ÿWPCL ûÿ2BJ|xÐÐÐ °°€ ÐÐ °°è˜ Ð Ã ÃIN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIALÄ Ä Ã ÃCIRCUIT OF THE STATE OF FLORIDA, IN AND FORÄ Ä Ã ÃHILLSBOROUGH COUNTYÄ Ä Ã ÃCRIMINAL JUSTICE DIVISIONÄ Ä Ã ÃTHE STATE OF FLORIDAÄ Ä Ã Ãvs. CASE NO: 86-8931 Ä Ä Ã Ã DIVISION: "AÄ Ä" à ÃRUDOLPH HOLTON,Ä Ä Ã Ã DefendantÄ Ä. ÃÃà Ã___________________________ÄÄ Ä Ä This cause came on to be heard before the à ÃHONORABLE DANIEL L. PERRYÄ Ä, Circuit Judge, at the Hillsborough County Courthouse Annex, Tampa, Florida, on April 18, 2001, as follows: à ÃAPPEARANCESÄ Ä: Wayne Chalu, Assistant State Attorney, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State; Linda McDermott, Martin McClain and Scott Mario, Esquires, CCR - Northern Region, 1533-B Monroe Street, Tallahassee, Florida, 32301, in behalf of the defendant. à ÃCOLLEEN MERRITT, OFFICIAL COURT REPORTERÄ Ä Ã Ã 800 EAST KENNEDY BLVD., COURTHOUSE ANNEX Ä Ä Ã Ã CA-1-124, TAMPA, FLORIDA 33602Ä Ä ÃÃI N D E XÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ PROCEEDINGS ................................ 3 1 DEFENSE WITNESS - TERRY MELTON ............. 8 19 DIRECT EXAMINATION BY MR. MARIO ............ 8 19 DEFENSE WITNESS - JOE EPISCOPO ............ 37 11 DIRECT EXAMINATION BY MR. MCCLAIN ......... 37 11 DIRECT EXAMINATION BY MR. CHALU ........... 57 5 RE-DIRECT EXAMINATION BY MR. MCCLAIN ...... 67 4 DEFENSE WITNESS- SONNY FERNANDEZ .......... 69 18 DIRECT EXAMINATION BY MS. MCDERMOTT ....... 69 18 CROSS-EXAMINATION BY MR. CHALU ............ 95 15 RE-DIRECT EXAMINATION BY MS. MCDERMOTT .... 99 1 DEFENSE WITNESS - EDWARD N. WILLEY ....... 103 3 DIRECT EXAMINATION BY MR. MARIO .......... 103 3 CROSS-EXAMINATION BY MR. CHALU ........... 112 9 RE-DIRECT EXAMINATION BY MR. MARIO ....... 113 18 RE-CROSS EXAMINATION BY MR. CHALU ........ 114 13 CONCLUSION OF PROCEEDINGS ................ 115 20 CERTIFICATE OF REPORTER .................. 116 1 ÃÃE X H I B I T SÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ Defense Exhibit One - C.V. of Terry ....... 8 12 Melton Defense Conposite Two(A) - illustrations . 13 16 of DNA Defense Composite Four(A)-(E) - DNA ...... 13 16 illustrations Defense Exhibit Three - lab report ........ 29 1 Defense Exhibit 19 - notes of Sonny ...... 86 20 Fernandez Defense Exhibit 20 - deposition .......... 87 16 Defense Exhibit 22 - death certificate .... 91 2 Defense Exhibit 23 - deposition of ....... 95 2 Carrie Nelson Defense Exhibit 24 - C.V. of Dr. Willey .. 102 21 Defense Exhibits 25(A) - (F) - articles .. 108 17 à ÃP-R-O-C-E-E-D-I-N-G-SÄ Ä MS. MCDERMOTT: Your Honor, we're here on Rudolph Holton case number 86-8931 and 86-15176 and we're present for an evidentiary hearing regarding his 3.850 motion and before we start I just wanted to bring up a couple of housekeeping matters. THE COURT: Okay. MS. MCDERMOTT: The first is that I understand that one of our crucial witnesses is not going to be transported here for this hearing. THE COURT: Yeah, we couldn't get him here in time. MS. MCDERMOTT: Judge, I don't know if there is any way we can get him here by Friday but we are ready to go and we're ready to put on all our evidence and it would be helpful if we could put it all on in one shot. THE COURT: I agree with you but when we talked to the jail the problem is that one fellow is in some institution up in the Panhandle and they go to like once a week and we're not going to be able to get him here so we need to address when we can get him here and we can probably get him here next week but the problem becomes next week I don't have any time but I do have some time the 15th of May. MS. MCDERMOTT: The 15th of May is a whole month away. Is there anything before that? THE COURT: See well, the next week is a trial week and I don't have anything. MS. MCDERMOTT: The second week with the week of the 30th of April is that just a possibility? THE COURT: The 30th of April, well if it's not going to be long we can maybe do it the first of May at 1:30. MS. MCDERMOTT: That's fine. THE COURT: May one at 1:30, okay, Mr. Chalu? MR. CHALU: What day of the week is that? THE COURT: It's a Tuesday. MR. CHALU: Yes, sir. THE COURT: All right, let's do that. Get me an order to have him transported him here by the 27th and get an order done and we'll get him here by then, okay? MS. MCDERMOTT: We'll get an order for you by next week, Your Honor. THE COURT: By the end of the week at the latest, all right? MS. MCDERMOTT: And one other matter, Your Honor, we would like to invoke the rule but some of Mr. Holton's family is here and his sister and his ex-wife who is waiting outside because I asked her to step outside until I cleared this with you. They may testify only to an issue about the mark on Mr. Holton's chest and the age of those marks so I was wondering if we could make an exception for them to be in the room and remove them from the room when Dr. Willey is going to testify regarding those as an expert and again call them later and they won't have heard that testimony. THE COURT: Mr. Chalu? MR. CHALU: Judge, I don't have an objection but I do want to bring up an issue in connection with that request and that is I would like to have one of the case detectives in this case sitting with me at the table during this hearing. I know this has been done in trials quite frankly even in capital trials where detectives sit with the state attorney to assist. I think we're in a similar situation to the rule of sequestration and we can -- THE COURT: Any problem? MS. MCDERMOTT: I would to object that. That's what the State wanted to do at trial and Ms. Morgan objected and the judge sustained that objection because the detective from what I know they're talking about the key detective. He was running the investigation and Mr. Chalu represented to me that they would be calling him in rebuttal and so I don't think he should be allowed to sit through the whole -- THE COURT: Which detective? MR. CHALU: Detective Durkin, Your Honor, and I may not but it really depends on what develops during the hearing I may or may not. THE COURT: Well, I will over the defense's objection I will allow the detective to sit with you. MR. CHALU: It's not for the entire time. THE COURT: All right. MS. MCDERMOTT: All right. Your Honor, we're ready to go. Our first witness is going to be Dr. Terry Melton. THE COURT: Okay. MR. CHALU: One other matter that the State would renew its previous objections written and oral objections to the granting of certain evidentiary hearing on certain grounds that the Court has granted it on and I don't have anything other than that. THE COURT: All right, thank you, sir. MS. MCDERMOTT: I apologize, one more thing. I'm sorry, I was short on my manners. I wanted to put on the record that Mr. Holton is here present today for the evidentiary hearing and co-counsel assisting me is Scott Mario and special assistance from CCR Martin McClain. THE COURT: Okay. Raise your right hand, please, ma'am. Do you swear or affirm testimony you're about to give will be the truth, the whole truth and nothing but the truth? THE WITNESS: I do. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Terry Melton, M-E-L-T-O-N. THE COURT: You may inquire. MR. MARIO: Your Honor, my name is Scott Mario, M-A-R-I-O. THE COURT: All right. MR. MARIO: I have spoken to counsel previously and provided them with a copy of Dr. Melton's C.V. and he has agreed to stipulate she's qualified to testify as an expert in forensic mitochondrial DNA typing. THE COURT: Okay. MR. MARIO: I have a copy of the C.V. for the Court. THE COURT: All right. THE COURT: Is there a stipulation, is that correct; Mr. Chalu? MR. CHALU: That's correct, Your Honor. THE COURT: Okay, I'll find her to be an expert. Let's move on. MR. MARIO: We would admit Defense One. THE COURT: All right, Defense One. You may inquire. Whereupon, à ÃTERRY MELTONÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. MARIO: Q Ms. Melton, if you could begin by just telling us your name for record. A Terry Melton. Q And how are you employed, Dr. Melton? A I am president and CEO and laboratory director of Mitochondrial Typing Technologies in Pennsylvania. Q What type of operation is Mitochondrial Typing Techniques? A We are exclusively devoted to the forensic mitochondrial testing. Q And what sort of cases would you do? A Well, we have a wide range of cases primarily our cases are criminal cases. We do type missing persons kind of investigations. We also look at related questions, um, people who are forensically related. Occasionally we'll do historical exams for state government cases of investigations. We do a range of different cases. Q How did you come to begin that company? A Well, I did my PHD at Penn State and the year of my PHD research in mitochondria DNA population genetics as specialized to using mitochondrial DNA forensic marker so that the origin of my experience using mitochondrial DNA while I was at Penn State I did some forensic case work as well. Q So how long have you been using mitochondrial type technology then? A Two and a half years. Q Does any work that you do for them involve referrals from the FBI? A Yes, the FBI has exclusively a large back log of cases. They're one to two years backlogged so in a mitochondrial DNA it's done quickly so they'll refer people to my lab or laboratories as an overflow facility. Q Now you just stated a few moments ago that you graduated from Penn State? A Yes. Q And did you specialize in any particular field at Penn State? A Well, my PHD is in genetics and in the specific area of population genetics of mitochondrial DNA as a forensic marker. Q You received your degree, since you received your degree have you authored or published any publications? A During the time I was working on my PHD and since I've published in the neighborhood of eight to ten articles in purely review publications. Some that are out there for example forensic articles. I have four articles in the American Journal. I have two articles and I have a couple of things in press with the Association of Medical Journal and I have recently co-authored an article in identity and entry of mitochondrial DNA for the Institute of Forensic Sciences. Q Do you sometimes give presentations as well? A Yes. Q What type and where? A Well, I have given nearly every year for about the last four or five years a talk at the American Academy of Science meeting and recently presented at the Promega (phonetic) Seminars on human identification. I have been an invited speaker at several professional meetings. I've been invited to speak for the Department of Justice and done a number of talks in fact. Q As your job, Doctor, were you often called into court to testify about the results of your DNA testing? A Yes. Q Can you estimate how many times? A I would say between ten and fifteen times. I don't know exactly how many. Q And of those what percentage of cases approximately were you to testify in behalf of the prosecution versus defense? A It's about two thirds prosecution and about a third defense. Q Has mitochondrial DNA typing as a science been accepted in courts? A Yes, it has. Q Do you know about how many cases? A My understanding is that within the United States there are approximately again three states that have used it in courtrooms. Not all those states have been through admissibility hearings but a large number of them have. Q To your knowledge has several of them accepted been here in Florida in the Thirteenth Judicial Circuit here? A Yes, I believe it was accepted in a case the FBI and I did two or three years ago the Bolin case I believe. Q That's Oscar Ray Bolin? A Yes. MR. MARIO: Well, I think at this point the State has stipulated Dr. Melton in your qualifications as an expert in the field so if the Court -- THE COURT: I found her to be. BY MR. MARIO: Q Um, let's move on then to mitochondrial DNA type in general. Have you brought some examples or illustrations with you today? A Yes. Q Would that aid you in your testimony to the Court? A Yes, they will and I might ask for a pen or something to point with so it's a little easier. MR. MARIO: I have also given a set of these illustrations to opposing counsel previous and I would like to mark them and admit them into the record. THE COURT: All right. MR. MARIO: As a composite exhibit. MR. CHALU: No objection, Your Honor. THE COURT: All right, it'll be so received. MR. CHALU: Are those composite exhibits? THE COURT: Composite Number Two. MR. MARIO: Two (A), Four (A) through (E.) THE COURT: All right. BY MR. MARIO: Q Doctor, begin by explaining to us what mitochondrial DNA is. A Yes, I'm going to use this as an example for you and I'm sure you have a lot of DNA in your courtroom and the justice system and DNA is really considered to be rather complex but actually it's easy to understand. You probably have heard it described in legal terms and in fact it looks like coiled snakes if you actually look they're uncoiled it would look like a ladder with rails and rungs of a chemical basis connecting them up to each other through certain ways in which these basically connect up to DNA pairs with GFA is always paired with "T." These are base pairing rules. So what we know when you have a sequence of clarified basis on one side we can infer we have it on the other side. This is the same for any kind of DNA. I'm going to talk specifically about mitochondrial DNA but this applies to nuclear DNA as well. Q Let me just stop you for a second and just could you please explain mitochondrial DNA as contrast to nuclear DNA? A I'm going to spend a lot of time on that. So it's the actual order of these basis along this rail of the ladder information contact or what I want to say it's information contact so for example the order here is TGCA, GCTG. Now with respect to nuclear DNA their DNA the DNA of every individual in the world is considered unique. That's with the exception of identical twins. It will be different when we come to talk about mitochondrial DNA but in fact