GOOD MORNING , CHIEF JUSTICE PARIENTE AND MEMBERSOF THE COURT. I AM WILL IAM HENNIS TO AR GUE THE REAVES CA SE. OBVIOUSLY WE HAVE BEEN HERE BEFORE ON THIS CASE. I THINK TO DAY , THERE REALLY ARE TWO ISSUES THAT I THINK ARE OUT THERE. ONE HAS TO DO WITH WHE THEROR NOT T RIAL COUN SEL , MR . KIRCHNER , M ADE A DEC ISION ABOUT PRESENTING A VOLUNTARY INTOXICATION DEFENSE , AND THE RELATED QUESTION IS WHETHER OR NOT THAT WAS ASTRATEGIC DECISION, SUCH THAT HIS WORK ON THAT ISSUE WAS NOT INEFFECTIVE. THE SECOND ISSUE HAS TO DO WITH WHETHER OR NOT THE COURT BE L O AF -- BELOW ABUSED ITS DISCRETION WHEN IT FOUND THAT PRES ENTING EUGENE HICKMAN 'S TESTIMONYAT THE EVIDENTIARY HE ARING WAS NOT REQUIRED , AND THE COURT DENIED A MOTION FOR HABEAS COR PUS THAT MR . REAVES PUT FORWARD TO ATTEMPT TO TR Y TO GET MR . HICKMAN'S TESTIMONY AT THAT HEARING.

JUSTICE: ON THE VOLUNTARY INTOXICATION DEFENSE , WHAT WAS PRESENTED AT THE EVIDENTIARY HEARING THAT WOULD PROVE INTOXICATION , OTHER THAN THE DEFENDANT'S SELF REPORT SOMETHING.

OBVIOUSLY THAT IS REL ATEDIN SOME W A YS , JUSTICE BELL , TO THE QUESTION OF OUR IN ABILITY TO PRESEN T MR . HINTON'S TESTIMONY , AND I WOULD POINT THAT OUT UP FRONT THAT WHAT WE WANTED TO DO OBVIOUSLY WAS TO PRESENT THE TESTIMONY OF THE ONLY P ERSON , REALLY , TO T ALK TO AND SEE MR . REAVES IN THE TIME IMMEDIATELY A FTER THE C RIME , SINCE THERE WERE N O CLOSE-UP WITNESSES AT THE TIME OF THE OF FENSE , AND MR . REAVES RAN AC ROSS VERO BEACH TO MR . HI NTON 'S HOME, AND THAT IS WHERE IN FACT , HE SAW AND TALKED TO SOMEBODY WHO , B ASED ON MR. HINTON'S AFFIDAVIT , ACTUALLY WAS GOING TO BE WIL LING TO TESTIFY HE WAS INTOXICATED .

JUSTICE: SO YOU AGREEOTHER THAN THE DEFEND ANT MR . HINTON, THAT WOULD BE THE ONLY EVIDENT EVIDENCE TO PROVE -- THE ONLY EVIDENCE TO PROVE THAT INTO XICATION .

I WOULDN'T SAY ONLY EVIDENCE. WE DID PRESENT TR IAL TESTIMONY WHICH IN THE TRIAL COURT'S ORDER DIDN'T REACHTHE LEVEL TO PROVE HIS INTOXICATION AT THE TIME OFTHE OFFENSE. AT LEAST THAT THE IS THE WAYI READ IT.

JUSTICE: BUT THOSE EXPERTS WERE RELYING ON THE DEFENDANT'S SELF REPORTING.

THAT AND OF COURSE THE HINTON AFFIDAVIT AND ALSO TO SOME EX TENT THE THREE PRIOR STATEMENTS OF MR. HINTON THAT WERE N E VER ALLOWED TO BE USED B ACK AT T RIAL , ALTHOUGH DEFENSE COUNSEL KIRCHNER DID TRY TO USE THEM AS IMPEACHMENT OF THE TESTIMONY OF HINTON F ROM THE FIRST TRIAL.IT WAS READ INTO THE RECORD HE WAS NOT ALLOWED TO USE THOSE STATEMENTS FOR IMPEACHMENT. CERTAINLY OUR POSITION IS THAT THERE IS INFORMATION IN THOSE STATEMENTS THAT SUPPORT AN INTOXICATION DEFENSE .

JUSTICE: T HAT IS WHAT I WOULD LIKE, PRIOR TO THIS EVIDENTIARY HEARING AS FAR AS THE DEFENSE COUNSEL I N THIS CASE IN HIS PERFORMANCE , WHAT EVIDENCE DID HE HAVE FROM MR . HINTON IN THE STATEMENTS HINTON HAD GIVEN, EITHER TO LAW ENFORCEMENT O R IN DEPOSITION, THAT WOULD HAVE IN DICATED THAT YOUR CLIENT WAS INTOXICATED?

THERE IS CERTAINLY A N EQUIVOCAL STATEMENT FROM HINTON HAVING TO DO WITH THE USE OF COCAINE , IN WHI CH THE E ND OF THE SENTENCE ISN'T COMPLETED IN HIS STATEMENTTO THE POLICE , THAT I THINK AN OBJECTIVE PE RSON COULDREAD AS SAY ING, AS MEANINGTHAT IN FACT , REAVES HAD BEEN USING COCAINE IMMEDIATELY IN THE HO URS PRIOR TO THE OFFENSE, WHICH WAS THE LAST TIME THAT HINTON HAD SEEN HIM , AND WHEN HE TESTIFIED IN THOSE STATEMENTS, IN HIS STATEMENTS TO THE PO LICE , THERE IS A REFERENCE TO THAT . THERE IS ALSO SOME TESTIMONY ABOUT USING MARIJUANA THAT I THINK IS ACTUALLY TIED TO HINTON'S CONTACT WITH HIM I N HINTON'S HOME AFTER THE OFFENSE, SO THAT CLEARLY WOULDN'T HAVE TO DO WITH INTOX ICATION AT THE TIME OF OVEN -- AT THE TIME OF THE OFFENSE , BUT, AGAIN , I THINK IT SDP DOES GO TO THE IMPORTANCE OF HAVING THAT INFORMATION PRIOR , FOR EXAMPLE THE INFORMATION THAT DR . WE ATZ TESTIFIED AT THE EVIDENTIARY HEARING THAT HE WAS PREPARED , IF KIFERN MERE IN HAD -- IF KIRCHNER HADASKED HIM BACK AT THE TIME OF THE PRETRIAL , THAT IT WAS HIS OP INION AND HE WAS PREPARED TO TESTIFY THAT HE WAS INTOXICATED AND UNABLE TO FORM INTENT AT THE TIME OF THE OFFENSE. SO THAT IS CLEAR THAT IT WAS PRESENTED.

JUSTICE: WHAT DID DR . WYETHS ACTUALLY SAY AT THE TIME OF THIS HEARING?HE IS NOW SAYING THAT HE WOULD HAVE SA ID HE WAS INTOXICATED , BUT AS I READ THIS RECORD BACK AT THE ACTUAL PEN ALTY P HASE TIME , DR . WE ITZ ACTUALLY SAID THAT HE COULD NOT TELL IN FACT THAT THE DEFENDANT WAS INTOXICATED.I SN'T THAT A PART OF THIS RECORD?

