Connie Ray Israel v. State of Florida

SC05-1739 | SC06-653

NEXT CASE ON CALENDAR THIS
MORNING IS ISRAEL VERSUS STATE
OF FLORIDA.
>> GOOD MORNING.
ROBERT STRAIN, FOR CONNIE RAY
ISRAEL THE APPLE LANT IN THIS
CASE.
BRIEFLY, THE COURTS ARE AWARE
RECORD AT TRIAL SHOWED THAT
CLOSING ARGUMENT DURING PENALTY
PHASE BY THE DEFENSE COUNSEL
WAS ABOUT, THREE MINUTES
INCURSION.
IT TAKES UP JUST THREE PAGES OF
THE RECORD ON APPEAL.
>> ARE THERE ANY CASES FROM
THIS COURT SAYING THAT THE MERE
FACT OF A DEFICIENT CLOSING
ARGUMENT, NOT THAT YOU'VE CON
HE SEEDED ANYTHING AT CLOSING
BUT JUST THAT YOU WEREN'T
FORCEFUL ENOUGH, DIDN'T ARGUE
ENOUGH AT CLOSING THAT THAT WAS
ENOUGH TO PROVE BOTH DEFICIENT
PERFORMANCE AND PREJUDICE?
>> LET ME START, WHAT IS A
PREJUDICE, FIRST, JUSTICE
CANTERO.
I POINTED OUT I BELIEVE
ESPECIALLY IN THE REPLY REPLY
BRIEF, COMBINATION OF JURY
NEVER HEARING A WORD ABOUT
NONSTATUTORY MITIGATION OR WHAT
THE COURT INSTRUCTIONS WERE
GOING TO BE FOR THEIR
CONSIDERATIONS FOR THE ADVISORY
OPINION, COMBINED WITH THE ZERO
ARGUMENT OR INFORMATION
PROVIDED AT THE SPENCER AND
FAILURE TO FILE THE SENSING
MEMORANDUM, MEANT THAT, CONNIE
RAY ISRAEL ENDED UP WITH A
SENTENCING ORDER THAT WAS
WRITTEN BY THE STATE.
THE STATE PROVIDED THE LANGUAGE
THAT SAID THAT CONNIE RAY
ISRAEL'S --
>> YOU'RE COMBINING ALL OF YOUR
ARGUMENTS THOUGH THEY ALL LEAD
--
>> THEY ALL LEAD TO THE
PREJUDICE AND THE PREJUDICE IS,
THAT EVEN THE TRIAL COURT DID
NOT HEAR THE SLIGHTEST WORD OF
ARGUMENT BEYOND THE STATUTORY
EVIDENCE THAT HE HEARD FROM
DR.^KROPP.
THE PREJUDICE THAT THE WORDS OF
THE ECONOMY RAY ISRAEL'S HAVING
A BAD CHARACTER, HAVING A BAD
RECORD, CHARACTERER IS WORSE
AND OFFENSE IS HORRIBLE, THAT
WAS WRITTEN BY THE STATE IN
THEIR SENTENCING MEMORANDUM.
>> I GUESS I'M TRYING TO GO
ARGUMENT BY ARGUMENT.
YOU'RE MELDING THEM ALL
TOGETHER, SAYING CUMULATIVELY
YOU SHOW PREJUDICE.
YOU MAY BE RIGHT.
BUT YOU STARTED ARGUMENT SAYING
THIS WAS A THREE-PAGE CLOSING
ARGUMENT.
>> OKAY.
WELL, SIMPLY I CITED IN ONE OF
MY BRIEFS THE NOTION IS, NO, I
DO NOT HAVE A CASE THAT SAYS
THAT A 3-MINUTE CLOSING
ARGUMENT TO THE PENALTY PHASE
JURY OR AUTOMATICALLY OR PER SE
INEFFECTIVE.
BUT MY BRIEF DOES CITE AT LEAST
SIX OR SEVEN CASES THAT
INDICATE, IF THE COURT HAD
LIMITED DEFENSE COUNSEL TO 30
MINUTES OR LEFT FOR CLOSING
ARGUMENT ESPECIALLY IN CAPITAL
CASE THAT LIKELY WOULD HAVE
BEEN REVERSEABLE ERROR.
>> THIS IS MY PROBLEM.
