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NEXT CASE ON THE DOCKET IS THE STATE OF FLORIDA -VS- WILLIAM FREDERICK HAPP.

GOOD MORNING. I AM MICHAEL REITER, TAMPA, FLORIDA, ON BEHALF OF MR. HAPP. WE ARE HERE ON ASSUMERY MOTION FOR MR. HAPP'S MOTION --

YOU HAVE TO SPEAK UP. I CAN BARELY I HEAR YOU.

I AM SORRY, YOUR HONOR. WE ARE HERE ON APPEAL FROM THE FIFTH CIRCUIT DENYING MR. HAPP'S MOTION ON 5.50. IT IS AN ASSISTANCE OF COUNSEL ISSUE AND MOTION FOR REMARRY HEARING AND -- MOTION FOR REHEARING AND PERMIT ON MOTION FOR JURISDICTION. MR. HAPP'S 3.850 MOTION PRIMARILY SETS OUT STATEMENTS OF PROCEDURAL BAR, INSUFFICIENTLY PLED, AND FAILURE TO SHOW DEFICIENT PERFORMANCE IN PREJUDICE.

HOW ABOUT ADDRESSING YOUR MOTION TO RELINQUISH JURISDICTION FIRST, BECAUSE WE HAVE GOT TO DEAL WITH THAT.

OKAY. THAT PARTICULAR -- THIS CASE WAS PRIMARILY A CIRCUMSTANTIAL EVIDENCE CASE. THE PRIMARY --

TELL US WHAT YOUR MOTION TO RELINQUISH JURISDICTION IS AND WHAT IT ASKS FOR AND THEN GIVE US THE --

OKAY. THE MOTION TO RELINQUISH JURISDICTION DEALS WITH TWO WITNESSES WHO TESTIFIED AT MR. HAPP'S TRIAL. MR. MILLER WAS A PRIMARY WITNESS FOR THE STATE THAT TESTIFIED THAT MR. HAPP HAD CONFESSED THE OFFENSE TO HIM IN JAIL. INVESTIGATORS FOR OUR OFFICE HAD A CONVERSATION WITH MR. MILLER AT HIS -- IN PRISON, WHERE HE IS LAECKT -- WHERE HE IS LOCATED, AND HE HAS RECANTED THAT ORIGINAL TESTIMONY, AND INDICATED THAT HIS ATTORNEYS, AS WELL AS ENFORCEMENT OFFICERS, HAD PROVIDED HIM WITH ALL OF THE INFORMATION TO WHICH HE TESTIFIED TO AT TRIAL, AND THAT IS THE CRUX OF OUR MOTION.

HE IS IN OKLAHOMA?

YES. IN KANSAS.

IS IT YOUR INTENT TO BRING HIM BAB HERE, TO FLORIDA?

YES, JUDGE.

IS HE WILLING TO DO THAT?

TO MY UNDERSTANDING, HE IS WILLING TO TESTIFY, GIVEN HIS CONCERN FOR PROTECTION.

WHEN YOU SAID YOUR UNDERSTANDING, WHAT DOES THAT MEAN? YOU HAVEN'T TALKED TO HIM PERSONALLY?

I SPOKE TO HIM ON THE PHONE, WHILE INVESTIGATORS WERE THERE, IN HIS REQUEST TO ME AS TO WHAT I COULD DO. I INDICATED THAT I COULD FILE A MOTION FOR INJUNCTION FOR THE COURT TO SEE THAT HE WAS NOT CONTACTED BY ANYBODY, BY LAW ENFORCEMENT OR ANYONE ELSE, TO SECURE HIS TESTIMONY.

WHAT DOES HE MEAN "PROTECTION"?

HE IS OF THE BELIEF THAT, IF HE REWANTS HIS TESTIMONY, HIS -- IF HE RECANTS HIS TESTIMONY, HIS PHYSICAL WELL-BEING MIGHT BE IN JEOPARDY. HAD WAS INJURED BY INMATES IN JAIL AT THE TRIAL IN KANSAS, AND IS HE CONCERNED FOR HIS WELFARE. AS AN INMATE, HE IS CONCERNED THAT THERE MAY BE RETALIATION BY THE STATE.

I AM SORRY. YOU SAID BY THE STATE?

YES, YOUR HONOR.

WOULD THE PURPOSE OF THE RELINQUISHMENT BE TO AMPLIFY ON THE CLAIMS YOU PREVIOUSLY FILED, OR WOULD THIS BE A NEW MOTION, BASED ON NEWLY-DISCOVERED EVIDENCE, BEING THE RECANTED TESTIMONY OF MILLER?

COMBINATION OF BOTH. DURING THE ORIGINAL EVIDENTIARY HEARING, IT WAS ALLEGED THAT MR. MILLER WAS PROVIDING FALSE TESTIMONY. WHAT WE DIDN'T HAVE, AT THAT PARTICULAR TIME, WAS ACCESS TO MR. MILLER AND HIS NEW TESTIMONY. WHAT WE WOULD DO IS AMPLIFY THE FACT THAT THERE WERE OTHER WITNESSES WHO TESTIFIED, AT THE EVIDENTIARY HEARING, SUPPORTING WHAT MR. MILLER IS NOW SAYING, THAT HE WAS TAKEN FROM THE JAIL. HE HAD SPOKEN TO STATE AGENTS. THAT HE WAS REQUESTED TO TESTIFY AGAINST MR. HAPP, WHICH WAS --

IS THAT YOUR BRADY CLAIM?

EXACTLY.

DID YOU APPEAL THAT, THE DENIAL OF THAT, OF THE TRIAL COURT'S ORDER AS TO THAT CLAIM?

NO, YOUR HONOR, BECAUSE, TO BE PERFECTLY FRANK WITH YOU, AS FAR AS I AM CONCERNED, I DIDN'T BELIEVE THAT, BASED ON WHAT WAS PRESENTED AT THAT EVIDENTIARY HEARING AMOUNTED TO AN ABUSE OF THE COURT, BECAUSE MR. MILLER HAD NOT BEEN PREVENTED TO MAKE THAT STATEMENT. NOW MR. MILLER HAS DETERMINED TO COME FORWARD AND RECANT HIS TESTIMONY. WITHOUT THAT EVIDENTIARY HEARING, FOR ALL PRACTICAL PURPOSES, IT WAS CIRCUMSTANTIAL EVIDENCE, BASED ON INMATES WITH MR. MILLER. NONE OF THE INMATES HAD EVER SAID TO HIM THAT HE, IN FACT, LIED, SO THEY COULDN'T TESTIFY TO THAT, JUST ABOUT THE CIRCUMSTANCES THAT WERE SURROUNDING MR. MILLER'S INQUIRY INTO HIS TESTIMONY, SO I DID NOT RAISE THAT ISSUE AS AN ABUSE OF DISCRETION. HOWEVER, I DIDN'T HAVE THAT INFORMATION AT THAT TIME, EITHER.

NOW, THIS MATTER WAS AFFIRMED ON APPEAL IN '93.

YES, SIR.

AND, SO, THE MATTER WAS, THEN, HEARD IN THE TRIAL COURT IN '97. CORRECT?

IN THE EVIDENTIARY HEARING. '96. IT WAS HEARD.

WHAT WAS MILLER'S STATUS AT THAT TIME, AS REPRESENTED BY COLLATERAL COUNSEL?

