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Glen Edward Rogers v. State of Florida
SC05-732 | SC05-1730
PLEASE RISE.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
COURT OF THE SUPREME COURT.
PLEASE BE SEATED.
>> OK.
WE'RE READY FOR OUR NUMBER FOUR
CASE THIS MORNING, ROGERS HE
VERSUS STATE OF FLORIDA.
MR. KILEY.
>> MAY IT PLEASE THE COURT, MY
NAME IS RICHARD KILEY.
I REPRESENT GLEN ROGERS IN THIS
ACTION TODAY.
I WOULD LIKE TO ARGUE FOR IN THE
INITIAL BRIEF THE THE LOWER
COURT ERRORED IN DENYING AN
EVIDENTIARY HEARING ON
MR. ROGERS' CLAIM THAT HE WAS
DEPRIVED OF HIS RIGHT TO
RELIABLE ADVERSARIAL TESTING DUE
TO INEFFECTIVE ASSISTANCE OF
COUNSEL AT THE PENALTY PHASE OF
HIS TRIAL IN VIOLATION OF THE 5,
6, 8, 14 AMENDMENT RIGHTS UNDER
THE CONSTITUTION.
COUNSEL WAS INAPPROPRIATE TO
OBJECT DURING THE CLOSING
ARGUMENT PENALTY PHASE OF HIS
TRIAL.
ALSO WANT TO ARGUE, ARGUMENT
FIVE.
CUMULATIVELY, THE COMBINATION OF
PROCEDURAL SUBSTANTIVE ERRORS
DEPRIVED ROGERS OF A
FUNDAMENTALLY FAIR TRIAL
GUARANTEED UNDER THE 5, 6, 14th!!!!!!!!
14TH AMENDMENT HAND THE ERRORS
ON DIRECT APPEAL COMBINED WITH
THE ERRORS IN THE POST
CONVICTION PROCEEDINGS ARE
DETAILED IN CLAIM THREE OF THE
PETITION FOR WRIT OF HABEAS
CORPUS THAT I'D LIKE TO ARGUE
THEM ALSO PURSUANT TO 926
SOUTHERN 2nd, 1118.
2006.
YOUR HONOR, FIRST OF ALL, POST
CONVICTION COURT AIRED WHEN IT
DENIED THE DESERT STORM ARGUMENT
BY RELYING ON --
[INAUDIBLE]
, THAT WAS DISPLACED.
MEEKS INVOLVED CAPITAL
SENTENCING AND SYSTEMIC
EXCLUSION FROM JURY SERVICE.
TRIAL COUNSEL'S CONTENTION THAT
THE CONDEMNATION OF THE DESERT
STORM ARGUE!!!!!!!!!!!! ARGUMENT, THAT HAPPENED TO
THEM BEFORE OR PRIOR TO THE
ROGERS TRIAL, HE WOULD HAVE
OBJECTED.
NOW THAT'S A GLARING EXAMPLE OF
INEFFECTIVENESS PURSUANT TO THE
LINE OF CASES, FAILURE TO OBJECT
CASES CITED IN THE REPLY BRIEF.
THE DESERT STORM ARGUED TV NOT A
FUTURE DEVELOPMENT IN THE LAW
THAT TRIAL COUNCIL COULD NOT
ANTICIPATE, IT WAS A DEVELOPMENT
IN CURRENT EVENT.
THIS WAS AN IMPROPER ARGUMENT,
SOLELY USED TO INFLAME THE
PASSIONS AND EMOTIONS OF THE
PENALTY PHASE JURY.
>> LET'S ASSUME THAT -- FIRST OF
ALL, I AGREE WITH YOU THAT IT'S
NOT -- JUST BECAUSE IT'S A
STUPID CASE DOES NOT MEAN THAT
COUNSEL SHOULDN'T FAIL TO OBJECT99!!!!!!!!!!
OBJECT.
DON'T YOU HAVE TO SHOW SOMETHING
MORE THAN JUST I SHOULD HAVE
OBJECTED, I DIDN'T, THEREOF
UNDER STRICKLAND --
>> YES, I WOULD MAINTAIN TO THIS
COURT THAT THE MINOR CASE AS IT
CAME OUT SUBSEQUENT TO MEEKS AND
CITED IN OTHER CASES, MAKES
CHEER THAT WHEN A PROSECUTOR
SEEKS TO INJECT EMOTION, FEAR,
PERSONALIZES THE PROSECUTOR,
BOLSTER STATE WITNESSES, APPEAL
FOR SYMPATHY HORIN ANY WAY
DISTRACT THE JURY FROM
CONSIDERING THE EVIDENCE, THAT'S
IMPROPER.
>> ON THE DESERT STORM ARGUMENT,
IT'S NOT -- WE DID -- WE DID
REFERENCE THE ARGUMENT AND SAID
THE SINGLE UNOBJECTED TO
ARGUMENT DID NOT CONSTITUTE
FUNDAMENTAL ERROR AND ALSO THAT
MOST OF THE OTHER ARGUMENT
DIDN'T CONSTITUTE ERROR, MUCH
LESS FUNDAMENTAL ERROR.
LET'S GO TO THE PREJUDICE PRONG.
