Jeffrey G. Hutchinson v. State of Florida

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. Jeffrey G. Hutchinson v. State of Florida CHIEF JUSTICE: GOOD MORNING, EVERYONE. WELCOME TO THE FLORIDA SUPREME COURT. BEFORE I CALL THE FIRST CASE, THE COURT WOULD LIKE TO WELCOME THE FLORIDA A&M UNIVERSITY CLASS ON THE AMERICAN COURT SYSTEM. WE ESPECIALLY WELCOME DR. HOWARD MEYER, WHO HAS BROUGHT HIS CLASS HERE, TO THE COURT. WELCOME. WITH THAT, WE WILL GO RIGHT TO THE FIRST CASE. LOOKS LIKE COUNSEL IS READY. HUTCHINSON VERSUS STATE. IF YOU ARE READY, YOU MAY PROCEED. GOOD MORNING. IF IT PLEASE THE COURT. ON SEPTEMBER 11 OF 1998, RENEE FLAHERTY AND HER THREE CHILDREN WERE FOUND DEAD IN THE HOME THAT RENEE FLAHERTY SHARED WITH JEFFREY HUTCHINSON. ALL OF THE EVIDENCE AT TRIAL INDICATED THAT JEFFREY HUTCHINSON AND RENEE FLAHERTY HAD A GOOD RELATIONSHIP, THAT JEFFREY HUTCHINSON CARED FOR THE CHILDREN, THAT HE TREATED THE CHILDREN AS IF THEY WERE HIS OWN. ALL OF THE EVIDENCE POINTED THAT THEY GOT ALONG WELL AND THAT HE LOVED THEM. MR. HUTCHINSON WAS CONVICTED, FOUR COUNTS OF FIRST-DEGREE MURDER. WHAT I WOULD LIKE TO FOCUS ON THIS MORNING IS THE ERRORS THAT THE TRIAL COURT COMMITTED, WHICH WE SUBMIT CAUSED A REVERSAL TO OCCUR. ARE YOU, THERE ARE A NUMBER OF ISSUES THAT YOU HAVE RAISED HERE, AND I AM WONDERING WHICH ONES YOU PLAN TO FOCUS ON, OR ARE YOU GOING TO TRY TO HIT ON ALL TEN OF THEM? WHAT I WOULD LIKE TO FOCUS ON, JUSTICE QUINCE, IS THE STATEMENT THAT THE TRIAL COURT ALLOWED IN, AS EVIDENCE, THAT THE TRIAL COURT THOUGHT OR RULED WAS AN EXCITED UTTERANCE. OKAY. WE SUBMIT THAT IT WAS NOT AN EXCITED UTTERANCE, AND BASED ON THAT ERROR, IT WAS AN ABUSE OF DISCRETION AND IT WAS HARMFUL. IT WAS NOT A HARMLESS ERROR. GIVE US THE FACTUAL CONTEXT, THEN "E" FOR THE STATEMENT. -- THEN, FOR THE STATEMENT. YES. RENEE FLAHERTY, AT ABOUT SEVEN O'CLOCK IN THE EVENING, HAD MADE A PHONE CALL TO A FRIEND. THAT PHONE CALL WAS GOING WELL. SHE WAS HAPPY. MR. HUTCHINSON WAS IN THE HOME. THIS FRIEND HEARD MR. HUTCHINSON SAY IN THE BACKGROUND, HEY, CINDY, HOW ARE YOU? EVERYTHING WAS FINE. AT 7:30 IN THE EVENING, RENEE FLAHERTY CALLED ANOTHER FRIEND WHO LIVES IN WASHINGTON STATE. THE FIRST WORDS OUT OF HER FRIEND'S MOUTH, WHEN SHE PICKED UP THE PHONE, WERE "HELLO". THE FIRST WORDS OUT OF RENEE FLAHERTY'S MOUTH WERE "WE HAVE HAD A FIGHT." IT PROCEEDED AND THE FRIEND ASKED QUESTIONS. THE ONLY STATEMENT MADE BY MS. FLAHERTY THAT WAS NOT AS A RESULT OF A QUESTION WAS THE FIRST STATEMENT. EVERY OTHER STATEMENT WAS AS THE RESULT AFTER QUESTION, WHICH WE SUBMIT MEANS THAT THERE WAS A REFLECTIVE THOUGHT. THAT IS PART OF THE PROBLEM WITH ALLOWING THIS STATEMENT IN AS AN EXCITED UTTERANCE, BECAUSE IT WAS REFLECTIVE THOUGHT. ASSUMING FOR THE MOMENT THAT YOU ARE CORRECT AND IT WASN'T AN EXCITED UTTERANCE AND IT WASN'T A SPONTANEOUS STATEMENT, WHY ISN'T IT HARMLESS ERROR, BECAUSE THERE

2 WAS ALSO TESTIMONY THAT HE WENT TO A BAR AND SAID THAT HIS WIFE, GIRLFRIEND, WAS ANGRY AT HIM, AND THE STATEMENT THAT SHE, ALL HER STATEMENT DOES IS SAY THE SAME THING, THAT THEY HAD SOME KIND OF ARGUMENT AND SHE WAS MAD AT HIM. OKAY. HE DID SAY THAT, AND I THINK WHAT HE SAID AT A BAR, THERE WAS A STATEMENT THAT HE MADE THAT RENEE WAS PISSED OFF AT HIM. I THINK THERE WAS A QUESTION WHY, AND HE RESPONDED I DON'T KNOW. I AM NOT SURE. THE SHORT ANSWER TO YOUR QUESTION, JUSTICE, IS THAT IT IS HARMFUL, BECAUSE IT AFFECT HE HAD THE VERDICT. BECAUSE WHEN WE LOOKED AT THE DEGULIO, AND I WOULD ASK THIS COURT AGAIN TO EXAMINE DEGULIO CLOSELY, BECAUSE THE CHIEF JUSTICE OF THE SUPREME COURT CITED HIS CONCERNS ABOUT HARMLESS ERROR AND WHAT DOES HARMLESS ERROR MEAN. I HAVE THAT CASE WITH ME, AND IF I COULD QUOTE FROM IT -- WE UNDERSTAND. I THINK WHAT JUSTICE CANTERO IS ASKING AND MY CONCERN, TOO, IS ASSUMING IT IS ERROR, WHAT IS IT ABOUT THAT STATEMENT THAT IS, THAT AFFECTED THE GUILT, IN ANY WAY, OR MIGHT HAVE, UNDERSTANDING IT IS VERY, THE THRESHOLD IS VERY, YOU KNOW, VERY LITTLE TO SHOW HARMFUL ERROR. I UNDERSTAND. AGAIN, THE SHORT STATEMENT IS IT DID AFFECT THE VERDICT. HERE IS HOW IT AFFECTED THE VERDICT. BECAUSE RIGHT FROM THE VERY BEGINNING, THE PROSECUTOR IN THIS CASE, WHO WAS THE SAME PROSECUTOR IN LAMAR BROOKS. I AM SURE YOU RECALL LAMAR BROOKS'S CASE. THE SAME PROSECUTOR IN THAT CASE WAS IN THIS CASE, AND FROM THE VERY BEGINNING IN HIS OPENING STATEMENT, WITHIN THE FIRST MINUTE OF HIS OPENING STATEMENT, HE FOCUSED ON THIS PHONE CALL. HE FOCUSED ON THE PHONE CALL AND SAID YOU ARE GOING TO HEAR ABOUT THIS PHONE CALL AND HOW IT PROVIDED THE MOTIVE, AND FROM HIS OPENING TO HIS ON CLOSING, IN HIS CLOSING -- IS MOTIVE CONSTITUTIONALLY -- IS MOTIVE ACTUALLY NECESSARY TO BE DEMONSTRATED IN A MURDER CASE SUCH AS THIS? NO, IT IS NOT NECESSARY, BUT THIS PROSECUTOR BRAGGED IN HIS CLOSING ARGUMENT ABOUT HOW HE DID PROVE MOTIVE AND HOW THIS PHONE CALL PROVED THE MOTIVE AND IT WAS THE FEATURE AT TRIAL, AND IT WAS THE ONLY REASON THAT THE PROSECUTOR OFFERED AND THAT THE EVIDENCE COULD SHOW, THE ONLY REASON WHY THIS MAY HAVE OCCURRED WAS AS A RESULT OF THIS PHONE CALL AND THIS ARGUMENT, AND HE FOCUSED ON IT AND FROM THE VERY BEGINNING, HE LET THE JURY KNOW ABOUT THIS PHONE CALL. HOW ABOUT ELABORATING, AND LET'S COME BACK TO THE SAME QUESTION THAT HAS BEEN ASKED OF YOU, AND LET'S TAKE A HYPOTHETICAL, A DIFFERENT SITUATION. LET'S SUPPOSE, IN THE PHONE CALL, THAT SHE HAD SAID TO HER FRIEND, I AM ANGRY AT BILL. OKAY. AND THEN WE HAVE THE ADDITIONAL TESTIMONY THAT BILL, HIMSELF, SET AT A BAR, WHICH IS PROPERLY ADMISSIBLE, THAT SHE IS ANGRY AT ME. OKAY. NOW, I DON'T KNOW WHETHER YOU WOULD AGREE OR NOT, BUT IN MY HYPOTHETICAL, I HAVE GOT, IN ESSENCE, THE VERY SAME STATEMENT BEING MADE BY THE DEFENDANT THAT WAS MADE BY THE VICTIM, AND I AM ATTEMPTING TO GIVE YOU A HYPOTHETICAL THAT LOOSE AWFULLY HARMLESS H THAT IS THAT, IF THE DEFENDANT SAID THAT SHE SAID THE SAME THING OR THAT SHE WAS ANGRY AT HIM AND SHE HAD SAID THAT, NOW, WHAT IS DIFFERENT OR HOW DO YOU DISTINGUISH THIS CASE FROM THE HYPOTHETICAL THAT I JUST GAVE YOU? AS FAR AS WHAT WAS SAID IN THIS CONVERSATION THAT WOULD BE ADDITIONALLY HARMFUL, OVER AND ABOVE WHAT THE DEFENDANT, HIMSELF, SAID AT THE BAR. DO YOU UNDERSTAND MY QUESTION? I DO. I DO, JUSTICE ANSTEAD. WOULD YOU HELP US WITH THAT?

