YOUR HONOR, MAY IT PLEASE THE COURT. CHRISTINA SPAULDING ON BEHALF OF ROLANDO GARCIA. MR. GARCIA WAS CONVICTED OF THE MURDERS OF ROBERTOAL FANS -- ---ROBERTO ALFONSO AND MARIO AMADOR, ONLY AFTER A BREAK IN PROCEDURE.

WOULD YOU GIVE US THE FACTS OF THESE SEVERAL CASES. WERE THEY ALWAYS TRIED SEPARATELY?

NO. I BELIEVE IT THIS COURT'S OPINION, ON THE LAST DIRECT APPEAL, LAYS OUT HE AND HIS CODEFENDANT STARTED TO GO TO TRIAL TOGETHER. THEY WERE ALSO SEVERED. THERE WERE ALSO A NUMBER OF MISTRIALS AT SEVERAL POINTS IN THIS CASE.

I AM TALKING ABOUT THE CHARGES ON THE SEPARATE MURDERS?

YES, YOUR HONOR. HE WAS ORIGINALLY IMPLICATED IN A TOTAL OF NINE MURDERS. HE HAS NOW BEEN ACQUITTED OF FIVE OF THOSE. AT THE CASE THAT THIS COURT HEARD BEFORE, SIX OF THOSE CHARGES WERE JOINED, SIX MURDER CASES. HE WAS ACQUITTED OF TWO AND CONVICTED OF FOUR. THIS COURT, ON DIRECT APPEAL, REVERSED THE CASE, SAYING THAT THOSE CHARGES HAD BEEN IMPROPERLY JOINED AND DIRECTED THAT THEY BE TRIED SEPARATELY.

SO THE CASE, THEN, WENT BACK, AND THERE WERE TWO CASES THAT PRECEDED THIS ONE TO TRIAL?

RIGHT. THERE WAS ONE THAT HAD NEVER BEEN JOINED. THE MALOTT CASE, WHICH MR. GARCIA WAS ALSO ACQUITTED AND THE PART OF THE DIRECT APPEAL IN THIS CASE OF WHICH MR. GARCIA WAS, ALSO, ACQUITTED ON RETRIAL, AND THIS CASE WAS THE ONE OBVIOUSLY TRIED MOST RECENTLY, AND THERE IS ONE OTHER CASE STILL PENNEDING THAT PRESENTS THE VERY SAME ISSUE PRESENTED HERE, IN TERMS OF THE ADMISSIBILITY OF THE IMPEACHMENT EVIDENCE AGAINST --

THE STATE DIDN'T CALL RIVERA, SO THE ISSUE OF HIS IMPEACHMENT DIDN'T COME UP IN THAT CASE.

EXACTLY, YOUR HONOR. THE VIDEOTAPED TESTIMONY OR THE INITIAL INTERVIEW THAT THE DEFENSE SOUGHT TO USE AS IMPEACHMENT IN THIS CASE, HAD BEEN SUPPRESSED AT MR. GARCIA'S 1988 TRIAL, AT WHICH MR. ROBERO TESTIFIED, IN GREAT DETAIL, ABOUT THE FACTS OF THIS CASE.

YOU SAID THIS CASE, YOU WEREN'T AWARE OF IT?

IT WAS NOT DISCLOSED.

IT WASN'T SUPPRESSED BY A TRIAL JUDGE.

I AM SORRY, YOUR HONOR. IT WAS WITHHELD BY THE STATE, NOT DISCLOSED TO THE DEFENSE.

COULD YOU BE MORE PRECISE, IN TERMS OF WHAT TESTIMONY RIVERA OFFERED AT THIS TRIAL, SPECIFICALLY, THAT YOU CLAIM WAS SPECIFICALLY IMPEACHABLE BY THE TESTIMONY THAT HE GAVE DURING THE COURSE OF THE VIDEOTAPE EXAMINATION? THAT WAS BEFORE A POLYGRAPH EXAMINATION?

RIGHT, YOUR HONOR. THERE IS A POLYGRAPH.

BE VERY PRECISE ABOUT WHAT YOU CLAIM THE TESTIMONY WAS, DURING THE COURSE OF THIS TRIAL, AND THEN WHAT THE ALLEGED IMPEACHING TESTIMONY WAS, DURING THE COURSE OF HIS VIDEOTAPED STATEMENT.

WELL, THERE WERE, PERHAPS THREE PRIMARY AREAS OF IMPEACHMENT. THE MOST SIGNIFICANT OF ALL IS SIMPLY THE VERY DETAILED KNOWLEDGE THAT ROBERO PURPORTED TO POSSESS. HE DESCRIBED THE COMMISSION OF THESE CRIMES, IN INCREDIBLE DETAIL.

THIS IS IN HIS TESTIMONY AT THIS TRIAL.

AT THIS TRIAL. RIGHT.

NOW, HOW DO YOU CLAIM THAT THE VIDEOTAPE STATEMENT CONFLICTS WITH WHAT HE TESTIFIED TO, INSOFAR AS HIS DETAIL?

ON THE VIDEOTAPE, ROBERO SPECIFICALLY, AND THIS IS AT PAGE 603 OF THE SUPPLEMENTAL RECORD. ROBERA SPECIFICALLY TELLS THE POLICE THAT HE IS TELLING THEM ABOUT THE QUOTE ONLY" THE QUOTE ONLY CLOSE QUOTE -- THE "ONLY, CLOSE QUOTE, MURDERS THAT HE KNEW ABOUT, AND THE POLICE ASKED HIM, AND HE RESPONDED BY ANSWERING QUESTIONS ABOUT DIFFERENT MURDERS ENTIRELY. THAT WAS AN INCREDIBLY STRONG PIECE OF EVIDENCE, BECAUSE IT SUGGESTS THAT THE DETAILS THAT ROBERA LATER TESTIFIED TO WERE SUPPLIED TO HIM AFTER THE FACT, THAT HE DID NOT KNOW THEM OR WAS NOT TELLING THEM TO POLICE IN THE INITIAL INTERVIEW. IT COULD NOT ENVISION MORE EVIDENCE OF IMPEACHMENT THAN THIS, RAISING THE EVIDENCE OF COACHING AND FABRICATION. SECONDLY, THIS SAME EXCHANGE WOULD HAVE EXPOSEED, AS A LIE, ROBERA'S CLAIM, ON DIRECTION AT TRIAL, THAT HE HAD TOLD THE POLICE EVERYTHING ABOUT THIS CASE FROM THE START. AT THE END OF THE DIRECTION IN THIS CASE, AFTER HE HAS DESCRIBED THESE MURDERS IN PAINSTAKING DETAIL, IN ORDER TO BOLSTER HIS TESTIMONY, THE PROSECUTOR ASKED HIM ABOUT HIS INITIAL STATEMENT TO POLICE, AND --

BEFORE YOU GO MUCH FURTHER, LET ME ASK YOU THIS. HOW WAS IT FIRST BROUGHT TO THE ATTENTION OF THE POLICE? DID ROBERA COME TO THE POLICE TO TELL HIM ABOUT ALL OF THESE MURDERS?

YES, YOUR HONOR.

AND WHEN I FIRST CAME TO THE POLICE AND DISCUSSED THESE MURDERS, DID HE DISCUSS THE MURDERS THAT ARE THE SUBJECT OF THIS CASE?

AS THE STATE CONCEDES, IN ITS ANSWER BRIEF, HE REFERS TO A GUY NAMED MARIO. HE REFERS TO THE FONT AND BLEW NEIGHBORHOOD WHERE THIS -- THE FONTAINBLEU NEIGHBORHOOD AND SEVERAL OTHER NEIGHBORHOODS WHERE THE CRIMES OCCURRED.

I DIDN'T UNDERSTAND THIS IS THE FIRST STATEMENT THAT HE MADE TO THE POLICE. I THOUGHT HE HAD ALREADY GONE TO THE POLICE AND TALKED ABOUT THESE MURDERS AND NOW, IN PREPARATION FOR A POLYGRAPH --

NO, YOUR HONOR, HE WENT TO THE POLICE ON MAY 5. HE GIVES A STATEMENT THAT IS TAPE-RECORDED, THAT IS AUDIO TAPED. NOW, THAT STATEMENT, THE POLICE, THAT HAD BEEN DISCLOSED TO THE DEFENSE, BUT THE STATE COMPLETELY DISOWNED YITZHAK RACE IN THE 1988 TRIAL. THEY POINTED OUT KAECKTLY THAT THE TAPE -- CORRECTLY, THAT THE TAPE RECORDER HAD BEEN TURNED OFF AND ON DURING THE COURSE OF THE INTERVIEW, BECAUSE THERE HAD BEEN SO MANY POLICE OFFICERS QUESTIONING ROBERA, IT WAS DIFFICULT TO FOLLOW WHO THE SPEAKERS WERE, AND THEN BOTH ROBERA AND THE LEAD DETECTIVE MacCART YOU ARE TESTIFIED THAT ROBERA HAD GARBLED THE FACTS, BECAUSE THERE HAD BEEN SO MANY QUESTIONERS AND BECAUSE HE WAS CONFUSED BY THE POLICE, AND AN HOUR AND-A-HALF LATER, THEY RESTARTED THE INTERVIEW. IT WAS A CONTINUOUS INTERVIEW. HE NEVER LEFT THE POLICE STATION SINCE THIS TIME. THEY STARTED THE VIDEOTAPE, AND WHAT IS CLEAR IS THE ACCURACY IS UNASSAILABLE. IT IS A ONE-ON-ONE INTERVIEW.

IT STARTED MAY 5?

THE STATEMENT BEGAN ON MAY 5 IN THE EVENING AND CONCLUDED AT APPROXIMATELY ONE IN THE MORNING AND THIS ONE BEGAN AT 1:30 IN THE MORNING.

RIGHT AFTER THE FIRST AUDIOTAPE.

EXACTLY. EXACTLY. THERE WAS APPROXIMATELY, I BELIEVE, AN HOUR AND-A-HALF SEPARATING THEM AT THE MOST. SO IT IS ESSENTIALLY HIS CONTINUES INITIAL STATEMENT OF THE POLICE, WHEN HE PRESENTS HIMSELF TO TELL THE POLICE WHAT HE KNOWS ABOUT THESE MURDERS THAT PARDO AND GARCIA HAVE COMMITTED.

