Quawn M. Franklin v. State of Florida
Docket Number: SC04-1267

MARSHAL: P LEASE RISE. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATED.

CHIEF JUSTICE: G OOD MORNING.THE NEXT CASE ON THE COURT'S CALENDAR IS FRANKLIN VER SUS STATE OF FLORIDA.

MAY IT PLEASE THE COURT . GOOD MORN ING. I AM CHRIS QUARRELS , AND I REPRESENT -- I A M CHRIS QAURLS, WHERE I RE PRESENT QAUN FRA NKLIN , IN WHICH HE WAS SENTENCED TO DEATH A FTER FINDING NUME ROUS MITIGATING FACTORS AND FOUR NONMITIGATING FACTORS. MR. FRANKLIN D ROVE FROM ST. PETERSBURG FROM L EASE BERG -- FROM LEESBURG. THEY WERE ALL SH ORT O F MONEY AND ULTIMATELY RETURN ED TO LEESBURG WITH MR. FRANKLIN DRIVING, AND IT WAS AT THAT POINT IN TIME THAT THEY PULLED INTO THE A L BERTA CRATE AND B OX FRACT URERY OUTSIDE OF LEESBURG, WHERE --

JUSTICE: I THINK YOU CAN ASSUME THAT WE ARE INTIMATELY FAMILIAR WITH THE FACTS OF THE CASE , BECAUSEWE HAVE A LIMITED AM OUNT O F TIME.

I UNDERSTAND, YOUR HONOR .

JUSTICE: LET ME ASK YOU A QUESTION ON IS SUE NUM BER ONE , I AM CONCERNED ABOUT THE INTERPRETATION OF 90.015.2 , SAYING WHEN THE RELEVANCE I OF EVIDENCE DEPENDS UP ON THE EXISTENCE , WHEN -- THE RELEVANCY OF EVIDENCE DEPENDS UPON THE KP INS , EXCUSE ME, WHEN THE TRIAL JUDGE MAKES A RULING . WHEN YOU FILE THIS WHOLE STACK OF PRETRIAL MOTION I NSTHIS CASE AND YOU MAKE WHAT IS TYPICALLY, AND YOU WANT TO CLARIFY FOR M E FROM MY EXPERIENCE A TYPI CALLY GEN ERIC MOTION THAT WE OBJECT TO MILE HEAR ON -- TO ANY HEARSAY AND THAT VIOLATES THE CONSTI TUTION, BUT THERE IS NO SPECIFICITY AS TO WE OBGENT TO MILE HEARSAY STATEMENTS MADE BY THIS WITNESS , THAT -- SPECIFICITY AS TO WE O B JECT TO ANY HEAR SAY STA TEMENTS MADE BY THIS WITNESS OR THAT WITNESS, BUT THE GENERAL CHALLENGE OF HEARSAY OF ALL WITNESSES IN THE CASE, THAT WHAT YOU HAVE IN THIS CASE?

HE FILED A GEN ERAL MOTION AS TO THE HEARSAY ISSUE IN THE CASE.

JUSTICE: WAS THERE EVER AN OBJECT ION TO A SPEC IFIC WITNESS?

IN THE MOTION .

JUSTICE: OR AT ANY TIME IN THIS TRIAL.

H E POSED A HEARSAYOBJECTION TO THE DETECTIVE'S TESTIMONY WHAT HE HEAR D THE DOCTOR AT THE HOSPITAL TELL HIM. HE SAID HEARSA Y. HE DID NOT SAY CONF RONT INDICATION . -- CONFRONTATION .

JUSTICE: HEARSAY , WOU LD YOU BE RELYING ON PRE TRIAL MOTIONS OR THE OBJECTIONS MADE AT THE TIME?

BOTH.I THINK THAT THAT STAT UT E IS RELATIVELY NEW, AND I T HINKTHE WAY IT SHAKES OUT W ILL DEPEND UPON WHAT THIS COURT AND OTHER COURTS IN THE STATE OF FLOR IDA , THE WAY THEY INTERPRET IT , BUT EVEN WITHOUT THAT STATUTE , THE RE WAS A SPECIFIC HEARSAY OBJECTION THAT WAS CONTEMPORANEOUS WITH THETESTIMONY, AND EVEN CRAWFORD ASIDE, HEARSAY IS BY STATUTE , ADMISSIBLE IN THE STATE OF FLORIDA AT THE PENALTY PHASE , PROVIDED THERE IS A FA IR OPPORTUNITY FOR THE DEFENDANT TO REBUT. NOW , WE CONTEND THAT EVEN , WITHOUT CRAWF ORD ASIDE, THERE WAS NO FAIR OPPORTUNITY TO REBUT, AND THEREFORE THIS HEARSAY OBJECTION THAT WAS POSED WAS SUFFICIENT TO PRESER VE THE ISSUE.

BUT THE HEARSAY IN T HIS CASE AS WAS PRES ENTED , WAS AS TO THE QUALIFICATION TO TESTIFY , WAS IT?

I AM SORRY. YOU ARE RIGH T. I WAS CONFUSING MY ISSUES. HE DID STATE THAT , WHEN HE TALKED ON THE DOCTOR , THE DOCTOR SAID, AND HE OBJECTED, SAYING THAT THE DET ECTIVE WAS NOT A DOCTOR , AND THE PROSECUTORS' RESPONSE WAS THAT, IN THE PENALTY PHASE , HE CAN TE STIFY TO. THAT I THINK IT IS CLEAR THAT THE PROSEC UTOR INTERPRETED THE OBJECTION , AT LE AST IN PART AS A HEARSAY OBJECTION. THAT APPRISED THE T RIALCOURT AND THE OPPO SING PARTY, OF WHAT HIS OBJECTION WAS. I WOULD HAVE PREFERRED CANDIDLY, FOR THE DEFENSECOUNSEL TO HAVE USED THE WORD HEARSAY AND CONFRONTATION. BUT I T WAS CLEAR TO EVERYBODY THAT HE OBJECTED TO THE DETE CTIVE REL ATING WHAT THE DOCTOR TOLD HIM .

JUSTICE: BUT DIDN'T THE VICTIM OF THAT CRIME, AL SO , PROVIDE TESTIMONY?

YES, YOUR HONOR.

JUSTICE: SO WHY WOULD IT NOT BE WITHOUT REGARD TO ANYTHING ELSE, HARM LESS ? IF ERROR.

WELL, I THINK THAT T HE, WHAT THE DETECTIVE TEST IFIED TO WAS VERYY I S GRUESOME. THE THE WITNESS, THIS W ASBASED ON ONE OF HIS PR IOR VIOLENT AGGRAVATE SO URCE THAT THEY USE. IT WAS AN ELDERLY WOMAN. SHE HAD NOT BEEN AN IN WHEELCHAIR PRI OR TO THIS AT O'CLOCK AC. IT WAS -- TO THIS ATTACK. NO DOUBT.

JUSTICE: THAT IS NOT HEARSAY COMING IN.

NO.BUT THE FACT THAT THE DETECTIVE HEARD THE DOCTOR RELATE TO HIM AT THE HOSPITAL WAS THE MAIN CONCERN THAT PIE CE S OF HER SKULL HAD BEEN BROKEN UP AND ENDED UP DO WN INSIDE HER BRA IN. I THINK THE GRAP HIC GRUESOME OF THAT SETS IT A P ART .

CHIEF JUSTICE: SO, A GAIN , NOW I WOULD AS SUME THAT THE DOCTOR COULD HAVE TESTIFIED TO THAT .

YE S.

CHIEF JUSTICE: WAS THE DOCTOR, WAS THERE AN ESTABLISH , WAS IT ESTABLISHED WHETHER THE DOCTOR WAS AVAILABLE OR NOT?