3 I WILL TRY, AND I THINK I CAN DISTINGUISH IT BY THE STATEMENTS THAT WERE MADE BY MR. HUTCHINSON AND MS. FLAHERTY ARE NOT THE SAME. MS. FLAHERTY SAID WE HAVE HAD A FIGHT. MR. HUTCHINSON, WHEN HE WAS IN THE BAR, SAID TO THE EFFECT THAT RENE IS PISSED OFF AT ME. I THINK THAT IS DIFFERENT. HE DIDN'T SAY WE HAD A FIGHT, THAT WE DON'T KNOW ANYTHING ABOUT THE CHARACTERISTICS OF THIS ARGUMENT, WHICH IS ANOTHER CONCERN WITH WHETHER THE STATEMENT IS AN EXCITED UTTERANCE, AND IT IS, ALSO, A CONCERN FOR THE ERROR BEING HARMFUL. I THINK IT IS DIFFERENT THAN YOUR HYPOTHETICAL, JUSTICE ANSTEAD. WHAT ELSE WAS SAID THAT MAKES IT MORE HARMFUL THAN MY HYPOTHETICAL? WELL, SHE -- WHAT ELSE WAS SAID IN THE CONVERSATION? SHE CONTINUED IN HER CONVERSATION THAT WE HAVE HAD A FIGHT. IT WAS A BIG FIGHT. HE PACKED UP HIS TRUCK AND LEFT. HE IS GONE, AND THESE ARE AS A RESULT OF QUESTIONS, AGAIN. WELL, WHAT DO YOU WANT TO DO? NOW THAT, INFORMATION THAT YOU ARE TALKING ABOUT IS ALL INFORMATION THAT WAS ESTABLISHED BY OTHER EVIDENCE, TOO, IS IT NOT? THAT IS THAT HE PACKED UP HIS TRUCK AND THAT HE LEFT. ISN'T THAT, WASN'T THAT ESTABLISHED BY OTHER -- THERE WAS EVIDENCE THAT HIS TRUCK WAS PACKED UP, YES, SIR. HOWEVER, I HAVE TO GO BACK TO THE DEGULIO, BECAUSE I TRULY BELIEVE THAT, WHEN YOU LOOK AT DEGULL YO CAREFULLY AND LOOK AT THE CONCERNS, IT DOESN'T SAY WEIGH THE EVIDENCE AND IF THERE IS OVERWHELMING EVIDENCE, THEN IT IS HARMLESS. THAT IS NOT WHAT DEGULIO SAYS. I GUESS WHAT I AM TRYING TO GIVE YOU AND TRIED TO GIVE YOU IN MY HYPOTHETICAL IS A SITUATION WHERE VIRTUALLY THE SAME EXACT INFORMATION IS DISCLOSED IN A DIFFERENT WAY, BUT IT IS THE SAME EXACT INFORMATION, AND I AM ASKING YOU IF THAT IS THE CASE HERE, OR IF THERE WAS THIS ADDITIONAL AND IT GOES TO WHAT THE PROSECUTOR DID IS HE USES STATES FROM THE DECLARANT, FROM THE VICTIM, TO PROVE THE INTENT OF THE DEFENDANT, AND I THINK THAT IS THE DIFFERENCE. THE HARMFUL ASPECT IS THE PROSECUTOR'S EXPRESS RELIANCE ON THIS PARTICULAR CONVERSATION, IN BOTH THE OPENING AND THE CLOSING STATEMENT AS WELL? YES, SIR, YES. THAT IS WHAT HE DID IN THIS CASE, FROM THE OPENING BELL TO THE CLOSING BELL. THE PROSECUTOR OBVIOUSLY THOUGHT THAT IT WAS VERY IMPORTANT. I AGREE. HE THOUGHT IT WAS VERY IMPORTANT, AND, AGAIN, BRAGGED IN CLOSING HOW HE HAD PROVED MOTIVE AND HOW DID HE PROVE MOTIVE? HE PROVED MOTIVE BECAUSE OF THIS PHONE CALL. THIS IS WHY THIS OCCURRED. EVEN HE SAID RENEE FLAHERTY TOLD HER FRIEND HE IS GONE AND HE IS NOT COMING BACK, AND HE SAID, WELL, HE DID COME BACK. IS IT TRULY DISPOSITIVE THAT THE PROSECUTOR FELT THAT IT WAS IMPORTANT, IF IN FACT IT WAS NOT DISPOSITIVE AND WAS CUMULATIVE OF OTHER EVIDENCE THAT CAME IN? I DON'T THINK IT WAS CUMULATIVE. I THINK THIS EVIDENCE, THIS STATEMENT FROM A DECEASED WOMAN'S MOUTH, THAT IS GOING TO SHOW THE, HE IS USING IT TO SHOW THE INTENT AND THE MOTIVE AND THE STATE OF MIND OF A DEFENDANT, WHICH SIMM PROPER. I THINK THAT IS WHERE THE DIFFERENCE IS, AND I THINK THAT IS THE ERROR THAT I AM ASKING YOU TO FOCUS

4 ON. THAT IS HOW -- I AM SORRY. JUSTICE WELLS HAS A QUESTION. WHAT WAS THE STATEMENT THAT WAS MADE TO THE 911 OPERATOR? THE STATEMENT, I AM ASSUMING YOU ARE REFERRING TO MR. HUTCHINSON, WHO PICKED UP THE PHONE AND, OR THE EVIDENCE WAS THAT HE, IT WAS HIM THAT PICKED UP THE PHONE, AND THE FIRST WORDS WERE OUT OF HIS MOUTH WERE "I JUST SHOT MY FAMILY." I AM ASSUMING THAT IS WHAT YOU ARE REFERRING TO. LATER ON IN THE CONVERSATION, HE ALSO SAID THERE WERE TWO GUYS IN THE HOUSE, AND HE USED TWO EXPLETIVES AND REFERRED TO THEM AND REFERRED TO THE TWO GUYS THAT HAD COME INTO THE HOUSE, AND HE SAID I DON'T KNOW WHO SHOT THEM. HE DID MAKE THAT STATEMENT, JUSTICE WELLS, BUT, AGAIN, DeGULIO SAYS WE NEED TO LOOK AT THE ERRORS. LOOK AT THE ERROR, AND COULD THE ERROR HAVE AFFECTED THE VERDICT, AND THAT IS WHAT I AM SUBMITTING. THE -- BACK TO JUSTICE SHAW'S QUESTION, ISN'T IT WHETHER OR NOT THIS EVIDENCE IS CUMULATIVE, A FACTOR IN MAKING A DETERMINATION AS TO WHETHER THIS ERROR WAS HARMLESS? I DON'T THINK SO, WITH ALL DPU RESPECT. I DON'T THINK SO, BECAUSE -- WITH ALL DUE RESPECT, I DON'T THINK SO, BECAUSE OF DeGULIO, BECAUSE OF WHAT IT TELLS US. IF I CAN READ FROM IT, IT SAYS OVERWHELMING EVIDENCE OF GUILT DOES NOT NEGATE THE FACT THAT AN ERROR THAT CONSTITUTED A SUBSTANTIAL PART OF THE PROSECUTOR'S CASE MAY HAVE PLAYED A SUBSTANTIAL PART IN THE JURY'S DELIBERATION. LET ME ASK, THE DEFENSE WAS EITHER THAT THESE TWO OTHER PEOPLE DID IT OR THAT HE WAS, IT WAS A CRIME OF PASSION. WAS THAT THE ALTERNATIVE DEFENSE? YES. YES. AS TO IT BEING A CRIME OF PASSION, DOESN'T THE CONVERSATION THAT THE GIRLFRIEND HAD WITH THE VICTIM ACTUALLY HELP THE DEFENSE, TO SHOW THAT THIS WAS SOMETHING UPSETTING HAD OCCURRED, AND THAT THEY, YOU KNOW, THAT THEY LOVED EACH OTHER, AND THEN HE IS LEAVING, AND IT WAS AN UPSETTING SITUATION? I GUESS I AM STILL STRUGGLING, BECAUSE, WITH HOW THIS COULD HAVE CONTRIBUTED TO A FINDING OF A FIRST-DEGREE MURDER. I MEAN, THERE IS NO REAL, THIS ISSUE THAT THERE BEING TWO OTHER MEN, I MEAN THERE WASN'T, WAS THERE ANY EVIDENCE OF THAT? I BELIEVE THE ONLY EVIDENCE THAT WAS PRESENTED FOR TWO OTHER MEN WOULD HAVE BEEN THE STATEMENTS ON THE 911 FOR THAT CALL. THERE WERE NO PHONE CALL. THERE WERE NO OTHER WITNESSES, EYEWITNESSES THAT CAME FORWARD AND SAID THERE WERE TWO OTHER MEN THERE, BUT IN AN ATTEMPT TO ANSWER YOUR QUESTION, BECAUSE THIS PROSECUTOR FOCUSED ON IT AND IT WAS A FEATURE OF THE TRIAL, ON HOW THIS PHONE CALL, THIS PHONE CALL WAS THE ONLY REASON, WAS THE ONLY EVIDENCE PRESENTED AS TO A REASON FOR THE MURDERS, FOR THE DEATHS. IT WAS THE ONLY REASON. THIS, THE EVIDENCE, ALL THE EVIDENCE SHOWED THAT THIS FAMILIAR GOT ALONG WELL, THAT MR. HUTCHINSON TREATED THESE CHILDREN AS IF THEY WERE HIS OWN. THAT HE LOVED RENEE, THAT THEY VERY RARELY FOR THE. THEY HAD A GOOD RELATIONSHIP. I DON'T WANT TO TAKE YOUR TIME, BUT YOU HAVE A LIMITED AMOUNT OF TIME, AND IF THERE ARE OTHER ISSUES THAT YOU WANT TO ADDRESS. WOULD YOU ADDRESS ISSUE NUMBER 8, THE MURDER ISSUE, THE COURT ERRED IN FINDING THAT HUTCHINSON COMMITTED MURDER OF THE CHILD AND WAS AGGRAVATED CHILD ABUSE. WOULD YOU ADDRESS THAT PARTICULARLY, SIR.

