Daniel Burns v. State of Florida SC01-166

Transcription

1 The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. Daniel Burns v. State of Florida SC GOOD MORNING. THE NEXT CASE ON THE COURT'S ORAL ARGUMENT CALENDAR IS BURNS VERSUS STATE. JUSTICE QUINCE IS RECUSED IN THIS CASE. THANK YOU. I AM ERIC PINKARD WITH CCRC, ADDRESSING THE ISSUES ON THIS APPEAL. THE FIRST ISSUE I WOULD LIKE TO ADDRESS IS THE ISSUE NUMBER ONE IN THIS CASE, AND THAT IS THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. IN FAILING TO PRESENT MENTAL MITIGATION AT THE SENTENCING PROCEDURE. WE FEEL THAT THE SUBSTANTIAL MENTAL MITIGATION LEFT OUT OF THAT PROCEDURE, ENTIRELY CHANGES THE EVIDENTIARY PICTURE CONCERNING SENTENCES. COULD YOU ADDRESS SPECIFICALLY, THIS ISSUE WITH DR.^BERLAND. THE JUDGE IN THE CASE FOUND THAT THERE WAS A STRATEGY REASON FOR NOT CALLING DR.^BERLAND AT PRESENTENCING, AND I WOULD LIKE YOU TO ADDRESS WHETHER THAT, IN TERMS OF THAT BEING A FACTUAL FINDING, WHETHER THERE IS COMPETENT, SUBSTANTIAL EVIDENCE TO SUPPORT THAT, BECAUSE DOCTOR, YOU KNOW, THAT IS THAT IT WAS PART OF THIS EFFORT TO HUMANIZE THE DEFENDANT AND SHOW HIM AS A HARDWORKING PERSON, AND THAT CALLING DR.^BERLAND WOULD HAVE RUN COUNTER TO THAT, BY SHOWING THAT HE WAS PSYCHOTIC AND POTENTIALLY BRAIN DAMAGED. HOW DO YOU GET AROUND THAT FINDING THAT DR.^BERLAND, NOT CALLING HIM WAS A STRATEGY DECISION? OKAY. I THINK THE DETERMINATION OF WHETHER THAT IS A STRATEGIC DECISION OR NOT IS A MIXED QUESTION OF LAW, REQUIRING DE NOVO REVIEW. THAT IS MY FIRST ANSWER. MY SECOND ANSWER IS THERE IS NO RECORD ANYWHERE IN THE PROCEEDINGS, IN THE EVIDENTIARY HEARING THAT WE HAD, WHICH WOULD JUSTIFY WHAT THE LOWER COURT SAID CONCERNING THE REASONS WHY DR.^BERLAND WAS NOT CALLED. THE DEFENSE LAWYER DIDN'T, SAID THAT HE DIDN'T RECALL WHY, BUT THEN THE TRIAL JUDGE SHOWS, AT GREAT LENGTH, SHOWS IN THE TRANSCRIPT THAT IT LOOKS LIKE THEY HAD DR.^BERLAND ON TAP, BUT THAT, THAT IT WOULD LOOK LIKE THERE WAS SOME REASON THAT WAS DEVELOPED THAT THEY DECIDED THEY BETTER NOT CALL DR.^BERLAND. ACTUALLY THE STATE OF THE RECORD IS THAT BOTH COUNSEL RECOLLECTED THAT THEY DID NOT CALL DR.^BERLAND, BECAUSE OF THIS OUTSIDE FAMILY PROBLEM THAT HE HAD, AND THAT HE HAD HAD A FAMILY EMERGENCY AND WAS GOING TO BE ATTENDING A FUNERAL, AND ONE OF THE COUNSEL, MR. DEBRUGE, TESTIFIED THAT THE REASON IT WAS NOT DONE WAS THAT HE WAS OVERWHELMED WITH THE PROCEEDINGS, BUT BOTH DEFENSE LAWYERS WERE ASKED AT THE EVIDENTIARY HEARING OF THIS CASE, WAS THE DECISION NOT TO CALL DR.^BERLAND ON MR. BURNS'S BEHALF STRATEGIC, AND THEY BOTH CATAGORICALLY SAID ON THE RECORD, THAT IT WAS NOT A STRATEGIC DECISION, SO WHAT THE JUDGE DID IN THIS CASE WAS IMPOSE HIS OWN REASON THAT HE THOUGHT THAT DR.^BERLAND WAS NOT CALLED, AND ONE OF THE REASONS THAT HE GAVE WAS THAT THAT WOULD BE INCONSISTENT, SOMEHOW, WITH EFFORTS TO HUMANIZE MR. BURNS BY THE WITNESSES THAT WERE PRESENTED AT THE SENTENCING. NOW, IN BREEDLOVE, THIS COURT CONFRONTED THE ISSUE OF WHETHER THE COURT IS BOUND TO ACCEPT THE STATEMENTS OF DEFENSE COUNSEL, WHO IS OBVIOUSLY CONFLICTED IN THESE

2 SITUATIONS SUCH AS THIS. [TECHNICAL DIFFICULTIES] IN BERLAND'S TESTIMONY AT THE 1988 TRIAL, IT WOULD HAVE BEEN ADMISSIBLE IN THIS TRIAL, AS FORMER TESTIMONY, WOULD IT NOT? I AM ASSUMING THAT THEY COULD HAVE TRIED TO INTRODUCE IT AS FORMER TESTIMONY. I HADN'T EVER THOUGHT ABOUT THAT. THERE WAS NO ATTEMPT TO DO THAT, CORRECT? THERE WAS NO ATTEMPT TO DO THAT. NOW, THERE HAD BEEN ADDITIONAL TESTING THAT DR.^BERLAND HAD DONE, BETWEEN 1988 AND THE 1994 RESENTENCING, AND HE ALSO TALKED TO SOME MORE WITNESSES. NOW, THE DEFENSE COUNSEL CALLED A GREAT NUMBER OF WITNESSES, CORRECT? YES. THEY CALLED A NUMBER OF WITNESSES, WHO MOSTLY TESTIFIED ABOUT HIS GROWING UP IN MISSISSIPPI, AND A NUMBER OF THESE WITNESSES HADN'T SEEN MR. BURNS FOR YEARS. WHAT WOULD YOU SAY IS THE THEORY OF THE DEFENSE, IN THE RESENTENCING PENALTY PHASE, AS TO THE MITIGATION? WELL, THE MITIGATION THAT THEY PRESENTED BASICALLY OUTLINED MR. BURNS'S LIFE WHEN HE GREW UP. HE WAS POOR. HE WAS FROM A LARGE FAMILY. HE WAS A HARD WORKER SO TO SPEAK. HE TRIED IN SCHOOL. HE WAS NICE TO HIS FAMILY. HE TRIED TO HELP THEM IN FINANCIAL CIRCUMSTANCES, AND THIS TYPE OF THINGS, AND THEY, ALSO, CALLED DR.^RATLETT, AN EXPERT WITNESS, WHO SAYS THAT HE WOULD HAVE DONE WELL IN THE PRISON ENVIRONMENT. I THINK THAT IS THE BASIC SUM AND SUBSTANCE OF WHAT THEY TESTIFIED TO. ONE OF DR.^RATLETT'S VIEWS AS TO THE REASON THAT HE WOULD HAVE DONE WELL IN THE OR WOULD DO WELL IN A PRISON ENVIRONMENT WAS BECAUSE OF, THAT THERE WAS NO INDICATION OF MENTAL INSTABILITY. WASN'T THAT PART OF DR.