because there's informational contents if we take in order and switch the order around informational contents of a different person for certain regions of nuclear DNA. It's like a telephone number. If you take the numbers in your telephone number and switch them around you'll definitely have a phone number for some other person. So the kind of DNA you normally hear about in court is nuclear DNA the kind that is given to us by our mother and our father. It's the reason for our chromosomes. We have 46 chromosomes or two sets of 23 chromosomes, 23 pairs. Nuclear DNA found in the nucleus the middle of the cell and it has the same structure as other kinds of DNA and the type I'm talking about if you separate that into different parts of the cell. The part or type of DNA I'm talking about is mitochondrial DNA. It's actually found outside the nucleus in the cytoplasm or the kind of fluid that is around the nucleus in the or nucleus called mitochondrial. Mitochondrial are like little power houses of energy for the cell. They involve every cellular representation they use for energy for the cell and it turns out they have their very own DNA molecules. And in spite of the fact that there are only two types of DNA in the cell the nucleus, in the mitochondrial even in mitochondrial we have ten to hundred copies of mitochondrial DNA and the cell itself can have hundreds to thousands copies of mitochondrial DNA and so within the mitochondria is the mitochondrial DNA. Now specifically and it's actually a closed circular molecule. It has 16,569 pairs of those ACTAG and those line up exactly the way they were in mitochondrial DNA circular molecule in between there's these billions of basis pairs of molecular DNA molecules and we have again 16,000 pairs of DNA. This is the part we're interested in is actually the end of the small molecule called the control region. Now it turns out in 1981 scientists actually went in and sequence or determined the order of ACTAG and every position in one person. They wrote a paper on that sequence and it's called the Anderson Reference Sequence. It's a bench mark to which all the sequences are now determined and compared with. And in the region down here it turns out to be extremely visible among people so if you choose any two people at random from a population the chance they will have the same type is very, very low. In fact a high amount concentrated in the two regions called high variable region or LF1 region could have two and again when we do the analysis if we look at the order of these ACTAG in their region of the two parts of the control region so I will go on if you want me to explain how we do the test? Q Okay, well, let me just stop you before you get into that part. What are the forensic uses of mitochondrial testing? A Well, it tends to be very useful in cases where nuclear DNA isn't available because there are only two copies nuclear DNA where a cell has a thousand copies of mitochondrial DNA a fact when obtained mitochondrial DNA substantially shed hairs or deal with general hairs that has no roots. So that mitochondrial even without a root a you can get a mitochondrial DNA profile. It's also very useful for skeletal remains which if they have been in a very difficult environment, physical situation say they have been buried in a very hot and humid environment or they have been in various elements if you will then you can get mitochondrial DNA so it's an alternative way to do DNA and information on samples that you would not have gotten through DNA testing. Q Sounds like you're talking about skeletal remains, hairs, things of that element? A That's right. Q How about pieces of evidence if hair is exposed to fire would that effect the ability to determine a DNA profile? A Not necessarily, it depends on of course the amount of fire and whether the hair is chard or you can't tell by looking at a hair whether or not it would have been effected by the heat. Q Well, why don't you tell us the procedure for DNA typing? A The procedure for DNA type, mitochondrial DNA is similar to that use for nuclear DNA testing. The only exception is that at the end of the analysis -- I'll come back to that point. The very first step of any DNA test is to extract, you know, to take the DNA out of the sample the hair, the blood, the bone and purify it away from all other things that are the tissues, the cell wall, anything encompassed in there. When you're finished with the extraction process you end with effectively just pure DNA by itself. The second step is called PCL application and this particular technique is being used now especially all over the world to generate a larger amount of DNA from very small number of starting copies. It's largely a photocopy procedure. You lay your DNA tube with some copies and you run it through a machine and when you raise or lower the temperature it allows the different enzymes to copy to take the DNA and to produce multiple copies. The machine makes a number of copies of every generation so after 30 generations and multiple copies of something you may start out with only 100 copies are out. So extraction then PLC is the second stage. Q Are those stages is any different from what is done in conventional DNA typing? A PFPL and RFLP, STR, other DNA methods used P.R.C. in fact so you end up with multiple copies of your molecules from your starting extracted product and the final stage is slightly different. With mitochondrial DNA ultimately you're going to be determining the exact order of those copied basis and those two regions TV1 and TV2 and you're going to learn what sequence is for that sample for those two regions and that's done in a sequence in the laboratory and it is also based on the principle of PCR where you label these copies, these many copies with your residue and that is done in sequence in the machine. Q Dr. Melton, you used the term sequence basis. What did you do with that, what does that tell you? A Well, we have at the conclusion of our test in our laboratory we have a sequence of 783 is the basis in those two regions together. We determine the order basis in question, sequence or question sample and then we want to compare something to it obviously so we have to go to a sample known of the individual and we do exactly the same thing all over again and develop a profile or a sequence on a known sample then we compare the two together. Q Can you tell us what inclusion is, exclusion is what is the difference between those two concepts? A Yes, inclusion which also is called failure to exclude means that you have to found identical every one of those positions that you compared between the two samples. So in other words you're saying that you cannot exclude the possibility that this sample came from that person and there's one point I forgot to bring out a very important point with respect to mitochondrial DNA. Mitochondrial DNA is led from mother to offspring in fact so the children of the same mother will actually have the same type or similar type, similar type of the mother and so forth. Now, in following the DNA path down from both parents to the children is something called recombination occurs and that can alter the, alter the sequences in the different children so different children don't match either the sample pattern but in mitochondrial DNA all children from the same family with the same type of mitochondrial DNA and that's not necessity in nuclear DNA. Q So if you have a particular sample of DNA, mitochondrial DNA matches another sample that doesn't necessarily mean that is from the same person it can be a relative is that what you're -- A That's correct, yes. Q But what if two samples don't match and there's some components different among them, could you explain what that means? A That would be called exclusion and what that means when you find two or more differences in those 783 base pairs between two samples you have to say that sample did come from that person and that's based on studies in a lot of laboratories where they have to look at 1,000, if thousands or more offspring comparisons or taking samples from individuals and comparing them with a known individual to show that. It is always transmitted from mother to offspring and that most tissue in the body are the same so if you see two are different you say we exclude this person as the contributor of the sample. Q Now is the procedure outline discussed was the mother to your -- A Well, effectively the final part of mitochondrial DNA test when you have a failure to exclude or a match or inclusion whatever you want to call it you have to understand how rare or unusual this type is. Obviously if we know they are from the same type this would not be a useful marker for forensic testing. So we have to use what is known as a standard and how many times we have seen this type before and that gives us an idea of the relative region in the population. What we do is we take this find and we observe and we go look at a large data base on that we use that is actually maintained by the FBI and we search that data base for the type we observed in the match and that gives us an idea of how common or rare the type is. Q That applies if you're trying to match or make a failure or exclusion? A That's right, it gives you information about how much that failure is to exclude is obviously a case where there is no match comes into play at all and you know for sure this person did not leave the sample. Q Is that procedure then is the standard procedure that is used for mitochondrial DNA typing? A Yes, it is. Q There are procedures that the laboratory follows? A Yes. Q Could you explain to us a little bit of what sort of quality control procedure is in place to get an accurate result and not have contamination or things of that nature? A Well, contamination of course is always an issue in a DNA laboratory just like mitochondrial DNA laboratories but there is a lot of effort that goes into protecting the integrity of the sample during the time of the testing so that you are sure that the type gotten from the sample is implemented to that and still what came from some other source. So we certainly at our laboratory are always thinking about that and preventing it and one of the first things we do which we think is very important is we always process our questioned samples first. These samples that usually take very minimal DNA in them and take care of those first. What we in fact do those one at a time in laboratory sequence. Those are taken and carried in a separate room from the known samples which in most liklihood is what has a lot of DNA in them so we take the samples first and we run a number of controls with our samples to be sure that what the sample is in association to the sample and we of course have a sort of clean room environment. We wear gloves and we put on a second pair of gloves when we actually are working with the tubes. We are cloaked with face masks. We work under bio-hazard hoods which are cleaned between samples, ultraviolet lights and we make sure those are clean and our surfaces and we have a lot of disposable equipment. We have reagents or chemicals for tests that are designated for these different chemical samples so really there's a long list of the sort of precautionary procedures we use. Q Is there some type of testing procedure or something you could verify that your consistent results are an accurate result? A Well, in terms of for this particular case? Q Well, just in general within the laboratory period a particular test of some sort? A Well, we do utilize a bureau of testing through the College of American Pathologist and they send us a set of mock up case work samples and we test those. We actually test two kits and do the testing and duplicate it and send the results in and then they inform us if your results are correct so we do that kind of thing on twice a year basis. Q What sort of track record do you have on that testing? A Well, we have taken the test five times and so every six months two and a half years we have finished five tests, um, in the three tests we have scored and sent back we got 100% correct. The one that is presently we have done we have information that we have gotten the right answer. We haven't gotten a formal result and the fifth test we just took so we don't know yet. Q What is the American Society of Crime Lab Directors? A Well, that is a body of individuals that have taken it upon themselves to inspect and create a different kind of forensic laboratories. It's actually a rather rigorous procedure. They not only come to the laboratories in the area for DNA but they accredit in the area of tool market, questionable documents, fingerprints and so forth and the DNA is one of the very large portion and what they do is they come into your lab and you have to make sure you have been following the guidelines that have been set up by the adversary board and then their own set of guidelines that are designed to ensure quality control of your testing. Q Have you all been accredited by them? A Yes, we were accredited in February of this year. Q And is this something that's easily, have many laboratories been accredited? A Well, there is a trend in forensic laboratories wanting to be accredited and it's actually not mandatory at this point. It's voluntary and more and more laboratories are moving towards being accredited but it's a very rigorous procedure and it took us, well when we set up our laboratory with the idea we wanted to be accredited so we have been following those kind of guidelines since the very first day but the inspection is very rigorous and it takes two days to come in and look at everything, every nook and cranny of your lab. So it is something you don't undertake lightly. It's a rather formal process. Q Do you know how many labs world wide have been accredited in mitochondrial DNA typing? A There are five now including us. Q Do you know offhand a few of the other