5 I WILL, JUSTICE SHAW, AND I NEED TO INFORM THE COURT THAT, AFTER A CAREFUL READING OF THE OPINION OF THE TRIAL COURT, IT IS MY UNDERSTANDING THAT THE TRIAL COURT DID NOT RELY ON THE AGGRAVATOR OF AGGRAVATED CHILD ABUSE. WHAT HE DID WAS HE FAILED, HE DID NOT MERGE, HE MERGED THEM, BUT HE SAID I AM NOT GOING TO CONSIDER AGGRAVATED CHILD ABUSE AS THE AGGRAVATOR. I AM ONLY GOING TO CONSIDER THE "UNDER TWELVE" AS THE AGGRAVATOR. HOWEVER, THERE IS A CONCERN WITH USING AGGRAVATED CHILD ABUSE AS AN AGGRAVATOR, WHEN IT IS THE FELONY THAT MAKES IT A FELONY MURDER, WHEN THE ONE ACT THAT CAUSES THE AGGRAVATED CHILD ABUSE, WHICH MAKES IT A FIRST-DEGREE FELONY MURDER, IS ALSO USED AS AN AGGRAVATOR. ARE YOU CONCEDEING THAT THIS WAS A FIRST-DEGREE FELONY MURDER, BASED ON CHILD ABUSE? NO. I, WITH ALL DUE RESPECT, I AM NOT CONCEDING THAT. AND I KNOW -- SO WAS THAT ISSUE ACTUALLY RAISED AT THE TRIAL COURT, AS TO WHETHER OR NOT THERE WAS SUFFICIENT EVIDENCE TO DEMONSTRATE FIRST-DEGREE MURDER, BASED ON CHILD ABUSE? THE TRIAL LAWYER OBJECTED, AND A JUDGMENT OF ACQUITTAL, HE ARGUED THAT THERE WAS NOT ENOUGH EVIDENCE FOR PREMEDITATION, FOR PREMEDITATED FIRST-DEGREE MURDER. SO I AM NOT SURE THAT HE PRESERVED THAT ISSUE. I KNOW HE DID FILE A JUDGMENT OF ACQUITTAL AND ARGUE A JUDGMENT OF ACQUITTAL, BASED ON PREMEDITATION. ARE YOU ARGUING THAT THE TRIAL COURT GAVE TOO MUCH WEIGHT TO THIS? IS THAT -- I DON'T THINK THE TRIAL WHAT APPEARS IN BOTH THOSE CONTEXTS, THAT YOU FEEL THAT IT SHOULD NOT BE GIVEN SUBSTANTIAL WEIGHT? THE AGGRAVATED CHILD ABUSE AGGRAVATOR? RIGHT. I DON'T THINK, BASED ON MY READING OF THE COURT, I DON'T THINK HE CONSIDERED THE AGGRAVATED CHILD ABUSE AS AN AGGRAVATOR. ALL RIGHT. I THINK HE CONSIDERED -- JUST "UNDER TWELVE"? RIGHT. RIGHT. BUT THERE IS STILL THAT ISSUE, AND I KNOW CHIEF JUSTICE ANSTEAD HAS DISCUSSED -- WE APPRECIATE YOUR CANDOR IN THAT REGARD. THANK YOU. CAN YOU ADDRESS, THEN, THE AGGRAVATOR THAT THE JUDGE FOUND THAT THIS WAS HEINOUS AN ATROCIOUS AND CRUEL? SURE. I DON'T THINK IT WAS HEINOUS AN ATROCIOUS OR CRUEL. I THINK THAT WAS HARMFUL, ALSO. I DON'T THINK THERE WAS COMPETENT SUBSTANTIAL EVIDENCE TO FIND HEINOUS,

6 ATROCIOUS OR CRUEL, AND HERE IS WHY. WHAT VICTIM ARE WE TALKING ABOUT NOW? IS JEFFREY -- GEOFFREY FLAHERTY, THE NINE-YEAR-OLD CHILD N THIS CASE, THE JUDGE DID AND HAD TO SPECULATE GREATLY AS TO WHAT HAPPENED. DID THE MEDICAL EXAMINER TESTIFY ABOUT THE CIRCUMSTANCES OF THIS CHILD'S DEATH? HE DID. HE TESTIFIED AS TO -- DID THE TRIAL COURT RELY ON THE TESTIMONY? THE TRIAL COURT DID IN PART, BUT ALSO, IN PART, SPECULATED, SUCH AS THAT GEOFFREY WOULD HAVE HEARD THE CHILLING SOUNDS OF THE SHOTGUN SHELLS BEING RACKED INTO THE CHAMBER. THAT IS PURE SPECULATION. THERE WAS NO EVIDENCE OFFERED IN THIS TRIAL, TO INDICATE THAT GEOFFREY COULD HEAR. WAS HE, WAS THERE EVIDENCE IN THIS RECORD THAT INDICATES THAT GEOFFREY WAS AT OR NEAR THE BEDROOM DOOR, AT THE TIME THAT THE MURDERS OF HIS BROTHER AND SISTER AND MOTHER TOOK PLACE? THERE WAS. THERE WAS SOME BLOOD FROM GEOFFREY FOUND IN THE DOORWAY THAT INDICATED, AND THAT IS WHY THE MEDICAL EXAMINER OR THE FORENSIC PATHOLOGIST TESTIFIED THAT, IN HIS OPINION, GEOFFREY WAS NEAR THE DOORWAY, BECAUSE SOME OF HIS BLOOD WAS FOUND THEIR. HOWEVER, THE TRIAL JUDGE DID SPECULATE AS TO WHETHER GEOFFREY FLAHERTY SAW THE SHOT, THE BARREL OF THE SHOTGUN POINTING AT HIM, WHETHER GEOFFREY FLAHERTY SAW THE DEFENDANT FOLLOW HIM, AS GEOFFREY ENTERED THE LIVING ROOM AREA, WHETHER HE TURNED AROUND AND SAW -- WE DO KNOW THAT GEOFFREY, AT ONE POINT, WAS AT THE DOOR TO THE BEDROOM, BUT HE WAS ACTUALLY FOUND IN THE LIVING ROOM NEAR THE COFFEE TABLE AND COUCH, I BELIEVE. CORRECT? THAT'S CORRECT. AND SO HE MOVED FROM THAT AREA TO THE OTHER AREA, AFTER THE MURDERS OF THE OTHERS TOOK PLACE. YES. HE DID. ARE YOU SUGGESTING YOU MUST HAVE ABSOLUTE PROOF OF EACH MOVEMENT TO COME TO THESE CONCLUSIONS? DOES COMMON SENSE NOT HAVE A ROLE OR DO WE THROW THAT OUT THE WINDOW? WE HAVE A SMALL CHILD. WE HAVE HIS BROTHERS AND SISTERS BEING MURDERED, BEING SHOT, THE MOTHER BEING SHOT. IT IS IN CLOSE PROXIMITY. DO WE NEED TO HAVE PROOF THAT THE CHILD WAS A HEARING CHILD AND NOT DEAF, TO HAVE COMMON SENSE THAT HE HEARD THE SHOTGUN, THE PISTOL GRIP SHOTGUN, THE FIRING OF THAT? HOW FAR DOES THIS GO? HOW MUCH EVIDENCE DO WE NEED, UNDER THAT CIRCUMSTANCE? I THINK OBVIOUSLY THE BURDEN IS ON THE STATE TO PROVE BEYOND A REASONABLE DOUBT THIS AGGRAVATOR, AND I DON'T THINK THEY CAN PROVE IT BEYOND A REASONABLE DOUBT, WHEN THEY ARE FORCING OR ASKING THE TRIAL JUDGE TO SPECULATE ON A NUMBER OF THINGS AS TO WHAT HAPPENED. WHAT WE DO KNOW -- IS IT SPECULATION THAT A CHILD IN A HOME WOULD HEAR A SHOTGUN SOUND AS IS BEING

7 DISCHARGED? CERTAINLY THERE IS PROOF OF IT BEING DISCHARGED, THE SHOTGUN, IN THE HOME? YES. I THINK IT IS SPECULATION, WHEN THERE IS ABSOLUTELY NO EVIDENCE OFFERED AS TO WHETHER THIS CHILD IS DEAF OR NOT AND WHETHER HE CAN HEAR. I THINK THAT IS SPECULATION. ANOTHER ISSUE I WOULD LIKE TO DIRECT THE COURT'S ATTENTION TO IS THE IMPROPER STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENT, AND I HAVE ABOUT 30 SECONDS LEFT AND I AM GOING TO SIT DOWN FOR REBUTTAL, BUT I WOULD LIKE TO TALK ABOUT THE BURDEN SHIFTING COMMENTS THAT HE MADE. THERE WERE THREE INSTANCES IN HIS CLOSING WHEN HE SAID, REGARDING THE 911 CALL, HE SAID THAT THESE PEOPLE CAME IN HERE AND TOLD YOU THE TRUTH. HE SAID THAT THREE TIMES. HOW MUCH WAS THAT OBJECTED TO? THOSE COMMENTS WERE OBJECTED TO. THE BURDEN-SHIFTING COMMENT, THE VOUCHING FOR CREDIBILITY COMMENT AND THE GOLDEN RULE COMMENT, AND I WILL SIT DOWN AND RESERVE THE REMAINING TEN MINUTES I HAVE FOR REBUTTAL. THANK YOU. CHIEF JUSTICE: THANK YOU VERY MUCH. COUNSEL. MAY IT PLEASE THE COURT. CHARMAINE MILLSAPS FOR THE STATE. I AM GOING TO TALK ABOUT THE EXACT SAME ISSUES THAT OPPOSING COUNSEL TALKED ABOUT. THE FIRST WAS A TELEPHONE CALL. THE TELEPHONE CALL, RENEE CALLED HER BEST FRIEND, WHO LIVED OUT IN WASHINGTON, AND SAID WE HAVE JUST HAD A FIGHT. NOW, REMEMBER THAT FIRST STATEMENT WAS NOT ELICITED IN RESPONSE TO A QUESTION. THAT IS WHAT RENEE SAID TO THE VICTIM. THAT IS WHAT WE RELIED ON, THAT FIRST EXCITED UTTERANCE, SPONTANEOUS STATEMENT. HOW DO WE KNOW WHEN THE STATEMENT WAS MADE, IN RELATIONSHIP TO WHEN, ASSUMING THERE WAS A FIGHT, HOW DO WE KNOW WHEN THE STATEMENT WAS MADE IN RELATION SHIP -- WE KNOW IT WAS AFTER THE FIGHT, PRESUMABLY, BUT HOW MUCH TIME? HOW DO WE KNOW HOW MUCH TIME ELAPSED BETWEEN THOSE TWO? BECAUSE YOU ARE GETTING READY TO TALK ABOUT EXCITED UTTERANCE, AND DON'T YOU HAVE TO STILL BE UNDER THE EFFECTS OF WHATEVER WAS THE STARTLING EVENT, IN ORDER TO GET INTO THE EXCITED UTTERANCE? YES, BUT REMEMBER THE STATEMENT, ITSELF, CONTAINS A TIME. WE JUST HAD A FIGHT. AND MOREOVER, YOUR HONOR, WHAT WE DID WAS WE TIMED THIS BETWEEN TWO PHONE CALLS. THE FIRST PHONE CALL TO ON CO-WORKER OCCURS AT 7:00 TO 7:05 AND THIS OCCURRED EXACTLY AT 7:30. DID YOU HAVE THE TELEPHONE RECORDS? NO. THE, BOTH OF THEM TESTIFIED WHY THEY KNEW IT WAS THE TIME. THE CO-WORKER SAID A TV SHOW HAD JUST STARTED, AND FRAN PRUITT, WHO SHE CALLED THE BEST FRIEND OUT IN WASHINGTON, KNEW THAT FROM HER TIMER ID, CALLER ID, THAT IT WAS 7:30. SO WE HAVE GOT TWO PHONE CALLS, AND THEN WE HAVE TO HAVE A FIGHT IN BETWEEN, SO THEY HAVE TO HAVE OCCURRED AT THE ABSOLUTE OUTMOST, WITHIN THE SAME HALF-HOUR. WE HAVE A PHONE CALL, A FIGHT, AND THEN A SECOND PHONE CALL, ALL OF THAT OCCURRING WITHIN THE SAME HALF-HOUR. MOREOVER, THE STATEMENT, ITSELF, CONTAINS A "WE JUST HAD A FIGHT." SO THAT FIRST STATEMENT OUT OF RENEE IS AN EXCITED UTTERANCE. SECONDLY, THERE WAS, MOTIVE IS JUST NOT AN ELEMENT OF THE CRIME. WE COULD HAVE PROVED THIS. THIS IS GOING MORE TOWARD HARMLESS. WE COULD HAVE PROVED THIS. WAS THAT, YOU SAID THAT WAS THE ONLY STATEMENT THAT WAS USED IN THE CASE? NO. I AM SAYING THAT IS THE MAJOR ONE THAT WAS USED. THERE WERE FOUR OR FIVE

