IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL

CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR

HILLSBOROUGH COUNTY

CRIMINAL JUSTICE DIVISION

DIVISION: "A"

Defendant.

This cause came on to be heard before the HONORABLE DANIEL L. PERRY, Circuit Judge, at the Hillsborough County Courthouse Annex, Tampa, Florida, on

April 20, 2001, as follows:

APPEARANCES:

Wayne Chalu, Assistant State Attorney, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State;

Linda McDermott, Martin McClain and Scott Mario, Esquire, Asst. CCC - Northern Region, 1533 - B South Monroe Street, Tallahassee, Florida 32301, in behalf of the defendant.

COLLEEN MERRITT, OFFICIAL COURT REPORTER

I N D E X

PAGE LINE

PROCEEDINGS .............................. 238 1

DEFENSE WITNESS - DONALD LAMAR SMITH ..... 239 1

DIRECT EXAMINATION BY MS. MCDERMOTT ...... 239 1

CROSS-EXAMINATION BY MR. CHALU ........... 250 17

RE-DIRECT EXAMINATION BY MS. MCDERMOTT ... 263 5

RE-CROSS EXAMINATION BY MR. CHALU ........ 263 24

DEFENSE WITNESS - ELASISE MOORE .......... 268 10

DIRECT EXAMINATION BY MS. MCDERMOTT ...... 268 10

CROSS-EXAMINATION BY MR. CHALU ........... 273 24

DEFENSE WITNESS - MINA MORGAN ............ 280 20

DIRECT EXAMINATION BY MR. MCCLAIN ........ 280 20

CROSS-EXAMINATION BY MR. CHALU ........... 330 10

RE-DIRECT EXAMINATION BY MR. MCCLAIN ..... 350 23

STATE WITNESS - JACK MEHL ................ 352 7

DIRECT EXAMINATION BY MR. CHALU .......... 352 7

CROSS-EXAMINATION BY MR. MCCLAIN ......... 358 20

STATE WITNESS - JAMES NOBLITT ............ 360 16

DIRECT EXAMINATION BY MR. CHALU .......... 360 16

CROSS-EXAMINATION BY MR. MCCLAIN ......... 373 23

STATE WITNESS - KEVIN DURKIN ............. 376 8

DIRECT EXAMINATION BY MR. CHALU .......... 376 8

CROSS-EXAMINATION BY MR. MCCLAIN ......... 378 23

RE-DIRECT EXAMINATION BY MR. CHALU ....... 380 4

STATE WITNESS - AUBREY E. BLACK .......... 381 16

DIRECT EXAMINATION BY MR. CHALU .......... 381 16

CONCLUSION OF PROCEEDINGS ................ 391 25

CERTIFICATE OF REPORTER .................. 392 1

E X H I B I T S

PAGE LINE

Defense Exhibit 30 - Officer Southwick's 300 8

file

State's Exhibit 31 & 32 - Mina Morgan's . 303 14

notes

Defense Exhibit 33 - Pamela Woods' ...... 305 16

deposition

Defense Exhibit 34 - police report ....... 315 8

Defense Exhibit 35 - police report ....... 316 22

Defense Exhibit 36 - copy of letter from 318 2

DOC

Defense Exhibit 37 - police report ....... 318 20

Defense Exhibit 38 - clerk's notes from . 326 15

file

Defense Exhibit 40 - TPD supplement ...... 328 18

State Exhibit 5 - copy of police report .. 344 18

State Exhibit 8 - deposition of Solodon . 348 12

Clemmons

State Exhibit 1 - polygraph results ...... 355 9

State Exhibit 7 - certified copies of ... 383 18

conviction

State Exhibit 2 - police reports with ... 384 4

Johnny Newsome

State Exhibit 3 - certified judgement ... 384 13

and sentences

State Exhibit 6 - judgement and ......... 384 19

sentences Flemmie Birkins

P-R-O-C-E-E-D-I-N-G-S

THE COURT: Ready to proceed? 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: Donald Lamar Smith, S-M-I-T-H.

THE COURT: All right.

MS. MCDERMOTT: I ask just to put something on the record regarding Mr. Smith's presence. Um, our office cooperated with the Hillsborough County Jail and we actually footed the bill in order to get Mr. Smith here because we thought he was very important his testimony including this portion of the hearing and so I didn't necessarily want to continue the hearing.

THE COURT: Okay, I appreciate that.

Whereupon,

DONALD LAMAR SMITH,

after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows:

DIRECT EXAMINATION

BY MS. MCDERMOTT:

Q Mr. Smith, do you know an individual named Debra Smith?

A Yes, she's my wife. She had been my girlfriend.

Q Okay, and, um, how long have you two been together?

A Twenty-nine years.

Q Were you living together in 1996?

A Yes, ma'am.

Q Do you recall the address you were at in 1986?

A 1041 Harrison Street.

Q In the Central Park area?

A Yes, ma'am.

Q Do you know an individual named David Pearson?

A Yes, his nickname is Pine.

Q Nickname is Pine? How do you know Mr. Pearson?

A Well, we grew up so I believe we went to school and stuff.

Q And --

MR. CHALU: I couldn't hear.

THE COURT: They went to school.

BY MS. MCDERMOTT:

Q You need to speak up a little bit. How long have you known Mr. Pearson?

A Ever since '70, '71.

Q I'd like to show you, Mr. Smith, what has been moved into evidence as Exhibit Number 26 and I'm going photograph and I'd like for you to tell me do you recognize the individual in that photograph?

A Yes, that's Pine.

Q Now read what it says right there.

A Photo (b).

Q Thank you.

MR. CHALU: We since that is a composite exhibit which I don't know which part is significant.

MS. MCDERMOTT: I apologize, Wayne. That's photograph page four of the exhibit identified as photo (b).

THE COURT: Okay. He identified that as Pine if I'm not mistaken, correct?

MS. MCDERMOTT: Correct.

A Yes, sir.

BY MS. MCDERMOTT:

Q Now, Mr. Smith, did you also know an individual by the name of Katrina Graddy?

A Yes, ma'am.

Q And how did you know Ms. Graddy?

A I used to see her on the streets and associated with her many years ago when she was growing up.

Q And in June of 1986 in the morning did Katrina Graddy come to your house?

A Yes, me and my it was my girlfriend like she's my wife we have a porch and she walked up from town and she came up and asked me to come, can I ask you something and I said what and she said that Pine had just raped me. Um, she say that she said what is your full name and I said Donald Lamar Smith and she said is your birth date 9-25-57, and I said, yeah.

Q She asked if your birth date was 9-25-57?

A Yes, ma'am.

Q Then what did she tell you?

A She said well, Pine used your name last night yesterday I think. She said to me Pine raped me and used your name and told the police --

THE COURT: All right, go ahead, I'm sorry.

BY MS. MCDERMOTT:

Q Mr. Smith, so when Ms. Graddy came to speak to you she didn't know your full name; is that correct?

A No she didn't know my full name.

Q She asked are you Donald Lamar Smith?

A Yes, ma'am.

Q And then she also told you that Pine had used your name the night before when?

A When he raped her.

Q Did it appear that she had bruises when she showed up; is that correct?

A Yes, ma'am, she had a lot of bruises around her neck.

Q Bruising on neck?

A She told me he had choked her neck.

Q She said --

A She said Pine did it. That Pine gave her some rocks to trick with her.

Q Okay, I'm sorry but when she showed you these marks on her neck did she say how those marks happened?

A Pine choking her.

Q Choking?

A Forcing her.

Q Then she proceeded to tell you why Pine raped her is that what you're just telling us?

A Yes.

Q Pine raped her?

A Because she gave him, Pine gave her some rocks and Pine I mean Pine gave her rocks and she wouldn't trick with him have sex with him so he took it.

Q So he raped her?

A Yes.

Q Okay. Okay, Mr. Smith, did Ms. Graddy ask you if you would beat up David Pearson for her?

A Yes, beat him up and I said, my wife told me no.

Q And after she gave you this information and told you to be careful because he used your name did she ask you to walk her down Scott Street?

A Yes, we were going to head down.

Q And what happened when you were walking down do Scott Street? Did you see anybody?

A Yes, we saw Pine.

MS. MCDERMOTT: Okay, stop right there. Your Honor, I would like if it's possible I think that at this time he is going to be using some curse words and I would like if that's possible I would like for him to possibly say those things he overheard if that's all right.