NO INDICATION ON THE RECORD WHY THE DOCTOR WAS NOT CALLED BY THE STATE. IF HE HAD AND THE DEF ENSEHAD AN OPPORT UNITY TO CONFRONT, I WOULD NOT HAVE THAT ISSUE.

CHIEF JUSTICE: JUS TICEQUINCE.

JUSTICE: IS IT IMPORT ANT IN THIS WHOLE ANALYSIS, THIS IS THE PRIOR VIOLENT FE LONY , AND HE HAD GONE TO TRIAL ON THAT PRIOR VIO LENT FEL ONY.

THE TRIAL HAS STARTED AND HE PLED GUILTY IN THE MIDDLE OF THAT TRIAL .

JUSTICE: DID THE DOCTOR TESTIFY IN THAT TRIAL BE FORE HE PLED GUILTY?

I DO NOT KNO W. THAT IS NOT ON THE RECORD .

JUSTICE: SO WHAT IT ALL REALLY BOILS DOWN TO IS, REALLY, THIS ONE STA TEMENTABOUT THAT HE HIT HER AND A PART OF HER S KULL WAS EMBEDED IN HER BR AIN VERSUS SHE CAME IN THERE AND TESTIFIED, HERSELF , ABOUT HOW THIS , HER LIFE HAD CHANGED AFTER THAT ATTACK , THAT SHE WAS NO W IN A WHEELCHAIR, COULD NOT LIVE ON HER OWN , ALL O F THESE THINGS, SO WE R E ALLY, D IDTHE JURY DID HAVE A GRAPHICPICTURE OF WHAT HAPPEN ED TO HER FROM HER OWN TEST MO NE Y . -- TESTIMONY.

YES , WHICH WE ALSO R AISED IN AN OLD CHIEF ARGU ME NTTHAT THE DEFENSE HAD OFFERED TO STIPULATE TO THAT PRIOR VIOLENT FELONY AGGRAVATOR BUT THE STATE INSI STED O N PROVING IT UP, AND IN ESSENCE IT SORT OF BALLOONED AND BECAME A FEATURE , A NDTHAT WAS ERROR, ALSO, I RAISED IN ANOTHER PART OF THE BRIEF.

CHIEF JUSTICE: SO WE KNOW HERE, BECAUSE WE ARE , YOU , WE HAVE BEEN DEALING WITH YOUR FIRST PO INT ON APPE AL. WAS IT, AND JUSTICE AN STEAD HAD ASKED WHICH POINT YOU ARE G OING TO T OUCH ON . JUST SO W E MAKE SURE THAT WE HIT THE POINTS THAT YOU , ALSO , AND THE COURT THINGS ARE IMPO RTANT .

I CERTAINLY IN TEND TO TOUCH ON THE FIRST T WOPOINTS, YOUR HONOR.

CHIEF JUSTICE: WE HAVE BEEN DOING THAT ON THE FIRSTPOINT. JUSTICE QUINCE.

JUSTICE: WELL, I AM KIND OF , SOMENT THE STATE IS NOW LEFT IN A QUANDRY. WE HAVE THESE -- IT SEEMS TO ME THE STATE IS NOW LE FT IN A QUANDRY. WE HAVE THESE CRAWFORD ISSUES AND THEN WHEN YOU EVEN BR ING IN THE ACT UA L PERSON AS OPPOSED TO SOMEBODY TALKING ABOUT MRS. JOHNSON'S CONDITION, SHE ACTUALLY COMES IN AND THEN WE GET THESE ISSUES CONCERNING, WELL, HE W A NTED TO STIPULATE TO IT, AND SO HOW IS THE JURY SU PPOSED TO EVALUATE THE PRIOR VIOLENT FELONY? JUST MERE FACT THAT A PRIOR VIOLENT FELONY IS ENOUG H? ARE YOU SAYING NOW , THAT WE SHOULDN'T ALLOW ANY TESTIMONY ABOUT THIS PRIOR VIOLENT FELONY, SO THAT THE JUDGE AND THE J URY CAN DETERMINE JUST HOW M UCH WEIGHT TO G IVE THESE?

WELL , THIS COURT HAS HE LD THAT THE STATE CAN PROVE UP THE PRIOR VIOLENT FELONIES . HOWEVER , IT DOES REACH A POINT WHERE IT BECOMES TOO MUCH. AND I HAVE ALWAYS -- .

IF WE HAD WANTED THE TESTIMONY ABOUT THE SKULL BEING EMBEDDED INTO T HEBRAIN , WE WOULD HAVE TO BRING IN THE DOCTOR , CORRECT?

YES. THAT'S CO RRECT .

JUSTICE: AND WE WOULD HAVE HAD EVEN MORE A FTERFEATURE OF THIS PRIOR VIOLENT FELONY , SO I A M TRYING TO FIGURE OUT HERE, WHERE DO WE DRAW THE LINE , VERSUS DARRELL , CONVICTED OF A PRIOR VIOLENT FELONY, VERSUS SOME EVIDENCE OF HOW EGREGIOUS OR NONEGREGIOUS THAT PRIOR VIOLENT FELONY IS.

WELL , I THINK IN THIS CASE AS I HAVE ARG UED IN OTHER CASES, IT REAC HED A POINT OF EGREGIOUS , AND YOU DO HAVE TO DRAW THE L INE SOMEWHERE, BUT IF YOU ARE GOING TO LET THE STATE PROVE THE PRIOR VIOLENT AGGRAVATOR , YOU CERTAINLY CAN'T DO IT , WE CONTEND , BY HAVING A DETECTIVE TESTIFY AS HE DID HERE, ABOUT THE PIECES OF THE BRAIN AND THEN THE PROSECUTOR, THE PRO SECUTOR USED THAT IN HIS CL OSING ARGUMENT. HE REMINDED THE JURY THAT THE DETECTIVE TOLD THEM, TESTIFIED WHAT THE DOCTOR TOLD HIM ABOUT THE PIE CE S OF SKULL GOING INTO HER BRA IN. I THINK THAT CROS SES THE L INE WHEREVER YOU DRAW IT.

JUSTICE: WELL, SPEA K TO THE TESTIMONIAL AS PECT. EXPLAIN TO ME WHY YOU BELIEVE THIS DOCTOR'S STATEMENT WAS TESTIMONIAL.

BECAUSE DETECT IVES S AID THAT HE WAS AT THE HOS PITAL. HE WAS INVESTIGATING MR . FRANKLIN'S CRIME SPRE E. HE WAS NOT O NLY , HE WAS THE, THE STATE MAKES HAY OF T HEFACT THAT HE WAS THE CHIEF INVESTIGATOR ON THE PIECE DELIVER MURDER, BUT OBVIOUSLY HE WAS CALLED IN TO INVESTIGATE THIS CRIME AGAINST MRS. JOH NSON.

JUSTICE: WAS T HIS DISCUSSION WITH THE DOC TOR AT THE TIME THAT SHE WAS IN THE HOSPITAL, IN THE EMERGENCY ROOM, INVESTIGATING THE INIT IAL COMPLAINT?

SHE WAS DEFINITELY IN THE HOSPITAL. I DON'T KNOW WHETHER SHE WAS IN THE EMERGENCY ROOM.IT IS CLEAR FROM THE RECORD THAT SHE WAS AT THE HOS PITAL AT THE TIME, YES.

JUSTICE: SO IT WAS AN INITIAL INVESTIGATION.

YES, AND HE WAS QUESTIONING THE DOCTOR ABOUT THE EXTENT OF HER INJU RIES, AND I THINK UNDER THE CIRCUMSTANCES, I THINK IT IS CLEAR THAT IT IS REA SONABLE TO AS SUME THAT THE DOCTOR 'S STATEMENTS TO THE POLICE OFFICER , THE DETECTIVE , WOULD BE USED SUBSEQUENTLY IN COURT IF THE DOCTOR DID NOT IN FACT , COM E IN TO TESTIFY.