DO WE KNOW, FROM THE AID YO VERSION -- FROM THE AUDIO VERSION, WHETHER OR NOT THESE MURDERS, THE TWO THAT ARE THE SUBJECT OF THIS CASE, WERE DISCUSSED ON THE AUDIOTAPE?

ON THE AUDIOTAPE, IN THE RECORD, YOUR HONOR, THE REFERENCES ARE AMBIGUOUS. THERE IS A GUY NAMED MARIO, AS IN THE VIDEOTAPE, HE SIMILARLY SAYS, HAS, BELIEVES THAT MARIO IS THE SECOND PERSON WHO IS KILLED WITH LEWIS ROBLADO, WHICH WAS A SEPARATE HOMICIDE. SO HE, EITHER, IN TALKING ABOUT SOMEBODY ELSE ENTIRELY, NOW, ON THE VIDEOTAPE, THE QUESTION IS PUT, MOST EXPLICITLY TO HIM, WHO IS MARIO? AND HE PROCEEDS TO DESCRIBE A DIFFERENT CASE ENTIRELY. HE KNOWS NOTHING ABOUT THIS CASE OR HE IS SAYING NOTHING ABOUT THIS CASE. NEVERTHELESS, ON DIRECTION, THE PROSECUTOR ASKS HIM, WHETHER, IN HIS INITIAL STATEMENT, BEGINNING ON MAY 5, QUOTE, DID YOU TELL THEM WHAT THE DEFENDANT AND THE CODEFENDANT, PARDO, HAD TOLD YOU ABOUT MARIO? ANSWER: YES, I DID.

THE PAGE IS ON DIRECTION AT THIS TRIAL.

AT THIS TRIAL, PAGE 2189. THE VIDEOTAPE WOULD HAVE CONCEDED THAT ROBERA DID NO SUCH THING. IN HIS NIFBL STATEMENT TO POLICE HE WAS LYING WHEN HE SAID THIS. THIS VIDEO TAPE WOULD HAVE EXPOSEED THAT. BY ELICITING THIS TESTIMONY AND THEN RENDERING THE DEFENSE POWERLESS TO IMPEACH ROBERA, THE PROSECUTION MISLEAD THE -- MISLED THE JURY AS TO ROBERA'S CANDOR AND CONSISTENCY. THEY, THEN, ADDED INSULT TO INJURY, BY ARGUING IN CLOSING THAT, UNDERSTAND THE AMAZING SYSTEM OF JUSTICE, THE DEFENSE HAD BEEN GIVEN FREE RANGE TO IMPEACH ROBERA, BUT THEY DID NOT SHOW THAT HE WAS LYING, AND THAT IS BECAUSE THEY SUPPRESSED THE MOST POWERFUL IMPEACHMENT EVIDENCE IN THIS CASE. THE SIGNIFICANCE WAS UNDER SCORED BY THE FACT THAT IT WAS INITIALLY WITHHELD FROM THE DEFENSE. SECONDLY BY THE FACT THAT, ONCE THE DEFENSE WAS PROPERLY ALLOWED TO USE IT AS IMPEACHMENT IN THE MALOTTE CASE, THEY USED IT AS EVIDENCE, AS THEY WOULD HAVE HERE, TO SHOW THAT ROBERA'S INITIAL STATEMENT TO POLICE WAS, THEN, ADJUSTED TO FIT OTHER EVIDENCE THAT THE POLICE FOUND. THAT WAS ONE OF THEIR THEORIES IN THE MALOTTE CASE, AND THE JURY FOUND ROBERRA NOT TO BE CREDIBLE. THEN IN THE NEXT CASE, THE STATE DECIDED NOT CALL ROBERRA AS A WITNESS. MR. GARCIA WAS, AGAIN, ACQUITTED  ACQUITTED.

IS THERE ANYTHING AS TO HOW HE PORTRAYS HIMSELF, MONEY VERSUS NO MONEY AND WHETHER HE WAS THE INITIALIATE OR AND THAT DIRECTLY CONTRADICTS WHAT TESTIMONY HE GAVE?

YES, YOUR HONOR. THAT WAS THE THIRD SIGNIFICANT AREA OF IMPEACHMENT WAS ROBERRA'S IMPEACHMENT OF SELF. THE VIDEOTAPE WOULD HAVE ALLOWED THE DEFENSE IT SHOW HOW ROBERRA CHANGED THE NATURE OF HIS RELATIONSHIP WITH PARDO AND GARCIA, AS SHOWN TO THE POLICE, BY THE STATEMENT ON THE TAPE SHOWN TO THE JURY. MR. ROBERRA WAS BOASTFUL AND GRANDIOSE AND EXCITED ABOUT THE FACT THAT HE WAS INVITED TO GET INVOLVED IN THE INCIDENT. HE TESTIFIED ABOUT LOANING GARCIA MONEY. WHEN HE TESTIFIES AT TRIAL, THE ROLES ARE COMPLETELY REVERSED. HE IS RECAST AS THE NAIVE SUPPLEMENT AND PETITIONED TO GET INVOLVED IN THIS EVENT, BECAUSE HE SEES IT AS A WAY OUT OF HIS FINANCIAL DISTRESS.

HAS PARDO BEEN CONVICTED TO ALL OF THESE MURDERS?

YES, YOUR HONOR, AND IN HIS TRIAL HE CONFESSED TO THE MURDERS AND INSISTED THAT GARCIA HAD NO PART IN THEM.

WHAT IS THE STATUS OF HIS CASE, IF YOU KNOW?

HE IS IN POSTCONVICTION, I BELIEVE. IT IS ON DIRECT APPEAL.

WHAT IS THE ARGUMENT, AND IT IS HARD, WITHOUT LOOKING AT EXACTLY ALL OF THE TESTIMONY, THAT HIS TESTIMONY WAS DIFFERENT IN THIS CASE, HIS, ROBERRA'S, THAN IN THE 1988 CASE, AND THAT, WHILE THAT MIGHT HAVE BEEN IMPEACHMENT IN 1988, BECAUSE HIS TESTIMONY THIS TIME IS DIFFERENT AND IT IS NOT REALLY MUCH IMPEACHMENT, WHICH STRIKES ME AS SORT AFTER DIFFICULT ARGUMENT FOR THE STATE TO MAKE, BUT HOW DO YOU RESPOND TO THAT? I MEAN, HOW DO YOU GET TO THAT IMPEACHMENT, IF A GUY, NOW, IS TESTIFYING, NOW THAT HE KNOWS YOU HAVE THE VIDEOTAPE SOMEWHAT DIFFERENTLY TO AVOID BEING IMPEACHED BY THIS TESTIMONY.

RIGHT. THAT IS EXACTLY IT, YOUR HONOR. BECAUSE THE STATE ISN'T SAYING THAT, I MEAN, THEY ARE NOT DENYING THAT THERE ARE MAJOR INCONSISTENCIES BETWEEN THE VIDEOTAPE AND THE '88 TESTIMONY. WHAT THEY ARE BASICALLY SAYING IS, AS LONG AS HE DIDN'T REPEAT THOSE LIES IN 1988, THE DEFENSE WASN'T ENTITLED TO LET THE JURY KNOW ABOUT THEM, BUT I THINK, UNDER THE RUB RICK, THAT MATTERS -- UNDER THE RUBRIC, THAT MATTERS RELATING TO CREDIBILITY, THAT SURELY THE DEFENSE WOULD HAVE BEEN ENTITLEED TO SHOW HOW ROBERRA MODULATEED HIS TESTIMONY TO SUIT THE NEEDS OF THE STATE'S CASE, INCLUDING POTENTIALLY THE FACT THAT WHAT IMPEACHMENT WAS AVAILABLE TO THE DEFENSE. I MEAN, IN 1988, ROBERRA EVEN LIED ABOUT THE AMOUNT OF TIME HE SPENT AT THE POLICE STATION, CONCEALING THE EXISTENCE OF THE SECOND PART OF THIS INTERVIEW.

DID YOU EVER GET TO THE POINT OF SAYING I WANT TO PUT THIS STATEMENT IN OR NOT THAT PART, BECAUSE MY UNDERSTANDING IS THAT IT WAS NOT UNDER OATH, AND THE POLYGRAPH, IT WASN'T GOING TO GET TO IT. DID YOU EVER GET TO THE PART OF HOW WOULD YOU HAVE OFFERED IT OR DONE IT?

THAT'S THE THING, YOUR HONOR. THE JUDGE SAID IT WAS ENTIRELY OFF-LIMITS, SO THERE WAS NEVER ANYTHING AS TO HOW THIS WOULD OR WOULD NOT BE PROPER IMPEACHMENT. THE TRIAL COURT'S RULING, THE RULING ABOUT THE POLYGRAPH, I THINK, THE STATE DOESN'T CORRECTLY TRY TO DEFEND ON APPEAL. THE JUDGE SAID THAT, IF A POLYGRAPH WAS INVOLVED IN THIS IN ANY WAY THAT, THE STATEMENT WOULD NOT HAVE COME IN, BUT THE RESULTS SHOWN THAT A POLYGRAPH EXAM ADMINISTERED IN CONNECTION WITH THIS INTERVIEW. SECONDLY, THE RULING THAT THE DEFENSE COULDN'T USE THESE TAPES FOR IMPEACHMENT BECAUSE THEY WEREN'T UNDER OATH IS CONTRARY TO THE BLACK LETTER OF THE LAW THAT PRIOR INCONSISTENT STATEMENTS USED FOR IMPEACHMENT DON'T NEED TO BE UNDER OATH, AND THEN FINALLY, THE TRIAL COURT, THE THIRD ROUND WAS THAT IT SIMPLY WASN'T RELEVANT, BECAUSE HE DOESN'T SAY ANYTHING ABOUT THE AMADORE, ALFONSO CASE, IN THE COURSE OF THIS INTERVIEW, BUT THAT WAS, WE SUBMIT, THE MOST DAMNING IMPEACHMENT OF ALL, BECAUSE IT DIRECTLY CONTRADICTED WHAT ROBERRA SAID ON DIRECTION.

