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Robert Ira Peede v. State of Florida
SC04-2094 | SC05-1885
WE'LL PROCEED TO THE FINAL CASE ON THE DOCKET THIS MORNING. PEEDE VERSUS THE STATE OF FLORIDA, IF I AM PRONOUNCING THAT CORRECTLY? >>> GOOD MORNING, MISS MURPHY, IF YOU WOULD LIFT THE MICROPHONE UP AND TILT THE HEAD UP A LITTLE BIT. THERE YOU GO. OKAY. GOOD MORNING. GOOD MORNING. MAY I PLEASE THE COURT, MY NAME ISTIVE IF I MURPHY I REPRESENT ROBERT PEEDE. THE BRADY ARGUE AMS TO THE POINT THEY RELATE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL. >> WITH CCRC? >> I USED TO BE. I WORK FOR THE DISTRICT OF NEVADA. >> OF WHAT? >> THE FEDERAL DEFENDANT FOR THE DISTRICT OF NEVADA. I USED TO WORK FOR CCRC. >> WELCOME BACK TO FLORIDA. >> THANK YOU, YOUR HONOR. >> MR. PEEDE WAS DENIED WHEN HIS COUNSEL FAILED TO FOLLOW UP ON VARIOUS MITIGATION LEADS THAT WERE PRESENED TO THEM DURING THE INVESTIGATION OF MR. PEEDE'S CASE THE FAILURE TO FOLLOW UP ON THE LEADS RESULTS IN TWO VALID AGGRAVATEORS BEING PRESENTED WITHOUT ANY MITIGATION TO THOSE. HAD THIS INFORMATION BEEN PROVIDED, IT WOULD HAVE RESULTED IN A SENTENCE LESS THAN DEATH. MR. PEEDE, UM, -- TRIAL COUNSEL FOR HIM AT VARIOUS POINTS WANT TO PREVENT METGATION EVIDENCE REGARDING THE MENTAL ILLNESSES DURING THE INVESTIGATION, THEY CONTACTED PRIOR COUNSEL AN ASKED FOR PSYCHIATRIC REPORTS REGARDING HIS DILUTION AND MENTAL INSTABILITIES, THEY IN THEIR OPENING STATEMENT TO THE COURT DURING HIS TRIAL STATED THE FACT THAT HE HAD FLEW A RAGE AND HAD COMMITTED THIS CRIME IN AN IMPULSE AND STATED THE FACT HE HAD A SPLIT PERSONALITY AT THE EVIDENTIARY HEARING THEY CONTINUED TO TESTIFY TO THE FACT THEY WANTED TO PRESENT MITIGATION EVIDENCE REGARDING THE MEANTLE ILLNESS, BUT FAILED TO DO SO. THEY HAD THEY FOLLOWED OUP IN THE LEADS PROVIDED BY HIM IN THE SEVERAL PRETRIAL CAN CONFERENCES THEY HAD WITH HIM REGARDING THE FAMILY MEMBERS WHO CONTACTED THE TRIAL COUNSEL AN ASKED FOR FACTS OR COME THOITION COME TO THE TRIAL TOLL PROVIDE INFORMATION REGARDING HIS MOTHER'S SUICIDE, HIS SEVERAL SUICIDE ATTEMPTS, AND HIS SITS ZO FRIENDIC DIAGNOSIS FOR THE PRIOR CONVICTION, IT WOULD HAVE PROVIDED SUBSTANTIAL MITIGATION TO THE MENTAL HEALTH EXPERT WHO RELIES SOLELY ON MR. PEEDE'S SELF- REPORTING. >> WE HAVE TO TAKE A FOUNDATION FOR YOUR CLAIMS, THE FACT THAT THE DEFENDANT BASS UNCOOPERATIVE WITH THE COUNSEL DURING THE TRIAL, DO WE NOT? >> TO THE POINT HE WAS UNCOOPERATIVE IT WAS BECAUSE OF THE DELUSIONAL DISORDER WHICH WAS FOUND BY THE POST- CONVICTION COURT; HOWEVER, IN CASES DECIDED BY THIS COURT AND VARIOUS OTHERS, THE FACT THAT A DEFENDANT MAY BE UNCOOPERATIVE DOES NOT NEGATE THE COUNSEL OBLIGATION TO DO A REASONABLE INVESTIGATION INTO MITIGATION. >> IT DOES IMPEDE THE ABILITY TO DO SO, DON'T IT? >> TO A CERTAIN EXTENT; HOWEVER, MR. PEEDE DID PROVIDE VARIOUS AVENUES FOR THEM TO FOLLOW UP ON. THEY DID USE THOSE AVENUES. HE PROVIDED AN ADDRESS TO PEOPLE IN NORTH CAROLINA THEY COULD CONACT. HE EXPLAINED ABOUT HIS PRIOR CONVICTION IN CALIFORNIA AND THEY FOLLOWED UP ON THOSE LEADS AND CONTACTED PEOPLE IN NORTH CAROLINA CALLED THE COUNSELS BUT NEVER OBTAINED THE RECORDS AFTER TAKING ON THE INFORMATION THAT MR. PEEDE GAVE THEM. HAD THEY JUST GOTTEN THE CALIFORNIA CONVICTION RECORDS THERE WAS WEALTH OF MITIGATION EVIDENCE WHICH WOULD HAVE CHALLENGED THING A AGGREGATE VAITOR THAT THE STATE PRESENTED. THIS COURT HAD STRUCK CCP ON DIRECT APPEAL, SO THE ONLY TWO AGGRAVATEORS THAT WERE VALID BEFORE THE JURY AND THE COURT WERE THE PRIOR FELONY AND FELONY COMMITTED DURING THE COURSE OF THE MURDER. HAD THEY GATHERED THE RECORDS WHICH DIAGNOSED HIM AS SCHIZOFRIENDIC. IT WAS CASE OF IM PER ECT SELF-DEFENSE, BECAUSE HE WAS BEING TAKD, HE WAS DEFENDING A WOMAN, SHOT THE PEOPLE WHO ATTACKED HIM, THE FACT THAT HE PLEAD NO CONTEST TO SECOND-DEGREE MURDER, THE PROBATION OFFICE AND VARIOUS OTHER OFFICES SAID WE'LL GIVE HIM THREE YEARS BECAUSE WE