THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT. MY NAME IS ANDREA NORGARD, AND I REPRESENT THE APPELLANT IN THIS CASE, EDDIE SEXTON. THIS IS A RETRIAL WHERE A SENTENCE OF DEATH WAS IMPOSED FROM HILLSBOROUGH COUNTY. I DID PREPARE THE INITIAL BRIEF AND IN THAT BRIEF RAISED FIVE ISSUES. I WOULD LIKE TO FOCUS THE ATTENTION OF THE COURT, TODAY, WITH YOUR PERMISSION, ON ISSUES ONE, TWO AND THREE, AND RELY PRIMARILY ON THE BRIEF FOR ISSUES FIVE AND FOUR, TO SOME DEGREE, AND I HAVE RESERVED FIVE MINUTES FOR REBUTTAL TIME. IN TURNING TO THE GUILT PHASE OF THIS TRIAL, THE INITIAL BRIEF RAISED ONE ISSUE, THAT BEING WHETHER OR NOT THE TESTIMONY RELATING TO THE DEATH OF MR. SEXTON'S GRANDSON WAS ADMISSIBLE IN THE TRIAL COURT. THIS COURT HAD, IN A PRIOR OPINION, WHEN TESTIMONY HAD BEEN PRESENTED IN A SIGNIFICANTLY DIFFERENT FASHION, RULED THAT, UNDER THE CONFINES OF THAT TRIAL WITHIN THAT TRIAL, WITH THE WITNESSES THAT WERE PRESENTED, THAT THIS TESTIMONY WAS ADMISSIBLE OR DID HAVE SOME RELEVANCE IN GOING TOWARD EXPLAINING WHY MR. SEXTON WOULD HAVE ASKED OR ORDERED HIS SON TO COMMIT THE MURDER OF HIS SON-IN-LAW, JOEL GOOD. HOWEVER, IN THE RETRIAL, THE TESTIMONY CHANGED, OR THERE WAS A SIGNIFICANT DIFFERENCE IN THE TESTIMONY THAT OCCURRED.

IF THERE WAS, WOULD YOU AGREE THERE WOULD BE AN OBLIGATION TO BRING THAT TO THE COURT'S ATTENTION, AT THE TIME THAT THIS TESTIMONY WAS HE LISTED?

-- WAS ELICITED?

I TRULY BELIEVE THAT THAT WAS A MISSION ON THE PART OF DEFENSE COUNSEL. OBVIOUSLY THE DEFENSE ATTORNEY HAD QUESTIONS ABOUT THIS PRIOR COURT'S OPINION. HE HAD FILED A MOTION REQUESTING THE TRIAL COURT TO MAKE SOME PRETRIAL RULINGS ABOUT WHAT WAS ADMISSIBLE, AND ESPECIALLY TO CLARIFY WHAT THE COURT WAS GOING TO LET IN. THE COURT CHOSE NOT TO RULE ON IT AT THAT TIME. DEFENSE COUNSEL DID NOT MAKE A CONTEMPORANEOUS OBJECTION, THEN, AT TRIAL.

SO THERE WAS NO RULING AND THEN THERE WAS NO OBJECTION, SO YOU AGREE IT IS NOT PRESERVED FOR APPELLATE REVIEW.

YOUR HONOR, I AGREE THAT IT WAS NOT PRESERVED BY CONTEMPORANEOUS OBJECTION. HOWEVER, I DO BELIEVE THAT THIS COURT CAN REACH THE ISSUE, UNDER A FUNDAMENTAL ERROR DOCTRINE, WHICH WOULD ALLOW THE COURT TO REVIEW IT, ABSENT THE CONTEMPORANEOUS OBJECTION.

IT IS RELEVANT EVIDENCE, IS IT NOT? IT IS AS RELEVANT IN THIS CASE AS IT WAS IN THE LAST. AS I AM UNDERSTANDING YOUR CONTENTION, IT WASN'T AS NECESSARY IN THIS CASE, BECAUSE YOU HAD WILLIE TESTIFYING, WHEN YOU DIDN'T HAVE HIM TESTIFYING IN THE LAST CASE, BUT THAT DOESN'T AFFECT A RELEVANCY ANALYSIS, DOES IT?

YOUR HONOR, I STILL BELIEVE THAT THE RELEVANCE IN THIS CASE IS QUESTIONABLE, AS TO THE DEATH OF THE INFANT. ESPECIALLY IN LIGHT OF WILLIE'S TESTIMONY. HIS DIRECT TESTIMONY, THIS TIME, THAT IN FACT IT WAS MR. SEXTON AND NOT PIXIE, WHO WAS THE PRIMARY MOTIVATE OR BEHIND THE MURDER OF MR. GOODE. WHERE I BELIEVE YOU CAN, ALSO, ARISE AS RELEVANT EVIDENCE, EVEN EVIDENCE THAT IS RELEVANT, STILL IS EXCLUDEABLE, IF IT IS PREJUDICIAL IMPACT.

DOESN'T IT GO AS MUCH TO HIS MOTIVE IN SEEING THAT THE VICTIM WAS KILLED IN THIS CASE AS IT DOES IN THE LAST? I MEAN, IT IS THE SAME THEORY OF THE CASE AND THE SAME DEFENSE. THE DEFENSE WAS THAT IT WAS PIXIE, NOT THE -- NOT MR. SEXTON THAT WAS THE ACTUAL MOTIVATE OR OF THIS CRIME. CORRECT?

THAT WAS STILL THE DEFENSE AT TRIAL. HOWEVER -- ALBEIT A DEFENSE THAT HAD CERTAINLY FAR MORE FLAWS IN IT, IN LIGHT OF WILLIE'S TESTIMONY, BUT I, ALSO, BELIEVE THAT, IN THE PRIOR TRIAL, A KEY DIFFERENCE IN THE STATE'S THEORY OF PROSECUTION WAS WHAT WAS THE MOTIVATION? WHY DID MR. SEXTON WISH TO HAVE JOEL GOOD KILLED? AND I BELIEVE THAT, IN THE PRIOR TRIAL, AND AS A RESULT OF THE OPINION ISSUED BY THIS COURT AND FLOWING FROM THAT ORIGINAL TRIAL AND THAT EVIDENCE, WAS THAT IT WAS THE DEATH OF THE BABY. THAT CAUSED JOEL TO SUDDENLY WANT TO RETURN, WANT TO LEAVE. THEREFORE THE DEATH OF THE BABY SORT OF WAS A SIGNIFICANCE EVENT THAT DECIDED TO HIS DESIRE TO LEAVE, WHICH LED TO MR. SEXTON'S DESIRE TO HAVE JOEL ELIMINATED AS A WITNESS. I THINK THE EVIDENCE IN THIS CASE WAS THAT, NO, THAT WAS REALLY NOT THE CASE, THAT JOEL'S EXPRESSIONS OF WANTING TO RETURN AND WANTING TO LEAVE BEGAN TO OCCUR WELL BEFORE THE DEATH OF THE BABY, BACK WHEN THE FAMILY WAS LIVING IN NEW PORT RICHEY. ONE COULD EASILY ASSUME THAT MIGHT HAVE BEEN DUE TO THE, CERTAINLY, LESS THAN DESIRABLE LIVING CONDITIONS THAT THE FAMILY WAS UNDER. IT COULD BE DUE TO HIS WIFE'S TREATMENT OF HE AND HIS CHILD. THERE WAS TESTIMONY THAT --

BUT YOU ARE SAYING THAT GOOD'S KNOWLEDGE OF WHAT HAPPENED TO THE BABY AND THE POTENTIAL DEVASTATING EFFECT, THAT THAT COULD HAVE ON YOUR CLIENT, IS TOTALLY IRRELEVANT HERE? WITH REFERENCE TO WHAT THE MOTIVATION WAS FOR THIS KILLING? I DON'T BELIEVE THAT THE TESTIMONY ESTABLISHED THAT GOOD HAD ANY SUSPICIONS OR ANY KNOWLEDGE WHATSOEVER THAT MR. SEXTON HAD ANYTHING TO DO WITH THE KILLING OF THE BABY. THERE WAS NO DIRECT TESTIMONY WHATSOEVER, IN FACT, THERE WAS TESTIMONY TO THE CONTRARY THAT HE WOULD HAVE BEEN ASLEEP AT THE TIME. THERE WAS NO SUGGESTION THAT HE SUSPECTED OR HAD ANY REASON TO BELIEVE THAT MR. SEXTON HAD ANYTHING TO DO WITH IT. I THINK IT WAS THE FACT THAT THE BABY HAD DIED AND THERE SEEMS TO BE NO SUGGESTION IN THE RECORD THAT MR. GOODE BELIEVED IT WAS ANYTHING OTHER THAN THE CRIB DEATH, THE ACCIDENTAL --

THERE WAS NO EVIDENCE, HERE, THAT SEXTON WAS CONCERNED ABOUT THE CONSEQUENCES TO HIM, IF GOOD LEFT, AND ALL THE THINGS THAT HAD HAPPENED CAME OUT?

