THE NEXT CASE IS JAMES ROGER HUFF SKRERZ THE STATE OF FLORIDA. -- VERSUS THE STATE OF FLORIDA. MR. VOLLRATH.

THANK YOU, YOUR HONOR. MY NAME IS ROGER VOLLRATH. I REPRESENT JAMES ROGER HUFF. WE ARE HERE TODAY ON A LONG AND COMPLICATED CASE, INVOLVING ABOUT 33 PAGES OF TRIAL TRANSCRIPT AND 235 PAGES OF BRIEFS AND 2000 PAGES, APPROXIMATELY, OFMACY MISCELLANEOUS PLEADINGS, REVOLVING AROUND -- OF MISCELLANEOUS PLEADINGS, REVOLVING AROUND THE ADDITIONAL MATERIALS. WHAT I WOULD LAKE TO ADDRESS, TODAY, WITH THE COURT, IN ORAL ARGUMENT, IS THE HIGHLIGHT OF THE WEAKEST POINTS OF THE STATE'S CASE AGAINST MR. HUFF.

MR. VOLLRATH, WHO ACTUALLY DRAFTED AND FILED THE 3.850 MOTION THAT WE ARE LOOKING AT?

THE 3.850 MOTION WAS ORIGINALLY DRAFTED BY THE CCR. I HAEFB A PETER MILLS. I AM NOT EXACTLY SURE. WHAT ATTORNEY -- I AM ABOUT THE NINTH ATTORNEY ON THIS CASE. ACTUALLY DRAFTED IT. BUT IT WAS DONE PIE CCR. THEN -- DONE BY CCR. THEN, AFTER THE HUFF HEARING WAS HELD ON DECEMBER 23 OF 1996, CCR WITHDREW, BECAUSE OF THE UNDISCLOSED CONFLICT, AND AFTER THAT, MR. WILLIAM EBBLY WAS APPOINTED BY THE JUDGE TO HANDLE THE EVIDENTIARY HEARING ON THE ONE ISSUE ON WHICH THE EVIDENTIARY HEARING WAS GRANTED. AFTER THAT EVIDENTIARY HEARING WAS HELD, MR. EBBLY WITHDREW FROM THE CASE, AND I WAS APPOINT ODD AT THAT POINT. I WOULD SUGGEST, FOR THE COURT'S CONSIDERATION, THAT THE FIRST ISSUE THE COURT SHOULD LOOK AT IS THE FAILURE OF THE TRIAL COURT TO ALLOW MR. EBBLY, AFTER HE WAS AFTER POINTED TO REPRESENT MR. HUFF, TO SUMMARY DENY THE COURT'S FILE. MR. EBBLY STATED, ON THE ONE ISSUE, STATED THAT THE PROCEEDINGS WERE BARRED. MR. EBBLY, AFTER LOOKING AT THE TRANSCRIPT, ASKED THE COURT TO PROVIDE WITH THE VERY DETAILS AND SPECIFICITY IN WHICH THE COURT SAID WAS LACKING ON LEGAL ISSUES FOR WHICH IT SAID THAT IT WAS LACKING FOR LEGAL SUFFICIENCY AND THAT THE COURT SAID IT WAS TIME BARRED AND THE RECENT PROCESS.

THAT WAS AFTER THE HUFF HEAR SOMETHING A THAT WAS AFTER THE HUFF HEARING. MR. EASTBOUNDLY RECEIVED AND WAS APPOINTED IN -- MR. EBBLY WAS RECEIVED AND APPOINTED IN FEBRUARY OF '97. HE RECEIVED ALL OF THESE BOXES. HE READ THEORD HEER. HE -- HE READ THE ORDER. HE READ THE TRANSCRIPTS. HE DECIDED THAT, IN FACT, THERE WAS A GREAT DEAL OF SPECIFICITY THAT COULD HAVE BEEN PROVIDED TO THE COURT WHICH WOULD HAVE ALLOWED ADDITIONAL EVIDENTIARY HEARINGS. THE COURT SAID, NO, IT IS TIME BARRED AND IT IS AN ABUSE OF THE PROCESS. FOR THE REASONS SET FORTH IN THE BRIEF, IT IS CLEAR THEY WEREN'T TIME BARRED, BECAUSE HE WASN'T RAISING NEW ISSUES. HE WAS SIMPLY TRYING TO SUPPLEMENT A LONG LINE OF CASES THAT SAY THAT YOU CAN DO THAT.

IF WE ALLOWED THAT KIND OF SUPPLEMENT, IN A SITUATION WHERE WE HAVE ALREADY HAD A HEARING TO DETERMINE THE SUFFICIENCY OF THE ALLEGATIONS AND WHICH, IF ANY, OF THE ALLEGATIONS ARE GOING TO HAVE EVIDENTIARY HEARINGS. IF WE ARE GOING TO ALLOW SUPPLEMENTATION AT THAT POINT, WE WOULD HAVE THAT KIND OF SUPPLEMENT IN ANY SITUATION WHERE THE COURT FOUND AN ISSUE TO BE INSUFFICIENT.

WELL, I THINK IN THIS PARTICULAR CASE, THOUGH, IT WAS A BIT UNIQUE, IN THAT THE INDIVIDUALS WHO PREPARED THE 3.8 AN ARE -- THE 3.850 WERE NOT THE ATTORNEYS WHO ULTIMATELY APPOINTED TO DO THE EVIDENTIARY HEARING. THAT AFTER REVIEWING THE 3.850 AND THE ORDER THAT THE COURT GAVE, MR. EBBLY BELIEVED THAT THERE WAS SUFFICIENT FACTS IN THE RECORD THAT SHOULD HAVE BEAN ALLEGED. AND THAT IT WASN'T.

HOW LONG BEFORE THE HUFF HEARING WAS THIS COUNSEL ONBOARD?

THE HUFF HEARING WAS HELD DECEMBER 23 OF 1996. AND MR. EBBLY WAS APPOINTED SOMETIME IN FEBRUARY OF 1997. THE HEARING, ITSELF, WAS HELD, I BE LEAVE, AUGUST -- I BELIEVE, AUGUST THE 8 OF THAT YEAR. ANOTHER ISSUE THAT THE COURT SHALL LOOK AT IS THE --

COULD YOU GIVE US AN EXAMPLE, JUST ONE EXAMPLE OF A CLAIM AN IMPORTANT CLAIM THAT WAS FOUND TO BE LEGALLY INSUFFICIENT, THAT IF THE AMENDMENT HAD BEEN ALLOWED, THAT THERE WOULD BE NO QUESTION THAT IT WOULD HAVE BECOME LEGALLY SUFFICIENT, SO THAT AN EVIDENTIARY HEARING WOULD BE REQUIRED. JUST ONE EXAMPLE.

TWO SPECIFIC EXAMPLES THAT STRUCK ME. ONE WAS THE FAILURE OF THE DEFENSE ATTORNEY TO QUALIFY A. L. WHITE AS THE CRIME SCENE EXPERT, TO TESTIFY TO CONTAMINATION OF THE CRIME SCENE. WHAT OCCURRED WAS THAT MR. HUFF'S ATTORNEYS APPARENTLY FOUND SOMEBODY WHO BE A CRIME SCENE EXPERT, IN THE MIDDLE OF THE TRIAL. HE IS, THEN, PROVIDED SOME INFORMATION, UPON WHICH TO BASE AN OPINION THAT THE CRIME SCENE WAS CONTAMINATED, AND THEREFORE --

SOMEONE OTHER THAN MR. WHITE?

