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.
Wayne Thomkins v. State of Florida
SC06-277
77 77
>> ALL RISE.
HEAR HEAR.
THE SUPREME COURT OF THE
STATE OF FLORIDA IS NOW IN
SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NEAR,
GIVE ATTENTION, AND YOU
SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA
AND THIS HONORABLE COURT.
>> GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING, FRIENDS AND
WELCOME TO THE ORAL ARGUMENT
SCHEDULE FOR MONDAY MARCH 5,
2007.
WE'RE PLEASED THIS MORNING
TO HAVE WITH US STUDENTS AND
THE FACULTY I ASSUME FROM
BROWARD COMMUNITY COLLEGE.
ARE YOU HERE?
WE'RE GLAD YOU'RE HERE.
THANK YOU FOR JOINING US
THIS MORNING.
A COUPLE OF HOUSEKEEPING
MATTERS BEFORE WE PROCEED
WITH OUR FIRST CASE.
THE ORDER OF THE LAST TWO
CASES, THE CASE THREE WILL
BE HEARD LAST ON THE
CALENDAR THIS MORNING AND
CASE NUMBER 4 WILL BE HEARD
IMMEDIATELY AFTER OUR
MORNING RECESS FOR COUNSEL
THAT IS PREPARED FOR THAT.
WITH THAT LET'S PROCEED TO
OUR FIRST CASE THE CASE OF
TOMPKINS VERSUS STATE OF
FLORIDA.
>> MAY IT PLEASE THE COURT
COUNSEL FOR THE RECORD I'M
MARTIN McCLAIN.
I'M HERE ON BEHALF OF WAYNE
TOMPKINS AND HIS APPEAL FROM
THE DENIAL OF HIS --
>> I BELIEVE WE'RE HAVING A
LITTLE BIT OF TROUBLE HERE.
IT'S USUALLY NOT A COMPLAINT
ABOUT ME.
THANK YOU.
VERY SOFT THIS MORNING.
>> WELL, I WILL GET-GOING
HERE.
IN THE 3.850
SPEND -- PENDING BEFORE THE
COURT THE CLAIM IS A BRADY
VIOLATION.
AND THE BRADY VIOLATION
SPECIFICALLY RELATES TO THE
POLICE REPORT THAT WAS
DISCLOSED IN 2001 THAT
CONTAINED THE INTERVIEWS OF
MARINE SWEENEY AND MIKE
WILLIS.
IN THOSE INTERVIEWS THERE
WAS A DISCUSSION ABOUT
CONVERSATIONS BOTH OF THOSE
INDIVIDUALS THAT HAD WITH
JUNIOR DAVIS OR JAMES
DAVISER IS HIS FORMAL NAME.
AS YOU DO THIS.
>> YES.
BECAUSE I KNOW ANOTHER
MOTION WILL BE INVOLVED
WITH.
SOMETIMES IT'S BRADY.
JONES STANDARD.
ISN'T THE ISSUE BEFORE US
TODAY WHETHER THERE SHOULD
BE AN EVIDENTIARY HEARING ON
WHETHER THERE'S AN AFFIDAVIT
MR. STEVENS INCURRED!!!!!!!!!!!!!!!!
INCURRED -- -- INCURRED IN
A EVIDENTIARY HEARING.
>> THAT'S THE QUESTION
WHETHER THERE SHOULD BE A
EVIDENTIARY HEARING ON THE
AFFIDAVIT OBTAINED FROM
JAMES DAVIS JUNIOR IN APRIL
OF 2002.
BUT THE AFFIDAVIT RELATES TO
AN UNDERLYING BRADY CLAIM.
A BRADY CLAIM WAS PRESENTED
IN 2001 AFTER THE POLICE
REPORT WAS DISCLOSED.
AT THAT POINT IN TIME IN
2001 JAMES DAVIS JUNIOR
OFTEN KNOWN AS JUNIOR DAVIS
COULDN'T BE LOCATED.
OUR COUNSEL -- THERE WAS A
WARRENT IN 2001 A STAY OF
EXECUTION.
THERE WAS AN APPEAL FROM THE
PRIOR 3.850 AND WHILE THAT
APPEAL WAS
SPENDING -- PENDING WE WERE
ABLE TO LOCATE MR. DAVIS.
AND WE OBTAINED AN AFFIDAVIT
FROM HIM.
THE AFFIDAVIT IS AS SOON AS
WE FOUND HIM APRIL OF 2002
AND AT THAT POINT IN TIME WE
FILED A MOTION TO RELINGUISH
THE APPEAL THAT WAS PENDING
BEFORE THIS COURT AND SOUGHT
TO PRESENT THE AFFIDAVIT IN
A 3.850.
ALL OF THAT GOT DELAYED.
THIS COURT AT THAT POINT IN
TIME DIDN'T WANT TO
RELINGUISH.
AS SOON AS THE CASE GOT BACK
TO THE CIRCUIT COURT, THAT'S
WHEN WE WENT FORWARD WITH
THE AFFIDAVIT FOR MR. DAVIS.
THE AFFIDAVIT SHOWS THAT HAD
THE INFORMATION MARINE
SWEENEY AND MIKE WILLIS
KNOWN HAD -- AND REVEALED TO
THE STATE AND DISCLOSED TO
THE DEFENSE ATTORNEY HE
WOULD HAVE SHOWN THAT
MR. DAVIS KNEW SOMETHING.
ACCORDING TO THEIR
STATEMENTS MR. DAVIS WAS
VERY DISTRAUGHT OVER THE
DISAPPEARANCE OF THE CAR.
HE INDICATE HE HAD MADE
REPEATED EFFORTS TO TRY TO
FIND HER AND TO TALK TO HER
FAMILY.
AND THAT HE WAS VERY HURT
BECAUSE HIS UNDERSTANDING AT
THE TIME THAT SHE RUN AWAY
HAD -- AND HAD GIVEN HIM NO
INFORMATION AND NEVER
CONTACTED HIM.
AND SO THAT HE WAS DONE WITH
THE FAMILY.
THAT INFORMATION IS
GLARINGLY INCONSISTENT WITH
WHAT STEVENS SAID ABOUT
ABOUT WHAT BARBARA DECARR
SAID ABOUT HIM.
I'M UNDERSTANDING THIS AS
BEING.
>> I'M UNDERSTANDING THIS AS
BEING IMPEACHMENT OF ONE OF
THE WITNESSES KATHY STEVENS.
IS IT MORE THAN ONE OF
ASPECT OR HER TESTIMONY?
>> I WILL BE HAPPY TO TAKE
THE ALLEGATIONS AS TRUE THAT
SHE'S THE ONE THAT SAW
MR. TOMPKINS ON SEVERAL
OCCASIONS BEFORE AND
THEN -- THEN ON THE DAY OF
FIGHT OR SEXUAL SITUATION
WITH THE VICTIM.
IS THAT AFFIDAVIT MORE THAN
JUST IMPEACHMENT THAT SHE
SAW JUNIOR EVEN --
[INAUDIBLE]
>> YES.
ON THE DAY --
>> ON ONE LEVEL, YOUR HONOR
THAT'S WHAT IT IS.
IT IS IMPEACHMENT.
BUT BECAUSE THERE'S ALSO A
QUESTION OF DILIGENCE IT'S
ALSO IMPORTANT TO NOTE IT'S
INCONSISTENT WITH WHAT
BARBARA DECARR INDICATED.
>> LET'S ASSUME YOU GET OVER
THE FIRST HURDLE.
I'M CONCERNED ABOUT
HOW -- EVEN IN THE LIGHT
MOST FAVORABLE TO YOUR
CLIENT, HOW THIS SURVIVE
JOANS THAT THERE WOULD BE A
PROBABILITY OF AN ACQUITTAL
ON TRIAL?
>> FIRST YOUR HONOR I
DISAGREE JOANS WITH THE
STANDARD.
