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 19, 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, Asst. CCC - Nortern 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 .............................. 119 1 DEFENSE WITNESS - FLEMMIE BIRKINS ....... 119 21 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 119 21 CROSS-EXAMINATION BY MR. CHALU ........... 127 14 RE-DIRECT EXAMINATION BY MS. MCDERMOTT ... 146 17 DEFENSE WITNESS - BERNORIS SMITH ......... 148 23 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 148 23 CROSS-EXAMINATION BY MR. CHALU ........... 153 19 RE-DIRECT EXAMINATION BY MS. MCDERMOTT ... 157 21 DEFENSE WITNESS - CARL SCHENCK ........... 159 16 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 159 16 CROSS-EXAMINATION BY MR. CHALU ........... 166 3 RE-DIRECT EXAMINATION BY MR. MCCLAIN ..... 169 25 RE-CROSS EXAMINATION BY MR. CHALU ........ 171 11 DEFENSE WITNESS - JOHNNY NEWSOME ......... 173 7 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 173 7 CROSS-EXAMINATION BY MR. CHALU ........... 178 8 RE-DIRECT EXAMINATION BY MS. MCDERMOTT ... 192 16 RE-CROSS EXAMINATION BY MR. CHALU ........ 193 23 DEFENSE WITNESS - GEORGE SMITH ........... 195 15 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 195 15 CROSS-EXAMINATION BY MR. CHALU ........... 198 15 DEFENSE WITNESS - DEBRA WILLIAMS ........ 201 12 CROSS-EXAMINATION BY MR. CHALU ........... 210 18 RE-DIRECT EXAMINATION BY MS. MCDERMOTT ... 216 7 DEFENSE WITNESS - DARRYL JACKSON ......... 219 10 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 219 10 CROSS-EXAMINATION BY MR. CHALU ........... 226 3 DEFENSE WITNESS - JANITA WHITEHEAD ....... 227 23 DIRECT EXAMINATION BY MS. MCDERMOTT ...... 227 23 CONCLUSION OF PROCEEDINGS ................ 233 10 CERTIFICATE OF REPORTER .................. 234 1 ÃÃE X H I B I T SÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ Defense Exhibit 26 - affidavit ........... 165 24 Defense Exhibit 27 - death certificate .. 216 24 of Carrie Nelson Defense Exhibit 28 - death certificate .. 224 21 of Willie Simmons Defense Exhibit 29 - police report ....... 229 8 à ÃP-R-O-C-E-E-D-I-N-G-SÄ Ä THE COURT: Ready to proceed? MS. MCDERMOTT: We would like to call Flemmie Birkins. THE COURT: Flemmie Birkins. Mr. Birkins, if you'd step up here to the witness chair, please. Raise your right hand, please. 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: Yes, 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: Flemmie Birkins, B-I-R-K-I-N-S. THE COURT: You may inquire. Whereupon, à ÃFLEMMIE BIRKINSÄ 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 Good afternoon, Mr. Birkins. How are you doing? Mr. Birkins, did you testify at Rudolph Holton's trial in 1986? A Yes, ma'am, I did. Q And do you know Rudolph Holton? A Yes, ma'am. Q How long before 1986 did you know him? A Um, back all my life. We grew up together. Q You grew up together? Now in June of 1986 were you up incarcerated at the jail? A Yes, ma'am. Q And did there come a time when you saw Rudolph Holton in the jail? A Yes, ma'am. Q Was this the first time to your knowledge? A It was. Q Now were you aware that when you saw Rudolph Holton he was in there for first degree murder? A No, I wasn't aware then. Q And what was your status at the jail? Did you have a sort of a special status? A Trustee. Q When you're a trustee at the jail, what does it mean to be a trustee? A You're a trustee you pass clearance, the cat walk and what not. Q What kind of benefits come with being a trustee? A Um, get time off, a little time off. Q When you're a trustee do you have a lot of mobility in the jail? A Yes. Q You get to move around without bailiffs escorting? A Yes. Q Why were you in jail? A At that time it was, um, I don't recollect the charge right off. Q Okay, that's fine. Now was this the first time you had been arrested? A No. Q And was this the first time you had been charged with a crime? A No. Q Had you previously been convicted of a crime? A Other times, yes. Q What did that mean to you the fact you had previously been convicted of a crime and then you were charged with a new crime what significance did that have to you? A That I was charged as a habitual criminal. Q You thought that might be a possibility that you were a habitual criminal? A Yes. Q And when you're a habitual criminal does that mean it increases your punishment if you get found guilty? A Yes. Q Now were you aware of how many years you were facing on the charges which you don't remember and that's okay but do you remember what kind of time you were facing? A Yes, ma'am. Q What was that? A It was like twelve, fifteen years. Q Okay. And when you saw Mr. Holton at the jail did you see that as an opportunity to decrease the amount of time you were looking at? A If you mean that did I see a chance to you know explore or use him, yeah. Q Was this -- A Not the first two days the third day. Q Because you knew him, you knew that here was your chance to limit your time of the time you might be looking at? A Right. Q On your own case. And at that time did you want to get out of jail? A Yes. Q When you testified against Rudolph Holton did you tell the truth? A No. Q And did you, did Rudolph Holton ever discuss the case with you? A No, he did not. Q Did he ever make any statements regarding -- A No, he did not. Q -- of the crime which he was convicted of? A No, he did not. All the conversations now all the questions the man never said anything to me about his trial or case or anything. Q Okay. At the time of the trial you testified that Rudolph confessed to you; is that correct? A Yes. Q In your testimony you provided some details about the crime that you said he had given to you? A Yes. Q How did you get those details? A Through the news. Q Through the news? A Through the news, the guards and others. Q The guards? A By guards, you know. Q Is there at some point you came to learn that he was charged with first degree murder? A Yes. Q You came to learn more about the crime he was charged? A Yes. Q Now after you obtained the information about Mr. Holton's case what did you do with that information? A I used it to my benefit. Q Did you contact the state? A Yes. Q And after you contacted the state did they, did someone come to talk to you? A Yes. Q And throughout the course of time did various people come and talk with you about what you said you knew about Rudolph Holton's case? A Yes. Q Did anyone ever provide with you additional information about Mr. Holton's case? A I seen pictures of the crime. Q Someone showed you some pictures of the crime? A Yes. Q And what pictures did they show you? A Pictures of a woman black girl, you know, well certain pictures of her face that was at, you know. Q Okay, and um after you contacted the state was it your understanding that the state was going to assist you in your charges? A Yes. Q How were they going to go about that? A Through an officer. Q And when you testified at Rudolph Holton's trial was it your expectation that you would benefit from that testimony? A Yes. Q It isn't that true that thirty days after you testified -- MR. CHALU: Objection to the leading nature of the questions on direct examination. THE COURT: Don't lead your witness. BY MS. MCDERMOTT: Q Mr. Birkins, do you recall the time frame between when you testified at Mr. Holton's trial and when you were released from jail? A Um, yes, I think so. Q How much time do you recall that you spent? A A few months. Q You were -- A Violation of probation parole rather. Q Also during that time period that we have been discussing were you a confidential informant for the police? A I worked with them. Q Okay. How long had you been a confidential informant? A A while. MR. CHALU: Excuse me, Your Honor, his response was I worked with them. He did not admit to being a confidential informant. BY MS. MCDERMOTT: Q Mr. Birkins, were you a confidential informant? A Yes. Q And what does that mean you work with them? A That you know work with them with information through the years. Q How long had you been a confidential informant for them? A Off and on around. Q And whenever -- because you were a confidential informant did you use that to try to get out of charges whenever you were arrested? A Yes. Q And when you testified against Mr. Holton were you only testifying because your understanding was that you were going to be getting out of jail? A Yes. Q And the testimony that you provided regarding the confession that is your, the confession you testified to was that true? A No. MS. MCDERMOTT: Thank you, Mr. Birkins. THE COURT: Mr. Chalu, you may inquire. MR. CHALU: All right, thank you, Your Honor. Request just a second. THE COURT: Sure. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Mr. Birkins, do you remember who came out to see you at the jail what officers came to se you at the jail? A No, not right. Q Do you recall that? A No. Q Does the name Detective Noblitt sound familiar to you? A Yeah, it might. Q I beg your pardon? A It might. Q Now when the detective came out to you see you did you tell him that Mr. Holton had confessed this homicide to you? A Yes, sir. Q All right. Did you also tell him that it was a strangulation murder? A Yes, sir. Q She died from strangulation? A Yes, sir. Q Did you tell him that he burned the house afterwards? A Yes, sir. Q How long had you known Mr. Holton at that period of time when you saw him in the jail in 1986? A Um, I would say I had known him ever since I was about five years old. Q You had known him a very long time, correct? A Yes. Q You guys were not strangers, correct? A No. Q You were friendly with each other? A Correct. Q Did you ask him, Mr. Birkins, what he was in jail for? A No. Q You ever ask anybody what they're in jail for? A Yes. Q But in Mr. Holton's case you didn't do that? A No, it was on T.V. Q Do you recall seeing Mr. Holton on the first floor of the jail when you first spoke with him? A Yes, I seen him several times. Q Was that one place you saw him? A Probably was. Q Do you recall talking to Mr. Holton when he was in the, getting his mattress and blanket when he just came in the jail; do you recall that, sir? A Probably was, I was a trustee I don't know. Q Do you remember talking with Mr. Holton in the central area of the jail before he was being processed? A I talked to him in the jail in his cell. Q Did you telling Detective Noblitt that you knew who Rudolph Holton was and that he was in there for a homicide? A I told them what they wanted to hear, that was his name and I told him exactly what they wanted to hear. Q Did you tell Detective Noblitt that you asked Rudolph Holton what he was in there for? Did you tell him that? A Yes. Q Did you tell him that Mr. Holton told you that he was in there for murder? A Yes. Q Did you also tell Detective Noblitt that you asked Mr. Holton if he did it? A Yes. I told him exactly what he wanted to hear. Q Did you tell Detective Noblitt Mr. Holton told you yes, that he in fact committed the murder of the girl in the house that was set on fire? A Yes, I told him what he wanted to hear. Q Detective Noblitt you called him out there? A It was a call made to him to his office. Q All right. You called his office and he came out there to see you at your request, correct? A Yes. Q He didn't go, he didn't come on his own will to see you, correct? A No. Q Do you recall telling Detective Noblitt that you met, you had met the girl, that Holton had met the girl and that he was going, he and the girl were going to the house on Scott Street for purposes of having sex for drugs, did you tell him that? A Yes, it was on TV. Q Did you tell Detective Noblitt that Rudolph Holton said that he did not have any drugs at that time; do you remember that? A No, I don't recall that. Q All right, would it refresh your recollection if you reviewed a copy of the police report? A