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.

Dale Johnson v. State of Florida

SC07-368

>> THE NEXT CASE ON OUR
KALANBER THIS MORNING IS
JOHNSON v. STATE OF FLORIDA.
>> MAY IT PLEASE THE COURT.
DAVID McPHERRIN ON BEHALF OF
THE PETITIONER DALE JOHNSON.
THE ISSUE BEFORE THE COURT
THIS MORNING IS WHETHER
MR. JOHNSON EXECUTED A VALID
WAIVER OF HIS RIGHT TO HAVE
A JURY DETERMINE IF HE HAD
THE THREE PRIOR CONVICTIONS
NECESSARY FOR THE OFFENSE OF
FELONY DUI.
AND IT IS THE POSITION --
PETITIONER'S CONTENTION THAT
HE DID NOT VALIDLY WAIVE
THAT JURY TRIAL IN -- RIGHT
IN THAT CASE.
>> DO YOU AGREE THAT IF WE
AGREE WITH YOUR PREMISE,
YOUR BASIC PRINCIPLE THAT
THERE WAS NOT A VALID, WAL
UD-- VALID WAIVER BUT UNDER
THESE CIRCUMSTANCES THAT IS
A SUBJECT OF THE HARMLESS
ERROR ANALYSIS?
>> YES.
AND THAT'S CERTAINLY THE
ACHILLE'S HEEL OF MY CASE.
>> WELL, WE APPRECIATE YOUR
CANDOR AND THAT'S WHAT WE
NEED TO DISCUSS.
>> AND SINCE WE'RE
DISCUSSING IT, JUST A COUPLE
THOUGHTS ON THAT.
CERTAINLY YOU HAVE MENTIONED
THAT PREVIOUSLY IN HAR BAL,
THE CASE WHERE YOU ADOPTED
THE BIFURCATED JURY PROCESS
FOR FELONY DUI.
YOU RELIED ON A SUPREME
COURT CASE THERE IN THE
MATTER WHICH DEALT WITH THE
ELEMENT OF MATERIALALITY AND
YOU SAID THESE THINGS ARE
SUBJECT TO HARMLESS ERROR
ANALYSIS, AND THAT'S
CONSISTENT WITH WHAT THE
UNITED STATES SUPREME COURT
HELD IN THE MATTER.
>> AND EVEN SINCE THEN IN
GULINDAS, WE SUBJECTED AN
APRENDY ERROR, WHICH IS
REALLY THE SAME THING, TWO
HARMLESS AERROR ANALYSIS.
>> GULENDS DID APPLY
HARMLESS ANALYSIS IN
APRENDY.
I WOULD NOT SUGGEST APREPDY
APPLIES IN THIS CASE.
>> I AM JUST SAYING
ACCORDING TO CURRENT U.S.
SUPREME COURT LAW ANYTHING
THAT ENHANCE ADSENTENCE IS
-- ENHANCES A SENT SENSE
WHAT THEY CALL THE
SUBSTANTIAL EQUIVALENT OF
THE ELEMENTS OF A CRIME AND
NEED TO BE DETERMINED BY A
JURY SO THERE'S REALLY VERY
LITTLE DIFFERENCE ANYMORE
BETWEEN THIS KIND OF CASE
AND THAT KIND OF CASE.
>> IN TERMS OF HARMLESS
ERROR, YOU'RE RIGHT.
GULENDAS AND WASHINGTON.
BUT JUST A COMTHOUGHTS ON
THAT.
ONE IS JUSTICE SCALIA'S
DISSENT IN THE MATTER, AND I
REALIZE IT'S A DISSENT.
BUT HE DOES MENTION IN THERE
THAT AT WHAT POINT DOES THE
HARMLESS ERROR TEST STOP?
>> SINCE NETTER THE SUPREME
COURT HAS DECIDED
WASHINGTON.
>> YES.
BUT THERE ARE DIFFERENT -- I
KNOW THAT THESE ENHANCEMENT
ELEMENTS ARE NOW BEING
TREATED THE SAME AS COURT
ELEMENTS IN TERMS OF WHAT
HAS TO BE SUBMITTED TO THE
JURY.
BUT THERE IS STILL A LITTLE
BIT OF DIFFERENCE BETWEEN
THEM AND I THINK IT SHOULD
DETERMINE WHETHER HARMLESS
ERROR SHOULD APPLY.
JUSTICE SCALIA AGREED BUT IN
THERE YOU HAD AN ELEMENT
THAT WAS BEING USED TO
ENHANCE A SENTENCE AND IF
YOU DIDN'T PROVE THAT
ELEMENT, YOU STILL HAD THE
COMMISSION OF A CRIME.
THERE WERE THESE CORE
ELEMENTS THAT WERE STILL
PROVING AND HE AGREED THAT
WHEN IT'S A SENTENCING
ENHANCEMENT ELEMENT, THAT
HARMLESS ERROR APPLY!!IED
THERE.
THERE'S A DIFFERENT BETWEEN
A CORE ELEMENT AND THAT IS
WITHOUT THESE ELEMENTS,
THESE CORE ELEMENTS, THERE
IS NO COMMISSION OF A CRIME.
>> BUT AS YOU ADMIT EVEN IN
NETTER, THAT A MAJORITY OF
THE COURT SAID.
>> YES, AND THAT'S WHAT
I'MVER SAYING.
>> I INTERRUPTED YOU.
WHAT DID SCALIA SAY IN HIS
DISSENT.
>> LOOK WE HAVE A CRIME WITH
TWO ELEMENTS AND ONE OF THEM
SHOULD BE SUBMITTED TO A
JURY BUT ISN'T.
IS THAT HARMLESS?
OR IS IT HARMLESS WHETHER
IT'S FIVE ELEMENTS SO EVEN
20% IS NOT SUBMITTED TO THE
JURY.
AT WHAT POINT IF NO ELEMENTS
IS BEING SUBMITTED TO THE
JURY IS STRUCTURAL DEFECT --
>> HOW DO YOU FACTOR IN
THERE WHETHER IT'S A
DISPUTED ELEMENT?
LET'S SAY IT WASN'T THE
NUMBER OF PRIOR FELONY
CONVICTIONS BUT IT WAS A
MATTER OF THE PERSON'S
AEGIS?
-- AGE.
LIKE IN SOME OF THE SEX
OFFENSES.
>> SPEAK TO THAT.
