MAY IT PLEASE THE COURT. MY NAME IS GEORGE BURDEN. I AM HERE ON BEHALF OF SCOTT MANSFIELD.

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. THE NEXT CASE IS SCOTT MANSFIELD VERSUS THE STATE OF FLORIDA. MR. BURDEN, GO AHEAD AND GET SOME WATER, IF YOU WISH. MAY IT PLEASE THE COURT. MY NAME IS GEORGE BURDEN. I AM HERE ON BEHALF OF SCOTT MANSFIELD. EXCUSE ME. I COULDN'T HEAR YOU. GEORGE BURDEN, LIKE TAX BURDEN. I AM HERE --. I DON'T KNOW WHETHER THE MIKE CAN GET ANY CLOSER OR NOT, BUT THAT MAY HELP. I CAN LEAN OVER. I AM HERE ON BEHALF OF THE APPELLANT, SCOTT MANSFIELD. HE HAS BEEN CHARGED AND CONVICTED OF FIRST-DEGREE MURDER AND SENTENCED TO DEATH ON THE 12-0 JURY VOTE. IT WAS A MURDER OF SARAH ROBLISS, IN THE AREA OF BOGGY CREEK ROAD, OFF THE SIDE OF A WINN-DIXIE. THAT EVENING, MISS ROBE LIST WAS OUT -- MISS ROBLISS WAS OUT, BAR HOPPING WITH FRIENDS AND APPARENTLY RAN INTO THE APPELLANT. THEY HAD PLAYED POOL AND DRANK TOGETHER. THEY RAN INTO ANOTHER GENTLEMAN, BY THE NAME OF MR. FENORIN. AFTER BAR CLOSING TIME, THE THREE OF THEM WERE SEEN TOGETHER BY SHERIFF DEPUTY, AND AT THREE O'CLOCK IN THE MORNING, MR. MANSFIELD AND MISS ROBLES WAS SEEN IN THE WINN- DIXIE, APPROXIMATELY 3:00 A.M.. MR. FINIMIN WAS SEEN IN THE WINN-DIXIE MOMENTS LATER, AND ACCORDING TO THAT RIGHT AFTER THAT IS WHEN THE GRUESOME CRIME OCCURRED RIGHT OUTSIDE OF THE WINN-DIXIE. THE FIRST ISSUE I WOULD LIKE TO SPEAK ABOUT -- LET ME ASK YOU A PRELIMINARY QUESTION. WHAT WAS THE ACTUAL DEFENSE THAT WAS PUT ON AT TRIAL? THE DEFENSE WAS THAT THIS WAS NOT THE PERSON TRAITOR OF THE CRIME. -- THE PERPETRATOR OF THE CRIME. WRONG, MISIDENTIFICATION? WAS THERE AN ALLEGATION THAT THE OTHER MAN WHAT IS THE PERPETRATOR, MR. FINIMEN? NO. NOT BY DEFENSE COUNSEL. THE ONLY OTHER ISSUE WAS A CONFESSION RECEIVED IN JAIL HOUSE CONFESSION MONTHS AFTER THE CRIME. THAT WAS THE ONLY EVIDENCE OF GUILT. THE PHYSICAL EVIDENCE WAS THAT THE BEEPER WAS FOUND AT THE SCENE. AS FAR AS ANY PHYSICAL EVIDENCE LINKING MR. MANSFELD TO THE MURDER, THERE WASN'T ANY PHYSICAL EVIDENCE? I WOULD SUBMIT THAT THE TESTIMONY BY THE MEDICAL EXAMINER, WHICH IS THE POINT OF THE DISCOVERY VIOLATION IN THIS CASE, WOULD, ALSOINGS -- WOULD, ALSO, BE PHYSICAL EVIDENCE -- THAT WAS THE RING? RIGHT MUCH THE IMPRESSION OF THE RING ON THE NECK IS SORT OF LIKE A FINGERPRINT OF THE PERSON. I WOULD, ALSO, CHARACTERIZE THAT AS PHYSICAL EVIDENCE.

2 DID MR. MANSFELD DIDN'T ACTUALLY GIVE A CONFESSION TO THE CRIME? ONLY TO THE PERSON IN THE JAIL 14 MONTHS LATER. COULD YOU ADDRESS THE SIGNIFICANCE, ASSUMING WE FOUND THAT MILES AN HOUR AND A -- THAT MIRANDA WARNINGS SHOULD HAVE BEEN GIVEN, WHEN HE WAS TAKEN INTO CUSTODY, WHAT WAS IT THAT WAS USED FROM THOSE STATEMENTS AFTER HE WAS QUESTIONED BY THE POLICE IN THE POLICE STATION, THAT WOULD HAVE BEEN HARMFUL TO YOUR CLIENT? THE ONLY PART OF THE POLICE STATEMENTS THAT WAS HARMFUL WAS THE FACT THAT HE ADMITTED BEING WITH THE VICTIM THAT EVENING, THAT THAT WAS SOMETHING THAT WAS ADMITTED TO THAT HAD HE BEEN GIVEN HIS WARNINGS AND SEEK COUNSEL, MAYBE NOT HAVE ADMITTED TO, AND SO IT WOULD HAVE MADE THE STATE'S BURDEN MORE DIFFICULT TO PROVE. WELL, THAT WAS ESTABLISHED BY NUMEROUS OTHER WITNESSES, WAS IT NOT? IT WAS STATED BY THE CLERK IN THE WINN-DIXIE, THAT HE SAW THIS PERSON WITH MISS ROBLES, YES. BUT YOU KNOW, THAT IS A CHANCE ENCOUNTER. IT IS THE JURY HAS TO GO THROUGH THEIR MIND WHETHER THAT IS TRUE, BUT WHEN YOU HAVE AN ADMISSION OF THE PERSON, YES, I WAS WITH THE PERSON, IT IS FAR DIFFERENT. PEOPLE FROM THE BARROW-. YEAH, BUT THAT WAS AN HOUR -- PEOPLE FROM THE BAR -- THAT WAS AN HOUR BEFORE. I UNDERSTAND THAT, BUT A NUMBER OF WITNESSES PUT THE TWO TOGETHER DURING THE COURSE OF THE NIGHT, INTO THE EARLY-MORNING HOURS, IS THAT NOT CORRECT? THAT'S CORRECT, JUSTICE. LET ME ASK YOU, WERE THERE ANY SCRATCHES OR SOMETHING ON THE DEFENDANT? ONE OF THE OFFICERS TESTIFY ABOUT ANY KIND OF SCRATCHES ON HIM? YES. THERE WAS A, ON THE ONE KNUCKLE, THERE WAS A CUT, AND THERE WAS, ALSO, ABRASIONS ON A KNEE, I BELIEVE, AND, ALSO, A SCRATCH ON THE FACE. OF WHAT KIND OF SEVERITY IS UNKNOWN IN THE RECORD. AND THEN HIS NIECE TESTIFIED. WAS IT HIS NIECE? YES. THE NIECE TESTIFIED THAT HE HAD COME HOME AT 4:45 IN THE MORNING, SO THERE WAS AN HOUR AND 45 MINUTES WHERE HE DID NOT HAVE AN ALIBI. HE DID SAY THAT HE WAS SO DRUNK THAT HE COULDN'T DO ANYTHING AND HAD GONE INTO THE POOL TO SOBER UP. HE HAD JUMPED IN THE SWIMMING POOL WHERE THEY LIVED, BEFORE HE CAME INTO THE HOUSE. AND THE NIECE DESCRIBED HIM IN RATHER UNUSUAL, IN A RATHER UNUSUAL CONDITION. YES. HE WAS OBVIOUSLY INTOXICATED. HE DID HAVE A PREEXISTING WOUND TO HIS OTHER FINGER THAT SHOULD HAD BELIEVED HAD BEGUN TO BLEED AND WAS BLEEDING ON TO HIS SHORTS. HE WAS, ALSO, WET. CORRECT? YES. SOAKING WET. YES.

3 WAS THERE DNA? NO. THERE WAS DNA TESTING DONE, BUT THERE WAS NO EVIDENCE PRESENTED FROM IT. THE FIRST ISSUE I WOULD LIKE TO RAISE IS THIS MATTER ABOUT THE OFFER, THE PLEA OFFER, WHEN THE PENALTY PHASE JURY, IN THE PENALTY PHASE, WHEN THE JURY WAS OUT TO DECIDE PENALTY, THE PROSECUTOR, FOR REASONS THAT ARE UNKNOWN ON THE RECORD, OFFERED TO THIS DEFENDANT IF HE WOULD PLEAD GUILTY TO THE CHARGE AND WAIVE AN APPEAL, THEY WOULD GIVE HIM A LIFE SENTENCE. IT IS IMPORTANT. WHAT STATE DID THIS HAPPEN? WAS IT AFTER THE VERDICT HAD COME IN OR BEFORE? IT OOH IT WAS AFTER THE VERDICT CAME IN --. IT WAS AFTER THE VERDICT CAME IN, JUSTICE SHAW, AND AFTER THE PENALTY PHASE AND EVIDENCE. BUT THE JURY HAD DELIBERATED AT THAT POINT. YES. THEY WERE DELIBERATING PENALTY. A VERY, VERY UNUSUAL SET OF CIRCUMSTANCES THAT I DON'T THINK YOU WILL SEE VERY OFTEN, BUT THE STATE, FOR UNKNOWN REASONS, ARTICULATED THIS OFFER TO ATTORNEY IRWIN. I THINK, FROM THE RECORD, ATTORNEY IRWIN WAS NOT THE LEAD COUNSEL. IT WAS ATTORNEY FAMIA. ATTORNEY IRWIN EXPLAINED TO ATTORNEY FAMIA WHAT THE STATE THIS OFFERED, AND IN THE RECORD THAT WAS MADE ON THIS, ATTORNEY FAMIA SAID, WELL, THE CONDITION ABOUT PLEADING THE CHARGES, THAT CAN'T BE TRUE, BECAUSE HE HAS ALREADY BEEN FOUND GUILTY, SO HOW CAN WE DO THAT? IN WHAT CONTEXT WAS A RECORD MADE ON THIS, BECAUSE ORDINARILY WE SEE THIS IN A COLLATERAL PROCEEDING. THAT IS THAT WE DON'T -- WE ARE NOT AWARE OF THAT, UNTIL AFTER THINGS ARE ALL OVER WITH, AND THEN THERE IS A CLAIM THAT COUNSEL EITHER DIDN'T CONVEY OR DIDN'T ADEQUATELY CONVEY OR WHATEVER. HOW WAS -- HOW DO WE KNOW ANYTHING ABOUT THIS? IT IS -- I FELT COMPELLED TO RAISE THIS, BECAUSE IT WAS ON THE FACE OF THE RECORD. IT OCCURRED DURING THE PENALTY PHASE. THAT THIS HAD HAPPENED. AND STATEMENTS ARE MADE BY THE LAWYERS, IN OPEN COURT. IS THAT WHAT IS GOING ON? YES, JUSTICE ANSTEAD. EXACTLY. SO IS THE DECISION, IN ESSENCE, BEING MADE IN OPEN COURT, YOU KNOW, WHILE THE JURY IS OUT ON THE PENALTY PHASE? YES. THIS WHOLE COLLOQUI BETWEEN THE ATTORNEYS AND THE JUDGE WAS OFF RECORD. THAT INITIAL OFFER THE STATE MADE TO ATTORNEY IRWIN WAS NOT ON THE RECORD. WHEN HE RECEIVED THAT OFFER, HE WENT TO COCOUNSEL. THEY DISCUSSED IT. DISCUSSED IT WITH MR. MANSFIELD. AND THEN -- WHAT ABOUT THE DISCUSSION WITH MR. MANSFIELD -- WITH MR. MANSFELD? AS I UNDERSTAND YOUR ARGUMENT, YOU ARE SAYING THAT HE DIDN'T ADEQUATELY CONVEY OR ADEQUATELY CONVEY THE OFFER THAT WAS MADE BY THE STATE. IS THAT CORRECT? THAT IS CORRECT, BECAUSE ATTORNEY FLAMIA DID NOT CONVEY THE PLEADING TO THE CHARGE, BECAUSE SHE FELT IT WAS A LEGAL IMPOSSIBILITY. IS IT?