I BELIEVE -- NO. MR. SEXTON WAS CLEARLY CONCERNED. IN FACT THAT WAS THE BASIS OF ONE OF THE AGGRAVATING FACTORS TO AVOID ARREST, THAT IF JOEL OR ANYONE LEFT. HOWEVER, I BELIEVE THERE IS A DISTINCTION AS TO WHY MR. SEXTON WAS CONCERNED. HE WAS NOT CONCERNED, ACCORDING TO PIXIE'S TESTIMONY AND ACCORDING TO THE TESTIMONY OF THE OTHER WITNESSES, THE OTHER CHILDREN, BECAUSE HE DID NOT BELIEVE HE HAD A ROLE, EITHER, IN THE BABY'S DEATH. IN FACT PIXIE EVEN TESTIFIED THAT HE TOLD HER YOU ARE GOING TO GET IN TROUBLE FOR THIS BUT NOT I. MR. SEXTON'S DESIRE NOT TO HAVE ANYONE LEAVE WAS TO AVOID DETECTION BECAUSE OF THE CHARGES THAT THEY WERE FLEEING FROM. THERE WAS NO INDICATION, IN ANY OF THE TESTIMONY, THAT JOEL WAS ELIMINATINGED -- ELIMINATED AS A WITNESS, BECAUSE HE HAD INFORMATION REGARDING THE BABY'S DEATH OR OUT OF FEAR THAT MR. SEXTON WOULD BE CHARGED IN THAT. IT WAS STRICTLY RELATED TO THE FACT THAT HE DID NOT WANT TO BE ARRESTED ON WHAT HE BELIEVED TO BE THE OUTSTANDING CHILD ABUSE WARRANTS, ARISING FROM THE PROBLEMS AND THE DIFFICULTIES THAT THEY HAD HAD IN OHIO. I THINK THE OTHER THING THAT WE NEED TO FOCUS ON IS, EVEN IF THIS TESTIMONY HAD SOME RELEVANCE, IT WAS CERTAINLY ABLE TO BE LIMITED AND CERTAINLY ABLE TO BE LIMITED IN SUCH A FASHION THAT THE BABY'S DEATH COULD HAVE BEEN TESTIFIED TO.

ISN'T THIS, THOUGH, THE VERY THING ABOUT THE LACK OF AN OBJECTION, THAT IS THAT YOU DON'T SAY THAT, WELL, I RECOGNIZE THAT IT WASN'T PRESERVED. THERE FOR I AM GOING TO GO TO FUNDAMENTAL ERROR, AND NOW WHEN I GO TO FUNDAMENTAL ERROR, I AM GOING TO TAKE THIS RULE ABOUT BALANCING OUT HOW MUCH OF THE EVIDENCE OR WHATEVER, BUT THEN I AM GOING TO GO BACK AND COMPLETE THE CIRCLE AND SAY, WELL, OF COURSE I ADMIT AT THE OUTSET, THAT I NEVER OBJECTED. IF YOU DIDN'T OBJECT, HOW COULD YOU POSSIBLY MAKE AN ARGUMENT THAT, WELL, IF YOU LET SOME OF IT IN BUT NOT OTHER PARTS OF IT, WHEN YOU DIDN'T OBJECT AT ALL? IN OTHER WORDS THE DEFENSE COUNSEL DIDN'T PRESENT THAT SCENARIO TO THE TRIAL COURT JUDGE, AT THE TIME THIS EVIDENCE WAS BEING OFFERED, OR AM I WRONG?

I BELIEVE, YOUR HONOR, THAT YOU ARE CORRECT. THERE WAS NO DEFENSE --

SO HOW -- I AM HAVING DIFFICULTY WITH HOW YOU CAN MAKE AN ARGUMENT THAT, WELL, IF IT HAD JUST BEEN REQUIREMENT LIMITED IN SOME -- IF IT HAD JUST BEEN LIMITED IN SOME WAY, WHEN THE LAWYER DIDN'T DO THAT. THAT MAY HAVE TO DO WITH THE EFFECTIVENESS OF THE LAWYER, IF IT IS SO EGREGIOUS, BUT HOW CAN YOU SUGGEST THAT, YES, WELL, THE JUDGE SHOULD HAVE JUMPED IN AT THIS POINT AND SAID HERE IS HOW WE ARE GOING TO DO THIS?

OBVIOUSLY I AM BOUND BY THE CONFINES OF WHAT THE ATTORNEY WHO REPRESENTED MR. SEXTON DID PRIOR TO ME. I DO BELIEVE THAT THE EVIDENCE DID NOT HAVE RELEVANCY TO THIS CASE, SUFFICIENT THAT IT SHOULD HAVE BEEN ADMITTED, AND I DO BELIEVE THAT IT WAS NOT RELEVANT TO THE REASONS WHY OR TO PROVING UP WHETHER OR NOT MR. SEXTON DIRECTED THE MURDER OF JOEL GOOD. I BELIEVE THAT IT SERVED, REALLY AS AN INFLAMMATORY TOOL OF THE STATE, IN ORDER TO MAKE MR. SEXTON APPEAR TO BE RESPONSIBLE FOR --

HOW LONG BEFORE GOOD'S KILLING DID HIS CHILD'S DEATH OCCUR?

I BELIEVE THAT IT WAS SOMEWHERE BETWEEN TWO WEEKS AND A MONTH. APPARENTLY THE CHILD DIED SOMETIME IN EARLY JANUARY OR DECEMBER.

IT WAS VERY CLOSE.

WELL, ACTUALLY, THOUGH, JOEL GOOD, THE FAMILY HAD NOT BEEN IN FLORIDA ALL THAT LONG. I MEAN MR. GOODE WAS MAKING STATEMENTS HE WANTED TO LEAVE, IN THE WEEKS BEFORE THE CHILD'S DEATH, YOU KNOW, AS WELL, AND THERE WAS A CLEAR ED I CAN'T THAT HAD COME DOWN -- A CLEAR EDICT THAT HAD COME DOWN OF WE ARE NOT GOING TO ALLOW YOU TO LEAVE.

DID YOU SAY MR. GOODE HAD NO ROLE IN THE DEATH?

THE TESTIMONY WAS THE IMPLICATION WAS CERTAINLY THAT MR. SEXTON HAD A ROLE IN THE DEATH. I THINK THAT WILLIE TESTIFIED THAT HE DID. THAT HE, IN FACT, HAD ISSUED A DIRECT ORDER. THAT WAS ABSENT, THAT TESTIMONY WAS ABSENT FROM THE ORIGINAL TRIAL. PIXIE, HOWEVER, DID NOT, SHE KIND OF WAVERED AND VACILLATED. THE UNEQUIVOCAL TESTIMONY OF ALL OF THE CHILDREN WAS THAT MR. SEXTON TOLD HER TO QUIET THE BABY. THAT IF SHE DID NOT, HE WOULD. SHE ALREADY GIVEN THE BABY MEDICINE.

WHAT WAS THE STRONGEST TESTIMONY AGAINST SEXTON ON THAT ISSUE?

WILLIE'S TESTIMONY.

AND WHAT DID THAT -- HOW DID THAT IMPLICATE HIM?

WILLIE TESTIFIED THAT MR. SEXTON TOLD PIXIE TO SMOTHER THE BABY. THAT PIXIE SAID HOW, AND THAT MR. SEXTON SAID TO PUT YOUR HAND OVER ITS MOUTH AND NOSE.

WAS MR. SEXTON INVOLVED IN, I GUESS THE WORD WOULD BE DISPOSAL OF THE BABY, FOLLOWING THIS INCIDENT, TO COVER ALL OF THIS UP, AS PART OF THIS ENTIRE PLAN, OR ANY EVIDENCE OF THAT?

THE BABY WAS BURIED. APPARENTLY THEY HAD WANTED TO HAVE A FUNERAL. THERE WAS SOME TESTIMONY THAT JOEL WANTED TO HAVE A FUNERAL. MR. SEXTON SAID WE CAN'T HAVE A FUNERAL. THAT WOULD LEAD THEM TO US, AND SO THE BABY WAS BURIED IN A DIFFERENT PARK, AND THEN APPROXIMATELY TWO WEEKS LATER, THE FAMILY MOVED TO A DIFFERENT STATE PARK.

SO IT WOULD HAVE IMPLICATED MR. SEXTON IN HOW THE REMAINS WERE TREATED.

YES. MR. SEXTON IS IMPLICATED, AS FAR AS THEY DID NOT TAKE THE BABY TO A FUNERAL HOME.

A COVER-UP OF THAT.

ESSENTIALLY YES. BUT IT WAS, ALSO, DONE NOT ONLY FROM THE STANDPOINT OF MR. SEXTON BUT BECAUSE MR. SEXTON VERY WELL BELIEVED THAT PIXIE, AND TOLD PIXIE YOU CAN BE CHARGED WITH KILLING THE BABY, THAT YOU ARE GOING TO BE ARRESTED FOR THAT. I THINK THAT IT WAS DUAL. THERE WAS NEVER AN IDEA THAT MR. SEXTON, HIMSELF, IN ANY OF THE TESTIMONY, THAT HE FELT RESPONSIBLE. IT WAS THAT PIXIE FELT THAT -- HE FELT THAT PIXIE WOULD BE CHARGED. PIXIE SOMEWHAT DISAVOWED AND BASICALLY DENIED THAT HER FATHER HAD GIVEN HER SPECIFIC INSTRUCTION ON HOW TO COMMIT THE MURDER OF THE BABY. I THINK, THOUGH, IT IS EXTREMELY INTERESTING THAT MR. SEXTON WAS NEVER CHARGED WITH THE DEATH OF THE BABY. IN LIGHT OF PIXIE AND WILLIE'S TESTIMONY, HE WAS NEVER -- THERE WERE NO FORMAL CHARGES BROUGHT AGAINST HIM. THERE WAS NO INDICTMENT SOUGHT AGAINST HIM.

IS THAT ESSENTIAL FOR THAT TO BECOME RELEVANT, AS PART OF THIS TRIAL?

