NEXT CASE ON THE COURT'S CALENDAR IS MICHAEL GEORGE BRUNO SR. VERSUS THE STATE OF FLORIDA. MR. SCHER.

MAY IT PLEASE THE COURT. GOOD MORNING. MY NAME IS TODD SCHER, CAPITOL COURT SOUTHERN COUNSEL, ON BEHALF OF MR. BRUNO. THIS CASE IS BEFORE THE COURT FROM AN APPEAL OF A DENIAL OF RULE 3.850 MOTION, FOLLOWING AN EVIDENTIARY HEARING. THE FIRST AREA THAT I WANT TO COVER, I AM ACTUALLY GOING TO BE DISCUSSING TWO ISSUES THAT ARE CONTAINED IN THE BRIEF. THOSE RELATED TO INEFFECTIVE ASSISTANCE OF COUNSEL, REGARDING TRIAL COUNSEL'S BREACH OF CONFIDENTIALITY AND DUTY OF LOYALTY, AND, ALSO, THE FAILURE TO PROPERLY PRESENT AND INVESTIGATE THE MITIGATION IN THE PENALTY PHASE.

MR. SCHER, WHAT WAS THE MOTIVE FOR THIS MURDER? WAS THAT EVER ESTABLISHED?

NO, IT WAS NOT, YOUR HONOR. CLEARLY IT REALLY NEVER WAS A MOTIVE. WHAT WAS ESTABLISHED, AT THE TIME TRIAL, WAS THAT -- AT THE TRIAL, WAS THAT THE ONLY INTENT THAT MR. BRUNO WOULD HAVE HAD, AND THIS WAS ACCORDING TO HIS OWN STATEMENTS, WAS TO GET SOME MONEY FROM THE VICTIM, WHICH WAS OWED TO HIM THROUGH SOME PRIOR DRUG TRANSACTIONS THAT THEY HAD HAD, SO THERE WAS CLEARLY NEVER ANY, CERTAINLY FROM MY PERSPECTIVE, ANY EVIDENCE THAT HE HAD INTENDED TO GO THERE TO KILL HIM.

WHAT WAS THE DEFENSE'S MAIN DEFENSE STRATEGY AT TRIAL?

THE DEFENSE'S MAIN TACTIC WAS THAT THERE WAS INSUFFICIENT EVIDENCE, REASONABLE DOUBT AS TO MR. BRUNO HAVING COMMITTED THE CRIME, AND AN ALTERNATIVE THEORY WAS THAT SOMEBODY ELSE BY THE NAME OF JODIE SPAULDING, WHO WAS A FRIEND OF MR. BRUNO'S, AN ASSOCIATE OF HIS, COULD HAVE COMMITTED THE MURDER. THERE WAS, ALSO, AN IMPLICATION THAT MR. BRUNO'S SON, WHO TESTIFIED THAT HE HAD WITNESSED WHAT HAD HAPPENED IN THE APARTMENT, WAS, ALSO, SOMEHOW INVOLVED, SO THERE WAS REALLY A MISHMASH OF VARIOUS THEORIES GOING ON. ONE OF WHICH WAS REASONABLE DOUBT AND THAT JODIE SPALDING HAD COMMITTED THE CRIME.

CAN WE GET ONE MATTER OUT OF THE WAY, BEFORE WE PROCEED? DO YOU AGREE THAT THERE IS CSE TO SUPPORT THE JUDGE'S FINDING THAT MR. STELLAR WAS NOT UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AT THAT TIME?

AS TO THAT AREA, THERE WERE TWO ISSUES I WANTED TO TALK ABOUT. ONE WAS WHETHER HE WAS UNDER THE INFLUENCE OF COCAINE OR ALCOHOL AT THE TIME OF THE TRIAL. BUT A SEPARATE EQUALLY OR MORE IMPORTANT ISSUE, FROM MY PERSPECTIVE, IS WHERE WERE HIS ATTENTIONS FOCUSED DURING THE CRITICAL PORTION OF THE INVESTIGATION OF THE CASE. MR. STELLA WAS RETAINED TO REPRESENT MR. BRUNO IN AUGUST OF 1986. BY HIS OWN TESTIMONY, FOR WHICH HE HAD TO GET IMMUNITY FROM THE STATE ATTORNEY'S OFFICE, HE WAS ACTIVELY ABUSING ALCOHOL AND COCAINE, FROM THAT POINT UNTIL HE WENT TO, I THINK, IT WAS AA IN OCTOBER OF 1986. HE HAD A RELAPSE AT THE END OF FEBRUARY, THE BEGINNING OF MARCH OF THE FOLLOWING YEAR, WHICH RESULTED IN HIS BEING -- ADMITTING HIMSELF INTO A REHABILITATION HOSPITAL IN MIDMARCH.

I UNDERSTAND THAT, BUT THE JUDGE MADE A DEAFTIVE FINDING THAT HE WAS -- A DEFINITIVE FINDING THAT HE WAS NOT UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AT THE TIME. HE WAS TRYING THE CASE, AND I GUESS YOU WOULD AGREE THAT THE STANDARD IS WHETHER THERE IS CSE TO SUPPORT THAT FINDING.

AT THAT PARTICULAR POINT IN TIME OF THE REPRESENTATION, YES. I DO NEED TO POINT OUT THAT CERTAINLY THAT FINDING IS BASED ON MR. STELLA'S TESTIMONY AND NOTHING ELSE, AND SO TO THE EXTENT THAT THE TRIAL JUDGE BELIEVED MR. STELLA, WHEN HE SAID THAT, THEN THAT EVIDENCE STANDS, BUT I WOULD SUBMIT THAT THAT IS TRULY THE POINT THAT I WANT TO MAKE HERE, IS IN TERMS OF THE PRETRIAL PREPARATION THAT WENT INTO THIS CASE, BECAUSE THAT IS WHERE THE PROCESS BROKE DOWN ON A NUMBER OF LEVELS, AND IN TERMS OF THE STANDARD OF REVIEW, I THINK IT IS IMPORTANT TO REITERATE THAT, AS THE COURT POINTED OUT IN STEPHENS LATE LAST YEAR, THAT THIS COURT'S OBLIGATION IS FOR INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS, IS DE NOVO REVIEW. YES, IT OWES DEFERENCE TO FACTUAL FINDINGS MADE BY THE LOWER COURT, IF THOSE FACTUAL FINDINGS ARE SUPPORTED BY COMPETENT AND SUBSTANTIAL EVIDENCE. HOWEVER, AS TO THE LEGAL QUESTIONS OF DEFICIENT PERFORMANCE IN QUESTION, CLEARLY THAT IS SOMETHING WHICH THIS COURT REVIEWS AND EVALUATES ON A DE NOVO BASIS.

THAT DOESN'T UNDERMINE WHETHER COUNSEL WAS INCOMPETENT. YOU STILL HAVE THAT TO ARGUE, BUT I JUST WANTED TO GET THAT OUT OF THE WAY.

