Jerone Hunter v. State of Florida

SC06-1963

THE NEXT CASE ON THE CALENDAR IS
HUNTER V. STATE.
YOU HAVE THE NEXT TWO CASES.

>> [INAUDIBLE]
>> MAY IT PLEASE THE COURT, I'M
RYAN TRUSKOSKI, AND I REPRESENT
MR. HUNTER.
THE LARGE CASE, THERE ARE A LOT
OF ISSUES.
>> ARE YOU GOING TO DIRECT OUR
ATTENTION SPECIFICALLY?
BECAUSE THERE ARE A NUMBER OF
ISSUES HERE.
>> I WOULD LIKE TO START WITH A
VERY FUNDAMENTAL CONCEPT I DON'T
THINK THIS COURT HAS EVER
ADDRESSED, AND THAT IS THE
EXTENT OF PROTECTIONS OF
FLORIDA'S DUE PROCESS CLAUSE AS
COMPARED TO THE FEDERAL DUE
PROCESS CLAUSE.
>> COUNSEL, I HAVE AN UNDERLYING
CONCERN HERE, AND THAT IS THAT
AS YOU SAID YOU'RE STARTING OFF
WITH A VERY BROAD CONCEPT.
YOU ALSO ARE COUNSEL IN THE NEXT
CASE THAT WE HAVE ON THE DOCKET
THIS MORNING, AND AFTER READING
THE BRIEFS IN THIS CASE, I MUST
ADMIT THAT I HAVE SOME CONCERN
THAT THE BRIEFS IN THE TWO CASES
LOOK AN AWFUL LOT ALIKE IN TERMS
OF APPLYING THESE RATHER BROAD
AND SOMEWHAT VAGUE CONCEPTS OF
DUE PROCESS AND OTHER CONCEPTS.
HOW DID YOU COME TO IDENTIFY THE
SAME ISSUE IN THESE TWO CASES?
>> BECAUSE IT'S NOT LIMITED JUST
TO THESE TWO CASES.
>> IS THAT JUST A PURE
COINCIDENCE, OR IS THIS AN
APPROACH THAT YOU BELIEVE IS
APPROPRIATE IN DEATH PENALTY
CASES?
>> I BELIEVE IT'S AN APPROPRIATE
IN EVERY CRIMINAL CASE BECAUSE I
DON'T THINK THAT FLORIDA'S DUE
PROCESS CLAUSE HAS BEEN DEFINED.
>> HOW DID, WHAT WERE -- WHAT
WE'RE USED TO SEEING AS THE
DIRECT REVIEW COURT WOULD BE IN
THE POSITION OF REVIEWING OTHER
CRIMINAL CASES ON DIRECT APPEAL.
IS SOME CLAIM OF A SPECIFIC
ERROR OF THE TRIAL JUDGE AND
THEN TRIAL JUDGES HAVE TO MAKE
DECISIONS, OBVIOUSLY, WHETHER
IT'S ADMITTING EVIDENCE OR
RULING ON MOTIONS OR WHATEVER.
SO WHAT SPECIFIC ERROR OF THE
TRIAL COURT ARE YOU POINTING TO
HERE IN TALKING ABOUT THIS BROAD
CONCEPT OF STATE DUE PROCESS?

>> WELL, IN THE BRIEF I RAISE
NUMEROUS CLAIMS OF --
>> WELL, NUMEROUS CLAIMS, YOU
SEE, DOESN'T HELP US.
WHAT ARE YOU CLAIMING WE SHOULD
REVERSE THE TRIAL JUDGE ON UNDER
THIS CONCEPT OF STATE DUE
PROCESS?

>> WITHIN EACH ARGUMENT SECTION
I DID IDENTIFY WHERE THERE WAS A
DUE PROCESS.
>> WELL, TELL ME NOW.
IS IT A DENIAL OF A MOTION?
WAS IT THE ADMISSION OF SOME
EVIDENCE?
WHAT RULING OF THE TRIAL JUDGE
IS IT THAT YOU'RE CLAIMING WAS
ERRANT?
>> THE DENIAL OF THE MOTION TO
SUPPRESS, THE FAILURE TO DECLARE
A MISTRIAL WHEN CO-DEFENDANT
CANNON REFUSED TO TESTIFY.
>> SO YOU'RE GROUPING A WHOLE
BUNCH OF RULINGS OF THE TRIAL
JUDGE UNDER THIS SAME ISSUE?
>> I DIDN'T DO IT AS A SHOTGUN
APPROACH, I MEAN --
>> IT LOOKS LIKE A SHOTGUN
APPROACH, WITH ALL DUE REVERENCE
HERE TO YOUR ARGUMENT.
ARE YOU CLAIMING UNDER THIS
ARGUMENT THAT THE JUDGE ERRED IN
A LARGE NUMBER OF RULINGS?
>> YES.

>> AND IN THOSE RULINGS THE
JUDGE WAS SPECIFICALLY ASKED TO
INVOKE FLORIDA'S DUE PROCESS
CLAUSE APPROPRIATELY, AND THE
JUDGE REFUSED TO DO SO OR
ERRONEOUSLY DIDN'T DO SO OR
WHAT?
>> YES.
HE WAS EITHER TOLD DUE PROCESS
IN GENERAL OR CITED CASE LAW.
>> [INAUDIBLE] FLORIDA DUE
PROCESS?
>> SOME OF THE ARGUMENTS DIDN'T
SPECIFY WHETHER IT WAS FLORIDA
OR FEDERAL DUE PROCESS.

>> YOU GO AHEAD.

>> OKAY.
WELL, THE ISSUE OF WHETHER I'M
BEING GENERAL ONLY APPLIES TO
WHETHER THIS TERM IS
APPROPRIATELY DEFINED.
WHAT I'M TRYING TO ESTABLISH AND
WHAT THIS COURT HAS NEVER HELD
IS REALLY IS FLORIDA'S DUE
PROCESS CLAUSE MORE PROTECTIVE
THAN THE FEDERAL?
I DON'T THINK THIS COURT HAS
EVER ADDRESSED THAT.
SO ONCE WE GET, ONCE WE GET
THERE, THEN, YOU KNOW, WHAT ARE
THE EFFECTS OF THE RULING?
>> I THINK WHAT YOU HAVE TO DO
IS TELL US SPECIFICALLY IN A
PARTICULAR ISSUE WHY THE FLORIDA
DUE PROCESS CLAUSE WOULD HAVE
RENDERED YOUR CHILD RELIEF
WHEREAS UNDER THE FEDERAL DUE
PROCESS CLAUSE HE WOULD NOT HAVE
BEEN GRANTED RELIEF.
I MEAN, YOU'VE GOT TO BE MORE
SPECIFIC ABOUT WHAT IT IS THAT
YOU REALLY WANT AND WHY IT WAS
[INAUDIBLE]
>> WELL, IN EACH ARGUMENT
SECTION --
>> WELL, THEN LET'S GET TO EACH
ARGUMENT THEN.
>> OKAY.
WELL, THAT'S FINE.
ONE OF THE ISSUES IS THE
INSERTION OF THE AND/OR JURY
INSTRUCTION, YOU KNOW, I BELIEVE
THAT IN FLORIDA --
THE CO-DEFENDANT SALAS' CASE THE
FIFTH DISTRICT COURT OF APPEAL
ALREADY ADDRESSED THIS, AND WITH
REGARD TO SALAS, IT WAS HELD NOT
TO BE REVERSIBLE ERROR, BUT I'M
ARGUING THAT FOR SURE UNDER
THE --
>> HAVE WE NOT ADDRESSED THAT
ISSUE VERY RECENTLY?
>> YOU HAVE.
AND THE QUESTION WILL BECOME, IN
THIS CASE, WAS --
>> THERE WAS A PRINCIPLE
INSTRUCTION GIVEN IN THIS CASE,
CORRECT?
>> YES.
>> OKAY.
AND THAT WAS WHAT WE DECIDED
IN --
>> THAT RECENT CASE.
>> I MEAN, YOUR POSITION IS MUCH
LIKE THAT IN THAT IT WOULD HAVE
TO BE FUNDAMENTAL ERROR.
>> THIS WAS PRESERVED, SO IT
WOULDN'T BE FUNDAMENTAL ERROR.
>> OKAY.
>> BUT IT WOULD BE WHETHER IT
WAS HARMFUL ERROR.
>> OKAY.
>> WHY DON'T WE, THERE'S A --
I'D LIKE FOR YOU TO ADDRESS
SPECIFICALLY THE ISSUE OF
[INAUDIBLE] MR. HUNTER WAS 18
YEARS OLD AT THE TIME, WAS TRIED
WITH BOTH -- AND VICTORINO?
IS THAT CORRECT?
>> THAT IS CORRECT.