4 I DON'T THINK SO. DO WE HAVE ANY CASE? SINCE YOU ARE ASKING US TO DO THIS ON A DIRECT APPEAL, DON'T WE NEED TO KNOW, AS A MATTER OF LAW, THAT IT IS NOT LEGALLY IMPOSSIBLE, BEFORE WE CAN MAKE THE DECISION? I BELIEVE, BECAUSE IT IS A DEATH PENALTY CASE AND THE STATE HAS AN UNIQUE FUNCTION OF DECIDING WHO THEY WILL SEEK THE PENALTY ON -- HAVE ANY CASE LAW ON THAT? NO. AND WE DON'T, DO WE KNOW ON THIS RECORD, WHETHER YOUR CLIENT WOULD HAVE ACCEPTED THE OFFER? ATTORNEY FLAMIA SAID THAT HE WOULD ACCEPT IT BUT FOR THE CONDITION OF PLEADING TO THE CHARGE, BECAUSE THAT WASN'T LEGALLY POSSIBLE. WELL, ISN'T THIS SOMETHING, THEN, THAT PROBABLY NEEDS TO BE DEVELOPED IN A COLLATERAL PROCEEDING? BECAUSE WE, REALLY, NEED TO KNOW MORE, IN TERMS OF WHAT THE STATE HAD IN MIND, AND WHETHER IT WAS THE LAWYER, REALLY, MAKING THE DECISION TO SAY YOU CAN'T REALLY DO THAT, BECAUSE IT IS LEGALLY -- BECAUSE IT ALL SOUNDS LIKE A DEAL THAT HE COULDN'T REFUSE. THAT IS, MY GOSH, AFTER THE -- BUT THERE IS REALLY NO -- THERE WAS NO PROCEEDING HERE TO CLEAR UP ANY UNDERSTANDINGS OR MISUNDERSTANDING. IS THAT RIGHT? I AGREE, AND I WRESTLED WITH THIS QUITE A BIT, WHETHER TO RAISE IT, BUT I FELT, ON THE FACE OF THE RECORD, I FELT COMPELLED TO DO SO. BUT EVEN AT THIS STAGE, YOU HAVE NOT BEEN ABLE TO FIND ANY CASE LAW THAT WOULD RUN CONTRARY TO WHAT THE LAWYER BELIEVED AT TRIAL, THAT THIS PLEA WAS NO GOOD, HAVE YOU? NO, SIR. AND I -- BUT HOW WOULD YOU MEET THE FIRST PRONG OF STRICKLAND, THAT HIS CONDUCT FELL BELOW A CERTAIN STANDARD? WELL, THE PROSECUTOR REPRESENTED, AT THIS STAGE OF THE PROCEEDING, THAT THEY HAD DONE THIS BEFORE, THAT THIS WAS A PRACTICE THEY HAD DONE BEFORE, SO I SAY -- IT MIGHT HAVE BEEN ILLEGAL. THE FACT THAT IT HAS BEEN DONE BEFORE, YOU KNOW, I AGREE IS A PRACTICAL MATTER. I WOULD HAVE JUMPED AT IT, HAD I BEEN A TRIAL LAWYER, BUT HOW CAN YOU SAY THIS LAWYER ACTED BELOW A CERTAIN STANDARD, WHEN CASE LAW WOULD SEEM TO SUPPORT HIS UNDERSTANDING THAT THIS WAS AN ILLEGAL PLEA? WELL, JUSTICE SHAW, THERE IS NO CASE LAW THAT SAYS YOU CAN'T DO IT, AND THERE IS NO CASE LAW THAT SAYS YOU CAN, SO, THEN, YOU FALL BACK ON WHAT IS THE SCHEME, WHAT IS THE DEATH PENALTY SCHEME, AND IT IS AN UNIQUE FUNCTION OF THE STATE, SO IF THE STATE WANTS TO SAY, WELL, YOU PLEAD TO NAIL DOWN THIS CONVICTION AND WAIVE APPEAL, WE WILL NOT SEEK THE DEATH SENTENCE. YOU WANTED AN ADMISSION OF GUILT, AND THE STATE, ALSO, WANTED A WAIVER OF APPEAL. IS THAT CORRECT?

5 YES, JUSTICE ANSTEAD. EXACTLY. DOES THIS RECORD TELL US WHETHER OR NOT THE DEFENDANT WAS WILLING TO ADMIT GUILT AND TO WAIVE APPEAL? ON THE ISSUE OF ADMITTING GUILT, WE DO NOT KNOW. HOW ABOUT WAIVING APPEAL? YES, WE DO KNOW THAT. BECAUSE THEY AGREED TO THAT CONDITION. AND IF IT IS A TRIAL, HE WOULDN'T BE -- WOULD HE OR WOULDN'T HE BE ABLE TO WAIVE THE APPEAL? I MEAN, ISN'T THERE SOME CASE LAW TO THE EFFECT THAT THE DEFENDANT CAN'T WAIVE HIS APPEAL, ONCE HE HAS GONE THROUGH THE TRIAL PROCESS? THERE HIS CASE LAW, WHEN THE DEATH SENTENCE OCCURS. THAT WAS -- I FORGET THE NAME OF THE CASE, THAT YOU CAN NOT WAIVE YOUR DIRECT APPEAL, IF YOU ARE FOUND THE DEATH SENTENCE, BUT I THINK WITH A LIFE SENTENCE, YOU CAN WAIVE YOUR APPEAL. WELL, THE JUDGE, ALSO INDICATED THAT THE JUDGE WAS NOT VERY INTERESTED IN -- HAD CONCERNS, REALLY, IN SEVERAL WAYS, ABOUT THAT. WELL, JUSTICE WELLS, MY RESPONSE TO THAT IS THAT THE RECORD, REALLY, CAN PLAY EITHER WAY ON. THAT IT WASN'T PERSUASIVE, ONE WAY OR ANOTHER, AND FRANKLY IT DIDN'T MATTER WHAT THE JUDGE FELT. BECAUSE OF THIS UNIQUENESS OF A DEATH CASE. THIS IS NOT A DIFFERENT CRIME WHERE THE SENTENCE IS GOING TO RANGE. THIS IS WLORBLT HE IS GOING TO BE SENTENCED TO DEATH -- THIS IS WHETHER OR NOT HE IS GOING TO BE SENTENCED TO DEATH, AND I CONTEND THAT THAT THE STATE -- I CONTEND THAT THE STATE IS NOT A PART OF THAT DECISION, ONE WAY OR THE OTHER, ONCE IT HAS BEEN WAIVED. IS IT CLEAR THAT THE STATE WAS PREPARED TO DO THAT IN THIS CASE SOME. YES. THEY OFFERED IT BEFORE TRIAL. DID THE PROSECUTOR MAKE THAT STATEMENT ON THE RECORD? MORE THAN ONCE. THEY OFFERED -- I MEAN, I AM TALKING ABOUT, NOW, AFTER THE GUILTY VERDICT IS IN, WAS IT CLEAR THAT, AT THAT POINT -- IT IS UNEQUIVOCAL -- PREPARED TO, IN EXCHANGE FOR ADMISSION OF GUILT AND A WAIVER OF APPEAL. YES. IT IS UNEQUIVOCAL. HOW WAS THAT OFFER -- IT SEEMS THAT I READ SOMEPLACE THAT THE OFFER WAS WITHDRAWN. IN WHAT CONTEXT? THE PROSECUTOR WITHDREW IT, AFTER THEY STARTED TO GET INTO AN BACK AND FORTH IN FRONT OF THE JUDGE, AND I THINK THE PASSIONS WERE HEATED ABOUT THIS, ARGUING-. ABOUT WHETHER OR NOT HE COULD PLEAD AFTER BEING FOUND GUILTY. EXACTLY. AT THAT POINT, THE PROSECUTOR SAID SWITCH WRONG. AT THAT POINT SWITCH