WELL, I THINK IT IS IMPORTANT. ONE THING THAT JUDGE SHAPIRO DID NOT DO, IN EVALUATING MR. BRUNO'S MOTION, WAS CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING TRIAL COUNSEL'S PERSONAL PROBLEMS. TRIAL COUNSEL, ALSO, SPENT MOST OF THE MONTH OF JANUARY OF 1987 TRYING A FEDERAL CASE. THIS WAS, AT THAT POINT, ONLY TWO MONTHS BEFORE MR. BRUNO WAS SET TO GO TO TRIAL, SO PART OF WHAT THE ANALYSIS HAS TO ENTAIL, OBVIOUSLY, IS WHAT COUNSEL WAS DOING AND WHAT HE WAS NOT DOING, VIS-A-VIS THE INVESTIGATION INTO MR. BRUNO'S CASE.

WHAT DOES THE RECORD TELL US ABOUT COUNSEL'S VISITS WITH DR. STILL MAN? WHAT HE KNEW? IN OTHER WORDS THAT RELATIONSHIP.

PART OF THE RECORD WAS THAT WHEN I WOULD ASK MR. STILLMAN QUESTIONS ON DIRECTION, HE PROVEESED A LACK OF RECOLLECTION, BUT WHEN HE WAS ASKED LEADING QUESTIONS ON CROSS-EXAMINATION, HE WAS ABLE TO RECALL SOME ANSWERS TO QUESTIONS THAT HE DIDN'T RECALL THE DAY BEFORE, ON DIRECTION. VIS-A-VIS DOCTOR STILLMAN, IN THIS CASE, WHAT ORIGINALLY HAPPENED -- LET ME START OFF THAT DR. STILLMAN WAS APPOINTED TO EVALUATE FOR COMPETENCY AND SANITY, BY THE JUDGE. THAT DIDN'T TAKE PLACE FOR QUITE SOME TIME. IT EVENTUALLY DID TAKE PLACE. DR. STILLMAN WAS CALLED AT THE PENALTY PHASE AND WASN'T ASKED ABOUT MITIGATING FACTORS, NEVER ASKED WHETHER THEY APPLIED, NEVER ASKED ABOUT THE IN APPLICABILITY OF AGGRAVATING CIRCUMSTANCES. HE BASICALLY WENT THROUGH SOME MATTERS THAT HE HAD TALKED ABOUT WITH MR. BRUNO, WITH RELATION TO HIS EVALUATION, TOUCHED A BIT ON MR. BRUNO'S DRUG HISTORY. ON CREATION, IT WAS BROUGHT OUT, THROUGH THE STATE, THAT DR. STILLMAN THOUGHT THAT MR. BRUNO WAS ACTUALLY INSANE AT THE TIME OF THE CRIME.

THAT IS WHAT I AM ASKING YOU TO GO BACK, THOUGH, BEFORE HIS ACTUAL TESTIMONY, AND WHAT DOES THE RECORD TELL US ABOUT THE CONTACTS BETWEEN THE LAWYER AND DR. STILLMAN? IN OTHER WORDS DID THE LAWYER TESTIFY, WELL, I MET WITH DR. STILLMAN 18 TIMES, AND I ASKED DR. STILLMAN TO INVESTIGATE MITIGATION, STATUTORY AND NONSTATUTORY? OR I DID THIS OR I DID THAT OR THAT I DIDN'T DO THIS OR I DIDN'T DO THAT OR I GOT THIS REPORT FROM DR. STILLMAN OR WHAT DOES THE RECORD SHOW US?

IN TERMS OF MITIGATION, COUNSEL SPECIFICLY DID NOT HAVE ANY RECLATION OF DISCUSSING THE PENALTY PHASE WITH DR. STILLMAN, AS WELL AS VOLUNTARY INTOXICATION ISSUES. WHAT THE RECORD DOES REFLECT, AS I INDICATED EARLIER, AT A POINT THERE WAS A PERIOD OF SEVERAL MONTHS WHERE THE EVALUATION NEVER DID TAKE PLACE. WHAT WE, THEN, KNOW, IS AT THE PENALTY PHASE, WHEN DR. STILLMAN TESTIFIED THAT MR. BRUNO WAS INSANE, TRIAL COUNSEL AND THE PROSECUTOR WENT SIDE BAR WITH THE JUDGE, WHERE THE TRIAL ATTORNEY PROCEEDED TO DIVULGE THAT HE NEVER KNEW THAT DR. STILLMAN WAS GOING TO SAY THAT MR. BRUNO WAS INSANE.

I REALIZE THAT IS AN IMPORTANT PART, BUT I AM STILL NOT SATISFIED WITH YOUR GIVING ME A SUMMARY OF WHAT THE RECORD TELLS US ABOUT THE CONTACTS BETWEEN THE LAWYER AND DR. STILLMAN. DOES THE RECORD TELL US ANYTHING? THAT THEY MET ONCE?

THE RECORD, ALSO, SHOWS THAT THE ONLY CONTACT THAT WE KNOW OF, BESIDES -- DURING THE SIDE BAR, MR. STELLA INDICATES THAT HE HAD TALKED TO DR. STILLMAN ON A NUMBER OF INDICATIONS IN PREVIOUS MONTHS, REGARDING THE INSANITY AND THE COMPETENCY ISSUE. THEN THERE WAS ANOTHER CONTACT, APPARENTLY, SOME 48 HOURS BEFORE THE PENALTY PHASE WAS SET TO BEGIN. THAT WAS WHAT LED DR. STILLMAN TO, AT THE LAST MINUTE, TRY TO RUSH AROUND AND TRY TO FIND SOME CORROBORATING EVIDENCE, IN ORDER TO BE ABLE TO PRESENT AT THE PENALTY PHASE. NOW, IT IS CLEAR THAT DR. STILLMAN AND MR. STELLA NEVER SPOKE BEFORE THE PENALTY PHASE, BECAUSE WE HAVE MR. STELLA SAYING HE DIDN'T EVEN KNOW THAT DR. STILLMAN WAS GOING TO TESTIFY THAT MR. BRUNO WAS INSANE, AND SO WHATEVER CONTACTS THERE WERE, WERE EXTREMELY LIMITED AT BEST.

AND I TAKE IT STELLA DIDN'T GIVE ANY DETAILED TESTIMONY ABOUT THOSE CONTACTS.

NO. BECAUSE HE DIDN'T REMEMBER. HE, ALSO, DIDN'T HAVE HIS FILES.

DID HE HIRE AN INVESTIGATOR IN THIS CASE?

HE HIRED AN INVESTIGATOR, IS SIDNEY PATRICK. WHAT IS INTERESTING ABOUT --

DID THE INVESTIGATOR TESTIFY?