Sure. Q You made a statement to Detective Noblitt? A Sure. MR. CHALU: May I approach the witness? THE COURT: Sure, go ahead. BY MR. CHALU: Q Now, do you remember having looked at the police report do you recall telling Detective Noblitt? A I recall just what he told me. Q That Holton said that he did not have any drugs to give the girl for sex? A I recall just what you showed me, sir. Q All right. A What you just said she was he told me, you know. Q Holton told you this? A No, he told me, I did not see Holton. Q Do you recall telling Detective Noblitt that Holton told you that he was in the house having sex with her, do you remember telling Detective Noblitt Holton said that? A Yes, sir. Q Do you remember telling Detective Noblitt that Holton told you that while he was having sex with her he put his hands around her throat and strangled her? A Yes, sir. Q Do you remember telling Detective Noblitt that Holton told you that once he realized the woman was dead he went to the gas station and got some gas and set the house on fire; do you remember that? A I remember about the fire the gasoline. I don't remember you know that she was dead. Q Do you remember Detective Noblitt asking you why you had come forward with this information? A Yes. Q Do you remember what you told him? A Yes. Q What did you tell him? A No, that I was doing, you know. Q Well let me ask you this. Do you remember telling him that you did not want anything in exchange for that information? A No. Q Okay. Would it refresh your recollection if I showed you a copy of the interview? A Yes. MR. CHALU: May I approach, Your Honor? THE COURT: Sure, go ahead. BY MR. CHALU: Q Do you remember saying you don't want anything? Do you recall that, sir? A It's there. Q You said you didn't think it was right to kill, to kill a young girl? A Yep. Q Isn't it true that's what you said? Didn't you also tell him that you would be willing to snitch to take a polygraph test? A Yes. Q And in fact, sir, did you take a polygraph test? A Yes. Q And, just let me make reference to Defense Exhibit Number Ten which was brought into evidence by the defense, Defense Number Ten where it states where Mr. Episcopo states that the polygraph that the defendant did in our office concerning that statement to the police and he came out truthful. Now did you take that polygraph, sir? A Yes. Q Did you pass that polygraph concerning the statement you had made to Detective Noblitt? A I said, I did. Q Now did you give a deposition in this case to the defense attorney Mina Morgan? A Mina Morgan? Q The defense attorney Mina Morgan did you give a statement to her where there was a court reporter like this present and the prosecutor was present and your statement was taken? A I don't recall. Q Well, would it refresh your memory if I showed you the deposition, sir? A Sure. MR. CHALU: May I approach the witness, Your Honor? THE COURT: Go ahead. BY MR. CHALU: Q For the record I'm showing you a copy of the deposition which purports to be your deposition taken on September 25th, 1986, in the office of the state attorney court house annex. Now do you remember that, sir? You looked does it refresh your memory? A Sure. Q I beg your pardon? A Yes, that is it. Q That's what you made, the statement, right? A Yes. Q All right. Now were you under oath, sir when you made this statement? A Yes. Q Remember the court reporter swearing you in and you swearing to tell the truth, correct? A Right, I think so. Q And, sir, in that statement which you made under oath back in September of 1986, did you tell the defense attorney on page eight of the deposition beginning at line one, did you tell the defense attorney after the officer was done and we are still talking about me and Mr. Holton and he lit a cigarette and turned around and told me that he was in there for murder? A I didn't write it down there. Q And continuing line five, question, did he tell you who it was that he was supposed to have killed? Your answer, just some young lady. Do you remember that? A If it's in there. Q On page eight line 17, counsel, do you remember telling the defense attorney in this deposition that him that meaning Holton and her the victim had went there and he was supposed to have had sex with her, do you remember that, sir? A Probably. Q And continuing on page 19 you remember telling the defense attorney that this took place at some house over there on Scott Street; do you remember that, sir? A Yes. Q Do you remember telling her over on page 11, counsel, that you asked him, I said man you're kidding right and he said no and then you asked him exactly what happened and then he told me again that he forced her to have sex and he put his hands around her throat. Do you remember telling the defense attorney that in this sworn deposition? A If it's in the deposition that's what I said. Q Over on page 12 of the deposition did you tell the defense attorney that he got gas at the Star Service Station and then burned the house? A Yes. Q Do you recall telling her that under oath? A Yes. Q Do you remember telling her that you contacted jail authorities so they could contact the Tampa Police Department and send a detective out to talk to you? A Yeah. Q And now Detective Noblitt came out there, sir, did he promise you anything in exchange for your statement? Did he make any promises in exchange for your statement? A There was no promise. Q Well -- A He knew what I wanted at the time. Q Well, what's your answer? Did he promise you anything or not and if so what did he promise you? A I wouldn't do no time. Q So he promised you that or is that what you asked for? A That he would help me, he could. Q You didn't discuss that earlier. You recall telling Detective Noblitt that you didn't want anything? A That's what you said. That's what's on the paper. Q Okay. A I told him what I knew he wanted to hear. Q So you told Detective Noblitt that you didn't want anything; is that right, that's what you said? A Yeah. Q He didn't offer you anything did he, sir? A Not, not in writing not that way. Q And on your charges, sir, you were originally offered a three year deal, right? A Right. Q But you rejected a three year deal and you pled open to the judge, right? A Right. Q So you didn't accept the three year deal, correct? A Right. Q You rejected that and pled open to the judge, right? A Yes. Q Then when you got to sentencing you got jail house, community control house arrest plus probation, right? A Community control house arrest and probation. I never took it all -- Q I couldn't hear you. A I wouldn't have never took all that there. Q On an open plea, sir, you took what the judge gives on an open plea, right? A Yeah. Q All right. A Open I wouldn't have taken an open plea like that though. Q And, sir, isn't it true that you testified at trial the trial Mr. Holton subsequently the same as you did when you told Detective Noblitt about the crime and when you gave that sworn deposition under oath to Ms. Morgan you said pretty much the same thing at trial, didn't you? A Yes, sir, pretty much. Q So three times, sir, the statement to Detective Noblitt, the sworn deposition, and the trial you stated the same thing, didn't you, sir? A Right. Q And at trial you were under oath too weren't you? A Right. Q Now, sir, how many times have you been convicted of a crime since 1986 when after you gave your testimony in Mr. Holton's case? A I think once. Q Only once? Would it refresh your recollection if I showed you your certified copies of judgment and sentences? A Sure. Q Sir, I'm going to show you some paper work and ask you if you recall being convicted of these crimes. After your testimony in 1986 were you convicted of this crime in 1987, sir, and I'm referring to case number 87-13647. A I don't remember. Q You don't remember that, sir? A No. Q All right. You're saying you weren't or you don't recall? A Yeah. Q All right. A In 1987 I just got out in '93. Q I'm talking about after the trial, sir. A That's what I'm saying. Q How about case number days 81-2062, do you recall being convicted of that offense, sir, that felony offense you don't? A Shook head in the negative. Q Okay. How about -- A I went to prison you know. Q All right. A I got out on in '93. Q All right, sir. Would you deny that you perhaps have been convicted more than once since the time of the trial, sir? A It's hard to say, you know, I don't think so. Q You don't just remember, right? A No. Q Okay. A I know sometimes in the '80's after the trial I got sentenced again and went to prison, you know. Q When were you released from prison, sir, last? A Last time I was released from prison? Q Yes? A '93. Q You had been in prison or jail since that time since '93? A Yeah, I was in prison at that time. Q Once you were released from prison have you been to prison or jail since then? A Since '90? Q Since '93? A No. Q All right. Now, sir, how long ago were you contacted in regard to this case to make a statement here today? A Um, about three weeks. Q Just three weeks ago? A About three weeks. Q Was the first time? A Yes. Q Nobody talked to you before that? A Nobody talked to me. Q Who came out to see you three weeks ago? A Um, a young man. Q Is he in the courtroom today? A Yes, sir. Q Which one is he? A Young man, blue shirt right there. Q In the front row? A Yes, sir. Q And did he ask you questions about this murder? A No. Q Okay. A He did not. Q I beg your pardon? A He did not. Q All right. Well did he come out to see you or did you contact him? A No, he was looking for me. Q All right, sir. A Because I'm homeless and he was looking for me and he was in the area that I be in and that's how he spotted me because my neighbor had told him. Q How long did you speak with him? A Um maybe roughly five, ten minutes. Q All right, sir. Did you ever talk to him or any other colleagues after that? A No. Q You only spoke one time for five to ten minutes? A Yes. Q Nobody since that time has spoken with you at all? A No. Q Before today? A Before today. Q Did somebody talk to you before you walked into court today? A Oh -- Q Do you remember that? A I'd be okay and to calm down, you know. Q Were you told, were you -- did you tell anybody else, sir, that you had not told the truth in the Holton trial? A No. Q So the only people you told are the folks who are here the defense to Mr. Holton today? A That's the only -- Q I'm sorry? A The only man that was here. Q The gentleman? A He found me. Q The person he identified? A That found me. Q Only you told? A Right. Q You never told anybody else that you had lied at this trial for the past fifteen years? A Nobody in the neighborhood. Q What did you discuss, sir, at that meeting? A What was discussed? Q What was discussed when you talked for ten minutes? A My name, Flemmie Birkins. Yes, you're a hard man to find, yes. Um, I am investigating you know for Rudolph Holton you know are you ready to come tell the truth. Q Well did he ask you whether you told the truth at trial? A Yeah, he did. Q All right and so he told you that you lied? A Yeah. Q That was the first time you had met this young man? A First time I met him. Q Never talked to him before in your life? A Never talked to him before in my life. Q So you were talking to him after five or ten minutes the conversation that you had you committed perjury under oath in a murder trial; is that what you're telling us? A Yeah. Q What do you for a living, sir? A Homeless. Q You're homeless? Where do you stay now? A I'm homeless. Q So you have no place to stay? A No, I'm homeless. Q Okay. Where did they find you, sir? A On the streets. Q Have you been promised anything in exchange for your testimony here today? A No. Q You have had contact with these folks over here by phone or by letter or anything like that? A No. MR. CHALU: Can I have just a moment, Your Honor? THE COURT: Sure. BY MR. CHALU: Q So in fact the evidence at trial you didn't have a deal did you because the charge that you pled to you pled open to the judge correct, sir? A Yes, sir. MR. CHALU: All right, thank you, Your Honor. THE COURT: Anything further of this witness? MS. MCDERMOTT: Briefly, Your Honor. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MS. MCDERMOTT: Q Mr. Birkins? A Yes, ma'am. Q You had worked with the police before; is that correct? A Yes, ma'am. Q You know how the whole system works, right? A Yes, ma'am. Q Convicted all those times? A Yes, ma'am. Q When you took the polygraph did you know, um, how to beat it? A Yes, ma'am. Q What did you take on the polygraph to make sure it came out accurate? A Take a relax pill to relax your total body. Q And you did that when you were given the polygraph? A Yes. Q Everything you told the police that Rudolph Holton allegedly told you was a lie, correct? A Yes. Q Everything you said in the depo that Rudolph Holton allegedly told you was a lie? A Yes. MS. MCDERMOTT: Thank you, Mr. Birkins, nothing further. THE COURT: Anything further? MR. CHALU: No, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, sir. THE COURT: You're excused, sir, thank you. Call your next witness. MS. MCDERMOTT: We're going to call Bernoris Smith. THE COURT: Come up here and you can have a seat in the witness chair, please. Raise your right hand, please. 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: Yes, 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: Bernoris Smith. THE COURT: Why don't you spell your first and last name for us. THE WITNESS: Bernoris, B-E-R-N-O-R-I-S Smith, S-M-I-T-H. THE COURT: You may inquire. Whereupon, à ÃBERNORIS SMITHÄ 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 Thank you. Ms. Smith, where do you reside? A Pardon me? Q Where do you live? A I live here in town on Harrison Street. Q How long have you resided at Harrison Street? A Thirty years. Q And what do you do for a living? A Child caretaker. Q How long have you been doing that? A About six years. Q In fact you're on break right now? A Mm-mm. Q Do you know a man named Donald Smith? A Yes. Q How do you know Donald Smith? A Well, I went to school he is my kid's father. Q Are you married to him? A Yes. Q How long have you been married? A About five, six years now. Q Okay. In 1986 was Donald living with you? A Uh-huh. Q He was living with you? A Yes. Q Do you know a man named David Pearson? A Yes. Q And does he have a nickname? A Pine. Q Pine? A Mm-mm. Q How did you know David Pearson? A We went to school together. Q High school or? A Grade school through high school. Q Now did you know Katrina Graddy? A Yes, I did. Q And how did you know Ms. Graddy? A Through high school, her sister and her brother and me we all went to school together. Q And did you and David Pearson and Katrina Graddy all live in the same area? A Uh-huh. Q And in June 1986, did there come a time when Ms. Graddy came to your house? A Yes. Q And who answered the door? A I did. Q What did Ms. Graddy want? A She asked for Big Donald and I had went to go get him so she could talk to Big Donald. Q So she was looking for your husband? A Uh-huh. Q Did Ms. Graddy speak to your husband? A Yes, I walked to him and told she wanted him. Q Were you present for that conversation? A Yes. Q What did Katrina Graddy tell your husband? A That David Pearson who is known as Pine he was, he told his name, told the police he was the one that was there with Katrina. Q What incident is he referring to? A Um. Q What do you mean? A The rape. Q The rape? A Mm-mm. Q So did she tell Donald that Pine had raped her? A Uh-huh. Q That Pine had used Donald Smith's name when the police came? A Yes. Q Was she scared Donald was going to get in trouble because Pine was using his name? A No, because Pine always used his name. Q Okay, she didn't know -- A She knew what Pine said to the police that he did it but she came to let him know that and whether or not he did it and I verified she said that. Q Okay. How did your husband Donald Smith react to that information? A Well, he said he was going to find him and he was going to straighten it out right there. Q And what happened next? A Excuse me, him and Katrina had left to go find him. I don't know, you know if exactly where they met up at with him. Q But did they find them? A No, they didn't. Q Now at some point after when Katrina came over did you eventually find out she had been killed? A Yes. Q How long did it seem between those dates that she came to your house that day and when she was killed? A It wasn't long a week, maybe a week or two. Q Now in 1986, Ms. Smith, did anyone speak with you about the information we just discussed here? A Yes. Q Someone did speak with you? A Well, not me but as we went start investigating they started talking to my husband first about what happened and -- Q The police spoke to your husband? A Yeah. Q Now did anyone from the defense Mr. Holton's attorneys or investigator come to talk to you about that information? A No. Q And had they come to you and talked to you and asked you to testify in Mr. Holton's behalf would you have done that? A Yes, if I knew. He didn't do it. I heard who did it, you know what I'm saying right out the horse's mouth you know I don't want to see nobody get -- you know. MS. MCDERMOTT: Okay, thank you, Ms. Smith. THE COURT: Wait just a second. He's going to ask you a few questions. Mr. Chalu, you may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Thank you. Now you're married to Donald Smith, ma'am? A Yes, sir. Q Your date of birth? A September 20, '54, September 20th, '58. Q September 20th, 1958? A Uh-huh. Q Where does your husband stay now, where does he reside? A Incarcerated. Q You know where? A Wakulla Institution. Q Florida State Prison? A Uh-huh. Q Have you ever been convicted of a crime, ma'am? A No, sir. Q All right. Now this person David Pearson was he known to you as Pine or just known around the neighborhood as Pine? A Known to me as Pine. David Pearson was known everywhere. Q All right. You went to school with him? A Yes, sir. Q You are married to Donald Smith? A Yes, sir. Q Okay. Now this incident that Katrina came to talk to you about was not, was about a rape, correct? A Correct. Q And how long before the murder was that? A About two weeks or two. Q Okay, and then you learned about a week or two later that Katrina had been killed correct? A Yes, sir. Q And you talked to your husband about that? A Yes, sir. Q And you say your husband told the police about this? A He told the police what Katrina told him. Q All right. Were you there for that, for that conversation? A No, I wasn't there. I was there when he was talking to her but I was standing back. Q Where did this conversation take place? A Right in front of my house. Q Of your house? A Mm-mm. Q Do you remember what police officer this was, ma'am? A No, sir. Q Do you remember if he was a uniform officer or was wearing a suit? A I believe uniform if I'm not mistaken. It's been so long now. Q Did he leave you a card or anything like that with his name on it? A He talked to him. He could left him one but I don't know. Q Do you know to this date who that police officer is? A No, sir. Q Was it Tampa Police or sheriff's office? A Tampa Police. Q Now did you also learn after Katrina was killed that this man over here Mr. Holton had been arrested for that murder? A Yes. Q All right. And you knew your husband had told the police about Pine raping her a week or two before the murder, right? A Yes. Q Now did you make any statements to the police, ma'am? A No, sir. Q Did you contact Mr. Holton's defense lawyer? A I don't know him personally. Q So your -- did your husband contact Mr. Holton's defense lawyer? A No, as far as I know no. Q So to your knowledge did your husband contact Mr. Holton's investigator? A No as far as I know I guess not. Q You didn't either, right? A No. Q Did you suspect that Mr. Holton was wrong the man? A When I heard I did. Q You did? A Nodded affirmatively. Q Then I ask you, ma'am, why your husband didn't come forward and speak to the defense in this case if you thought they arrested the wrong man for a rape and a murder? A Well, I don't know about that but as far as Katrina told Donald she called the police and told them so what was I supposed to do then? They were supposed to get the man that did it. MR. CHALU: Nothing further. THE COURT: Anything further? MS. MCDERMOTT: Yes, Judge. à ÃRE-DIRECT EXAMINATIONÄ Ä MS. MCDERMOTT: Ms. Smith, -- Your Honor, can I approach the witness? THE COURT: Go ahead. BY MS. MCDERMOTT: Q I want to show you a photograph and ask you if recognize that person? A That's him. Q Who is that? A David Pearson. Q Can you read what it says there on this line? Does it say Photo (b)? A Yeah. MS. MCDERMOTT: Thank you, ma'am. That's all Your Honor, and I'm sure we're up to this but this is -- MR. CHALU: State's Exhibit 26. MS. MCDERMOTT: I'll hand it with this Your Honor but just to mark it for identification. Thank you. Thank you, Ms. Smith. THE COURT: Anything else from this lady? MS. MCDERMOTT: No, Your Honor, she can be excused. THE COURT: You're excused, thank you. THE WITNESS: Thank you. THE COURT: Call your next witness. MS. MCDERMOTT: Carl Schenck. THE COURT: Mr. Schenck, if you'd step up here and have a seat in the witness chair, please, sir. 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: So help me God. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Carl Edward Schenck, S-C-H-E-N-C-K. THE COURT: You may inquire. Whereupon, à ÃCARL SCHENCKÄ 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. MCCLAIN: Q Mr. Schenck, do you recall testifying at Rudolph Holton's trial back in 1986? A Yes, I do. Q And at that point in time do you recall testifying regarding an incident that occurred in June of 1986? A Yes, I do.. Q Okay, and at that point in time in terms of the incident in June of 1986 do you recall what happened just not in detail but you were in a truck in front of a house that caught fire? A I was in a car. Q In a car? A A Toyota. Q Okay, and in the morning the police knocked on the window and woke you up? A Right. Q And you testified at Mr. Holton's trial regarding how you got to that location and the events of the night leading up to that, correct? A Yes. Q Now leading up to the trial do you recall the police wanting you to identify or wanting you to look at photographs of the black hitchhiker that you picked up that night? A Yes. Q Can you explain what happened in terms of that photograph situation? A Um, they called me in I don't know what it is in a debriefing area or booking area I think but it was an area there where they have the prisoners and maybe you know booking and stuff and there was a detective there. It was kind of a confined space coffee mugs here and that and I guess their work space and they sat the photos down and one of the officers came and said he had the photos and I that if I would take a look at them and see if anybody was recognizable. I picked out the one that I thought closely resembled him but never was absolutely sure. Q So you weren't sure that was the person? A Right, never absolutely sure. Q This was just a person of how many photographs were shown to you? A Six I believe. Q Was it on one sheet of paper or were they lose? A They were lose photographs. Q Of the six the one you identified was the one that looked most like? A Yes. MR. MCCLAIN: Okay, just a moment, Your Honor? THE COURT: Sure. BY MR. MCCLAIN: Q I'm going to hand you what has been marked as Exhibit Number 26 and ask you if you recognize that? A Yes, I do. Q And it's what four sheets of paper? A One, two, three, four, yes. Q And it has an affidavit is it not? A That's correct. Q Is that your affidavit? A Yeah. Q How did the affidavit come to be drafted; can you explain? A Well, the most recent testimony by