>> ALL RIGHT.
AND WAS A MOTION FOR SEVERANCE
FILED AS TO HUNTER?
>> IT WAS.
>> ALL RIGHT.
AND TELL ME HOW DID THE TRIAL
COURT VIEW THIS DISCRETION IN
DENYING THE SEVERANCE?
>> THERE'S A CASE OFF THE THE
FIRST DCA, WHICH I CITED ON PAGE
37 OF MY BRIEF, WHICH SAYS ANY
TIME A CO-DEFENDANT IS GOING TO
ACCUSE ANOTHER CO-DEFENDANT OF
COMMITTING A CRIME, THAT A
SEVERANCE SHOULD BE GRANTED.
AND IN MY BRIEF AS WELL THE
TRIAL COURT DID RENDER A LENGTHY
ORDER TRYING TO ADDRESS ISSUES
ABOUT STATEMENTS FROM
CO-DEFENDANTS IMPLICATING OTHER
CO-DEFENDANTS AND TRIED TO
REMEDY THE FACT THAT ANOTHER
CO-DEFENDANT COULDN'T
CROSS-EXAMINE ON THOSE ISSUES.
>> WELL, WHAT WAS HUNTER'S
DEFENSE?
WAS HUNTER'S DEFENSE THAT
VICTORINO DID IT?
>> HUNTER'S DEFENSE WAS THAT
ESSENTIALLY HE WAS UNDER THE
DOMINATION OF VICTORINO AND
DIDN'T HAVE A CHOICE.
>> WHAT WAS VICTORINO'S DEFENSE?

>> I BELIEVE IT WAS THAT HE
DIDN'T DO IT.
I CAN'T CONFIRM THAT.
>> I MEAN, IT SEEMS TO ME OF ALL
THE ISSUES THAT THAT ACTUALLY
HAS THE MOST POTENTIAL TO
TROUBLE ME BECAUSE ALTHOUGH IT
DOES LOOK LIKE THE JURY MADE
INDIVIDUALIZED SENTENCING
DECISIONS, IT'S THE SAME JURY,
WAS THE STATE SEEKING DEATH
AGAINST ALL THREE DEFENDANTS?
>> YES.
>> AND THE SAME JURY, DID THEY
HEAR THE PENALTY PHASE FOR ALL
THREE DEFENDANTS?
>> YES.
>> AND THEY GAVE, THEY
RECOMMENDED LIFE FOR SALAS?
>> CORRECT.
>> AND THEN DEATH FOR VICTORINO
AND --
WERE THE PENALTY PHASES ALL
SEPARATE?
>> NO, THEY WEREN'T, AND I'VE
ALSO CLAIMED THAT AS ERROR AS
WELL.
THE GUILT PHASE SHOULD HAVE BEEN
SEPARATE AND FOR SURE --
>> THE PENALTY PHASE, THEY HAD
SEPARATE PENALTY PHASES FOR EACH
CO-DEFENDANT, BUT BEFORE THE
SAME JURY, CORRECT?
>> I MAY HAVE MADE A MISTAKE ON.
THAT I THINK YOUR HONOR IS RIGHT
ON THAT.
I WOULD HAVE TO DOUBLE CHECK.
IT WAS FOR SURE WITH THE SAME
JURY, BUT I CAN'T REMEMBER IF
THEY WERE ALL DONE AT THE SAME
TIME OR NOT.
I CAN'T REMEMBER THAT RIGHT NOW
AS I STAND HERE.
>> THIS COULD BE A PRETTY BIG
ISSUE BECAUSE, YOU KNOW, I THINK
THAT YOU MIGHT HAVE A POINT IN
TERMS OF WHO'S MORE CULPABLE.
YOU'VE GOT MR. VICTORINO, HOW
OLD WAS HE?
>> HE WAS THE OLDEST OF THE
GROUP, I'M NOT SURE, IN HIS
20s --
>> BIG GUY?
>> BIG GUY, DOMINATING GUY,
VIOLENT FELON.
AS THE TRIAL COURT FOUND, MY
CLIENT WAS UNDER SUBSTANTIAL
DOMINATION.
>> MR. HUNTER WAS A, IS HE STILL
IN SCHOOL?
>> I DON'T RECALL IF HE WAS IN
SCHOOL OR NOT.

>> YOU KNOW, THIS IS WHERE I GET
TROUBLED, OKAY?
WE'RE TALKING ABOUT A LIFE OR
DEATH OF AN 18-YEAR-OLD, AND AS
YOU MADE COMMENT, HE'S THE
YOUNGEST PERSON ON DEATH ROW.
WOULD SEEM TO ME THAT EVERY
ASPECT OF THIS MENTAL
MITIGATION, THE MITIGATION IN
THIS CASE TO SHOW WHERE HE WAS,
HOW HE HAD NO CRIMINAL
BACKGROUND BEFORE AND HOW MAYBE
THE JURY COULD HAVE JUST, YOU
KNOW, SORT OF JUST IN A FELL
SWOOP KIND OF PUT HIM WOULD BE
THE CRUX OF WHAT YOU WANT US TO
BE FOCUSING ON.
SO WHEN YOU'RE SAYING YOU'RE NOT
SURE WHETHER HE WAS IN SCHOOL OR
NOT, IS THAT BECAUSE IT WASN'T
MENTIONED IN THE TRIAL?
>> I JUST DON'T RECALL AS I
STAND HERE.
WHEN THE CRIMES WERE COMMITTED,
IT WAS ABOUT TWO MONTHS AFTER
HIS 18TH BIRTHDAY.
HE HAS THE EMOTIONAL AGE OF A
CHILD BASED ON HIS FAMILY
HISTORY OF MENTAL ILLNESS, HE'S
A PARANOID SCHIZOPHRENIC, HE
HEARS VOICES, AND BASICALLY WE
WOULD NOT BE HERE TODAY IF THERE
WAS NO TROY VICTORINO.
THAT'S WHAT THE TRIAL COURT
ESSENTIALLY HELD.
>> SO WHAT POINT ON APPEAL IS
THAT?
IS THAT AN ISSUE THAT GOES TO --
AND I GO BACK ON SEVERANCE.
YOU'RE SAYING TO ME, I'M SURE
WE'RE GOING TO HEAR THE CONTRARY
FROM MR. NUNNELLEY THAT YOU WERE
NOT ABLE TO EFFECTIVELY POINT
THE FINGER AT VICTORINO BECAUSE
HE WAS THERE AS A CO-DEFENDANT,
AND HE WAS, HE HAD AN
INCONSISTENT DEFENSE?
WAS THAT THE ISSUE RAISED AS TO
WHY THESE CASES SHOULD BE
SEVERED, AND WHAT'S YOUR BEST
CASE ON THE TRIAL COURT ABUSING
ITS DISCRETION?
>> THAT IS OUR ARGUMENT, AND THE
CASE I HAVE CITED IN MY BRIEF,
WELL PROBABLY THE BEST ONE IS
ROE V. STATE, THE FIRST DCA ON
PAGE 37 IN THE CITE THERE IS.
AND WITH REGARD TO THE
CIRCUMSTANCES WE JUST DISCUSSED
ABOUT HIS BEING SO YOUNG, YOU
KNOW, THAT ALSO RELATES TO
WHETHER DEATH IS A PROPORTIONATE
SENTENCE, WHETHER THE TRIAL
COURT PROPERLY FOUND THAT THE
AGGRAVATION OUTWEIGHS THE
MITIGATION --
>> VICTORINO'S GOTTEN THE DEATH
PENALTY, SO IT'S NOT A SITUATION
WHERE YOU WOULD BE SAYING THAT
THE MORE CULPABLE GOT A LIGHT
SENTENCE.
SO YOU'VE GOT AND THE JUDGE HAS
RECOGNIZED AND FOUND AS
MITIGATION THAT THE -- DID HE
FIND AS MITIGATION THAT YOUR
CLIENT WAS UNDER SUBSTANTIAL
DOMINATION OF VICTORINO?
>> CORRECT.
THAT WAS FILED.
>> OKAY.
SO THAT WAS FOUND, BUT THEN YOU
HAVE THE SIX DEATHS IN THIS
CASE.
CORRECT?
>> CORRECT.
>> AND YOUR CLIENT WAS
RESPONSIBLE DIRECTLY FOR HOW
MANY OF THE DEAD?
>> FOUR.