NO. THE -- THE DEFENSE WANTED TO PUT MR. WHITE ON. WHEN THEY PUT MR. WHITE ON, THE STATE SAID THAT, BECAUSE THEY HAD NOT HAD AN OPPORTUNITY TO DEPOSE HIM, THAT THEY WANTED AN OPPORTUNITY TO HAVE A PROFFER. THE DEFENSE PROFFERED IT. AND THE STATE OBJECTED ON THE GROUNDS THAT HE DID NOT HAVE -- WAS NOT GIVEN SUFFICIENT INFORMATION UPON WHICH TO BASE AN OPINION, AND THE COURT AGREED WITH THAT. THE COURT, THEN, ADJOURNED, AND GAVE ADDITIONAL TIME FOR THE ATTORNEYS TO PREPARE THEIR WITNESS. HE GETS ON THE STAND, I BELIEVE, THE NEXT MONDAY, FRIDAY TO MONDAY, GETS ON THE STAND. THEY TRY TO PROFFER IT AGAIN. AND IN THE CROSS-EXAMINATION, THE PROSECUTOR SHOWS THAT ALL THIS INFORMATION HE WAS GIVEN, HE WAS GIVEN ABOUT AN HOUR BEFORE HE GOT ON THE STAND THAT MORNING, AND, REALLY, HE HAD NOT REVAUD THE MATERIALS AT ALL -- REVIEWED THE MATERIALS AT ALL, TO ANY SIGNIFICANT DEGREE, AND THE COURT ONCE AGAIN RULED THAT HE -- THERE WAS INSUFFICIENT BASIS. HE HAD INSUFFICIENT INFORMATION TO RENDER AN EXPERT MIGNON AS TO THE CONTAMINATION -- EXPERT OPINION AS TO THE CONTAMINATION OF THE CRIME SCENE AND THE POSSIBLE EXCULPATORY EVIDENCE.

THAT IS AN INEFFECTIVE ASSISTANCE OF COUNSEL TAPE OF CHRA..

THAT WAS GUILT PHASE, IN THE TRAIL, ITSELF.

GUILT PHASE.

GUILT. YES. WHAT ABOUT, SO I AM -- SO EITHER THE DETAIL THAT YOU ARE GIVING US, WHICH IS THE DETAIL OF WHAT THE RECORD WHAT SHOW, WHAT IS IT, I MEAN, YOU WOULD BE SAYING THE SAME, WAS THAT RAISED INITIALLY, AS ONE OF THE CLAIMS, THAT THEY DIDN'T PROPERLY PREPARE THIS WITNESS?

YES.

AND SO YOU ARE SAYING THE SAME ARGUMENT COULD BE WAS THAT, WHY SHOULD NOT AN EVIDENTIARY HEARING HAVE BEAN GRANTED ON THAT?

BECAUSE APPARENTLY THE TRIAL JUDGE FELT THAT, WHATEVER WAS ALLEGED IN THE 3.850 MOTION, WAS INSUFFICIENT SPECIFICITY TO WARRANT ADD EVIDENTIARY HEARING. -- TO WARRANT AN EVIDENTIARY HEARING. THAT IS THE ONLY ISSUE THAT WE ARE ASKING FOR AT THIS POINT IS THAT THERE SHOULD HAVE BEEN AN EVIDENTIARY HEARING. THEN YOU HAVE MR. EBBLY, WHO SAYS, OKAY, IF YOU WANTED AITIONAL DETAILS ON THESE POINTS THAT YOU HAVE DECLINED TO HEAR OR GRANTED EVIDENTIARY HEARING, BECAUSE THERE WAS INSUFFICIENT FACTS PRESENTED, I WILL GIVE YOU THE ADDITIONAL FACTS, AND THE JUDGE SAID I DON'T WANT TO HEAR THEM!

SO BACK TO THE, WHY WE SHOULD ALLOW THAT KIND OF SUPPLEMENTATION AT THAT POINT, IS IT YOUR ARGUMENT, BECAUSE THERE WAS A NEW ATTORNEY, THAT WE SHOULD ALLOW THE SUPPLEMENTATION?

I DON'T THINK THAT, ALONE, WOULD JUSTIFY T.

SO WHAT, IN ADDITION TO THAT, WOULD JUSTIFY IT IN THIS PARTICULAR CASE?

THE FACT THAT THE COURT SAID THAT THERE WAS AN INSUFFICIENT BASIS TO GRANT AN EVIDENTIARY HEARING. THERE WASN'T ENOUGH FACTS ALLEGED. HAD THE JUDGE SAID THAT AT THE DECEMBER 23 HUFF HEARING, AND THE NEXT DAY, THE ATTORNEY FOR HUFF HAD SAID, HAD FILED A MOTION, REQUESTING OR FILED SAUP LIMITAL MOTION, SUPPLEMENTING THE RECORD WITH ADDITIONAL FACTS, WOULD HE HAVE THE RIGHT TO DO THAT? I THINK THE RULE CLEARLY SAYS HE HAS A RIGHT TO SUPPLEMENT A 3.850, JUST LIKE THE STATE ASKS, IN THIS CASE, TO HAVE THE RECORD, TO HAVE THE COURT RELINQUISH JURISDICTION BACK TO THE TRIAL COURT, SO THAT THE TRIAL COURT COULD ATTACH COPES OF THE RECORD, A EXCERPT FROM THE RECORD, WHICH IT FAILED TO DO WHEN THIS CASE WENT UP.

WE HAVEN'T SAID THAT THEY HAVE THE RIGHT TO SUPPLEMENT AFTER A DETERMINATION HAS BEEN MADE ON THE SUVs OF THAT INITIAL -- ON THE SUFFICIENCY OF THE INITIAL PETITION? I KNOW THAT THERE HAVE BEEN TIMES WHEN WE HAVE HAD SHELL MOTIONS FILED, AND THEN THE COURTS HAVE BEEN, GENERALLY, LENIENT, IN ALLOWING THERE TO BE IS UP LEPTS TO THOSE, BUT THAT IS -- TO BE SUPPLEMENTS TO THOSE, BUT THAT IS BEFORE A HUFF HEARING TO DETERMINE THE SUFFICIENCY OF THE MOTION AND DETERMINE WHETHER OR NOT THERE SHOULD BE AN EVIDENTIARY HEARING? HAVE WE HAVE DONE IT AFTER THE HUFF HEARING?

I DON'T KNOW WHETHER IT HAS COME UP BEFORE IN THIS POSTURE.

HOW LONG HAD THIS ORIGINAL MOTION BEEN FILED?

THE ORIGINAL 3.850 MOTION?

YES.