I SUBMIT BRADY IS STANDARD
AND THE QUESTION IS WHETHER
THAT UNDERMINES COMPETENCE
AND REASONABLE OF DIFFERENT
SKWROEUTCOM WHICH IS MORE
LIKELY THAN NOT.
BUT GIVEN THAT, KATHY
STEVENS ACCORDING TO THE
CLOSING ARGUMENT AT TRIAL
WAS THE LINCHPIN OF THE
CASE.
HE INDICATED THE CONVICTION
COULD BE BASED ON HER
TESTIMONY ALONE.
AND WHAT'S IMPORTANT TO
NOTE -- KNOW IS NOT JUST
WHAT JUNIOR SAVES SAID PUT
WHAT JUNIOR SAVES DAY IN
CONJUNCTION WITH WHAT WAS
PREVENTED IN 1989 AND 2001.
KATHY STEVENS HAD AN
IMPORTANT ROLE IN THE
HISTORY OF THE CASE IN THAT
SHE WAS WITH LISA DECARR ON
MARCH 23rd WHEN THEY WERE
CAUGHT SMOKING OFF CAMPUS.
THEY WERE SUSPENDED FROM
SCHOOL AND EXPELLED.
THE SCHOOL RECORDS WHICH
WERE DISCLOSED INDICATED THE
PATIENTS CAME AND GOT THEM
ON MARCH 23rd.
ACCORDING TO WHAT KATHY
STEVENS TESTIFIED TO IN
TRIAL SHE GO TO LISA
DECARR'S HOUSE THEY TALKED
ABOUT RUNNING TOGETHER
BECAUSE THEY WERE SO UPSET
ABOUT THE SCHOOL SUSPENSION.
THIS IS NOT WHAT SHE
ORIGINALLY SAID.
WHAT SHE ORIGINALLY SAID AT
THE TIME WAS THAT LISA
WARREN AWAY BECAUSE SHE WAS
PREGNANT.
LET'S MAKE SURE THAT
TESTIMONY IF SHE HAD GIVEN
SOMETHING WALL STREET
TKWEUPBT -- DIFFERENT AT THE
TIME AND THEN SUBSEQUENTLY
CAME FORWARD, THAT WAS ALL
KNOWN AT THE FIRST TRIAL.
>> AT THE TIME OF THE TRIAL
SHE ACKNOWLEDGED THAT SHE
HAD ORIGINALLY TOLD EVERYONE
THAT LISA RAN AWAY BECAUSE
SHE WAS PREGNANT.
AND SO THAT DID COME OUT.
WHAT DID NOT COME OUT WHICH
IS SIGNIFICANT AND ALSO
EVALUATING MR. DAVIS
TESTIMONY IS THAT THERE WERE
TWO MEMORANDUMS IN THE
PROSECUTOR'S FILE FROM HIS
INTERVIEWS OF KATHY STEVENS
IN MARCH OF 195.
THESE MEMORANDUMS INDICATED
THAT WHEN HE FIRST BROUGHT
HER IN TO INTERVIEW HER SHE
STUCK TO HER STORY.
SHE SAID LISA RAN AWAY
BECAUSE SHE WAS PREGNANT.
AND THAT AT THE END OF THAT
INTERVIEW SHE WAS
MAINTAINING THAT.
AND THEN FOR THE WEEKEND SHE
CALLED BACK AND THEN SHE
CHANGED HER STORY.
TO SOMETHING SIMILAR TO THE
NEW VERSION ALTHOUGH THE
VERSION WAS DIFFERENT IN THE
MEMORANDUM THAT MR. BINITA
HAD.
THOSE MEMORANDUMS THAT WERE
ESTABLISHED WERE NOT
DISCLOSED.
>> AND THAT WE DEALT WITH IN
THE LAST --
>> AND THIS COURT DEALT WITH
TO TO THE EXTENT THAT THIS
COURT DIDN'T FIND THAT ALONE
UNDERMINES CONFIDENCE IN THE
OUTCOME.
AND SO THAT'S GOT TO BE
CONSIDERED IN CONTEMPLATE
SKRUFRPBGS WITH MR. DAVIS.
AND WHAT MR. DAVIS ASKED IS
THAT ARSTEVENS TESTIFIED AT
THE TIME OF TRIAL THAT AFTER
SEEING LISA DECARR IN THE
HOUSE IN HER HOUSE AT
APPROXIMATELY 9:00 A.M.,
BEING SEXUALLY ASSAULTED BY
WAYNE TOMPKINS AND OFFER
LISA DECARR YELLED AT HIM,
GO GET HELP.
CALL THE POLICE.
KATHY STEVENS LEFT FROM
HEARING THAT, WENT TO THE
CONVENIENT STORE NEARBY.
RAN INTO JUNIOR DAVIS AND
TOLD HIM WHAT WAS GOING ON.
>> DID SHE TESTIFY AT TRIAL
SHE HAD ACTUALLY SEEN HIM ON
CROSS-EXAMINATION EARLY
YESER IN THE MORNING?
>> SHEDY INDICATE THERE HAD
BEEN AN ENCOUNTER WITH HIM
AT 6:00 A.M. AT THE
CONVENIENT STORE WHEN HE
APPEARED TO BE DRUNK.
>> DID SHE TESTIFY THERE WAS
TWO ENCOUNTER KWS HIM?
>> YES.
BECAUSE SHE SAYS ORTESTIMONY
IS THAT BECAUSE JUNIOR DAVIS
DIDN'T THINK IT WAS
SIGNIFICANT THAT'S WHY I
NEVER CONTACTED THE POLICE.
DESPITE LISA DECARR'S PLEA
THAT SHE CONTACT THE POLICE.
>> HELP ME OUT HERE.
YOU SAY THAT KATHY STEVENS
WAS THE CRITICAL WITNESS.
>> YES.
>> AND WE KNOW HER
CREDIBILITY IS IMPORTANT.
>> YES.
>> YOU KNEW ABOUT THE
BOYFRIEND AT THE TIME SHE
TESTIFIED; RIGHT?
>> SHE MENTIONED HIS NAME IN
HER TESTIMONY, YES.
>> WHAT IN THE RECORD GIVES
US -- WHAT DOES THE RECORD
SHOW AS TO WHAT EFFORT WAS
MADE BY THE DEFENSE TO FIND
AND DEMOST AND BRING JUNIOR
DAVIS IN AS A WITNESS.
>> JUNIOR DAVISES' NAME
LIVED AS JUNIOR DAVIS IS
MENTIONED IN A POLICE REPORT
FROM 1984.
IN THAT POLICE REPORT THE
POLICE OFFICER INDICATES HE
HAS NO PHFGS.
THAT'S ALL THAT APPEARS.
JUNIOR DAVIS INTERVIEW HAS
NO INFORMATION.
BARBARA DECARR ALSO SAY THAT
JUNIOR DAVIS DIDN'T SEEM TO
BE THAT UPSET.
THAT'S THE INFORMATION.
>> I MEAN FROM THE
DEFENDANTS.
THE DEFENDANT NEW THAT
JUNIOR DAVIS WAS THE
VICTIM'S BOYFRIEND.
>> CORRECT.
>> AND THAT THEY HAD FAULT.
ACCORDING TO THE DEPOSITION.
WASN'T THERE SOME TESTIMONY
FROM MR. STEVENS THAT THEY
HAD ARGUED?
>> NO -- I DON'T BELIEVE
FROM KATHY STEVENS.
AS I RECALL FROM HER TRIAL
TESTIMONY THAT SHE INDICATED
SHE WAS NOT AWARE OF ANY
FIGHT.
SHE SAID, ON OCCASION THEY
WOULD HAVE BRIEF ARGUMENTS
BUT WITHIN FIVE MINUTES IT
WAS OVER.