THE COURT: I'm sure it's nothing I haven't already heard in here, go ahead.

BY MS. MCDERMOTT:

Q Now, Mr. Smith, so you saw Pine coming in the other direction?

A Yes.

Q Did you say anything to Pine?

A Yes, I said, Pine, I said why in the fuck did you use my name and did this girl.

Q Okay, you told him that when he used your name when he raped that girl what you just said?

A Yes, but before I got finished she went hollering at him.

Q What did she say to Mr. Pearson?

A She's going to get his ass if that's, that's what she's going to do, you know, you smoked my shit.

Q Okay, and did Pine also tell her that I'm going to kill your ass?

A Yes.

Q For calling the police on me?

A Yes.

Q Mr. Smith, when Katrina and Pine were arguing what happened?

A Oh, well I kept walking about but people started coming out.

Q Okay and why did people start coming out of their houses?

A They were getting too loud.

Q Okay. Um, now okay. Now I want to move on to the next step. A week or so after she came to you with this information did something happen that seemed somewhat eventful to you?

A Talking about, um, when she got killed?

Q No, well, yes, yes okay so did you see the fire?

A Yes, I was in the park me and my wife and she said fire and the first thing I seen the smoke I see something burning.

Q Let me ask you this. When did you see in proximity to this when Ms. Graddy come to talk to you?

A I guess it was about a week or so later.

Q When you saw that smoke what did you do?

A Um, I ran down to the corner of the street.

Q When you ran over there did you see anybody?

A Yes, I seen Pine walking fast towards me.

Q Okay, and did Pine say anything to you?

A Yes, I said Pine, what happened down there and he said man, man, Katrina was found in there strangled. I said what? So I walked to the corner where the police were in the projects and some things going on and I said they found Katrina strangled and all of them turned around to me.

Q Donald, Mr. Smith, let me stop you for a moment. When the police turned around to you what did they ask you?

A They asked me for my I.D. after I say that they asked me who told you this.

Q Okay, when they asked you who told you this how did you respond?

A I said a guy told me.

Q So you didn't tell them that it was David Pearson?

A No, I didn't tell them that it was David Pearson. There was a lot of people out there. I thought they would call me a snitch or something.

Q Okay, but if the police had come to you later when there weren't people around would you have told them everything you knew?

A Yes, ma'am.

Q About the rape and Pine and using your name?

A Yes, ma'am.

Q Okay. Now, would you have told them Pine was the person you passed on the street?

A Yes, ma'am.

Q Who was in the house?

A Yes.

Q Now, a couple of weeks after Ms. Graddy's body was found were you hanging out with Pine?

A No, Pine came to my house.

Q Okay.

A I guess.

Q Pine came to the house, you cut hair on the street?

THE COURT: He cuts hair on the street.

BY MS. MCDERMOTT:

Q So someone came over for a hair cut?

A Correct.

Q And what were you doing on --

A I was cutting his hair.

Q While you were cutting his hair did you have a conversation?

A Yes, about killing Katrina and he said he said bitch did smoke my shit and called the police, fuck you and any way I just shut up and finished cutting his hair.

Q Okay. And did you tell anyone about that conversation that you had with Pine?

A I told a lot of people. I told her, told my old lady. I told Pine, not Pine but Knuckle.

Q Who is Knuckle?

A George Smith.

Q And, Mr. Smith, in 1986 did anyone who was helping Mr. Holton come to talk to you about what information that you had?

A A black man the name of Darryl.

Q Okay in 1986, anyone come to talk to you about?

A Talking about --

Q Back at the time this was all happening?

A No one came there.

Q And, um, if someone had come to speak to you would you have given the information that you provided today?

A Yes, I would.

Q Would you have testified at Rudolph Holton's trial?

A Yes, ma'am.

Q Okay. Now, Mr. Smith, where did you, you testified earlier that you resided at 1041 Harrison?

A Yes, ma'am.

Q And in 1998 did someone come and talk to you about Mr. Holton's case?

A Yes.

Q Okay.

A He called me up.

Q And did you -- where did you live at the time that someone came to speak to you in 1998?

A Next door to the second door.

Q Okay.

A 421023.

Q And did you ever, okay, and did you and your wife ever reside together at any other addresses throughout the past 15 years?

A No.

Q Between the two?

A Yes, ma'am.

Q Now Mr. Smith, if someone had come to you in 1986 and asked you who had raped Katrina Graddy would you have told?

A I would have told them --

THE COURT: Go ahead.

THE WITNESS: That Pine did it.

BY MS. MCDERMOTT:

Q Okay, and would you have told them about this information you told us today?

A Yes, ma'am.

Q And if they had come to you after Pine had confessed to you would you have told them that?

A Yes.

Q Okay. Now, Mr. Smith, why didn't you go to the police with the information you had about Mr. Pearson?

A Me and Pine well we was close friends.

Q Uh-huh.

A Like I said Pine and me and Knuckle.

Q Okay.

A From -- we grew up together all friends and we didn't do that back then.

Q Okay but no one came to speak to you?

A Yes.

Q Would you have talked to them?

A Yes.

Q Would you have told them the truth?

A Yes, ma'am.

MS. MCDERMOTT: Thank you, Mr. Smith. He may want to ask you some questions.

THE COURT: Mr. Chalu, you wish to ask any questions?

MR. CHALU: Yes, I do, Your Honor.

THE COURT: You may inquire.

CROSS-EXAMINATION

BY MR. CHALU:

Q Mr. Smith, you just testified that you didn't tell the police because Pine was a close friend?

A Yes.

Q All right, so what you're saying, sir, that you withheld material evidence in a murder case, right?

A Yes, sir.

Q Is that right?

A Yes, sir.

MS. MCDERMOTT: Nobody went to speak to him from the police department so he didn't withhold evidence.

THE COURT: Well --

MS. MCDERMOTT: I think I may have --

THE COURT: Rephrase your question.

BY MR. CHALU:

Q You knew about a murder and you did not tell the police about it, correct sir?

A Yes, sir.

Q And what you're saying today, sir, is that you knew that Mr. Holton had been arrested for this murder?

A Mm-mm.

Q Correct?

A I didn't know his name then but I didn't know his face either.

Q Did you know the person, you knew the person that was arrested for this murder was not David Pearson?

A Mm-mm.

Q Right, correct?

A Yes.

Q Say yes or no.

A Yes, sir.

Q Okay. So you knew that based on what you just testified to here that they had the wrong man in jail for this murder, right?

A Well, I told the police who did it. If they would just find me. I was in the projects so that was their job to do that.

Q So you told lots of people about what Pine told you, right?

A They could, the police could have come and questioned me too.

Q You could have told the police officer, sir, couldn't you?

A Yes, when you're in the projects the way I let or let them know that you couldn't call the police and tell the police you know what I'm saying?

Q Sir, you never told the police that Pine had confessed to this murder to you, did you?

A I told the police, yes, I did tell the police that.

Q You didn't tell them that did you, sir?

A Yeah, you're getting me confused. Can you repeat your question again?

Q You never told the police that Pine had confessed to you that he had done the murder?

A This man Darryl come to see me and he had a badge he was the police.

Q When did he come to see you, sir?

A Um, I don't know the year. It was I guess '98.

Q '98?

A Yes.

Q Okay.

A I told the other police that guy I told back who killed her and he got my address and he got my name.

Q You told the police?

A Yeah, about a year ago.

Q Listen to my question. You told the police the guy that had just walked away said that Katrine had been killed in the house, right?

A Mm-mm.

Q All right, you didn't tell the police that is the guy that killed her, right?

A No, I didn't.

Q Because at the time you didn't know that was the guy that killed her, right?

A What do you mean?

Q Because he only told you that, right?

A Pine?

Q Yes, he told you later that he killed her, right?

A Yes but he said it was a girl dead.

Q And --

A How can her know before anybody else do?

Q When Pine told you that he had killed her you never then went back to the police and told them that, did you?

A No, I didn't.

Q All right, that's what I'm getting at. Now you're saying Katrina came up to you about a week or so before the murder and told you that Pine had raped her?

A Yes.

Q So she asked for your date of birth?

A Yes, she said what day was I born and I told her.

Q Now --

A Yeah, now you're starting to confuse me, man.

Q Didn't you just say on direct examination by Ms. McDermott that she asked you what your name and date of birth?