I DON'T THINK THAT IS ESSENTIAL, BUT I THINK THAT IT IS TELLING WHAT WE HAVE, ESSENTIALLY HERE, IS AN UNCHARGED CRIME, AND IT WAS NOT -- THE TESTIMONY WAS CLEAR, FROM THE WITNESSES, THAT THE BABY'S DEATH DID NOT SUDDENLY MAKE JOEL AN UNWILLING PERSON WHO WAS STAYING WITH THIS FAMILY, IN THIS ENVIRONMENT. THAT DESIRE HAD EXISTED PRIOR TO THE INFANT'S DEATH. THERE WAS UNEQUIVOCAL TESTIMONY FROM CHARLES, WHO, ALSO, WENT BY THE NAME OF SKIPPER, AND ONE OF THE OTHER CHILDREN THAT, JOEL WAS WANTING TO LEAVE WHEN THEY WERE IN NEW PORT RICHEY, BEFORE THE FAMILY BEGAN THEIR HEIGHT AS INTO THE DIFFERENT STATE -- THE HIATUS INTO THE DIFFERENT STATE PARKS. THIS WAS NOT SOMETHING THAT WAS SIMPLY PREDICATED ON THE INFANT'S DEATH. YES. JOEL CONTINUED TO WANT TO GO BACK AND TAKE THE BABY'S REMAINS BACK TO OHIO WITH HIM, BUT IT WAS NOT A THIS DESIRE DESIRE THAT ARE A ROSE SIMPLY -- IT WAS NOT A DESIRE THAT ARE A ROSE SIMPLY BECAUSE OF THE DEATH OF THE CHILD.

YOU WOULD SAY THAT THE BABY'S DEATH HAD TO HAVE BEEN PART OF THE SEQUENCE OF EVENTS. IS IT YOUR SPECIFIC CONTENTION IT IS SIMPLY THE TESTIMONY CONCERNING THE ROLE OF THE -- OF MR. SEXTON IN ORDERING THE DEATH THAT SHOULD NOT HAVE COME IN?

NO. I DON'T BELIEVE THAT, UNDER A RELEVANCE HE STANDARD THAT, THE -- UNDER A RELEVANCY STANDARD THAT, THE TESTIMONY SHOULD HAVE COME IN ABOUT THE INFANT AT ALL. I THINK IN PROVING THAT MR. SEXTON HAD A ROLE IN IT, IF YOU WOULD EXCISE THE TESTIMONY ABOUT THE DEATH OF THE BABY OR MR. SEXTON'S ROLE IN IT, ESPECIALLY MR. SEXTON'S ROLE, YOU STILL HAD MR. GOODE WANTING TO RETURN PRIOR TO THE DEATH AND YOU STILL HAD -- THE FEAR OF ARREST ON OUTSTANDING CHILD ABUSE WARRANTS IS WHAT LED TO THE FLIGHT,, TO BEGIN WITH. THAT WAS WHAT MR. SEXTON WAS OBSESSING OVER AND CONSTANTLY AFRAID OF, THROUGH THE FAMILY'S TRIPS TO INDIANA, TO NEBRASKA, INTO FLORIDA, STAYING AT AN UNDERSTANDING HE WILL'S HOUSE IN FLORIDA AND DOWN THROUGH THE VARIOUS STATE PARKS.

WAS IT LOGICAL TO CONCLUDE THAT THINGS, INDEED, HAD NOT GOTTEN WORSE FOR MR. SEXTON BECAUSE OF THE DEATH OF THE BABY AND NOW GOOD, IN ADDITION TO WANTING TO LEAVE BECAUSE OF THE OTHER CIRCUMSTANCES, WAS OBVIOUSLY AFFECTED BY THE DEATH OF HIS CHILD, IN TERMS OF, AGAIN WANTING TO LEAVE, AND THAT IF HE DISCLOSED THE THINGS THAT WE ARE TALKING ABOUT THAT HAD OCCURRED IN OHIO BEFORE, THAT SURELY HE WOULD, ALSO, DISCLOSE WHAT HAD HAPPENED TO HIS CHILD AND WHERE THE CHILD WAS BURIED OR WHATEVER. IS IT LOGICAL TO CONCLUDE THAT MR. SEXTON WOULD NOT BE WORRIED ABOUT ALL OF THAT, IN TERMS OF ANY DISCLOSURES BY MR. GOODE?

FROM MY READING OF THE RECORD I BELIEVE THAT MR. SEXTON, THAT THE DEATH OF THE CHILD MADE HIM MORE A FRAYED THAT JOEL WOULD RETURN OR-AFRAID THAT IT WOULD INCREASE JOEL -- TO RETURN -- AFRAID THAT IT WOULD INCREASE JOEL'S DESIRE TO RETURN BUT NOT THAT JOEL WAS IN ANY TROUBLE OVER THE CHILD. JUST THAT, IF JOEL OR ANYONE LEFT AT THAT POINT, THAT THAT WOULD LEAD THE AUTHORITIES TO THEM. THE RECORD DOES NOT ESTABLISH, IN MY OPINION, THAT MR. SEXTON HAD ANY CONCERNS OR HE WAS AFRAID THAT HE PERSONALLY WAS GOING TO HAVE TO ANSWER TO ANYTHING RELATING TO THE BABY OR ANYTHING TO DO WITH THE BABY.

WHETHER OR NOT THAT WAS REASONABLE OR NOT, AND WHETHER OR NOT THAT WAS A POTENTIAL THING TO HAPPEN, IS ARGUABLE, IS IT NOT?

I DON'T BELIEVE THAT IT IS ARGUABLE, IN THE SENSE THAT, FROM MR. SEXTON'S VIEWPOINT THAT THAT WAS THE REASON HE WANTED TO PREVENT JOEL FROM GOING BACK. I THINK THAT THE DESIRE WAS TO AVOID DETENTION ON WHAT HE CERTAINLY KNEW THAT HE WAS IN TROUBLE FOR, WHICH IS WHAT HAD GONE ON IN OHIO.

YOU INDICATED THAT YOU HAD SOME OTHER ISSUES, TOO, THAT YOU WISH TO --

YES, YOUR HONOR. I WOULD LIKE TO TOUCH ON THE ISSUE RELATING TO THE VICTIM IMPACT EVIDENCE, AND THAT IS WHICH OCCURRED IN THIS CASE AND WHICH WE POINTED OUT IN THE INITIAL BRIEF. I AM WELL AWARE THAT THIS COURT HAS AGREED THAT THE VICTIM IMPACT EVIDENCE IS ADMISSIBLE IN THE COURTS OF THIS STATE. HOWEVER, I DO THINK THAT, IN THIS CASE, THE VICTIM IMPACT EVIDENCE THAT WAS USED CROSSED THE LINE THAT THIS COURT HAS SET FORTH, RELATING TO VICTIM IMPACT EVIDENCE.

DO YOU, ALSO, AGREE THERE WAS NO OBJECTION AS TO THE GROUNDS YOU ARE NOW RAISING. THAT IS AS TO THE FOCUS ON ANY MENTION OF THE INFANT?

I DON'T BELIEVE SO, YOUR HONOR. THERE WAS -- THAT IS --

THIS JUDGE DID ALL THAT HE COULD DO TO MAKE SURE THAT IT -- EVERYONE KNEW WHAT WAS COMING IN. HE HAD LETTERS. THEY WERE EDITED AND SHOWN TO THE DEFENSE ATTORNEY. AGREED TO, AND THEN THE ONLY THING THAT THE DEFENSE ATTORNEY DID WAS MOVE FOR A MISTRIAL, BASED ON THE FACT THAT ONE OF THE WITNESSES HAD CRIED AFTER HER TESTIMONY OR DURING HER TESTIMONY.

THAT WAS THE -- THAT IS, OBVIOUSLY RESPECT THE STATE'S CONTENTION, ALMOST VERBATIM, TAKEN FROM THE ANSWER BRIEF. HOWEVER, I BELIEVE AT THE SPECIFIC OBJECTION, WHEN THE MOTION FOR MISTRIAL WAS MADE, IS REVIEWED, THAT IT IS CLEAR FROM THAT OBJECTION THAT COUNSEL WAS OBJECTING TO MORE THAN JUST WEEPING. HE SPECIFICALLY REFERENCES THIS TYPE OF TESTIMONY. I BELIEVE HE EVEN MAKES A COMMENT ABOUT LETTING THIS ONE THING GET BY THAT HE PROBABLY SHOULDN'T HAVE DONE, BUT NOW HE SEES. NOW HE REALIZES HE SHOULDN'T, AND SO HE IS MAKING THE OBJECTION, ALTHOUGH HE DID NOT INTERRUPT THE WITNESS. I BELIEVE THAT HE SPECIFICALLY STATED, IN THE OBJECTION, WHEN HE MADE THAT TO THE COURT, WHICH WE DID REPRODUCTS IN THE REPLY BRIEF, AS FAR AS THAT ARGUMENT, WAS THAT I MOVE FOR A MISTRIAL. THE WITNESS IS WEEPING DURING HER TESTIMONY. BY MY COUNT THE OTHER JURORS ARE CRYING. I UNDERSTAND VICTIM IMPACT. THIS IS A PENALTY PHASE. THERE IS NO WAY MY CLIENT CAN GET A FAIR TRIAL, WITH THIS KIND OF EVIDENCE. IT WAS CLEARLY THAT STATEMENT, I THINK, MAKES IT SPECIFICALLY CLEAR THAT HE WAS OBJECTING NOT ONLY TO THE EFFECT OF THE EVIDENCE BUT HE WAS OBJECTING TO THE EVIDENCE, ITSELF, THAT CAME IN THROUGH THERESA BORON'S STATEMENT. AND HE SAID, TO SOME EXTENT, I HAVE TO ACCEPT THE RESPONSIBILITY, JUDGE, THAT I HAVE LET IT COME TO THE POINT THAT IT DID. HOWEVER, THIS IS ABSOLUTELY --

THE JUDGE DENIED THE MOTION FOR MISTRIAL. DID THE JUDGE MAKE ANY OTHER RULINGS OR WAS ANY OTHER RELIEF ASKED FOR, SUCH AS STRIKING THAT PORTION OF THE TESTIMONY OR INSTRUCTING THE JURY NOT TO CONSIDER THAT PORTION? WAS ANYTHING LIKE THAT ASKED FOR?