MY UNDERSTANDING WAS HE WAS IN A KANSAS PRISON, DIFFERENT THAN THE ONE HE IS IN PRESENTLY, BUT IN A KANSAS PRISON.

AND WAS THERE ANY STATEMENT, AT THAT TIME, AS TO WHETHER HE HAD RECANTED HIS TESTIMONY? CONTACT?

BASED ON HIS STATEMENT, IT IS MY UNDERSTANDING THAT THE FACT WAS, AND FROM MY KNOWLEDGE THAT, AN INVESTIGATOR FROM CCR WENT TO SPEAK TO HIM. HOWEVER, THERE WAS, AND I AM SPEAKING STRICTLY FROM HEARSAY TESTIMONY FROM MR. MILLER, AND THAT IS THAT THERE WAS AN INDIVIDUAL TO CAME TOM, NOT FROM OUR OFFICE, REPRESENTING THE STATE ATTORNEY'S OFFICE, THAT SAID THAT YOU ARE NOT TO DISCUSS ANYTHING WITH THE INVESTIGATOR, AND WHEN SHE APPEARED AT THE PRISON, MR. MILLER REFUSED TO DISCUSS ANYTHING WITH HER AT THAT TIME, AND SHE LEFT. SUBSEQUENT TO OR PREVIOUS TO, I AM NOT SURE WHICH, IT IS MY UNDERSTANDING THAT MR. KING, ALONG WITH AN INVESTIGATOR, WENT TO SPEAK, PERSONALLY, WITH MR. MILLER, AT WHICH TIME A TAPE WAS ACQUIRED, AND MY UNDERSTANDING IS THAT, FROM LISTENING TO THAT TAPE, THAT MR. MILLER SAID, WELL, I SAID WHAT I SAID, AND HE DID NOT APPEAR AT THAT EVIDENTIARY HEARING, BUT THE TAPE WAS SUBMITTED BY THE TAPE TO SUBSTANTIATE THE FACT THAT HE WAS NOT GOING TO CHANGE HIS TESTIMONY. ONE OF THE THINGS THAT NEEDS TO BE RECOGNIZED IS THAT, WHEN YOU ARE A DEFENSE ATTORNEY, YOU DON'T ALWAYS HAVE THE SOMEWHAT HIDDEN POWER OF THE STATE TO INFLUENCE PEOPLE TO TESTIFY, CHANGE THEIR STATEMENTS OR EVEN COME FORWARD. OUR ONLY AMMUNITION IS THE PERSISTENCE ANTENNASITY OF GOING BACK TO TALK TO THESE INDIVIDUALS -- AND THE TENACITY OF GOING BACK TO TALK TO THESE INDIVIDUALS. MR. MILLER HAS DETERMINED, IN HIS STATEMENT, THAT HE HAS DETERMINED WHAT HE DID WAS WRONG.

WHAT IS ALLEGED HERE, IN THIS MOTION FOR RELINQUISHMENT, IS THAT MILLER IS GOING TO RECANT HIS TESTIMONY?

THAT IS MY UNDERSTANDING.

WHAT DOES THE SPECIFIC ALLEGATION, IN, BEFORE THIS COURT, AS TO WHEN CCR LEARNED THAT MILLER SAID HE WAS GOING TO RECANT HIS TESTIMONY?

THE FIRST TIME THAT WE --

WHAT IS THE ALLEGATION? WHAT IS IN THE RECORD?

THE 18th OF AUGUST.

18th OF AUGUST OF THIS YEAR.

I BE LOOK HE HAVE -- I BELIEVE THAT'S CORRECT. IT WAS THE FIRST TIME THAT HE CAME FORWARD AND GAVE A STATEMENT. IT WAS RECORDED.

AND WHEN DOES THE RECORD INDICATE THAT MILLER WAS LAST CONTACTED BY CCR?

AUGUST 18.

AUGUST 18.

YES, SIR. WITH REGARD TO THE MOTION OF THE 3.8.

AND THE ORDER OF THE COURT -- -- OF THE 8.850 AND THE ORDER OF THE COURT --

I AM SORRY. YOU SAID AUGUST 30?

NO. AUGUST 18.

AND IS THERE ANY REASON THAT THIS MOTION TO RELINQUISH IS JUST GETTING TO THE COURT?

AS THIS COURT MAYBE SHOULD BE AWARE IS THAT INVOLVEMENT FOR THE LAST THREE MONTHS HAS BEEN EXTREMELY INVOLVED WITH A WARRANT CASE, PRESENTLYLY, AND THIS IS THE FIRST OPPORTUNITY, FROM THE DATE THAT I RECEIVED THAT, IN ORDER TO SUBMIT IT IN WRITING BEFORE THIS COURT. MY TIME CONSTRAINTS ON THAT WARRANT HAS BEEN EXTREMELY, AND I AM SURE THE COURT IS AWARE OF IT, AS OF THE RECORD, IT IS THE FIRST OPPORTUNITY THAT I HAD TO PUT IT ON PAPER. THE 3.850 MOTION ORDER, DENYING, ESPECIALLY WITH REGARD TO THE INEFFECTIVE ASSISTANCE OF COUNSEL, SPECIFICALLY STATES SITUATIONS OF DEFICIENT PERFORMANCE AND PREJUDICE WAS NOT ALLEGED, PROCEDURALLY BARRED AND INSUFFICIENTLY PLED. BUT THERE WERE NO FACTS IN THE ORDER EXPLAINING WHY THERE WAS A DEFICIENCY OR WHY THERE WAS NO PREJUDICE THAT WAS STATED, WITH THE INEFFECTIVE ASSISTANCE OF COUNSEL TO --

DIDN'T THE TRIAL COURT, IN THE ASSISTANCE TO THE PENALTY PHASE COUNSEL, SAY THAT THE TRIAL COURT WOULD CONSIDER A HEARING, BUT THAT THE TRIAL COURT REQUIRED THE DEFENDANT TO AMEND, AND THAT WAS IN JULY OF 1996, AND THEN THE NEXT THING HAPPENS IS THE EVIDENTIARY HEARING IN FEBRUARY OF 1997, SO THERE WAS AN OPPORTUNITY, IF GUIDANCE WAS NEEDED, WASN'T THAT, REALLY, WHEN COUNSEL FOR MR. HAPP SHOULD HAVE COME BACK AND SAID WE DON'T KNOW WHAT ELSE WE SHOULD BE PLEADING OR SOMETHING TO THAT EFFECT? I MEAN, YOU CERTAINLY AGREE THAT THERE IS VERY LITTLE SPECIFICITY IN THE ORIGINAL PLEADING.