>> SO HOW, AGAIN, I MEAN, THAT'S
ABOUT THE MOST AGGRAVATED OF
AGGRAVATED OF CRIMES.
>> THAT IS THE MOST AGGRAVATED.
SO THEN THE QUESTION WOULD BE AS
THE STANDARD IS FOR
PROPORTIONALITY, IT HAS TO BE
ONE OF THE LEAST MITIGATED.
>> [INAUDIBLE] IT HAS TO BE, YOU
HAVE TO SHOW THAT THE MITIGATION
OUTWEIGHS THE AGGRAVATION, AND I
DON'T -- OR VICE VERSA THAT THE
AGGRAVATION OUTWEIGHS THE
MITIGATION.
WHEN YOU HAVE, IF YOU HAD ONE
DEATH, BUT FOUR DEATHS AND
ACTUALLY SIX DEATH THAT IS
OCCURRED WITH THE PRECONCEIVED
PLAN, AND YOUR CLIENT KNEW
BEFORE HE WENT IN THAT THE
INTENT WAS NOT TO TERRORIZE
THESE PEOPLE, BUT TO KILL THEM,
CORRECT?
>> THAT IS WHAT THE STATE
PROVED.
MY CLIENT'S POSITION WAS THAT HE
JUST WANTED TO HURT THEM AND NOT
KILL ANYONE.
BUT THAT IS THE STATE'S CASE.
WHAT WAS THE UNDERLYING QUESTION
THERE?
>> THE UNDERLYING QUESTION IS
HOW ISN'T THIS PROPORTIONAL?
>> BECAUSE EVEN THOUGH THERE
WERE FOUR, SIX DEATHS, THE
MITIGATION IS SO SUBSTANTIAL IN
THAT LITERALLY MY CLIENT WAS
UNDER THE DOMINATION OF
VICTORINO DUE TO HIS ABSOLUTE
MENTAL HEALTH ISSUES, HIS YOUNG
AGE --
>> WHAT DO THE EDUCATIONAL
RECORDS DEMONSTRATE TO US IN
THIS CASE AS YOU WOULD SAY YOUR
BEST POSITION?
DOES IT SHOW HE WAS TALKING TO
HIMSELF IN CLASSES, COULDN'T
PASS A CLASS, ALL THOSE THINGS?
GOING BACK TO JUSTICE PARIENTE'S
QUESTION ABOUT SCHOOLING.
>> I MEAN, HE DEFINITELY HEARD
VOICES, HE HAD A DEAD TWIN
BROTHER WHO DIED WHEN HE WAS --
>> TALK ABOUT EDUCATIONAL
RECORDS, ACADEMIC PERFORMANCE.
WHAT WAS HE DOING IN SCHOOL?
WHAT'S HIS LIFE LIKE?
>> I DON'T, I DON'T REMEMBER THE
SCHOOL RECORDS AS I STAND HERE.
IN THAT REGARD I KNOW HE HAD AN
IQ TEST DONE THAT WAS LOW
NORMAL.
>> WHERE DID HE GO TO SCHOOL,
AND DID HE GRADUATE FROM HIGH
SCHOOL?
WHAT WAS THE HIGHEST GRADE THAT
HE COMPLETED?
>> I JUST DON'T KNOW THAT AS I
STAND HERE.
I APOLOGIZE.
>> ARE THESE THE FIRST DEATH
PENALTY CASES THAT YOU'VE
HANDLED ON APPEAL?
>> NO.
>> OKAY.
WELL, I DON'T RECALL SEEING YOU
BEFORE IN THE COURTROOM.
BUT YOU'VE BEEN BEFORE US
BEFORE?
>> I HAVE.
>> HOW MANY DEATH CASES HAVE YOU
HANDLED ON APPEAL?
>> I HAVE PROBABLY ABOUT TEN
RIGHT NOW OR MAYBE --
>> HOW MANY HAVE YOU HANDLED
THAT HAVE WENT TO DECISIONS BY
THIS COURT?

>> MAYBE TWO OR THREE?

>> AND WHAT ARE THE NAMES OF
THOSE CASES?
>> WELL, THERE WAS McLEAN, I'M
SORRY, BOBBY -- V. STATE, I'M
NOT SURE.
I WOULD HAVE TO LOOK AT THE
COURT'S ONLINE DOCKET.
JAMES FORD.
>> WHAT WAS OUR DECISION IN THAT
CASE?

>> IT AFFIRMED THE SENTENCE.

>> [INAUDIBLE]
>> ON THIS I AM PRIVATE
COURT-APPOINTED COUNSEL.

>> [INAUDIBLE]
>> RIGHT.
I RESERVE THE REST OF MY TIME.