THE INVESTIGATOR WAS CALLED BY THE STATE, AT THE EVIDENTIARY HEARING, PARTICULARLY AS TO THE PENALTY PHASE, MR. STELLA, AT THE EVIDENTIARY HEARING, HAD TESTIFIED, AND THIS IS THE PARTICULAR QUESTION, ISN'T IT A FACT YOU, ALSO, INSTRUCTED YOUR PRIVATE INVESTIGATOR, SIDNEY PATRICK, TO DO A BACKGROUND CHECK ON MICHAEL BRUNO? ANSWER: YES. SIDNEY PATRICK, HOWEVER, BECAUSE ASKED, MR. PATRICK, DID YOU WORK ON THE PENALTY PHASE AT ALL? ANSWER: NO, I DID NOT. SO THERE WAS OBVIOUSLY A BREAKDOWN, IN TERMS OF WHO, EXACTLY, WAS PREPARING FOR THE PENALTY PHASE. MR. STELLA DID ASK JUDGE -- THE TRIAL JUDGE. I CAN'T REMEMBER HIS NAME, OFF THE TOP OF MY HEAD, AT THIS POINT, TRIAL JUDGE FOR CONTINUANCE. THAT ISSUE WAS RERAISED ON A MOTION FOR NEW TRIAL, AND AT THAT POINT THE TRIAL JUDGE, JUDGE COKER, SAID IT IS NO BIG SURPRISE TO YOU THAT THE PENALTY PHASE WAS GOING TO START RIGHT AFTER THE GUILT PHASE, AND SO YOU SHOULD HAVE BEEN ON NOTICE WELL BEFOREHAND THAT YOU NEEDED TO PREPARE FOR A PHASE II IN THIS CASE.

WHAT PREPARATION DID STELLA TESTIFY THAT HE DID FOR THE PENALTY PHASE?

VERY LITTLE. HE TESTIFIED, OBVIOUSLY, AT THE LAST MINUTE HE ARRANGED FOR DR. STILLMAN TO COME IN. OTHER THAN THAT, THE RECORD IS PRETTY VACANT AS TO EXACTLY WHAT HE DID, BECAUSE HE THOUGHT THAT THE PRIVATE INVESTIGATOR HAD HE HAD HIRED WAS RESPONSIBLE FOR THAT. WHENEVER HE WAS QUESTIONED BY THE PREPARATIONS FOR THE EVIDENTIARY HEARING, DID YOU GET SCHOOL RECORDS, DID YOU GET MEDICAL RECORDS, DID YOU TALK TO FAMILY RECORDS, HIS ANSWER WAS, WELL, NO, MR. PATRICK WAS EXCLUSIVELY AND HEAVILY INVOLVED IN THAT AREA.

WAS HE AN ATTORNEY?

NO.

SO WE HAVE THE PENALTY TAIS -- PHASE STARTING LITERALLY IMMEDIATELY AFTER? ANOTHER FOLLOWING DAY. THE TRIAL LASTED, I BELIEVE IT WAS, THREE DAYS. THE JURY WOWS WAS OUT 26 -- THE JURY WAS OUT 26 HOURS DELIBERATING ABOUT THE GUILT PHASE, AND THE PENALTY PHASE WAS THE FOLLOWING DAY.

WHAT WAS MR. STILL MAN'S-HE WHAT WAS MR. STILLMAN'S EXPERIENCE REGARDING THE PENALTY PHASE?

HE WAS PRIVATELY RETAINED.

IF THE INVESTIGATOR WAS HIRED TO INVESTIGATE FOR THE PENALTY PHASE, DETESTIFY THAT HE MET WITH THE VEST -- DID HE TESTIFY THAT HE MET WITH THE INVESTIGATOR AND GOT ALL OF THE INFORMATION PRIOR TO THE PENALTY PHASE?

NO. HE NEVER TESTIFIED TO THAT.

WHEN DID HE GETS THE INFORMATION FOR THE PENALTY PHASE, SINCE HE WAS HIRED TO DO THAT? ANOTHER INVESTIGATOR SAID HE WASN'T HIRED TO DO ANYTHING FOR THE PENALTY PHASE. WE HAVE GOT THE INVESTIGATOR POINTING THE FINGER AT THE ATTORNEY AND THE ATTORNEY POINTING THE FINGER AT THE INVESTIGATOR. WHAT WE HAVE GOT IS IT FELL THROUGH THE CRACKS. WE HAVE GOT DR. STILLMAN TESTIFIED ABOUT MR. BRUNO HAVING A SISTER. I DIDN'T EVEN KNOW MR. BRUNO HAD A SISTER. I CANNOT UNDERSTAND WHY AN ATTORNEY WOULD NOT KNOW AT LEAST WHO THE SIBLINGS WERE OF HIS CLIENT FACING THE DEATH PENALTY.

WHAT IS THE MOST GLARING THING THAT MR. STELLA DID NOT KNOW THAT WOULD BE MATERIAL TO THE PENALTY PHASE? WHAT -- WHETHER HE DIDN'T PURSUE THIS DEFENSE OR THAT, BUT WHAT FACTUAL INFORMATION WOULD BE SO COMPELLING THAT HE WAS UNAWARE OF?

WELL, THERE ARE SEVERAL ANSWERS TO. THAT ONE IS, CERTAINLY, WHAT THE OPINION WAS OF HIS EXPERT, HE DID NOT KNOW AND SHOULD HAVE CLEARLY KNOWN THAT HIS EXPERT WAS GOING TO SAY HIS CLIENT WAS INSANE.

THAT WOULD HAVE GONE TO THE GUILT PHASE.

AND PART TWO WAS THE PAST PSYCHIATRIC HOSPITALIZATIONS THAT MR. BRUNO HAD, WHICH HIS FAMILY KNEW ABOUT, BUT WHICH MR. STELLA OR THE INVESTIGATOR, WHOEVER WAS DOING THIS CASE, DIDN'T KNOW ABOUT.

WHEN WERE THOSE HOSPITALIZATIONS, IN RELATIONSHIP TO THIS MURDER?

MANY YEARS BEFORE. I WOULD SAY PROBABLY TEN, FIFTEEN YEARS.

DID HE SAY HE ASKED THE FAMILY ABOUT THE MENTAL HEALTH HISTORY?

AGAIN, MR. STELLA HAD LOTS OF EXPLANATIONS FOR WHAT HE DID. HE INDICATED THAT, AT ONE POINT DURING HIS TESTIMONY, HE SAID THE FAMILY WAS VERY COOPERATIVE WITH ME. MR. BRUNO WAS VERY COOPERATIVE WITH ME. HOWEVER, WHEN IT CAME TO THE SPECIFIC QUESTION ABOUT THIS, HE SAID NOBODY DISCLOSED IT.

DID HE SAY THAT HE ASKED?

THAT I DON'T RECALL. I DON'T BELIEVE HE ASKED. NO.

FOR A MENTAL HEALTH HISTORY.

CORRECT. BUT DR. STILLMAN CLEARLY --

WHEN THIS TRIAL OCCURRED IN 1987?

YES.

AND WHEN ARE YOU TALKING ABOUT, NOW, THAT STELLA WAS BEING QUESTIONED, AS TO WHAT HIS RECOLLECTION THAT HAPPENED BACK IN 1986?

DURING THE EVIDENTIARY HEARING, IN 1997, I BELIEVE IT WAS.

SO TEN YEARS LATER.