YES. I DO AGREE. BUT LET ME SEE IF I CAN EXPLAIN TWO REASONS WHY THAT MAY HAVE OCCURRED. ONE OF THE SITUATIONS OF 3.850, AS STATED, IT SAYS A BRIEF STATEMENT OF THE FACTS, WHICH CAUSE SOME KIND OF CONFUSION BETWEEN THE TRIAL ATTORNEYS AND THE COURTS. FREQUENTLY WHAT HAPPENS IS, BY PRESENTING JUST SUFFICIENT INFORMATION WHICH WOULD GRANT AN EVIDENTIARY HEARING IS ONLY PROVIDED IN THE 3.850 MOTION. FREQUENTLY IT IS BECAUSE OF THE INVESTIGATION SOMETIMES DOESN'T BEGIN UNTIL AN EVIDENTIARY HEARING IS EVEN GRANTED. THE SECOND REASON IS, THE COURT MAY BE AWARE OF CIRCUMSTANCES THAT WERE PLED IN 3.850 WITH REGARD TO FUNDING. IT IS ON THE RECORD WITH REGARD TO THE COURT EVEN PERMITTING MONIES TO BE EXPENDED BY THE COUNTY FOR AEVED YEAR HEARING TO EVEN HAVE OCCURRED. THIS IS DURING A PERIOD OF TIME WHERE THERE WAS, NOW, A SLOWDOWN, IF YOU WILL, OF CCR, -VS- THE CREATION OF CCRC. -- VERSUS THE CREATION OF CCRC. IT COULD HAVE BEEN, PERHAPS, PLED BETTER. I DON'T DISAGREE. BUT OVER THE PAST, THIS COURT HAS BEEN SUBSTANTIALLY LENIENT, WITH REGARD TO GIVING THE BENEFIT OF THE DOUBT, WITH REGARDS TO AN EVIDENTIARY HEAR HEARING IN PENALTY MATTERS. THERE IS NO QUESTION, AS REGARDS TO THE PENALTY PHASE OF THIS CASE, THERE WAS NO PERSON, OTHER THAN THE ONE PERSON THAT HE HAD A CONVERSATION WITH --

BUT BETWEEN JULY, WERE YOU THE COUNSEL?

NO.

YOU HAD THAT EVIDENTIARY HEARING IN FEBRUARY. WHY WASN'T THERE A FURTHER SHOWING, WHEN YOU KNEW AT THAT TIME FOR INVESTIGATION, YOU KNEW THAT THE GENERIC CCR, AN EVIDENTIARY HEARING, SOME FURTHER SHOWING TO THE TRIAL COURT, IN FEBRUARY 1997, THIS IS WHAT WE HAVE, NOW, TO DOCUMENT INEFFECTIVE ASSISTANCE OF PENALTY-PHASE COUNSEL. WE ARE HERE, NOW, TWO YEARS LATER, AND YOU KNOW, AS TO WHETHER TO SEND THESE CASES BACK, THERE HAS BEEN TWO YEARS THAT HAVE JUST, YOU KNOW, BEEN WASTED TIME ON US.

UNFORTUNATELY I DON'T KNOW SPECIFICALLY HOW TO ANSWER THAT QUESTION, BECAUSE I WASN'T PRIVY TO WHAT HAD TAKEN PLACE. I CAN ONLY GO BY WHAT IS ON THE RECORD. I DON'T KNOW, FOR INSTANCE -- I DO KNOW THAT, FOR SPECIFICS ON THE RECORD, THERE WAS NO SPECIFIC DATE THAT WAS SET, FOR THE PURPOSE OF THE AMENDMENT. I CAN'T SAY WHETHER OR NOT THAT WAS A CONSIDERATION FOR THE COUNSEL THAT HANDLED IT AT THAT TIME, BUT THE COURT WAS AWARE OF THE FACT THAT THE ATTORNEYS DID NOT ACQUIRE ANY EXPERTS WHO DID ANY INVESTIGATIVE BACK GROUND, DID NOT OBTAIN ANY SCHOOL RECORDS, DID NOT OBTAIN ANY RECORDS, AND THOSE WERE NOT PRESENTED AT THE TIME OF THE TRIAL AND NOT AS FAR AS THE COURT WAS CONCERNED. WITH REGARD TO TRIAL SITUATIONS, BEING THAT THIS WAS, IN FACT, A CIRCUMSTANCE CASE, THE COUNSEL NEVER ASKED FOR ANY DNA SITUATION, WITH REGARD TO ACQUIRING AN EXPERT TO MAKE A DETERMINATION. THERE WAS NO GLASS EXPERT THAT WAS ACQUIRED.

DO YOU HAVE, NOW, EVIDENCE, THROUGH EXPERTS, THAT A DNA EXPERT WOULD REVEAL THAT YOUR CLIENT'S INNOCENCE?

WELL, I FILED A MOTION FOR REHEARING SUBSEQUENT TO THE COURT ENTERING AN ORDER, INDICATING, THROUGH INVESTIGATION INFORMATION, THAT HAD ESTABLISHED THAT THERE WAS A SECOND SAMPLE OF DNA EVIDENCE THAT WAS AVAILABLE DURING THE TIME OF THE TRIAL THAT WAS HELD BY DR. SCHUTZ. THAT INFORMATION WAS NOT GIVEN TO THE DEFENSE COUNSEL. I AM NOT SURE THAT THE ATTORNEY HAD KNOWLEDGE, AT THAT TIME, THAT THERE WAS A SECOND SAMPLE. WHAT HAD BEEN ACKNOWLEDGED ON THE RECORD WAS THAT, WHEN THE FIRST SAMPLE WAS SENT TO LIFE QUOTES, THEY WERE UNABLE TO MAKE A DETERMINATION IN 1986. HOWEVER, IT WAS ACKNOWLEDGED BY LIFE QUOTES THAT THERE WAS ONE PARTICULAR AGENCY OUT IN CALIFORNIA, WHICH THE STATE HAS ACKNOWLEDGED, THAT COULD POSSIBLY DO A DNA DETERMINATION, BACK AT THAT PERIOD OF TIME, ON SUCH A SMALL SAMPLE, BUT THEY HAD TAKEN THE SAME SAMPLE THAT LIFE QUOTES COULD NOT WORK ON AND SEPTEMBER IT OUT TO CALIFORNIA. COUNSEL WAS UNABLE, BASED ON THAT SMALL SAMPLE, TO MAKE A DETERMINATION, BUT UNKNOWN TO ANYBODY EXCEPT DR. SCHUTZ, THAT THERE WAS ANOTHER SAMPLE, AND HE DID NOT INFORM COUNSEL, STATE OR OTHERWISE, THAT THERE WAS ANOTHER SAMPLE THAT COULD HAVE BEEN SENT TO THE ORGANIZATION FOR PURPOSES OF ADDITIONAL DETERMINATION. THERE MAY BE ADDITIONAL DNA EVIDENCE OUT THERE AT THIS PARTICULAR POINT IN TIME.

WHAT ARE YOU RAISING THIS ARGUMENT UNDER? THE BRADY ARRESTING UNIT OR A NEW UNDERSTANDING?

AT THE TIME IT WAS BOTH, IF THERE IS, ALSO, AN INNOCENCE CLAIM. IF, IN FACT, THERE WAS EVIDENCE AVAILABLE THAT WOULD EXONERATE MR. HAPP, AS EVIDENCE, WOULD EXONERATE, OBVIOUSLY, UNDER THE BRADY CLAIM. IT WAS NEVER DETERMINED, UNTIL WE FOUND OUT, SPEAKING TO DR. SCHUTZ, THAT HE HAD ANOTHER SAMPLE THAT WAS VIRTUALLY DESTROYED, WHEN HE LEFT HIS OFFICE. HOWEVER, WE DON'T KNOW, IF, AS MATTER OF COURSE, IF THE STATE KNEW THAT DR. SCHUTZ HAD ALWAYS MAINTAINED A SECOND SET OF DN A OR EVIDENCE THAT HE FOUND. ACCORDING TO DR. SCHUTZ, THAT IS WHAT HE ALWAYS DID. HE KEPT A SECOND PIECE OF EVIDENCE. I WOULD HOLD FOR THE REMAINDER OF MY TIME.