I, I AM, -- THREE MINUTE, THREE
PAGE CLOSING ARGUMENT --
[INAUDIBLE]
SOME PEOPLE MIGHT BE VERY
EFFECTIVE IN THREE MINUTES AND
THREE PAGES BUT THIS IS ALMOST,
I THINK AN EMBARASSMENT OF A
CLOSING ARGUMENT AND, YET, THIS
IS, IN TERMS OF THE PREJUDICE,
LET'S ASSUME THAT THE, ISSUE IS
THE DEFICIENCY OF THE CLOSING
NOT MENTIONING STATUTORY
MITIGATION AND THERE IS NO
SENTENCING MEMORANDA SO WE END
UP SAYING ON DIRECT APPEAL
THAT, THERE IS NO BASIS FOR
FINDING THE NONSTATUTORY
MITIGATION, THE NONSTATUTORY
MITIGATION IS THE DRUG ABUSE,
BRAIN DAMAGE, THE, LOW IQ, BUT,
THERE IS NO DEFICIENCY IN THE
PRESENTATION OF THE MITIGATION,
THAT I CAN SEE.
THAT IS WHAT WAS ACTUALLY
PRESENTED.
THE TRIAL JUDGE DOES FINE THE
TWO STATUTORY MITIGATORS AND
THE STATUTORY MITIGATORS REALLY
INCORPORATE WHAT WOULD BE THE
NONSTATUTORY MITIGATION BECAUSE
TALKING ABOUT THE MUCH MORE
SIGNIFICANT THAN, SAYING, WELL
HAS HISTORY AFTER DRUG ABUSE.
SO MY CONCERN IS IS THAT
ALTHOUGH YOU MAY BE ABLE TO
ESTABLISH DEFICIENT PERFORMANCE
AND YOU MAY BE ABLE TO SHOW AN
EFFECTS ON THE SENTENCING
ORDER, THE ISSUE IS, THAT THE
UNDERMINE THE CONFIDENCE, THE
OUTCOME OF THE, DEATH SENTENCE
IN THIS CASE.
THAT'S WHAT I THINK YOU'RE
GOING TO NEED TO REALLY
ADDRESS.
WHAT IS THE, SO COMPELLING
ABOUT WHAT WAS PRESENTED THAT
WOULD HAVE BEEN, RESULTED IN A
LIFE SENTENCE IN THIS CASE?
>> WELL, JUSTICE PARIENTE, IT'S
A DIFFICULT POSITION FOR ALL OF
US INVOLVED.
AND, WHAT I, YOU'RE HITTING THE
NAIL ON THE HEAD.
AND THE IDEA IS WHERE A COURT
FINDS, AT THE CONCLUSION OF
SPENCER HEARING, TWO STATUTORY
MITIGATORS DOES THAT GIVE A
WASH TO THIS TRIAL ATTORNEY TO
NOT, TO NOT ADDRESS THE PENALTY
PHASE JURY WITH ANYTHING ELSE?
>> IT'S JUST THE ISSUE THAT
THE, HAD EFFECT OR --
[INAUDIBLE]
>> WELL, SPECIFICALLY, MY BRIEF
LISTS MAYBE UPWARDS OF 20 OR SO
BROKEN DOWN SOME CASE LAW,
DIFFERENT NONSTATUTORY
MITIGATORS.
THAT COULD HAVE BEEN OUTLINED
BUT THE KEY IS THAT THE,
ATTORNEY NEVER TOLD THE JURY,
NOT ONE WORD CAME OUT OF HIS
MOUTH ABOUT WHAT THEY WERE TO
DO WHEN THEY WERE WORKING ON
THE ADVISORY SENTENCE.
HE DIDN'T MENTION THE LAW ABOUT
MITIGATORS, OR AGGRAVATORS,
ABOUT, STANDARD OF PROOF FOR
THE AGGRAVATORS BY THE
PROSECUTION --
>> I MEAN YOU GOT TO, YOU GOT
TO AGREE THAT HE ASKED THE JURY
TO, NOT GIVE A DEATH
RECOMMENDATION BUT TO GIVE A
LIFE SENTENCE, THAT THE MAN WAS
GOING TO SPEND THE REMAINDER OF
HIS LIFE --
>> HE TOUCHED ON THE TWO
STATUTORY MITIGATORS BY
REFERENCING DR.^KROPP'S
PREVIOUS TESTIMONY.
HE POINTED OUT THAT ESSENTIALLY
AS A NONSTATUTORY MITIGATOR
THAT CONNIE RAY ISRAEL WAS
ALREADY IN PRISON FOR LIFE AND
WOULDN'T BE GOING ANYWHERE
EVEN, --
>> HOW LONG DID DR.^KROPP'S
TESTIMONY LAST?
>> I DON'T REMEMBER THE NUMBER
OF PAGES BUT IT TOOK UP JUST
PART OF, PART OF THE MORNING.