the -- whoever was helping Mr. Holton I guess trying to come to the truth they came to ask me questions, Ms. Jeff came to the house and asked me about the case and stuff and we went over some of the statements that were made and um, he remarked that it was, you know at least consistent with my statement and everything and he brought up the part about me testifying of who it was that was picked. Q The person that was in the vehicle with you? A Right, and um asked me about how I identified him in the photo and everything and I said well, always said that they, you know, closely resembled him the best, you know and I described, you know that he had facial hair and looked like razor burns or complexion problem and he asked me if I recalled it well and then if I could remember him in my mind and what the guy looked like and I say I'm, you know, pretty sure about that one. I would have liked to have been shown a lineup or something at the time instead of looking at photos and he asked me, he brought out the photos for me to look at them and he said I'm going to cover up the names and that pertinent information at the bottom of it so you don't know which one is the, which one he showed me the two photos are in here. Q Okay. A I picked the one on my left which I believe is marked (b). Q Okay. Okay so he asked you to look at the photos? A This one right here. Q And this one that is the page, the last page of the affidavit; is that correct? A Yes, some yellow thing here. Q And that's the person that it looked to you? A Yes. Q Most like the person who was in your vehicle? A Right, right and the gentleman I picked before he was the closest one that I had picked back then. Q Right. A And then the officer were generally telling me, you know, I want to make sure, make the right choice now. I want you to choose, he wanted closure on the case and they wanted to make sure they got the right guy I guess and this one I picked out the best when Jeff showed me the photos there and covered them up and I said well, this gentleman here looks closer because of his facial hair and his complexion and his age. Q Okay. A This gentleman over here is too young. Q Okay. A He's much too young. I asked and after he showed me one of the pictures and after he realized that I, after I had chosen (b) which was on my left he showed me that was the one that they that, he thinks could possibly be the real one. Q In fact that photo has a date on them when the photographs were taken? A Here this one is 7-18-86 and the one more close to the date where I picked him out is was a couple days before the 22nd. Q It's what date? A June 19th, 1986. Q So about within a month? A Been a month each time yeah. Q Okay. And the person you recall had facial hair? A That's correct. Q And do you recall in terms of his teeth if he had any missing teeth? A No missing teeth. I told the police officer I thought he had a gold tooth or one of the photographs there was gold. Q Okay. A And that he said his name was Maurice. Q Okay, and was there a black bag? A Yes, there was. I didn't um, when I first picked him up I recall, I thought it was a towel but I guess it was a little black bag that the police officer found that was in the back seat of my car the next morning. Q Okay. Now just one last thing about this document. You swore to that document is the affidavit from you that, your statement and everything that is there you meant to say; is that correct? A That's correct. MR. MCCLAIN: Okay, Your Honor, actually I'll move it into evidence Exhibit 26. THE COURT: Any objection? MR. CHALU: No objection. THE COURT: It will be so received. Any further questions? Mr. Chalu, any questions? MR. CHALU: Just a couple, Your Honor. THE COURT: You may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Mr. Schenck, were you, were you ever asked to identify Mr. Holton at trial; do you remember that? A No, I was not. Q All right. A I mean I don't recall. Q Now when the officers showed you the group of photographs back in 1986 do you remember how many there were? A I believe there were six. Q Six photographs. And at any time did any of these officers or the detective who was there with you indicate to you in any manner which picture you should choose? A No, they never made it like they were pointing or they never made it clear my idea is they were trying to draw my attention to the photographs, you know. Q All the photographs? A Well I had at one time had picked up one and thought it was the one I eventually picked up. Q That would be? A A. Q Photo (A) State's Exhibit, Defense Exhibit 26? A Right, I picked it up and I put it back down and I said it could be but I'm not really sure. I believe the officer produced the photos on the opposite side of that particular picked it up and put it back down and he asked me to make sure, take your time be sure you're making the right decision like again I told him it was close as I can remember. Q He wasn't, he was asking you to make a positive I.D. and you weren't positive, sir? A No. Q Okay, he just wanted -- A He wanted me to make sure of my decision. Q Right and you told him you were not sure? A That's right. Q That he was out of the people that were there in the photos he was the closest one? A Closest one, yes. Q Do you recall back then seeing a picture of the man depicted in photograph (b) Defense Number 26, do you remember that picture? A No, I don't. Q Okay. And I believe you stated that you thought the photograph (a) was too young is that what you said, sir? A His features were young. He didn't have the facial hair and the speed bumps is what I call them rash that a black man gets when they shave sometimes the complexion area. Q Do you know the actual age of these two individuals, sir? A No, but the man I picked out to me he looked to be 31 or somewhere around. Q Which photograph (a)? A B. Q The one you picked originally, sir? A Yeah but I was asked to remember him in my mind and when I look back at that time when Jeff asked me I said I thought it was (b) was closer to the age. Q All right. You didn't make a positive identification at trial either, sir, did you? A I said I wasn't absolutely sure. Q All right, you can't make a positive identification now, can you? A He's the closest possible, closer than the other one. Q You're not sure that this is the man that committed the crime? A Not without seeing them. I'd like to see the person before me not a picture because there is not a lot there. Q When you saw Mr. Holton's picture which is picture (a) on the 26th you saw the picture within a very short time after the crime was committed? A Yes, the police officer, I said that he cleaned up and he agreed with me that he had cleaned up and they had to do everything they can to change his appearance. Q And you didn't see the picture depicted in (b) Defense Exhibit 26 until when, sir? A Until Jeff came to my house. Q When was that, sir? A The day of that the 16th. Q Of? A This month. Q Which would be approximately fourteen and a half years after the crime, sir? A That's correct. MR. CHALU; All right. I don't have any further questions, Your Honor. THE COURT: Mr. McClain? MR. MCCLAIN: Just briefly, Your Honor. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MR. MCCLAIN: Q Mr. Schenck, before you testified at the trial did either the police or the prosecutor say they had the right guy? A They made the statement that they had. MR. CHALU: Excuse me, Your Honor, I have an objection. I don't know who they is. BY MR. MCCLAIN: Q Clarify, could you? A The police officers. Q The police officers? A Yes. Q What was it that they conveyed to you? A They had the man in custody and, um, that they told me that he was a burglar and he had like a two or three hundred a day habit of cocaine and, um, they were pretty sure that was their man. Q And actually before you testified at the trial were there any other discussions in terms of the need of your testimony? A No, I guess the photo representation was enough for them, I mean -- Q Did they show you a photograph of the victim? A Um, during the time there was a state attorney, I can't recall his name for sure, um, Episcopo or something like that and he flashed out a picture of the lady that had been murdered in the nude and it was pretty awful stuff and said I don't want to see anything like that. I don't want to see it. I may have been a witness but I didn't have to see that. I was very repulsed at that. MR. MCCLAIN: Thank you, I have nothing further. THE COURT: Anything further? MR. CHALU: Just a few, Your Honor. à ÃRE-CROSS EXAMINATIONÄ Ä BY MR. CHALU: Q This incident where the police told you they had somebody in custody they thought he was the man this was after you had already made your selection of the photograph, correct? A Right I had. Q So it was after you already picked out the photograph? A Yes, sir. Q And you told them then that you were not sure? A They didn't tell me they had him in custody until I had picked out the photograph. Q Right and notwithstanding that you still testified at trial that you were not sure, correct? A That's correct. Q Just picked out the photograph? A That's correct. MR. CHALU: Thank you, nothing further. THE COURT: Thank you, sir. Can he be excused? MR. MCCLAIN: Yes, Your Honor. THE COURT: You're excused, you can step down. Call your next witness. MS. MCDERMOTT: Johnny Newsome. I think he's in custody. THE COURT: Well, we'll take a short break. We'll be in a fifteen minute recess. (Whereupon, court was in a recess) (Whereupon, court was back in session) THE COURT: 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: Put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Johnny Newsome, N-E-W-S-O-M-E. THE COURT: You may inquire. Whereupon, à ÃJOHNNY NEWSOMEÄ 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 Are you also known by the name of Georgia Boy? A Yes, I am. Q Do you know Rudolph Holton? A Yes, I know him. Q Did you testify at his trial in 1986? A Yes, I did. Q Now Mr. Newsome, did you see Rudolph Holton at the vacant house on Scott Street the night of the murder? A Yes, I did, no not at the night of the murder but I saw him at the house. Q On the night of the murder did you see Rudolph Holton at the vacant house? A No, I didn't. Q Now was there a night where you did see Mr. Rudolph Holton at the vacant house on Scott Street? A I never saw him that night. Q Okay. You did see him at the vacant house though? A I did see him at the vacant house. Q And do you recall how many days before that before the murder and in what relation to the murder that was when you saw him? A About, about three days ago I saw him. I walked by, past by the house and I was standing up by the door. Q This was three days before the murder? A Yes. Q Okay. And when you saw him there what was he doing? A Standing up there n leaning against the wall smoking crack. Q Did you talk to him? A Yes, I asked him to get me some and he didn't get me none. Q Now did there come a time when the police came to you and asked you if you knew Rudolph Holton? A Yes. Q And this was after the murder? A Yes. Q When was it? A After the murder. Q Did you tell the -- what did you tell the police when they first came to you and asked you if you knew Rudolph Holton? A They asked me, they took me down to the police station and they showed me a photo of him and asked me again if I know him and I said yes I know him and they asked have you seen him and I told him yeah, I saw him standing up by the house and they asked me um -- Q Did you tell them -- when did you tell them that you saw him at the house? A Um about three days before the murder. Q Now, Mr. Newsome, had you been in that house before on Scott Street? A Yes, I have. Q And to your knowledge were there quite a few people in and out of that house? A Yes. Q And what was that house used for? A Smoking crack. Q Now the day that