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Ronald Lee Williams v. State of Florida
SC05-226 | SC05-1579
PLEASE BE SEATED. OKAY. REMAIN FOR THE FINAL CASE ON THE CALENDAR THIS MORNING. RON AND LEE WILLIAMS VERSUS THE STATE OF FLORIDA. MR. McDERMOTT. >> ESSENTIALLY THE ISSUES INVOLVED IN THE CASE ARE I AM SURE THE COURT HAS BACKGROUNDS OVER THE MURDER, MULTIPLE MURDER IN PENSACOLA, WHERE MR. WILLIAMS WAS ALLEGED TO BE THE LEADER OF THE GROUP FROM MIME MY, BUT NOT PRESENT DURING THE SLAYINGS. WE HAVE RAISED A NUMBER OF ISSUES PRIMARILY ADDRESSED TO THE INEFFECT OF THE ASSISTANCE OF THE COUNSEL. THE FIRST ONE THAT WE HAVE RAISED IS THAT COUNSEL AT THE TRIAL LEVEL FAILED TO ASK THE COURT FOR AN INDEPENDENT ACT INSTRUCTION. THE -- OF COURSE, WE HAVE A STANDARD INSTRUCTION NOW, BUT AT THE TIME THAT THIS TRIAL WAS HELD, THAT WAS STILL THE LAW, YOU COULD ASK FOR A STANDARD INSTRUCTION. DID HE NOT. HE DID NOT. HE CONCEDED AT THE 3850 HEARING, THAT THAT WAS THE JIST OR THE THRUST OF HIS DEFENSE, IT WAS AN INDEPENDENT ACT, THAT MR. WILLIAMS WAS NOT RESPONSIBLE AND DIDN'T INVOLVE HIMSELF IN THESE KILLINGS THAT IT WAS MORE OF A, I THINK, THE WORD USED WERE THESE PEOPLE WENT TO PENSACOLA AND SNAPPED WHEN THEY WERE TRYING TO RECOVER SOME DRUGS AND SOME DRUG MONEY. WOULD THAT BE AN INDEPENDENT ACT? >> YES, SIR. >> IT SEEMS TO ME THAT THE WAY WE CAME DOWN ON THE INDEPENDENT ACT DEFENCE WAS THAT THE CONSPIRACY TO -- WOULD HAVE BEEN TO COMMIT THE CRIMINAL ACT, BUT THEN, THERE WAS A DECISION BY THE DEFENDANT THAT WAS, THAT THE DEFENDANT WANTED TO TERMINATE THE CONSPIRACY SHORT OF THE PERFORMANCE OF THE ACTUAL CRIME WHICH -- IS THIS RECORD SUPPORT YOUR CONTENTION THAT THERE WAS AN AGREEMENT TO KILL THESE PEOPLE TO BEGIN? >> NO, WE DIDN'T AGREE TO THAT. WE AGREED THAT THERE WAS PROBABLY AN AGREEMENT TO SEND THE PEOPLE TO PENSACOLA TO GET THE DRUGS AND THE MONEY. NOT TO KILL OWN BODY. THE KILLING TOOK PLACE AS A RESULT OF THE INDEPENDENT ACT OF THESE FELLOWS, THESE LIEUTENANT SO CALLED THAT WENT TO PENSACOLA. THERE IS NOTHING IN THE EVIDENCE AND RECORD THAT I CAN DETERMINE THAT, UM -- WELL, YOU HAVE SOME CODEFENDANTS TESTIFYING THAT HE ORDERED THEM TO BE KILLED; HOWEVER, THERE IS NOTHING TO INDICATE THATS THERE WAN ANUND KERR LINING CRIME TO BE COMMITTED OTHER THAN RETRIEVE DRUGS OR RETRIEVE MONEY. THERE WAS NO SUGGESTION THAT MR. WILLIAMS WANTED THESE PEOPLE KIDNAPPED OR TORTURED. > NOTWITHSTANDING THE LACK OF THAT INSTRUCTION, WASN'T THAT ISSUE, INDEED, THE FOCUS OF THE TRIAL, IN ANY CASE, THAT IS WITH THE STATE MAINTAINING, OF COURSE -- >> YES, SIR. YES, SIR, IT WAS. >> THE ONLY THREAT OF GUILT WOULD BE THE FACT HE DID DIRECT THEM TO DO THIS. >> RIGHT. >> SO, I MEAN, WASN'T THIS ISSUE THEN IN ESSENCE FAIRLY TRIED DESPITE THE LACK OF -- >> WAS IT FAIRLY TRIED? >> RIGHT. >> WASN'T THE ISSUE FAIRLY TRIED EVEN WITHOUT THE INSTRUCTION? IN OTHER WORDS, THERE WAS NO ATTEMPT HERE BY THE STATE TO CONTEND THAT YOUR CLIENT WOULD BE GYM TY EVEN IF HE DIDN'T -- GUILTY EVEN IF HE DIDN'T DO THIS? >> NO. CLARIFY THAT IN TERMS OF THE ARGUMENT, THE CONTENTION WAS, HE ORCHESTRATED THE DEAL. THAT WAS THE STATE'S CONTENTION. HE ORCHESTRATED THE MURDERS AND THE KIDNAPPING WHICH WE SUBMIT THAT HE DID NOT. THEREFORE, THE JURY IS DEPRIVED OF THAT VERY INSTRUCTION, THE VERY LAW THAT HE DEPENDED ON TO