GIVEN WHAT THE COURT SAID ON
DIRECT APPEAL, AND GIVEN THE
EVIDENCE IN THIS CASE, HOW DOES
THIS KIND OF ACTION, THAT IS,
NOT OBJECTING TO CERTAIN CLOSING
ARGUMENT, UNDERMINE CONFIDENCE
IN THE OUTCOME, THAT IS, HOW
DOES PREJUDICE ESTABLISH --
>> JUDGE, FIRST OF ALL, THE
COURT'S OPINION ON DIRECT
APPEAL, THE OPERATIVE WORD IN
THE OPINION WAS UNOBJECTED TO.
THE SINGLE UNOBJECTED TO
COMMENT.
NOW, JUDGE, THE CONTENTION OF
THE -- OF THE TRIAL COUNSEL FOR
EXAMPLE, THAT DEN GRACIOUS OF
MITIGATION WAS -- DEN GRACIOUS
OF MITIGATION WAS FINE, IT WAS
PROPER, CLEARLY SHOWED YOU HAD
NOT READ NIBERG.
ALL THIS ARGUMENT ADDRESSED IN
RUIZ, WAS THE SAME ARGUMENT USED
IN ROGERS AND THE CASE THE COURT
CITED IN ROGERS, HAS TO BE
EXAMINED IN THE TOTALITY.
OBVIOUSLY, MR. ROGERS WAS
PREJUDICED AND I WOULD SAY THIS
COURT MUST ALSO EXAMINE THE
INTRODUCTION OF THE CALIFORNIA
MISS GLEANER AND -- DEMEANOR
ALONG WITH THE PROPER PROSECUTOR
CONDUCT IN CASE DEPRIVED ROGERS
OF A FAIR TRIAL.
>> DID THE DEFENSE ATTORNEY
TESTIFY AT THE EVIDENTIARY
HEARING AS TO WHY HE DIDN'T
OBJECT TO THE COMMENTS?
>> QUESTION!!!!!!!!!!!!!!!!!! YES.
IN REGARDS TO DESERT STORM, HE
THOUGHT IT WAS A NEW DEVELOPMENT
IN THE LAW.
WITH REGARD TO THE DEN!!!!!!!! DENIGRATATION
OF MITIGATION, HE THOUGHT IT WAS
NECESSARY AND PROPER.
>> MANY TRIAL LAWYERS SAY THEY
TRY TO BE VERY CIRCUMSPECT IN
THE NUMBER OF OBJECTIONS THAT
THEY USE, EVEN TO CLOSING
ARGUMENTS AND THINGS LIKE THAT,
BECAUSE IT CAN BACK FIRE ON YOU
IF YOU KEEP INTERRUPTING
COUNSEL'S CLOSING ARGUMENT, AN
THEY ALSO SAID, WELL SOMETIMES
THE OUT!!!!!!!! OUTRAGEOUS STATEMENT MADE
SPEAKS FOR ITSELF AND YOU DON'T
NEED TO OBJECT BECAUSE THEY
THINK IT'S GOING TO BACK FIRE ON
THE JURY, SO IT'S BETTER NOT TO
OBJECT.
SO THERE ARE A LOT OF STHEEJ I
CAN REASONS -- STRATEGIC REASONS
WHY SOMEONE WOULD NOT OBJECT TO
AN OBJECTIONABLE CLOSING
ARGUMENT.
>> INDEED THERE ARE, YOUR HONOR.
HOWEVER, THIS PARTICULAR TRIAL
ATTORNEY, DID NOT SAY ANY OF HIS
DECISIONS WERE STRATEGIC.
HE SAID, I DIDN'T KNOW, I
THOUGHT IT WAS IMPROPER.
I THOUGHT THAT DESERT STORM
ARGUMENT, IF I HAD KNOWN IT WAS
IMPROPER, I WOULD HAVE OBJECT.
HE KNEW IT WAS IMPROPER.
IT WAS NOT A NEW DEVELOPMENT IN
THE LAW.
IT WAS AN ATTEMPT TO FOCUS
SYMPATHY AWAY FROM THE CASE AND
THE EVIDENCE, AND PROJECT IT ON
TO THE DUTY F.P.L. FATHER.
>> HOW DOES THAT UNDERMINE OUR
CONFIDENCE IN THE GUILTY
VERDICT?
>> WELL, IF YOU TAKE IT
CUMULATIVELY, ALONG WITH THE
INTRODUCTION OF THE DEMEANOR AND
THERE WERE ONLY TWO AGGRAVATORS,
ROGERS DID NOT HAVE A FAIR
PENALTY PHASE.
IT WAS HIGHLY PREJUDICIAL.
FOR THE STATE TO INTRODUCE THE
CALIFORNIA DEMEANOR.
NOW I KNEW THAT TRIAL JUDGE, I
WAS HER DIVISIONAL P.D. --
>> WOULD YOU -- COULD YOU
ATTEMPT TO RESPOND TO JUSTICE
PARIENTE'S QUESTION ABOUT THE
PREJUDICE AGAIN WITHOUT
CONCLUDING THAT IT'S CLEARLY
PREJUDICIAL?
COULD YOU PROVIDE HER SOME
SUBSTANCE, SOME MEAT IN RESPONSE
TO HER QUESTION, PLEASE, SIR?
>> SHE WAS INQUIRING AS TO
WHERE'S THE PREJUDICE AND
WITHOUT THE CONCLUSION, COULD
YOU HELP HER?
COULD YOU RESPOND MORE FULLY TO
THAT?
>> I'LL TRY, YOUR HONOR.
THE PREJUDICE IS THAT BECAUSE OF
ALL OF THESE COMMENTS, IT WAS
FOCUSED AWAY UPON THE
MITIGATION -- FROM THE
MITIGATION AND ON TO THE STATE'S
CASE, AND IN PARTICULAR, ON
SOMETHING OTHER THAN THE
EVIDENCE.