^RATLETT'S TESTIMONY? I DON'T THINK THAT HE WOULD HAVE MADE THAT TYPE AFTER MENTAL HEALTH EVALUATION AS TO WHETHER HE HAD STABILITY OR NOT, BUT HE DID SAY THAT HE THOUGHT HE WOULD DO WELL IN PRISON. I DON'T KNOW THAT HE IS A PSYCHOLOGIST, WHERE HE GAVE HIM ANY TEST, NO WACE TEST, NO MMPI, NO THAT KIND OF THING. HE MAY HAVE MADE A GENERAL ASSESSMENT OF MR. BURNS WHEN HE TALKED TO HIM, BUT WE ARE TALKING ABOUT, JUDGE, TWO WACE SCORES THAT PLACE THIS MAN TWO STANDARD DEVIATIONS BELOW THE MEAN, IN CATEGORIES OF RETARDATION. THAT IS VERY SIGNIFICANT MENTAL MITIGATION EVIDENCE THAT COULD HAVE PRESENTED IN THIS IS THAT HE HAS CHRONIC AMBULATORY PSYCHOSIS, WHAT DR.^BERLAND SAYS, AND WE HAVE GOT DR.^DEESE'S TESTIMONY, WHICH IS?? FOLLOWING UP ON WHAT JUSTICE WELLS IS ASKING, AS FAR AS WHETHER THERE IS EVIDENCE THAT SUPPORT THAT THIS IS A STRATEGY DECISION, IF PROFESSOR RATLETT SAYS THAT THIS IS A PERSON WHO DOES WELL IN PRISON ENVIRONMENT, PEOPLE THAT DON'T HAVE MENTAL ILLNESS AND ARE NOT PSYCHOTIC, ISN'T IT CONTRARY, THEN, TO PUT ON A WITNESS LIKE DR.^BERLAND, THAT WOULD SAY THAT THIS IS A PERSON THAT HAS PSYCHOTIC TYPE OF DELUSIONAL THINKING? I MEAN, ISN'T THAT CONTRARY, THEN, TO WHAT PROFESSOR RATLETT. IS SAYING? IT IS SAYING AND RATHER SUPPORTS A STRATEGY DECISION, RATHER THAN SAY THIS IS A KIND OF DEFICIENT PERFORMANCE, WHEN YOU HAVE GOT TWO PEOPLE, TWO LAWYERS THAT WENT TO MICHIGAN AND MISSISSIPPI. THEY CALLED OVER 30 WITNESSES. THEY DID INVESTIGATION. YOU KNOW, THIS IS NOT THE KIND OF CASE THAT WE WOULD, YOU KNOW, LOOK UNDER THE MICROSCOPE AND TRY TO SECOND?GUESS WHETHER THERE WAS A BETTER STRATEGY. ALL I CAN TELL YOU, JUSTICE PARIENTE, IS THESE LAWYERS WERE ASKED AT THE EVIDENTIARY

3 HEARING ABOUT THAT VERY ISSUE, AND BOTH, AND THEY WERE ASKED WAS THERE ANYTHING ABOUT THE PRESENTATION OF MENTAL HEALTH MITIGATION THAT WOULD HAVE BEEN INCONSISTENT WITH ANY OF THE MITIGATION THAT YOU PRESENTED, AND THEY BOTH SAID NO. BUT LOOKING AT IT, IT DOES SEEM LIKE IT WOULD BE IN CONSISTENT, AND THAT JUSTICE WELLS IS SAYING, YOU KNOW, SORT OF NOW, IT IS IN EVERYONE'S INTEREST TO SAY WE COULD HAVE DONE BETTER, BUT WE HAVE GOT TO LOOK AT, REALLY, WHAT THEY WERE LOOKING AT, AT THE TIME, AND THESE ARE, YOU KNOW, IF THEY NEEDED TO PRESENT DR.^BERLAND, THEY COULD HAVE DONE IT THROUGH DEPOSITION. THERE IS NO?? THERE IS NO INDICATION THAT THERE WOULD BE, THAT THEY JUST DIDN'T FORGET, THEY DIDN'T FORGET ABOUT DR.^BERLAND. THEY WERE TALKING ABOUT HIM AT THE TIME OF THE, AT THE SENTENCING HEARING, SO IT IS SORT OF AN UNUSUAL SITUATION THAT LENDS ITSELF TO ME, TO SAY THAT EITHER THEY WERE GROSSLY, GROSSLY NEGLIGENT TO SAY WE SHOULD HAVE, GEE, WE FORGOT TO PRESENT DR.^BERLAND, OR THEY MADE A STRATEGY DECISION THAT THIS CASE WAS GOING WELL ENOUGH THE WAY THEY WERE PRESENTING IT. THEY DIDN'T WANT TO RUN THE RISK OF HAVING DR.^MARIN TESTIFY IN REBUTTAL TO THE, ABOUT THE IQ SCORES AND ABOUT THE FINDINGS THAT DR.^BERLAND MADE. LET ME SAID OFF DR.^MARIN JUST A SECOND, BECAUSE I WOULD LIKE TO TELL YOU ABOUT SOME THINGS HE TESTIFIED TO, BUT ALL I CAN TELL YOU, JUSTICE PARIENTE, IS WHEN WE TALK ABOUT LAWYERS COMING IN AND SAYING THAT THEY HAD A STRATEGIC REASON, THAT IS CLOAKED WITH SOME KIND OF DEFERENCE, BECAUSE THEY ARE THE BEST KIND OF PEOPLE TO TELL US WHETHER THEY HAD A STRATEGIC DECISION OR NOT, SO IT SEEMS LIKE WHEN THEY COME IN AND SAY WE DIDN'T HAVE A STRATEGIC DECISION, THAT WE OUGHT TO TAKE THAT INTO CONSIDERATION. THEY ARE THE PEOPLE THAT KNEW AND THEY BOTH REPEATEDLY ASKED. THEY WERE ASKED AND SAID, NO, THIS WAS NOT A STRATEGIC DECISION THAT IT WOULD BE HELPFUL, AND COMING FORTH WITH INFORMATION THAT THE MAN HAS GOT SCORES IN THE RETARDATION RANGE AND HAS GOT CHRONIC AMBULATORY PSYCHOSIS THAT, IS NOT GOING TO ENTIRE FEAR WITH THE EFFORTS TO HUMANIZE SOMEBODY. SOMEBODY IS NO LESS HUMAN BECAUSE THEY HAPPEN TO HAVE MENTAL RETARDATION AND CHRONIC PSYCHOSIS AND LOW IQ. THAT IS THE WHOLE REASON TO PRESENT IT. WHEN YOU HAVE GOT A WEIGHTY AGGRAVATOR OF SHOOTING A LAW ENFORCEMENT OFFICER, IF YOU LEAVE THAT AGGRAVATOR IN PLACE WITHOUT PRESENTING THE FULL PICTURE OF THIS PERSON, WHICH IS THE MENTAL MITIGATION EVIDENCE, WHICH IS HIGHLY SIGNIFICANT IN THIS CASE, THEN THE RESULTS ARE PREDICTABLE, AS WHAT HAPPENED AT THE TRIAL IN THIS CASE, BUT AS TO DR.^MARIN'S TESTIMONY, WHICH I THINK IS CRITICAL FOR THE DETERMINATION, BASICALLY DR.^MARIN TESTIFIED, IN 1988, HE HAD NEVER SEEN MR. BURNS. HE HAD NEVER CONDUCTED ANY PSYCHOLOGICAL EVALUATION OF MR. BURNS, WHERE HE ACTUALLY ADMINISTERED TESTING. HE SAID HE CRITICIZED DR.