I DO NOT BELIEVE THAT IT WAS DONE, YOUR HONOR.

IN OTHER WORDS THE ONLY RELIEF THAT WAS ASKED FOR --

-- WAS A MISTRIAL AND BASICALLY SAID THAT THERE WAS ABSOLUTELY NO WAY. I BELIEVE THAT THE DEFENSE ATTORNEY, IN ASKING FOR THE MISTRIAL, TOLD THE JUDGE THERE IS NO WAY, NOW THAT THIS HAS COME IN IN THE PENALTY PHASE, THAT MY CLIENT IS GOING TO GET A CLEAR PENALTY PHASE.

WHAT YOU SAID IS -- WHAT HE SAID IS YOU, ALSO, MENTIONED THE FORMER TRIAL, AND TO SOME EXTENT I HAVE TO CATCH THE BLAME FOR THAT. WHAT YOU ARE RAISING THE ISSUE HERE IS THE REFERENCE TO THE DEATH OF THE INFANT.

I THINK, WHEN HE SAID THAT THIS TYPE OF EVIDENCE, AND SHE, ALSO, MENTIONED THE FORMER TRIAL AND THEN HE SAYS I HAVE TO ACCEPT SOME RESPONSIBILITY FOR THAT, I THINK THAT HIS OBJECTION TO THE EVIDENCE THAT BORON GAVE, INCLUDING HER REFERENCE TO THAT, BUT I DON'T THINK THAT IT WAS JUST SIMPLY TO. THAT I THINK HE WAS GIVING THAT AS ONE EXAMPLE. I THINK THAT THE ATTORNEY REALIZED, SUDDENLY, WHEN, AFTER SHE IS TESTIFYING AND EVEN THOUGH HE HAD DONE, APPARENTLY, IF -- OBVIOUSLY THE STATEMENT WAS GIVEN TO HIM. THAT IS UNDISPUTED IN THE RECORD PRIOR TO IT. WHETHER OR NOT HE ANALYZED THE STATEMENT, I HAVE NO WAY OF KNOWING. I DO KNOW THAT ONCE HE HAD THE TESTIMONY AND IT WAS PRESENTED, THAT HE HAD NO DOUBT WHAT THE TESTIMONY WAS FROM HER AND HE STOOD UP AND IN EFFECT ARGUED THAT THE TYPE OF EVIDENCE AND NOW IT IS THE WORDS HE USED, THIS TYPE OF EVIDENCE, AND SHE REFERENCED THE PRIOR TRIAL AND THE FACT THAT THERE HAD BEEN A PRIOR TRIAL, AND THERE IS NO WAY MY CLIENT CAN GET A FAIR PENALTY PHASE, WITH THIS TYPE OF THING COMING IN. I THINK THAT THE SIGNIFICANT PART OF THAT TESTIMONY, YOU KNOW THE FACT THAT IT RELATED TO THE INFANT, WAS CLEARLY INADMISSIBLE IN THIS CASE. IT WAS NOT DESPITE THE STATE'S CONTENTION AND IN THE ANSWER BRIEF RELATING TO SOME OTHER TYPES OF VICTIM IMPACT TESTIMONY THAT HAD BEEN USED. THIS COURT HAS NEVER PERMITTED --

WAS THAT IN THE WRITTEN STATEMENT THAT THE LAWYER SAW BEFORE THE TESTIMONY?

I BELIEVE SOME OF THAT TESTIMONY WAS THAT THERE WERE, ALSO, A COUPLE OF THINGS THAT WERE EXCISED THAT THE PROSECUTOR TOOK UP, THAT DEALT WITH THEM BEING IN HEAVEN AND SOME THINGS LIKE THAT. THE PROSECUTOR SAID THAT WOULD NOT BE COMING IN AND REMOVED.

DO WE HAVE THE SAME PROBLEM THAT THE LAWYER SAW THE STATEMENT, AND IF THERE IS ANY REFERENCE TO THAT IN THE STATEMENT, HAD THE OBLIGATION AT THAT TIME TO ASK THE COURT NOT TO ALLOW THAT, AND BEING CONSISTENT WITH OUR NARROWING RULINGS ABOUT THIS KIND OF TESTIMONY?

I BELIEVE THAT THAT WOULD HAVE BEEN MORE PRUDENT TO HAVE OBJECTED AT THAT POINT IN TIME. HOWEVER, I DO BELIEVE THAT THE ATTORNEY DID PROPERLY OBJECT AT THE TIME THAT HE DID IN ASKING FOR THE RELIEF THAT HE REQUESTED. CERTAINLY, YOUR HONOR, I THINK IT WOULD HAVE BEEN MORE PRUDTONT HAVE DONE IT PRIOR TO.

NOT ONLY MORE PRUDENT, BUT THAT IS THE WAY TO AVOID A SITUATION, INSTEAD OF THROWING IT IN TO A DETERMINATION, THAT THERE HAS TO BE AN EXTREME OUTCOME OF SUCH AS A MISTRIAL. I MEAN, A LAWYER CLEARLY HAS AN OBLIGATION, IF HE SEES THAT THERE IS SOMETHING THERE THAT MIGHT CAUSE A MISTRIAL, AND HE HAS THAT -- IT WAS THE WHOLE PURPOSE OF HIM GETTING THE STATEMENTS BEFOREHAND. WAS IT NOT?

I AGREE THAT THAT WAS, YES, YOUR HONOR, ONCE AGAIN.

YOU CAN'T LOOK AT A STATEMENT AND SEE THAT, WELL, MY GOSH, IF THAT COMES OUT, IT IS GOING TO POISON THE WHOLE PENALTY PHASE PROCEEDING, AND THEN IT DOES COME OUT, AND THEN SAY --

I AGREE,, YOUR HONOR. I AGREE THAT THAT WOULD HAVE BEEN A BETTER TIME FOR HIM TO OBJECT. HOWEVER, AGAIN, I CANNOT ANSWER TO THE REASONS WHY OR WHY HE DID NOT DO THAT. CERTAINLY I THINK BOTH IN THIS INSTANCE AND IN THE OTHER INSTANCE, THERE ARE CERTAINLY QUESTIONS REGARDING THE PERFORMANCE OF THIS PARTICULAR ATTORNEY IN THIS CASE. WE ARE NOT HERE, TODAY, TO ARGUE THAT ISSUE. IT IS NOT THE APPROPRIATE TIME. MY OBLIGATION TO MY CLIENT AT THIS POINT IS TO PRESENT, YOU KNOW, THE ISSUES THAT I FELT WERE ARGUABLE IN THIS BRIEF TO THIS COURT AT THIS TIME, TO ALLOW THEM TO SEE THEM. I DO BELIEVE THAT THIS COULD BE REACHED, WITH THE OBJECTION THAT IS PRESENT, SHOULD THIS COURT SO CHOOSE TO, THAT THERE WAS AN OBJECTION MADE TO THE TESTIMONY. I DO BELIEVE THAT IT EXCEEDED THAT OF JUST FACT THAT THE TWO WITNESSES WERE CRYING. THAT IT DID BECOME -- ANOTHER OBJECTION MADE AFTER TESTIMONY COMES IN IS DIFFERENT THAN AN OBJECTION MADE CONTEMPORANEOUSLY. BUT LET ME ASK YOU A QUESTION ABOUT THE HARMLESSNESS ISSUE THAT IS, ALSO, RAISED BY THE STATE. THE JURY HEARD TESTIMONY IN THE TRIAL, ABOUT THE DEATH OF THE INFANT, AND IF WE, I GUESS IT IS REALLY INEXTRICABLY INTERTWINED, BECAUSE IF WE REJECT YOUR ARGUMENT THAT THAT TESTIMONY SHOULD HAVE BEEN EXCLUDED BECAUSE IT WAS NOT RELEVANT, THEN THE JURY HEARD THAT TESTIMONY AND KNEW THAT JOEL WAS DEVASTATED BY THE DEATH OF HIS CHILD, BECAUSE THAT WAS -- HE WANTED TO BRING THIS CHILD BACK TO BE BURIED IN OHIO. GIVEN THAT, AND GIVEN THE STRONG AGGRAVATORS IN THIS CASE, WHY ISN'T THIS HARMLESS BEYOND A REASONABLE DOUBT, SINCE THE STATE DID NOT PLAY THIS UP IN ANY WAY. IT WAS JUST IN A LETTER THAT WAS READ TO THE JURY AND WHICH WAS APPROVED BY THE COURT AND THE DEFENSE LAWYER IN ADVANCE?