THAT IS NOT MY RECOLLECTION OF THE RE CORD , JUSTICE QUIN CE. IN FACT HIS TESTIMONY WASSIMPLY THAT HE WAS NEVER ASKED AS TO WHETHER OR NOTHE BELI EVED THAT MR . REAVES WAS INTOXICATED AT THE TIME OF THE OFFENSE, AND I THINK THAT FITS IN WITH THE ISSUETHAT I WAS TALKING ABOUT BEFORE, THE THIN GS THAT MR . KIRCHNER DIDN'T DO THAT HE SHOULD HAVE DONE, IF IN FACT HE HAD SOME SORT O F , SOME SORT OF INVESTIGATION OF INTOXICATION THAT HE DID BACK AT THE TIME OF TRIA L. NOW , HE WAS PRETTY EQUIVOCAL IN HIS TESTIMON Y. I MEAN , HE SAID MAYBE IT WAS A STEA LT H DEFENSE. MAYBE I DIDN'T REALLY RELY ON IT AS M Y PRI MARY DEFENSE.

AS I REMEMBER HIS TESTIMONY AT THE EVIDEN TIARY HEARING, WAS THAT HE AND DR . WEITZ ACTUALLY DISCUSSED THIS CASE, AND THEY DISCUSSED IT IN TERMS OF THE VIETNAM SYND ROME AND VOLUNTARY INTOXICATION , AND DID DR . WEI TZ DISPUTE THAT THEY IN FACT HAD SU CH A CONVERSATION?

I BELIEVE SO , JUSTICEQUINCE. MY REC LICKS -- RECOLLECTION IS THAT THERE WASN'T REALLY TESTIMONY.

JUSTICE: WHAT DID DR . WEITZ ACTUALLY SAY? DID HE SAY I NEVER HAD A CONVERSATION WITH DEFENSECOUNSEL ABOUT THIS?

I DO NOT RECALL.I DO REMEMBER ON PAGE 1 10 ON THE DA Y HE TESTIFIED THAT HE DEMONSTRABLY SAYS THAT HE BELIEVES IN RESPONSE TO A QUESTION THAT, HE BELIEVES MR. REAVES WAS INTOXICATED AND HE BELIEVED THAT AT THETIME. THERE HAD JUST NEVER BEEN ANY DI RECT REQU ESTS ON THE PART O F TRIAL COUNSEL TO APPROACH THAT ISSUE , AND THAT ACTUALLY FITS IN WITH THE RECORD ON THE REST OF WHAT HE DIDN'T DO. I MEAN, HE DID NOT , FROM OURPOINT OF VIEW , MEET THE BASIC REQUIREMENTS OF THE ADA GUIDELINES AS FAR AS THEINTOXICATION DEFENSE. HE ADMITTED HE NEVER TALKED WITH MR . HINTON AT ALL ABOUTMR. HINTON'S VIEW OF MR. REAVES 'S INTOXICATION AT THE TIME OF THE OFFENSE , HISDRUG USE WITH MR . REAVES OVER SOME YEARS BEFORE THAT, OR ANYTHING TO DO WITH DR UGS.

JUSTICE: WELL , WHAT HADMR. HINTON SAID IN HISSTATEMENT AND ACTUALLY IN HIS TESTIMONY , DURING THE INITIAL TRIAL , ABOUT MR . REAVES 'S CONDITION AT THE TIME HE CAME TO HIS HOUSE?

I THINK IT IS PRETTY CLEAR THAT AT THE ORIGINAL TRIAL, WHICH OF COURSE, WAS THE TRIAL BEFORE KIRCHNER GOT INVOLVED, THAT HE HAD TESTIFIED THAT HE SEEMED APPARENTLY, WITHIN NORMAL LIMITS. HE DIDN'T GIVE ANY INFORMATION AT THAT TIME D URING HIS TESTIMONY , THAT ANYTHING OUT OF THE ORD INARY WAS GOING ON WITH MR . REAVES'S CONDITION, BUTRECALL, TOO, THAT MR . KIRCHNER, ALSO , DIDN'T TALK TO THE PERSON WHO POSSIBLY WAS THE LAST PERSON TO SEE MR . REAVES BEFORE ALL THIS HAPPENED, WHICH WAS MR . REAVES'S GIRLFRIEND , AND I N WHOSE HOME HE HAD BEENMENTSBEFORE THE SHOOTING AND IN WHICH A SUBSTANTIAL AMOUNT OF DRUGS AND DRUG PARAPHERNALIA WAS CONFISCATED, AND IN HERSTATEMENT TO THE POLICE , SHE COMPLETELY DENIED KNOWINGANYTHING ABOUT ANY DRUGS OR ANYTHING DRUG PARAPHERNALIA BEING AT HER HOME. HE AD MITED IN THE EVIDENTIARY HEARIN G HE NEVER EVEN TALKED TO THAT WITNESS. HE DIDN'T REMEMBER WHETHER HE HAD LISTENED TO THE TAPED INTERVIEW OF HER.

JUSTICE: NOW THAT YOU HAVE HAD THE OPPORTUN ITY TO DO THAT, WHAT DID SHE TESTIFY TO?AT THE EVIDENTIARY HEARING, WHAT DID THE GIRLFRIEND TESTIFY TO?

SHE DIDN'T TESTIFY AT THE EVIDENTIARY HEARING , JUSTICEBELL. WHAT HAPPENED AT THE EVIDENTIARY HEARING THE DEFENSE AND STATE AGR EED AND STIPULATED INTO THE RECORD HER TAPED INTERVIEW WITH THE POLICE WHICH HAD NEVER BEEN TRANSCRIBED AND WASN'T FO UND ANYWHERE ELSE AND BASICALLY WHAT SHE S WASD SHE WAS NOT AT THE HOUSE FOR HOURS AF TER MR. R EAVES WAS THERE , THAT SHE DIDN'T KNOW ANYTHING ABOUT ANY DRUGS OR DRUG PARAPHERNALIA BEING THEREAND SHE ABSOLUTELY DENIED THAT SHE HAD ANY DRUGS IN HER OWN POSSESSION .

CHIEF JUSTICE: JUSTICE CANTERO HAS QUESTION.

I APOLOGIZE.

DID DEFENSE COUNSEL TESTIFY AT ALL ABOUT HIS STRATEGIC PROBLEMS INPRESENTING A VOLUNTARY INTOXICATION DEFENSE, INOTHER WORDS WHETHER HE THOUGHT SUCH A DEFENSE WAS VIABLE, WHETHE R IT WOULDWORK BEFORE THIS JURY , WHETHER HE HAD TRIED THAT DEFENSE BEFORE, THAT KI ND OF THING?

HE CERTAINLY IN DICATE ADD FAMILIARITY WITH THE DEFENSE.HE INDICATED THAT WHAT HE WAS ATTEMPTING TO DO WAS T O USE THIS AS SORT OF A STEALTH DEFENSE, A BACKUP DEFENSE FOR L A CK OF A BETTER WORD . NOW , MY VIEW IS THAT , THAT I F THAT WAS IN FACT THE CASE, THERE WERE C E RTAIN MINIMALTHING THAT IS HE NE EDED TO DO AS PART OF THE INVESTIGATIVE PROCESS IN ORDER TO BE ABLE TO LATER TESTIFY THAT HE COULD GET TO THE POINT WHE RE HE COULDMAKE A STRATEGIC DECISION, AND WHAT I HAVE TRIED TO DO IN MY BRIE FING IS OUTLINETHE REASONS WHY THAT WAS SIMPLY IMPOSSIBLE.HE COULD NOT HAVE MADE A STRATEGIC DEC ISION , IN ASITUATION WHERE HE ADMITTED HE DO ESN'T RECALL EVER TALKING TO HIS CLIENT ABOUTWHETHER OR NOT TO PRESENT A VOLUNTARY INTOXICATION DEFENSE.

JUSTICE: DID THE DEFENDANT TESTIFY AT THE EVIDENTIARY HEARING THAT HE TOLD THE ATTORNEY THAT HE HAD TA KEN COCAINE ON THAT DAY OR CLOSE TO THE TIME OF THE CRIME?