^BERLAND BECAUSE HE GAVE THE OLD VERSION OF THE WACE TEST. HE DIDN'T GIVE ALL OF THE SUBTESTS OF THE WACE TEST, AND HE DISAGREED WITH DR.^BERLAND'S FINDING AS TO THE DISCREPANCY OF THE VERBAL AND PERFORMANCE IQ OF BEING INDICATIVE OF BRAIN DAMAGE, AND HE THOUGHT HE WAS DEPRESSED RATHER THAN PSYCHOTIC. ALL OF THOSE CONCERNS EXPRESSED BY DR.^MARIN WERE CURED BETWEEN 1988 AND 1994 BECAUSE DR.^BERLAND GAVE THE NEW TESTING, GAVE THE WACE TEST AND THE MMPI AND DR.^DEESE GAVE. IN 1994, DR.^DEESE'S TESTIMONY IN THIS CASE WAS WHOLLY UNCONTROVERTED. HE GAVE A WHOLE PSYCH TESTING AND GAVE EXTENSIVE EVIDENCE IN THE BRAIN DAMAGE. HELP US TO BE AS PRECISE AS YOU CAN BE, AS TO WHAT THE LAWYERS DID SAY WITH REFERENCE TO NOT CALLING DR.^BERLAND, AND THAT IS I WOULD LIKE TO KNOW WHETHER THEY SAID I CAN'T REMEMBER OR IT DEFINITELY WAS THIS OR IT DEFINITELY WASN'T OR WHATEVER, BECAUSE ONE OF MY CONCERNS IS THAT AT LEAST FROM THE PART OF THE RECORD THAT I SEE AT THE TIME THAT DR.^BERLAND WOULD HAVE BEEN CALLED, IS THAT THEY WERE ACTIVELY TALKING ABOUT CALLING HIM OR NOT CALLING HIM, THAT IS THAT IT APPEARS THAT THEY MADE A CONSCIOUS DECISION, BECAUSE THEY HAD THIS ARRANGEMENT THAT, IF THEY DID CALL HIM, THEY WOULD PROVIDE ALL HIS UPDATED RECORDS TO DR.^MARIN, AND THAT THAT

4 WOULD, ALL, AND THAT THEY KEPT TELLING THE TRIAL COURT AND THE PROSECUTOR THAT, WELL, WE WILL MAKE A DECISION, AND WE WILL TELL YOU, SO THAT YOU WILL BE, YOU WILL GET ALL THAT STUFF, AND IF I UNDERSTAND IT CORRECTLY, THE RECORD, ALSO, REFLECTS THAT, REALLY, THE PROBLEM WITH DR.^BERLAND GOING TO THE FUNERAL WAS ALL OVER. THAT IS THAT WAS ACCOMPLISHED THE PREVIOUS WEEK OR SOMETHING. THERE WASN'T AN ISSUE, REALLY, ABOUT DR.^BERLAND NO LONGER BEING UNAVAILABLE. BUT IF I READ THAT CORRECTLY, IT APPEARS THESE ARE LAWYERS THAT ARE THINKING ABOUT WHETHER THEY SHOULD OR SHOULDN'T, AND THEN THEY DECIDE NOT TO, AND THEY DECIDE NOT TO CONSCIOUSLY. THAT IS THAT THE RECORD SHOWS THAT. SO I AM VERY INTERESTED IN WHAT THEY DID TESTIFY TO, AT THIS POSTCONVICTION HEARING, AS FAR AS HOW EXPLICIT THAT WAS, SO YOU TELL ME. YOU KNOW WHAT THEY TESTIFIED TO. RIGHT. THEY TESTIFIED TO, FIRST OF ALL, THERE WERE TWO LAWYERS THAT TESTIFIED. ONE WAS ELLIOTT METCALF, THE ELECTED PUBLIC DEFENDER, AND HE DID SAY HE DID NOT KNOW WHY HE WAS CALLED AND THE OTHER ONE, DEBRUGE, THE ELECTIVE PART OF THIS CASE, AND HE SAID THAT HE WAS NOT CALLED FOR TWO REASONS. NUMBER ONE, THAT THERE WAS A FAMILY EMERGENCY, AND NUMBER TWO, HE FELT OVERWHELMED BY THE PROCEEDINGS. THAT IS WHY HE DIDN'T ASK FOR A CONTINUANCE. THAT IS HIS TESTIMONY. JUST BECAUSE THEY OBVIOUSLY MADE A DECISION, AT SOME POINT NOT TO CALL THE WITNESS, BECAUSE THE WITNESS WAS NEVER CALLED, SO THERE WAS A CONSCIOUS DECISION, SO TO SPEAK, NOT TO CALL THE WITNESS, BUT WHETHER THAT WAS STRATEGIC OR NOT, JUST BECAUSE YOU TELL THE JUDGE I AM THINKING ABOUT WHETHER I AM GOING TO CALL THIS WITNESS NEXT WEEK OR NOT, DOES THAT MEAN IF YOU DON'T CALL THE WITNESS, THAT THAT WAS A STRATEGIC DECISION? WE HAVE GOT THE TESTIMONY?? THAT WAS THE ONLY TESTIMONY THAT HE GAVE, WITH REFERENCE TO WHY HE DIDN'T CALL HIM. THAT WAS THE, THAT WAS IT, THAT IS THAT THERE WAS A FAMILY EMERGENCY OF DR.^BERLAND AND I WAS OVERWHELMED. THAT WAS THE ONLY REASONS HE GAVE, JUSTICE ANSTEAD. DR.^DEESE WAS NOT PART OF THE ORIGINAL, THIS IS SOMEBODY THAT YOU CALLED AT THE EVIDENTIARY HEARING. THAT'S CORRECT. WE MADE A CLAIM, BASED ON THE FACT THAT WE FELT THERE SHOULD HAVE BEEN A NEUROPSYCHE EVALUATION DONE, BASED UPON THE EVIDENCE THAT DR.^BERLAND TOLD THE LAWYERS ABOUT THE BRAIN DAMAGE. DID DR.^BERLAND TESTIFY THAT HE HAD TOLD THESE LAWYERS THAT THEY SHOULD GET ADDITIONAL TESTING DONE? SOMETIMES THERE ARE PEOPLE THAT SAY I CAN'T DO THIS BUT YOU NEED TO DO THIS TO DEVELOP BRAIN DAMAGE, GET ADDITIONAL TESTING DONE. WAS THERE ANY INDICATION FROM DR.^BERLAND THAT HE FELT ADDITIONAL TESTING OUGHT TO BE DONE, TO PUT THESE LAWYERS ON NOTICE THAT THEY SHOULD HAVE FURTHER TESTING DONE? I BELIEVE, JUSTICE PARIENTE, THAT HE ACTUALLY TESTIFIED TO THAT EXTENT IN THE 1988 TRIAL. HE TALKED ABOUT THE ADDITIONAL TESTING THAT COULD BE DONE. DR.^BERLAND. DR.^BERLAND DID. SO I BELIEVE THEY WERE ON NOTICE, IN THE ACTUAL COURT PROCEEDING, AND I AM IN MY REBUTTAL TIME, SO I WILL HAVE A SEAT. MR.^CHIEF JUSTICE MS.^DITTMAR. GOOD MORNING, YOUR HONORS. MAY IT PLEASE THE COURT. I AM CAROL DITTMAR, FROM THE