6 WRONG. HAVING SAID THAT, I WOULD LIKE TO MOVE ON TO HEINOUS, ATROCIOUS AND CRUEL. AT THIS POINT, I HAVE BEEN BEFORE THIS COURT TALKING ABOUT THE KIND OF EVIDENCE YOU NEED -- BEFORE YOU DO THAT, LET ME COME BACK JUST FOR A MINUTE, IN TERMS OF THE SBIRINGATION. I UNDERSTOOD YOU -- OF THE INTERROGATION. I UNDERSTOOD YOU, BEFORE, TO SAY THAT, REALLY, THE ONLY PREJUDICE THAT WOULD HAVE BEEN ESTABLISHED BY THE ADMISSION OF THE STATEMENT THAT YOUR CLIENT MADE TO THE POLICE WERE HIS BEING WITH THE WOMAN AFTER THEY LEFT THE BAR THAT NIGHT. IS THAT -- THAT'S CORRECT, FOR WHAT WE KNOW. NOT SAYING THAT THAT IS NOT A LOT OF PREJUDICE OR WHATEVER, THAT WE HAVE TO -- BUT THAT IS, REALLY, WHAT -- YES. BECAUSE AT THIS POINT WE DON'T KNOW IF THE GENTLEMAN, MR. JOHNS, WAS -- THAT WAS STATE ACTION OR NOT. WE DON'T KNOW THAT, FROM THIS RECORD. BUT YOUR CLIENT DID NOT INCRIMINATE HIMSELF OTHERWISE. NO, SIR. NOT THAT I AM AWARE OF. AND DID THE MOTION TO SUPPRESS, BEFORE THE TRIAL COURT, SPECIFICALLY STATE THAT THE CONFESSION SHOULD BE OR THE STATEMENT SHOULD BE SUPPRESSED BECAUSE HIS MILES AN HOUR AND A -- HIS MIRANDA WARNINGS HAD NOT BEEN TIMELY GIVEN? THEY WERE NOT GIVEN AT ALL, FROM WHAT I UNDERSTAND. I THOUGHT THEY WERE GIVEN AFTER HE FINALLY -- THEY COULD HAVE BEEN. I DON'T RECALL. BUT THEY WEREN'T GIVEN -- AT ANY TIME WHILE HE WAS BEING QUESTIONED. AND THAT WAS THE BASIS FOR THE SUPPRESSION. YES. THAT HE WAS IN CUSTODY. SO WAS THERE A DISPUTE AS TO WHETHER HE WAS IN CUSTODY OR NOT? NO. I THINK THAT THE STATE ADMITTED THAT, MINUTES INTO THE INTERROGATION, THAT, REGARDLESS OF WHAT HAPPENED, HE WASN'T LEAVING, BECAUSE OF THINGS THEY HAD DEVELOPED WHILE HE WAS SEATED IN THAT ROOM. THEY HAD THE BEEPER BEFORE THEY, WHEN THEY ASKED HIM TO COME DOWN TO THE STATION HOUSE. THAT'S CORRECT. AND THERE WAS AN EYEWITNESS THAT SAW THEM TOGETHER, WHERE THAT BEEPER WAS FOUND, AND THE STORY ON THAT WAS THAT HE HAD -- AND SAW SOMEONE URINATE AGAINST THE WALL, AND HIS STORY WAS IT CAME OFF HIS BELT WHILE HE WAS URINATING AGAINST THE WALL AT THE WINN-DIXIE. THAT IS THE EXPLANATION FOR WHY THE BEEPER WAS THERE. NOW, I AM STILL KNAWING ON THIS FIRST POINT. IT IS YOUR ULTIMATE POSITION, THEN, THAT THIS REALLY WASN'T A PLEA AGREEMENT DEAL. THIS WAS AN ARRANGEMENT THAT WAS ATTEMPTED TO BE WORKED OUT BETWEEN THE STATE. THE STATE WASN'T GOING TO GO

7 FORWARD WITH SEEKING ANY FURTHER, THE DEATH PENALTY, WHICH TOOK AWAY ANY DISCRETION FROM THE JUDGE, AS TO WHETHER THE JUDGE WAS GOING TO IMPOSE THE DEATH PENALTY. IS THAT THE BOTTOM LINE OF IT? I THINK IT IS INEFFECTIVE ASSISTANCE PER SE, IF THE STATE SAYS ANYTHING, THAT THEY WILL DO, TO TAKE AWAY THE DEATH PENALTY, AND YOU SAY OH, I CAN'T DO THAT. I THINK THAT IS INEFFECTIVE ON ITS FACE. NO HARM, NO FOUL. WHO IS GOING TO ARGUE, IF THE PERSON -- THAT IS THE THRUST OF THIS ARGUMENT. WHAT DIFFERENCE DOES IT MAKE, IF THE STATE IS SAYING -- I THINK I UNDERSTAND. YEAH. THANK YOU. ON THE-OI HEINOUS, ATROCIOUS AND -- ON HEINOUS, ATROCIOUS AND CRUEL, ON TWO OTHER OCCASIONS I TALKED ABOUT THE FACT THAT YOU HAVE TO PROVE, BEYOND THE SECLUSION OF EVERY REASONABLE DOUBT THAT THIS VICTIM SUFFERED IN SOME WAY, IN THE COURSE OF THEIR DEATH, AND THE CASE LAW FROM HERE IS VERY CLEAR ON THAT. ISN'T THE MEDICAL EXAMINER'S TESTIMONY PROVIDING A BASIS FOR THAT FIND SOMETHING. I THINK THAT THE WAY THAT THE MEDICAL EXAMINER TESTIFIED COULD HAVE, MAYBE, ISN'T SUFFICIENT. THE ATTORNEY IN THIS CASE, AND THIS DID NOT HAPTHEN MY OTHER CASES, BUT IN THIS PARTICULAR CASE, ASKED, YOU KNOW, WITHIN A DEGREE OF MEDICAL CERTAINTY, WHICH IS THE STANDARD -- WHICH IS THE STANDARD TO PROVE SOMETHING FROM AN EXPERT, CAN I SAY WHETHER THE PERSON WAS CONSCIOUS DURING THIS? CONSCIOUS DURING WHAT? DURING THE ATTACK. THERE WAS AN INITIAL BLUNT FORCE TRAUMA TO THE NECK THAT WAS, ALSO, THE CAUSE OF DEATH. NOW, THE GRUESOME THINGS THAT OCCURRED IN THIS CRIME WERE EVERYONE CONCEDES SHE WAS UNCONSCIOUS AND MAYBE EVEN BRAIN DEAD WHEN THEY OCCURRED. YEAH, BUT I THOUGHT THERE WAS TESTIMONY THAT, DURING THE TIME BEFORE THE OTHER ADDITIONAL MUTILATING ACTS OCCURRED, THAT THERE WAS TESTIMONY THAT SHE WOULD HAVE BEEN CONSCIOUS FOR SEVERAL MINUTES. IS THAT -- EITHER IT WAS IN -- I THOUGHT THE JUDGE SPECIFICALLY REFERENCED THAT, IN HIS SENTENCING ORDER. THE -- DURING THE STRANGULATION, THERE WAS SOME TESTIMONY THAT SHE WAS CONSCIOUS, WASN'T THERE? THE MEDICAL EXAMINER SAID COULD HAVE BEEN. AND THEY ASKED, WELL, TO YOU KNOW, WITHIN A DEGREE OF MEDICAL CERTAINTY? NO, I DON'T. YOU DON'T HAVE TO PROVE IT BEYOND A REASONABLE DOUBT, DO YOU? YES, YOU DO. THAT IS THE STANDARD. I AM SORRY. THE MEDICAL EXAMINER'S TESTIMONY HAS TO BE THEY WERE CONSCIOUS BEYOND A REASONABLE DOUBT? YES. YES. ABSOLUTELY. I THINK JUSTICE WELLS, IN URBAN, WOULD SAY YOU WOULD NOT, JUST FACT THAT THEY SAY THEY COULD HAVE SUFFERED, IS SUFFICIENT. I SAY THAT IS NOT SUFFICIENT. YOU HAVE TO -- AND THE WAY THIS IS PROVEN, MANY TIMES, IS IN THE CONFESSION. THE OTHER EYEWITNESSES, AND ALL KINDS OF THINGS LIKE THAT, BUT IN THIS PARTICULAR

8 CASE, WHERE YOU DON'T HAVE ANY OF THAT -- I THOUGHT THE MEDICAL EXAMINER WAS MUCH MORE EXPLICIT, IN TERMS OF SAYING THIS WAS A RATHER LENGTHY PERIOD OF TIME. IT WAS MORE THAN JUST A COUPLE OF MINUTES. AND THAT THE VICTIM, BY THE EVIDENCE THAT SHE HAD, THE VICTIM WOULD HAVE BEEN CONSCIOUS AND AWARE OF WHAT WAS HAPPENING TO HER AT THAT TIME. IN OTHER WORDS I THOUGHT THE MEDICAL EXAMINER WAS PRETTY EXPLICIT, NOTWITHSTANDING THE QUESTIONS THAT YOU HAVE THERE. I MEAN WE ARE GOING TO HAVE TO EXAMINE THAT, BUT WASN'T SHE PRETTY -- IT WAS A WOMAN MEDICAL EXAMINER, BY THE WAY? YES. DR. MARTIN. WASN'T SHE PRETTY EXPLICIT IN SAYING, IN HER OPINION, THAT IT WAS AN APPRECIABLE PERIOD OF TIME THAT THIS WOMAN WAS CONSCIOUS AND AWARE OF WHAT WAS HAPPENING TO HER? TELL ME WHAT SHE SAID. NO. NO. WHAT SHE DID SAY WAS THAT THE CAUSE --, BECAUSE OF THE HEMORRHAGING IN THE EYE, DEATH WAS NOT IMMEDIATE. THE CONSCIOUSNESS ISSUE IS SOMETHING SHE COULD NOT SPEAK TO. SHE HAD A BLOOD ALCOHOL LEVEL OF BETWEEN.14 RAN.18. SO SHE -- DID -- SHE HAD A BLOOD ALCOHOL LEVEL OF BETWEEN.14 AND.18. DID SHE SAY ANYWHERE, AS OPPOSED TO IT BEING A POSSIBILITY, DID SHE, AT ANY POINT, SAY, IN MY OPINION, THE VICTIM WOULD HAVE BEEN CONSCIOUS AND AWARE OF THE PAIN AND WHAT WAS BEING INFLICTED ON HER FOR AN APPRECIABLE PERIOD OF TIME? DID SHE EVER EXPRESS THAT OPINION? I THINK, TO A LEADING QUESTION, COULD THIS HAVE HAPPENED, SHE SAID YES. OKAY. BUT ONLY TO LEADING QUESTION COULD IT HAVE HAPPENED. RIGHT. NOT EXPRESSING HER OWN OPINION THAT IT DID. THAT'S CORRECT. WHAT SHE DID SAY WAS THAT THE DEATH WAS NOT IMMEDIATE, BECAUSE OF THE HEMORRHAGING IN THE EYES. BUT AS FAR AS --. THE CONSCIOUSNESS ISSUE, AS FAR AS IT IS CONCERNED, SHE DIDN'T SAY THAT IT WAS HER OPINION THAT THE VICTIM WAS CONSCIOUS AND AWARE OF THE SUFFERING FOR AN APPRECIABLE PERIOD OF TIME. SHE DID NOT SAY THAT? THAT'S CORRECT. BUT THE JUDGE FOUND, ON PAGE SIX, IT SAYS I THINK SHE WAS VERY CONSCIOUS FOR A LONG TIME. WELL, YOU KNOW, I THINK THAT THERE WAS TESTIMONY AT TRIAL THAT, IN PENALTY PHASE, AND I THINK THE PENALTY PHASE TESTIMONY GOT A LITTLE MORE EMBELLISHED, AND -- BUT THIS IS THE TESTIMONY THAT THE JUDGE IS REPEATING ON PAGE 4 AND 5 OF THE SENTENCING ORDER OF DR. MARTIN. WELL, TALKING ABOUT PENALTY PHASE, ARE WE NOT?