CORRECT. CORRECT. ALTHOUGH ON THAT POINT, MR. STELLA, ON CREATION, SUDDENLY HAD SOME REVELATIONS ABOUT SOME STRATEGIES, WHEN HE WAS QUESTIONED BY THE STATE, AND AT ONE POINT SAID, LOOK, SAID TO THE STATE ATTORNEY, LOOK, I AM NOT GOING TO PLAY THIS GAME THAT, WHEN MR. SCHER ASKS ME, I DON'T REMEMBER, BUT WHEN YOU ASK ME, MISS BAILEY, I DO REMEMBER. CLEARLY, AND WHAT IS IMPORTANT TO KEEP IN CONTEXT, IS THAT THIS IS AN ATTORNEY WHO, AT THE TRIAL, REGARDING DR. STILLMAN, WAS SO CONCERNED ABOUT BEING PERCEIVED AS INEFFECTIVE, THAT HE WENT AND DIVULGED VERY DAMAGING INFORMATION ABOUT THE CREDIBILITY OF HIS SOLE MENTAL HEALTH EXPERT TO THE SENTENCER, AND SO ALL OF THAT NEEDS TO BE EVALUATED, IN TERMS OF THE OVERALL TESTIMONY IN THE CASE, WHICH IS SOMETHING THAT --

WAS DR. STILLMAN HIRED TO DO MITIGATION EVALUATION?

NO. DR. STILLMAN WAS APPOINTED SOLELY FOR THE PURPOSE OF COMPETENCY AND SANITY. WAS NEVER -- WAS NEVER -- MR. STELLA --

WAS A MENTAL HEALTH EXPERT HIRED, TO EVALUATE THE MENTAL MITIGATION?

NO. NO. WHAT CLEARLY HAPPENED IS THAT, BECAUSE DR. STILLMAN WAS INVOLVED IN THE CASE, MR. STELLA JUST SORT OF KEPT HIM ON, BUT HE WAS NEVER ASKED TO EVALUATE SPECIFICALLY FOR MENTAL HEALTH MITIGATION AND WAS NEVER ASKED WHETHER THE MENTAL HEALTH MITIGATORS APPLY. SO IT WAS ONLY ON CROSS-EXAMINATION, WHEN THE ISSUE OF THE SANITY, INSANITY STUFF CAME OUT.

JUSTICE QUINCE --

MR. SCHER.

YES.

DID DR. STILLMAN TESTIFY AT ALL, DURING THE GUILT PHASE OF THE TRIAL? NO, HE DID NOT. THERE WERE NO WITNESSES PRESENTED.

BUT HE WAS, IN FACT, HIRED TO DETERMINE COMPETENCY AND TO DETERMINE SANITY?

YES.

PRIVATELY HIRED?

NO. HE WAS AND POINTED BY THE -- HE WAS APPOINTED BY THE COURT. MR. BRUNO WENT INDIGENT FOR COSTS, SO IN HIS ORIGINAL MOTION, HE NAMED THREE PEOPLE FOR A COMPETENCY EVALUATION, AND THE JUDGE SELECTED DR. STILLMAN OF THE NAMES.

DO WE HAVE A COMPETENCY REPORT FROM HIM?

NO. THERE WERE NEVER ANY REPORTS. THAT, ALSO, CAME UP AT THE SIDE BAR DURING THE PENALTY PHASE. APPARENTLY THERE WERE SEVERAL -- MR. STELLA, IN ORDER TO DEFEND HIMSELF, REFERRED TO SEVERAL LETTERS BETWEEN DR. STILLMAN AND HIMSELF, REGARDING THE PROGRESS OF DR. STILLMAN'S EVALUATIONS IN THE CASE. AT THAT POINT MR. STELLA DID NOT PUT THEM IN THE RECORD, BECAUSE HE BELIEVED THEY WERE CONFIDENTIAL, ALTHOUGH HE DID DISCLOSE THE NATURE OF THEM, TO THE JUDGE AND TO THE PROSECUTOR. THOSE LETTERS WERE EVENTUALLY IN HIS FILE, WHICH WERE LATER DESTROYED, SO THEY --

IN THIS EVIDENTIARY HEARING, DO WE HAVE ANY MENTAL HEALTH EXPERT WHO, IN FACT, SAYS THAT MR. BRUNO WAS INCOMPETENT?

INCOMPETENT?

NO. THAT WAS NEVER ONE OF THE ISSUES. WE DO HAVE TWO MENTAL HEALTH EXPERTS, HOWEVER, WHO TESTIFIED THAT MR. BRUNO MET THE CRITERIA FOR THE STATUTORY MENTAL HEALTH MITIGATORS, WHO DISCUSSED MR. BRUNO'S LONG, EXTENSIVE HISTORY OF DRUG ABUSE, PHYSICAL ABUSE, BACKGROUND MITIGATION, THAT WAS NOT FULLY PRESENTED TO THE JURY.

MY FINAL QUESTION, IS YOUR ARGUMENT HERE, TODAY, CONCERNING THE MENTAL HEALTH MITIGATORS AND NOT THAT HE WAS INCOMPETENT TO STAND TRIAL OR THAT HE WAS INSANE?

THAT IS CORRECT. THAT'S CORRECT. WE HAVE NOT RAISE ADD COMPETENCY ISSUE.

WHAT GAVE RISE TO DR. STILLMAN'S APPOINTMENT,, TO BEGIN WITH?

WELL, ACCORDING TO TRIAL COUNSEL'S TESTIMONY AND TO THE MOTION THAT HE FILED, HE DID HAVE CONCERNS ABOUT MR. BRUNO'S COMPETENCY, BASED ON SOME DISCUSSIONS HE HAD HAD WITH HIM, AND SO HE DID REQUEST THE APPOINTMENT OF AN EXPERT TO EVALUATE COMPETENCY, AND THAT LED TO A SERIES OF THOSE SORTS EVER MOTIONS BEING FILED. MR. STELLA FILED ONE FOLLOWING THE PENALTY PHASE. ASKING FOR YET ANOTHER PSYCHIATRIC EVALUATION, BASED ON THE FACT THAT DR. STILLMAN NOW SAYS THAT MR. BRUNO WAS INSANE, SO I THINK WHAT IS CLEAR, BASED ON A FULL READING OF THE RECORD, IS THAT THE INVESTIGATION AS TO THE PENALTY PHASE SLIPPED THROUGH THE CRACKS. TRIAL COUNSEL HAD HIS ATTENTIONS FOCUSED ELSEWHERE FOR A SUBSTANTIAL PERIOD OF TIME. BELIEVED THAT THE INVESTIGATOR WAS DOING THE WORK, WHEN, IN FACT THE INVESTIGATOR WAS NOT DOING THE WORK. WAS NEVER TOLD THAT HE NEEDED TO INVESTIGATE FOR THE PENALTY PHASE. AND WHAT IS IMPORTANT, ALSO, IN TERMS OF THE PREJUDICES, THAT NUMBER ONE, THIS IS A 8-4 DEATH RECOMMENDATION. NUMBER TWO, ON DIRECT APPEAL, THIS COURT STRUCK THE AVOIDING ARREST AGGRAVATING CIRCUMSTANCE AND, ALSO, FOUND THE PRIOR VIOLENT FELONY AGGRAVATING CIRCUMSTANCE TO BE IN APPLICABLE, BECAUSE IT WAS THE CONTEMPORANEOUS ROBBERY ON THE SAME VICTIM, AND SO WE HAVE GOT TWO AGGRAVATORS GONE FROM THE PICTURE AND WE, ALSO, HAVE AN EXTREMELY DAMAGING CLOSING ARGUMENT BY THE STATE, WHICH COMPLETELY HE VICE RATED THE CREDIBILITY OF DR. -- EVISCERATED THE CREDIBILITY OF DR. STILLMAN. I QUESTION HIS LOYALTY TO MR. BRUNO, BY DISCLOSING HIS LACK OF CONFIDENCE TO THE TRIAL JUDGE AND TO THE PROSECUTOR OF DR. STILLMAN.