I'M SAYING THAT ALL OF THIS
PURSUANT TO YOUR RULING MUST BE
LOOKED AT CUMULATIVELY.
FOR EXAMPLE, LASTLY, THE DEFENSE
ATTORNEY'S FAILURE TO OBJECT TO
THE COURT STRIKING THE MENTAL OR
EMOWINGNAL ACE!!!!!!!!!!!!!! -- EMOTIONAL DISTURBANCE
MITIGATOR, IT WAS ERROR.
NOW IN THIS CASE, YOU HAD TWO
AGGRAVATORS.
AND THEN THIS INTRODUCTION OF A
NON-STATUTORY AGGRAVATOR, THE
CALIFORNIA MISS GLEANER,
COUPLED -- DEMEANOR, COUPLED
WITH BIAS SYMPATHY INTERGEEKS,
DEPRIVED ROGERS HE WAS
PREJUDICE.
>> SO WHAT I THINK I'M HEARING
YOU SAY IS THAT IF YOU WERE
SIMPLY TO LOOK AT THE FAILURE TO
OBJECT TO THE DESERT STORM
ARGUMENT, THAT YOU WOULD AGREE
THAT THAT SINGLE UNOBJECTED TO
COMMENT WOULD NOT CONSTITUTE
PREJUDICE UNDER STRICKLAND, IS
THAT -- SINCE YOU'RE TALKING
ABOUT OTHER -- WE ASKED ABOUT
PREJUDICE AND THEN YOU WERE
TALKING ABOUT OTHER THINGS, THE
DEFENSE COUNSEL DIDN'T DO.
ARE YOU BY THAT SAYING THAT YOU
WOULD AGREE THAT IF THE ONLY
THING, IF WE LOOK THROUGH THIS
WHOLE THING, WE SAY YOU KNOW
WHAT, WE THINK THE COUNSEL
SHOULD HAVE OBJECTED, HE DIDN'T
HAVE A GOOD STRATEGIC REASON FOR
NOT OBJECTING TO DESERT STORM,
AND THEREFORE NOW LET'S GO TO
PROG DIS, WOULD YOU A --
PREJUDICE, WOULD YOU AGREE THAT
JUST ON THE BASIS OF THAT, THAT
PREJUDICE COULD NOT BE
ESTABLISHED UNDER STRICKLAND?
>> RESPECTFULLY, YOUR HONOR, I
WOULD NOT HEY GREE.
>> AND WHY -- AND WHAT IS THE
STANDARD UNDER STRICKLAND FOR
WHY A SINGLE UNOBJECTED TO
COMMENT WOULD CONSTITUTE
PREJUDICE UNDER STRICKLAND?
>> WELL THE COURT HELD IN RUIZ
THAT IT DID CONSTITUTE
PREJUDICE.
IT WAS THE SAME ARGUMENT.
>> IN RUIZ, THERE WAS A -- THERE
WAS A WHOLE PANOPLY OF ARGUMENT.
THERE WAS KNOTS ONE ARGUMENT
THAT WAS SINGLED OUT.
AND -- FOR REVERSAL.
>> AND NEITHER DID WE IN ROGERS.
>> AND WE WERE DISCUSSING
FUNDAMENTAL ERROR IN RUIZ AND IN
THIS CASE, WE'VE ALREADY
REJECTED THE ARGUMENT THAT THAT
IN CONNECTION WITH OTHER
ARGUMENTS CONSTITUTED REVERSIBLE
ERROR OR FUNDAMENTAL IRRECORD
OVER -- ERROR.
WE OBVIOUSLY CONSIDERED IT AND
REJECTED WHAT WE REVERSED ON IN
RUIZ.
>> THAT'S A DESERT STORM
ARGUMENT, BUT THE COURT DID NOT
CONSIDER THE INEFFECTIVE FAILURE
TO OBJECT TO BOLSTER OF STATE
WITNESSES, TO ALL THE OTHER
PRODUCT!!!!!!!!!!!!!!!!PROSECUTE!!IAL MISCONDUCT IN THE
GUILT PHASE OF HER ARGUMENT.
>> TELL US ABOUT THE CALIFORNIA
DEMEANOR, WHAT CHAM IS THAT OF
YOUR --
>> THAT IS STILL -- WELL, THAT'S
IN MY HABEAS, THE COURT, THE
TRIAL COURT GAVE A SCATHING
REBUKE OF MS. COX WHEN SHE
ATTEMPTED TO INTRODUCE AND DID
IN FACT INTRODUCE THE CALIFORNIA
DEMEANOR.
I WOULD CITE AS ADDITIONAL CASE
LAW NOT CITED IN MY BRIEF.
>> DID YOU PROVIDE COUNSEL WITH
COPIES OF WHATEVER YOU'RE GOING
TO PROVIDE, THAT YOU HAVE NOT
PROVIDED?
>> NO, BUT IT'S IN THE OPINION.
CASTRO V. STATE, 547, SOUTHERN
2D, 1999, AND LAWRENCE V. STATE,
614 SOUTHERN 2D, 1993.
ON THIS RECORD, WE CANNOT SAY
THE STATE HAS SHOWN BEYOND A
REASONABLE DOUBT THAT THE
SIMILAR FACT EVIDENCE OF OTHER
CRIMES DID NOT AFFECT THE
PENALTY PHASE, ESPECIALLY SINCE
THE COURT -- IN THIS CASE, THE
COURT FOUND ONLY TWO
AGGRAVATORS.
