>> PLEASE RISE.

HEAR YE, HEAR YE, HEAR YE.

THE SUPREME COURT OF FLORIDA IS

NOW IN SESSION.

ALL WHO HAVE CAUSE TO PLEA, DRAW

NEAR, GIVE ATTENTION, AND YOU

SHALL BE HEARD.

GOD SAVE THIS UNITED STATES,

THIS GREAT STATE OF FLORIDA, AND

THIS HONORABLE COURT.

LADIES AND GENTLEMEN, THE

FLORIDA SUPREME COURT.

PLEASE BE SEATED.

>> GOOD MORNING AND WELCOME TO

THE FLORIDA SUPREME COURT.

THE FIRST CASE ON OUR AGENDA

THIS MORNING IS MARK TWILEGAR

VERSUS STATE OF FLORIDA.

>> GOOD MORNING, I'M KIN THEE

YEAH DODGE AND I'M AN ASSISTANT

PUBLIC DEFENDER OUT OF THE TENTH

JUDICIAL CIRCUIT AND I'M

REPRESENTING MARK TWILEGAR.

HE WAS CONVICTED OF THE FIRST

DEGREE MURDER OF MR. DAVID

THOMAS AND HE WAIVED THE PENALTY

PHASE JURY AND WAIVED THE

PRESENTATION OF MITIGATION AND

ALSO THE INVESTIGATION INTO

MITIGATION, HE WAS SENTENCED TO

DEATH AND THAT IS WHY THE CASE

IS BEFORE US, YOUR HONOR, THIS

IS A CIRCUMSTANTIAL EVIDENCE

CASE AND I WOULD LIKE TO DISCUSS

THE ISSUES IN THE ORDER THE

APPEARANCE BRIEF FOCUSING ON

ISSUES 1, 2 AND 3.

I AM ASSUMING THE COURT HAS A

RUDIMENTARY KNOWLEDGE OF THE

FACTS BUT IF THERE ARE ANY YOU

NEED HELP WITH, PLEASE INTERRUPT

ME.

THIS IS A CIRCUMSTANTIAL

EVIDENCE CASE, IN THAT IT

REGARDS THAT THE IDENTITY OF THE

PERPETRATOR IS AT ISSUE AND IT

WAS PROVED BY CIRCUMSTANTIAL

EVIDENCE, AND, ALSO, THE FACT OF

WHETHER OR NOT THERE WAS EVEN A

ROBBERY WAS PROVED BY

CIRCUMSTANTIAL EVIDENCE.

AND, OF COURSE, THE PERPETRATOR

OF THE ROBBERY IF ONE WAS

COMMITTED WAS PROVED BY

CIRCUMSTANTIAL EVIDENCE, THE

FIRST THING I NEED TO ADDRESS

BRIEFLY IS THE JURY VERDICT

ITSELF.

IT WAS VERY, KIND OF UNIQUE IN

THIS CASE, A SPECIAL VERDICT

FORM.

AND THIS VERDICT FORM READ --

>> THE SPECIAL VERDICT FORM.

>> THAT WAS BROUGHT UP BY THE

JUDGE AND APPARENTLY HE HAD GONE

TO A CONFERENCE, IN WHICH THERE

WAS I THINK A JUDGE EATON WHO

HAD HELD THE CONFERENCE AND HE

LIKED THE IDEA OF A SPECIAL JURY

VERDICT AND THOUGHT THE JUDGE

HAD A GOOD IDEA AND PROPOSED IT

AND, EVERYBODY KIND OF BALKED AT

IT, AT FIRST, AND -- YOU STARTED

NICELY SAYING YOU'LL GIVE US AND

OVER VIEW OF THE FACTS AND IN

ORDER AND WHAT ISSUE IS AN

OBJECTION TO THE VERDICT FORM?

>> THERE IS NO OBJECTION TO THE

VERDICT FORM.

WHAT THIS HAS TO DO WITH, WAS

ACTUALLY WHAT IS THE MAN

CONVICTED OF.

AND THAT ACTUALLY HAS TO DO WITH

THE SUFFICIENCY ARGUMENT BECAUSE

MY ARGUMENT IS THAT HE WAS

CONVICTED OF PREMEDITATED FIRST

DEGREE MURDER AND NOT FELONY

MURDER AND THAT IS THE TIE-IN TO

THE VERDICT FORM.

BECAUSE, IF YOU LOOKED AT THE

VERDICT FORM, IT SAYS, IF YOU

FIND THE DEFENDANT WAS -- HAS

COMMITTED FIRST DEGREE PLEASE

ANSWER THE FOLLOWING QUESTION,

BLANK OF NUMBER FIND THE KILLING

WAS PRE-MED DAY, BLANK OF OUR

NUMBER FIND IT WAS COMMITTED

DURING A ROBBERY OR ATTEMPTED

ROBBERY --

>> AND ISN'T THAT IN -- AND THE

STATE HAS ACCEPTED THAT IT WAS A

PREMEDITATED MURDER VERDICT AND

THERE WAS SUFFICIENT EVIDENCE TO

SHOW THAT THIS DEFENDANT

PREMEDITATED THE MURDER.

I MEAN, ISN'T --

>> RIGHT.

>> LET'S GET TO THE FACTS THAT

ARE MOST FAVORABLE TO THE STATE,

THE INFERENCES AND THE ACTUAL

FACTS, OF WHAT OCCURRED IN THIS

CASE.

>> RIGHT.

THE STATE IS CONTESTING,

HOWEVER, THE STATE IS SAYING

THAT THIS VERDICT -- THIS

CONVICTION CAN BE -- HELP ON

BOTH THEORIES AND I'M SAYING NOT

ONLY CAN IT NOT BE UPHELD ON

BOTH THEORIES, WHEN YOU GO AND

TALK ABOUT WHETHER OR NOT MY

CLIENT WAS A PERPETRATOR OR

WHETHER OR NOT THIS WAS THE --

THE EVIDENCE WAS SUFFICIENT TO

PROVE PREMEDITATION YOU CAN'T

USE THE FACTS OF THE ROBBERY,

BECAUSE, IN EFFECT, HE WAS

ACQUITTED OF THOSE.

HE WAS CHARGED BY INDICTMENT,

WITH JUST THE FIRST DEGREE

MURDER, HE WAS NOT SEPARATELY

CHARGED WITH THIS UNDERLYING

ROBBERY, AND EVEN THOUGH THE

INDICTMENT HAS THE LANGUAGE

COUCHED IN THE ALTERNATIVE.

THERE WAS NO SECOND COUNT OF

ROBBERY.

SO, WHEN YOU GET TO THIS POINT,

WHERE YOU GET THE VERDICT FORM,

AND THEY ANSWER THE -- 12 OF OUR

MEMBERS FIND THE KILLING WAS

PREMEDITATED AND BLANK MEANS

ZERO.

>> EVEN IF YOU ACCEPT YOUR

ARGUMENT THAT THIS IS A

PREMEDITATED MURDER CASE NOT A

FELONY MURDER CASE.

>> YES.

>> ISN'T THERE EVIDENCE HERE OF

PREMEDITATION?

>> I'M SAYING THAT ALL OF IT IS

CIRCUMSTANTIAL.

AND I WILL --

>> OKAY.

WE ACCEPT THAT IS

CIRCUMSTANTIAL.

BUT -- YOU CAN STILL --

>> I'M SORRY I'M NOT BEING

CLEAR.

>> YOU CAN STILL PROVE

PREMEDITATION.

>> YES.

YOU CAN --

>> BY CIRCUMSTANTIAL EVIDENCE.

>> BUT THAT EVIDENCE HAS TO BE

INCONSISTENT WITH THE THEORY OF

GUILT AND THERE IS ONLY ONE FACT

DIRECTLY INCONSISTENT WITH THE

HYPOTHESIS OF INNOCENCE AND

THERE IS A CONTRADICTION BETWEEN

WHERE HE SAYS HE WAS ON THE 6TH.

>> AND THAT IS NOT -- DOESN'T

THAT UNRAVEL THE WHOLE THING.

>> NO.

NO.

BECAUSE --

>> THAT THIS IS ONLY THING,

WHICH I WOULDN'T CONCEDE BUT IF

THERE IS ONE THING THAT IS

INCONSISTENT WITH HIS STORY, THE

WHOLE STORY --

>> NO, THE WHOLE STORY DOES NOT

FALL DOWN.

IT DOESN'T FALL DOWN, BECAUSE

THE SIXTH WAS NOT THE DAY

MR. THOMAS DISAPPEARED AND THAT

WAS THE DAY BEFORE AND IT WAS

INCONSISTENT TESTIMONY, AND IT

WAS ALSO -- THERE IS A -- THE

STATE'S CASE IS INCONSISTENT ON

THAT POINT, BECAUSE WHAT HAPPENS

WAS ON THE 6TH, SUPPOSEDLY,

MR. THOMAS SAYS HE IS DRIVING

DOWN, HE TELLS HIS GIRLFRIEND,

MS. SABINA, VALERIE SABINA, HE

TELLS HIS GIRLFRIEND THAT HE IS

GOING TO COME DOWN TO FLORIDA

AND HE'S IN ALABAMA AND MAKING

REPAIRS ON HIS HOUSE AND WHAT HE

DOES IS DRIVES UP TO MONTGOMERY,

ALABAMA WITH MR. TWILEGAR AND

THERE IS NO ARGUMENT ABOUT THAT,

IT WAS PROBABLY THE 2ND OF

AUGUST, HE DRIVES THERE AND THEY

ARE SUPPOSED TO PUT A DICK ON A

HOUSE, IT IS A HISTORIC HOUSE

AND HE NEEDED SPECIAL PERMITS

AND FOR SOME REASON DIDN'T GET

IT AND MR. THOMAS DECIDES TO

DRIVE BACK DOWN.

ON THE 6TH.

AND HE TELLS MR. FABINA HE IS

DRIVING DOWN WITH THE APPELLANT

BUT THE STATE HAS EVIDENCE

PLACING MR. THOMAS AND

MR. TWILEGAR AT THE MONTGOMERY

AT 3:00 IN THE AFTERNOON ON THE

6TH.

