Perry Alexander v. State of Florida

SC06-615 | SC07-1168

THE NEXT CASE ON THE CALENDAR
THIS MORNING IS TAYLOR V. STATE
OF FLORIDA. 
[INAUDIBLE CONVERSATIONS]
>> LET THEM CLEAR OUT BEFORE
WE. 
I THINK WE CAN HEAR NOW. 
>> MAY IT PLEASE THE COURT I'M
DAVID GEMMER REPRESENTINGPERY
TAYLOR. 
THREE AREAS I WANT TO COVER. 
PROBABLY WON'T COVER THEM, IT
WAS THE SEXUAL BATTERY ISSUE,
THE MEANTAL HEALTH MITIGATION
ISSUE, AND THE QUESTION OF
PUTTING MR.^TAYLOR ON THE STAND
IN THE GUILT PHASE. 
AS FAR AS THE SEXUAL BATTERY
ISSUE -- YOU HAVE TO UNDERSTAND
MR.^BONITO THE PROSECUTOR IN
THE 1989 TRIAL SURPRISINGLY
FRANK AND CANDID TOLD THE COURT
IN AN ARGUMENT ON THE MOTION
FOR JUDGET ACQUITTAL IF HE
HADN'T HAVE MADE ANY STATEMENTS
I WOULD'VE HAD A SHOEPRINT IN A
DUGGOUT. 
I WOULDN'T HAVE CHARGED HIM
WITH ANYTHING. 
THEN IN TAYLOR 1 THIS COURT'S
OPINION WHERE THE COURT LOOKED
AT THE QUESTION OF WHETHER
THERE WAS EVIDENCE TO REFUTE
THE CIRCUMSTANTIAL CASE THAT
THERE WAS CONSENT, MR.^PERRY
TAYLOR TESTIFIED AND CONFESSED
TO THE ACTIONS THAT HE DID AND
SAID THAT ALL THE SEXUAL ACTS
WERE CONSENSUAL AND THIS COURT
SAID, WELL, ASSUMING THAT WE
STILL HAVE THE MEDICAL
EXAMINER'S TESTIMONY THAT THE
INJURIES TO THE SEXUAL ORGANS
WERE SUFFICIENT TO ESTABLISH A
RAPE THERE. 
THEN WE HAVE EVERETT SOCIETY
CITED IS THE STATE'S ANSWER
CASE IN THIS -- BRIEF IN THIS
CASE THAT INJURY ENOUGH IS
ENOUGH TO INIGATE CONSENT IF
YOU LOOK AT THE EVERETT CASE
AVAILABLE FROM THE COURT THE
DEFENDANT ADMITTED IN THAT CASE
THAT HE HAD NO CONSENT FOR THE
RAPE AND THE RAPE OCCURRED
BETWEEN, BEGINNING WITH OTHER
ACTS OF VIOLENCE, THEN THE
SEXUAL BATTERY, AND THEN
FURTHER ACTS OF VIOLENCE,
WHEREAS IN THIS CASE WE HAVE A
COMPLETELY CONSENSUAL ENCOUNTER
UP UNTIL THE MOMENT THAT THE
EITHER THE KICKING OR THE
CHOKING BEGAN. 
>> COULD I --, I SORT OF FOLLOW
WHAT YOU ARE SAYING AND WHAT
YOU'VE ALLEGED. 
YOU'RE CLAIMING THAT THE
TESTIMONY NOW OF DR.^MILLER IS
FIRST YOU ARE SAYING IT IS
NEWLY DISCOVERED EVIDENCE, IS
THAT CORRECT? 
>> I CALL IT NEWLY DISCOVER I'D
CALL IT A BRAVE VIOLATION OF
GIGLIO. 
>> SO THAT'S SORT OF THE
THRESHOLD IS DR.^DID DR.^MILLER
NOW SAY IF I WERE CALLED TO
TESTIFY TODAY, OR I WAS, I KNEW
IT BUT I SUPPRESSED IT, YOU
KNOW, ON PAGE 54 OF THE JUDGE'S
ORDER, THE JUDGE SAYS THAT THE
CLAIM OF NEWLY DISCOVERED
EVIDENCE, WHAT EVERYONE CALLED
ON BASED ON A SUPPOSED
RECANTATION BY DR.^MILLER, WHAT
CAUSED THE VICTIM'S VAGINAL
INJURIES ARE NOT A PROPER
STATEMENT. 
THE VAGINAL INJURIES COMING
FROM A KICK WERE KIND OF A KIND
OF ONE IN A MILLION SHOT. 
THE COURT ASKED MILLFER THE
LACERATIONS HE FOUND WOULD
INVOLVE PENETRATION HE SAID
THEY WOULD. 
DR.^LYNCH, THE STATE'S EXPERT
TESTIFIED THAT THE INJURY TO
THE VAGINA WOULD INDICATE SOME
SORT OF PENETRATION THAT CAUSED
THE INJURY, AND WHEN ON ABOUT
THAT IT DR.^LYNN SAID THAT IN
HER EXPERT OPINION, SOMETHING
LARGE WAS PUT INTO THE VAGINA
THAT CAUSE ADTEARING AND
RIPPING AND SHE DID NOT BELIEVE
A KICK WOULD CAUSE T. SO THE
COURT -- SO GOING BACK TO THE
COURT FINDS THAT THE EVIDENCE
THE COURT'S FINDING OF SEXUAL
BATTERY SO THE COURT -- HOW DO
YOU GET BY THE COURT'S -- IN
THIS CASE, FINDING THAT EVEN
THOUGH YOU COULD ARGUE THAT
DR.^MILLER VACILLATED NOW, THAT
IT'S NOT NEWLY DISCOVERED
EVIDENCE, IT'S NOT A BRADY
VIOLATION, IT'S CERTAINLY NOT A
GIGLIO VIOLATION SO NOW WE GO
BACK TO HOW IT IS INEFFECTIVE
SO COULD BACK TO HOW YOU ARE
GOING TO DEAL WITH THE TRIAL
JUDGE'S. 
>> WELL, WORK BACKWARDS FROM
DR.^LYNCH. 
SHE WAS A LINE OB/GYN. 
SHE WAS NOT A FORENSIC OB/GYN. 
SHE WAS NOT A PATHOLOGIST AND
SHE ADMITTED THAT. 
SHE HAD ONLY HAD LESS THAN A
DOZEN RAPE EXAMINATIONS UNDER
HER BELT IN HER YEARS OF
PRACTICE. 
>> NOW YOU ARE GOING TO
CREDIBILITY AND WHETHER THE
JUDGE SHOULD'VE CREDDED HER
TESTIMONY OR THE OTHER SIDE'S
AND THE JUDGE ALREADY DECIDED
THAT WE CAN'T REVISIT
CREDIBILITY ISSUES. 
>> YOU HAVE TO REVISIT IF THERE
IS NO BASIS IN, --
>> THERE IS A BASIS --
>> THERE'S A BASIS IN
DR.^LYNCH'S TESTIMONY
REGARDLESS OF HER
QUALIFICATIONS. 
THE JUDGE CREDITED THAT
TESTIMONY. 