CHIEF JUSTICE: WE ARE GOING TO EN D UP IN THESE CASES, BECAUSE CLEA RLY CRAWFORD DOES IMPACT ON WHAT,AT LE AST I SEE THAT IT CLEARLY IMPACTS, WITH THE EXTENT OF THE IMPACT IS O PEN TO QUESTI ON. I AM ST IL L HAVING, IN T HIS CASE, I GUESS, IF YOU GET PAST THE PRESER VATION ISSUE , HOW WE MEAS URE WHETHER IT WAS HARMLESS BEYOND AREASONABLE DOUBT OR NOT , AND YOU ARE SAYING THAT HAVING THE V I CTIM CO ME IN AND TESTIFY IS NOT THE SAME THING AS HEARING IT FROM THE DETECTIVE.

WELL , SHE WAS , IN HER TESTIMONY , SHE DID NOT REMEMBER A LOT OFF THE OFFENSE. SHE REMEMBER ED THE -- OF THE OFFENSE. SHE REME MBERED THE BEGINNING OF THE OFFENSE.

CHIEF JUSTICE: I GU ESS WHAT I SEE IN THE FUTURE IS DEFENDANTS HAVE NOT REALLY MINDED THE MORE SANMI ZE ED -- SANITIZEED VERSION THAT MAY OCCUR WHEN THE POLICE OFFICER GIVES THE FACTS, A ND IF THE STATE IS GOING TO ACTUALLY BE IN A POSI TION TO BRING IN THE DOCTORS, THE DEFENDANT -- THE DOCTORS , THE VIC TIM, THE DEFE NDANT MAY ACTUALLY END UP SEEING THIS FROM THE ACTUAL WITNESSES , THEY MAY FIND TO BE ACTUALLY MORE HARM FUL TO THEM IN THE PENALTY PHASE , REALLY, THAN NOT , SINCE IDON'T THINK THE FACTS OF THIS CRIME, THE PRIOR CRIME WERE CONTRO VERTED , A S FAR A S WHAT HAPPENED TO HER .

NO, EXCE PT , WELL , WE DON'T HAVE A, L I KE I SAID, THIS CAME FROM THE DETECTIVE NOT THE DOCTOR , SO THE MED ICAL TERMS OF PIECES OF SKULL GOING DOWN INTO YOUR BRAIN, I DON'T KNOW. I MEAN, THAT IS SOMETHING THAT THE DETECTIVE TESTIF IED TO. WE DON'T KNOW WHETHER IT WOULD HAVE WITHST OOD THE COBB FRONT ATION TEST OF -- CONFRONTATION TEST OF THATDOCTOR. MAYBE AND MA YBE NOT. I DON'T KNOW.

CHIEF JUSTICE: IF Y OU ARE SAYING THAT IT WAS , THAT WOULD BE AN ISSUE OF WHE THERHE ACTUALLY HAD THAT KNOWLEDGE, WHETHER IT IS ACCURATE LY EVEN TE LLING OR RELATED WHAT HAPPENED, A NDTHERE IS NO , NOTHING I N THIS RECORD, FOR EXAMPLE , THE HOSPITAL RECORDS, TO SHOW THAT THERE IS AN YTHING INACCURATE ABOUT WHAT HE TESTIFIED TO.

NO. NO. THAT'S CORRECT.

JUSTICE: YOU MAKE AN OTHER CONFRONTATION CLAUSE ARGUMENT, ISSUE NUMBER THREE.

YES.

JUSTICE: AS TO T HESTATEMENTS OF THE VICT IM TO ONE OF THE WITNESSNESSES ANDTO THE POLICE OFFICER . WHY ISN'T THE REAS ON THAT THAT STATEMENT IS UNAVAILABLE IS BECAUSE YOUR CLIENT MURD ERED THE PER SON MAKING THE STATEMENT, SO WHY DOESN'T THE DRAN THE EQUITABLE PRECONCLUSION OF THAT HE SHOULDN'T TAKE ADVANTAGE OF HIS O WN WRONGDOING, PRECLU DES HIM FROM MAKING THAT ARGUMENT A S TO THOSE PARTICULAR STATEMENTS.

I THINK THE FOOTNOTE IN CRAWFORD THAT REFE RS TO DYING DECLARATION INS THAT EQUITABLE -- DECLARATIONS IN THAT EQUI TABLE ARGUMENT, THAT IS PURE DICTUM , AND IT SEEMS TO ME NOT TO BE LOGICALLY THE SAME CONCLUSION SHOULD B E REAC HED LOGICALLY , IN ANALYZING DYING DECLARATIONS , W HICH THIS WAS NOT, BECAUSE THE STATE FAILED TO LAY THE FOUNDATION FOR THAT , BUT THAT IS AN ASIDE, BUT GETTING BACK TO THE EQUITABLE ARGUMENT , IT STILL MAKES NO SENSE TO ME , Y OUSTILL HAVE A RIGH T TO CONFRONT, I MEAN , YOU ARE SAYING THAT YOU DON'T HAVE A RIGHT TO CONFRONT BEC AUSEYOU ARE THE REASON, IT IS SORT OF A CIRCULAR ARGUMENT THAT FLIES IN THE FACE OF THE HOLDING IN CRAWF ORD, I THINK.

JUSTICE: THERE IS A DOCTRINE IN THE LAW NOT ONLY IN THIS AREA BUT IN MANY AREAS THAT, UNCL EAN HA NDS DOCTRINE, BOTH IN CRIM INAL AND CIVIL LAW AREAS THAT YOU CAN'T TAKE ADVANTAGE OF YOUR OWN WRONGDOING .

WELL, THERE AGAIN , I THINK THAT IF YOU CA RRY TO THIS EXTREME, I THINK IT BECOMES CIRCULAR , AND BECOMES , YOU AVOID THE ENTIRE CONF RONTATION TEST , BY TAKING OUT THAT CATEGORY , AND THAT IS NOT FAIR. I UNDERSTAND - -

CHIEF JUSTICE: WHAT YOU ARE , LE T'S MAKE SU RE, BECAUSE I F THE DEFENDANT SAID IT WASN'T HIM , THEN IT SORT OF IS PUTT ING THE CARD BEFORE THE HORSE TO S AY, WELL, YOU ARE THE O NE THAT DID IT. THEREFORE , BUT IN THIS CASE , DIDN'T THIS DEFENDANT CONFESS?I MEAN, TO THE FACT THAT IT WAS HIM?

WELL , HE DID MAKE T WOSTATEMENTS, YES . BUTS NEVERTHELESS LIE GOING TO -- BUT NEVERT HELESS B Y GOING TO TRIAL, I THINK YOU STILL HAVE PUT THE STATE TO ITS BURDEN OF PROOF AND YOU STILL HAVE THE RIGHT TO CONFRONT WITNESSES THAT THE STATE PRES ENTS AT THAT TRIALAGAINST YOU .

JUSTICE: LET ME PROCEED,THEN, TO MY OTHER QU ESTION I HAD REGARDING THATPARTICULAR ISSUE. THE VICTIM'S STATEMENTS TO , I FORGET THE NAME BUT THE TRUCK DRIVER, THAT SEE MED TO BE AN EXCITED UTTERANCE. WHY IS THAT TESTIMONIAL , A NDTHE SAME THING WITH RE GARD ING TO THE POLICE OFFI CER . THAT MAY BE A CLOSER QUESTION, BUT BO TH, I THINK , WERE INTRODUCED AS EXCITED UTTERANCES, AND CAN YOU EXPLAIN AS TO BOTH, WHY THEY ARE TESTIMON IAL IN N ATURE .