SU RE. ABSOLUTELY. IN FACT THE SO-CALLED CONFESSION THAT WAS TAKEN AFTER MR. REAVES WAS TAKEN INTO CUSTODY IN GEORGIA TWO DAYS AFTER THE OFFENSE , IS REPLETE WITH INF ORMATION ABOUT HIS INTOXICATION AT THE TIME OF THE OFFENSE. MY RECOLLECTION IS HE TALKS ABOUT IT 13 TIMES IN THE CONFESSION, SO HE WAS CERTAINLY ON NOTICE THATTHERE WAS A PROBLEM. THERE IS NO QUESTION ABOUT THAT .

I KNOW WE HAVE HAD CASESHERE WHERE THE ATTO RNEY SAID I KNOW ABOUT THE VOLUNTARY D POX INTOX INDICATION.I KNEW ABOUT THE -- INTOXICATION. I KNEW ABOUT THE DRUGS BUT IN THIS PARTICULAR COUNTY IFOUND THAT D POUND THAT VOLUNTARY -- FOUND THAT VOLUNTARY INTOXICATION JUST DOESN'T WORK . IS THERE REFERENCE TO THAT KIND OF DEFENSE?

I THINK SO BUT AT THE TIME YOU HAVE TO TAKE THAT WITH AGRARIAN OF SA LT THAT OTHER THAN THE CLIENT'S CONFESSION, IT SELF , THERE IS NO EVIDENCE THAT HE DID ANYTHING OBJECTIVELY TO PREPARE AN INTOXICATION DEFENSE. WHEN HE DIDN'T TALK TO HIS OWN EXAPPRECIATE THAT HE HAD -- EX PERT THAT HE HAD RETAINED SPECIFICALLY BECAUSE HE WA NTED TO CHALLENGE AT THE GUILT P HASE , BASED ON P TSD WHICH EVENTUALLY BE CAME A VIETNAM SYNDROME OFFENSE , BEC AUSE AS DR . WEITZ TESTIFIED AT THE EVIDENTIARY HEARING, HE DIDN'T FEEL AT THAT TIME THAT HE WAS DIAGNOSE POST-TRAUMATIC STRESS DISORDER AND THEREFORE ONCE THE JUDGE REFUSED TO LET IN THE EVIDENCE BASED O N A DIMINISHED CAPACITY AT THE GUILT PHASE , MR . KIRCHNER AND DR. WEITZ ESSENTIALLYF ELT THAT THEIR DEFENSE WAS OVER. THEY HAD B LOWN IT AT THIS POINT.

JUSTICE: I JUST W ANT TO DETERMINE WHAT THIS LAWYER KNEW AT THE TIME THAT YOU ASSERT THERE ARE SOME DEFAULTS IN PERFORMANCE .

CERTAINLY.

JUSTICE: DID HE KNOW THE LENGTH OF TIME BETWEEN THIS EVENT AND THE TIME THAT MR . REAVES ENCOUNTERED MR . HINTON, WHO APPARENTLY WASTHE ONLY EYEBALL WITNESSWITH REGA RD TO THIS? DID HE K NOW THAT TIME PERIOD?

YES.HE DID KNOW THAT.

AND IT WAS MY UNDERSTANDING THAT MR. HINTON HAD PREVIOUSLY , I MEAN, NOT ONLY HAD DISAVOWED INTOXICATION BUT AL MOST WENT TO THE E DGE OF, WELL , HE S OLD DRUGS BUT HE IS NOT A USER . WE DIDN'T USE DRUGSTOGETHER. THAT HE SO LD IT AND THEN WON'T TO SAY AND MAKE SURE I UNDERSTAND, WENT ON TO SAYWHEN THIS LAWYER CAME IN, THAT MR . HINTON WAS , THERE WAS NOTHING TO INDICATE INTOXICATION. IS THAT WHERE HE CAME ON THE S CENE ?

THERE WAS CERTAINLY NEVER ANY CONVERSATION BASED ON KIRCHNER'S TESTIMONY BET WEEN HIM AND HINTON HAVING ANYTHING TO DO WITH DRUGS. HE S IMPLY SAID HE NEVERTALKED TO HINTON ABOUT THAT .

JUSTICE: THE TESTIMONY. I ASSUME HE HAD ACCESS TO THE FILE BECAUSE THERE HADALREADY BEEN A TRIAL.

SURE. HE HAD CONTACT WITH HINTON SEVERAL TIMES BEFORE THE SECOND TRIAL TO OK PLACE .

JUSTICE: THAT , IS MY RECITATION GE NERALLY COR RECT OF THE STATUS OF MR . HINTON'S TESTIMONY AT THE TIME?

I THINK IT IS GEN ERALLY CORRECT, ALTHOUGH THERE IS SOME SUBSTANTIAL COMMENT ABOUT HIM ACTUALLY BEING INVOLVED IN SALE AND PREPARATION OF DRUGS WITH MR . REAVES OVER A SIGNIFICANT PERIOD OF TIME .

JUSTICE: NOT USE BUT JUST S ALE.

SOME USE. I WOULD SAY MINIMAL USE .

SO IF HE C OMES IN AT THAT STAGE AND THAT IS WHAT THE SUPPOSED ONLY WITNESS SAYS , THEN WE MUST, THEN , F IND INEFFECTIVE ASSISTANCE , BECAUSE HE DID NOT , HE WAS UNABLE TO PRO FFER OR DID NOT GO TO MR . HINTON TO GET HIM TO CHANGE HIS STORY?

NO. I DON'T THINK THAT IS - -

JUSTICE: AR EN'T WE THERENOW THAT HINTON HAS CHANGED HIS STORY?

I THINK SO.

JUSTICE: I AM TRYING TO UNDERSTAND WHERE THIS LAWYER WAS DEFICI ENT IN PERFORMANCE IF THAT IS WHAT HE WAS FACED WITH AND THIS IS THE PROBLEM A REA THAT WE ARE FIGHTING ABOUT.

I DON'T THINK IT IS THAT STATEMENT AL ONE IS THE POINT I WANT TO MAKE. THAT IS A ISSUE OBVIOUSLY, AS TO EXACTLY WHAT WAS HE RESPONSIBLE FOR DO ING INTHAT CIRCUM STANCE. MY ANSWER IS HE NEEDED TO AT L EAST HAVE TALKED TO HINTON IN THE CONTACT THAT HE WITH HIM AND THERE WERE AT LE AST A COUPLE OF CONTACTS, ABOUTTHE WHOLE AREA OF DRUGS ANDWHETHER OR NOT INTOXICATION WAS AN ISSUE , IF I N FACT THAT WAS EVEN HIS STEALTH DEFENSE.

JUSTICE: WHAT WAS NUMBER TWO?

NUMBER TWO WAS HE NEEDED TO TALK T O JACQUE GREEN , THE GIRLFRIEND, TO FIND OUT IF IN FACT THE DRUGS WERE THERE. IF IT WAS TRUE AND MR . REAVES WAS THERE , WHY NOTGET THE REMAINS THAT WERE THERE TESTED TO BOLSTER THE INTOXICATION DEFENSE BEFORE THE JURY? N UMBER THREE , TRY AND PROVIDE HINTON'S PR IO R STATEMENTS TO YOUR EXPERT , WHO YOU WANT TO TESTIFY AT THE GUILT PHASE , AND ASK THE EXPERT WHETHER OR NOT HE BELIEVES THAT HE WAS INTOXICATED AT THE TIME OF THE OFFENSE , AND PROVIDE NOT ONLY THOSE STATEMENTS FROM HINTON BUT ANY OF THE RESULTS FROM THE FORENSIC STESING OF -- TESTING OF THE DRUGS THAT WERE TAKEN FROM THE CRIME SCENE AND JACQUE GREEN.

JUSTICE: LE T'S ASS UME THAT THOSE WERE DRUGS , DOES THAT GO TO VOLUNTARY INTOXICATION AT THE TIME OFTHE OFFENSE?