SEATED WITH ME IS MR. BRAD KING, ASSISTANT STATE ATTORNEY FOR THE FIFTH JUDICIAL CIRCUIT OF FLORIDA. I AM KENNETH NUNNELLEY, ASSISTANT ATTORNEY GENERAL FOR THE STATE OF FLORIDA. LET'S TALK ABOUT THE MOTION FOR REHEARING. THE FACTS, AND I PUT THAT IN QUOTATION MARKS AND USE THE TERM EXTREMELY LOOSELY, THAT ARE SUPPOSEDLY CONTAINED IN MILLER'S UNSWORN HEARSAY STATEMENT ARE PALPABLY FALSE. THEY ARE NOT TRUE. THAT IS ALL THAT NEEDS TO BE, REALLY, SAID, ABOUT MR. MILLER'S STATEMENT.

BUT HOW DO WE KNOW THAT?

BECAUSE, JUSTICE QUINCE, MILLER ALLEGES THAT MR. KING HAD CONTACT WITH HIM DURING THE INVESTIGATORY STAGE OF THIS CASE. THE FACT OF THE MATTER IS MR. KING WAS NOT IN THE STATE ATTORNEY'S OFFICE DURING THE PENDENCY OF THIS CASE. MR. KING WAS RUNNING FOR ELECTION. MR. KING WAS SWORN IN AS THE STATE ATTORNEY THE WEEK BEFORE HAPP'S FIRST TRIAL BEGAN. HE WAS NOT EVEN AROUND THE STATE ATTORNEY'S OFFICE AT THE TIME THAT MILLER ALLEGES ALL OF THESE THINGS TOOK PLACE.

IS THIS IN THE RECORD?

NO, YOUR HONOR. IT IS NOT. THAT IS BECAUSE, YOUR HONOR, I WAS HIT WITH A MOTION TO RELINQUISH JURISDICTION THAT HAD BEEN HELD BY OPPOSING COUNSEL FOR OVER A MONTH FROM THE TIME HE LEARNED OF THE FACTS ALLEGED IN THAT MOTION. UNDER THOSE TIME CONSTRAINTS, THERE IS NO RATIONAL WAY TO ADEQUATELY RESPOND TO IT, GIVEN THE PRESS OF PREPARATION FOR ORAL ARGUMENT AND THE OTHER MATTERS THAT I AM RESPONSIBLE FOR, WHICH, COINS DEPARTMENTLY, ARE THE SAME MATTERS FOR WHICH MR. REITER IS RESPONSIBLE FOR. HAD THE MOTION BEEN FILED TIMELY, RATHER THAN BEING HELD UNTIL THE LAST POSSIBLE MINUTE, WE COULD HAVE, PROBABLY, GOTTEN SOMETHING INTO THE RECORD. I WOULD SUGGEST THAT, I AM SURE THERE ARE RECORDS IN THE SECRETARY 6 STATE'S -- IN THE SECRETARY OF STATE'S OFFICE THAT SUBSTANTIAL CREATE -- THAT SUBSTANTIATE WHEN MR. KING WAS IN OFFICE --

ARE YOU REQUESTING AN EXTENSION OF TIME TO RESPOND TO THE MOTION?

YOUR HONOR, I WOULD LIKE THE OPPORTUNITY TO SUBMIT, PERHAPS, AN ADDITIONAL FILING, IF I CAN COME UP WITH A DOCUMENT THAT WOULD, PERHAPS, BE APPROPRIATE FOR JUDICIAL NOTE TOYS SUBSTANTIATE THE DATES ON WHICH MR. KING LEFT THE STATE ATTORNEY'S OFFICE AND THE DATES ON WHICH HE CAME BACK. I THINK I CAN DO THAT WITHOUT DELAYING THE PROCEEDINGS UNDULY, AND I AM NOT GOING TO ASK FOR ADDITIONAL TIME BEYOND THAT, BUT I WOULD ASK FOR THE OPPORTUNITY TO FILE A SUPPLEMENTAL DOCUMENT OF THAT SORT.

IF, RATHER THAN RELINQUISH, IF IT IS NOT SO INTERRELATED WITH THE ISSUES ON APPEAL, SINCE THE BRADY ISSUE WASN'T RAISED, IT SOUNDS LIKE IT IS A COLORABLE, NEWLY-DISCOVERED EVIDENCE BASED ON RECANTED TESTIMONY, ISN'T THE BETTER PLACE TO TEST THE ACCURACY OF THAT IN THE TRIAL COURT, NOT IN THIS COURT?

YOUR HONOR, THAT IS-KNOW THE AND EXTRACT -- YOUR HONOR, IN THE ABSTRACT THAT IS TRUE. IN THIS CASEY AM NOT SURE IT IS. WHAT THE DEFENSE IS ASKING YOU TO DO -- IN THIS CASE, I AM NOT SURE IT IS. WHAT THE DEFENSE IS ASKING YOU TO DO. WHAT THEY ARE ASKING THIS COURT TO ENDORSE IS THAT A UNSWORN STATEMENT THAT IS CLASSIC HEARSAY, WHICH CONTAINS NO INDICIA OF RELIABILITY IS A BASIS FOR THIS COURT PUTTING THE BRAKES ON A CAPITAL MURDER CASE AND SENDING IT BACK FOR FURTHER PROCEEDINGS. I DON'T --

WE HAVEN'T SET A STANDARD -- DO WE HAVE A SET OF STANDARDS FOR THIS TYPE OF EVIDENCE, IN ANY OF OUR OPINIONS?

YOUR HONOR, I AM NOT SURE IF THE COURT HAS EVER SET OUT A STANDARD FOR IT. THEY TYPICALLY COME, HOWEVER, IN THE CONTEXT OF EITHER AN AFFIDAVIT OR A STATEMENT UNDER OATH. THE SPAZIANO CASE COMES TO MIND, AND THAT WAS ONE THAT I BELIEVE WAS AN AFFIDAVIT. IT DOESN'T MAKE SENSE FOR THE DEFENSE TO COP UP HERE, ASKING THIS COURT TO TAKE SOME ACTION ON THAT KIND OF A STATEMENT! WE DON'T KNOW ANYTHING ABOUT THE CIRCUMSTANCES OF THE TAKING OF THAT STATEMENT. IF YOU READ THE STATEMENT, IT IS SUBSTANTIALLY LEADING. ONE IS SOMETIMES LED TO WONDER WHETHER THE CCR INVESTIGATOR IS TESTIFYING AND MILLER IS NODDING HIS HEAD UP AND DOWN, BUT THE FACT OF THE MATTER IS THIS STATEMENT IS INSUFFICIENT TO DO ANYTHING. WE DON'T KNOW, WHILE WE MAY HEAR IN REBUTTAL, WHETHER OR NOT CCR SPOKE WITH MILLER AT SOME TIME PRIOR TO AUGUST THE 18th. IF THEY DID NOT, AND I WOULD SUGGEST THAT THAT IS A, CERTAINLY, A SIGNIFICANT THING TO THE COURT'S ANALYSIS, THEN THE QUESTION BECOMES HAVE THEY EXERCISED DUE DILIGENCE IN WAITING TWO AND-A-HALF YEARS TO GO TALK TO THIS MAN, IF THEY ARE GOING TO? AND LET'S NOT FORGET CCR STIPULATED, AT THE EVIDENTIARY HEARING IN THIS CASE, THAT MILLER WOULD NOT CHANGE HIS TESTIMONY. THEY PRESENTED A SERIES OF OTHER INMATE WITNESSES WHO TESTIFIED TO ANOTHER VERSION OF HOW MILLER CAME TO GIVE HIS TESTIMONY AND, IN FACT, AT LEAST ONE AND, I BELIEVE MORE OF THOSE WITNESSES DID, IN FACT, TESTIFY BEFORE JUDGE LOCKETT THAT MILLER LIED WHEN HE TESTIFIED AGAINST HAPP.