AS FAR AS THE ISSUE ON PARDON-, I HAVE -- ON PARDO, I HAVE GOT CONCERN ABOUT HOW BROAD OR NARROW THE SIMILAR LANGUAGE IS. CLEARLY, IF A CODEFENDANT SAYS. THE CODEFENDANT IS NOT GUILTY AND THEY ARE NOT ON TRIAL TOGETHER, THE STATE DOESN'T REALLY HAVE ANY DIRECT REASON, MOTIVE, TO SHOW THAT THAT IS NOT TRUE. HOW, IN THIS CASE, THEN IS, WHAT IS YOUR STATEMENT AS TO HOW BROAD OR NARROW THE SIMILAR MOTIVE IS, IN ORDER TO ALLOW IT IN AND --

RIGHT. I THINK, YOUR HONOR, IT IS A FAIRLY FACTO SPECIFIC INQUIRY, AND HERE, BY LOOKING AT THE RECORD OF THE PARDON-CASE AND HOW THE STATE CONDUCTED ITSELF, I THINK IT SHOWS THAT THEY DID HAVE A SIMILAR MOTIVE.

THE SIMILAR MOTIVE WAS JUST TO IMPEACH HIS CREDIBILITY OR TO SHOW THAT GARCIA WAS INVOLVED?

RIGHT.

I THINK THAT THE LANGUAGE IN THE CASE LAW IS WHETHER THE STATE HAD A SIGNIFICANT INTEREST IN DISBELIEF OF THAT WITNESS'S VERSION OF EVENTS, AND THE VERSION OF EVENTS THAT IS RELEVANT, HERE, IS PARDON-'S EXONERATION OF GARCIA, AND WHAT HAPPENED, IN -- IS PARDO'S EXONERATION OF GARSIA, AND WHAT HAPPENED IN TRIAL IS, IN PART, IN PARDO'S TESTIMONY, IT INDUCED THE JUDGMENT AGAINST GARCIA. CLEARLY IT WAS DISBELIEF, WHEN PARDO SAID THAT GARCIA HAD NO PART IN THESE MURDERS AND FURTHER QUESTIONED PARDO ABOUT GARCIA'S PART IN TWO OTHER MURDERS.

WHEN YOU GET TO THAT PART OF THE QUESTIONING, "ROLANDO GARCIA WASN'T WITH YOU?" ANSWER, IN THE MURDER. QUESTION, HE WASN'T HOLDING THE GUN IN THIS MURDER?

ANSWER, NO. FURTHER, TO GET THIS IN, ISN'T THAT SOMETHING THAT YOUR CLIENT WAS INVOLVED IN, AND DOESN'T THAT CREATE SOME ADDITIONAL PROBLEMS?

AGAIN, YOUR HONOR, THEY NEVER GOT TO THAT POINT OF WHETHER THERE WOULD HAVE BEEN A WAY TO TAYLOR THAT TESTIMONY, SO THE OTHER MURDERS WOULDN'T COME IN, BECAUSE THAT WAS CERTAINLY THE EFFORT, BUT CERTAINLY IF THE DEFENSE HAD BEEN ALLOWED TO USE PARDO'S FORMER TESTIMONY EXONERATING HIM, THEY MAY WELL HAVE MADE A TACTICAL DECISION, PARTICULARLY SINCE MR. GARCIA HAS NOW BEEN ACQUITTED OF MOST OF THESE HOMICIDES, THAT PERHAPS IT WAS WORTH OF RISK, BUT THEY DIDN'T GET TO EXACTLY THAT POINT BUT THE CASE LAW IS CLEAR THAT THE FACT THAT THEY DIDN'T SPECIFICALLY PURSUE THAT SAME LINE OF CROSS-EXAMINATION AS TO AMADORE ALFONSO DOESN'T RENDER THE STATEMENT INADMISSIBLE. I MEAN, IF THIS COURT'S OWN PRESENCE ON FORMER TESTIMONY MAKES CLEAR FOREGONE OPPORTUNITIES FOR CROSS-EXAMINATION DON'T MAKE THE TESTIMONY INADMISSIBLE.

ISN'T THAT DIFFERENT, THOUGH, FROM FAULTING THE STATE, REALLY, NOW, WITH THE STATE HAVING A TRIAL OF ONE INDIVIDUAL, IN WHICH THEIR FOCUS IS TO ESTABLISH THE GUILT OF THAT INDIVIDUAL AND THEN, IN A CAPITAL PROCEEDING, ALSO SEEKING THE IMPOSITION POSITION OF THE -- THE IMPOSITION OF THE DEATH PENALTY ON THAT PARTICULAR INDIVIDUAL, ALMOST THE STATE'S MOTIVATION WOULD ALMOST BE CONTRARY, WOULDN'T YOU THINK, TO THE INVOLVEMENT OF. THE INDIVIDUAL, AND THAT IS THAT THE MORE THE DEFENDANT THERE, PARDO, IS SAYING, NO, I DID IT. I DID THEM ALL. I AM PROUD OF IT, AS A MATTER OF FACT, AND, NO, THIS OTHER GARCIA FELLOW WASN'T INVOLVED AT ALL. IT WAS ME. I MEAN, ISN'T THE STATE'S MOTIVATION THERE, REALLY, IN SEEKING TO HAVE THE GUILT OF PARDO ESTABLISHED AND THEN THE DEATH PENALTY IMPOSED, TO GO ALONG WITH THAT, NOT TO CHALLENGE PARDO AND SAY, NO, WAIT A MINUTE. YOU HAD A PARTNER IN THIS THAT WAS JUST AS MUCH AS AT FAULT AS YOU, AND IF THE PARTNER DID THESE THINGS OR WHAT DID THE PARTNER DO, ISN'T THE MOTIVATION AND THE FOCUS COMPLETELY DIFFERENT, AND WOULDN'T IT BE UNFAIR, VIRTUALLY, TO THE STATE, TO EXPECT THEM, THEN, TO CROSS-EXAMINE PARDO AND SAY, NO, WE WANT TO CHALLENGE YOU, WHEN YOU SAY IT WAS ALL YOUR FAULT, IN A TRIAL IN WHICH THEY ARE SEEKING TO HAVE THE DEATH PENALTY IMPOSED ON PARDO?

IT MIGHT IN THE ABSTRACT, YOUR HONOR, BUT IN THIS CASE, I THINK THE RECORD BELIES THAT, BECAUSE THEY RAISED THE ISSUE, AND THEN THEY DID SPECIFICALLY CONTEST HIS EXONERATION OF GARCIA, AND IN FACT, THE SAME PROSECUTOR IN THIS CASE SPECIFICALLY TOLD THE JURY, IN CLOSING ARGUMENT, IF IN PARDO'S CASE, THAT EVEN THOUGH HE HAS ADMITTED TO THE FACTS OF THIS CRIME, IT IS STILL IMPORTANT FOR YOU TO DETERMINE THE TRUTH OF THE MATTER AND THEN, CONTRARY TO THE REPRESENTATION OF THE TRIAL COURT, SPENT A SIGNIFICANT PART OF THEIR TIME NOT DISPUTING THE INSANITY DEFENSE, WHICH PARDO, HIMSELF, HAD DISAN INVOLVED HAVE -- DISA VOUVED -- DISAVOWED, BUT THAT WOULD BE A GIFT TO HIM, AS FAR AS OBTAIN AGO CONVICTION, BUT THEY SPECIFICALLY EXCLUDEED, INCLUDING HIS EXONERATION OF GARSIA, SO HIS OWN CONDUCT AT THIS TRIAL BELIED THE REPRESENTATION THAT THEY MADE TO THE TRIAL JUDGE ABOUT WHAT WAS THEIR PURPOSE. THEY CLAIMED THEY WERE COMPLETELY UNINTERESTED IN THIS SUBJECT, AT PARDO'S TRIAL, BUT THAT WAS NOT CERTAINLY THE CASE, BASED ON THE RECORD. YOU WOULD HAVE TO ESTABLISH AN OVERRIDING PRINCIPLE FOR EVERY CASE. I THINK THE INQUIRY UNDER THE STANDARD FOR ADMISSIBILITY IS VERY FACTO SPECIFIC, AND THE FACTS OF THIS RECORD SHOWS THAT THE STATE DID HAVE THE STRONG MOTIVE TO DISPUTE PARDO'S VERSION OF EVENTS, INCLUDING GARCIA'S ROLE IN THE CRIMES.

YOU ARE IN YOUR REBUTTAL.

THANK YOU. IF THERE ARE NO MORE QUESTIONS, JUST TO CONCLUDE, THE BOTTOM LINE IN THIS CASE IS THAT, WHEN MR. GARCIA HAS HAD A FAIR TRIAL, AND WHEN HE HAS HAD THE OPPORTUNITY TO CONFRONT ROBERA, WHEN A JURY HAS HAD COMPLETE AND ACCURATE INFORMATION UPON WHICH TO JUDGE ROBERRA'S CREDIBILITY, THAT IS DIFFERENT CIRCUMSTANCES, AND UNDER THIS CIRCUMSTANCE, WHICH CLEARLY WAS UNFOUNDED TESTIMONY, AS TO IMPEACHMENT, IT CANNOT BE CONSIDERED HARMLESS.

> MAY IT PLEASE THE COURT. MY NAME IS KIM HOPKINS, REPRESENTING THE STATE OF FLORIDA. BEGINNING WITH THE FIRST ISSUE REGARDING THE IMPEACHMENT OF MR. ROBERRA, IN MR. ROBERRA'S MOST RECENT TESTIMONY IN 1988, STATE HAD AVAILABLE TO IT NUMEROUS TESTIMONY WITH WHICH THEY WERE ABLE TO IMPEACH MR. ROBERA. THEY HAD HIS 1988 TRIAL TESTIMONY AND TWO OTHER STATEMENTS HE MADE TO POLICE. IN SPITE OF THAT FACT, THE 221 PAGES OF EXPERT TESTIMONY FROM THE AUDIOTAPE IS WHAT THEY SEEK TO REVERSE ON, IN TERMS OF IMPEACHMENT. AS WE PREVIOUSLY DISCUSSED, THIS PARTICULAR INTERVIEW WENT ON FOR MANY HOURS, WITH THE POLICE, PRIOR TO THE POLYGRAPH BEING DONE.