I THINK OBVIOUSLY THE ENTIRE PICTURE OF SOMEBODY SUBSTANCE ABUSE HIS TORY IF YOU ARE IN FRO NT OF A JURY , IS GO ING TO SU PPORT AN EVENTUAL AND'S BY HINTON IN WHICH HE SAYS HE WAS STRUNG-OUT OF HIS MIND ATTHE TIME HE CAME TO MY DO ORAN HOU R OR SO AFTER THE OFFENSE , AND HE TOLD ME HE HAD USED ALL OF HIS DRUGS. WHATEVER HINTON HAS TO SAY. I THINK YOU HAVE TO LOOK ATTHAT PACKAGE OF MATERIAL THAT COULD BE PRESEN TED TO THE JURY AS PART OF A VOLUNTARY INTOXICATION DEFENSE, IN ORDER TO MAKE THAT DETERMINATION. CHIEF I WANT TO REMIND YOU ARE SUBSTANTIALLY INTO YOUR REBUTTAL.

I THINK I WILL SIT DOWN AT THAT POINT, JUSTICE PARIENTE. THA NK YOU .

MAY IT PLEASE THE COURT. DEBORAH RESCIGNO ON BEHALF OF THE ATTO RNEY GENE RALS OFFICE. DEFENSE COUNSEL CA NNOT B E F OUND INEFFECTIVE IN THIS C ASE FOR NOT PRESENTING A VOLUNTARY INTOXICATION DEFENSE BECAUSE THE FACTS OF THIS CASE F LY IN THE FACE O F A VOLUNTARY INTOXICATION DEFENSE. THE DEFENDANT G AVE A 43-PAGE DETAILED CONFESSION OF THECRIME HE RE, WHERE HE OUTLINED EXACTLY WHAT HAPPENED FROM THE TIME HELEFT HIS GIRLFRIEND 'S HOUSE. I WANT TO POINT OUT TO THE COURT THAT JACQUE GREEN LEFT HER HOUSE AT 7:00 P.M . . AND THAT THE MURDER OF THE DEPUTY DID NOT OCCUR U NTIL 3:00 P. M., SO SHE WAS NOT IN THE HOUSE DURING ANY OF THE RELEVANT TIME PERIOD.

JUSTICE: WHAT TIME WAS THAT AGAIN?

SHE LEFT THE HOUSE AT 7:00 P.M. .

JUSTICE: AND THE MU RDER OCCURRED AT?

SHOR TLY AFTER 3:00 A .M. .

JUSTICE: AM.

HE HAD BEEN WATCHING FOOTBALL AT HER HOUSE AND F ELL ASLE EP AND WHEN HE WOKE U P, H E WANTED M ORE DRUGS. HE HAD RUN OUT. HE WA ITED FOR HIS CA R TO GET HIS DRUGS STASHED AT HIS MOTHER'S HOUSE BUT BECAUSE JACQUE GR EEN DIDN'T RE TURN , HE GOT IMPATIENT AND DECIDED TO WA LK UP TO THE ZI PY MA RT, WHICH WAS FOUR TENTHS OF A MILE THAT HE W ALKED UP TO. AT THE Z IPY MART HE CA LLED THE CAB COMPANY THREE TIMES AND GOT IMPATIENT WHEN THEYDID NOT COME AND BEFORE THAT HE BORR OWED A QU ARTER IN ORDER TO MA KE THE PHONE CALL , AND WHEN HE BECAME IMP ATIENT HE DI ALED 91 1 BUT HE HUNG UP BEFORE HE SPOKE TO ANYONE , TO GET A CAB. BECAUSE 911 HAD AN AD DRESS COME UP ON THE S C REEN, THEY DISMATCHED D E PUTY -- THEY DISPATCHED DEPUTY R RACZKOSKI . HE HAD INFORMATION ON MR . --

CHIEF JUSTICE: WHEN WAS THAT?

BET WEEN 3:00 A. M. AND 3:02.

CHIEF JUSTICE: ACCORDINGTO THE DEFEND ANT'S STATEMENTWHEN WAS THE LA ST TIME THAT HE HAD USED DRUGS?

HE TOLD DR . WHITE HE -- DR. WEIT Z THAT HE HAD USED DRUGS 30 MINUTES BEFORE GOING TO THE ZI PPY MART , AND HE ALSO FELL ASLEEP AND HE DIDN'T EXPLAIN HOW LONG HE WAS ASLEEP V ERSUS THE DRUGS BUT THAT IS WHAT HE S AID. 30 MINUTES BEFORE. THE DEPUTY CALLS INTO 911 AND HAS WA RRANT CHECK DONE ON MR. REAV ES, WHICH COMES BACK CLEAN. HE THEN ASKED HIM WHY HE WAS THERE , AND DETERMINES THATHE WAS THERE LOOKING FOR A CAB. SO HE CALLS BACK TO 911 AND HE ASKED THEM TO CALL A CAB FOR THIS GENTLEMAN. THAT IS THE WORD S THAT HE USED O N 911, AND THEN HE IS WAITING THERE WITH MR . REAVES. SO THE ENCOUNTER --

JUSTICE: THE INDICATION OF THE DISCUSSION BETWEEN THE OFFICER AND 911 , THAT HE GIVES THAT THE DEFENDANT WAS OBVIOUSLY INTOXICATED , HIGH , OR?

NO. THAT IS ANOTHER POINT, YOUR HONOR. THERE IS ABSOLUTELY, DU RING THIS ENCOUNTER BETWEEN REAVES AND DEPP ANY RACZKOSKI, THERE IS NOT ANYINDICATION TO THE DEPUTY THAT THERE IS ANY THING WRONGWITH MR . REAVES. HE RESPO NDS TO ALL OF HI S QUESTIONS. HE DOESN'T APPE AR TO BE INTOXICATED THERE. IS NO IS U P OR AND HE DOESN'T -- THERE IS NO ST UPER AND THERE IS N O INDICATION THAT HE HAD ANYT HING W R ONG. WHEN THE GUN FELL OUT, THE DEPP IF I -- THE DEPUTY PUT HIS FOOT ON THE GUN. MR. REAVES PICKED THE GUN UP AND PUT IT BY HIS THROAT AND HAD IT IN THE DEPUTY 'S FACE, AND AT THAT POINT THE DEPUTY BACKED AWAY AND PLEADED NOT TO SHOOT HIM AND AS HE GOT PASS THE HIS CAR DOOR , HE T RIED TO GET -- PAST HIS CAR DOOR, HE TRIED TO GET HIS OWN GUN OUT AND WHEN HE T URNED TO RUN , HE SHOOTS HIM.MR. REAVES , TWO DAYS LATER , WAS ABLE TO GI VE A 43-PAGE STATEMENT WHERE HE DETAILED EVERY CONVERSATION THAT HE HAD WITH THE DEPUTY. HE EVEN WAS ABLE TO N AME THE CODE THAT THE DEPUTY WAS U SING WITH 911 TO GET AC ROSS HIS INFORMATION.

BUT DIDN'T THE M ENTAL HEALTH EXP ERTS THAT WERE PRESENTED AT THE EVIDENTIARY HEARING , TESTIFY ESSENTIALLY THAT DE SPITE THE FACT THAT HE COULD GIVE A DETA ILED STATEMENT DOES NOT REALL Y NEGATE THE FACT THAT HE COULD HAVE BEEN INTOXICATED AT THE TIME O F THIS OFFENSE?