REALIZED EXTREME MITIGATION. HAD CHILD COUNSEL USEED THAT INFORMATION, OBTAINED THAT INFORMATION FROM THE VARIOUS AGENCIES IT WOULD HAVE STRONGLY MITIGATED THE FELL NAY WAS PRESENTED DURING THE OPINION TY PHASE OF THE TRIAL. IN ADDITION TO THE MITIGATION THAT WAS NOT PRESENTED, UM, VARIOUS WITNESSES CONTACTED TRIAL COUNSEL AN ASKED TO BE A PART OF THE EVIDENTIARY, PART OF THE PENALTY PHASE, NANCY WAGNER, WHO WAS HISTORIAN FOR THE FAMILY STATED THE FACT SHE WANTED TO COME TO EXPLAIN MR. PEEDE'S MENTAL DEFRATION THE TIME HE WAS IN THE PRE-TEEN YEAR, THE EFFECT OF HIS MOTHER'S SUICIDE ON HIM, HIS OWN EXTENSIVE ABUSE WHILE AT THE HOME, AND NONE OF THIS INFORMATION WAS GIVEN TO THE DOCTOR, MUCH LESS EVEN PRESENTED IN MITIGATION. THE ONLY THING THAT DR. KIRKLAND HAD TO USE WAS THE SELF-REPORTING OF MR. PEE DE. THAT WAS IT. THAT WAS BASED OFF TWO EVALUATIONS THAT WERE DONE. ONE WAS COMPETENCY AND IT LASTED AN HOUR, THE SECOND ONE WAS AFTER MR. PEDE HAD BEEN CONVICTED OF FIRST-DEGREE MURDER, I WAS ONLY 40 MINUTE,. DURING THE STATE'S CROSS, THEY SPENT PRETTY MUCH THE PREDOMINANT TIME DESTROYING HIS EVALUATION. THEY FOCUSED ON THE FACT THAT HE FAILED TO KNOW THE FACTS OF THE CASE. HE FAILED TO TALK TO ANY COLLATERAL WITNESSES, REVIEW ANY OF THE PREVIOUS MENTAL HEALTH DIAGNOSISS MADE BY PRIOR DOCTORS REGARDING MR. PEEDE'S MENTAL HEALTH AND IN ANY OF THIS SITUATION COME TO ANY KIND OF AN UNDERSTANDING OF HOW IT ALL IMPACTED ON MR. PEEDE'S MENTAL HEALTH. >> THERE WERE OTHER MENTAL HEALTH WITNESSES PRESENTED AT THE EVIDENTIARY HEARING, CONSIDER RECT? >> THAT IS TRUE. >> WHAT IS THE FAIR DIAGNOSIS OF MR. PEEDE SIMILAR TO WHAT DR. KIRKLAND, I BELIEVE IT IS, HAD TESTIFIED TO AT THE PENALTY FADES? WELL, WHAT DR. KIRKLAND TESTIFIED TOO WAS NOT A DIAGNOSIS. HIS TESTIMONY PRETTY MUCH WAS THE FACT THAT MR. PEEDE WAS PARANOID, HAD PARANOID ELEMENTS. THAT IS NOT A DIAGNOSIS. AT THE EVIDENTIARY HEARING, HE WAS FOUND BY ALSO THE COURT TO SUFFER FROM DELUSIONAL DISORDER OF THE JEALOUS TYPE WHICH DID NOT COME OUT IN ANYWAY SHAPE OR FORM TO THE JURY OR THE JUDGE ON THE PENALTY PHASE. IN ADDITION TO THAT, UM, THE COURT EXPLAINED HOW PARANOID PERSONALITY DISORDER WHICH ALL FOUR OF THE MENTAL HEALTH EXPERTS AT THE EVIDENTIARY HEARING FOUND, THEY STATED THAT THIS IS A COMPLETELY DIFFERENT DIAGNOSIS THAN WHAT WAS PRESENTED AT THE OPINION TY PHASE, IT IS A PERVASIVE DISORDERER THAT EFFECTS EVERY DECISION HE MAKES. IT EAFFECTS HOW HE BEHAVES IN EVERY CATEGORY. IT IS NOT WANING. THERE WAS NO EXPLANATION FROM DR. KIRKLAND AS TO HOW THIS DISORDER AND HOW THIS PARANOID PERSONALITY DISORDER AFFECTED HIS PEE HAIVIER AT THE TIME OF THE OFFENSE AND HOW IT AFFECTED HIS BEHAVIOR OVERALL AND INTERACTING WITH COUNSEL AND, YOU KNOW, IN BOTH THE PRIOR CONVICTION WHICH WAS ANING A VAUTOR ALSO IN THE ATTACK. IN ADDITION, HAD THIS INFORMATION BEEN PRESENTED IT WOULD HAVE NEGATED THEDZ FELONY AN IN ADDITION TO THAT, IT WOULD HAVE NEGATED THE MURDER FELONY DURING THE COURSE OF A MURDER. ONE OF THE ARGUMENTS WE RAISED IN OUR INITIAL IS THE FACT THAT THE STATE WITHHELD INFORMATION RELATED TO A DIARY AND SEVERAL STATEMENTS FROM THE CALIFORNIA POLICE DEPARTMENT THAT WOULD HAVE PRESENED SUBSTANTIAL ADDITIONAL MIT IS GOING AN LEADS TO THE DEFENSE. THE DIARY WAS WRITTEN BY DARLA PEEDE PRIOR TO THE YEAR THAT THE MURDER ACTUALLY OCCURRED AND IN THAT DIRERY, SHE STATED THE FACT SHE BELIEVED HER HUSBAND NEEDED PSYCHIATRIC HELP. UNADDITION TO, THAT SHE STATED THE FACT, SHE WANTED TO RECONCILE WITH HER HUSBAND SHE HAD BEEN SEPARATED FROM HIM FOR A TIME. HAD THIS INFORMATION BEEN TURNED OVER, IT WOULD HAVE PROVIDED TO DR. KIRKLAND, ANOTHER BASIS TO UNDERSTAND, HE WAS SUFFERING SOME TYPE OF MENTAL IMPAIRMENT AT THE TIME OF THE OFFENSE. >> AND THE PROSECUTOR IN THE CASE TESTIFIED THAT THIS DIARY WAS, IN FACT, SHOWN TO THE DEFENSE ATTORNEY AND THE DEFENSE ATTORNEY DECIDED THAT HE DID NOT WANT TO USE IT OR -- >> AT THE EVIDENTIARY