>> MY POINT IS THAT THIS IS
A POINT THAT HASN'T BEEN
ADOPTED BUT MY POINT IS THAT
THERE ARE CERTAIN CORE
ELEMENTS THAT HAVE TO BE
SUBMITTED TO A JURY AND
THOSE CORE ELEMENTS AREN'T
SUBMITTED TO THE JURY AND
THAT THERE ISN'T AN WAIVER
THAT YOU CAN'T HAVE HARMLESS
ANALYSIS BECAUSE AT SOME
POINT YOU ARE GOING TO HAVE
TO GET IN A POSITION OF
SIGHING HOW MANY ELEMENTS
CAN GET INTO HARMLESS ERROR
AND HOW MANY ELEMENTS IS TOO
MANY NOT TO BE HARMLESS
ERROR.
>> ANDINATE -- AND ISN'T THE
ANSWER TO THAT DISPUTED
VERSUS NOT DISPUTED.
>> WELL, AND THAT MAY BE BUT
THAT'S NOT WHAT IT'S TALKED
ABOUT.
IFTS JUST TALKED ABOUT THIS
AS JUST ONE ELEMENT.
AND WHEN IT'S ONLY ONE
ELEMENT --
>> BUT WHEN WE TALK ABOUT
HARMLESS ERROR, WAS THE
ERROR HARMLESS WHETHER IT'S
ONE ELEMENT OR IF I EVER
ELEMENTS, IF THE DEFENDANT
DOESN'T DISPUTE THEM, SEEMS
TO ME THAT'S HARMLESS ERROR.
WHETHER IT'S ONE ELEMENT OR
FIVE ELEMENTS, IF THE
DEFENDANT DID DISPUTE IT, IF
THERE WAS CONTRARY EVIDENCE
PRESENTED AT TRIAL, AND A
FACT FINDER WOULD HAVE TO
DETERMINE THE CREDIBILITY OF
THE WITNESSES IT SEEMS TO ME
THAT IS HARMFUL ERROR BUZZ
YOU HAVE THAT'S EXACTLY WHY
JURIES ARE THERE.
>> THAT ASSUMES HARMLESS
ERROR CAN APPLY TO APPLY A
FAILURE TO SUBMIT.
>> AS YOU SAID WE HAVE
NETTER AND THAT'S WHAT WE
ARE DEALING WITH HERE.
>> RIGHT, AND THAT'S --
>> COULD YOU EXPLAIN AS IN
THE TRIAL, THE TRIAL, THAT
WAS BEFORE THE JURY, THE
JUDGE, WATT OZ, WHAT WAS,
WHAT -- HOW WAS THE EVIDENCE
OFFERED?
WHAT HAPPENED IN THAT TRIAL?
>> THERE WAS A DRIVING
RECORD OF MR. JOHNSON'S THAT
WAS INTRODUCED INTO
EVIDENCE.
>> WAS THAT OBJECTED TO?
>> IT WAS NOT OBJECTED TO.
>> WERE THERE OPENING
STATEMENTS AND CLOSING
ARGUMENTS?
IN PHASE ONE THERE WAS.
>> YEAH, I KNOW BUT THE ONE
THAT YOU ARE SAYING IS
DEFECTIVE HERE.
>> NO.
>> IT WASN'T OPENING
STATEMENTS?
>> NO.
IN THE SECOND PHASE WHERE WE
WERE DETERMINING THE PRIOR
DUIs, THERE WERE NO OPENING
ARGUMENTS IN THAT AND NO
CLOSING ARGUMENTS.
>> WHAT WAS --
>> IT WAS NO OBJECTION.
>> SO WHAT YOU'RE REALLY
AGAINST, WE DON'T KNOW WITH
THE ELEMENTS AND -- WE DON'T
GO WITH THE ELEMENTS AND WE
GO WITH DISPUTED VERSUS
UNDISPUTED HARMLESS ERROR IN
OTHER WORDS WHAT YOU ARE
SAYING IS WHAT YOU WANT THIS
COURT TO DO WOULD BE TO
REVERSE THIS CONVICTION AND
HAVE IT GO BACK SO IT CAN
CONVENE, PICK A JURY, AND
HAVE WHAT WOULD HAPPEN IN
THE JURY TRIAL?
>> WHAT I REALLY THINK I'M
ASKING THIS COURT TO DO IS
THAT RECOGNIZING HARMLESS
ERROR ANALYSIS GOING TO
APPLY IN THIS CASE AND
RECOGNIZING THAT SOMETIMES
YOU CAN'T GET EVERYTHING YOU
WANT.
SOMETIMES YOU CAN ONLY GET
HALF A LOAF.
>> SO MEN EXPLAIN WHAT YOU
WANT -- WHAT WOULD YOU SAY
WHAT THIS OPINION WOULD SAY
-- SHOULD SAY.
>> FIRST THIS OPINION SHOULD
DISAGREE WITH THE COURT'S
ANALYSIS THAT THERE IS A --
>> THAT WOULD BE THE
IMPORTANT --
>> IN TERMS OF HARMLESS
ERROR, THE FACT THAT WE DID
NOT CONTEST THE ACCURACY OF
THE DRIVING RECORD,
CERTAINLY DOESN'T TAKE AWAY
FROM THE FACT THAT THE STATE
STILL HAS TO AFFIRMATIVELY
PROVE EACH AND EVERY ELEMENT
OF THE CRIME.
NOW WE HAVE A STATUTE IN
FLORIDA NOW THAT SAYS IF YOU
HAVE A DRIVING RECORD AND IT
REFLECTS PRIOR DUI --
>> BUT YOU HAVEN'T GIVEN ME
-- CAN'T YOU SAY WHAT THE
OPINION WOULD SAY NOT ON THE
TEST.
>> NOT HARMLESS?
>> IT'S NOT HARMLESS?
>> BECAUSE?
>> IT'S NOT HARMLESS BECAUSE,
AND --
>> IN OTHER WORDS WHAT YOU
ARE SAYING IS IF YOU WANT US
TO HOLD IF IT'S ELLE AN
ELEMENT OF THE CRIME IT CAN
NEVER BE HARMLESS NOT TO
SUBMIT IT TO A JURY.
>> WELL, BUT THEN I WOULD BE
GETTING INTO STRUCTURAL
DEFECT, AND I KNOW --
>> THAT'S WHAT WE WOULD HAVE
TO HOLD IN ORDER TO ADOPT
YOUR POSITION.
>> IN THIS CASE IT'S NOT
HARMLESS AND HERE IS WHY
IT'S NOT HARMLESS.