BUT THE QUESTION, HERE, REALLY, IS F IS THE DEFENSE CORRECT, WHEN THEY SAY THAT, IN THE AUDIOTAPE AND THE VIDEOTAPE, THERE IS NO REFERENCE TO THESE MURDERS?

WITH RESPECT TO THE PORTIONS THAT WERE OFFERED FOR THE JUDGE FOR IMPEACHMENT, I THINK THAT IS WHAT I WAS GOING TO POINT OUT, YOUR HONOR, IS THAT, WHILE THERE ARE MANY HOURS OF TAPES, ONLY PORTIONS WERE REDACTED FOR THE JUDGE TO LOOK AT. DURING THE COURSE OF TRIAL, THE FIRST TIME HE SEES ANYTHING TO DO WITH ANY OF THESE TAPES, IS RIGHT BEFORE CROSS-EXAMINATION BEGINS AND AFTER DIRECT HAS HAPPENED TO MR. ROBERRA, SO HE ASKED FOR A BREAK TO LOOK AT THESE TAPES, AND WHAT HE SEES IS THE PORTION THAT IS THE DEFENSE REDACTED, TO TRY TO USE AS IMPEACHMENT, AND THERE IS NOTHING IN THE PORTIONS OF TRANSCRIPT AVAILABLE IN THE RECORD THAT HAD ANYTHING TO DO WITH THESE MURDERS. IF YOU READ THE CONTEXT OF 341 PAGES, THEY ARE DEALING WITH THE MURDERS OF TWO WOMEN. THEIR NAMES WERE SARAH ANSAR A. AND THAT IS THE -- WERE SARAH AND SARAH. AND THAT IS THE CASE OUT THERE IN THE PENDING TRIAL, AND INVESTIGATORS ARE WORKING VERY HARD TO KEEP MR. R ON OBERRA ON THE CONTENT OF THESE TWO MURDERS. THEY WANT TO GO INTO THE DETAILS OF EVERYTHING THAT DID HAPPEN, AND HE HAS GOT SO MUCH TO TELL THEM, BECAUSE THERE ARE NINE MURDERS DISCUSSED, BECAUSE IT IS VERY DIFFICULT FOR HIM, IN TERMS OF THE CHRONOLOGY, FOR HIM TO GO THROUGH.

YOU SAY IN THE TESTIMONY THAT WAS NOT, QUOTE, REDACTED, THAT HE DID IMPLICATE.

NO, YOUR HONOR. I BELIEVE THE DEFENSE IS CONCEDING THAT THEY DID NOT DISCUSS THAT IS, BUT WHAT IS MORE IMPORTANT FOR THESE PARTICULAR PURPOSES OF IMPEACHMENT, WE REALLY, REALLY WANT TO LOOK AT WHAT THE DEFENSE WAS TRYING TO GET IN, AND IT IS ONLY THIS ONE PORTION OF THE MANY HOURS OF THE INTERVIEW THAT DEAL WITH THE MURDER OF THESE TWO WOMEN.

IF THAT HAD HAPPENED, WOULD THE STATE HAVE BEEN ABLE TO PUT IN OTHER PORTIONS OF THAT EVIDENCE?

YOU MEAN, IF OTHER PORTIONS OF THE TAPE DID DISCUSS?

YES.

THEORETICALLY, I SUPPOSE THAT THEY COULD, BUT THEY DIDN'T DISCUSS THAT, AND THAT IS THE BASIS OF THE TRIAL JUDGE'S RULING, AND WHILE THEY DID DISCUSS -- THEY DID EMPHASIZE THAT IT IS A PREPOLYGRAPH AND NOT UNDER OATH, HE ALSO EMPHASIZED THE FACT THAT IT WAS NOT PROPER, RELATIVE TO THE MATERIAL ISSUES OF THIS TRIAL, AND THAT IS THE REASON IT DIDN'T COME IN AS IMPEACHMENT EVIDENCE. THE OATH GOES TO SUBSTANTIVE, HOW IT CAN BE USED AS SUBSTANTIVE EVIDENCE, WHICH THEY ARE ASSERTING THAT THEY DIDN'T TRY TO GET IT IN AS SUBSTANTIVE EVIDENCE, BUT THAT GOES TO JUSTICE PARIENTE'S QUESTION. HOW DO THEY SHOW, IF THEY WANT TO SHOW THAT HE LIED IN PREVIOUS STATEMENTS OR AT TRIAL, IF HE DIDN'T SAY SOMETHING THAT IS IMPEACHABLE IN THE 1988 TRIAL?

LET ME ASK THIS. IF IT WAS -- I AM NOT SURE I UNDERSTOOD, BUT I UNDERSTOOD THAT THIS EVIDENCE DID COME IN AT. THE TRIAL FOR MR. GARCIA?

IN MY IMMEDIATE RECOLLECTION, YOUR HONOR, IT IS THAT IT DIDN'T COME IN WITH THIS TRIAL JUDGE. THIS TRIAL JUDGE HAD NEVER SEEN IT.

BUT IT CAME IN, WHETHER. THE TRIAL OR NOT, IN. THE TRIAL OF MR. ,. THE TRIAL JUDGE,. THE TRIAL FOR MR. GARCIA. THIS EVIDENCE WAS INTRODUCED. IS THAT CORRECT?

YOUR HONOR, ACTUALLY I AM DRAW AGO BLANK, AS TO WHETHER IT DID OR NOT. I AM CONFUSING IT WITH THE PARDO TESTIMONY F THEY REPRESENT THAT, I HAVE NO REASON TO DISAGREE WITH THAT.

WAS THAT THE RESULT OF AN ACQUITTAL OF MR. GARCIA OF THIS TRIAL?

HE HAS BEEN ACQUITTED OF ALL OTHER TRIALS OTHER THAN THE PENDING TRIAL, SO, YES, THAT WOULD BE THE CASE, BUT ALSO IN OTHER TRIALS, I BELIEVE THAT PART OF HIS TESTIMONY WAS ADMITTED. WHAT WE HAVE TO LOOK AT HERE IS THE TRIAL COURT RULING IN THIS MANNER. HE WAS PRESENTED WITH THE CASE LAW AS TO WHETHER OR NOT YOU CAN USE THIS AS IMPEACHMENT. HE WAS USING THE RULES THAT ARE AVAILABLE, OF EVIDENCE, IN ORDER TO DETERMINE WHETHER THIS IS GOING TO COME IN, AND WHAT WE HAVE TO LOOK AT AT THIS LEVEL IS WHETHER IT WAS CLEARLY AN ERRONEOUS MISTAKE AND ABUSE OF DISCRETION ON HIS PART, IN ORDER TO DO THAT, AND IF YOU ARE LOOKING AT THAT, WHAT THEY ARE ASKING YOU --

ARE YOU ARGUING THAT YOU CAN NOT IMPEACH BY THE ABSENCE? BECAUSE AS I UNDERSTAND IT, WHAT WE HAVE HERE IS THE FACT THAT THE WITNESS DID NOT DISCUSS THESE TWO MURDERS DURING THE STATEMENT.

CORRECT. AND THAT IS --

ARE YOU TELLING US, THEN, THAT THE ABSENCE OF INFORMATION IS NOT IMPEACHABLE?

IN THIS PARTICULAR INSTANCE, IT IS NOT APPROPRIATE IMPEACHMENT. THERE ARE INSTANCES WHERE THE OMISSION OF FACTS WOULD BE APPROPRIATELY IMPEACHABLE, AND THAT IS WHERE THE SUBJECT MATTER OF THE OMISSION WOULD BE NATURALLY RELATED TO THE DISCUSSION, AND HERE IT IS CLEARLY NOT NATURALLY RELATED, AND I WOULD URGE THIS COURT TO REVIEW THIS TRANSCRIPT, BECAUSE THEY ARE REPEATEDLY FOCUSING ON JUST TWO INDIVIDUALS OUT OF NINE.

WHAT ABOUT THE REPRESENTATION THAT HE SAID THAT HE TOLD THEM, THE FIRST TIME THAT HE SPOKE TO THEM, WHICH THIS WOULD BE PART OF THIS FIRST TIME, EVERYTHING ABOUT ALL OF THE CRIMES THAT HE KNEW ABOUT. DID HE SAY THAT IN THIS TRIAL?

HE SAID THAT HE WAS TRUTHFUL WITH THE POLICE FROM THE BEGINNING.

DID HE SAY SOMETHING TO THE EFFECT THAT HE TOLD THEM EVERYTHING ABOUT THE CRIMES?

IN THEIR BRIEF, I DON'T BELIEVE THAT HE SAYS, SPECIFICALLY, I TOLD THEM ABOUT THE AMADORE MURDERS, AND TO THE EXTENT THAT HE DOES, YOUR HONOR, IS THERE A 12-YEAR DIFFERENCE HERE. WE ARE TALKING ABOUT 12 YEARS BETWEEN THE TIME IN 1986, WHEN HE GIVES HIS STATEMENT, AND 198898, WHEN HE IS AT THE TRIAL. -- AND 1998, WHEN HE IS AT TRIAL.

HE WOULD HAVE MORE DETAIL IN 1986 THAN HE WOULD HAVE 12 YEARS AFTER, UNLESS HE HAS BEEN COACHED.

NO, YOUR HONOR.

ISN'T THAT THE ARGUMENT, THOUGH, THAT THE DEFENDANT, WHO WAS CROSS-EXAMINING THE CHIEF WITNESS FOR THE STATE, HAS THE RIGHT TO BE ABLE TO ARGUE TO THE JURY?

YOUR HONOR, THEY COULD ARGUE THIS TO THE JURY. THEY COULD MOST DEFINITELY DO IT AND AS DEFENSE COUNSEL HAS REPRESENTED HERE TODAY, THE MOST EGREGIOUS MISREPRESENTATIONS BUT WHAT THEY SAY ARE IMPEACHABLE FACTS, CAME FROM HIS 1988 TRIAL TESTIMONY, AND THEY POINTED REPEATEDLY TO THIS TESTIMONY, TO SHOW THAT THEY HAD THAT IN 1998. WELL, THEY HAD IT TO IMPEACH HIM AND THEY HAD TWO OTHER STATEMENTS TO SHOW FROM THE POLICE.

WOULD IT BE HARMLESS THAT HE WAS IMPEACHED WITH EVERYTHING ELSE? THAT THE DEFENDANT DIDN'T REALLY NEED THIS? THAT IT WOULD HAVE BEEN CUMULATIVE? IS THAT YOUR ARGUMENT?