you did see Holton when you walked by what time did you see him? A Between five and six o'clock. Q Now, Mr. Newsome at trial you testified that you saw Mr. Holton at the house at eleven p.m.; is that correct on the night of the murder? A That's incorrect. Q But is that correct that you testified that you saw him the night of the murder? A Yes, I did testify. Q And why did you testify that you saw him on the night of the murder at the house at eleven p.m.? A Well, um, I was um -- Q Was that true, Mr. Newsome? A No, that wasn't true. Q So you lied at his trial? A Yes. Q Now do you know a Katrina Graddy? A Yes, I know of her. Q You know of her? Did you see Katrina Graddy at the vacant house on Scott Street the night of the murder? A No, I didn't. Q Now Mr. Newsome, you told -- did you tell the jury that you saw Mr. Holton with Ms. Graddy at the vacant house on the night of the murder? You testified to that; is that correct? A No, that's incorrect. Q Did you testify that way at Mr. Holton's trial? A Yes, yes. Q That was a lie? A That was a lie. Q Did you ever see Mr. Holton with Ms. Graddy on the night before the murder? A No, I didn't. Q Had you ever seen them together at all? A No. Q Now why did you lie at Mr. Holton's trial? A Well, I was kind of bias and, um, kind of scared that they would probably look for me for something you know, Q You were afraid? A Yes. Q Now did you also lie to the police about seeing Mr. Holton at the house on the night of the murder? A Yes, I did. Q And in 1986 in that time frame did you -- what was your pattern as far as when you go home at night? A Go straight to the house, go straight to the house. Q Where did you live? A In Central Park. Q Central Park, what time did you usually go home at night? A Between eleven o'clock, eleven. MS. MCDERMOTT: Okay, but okay thank you, Mr. Newsome. THE COURT: Mr. Chalu? MR. CHALU: Thank you, Judge. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Mr. Newsome, when you first get up on the stand you told Ms. McDermott asked you if you saw Mr. Holton on the vacant, at the vacant house on the night of the murder and you said yes, didn't you? A No, I didn't. Q You changed it and said no, right? A No, I didn't. Q You don't remember that? A Yes, I remember. Q Okay, now do you remember speaking to the police in June of 1986 about this murder? A Yes. Q All right, do you remember where you spoke to the police? A Yes. Q Where? A At the police station. Q All right. How did you get there? A They was coming out through the path and they walked up to me and told me they wanted to talk to me, they want to talk to me and one of them knew my name. Q So you went with them, right? A Yes, I did. They told me that -- Q You weren't in jail at the time, were you? A No, I wasn't in no jail. Q No, do you remember the detective you spoke to, sir? A Not right offhand. Q Were they uniform people or were they in suits? A Suits. Q Two of them? A Yes. Q Did you tell them that you knew Rudolph Holton as Man? A No, I didn't. Q You didn't tell them that you knew Rudolph Holton as Man? A No. Q Man was his street name? A I never knew his street name. Q But you told him you knew Rudolph Holton, right? A Not at that particular time until they showed me a photo of him. Q So when they show you the photo did you recognize him? A Yes, I did. Q And how did you know him? A Because we practically raised up. Q What name did you know him by? A Holton. Q Holton? A Holton. Q You remember practically raised up together? A Mm-mm. Q So you knew him when you saw him, right? A And when I saw his photo. Q And he was around the same neighborhood you were around, correct? A What do you mean? Q Well, you would see him around the same neighborhoods that you were around, correct? A When we were younger. Q Now this vacant house on Scott Street that Ms. McDermott has asked you about you have been there yourself, correct? A I have. Q All right. And in fact you told the detectives, sir, that you had seen Mr. Holton at that vacant house on Scott Street on prior occasions on several occasions, didn't you? A No, I didn't. Q You're saying you didn't tell them that? A I can't, I'm saying I did tell them that. Q Let me ask you this, sir. Did the detectives promise you anything in exchange for your statement? A What detective promised me anything on what? Q I'm asking you if they promised you anything? A No, they didn't. Q They were just talking to you, weren't they? A I guess so. Q Okay, they weren't threatening you or anything? A They weren't threatening me. Q All right. But you admitted to -- do you remember telling them that you had seen Mr. Holton around that house? A Yeah, I remember called and telling them I had seen cene him up around the house. I do remember that. Q Do you remember telling them that you believed that Mr. Holton went in there to shoot drugs? A No, I never told them a statement like that. I told them I saw Mr. Holton smoking rock. Q All right. A I never told them he was shooting nothing. Q Did you tell the detectives -- well first of all did they show you a picture of the victim in this case Katrina Grady or Graddy? A Yes, they did. Q Did you recognize her too? A Not like in that condition, no. Q Well, not in that condition but did you know her before she was killed? A Yes, I know her, of her. Q From around the neighborhood? A Yes. Q You recognized her when you saw her? A Well on the picture? Q Well you know who we're talking about, right, you know she was the girl that was killed? A She ay was friends with my daughter. Q You knew she was the girl that was killed. A Yes, I knew that. Q Did you tell the detectives that you saw her and Mr. Holton on the east side of this vacant house on Scott Street on Sunday night, June 22nd, 1986? A No, sir. Q You don't remember telling them that or are you saying that you don't remember? A I'm telling you I didn't tell them that. Q You didn't tell them that, right? A That's right. Q Did you tell them that you said hello to him that night to Mr. Holton? A I didn't tell them nothing. I didn't see him that night. Q All right. Did you tell him that you saw him there with a black bag or a shaving kit? A Yes, I did state that. Q All right, so you're saying you didn't see him there but you saw him with a black bag? A I'm saying that and I'll state it again I repeat I told you I saw him around six o'clock, between five or six o'clock standing up in the front of the door. Q On what day? A On, um, I couldn't be too sure about the day. It was three days before the murder. Q Did you describe the shaving kit at the trial, sir? A I sure couldn't, all I know it was a little black bag. Q All right. You don't remember being shown that shaving kit at trial and identifying it as the shaving kit that Mr. Holton had in his possession on Sunday the 22nd of June? A No, I don't recall that but I recall that the police officer showed me the bag at the jail house. Q Do you remember being shown it in trial by the prosecutor for identifying it as the one that Mr. Holton had? A Um, the little black bag that hung on his shoulder, yes. Q Do you remember identifying that? A Yes. Q Do you remember identifying that bag as the one that Mr. Holton had in his possession? A Yes. Q Now the last time you saw Mr. Holton, sir, do you remember what he was wearing? A Nope. Q Well, did you tell the police the last time you saw him that he was wearing light shorts sleeve shirt and blue shorts? A No, I didn't tell them nothing like that. Like I said I didn't pay attention to his color. Q Now do you remember giving a deposition, sir, a sworn deposition or statement to Mina Morgan a female defense attorney who did an interview of you with a court reporter present and Mr. Episcopo, the prosecutor and the defense attorney Ms. Morgan present; do you remember an interview like that? A Yes. Q Okay. Do you remember being sworn, sir, to tell the truth? A Yes. Q Yes? A That's right. Q You were under oath, right, sir? A That's correct. Q All right. Do you remember telling on page five, counsel, do you remember stating in that deposition that you saw Mr. Holton together with the victim on Sunday night? A That was a lie. I never saw him there. Q Are you saying you didn't say it or are you saying it was a lie when you said it? A I never said it. I never saw him with nobody. Q You never said that? A No. Q Do you remember saying that they were standing in that vacant house both of them talking together standing next to the house? A They who? Q The victim and Mr. Holton? A No, I didn't say that. Q Do you remember telling the defense attorney at the same deposition on page eight that Mr. Holton was wearing a short sleeve shirt with a design on it like a circle with writing? A Sorry, sir, but I don't remember stating nothing like that. Q Do you remember seeing Mr. Holton wearing or ever wearing a shirt, white shirt with circles on it and writing in it? A I don't remember no kind, I don't remember no clothes he was wearing period. Q On page ten of the deposition, do you remember telling the defense attorney in this deposition that Mr. Holton and the victim were close together and that he was leaning on the wall on the side of the house of the vacant house standing up talking to her. Do you remember saying that, sir, under oath? A I did not say that. Q You did not say that? A No. Q Do you remember walking, telling them that you walked by and you said what's happening and they called you Georgia Boy? A That's right. Q Okay you remember that? A Yes, I remember that. Q You remember being called Georgia Boy? A Of course that's my name. Q Do you recall talking to Mr. Holton that night and he called you Georgia Boy? A No, I remember walking by and seeing him standing up in the door. Q You remember that? A I remember that. Q You said that? A Mm-mm. Q Is -- and then you remember, sir, finding out the next day that she had gotten killed? A Nope, sure don't. Q You didn't tell them that in the deposition, sir? A No, sir, I sure didn't. Q Do you remember being questioned by some detectives about this offense just like we talked about? A Yes. Q And do you remember stating in the deposition that you told the detectives the very same thing that you told the defense attorney in this deposition, do you remember saying that? A Excuse me, to be more specific I don't understand what you're talking about. Q In this sworn statement you gave to the defense attorney with the court reporter do you remember telling the defense attorney that you gave the very same statement to the detectives that you were giving here; do you remember that? A No. Q Do you remember telling them that in deposition on page thirteen that you saw Mr. Holton with a black bag on Sunday night, the night before the murder? A Like I said before and I indicate again I never said I saw Mr. Holton that night. I didn't see him that night. I saw him and I'll repeat between five o'clock, between five and six o'clock. Q On what night? A I don't want remember the date but it was three days before the murder. He was standing and I kept going back to my business. Q Do you remember them asking you in the deposition page 26 whether you had, whether you knew a person by the name of Carrie Nelson? A Who? Q Carrie Nelson? A I don't know that. Q You didn't know Carrie Nelson? A No. Q You never talked to Carrie Nelson? A Carrie Nelson? Q Carrie Nelson? A I don't know Carrie Nelson. Well, I know Carrie. Q All right, did you ever talk to Carrie? A Yes. Q Did you ever talk to her about this offense? A No. Q You remember testifying at Mr. Holton's trial, sir? A Sir? Q Do you remember testifying at Mr. Holton's trial? A Yes, I remember testifying at trial. Q Do you remember being sworn to tell the truth? A The whole truth and nothing but the truth. Q All right. That's what you did? A That's what I did and doing it now. Q Well, did you swear to tell