YOUR GULINDEZ TEST, AND I
THINK, I DON'T KNOW EXACTLY
WHAT YOU WROTE COULD ANY
RATIONAL JUROR HAVE COME TO
A DIFFERENT CONCLUSION?
THAN WHAT WAS REACHED HERE
BY THE JUDGE?
AND WE HAVE IN FLORIDA NOW A
STATTUTE THAT SAYS IF YOU
HAVE A DRIVING RECORD AND IT
SHOWS THAT THERE ARE DUI
PRIOR CONVICTION, THAT'S
PRESUMPTIVE PROOF THAT THEY
EXIST.
IT'S REBUTTABLE BUT IT'S
PRESUMPTIVE PROOF.
NOW THAT STATUTE WAS ADOPTED
ABOUT A MONTH BEFORE
MR. JOHNSON'S CRIME WAS
ALLEGED TO HAVE BEEN
COMMITTED.
BEFORE THAT THERE THESE
DRIVING RECORDS ARE NOT
SUFFICIENT TO ESTABLISH
PRIOR DUI CONVICTIONS.
>> BUT THOSE PRIOR STATUTES
DON'T APPLY TO THIS CASE.
>> I AGREE.
I AGREE.
WE NOW HAVE THIS STATUTE AND
THERE WAS NO ARGUMENT BELOW
THAT THIS WAS
UNCONSTITUTIONAL
PRESUMPTION.
THAT WASN'T RAISED AT ALL.
SO WE DO DEAL WITH THAT
STATUTE.
>> SO IT SEEMS TO ME WHERE
YOU ARE DEALING WITH A
PUBLIC RECORD, HERE, THAT IS
NOW PRESUMPTIVELY RELIABLE,
YOU HAVE THE WORST CASE
SCENARIO FOR YOUR POSITION,
REALLY.
>> WELL, I THINK THE POINT
THAT I AM TRYING TO MAKE AND
MAYBE I'M STRETCHING, BUT --
>> YES, AND BUT THIS, YOU'RE
UP HERE, YOU'RE GOING TO
WRITE IT WAS AN INVALID
WAIVER AND THAT IT'S NOT
HARMLESS.
>> AND IT'S NOT HARMLESS
BECAUSE PRIOR COURSEVISE
HELD LOOK THESE THINGS AREANT
SUFFICIENTLY RELIABLE.
COULDN'T A JUROR DESPITE
WHAT THE LEGISLATURE HAS NOW
DONE WITH THIS STATUTE
BELIEVE THE SAME THING?
AND SAY LOOK, THIS IS A
COMPUTER PRINTOUT.
WE GET BILLS IN THE MAIL
EVERY DAY.
>> WOULDN'T YOU HAVE TO
BELOW AT LEAST HAVE
CONTESTED IT?
THAT'S WHY I GO BACK TO WHAT
I THINK JUSTICE CANTERO WAS
SAYING IS THAT THE BEST
THING DISPUTED OR UNDISPUTED
ELEMENT.
THERE'S NO DISPUTE.
IF THE LAWYER BELOW HAD
ARGUED THAT IT WAS NOT
RELIABLE, THEN YOU'D HAVE AT
LEAST SOME BASIS TO SAY THAT
IT WAS DISPUTED BECAUSE IT
WASN'T RELIABLE.
BUT NOT HERE.
>> AND I CAN'T DISAGREE WITH
YOU ON THAT AND THAT'S WHY I
SAY I'M JUST SAYING IT
THEORETICALLY A JUROR COULD
SIT THERE AND SAY I'VE HAD
EXPERIENCE WITH COMPUTER
PRINTOUTS BEFORE AND I KNOW
THEM AT TIMES TO BE
INACCURATE.
IN FACT, PLY MOST RECENT
BILL WASN'T RIGHT.
>> YOU ARE ARGUE AGJURY
PARDON KIND OF THING YOU
KNOW THAT A JURY FEELS SORRY
FOR THIS PERSON AND WHICH IS
NOT SOMETHING REALLY THAT WE
-- I MEAN, I UNDERSTAND AS A
LAWYER YOU MAY GO INTO A
COURTROOM AND TRY TO MAKE
ARGUMENTS THAT WILL LEAD
THEM THAT WAY BUT AS A COURT,
WE'VE NEVER WRITTEN THAT,
THAT IS AN APPROPRIATE
APPROACH TO THESE CASES.
>> I DON'T KNOW IF I AM
SAYING JURY PARDON SO MUCH
AS COULD WE FIND A RATIONAL
JUROR FIND WHAT A TRIRL
COURT FOUND COULD A JUROR
SAY I DON'T TRUST COMPUTER
PRINTOUT WITH SOME JUDGMENT
OF CONVICTION OR SOME COURT
DOCUMENT.
>> BUT THAT'S NOT THIS CASE.
WE ARE DEALING WITH THIS
CASE WHICH IS IF YOU ARE THE
LAWYER ARGUED WITH THE JUDGE
IT IS NOT RELIABLE THE STATE
HASN'T MET ITS BURDEN OF
PROOF BUT INSTEAD IT
STIPULATED TO AND THERE'S
NO, THERE WAS NO ARGUMENT
MADE.
SO HOW UNDER THIS FACT WAS
UNDISPUTED AND THERE WAS NO,
THERE WAS NO ATACK ON THE
LIABILITY?
SO EVEN IF WE -- IN THIS
ISSUE, THAT'S NOT EVEN
PRESENT HERE BECAUSE THERE'S
NO ATTEMPT TO ARGUE IT
WASN'T RILIABLE AND.
>> I CAN ONCE AGAIN SAY I
DON'T DISAGREE WITH YOU.
YOU ASKED ME FOR AN
ARGUMENT.
I'M MAKING AN ARGUMENT.
>> WE APPRECIATE THAT.
>> BUT HOW DISS THIS FIT
WITH A SITUATION FOR
INSTANCE WHERE THE STATE
DOES NOT YOUR CASE, YOU KNOW,
WITH THE PRIOR CONVICTIONS
BUT THAT FOR SOME REASON
THERE HAS NOT BEEN A
SUFFICIENT WAIVER IN A
MURDER CASE?
OF THE JURY TRIAL ON GUILT.
>> OKAY.
>> AND THAT THE STATE
PRESWRENS AN UNREBUTTED CASE,
-- PRESENTS AN UNREBUTTED
CASE THAT IS OF THE GUILT OF
THE DEFENDANT.
THAT'S ALL THAT'S PRESENTED.