RI GHT , BUT ALL OF THOSE EXPERT'S TESTIMONY WITH THE EXCEPTION OF DR . WEITZ , NONE OF THEIR TESTIMONY CAN BE CONSIDERED BY THIS COURT IN DECIDING WHETHE R MR . KIRCHNER WAS INEFFECTIVE I N 1992, B ECAUSE ALL OF THEIR TESTIMONY SAID THAT HE COULDN'T FORM SPECIFIC INTENT BASED ON THE COMBINED EFFECT OF THE ALCOHOL ANDDRUGS AND HIS ME NTAL DEFECT , AND THAT TESTIMONY WAS NOT ALLOWED IN 1992. THAT WAS NOT ALLOWED IN UNTIL B IAS CAME OUT IN 1995. THE LAW IN 1992 WAS CHESTNUT AND THIS COURT LAST WE E K IN THE JERMAINE FO STER CASE , EXAMINED THAT SAME ISSUE. THERE WAS AN ISSUE THERE WHERE THERE WAS AN ALLEGATION OF INEFFECTIVE NESS OF DEFENSE COUNSEL FOR NOTPRESENTING A VOLU NTARY INTOXICATION DEFENSE, ANDTHIS COURT OUT LINED THAT THE L AW IN EFFECT AT THE TIME WAS CHEST NUT , AND THAT COUNSEL COULD NOT BE DE EMED INEFFECTIVE FOR NOT ANTICIPATING A CHAN GE IN THELAW , A CHA NGE THAT WOULDCOME IN 1995 WITH BI AS, SO THE STATE SUB MITS THAT ALL OF EXPE RTS THAT THE DEFENDANT PRESENTED , THEIR TESTIMONY COUL D NOT HAVE BEEN CONSIDERED , COULD NOT HAVE BEEN USED BY COUNSEL I N 1 992, BECAUSE ALL OF THEIR OPINIONS WERE BAS ED ON THE COMBINED EFFECT OF THE ALCOHOL , DRUGS AND MENTAL DEFECT. JUST JUST WE ARE GOING TO TALK --

JUSTICE: WE ARE GOING TO TALK ABOUT ALCOHOL THEN. MR . REAVES MAINTAINS THAT DEFENSE COUNSEL SHOULD HAVE TALKED WITH MR. HINTON , WITH THE GIRLFRIEND , TO DETERMINE THE EX TENT OF HIS INTOXICATION, S INCE OF COURSE IN HIS STATEMENT, HE DOES SAY SEVERAL TIMES THAT HE WAS HIGH WHEN THIS WAS ALL GOING ON , AND SO WOULDN'T A REASONABLE DEFENSE ATTO RNEY HAVE CHECKED F URTHER INTO THE EXTENT OF HIS INTOXICATION?

THIS DEFENSE ATTORNEY DID CHECK. REGARDING MR. HINTON , MR. HINTON TESTIFIED AT THE FIRST TRIAL WHICH WAS HELD IN 1997. PRIOR TO HIS TESTIMONY, HE GAVE THREE STATEMENTS TO THE P OLICE AND HE WAS DEP OSED . IN NON E OF THOSE STATEM ENTS , DEPOSITION, OR HIS 19867 TESTIMONY, DID HE SAY THAT MR . -- IN HIS 1987 TESTIMONY DID HE SAY THAT MR . REAVES APPEARED INTOXICATED OR STRUNG-OUT OR ON CO CAINE . HE SAID TO THE CONTRARY WHEN HE SHOWED UP AT HIS HOUSE , HE WAS FUNC TIONING NORMALLY , HIS SPEECH WAS NOT SLURRED , HE WAS IN FULL CONT ROL OF ALL OF HIS FACULTIES. HE WAS ABLE TO TE LL MR. HINTON, R E COUNT ALL OF THE DETAILS OF THE MURDER. HE TOLD MR. HINTON EXACTLY HOW IT WAS A NICE ENC OUNTER BETWEEN HIM AND THE DEPUTY UNTIL THE GUN FELL OUT. HE DESCRI BED FOR MR . HINTON HOW HE WAS ABLE TO WRESTLE THE GUN FROM THE DEPUTY, HOW HE HELD IT TO HIS THROAT , HOW THE DEPUTY BE GED FOR HISLIFE AND HOW HE THEN SHOT HIM.

IS THIS AT THE POINT WHERE HE MADE SOME STATEMENTTO THE EFFECT THAT IT WAS HIM OR ME?

HE TOLD MR . HINTON THAT HE SAID TO THE DEPUTY ONE OF US HAS TO GO , YOU OR ME. HE TOLD MR. HINTON. THAT WAS MR. HINTON'S TESTIMONY IN 1987. HE THEN REFUSED TO TESTIFYAT THE 1992 TRIAL , WHICH WASTHE SE COND TRIAL.

JUSTICE: HOW DID THAT REALLY COME ABOUT? HE JUST SAID I AM NOT GOINGTO COME?

HE WAS CALLED IN BY THE JUDGE, AND THE JUDGE ASKED HIM NO LESS THAN TWELVE TIMES FORM THE JUDGEINFORMED HIM THAT HE COULD NOT TAKE THE FIFTH AMEN DMENT PRIVILEGE BECAUSE HE HAD BEEN SUBPOENA ED AS A WIT NESS AND HE WAS REQU IRED TO TESTIFY. HE TOLD THE JUDGE T W ELVE TIMES, I KNOW NOTHING. I DON'T CARE. YOU CA N'T DO ANYT HING TO ME. I A M ALREADY SERVING A 30-YEAR SENTENCE. I KNOW NOTHING AND I WILL NOT TESTIFY. THE JUDGE ENDED UP HO LDING HIM IN DI RECT CRIMINAL CONTEMPT OF COURT AND A DDED SIX MONTHS TO HIS SENTENCE AND RULED THAT HE WAS UNAVAILABLE BECAUSE HE WAS WILLFULLY REFU SING TO TESTIFY.AT THAT POINT HIS TESTIMONY FROM THE 1987 TRIAL WAS READ INTO THE REC ORD AND NOW IT WASN'T UNTIL ALL THESE YEARSLATER IN 199 9 THAT HE COMES FORWARD FOR THE FI RST TIME WITH AN AFFIDAVIT AND SAYS THAT, WHEN REAVES CAME TO HIS HOUSE HE A PPEARED STRUNG-OUT AND AS THO UGH HE HAD BEEN SMOKING COC AINE.

CHIEF JUSTICE: HOW IS THAT AFFIDAVIT , I AM HAVING A LITTLE TROUBLE ABOUT WHY THE JUDGE DIDN'T ALLOW HIM TO TESTIFY AT THE EVIDENTIARY HEARING. WAS THIS AFFI DAVIT PROFFERED AS NE WLY -DISCOVERED EVIDENCE? THAT IS A RECANTATION OF HIS PRIOR TESTIMONY? SHOULDN'T IT HAVE BEEN CONSIDERED IN THAT WAY ?

THE AFFIDAVIT WAS PROFFERED AND THE JUDGE ACTUALLY DID CONSIDER IT, AND WHAT THE JUDGE FOUND HE CONSIDERED THE AFFIDAVIT, HE ALLOWED , I BELIEVE IT WAS M ISS DONNA HO E TO GIVE A PROFFER -- MI SS DON AHO TO G IVE A PROFFER ON THE RECORD. SHE TOLD THE COURT SHE HAD JUST COME BACK FROM SPEAKING WITH MR . HINTON AT THE PRISON, AND BAS ICALLY THE SUM AND SUBSTANCE OF WHAT HE TOLD HE R AT THE PRISON WAS IN ACCORDANCE WITH THE AFFIDAVIT, SO THE COURT SAID SHE COULD PROFFER THAT , THAT SHE WASN'T REQUIRED TO GET A SWORN STATEMENT FROM HIM , THAT SHE COULD PROFFER THAT .