>> THANK YOU.
>> BEFORE YOU SIT DOWN I
WOULD LIKE TO ADDRESS YOUR
-- IN YOUR -- DUE PROCESS
ARGUMENT YOU SAY THAT THESE
OTHER ISSUES THAT YOU HAVE
RAISED WOULD HAVE BEEN A FACT
SCIENTIFICALLY, I
GUESS YOUR CLIENT, TO THAT
EXTENT, WOULD YOU EXPLAIN,
YOUR -- YOUR -- MOTION TO
SUPPRESS ARGUMENT.
IF I UNDERSTAND, YOUR ARGUMENT IS
THAT WHEN YOUR CLIENT
SAYS, THAT IS ALL I HAVE TO
SAY THAT YOU ARE BASICALLY
SAYING THAT HE IS NOW -- HIS
-- AND THAT POLICE OFFICERS
DO NOT SCRUPULOUSLY HONOR
THAT REQUEST I'D LIKE TO
HEAR YOUR ARGUMENT ON THAT
ISSUE.
>> MAYBE, MAYBE I WAS WRONG,
TO -- ISN'T THE I'M -- WHAT I'M
--
>> YOU WERE WRONG ABOUT --
>> IN THE SENSE THAT I'M NOT
SURE THAT PLAYS TO THE FIFTH
AMENDMENT RIGHT-TO-REMAIN-SILENT
ISSUE.
IT MAY WELL -- I WILL ANSWER THAT
QUESTION, AND THAT IS THAT
THIS COURT WOULD NOT HAVE TO
BE BOUND BY U.S.
CONSTITUTIONAL LAW IN
ADDRESSING WHETHER, YOU KNOW,
THE MANDATE ISSUES OR IN
THIS CASE WHETHER THE RIGHT TO REMAIN
SILENT WAS HONORED --
>> ANSWERING HER QUESTION. 
>> I'M PROCEEDING TO
ANSWER HER QUESTION.
>> SHE
IS ASKING YOU, ABOUT 
THAT CONFESSION.
CAN YOU
ANSWER THAT QUESTION?
>> WELL, JUST THAT FLORIDA
SHOULD PROVIDE MORE
SAFEGUARDS IN THAT AREA.
>> ARE YOU WITHDRAWING THAT
ISSUE THEN?
>> NO.
>> YOU SAID THAT YOU -- WERE
WRONG ABOUT THAT.
>> KIND OF.
>> WHAT DO YOU MEAN BY YOU WERE
WRONG?
>> MY DUE PROCESS ARGUMENT
WOULDN'T APPLY LIKE TO 6TH
AMENDMENT INVOCATION OF
COUNSEL, AND THAT IS KIND OF
WHERE I WAS GOING WITH THAT.
>> PLEASE -- TRY TO ANSWER
THE QUESTION IF YOU CAN --
SHE IS ASKING ABOUT THE
CONFESSION, AND --
>> YES, WITHOUT ANY DUE
PROCESS CONSIDERATION TELL
US -- YOUR BEST ARGUMENT AS
TO WHY JUST TAKING IT BY
YOUR CLIENT -- THE FACT --
RIGHT TO REMAIN SILENT AND
THAT THE POLICE --
[INAUDIBLE]
>> HE MADE -- I DON'T RECALL
IF HE TRIED TO LEAVE OR NOT.
I JUST CAN'T RECALL THE --
>> YOU ARE CLAIMING WHEN HE
SAID "THAT IS IT" HE WAS
CUTTING OFF THE INTERVIEW?
>> I'M SORRY?
>> ARE YOU CLAIMING THAT
WHEN HE SAID "THAT'S IT" THAT
HE WAS CUTTING OFF THE
INTERVIEW AND DIDN'T WANT TO
ANSWER ANY FURTHER
QUESTIONS?
>> WELL, I THINK THAT IS ONE
OF THE STATEMENTS, SO --
YES.
>> ISN'T THAT IN CONTEXT --
"THAT IS IT" TO NOT MEAN HE
WAS CUTTING OFF THE
INTERVIEW, HE WAS TALKING
ABOUT SOMETHING ELSE?
>> THAT PROBABLY WOULD BE
THE INFERENCE MOST FAVORABLE
TO THE STATE ON THAT
SUPPORTING THE JUDGE'S
RULING, I THINK I HAVE
ANSWERED THE QUESTION AS
BEST AS I COULD.
WE'RE GOING BACK TO --
BASICALLY, IN THE
SUPPRESSION ISSUE THE STATE,
THE LAW ENFORCEMENT YOU COULD
LEAVE ANY TIME YOU WANT,
NO PROBLEM, YOU ARE FREE TO
LEAVE.
BUT AFTER THAT, EVERY LITTLE
THING THEY DID WAS CONTRARY
TO THAT, THE STATEMENTS,
EVERYTHING CALCULATED SO HE
COULDN'T THINK HE WAS FREE
YO LEAVE THAT IS THE CRUX OF
THAT ARGUMENT.
>> THANK YOU.
>> MAY IT PLEASE THE COURT I
REPRESENT THE STATE OF
FLORIDA.
>> WOULD YOU ADDRESS JUSTICE
PARIENTE'S QUESTION OPPOSING
COUNSEL ABOUT THIS
CONFOUNDING MAN'S BACKGROUND,
HIGH SCHOOL RECORDS, THOSE
KINDS OF THINGS.
>> I WILL DO THE BEST I CAN,
JUDGE.
MY UNDERSTANDING THEY --
MY RECOLLECTION OF THIS
DEFENDANT'S BACKGROUND I
BELIEVE HE GRADUATED FROM
HIGH SCHOOL, PRETTY SURE IT WAS
PINE RIDGE HIGH SCHOOL HE
ATTENDED WHICH IS THE HIGH
SCHOOL IN THE DELTONA AREA,
WHERE THESE MURDERS TOOK
PLACE.
THE DEFENDANT HAD ATTENDED
HIGH SCHOOL WITH TWO OF THE
VICTIMS.
OF MICHELLE AND JONATHAN
GLEESON, BOTH WHOM HE KNEW
FROM HIGH SCHOOL I BELIEVE
HE GRADUATED FROM HIGH
SCHOOL, I REMEMBER -- NOT SURE
THIS IS IN THE RECORD.
I DON'T WANT TO GO OUTSIDE OF
IT MR. HUNTER WAS A PRETTY
GOOD WRESTLER IN HIGH
SCHOOL, NOT SURE WHERE I KNOW
THAT FROM AS I STAND HERE
THIS MORNING. 
>> HOW ABOUT ACADEMICS IS
THAT IN THE RECORD?
>> I DON'T REMEMBER SEEING
ONE WAY OR THE OTHER.
MY UNDERSTANDING, AND I
BELIEVE FROM THE -- IT IS A
FAIR INFERENCE FROM THE
SENTENCING ORDER NOTHING
PARTICULARLY OUTSTANDING OR
STRIKING ABOUT HIS
ACADEMICS.
HE HAD A LOW AVERAGE IQ FULL
SCALE -- ONE, WHICH IS NINE
POINTS BELOW AVERAGE, THAT
IS MY BEST RECOLLECTION OF
IT, I DON'T KNOW, REMEMBER
FROM THE PENALTY PHASE HIS
ACADEMICS, A FOCUS OF THE
PENALTY PHASE.
THE FACT OF THE
MATTER IN MR. HUNTER'S CASE
THIS CASE AS FAR AS HUNTER
IS CONCERNED, IS ABOUT
PENALTY, ALWAYS WAS, ALWAYS
HAS BEEN.
MR. HUNTER NEVER DENIED HIS
INVOLVEMENT, PARTICIPATION.
HIS STATEMENT THAT WAS TAKEN
THE DAY I BELIEVE THE DAY
AFTER AND, YOU KNOW, I
APOLOGIZE IF I FLIP-FLOP FOR
BLENDING SOMETHING FROM
VICTORINO BUT TIED TOGETHER
VICTORINO COMING THIS WAY,
TOO.
>> ISN'T THAT ISSUE WHETHER
OR NOT BECAUSE OF ALL OF
THIS TIME IN BLENDING FROM
THESE -- DEFENDANTS THAT
THERE SHOULD HAVE BEEN A --
AND IN MY MIND ALSO PLAYS
INTO THIS ISSUE IN THE
END AND BORE ON -- HERE WE
HAVE THREE PEOPLE,
BASICALLY, YOU KNOW, POINTING
FINGERS AT EACH OTHER, AND
THEN, WITH THE JURY GIVEN
THIS AND/OR INSTRUCTION,
THIS TO ME THAT IS SOMETHING
THAT YOU NEED TO ADDRESS AND
STRAIGHTEN OUT WITH US. 
>> LET ME TRY TO GET INTO
THAT ONE PACKAGE, FOR YOU
JUSTICE, IF I CAN.
THIS CASE IS NOT UNLIKE THE
NEXT CASE I HAVE THIS WEEK
WHICH IS ALSO HUNTER, ON
THURSDAY.
BOTH OF THESE CASES INVOLVE
DEFENDANTS CONSEQUENTLY
IN VOLUSIA
COUNTY WHO -- WERE INVOLVED
WENT THROUGH JOINT TRIALS.
THE FACTS OF THIS CASE, WERE
PRESENTED IN SUCH A -- FACTS AS
ONE READS THE RECORD TO
DIFFERENTIATE AND
DISTINGUISH BETWEEN THE
VARIOUS DEFENDANTS, AND
THEIR DEGREES OF
CULPABILITY. 
>> IF I UNDERSTOOD IT THE
STATEMENT IMPLICATED MR.
HUNTER HE SAYS MR. HUNTER
WENT IN WITH A BAT, DEMANDED
HIS PROPERTY AND STARTED
HITTING, WENT TO ANOTHER
VICTIM, TO ANOTHER VICTIM,
DURING THE COURSE OF THE
MOTION TO SEVER THERE WAS
A HEARING ON THE MOTION TO
SEVER -- WHAT WAS WHAT WAS
BROUGHT OUT THAT THESE
