TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

REPLY TO CLAIM I . . . . . . . . . . . . . . . . . . . . . . 1

A. INADMISSIBLE HEARSAY OF AGENT BROUGHTON . . . . . . . . 1

B. FAILURE TO ADDRESS INADMISSIBLE HEARSAY CLAIM . . . . . 5

REPLY TO CLAIM II . . . . . . . . . . . . . . . . . . . . . . 7

A. THE STATE'S REPEATED PRESENTATION OF INADMISSIBLE,

IRRELEVANT, INFLAMMATORY AND UNFAIRLY PREJUDICIAL

EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . 7

B. IMPROPER LIMITATIONS ON THE CROSS-EXAMINATION OF STATE

WITNESSES. . . . . . . . . . . . . . . . . . . . . . . . 11

C. IMPROPER JURY INSTRUCTIONS ON AGGRAVATING CIRCUMSTANCES. 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 15

Coxwell v. State,

361 So. 2d 148, 151 (Fla. 1978) . . . . . . . . . . . . 12

Lightbourne v. State,

742 So. 2d 238 (Fla. 1999) . . . . . . . . . . . . . . . . 6

Merritt v. State,

523 So. 2d 573 (Fla. 1988) . . . . . . . . . . . . . . . . 9

Parker v. State,

643 So. 2d 1032 (Fla. 1994) . . . . . . . . . . . . . . . 5

Porter v. State,

723 So. 2d 191 (Fla. 1998) . . . . . . . . . . . . . . . . 6

State v. DiGuilio,

491 So. 2d 1129, 1135 (Fla. 1986) . . . . . . . . . . . . 4

State v. Mills,

788 So. 2d 249 (Fla. 2001) . . . . . . . . . . . . . . . . 6

Stephens v. State,

748 So. 2d 1028, 1032-33 (Fla. 1999) . . . . . . . . . 1, 11

Stephens v. State,

787 So. 2d 747, 759 (Fla. 2001) . . . . . . . . . . . . . 8

Wilson v. Wainwright,

474 So. 2d 1162, 1165 (Fla. 1985) . . . . . . . . . . . . 5

Zerquera v. State,

549 So. 2d 189 (Fla. 1989) . . . . . . . . . . . . . . . 12

Respondent concedes that DEA agent Broughton was not a chemist

and did not have personal knowledge regarding the production of

methamphetamine from Thallium III Nitrate but obtained his knowledge

only "through a review of a DEA publication" (Response at 5).

Respondent nevertheless argues that Broughton's testimony regarding

the chemistry of methamphetamine production was properly admitted

(Response at 7). Throughout the Response, Respondent presents no

citations to authority establishing that Broughton's testimony was

not hearsay or met some hearsay exception.

Respondent first argues that the issue here is "whether the

trial judge abused his discretion in admitting this testimony"

(Response at 7). This is not the proper standard of review. Mr.

Trepal's claim does not involve only the improper admission of

evidence but the denial of a constitutional right--his right of

confrontation. An issue of constitutional magnitude is a mixed

So. 2d 1028, 1032-33 (Fla. 1999). Even if this claim is reviewed

under an abuse of discretion standard, it is clear that Broughton's

testimony was hearsay and that the trial court therefore abused its

discretion in admitting that testimony.

Respondent argues, "Agent Broughton was an expert in the

investigation of clandestine drug labs, and was qualified to testify

as to these matters" (Response at 7). The State made the same

argument at trial (R. 3470). However, during Broughton's proffered

testimony and during his testimony before the jury, the State never

offered Broughton as an expert in anything (See R. 3459-69, 3475-85).

The court never found Broughton to be an expert of any kind, but

simply ruled, "the testimony of Mr. Broughton . . . is admissible"

(R. 3472).

Thus, Respondent's next argument--that Broughton could rely on

the DEA pamphlet "just as an expert can rely on reference books and

materials" (Response at 7)--is untenable. Broughton was not an

expert. Even if he had experience "in the investigation of

clandestine drug labs" (Response at 7), this experience did not

translate into a knowledge of chemistry, as he himself admitted (R.

3466 ["I am not a chemist by training . . . [and] have a layman's

knowledge of the chemicals"]).