THIS ERROR COULD NOT BE CURED BY
AN INSTRUCTION FROM THE COURT TO
ESSENTIALLY UNR.N.C. THIS BELL.
-- UNRING THIS BELL.
JUDGE, PURSUANT TO DARDEN, I
ALSO CONTEND THAT SEVERAL OTHERS
TAKEN TOGETHER CAN VIOLATE A
PIGSNER'S RIGHT TO --
PETITIONER'S RIGHT TO DUE
PROCESS.
PAGE 600 SPECIFICALLY ADDRESSES
THE CUMULATIVE EFFECT OF ONE
PROSECUTE!!IAL IMPROPRIETY AFTER
ANOTHER ONE.
>> YOU'RE PROCEEDING INTO YOUR
REBUTTAL.
A YOU!!!!!!!!!!AS YOU WANT TO USE YOUR TIME,
YOU CAN DO THAT.
>> LET ME ASK ONE QUESTION
BEFORE YOU SIT DOWN FON YOUR
REBUTTAL.
THE REBUKE OF THE PROSECUTOR IN
THIS CASE, WAS ON THE RECORD?
>> OUT OF THE PRESENCE OF THE
JURY.
>> IT FULLY -- I CITED IT IN MY
BRIEF.
>> THAT WAS FULLY ON THE RECORD?
AS YOU CITED IT IN YOUR BRIEF?
>> YES.
>> OK.
>> MAY IT PLEASE THE COURT,
STEPHEN AKE ON BEHALF OF THE
STATE OF FLORIDA.
THE STATE WOULD SUBMIT THAT THE
LOWER COURT PROPERLY DENIED
CLAIM FOUR OF MR. ROGERS' POST
CONVICTION MOTION DEALING WITH
INEFFECTIVE ASSISTANCE OF
COUNSEL.
>> ON THE PREJUDICE PRONG, CASES
THAT HOLD THAT FOR CLOSING
ARGUMENTS, PREJUDICE IS EQUATED
WITH FUNDAMENTAL ERROR?
>> CORRECT.
>> CASES THAT SEEM TO SUGGEST A
DIFFERENT STANDARD.
WHAT IS YOUR VIEW THAT IF
SOMETHING IS NOT FUNDAMENTAL
ERROR, CAN IT BE PREJUDICE UNDER
STRICKLAND?
>> WELL I BELIEVE THIS COURT IN
THE CHANDLER CASE IN 2003, WHICH
I CITED IN MY BRIEF, DEALS
DIRECTLY WITH THAT, HAND IT
STATES THAT IF ON DIRECT APPEAL,
THAT THE COMMENTS DO NOT
CONSTITUTE FUNDAMENTAL ERROR,
THAT IT IS I!!!! IMPOSSIBLE TO MEET
THE PREJUDICE PRONG UNDER
STRICKLAND.
>> EVEN THOUGH THE WORDING OF
THE TWO STANDARDS ARE
DIFFERENT --
>> CORRECT.
>> THE SUGGESTION IS THAT IT
GOES FARTHER INTO A THE TRIAL
PROCESS OR POST CONVICTION,
THERE SHOULD BE A HIGHER
STANDARD.
>> CORRECT, YOUR HONOR.
I BELIEVE THE CHANDLER OPINION
IS PRETTY MUCH DIRECTLY ON
POINT, AS FAR AS BEING ANALOGOUS
TO WHAT TOOK PLACE IN BOTH THE
ROGERS AND CHANDLER CASE.
>> HE HAS RAISED THOUGH IN IN
CASE, ADDITIONAL ARGUMENTS THAT
THE COURT HADN'T CONSIDERED IN
THE DIRECT APPEAL.
>> CORRECT.
>> PRESUMABLY THEN EITHER
CONSTITUTING APPELLATE
INEFFECTIVE ASSISTANCE.
COULD YOU ENLIGHTEN US ON THOSE
OTHER COMMENTS?
>> WELL, THE COMMENTS IN THE
PENALTY PHASE CLOSING ARGUMENTS
WERE RAISED ON APPEAL.
AND WERE ADDRESSED BY THIS COURT
ON THAT DIRECT APPEAL AND THIS
COURT FOUND THAT THE COMMENTS
WERE NOT -- THEY DID NOT
CONSTITUTE ERROR, MUCH LESS
FUNDAMENTAL ERROR, SO THIS COURT
REVIEWED THE COMMENTS --
>> I THOUGHT HE HAD SOME
ADDITIONAL ONES.
>> THERE'S ONE ADILTIONNAL
COMMENT.
IN BREAKING THEM DOWN, THE ONE
COMMENT THAT WAS NOT RAISED FROM
THE PENALTY PHASE ON DIRECT
APPEAL DEALT WITH WHAT WAS
TRANSPIRING IN THE VICTIM'S MIND
THAT THERE'S A LONG BLOCK QUOTE
ABOUT WHAT WAS GOING ON WITH THE
VICTIM AT THE TIME THAT WENT TO
THE H.H.C. AGGRAVATOR.
THIS COURT UTILIZED BASICALLY
THAT TYPE OF LANGUAGE, IN
UPHOLDING THE H.H.C. AGGRAVATOR
AND THERE WAS NOTHING IMPROPER
WITH THE PROSECUTORS ARGUMENT AS
TO WHAT WAS TAKING PLACE, THAT
WAS A VALID POINT OF
CONSIDERATION FOR THE JURY IN
CONSIDERING THE H.H.C.