HEARING. THE STATE DID SAY THE FACT IT WAS SHOWN TO TRIAL COUNSEL; HOWEVER, AS IT WAS, IT OPENED THE FILE POLICY ON THE PART OF THE STATE THAT DID NOT NEGATE THE OBLIGATION TO TURN OVER EVIDENCE. >> DO YOU WANT KNOW MAKE A COPY? I THOUGHT SHE ALSO SAID THAT SHE ASKED HIM SPECIFICALLY WOULD YOU LIKE ME TO MAKE A COPY OF THIS SO YOU CAN HAVE IT? >> THAT EVIDENCE IS NOT SUPPORT PID THE DOKE MACHINE TEARY EVIDENCE FROM THE EVIDENTIARY HEARING, DEFENSE EXHIBIT 1 THROUGH 5 ON THE EVIDENTIARY HEARING STATES THE DISCOVERY DISCLOSURES PROVIDED BY THE STATE, NOWHERE ARE ETH ARE THE CALIFORNIA STATEMENTS OR THE DIARY LISTED AS EVIDENCE THAT WAS TURNED OVER. TO TRIAL COUNSEL. IN ADDITION TO HA. BOTH TRIAL COUNSELS. >> RESPOND TO REMEMBER QUESTION, PLEASE. SHE ASKED THE QUESTION AS TO WHETHER THERE WAS A DISCUSSION ABOUT TURNING THESE OVER. DID THAT OCCUR DID THE EVIDENCE SHOW IT DID NOT OCCUR? >> I DO NOT BELIEVE BASED ON THE EVIDENTIARY TESTIMONY IT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE. >> BUT SHE DID SAY IT? >> SHE DID SAY IT. THAT IS TRUE. UNADDITION TO THE DIARY, THERE WERE SEVERAL STATEMENTS THAT THE POST- CONVICTION COURT FOUND WERE NOT TURNED OVER. THE STATE ADMITTED THEY DID NOT TURN OVER. THESE STATEMENTS RELATE TO SEVERAL PEOPLE AT THE COUNTY POLICE DEPARTMENT FROM THE PRIOR AND WENT TO NORTH CAROLINA TO INVESTIGATE MR. PEE'S BACK KBROUBD. >> LET M ME ASK YOU THIS. THIS IS INFORMATION THAT WAS NOT DEN RATED BY GRB -- NOT GENERATED BY THE PROSECUTOR HERE OR BY THE POLICE HERE, BUT IT WAS OBTAINED DURING THE COURSE OF THE STATE INVESTIGATION OF ALL OF THIS? >> YES. THE STATE DB -- >> I GUESS, I AM SOMEWHAT CONCERNED ABOUT WHAT IS THE OBLIGATION OF THE STATE VERSUS THE DEFENDANT WHEN THEY ARE BOTH OUT INVESTIGATING THE CASE. AND THE STATE GETS SOMETHING IN THE COURSE OF THEIR INVESTIGATION, THAT THEIR POLICE DID NOT GENERATE. WHATS THE OBLIGATION HERE? >> THE OBLIGATION IS IF THE STATE IS GOING TO USE AS A FELONY AGGRAVATEOR INFORMATION RELATED TO THAT PRIOR CASE WHEN THEY OBTAINED THOSE FILES THEY HAVE A DUTY TO TURN OVER AS IN ANY SITUATION IM PARTICIPATEMENT EVIDENCE, THESE STATEMENTS ARE EX CULPA TORY TO THE PRIOR VERY LENT FELONY. >> HE WAS CONVICTED? >> THAT IS RU. HE WAS. IN ADDITION TO WHICH, THE STANDARD FOR PREJUDICE FOR BRADY US THE SAME WHERE TRIAL COUNSEL FAILED TO PURSUE THIS INFORMATION AS STATED, THEY WERE INEFFECTIVE FOR FAILING TO GET THIS INFORMATION. >> IT HAS BEEN ARGUED AT BOTH. I THINK, LIKE SAID, TO THE POINT WHERE TRIAL COUNSEL FAILED TO PURSUE THIS INFORMATION ON THEIR OWN LEAD, IT IS AN EFFECTIVENESS OF COUNSEL. HOWEVER, THE STATE HAS AN INDEPENDENT DUTY TO TURN OVER EVIDENCE -- DID THE STATE HAVE THIS INFORMATION IN THEIR FILE? YES, THEY DID HAVE THIS. IT WAS FOUND IN BOTH CONVICTION IN THEIR FILES. IT WAS NOT FOUND IN THE TRIAL COUNSEL FILE AT THE EVIDENTIARY HEARING. TRIAL COUNSEL STATED THEY NEVER SEEN THIS INFORMATION. THIS IS INFORMATION THEY WANTED. >> WHEN DID THE STATE RECEIVE THE FILE? THAT THIS PUBLIC DEFENDER FILE ON THE CALIFORNIA CONVICTION? >> THEY RECEIVED IT FROM THE CALIFORNIA DISTRICT ATTORNEY'S OFFICE AND IT WAS RECEIVED BECAUSE IT WAS PART OF ADDITIONAL STATEMENTS. THEY CONTACTED ONE WITNESS WHO TESTIFIED FOR THE STATE REGARDING THE PRIOR FELONY. HIS STATEMENT WAS AMONG THE OTHER ONES THAT THEY ACTUALLY USED. DURING THE OPINION TY PHASE AND PREPARING THEIR WITNESS. >> I AM HAVING TROUBLE UNDERSTANDING YOUR ARGUMENT THAT THE RECORDS IN CALIFORNIA WERE SOMEHOW EXCULPA TO ROY WHEN THE CASES I READ THAT IT TENDS TO EX CULPATE EVIDENCE OF THE CRIME. THEY DON'T SEEM TO FOR ANY OTHER CRIME EITHER. >> THERE ARE TO THE AGGRAVATING CIRCUMSTANCE PREVENTED IN THE PENALTY PHASE. THE FACT THAT -- >> THEY OF THOSE? >> THESE STATEMENTS EXPLAIN THE MENTAL STATE REGARDING THAT OFFENSE. >> THAT IS DIFFERENT? >> THAT IS TRUE, YOU YOUR HONOR SDMISMTS RENT FROM THAT. THESE ARE THING THESE TRIAL COUNSEL COULD HAVE FILED UP