> THE PROSECUTOR, RIGHT.
>> BEFORE OR AFTER --
>> OBVIOUSLY IT IS A CONCERN,
SOMEONE MAY COME BACK AND FINISH
THE JOB.
SOMEONE MAY BE SENT TO FINISH
THE JOB.
>> THE SIDEBAR.
>> BUT HE'S SAYING IN THE BINGE
OF THAT, IN THE MINDS OF ALL OF
US, THIS IS A LEGITIMATE
CONCERN.
INCLUDING THE JURY, IN THE MINDS
OF ALL OF US.
>> IT SEEMS I DON'T SEE THE
EXACT SENTENCE WHERE THAT IS
DONE AT SIDEBAR, YOUR HONOR.
>> YES.
>> IF IT IS AT SIDEBAR THE JURY
HAS ABSOLUTELY NO EVIDENCE OF
THAT.
>> BUT HE SEEMS TO BE SAYING
THAT IT IS OBVIOUS IN
EVERYBODY'S MIND, INCLUDING THE
JURY --

>> I DON'T THINK HE'S --
>> A LEGITIMATE CONCERN AND OF
COURSE, IF IT WASN'T A
LEGITIMATE CONCERN FOR THE JURY
BEFORE, YOU WOULD THINK IT WOULD
BE AFTER HE MADE IT A CONCERN
FOR THE JURY, BY CALLING IT TO
THEIR ATTENTION.
>> I DON'T KNOW THAT YOU CAN GO
SO FAR AS TO SAY THAT HE WAS
SAYING IT IS A LEGITIMATE
CONCERN IN THE JURY'S MIND.
HE'S TALKING ABOUT, I WOULD
ASSUME --
>> HE IS SPEAKING BROADLY, TO
EVERYBODY THIS WOULD BE OBVIOUS
TO EVERYBODY AND WOULD BE A
LEGITIMATE CONCERN.
>> WELL, IF YOU HAVE A DRUG
DEALER WHO IS OUT FOR REVENGE
AND HAS DRIVEN UP FROM MIAMI, 2,
3, 4 HOURS TO GET TO SOMEONE'S
HOME, AND THEN TAKES THE
EXTRAORDINARY STEPS OF BRINGING
DUCT TAPE, OF TURNING OFF THE
LIGHTS, OF UNPLUGGING THE PHONE,

AND THEN MAKING THREE ATTEMPTS
ON THE VICTIMS' LIVES --
>> A MINUTE AGO YOU TOLD US
THERE IS NO REASONABLE
POSSIBILITY THAT THE JURY WOULD
CONSIDER THAT FACTOR.
NOW YOU SEEM TO BE SAYING NOT
ONLY IS THE STATEMENT OF THE
PROSECUTOR A REASON THAT THEY
WOULD CONSIDER THAT FACTOR, BUT,
THAT ALL OF THE OTHER EVIDENCE
IN THE CASE WOULD ALSO CAUSE THE
JURY TO -- IS THAT WHAT YOU ARE
ARGUING.
>> NO, I'M NOT, YOUR HONOR, THE
TOTALITY OF THE EVIDENCE SHOWS
THAT THIS, MR. SALAZAR HAS TAKEN
EXTRAORDINARY METHODS -- OR
STEPS TO TRY AND KIM THESE TWO
PEOPLE.
HE WAS SUCCESSFUL ON ONE AND
UNSUCCESSFUL ON THE OTHER.
THE MERE STATEMENT THAT MAYBE
THERE IS A DEAD, YOU KNOW, IT IS
REASONABLE TO ASSUME THAT WE
HAVE A GOOD BASIS TO GIVE A

DEAL, IT IS SUCH A MINOR POINT,
GIVEN ALL OF THE OTHER EVIDENCE.
>> YOU ARE SAYING, THE --
[INAUDIBLE] HE MAY HAVE SAID AT
SOME POINT, TO GO, LISTEN, HE
MADE A DEAL WITH THE PERSON, HE
WAS THE SHOOTER, THE OTHER GUY
WAS THE MASTERMIND, WHO WAS
GOING TO DO THIS AND THAT AS FAR
AS --
>> THAT IS EVIDENCE -- EVIDENCE
IN THE CASE,.
>> THE EVIDENCE STILL CAME IN
AND THE JURY LEGITIMATELY
[INAUDIBLE] HE, SALAZAR, WANTED
BOTH OF THEM DEAD.
>> ABSOLUTELY.
>> CAN YOU ADDRESS THE ISSUE OF
THE CPP INSTRUCTION?
ABOUT -- WHEN, OBVIOUSLY THERE
HAS TO BE MORE THAN JUST
PREMEDITATED INTENT.
DOES THE HEIGHTENED INTENT HAVE
TO BEGIN BEFORE THEY GO INTO THE
HOUSE.
>> NO.