5 ATTORNEY GENERAL'S OFFICE, REPRESENTING THE APPELLEE, THE STATE OF FLORIDA. COULD YOU HELP ME WITH A QUESTION THAT I HAD EARLIER. THAT IS WHEN I READ THE TRIAL TRANSCRIPT, I GET THE IMPRESSION THAT THIS IS CLEARLY A CONSCIOUS CHOICE, THAT IS THAT THEY WERE THINKING ABOUT IT, AND BECAUSE THEY WERE ADVISING THE COURT WHETHER THEY WOULD OR NOT, SO IF I LIMITED MYSELF TO READING THAT, I WOULD SAY, WELL, IT IS ALMOST A CLASSIC CASE OF LAWYERS MAKING AN INFORMED DECISION ABOUT WHAT THEY WERE GOING TO DO, AND, OF COURSE, THEY CALLED ALL THESE OTHER WITNESSES OR WHATEVER, BUT NOW YOUR OPPONENT SAYS THAT THE POSTCONVICTION HEARING, THAT THEY SAID, NO, IT WASN'T A REAL INFORMED CHOICE AT ALL, THAT IT WASN'T SOMETHING THAT I WAS OVERWHELMED AND THE DOCTOR HAD A PROBLEM APPEARING, AND SO HELP ME WITH THAT. ABSOLUTELY. THE TRIAL COURT'S FINDING BELOW THAT THIS WAS A STRATEGIC DECISION IS AN ACTUAL FINDING WHICH IS ENTITLED TO GREAT DEFERENCE IN THIS COURT. THAT QUESTION, ITSELF, DOES NOT PRESENT AND MAKE ISSUE OF FACT AND LAW. THE QUESTION IS WAS THERE A STRATEGIC DECISION? THE JUDGE BELOW, AFTER CONSIDERING THE TESTIMONY AT THE EVIDENTIARY HEARING, AS WELL AS THE RECORD, DETERMINED THAT THERE WAS, AND THAT IS SUPPORTED BY NOT ONLY THE TESTIMONY OF THE RECORD BUT I THINK THE TESTIMONY AT THE EVIDENTIARY HEARING. YOU DO?? THAT FINDING THAT THE JUDGE MADE IS STRATEGIC?? IN ADDITION TO THE ACTUAL TRANSCRIPT OF THE RESENTENCING HEARING, YOU HAVE THE DEFENSE ATTORNEYS. YOU HAVE MR. DEBRUGE, WHO OBVIOUSLY IS THE ONE THAT MADE THE DECISION, SAYING THAT HE DID MAKE A DECISION NOT TO SEEK A CONTINUANCE, THAT THAT WAS A DECISION. NOW, MR. PINKARD IS SAYING THERE IS SOME DIFFERENCE BETWEEN A REASONED DECISION AND STRATEGY, AND HE DOESN'T REALLY EXPLAIN THE DISTINCTION. TO ME, IF AN ATTORNEY MAKES A REASONED DECISION NOT TO PRESENT A WITNESS, THAT IS A STRATEGY THAT IS A TRIAL TACTIC DECISION. THE PROBLEM IN THIS CASE IS THE DEFENSE ATTORNEYS KNEW IT. THEY CAME IN AND TESTIFIED AT THE POSTCONVICTION HEARING, YES, AS A MATTER OF STRATEGY, I DIDN'T CALL THIS WITNESS. THAT WAS GOING TO BE FATAL TO MR. BURNS'S POSTCONVICTION CLAIM. THEY CAME IN AND SAID, GEE, DON'T REMEMBER ANY STRATEGY ON THIS. DON'T KNOW WHY WE DIDN'T CALL HIM. I KNOW THERE WAS A FAMILY EMERGENCY, AND OTHER THAN THAT, I REALLY CAN'T EXPLAIN, AND THAT IS WHAT MR. DEBRUGE SAID. AS I READ THE BRIEF, I AM LEFT WITH THE IMPRESSION THAT IT WAS MORE FOR THE CONVENIENCE OF THE DOCTOR THAN FOR ANY OTHER REASON THAT THEY DIDN'T CALL. THEY TALKED ABOUT IT AND THEY CONSIDERED IT, BUT THE DOCTOR HAVING THESE FUNERAL ARRANGEMENTS AND SO FORTH, I ENDED UP WITH THAT IMPRESSION. I THINK THE CONVENIENCE AND THE AVAILABILITY OF A WITNESS AND THE HARDSHIP TO THE WITNESS IS ONE OF MANY FACTORS THAT AN ATTORNEY MAKES IN DECIDING WHETHER OR NOT TO USE THAT PERSON AS WITNESS. THAT IS JUST ONE MORE FACTOR. BUT IN A DEATH CASE AND THIS WITNESS WILL HELP YOUR CLIENT, ISN'T THAT INEFFECTIVE COUNSEL, IF YOU SAID, WELL, THIS IS FOR THE CONVENIENCE OF THE DOCTOR. I DON'T WANT HIM TO HAVE TO COME BACK FROM A FUNERAL, SO EVEN THOUGH HE WOULD HELP MY CLIENT IN THIS DEATH CASE, I WON'T PUT HIM ON. WELL, I THINK IF YOU ARE IN A SITUATION WHERE YOU HAVE A NECESSARY CRITICAL WITNESS WHO IS UNAVAILABLE, YOUR REMEDY IS TO GO TO THE TRIAL JUDGE AND SAY MY WITNESS IS NOT AVAILABLE. WHAT THE RECORD HERE REFLECTS WAS THAT DR.^BERLAND WAS GOING TO BE

6 BACK IN TOWN BY WEDNESDAY, AND THIS PENALTY PHASE WAS STILL GOING ON. THEY COULD HAVE CALLED HIM ON WEDNESDAY, IF THEY WANTED TO, AND THERE WAS NO REPRESENTATION THAT HAD HE HAD NOT COME BACK. I THINK SOMETHING ELSE THAT IS VERY IMPORTANT TO CONSIDER, WHEN YOU ARE LOOKING AT THE CREDIBILITY OF DEFENSE ATTORNEYS, AS TO STRATEGIC DECISION, THEY ALSO WERE ASKED IF THEY CONSIDERED PUTTING THIS ON AT THE SPENCER HEARING, AND THE DEFENSE ATTORNEY SAID, NO, THERE WAS NO STRATEGY THERE, WE JUST DIDN'T PRESENT IT, AND THERE WAS A LETTER FROM MR. DEBRUGE A COUPLE OF WEEKS BEFORE THE SPENCER HEARING, SAYING THAT I AM SORRY ABOUT YOUR GRAND MOTHER. I APPRECIATE THE EFFORT ON THIS CASE. THE JURY CAME BACK AGAINST US, BUT I THINK WE WILL PREVAIL, AND GOES ON TO SAY, I THINK THERE IS GOING TO BE ANOTHER HEARING SET BEFORE THE JUDGE. WE ARE CONSIDERING CALLING YOU AS A WITNESS AT THAT HEARING. LET ME KNOW IF THIS DATE IS GOING TO BE A PROBLEM WITH YOU, AND WE WILL BE IN TOUCH, ONCE WE MAKE THAT DECISION. NOW, I CAN UNDERSTAND NOT, THE DEFENSE NOT WANTING IT TO SHOW THEIR HAND TO THE PROSECUTOR AND TO THE TRIAL JUDGE AS A RESENTENCING PROCEEDING IS GOING ON, SO MAYBE THEY MADE THE DECISION ABOUT DR.