A She said is your name Donald Lamar Smith and I said, yeah. She said, 9-25-57 and I said, yeah.

Q Where did she get your date of birth from, sir? What I'm getting at is where did Katrina get your date of birth?

A When Pine was telling the police officers my name. That's how she got the date of my birthday. She didn't know but then she came by in the morning that day she got raped.

Q All right, sir, for the next question, sir. Did anyone beside you hear Pine say that he had killed Katrina?

A No, me and Pine was friends and he let me know.

Q So he figured that you wouldn't turn him in?

A I guess he did let me know if --

Q You didn't go the police?

A Like I told you I told other people.

Q Now --

A He told her --

THE COURT: Wait for the questions, okay?

BY MR. CHALU:

Q You said these folks came to you see in 1998?

A In 1996 you said or --

Q 1998.

A '98.

Q Okay, they identified themselves as who, who were they?

A Darryl something, I don't know his name.

Q Darryl?

A He showed me a badge showed it to me.

Q Well, did he tell you why he was there?

A Yes, investigating the murder of Katrina Graddy.

Q What did he tell you about it?

MR. MCCLAIN: Objection, that's hearsay.

MR. CHALU: It goes to the witness' motive for testifying, Judge.

THE COURT: I'll overrule the objection.

BY MR. CHALU:

Q What did he tell you?

A I don't know I forgot.

Q I'm sorry, you forgot?

A Yeah.

Q Well --

A I was sitting as a matter of fact I was in the back drinking beers when he come up.

Q Okay, you were drinking beers where in your neighborhood?

A In the back of my house when he came up.

Q Okay.

A Partially drunk.

Q Then when he come up to you, who were you talking to when the man came to talk to you?

A Who?

Q The man named Darryl?

A Yes.

Q You were drunk?

A But not --

THE COURT: Partially drunk was his testimony, Mr. Chalu.

BY MR. CHALU:

Q Okay, so you don't know what you told him?

A Well, I told him the same things that I told you all in court just then.

Q All right. Well what did he tell you?

A Yeah, would I come to court to testify and I said yes, I would.

Q Well did he say just come to court and testify? Did he say anything about the case?

A He didn't talk about the case.

Q He didn't ask you or tell you that he was an investigator?

A Investigating a murder.

Q Okay, did he tell you what murder?

A Yes, I just said Katrina Graddy and I said he didn't do it.

Q Did he tell you that they had the wrong man in prison?

A Did he tell me? I think he did. I'm not sure.

Q I'm sorry?

A I think he did but I'm not sure.

Q You think he did but you're not sure?

A Yes, sir.

Q Did he tell you that they needed your testimony to prove the man was innocent?

A Yes but he never come back to me.

Q Okay. How many times did that gentleman talk to you just once?

A No he talked to me several times.

Q Several times? When was the next time he talked to you?

A I wouldn't know dates or anything, sir.

Q Okay, well the next time they came to talk to you what happened?

A They asked me I don't know how you say it when you get a court date but they'll come get me.

Q All right, okay.

A But I think my girl was going through, she told me the same man came over looking for me but I was staying with somebody else at the time.

Q Right.

A I was seeing some other girl.

Q So they went and talked to your wife too?

A Um, I think he did. I'm not sure.

Q Did they talk to you separately or together?

A Separate.

Q When was the next time they came and talked to you? You said several times?

A That meeting there when this other man came to see me and I wasn't there.

Q Mm-mm.

A I was somewhere else.

Q Did they ever come to talk to you while you were in prison?

A Um, another dude did, a slender dude.

Q Okay. What from the same group of people did you ever cut Mr. Holton's hair?

A I think.

Q Okay what about this conversation what happened there?

A What I already told you.

Q Okay what did that gentleman tell you? Was that during that conversation in prison?

A Told me that I needed to come to court and tell what happened.

Q Okay. Did he tell you that they thought that Mr. Holton was innocent?

A No.

Q Okay. Had somebody said that to you before?

A No, they just said to come tell the truth and that's what I'm trying to do. The man is innocent.

Q Well, did tell you them you thought that he was innocent?

A No.

Q You didn't say that?

A The man needed help. I said I have been waiting for someone to come. I wasn't volunteering the help. I'm not going to volunteer because I'm in prison anyway at the time.

Q So if you're aware if somebody is innocent of a murder and you know who the guilty party is you're not going to volunteer it, right, sir?

A Not in the projects I'm not just like that.

Q You're in prison right now, sir.

A Yes, sir I'm in state custody. No one is going to get me there.

Q How many times have you been convicted of a felony, sir?

A Four times.

Q Four?

A Four or five, never been convicted of no murder.

Q I didn't say you had. How long have you been in prison now, sir?

A Now since January.

Q Okay. How many times have you been in prison?

A How many times?

Q Yes, sir?

A Five or four, five.

Q Four or five? Have you had since your sentence or contact with the defendant here Rudolph Holton?

A That man I can't get there.

Q Have you called him?

A No, sir.

Q Have you written him?

A No, sir.

Q Has he written you?

A No, sir.

Q When was your first felony conviction, sir, what year?

A I think '79, sir.

Q Okay. Did you know Rudolph Holton back in 1986?

A Yes, sir, I knew him before then but me and him we didn't talk that much.

Q You recognized him as somebody around the neighborhood?

A Sir?

Q You recognized him as somebody who was around the projects, the neighborhood, right?

A I see him around the neighborhood but we didn't really talk too much.

Q Okay. Just one moment, Your Honor. Did you ever see Rudolph Holton carrying a black shaving kit around?

A No, sir, not that I remember. It's been so many years ago, sir.

Q Were you aware back then in 1986 when Katrina was killed that Mr. Holton did drugs?

A Yes.

Q He did?

A Nodded affirmatively.

Q Do you know whether or not you had ever seen him in the house that was burned down where Katrina was killed?

A Well, a lot of people go in that house getting high, sir.

Q Sir, I'm talking before the murder did you see him go in the house?

A No.

MR. CHALU: I have no further questions.

THE COURT: Any further questions?

MS. MCDERMOTT: Can I have one moment, Your Honor?

THE COURT: Sure.

MS. MCDERMOTT: I have a couple of questions.

RE-DIRECT EXAMINATION

BY MS. MCDERMOTT:

Q Mr. Smith?

A Yes, ma'am.

Q David Pearson used your name after he raped Katrina. Was that the first time he used your name and date of the birth?

A No, ma'am.

Q That was not the first time?

A No, ma'am, he used my record to find out. He used my name plenty of times.

Q And, um, do you know when Pine's birthday is?

A I think August 27th, '58.

Q Okay, and when the people that were representing Mr. Holton came to talk to you did inform that Mr. Holton was innocent?

A Yes, I knew.

MS. MCDERMOTT: Thank you.

THE COURT: Anything further of this witness?

RE-CROSS EXAMINATION BY MR. CHALU

BY MR. CHALU:

Q Your date of birth is 9-25-57?

A Sir?

Q Your date of birth is September 25th, '57?

A Yes, sir.

MR. CHALU: Thank you.

THE COURT: All right, may this witness be excused?

MS. MCDERMOTT: Yes, Your Honor.

THE COURT: Do you need him any further?

MS. MCDERMOTT: No, Your Honor.

THE COURT: All right, he's free to go back where he came from.

MR. CHALU: If I may interrupt counsel for a second and I want to offer something to the Court because I don't know if I need to call a witness who is out of town in New Port Richey and it's not necessary for my case later but in rebuttal.

THE COURT: Okay.

MR. CHALU: There was already testimony in the form of the testimony that Mr. Birkins a colloquy where Mr. Episcopo represented to the court that Mr. Birkins had taken a polygraph concerning Mr. Holton confessing this crime to him and then in court yesterday we got into it a little bit more because when defense counsel questioned Mr. Birkins about how he could beat a polygraph he talked about like you can take a pill or tranquilizer or something of that sort.

In light of that testimony, Judge, my case before I would like to call in my case Jack Mehl who is available. He's back and he used to work for the state attorney's office and I would like to call him down here to refute that testimony concerning that you can fool a polygraph by taking a pill or tranquilizer or whatever like that because he's an expert polygrapher and I want to bring him in here if the Court is going to allow that testimony and I think it's relevant and germane and for rebuttal.