ESTABLISH HIS INNOCENCE, THAT IT WAS AN INDEPENDENT ACT. IF YOU TAKE THAT AWAY FROM THE JURY, NO, YOU DON'T GET A FAIR TRIAL. >> WHAT EVIDENCE REALLY IS THERE AN INDEPENDENT ACT HERE? THE EVIDENCE SEEMS TO BE THAT HE NOT ONLY SENT THEM THERE TO RETRIEVE THE MONEY AND TO RETRIEVE THE DRUGS BUT THAT THERE WAS SOME LANGUAGE, I DANT L CAN'T REMEMBER THE EXACT TERMS OF IT -- >> DROP THEM. >> INTERPRET TO KILL THEM. >> DROP THEM. >> YES. >> DROP THEM. I THINK THAT IS WHAT A COUPLE OF CO-DEFENDANTS INVOLVED IN THE ACTUAL KILLING, THAT IS WHAT THEY TESTIFIED TO, OF COURSE, THEIR CREDIBILITY IS AN ISSUE. IF YOU DON'T HAVE THE INDEPENDENT ACT INSTRUCTION, THE JURY, IN FACT, THE JURY ASKED THE QUESTION ABOUT THE PRINCIPALS, YOU KNOW? >> OKAY. WE HAVE THE EVIDENCE THAT THE CODEFENDANT SAYS, THAT THERE WAS SOME INSTRUCTION ABOUT DROPPING THESE? >> YES. WHAT IS THE EVIDENCE THAT HE DID NOT GIVE THAT INSTRUCTION? >> WELL, FRASIER BROTHER, TWO OF THEM, ONE THAT WAS IN PENSACOLA, AN THE ONE THAT WAS SENT FROM MIAMI, SUPPOSEDLY ACCEPT FROM MIAMI TO GO TO PENSACOLA TO ASSIST IN THE RECOVERY, ONE OF THEM SAID, AT THE TIME OF THE INCIDENT, WE HAVE GOT OUR DRUGS. WE GOT OUR MONEY. LET'S GO. THAT IS EVIDENCE THAT THAT, THAT THE CRIME HAD BEEN COMMITTED, IF ANY, AND IT WAS OVER. IT IS DONE. >> ARE YOU GOING TO ADDRESS THE ISSUE OF COUNSEL'S COMPETENCY AND FAILING TO PRESENT MITIGATION EVIDENCE? >> YES, SIR. >> ALL RIGHT. WOULD YOU? >> I WILL DO THAT. WE FIND THAT ISSUE THIS DEALS WITH THE RESPECT. DR. LARSON'S REPORT, PSYCHOLOGICAL REPORT WAS PERFORMED BY DR. LARSON. IT IS EXTENSIVE AS TO TESTING AND IT SHOWS A LOW IQ, THE MENTAL AGE, PERHAPS, 13 TO 14 OF THE CONTRARY ARGUMENT TO THAT, WELL, HE OPERATED THIS DRUG ORGANIZATION, SO THEREFORE, HE EXHIBITED A LITTLE BIT MORE SENSE OF A 13 OR 14-YEAR-OLD WOULD; HOWEVER, THESE ITEMS WERE NOT PRESENTED TO THE JURY AND THE RECORD, THAT YOU HAVE SOME LITTLE DISCUSSION ABOUT WHAT WE HAVE THIS REPORT AND WE ARE NOT GOING TO PRECEPT IT, AND THE JUDGE ASKED THE QUESTION OF THE DEFENDANT -- YOU UNDERSTAND, YOU R GOING TO PRECEPT THAT? NO. THE REAL ISSUE WITH THE REPORT IS THE FAILURE OF COUNSEL TO GO AHEAD AND PRECEPT THAT, WE HAD RECOMMENDATION OF LIFE, OF COURSE, TO GO AHEAD AND PRESENT THAT IN THE SPENCER HEARING AFTERWARDS. OKAY? COUNSEL CANNOT -- >> SO THE -- WHAT THE CLAIM IS IS THAT IT WAS INECTIVE INEFFECTIVE TO PRECEPT THIS ADDITIONAL MITIGATION EVEN THOUGH IT HAD NOT BEEN PRESENTED TO THE JURY? >> YES, SIR. >> OKAY. SO IT IS NOT A TEETHER ISSUE. I MEAN, THE THEORY HERE IS NOT THAT THERE SHOULD HAVE BEEN, THAT THERE WOULD HAVE BEEN, THERE WAS A REASONABLE BASIS FOR THE JURY TO RECOMMEND LIFE BECAUSE THE JURY DIDN'T HAVE THIS. >> THE JURY DID NOT HAVE THAT. >> RIGHT. >> THE NUMBER ONE -- IN FACT, THIS STATEMENT THAT IS ON THE RECORD -- RIGHT. >> -- IS WHERE THE LAWYER SAID IT WASN'T GOING TO BE ADMITTED AND THE JUDGE TURNS TO YOUR CLI INT YIPT AND YOUR CLI INT SAYS, OKAY -- CLIENT, SOME WORDS TO THAT EFFECT. >> WORDS TO THAT EFFECT. >> RIGHT. >> BUT IT WAS NOT PRESENTED TO THE JURY? >> RIGHT. >> NOW I FEEL THAT HE PROBABLY SHOULD HAVE PRESENTED TO THE JURY AS WELL BECAUSE THAT GIVES THEM THE COURT IN THE SPENCER HEARING MORE GROUNDS AND MORE MITIGATION FACTORS TO UPHOLD THE LIFE RECOMMENDATION WHICH WE DID NOT. >> BESIDE THAT FROM. >> THAT WAS