HE MIGHT HAVE BEEN ON THE, I
WOULD ESTIMATE, MAYBE AN HOUR
OR HOUR AND A HALF ON THE
STAND.
AND, --
>> HOW LONG WAS THIS TRIAL?
>> PARDON ME?
>> HOW LONG WAS THE TRIAL?
>> MAYBE MR.^NUNNELLEY COULD
CORRECT ME BUT I BELIEVE THE
JURY SELECTION TOOK ALMOST 3
1/2 DAYS.
AND THERE WERE DNA EXPERTS AND
WHAT HAVE YOU.
SO THE TRIAL I BELIEVE WAS SIX
OR SEVEN DAYS ITSELF.
>> DR.^CROFT, AGAIN I STILL
DON'T --
[INAUDIBLE]
BUT IT IS TRUE THAT, SAYS, THIS
IS WHAT, DR.^CROFT TESTIFIED TO
JUST A FEW MOMENTS AGO.
SO I'M ASSUMING THAT, DR.^CROFT
TESTIFIED AND JUST SHORTLY
AFTER THIS CLOSING ARGUMENT,
ENSUED IS THAT CORRECT?
>> YES.
IN FACT, JUSTICE PARIENTE, IT
WAS JUST A BRIEF RECESS THAT
OCCURRED.
THERE YOU HAVE IT, A STATEMENT
TO THE JURY BY A DEFENSE
COUNSEL AT A PENALTY PHASE,
JUST CANNOT WASH WHEN THEY HEAR
NOTHING ABOUT THE LAW, NOTHING
ABOUT THEIR DUTIES, NOTHING
ABOUT THEIR --
>> AND THE STATE DIDN'T PUT ON
ANY PENALTY PHASE EVIDENCE?
>> THAT'S CORRECT.
DR.^CROFT'S TESTIMONY WAS
UNCONTROVERTED.
>> SO THE PENALTY PHASE IN THIS
CASE WAS ESSENTIALLY
DR.^CROFT'S TESTIMONY, THE TEN
PAGE CLOSING ARGUMENT BY THE
STATE AND THE THREE-PAGE
ARGUEMENT HERE?
>> AND THAT'S THE KEY.
NOT JUST ESSENTIALLY BUT THAT'S
ALL IT WAS.
THAT'S WHERE THE, SPENCER
HEARING COMES IN.
THAT'S WHERE THE FAILURE TO
FILE THE REQUESTED, SENTENCING
MEMORANDUM COMES IN.
THIS ATTORNEY FOR WHATEVER
REASON, AND THAT'S WHY I ARGUE
AND HOPEFULLY WE CAN DISCUSS IT
THIS MORNING --
>> JUST THE POINT OF THAT
QUESTION IS, HOW LONG DOES THE
CLOSING ARGUMENT HAVE TO BE IF
THE ONLY EVIDENCE AT THE
PENALTY PHASE WAS DR.^CROFT'S
TESTIMONY WHICH OCCURRED RIGHT
BEFORE THE CLOSING ARGUMENT?
>> MY BRIEF CITE, JUSTICE
CANTERO, I'M SURE YOUR
BACKGROUND SHOWS, CLOSING
ARGUMENT IS OFTEN DESCRIBED AS
PINNACLE OF A TRIAL.
WHEN A ATTORNEY GETS UP THERE
YOU HAVE IT, THERE YOU JUST
HEARD IT, THAT'S IT THERE IS
NOTHING MORE THAT MAY WASH FOR,
DRUG POSSESSION CASE OF, IN
FELONY COURT BUT IT DOESN'T
WASH FOR A PENALTY PHASE IN A
CAPITAL CASE.
JUSTICE CANTERO, AGAIN MY BRIEF
OUTLINES IF IN FACT THE
ATTORNEY HAD REQUESTED AN HOUR
AND A HALF OR TWO HOURS OR FIVE
HOURS OF CLOSING TIME, AND THE
JUDGE HAD SAID, NO, YOU ONLY
GET A HALF HOUR, THEN, THIS
COURT FROM THE CASES I CITED
WOULD LIKELY HAVE REVERSED FOR
ABUSIVE DISCRETION BECAUSE IT'S
INCREDULOUS THAT SOMEBODY, --
>> DID COUNSEL TESTIFY ABOUT
WHY IT WAS SO SHORT?
>> YES, HE DID.
AND ADMITTEDLY HIS
RECOLLECTION, HE JUST NEVER
CAME UP AND I MADE REFERENCE IN
MY BRIEF A NUMBER OF TIMES, I
TRIED TO PRESS HIM FOR
STRATEGY.