MR. MCCLAIN: In response, Your Honor, the results of a polygraph are inadmissible in any court because it's an area that is not recognized as having sufficient scientific value and the results of a polygraph examination I mean anything from a viewpoint of, a view so having a polygrapher testify regarding his opinion as to whether or not you can take a pill would be able to cause somebody to possibly pass a polygraph and give a false response is sort of minuscule anyway because under the law it's not a recognized scientific area or subject as expert testimony.

MR. CHALU: Well, normally it wouldn't be but they opened the door by introducing that exhibit which contains the representation that he had passed a polygraph and I think at that point it becomes fair game particularly in view of the fact that they then asked Mr. Birkins whether or not you can beat a polygraph and he said, yeah, you just take a pill so I mean certainly, Judge, they have opened the door and I'm entitled to address that issue so that testimony does not stand unrebutted.

MR. MCCLAIN: If I may, Your Honor, I believe it came up during cross-examination and nothing has been brought out to refute that but what the, the whole point is the polygraph results are not an aid because they're not considered to be reliable enough and whether this witness believes he had a method of appealing him or not the point is he passed it.

And that's not admissible as the fact he passed a polygraph is not scientifically reliable to be admissible in a court of law. Whether or not the polygrapher says you can't just take a pill or not to conceal it he passed it and that's really the issue. He passed it and he said he was lying when he passed it.

THE COURT: I'm sure -- well, I guess pursuant to their testimony I'll let you call him. I don't know how much weight I'm going give that or the other as far as that so, yeah, you can call him.

MR. CHALU: Okay, thank you, Judge.

MR. MCCLAIN: With Regard is it possible to do it over the phone today so we can finish today or --

THE COURT: He's going to here today and we're going to finish today.

MR. CHALU: We'll get him here today.

MR. MCCLAIN: I was thinking --

THE COURT: No, we're going to finish this today. Who is your next witness?

MR. MCCLAIN: Our next witness is Elasise Moore.

THE COURT: Come up here and have a seat in the witness chair, please, ma'am. If you'd 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: I do.

THE COURT: You can put your hand down. If you'd state your name record and spell your last name.

THE WITNESS: Elasise Moore, E-L-A-S-I-S-E Moore, M-O-O-R-E.

THE COURT: You may inquire.

Whereupon,

ELASISE MOORE,

after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows:

DIRECT EXAMINATION

BY MS. MCDERMOTT:

Q Ms. Moore, where do you live?

A I live at 1236 Burden Court.

Q Is that in Central Park?

A Yes, it is.

Q Did you live in Central Park in 1986?

A I have lived in Central Park all through ever since the fifties.

Q Okay. Do you know an individual by the name of Johnny Lee Newsome?

A We call him Georgia Boy.

Q That's what you call him?

A Yes, I do.

Q Did you know his real name is Johnny Lee Newsome?

A Yes, I did.

Q And did you know an individual named Katrina Graddy?

A Yes, I did.

Q How did you know Ms. Graddy?

A We were next door neighbors.

Q You lived next door to Ms. Graddy' mother?

A Yes, I did.

Q Were you friends with Ms. Graddy?

A Yes, I am.

Q And do you remember the morning when they found the body of a young girl in the vacant house on Scott Street?

A Yes, I do.

Q Okay and the night before they found the body where were you?

A Me and Johnny Newsome were in the vacant house off of Estelle Street.

Q You and Mr. Newsome were in a house together?

A Yes, we was.

Q Now did you two arrange to meet at the house?

A We went to the house together.

Q Okay. What time did you go to the house together?

A Well probably about nine o'clock.

Q Okay, and were you with Mr. Newsome around eleven o'clock that night?

A Yes, I was.

Q Now what were you doing in that house? What were you doing with Mr. Newsome?

A We was drinking, partying and um --

Q What do you mean partying? What do you mean?

A Having sex and drinking. He was smoking.

Q He was smoking drugs?

A Drugs.

Q Okay, and were you together all night?

A We was together all night.

Q When did you separate?

A We separated that morning. We came around the corner.

Q So you leave the house together?

A We left the house together and came around the corner and we saw a crowd of peoples so we wanted to know what was going on.

Q Okay, and did you learn what was going on over there?

A Yes, they found someone was in the house dead.

Q Did anybody know who the person was?

A No, they did not.

Q Okay now did you know an individual named Carrie Nelson?

A Yes, I did.

Q How do you know Ms. Nelson?

A We was neighbors.

Q She lived in Central Park?

A Off and on, yes she did she live in Central Park on Harrison.

Q Now did there come a time when you had a conversation with Ms. Nelson about Ms. Graddy's death?

A Yes, I did.

Q And do you recall how long after Ms. Graddy's death you had that conversation?

A Maybe about a year to six months something like that.

Q Now did Ms. Nelson tell you she had spoken to the police about the night of the murder?

A Yes she said the reason why she spoke to the police about that was because she thought Rudolph had stolen from her and she was going to get even with him.

Q So but what did she originally tell the police?

A I have no idea.

MR. CHALU: Objection to that because how would she know that unless --

THE COURT: She just said I have no idea.

MR. CHALU: This witness can't present what she talked to the police about. There's no predicate for that testimony.

THE COURT: Ask your question.

A She told the police I have no idea what she told them.

Q Okay, did she tell you she had seen them then?

A She said that Rudolph had went into the house.

Q Okay. Then she said, you said why she had said that to them?

A That's what she said.

Q It was?

A The reason was because her groceries was gone and she believed Rudolph had stolen them.

Q And did she also tell you that she lied to the police?

A Yes, she did.

Q And she told you that --

A She said I regret it and she knew she knew was wrong and she said she didn't want to die with that on her conscious. She wanted clear this up.

Q Okay. Do you know for sure whether she told anybody else about that?

A I have no idea.

Q Did you know if Ms. Nelson testified in Mr. Holton's trial?

A No, I did not.

Q Did you know if Johnny Lee Newsome testified against Mr. Holton?

A No, I did not.

Q Okay. Did someone come to speak to you in 1996 about Mr. Holton's case?

A Yes, they did.

Q Okay and did you find out through Ms. Nelson that Mr. Newsome had testified against Mr. Holton?

A Yes I did. I wondered how he could testify when I was with him, we was together and we came from around the corner together.

MS. MCDERMOTT: Okay. If I can have just a moment, Your Honor?

THE COURT: Sure.

MS. MCDERMOTT: Thank you.

THE COURT: Mr. Chalu, any questions?

MR. CHALU: Just a few, Judge.

THE COURT: You may inquire.

CROSS-EXAMINATION

BY MR. CHALU:

Q Thank you, Your Honor. How do you know Rudolph Holton the defendant in this case?

A I know Rudolph, I know him ever since he was stealing stuff and stealing out of school. I do not have no personal knowledge of him.

Q Okay, you have no personal knowledge of him?

A No, I don't know.

Q You're not friends with him or anything related to him?

A No, I'm not.

Q Okay. But you lived in the same general neighborhood as he did correct, ma'am?

A No, I did not.

Q Okay. Where was this place that you were allegedly with Mr. Newsome on the night of June 22nd, 1986?

A It was on Estelle Street.

Q How far is that from the burned house?

A It's not too far. It's only about a block away either way, you know, short cuts just a block away.

Q You said a block away?

A A block away.

Q Okay. And you said that night when you were with Mr. Newsome at this house a block away from the burnt house that you were drinking, partying, right?

A Yes, we were.

Q Okay. And would it be fair to say that you were, you were drinking to the point where you felt pretty good?

A No, I wasn't drunk.

Q You weren't drunk?

A No.

Q How many drinks do you have, do you remember?

A About two to three.

Q Two to three? Do you remember what you were drinking?

A We had shots of gin and Bull.

Q Okay. And what time did you get there, ma'am?

A We got there possibly nine o'clock at night.

Q Nine o'clock that night. And during that period of time did you fall asleep at some point?

A When we fell asleep we fell asleep, I fell asleep in his arms. He left them in that area no other kind of position.

Q Well do you remember, do you remember what time he fell sleep, ma'am?

A No possibly about twelve, one something like that.

Q How long did you sleep, ma'am?

A We slept until the sun rose.

Q Okay. So while you were asleep you know that Mr. Newsome was between there twelve and sun rise, right?

A Yes, I was in his arms.

Q You never even woke up that whole time?