STATEMENTS WERE GOING TO
COME IN; CORRECT?
>> YES, MA'AM, BUT --
>> SO WHY BASED ON THE FACT
THAT WE ARE GOING TO HAVE --
DEFENDANTS POINTING AT EACH
OTHER, AT -- MOTION TO --
THAT IS WHAT I WANT --
>> BECAUSE THAT IS NOT THE
WAY THE STATE TRIED THE
CASE, THIS IS NOT A CASE
WHERE THE STATE
AUTHENTICATED THE CD OR
VIDEOTAPE OR AUDIOTAPE OF A
STATEMENT AND HIT THE PLAY
BUTTON, THEY DIDN'T PUT IN
THE TAPE-RECORDED STATEMENTS,
THE STATEMENTS OF THE
INDIVIDUAL DEFENDANTS, WHEN
JUST TWO OF THEM BECAUSE
VICTORINO AT ALL TIMES SAID
HE DIDN'T DO IT, DON'T KNOW
ANYTHING ABOUT IT, CAME IN
THROUGH THE QUESTIONING
OFFICER AND WAS EXPRESSLY
LIMITED TO WHAT HUNTER SAID
ABOUT HUNTER'S VIOLATION, OR
INVOLVEMENT WHAT SALAS SAID
ABOUT --
>> LET ME UNDERSTAND
SOMETHING, IF VICTORINO IS
SAYING I WASN'T THERE I
DIDN'T DO IT,
AND THE DEFENSE OF HUNTER IS
THAT I ACTED UNDER
DOMINATION OF VICTORINO,
ISN'T THAT IN ITSELF MAYBE
WE WILL HEAR IT FROM THE
VICTORINO CASE, INCONSISTENT
DEFENSE THAT PREJUDICE BOTH
HUNTER AND VICTORINO?
>> THAT WAS THE PENALTY PHASE
ISSUE, THAT WAS AT THE
PENALTY PHASE.
>> IN THE GUILT PHASE, HUNTER'S
DEFENSE WAS WHAT?
>> HUNTER BASICALLY
ADMITTED HE DID IT.
THE GUILT STAGE, HUNTER DID
NOT MOUNT A SERIOUS
CONCERTED DEFENSE. 
>> DIDN'T HE TESTIFY?
>> YES, MA'AM, HE DID TESTIFY
AND I'M --
>> WHAT DID HE SAY IN
TESTIMONY?
>> ADMITTED HIS INVOLVEMENT.
>> DID HE IMPLICATE
VICTORINO?
>> YES, MA'AM.
>> DID HE IMPLICATE --
>> YES. 
>> THIS WAS AFTER HUNTER GOT
ON THE STAND IN HIS OWN
OBVIOUSLY THE STATE DID NOT
CALL HIM.
HUNTER GOT ON THE STAND AND
CHOSE TO GO FAR BEYOND WHAT
CAME IN THROUGH THE
STATEMENTS GIVEN TO LAW
ENFORCEMENT. 
>> LET ME UNDERSTAND WHAT
YOU ARE SAYING THE STATE'S
CASE-IN-CHIEF, THE STATE DID
NOT PUT ON ANY EVIDENCE THAT
WAS CONTRARY -- IMPLICATED
VICTORINO OR --
>> NO, MA'AM, ABSOLUTELY NOT.
>> -- HAD NOT ANY EVIDENCE
THAT VICTORINO IMPLICATED
HUNTER, OR -- SALAS, SALAS
THE -- NOT EVIDENCE THAT
HE IMPLICATED HUNTER OR
VICTORINO.
>> NOT IN THE STATE'S CASE-IN-CHIEF
NO, MA'AM.
IT WAS TRIED IN A
COMPARTMENTALIZED FASHION,
I WOULD SUGGEST THAT IT WAS
THE APPROPRIATE WAY TO
HANDLE THIS CASE, AS WAS
IT APPROPRIATE TO HAVE
A SINGLE JURY, FOR THE
PENALTY STAGE OF THIS CASE.
>> LET ME ASK ONE QUESTION ON
THAT.
 -- BACK ON THE ENDALL --
INSTRUCTION ISSUE NUMBER
EIGHT, ON THE CONVICTION OF
HUNTER FOR THE ABUSE OF THE
-- GONZALEZ, WHAT TESTIMONY
WAS THERE THAT ALSO WOULD
SUPPORT HIS ABUSE AT THAT
TIME?
>> THERE WAS TESTIMONY AS I
RECALL JUSTICE BELL, ABOUT
SOME -- I BELIEVE STABBING
OR CUTTING OF THAT BODY I'M
HONESTLY HAVING A HARD TIME
KEEPING IT ALL STRAIGHT WITH
THIS MANY VICTIMS AND THIS
MANY DIFFERENT NAMES.
>> I REALIZE IT IS HARD
ENOUGH TO -- I THINK -- --
I WAS CONCERNED ABOUT
GONZALEZ.
>> SPECIFICALLY OFF THE TOP
--
>> -- WHEN HE CAME IN.
>> YES, SIR, GLEESON --
GLEESON, AS I -- AS I
UNDERSTAND THE EVIDENCE WAS
SEATED CLOSE TO THE FRONT
DOOR IN A RECLINER, SLEEPING
IN THE LIVING ROOM.
APPARENTLY, MR. HUNTER, IF
I'M NOT MIXING VICTIMS'
NAMES UP, KNEW MR. GLEESON
FROM HIGH SCHOOL
MR. GONZALEZ DID NOT LIVE IN
THIS RESIDENCE, WAS -- THE
TESTIMONY SHOWS HE WAS GOING TO BE
PICKED UP BY A COWORKER EARLY
THE FOLLOWING MORNING TO GO
TO A JOB, I BELIEVE A
PAINTING CONTRACTOR.
MR. GONZALEZ QUITE SIMPLY
WAS IN THE WRONG PLACE AT
THE WRONG TIME.
>> MR. GONZALEZ, LIKE A
SECOND VICTIM IN THIS --
THAT MR. HUNTER ASSAULTED.
>> YES, MA'AM, I BELIEVE THAT
IS CORRECT.
>> WHERE WAS THE -- WHERE WAS
THE DEAD BODY YOU KNOW --
KIND OF INCIDENT, DID
HE GO BACK TO LOOK AT THE
BODY AFTER THE DEATH?
>> LET ME FLIP BACK 
INTO MY BRIEF JUST A MINUTE,
JUDGE.
>> ABUSE OF THE DEAD BODY IN
THAT CASE WOULD BE EXCESS
BEATING POSTMORTEM BEATING
OF THE DEFENDANT.
>> MEDICAL EXAMINER SAID THE
VICTIM DIED -- SUFFERED
BLOWS WITH -- INFLICTED
POSTMORTEM?
>> YES, MA'AM.
>> WE HAVE SUBSTANTIAL
PREMORTEM AND POST --
EXCUSE ME PREMORTEM AND
POSTMORTEM INJURIES
INFLICTED ON MR. GONZALEZ,
PAGE 78 OF MY BRIEF IS WHERE
THE TRIAL JUDGE SUMMARIZES
THE MEDICAL EXAMINER'S
TESTIMONY AS TO THAT VICTIM.
I BELIEVE ANOTHER QUESTION,
OR WAS THERE -- MAYBE I WAS
THINKING THERE WAS SOMETHING
ELSE I NEEDED TO CLEAN UP OR
ADDRESS. 
>> TWO QUESTIONS WERE ASKED OF
YOU ON, I THINK BY JUSTICE
QUINCE.
YOU'VE BEEN TALKING
ABOUT THE FIRST ONE.
THE SECOND ONE HAD TO DO WITH
THE AND/OR, SO JUST TO --
>> I DID REMEMBER --
JUSTICE, IT GOES ON, THOUGH
OH --
>> YOU ARE RIGHT THERE, YOU
KNEW THERE WAS ANOTHER
QUESTION. 
>> COULDN'T REMEMBER WHAT IT
WAS.
>> APPRECIATE THAT.
>> GARZON IS OUT OF THIS
COURT, DEALT WITH AND/OR
INSTRUCTION, ONE OF THOSE
THINGS I KNOW I HAVE TOLD
YOU ALL THIS BEFORE I WISH
HE HADN'T DONE IT.
THERE IS A WAY IT COULD HAVE BEEN --
PERHAPS DONE BETTER.
JUSTICE CANTERO I BELIEVE IN GARZON
ARGUMENTS PRETTY WELL
SPELLED OUT WHAT THE TRIAL
JUDGES OUGHT TO DO.
THE FACT
OF THE MATTER IS IN THIS
PARTICULAR CASE IT IS NOT
FUNDAMENTAL ERROR WHEN YOU
STACK UP THE PRINCIPAL
INSTRUCTION, THE --
>> FUNDAMENTAL ERROR CASE OR
--
>> NO. 
>> I'M SAYING WASN'T THERE
AN OBJECTION MADE?
>> THERE WAS AN OBJECTION.
ASSUMING THAT IT WAS
SUFFICIENT, THE OBJECTION BY
THE DEFENDANTS TO THIS
PARTICULAR ISSUE GOT
SOMEWHAT CONFUSED.
>> WELL --
>> I WILL -- I
WILL AGREE THAT HE PRESERVED
IT.
>> --
>> SO THEN, WE ARE TALKING
ABOUT A HARMLESS ERROR NOW, A
LITTLE BIT DIFFERENT FROM
GARZON, AS I RECALL.
>> -- AND IN THIS CASE, WHEN
YOU HAVE THE PRINCIPAL
INSTRUCTION, GIVE THE
INSTRUCTIONS, GIVEN THAT EACH
DEFENDANT IN FACT --IF I CAN
FIND THE PAGE IN MY BRIEF I
CAN CITE THE COURT DIRECTLY
TO IT, BUT THE COURT
INSTRUCTED THE JURY
SPECIFICALLY THAT YOU DON'T
CONVICT ONE DEFENDANT BASED
ON SOMETHING ANOTHER
DEFENDANT DID, UNDER THESE
PARTICULAR FACTS, THAT 
WOULD BE AT VOLUME 41, 3966