CHIEF JUSTICE: WAS IT CONSIDERED AS PART OF A NEWLY -DISCOVERED EVIDENCE CLAIM BECAUSE IT COULDN'T BE INEFFECTIVE ASSISTANCE IF HE WAS JUST NOT RECA NTING.

THEY WERE SHOWING IT AS A PREJUDICE PRONG.

CHIEF JUSTICE: SO IT WAS NOT --

NO , NOT NEWLY-DISCOVERED EVIDENCE, A ND AT THE FEBRUARY 23 HEARING, WITHWHERE THE JUDGE RULED THAT HE WOULD NOT GRANT THEMOTION TO HAVE MR. HINTON COME TESTIFY , THEY SAID THAT THEY WERE RE LYING UP ON MR . HINTON TO SHOW THE P REJUDICEPRONG FOR FAILURE TO PRESENT THE VOLU NTARY INTOXICATION DEFENSE.

CHIEF JUSTICE: OTHER THAN THAT WHAT YOU ARE SAYING --

THE JUDGE SAID HOW COULD I CON SIDER MR . HINTON'S TESTIMONY AS TO WHETHER COU NSEL WAS INEFFECTIVE IN 1 992 BECAUSE BECAUSE M R . HINTON MADE HIMSELF AVAILABLE IN 1992 AND REFUSED TO TESTIFY , BUT HE ALLOWED THEM TO SUB MIT AND CONSIDER THE PROFFE R.

CHIEF JUSTICE: AND THE I DEA THAT COUNSEL THEN SHOULD HAVE TALKED TO HINTON AND TRY TO GET HIM TO CHANGE HIS TESTIMONY THAT HE HAD ALREADY GIVEN IN 1987? THAT WAS WHAT WAS BEING ARGUED?

THERAPY GU ESS , ARGUINGTHAT THIS AFFIDAVIT -- THEY WERE, I GUESS, ARGUING THAT THIS AFFIDAVIT NOW SHO ULD BE CONSIDERED AS EVIDENCE TO SHOW THAT WHEN MR . REAVES SHOWED UP AT THE HOUSE NOW , HE WAS STRUNG-OUT , WHI CH WAS A DIRECT CONTRADICTION T O PREVIOUS TESTIMONY.

CHIEF JUSTICE: I AM TRYING TO FIGURE OUT HOW THAT GO ES TO AN INEF FECTIVE ASSISTANCE OF COUNSEL CLAIM.

RIGHT. THEY WERE RELYING IT T O PROVE THEIR PREJUDICE, THE PREJUDICE PRONG OF THE CLAIMTHAT, HAD THEY BEEN ABLE TO SUBMIT HYPOTH ONE'S NOW REC ANTED OR DI FFERENT -- SUBMIT HINTON'S NOW RECANTED OR DIF FERENT TESTIMONY THAT THAT THE RESULT OF THE TRIAL WOULD HAVE BEEN DIFF ERENT , BUT THE COURT FOUND IT WAS INCREDIBLE.

JUSTICE: AREN'T THEY ALSO SAYING THAT, IF DEFENSE COUNSEL HAD ACTUALLY TALKED TO MR . HINTON , THAT THIS I S WHAT THE DEFENSE ATTORNEY WOULD HAVE FOUND, WHICH WOULD HAVE BOLSTERED MR . REAVES 'S STATEMENTS ABOUT INTOXICATION. I MEAN , I THI NK THEY ARE USING IT AS I SEE IT FOR BOTH PRON GS OF THIS INEFFECTIVE ASSISTANCE.

THEY HAVE N O SUPPORT FOR THAT ARGUMENT , BECAUSE THERECORD SHOWS FROM THE 1992 TRIAL THAT MR . KIRCHNER ASKED IF HE COULD GO OUT AND TALK TO MR. HINTON TO SEE IF HE COULD GET HIM TO COME AND AGREE TO TESTIFY AND HE DID G O OUT TO TALK TO HIM AND HE WAS NOT GOING TO TESTIFY FOR ANYONE. HE DIDN'T WAN T TO HAVE ANYTHING TO DO WITH TESTIFYING.

CHIEF JUSTICE: IS THAT WHAT MR . KIRCHNER SAID THAT HE DID TRY TO GO TALK TO MR. HINTON BACK IN 1992?

RIGHT. I WANT TO CORRECT THAT. I AM NOT SURE IF THAT WAS ASKED OF HIM AT THE EVIDENTIARY HEARING BUT THE RECORD IN THE 1992 TRIALSHOWS THAT HE WAS ALLOWED TO GO OUT AND TALK ED TO HIM AND BASICALLY THE RESULT WAS HE C AME BACK AND HE WAS NOT GOING TO TESTIFY.

JUSTICE: HE REFUSED TO TESTIFY. AS I UNDERSTAND MR. REAVES'S ARGUMENT IS THAT , EVEN PRIOR TO THAT POINT THAT IF HE HAD REALLY TALKED WITH MR. HINTON, ASSUMING MR . HINTON WOULD TALK TO HIM, THAT HE COULD HAVE GO TTEN THIS INFORMATION. THAT IS WHAT I SEE AS PART OF THEIR ARGUMENT FOR F AILURE OF DEFENSE COUNSEL TO THOROUGHLY INVESTIGATE THE CLAIM .

A GAIN , THE WHAT THAT , WHAT THAT RECANTED TESTIMONYCOULD BE USED FOR PRACTICAL PURPOSES, THE COURT SAID THAT IT CONSIDERED IT INCREDIBLE AND IT WOULD NOT RELY UPON IT IN SUPPORTING A VOLUNTARY INTOXICATION DEFENSE , BECAUSE HE HAD MADE HIMSELF VOLUNTARILY UNAVAILABLE FOR THE TRIAL.

JUSTICE: WHAT DISCUSSIONS DID DEFENSE COUNSEL , E ITHER COUNSEL DIRE CTLY WITH MR . HINTON OR THROUGH THE INVESTIGATOR DID THE PRIOR COUNSEL IN THE FIRST TRIAL HAVE WITH MR . HINTON? I AM TRYING T O F I GURE OUT WHAT MR . KIRCHNER WOULD HAVE HAD AVAILABLE TO HIM, OTHER THAN THE DEPOSITION TESTIMONY AND THE STATEMENT TO L AW ENFORCEMENT, THAT EITHER THROUGH PRIOR COUNSEL OR AN INVEST IGATOR TALKING TO HINTON. WAS ANY OF THAT DONE?

WHAT THE RECORD SHOWS IS THAT MR . KIRC HNER TOOK OVER , AND HE HAD EXTENSIVE DISCUSSIONS WITH FIRST TRIAL COUNSEL MR . BA RNES , REGARDING STRATE GY. I WANT TO POINT OUT TO THE COURT THAT I N THE FIRST TRI AL, THE DEFENSE WAS LACK OF PREMEDITATION , A VOLUNTARY INTOXICATION DEFENSE WAS NOT RAISED THERE.HOWEVER , AN INSTRUCTION WASGIVEN BECAUSE THERE WAS SIMILAR EVIDEN CE THAT HADCOME IN AS IT DID IN THIS TRIAL , ABOUT REAVES'S POSSESSION OF 4.4 GRAMS OF COCAINE AT THE TIME OF ARREST AND TESTIMONY ELICITED THAT HE WAS V ERY SKINNY LIKE A C RACK A DDICT , WHEN HE WAS ARRESTED. S O MR. KIRCHNER CONS ULTED WITH MR . BARNES EXTENSIVELY REGARDING THE FIRST TRIAL .

JUSTICE: BARNES TALKED TO HINTON?

HE OBVIOUSLY TALKED TO HIM AL THOUGH IT IS NOT REFLECTED IN THIS RECORD AND AT THE 1987 TRIAL.

JUSTICE: FOR THE STATE?