WELL, I AGREE WITH YOU. I THINK IT IS A CLO SER QUESTION ON THE FIRST ONE. BUT THE , I D O CITE S OME CASES IN MY BRIEF THAT A PPLY CRAWFORD TO EXCITED UTTERANCES, AND THAT WAS THE BASIS, OBVIOU SLY , OF THE TRIAL COURT, ALLO WING IT. HE CITED THE STAT UTE SPONTANEOUS STATEMENT,EXCITED UTTERANCE, AND STATEMENT OF , STATE OF M IND OR I FORGET WHAT THE OTHER ONE WAS.

I THINK THAT YOU AGREE ON AND PEEL THAT AT LEAST AS FAR AS -- ON APPEAL THAT AT LEAST AS FAR AS THE HEARSAY IS CONCERNED, IT WOULD BE AN EXCITED UTTERANCE , ABS CONFRONTATION CLAUSE -- ABSENT CONFRONTATION CLAUSE ISSUE.

YES , BUT AS I SAID I CITED THE MORE RECENT CASES THAT DEAL WITH EXCITED UTTERANCES OTHER THAN CRAWFORD AND THEY ARE STILL NOT ADMISSIBLE UNDER THE CONFRONTATION --

CHIEF JUSTICE: THAT WOULD BE IN THE SUPREME COURT RIGHT NOW ABOUT SOMETHING SAID IN EXCITED UTTE RANCE T O A POLICE OFFICER , THAT THAT IS UNDER CRAWFORD OR NOT.

RIGHT .

CHIEF JUSTICE: SO IN ELLIS , THE ST ATEMENT , THE TRUCK DRI VER, THOUGH , HOW DOES THAT FIT INTO , I DON'T THINK WE ARE AT THAT DISTANCE FROM CRAWFORD.

LI KE I SAID , I THINK IHAVE GOT A M UCH BETTER ARGUMENT ON THE POLICEOFFICER, WHERE HE DID ARRIVE AT THE SCENE AND THEN BLA FK INTERROGATED M R . LAWLEY, ASKING HIM -- BASI CALLY INTERROGATED MR . LAWL EY , ASKING HIM QUESTIONS WH IC H WERE CLEARLY TESTIMONIAL.

CHIEF JUSTICE: AS JUS TICE CANTERO AS KED YOU, IF IT I S ANSWER TO SAY SPEC IFIC QUESTIONS , DO YOU CONCED E ON APPEAL THAT IT WAS PROPERLY , WAS ALSO AN EXCITED UTTERANCE, NOT THAT THAT MEANS THAT IT CAN'T BE TESTIMONIAL BUT THAT IT IS AN EXCITED UTTERANCE , I F ITWAS BEING G IVEN AS FAR AS QUESTION -AN SWER , QUESTION-ANSWER?

ARE YOU SAYING THAT , IF IT IT WERE THE AN SWER SOLICITED BY A QUESTION , DOES THAT TAKE TO UT OF OR MAKE I T --

CHIEF JUSTICE: WHAT IS YOUR ---TAKE IT OUT O F O R MAKE IT - -

CHIEF JUSTICE: WHAT IS YOUR POSITION ON APPEAL?

I THINK THE TRUCK DRIVER DID TESTIFY THAT THE ANSWER WAS IN RES PONSE T O , AND T HAT TAKES IT AWAY FROM EXCITED UTTERANCE.IT IS A CLOSE QUESTION.

JUSTICE: DOES THE CASE LAW SAY THAT IF YOU ANSWER ANY QUESTIONS, IT IS NO LONGER AN EXCITED UTTERA NCE?

WELL , YES , I THINK THERE ARE SOME CASES IN T HERE. I AM NOT SURE I QUITE CITED THEM IN M Y BRI EF -- I CITED THEM IN MY BRIEF , BUT IT I S AKIN TO THE O HIO ROBERTSWHICH WE HAVE ABANDONED , WHICH IS MORE RELI ABLE, BECAUSE IT IS SPO KEN IN THE HAYES THE AND EXCITED - - I N THE HA STE AND EXCITED NATU RE OF THE RECENT EVENT WITH OUT THE TIME FOR THE DECLARANT TO PAUSE AND REFLECT ON WHATEVER --

JUSTICE: SO THOSE FACTORS WOULD STILL BE PRESENT, EVEN IF SOMEONE ASKED YOU A QUESTION WHY ARE YOU SO AGITATED, IT WO ULD STILL BE UNDER THE INFL UENCE OF WHATEVER THAT EXCITING EVENT WAS.

THEY COULD. THEY COULD. YES.

CHIEF JUSTICE: BUT Y OUSAID IT IS A CLOSE QUESTION. AND WE CAN L OOK BAC K AT YOUR BRIEF. ARE YOU CONTESTING THE COURT'S FI NDING THAT THE STATEMENTS WERE EXCITED UTTERANCES ?

DEFINITELY THE POLICE OFFICER.WELL, YES, TO SOME EX TENT BOTH, BUT IT DOESN'T MATTER .

CHIEF JUSTICE: IT DOES MATTER T MATTERS IN TE RMS OF -- IT MATTERS IN TERMS OF FOR E LLIS, BECAUSE THAT DOESN'T SEEM THAT THAT WOULD FIT UNDER CRAWFORD , BEC AUSE IT IS NOT TO LAW ENFORCEMENT OR SOMEBODY WHERE HE IS CONTEMPLATING THAT HE ISGOING TO BE TRYI NG TO GET THE , THAT I T FITS INTO THAT, THAT IF IT IS NOT AN EXCITED UTTERANCE, THEN MAYBE IT CAN'T COME, IN BUT IF IS AN EXCITED UTTERANCE , THEN I T IS NONTESTIMONIAL, THEN YOU DO GO BACK TO OHIO V ERSUS ROBBINS. DON'T YOU AGREE WITH THAT?

YES. I CERTAINLY WOULD CONCEDE THAT BEFORE THE POLICE OFFICER.YES.

IS IT YOUR POS ITION THAT ANY STATEMENTS MADE BY A VICTIM OR A WITNESS TO A POLICE OFFICER, ARE BY DEFINITION, TESTIMONIAL, OR THAT WE NEED TO CONSI DER THE CIRCUMSTANCES OF THE CASE , TO DETERMINE WHETHE R IT IS TESTIMONIAL?

I THINK IF THE POLICE OFFICER IS ASKING QUESTIONS, I THINK IT IS CLEARLY TESTIMONIAL. IF HE IS INVESTIGATING A CRIME, YES . THE OTHER ISSUE I WOULD LIKE TO TOUCH ON BRIEFLY , IS POINT T WO, WHERE HE AND , HE CONFESSED NOT ONLY TO THE POLICE OFFICER BUT WHILE HE WAS AWAI TING TRIAL IN THE COUNTY JAIL, HE CALLED A NEWSPAPER REPO RTER AND G AVE A TAPED INTERVIEW WI TH THE NEWSPAPER REPORTER , CONFESSING TO THE CRI MES ASWELL. HE, AND THERE WAS A HEARING PRETRIAL TO REDACT CERT AIN IRRELEVANT PORTIONS OF THAT STATEMENT. THE JUDGE AGREED THAT IT WOULD REDACT SOME OF THEM BUT OVER DEFENSE OBJECTION, A REL EVANCE OBJECTION, ALLOWED IN PARTS OF THE STATEMENT THAT DEALT WITH MR . FRANKLIN'S STATE OF MIND.HE WAS CLEARLY DEPR ESSED . HE SAID --

CHIEF JUSTICE: I GUESS WHAT I WA NT TO KNOW ABOUT THAT, L ET'S ASS UME THAT IT WASN'T DIRECTLY RELEVANT. HOW I S THAT HARMFUL ? I MEAN , IT SEEMS IF AN YTHING , COULD POSSIBLY HUMANI ZE HIM , AS FAR AS SAYING I WAS TIREDOF LI VING , OF BEING TR EATED LIKE AN AN IMAL , YOU KNOW , THAT --

WELL , HE ALEN ATES T HEJURY BY IN ESS ENCE , BLAMING THEM AMONG OTHER PEOPL E. HE SAYS I DID IT BUT SO WHAT. THEY THE CAUS E OF THAT, THE PEOPLE, THE WO RLD , LI FE, I HATE LIVING. I HATE LIFE. I AM TIRED OF EVERY THING. PEOPLE WATCHING ME , HATING ME, TIRED OF PEO PLE. UNDOUBTEDLY IT DEHUMANIZED HIM AND ALLOWED THE JURY MORE READILY , T HEOPPORTUNITY AND THE DE SIRE TO GO AHEAD AND LE VY THE ULTIMATE SANCTION.