IT DOESN'T HAVE TO BEGIN WHEN IT
WAS IN MIAMI.
IT COULD HAVE OCCURRED IN THE
HOUSE.
JUST HAVE TO HAVE EVIDENCE OF
HEIGHTENED PREMEDITATION AND IN
THIS CASE --
>> NOW, WHAT IS -- DOES ROGERS
SAY, THAT SEEMS TO INDICATE --
>> I BELIEVE ROGERS, IT WAS --
THE DEFENDANT, IF I'M RECALLING
IT CORRECTLY, THE DEFENDANT
BECAME ANGRY OF SOMETHING THAT
HAPPENED DURING THE ROBBERY.
AND IT WAS REACTION TO THAT.
HERE, WE DON'T HAVE SOMEONE
BECOMING ANGRY BECAUSE OF
SOMETHING THAT HAPPENED IN THE
HOUSE.
WE HAVE SOMEONE ANGRY COMING
INTO THE HOUSE, AND WANTING
REVENGE FOR THE DISRUPTION OF
HIS DRUG BUSINESS.
WE HAVE SOMEONE SAYING, WHICH
CLEARLY SHOWS PREMEDITATION,
ESPECIALLY IN THESE

CIRCUMSTANCES, HEIGHTENED
PREMEDITATION, IF I DON'T GET
ANSWERS SOMEONE WILL DIE
TONIGHT.
WHAT ANSWERS DOES HE WANT?
HE'S ASKING, ARE YOU THE ONE WHO
DISRUPTED MY DRUG BUSINESS?
IF THE VICTIM SAYS YES, WHAT IS
HE GOING TO DO?
HE'S GOING TO KILL HER.
IF THE VICTIM SAYS NO, WHAT IS
HE GOING TO DO?
HE IS GOING TO KILL HER BECAUSE
HE DIDN'T GET THE ANSWER HE
WANTED AND WE HAVE EVIDENCE THAT
HE WAS GOING TO KILL HER.
BECAUSE SHE SAID NO.
I DIDN'T -- I DIDN'T HAVE
ANYTHING TO DO WITH RICO AND I
DIDN'T TALK TO ANYBODY AND STILL
END U. PUTTING A PLASTIC BAG
OVER HER HEAD AND DUCT TAPING
HER TO THE POINTS WHERE IF
MS. NUTTER HADN'T BEEN SHOT
WOULD HAVE DIED FROM
ASPHYXIATION AND AS FAR AS

HEIGHTENED PREMEDITATION,
WHETHER IT BE THE INITIAL STEPS
THAT HE TOOK WITH MR. HATCHER IN
MIAMI, AND BRING IN THE DUCT
TAPE AND TAKING THREE HOURS TO
GET UP THERE, UNPLUGGING THE
PHONE, DUCT TAPING THE ARMS AND
LEGS OF THESE PEOPLE, WE
CERTAINLY HAVE HEIGHTENED
PREMEDITATION FROM THE TIME THAT
THEY WERE --
>> SO THE REFERENCE TO THE
INTENT TO KILL, AS TO -- BEFORE
THE CRIMINAL EPISODE BEGAN,
MEANING BEFORE THE MURDER?
I MEAN, BEFORE THE STEPS THAT
THEY WERE TAKING TO MURDER THE
PERSON?
AND THAT WOULD MAKE SENSE, WE
THOUGH PREMEDITATION COULD BE
INFORMED SECONDS BEFORE, SO...
>> MOMENTS.
>> HERE, THE FACT THAT HE STARTS
TO BUT THE BAG OVER THEIR HEAD,
HE INTENDS TO -- PUTS THE --
>> DUCT TAPE.

>> HE SAYS IT'S NOT TAKING LONG
ENOUGH, SO EVEN IF HE, FOR SOME
REASON, THE JUDGE FOUND THAT THE
INTENT TO KILL HIGH SCHOOL BEGUN
--
>> MUCH BEFORE THAT.
AND, YOU KNOW, WHEN THE COURT IS
TALKING ABOUT CCP AND MAKING A
DECISION, ON DIFFERENT CASES, I
MEAN, THERE ARE SO MANY
DIFFERENT FACTORS THAT ARE
CONSIDERED AND IF THE COURT SAYS
SOMETHING, OR FOCUSES ON
SOMETHING IN ONE CASE, BECAUSE
THERE IS EVIDENCE THAT IT
OCCURRED, SAY, YOU KNOW, IN
MIAMI WHEN THEY HAD TO TAKE A
TRIP UP TO OKEECHOBEE, VERSUS
JUST IN THE HOUSE, AT
OKEECHOBEE, YOU KNOW, IF THE
COURT IS FOCUSING ON DIFFERENT
THINGS IT DOESN'T LIMIT THE
COURTS FOCUSING ON WHAT HAPPENED
IN THE HOUSE, WHERE THE EXACT
LOCATION OF THE -- OR THE EXACT
LOCATION OF THE MURDER LATER ON

AND WHILE THERE MAY BE DIFFERENT
REASONS FOR CC PERFORM IN
DIFFERENT CASES, IT DOESN'T
UNDERMINE THE CASE LAW FOR CCP.
IT IS AN INDIVIDUAL -- SOMETHING
THAT THE COURT HAS TO LOOK AT
INDIVIDUALLY.
SO, UNLESS THERE ARE ANY OTHER
QUESTIONS WITH REGARDS TO THIS,
THE STATE WOULD ASK THIS COURT
AFFIRM BOTH THE CONVICTIONS AND
SENTENCE.
THANK YOU.
>> THANK YOU VERY MUCH.