I BELIEVE THAT THE LETTER WAS A LETTER -- A LETTER WAS READ. HOWEVER, IT WAS READ BY THE WOMAN WHO WROTE THE LETTER THAT, BEING JOEL'S AUNT, AND A FAMILY MEMBER, SO THIS WAS NOT THE DISPASSIONATE READING OF A LETTER BY A NONPARTY WITNESS OR BY THE ATTORNEY, HIMSELF, OR THE PROSECUTOR. AND IT OBVIOUSLY HAD A TREMENDOUS IMPACT ON THE JURY, AS WAS NOTED AND WAS UNCONTESTED THAT AT LEAST TWO OF THE JURORS WERE VISIBLY CRYING. OTHERS WERE ABOUT TO CRY. I BELIEVE IT WOULD BE PROPER FOR THEM TO TESTIFY THAT JOEL WAS DEVASTATED BY THE INFANT'S DEATH. HOWEVER, NOT FOR THEM TO GO TO THE EXTENT THAT THEY DID ABOUT THE EFFECT THE DEATH OF THE CHILD HAD ON THE REMAINING FAMILY MEMBERS WHO WERE LEFT BEHIND. YOU KNOW, UP TO AND INCLUDING THE STATEMENT ABOUT THEM RETURNING AND CRADLED IN EACH OTHER'S ARMS IN BODY BAGS TO OHIO FOR BURIAL, AND JUST BRIEFLY TOUCHING ON THE STRENGTH OF THE AGGRAVATORS IN THIS CASE, I DO NOT BELIEVE THAT THE AGGRAVATORS IN THIS CASE CANNOT BE SUBSTANTIALLY MITIGATED BY THE MITIGATION IN THIS CASE. OBVIOUSLY THIS WAS A MAN WHO HAD SEVERE BRAIN DYSFUNCTION. THERE WAS UNCONTROVERTED TESTIMONY FROM TWO DIFFERENT DOCTORS REGARDING THAT. IN REGARD TO THE PROPORTIONALITY OF THE DEATH SENTENCE IN THIS CASE, I DO BELIEVE THAT IT IS DISPROPORTIONATE, BASED UPON THIS CASE'S PRIOR HOLDINGS AND BASED UPON THE LESSER SENTENCES RECEIVED BY THE CODEFENDANT AND THEN THE UNCHARGED AND THE FACT THAT PIXIE WAS NEVER CHARGED FOR HER ROLE IN THIS HOMICIDE.

WERE THE STATUTORY MENTAL MITIGATORS CLAIMED IN THIS CASE OR WERE THEY FOUND BY THE TRIAL COURT?

ONE WAS FOUND AND GIVEN GREAT WEIGHT.

IF YOU WISH TO SAVE SOME TIME FOR REBUTTAL, YOU MAY. MR. LANDERS.

MAY IT PLEASE THE COURT FORM MY NAME IS BOB LANDERS. I REPRESENT THE STATE IN THIS APPEAL. WITH RESPECT TO THE FIRST CLAIM RAISED ON THIS APPEAL TODAY, CONCERNING THE UNOBJECTED TO TESTIMONY OF SKIPPER GOOD, AS OUR READING OF THE RECORD SHOWS, ESSENTIALLY NOTHING REALLY CHANGED FROM THIS COURT'S LAST APPEAL. THE -- ON THE LAST APPEAL, THIS COURT DETERMINED THAT THE TESTIMONY RELATING TO THE MOTIVE TO KILL JOEL GOOD, INCLUDING THE DEATH OF THE BABY, WAS APPROPRIATE. OTHERWISE THE JURY WOULD NOT UNDERSTAND THE ENTIRE CONTEXT OF THIS CRIME.

MR. LANDRY, YOU REMEMBER, OR CAN YOU TELL ME OFF THE TOP OF YOUR HEAD, HOW WOULD THE DEFENDANT WAS AND HOW WOULD THE VICTIM WAS IN THIS CASE? DUO-DO YOU HAVE THAT?

THE DEFENDANT -- DO YOU HAVE THAT?

THE DEFENDANT. MR. SEXTON, I BELIEVE, WAS IN HIS FORTIES. MIGHT BE IN HIS FIFTIES. I DON'T HAVE THAT -- I DON'T REMEMBER THAT OFF THE TOP OF MY HEAD. I KNOW THAT WILLIE, I BELIEVE, WAS 27, AT THE TIME OF HIS TESTIMONY THIS TIME.

HOW ABOUT THE VICTIM? GOOD?

THE VICTIM, JOEL GOOD, WAS IN HIS TWENTIES, TOO, I BELIEVE.

COULD YOU ADDRESS THE DEFENSE'S ARGUMENT THAT THINGS DID CHANGE IN THIS TRIAL, EITHER AS TO THE DEFENSE'S THEORY OR THE WAY THE EVIDENCE CAME OUT. COULD YOU PLEASE SORT OF GIVE US THAT, THE BENEFIT OF YOUR --.

I UNDERSTANDING OF THE DEFENSE THEORY WAS STILL THE SAME IN THE SECOND TRIAL AS THE FIRST. HE ARGUED, IN HIS OPENING STATEMENT AND IN HIS CLOSING ARGUMENT TO THE JURY, THAT PIXIE WAS A DOMINATING FORCE. THAT PIXIE WAS THE ONE THAT, REALLY, GOT WILLIE KILL JOEL. THAT SHE WASN'T GETTING ALONG WITH JOEL, ET CETERA, ET CETERA, SO THEY WERE -- THAT WAS THE SAME THEORY, OF COURSE, PRESENTED BY THE DEFENSE IN THE FIRST TRIAL.

WAS THE PROSECUTION STRATEGY DIFFERENT SPECIFICALLY, AS TO WHY JOEL WANTED TO RETURN TO OHIO AND WHAT --

I DON'T THINK THE STATE'S THEORY CHANGED, REALLY, AT ALL. I THINK THE STATE'S ARGUMENT WAS THAT THE KILLING OF, THE DEATH OF SKIPPER ACCELERATED JOEL GOOD'S DESIRE TO GO BACK TO OHIO. HE HAD MADE SOME INDICATIONS BEFORE THAT THAT HE DIDN'T WANT TO STAY THERE CONTINUOUSLY AND WANTED TO GO BACK, AND EDDIE SEXTON HAD MADE COMMENTS TO THE EFFECT OF NO ONE IS GOING TO LEAVE. YOU KNOW. WE HAVE TO STAY HERE AND CAN'T LET THE AUTHORITIES KNOW WHAT IS GOING ON. SO OBVIOUSLY --

LET ME ASK YOU THIS. IF -- CONCEDING THAT THE DEATH OF THE BABY WAS A FACTOR IN JOEL  JOEL'S, YOU SAID, ACCELERATING HIS DESIRE TO RETURN AND THAT HE WAS DEVASTATED BY IT, WHAT WAS THE REASON, AND WHAT WAS THE RELEVANCY OF GOING INTO THE CIRCUMSTANCES OF THE BABY'S DEATH? JOEL WAS SLEEPING THAT NIGHT, AS TO WHAT EFFECT OR WHAT SEXTON SAID TO PIXIE ABOUT YOU BETTER KILL HER OR KEEP HIM QUIET OR I HAVE TO DO IT?

WELL, I THINK ALL OF THIS DEMONSTRATES THAT EDDIE LEE SEXTON HAD A GREAT DEAL TO BE CONCERNED ABOUT SUBSEQUENTLY, WHEN JOEL INDICATED THAT HE WAS GOING TO GO BACK TO OHIO AND WANTED TO GIVE THE BABY A BURIAL IN OHIO. WANTED TO TELL THE GRANDPARENTS AND ALL OF. THAT OBVIOUSLY MR. SEXTON WAS WELL AWARE OF THE PROBLEMS THAT, IF HE WENT BACK TO OHIO, THE DISCLOSURE, AS TO HIS WHEREABOUTS AND THE UNLAWFUL BURIAL OF THE BABY IN FLORIDA WOULD LEAD TO HIS PREVENTION.

NO. NO. I AM ASKING THE QUESTION JUST NOT ABOUT THE DEATH OF THE BABY AND THE BURIAL, BUT WHAT WAS THE REASON FOR HAVING TO GO INTO THE FACT THAT IT WAS SEXTON THAT MAY HAVE CONTRIBUTED TO THE DEATH OF THIS CHILD? WAS THERE ANY EVIDENCE THAT JOEL KNEW ABOUT THAT?

NO. I DON'T KNOW THAT JOEL KNEW ANYTHING ABOUT THE -- ABOUT SEXTON'S ROLE OR NONROLE IN THE DEATH OF SKIPPER. HE WOKE UP --

YOU ACTUALLY EVEN REFERRED TO IT AS A MURDER, AND OBVIOUSLY THIS WASN'T A CRIME THAT THIS PARTICULAR DEFENDANT WAS BEING CHARGED WITH, SO WHAT WAS THE RELEVANCY OF THAT KIND OF TESTIMONY ABOUT TELLING THE JURY THAT HE TOLD PIXIE TO -- HOW TO SHUT HIM UP OR I WILL DO IT OR WHATEVER IS IN THE JUDGE'S SENTENCING ORDER? I AM TRYING TO UNDERSTAND WHAT THAT HAS TO DO WITH THE DEATH OF JOEL GOOD.

I THINK THE TESTIMONY OF PIXIE AND ALL OF THE OTHER PEOPLE INVOLVED, YOU KNOW, HAD TO DEMONSTRATE WHAT LED UP TO THE JOEL GOOD HOMICIDE. I MEAN, IT JUST WASN'T BECAUSE -- I MEAN, YOU CAN'T UNDERSTAND HIS MOTIVE TO GET RID OF JOEL AT THIS POINT, UNLESS YOU TALK ABOUT THE DEATH OF SKIPPER. AND HE DID PLAY A ROLE.

THREE DAYS BEFORE, HE HAD, ON HIS OWN, ROBBED A BANK OR SOMETHING, AND JOEL DIDN'T KNOW ABOUT IT, WOULD THAT COME INTO EVIDENCE, JUST BECAUSE IT HAPPENED TO BE IN THE FEW DAYS BEFORE? IN OTHER WORDS I DON'T SEE -- I AM TRYING TO UNDERSTAND HOW THIS IS INEXTRICABLY INTERTWINED WITH THE DEATH OF JOEL. ONLY THE PART ABOUT --

JOEL HAS TO BE KILLED, BECAUSE JOEL IS GOING BACK TO OHIO. HE KEEPS TELLING EDDIE SEXTON THAT HE IS GOING BACK, AND EDDIE THEREUPON, IS TELLING WILLIE AND THE OTHERS THAT JOEL IS A SNITCH. THE ONLY GOOD SNITCH IS A DEAD SNITCH. JOEL --

THAT COULD ALL HAVE BEEN DONE WITHOUT HAVING TO TALK ABOUT WHETHER HE HELPED PIXIE SMOTHER THE BABY OR HAD A ROLE IN THE DEATH OF THE BABY. ALL OF THE OTHER STUFF IS STILL COMING IN, AND THERE IS, WITHOUT ANY PROBLEM.