>> AT LEAST WE KNOW THAT SHE
SAYS THAT SHE CALLED JUNIOR
DAVIS.
WHY WOULDN'T THAT BE THE
WITNESS OF THE DEFENSE KNEW
ABOUT AND COULD
HAVE -- FIRST, YOUR HONOR.
I DID SEE IN THE ALTERNATIVE
AS BOTH BRADY AND
INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL AND FAILING TO
CONTRACT JUNIOR DAVIS.
BUT THE STATE'S RESPONSE AND
THEIR ANSWER BRIEF IS AS TO
THE INEFFECTIVENESS CLAIM
THEY SAID THERE'S NOTTING
THERE TO CAUSE A DEFENSE
ATTORNEY TO CONTACT JUNIOR
DAVIS.
PAGE 31 OF THE ANSWER BRIEF
"TRIAL COUNSEL CAN'T BE
DEEMED INEFFECT THETIVE TO
PERCEIVE JUNIOR DAVIS AS A
WITNESS" IN ADDITION TO THE
POLICE REPORT AND TAKING HIS
DEPOSITION WHICH ELICITED
DAVIS HAD NO INFORMATION
ABOUT LISA DISAPPEARANCE OR
DEATH TRIAL COUNSEL HAD
REPORT FROM DETECTIVE BYRD
OF JUNE 5th, 1984 THAT
BARBARA DECARR STATED WHEN
SHE TOLD THE BOYFRIEND LISA
WAS MISSING HE DIDN'T SEEM
TO BE CONCERNED.
WHAT THE DEFENSE ATTORNEY AT
ANY TIME HAVE ARE THE POLICE
REPORTS THAT HAD THE
INTERVIEW OF MARINE SWEENEY
AND MIKE WILLIS WHICH GAVE A
COMPLETELY DIFFERENT ACCOUNT
OR DESCRIPTION OF JUNIOR
DAVIS' REACTION TO
DISAPPEARANCE OF LISS
ADECARR.
AND IF THAT REPORT DIDN'T
SERVICE UNTIL 2001, THAT
PRECIP TATED LOOKING FOR HIM
AGAIN IN 2001.
FOR THE RECORD, WE DID PLEA
AGAIN THAT IN 1989 WHEN CCR
GOT THIS CASE UNDER WARRENT
WE MADE AN EFFORT TO FIND
JUNIOR DAVIS BECAUSE HIS
NAME IS MENTIONED.
AT THAT POINT IN TIME WE
CALLED THE PHONE NUMBER THAT
WAS LISTED IN THE POLICE
REPORT AND YOU WERE TOLD
THERE WAS NO DAVIS AT THAT
PHONE NUMBER.
AND WE DIDN'T HAVE THE
RESOURCES BACK IN 1989 TO DO
THE COMPUTER SEARCHES THAT
CAN BE DONE NOW.
WE MADE AN EFFORT TO LOCATE
HIM.
WE PLEADED THAT.
BUT THERE WAS NOTHING BEYOND
HIS NAME AS MENTIONED.
AND THE POLICE SAYING THAT
HE HAD NO SIGNIFICANT
INFORMATION TO CAUSE US TO
BELIEVE THAT THERE WAS
SOMETHING THERE.
AND AS THE STATE SAID IN THE
ANSWER BRIEF TRIAL
COUNCIL -- COUNSELS CAN'T BE
DEFICIENT IN HIS PERFORMANCE
BECAUSE THERE WAS NOTHING TO
REALLY CAUSE HIM TO BELIEVE
THAT JUNIOR DAVIS HAD ANY
SIGNIFICANT INFORMATION.
EVERYTHING INDICATED THE
CONTRARY.
SO FIRST, THE CAR WAS
DISPOSED OF IN 2001.
AND THE STATE IN THEIR
ANSWER BRIEF SUPPORTS THAT.
AS TO WHAT'S SIGNIFICANT
THOSE POLICE REPORTS WHICH
PROVIDE INFORMATION THAT
MAKES JUNIOR DAVIS
SIGNIFICANT AND THEN WE
CONTACTED JUNIOR DAVIS,
JUNIOR DAVIS SAYS THAT
DIDN'T JOE CURE.
HAD SOMEONE COME TO HIM AND
SAID THESE ARE THE -- LISA
DECARR WAS BEING ATTACKED
AND ASKED THE POLICE BE
CALLED HE WOULD HAVE DONE
SOMETHING.
>> IT'S STILL GOING BACK TO
MY CONCERN, WHICH IS THAT IT
WOULD BE IMPEACHMENT OF ONE
OF THREE WITNESSES OF THE
STATE.
THAT'S -- THAT DOESN'T
INDEPENDENTLY POINT TO
ANOTHER PERSON AS BEING
PERPETRATOR OF THIS MURDER
AND IT DOESN'T PROVIDE IN
ITSELF INFORMATION THAT
WOULD LEAD TO AN ACQUITTAL.
IT WOULD BE THE QUESTION OF
IMPOSED ON WHAT KATHY
STEVENS TESTIFIED AT TRIAL
WHETHER THAT IMPEACHMENT
IS -- WOULD SO DESTROY HER
CREDIT THABL THE JURY
COULDN'T HAVE BELIEVED
ANYTHING SHE SAID.
ISN'T THAT HOW WE HAVE TO
LOOK AT IT?
>> NOT QUITE.
AS TO ONE ASPECT THERE WAS
BRADY MATERIAL PRESENTED IN
1989 FOR BARBARA DECARR.
AT THAT TIME IT WASN'T FOUND
TO BE MATERIAL IN THE SENSE
IT BY ITSELF WASN'T
SUFFICIENT TO UNDERMINE
CONFIDENCE IN THE OUTCOME IN
AT THIS POINT IN TIME THAT
HAS TO BE
EVALUATE -- EVALUATED
CUMULATIVELY.
THE BRADY MATERIAL HAD BEEN
PLED AS TO THE OTHER TWO
WITNESSES THAT NEEDS TO BE
EVALUATED UNDER THE STANDARD
IN THE STATE.
BUT BEYOND THAT AS TO KATHY
STEVENS, THE STATE SAYS,
WELL, IT CAME OUT AT TRIAL
SHE HAD LIED.
WHAT SHE HAD LIED ABOUT
ACCORDING TO HER TESTIMONY
WAS THAT SHE HAD FABRICATED
THE STORY BECAUSE SHE
THOUGHT LISA HAD RUN AWAY.
THAT WAS CONSISTENT WITH
LISA RUNNING A AWAY.
AND WHAT JUNIOR DAVIS'
TESTIMONY PROVIDES IS AN
INDICATION THAT HER NEW
STORE WORRY THAT STORY AT
TRIAL SHE WAS SAYING WAS
TRUE HAD FALSE INFORMATION
IN IT.
AND IT'S SIGNIFICANTLY
FALSE.
BECAUSE HER EXPLANATION FOR
WHY SHE WOULD HAVE DONE THIS
IS BECAUSE HER -- LISA
DECARR'S BOYFRIEND WASN'T
CONCERNED.
AND REMEMBER --
>> IT'S NOT QUITE WHAT SHE
SAID.
SHE SAID WHY DIDN'T YOU CALL
THE POLICE.
I GUESS I WAS A LITTLE BIT
SCARED AND NOT KNOWING WHAT
TO EXPECT WHEN THEY GOT
THERE.
I JUST TOLD YOU JUNIOR NO
WHAT WAS GOING ON.
HE WALKED AWAY LIKE IT WAS
NOT IMAGE.
I JUST KIND OF SCARED AND
WENT TO SCHOOL.
YOU DECIDED NOT TO GET UP
INVOLVED.
>> YES.
>> IT'S NOT QUITE THAT SHE
ONLY DIDN'T SAY ANYTHING
BECAUSER DAVIS DIDN'T.
ISN'T THAT CORRECT?