ones might be? A FBI Mitochondrial Unit is accredited at this time. The Arm Forces Laboratory which does investigation of the skeletal remains use of mitochondrial DNA is accredited. Lab Core in North Carolina, Rely Core in Louisiana and then us. Q Doctor, were you asked to do mitochondrial DNA testing in this case? A Yes, I was. Q And how did that come about specifically? A Well, Ms. McDermott contacted me and asked me if I would be able to test some hair evidence in this case. MR. MARIO: Okay, at this time, Your Honor, opposing counsel has agreed to stipulate that to chain of custody and I have the stipulation which I've previously shown to Mr. Chalu and would like to read it for the record. THE COURT: All right, go ahead. MR. MARIO: The hair evidence recovered from the victim's mouth as well as some sample from the's hair both has been maintained by the Tampa Police Department since 1986 were sent to Terry Melton and received by her on September 13th, 2000. Sample of Mr. Holton's blood obtained by the Department of Corrections pursuant to this Court's order was sent to Dr. Melton and received by her on September 11th, 2000. THE COURT: Okay. BY MR. MARIO: Q Now, Doctor, once you received those materials what did you do? A Well, as I recall we received Mr. Holton's blood sample first and we stored that in our known laboratory evidence and locked it up because it was one sample that had a lot of DNA in it. We did not open that sample until after we had completed testing the three questioned hairs. I believe we did his sample last. We did the victim's known hair after the three questioned hairs. So we tested the three hairs. Initially I believe we did sort of a six -- I'm not sure of the order of the other two. We did come to a result on all three of those hairs. Then we did known hair from I believe the victim's pubic hair and then we did Mr. Holton's blood sample. MR. MARIO: I have a copy here of the lab report prepared in connection with this case and I've shown it to opposing counsel and I'd like to have this marked as Defense Exhibit Three and introduced. THE COURT: Okay, Mr. Chalu, any objection? MR. CHALU: No, Your Honor. THE COURT: It will be so received Defense Exhibit Number Three. BY MR. MARIO: Q Dr. Melton, do you have a copy of your reports with you? A Yes, I do. Q Referring to and we have a copy but tell us what the results were of your testing examination of the hair and blood evidence you received? A Yes, there was actually two results overall. The first one was that Mr. Holton's mitochondrial DNA type is exclusively different from the type obtained from these hairs. There were not a match. In that case we were able to clearly exclude him as a contributor to those three hairs. Q Respectfully what exactly do you mean? A Well, we are required two different DNA sequence to make an exclusion. There are seventeen differences so there is no question there is an exclusion in this situation. Q How many differences would you generally observe between two unrelated individuals? A Well, depending on the population that you're looking at. You can select two Caucasian individuals and look at their profiles and on average you can see about eight differences. If you look at an African American person's you can see about 14 differences on average between them. Q So seventeen differences in this case then is there any question that the hair that was found in the victim's mouth you testified to did not belong to Rudolph Holton? A No question. Q And is that an opinion within a reasonable degree of scientific certainty? A Yes. Q Did you also compare the questioned hair with each other? A Yes, we did. Q And what were the results of that finding and in fact let me refer you to page two of your report which is now Defense Exhibit Number Three in evidence. And there's a chart that appears at the bottom if you could explain to the Court that may help illustrate what you're talking about. A Well, the chart is a shortened way of showing what the differences are in the samples from that Anderson Reference sequence that is the standard published reference sequence. Q First line up is their standard is that what you're referring to? A That's correct, the Anderson Reference Sequence at a particular position in the numbered boxes above so in other words we don't have to show all 783 basis. We only have to show those positions that in which the sample differed from the standard reference. Q So across the top here there are many excerpts from the strands of DNA? A That's correct. Q So it's almost like you line up each of these standards of DNA down here to this, side by side and you can compare at the different positions what base appears? A Yes, and what we found was that in each of the three questioned hairs were the same or had the same type so they effectively matched each other at every single position suggesting that there was one contributor of all three hairs. Obviously since mitochondrial DNA is a unique identifier the possibility of possibly multiple contributors but all three hairs are the same and do match each other. They do also match the type they obtained from the pubic hair of the victim. So their identical again in every position all 783 basis between the three questioned hairs and her known sample. Q This type that you observed both questioned hairs and the known sample from the victim how common is that type of hair in the general population? How often do you see that type? A Well, certainly the data base for that I have given before observed that type in data base. Q How large is that data base? A It is 4,142 sequence at this point. Q Was there anything else about the DNA profile that you observed in those hairs that you thought significant? A Yes, in fact there is some rather interesting about all four of the samples. There's a con let has that is defined as a situation where a person has more than one type of mitochondria DNA in their bodies and it's a rather rare phenomenon but in this case both of those, all three hairs and the victim held has three at position 152 and so what that means is effectively all those three samples plus the pubic hair from the population molecules one class has T1 population, has a "T" position 152. The other population has a "C" position 152 and all three of those hairs and known to cite lastly because one is at one position so that is effectively a rare occurrence and that now occurred in four separate samples so it actually is a strange match by some unique factor and can't put a number of it but it's rather an unusual thing to see that. Q So in reality then the three hairs and the victim's hair are from the victim although we can't say certainly because of the fact of the mitochondrial DNA is materially erroneous under that sense? A That's correct. Q You could say those originated either from the victim or even a relative of the victim? A Yes. Q And there is no question that these hairs did not originate from Rudolph Holton? A No question. Q And are those opinions based on a reasonable degree of scientific certainty? A Yes. MR. MARIO: I have no other questions at this time, Your Honor. THE COURT: Mr. Chalu, any questions? MR. CHALU: No, Your Honor, I don't have any questions of Dr. Melton. THE COURT: We need her any further? Can she be excused? MS. MCDERMOTT: She can be excused and she stay in the courtroom from this point on? THE COURT: Do you have a problem with her staying in the courtroom, Mr. Chalu, if she's not going to testify any more? MR. CHALU: No problem with that. THE COURT: Thank you, you're free to stay and watch if you would like. MS. MCDERMOTT: At this point in time I don't see him out there. I just anticipated this would take a little longer. THE COURT: You got anybody else out there? MS. MCDERMOTT: I'll see if somebody else is here, Your Honor. THE COURT: It's going to take longer than three days if you don't have any witnesses to call. MS. MCDERMOTT: Your Honor, I would like to introduce this exhibit and we're asking the Court to take judicial notice of a response filed in the Wayne Tompkins case regarding and filing the response in opposition of the motion for DNA testing of evidence and I would like to introduce that actually as Defense Exhibit Number Four if there is no objection. THE COURT: For what purpose? MR. CHALU: Judge, I'm not sure what the relevancy of that is. The objection is filed by the State of Florida and it's a different case and it has nothing to do with this case. THE COURT: What is the purpose? MS. MCDERMOTT: It's the same authority that prosecuted Mr. Holton and in their response they indicate that in Mr. Holton's case there's representations made as to the hair evidence and that is why the state attorney needed to do the testing and that's important that it's the same authority that has asserted this misrepresentation in Mr. Holton's case and I think it's very important. THE COURT: What kind of misrepresentation? MS. MCDERMOTT: Well, Judge, if I can explain a little bit further in closing arguments Mr. Episcopo told the jury that there was no way these hairs could be from the victim because they were classified as transitional body hairs so they couldn't have been her own hairs so he indicated that the only possible source of those hairs was Mr. Holton or, you know, you know, thought could include other individuals but he made it very clear those would not be the victim's hair and clearly told that and that was a misrepresentation to the jury and that is the authority on the Wayne Tompkins' case. MR. CHALU: Judge, I don't see the relevance. The record in this case will speak for itself and if this is in fact what Mr. Episcopo said that's already in the record. I don't understand why the attorney general's argument in an unrelated case has anything to do with -- THE COURT: I don't think it does either but you can put them into evidence but I don't think it has any relevance, any relevance but I'll admit it. MS. MCDERMOTT: Thank you, Your Honor. THE COURT: Okay. MS. MCDERMOTT: Defense Exhibit Number Four. THE COURT: We ready? We have Mr. Episcopo now? MR. MCCLAIN: Yes. THE COURT: Mr. Episcopo, if you'd step up here and have a seat in the witness chair, please, sir. THE WITNESS: Yes, Your Honor. THE COURT: Go ahead and have a seat. If you'd raise your right hand, please, sir. Do you swear or affirm testimony you're about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: I do. THE COURT: State your name for the record and spell your last name, please. THE WITNESS: Joe Episcopo, E-P-I-S-C-O-P-O. THE COURT: You may inquire. Whereupon, JOE EPISCOPO, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä MR. MCCLAIN: Thank you, Your Honor. Um, can I stand up? THE COURT: Sure. BY MR. MCCLAIN: Q Mr. Episcopo, are you familiar with Rudolph Holton? A Yes, I am. Q Can you explain how you are familiar with him? A I was the assistant state attorney assigned to prosecute his case in December of 1986. Q And so you would have been the prosecutor at his capital trial that resulted in this sentence of death? A Yes. Q For the record I'm going to hand you exhibit number five and let me show Mr. Chalu and ask you if you first of all recognize the handwriting? A Yes, I do, that's my handwriting. Q And just perhaps to help everyone understand there are no transcript of the opening statements in this case but does this appear to be your handwritten notes to help you in making that opening statement? A Yes, this is my handwritten notes of my opening statement. Q So presumably that's what you would have argued and obviously it's shorthand it's not everything you would argue in the statement the argument but it sort of covers the points you would be making? A Yes, I do recall it. Q Okay. Um, now in Mr. Holton's case do you recall a witness by the name of Flemnie Burkins? A Yes, I do. Q And do you recall who he was? A He was a jail house informant who stated to have taken a confession from the defendant Mr. Holton. Q Do you recall calling him as a witness to testify regarding that in Mr. Holton's trial? A Yes, I do. Q I'm going to hand you what has been marked as Exhibit Number Six and let me show Mr. Chalu. I'm -- it's actually state exhibit which is from actually Mr. Burkins' court file and it appears to be a handwritten request for probation by Mr. Burkins and essentially I want to ask you if you can recall or if you are familiar with that or had that or disclosed that to defense counsel? A I don't recall seeing this. I really don't. Q And just also for the record do you recall who was defense counsel in Mr. Holton's case? A Mina Morgan, court appointed. Q Right. Um, while I hand you Exhibit Number Seven, Exhibit Number seven appears to be an FDLE rap sheet regarding Flemnie Burkins and I think if you check on the last page it indicates cc to the state attorney's office? A Yes, I see that. Q I think on the first page it also indicates the date of the print out? A November 29th, '86. Q And if the report shows the trial of Mr. Holton the trial started December first of 1986 that would have been before the start of the trial, correct? A Yes. Q Do you recall having that rap sheet at this point in time or -- A I really don't because his case was in a different division than mine. Q Right, but of course do you recall whether you would have disclosed that to Ms. Morgan Mr. Burkins' criminal history in connection with his testimony in the Holton case? A Well, yeah, if we had disclosed, I mean, it would be if they probably asked for it I guess. Q Showing you exhibit number ten next which was the exhibit number ten I believe is the transcript of the sentencing proceedings in Mr. Burkins' case. First of all looking at that do you recall being present for that sentencing proceeding? A I don't but looking at it I was and my name is on here having appeared. Q Okay, so you would know, you recall well, let me back up. You were at that sentencing proceeding of Mr. Burkins; is that correct? A No, I remember