>> BUT THIS COURT'S, WELL
ACTUALLY THE FOURTH DISTRICT
CASE THAT I CITE IN MY BRIEF
THAT SAYS IF YOU ARE GOING TO
HAVE AN EXPERT TESTIFY, YOU
HAVE TO AT LEAST HAVE HIM
TESTIFY, THE EXPERT IN THE
THING THAT THEIR TESTIFYING
ABOUT. 
>> AND LET, LET'S LEAVE
DR.^LYNCH OUT OF IT. 
DR.^MILLER TESTIFIED AT THE
EVIDENTIARY HEARING, YEAH, NOW
I GUESS THERE'S A ONE IN A
MILLION CHANCE. 
HOW IS THAT A SUCH A DEPARTURE
FROM THE PRIOR TESTIMONY FROM 0
TO 1 IN A MILLION THAT IT'S
EITHER NOW NEWLY DISCOVERED OR
GIGLIO. 
>> IN THE 1979 IN 2000 RECORD
THROUGH 1955 INITIALLY
DR.^MILLER INTERRUPTED ME AND
SAYS YOU KNOW NOBODY ASKED ME
BEFORE. 
THEY DID ASK HIM BUT HE SAYS
NOBODY ASKED ME BEFORE BUT YOU
KNOW IT COULD'VE BEEN A KICK. 
AFTER I READ DR.^WRITE'S
TESTIMONY IN DEPOSITION, IT
COULD'VE BEEN A KICK, AND HE
SAYS IT'S A REASONABLE
POSSIBILITY. 
MAYBE EVEN A PROBABILITY. 
AND WHEN IT GOT DOWN TO THE ONE
IN A MILLION SHOT HE IS SAYING
IF YOU KICK, IT'S NOT LIKE --
ONLY ONE IN A MILLION TIMES IS
SOMEBODY GOING TO BE, IS IT
GOING TO BE THIS KIND OF INJURY
IT'S SAYING BASICALLY A LUCKY
SHOT SO TO SPEAK. 
>> AND I GUESS --
>> QUINT DENT. 
>> I AM THINKING OF YOU
PRESENTING THIS EVIDENCE TO A
JURY, AND I'M TRYING TO
UNDERSTAND SOMETHING. 
THE DEFENDANT GOES VOLUNTARILY
SHE, WE WERE GOING TO HAVE SEX
TOGETHER AND THEN SHE STARTED
GIVING ME ORAL SEX, AND IT
BECAME, SHE PINCHED ME OR BIT
ME AND I WENT BALLISTIC. 
THAT WAS HIS DEFENSE. 
RIGHT SO NOW WE GO BACK TO THIS
YOUNG, I DON'T KNOW HOW OLD WAS
THE VICTIM? 
THE VICTIM --
>> 40 I BELIEVE. 
>> HOW DID SHE DIE? 
>>> SHE WAS KICKED TO DEATH AND
I AM SURE THE STATE WILL BE
GLAD TO --
>> SO I AM THINKING NOW YOU ARE
GOING TO TELL ME, THE JURY THAT
THE KICKING INCLUDED KICKING
HER REPEATEDLY IN THE VAGINAL
AREA. 
I DON'T KNOW HOW -- I AM TRYING
TO UNDERSTAND HOW THAT HELPS
YOUR CASE. 
>> BECAUSE THAT'S NOT RAPE. 
KICKING --
>> YOU SAY IT GOES TO SEXUAL
BATTERY CONVICTION. 
>> YEAH, ABSOLUTELY AND IT GOES
TO THEN TO THE AGGRAVATING
FACTOR IT GOES TO FELONY MURDER
THEORY AND PLUS, IF THE JURY
HAD EVIDENCE THAT WOULD'VE MADE
IT BELIEVE THAT MR.^TAYLOR'S
TESTIMONY TO THE SEXUAL
ENCOUNTER --
>> WHEN WAS THE CONVICTION? 
>> I'M SORRY? 
>> WHAT YEAR WAS THE
CONVICTION. 
>> 1989. 
>> ALL RIGHT, SO NOW WE GO BACK
TO, I GUESS THE BEGINNING
QUESTIONS, WHICH IS WHAT IS
DR.^MILLER'S -- WHAT IS HIS
TESTIMONY AND HOW IF HE DID NOT
GIVE AN OPINION TO THE STATE
THAT WAS FAVORABLE TO THE
DEFENSE, IT WASN'T SOMETHING HE
HID. 
THE STATE CERTAINLY DIDN'T KNOW
ABOUT THIS OTHER QUESTION, HOW
DOES IT FIT IF IT ANY OTHER --
ANY OTHER CLAIM OF NEWLY
DISCOVERED EVIDENCE, OR FALSE
TESTIMONY SO CAN YOU ANSWER --
ASSUMING YOU GIVE THE BEST SPIN
TO NOW WHAT DR.^MILLSER SAYING
THAT IT'S ONE OF THOSE THINGS. 

IT'S NOT -- LET'S JUST GO WITH
THE THREE OF THOSE THINGS HOW
IS IT ONE OF THE 3? 
>> DR.^MILLER IS A STATE AGENT.

HE'S CHARGEABLE -- HIS
KNOWLEDGEABLE --
>> HE DIDN'T SAY I KNEW THIS
AND I KEPT IT FROM THE STATE OR
WHATEVER. 
HE JUST SAYS I HAVEN'T REALLY
THOUGHT ABOUT THAT ANGLE I HAVE
NOW READ DR.^WRIGHT'S TESTIMONY
AND IT'S GIVEN ME SOME FURTHER
THOUGHT BUT THAT'S NOT, THAT'S
SOMETHING THAT HAPPENED
SUBSEQUENTLY AS IF YOU HAD A
MENTAL HEALTH EXPERT WHO GOES
YOU KNOW I TESTIFIED TO THIS
AND I THOUGHT ABOUT IT MORE AND
I MIGHT ADD TO THIS DA. 
>> HE DID CONSIDER AND NEGATE
WHAT IN 1989 WHAT HE LATER SAYS
COULD'VE HAPPENED IN 89 ON PAGE
87 ON THE RECORD, -- OF THE
RECORD FROM THE STATE, THE
INJURY OBSERVED WITHIN A
REASONABLE DEGREE OF MEDICAL
PROBABILITY IS THAT CONSISTENT
WITH KICKING?
>> NO, AND THAT'S THE EXTERNAL.

THEN AS FAR AS THE INTERNAL,
INJURIES, TO REASONABLE DEGREE
OF MEDICAL PROBABILITY COULD
THOSE HAVE BEEN INFLICTED BY
KICKING?
NO. 
AND WITH A REASONABLE DEGREE OF
MEDICAL PROBABILITY, WOULD
PENETRATION HAVE BEEN NECESSARY
TO INFLICT THE INJURIES TO THE
INTERIOR? 
AND YES, AND THAT IS NOT THE
SAME AS SAYING, WELL, YOU
KNOW,. 
>> HOW DOES THAT CHANGE WITH
THE TESTIMONY? 
COULD THE KICKING HAVE CAUSED
THE INTERNAL INJURY? 
>> ABSOLUTELY, THAT'S THE
TESTIMONY OF DR.^WRIGHT. 
OR MEDICAL EXAMINER EXPERT. 
>> SO THE BOOT WOULD HAVE TO
ENTER THE VAGINAL AREA. 