THE THEORY THAT THE LAWYER WAS ARGUING TO THE JURY IN THE PENALTY PHASE? WHAT WAS HIS THEORY OF WHY MR. WILLIAMS SHOULDN'T RECEIVE THE DEATH PENALTY? >> IN THE PENALTY PHASE IN FRONT OF THE JURY, HE ARGUED THAT MR. WILLIAMS WAS INVOLVED IN THIS DRUG OPERATION DIDN'T HAVE ANY REASON TO KILL THESE PEOPLE AND HE HAD A FEELING, HE SAID THERE WAS NO WAY HE FELT THAT MR. WILLIAMS COULD BE CONVICTED EVEN. HE WAS SO CONFIDENT OF THE OUTCOME. HE WOULDN'T BE CONVICTED BECAUSE HE WAS IN MIAMI. >> ALL RIGHT. >> THAT IS EVENTUALLY WHAT HE WAS ARGUING TO THE JURY. >> THERE WAS THIS EVIDENCE IN THE RECORD ABOUT THIS JACKSONVILLE SHOOTING, CORRECT? YES, SIR. >> RIGHT. HE ARGUED THAT, YOU KNOW, THERE WAS NOT ANY MURDER THERE. CORRECT? >> HE DID ARGUE THAT THERE WAS NO MURDER THERE. >> AND THAT THERE WAS A RECOGNITION BY, I MEAN, THE RECORD WAS COMPLETE WITH THE FACT THAT THERE WAS SOMETHING THAT WAS ABOUT 80,000 DOLLAR FOR A WEEK THAT WAS BEING REVENUE GENERATION? >> SIMILAR AROUND WILLING. A LARGE AMOUNT OF MONEY. >> HE WAS AHEAD OF THIS OPERATION. >> THERE WAS SOME TESTIMONY TO THAT EFFECT, YES, SIR. >> WHAT I AM HAVING TROUBLE WITH IS NORMALLY, WE'RE DEALING WITH SOMETHING THAT WHERE A COUNSEL IS INEFFECTIVE BECAUSE THEY DIDN'T PRECEPT MITIGATION TO THE JURY. >> YES. >> HERE, THE JURY RECOMMENDED LIFE. >> RIGHT. ARE SAYING THAT HE WAS INEFFECTIVE FOR FAILING TO PROVIDE THE TRIAL COURT WITH THIS BECAUSE OF THIS TRIAL COURT HAD RECEIVED IT, THE TRIAL COURT WOULD HAVE AGREED WITH LIFE, IS THAT -- >> YES. >> WELL, THEN, IF WE LOOK AT -- SO WE HAVE TO LOOK AT DOES THE FAILURE TO PRECEPT DR. LARSON'S REPORT TO THE TRIAL JUDGE UNDERMINE OUR CONFIDENCE IN THE OUTCOME OF THIS CASE? >> ABSOLUTELY. >> HOW DOES IT -- THAT IS WHAT I AM HAVING TROUBLE. IT IS SO CLEAR THAT IF YOU HAVE A MAN THAT IS UNDISPUTEDLY HEAD OF A STATEWIDE DRUG RING, HE MAY HAVE BEEN SMART ENOUGH TO THINK, WELL, I SHOULDN'T HAVE HAD THEM KILLED, BUT, I THINK, WOULDN'T THE JUDGE SORT OF LAUGH AT A REPORT THAT SAYS, HE HAS GOT A MENTAL AGE OF 13 YEARS. IS THAT THE PART YOU THINK THAT THE JUDGE WOULD HAVE -- >> WELL, NOT ONLY THAT, HE HAD THE MENTAL AGE OF 13, YEAH, I THINK THAT IS DEFINITELY -- >> ISN'T THAT -- I MEAN, WE'RE ALL HERE AS GROWN-UPS COMMON SENSE PEOPLE, IT GOES COMPLETELY CONTRARY TO THE FACTS THAT WE ARE UNCONTRADICTED, HE IS AHEAD OF THIS DRUG RING, YOU ARE ARGUING, THIS COUNSEL ARGUED, HE WAS SO SMART, WHY WOULD HE DO SOMETHING THAT WOULD UNDERCUT HIS -- WHAT IS IT DLARB 08,000 A WEEK OR SOME ABSURD AMOUNT OF MONEY HE WAS GETTING FROM THIS STATEWIDE DRUG RING. I AM HAVING TROUBLE WITH WHERE THAT PREJUDICE PREJUDICE IS IN THE CASE? WELL, THE PREJUDICE LIES IN THE FACT THAT THE COURT OVERRODE THE JURY WITHOUT HAVING THAT EVIDENCE. THE COUNSEL CANNOT -- JUST BECAUSE A JURY RECOMMENDS LIFE IMPRISONMENT CAN'T STOP OR THROW IN THE TOWEL AND JUST SUBMIT A SMALL LEGAL MEMER RANDOM IN THE SPENCER HEARING. YOU GOT TO CONTINUE TO PRECEPT MITIGATION TO THE COURT. >> WHAT WAS HIS REASON FOR NOT GIVING DR. LARSON'S REPORT TO THE COURT? >> HE SAID, HIS WORDS, THE BEST I CAN RECALL WAS, I JUST CHOSE NOT TO. HE NEVER GAVE A REASON AS TO WHY HE DIDN'T PRESENT THE REPORT. >> HE DID NOT INDICATE HE DID NOT BELIEVE THE REPORT WAS AN ACCURATE REPRESENTATION FROM HIS -- >> HE FELT -- >> CONTACT WITH THE DEFENDANT? >> AS TO