Respondent avoids the facts that the questions the State asked

Broughton were about chemistry and that the whole purpose of

Broughton's testimony was to show that Mr. Trepal had the "knowledge

and opportunity" to manufacture Thallium I Nitrate (R. 3435).

Without his testimony regarding the chemistry of methamphetamine

production, Broughton had nothing relevant to offer in the

prosecution of Mr. Trepal.

Respondent argues, "The fact that the underlying document was

deemed hearsay is not a basis for exclusion of Broughton's testimony"

(Response at 7). Respondent is referring to the fact that the trial

court ruled that the DEA publication upon which Broughton relied was

hearsay (R. 3450, 3472). Respondent does not explain this conclusory

argument. If the document was hearsay and the hearsay document was

the only source of Broughton's testimony (as Respondent concedes),

that testimony was clearly hearsay. Significantly, Respondent does

not argue that the DEA publication was not hearsay or was improperly

excluded.

Respondent concedes that "[t]he purpose of [Broughton's]

testimony was to establish Trepal's knowledge of, and access to,

thallium," but argues that "it was not necessary for Broughton to be

able to describe the chemical reactions involved in the

methamphetamine manufacturing process in order to establish the

relevance or be cross-examined on the significance of these facts"

(Response at 7). Broughton was allowed to testify based not upon his

own personal knowledge but based upon hearsay from a DEA publication.

Thus, the defense was unable to cross-examine Broughton regarding the

accuracy of his chemistry testimony. On cross-examination, Broughton

testified he was not a chemist, did not know what chemical reaction

thallium causes in the course of making P-2-P, had never performed

this process, and had never seen it performed (R. 3483, 3485). Since

Broughton was not a chemist, the defense had no way to test the

accuracy of his testimony regarding the chemical process about which

he testified and which was the whole purpose of his testimony.

Respondent argues that Mr. Trepal's confrontation right was not

violated because "the jury heard the basis of Broughton's knowledge

and could weigh that in consideration of his testimony" (Response at

7). Respondent must mean that the jury heard that Broughton's

chemistry testimony came from a DEA publication, but Respondent does

not explain how that fact assured protection of Mr. Trepal's

confrontation right. The chemistry facts which Broughton recited

were never subjected to cross-examination, because Broughton had no

personal knowledge of those facts and could not elaborate upon them.

Finally, Respondent argues, "given the other substantial

testimony in this case with regard to Trepal's knowledge of chemistry

and access to chemicals, any possible error would clearly be

harmless" (Response at 7). This summary statement does not meet

Respondent's burden of establishing harmless error. "The harmless

error test . . . places the burden on the state, as the beneficiary

of the error, to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict or, alternatively

stated, that there is no reasonable possibility that the error

contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129,

1135 (Fla. 1986).

The whole purpose of presenting Broughton's testimony was to

link Mr. Trepal to Thallium I Nitrate, which the state contended was

the chemical contained in the brown bottle found in Mr. Trepal's

garage (Q206) and in the Coke bottles found in the Carr home. From

Mr. Trepal's Rule 3.850 proceedings, it is now known that the

testimony of FBI chemist Roger Martz regarding the contents of Q206

and the Coke bottles was not true. The postconviction judge found

only a "possibility" that the bottles contained Thallium I Nitrate

(2PCR. 2680), and Martz himself admitted his results as to Q206 were

"debatable" (2PCR. 3013).

Nevertheless, at trial, the State used Broughton to link Mr.

Trepal to the Martz trial testimony. Without Broughton's chemistry

testimony, no evidence linked Mr. Trepal to Q206 or the Coke bottles.

Without Broughton's chemistry testimony, Broughton's and Warren's

highly inflammatory testimony about Mr. Trepal's involvement in an

illegal methamphetamine lab would have been irrelevant and therefore

excluded. Respondent has not shown beyond a reasonable doubt that

admission of Broughton's hearsay testimony was harmless.