>> THERE'S TESTIMONY TO THAT
EFFECT.
BUT I BELIEVE I -- I DON'T
REMEMBER WHETHER YOU ARE
READING FROM CROSS OR
REDIRECT OR THE DIRECT.
BUT AT DIFFERENT TIMES THE
SIGNIFICANCE OF JUNIOR DAVIS
MAY HAVE WAXED AND WAYNED A
LITTLE BIT.
IT IS IMPORTANT TO HER STORY
THAT SHE GOES TO HIM AFTER
LISA HAS SAID TO CALL THE
POLICE AND HE DOESN'T SEEM
TO BE CONCERNED.
AND THAT'S THE TURNING POINT
IN HER VERSION OF THE EVENTS
AS TO WHEN SHE NO LONGER
PURSUES IT.
>> THAT SEEMS SOMEWHAT
INCREDIBLE STATEMENT TO ME.
FROM THE SERVICE.
THE DEFENSE COUNSEL JUMP ON
THAT.
>> THE DEFENSE
COUNSEL -- ATTEMPTED TO.
BUT I SUBMIT HE DIDN'T HAVE
ALL THE TOOLS TO GO FURTHER.
IN ADDITION WHAT THE DEFENSE
DIDN'T KNOW WHICH CAME OUT
IN THE MEMORANDUM IN 1989
ASKED THAT WE INTERVIEW BARB
KATHY STEVENS IN 199 AND
DURING THE INTERVIEW SHE
REVEALED WHAT HAPPENED THAT
WEEKEND BEFORE SHE CHANGED
HER STORY WAS THAT SHE HAD A
BOYFRIEND IN JAIL AND SHE
WANTED TO GET IN TO SEE HIM.
MR. BO ANY -- BONITA MADE
ARRANGEMENT FOR HER TO BE
ABLE TO SEE THE BOYFRIEND.
KATHY STEVENS REMEMBERED IN
CONTACT WAS IN AN
EMOTIONALLY TROUBLED CLASS
WITH LISA DECARR.
THEY WERE BOTH EMOTIONALLY
TROUBLED STUDENTS WITH
PROBLEMS.
IT SEEMS THAT IN ORDER TO BE
ABLE TO FULLY CONVEY THAT
THIS GIRL WHO IS CLAIM I
THINK SHE SAW THIS ATTACK,
AT THE TIME THAT THE MURDER
WAS OCCURRING, THE STORY WAS
JUST NOT TRUE.
AND THE BEST WAY TO DO THAT
WAS TO SHOW THAT SOME ASPECT
OF IT WE CAN SHOW WASN'T
TRUE.
FOR CONVERSATION WITH JUNIOR
DAVIS DIDN'T HAPPEN.
>> ARE THERE OTHER THINGS?
DIDN'T SHE SAY THERE WAS
SOMEBODY WATCHING IT WHILE
IT WAS OCCURRING?
>> ABSOLUTELY.
HE DID SAY THAT.
DID SHE SAY ANOTHER FRIEND
CALLED HER AFTERWARDS?
>> YEAH.
BUT, AGAIN, TRIAL COUNSEL
DIDN'T HAVE BONITA'S
MEMORANDUM WHICH GAVE
DIFFERENT VERSIONS OF THE
EVENT.
THE MEMORANDUM WHEN SHE
INITIALLY TOLD THE STORY SHE
NEVER MENTIONED THE THIRD
PERSON BEING PRESENT AND
THAT MEMORANDUM SHE HAS THE
ORDER OF THE TRIPS AND WHO
WAS PRESENT TO THE DIFFERENT
TRIPS DIFFERENT A AND SHE
SAID IN THAT MEMORANDUM SHE
NEVER SPOKE TO WAYNE
TOMPKINS HERSELF.
THEN AT THE TRIAL THAT FLIPS
AGAIN TRIAL COUNSEL DID HAVE
THAT MEMORANDUM FROM MARCH
OF 1985 AT THE TIME OF
TRIAL.
YOU'RE WELL INTO YOUR
REBUTTAL.
I WOULD LIKE TO RESERVE THE
REST OF MY TIME.
>> THANK YOU.
>> MAY IT PLEASE THE COURT.
I'M BOB LANDRY REPRESENTING
THE STATE.
THE TRIAL COURT FOUND ON
THIS LATEST POST CONVICTION
LIT TKPAEUGS.
>> WOULD YOU PULL THE
MICROPHONE DOWN A LITTLE
BIT.
>> THE TRIAL COURT FOUND
THAT MR. DAVIS WAS KNOWN TO
THE DEFENDANT AS FAR BACK AS
1989 AS FAR BACK AT THE TIME
OF TRIAL IN 194 AND 985.
--
>> WELL AS FAR AS THIS IS
SUMMARY DENIAL.
>> YES, MA'AM.
>> IF WE WILL GET INTO WHAT
THE TRIAL COURT FOUND, DON'T
WE HAVE TO REALLY TAKE THIS
INTO LIGHT MOST FAVORABLY TO
THE DEFENDANT AND HAVE -- DO
IT ON SOMETHING LIKE A TIME
BAR OR HAVE AN EVIDENTIARY
HEARING ON THIS?
>> NOT FOR THIS PARTICULAR
FACT.
BECAUSE IT'S A MATTER OF
RECORD IN THE FILES.
THE -- FOR EXAMPLE GOING TO
HIS CLAIM OF THE BRADY
VIOLATION THE STATE DID NOT
WITHHOLD OR SUPPRESS ANY
INFORMATION.
MR. DAVIS GAVE A STATEMENT
TO DETECTIVE BETTER -- BURKE
IN WHICH HE SAID -- BURKE
INTERVIEWED HIM AND THE
INFORMATION IN THAT WAS HE
DIDN'T KNOW ANYTHING ABOUT
HER DISAPPEARANCE IN THE
LAST TIME HE HAD SEEN LISA
WAS A WEEK BEFORE HAND AND
THAT INFORMATION WAS GIVEN
TO THE DEFENSE.
AT THE TIME OF TRIAL KATHY
STEVENS CAME FORWARD AND
GAVE HER STATEMENT ABOUT HER
RECK HREBGION OF SEEING!!!!!!!!!!!!
SEEING -- RECOLLECTION OF
SEEING JUNIOR DAVIS AT THE
CONVENIENT STORE.
SHE WAS CROSS-EXAMINED.
EVERYBODY KNEW AT THE TIME
OF TRIAL AND EVEN BEFORE
TRIAL WHO JUNIOR DAVIS, WHAT
HIS RELATIONSHIP WAS TO
EVERYBODY AND IF THE DEFENSE
WANTED TO GO OFF AND
INTERVIEW HIM.
THEY COULD.
THE COMPLAINT I GUESS THAT
THE DEFENSE IS MAKING HERE
IS THAT THE STATE
NEVER -- THE STATE SOMEHOW
SUPPRESSED OR WITHHELD
JUNIOR DAVIS.
I DON'T SEE HOW THAT
HAPPENED.
I THINK THAT WHAT IF I'M
UNDERSTANDING IS THAT THIS
GOES BACK TOCK THE INTERVIEW
WITH SWEENEY AND WILLI IS
THAT WOULD HAVE PAVED
THE -- MADE THE DEFENSE KNOW
THAT JUNIOR DAVIS WAS MORE
SIGNIFICANT THAN THEY MIGHT
HAVE THOUGHT ORIGINALLY.
>> WELL, THE ONLY THING THE
BASICALLY SAID IN THAT
INTERVIEW WITH SWEENEY AND
WILLIS IS THAT AFTER THE
DISAPPEARANCE DAVIS IS
APPARENTLY TALKING TO
SWEENEY AND WILLIS AND
TRYING TO MAKE INQUIRY ABOUT
WHETHER OR NOT THEY HEARD
ANY INFORMATION AND HOW
UPSET HE IS OR ALLEGEDLY
UPSET THAT SHE DIDN'T
CONTACT HIM FOLLOWING HER
DISAPPEARANCE WHEN EVERYONE
WAS UNDER THE IMPRESSION SHE
RAN AWAY.