the truth back in 1986 when you testified at Mr. Holton's trial, sir? A Yes, I did. Q You were under oath then, right, sir? A Yes, I'm under oath. Q Do you remember how many times you have been convicted of a crime, sir, at the time of the trial? A Um, I don't think, no, I don't think that's really relevant right now. THE COURT: Whether you think it's relevant or not answer the question. THE WITNESS: No, I don't. BY MR. CHALU: Q All right. Page 352, do you remember telling them that you had been convicted of felonies three times at the time you testified, sir? A Who? Q You said you had been convicted of a felony three times at the time of this trial; do you remember that? A No, I don't remember that. Q Do you remember whether that's true or not? A I know it's not true. Q It's not true? You hadn't been convicted of three felonies at the time of the trial? A I had been convicted of a felony but not all three felonies. Q Well how many have you been convicted of, sir? A I don't remember. Q Why is that? A Why should I? Q Well, is it too many to count is that the reason you don't remember? A Maybe. Q Maybe? Now do you remember testifying at the trial on page 353 of the transcript that you had absolutely nothing against Mr. Holton? A That's right. Q No fights? A Never had. Q Okay. So you had no reason to lie? A That's right. Q Against Mr. Holton did you, sir? A That's right. Q And do you remember also, sir, that nobody ever gave you anything in exchange for your testimony did they? A That is correct. Q Nobody promised you anything? A Nobody promised me nothing. Q Nobody threatened you at all, right? A That's right. Q You had nothing against Mr. Holton no reason to lie against him? A That's correct. MR. CHALU: Nothing further, Your Honor. THE COURT: Anything further of this witness? MS. MCDERMOTT: One moment, Your Honor. THE COURT: Sure. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MS. MCDERMOTT: Q Mr. Newsome, when you spoke to the police did you have an outstanding charge? A Excuse me? Q When you spoke to the police originally did you have an outstanding charge? A No. Q Had you been charged with a crime at the time that you spoke to the police? A Um, no. Q Okay, and um -- A I had a charge but it was taken care of. Q So when you spoke to them though you had a charge? A I was on probation. I was on probation. Q Okay and, Mr. Newsome, so the bottom line did you see Rudolph Holton with Katrina Graddy on June 22nd 1986? A I keep saying no, I never saw Rudolph Holton with Ms. Graddy. Q Now, you didn't lie because you have a grudge against Mr. Holton, right? A That's correct. Q Why did you lie? A Well, I was scared because the police I thought they were going to get me for something, some for things I be doing out there. MS. MCDERMOTT: At that time -- okay, thank you. MR. CHALU: Just one question, Your Honor. THE COURT: Go ahead. à ÃRE-CROSS EXAMINATIONÄ Ä BY MR. CHALU: Q Well, aren't you scared today, sir? A For what? Q Well, if you were scared to not cooperate with the police then how come you're not scared to not cooperate with the police today? A I am willing to cooperate with the police. What is the problem? Q All right. You were willing to do that back in 1986, sir, weren't you? A I am willing to do that now. THE COURT: Anything else? MS. MCDERMOTT: No, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: May he be sent back to his place of incarceration? MS. MCDERMOTT: Yes, Your Honor. THE COURT: All right, Madam Clerk, if you would write on the docket to release him back and let them know back there when you take him back to where he came from. Call your next witness. MS. MCDERMOTT: We would like to call George Dewey Smith. THE COURT: George Dewey Smith. Mr. Smith, if you'd step up here and have a seat in this witness chair, please. Go ahead and have a seat. 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: Yes. THE COURT: Okay, you can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: George Smith, S-M-I-T-H. THE COURT: You may inquire. Whereupon, à ÃGEORGE SMITHÄ 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 Mr. Smith, do you live in Tampa? A Yes. Q Do you know Donald Smith? A Yes, I do. Q How do you know Donald Smith? A Grew up together. Q You grew up together? A Yeah. Q In 1986 okay, I'm sorry, strike that. Do you know David Pearson? A Yes. Q How do you know -- does he have a nickname? A Pine. Q Pine? A Yeah. Q How do you know David Pearson? A All of us grew up together in the same neighborhood. Q Okay. Did you know Katrina Graddy? A Yes, I did. Q How did you know Ms. Graddy? A All of us stayed in the same area. Q Now do you remember when Ms. Graddy was killed? A Yes. Q And after you learned that Ms. Graddy was killed did you have a conversation with Donald Smith about the murder? A Yes, I did. Q What did Donald Smith tell you? A He said that Pine had told him that he had did it and he had told me. Q Okay, and after you learned of that did you go and talk to David Pearson about this your friend Pine? A Yes, I asked him about it. Q How did he react? A He didn't say nothing he just walked away. Q He didn't deny it? A He didn't say nothing. He just walked away. Q Now you have known David Pearson your whole life, correct? A Yes. Q And after Katrina Graddy's death did you notice anything different about Mr. Pearson? A He wasn't never the same. Q What do you mean by that? A Well, he started doing drugs. MR. CHALU: Judge, excuse me, I can't hear the witness. THE COURT: He started doing drugs. You have to speak up a little bit, sir. THE WITNESS: He started doing drugs and he never was the same anymore. BY MS. MCDERMOTT: Q Okay. Mr. Smith, I'd like to show you, I'd like to show you this photograph and can you tell me who this individual is in the photograph? A David Pearson. Q Can you just read this right here what it says? A Photo. Q Photo (b)? A Yes, photo (b). MS. MCDERMOTT: For the record this is the Defense Exhibit Number or has it already been moved into, it's already been moved into evidence as Exhibit Number 26. Thank you, Mr. Smith. THE COURT: Did it come into evidence through, wait just a second, Mr. Smith. MS. MCDERMOTT: Through Mr. Schenck I believe. THE COURT: Okay, just want to make sure. He has a few questions for you. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Hi, Mr. Smith, let me ask you just a routine question. Have you ever been convicted of a felony before? A Yes, I have. Q How many times? A Once. Q Once? Now you know Donald Smith, right? A Yes. Q And also David Pearson, right? A Yes. Q You all grew up together? A Yes. Q Now as I understand it Donald Smith told you that Pine had told him? A Yeah. Q That he committed the murder? A Yes. Q Pine never told you that he committed the murder, did he? A No, he didn't. Q Sir, what do you do for a living? A I work at Sonny's Barbecue Pit in Brandon. Q All right, sir. When were you first contacted about this case? A Well, they had been trying get me for a long time. They was trying to talk to me a long time but I was never around. Q All right. Who is they? A I guess what his name I can't remember his name. Q An investigator? A Yes. Q Okay. Since what time within the last few months, a year or what? A Couple years back up until now. Q When did you first speak to the gentleman regarding this case? A Yesterday. Q Yesterday? A Yes. MR. CHALU: Okay, thank you, sir. THE COURT: Any further questions of this witness? MS. MCDERMOTT: No, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: You're excused, sir. Call your next witness. MS. MCDERMOTT: Debra Williams. THE COURT: Debra Williams. Ms. Williams, if you'd step up here and have a seat in the witness chair, please, ma'am. 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: My name is Debra Ann Williams, W-I-L-L-I-A-M-S. THE COURT: You may inquire. MS. MCDERMOTT: Thank you, Judge. Let me find an exhibit real quickly. THE COURT: All right. Whereupon, à ÃDEBRA WILLIAMSÄ 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 Ms. Smith, where do you live? A I live in Tallahassee, Florida. Q And what is your occupation? A I'm currently a staff assistant with the Office of Capital Collateral Counsel for the Northern Region. Q How long have you been working with the office of CCR? A Total? Q Right now? A Since October of 2000. Q And prior to your most recent employment with the agency did you work for the Capital Collateral as a representative? A Yes, I did. Q In what capacity did you work with them? A I worked as an investigator beginning in September of 1996. Q Okay. A Then the agency was split into three separate regions and I went to the Tampa office and that was in September of 1997. Q Okay, and you continued to work for the office at that time? A Right. Q As an investigator? A Yes. Q Do you know -- are you familiar with the Rudolph Holton case? A Yes, I am. Q How are you familiar with his case? A I was assigned that case when I was an investigator with CCR. Q And what were some of your responsibilities as an investigator on the case? A To collect and review records and then also to do investigative work which includes interviewing witnesses. Q In the process of reviewing records did at one point were you asked to review the state attorney's file for Flemmie Birkins? A Yes. Q And who was Flemmie Birkins at Mr. Holton's trial? What role did he play? A The file reflected that Mr. Birkins was a jail house snitch who provided information in exchange for a lighter reduced sentence. Q And in the process of reviewing that file -- I'm sorry, did you review the file regarding Mr. Birkins' charges that were pending at the time of Mr. Holton's trial? A Yes, I did. Q When you reviewed that file did you locate any guideline sentence score sheets? A Yes. MS. MCDERMOTT: I'd like to show you an exhibit marked as Exhibit Number Nine. MR. CHALU: Can I see that, Counsel? BY MS. MCDERMOTT: Q I'm sorry. Ms. Williams, I'd like you to review that document for a moment. A Okay. Q Does that document look familiar? A Yes, it does. Q What is it? A This is the score sheet for Flemmie Birkins on a burglary charge. It was a charge that he had pending at the time that Rudolph Holton was arrested for. Q Were there any other score sheets in that file regarding Mr. Birkins' charges from June of 1986? A No, not from June of 1986. Q Okay. I want to ask you about a man named Willie Dan Simmons. Are you familiar with that name? A Yes, I am. Q And to your recollection how is Mr. Simmons involved in Mr. Holton's case or who is he? A From the file I gathered that he was a friend of Carrie Nelson. Q Okay, Carrie Nelson, who was Carrie Nelson? A Carrie Nelson was one woman who lived in the area at the scene of the murder who told the police that she had seen Mr. Holton entering the residence. Q Did she testify at Mr. Holton's trial to your knowledge? A I do not recall. Q Now did you determine that you wanted to speak to Mr. Simmons? A Yes, I did. Q And what information did you have about Mr. Simmons -- what kind of identifying information did you have about him? A Um, I knew he lived somewhere in the area within probably Central Park. That he was known as Sissy Dan and that he was somewhere between 45 and 50 at whatever time this case was coming to trial. Q When you he lived in Central Park could you explain what is Central Park? A Central Park is a housing project located near or sort of downtown Tampa. Q Now how did you go about trying to locate Mr. Simmons? A Um, first I did a run using data base technology, auto track system which provides information that is gathered from public records so you know instead of going to various agencies trying to call information as where a person maybe located or prior addresses it just kind of gives it all to you just by logging into their system and then it gives you the information. Q And what results did you achieve by using that system