YES. NOT THE DEFENSE AND THAT IS WHEN HE SAID WHEN REAVES CAME TO HIS HOUS E HE WAS NOT SLURING HIS WO RDS , DID NOT A PPEAR TO BE INTOXICATED AND WAS IN CONTROL OF HIS FACULTIES .

JUSTICE: BUT THE STATE DEPOSED HIM?

RI GHT.

CHIEF JUSTICE: IT IS PRETTY CL EAR IN THIS CASE THAT AT THE VERY L EAST WHAT WAS GOING ON WAS SOMEBODY WHO WAS PROBABLY AN ADDICT WHO WAS IN A MODE OF N E EDING TO GET DRUGS , AND WAS THAT PICTURE PRESENTED IN 1992? I MEAN , BECAUSE THEY WERE GOING FOR AN EXCUSEABLE HOMICIDE, BUT --

WELL , DEFENSE COUNSEL SAID THAT HIS PRI MARY DEFENSE WAS EXC USEABLE HOM ICIDE BUT HE SAID HE DIDN'T IGNORE THE DEFENSE OF VOLUNTARY INTOXICATION. HE RELIED U PON IT AS A FALLBACK DEFENSE. I T WAS NEVER DISPUTED BY THESTATE , AND THERE WAS TESTIMONY AD MITTED THAT REAVES WAS A CHRONIC DRUG ABUSER BUT FOR THE VOLUNTARY INTOXICATION, IT IS NOTENOUGH TO SHOW USE OF INTOXICANTS OR THE DEFENDANT IS A DRUG ADDICT.YOU HAVE TO SHOW THE LE VEL OF INTOXICATION AT THE TIME OF THE CR IME, SO THAT IT WOULD BE PO SSIBLE TO NE GATE THE SPECIFIC INTENT TO KILL, AND THAT IS WHAT IS CRUCIALEVIDENCE THAT IS MISSING , EVEN FROM THE EVIDEN TIARY HEARING. THEY WERE NOT ABLE TO PRESENT ANYTHING OTHER THAN REAVES'S SELF-SERVING STATEMENTS IN HIS CONFESSION AS TO THAT CRITICAL IS SUE OF THE LEV EL OF INTOXICATION AT THE TIME OF THE CRIME.

CHIEF JUSTICE: WHAT TESTING IS BEING REQUESTED?

THE TESTING IS BEING REQUESTED ON THE GIRLFRIEND JACQUE'S HOUSE, THERE WAS FOUND I BE LIEVE AN EMPTY WINE BOTTLE, A F EW ASHTRAY S , A MARIJU ANA CIGARETTE OR ROACH , AS THEY REFER TO IT , AND THEN THEY ALSO RETRIEVED REAVES'S CLOTHING THAT HE WAS WEARING AT THE TIME OF THE MURDER, RED SHO RTS AND A WHITE T-S HIRT . THERE WERE HAIRS FOUND ON THAT AND THEY WERE REQUESTING --

CHIEF JUSTICE: HOW DOES THAT RELATE TO THE VOLUNTARY INTOXICATION?

THAT I S WITH THE T RIAL JUDGE. THE TRIAL JUDGE SAID I AM NOT GOING TO REQUIRE TESTINGBECAUSE IT IS GOING TO SHOW MAYBE THE PRESENCE OF METABOLYTE S , EVE N THE HAIR THEIR OWN WITNESS , DR . MASH SAID YOU CAN'T TELL THE DATE OF INGE STION OF DRUG S FROM THE HAIR OR THE LEVEL OF QUANTITY OF IT. ALL YOU CAN TELL IS WHETHERTHERE WERE DRUGS TAKEN IN A WINDOW OF TIME, MAYBE UP TO 30 D AYS.

JUSTICE: WHAT WAS THE TESTIMONY OF THE DEFENSE LAWYER AT THE EVIDENTIARY HEARING, ABOUT THING CONVERSATIONS HE HAD WITH -- ABOUT THE CONVERSATIONS HE HAD WITH HIS OWN CL IENT ABOUT HIS CLIENT'S STATE OF INTOXICATION OR WHATEVER, AT THE TIME OF THE OFFENSE?

HE K NEW FROM THEBEGINNING OF THE CASE WHEN HE TOOK THIS CASE OVER FROM MR . BA RNES , HE KNEW THAT REAVES WAS A CHRONIC DRUG ABUSER, HE SAID. HE KNEW THAT THERE HAD BEEN DRUGS TAKEN --

JUSTICE: I AM NOT AS KING WHAT HE KNEW.I AM ASKING ABOUT HISCONVERSATION WITH HIS CLIENT. DID HE TESTIFY THAT HE TALKED TO HIS CLIENT ABOUT HIS STATE OF INTOXICATION OR NOT NONINTOXICATION OR DRUG USE OR WHATEVER?

HIS TESTIMONY WAS THAT HE TALKED TO HIM ABOUT HIS VOLUNTARY INTOXICATION AND I DON'T BELIEV E HE COULDRECALL THAT HE HAD OR HADN'T. HE RECA LLED THAT HE DISCUSSED THE BEST DEFENSETHAT HE HAD WITH HIS CLIENT , WHICH HE CAM E UP WITH MR . WEITZ.

JUSTICE: DID HE SAY HE TALKED TO THE CL IENT ANDASKED HIM ABOUT THE CIRCUMSTANCES OF HIS CRIMEAND ASKED HIM WHETHE R HE WAS STRUNG-OUT ON DRUGS? IN OTHER WO RDS --

I DON'T BELIEVE IT WAS ON THE RECORD THAT HE DID THAT . I BELIEVE THAT IS WHAT HIS TESTIMONY WAS. HE WASN'T ABLE TO GIVE ANYSPECIFICS ON THAT .

JUSTICE: THE TRIAL COURTSAID THAT HE DISCUSSED THE USE OF CO CAINE AROUND THE TIME OF THE INCIDENT BUT DID NOT RECALL DISCUSSING THE OPPOSITE OF VOLUNTARY INTOXICATION AS A DEFENSE.

I AM SO RRY .

JUSTICE: HOW DOES THAT FIT INTO THE HEARING , IF YOU CAN ELABORATE?

HE DID SAY HE DISCUSSED VOLUNTARY INTOXICATION BUTTHE USE OF COC AINE TAKE N ON THE DAY , AND THERE WAS NO DISPUTE THAT REAVES HAD TAKEN DRUGS ON THE DAY. THE REL EVANT QUESTION WAS HIS LEVEL OF INTOXICATION AT THE TIME. THERE WAS ALSO TESTIMONY IN THE RECORD THAT AT THREEO'CLOCK IN THE AFTERNOON PRECEDING THIS HE HAD HIS CAR BREAKDOWN SOMEWHERE IN EITHER GIFF ORD OR ZERO BEACH AND HE WAS -- OR VEER' BEACH , AND HE WAS -- OR VERO BEACH , AND MR. FR EDELL , WHO HELPED HIM , SAID THERE WAS NO INDICATION OF DRUGS OR INTOXICATION ON THAT DAY , AND HE WAS ABLE TO HELP HIM FIX HIS CAR AND GIVE HIM DIRECTION WHERE HE NEE DED TO NEGOTIATION WHICH IS ALSO PART AND PARCEL THAT REAVES HAD EXCELLENT RECOLLECTION OF EVERY DE TAIL OF WHAT HAPPENED DURING THIS CRIME, WHICH CUTS AT A VOLUNTARY INTOXICATION DEFENSE.

CHIEF JUSTICE: IT WAS TOUCHED ON EARLIER ABOUT HIM CALLING 9 11 IN ORDER TO GET A TA XI. IS I T , WAS THERE ANY TESTIMONY ABOUT WHETHER L AW ENFORCEMENT WILL JUST R UT I AM LY RESPOND - - ROUTINELY RESPOND AND ORDER TAXI FOR A P ERSON THAT OTHERWISE IS IN A PRO PER MENTAL STATE , TO LET THEM GET A RIDE HO ME?