THAT IS AN ARGUMENT, YES, THAT IT WAS HARMLESS, BECAUSE THEY HAD MORE THAN YOU WOULD NORM HEAL EVER HAVE WITH A -- NORMALLY EVER HAVE WITH A WITNESS, IN TERMS OF --

BUT HE DIDN'T GIVE THEM ANY DETAIL, IN 18986, ABOUT THESE -- IN 1986, ABOUT THESE MURDERS. WE ARE GOING TO FIND THAT AS IMPEACHMENT IN THIS RECORD?

YOU DIDN'T HAVE THOSE STATEMENTS, YOUR HONOR, AND YOU ARE TALKING ABOUT SOMEONE RECALLING OVER A COURSE OF DAYS THAT HE SPOKE TO POLICE. NOW, TO SAY THAT SOMEHOW YOU SHOULD HOLD HIM IMPEACHABLE FOR THE FACT THAT HE DIDN'T MENTION THESE MURDERS OUTRIGHT, YOU HAVE TO, AGAIN, POINT TO THE CONTEXT OF THESE STATEMENTS, BECAUSE --

THIS IS A JURY THAT HAS THE RIGHT TO DECIDE THAT?

NO, NOT IN THAT PARTICULAR INSTANCE, YOUR HONOR. IT WAS UP TO THE TRIAL JUDGE TO DECIDE, IF THIS WAS SOMETHING THAT WAS AN APPROPRIATE TOOL FOR THE DEFENSE TO USE FOR THE PURPOSE THAT THEY WERE ASSERTING.

WITH ABOUT THE PART THAT HE PORTRAYED HIMSELF IN THE VIDEO STATEMENT THAT HE WAS A BIG SHOT AND THAT THEY WERE FINANCIALLY DISTRESSED, AND THE EXACT OPPOSITE OF THAT IN THE, HIS TRIAL TESTIMONY, THAT HE WAS THE ONE THAT WANTED TO BE INCLUDEDED IN THE DRUG DEAL. WASN'T THAT PRETTY SIGNIFICANT IMPEACHMENT ABOUT HIS RELATIONSHIP WITH GARSIAN PARDON-, AS TO -- WITH GARCIA AND PARDO, AS TO WHETHER HE WAS THE GUY THAT GOT THEM INVOLVED?

NO, YOUR HONOR. SPECIFICALLY WHAT THEY WERE TRYING TO IMPEACH WERE COLLATERAL ISSUES. THERE WAS NO IMPEACHMENT AS TO THE FACTS OF THE ORIGINAL CRIME, THAT HAD HE BEEN TOLD BY PARDO AND GARSIA, IN TERMS OF --

THIS IS FIRSTHAND AS TO WHAT GARCIA DID. HE WAS TOLD THIS. THAT IS WHAT HE SAID. HE SAID GARCIA TOLD HIM, CORRECT?

YES.

SO WOULDN'T THE RELATIONSHIPS THAT HE HAD WITH GARCIA, THAT IS WHETHER HE WAS THE BIG GUY AND THEY WERE COMING IN OR VICE VERSE, A BE VERY SIGNIFICANT IN THAT SITUATION, WHERE IT IS SOLELY THE QUESTION AS TO WHETHER GARCIA TOLD HIM THIS OR NOT?

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

IS ROBERRA, IS THERE ANY PHYSICAL EVIDENCE THAT LINKS GARCIA UP TO THESE TWO MURDERS? IN OTHER WORDS, ANYTHING THAT THE STATE WAS ABLE TO PUT ON, AS FAR AS FINGERPRINTS AT THE SCENE?

NOT AT THE SCENE, YOUR HONOR. THERE WAS, ONE OF THE MURDER VICTIM'S ID'S WAS USED TO PURCHASE GUNS AFTER THE FACT, AND GARCIA'S FINGERPRINTS WERE ON THE PAPERWORK THAT USED THAT ID AFTER THE VICTIM WAS DEAD, AND THAT IS THE ONLY HARD EVIDENCE.

BUT PARDO, HIS TESTIMONY ALLOWED IN, EXPLAINS HOW THAT PURCHASE WAS MADE, CORRECT? HE SAYS THAT GARCIA HELPED HIM MAKE THE PURCHASE OF THE GUNS.

YES. AND, WELL, YES, AND IF WE CAN TURN TO THE STATEMENT OF WHETHER PARDO SHOULD BE ADMITTED, THERE IS NO OTHER PHYSICAL EVIDENCE, TO ANSWER YOUR QUESTION NOW.

THERE IS ONE THING THAT CONCERNS ME ABOUT THIS ROBERRA'S TESTIMONY ABOUT BEING OMITTED, AND THAT IS THE CLOSING ARGUMENT BY THE STATE, WHERE THEY SAY THAT THE DEFENSE HAD EVERY OPPORTUNITY TO DEVELOP ANYTHING THAT THEY THOUGHT WOULD BE OF USE TO THEM OR THE STATE, AND THAT IS AN AMAZING SYSTEM, THAT THE DEFENDANT HAD A CHANCE TO SIT IN THE COURTROOM WITH HIS ACCUSERS AND THE ATTORNEY IS GIVEN THE CHANCE TO ASK WHATEVER THE DEFENSE THINKS IS APPROPRIATE IN THE AREA OF CROSS-EXAMINATION, AND THERE WAS NOTHING DEVELOPED TO SHOW THAT PARDO WAS LYING.

THERE IS NOTHING SPECIFICALLY STATED IN OBJECTIONS, YOUR HONOR AND THAT IS NOTHING THAT THEY RAISED BEFORE THIS COURT FOR REVIEW, BUT TO THE EXTENT THAT THEY WERE ABLE TO REVIEW ALL ADMISSIBLE IMPEACHMENT EVIDENCE, THEY WERE ABLE TO REVIEW EVERYTHING, SO IT IS A FALSE STATEMENT ON THE PART OF THE PROSECUTOR, TO THE EXTENT THAT IT WAS ADMISSIBLE IMPEACHMENT EVIDENCE, NOTHING WAS PRECLUDED FROM BEING USED. TURNING, THEN, TO THE OTHER ISSUE THAT WAS DISCUSSED REGARDING PARDO'S TESTIMONY, THEY ASSERTED AT TRIAL AND ON APPEAL THAT THAT WAS ADMISSIBLE AS THE FORMER TESTIMONY, EXCEPTION TO THE HEARSAY RULE, AND THE COURT BELOW DETERMINED THAT THAT WAS NOT APPROPRIATE, BECAUSE THERE WAS NO SIMILAR MOTIVE OR PURPOSE, WITH RESPECT TO THE CROSS-EXAMINATION OF THE STATE, OF PARDO, IN PARDO'S OWN TRIAL, AND I BELIEVE THAT THE COURT COMPREHENDS THAT TO BE THE CASE, BUT I WOULD POINT OUT THAT THE DIFFERENCES ARE TREMENDOUS, IN THAT YOU HAVE AN INDIVIDUAL WHO TAKES THE STAND AND ADMITS TO NINE MURDERS IN ONE TRIAL AND CONFESSES TO HIS MISSION TO PUNISH DRUG DEALERS, AND IN THAT CONFESSION, HE EXPLAIN TO THE JURY HIS MOTIVATION, SUCH AS HIS BIZARRE STATEMENT OF HIS PRAISE OF HITLER AS A HERO. IN THAT CONTEXT, WHETHER OR NOT GARCIA HAD ANYTHING TO DO WITH THESE CRIMES IS COMPLETELY IRRELEVANT, AND I WOULD VIGOROUS  VIGOROUSLY REFUTE THE STATEMENT THAT THE DEFENDANT WENT AFTER THE STATEMENT TO VIGOROUSLY DISPUTE WHETHER GARCIA WAS INVOLVED, BECAUSE THE DEFENSE, AGAIN, POINTS TO PAGES OF PARDO'S TESTIMONY REGARDING GARSIA, SO IT WAS CERTAINLY NOT A HIGHLIGHT OF HIS TESTIMONY AND NOT EVEN RELEVANT TO THE ISSUES THAT THEY ARE TRYING TO PROVE.

YOU WOULD AGREE WITH THIS, BECAUSE I HAVE READ HIS WHOLE TESTIMONY, AND I WAS SURPRISED, SINCE HERE YOU HAVE A GUY THAT WAS CONFESSING, WHY THEY WOULDN'T SIT DOWN AND GO, OKAY, NOW WE HAVE GOT A SLAM DUNK. WHAT DO WE HAVE TO DOO? BUT THE CROSS-EXAMINATION TAKES A GREAT DEAL OF TIME TO EXPRESS DISBELIEF ABOUT THE VERSION THAT IS HE GIVING, -- BECAUSE PART OF IT IS HE IS EXPRESSING, HIMSELF, ANALITY RUIZTIC MOTIVE, SO THIS -- A RAULTISTIC MOTIVE. -- AN ALTRUISTIC MOTIVE. AND PART OF THE DEFENSE WAS SITTING DOWN ON THE STATEMENT OF THE DEFENSE, INCLUDING WHETHER OR NOT GARCIA WAS INVOLVED OR NOT. DOESN'T THIS PUT THIS IN, FIRST EVER ALL, IT IS FACTO SPECIFIC, WOULDN'T YOU AGREE, AS TO WHAT IS --

YES, YOUR HONOR.

BUT WE HAVE THE SAME ABILITY TO LOOK AT THE TRANSCRIPT AND DECIDE A SIMILAR MOTIVE ISSUE, A QUESTION OF FACTS AND LAW THAT WE CAN LOOK AT, THE SAME AS THE TRIAL JUDGE, CORRECT?

YES, YOUR HONOR.

OKAY. SO I MEAN IT IS REALLY LOOKING AT THIS TO SEE WHETHER THE STATE WAS VIGOROUSLY CROSS-EXAMINING PARDO ON HIS VERSION OF THE EVENTS?