AGGRAVATOR, AND AS TRIAL COUNSEL
TESTIFY!!IED HE EVIDENTIARY
HEARING, HE SAW ABSOLUTELY
NOTHING WRONG WITH THE COMMENTS,
BECAUSE HE'S CORRECT, THERE WAS
NOTHING WRONG WITH THE COMMENTS,
SO HE HAD NO REASON TO OBJECT TO
THEM.
THAT WAS THE ONLY COMMENT THAT
WAS NOT RAISED ON DIRECT APPEAL,
BUT I WOULD SUBMIT THAT THIS
COURT I'M SURE WOULD HAVE STILL
CONSIDERED THAT, HAD IT BEEN
THAT OBJECTIONABLE WHEN THEY
REVIEWED THE ENTIRE CLOSING ON
DIRECT AIMMEDIATELY, BUT THE
OTHER -- DIRECT APPEAL, BUT THE
OTHER COMMENTS DEALING WITH THE
ALLEGED DENIGRATATION OF THE
MITIGATOR, THAT WAS CERTAINLY
RAISED ON DIRECT APPEAL.
AND AGAIN, THAT'S NOT AN
IMPROPER COMMENT.
BASICALLY WHAT THE PROSECUTOR
SAID IN HER CLOSING WAS THAT
BRAIN DAMAGE, THAT MR. ROGERS
ALLEGEDLY HAD WAS NOT CONNECTED
IN ANY WAY TO THIS CASE.
IT DIDN'T -- THAT HE'S A
VIOLENT, AGGRESSIVE PERSON AND
IT'S NOT CONNECTED TO THE BRAIN
DAMAGE AND DEFENSE ATTORNEY AT
THE EVIDENTIARY HEARING
TESTIFIED THAT WELL, SHE'S
RIGHT.
I COULDN'T SHOW THAT THE BRAIN
DAMAGE WAS RESPONSIBLE FOR THIS,
SO SHE HAD EVERY RIGHT TO ARGUE
THE OPPOSITE AND THAT'S WHAT SHE
HE DID.
THE OTHER COMMENT WAS THE DESERT
STORM ARGUMENT, WHICH OBVIOUSLY
THIS COURT LOOKED AT ON DIRECT
APPEAL.
AND SAID THAT IT WAS IMPROPER
BUT IT DIDN'T RISE TO THE LEVEL
OF FUNDAMENTAL ERROR AND EVEN
THIS COURT SAID ON DIRECT
AIMMEDIATELY THAT IT WOULDN'T
HAVE WARRANTED A MISTRIAL, SO
EVEN HAD THE TRIAL ATTORNEY
OBJECTED AT THAT TIME THE COURT
WOULD HAVE DENIED ANY MOTION FOR
MISTRIAL HAND THAT WOULD HAVE
BEEN AFFIRMED BY THIS COURT, SO
CLEARLY NOW HE IS NOT ABLE TO
ESTABLISH ANY PREJUDICE UNDER
STRICKLAND, BASED ON THIS
COMMENT, BECAUSE AS HAS BEEN
SHOWN, HAD COUNSEL OBJECTED TO
THAT, IT WOULD NOT HAVE RESULTED
IN ANY RELIEF AT THAT TIME.
COUNSEL ATTEMPT TO LUMP IN
ANOTHER ISSUE THAT WAS RAISED ON
DIRECT APPEAL, THESE CALIFORNIA
DEMEANORS AND THIS COURT HEY
DRESSED THAT OVER TWO OR THREE
PAGES IN ITS DIRECT APPEAL
OPINION, AND I THINK COUNSEL
RAISED IT IN HIS CUMULATIVE
CLAIM IN HIS STATE HABE I CAN'T
SAY, AND I'M NOT QUITE CLEAR HOW
HE WAS HE RAISING THAT IN A
STATE HABE HE AS, WHEN IT WAS
RAISED AS AN ISSUE BY APPELLATE
COUNSEL.
>> HOW ABOUT RAISING IT WHEN
HE'S TALKING ABOUT THE
CONSIDERATION OF CUMULATIVE
ERRORS, IN OTHER WORDS --
>> RIGHT.
>> IN THE CONTEXT, DO WE END UP
IN TERM OF THE PROSECUTOR IN
THIS CASE BEING OVER THE TOP, AS
WE DID IF RUIZ, BY LOOKING AT,
FOR INSTANCE, THE TRIAL COURT'S
SCATHING DENUNCIATION OF THE
PROSECUTOR'S USE OF THE
CALIFORNIA DEMEANOR AND THE SAME
PROSECUTOR'S USE OF DESERT
STORM, DO WE END UP WITH IN
EFFECT A RUIZ SWAYING WHEN WE
CONSIDER CUMULATIVE ERROR?
I THINK THAT'S HOW --
>> CLEARLY, THAT COULD HAVE BEEN
DONE ON DIRECT APPEAL, YOUR
HONOR.
THAT WAS THE TIME TO DO IT
BECAUSE IT WAS ALL MATTERS OF
RECORD THEN AND CONSIDERED BY
THIS COURT.