BUT THEN IT'S DISCOVERED
THERE WAS AN INSUFFICIENT
WAIVER OF THE RIGHT TO A
JURY TRIAL.
YOU KNOW, THE TRIAL JUDGE
CONCLUDES WITH THE
UNREBUTTED STATE'S CASE THAT
HE'S GUILTY OF FIRST-DEGREE
MURDER.
WOULD HARMLESS ERROR ALLOW
US THEN TO AFFIRM THE
CONVICTION WITH THE BENCH
TRIAL?
IN THAT FIRST-DEGREE MURDER
CASE DESPITE THE FACT THAT
THERE WAS AN INVALID WAIVER?
>> I THINK THAT GETS US BACK
TO THE QUESTION OF HOW DO WE
QUANTIFY, HOW MANY ELEMENTS
WE CAN HAVE AND STILL HAVE,
AND STILL ALLOW HARMLESS
ERROR TO BE APPLIED AS
OPPOSED TO SAY THIS CAN'T BE
SUBJECT TO HARMLESS ERROR
ANALYSIS ANYMORE?
IF ONE ELEMENT, WHY NOT ALL
THE ELEMENTS?
THAT'S WHAT WE'RE GETTING
BACK TO ON THIS.
>> WHY NOT ALL THE ELEMENTS
IF ALL THE ELEMENTS ARE
DISPUTED.
>> BECAUSE WE HAVE A 6th
AMENDMENT TO THE UNITED
STATES CONSTITUTION ARTICLE
11622 OF THE FLORIDA
CONSTITUTION.
>> THE SUPREME COURT HAS
SAID A VIOLATION OF THE
CONFRONTATION CLAUSE IS OR
THE RIGHT TO COUNSEL NEITHER
OF THOSE ARE STRUCTURAL
DEFECTS.
THEY ARE SUBJECT TO HARMLESS
ERROR ANALYSIS.
SO THAT'S WHAT WE'RE TALKING
ABOUT WHY WOULDN'T IT BE
HARMLESS ERROR REGARDLESS OF
HOW MANY ELEMENTS IF THEY'RE
ALL UNDISPUTED THEN WHATS
THE DIFFERENCE BETWEEN
HAVING A JURY AND A JUDGE?
AND THEY SAID IT IN NETTER.
THEY SAID IT IN -- WE SAID
IT IN GULINDEZ.
>> THEY DID WITH ONE ELEMENT,
NOT ALL ELEMENTS BUT I THINK
IT WOULD GO TO A PARAGRAPH
OR TWO IN A CASE OF BLARE IN
WHICH IT WAS VERY
ARKICKULATELY STATED THE
IMPORTANCE OF THE JURY TRIAL
RIGHT AND UNITED STATES AND
IN THE STATE OF FLORIDA AND
IT'S THIS PROTECTION THAT
HAS THE CITIZEN BETWEEN
GOVERNMENT AND --
>> WELL, IF THEY WERE THAT
WAY IT WOULD BE PER SE
REVERSIBLE.
>> AND MAYBE WE'LL GET THERE
WITH THAT SOMEDAY BUT WE'RE
NOT NOW.
GUT TO GET BACK TO YOUR
QUESTION, HOW ARE WE GOING
TO DRAW THAT DIVIDING LINE?
YOU ARE GOING TO HAVE A
SITUATION THERE ARE WE GOING
TO SAY WELL IT'S HARMLESS
BECAUSE THE DEFENSE DIDN'T
CONTEST IT BUT THE DEFENSE
STILL HAS RIGHT TO PUT THE
STATE'S FEET TO THE FIRE AND
THE STATE HAS TO COME
FORWARD AND PUT A CASE.
>> WE ARE NOT TALKING ABOUT
PUTTING THE STATE'S FEATS TO
THE FIRE WE ARE TALKING
ABOUT WHETHER IT'S A JUDGE
DECIDING IT OR A ZWRURY
DECIDING IT.
YOU STILL HAVE THE PROVE IT.
>> RIGHT AND UNDER OUR
CONSTITUTIONAL PROTECTIONS
YOU HAVE TO PROVE IT TO A
JURY.
UNLESS YOU HAVE A VALID
WAIVER OF IT AND I THINK YOU
ARE GOING TO RUN INTO A BIG
PROBLEM IN THAT SITUATION
AND THAT SHOULDN'T BE
HARMLESS ERROR WHERE YOU
HAVE AN INN EVERY ELEMENT OF
A MURDER CHARGE NOT
SUBMITTED TO A JURY?
>> THAT'S WHAT HAPPENS IN A
PLEA AGREEMENT.
>> BUT THERE ARE, THE
ADEQUATE PROTECTIONS THERE
THAT IN A PLEA AGREEMENT YOU
ARE GOING TO GO THROUGH A
COLLOQUY WITH THE DEFENDANT
WHERE THE DEFENDANT IS GOING
TO KNOWINGLY, INTELLIGENTLY,
AND VOLUNTARILY AGREE TO THE
PROTECTIONS AND AGREE TO
ENTER A PLEA A TO CHARGE AND
THAT IS A FAR DIFFERENT
SCENARIO THAN NOT HAVING THE
ELEMENTS PRESENTED TO THE
JURY DESPITE FAILURE TO
AGREE TO THAT AND IF I MAY
RESERVE THE REMAINDER OF MY
TIME.
>> SURE.
>> STATE'S VIEW?
>>> MAY IT PLEASE THE COURT
I'M SUEF-ELLEN KENNY WITH
THE OFFICE OF THE ATTORNEY
GENERAL AND REPRESENTING THE
STATE IN THIS MATTER.
>> WOULD YOU AGREE AT THE
OUTSET THAT A, A WAIVER
SIGNED BY THE LAWYER IS NOT
SUFFICIENT?
>> NOT IN THIS CASE.
IN THIS CASE, WE'RE DEALING,
YOU'RE TALKING ABOUT THE
UPTON AND TUCKER CASES, AND
IT'S THE STATE'S POSITION
THAT THERE IS NO CONFLICT
WITH REGARD TO THIS BECAUSE
WE'RE DEALING WITH APPLES
AND ORANGES.
WE HAVE GOT A BIFURCATED
PROCEEDING HERE WHERE WE ARE
DISCUSSING ONLY THE ISSUE OF
PAST CONVICTIONS, WHERE AS
APRENDY'S ALREADY TOLD US WE
DON'T NEED TO HAVE A JURY
FINDING ON PAST CONVICTIONS.
>> BUT I UNDERSTAND YOUR
ARGUMENT BUT APRENDY DID NOT
CONCERN AN ELEMENT OF THE
DEFENSE.