SHOULD IT MAKE ANY DIFFERENCE TO US THAT THE COUNSEL WAS PRIVATELY RETAINED, AS OPPOSED TO COURT APPOINTED?

NO. NOT AT ALL.

LOOKING AT THE RECORDS, CAN YOU BASICALLY TELL US WHAT, IF ANYTHING, DR. STILLMAN HAD? WE DON'T KNOW HOW MUCH OR HOW LITTLE HE RECEIVED? IS THAT WE WE KNOW NOW?

DR. STILLMAN HAS DIED. THE ONLY THING WE HAVE TO GO IS WAS HIS TESTIMONY IN THE PENALTY PHASE, WHICH IS PRETTY VAGUE AS TO WHAT DOCUMENTS HE HAD, ALTHOUGH IT IS CLEAR THAT WHATEVER HE DID KNOW, VIS-A-VIS MITIGATION, ONLY CAME INTO HIS HANDS AT THE LAST MINUTE, WITHIN THE PAST 48 HOURS.

AND NO MITIGATION AT ALL WAS FOUND?

NO MITIGATION AT ALL WAS FOUND BY THE TRIAL COURT. THIS COURT AFFIRMED, IN TERMS OF DR. STILLMAN, THE TRIAL COURT REJECTED HIM ON CREDIBILITY GROUNDS, AND THIS COURT, ON DIRECT APPEAL, AFFIRMED THE SAME, BASED ON REVIEW OF HIS TESTIMONY. CERTAINLY THE TRIAL COURT HAD THE DISCRETION TO REJECT, IN TOTO, DOCTOR STILLMAN'S OPINIONS. THANK YOU.

MAY IT PLEASE THE COURT. I AM KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA IN THIS APPEAL. LET ME GO BACK TO ONE OF THE EARLY QUESTIONS REGARDING THE MOTIVE IN THIS CASE. I WOULD SUGGEST THAT THE ANSWER TO THAT QUESTION IS FOUND ON PAGE 80 OF THIS COURT'S DIRECT APPEAL OPINION, AND THAT IS THAT, ON THE NIGHT OF THE KILLING, AND I AM QUOTING FROM THIS COURT'S ORIGINAL OPINION, BRUNO BORROWED MIZELO'S CAR AND SAID THAT HE WAS GOING TO GET STEREO EQUIPMENT. THE MOTIVE IN THIS CASE WAS ROBBERY. AS TO DR. D AND DR. STILLMAN, WHICH HAS BEEN THE FOCUS OF MY OPPONENT'S ARGUMENT, ONCE AGAIN, THE STARTING POINT IS THIS COURT'S DIRECT APPEAL OPINION, AND IN THE ORIGINAL SENTENCING ORDER, WITH REGARD TO THE STATUTORY MENTAL MITIGATOR OF WHETHER OR NOT THE DEFENDANT WAS UNDER THE INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE, THE TRIAL COURT SENTENCING ORDER STATED "THIS MITIGATING CIRCUMSTANCE DOES NOT APPLY IN THIS CASE. THIS COURT HAS CONSIDERED THE TESTIMONY OF DR. STILLMAN PRESENTED AT THE ADVISORY PHASE AND MAKES A FACTUAL FINDING WHICH REJECTS THE DOCTOR'S OPINIONS REGARDING THE DEFENDANT BEING EXTREMELY MENTALLY OR EMOTIONALLY DISTURBED. WITH REGARD TO THE -- DISTURBED." WITH REGARD TO THE APPRECIATE AND CONFIRMED, THE TRIAL COURT WENT ON TO FIND THIS MENTAL MITIGATOR CIRCUMSTANCE DOES NOT APPLY IN THIS CASE. THE COURT HAS CONSIDERED THE DEFENDANT'S USE OF DRUGS PRIOR TO AND AT THE TIME OF THE MURDER BUT FINDS, IN LIGHT OF THE CIRCUMSTANCES OF THE OFF ANSWER -- THE OFFENSE AND THE DEFENDANT'S OWN TESTIMONY REGARDING HIS STATE OF MIND, THAT HE HAD NO SUBSTANTIAL IMPAIRMENT.

HOW DO WE DIVORCE ALL OF THOSE STATEMENTS FROM THE FACT THAT THE TRIAL COUNSEL HAD, IN FACT, SAID THAT WHAT DR. STILLMAN IS NOW SAYING IS NEWS TO ME. HE TOLD ME, BEFORE, SOMETHING COMPLETELY DIFFERENT.

I THINK JUSTICE QUINCE, THAT WHAT -- YOU HAVE AN EXPERT WHO TESTIFIED AT THE PENALTY PHASE, AS SURPRISE TO DEFENSE COUNSEL, THAT HIS CLIENT WAS INSANE, AT THE TIME OF THE OFFENSE. THAT WAS SURPRISE TESTIMONY TO MR. STELLA. HE TESTIFIED VERY CLEARLY THAT HE DIDN'T HAVE ANY IDEA THAT WAS COMING, THAT HE HAD TALKED WITH DR. STILLMAN AT LENGTH.

I GUESS IT SEEMS TO ME THAT A REAL DEFENSE ATTORNEY WOULD HAVE KIND OF TAKEN THAT INFORMATION AND RUN WITH IT. HERE WE HAVE SOMETHING THAT SEEMS TOTALLY FAVORABLE TO HIS CLIENT, YET IS HE GOING TO RENEGE -- HE IS GOING TO NEGATE IT.

I AM NOT SURE THAT THAT WAS SOMETHING THAT WAS DISCOVERED OR, RATHER, GONE INTO AT THE EVIDENTIARY HEARING, BUT LET ME, AND I AM NOT TRYING TO DUCK YOUR QUESTION, JUSTICE QUINCE, BUT LET ME ANSWER THE QUESTION IN THIS WAY. WHAT YOU TRULY HAVE, IN THIS CASE, IS A FAILURE OF PROOF AT THE 3.850 PROCEEDING. THAT IS WHERE THIS CASE, AT BOTTOM, RESTS, AND THE REASON I SAY THAT IS THIS, WHEN YOU LOOK AT WHAT DR. DEE TESTIFIED ABOUT AT THE EVIDENTIARY HEARING AND COMPARE THAT TO WHAT DR. STILLMAN TESTIFIED ABOUT AT TRIAL, YOU HAVE DR. DEE AGREEING WITH DR. STILLMAN. AND WHETHER OR NOT -- I REALLY DON'T KNOW WHAT ELSE TO SAY. THERE IS NOT MUCH TO SAY.

I GUESS I WANT YOU TO TELL ME ANY GOOD REASON WHY THE DEFENSE ATTORNEY DID NOT, WHEN THE DOCTOR SAID THIS INFORMATION, GET HIM TO TALK ABOUT IT. I MEAN TO EXPLORE IT MORE, INSTEAD OF, YOU KNOW, MAKING THE JUDGE AWARE OF HOW SURPRISED HE WAS AT IT. I MEAN, HE COULD HAVE ASKED, AT THAT POINT, FOR A CONTINUANCE, I WOULD IMAGINE.