Julie Hineman (phonetic) assistant state attorney and apparently that was her case. Q Okay. Well, do you know the date of that sentencing proceeding? A Yes, this is the date December 19th, 1986 after the trial. Q So it would have been after Mr. Burkins' trial? A Correct. Q Do you recall -- MR. CHALU: Excuse me, sir, do you mean you said Mr. Burkins' trial. BY MR. MCCLAIN: Q The Holton trial, I'm sorry. A I meant after Mr. Holton's trial I'm sorry. Q And going through that if it helps your memory as to the proceedings do you recall that at Mr. Burkins' sentencing it came out that in fact under the score sheet he was looking at nine to twelve years? A Yes. Q Um, and was that at the time news to you? A Yes. Q Do you recall Mr. Holton's trial any discussions with reference to what you thought the score sheet had been in Mr. Burkins' case? A Yeah, I was using Mr. Burkins' calculations of three and a half to four and a half years. He took three, to three years that was what was in my mind at the time of the trial of Mr. Holton. Q Okay but in Mr. Burkins' point of view that would indicate he received greater consideration, did you realize at that time Mr. Burkins' point of view that was great consideration? A Had great consideration about what? Q The sentence that he would be receiving a three year sentence and the sentence guidelines were nine to twelve? A Yes, obviously that was to his benefit. Q And I'm going to hand you exhibit number nine which actually I believe is the score sheet for Mr. Burkins and I don't know if at this point in time looking at that refreshes your recollection? A Well, it's not my handwriting I can tell you that. Q That does reflect nine to twelve; is that correct? A Yes, this exhibit number nine reflects a guidelines sentence of nine to twelve years on case number 86-8003 Flemnie Burkins. Q So under the sentencing guidelines he was looking nine to twelve years but received three years? A I thought he already had three years before, before that. Q Right, but it's clear this sentencing actually indicated that it happened on December 19th, 1986, correct, that's the transcript that you have? A The transcript does, yes. Q Do you know how much time, well, actually the transcript speaks for itself as to who appeared -- A Yes. Q In December? A I'm just reading what was said to refresh my memory. Q And also complete on the back it makes reference to Flemnie Burkins case number and I believe is the PSI which would have been part of the proceedings. I don't know if you have any independent recollection of any of this or simply relying on what the record from those proceedings show but it's pretty clear that he received substantially less than nine to twelve? A Yeah, I notice in here that the transcript that I mentioned that transcript which is exhibit ten that I had provided in the PSI exhibit eight to Ms. Morgan and it was available at the trial when he testified and the record was made known to the jury in that case. Q Okay, did Ms. Morgan ever figure out on the sentencing guidelines that Flemnie Burkins was nine to twelve years under the score sheet? A Pardon me? Q Do you know whether Ms. Morgan ever figured out looking at his criminal history that really he was facing nine to twelve years? A No, you would have to ask her that. Q Okay, and obviously the record will speak for itself as to what the jury was told when Mr. Burkins testified? A Yeah. Q If I can have those back and give them to the clerk. Just one last exhibit eleven. This is actually the judgment and sentence in Mr. Burkins' case which reflects that in fact he received three years and is that consistent with your recollection? A Well, again I would say I have no independent recollection. I would have to look at the document and -- Q Apparently you were at the sentencing? A Yes, the transcript indicates that I was and it's dated December 19th of 1986 and it says that he was placed on a period of three years following community control, well, whatever it says speaks for itself. Q Okay. Now Mr. Holton's trial did Ms. Morgan seem to be prepared satisfactorily in behalf of Mr. Holton? A Yes, I don't know whether I can comment on that. MR. CHALU: Objection that as far as to when counsel rendering an opinion as to the performance of counsel. THE COURT: I'll sustain the objection. BY MR. MCCLAIN: Q Well, for the record, Your Honor, I would like to proffer that when I spoke to Mr. Episcopo earlier he indicated to me he thought she seemed somewhat lack luster was the phrase. A She lacked passion. Q Lacked passion. A Then again some people are passionate and some aren't. MR. MCCLAIN: Okay. THE COURT: They can never say that about you, Mr. Episcopo. Go ahead. BY MR. MCCLAIN: Q Now, exhibit number twelve this was in the state attorney's file number two notice of taking depositions and I hand you them to you, two and three and on the second page there are some handwritten notes. Is that where you are like writing? A Yes, that looks like my writing. Q So those would be notes you'd be taking during the deposition; are you able to tell? A I don't know because, you know, it says here three years Evans, see he had been sentenced on October 3rd of '86 to three years. Q Well, I know and he was re-sentenced on the 9th of December, see that? A Yes, I see but what I'm saying I actually, the record shows from that proceeding this would have been a plea agreement on October 3rd. Q The third and the sentence actually didn't happen until December 19th after the trial? A That would be the truth. Q Okay, but specifically actually what I was going to ask you the handwritten notation with the name Wiley Simmons there. Do you have any memory of why that name is there or what it means? A No, I don't. Q You indicate 47 years old. A Yeah, 47 years of age. Q So it's just obviously that information came to you and you wrote it down and at this point in time you don't remember why? A No, I don't. Q Okay. A Did plead, pled in August see that? Q Yes, and but there's well, there's, Wiley Simmons and Burkins and it's not clear what necessarily or who this is referring to is that right or can you tell from reading your notes? A Are you referring to what's in there? Q Yeah? A I would think it was. Q Burkins? A Burkins. Q Okay. A That's all about him on here. Q Except for the name Wiley Simmons is actually above his name? A I don't know, no, I don't know why that's in there. Q Fair enough. Now in the course of Mr. Holton's case do you recall the defense having making a contention that Katrina Grant -- A I think the victim was Katrina Graddy. Q Graddy, I'm sorry, do you recall the defense presenting any information or had information which would have been in addition a report of the fact that Katrina Graddy had been raped by someone else prior to the murder? A I don't recall. If it's in the transcript I can refresh my memory. Q Just give me a moment here. Um, seeing two motions that Ms. Morgan filed that appears in the record one at 817 and one at 823 and calling your attention -- MR. CHALU: Judge, excuse me, is counsel using those documents to refresh the witness' recollection? MR. MCCLAIN: That's, yeah. MR. CHALU: They're not marked as evidence right now. MR. MCCLAIN: That's correct since they're already in the record and they're also part of record on appeal. A Where do you see 817? Q It's the page number of the record. A Okay. Q And 824. A Let me read it. Q There's a motion in the file by Ms. Morgan in the Holton case. Reviewing that does that refresh your recollection? A Motion for continuous. Q Right, there's a motion for additional costs of investigation for in a paragraph here and this paragraph over here this is reference to, um, victim Katrina Graddy having been raped by Pine? A Investigator Sonny Fernandez was the investigator I guess for some more money. Q Right because she wanted to investigate this matter but I'm just presenting it to you to refresh your recollection as to -- does it reflect your recollection to the extent that the defense had been arguing that there had been a rape of the victim? A Yes, she was seeking a continuous for that and other reasons. Q So you were alerted to the fact that the defense was investigating the possibility that a person who may have raped Katrina Graddy may have been involved in her death? A Yes, I was, there was one motion I was present for this motion. Q Well, I'm assuming you were present because you were the lead prosecutor on the case. A Well, really the way it worked back then we had a homicide division and Mr. Benito was in charge of it. Q Correct. A And what they would do is they would look at how many homicide cases and then say well, we're going to send one back to Division "A" and the case would sometimes come to me after they had another attorney doing the prep work and I would take them to trial and that's how I recall doing a lot of the cases I did. I didn't take them to the grand jury. Q Okay. A Or anything like that. I didn't get them at intake. That was done in the homicide division. Q Okay, see my question actually goes towards if you had any information of this police report regarding such a rape given the information that is these motions obviously you would think as a prosecutor you would disclose that to the defense? A Well, sure if they asked for discovery we would give it. Q Okay. I'm going to provide you with exhibit number thirteen, exhibit number fourteen and these I believe are clearly police reports and if you need just a moment just to sort of familiarize yourself and on, I recognize that these copies are a little bit, not the best but that's the best we have and as long you don't mind perhaps if I may help if I can point some things out. For example the identify of the victim of sexual battery and then there is a birth date over here at the name of the sexual battery Katrina Grant as Katrina Graddy and then if you go to the next line there it indicates that there was a suspect she claims that had sexually assaulted her? A In June of '86. Q June of '86, June 13th is that a 13? A That's what it looks like. Q '86 which would have been ten days before the homicide in this case; if you recall? A I don't recall the exact date but -- Q And in here in this report the suspect's name as David Pearson? A Correct. Q And I think if you read further it indicates that when he talked to them he gave them the name of Donald Smith? A I believe. Q Let me ask you this. If you knew this information, is this something that if you had you would have disclosed to the defense given the position of the defense that she had been sexually assaulted sometime prior to the homicide? A There was, could be a connection. I mean it's a different name and -- Q Same first name, last name with a "G", one Grant and one Grandy? A And the -- Q Birth date are a match? A The facts of this case are not the facts of the Holton case. Q Correct, but defense contends that Katrina had been raped by a man ten days before her death and that the man may have been the perpetrator of the homicide and in this police report the fact she reported it to the police and the fact in the police report she made allegations which certainly puts a connection to know that she claims she had been raped by him certainly would be evidence that perhaps could have helped, I mean it corroborates the defense but what I want to point out is did you know about that? Did you have that police report? A I don't remember. I have no idea. Q If you had, had this police report is that the kind of thing you would have disclosed? A Well, obviously she would have asked for it, right? Q In this situation, correct? A Well, sure. Q Okay. A Why not? Q But at this point in time you have no recollection of having that police report? A Or her asking for it. Q Okay, and the other report just so you have a chance to look? A That was thirteen. Q Thirteen the other one is fourteen obstruction by disguise or false identity. I believe if you look at this you will see this says David Pearson and it's because he gave a false name when he was being investigated for a sexual battery? A Yes, it appears that there's an obstruction by disguise or identity. Q Again at this point you have no memory of this document? A No, I don't remember any of this stuff. Q Okay. Mr. Episcopo, do you recall in Mr. Holton's case a black bag or -- A Shaving bag, yes. Q That was sort of a significant item? A It was, yeah, it was in a car of somebody that had given him a ride to the crime scene area. Q Okay, and in fact it was taken into evidence? A Yes, it was. Q I'm going to hand you exhibit fifteen and sixteen. I'll hand you fifteen first. I'm, I'm going to call your attention to sixteen. A If I can look at the context here. Q And calling your attention to page six which shows reference black pouch leather pouch. Again this is one of the things I'm not sure since you weren't the prosecutor but do you remember whether there was mentioned -- A It was -- Q No knowledge of the fact in David Pearson -- A Allen Nelson. Q -- right, he's the prosecutor for David Pearson the individual that was identified in the other police report in obstructing the police officer but in deposition the description of David Pearson having been in possession of a black pouch or leather pouch. If this was any information that had ever been made it may -- if you recall knowing about that person? A No, no way, it's just a bit vague. Q Okay. And showing you exhibit number sixteen a police report regarding the same matter which is dated January 14th of 1986, was reference to his observing a black brown leather pouch? A Just for clarification let me tell you when these cases would come to us the discovery generally before was provided by the homicide division. Q Okay. A Okay, and we didn't have to deal with a lot of the, depositions maybe but actually sending out discovery most of that had been done before. Q Already been done? A You know, they would hand us this big file and we would say, okay