IT HAD BEEN FAILED, WELL, INITIALLY A 230-PAGE MOTION HAD BEEN FILED. AND THEN THAT WAS SUPPLEMENTED BY A, BY ANOTHER 38 PAGES. SO IT HAD BEEN PENNEDING FOR A CONSIDERABLE PERIOD OF TIME. IN FACT, THE JUDGE SAID THAT THE TRANSCRIPTS HAVE BEEN AVAILABLE TO COUNSEL, ALBEIT NOT TO MR. EBBLY PERSONALLY, FOR OVER A DECADE, AND THAT WAS THE REASON WHY THE COURT SAID ONE OF THE REASONS THE COURT GAVE FOR NOT ALLOWING A --

SO HOW FAR DO WE TAKE THIS? HOW LONG DO WE, AND AT WHAT POINT CAN YOU NO LONGER SUPPLEMENT?

I DON'T KNOW IF THERE IS A BRIGHT-LINE, YOUR HONOR. THE RULE SEEMS TO ALLOW THAT THE RECORD CAN BE SUPPLEMENTED. IT DOESN'T REALLY PUT A TIME BAR ON WHEN THAT CAN BE. THERE IS A TIME BAR ON FILING A NEW OR A SUCCESSIVE PETITION, BUT NOT A TIME --

SO YOU WOULD AGREE THAT, TO THE EXTENT ANY OF THE CLAIMS THAT SUBSEQUENT ATTORNEY ATTEMPTED TO SUPPLEMENT WITH, IF THEY WERE NEW CLAIMS, THEY WERE TAME BARRED.

WELL, THE -- THEY WERE TIME BARRED.

WELL, THE LAW, AS CITED IN THE BRIF BRIEF, ISN'T THAT CLEAR -- IN THE BRIEF, ISN'T THAT CLEAR, EITHER, WHETHER OR NOT YOU CAN ACTUALLY RAISE NEW ISSUES. I WOULD SAY THAT THE CASE LAW SEEMS TO INDICATE THAT NEW ISSUES CAN BE RAISED, BUT IT IS NOT AS STRONG AS THE CASE LAW THAT SAYS, YES, YOU CAN SUPPLEMENT.

DOESN'T BROWN PRETTY MUCH SAY THAT, IF YOU ARE REALLY TALKING ABOUT A SUPPLEMENT, THAT IS ADDITIONAL INFORMATION, TO CHAPS THAT HAVE ALREADY BEEN FAILED, YOU CAN DO THIS?

RIGHT. BUT I DON'T THINK, IN ANSWER TO YOUR QUESTION, THAT THERE IS AN ABSOLUTE BAR TO RAISE NEW ISSUES, BUT CLEARLY THE LAW SAYS YOU CAN SUPPLEMENT ISSUES THAT YOU HAVE ALREADY RAISED.

IS THE SUPPLEMENT -- IS WHAT THE COUNSEL ATTEMPTED TO SUPPLEMENT, THE AMENDED, MORE DETAILED MOTION, IN THE RECORD?

WHAT HE DID WAS, IN FILING HIS MOTION, HE ATTACHED TO THAT MOTION ADDITIONAL FACTS FOR SUBARGUMENTS, BUT HE DIDN'T, BUT HE, ALSO, SAID THERE IS OTHER ISSUES I WOULD WANT TO BRING UP, IN TERMS OF SOME OF THE ARGUMENTS MORE FACTUALLY SPECIFIC.

ISN'T THAT, REALLY, AS MUCH OF A PROBLEM AS ANYTHING HERE, IN TERMS OF WHETHER THE JUDGE ABUSED HIS DISCRETION? WE ARE TALKING ABOUT A CASE THAT IS DECADES OLD, AND WE ARE SITTING HERE, TODAY, EVEN WONDERING WHAT WOULD THOSE ADDITIONAL ALLEGATIONS BE? DOESN'T THAT JUST CREATE A PROBLEM THAT, IF COUNSEL AT THAT TIME, REALLY, SAID, WAIT A SECOND, JUDGE. YOU CAN'T DENY MY INEFFECTIVE ASSISTANCE OF PENALTY-PHASE COUNSEL, BECAUSE I HAVE THIS TO ALONG. HERE IT IS. HEAR ARE THE DETAILS. AND WE HAD IT BEFORE US. WE COULD, THEN, DETERMINE WHETHER, YOU KNOW, LIKENED TO CIVIL CASES OR, YOU KNOW, THAT THE PLEADINGS WEREN'T SUFFICIENT ENOUGH, WE COULD LOOK AT IT, BUT WE DON'T HAVE ANYTHING HE HAVE TONE GAUGE WHETHER IT WOULD BE SUFFICIENT.

WELL, MR. EBBLY, IN HIS MOTION, DID PROVIDE SOME SPECIFICITY. WHAT HE SAID WAS THAT HE COULD PROVIDE MORE, IF HE HAD ADDITIONAL TIME, BUT THE COURT DIDN'T EVEN SAY, OKAY, I WILL ACCEPT WHAT YOU FILED WITH YOUR MOTION BUT I AM NOT GOING TO HEAR ANYTHING ELSE. THE COURT JUST SAID IT IS TIME BARRED AND IT IS AN ABUSE.

THERE IS A LOT OF MULTIPLE SPECIFIC ISSUES THAT YOU HAVE RAISED. NORMALLY WHAT THIS COURT HAS LOOKED AT AS BEING THE KINDS OF CLAIMS THAT MAY WARRANT AN EVIDENTIARY HEARING ARE THOSE WHERE THERE IS INEFFECTIVE ASSISTANCE AT THE GUILT PHASE OR PENALTY PHASE, BECAUSE ADDITIONAL INVESTIGATION COULD HAVE BEEN DONE. THERE WERE ADDITIONAL WITNESSES THAT WEREN'T PRESENTED THAT WERE DISCOVERED. IS THERE ANYTHING LIKE THAT, IN THIS CASE, THAT YOU KNOW, WE CAN LOOK AT ON THIS RECORD, TO SAY, OF ALL OF THESE 41 REMAINING CLAIMS, THAT THERE IS SOMETHING LIKE THAT, AS OPPOSED TO THINGS LIKE NOT OBJECTING WHEN YOU SHOULD HAVE OBJECTED OR NOT CROSS-EXAMINING ENOUGH? THINGS THAT WOULD BE OUTSIDE OF THE RECORD, ITSELF, THAT YOU HAVE SAID, WELL, IF I HAD HAD A CHANCE TO HAVE AN EVIDENTIARY HEARING, I COULD HAVE PUT ON THESE WITNESSES THAT WOULD HAVE BEEN ABLE TO EXONERATED THE DEFENDANT OR SOMETHING PLICK -- SOMETHING LIKE THAT?

