GOOD MORNING, LADIES AND GENTLEMEN. WELCOME TO THE FLORIDA SUPREME COURT. WE HAVE, TODAY, FIRST, ON OUR CALENDAR, THE CASE OF JAMES HITCHCOCK VERSUS THE STATE OF FLORIDA, AND MR. CALDWELL?

MR. CHIEF JUSTICE. MAY IT PLEASE THE COURT. THIS CASE ARISES FROM JAMES HITCHCOCK'S DEATH SENTENCE, IMPOSEED UPON RESENTENCING. AFTER REMAND BY THIS COURT. THE FIRST ISSUE, WHICH I WILL DISCUSS, PERTAINS TO THE ADMISSION. WE SUBMIT ERRONEOUSLY, A DOCUMENT CONSISTING OF A NARRATIVE REPORT, IDENTIFIED AS A MINNESOTA MULTIPHASE PERSONALITY INVENTORY REPORT, OVER OBJECTION, AT THE CLOSE OF THE STATE'S CASE. THE MATTER AROSE WHEN THE DEFENSE MENTAL HEALTH EXPERT TESTIFIED, RESPECTING VARIOUS PERSONALITY DISORDERS WHICH THE DEFENDANT HAD, AND HIS ATTEMPTS AT AMELIORATING THOSE PERSONALITY DEFECTS. ON DIRECTION, HE MENTIONED THAT HE HAD PERFORMED PSYCHOLOGICAL TESTS BUT DID NOT IDENTIFY ANY OF THOSE TESTS OR SAY HOW HE RELIED UPON THEM, EXCEPT TO SAY THAT PSYCHOLOGICAL TESTING DID NOT INDICATE ANY MAJOR MENTAL ILLNESS. HE DID NOT, ON HIS DIRECTION, REFER TO THIS MINNESOTA MULTIPHASE I CAN PERSONALITY INVENTORY, MUCH LESS THIS WRITTEN NARRATIVE REPORT, WHICH WAS SUBSEQUENTLY ADMITTED INTO EVIDENCE. ON CROSS-EXAMINATION, AND I HAVE AND ENDED TO THE REPLY -- AND I HAVE APPENDED TO THE REPLY BRIEF CROSS-EXAMINATION OF THE EXPERT, THE STATE DEVELOPED THAT THIS DOCUMENT WAS A REPORT GENERATED, PURSUANT TO ADMINISTRATION OF THIS TEST.

DID THE DOCTOR ACTUALLY DO THIS NARRATIVE REPORT?

NO, MA'AM. NO, JUSTICE QUINCE, THE REPORT, IF YOU LOOK AT IT, AT THE TOP, HAS A LITTLE FACTS LINE, WHICH SAYS "FROM SCORING, NCS ASSESSMENTS", AND HAS A CODE FACTS NUMBER. THE STATEMENTS IN THE RECORD OR FROM -- A FAX RECORD. THE STATEMENT FROM DEFENSE COUNSEL THAT IT WAS GENERATED BY A MACHINE IN MINNESOTA AND BY COUNSEL FOR THE STATE, THAT IT WAS PREPARED BY A PSYCHOLOGIST AT THE UNIVERSITY OF MINNESOTA.

WHEN, IN RELATIONSHIP TO THE ACTUAL GIVING OF THE TEST, WAS THIS REPORT GENERATED?

IT WAS SHORTLY AFTER. IT WAS DURING THE SAME MONTH, I BELIEVE. IN ANY EVENT, IT WAS WITHIN A FAIRLY CLOSE TIME FRAME.

THERE WERE PART OF THE DOCTOR'S RECORDS.

I BELIEVE THAT IS CORRECT.

IN A NORMAL SITUATION, SAY, THIS WAS THE TRIAL OF A CASE, AS OPPOSED TO THE PENALTY PHASE, WOULD YOU AGREE THAT A REPORT THAT A DOCTOR RELIES ON CAN, FIRST OF ALL, BE USED FOR THE DOCTOR TO TESTIFY ABOUT? CORRECT?

YES. I AGREE WITH THAT, JUSTICE PARIENTE.

THIS DOCTOR HAD TESTIFIED ABOUT THE CONTENTS OF THE REPORT, DURING HIS EXAMINATION OR CROSS-EXAMINATION?

I AM SORRY. YOU ARE ASKING?

COULD HE HAVE TESTIFIED ABOUT THE CONTENTS OF THE REPORT, DURING DIRECTOR CROSS-EXAMINATION?

COULD HE HAVE?

COULD HE HAVE?

JUSTICE PARIENTE, ON DIRECTION, AND CROSS-EXAMINATION, IF HE RELIED UPON THIS WRITTEN NARRATIVE REPORT, YES, I AGREE HE COULD HAVE TESTIFIED. CERTAINLY AS TO HIS OPINION, BASED ON THE REPORT, AND I BELIEVE ABOUT THE CONTENTS OF THE REPORT, AS WELL. I AGREE WITH THAT, JUSTICE PARIENTE.

SO, SINCE HE DIDN'T -- INCLUDED -- COULD IT HAVE BEEN ADMITTED INTO EVIDENCE? IF IT HAD BEEN PROPERLY AUTHENTICATEED, IF THAT IS THE RIGHT WORD TO USE IN THIS CONTEXT?