THE MENTAL ISSUE, HE DID. BUT THERE IS OTHER MITIGATEORS IN THE REPORT. >> STATUTORY OR NOT STATUTORY? >> NON-STATUTORY. >> AT WHAT WEIGHT DO WE GIVE THE TRIAL COURT'S FINALING IS THIS POST-CONVICTION HEARING? IN FRANCIS, WE SAID THAT THE JUDGE WHO HEARD THE MOTION THAT HIS DETERMINATION IS ENTITLED TO CONSIDERABLE WEIGHT? YES, OF COURSE. >> WOULD YOU SPEAK TO THAT? >> THIS TRIAL COURT'S FINDING. >> YES. I HAVE A LITTLE TROUBLE WITH FRANCIS BECAUSE RIGHT ABOUT THAT TIME OR A LITTLE LATER, I BELIEVE IT SAID IN THE BRIEF, AS STEVEN'S CASE, WHICH IS ALMOST IDENTICAL TO AT THIS TIME, YET, IT WAS VINDICATION OF A TRIAL COURT -- LET'S SEE IF I HAVE THAT? >> STEVENS WAS A FAILURE TO PRESENT THE EVIDENCE TO THE JURY, NOT TO THE TRIAL JUDGE. >> WELL, IT COULD HAVE BEEN. >> THAT IS WHAT IT WAS. >> STEVEN'S OPINION. >> IT COULD HAVE BEEN. THIS JUR DRIPT GET MITIGATEORS EITHER. RIGHT. BUT BECAUSE THERE WAS A DECISION MADE YOU NOT TO PUT IT IN WHICH THE CLIENT AGREED TO. >> BUT YOU HAVE TO HAVE A REASON MOT TO. YOU HAVE TO HAVE AN UNDERSTANDING WAIVER BEFORE THE CLIENT. THERE IS NO RECORD, OWN RECORD WAIVER OTHER THAN HIM SAYING, YES,IANER STAND FOR IT TO BE PUT IN. THAT DOESN'T SHOW KNOWING INTELLIGENT WAIVER, SRNLY, IT DOESN'T MEAN THAT COUNSEL CAN THEN NOT PRECEPT MIT GITORS TO THE COURT WHETHER THERE IS STATUTORY, IN THE CASE, NOT STATUTORY MITIGATEORS. >> WELL, ACTUALLY, IT SET UP THE LAW THAT THE COUNSEL HAS GOT TO EXERCISE REASONABLE JUDGMENT. ABOUT WHAT HE KNOWS IS AVAILABLE. NOT THAT -- -- THERE IS NO RULE THAT SAYS THAT IS TO PUT IN. >> HE KNOWS WHAT IS IN THE REPORT. HE HAD THE AVAILABILITY OF THE REPORT NOT OM TO THE MENTAL ASPECT, BUT IMPOVERISHED CHILDHOOD, BEATINGS WITH AN EXTENSION CORD, PARENTS DRANK FREQUENTLY TO POINT OF IN TOX IF I QATION, ERRATIC SCHOOL HISTORY, DROPPED OUT WHEN HE WAS 16, LENGTHY DRUG ABUSE HISTORY, NOT RECKED FOR EMPLOYEEABLE, PERSONALITY DISORDER. >> HOW WOULD THOSE RELATE? ARE THOSE ARGUE LTS THAT WAS MADE BY COUNSEL? I ASSUME. WOULD THEY NOT BE CONFLICTING? >> NO. I THINK THAT HE PRESENTED A THEORY WITH HIS -- WELL, HE IS A GOOD GUY, BUT THEN IN CONTRARY, HE PRESENTS HIM AS A BAD GUY, SO HE TOOK BOTH POSITIONS IN THE TRIAL. NO, THOSE ARE NOT STATUTORY MITIGATEORS. THEY RUN THE REPORT. THERE IS AN INDICATION THAT DR. LARSON'S REPORT THAT HE WILL DISCUSS THESE FURTHER WITH HIM. THAT NEVER CAME OUT. IT WAS NEVER BROUGHT OUT. IT WAS NEVER EX PLORD. >> WERE ANY OF THE CODEFENDANTS TRIED, THE DEFENDANTS BEFORE YOUR CLIENT? >> YES. >> ALL OF THEM. >> WHAT WERE THE OUTCOMES? >> THERE WAS TIMOTHY ROBINSON, LIFE RECOMMENDATION OVERTURNED. THERE WAS GEORGE WILLIAMS OR A TIMOTHY ROBINSON, THE OTHER CODEFENDANT, I CAN'T THINK OF HIS NAME RIGHT OFFHAND, HE WAS ALSO SENTENCED, LIFE IN PRISON, RECOMMENDATION OF LIFE, OVERTURNED DEATH. >> COUNSEL WAS AWARE OF THAT? >> OH, ABSOLUTELY. YEAH. HA WAS ONE OF THE SHURBS WE RAISED ABOUT TRYING TO DISQUALIFY THE JUDGE THAT HE ENTERED EYE DENT CALL SENTENCING ORDERS. >> GOING INTO REBUTTAL SO YOU ARE AWARE IF YOU WANT TO SAVE TIME? >> OKAY. THE THIRD DEFENDANT WAS FRASIER WHO WAS SENTENCED TO OVERTURNED LIFE WAS OVERTURNED, SENTENCED TO DEATH, THEN, HE WAS -- THE SUPREME COURT RELINQUISHED THE JURISDICTION BACK TO THE TRIAL COURT. HE TESTIFIED AGAINST MR. WILLIAMS. THIS SENTENCE WAS MODIFIED TO LIFE. HIS BROTHER