I MEAN, EDDIE IS TELLING PIXIE, AFTERWARDS, THAT, YOU KNOW, SHE MAY FACE CHARGES FOR THE DEATH OF THE BABY AND SHE MIGHT GO TO THE ELECTRIC CHAIR AND THINGS OF THAT NATURE. OBVIOUSLY EDDIE KNEW THAT, ONCE JOEL GETS BACK TO OHIO AND THAT LEADS TO HIS PREVENTION IN FLORIDA, YOU KNOW, THERE MAY BE ALL KINDS OF REPERCUSSIONS INVOLVING SKIPPER'S DEATH OR NOT  NOT.

HOW DID THE STATE ARGUE THAT EVIDENCE? WHAT DID THEY SAY IN CLOSING, ABOUT THE PARTICULAR CIRCUMSTANCES OF THE BABY'S DEATH? HOW DID THEY USE IT --

I DON'T KNOW THAT THEY PAID A GREAT DEAL OF ATTENTION OR A GREAT DEAL OF EMPHASIS AS TO THE CAUSE OF THE BABY'S DEATH. I THINK THEY PROBABLY WOULD HAVE REVIEWED THE TESTIMONY OF PIXIE, AS TO HER FOLLOWING THE DIRECTIONS OF THE -- OF EDDIE, AND, AGAIN, I THINK IT IS IMPORTANT, IT IS IMPORTANT TO SHOW THE ROLE, THE DOMINATING ROLE THAT SEXTON HAD OVER HIS CHILDREN. I MEAN, THE STATE'S THEORY OF THE CASE WAS THAT EDDIE GOT WILLIE, WHO WAS BASICALLY RETARDED, SEXUALLY ABUSED AND ISOLATED AND MENTALLY TROUBLED, MAN CHILD, AND OBVIOUSLY THE STATE NEEDED TO SHOW IT WAS APPROPRIATE FOR THE STATE TO SHOW, MR. SEXTON'S CONTROL OVER THE ENTIRE FAMILY, AND TOWARD THAT END --

THAT WOULD AND SEPARATE REASON, THEN.

AN ADDITIONAL REASON FOR THAT YEAH.

THAT IS TO SHOW THAT HE HAD SUCH CONTROL THAT HE EVEN WAS ABLE TO GET HIS DAUGHTER TO DO THIS TO THIS BABY. IS THAT WHAT YOU ARE ARGUING?

THAT'S CORRECT. I MEAN, AND HIS --

IS THAT HOW IT WAS ENTERED, USED IN THE FIRST TRIAL?

I BELIEVE SO, AND I THINK IN THE FIRST TRIAL, THERE WAS, EVEN THERE WAS MUCH MORE EXTRANEOUS MATERIAL, CONCERNING EXTRAVAGANT SEXUAL ACTS AND BIZARRE MARRIAGE CEREMONIES, ET CETERA, ET CETERA WHICH THIS COURT FOUND TO BE PREJUDICIAL ERROR, UNDER WILLIAMS RULE OR ANY OTHER THEORY THAT THE STATE HAD TO OFFER AT THAT TIME. MOST OF THAT, I WOULD SUBMIT THAT ALMOST ALL OF THAT WAS EXCLUDED FROM THIS TRIAL AT THIS TIME. AS THE TRIAL JUDGE NOTED IN HIS SENTENCING ORDER, THAT PRETTY MUCH BASICALLY EVERY EFFORT WAS MADE TO KEEP THE TESTIMONY THAT WAS INTRODUCED IN THIS TRIAL RELEVANT TO THE TWO ISSUES THAT WERE BEFORE THE COURT. WITH RESPECT TO THE CLAIM IN THE -- THAT THE APPELLANT IS RAISING WITH REGARD TO VICTIM IMPACT TESTIMONY, AGAIN, AS WE HAVE ARGUED IN OUR BRIEF, THE CLAIM SHOULD BE DEEMED PROCEDURALLY BARRED. THE DEFENSE WAS GIVEN BOTH WRITTEN STATEMENTS, PRIOR TO THE TESTIMONY. AS A MATTER OF FACT, BEFORE THE TESTIMONY OF ONE OF THE WITNESSES, THE DEFENSE COMPLAINED, AND UPON REVIEWING ONE OF THE LETTERS, SAID THAT THERE WAS SOME UNDUE PREJUDICIAL STATEMENTS IN THERE, AND THE TRIAL JUDGE AGREED. THE TRIAL JUDGE SAID TELL YOUR WITNESS TO EXCLUDE PARAGRAPHS FIVE AND SIX OF THE LAST TWO PARAGRAPHS OF WHAT HE IS GOING TO READ AND THEY DID THAT. SUBSEQUENTLY, BOTH THE AUNT AND UNCLE TESTIFIED, AND THEIR TESTIMONY IS VERY BRIEF. THE AUNT TESTIFIED FOR THREE OR FOUR PAGES AND THE UNCLE FOR ABOUT A PAGE AND-A-HALF.

YOU ARE NOT -- WOULD YOU AGREE THAT THE STATEMENT, JOEL'S BROTHER WILL NEVER GET TO PLAY WITH THE ONLY NEPHEW HE WILL EVER HAVE, BECAUSE SKIPPER'S LIFE WAS, ALSO, TAKEN IN A SENSELESS ACT OF VIOLENCE, THAT THAT IS NOT PROPER VICTIM IMPACT TESTIMONY.

NO. NO. I THINK IT IS PROPER VICTIM IMPACT TESTIMONY, IN TERMS OF DESCRIBING THE LOSS OF JOEL TO THE FAMILY, AND IN ADDITION, THE JURY HAS ALREADY HEARD THE TESTIMONY WITH REGARD --

WILL NEVER GET TO PLAY WITH THE ONLY NEPHEW HE EVER HAD, BECAUSE SKIPPER'S LIFE WAS, ALSO TAKEN, IN A SENSELESS ACT OF VIOLENCE. WOULD YOU AGREE, THAT, AS A GENERAL PROPOSITION, THAT THE IMPACT OF THE DEATH OF SKIPPER ON THE FAMILY WOULD NOT BE PROPER VICTIM IMPACT TESTIMONY?

WELL, MAYBE AS A GENERAL PROPOSITION, BUT UNDER THE FACTS OF THIS CASE, I WOULDN'T AGREE THAT IT IS IMPROPER, BECAUSE THE JURY HAD ALREADY HEARD. THAT THE JURY HAD ALREADY HEARD FROM PIXIE.

THAT WOULD MAKE IT HARMLESS, BUT IT WOULDN'T MAKE IT ANY LESS IMPROPER, WOULD IT?

I DON'T KNOW. I THINK IF YOU WANT TO DETERMINE VICTIM IMPACT STATEMENTS ABOUT THE CASE AND THE FACTS OF THE CRIME. THE JURY HAS ALREADY HEARD ABOUT IT. IT IS NOT NEWS.

THE IMPACT IS SUPPOSED TO BE THE DEATH ON THE SURVIVORS, THE IMPACT OF THE VICTIM, NOT THE IMPACT OF ANOTHER DEATH.

I SUPPOSE WE COULD HAVE EXCISED VARIOUS SENTENCES AND HAD PEOPLE RESTATE AND REPHRASE THINGS, BUT THAT WAS THE PURPOSE OF HAVING THESE STATEMENTS PREPARED AHEAD OF TIME.

THAT IS A DIFFERENT QUESTION. AND SO THAT IS A DIFFERENT QUESTION THAN THE STATE SUGGESTING THAT IT CAN GO THIS FAR AFIELD, UNDER THE GUISE OF VICTIM IMPACT.

WELL, I THINK THAT THE STATEMENTS THAT BOTH OF THESE RELATIVES MADE TO THE JURY WERE EXTREMELY BRIEF. THEY WERE EXTREMELY EDITED, TRUNCATED VERSIONS OF THE IMPACT OF JOEL'S DEATH, AND ANY REFERENCE TO SKIPPER'S DEATH, I THINK, WAS SO MINIMAL, IT, REALLY, ADDED NOTHING. I MEAN I DON'T WANT TO SAY THAT --

THAT IS A DIFFERENT ARGUMENT THAN SAYING THAT IT WAS ENTIRELY PROPER TO HAVE THAT KIND OF EVIDENCE AND TESTIMONY, UNDER THE GUISE OF THE VICTIM IMPACT, AND THAT IS WHAT I UNDERSTOOD YOU TO SAY TO JUSTICE PARIENTE EARLIER, IS THAT THE STATE WAS ENTITLED.

WELL, I THINK THE STATE WAS ENTITLED TO SHOW, IN THE VICTIM IMPACT TESTIMONY, THE LOSS OF JOEL TO HIS FAMILY AND THE COMMUNITY. AND YOU KNOW, THE BRIEF, ONE ONE-SENTENCE STATEMENT ABOUT RELATING TO SKIPPER, IF YOU WANT TO SAY THAT TECHNICALLY THAT WAS NOT PROPER, BECAUSE THE DEFENDANT WAS NOT CHARGED WITH THE MURDER OF SKIPPER, PERHAPS, BUT IT IS NOT SOMETHING WHICH WAS EXTREMELY PREJUDICIAL TO THE DEFENSE, BECAUSE THE JURY HAD HEARD THE WHOLE STORY ABOUT PIXIE AND --

THAT IS, AS I SAY, DO YOU, NOW, AGREE THAT THAT WAS NOT PROPER VICTIM IMPACT TESTIMONY?