AND MR. THOMAS'S WIFE TESTIFIED

IT TAKES FROM 10 TO 14 HOURS TO

GET FROM MONTGOMERY DOWN TO FORT

MYERS AND IF YOU DO THE MATH,

THAT WOULD MAKE THEM COMING IN

BETWEEN -- SOMEWHERE BETWEEN

1:00 AND 3:00 IN THE MORNING AND

IF YOU ADD, 3:00 PLUS TEN HOURS.

>> BUT YOU'VE GOT THE -- LET'S

SEE, THE GIRLFRIEND, WHO IS --

DIDN'T SHE SEE THEM AT THE MOTEL

--

>> NO.

>> AT 11:00 THAT EVENING.

>> IT WAS A HOUSE.

I GUESS, WHAT HAPPENED --

>> WELL, BUT SAW THEM THAT

EVENING AT 11:00, AND IN OTHER

WORDS SHE SAW THEM AT CERTAIN

PERIODS OF TIME, IN FLORIDA.

SO, WE -- THE FACT THAT THERE

MIGHT BE INCONSISTENCY WHAT TIME

THEY LEFT ALABAMA.

>> RIGHT.

BUT --

>> YOU ARE NOT CONTESTING THAT

TWILEGAR AND THOMAS WENT UP

TOGETHER TO ALABAMA, FOR A

LAWFUL PURPOSE, THAT AT SOME

POINT, THOMAS OBTAINED A LARGE

AMOUNT OF MONEY, THAT HE STILL

HAD THAT LARGE AMOUNT OF MONEY

WHEN HE -- THEY RETURNED

TOGETHER TO FLORIDA.

>> I'M CONTESTING THAT.

>> BUT THE FACTS -- YOU MAY --

BUT THERE ARE FACTS THAT SUPPORT

THAT.

>> THE FACTS SUPPORT THE FACT

THAT HE DID TAKE UP THE MONEY --

FIRST OF ALL, I WANT TO BACK UP

THIS.

THE STATE'S CASE IS INCONSISTENT

ON THE POINT OF FABINA -- HE

CALLED HER AND SAID, COULD YOU

PLEASE GET ME A MOTEL AT MOTEL

6, A ROOM AND SHE HAD THE LITTLE

KEY THING AND HE HAD TO GO TO

THE HOUSE AND GET IT FROM HER

AND SUPPOSEDLY, SHE GOES TO GIVE

HIM THE KEY AND FROM THE

DOORWAY, SHE SEES THE RENTAL

CAR.

AND SHE SEES WHAT SHE BELIEVES

IS MR. TWILEGAR SITTING IN THE

PASSENGER SEAT AND THAT IS THE

DAY BEFORE AND FABINA IS THE

ONLY PERSON, LAST PERSON TO SEE

MR. THOMAS ALIVE.

SHE DIDN'T SEE THE APPELLANT ON

THE 7TH.

>> WASN'T YOUR CLIENT, WASN'T

YOUR CLIENT OBSERVED AS DIRECT

EVIDENCE HE WAS OBSERVED DIGGING

A HOLE WHERE LATER ON

MR. TWILEGAR -- THE VICTIM IN

THE CASE WAS FOUND AND NOT ONLY

THAT, BUT THE MEDICAL EXAMINER

FOUND HE HAD INHALED SOIL WHICH

IS CONSISTENT WITH THE FACT THAT

HE MAY HAVE BEEN ALIVE AND

PROBABLY MOANING WHEN HE WAS

BURIED.

HOW IS THAT INCONSISTENT WITH --

>> OKAY.

JUST BECAUSE EVIDENCE IS

CONSISTENT WITH ONE THEORY --

>> OKAY.

>> IT CAN BE CONSISTENT WITH

LOTS OF OTHER THEORIES.

FIRST OF ALL, HE WASN'T SEEN

DIGGING A HOLE, HE WAS SEEN MAKE

A DIGGING MOTION.

AND, THE WITNESS SAID, I ONLY

OBSERVED HIM FOR A FEW SECONDS.

SECOND OF ALL, IN ORDER TO DIG

THAT HOLE, THE TENTS WOULD HAVE

HAD TO HAVE BEEN DOWN ALREADY.

THE HOLE WAS WHERE THE TENT WAS

AND THAT -- I URGE THE COURT TO

LOOK AT THE PHOTOGRAPH.

LOOK AT THE PHOTOGRAPHS OF THE

PROPERTY.

AND SEE HOW LITTLE CLEARED LAND

THERE IS RIGHT THERE.

THE TENT WOULD HAVE HAD TO HAVE

COME DOWN AND FIRST -- AND NOT

ONLY THAT IT WOULD HAVE BEEN AN

EXCAVATION, WHEN THE TEAM CAME

INTO RETRIEVE THE BODY, FIRST OF

ALL, THEY TREATED IT AS AN

ARCHEOLOGICAL DIG AND DUG AROUND

IT AND DIDN'T JUST DIG UP THE

BODY AND WHEN THEY DID THAT THEY

HAD A MONSTROUS TIME TRYING GET

THROUGH THIS THE -- THE PALMETTO

AND THE OAK TREE ROOTS AND

SPENCER... WAS THE WITNESS AND

IT WAS THE HEART MAN'S PROPERTY

AND BASICALLY HE WAS LIVING IN A

TENT WITHOUT TOILET FACILITIES

AND -- HE USED TO TAKE A POWER

LINE AND HOOK IT UP AND USED THE

WATER HOSE THERE AND DIDN'T

ALWAYS STAY THERE AND HE'D

DISAPPEAR AND STAY AT OTHER

PLACES AT TIMES, THERE ARE

WITNESSES THAT SAID HE'D

DISAPPEAR AT TIMES.

>> WASN'T THE TESTIMONY, I

BELIEVE OUR UNDERSTANDING IS

THAT THE TESTIMONY OF THE

GENTLEMEN WHO WAS DOING REPAIR

WORK ON THE HOME CAME TO THE

PROPERTY AND OBSERVED WITHOUT

MR. TWILEGAR SEEING HIM, THAT

THERE WAS DIGGING GOING ON, NOT

IN THE TENT, BUT ON THE OUTSIDE

OF THE TENT.

WAS OUR UNDERSTANDING.

>> RIGHT.

RIGHT.

>> IS THAT CORRECT.

>> THAT'S CORRECT.

>> AND THAT THIS PERSON WAS THEN

OFFERED MONEY TO LEAVE AND GO

AWAY FROM THAT PLACE, WHICH HE

DID AND NOW YOU ARE TELLING US

THAT THE RECORD CONCLUSIVELY

ESTABLISHES THAT THE THE BURIAL

SITE WAS ACTUALLY WITHOUT

CONTRADICTION, PRECISELY UNDER

WHERE THE TENT WOULD HAVE BEEN

AND COULD NOT HAVE BEEN SEEN BY

THE WITNESS, ARE YOU TELLING US

THAT THE RECORD CONCLUSIVELY

WITHOUT DISPUTE ESTABLISHES THAT

AS A MATTER OF ABSOLUTE FACT.

>> THAT THE BURIAL SITE --

>> WOULD BE UNDER THE TENT, NOT

OUTSIDE.

>> IT WOULD HAVE HAD TO HAVE

BEEN UNDER.

>> AND THAT IS --

>> THAT IS WHAT I BELIEVE IT

SHOWS, AND NOT ONLY THAT --

>> WOULD HAD TO HAVE BEEN YOUR

CONCLUSION, OR SOMEONE TESTIFIED

TO THAT?

>> IT WAS IN THE CLEARING AND

THERE WAS TESTIMONY TO SHOW IT

WAS IN THE CLEARING.

OF COURSE THE TENT WAS NO LONGER

THERE WHEN THEY FOUND THE BODY.

>> IT SEEMS TO ME THAT MAY --

YOU'VE GOT ISSUES THAT WERE THE

SUBJECT I'M SURE OF VIGOROUS

CROSS-EXAMINATION AND PERHAPS

EVEN SHOWING INCONSISTENCIES BUT

I THINK WE ARE LOOKING AT

WHETHER -- AND THE ISSUE THAT WE

ARE RAISING IS WHETHER THE

EVIDENCE IS INSUFFICIENT TO

SUPPORT A FINDING OF GUILTY OF

PREMEDITATED MURDER.

>> RIGHT.

>> IT SEEMS THAT THERE ARE SO

MANY CIRCUMSTANCES --

>> THERE ARE, BUT --

>> LET ME FINISH.

>> I'M SORRY, I'M SO SORRY.

>> THERE ARE SO MANY

CIRCUMSTANCES THAT POINT TO THIS

DEFENDANT AS THE MURDERER AND

HAVING MURDERED THIS PERSON --

VICTIM BECAUSE HE HAD A LARGE AT

OF MONEY, BECAUSE THEY HAD BEEN

TOGETHER, THIS NATURE OF THE WAY

HE WAS MURDERED, WAS THAT HE WAS

KNEELING -- EITHER KNEELING DOWN

OR ALREADY IN THE GRAVE, WHEN HE

WAS SHOT, AT A DOWNWARD ANGLE,

IN THAT THAT ALL SUPPORTS

PREMEDITATION OF MURDER.

AND SO, WE ARE TALKING ABOUT

WHETHER ONE PART IS NOT CREDIBLE

TET HE LEFT ALABAMA, WAS EARLIER

OR LATER, YOU KNOW, YOU ARE

BRINGING UP SOMETHING ABOUT THE

DIGGING, THAT IT MAY BE... BUT

ALL THAT YOU ARE DOING IS SAYING

THERE MAY BE HOLES IN THE

STATE'S CASE.

>> NO, NO, I'M NOT, WHAT I'M

SAYING IS, GO BACK TO THE

CIRCUMSTANTIAL EVIDENCE CASE,

AND SUSPICIOUS CIRCUMSTANCES ARE

NOT ENOUGH.

THAT EVIDENCE HAS TO BE

INCONSISTENT WITH THE THEORY OF

INNOCENCE AND HAS TO BE

INCONSISTENT.

>> WHAT IS THE THEORY OF

INNOCENCE.

>> SOMEBODY ELSE DID IT AND THAT

IS A --

>> SOMEBODY ELSE CAME TO THE

SAME PLACE WHERE MR. TWILEGAR

WAS, AND DUG UP -- DUG A HOLE

AND PUT MR. THOMAS IN IT.