I SUBMIT THAT THE LAW IS UNCLEAR ON THAT, AND THAT THE ANSWER IS PROBABLY NOT. WHETHER THE REPORT, ITSELF, COULD HAVE BEEN ADMITTED. THERE ARE CASES, I MENTIONED IN THE BRIEF, FOR INSTANCE, WHEN THERE WAS A HYPNOTIC REGULAR GREETINGS -- REGRESSION THING WITH THE DEFENDANT AND THE EXPERT TESTIFIED ABOUT IT, BUT NEVERTHELESS IT WOULD HAVE BEEN IMPROPER TO HAVE ADMITED A TAPE OF THAT REGRESSION THERAPY INTO EVIDENCE, BECAUSE THE STATE WOULD NOT BE ABLE TO CROSS-EXAMINE THE TAPE, ITSELF.

BUT THE OBJECTION, IT WOULD BE HERE IS SAY, IF THERE IS -- IT WOULD BE HEARSAY, IF THERE IS A OBJECTION, CORRECT? TO THE REPORT?

UNDER THOSE CIRCUMSTANCES THAT JUSTICE PARIENTE WAS TALKING ABOUT, I BELIEVE SO, YES.

WELL, WHAT I AM HAVING TROUBLE WITH HERE, IS THE FACT THAT, WHEN WE HAVE AN MMPI, WHICH IS FROM THE DOCTOR WHO TESTIFIED'S FILE, CORRECT?

PART OF HIS RECORD. IS THAT CORRECT?

THAT IS MY UNDERSTANDING, YES, SIR.

WELL, THAT IS WHAT IT SAYS IN THE CROSS-EXAMINATION THAT YOU HAVE.

IT SAYS ON THE CROSS-EXAMINATION, AGAIN, THAT THAT IS THE TEST WHICH I ADMINISTERED AND GAVE TO YOU.

AND SUPPLIED YOU WITH A COPY.

YES. SO THAT SEEMS -- AND I MEAN, THEY DID NOT ASK EXACTLY THAT QUESTION, BUT THAT IS THE INFERENCE TO BE DRAWN FROM THAT. YES.

BUT IT APPEARS THAT, IN MY READING OF THIS RECORD, INDICATES THAT THIS WAS PART OF THE DOCTOR'S FILE, WHICH HE HAD GIVEN A COPY OF TO THE PROSECUTOR. AND SO I WOULD UNDERSTAND, THE WAY THIS WOULD WORK, WOULD BE, THEN, HE WOULD HAVE IT IDENTIFIED, AND WAIT UNTIL HIS CASE, AND THEN OFFER IT INTO EVIDENCE. ISN'T THAT THE WAY IT WORKS?

JUSTICE WELLS, I SUBMIT THAT THAT WOULD NOT BE THE CORRECT PROCEDURE. HE WOULD HAVE TO ELICIT FROM THE WITNESS TESTIMONY THAT HE HAD RELIED UPON THIS IN REACHING HIS DECISION. THIS IS ONLY PART OF THE EXHIBIT. THERE WERE, ALSO, CHARTS, WHICH WERE PART OF THE EXHIBIT, ALSO, WHICH WERE NOT PUT INTO EVIDENCE, AND THERE IS NO EVIDENCE AS TO WHETHER IT WAS THE CHARTS THAT HE RELIED UPON OR WHETHER IT WAS THE WRITTEN NARRATIVE REPORT, AND IN ANY EVENT, IT IS NO EVIDENCE THAT HE ACTUALLY RELIED UPON IT IN REACHING HIS --

HE ADMINISTERED THIS TEST. IS THAT WHAT YOU ARE SAY SOMETHING.

THAT APPEARS TO BE THE CASE, YES.

SO THE FACT THAT IT IS SCORED BY SOMEBODY ELSE WOULDN'T LESSEN HIS RELIANCE ON THE REPORT, WOULD IT? I MEAN, IN OTHER WORDS, THIS IS THE KIND OF THING THAT IS, IN THE COURSE OF AN EXAMINATION, ONE OF THE STANDARD TESTS WOULD BE AN MMPI. AND IT WOULD BE ADMINISTERED. I MEAN I THOUGHT YOUR MAJOR CONCERN, HERE, WAS THAT IT WAS SORT OF AS IF HE REALLY DIDN'T ASK HIM ABOUT THE REPORT, AND THEN IT IS PUT IN SORT OF AFTER THE FACT, AS A SEPARATE PIECE OF EVIDENCE, AND THAT IS WHY I WAS ASKING YOU WHETHER YOU WOULD HAVE HAD PROBLEMS, THE SAME KIND OF PROBLEMS IF HE HAD BEEN QUESTIONED ABOUT THE REPORT, AND THEN AT THAT POINT, THE STATE HAD OFFERED, HAD REQUESTED THAT THE REPORT, ITSELF, BE ADMITTED INTO EVIDENCE. WOULD THERE -- WOULD YOU SEE THE SAME PROBLEM THAT YOU SEE IN THIS CASE, IN THE POSTURE IN WHICH IT WAS PLACED? IF YOU COULD ADDRESS THAT, WHY ONE IS NOT PROPER AND THE OTHER IS, OR IF THEY ARE BOTH IMPROPER?