9 YES. SO WHAT DO YOU MEAN IT GOT A LITTLE MORE EMBELLISHED? WELL, WHEN THE STATE ASKED THAT KIND OF QUESTION, YEAH, SHE COULD HAVE SUFFERED FOR QUITE A TIME, BUT ON CROSS, ASKED DO YOU KNOW, WITHIN A DEGREE OF MEDICAL CERTAINTY, WHETHER THAT HAPPENED OR NOT, NO, I DON'T, AND THAT IS THE CRUX OF THIS ISSUE. BUT AREN'T YOU TALKING ABOUT A DISTINCTION BETWEEN EXPERT TESTIMONY FOR A SUFFICIENT PERIOD OF TIME, AS OPPOSED TO EXPERIENCING THE PAIN AND BEING UNABLE TO GIVE YOU THE EXACT PERIOD OF TIME? ISN'T THAT THE DISTINCTION YOU ARE TRYING TO DRAW? BECAUSE DIDN'T THIS -- IT SEEMS, ON A FAIR READING, THAT THE EXPERT WAS SUGGESTING SUFFERING AND PAIN FOR A PERIOD OF TIME BUT COULD NOT PINPOINT THAT PERIOD OF TIME. I THINK YOU HAVE CAPITALIZED THE ISSUE EXACTLY. THAT IS EXACTLY RIGHT. SO TO ACCEPT YOUR THEORY, WE WOULD, THEN, NEED EXPERT TESTIMONY THAT WOULD ESTABLISH, WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, THE EXACT PERIOD OF TIME, AS CONDITION PRECEDENT. THAT'S CORRECT, AND ONE OF THOSE THINGS, AS YOU KNOW, IS THERE IS DEFENSIVE WOUNDS OR SOMETHING. THERE WERE NO DEFENSIVE WOUNDS IN THIS CASE. I THOUGHT -- THERE WEREN'T ANY DEFENSIVE? I THOUGHT THERE WAS. THERE WAS ONE. DR. MARTIN, THE JUDGE REPORTED DR. MARTIN AS SAYING THE EVIDENCE OF INJURES UNDER HER CHIN SHOWED THAT SHE WAS TRYING TO WARD OFF THE ATTACK. PERHAPS THAT WAS THE ONLY DEFENSIVE TYPE THING SHE COULD DO, AND THE POSITION THAT I THINK SHE WAS IN. ALSO THE INJURES THE HEMORRHAGE IN THE SCALP, THE BACK OF THE HEAD, IMPLIES SHE WAS GOING FORWARD AND BACKWARDS, AND PERHAPS HITTING HER HEAD ON THE GROUND, IN AN ATTEMPT TO TRY TO BREATHE. I MEAN HAD, THIS IS WHAT THE JUDGE PUT IN HIS ORDER. WELL, YOU KNOW, AS I SAID, THESE -- IT SORT OF WAS -- THE FEELING I GOT FROM THE TESTIMONY WAS HOW CAN WE ESTABLISH THAT THE VICTIM DID SUFFER? HOW COULD WE DO IT? WHAT POSSIBLE WAY COULD THIS HAVE HAPPENED? AND THE ME WILL SAY, WELL, IT COULD HAVE HAPPENED THIS WAY, AND WHAT CONCERNS ME WAS THE FACT THE STATE, I BELIEVE, DIDN'T EVEN CHARGE SEXUAL BATTERY IN THIS CASE, AND TO ME, IT IS STUFF THAT KIND OF WAS EVOLVING, AS THE TRIAL WAS GOING, BECAUSE THEY SAW THE WEAKNESSES OF THIS, AND I THINK YOU HAVE TO LOOK AT IT IN THAT CONTEXT, THAT YOU KNOW, IF THE ME SAID TO THE DEFENSE COUNSEL -- IF THE M. E. SAID, TO THE DEFENSE COUNSEL, THIS PERSON WAS CONSCIOUS AND SUFFERING BECAUSE -- I WOULDN'T BE ARGUING THAT POINT -- BUT THAT IS NOT WHAT HAPPENED. ORDINARILY WE SEE, AND THE CASE LAW HAS DEVELOPED, IN SOME INSTANCES, ALMOST A BRIGHT-LINE TEST, BECAUSE YOU HAVE A MEDICAL EXAMINER SAYING THAT THE VICTIM WAS KILLED INSTANTLY BY A BULLET TO THE HEART OR A BULLET TO THE BRAIN OR SOMETHING. BUT AS YOU ARE WELL AWARE, WE HAVE CASE LAW THAT TALKS ABOUT CHOKING OR WHATEVER, THAT THAT IS IN A DIFFERENT CATEGORY, AND WE DON'T HAVE A MEDICAL EXAMINER HERE THAT SAID, YES, SHE WAS CHOKED OR BEAT OR WHATEVER AND SUFFERED AN INSTANTANEOUS DEATH, BUT THIS IS A DIFFERENT SITUATION, AND WE HAVE SEEMED TO HAVE PLACED THESE KINDS OF DEATH, BY THIS METHOD, INTO A CATEGORY, GRANTED THAT THERE HAS TO BE AN

10 EVIDENTIARY BASIS AND THE TESTIMONY OF SOMEBODY, BUT THE BOTTOM LINE HERE IS YOU ARE SAYING THAT THE TESTIMONY OF THE MEDICAL EXAMINER WON'T SUPPORT THAT, AND WE JUST HAVE TO LOOK AND EXAMINE THAT. THAT'S CORRECT. AND I WOULD CITE RHODES AND DI ANGELO FOR THAT PROPOSITION. THOSE BOTH -- THE STATE QUOTES, IN THEIR BRIEF, EXTENSIVELY, FROM DR. MARTIN, WHO TESTIFIED, ACCORDING TO THIS QUOTE, YES, I THINK SHE WAS VERY CONSCIOUS FOR A LONG TIME. THE ULTIMATELY, WHEN THE AIR WAS LOW ENOUGH TO WHERE THE BRAIN SUFFERED THE LACK OF OXYGEN, THEN SHE BEGAN TO BE UNCONSCIOUS, BUT SHE WAS CONSCIOUS, AND THERE WAS EVIDENCE OF A STRUGGLE. ALSO THE FACT THAT EXTENSIVE HEMORRHAGE IN HER EYES. IS THAT TESTIMONY NOT IN THE RECORD? IT IS. BUT THEN, WHEN, UNDER CROSS, AND ASKED, WELL, CAN YOU SAY THESE THINGS BEYOND A DEGREE OF MEDICAL CERTAINTY, WHICH IS TO SAY IT IS, YES, THAT IS SO, NO DOUBT, SAID, NO, I CAN'T. WELL THAT, IS FOR THE JURY TO RESOLVE. IS IT NOT? THAT IS IF WE HAVE A WITNESS WHO WAS SAYING, LOOK, FROM ALL MY EXAMINATIONS, I AM OF THE OPINION THAT SHE WAS CONSCIOUS FOR AN APPRECIABLE PERIOD OF TIME WHILE THIS WAS GOING ON, AND WAS AWARE OF WHAT WAS HAPPENING IT HER OR WHATEVER, AND THEN LATER SOMEBODY SAYS, WELL, CAN YOU BE ABSOLUTELY CERTAIN THAT THAT IS WHAT HAPPENED HERE? AND THE WITNESS SAYS, WELL, NO, I CAN'T BE ABSOLUTE CERTAIN. AND HOW ABOUT ABSOLUTE MEDICAL CERTAINTY? WELL, NO. YOU KNOW. THAT IS FOR A JURY TO RESOLVE, ISN'T IT? I THINK THAT IS WHAT YOU HAVE TO LOOK AT AS TO WHETHER THIS IS SPECULATIVE EVIDENCE OR IT IS SOUND -- IS THERE A MOTION TO STRIKE IT? IN THE CASE WHERE WE HAVE HAD SAID THAT IS NOT SUFFICIENT EVIDENCE, ONCE IT HAS BEEN ESTABLISHED ON DIRECT EXAMINATION, IS THERE? THERE IS NOT A CASE? YES. I THINK IT IS IF YOU LOOK AT THE URBAN CASE AND YOU LOOK AT THE DI ANGELO CASE. DI ANGELO IS DISTINCTIVE IN ONE RESPECT. THE TRIAL COURT, IN DI ANGELO, REJECTED THE AFFIRMATIVE DEFENSE AND THEN THIS STATE DID NOT OBTO THE TRIAL COURT DETERMINATION ON VERY SIMILAR TESTIMONY THAT WE HAVE IN THIS CASE, SO I THINK IT IS DISTINGUISHABLE IN THAT RESPECT. IT IS, UP TO THE CALL OF A FACT FINER, WHICH THE -- FACT FINDER, WHICH THE TRIAL JUDGE FINDS, IN AGGRAVATING MITIGATION, ISN'T THERE? YES, SIR. ON -- COULD YOU -- DID YOU SAY THAT THE STATE DID NOT CHARGE A SEXUAL BATTERY. YOU ARE NOT CHALLENGING THE AGGRAVATING FACTOR FOUND BY THE TRIAL COURT THAT THE CAPITAL FELONY WAS COMMITTED WHILE THE DEFENDANT WAS ENGAGED IN THE COMMISSION OR ATTEMPT TO COMMIT SEXUAL BATTERY? I DID NOT RAISE. THAT I THOUGHT THE CASE LAW WAS PRETTY CLEAR THAT THAT COULD BE DONE. I AM NOT SURE. WHAT IS THE NIFCK THAT THE STATE DIDN'T SEPARATELY CHARGE IT?