IN ALL DUE RESPECT TO WHAT YOU ARE SAYING, NOW WE ARE GETTING TO THE MERITS OF WHETHER THIS WOULD BE CLEARLY CLEARLY-DISCOVERED NEW EVIDENCE AND WHETHER OR NOT THE CCR EXERCISED DUE DILIGENCE. YOU MAY BE RIGHT THAT WHETHER OR NOT THIS IS IN THE RIGHT FORUM, AND YET FOR US TO TRY TO MAKE THIS DETERMINATION, BASED JUST ON THIS MOTION, I DON'T SEE THAT WE WOULD HAVE ENOUGH FACTS TO MAKE THE DETERMINATION WHETHER THEY EXERCISED DUE DILIGENCE. IF A GUY DECIDES, TWO YEARS AFTER, TO RECANT, FOR WHATEVER REASON, THAT HAS GOT TO BE TESTED BY -- SEPARATELY, IN A SEPARATE PROCEEDING, DOESN'T IT?

YES, MA'AM. AGAIN, BUT, AGAIN, IN THE ABSTRACT, BUT LET'S -- I AM NOT TRYING TO DUCK YOUR QUESTION, BUT IT IS -- THIS IS A RATHER CONVOLUTED CAN OF WORMS, IF YOU WILL, THAT ARE -- OR AT LEAST IT APPEARS TO BE SO, ON THE FACE OF IT. I AM NOT SURE IT IS REALLY AS COMPLICATED AS IT SOUNDS. AND LET ME POINT OUT SOME THINGS TO YOU FROM THE EVIDENTIARY HEARING THAT WAS CONDUCTED, ALREADY, IN THIS CASE, THAT, AGAIN, GO TO THE PHYSICAL IMPOSSIBILITY OF THE STATEMENTS CONTAINED IN THIS TRANSCRIPT THAT WE HAVE THAT IS BEFORE THE COURT.

BUT WHAT WOULD BE THE MINIMUM STANDARDS THAT YOU WOULD REQUIRE TO GET IT BACK TO AN EVIDENTIARY HEARING?

YOU COMPLAIN THAT IT IS HEARSAY AND THIS TYPE OF THING. WELL, OBVIOUSLY IT IS YOUR POSITION THAT IT SHOULDN'T BE DONE ON THAT, BUT WHAT WOULD BE YOUR MINIMUM STANDARDS, FOR IT TO BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE THAT IS THE PROPER FORUM, IF WE ARE GOING TO HAVE AN EVIDENTIARY HEARING.

WELL, YOUR HONOR, I THINK THAT IS SOMETHING THAT WE NEED TO FLESH OUT.

THAT IS WHAT WE ARE ASKING YOU.

I AM GOING TO TRY, YOUR HONOR. THE POINT IS -- MY POINT IS, AND THIS IS KIND OF MORE OF A POLICY ISSUE THAN IT IS, YOU KNOW, AN ISSUE THAT IS RESTRICTED TO THE FOUR CORNERS OF THIS CASE, BUT THE STATE CAN'T BE PUT IN THE POSITION OF HAVING TWO WAYS TO LOSE A 3.850 PROCEEDING. I MEAN, EFFECTIVELY WE CAN LOSE A 3.850 ON THE MERITS, ON THE FACTS AFTER AN EVIDENTIARY HEARING OR WHATEVER. THAT IS ONE THING. BUT WHAT WE HAVE BEFORE THIS COURT, TODAY, IS SOMETHING ENTIRELY DIFFERENT. WE HAVE AWAY FOR THE COURT OR, RATHER, FOR THE STATE TO EFFECTIVELY LOSE A PROCEEDING IN THE SENSE THAT WE ARE FACED WITH A REMAND, BASED UPON AN UNSWORN, UNNOTARIZED, UNAUTHENTICATED TRANSCRIPT! OF AN INTERVIEW THAT WE KNOW NOTHING ABOUT THE CIRCUMSTANCES OF. WE KNOW -- I KNOW THAT IT WAS A LENGTHY INTERVIEW. I WOULD SUGGEST TO THE COURT AND WOULD REPRESENT TO THE COURT THAT THE TRANSCRIPT BEFORE THIS COURT DOES NOT INCLUDE ALL OF THAT INTERVIEW.

WELL, COULD WE GET --

BUT --

COULD MR. REITER HAVE, WHILE THE CASE WAS PENDING IN THE SUPREME COURT, HAVE FILED, SEPARATELY, A MOTION IN THE TRIAL COURT FOR -- BASED ON NEWLY-DISCOVERED EVIDENCE? ISN'T IT APPROPRIATE THAT HE WOULD HAVE TO HAVE ASK US TO RELINQUISH JURIES GITION FOR THAT PURPOSE -- JURISDICTION FOR THAT PURPOSE? ISN'T THAT THE PROPER THING FOR HIM TO DO?

YES, YOUR HONOR. RIGHT NOW --

THIS CASE HAS ALREADY BEEN DISPOSED OF, AS FAR AS THE ISSUES THAT CAME BEFORE IT, AND IT CAME TO THE CCR'S ATTENTION THAT THIS PERSON HAD RECANTED. WHETHER IT IS TOTALLY FALSE, WE MIGHT HAVE EVERY REASON TO CONVINCE A TRIAL COURT THAT IT IS TOTALLY FALSE. WOULDN'T THE APPROPRIATE THING BE TO FILE A MOTION, AND NOW WE ARE ASKING COULD THEY SIMPLY FILE A MOTION, TAMPA UNSWORN STATEMENT. ARE YOU SAYING THAT THAT MOTION, ITSELF, WOULD BE DEFICIENT, BECAUSE IT HAS TO HAVE A SWORN AFFIDAVIT ATTACHED TO IT OR BE UNDER OATH. IS THAT A REQUIREMENT RIGHT NOW OF THE RULES FOR NEWLY-DISCOVERED EVIDENCE MOTIONS?

I AM NOT ENTIRELY SURE, OFF THE TOP OF MY HEAD, ABOUT THE TRIAL LEVEL REQUIREMENT FOR PLEADING. I AM NOT ACTUALLY PREPARED TO GO INTO THAT. THAT IS NOT RIGHT ON THE TOP OF MY HEAD, AND I REALLY DON'T WANT TO GO DOWN THAT ROAD, BUT I WOULD SUGGEST, JUSTICE PARIENTE, THAT IF THIS COURT IS GOING TO TAKE THE STEP OF REMANDING OR RELINQUISHING JURISDICTION AT THIS STAGE OF A PROCEEDING, AT THE VERY MINIMUM, THERE OUGHT TO BE, EITHER, A SWORN MOTION, AND THERE IS, OF COURSE, AN OATH REQUIREMENT ATTACHED TO A 3.850 MOTION, ITSELF, OR SOME SORT OF INDICIA OF RELIABILITY TO SUPPORT IT. AND, YOU KNOW, AGAIN, WE ARE LOOKING AT A HEARSAY STATEMENT THAT IS, IN MANY RESPECTS, DIRECTLY REBUTTED BY TESTIMONY AT THE EVIDENTIARY HEARING THAT IS ALREADY IN THE RECORD.