ONE OF THE OTHER VERY STRONG ISSUES THAT LEAPED OUT TO ME, FROM THE PLEADINGS, WAS AN ALLEGATION THAT A KEY DEFENSE WITNESS WAS INTIMIDATED BY AGENTS OF THE STATE AND INTO CHANGING HER TESTIMONY. THE CONVENIENCE STORE CLERK WOULD HAVE TESTIFIED THAT SHE OBSERVED MR. HUFF COME TO THE CONVENIENCE STORE, THAT HE GOT OUT OF THE CAR, THAT HE MADE A PURCHASE OF SOME DRINKS AND SOME SNACKS, PAID WITH A $20 BILL, APPEARED TO BE VERY NERVOUS AND UPSET. MOST SIGNIFICANTLY, SHE OBSERVED THAT THERE WERE TWO PEOPLE IN THE FRONT SEAT, AND MORE SIGNIFICANTLY, THAT SHE OBSERVED A FOURTH PERSON IN THE BACKSEAT. THAT SHE REALIZED, AFTER SHE READ THIS IN THE PAPER, SHE MADE COMMENTS TO A NEIGHBOR, WHO SUGGESTED THAT SHE CALL THE POLICE, THAT SHE GAVE THE STATEMENT THAT APPARENTLY HER SON, WHO WAS ON PROBATION, HAD HAD A NEW CHARGE, WAS, THAT SHE, ACCORDING TO THE ALLEGATION, SHE WAS THREATENED THAT IF SHE GAVE THAT SORT OF TESTIMONY, HER SON WOULD BE GOING TO THE STATE PRISON, AND IF THAT ALLEGATION IS TRUE, THAT IS A VERY SUBSTANTIAL --

YOU HAVE THAT IN THE FORM OF WHAT? I MEAN, IS THERE AN AFFIDAVIT TO THAT EFFECT?

NO, MA'AM. THERE WAS AN ALLEGATION IN THE 3.850, THAT THE STATE HAD INTIMIDATED AND TAMPERED WITH DEFENSE WITNESSES. NOW, APPARENTLY THE JUDGE, THE TRIAL LEVEL, FELT THAT THAT ALLEGATION, ALONE, WAS NOT SUFFICIENT TO WARRANT AN EVIDENTIARY HEARING, WHICH IS ONE OF THE REASONS WHY MR. EBBLY AND I THINK ANY ATTORNEY WHO REVIEWED THAT, WOULD HAVE SAID, WELL, IF YOU WANT MORE ADDITIONAL INFORMATION, ALLEGATIONS, THAT WE SHOULD HAVE THE OPPORTUNITY TO PROVIDE YOU WITH THAT.

DO YOU --

IT SEEMS --

I WAS GOING TO INDICATE HE IS IN HIS REBUTTAL TIME, BUT GO AHEAD, JUSTICE QUINCE.

JUST AS A FOLLOW-UP TO THAT, THERE SEEMS TO BE SOME ALLEGATION,, THAT SHE RECANTED THAT, SAYING THAT SHE HAD MADE UP THE WHOLE THING, AND WHERE DO WE GET THAT FROM?

WELL, THAT IS OUT OF THE, SOME OF THE TESTIMONY, I BELIEVE. I AM NOT EXACTLY SURE, YOUR HONOR. TO BE HONEST WITH YOU, I CAN'T RECALL WHERE THAT WAS, IN ALL OF THE MULTIFAIRIOUS PLEADINGS THAT HAVE BEEN FILED, BUT SHE DID RECANT. THAT IS THE WHOLE PROBLEM IS THAT SHE CLAIMED SHE RECANTED BECAUSE SHE WAS COERCED INTO RECANTING, AND THAT IS PRETTY SERIOUS AND SHOULD AT LEAST WARRANT AN EVIDENTIARY HEARING. TWO OTHER ISSUES THAT I THINK THE COURT NEEDS TO LOOK AT IS THE WAIVER AND THE IMP MINGS POSITION OF THE -- AND THE IMPOSITION OF THE DEATH PENALTY AND THE CIRCUMSTANCES UNDER WHICH THAT OCCURRED AND, ALSO, LAST AND CERTAINLY NOT LEAST THE FACT THAT THE COURT DENIED THE RELIEF ON THE PLEA AGREEMENT ISSUE.

WHEN YOU TALK ABOUT THE WAIVER, YOU ARE TALKING ABOUT PUTTING THIS TO THE JURY OVER THE WAIVER OF THE DEFENDANT?

NO. WHAT OCCURRED, WHICH WAS VERY STRANGE PROCEDURE, IS AFTER THE JURY CAME BACK GUILTY, MR. HUFF GOT UP AND SAID THAT HE WANTED TO WAIVE -- HE WANTED TO WAIVE THE PENALTY PHASE AND THE COURT SAID, AND RECEIVE THE DEATH PENALTY, AND THE COURT SAID OKAY, AND THE NEXT DAY ALLOWED HIM TO WAIVE IT. AND IMPOSE THE DEATH SENTENCE. THE QUESTIONS FOR THIS COURT TO CONSIDER IS, ONE, WHETHER OR NOT HE KNOWINGLY AND INTELLIGENTLY WAIVED IT. TWO, WHETHER OR NOT IT IS A WAVEABLE THING, WHETHER OR NOT A DEFENDANT CAN CAREFUL THAT SORT OF THING. THIRD, THAT IF HE DID WAIVE IT, WHETHER OR NOT THE JUDGE ABUSED HIS DISCRETION IN ALLOWING IT TO BE WAIVED, KNOWING THAT THERE WERE WITNESSES WHO COULD HAVE TESTIFIED TO EXCULPATORY EVIDENCE, SITTING IN THE COURTROOM OR AT LEAST OUTSIDE. THEN THE NEXT THING THE COURT HAS TO LOOK AT IS THE STRANGE THING THAT OCCURRED WITH THE, WHEN THEY WAIVED IT, THE STATE DID NOT PUT ON ANY AGGRAVATING CIRCUMSTANCES AND SIMPLY SAID TO THE COURT, HOW ABOUT TAKING JUDICIAL NOTICE OF THE LAST TRIAL? THE DEFENSE OBJECTED AND THE JUDGE SAID, OKAY, HE WOULD, AND UNDER THE RULE, IT SEEMS PRETTY CLEAR THAT, IN ORDER TO GET IN PRIOR TESTIMONY, YOU HAVE TO SHOW UNAVAILABILITY OF THE WITNESSES, AND THERE WAS NO UNAVAILABILITY, AND THAT THAT WOULD BE ERROR.

WAS THAT RAISED ON.

DIRECT APPEAL? THE TRIAL JUDGE'S TAKING JUDICIAL NOTICE OF THAT?

I BELIEVE SO, YES, BUT I DON'T THINK ALL OF THE ISSUES THAT I HAVE RAISED HERE WERE RAISED IN THE BRIEF. AND THEN LAST BUT NOT LEAST, THE PLEA AGREEMENT, WHERE THE COUNSEL FAILED TO CONVEY THE PLEA OFFER OF HUFF TO PLEAD GUILTY, AFTER DISCOVERING THAT THEY WEREN'T GOING TO HAVE A CRIME SCENE EXPERT, AND THAT OFFER BEING, NOT BEING CONVEYED TO THE STATE. THANK YOU.

THANK YOU. MS. RUSH.