OBVIOUSLY THAT WOULD BE A VERY DIFFERENT SITUATION, JUSTICE PARIENTE. THE POINT HERE IS THAT, WHEN THE STATE SOUGHT TO INTRODUCE IT INTO EVIDENCE, ALL THE ARGUMENT, AS I READ THE ARGUMENT, THE JUDGE ASKED THE PROSECUTOR, THE COUNSEL FOR THE STATE, THIS CONTRADICTS THE TESTIMONY OF THE WITNESS, AND THE STATE ATTORNEY SAID YES. THE STATE ATTORNEY SAID THAT THE WITNESS HAD RELIED UPON THIS DOCUMENT IN DIRECT AND CROSS-EXAMINATION. I SUBMIT THAT IT WAS -- SEEMED TO HAVE BEEN ADMITTED AS AN IMPEACHMENT DOCUMENT. IT SEEMS TO BE THE WAIT THAT THE ARGUMENT -- THE WAY THAT THE ARGUMENT WAS GOING AT THAT TIME, SO THAT DEFENSE COUNSEL MADE AN ARGUMENT OF IMPROPER IMPEACHMENT, AND I SUBMIT TO YOU THAT THAT IS CORRECT, BECAUSE THE WITNESS WAS NEVER CONFRONTED WITH THIS DOCUMENT. AND ASKED WHAT ABOUT THIS? WHAT ABOUT THAT? WHAT ABOUT THE OTHER THING? AND THE COUNSEL FOR THE STATE, FRANKLY, ADMITTED THAT HE WAS AVOIDING DOING THAT, BECAUSE HE DID NOT WANT THE WITNESS TO HAVE AN OPPORTUNITY TO EXPLAIN AWAY HIS PHRASE, WHAT WAS GOING ON, AND HE CHARACTERIZED THAT AS A LEGISLATE MIGHT TACTIC ON HIS PART -- AS A LEGITIMATE TACTIC ON HIS PART, COUNSEL FOR THE STATE, SO THE WHOLE ISSUE FOR THE COURT APPEARS TO BE WHETHER THIS HAS BEEN ADMISSIBLE AS IMPEACHMENT VAL NON. AND THAT IS THE WAY IT WAS LITIGATED, AND I SUBMIT THAT IT WAS IMPROPER IMPEACHMENT. NOW --

LET ME ASK YOU THIS QUESTION. COULDN'T, AT THAT POINT, BECAUSE, LET'S SAY IT WAS A SCHOOL RECORD, AND THEY SAID DID YOU RELY ON THIS SCHOOL RECORD? WELL, YES, BUT THEN THEY DON'T EXPLAIN WHY THEY WERE GOING TO ASK THAT, AND THEN AT THE END THEY SAY THEY WANT THE SCHOOL RECORD, BECAUSE THEY SAY IT FLAT-OUT CONTRADICTS EVERYTHING THE DOCTOR SAID. DON'T YOU HAVE THE REMEDY AT THAT POINT THAT YOU CAN CALL THE DOCTOR AS A -- BACK TO THE STAND? I MEAN THAT IS A -- WAS THAT AN OPTION, AND WOULDN'T THAT HAVE BEEN SORT OF CURED THE PROBLEM THAT MAY HAVE BEEN CREATED BY SOMETHING THAT MIGHT BE UNORTHODOX BUT YOU HAVE AWAY OF SOLVING IT, TO SAY, FOR THE DOCTOR, TO EXPLAIN WHAT IT WAS ABOUT THIS REPORT THAT EITHER IT IS CONSISTENT OR WHY HE DIDN'T RELY ON IT?

WELL, FIRST, AS TO THE PREDICATE OF THE QUESTION, THE STATE DID NOT ASK HIM IF HE RELIED ON THE DOCUMENT. OKAY. AS TO THE SUBSTANCE OF THE QUESTION, I SUBMIT THAT THAT IS -- THAT WOULD BE CORRECT, IF THERE WERE A PREDICATE FOR ADMISSION OF THE DOCUMENT. I SUBMIT, IN THIS CASE, IT WAS NOT A PREDICATE FOR THE ADMISSION OF THE DOCUMENT. THERE WAS NOT -- NO EVIDENCE, THE STATE DID NOT, AS THE PROPONENT OF THE EVIDENCE, DID NOT PRESENT EVIDENCE THAT IT WAS -- IT HAD BEEN RELIED UPON BY THE WITNESS, SO THAT THERE WAS NO POINT FOR THE DEFENSE TO CALL HIM BACK AND LAY A PREDICATE FOR THE STATE'S ADMISSION OF THE DOCUMENT.

WHAT I AM SAYING IS THAT YOU -- THAT DEFENSE COUNSEL KNEW, THEN, THAT THE STATE WAS USING IT AS, QUOTE, IMPEACHMENT. AND SO AT THAT POINT, TO SHOW WHY IT REALLY DIDN'T CONTRADICT ANYTHING IN THE TESTIMONY, AT THAT POINT, WOULD IT, IF YOU WANT TO MAKE SURE THAT IT IS GOING TO BE PROPERLY EXPLAINED TO THE JURY, DIDN'T YOU HAVE THE OPPORTUNITY TO CALL THE DOCTOR BACK TO THE STAND?