>> THAT PROPERTY, THE PROPERTY

WAS NOT FENCED.

AND THAT PROPERTY --

>> DON'T WE ALSO HAVE ON TOP OF

THE FACT THAT HE'S THE MOST

LOGICAL PERSON, THAT DID DO THE

SHOOTING, HE IS WITHIN HOURS OF

WHEN THIS MURDER OCCURRED, HE

HAS LARGE AMOUNTS OF MONEY THAT

HE USES TO BUY CELL PHONES AND

-- AT 7-ELEVEN, $600 WORTH, HE'S

SPENDING THOUSANDS OF DOLLARS.

>> I UNDERSTAND THAT.

I UNDERSTAND THAT.

BUT --

>> YOU MENTIONED THE FACT THAT

THE VICTIM WAS SHOT, WITH A

12-GAUGE SHOTGUN AND YOUR CLIENT

SUPPOSEDLY HAD BEGUN.

>> THAT WAS UNSECURED IN THE

TENTED AND ANYBODY COULD HAVE

WALKED.

THERE ARE A LOT OF -- A LOT OF

THINGS.

TO ADD UP BUT LOOK AT THE SMOLKA

CASE.

SMOLKA.

BUT, LOOK AT THAT, SUSPICION IS

NOT ENOUGH.

IT HAS TO BE CONTINUES DICK

TERRY AND THE TENT WAS --

HAD A ZIPPER, IT WAS UNCURED AND

HE LEFT THE SHOTGUN THERE AND AS

FAR AS THE MONEY IS CONCERNED,

IT WAS IN THE WRONG

DENOMINATIONS AND MY CLIENT WAS

SPENDING $100 BILLS.

>> HIS THEORY IS SOMEONE CAME

AND STOLE HIS SHOTGUN AND --

>> NOBODY KNOWS WHAT SHOTGUN WAS

USED.

NOBODY KNOWS WHAT SHOTGUN WAS

USED, AND THERE AGAIN YOU HAVE

ALL OF THE CIRCUMSTANTIAL

EVIDENCE AND YOU WOULD HAVE TO

PYRAMID INFERENCES AND BELIEVE

THAT HIS SHOTGUN WAS USED.

YOU WOULD HAVE TO BELIEVE THAT

TWO OR THREE SECONDS DIGGING

MOTION WAS NOT HIM GOING TO THE

BATHROOM.

>> THAT IS NOT PYRAMIDING

INFERENCES, THOSE ARE SEPARATE

FACTS THAT START TO SHOW

CIRCUMSTANCES OF GUILT.

YOU DON'T USE THE PYRAMIDING OF

INFERENCES WHEN YOU LOOK AT,

YES, HE HAD MONEY, AFTER THE

MURDER, BUT, NOT BEFORE THE

MURDER.

THAT --

>> RIGHT BUT IT WASN'T PROVEN

THAT IT WAS HIS MONEY, MY CLIENT

TESTIFIED THAT HE WAS A DRUG

DEALER, HE WAS WANTED FUGITIVE

OF THE STATE OF MISSOURI.

HE WAS LIVING UNDER AN ASSUMED

NAME, VINNIE AND DEALING DRUGS.

HE LEFT -- KEPT A LOW PROFILE

AND DIDN'T SPEND HIS MONEY, WHEN

HE LEFT --

LEFT HE STARTED SPENDING MONEY

AND I MEAN, HE HAD -- HE

TESTIFIED HE HAD MONEY FROM DRUG

DEALING AND HIS MOTHER HAD

MONEY.

AND THERE WASN'T, SUPPOSEDLY

MR. THOMAS HAD $25,000, AND

THERE WAS NOTHING LIKE THAT

FOUND.

THE MOST THAT YOU CAN SAY, AND I

MEAN, THERE ARE EVIDENCE

PROBLEMS --

>> WELL, YOU SAY THERE WAS

NOTHING LIKE THAT FOUND.

BUT THIS WAS MUCH LATER AFTER

THE MURDER, THAT MR. TWILEGAR

WAS ACTUALLY ARRESTED AND SO,

WHAT WE HAVE IS A TRAIL OF

RECEIPTS, THAT INDICATE HE WAS

SPENDING A LOT OF MONEY AND WE

MAY NOT HAVE FOUND $25,000 BUT

THERE ARE LOTS OF RECEIPTS

SHOWING SHE SPENT THOUSANDS OF

DOLLARS AND I'M JUST... YOU

STILL HAVE NOT TOLD US BEYOND

SAYING SOMEBODY ELSE COULD HAVE

DONE THIS, WHAT THE REAL

HYPOTHESIS OF INNOCENCE IS IN

THIS EVIDENCE THAT IS NOT

SUPPORTED INTO.

>> A DEFENDANT DOES NOT HAVE TO

TELL YOU, I DIDN'T DO IT, JOE

SMITH DID IT.

THAT IS NOT HOW THAT WORKS.

THE DEFENDANT IS IN THE WORST

POSITION IN THE WORLD, IF HE IS

IN A POSITION, AND SAYS I DIDN'T

DO IT AND I DON'T KNOW WHO DID

IT.

I HAVE NO CLUE WHO DID IT.

>> BUT IF A DEFENDANT CAN SIMPLY

SAY SOMEONE ELSE MUST HAVE DON'T

AND THAT WOULD BE ENOUGH TO

PROVIDE A REASONABLE HYPOTHESIS

OF INNOCENCE --

>> IT IS.

>> WELL --

>> ONCE HE PROVIDES FACTS.

AND MY CLIENT DID TESTIFY.

MY CLIENT DID TESTIFY.

SO, YES, HE DID PROVIDE FACTS

AND NOT ONLY THAT, ONCE HIS

REASONABLE HYPOTHESIS OF

INNOCENCE IS "I DIDN'T DO IT"

THE STATE HAS THE BURDEN OF

PROOF ALWAYS, IT DOESN'T SHIFT

TO HIM, BECAUSE HE SAYS I DIDN'T

DO IT.

IT NEVER DOES.

>> I'M NOT SAYING THAT HE HAS TO

GO AND DEMONSTRATE THAT JOE BLOW

DID THIS.

WHAT WE ARE SAYING --

>> RIGHT.

>> -- IS THAT YOU TAKE EACH OF

THESE PIECES OF EVIDENCE, YOU

PUT THEM TOGETHER, THEY POINT TO

MR. TWILEGAR AS THE PERSON WHO

COMMITTED THE MURDER.

NOW, WHAT EVIDENCE IS THERE TO

--

>> THERE WAS A SUSPICION AND

I'LL SAY AGAIN THE STATE HAS A

BURDEN.

THERE WAS A SUSPICION, YES.

BUT THE STATE STILL HAS THE

BURDEN AND WITH REGARD TO THE

MONEY, THERE WAS ABSOLUTELY NO

EVIDENCE THAT MR. TWILEGAR KNEW

THAT MR. THOMAS HAD MONEY, WHY

WOULD MR. THOMAS TELL SOMEBODY

WHO WAS A HANDY MAN WORKING FOR

HIM THAT HE HAD TAKEN OUT

$25,000 AND WHY IS HE TAKING IT

OUT IN $20 BILLS, ANYWAYS AND MY

CLIENT IS -- THERE IS NO

EVIDENCE THAT MY CLIENT WENT TO

ANY BANK OR ANY KIND OF

COMMERCIAL OUTLET AND CHANGED

$20 BILLS INTO $100 BILLS

BECAUSE HE WAS SPENDING $100

BILLS AND THERE ARE A LOT OF

THINGS THAT YOU HAVE TO ASSUME,

TO COME UP WITH THE STATE'S

THEORY.

YOU HAVE TO ASSUME THAT THAT

PERSON WAS KILLED ON THAT

PROPERTY, AND -- THE MEDICAL

EXAMINER --

>> HOLD ON A MINUTE.

LET ME ASK YOU.

WAIT, YOU ARE NOW CONTESTING

THAT WHETHER MR. THOMAS WAS SHOT

IN THE GRAVE AND BURIED ALIVE.

>> SURE.

YES.

EVIDENCE IS NOT INCONSISTENT

WITH HIS BEING KILLED ELSEWHERE

AND THE CAR WAS DRAGGED OUT TO

THE MIDDLE OF LEE HIGH ACRES AND

WAS BURNED.

THERE WAS -- THE CAR, THE SEAT

WAS PUSHED BACK, AND THE FIRE

MARSHAL, WHOEVER DID THE

INVESTIGATION SAID THE SEAT WAS

PUSHED BACK IN A WAY TO

ACCUMULATE A LARGER MAN AND MY

CLIENT IS SOMEWHERE LIKE 5 FELT

4".

OKAY?

AND NOT ONLY THAT, THERE WERE A

RING IN THE CAR THAT WAS NOT

IDENTIFIED AND A GUN IN THE CAR

THAT WAS NOT IDENTIFIED AND WE

DON'T KNOW WHO THESE BELONGED TO

AND MY CLIENT WOULD HAVE HAD TO

HAVE SHOT MR. THOMAS, AND BURIED

HIM, AND GOT ALL THE WAY OUT TO

LEHI ACRES AND HOW WILL HE GET

BACK FROM THE MIDDLE OF NOWHERE?

HOW WILL HE GET BACK?

THE STATE'S THEORY DOESN'T SAY

THERE IS ANY ACCOMPLICE TO ANY

OF THIS, HOW WILL HE GET BACK TO

HIS NIECE'S HOUSE SOMETIME

BEFORE EVENING, SHE SAYS

SOMETIME BEFORE EVENING AND THE

STATE HAS THE BURDEN OF PROOF

AND WHY DIDN'T THIS STATE, WHEN

THE WITNESS SAYS, WHAT TIME

BEFORE EVENING, SAY, WHAT DO YOU

MEAN, 7:00, 8:00, 9:00,

MIDNIGHT, WHAT DO YOU MEAN BY

THAT, SOMETIME BEFORE EVENING,

TO A REASONABLE PERSON, MEANS

HE'S ASSUMING MORNING,

AFTERNOON, OR EVENING.

AND SOMETIME MORE TOWARDS

EVENING.