^BERLAND AND MAYBE THESE REPRESENTATIONS HAD IN THE RECORD ABOUT, WELL, WE ARE STILL MAKING THE DECISION. WE HAVEN'T FINALIZED THAT DECISION, CAN BE QUESTIONABLE, BUT WHEN YOU HAVE A LETTER TO THE EXACT WITNESS, SAYING WE ARE CONSIDERING USING YOU AS A WITNESS TO COME BACK LATER AND SAY, NO, THERE WAS NO DECISION INVOLVED THERE, IS DIRECTLY REFUTED BY THAT LETTER. BUT WHAT COULD BE THE CONCEIVABLE REASON, AT THE SPENCER HEARING, FOR NOT PUTTING ON DR.^BERLAND? THEY NOW KNOW THEY HAVE GOT, THIS IS ESSENTIALLY, YOU HAVE GOT, PROBABLY GOING TO BE A SINGLE-AGGRAVATOR CASE. THE JURY HAS COME BACK WITH A DEATH RECOMMENDATION, AND THEY HAVE GOT EVIDENCE THAT THIS PARTICULAR PERSON HAS, IS POTENTIALLY MENTALLY RETARDED, POTENTIALLY BRAIN DAMAGED, POTENTIALLY HAS PSYCHOTIC EPISODES THAT COULD EXPLAIN WHAT HAPPENED. WHAT COULD BE, AT THAT POINT, A STRATEGY REASON THAT WOULD BE ONE THAT IS THAT WOULD AFFECT, THAT THEY WOULD SAY THAT THERE WOULD AND NEGATIVE TO PUTTING HIM ON THE STAND, BECAUSE SOMEHOW IT WOULD RUN COUNTER TO WHAT THEY ARE TRYING TO DO BEFORE THE TRIAL JUDGE? I MEAN, WHY WOULDN'T YOU WANT MENTAL MITIGATION IN A CASE LIKE THIS, AT LEAST BEFORE THE JUDGE? ONE THING THE JUDGE JOHNSON NOTED AFTER THE EVIDENTIARY HEARING BELOW, WAS THAT THIS WAS INCONSISTENT WITH THEIR DEFENSE THEORY, AND EVEN GOING INTO THE SPENCER HEARING, IF YOU READ THE SENTENCING MEMORANDUM FILED BY THE DEFENSE PRIOR TO THE SPENCER HEARING, THAT IS IN THE RECORD FROM THE RESENTENCING, VOLUME 16, PAGES 108 THROUGH 110, ONE OF THE THINGS THAT THEY MENTION IN DISCUSSING PROFESSOR RATLETT'S TESTIMONY, ABOUT WHAT A GOOD PRISON INMATE MR. BURNS WOULD MAKE AND HOW WELL HE WOULD DO IN THE PRISON ENVIRONMENT, THEY SAY THERE IS NO EVIDENCE OF MENTAL ILLNESS. THEY STATE THAT IN THEIR SENTENCING MEMORANDUM, THAT HE FITS THE CRITERIA, THE OBJECTIVE CRITERIA, THAT PROFESSOR RATLETT DISCUSSED IN HIS LITTLE OBJECTIVE FORMULA TO DETERMINING HOW WELL SOMEONE WILL DO IN INCARCERATION. WOULD YOU ADDRESS THE SECOND PRONG OF WHETHER WE FOUND IN THE ORIGINAL CASE THIS IS A SINGLE-AGGRAVATOR CASE, NO MENTAL MITIGATION, AND WE SAID THERE WAS NO SIGNIFICANT MITIGATION. COULD YOU ADDRESS WHETHER DR.^BERLAND AND DR.^DEESE, IF WE WOULD FIND DEFICIENT PERFORMANCE, WHETHER THAT WOULD AMOUNT TO THE KIND OF SIGNIFICANT MITIGATION THAT COULD MITIGATE A SENTENCE OF DEATH IN A CASE LIKE THIS? I THINK WE HAVE AN EXCEPTIONAL SITUATION IN THIS CASE, BECAUSE WE HAVE THE ADVANTAGE OF HAVING A PENALTY PHASE, WHERE THIS EVIDENCE WAS PRESENTED. WHICH WE KNOW THE JURY CAME BACK AND RECOMMENDED DEATH, DESPITE THE EVIDENCE, AND, ALSO, THE TRIAL COURT'S FINDING, AFTER THE INITIAL SENTENCING, THAT THE STATUTORY MENTAL

7 MITIGATORS HAD NOT BEEN PROVEN. BUT THEY SAY THAT DR.^BERLAND STRENGTHENED HIS TESTIMONY, BETWEEN 1988 AND THE NEW SENTENCING HEARING, TO DO NEW TESTING, THAT DOCTOR, THAT THE DR.^DEESE HAD NEUROPSYCHOLOGICAL TESTING THAT HAD NEVER BEEN DONE, THAT SHOULD HAVE BEEN DONE, THAT WASN'T DONE. WHAT ABOUT THE STRENGTH OF THAT TESTIMONY? THEY DO SAY THAT. THEY SAY THAT BETWEEN, IN FACT WHAT I THINK MR. PINKARD SAID WAS THAT DR.^MARIN'S CRITICISMS FROM 1988 HAD BEEN REMEDIED BY 1994, AND I THINK THAT IS A TERRIBLY INACCURATE STATEMENT, BASEBASED ON THE TESTIMONY THAT WAS PRESENTED IN 1988 BY DR.^BERLAND AND DR.^MARIN. FIRST OF ALL, BERLAND'S TESTIMONY, I THINK YOU HAVE TO DIVIDE IT UP INTO TWO DIFFERENT AREAS. I THINK YOU HAVE HIS CONCLUSION THAT THERE IS SOME SORT OF PSYCHOSIS, WHICH IS BASED ON THE MMPI TESTING THAT HE DID, AND THAT IS THE TESTIMONY PRIMARILY THAT, DR.^MARIN WAS ADDRESSING, IN FINDING FAULT WITH DR.^BERLAND'S CONCLUSION. THAT IS, YOU HAVE TO SET ASIDE THE TESTIMONY ABOUT THE LOW INTELLIGENCE. THAT IS A COMPLETELY DIFFERENT ISSUE, AND BERLAND DISCUSSED HOW THEY ARE COMPLETELY DIFFERENT. LOOKING JUST AT THE QUESTION OF PSYCHOSIS, DR.^BERLAND SAID, YOU KNOW, I GAVE HIM THIS MMPI, AND HIS SCORES, TO ME, DEMONSTRATED THAT HE HAD THE PSYCHOSIS, AND HIS PROFILE IS ACTUALLY CONTROVERSIAL ON THAT, SO WHAT I DID, INSTEAD OF LOOKING AT THE ELEVATED SCALES, WHICH I KNOW THIS COURT HAS READ A LOT OF TESTIMONY ABOUT MMPI TESTING. IT IS BASICALLY HUNDREDS OF TRUE/FALSE QUESTIONS, AND WHAT DR.^BERLAND SAID IS I USED MY OWN SCORING. INSTEAD OF LOOKING AT THE ELEVATED SCALES THAT YOU ARE SUPPOSED TO USE UNDER THE MMPI GUIDELINES, HE LOOKED AT HOW BURNS RESPONDED TO INDIVIDUAL QUESTIONS, AND HE FOUND THAT, IN INDIVIDUAL QUESTIONS, BURNS WAS ENDORSING SYMPTOMS OF MENTAL ILLNESS AND CONCLUDED FROM THAT, THAT BURNS WAS MENTALLY ILL. MARIN CAME IN AND SAID THIS IS RIDICULOUS. THIS ISN'T WHAT YOU DO WITH AN MMPI. HE HAD A COPY OF THE MMPI THAT BERLAND HAD GIVEN TO BURNS. HE COULD SEE THE EXACT RESULTS OF THIS OBJECTIVE THING. THEY ARE LOOKING AT THE SAME TEST, AND MARIN SAYS HIS SCHIZOPHRENIA SCALE WAS WELL WITHIN NORMAL, WAS ONE OF HIS LOWEST, AND THERE IS ABSOLUTELY NO RELIABILITY TO THE SUGGESTION THAT THIS TEST CAN BE THE BASIS FOR FINDING OF PSYCHOSIS. THERE IS NOTHING ELSE IN THIS DEFENDANT'S HISTORY THAT SHOWED THAT HE WAS EVER TREATED FOR MENTAL ILLNESS? NO. OR ANYBODY THAT TESTIFIED OF THESE WITNESSES, THAT HE WAS SOMEBODY THAT WOULD GO IN AND OUT OF?? NO. DR.