UNDER AND INVESTIGATED AND COULD HAVE USED TO MITIGATE THE AGGRAVATING CIRCUMSTANCE PREVENTED BY THE STATE. >> YOU ARE WELL INTO REBUTTAL? >> I WILL OB SERVICE THE REST OF MY TIME. THANK YOU. >> MR. BROWNE? >> GOOD MORNING. SCOTT BROWNE FOR THE STATE EVER FLORIDA. YOUR HONOR, THIS IS NOT A CASE WHERE THE DEFENSE COUNSEL FAILED TO INVESTIGATE HIS DEFENDANT MENTAL'S CONDITION. PRIOR TO TRIAL, THE EXPERIENCED TRIAL ATTORNEY, JUDGE BRONSON AND JOE HIRED DR. KIRKLAND TO EXAMINE PEEDE. HE FOUND THAT PEEDE SUFFERED FROM PARAGLIRX THAT HE HAD DILUTION REGARDING HIS EX-WIFE POSING IN MAGAZINE, THAT HE HAD ANTI-SOCIAL TRAITS, THAT HE HADEN EXPLOSIVE AND SOMETIMES VIOLENT PERSON PERSONALITY. DR. KIRKLAND WAS QUITE A FIND IN THE CASE BECAUSE THE DEFENSE ATTORNEY TESTIFIED AND IT WAS UNREBUILTED THAT HE WAS THE PREEM ENT FORENSIC PSYCHIATRIST IN ORANGE COUNTY IN THE 1980s AND HE ROUTINELY TESTIFIED BOTH FOR THE DEFENSE AND THE STATE. HE TESTIFIED FAVORABLY FOR THE DEFENSE DURING THE PENALTY PHASE. IN FACT, HE TESTIFIED THAT PEEDE HAD PERSONALITY PARANOID AND THAT HE HAD A DILUTION REGARDING HIS EX-WIFE POSING IN A SWINGER MAG GLEN. >> THE CONCERN I HAVE WITH THIS IS THAT HE EXAMINED THE DEFENDANT A COUPLE OF TIMES, BUT THE DEFENSE COUNSEL EVER GYM HIF ANY INFORMATION ABOUT THE FAMILY? DID HE GIVE HIM ANY PRIOR RECORD IS? MEAN, WE KNOW THAT IN A PRIOR PROCEEDING, HE HAD BEEN FOUND INCOMPETENT AND THOSE KIND OF THING, SO WAS THE ONE -- HE MIGHT NO HAVE BEEN FOUND, BUT WE HAVE THE INFORMATION FROM THE RECORDS AN CALIFORNIA, WHAT, WHAT WAS GIVEN TO DR. KIRKLAND BY THE DEFENSE ATTORNEY THAT AIDED A HIM IN MAKING HIS DIAGNOSIS OF THIS DEFENDANT? >> WELL, FIRST OF ALL, THE DEFENSE ATTORNEYS TESTIFIED. I THINK IT WAS THAT HE DISCUSSED PEEDE'S BACKGROUND PRIOR TO THE EXAMINATION. DURING THE TIME HE REPRESENTED MR. PEEDE. >> HOW MUCH HAD HIS BACKGROUNDS INVESTIGATED AT THIS POINT. I THINK A FAIR AMOUNT, YOUR HONOR, AS YOU CAN SEE FROM THE RECORD, HE TALKED TO THE POLICE CHIEF IN NORTH CAROLINA. HE OBTAINED, HE HAD AN INVESTIGATIVE GO TO NORTH CAROLINA. IT IS NOT SURE, I MEAN, THIS CASE WAS TRIED IN 1984. WE HAD THE DEFENSE ATTORNEY TESTIFYING DURING THE HEARING THAT HE DISCOCUSSED PEEDE'S BACKGROUND. YOU HAD THE TESTIMONY LATER ON OF DR. FURBER THAT HE INDICATED THAT PEEDE WAS A GOOD HISTORIAN. IN OTHER WORDS, PEEDE COULD RECITE DETAILS OF HIS LIFE FOR HIM. THERE WAS EVIDENCE THAT ANY CRITICAL INFORMATION WHATSOEVER THAT WOULD HAVE HAD ONE IMPACT, ONE EYE OAT TA OF DIFFERENCE, WOULD HAVE MADE A DIFENCE IN THIS CASE IN DR. KIRKLAND'S OPINION. REMEMBER, HE TESTIFIED BURG THE PENALTY PHASE THAT THE EXTREME EMOTIONAL DISTURB ABC, SO HIS TESTIMONY WAS FAVORABLE AND HE WAS NOT IMPEACHED AS THE DEFENSE COUNSEL BY THE LACK OF BACK GROUP INFORMATION. THAT WAS ONE SMALL PART OF THE VERY LIMITED IMPEACHMENT OF DR. KIRKLAND. BUT REMEMBER, HE WAS NOT A DEFENSE WITNESS. HIS CREDIBILITY WAS THE FACT THAT HE TESTIFIED ROUTINELY BOTH FOR THE STATE AND THE DEFENCE. >> WHAT STATUTORY MIT DPITORS DID HE TESTIFY TO. WHICH WERE FOUND? >> IT WAS FOUND EMOTIONAL DISTURBANCE THET TIME OF THE OFFENSE BASED ON HIS MENTAL CONDITION. THAT WAS FOUND BY THE TRIAL COURT IN THE CASE. THE FACT THAT NOW IN POST CONVICTION. WE HAVE TWO DEFENSE EXPERTS, DR. FISHER WHO TESTIFIED, CLUESIVELY FOR THE DEFENSE IN CAPITOL IT IS AS THEY WOULD HAVE FOUND ONE ADDITIONAL MITIGATEOR THAT THE CAPACITY TO CONFIRM HIS DEBEHAVIOR TO THE RESPONSE OF THE LAW WAS SUBSTANTIALLY IMPAIRED MAKES NO DIFFERENCE IN THIS CASE. FOR TWO REASONS -- THE FACT THAT HE HAD FOUND MORE FAVORABLE EXPERTS LATER DOESN'T REBDER THE ORGINAL OPINION OF DR. KIRKLAND INCOMPETENT AND SECONDLY, I WAS COUNTERED BY TWO STATE EXPERTS WHO TESTIFIED THAT THAT MIT GITOR TO CONFIRM IS BEHAVIOR THE REQUIREMENTS OF THE DRAW NOT APPLY. IN FACT, IN HIS OPINION NEITHER MIT GITOR FOUGHT IN THE CASE. WHAT YOU HAVE HERE IS ADDITIONAL INFORMATION THAT WAS DEVELOPED IN POST