A When I woke up I was his in arms was where I --

Q You don't know he could have left and come back during that period of time you were asleep and you wouldn't know about it?

A No, he didn't.

Q Okay. Now where did this conversation take place with Carrie Nelson?

A At her house.

Q And do you remember when that was, ma'am?

A It was all the way to a year to six months.

Q Okay. Now this was after the trial or before the trial?

A I have no idea about the trial.

Q Well, you knew that Mr. Holton or somebody had been arrested for the death of Katrina Graddy?

A Yes, I did.

Q Okay. Did you know it was Mr. Holton?

A Not personally I just, I never paid any attention.

Q Okay. Well when Ms. Nelson told you that she had not told the police the truth did you pick up the phone and call the police and tell them that?

A No, I did not.

Q Why not?

A I didn't want to interfere with it. I took it for granted that it wasn't my kind of business, sir.

Q Well, but ma'am somebody had informed you that the police had the wrong person who committed the crime and they're going down for murder wouldn't you want to tell the police that information was false?

A It wasn't important to me, sir.

Q So it was not your business that they arrested the wrong man for a murder is that what you're saying?

A I didn't understand what I was supposed to do because nobody come to me and asked me anything about it.

Q Well, couldn't you have picked up the phone and called the police and told them?

A I did not, sir.

Q You could have done that couldn't you?

A I didn't understand to do that.

Q Now when this person came to talk to you in 1996 where was that in your home?

A I was most like in the streets, you know walking the streets or something like that on the outside of my home or something like that. They didn't come to my address just for that.

Q What did they tell you?

A They -- I don't really remember what they asked me at this time.

Q Okay. Do you remember talking about whether they had the wrong man in jail for this murder?

A I didn't say anything about that either.

Q Um, did they say anything to you about that?

A No.

Q How did the conversation come about?

A They was talking about, I just told them what I knew about it.

Q Okay. Do you remember anything they said to you?

A Not right off it's been a long time.

Q Okay. So you don't remember anything they said to you back in 1996?

A I don't remember.

Q Okay but you do remember being with Johnny Newsome about ten years before that in 1986 at the exact time?

A I remember because we had been knocking around for sometime and I couldn't forget it I don't guess.

Q Do you remember Carrie Nelson telling you either in 1986 or 1987 about that conversation?

A I didn't know what day it was but I did remember, sir.

Q Okay but you don't remember the conversation you had with these people back in 1996 when they came to talk to you about the murder?

A Not right off not just like you asked I don't remember of it.

MR. CHALU: Thank you, ma'am.

THE COURT: Anything further?

MS. MCDERMOTT: No, thank you, Your Honor.

THE COURT: May this witness be excused?

MS. MCDERMOTT: Yes, Your Honor.

THE COURT: Ma'am, you're excused. Call your next witness.

MR. MCCLAIN: Mina Morgan would be our next witness, Your Honor.

THE COURT: Is she out there?

MS. MCCLAIN: She's out there.

THE COURT: Mina Morgan.

MR. MCCLAIN: Your Honor, she may be lengthy. I don't know how long you --

THE COURT: Bring her in and we'll see how we're doing and we'll break for lunch when we can. Step up here to 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: Mina Morgan, M-O-R-G-A-N.

THE COURT: You may inquire.

Whereupon,

MINA MORGAN,

after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MCCLAIN:

Q Ms. Morgan, my name is Mark McClain and we met last night and in order to try speed things up I showed you some documentation to help refresh your memory on this. Do you recall Mr. Holton's trial?

A Yes, I do.

Q Do you see him here in court today?

A Yes, I do.

Q Um, and were you able to refresh your recollection as to time frames do you remember when your appointment would have begun and when the trial was and that kind of thing?

A Yes, I took some notes on that. I don't think I would remember the dates without them.

Q Um and so if the record shows that you were appointed in July of 1986, is that consistent with your memory?

A Yes, it is.

Q And if the record were to show that the trial began December the first of 1986, would that be consistent with your memory?

A Yes, I believe it was right after Thanksgiving weekend.

Q And so you would have been representing Mr. Holton for approximately four months as the case went to trial; isn't that true?

A Yes.

Q Now just so the Court knows in terms of that time period those four months did you have other cases going on that you were handling?

A I looked at a couple motions to continue last night and I can see that it looks like there were about five trials set that period. I can't at this point in time remember which ones actually went other than Dr. Reese's case which went to trial for about a two week period immediately before this trial. That case involved 14 co-defendants, I think eleven of them testified in the case.

Q Okay, and for the record I'm going to show you a couple of motions for continuous that I think would help with your memory in that regard, and they are from the record it looks 852 and 817 of the record and first of all do you recognize your signature on those documents?

A Yes, I do.

Q Okay.

A Have you already marked these?

Q Pardon me?

A I don't see any exhibit number on it.

Q This is actually part of the court record.

A Okay, I'm looking at the motion for continuous with a certificate of service indicates September 30th.

Q Let me for record purposes that you know this is the page number 817 of the record on appeal and on this one, this document and it's hard to read 852.

A Okay, 817 which is a motion to continue which was delivered by hand on September 30th of 1986. That indicates that I had two trials set before Judge Menendez on October 27th, 1986.

A trial set before Judge Evans on November 3rd, 1986 and third trial set for trial set before Judge Graybill on November 10th, 1986. That, that trial was estimated to take about three weeks and with a normal judge it would have taken about three weeks. We worked two weeks and were there for night sessions. And I also said that I had a trial set before Judge Menendez on December first of 1986.

I think we can be sure that there the one before Judge Menendez on December first, 1986, didn't go. I don't know about the others other than the one before Judge Graybill.

Q Okay in looking at that in which you just recited was that your usual case load or was that a particularly busy time period for you?

A Was it particularly busy in the trial before Judge Graybill was Dr. J. Reese trial. It was an M.D. with 14 co-defendants. It was a drug trafficking case. We had a medical license that was at risk. We had a surprise witness that turned up in the second week of trial.

I was working I think probably not exaggerating about eighteen hours a day on that case during that trial. We were in court sometimes ten hours a day.

Q And were you concerned because of that trial regarding your ability to adequately represent Mr. Holton?

A I was. The concern arose even before we even, before we started Dr. Reese's trial, I knew that it would probably be a very grueling trial.

Q Okay, and that trial ended you said Thanksgiving?

A Yes, I think it was the day before Thanksgiving weekend began and then the next Monday, the following Monday was Mr. Holton's trial.

Q Okay. Now also I believe in those motions for continuous I was also given to point out do you see reference to Pine an individual by the name of Pine?

A Yes, on that first motion to continue which was the September one I stated I was unable to effect legal, legal service on four civilian witnesses in an attempt to serve them for deposition on October 22nd, '86 and that I believe that the testimony of, I'm sorry, it's the next paragraph the defendant discovered two of the witnesses that may be able to establish that the victim in this case was raped by a man named Pine approximately one week prior to her death and that the defendant in this case was charged with sexual battery, murder and arson and we were looking for Pine.

Q Did you receive information that an individual by the name of Pine was a significant witness and part of your reason for a continuous was in order to have more time in order to locate him?

A Yes.

Q In order to locate information regarding this incident?

A Yes.

Q Okay, and what was the date of that motion for continuous?

A The certificate of service is September 30, 1986.

Q At this point in time do you recall how that information came to you?

A I can't recall specifically that. I know that at one point in time we were having my investigator spoke with the victim's father and I recall generally, I know he said that the word on the street was that Pine had done this. I believe he may have said that he thought Pine had done this.

Q Okay.

A The name Pine kept coming up.

Q So you actually heard the name Pine from the victim's family?

A Yes, and I believe from Mr. Fernandez, but yes.

Q I am assuming you represented other capital defendants?

A Yes.

Q Is it unusual to have a victim's family providing information regarding other suspects?

A No, about the only time I've ever had that is when one member of the family was charged with the offense and also their family member.

Q I see. Now I'm going to hand to you from the record it's 823 and it's a motion to incur additional costs for the investigator and at this time I tried to help you out by having tabs there to point to you the paragraph. First of all do you recognize that motion as being a motion that you filed in this case?

A Yes.

Q And that was because of your need for additional investigation services to assist you?

A Yes, this case I know took a lot of investigative hours because it was very difficult to locate witnesses and when you did it was difficult to keep a handle on them.