WHEN YOU SAY A SWORN MOTION, WHAT DO YOU MEAN? IF THERE IS AN AFFIDAVIT IN THERE FROM SOMEBODY THAT SAYS I HEARD MILLER SAY, AND I SWEAR TO THIS, WOULD THAT BE SUFFICIENT TO GET IT DONE?

WELL, A 3.850 MOTION HAS TO BE VERIFIED BY THE DEFENDANT, AND, NOW, THAT WAS WHAT I WAS ACTUALLY REFERRING TO, BUT, AGAIN, I THINK THERE NEEDS TO BE, IF THIS COURT IS GOING TO SET A POLICY FOR THE PRESENTATION OF A NEWLY-DISCOVERED EVIDENCE CLAIM, I THINK IT CERTAINLY REQUIRES MORE THAN AN UNSWORN, UNVERIFIED, AND ESSENTIALLY UNVERIFIABLE STATEMENT. I HAVE A LOT OF PROBLEMS WITH THE TIMING OF IT. I HAVE A LOT MORE PROBLEMS WITH THE HEARSAY NATURE OF IT, AND IT DOESN'T MAKE SENSE TO PUT THE STATE IN THE POSITION THAT THE DEFENDANT CAN COME, RUN INTO THE COURT, TWO AND-A-HALF YEARS AFTER AN EVIDENTIARY HEARING, BASED UPON A WITNESS WHOSE LOCATION HAS BEEN KNOWN AT ALL TIMES TO THEM, AND COME UP WITH A STATEMENT, SIX WEEKS BEFORE ORAL ARGUMENT, AND THEN A WEEK BEFORE ORAL ARGUMENT, COME BEFORE THIS COURT AND SAY HOLD T I WANT TO GO BACK. YOU ALL WAIT! THAT JUST IS NOT AN ORDERED SYSTEM OF JUSTICE.

THAT IS A GOOD ARGUMENT, BUT IF WE WANTED TO PUT THIS IN AN ORDER, IF WE WANTED TO RULE FOR YOU AND PUT IT IN AN ORDER, IT IS A LITTLE SHAKY, WHAT HE IS COMING IN WITH. WHAT WOULD WE SAY? WOULD WE SAY THAT IT HAS TO BE SWORN TO? THAT IT HAS TO BE A CERTAIN NUMBER OF DAYS BEFORE, OR HAVE YOU THOUGHT ABOUT THIS AT ALL?

YOUR HONOR, I THINK THERE HAS GOT TO BE SOME RATIONALITY TO IT. IF, FOR SOME REASON, AND I AM SURE THAT -- I KNOW THE CIRCUMSTANCE COULD EXIST, WHERE EVIDENCE CAME TO LIGHT, TRULY DID COME TO LIGHT ON THE EVE OF ORAL ARGUMENT, THAT WAS APPROPRIATE FOR WHAT IS GOING ON HERE. THAT IS NOT THE CASE WE HAVE GOT IN THIS PARTICULAR PROCEEDING. WHAT WE HAVE HERE IS EVIDENCE THAT WAS HELD BACK. THERE IS NO REASON THAT --

IT WAS HELD BACK. FOR -- FROM THE MIDDLE OF AUGUST UNTIL NOW?

YES, YOUR HONOR. I DON'T KNOW WHETHER CCR WAS IN CONTACT WITH MILLER BEFORE AUGUST THE 18th OR NOT. I SIMPLY DON'T KNOW THAT. I DON'T KNOW IF THERE HAVE BEEN ANY OTHER ATTEMPTS TO INTERVIEW MILLER. I DON'T KNOW --

DON'T WE KNOW THAT THEY WERE? I THOUGHT THAT IT WAS PART OF THE RECORD, IN THIS CASE, THAT A COUPLE OF YEARS AGO, YOU ALL STIPULATED THAT MILLER WOULD STICK BY WHATEVER STATEMENT HE MADE BEFORE OR THAT HE --

I AM SORRY, YOUR HONOR. I MAY HAVE MISSED -- MAY HAVE NOT BEEN ENTIRELY CLEAR ON WHAT I MEANT. I DON'T KNOW IF THERE WAS ANY CONTACT BETWEEN CCR AND MILLER BETWEEN THE END OF THE EVIDENTIARY HEARING AND AUGUST. THAT TWO AND-A-HALF YEAR PERIOD, WE DON'T KNOW WHAT HAPPENED. WE DON'T EVEN KNOW WHO CONTACTED WHOM.

THERE IS NO ALLEGATION, IN CCR'S MOTION, THAT THEY DID ANYTHING, IN RESPECT TO MILLER, BETWEEN THE TIME OF THE '97 HEARING AND THE CONTACT ON AUGUST THE 18th.

THAT IS CORRECT, YOUR HONOR.

AND, IN A 3.850 MOTION, IN ORDER TO CIRCUMVENT THE ONE YEAR PROVISION FOR TIME LIMIT, THERE HAS GOT TO BE AN ALLEGATION OF DUE DILIGENCE. IS THAT --

THAT IS CORRECT, YOUR HONOR.

-- WHAT YOU ARE SAYING?

YES, YOUR HONOR.

AND, NOW, IN SPAZIANO, ISN'T IT CORRECT THAT THIS COURT REQUIRED THERE TO BE AN AFFIDAVIT IN RESPECT TO THE FELLOW THAT WAS HYPNOTIZED WHO WAS RECANTING, OR DO YOU REMEMBER?

VAGUELY, YOUR HONOR, I CAME IN LATE, BUT YOU ARE JOGGING MY -- THAT DOES -- THAT, TO SOME DEGREE, JOGS MY MEMORY. I CAME IN SPAZIANO AT THE VERY TAIL END OF IT, BUT I BELIEVE THE FIRST TIME, AND I CERTAINLY STAND TO BE CORRECTED, I DON'T BELIEVE THERE WAS ANY KIND OF SWORN EVIDENCE OR TESTIMONY FROM DELIES YO THE FIRST TIME. -- DELISIO THE FIRST TIME.

AND IT WAS DENIED AND THE ABILITY TO FILE AN AFFIDAVIT.

THANK YOU, YOUR HONOR. I HAD FORGOTTEN SPAZIANO, EVEN THOUGH MY NAME IS ON THE OPINION, AND IT SEEMS TO ME THAT THIS CASE IS TRULY NO DIFFERENT. I MEAN, IF -- THERE HAS GOT TO BE SOME SORT OF RATIONALEITY TO THE PROCESS.