THAT IMPLIES SOMETIME BETWEEN

AFTERNOON AND EVENING AND THERE

WAS NOTHING TO SHOW MY CLIENT

WAS SWEATY OR DIRTY WHEN HE

ARRIVED THERE AND IF HE KILLED

SOMEBODY HE WASN'T COVERED WITH

BLOOD AND NO EVIDENCE THAT HE

HAD SHOWERED AND HOW DID HE GET

FROM LEHI ACRES ALL THE WAY OVER

THERE?

I MEAN, IF YOU LOOK AT THE

STATE'S THEORY OF THE CASE,

OKAY.

YOU SAY, WELL, DEFINITELY THE --

MR. THOMAS WAS KILLED ON THE

PROPERTY AND THE SCENE WAS

CONSISTENT WITH, IN THE GRAVE

AND WHY WASN'T IT TESTED.

>> YOU ARE DOING A VERY GOOD JOB

OF MAKING JURY ARGUMENTS, AND

MAYBE, THE DEFENSE LAWYER EITHER

MADE THESE ARGUMENTS OR DIDN'T

MAKE IT BUT I THINK YOU HAVE

SPENT -- I THINK THAT WE

UNDERSTAND THE ARGUMENT, ARE YOU

GOING TO RAISE -- ADDRESS ANY

OTHER POINTS IN THE TIME YOU

HAVE REMAINING.

>> WELL, I WILL TELL YOU, I

THINK EVERYTHING -- THE BRIEFS

GIVEN 100 PAGES I WAS ABLE TO

FIT JUST ABOUT EVERYTHING I

WANTED TO FIT INTO IT.

AND THE REPLY BRIEF, I THINK

HITS EVERYTHING.

BUT, I WOULD REALLY LIKE YOU TO

LOOK AT SOME OF THIS THE

EVIDENTIARY ISSUES, LIKE THE

RECEIPTS AND THINGS, BECAUSE I

JUST -- IN FACT LAST NIGHT I

TOTALED UP THE RECEIPTS FROM

WHICH THERE WAS NO FOUNDATION

WHATSOEVER, IN OTHER WORDS, NO

STORE CLERK OR NOBODY THAT WAS

BROUGHT IN, AND IT WAS SOMEWHERE

AROUND $1345 OR SO, AND --

>> 7-ELEVEN.

>> THE 7-ELEVEN.

>> AND DIDN'T THE GIRLFRIEND

REALLY VERIFY THAT HE WENT --

AND A -- I AGREE THERE IS NIGHT

FOUNDATION ON THAT.

WASN'T SHE WITH HIM.

>> THE NIECE?

SHE HAD NO IDEA --

>> WHEN HE BOUGHT SEVERAL CELL

PHONES SHE KNEW WHAT HE BOUGHT.

>> RIGHT BUT HAD NO CLUE HOW

MUCH THEY WERE OR --

>> WHAT DID SHE TESTIFY TO, THAT

HE ACTUALLY --

>> BOUGHT CELL PHONES FOR HER,

HIS MOTHER, AND HIMSELF I THINK.

AT THIS 7-ELEVEN AND PICKED UP

DOG FOOD AND SOMETHING LIKE

THAT.

>> AND WHAT IS THIS OTHER

RECEIPT THERE IS NO FOUNDATION

FOR, SAM'S CLUBS.

>> SAM'S CLUB, 400-SOMETHING

DOLLARS AND A BUNCH FROM -- THEY

USED ALL OF THESE RECEIPTS TO

MAKE A TIMELINE AND WHAT

HAPPENED WITH THE RECEIPTS WAS,

THERE WAS AN OBJECTION TO THE

FOUNDATION, AT THE TIME THE

DEPUTY, THE MAN WHO FOUND THE

DEPUTY -- THE DEPUTY WHO TOOK

THE STUFF OFF OF THE CAMPING

THING AND THERE WAS AN OBJECTION

AS TO LACK OF FOUNDATION AT THAT

TIME AND THE JUDGE LET THE

DEPUTY READ ALL OF THESE INTO

EVIDENCE, AND THE CAT WAS

ALREADY OUT OF THE BAG AND THE

DAMAGE DONE AND SO AS FAR AS,

YOU KNOW, AT THAT POINT, THERE

WAS A PROPER OBJECTION TO THE

LACK OF FOUNDATION.

AND, YOU KNOW, $1345, THAT IS A

LOT OF MONEY.

AND THEY DID USE THESE RECEIPTS

TO MAKE A TIMELINE.

AND TO SHOW WHERE MY CLIENT WAS,

WHERE AND WHEN, AND, YOU KNOW,

IT -- FINDINGS -- FINDING

CAMPING EQUIPMENT DOESN'T SHOW

WHO BOUGHT IT OR WHATEVER AND

DOESN'T SHOW -- I MEAN, THERE

ARE A LOT OF THINGS AND I WANT

TO STRESS THAT I KNOW THAT THIS

IS TROUBLESOME.

I KNOW THAT IT IS.

BUT, WITH A STANDARD OF REVIEW,

SUSPICION IS NOT ENOUGH.

IT REALLY ISN'T.

AND IF YOU ARE GOING TO SAY THAT

YOU CAN TAKE ONE TANGENTIALLY

FACT OR ONE OTHER FACT AND JUST

TAKE THE WHOLE CLIENT'S CASE AND

JUST -- DEFENDANT'S CASE AND

SAY, YOU CAN DISBELIEVE HIM ON

EVERY, SINGLE POINT, BECAUSE,

THERE IS A -- THE TERRA NOVA

CASE, 2ND DISTRICT THAT SAYS

THAT THAT IS NOT TRUE AND

DOESN'T ALL FALL.

AND ANYWAY...

>> YOU ARE INTO YOUR REBUTTAL IF

YOU WANT TO SAVE SOME TIME.

>> YES, I WOULD LIKE TO.

>> MAY IT PLEASE THE COURT,

CANDACE SEBELLA REPRESENTING THE

STATE OF FLORIDA AND FIRST I

WOULD LIKE TO POINT THE COURT TO

THE PHOTOGRAPHS IN THE CASE AND

IF YOU TAKE ONE LOOK AT THE HOLE

THE VICTIM WAS FOUND IN YOU WILL

SEE THERE WAS SUBSTANTIAL

EVIDENCE OF PREMEDITATION,

BECAUSE AS THE TESTIMONY WAS,

THEY HAD TO DIG DOWN AT LEAST

THREE FEET BEFORE THEY GOT TO

THE BODY.

>> WOULD YOU CLARIFY WHETHER IT

WAS ADJACENT OR UNDERNEATH THE

TENT.

>> MR. HARTMAN TESTIFIED HE SAW

HIM DIGGING RIGHT BEHIND THE

TENT AND THE EVIDENCE WAS THAT

THERE WAS -- THE TENTS TOOK UP

MOST OF THE CLEARING BUT THAT

THERE WAS SOME SPACE THERE.

FURTHERMORE, THE EVIDENCE --

>> WHAT WOULD BE THE THEORY, HE

STARTED DIGGING BEHIND THE TENT,

AND THEN AT SOME POINT AFTER HE

SAW HIM HE TOOK THE TENT DOWN

AND CONTINUED THE DIGGING, IS

THAT THE STATE'S THEORY.

>> THAT IS ENTIRELY POSSIBLE

BUT, YOUR HONOR --

>> ALL --

>> THE TESTIMONY WAS THERE WAS A

CLEARING IN FRONT OF THE TEN AND

WHERE IT WAS, IN REGARDS TO

WHERE THE TENT WAS, I DO NOT

KNOW.

WHAT I DO KNOW IS SPENCER

HARTMAN SAID, I SAW HIM DIGGING

IN THE CLEAR SPACES BEHIND THE

TENT.

CLEARLY THERE WAS A SPACE THERE.

AND WHETHER HE HAD TO

DISASSEMBLE THE TENT BECAUSE

THIS NEXT DAY, REMEMBER, SPENCER

HARTMAN COMES BACK THE TENT HAS

BEEN DISASSEMBLED AND PUT THEN

-- DISASSEMBLED AND PUT IN THE

INCINERATOR AND BURNED.

FURTHERMORE, I WANT TO MENTION

THE RECEIPTS, SHE MAKES A POINT

OF THAT, AND THE RESIDENTS COME

TON PLAY AND THE -- IN ISSUE 3

AND ISSUE 7.

>> I MUST SAY WHEN WE LOOK THE

AT THESE CASES AND THE STATE AND

DEATH PENALTY CASES, THESE ARE

GOING TO GO ON FOREVER, I'M SORT

OF SURPRISED THAT THE STATE TO

TAKE RISK OF INTRODUCING THESE

RECEIPTS THAT ARE VERY

INDICATIVE NOT ONLY OF THE

AMOUNT BUT THE TIMELINE, WHEN

THROUGH A DEPUTY THAT COULD NOT

ESTABLISH THE FOUNDATION.

SO, PLEASE EXPLAIN THAT AND

PLAIN WHAT YOU DID TO CURE THAT

ERROR.

>> I WOULD HAVE LIKED TO HAVE

HAD A WITNESS ALSO BUT THE FACT

IS, YOU KNOW, IT IS JUST --

>> I APPRECIATE YOUR CANDOR ON

IT, BUT, WE HAVE THESE CASES,

THEY ARE SERIOUS CASES SUCH AS,

IT IS TERRIBLE FOR EVERYBODY AND

VICTIMS AND WE WANT TO MAKE SURE

THAT THIS IS -- WORDS GET

THROUGH, THAT EVERY I HAS TO BE

DOTTED IN THESE CASES.

>> IN THE PROSECUTOR'S DEFENSE,

YOU WERE -- YOUR HONOR, WHEN ALL

OF THE EVIDENCE IN TENNESSEE WAS

FOUND AND WAS INTRODUCED, HIS

TENTS AND EVERYTHING, WERE

INTRODUCED INTO EVIDENCE, THE

COURT FOUND SINCE THESE RECEIPTS

WERE IN HIS POSSESSION, THEY DID

NOT NEED TO BE AUTHENTICATED.