>> THE BOOT PENETRATED. 
>> THAT'S ONE OF MY OTHER
ISSUES THAT THE BOOT BECAUSE
THE WOMAN HAD NINE CHILDREN,
AND DR.^MILLER TESTIFIED SHE
HAD --
>> JUST ANSWER MY SIMPLE
QUESTION. 
WOULD THE BOOT HAVE HAD TO
PENETRATE THE VAGINA? 
>> NO. 
>> TO MAKE ENTRY. 
OKAY LET ME BACK UP. 
WHAT IS THE NATURE OF THE
SEXUAL BATTERIADS CHARGED HERE?
WAS IT SIMPLE VAGINAL
PENETRATION BY THE PENIS OR WAS
ORAL SEX ALSO CHARGED. 
>> IT WAS JUST AGGRAVATED
SEXUAL BATTERY AND IN THE
MOTION -- ARGUMENT ON THE
MOTION --
>> -- DOCUMENT. 
>> I BELIEVE IT WAS JUST,. 
>> WAS IT JUST HIS PENETRATING
HER WITH HIS PENIS OR WAS IT
ALSO HIM FORCING HER TO PERFORM
ORAL SEX. 
>> I DON'T KNOW -- I BELIEVE
THE ORAL SEX WAS INVOLVED I
THINK I BELIEVE IT WAS
PENETRATION BY A LARGE OBJECT
AND HONESTLY I DON'T HAVE THAT
ANSWER AT MY FINGER TIPS AND I
WOULD HAVE TO RELY ON THE
CHARGING DOCUMENT. 
>> PENETRATION BY A LARGE
OBJECT, SO DID THE STATE
PROCEED ON A THEORY THAT HIS
PENIS WAS, WAS THAT THE OBJECT
OR WAS THERE SOME OTHER OBJECT?

>> NO, THE DEFENSE HAD TO
PROCEED ON THAT BECAUSE THEY
COULDN'T GET DR.^MILLER TO
ADMIT THAT IT COULD'VE BEEN A
KICK AS FAR AS THE INTERNAL
INJURIES. 
>> LET'S JUST GO BACK -- I'M
STILL, TO GET YOUR POSITION ON
THIS, ARE YOU SAYING THIS IS A,
THAT YOU -- WE HAVE TO LOOK AT
DR.^MILLER'S TESTIMONY AND
CONCLUDE THAT HE RECANTED WHAT
HE SAID AT THE TIME OF TRIAL
FOR THIS TO BE NEWLY DISCOVERED
BECAUSE AGAIN IT CAN'T BE BRADY
OR GIGLIO BECAUSE HE ONLY
LOOKED AT THIS SUBSEQUENTLY TO
SAY WELL MAYBE AFTER I LOOKED
AT WHAT DR.^RICE SAID, YOU
KNOW, MAYBE THIS -- I SHOULD'VE
SAID IT THIS WAY? 
SO IT WASN'T BE THE OTHER TWO. 
I MEAN THE STATE DIDN'T
KNOWINGLY --
>> YEAH. 
>> BECAUSE THAT'S YOUR --
>> I'M AEROING. 
>> THE STATE DIDN'T PRESENT
FALSE TESTIMONY. 
BECAUSE DR.^MILLER DIDN'T THINK
HIS TESTIMONY WAS FALSE IT WAS
A OPINION HE ARRIVED TO IN GOOD
FAITH. 
>> HIS POSITION CHANGED FROM
ONE THING IN 1989 TO 1992 WHEN
HE IS TESTIFYING ABOUT THE
EXTERNAL INJURY, LOOKS AT THE
PHOTOGRAPH HE SAID YOU KNOW? 
I'M MISTAKEN IT WASN'T THAT
THAT EXTERNAL PERINEAL INJURY
IS TOO FAR AWAY FROM THE
VAGINA. 
COULDN'T HAVE BEEN CAUSED BY
STRETCHING. 
AND SO I WAS WRONG. 

THAT SHOULD HAVE BEEN OBVIOUS
AND AVAILABLE.
NO SEXUAL GRATIFICATION.
THERE IS NO EVIDENCE THAT THE
PLACING OF THE HAND THERE WAS
FOR SEXUAL GRATIFICATION AND
THIS COURSE IN SPECIAL
CONCURRENCE ADOPTS THE SPECIAL
CONCURRENCE IN THE DISTRICT
COURT.
AKIN WAS A CASE WHERE YOU
ELIMINATED THE REQUIREMENT FOR
SEXUAL GRATIFICATION AS FAR AS
SEXUAL ORGAN CONTACT.
THEY ELIMINATED THAT BUT
WITHHELD RULING ON WHETHER
SEXUAL GRATIFICATION WAS STILL
AN ELEMENT OR NOT.
IT WAS AN ELEMENT AT THE TIME
OF INSERTION.
AND SO THAT WAS STILL A
LEGITIMATE DEFENSE.
IT WASN'T UNTIL THIS COURT RULED
THAT IT WAS NOT A DEFENSE, SO
YOU HAVE LACK OF SEXUAL
GRATIFICATION.
NO SHOWING OF ARGUMENT EVER THAT
THAT WAS INTENT.
AFTER THAT WE HAVE THE FACT THAT
THERE WAS NO INSERTION, ARGUING
ON THE BASIS THAT THE INJURIES
WERE ALL VISIBLE EXTERNALLY.
NOW THE WOMAN HAD A PROLAPSED
VAGINA, AND SO SOME OF THE PARTS
THAT NORMALLY ARE INTERIOR WERE
EXTERIOR AND MORE READILY
VISIBLE AND READILY AVAILABLE BY
CONTACT FROM THE KICK.
AND FINALLY WE HAD ACCIDENT,
AND IN THIS CASE, AGAIN, ACCIDENT
OR MISHAP AND THERE WAS NO
INTENT TO PENETRATE AND THE ONE
IN A MILLION SHOT THAT WOULD BE
THAT SOMEONE WAS DOING THAT,
THEY HAVE NO INTENT TO
PENETRATE.  SO IT IS TRULY AN
ACCIDENTAL PENETRATION AND THAT
DEFENSE IS ALWAYS AVAILABLE AND
SHOULD HAVE BEEN RECOGNIZED.
WE ESTABLISHED THAT MR. SENARTY
DID NOT ACTIVELY INVESTIGATE THE
LAW AT THE TIME OF THE TRIAL IN
1989 AND THEREFORE WAS NOT
PREPARED TO RAISE ANY OF THOSE
DEFENSES AS TO THE RIP.
>> YOU ARE MOVING ON TO
REBUTTAL.
YOU HAVE COVERED THREE OR FOUR
TOGETHER.
ARE THERE ANY OTHER ONES YOU
WANT TO DISCUSS?
>> JUST BRIEFLY ON THE MENTAL
HEALTH ISSUE, DR. DEE WAS A
NEUROPSYCHOLOGIST.
HE TESTIFIED THERE INDEED ARE
THE TWO, THE TWO STATUTORY
MENTAL HEALTH MITIGATORS, BEING
UNDER EXTREME EMOTIONAL DISTRESS
AND BEING UNABLE TO PERFORM HIS
ACTIONS TO THE REQUIREMENT OF
THE LAW.