Q When you say in this case it was difficult to locate witnesses can you sort of elaborate for the Court what problems were you having?

A A lot of the witnesses were street people, people that I don't know that anyone owned property, people rented, they moved frequently. We would get street names for witnesses and not real names and try to find out what their real name was.

Q And in this motion is there also reference to the person by the name of Pine?

A Yes, number 14 of the motion says the defense investigator spent numerous hours in trying to determine the true name of Pine. A friend of the victim told the defense investigator that Pine raped the victim approximately one week before she was killed.

The rape was reported but the victim used a false name because there was warrant out for her arrest according to her friend. The investigator ascertained, the investigator ascertained Pine's true name through his criminal record and his photograph.

I didn't think we ever did that. I didn't recall ever having the right name for him.

Q Maybe you received a false lead at that point in time. Do you recall ever being able to actually determine who Pine was?

A I don't think so. I know for a while we thought he was, might have been Johnny Newsome but nobody would ever say that Johnny Newsome went by that name.

Q Okay, and in the course of preparing your defense -- well first let me back up. Was your defense one of innocence?

A Yes, it was.

Q And why was that?

A Mr. Holton from the beginning maintained that he had not committed the offense, um, both my investigator and I believed that he had not committed the offense and that belief never changed.

Q Um, some people sometimes think that defense attorneys can be dilly eyed and think all their clients are innocent. Without revealing anybody else's case or information was it common for you to believe your clients were innocent?

A I had been a public defender for five years. I realized that most of the time my clients lied to me.

Q Okay. But in this instance you had concern that Mr. Holton was in fact innocent?

A Yes, I did.

Q And, um, then I assume you were looking for people who may have committed the murder in order to try establish his innocence in that fashion?

A Yes, we were.

Q And Pine was one of your primary suspects?

A He was.

Q Now that document that you have in front of you what's the date of certificate service on that?

A October 29th of 1986.

Q So that would be just a little over a month before the trial began?

A Yes, that was the month of the time that I could or was free to work just solely on Mr. Holton's case. I was, I was working primarily at that point in time also to get Dr. Reese's case ready.

Q Great. Now, in that motion and the motion for continuous would have been served on the state as well?

A Yes, the would have been.

Q Who was representing the State of Florida in this proceeding?

A Joe Episcopo.

Q So he would have been provided those documents making reference to Pine and your belief that Pine was significant to the case?

A Yes, definitely.

Q I'm going to provide you with what has been introduced into evidence as Exhibit 13 and 14. I'm going to ask you to take a look at those. I believe that I showed you copies of those last night so you would --

A Yes, you did.

Q -- save time so you would have a chance to peruse them before becoming a witness. Are those documents the documents that you had at the time of Mr. Holton's trial?

A Definitely not.

Q And in fact when is the first time that you saw those two documents?

A Last night.

Q Okay. Can you describe for the record what those documents are?

A They are police reports. They deal with a defendant named David Lorenzo Pearson.

Q First of all the copy quality obviously are not the best is that fair to say?

A Yes.

Q It takes a little bit of deciphering to be able to read that?

A One involves an alleged sexual battery and the alleged victim of that is Katrina Grant who is showing an address that is the same address that is on Katrina Graddy our victim in the Holton case death certificate.

Q Let me show you for the record Exhibit Number 22 which has been admitted into evidence so that you would have that as well. Is that the death certificate you were just referring to?

A Yes, and I compared the addresses and it's the same address as for Katrina Graddy. The birth date is the same except for a year and Katrina was 17 then and it wouldn't have been unusual at all for her to make herself a year older so when she can be considered as an adult.

Q And she in fact have also some legal problems as well?

A I believe one of my motions I may mention she had a warrant.

Q Okay. Okay, getting back to Exhibits 13 and 14. You were noting that you had identified the victim of the sexual battery as Katrina Grant?

A Yes.

Q But in comparing that to the death certificate does that seem the victim in this case the person you were looking for?

A It seems to be that it was really Katrina Graddy.

Q Okay, and is in looking at that report does it also provide information regarding other individuals that would have been significant to you?

A Yes, it does. David Pearson also David Pearson identified himself according to this it's David Lamar, Donald Lamar Smith and Donald Lamar Smith was an individual that turned up the morning after the killing asking questions of the police department about the killing.

Q And in fact I'm going to hand you an exhibit in that regard and for the record it's Exhibit Number 18 and it's already been admitted into evidence and I think that's what you were referring to there in your testimony just now; is that correct?

A Yes.

Q And go ahead and explain for the record the significance of how these documents related from your point of view?

A Well, it's significant to me on that I had the, had I had exhibit 13 and 14 I would have seen a tie between Pine, David, David Pearson Pine being David Pearson and also a connection between him and Donald Smith.

Through Donald Smith I would have known they knew each other and I could perhaps gotten out of Donald Smith where to find Pine, what Pine's real name was and could run him down. It would also have been very significant to know that Katrina Graddy ten days before her death had made a complaint about Pearson claiming that he had anal intercourse with her. That she eventually dropped that charge but that he did get, he did get interviewed for it and ended up being arrested not for that charge but for giving a false name. Word again on the street was that Pine was angry at her that she had, had him arrested. Um --

Q Let me stop you one moment. In terms of the anal sexual assault did that in fact tie into the manner in which she was found dead?

A It did in my mind because it was a broken bottle crammed up her anus.

Q So that would be something that from your perspective as a defense attorney would have been significant if you had the report showing that it had been an anal sexual assault?

A Yes, it would have.

Q Now let me just I think it's number 18 which is the one that you would have had.

A Eighteen is a police report.

Q You were aware of that police report?

A I believe that I was. It was in my file when I reviewed for this hearing so, yes.

Q So the name Donald Smith appears in that report?

A It does.

Q Is that something you recall that you wanted to investigate for this Donald Smith, or do you recall at this point?

A I really don't know at this point in time. If I had this report and it appears that I did have it then yes we would have been looking for Donald Smith and we would have wanted to interview him.

Q Do you know why you weren't able to find him?

A No other than the fact that I ran out of time.

Q Okay. If you had the other report would that have given you even more reason to find Mr. Donald Smith?

A It certainly would have.

THE COURT: Is this a good place for a break?

MR. MCCLAIN: Sure, this would be fine, Your Honor.

THE COURT: Let's break for lunch, ladies and gentlemen. How about 1:15?

THE BAILIFF: The court will stand in recess until 1:15.

(Whereupon, court was in recess)

(Whereupon, court was back in session)

THE COURT: Is Ms. Morgan, here?

THE WITNESS: Yes, sir, I am sorry.

THE COURT: Everybody ready to proceed?

MR. MCCLAIN: Yes, Your Honor.

THE COURT: Let's proceed.

MR. MCCLAIN:

Q I'm trying to remember where we left off. Ms. Morgan, you have the record so I don't want to separate the exhibits and let me check and make sure it's 18, record of discovery and it's four long pages and also page 822 which is from the record which is additional discovery in Mr. Holton's case and just ask you to look at that in terms of refreshing your recollection. First of all in this case you did ask for discovery?

A Yes, I did.

Q And these documents would be the formal pleadings filed by the state in response to your discovery demand?

A Yes, they would be.

Q Okay, and during the lunch recess I've been trying to I guess give you a chance to refresh your recollection with reference to and let me provide it to you Exhibit Number 18 which you testified to regarding previously and for the record Exhibit Number 18 is say what it is.

A It's a two page report and the initiating officer is T.A. Lawless and his I.D. number is 627. On the record 812 there's an Officer T.A L-A-W-L-E-S-W.

Q So apparently there was a typographical error in the spelling of his name?

A Well, there's also a typo on his I.D. number because it's number 16.

Q Okay.

A And Lawless on his report is number 627.

Q Okay, and the Lawless report and so the record is clear it indicates that Donald Smith was at the scene with information?

A Yes, but Donald Smith is not listed on either, either 822 or 810 through 815 which is the notice of discovery and the additional discovery.

Q Okay, and I'm also going to provide you with Exhibit Number 12 which has already been admitted into evidence and I'm calling your attention to the second page of it. This is in reference to Officer Lawless. That document indicates that he was excused without taking a deposition. Is that consistent with your recollection?

A Well, I've looked at it and we don't have a deposition from Lawless.

Q Okay?