JUSTICE QUINCE, AGAIN, MY MEMORY OF THE RECORD IS SOMEWHAT VAGUE, AS TO EXACTLY WHAT HAPPENED. I AM GOING TO DEFER TO MY FORMER COLLEAGUE'S BRIEF ON THE MATTER AS TO WHAT PRECISELY OCCURRED AT TRIAL, BUT WHAT WE HAVE, THOUGH, IS FOR ME TO TRY TO ANSWER YOUR QUESTION, I WOULD HAVE TO BE TRYING INVENT STRATEGY FOR MR. STEL, A BECAUSE THAT QUESTION IS NOT ONE THAT WAS ASKED AT THE EVIDENTIARY HEARING, AND THE STATE DOESN'T HAVE THE BURDEN OF PROOF. THE DEFENSE DOES. WHY THEY DIDN'T ASK THE QUESTION, I HAVE NO IDEA. I DON'T KNOW. BUT THE BOTTOM LINE, THOUGH, IS THAT THE TRIAL COUNSEL ARGUED FOR THE STATUTORY MENTAL MITIGATORS. THE TRIAL COURT REJECTED THE STATUTORY MENTAL MITIGATORS, AND THIS COURT AFFIRMED THAT FINDING. YOU HAVE DR. DEE COMING IN, WHAT --

DID THE STATE ATTORNEY ARGUE AGAINST THOSE STATUTORY MITIGATORS?

YES, MA'AM.

BASED ON WHAT?

ARGUING AGAINST DR. STILLMAN'S CREDIBILITY, AS HE WAS WELL-ENTITLED TO DO.

BUT DEFENSE COUNSEL, AT THAT POINT, DESTROYED THE CREDIBILITY OF DR. STILLMAN, BY GOING TO THE JUDGE AND TELLING THE JUDGE THAT STILLMAN IS COMPLETELY SURPRISED TO ME. I TALKED TO HIM BEFORE, AND HE SAID -- HE DIDN'T TELL ME ANY OF THIS. THAT COMPLETELY DESTROYED THAT WITNESS, DIDN'T HE?

WELL, JUDGE, JUSTICE SHAW, YOU HAVE GOT AT THAT POINT, THE TRIAL JUDGE HAVING TO LITERALLY SORT OF CHANGE HATS, AND, AGAIN, IT IS ADDRESSED IN THE STATE'S BRIEF, BUT JUDGES TYPICALLY AND ROUTINELY HEAR THINGS LIKE THAT, FOR LACK -- IT'S NOT A PARTICULARLY ARTFUL WAY TO PUT IT, BUT JUDGES TYPICALLY DISREGARD AND ARE TRAINED TO DISREGARD MATTERS THAT THEY SHOULD NOT PROPERLY CONSIDER. THAT WOULD BE ONE OF THOSE THINGS, IF, IN FACT, ONE BUYS THE IDEA THAT IT WAS DESTRUCTIVE TO STILLMAN'S CREDIBILITY. DR. STILLMAN'S LACK OF CREDIBILITY LAY NOT IN ANYTHING THAT COUNSEL SAID BUT IN THE LACK OF EVIDENCE TO SUPPORT HIS CONCLUSIONS AND OPINIONS.

COULDN'T WE ATTRIBUTE THIS TO A LACK OF PREPARATION AND THAT WOULD UNDERMINE THE CONFIDENCE OF THE JUDGE'S FINDING OR THE COURT'S FINDING HERE, ON -- IN THE PENALTY PHASE? STELLA DIDN'T KNOW THAT THE DEFENDANT HAD A SISTER. AND HERE IS A CAPITOL CASE, GOING INTO THE PENALTY PHASE, WHERE MITIGATION IS EVERYTHING. AND HE HASN'T TALKED TO THE SISTER, WHO COULD HAVE HAD SOMETHING TO SAY ABOUT THAT. HE PUTS ON THIS DOCTOR, TO SHOW MITIGATION, AND THEN COMPLETELY DESTROYS THE DOCTOR. SO CAN WE HAVE CONFIDENCE IN BELOW WHAT YOU WOULD EXPECT COUNSTOLL DO?

I THINK COUNSEL WAS JUSTIFIED IN -- IT IS A MULTIPART QUESTION, JUSTICE SHAW, AND I AM GOING TO TRY TO ANSWER IT, AS BEST I CAN HERE. LET ME GO STRAIGHT TO THE SISTER, FIRST OF ALL. STILLMAN KNEW ABOUT THE SISTER. STILLMAN TALKED TO HER. WE KNOW THAT, AT SOME POINT IN ALL THIS, MR. STELLA, ALSO, SPOKE WITH THE SISTER. AND WHILE THE SISTER HAD KNOWLEDGE THAT MR. BRUNO HAD BEEN IN A PSYCHIATRIC HOSPITAL, DR. STILLMAN HAD THAT KNOWLEDGE. THE SISTER, ALSO, SAID THAT, HAD SHE BEEN CALLED, SHE WOULD HAVE TESTIFIED THAT BRUNO SEXUALLY ABUSED HER WHEN SHE WAS YOUNG, SO YOU HAVE -- WHAT YOU LITERALLY HAVE WITH -- LET ME BACK UP AND PUT IT THIS WAY. WHAT THE DEFENDANT IS ASKING TO YOU DO IS GRANT RELIEF, BECAUSE TRIAL COUNSEL ALLEGEDLY DID NOT KNOW ABOUT A BAD WITNESS. THAT IS LITERALLY WHAT YOU ARE ALL BEING ASKED TO DO, TODAY, AND WHETHER OR NOT MR. STELLA KNEW WHERE THE -- KNEW ABOUT THE SISTER IS NOT THE POINT. STELLA KNEW ABOUT THE HOSPITALIZATION. HE KNEW IT WAS BASED ON A SUICIDE ATTEMPT. HE KNEW IT WAS A VERY, VERY BRIEF ONE, SOMETHING ON THE ORDER OF THREE DAYS, I THINK.

IS IT CLEAR THAT STELLA KNEW WHY HE WAS APPOINTED, FOR ANY REASON?

I DON'T THINK THERE IS ANY QUESTION HE DID AND I DON'T THINK THERE IS ANY QUESTION THAT DR. STILLMAN, IN HIS OWN WORDS, BECAME PART OF THE TEAM FOR THE TRIAL AND WAS USED AS A MITIGATION WITNESS, BUT ONCE AGAIN, WHAT WE COME BACK TO, WHEN ALL THIS IS SAID AND DONE, IS A TOTAL FAILURE OF PROOF, BY THE DEFENDANT --

LET ME -- YOU ARE SAYING AT THE EVIDENTIARY HEARING.

AT THE EVIDENTIARY HEARING. I AM SORRY.

YOU ARE SAYING IF, TODAY, THIS MAN HAD A NEW EVIDENTIARY HEARING -- EXCUSE ME -- A NEW PENALTY PHASE, THAT NO REASONABLE DEFENSE ATTORNEY WOULD CALL THE SISTER.

THAT IS BOTTOM LINE. YES, MA'AM.