GOT, I THINK, 50 YEAR, SO THOSE WERE THE SENTENCES THERE. >> THANK YOU. >> ON BEHALF OF THE STATE OF FLORIDA, WILL GO AHEAD AND ADDRESS THE TWO ISSUES THAT WERE ADDRESSED EARLIER IN REVERSE ORDER. POINT OF INEFFECTIVENESS FOR FAILING TO PREVENT DR. LARSON'S REPORT AS MR. McDERMOTT POINTED OUT AN AGREED THE DEFENDANT DID SAY ON THE RECORD, HE DID NOT WANT THE REPORT PRESENTED. THAT WAS PRIOR TO, UM, THE ACTUALLY PAGE 999 THROUGH PAGE 1,000, WEIGHT IT BROUGHT OUT HE DID HAVE A CONFIDENTIAL PSYCHOLOGIST APPOINTED. >> NOW, UNDER THESE CIRCUMSTANCES,, WE SEE THAT THERE WAS HISTORY IN THIS CASE OF JURY RECOMMENDATIONS ONE WAY AND A TRIAL JUDGE GOING IN A DIFFERENT FASHION, WHY WOULD A TRIAL ATTORNEY NOT SEE THAT AND SEE THE MA SES TY FOR PUTTING INTO EVIDENCE WHATEVER THAT ATTORNEY MAY HAVE AVAILABLE PARTICULARLY THE REPORT UPPER THESE CIRCUMSTANCES,S? >> I THINK WHEN YOU LOOK AT THE REPORT, JUSTICE, IT DIDN'T HAVE THE INFORMATION, IT HAD BOTH CRIMINAL AND WHILE DR. LARSON HAD SAID, HIS IQ IS 75, HE SAID, HE THOUGHT THAT RESULTS WERE A LITTLE LOW BASED UPON THE TESTING CONDITIONS AND WHEN YOU LOOK AT THE DEFENDANT'S FUNCTIONING, YOU KNOW? HES WITH THE HEAD OF A DRUG OPERATION, UM, AND IN ADDITION, A TRIAL COUNSEL DID NOT FEEL THAT BECAUSE MR. WILLIAMS WAS IN A DIFFERENT POSTURE, HE WAS NOT ACTUALLY THE TRIGGERMAN, UM, COUNSEL FELT THAT HE WOULD NOT -- THAT THE COURT WOULD LOOK AT HIM DIFFERENTLY. AGAIN, I MEAN, HIS QLIPT DID NOT WANT THE REPORT PRESENTED, THE EVIDENCE THAT NOW IS BEING RELIED UPON IN TERMS OF IMPOVERISHED FAMILY -- ACTUALLY, IT DOESN'T SAY THE DEFENDANT WAS BEATEN, IT SAYS THE KIDS WERE BEATEN IS CONTRARY TO THE EVIDENCE THAT WAS PRESENTED DURING THE OPINION TY PHASE, HIS MOTHER TESTIFIED, THERE WERE NEIGHBORS THAT TESTIFIED AS TO HOW THIS FAMILY, YOU KNOW, IT WAS GOOD FAMILY, THERE WERE NOT PROBLEM, SO HAVING PREVENTED THIS ED, WHICH ACTUALLY WAS NOT SUBSTANCEATED, THERE WAS NO EVIDENCE DURING THE EVIDENTIARY HEARING PUT ON AS TO THE FAMILY PROBLEMS AT ALL AND THAT SHOULD HAVE BEEN THE TIME THAT IT WAS PRESENTED. >> NOW, THAT IS WHAT I WAS GOING TO ACTUALLY ASK AND I DON'T KNOW IF I SHOULD ON REBUTTAL, THIS IS NOT A SITUATION WHERE WE ARE NOW SAYING THERE WAS SUBSTANTIAL NUMBER OF WITNESSES THAT COULD HAVE TESTIFIED TO A REALLY TERRIBLE CHILDHOOD THAT WOULD HAVE BEEN OVERWHELMING MITIGATION. >> ABSOLUTELY NOT, YOUR HONOR. >> IT WAS NOT THERE? >> I AM SORRY. THERE WAS NOT ANY OF THAT TYPE OF EVIDENCE PRESENTED? >> NO, YOUR HONOR. >> DID THE DEFENDANT TESTIFY AT THE EVIDENTIARY HEARING AS TO WHY HE WOULD NOT HAVE WANTED THE DR. LARSON'S REPORT PUT INTO EVIDENCE? >> NO. HE WAS -- FROM MY RECK ELECTION HE WAS NOT ASKED OTHER THAN -- I DON'T EVEN BELIEVE HE WAS ASKED IN REGARD TO WHERE WHETHER HE DID OR DIDN'T. THE DEFENSE DID NOT PRECEPT ANY EVIDENCE DURING THE EVIDENTIARY HEARING AS TO ANY MENTAL MITIGATION, IN FACT, I THE STATE THAT PUT ON DR. LARSON AND DEFENSE COUNSEL WHEN HE CROSS-EXAMINED HIM DID NOT PUT ON ANY EVIDENCE AS TO WELL YOU HAVE WRITTEN DOWN IN YOUR REPORT THAT THE DEFENDANT HAD TOLD YOU THAT THE KIDS WERE BEATEN, CAN YOU TELL ME MORE ABOUT THAT? THERE WAS NO OTHER PSYCHOLOGIST, ANY OTHER MENTAL MITIGATION AT ALL PUT ON? >> CONTRADICTION HERE, THAT IS THAT IF THE DOCTOR IS CORRECT AND LET'S FOLLOW THIS BORDERLINE MENTALLY RETARDED AND THE