RIGHT. AND I WOULD ASSERT THAT, IN THIS INSTANCE, I THINK IT WAS A VERY BIZARRE SCENARIO FOR THE STATE TO HAVE A DEFENDANT TAKE THE STAND AND MAKE THE CLAIMS THAT PARDO WAS MAKING, AND I THINK ONE OF THEIR CONCERNS AT THAT TIME WAS HIS SANITY AND HOW THAT MIGHT AFFECT THE JURY'S VERDICT, WITH REGARD TO THE TRUTHFULNESS OF WHAT HE WAS SAYING, AND I THINK THAT IS WHAT WOULD HAVE MOTIVATED THE PROSECUTOR TO CROSS-EXAMINE HIM IN THE MANNER THAT YOU DISCUSSED, WHICH IS VERY DIFFERENT MOTIVATION THAN TRYING TO SOMEHOW SAY THAT HE WAS TRYING TO PROVE THAT GARCIA WAS INVOLVED IN THE CASE.

SMPBZ AS FAR AS THE ARGUMENT FOR THE GUILT PHASE, WAS THERE A COMPLETELY DIFFERENT ARGUMENT AS TO WHY WAS THIS NOT APPROPRIATE FOR THE DEFENDANT TO BE ABLE TO PUT BEFORE THE JURY IN THE PENALTY PHASE, AT THE VERY LEAST?

IT IS A DIFFERENT ARGUMENT, YOUR HONOR, AND THE MAIN THRUST OF THAT ARGUMENT IS THAT GARCIA HAD CLAIMED HIS INNOCENCE TO HIS DEATH. HE TOOK THE STAND AND TOLD THE JURY THAT HE WAS INNOCENT. HE, AGAIN, REPEATED THIS TO THE SENTENCING JUDGE, LATER, AT SENTENCING, AND IN BOTH OF THOSE INSTANCES, HE REQUESTED OF THE JURY AND THE TRIAL COURT THAT HE BE GIVEN THE DEATH PENALTY, BECAUSE HE WANTED THIS COURT TO REVIEW HIS CASE, AND IN THAT INSTANCE, THE PURPOSE OF TRYING TO ADMIT PARDO'S TESTIMONY IS NOT TO PROVIDE ANYTHING OTHER THAN RESIDUAL OR LINGERING DOUBT AND THAT IS AN INAPPROPRIATE MITIGATOR, AND FOR THAT REASON IT WAS NOT ADMISSIBLE IN THE PENALTY PHASE.

BUT THE JURY IS ALLOWED TO CONSIDER RELATIVE CULPABILITY, AND THIS IS SORT OF A STRANGE SITUATION, BECAUSE GARCIA APPARENTLY WASN'T ARGUING FOR THE DEATH PENALTY FOR HIMSELF BECAUSE HE WANTED TO BE PUT TO DEATH, BUT BECAUSE HE WANTED THIS COURT, RATHER THAN. THE COURT, TO REVIEW WHETHER HE HAD A FAIR TRIAL OR NOT.

CORRECT.

OKAY. SO IN FACT, HIS DEFENSE LAWYER DID ARGUE, IN THE PENALTY PHASE, TO BE ABLE TO USE THIS TESTIMONY AND WOULD HAVE USED IT AT LEAST FOR THE PURPOSE OF RELATIVE CULPABILITY.

BUT IT DOESN'T PROVE RELATIVE CULPABILITY, BECAUSE WHAT HE SAYS IS THAT HE HAD NOTHING DO WITH IT, SO ALL IT GOES TO IS PROVING INNOCENCE. THERE IS NOTHING IN PARDO'S STATEMENT THAT WOULD SUGGEST THAT HE HAD ANYTHING TO DO WITH IT, AND SO FOR THAT REASON, YOU CAN'T LOGICALLY LOOK TO ANY PURPOSE FOR ADMITTING IT AS A MITIGATOR OR SOMETHING TO BE CONSIDERED AT SENTENCING, OTHER THAN RESIDUAL DOUBT, AND THAT IS INAPPROPRIATE, AND FOR THAT REASON IT WOULD NOT BE ADMISSIBLE. I THINK THEY CITE THE COURT TO THE GREEN DECISION, AND WE WOULD SAY THAT THAT IS DISTINGUISHABLE BECAUSE IN GREEN THE CODEFENDANT THERE MADE STATEMENTS THAT THE DEFENDANT WAS PARTIALLY INVOLVED. IT WAS A RAPE AND MURDER, AND HE SAYS THE DEFENDANT HAD SOMETHING TO TO DO WITH THE RAPE BUT THEN HE WAS GONE, BY THE TIME OF THE MURDER, AND THEN THEY ALSO LOOK FOR THE REALIBILITY OF THE STATEMENT IN THE GREEN MURDER, BECAUSE IT WAS MADE BY A CLOSE FRIEND. THERE WAS AMPLE EVIDENCE OF COOPERATION, AND THERE WAS NO ULTIMATEIER MOTIVE FOR MAKING THE STATEMENT. THAT IS CLEARLY DISTINGUISHABLE HERE FOR MANY REASONS. PARDO DID NOT MAKE THE STATEMENT RESPONSE AND ISLY. THIS WAS PART OF HIS GRAND SCREAM, TO ACHIEVE -- GRAND SCHEME TO ACHIEVE WHATEVER HE WAS TRYING TO ACHIEVE, TO SHOW THAT HE WAS SOLELY RESPONSIBLE FOR THESE MURDERS, AND THIS IS PARTICULARLY SIGNIFICANT, BY BECAUSE GIVEN HIS TAKING THE FIFTH, AND IS NOT A CANDIDATE FOR THE DEATH PENALTY AFTER STATING HIS INVOLVEMENT IN THE CRIMES, AND THE LOGIC IS MOTIVE, AND IT IS QUITE POSSIBLE THAT HE WAS TRYING TO CONVINCE THE JURY OF HIS VIGILANTE MOTIVE, AND THEY DID. YOU CAN ALSO LOOK AT HIS RELATIONSHIP WITH MR. GARCIA. HE WAS RELATEED TO MR. PARDO'S WIFE AND CONSIDERED PARDO TO BE AN UNDERSTANDING HE WILL TOM AND GARCIA TESTIFIED -- AN UNDERSTANDING HE WILL TO HIM AND GARCIA TESTIFIED THAT -- AS AN UNKEL TO HIM, AND HE HAD REASON TO PROTECT HIM. IN TERMS OF ACTING ALONE, THE EVIDENCE IS TO THE CONTRARY. TWO SEPARATE WEAPONS WERE USED TO KILL THE TWO VICTIMS IN THIS CASE. THEY WERE MURDERED EXECUTION STYLE, BOTH LYING FACEDOWN IN SEPARATE AREAS OF THE APARTMENT AND SHOT MULTIPLE TIMES IN AREAS OF THE HEAD AND THE NECK, AND TO THE CONTRARY WE ALSO HAVE STATEMENTS OF LOPEZ AND HEDDER AND INVOLVING GARSIA, WITH REGARD TO THE GUN PURCHASE AND THE VICTIM'S ID, SO IN COMPARISON TO THE GREEN STATEMENT, THERE IS REASON WHY THAT ADMISSION WOULD NOT BE ALLOWED IN THE PENALTY PHASE. THOSE ARGUMENTS ARE SIMILAR TO THE CLAIMS FOR WHY PARDO'S TESTIMONY WAS NOT GUILT, BASED UPON APPEAL AND THE STATEMENT AGAINST INTEREST. THOSE ARE SET FORTH IN THE BRIEF MUCH THE SAME WAY. IN COMPARISON TO THE LACY DECISION, REGARDING THE SPONTANEITY AND CORROBORATION OF THE STATEMENT, UNDER THAT ANALYSIS AS WELL, IN LACY YOU HAVE A SITUATION WHERE TWO BROTHERS ARE INVOLVED IN A MURDER. ONE IS CHARGED, THE BROTHER WHO, THE INNOCENT BROTHER IS CHARGED, AND THE GUILTY BROTHER GOES AND IMMEDIATELY TELLS HIS MOTHER, AND THE NEXT DAY TELLS THE POLICE THAT IT WAS HIM THAT DID IT, AND THEN HE HAS -- HIS OWN GUN WAS USED, AND AN EYEWITNESS ACTUALLY TESTIFIES TO HIS GUILT, SO THAT IS VERY DISTINGUISHABLE IN TERMS OF THE SITUATION YOU HAVE HERE, REGARDING PARDO'S TESTIMONY IN HIS OWN TRIAL, AND, AGAIN, THAT WOULD GO TO THE STATEMENT AGAINST INTEREST, WHICH INITIALLY IS NOT PRESERVED BUT GOES TO THE TESTIMONY NOT BEING ADMITED IN THIS TRIAL. THEY RAISE THE DUE PROCESS ARGUMENT, WHICH, AGAIN, TO TRY TO CIRCUMVENT THE FACT THAT THIS WAS NOT PRESERVED, AND EVEN UNDER THE DUE PROCESS REQUIREMENT, YOU HAVE TO LOOK TO THE INDICIA OF TRUSTWORTHINESS OF THE STATEMENTS THAT WERE MADE AND THE SAME FACTORS APPLY ONCE MORE, AND UNDER THOSE, UNDER THAT REASONING, PARDO'S TESTIMONY WAS PROPERLY NOT ADMITTED.

GO AHEAD.

I HAVE BEEN MEANING TO ASK YOU ABOUT THE DEARY OVERRIDE ISSUE IN THIS CASE.

YES.

THE DEFENSE IS ARGUING HERE THAT, BECAUSE THE JURY RECOMMENDED LIFE IN THE FIRST TRIAL, THAT, AND THIS COURT DID NOT ADDRESS THE TRIAL COURT'S OVERRIDE OF THAT, THAT WE NEED TO DO THAT IN THIS PARTICULAR PROCEEDING. WHAT IS YOUR RESPONSE TO THAT?