CHIEF JUSTICE: DID THAT COME IN IN THE GU ILT PHASE?

YES, IT D -- IT D ID. AND I F IT HAD ANY RELEVANCE WHATSOEVER, I THINK 40 3 WOULD APPLY.

CHIEF JUSTICE: YOU DON'T RAISE ANY , EXCE PT FOR THE ISSUE OF VICTIM IMPACT AND , YOU DON'T REALLY RAISE ANY ISSUES ABOUT ANY RUL INGS THAT WERE INAPPROPRIATE REGARDING NOT LET TINGSOMETHING IN IN THE PENALTY P HASE, AS FAR AS THIS DEFENDANT'S BACKGROUND ? YOU DON'T DIREC TLY RA ISE PROPORTIONALITY. IS IT BECAUSE YOU HAVE SO MANY AGGRAVATORS IN THIS CASE?

WELL , I DO HAVE A LOT O F AGGRAVATORS.I MADE AN ARGUMENT , I THINK HE SPEC IALLY THE EVID ENCE , THE RECORD IS VERY WE AK ON HIDING PREMEDITATION . I THINK THE TRIAL JU DG E 'S INTERPRETATION OF MR. FRANKLIN 'S STATEMENT THAT HE WAS GOING BACK TO GET THE SECURITY GU ARD , AS EVIDENCE THAT HE PLANNED TO KILL HIM , IS A STRETCH.

CHIEF JUSTICE: I SEE AGAIN, THAT WE HAVE A SPECIAL VERDICT FORM LIKE WE HAD YESTERDAY IN A CASE.

YES .

CHIEF JUSTICE: AND JUST LIKE WHAT I SUSP ECTED WAS GOING TO HAPPEN , THE RE WAS ACTUALLY AN UNANIMOUS FINDING ALL OF THE AGGRAVATORS , INCL UDING C CP AND PECU NIARY GA IN. HOW DOES THAT , DOES THAT CHANGE YOUR, THE ISSUE THAT THE JURY FO UND, AL SO, I N ADDITION TO THE JUDGE , SUBSTANTIAL EVIDENCE TO SUPPORT A HEIGHTENED PREMEDITATION?

NO. I DON'T THINK THE JURY REALLY UNDERSTANDS THAT, THE HEIGHTENED AGGRAV ATOR STATUTE.I JUST DON'T THINK THE INSTRUCTIONS SUFFICIENTLY DEFINE IT SUCH THAT THEY CAN MAKE AN EDUC ATED DECISION ABOUT THAT .

CHIEF JUSTICE: BEFORE YOU SIT DOWN , DO YOU WANT TO TOUCH ON ANY OTHER PO INT? YOU ARE IN YOUR REBUTTAL.

I THINK NOT , YOUR HONOR. THANK YOU.

MAY IT PLEASE THE COURT. MY NAME IS STEP HEN AKE AND I WOULD LIKE TO BE GI N B Y TALKING ABOUT THE PRESERVATION AREA, THAT JUSTICE BELL STARTED H ISELEMENT, STARTED HIS QUESTIONING WITH COUNSEL ON. COUNSEL PRETRIAL , F I LED A PRETTY GENE RIC MOTION ATTACKING THE CONSTITUTIONALITY OF THE STATUTE INVOLVING THE ALLOWING HEARSAY IN T HEPENALTY PHASE AND , A LSO , SOUGHT TO BA R THE STATE F ROM INTRODUCING ANY HEARSAY EVIDENCE IN THE PENALTYPHASE. IT WAS A RATHER GENERALMOTION, AND IT WAS HEAR D THE SAME DAY THAT THE COURT HEARD ALL OF THE OTHER STANDARD DE ATH PENALTY MOTIONS, AND THER E WAS NO , NO SPECIAL ARGUMENT OR WHATEVER WHAT HAVE YOU ON THAT MOTION , AND THE C OURTDENIED T I T WASN'T A -- DENIED IT. IT WASN'T A DEFINITIVE RULING AS TO ANY CERT AIN WITNESSES OR ANY TESTIMONY. YOU CAN , FOR COMPARISON PURPOSES, I WOULD LIKE TO LIKE ISSUE NUMBER T WO , WHEREPRIOR TO TRIAL AND WE HAVE A SUPPRESSION HEARING AND HEGOES THROUGH AND SAYS HERE ARE THESE STATEMENTS, TO THE REPORTER, THAT I DON'T WANT INTRODUCED INTO EVIDENCE, AND THE COURT SAID, NO , I AM ALLOWING THOSE INTO EVIDENCE. THAT IS A DEFINITIVE RU LING ON SOMETHING THAT , HAD COUNSEL NOT RENE WED T HAT OBJECTION, I WOULD A RGUETHAT THAT SE CTION WOULD ALLOW HIM TO PRE HAVE PRESERVED IT, BUT THAT IS NOT THE CASE DEALING WITH THE HEARSAY ISSUE IN THE PENALTY PHASE, BECAUSE WE DON'T HAVE A DEFINITIVE RULING FROM THE TRIAL J UDGEAHEAD OF TIME, AND THEN TO MAKE MATTERS WORS E AT THE PENALTY PHASE, THE TRIAL COUNSEL DID NOT OBJECT ON HEARSAY GROU NDS. HIS OBJECTION WAS A S TO THE QUALIFICATIONS OF THE POLICE OFFICER 'S AB ILITY TO TESTIFY AS TO THE VICTIM'S INJURIES . THE DEFENSE ATTORNEY NEVERPUT THE COURT O N NEATIESTHAT HE WAS -- ON NOT IC E THAT HE WAS OBJECTING ON HEARSAY OR ON CONFRONTATION CLAUSE GROU NDS, WH ICH HAD HE DONE, I SUBMIT THE RECORD WOULD HAVE BEEN BE TTER AND WE COULD CLARIFY SOME OF THE ISSUES SURR OUNDING THIS , BUT WE DON'T HAVE THAT HERE, S O I DON'T THINK HIS OBJECTION AS TO THE QUALIFICATION AS PRESERVED THE PRE SENT ARGUMENT THAT HE IS RAISING NOW AS TO THE VI OLATION OF THE CONFRONTATION CLAUSE , AND THE STATE WOULD SU BMIT THAT .

JUSTICE: I UNDERSTAND YOUR ARGUMENT, BUT ON CE YOU GET BEYOND THAT AND WE M AYVERY WELL DETERM INE THAT , BUT IF WE DON'T , DO YOU CONCEDE THAT THIS TESTIMONY WAS HEARSAY AND THAT IT DID NOT FALL WIT HIN ANY HEARSAY EXCEPTION ?