THAT WAS NOT INTRODUCED HERE.
NO TESTIMONY IN THE ORIGINAL
TRIAL.
DR. DEE TESTIFIED THERE WAS
BRAIN DAMAGE BUT THE STATE
RECOGNIZED THE NEED FOR A
NEUROPSYCHOLOGIST.
THIS IS IN THE PENALTY PHASE.
DON'T YOU NEED NEUROPSYCHOLOGY
IN YOUR TESTING TO FIRM THIS UP,
AND HE SAID YES, AND SO THE
STATE KNEW THAT THE
NEUROPSYCHOLOGY WAS AVAILABLE
AND NEEDED.
MR. LOPEZ, JUDGE LOPEZ, NOT A
JUDGE AT THE TIME, KNEW OR
SHOULD HAVE KNOWN, SAID HE NEVER
USED A NEUROPSYCHOLOGIST AND
NEUROPSYCHOLOGY BUT THAT DOES
NOT EXCUSE HIM, BUT EVEN THE
STATE KNOWS NEUROPSYCHOLOGY WAS
A WELL ACCEPTED DISCIPLINE AT
THAT TIME AND SHOULD HAVE BEEN
USED.
EVERY WITNESS IN THE MENTAL
HEALTH DEPARTMENT, EVERY WITNESS
CONCEDED THAT THE
NEUROPSYCHOLOGY TESTING IS THE
STANDARD AND IT WAS NOT WITNESS
TO REBUT THESE FINDINGS.
THE EXPERTS THE STATE USED,
DR. TAYLOR ADMITTED HE IS NOT
QUALIFIED TO MAKE ANY KIND OF
DETERMINATIONS IN
NEUROPSYCHOLOGY TERMS.
HE IS ONLY A PSYCHIATRIST.
HE SAYS THERE'S NO BRAIN DAMAGE.
WHY IS THERE NO BRAIN DAMAGE?
NOBODY TOLD ME ABOUT ANY BRAIN
DAMAGE.
>> THE TRIAL JUDGE SAID THE
DEFENDANT'S PSYCHOLOGICAL
HISTORY OF AGGRESSION WITH
COMPULSIVENESS COUPLED WITH
PSYCHOLOGICAL TESTING IS
INDICATIVE OF BRAIN INJURY.
>> YES.
SO THAT BODY WAS MADE.
WHAT DID THIS ADDITIONAL
TESTIMONY ADD THAT WOULD HAVE
PROVIDED --
>> THE LOCUS TO THAT BRAIN
INJURY IS THE TWO STATUTORY
MENTAL HEALTH MITIGATORS THAT,
BECAUSE OF THE BRAIN INJURY HE
WAS UNDER EXTREME EMOTIONAL
DISTRESS, AND HE HAD THESE
UNCONTROLLABLE FITS THAT CAME
OVER HIM.
HE WITNESSED ONCE DURING -- WHEN
THE LUNCH BREAK OCCURRED, DURING
HIS TESTIMONY.
>> THAT IS MORE -- YOU ARE
SAYING BOTH STATUTORY FACTORS?
>> THE ABILITY TO CONFORM
FACTIONS IN THE PREMISE OF THE
LAW BASED ON THIS HISTORY OF THE
TEACHER ETC, AND MR. LOPEZ SAID,
"WELL I DIDN'T GO FOR ANOTHER
EXPERT BECAUSE WE'LL HAVE ONE."
THAT IS BECAUSE YOU DO GET MORE
THAN ONE.
IT IS UNCONSTITUTIONAL,
IF THERE WAS THE RULE EXTENT
THAT MADE IT DIFFICULT OR
IMPOSSIBLE FOR HIM TO GET A
NEUROPSYCHOLOGIST TO DO THE
FOLLOWUP.
DR. TAYLOR QUALIFIED AND
DR. LYNCH, NOT A PATHOLOGIST,
NOT A FORENSIC --
>> DR -- SAID THERE WAS A NEED
FOR NATURAL PSYCHOLOGICAL
TESTING?
>> HE SAID, "DR. BERLIN, DON'T YOU
NEED TO HAVE NEUROPSYCHOLOGICAL
TESTING TO FOLLOW UP?"
>> THAT WAS BEFORE YOU
TESTIFIED.
THE TESTIMONY THAT HE ADVISED
TRIAL COUNSEL THAT THERE WAS AN
ISSUE, THE NEED FOR
NEUROPSYCHOLOGICAL TESTING.
>> WE DON'T HAVE HIM TESTIFY AT
THE EVIDENTIARY HEARING AND I
NOW BELIEVE ANYONE HAS AN
ARGUMENT ABOUT THAT SO
PRESUMABLY, REGARDLESS OF
WHETHER BERLIN TOLD LOPEZ THAT
THE STANDARD UNDER WIGGINS AND
RAGSDALE IS YOU SHOULD RECOGNIZE
WHEN YOU HAVE, WHEN YOU HAVE
MENTAL HEALTH MITIGATORS
AVAILABLE AND YOUR EXPERT IS
GIVING -- YOU GET ANOTHER EXPERT
AND YOU GET THE EXPERTS THAT
WILL DO IT, THAT CAN DO IT AND
THE NEUROPSYCHOLOGIST IS
QUALIFIED TO DO THAT KIND OF
INVESTIGATION.
>> MAY IT PLEASE THE HONORABLE
COURT.
MY NAME IS KATHERINE BLANCO,
REPRESENTING THE STATE OF
FLORIDA.
YOUR HONORS, BEFORE I BEGIN TO
ADDRESS EACH OF THE ARGUMENTS OR
ATTEMPT TO ADDRESS EACH OF THE
ARGUMENTS, I WOULD LIKE TO
ADDRESS TWO QUESTIONS FROM THE
PANEL SPECIFICALLY QUESTIONED BY
JUSTICE ALLEN AND JUSTICE
PARIENTE.
JUSTICE BELL, YOU INQUIRED ABOUT
THE CHARGING DOCUMENT AND HOW
IT DID CHARGE SEXUAL BATTERY.
YOUR HONORS, THE STATES CITES TO
THE RECORD BY PAGE 1057 THROUGH
1058 FOR THE CHARGING DOCUMENT
AND THE CHARGE JUST BRIEFLY AS
TO THE SEXUAL BATTERY -- ALLEGED
SEXUAL BATTERY -- UPON GERALDINE
BIRCH BY VAGINAL PENETRATION
AND/OR ORAL PENETRATION OR UNION
WITH HIS SEXUAL ORGAN OR
PENETRATION WITH OBJECTS, AND IN
THE PROCESS I HAVE USED ACTUAL
PHYSICAL FORCE CAUSING PERSONAL
INJURY SO YES IT WAS CHARGED.
PENIS TO VAGINA, PENIS TO THE
VICTIM'S MOUTH, PENETRATION TO
THE VICTIM'S VAGINA BY AN OBJECT AND
THAT LEADS TO --
>> WAS IT ARGUED?
>> IT WAS CERTAINLY ARGUED YOUR
HONOR.
IT WAS INSTRUCTED TO THE JURY.
THE JURY WAS GIVEN THE
OPPORTUNITY NOT ONLY ON THE
SUBSTANTIVE BUT ON THE ATTEMPT
TO, SO THE STATE NEVER WAIVED
FROM IT.