I MEAN, NOW ESSENTIALLY THEY
ARE ELEMENTS OF THE OFFENSE
THE SUPREME COURT HAS SAID
BUT, BUT SPECIFICALLY, THAT
CONCERN, AN ENHANCEMENT NOT
A AN ELEMENT OF THE OFFENSE.
>> I UNDERSTAND THAT HOWEVER
WITH THE EVOLVEMENT OF THAT
AND WITH THE FEDERAL
AUTHORITY THAS BEEN
CONSIDERED THE SAME.
>> I THINK YOU WERE GETTING
TO HARMLESS ERROR.
THE CHIEF JUSTICE QUESTION
WAS MORE, IS THIS ERROR AT
ALL?
WHAT IS YOUR POSITION ON --
>> OUR POSITION IS THAT NO
IT'S NOT ERROR.
THAT WHAT THE PETITIONSER
ESSENTIALLY ASKING FOR IS
THE EXTENSION OF A PRINCIPLE
THAT'S BEEN HELD IN TRIALS
THAT ARE NOT BIFER CADT,
THAT THAT HE WANTS TO HAVE
THAT EXTEND INTO THESE
BIFURCATED PROCEEDINGS
WHEREAS IF YOU HAVE A TUP ON
OR TUCKER, YOU DON'T HAVE
SAVALID WAIVER YOU JUST HAVE
THE LAWYER'S SIGNATURE OR
YOU DON'T HAVE A ORAL
CULILOQUY ON THE RECORD THIS
COURT OVERTURNED THOSE OR
REVERSED THOUGH.
>> -- THOSE.
>> SOW SO ARE YOU SAYING IN
A DEATH PENALTY CASE THAT IS
BIFURCATED THE LAWYER COULD
WAIVE THE DEFENDANT'S RIGHT
TO A TRIAL IN A PENALTY
PHASE?
>> I, I CAN'T ANSWER THAT
WITH CASE LAW BECAUSE I'M
NOT AWARE OF THAT.
I CAN TELL YOU DEALING
SPECIFICALLY WITH THIS CASE
AND WITH THE BIFURCATION
PROCEEDINGS AND THE DUI
UNDER THE DUI STATUTE THAT
YES, THAT CAN BE.
BUT EVEN GETTING AWAY FROM
THAT, THE STATE'S ARGUMENT
THAT THERE IS NO CONFLICT IN
GOING ON TO THE MERITS OF
THIS, WE WOULD SAY THAT
AGAIN IT IS ABSOLUTELY
HARMLESS THAT THE QUESTION
HERE IS WHETHER --
>> AGAIN YOU ARE TRYING TO
GET OVER AND THAT'S FINE.
BUT WE NEED --
>> I'M SORRY, I MISSED PART
OF WHAT YOU SAID.
>> YOU ARE SLIDING OVER TO
HARMLESS ERROR I THINK YOU
ARE HEARING THE QUESTIONS
THAT CERTAINLY THE LAW SEEMS
TO BE IN YOUR FAVOR BUT WE
NEED TO ANSWER SOME OTHER
QUESTIONS AS WELL AND IF YOU
WOULD ADDRESS JUSTICE
PARIENTE'S QUESTION AND YOU
HAVE ELEMENTS OF WHAT HAS TO
BE PROVEN AND ESTABLISHED
AND IF YOU TAKE THIS, THIS
CASE, WELL, LET HER FINISH.
I THOUGHT I HEARD YOU SAID
THAT IT'S IS NOT, IT'S
SUFFICIENT TO ALLOW THE THE
LAWYER TO WAIVE THE CLIENT'S
RIGHT TO A JURY TRIAL IF
IT'S THE SECOND PHASE OF A
TRIAL.
IS THAT WHAT YOUR POSITION
IS?
THAT IS WHAT MY POSITION IS
AND.
>> AND THEN I ASKED YOU HOW
WOULD THAT WORK IN A DEATH
PENALTY CASE WHERE THERE IS
A SECOND PHASE FOR THE
PENALTY PHASE FOR THE JURY
TO HEAR T. YOU SAID YOU
DIDN'T KNOW HOW YOU WOULD
HANDLE IT.
I GUESS WHAT I THOUGHT I WAS
TRYING TO GET YOU TO AGREE
TO IS THAT THE BIFURCATED
NATURE REALLY SHOULDN'T
INFLUENCE WHETHER THAT IS
THE DEFENDANT'S RIGHT TO
WAIVE IT.
IN TERMS OF ONE OR MORE
RECENT CASE, REGARDING THE
DEATH PENALTY, AND PENALTY
PHASE WE ARE TALKING ABOUT
DEFENSE'S SILENCE THROUGHOUT
THAT.
PROCEEDING 'TWAS FOUND THAT
THE LAWYER DID NOT
INEFFECTIVELY PERFORM BY BY
PROVIDING AND NOT GETTING
HIS CLIENTS ON THE RECORD ON
THE RECORD AGREEMENT BECAUSE
THE CLIENT WAS SO
UNRESPONSIVE IN THAT MATTER.
AND THIS COURT OR EXCUSE ME,
IN, I THINK THAT WAS THE 96B
CASE DEALT WITH THE DEATH
PENALTY.
>> WHAT SPECIFICALLY
HAPPENED HERE WITH THIS
DEFENDANT?
>> PARDON ME.
>> WHAT SPECIFICALLY
HAPPENED?
>> IN TERMS OF PRIOR TO
STARTING THE FIRST PART OF
THE TRIAL, THE STATE
INTRODUCED IN THE REDACTED
COPY OF DRIVER'S RECORD
TRANSCRIPT FROM DMV.
IT IT'S OBVIOUS BY THE
RECORD DISCUSSION THAT A
DISCUSSION HAD OCCURRED
PRIOR TO BEING PUT ON THE
RECORD.
THE PARTIES AGREED THIS WAS,
THIS WAS PRESENTED THE WAY
THE PARTIES AGREED.
THE LEADING CERTAIN ITEMS.
INUNREDACTED COPIES WAW
ACCEPTED AS COURT'S EXHIBIT
1, AND THE DEFENDANT'S
COUNSEL SAID THIS IS
SUFFICIENTLY REFLECTED.
IN LOOKING AT THE RECORD.
THE DRIVER'S RECORD.
AFTER THE CONCLUSION OF THE
FIRST PART OF THE TRIAL, WE
COME UP TO THE SECOND PART
OF THE TRIAL AND THE JUDGE
READS OFF THE RECORD OR
EXCUSE ME THE STATE READS
OFF THE RECORD.