CONVICTION IT AMOUNTS TO VERY LITTLE. THREE LAY WITNESSES WERE CALLED TO THE DEFENSE OF POST CONVICTION, THEY TESTIFIED TO A MIXED BAG THAT HE WAS VIOLENT, THAT HE PUSHED DOWN HIS ELDERLY AUNT, THAT HE WAS MEAN TO WOMEN WHO REJECTED HIM, THAT HE IN FACT WHEN HE WAS CALLED TO TESTIFY, ONE OF THE LAY WITNESS, HE THREATENED TO KILL HIM. THAT INFORMATION ALONE, IF THAT WAS HAVE DUESED DURING THE PENALTY PHASE WAS SO DEVASTATING THERE IS NOT A CHANCE OF A DIFFERENT RESULT IN THE CASE. HAD THAT INFORMATION -- >> WOULD YOU SHIFT YOUR FOCUS TO THE PRIOR VIOLENT FELONY, THE CALIFORNIA? >> YES, YOUR HONOR. GIVES A COMPARISON OF WHAT THE DEFENSE LAWYERS INVESTIGATED AP KNEW ABOUT THE CIRCUMSTANCES OF THAT CRIME IN ORDER TO COUNTER AS A SUBSTANTIAL AGGRAVATEOR AN ANY EVIDENCE THAT CAME OUT IN POST-CONVICTION HEARING ABOUT THE CIRCUMSTANCES OF THAT CRIME, IN OTHER WORDS, WAS THERE A SUBSTANTIAL DIFFERENCE BETWEEN HOW THAT CRIME WAS PREVENTED AND THE ROLE OF THE DEFENDANT IN THAT CRIME? THE ORIGINAL PENALTY PHASE OF THE TRIAL AND POST-CONVICTION HEARING AS YOUR OPPONENT LED OFF WITH HERE, THAT IS THAT ALTHOUGH HE WAS CONVICTED OF THE DEATH, SECOND-DEGREE MURDER THAT THE CIRCUMSTANCES WERE NEAR, NOT NEARLY AS EGREGIOUS AS IT MAY HAVE BEEN MADE TO APPEAR? SO FLUSH THAT OUT IN TERMS OF WHAT OCCURRED, WHAT DID THE DEFENSE LAWYERS KNOW ABOUT THAT AT THE ORIGINAL PENALTY PHASE AND WHAT INVESTIGATION AND EVIDENCE THEY DID PRECEPT COMPARED TO THE EVIDENTIARY HEARING IN POST-CONVICTION. >> YES, YOUR HONOR. FIRST OF ALL, THIS IS NOT A CASE WHERE COUNSEL DID NOT INVESTIGATE THE PRIOR CONVICTION. COUNSEL TESTIFIED THAT THEY LEAD TO DEFCTIVE UP THERE I THINK HE ALSO TESTIFIED THAT THEY REVIEWED A NUMBER OF WITNESSES STATEMENTS FROM THE CALIFORNIA MURDER, IN FACT, THEY HAD AN OPPORTUNITY GO OUT TO CALIFORNIA AND TALKING TO THE DEFENSE ATTORNEY, SO THIS IS NOT A CASE WHERE THEY DID NOT INVESTIGATION THE PRIOR CONVICTION. NOW WHAT WE HAVE IN POST- CONVICTION IS AS I SEE IT A SINGLE INCORRECT REFERENCE TO A FIRE DIAGNOSIS OF SCHIZOPHRENIA IN CALIFORNIA, AS FAR AS I CAN TELL,S THAT YOU THE ONLY FAVORABLE RECORD FROM HIS IMPRISONMENT. >> SETTING ASIDE THE DIAGNOSIS OR THE REFERENCE TO SCHIZOPHRENIA IN CALIFORNIA, THE CIRCUMSTANCES OF THE CRIME, IN OTHER WORDS, THAT THE ORIGINAL, YOU'RE OPINION NENT CLAIMS HERE THAT THE IS OF THE CRIME IN CALIFORNIA WERE REALLY SUBSTANTIALLY EXPLAINED AWAY THE USE OF THIS AS A VERY SERIOUS AGGRAVATEOR, OBVIOUSLY, PRIOR CONVICTION FOR PRIOR KILLING IS A VERY SERIOUS AGGRAVATEOR. >> ADEGREE. >> THE CIRCUMSTANCES WERE SUCH THAT, YOU KNOW, IT WAS SELF-DEFENSE, AS A RESULT OF IT BEING SELF-DEFITNESS, THE PROSECUTOR REDUCED THE CHARGE AND RECEIPT SOMEBODY OFF WITH A VERY LIGHT SENTENCE BECAUSE THEY AGREED THAT THERE WERE RATING OR MITIGATING CIRCUMSTANCES TO THAT, THAT IS WHAT I AM REFERRING TO. HOW DO WE COMPARE THE EVIDENCE BROUGHT OUT AT THE ORIGINAL PENALTY PHASE ABOUT THE CIRCUMSTANCES OF THAT AGGRAVATEOR WITH THE EVIDENCE THAT WAS BROUGHT OUT AT THE POST-CONVICTION HEARING. WAS IT THE SAME? WAS IT DIFFERENT? >> YOUR HONOR, SUBSTANTIALLY THE SAME. IT IS A DISAGREE WITH YOU, THERE WAS EVIDENCE PRESENTED DURING THE POST-CONVICTION HEARING THAT WOULD HAVE MITIGATED THE ENTIRE MURDER. >> OKAY. >> THIS IS THE CLAIM OF YOUR OPPONENT HERE. >> YES, YOUR HONOR. THE POST-CONVICTION HEARING, THEY BROUGHT OUT SUCK,S OF THAT PRIOR CRIME, THAT WOULD HAVE LESSENED THE IMPACT OF THAT AGGRAVATEOR AT THE SENTENCING HEARING. SO DID THEY? >> NO. THEY DISAGREED WITH THAT, YOUR HONOR. THE DEFENSE PEG,S TESTIFIED THAT HE HAD A VERY NARROWLY CIRCUMSCRIBE AC US 1 DISORDER. DISLOSINGAL DISORDER. >> GOING TO THE MENTAL ASPECT OF IT. I AM GOING TO THE ACTUAL CIRCUMSTANCES, WHAT, WHAT HAPPENED IN THE CRIME IN CALIFORNIA? >> HE MURDERED AN INDIVIDUAL AFTER HAVING AN ALTERNATION IN A BAR OVER ALLEGEDLY AN UNDERAGED GIRL. HE WAS, HE HAD AN ALTERCATION. HE DREF AWAY. AS HE WAS DRIVING AWAY, HE SHOT