MAY IT PLEASE THE COURT. MY NAME IS JUDY TAYLOR RUSH. I AM ASSISTANT ATTORNEY GENERAL REPRESENTING THE STATE OF FLORIDA IN THIS CASE. THE ISSUE THAT MR. VOLLRATH SPENT MOST OF HIS TIME ON WAS THE THIRD CLAIM RAISED IN THE BRIEF. AND THAT WAS THE CLAIM THAT THE DEFENSE ATTORNEY, MR. EBBLY, SHOULD HAVE BEEN PERMITED TO FILE AN AMENDMENT TO THE AMENDED AND SUPPLEMENTED 3.850, TO PUT IN ADDITIONAL FACTS AND CIRCUMSTANCES THAT HE THOUGHT WOULD HAVE SATISFIED THE TRIAL JUDGE, AND CAUSED THE JUDGE TO GRANT AN EVIDENTIARY HEARING. RATHER THAN FIND THAT THE ALLEGATIONS IN THE MOTION WERE INSUFFICIENT.

AND WHAT WOULD HAVE, UNDER THE CIRCUMSTANCES OF THIS CASE, WHERE THE ATTORNEY WAS APPOINT APPOINTED, LOOKS LIKE A COUPLE OF MONTHS AFTER THIS HUFF HEARING, AND HAD NO REAL KNOWLEDGE AND CERTAINLY NO HAND IN THE DRAFTING OF THIS 3.850 MOTION, WHAT WOULD HAVE -- WHY NOT ALLOW HIM TO AMEND THE 3.850 MOTION, IF HE IS GOING TO, NOW, HAVE TO DEAL WITH THIS?

WELL, BECAUSE THAT ISSUE HAD ALREADY BEEN FULLY BRIEFED AND ARGUED TO THE COURT. THE COURT HAD CONSIDERED IT. HAD DECIDED THE ISSUE. THE ONLY THING THAT MR. EBBLY WAS IN THE CASE FOR WAS TO CONDUCT THE EVIDENTIARY HEARING ON THE ISSUE THAT WAS ORDERED A HEARING ON AT THE TIME THE HUFF HEARING TOOK PLACE. THE FIRST 3.850 IN THIS CASE WAS FILED IN 1988, AND IT, YOU KNOW, CAME UP ON APPEAL. IT WENT BACK. ONE THING OR ANOTHER LIKE THAT. THE AMENDED 3.850, AFTER A COUPLE OF YEARS OF PUBLIC RECORDS' SEARCH, WAS FILED IN 1996, AND THAT WAS A 238-PAGE MOTION. TWO WEEKS LATER, CCR FILED AN APPROXIMATELY 20, I THINK, PAGE SUPPLEMENT TO THAT MOTION.

SO THE MOTION THAT WAS THE SUBJECT OF THE HUFF HEARING WAS THE 230-PAGE MOTION?

PLUS 20 YEARS, OR 258 PAGES, I BELIEVE THAT WAS, AND THE STATE SAID THAT THAT WAS ENOUGH PAGES, IF YOU HAVE GOT ONE, ON WHICH IT COULD BE GRANTED. THE TRIAL JUDGE CAREFULLY LOOKED AT EACH ONE OF THESE ISSUES. THE CRR -- THE CCR ATTORNEY WAS THERE. THE JUDGE ASKED HIM, AS THEY WENT THROUGH EACH ISSUE AT THE TIME, WHAT HE HAD TO SAY IN REGARD TO OR SUPPORT OF THE MOTION, AND HE SAID WE STAND ON THE MOTION AS WRITTEN.

WHAT ABOUT THE ISSUE YAW THAT HE RAISES, HEAR, NOW, THE ISSUE CONCERNING THE RECANTED TESTIMONY? NOW, THAT SEEMS LIKE SOMETHING THAT SHOULD HAVE HAD SOME EVIDENTIARY DEVELOPMENT, AND WHY SHOULDN'T THAT HAVE BEEN THE SUBJECT OF THE HEARING, ALSO?

WELL, THERE IS SEVERAL REASONS IF THAT. ONE REASON IS THE WAY THAT IT WAS RAISED IN THE MOTION WAS JUST TO THROW THE CLAIM OUT THERE. AND THE 3.850 RULE REQUIRES THAT YOU HAVE TO PLEAD YOUR CLAIMS WITH SPECIFICITY. YOU HAVE TO STATE SOME FACTS AND CIRCUMSTANCES UPON WHICH THE COURT COULD FIND THAT RELIEF SHOULD HAVE BEEN GRANTED, NOT JUST MAKE AN ACCUSATION OR THROW SOME ISSUE OUT THERE. ANOTHER THING, AND THE TRIAL COURT SPECIFICALLY FOUND THIS IN ITS ORDER, HUFF'S TESTIMONY AT THE 1984 RETRIAL, WOULD, WAS IN DIRECT CONFLICT WITH ANY CLAIM THAT THEY HAD GONE TO A CONVENIENCE STORE OR WHEREVER IT WAS THIS WITNESS WAS. IT MAY HAVE BEEN A GAS STATION. I DON'T REMEMBER EXACTLY. BUT IT WAS SOMETHING OF THAT NATURE. WHERE THEY WERE ALLEGED TO HAVE GONE THERE AND GOT ENSOME DRINKS AND SOME SNACKS, AND SHE OBSERVED THIS OTHER PERSON IN THE CAR. SHE DID WITHDRAW THAT STATEMENT PRIOR TO THE '84 RETRIAL. BUT AT THE '84 TRIAL, HUFF TESTIFIED, AND HE DIDN'T IN THE PREVIOUS TRIAL PROCEEDING, BUT HE DID IN THE '84 ONE, AND HE SAID VERY CLEARLY AND SPECIFICALLY THAT, FROM THE POINT IN TIME WHEN HE WAS KIDNAPPED, ALONG WITH HIS PARENTS BY THIS ALLEGED FOURTH PERSON, THAT HE WAS MADE TO DRIVE DIRECTLY FROM THERE TO THE DUMP SITE WHERE HIS PARENTS WERE KILLED. HE CERTAINLY DIDN'T MAKE ANY MENTION OF GOING ANYWHERE ELSE, AND THE JUDGE NOTED THAT HE NEVER HAD, IN ANY OF THE PREARRESTS OR IN THE STATEMENTS THAT HE HAD GIVEN IN THE FIRST PROCEEDING, BACK IN 1980 ORB AT ANY POINT THEREAFTER. -- OR AT ANY POINT THEREAFTER. HIS TESTIMONY, AFTER ALL, WOULD HAVE REFUTED THIS SUPPOSED WITNESS, IF SHE HAD GOT UP AND SAID THAT THEY STOPPED BY THERE AND PURCHASED SNACKS FROM ME AND I SAW THIS OTHER PERSON. BUT SHE NEVER DID SAY THAT, UNDER OATH, IN AN ADVERSARIAL PROCEEDING. SHE MADE THAT CLAIM AT ONE POINT, BUT THEN SHE WITHDREW THAT CLAIM, SO THERE WAS NO NOTHING OFFERED HERE. THERE WAS NO AFFIDAVIT FROM HER THAT SAID THE STATE CAUSED ME TO WITHDRAW IT. THERE WAS JUST A BARE ALLEGATION, AND IT JUST ISN'T ENOUGH.