NEVERTHELESS -- AUTHENTICATED

AND THE STATE BROUGHT IN

WITNESSES TO AUTHENTICATE, A

NUMBER OF WITNESSES AND I WANT

TO MAKE A POINTED AND ESPECIALLY

SHE SAID WE USE IT AS A TIMELINE

AND THE ONLY RECEIPT THAT WAS

RELEVANT OR ESSENTIAL TO A

TIMELINE IS THE 7-ELEVEN

WAL-MART RECEIPT AND THAT WAS

TESTIFIED TO BY JENNIFER

MORRISON, WHO WAS HIS NIECE THAT

HE CAME TO HER HOUSE THAT NIGHT

AND THEY WENT SHOPPING AND

BOUGHT THE CELL PHONES AND

SUPPLIES, AND THEY CAME BACK AND

SHE WENT TO BED AND WHEN SHE

WOKE UP THE NEXT MORNING HE WAS

GONE AND HE ALSO TESTIFIED THAT

HE WENT TO JENNIFER MORRISON'S

AND THEY WENT SHOPPING AROUND

MIDNIGHT.

BOUGHT THESE SUPPLIES AND BOUGHT

THESE PHONES, AND THAT HE THEN

WENT BACK TO THE PROPERTY, AND

HE LEFT SOMETIME EARLY THAT

MORNING.

FOR TENNESSEE.

AND EVERYTHING THAT IS IN

7-ELEVEN RECEIVED WAS

SUBSTANTIALLY TESTIFIED TO BY

JENNIFER MORRISON AND THE

DEFENDANTS.

>> YOU ARE SAYING IT IS HARMLESS

ERROR.

>> IF IT WAS ERROR IT IS

HARMLESS, ABSOLUTELY.

>> AND... TESTIFYING ABOUT ANY

OF THE OTHER RECEIPTS.

>> ABSOLUTELY, YOUR HONOR.

>> SOMEONE FROM WAL-MART.

>> THERE WERE TWO PEOPLE FROM

WAL-MART, WHO TESTIFIED FOR

RECEIPTS AND ONE OF THE CLERKS

FROM TENNESSEE, SHE REMEMBERED

HIM.

SHE TESTIFIED ABOUT THEIR

CONVERSATION, SHE IDENTIFIED

HIM, SHE TESTIFIED AS TO WHAT HE

BOUGHT AND SHE SAID HE GAVE HER

THREE CRISP BRAND NEW $100

BILLS.

>> WERE THESE RECEIPTS THAT WERE

IN THE POSSESSION DEFENDANT?

ISN'T THE RECORD [INAUDIBLE].

>> THEY WERE IN HIS BRIEFCASE,

FOUND AT THE CAMP SITE IN

TENNESSEE.

>> I UNDERSTAND THAT.

BUT WERE THEY BUSINESS RECORDS

KEPT BY WAL-MART AND THE OTHER

BUSINESSES THAT...

>> THEY WERE NOT THEIR BUSINESS

RECORDS.

THEY WERE RECEIPTS THEY GAVE TO

THE CUSTOMER, SO, BASICALLY,

THEY ARE -- THE DEFENDANT'S

BUSINESS RECORDS.

>> IF THEY ARE NOT THEIR

BUSINESS RECORDS I'M HAVING

TROUBLE SEEING HOW IT CAME IN

UNDER THE BUSINESS RECORDS

EXCEPTION.

BECAUSE, YOU KNOW, SOMEONE

DOESN'T AUTHENTICATE SOMEBODY

ELSE'S RECORDS.

THERE MIGHT BE A WAY TO DO IT

WHERE YOU MATCH UP, A RECORD

THAT WAL-MART HAD, WITH

SOMETHING THAT HE HAD BUT THAT

IS NOT WHAT WAS DONE.

>> THE WAL-MART MANAGER WAS ABLE

TO COME IN AND IDENTIFY IT AS,

THIS IS THE WAL-MART RECEIPT,

THIS IS WHAT THIS CODE MEANS AND

THAT CODE MEANS AND THESE

THEY'RE RECEIPTS WE ISSUE AND

WHEN THERE WAS A QUESTION OF

WHETHER THEY WERE FALSIFIED

THERE WAS NO CHALLENGE AS TO

THAT.

>> MY QUESTION IS, IS IF THEY

ARE NOT AT LEAST ARGUABLY UNDER

THE STATUTE, DOES THE -- THE

BUSINESS RECORDS HAVE TO BE

AUTHENTICATED BY THE PERSON WHO

KEEPS THE BUSINESS RECORDS AND

I'M JUST WONDERING WHETHER IT

FALLS INTO THAT CATEGORY.

>> CERTAINLY, WAL-MART.

>> LET ME SAY CANDIDLY IT IS

EVIDENCE THAT SHOULD COME IN, IF

IT IS PRESENTED PROPERLY BUT I'M

HAVING TROUBLE SEEING HOW IT WAS

IN THE BUSINESS RECORDS

EXCEPTION.

>> THE RULE SIMPLY REQUIRES TO

BE A BUSINESS RECORD YOU HAVE TO

HAVE SOMEBODY COME IN AND

TESTIFY THESE ARE THE TYPE OF

RECORDS THAT WE NORMALLY KEEP

AND THIS IS HOW WE KEEP THEM AND

CLEARLY WAL-MART WILL HAVE A

COPY OF THIS RECEIPT THEY WOULD

NORMALLY KEEP THEM AND HE WAS

ABLE TO IDENTIFY IT AS SAME.

AND SIMILARLY, WITH THE NAPA

PERSON, WHICH THEY ARE NOT

CHALLENGING THE INTRODUCTION OF

THAT, AND ALSO --

I'M SORRY, I FORGET, SEVERAL

OTHER RECEIPTS THEY ARE NOT

CHALLENGING.

>> BUT, YOU KNOW, IT STRIKES ME

-- AND I HAVE... THE

SIGNIFICANCE IS THAT THEY WERE

FOUND IN HIS POSSESSION.

AND THEN THE QUESTION OF THE

RELEVANCE IS, AS OPPOSED TO IF

THEY ARE, YOU KNOW, JUST SOME

PAPERS, IS THAT MAYBE THEY DON'T

COME IN HIS BUSINESS RECORDS BUT

THE WAL-MART EMPLOYEES ARE ABLE

TO SHOW THESE ARE IN FACT WITH

THE RECEIPTS FROM THEIR STORES,

AT THE TIME AND I HAVE TO LOOK

BACK AT THE RECORD BUT IT WAS

SORT OF TO TIE UP THESE

DOCUMENTS FOUND IN HIS

POSSESSION AND IF WE WRITE

SOMETHING WE NEED TO BE SURE WE

GIVE GUIDANCE FOR THE FUTURE.

>> EXACTLY.

THEY WERE INTRODUCED CLEARLY TO

SHOW THAT HE HAD MONEY HE DID

NOT HAVE BEFORE AND BROUGHT IN

THE PEOPLE FROM WAL-MART, TO

VERIFY WHAT WERE THE RECEIPTS

AND -- WHAT THE RECEIVE SAID AND

THE CODES ON IT IN ORDER TO

AUTHENTICATE THEM BUT REALLY THE

BOTTOM LINE IS WHAT THEY WERE

DOING -- WHY THEY WERE DONE IS

TO PROVE THAT HE HAD MONEY HE

DIDN'T HAVE BEFORE AND THE FACT

THAT HE HAD PLENTY OF TESTIMONY

OUTSIDE OF THESE RECEIPTS, THAT

HE HAD ITEMS THAT HE DID NOT

POSSESS WHEN HE WAS IN FORT

MYERS AND WHEN HE WAS IN FORT

MYERS, THE TESTIMONY IS, HE

LIVED A MEAGER EXISTENCE, THAT

HE HAD THIS TENT, THAT HIS

MOTHER WOULD BRING HIM

CIGARETTES IN HIS DAILY BUSINESS

AND HE MADE HIS LIVING LIVING AS

A HANDY MAN WHICH HE BASICALLY

DID IN EXCHANGE FOR PLACES TO

LIVE, AND SUSTENANCE BUT

SUDDENLY, WHEN HE GETS TO

TENNESSEE, AND WHEN -- WE HAVE

TESTIMONY FROM THE CAMP HOSE AND

ALSO FROM DEPUTY HOT HE HAD

GENERATORS, REFRIGERATORS,

SCANNERS, THREE TENTS, AND HAS A

CAR NOW ALL OF A SUDDEN AND

SUDDENLY THERE ARE ITEMS IN HIS

POSSESSION HE CLEARLY DID NOT

HAVE WEEKS EARLIER AT THE TIME

OF THE MURDER.

>> COULD YOU EXPLAIN THE

$25,000, WHAT -- WHAT DID THE

EVIDENCE SHOW AS TO WHY

MR. THOMAS WITHDREW $25,000, IN

$20 BILLS?

AND AGAIN, I DON'T KNOW -- I

MEAN, THE -- I DON'T KNOW IF IT

WAS RAISED OFFICIALLY THE AT

TRIAL, WHETHER THESE WERE

ACTUALLY GOING TO GET INVOLVED

IN A DRUG DEAL, VERSUS SOMETHING

LEGITIMATE BUT THAT SEEMS LIKE

THAT IS AN ODD THING, TO BE

DOING, AND TO BE DOING WITH

SOMEBODY THAT YOU REALLY DON'T

KNOW VERY WELL.

THAT IS, HAVING WITHDRAWN THAT

KIND OF MONEY AND IN $20 BILLS.

>> YOUR HONOR, WHAT THE VICTIM

TOLD THIS TELLER WAS THAT HE WAS

PLANNING ON GOING TO AN AUCTION.

AND PURCHASING PROPERTY AT AN

AUCTION.

WHEN HE GOT TO FORT MYERS --

>> AND THE TELLER TESTIFIED HE

ASKED FOR IT IN $20.

>> AND THE TELLER TESTIFIED HE

ASKED FOR IT IN $20 BILLS AND

WHEN HE GOT TO FORT MYERS HE

TOLD VALERIE... HE SAID THIS IS

THE LAST DAY HE'S SEEN ALIVE --

7:00, 7:30 AND HE'S GOING TO BUY

A TRUCK FOR THE DEFENDANT TO

TAKE TO ALABAMA TO USE IN

ALABAMA WHILE HE'S WORKING ON

THE PROPERTY.

>> AND THE -- THE MONEY IN

ALABAMA, IS THERE ANY EVIDENCE

HE WENT TO AN AUCTION UP THERE.