LET ME SEE IF I CAN PHRASE -- WELL, OKAY. WELL, THE FIRST, THE SHORT ANSWER, IS THAT THAT WAS A POSSIBILITY. HOWEVER, THE REAL ISSUE BEFORE THE COURT IS THE ADMISSIBILITY OF THE DOCUMENT OR NOT, AS IMPEACHMENT, AND I SUBMIT THAT IT WAS NOT ADMISSIBLE FOR THAT PURPOSE. NOW, THE SOMEWHAT LONGER ANSWER IS THAT THIS IS NOT A DOCUMENT SETTING OUT FACTS. IT IS A DOCUMENT SETTING OUT OPINIONS. YOU GAVE THE EXAMPLE OF A SCHOOL RECORD. HE GOT A F IN THIS GRADE, IN THIS COURSE, SOMETHING LIKE THAT. THAT IS A FACTUAL STATEMENT. WHICH IT CAN BE CONTRADICTED. IF HE HAD TESTIFIED THAT THE DEFENDANT HAD GOTTEN A "A" IN THIS COURSE, AND I KNOW THAT, BECAUSE I LOOKED AT THE SCHOOL RECORD, THEN THE SCHOOL RECORD COULD COME INTO EVIDENCE AND SAY IT WAS A "F", AND THEN, MAYBE, THE WITNESS CAN BE BROUGHT IN AND SAY, WELL, NO, THAT IS AN INCORRECT RECORD. THERE WAS A SUBSEQUENT RECORD SHOWING IT WAS A "A", SOMETHING LIKE THAT. HOWEVER, THIS IS AN OPINION GENERATED BY SOMEONE OR SOMETHING UNKNOWN.

IT WAS ADMINISTERED BY THE DOCTOR. IT IS NOT AS IF --

THAT'S RIGHT.

IT IS NOT AS IF -- IS A RECORD OF A PSYCHOLOGICAL TEST DONE AT SOME OTHER POINT IN TIME BY SOME UNKNOWN PERSON. SO DOESN'T THAT DISTINGUISH IT, AS FAR AS THAT IT IS HIS FILE? HE GENERATED IT. SHOULDN'T HE HAVE TO EXPLAIN AWAY WHY HE DIDN'T RELY ON IT, IF THE STATE IS NOW PUTTING OUT NOTICE THAT WE THINK IT CONTRADICTS WHAT THIS DOCTOR SAID?

WELL, IT DIDN'T CONTRADICT ANY FACTS OR OPINIONS THAT HE SAID. WHAT IT IS, IS IT IS A SEPARATE OPINION, WHICH, APPARENTLY, HE DID OR DID NOT RELY UPON. THE POINT THAT I AM TRYING TO MAKE IS THAT THERE WAS NO PREDICATE FOR ITS ADMISSION, AND THE DEFENSE CAN'T CROSS-EXAMINATION THE DOCUMENT. I MEAN THE STATE IS NOW ARGUED ON APPEAL THAT, REGARDLESS OF WHETHER THE STATE HAD ARGUED IN THE TRIAL COURT THAT IT WAS IMPEACHMENT OR THAT THERE WAS SOME TACTICAL DECISION HERE, IT IS NOW ADMISSIBLE SIMPLY AS A SUBSTANTIVE PIECE OF EVIDENCE, AND THE PROBLEM THERE IS, AS JUSTICE WELLS MENTIONED, THE PROBLEM THERE IS THE HEARSAY CONFRONTATION CLAUSE PROBLEM, WHICH WE CAN'T CROSS-EXAMINATION THE DOCUMENT, AND THAT GETS BACK TO THE EXAMPLE I MENTIONED BEFORE, OF THE TAPE OF THE HYPNOSIS REGULAR GREETINGS SESSION. -- REGRESSION SESSION.

DON'T WE HAVE, THOUGH, IN A PENALTY PHASE, A STATUTE THAT SAYS THAT HEARSAY EVIDENCE CAN BE ADMITTED AND THEN THAT IS WHAT WE HAVE GOT TO FOCUS, SO THIS WAS NOT -- THIS WAS A CIVIL TRIAL. CLEARLY IT MIGHT NOT BE ADMISSIBLE AS A MEDICAL RECORD OR AS -- OR UNDER ANY OTHER EXCEPTION, BUT WOULD YOU ADDRESS THAT STATUTE AND WHY THE STATUTE DOESN'T APPLY IN THIS CASE.

BECAUSE IN ADDITION TO THE STATUTE, THERE IS A CONFRONTATION CLAUSE, RIGHT, WHICH THIS COURT HAS HELD, APPLIES TO CAPITAL SENTENCING PROCEEDINGS. THE CASE ON THAT, PRINCIPLE CASE ON THAT, IS A CASE CALLED RHODES, WHERE THERE WAS A TAPE RECORDING OF A CRIME VICTIM OF AN OUT-OF-STATE CRIME. THE COURT, THIS COURT, HELD THAT IT WOULD BE A VIOLATION OF THE CONFRONTATION CLAUSE, TO ADMIT THAT TAPE RECORDING INTO EVIDENCE, BECAUSE THE DEFENSE WOULD NOT BE ABLE TO CROSS-EXAMINE THE TAPE RECORDING.

MR. CALDWELL, YOU HAVE RAISED A NUMBER OF ISSUES, AND WE HAVE JUST DEALT WITH ONE, AND I DON'T KNOW IF THAT IS WHAT YOU INTENDED TO DO OR NOT, BUT YOUR TIME IS LIMITED. IF YOU HAVE OTHER ISSUES, YOU MIGHT WANT TO PURSUE.