WELL, ARE YOU SAYING THAT IT IS CONCLUSIVELY REFUTED, BECAUSE MR. HUFF, IN HIS TESTIMONY, CONCLUSIVELY SHOWS THAT THAT COULDN'T BE TRUE, OR THAT YOU GOT TO SAY MORE IN YOUR MOTION THAN JUST A WITNESS RECANTED. THE WITNESS WAS INTIMIDATED IN ORDER THAT -- IS IT BOTH OF THE THINGS, OR IS IT MORE -- I THINK YOU ARE ON STRONGER GROUND WITH THE SEC TO SAY, WELL, IT IS -- WITH THE SECOND TO SAY, WELL, IT IS IMPOSSIBLE BECAUSE OF WHAT WAS TESTIFIED TO, BUT THERE MIGHT BE AN ARGUMENT, WELL, BUT MR. HUFF SAID THIS AT THIS TIME, AND THAT IS SOMETIMES WHY WE HAVE THE EVIDENTIARY HEARING, TO SORT OF FLUSH IT OUT AS TO EXACTLY WHAT IT IS, BECAUSE IT WAS NOT A REQUIREMENT THAT YOU, AFTER YOU HAVE PLED YOUR CLAIM, AS TO THE SPECIFICS, THAT YOU HAVE TO ATTACH AFFIDAVITS. CORRECT?

IT NOT A REQUIREMENT THAT YOU ATTACH AFFIDAVITS. BUT IT IS A REQUIREMENT THAT YOU SAY MORE THAN JUST THIS PERSON WAS FORCED, BY THE STATE, TO RECANT WHAT I THINK WOULD HAVE BEEN A FAVORABLE STATEMENT.

WHAT CASE SAYS THAT?

WELL, THE RULE. THE 3.850 RULE SAYS YOU HAVE TO PLEAD YOUR FACTS WITH SPECIFICITY THAT WOULD SPILTHS YOU TO PRE-- THAT WOULD ENTITLE YOU TO PREVAIL ON THE ISSUE, AND THEN, OF COURSE, WHEN YOU GET AN EVIDENTIARY HEARING, IF YOU DO THAT, AND THE FACTS ON THE FACE OF THE PLEADING, SEEM, IF PROVED, WOULD SEEM TO MERIT SOME RELIEF, THEN THE COURT GRANTS AN EVIDENTIARY HEARING, AND THEN YOU TRY TO PROVE THOSE FACTS TO THE SATISFACTION OF THE COURT.

LET'S SAY THAT THE ALLEGATION IS THE DEFENDANT'S DEFENSE ATTORNEY DIDN'T ADEQUATELY INVESTIGATE THE EXISTENCE OF OTHER WITNESSES, AND THE DEFENDANT HAS DISCOVERED WITNESSES, SPECIFICALLY A, B AND C, THAT COULD HAVE ESTABLISHED SOMETHING ELSE.

X, Y AND Z.

IS THAT ENOUGH?

THAT MAY BE ENOUGH, AS LONG AS I BELIEVE THIS COURT RECENTLY HELD, IN GASKIN, THAT YOU DON'T EVEN HAVE TO SPECIFICALLY IDENTIFY THE WITNESSES BY NAME, BUT YOU DO HAVE TO SPECIFY WHAT IT IS THEY WOULD HAVE SAID THAT WOULD HAVE CHANGED THE RESULT IN YOUR CASE. AND IN THIS SITUATION, I DON'T BELIEVE THEY HAVE DONE THAT, BUT MORE IMPORTANTLY, THE TRIAL JUDGE WENT ON TO THE ISSUE AND SAID HIS TESTIMONY AT THE TRIAL WOULD HAVE BEEN IN CONFLICT WITH THIS PERSON THAT HE SAYS, NOW, HE SHOULD HAVE BEEN ABLE TO PRESENT. HE TESTIFIED AT LENGTH, AT TRIAL, THE JUDGE NOTED IN HIS ORDER THAT MR. HUFF WAS ON THE STAND FOR ALMOST A FULL DAY, AND AT NO POINT DID HE EVER INDICATE THERE WAS ANY STOPPING OFF AT A CONVENIENCE STORE OR A GAS STATION, AND HE WAS, YOU KNOW, THAT PART OF HIS TESTIMONY WAS CERTAINLY GONE OVER AND OVER AND OVER MANY TIMES THROUGHOUT THE COURSE OF THAT DAY. AS FAR AS HIS CLAIM THAT HE SHOULD GET OR WHAT APPEARS TO BE A CLAIM THAT YOU SHOULD GET ANOTHER SHOT AT IT, JUST BECAUSE THE GUARD CHANGES OR A NEW ATTORNEY COMES INTO IT, THE STATE CERTAINLY WOULD DISAGREE WITH THAT. IN THESE CASES, ESPECIALLY ONE THAT HAS BEEN GOING ON FOR MANY, MANY YEARS, LIKE THIS ONE HAS, THE FACES OF THE ATTORNEYS ARE GOING TO CHANGE. AND WE CAN'T GO BACK AND START AT SQUARE ONE AGAIN, JUST BECAUSE SOMEONE ELSE COMES IN HERE. MR. HUFF HAD HIS OPPORTUNITY TO RAISE ALL OF HIS ISSUES IN HIS 3.850. IT WAS A LENGTHY DOCUMENT. A TON OF THEM WERE RAISED. AT THE HUFF HEARING THE JUDGE SAID TO YOU IS THERE ANYTHING ELSE YOU WANT TO SAID -- TO ADD, AND HE SAID NO, AND HE SAID SOME OF THESE LOOK LEGALLY INSUFFICIENT, AND THE RESPONSE WAS WE DON'T HAVE TO SAY MORE. WE ARE GOING TO STAND ON THAT, AND I THINK AT THAT POINT HE WAIVED ANY OPPORTUNITY TO FILE AN AMENDED OR AN ADDITIONAL 3.850 THAT WOULD BRING IN MORE SPECIFICITY, BECAUSE THE JUDGE PRETTY MUCH OFFERED HIM THAT OPPORTUNITY AT THE TIME. HE SAYS, NO, WE DON'T WANT IT. NOW, ANOTHER CLAIM THAT HE RAISED WAS THAT THE STATE HAD MADE A PLEA OFFER, AND THAT HIS ATTORNEYS DIDN'T COMMUNICATE IT TO HIM. NOW --

THAT WAS THE SUBJECT OF THE EVIDENTIARY HEARING, WASN'T IT?