8 STATEMENTS. WHAT WERE THE OTHER STATEMENTS? NOW, NONE OF THE STATEMENTS TALK ABOUT THE CONTENT OF THE FIGHT. WE, TO THIS DAY, DON'T KNOW WHAT THEY WERE FIGHTING ABOUT. SHE SAID "I HAVE JUST HAD A FIGHT WITH JEFF." AND THEN IN RESPONSE TO QUESTIONS, SHE SAID HE HAS LEFT. HE HAS TAKEN ALL HIS STUFF, PUT IT IN THE TRUNK, AND HE IS GONE. BUT THEY ARE PRETTY INNOCUOUS. THE ONE THAT WE REALLY -- HOW IS THAT, AGAIN, ASSUMING THAT WE HAVE GOT TO GIVE THE BENEFIT, IF THIS WAS ERRONEOUS, IF THE SUBSEQUENT STATEMENTS, IT SEEMS TO ME, THAT SAYING WE JUST HAD A FIGHT, I MEAN, ANY PEOPLE HAVE FIGHTS EVERYDAY, BUT SOMEONE PACKING THEIR BAGS AND LEAVING AMPLIFIES A LOT MORE ABOUT THE CIRCUMSTANCES, EVEN IF WE DON'T KNOW WHY THEY HAD A FIGHT, THAT THIS WAS SOMETHING THAT WAS SIGNIFICANT, SO WHY WOULDN'T THAT, ASSUMING IF THESE OTHER STATEMENTS ARE CERTAINLY NOT EXCITED UTTERANCES, WHY ISN'T THAT JUST AS PROBLEMATIC, IN TERMS OF THE JURY HEARING THAT, AND NOT REALLY, AND THAT BEING HEARSAY? WELL, REMEMBER WE HAVE A WHOLE BUNCH OF PEOPLE TESTIFYING HE WAS DOWN AT THE BAR, SO WE KNOW HE LEFT TO GO DOWN TO THE BAR. MOREOVER, WE HAVE HIS WHITE DODGE PICKUP TRUCK WAS PACKED WITH HIS BELONGINGS. SO WE WOULD HAVE KNOWN THAT FROM THE FACT THAT THE TRUCK CONTAINED HIS CLOTHES AND HIS OTHER GUNS, AS WELL, SO WE HAVE A CUMULATIVE EVIDENCE AS TO ALL OF THOSE AS WELL, YOUR HONOR. BUT MOREOVER, THIS REALLY GOES JUST TO MOTIVE, AND MOTIVE IS NOT AN ELEMENT OF FIRST-DEGREE MURDER. WHY DID, AS THE DEFENSE ARGUES, THE PROSECUTOR USED THIS IN OPENING AND CLOSING AND MADE IT A FEATURE OF THE CASE, AND SO IF IT IS NOT THAT IMPORTANT, WHY WAS THE PROSECUTOR RELYING ON IT SO HEAVILY? WELL, PROSECUTORS LIKE TO PROVE MOTIVE, BUT THEY ARE NOT REQUIRED TO. MOREOVER, YOUR HONOR, REALLY, IN THE OPENING AND CLOSING, HE FOCUSES MORE ON THE FACT THERE WAS A FIGHT. HE GETS THAT FROM TWO SOURCES, THE STATEMENT DOWN AT THE BARTENDER, DOWN AT THE, SAYING THAT HE HAD SAID THAT TO ANOTHER PATRON THAT RENEE IS PISSED OFF AT HIM. ALL RIGHT. SO WHEN THE PROSECUTOR IS TALKING ABOUT THEY HAD A FIGHT, HE IS GETTING THAT FROM BOTH SOURCES, ONE OF WHICH IS PROPER! AND CAME -- WELL, YOU DON'T SEE A DIFFERENCE BETWEEN SOMEONE SAYING SOMEONE IS PISSED OFF AT ME, AND WE HAD A BIG FIGHT? ISN'T THAT, IT IS NOT THE SAME THING. IT IS NOT THE SAME THING BUT IT IS PRETTY EQUIVALENT. WHEN PEOPLE ARE IN A RELATIONSHIP, AND THEY TALK ABOUT SOMEBODY BEING MAD, WHAT THEY MEAN IS THEY HAD A FIGHT. WELL, WHY WOULDN'T SOMEONE SAYING THAT SHE CALLS, WE HAD A BIG FIGHT, AND HE LEFT, IN TERMS OF THIS BEING, DID THE STATE USE IT AT ALL, TO SHOW THAT THIS WAS PREMEDITATED? IN OTHER WORDS THAT THEY HAD HAD THIS BIG FIGHT, AND THEN THEY, THEN HE LEAVES, AND HE GOES TO THE BAR, AND EVEN THOUGH THEY ARE SAYING HE REALLY GOT HIMSELF INTO THIS, IT WAS A CRIME OF PASSION, THIS, DID THE STATE USE IT AT ALL TO SHOW THE TIME FRAME THAT THIS HAD OCCURRED A SIGNIFICANT PERIOD OF TIME BEFORE, AND YOU KNOW, BECAUSE PREMEDITATION WAS QUESTIONABLE, DID THEY USE IT AT ALL FOR THAT? I WOULD, YES. THERE IS SOME OF THAT, BUT REMEMBER THAT -- JUST, SOME OF THAT, IN TERMS OF THE DeGULIO ERROR, IF THIS IS STANDARD THAT, IF IT WAS AT ALL USED TO PROVE EVIDENCE OF, TO PROVE PREMEDITATION, BECAUSE WE HAVE GOT HERE

9 EVIDENCE OF IF THE FELONY MURDER IS THE AGGRAVATED CHILD ABUSE, AND THE AGGRAVATED CHILD ABUSE IS THE SHOOTING, THERE IS A CONCERN THAT THAT AGGRAVATED CHILD ABUSE, BASED ON FELONY MURDER, IS A PROBLEM, AND THEN YOU ONLY CAN RELY ON PREMEDITATION. REMEMBER THAT WOULD BE A NONHEARSAY USE OF THIS TESTIMONY. IF WE ARE USING THIS PHONE CALL TO ESTABLISH A TIME LINE THAT, IS A NONHEARSAY USE, SO THAT USE WOULD BE PROPER, AND WOULDN'T, IT WOULDN'T BE A PROPER HEARSAY OBJECTION, IF ALL WE ARE DOING IS ESTABLISHING TIME LINE WITH THESE, WITH THIS. AND WHAT IS MORE IS, REALLY, WHEN HE TALKS ABOUT, IN THE CLOSING, WHEN THE PROSECUTOR REALLY USES THIS, HE DOES NOT FOCUS, IT IS REALLY MORE MOTIVE. HE USES THIS MUCH MORE AS MOTIVE. BUT HE USED IT, ALSO, FOR PREMEDITATION? WELL, JUST IN THE SENSE OF A TIME LINE. THEY GET IN A FIGHT AND THEN HE GOES TO THE BAR, BUT REALLY, HIS COMING BACK, HIS PREMEDITATION IS AIMED MUCH MORE AT HE DRIVES BACK TO THE HOUSE. HE BUSTS DOWN THE DOOR. THE PROSECUTOR USES IT ONLY, ALMOST AS AN ANCHOR, TO START THAT ARGUMENT. HE IS NOT REALLY SAYING THAT THE, HE USED THE TIME SINCE THE FIGHT, BUT THAT IS A NONHEARSAY USE, AND THAT WOULD BE PROPER. WAS THE AGGRAVATED CHILD ABUSE USED AS A FACTOR FOR THE FELONY MURDER? THE AGGRAVATED CHILD ABUSE WAS THE UNDERLYING FELONY CHARGED, TO GET TO FELONY MURDER. THAT WAS THE UNDERLYING FELONY, YES, YOUR HONOR. IF WE FIND THAT AGGRAVATED CHILD ABUSE CANNOT BE BASED ON THE SAME, THE SHOOTING FORM THE BASIS FOR THE MURDER AND THE AGGRAVATED CHILD ABUSE, AND IF THAT IS NOT A PROPER SEPARATE FELONY, THEN DOES THE STATE HAVE A PROBLEM WITH THE VERDICT OR, BECAUSE IT IS A GENERAL VERDICT, AND SO WE DON'T KNOW WHETHER IT WAS BASED ON PREMEDITATED MURDER OR FELONY MURDER, THAT THE DEFENSE CANNOT PREVAIL ON THAT BASIS? OKAY. BUT LET'S SEPARATE. REMEMBER SINGLE GUNSHOTS WERE USED AS THE BASIS FOR THE AGGRAVATED FELONY FOR AMANDA AND LOGAN, BUT IN GEOFFREY'S CASE WE HAVE TWO GUNSHOTS. HE WAS SHOT FIRST, IN THE CHEST, AND THEN HE WAS SHOT THROUGH HIS RIGHT EAR WITH THE SHOTGUN, SO WE HAVE TWO GUNSHOTS IN GEOFFREY'S CASE, SO IF YOU ARE GOING TO LOOK AT IT AS YOU NEED AN INDEPENDENT ACT, WE HAVE TWO INDEPENDENT ACTS IN GEOFFREY'S CASE. WE HAVE TWO GUNSHOTS, NOT JUST A SINGLE GUNSHOT. IF WE TAKE IT TO AGGRAVATED BATTERY IN A REGULAR HOMICIDE, YOU MEAN IF THERE IS SEVERAL GUNSHOTS THAT RESULT IN DEATH, THAT THE STATE COULD CHARGE AGGRAVATED BATTERY AND, BECAUSE THERE IS MORE THAN ONE GUNSHOT? YES. INNINGS. WHEN YOU HAVE MORE THAN ONE GUNSHOT. MILLS AND SOME OF YOUR CASES THAT HINT TOWARD THE MERGER DOCTRINE, ALL INVOLVE SINGLE GUNSHOTS. IF THEY ARE IN CLOSE SUCCESSION, BAM BAM BAM! THE STATE WOULD BE ABLE TO USE IT, THEN, AS AGGRAVATION? WELL, IF THE DOCTRINE IS YOU NEED A SEPARATE FELONY, THAT IS A SEPARATE FELONY. THE FIRST SHOT IS DIFFERENT FROM THE FATAL SHOT. SO THAT IS -- IF YOU HAVE ONE, IF YOU HAVE A GUNSHOT AND THERE IS SOME LINGERING AND THEN THERE IS A SECOND GUNSHOT FIVE MINUTES LATER, THAT KILLS HIM, THAT IS ONE SITUATION.