AS A MATTER FACT, WITH RESPECT
TO THE ORAL SEXUAL OFFENSE, THE
PROSECUTOR ARGUED AT LENGTH THAT
A WOMAN WHO ALLEGEDLY HAD
CONSENTED TO PERFORM ORAL SEX ON
HER PARTNER WOULD NOT THEN -- AS
IT WERE, A WILLING SEXUAL
PARTNER.
SHE WOULD NOT CLAMP DOWN ON THE
MALE PARTNER'S PENIS, AND
INDICATIVE OF THE FORCE THAT WAS
USED, THE PATCHES OF HAIR THAT
WERE PULLED FROM HER HEAD, THE
BOTTOM OF HER DENTURES OF COURSE
WERE BROKEN AND OUT OF HER
MOUTH, AND OF COURSE THE
FEROCIOUS INJURIES.
THE LACERATION OF COURSE TO HER
HEART, HER LUNGS.
HER SPLEEN WAS PULVERIZED, HER
KIDNEYS WERE DETACHED, NEARLY
EVERY RIB WAS BROKEN.
HER THROAT, HER VOICEBOX WAS
CRUSHED AND IT IS A VERY
SIGNIFICANT INJURY AND LEADING
TO THE QUESTION THAT JUSTICE
PARIENTE ASKED WITH REGARDS TO
DR. MILLER, VERY BRIEFLY I WOULD
LIKE TO DIRECT THE COURT'S
ATTENTION TO THE POSTCONVICTION
RECORD, VOLUME 12, TWO PAGES OF
THIS POSTCONVICTION RECORD, 1953
IS THE FIRST PAGE AND THE
POSTCONVENTION COURT INQUIRING
OF DR. MILLER.
THE COURT, GENERALLY SPEAKING,
THE LACERATIONS THAT YOU FOUND
WOULD INVOLVE PENETRATION.
ANSWER: IN MY OPINION THEY
WOULD.
ALSO YOUR HONORS, AT PAGE 1975,
THIS IS AT CROSS-EXAMINATION,
THIS QUESTION AND ANSWER IN THE
VOLUME 12 CROSS-EXAMINATION.
DR. MILLER YOUR OPINION HAS NOT
CHANGED THAT YOU BELIEVE THAT
THE TESTS YOU REFERRED TO IN
YOUR AUTOPSY REPORTS -- EXCUSE
ME THAT YOU REFERRED TO IN YOUR
AUTOPSY REPORT, THE RADIATING
TEARS WERE CAUSED BY PENETRATION
AND NOT BY AN OBJECT, A LARGE
OBJECT INTO THE VAGINA OF THE
VICTIM.
ANSWER: YES.
OF AN OBJECT LARGE ENOUGH TO
STRETCH ENOUGH TO PRODUCE THOSE
TEARS.
SO YOU STILL HAVE DR. MILLER
CONFIRMING THAT IN FACT THERE
WERE LACERATIONS INSIDE THE
VAGINA.
AND, OPPOSING COUNSEL HAS TAKEN
TO TASK DR. LYNCH'S TESTIMONY
AND DR. LYNCH, WHO DOES
RECONSTRUCTIVE SURGERY AND IS AN
ASSOCIATE PROFESSOR AT THE
UNIVERSITY OF FLORIDA, SHE IS
ALSO A PRACTICING OB-GYN AND
BOARD CERTIFIED, SO TO SAY SHE
IS A LYING GYNECOLOGIST IS QUITE
MISLEADING.
BUT SHE ALSO TESTIFIED THAT THE
INJURIES WERE INSIDE WHAT IS
TERMED THE VAGINA SO THERE YOU
HAVE YOUR PENETRATION AND YOU
HAVE AT THE VERY LEAST ATTEMPTS
SO THE  STATE THEORY WAS NEVER
WAVERED, THAT IT WAS ALWAYS
ALLEGED IN THE ALTERNATIVE,
ARGUES IT WAS INDEPENDENTLY
SUPPORTED BY AND THE ATTEMPT NOW
TO RELITIGATE THE SEXUAL BATTERY
AND FELONY MURDER WITH THE
SEXUAL BATTERY IS CERTAINLY
PROCEDURALLY BARRED.
>> JUST SO I UNDERSTAND, JUST
UNDERSTANDING THIS THEORY OF THE
CASE WAS WHAT?
DID IT BEGIN CONSENSUALLY? BECAUSE
THERE WERE WITNESSES THAT SAID
THAT THEY HAD HEARD HER
SAY, GIVE ME MONEY AND WE CAN GO
-- THAT THEY WENT OVER THERE.
SHE WENT VOLUNTARILY.
DOES THE STATE SAY THIS STARTED
OUT VOLUNTARY AND THEN IT
ESCALATED?
>>  THE  STATE ALWAYS QUESTIONED
THAT YOUR HONOR.
THE  STATE QUESTIONED THAT BY
QUESTIONING THE FACT THAT THE
DEFENDANT WAS SEEN ACTUALLY
FOLLOWING THE VICTIM, THAT IN
FACT, IF SHE WERE A PROSTITUTE,
AS THE DEFENDANT TESTIFIED, THAT
SHE OFFERED HIM SEX IN EXCHANGE
FOR DRUGS AND MONEY, THAT NUMBER
ONE SHE WOULD HAVE -- AND TWO
THAT SHE WOULD NOT HAVE BITTEN
DOWN ON THE DEFENDANT'S PENIS,
LIKE YOU SAID, AND THE FEROCIOUS
INJURIES SHE SUSTAINED WERE THE
RESULT OF AN UNWILLING VICTIM.
THIS IS A WOMAN WHO WAS NOT
WILLING TO GIVE ORAL SEX TO THIS
MAN, WHO WAS FORCED TO DO IT.
THIS WAS A WOMAN WHO WAS FORCED.
>>  THE THEORY WAS SHE WAS FORCED
TO DO THAT AND HE THEN RAPED HER
AND THE OTHER INJURIES OCCURRED
SUBSEQUENTLY?
>> CERTAINLY YOU HAVE THE
DEFENDANT'S STATEMENTS, SO THE
INITIAL STATEMENTS WHERE HE
DENIED ANY INVOLVEMENT.
THE SECOND STATEMENT DOES NOT
MENTION VAGINAL INTERCOURSE.
LATER HE DOES SAY THERE WAS A
BRIEF ATTEMPT AT VAGINAL
INTERCOURSE, THEN ACCORDING TO
HIM MS. BIRCH SAID NO, SHE WOULD
PERFORM ORAL ON HIM INSTEAD, SO
THE DEFENDANT THEN SAID, "I
BECAME ENRAGED."
SHE WOULD NOT LET LOOSE AND WHEN
SHE FINALLY LET LOOSE HE HAD
ALREADY -- SHE WAS NOT SPEAKING,
SHE WAS JUST MAKING SOUNDS AND
THEN HE KICKED HER.
THE STATE'S THEORY ALWAYS WAS
THAT THIS WAS NEVER CONSENSUAL, THIS
WAS FORCED.