^BERLAND STATED THAT, IN FACT, HIS TESTING, HE FELT, REVEALED THAT BURNS WAS TRYING TO MINIMIZE HIS PROBLEMS. NOW, MARIN, ALSO, SAID THAT THERE WERE SUBTESTS, THERE WERE SUBPARTS OF THE MMPI THAT LOOK FOR THAT, AND THEY DO NOT SHOW THAT HE IS ATTEMPTING TO MINIMIZE HIS PROBLEMS, BUT THAT WAS DR.^BERLAND'S EXPLANATION AS TO WHY NO ONE ELSE IN MR. BURNS'S HISTORY HAD NEVER NOTED ANY INDICATION OF MENTAL ILLNESS. FROM THE SIGNIFICANT MITIGATOR OF UNDER EXTREME MENTAL OR EMOTIONAL DISTRESS AT THE TIME OF THIS MURDER, WHAT YOU WOULD SAY IS THAT DR.^BERLAND'S TESTIMONY WAS NO STRONGER, WOULD HAVE BEEN NO STRONGER AT THE RESENTENCING THAN IT WAS, AND IT WOULD BE SUBJECT TO THE SAME ATTACK. ACTUALLY IT WOULD BE CONSIDERABLY WEAKER, BECAUSE ONE THING THAT DR.^BERLAND TESTIFIED TO AT THE POSTCONVICTION EVIDENTIARY HEARING, WAS THAT ALTHOUGH IN 1988, HE SAID THAT THE STATUTORY MITIGATOR OF EXTREME DISTURBANCE APPLIED, HE SAID THAT AS

8 TO THE SUBSTANTIAL IMPAIRMENT, HE DIDN'T THINK THE IMPAIRMENT WAS SUBSTANTIAL, SO HE WOULD TREAT THAT AS NONSTATUTORY MITIGATION, BUT THE EXTREME DISTURBANCE, HE WOULD FIND AS A STATUTORY MITIGATOR. ACCORDING TO HIS TESTIMONY AT THE EVIDENTIARY HEARING, BY 1994, WHEN THE RESENTENCING WAS HELD, BERLAND FELT LIKE HIS UNDERSTANDING WAS HE INVADE THE PROVINCE OF THE JURY, IF HE FOUND A STATUTORY MENTAL MITIGATOR TO APPLY, SO HE SAID THAT, IF HE HAD BEEN CALLED TO TESTIFY IN 1994, HE WOULD NOT HAVE BEEN ABLE TO TESTIFY, THAT EITHER ONE OF THESE STATUTORY MITIGATORS APPLIED. HE SAID THAT IT WASN'T UNTIL SOMETIME AFTER '94, HE BECAME AWARE OF THE DISTEN CASE AND HE SAID, AGAIN, HE WAS COMFORTABLE MAKING A FINDING ABOUT STATUTORY MENTAL MITIGATORS, BUT DURING THAT WINDOW PERIOD, HE WOULD NOT HAVE EVEN TESTIFIED IF THE FIRST MENTAL MITIGATOR APPLIED, SO I THINK HIS TESTIMONY BASED ON THAT WOULD HAVE BEEN SUBSTANTIALLY WEAKER IN NOW, HE DID SAY THAT HE WAS ABLE TO TALK TO MORE LAY WITNESSES AND WAS ONLY ABLE TO CORROBORATE BASED ON SOME OF HIS FINDINGS, BASED ON WHAT THE DEFENDANT HAD TOLD HIM PRIOR TO WOULD YOU GET INTO THE MENTAL MITIGATORS? THAT IS WHAT DR.^DEESE DISCUSSED, BECAUSE DR.^DEESE, KEEPING THE WEIGHT OF THE INTELLIGENCE AND THE MMPI SEPARATE, DR.^DEESE DID NOT DISCUSS ANYTHING ABOUT PSYCHOSIS OR MENTAL ILLNESS. HE ONLY TALKED ABOUT THE LOW INTELLIGENCE, WHICH IS WHAT BERLAND HAD DISCUSSED WITH HIS WACE. I THOUGHT HE, ALSO, ADDRESSED THE BRAIN DAMAGE. WELL, HIS INTERPRETATION OF THE BRAIN DAMAGE, HE, DR.^DEESE TESTIFIED THAT, IN HIS OPINION, ANYBODY WHAT IQ OF UNDER 80 IS BRAIN DAMAGED, SO HE WAS FINDING A BRAIN DAMAGE, BASED ON THE LOW INTELLIGENCE, BUT HE WASN'T CORROBORATING DR.^BERLAND'S FINDING OF BRAIN DAMAGE DUE TO MENTAL ILLNESS. AS TO THE LOW IQ?? I HAVE ANOTHER CONCERN WITH THE DOCTOR, AND AS I RECALL, THE DOCTOR TESTIFIED THAT HE FELT THAT THE COST OF?? THAT, BECAUSE OF FLORIDA CASE LAW, I GUESS HE WAS REFERRING TO, HE COULD NOT TESTIFY THAT PERSON, HE WOULD NOT HAVE TESTIFIED THAT THE PERSON WAS SUBSTANTIALLY. IS THIS HIS ROLE, TO MAKE THOSE KINDS OF LEGAL DETERMINATIONS AND CIRCUMSCRIBE HIS TESTIMONY IN THAT FASHION? WELL, I THINK HE IS ENTITLED TO HIS OPINION, AND THAT IS HIS OPINION AT THE TIME. I MEAN, IT IS HIS OPINION. WOULD IT BE DIFFERENT IN 1988 FROM 1994, TO 2000? HE IS ENTITLED TO HIS OPINION AT EACH?? THAT WASN'T HOW I INTERPRETED IT. I INTERPRETED HIS TESTIMONY AS BEING THAT EVEN IF I FELT THAT HE WAS SUBSTANTIALLY IMPAIRED, I WOULD NOT HAVE FELT FREE TO SAY THAT, BECAUSE IT IS MY UNDERSTANDING OF LAW, I WASN'T SUPPOSED TO GO THAT FAR. WELL THAT, IS, YOU KNOW, THAT WAS HIS TESTIMONY. WELL, IS THAT?? THAT IS WHAT I AM ASKING. IS THAT A PROBLEM? I DON'T KNOW WHAT THE PROBLEM IS WITH THAT. I MEAN, IF THAT IS HIS OPINION AND THAT IS WHAT HE FEELS COMFORTABLE WITH HIS TESTIMONY, DR.^BERLAND IS SOMEONE WHO IS VERY EXPERIENCED WITH DEATH PENALTY CASES, IS VERY FAMILIAR WITH THE CONCEPT OF AGGRAVATING AND MITIGATING CIRCUMSTANCES. HE FREQUENTLY, IN TESTIFYING, WILL DISCUSS EVIDENCE AS NONSTATUTORY MITIGATION, WHICH HE DID IN THIS CASE. HE TALKED ABOUT, WELL, YOU KNOW, AS TO THE SIGNIFICANT IMPAIRMENT, WHICH HE WOULD NOT SAY WAS SUBSTANTIAL, HE SAID, BECAUSE IT WASN'T SUBSTANTIAL, IT WAS SIGNIFICANT, YOU TREAT IT AS NONSTATUTORY, AS OPPOSED TO STATUTORY, SO HE IS WELL?VERSED IN TRYING TO DETERMINE HOW HIS FIELD OF MENTAL HEALTH FITS INTO THE WHOLE CAPITAL SENTENCING