THE COURT ASKS IF THERE IS
ANY QUESTION.
ANYBODY HAVE ANYTHING TO
ADD?
NO.
NOW IS THE TIME TO SPEAK UP.
THE ONLY PERSON WHO SAID
ANYTHING IS THE DEFENDANT
WHO DIDN'T UNDERSTAND WHAT
-- HE SAID, YOU KNOW, WHAT'S,
YOU WANT ME TO SAY
SOMETHING?
AND THE JUDGE ASKED AGAIN,
AFTER ALL OF THIS, IS THERE
ANYTHING ANYBODY HAS TO SAY?
NO.
NOBODY DISPUTED THAT THIS IN
FACT WAS THE DEFENDANT.
THIS WAS IN FACT HIS RECORD.
THESE THREE CONVICTIONS THAT
THE STATE LISTED --
>> BUT WHAT ABOUT THE
SPECIFIC STATEMENT AS TO THE
STIPULATION THAT THIS GO
FORWARD.
>> PARDON ME.
>> DEFENSE STIPULATED A
BIRCH TRIAL AND AFFIRMED THE,
-- BENCH TRIAL SCPUFIRMED
THIS STIPULATION AT TRIAL IN
JOHNSON'S PRESENCE.
NOW WHAT SPECIFICALLY IS THE
COURT DISTRICT REFERRING TO
IN THE RECORD?
>> IN TERMS OF THE END OF
THE FIRST TRIAL, THE JUDGE
SAID YOU HAVE PREVIOUSLY
AGREED THAT THE COURT COULD
DECIDE THAT WHETHER OR NOT
MR. JOHNSON HAD PREVIOUSLY
BEEN CONVICTED OF A DUI, IS
THAT CORRECT?
BOTH ATTORNEYS, YES, YES.
AND THAT IS ON 172.
OF THE TRANSCRIPT.
THEN YOU GO ON TO 173 OF THE
TRANSCRIPT AFTER READING ALL
OF THE PRIOR CONVICTIONS,
THE COURT SAID, MR. EARLY,
WHO WAS DEFENSE COUNSEL S
THERE ANYTHING YOU WISH TO
PRESENT.
NO.
THEN THE JUDGE, WHEN, WHEN
THE DEFENDANT ASKED A
QUESTION, THE COURT
RESPONDED, WELL, RIGHT NOW,
I MEAN, THE JURY FOUND WHAT
WE AGREED THE PROCEDURE WE
AGREED TO FOLLOW IS THAT THE
JURY WOULD ONLY BE PRESENTED
THE ISSUE OF DUI.
AT THAT POINT, I WOULD HAVE
TO MAKE THE DECISION AS TO
WHETHER OR NOT YOU HAD
PREVIOUSLY BEEN CONVICTED.
BOTH SIDES STIPULATED AND
AGREED.
MR. EARLY, THE DEFENSE
COUNSEL, CORRECT.
MS. BEN DEL, THE PROSECUTOR,
CORRECT.
AND THIS IS WHAT HAPPENED.
THE JUDGE SAID IT INDICATES
YOU HAVE BEEN PREVIOUSLY
CONVICTED THREE TIMES S.
THAT INACCURATE?
SOMEBODY TELL ME NOW.
I'M ASKING AT THIS POINT IN
TIME FOR SOMEBODY TO CONTEST
THIS.
OR DISPUTE IT IN ANY MANNER.
NOBODY DISPUTED THIS IN ANY
MANNER.
AND THAT'S HOW IT CAME OUT,
AND THE JUDGE HAD TWICE
TALKED ABOUT THE
STIPULATION.
>> YOU SAY THAT THERE IS A
QUESTION BY THE DEFENDANT.
WHAT WAS THE QUESTION?
>> OKAY.
ON 173, THE COURT SAID, TO
MR. EARLY, DEFENSE COUNSEL,
DOES YOUR CLIENT WISH TO
TESTIFY AS TO THIS ISSUE?
IS THERE ANYTHING JUST AS TO
THIS ISSUE?
>> THE DEFENDANT ASKED THE
QUESTION ABOUT.
WITH A QUESTION MARK.
AND THE COURT THEN EXPLAINED
ONCE AGAIN.
BOTH SIDES STIPULATED AND
AGREED.
BOTH TAERNDS SAID YES,
THAT'S -- ATTORNEYS SAID YES,
THAT'S WHAT HAPPENED.
THE JUDGE THEN SAID WELL NOW
WE'RE AT THAT SECOND PHASE.
AND THIS IS WHAT I'M
DECIDING.
IS ANYTHING INACCURATE?
IS THERE ANYBODY WHO CAN
DISPUTE --
>> LET ME ASK YOU JUST ONE
QUESTION THAT IF THIS HAD
OCCURRED BEFORE THE FIRST
PHASE OR AS BEFORE THE TRIAL
HAD BEGUN, AND THE, THE
COURT SAID, YOU KNOW,
THERE'S BEEN A STIPULATION
BUT THERE'S NO, NO, COLLOQUY
AS REQUIRED BY LAW THAT'S
INVOLVED AND THE, THERE'S NO
STIPULATION SIGNED BY THE
DEFENDANT OR STIPULATION
MADE BY THE DEFENDANT.
IT MAY HAVE BEEN IN HIS
PRESENCE.
WOULD THIS COURT OR DID THE
COURTS HOLD THAT AS ERROR OR
NOT.
>> AS TO THE FIRST PART OR
JUST TO THE SECOND PART?
>> AS IF WE WERE BEGINNING
THIS TRIAL AND THE SAME
THING HAPPENED AND -- AND
THE ENTIRE TRIAL WAS JUST
CONDUCTED BEFORE THE JUDGE.
>> OH, OKAY.
>> THEN WOULD WE HOLD THAT
THAT IS AIRER?
>> YES, YOU WOULD.
>> AND WE WOULD HOLD THAT
FOR, FOR WHAT REASONS?
BECAUSE THERE WAS NO
COLLOQUY, CPREKT.
>> CORRECT.
>> AND BECAUSE THE DEFENDANT
HAD NOT SIGNED OFF ON IT,
CORRECT?
>> CORRECT.