WELL, I WILL BRIEFLY MENTION THAT MY SECOND AND THIRD ISSUES PERTAIN TO THE STATE'S FINAL ARGUMENT. THE THIRD ONE HAS TO DO WITH THE STATE'S ASSERTION TO THE JURY AS TO WHY HE DID NOT CROSS-EXAMINATION THE WITNESS, WHICH WAS CONTRARY TO THE REASON WHICH HE GAVE THE JUDGE, AND WE SUBMIT IT WAS AN IMPROPER FORM OF ARGUMENT. THE SECOND ISSUE IS THAT THE STATE TOLD THE JURY, IMPROPERLY, WE SUBMIT, THAT IT COULD IGNORE EVIDENCE OF THE DEFENDANT'S DEPRIVED AND ABUSED CHILDHOOD, IF IT DID NOT CONSIDER SUCH EVIDENCE TO BE MITIGATING, AND THIS COURT HAS HELD THAT SUCH EVIDENCE IS MITIGATING AS A MATTER OF LAW.

DID THE COURT GIVE A PROPER INSTRUCTION ON THOSE ISSUES?

AS TO THE TREATMENT OF MITIGATION?

YES.

I SUBMIT THAT IT DID NOT. IT TOLD THE JURY THAT, AMONG THE MITIGATING CIRCUMSTANCES, THAT IT MAY CONSIDER, ARE NAMING STATUTORY CIRCUMSTANCES UNDER THE SO-CALLED CATCH-ALL. HOWEVER, THE COURT DID NOT INSTRUCT THE JURY THAT IT MUST DR EVIDENCE -- MUST CONSIDER EVIDENCE OF AN ABUSED OR DEPRIVED CHILDHOOD, IF ESTABLISHED BY THE EVIDENCE.

THANK YOU. YOU MAY SAVE SOME TIME, IF YOU WISH. MR. NUNNERY -- MR. NUNNELLEY.

MAY IT PLEASE THE COURT. KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA. I AM TAKEN, SOMEWHAT, BY SURPRISE, TO HEAR AN ISSUE CLAIMED BY THE ADEQUACY OF THE INSTRUCTION OMITGATION. I DON'T BELIEVE THAT WAS AN ISSUE RAISED IN THE APPELLATE'S BRIEF. AS TO THE CLOSING ARGUMENT CLAIMS, CLAIMS TWO AND THREE, THE CLOSING ARGUMENT CLAIMS CONTAINED IN THE APPELLANT'S BRIEF ARE NOT PROPERLY PRESERVED. THEY WERE NOT PRESERVED BY TIMELY OBJECTION, AND THEY CAN'T BE RAISED IN THE ABSENCE OF SUCH AN OBJECTION. EVEN IF WE OVERLOOK THE PROCEDURAL DEFAULT AS TO THE CLOSING ARGUMENT CLAIMS, THERE IS ABSOLUTELY NO MERIT WHATSOEVER TO ANY OF THEM. THERE IS NO SHRED OF MERIT TO ANY CLAIM CONCERNING AN IMPROPER CLOSING ARGUMENT. INSOFAR AS THE MMPI REPORT IS CONCERNED, THE CROSS-EXAMINATION THAT IS AND ENDED TO THE APPELLANT'S REPLY BRIEF, CLEARLY CONTAINS AN IDENTIFICATION OF THE REPORT BY DR. TUBER, THE WITNESS. THE WITNESS TESTIFIED THAT HE GAVE THE TEST. HE SENT IT OFF AND GOT IT SCORED, AND, AMONG OTHER THINGS, IT WAS WHAT HE USED IN FORMULATING HIS OPINIONS AND CONCLUSIONS REGARDING JAMES ERNEST HITCHCOCK'S PRESENT MENTAL STATUS. IF THAT IS THE CASE AND THAT IS WHAT THE TESTIMONY IS, AND THOSE ARE THE FACTS WITH WHICH WE ARE BOUND, THERE IS NO REASON WHY THE REPORT IS NOT ADMISSIBLE, EITHER AS IMPEACHMENT OR AS REBUTTAL EVIDENCE. IT SIMPLY DOESN'T MATTER. IT IS AN ISSUE THAT IS BEING CREATED OUT OF THIN AIR. IT IS NOT A REAL CLAIM.

ASSUMING THIS WASN'T THE PENALTY PHASE, WHAT IF THIS WAS A CRIMINAL TRIAL, ITSELF, WHAT, IT IS HEARSAY. WHAT EXCEPTION DOES IT FALL UNDER FOR ADMISSION, INDEPENDENT ADMISSION? IS IT A MEDICAL RECORD THAT -- WHAT -- WHICH PART OF THE EVIDENCE CODE DOES IT QUALIFY?

WELL, JUSTICE PARIENTE, SINCE THIS IS A PENALTY PHASE --

LET'S GO BACK TO -- BECAUSE YOU JUST SAID IT JUST COMES IN BECAUSE HE RELIED ON IT, AND I THINK SOMETIMES LAWYERS THINK THAT THAT IS AN INDEPENDENT BASIS FOR ADMITTING EVIDENCE THAN THAT WOULD OTHERWISE BE HEARSAY. THEY RELIED ON IT. THAT IS NOT AN INDEPENDENT BASIS UNDER ANY OF THE HEARSAY EXCEPTIONS TO THE EVIDENCE CODE FOR ADMITTING EVIDENCE, IS IT?