>> I'M UNDERSTANDING THEY
FELT THAT INFORMATION WHICH
WAS THE CLAIM WAS NOT
DISCLOSED WOULD HAVE PUT
THEM ON NOTICE THAT THEY
REALLY NEEDED TIME OF JUNIOR
DAVIS TO SET OUT TO TO.
LET'S -- I GUESS -- LET'S
UNRAVEL THIS MIGHT TAKE A
WHILE.
LET ME -- YOU KNOW, I'VE
READ KATHY STEVEN'S
TESTIMONY AT TRIAL.
AND SHE'S NOT THE STRONGEST
WITNESS.
I MEAN, A LOT OF
INCONSISTANCIES IN HER
STATEMENT.
WHY WOULDN'T BIT A BETTER
THING TO HAVE AN EVIDENTIARY
HEARING ON TO HEAR WHAT
JUNIOR DAVIS HAS TO SAY WHAT
THE TRIAL JUDGE REALLY
EVALUATE THIS IS SIGNIFICANT
IMPEACHMENT OF KATHY STEVENS
OR NOT.
>> WELL, WE KNOW WHAT HE HAS
TO SAY IN TERMS OF HIS
KNOWLEDGE OF THE CRIME AND
THAT IS NOTHING.
ALL HE SAYS IN HIS AFFIDAVIT
BASICALLY IS THAT HE HAD
DISAGREEMENT WITH KATHY
STEVEN'S TESTIMONY ABOUT
MEETING A THE CONVENIENT
STORE AT THAT -- AT THAT DAY
OF THAT INCIDENT.
AND ALL THAT IS JUST
MINOR -- A MINOR
INCONSISTANCY WITH THE REST
OF -- HE DOESN'T IMPEACH HER
TESTIMONY AT ALL ABOUT WHAT
SHE SAW AT THE HOUSE THAT
DAY.
IT DOESN'T IMPEACH DECARR.
>> IT DOESN'T IMPEACH DECARR!!!!!!!!!!!!
DECARR -- THE MOTHER OR THE
JAILHOUSE PERFORMANCE.
BUT IT'S KIND OF SHE
TESTIFIED AT TRIAL THAT THE
BOYFRIEND AND EVEN THE
TESTIMONY SHE WAS A LITTLE
BIT STRANGE.
SHE TOLD HIM WHAT HAPPENED
AND HE GOES, WELL THAT'S NO
BIG DEAL OR WALKS AWAY.
AND THAT'S A DETAIL THAT HAS
TO DO WITH HER WHOLE
RECOLLECTION OF WHAT
HAPPENED.
SHE NEVER SAW HIM AND WHAT!!!!!!!!
WHAT -- THEN SHE WAS WHINING
AT TRIAL.
-- LYING AT TRIAL.
IF SHE WAS LYING ABOUT THAT
WHY WASN'T SHE LYING ABOUT
SOMETHING ELSE.
>> NOT NECESSARILY LYING.
SOMEONE IS MISTAKEN OR
FORGETTING WHAT IT MAY BE.
BUT THE POINT OF IT IS IT
DOESN'T --
>> I'M TRYING TO PLAY -- I'M
NOT SURE ABOUT WHETHER AN
EVIDENTIARY HEARING IS
NEEDED.
I WANTED TO PLAY DEVIL'S
ADVOCATE HERE ON
HOW -- WHETHER THIS IS
REALLY HOW SIGNIFICANT THIS
IMPEACHMENT WOULD BE AND IS
IT NOT BETTER TO LET A TRIAL
JUDGE ACTUALLY LISTEN TO THE
TESTIMONY?
>> I THINK THE TRIAL JUDGE
IN DENYING RELIEF -- WHAT
THE ALLEGATIONS WERE THAT
WERE PRESENTED IN THE
AFFIDAVIT AND REVIEWED THE
RECORD EVIDENCE, THE
TESTIMONY AND DETERMINE THAT
IT WAS NOT THE KIND OFERS
THAT WOULD HAVE MADE ANY
DIFFERENCE IN THIS CASE.
>> LET ME ASK YOU THIS ONE
QUESTION MR. LANDRY.
IF WE LOOK AT THE TOTAL
PICTURE.
AND THERE IS AN EXPLANATION
OF A YOUNG WOMAN COMING TO A
HOME AND SEEING SOME TYPE OF!!!!
OF -- LET'S TAKE KNIT THE
LIGHT OF THE ATTACK
OCCURRING -- AND THEN
EXPLAINS THAT SHE DIDN'T DO
ANYTHING EVEN AFTER BEING
REQUESTED TO DO SO BECAUSE
SHE WENT AND TALKED WITH
SOMEONE ELSE.
AND THAT EXPLAINS THE WAY
THE ENACTION.
WOULD THAT PLACE KNIT A
DIFFERENT LIGHT FOR THE
IMPEACHMENT?
OR IS THAT STILL ALONG THE
LINES OF JUST A MORE -- JUST
A FACTOR THAT IS REALLY NOT
VERY SIGNIFICANT AND JUST A
MATTER OF A SMALL
IMPEACHMENT UNDER THE
SCENARIO WE'RE DEALING WITH.
>> I'M NOT SURE I UNDERSTAND
THE QUESTION.
BECAUSE --
>> THE QUESTION IS THAT IF
SHE -- AS I UNDERSTAND THE
FACT THIS WITNESS TESTIFIED
THAT SHE OBSERVED SYSTEM
TYPE OF ATTACK OR WRESTLING
OR SOMETHING GOING ON.
AND ALSO SAID THAT SHE'S
REQUESTED TO SEEK HELP.
THAT'S CORRECT.
>> IS THAT A FAIR STATEMENT?
>> IT ATTEMPTS TO EXPLAIN
WHY SHE DID NOT SEEK ANY
HELP BY VIRTUE OF MEETING
WITH THE BOYFRIEND AS TO THE
CONVENIENT STORE OR 711 AND
THAT HE WASN'T CONCERNED SO
MAYBE THIS WAS NO BIG DEAL.
DOES THAT PLACE THE
IMPEACHMENT IN A DIFFERENT
LIGHT THAN AS IT JUST
HAPPENS TO BE AS A PART OF
THE SCENARIO THAT'S
IMPEACHED.
ONE FACT.
WELL, I DON'T KNOW THAT -- I
DON'T KNOW HER TESTIMONY WAS
THAT SHE DID NOT GO TO THE
POLICE BECAUSE SHE TALKED TO
HIM.
I MEAN, MAYBE YOU COULD DRAW
THAT CONCLUSION OR DRAW THAT
INFERENCE FROM IT.
I THINK SHE IS REPORTING THE
CHRONOLOGY GIVE OF EVENTS
THAT OCCURRED IN HER
RECOLLECTION.
THAT AFTER JULIA DAVIS
APPARENTLY SEEMED TO BE
DISINTERESTED OR WHATEVER,
AND -- I MEAN JUNIOR DAVIS'
STATEMENT TO THE POLICE WAS
THE FAMILY WAS A MESS.
THERE WAS CONFLICT AND SO
IT'S QUITE -- HIS REACTION
IS QUITE UNDERSTANDABLE FROM
HER PERSPECTIVE.
BUT SHE THEN TESTIFIED THAT
AFTER JUNIOR DAVIS
APPARENTLY WALKED AWAY OR
EXPRESSED HIS INTEREST THEN
SHE DIDN'T KNOW WHAT TO DO
AS SHE JUST WENT OFF TO
SCHOOL AND DIDN'T THINK IT
WAS IMPORTANT ENOUGH TO GO
TO THE POLICE AT THAT POINT.