Respondent argues that this issue was presented on direct

appeal and therefore should not be revisited (Response at 6). First,

Respondent argues that since appellate counsel raised the claim,

"counsel cannot have been ineffective" (Response at 6). However, as

Mr. Trepal's petition explains, on direct appeal this issue was

buried within a Williams rule issue (Petition at 13-14). Because of

this ineffective presentation, this Court addressed only the Williams

rule issue and did not address the hearsay/Confrontation Clause

issue. Appellate counsel has a duty to make an effective

presentation, which did not occur here. Wilson v. Wainwright, 474

So. 2d 1162, 1165 (Fla. 1985).

Second, Respondent argues that Parker v. State, 643 So. 2d 1032

(Fla. 1994), "provides no authority for review of previously rejected

claims that are alleged in later proceedings to have been incorrectly

resolved" (Response at 6). Contrary to Respondent's argument, Parker

does establish that this Court has jurisdiction to review claims

which were previously erroneously resolved. This is precisely what

happened in Parker. Respondent seems to believe that some other

court must find that this Court erred on direct appeal before this

Court may revisit a claim (Response at 6). However, it is of no

moment to this Court's jurisdiction that in Parker the United States

Supreme Court found this Court's previous disposition of the claim at

issue to be erroneous. This Court itself has the jurisdiction to

determine that the previous resolution of a claim was erroneous and

to revisit the claim. The Court has done so in Rule 3.850

proceedings. State v. Mills, 788 So. 2d 249 (Fla. 2001) (new

evidence required revisiting factual resolution of challenge to

override); Lightbourne v. State, 742 So. 2d 238 (Fla. 1999) (new

evidence required revisiting previous factual resolution of Brady

claim); Porter v. State, 723 So. 2d 191 (Fla. 1998) (relief granted

on judge bias claim because new evidence established that prior

factual resolution of claim was erroneous). In habeas corpus

proceedings, this Court has even broader jurisdiction than it does in

Rule 3.850 proceedings, since the Court's habeas corpus jurisdiction

derives from Florida's Constitution. Article V, sections 3(b)(1),

(7) &(9), Florida Constitution. The Court has jurisidiction to

correct a failing in its review process such as that presented here.

The State's case against Mr. Trepal depended entirely upon

"coincidences" and upon putting Mr. Trepal into "the class of people

argued in closing (See Petition at 17-18). This prosecution strategy

of "coincidences" and "class" led the State to introduce numerous

pieces of "evidence" which were never connected to the crime against

the Carr family, which were never shown to have existed at the time

of the crime, and which were no more consistent with guilt than

innocence.

Showing a profound misunderstanding of legally relevant

evidence, Respondent argues, "Trepal's argument on this issue is

completely circular: he claims that the evidence was not probative of

However, a few sentences after this argument, Respondent makes a

telling statement: "all of this testimony is seemingly innocent by

itself" (Response at 10). This is exactly Mr. Trepal's point: the

improperly admitted "evidence" was entirely innocent and was never

connected to the crime or the time of the crime, but a lay juror who

is not equipped to assess the probative worth of the evidence could

well see it as incriminating. This is the reason for rules of

evidence--to keep unreliable, unfairly prejudicial, confusing or

misleading evidence away from jurors who are not trained to assess

its value. Respondent clearly does not understand the difference

between legally relevant evidence and unfairly prejudicial,

confusing, misleading or remote evidence.

Respondent does not explain how admittedly "innocent" evidence

is probative of Mr. Trepal's guilt. Respondent's cursory discussion

of some of the evidence challenged in Mr. Trepal's petition is not

helpful. For example, Respondent asserts, "The voodoo pamphlet

Trepal prepared for the Mensa murder weekend was hauntingly similar

to a threatening note received by the Carr family prior to the

poisonings" (Response at 10). This is Respondent's sole argument

that this evidence was relevant. Respondent does not address the

poisonings and that the State never established that it existed

before the poisonings.

To be legally relevant, evidence "must have some logical

tendency to prove or disprove a fact which is of consequence to the

outcome of the case." Stephens v. State, 787 So. 2d 747, 759 (Fla.

2001). In order to have a "logical tendency to prove or disprove" a

material fact, evidence must have some connection to the commission

of the crime and cannot simply raise an incriminating innuendo. In a

circumstantial evidence case such as Mr. Trepal's, evidence must have

sufficient quality to justify reasonable inferences. Evidence such

as the voodoo pamphlet and other matters challenged in this claim

which were never shown to have existed at the time of the crime or to

be in any way connected to the Carrs does not provide the basis for

reasonable inferences.