WELL, I HAVEN'T REALLY LOOKED AT THE ISSUE, BECAUSE IT IS NOT AN ISSUE IN THIS CASE. AS FAR AS WHETHER OR NOT THE MMPI REPORT WOULD COME IN, IN THE GUILT PHASE OF THIS TRIAL, THAT IS A HYPOTHETICAL THAT I HAVEN'T REALLY CONSIDERED, AGAIN, BECAUSE I AM TALKING, DEALING WITH A PENALTY PHASE, IN THE CONTEXT OF THIS CASE, BUT I BELIEVE, IN HAVING, AND I APOLOGIZE. I AM HAVING TO THINK ABOUT THIS, BECAUSE IT IS NOT SOMETHING I AM REALLY PREPARED TO ADDRESS, BUT IT WOULD CERTAINLY, I BELIEVE, IF THIS WAS AT THE GUILT PHASE OF THE TRIAL, IT WOULD CERTAINLY BE FAIR GAME FOR IMPEACHMENT.

THAT IS ITS POINT THOUGH. IF IT IS IMPEACHMENT, OF COURSE, THEN YOU HAVE IT AND LOOK AT THIS DOCUMENT. LET'S DISCUSS IT, AND THEN YOU CONFRONT HIM WITH THE INCONSISTENT STATEMENT, AND THEN THE JURY HAS IT IN CONTEXT. YOU CAN'T JUST GO AHEAD, AS IMPEACHMENT, AND SAY, WELL, I AM NOT GOING TO TALK TO THE WITNESS ABOUT IT, BECAUSE I DON'T WANT HIM TO EXPLAIN IT AWAY. I WILL JUST PUT THIS IN AT SOME OTHER PART IN THE TRIAL. THAT CAN'T BE DONE IN AN ORDINARY CRIMINAL OR CIVIL CASE, CAN IT?

WELL, BUT, WE, HERE, ARE DEALING WITH THE PENALTY PHASE. IT IS HEARSAY THAT WE ARE TALKING ABOUT. HEARSAY, UNDER THE STATUTE, IS ADMISSIBLE AT THE PENALTY PHASE, PROVIDED THE DEFENDANT IS GIVEN A FAIR OPPORTUNITY TO EXPLAIN IT AWAY. AND IN THIS CASE, THE DEFENDANT HAD THAT, AND IN FACT WAS INVITED BY THE TRIAL COURT TO BRING DR. TUBER BACK. DR. TUBER WAS STILL IN THE COURTHOUSE. THIS ISN'T A SIX WHERE AN OUT-OF-TOWN -- THIS ISN'T A SITUATION WHERE AN OUT-OF-TOWN EXPERT IS ON A PLANE BACK TO MIAMI AND ISN'T AVAILABLE. THIS IS A SITUATION WHERE DR. TUBER WAS SITTING IN THE COURTHOUSE HALL, AND IF HITCHCOCK'S LAWYERS WANTED TO CALL HIM BACK AND PUT HIM ON THE STAND IN SURREBUTTAL, THEY COULD DO. THAT THE TRIAL COURT MADE THAT PERFECTLY CLEAR THEY COULD DO THAT, IF THEY WANTED TO. THEY DECIDED NOT TO. THEY GOT THE REPORT, AND THE MMPI REPORT IS NOT JUST THREE PAGES THAT WENT INTO EVIDENCE. IT IS A FAIRLY THICK DOCUMENT THAT CONTAINS THE CHART AND THE SCORING AND THE HIGH POINT PAIRS AND ALL OF THAT KIND OF STUFF, THE "F" AND THE "K" AND THE "L" SCORES AND ALL OF THAT. WHAT WENT IN WAS THE SUMMARY. IT WAS THE SUMMARY OF WHAT WAS SCORED.

IT DID NOTHING TO PREVENT THE DEFENDANT, FOR COMPLETENESS, TO ASK FOR THE REST OF THE REPORT TO GO IN.