PERHAPS THERE WAS ONE SENTENCE TO THAT EFFECT IN THERE. MY RECOLLECTION OF THE TOTALITY OF THE STATEMENTS BY ASBY BARRICK AND THERESA BORLAND ESSENTIALLY TRACKED THE LOSS OF JOEL. THAT IS ESSENTIALLY WHAT THEY ARE TALKING ABOUT. IF YOU ARE SAYING THAT THERE CAN'T BE ANY EMOTIONAL IMPACT OR ANY KIND OF VICTIM IMPACT, THEN THAT IS NOT THE CASE.

CAN WE JUST GET TO THE FACT THAT IT IS NOT PROPER, IN VICTIM IMPACT STATEMENT, TO INCLUDE THE DEATH OF THIS BABY AND THE IMPACT OF THE DEATH OF THE BABY ON THE FAMILY. THAT IS ALL WE ARE ASKING YOU TO AGREE TO, AND THEN IF IT IS HARMLESS OR IT WASN'T OBJECTED TO, WE CAN GET TO THAT, BUT WE HAVE GOT TO WORRY ABOUT OTHER CASES AND MAKE SURE THAT VICTIM IMPACT STATEMENTS ARE DONE WITHIN THE PARAMETERS OF THE LAW. AND I REALIZE THE JUDGE DID GO OUT OF HIS WAY AND I UNDERSTAND THAT, BUT IF YOU JUST WOULD AGREE THAT TALKING ABOUT THAT THE BROTHER WILL NEVER GET TO PLAY CATCH WITH THE ONLY NEPHEW THAT HE WILL EVER HAVE BECAUSE SKIPPER'S LIFE WAS TAKEN IS IMPROPER.

IF YOU WANT TO SAY THAT ANY REFERENCE TO SKIPPER'S DEATH, OR THE HOMICIDE OF SKIPPER IS IMPROPER.

KNOW THE THE IMPACT OF SKIPPER'S DEATH ON HIS FAMILY WAS IMPROPER VICTIM IMPACT TESTIMONY. THAT IS WHAT I WOULD LIKE YOU TO SAY.

WELL, IT MAY HAVE BEEN IN A TECHNICAL WAY. I DON'T -- IF WE GETTING BACK INTO HARMLESSNESS OR IF WE ARE GETTING INTAK BACK INTO THE IMPACT -- GETTING BACK INTO THE IMPACT IT HAD ON A JURY, I DON'T THINK IT WAS ANYWHERE CLOSE TO REVERSIBLE. I THINK ONE OF THE STATEMENTS BY THE RELATIVES, ALSO, TALKED ABOUT THE DEATH OF THE GRANDFATHER OR SOMETHING, AND THAT DIDN'T GET A CHANCE TO SEE JOEL GOOD BEFORE HIS DEATH, ET CETERA, ET CETERA. IT SEEMS TO ME THAT ANY REFERENCE TO SKIPPER, IN THE CONTEXT OF THIS CASE, AND VICTIM IMPACT, WAS TOTALLY MINIMAL, IN REGARD TO THE ENTIRE CASE THAT THE JURY ALREADY HEARD ABOUT. WITH RESPECT TO THE CLAIM OF DISPROPORTIONALITY, AGAIN, WE WOULD SUBMIT THAT THE TRIAL JUDGE MADE THE CORRECT DETERMINATION. WE HAD THREE AGGRAVATORS IN THIS CASE. WE HAD A PRIOR VIOLENT FELONY CONVICTION, TO WHICH A JUDGE ATTACHED LITTLE WEIGHT. IT WAS, I BELIEVE, A 1963 OR 1965 ROBBERY CONVICTION. BUT THEN WE HAD TWO STRONG AGGRAVATORS, IN TERMS OF THE COLD, CALCULATED AND ME PREMEDITATED FACTORS -- AND PREMEDITATED FACTOR, WHICH THIS COURT FOUND TO BE A VERY WEIGHTY AGGRAVATOR, AND ADDITIONALLY TO AVOID ARREST, WHICH WAS THE ENTIRE MOTIVE BEHIND THIS ENTIRE EPISODE.

YOU REFERRED TO WILLIE AS A MAN CHILD, AND I ASSUME THAT WAS BECAUSE OF HIS MENTAL PROBLEMS?

THAT'S CORRECT. HE WAS IN HIS TWENTIES, I BELIEVE, AT THE TIME OF THE MOTIVE.

WHAT ABOUT THE MENTAL PROBLEMS OF SEXTON, HIMSELF? WERE THERE SUBSTANTIAL MENTAL PROBLEMS THAT WOULD PLACE HIM IN THE SAME CATEGORY?

NOT IN THE SAME CATEGORY.

HOW WOULD YOU COMPARE THE TWO OR HOW DO THE EXPERTS DO THAT?

WELL, THE WITNESS WHO TESTIFIED FOR THE STATE, IN GUILT PHASE, DR. SOLOMON, I BELIEVE IT WAS, WENT INTO GREAT DETAIL AS TO WILLIE'S PROBLEMS, THAT WILLIE WAS FUNCTIONING AT THE LEVEL OF A 7 OR 8-YEAR-OLD CHILD. HIS MENTALITY WAS VERY LOW. I FORGET WHAT PERCENT TILE IT WAS.

WHAT ABOUT THE DEFENDANT?

IF YOU COULD JUST FINISH, AND THAT WILLIE HAD SUFFERED FROM YEARS OF ISOLATION, SEXUAL ABUSE AND DEPRIVATION AND THAT REGARD. WITH REGARD TO APPELLANT EDDIE SEXTON, THE -- THEY HAD, DR. WINER AND DR. WOOD TESTIFIED. DR. WOOD TESTIFIED THAT A CT SCAN SHOWED THAT THERE WAS A DYSFUNCTION IN THE LYMBIC SYSTEM OF THE BRAIN, BUT I BELIEVE THAT NEITHER DR. WINER NOR DR. WOOD WOULD SAY THIS IS CAUSATIVE OF ANYTHING. THE DEFENDANT HAD AN IQ IN HIS 80s. HE WAS CAPABLE.

WHAT WAS THE STATUTORY MENTAL MITIGATOR.

EXTREME MENTAL EMOTIONAL DISTURBANCE IS WHAT HE FOUND AS A MITIGATOR, AND HE GAVE GREAT WEIGHT TO THAT AND HE GAVE SOME WEIGHT TO THE REMAINING NONSTATUTORY MITIGATORS.

ANY TESTIMONY ABOUT THE EDUCATIONAL BACKGROUND OR THE UPBRINGING AND WHATEVER OF THE DEFENDANT?

I THINK THERE WAS SOME TESTIMONY ABOUT THAT HE HAD LOST HIS FATHER AT AN EARLY AGE OF TEN AND THEREFORE HE DIDN'T HAVE A MALE ROLE MODEL GROWING UP.

WHAT ABOUT HIS EDUCATION AND CIRCUMSTANCES?

I DON'T KNOW THAT THEY WENT INTO ANY DETAIL OR ANYTHING AT ALL CONCERNING HIS EDUCATIONAL BACKGROUND.

SO -- WE DON'T KNOW ABOUT THAT?

NO. WE -- THEY PRESENTED TESTIMONY FROM, I BELIEVE, RELATIVES, A SISTER AND A COUSIN, I THINK, A TO HOW HELPFUL HE HAD BEEN TO THEM AND HELPED THEM OUT IN FAMILY WAYS AND THAT TYPE OF THING.

WHAT ABOUT HIS EMPLOYMENT HISTORY?

THERE WASN'T ANYTHING, REALLY PRESENTED, IN TERMS OF AN EMPLOYMENT HISTORY, AS FAR AS I CAN RECALL.

SO IS HIS LIFE A BLANK, THERE BEFORE ALL OF THIS?

HE WAS KIND OF -- BASICALLY WHAT THE CASE IS ABOUT IS THAT HE WAS ON THE RUN FROM OHIO.

BUT WE DON'T KNOW WHETHER HE WAS AN EMPLOYED CARPENTER OR ALLAY MINISTER OR --

THERE WAS -- OR A LAY MINISTER?