A Ordinarily in a homocide even if I thought the witness knew very little about it and it was a police officer if I had a report from them I would make them come in just to say they don't have any knowledge outside the report. I would do that simply because I'm paranoid and I don't like surprises.

Q Right.

A If Lawless was excused then that probably means that I didn't have this two page report which is Exhibit Number 18.

Q In fact in the courtroom you have your trial file is present, correct?

A Yes.

Q Have you had a chance to look through it, I mean for every witness involved in the case did you keep a label file?

A I keep a label filed because I have a lot of trouble with names and ordinarily I'll get a police report and as I'm going through it the first time I'll create a file for each police officer who has any piece of any report even if it's a one page report and I didn't find a file folder for Lawless.

Q I'm going to hand you your file folder, well pulled out from your folder just to show this to you. There is a file folder on Officer Southwick; is it not?

A Yes, it is.

Q Now Officer Southwick is a name that does appear on exhibit, what is it number 18?

A Yes.

Q Because he was a supervisor?

A Yes, he's initiated it as, yeah, he's not the editor but it's down there.

Q And there's no question that you did have the name Southwick and you have a file on Southwick and in that file you do have a police report?

A Yes, it's a six page report and all the pages one through six are here and on this one it's interesting Southwick signed as first officer and Lawless signed as second next to it as second officer which at least I thought then but not now that he perhaps did it with him but actually everything that was writing it down was Southwick.

Q Okay. And but there's no question that in that file marked Southwick you do not have Exhibit Number 18?

A Eighteen and that I probably would not have put that report in this Southwick file but first signing officer was Lawless but if I had a report I would have filed it just like this with T.A. Lawless' name with that two page report.

Q Well --

A If I had it.

Q Just for the record and if the state doesn't object just to show what you are talking about I'm going to offer this as an exhibit so that you can you have on the record the manner in which you would keep a file and what is, what you would have in a file.

THE COURT: Any objection to it, Mr. Chalu?

MR. CHALU: Just give me one second, please.

THE COURT: I assume you're not offering the contents of the file.

MR. MCCLAIN: No, it's just demonstrative.

MR. CHALU: Judge, let me just ask one question of Ms. Morgan voir dire on.

THE COURT Go ahead.

VOIR DIRE BY MR. CHALU

BY MR. CHALU:

Q Ms. Morgan, you recognized this as a file which came from your files in this particular case of Mr. Holton's case?

A Yes, because he did not testify there is a sticky taped over it, yes, it's my handwriting on it and he did not testify.

Q Do you recognize this as your file?

A Yes, it's got the, it's got the same labeling system that I use and they're all the same color ones I was using for this trial.

MR. CHALU: No objection, Your Honor.

THE COURT: All right, it will be so received as Defense Exhibit Number --

MR. MCCLAIN: Thirty.

THE COURT: Thirty.

BY MR. MCCLAIN:

Q In fact I think by mistake when you delivered the file you also delivered another person's file and you color coordinated your files so that the Holton files have blue labels and this other person file had yellow labels?

A Yes, I believe it was the Brate file.

Q So in examining the notice of discovery that was provided by the state and the additional discovery which lists the reports and Exhibit Number 18 and also I guess Exhibit Number 12 which shows Lawless was excused, um, at this point in time can you tell whether you had in your position or provided Exhibit Number 18?

A I didn't have it and I'm willing to bet that I excused Lawless from this deposition because I saw Lawless as just a second signer on that six page report that it was really Southwick doing the interviews and I had Southwick coming to the deposition to answer questions about it.

Q Okay now in that number 18 that report Donald Smith's name appears and can you state for the record what information regarding Donald Smith is provided in terms of being able to locate him?

A In talking about Smith it says, it identifies him as Donald Lamar Smith. It gives a TDID number on his I.D. number of 220071 and says that he used to live I think it's 3804 Jackson Street but now he lives at 1041 Harrison Street and his Florida driver's license number is also here and identifies him as five foot eleven.

Q So with that information you would or should have been able if you had that information to locate him if he was at that address?

A I think we could have because especially even if the usual driver's license and address didn't work if you had the TDID number we could find co-defendants on his other cases and maybe find him that way. There was a lot of, a lot of information in there.

Q And also in Exhibit Number 18 the information Donald Smith provided the police, looking at that now is that information that you as the defense attorney for Mr. Holton would want to investigate?

A Yes, particularly if on the second page it says note approximately 11:30 hours black male walked up to the crime scene area and asked me quote "Who choked Anita, what happened, who got choked?" unquote. She was strangled with a ligature. I would have wondered how this individual would know she was choked at all and the fact that this individual had that information even if a person just overheard it out there would have been enough that I would want to find him and I am probably positive would want to put him on.

Q Okay.

A He is someone in the area that has some knowledge about a death and what happened to this woman so I would really want to know because he would have been a suspect in my mind.

Q Okay. I'm going to just provide back to you the other exhibits which I left off. You had most of them on the stand, 13 and 14 and 22, the death certificate, and 13 and 14 are sexual battery and obstructing police reports. Again as the information regarding of Donald Smith piles up on the witness stand in front of you obviously, you would have as a defense attorney would have more reason to want to talk to him?

A Yes, I would have found out that Pine's real name was Pearson and that Pine ten days before had reportedly raped this girl and then claims that his name was Donald Smith. I would have been suspicious had I had exhibit 18 that not Donald Smith that maybe Donald Smith was Pine even.

MR. MCCLAIN: Right, okay, and I'm going to hand you well first let me show this to the state. I'm going to hand you what has been marked as Exhibit Number 31 and 32. I'm going to offer them into evidence as well.

THE COURT: Any objection, Mr. Chalu?

MR. CHALU: No, Your Honor.

THE COURT: They will be so received, 31 and 32.

BY MR. MCCLAIN:

Q If you could just for the record look at those and explain what those documents are.

A Both 31 and 32 are my notes. I can't really tell from them when I made them or why I made them.

Q It's your handwriting?

A It is my handwriting.

Q From your trial file?

A Yes.

Q Okay.

A It's definitely on this case. On 32 I've written down Pine lose. I've got put, put Pine then there's dark fat, I can't tell if there's anything else there.

Q So because you indicated you had some information regarding Pine you wrote it down?

A Yes, there is also there's some Darryl is listed on there and you reminded me that Darryl was the father of Katrina Graddy's --

Q Angry boyfriend?

A Boyfriend, I think he may have been the father of a child by her.

Q Okay.

A Going to say -- well let me look at my notes from my meeting with him if I can even tell.

Q Okay, and the thirty?

A The 30?

Q Thirty-one.

A And 31 I can't read 31. I can't read one word but there is a little line again Pine choking her and then a little line it says "N" and then I can't read the next word oh, it's an "x" at bottom.

Q There is also on the back of this motion you had filed information you had regarding Pine perhaps sexually assaulted the victim previously?

A Yes, I have got Terry Hayes written on the top of that who I think was the father of her child. I have got Terry Hayes in here at the bottom so it may be we were not interested in interviewing him. I think certainly if I had got the information concerning after the pieces of information about Pine choking her and something about a sexual assault that would be a material source of that especially saying that it was Pine that had done this to her earlier.

MR. MCCLAIN: Now, I'm going to provide you with Exhibit Number 33 which the State I believe has indicated --

THE COURT: Any objection?

MR. CHALU: No, Your Honor.

THE COURT: It will be so received number 33.

BY MR. MCCLAIN:

Q The deposition of Pam Woods. And do you recall first of all the question do you remember Pamela Woods?

A Yes, she was the girl unfortunately she did not show up on the day she was supposed to testify but she was, she was a friend of Katrina and I think basically more than friends. I know they worked the streets together a lot.

Q Okay. Now I'm going to show you the deposition and I believe it has a date on it of October 22nd, 1986. I'm just calling your attention to a couple of passages. On page 28 of the deposition I believe there's reference to, um, Pine?

A Um --

Q I might have flipped it back.

A I think yes, there is a question by Mr. Episcopo and it says the question, Yeah, he brought some, brought that night he was with a black guy; do you remember that? The witness, Well then he probably would have been with Pine or something but I don't remember him. I know I had seen him somewhere but I didn't you know, know them or nothing. I don't know what you're talking about. Pine is mentioned.

Q Okay so there is reference to a white guy being in the neighborhood?

A Yes.

Q Do you remember at the trial of a person by the name of Carl Schenck testifying?