THROUGH 67 IS WHERE THE
TRIAL JUDGE INSTRUCTED THE JURY
SPECIFICALLY ABOUT SEPARATE
CRIMES AS TO EACH DEFENDANT.
YOU HAVE IN THIS PARTICULAR
CASE INDIVIDUALIZED JURY
FINDINGS, AS TO EACH
DEFENDANT.
AND THAT'S -- THAT'S WHY I
ATTACHED THE SENTENCING
AWARD TO MY BRIEF.
ONE OF THE
REASONS I ATTACHED IT ON
PAGE ONE AND PAGE TWO
FOOTNOTE ONE AND TWO, JUDGE
PARSONS GAVE US A NICE
MATRIX OF WHAT EACH
DEFENDANT WAS CONVICTED FOR,
WHAT EACH DEFENDANT WAS NOT
CONVICTED FOR, WHAT THE JURY
VOTE WAS, DEATH VERSUS LIFE
AS TO EACH DEFENDANT AND
EACH PARTICULAR VICTIM.
AND WHEN YOU LOOK AT THIS
SENTENCING ORDER AND THIS
BREAKDOWN CERTAINLY UNDISPUTED,
AS TO WHAT THE JURY
DID WITH RESPECT TO EACH
COUNT OF THIS INDICTMENT
THERE IS ABSOLUTELY NO DOUBT
WHEN YOU COUPLE THAT WITH
EVIDENCE,
THE INSTRUCTIONS THE JURY
WAS GIVEN, PUTTING THE AND/OR
CONJUNCTION IN ANY OF THE
JURY INSTRUCTIONS IN ANY WAY
SUBSTANTIALLY AFFECTED
MR. HUNTER'S RIGHTS.
>> GO BACK TO THE STEPSON
ISSUE.
THE STANDARD IS
ABUSE OF DISCRETION.
IN TERMS OF THE ISSUE ON THE
STATEMENT DOES -- IS NOT A
PROBLEM, WHAT OTHER CASES
TALK ABOUT ANTAGONISTIC
DEFENSE, UNDER WHAT
CIRCUMSTANCES DOES ANTAGONISTIC
DEFENSE REQUIRE A SEVERANCE?
>> I'M NOT NECESSARILY
CERTAIN THAT WE HAVE
ANTAGONISTIC DEFENSE IN THIS
CASE. 
>> LET'S ASSUME THAT I WOULD
SAY THAT SOMEBODY SAYING
THEY ARE NOT THERE, AND
ANOTHER PERSON SAYING THAT
-- A-- DOMINATOR, KING --
INCONSISTENT ANTAGONISTIC
DEFENSE, LET'S ASSUME
THAT WHAT IS THE STANDARD
ON -- WHETHER IT SHOULD BE
GRANTED.
>> THE STANDARD, OF COURSE, AT
THE START IS ABUSE OF
DISCRETION -- BASED ON I
BELIEVE FOUR DCA CASES.
WHAT YOU HAVE IN THIS CASE --
AND JUSTICE PARIENTE, LET ME
BACK UP BY SAYING I'M NOT -- I
DON'T RECALL THE
ANTAGONISTIC DEFENSE THEORY
HAVING BEEN RAISED AS A
BASIS FOR GRANTING THE
MOTION TO SEVER, I DON'T
RECALL THAT BEING THE ARGUMENT. 
>> ARE YOU SAYING THEY ARE
GOING TO -- AT -- ISN'T
THAT EQUIVALENT ANTAGONISTIC
DEFENSE?
>> WELL IT WAS FRAMED AND IT
WENT TO THE TRIAL JUDGE,
BASED ON A BUTON BASED
CLAIM.
>> DOESN'T THE RULE ITSELF,
INDICATE THAT IF THERE IS
ANY RISK OF AN UNFAIR TRIAL,
THAT A SEVERANCE SHOULD BE
GRANTED?
>> YES, SIR, THAT IS -- YES,
SIR, IT DOES.
THAT IS WHAT THE
TRIAL COURT IN THIS CASE
DEALT WITH, IN LENGTHY ORDER
I SUBMIT IN MY BRIEF --
>> -- DID SAY THE ONLY RISK
THEY TALKED ABOUT WERE THE
RISKS ABOUT THE STATEMENTS,
THEY DIDN'T TALK ABOUT IF WE
LOOK AT THE MOTION TO SEVERE
WE ARE NOT GOING TO SEE
ANYTHING ABOUT THE DANGER OF
CONFUSION, PREJUDICE HIS *DOOR
GOING TO BE POINTING FINGERS
I JUST NEED TO KNOW THAT
WHAT WE'RE REALLY DEALING HERE
WITH A VERY -- TO ME A VERY
SIGNIFICANT ISSUE, OBVIOUSLY
VERY TRAGIC, SIGNIFICANT
CASE, STILL HAS A DEATH
PENALTY FOR A VERY YOUNG
DEFENDANT WITH NO HISTORY OF
CRIMINAL BEHAVIOR, AND SO I
JUST WANT TO MAKE SURE THAT
WE'VE GOT ALL BASES
COVERED AS WE LOOK AT THIS
CASE.
>> THE TRIAL COURT'S ORDER,
AND THAT IS WHAT I'VE GOT TO
GO BACK TO, BECAUSE I DON'T --
LIKE I SAID, I DON'T REMEMBER
SEEING AN ANTAGONISTIC
DEFENSE ARGUMENT BEING MADE
BELOW.
THE TRIAL COURT'S ORDER, WHICH IS
WHAT SUMMARIZES
PAGE 62 IN MY BRIEF, JUSTICE
PARIENTE THE FOCUS OF THAT,
THE FOCUS WAS STATE HOW
YOU ARE GOING TO DEAL WITH
THESE STATEMENTS, FROM THESE
DEFENDANTS?
AND THE STATE DID THAT, AND
JUDGE PARSON EXPLAINS IT BY
PRESENTING THE TESTIMONY
FROM THE OFFICER THAT TOOK
THE STATEMENTS, RATHER THAN
ATTEMPTING TO PUT IN THE
RECORDED STATEMENTS.
>> THAT WAS WHERE IT WAS
GOING, THAT IS WHAT WE
WERE FOCUSING ON, AND I WOULD
SUGGEST THAT AT THE END.
>> WASN'T THAT, THOUGH -- WHAT'S
SORT OF TROUBLING ME WASN'T THAT
NEGATED BY THE STATE'S
APPROACH TO THE CASE?
IN OTHER WORDS, FROM THE OUTSET,
THE STATE MAKING AN OPENING
STATEMENT TYING ALL OF THIS
TOGETHER?
AND, OF COURSE, I
MEAN IT IS A NATURAL THING.
I'M NOT -- BUT DOESN'T THAT, IN
ESSENCE, NEGATE ANY OF THESE
ATTEMPTS TO TRY TO NARROWLY
PRESENT THESE THINGS, BECAUSE
THE STATE IS DOING ALL THIS
IN THE CONTEXT OF GIVING THE
JURY A COMPLETE PICTURE HERE
OF THIS HORRENDOUS CRIME AND
THEN PRESENTING THE PIECES.
BUT CLEARLY THE JURY WAS
SEEING THE BIG PICTURE ALL
THE TIME, YOU KNOW,
INCLUDING BEING TOLD BY
AND/OR, YOU KNOW, IN THE
INSTRUCTIONS, BUT I'M HAVING
TROUBLE WITH THE EFFICACY OF
ISOLATING THESE THINGS WITH
THESE STATEMENTS.
WHEN YOU ARE TRYING THEM ALL
TOGETHER, AND THE STATE'S
NATURAL APPROACH, IT IS NOT --
IN A SENSE, I CAN'T FAULT
THE STATE, BECAUSE THEY HAVE
BEEN ALLOWED TO TRY CASES
TOGETHER GIVING THE JURY AT
ALL TIMES THE BIG PICTURE.
DIDN'T THAT HAVE REALLY AN
EFFECT OF NEGATING ANY
ATTEMPT TO ISOLATE THESE
CASES BEFORE THIS SAME JURY?
HOW COULD A JURY ISOLATE
THESE STATEMENTS AND THEN
THE CASE WHEN IT'S THE SAME
JURY AND THEY ARE TRYING ALL
OF THESE DEFENDANTS, AND THE
PROSECUTOR IS GIVING THEM
THE BIG PICTURE OR --
>> JUDGE, LET ME PUT IT THIS
WAY, AND I'M -- I'VE GOT A
LITTLE BIT OF TIME HERE, I
CAN TALK FOR A WHILE.
>> YOU KNOW, THIS ISN'T --
ISN'T YOUR FAULT.
I'M JUST SAYING THAT IT IS --
>> WHAT YOU HAVE WHEN YOU
READ THIS RECORD, THE STATE
SPENT A FAIR AMOUNT OF TIME
ESTABLISHING MOTIVE.
WE DON'T NORMALLY DO THAT.
IN THIS CASE MOTIVE WAS IMPORTANT,
THE UNDERLYING MOTIVE BEHIND
THESE MURDERS, THE STATE'S
PRESENTATION OF THESE CASES
WAS FOCUSED AS TO EACH
PARTICULAR DEFENDANT.
NOW I DON'T MEAN -- I DON'T
WANT TO SAY THE STATE HELD
UP A SIGN, SAID, JURY WE ARE
TALKING ABOUT VICTORINO, NOW
JURY WE ARE TALKING ABOUT
HUNTER, NOW, EACH TIME THEY
DID IT, BUT THEY MADE IT VERY
PLAIN AND VERY CLEAR IN
THEIR PRESENTATION OF
EVIDENCE WHICH EVIDENCE
PERTAINED TO WHICH
DEFENDANT.
FOR EXAMPLE, WITH
MR. HUNTER'S, IN MR. HUNTER'S
CASE, IT WAS DNA EVIDENCE,
GENETIC MATERIAL, FROM I
BELIEVE TWO OF THE VICTIMS,