another case they don't want to try that kind of thing and you just dig in and get ready. Q Right. A Usually a couple months before the trial so all of this discovery Mr. Benito would give out everything. He never held anything back. Q Right. A I sometimes thought he gave out too much. Q Okay. A And/or Mr. Ober would have been the other assistant in the division other than Mr. Benito. Q This case was in front of Judge Coe; was it not? A Mr. Holton's case was. This case here on this David Pearson yeah, Division "A" I guess in there too but it's Allen Nelson's case and he was I guess one of the assistants in there and I was the division chief over -- Q Um, but you don't recall it ever coming to your attention or to your knowledge when prosecuting Mr. Holton that David Pearson was also known to carry that sort of black pouch kind of thing? A No, no, they don't, they called it a shaving kit in here. Q Right. A I remember a kit, shaving kit. Q You had that in evidence in Mr. Holton's case, correct? A Yeah, I believe it was. I think there was a picture of it. Q Right. A If they were talking about a leather pouch I will tell you even if I saw it, I couldn't connect it. MR. MCCLAIN: Okay, Your Honor, I have no further questions. THE COURT: Any questions, Mr. Chalu? MR. CHALU: Yes, Your Honor, I have a few. THE COURT: Go ahead. MR. CHALU: Counsel, are you using the items in evidence? MR. MCCLAIN: Yes, I'm sorry. THE COURT: Any objection, Mr. Chalu? MR. CHALU: No, Your Honor. THE COURT: They'll be so received. MR. CHALU: Where are they located? THE COURT: The clerk has them. à ÃDIRECT EXAMINATIONÄ Ä BY MR. CHALU: Q Mr. Episcopo, let me show you what has been identified as Defense Exhibit Number Six and I'll ask that you examine that for a second and I'll have a few questions for you. A Yes, okay, I've looked it over. Q All right, sir. Where in that exhibit six for the defense does that say that he's asking the judge for a break because he's going to be a witness in a murder trial? A No, that's dated August of '96 too so -- Q And -- A It may have been bought to my attention at that time. Q All right, the trial was in December of '86; was it not? A Yes. Q Another one is there anywhere in there where he's asking for a break from Judge Evans because he's going to be a state witness in a murder trial? A No. Q Okay. Let me show you what's been received into evidence as State's Exhibit Number Seven. Do you recognize that, sir? You previously identified that as a rap sheet of Flemnie Burkins? A Yes, apparently it is. Q Back in '96 were rap sheets generally discoverable and sent in specific motions in order -- A You mean '86? Q Yes, sir. A I don't recall. Q Okay, in any event do you recall if you supplied this to Ms. Morgan? A I don't know. Q Okay. A If it was asked for I would have given it to her. Again I would think that. Q If she asked? A The homicide division probably would have done that. Q Is the giver? A Well, yes of course especially a witness that was testifying for the defense. Q Were you responsible for the prosecution of Flemnie Burkins at the state attorney at that time? A No, I was not. He was in another division. Q All right, sir. Let me show you what has been marked and received into evidence as State's Exhibit Number Nine. Bear with me for a minute and let me find it for you. THE COURT: State's Exhibit Number Nine, you mean Defense? BY MR. CHALU: Q Defense number nine, thank you, Your Honor and you previously identified that as a score sheet apparently done in the Flemnie Burkins case, correct? A Yeah, it says that Julie Hineman was the one that filled this in. Q All right, is this a prepared score sheet done by you? A No, that's not my handwriting. Q All right. That was prepared by Hineman apparently the assistant state attorney assigned to his case? A Yes. Q All right. Sir, let me ask you this. Are you aware of a prior score sheet that may have been prepared on Mr. Burkins' case on an earlier date? A No, I don't. Q Would it refresh your memory or recollection if I were to show you the state attorney's file in Mr. Burkins' case? A I don't know, it might, it might not. Q Mr. Episcopo, do you recall ever making Mr. Burkins a specific plea offer in exchange for testimony against Rudolph Holton? A No, there wasn't. One thing I recall he didn't ask for anything. We didn't, he wasn't offered anything. Q If there would have been a three year offer in Mr. Burkins' case that was not made by you, correct? A No, there was no deal for his testimony and he wasn't asking for one. Q All right. Would it refresh your memory to look at Mr. Burkins' file concerning the date that he pled which would have been August 11th of 1986? A I'll take a look. Q All right. Does that indicate to you -- what happened on August 11th, 1986? A He pled open. Q All right, what does an open plea mean? A That means you either didn't get or you rejected the state attorney's offer and you're going to take your chances on a judge with an open plea. Q And that would indicate that Mr. Burkins did not have a plea offer at that time when he entered his plea to the charges in case number 86-8003? A Well, it obviously he didn't take it because he pled open. Q All right. Now let me also show you what has been marked, marked and received in evidence as Defense Exhibit Number Ten. Would you mind reviewing that transcript and I'll have some questions for you. Mr. Episcopo, let me back up a second. Referring to page eight of that transcript as you continue to read it. A Yes. Q What if anything does the Court indicate concerning to, concerning the nature of the plea which resulted in this sentencing hearing which is the Defense Exhibit Number Ten? A Well, um, the Court is questioning me, the presentencing investigation was an open plea and if I understand what you said just now Mr. Episcopo is pled to two and a half to three and a half. Q So the Court indicates that it was an open plea, correct? A Yeah, but I was under the impression that he had pled to three years. Q All right. A And that's what was presented to the jury and the fact that was in fact a below guidelines. Q All right, go ahead and finish reading it. A Okay. Q Now you are indicating, sir, you did not offer Mr. Burkins anything in exchange for his cooperation against Mr. Holton, correct? A No, I did not. Q And you also indicated that you didn't offer Mr. Burkins anything specifically tied to his own case in 86-8003? A No, he never asked for anything. Q You were a prosecutor for how many years, sir, total? A Um, to that point in time? Q Yes? A Um. Let's see it was about six with the Air Force and three with, four years with Pinellas County that's ten and a year, about eleven years. Q Wouldn't it sometimes be standard operating procedure when dealing with a cooperating witness who had charges of his own not to make him a specific plea offer prior to his cooperation? A Well, no, because you know his testimony would be tainted and it wouldn't be as valuable. Q Would it also not be wise to make such an offer before you found out that in fact he was willing and did testify truthfully? A Yeah, you also want to see what's going to come out. Q All right. As the Court indicated a PSI indicates which has been introduced into evidence as Defense Exhibit Number Eight that this was an open plea, correct, sir? A Yes. Q So now if this was an open plea then the defendant would have been facing up to ten years in prison on this charge, wouldn't he, sir, for a burglary of a structure and grand theft, correct? A Yeah, that would be five and five. Q All right. A If he got the mandatory sentence Q All right. So if the jury was under the impression that he may have gotten a deal for three years wouldn't that not have assisted the defense more than if they had thought he could have gotten up to ten years? A Mr. Chalu, I don't know what the jury is thinking or not thinking. I don't know if I can answer that really. It's hard to tell what a jury is thinking and what they make their decision on. Q In any event if the defendant, the defense, the defendant made an open plea he was in fact looking at a possible sentence of anywhere from probation to ten years in prison, correct? A Well, well, you're not taking into account his prior record too but just on those charges, yeah. Q In fact with his prior record he could been sentenced as a habitual felony offender, correct? A Yes, in fact the judge in the sentencing talked about life. Q All right. A Judge Evans mentioned life in prison. Q With a habitual felony offender the sentence could have been doubled, correct? A Yeah, I don't recall that statute book then. I know now but I really don't recall how it read back then. Q All right, sir. A But if the statute existed whatever it was. Q And in fact the sentence of Mr. Burkins reflected in Defense Number Eleven was a year in jail plus community control and probation, correct? A Yes, 365 days, two years community control followed by some probation. Q All right. So not withstanding his open plea and his cooperation he did not receive straight probation, did he, sir? A No, but he had credit for a lot of time served. Q And he got community control? A House arrest. Q Prior to probation and of course community control is what we call house arrest? A Yes. Q Got two years of that? A Yes. Q On top of the county jail and followed by probation? A Yes. Q Did you willfully and intentionally withhold any discoverable material from Ms. Morgan the defense counsel in this case? A No. Q Did you willfully and intentionally withhold any Brady material or Giglio material from Ms. Morgan in this case? A No, and I can tell you Mr. Benito his reputation was to give everything. He used to give out everything he had and I didn't always agree with it but he probably provided most of the discovery in this case before I got it. MR. CHALU: May I have just one moment, Your Honor? THE COURT: Sure. BY MR. CHALU: Q Concerning the Defense Exhibits Fifteen and Sixteen which are in evidence referring to David Pearson, sir. Is there any indication in here that this pouch that Mr. Pearson allegedly possessed was in fact the same pouch that Rudolph Holton allegedly possessed in this particular case? A No, not from what I saw I mean -- they don't have a picture there. Q All right. And this alleged rape of Katrina Graddy by Mr. Pearson occurred approximately a week or ten days prior to the offense in this case of which Mr. Holton has been convicted, correct, sir? A That was pointed out to me by defense counsel. Q As reflected in State's Exhibit Number or Defense Exhibit Number Thirteen? Yes. MR. CHALU: No further questions at this time, Your Honor. THE COURT: Any further questions? MR. MCCLAIN: Just briefly, Your Honor. THE COURT: Go ahead. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. MCCLAIN: Q I believe in your cross you were indicating that you wouldn't want to have any sort of agreement with the witness because that would taint their testimony or it could be something that could taint their testimony in front of the jury; is that fair to say? A Yes. Q So in this case though you did show up at Mr. Burkins' sentencing, correct? A Yes. Q And that was because of his testimony in the Holton case? A Yes, and in reading that apparently he helped in another case too. There was something about, I don't remember it I just read it in the sentencing something about escape. Q That's in the transcript in evidence? A Right, so there was that too. Q But you were seeking consideration for him at that sentencing? A Yes, specifically for my case against Mr. Holton. Q And under the sentencing guidelines he was looking at nine to twelve and he ended up with one year and probation? A And house arrest and probation, yes. MR. MCCLAIN: Thank you, I have nothing further, Your Honor. THE COURT: Anything further of this witness? MR. CHALU: No, Your Honor. THE COURT: May he be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: You're excused, Mr. Episcopo. We'll be in a 15 minute recess. (Whereupon, court was in recess) (Whereupon, court was back in session) THE COURT: Call your next witness. MS. MCDERMOTT: Sonny Fernandez. THE COURT: Okay, Mr. Fernandez, come on up. Have a seat over here if you would, Mr. Fernandez. MS. MCDERMOTT: We're moving up witnesses because we're missing some of the clerk's evidence and hopefully that will show up while we're -- THE COURT: Let's hope so. MS. MCDERMOTT: So we would call Mr. Fernandez. THE COURT: Raise your right hand, please, sir. Do you swear or affirm the testimony you're about to give will be the truth, the whole truth and nothing but the truth? THE WITNESS: I do, sir. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: My name is Antaro nickname Sonny Fernandez, F-E-R-N-A-N-D-E-Z. THE COURT: You may inquire. Whereupon, à ÃSONNY FERNANDEZÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MS. MCDERMOTT: Q Sonny, or Mr. Fernandez, what is your occupation? A At this time retired. Q What is your former occupation? A Private investigator. Q And did you also formally work for the Hillsborough County Sheriff's Office? A Yes, ma'am. Q In what capacity did you work for them? A Both as a uniformed patrolman and as a plain clothes detective. Q Okay. A In the criminal division. Q Do you know Rudolph Holton? A Yes, ma'am. Q How do you know Rudolph Holton? A I was hired by his attorney and worked on his original case. Q Okay. Do you recall when you were assigned to work on the case when she retained you? A When she got appointed is when she contacted me. Q And do you recall how you were compensated for your work on the case? A I was paid by the State. Q And so was there a limitation on the amount of money that you were going to receive? A Yes, ma'am, at that time it's not like it is now. We were held back as far as what we could spend and how much time we spent on the case. Q Okay. And what was your responsibility as Mr. Holton's investigator? A To do some interviews out on the street, to collect whatever evidence that I could and that was in favor of Mr. Holton and whatever else Ms. Morgan asked me to do. Q Okay. Specifically were you working on both the guilt and penalty phases as an investigator? A Yes, ma'am. Q And so if I can clarify Ms. Morgan would direct you as to what type of investigation she wanted to be done? A That's correct. Q Do you recall what kind of guilt phase investigation Ms. Morgan was requesting that you conduct for Mr. Holton? What was the general sort of theory of the case? A Well, the theory of the case was that Mr. Holton was not guilty and we had to prove it somehow. Q Okay. A Okay. Q Okay. Mr. Fernandez, do you recall a man named Solomon Clemmons? A Would this be the gentleman that owned the two story house where Rudolph stayed the night before this? Q Correct? A Yes. Q So -- A We called him Red I think. Q His nickname was Red? A I believe they called him Red. Q Okay and Mr. Clemmons you just mentioned how was he involved in the case? What did he -- when you interviewed him what kind of information did he provide to you? A Upon going to his rooming house there and interviewing him after having received information from Mr. Holton I went to speak with him and as a result of the conversation I found that Rudolph Holton had been staying in that rooming house the night of the alleged murder. Q Okay, and -- A Not alleged. Q You interviewed Mr. Clemmons at the house? A Yes, ma'am. Q Is that correct? A Yeah. Q Okay, what other information did he provide? In a sense I get Mr. Clemmons was an alibi witness; is that a good characterization of what he was? A Yes, ma'am. Q And what other information did he provide about his knowledge of Mr. Holton's presence at the rooming house? What kind of information did he give you about why he knew that Mr. Holton had been in the rooming house the night of the murder? A Okay, um when I went up to interview him it's a second story location and I started up the stairs and this Heinz 57 dog who had puppies had started coming after me, okay, I mean racing all kinds of and he had to move the dog, okay, and put it in one of the rooms to allow me to come up into the hallway. I went on upstairs and he showed me the room where Rudolph had slept that night and he says he was -- MR. CHALU: Object to hearsay. I don't know what the validity of what Mr. Clemmons said so I have an objection as to a general rule that hearsay is admissible in this type of proceeding. MS. MCDERMOTT: Judge, this is an ineffective assistance counsel claim and so we're trying to find out what information Ms. Morgan had available to her to present to the jury. THE COURT: I'll overrule the objection at this time. MS. MCDERMOTT: You -- THE COURT: I'll overrule the objection at this time. BY MS. MCDERMOTT: Q Please continue, Mr. Fernandez. A When I ended up speaking to him talking about the dogs, you know, being very aggressive or one dog the bitch being very aggressive and he showed me then Rudolph's room and we were just generally talking about Rudolph Holton and he told me that I learned from speaking with him that there had been a Tampa Police department officer that had come back to the room and Mr. Clemmons, I learned from Mr. Clemmons that the police officer had been there dressed in his, not fatigues but the jump suit crime scene clothes that they wear and Mr. Clemmons had observed the police officer palming a pack of cigarettes that was on the night stand next to the bed. Q Okay. A All there was an empty packet of cigarettes. Q Okay. Let me interrupt you for a second. Did you also learn that the police had interviewed Mr. Clemmons? A Yes. Q While they were there? A Yes. Q Was there ever any report from the police officers that you saw about that interview? A No. Q Now as far as this cigarette pack goes was there a report regarding the police obtaining the cigarette pack? A Yes, ma'am, but not from the rooming house. Q Correct, okay. Where did they say? A At the crime scene. Q Now after you interviewed Mr. Clemmons did you feel that information was important regarding his allegations that the police had taken the cigarette pack from the rooming house? MR. CHALU: I object this calls for a conclusion on the part of the witness, Your Honor, concerning the importance of the piece of evidence. MS. MCDERMOTT: This is the trial investigator. He was making decisions on what evidence -- THE COURT: I'll overrule the objection at this time. BY MS. MCDERMOTT: Q Okay, Mr. Clemmons, if you could continue. Did you feel that piece of evidence was an important piece for Mr. Holton's case? A Yes, ma'am. Q Why did you think it was an important piece of evidence important to have that allegation presented to the jury? A That indicated that there was the possibility of misconduct on the part of the Tampa Police Department. Q Okay. MR. CHALU: Same objection, Your Honor, it calls for a conclusion on the part of the witness. THE COURT: I'll overrule your objection for purposes of this hearing and attach to it whatever relevance I deem it appropriate. Let's move on. BY MS. MCDERMOTT: Q Mr. Fernandez, did you then reinterview Mr. Clemmons about this situation? A Yes, ma'am. Q And did you in fact take a taped statement from him? A Yes, ma'am. Q Who was present at that statement? A Mr. Clemmons, myself and Ms. Mina Morgan. Q Where did that statement occur? A There at the -- at Mr. Clemmons' outside in the parking area. Q Mr. Clemmons, (sic) I'm going to show you what has been marked for identification as Defense Exhibit Number 17, and do you recognize this document? A Yes, ma'am. Q What is that document? A That is a witness information sheet that we use and this is the transcription of the tape that was taken and the tape was made during that interview. Now, I don't know that this is exactly accurate not reading the whole thing and comparing it to the tape. Q Okay. A Okay. Q Did you do it at the time of -- A I can't remember. I can't remember. I can't remember but if you give me a second because there's one point here that if it's not written here it's on the tape, okay? Q Oh, right. A At this point I would have to say that this is not an accurate transcript of that tape. Q Why is that? A Because there is no indication on here that a question was asked by Mina Morgan. Q Okay. A And there was two or three questions on that tape where Ms. Morgan had asked some questions and it does not indicate where I quit asking questions and where she began and that's what I was looking for to see if Mina Morgan's name is in there. Q Was this, was the statement taken under oath? A No, I take it back. I mean according to this okay, this was done okay, correction, this was done at Mina Morgan's office and I brought him in there. Q Okay. A Yes, this was taken under oath. Q In this statement, in the statement the taped statement did Mr. Clemmons remain insistent in his statement regarding -- MR. CHALU: I object for a number of reasons. One, the document has not been properly authenticated. Number two, it is hearsay and number three, we don't -- the witness has not yet testified that this is an accurate account of the taped statement itself and for all those reasons I have to object because we don't even know if this is a correct rendition of the tape. It's hearsay and there is no way to cross-examine this thing. THE COURT: I think didn't he testify that it's not an accurate -- MR. CHALU: Well, he did, yes Your Honor, and then he said that it was taken at Mina Morgan's place but he did not recant the statement that it did not appear to be an accurate rendition of the interview so I have to object because we don't have the original tape here. We don't know if this is an accurate rendition of that interview and in any event it's hearsay unless it's properly authenticated. THE COURT: Where's the individual that is the subject of this tape? MS. MCDERMOTT: Mr. Clemmons, well he was born in 1918 and so even though he's still alive today he's very senile and you can't conduct an interview with him, but maybe I can clear that up, Your Honor. THE COURT: All right. MS. MCDERMOTT: My opinion was that this was an accurate representation of the tape. If it's not I'll have to recall Mr. Fernandez perhaps tomorrow or Friday because I do have the taped statement and then we could introduce the taped statement into evidence. MR. CHALU: Judge, once again there is case law that indicates that there is, there's case law that indicates an affidavit of a witness who is not available and not appearing is hearsay and doesn't have to be considered by the Court. Now I would think that same analogy would apply to a taped statement of that witness or a transcript of the taped statement of that witness and this is not a deposition prejudicial testimony obviously so it can't be admissible on that ground. At this point, Your Honor, it's hearsay. THE COURT: How do we ever get this tape in? MS. MCDERMOTT: Well, Your Honor, the point of this tape, the point of all this information and these documents that we're admitting that this is information that Mina Morgan had when she was representing Mr. Holton. This is information that she used to make her determination on what to present and with this tape my understanding is that with this under oath document that she had, she -- if she had asked Mr. Clemmons those questions on the stand and he answered to something she didn't expect she would have been able to impeach her own witness with this document so I think it's clearly relevant and admissible on a 3.850 hearing when we have an allegation of ineffective assistance of counsel. MR. CHALU: Judge, let me withdraw part of my objection. If counsel is representing that this is not being introduced for the truth of the matter asserted then I'll withdraw my hearsay objection if in fact they're just trying to show what information was in possession of defense counsel but I will still have to object on the grounds that it's not properly authenticated because we don't know if this statement is an accurate rendition of the tape. THE COURT: Well -- MS. MCDERMOTT: I think I can solve both of those problems. THE COURT: Let me just ask you one question and solve my problem for me. You're not -- are you trying to admit this for the truth of the matter? MS. MCDERMOTT: No, as evidence that -- THE COURT: In addition to that are you going to admit this tape later? MS. MCDERMOTT: Yes, Your Honor, I think I will have to recall Mr. Fernandez. THE COURT: Um, at this point in time I'm going to overrule your objection. If she's going to admit the tape at a later time. Let's move on. BY MS. MCDERMOTT: Q Now, Mr. Fernandez, a couple more questions about Mr. Clemmons. Did you speak to him again after you took the taped statement from him? A I may have had conversations with him here at the courthouse but I don't recall. Not on an official, you know -- Q All right. A -- interview. Q Okay. Moving onto the next subject. Mr. Fernandez, I would like to show you this will now be marked as Defense Exhibit 18 for identification and are you familiar -- what document did I just hand you? A You have given me a supplement report from Tampa Police Department. Q Who is the author of that report? A Do you have another? Q If I can assist you I gave you a bad copy. A Officer Lawless. Q And when was this report taken? A On the 23rd of June of 1986. Q Okay, and if you could flip to page two of the report on the first at the bottom where it says note, well, let me ask you first, have you seen this report before? A No, ma'am. Q You have never -- A Not that I can recall. Q Okay, and at the bottom of the page does it indicate -- this is a report regarding, um, Officer Lawless was a crime scene, he was sort of at the perimeter of the crime scene; is that correct? A Yes, ma'am. Q And so did he note that something happened that was sort of unusual while he was doing his job just sort of standing by the crime scene not legal -- MR. CHALU: Your Honor, before we get into the content of the report is counsel offering this into evidence? MS. MCDERMOTT: Yes, Your Honor. MR. CHALU: Judge, again I would object to hearsay unless it's not being offered for the truth of the matter asserted but only to show that evidence was or could have been available to the defense. MS. MCDERMOTT: That's correct, Your Honor. THE COURT: All right. MS. MCDERMOTT: And all of my exhibits that's what they're going to, what information that the defense had at the time of the trial. THE COURT: All right let's move on. BY MS. MCDERMOTT: Q What happened that seemed unusual to Officer Lawless? A Well -- Q Does it say that they found the body? A It appears by this report that someone came up to him and was giving information that the general public would not have knowledge of. Q What information is that? A It says who said Anita, what happened, who got choked, and this is something that people around the crime scene would not have any knowledge of. Q Okay and who -- is there a name associated with those statements? A Donald Lamar Smith. Q Okay. Does it provide any identifying information about Mr. Smith? A Yes, it gives his date of birth and it gives his TPD number and his address, home address according to the police department rotary file. Q Did Ms. Morgan ever ask you to go find Donald Smith to your recollection? A I can't recall. Q Do you remember ever trying to find Donald Smith? A The name sounds familiar, okay, but I do not -- I can't say I tried to look for him. I was trying to look -- the one I was trying to look for was a fellow by the name of Pine. Q Okay, thank you. Now moving onto that next. You mentioned a man by the name of Pine. Do you recall what Pine's real name was? A I never did find out. Q Okay. Would -- if I told you that Pine's name was David Pearson would that ring any bells? A No, but there's a David Pearson I believe that I may have had in my files something on David Pearson but -- Q All right and what is your recollection as far as what Pine -- why were