BECAUSE I WAS FULLY AWARE OF
THE YARBOROUGH CASES AND THE
STATE CASES THAT TALK ABOUT THE
GREAT DEFERENCE AND, THAT WE
HAVE TO GIVE TO ATTORNEYS FOR
CLOSING ARGUMENT.
BUT, MR.^WOLF JUST COULDN'T
RECALL ANY, ANY REASON WHY HE,
NOT ONLY, HAD SUCH AN
ABBREVIATED CLOSING ARGUMENT,
THAT WHY, AT THE SPENCER
HEARING HE DID NOT ADDRESS THE
JUDGE ONCE ABOUT ANY, ABOUT
ANYTHING.
AT THE SPENCER HEARING IT WAS
SOLELY LIMITED TO DETAILS OF A,
MOTION FOR NEW TRIAL AND THE
COURT'S RULING AND MR.^ISRAEL
TOOK THE STAND.
>> HOW CAN WE VIEW ALL OF THIS
IN LIGHT OF WHAT THIS COURT
SAID IN MR.^ISRAEL'S DIRECT
APPEAL?
WHERE MR.^ISRAEL ATTEMPTED TO,
ARGUE THAT THE TRIAL COURT DID
NOT CONSIDER NONSTATUTORY
MITIGATING EVIDENCE AND THAT,
THIS, WE SAID IN THAT SENSE,
THAT NOTHING WAS PRESENTED TO
THE COURT OR NOTHING WAS ARGUED
OR POINTED OUT --
>> THAT'S CORRECT.
>> -- TO THE KATE OF MITIGATING
NATURE, NON-STATUTORY
MITIGATING NATURE.
HOW DOES THAT FIT INTO YOUR
ARGUMENT.
>> THAT CAME FROM LUCAS AND A
NUMBER OF OTHER CASES.
THAT IS THE CASE, JUSTICE
CANTERO AND JUSTICE QUINCE,
THIS COURT AS ALL THE ATTORNEYS
TRAINED AND LEARNED FROM
EXPERIENCE THEY HAVE, SOME
OBLIGATION TO OUTLINE NOT ONLY
FOR THE JURY BUT FOR THE JUDGE
WHAT THE MITIGATION IS GOING TO
BE, STATUTORY OR NONSTATUTORY.

>> BUT IN THIS CASE THE JUDGE
FOUND TWO MENTAL STATUTORY
HEALTH MITT {FWAT} TORES.
>> THAT'S CORRECT.
>> SO IT SEEMS LIKE YOU'RE
ARGUING SHOULD HAVE FOUND THE
LESSER WHEN HE FOUND THE
GREATER?
>> THAT IS THE DILEMMA OF THE
RECORD IN THIS CASE, JUSTICE
CANTERO.
NO TWO WAYS ABOUT IT.
WHEN THE COURT FINDS TWO
STATUTORY MITIGATORS, THAT'S
PRETTY POWERFUL STUFF.
>> WHAT DID THE COURT ACTUALLY
SAY ABOUT THOSE STATUTORY
MITIGATORS THOUGH?
>> WELL THE SENTENCING ORDER,
THAT BARELY TAKES UP TWO THIRDS
OF A PAGE.
IT ESSENTIALLY POINTED OUT IT
WAS UNCONTROVERTED THAT STATE
DID NOT BRING ANY.
EACH ONE, IS ESSENTIALLY GIVEN
A ONE SENTENCE FINDING THAT
THEY WERE ESTABLISHED AND,
GIVEN SOME CREDENCE.
THIS COURT ON DIRECT APPEAL
THAT YOU MENTIONED, JUSTICE
QUINCE, WAS, VERY, VERY
GENEROUS WHEN IT REFERRED TO
THE JUDGE'S, CONCLUSORY
COMMENTS ON NONSTATUTORY
MITIGATORS WHEN THEY ADOPTED
THE 4 1/2 LINE STATEMENT THAT
CONNIE ISRAEL'S RECORD WAS BAD,
HIS CHARACTER WAS WORSE AND
THIS CRIME WAS HORRIBLE.
IF THIS COURT HAS EVER RECEIVED
ANOTHER FOUR-LINE ANALYSIS OF
WHAT WAS SUPPOSED TO BE THE
INDIVIDUAL ASPECTS OF A
NONSTATUTORY MITIGATORS, IF
THAT BECAME A BOILERPLATE
RULING OUT OF THAT COURT IN
PUTNAM COUNTY I WOULD VENTURE
TO SAY THIS COURT WOULD HAVE
EXTREME PROBLEMS.
AND YET YOU SAY IT WAS
CONCLUSORY, YET IT DIDN'T EVEN
QUALIFY IN TERMS OF ONE
NONSTATUTORY WAS MENTIONED TO
THE JURY.