OTHER THINGS THAT HE HAS IN HIS REPORT, WE'RE UK TAG ABOUT THE -- WE ARE TALKING ABOUT THE DEFENDANT LIKE THAT ACTING AS INFORMED COUNSEL IN TERMS OF MAKING JUDGMENT ABOUT ALL OF THIS THAT COUNSEL SHOULD BE MAKING JUDGMENT. COUNSEL THAT KNEW THE JUDGE HAD ALREADY, IS IT THREE CODEFENDANTS THAT THE JUDGE HAD OVERTURNED LIFE RECOMMENDATIONS? AUTOS THAT IS CORRECT, YOUR HONOR. >> SO COUNSEL CHARGED WITH KNOWING HE HAS GOT TO PRECEPT SOMETHING TO THE JURY UNDER OUR CASE LAW THAT THE JURY DID K HANG THEIR HATS ON AND IN MAKING THE LIFE RECOMMENDATION AND THEN THE JUDGE IS BARRED FROM INTERFERING WITH THAT LIFE RECOMMENDATION. >> I WOULD FIRST DISAGREE WITH THE CHARACTERIZATION THAT DR. LARSON HAD FOUND THE DEFENDANT TO BE BORDERLINE RETARDED. WELL, LET ME TAKE THE HYPOTHETICAL, LET'S ASSUME THAT COUNSEL HAD PRESENTED IT FIRST TO THE JURY, AND, THEREFORE, THE JUDGE WAS AWARE OF THAT, TOO. SURELY, YOU ARE NOT ARGUING THAT THIS LIFE RECOMMENDATION WOULD HAVE TO STAND THEN AND THAT THE JUDGE COULD NOT OVERRIDE THE LIFE RECOMMENDATION WITH THAT INFORMATION BEFORE THE JURY? ACTUALLY, I WOULD. >> I WOULD DISAGREE. YOU THINK THE JUDGE EVEN WITH THAT INFORMATION BEFORE THE JURY THAT THE JUDGE COULD STILL OVERTURN THAT LIFE RECOMMENDATION? >> IF THERE IS NO REASONABLE BASIS FOR THE JURY'S RECOMMENDATION OF LIFE, YES. >> HOW DID COUP THAT BE UNDER OUR CASE LAW? >> OH, THE COURT'S CASE LAW LOOKS AT WHAT MENTAL MITIGATION, WHAT MITIGATION THERE IS. THE COURT LOOKS AT THE STRENGTH OF THIS MITIGATION, HEAR WHAT THE COURT HAD IN FRONT OF IT WAS THE DEFENDANT WHO OPERATED -- HE WAS THE HEAD OF THE DRUG OPERATION THAT MADE BETWEEN 70 AND 90,000 A WEEK THAT HE SENT OUT, HE HAD ALL OF THESE MEN WORKING FOR THEM. >> THAT IS EVENTUALLY THE JURY'S CALL AS LONG AS THEY HAVE ANY HOOK TO HANG THEIR HAT ON. IS THAT OUR CASE LAW OR NOT? >> I THINK THE CASE LAW LOOKS AT WHETHER THEIR DECISION IS REASONABLE. NOT BELIEVE THAT FINDING AN EXPERT OPINION THAT HE IS HYPOTHETICALLY BORDERLINE MENTAL RETARDED IS A BASIS FOR, THAT IT WOULD BE IMPROPER FOR THE COURT TO OVERRIDE THE JURY'S RECOMMENDATION. >> THAT WOULD HAVE NOT BEEN ENOUGH THEN FOR THE JURY TO HAVE LOOKED AT AN TO MAKE THEIR LIFE RECOMMENDATION AND NOT REVERSIBLE BY THE JUDGE? HYPOTHETICALLY, BASED UPON THE HYPOTHETICAL, THE STATE DOES NOT BELIEVE. >> STILL SET ASIDE THE LIFE RECOMMENDATION. >> BASED UPON, THAT IS THE SOUL MITIGATION, YES, YOUR HONOR. >> TESTIFY AT THE EVIDENTIARY HEARING CONCERNING THE DECISION THAT HE MADE NOT TO PUT THIS -- >> ABC LUT RY, YOUR HONOR. >> WHAT WAS HIS TESTIMONY. >> HIS TESTIMONY WAS HE DID NOT FEEL ANYTHING IN THE REPORT THAT WAS HELPFUL. HE HAD TALKED TO DR. LARSON A NUMBER OF TIMES. THAT HE DIDN'T FEEL THAT EVIDENCE WAS GOING TO BE SUFFICIENT OR NECESSARY AND HE HAD SENT AN INVESTIGATOR DOWN TO MIAMI WHO HAD TALKED TO A NUMBER OF WITNESSES, POTENTIAL PENALTY PHASE WITNESSES, DR. LARSON'S REPORT INDICATED THAT HE HAD DONE AN EXAMINATION DURING THE EVIDENTIARY HEARING, DR. LARSON TESTIFIED HE DIDN'T NEED FURTHER TESTING. THERE WAS NEVER RAKABLE ABOUT THE MENTAL ABILITY, NOT FOUND TO BE ANY PSYCHOLOGICAL PROBLEMS AND IT WASN'T THAT HE WAS MENTALLY RETARDED, HE WAS BORDERLINE, HIS INTELLECTUAL FUNCTION WAS BORDERLINE, BUT THEN -- >> AND A NUMBER OF THESE CASES THAT WE SEE, WE WHEN YOU HAVE THESE KINDS OF