THAT WAS THE SUBJECT OF THE EVIDENTIARY HEARING. HE CLAIMED THAT THE STATE DIDN'T, OR THAT HIS ATTORNEYS DIDN'T COMMUNICATE THE STATE OFFER TO HIM. HOWEVER, WHEN HE TESTIFIED, AND THIS IS HUFF, WHEN HUFF TESTIFIED AT THE EVIDENTIARY HEARING, HE CHANGED HIS CLAIM QUITE A BIT, AND IT WAS NO LONGER THAT THEY DIDN'T TELL ME ABOUT IT. IT WAS THEY TOLD MAE ABOUT IT. THEY JUST DIDN'T TELL ME WHAT YOU SHOULD DO. AND -- WHAT I SHOULD DO. AND THEN, OF COURSE, AT THE EVIDENTIARY HEARING, HE ADDED ANOTHER COMPONENT, WHICH WAS NOWHERE IN HIS MOTION, AND THAT WAS I DECIDED I DIDN'T WANT TO GO TO TRIAL AFTER ALL, AND ABOUT A WEEK BEFORE TRIAL, I TOLD MY ATTORNEYS MAKE AN OFFER TO THE STATE, AND THAT THEY DIDN'T MAKE THE OFFER. THE PROBLEM WITH THAT IS HE, ALSO, TESTIFIED THAT, AFTER HAVING HAD THAT CONVERSATION WITH HIS ATTORNEYS, THEY CAME BACK AND SAID WE DISCUSSED IT WITH THE JUDGE, AND THE JUDGE HAS INDICATED HE IS NOT GOING TO TAKE ANYTHING EXCEPT AS CHARGED. AND THERE WAS A LETTER TO THE JUDGE, IN THAT, TO THAT EFFECT, AND THE TRIAL COURT ATTACHED THAT, IN SUPPORT OF THE ORDER. IN THIS CASE. MR. BROWN, WHO WAS THE PROSECUTOR AT TRIAL, SPECIFICALLY TESTIFIED THAT HE ABSOLUTELY DID NOT MAKE ANY KIND OF AN OFFER TO HUFF. HE SAID THAT THE STATE WOULD NEVER, EVER, EVER HAVE CONSIDERED AN OFFER TO SECOND-DEGREE MURDER, WHICH IS WHAT THE ALLEGED OFFER FROM THE STATE WAS. THAT IS THE DEFENDANT'S EXHIBIT 4, WHICH IS ATTACHED TO THE DOCUMENTS IN THE CASE. IN ADDITION TO THAT, THE DEFENSE INVESTIGATOR, HIS NAME WAS BLONDELL, HE TESTIFIED THAT, ALTHOUGH THE DEFENSE WAS ALWAYS TALKING ABOUT TRYING TO GET SOME KIND OF AN OFFER GOING IN THIS CASE, THAT HE DIDN'T RECALL THAT THERE HAD EVER BEEN ANY OFFER FROM THE STATE, AND THE DEFENSE ATTORNEY, MARK HILL, TESTIFIED, THAT HE NEVER RECEIVED AN OFFER FROM THE STATE. DEFENSE EXHIBIT 4, HE SAID, WAS A PROPOSED OFFER TO BE MADE BY THE DEFENSE, WHICH HUFF REFUSED. IN OTHER WORDS HUFF'S ATTORNEYS WERE ALWAYS TRYING TO GET HIM, AS MR. HILL TESTIFIED, TO COME OFF OF HIS STUBBORN DESIRE TO HAVE THE DEATH PENALTY AND LET THEM DEAL WITH HIS CASE, AND THEY HAD WRITTEN UP THIS PROPOSAL AND SAID, WOULD YOU LET US PRESENT THIS? AND MR. HUFF SAID NO. I DON'T WANT TO TAKE ANY DEAL. WELL, ACTUALLY WHAT HE SAID WAS I WILL TAKE TIME SERVED. AND HE SAYS, THEN, THAT THEY TALKED ABOUT THIS FOR QUITE SOME TIME, AND EVENTUALLY MR. HILL RECOMMENDED THAT HE WRITE ON THERE, IN HIS HANDWRITING, THAT HE WOULD ACCEPT NO PLEA, AND THAT PERHAPS THEY COULD USE THAT TO GET THE STATE TO SEE HOW SERIOUS HE WAS, THAT HIS ONLY POSSIBILITY OF GETTING A TIME SERVED SENTENCE WOULD HAVE BEAN IF HE HAD A MANSLAUGHTER CHARGE, NOT A FIRST-DEGREE MURDER CHARGE, SO THAT IS THE CONTEXT IN WHICH THAT CAME FROM, AND THE TRIAL JUDGE IN THIS CASE, WHO IS THE ONE WHO HEARD THE EVIDENCE AND MADE THE SPECIFIC FINDING, THAT THE STATE DID NOT EXTEND A PLEA OFFER TO MR. HUFF, SO THEREFORE HE CANNOT POSSIBLY SHOW ANY KIND OF PREJUDICE IN ANY OTHER REGARD TO THIS OFFER.

WHAT WERE THESE DOCUMENTS THAT ATTORNEY HILL SAID THAT HE PREPARED TO COVER HIMSELF? WHAT WAS THE EXTENT OF THIS?

I BELIEVE, YOUR HONOR, THAT THAT WAS THAT DOCUMENT THAT IS ATTACHED AS EXHIBIT NO. 4. IT IS THE ONE WHERE THE ATTORNEYS HAD BEEN TRYING TO GET HIM TO COME OFF HIS STUBBORN DESIRE FOR THE DEATH PENALTY, AND THEY HAD BEEN SAYING GIVE US SOMETHING THAT WE CAN OFFER TO THE STATE AND TRY TO GET A DEAL GOING HERE FOR YOU, AND HE DIDN'T. HE ADAMANTLY REFUSED, BECAUSE HE WANTED THE DEATH PENALTY. IT WAS HIS STRATEGY TO GET THE DEATH PENALTY. HE HAD BEEN UP TO THIS COURT BEFORE, AFTER IT WAS IMPOSED IN 1980. THIS COURT GAVE HIM RELIEF. HE THOUGHT THAT IS WHERE HE WANTED TO GO, AGAIN, IF HE WAS CONVICTED.

BUT THE DOCUMENT WOULD SUPPORT HUFF'S POSITION THAT HE HAD BEEN OFFERED A PLEA AND SO FORTH, AND IT HAD NOT BEEN PASSED ON TO HIM, AND ISN'T IT RATHER ODD THAT DEFENSE LAWYER WOULD SAY, WELL, I PREPARED THESE DOCUMENTS THAT WOULD SUPPORT HIM, BUT I JUST PREPARED THEM TO, IN HIS WORDS, COVER MY TAIL?

THE COVERING --

ISN'T THAT RATHER ODD?

I DON'T THINK IT IS IN THIS CASE, YOUR HONOR. THE COVERING HE IS TALKING ABOUT IS THERE WAS TESTIMONY ALL THROUGHOUT THE EVIDENTIARY HEARING THAT THE ATTORNEY, MR. HILL, HAD TRIED TO GET SOMETHING GOING IN THIS CASE. HE KNEW THAT THE EVIDENCE AGAINST HUFF WAS DEVASTATING. AND HE WANTED TO GET SOME KIND OF A PLEA GOING HERE. SO HE WAS ALWAYS TALKING IT UP TO THE STATE, TRYING TO FIND OUT IF THERE WOULD BE ANY INTEREST, AND THEN HE WAS TALKING IT UP TO HUFF, TRYING TO GET HIM TO COME OFF THIS DESIRE TO JUST GET THE DEATH PENALTY, AND LET HIM TRY TO MAKE A DEAL, AND IN THE END, I THINK, MR. HILL PRETTY MUCH TESTIFIED THAT HE NEEDED TO WRITE THAT UP TO, SO THAT THERE WOULD BE SOME RECORD THAT HE TRIED TO DO SOMETHING FOR THIS MAN, TO GET HIM SOMETHING LESS THAN DEATH IN THIS CASE. AND THAT HE HAD MADE HIS EFFORTS TO DO THAT, AND THAT IS WHAT THIS DOCUMENT WAS. HE TESTIFIED THAT IT WAS SOMETHING HE PREPARED, TRYING TO, IN THE HOPES OF GETTING MR. HUFF TO SAY, YES, I WILL DEFINITELY DEAL HERE, IF YOU CAN GO TO THE STATE AND GET IT FOR ME, AND MR. HUFF REFUSED IT.