>> DOES THAT CHANGE THE
IMPORTANCE OF THE NEED FOR
AN EVIDENTIARY HEARING THEN
IT WAS RAINING THAT DAY OR
WASN'T RAINING.
JUST THE NATURE OF WHAT THE
TESTIMONY IS IMPORTANT FOR
US TO LOOK AT AND THEN WHAT
IS THE SIGNIFICANCE?
>> WELL, YEAH.
I MEAN, CERTAINLY THERE WILL
BE DEGREES OF IMPORTANCE AND
ALL OF THAT.
BUT I DON'T SEE THAT THIS
RISES TO THE EVENT OF
CHANGING ANYTHING.
BECAUSE JUNIOR DAVIS STILL
HAS NOTHING TO SAY ABOUT THE
CRIME OCCURRING.
HE DOESN'T KNOW WHETHER
KATHY STEVENS WAS THERE OR
NOT AND WHETHER THERE WAS A
FIGHT OR A STRUGGLE OR NOT.
HE HAS NOTHING TO SAY TO
IMPEACH MR. TOKO WHO SAID
THE -- MR. TURCO --
>> I'M HAVING DIFFICULT WITH
YOUR RESPONSE TO THE CHIEF'S
QUESTION.
BECAUSE ON THE ONE HAND, YOU
SEEMED TO SAY, YES IT IS
VERY SIGNIFICANT.
THE -- AND THEN ON THE OTHER
HAND YOU LOOK TO THE
TESTIMONY OF THESE OTHER 22
WITNESSES ASIDE FROM
STEVENS.
WE'RE DOING THIS WITH OUT
ANY KIND OF A HEARING, YOU
KNOW THAT WOULD HAVE SORTED
IT OUT.
I WOULD LIKE TO SORT OF
REASK THE SAME QUESTION THAT
THE CHIEF HAS ASKED YOU.
AND THAT IS THAT ONE OF THE
GLARING THINGS IN THIS CASE
IS ABOUT MISS STEVENS AND
THAT IS THAT SHE REALLY
VIVIDLY DESCRIBES SOMETHING
VERY TERRIBLE GOING ON, THAT
IS THAT HER FRIEND IS BEING
ATTACKED.
AND THAT IS SHE NOT
ONLY -- SHE NOT ONLY IS
BEING I TACKED BY SHE'S
CRYING OUT FOR HELP.
AND SO ONE OF THE GLARING
ISSUES IN THIS CASE WITH
MISS STEPHENS IS, WELL, MY
GOSH, YOU KNOW, YOU'RE THIS
GIRL'S BEST FRIEND AND YOU
ARE WATCHING HER BEING
SEXUALLY ASSAULTED AND
CRYING OUT FOR HELP WHY IN
THE WORLD DIDN'T YOU
IMMEDIATELY CALL THE POLICE
OR GO TO -- YOU KNOW, GO GET
SOME HELP.
AND YOU KNOW, PERHAPS
PREVENT THIS TERRIBLE
TRAGEDY FROM OCCURRING.
AND SO WHAT HER EXPLANATION
IS FOR NOT DOING IS VERY
IMPORTANT TO THE CASE IT
SEEMS.
AND I THINK YOU ACKNOWLEDGE
THAT.
AND TAKING ON YOUR ARGUMENT
HEAD ON I WISH YOU WOULD
RESPOND AGAIN AND SAY
ASSUMING THAT THE ARGUMENT
IS THAT, THAT'S WHAT
HAPPENED.
THAT'S -- AND HERE SHE IS
AFTER HAVING WITNESSED THAT
AND AFTER BEING APPEALED TO
GET HELP THAT SHE SAYS, WELL,
AND NOW THIS IS REALLY
ALMOST A HYPOTHETICAL,
BECAUSE I'M NOT CERTAIN THAT
THIS IS SUPPORTED BUT YOUR
OPPONENT IS SAYING THAT IN
ESSENCE SHE SAYS WELL, HER
BOYFRIEND WHOM I SAW RIGHT
AWAY AFTER THAT SAID'S NO
BIG DEAL AND AS A RESULT OF
THE BOYFRIEND REALLY MAKING
SAYING IT'S NO BIG DEAL,
THAT, THAT'S THE REASON I
DIDN'T GO FOR HELP.
SO HELP US WITH WHY IT
WOULDN'T BE IMPORTANT THEN
TO KNOW WHAT THE BOYFRIEND
HAS TO SAY AS TO WHETHER OR
NOT HE WAS THE CAUSE OR
EXCUSE THAT SHE HAS FOR NOT
SEEKING HELP OR NOT.
>> WELL, I MEAN, APPARENTLY
MR. DAVIS' AFFIDAVIT IS
BASICALLY, I DIDN'T SEE
KATHY STEVENS THAT DAY.
ASSUMING THAT SHE SAYS THAT
THE REASON SHE DIDN'T GO FOR
HELP IS HIM, THAT'S NO
LONGER AVAILABLE TO HER.
TO BE ABLE TO SAY THAT THE
REASON I DIDN'T GO FOR HELP
WAS BECAUSE OF SEEING AND
TALKING TO THE BOYFRIEND AND
HIM SAYING IT'S NO BIG DEAL.
SHE DOESN'T HAVE THAT ANY
MORE AS AN EXCUSE.
FOR NOT SEEKING HELP.
AND SO ISN'T THAT CRITICAL
TO HER CREDIBILITY AS TO WHY
SHE DIDN'T SEEK HELP, IF SHE
INDEED WITNESSED ALL THIS,
IF THERE'S A REAL
INCONTEMPLATE GREWITY WITH
HAVING WITNESSED THIS ATTACK
AND THE CRY FOR HELP AND
THEN NOT DOING SOMETHING
ABOUT IT.
>> I DON'T THINK IT'S
CRITICAL.
AND IF YOU LOOK AT THE
CLOSING ARGUMENT OF DEFENSE
COUNSEL HE WAS POINTING OUT
WHAT HE THOUGHT WERE THE
ALLEGED INCONSISTANCY IN
KATHY STEVENS TESTIMONY.
HE SAID FIRST OF ALL SHE
ADMITTED ABOUT HAVING LIED
TO MR. PONITA THE FIRST TIME
SHE CALLED AND ALL THAT.
AND ALSO THE INFORMATION
ABOUT KATHY STEVENS TALKING
TO PROSECUTOR BONIATA.
HE DEPOSED HER BEFORE HAND.
HE KNEW ALL ABOUT AND
QUESTIONED.
HE GOT HER TO ACKNOWLEDGE
THAT SHE LIVE -- LIED TO
MR. BONITA.
HE ACKNOWLEDGED TO
ACKNOWLEDGE THAT SHE HAD
LIED TO MISS DECARR, THE
MOTHER ABOUT WHETHER THE
LISA HAD RUN AWAY OR NOT.
HE ALSO POINTED OUT IT
DIDN'T -- THE UNUSUAL NATURE
OF WHY DIDN'T KATHY STEVENS
COME FORWARD EARLIER.
STEVENS APPARENTLY HAD
EARLIER SAID THAT SHE
INITIALLY THOUGHT THAT KATHY
HAD RUN AWAY.
AT LEAST HAD RUN AWAY.
AND THEN WHEN -- IT WAS A
YEAR LATER THAT THE BODY WAS
DISCOVERED.
AND STEVENS AT ANY TIME COME
FORWARD THEN AND EVEN THEN
UNTIL MARCH OF 1985.
ALL OF THIS --
>> AFTER THE CRIME; IS THAT
CORRECT?
>> COUPLE OF YEARS AFTER THE
CRIME.
THAT'S HOW LONG AFTER THE
CRIME BEFORE SHE CAME
FORWARD?
>> I WOULD THINK ABOUT A
YEAR AND A HALF.