>> HOW CAN THAT HAPPEN IF THE
ERROR WAS UNOBJECTED TO, AND
THEREFORE IT WAS REJECTED ON
DIRECT APPEAL BECAUSE IT WASN'T
OBJECTED TO, AND SO NOT HAVING
BEEN OBJECTED TO OF COURSE, ON
POST CONVICTION, GONE BACK AND
SAID, WELL, THE LAWYER MADE A
SERIOUS ERROR IN NOT OBJECTING
TO THE FILING PREJUDICIAL AND
INFLAMMATORY ARGUMENT.
NOW IT'S BEEN PRESENTED IN THAT
CONTEXT, WHEN YOU LOOK AT THESE
OTHER THINGS -- HELP ME WITH WHY
THIS DOESN'T END UP BEING LIKE
THE RUIZ CASE, THAT IS, THERE
WAS ENOUGH MISCONDUCT BY THE
PROSECUTOR AS EVIDENCED BY WHAT
THE TRIAL COURT SAID ON THE
RECORD AND NOW --
>> I THINK IT'S CLEARLY
DISTINGUISHABLE FROM RUIZ.
IN THAT CASE, THE PROSECUTORS
HAD A LITANY OF IMPROPER
COMMENTS THAT THIS COURT FOUND,
THERE WERE NUMEROUS COMMENTS AND
THAT'S CERTAINLY NOT THE CASE IN
IN ONE.
IN THIS CASE, WE HAD THE
OPERATION DESERT STORM CASE,
ARGUMENT WHICH IS THE ONLY THING
THAT THIS COURTS A SAID IS
IMPROPER.
>> WHAT DID THE TRIAL JUDGE SAID
TO THIS PROSECUTOR AFTER THE
CALIFORNIA DEMEANOR EPISODE?
>> ON DIRECT APPEAL, THIS COURT
ADDRESSED THAT QUITE A BIT, AND
DISCUSSED HOW THAT DID NOT
CONSTITUTE REVERSIBLE ERROR.
>> WHAT DID THE TRIAL JUDGE SAY
TO THE PROSECUTOR IN THIS --
WHAT YOUR OPPONENT HAS
CHARACTERIZED AS A SCATHING
REBUKE?
>> HONESTLY, YOUR HONOR, I DON'T
RECALL WHAT THE PROSECUTOR SAID,
OR WHAT THE JUDGE SAID TO THE
PROSECUTOR AFTER THESE
CALIFORNIA.
>> SET OUT IN YOUR OPPONENT'S
BRIEF.
>> I'M NOT SURE WHERE IT'S SET
OUT.
I DON'T RECALL SEEING THAT, BUT
IT MAY INDEED BE IN THERE.
>> SAID IT HAPPENED?
>> I ASSUME IT MAY HAVE
HAPPENED, YOUR HONOR.
I DON'T KNOW.
>> WHETHER IT HAPPENED OR NOT?
>> I RECALL THAT IT HAPPENED.
THEY INTRODUCED THIS CRIME AND
THERE WAS SOME DEBATE OVER
WHETHER IT WAS A FELONY HORA
MISS GLEANER, AND -- OR A
DEMEANOR AND IT TURNED OUT TO BE
A DEMEANOR AND I DON'T RECALL --
A MISDEMEANOR, BUT KNOWING THE
JUDGE, SHE PROBABLY DID DO THAT,
BUT AGAIN, THIS COURT SETS OUT
IN ITS DIRECT OPINION WHAT WAS
DONE TO CURE THE ERROR AND THIS
COURT FOUND IT WAS INDEED
HARMLESS.
A NUMBER OF THINGS THAT THE JURY
WAS TOLD TO DISREGARD THAT
EVIDENCE.@U WAS INSTRUCTED, TO
DISREGARD IT AND THE STATE
DID NOT REFER TO IT IN CLOSE
ARGUMENT, AND, THERE WAS
OTHER EVIDENCE, TO ESTABLISH,
THE AGGRAVATION, SO, THIS
COURT FOUND ON DIRECT APPEAL,
THAT IT WAS HARMLESS ERROR
FOR STATE TO INTRODUCE THIS,
NOW, AGAIN, IN THE CONTEXT
OF THIS I MAY BE WRONG BUT I
BELIEVE IT IS ONLY RAISED IN
HIS STATE HABEAS IN A
CUMULATIVE ERROR, ARGUMENT,
I DON'T BELIEVE THERE IS
MUCH WRITTEN ABOUT IT.
IN HIS HABEAS PETITION BUT
OBVIOUSLY APPELLATE COUNSEL
RAISED THIS ISSUE DIRECTED
-- SO, HE CLEARLY CANNOT
SHOW THAT THAT IS CAUSE FOR
WARRANT RELIEF IN THIS CASE.
NO FURTHER QUESTIONS THE
STATE WILL ASK THAT THIS
COURT AFFIRM.
THANK YOU.
>> REBUTTAL?
>> YES, YOUR HONOR.,,
>> -- MISPLACED, CHANDLER,
SPECIFICALLY REFERRED TO
ADJECTIVES IN THE GUILT --
IMPROPER ADJECTIVES THE
COURT DETERMINED -- TERMED
TO BE ME TO BAD TASTE IN THE
ROGERS CASE WE HAVE WHOLE
ARGUMENTS, NOW --
>> THE QUESTION ON PREJUDICE,
THOUGH FOR CHROERGS ARGUMENT
WE SEE THIS A LOT WHERE,,
YOU KNOW WE EITHER THINGS OBED
TO NOT OBED TO THEN WE SAY
FUNDAMENTAL ERROR OR NOT,
THE QUESTION ON POST
CONVICTION, IS -- IS THE
STANDARD FOR PREJUDICE LOWER
THRESHOLD THAN FOR
FUNDAMENTAL ERROR.