THE DEFENDANT SPECIFICALLY ARGUED AGAINST THE REST OF THE REPORT GOING IN. AND THERE IS NO RULE OF COMPLETENESS OR VIOLATION CLAIMED HERE. THE DEFENDANT GOT WHAT HE WANTED AND HE ASKED FOR! AND, AGAIN, WE ARE HEARING, ON ARGUMENT, THAT REALLY DOESN'T FIT THE FACTS. THE DEFENDANT IS TRYING TO FIT THIS ARGUMENT OR HE IS TRYING TO FIT THE PENALTY PHASE BACK UNDER THE GUILT PHASE, UNDER THE GUILT-PHASE RULES, AND HE CAN'T DO THAT, BECAUSE THE STATUTE PROHIBITS HIM FROM DOING. THAT HE HAD EVERY OPPORTUNITY TO DO WHATEVER HE WANTED TO DO, TO EXPLAIN ABOUT THE REPORT. NOW, THERE IS, ALSO, AN ARGUMENT IN THE DEFENDANT'S BRIEF, THAT THE STATE MISS ARGUED WHAT THE REPORT SAID, AND THAT IT REALLY SUPPORTED DR. TUMER'S TESTIMONY RATHER THAN REPEATING IT OR REBUTTING IT, WHICHEVER TERM WE WISH TO USE, AND IF THAT IS TRUE, THE JURY HAD THE REPORT BEFORE THEM, WAS WELL ABLE TO CONSIDER IT, THEMSELVES, AND IF THE STATE MISS ARGUED IT AND ARGUED THAT IT SAYS SOMETHING IT DIDN'T SAY, IT STANDS REASON ON ITS HEAD TO SUGGEST THAT THAT HELPED THE STATE! IT JUST DOESN'T MAKE SENSE! THIS IS NOT A COMPLICATED ISSUE. IT HAS BEEN TURNED INTO A COMPLICATED ISSUE, BUT IT IS NOT. THE FACT OF THE MATTER IS, VERY SIMPLE, THE DEFENDANT'S -- THE DEFENDANT'S EXPERT WITNESS GAVE HIM THE MMPI. THERE IS NO DISPUTE ABOUT THAT. ACTUALLY THE MMPI TWO, I BELIEVE. HE GOT THE TEST SCORED, WHICH YOU HAVE TO DO TO USE THE TEST, IF YOU ARE A PSYCHOLOGIST, THEN HE USED IT WHEN HE FORMULATED HIS OPINIONS AND CONCLUSIONS. TO WHAT EXTENT HE RELIED ON IT, I DON'T REMEMBER FROM THE RECORD. THE RECORD SPEAKS FOR ITSELF AND I CAN'T CHANGE IT. THE FACT OF THE MATTER IS THAT REPORT WAS FAIR GAME FOR REBUTTAL. IT WAS FAIR GAME FOR IMPEACHMENT. ANY ERROR THAT THE DEFENDANT PERCEIVES COULD HAVE BEEN CURED BY RECALLING DR. TUMER. HE DIDN'T TAKE ADVANTAGE OF IT. THERE IS SIMPLY NO ERROR IN THE FIRST PLACE. UNLESS THE COURT HAS FURTHER QUESTIONS, ABOUT ANY OF THE OTHER ISSUES CONTAINED IN THE BRIEF, I BELIEVE THE STATE CAN REST ON ITS BRIEF, AS FAR AS THIS CASE IS CONCERNED. THE STATE RESPECTFULLY ASKS THE COURT TO AFFIRM THE DEATH SENTENCE IN THIS CASE.

WOULD YOU COMMENT, BRIEFLY, RELATIVE TO THE ISSUE ON ARGUMENT, WHETHER OR NOT THIS WAS IMPROPER ARGUMENT ON THE PART OF THE STATE. YOU HAVE SOME SORT OF A GOLDEN RULE TWIST THERE.

WELL, JUSTICE SHAW, LET ME RESPOND IN THIS FASHION. THE ISSUE -- THERE WAS NO OBJECTION, FIRST OF ALL. AND AN OBJECTION IS REQUIRED TO PRESERVE A CLOSING ARGUMENT ERROR. THE DEFENDANT DID NOT MAKE ONE. WHAT THE DEFENDANT, IF I MAY FIND IT IN MY BRIEF, WHAT THE DEFENDANT TRIES TO ESTABLISH, AS A GOLDEN RULE ARGUMENT, IF YOU CAN BEAR WITH ME JUST A MOMENT SO I CAN FIND IT, WELL, LET ME PUT IT THIS WAY. THE DEFENDANT DID NOT OB. FIRST OF ALL, I WOULD SUGGEST THAT THE ABSENCE OF A -- DID NOT OBJECT. FIRST OF ALL, I WOULD SUGGEST, BY ABS OF OBJECTION, THAT COUNSEL, WHO WAS CERTAINLY MORE THAN WILLING TO OBJECT, WOULD INDICATE TO ME, I BELIEVE TO ANY -- ANYONE READING THE RECORD, THAT THE ARGUMENT, AS IT PLAYED IN THE COURTROOM, DID NOT COME ACROSS AS IT IS BEING MADE TO APPEAR IN THE BRIEF. COUNSEL FOR MR. HITCHCOCK HAD NO HESITATION ABOUT OBJECTING. TO THE STATE'S ARGUMENTS. IF THERE HAD BEEN A PERCEIVED BASIS FOR AN OBJECTION, BASED UPON THE WAY THE ARGUMENT PLAYED DURING THE DYNAMICS OF A TRIAL, I BELIEVE IT IS FAIR TO SAY THAT COUNSEL WOULD HAVE BEEN OBJECTING TO IT. THERE IS SIMPLY NO ERROR. NONE OF THE ARGUMENTS, DESPITE THE -- DESPITE THE EFFORTS BY THE DEFENDANT TO LABEL VARIOUS PARTS OF THE ARGUMENT, THE CLOSING ARGUMENT, AND I MIGHT POINT OUT, IF I REMEMBER IT CORRECTLY, THE DEFENDANT'S BRIEF ON THE ISSUE IS SOMEWHAT LONGER THAN THE CLOSING ARGUMENT, ITSELF, IT IS AN ATTEMPT TO PUT A SQUARE PEG IN A ROUND HOLE. THERE SIMPLY IS NO ERROR TO THESE. IT IS ATTEMPTS TO LABEL IT WITH A CATCHPHRASE, WHEN THERE IS NOTHING THERE. I WOULD POINT OUT THAT THE STATE'S PENALTY PHASE PRESENTATION, FROM THE FIRST WITNESS TO THE TIME THE STATE ANNOUNCED THAT THE STATE RESTS, WAS SLIGHTLY OVER 50 PAGES. THIS IS CERTAINLY NOT AN OVERKILL PROSECUTION, BY ANY STRETCH OF THE IMAGINATION. THIS WAS A MINIMALIST, CLOSE TO THE VEST, VERY CAREFULLY PROSECUTED CASE, AND THERE IS NO ERROR IN IT. I SUGGEST TO THE COURT AND RESPECTFULLY REQUEST THAT THE DEATH SENTENCE BE AFFIRMED. IF THERE ARE NO FURTHER QUESTIONS, I WILL STAND ON MY BRIEF AS TO THE FURTHER ISSUES.