THE 911 OPERATOR TESTIFIED THAT IT IS THEIR POLICY TO SEND OUT, IF THEY HAVE A H A NG-UP CALL ON 911, AS SOON AS A 911 CALL COMESIN, THE ADDRESS COMES UP ON THE SCREEN, SO IT IS THEIR POLICY TO DISPATCH A DEPUTY BECAUSE IT COU LD BE A THAT A PERSON IS IN TROUBLE AND THEY ARE JUST NOT ABLE TO COMMUNICATE THAT, SO THAT IS THEIR PO LICY THAT THEY GO, AND HE DID , AND THE ZIPPY MART WAS CLOSED AT THE TIME AND MR. R EAVES WAS THERE AND THAT IS WHEN HE ENCOUNTERED HIM BECAUSE HE WAS ON RO AD PATROL. GET TING BA CK TO THE OTHER DETAILS THAT REAVES WAS ABLE TO REMEMBER , I WANT TO POINT OUT THAT HE WAS ABLE TO DRAW A DIE GRAHAM OUTLINING THE LOCATION OF THE ZIPPY MART,WHERE THE DUMPSTER WAS , WHERE THE CAR WAS PARKED. HE REMEMBERED, THIS IS HOW EXTENSIVE HIS ME MORY AND RECOLLECTION OF THE NIGHT OF THE CRIME WAS. VIRTUALLY UNDERCUTTING ANY VOLUNTARY INTOXICATION DEFENSE , AND --

CHIEF JUSTICE: YOU AREOUT OF T IME. I AM SORRY .

THANK YOU. WE ASK THAT THE COURT AFFI RM THE DE NIAL OF THE. THANK YOU .

CHIEF JUSTICE: REBUTTAL .

CONSIDER THE SCENE. IT IS THREE A.M. IN THE M ORNING , A TELEPHONE B OOTH OUTSIDE A SERVICE STATION ZIPPY MART THAT IS ALREADY CLOSED. I THINK THAT TELLS YOU SOMETHING ABOUT THE SET ANDSETTING OF T HIS CRIME. AS TO THE AFFIDAVIT OF MR. HINTON, I WANTED TO P OINT OUT TO THE COURT THAT THAT WAS ATTACH ED TO THE 3.850 WHICH WAS SUMM ARILY DENIED BY THE JUDG E IN THIS CASE BEFORE THIS COURT SENT THE CASE BACK FOR THE VERY LIMITED EVIDENTIARY HEARING ON THE VOLUNTARY INTOXICATION ISSUE, SO THE QUESTION AS TO THE EVIDENTIARY REASONS FOR ATTACHING THE 3 .850 , THAT NEW AFFIDAVIT FROM MR . HINTON, GO BACK TO THE ORIGINAL 3.850. IT SOR T OF OUTSIDE THE CONTEXT OF THE NARROW ISSUE THAT THE COURT BELOW WAS HEARING.

CHIEF JUSTICE: WELL, DIDYOU IN THE 3.850 , WAS THEREA SEPAR ATE CL AIM OF NEWLY-DISCOVERED EVIDENCE?IN OTHER WORDS, WAS THAT, I M EAN , YOU ARE A SEASONED POSTCONVICTION ATTORN EY . WAS THAT PLEADING MEANT TO O FFER HINTON 'S AFFIDAVIT AS NEWLY -DISCOVERED EVIDENCE OF REC ANTATION?

SINCE THIS WAS AN OLD RULE CASE , MY RECOLLECTION IS AT THE TIME WE FILE D IT , THAT WAS CERTAINLY OURINTENT. I WOULD HAVE TO GO BACK AND ACTUALLY --

CHIEF JUSTICE: THAT WOULD BE BRIEFS THAT YOU -WOULDHAVE STATED BACK THE FIRST TIME THAT W E HAD THIS CASE THAT THE TRIAL COURT E RRED IN SUMM ARILY DENYING A NEWLY-DISCOVERED EVIDENCE CLAIM?

AGAIN, I HAVE TO GO BACK AND LOOK AT THE PLEADING YOUR HONOR. I HON ESTLY DON'T REMEMBER. AS TO THE FINDINGS OF THE COURT, THERE WAS NO FINDING BY THE COURT THAT MR . HINTON'S STATEMENT WAS INCREDIBLE. THAT IS NOT IN THE ORDER ANYWHERE , AND THE STATE INDICATED THAT HE HAD FO UN D IT TO BE INCREDIBLE. THAT SIM PLY NOT TR UE. AS TO THE Q UESTION OF TALKING TO HINTON , THE MOST IMPORTANT THING TO RECALL ISTHAT THE TESTIMONY B Y MR . KIRCHNER WAS THAT HE DIDN'T TALK TO MR. HINTON ABOUT DRUG USE, ABOUT INTOXICATION , OR ABOUT ANYTHING REL ATING TO THAT .

JUSTICE: YOU SEEM, THERE ARE TWO THINGS GOING ON HERE THAT I AM HAVING DIFFICULTY UNDERSTANDING YOUR SIDE OF IT. ONE IS THAT YOU ARE SAYING COUNSEL WAS DEFICIENT IN NOT TALKING TO THE GIRLFRIEND , AND YET IN YOUR OUTLINE OF WHAT THE GIRLFRIEND HAS TO SAY , THAT SHE DIDN'T HAVE ANYTHING TO SAY ABOUT HIS INTOXICATION. AND IN TALKING ABOUT HIM BEING DEFI CIENT I N NOT TALKING TO MR. HINTON , IT APPEARS THAT MR . HINTON 'S ACTUAL TESTIMONY BACK AT THE TIME OF THE FIRST TRIAL AND GIVING A DEPOSITION , WAS THAT H E WAS NOT STRUNG-OUT OR WHATEVER , SO I AM HAVING SOME DIFFIC ULTY IN TE RMS O F THESE ALLEGA TIONS AS FAR A S THOSE TWO WITNESSES ARECONCERNED , AS TO WHAT AT THE TIME , WHAT PREJUDICE YOU COULD ESTABL ISH .

IT WAS CERTAINLY ENOUGH EVIDENCE IN HINTON 'S DEPOSITION AND TH REE PRIORSTATEMENTS, THAT COUNSEL DEFINITELY SHOULD HAVE PROVIDED THAT INFORMATION TO DR . WEITZ, IF HE HAD ANYINTENTION OF PRESENTING A VOLUNTARY INTOXICATION CASE AT THE GUILT P HASE , BECAUSEDR. WEITZ HAS TESTIFIED HE WOULD HAVE SAID THAT HE WAS VOLUNTARILY INTOXICATED , AND HE DIDN'T EVEN HAVE THE STATEMENTS FROM HYPOTHONETHAT I BELIEVE --

JUSTICE: ISN'T THERE DIFFICULTY WITH DR . WEIT Z'S TESTIMONY, BECAUSE WHAT IS PREVENTING HIM IF HE KNEW ALL OF THIS AND HAD ENOUGH TO GO ON BY THAT, AS OPPOSED TO COUN SEL ASKING HIM ABOUT THAT , OF NOT HIM SELF SAYI NG, OKAY, THAT WHAT YOU HAVE HERE IS AN INTOXICATED PERSON THAT APPARENTLY WAS ACTING ON THE BA SIS OF THE INFLUENCE OF THESE DRUGS ANDALCOHOL.I AM HAVING TR OUBLE WITH WEITZ SAYING --

THAT IS A DEFICIENCY ON THE PART OF THE EX PERT FOR SURE. NOW , WHOSE RESPONSIBILITY ULTIMATELY IT IS , I