WELL, BASICALLY, YOUR HONOR, THE 1988, THE OPINION FROM THIS COURT RESULTING FROM THE '98 CONVICTION, '88 CONVICTION. I AM SORRY. REVERSED SOLELY BECAUSE THEY FELT THAT IT WAS AN IMPROPER JOINTER -- JOINDER, AND THEY WANTED NEW TRIALS AND WANTED THE MURDERS TO BE TRIED SEPARATELY, WHICH IS WHAT OCCURRED. THEY DID NOT DISCUSS THE OTHER ISSUES RAISE ODD APPEAL, INCLUDING THE ISSUE OF THE JURY OVERRIDE, AND FOR THAT REASON WE ARGUE THAT THE CLEAN SLATE RULE SHOULD APPLY, BECAUSE THERE WAS NOTHING THAT WENT TO THE SUFFICIENCY OF EVIDENCE ON THAT PARTICULAR MURDER, AND SO THERE WAS NO RESULTING ACQUITTAL. ON THE COUNT REGARDING THAT ONE INDIVIDUAL, AS TO WHETHER OR NOT THE MURDER OCCURRED, ALTHOUGH THEY URGE YOU TO RULE OTHERWISE, THIS COURT ROUTINELY WILL REVERSE ON ONE OF MANY ISSUES, AND CHOOSE NOT TO DISCUSS THE ISSUES THAT WERE AVAILABLE. TO ASSUME THAT SOMEHOW THE '88 OVERRIDE IS STILL AVAILABLE FOR THIS COURT IGNORES THE ISSUES OF FINALITY THAT WE NEED TO HAVE, WITH RESPECT TO CASES ESPECIALLY IN CAPITAL CASES THAT VERY OFTEN RETRIALS AND MULTIPLE CASES, AND ESPECIALLY IGNORES THE FACT THAT SOMEHOW, BECAUSE THIS COURT DID NOT ADDRESS IT, THEY FOUND IT TO BE WITH MERIT, AND WE WOULD ARGUE THAT, ALTERNATIVELY, AS THE CLEAN SLATE RULE DOES NOT APPLY THAT, THE TETTER ANALYSIS DONE BY THE COURT DOES ON THE APPLY IN THIS CASE.

WAS THIS COURT ONE TIME ADDRESSED THAT THE OTHER -- DIDN'T RECENTLY, IN KEEN, WE REVERSED THE GUILT BUT FOUND THAT THE JURY OVERRIDE WAS IMPROPER. IT SEEMS THAT WE HAVE TO HAVE, THAT WOULD BE TREATING THESE CASES IN AN EQUAL WAY, IF IT IS NOT APPROPRIATE TO ADDRESS THE JURY OVERRIDE, WHEN WE ARE, ALSO REVERSING A CONVICTION, THEN THAT IS ONE THING, BUT IF WE SIMPLY OVERLOOK NOT ADDRESSING IT, THEN THIS, WHY SHOULDN'T THIS -- IF THE OVERRIDE WAS IMPROPER, OBVIOUSLY IF IT IS PROPER, WE DON'T HAVE TO WORRY ABOUT IT, BUT I AM CONCERNED ABOUT THE FAIRNESS OF THAT, FOR THIS DEFENDANT, BECAUSE REALLY IT IS NOT THE QUESTION OF WHETHER HE IS ACQUITTED OF THE UNDERLYING CHARGE. IT IS A QUESTION THAT, IF THE JURY OVERRIDE IS IMPROPER, UNDER TETTER, IN FACT THIS DEFENDANT WAS ACQUITTED OF THE DEATH PENALTY FOR WHATEVER THE AMADORE MURDER.

YES. WE RESPECTFULLY ASSERT THAT THIS COURT DID NOT OVERLOOK THAT. THIS COURT WAS FULLY AWARE OF THE ISSUES THAT WERE PRESENTED AT THE TIME OF THE 1988 APPEAL, AND IF THIS COURT CHOSE NOT TO ADDRESS IT AT THAT TIME, THE EQUAL ASSUMPTION WOULD BE THAT THE COURT FOUND NO MERIT TO THE CLAIM. IF YOU LEAVE IT OPEN TO THE IDEA THAT THEY CAN COME BACK AND LOOK AT THIS, THEN YOU CAN APPLY THAT TO ANYTHING. YOU CAN APPLY IT TO REGULAR CRIMINAL CASES AND REVISIT ISSUES THAT THIS COURT CHOSE NOT TO ADDRESS, AND BECAUSE THEY ARE A RISE AGAIN, THAT IS WHY YOU HAVE THE APPLICATION OF THE CLEAN SLATE RULE, IN SITUATIONS WHERE YOU HAVE AN ACQUITTAL OR A CHALLENGE TO SUFFICIENCY OF THE EVIDENCE.

WAS THIS ISSUE RAISED, BY WAY OF MOTION FOR REHEARING, IN THE FIRST TRIAL? I MEAN THE FIRST APPEAL, OR WHEN IT CAME BACK, DID THE DEFENDANT MAKE THE ARGUMENT THAT THE JURY SHOULD NOT CONSIDER THE DEATH PENALTY FOR ONE OF THE TWO VICTIMS?

I DON'T KNOW THE ANSWER ABOUT THE MOTION FOR REHEARING, AND I DON'T RECALL THAT IT WAS MADE AGAIN, WITH REGARD TO THIS TRIAL BUT I COULD BE MISTAKEN ON THAT POINT. I KNOW THAT THERE WERE VERY DIFFERENT CONSIDERATIONS, BECAUSE THAT FIRST TRIAL INVOLVED FOUR -- SIX MURDERS, TWO OF WHICH RESULTED IN ACQUITTAL IN 1988, AND NOW WE COME BACK TO THIS TRIAL, AND IT IS JUST TWO THAT ARE REMAINING. THE ONLY OTHER ISSUE THAT I BRIEFLY ADDRESSED IS THE ADMISSIBILITY OF THE DIARY ENTRIES. THERE WAS A CHALLENGE, THERE WERE DIARY ENTRIES, A PART OF THE DIARY ADMITTED AT THE CONCLUSION OF THE ROBERRA TESTIMONY, AND IN THE REPLY BRIEF, THE DEFENSE POINTS TO HERE SAY ADMISSIONS WHERE BUSINESS LEDGER ENTRIES WOULD BE ADMISSIBLE, IF YOU HAD A PROPER FOUNDATION MUCH THE STATE WOULD ASK OF THE COURT TO ANALOGIZE THAT SITUATION, THE SAME SITUATION HERE. THERE ARE NUMEROUS CASES THAT DEAL WITH LEDGER-TYPE ENTRIES IN A CRIMINAL CONTEXT AND FIND THOSE TO BE ADMISSIBLE HEARSAY, AS LONG AS THERE IS NO QUESTION OF IDENTITY OF WHO DID THAT.

WAS THE PREDICATE LAID FOR THAT?

YOUR HONOR, WE ARE ASSERTING THAT THE TESTIMONY WAS LAID THROUGH ROBERRA AND THERE HAS BEEN NO TRUE CHALLENGE, TO THE POINT THAT --

WHAT ABOUT THE DIARY. THE DEFENDANT OPPOSED THE ADMISSION OF THE DIARY INTO EVIDENCE, WITH RESPECT TO THE FACT THAT IT IS PART AFTER DIARY.

YES.

HOW IS THAT NOT HEARSAY AGAINST GARCIA, UNLESS IT FALSE WITHIN A SPECIFIC --

IT IS NOT HEARSAY, BECAUSE IT FALLS INTO THE EX-EFTION -- INTO THE EXCEPTION OF THE LEDGER ENTRIES.

YOU ARE LOOKING AT THE PREDICATE OR THERE BEING A REGULARLY KEPT BUSINESS RECORD OF THE DRUG BUSINESS OF GARCIA AND PARDO WAS ESTABLISHED BY THIS RECORD.

YES, YOUR HONOR, THROUGH THE TESTIMONY OF ROBERRA, AND HE EXPLAINS TO THE JURY HOW GARCIA EXPLAINED TO HIM, THE CONVERSATION WITH GARCIA, AND PART OF IT WAS EXPLAINED TO HIM THE MEANING OF THE ENTRIES.

IF WE DON'T FIND THAT EX-EVENINGS, WHAT OTHER WOULD --. THE OTHER ARGUMENT WOULD BE, OTHER THAN A HEARSAY EXCEPTION, WE ARGUE THAT IT WAS CUMULATIVE, BECAUSE WE HAD THE DEFENDANT TAKE THE STAND AND EXPLAIN TO THE JURY ALL OF THE GUN-BUYING, AND WITH OR WITHOUT THE DIARY ENTRIES, AND THE DIARY ENTRIES, IN THAT RESPECT COULD HAVE BEEN USED TO REFRESH HIS RECOLLECTION AT THAT POINT, EVEN IF HE HAD HADN'T TESTIFIED SPECIFICALLY TO THAT, AND SO WE WOULD TEN THEN ARGUE THAT IT WAS HARMLESS -- AND SO WE WOULD, THEN, ARGUE THAT IT WAS HARMLESS, TO THAT EXTENT. IF THERE ARE NO OTHER QUESTIONS, WE WOULD ASK THAT YOU CONFIRM THE FIFTH DISTRICT'S DECISION.

.

THE EXCERPTS OF THE TRANSCRIPTS WERE PREPARED ERRONEOUS. IN FACT AT PAGE 22-25, HE SAID I HAD A CHANCE TO REVIEW THE TRANSCRIPTS IN THEIR ENTIRETY. HE SAID HE SCANNED THEM WITH THE USE OF FAST FORWARD, BUT HE WAS REVIEWING THE COMPLETE VIDEOTAPES AND TRANSCRIPTS. LATER ON, AT PAGE 2237, THE DEFENSE ASKS HIM OR HE SAID THAT HE DOESN'T NEED TO REVIEW THE SPECIFIC EXCERPTS THE DEFENSE HAD PREPARED IN ANTICIPATION OF ROBERRA'S EXAMINATION, BECAUSE HE HAS RULED THE WHOLE THING OFF-LIMITS, SO THE JUDGE'S RULING WAS BASED ON THESE TAPES, IN THEIR ENTIRETY, NOT ON SPECIFIC EXCERPTS.

HAD. THE TRIAL JUDGE ALREADY RULED THAT THESE WERE INADMISSIBLE IN. THE CASE, BY THE TIME THEY WERE GOTTEN TO HERE? WAS THAT BROUGHT TO THE TRIAL COURT'S ATTENTION?