10 THAT FIRST -- THE OTHER IS A HYPOTHETICAL I JUST GAVE YOU, THREE SHOTS IN RAPID SUCCESSION. DOES IT MAKE ANY DIFFERENCE? THE FIRST TWO ARE INDEPENDENT ACTS THEN. YES. BUT, YOUR HONOR, MORE IMPORTANTLY, AGGRAVATED BATTERY, YOUR HYPODOES NOT COME UP IN THE -- YOUR HYPO, DOES NOT COME UP IN THE STATE OF FLORIDA, BECAUSE AGGRAVATED BATTERY MAY NOT BE USED AS THE UNDERLYING FELONY. ALL RIGHT. THE LEGISLATURE HAS AMENDED AND ALLOWED IT IN THE UNIQUE CASE OF AGGRAVATED BATTERY ON A CHILD. WE DO NOT HAVE A MERGER PROBLEM IN FLORIDA, OKAY, AND WE DON'T HAVE IT EVEN AFTER THEY HAVE AMENDED IT, BECAUSE IT IS AN UNIQUE CRIME. IT HAS TO BE AN AGGRAVATED BATTERY ON A CHILD. AND THE LEGISLATURE PURPOSELY AMENDED THIS STATUTE, KNOWING FULL GOOD AND WELL THAT THIS WAS OFTEN A FATAL BLOW TO THE CHILD. MANY OTHER COURTS AROUND THE COUNTRY HAVE BEEN SPACED WITH THIS -- HAVE BEEN FACED WITH THIS EXACT PROBLEM, SINGLE BLOWS OR GUNSHOTS SERVE AS THE AGGRAVATED FELONY TO GET TO THE ABUSE AFTER CHILD AND THEN THE FELONY MURDER, ALL AFFIRMED. BUT ISN'T THERE SOMETHING WRONG, WHEN IT IS THE UNDERLYING FELONY THAT KILLED HIM. ISN'T THERE A PROBLEM THERE? NO, YOUR HONOR. THE MERGER DOCTRINE IS NOT A CONSTITUTIONAL DOCTRINE. IT IS A DOCTRINE OF STATUTORY CONSTRUCTION, AND WHEN THE LEGISLATURE DIRECTLY SAYS THEY WANT TO DO THIS, THERE IS NO ISSUE ABOUT WHETHER THEY INTENDED THIS RESULT OR NOT. THEY DID. AND THIS COURT IS, HAS COME, IN DONALDSON, THE LATEST CASE, THAT WAS A CAPITAL CASE, BASED ON A SINGLE, BASED ON GUNSHOTS TO TWO CHILDREN, WHERE AGGRAVATED BATTERY SERVED AS THE UNDERLYING FELONY TO GET TO FELONY MURDER. IF YOU KILL A CHILD, YOU ALWAYS HAVE THAT AGGRAVATOR? NO. IT WON'T BE AUTOMATIC. THERE ARE MANY DIFFERENT DEGREES OF CHILD ABUSE. NOT ALL CHILD ABUSE THAT RESULTS IN THE DEATH OF A CHILD, EVEN IF IT RESULTS IN THE DEATH OF A CHILD, IS TRULY AGGRAVATED CHILD ABUSE. WHEN YOU NEGLECT THAT RESULTS IN THE DEATH OF A CHILD, IT IS A DIFFERENT SUBSECTION. THE LEGISLATURE HAS DIVIDED IT OUT, BUT, YES, THEY HAVE DECIDED THAT WE WERE UNDER CHARGING FOR THE DEATH OF CHILDREN, AND THEY WANTED THIS TO BE FIRST-DEGREE FELONY MURDER. WE MOVE TO THAT ISSUE AFTER YOUR DISCUSSION OF THE FIRST ONE. I WOULD LIKE TO RECAP ON THE ISSUE OF THE FIRST ONE, AND IF I UNDERSTAND CORRECTLY, THIS EVIDENCE OF THE PHONE CALL WAS REALLY CUMULATIVE, AND THE STATEMENT TO THE BAR, AND THAT THERE WAS REALLY NO CONTENT TO THE CONVERSATION, OTHER THAN THE SAME INFORMATION THAT WAS MADE AT THE BAR. IS THAT CORRECT? YES, YOUR HONOR. THOSE ARE EQUIVALENT STATEMENTS, AND WHAT'S MORE, THE BARTENDER EVEN TESTIFIED BEFORE FRAN PRUITT DID, THIS INFORMATION WAS BEFORE THE JURY FROM ANOTHER SOURCE, EVEN BEFORE THE TESTIMONY ABOUT THE PHONE CALL, NOT THAT TIMING MATTERS, BUT THE JURY HAD THIS INFORMATION FROM ANOTHER SOURCE. WHAT IS MORE, YOUR HONOR, IT IS PRETTY COMMON SENSE, TOO, IF YOU HAVE A FAMILY, AND HE IS KILLING HIS GIRLFRIEND AND THREE CHILDREN, THAT YOU CAN PRETTY MUCH GUESS THAT A FIGHT WENT ON. I THINK THAT IS WHAT THE JURY THOUGHT ANYWAY, WITHOUT THIS EVIDENCE. WASN'T THERE AN OBJECTION MADE TO THE TESTIMONY AT TRIAL, AND DIDN'T THE TRIAL JUDGE LIMIT WHAT COULD COME IN THROUGH THIS WITNESS? DID HE LIMIT THE CONTENTS OF THAT PARTICULAR CONVERSATION BETWEEN RENEE AND THE FRIEND IN WASHINGTON?

11 THE EXCITED UTTERANCE ISSUE IS PRESERVED. HE DID OBJECT TO THIS TESTIMONY. I UNDERSTAND, BUT WAS THERE ANY LIMITATION PLACED ON WHAT THE WITNESS COULD TESTIFY, CONCERNING THAT CONVERSATION? THE PROSECUTOR LIMITED HIMSELF. THAT IS MORE HOW I READ THE RECORD. THE PROSECUTOR SAID I JUST WANT THE FIGHT. SO, REALLY, THE PROSECUTOR LIMITED IT, HIMSELF. IT NEVER CAME UP IN THE SENSE THAT IT WAS NOT CONTESTED. THE PROSECUTOR, THERE WERE JUST A FEW STATEMENTS THAT THE PROSECUTOR WANTED. HE DID NOT EVEN ATTEMPT TO BRING IN WHAT I WOULD CALL SUBSTANTIVE CONTENT ABOUT WHAT THEY FOUGHT ABOUT OR ANYTHING LIKE THAT. THE PROSECUTOR JUST WANTED THE FEW STATEMENTS AT THE BEGINNING OF THE CONVERSATION. SO IT, THE END RESULT WAS IT WAS LIMITED TO THOSE FEW COMMENTS. CAN YOU ADDRESS THE HAC AGGRAVATOR AND HOW THE FACTS OF THIS CASE SQUARE WITH OUR JURISPRUDENCE ON AND PRIVATEING -- ON APPLYING THE HAC AGGRAVATOR? YOUR HONOR, THE TRIAL COURT REALLY RELIED ON TWO SEPARATE THEORIES OF HAC. THE, AND THE HAC GOES JUST TO THE MURDER OF GEOFFREY NOT TO AMANDA OR LOGAN. IT WAS FOUND ONLY AS TO GEOFFREY. THE TWO THEORIES WERE THAT HE, THE EMOTIONAL TRAUMA OF SEEING YOUR MOTHER, YOUNGER BROTHER, YOUNGER SISTER KILLED. THAT WAS ONE. BUT THE ONE HE REALLY RELIES ON, MUCH MORE, IS THE FACT THAT GEOFFREY, HIMSELF, WAS SHOT TWICE. IT IS THE PAIN. HE WAS CLEARLY CONSCIOUS. WE HAD MEDICAL TESTIMONY THAT HE WAS CONSCIOUS AND IN PAIN, DURING THE TIME BETWEEN THE FIRST SHOT AND THE SECOND SHOT. SO THERE ARE REALLY TWO THEORIES OF HAC HERE. HOW LONG WAS IT BETWEEN THE FIRST AND SECOND SHOT? NOT VERY LONG, YOUR HONOR. TEN SECONDS. WHAT WAS THE SECOND SHOT? TEN SECONDS IS WHAT, THERE WAS A VERY SHORT PERIOD OF TIME. REALLY JUST TO GO, HE GOES A FEW FEET. AND HOW LONG DID THIS WHOLE, FROM THE TIME THE SIBLINGS WERE SHOT AND GEOFFREY WAS SHOT, HOW LONG TRANSPIRED BETWEEN THAT? I DON'T REMEMBER ANY TESTIMONY IN THE RECORD ABOUT HOW LONG ALL THAT WOULD HAVE TAKEN. WE, THIS WAS VERY QUICK, YOUR HONOR. SO WE WOULD, IF WE UPHELD THE HAC AGGRAVATOR IN THIS CASE, WOULD THERE BE ANY TIME WHERE THERE IS MULTIPLE VICTIMS, WHERE THERE IS A DELAY BETWEEN SHOOTING THE FIRST AND THE SECOND OR THIRD, THAT THERE WOULDN'T BE HAC? WELL, REMEMBER HERE WE HAVE FOUR VICTIMS. HE IS NUMBER FOUR. YOUR HONOR, BASICALLY, IF ONE PERSON IS SHOT IN FRONT OF ANOTHER, MUCH LESS BEING VICTIM NUMBER FOUR, YES, THE EMOTIONAL TERROR, YOU KNOW YOU ARE GOING TO DIE. SO THE ANSWER IS YES. THE ANSWER IS YES, YOUR HONOR. WHAT I AM, IN THIS CASE, AND IT SEEMS THAT THIS HAS, MAYBE IT IS A QUESTION FOR THE LEGISLATURE, BUT IT STRIKES ME, THEN, RATHER THAN TRYING TO BE RELYING ON SOMETHING LIKE HAC, WHAT IS IN OUR JURISPRUDENCE, TO LOOK AT THE FACT THAT WHAT HAPPENED HERE