to try to find Mr. Simmons? A Um, I got some hits but nothing that was a sure hit. I mean, there are -- you get addresses but there are dates that are attached so you can't be sure that you will be what the likelihood is that you will actually find that person at that address. Q Okay. What did you decide to do next? A Decided that I would go to Central Park and take a look around and go near where Carrie Nelson lived because I knew that Mr. Simmons at least at the time of the crime had been living somewhere near there as well and that I would go see if maybe there might be somebody around who might know where I could find him. Q Okay. Then what happened when you did that? A I drove around, um, saw some people outside. I was actually then on Scott Street. I parked the car and got out and walked up to this group of men and said, do you know Sissy Dan and they said, yeah, and I said do you know where I can find him and said he lives right here. Q So where was that? A They were pointing to a building and a corner I believe was like in sort of this sprayed paint penciled sort of 1239 Scott Street. Q Where was Dan Simmons, where was Dan Simmons when you spoke to him in proximity to where Carrie Nelson lived at the time of Mr. Holton's trial? A He said he was just maybe like across the street and down like a block or two. Q Okay, I think -- A Where he was living at that time, at the time of the murder. Q At the time of the murder I was living, he was not living at 1239 Scott Street? A Correct, I think he moved at some point. Q But when you spoke to him he was living at 1239? A Yes. Q Is that all in the same area? A Yes. Q Now did you interview Mr. Simmons? A Yes, I did. Q What did you learn from Mr. Simmons? A That he was with Carrie Nelson the night that this incident occurred. That they saw Mr. Holton walking along the street passed Carrie Nelson's house and Mr. Simmons said that he was headed towards the hole. Q What is the hole? A The hole is an area that was known for I think drugs sales. Q Okay and what else did Mr. Simmons inform you about that night? A Well, he said that he saw Mr. Holton but they saw Mr. Holton pass the house at about nine a.m., excuse me, nine p.m. and am I talking too loud for you, okay and um that they did not see Mr. Holton anymore that night and that he did not leave Ms. Nelson's house until 4:30 a.m. Q Okay and did he also tell you anything about the next morning? A Yes. Q What did he tell you about the next morning? A He got up the next morning. He was headed over to Carrie Nelson's house. He saw the police cars and, you know, guess saw what probably was this crime scene of course, you know if you've ever been to a fire scene and he went to Ms. Nelson and she told him that you know she had finally found a way to stop Rudolph from stealing from her and that she had told the police that she had seen Mr. Holton enter the house that night. Q What was Mr. Simmons' reaction when he heard that? A Um, he told her that, you know, she was lying and they had an argument and so he -- but he went over and tried to tell the police officer that Carrie Nelson was lying when she said that she saw Rudolph Holton enter that house. Q Okay. Did you ask Mr. Simmons if someone had come to speak to him someone from Mr. Holton's defense team at the time of trial if someone had come to talk to him at that time? A Yes, I did ask him. Q What was his answer? A He said no one came to see him. Q Did he tell you that he would be willing to testify for Mr. Holton? A Yes. Q One last thing when you were working as Mr. Holton's investigator did you attempt to find Flemmie Birkins? A Yes, I did. Q How did you do that? A I also ran data base technology auto track program looking for Mr. Birkins and it had two different spellings because I wasn't sure if F-L-E-M-N-I-E was the correct spelling. Q Okay. Did you have any luck finding him? A Didn't get anything that was near. I prompted that date that would, you know, led me to believe it would be easy to go and pin point an address for him at that time. Q Okay. Was there anything in the file similar to Mr. Simmons that you thought was fruitful to attempt to locate him other than the data base search? A Yes, just, um, in terms of an address or just why I would want to find him? Q No, in terms of an address or more, you know an address? A No, um, you know at the time I mean it just various addresses and it was just really hard to pin point with Mr. Birkins actually given his criminal record it was a number of addresses so it's kind of, sort of, it was going to take a lot of time to try to find him because he could have been almost anywhere. MS. MCDERMOTT: Okay, thank you, MS. Williams. THE COURT: Mr. Chalu, any questions? MR. CHALU: Just a couple. THE COURT: You may inquire. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Did you examine the file and all the police reports in the Rudolph Holton case in this particular proceeding? A For this trial? Q Yes, ma'am. A Yes. Q Did you find any police reports where Mr. Simmons gave a statement to the police? A No. Q Okay. So if there's no police report made of Mr. Simmons statement to the police then defense counsel would not have had that statement, correct, if in fact one was never written, correct? A I would assume that you would be correct, yeah. Q And if a police report was never written regarding Mr. Simmons' statements the prosecutor would not have had such a statement either in his possession, correct? A If it was never written. Q Yes, well you examined the file and found no such statement, correct? A You know at this point, you know, I don't recall that. Q So you're not sure? A It's been a while since I've looked at the file. Q You were mentioning running auto tracks. Do you how long auto tracks have been in existence? A No, I don't know how long they have actually been in existence. I know that they were in existence when I became an investigator. Q Which was what year? A 1996. Q So you don't know whether they were in existence 1986? A No, I don't. Q Now when you interviewed Mr. Simmons he told you that he and Carrie Nelson saw Mr. Holton on the street on the night of the murder at about nine p.m., Correct? A Yes, correct. Q That was Sunday June 22nd, 1986, right, the night of the murder? A Yes, the night of the murder. Q Regardless of the date it was the night of the murder? A Correct. Q Do you recall talking to Carrie Nelson? A I did not speak to Carrie Nelson because I believe she was dead by the time I got on the case. Q All right. Now Mr. Simmons has also died since you spoke to him, correct? A Yes. Q So he's not available to testify here, correct? A Correct. Q Either is Ms. Nelson? A Right. Q Do you recall Mr. Simmons telling you when he left Carrie Nelson's house that night, the night of the murder? A He said he left the house around 4:30 a.m. Q 4:30 a.m.? A Yes. Q Do you recall Ms. Nelson mentioning that she had gone to bed early that evening? A I'm not sure exactly. I mean, at this point I haven't a chance to review the files so I'm not exactly sure what her statement was. Q Okay. Did you ask Mr. Simmons where in Ms. Nelson's house he was until four o'clock in the morning on the 23rd? A He did mention that they had been sitting out on the porch. Q Okay. Did you get specific with him about whether he was on the porch the whole time he was there? A I don't remember, I may have. Q Okay, so you don't know whether at some point he might have gone into the house according to his statement? A He didn't tell me that he had gone in the house. Q I beg your pardon? A I don't recall him telling me he had gone into the house but, um, I mean he said he was with Ms. Nelson. Q All right. But you don't know whether they were out on the porch the whole time until four o'clock in the morning when he left or not, right? A No, I don't. Q Correct and since they saw Mr. Holton in that area -- by the way that area is near Scott Street house is it not where this homicide occurred? A Which area? He said that they saw him heading towards the hole and actually, um, my understanding is that the hole is located -- you're on Scott Street it's closer to The Red Top Bar. Q Right, it's all within walking distance from each other, right, The Red Top Bar? A Sure. Q Scott Street? A Absolutely. Q Carrie Nelson's house and Carrie Nelson's house was very close to this Scott Street house where this murder occurred, correct? A Yes. Q In fact you can see that house from Carrie Nelson's -- A Right. Q -- house, correct? So Mr. Holton was seen in the area of Carrie Holton's house, I'm sorry, Carrie Nelson's house and the house where the murder occurred at nine p.m. that night, right? A He was walking in the direction towards the hole which was away from that house. Q But he's in the area at nine o'clock, right? A Certainly. Q And since we don't know whether Mr. Simmons was outside the hole the whole time watching the neighborhood he could not tell you for sure whether or not Mr. Holton ever went into that house later that night, correct? He couldn't tell you that, right? A Right but he did say that, you know, I mean Ms. Nelson apparently had not given him any reason to think she had actually seen Mr. Holton. Q Well, but Mr. Simmons, but Mr. Simmons since we don't know whether Mr. Simmons was outside watching, watching the Scott Street house where the murder occurred the entire time he was there until four a.m. we don't know whether or not Mr. Holton could have gone in there without him Mr. Simmons seeing him, right, it could have happened? A It's possible. MR. CHALU: Okay, nothing further. THE COURT: Anything further? MS. MCDERMOTT: Yes, Your Honor. à ÃRE-DIRECT EXAMINATIONÄ Ä BY MS. MCDERMOTT: Q Ms. Williams, I would like to show you and look at an exhibit marked for identification as Defense Exhibit Number 27. Can you tell me what that document is? A This is the death certificate of Carrie Nelson. Q What is the date of the death that is reflected on that document? A June 15th, 1992. MS. MCDERMOTT: Okay, I'd like to, I'm sorry, I'd like to move it into evidence. MR. CHALU: No objection. THE COURT: It'll be so received. What number is it? THE CLERK: Twenty-seven. THE COURT: Twenty-seven, okay. BY MS. MCDERMOTT: Q I also you to look at Exhibit Number 23 which has already been introduced into evidence. Can you identify this document for me? A It's a deposition of Carrie Nelson. Q As an investigator for Mr. Holton did you review the information in his files? A Yes. Q Do you recall reading this deposition? A Yes. Q I'd like to point to page number twelve of this deposition and during this deposition did Ms. Nelson mention that Willie Dan Simmons was on the porch with her the night of June 22nd, 1986 and I think it continues onto page 13? A Yes, she does. Q Okay. I'd like you to look at another exhibit and it's already been admitted into evidence as Exhibit Number 12 and I'd like for you to look at the second page and there's some handwritten notes. Could you and I'm going to point to this area what is that notation say? A Willie Simmons, 47 years of age. Q Okay. Ms. Williams, when you spoke to Mr. Simmons he told you he confronted Ms. Nelson about her statement; is that right? A That's correct. Q And did Ms. Nelson explain to him why she made the statement she did? A Yes. Q What was her explanation? A She wanted to stop him from stealing from her. Q Who is him? A She wanted to stop Mr. Rudolph from stealing from her. MS. MCDERMOTT: Okay, thank you. THE COURT: Any further questions, Mr. Chalu? MR. CHALU: No, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: You're excused, ma'am. Call your next witness. MS. MCDERMOTT: Can I have one moment, Your Honor? THE COURT: Sure. MS. MCDERMOTT: Darrell Jackson. THE COURT: Darryl Jackson. Mr. Jackson, if you'd step up here and have a seat in the witness chair, please. 