9 SCHEME. BUT HE IS NOT A LAWYER, EVEN, MAKING THESE LEGAL DETERMINATIONS THAT IS DIFFICULT FOR JUDGES IN SOME INSTANCES. AND CERTAINLY JURIES. I WOULD NOT SUSPECT THAT THEY WOULD BE MADE, WHOEVER, A DIFFERENT EXPERT IS WOULD DISAGREE AND MAKE ANOTHER ONE. HE WOULD SAY, I FEEL FREE TO TESTIFY TO THAT. AND CERTAINLY EXPERTS DO DISAGREE ALL THE TIME AND REACH DIFFERENT CONCLUSIONS, AND THAT IS SOMETHING THAT JURIES AND JUDGES HAVE TO TAKE INTO CONSIDERATION. I DO WANT TO ADDRESS, THOUGH, THE LOW INTELLIGENCE, AND I KNOW IT A HAS BEEN THROWN AROUND A COUPLE OF TIMES BY DEFENSE ATTORNEYS THERE, HAS NEVER BEEN A DIAGNOSIS IN THIS CASE. THE TWO MENTAL HEALTH EXPERTS WHO HAVE EVALUATED MR. BURNS ARE DR.^BERLAND AND DR.^DEESE. NEITHER ONE OF THEM CAME TO THE CONCLUSION THAT HE IS MENTALLY RETARDED. THEY DISCUSSED HIS IQ AS ONE FACTOR, AND THEY SAY THAT HE TESTED IN THE HIGH 60s. ONE WAS 67 AND ONE WAS 69. THEY BOTH SAID THAT THEY FELT LIKE BURNS DID?? ONE WAS 67 AND ONE WAS 69. THEY BOTH SAID THAT BURNS DID SURPRISINGLY WELL FOR SOMEONE AT THAT LEVEL. WHAT THEY DID SAY WAS IT PUT HIM IN THE EFFECTIVE RANGE. ONE WAS 67 AND ONE WAS 69. HOWEVER, YOU HAVE TO LOOK AT DR.^DEESE'S TESTIMONY IN DETERMINING WHAT THAT MEANS, THAT HE IS SOMEONE THAT CAN FUNCTION IN SOCIETY. HE SAID HE IS SURPRISED THAT SOMEONE AT THAT IQ LEVEL WOULD HAVE BEEN A REGULAR HIGH SCHOOL GRADUATE, AND HE DID MAKE THAT DETERMINATION AND FOUND THAT TO BE TRUE, THAT BURNS DID GRADUATE FROM HIGH SCHOOL, SO THERE IS REALLY NO SUGGESTION HERE OF THE LACK OF ADAPTIVE BEHAVIOR, THE INABILITY TO FUNCTION IN SOCIETY. A LOT OF THE OTHER FACTORS THAT GO INTO THE QUESTION OF MENTAL RETARDATION SEEM TO BE REFUTED BY THE DEFENSE EXPERTS IN THIS CASE. OBVIOUSLY DR.^MARIN WAS NOT ABLE TO EXAMINE BURNS. THE STATE TRIED TO GET THAT AT THE FIRST TRIAL AND WAS UNSUCCESSFUL. PROFESSOR RATLETT DID NOT EXAMINE HIM OR EVALUATE HIM FOR ANY REASON, SO THERE HAS NOT BEEN A DIAGNOSIS OF MENTAL RETARDATION. ALTHOUGH THE DOCTORS ADMITTED THAT HIS NUMBERS MIGHT FALL WITHIN THAT CATEGORY, THEY, ALSO, ADMIT THAT THERE IS A LOT MORE TO A DIAGNOSIS OF MENTAL RETARDATION THAN SIMPLY THE NUMBERS, AND THEY DIDN'T ACTUALLY USE THE WORDS "DIAGNOSIS" AND "MENTAL RETARDATION". THEY DIDN'T EVEN TALK ABOUT THAT AS A POSSIBILITY OR AS A CONCEPT. THEY SAID, OKAY, THIS IS WHERE HIS NUMBERS FALL, BUT HE IS STILL ABLE TO FUNCTION IN SOCIETY. HE HAD STABLE EMPLOYMENT ALL HIS LIFE. HE GRADUATED FROM HIGH SCHOOL. HE HAD A LOT OF THINGS THAT GO AGAINST DEFINING MENTAL RETARDATION, SO IT IS JUST NOT A FACTOR IN THIS CASE. AGAIN, THERE WAS SOME DISCUSSION ABOUT THE ACTUAL TEST THAT WAS USED, AND I THINK THERE WAS A SUGGESTION, MAYBE, DR.^BERLAND SAID I USE THE OLD VERSION OF THE WACE, THE OLD INTELLIGENCE TEST, BECAUSE I DON'T REALLY TEST FOR INTELLIGENCE. I ACTUALLY FIND THAT TO BE AN INSTRUMENT WHICH CAN BE USED TO INDICATE SOME OTHER TYPE OF BRAIN DAMAGE, SO HE GIVES THAT TEST NOT BECAUSE HE IS TRYING TO DETERMINE AN INTELLIGENCE LEVEL BUT BECAUSE HE FEELS LIKE LOOKING AT THE DIFFERENT SCORES OF THE SUBTESTS AND SEEING HOW THEY RELATE TO EACH OTHER, THAT HE CAN PREDICT SOME SORT OF MENTAL ILLNESS FROM THE SCORES, SO HE SAYS HE USES THE FIRST TEST, BECAUSE HE THINKS IT IS THE BETTER INDICATOR. NOW, WHAT HE SAYS IS, WHEN THEY CAME OUT WITH THE REVISED VERSION OF THE WACE, THE SCORES DROPPED, AND ACCORDING TO DR.^BERLAND, WHAT THAT MEANS IS THAT ANY SCORES THAT HE HAD GOTTEN ON THE INITIAL WACE WOULD BE INFLATED. DR.^DEESE CORRECTED THAT AND SAID ACTUALLY WHAT HAPPENED IS WHEN THEY CAME OUT OF A THIRD VERSION OF THE WACE, THEY CORRECTED SOME OF THE PROBLEMS WITH THE REVISED VERSION, AND WHAT DR.^DEESE SAID IS THE FIRST VERSION AND THE THIRD VERSION ARE THE MOST ACCURATE PREDICTORS, AND THE REVISED ACTUALLY LOWERS THE OR LOWERS THE SCORES, IS THE ONE THAT IS NOT ACCURATE, BASED ON WHAT WE KNOW ABOUT TESTING AND