AT THE TWO VICTIMS, NOT A SINGLE FACT THAT WAS PRODUCED DURING THE EVIDENTIARY HEARING CONTRADICTED ANY PART OF THE TESTIMONY THAT WAS PREVENT DURING THE ARE ORIGINAL PENALTY PHASE. WITH WAS HE CHARGED WITH IN CALIFORNIA? SECOND-'S DEGREE MURDER. HE WAS CONVICT. >> WHAT WAS HE SENTENCED TO FOR THAT ? I THINK TEN YEARS WAS WHAT THE STANDARD STANDARD SENTENCE WAS AND HE ONLY SERVED 3. A. THERE WAS ONLY TESTIMONY FROM A PROSECUTOR, THAT THIS IS A CASE OF IMPERFECT SELF-DEFENSE. MR. PEEDE THOUGHT HE WAS JUSTIFIED IN MURDERING INDIVIDUAL AN SHOOTING AT ANOTHER INDIVIDUAL OVER EVEN THE DOCTOR ADMITTED ON CROSS EXAM NAY, I APPEARED PEEDE MURDERED SOMEONE WHO WAS NOT THREATENING HIM AT ALL. I DISAGREE THAT THERE WAS EVIDENCE INTRODUCED DURING THE HEARING. >> SO -- >> YES. >> SO YOU ARE TELLINGS THAT YOU IF WE EXAMINE THE RECORD, WE WILL NOT FIND DRAMATIC DIFFERENCE BETWEEN THE WAY THE CIRCUMSTANCES OF THAT CRIME WERE SPRENED AT THE ORIGINAL SENTENCING HEARING AND WERE SPREND IN POST CONVICTION. >> THAT IS WHAT I AM SAYING, YOUR HONOR. >> THERE WAS NO TESTIMONY FROM A PROSECUTOR OR LAY WITNESS THAT SAID THIS WAS CASE OF SELF-DEFENSE. THERE WERE SOME TESTIMONY FROM MENTAL HEALTH EXPERTS HE HAD A PARANOID PERSONALITY SIMILAR TO WHAT DR. KIRKLAND FIREFIGHTERED TO DURING THE ORIGINAL PENALTY PHASE. AND REGARDING THE BRADY INFORMATION, YOUR HONOR, DEFENSE ATTORNEYS WERE AWARE OF DARLA'S DIARY, IN FACT, A CREDIBILITY FINDING FROM THE TRIAL COURT WHO ACCEPTED THE TESTIMONY OF A PROSECUTOR BELOW THAT SHE SHOWED AND DISCUSSED THE DIARY WITH THE DEFENSE COUNSEL. JUDGE BEENSON COULD NOT RECALL SPECIFICALLY HAVING READ OR SEEN IT, BUT THE JUDGE SAID IT IS NOT SURPRISING BECAUSE THERE WAS NOTHING REL VENT IN THAT DIARY MOVEMENT WHAT ABOUT ALTERNATIVE ARGUMENT THAT IF COUNSEL HAD IT, COUNSEL WAS NEGLIGENT IN NOT USING THE CONTENTS THEN TO DEVELOP THE CASE FURTHER. >> WELL, FIRST OF ALL, I WOULD STATE THAT THAT CLAIM WAS SPREPED BELOW. IT WAS A CLAIM OR COUNSEL EFFECTIVE. THERE WAS NEVER AN EXPLANATION FOR THE TRIAL COURT BELOW THAT WAS INEFFECTIVE ASSISTANCE OR EVEN ON APPEAL, I MEAN, IT IS A FASHION, BUT EVEN IF THAT WAS PROPERLY BEFORE THE COURT, THERE WAS NO REL RENT INFORMATION IN THAT DIARY THAT THE COUNSEL DIDN'T ALREADY MOW. THE COUNSEL KNEW THAT DARLA THOUGHT THE RECOGNIZING WITH PEEDE, HE KNEW THAT FROM TALKING TO DAR WILLING'S DAUGHTERS, HE ALREADY KNEW THE INFORMATION THAT WAS ALLEGEDLY REL VAN IN THE CASE. >> BUT GRINDER STAN CORRECTLY WITH A WHAT WAS IN THE DIARY ALLEGEDLY THAT IS IT DEMONSTRATES SHE DIDN'T REALLY HAVE ANY FEAR OF MR. PEEDE WHEREAS THE DAUGHTER TESTIFIES TO SOME FEAR OF HER PART OF HIM. >> YES, YOUR HONOR. >> A DIFFERENCE AS TO WHETHER -- >> WELL, YOUR HONOR, I WOULD ARGUE THAT WRITTEN FOUR MONTHS TWO DAYS PRIOR TO HER MEETING MR. PEEDE, BUT THE DIRERY, THE LAST ENTRY, I BELIEVE WAS FOUR MONTHS PRIOR TO HER PICKING UP MR. PEEDE AT THE AIRPORT. THE DAUGHTER SPECIFICALLY TESTIFIED THAT HER MOTHER DARLA WAS THAT DAY NERVOUS AN AFRAID WHEN SHE WENT TO MEET THEM AT THE AIRPORT. I MEAN, WHEN YOU ARE TALKING ABOUT REL LICENSE TO THE STATE OF MIND, I MEAN, THE TESTIFY'S TESTIMONY AT THE TIME OF TRIAL WAS FOR IMMEDIATE STATE OF MIND, NOT SOME DIARY WHERE FOUR MONS PRIOR, AGAIN, YOU KNOW, DARLA MOVED AWAY BECAUSE HE BEAT HER. HE WAS VIOLENT TO HER. HE WAS CLEARLY AN INDIVIDUAL THAT DARLA WAS FRIGHTENED OF SHE WAS AFRAID OF GOING TO PICK HIM UP. SHE TOLD HER DAUGHTER THAT. THE SECOND PART OF THE CALIFORNIA WITNESS SAME, THE TRIAL COURT FOUND SPECIFICALLY THAT THAT INFORMATION WAS ALREADYED AVAILABLE TO THE DEFENSE ATTORNEY, REMEMBER, MR. BRONSON TESTIFIED HE HAD SEEN A LARGE COLLECTION OR COLLECTION OF WITNESSES STATEMENT INTERESTS THE CALIFORNIA MURDER. >> WHERE? >> YOUR HONOR? >> SEEN THEM WHERE? >> HE HAD SEEN A NUMBER OF WITNESSES STATEMENTS. HE COULDN'T RECALL THE EXACT NAMES OF THE WITNESS THAT HE VIEWED BUT REMEMBER BACK IN THE A'S 80s? >> WELL, I