>> AND CAN YOU EXPLAIN THEN
WHY IT'S DIFFERENT IT AND WE
HAVE ORDERED A BIFURCATION
AND WHY IS IT DIFFERENT IF
THAT IS CONSIDERED TO BE AN
ELEMENT AND, AND WE'VE HELD
THAT, IT'S ALAN ELTHAT --
IT'S AN ELEMENT THAT MUST BE
PROVEN WHY WOULD IT BE
DIFFERENT IN THE SECOND
PHASE BECAUSE YOU HAVE THE
SAME THING, IT'S NO COLLOQUY
AND YOU HAVE THE SAME THING,
A LAWYER'S STIPULATION, NO
WRITTEN BY THE DEFENDANT AND
SO WHY WOULD THAT BE
DIFFERENT?
>> WELL, APRENDY TELLS US WE
DON'T NEED A JURY
DETERMINATION OF PRIOR
RECORD.
WE WERE JUST LOOKING AT
SNESH THIS IS AN ELEMENT OF
THE CRIME AND WE TALKED
ABOUT THAT.
YOU DISAGREE THAT THIS IS
DIFFERENT?
>> I WOULD SAY THAT THE
ANALYSIS WAS ESPECIALLY THE
WAY THAT IT'S BEEN DEVELOPED
WOULD BE THE SAME.
AND I WOULD ALSO SUBMIT TO
YOU THAT IN THIS PARTICULAR
INSTANCE, WE HAVE ABSOLUTELY
NO DISPUTED FACT.
>> WELL, I UNDERSTAND BUT
ISN'T --
>> THAT'S --
>> THAT'S TO HARMLESS.
WE ARE TRYING TO GET TO YOUR
FIRST POINT, WE ARE TRYING
TO GET TO -- YOUR HELP ON
IT.
IF WE ARE MISCONSTRUING WE
NEED YOUR HELP.
YOUR POSITION, THE STATE'S
POSITION.
>> OUR POSITION IS THAT IT
IS COMPLETELY DIFFERENT WHEN
YOU ARE ASKING A COURT TO
MAKE A DETERMINATION
REGARDING A, AN UNDISPUTED
FACT.
IN THIS CASE.
AND, AND, THE COURT IS NOT
BEING ASKED IN, IN ESSENCE,
TO BE A TRIER OF FACT OR A
DETERMINER OF CREDIBILITY OF
WITNESSES IN THIS INSTANCE.
IN THE DUI BIFURCATION
PROCEEDING, THAT SECOND
PHASE IF YOU'VE GOT THE
RECORD, THE RECORD'S NOT
DISPUTED.
JUDGE ISN'T MAKING ANY
FINDING OF FACT.
AND THAT IN THAT CASE, WE'RE
NOT DEALING WITH SOMETHING
THAT YOU NEED THAT, THAT
SAME WAIVER FOR.
WE'RE NOT HAVING THE JUDGE
RELY ON THE PERFORMANCE OF
THE WITNESSES.
WE'RE NOT HAVING THE JUDGE
DETERMINE WHETHER OR NOT THE
EVIDENCE IS SUFFICIENT OR
NOT SUFFICIENT.
WE'VE GOT UNDISPUTED FACTS
HERE.
AND THAT WOULD BE, I HOPE,
RESPONSIVE TO YOUR QUESTION.
IF IT'S NOT, PLEASE LET ME
KNOW AND I'LL TRY TO --
>> NO, I THINK YOU ARE
ARGUING THE HARMLESS ERROR
ASPECT OF IT, WHICH IS IT'S
NOT IN DISPUTE AND I WAS
TRYING TO GET TO THE FIRST
TWO PARTS BEFORE WE GET TO
THE HARMLESS ERROR ANALYSIS.
THAT'S FINE.
I AM JUST TRYING TO SEE IF
WE WRITE AN OPINION IF WE DO
THIS WHAT WOULD YOU SAY?
>> AND IN TERMS OF THE DUI
THE DUI BIFURCATION
PROCEEDING, WE WOULD ARGUE,
WELL, IN THIS INSTANCE, WE
DO, IT SKIPS RIGHT INTO THE
HARMLESS BECAUSE OF THE
FACTS OF THIS CASE.
BUT ALSO THAT WE DON'T NEED
JURY DETERMINATION, AND I
UNDERSTAND THAT APRENDY WAS
DEALING WITH THE ENHANCEMENT
BUT THE INVOLVEMENT OF THAT
HAS LIKENED IT TO AN ELEMENT
AND THE THAT WOULD BE THE
STATE'S POSITION AT THIS
POINT IN TIME.
DID THAT ADDRESS YOUR
QUESTION.
>> I THINK IT DOES.
THE POSITION OF THE STATE IS
THAT IT DOES NOT REQUIRE
JURY DETERMINATION.
APRENDY SAYS THIS DIDN'T
REQUIRE IT.
>> THAT'S, CORRECT.
AND.
>> SO THEREFORE --
>> YOU DON'T HAVE THE SAME
RIGHTS YOU WOULD HAVE
OTHERWISE.
>> AND IN THIS PARTICULAR
CASE SITUATION, WARE RR
LOOKING AT -- SITUATION
WE'RE LOOKING AT, IT'S
HARMLESS -- EVEN IF YOU ARE
GOING TO DETERMINE THAT OUR
POSITION IS NOT THE
POSITION.
>> I UNDERSTAND.
I UNDERSTAND.
HOW DO YOU WORK THROUGH THE,
THE STRUCTURAL PART OF THIS
FIRST?
THAT'S FINE.
THAT'S FINE.
>> OKAY.
>> THIS IS WHAT I WAS
THINKING ABOUT BECAUSE I
GENERALLY THINK THIS HAS TO
BE HARMLESS BUT IF THE
SCENARIO WAS SOMEONE HAD
PLED GUILTY TO THIS DEFENSE
AND THERE WASN'T A PROPER
PLEA COLLOQUY, THE DEFENSE
TO, AND YOU SAID WELL YOU'VE
GOT TO WITHDRAW THE PLEA BUT
THAT WOULDN'T BE SUBJECT TO
A HARMLESS ERROR TO SAY,
LISTEN, HE HAD NOTHING TO
DEFEND ON ANYWAY ANY, SO
WE'RE NOT GOING TO HAVE,
WE'RE NOT GOING TO HAVE HIM,
HE DOESN'T NEED TO GO
THROUGH A JURY TRIAL.
WE'D NEVER DO THAT AS TO A,
IN A GUILTY PLEA SITUATION,
CORRECT?
>> I'M SORY.
>> YOU'RE NOT GETTING THAT?
>> NO.
>> SOMEBODY, INSTEAD OF,
THIS BEING A, A JURY TRIAL,
HE PLEASE GUILTY TO THIS
OFFENSE.