THAT HE TOOK ADVANTAGE OF THIS
WOMAN, BUT THAT EVEN AS IT
INITIALLY BEGAN AS CONSENSUAL
CERTAINLY AT SOME POINT BECAME
NON-CONSENSUAL BY EVIDENCE -- AS
EVIDENCED BY THE BRUTALITY.
CERTAINLY UNDER APPEAL THIS
COURT UNDER FELONY MURDER WAS
SEXUAL BATTERY BEING UNDERLINED
FOR THE FELONY MURDER.
>> SHOULD I DIGRESS ONE MOMENT,
MR. GEMMER HAS SUGGESTED THAT
THE DOCTOR'S TESTIMONY, WITH
RESPECT TO THE MENTAL HEALTH,
MEANT STATUTORY MENTAL-HEALTH
LITIGATORS AND DIRECTORS, THE
COURT'S ATTENTION TO PAGE NINE
OF THE TRIAL JUDGE'S ORDER,
WHERE HE PRESENTED A
COMPREHENSIVE SUMMARY OF THE
TESTIMONY OF THE POSTCONVICTION
WITNESSES AT ABOUT THE MIDDLE OF
THE PAGE.
THIS IS THE TRIAL JUDGE SPEAKING
WITH RESPECT TO HIS FINDINGS AND
SUMMARY OF THE TESTIMONY,
DR. DEE TESTIFIED HE COULD NOT
COMMENT ON THE ABILITY OF THE
DEFENDANT TO APPRECIATE THE
CRIMINALITY OF THE CONDUCT BUT
HE TESTIFIED WITH THE NATURE OF
THE BRAIN DAMAGE OF MR. TAYLOR,
IT WOULD BE VERY DIFFICULT FOR
HIM TO PERFORM HIS CONDUCT TO
THE DICTATES OF THE LAW.
SO, YOU SEE THAT EVEN THEN YOU
DON'T HAVE A STRONG, FROM THE
DEFENSE PERSPECTIVE A STRONG
ASSERTION THAT STATUTORY
MENTAL HEALTH MITIGATORS WOULD
HAVE BEEN SATISFIED, NOT ONLY
THAT YOU ALSO HAVE DR. DONALD
TAYLOR, WHO IS A PSYCHIATRIST,
BOARD CERTIFIED PSYCHIATRIST,
TESTIFYING, WHICH WE DID NOT
HAVE AT THE 1992 PENALTY PHASE,
THE STATE DID NOT CALL A MENTAL
HEALTH WITNESS, BUT NOW ON
POSTCONVICTION THEY PRESENT
DR. DEE AND PSYCHIATRIST
DR. DONALD TAYLOR, WHO TESTIFIED
THAT HIS CONCLUSIONS ARE THAT
THE DEFENDANT DOES NOT HAVE
BRAIN DAMAGE.
AND SO YOU CERTAINLY HAVE NO
COMPETING TESTIMONIES, WHEREAS AT
THE TIME OF THE PENALTY PHASE,
THE 1992 PENALTY PHASE, YOU HAVE
REPRESENTED BY A VERY
EXPERIENCED FORMER PROSECUTOR
AND DEFENSE COUNSEL, MANUEL
LOPEZ, JUDGE LOPEZ NOW.
HE WAS VERY AWARE OF HIS
RESPONSIBILITY IN PRESENTING THE
PICTURE OF THIS PARTICULAR
DEFENDANT.
HE PRESENTED SEVERAL WITNESSES
TO SUPPORT NOT ONLY HIS THEORY
IN MITIGATION BUT HE ALSO
PRESENTED ARGUMENTS IN AN
ATTEMPT TO MINIMIZE THE
AGGRAVATION THE STATE HAD
PRESENTED.
SPECIFICALLY YOU HAVE GOT THE
PRIOR VIOLENT FELONY CONVICTION
AND HE ARGUED IN TIME, BUT WAS
NOT TRULY REMOTE WHEN YOU LOOKED
AT THE TIME THE DEFENDANT WAS
INCARCERATED BUT ALSO THE FACT
THE DEFENDANT HAD BEEN CONVICTED
AS AN ADULT, SO WE ARGUE THAT TO
THE TRIAL COURT IN AN EFFORT TO
SHOW THAT SOMEHOW THAT
AGGRAVATING FACTOR SHOULD BE
MINIMIZED.
WITH RESPECT TO THE HEINOUS,
ATROCIOUS AND CRUEL FACTOR HE
ALSO ARGUED, AN ARGUMENT TO
BE MADE, UNDERSTANDING CERTAINLY
CONVICTION HAD BEEN PROMPTED BY
THE COURT ON DIRECT APPEAL WITH
RESPECT TO THE SEXUAL BATTERY
THAT WAS -- THE HEINOUS,
ATROCIOUS AND CRUEL FACTOR.
HE ARGUED THERE WAS A SUGGESTION
PERHAPS THE VICTIM WAS RENDERED
UNCONSCIOUS AND UNAWARE OF THE
BEATINGS OR THE MAGNITUDE OF THE
BEATINGS.
>> BUT THIS WAS AT THE
RESENTENCING?
>> THIS WAS AT THE 1992
RESENTENCING YOUR HONOR.
>> SHE PROBABLY WAS UNCONSCIOUS.
>> JUSTICE PARIENTE, ACTUALLY --
JUDGE LOPEZ, MR. LOPEZ AT THE
TIME, HAD ARGUED THAT THAT WAS
AN INFERENCE THAT COULD BE MADE,
GIVEN DR. MILLER'S TRIAL
TESTIMONY.
>> IN TERMS OF LOOKING AT WHAT
KIND OF JOB THE DEFENSE LAWYER
DOES, CERTAINLY ARGUING
SOMETHING THAT DOES NOT HAVE ANY
BASIS IN THE EVIDENCE DOES NOT
MAKE THEM INEFFECTIVE COUNSEL,
BUT HE PUT ON, HE PUT ON TO ME
THE ONLY WAY THAT THIS CASE
BECOMES A DIFFERENT CASE IS, AND
WE HAVE HAD SOME OF THESE CASES
WHERE THERE IS, SOMETIMES IT
MIGHT START OUT AS A VOLUNTARY
SEXUAL ACT AND THEN SOMETHING
OCCURS TO ENRAGE A DEFENDANT,
WHO HAS A FRONTAL LOBE INJURY
AND WHEREAS A NORMAL PERSON
MIGHT GET MAD AND WALK AWAY,
SOMEBODY THAT DOES HAVE BRAIN
DAMAGE, FRONTAL LOBE INJURY, IT
IS A SYNDROME AND WE KNOW THAT
IS WHAT CAUSES RAGE REACTION,
WILL THEN BECOME VIOLENT AND IT
SEEMS THAT THAT HAPPENED.
BUT, WHAT YOU ARE SAYING IS THAT
THAT IS WHAT THEY TRIED TO DO TO
THE MENTAL HEALTH EXPERTS THAT
THEY HAD AT THE TIME.
>> WELL, THEY CALLED DR. BERLIN
AND POSTCONVICTION, BOTH THE CCR
RETAINED -- THEY AGREED
DR. BERLIN WAS VERY WELL
RESPECTED AND CERTAINLY
RECOGNIZED HIS CREDENTIALS.