GUESS, WHAT I AM ASKING IS WAS THIS A PART OF THIS IS INSPECTION OF THE RECORD THAT THAT THE STATE ATTORNEY'S OFFICE OR DID HE HAVE THE RECORDS IN HIS POSSESSION? >> HE HAD A WITNESS STATEMENT IN THE DEFENSE FILE, BUT HE RECALLED READING A NUMBER OF STATEMENTS. I CHRARS THAT BOTH ATTORNEYS -- IT IS VERY CLEAR THAT BOTH ATTORNEY, THE PROSECUTOR AN DID TESTIFY THAT THERE WAS AN OPEN-FILE POLICY THAT TIME. IN FACT, THEY WERE HOUSED ON THE SAME BUILDING. IN THE A'S 80s THERE INFORMAL. THEY COME OVER, THEY OPEN THE FIRE AND SAY HERE, LOOK AT IT. IF THERE IS ANYTHING YOU WANT, TAKE IT. JUDGE BEENSON RECALLED READING A NUMBER OF STATEMENTS ABOUT THE CALIFORNIA MURDER. IN ADDITION, THERE WAS NO SHOWING OF ANY MATERIALALITY IN THAT THE DIFFERENCE OF ETH ARE THE PENALTY PHASE OR THE GUILT PHASE WOULD HAVE BEEN DIFFERENT. OM ONE WITNESS OF THOSE THREE STATEMENTS ACTUALLY TESTIFIED DURING THE PENALTY PHASE AND I BELIEVE THAT WAS JOHN BELL AN HE WAS UNAVAILABLE TO TESTIFY AT THE TIME OF TRIAL. HE STATED THAT HE WAS A FRAYED OF PEEDE HE WAS LAYING LOW BECAUSE HE HAD HEARD OF RUMOR IN HIS SMALL TOWN THAT HE HAD AN AFFAIR WITH PEEDE'S FORMER WIFE. HE WAS LAYING LOW. HE WAS NEVER SHOWN TO BE AVAILABLE. >> AND HE TESTIFIED AT THE EVIDENTIARY HEARING SNOUFER >> HE DID. HE WAS THREATENED WITH DEAF ON THIS PROSEE SEEDING AT THIS TIME. HIM LAYING LOW WAS QUITES AREP REASONABLE. >>GAIN, THIS IS INDICATION WHERE COUNSEL DID NOT INVESTIGATE THE BACKGROUND. HE HAD AN INVESTIGATOR GO UP TO NORTH CAROLINA OBTAIN VERY FAVORABLE WITNESS STATEMENTS I ENCOURAGE TO YOU READ THE LETTER, THE 13 LETTERS SUBMITTED THEY SHOWED THAT PEEDE HAD A NORMAL CHILDHOOD FAMILY WHO LOVED HIM THAT HE PLEAD FOR MERSEY, WAS POLITE AND CONSIDER ATE. THAT WAS MUCH MORE FAVORABLE PENALTY PHASE PRESENTATION THAN THE ONE POST-CONVICTION COUNSEL WOULD OF FEVER BECAUSE IT SHOWS MR. PEE'S VIOLENT TENDENCY, VIOLENT ASIDE FROM HIS VERY CIRCUMSCRIBE DELUSIONAL BELIEF ABOUT HIS EX-WIFE, THE STATE SUBMITTED THAT EVEN IF WE WERE ACCEPT THAT MIXED BAG OF MITIGATION PRESENTED DURING THE POST- CONVICTION HEARING THAT THE OUTCOME OF THE PENALTY PHASE WOULD NOT CHANGE. >> NOTHING FUR HER. >> THANK YOU VERY MUCH. >> THANK YOU VERY MUCH? CONCLUDING REMARKS? >> THIS COURT AND THE STATE FOLLOWING THE KIRK LAP EVALUATION DESET OF WHEN HE RELIED ON THE SELF-REPORTING OF A WITNESS AN FOUND A STATUTORY, THE SAME STATUTORY MIT GAILING CIRCUMSTANCES, CIRCUMSTANCES OF UNDEREXTREME EMOTIONAL DISTRESS. THE COURT FOUND THIS ON THE GROUNDS THAT THERE WERE SEVERAL OTHER RECORDS AVAILABLE REGARDING BRAIN DIG AND BEING IN COMA AND OTHER MENTAL IPS THAT WERE NOT BROUGHT FOR. DR. KIRKLAND WAS PREEM ENT IN HIS FIELD; HOWEVER, ACCORDING TO HIS TESTIMONY AT THE TIME OF TRIAL, HE REVIEWED NODATIONAL MFS. IN FACT, HE STATED HE WAS ASKED ON CROSS-EXAMINATION ONCE AGAIN, I HAVE NOT SEEN ANY RECORDS, I DID NOT TALK TO ANY WITNESSES SO FAR AS I KNOW, THE QUESTION FROM THE STATE, DID YOU RECEIVE ANY INFORMATION ON THE EVIDENCE PRESENTED IN THE COURT AT THE HOW THE MURDER HE CURED. HE SAID,, NO ONLY, ONLY I, ONLY INFORMATION I HAD CAME FROM MR. PEEDE, THAT IS ON PAGE 954 OF THE RAILROADED ON APPEAL. DR. KICKLAND MAY HAVE BEEN PREENT, HOWEVER, HE DID AN EVALUATION REGARDING MR. PEEDE BECAUSE HE ONLY RELIED ON MR. PEEDE, THAT IS NOT UNACCORDANCE WITH WHAT THE COURT HAS FOUND OR WHAT THE UNITED STATES COURT HAS FOUND IS DOING A THOROUGH INVESTIGATION INTO MENTAL HEALTH ISSUES AND THE MITIGATION AT THE TIME OF TRIAL. >> WHAT DID HE MISS ACCORDING TO YOUR VIEW? WAS HIS ULTIMATE CONCLUSION AND HEROR? WHAT IS YOUR POSITION? >> UNHIS REPORT, THERE WERE TWO REPORTED HE MOTE. HE MENGED WAES SUFFERING AND THAT HE WAS PARANOID; HOWEVER, HOWEVER THOSE TWO ARE REPORTS WERE NEVER ADMITTED INTO EVIDENCE AT TRIAL. THE JUFER RY NEVER SAW THEM. THE JUDGE NEVER SAW THEM. IN FACT, THE JUDGE IN A SINGT MIRER RANDOM, GIVING THE DEFENSE THE BENEFIT OF THE DOUBT BECAUSE DR. KIRKLAND'S