>> THERE IS NO EVIDENCE AS TO

THAT.

>> AND COMES BACK WITH THE MONEY

--

>> HE COMES BACK AND VALERIE

TESTIFIED THAT SHE SAW HIS

WALLET AND HE HAD A LARGER THAN

NORMAL SUM OF MONEY IN THE

WALLET AND DID NOT DO THE

DENOMINATIONS.

>> AND HE TOLD HER HE WAS GOING

TO USE TO IT BUY YOU A TRUCK FOR

THE DEFENDANT.

>> HE SAID HE WAS GOING TO GET

THE DEFENDANT AND THEY WERE

GOING TO GO TOGETHER TO BUY A

TRUCK FOR THE DEFENDANT TO USE

IN ALABAMA.

TO WORK ON THE PROPERTY.

>> I GUESS THAT WAS -- SOUNDS

LIKE THERE IS SOMETHING OFF.

>> THE TESTIMONY IS THE VICTIM

BOUGHT AND SOLD A LOT OF

VEHICLES, AND THERE WAS

SOMETHING THAT HE DID, HE

COLLECTED VEHICLES.

AND HE BOUGHT AND SOLD THEM.

SO, THAT WAS CONSISTENT WITH THE

TESTIMONY AS TO WHAT HE DID.

AND ALSO, THE TESTIMONY IS THAT

HE ALSO OWNED A LOT OF PROPERTY,

SO, THAT HIS STATEMENT TO THE

TELLER THAT HE WAS GOING TO

PURCHASE PROPERTY, IS ALSO

CONSISTENT WITH HIS NORMAL

ACTIONS AND BEYOND THAT ANYTHING

IS IS SPECULATION AND THERE IS

NO EVIDENCE THEY HAD ANY OTHER

PLANS.

>> THIS RECORD DEMONSTRATES

MR. TWILEGAR WAS WORKING FOR

HIM, IN FORT MYERS AND WHEN HE

DECIDES HE NEEDS TO DO SOME WORK

ON SOME PROPERTY IN ALABAMA, HE

TAKES MR. TWILEGAR WITH HIM, TO

WORK ON THE PROPERTY.

>> YES, HE DOES.

>> IN ALABAMA.

>> AND YES.

AND THE TESTIMONY IS THEY CAME

BACK TOGETHER ON THE 6TH IN THE

DODGE NEON HE RENTED IN ALABAMA.

>> AND WHEN IS THE LAST TIME

THEY ARE SEEN TOGETHER IN

FLORIDA.

>> ON THE 6TH.

>> WHO TESTIFIED TO THAT.

>> VALERIE BISNETT.

>> THOMAS'S GIRLFRIEND.

>> YES.

>> AND, WHAT TIME OF DAY WAS

THAT.

>> ABOUT 11:00 P.M. AT NIGHT.

ON THE 6TH.

>> I THOUGHT, HE'S AT THAT

POINT, THAT IS WHEN HE -- AND

THOMAS AT THAT POINT, IS

OBTAINING A MOTEL ROOM KEY.

>> HE HAS HIM RENT A MOTEL ROOM

AND CAME BY TO PICK UP THE KEY

AND IS WITH THE DEFENDANT AT

THAT TIME.

>> LET ME ASK YOU ABOUT A QUICK

-- ONE OF THE ISSUES HERE WAS

THE SEARCH OF THE ITEMS THAT

WERE TAKEN FROM THE CAMP SITE IN

TENNESSEE.

>> RIGHT.

>> NOW, THE POLICE OFFICER CAME

TO THE CAMP SITE, AND TALKED TO

THE PEOPLE RUNNING THE CAMP

SITE?

I'M TRYING TO GET TO HOW THE

POLICE AND THIS COUPLE GOT TO

THE PLACE WHERE MR. TWILEGAR'S

--

>> WHAT HAPPENED, THE SEQUENCE

OF EVENTS IS THAT MR. TWILEGAR

WAS AT THE CAMP SITE AND OWNED A

WHITED PIT BULL AND HAD THE

PITTED BULL TIED UP AT THE CAMP

SITE AND HAD SIGNS, BEWARE OF

THE SOMETHING, AND THERE WERE

SEVERAL OTHER CAMPERS AROUND WHO

WERE NERVOUS ABOUT THIS DOG, AND

SO THE DETECTIVES -- THE DEPUTY

CAME AND TALKED TO HIM ABOUT THE

DOG.

AND HE ASKED HIM FOR HIS NAME,

AND HE RAN THAT THROUGH NCIC AND

DIDN'T COME BACK WITH ANYTHING

AND ALSO BECAUSE HE WAS

CONCERNED, HE ALSO ASKED IF HE

HAD A PICTURE I.D. AND HE SAID I

DON'T HAVE ONE ON ME BUT I CAN

GET YOU WITHIN AND AT THAT

POINT, THE DEFENDANT WAS USING

THIS NAME BRYAN WAGNER.

SO, HE TELLS -- MAKES A PHONE

CALL AND TELLS HIM I CAN HAVE IT

HERE IN 30 MINUTES, AND THE

DEPUTY SAID OKAY.

I'LL COME BACK IN 30 MINUTES AND

GET IT AND WHEN HE CAME BACK,

THE DEFENDANT WAS SEEN, AND HIS

MOTHER CAME AND PICKED HIM UP

AND THE DOG AND THEY LEFT AND

WHEN HE CAME BACK HE WAS GONE

AND THAT IS WHEN HE WALKED

AROUND AND SAW THE REFRIGERATOR

AND THE GENERATOR AND THE

SCANNERS, AND ONE OF THIS TENTS

WAS JUST A NETTING TENT AND YOU

COULD SEE INTO, AND THEN HE

LEFT.

AND SUBSEQUENTLY, WHEN WE READS

SEE -- REEDS SEE ANOTHER CAR

THEY DIDN'T RECOGNIZE COME INTO

THE CAMP SITE AND GO TO THE

DEFENDANT'S CAMP SITE AND DRIVE

BACK TO CHECK ON IT AND WHEN

THEY FLASH THEIR LIGHTS ON IT,

IT IS LOADED UP WITH STUFF, AND

MR. TWILEGAR'S CATCH SITE IS

RAVAGED AND STUFF IS THROWN IN

THE STREET AND BEDDING STREWN

AROUND THE CAMP SITE.

>> AND THERE WAS NO INDICATION

IS MR. TWILEGAR.

>> NO INDICATION IT IS HIM AND

--

>> WHAT I'M TRYING TO GET TO IS

WHY THIS POLICE WERE THERE AT

THAT POINT.

SO, THE REEDS THEN CALLED THE

POLICE AND SAID, THERE IS A --

SOME BURGLARY POSSIBLY --

>> EXACTLY, WHAT HAPPENED IS THE

CAR TAKES OFF AND THEY -- THEY

GET THE TAG NUMBER AND CALL THE

POLICE, AND THE DEPUTY COMES

OUT, AND HE TESTIFIES WHEN I GOT

THERE, THERE WAS STUFF STREWN IN

THE MAIN ROAD AND THE CATCH SITE

WAS RAVAGED AND OBVIOUSLY HAD

BEEN BURGLARIZED AND IT WAS OPEN

AND POURING DOWN RAIN, AND SO WE

HAD THE DISCUSSION ABOUT WHAT TO

DO AND DIDN'T KNOW IF IT WAS A

HOSTAGE SITUATION, AND IF IT WAS

A THEFT, EXACTLY WHAT HAD

HAPPENED.

AND SO IN ORDER TO MAINTAIN THE

STATUS QUO, THE REEDS SAID WE

HAVE NO PLACE TO STORE THIS

STUFF AND HE SAID, I'LL JUST

TAKE IT INTO CUSTODY AND WHEN HE

COMES BACK, TELL HIM I HAVE HIS

STUFF AND HE'S MORE THAN WELCOME

TO IT.

AND TOOK IT AND HELD IT FOR A

FEW DAYS AND WHEN THE DEFENDANT

NEVER CAME BACK TO CLAIM IT HE

CHECKED THROUGH THIS BRIEFCASE

TO SEE IF HE COULD FIND

IDENTIFICATIONS BECAUSE HE

DIDN'T HAVE ANY ADDRESS FROM THE

BRYAN WAGNER NAME, AND TO SEE IF

WE COULD LOCATE THE DEFENDANT.

AND HE WAS NOT ABLE TO LOCATE

THE DEFENDANT.

>> COULD YOU ADDRESS COUNSEL'S

COMMENTS WHEN SHE WAS TALK ABOUT

THAT IT COULDN'T HAVE BEEN HIM

BECAUSE THERE WAS A VEHICLE THAT

WENT OUT TO THE MIDDLE OF TO

WHERE AND HAD NO WAY TO GET

BACK.

>> I HEARD HER MAKE THAT COMMENT

AND I DIDN'T UNDERSTAND THE

COMMENT.

IF SHE'S SAYING, HE HAD A WAY TO

GET TO THE MIRAMAR HOUSE, THE

DEFENDANT DROPPED HIM OFF AND

THAT IS WHERE HE LIVED AND AFTER

HE KILLED THE VICTIM HE HAD THE

VICTIM'S AUTOMOBILE.

SO, I WASN'T REALLY CLEAR WHAT

POINT SHE WAS --

>> I THINK SHE WAS SAYING THE

VEHICLE WAS TAKEN AND DESTROYED.

AND IT WAS AT A LOCATION THAT

WAS DISTANT FROM WHERE THE

DEFENDANT WAS AND COULDN'T GET

BACK TO IT.

THAT IS THE ARGUMENT.

>> THERE WAS NO EVIDENCE

PRESENTED AS TO WHO TOOK THE

VEHICLE OUT THERE OR WHO

ASSISTED IN DOING IT OR HOW THAT

WAS DONE.

>> I THINK HER ARGUMENT IS,

THERE IS NO EVIDENCE THAT ANYONE

ELSE IS INVOLVED AND SOMEHOW IS

SUPPOSEDLY TRACED BACK TO

WHOEVER DID THE KILLING, THAT

WAS THE ARGUMENT.

SO...

>> I THINK, CONTRARY, THERE IS A

LOT OF SUSPICION A LOT OF PEOPLE

WERE INVOLVED BUT THERE WAS NO

EVIDENCE, ABSOLUTELY.