AND JUDGE LOPEZ CALLED
DR. BERLIN, WHO ESTABLISHED THAT
INDEED THERE WAS A DISCREPANCY
AND HE GAVE AN MPI, THE
DEFENDANT TESTED OUT AND HIS
AVERAGE WAS I BELIEVE 104.
HIS HIGHEST WAS 116 AND HIS
LOWEST WAS 91 AT POSTCONVICTION.
>> THAT IS A SIGNIFICANT FINDING
WHEN YOU HAVE A PERFORMANCE IQ
THAT HAS A BIG GAP WITH THE
VERBAL.
THAT IS A SIGN THAT THERE IS,
THERE IS A POSSIBILITY OF BRAIN
DAMAGE AND FURTHER TESTING IS
NECESSARY.
>> VERY INTERESTINGLY,
DR. DONALD TAYLOR, DURING HIS
MEDICAL RESIDENCY, HE WAS TESTED
AND THERE WAS A BIG DISCREPANCY
IN HIS SCORES.
HE IS CERTAINLY A PRACTICING
PSYCHIATRIST.
>> BRAIN DAMAGE DOESN'T
NECESSARILY MEAN -- SOMETHING IS
LINKED UP WITH BEHAVIOR.
>> CERTAINLY, AND YOU HAVE
DR. BERLIN WHO HAS REFUSED THE
RECORDS.
THIS DEFENDANT WAS IN FOSTER
CARE FROM THE TIME HE WAS AGE 7
TO 14.
DR. BERLIN HAD THE BENEFIT OF DR
-- REPORT.
THAT PENALTY PHASE WAS REVERSED
FOR A NEW RESENTENCING HEARING
BASED ON IMPROPER COMMENT OR
ARGUMENT YOUR HONORS, SO DR --
THEN TEST REPORTS WERE AVAILABLE
FOR DR. BERLIN SO THEY DID HAVE
THE BENEFIT OF TWO MENTAL HEALTH
EXPERTS.
HE WAS NOT RECALLED IN PART,
MAYBE ATTRIBUTABLE PERHAPS TO
THE BELIEF THAT THE DEFINITION
OF CRAZY MAY BE REPEATING THE
SAME THING AND EXPECTING THE
SAME RESULTS SO THEY WENT WITH A
DIFFERENT EXPERT.
THE DEFENSE WENT WITH
DR. BERLIN, WHO WAS VERY
RESPECTED.
>> WERE THE RECORDS OF WHAT
HAPPENED TO HIM IN FOSTER CARE,
WERE THOSE INTRODUCED INTO THE
PENALTY PHASE?
>> HE WAS IN FOSTER CARE AT THE
RUTLEDGE HOME.
ONE OF THE FOSTER CARE CHILDREN,
WHO OF COURSE WAS AN ADULT AT
THE TIME OF THE TRIAL, TESTIFIED
AT THE '92 PENALTY PHASE, AND
THE DEFENDANT'S BROTHER ALSO
TESTIFIED.
HE WAS ALSO AT THE MENDEZ CENTER
FOR A WHILE.
THERE WAS A DISCUSSION BY
DR. BERLIN.
AND POSTCONVICTION A WITNESS WAS
CALLED ABOUT THE MENDEZ CENTER,
THAT IT WAS PRIMARILY -- IT WAS
FOR CHILDREN THAT HAD
OPPOSITIONAL DEFIANCE DISORDERS,
THAT THEY WERE PLACED THERE FOR
TREATMENT AND THE WITNESS CALLED
POSTCONVICTION AND SAID I CAN
SEE -- HE WAS AN ELEMENTARY
SCHOOL-AGE CHILD AT THE TIME.
WHEN I WOULD SEE HIM, HE HAD
ALREADY CALMED DOWN FROM HIS
QUICK TO ANGER.
WHATEVER EPISODES HE HAD AND
THEN HE WAS ALWAYS -- AT THAT
POINT IN TIME BUT THE DEFENSE
NOT ONLY PRESENTED THE MENTAL
HEALTH TESTIMONY FROM DR. BERLIN
AND AGAIN, ALTHOUGH CERTAINLY
THE PROSECUTOR CROSS-EXAMINED
HIM, THE STATE DID NOT PRESENT
ANY COMPETING MENTAL HEALTH
EXPERTS IN POSTCONVICTION WHERE
YOU HAVE DR. TAYLOR SAYING NO,
HE DID NOT FIND BRAIN DAMAGE BUT
IN ADDITION YOU HONOR WITH
RESPECT TO THE FOSTER HOME
EXPERIENCE, AND IT IS ADDRESSED
IN THE SENTENCING ORDER, THERE
IS A RECOGNITION THAT HE WAS
PUNISHED FOR BEDWETTING AND IN
POSTCONVICTION, WHAT THE CCR
ADDED, THEY ADDED A WITNESS WHO
WAS AT THE SAME FOSTER HOME FOR
SIX YEARS, WHO WAS ALSO BEAT
WHEN HE, WHEN THE CHILDREN GOT
INTO TROUBLE OR WHEN
MRS. RUTLEDGE, WHO WAS THE
HOMEOWNER AND RULED ACCORDING TO
THE WITNESS, RULED WITH AN IRON
FIST.
THIS WAS MR. HOWARD URY WHO WAS
QUITE SUCCESSFUL.
HE HAS HELD DOWN A JOB FOR A
NUMBER OF YEARS.
HE WORKS FOR THE MEDIA
CORPORATION IN TAMPA, AND HE HAS
GONE ON TO BECOME A VERY
SUCCESSFUL YOUNG MAN.
AND SO, THAT WOULD BE A VERY BIG
DOUBLE EDGED SWORD, TO BRING IN
SOMEONE THAT HAS PROVED TO BE A
VERY OUTSTANDING CITIZEN AND WAS
RAISED FOR SIX YEARS IN THE SAME
ABUSIVE FOSTER HOME.
NOW, I PUT QUOTES AROUND THAT
BECAUSE MR. URY, MR. PERRY
TAYLOR GOT SPANKINGS BUT HE DOES
NOT KNOW THE EXTENT OF THEM, BUT
HE WAS SINGLED OUT FOR
BEDWETTING INCIDENTS, SO YOU
HAVE, YOU DO HAVE TESTIMONY AT
THE RESENTENCING OF THE FOSTER
HOME EXPERIENCE, OF THE MENTAL
HEALTH ISSUES, OF HIS BROTHERS.
WITNESSES TESTIFIED TOO, AND HIS
GRANDMOTHER ALSO TESTIFIED.
HIS GRANDMOTHER TESTIFIED IN 92
IN THE RESENTENCING HEARING SO
ANYTHING THAT CCR SAID PERHAPS
IT WOULD HAVE BEEN BETTER TO
HAVE HIS MOTHER TESTIFY.
HIS MOTHER IN NO WAY SHAPE OR
FORM WAS GOING TO TESTIFY ON HIS
BEHALF.
SHE DID NOT WANT TO BE THERE.
BUT, THE FACT THAT SHE HAD
NEGLECTED HER CHILDREN WAS MADE
READILY APPARENT AT THE '92
RESENTENCING HEARING.