11 WELL, BECAUSE -- DIDN'T SIGNIFICANTLY -- WHAT IS THE SIGNIFICANCE THAT THE STATE DIDN'T SEPARATELY CHARGE IT? WELL, BECAUSE IT GOES BETWEEN THE PROSECUTOR AND -- IT WASN'T AS TO THE INTEGRITY OF THE DEATH SENTENCE THAT THEY DIDN'T CHARGE SEXUAL BATTERY SEPARATELY. YOU ARE NOT MAKING THAT AS A SEPARATE POINT. JUST ONE OTHER QUESTION. WAS HE CONVICTED OF FELONY MURDER OR PREMEDITATED -- PREMEDITATED MURDER OR DID THEY CHARGE BOTH? THEY CHARGED BOTH. YOU ARE NOT CHALLENGING THAT. NO. LET ME SEE IF I MAKE SURE I UNDERSTAND. WHAT YOU ARE SAYING IS, BECAUSE THE MEDICAL EXAMINER COULD NOT SAY, WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, HOW LONG SHE SUFFERED, EVEN THOUGH HE SAID THAT SHE DID, IN FACT, SUFFER, BECAUSE THERE WERE DEFENSIVE WOUNDS AND THERE WAS STRANGULATION AND THAT SHE WAS TRYING TO BREATHE, THAT BECAUSE HE COULDN'T SAY HOW LONG THAT TOOK PLACE, THAT WE CAN NOT FIND HEINOUS, ATROCIOUS AND CRUEL? I DIDN'T IT DOESN'T RISE TO BEYOND A REASONABLE DOUBT STANDARD, BECAUSE I THINK THAT IS THE STANDARD, AND SO, YES, THAT IS MY ARGUMENT, PRECISELY. ON THE PROPORTIONALITY REVIEW THAT THIS COURT MUST DO, ON EVERY CASE, AND THE -- IF YOU STRIKE HACK, YOU ARE LEFT WITH THE FACT THAT THIS WAS A FELONY MURDER. AND WHEN YOU STRIKE THAT AGAINST A MIDMYTHGATION IN THIS CASE -- STRIKE THAT AGAINST THE MITIGATION IN THIS CASE, I THINK THAT DEATH IS NOT WARRANTED, AND I THINK THAT, BECAUSE THIS DEFENDANT WAS AN ALCOHOLIC. IN FACT HE HAD JUST BEEN OUT OF A CLINIC FOR ALCOHOLISM, WHERE HE HAD A NEAR FATAL BLOOD ALCOHOL LEVEL, AT THE TIME HE HAD ENTERED. THERE WAS TESTIMONY BY EXPERTS THAT HE HAD SUFFERED BRAIN DAMAGE FROM THIS ALCOHOLISM AND FROM HEAD TRAUMA. THIS WAS AN ACT THAT OCCURRED, A FRENZIED ACT THAT OCCURRED DURING AN EPISODE OF EXTREME IMPAIRMENT. THE REASON WHY IT IS NOT BETTER DOCUMENTED ON THIS RECORD IS BECAUSE THIS DEFENDANT HAS NOT ADMITTED TO THIS CRIME. SO IT IS VERY DIFFICULT TO SAY HOW IMPAIRED THIS PERSON WAS, BUT YOU KNOW THAT THE VICTIM WAS -- HAD MORE THAN TWICE THE LEGAL LIMIT. YOU KNOW THIS DEFENDANT WAS OUT DRINKING ALL NIGHT. AND WAS HUNG OVER THE NEXT NIGHT DURING HIS INTERROGATION, FROM THE PREVIOUS ALMOST 24 HOURS LATER, STILL HUNG OVER. YOUR TIME IS RUNNING AND YOU HAVE GOT SOME OTHER ISSUES HERE, ISSUE 7, FOR INSTANCE, THE ADMISSION OF THE KNIFE AND SHEET. WOULD YOU SPEAK TO THAT ISSUE. YES. THE -- I THOUGHT IT WAS PREJUDICIAL, BECAUSE THERE WAS NO EVIDENCE TYING THE KNIFE TO THIS CRIME. NONE. NONE WHATSOEVER. SO TO ME THAT, JUST CONFUSES THE JURY. THAT OH, WE DO HAVE A MURDER WEAPON AND HERE IT IS AND THIS PERSON HAD IT. IT REALLY SHOULD NOT HAVE BEEN INTRODUCED. AND ON THE SECOND THING, THE FINGERPRINT EVIDENCE, WHICH IS THE KNIFE, THE GRIM REAPER IMPRINT ON THE NECK THAT THIS -- NOW, JUST REMEMBER, TWO WEEKS BEFORE THE TRIAL, AND TWO YEARS AFTER THE CRIME, THIS MEDICAL EXAMINER SAYS OH, BY THE WAY, YOU KNOW, THAT IMPRINT ON THE NECK LOOKS LIKE IT COULD HAVE COME FROM A RING THAT WAS ON THE DEFENDANT'S FINGER. NOW --. WHAT ABOUT THE SHEET AND THE KNIFE? THAT IS WHERE WE WERE. YES.

12 DESPITE THE FACT THAT THE KNIFE WAS FOUND, WITH THE GREEN STAMPS THAT WERE SUPPOSEDLY GREEN STAMPS TAKEN AWAY FROM THE VICTIM, AND THE FACT THAT THERE WAS SOME KIND OF BLOCK THAT LOOKED LIKE IT COULD HAVE BEEN MADE BY THE KNIFE, WAS THAT -- AM I MISQUOTING THE EVIDENCE? SLIGHTLY. THE KNIFE WAS FOUND WHERE IT WAS KEPT, IN THE SUITCASE OF HIS NEPHEW OR SOMETHING LIKE THAT. THE SHEAF WAS FOUND IN THE DRAWER WITH THE FOOD STAMPS. AND THESE FOOD STAMPS SUPPOSEDLY CAME FROM THE VICTIM? THAT'S CORRECT. THAT WAS THE STATE'S THEORY, AND THEY VERY WELL COULD HAVE. BUT THE -- THERE WAS NO -- THE SHEAF WAS FOUND THEIR, BUT THE KNIFE WAS FOUND WHERE IT ALWAYS HAD BEEN, IN THE -- WAS THERE SOME TESTIMONY RELATIVE TO THE KNIFE MAKING SOME KIND OF MARK ON THE VICTIM? THAT COULD -- WELL, YES, DR. MARTIN SAID THAT THAT PATTERN OF THE KNIFE HANDLE COULD HAVE MADE THIS ABERRATION ON THE NECK. THAT IS CORRECT. COULD HAVE. YES. BUT I THINK THAT THE PROBLEM WITH THE GRIM REAPER RING AND THE IMPRINT AND THE DISCOVERY VIOLATION, JUDGE PERRY SAID THERE WAS NO DISCOVERY VIOLATION, AND YOU KNOW, IN THE WAINWRIGHT CASE, WHICH IS VERY, VERY SIMILAR, HERE, YOU KNOW, THERE WAS KNOWN DNA EVIDENCE, AND THEY FOUND MORE COMPELLING DNA EVIDENCE THAT MADE IT AN ABSOLUTE CERTAINTY THIS WAS THE PERSON. IN WAYNE WRIGHT -- IN WAINWRIGHT, THE JUDGE FOUND A DISCOVERY VIOLATION BUT TOOK CORRECTIVE MEASURES. IN THIS CASE, THE JUDGE FOUND THERE WAS NO DISCOVERY VIOLATION, AND THAT WAS IN ERROR, AND THIS IS THE REASON. THE PICTURES WERE NEVER DETAILED IN DISCOVERY, AS GIVEN TO THIS DEFENSE COUNSEL. NUMBER ONE. NUMBER TWO, ALTHOUGH I WILL SAY, IN THE STATE'S DEFENSE, THE PICTURES WERE MADE AVAILABLE 18 MONTHS BEFORE, AT A PREVIOUS DEFENSE COUNSEL, BUT EVEN IF THEY HAD BEEN GIVEN TO THIS COUNSEL, IT IS SORT OF LIKE SAYING HERE IS A GLASS IN EVIDENCE THAT WAS IN THE ROOM, BUT YOU KNOW, NOW THIS GLASS, WE HAVE FOUND, HAS FINGERPRINTS ON IT, AND IT HAS VALUE. IT IS A FINGERPRINT, NOW. IT HAS GREAT VALUE IN THIS CASE, AND WE HAVE DEVELOPED IT THE SECOND DAY OF TRIAL, AND TO SUGGEST THAT THAT IS NOT A DISCOVERY VIOLATION, THE WHOLE REASON WE HAVE DISCOVERY IS SO THAT AN ACCUSED PERSON COULD CONFRONT THE EVIDENCE THAT IS AGAINST THEM. WAS IT DISCUSSED DURING THE DEPOSITION AT ALL OF THE MARKS ON THE NECK? AT WHICH TIME THE, I GUESS, THE SLIDES WERE SHOWN? NO. NO MENTION AT ALL WHAT IS THAT MARK ON THE NECK OR ANYTHING? NO. THE EVIDENCE IS CLEAR THAT THIS WAS A REVELATION BY THE MEDICAL EXAMINER, TWO WEEKS BEFORE TRIAL. AND THAT WAS NOT, THEN, SHARED WITH THE -- NO. IT WAS NOT SHARED WITH THE DEFENSE. SHE ONLY SHARED IT WITH THE STATE, AND IT IS VERY DAMNING EVIDENCE. WHAT WAS COMMUNICATED TO THE DEFENSE, WITHIN -- ONCE THEY FOUND THAT OUT? I