IT WAS -- IT WAS ABOUT A
YEAR AFTER THE DISAPPEARANCE
OF THE BODIES DISCOVERED,
MR. TOMPKINS WAS ARRESTED OR
INDICTED IN SEPTEMBER OF '84
AND THEN SHE CAME FORWARD IN
MARCH OF '85.
SO THE DEFENSE HAD AMPLE
OPPORTUNITY TO IMPEACH HER
CREDIBILITY IN HIS CLOSING
ARGUE.
I SAY THAT THIS JUNIOR
AFFIDAVIT ADDS VERY LITTLE
TO THAT.
AND IF YOU WANT TO MAKE THE
ULTIMATE -- BECAUSE HE WAS
INEFFECTIVE FOR NOT HAVING
CALLED JUNIOR DAVIS THE
ANSWER TO THAT WOULD BE THAT
HE WOULD THEN HAVE TO MAKE A
DECISION TO FORFEIT OPEN
OPENING AND CLOSING ARGUMENT
BY THE IMPORTANCE OF
OPENINGED A CLOSING ARGUMENT
IS WELL AS IMPORTANT AS THIS
COURT'S DECISION.
DID YOU TAKE ON HIS ARGUMENT
THAT.
>>> DID YOU TAKE ON THE
ARGUMENT THAT KATHY STEVENS
DID USE HER CONVERSATION
WITH THE BOYFRIEND AS AN
EXCUSE FOR NOT COMING
FORWARD?
IS HE CORRECT ABOUT THAT?
OR DOES THE RECORD NOT
SUPPORT THAT?
IN OTHER WORDS WHAT DID
KATHY STEVENS SAY IN HER
DEPOSITION AND THEN IN HER
TRIAL TESTIMONY?
DID SHE REALLY USE THE
MEETING WITH THE BOYFRIEND
AS THE REASON THAT SHE
DIDN'T COME FORWARD?
>> WHAT'S HER CLAIM ON THAT?
>> I'M NOT SURE WHETHER SHE
SAID IT'S THE REASON.
I THINK CERTAINLY SHE
DESCRIBED THE CHRONOLOGY OF
WHAT HAPPENED.
SHE SAW THE ATTACK AT THE
HOUSE.
SHE GOES TO THE CONVENIENT
STORE AND RUNS INTO JUNIOR
DAVIS.
TELLS HIM OR TRIES TO TELL
HIM WHAT'S GOING ON.
HE'S EITHER DISINTERESTED OR
NOT RESPONDING TO HER
CONCERNS AT THAT POINT.
AND THEN SHE DECIDES AT THAT
POINT, WELL, YOU KNOW, I
DON'T KNOW IF IT WILL WORK
OUT OR I SHOULD CALL THE
POLICE.
SHE GOES OFF TO SCHOOL THAT
DAY AND DOESN'T CALL THE
POLICE.
I MEAN, I DON'T.
>> THE ANSWER OF -- BECAUSE
I READ THE PART IN
THE -- FROM THE TRIAL
TRANSCRIPT.
IT SOUNDS LIKE SHE DOES
USE -- SHE WAS SCARED AND
SHE ALSO TOLDER AND JUST
WALKED A -- TOLD JUNIOR AND
HE JUST WALKED AWAY AND
DECIDED NOT TO GET INVOLVED.
IT'S A FACTOR IN WHAT SHE
TESTIFIED AT TRIAL AS TO WHY
SHE DIDN'T TELL POLICE.
>> YEAH.
BUT I DON'T KNOW WHETHER OR
NOT SHE'S SAYING THAT UPON
SEEING JUNIOR'S RESPONSE AND
THEN IT ACTUALLY WASN'T AS
SERIOUS AS I WAS INITIALLY
LED TO BELIEVE.
THAT MAY HAVE BEEN THE
REACTION SHE HAD GOTTEN FROM
IT.
TESTIMONY IS WHAT THE
TESTIMONY IS.
THE JURY NEW AND ASSUMING WE
HAVE TO ASSUME ON THIS THAT
JUNIOR DAVIS IS CREDIBLE,
THAT HE MADE UP THIS WHOLE
INTERACTION WITH JUNIOR
DAVIS.
>> UH-HUH.
AND THEN THE -- TO ME THAT
IS A PRETTY SIGNIFICANT
IMPEACHMENT.
I'M JUST WITH YOU ON THE
FACT THAT I'VE READ HER
TESTIMONY.
I THINK SHE'S PRETTY
IMPEACHED AS IT IS AT TRIAL.
NOW HOW MUCH MORE
IMPEACHMENT IT IS.
WHAT IS THE STORY WITH HER
SAYING THAT THERE WAS A MAN
IN THE ROOM AT THE TIME THAT
SHE WITNESSED THIS?
>> THAT WAS HER TESTIMONY AT
TRIAL.
>> AND WAS THAT IMPEACHED?
OR WAS THERE ANY -- DID THE
STATE ASSERT THERE WAS AN
ADDITIONAL PERSON THAT WAS
WITNESSING THIS ATTACK, A
MAN?
DID WE EVER FIND OUT WHO
THAT WAS?
>> NO.
NO.
THE DEFENSE AND THE DEFENSE
CROSS-EXAMINED HER ON THAT.
YOU MEAN THERE WAS ANOTHER
PERSON WHO WAS THERE AND
WASN'T AND BLAH, BLAH, BLAH.
SHE MAY HAVE BEEN ASKED WHO
IT WAS OR SHE KNEW HIM.
>> WHAT WAS THE STATE'S
POSITION ABOUT WHETHER THERE
WAS AN ADDITIONAL INDIVIDUAL
WHO WAS SOMEHOW INVOLVED IN
THIS WHOLE ODD SEQUENCE OF
EVENTS THAT DAY.
>> THE STATE HAD THE
POSITION THAT HER TESTIMONY
WAS THAT SHE SAW THAT TOTAL
OF TWO PEOPLE IN THE ROOM.
ONE WAS SIMPLY THERE
WATCHING.
AND YOU KNOW THE STATE NEVER
FOUND OUT OR LEARNED WHO THE
OTHER PERSON WAS ALLEGEDLY.
THAT'S JUST HER TESTIMONY.
BUT YOU HAVE -- THE STATE
HAS GOTEN A CONVICTION IN
THIS STATE BASED ON THE
TESTIMONY OF THE JAILHOUSE
INFORMANT AS WELL AS BARBARA
DECARR.
SHE IN FACT, THE MOST
CRITICAL WITNESS IN THE
STATE'S CASE?
>> I DON'T KNOW IF SHE WAS
THE MOST CRITICAL WITNESS.
APPARENTLY SHE CERTAINLY GOT
AN INDICTMENT WITH KATHY
STEVENS.
SHE CAME FORWARD AFTER HE
WAS INDICTED AND ARRESTED.
>> READING THE WHOLE TRIAL
TRANSCRIPT WHERE SHE
TESTIFIED THE PRIOR INCIDENT
WHERE HE EXPOSES HIMSELF TO
BOTH OF THEM AND SOME PRETTY
GRAPHIC TESTIMONY.
DO YOU RAISE HER AS BEING
THE MOST CRITICAL WITNESS?
>> I THINK THE -- SHE WAS AN
IMPORTANT WITNESS.
IN ADDITION TO THE CELLMATE
AND IN ADDITION TO ROBERT
DECARR'S TESTIMONY.
YOU HAVE ADMISSION OF THE
DEFENDANT.
HE HASN'T RECANTED HIS
TESTIMONY NOR HAS LISA OR
KATHY STEPHENS.
THERE IS NO CHANGE IN WHAT
THEY'VE HAD TO SAY.
>> THERE'S NO RECAMP OF
ANYONE'S TESTIMONY IN THIS
CASE.
ALL WE HAVE A JUNIOR DAVIS
SAYING I DIDN'T MEET WITH
KATHY STEVENS AT THE STORE.