REPORTS, OFTEN THE ARGUMENT IS MADE, WE ARE NOT GOING TO PUT THE REPORTS IN, WE ARE NOT GOING TO USE IT BECAUSE THERE ARE OTHER THINGS IN THESE REPORTS THAT ARE NEGATIVE AND, YOU KNOW, WOULD GO AGAINST THE DEFENDANT AS OPPOSED TO THE THING IN THE REPORT THAT WOULD BE HELPFUL TO THE DEFENDANT. BUT IT SEEMS TO ME, IN THIS REPORT, THAT REALLY ISN'T THAT KIND OF INFORMATION SO WHAT IS THE DOWNSIDE WHETHER, WHETHER IT SAYS HE IS RETARDED OR NOT, EVEN THOUGH, IT DOESN'T SAY, HE IS RETARDED. IT DOES SAY, HE HAS NO MENTAL FUNCTION, THOSE KIND OF THING, SO WHAT IS THE DOWNSIDE OF ONE USING THAT KIND OF REPORT? >> WELL, ACTUALLY, THERE WAS A DOWNSIDE BASED UPON WHAT IS INCLUDEEN HE REPORT, IT STEPS OUT HIS CRIPPLE MALL HISTORY BEGINNING WHEN HE WAS AT LEAST 16 AND HIS PENALTY PHASE EVIDENCE, HE BROUGHT IN MAYBEOR, HE BROUGHT IN FAMILY TO TESTIFY ABOUT WHAT A GOOD GUY THIS WAS. FOR THIS REPORT TO HAVE COME IN WOULD HAVE CONTRADICTED THEIR VERY TESTIMONY, SO THERE WAS DOWNSIDE TO IT AND THE FACT THAT THERE IS NOTHING IN TRIAL COUNSEL TESTIFY, THERE WAS NOTHING THAT STOOD OUT TO THAME WOULD HAVE BEEN HELPFUL HERE. THEN, ON OF IT. YOU HAVE THE EFFICIENT. >> ANY CRIMINAL HISTORY THAT WAS ALREADY PRESENTED AS PART OF THE PENALTY PHASE? >> THE STATE DID NOT PUT ON ANY FURTHER EVIDENCE AFTER THE GUILT PHASE. THEY RESTED UPON WHAT HAD BEEN PRESENTED AT THE PHASE. >> AT LEAST THE CRIMINAL INCIDENT HAD BEEN PUT IN DURING THE GUILT PHASE HAVING TO DO WITH THE SHOOTING IN JACKSONVILLE, CORRECT? >> WILLIAMS EVIDENCE. RIGHT. >> HERE YOU HAVE TESTIMONY -- I AM SORE RY. >> IT SEEM, I GUESS, THIS IS WHERE I SEE THE DOWNSIDE AN WHY I AM CONCERNED ABOUT THIS REPORT AND JUST FOLLOWING THROUGH WITH YOU WHAT SAID IS THAT IT ACTUALLY AND TOTALLY CONTRADICTED THE WITNESSES WHO TESTIFIED AT TRIAL CONCERNING HIS UPBRINGING INCLUDING WHAT HIS MOTHER HAD TO SAY, CORRECT? >> SURE. >> SO PUTTING IT BEFORE THE JURY -- HE WOULD HAVE EITHER HAD -- YOU CAN EITHER POINT TO THIS OR THAT HE DIDN'T HAVE A GOOD CHILDHOOD, SO IT WOULD HAVE REALLY PUT, IT SEEMS TO ME, IT WOULD HAVE BEEN -- THEY HAD TO YOU MAKE A CHOICE AS TO WHICH IMAGE THEY WANTED AND WHAT WITNESSES COULD BE PUTPORT. THAT IS CORRECT. THERE IS NOT A LOT OF ALLEGATION. HE LOOKED TO SEE WHAT THERE WAS AND WHAT HE CAME UP WITH WAS NOT THIS BORDERLINE INTEREEKTUAL FUNCTIONING, HE IS NOT RETARDED, AND THEN, HE HAS THE FAMILY SAYING HE IS A GAD GUY. NA IS WHAT HE CHOSE TO GO WITH. >> DOES HE RETAIN CONSELL? >> HE WASN'T RETAINED. HE WAS COURT APPOINTED. >> THE OPPORTUNITY TO FINISH ALL YOU WANTED TO SAY TO JUST IS WELL, I HAVE TWO QUESTIONS. >> I AM NOT SURE I REMEMBER THE SECOND QUESTION, I SAM SORRY. >> IF I ANSWERED ALL OF THE COURT'S QUESTIONS AS TO ISSUE 6, WILL MOVE BACK TO ISSUE 1 WHICH IS THE FAILURE TO REQUEST AN INDEPENDENT ACT INSTRUCTION. FIRST OFF, AS THIS COURT STATED ON DIRECT APPEAL. THE EVIDENCE UNEQUIVOCALLY ESTABLISHED THAT THE DEFENDANT AND THAT HE ORDERED THE MURDERS, SO CLEARLY, THE INDEPENDENT ACT INSTRUCTION DOESN'T APPLY EVEN IF YOU LOOK PAST THAT EVIDENCE, THE DEFENDANT SET INTO MOTION ACTIVITIES THAT BROUGHT ABOUT THE MURERS. IN THIS COURT SAID, THAT UNDER THOSE CIRCUMSTANCES,S, THE INDEPENDENT ACT INSTRUCTION DOES NOT APPLY. EVEN THOUGH THE INSTRUCTION WAS NOT STANDARD OFIZED AT THIS TIME, UM, THE DEFENDANT HAS NOT SHOWN THAT THE