LET'S JUST ASSUME WE HAD
WHOLE LOT OF CLOSING
ARGUMENTS THAT WERE IMPROPER
IN THIS CASE.
WHICH YOU STLAD WERE.
BUT THE COURT FINDS THAT IT
IS NOT FUNDAMENTAL ERROR,
WOULD YOU SAY THAT, AGAIN,
THAT UNDER CHAND LR, DOESN'T
THAT FORECLOSE A PREJUDICE
FINDING, AS FAR AS ANY
ACTIONS TO DEAL WITH THE
CLOSING ARGUMENT.
>> JUST -- I'M SAYING THAT
HIS -- CHANDLER IS MISPLACED
CHANDELIER WAS CONCERNED
WITH THE GUL PHASE AND IT
WAS SIMPLE ADJECTIVE --
HARMLESS, AND IMPROPER.
IN THE ROGERS CASE, YOU HAD
WHOLE ARGUMENTS, DENIGRATION
OF MITIGATION, FOR EXAMPLE --
>> AGAIN, LET ME TRY IT ONE
MORE TIME.
IF THE COURT FINDS THAT
SOMETHING IS NOT FUNDAMENTAL
ERROR WHATEVER IT IS WHEN IT
IS GUILT PHASE ARE OPENITY
PHASE, CAN THAT FORM THE
BASIS FOR FINDING PREJUDICE
UNDER STRICKLIN AFTER THE
COURT HAS ALREADY FOUND IT
NOT TO BE FUNDAMENTAL ERROR,
IN THE DIRECT APPEAL.
>> YES.
I WOULD MAINTAIN IT --
>> YOU ARE IN OTHER WORDS IT
WAS HAVING -- SYSTEM THIS HE
WE WOULD PUT IN PLACE
ALTHOUGH WE WOULDN'T REVERSE
FOR THESE ARGUMENTS ON
DIRECT APPEAL, WE COULD GIVE
A NEW TRIAL FOR THE SAME
ARGUMENTS, ON POST
CONVICTION, IF WE FIND THE
PERSON SHOULD HAVE OBJECTED.
>> YES, JUDGE, BECAUSE --
BECAUSE -- THE CRUX OF THE
MATTER IS IT NEVER BROUGHT
TO THE COURT'S ATTENTION
BECAUSE YOU -- WAS
INEFFECTIVE, BECAUSE HE WAS
INEFFECTIVE, THE COURT
COULDN'T EXAMINE THOSE
ARGUMENTS.
ESPECIALLY TAKEN CUTE LATTIVELY
TELL ME ABOUT LOOKS LIKE WE
DID GO OVER THIS MISDEMEANOR,
ARGUMENT, AND, FOUND THAT
THE JUDGE DID SUFFICIENT
CURETIVE STEPS WHAT IN THIS
CASE ARE YOU SAYING EITHER
TRIAL COUNSEL OR PAILLET
COUNSEL DID WRONG WITH
REGARD TO THE MISDEMEANOR --
>> WHAT I'M SAYING, HE
DIDN'T TAKE IT KRUM LATTIVE,
IN REGARDS TO THE OTHER
ARGUMENTS.
>> WHAT ABOUT THE FACT THAT
I WROTE ON IT.
KUM LATTIVELY.
>> I WROTE ON IT IN A
PARTIAL DISSENT, ALREADY
WHICH MEANS OBVIOUSLY THE
MAJORITY OF THE COURT DID
NOT AGREE WITH THAT
CUMULATIVE ANALYSIS THERE.
SO, INDEED HAVEN'T WE IN
EFFECT ALREADY CONSIDERED
YOUR CUMULATIVE ARGUMENT AND
REJECTED IT.
>> NO, I WOULD SUBMIT
PURSUANT TO --.
VERY THE UNITED STATES THAT
WE HAVE DEVELOPED THE
CUMULATIVE ARGUMENT AND
IMPROPER PROSECUTORIAL
COMMENT ARGUMENT
SUFFICIENTLY IN POST
CONVICTION TO JUSTIFY THIS
COURT GRANTING MR. ROGERS
NEW PENALTY FACE.
>> IS YOUR ARGUMENT EVEN
THOUGH THERE IS NOTHING THE
TRIAL COUNSEL DID WRONG,
REGARDING THE MISDEMEANOR --
TESTIMONY -- COUNSEL, AND
EVEN THOUGH THERE IS NOTHING
THAT APPELLATE COUNSEL DID
WRONG THAT IN LOOKING AT THE
WHEN OUR OFFICE IN THE OUTCOME
IS UNDERMINED, WE SHOULD
LOOK AT THAT IMPROPER --
HAVING HEARD THAT IMPROPER
TESTIMONY?
IS THAT WHAT -- GOING TO THE
PREJUDICE PRONG -- WE LOOK
AT THINGS THAT WERE HE ONOUSLY
PUT BEFORE THE JURY.
>> I WOULD SUBMIT THE COURT
SHOULD DO THAT.
NOW, YES, THE TRIAL COURT
DID NOT ABUSE ITS DISCRETION
ACCORDING TO THIS COURT,
HOWEVER, AS I SAID, IT IS
QUOTED IN MY REPLY BRIEF, I
CAN'T FIND WHICH ONE OF THEM
WHETHER PART OF HABEAS OR
INITIAL BRIEF BUT THE DID
SAY YOU BETTER COME BACK
HERE WITH A CASE THAT JUSFIES
ME GIVING THIS AS A
MISDEMEANOR YOU BETTER DO
THIS, YOU CAN SEE THE
DRIPPING SCORN SHE USE AND
THE PROSECUTOR, THE COURT
GRANTED RELIEF ON THE SAME
ARGUMENTS.