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: Okay, you can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Darryl Jackson, J-A-C-K-S-O-N. THE COURT: You may inquire. Whereupon, à ÃDARRYL JACKSONÄ 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 Good afternoon, Mr. Jackson. A Good afternoon. Q Mr. Jackson, what is your current occupation? A Investigator for the Capital Collateral Regional Counsel Tampa, Florida. Q Was this your occupation in 1998? A Yes. Q While working for Capital Collateral Counsel were you assigned to assist in the investigation of the Rudolph Holton case? A Yes, I was. Q And in the first half of 1998 do you recall what the procedural posture of the case was at that time? A It was in the 3.850 process. Q Okay. We had a 3.850 date deadline? A Yes. Q Now, in preparing the file on Mr. Holton's 3.850 did you consult with the attorney on the case about what types of investigation you should do? A Yes, I did. Q And do you recognize the name Donald Lamar Smith? A Yes. Q How do you recognize that name? A Donald Lamar Smith's name when I researched the files the police reports his name was mentioned on them. Q Okay. I'd like to show you what's been previously been marked and entered into evidence as exhibit eighteen. And this is a police report dated June 23rd, 1986 authored by Officer Wallace. Do you remember reviewing that report during, while we were preparing the 3.850? A Yes. Q Okay, I'd like you to take a look at page two of that report and is there a note on that report that refers to a Donald Lamar Smith? A Yes. Q Okay. Does that note indicate that Donald Lamar Smith seemed to have some knowledge about the crime? A Yes, it did. Q Is that why you wanted to go see Donald Lamar Smith? A That's correct. Q Did you locate Donald Lamar Smith? A Yes. Q Did you locate him at a house on Harrison Street? A Yes. Q Was your it understanding that this was the house he was living in 1996? A Yes, ma'am. Q And did Mr. Smith speak to you? A Yes, he did. Q Okay. Now did there also come a time when you wanted to interview a man named Willie Dan Simmons? A Yes. Q And we had already -- somebody from CCR had already interviewed Mr. Simmons was that your recollection? A Yes. Q And we wanted to go or why did you go back to interview him then? Did we just want to confirm some of the information that he had previously given? A Yes. Q And where did you find Mr. Simmons? A I ran his name on auto track and came up with an address where he was living in that area. Q Okay. And did you go interview Mr. Simmons? A Yes, I did. Q Did Mr. Simmons provide you with some information about the night of the crime? A Yes, he did. Q Okay. What information did he relay to you that he had knowledge about? A He had knowledge of he saw Mr. Holton earlier that night and the following day after the murder happened and maybe Ms. Nelson. Q Correct. A They got in an argument because she stated she told the police officer that Mr. Holton was in the area and he was like, well, you're lying because you didn't see him because we were together all night so why would you tell him this? Q But they did see Mr. Holton walk by? A Yes. Q But he was telling her that she didn't see him go into the house when she told them, she had told the police then? A Yes. Q Did -- after they had that confrontation did he tell you what Carrie told him was her reason for telling the police that they saw Rudolph go into the house? A Her reason was Rudolph had recently stolen some items from her house and she wanted to get back at Mr. Holton. Q Okay. Did he mention anything about his health to you? A At that time, um, Mr. Simmons stated that it would be best if we got back in contact with him as soon as possible because at the time he wasn't, his health was deteriorating. Q Okay. And are you aware of what happened next as far as the court pleadings went and what we did in the case? A I relayed that message to the attorney and we filed for a motion to do a depo on Mr. Simmons. Q Okay. And at some point were you directed to go and find Mr. Simmons to set up the time where we could take the deposition? A Yes, I was. Q And what did you learn? A At that time I found out that Mr. Simmons was deceased. Q Okay. Mr. Jackson, I would like to show you a document marked for identification as Defense Exhibit 28. Do you recognize this document? A Yes, I do. Q What is this document? A It's a death certificate of Willie Dan Simmons. Q Can you tell me what the date of death was? A August 20th, 1998. MS. MCDERMOTT: Okay, thank you. I'd like to move this into evidence, Your Honor. THE COURT: Any objection? MR. CHALU: No, Your Honor. THE COURT: It will be so received. BY MS. MCDERMOTT: Q Mr. Jackson, in the course of your investigation did you attempt to locate a nam named Flemmie Birkins? A Yes, I did. Q How did you go about trying to locate Mr. Birkins? A I also ran his name on auto track which I didn't come up with anything but his mother's address. Q Okay. Did you go see his mother? A Yes, I finally found her in a retirement home. Q Okay. She hadn't seen Flemmie in a long time, correct? A No, she hadn't seen him. Q Did you also check the Hillsborough County Jail? A Yes, I did. Q When you spoke to his mother did you, did you obtain any information about what Mr. Birkins status was at the time you were looking for him? A At that time his mother said he was homeless. Q Okay. A She didn't have any address for him. Q Okay. Did you ever locate Mr. Birkins? A No. MS. MCDERMOTT: Thank you, Mr. Jackson. THE COURT: Any further questions of this witness? MR. CHALU: Just a second, Your Honor. THE COURT: Sure. à ÃCROSS-EXAMINATIONÄ Ä BY MR. CHALU: Q Mr. Jackson, did you have an opportunity to review the file in this case Rudolph Holton's case? A No. Q Did you review the deposition of Carrie May Nelson? A Yes, I have. Q All right. Do you recall and I'm referring to page 15, counsel. I'm going to show you a copy just to refresh your memory on page 15. Draw your attention to lines 13, 14 and 15 and 16. Would you read that, sir? A You can be assured -- Q No, just read it to yourself. That seems to indicate that Ms. Nelson's statement in her sworn deposition that when she saw Mr. Holton going in the house that he was not with the victim? A Yes. MR. CHALU: Okay, thank you, nothing further. THE COURT: Anything further of this witness? MS. MCDERMOTT: Nothing further, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, sir. THE COURT: You're excused, sir. Call your next witness. MS. MCDERMOTT: Janita Whitehead. THE COURT: Janita Whitehead. Ma'am, if you'd step up here and have a seat in the witness chair right here, please. 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: Yes, 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 Janita Whitehead, W-H-I-T-E-H-E-A-D. THE COURT: You may inquire. Whereupon, à ÃJANITA WHITEHEADÄ 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 Thank you, Your Honor. Ms. Whitehead, what is your occupation? A I'm an investigator with Capital Collateral Northern Region. Q And within the past few weeks have you been assigned to assist a defense team in representing Mr. Holton? A Yes, ma'am. Q And have I asked you to do some investigation for us? A Yes, ma'am. Q Okay. Are you familiar with the name Renetta Johnson? A Yes, I am. Q Okay. What is your understanding of who Ms. Johnson is? A I first saw Ms. Johnson's name in a police report. She was a person who was at the time the victim was not known she was reported missing at the time they were trying to find out, I guess what, who the victim was. She was reported missing by her mother and she was someone who said she was on Scott Street the night of the crime. Q Okay. Ms. Whitehead, I would like to show you what has been marked for identification as Defense Exhibit Number 29. Is this the police report that you are referring to regarding information on Renetta Johnson? A Yes, ma'am. MS. MCDERMOTT: Okay, I would like to move this into evidence, Your Honor. THE COURT: Any objection, Mr. Chalu? MR. CHALU: No, Your Honor. THE COURT: It will be so received. BY MS. MCDERMOTT: Q Ms. Whitehead, so it was from your understanding from this report that Renetta Johnson was in the area the night of June 22, 1986? A Yes, ma'am. Q And in that report did she tell the police officer that she saw several individuals in the area of the Scott Street house? A Yes, ma'am. Q Okay and what efforts did you take to find Ms. Johnson? A Well, um, I ran an auto track report which is a data base that uses credit information driver's license bureau information, land transactions, vehicle investigations and probably a few other sources I can't enumerate right now but and they provide identifying information on people and addresses. I was unable to locate her with the information that they provided. Q Did you find Renetta Johnson's mother? A Yes, ma'am. Q Did you speak with her mother? A Yes, I spoke with her mother. Q Did her mother know where her daughter was residing at this point? A No, her mother indicated that they were estranged and she had no idea where her daughter was living. Q Did you also look at the county jail the web cite for the county jail? A Yes, ma'am. Q Was Ms. Johnson residing at the county jail? A No, ma'am. Q Did you also go to the Tampa post office, post office -- well on the auto track did it indicate that there was a post office box associated with Renetta Johnson? A Yes, ma'am, there was a post office box that was listed as her address on her driver's license here in Florida. Q Okay, and did you try to determine what her street address was by going to the post office and asking them if they had any better information? A Yes, ma'am. Q Okay, and did they have any other information on Ms. Johnson? A No, ma'am, they gave me an address that I had already checked and Ms. Johnson did not live there. Q So ultimately did you ever have the opportunity to speak with Ms. Johnson? A No, ma'am. MS. MCDERMOTT: Okay, thank you. MR. CHALU: No questions, Your Honor. THE COURT: May this witness be excused? MS. MCDERMOTT: Yes, Your Honor. THE COURT: You're excused, ma'am, thank you. Call your next witness. MS. MCDERMOTT: Your Honor, at this time I think we're out of witnesses. I did try to speak with Ms. Morgan again and she was -- I never did get in contact with her so, um, at this time I would ask that just out of an abundance of caution just in case I haven't moved any exhibits in I would like at this time to ask that all the exhibits we referred to today be moved into evidence. THE COURT: Any objection, Mr. Chalu? MR. CHALU: No, Your Honor. THE COURT: They'll be so received. MS. MCDERMOTT: And I would ask to adjourn until tomorrow afternoon. THE COURT: Tomorrow morning? MS. MCDERMOTT: Tomorrow morning? THE COURT: Yeah, Wednesday afternoon, Thursday afternoon and all day Friday. MS. MCDERMOTT: Um, that's fine, Your Honor, we'll have Ms. Morgan here early. THE COURT: I have a short docket if you all want to come in at 9:30. MS. MCDERMOTT: Okay. THE COURT: Okay, is that all you have left is Ms. Morgan? MS. MCDERMOTT: Um, we may have -- we may have a couple of more witnesses but it will be short. It will be short witnesses. THE COURT: You got any witnesses tomorrow? MR. CHALU: In all probability, yes. THE COURT: How many you got? MR. CHALU: Right now it looks like three. THE COURT: Okay. MR. CHALU: Possibly four. THE COURT: Okay, all right. MS. MCDERMOTT: Judge. I'm sorry one housekeeping matter. Yesterday you directed us to give you a new Writ of Habeas Corpus to transport Donald Lamar Smith to Hillsborough County so I have prepared that for your signature. THE COURT: All right. Madam Clerk, make sure they get that over at the jail. Anything else? MR. CHALU: No, sir. MS. MCDERMOTT: No, sir. THE COURT: All right, see you all tomorrow. (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