YOUR TIME IS LIMITED. ADDRESS THE QUESTION OF THE DENIAL OF AN EVIDENTIARY HEARING AS TO THE PENALTY PHASE AND BUILT GUILT PHASE, IN EFFECT OF-KNOW EFFECTIVE ASSISTANCE OF KOUNS -- INEFFECTIVE ASSISTANCE OF COUNSEL. THERE HAS NEVER BEEN AN EVIDENTIARY HEARING, IN THE CASE OF EITHER OF THOSE ISSUES.

HE HAD EVERY CANS IN THE WORLD TO GET ONE, YOUR HONOR. LET ME READ YOU THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AS IT WAS PLEADED MUCH "THE COUNSEL FAILED TO INVESTIGATE MR. HAPP'S BACK GROUND AND THEREFORE THE INFORMATION WAS LOST AND NEVER PRESENTED TO THE JURY." THAT WAS THE ALLEGATION. HE HAD FIVE MONTHS TO AMEND THAT ALLEGATION. HE WAS FOLD HE WASN'T GOING TO GET AN EVIDENCE -- HE WAS TOLD HE WASN'T GOING TO GET AEVED YEAR HEARING, BECAUSE THE COURT -- TO GET AN EVIDENTIARY HEARING BECAUSE HIS INEFFECTIVENESS OF COUNSEL CLAIM WAS IN EFFECTIVELY PLEADED, BUT THAT ALLEGATION BEGAN.

HOW IS YOUR CLAIM CONCLUSIVELY REFUTED BY THE RECORD?

CONCLUSIVELY REFUTED IS NOT THE ISSUE. THE ISSUE IS IT IS IN EFFECTIVELY PLED.

I KNOW WE ARE GOING BACK TO WHAT THE PLEADING HAS TO BE, SPECIFIC, IN ORDER TO GET AN EVIDENTIARY HEARING. THAT SAYS -- IT STATES THAT THERE IS A FAILURE TO INVESTIGATE, AND MR. REITER IS SAYING THAT THE RECORD SHOWS THAT NOTHING WAS DONE IN THE PENALTY PHASE PRESENTATION.

WELL, THERE WAS CERTAINLY MITIGATING CIRCUMSTANCES FOUND. THERE WAS CERTAINLY A MENTAL STATE EXPERT INVOLVED AT THE PENALTY PHASE.

WAS THERE ONE THAT TESTIFIED?

I DON'T REMEMBER IF DR. CROP TESTIFIED OR NOT. I BELIEVE HE HE DID TESTIFY. -- I BELIEVE HE DID TESTIFY. I DON'T BELIEVE HIS TESTIMONY WAS PARTICULARLY HELPFUL TO THE DEFENDANT, WHICH, AT MOST, WOULD SUGGEST THAT THERE WASN'T ANYTHING THERE TO PRESENT. BUT I, ALSO, POINT OUT THAT ONLY ONE OF THE TWO DEFENSE ATTORNEYS TESTIFIED AT THE 3.50 PROCEEDING, HE HAVE OWN -- AT THE 3.850 PROCEEDING, EVEN THOUGH BOTH WERE AVAILABLE, BUT THE POINT IS THAT MR. HAPP HAD EVERY OPPORTUNITY TO AMEND HIS 3.850 MOTION, TO PLEAD INEFFECTIVE COUNSEL CLAIM WITH SOME LEVEL OF SPECIFICITY. YOU CAN'T STAND UP IN THE COURTROOM AND SAY "FIFTH AMENDMENT". YOU HAVE GOT TO DO A LITTLE MORE THAN THAT, AND THE SAME GOES TO THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. INEFFECTIVE ASSISTANCE OF COUNSEL HAS TO BE MORPHED IN SO MANY WAYS THAT THERE HAS TO BE A PLEADING FOR IT, AND CITED IN THE STATE'S BRIEF, MR. HAPP FAILED TO MEET. THAT HE DID NOT AMEND, EVEN THOUGH HE WAS GIVEN THE OPPORTUNITY TO AMEND AND KNEW FULL WELL THAT HE COULD. THE FAILURE OF PROOF -- RATHER THE FAILURE OF MR. HAPP TOLL CARRY HIS "BURDEN OF PROOF" AND HIS BURDEN OF PLEADING IS NOT THE STATE'S FAULT, AND THE STATE SHOULDN'T BE PUT IN A POSITION OF LOSING A CASE BECAUSE OF IT. MY TIME IS UP. IF THERE ARE NO FURTHER QUESTIONS, I ASK THAT THE COURT AFFIRM THE DENIAL OF RELIEF.

THANK YOU. MR. NUNNELLEY. MR. REITER.

MR. REITER, YOU ARE FAMILIAR WITH OUR CASES. MILLS AND JONES. AS TO ONE-YEAR PERIOD. FROM THE TIME OF DISCOVERY, TO FILE A NEWLY-DISCOVERED EVIDENCE CLAIM.

MY UNDERSTANDING --

BE YOU ARE FAMILIAR WITH THE FACT THAT THE RULE -- AND YOU ARE FAMILIAR WITH THE FACT THAT THE RULE SPECIFICALLY SAYS THAT THERE IS -- THAT THE ONLY TIME THAT THERE CAN BE SOMETHING FILED AFTER THAT PERIOD OF TIME IS FOR FACTS ON WHICH THE CLAIM IS TO HAVE BEEN -- ON WHICH THE CLAIM IS PREDICATED WERE UNKNOWN TO THE MOVANT OR THE MOVANT'S ATTORNEY AND COULD NOT HAVE BEEN ASCERTAINED BY THE EXERCISE OF DUE DILIGENCE. NOW, THERE IS NOTHING IN THE MOTION THAT YOU FILED THAT INDICATES WHAT CCR DID SINCE A YEAR AGO PRIOR TO THE TIME THAT THIS MOTION WAS FILED. WOULDN'T YOU AGREE?

YES, BUT WITHIN THE STATEMENT, ITSELF. SPECIFICALLY INDICATES THAT HE HAD BEEN CONTACTED BY A CCR INDIVIDUAL AND REFUSED TO TALK TO THEM, AT THE REQUEST OF THE STATE.

IT DOES NOT SAY THAT THAT WAS DONE WITHIN THE PERIOD FROM AUGUST OF '97, DOES IT?

NO.

I GUESS YOUR POINT, THE QUESTION IS, AND, IS IF YOU DON'T HAVE, IN YOUR MOTION TO RELINQUISH, ENOUGH ALLEGATIONS, IN ORDER TO, AT THIS POINT, HAVE PLED A SUFFICIENT MOTION FOR NEWLY-DISCOVERED EVIDENCE, ISN'T THE BETTER PRACTICE HERE TO DENY YOUR MOTION TO RELINQUISH AND, IF YOU HAVE GOT A BASIS TO CLAIM NEWLY-DISCOVERED EVIDENCE, BASED ON THIS RECANTED TESTIMONY, TO PROCEED IN THE TRIAL COURT WITH IT?

ONE WAS SOUGHT. IT WAS A MOTION TO AMEND, FILED WITH THE TRIAL COURT, CONTEMPORANEOUSLY WITH THE MOTION TO RELINQUISH JURISDICTION, BECAUSE THE TRIAL COURT COULD NOT ACT ON IT, UNTIL THIS COURT GAVE IT THE OPPORTUNITY TO DO SO.