THIS WAS THE SAME ARGUMENTS,
THE SAME ETHICALLY
CHALLENGED PROSECUTION TEAM
THAT ADVANCED THESE
ARGUMENTS, THE SAME --
>> RUIZ -- THE -- ATTORNEY
FOR THE STATE SAYS IN RUIZ
WE HAVE MULTIPLE ARGUMENTS
WHERE THAT WERE IMPROPER
WHEREAS HERE, THE ARGUMENT
IS BEING MADE, THAT THE
OTHER ARGUMENTS THAT WERE
MADE BY THE PROSECUTOR THE
ONE THAT YOU ALLEGE
DENIGRATED, THE MITIGATING
MENTAL MITIGATING THAT
DENIGRATED HIS CHILD --
TRIAL WERE NOT IMPROPER
ARGUMENTS WHAT WE HAVE LEFT
IS THE DESERT STORM
ARGUEMENT AS OPPOSED TO A IN
RUIZ THERE WERE MULTIPLE
ARGUMENTS.
>> -- CONTENDED WHEN HARRY
SAID WHEN ARE WE GOING TO
STOP BLAME OUR PARENTS IF
COUNSEL HAD READED WEIBERG
THAT ADDRESS -- NYBERG
ADDRESSES SAME ISSUE USED
WHEN 14 WAS 34 WHEN HE
COMMITTED THE CRIME.
THE COURT SAID THIS COURT
SAID, THAT IS RIDICULOUS,
BECAUSE SOMEONE WHO WAS
ABUSED AT AGE 14.
WILL CARE THOSE SCARS OF
ABUSE FOR THE REST OF THEIR
LIFE EDIDN'T OBJECT TO THAT
HE DIDN'T OBJECT TO THE
IMPROPER CHARACTERIZATION OF
THE COUNSEL AS HAVING A
VIVID IMAGINATION HE DIDN'T
OBJECT TO THE EMOTION OF THE
VICTIM'S FINAL MOMENTS.
HE DIDN'T DO IT BECAUSE HE
DIDN'T KNOW IT.
HE DIDN'T READ THESE -- ALL --
>> THESE ARGUMENTS OTHER
THAN THE STATE'S ARGUMENT IS
ON DIRECT APPEAL, THIS COURT
A DEALT WITH ALL OF THE
ARGUMENTS EXCEPT THE
ARGUMENT CONCERNING THE
VICTIM WAS THINKING AND GO
TO THROUGH AT THE TIME AT
THAT THE MURDER WAS
COMMITTED DID THIS COURT NOT
-- HAVE THOSE ARGUMENTS
BEFORE IT?
>> I DON'T THINK THE COURT
DID.
I -- I DON'T THINK THE COURT
TOOK CONSIDERATION ANY OTHER
ARGUMENT EXCEPT THE DESSTORM
ARGUMENT, AND THE CALIFORNIA
MISDEMEANOR.
THAT IS WHY I --
>> SAYING THAT THOSE OTHER
ARGUMENTS WERE PRESENT OWED.
>> I'M NOT GO TO SWEAR UNDER
OATH HERE THAT MY MEMORY IS
ENTIRELY PERFECT BUT I
REMEMBER WRITEING THE
CLAIMS.
>> LET ME MAKE A --
DIFFERENT AS TO WHEN OR NOT
ALL OF THOSE ARGUMENTS THAT
HAVE ABOUT BEEN CONSIDERED
AND FOUND NOT HE AS OPPOSED
TO NOW YOU ARE SAYING ALL OF
THESE ARGUMENTS ARE IMPROPER
AND WHEN YOU LOOK AT THEM
TOGETHER YOU MAKE YOUR KRUMTIVE
ERROR ARGUMENT.
>> I'M ALSO SAYING,
SINGULARLY IN ADVOCATE --
AGGREGATE IF COUNSEL OBJECTED
TO ANY OF THESE ARGUMENTS
THIS COURT WOULD HAVE -- IT
DID NOT.
BECAUSE COUNSEL DID NOT
OBJECT TO THIS, THAT IS WHY
WE HAVE HEARING WHY DIDN'T
YOU OBJECT TO THIS WHY
DIDN'T I OBJECT TO THAT, I
DIDN'T THINK --
>> KIND OF ANSWER WE GOT
FROM HIM.
THERE WAS A CHANGE IN THE
LAW, UH I WOULD HAVE OBJECTED
TO THAT ONE.
AND IT WASN'T APPEALED TO A
MOTION IT WAS SOIM PROPER
THAT THIS COURT MENDED THIS
IS WHAT PROCEEDING
INSTITUTED AGAINST -- FOR
THE ARGUMENTS OF RUIZ AND
ARGUMENTS IN ROGERS.
>> YOU HAVE NOW EXHAUSTED
YOUR TIME -- BRING YOUR
ARGUMENT TO A CONCLUSION
PLEASE THANK YOU VERY MUCH --
-- THANK YOU VERY MUCH, YOUR
HONOR.
>> THANK YOU FOR ALL YOUR
ARGUMENTS, WE'LL TAKE THE
CASE UNDER ADVISEMENT, THANK
YOU.
>>