12 WERE FOUR HUMAN BEINGS WERE KILLED, AND ALTHOUGH WE TALK ABOUT, WELL, THERE IS A PRIOR VIOLENT FELONY FOR EACH ONE, IN FACT, WHY ISN'T, AND THIS IS A FRIENDLY QUESTION FOR YOU, THAT, THE FACT THAT THESE ARE, THERE ARE FOUR SEPARATE VICTIMS IN ONE SHOOTING INCIDENT, THE KIND OF AGGRAVATION THAT, RATHER, YOU KNOW, IF YOU HAVE A PRIOR VIOLENT FELONY AND IT IS ANOTHER MURDER THAT, THAT IS A LITTLE DIFFERENT THAN IF THIS WAS IN THE COURSE AFTER ROBBERY. DO WE HAVE ANYTHING IN OUR JURISPRUDENCE THAT REALLY SAYS THIS IS A, YOU KNOW, IF YOU SAY THERE WERE TEN VICTIMS THAT WERE KILLED, I MEAN, SHOULDN'T WE BE EVALUATING THAT QUALITATIVELY AS BEING FAR MORE SIGNIFICANT AGGRAVATION THAN THE CASE WHERE THERE IS, SAY, ONE VICTIM? ABSOLUTELY, YOUR HONOR. I DO THINK THAT -- THE CASE LAW THAT DISCUSSES THAT. NO, BUT I DO KNOW THAT IN OTHER STATES, FOR INSTANCE, ONE OF, IT IS A COMMON AGGRAVATOR FROM THE MODEL PENAL CODE, THAT YOU LOOK AT THE FACT THAT THERE ARE MULTIPLE VICTIMS. IT SEEMS WHAT WE HAVE DONE IS WE HAVE SORT OF SUBSUMED THAT CONCEPT IN THE PRIOR VIOLENT FELONIES, OKAY, SO IT WOULD COUNT THAT WAY, BUT THAT IS THE STATE'S POSITION, YOUR HONOR, WHEN YOU KILL TEN PEOPLE OR LET'S JUST STICK WITH THIS, WHEN YOU KILL FOUR PEOPLE, THAT IS PROPERLY, UNDER THE PRIOR VIOLENT FELONY, CONSIDERED AS PART OF, THEY REALLY SHOULD BE THREE PRIOR VIOLENT, PRIOR VIOLENT, AND PRIOR VIOLENT, BECAUSE EACH ONE OF THOSE SHOULD COUNT. BUT ISN'T THAT, THEN, A DIFFERENT ANALYSIS FROM WHETHER IT IS A MURDER THAT WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL? YES, YOUR HONOR. I AM NOT RELYING ON THAT FACT TO PROVE HAC, THE TWO THEORIES FOR HAC ARE THE EMOTIONAL TERROR OF SEEING AND TRAUMA OF SEEING YOUR MOTHER AND BROTHER AND SISTER SHOT, OR JUST FACT THAT HE WAS SHOT TWICE. THOSE ARE THE TWO THEORIES OF HAC. DID THE MEDICAL EXAMINER LAY OUT A SEQUENCE OF EVENTS? YES, HE DID. WOULD YOU RECOUNT THAT FOR US, PLEASE. YES. HE, FOR, HE TESTIFIES THREE TYPES IN THIS TRIAL. HE TESTIFIES, BOTH, THE GUILT, TWICE AT THE GUILT, AND THEN AT THE PENALTY. THEY COULD NOT BE EXACTLY CERTAIN, EXACTLY WHAT THE ORDER WAS, BUT HIS BEST, HIS REASONABLE MEDICAL GUESS, WELL, EXPLANATION WAS RENEE WAS SHOT FIRST, AND HE CAME TO THAT EXPLANATION, BECAUSE RENEE WAS STILL ON THE BED. IF SOMEBODY ELSE HAD BEEN SHOT FIRST, HE WOULD HAVE TRIED TO GET UP. THEN AMANDA -- IF SOMEBODY ELSE WAS SHOT FIRST, SHE WOULD HAVE TRIED TO GET UP. AMANDA WAS SHOT SECOND AND THEN LOGAN WAS SHOT THIRD. THOSE TWO, WHETHER AMANDA OR LOGAN WAS SHOT AND IN WHICH ORDER, THAT WAS THE MOST DIFFICULT FOR HIM TO DETERMINE, AND THEN LAST, GEOFFREY WAS SHOT, AND THAT WAS HIS TESTIMONY, THAT VARIOUS THINGS, INCLUDING A PICTURE FRAME THAT GOT BROKEN AND THE BLOOD OF AMANDA GOT INSIDE IT, BUT RENEE'S BLOOD WAS ONLY ON THE OUTSIDE OF IT. THEY DID A RECONSTRUCTION, AND THAT WAS THE ORDER. IT WAS RENEE WAS SHOT FIRST WHILE SHE WAS ON THE BED. THEN AMANDA, AND THEN LOGAN, AND THEN GEOFFREY, WHO WAS STANDING AT THE, RIGHT OUTSIDE THE DOOR OF THE MASTER BEDROOM. YOU STARTED OUT BY CANDIDLY SAYING THAT HE COULDN'T BE ABSOLUTELY CERTAIN IN OFFERING THESE OPINIONS. HOW DOES THAT SQUARE WITH THE REQUIREMENT THAT THERE BE A FINDING BEYOND A REASONABLE DOUBT, ABOUT THE UNDERLYING FACTS OF THE AGGRAVATOR.

13 IN OTHER WORDS JUST HELP ME -- OKAY. BUT SEE THE ORDER HERE REALLY DOESN'T MATTER, IN TERMS OF NONE OF, THE ORDER DOES NOT, PHONES -- FROM WHAT GEOFFREY SAW, IT DOESN'T MATTER WHETHER AMANDA WAS SHOT FIRST OR LOGAN WAS SHOT FIRST. BUT IF HE WAS SHOT FIRST, IT WOULD MATTER, RIGHT? ONLY ON THE FIRST THEORY OF HAC. THE SECOND THEORY, WHICH IS THE ONE THE TRIAL COURT RELIED MORE ON, THE FACT THAT JEFFREY WAS -- THAT GEOFFREY WAS SHOT TWICE, WAS CONSCIOUS AND IN PAIN FROM THE FIRST SHOT, AND THEN AS HE WAS TRYING TO FLEE, WAS SHOT A SECOND TIME, WAS REALLY THE MAJOR WAY THE TRIAL COURT GOT TO HAC. SO THAT WOULD ONLY MATTER, THAT WOULD NOT MATTER, THAT WOULD ONLY MATTER FOR THE EMOTIONAL TERROR OF SEEING YOUR MOTHER THEORY, OKAY, AND THAT DOES NOT SEEM VERY REASONABLE EITHER, YOUR HONOR. REMEMBER, AS TO GEOFFREY BEING SHOT FIRST, YOU WOULD HAVE TO BELIEVE THAT THE MOTHER LAID, STAYED LYING DOWN. DIDN'T EVEN, SOMEBODY SHOOTS A CHILD WITH A SHOTGUN, AND SHE JUST LIES ON THE BED? I THOUGHT THAT THERE WAS MORE THAN JUST SPECULATION ABOUT THIS. I THOUGHT THAT THE MEDICAL EXAMINER GAVE EXPERT TESTIMONY, WITHIN A REASONABLE DEGREE OF HIS SCIENTIFIC CERTAINTY. YES, YOUR HONOR. HE DID, ABOUT, AND I AM HIM TELLING YOU WHY HE CAME TO THOSE CONCLUSIONS. THOSE WERE HIS CONCLUSIONS. BASED UPON BLOOD SPLATTERING AND ALL OF THESE THINGS. YES. AND THAT IS WHY HE THINKS HAM AND AN AND LOGAN, BUT -- HE THINKS AMANDA AND LOGAN, BUT HE COULD NOT BE SURE AND HE WAS VERY FORTUNATE RIGHT THAT I CAN'T TELL YOU WHETHER IT WAS AMANDA OR LOGAN, BUT HE DID SAY THIS, IT SEEMS MUCH MORE LIKELY THAT AMANDA WAS SHOT RIGHT AFTER HER MOTHER, BASED ON THE BLOOD. BUT THE KEY HERE IS WITH REGARD TO GEOFFREY. IT IS NOT THE OTHER TWO, WITH REGARD TO THE HAC, AND WHAT IS THE TESTIMONY WITH REGARD TO GEOFFREY AND THE TIMING, THE SEQUENCE THEN, BECAUSE WE HAVE CASES SUCH AS FARINA, AND IF IT DOESN'T APPLY, THEN WE NEED TO KNOW THAT AS WELL. DID THE MEDICAL EXAMINER PLACE THE SEQUENCING, WITH HIS EXPERT TESTIMONY -- YES, HE DID, AND HE SAID IT WAS RENEE AND THEN AMANDA, LOGAN, AND THEN LAST IT WAS GEOFFREY. GEOFFREY WAS SHOT LAST, ACCORDING TO HIS EXPERT MEDICAL TESTIMONY. THAT WAS HIS TESTIMONY. YOUR HONOR, ANY OF THE, HIS AMBIGUITY WENT MUCH MORE TO AMANDA AND LOGAN, WHICH ONE WAS SHOT, OF THOSE TWO. OKAY. BUT THAT DOES NOT MATTER, AS TO THE HAC, AS TO GEOFFREY. YOU SAID THAT THE TRIAL COURT RELIED MORE ON THE FACT THAT GEOFFREY WAS SHOT TWICE. THAT IS HOW I READ THE ORDER, YES, YOUR HONOR. DON'T WE HAVE CASES THAT HOLD THAT HAC DOES NOT APPLY SIMPLY BECAUSE SOMEBODY IS SHOT TWICE BEFORE THEY DIE? OKAY, BUT WE HAVE GOT THE AMOUNT OF TIME. WE HAVE GOT THE AMOUNT OF TIME IN BETWEEN THERE. HE IS CLEARLY CONSCIOUS. IT IS A, IT IS A MASSIVE WOUND TO HIS CHESS. -TO HIS CHEST. HE IS ATTEMPTING TO FLEE. SO HIS, AND WE HAD EXPERT MEDICAL TESTIMONY THAT HE WAS IN PAIN, THAT THAT WAS A VERY MASSIVE WOUND TO HIS CHEST. IT DIDN'T GET ANY OF