THERE WAS TRIAL TESTIMONY THAT HE WAS SOME KIND OF A MINISTER, AND THE COURT, I BELIEVE, GAVE SOME MINOR WEIGHT OR A LITTLE WEIGHT TO HIS BEING A PASTOR OF SOME KIND. THERE WAS TESTIMONY, I THINK, FROM PIXIE THAT, AT ONE POINT, AT ONE OF THE POINTS IN WHICH THE DEFENDANT WAS TALKING ABOUT GETTING RID OF JOEL WAS ON A TRIP THAT THEY HAD TAKEN BACK TO OHIO TO PICK UP A CHECK OF SOME KIND. I GUESS IT WAS SOME KIND OF INSURANCE CHECK OR I DON'T KNOW IF IT WAS SOME KIND OF SOCIAL SECURITY CHECK OR WHAT, BUT THERE REALLY WASN'T ANY DETAIL, AS FAR AS I CAN SEE IN THE RECORD, CONCERNING ANY EMPLOYMENT RECORD. THE ARGUMENT BEING MADE, I THINK BY THE APPELLANT IS TO THE EFFECT THAT BOTH WILLIE AND EDDIE ARE BASICALLY IN THE SAME POSITION. THE TRIAL JUDGE AND HIS FINDINGS AND, OF COURSE, THE TESTIMONY BELOW DEMONSTRATES, TO ME, QUITE THE OBSIT, THAT EDDIE WAS THE -- OPPOSITE, THAT EDDIE WAS THE DOMINANT FACTOR. HE WAS THE INSTIGATOR. HE WAS THE ONLY ONE WHO HAD THE MOTIVE. HE BASICALLY USED, AS A TOOL, WILLIE SEXTON, TO COMMIT THIS MURDER, AND, OF COURSE, THERE WAS A TAPE, ONE OF THE EXHIBITS, THERE WAS A TAPE OF THE DEFENDANT PRESENTING VARIOUS FAMILY MEMBERS IN FRONT OF THE CAMERA AND THE COURT, OBVIOUSLY, CAN REVIEW THAT, TO DETERMINE THAT EDDIE WAS FAR MORE OF A DOMINANT CHARACTER THAN WILLIE SEXTON IN THIS CASE. SO WE SUBMIT THE COURT MADE AN APPROPRIATE FINDING THAT DEATH WAS THE APPROPRIATE CONSEQUENCE. CERTAINLY HE WAS MORE CULPABLE THAN WILLIE, AND OBVIOUSLY WHILE HE DOES HAVE SOME MENTAL FACTORS AVAILABLE TO HIM, WE SUBMIT THIS CASE IS VERY MUCH LIKE THE ROBINSON CASE, WHERE THE COURT FOUND, BOTH STATUTORY MENTAL MITIGATORS, FOUND THAT DEATH WAS THE APPROPRIATE DEATH SENTENCE IN THAT CASE. IF THE COURT HAS ANY OTHER QUESTIONS ABOUT ANY OF THE ISSUES, WE WOULD ASK THE COURT TO AFFIRM THE JUDGMENT AND SENTENCE.

THANK YOU. MR. LANDRY. MS. NORGARD. REBUTTAL.

IN BRIEF REBUTTAL, REGARDING ISSUE ONE, WHETHER OR NOT THE STATE'S CLAIM THAT THE DEATH OF THE INFANT HAS SOME RELEVANCE TO SHOWING DOMINATION AND CONTROL AND PIXIE, THOSE WERE THE SPECIFIC REASONS, IN THE FIRST CASE, WHY WE HAD A REVERSAL, WAS BECAUSE ONLY THIS COURT RULED, THINGS RELATING TO SHOWING DOMINATION AND CONTROL OF WILLIE SHOULD COME IN. THE SECOND REASON THAT THAT WOULD NOT, THE DEATH WOULD NOT HAVE ANY RELEVANCE TO THAT WAS THAT THE STATE DID PRESENT, INAPPROPRIATELY, I BELIEVE, ALTHOUGH THIS, ALSO, WAS NOT OBJECTED TO, THE TESTIMONY OF DR. SOLOMON, DURING THE GUILT PHASE, WHO RELATED, PSYCHOLOGICALLY, WHY WILLIE WOULD HAVE BEEN INCLINED OR WOULD HAVE FELT IT NECESSARY TO DO WHAT HIS FATHER TOLD HIM TO DO, SO THE DEATH OF THE INFANT CASTS NO LIGHT BEYOND THAT AND FAR TO A LESSER DEGREE, IN TERMS OF RELEVANCE ON EITHER OF THOSE TWO POINTS.

CAN YOU FILL THAT BLANK IN FOR ME ABOUT THE PREVIOUS LIFE OF THIS DEFENDANT?

THE INFORMATION ON THAT IS VERY SKETCHY IN THIS RECORD. MR. SEXTON WAS TRAVELING BACK TO OHIO TO OBTAIN DISABILITY CHECKS FROM SOCIAL SECURITY. THAT WAS TESTIFIED TO DURING THE GUILT PHASE. MR. SEXTON WAS ALLAY PASTOR OF SOME TYPE. IT WAS REFERENCED THAT HE MINCE TERD TO HIS FAMILY AND FRIENDS -- THAT HE MINNIES TERD TO HIS FAMILY AND -- THAT HE MINISTERED TO HIS FAMILY AND FRIENDS. THERE WAS TESTIMONY THAT MR. SEXTON HAD HAD A JOB AT SOME POINT, IF HE WAS OBTAINING DISABILITY. BECAUSE THE FAMILY DID HAVE THEIR OWN RESIDENCE. THAT THEY WERE RAISING --

THEY LIVED IN A HOUSE?

THEY LIVED IN A HOUSE OF THEIR OWN. IT WAS A FAIRLY LARGE HOUSE. THEY WERE RAISING 12 CHILDREN IN THE HOME. THERE WAS NO TESTIMONY THAT THE CHILDREN HAD NEVER BEEN, UNTIL THE SERIES OF EVENTS WHICH LED TO THIS, THAT THE CHILDREN WERE EVER SUFFERING FROM PHYSICAL NEGLECT OR AN INABILITY, BECAUSE OF FINANCIAL REASONS, TO PARENT THESE CHILDREN FROM THAT REGARD.

DO YOU KNOW ANYTHING ABOUT HIS EDUCATION OR --

THAT WAS NOT PRESENTED. THAT TESTIMONY WAS NOT PRESENTED. THE PSYCHOLOGICAL TESTIMONY THAT WAS PRESENTED, HOWEVER, WAS VERY CLEAR AND, I THINK, DISTINGUISHS MR. SEXTON'S CASE FROM THAT OF ROBINSON. IN ROBINSON THIS COURT FOUND THAT THERE WAS NO EVIDENCE THAT MR. ROBINSON'S MENTAL INCAPACITS HAD AFFECTED HIS CRIME, AND THAT WAS JUST NOT THE CASE IN MR. SEXTON'S CASE. THE TESTIMONY WAS VERY CLEAR, FROM DR. WOOD, THAT WHAT WAS IN FACT LARGELY RELIED ON BY THE COURT TO ESTABLISH THE CCP OR THE COLD, CALCULATED AND PREMEDITATED, THAT MR. SEXTON WOULD HAVE TROUBLE IN PREPLANNING BECAUSE OF THE DYSFUNCTION TO THE LYMBAL PORTION OF HIS BRAIN AND HIS MEDICAL DIFFICULTIES. IN FACT THERE WAS OBSESSING AND OBSESSING WHEN IT WAS CLEARLY NOT ADVANTAGEOUS TO HIM, HENCE THE REFERENCE OF THE GOOD SNITCH AND THE BAD SNITCH AND THE FACT THAT PEOPLE WERE AFTER HIM AND HAD TO BE ELIMINATED. THE OTHER DISTINGUISHING FACT IN ROBINSON AND THIS COURTED POINT OUST THAT, EVEN THOUGH ROBINSON HAD SOME MENTAL DIFFICULTIES, HE WAS ABLE TO LIVE NORMALLY WITHIN SOCIETY, AND I THINK IT WAS VERY CLEAR THAT MR. SEXTON WAS NOT ABLE TO LIVE NORMALLY WITHIN SOCIETY, TAKING THE FAMILY ON THE INCIDENCE TO OHIO AND WHAT LED TO THIS FLIGHT AND WHERE HE BELIEVED THAT HE AND HIS DAUGHTER HAD SOME CAPABILITY TO COMMUNICATE WITH PEOPLE OUTER SPACE AND THEY WERE GOING TO MARKET THIS. THE RECORD WAS REPLETE, AND SOME OF THE TESTIMONY EVEN CAME FROM JOEL'S FAMILY MEMBERS THAT MR. SEXTON WAS NOT A PERSON WHO WAS ABLE TO LIVE NORMALLY WITHIN SOCIETY, AS WAS DONE IN ROBINSON AND EVEN THOUGH THERE WAS SOME TESTIMONY REGARDING MR. SEXTON AND HIM BEING CLOSED AND GUARDED THAT WAS, ALSO, EXPLAINED BY THE NOT ONLY ORGANIC BUT THE TWO DIFFERENT TYPES OF BRAIN DYSFUNCTION, THAT HE EXHIBITED. I BELIEVE THAT, IF YOU LOOK AT THE CASES THAT THE STATE RELIES ON, IN PROPORTIONALITY REVIEW, THAT THEY ARE DISTINGUISHABLE FROM THIS CASE. THEY EITHER WERE LACKING IN MENTAL MITIGATORS OR THERE WAS NOT THE SIGNIFICANT MENTAL MITIGATION, AND AS THIS COURT KNOWS IT IS NOT SIMPLY A TALLY. WE MUST LOOK BEHIND AND SEE WHAT FACTORS FORMED THE BASIS OF THE FINDING OF THESE AGGRAVATORS, AND IT IS UNDER THAT THEORY THAT EVEN THOUGH CCP IS ONE OF OUR HEAVIER AGGRAVATORS, I BELIEVE IN THIS CASE THE WEIGHT THIS SHOULD BE GIVEN IN THE EQUATION, THE NATURE OF THE MENTAL DISABILITIES THAT CONTRIBUTED TO THAT BY MR. SEXTON. WE WOULD HAVE THIS COURT TO REVERSE, ONCE AGAIN, ASK FOR A NEW TRIAL WITH THE SPECIFIC REQUIREMENT THAT THE TESTIMONY RELATING TO THE DEATH OF THE INFANT BE EXCLUDED. IT WAS A THEME THROUGHOUT THE TRIAL. IT WAS RELIED ON IN CLOSING ARGUMENT. IT WAS RELIED ON AS A BASIS FOR AGGRAVATION BY THE COURT IN ITS SENTENCING ORDER AND IT WAS I AM PER MISERABLY PRESENTED TO THE JURY AS IMPACT EVIDENCE. IT WAS A THREAD THAT WOVE ITSELF THROUGH THE VERY FABRIC OF THIS CASE IN A VERY IMPROPER FASHION.

THANK YOU, MS. NORGARD. YOUR TIME HAS EXPIRED. THANK YOU, COUNSEL. WE WILL BE IN RECESS FOR 15 MINUTES.