FOUND ON HIS SHOELACES.
THE STATE WAS VERY CLEAR IN
ITS PRESENTATION OF THE DNA
TESTIMONY, WHO WE'RE TALKING
ABOUT.
BECAUSE MY RECOLLECTION OR
MY MEMORY IS THAT THERE IS
ANOTHER GROUP OF DNA
EVIDENCE AS TO
MR. VICTORINO, WHEN I READ
THIS TRANSCRIPT TO WRITE
THIS BRIEF I WASN'T READING
ALL THAT MUCH FOR WHAT WAS
GOING ON IN THE VICTORINO
COMPONENT OF THIS CASE.
THAT IS, YOU KNOW, PROBABLY NEXT
YEAR.
BUT, BE THAT AS IT MAY, THE
STATE'S CASE, THE WAY IT 
WAS PRESENTED WAS PARSING
OUT WHICH DEFENDANT WHICH
EVIDENCE PERTAINED TO.
I WOULD SUGGEST THAT THE
TRIAL COURT DID NOT ABUSE
ITS DISCRETION IN ALLOWING
THESE CASES TO BE TRIED
TOGETHER.
KEEP IN MIND, THAT AT THE
BEGINNING, WE HAD THE FOURTH
DEFENDANT IN THERE, TOO,
KEMP, WHO PLED OUT.
SO --
>> WOULD YOU COMMENT ON THE
ISSUE THAT THE DEFENSE
COUNSEL AT TRIAL RAISED THAT
THE STATE WAS CLAIMING 
WITH THE MAIN DEFENDANT, IF
I CAN REFER TO TORINO IN
THIS CASE, IN HIS CASE THEY
WERE MAKING HIM OUT TO BE
THE ULTIMATE BAD GUY,
RINGLEADER, WHATEVER.
NOW THEY ARE TRYING TO DO THAT SAME
THING WITH MY CLIENT IN
THIS TRIAL.
WAS THAT ARGUMENT ADVANCED
BY DEFENSE COUNSEL?
>> I THINK I SEE THAT IN THE
BRIEF SOMEWHERE IN THE
APPELLATE'S BRIEF. 
>> I'M NOT SURE WHAT I WILL
SAY, AND THE WAY I WILL
ANSWER IT --
>> THIS DEFENDANT, WAS THIS
THE YOUNGEST DEFENDANT?
AND HE DIDN'T HAVE ANY PRIOR
CRIMINAL RECORD?
>> HE DIDN'T HAVE ANY PRIOR
-- EXCUSE ME.
HE HAD NO PRIOR CRIMINAL RECORD.
HOW -- SALAS AND CANNON
WERE ALL ABOUT THE SAME AGE
--
>> 18, 19 ALONG IN THERE,
I'M NOT SURE IF HUNTER WAS
ABSOLUTELY CHRONOLOGICALLY
THE YOUNGEST OR NOT.
I BELIEVE HE PROBABLY IS, BUT I
DON'T KNOW THAT FOR CERTAIN.
THERE -- MY -- AGAIN, I WILL
ADMIT THAT MY WAY OF VIEWING
THEM HAS ALWAYS BEEN THAT
THEY WERE ABOUT THE SAME
AGE, AND I KIND OF --
>> YOU DON'T RECALL THAT
ARGUMENT BY TRIAL COUNSEL?
>> I DON'T RECALL THAT
ARGUMENT, AND --
>> THAT IS ALL RIGHT. 
>> EVEN IF HE DID, THE TRIAL
JUDGE DIDN'T BUY THAT IN
THE SENTENCING ORDER AND,
AGAIN, I HAVE SET OUT SOME
ORDER IN MY BRIEF --
>> DID HE BUY THAT, MR. HUNTER
WAS UNDER THIS SUBSTANTIAL
DOMINATION OF MR. VICTORINO?
>> YES, MA'AM, HE DID, HE
GAVE SOME WEIGHT TO IT, HE
TALKED ABOUT IT FOR THREE
PAGES.
THE COURT SAID -- LET ME -- 
>> WHEN YOU SAID THE JUDGE
DIDN'T BUY IT, WHAT WERE YOU
REFERRING TO?
>> I WAS REFERRING TO THE
STATEMENT BY THE TRIAL COURT
THAT IT IS DOUBTFUL TO
THIS COURT -- THAT REFERRING
TO THE MURDERS WOULD HAVE
EVER OCCURRED WITHOUT
MR. VICTORINO'S INFLUENCE. 
>> THAT IS WHAT I WAS
REFERRING TO WHEN I SAID
THAT, AND THEN GOES ON --
>> THE JUDGE SAID THAT?
>> YES, MA'AM.
>> THERE IS NO QUESTION THAT
VICTORINO WAS THE RINGLEADER.
>> VICTORINO WAS THE DRIVING
FORCE BEHIND THIS.
MR. HUNTER, AS THE TRIAL COURT
FOUND WAS NOT A RECALCITRANT
PARTICIPANT ONCE HE DECIDED
TO SIGN ON FOR WHAT WAS
GOING ON, AND WHAT WAS GOING
ON AMOUNTED TO A S.W.A.T.
TEAM TYPE ASSAULT ON THIS
HOUSE, CLEAR THESE -- FOUR
DEFENDANTS LINED UP OUTSIDE
THE DOOR IN A STACK LIKE A
S.W.A.T. TEAM USES, AND
MR. VICTORINO KICKED THE
DOOR IN, AND MR. HUNTER WAS
THE FIRST ONE IN THE DOOR.
HUNTER WAS A FULL AND ACTIVE
PARTICIPANT IN THIS CRIME
AND I WOULD HONESTY SAY I
HAD AN AWFUL LOT OF TROUBLE
FINDING OTHER CASES THAT
WENT TO THE PROPORTIONALITY
ISSUE, BECAUSE I REALLY HAD
A HARD TIME FINDING ANY THAT
ARE THIS BAD.
>> THE EVIDENCE WAS THAT
THEY HAD ALL BEEN
PREASSIGNED VICTIMS?
>> THEY HAD BEEN PREASSIGNED
POSITIONS IN THE HOUSE.
OR PLACES TO GO WITHIN THE
HOUSE.
>> NOT PARTICULAR VICTIMS?
>> NOT PARTICULAR VICTIMS.
>> WELL, VICTORINO WANTED
TWO PARTICULAR VICTIMS ALL
FOR HIMSELF, AND THOSE ARE
THE TWO THAT MR. HUNTER DID
NOT GIVE A DEATH
RECOMMENDATION FOR AS I
UNDERSTAND THE CRIME SCENE,
AND THE WAY IT PLAYED IN THE
HOUSE, HUNTER WENT IN AND
THE FIRST PERSON HE
ASSAULTED WAS JONATHAN
GLEASON WHO WAS IN THE
RECLINER IN THE LIVING ROOM
NEAR THE FRONT DOOR.
MR. VICTORINO, AS I'M
REMEMBERING IT, ENTERED
BEHIND HUNTER AND BROKE OFF
TO THE RIGHT AS HE ENTERED
THE DOOR, GOING INTO THE
MASTER BEDROOM TO KILL
AARON BALLINGER. 
>> WHAT WAS -- SALAS
DID NOT KILL ANY
VICTIMS?
IN OTHER WORDS, I'M
TRYING TO UNDERSTAND THE
JURY -- DID THEY GAVE LIFE
RECOMMENDATION, THEY GAVE --
EXCUSE ME --A LIFE RECOMMENDATION,
CONVICTED -- I BELIEVE EIGHT
COUNTS CONTAINED IN THE
INDICTMENT, HUNTER WAS
CONVICTED OF 11 COUNTS OUT
OF THE INDICTMENT.
>> HE WAS, BUT JUST WAS ALSO,
WAS PERPETRATOR.
>> YES, MA'AM, SALAS WAS IN
THE HOUSE AS WAS CANNON. 
>> ALL FOUR OF THESE MEN
WERE INSIDE THE HOUSE.
>> HOW DID THE JURY IN TERMS
OF WHAT WOULD HAVE GIVEN
THEM PAUSE, IN TERMS OF
SALAS -- FINDING HIM LIBEL,
FOR THE DEATH PENALTY?
>> THE JURY, AND I DON'T
REMEMBER THE MITIGATION, THE
JURY MUST HAVE -- OBVIOUSLY, DID
NOT CONVICT SALAS OF AS
MANY SEPARATE OFFENSES AS IT
DID VICTORINO AND HUNTER.
HUNTER HAS THE MOST CONVICTIONS.
VICTORINO HAS ONE --
>> WHAT IS THE RACE OF THESE --
THE VICTIMS, AND THIS
DEFENDANT, AND THE
CODEFENDANTS?
>> MR. VICTORINO IS EITHER
BLACK OR HISPANIC, I'M NOT
SURE HOW HE IS LISTED ON THE
CORRECTIONS WEB SITE.
THERE HAS BEEN SOME ALLEGATION
HE'S A LEADER IN THE LATIN KINGS GANG.
THAT WAS NOT ESTABLISHED AT
TRIAL, THERE WAS NO ATTEMPT MADE TO
DO SO.
MR. HUNTER IS AFRICAN-AMERICAN.
MR. SALAS, HUNTER CAUCASIAN.
MR. SALAS MAY HAVE HISPANIC HERITAGE.
I DON'T KNOW THE ANSWER TO
THAT QUESTION.
>> THERE IS SOME EVIDENCE
THAT VICTORINO PICKED
MR. HUNTER BECAUSE HE WAS
AFRICAN-AMERICAN?
>> -- ARE VICTIMS --
>> -- ALL WHITE, WERE
ALL -- HISPANIC --
>> I DIDN'T HEAR YOU.
>> I BELIEVE TWO OR
MAYBE THREE OF THE VICTIMS
WERE HISPANIC, THE REST OF
THEM WERE WHITE, CAUCASIAN
THEY ALL CAUCASIAN AS
FAR AS THAT WOULD GO, I
SUPPOSE, MR. HUNTER AND
MR. VICTORINO WERE -- KIND
OF --