14 THE VITAL ORGANS, BUT IT WAS MASSIVE AMOUNTS OF BLOOD TO HIS CHEST FROM AN M.A. SBERG 12 GAUGE PISTOL-GRIP SHOTGUN, SO THIS WAS A VERY DEADLY WEAPON, YOUR HONOR. IF SOMEBODY DOESN'T, AND ARE WE REALLY GETTING TO THE POINT THAT, OF SAYING IF SOMEONE DOESN'T DIE IMMEDIATELY FROM A GUNSHOT WOUND THAT, THAT WOULD BE HAC? I MEAN, DOESN'T, REALIZING THERE IS NOT A SPECIFIC INTENT ELEMENT IN HAC, WHAT ABOUT ALL OUR CASES THAT SAY THAT, FROM, THAT THE DEFENDANT HAS TO HAVE ACTED IN EITHER INTENTIONALLY OR IN UTTER DISREGARD FOR THE CIRCUMSTANCES, WHATEVER THAT STATEMENT IS HAD, THAT THERE IS SOME LEVEL THAT THE DEFENDANT HAS TO HAVE, WHETHER THEY INTENDED TO TORTURE, THAT THEY HAD A, SOME LEVEL OF ACTING IN UTTER INDIFFERENCE TO THE PAIN OR SUFFERING OF ANOTHER INDIVIDUAL. OKAY. BUT HAC IS DETERMINED FROM THE VICTIM'S POINT OF VIEW. ARE YOU SAY AGO THAT OUR CASE LAW HAS EVOLVED TO WHERE, IF YOU READ DIXON, AND WHERE HAC WAS INTENDED TO NARROW THE CLASS OF HOMICIDES THAT WOULD QUALIFY FOR THE ULTIMATE PENALTY, THAT IS DEATH, THAT THERE IS NO FOCUS AT ALL ON WHETHER THE DEFENDANT INTENDED OR ENJOYED OR ACTED IN UTTER INDIFFERENCE TO THE SUFFERING OF ANOTHER HUMAN BEING, THAT THAT IS ABSENT NOW, FROM OUR CONSIDERATION? THAT IS HOW I READ YOUR CASE LAW, THAT IT IS MORE, IT IS NOT THE DEFENDANT'S INTENT TO MAKE THE VICTIM SUFFER. IT IS JUST THAT THE VICTIM DID SUFFER. IF THE DEFENDANT DOESN'T INTEND THAT, BUT THE SUFFERING STILL OCCURS, THAT IS HAC. SO THAT IF A DEFENDANT IN A HOUSE DOESN'T KNOW SOMEONE, SAY, IS IN ANOTHER ROOM, DOESN'T KNOW IT AT ALL, AND SHOOTS SOMEBODY, BUT THEN FINDS OUT AFTERWARDS A PERSON WAS THERE, THAT IS GOING TO BE ENOUGH FOR HAC, IF THAT OTHER VICTIM HAS BEEN KILLED? THAT DOESN'T EVEN SOUND TO ME LIKE YOU ARE, THAT SOUNDS TO ME MORE LIKE SECOND- DEGREE MURDER, UNDER YOUR HYPO. WHAT ABOUT SOMETHING WHERE HE JUST LEAVES SOMEBODY, AND NO, I DIDN'T ENJOY IT, BUT IN FACT THE VICTIM SUFFERED A LOT. THAT IS MORE HOW I SEE THE CASE LAW DEVELOPING. IS THE KEY WORD TORTUROUS? I MEAN, STARTING WITH DIXON, IT TALKS ABOUT DEATH ENDURED THROUGH TORTURE, DOES IT NOT? YES, YOUR HONOR. THAT THAT IS THE RECURRING, AND IS THAT THE ESSENCE OF HAC, THAT SOMEBODY IS TORTURED BEFORE THEY ARE KILLED? TORTURE, IN THE SENSE OF PAIN AND SUFFERING, YES, YOUR HONOR. THE WORD TORTURE WAS USED FROM THE OUTSET, AND THAT, TO DESCRIBE SORT OF THAT THIS WAS INTENDED TO BE THE CLASSIC CASE AFTER DEATH THROUGH TORTURE, AND SO IS THAT STILL A CORRECT DEFINITION FOR HAC? YES. LOOKING AT THE TORTURE PART FROM THE VICTIM'S POINT OF VIEW. IT ISN'T, I DON'T THINK THE DEFENDANT'S ENJOYMENT OR, I THINK WE NOW LOOK AT THE VICTIM AND WHAT THE VICTIM SUFFERED. BUT ORDINARILY, WHEN WE THINK OF TORTURE, YOU KNOW, THERE IS AN IMAGE THAT WE CALL UP IN OUR VIEW SCREENS, OF SOMEBODY BEING TORTURED, AGAIN, REGARDLESS OF THE INTENT OF THE DEFENDANT, BUT THAT THERE BE, YOU KNOW, LIKE SOMEBODY STRAPPED IN A CHAIR

15 AND CIGARETTES YOU KNOW, AND SOMEBODY THEN SAYING, YOU KNOW, I AM ENJOYING THIS, AND YOU KNOW WHAT IS GOING TO HAPPEN TO YOU. YOU KNOW. WHILE THAT IS TORTURE, I MEAN, AND SO -- I WOULD LIKE TO EXPAND YOUR DEFINITION OF TORTURE TO INCLUDE MENTAL TORTURE. OF IMPENDING DEATH. I AM CONCERNED, IN YOUR ANSWER TO ONE OF THE JUSTICES'S EARLIER QUESTIONS THAT, YOU SEEM TO SAY THAT WE WILL EXPAND THE APPLICATION OF THIS AGGRAVATOR TO ANY INSTANCE IN WHICH SOMEBODY IS CALLED, WHEN THE FIRST SHOT DOESN'T KILL THEM, AND THEIR SHOT -- AND THEY ARE SHOT, THEN, A SECOND SHOT, AND THAT KILLS THEM, THAT NOW THAT IS GOING TO BRING ANY KILLING WHERE THERE IS MORE THAN ONE SHOT AND THE VICTIM IS AWARE THERE IS MORE THAN ONE SHOT, INTO THE HAC CATEGORY, AND IT SEEMS TO ME THAT IS DEVIATING ENTIRELY, FROM THE WAY DIXON DESCRIBED THE INTENT BEHIND THE HACK AGGRAVATOR TO BEGIN -- THE HAC AGGRAVATOR TO BEGIN WITH, SO I GUESS I AM MORE CONCERNED WITH WHERE THIS IS GOING, IF WE ACCEPT THAT DEFINITION. ALL RIGHT. BUT, YOUR HONOR, FOR INSTANCE, I DON'T THINK A GUNSHOT TO THE ARM, YOU KNOW, AND THEN THE SECOND SHOT, WHAT I AM RELYING ON HERE WAS JUST HOW MASSIVE THAT WOUND WAS, AND THE FACT THAT HE HAD TO KNOW HE WAS SERIOUSLY, SERIOUSLY INJURED. IT IS A PARTICULAR INJURY THAT WAS APPLIED HERE. IT IS THE PARTICULAR FACTS OF THIS CASE. IT IS THE, HOW MASSIVE THE GUN WAS. THIS WAS A VERY POWERFUL FUN. -- POWERFUL GUN. IT WAS TO THE CHEST. IT WAS THE AMOUNT OF BLOOD. IT WAS THE PARTICULAR CIRCUMSTANCES. I AM RELYING ON THE FACTS. I DON'T THINK TWO SHOTS WOULD NECESSARILY GET YOU THERE. UNFORTUNATELY THE RED LIGHT HAS GONE ON AND THE TIME, THANK YOU VERY MUCH FOR YOUR EXCHANGE. THANK YOU. CHIEF JUSTICE: COUNSEL. HOW MUCH TIME DOES COUNSEL HAVE, MARSHAL? HOW MUCH? TEN MINUTES. THANK YOU. A STATEMENT BY A VICTIM IN A HOMICIDE CASE IS NOT ADMISSIBLE TO PROVE THE INTENT OF THE DEFENDANT, AND THAT IS BROOKS, SANDOVAL AND KELLY. THOSE CASES STAND FOR THAT. JUSTICE QUINCE YOU ASKED COUNSEL A QUESTION, DON'T YOU HAVE TO STILL BE UNDER THE EVENTS -- THE EFFECTS OF THE EVENT? YES, YOU DO. YOU STILL HAVE TO BE UNDER THE EFFECTS OF THE EVENT, FOR IT TO EVEN BE CONSIDERED. THAT IS ONE OF THE REQUIREMENTS FOR IT TO BE CONSIDERED AN EXCITED UTTERANCE. COUNSEL ADMITTED THAT, TO THIS DAY, WE DON'T KNOW WHAT THEY WERE FIGHTING ABOUT. EXACTLY. WE DON'T KNOW WHAT THE CHARACTERISTICS OF THIS EVENT WERE. LET'S LOOK AT THAT PORTION OF YOUR CASE, WHICH IS ARE YOU OBJECTING TO EVEN THE BEGINNING STATEMENT, WHERE SHE SAYS THIS IS RENEE, AND WE HAVE JUST HAD A FIGHT? MOST DEFINITELY. WHATEVER. THE STATEMENT WAS.