SPECIAL INSTRUCTION WOULD HAVE BEEN SUPPORTED BY THE EVIDENCE PLUS THE DEFENDANT HAD NOT ADDRESSED THE FACT THAT THE STANDARD INSTRUCTION AS TO FIRST DEGREE MURDER COVERED THE ISSUE. FIRST-DEGREE PREMEDITATED MURDER, THE DEATH CAUSED BY THE CRIMINAL AGENCY OF THE DEFENDANT, WELL, CLEARLY, THAT REQUIRES THE FINDING THAT THE DEFENDANT WAS INVOLVED, UM, WHETHER IT BE SENDING THEM OUT OR SETTING INTO MOTION THE FACTS THAT, THE CIRCUMSTANCES THAT LED TO THESE INDIVIDUAL'S DEATH. THLS THE COURT HAS ANY FURTHER QUESTION. >> THANK YOU VERY MUCH. >> THANK YOU. >> THANK YOU. >> THANK YOU. MR. McDERMOTT. >> MAY I PLEASE THE COURT, WITH REFERENCE TO THE COURT'S QUESTION ABOUT WHAT MR. WILLIAM SAID ABOUT THE REPORT, I BELIEVE, IN THE TRAN SCRIPT, HE SAID THAT THERE WAS SOME DISCUSSION WITH MR. ETHRIDGE AS APPOINTED COUNSEL, HE DIDN'T THINK IT WAS GOING TO DO ANY GOOD. DR. LARSON'S REPORT WOULDN'T DO ANY GOOD. HE DIDN'T SEE ANYTHING IN IT. I THINK, AND HIS OWN TESTIMONY WAS, THE REPORT DIDN'T HURT YOU, BUT IT DIDN'T HELP US EITHER. IF YOU LOOK AT ALL OF THE MIT GITOR, I DON'T SEE HOW YOU CAN AVOID THE FACT IT DID HELP, IT WOULD HELP. IT MUST HAVE HELPED. >> SO AT THE EVIDENCEARY HEARING FOR THE JUDGE HERE, WHAT TESTIMONY DID YOUR CLIENT GIVE AS TO THE CIRCUMSTANCES AROUND HIS CONCEPT? TO NOT REPING THE PRRP? >> TO NOT REPRESENT THE REPORT? >> WHAT DID YOUR CLIENT TESTIFY AS TO THE QUESTION OF HIS ASEEDING TO NOT PRESENTING THE REPORT? EDIDN'T RECALL. HE DIDN'T RECALL ABOUT IT. THAT IS MY BEST RECOLLECTION. HE REMEMBERED DR. LARSON DOING SOME TESTS. HE DIDN'T REMEMBER ANY DISCUSSION ABOUT IT. >> SO THERE WAS NO DISPUTE? HE DID NOT DISPUTE THAT HE CONSENTED THAT IT WAS -- >> I THINK THE STATE ATTORNEY RED SOME OF THAT TESTIMONY BACK TO HIM. HE SAID, YOU KNOW, THAT IS WHAT THE RECORD SAID, YES, THAT HAPPENED. IT WAS JUSTLY, HERE IT IS, YES. WHEN THE COUNSEL TOLD HIM. IT WOULDN'T DO ANY GOOD. I DON'T EQUATE THAT WITH AN INTELLIGENT WAIVER. >> LET ME ASK YOU, YOU SAID THERE WERE A LOT OF MITIGATEORS, I AM USUALLY THINKING UPBRINGING MITIGATEORS ARE POWERFUL, BUT THIS IS COMING IN THROUGH A REPORT THAT SAYS THE MOTHER USED TO BEAT THE KID, THE HABIT TO BEAT THE CHILDREN WITH AN EXTENSION CORD, WHEN THE BELT DIDN'T DO NO GOOD. MOTHER TESTIFIED ALT THE ORIGINAL PENALTY PHASE AN EVERYBODY SAID HE HAD A GOOD UPBRINGING. NOT BRINGING INTO THE EVIDENTIARY HEARING SUBSTANTIATING THAT THIS VERSION OF THE CHILDHOOD THAT SHOULD HAVE BEEN PUT ON, HOW DO YOU ESTABLISH THAT THESE WOULD HAVE BEEN MIT GITORS? WELL, WHAT WAS PRESENED TO THE JURY, AND ANYBODY GET SOMEBODY'S MOTHER TO SAY THEY HAD A GOOD UPBRINGING. THAT IS A FLIMSY, WEAK MITIGATING CIRCUMSTANCE AS FAR AS I AM CONCERNED TO PUT IN FRONT OF A JURY WHEN HE HAS ALREADY ADMITTED OR TRYING TO CONCEDE HE IS A BAD GUY BECAUSE HE RUNS THIS DRUG OPERATION. THEY ARE INCONSISTENT. I THINK IT POINTS OUT ALL THE MORE REASON WHY, I DON'T THINK I HAVE TO EXPLORE THAT ANY FURTHER. THESE ARE MATTERS IN DR. LARSON'S REPORT THAT MR. ETHRIDGE WAS BOUND TO EXPLORE. AND BOUND TO, BOUND TO INVESTIGATE AND BOUND TO GIVE A REASON WHY HE DID NOT PRECEPT IT. PARDON? YOU HAVE USED YOUR TIME. IF YOU WILL FINISH YOUR RESPONSE TO JUSTICE PARIENTE. >> THANK YOU BOTH FOR YOUR PRESENTATION. THE COURT WILL STAND IN RECESS UNTIL 9:00 TOMORROW MORNING. >> PLEASE RISE. 77