WELL , THE QUESTION WAS NOT DIRECTED TOWAR DS THE HEARSAY ANSWER. THE OFFICER DID, IN FA CT, GIVE A HEARSAY ANS WER. WHETHER IT IS A VIOLATION OF CRAWFORD IS ANOTHER MATTER.

THAT IS NOT WHAT I AM ASKING.

NO. HE DEFINITELY SAID THIS IS WHAT THE DOCTOR TO LD ME, A NDTHAT WOULD COME UNDER HEARSAY.

JUSTICE: THAN IS THE HEARSAY AND THERE IS NO EXCEPTION TO IT. THE REASON YOU GOT IT IN WAS BECAUSE IT WAS THE PENALTY PHASE.

RI GHT. CORRECT.

JUSTICE: AND WHAT OPPORTUNITY DID THE DEFENDANT HAVE TO REBUT?

WELL , HE HAD A PRIOR TRIAL INVO LVING ALICE JOHNSON THE VICTIM IN THIS CASE, AND HE OBVIOUSLY COULD HAVE HAD HIS CONFRONTATIONRIGHT THERE , TO ADDRESS WHAT THE DOCTOR OR THE TESTIMONY OF THAT CASE , AND THIS COURT IN RODRIGUEZ PO INTED THAT OUT .

JUSTICE: HE HAD A PRIOR TRIAL.DIDN'T HE ENTER INTO A PLEA?

HE PLED MID WAY TH ROUGH THE TRIAL, GENT LEMEN , Y OUR HONOR. -- YES, YOUR H ONOR .

CHIEF JUSTICE: DO WE HAVE IT IN THE RECORD WHETHER THE DOCTOR'S TESTIMONY W ASTAKEN?

WE DO NOT HAVE THAT IN THE RECORD , YOUR HONOR.

CHIEF JUSTICE: BEFORE YOU MAKE THAT STATEMENT TO US , WOULDN'T THAT BE SOMETHING THAT YOU WOULD DO A SUPPLEMENTAL RECORD SO THATWE WOULD KNOW THAT?

WE CERTAINLY CO ULD , BUT I DO KNOW THAT HE DEFINITELY TESTIFIED AND WE CAN CERTAINLY SUPPLEMENT ON THE RECORD TO THAT, BUT HE DID COME UP AND TESTIFIED AF TER ALICE JOH NSON TESTIFIED , THE DOCTOR CAME UP AND TESTIFIED , AND THAT WOULD BE MY UNDERST ANDING ON. THAT

JUSTICE: AS TO THE CONFRONTATION CLAUSE ISSUE , THE PRIOR OPPORTUNITY TO CROSS-EXAMINE, BUT AS TO OUR STATUTE, THE OPPORTUNITY TO REBUT.

THAT IS WHAT I THINK IT GIVES THAT, HE HAD T HEOPPORTUNITY TO DO IT A T HIS PRIOR TRIAL. WHETHER IT HAPPENED OR NOT --

JUSTICE: I DON'T THINK OUR STATUTE TALKS ABOUT A PRIOR OPPORTUNITY.DID YOU HAVE AN OPPORTUNITYAT THIS TRIAL TO REBU T THE HEARSAY TESTIMONY?

IT MAY HAVE BEEN ABLE TO REBUT IT, MAYBE THR OUGH TRYING TO GET A DEPOSITION IN, EVEN THO UGH I T IS HEARSAY, BECAUSE IT IS THE PENALTY PHASE, BUT IT DID HE HAVE AN OPPO RTUNITY IN THIS TRIAL TO REBUT?

I WOULD SUBMIT THAT , HAD THE DEFENSE COUNSEL RAISED THE CONFRONTATION CLAUSE OBJECTION, IT WOULD HAVE ALLOWED THE STATE TO HAVE C URED THE PROBLEM AND THE STATE COULD VERY EASILY CALLED THE DR .

JUSTICE: MY QUESTION IS NOT ON THE CONFRONTATION CLAUSE ISSUE. THAT IS A SEPARATE PROBLEM. MY QUESTION IS WHET HER THE STATUTE WAS FAITHF ULLY APPLIED , AND THAT IS IT ALLOWED THE STATE TO INTRODUCE HEARSAY IN THE PENALTY PHASE, IF T HEDEFENDANT HAS THEOPPORTUNITY TO REBUT.

RIGHT.

JUSTICE: AND MY QUESTION IS, DID THE DEFENDAN T IN T HEPENALTY PHASE HAVE T HEOPPORTUNITY TO REBUT THAT HEARSAY TESTIMONY?

HE DIDN'T HAVE THE OPPORTUNITY TO REBUT IT AT THIS ONE BECAUSE HE DIDN'T PROCEED DOWN THAT PATH. HE HAD THE OPPORTUNITY TO REBUT IT IN THE PRIOR TRIAL , WHICH THIS COURT SAID IN RODRIGUEZ IS SUFFICIENT .

JUSTICE: WAS THERE OBJECTION MADE ON THE B ASISTHAT HE DID NOT HAVE THE OPPORTUNITY TO REBUT?

NO, YOUR HO NOR. THE OBJECTION WAS SIMPLY AS TO THIS DETECTIVE 'S QUALIFICATION TO RENDER AN OPINION AS TO HER INJU RIES. IT WASN'T , HIS AN SWER WAS ACTUALLY NONRESPONSIVE .

JUSTICE: DOES THE RE CORD REFLECT , ONE WA Y OR T HEOTHER , WHETHER THE DOC TOR WAS AVAILAB LE?

NO.

JUSTICE: AT THAT TI ME?

NO , YOUR HONOR, AGAIN , DEFENSE COUNSEL NE VER RAISED THE CONFRONTATION AND WE NEVER GOT TO DEVELOP ANYTHING REGA RDING THIS. WE COULD HAVE CLEAR LY, THE RECORD COULD HAVE BEEN DEVELOPED WITH MUCH GRE ATER DETAIL, HAD A PRO PER OBJECTION BEEN RAISED ON THIS.

JUSTICE: SO A CTUALLY W HAT WE HAVE HERE IS T HEOBJECTION WAS TO THE GENERAL QUESTION THAT WAS AS KED , WAS WHAT INJURIES DID SHE SUFFER.

RIGHT.

JUSTICE: THEN THE OBJECTION WAS THAT HE IS NOTA DOCTOR.

RIGHT.

JUSTICE: SO THAT WAS OVERRULED , AND THE PROSECUTOR ASKED, BASICALLY WHAT INJURIES DID SHE SU FFER, AND THEN HE SAYS, WELL , I TALKED TO THE DOCTOR . AFTER THAT POINT , WAS THERE ANY OBJECTION FR OM THE DEFENSE COUNSEL, SAYING MOTION TO ST RIKE OR NONRESPONSIVE?