Respondent specifically addresses only one other type of

evidence challenged in Mr. Trepal's petition, arguing, "Trepal's

knowledge of and access to chemicals and chemistry materials and

equipment demonstrated his opportunity to commit these offenses"

(Response at 10-11). Again, Respondent makes no argument regarding

the facts that the State never showed that the chemicals and

chemistry equipment found in Mr. Trepal's Sebring home had been in

Mr. Trepal's Alturas home at the time of the Carr poisonings.

Respondent makes no argument regarding the fact that none of the

chemicals found in Mr. Trepal's Sebring home was thallium. This

"evidence," unconnected in time or place to the offenses, raised only

innuendo about Mr. Trepal, but had no "logical tendency" to prove a

material fact.

Respondent misses the point of Mr. Trepal's citation to Merritt

v. State, 523 So. 2d 573 (Fla. 1988) (Response at 11; see Petition at

25). Respondent argues Merritt is inapplicable because the evidence

which Mr. Trepal challenges did not show a prior bad act (Response at

11). However, Mr. Trepal cited Merritt for the general proposition

that evidence which is no more consistent with guilt than with

innocence is not probative evidence. Merritt involved evidence of

flight as showing consciousness of guilt; Mr. Trepal's case involves

evidence of Mr. Trepal's behavior as showing consciousness of guilt

(See Petition at 23-25). The evidence of Mr. Trepal's behavior

presented as showing his "guilty mind" was no more consistent with

guilt than with innocence, and should not have been admitted.

Respondent does not address the numerous other items of

evidence challenged in this claim. Thus, Respondent has no

justification for the admission of photographs of scrapes around the

Carrs' screen door and testimony about how easy it was to open the

locked door, although the State never showed that anyone--much less

Mr. Trepal--gained illicit entry to the house through this door.

Respondent has no justification for testimony that Mr. Trepal

preferred Coca Cola, when the State never connected Mr. Trepal to the

Coke bottles in the Carr house and when Travis Carr testified that he

bought an 8-pack of Cokes days before the poisonings. Respondent has

no justification for testimony that six years before the poisonings

Mr. Trepal owned an antique bottle capper. Respondent has no

justification for testimony that a package of gloves was found in Mr.

Trepal's garage a year and a half after the poisonings. Respondent

has no justification for evidence that a roll of stamps was found in

Mr. Trepal's Sebring home a year and a half after the poisonings in

Alturas. Respondent has no justification for evidence that Diana

Mr. Trepal.

Respondent's failure to present any cogent argument justifying

admission of all the improper evidence challenged in Mr. Trepal's

petition demonstrates that the trial court abused its discretion in

admitting this evidence. Evidence which is never shown to have

existed at the time or place of the crimes and which is never

connected to the crime except by innuendo has no "logical tendency"

to prove a material fact and is therefore irrelevant.

Finally, Respondent argues that Mr. Trepal "does not identify

any frivolous issue from his direct appeal which could have been

foregone in order to raise this claim" (Response at 12). Respondent

cites no cases requiring Mr. Trepal to identify such claims. The

caselaw requires Mr. Trepal to identify omissions and show prejudice.

Mr. Trepal has identified the omission of this preserved claim from

his direct appeal and has shown prejudice--as Respondent's weak

arguments against the claim establish, the claim was meritorious and

would have prevailed on appeal.

Respondent first argues that "the limitation of crossexamination

is subject to an abuse of discretion standard" (Response

at 12). This is not the proper standard of review. Mr. Trepal's

claim involves the denial of a constitutional right--his right of

confrontation. An issue of constitutional magnitude is a mixed

So. 2d 1028, 1032-33 (Fla. 1999). Even if this claim is reviewed

under an abuse of discretion standard, it is clear that the trial

court abused its discretion in limiting cross-examination.