TESTIMONY WAS SO DISCRED DYED BY THE FAILURE TO REVIEW ANY COLLATERAL INFORMATION. NONE OF THE DELUSIONAL DISORDER WHICH WAS PREVENTED AT THE EVIDENTIARY HEARING EVER MADE IT BEFORE THE TRIAL COURT OR THE JURY. IN FACT, IT WAS NO EXPLANATION WHATSOEVER AS STATED BY DR. KIRKLAND, BECAUSE DID HE NOT KNOW ANY OF THE IN STANS OF THE OFFENSE, BUT WHAT HE WAS TESTIFYING TO. HE WAS NEVER GIVE THAN INFORMATION, NO EXPLANATION AS TO HOW THE MENTAL ILLNESS IMPACT ON HIS CONDUCT DURING THE MURDER. THAT SHOULD HAVE BEEN PREVENTED. >> WHAT ADDITIONAL MITIGATING CIRCUMSTANCES DO YOU PROPOSE WOULD HAVE BEEN FOUND IF THAT, IF THAT IF WE HAVE ADDITIONAL, WE HAVE THESE EXPERTS AS OPPOSED TO DR. KIRK? >> IT WOULD HAVE BEEN ADDITIONAL STATUTORY MITIGATING CIRCUMSTANCE OF INABILITY TO THE REQUIREMENT OF LAW. >> EVALUATE THAT WHEN WE HAVE OTHER EXPERTS WHO SAY THAT IS NOT APPLICABLE IN THE CASE? >> TWO EXPERTS, FIRST, THE POST CONVICTION COURT FOUND THE FACT HE WAS SUFFERING FROM DELUSIONALAL DISORDER, THERE IS NO RECORD IN THE PENALTY PHASE OF THAT EVER BEING MENTIONED NO EXPLANATION OF THAT. IN ADDITION, HAD THESE MITIGATING WITNESSES BEEN CALLED TO TESTIFY THEY WOULD HAVE GIVEN NON-STATUTORY MITIGATING EVIDENCE IN REGARD TO THE ABUSIVE BACKGROUND REGARDING HIS PRIOR SUICIDE ATTEMPTS THE FACT HE HAD BEEN ON MEDICATION, YOU KNOW? AND ANTIPSYCHOTIC MEDICATION IMMEDIATELY BEFORE TRIAL AND IT WAS TAKEN OFF OF IT AT TRIAL. DR. KIRKLAND COULD HAVE EXPLAINED THE BIZARRE BEHAVIOR AT THE TIME OF TRIAL BECAUSE OF THE FACT HE HAD NOT BEEN ON THE MIDCATION. THE TRIAL COURT DIDN'T KNOW ABOUT THE FACT HE HAD BEEN TAKEN OFF THIS MEDICATION. THE FACT OF HIS MOTHER'S SUICIDE OR HIS MENTAL DETARE AIR, HIS BELIEF OF INADEQUACY. NONE OF THIS, THIS DIAGNOSISS NEVER PREVENTED OR HEARD BY EITHER THE TRIAL COURT DURING THE SENTENCING OR THE JURY IN MAKING RECOMMENDATION. IN ADDITION TO THIS, UM, THE ONLY PERSON THAT TRAVELED TO NORTH CAROLINA WAS JUDGE BEENSON AND HE ONLY TALKED TO STATE WITNESSES. HE DID NOT TALK TO SINGLE MEMBER, MR. PEEDE'S FAMILY WHILE HE WAS THERE. NO ONE TRAVELED TO CALIFORNIA. THERE WERE SEVERAL LETTERS WHERE ITINGEN, THOSE ARE STATE EXHIBIT 6 IN THE EVIDENTIARY HEARING PACKET. >> HOW DID WE GET THE LETTERS? THESE ARE FAMILY AND FRIENDS THAT SUBMITTED LETTERS THAT WERE, IN FACT, INTRODUCED INTO EVIDENCE, SO HOW WERE THOSE OBTAINED? >> TRIAL COUNSEL AFTER MR. PEEDE WAS CONVICTED CONTACTED BROWNE AND ASKED HIM IF HE COULD COME DOWN; HOWEVER, ON THE SHORT NOTICE, HE COULD NOT. THIS IS 1983, HE COULD NOT COME DOWN. HE ASKED HIM IF HE COULD GATHER UP LETTERS TO COME AND SEND THEM. HOWEVER, THERE WAS NO EF EXPLANATION AS TO WHAT WAS MITIGATION. TRIAL COUNSEL NEVER TOLD HIM. THIS IS THE INFORMATION I WANT. I WANT TO KNOW ABOUT HIS BACK GROWN, HIS CHILDHOOD, ANY PSYCHOLOGICAL PROBLEM, ANY OF THIS INFORMATION, HE DIDN'T SAY, YOU KNOW, I HAVE A PSYCHOLOGIST I WOULD LIKE TO TALK. IN THE LETTERS DID NOT ADDRESS THE BACKGROUND OR FAMILY AT ALL. >> NONE OF THIS. OTHER STATEMENTS? >> WHAT DO THE STATEMENTS ADDRESSS? THY WERE SAYING, HE IS A NICE GUY. PLEASE DON'T KILL HIM. I HAVE KNOWN HIM ALL MY LIFE. NO DISCUSSION OF WHO HE WAS AT A PERSON. SEVERAL WITNESSES TESTIFIED TO THE FACT THAT HE HAD TRIED TO COMMIT SUICIDE. HE HAD BEEN ABUSED. THEY WERE AFRAID OF HIM BECAUSE OF HIS DELUSIONAL DISORDER. THERE WERE STATEMENTS FROM DEL MAR BROWNE WHO TRIAL COUNSEL CONTACTED AND SAID I DON'T WANT TO TESTIFY; HOWEVER, HE IS -- HIS MOTHER'S SUICIDE SENT HIM OVER THE EDGE. WHATEVER HAPPENED HIM IN CALIFORNIA DETERIORATED HIM FURTHER. EVEN IF MR. BROWNE DID NOT WANT COME FORTH. HE COULD HAVE HAD A DEPOSITION TAKEN FROM HIM. HE COULD HAVE AEFD TAKEN FROM HIM. HE COULD HAVE HIM SPEAK AND HAVE HIM EXPLAIN INFORMATION AN NONE OF THAT WAS DONE. >> THANK YOU VERY MUCH. YOU HAVE USED UP YOUR TIME. WE THANK YOU BOTH FOR PRESENTATIONS THIS MORNING. WE SHALL STAND IN RECESS UNTIL 9:00 TOMORROW MORNING. >> PLEASE STAND.,