NO, YOUR HONOR, AND T HAT THEREIN LIES THE PROBLEM ON THIS CASE IS THE QUESTION WAS JUST TELL US ABOUT HER INJURIES AND THEN H E PROCEEDS TO ANS WER AS TO WHAT DOCTOR TOLD HIM , AND WE DON'T KNOW ANYTHING WRARING THIS. COUNSEL -- ANYT HING REGARDING THIS. COUNSEL TALKED ABOUT HE WAS INVESTIGATING THIS, AND THERE IS NOTHING IN THE RECORD AS TO HE WAS INVESTIGATING THE ALICE JOHNSON CAS E.WE HAVE NO TESTIMONY AS TO HE WAS INVESTIGATING WHEN HE TALKED TO THE DR. THIS WAS THE MURDER OF THE PIZZA DELIVERY PERS ON AND HE, ALSO , WAS SOME WHAT INVOLVED I N THE ALICE JOHNSON HOME INV ASION ALTHOUGH IT IS NOT REALLY CLEAR TO WHAT L EVEL. HE DIDN'T HAVE M UCH KNOWLEDGE OF THAT CRIME EXCEPT IN A GENERAL SENSE , BUT TAKE ALL OF THIS AWAY AND WE ST ILL COME B ACK TO, EVEN IF THERE IS ANY ER ROR IN THIS CASE, IT IS CLEARLYGOING TO BE HARM LESS ERROR , BECAUSE WE HAVE ALICE JOHNSON HAD JUST TESTIFIED . SHE HAD JUST COME IN , APPARENTLY SHE HAD BEEN WHEELED IN, AND HAD TESTIFIED AS TO HOW ACTIVE SHE WAS AND WHAT HAVE YOU BEFORE THIS HOME INVA SION WHERE SHE WAS STRUCK REPEATEDLY WITH A HAMMER, AND THEN SHE DIDN'T HAVE MUCH RECALL AS TO THE EVENTS AFTER THAT . THE TESTIMONY THAT PIEC ES OF HER SK ULL MAY HAVE BEEN, ENDED UP IN HER BRAIN , IS , COUNSEL IS RIGHT. IT IS SOMEWHAT GRUESOME , BUT IT IS ALSO A RESULT OF WHAT THE DEFENDANT DID, AND THE JURY COULD EA SILY I N FER THAT SHE SUFFERED SOME SE VERE DAMAGES TO HER HEAD AS A RESULT OF BEING STRU CK WITH A CLAW HAMMER .

CHIEF JUSTICE: JUST TO UNDERSTAND, AND I KNOW THIS CAME UP YESTERDAY ABOUT A PRIOR VIO LENT FELONY, THE STATE TAKES THE POS ITION AND WE UP HELD THIS RIGHT, THAT THE REASON THAT DETAILS OF A PRIOR VIOLENT FELO NY CAN BE OFFERED, BECAUSE NOT ALL BATTERIES ARE THE SA ME OR NOT ALL PRIOR CRIMES ARE THE SAME , AND SO IN ORDER TO HAVE SAID , B OTH TO THE TRIAL JUDGE AS T O THE JURY, AS T O WHETHER THE AGGRAVATORS INDEED OUTWEIGH ANY MITIGATORS, UNDERSTA NDING THE NATURE OF THE PRIOR CRIME IS APPROPRIATE FOR THEM TO EVALUA TE. IS THAT CORRECT?

THAT'S CORR ECT. YEAH. THE JURY NEEDS TO KNOW , THEY ARE ENTITLED TO KNOW THE DETAILS OF THESE PRIOR OFFENSES, SO THAT THEY CAN WEIGH THE CHARACTER OF T HEDEFENDANT WHEN THEY ULTIMATELY ARE MA KING THEIR RECOMMENDATION.

CHIEF JUSTICE: NOT JUST CHARACTER OF WHETHER THE AGGRAVATOR IS SUFFICIE NTLY WEIGHTY .

CORRECT.

CHIEF JUSTICE: IF IT IS BEING REQUESTED .

AND THE COURT DISCUSSEDTHAT IN RODRIG UEZ AND DISCUSSED HAVING AN OFFICER COME IN AND TESTIFY TO IT , AS OPPOSED TO BRIN GING IN ALL OF THE OTHER WITNESSES , SO THAT IT DO ESN'T BECOME SUCH A HUGE PART OF --

JUSTICE: WE MIGHT HAVE TO REEXAMINE ROD RIGUEZ IN LIGHT OF CRAWFORD?

I DON'T THINK SO , YOUR HONOR, BECAUSE CRAWFORD SAID IF YOU HAD THE PRIOR OPPORTUNITY TO CROSS-EXAMINETHEM AT A PRIOR TRIAL OR PRIOR OFFENCE THAT RESULTED IN YOUR CON VICTION , YOU ARE GOING TO HAVE HAD THE OPPORTUNITY TO CROSS-EXAMINE.

JUSTICE: WOULD THAT REALLY BE APPLICABLE, I F WEARE TALKING ABOUT THEY MAY HAVE HAD A PRIOR OPPORTUNITYTO CROSS-EXAMINE THE MED ICAL EXAMINER . BUT IF SOME ONE E LSE S AYS WHAT THE MEDI CAL EXAMINER SAID, I THINK THE PRIOR OPPORTUNITY WOULD ACTUALLY GO TO THE PERSON WHO IS ACTUALLY DOING THE TESTIFYING NOW, SO WOULD YOU HAVE HAD A PRIOR OPPORTUNITY?

NO, BUT YOU WILL , YOU CAN EASILY REBUT IT BY INTRODUCING THINGS FROM THE PRIOR TRIAL.

CHIEF JUSTICE: WHAT EVER WE DECIDE IN THIS CASE, WE ARE GOING TO BE HAVING CRAWFORD ISSUES FROM NOW FOR THE NE XT TEN YEAR S. IT WOULD REALLY HELP THE COURT IF THE STATE DIDN'T ASSUME THAT RODRIGUEZ CONTINUES IN ITS SAME FORM , AND MAYBE LOOK AT THAT, SO THAT WE MINIMI ZE THE NUMBER OF ISSUES THAT WE HAVE GOT TO LOOK AT CRAWFORD ISSUES.

I DON'T DOUBT THAT THERE WILL AND LOT OF ISSUES COMING BEFORE THIS COURT.

JUSTICE: BEFORE YOU LE AVE , I WANT TO CLARIFY Y OUR POSITION. DO YOU CONCEDE THAT THE M EDICAL EXAMINER STATEMENTS TO THE POLICE OFFICER WERETESTIMONIAL?

NO. NOT AT ALL.

JUSTICE: WHY NOT?

BECAUSE WE DON'T KNOW THE CONTEXT OF THEM. WE DON'T KNOW , AS I SAID , NOTHING WAS DEVELOPE D. WE HAVE NO IDE A WHAT T HIS OFFICER WAS DOING, WHEN H E LEARNED THIS INFORMATION FROM THE DOCTOR. WE DON'T KNOW THAT HE WAS QUESTIONING THE DOCTOR. WE DON'T KNOW THE CON TEXT OF IT WHAT SOEVER .

JUSTICE: HOW ARE W E SUPPOSED TO ANAL YZE THE ISSUE THEN?

I WOULD SAY LOGI CALLY YES. LOGICALLY IT AP PEARS T HEPOLICE OFFICER WAS THERE CONDUCT AGO INVESTIGATIONWHICH WOULD PROB ABLY FALL UNDER TESTIMONIAL BUT WE JUST DON'T KNOW.

JUSTICE: WE NEED TO ANALYZE IT UNDER THE CIRCUMSTANCES OF THE CASE SO FAR. THE SUPREME COURT HAS, FROM CRAWFORD, WE CAN SUR MISE THAT WE NEE D TO DETE RMINE WHETHER THE MEDICAL EXAMINER'S STATEMENTS TO THEPOLICE OFFICER WERE INTENDEDTO BE INTRO DUCED AT A TR IAL AND THEREFORE WERE TESTIMONIAL, SO HOW ARE W E GOING TO ANA LYZE THAT IN A VACUUM?

I DON'T THINK YOU HAVE TO ANALYZE IT IN THIS CASE BECAUSE IT WAS N'T PRESER VED , YOUR HONOR, AND HAD IT BEEN PRESERVED, WE WOULD HAVE H ADA BETTER RECORD TO EN ABLE YOU TO ANAL YZE IT BETTER BUT WE DON'T HAVE THAT HER E AND THAT IS THE PROBLEM. IT MAKES IT DI FARE CONSULT TO ANALYZE -- DIFFIC ULT TO ANALYZE, BECAUSE WE DIDN'T KNOW WHAT IS GOING ON .