HUNTER, WENT IN, AND THE FIRST
PERSON, HE ASSAULTED WAS
JONATHAN GLEASON, WHO WAS, IN
THE RECLINER IN THE LIVING ROOM
NEAR THE FRONT DOOR. 
MR.^VICTORINO, AS I'M
REMEMBERING IT, ENTERED BEHIND
HUNTER AND BROKE OFF TO THE
RIGHT, AS I ENTERED THE DOOR
GOING INTO THE MASTER BEDROOM
TO KILL ERIN BELANGER. 
>> SALAS DID NOT KILL ANY OF
THE VICTIMS? 
DID THEY GIVE SALAS A LIFE
RECOMMENDATION? 
>> THEY GAVE SALAS A LIFE
RECOMMENDATION. 
SALAS WAS CONVICTED OF THE
EIGHT OF THE COUNTS CONTAINED
IN THE INDICTMENT. 
HUNTER WAS CONVICTED OF 11 COUNTS
OUT OF THE INDICTMENT. 
>> BUT SALAS WAS ALSO, WAS A
PERPETRATOR?
>> YES, MA'AM.
SALAS WAS IN THE HOUSE AS WAS
CANNON. 
ALL FOUR OF THESE MEN WERE
INSIDE THE HOUSE. 
>> HOW DID THE JURY, IN TERMS
OF THE, WHAT WOULD HAVE GIVEN
THEM PAUSE IN TERMS OF SALAS
AND NOT ALSO FINDING HIM LIABLE
FOR THE DEATH PENALTY?
>> JURY, AND I DON'T REMEMBER
THE SALAS MITIGATION. 
THE JURY OBVIOUSLY DID NOT
CONVICT SALAS AS MANY OFFENSES
AS IT DID VICTORINO AND HUNTER.
HUNTER HAS MOST CONVICTIONS. 
VICTORINO HAS ONE LESS. 
>> WHAT IS THE RACE OF THE
VICTIMS AND OF THIS DEFENDANT
AND THE CODEFENDANTS?
>> MR.^VICTORINO IS EITHER
BLACK OR HISPANIC. 
I'M NOT SURE HOW HE IS LISTED
ON DEPARTMENT OF CORRECTIONS
WEB SITE. 
THERE HAS BEEN SOME ALLEGATION
HE IS A LEADER IN THE LATIN
KINGS GANG. 
THAT WAS NOT ESTABLISHED AT
TRIAL. 
NO ATTEMPT MADE TO DO SO. 
MR.^HUNTER IS AFRICAN-AMERICAN.
MR.^SALAS AND MR.^CANNON ARE
BOTH CAUCASIAN. 
MR.^SALAS MAY HAVE HISPANIC
HERITAGE. 
I DON'T KNOW THE ANSWER TO THAT
QUESTION. 
>> THERE SOME EVIDENCE THAT
VICTORINO, PICKED MR.^HUNTER
BECAUSE HE WAS
AFRICAN-AMERICAN?
>> NO. 
>> NO?
>> HUNTER --
>> AND THE VICTIMS --
>> THE VICTIMS WERE EITHER ALL
WHITE OR ALL HISPANIC. 
>> I DIDN'T HEAR YOU?. 
>> THE I BELIEVE TWO OR MAYBE
THREE OF THE VICTIMS WERE
HISPANIC. 
THE REST OF THEM WERE WHITE. 
CAUCASIAN. 
THEY ARE ALL CAUCASIAN
AS FAR AS THAT WOULD GO. 
MR.^HUNTER AND MR.^VICTORINO
WERE, TO PUT IT KIND OF
BLUNTLY, RUNNING BUDDIES. 
THEY HAD BEEN HANGING TOGETHER
FOR A WHILE. 
THEY WERE FRIENDS. 
THEY WERE BUDDIES. 
THEY HAD KNOWN EACH OTHER FOR A
WHILE. 
SALAS AND CANNON KIND OF CAME
INTO THIS, LATE IN THE DAY. 
IT WAS HUNTER AND VICTORINO
THAT HAD --
>> RUNNING TOGETHER?
>> YES, MA'AM.
HUNTER AND VICTORINO WERE THE
TWO THAT HAD THE REAL MOTIVE
BEHIND THIS AS FAR AS, WE'RE
GOING TO DO THIS TO GET OUR
THINGS BACK THAT THESE PEOPLE
TOOK AWAY FROM US WHEN THEY
KICKED US OUT OF THE HOUSE WE
SQUATTED IN. 
CANNON AND SALAS WERE SORT OF
BROUGHT INTO IT KIND OF TAGGING
ALONG IF YOU WILL. 
CANNON HAD A CAR. 
>> DID MR.^SALAS ENGAGE IN THE
BEATINGS TO THE EXTENT OF THE
OTHER TWO?
>> I DON'T BELIEVE SO. 
>> DIFFERENCE IN NATURE OF THE
PARTICIPATION?
>> YES, SIR. 
DIFFERENCE IN THE EXTENT OF
PARTICIPATION, I BELIEVE THERE
WAS A DIFFERENCE IN THE
MITIGATION PRESENTED. 
I DON'T REMEMBER THAT. 
>> I JUST WANT TO MAKE SURE,
BUT HE DEFINITELY BEAT AND
KILLED SOME OF THE VICTIMS?
MR.^SALAS?
>> WHETHER SALAS ACTUALLY
STRUCK A FATAL BLOW I CAN'T
TELL YOU OFF THE TOP OF MY
HEAD. 
HE WAS INVOLVED SWINGING A BAT
INSIDE THE HOUSE. 
YOU I CAN TELL YOU THAT.
OF COURSE --
>> THEY HAD ALL HAD BATS. 
>> YES, MA'AM. 
THEY HAD ALL ALUMINUM BASEBALL
BATS. 
>> THERE WAS BLOOD OR NOT BLOOD
ON ALL OF THEM OR SOME KIND OF
GENETIC MATERIAL?
>> THE BATS WERE FOUND IN A
RETENTION POND. 
SO THEY HAD BEEN SITTING IN THE
WAR, -- WATER, I BELIEVE THERE
WAS SOME GENETIC MATERIAL OF
SOME SORT LIMITED VALUE FOUND
ON ONE OF THE BATS. 
BUT, FOR THE MOST PART, IT WAS
NOTHING, SIGNIFICANT GAINED AS
FAR AS TECHNICAL EVIDENCE FROM
THE BATS BECAUSE THEY WERE
RECOVERED OUT OF WATER. 
>> WAS THERE MATERIAL ON THE
BOOTS AND MATERIAL ON THE
SHOESTRINGS?
>> YES, SIR. 
THERE WAS GENETIC MATERIAL ON
THE SHOELACES AND I BELIEVE
ALSO ON THE TONGUE OF HUNTER'S
SNEAKERS. 
VICTORINO'S BOOTS THAT'S
ANOTHER ISSUE, SEPARATE BUT OF
COURSE YES THERE WAS IN THAT AS
WELL I BELIEVE. 
JUSTICE CANTERO. 
>> SALAS, I THOUGHT HE
ORIGINALLY PLED GUILTY?
HE TESTIFIED AS HE SAID HE WAS
NOT GUILTY. 
>> THAT'S CANNON. 
>> THAT'S CANNON?
>> THAT'S CANNON, YES, SIR. 
>> BUT HIS GUILTY PLEA WAS
STILL ENFORCED? 
>> LAST I HEARD. 
I HAVE NOT SEEN ANYTHING OR AM
UNAWARE OF ANYTHING COMING IN
ABOUT MR.^CANNON, I KNOW HE HAD
SOUGHT AND MOVED TO WITHDRAW
HIS GUILTY PLEA. 
THAT MOTION WAS DENIED. 
AND I HAVE NOT BEEN AWARE OF
ANYTHING HAPPENING SINCE THEN. 
NOT TO SAY THAT IT HASN'T. 
BUT IF IT HAS I DON'T KNOW
ABOUT IT. 
>> UNLESS THERE ARE OTHER
QUESTIONS YOU'VE NOW UTILIZED
ALL OF YOUR TIME. 
>> THANK YOU, YOUR HONOR. 
I ASK THAT THE CONVICTION AND
SENTENCES BE AFFIRMED. 
>> REBUTTAL. 
>> I HAVE NOTHING FURTHER
UNLESS THERE IS ANY QUESTIONS?
>> THE COURT WILL TAKE ITS
MORNING RECESS. 
TAKE THIS CASE UNDER
ADVISEMENT. 
>> PLEASE RISE.