you interested in finding this person named Pine? A In the process of interviewing different people some that I took notes on and some I didn't depending on where I was at and the different bars around South Nebraska Avenue whatever in running through these different places and asking questions I don't remember who it was I was told that Pine would have been a prime suspect. The name Pine came up several times from several people. I spent quite a bit of time trying to locate who Pine was and I had one address and Pine was not there it was another rooming house. Q Okay. How did you know the address belonging but you still didn't verify who Pine really was? A No, ma'am. Q I'm going to show you a series of exhibits and ask you if you remember why Pine was important. Is this your handwriting on this exhibit? A Yes, ma'am, sure is. Q I'm sorry, this is Defense Exhibit Number 19 for identification. And up at the top here did you interview an individual by the name of Andrea Atkins? A Yes, but I don't remember much more about it. Q What do your notes reflect as far as information that she had given you about Pine? A She was a -- MR. CHALU: I haven't seen that, Your Honor. MS. MCDERMOTT: I'm sorry. MR. CHALU: Thank you. No objection, Your Honor. THE COURT: It'll be so received. BY MS. MCDERMOTT: Q Can you tell me what information was Ms. Atkins providing this individual Pine? A Well, she says here that I have written here to ask about Pine to Andrea Atkins and then I have dash, knows Katrina was raped. Q Does that -- do you recall that was why you were interested in finding Pine because he allegedly raped Katrina? A Yes, ma'am. Q Do you remember who Bernard John Black was? A No, ma'am. Q Okay. I want to show you this is Exhibit Number 20 for identification and I want to show you on page, I'm on page six, can you read this section here and let tell me, did Mr. Black also have some information about the allegations that Mr. -- well this man by the name of Pine raped Katrina Graddy? MR. CHALU: I have no objection to 20 into evidence. THE COURT: It'll be so received. BY MS. MCDERMOTT: Q Is that information provided? A Yes, ma'am. Q Okay. I also would like to show you another exhibit. Do you know who Karen Graddy was? Can you remember who she was? A A lot of years ago. Q Okay, if I told you she was the victim's sister does that refresh your memory the same last name as her? Well, here why don't you -- I'm going to show you a couple of -- okay, start there. Is this the victim's sister giving this deposition Karen Graddy according to -- A According to what I'm reading here yes, ma'am. Q And I also did Ms. Graddy also provide information this is the victim's sister about Pine raping Katrina and that's on page ten of the deposition? A That's correct. MS. MCDERMOTT: Put this into evidence, Your Honor. THE COURT: Any objection? MR. CHALU: No objection. THE COURT: It'll be so received. BY MS. MCDERMOTT: Q There's quite a bit of information, Mr. Fernandez, regarding this alleged rape, correct? A Mm-mm. Q But you never could find out who David Pearson, I'm sorry, who Pine was? A Who was Pine. Q Or substantiate that rape had actually occurred? A Correct. Q I'm going to show you an exhibit that already is in evidence as Number 13 and 14 and these are a couple of police reports. If you could take a moment to review those reports and I'm going to ask you a couple of questions about those. Mr. Fernandez, I don't mean to interrupt you but what's the dates of those police reports? A The date is June the 13th of 1986 both of them. Q Okay, and what is the gist of those reports? A Well, one of them is involuntary sexual battery and the other one is obstruction by disguising identity. Q Who is the suspect in those reports? What is the name of the suspect? A David Lorenzo Pearson. Q Okay. Who is the victim of those? A On this one on the sexual battery it's Katrina Grant. Q Katrina Grant. I'm going to ask you -- did you ever have these exhibits at the time of Mr. Holton's trial? A No, ma'am. Q And before I ask you about the benefit of those exhibits let me first ask you to look at another document while you also have those there. I'm going to show you an exhibit marked for identification as Defense Exhibit Number 22. Can you tell me what that exhibit is? A It's a certificate of death on Ann, Katrina Ann Graddy. Q Okay, if you could look at the address on this certificate of death, what address does that say she lived at? A 1236 East Scott. Q Well, that's the place of her death. What was her residence at the time of her death? A 1035 Joy Court, Tampa, Florida. Q What's the residence on the report where the complainant says the man David Pearson raped them? A 1035 Joy Court. Q If you could also do the same thing with the date of birth, what was Ms. Graddy's date of birth on her death certificate? A March the 29th of 1969. Q What was it on that police report? A March 29th, 1968. MS. MCDERMOTT: Do you recall at trial that -- well, strike that. Okay I'd like to move this exhibit into evidence. MR. CHALU: No objection. THE COURT: It will so received. BY MS. MCDERMOTT: Q Mr. Fernandez, would it have been helpful for you to have these reports at the time of Mr. Holton's trial? A Excuse me for laughing but yes, ma'am. Q Why? Why would that have been helpful to you? A Because I would have in the first place I had no knowledge, we had no knowledge that Katrina that had been raped, okay, the way and the things that had happened here on this report where she signed a waiver of prosecution never seen this before and if I had this I would have been able to put the name Pine and Pearson together. Q Correct, okay, and let me ask you one more thing about the other report which is marked as Defense Exhibit 14 that's already been moved into evidence as Exhibit Number 14 in there what is that report evidencing? A This um -- Q What's the charge? A The charge is obstruction by disguising identity. Q What name was he providing to the police? A He told his name was Donald Lamar Smith. Q Okay. A He gave his name approximately eight times. Q Okay and -- A This was verified that his name was David Lorenzo Pearson. Q And if you had seen this report would you have wanted to talk Donald Lamar Smith? A Yes, ma'am. Q Okay. A I read his report, yeah. Q And I just want to clarify something. When you say that you didn't have this report and it would have been helpful because of the things in there about the rape you mean the details about the rape; is that what you mean? A Yes, ma'am, the type of everything that had occurred. Q Okay. A Okay, everything that had occurred. Q And as far as the obstruction charge you mentioned that there was a waiver of prosecution signed on the rape charge, correct? A Yes. Q Is there any such document with the obstruction charge? A No. Q Thank you. A No. Q Okay, Mr. Fernandez, I want to talk to you a little bit now about do you recall who Johnny Newsome in this case? He went by the nickname of Georgia Boy do you recall Georgia Boy? A Is he the one that was in jail? Q No. A The jail house snitch? Q No, he wasn't a jail house snitch. Do you recall a witness who said that they saw Mr. Holton with Katrina Graddy at the crime scene? Let me start over. Do you recall that a black bag was a piece of evidence that was important in this case? A Yes. Q And why was that black bag important? Do you remember how that effected Mr. Holton? A I can't. I seem to remember but I don't remember well enough to make a definite statement on it. Q Let me move on and ask you. Are you familiar with the name Dan Simmons? A The name sounds familiar. Was that the -- Q No, let me ask you this. Do you remember who Carrie Nelson was? A Carrie Nelson was a lady that lived behind the house. Q What was her role in the prosecution of Mr. Holton? A She had advised the police department that she had observed Rudolph Holton going into this crack house that day. Q Okay. Um, Mr. Fernandez, I'm going to show you what's been marked as Defendant's Exhibit 23, 23 and this is the deposition of Carrie Nelson. I'm going to ask you to look at page 13 and now, let's start on page 12 she's being asked about the night of the crime and what she witnessed and at one point does she indicate that there was someone else on the porch with her that night? A Yes. Q And does she then tell the name of an individual on the porch? A Willie Dan Simmons. MS. MCDERMOTT: Do you recall Ms. Morgan ever directing you to find Mr. Simmons -- oh, I'm sorry, Your Honor, can I move this into evidence? THE COURT: Any objection? MR. CHALU: No, Your Honor. THE COURT: So received. A I believe I looked for him and couldn't find him. Q You believe you looked for him? A If I'm not mistaken this was the one that was a transvestite or homosexual or sissy or something that's what I can put together with that but I don't think I ever found him. MS. MCDERMOTT: Okay. Can I have a moment, Your Honor? THE COURT: Yes, ma'am. MS. MCDERMOTT: That's all I have. THE COURT: Go ahead, Mr. Chalu. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Good afternoon, Mr. Fernandez. A Good afternoon, sir. Q Regarding your interview of Red Clemmons and I'm talking about the oral interview you had of him the only thing you know about what Mr. Clemmons said was what he told you? A That's correct yes, sir. Q You don't have any personal knowledge of those matters? A No, sir, I do not. Q Okay. So regarding his point about a TPD officer coming back to the room and taking a pack of cigarettes the only thing you know about that is what Mr. Clemmons told you? A That is correct. Q Would it seem unusual to you that if Mr. Holton were a suspect in a murder that the police might want to visit the room where he stayed and look around for possible evidence? A No, that's very natural. Q Do you recall anything about that detective visiting Mr. Holton's room and pick up a shirt, do you remember anything about that? A No, sir. Q Do you recall Mr. Holton telling you anything about a detective coming by to pick up a shirt? A I don't recall. Q Okay. Is it possible that he told you that and you just don't remember? A Yes, sir, it's possible. Q Now you said that you had not seen the report regarding Donald Smith being at the scene and asking about who was choked or strangled, correct? A I don't recall that. Q All right. Is it possible that was furnished to the attorney and you never saw it? A Possibility, Mr. Chalu. Q You indicated that Donald Smith's name sounded familiar to you? Is it possible you had seen a report before and just don't remember here 15 years later? A Possibility. Q All right. You indicated that Pine was a prime suspect, correct? A That's correct. Q All right. Now by that I understand you mean that he was a prime suspect in the homicide of Katrina Graddy, correct? A Mm-mm. Q Now, the material that you have been shown regarding Pine refers to his alleged rape of a Katrina Grant approximately ten days prior to the homicide, correct? A That's correct. Q Okay. Would you agree with me that just because he may have been a suspect of a rape ten days earlier that does not show that he was the murderer of Katrina Graddy ten days later? A No, but a prime suspect. Q And what efforts did you make, sir, to find Pine? Did you make extensive efforts to find Pine? A Yes, sir. Q Okay. A I contacted the informants. I was up and down Nebraska Avenue talking to different people and go to the Kentucky Fried Chicken and sit there for a couple of hours talking to people that came in and out. It was right down the street from the crime scene. Q All right. A And did several things trying to locate Pine. Q Okay. So was that really the focus of your investigation? A Well, no that's one part of it. I mean as far as trying to show that Mr. Holton was not the guilty party. Q You made extensive efforts to find this gentleman Pine, correct? A Yes, sir. MR. CHALU: That's all I have, Your Honor. THE COURT: Was there something else you wanted to say? THE WITNESS: No. MS. MCDERMOTT: Briefly? THE COURT: Sure, go ahead. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MS. MCDERMOTT: Q One question, Mr. Fernandez, I hope. Now to your knowledge was -- you're mentioning that Pine was the prime suspect but to your knowledge was he a suspect that was investigated by the police? A No. MS. MCDERMOTT: Okay, thank you. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: You're excused, thank you. THE WITNESS: What about the -- am I excused or -- MS. MCDERMOTT: I'm sorry, I'd like to keep him under subpoena. THE COURT: You're still under subpoena. Let them know where they can reach you. All right, who is next? MR. MARIO: Well, Your Honor, we would call Dr. Willey at this time however I don't know if they have located the photographs that the clerk's office has, they have the exhibit box. THE CLERK: Judge, the photographs that the defense was asking for I'm -- they're saying we have pictures that are larger pictures. MR. MARIO: They're very large enlargements poster size hard stuff. MR. CHALU: Do you have the exhibit numbers? MR. MARIO: Yeah, they were, these were received at trial as State's Exhibit Composite Exhibit 26(A) through (E) and they were received into evidence at record page 240 and Ms. McDermott and I actually viewed these photographs at the clerk's office approximately two weeks ago. THE COURT: Are they hard back photos? MR. MARIO: They were hard on a poster type board blown up photographs. THE COURT: What are you going to be able to do with that? MR. MARIO: It shows the defendant Mr. Holton with his shirt off from the waist up and some welts and scratches that appear on his chest. THE COURT: But they are on some sort of board? MR. MARIO: Something like that but not quite as large as those she's holding but they're very large. They were not contained in a box that I recall. They had them just sort of lying in the vault along with -- THE CLERK: Your Honor, I'll go back across the street and look again. THE COURT: All right, well let's take about a ten minute recess and see if we can locate them and get this thing done and out of here, okay? We'll be in a ten minute recess. (Whereupon, court was in a recess) (Whereupon, court was back in session) MR. MARIO: We would call Dr. Edward Willey. THE COURT: Didn't you want her out when the doctor testified? MS. MCDERMOTT: I asked her to step out. THE COURT: Doctor, if you'd step up here and have a seat in the witness chair, please, sir. THE WITNESS: Very good, thank you, sir. THE COURT: Raise your right hand, please, sir. Do you swear or affirm the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: I do so swear. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Very good. Edward N. Willey W-I-L-L-E-Y. THE COURT: You may inquire. Whereupon, à ÃEDWARD N. WILLEYÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: MR. MARIO: Thank you, Your Honor. Please the Court, hi, Dr. Willey. Before I begin asking questions I just want to say that opposing counsel has stipulated to Dr. Willey's qualifications as an expert in forensic pathology so I have a copy of his C.V. which I will provide a copy to you, Mr. Chalu. THE COURT: Okay. MR. CHALU: That's correct, Your Honor. THE COURT: All right, I'll find him to be an expert witness. THE WITNESS: Thank you. MR. MARIO: Will this be admitted? I don't recall what exhibit we're up to. THE CLERK: Twenty-four. THE COURT: Exhibit 24 will be so received. You may proceed. Whereupon, à ÃEDWARD N. WILLEYÄ Ä, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. MARIO: Q What type of work do you do, Dr. Willey? A I am a physician and a pathologist and I have a consultation practice in analyzing medical matters for insurance companies, attorneys, companies that need information risk managers people like that. Q And how long have you been engaged in this kind of work? A Somewhat over 15 years. Q During the course of your job you conduct examinations of patients? A Yes, I do see patients. Principally I deal with medical records and with medical problems distinguishable to individual patients that's generally what pathologists do. Q Okay how many such reviews and examinations have you documented over the course of your career would you estimate? A Well, my current number is over 3,300 but I had done many of them before I began numbering the cases so it's probably much more than that. Q As a forensic pathologist then are you frequently called upon to testify in court concerning your medical opinion in a given case? A Pretty frequently, yes. Q How many times have you testified in court, sir? A Well, it's much more than 100. I don't know how many. I never kept track. Q Have you been accepted as an expert in Florida? A Yes, many times. Q And other jurisdictions? A Yes, both here, Pinellas, Duval, Dade, Orange, probably a couple dozen others. Q Could you just very briefly since the Court already has a copy of your C.V. just describe your education and training consisted of? THE COURT: I actually read his C.V. already and I found him to be an expert and we can move on. BY MR. MARIO: Q All right, Doctor, as part of your job are you required to examine healing wounds? A Yes, I see them frequently. The healing wound is simply part of the healing process for whatever reason that's common throughout the body. Q So this could be a wound from surgery or could be a wound from an accident? A Yes, for any reason. Q Is a scratch part of the healing wound? A Infections heal too. Q Infections as well? A Sure. Q Is a scratch a type of healing wound? A Yes, that's superficial abrasion that generically breaks the skin. Q How often would you say you examine these sorts of things? A Well, a scratch in particular probably not more than a couple times a year but lacerations, tears, abrasions, contusions are normal things sort which are similar in the healing process which I see commonly. Q Let me ask you. Does the appearance of a healing wound like a scratch does that change over time? A Yes, it changes from when it first begins to when it finally is totally healed and whatever scars there is so contracted it's difficult to see. Q So based on that fact is it possible to estimate the age of a scratch by looking at its physical appearance? A I would not want to under estimate the difficulty in doing that. You can't do it precisely. On the other hand the more fresh it is the more reasonable you can estimate what the age is. The older it is the more difficult it is. Q Certainly. And is this something you've done before? A Yes. Q Have you been retained to give an opinion in this case, Doctor? A Yes. MR. MARIO: I'd like to show the witness some photographs, Your Honor, if I may approach the witness and these are the photographs that were introduced earlier at the trial as State Exhibits 26(A) through (E). THE COURT: Okay. BY MR. MARIO: Q Doctor, just look through those very quickly and tell the Court if you had a chance to review those photographs before? A Yes, I have. I believe these are the exhibits that we examined in the office of the clerk not long ago. Let's see -- Q So the record is clear these are photographs enlargements of the photographs taken of Mr. Holton? A Yes, that's correct. MR. MARIO: And this is all reflected in the trial record on appeal and these were taken actually on June 23rd, 1986 and they were received into evidence by this Court or by the trial court rather at page 240 of the ROA. THE COURT: Okay. THE WITNESS: They were originally exhibits 26(A) through (E) consecutively. THE COURT: All right. BY MR. MARIO: Q Okay, in addition to reviewing those photos, Doctor, have you also read the transcript of the medical examiner's testimony in Mr. Holton's trial? A Yes, two experts both of which concerned the skin injuries. Q And have you also considered some of the scientific literature that has been written on this subject? A Yes. Q Have you brought some of the materials with you here today? A Yes, I have. Q Are those considered authoritative texts in your field with respect to healing wounds? A Yes, I believe that there are things that people such as I rely upon. MR. MARIO: Your Honor, these are also sets of those articles and excerpts from scientific texts and I have provided a copy to Mr. Chalu. THE COURT: You wish to admit those into evidence? MR. MARIO: Yes, Your Honor. THE COURT: Mr. Chalu, any objection? MR. CHALU: No, Your Honor, as long the witness is indicating that he relies on them as authoritative in his field. There are numerous articles here. THE COURT: All right, I think he already did that so I'll receive them. What are the numbers? THE CLERK: Twenty-five. MR. MARIO: Twenty-five (A) through (F.) THE COURT: Twenty-five (A) through (F) will be received. BY MR. MARIO: Q All right, Dr. Willey, then based on your observations of those photographs 26 (A) through (F) of the trial exhibits from the State as well as your review of the trial transcript and your knowledge in pathology in general, do you have an opinion with a reasonable degree of scientific certainty as to the age of the scratch marks that are depicted in this photographs? A Yes, I do. Q What is that opinion, Doctor? A I think they're likely weeks or even months old. Q And if the medical examiner's testimony at trial indicated they may have been 36 hours old or possibly younger would that be unreasonable in your opinion? A Well, I'm aware there are differences of opinion however, the way I interpret these pictures are that are quite irrelevant areas that are completely healed and if that interpretation is correct I do not think it's reasonable to say that they are so young. Q Could you explain a little bit to us about that process if how these heal and how you can look at a scratch such as that and look at the appearance of the scratch and make an estimate as to how old those scratches would be? A Yes, initially a scratch breaks the skin and there's bleeding as small blood vessels rupture and there is a reaction in the skin and a clot of blood forms which is only shed as the skin heals beneath that. For a scar to form and I believe these white areas are scars takes at least a week and probably much more than that because the individual cells from which collagen and scars are formed do not begin to populate a wound for a number of days and they do form collagen for a week or more. Q Could you show the small one, the holes show the Court what white area you're referring to? A There are areas that are white all along these wounds. Q That's scarring? A I believe that's scarring, yes. Q You don't see any indication of scabbing on that wound, do you? A No, I do not. Q And if those scratches were inflicted or if Mr. Holton had been scratched within 36 hours of the date the photograph were taken would you expect to find scratches? A I would expect to find irregular disruption in a linear pattern and portions of crust. I would not expect to find any healing properties at all in that interval. Q So how many or how much time in minimum could have elapsed between the time that the scratches were inflicted to the time the photographs were taken on June 23rd? A I think a number of weeks. Q At the very least? A At the very least. Q At the outside? A At the outside it would be difficult to say but the longer you go the more difficult it is to date them. Q Month or years? A Could be months could be longer. Q All right, Doctor, now what you're telling us then about the ability to look at scratches and based on their visual appearance and the linear pattern and so forth would this knowledge have existed in 1986 at the time of Mr. Holton's trial? A Oh, yes, healing properties have been described well for more than 50 years perhaps more than a 100. Q So this is common knowledge in the medical field? A Yes. Q And would there have been other experts that were available then in '86 to testify to that fact? A By all means I was around then too. Q Would you have been willing to testify had you been asked in this case? A Yes, I wasn't of course but -- Q Certainly. Are all these opinions you expressed here today within a reasonable degree of scientific certainty, Doctor? A Yes, that's my judgment. MR. MARIO: Your Honor, I have no further questions. THE COURT: Mr. Chalu, you may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Thank you, Judge. Good afternoon, Doctor. A Good afternoon. Q How are you, sir? A Good, thank you. Q Now you never examined the defendant Mr. Holton back in December of 1986, did you, sir? A Most definitely I did not, no. Q And referring to your authoritative literature regarding the rate of healing isn't it true that different persons heal at different rates? A Yes. Q Okay, and you indicated of course you cannot precisely estimate the age of any wound, correct? A That's correct, unless you know how it was made and when. Q All right. And your estimate of the age of these wounds that are based solely on those photographs which have been introduced into evidence? A That's correct. Q And, Doctor, could those wounds depicted in if you will allow me. A Certainly. Q Depicted in State's Exhibit or I should say Defense Trial Exhibit 26(A) and 26(B) could those have been made by fingernails? A Yes. MR. CHALU: All right that's all the questions I have, thank you, Your Honor. THE COURT: Mr. Mario, any further questions, sir? MR. MARIO: Just a second, Your Honor. THE COURT: Sure. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. MARIO: Q They could be made by fingernails? A Yes, they could be. Q Could they have been made by any other sharp object, Doctor? A Yes. Q It's impossible to tell? A I beg your pardon? Q It's not possible to tell by looking at those photographs? A You can't be sure how they were made, that's correct. MR. MARIO: Thank you, no further questions. THE COURT: All right, may this witness be excused? MS. MCDERMOTT: Yes, Your Honor. MR. CHALU: Judge, I just have one follow up question. THE COURT: Okay go ahead. à ÃRE-CROSS EXAMINATIONÄ Ä BY MR. CHALU: Q Doctor, assuming for a second that the medical examiner in this case in 1986 Dr. Mark Solva (phonetic) testified at trial that he could not say that those wounds were made by fingernails; would you agree with that opinion? A Yes, I can't be sure they were made by fingernails, they could have been made by fingernails. MR. CHALU: Thank you, Doctor. THE COURT: Anything else? MR. MARIO: No, Your Honor. THE COURT: May he be excused, gentlemen? MR. CHALU: Yes, sir. THE COURT: Thank you, sir, you're excused. THE WITNESS: Thank you, Your Honor. THE COURT: Do you have any more witnesses out there? MS. MCDERMOTT: Your Honor, we had planned on calling the two witnesses that were supposed to be transported from DOC today. THE COURT: Did we get either one of them here today? MS. MCDERMOTT: One is here but he just got here so he's not here. He's over at the jail we did learn that. We could break for the day. THE COURT: All right. MS. MCDERMOTT: We'll be ready to go tomorrow with a bunch of witnesses. THE COURT: All right, well, then I guess we'll start again tomorrow afternoon at 1:30. See you all tomorrow afternoon at 1:30. (Conclusion of proceedings) à ÃCERTIFICATE OF COURT REPORTERÄ Ä STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, COLLEEN MERRITT, OFFICIAL COURT REPORTER for the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, DO HEREBY CERTIFY that I was authorized to, and did report the proceedings and evidence in this hereinbefore-styled cause, as stated in the caption attached, and that the preceding transcript attached hereto is a true, accurate and correct computerized transcription of my report of the proceedings had at said session. I FURTHER CERTIFY that I am not employed by or related to the parties to this matter nor interested in the outcome of this action. IN WITNESS WHEREOF, I have hereunto set my hand and seal in Tampa, Hillsborough County, Florida, this 26th day of November, 2001. ------------------------------- à ÃColleen Merritt, Official Court Ä Ä Ã ÃReporterÄ Ä