>> RIGHT.
>> ALL RIGHT?
WE'RE NOW GOING TO THAT IT
WASN'T, THE JUDGE DIDN'T DO
THE PROPER COLLOQUY.
>> OKAY.
>> HE'S NOW PROVING TO
WITHDRAWAL WITHDRAW HIS
PLEA.
>> AT THAT POINT, YOU SAY,
YEAH, IT WAS ERROR BUT HE HE
HAS NOTHING TO DEFEND SO
THEREFORE WE ARE GOING TO
HOLD IT HARMLESS.
WE WOULD NEVER DO THAT ON AN
ISSUE OF WHETHER SOMEBODY
HAD VALIDLY WAIVED HIS, HIS
OR HER RIGHT TO GO TO TRIAL
AND TO PUT THE STATE TO ITS
BURDEN OF PROOF, CORRECT.
>> WELL, IN THE MOTION TO
WITHDRAW THE PLEA, YOU'RE
LOOKING AT IS THE ANALYSIS
THAT YOU'RE CONDUCTING IS
WHETHER OR NOT BUT FOR
WHATEVER ERROR I WOULD'VE
PROCEEDED TO TRIAL AND IS
THAT A REASONABLE ASSUMPTION
THAT YOU WOULD IN FACT
PROCEEDED TO TRIAL WITH SOME
OF THE OTHER MORE RECENT
CASES.
AND YOU'RE WE'RE NOT
LOOKINGATS THE SAME ERROR.
WE'RE NOT CONDUCTING THE
SAME ANALYSIS,.
>> THE OTHER ANSWER IS THAT
IT'S NOT THE DIFFERENCE
BETWEEN TRIAL VERSUS NO
TRIAL.
IT'S THE DIFFERENCE BETWEEN
JURY TRIAL AND JUDGE TRIAL.
YOU'RE STILL GETTING A TRIAL
IN THESE.
>> CORRECT.
CORRECT.
UNDER THE WITHDRAWAL PLEA,
THE DEFENDANT HAS TO REALLY
TELL -- ALLEGE THAT HE
WOULD'VE GONE TO TRIAL
OTHERWISE.
AND I'M NOT SURE IF THAT'S
ANSWERING YOUR QUESTION OR
IF IT'S NOT MAYBE I DIDN'T
HEAR IT CORRECTLY.
>> TIME.
>> OKI.
>> IF ALL NO OTHER
QUESTIONS, THE STATE WOULD
ASK THAT YOU AFFIRM THE
FOURTH DCA'S OPINION IN THIS
MATTER.
>> THANK YOU.
>> THANK YOU.
REBUTTAL?
>> IN TERMS OF THE
BIFURCATED PROCESS AND
WHETHER WHAT WE WOULD
NORMALLY REQUIRE AT THE
BEGINNING OF THE TRIAL I
DON'T SEE ANY REASON OF WHY
WE SHOULD HOLD ANYTHING LESS
IN TERMS OF A WAIVER.
BLARE, WHICH IS A CASE FROM
THIS COURT DEALT WITH
REDUCING THE JURY FROM 6 TO
5 ASIMILAR ANALOGOUS
SITUATION WHICH IS WHEN YOU
ARE DOING THAT YOU ARE
GETTING LESS THAN WHAT THE
CONSTITUTION ALLOWS YOU.
THAT'S THE SAME THING HERE.
THE JURY GOT LESS THAN WHAT
THE CONSTITUTION GUARANTEED
HIM.
AND BLARE REQUIRED THAT
THERE BE SOME DISCUSSION
WITH THE DEFENDANT ON THE
RECORD AND THAT HE BE THE
PERSON THAT PERSONALLY
CONSENTS TO THE REDUCTION IN
HIS JURY TRIAL RIGHT.
SO I THINK THAT THAT WOULD
CARRY OVER INTO THIS CASE
ALSO.
>> ARE THERE OTHER TYPES OF
SITUATIONS WHERE SOMETHING
OF A GOVERNMENT RECORD THAT
MAY BE OUTSTANDING OR
SOMETHING, THAT'S THE ONLY
SUBJECT TO PROOF.
SOMETHING, ANYTHING AT ALL
SIMILAR TO THIS DRIVING
RECORD WHERE THIS KIND OF
ISSUE HAS EVER BEEN
DISCUSSED?
>> WELL, I CAN SEE IT COMING
UP IN SOME CONTEXT IN
POSSESSION OF A FIREARM BY A
CONVICTED FELON CASES.
HOWEVER, THERE'S NOT GOING
TO BE DRIVERING RECORD, THAT
TYPE OF THING.
I THINK IN THAT SITUATION
YOU ARE GOING TO HAVE A
JUDGMENT OF CONVICTION
THAT'S PROBABLY GOING TO GO
ENTERED INTO EVIDENCE WITH
FINGERPRINTS THAT ARE GOING
TO TIE THE PERSON IN
DOCUMENTARY EVIDENCE.
THAT'S THE ONE THING I CAN
THINK OF.
I DON'T KNOW, WELL, FELONY
PETTY THEFT.
SITUATION THAT WOULD BE
SIMILAR TO THIS.
AGAIN, YOU PROBABLY HAVE
JUDGMENTS OF CONVICTION
THERE, NOT SOME COMPOSIT
LIKE A -- I THINK THAT AS I
SAID I UNDERSTAND THAT I MAY
BE HERE FOR JUST HALF A LOAF
TODAY.
AND IT MAYBE ULTIMATELY AT
THE END OF THE DAY YOU ALL
ARE GOING TO DECIDE THIS WAS
HARMLESS ERROR ALTHOUGH I'VE
ASKED YOU NOT TO, THAT MAY
HAPPEN BUT I THINK IT'S VERY
IMPORTANT THAT YOU DO SET
OUT, THAT HERE IS WHAT A
VALID OR WAIVER, THE RIGHT
TO JURY IS, AND IT'S NOT
WHAT OCCURRED IN THIS CASE
AND IT DOES APPLY TO
BIFURCATED PROCEEDINGS.
SO THAT THIS TYPE OF THING
DOESN'T HAPPEN AGAIN.
>> WE THANK YOU FOR YOUR
CANDOR IN PRESENTING YOUR
ISSUES TO THE COURT WE ARE
ENLIGHTENED ON THIS ISSUE.
THE COURT WILL TAKE IT'S
MORNING RECESS NOW.
>> ALL RISE.,,,,
THE COURT STANDS RECESSED