NOW, WHAT ABOUT, THOUGH, THE OTHER EVIDENCE OF HIS LONG AND SERIOUS PSYCHIATRIC OR PSYCHOLOGICAL HISTORY THAT THE JURY HEARD NOTHING OF, AND WHAT ABOUT THAT? ARE YOU SAYING THAT THERE REALLY WOULDN'T BE ANYTHING DIFFERENT THAT WOULD COME OUT AT A SECOND HEARING, AND CAN YOU TELL US WHY, BASED ON ALL OF THE EVIDENCE THAT WAS PRESENTED?

LET ME BACK UP JUST A LITTLE BIT. THE ONLY PRIOR PSYCHIATRIC HISTORY WE HAVE IS THIS THREE-DAY STAY IN PILGRIM STATE HOSPITAL, WHEREVER THAT IS, THAT WAS SUBSTANTIALLY PRIOR TO THE TRIAL. MA'AM?

DO WE KNOW WHY HE WAS ACTUALLY COMMITTED TO THAT HOSPITAL?

MY UNDERSTANDING IS THAT IT CAME FOLLOWING A SUICIDE ATTEMPT THAT FOLLOWED ON THE HEELS OF A DIVORCE.

IS THAT IN THE RECORD?

I BELIEVE IT IS, YOUR HONOR.

ARE THE RECORDS FROM THAT HOSPITAL IN THE RECORD?

I THINK THEY ARE. I AM -- WELL, I AM REASONABLY SURE THEY ARE, GIVEN THAT MY OPPONENT IS, YOU KNOW, A VERY COMPETENT LAWYER AND CERTAINLY WOULD HAVE INTRODUCED THEM, HAD HE HAD THEM, SO I WOULD ASSUME THAT THEY ARE THERE.

THEY ARE THERE NOW?

YES, MA'AM. THEY ARE THERE IN THE RECORD NOW.

DO THEY SHOW ANY EVIDENCE OF -- DO THEY SHOW ANY DIAGNOSIS OF MENTAL ILLNESS?

I DON'T BELIEVE THAT THEY DO. WHAT WE COME BACK TO IS DR. DEE, WHO IS WELL-KNOWN TO THIS COURT, TESTIFIED TO THE SAME THINGS THAT DR. STILLMAN TESTIFIED ABOUT. AND LET ME KIND OF BACK UP HERE. DR. DEE INTERVIEWED BRUNO'S SISTER. BUT HE, ALSO, TESTIFIED, UNEQUIVOCALLY, ABSOLUTELY, NO KIDDING, I REALLY MEAN IT, I HAD FORMED MY OPINION BEFORE I TALKED TO HER, AND IT DIDN'T MAKE ANY DIFFERENCE, SO EVEN IF WE WANT TO ASSUME, FOR THE SAKE OF ARGUMENT, THAT STILLMAN SHOULD HAVE GONE AND TALKED TO THE SISTER AND DIDN'T DO IT, WE DON'T HAVE ANY PROOF. WE DON'T HAVE ANY SHORTCOMING, BECAUSE DEE'S TESTIMONY WAS EQUAL TO STILLMAN'S TESTIMONY, REGARDLESS.

AM I CORRECT THAT THE SISTER DIDN'T TESTIFY AT THE EVIDENTIARY HEARING?

THAT IS CORRECT, YOUR HONOR.

THE 850 HEARING. NOW, DR. DEE TESTIFIED AT THAT HEARING?

YES, SIR.

THERE WAS ANOTHER DOCTOR THAT TESTIFIED AT THAT HEARING?

DR. LIPPMAN, ALSO, TESTIFIED.

WHAT WAS HIS TESTIMONY ABOUT?

DR. LIPPMAN IS NOT A PSYCHOLOGIST OR PSYCHIATRIST. DR. LIPPMAN IS A NEUROPHARMACOLOGIST THE. HIS AREA OF EXPERTISE, AS I UNDERSTAND IT, IS IN THE EFFECTS OF DRUGS ON PEOPLE. AND HE TESTIFIED ABOUT DRUG USE AND THE EFFECT OF LSD, COCAINE, ALCOHOL. BUT ALL OF THAT TESTIMONY WAS BASED ON WHAT BRUNO REPORTED TO HIM, AND EVEN DR. LIPPMAN ADMITTED THAT PEOPLE WHO ABUSE DRUGS AND ALCOHOL ARE NOT THE BEST REPORITORIAL SOURCE FOR THEIR OWN CONSUMPTION OF CHEMICAL SUBSTANCES.

WHAT MITIGATION, WHEN IT BOILS DOWN, WHAT MITIGATION DID STELLA ACTUALLY PUT ON?

STELLA PUT ON DR. STILLMAN, WHO TESTIFIED ABOUT THE STATUTORY MENTAL MITIGATORS. HE PUT ON BRUNO'S PARENTS.

WHAT DID THIS DOCTOR SAY?

THAT BOTH DR. DEE AND DR. STILLMAN, BOTH, TESTIFIED THAT, IN THEIR EXPERT OPINIONS, BOTH STATUTORY MENTAL MITIGATORS WERE PRESENT. BOTH OF THEM SAID THE SAME THING. STELLA, ALSO, PUT ON BRUNO'S PARENTS, WHO TESTIFIED ABOUT HIS UPBRINGING, HIS FORMER LIFE. IT IS SET OUT, AGAIN, IN GREAT DETAIL IN THE STATE'S BRIEF. I CAN'T REMEMBER ALL OF THE THINGS THEY TESTIFIED ABOUT, BUT THE SUICIDE ATTEMPT, THE HOSPITALIZATION IN PILGRIM STATE HOSPITAL FOR THREE DAYS, IT WAS ALL BROUGHT OUT. WHAT WE HAVE IS, AGAIN, AND I KEEP COMING BACK TO THIS, WE HAVE A FAILURE OF PROOF, BECAUSE THE DEFENDANT HAS THE BURDEN, AND HE HAS NOT CARRIED IT. HE HAS SHOWN NOTHING, OTHER THAN THAT DR. DEE AGREED WITH DR. STILLMAN, AND DR. STILLMAN'S TESTIMONY AND OPINION, RATHER, OPINIONS, HAVE ALREADY BEEN REJECTED. THIS IS NOT EVEN A 3.850 THAT IS WHAT YOU WOULD CALL IN THE WHAT MIGHT HAVE BEEN CATEGORY OF DEFENSE THEORIES. THIS IS JUST PURELY AND SIMPLY A REHASH OF THE PENALTY PHASE.

THE MOTHER, BRUNO'S MOTHER TESTIFIED, BOTH IN 1987 AND AT THE 850?

THAT'S CORRECT, YOUR HONOR. BRUNO'S FATHER TESTIFIED AT TRIAL AND DIED IN THE INTERIM, BETWEEN THE TRIAL AND THE 3.850 PROCEEDING.