13 THOUGHT THERE WAS SOME -- SOMETHING THAT WAS TOLD TO THE DEFENSE PRIOR TO TRIAL. THERE -- I THINK THEY -- IT WAS THE SECOND DAY OF TRIAL. THEY WALKED IN WITH THE EXHIBIT. I THINK THE FRIDAY BEFORE, THEY SAID, HEY, WE ARE GOING TO HAVE ANOTHER EXHIBIT OF WHATEVER. BUT NOT EXPLAINING WHAT THE MEDICAL EXAMINER NOW HAD ADDITIONAL FINDINGS? YES. I BELIEVE SO. AND SO I THINK YOU HAD TO FIND THAT THIS WAS A DISCOVERY VIOLATION. AND ONCE YOU DO, THEN YOU EVALUATE HOW HARMFUL IT IS. YOU EVALUATE WHAT OPTIONS THE JUDGE HAS. BUT HERE WE DON'T HAVE THATABILITY. BECAUSE HE JUST FLAT-OUT SAID IT IS NOT A DISCOVERY VIOLATION, BECAUSE OF THIS DISCLOSURE OF PICTURES, 18 MONTHS AGO, TO THE OTHER ATTORNEYS. THANK YOU, MR. BURDEN. YOUR TIME HAS EXPIRED. THANK YOU. EXCUSE ME, JUDGE. I JUST THOUGHT -- I WAS GOING TO ASK HIM, WASN'T THERE SOMETHING IN THE RECORD ABOUT THERE BEING A SIMILARITY BETWEEN THE MARKS ON THE NECK AND THE RING AND SOME KIND OF POLICE REPORT? THE POLICE REPORT HAD THE FACT THAT THE KNIFE WAS IN THE DEFENDANT'S -- THE WRING WAS IN THE DEFENDANT'S POSSESSION WHEN HE WAS ARRESTED, ABOUT 12 HOURS OR 16 HOURS AFTER THE CRIME, THAT THIS RING WAS IN HIS POSSESSION AT THAT TIME. THAT IS WHAT THE POLICE REPORT REFERENCE WAS. THE FACT THAT THIS RING MADE THESE MARKS WAS NEVER IN ANY DOCUMENTATION WHATSOEVER. IT WAS A REVELATION OF THE M. E., TWO WEEKS BEFORE TRIAL. THANK YOU. MS. RUSH. MAY IT PLEASE THE COURT. MY NAME IS JUDY TAYLOR RUSH. I AM AN ASSISTANT ATTORNEY GENERAL, RAISING THE ISSUES IN THIS CASE, ONE OF THOSE ISSUES WHETHER THE AGGRAVATOR SHOULD HAVE BEEN FOUND, AND IT SEEMS INCREDIBLE ON THIS RECORD THAT HE COULD MAKE THE CLAIM THAT THERE WAS NOT EVIDENCE THAT THIS WOMAN WAS CONSCIOUS WHILE SHE WAS BEING SAVAGELY BEATEN AND SUFFOCATED BY THE DEFENDANT IN THIS CASE. HE SAID, HE TELLS THIS COURT, THAT THE PROBLEM IS ON CROSS-EXAMINATION, HE WAS, THE MEDICAL EXAMINER WAS ASKED WHETHER SHE COULD STATE, WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, HOW LONG THIS WOMAN WAS CONSCIOUS. BUT WHEN YOU LOOK AT THE EVIDENCE THAT IS IN THE RECORD, THE QUESTION ASKS WAS WHETHER SHE COULD STATE, WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, HOW MANY SECONDS IT WAS. NOT WHETHER SHE WAS CONSCIOUS OR NOT. BUT HOW MANY SECONDS SHE WAS CONSCIOUS. AND SHE SAID THAT SHE COULDN'T TELL EXACTLY, BUT SHE SAID I CAN TELL YOU THIS. IT WAS LONGER THAN A FEW SECONDS. IT WAS LONGER THAN MINUTES. IT WAS -- SHE WAS VERY CONSCIOUS FOR A VERY LONG TIME. THIS WAS NOT QUICK. AND SHE GOES ON, OF COURSE, TO SAY THAT THERE WERE DEFENSIVE WOUNDS PRESENT. THERE WAS A DEFENSIVE WOUND TO THE FOREARM. THERE WAS DEFENSIVE WOUNDS UNDER THE CHIN. WHAT WAS THE CAUSE OF DEATH? WAS IT THE STRANGULATION? IT WAS STRANGULATION. THAT'S CORRECT. AND SHE WAS -- THE MEDICAL EXAMINER TESTIFIED THAT THIS YOUNG WOMAN WAS SAVAGELY BEATEN AS, BEFORE AND AS SHE WAS BEING STRANGLED, SO THERE WAS THAT ASPECT AS WELL. IS THERE ANY ANOTHER INSTRUMENT BY WHICH SHE WAS BEATEN? SHE WAS BEATEN WITH THE DEFENDANT'S FISTS AND HANDS, AND THE MEDICAL EXAMINER REENACTED WHAT SHE BELIEVED HAPPENED FOR THE JURY, AT THE TRIAL.

14 WELL, WHEN DID THE SEXUAL BATTERY OR ATTEMPTED SEXUAL BATTERY TAKE PLACE? WHAT WAS THE EVIDENCE ON THAT? ACCORDING TO THE CONFESSION THAT MANSFELD GAVE TO MR. -- MANSFIELD GAVE TO MR. JOHNS -- THIS IS THE JAIL HOUSE -- YES. THAT'S CORRECT. ACCORDING TO THAT CONFESSION, HE PERPETRATED THE SEXUAL BATTERY UPON HER, AND AFTERWARDS HE CUT HER, HE DID THE MUTILATIONS AFTER HE HAD HAD SEX WITH HER. THERE WAS EVIDENCE WITH A SEXUAL BATTERY, PHYSICAL EVIDENCE OF A SEXUAL BATTERY? OTHER THAN HIS CONFESSION? CORRECT. AT THE SCENE, THE VICTIM'S UNDERWEAR WERE FOUND RIPPED FROM HER BODY AND LAYING TO THE SIDE. HER SKIRT WAS UP. HER SHIRT WAS UP, SO THAT ONE BREAST WAS ENTIRELY EX- PROSED -- EXPOSED AND ANOTHER ONE AT LEAST PARTIALLY. WHAT I AM CONFUSED ABOUT, AND THIS IS LEADING TO ANOTHER SPECIFIC QUESTION. THE EVIDENCE ABOUT THE MUTILATION OF THIS VICTIM'S BODY, WHICH IS VERY GRAPHIC AND VERY GRAPHIC TESTIMONY, THERE IS NO CONTENTION THAT THAT OCCURRED WHILE SHE WAS CONSCIOUS. CORRECT? THE MEDICAL EXAMINER TESTIFIED SHE DID NOT BELIEVE THAT SHE WAS, QUOTE, FULLY CONSCIOUS, AND THE REASON FOR THAT WAS SHE HAD NO INFORMATION THAT THIS LADY'S LIMBS HAD BEEN BOUND, AND SHE THOUGHT THAT, IF SHE HAD BEEN FULLY CONSCIOUS, THEN SHE WOULD HAVE, YOU KNOW, STRUGGLED WHILE THAT WAS HAPPENING, AND I SUPPOSE -- I THOUGHT THERE WAS SOMETHING ABOUT THE WAY THE CUTS WERE THAT THEY WERE SHOWING THAT THE BODY WOULD HAVE BEEN STILL AT THAT TIME. RIGHT. AND THAT IS WHY SHE THOUGHT SO, BECAUSE THE CUTS WERE VERY CLEAN AND PRECISE, AS FAR AS THE ACTUALLY SLICING OFF OF THE NIPPLE, WHEREAS IF SHE HAD BEEN FULLY CONSCIOUS, SHE WOULD HAVE BEEN STRUGGLING, AND THEY WOULDN'T HAVE BEEN THAT WAY. THE POST MUTILATIONS WERE NOT A CAUSE OF DEATH. WHAT IS THE JURY, BECAUSE THERE WAS A CLAIM ABOUT THE INTRODUCTION OF THAT EVIDENCE, WHAT IS THE RELEVANCE OF WHAT OCCURRED TO THE BODY, AFTER SHE WAS UNCONSCIOUS, TO ANY OF THE AGGRAVATING FACTORS IN THIS DEATH PENALTY CASE? I DON'T KNOW WHICH ISSUE YOU ARE REFERRING TO, AS FAR AS THE RING CLAIM. I DON'T RECALL THAT CLAIM -- THE PHOTOGRAPHS, THAT THE PHOTOGRAPHS WERE, ADMITTING THE PHOTOGRAPHS OF THE BODY, OVER THE OBJECTION. YES. TO EXPLAIN THE INJURES THAT WERE ON THE VICTIM'S BODY. WHAT I AM ASKING YOU IS WHAT IS THE RELEVANCE OF, IF SHE -- IT IS NOT THE CAUSE OF DEATH, AND IT DOESN'T PLAY A PART IN THE HAC, OTHER THAN BEING INFLAMMATORY, WHAT IS THE PURPOSE OF THAT EVIDENCE IN THIS CASE? IN OTHER WORDS I WOULD BE -- WOULD I BE MORE LIKELY TO IMPOSE THE DEATH PENALTY, WHEN I LEARNED THAT THIS HAPPENED TO A PERSON, THAT THIS MUTILATION OCCURRED, AND IS THAT PROPER FOR ME TO CONSIDERING