DO YOU HAVE, ATTACHED TO THAT, A SUFFICIENTLY PLED MOTION FOR NEWLY-DISCOVERED EVIDENCE? ISLAND HAVE TO REVIEW IT, TO TELL YOU THE TRUTH. I PREPARED IT AT THE SAME TIME I PREPARED THE MOTION TO RELINQUISH JURISDICTION. TO SAY WHETHER OR NOT THERE IS SUFFICIENT ALLEGATIONS IN ACCORDANCE WITH THE RULE, AT THIS TIME I WOULD HAVE TO LOOK BACK, TO SEE WHETHER IT DID OR NOT, HOWEVER, THE INFORMATION, ITSELF, BECOMING AVAILABLE AT THE TIME THAT IT DID AND THE TIME PERIOD FOR WHICH WE HAD TO FILE IT, WE -- I SPOKE TO A NUMBER OF PEOPLE IN OUR OFFICE ABOUT THE BEST WAY TO PROCEED, ANDz,c ALTHOUGH THERE MAY BE A WORD MISSING IN THE MOTION, THERE IS INFORMATION, ALTHOUGH NOT SWORN, IN THE STATEMENT, ITSELF, GIVING RISE TO KNOWLEDGE OF NEWLY-DISCOVERED EVIDENCE. WE HAD NO REASON TO BELIEVE THAT MR. MILLER WAS GOING TO CHANGE HIS TESTIMONY ON ANY5nn GIVEN DATE.

DOES THAT MEAN, THEN, THAT HE, MR. MILLER, CONTACTED YOU ALL, OR DO YOU HAVE -- DO YOU GO BACK TO PEOPLE TdAT HAVE SAID THEY ARE NOT GOING TO CHANGE THEIR TESTIMONY, EVERY SIX MONTHS? I MEAN, HOW DOES --

TRULY, TO SOME EXTENT, THAT IS THE PERSISTENCE THAT WE UTILIZE, WHEN THERE IS A QUESTION WITH REGARD TO THE INDIVIDUAL'S TESTIMONY. WE SOMETIMES GO BACK TWO OR THREE TIMES. WE DON'T HAVE THEABILITY OF THE STATE OR THE STRENGTH OF THE -- THE ABILITY OF THE STATE OR THE STRENGTH OF THE STATE TO MAKE PEOPLE TALK.

MR. MILLER, HE PROVIDED DIRECT EVIDENCE, IN THE FORM OF ADMISSIONS OR CONFESSION, MR. HAPP, THAT MR. HAPP --

IT WAS MORE THAN THAT. NOT ONLY DID HE DO THAT, BUT THE STATE RELIED ON SOME OF THE INFORMATION THAT HE PROVIDED, IN ITS CLOSING ARGUMENT TO ESTABLISH HIS CREDIBILITY FOR THE JURY OF HIS TESTIMONY, AND ACCORDING TO MR. MILLER THAT INFORMATION WAS PROVIDED BY THE STATE. WHAT HAPPENS WITH SWORN STATEMENTS, FREQUENTLY, FIRST OF ALL, AN AFFIDAVIT IS NOT PERMITTED WITH AN EVIDENTIARY HEARING, FIRST EVER ALL.

IS IT YOUR -- FIRST OF ALL.

IT -- IS IT YOUR POSITION THAT YOU COULD COME IN WITH A HEARING AND SAY THAT CCR HAS COME INTO THE KNOWLEDGE OF A WITNESS THAT SAYS THAT, AN EYEWITNESSNESS TO THE MURDER, IS GOING TO CHANGE HIS MIND AND SAY SOMETHING ELSE, AND THAT WOULD GET YOU AEVED YEAR HEARING, AND IS THAT WHAT YOU ARE PRETTY CLOSE TO RIGHT NOW? -- AN EVIDENTIARY HEARING, AND IS THAT WHAT YOU ARE PRETTY CLOSE TO RIGHT NOW?

YES. BUT ALSO AS TO WHAT TOOK PLACE AT THE EVIDENTIARY HEARING, WITH REGARD TO THIS ISSUE.

WHAT?

THERE WERE A NUMBER OF WITNESSES WHO TESTIFIED AT THIS EVIDENTIARY HEARING THAT THEY HAD BELIEF AND KNOWLEDGE THAT MR. MILLER WAS LYING WHEN HE TESTIFIED. THAT THEY WERE APPROACHED BY THE STATE WHEN HE AGREED TO TESTIFY. THAT HE WAS A SNITCH AND EVERYONE KNEW IT.

WHY DOESN'T THIS FALL BELOW A MINIMUM REQUIREMENT?

BECAUSE THIS IS THE SAME INDIVIDUAL THAT WAS UTILIZED BY THE STATE TO CONVICT THE DEFENDANT, AND HE IS, NOW, COMING FORWARD AND SAYING "I LIED", AND THE ONLY WAY TO GET TO THE CREDIBILITY OR VERY FIBLT OF THAT INDIVIDUAL IS -- OR VERIFYABILITY OF THAT INDIVIDUAL. HE WAS TAKEN TO A POLYGRAPH BY THE STATE ATTORNEY.

BUT NOTHING IS UNDER OATH HERE. THESE ARE ALL JUST VAGUE ALLEGATIONS.

BUT NONETHELESS, JUDGE, WITH REGARD TO AN AFFIDAVIT, IS IT IF HE HAD SUBMITTED AN AFTERWARDIVITY AN UNDER OATH -- AN AFFIDAVIT UNDER OATH AND DIED TOMORROW, THAT I COULD USE THAT?

NO. WHAT YOU ARE ASKING IS FOR THE COURT TO SET UP A POLICY FOR SOMETHING THAT IS SO IMPRECISE THAT ALL YOU HAVE TO DO IS SOMEBODY WOULD CONTACT CCR AND SAY, WAIT A MINUTE, IN EVERY CASE, I HAVE GOT AN EYEWITNESSNESS THAT IS GOING TO CHANGE HIS MIND NOW, AND IS EVERY CASE WOULD END UP BACK BEFORE THE TRIAL COURT IN AN EVIDENTIARY HEARING.

BUT THIS IS THE EVIDENCE WHO TESTIFIED AT THE TRIAL THAT CAUSED THE CONVICTION, AND WHEN HE COMES FORWARD AND SAYS "I LIED", WHAT MORE IS NECESSARY, OTHER THAN TO PUT HIM ON THE STAND IN AN EVIDENTIARY HEARING, TO DETERMINE THE CREDIBILITY OF THAT STATEMENT?

WELL, THERE IS SOME DUTY UPON CCR TO DEPOSE AND GET SOMETHING OF A LITTLE MORE SUBSTANCE, PERHAPS, THAN YOU HAVE HERE, TO BOLSTER YOUR MOTION.

AND THE TIMING OF THAT, RIGHT NOW, BASED ON THE FACT THAT IT WAS AUGUST 18, AND I AM INVOLVED IN A SUBSTANTIAL OTHER CASE RIGHT NOW, SLOWS DOWN THAT PROCESS, TO SOME EXTENT, AND, ALSO, ACCESS THOMAS WELL. LET ME CLOSE BY SAYING THAT DR. CROP NOT ONLY DID NOT TESTIFY AT THE PENALTY PHASE, IT WAS STATED BY DEFENSE COUNSEL THAT HE ONLY HAD ONE CONVERSATION WITH HIM AND DIDN'T INTEND TO CALL HIM.

THANK YOU. THANK YOU, COUNSEL. WE WILL TAKE IT UNDER ADVISEMENT.