DID THE MOTHER'S TESTIMONY SUBSTANTIALLY DIFFER? ANOTHER ONLY SUBSTANTIAL DIFFERENCE, THERE WERE A COUPLE OF MINOR DIFFERENCE RENZ, BUT THE DIFFERENCES FROM THE 3.850 TESTIMONY OF THE MOTHER AND THE MOTHER'S TRIAL TESTIMONY DEALT WITH MATTERS THAT WERE PECULIAR TO HER NOT TO BRUNO. IN OTHER WORDS AN EXAMPLE WAS THAT SHE BECAME PREGNANT AT A YOUNG AGE, AS A RESULT OF A RAPE OR SOMETHING OF THAT NATURE. YOU KNOW, THAT IS SOMETHING THAT -- THAT IS THE KIND OF THING THAT IS NOT -- THAT IS NOT MITIGATION. THAT HAS NOTHING TO DO WITH BRUNO. THAT IS A FACT OF HER LIFE THAT, IF SHE WAS ON TRIAL FOR CAPITAL MURDER, IT MIGHT BE MITIGATION, AS FAR AS SHE IS CONCERNED, BUT WHEN BRUNO IS ON TRIAL FOR CAPITAL MURDER, IT DOESN'T HAVE ANYTHING TO DO WITH IT, AND THERE WAS ANOTHER INCIDENT, ANOTHER BIT OF TESTIMONY THAT IS IN THAT SAME GENRE, AND I CAN'T REMEMBER EXACTLY WHAT IT WAS, BUT IT WAS THE SAME SORT OF THING THAT WAS NOT RELATED TO THE CHARACTER OF THE DEFENDANT OR THE CIRCUMSTANCES OF THE OFFENSE. IT WAS RELATED TO THE MOTHER, INDIVIDUALLY.

WAS IT MADE KNOWN TO THE JURY THAT BRUNO HAD ATTEMPTED SUICIDE, HAD BEEN HOSPITALIZED FOR PSYCHIATRIC REASONS? DID THE JURY KNOW THIS?

HAD AN EXTENSIVE RECORD OF DRUG ABUSE. WAS ANY OF THIS PUT ON?

I AM UNCLEAR IN MY RECOLLECTION ELECTION OF THAT -- MY RECOLLECTION OF THAT, JUSTICE SHAW. I WOULD HAVE TO DEFER TO THE RECORD ON THAT. I SIMPLY CAN'T REMEMBER.

DID YOU SAY THE MOTHER AND FATHER TESTIFIED TO THIS? THAT WAS AT THE TRIAL?

THAT WAS AT THE TRIAL, YOUR HONOR. I AM SORRY. I AM BLENDING THIS CASE AND MY NEXT ONE, I AM AFRAID, TO SOME EXTENT.

DID THE JURY HEAR THIS TESTIMONY?

I BELIEVE THEY DID.

FROM THE PARENTS.

I BELIEVE THAT'S CORRECT. AGAIN, THAT IS SET OUT, AT LENGTH, AND THERE ARE SOME PARTICULAR SPECIFIC FINDINGS BY THE 3.8.

TRIAL COURT THAT RELATE TO THAT, THAT CITE BACK TO THE RECORD AND PROVIDE THE RECORD CITES TO IT.

I AM STILL -- YOUR BASIC ASSUMPTION IS THAT, IF THE SAME, NO MATTER HOW COMPETENT AN ATTORNEY WOULD HAVE BEEN, THE SAME EVIDENCE PRESENTED, EVEN WITH A DIFFERENT PERSON WHO, DIFFERENT EXPERTS, THAT A JUDGE WOULD, ONCE AGAIN, SAY, REJECT ALL STATUTORY MITIGATION, EVEN THOUGH IT WAS UNCONTROVERTED? I GUESS I AM HAVING TROUBLE, STILL, GOING BACK TO THE FACT THAT WE UPHELD A -- THE TRIAL JUDGE'S REJECTION OF DR. STILLMAN, AS NOT BEING WORTHY OF CREDIBILITY, AND YET WE ARE FACED, HERE, WITH A RECORD SHOWING A DEFENSE ATTORNEY WHO RELIED ON AN INVESTIGATOR WHO DIDN'T INVESTIGATE, AND WITH A PENALTY PHASE STARTING IMMEDIATELY AFTER A GUILT PHASE, AND BEING SURPRISED AND TELLING A JUDGE OF HIS SURPRISE THAT HIS OWN WITNESS WAS SAYING SOMETHING THAT HE DIDN'T KNOW. I MEAN IT SEEMS LIKE, ON ITS FACE, AND THIS IS, I GUESS, WHY A LOT OF THESE QUESTIONS ARE BEING ASKED, IS IT LOOKS LIKE IT IS INEFFECTIVE. NOW, WHETHER YOU ARE REALLY RELYING ON IT WOULDN'T HAVE -- SHOULDN'T UNDERMINE OUR CONFIDENCE IN THE RESULT, BECAUSE THE SAME STUFF WOULD BE PRESENTED, BUT AREN'T WE TO CONSIDER THE FACT THAT WE UPHELD THE REJECTION OF DR. STILLMAN AND, BASED ON THE RECORD THAT WAS PRESENTED THERE, WHICH IS FAR THINNER THAN THE RECORD THAT, NOW, IS SHOWN IN THIS EVIDENTIARY HEARING?

WELL, LET ME BACK UP AND POINT OUT A COUPLE OF THINGS ABOUT THE INVESTIGATION, FIRST OF ALL. MR. STELLA TESTIFIED, AT TRIAL, THAT EITHER HE OR HIS INVESTIGATOR SPOKE WITH FAMILY, FRIENDS, OLD TEACHERS, THAT SORT OF THING. THOSE SORT OF PEOPLE THAT APPEARS AT RECORD 719 OF THE 3.850 PROCEEDING.

EITHER HE OR HIS INVESTIGATOR.

EITHER HE OR.

BUT HIS INVESTIGATOR SAID I DIDN'T HAVE ANYTHING TO DO WITH THE PENALTY PHASE, SO IT WOULD HAVE HAD TO HAVE BEEN HIM THAT WOULD HAVE DONE IT.

YES. YES.

DOES HE HAVE ANY NOTES THAT SAID HE WOULD HAVE SPOKE TO THESE PEOPLE?

NO, MA'AM, BECAUSE HE LOST ALL HIS FILES IN HURRICANE ANDREW.

DID STELLA TESTIFY THAT HE LEFT THE INVESTIGATION OF THE PENALTY PHASE TO HIS INVESTIGATOR?

I DON'T RECALL THAT HE WAS THAT SPECIFIC IN SAYING THAT I TURNED IT ALL OVER TO THE INVESTIGATOR. I THINK HIS TESTIMONY WAS THAT HE DID -- THAT EITHER HE OR HIS INVESTIGATOR SPOKE WITH FAMILY AND FRIENDS AND TEACHERS, SUCH AS THAT, IN AN ATTEMPT TO DEVELOP MITIGATION EVIDENCE, AND THEIR PHONE CALLS WEREN'T RETURNED, IN MOST CASES, WAS HIS TESTIMONY.

DID HE SAY THAT HE WAS READY TO GO WITH THE PENALTY PHASE OF THE TRIAL?

YES. HE SAID HE WAS READY TO GO WITH IT.

I AM NOT SURE I ANSWERED YOUR QUESTION, JUSTICE PARIENTE. I AM, ALSO, ON YOU ALL'S TIME. I HAVE, ALSO, LOST YOUR QUESTION. THE STATE ASKS THE COURT TO AFFIRM THE DENIAL OF 3.850 RELIEF. THANK YOU.

I BELIEVE YOU HAVE USED ALL OF YOUR TIME, AS WELL, MR. SCHER. THANK YOU VERY MUCH. TO BOTH OF YOU.