Regarding the limitations on the defense cross-examination of

Diana Carr, Respondent argues that the proposed questioning was

correctly found to be beyond the scope of direct examination because

Mr. Trepal has not identified any direct testimony "which either

directly or indirectly addressed any of these general subject

matters" (Response at 13). Respondent contends that Zerquera v.

State, 549 So. 2d 189 (Fla. 1989), does not support Mr. Trepal's

claim because "Zerquera simply applied the well established law that

cross-examination is appropriate on any subject matter discussed in

direct examination" (Id. at 13-14). Contrary to Respondent's

argument, Zerquera does not refer to any direct testimony of the

codefendant or investigating detective which directly or indirectly

opened the subject matter of where the bullets were found. See

Zerquera, 549 So. 2d at 192. Rather, in its discussion of the facts

giving rise to the issue, this Court pointed only to the facts that

the trial court had not allowed cross-examination regarding where the

bullets were found and that "[o]ther evidence presented by the state

implied that the bullets were Zerquera's." Id. The Court then

relied upon Coxwell v. State, 361 So. 2d 148, 151 (Fla. 1978), for

the principles that cross-examination is not limited to "specific

facts developed by the direct examination," that cross-examination

"should always be allowed relative to the details of an event . . . a

portion only of which has been testified to on direct examination,"

and that cross-examination extends "to all matters that may modify,

supplement, contradict, rebut or make clearer the facts testified to

in chief." Zerquera, 549 So. 2d at 192. Zerquera makes clear that

an issue which is part of the case is a proper subject for crossexamination.

Respondent is wrong to argue that Zerquera referred to the

state's presentation of evidence that the bullets belonged to

Zerquera only as part of the harmless error discussion and not as

part of the finding of error (Response at 14). In discussing the

facts giving rise to the error, Zerquera clearly states, "Other

evidence presented by the state implied that the bullets were

Zerquera's." Zerquera, 549 So. 2d at 192.

Respondent argues that the State's withdrawal of Diana Carr's

immunity for cross-examination or for testimony as a defense witness

was proper under the state immunity statute (Response at 14-15).

However, fundamental fairness trumps the statute, and Respondent does

not address this due process and Confrontation Clause issue.

As to the limitations on cross-examination regarding the status

of Peggy and Pye Carr's marriage, Respondent argues Mr. Trepal "cites

no authority to suggest that the admission of evidence is governed by

a defendant's view of what is fair rather than the evidence code"

(Response at 15). Mr. Trepal's argument does not depend upon his

view of what is fair, but upon caselaw from this Court and the United

States Supreme Court (See Petition at 44, citing cases). As

Respondent has not addressed the individual limitations identified in

the Petition, Mr. Trepal relies upon the discussion in the Petition.

Respondent accuses Mr. Trepal of misstating the record

regarding defense arguments on the aggravating factors (Response at

17-18). To the contrary, the Petition accurately describes the

record and provides citations. Respondent is particularly concerned

that the Petition states that trial counsel argued that "cold,

calculated and premeditated" was "vague and overbroad" (Response at

18). However, the Petition quotes a defense pre-trial motion which

argued that this aggravator "provides insufficient meaningful

standards to separate by definition such homicide from every

premeditated murder" (R. 5079-81). This is an argument that the

aggravator is vague and overbroad.

Respondent appears bothered that some of Mr. Trepal's

objections to the aggravators were contained in a pre-trial motion

(Response at 17). Pre-trial motions are a proper means of raising

objections.

For all of the reasons discussed herein and in his petition,

Mr. Trepal respectfully urges the Court to grant habeas corpus

relief.

I HEREBY CERTIFY that a true copy of the foregoing Reply has

been furnished by United States Mail, first class postage prepaid, to

Carol Dittmar, Asst. Attorney General, Department of Legal Affairs,

2002 North Lois Avenue, Suite 700, Tampa, FL 33607-2366, on April 17,

2002.

__________________

TODD G. SCHER

Florida Bar No. 0899641

Capital Collateral Regional

Counsel-South

101 N.E. 3rd Ave., Ste. 400

Fort Lauderdale, FL 33301

(954) 713-1284

Attorney for Mr. Trepal

I HEREBY CERTIFY that this brief complies with the font

requirements of rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

______________________

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Attorney for Mr. Trepal