16 MOST DEFINITELY. THIS IS HOW IT WENT. THE PHONE RINGS. HELLO. WE HAVE HAD A FIGHT. MOST DEFINITELY ARE WE OBJECTING TO THAT FIRST STATEMENT, YES, BECAUSE IT IS NOT, IT WAS NOT AN EVENT THAT IS STARTLING ENOUGH TO CAUSE NERVOUS EXCITEMENT. THIS WAS -- HOW DO WE GET TO THAT POINT? WHY WASN'T IT AN EVENT THAT WAS STARTLING? BECAUSE THE STATE HAS TO, THEY HAVE TO, HAVE THE BURDEN TO MAKE A SUFFICIENT SHOWING OF THESE THREE ELEMENTS, FOR IT TO BE AN EXCITED UTTERANCE, AND THE FIRST ONE -- CAN YOU ADD TO THE FACT THAT SHE SAYS "WE JUST HAD A FIGHT", AND SHE WAS BOO-HOOING AND CRYING, CAN WE ADD TO THAT THE FACT THAT THE DEFENDANT IS IN THE BAR, SORT OF MAKING SIMILAR KIND OF STATEMENT THAT WE HAVE, THAT RENEE IS PISSED OFF AT ME, AND WHEN YOU ADD THOSE TOGETHER, DO YOU THEN GET TO A STARTLING EVENT? I MEAN IT SEEMS BOTH OF THEM WAS UNDER SOME KIND OF EMOTIONAL TRAUMA, FROM WHATEVER WENT ON TWO THE -- WENT ON BETWEEN THE TWO OF THEM. YOU USE THE WORD TRAUMA, AND THAT IS INTERESTING, BECAUSE I DON'T THINK THERE WAS TRAUMA. IN THE CASES OF STATE VJANO AND THE CASES THAT WENT ALONG THAT LINE AND -- THE STATE V JANO, ALONG THAT LINE AND I DON'T THINK IT WAS NOT ENOUGH, IN THIS SITUATION, BECAUSE WE DON'T KNOW THE CHARACTERISTICS. WE KNOW ENOUGH ABOUT IT TO KNOW THAT HE GETS HIS CLOTHES AND HIS OTHER PERSONAL ITEMS AND PUT THEM IN THE TRUCK AND THEN GOES OFF TO A BAR. WE DO. SO YOU CAN'T, CAN'T YOU PUT THESE FACTORS TOGETHER AND COME UP WITH THAT THIS WAS A TRAUMATIC EVENT, AT LEAST TO BOTH OF THEM? I DON'T THINK THE STATE WAS ABLE TO IN THIS CASE. I DON'T THINK THEY MADE A SUFFICIENT SHOWING THAT THIS WAS AN EVENT STARTLING ENOUGH TO CAUSE NERVOUS EXCITEMENT. DID IT CAUSE SOME SADNESS? YES. I THINK WE HAVE SOME SADNESS ON THE PART OF MS. FLAHERTY. DOES SADNESS NECESSARILY EQUAL NERVOUS DPIMENT KPOOIMENT? I THINK IT DOES NOT -- NERVOUS EXCITEMENT? I THINK IT DOES NOT. MR. HUTCHINSON SAID RENEE IS PISSED AT ME. HE DIDN'T SAY WE HAD A BIG FIGHT AND THIS IS WHAT IT WAS ALL ABOUT. HE SAID SHE IS PISSED AT ME. ALL IS HE SAYING AND ALL THAT SHE IS SAYING IS WE HAVE HAD A FIGHT, AND STARTED REFLECTING, AND I THINK SHE REFLECTED BEFORE SHE EVEN MADE THE PHONE CALL, BECAUSE THERE IS A TIME PROBLEM. THERE IS A TIME PROBLEM, AND THE SECOND PART OF EXCITED UTTERANCE AND WHAT STATE V JANO TALKS ABOUT RULE OF THUMB BEING THAT, IF THERE IS A TIME INTERVAL LONG ENOUGH TO PREVENT REFLECTIVE THOUGHT, THEN THE STATEMENT WILL BE EXCLUDED, ABSENT SOME PROOF FROM THE STATE THAT THE DECLARANT DID NOT ENGAGE IN REFLECTIVE THOUGHT, AND THE STATE DID NOT SHOW ANY PROOF IN THIS CASE, THAT RENEE FLAHERTY DID NOT ENGAGE IN REFLECTIVE THOUGHT IN THIS INSTANCE, THAT SHE DID ENGAGE IN REFLECTIVE THOUGHT. SHE MADE A PHONE CALL AND THOUGHT ABOUT CALLING HER FRIEND. I AM GOING TO TALK TO MY FRIEND ABOUT WHAT JUST HAPPENED. BUT THEN THAT WOULD ALWAYS, THEN, EXCLUDE ANY TELEPHONE COMMUNICATIONS ALONG THOSE LINES, BECAUSE YOU WOULD ALWAYS HAVE THAT REFLECTIVE THOUGHT, TO PICK UP THE PHONE OR TO WALK ACROSS THE STREET OR TO GO INTO A DIFFERENT ROOM. WOULD THAT NOT PLACE IT IN, YOU MUST BE IN THE PRESENCE OF THAT EVENT FOR IT TO BE THAT KIND OF STATEMENT, IS WHAT YOU MUST BE SAYING? NO. NO, JUSTICE. I AM NOT SAYING THAT ANY TIME SOMEBODY PICKS UP A PHONE CALL AND MAKES A CALL THAT IT TAKES IT OUT OF THE REALM OF EXCITED UTTERANCE. I AM NOT SAYING

17 THAT, BUT I THINK THAT IN THIS CASE THAT IS WHAT HAPPENED. OBVIOUSLY IF THERE IS A 911 CALL FROM A VICTIM THAT JUST GOT BEAT UP AND SHE OR HE PICKS UP THE PHONE AND DIALS 911 RAN SAYS WHAT JUST HAPPENED, I THINK IT IS CLEAR THAT THAT COULD BE AN EXCITED UTTERANCE. WHY COULD THIS NOT BE THE SAME CATEGORY, IF SHE CALLED A FRIEND RATHER THAN PICKING UP 911? BECAUSE IN THIS PARTICULAR INSTANCE THE STATE DID NOT MAKE A SUFFICIENT SHOWING THAT, NUMBER ONE THE EVENT WAS SHARLINGTS STARTLING ENOUGH TO CAUSE NERVOUS EXCITEMENT, AND NUMBER TWO THE STATEMENT WAS NOT MADE PRIOR TO REFLECTIVE THOUGHT, AND NUMBER THREE THAT, THE STATEMENT WAS MADE AFTERTHOUGHT. IT HAD TO DO WITH THAT THIRD CATEGORY, AND JUSTICE JANO SAYS -- AND JUSTICE CANTERO SAYS DOES SHE PICK UP THE PHONE AND GO BOO-HOO WHO? WAS SHE ON -- BOO-HOO? WAS SHE STILL LABORING ON WHAT THE EVENT WAS? I THINK SHE WAS SADAT THAT POINT AND SADNESS IN MY OPINION DOES NOT NECESSARILY EQUAL NERVOUS EXCITEMENT THAT ALLOWS THE STATE TO COME IN UNDER EXCITED UTTERANCE. I DON'T THINK THE STATE CUT IT. I DON'T THINK THEY HAVE ENOUGH PROOF TO GET BY THIS REQUIREMENT. WAS THE TESTIMONY THAT SHE WAS CRYING BE HEARSAY? I DON'T THINK IT WOULD, JUSTICE WELLS. IT IS NOT A -- ULTIMATELY, WHAT WE ARE TRYING TO FIGURE OUT, BY PUTING THIS LABEL OF EXCITED UTTERANCE OR WHETHER IT IS AN EMOTIONAL STATEMENT, IS, REALLY, WHETHER, IN THE CONTEXT OF THE ENTIRE BODY OF EVIDENCE, THAT THE, WHAT WAS THE SUBSTANCE OF THIS CALL, AS REPORTED BY THIS WITNESS, RELIABLE ENOUGH THAT IT CAN BE PRESENTED TO THE JURY, ISN'T IT? I MEAN, ISN'T THAT THE ULTIMATE TEST? I AGREE WITH YOU 100 PERCENT, JUSTICE WELLS. WHAT WE ARE TALKING ABOUT IS RELIABILITY, AND THEREIN LIES THE PROBLEM WITH THIS TYPE OF STATEMENT. WE HAVE ONE PERSON, A FEMALE GIRLFRIEND OF MR. HUTCHINSON, SAYING WE HAVE HAD A FIGHT. THEN WE HAVE MR. HUTCHINSON HAVING A DIFFERENT VIEWPOINT, SAYING SHE IS UPSET WITH ME. BUT DOESN'T THE BODY OF EVIDENCE HERE, AS ON THE BASIS OF HIS ADMISSION, BOLSTER THE RELIABILITY OF THIS STATEMENT? OF THIS OUT OF COURT STATEMENT? WHICH ADMISSION, THE ADMISSION THAT BEING AT THE BAR? THE ADMISSION OF BEING AT THE BAR. I DISAGREE. I DON'T THINK IT BOLSTERS THE CREDIBILITY OF THE STATEMENT. I THINK WHAT IT SAYS IS SHE HAS GOT AN ISSUE WITH ME. IT DOESN'T MEAN THAT THEY, WHAT WAS THE FIGHT ABOUT? DID THEY HIT EACH OTHER? WE DON'T KNOW THAT. DID THEY YELL AND SCREAM AT EACH OTHER? DID THE CHILDREN HEAR IT? WE DON'T KNOW ANYTHING ABOUT THE CHARACTERISTICS OF THIS FIGHT. WE HAVE ONE PERSON REPORTING TO HER FRIEND, AFTER REFLECTIVE THOUGHT, DESCRIBING AND SAYING WE HAVE HAD A FIGHT, AND HE LEFT, AND I WANT TO COME HOME. WELL, I THINK THAT IS DIFFERENT, AND MAYBE MR. HUTCH I AM SON TOOK IT A DIFFERENT WAY.