NOT ONE NONSTATUTORY MITIGATOR
WAS MENTIONED TO THE JUDGE AT
THE SPENCER HEARING AND AGAIN,
THE --
>> HOW DOES THAT, GETTING TO
THE PREJUDICE PRONG, HOW DOES
THAT UNDERMINE OUR CONFIDENCE
IN THE OUTCOME WHEN HE DID
ARGUE AND THE JUDGE DID FIND
TWO STATUTORY MITIGATORS THAT
ARE, MENTAL HEALTH MITIGATORS
SO VERY RELEVANT TO THE
NONSTATUTORY YOU ARGUE HE
SHOULD HAVE PRESENTED?
>> WELL, --
>> AS FAR AS THE PREJUDICE?
>> THE BROWNLEE CASE I CITE,
INDICATES, JUSTICE CANTERO, IS
IT RIGHT, CAN THIS COURT
DETERMINE THAT, THAT THE TRIAL
COURT CAN CURE THE DEFICIENCY
OF THAT DEFICIENT CLOSING
ARGUMENT?
IN OTHER WORDS, WHEN AN
ATTORNEY, ABSOLVES HIMSELF OF
ALL HIS RESPONSIBILITY TO GIVE
SOME KIND OF EXPLANATION OF THE
LAW AND THE FACTS, DURING
PENALTY PHASE, IS THE FACT THAT
UNDER OUR BIFURCATED SYSTEM,
THE JUDGE HEARD IT ALL, HE WAS
THERE IS HE KNOWS THE
NONSTATUTORIRIES.
>> MY QUESTION IS A LITTLE
DIFFERENT.
>> I THINK THAT GOES BACK, I
DON'T THINK I HEARD AN ANSWER
TO MY QUESTION WHICH WAS
ESSENTIALLY WHAT JUSTICE
CANTERO JUST ASKED, WHICH IS
YES, THERE SHOULD HAVE BEEN A
SENTENCING MEMORANDUM.
YES, PROBABLY, THERE SHOULD
HAVE BEEN ANOTHER NONSTATUTORY
MITIGATOR FOUND IN THE
SENTENCING ORDER BUT, HOW WAS
HAVING THE STATUTORY MITIGATOR,
WHICH INCORPORATES
NONSTATUTORY, HOW IS THAT,
UNDERMINE THE CONFIDENCE IN
LIGHT OFING A -- AGGRAVATOR?
S.
>> WELL REALLY --
>> YOU CAN'T TALK IN
GENERALITIES.
YOU HAVE TO SAY IN THIS CASE,
OH, MY GOD THIS IS WHAT WOULD
HAVE BEEN SHOWN WITH A GOOD
LAWYER AND A SENTENCING ORDER,
THERE IS NO WAY THE JURY WOULD
HAVE RECOMMENDED DEATH OR THE
JUDGE WOULD HAVE RECOMMENDED
DEATH IF THIS HAD BEEN ARGUED
OR PRESENTED IN THE CLOSING
ARGUMENT.
>> BUT JUSTICE PARIENTE, ALL I
CAN SAY AS BEFORE, IS NOT ONLY
DID THE ATTORNEY NOT GIVE THE
JURY ANY INDICATION ABOUT WHAT
THE LAW WAS AND THEIR DUTY WAS
WITH NONSTATUTORY MITIGATION,
HE DIDN'T GIVE THEM AN EXAMPLE
OR, WHAT HAVE YOU.
THIS JURY DID NOT HEAR WHY
CONNIE ISRAEL'S RECORD WAS BAD.

DID NOT HEAR WHY HIS CHARACTER
WAS WORSE OR, WHY THIS CRIME
WAS SO HORRIBLE, EXCEPT FROM
THE WORDS, DR.^CROFT.
WHEN AN ATTORNEY SAYS, WELL,
THERE YOU HEARD IT, I DON'T
NEED TO REPEAT IT, THAT IS NOT
THE PINNACLE OF A TRIAL.
IT IS NO THE PINNACLE OF A
DEATH PENALTY PROCEEDING.
>> SAVE SOME TIME FOR REBUTTAL.

MR.^NUNNELLEY.
>> MAY IT PLEASE THE COURT.
I'M KEN NUNNELLEY I REPRESENT
THE STATE IN THIS APPEAL.
THE, LET ME START OUT BY SAYING
I'M NOT GOING TO CONCEDE
DEFICIENT FAULT.
YOU KNOW I'M NOT GOING TO DO
THAT.
>> WHY NOT, IF THIS IS
DEFICIENT