WAS THERE ANY TESTIMONY RELATIVE TO, DID I UNDERSTAND FROM THE RECORD, THE BRIEF, RATHER, THAT ONE OF THE PROSECUTORS SAID THAT IT WAS HIS RECALL THAT SOME KIND OF OFFER WAS MADE?

THE SECOND CHAIR, AS HE STYLED HIMSELF, PROSECUTOR, MR. FISTER, WAS PRESENTED AT THE EVIDENTIARY HEARING, AND HE SAID THAT HIS RECOLLECTION, WHILE NOT BEING TERRIBLY CLEAR, WITH THE PASSAGE OF TIME, WAS THAT THERE WAS SOME VAGUE REFERENCE TO THERE HAVING BEEN AN OFFER FOR SOMETHING LESS THAN DEATH. AND ON CROSS-EXAMINATION, IT WAS BROUGHT OUT THAT HE COULDN'T SAY FOR SURE THAT THAT DID NOT HAVE TO DO WITH THE ORIGINAL TRIAL PROCEEDING, IN 1980. THE PROSECUTOR, THEN, TESTIFIED, MR. BROWN, THAT THERE MAY HAVE BEEN AN OFFER CONTEMPLATED IN 1980, BEFORE THE FIRST TRIAL, BUT THAT THERE ABSOLUTELY, DEFINITELY WAS NOT ONE IN 1984. WHICH IS THE RETRIAL PROCEEDING. THE TRIAL JUDGE FOUND THAT, HAD THERE BEEN AN OFFER, HUFF WOULD HAVE REJECTED IT, AND, OF COURSE, HE FOUND THAT, BASED ON A LOT OF THE TESTIMONY THAT HUFF WAS ADAMANT ABOUT HE WANTED TO HAVE THE DEATH PENALTY, SO THAT HE COULD GET A DIRECT APPEAL HERE TO THIS COURT. ALSO THE FACT THAT HIS ATTORNEYS HAD TRIED TO GIVE HIM SOMETHING TO GO TO THE STATE AND DEAL WITH AND HE FLAT-OUT REJECTED IT AND SAID, WELL, I WILL JUST TAKE TIME SERVED AS THE BEST THAT YOU CAN DO. SO THERE WAS PLENTY OF EVIDENCE TO SUPPORT THAT FINDING, AS WELL. THE TRIAL COURT SAID THAT THERE WAS NO EVIDENCE THAT THE TRIAL COUNSEL FAILED TO SUBMIT ANY PROPOSED OFFERS TO HUFF FROM THE STATE, AND WE HAVE GONE OVER SOME OF THE EVIDENCE THAT WOULD HAVE SUPPORTED THE TRIAL COURT'S DECISION THAT CAME OUT OF THE EVIDENTIARY HEARING IN THAT CASE. THERE WAS NO EVIDENCE, ALSO, THE TRIAL COURT FOUND, THE STATE WOULD HAVE BEEN INTERESTED IN SUCH AN OFFER. AGAIN MR. BROWN TESTIFIED THAT ABSOLUTELY NOT WOULD THEY EVER, EVER HAVE CONSIDERED ANY KIND OF A PLEA TO SECOND-DEGREE MURDER OR NO CONTEST PLEA RATHER THAN A GUILTY PLEA AND THINGS OF THAT NATURE. AND, THEN, FURTHER, THE TRIAL JUDGE FOUND THAT THE TRIAL JUDGE, AT THE 1984 PROCEEDING, WOULD NOT HAVE ACCEPTED SUCH AN OFFER TO A SECOND, TO PLEAD A SECOND-DEGREE, EVEN IF IT HAD BEEN MADE.

BUT THERE IS SOME SUPPORT, FROM BOTH THE TRIAL LAWYERS AND THE STATE THAT SOME KIND OF NEGOTIATIONS TOOK PLACE, AND THERE IS THE PROBABILITY THAT THERE WAS SOME KIND OF OFFER. SO IS IT A SITUATION IN WHICH THE COURT HAD TO EVALUATE THE TESTIMONY OF THE WITNESSES AND COME TO A CONCLUSION, OR IS IT THE STATE'S POSITION THAT THERE WAS NO EVIDENCE SUPPORTING THE OFFER OF A PLEA?

WELL, IF THERE WAS ANY EVIDENCE, IT WAS VERY SCANT. IT CONSISTED OF WHAT HUFF HAD TO SAY, WHICH WAS I DON'T REALLY KNOW IF THERE WAS AN OFFER. I JUST KNOW THAT MY ATTORNEYS TOLD ME THERE WAS AN OFFER. AND THEN THERE WAS MR. FISTTER, WHO TESTIFIED TO SOME VAGUE RECOLLECTION THAT, AT SOME POINT IN TIME HE HEARD THAT THERE HAD BEEN SOMETHING OFFERED LESS THAN DEATH, BUT HE COULDN'T REMEMBER, COULDN'T SAY WITH CERTAINTY WHETHER THAT WAS THE 1980 TRIAL OR WHETHER THAT WAS THE '84. THAT IS ABSOLUTELY ALL THERE WAS TO HAVE SUPPORTED ANY KIND OF DETERMINATION THAT THERE WAS A PLEA OFFER. AND, OF COURSE, THERE WAS THE VERY STRONG EVIDENCE TO THE CONTRARY, SO, TO THE EXTENT THAT THE EVIDENCE OF HUFF'S TESTIMONY, MR. FISTTER'S TESTIMONY, MIGHT BE REGARDED AS EVIDENCE THAT THERE WAS A PLEA OFFER, THEN IT WAS A CREDIBILITY DETERMINATION TO BE MADE. THERE WAS A A LOT OF EVIDENCE TO THE CONTRARY THAT WAS -- THERE WAS A LOT OF EVIDENCE TO THE CONTRARY THAT WAS PRESENTED AT THE HEARING. THE TRIAL COURT JUDGE WEIGHED AND CONSIDERED ALL OF THAT, AND HIS FINDING OF FACT WAS THAT THE STATE DIDN'T MAKE A PLEA OFFER, AND THE STATE'S POSITION IN THIS PROCEEDING IS THAT, SINCE IT IS SUPPORTED, THE TRIAL JUDGE'S FINDING IS SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE, IT SHOULD BE AFFIRMED BY THIS COURT, AND THAT MR. HUFF IS ENTITLED TO NO RELIEF. IF THERE ARE NO FURTHER QUESTIONS, THE STATE WILL RELY ON ITS BRIEF.

THANK YOU, MS. RUSH. THANK YOU, MR. VOLLRATH. I BELIEVE LEAVE ALL OF YOUR TIME HAS -- I BELIEVE ALL OF YOUR TIME HAS BEEN USED. BEFORE THE NEXT CASE IS CALLED,