AND NOW THE BEST THEY CAN ASK
FROM THE DEFENDANT'S BROTHER IN
POSTCONVICTION -- AND DR. TAYLOR
ADDRESSES THAT AND SAYS YOU'VE
MAY HAVE HARSH A CHILDHOOD BUT
NOT EVERYBODY RENDERS YOU
PERMANENTLY BRAIN DAMAGED.
AND SO, THE ISSUES THAT ARE
BEFORE THE COURT IN
POSTCONVICTION ARE ESSENTIALLY A
RELITIGATION OF THE SUFFICIENCY
OF THE EVIDENCE CLAIM WHICH THIS
COURT HAS PREVIOUSLY ADDRESSED,
WHICH PROCEDURALLY IS BARRED TO
THE EXTENT THAT IT TRIED TO BE
SHOEHORNED IN UNDER TRIAL
COUNSEL OR NEWLY DISCOVERED
EVIDENCE.
THE TRIAL COURT IN
POSTCONVICTION REJECTED THOSE
CLAIMS, MADE SPECIFIC FINDINGS
SUPPORTED BY SUBSTANTIAL
EVIDENCE IN THIS RECORD AND THE
TRIAL COURT IN POSTCONVICTION
CERTAINLY DID A METICULOUS JOB
OF ADDRESSING THE ISSUES THAT
WERE RAISED IN PROVIDING THIS
COURT WITH A VERY COGENT FINAL
ORDER, AND I WOULD ASK THE COURT
TO AFFIRM THE DENIAL OF
POSTCONVICTION RELEASE.
THANK YOU.
>> I BELIEVE YOU HAVE USED YOUR
TIME BUT I WILL GIVE YOU A
COUPLE OF MINUTES FOR REBUTTAL.
>> BACK TO THIS COURT'S OPINION
IN TAYLOR ONE, THE ONLY REASON,
AND WE WERE DISCUSSING
CIRCUMSTANTIAL EVIDENCE, IN
EVERY REASONABLE HYPOTHESIS, HOW
DID YOU OVERCOME REASONABLE
HYPOTHESIS?
IT IS BECAUSE DR. MILLER
TESTIFIED ABOUT THE INJURIES TO
THE GENITALS.
>> HOW WAS THIS CIRCUMSTANTIAL
EVIDENCE?
>> BECAUSE YOU DON'T HAVE ANY
EVIDENCE OF A RAPE.
>> I THOUGHT THE DEFENDANT
ADMITTED THERE WAS A CONSENSUAL
ENCOUNTER.
HIS POSITION WAS THERE WAS A
CONSENSUAL ENCOUNTER.
WHEN YOU TALK ABOUT A
CIRCUMSTANTIAL CASE, THE DEFENSE
SAYS I AM NOWHERE NEAR THAT,
THAT IS NOT THE CASE BECAUSE YOU
TALK ABOUT CIRCUMSTANTIAL
EVIDENCE, AND THAT WAS WHAT
TAYLOR DISCUSSED, HOW YOU
OVERCOME THE THEORY OF
INNOCENCE, THERE WAS CONSENT AND
THE COURT SAYS IT IS BECAUSE,
BECAUSE THE INJURIES.
>> AS BEING FROM THE JUNGLES AND
AN ARGUMENT AND THE JUDGE TOLD
MR --  YOU HAVE GOT NOTHING ON
SEXUAL ORGANRY.
THE ONLY THING YOU HAVE GOT IS
BY OBJECT.
>> AS FAR AS THE RELIABILITY, HOW
IT COULD OCCUR WITHOUT BEING A
DELIBERATE ACT.
>> IT IS POSSIBLE THAT IT CAME
DURING THE ORAL SEX AND WAS
NIPPING IN THE SENSE OF BEING
LOOSE AND CATCHY AS OPPOSED TO A
DELIBERATE BITE, AS A RESISTANCE
TO INVOLUNTARY ORAL SEX.
DR. LYNCH SAYS THE OPENING WAS 1
INCH, AND THEREFORE YOU COULD
NOT GET A SHOE IN, BUT YOU CAN
GET A BABY THROUGH, AND IF YOU
CAN'T GET A SHOE IN YOU CAN'T
GET A HAND IN, AND THE STATE'S
THEORY, IT WAS RAPE BY HAND, AND
SO YOU DON'T HAVE EITHER ONE,
AND THEN YOU ARE BACK TO THE
UNLUBRICATED PENIS.  THAT WAS OUR
TARGET IN THE ORIGINAL TRIAL.
WHEN ASKED WHETHER HE DENIED
WHETHER PERRY DENIED VAGINAL SEX
IN THE CONFESSION, MCNAMARA SAYS,
"HE TOLD ME ABOUT THE ORAL SEX," SO
IT WASN'T A DENIAL OF VAGINAL
SEX, IT WAS AN ADMISSION OF ORAL
SEX AND WHAT THE DETECTIVE SAYS, "SIR
DID YOU COMMIT VAGINAL SEX?
DID YOU HAVE SEX, DID YOU HAVE
SEX WITH HER?"
PERRY SAID, "YES, ORAL SEX," AND
THEN LATER ON IT REFLECTS ON
SOME MORE, THERE WAS THAT THING
THAT REALLY WAS NOT SEX, IT WAS
ATTEMPTED SEX IN THE VAGINAL
AREA.
>> TO STAND ON THE TESTIMONY
WITH REGARD TO WHAT THE JUDGE
SAID, THE JUDGE IS INCORRECT,
DR. DEE WAS FULLY SUPPORTIVE OF
THE MENTAL HEALTH MITIGATORS
CLAUSE HE ALSO FOUND MEMORY
FUNCTIONING -- THE IQ SHOWS
FAULT.
THERE IS EVEN GREATER DISPARITY
IN THE FUNCTIONING VERSUS THE
TWO KINDS OF MEMORY THAT ARE
MEASURED BY THE
NEUROPSYCHOLOGICAL TESTING.
DR. TAYLOR -- KNOWN BRAIN DAMAGE
BECAUSE THEY DID NOT ASK ABOUT
IT.
THEY DID NOT ASK SUFFICIENTLY
ABOUT IT AND HE ADMITTED, IF YOU
HAVE BRAIN DAMAGE YOU MIGHT NOT
REMEMBER A 5-YEAR-OLD INJURY.
THE BROTHER TESTIFIED TO AT
LEAST TWO BANISTER FALLS THAT
REQUIRED GOING TO THE HOSPITAL,
THE HOSPITAL WHERE RECORDS LONG
SINCE DISAPPEARED, AND HE
SUFFERED A CONCUSSION AND A
BROTHER SAYS AFTER THAT HE
STARTED HAVING MIGRAINES
AND HIS BEHAVIOR CHANGED.
HE STARTED HAVING THESE SPELLS
WHERE YOU COULD SEE HIS FACE
CHANGE, JUST AS DR. DEE SAID, SO
THOSE HEAD INJURIES ARE WHAT
STARTED THE WHOLE PROBLEM WITH
THE FRONTAL LOBE UNCONTROLLABLE
RAGE.
>> AND YOU HAVE EXHAUSTED
ADDITIONAL TIME.
THANK YOU VERY MUCH.
THE COURT WILL TAKE IT UP UNDER
CONSIDERATION.
THE COURT WILL STAND IN RECESS
UNTIL 8:30 TOMORROW MORNING.
ALL RISE.