I DON'T KNOW ANYTHING MORE
ABOUT THE CASE.
THAT'S BASICALLY IT.
AS WE PARTED OUT IN
THE -- AS WE POINTED OUT IN
THE BRIEF THERE'S NO CLAIM
OF THERE CAN BE NO
LEGITIMATE CONTINGENT OF A
BRADY VIOLATION -- WHATEVER
DAVIS TOLD DETECTIVE WAS
GIVEN TO THE DEFENSE.
ONCE KATHY STEVENS COMES
FORWARD AND ARGUEABLY IF SHE
MAKES STATEMENT WHICH ARE
INCONSISTENT WITH WHAT DAVIS
TOLD BURKE THEN THE DEFENSE
HAD THAT OPPORTUNITY TO GO
AND INVESTIGATE THAT IF HE
WANTED TO.
THERE'S NO VIOLATION.
NO ONE HAS GIVEN PURGING
TESTIMONY OR FALSE
TESTIMONY.
HAD IT GONE UNCORRECTED AT
MOST YOU HAVE HERE
ARGUELIABLY IS A CLAIM
POSSIBLY EVEN INEFFECTIVE
ASSISTANCE OF COUNSEL
BECAUSE MR. McKELVIN THOUGHT
A DIFFERENT ATTORNEY WOULD
HAVE DONE SOMETHING
DIFFERENT.
THIS COURT IN THE FEDERAL
COURTS DENIED RELIEF ON
THAT.
WE SHOULD NOT BE HAVING
PIECEMEAL LITIGATION OF
INEFFECTIVE COUNSEL CLAIMS.
THERE'S NO FURTHER QUESTIONS
I WOULD ASK THE COURT TO
AFFIRM.
>> AM I IN REBUTTAL?
>> THE 1989 EVIDENTIARY
HEARING IT WASN'T PERMITTED
TO KAGT KATHY STEVENS.
THERE WASN'T A HEARING ON
HER.
SHE WASN'T CALLED.
HER ACCOUNT IS A VIVID
ACCOUNT.
AND --
>> WHY WERE YOU NOT
PERMITTED TO CALL HER?
>> THE JUDGE -- THE
PROSECUTOR OBJECTED AND THE
JUDGE SAID, NO, YOU CAN'T
CALL HER.
>> WHY?
WAS THERE AN ISSUE RAISED?
>> IT WAS RAISED.
THE MEMORANDUM WERE UP
DEUCED.
I CALLED THE PROSECUTOR.
HE SAID, YES HE WROTE THE
MEMORANDUMS BASE ODEN WHAT
SHE SAID.
HE ARGUED SHE WOULD BE TOO
EMOTIONALLY UPSET AND THE
JUDGE ABSTAINED THE
OBJECTION AND I COULDN'T
CALL HER.
BUT HER IN -- ACCOUNT WAS
VERY VIVID.
>> AS WE PUT THIS TOGETHER
WE MUST LOOK TO THE STANDARD
THAT WE'RE UPON BEFORE WE
CAN REALLY COME TO A
CONCLUSION AS TO WHERE THIS
RECORD EXCLUSIVELY
DEMONSTRATES.
>> OKAY.
>> AND YOU'RE TRYING TO NOT
ONLY WHO DISCOVERED BUT
BRADY.
>> THAT'S CORRECT, YOUR
HONOR.
>> AND CAPTURE FOR US 11:00
SINKLY AS POSSIBLE WHAT THAT
BRADY VIOLATION IS.
I KNOW YOU TRY TO ARGUE AND
BRING BACK IN THERE'S A
COUPLE OF FOLKS THAT TALKED
WITH THE INVESTIGATOR THAT
SAID WHAT HAS REALLY PLACED
THIS TO UNDERMINE THE
CONFIDENCE IF YOU HAVE AN
EVIDENTIARY HEARING THAT'S
NOT REVIEWED.
>> YOUR HONOR IN 2001 THE
POLICE REPORT THAT WAS FIRST
DISCLOSED INVOLVED THE
ENTERVIEW OF MARINE SWEENEY
AND WILLIS THEY NOT ONLY
GAVE INFORMATION ABOUT
BARBARA DECARR GIVING A
DIFFERENT VERSION OF THE
CRIME INDICATING LISA WARREN
AWAY AFTER A FIGHT OVER
MR. TOMPKINS MOVING BACK IN
THE HOUSE.
THEY ALSO SAID THEY SPOKE TO
JUNIOR DAVIS AND THE
INFORMATION THAT HE GAVE IS
INCONSISTENT WITH WHAT WAS
REPRESENTED AT TRIAL
REGARDING JUNIOR DAVIS.
THAT LEAVES TO HIS AFFIDAVIT
WHICH I SUBMIT IF YOU
HAVE --
>> THE
SUBSTANTIATE -- SUBSTANCE
NOT THE EVIDENCE.
WE'RE LOOKING AT WHAT THE
OTHER PEOPLE HAD TO SAY.
THAT'S GOING TO BE THE BRADY
VIOLATION.
>> THE BRADY VIOLATION IS
THEY HAVE INFORMATION THAT
SHOWED THAT JUNIOR DAVIS HAD
GIVEN HIM A COUNT
INCONSISTENT WITH KATHY
STEVENS AND WOULD CAUSE AN
ATTORNEY TO FIND HIM AND
ELLIS SEURT MORE INFORMATION
FROM HIM.
WE LOOK -- WE KNOW WHAT'S IN
THE RECORD.
IS THERE NOT THE ADMISSION
OR STATEMENTS FROM THE
DEFENDANT WITH REGARD TO THE
RUN AWAY DESCRIBING THE
CLOTHE!!ING THIS CLOTHING THAT
SHE ALLEGEDLY DESCRIBES BY
THE DEFENDANT THIS RUNNING
AWAY IN WAS FOUND VERY?
>> ONLY THE BERN.
THE CLOTHING WAS FOUND WITH
A PINK BATHROBE.
IT WASN'T THE CLOTHING.
>> I KNOW THE BATHROBE WAS
THERE.
>> NO.
THE MARINE TOP WAS NOT.
THERE'S OTHER WITNESSES.
THERE WAS GLADDIEST DAILY
WHO SAID THEY SAW MARINE
TOP.
THE RELATIONSHIP BETWEEN
JUNIOR DAVIS AS THIS COURT
ACKNOWLEDGED, THERE'S
SOMETHING STRANGE ABOUT HER
TESTIMONY.
YOU READ THE TESTIMONY AND
IT'S LIKE THIS IS A BIZARRE
REACTION TO WHAT SHE HAS
JUST SEEN.
AND THE STATE'S EXPLANATION
IS JUNIOR DAVIS THE
BOYFRIEND DIDN'T HAVE ANY
DIFFERENT REACTION.
AND IT SORT OF MAKES IT SEEM
LIKE THIS REACTION IS MORE
NORMAL THAN IT IS.
AND, IN FACT, HAD THE
DEFENSE KNOWN ABOUT JUNIOR
DAVIS THE REASON TO CALL HIM
IS TO SHOW WHAT KIND OF
REACTION A NORMAL PERSON
WOULD HAVE TO HEARING OR
SEEING WHAT KATHY STEVENS
SAID SHE SAW.
AND SO IF IT'S MORE THAN
JUST IMPEACHING HER.
IT'S ALSO IMPEACHING THE WAY
THE STATE USED HER.
AS IF THE SORT OF NORMAL
REACTION.
PHAPBG THIS CASE WITHOUT HER
TESTIMONY.
-- IMAGINE THIS CASE
WITHOUT HER TESTIMONY IT
CHANGES THE CASE.
>> THAT'S ALL YOUR TILE.
THANK YOU BOTH FOR YOUR
EXCELLENT PRESENTATIONS.
THE COURT WILL TAKE THE CASE
UNDER ADVISEMENT.
>>