10 PSYCHOLOGICAL TESTS. SO TO THE EXTENT THAT DR.^BERLAND SAYS, WELL, YOU KNOW, I HAVE GOT THESE SCORES BUT THESE SCORES ARE INFLATED, BECAUSE I USED THE OLD TEST, DR.^DEESE REFUTED THAT AND SAID WHAT HAPPENED IS IT IS NOT THAT THE WACE FIRST VERSION AND THIRD VERSION INFLATE YOUR SCORES. IT IS THE REVISED VERSION HAD LOWER SCORES FOR PEOPLE WHEN THEY SHOULDN'T HAVE, SO HE CLEARED UP THAT PROBLEM, SO THERE REALLY ISN'T ANYTHING IN THIS RECORD THAT SUGGESTS THAT LOW INTELLIGENCE IS ANYMORE THAN NONSTATUTORY MITIGATION, AND IT WAS AVAILABLE AT THE FIRST TRIAL. IT WAS CONSIDERED AND, AGAIN, YOU STILL HAVE THE JURY RETURNING A DEATH VERDICT. YOU STILL HAVE THE JUDGE COMING BACK AND IMPOSING A DEATH SENTENCE. MR.^CHIEF JUSTICE THANK YOU, COUNSEL. THANK YOU VERY MUCH. MR.^CHIEF JUSTICE REBUTTAL. THANK YOU, YOUR HONOR. BRIEFLY, IN REGARD TO PLACING ANY EVIDENTIARY VALUE ON THE PREVIOUS RECOMMENDATION OF DEATH FROM THE JURY IN 1988, THIS COURT OVERTURNED THAT AND FOUND THAT THERE WERE INFLUENCES ON THE JURY RELATING TO THE VICTIM IMPACT, SO THIS COURT FOUND, AT THAT TIME, THAT THE JURY'S VERDICT AND THE WORDS OF THE COURT WAS EMOTIONAL ISSUES MAY HAVE INFLUENCED THE JURY, SO I DON'T THINK WE OUGHT TO PLACE ANY EVIDENTIARY VALUE ON THAT, WHEN WE ARE CONSIDERING THE PREJUDICE PRONG. AS TO THE PREJUDICE PRONG OF THE ANALYSIS, THIS IS A SINGLE?AGGRAVATOR CASE, AND THIS COURT DISTINGUISHED THIS CASE FROM THE SONGER CASE, WHICH IS ESSENTIALLY THE SAME FACT PATTERN, BY FINDING THAT THERE WAS NO MENTAL MITIGATION EVIDENCE PRESENTED IN THIS CASE. WOULDN'T THE ORIGINAL SENTENCING JUDGE HEARD DR.^BERLAND, AND DID NOT FIND A STATUTORY MITIGATOR OF EXTREME EMOTIONAL DISTRESS AT THE TIME OF THE MURDER. CORRECT? I BELIEVE HE DID FIND THE STATUTORY MITIGATOR THE FIRST TIME AROUND, AND THE COURT WAS UNABLE, BASICALLY WHAT HAPPENED WAS THE COURT STRUCK THE HAC, AND YOU ARE UNABLE FROM READING THE JUDGE'S ORDER, TO DETERMINE WHAT WEIGHT HE PLACED TO THE HAC OR THE OTHER MITIGATOR OR THE OTHER MITIGATORS IN THE CASE, AND I BELIEVE THERE IS A STATUTORY MITIGATOR. WE CAN GO BACK AND WE BELIEVE THAT WITH DR.^BERLAND'S TESTIMONY, THERE WAS A STATUTORY MITIGATOR FOUND? I BELIEVE SO, JUSTICE PARIENTE. I BE LEE THAT WAS FOUND, BUT JUST TO EMPHASIZE, DR.^DEESE'S TESTIMONY WAS UNCONTROVERTED IN THIS CASE, AND THAT IS FOUND ON PAGE 72 OF THE RECORD, HE ACTUALLY MAKES A FINDING THAT HE IS RETARDED, BASED ON?? WE ARE REALLY GOING AS TO WHETHER IT IS DEFICIENT FOR TRIAL COUNSEL NOT TO PURSUE FURTHER EXPERTS BEYOND DR.^BERLAND, IN AN EFFORT TO PUT ON THIS CASE, AND YOU GOT A SITUATION HERE, WHERE YOU HAVE GOT A HIGH SCHOOL GRADUATE. YOU HAVE GOT SOMEONE IN HIS FORTIES WHO HAS HELD STEADY EMPLOYMENT. I MEAN, ISN'T THIS ALL SORT OF WHATEVER, RUN CONTRARY TO WHAT KIND OF WEIGHT WOULD BE GIVEN TO A LOW INTELLIGENCE SCORE, IN TERMS OF A CASE LIKE THIS? WELL, I THINK DR.^DEE ADDRESSED THAT IT IS NOT UNUSUAL FOR SOMEONE WHO IS MENTALLY RETARDED TO BE ABLE TO HOLD A JOB. HE TESTIFIES ABOUT SOMEBODY THAT WAS A TAXICAB DRIVER BACK IN HIS OWN TOWN, EVEN THOUGH HE WAS RETARDED, BUT I THINK THE STATE OF FLORIDA HAS SPOKEN ABOUT THE SIGNIFICANCE OF MENTAL RETARDATION. MR. CHIEF JUSTICE

11 COUNSEL, I THINK, AT LEAST AT MY LOOKING AT THE FIRST OPINION OUT OF THIS COURT, INDICATES THAT THERE WAS ONE STATUTORY MITIGATOR FOUND, AND THAT WAS NO CRIMINAL HISTORY. I THINK?? AND THERE WERE, IT SAYS FINDING TWO AGGRAVATING FACTORS, ONE STATUTORY FACTOR, NO SIGNIFICANT CRIMINAL HISTORY, AND VARIOUS NONMITIGATING CIRCUMSTANCES, WHICH WERE CONSIDERED NOT SIGNIFICANT, AND THOSE ARE LISTED IN THE FOOTNOTE, AND THEY DON'T HAVE TO DO WITH MENTAL MITIGATION. I COULD BE WRONG, JUSTICE WELLS, BUT I THINK IF YOU LOOK AT THE JUDGE'S ORDER, THERE IS A FINDING AFTER STATUTORY MENTAL MITIGATOR. I THINK I AM RIGHT ABOUT THAT. ON THIS ISSUE OF THE MENTAL RETARDATION, IN TERMS OF ESTABLISHING PREJUDICE, AND HOW IT WOULD HAVE BEEN WEIGHED IN THIS CASE, FIRST OF ALL, WE DON'T, THERE IS CONTROVERTED EVIDENCE AS TO WHETHER THIS DEFENDANT IS, IN FACT, MENTALLY RETARDED. NOBODY IN, EVEN IN THE EVIDENTIARY HEARING, SAID THAT HE MET THE DEFINITION OF MENTAL RETARDATION, BOTH IN TERMS OF THE IQ AND THE ADAPTIVE FUNCTIONING, WHICH ARE BOTH PREREQUISITES TO THE NEW STATUTE THAT HAS BEEN PASSED AS OF LAST YEAR, CORRECT? RIGHT. WELL, I THINK THAT DR.^DEESE DOES TESTIFY THAT HE FEELS HE IS RETARDED AND THAT HE IS ABLE TO ADAPT FROM HIS RETARDATION AND WAS ABLE TO HOLD A JOB AND WHATNOT, BUT I BELIEVE THAT MY UNDERSTANDING IS?? WOULD YOU AGREE THAT THE STATUTE IS TWO PRONGED, EVEN ASSUMING THAT IT WOULD HAVE ANY APPLICABILITY HERE, THAT THERE HAS GOT TO BE A FINDING CONCERNING ADAPTIVE FUNCTION SOMETHING. I CAN'T TELL YOU WHETHER HE FALLS UNDER THE STATUTE, BUT I DO BELIEVE THAT THIS COURT HAS HELD THAT MENTAL RETARDATION IS SOMETHING THAT SHOULD BE PRESENTED AS MITIGATING FACTOR. THAT WAS HELD IN THE HALL CASE AND THE THOMPSON CASE, WHEN WE WERE MAKING THE ARGUMENTS UNDER EVOLVING STANDARD OF DECENCY WE SAY THAT YOU CAN'T EXECUTE A RETARDED PERSON, SO I THINK IT IS HELD SIGNIFICANT BY THIS COURT. MR.^CHIEF JUSTICE THANK YOU, COUNSEL. WE APPRECIATE YOUR HELP IN THIS CASE.