YES, YOUR HONOR, AND THE DEFENSE WAS LITERALLY SETTING UP THE VIDEO EQUIPMENT, IN PREPARATION FOR THE DEFENSE TOES MONEY -- TESTIMONY, JUST AS THEY HAD WITH JUDGE DEAN, AND THE STATE ARGUED WELL, JUDGE, YOU SHOULD KNOW THAT THESE ARE PART AFTER POLYGRAPH, AND IF THIS COMES IN, WE SHOULD GET A CHANCE TO TELL THE JURY THAT HE PASS ADD POLYGRAPH, AND THE JUDGE SAID IN TERMS OF A POLYGRAPH, THERE HAS TO BE A MOTION, AND THAT IS HOW THE WHOLE THING CAME UP. THERE WAS NO PRETRIAL MOTION BY THE STATE TO SAY THAT YOU SHOULD CONSIDER JUDGE DEAN'S RULING AND USE THESE TAPES TO IMPEACH THE DEFENDANT. THE DEFENSE WAS CAUGHT OFF GUARD.

WERE YOU AWARE OF THE TRIAL COURT'S RULING THAT IT WAS PART OF A POLYGRAPH?

THAT IS HOW IT STARTED. WHEN THE JUDGE CAME BACK AND REVIEWED IT, HE TALKED ABOUT HOW IT WAS NOT UNDER OATH. NOW, JUDGE DEAN, ALSO, FOR RELEVANCY, SPECIFICALLY FOR PURPOSES OF IMPEACHMENT, JUDGE DEAN SPECIFICALLY FOUND THAT THEY WERE UNDER OATH, BECAUSE SHE, BASED ON DEAN'S TESTIMONY, CONCLUDED THAT SHE CONSIDERED THESE TO BE ONE INTERVIEW AND HE HAD BEEN PLACED UNDER OATH.

LET ME ASK YOU, DO WE HAVE THE RECORD IN THE ACQUITTALS? I KNOW YOU HAVE SUPPLEMENTED THE RECORD WITH A LOT, BUT THIS PORTION OF HOW IT GOT IN IN THE MILLOTTE CASE, WAS THAT BEFORE US?

THAT WAS PROFFERED BY DEFENSE COUNSEL BELOW, TO SHOW, AS AN EXAMPLE, HOW THEY WOULD HAVE USED THESE TAPES FOR IMPEACHMENT  IMPEACHMENT.

HOW THEY WOULD USE THOSE RECORDS.

EXACTLY. THE CROSS-EXAMINATION, AND I BELIEVE THOSE EXCERPTS ALSO INCLUDED SOME OF THE DISCUSSIONS ABOUT ADMISSABILITY THAT OCCURRED.

THEN, AFTER THE MATTER GOT ROLLING, HERE, ON WHETHER IT WAS PART OF THE POLYGRAPH OR NOT, DID IT END UP BEING A DISCUSSION ABOUT WHETHER THIS WAS CUMULATIVE CROSS?

ABSOLUTELY NOT, YOUR HONOR. THAT WAS NEVER DISCUSSED. TO MY RECOLLECTION. I MEAN, THE THREE --

WHAT ABOUT THE ARGUMENT THAT THE STATE MAKES HERE, IN ITS BRIEF, ABOUT THE FACT THAT THERE WAS THIS DEPOSITION TESTIMONY? THERE WERE OTHER PARTS OF THE PRIOR RECORD, WHICH WERE USED TO CROSS EXAM SNIN.

I AM GLAD YOU ASKED THAT -- CROSS-EXAMINE?

I AM GLAD YOU ASKED THAT, BECAUSE THE RECORDS OF THE IMPEACHMENT POINTS TO AND UNDERSCORES HOW INCREDIBLY ANEMIC THE REST OF IT WAS, COMPARED TO WHAT THE DEFENSE WAS ALLOWED TO USE, AND THE REASON FOR THAT, THE SIMPLE DEFENSE IS VIRTUALLY THIS IS HIS LAST UNTUTORED STATEMENT. AFTER THIS POINT, THE POLICE EXECUTE THE SEARCH WARRANT ON PARDO'S HOUSE. THEY FIND VARIOUS EVIDENCE. ROBERRA SPENT COUNTLESS HOURS UNDER THE TUTELAGE OF POLICE, AT THE END OF WHICH PROCESS HE EMERGES WITH A MUCH-MORE DETAILED ACCOUNTS OF THESE CRIMES THAN HE EVER HAD BEFORE.

LET ME ASK YOU THIS, AND I HAVE NOT READ THE TRANSCRIPT, BUT IS WHAT WE ARE DEALING WITH HERE, AS REPRESENTED BY THE STATE, A RATHER LENGTHY PREPOLYGRAPH INTERVIEW? I MEAN, DOES IT GO ON FOR A NUMBER OF HOURS?

IT DOES, YOUR HONOR. IT GOES ON FOR A NUMBER. HE SENT HOME, AT ONE POINT, TO SLEEP, AND THEN COMES BACK TO RETAKE THE POLYGRAPH.

WHAT YOUR BASIC ASSERTION IS, IS THAT THIS CONFERENCE, THE PRESTATEMENT, SHOULD BE ALLOWED TO ESTABLISH A NEGATIVE, AND THAT IS THAT, IN THAT WHOLE THING, HE DIDN'T MENTION THIS PARTICULAR MURDER. IS THAT RIGHT?

RIGHT, YOUR HONOR. IN TERMS OF IMPEACHMENT, THE STATE SAYS IT WOULDN'T HAVE BEEN NATURAL FOR HIM TO SAY SO, BUT CERTAINLY --

SO IT DOES FOLLOW, AND THE QUESTION THAT YOU ARE ASKED ON, DURING YOUR OPENING WAS THAT, IF THAT IS GOING TO COME IN,, IF IT IS GOING TO ESTABLISH A NEGATIVE THEN IT CERTAINLY HAS TO COME IN AND THAT IS ALL OF THAT DAMAGING STATEMENT.

NOT NECESSARILY, YOUR HONOR, BECAUSE THE CRUCIAL QUESTION, AND IF IT WERE NATURAL FOR HIM, CERTAINLY AT THE POINT WHEN IT WOULD HAVE BEEN MOST NATURAL FOR HIM TO SAY SOMETHING IS WHEN HE WAS TELLING THE POLICE THESE ARE THE ONLY MURDERS I KNOW ABOUT. HE MENTIONS A GUY NAMED MARIO. THEY ASKED HIM SPECIFICALLY WHO IS MARIO? IF HE KNEW ANYTHING ABOUT MARIO AMADORE, THEY WOULD HAVE PRESUMABLY BEEN THE TIME FOR HIM TO TELL THE POLICE ABOUT IT, BUT HE DOESN'T KNOW ABOUT IT, AND ONE ENTIRE EXCHANGE ENUMERATES THAT POINT. AND THERE WOULD HAVE BEEN IMPROPER IMPEACHMENT, INCLUDING THE RELATIONSHIP AMONGST PARTIES. AGAIN, A LOT OF THIS IS ANTICIPATORY, BECAUSE WE DON'T HAVE A RULING HERE THAT IS BASED ON WHETHER SPECIFIC THINGS WOULD HAVE BEEN PROPER IMPEACHMENT. WE HAVE WHAT IS A CLEAR ABUSE OF DISCRETION WHICH IS PUTING THIS ENTIRE TAPE, ALL OF THIS INTERVIEW, OFF-LIMITS FOR PURPOSES OF IMPEACHMENT.

IS THERE ANY DIFFERENCE IN THE MILLET CASE? WAS MILLET THE SUBJECT OF THIS VIDEO TAPED STATEMENTA?

AGAIN, THAT IS WHAT IS SOMEWHAT MISLEADING ABOUT WHAT IS THE STATE SAYS. WELL, CERTAINLY THESE POLICE OFFICERS WERE CONCERNED WITH THE CANTERRA CASE. THAT IS WHAT HE WAS BEING POLYGRAPHED ON. THEY ASKED ROBERRA. THERE IS A SPECIFIC QUESTION ABOUT MARIO, WHEN HE BRINGS UP THE MILLOTTE CASE OR THE OTHER CASE, THEY PAWS IN THE TRANSCRIPT AND ASK IS THERE -- THEY PAUSE IN THE TRANSCRIPT AND ASK IS THERE ANYTHING ELSE BEFORE WE GO ON TO THE OTHER CASES? IS THERE ANYTHING WE SHOULD KNOW ABOUT THE ACTIVITIES? THIS INTERVIEW COVERED EVERYTHING ROBERRA CLAIMED TO KNOW B IT WASN'T JUST LIMITED TO THE TWO HIALEAH CASES.

AND THAT IS CLEAR IN THE RECORD, AS FAR AS THIS VIDEO TAPE IS CONCERNED? BECAUSE ONE OF THE THINGS YOU ARE TOUCHING ON IT NOW, THAT I HEAR THE STATE SAYING, IS THAT, WELL, THERE WERE NINE MURDERS. LET'S CALL THE FIRST ONE SMITH. OKAY. AND THEN THE MURDER HERE JONES. BUT THIS INTERVIEW WAS LIMITED TO THE SMITH CASE. AND THAT, IF WE VIEW AND LISTEN TO THE VIDEOTAPE HERE, THAT WE WILL SEE THAT ALL OF THE OFFICERS WERE ASKING THE WITNESS ABOUT WERE THE SMITH CASE. THAT WAS THE ENTIRE FOCUS, AND THE WITNESS IS NEVER ASKED TO TALK ABOUT THE JONES CASE.

WELL, THE WAY THIS INTERVIEW --

WOULD THAT BE RIGHT?

THE WAY THIS INTERVIEW GOES, IS ROBERRA IS RAMBLING A LOT, AND HE VOLUNTEERS LOTS OF INFORMATION, BUT THE POLICE WEREN'T SAYING, NO, NO, NO, WE ARE NOT INTERESTED IN THAT. THEY ASK FOLLOW-UP QUESTIONS. WHEN DID THIS HAPPEN AND WHERE DOES THIS MURDER OCCUR, SO CLEARLY THEY WILL ARE INTERESTED IN PURSUING THE INFORMATION, BUT CERTAINLY BY THE TIME WE GET TO THE VIDEOTAPE, IT IS JUST A ONE-ON-ONE INTERVIEW. BUT THEY DO COVER A NUMBER, AND THEN THEY COVER EVERYTHING, AND ROBERRA IS PURPORTING TO TELL THEM EVERYTHING HE KNOWS.

THANK YOU, MISS SPAULDING. THANK YOU, COUNSEL, FOR YOUR ASSISTANCE.