THANK YOU, MR. NUNNELLEY. MR. CALDWELL, REBUTTAL?

FIRST, WITH RESPECT TO THE INSTRUCTION RESPECTING MITIGATION, I WAS RESPONDING, OBVIOUSLY, TO THE CHIEF JUSTICE'S QUESTION, AS TO WHETHER THE COURT GAVE AN INSTRUCTION. THE POINT IS THAT THE OBJECTION WAS OVERRULED, SO THE DEFENSE COUNSEL WAS NOT IN POSITION TO ASK FOR A CURETIVE INSTRUCTION. THE SECOND ISSUE THAT I WANT TO CLARIFY IS, AS DEFENSE COUNSEL POINTED OUT WITH RESPECT TO THIS MMPI DOCUMENT, DEFENSE COUNSEL DID NOT KNOW WHAT PART OF THIS 20-PAGE DOCUMENT THE STATE CONSIDERED TO BE IMPEACHMENT, AND DEFENSE COUNSEL SAID THE ONLY, IF WE HAD TO RECALL THE WITNESS, WE WOULD HAVE TO GO THROUGH THE LANE BY LINE, THROUGH THE 20-PAGE DOCUMENT, ESSENTIALLY CROSS-EXAMINING, I SUPPOSE, THE WITNESS AS TO WHAT THIS LINE MEANT AND WHAT THAT LINE MEANT AND WHAT THE OTHER LINE MEANT. AND THE IMPORTANT FACT, OF COURSE, IS THAT THE STATE FAILED TO SHOW A PREDICATE FOR ADMISSION. FINALLY, DEFENSE COUNSEL DID NOT DEMAND OR ASK THAT ONLY PART OF THE REPORT BE ADMITTED. WHAT HAPPENED WAS THAT THE COURT, TOWARD THE END OF THE DISCUSSION OF THIS ISSUE, SAID TO COUNSEL FOR THE STATE, ARGUMENT TO THE JURY ISN'T GOING TO BE BASED ON ANY OF THESE GRAPHS. COUNSEL FOR THE STATE REPLIED "IT WILL BE BASED ON THE NARRATIVE AND IF THE COURT WANTS TO ONLY PUT IN THE NARRATIVE, THAT IS FINE. I DIDN'T WANT TO SEPARATE IT OUT. THE ENTIRE THING HE SAID IS PART OF HIS EVALUATION. THE NARRATIVE IS THE ONLY THING I AM CONCERNED ABOUT." GAIN AGAIN, THERE WAS NO EVIDENCE, NO -- AGAIN, THERE WAS NO EVIDENCE, NO TESTIMONY, THAT THIS MMPI NARRATIVE REPORT FORMED THE BASIS OF THE WITNESSES' OPINION. HIS ONLY TESTIMONY AS TO THE USE THAT HE MADE OF ANY PSYCHOLOGICAL TESTING, WAS THAT IT SHOWED AN ABSENCE OF MAJOR MENTAL ILLNESS. SO THIS SIMPLY DID NOT GO TO THE ISSUES RAISED ON THE DIRECTION. I REQUEST --

ONE OF YOUR ARGUMENTS CONCERNING PROSECUTORIAL COMMENTS INVOLVED THE PROSECUTOR'S STATEMENTS CONCERNING THE DOCTOR'S TESTIMONY AND HOW HE REALLY DIDN'T SAY ANYTHING, AND WERE THOSE COMMENTS OBJECTED TO BY THE DEFENSE ATTORNEY?

NO, JUSTICE QUINCE, THEY WERE NOT. I RAISED TWO LEGAL ISSUES WITH RESPECT TO THAT. ONE IS THAT THE COURT HAS RECOGNIZED THAT, IN DETERMINING THE PREJUDICIAL EFFECT OF A PRESERVED ISSUE, THE COURT MUST LOOK TO THE ENTIRE RECORD, INCLUDING UNPRESERVED ERRORS. AND THERE WAS IMPROPER ARGUMENT PRESERVED, I SUBMIT, AND POINTS TWO AND THREE ON THE APPEAL. SECONDLY, THE COURT WILL LOOK TO THE CUMULATIVE ARGUMENT PRESENTED BY A PARTY, TO DETERMINE WHETHER FUNDAMENTAL ERROR HAS OCCURRED. HENCE, IT WAS NECESSARY FOR ME TO GO THROUGH THE ENTIRE ARGUMENT PRESENTED BY THE STATE, TO SHOW THAT THE TAKING IS AN ENTIRE --

THERE ARE SEVERAL PLACES WHERE YOU INDICATE THAT THERE WAS, IN FACT, IMPROPER ARGUMENT, EVEN THOUGH THERE WAS NOT AN OBJECTION.

THAT IS CORRECT, JUSTICE QUINCE. I WOULD ASK THAT THE COURT, BASED ON MY ARGUMENT AND BRIEFS, REVERSE THE DEATH SENTENCE IN THIS CAUSE AND REMAND THIS CAUSE. THANK YOU, MR. CHIEF JUSTICE.

THANK YOU. THANK, MR. NUNNELLEY. NEXT CASE IS STATE OF FLORIDA