>> AND THE RECORDS...

[INAUDIBLE].

>> YOUR HONOR, I KNOW IT DOES

AND SEEMS TO KNEE LIKE THERE WAS

13 MILES MINE IN -- IN MY MEMORY

BUT I'M TOTALLY GUESSING AT THAT

POINT.

>> TO MAKE SURE I --

MR. THOMAS'S VEHICLE WAS FOUND

OUT THERE.

>> IT WAS THIS DODGE NEON THAT

HE HAD RENTED THAT WAS FOUND AND

HAD BEEN BURNT.

>> OKAY.

NOTHING WAS NEVER SORT OF -- BUT

YOU SAID THAT THE -- THE

DEFENDANT DIDN'T HAVE A VEHICLE.

>> THE DEFENDANT DIDN'T HAVE A

VEHICLE UNTIL AFTER HE KILLED

THE --

>> AND THEN WHAT VEHICLE DID HE

HAVE.

>> HE HAD THE DODGE NEON.

>> SO, I THINK AGAIN, AND MAYBE

THIS IS NOT A -- ISN'T A POINT

WE CAN GET TO.

THE IDEA WOULD BE, THE THEORY

WOULD BE THAT HE MAYBE WENT WITH

THE DEFENDANT, OUT TO HIS -- OUT

TO THE DEFENDANT'S PROPERTY IN

THE NEON.

>> NO, YOUR HONOR.

NO.

FROM THE POINT WHERE, WHAT

HAPPENS, TO HAVE THE CAR END UP

AT THE LEHI EXIT POINT.

>> AFTER THE -- THE THEORY IS,

AFTER THE DEFENDANT IS KILLED

AND BURIED IN THIS VERY LARGE,

DEEP HOLE, THAT THE DEFENDANT

THEN TOOK THE DODGE NEON AND

WHETHER HE THEN WENT TO DINNER

FOR -- MORE SONS AND GOT

JENNIFER MORRISON OR HIS MOTHER

OR SOMEBODY ELSE TO FOLLOW HIM

OUT TO DUMP THE CAR, WE DON'T

KNOW.

THERE IS NO EVIDENCE.

>> AND THE 7-ELEVEN, HE'S WITH

HIS NIECE, HE'S IN THE DODGE

NEON.

>> NO.

THERE IS NO EVIDENCE OF THAT.

>> BUT HE'S --

>> THERE IS NO EVIDENCE OF HIM

BEING IN THE DODGE NEON AFTER

THE MURDER.

>> WHAT VEHICLE IS IN WHEN HE

WENT TO THE 7-ELEVEN.

>> JENNIFER MORRISON'S.

>> SO, AT SOME POINT, THEN,

AFTER THE 7-ELEVEN PURCHASE, HE

THEN SUPPOSEDLY TAKES THE

VEHICLE OUT TO BE BURNED.

>> OR IT COULD HAVE BEEN BEFORE

THE 7-ELEVEN PURCHASE.

I DON'T KNOW, THERE IS SIMPLY NO

EVIDENCE OF IT.

THE EVIDENCE IS THAT HE IS AT

THE SITE, HE DIGS THE HOLE, AND

THE NEXT DAY, HIS STUFF IS GONE

AND THE EVIDENCE IS THAT THE

VICTIM IS SEEN 7:00 TO 7:30 AND

NEVER SEEN AGAIN AND HIS LAST

CONVERSATION ON HIS CELL PHONE

FOUND ON HIS BODY, WAS THAT --

AT 8:00 P.M., AND AFTER THIS --

>> THERE IS NOTHING WHERE THE

DEFENDANT IS EVERY FOUND IN

POSSESSION OF ANY OF

MR. THOMAS'S POSSESSIONS.

>> I DO NOT BELIEVE SO, YOUR

HONOR, OTHER THAN MONEY.

>> AND THERE IS NO PHYSICAL

EVIDENCE AS FAR AS, AGAIN, DNA

OR ANYTHING THAT LINKS THE

DEFENDANT WITH THE MURDER?

>> IS THAT CORRECT.

>> WELL, OBVIOUSLY THE DEFENDANT

IS LINKED TO THE MURDER, NO

QUESTION THAT THEY WERE

TOGETHER.

>> NO BLOOD FOUND.

>> NO, THERE IS NOT AND I WANT

TO MAKE A POINT, SHE MAKES THE

CON ESSENTIAL HE DIDN'T TEST THE

--

>> THERE WAS AN ARGUMENT HE

COULD HAVE BEEN LYING FACED DOWN

ANYWHERE AND SUCKED IN THE SAND

AND THE ME TESTIFIED THE WAY THE

SAND WAS INHALED IT COULD NOT

HAVE BEEN DONE FACE DOWN, IT WAS

MORE OF AND INHALING AND HAD TO

BE A CONTINUOUS BREATHING KIND

OF THING AND MORE LIKELY,

BECAUSE HIS BODY WAS FOUND AND

HE WAS IN A SEMI-FETAL POSITION

AND IT WAS WHEN HE WAS IN THAT

POSITION THAN OTHER POINT I WANT

TO GET TO WAS THE WAIVER AND I

WANT TO POINT OUT TWO THINGS,

FIRST OF ALL, THERE WERE A

NUMBER -- I SHOULD MAKE IT THREE

THINGS, THERE WERE A NUMBER OF

COLLOQUIES THE JUDGE WENT

THROUGH WITH THE DEFENDANT AND

THE STATE PRESENTED THE MISSOURI

PSI WHICH HAS PSYCHOLOGICAL

REPORTS AND IQ SCORES IN IT, A

BACKGROUND OF HIS FAMILY AND

THIS JUDGE USED ALL OF THAT IN

HIS SENTENCING ORDER AND HE

FOUND NUMEROUS ITEMS IN

MITIGATION BASED ON THAT.

>> I WANTED TO ASK YOU, I'M GLAD

YOU BROUGHT THAT UP, THERE IS NO

QUESTION IN MY MIND THAT THE

WAIVER WAS -- CERTAINLY WAS DONE

IN AN APPROPRIATE WAY.

WHAT THE DEFENDANT BRINGS UP,

THAT WHAT IS DIFFERENT IN THIS

CASE IS THAT THE -- THERE WAS

ALSO A WAIVER OF INVESTIGATION

INTO MITIGATION.

WHAT CASES DO WE HAVE TALK ABOUT

WHAT THE DEFENDANT IS ABLE TO DO

AND HOW THAT COLLOQUY IS KNOWING

AN INTELLIGENT FOR THERE TO BE A

WAIVER OF EVEN THE ABILITY TO GO

INTO INVESTIGATION, BECAUSE,

NORMALLY, WE SAY, WELL, IF THERE

IS A REASONABLE INVESTIGATION

THEN YOU HAVE COON TO SAY WHAT

THE INVESTIGATION SHOWED, ARE

THE -- DO WE HAVE CASES --

>> YES, DO YOU, YOUR HONOR, THE

COURSE IN BOYD AND MAURA GO

THROUGH WHEN THE DEFENDANT SAYS

HE WANT TO PRECLUDE AN

INVESTIGATION AND IN THIS

PARTICULAR CASE COUNSEL

TESTIFIED THAT HE -- TOLD THE

COURT THAT HE HAD GIVEN -- SAW

THE DEFENDANT AT LEAST TWICE A

WEEK, AND THEY ALWAYS TALKED

ABOUT THE MITIGATION AND HE GAVE

HIM THE AVA -- ABA GUIDELINES

AND ARTICLES ON MITIGATION AND

FURTHERMORE THE STATE WHEN THEY

PUT IN THE PSI PUT IN EVIDENCE

HIS PRIOR COUNSEL WHICH HE FIRED

BECAUSE HE CONTINUED TO DO THIS,

HAD GOTTEN THIS INFORMATION

PREVIOUSLY AND HE HAD STOPPED

HIM FROM DOING THIS.

SO, THERE ARE PLENTY OF EVIDENCE

IN THE RECORD, THAT COUNSEL

TALKED TO HIM ABOUT MITIGATION,

AND THAT HE KNEW EXACTLY WHAT

WAS GOING ON.

AND, ALSO, DURING THE SPENCER

HEARING, THE DEFENDANT NOT ONLY

PRECLUDED HIS COUNSEL FROM

PRESENTING MITIGATION, HE ALSO

PRECLUDED COUNSEL FROM ARGUING

AGAINST THE AGGRAVATION AND THE

OTHER POINT I WANTED TO MAKE,

WHILE HE SAID HE WAS NOT GOING

TO PRESENT MITIGATION HE DID

INDEED PRESENTED TWO ITEMS IN

MITIGATION, HE PUT IN THE WILL,

OF THE VICTIM, AND ALSO, HIS

ARREST, PRIOR ARREST REPORT OF

THE VICTIM.

SO, WHILE HE DIDN'T PUT IN THE

EVIDENCE TO MITIGATE WHAT HE

CALLED HIS PRIVATE LIFE, THAT IT

WAS HIS RIGHT TO PRIVACY, AND IT

WAS HIS PRIVATE LIFE AND HE HAD

THE RIGHT TO KEEP PEOPLE FROM

GOING INTO IT, HE DID PUT HIM ON

EVIDENCE ABOUT THE

CHARACTERISTICS.

>> AND ALSO --

IS THERE AN AFFIDAVIT...

[INAUDIBLE].

>> I DON'T KNOW.

>> ANY IF YOUR QUESTIONS?

THANK YOU.

>> MS. DODGE.

>> YES.

FIRST OF ALL, WHEN MR. TWILEGAR

AS AT THE CAMP SITE IN TEN NAS

THERE WAS EVIDENCE THAT HE WAS

-- TENNESSEE, HE WAS DEALING

METHEMPHETAMINE AND HE WAS

CAUGHT WITH A METH LAB WHEN HE

WAS ARREST AND HE TESTIFIED THAT

HE WAS DEALING METHEMPHETAMINE

AND HE WAS COOKING IT UP AND HE

WAS SELLING SUBSTANTIAL AMOUNTS

OF IT.