15 THAT, BECAUSE THAT WOULD INFLUENCE ME TO BE MORE OUTRAGED ABOUT THIS CRIME, BECAUSE OF WHAT OCCURRED? YOUR HONOR, I DON'T BELIEVE THAT THAT ISSUE WAS RAISED, EITHER, IN THE TRIAL COURT OR ON APPEAL, IN THAT MANNER. BUT I WILL SAY THIS, THE MEDICAL EXAMINER TESTIFIED THAT THIS WOMAN'S CERVIX WAS PENETRATED WITH A SHARP OB, AND THAT SHARP OBWAS CONSISTENT WITH THE KNIFE THAT WAS INTRODUCED INTO EVIDENCE. THAT WOULD BE RELEVANT TO THE DETERMINATION THAT THIS CRIME OCCURRED DURING THE COMMISSION OF A SEXUAL BATTERY. THAT THERE SHALL FURTHER EVIDENCE OF A SEXUAL BATTERY. SO THE -- AND THE MEDICAL EXAMINER TESTIFIED THAT THE VICTIM WAS ALIVE AT THE TIME THESE THINGS HAPPENED. SO THAT, AGAIN, IS RELEVANT TO THIS MURDER HAPPENED DURING THE COURSE OF A SEXUAL BATTERY, SO I DO BELIEVE THAT THAT EVIDENCE OF WHAT HAPPENED TO MS. ROBL'S -- TO MS. ROBLES' BODY, AFTER SHE WAS NO LONGER FULLY CONSCIOUS, WAS RELEVANT. SO THE MUTILATION WHILE SOMEONE IS ALIVE IS A SEXUAL BATTERY? TO THE EXTENT THAT THIS MAN SHOVED THE KNIFE UP INTO THIS WOMAN'S VAGINA AND INTO HER CERVIX, AND, YES. BUT WHAT ABOUT THE MUTILATION? THE EXTERNAL MUTILATION? COULD THAT -- IS THAT A SEXUAL -- I DON'T SEE HOW THAT COULD HAVE BEEN SPLATED OUT. THAT WOULD NOT -- SEPARATED OUT. THAT WILL NOT CONSTITUTE A SEXUAL BATTERY? I AM NOT SURE ABOUT THE REMOVAL OF PART OF THE GENITALIA. THAT MIGHT. I AM NOT SURE ABOUT THAT. THE MEDICAL EXAMINER -- WHAT IS THE STATE OF THE LAW ON HEINOUS, ATROCIOUS AND CRUEL, AS IT RELATES TO HOW MUCH TIME THE VICTIM HAS TO BE AWARE OF WHAT IS GOING ON? BECAUSE AS I UNDERSTAND THE APPELLANT'S ARGUMENT IS, SINCE THE MEDICAL EXAMINER COULD NOT SAY, WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY, HOW LONG SHE WAS CONSCIOUS WHILE THESE ACTS WERE BEING PERPETRATED ON HER, THAT WE CAN NOT USE THE HEINOUS, ATROCIOUS AND CRUEL AGGRAVATOR? I DON'T THINK THAT IS THE LAW IN ANY WAY, SHAPE OR. THIS COURT HAS REPEATEDLY SAID, WHERE THERE IS A STRANGULATION DEATH, HAC IS GOING TO BE FOUND, IF THERE IS ANY CONSCIOUSNESS, AND THAT CERTAINLY IS THE TESTIMONY IN THIS CASE IS THAT THERE WAS -- COULD THAT BE A FEW SECONDS? YES, MA'AM, IT COULD. ONE OF THE CASES THAT WE WOULD CITE FOR THAT PROPOSITION IS THE HIL DWI N CASE, WHEN THE COURT SAID WHENEVER THERE IS STRANGULATION DONE TO A CONSCIOUS VICTIM -- DOESN'T SAY SHE HAS TO BE CONSCIOUS FOR "X" NUMBER OF MINUTES OR SECONDS, EVEN THOUGH IN THIS CASE THE TESTIMONY WAS SHE WAS CONSCIOUS FOR MORE THAN A FEW MINUTES, BUT IN THIS CASE IT IS PRESUMED TO BE KNOWLEDGE BEFORE DEATH, EXTREME ANXIETY AND FEAR, THAT IS HAC, AND THAT WAS THE COURT IN THE HILL WISMT N DECISION -- IN THE HILLWIN DECISION. WHAT DID THE COURT SAY -- WHAT DID THE MEDICAL EXAMINER SAY?

16 IT WAS HER OPINION THAT THIS WOMAN DIED AROUND THREE O'CLOCK. IN TERMS OF THE STRANGULATION OR WHATEVER OCCURRED, HOW LONG AFTER THAT? THAT IS I AM NOT SURE THAT I UNDERSTAND WHAT THE TESTIMONY WAS, IN TERMS OF THE SEQUENCE OF EVENTS. SEQUENCE OF EVENTS. THAT THE BEATING OCCURRED FIRST. AND THAT, THEN, HE USED, PROBABLY, THE STRAPS FROM THE WOMAN'S PURSE TO STRANGLE HER, AND THAT THAT NEXT OCCURRED, AND THAT LASTLY WAS THE MUTILATIONS AND THE KNIFE UP INTO THE CERVIX. AND THAT SHE WAS STILL ALIVE DURING THAT TIME. SHE WAS STILL ALIVE. AND THAT SHE DIED SOMETIME AFTER THAT? THAT'S CORRECT. DID THE MEDICAL EXAMINER EXPRESS ANY VIEW ABOUT THAT? WELL, SHE EXPRESSED THAT SHE DIED AFTER THAT, THAT SHE WAS STILL ALIVE, BUT I DON'T UNDERSTAND WHAT YOU ARE ASKING. IN OTHER WORDS, THE MEDICAL EXAMINER SAID SHE PROBABLY DIED FIVE OR TEN MINUTES AFTER THE LAST WOUNDS WERE INFLICTED? I DON'T RECALL ANY TESTIMONY AS TO HOW LONG AFTER THE LAST --. IT WAS DEFINITELY SHE WAS ALIVE DURING NOT ONLY THE CHOKING OR STRANGULATION AND THE BEATING, BUT THAT SHE WAS A LIVE DURING THE MUTILATION. SHE WAS ALIVE DURING THE MUTILATION. SHE WAS NOT FULLY CONSCIOUS, IN THE MEDICAL EXAMINER'S OPINION. WOULD YOU ADDRESS THE DISCOVERY ISSUE THAT THE COUNSEL HAS RAISED WITH REGARD TO SHARING THE INFORMATION ABOUT -- ABOUT THE PHOTOGRAPHS? ATTACHING THE RING AND THE MARK ON THE NECK. I WOULD DISAGREE WITH HIM ABOUT WHAT THE RECORD SHOWS. I BELIEVE THAT THE RECORD SHOWS THAT THE MEDICAL EXAMINER'S OPINION, WHICH WAS FORMED AT THE AUTOPSY, IF I RECALL THE TESTIMONY CORRECTLY, WAS THAT A PIECE OF JEWELRY HAD CAUSED THE PATTERN THAT WAS ON THE VICTIM'S NECK, AND THAT SHE SUSPECTED IT WAS EITHER A RING OR A BELT BUCKLE. AND I BELIEVE THAT HAS BEEN KNOWN TO THE DEFENSE SINCE VERY, VERY EARLY ON. CERTAINLY -- THIS WAS DISCUSSED DURING THE DEPOSITION? THE SLIDES WERE DISCUSSED? YES. IT IS MY UNDERSTANDING THAT THE SLIDES WERE SHOWN DURING THE DEPOSITION, AND THE SLIDES WERE DISCUSSED, AND THAT WAS TO THE ORIGINAL COUNSEL. I DO AGREE WITH HIM ON THAT, BUT IN THIS PARTICULAR CASE, WITH THIS COUNSEL, THERE IS EVIDENCE IN THE RECORD THAT THE PROSECUTOR CONTACTED FLAMIA AND SAID I AM GOING TO ORDER A SCALED PHOTOGRAPH FROM THE SLIDE. AND FLAMIA NEVER SAID GET ME A COPY, TOO, OR I WOULD LIKE

17 TO SEE IT WHEN IT COMES IN, BUT THERE IS EVIDENCE THAT, WHEN IT CAME IN, WHICH WAS ABOUT SIX DAYS BEFORE THE PRESENTATION IN COURT, THAT THEY ARE OBJECTING TO, SHE TOLD FLAMIA I HAVE GOT IT. FLAMIA DIDN'T SAY CAN I COME LOOK? FLAMIA DIDN'T SAY I WOULD LIKE FOR MY EXPERT TO SEE IT. CAN YOU GET ME A COPY? SHE DIDN'T SAY ANYTHING LIKE THAT. INSTEAD SHE WAITS UNTIL THEY ARE IN THE TRIAL PROCEEDING AND THE EVIDENCE IS BROUGHT FORWARD AT THAT TIME, AND YOU KNOW, THE CLAIM IN THE BRIEF IS THAT THAT THAT IS THE FIRST THAT THE -- THAT THAT IS THE FIRST THAT THE PRESENT DEFENSE COUNSEL KNEW OF IT, AND THAT IS JUST NOT WHAT THE RECORD SHOWS. BUT IT IS THE DISTINCT POSITION THAT, WHEN THE PHOTOGRAPH WAS BLOWN-UP AND YOU COULD CLEARLY SEE, THEN, OR YOU COULD SEE THAT THIS GRIM REAPER RING POSSIBLY MADE THE BRUCE, THAT THERE WAS NO CONTINUING DISCOVERY OBLIGATION TO BRING THAT TO THE ATTENTION OF DEFENSE COUNSEL. IS THAT THE STATE'S -- NOT BEYOND WHAT SHE DID IN THIS CASE. SHE SAYS I AM GOING TO HAVE A SCALED PHOTOGRAPH MADE. AND THEN SHE SAYS I DID HAVE IT MADE, AND I HAVE GOT IT. AND SHE SAID THIS TO THE DEFENSE ATTORNEY. TO THE DEFENSE ATTORNEY. FLAMIA. I GUESS IT WOULD BE CRITICAL. I GUESS THE CRITICAL QUESTION IS, IF IT WAS ALREADY DISCUSSED AT THE DEPOSITION, AS YOU REPRESENTED TODAY, THEN THERE IS, REALLY, NO ISSUE. BUT WE HAVE -- IT SEEMS LIKE WE HAVE A CLEAR DISPUTE WITH YOUR APPELLANT SAYING, NO, IT WAS NOT BROUGHT UP, AND YOU ARE SAYING IT WAS. NOW, WE HAVE THE DEPOSITION IN THE RECORD, SO WE WILL BE ABLE TO READ THE DEPOSITION, FIND OUT IF THE MEDICAL EXAMINER EXPRESSED AN OPINION ON THEIR BEING A MARK THAT COULD HAVE BEEN - - ON THERE BEING A MARK THAT COULD HAVE BEEN MADE BY THE RING. AND ON THE RECORD WHEN THEY HAD THE RICHARDSON HEARING ON THIS ISSUE, THAT WAS DISCUSSED, AS WELL, AS TO WHETHER THIS INFORMATION WAS VIEWED BY THE PROCEDURE PRIOR DEFENSE ATTORNEY AT THE DEPOSITION -- BY THE PRIOR DEFENSE ATTORNEY AT THE DEPOSITION. YOU WOULD AGREE HYPOTHETICALLY, THE STATE, AFTER THE MEDICAL EXAMINER HAD TESTIFIED, THAT THE WEEK BEFORE, THE MEDICAL EXAMINER, THEN, IS ABLE TO MAKE A CONCLUSIVE DETERMINATION ABOUT SOMETHING, THAT THAT IS, THEN, AN OBLIGATION ON THE PART OF THE STATE TO BRING THAT INFORMATION DIRECTLY TO THE DEFENDANT, TO SUPPLEMENT THAT TESTIMONY, THAT EXPERT TESTIMONY, IF IT IS GOING TO BE USED AT TRIAL. I WOULD THINK, IF IT WAS A SIGNIFICANT CHANGE IN WHAT HAD BEEN SAID, BUT IN THIS CASE THE MEDICAL -- I MEAN, YES, THE MEDICAL EXAMINER HAD ALREADY SAID SHE BELIEVED A RING OR PIECE OF JEWELRY HAD MADE THE PATTERN. BUT IT WOULD BE SIGNIFICANT, IF THERE IS NO OTHER PHYSICAL EVIDENCE LINKING THIS DEFENDANT TO THE BODY, THAT, IF THAT LINK IS BEING MADE AND IT HADN'T BEEN, EVEN, DISCUSSED BEFORE, THAT THAT WOULD BE A SIGNIFICANT CHANGE. IF THERE HAD BEEN NO DISCUSSION WHATSOEVER, IF THEY HADN'T KNOWN ABOUT IT BEFORE, YES. THAT WOULD BE SIGNIFICANT. WOULD YOU ADDRESS THE ISSUE SEVEN, THE KNIFE AND THE SHEATH. WHY WEREN'T THESE ADMISSIBLE INTO EVIDENCE? A KNIFE WAS FOUND IN THE HOUSE. THERE WAS NO TRYATION MARKS OR ANYTHING THAT WOULD -- THERE WAS NO STRIATION MARKS OR ANYTHING THAT WOULD NECESSARILY SAY THAT THIS WAS THE KNIFE THAT WAS USED. SO WHY --