CHIEF JUSTICE: JUSTICE BELL HAD A QUESTION .

JUSTICE: TALKING AB OUT THE MEDICAL EXAM INER , ARE W E TALKING ABOUT THE ER PHYSICIAN?

NOT THE MEDICAL EXAMINER BUT JUST A DOCTOR. HE WAS GOING ALONG WITH THAT .

JUSTICE: I APPREC IATE I T.

CHIEF JUSTICE: NO. WE KNOW WE ARE STILL TALKING ABOUT ISSUE ON E AND WHATEVER THE MEDICAL INDIVI DUAL WAS .

THE DOCTOR AND THAT IS ALL WE KNOW IS HE SAID I SPOKE TO A DOCTOR AND THIS IS WHAT HE TOLD ME. I AS SUME IT WAS HER TREA TING PHYSICIAN, BUT, A GAIN , WE DON'T KNOW, SO BRIEFLY GOING ON T O THE NEXT CRAWFORD ISSUE, I GUES S WOULD B E ISSUE THREE. WHICH DE ALS WITH TWO OBJECTIONS ON HEARSAY GROUNDS, AG AIN , COUNSEL DIDN'T OBJECT AND RAISE THE CONFRONTATION CLAUSE ISSUE, EVEN TH OUGH CRAWFORD H ADCOME OUT. AND I CITED CASES IN MY BRIEF THAT SAY THAT HEARSAY OBJECTION ISN'T SUFF ICIENT TO PRESERVE A CONFRONTATION CLAUSE ARGUMENT BECAUSE THEY ARE SEPAR ATE.

JUSTICE: IS OR IS NOT?

IS NOT SUFFICIE NT. IT IS JUST A GENERALIZED HEARSAY - -

JUSTICE: THERE IS A CONTEST OF HEARSAY IN CRAWFORD. THAT HA SN'T CHA NGED THE LANDSCAPE? A HEARSAY OBJECT ION DO ESN'T AUTOMATICALLY --

I THINK YOU STI LL HAVE T O MENTION THE CON FRONTATIONCLAUSE, BECAUSE THAT TRIGGERS THE COURT'S ANALYSIS INTO WHETHER THE PERSON WAS UNAVAILABLE AND WHETHER THEY HAD THEOPPORTUNITY. I THINK THAT IS A V ERY TRIGGERING TE RM. IT IS A MA TTER OF , YOU KNOW --

JUSTICE: THERE ARE TWO DIFFERENT TY PES O F ANALYSIS.IF YOU ARGUE IT IS HEARSAY , YOU LOO K AT THE EVIDENCE CODE AND DOES IT FALL UNDER THE DEFINITION OF HEARSAY. IF IT DOES , ARE YOU SAYING THAT THERE IS A EXCE PTION THAT MAY APP LY AND WHEN YOU TALK ABOUT A CONFRONTATION CLA USE, WAS IT TESTIMONIAL , AVAILABILITY, THE OPPORTUNITY TO CROSS-EXAMINE, THOSE KINDS OF THINGS?

CORRECT, AND IN THIS C ASE I THINK IF YOU GET PAST THAT AND WANT TO LOOK INTO IT , THE STATEMENTS TO EDWARD L , THE TR UCK DRIVER.

JUSTICE: A MINUTE. WHAT WAS THE BASIS OF THE PRETRIAL M OTION ?

THAT HAD TO DO WITH T HEPENALTY PHA SE. THESE ARE GU ILT PHASE O NES.IS THAT WHAT YOU ARE TALKING ABOUT?

JUSTICE: THERE WAS A HEARSAY CONFRONTATION PRETRIAL MOTION , CORRECT?

THAT WENT TO THE PEN ALTYPHASE , ADMISSIBILITY OF I T IN THE PENALTY PH ASE. THEY DIDN'T APPLY ANY OF THAT TO THE GUILT PHASE.

JUSTICE: SO ON THE PENALTY PHASE, ISSUE ONE.

RIGHT. CORRECT .

JUSTICE: YOU STILL MAINTAIN THAT, EVEN THOUGH THAT MOTION WAS FILED --

CORRECT.

JUSTICE: -- THERE STILLNEEDED TO BE A MORE SPECIFIC OBJECTION WHEN THE DETE CTIVE GOT ON THE STAND.

CORRECT.

JUSTICE: THEY SHOU LD HAVE , AGAIN , MENT IONED HEARSAY.

CORRECT. OUR STATE'S POSITION IS THAT THAT GENERALIZED MOTION PRETRIAL DID NOT PRES ERVE IT UNDER SECTION 90.104. THE COURT DID NOT G IVE A DEFINITIVE R ULING AS T O THAT , SO --

JUSTICE: WAIT. THERE IS TWO DIFF ERENT ISSUES. IF THE COURT WOULD HAVE GIVEN A DEFINITIVE RU LING PRETRIAL, DO YOU STILL ARGUE THAT THE DEFENDANT WOULDHAVE HAD TO RE NEW IT W HEN THE TESTIMONY WAS INTROD UCED ?

I DON'T THINK HOW THE -- I DON'T KNOW HOW THE COURT COULD HAVE GIVEN A DEFINITIVE RULE ,, NOT KNOWING THAT THAT MAY BE THE CASE.

JUSTICE: RIGHT , BUT A REYOU STILL ARGUING THAT GIVEN A DEFINITIVE MOTI ON THAT THEY STILL WOULD HAVE HAD T O RENEW THE OBJECTION DURING THE TESTIMONY?

I THINK THE WORD ING OF THE STATUTE WOULD ALLOW AM NOT TO REN EW THAT OBJECTION, IF HE GOT A DEFINITIVE RULING.

JUSTICE: THAT IS THE BIG OBSTACLE HERE IS THAT THERE WAS NO DEFINITIVE RUL ING.

CORRECT. CORRECT, YOUR HONOR. I WAS TALKING TO THE , A BOUT THE STATEMENTS TO EDWARD L AS NOT BEING TESTIMONIAL UNDER CRAWFORD , EXCITED UTTERANCES. I BELIEVE COUNSEL HAS PRETTY MUCH CONCEDED THAT THEY WERE IN THIS CASE , ADMITTED UNDER EXCITED UTTER ANCES AND PROPERLY SO.

JUSTICE: WHAT ABOUT THE ONES TO THE POLICE OFFICER?

AS YOU SAID EARLIER , YOURHONOR, I THINK THAT THAT IS PRESENTED A MURKIER PICTURE AND THE JURIS DICTIONS ARE KIND OF SPLIT ON THAT , AND YOU KNOW, THAT IS PENDING IN THE U .S. SUPREME COURT NOW , AND THEY ARE GOING TO HAVE ARGUMENT ON THAT LATER THIS MONTH . AND I KNOW THAT SOME JURISDICTIONS WA NT TO AD OPT THE CASE-BY-CASE BASIS , YOU KNOW, LET'S LOOK AT IT A NDSEE WHAT THE FA CTS ARE WIT H ANY GIVEN CASE. YOU HAVE AN OFFICER RESPONDING TO THE S CENE AND TAKING INITIAL QUESTIONS AND WHETHER THAT IS TESTIMONIAL IN NATURE I S PRETTY SLIT , AND THERE ARE STANDARDS GOING BOTH WA YS.

JUSTICE: I THINK THE CIRCUMSTANCES OF THE OFFICER IS AT THE SC ENE WITH MR . LAWLEY, I KNOW HE DIED BUT WHAT WAS , WHAT WERE HIS SKIRK SUBSTANCES AT THE T IME ? -- CIRCUM STANCES AT THETIME?

HE HAD BEEN SHOT AND WAS