AND FOR SUBSTANTIAL MONEY AND HE

WASN'T AT THE CAMP SITE OR THE

ITEMS WEREN'T SEEN AT THE CAMP

SITE UNTIL LATE AUGUST, 22ND,

23RD, SOMEWHERE IN THERE AND

JENNIFER MORRISON, AND SHE HAD

NO IDEA WHAT KIND OF MONEY WAS

SPENT FOR THOSE CELL PHONES AND

SHE WOULD NOT HAVE BEEN ABLE TO

TESTIFY TO THAT, WITHOUT THOSE

RECEIPTS.

AND THE RECEIPTS, THEY WERE KIND

OF A HOLE IN THE THIS LAW WITH

REGARD TO STORE RECEIPTS AND

YOUR POINT WAS EXCELLENT.

THEY DID NOT TAKE AND PULL UP

THE WAL-MART -- WHATEVER COPIES,

CARBON COPIES OR WHATEVER, AND

MATCH THOSE UP.

AND I'M GOING TO TELL YOU, I

MISSED THAT.

THEY --

>> LET ME ASK YOU THAT.

WAS THAT PRECISE ISSUE EVER

ACTUALLY PRESENTED TO THE TRIAL

COURT?

I MEAN, WAS IT EVER -- WAS THE

ARGUMENT THAT THESE REALLY

AREN'T BUSINESS RECORDS, SUBJECT

TO THE BUSINESS RECORDS

EXCEPTION FROM THE HEARSAY RULE.

>> WHAT HAPPENED IS THEY WERE

BLIND SIDED BY THE FACT THAT

DEPUTY HOLT WAS GOING --

>> NO, I UNDERSTAND --

>> READ IT INTO THE RECORD.

>> MY QUESTION IS.

>> NO.

NO.

THE ANSWER IS NO.

SORRY.

>> NOT REALLY --

>> THE ANSWER IS NO.

>> THAT WAS NOT REALLY

PRESERVED.

>> NO AND I DIDN'T TRY THE CASE

AND CAN'T MAKE ANY -- THE

FOUNDATION WAS -- LACK OF

FOUNDATION WAS.

>> IT'S NOT AS IF THERE WERE,

YOU KNOW, SOMEHOW THERE IS A --

SOMETHING IN A CELL PHONE OR

SOMETHING IN THE PERSON'S

POSSESSION, AND THEN THEY TRY TO

SHOW, HERE'S A RECEIPT FROM WHEN

HE MUST HAVE PURCHASED THE CELL

PHONE.

THE RECEIPTS ARE FOUND IN HIS

POSSESSION.

TO ME, THE FACT THAT THEY A

FOUND IN HIS POSSESSION THEN

ONCE THEY A LINKED UP, THESE ARE

IN FACT OUR RECEIPTS, I'M HAVING

TROUBLE KNOWING -- GETS IN UNDER

BUSINESS RECORDS, BUT, ISN'T IT

SIGNIFICANT THAT THEY A FOUND IN

HIS POSSESSION?

AS FAR AS THEN, BEING LINKED UP.

THESE AREN'T COUNTERFEIT

RECEIPTS OR ANYTHING, THESE ARE

RECEIPTS AND THESE ARE THE TYPES

OF RECEIPTS THAT ARE JOHN RATED,

WHEN THERE ARE PURCHASES.

>> THE LAW, I WOULD SAY, OKAY,

FIRST OF ALL THE LAW SAYS THESE

THINGS ARE HEARSAY AND

CERTAINLY, READING THE CONTENTS

OF THESE, IS HERE SAY, BUT THE

ACTUAL EXISTENCE OF THEM, WOULD

NOT BE HERE SAY AND ONCE YOU GET

INTO CONTENTS OF THEM YOU ARE

GETTING INTO HEARSAY AND I THINK

THE LAW IS CLEAR, EVEN THOUGH IT

IS VERY, VERY SPARSE, THAT THE

CONTENTS OF THESE RECEIPTS ARE

HEARSAY.

AND ALSO, NONE OF THE WITNESSES

ACTUALLY WENT FOR THAT TECHNICAL

HURDLE THAT SAID, THESE ARE KEPT

IN THE NORMAL COURSE OF BUSINESS

AND I KNOW IT SOUNDS PICKY, BUT

THAT IS WHAT THE LAW SAYS, AND

THEY NEVER DID THAT.

AND, NOT ONLY THAT, EXCEPT FOR

THE ONE WAL-MART RECEIPT, WHERE

THE LADY SAID, I REMEMBER THE

MAN WHO BOUGHT IT, NO ONE COULD

LINK THIS AM OF MONEY TO -- THE

CLIENTS, THEY KNOW HE HAD

RECEIPTS AND THE STUFF AND WE

DON'T KNOW, WHO ACTUALLY BOUGHT

THEM AND IT IS NOT -- NOT AS IF

YOU MADE A PAPER TRAIL BY

HANDING THE CREDIT CARD WHICH

WOULD HAVE BEEN EASIER, AND YOU

KNOW WHO ACTUALLY PURCHASED IT

OR WHO PURPORTED TO PURCHASE IT.

THESE WERE CASH TRANSACTIONS.

>> THAT IS WHY I SAY, WHERE THE

FACT THAT THEY ARE IN HIS

POSSESSION, IS SIGNIFICANT, AS

TO HIM HAVING PURCHASED IT AS

OPPOSED TO IF RANDOM RECEIPTS

WERE FOUND, AND THEY JUST PICKED

THEM UP OFF THE GROUND.

>> IT IS BUT THE CONTENT IS

STILL HEARSAY.

THE CONTENTS ARE STILL HEARSAY.

>> ISN'T IT A COPY OF WHAT THE

STORE KEEPS ITSELF.

>> BUT THEY NEVER MATCHED THEM

UP, NEVER MATCHED THEM UP AND

THEY SAID THIS IS -- LOOKS LIKE

WHAT WE DO.

I RECOGNIZE THE STORE, I

RECOGNIZE THE STORE NUMBER, AND

YOU KNOW, IT LOOKS LIKE WHAT WE

KEEP IN THE COURSE OF BUSINESS

AND THEY DIDN'T SAY COURSE OF

BUSINESS AND WEREN'T ASKED THAT

BUT DIDN'T SAY THESE MATCH UP

WITH OUR RECORDS, WE WENT BACK

AND PULLED THOSE FOR THAT --

>> ARE YOU SAYING NOW IT COULD

HAVE BEEN A BUSINESS RECORD,

ADMISSION, BUT PROPER FOUNDATION

WAS NOT LAID.

>> MAYBE, IF THEY WENT BACK AND

PULLED THE -- YOU KNOW --

>> THERE HAS TO BE A WAY TO

ALLOW FOR THEM TO COME INTO

EVIDENCE.

YOU KNOW, YOU SAY -- IF IT'S NOT

BUSINESS RECORDS WHAT IS IT.

>> I IMAGINE THIS CASE WILL

STAND FOR THAT PROPOSITION.

>> UNDER THE FEDERAL RULES, IT

IS -- RESIDUAL HEARSAY.

>> THANK YOU.

THAT THIS IS FEDERAL RULE, YOU

DON'T HAVE TO WORRY ABOUT THAT.

BUT AT LEAST IT.

>> AT LEAST IT GIVES ME A

HANDLE, RIGHT?

THERE IS NO EVIDENCE AT THE CAMP

SITE -- THE MOTHER PICKED UP

MR. TWILEGAR AND THE MAROON CAR

DROVE INTO THE CATCHING AREA AND

CAME OUT AND THE CAMP HOST

THOUGHT SHE SAW TWO DOGS ON THE

WAY OUT AND THEN AGAIN,

MRS. TWILEGAR WENT TO FAMILIAR

WITH TWO DOGS, SO, TWO DOGS, ONE

DOG, AND THERE WAS NO

MR. TWILEGAR IN THAT CAR THAT

LEFT.

THE STATE'S THEORY WAS

SPECIFICALLY MR. TWILEGAR WAS

THE ONE WHO DISPOSED OF THE CAR

AND YOU CAN LOOK AT THE

ARGUMENTS AND EVERYTHING AND IT

WAS THEIR THEORY THAT HE DID,

AND INHALING THE SAND, I COVERED

THAT IN THE -- LOOK AT THE

CORONER'S THING, SAYING HE COULD

HAVE INHALED IT, SHE SAID

CONSISTENT WITH FALLING FORWARD,

AND INHALING IT ON AN UNEVEN

SURFACE.

SO, AND AS FAR AS BEING BURIED

HE WOULD HAVE DIED IN MINUTES

AND IT WOULD HAVE BEEN A FAST

BURIAL TO GET DIRT IN HIM AND

HAVE HIM STILL INHALING IT AND

IT IS JUST -- WHETHER OR NOT

THINGS ARE INCONSISTENT OR

WHETHER OR NOT THEY PRECLUDE --

>> I THINK JUSTICE --

>> THE EVIDENCE, DID IT NOT SHOW

TWILEGAR AND HIS MOTHER LEFT

FLORIDA IN THE DEAD OF THE

NIGHT, WITHOUT COMING -- PEOPLE

THEY WERE LIVING WITH AND NEVER

CALLED AND TOLD THEM THEY WERE

LEAVING AND BEFORE THEY WOKE UP

IN THE MORNING, AND THE -- IN

THE MOTHER'S CAR.

>> YES.

THEY DID.

>> DON'T YOU THINK THAT IS --

>> THESE PEOPLE DID NOT LIVE

THIS KIND OF LIFESTYLE THAT I --

I CAN IDENTIFY WITH AND DID NOT

DO THINGS THE WAY THAT -- YOU

KNOW, BUT YES, THEY DID DO THAT.

THEY LEFT.

>> AND WHAT KIND OF CAR DID THE

MOTHER HAVE.

>> A MAROON SOMETHING OR OTHER.

>> CALLED IT THE MAROON CAR.

>> SAME CAR SHE HAD IN

TENNESSEE.

>> YES, SAME CAR SHE HAD IN

TENNESSEE.

>> YOU HAVE USED UP MORE THAN

YOUR TIME AND WE THANK YOU.

BOTH, FOR YOUR ARGUMENT

PRESENTED HERE TODAY.

>> THANK YOU.

>> NEXT CASE ON THE COURT'S

AGENDA IS BRADLEY VERSUS STATE,

AND BRADLEY VERSUS McNEIL.