18 WELL, FIRST I WOULD LIKE TO SAY THAT THE ISSUE RAISED IN THE BRIEF ON APPEAL WAS THAT THE ADMISSION OF THIS EVIDENCE WAS MORE PREJUDICIAL THAN IT WAS PROBATIVE. THE ISSUE RAISED IN THE TRIAL COURT, THE MOTION REGARDING THE KNIFE, WAS THREE-PRONGED. IT WAS THAT THE KNIFE ISN'T CONNECTED TO THE MURDER, THE KNIFE ISN'T CONNECTED TO MANSFIELD, AND, THREE, IT IS MORE PREJUDICIAL THAN PROPOSETIVE, AND IN THE TRIAL COURT -- THAN PROBATIVE, AND IN THE TRIAL COURT, THE ATTORNEY DIDN'T ARGUE EW THE ISSUE RAISED ON APPEAL. HE ABANDONED MORE PREJUDICIAL AND PROBATIVE AND ARGUED THE OTHER TWO. IN APPELLATE COURT, HERE, WE HAVE THEM SAYING, WELL, IT IS MORE PREJUDICIAL THAN PROBATIVE AND ABANDONS THE FIRST TIMEth PART, AND -- THE FIRST PART, AND YET WHEN MR. BURDEN GAVE HIS ARGUMENT A FEW MINUTES AGO, I THOUGHT I HEARD HIM SAY, THAT THIS ISN'T TIED TO THE MURDER. MY POINT IS, IF THEY HAD KBO INTO THE KITCHEN -- IF THEY HAD GONE INTO THE KITCHEN, THEY WOULD HAVE HAD BUTCHER KNIVES IN THERE, AND YOU COULDN'T PUT A BUTCHER KNIFE IN THERE AND SAY A MUTILATION WAS DONE AND A KNIFE WAS USED AND SO FORTH, AND WE FOUND A KNIFE IN THE HOUSE. ISN'T THIS KIND OF AKIN TO THAT? YOU FOUND A HUNTING KNIFE IN A SHEATH IN THE HOUSE. MR. MANSFIELD'S BROTHER IS THE ONE WHO CONTACTED THE POLICE, AFTER HIS BROTHER HAD BEEN ARRESTED FOR THIS CRIME. HE SAID THAT HE FOUND, IN THE CLOSET OF THE ROOM WHERE HIS BROTHER LIVED IN HIS APARTMENT, THAT KNIFE. AND THAT HE, ALSO, FOUND THE FOOD STAMPS AND THE SHEATH AND SO ON IN A NIGHT STAND DRAWER BESIDE THE BED. THE MEDICAL EXAMINER TESTIFIED THAT THE HILT OF THE KNIFE WAS CONSISTENT WITH THE PATTERN THAT WAS FOUND ON THE BREAST OF THE VICTIM, AND THAT PATTERN WAS JUST UNDER WHERE THE NIPPLES HAD BEEN EX-PIES -- EXCISED, THAT THERE WAS A PATTERN THERE AND THAT THE HILT OF THE KNIFE WAS CONSISTENT WITH THE MARK THAT WAS THERE. OKAY. I BELIEVE THERE WAS ONE POINT I WANTED TO MAKE ON THE PLEA OFFER. IF I UNDERSTOOD CORRECTLY, MR. BURDEN CONCEDED THAT WE DO NOT KNOW WHETHER THE DEFENDANT WAS WILLING TO ADMIT HIS GUILT, AND HE, ALSO, CONCEDED THAT THE PROSECUTOR WITHDREW THE OFFER, IF THERE WAS ONE, AND I THINK THOSE CONCESSIONS UNDERCUT HIS CLAIM ON THAT ISSUE CONSIDERABLY. CERTAINLY -- WHAT WAS THE POINT OF THIS OFFER, AT THIS POINT? WELL, ACCORDING TO WHAT THE PROSECUTOR SAID ON THE RECORD, THE POINT WAS SHE WANTED TO MAKE VERY, VERY SURE THAT THIS MAN COULD NEVER HURT ANYONE ELSE, AND SHE BELIEVED THAT, BY HAVING HIM ADMIT HIS GUILT. HAVING HIM WAIVE PAROLE, SO HE WOULD HAVE A LIFE SENTENCE WITH NO POSSIBILITY OF EVER GETTING OUT, HAVING HIM WAIVE APPELLATE RIGHTS, THAT SHE WOULD BE SURE OF ACCOMPLISHING THAT, BECAUSE THERE WAS ALWAYS SOME POSSIBILITY -- CAN YOU DO THAT? PARDON ME? YOU CAN DO THAT? THAT IS A VALID PLEA BARGAIN? WHAT PART? NO PAROLE. WHAT ARE THE OPTIONS, WHEN YOU ARE CONVICTED OF FIRST-DEGREE MURDER? WELL, YOU GET LIFE SENTENCE OR YOU GET THE DEATH PENALTY. BUT, YES, IT IS MY UNDERSTANDING THAT YOU CAN WAIVE PAROLE AND YOU CAN WAIVE APPELLATE RIGHTS.

19 THIS IS AFTER 1994 OR AFTER THE LEGISLATIVE CHANGES. CORRECT? YES. IT IS A '95 CASE. YEAH. '95. SO, THEN, YOU AGREE IT WAS NOT A HE WILL I AM POSIBILITY TO HAVE -- IT WAS NOT A LEGAL IMPOSSIBILITY TO HAVE DONE THIS DEAL? I DID NOT FIND ANY LAW THAT ANSWERS THAT QUESTION. IT WOULD MAKE NO -- HERE IS SOMEBODY, IF SOMEONE IS WILLING TO ADMIT THE GUILT, GIVE UP THEIR RIGHTS TO APPEAL, AND THE STATE SAYS WE WILL NOW NOT SEEK THE DEATH PENALTY, AND AS YOU SAY, THE PUBLIC IS ASSURED THE PERSON IS GOING TO BE PUT AWAY FOR THE REST OF HIS LIFE, AND EVERYONE AGREES TO IT, WHERE WOULD -- I MEAN, JUST BECAUSE THERE HAS ALREADY BEEN A JURY FINDING OF GUILT SHOULDN'T PRECLUDE THE DEFENDANT FROM ADMITTING HIS GUILT, SHOULD IT? ALSO, YOUR HONOR, IT IS CLEAR ON THE RECORD THAT THE ADMISSION OF GUILT WAS EXTREMELY IMPORTANT TO THE STATE. AT LEAST THREE OR FOUR TIMES, ON THAT RECORD, WHEN THEY ARE DISCUSSING IT, THAT IS WHAT IS SAID, OVER AND OVER AGAIN, AND THE JUDGE PICKS UP ON THAT AND SAYS SO AS WELL. AND THE DEFENDANT, ON THIS RECORD, IT WAS NOT CLEAR THAT HE WAS WILLING TO DO THAT. IT IS DEFINITELY NOT CLEAR. I WOULD SUBMIT THAT THERE SOME INDICATIONS ON THIS RECORD THAT THAT WAS THE PROBLEM, THAT HE DID NOT WANT TO ADMIT HIS GUILT AND WAS NOT WILLING TO ADMIT HIS GUILT, AND THAT HIS DEFENSE ATTORNEY KNEW THAT, AND THAT THAT IS WHY SHE MADE THE COUNTEROFFER, WHICH WAS HE WILL WAIVE APPELLATE RIGHTS. YOU GIVE HIM A LIFE SENTENCE, BECAUSE SHE KNEW THAT THAT WAS ALL HE WAS WILLING TO DO AT THAT POINT, AND JUST A POINT I WOULD LIKE TO MENTION BRIEFLY, THE COURT WAS QUESTIONING ABOUT, WELL, WHETHER THE JUDGE'S APPROVAL WAS NEEDED ODD THIS PLEA BARGAIN OR WHETHER THE STATE COULD JUST SIMPLY SAY WE HAVE DECIDED WE ARE NOT GOING TO SEEK THE DEATH PENALTY ANYMORE. IT DOESN'T MATTER. WE HAVE SPENT THIS TIME AND EFFORT HERE. YOU DON'T HAVE ANYTHING TO SAY ABOUT IT, JUDGE. IF YOU WILL LOOK ON THE RECORD, THE PROSECUTOR MADE IT VERY CLEAR THAT PART OF THE OFFER, PART OF THE DEAL WAS, IF THE JUDGE APPROVED THE PLEA BARGAIN, IF THE JUDGE ACCEPTS THE PLEA BARGAIN. SO WHAT THE JUDGE WOULD DO WITH THAT WAS IMPORTANT. IT WAS PART OF THE OFFER THAT THE STATE MADE. IF THERE ARE NO FURTHER QUESTIONS, THE STATE WILL RELY ON ITS BRIEF. THANK YOU VERY MUCH. THANK YOU. HAS APPELLATE USED ALL HIS TIME? THANK YOU, MR. BURDEN. THANK YOU.