A Yes, he was a white guy that the, that was parked out in front of the house where the fire was and the body was found.

Q Okay, now if you had that information regarding Pine and the name for Pine then available or would you have wanted to try to determine whether or not Carl Schenck may have seen Pine that night?

A I think I would have. Well, I would know there was a photograph on file with I think a police report and I had an I.D. number, you got a booking photo and it's not any better photo and I would have possibly shown it to Mr. Schenck.

Q Okay. I am showing you Exhibit Number 26 which has been admitted into evidence and it is an affidavit of Carl Schenck and I attached to it an affidavit. The last two pages are actually booking photos. Does this -- are these things you would have wanted to show Mr. Schenck?

A Yes.

Q In that second photo I believe it is on the very last page marked "b" is a booking photo of Pine or David Pearson. Is that, I guess that's -- what would you have wanted to do with it?

A I would have wanted to show that to him.

Q And you would have done that?

A I would have.

Q Okay. I'm showing you information regarding Pine's identity, David Pearson you would have done a check on his criminal record?

A We would have, yeah, we would especially we would run his criminal record and we would have tried to interview him even though I'm realistic that he probably wouldn't have confessed.

Q Now I'm going to provide you first with Exhibit Number 15 which is already been admitted into evidence and it's a deposition in David Pearson's case taken in April of 1986. I call to your attention because it contains some information regarding a criminal matter and obviously in April of 1986 regarding Mr. Pearson you would have tried to ascertain what criminal charges were pending; is that correct?

A Yes, I would have.

Q In looking at that is there anything you notice in terms of who the attorneys are that are involved in Mr. Pearson's case that would be significant to you?

A Yes, Brian Donerly was a defense attorney back at that time and Brian and I own property together. We are still close friends. We don't see each other now but then we saw each other on a very regular basis and spoke regularly. I probably I would bet that I ran the facts of the Holton case past him probably even consulted with him for advise on how to deal with evidentiary matters.

Q Now, I am going to hand you what has been introduced as Exhibit Number 16 and this is a police report and I believe it is connected with the criminal case that you have the depo from and I just want to call your attention to if I can to line on the second page and it says, I noticed black, brown leather pouch in the defendant's possession. Is that the kind of information in reference to David Pearson and his possession of such a pouch that would have been significant to you in representing Mr. Holton?

A It would have been. This Schenck the man who picked up him hitchhiking and let out of the car and by the scene of the crime had a little black pouch and I had looked at the pouch and there was all kinds of things in the pouch and none of them appeared to be related to Rudolph Holton, none of the things that you would likely to have in a pouch. I know one thing that there was a Gibb's High School reunion notice and looking at the age for Mr. Holton I would probably looked to see if Pine had any relationship with someone from Gibb's High School and if he went to Gibb's High School and if in fact that he carried a little pouch I would have wanted to get into evidence.

Q As a matter of fact do you remember that black pouch or black shaving kit was it in fact taken into police custody from Mr. Schenck?

A Yes.

Q Just for the record I now have from the trial State's Exhibit 13 and just so you can see to refresh your recollection was that actually introduced?

A Yes, that looks like it.

Q And so, um, there what you would want to know if there is a photo of David Pearson?

A Yes, if he's the one tied with Katrina Graddy I know that.

Q Okay. This police report there are some things that may be worth pursuing in that regard?

A Yes, at the time of this arrest of Mr. Pearson he had a black, brown little shaving pouch or a pouch, yes.

Q Actually I had began to get to the deposition of Pam Woods and I just want to draw your attention to page 36 of it. And in fact at that point in time does Pam Woods say something in reference to Pine regarding the bag?

A Yes there's something on page 35 too.

Q Okay so she indicates that Pine was known to carry such a bag?

A To carry a bag around in his hand.

Q Okay.

A There's a question of a black bag and she says I don't know I think so a black case type bag, you know, shaving kit is what she says yeah one of them little cases, right, it was a bigger bag. There was a bigger bag and she's talking about a bag but I can't tell if it's a little one or a big one.

Q Thank you. Just to first of all --

THE COURT: How much longer are you going to be?

MR. MCCLAIN: I think we're going to finish that matter now.

THE COURT: Is this your last witness?

BY MR. MCCLAIN:

Q Yes, Your Honor. Um, Ms. Morgan, again your representation of Mr. Holton did you become familiar with a person by the name of Flemmie Birkins?

A Yes, I did. He was the jail house snitch.

Q Okay, and do you recall that he testified against Mr. Holton?

A Yes.

Q Do you recall the testimony or his representations in court to you as to what consideration if any he was receiving?

A Yes, he claimed he wasn't cutting any deal, that there weren't any promises or anything. Basically he was expecting I believe to get a three year sentence however.

Q And I'll hand you what has been marked or been introduced at trial as Exhibit Number Eight which is a presentence investigation report regarding Mr. Birkins. And I'm going to hand you Exhibit Number Nine which is a score sheet and looking at the score sheet first of all what does it indicate was the range of the sentence?

A 185 points.

Q And then -- what does it have on there?

A I'm not sure, I'm sorry, these things have changed so much over the years. I didn't know where to look. It looks like nine to twelve year range.

Q Is that what -- did you know that at the time?

A No, I thought the guidelines would -- I was thinking maybe three and a half to four and a half or three and a half to four that was the range that I was told.

Q Were you ever provided with a presentence investigation regarding Mr. Birkins his criminal history?

A No.

Q No? But if you had been provided with that information would you have been able to determine where Mr. Birkins fell on the score sheet?

A I should have been able. I think if I had looked I would have at least been suspicious of a three and a half, four and a half range on him. I would have known it should have been higher than that probably.

Q And I'm going to hand you Exhibit Number Six which has already been introduced into evidence which is a handwritten motion for probation. Do you recognize that document? Do you know if you were familiar with that document at the time of trial?

A I didn't have it at the time of trial. I saw this last night for the first time.

Q I'm going to provide you with Exhibit Number Seven which is a FDLE report dated November 29th, 1986 so that would have been written prior to the trial of Mr. Holton. Did you have that information?

A No, I don't believe I did. It's, it's a criminal rap sheet. I think he couldn't, I could have counted up the convictions and figured out that the guidelines I was given could not have been right.

Q And I'm going to provide to you what has been introduced as Exhibit Number Ten which is a transcript of the sentencing proceeding that occurred on December 19th, 1986 which was obviously after Mr. Holton's trial. Do you recall ever having access to that transcript?

A Not until, not until CCR got involved in the case and I'm not sure when I first saw this. I know I looked at it last night but I think someone in your office had shown it to me before.

Q And would you have -- do you know when your representation of Mr. Holton ended?

A Probably about early, early January of 1987 I would think.

Q When you filed the notice of appeal? I'm going to hand you what has been marked and it's from the record page 894 which is actually the notice of appeal.

A That's my signature. That's my signature right there.

Q So January of '87?

A Yes, or early January.

Q So to you were never made aware of the sentencing that happened in December of Flemmie Birkins?

A No, it was within the last few years that I found out what a good deal he eventually got.

Q Okay, and also just to complete that Exhibit Number 11 which is actually the judgment labeled judgment of guilt and I believe it's also dated December of 1986, December 19th.

A That's the final judgment of guilt placing the defendant on probation.

Q So again you would not have ever been provided with that document?

A No.

MR. MCCLAIN: I'm going to show Exhibit Number 34 and I have shown it to the state and I don't believe they have objection to it.

MR. CHALU: No.

THE COURT: It'll be so received number 34.

BY MR. MCCLAIN:

Q And I'm handing you Exhibit Number 34 which is a police report and I believe it's within the pages you can see actually 18 pages long but it's, um, one of 18 and it's also signed by Detective Durkin.

A Okay.

Q Do you remember his involvement in the case?

A Yes, I do.

Q And I'm going to call your attention to the page that has a little green tab on it. Do you recall noticing before or do you recall that information the time frame that Mr. Holton was arrested?

A No, I recall the last thing Birkins is saying that he's talking to Holton's statement, that Holton is really talking about these two detectives.

Q Okay.

A About Noblitt and Durkin. I didn't notice that at the time of trial.

Q Do you recall actually trying to examine Mr. Birkins regarding the police report indicating that Mr. Birkins instead might have talked to Mr. Holton and trying to cross him and that these photographs were inconsistent with what his testimony at trial that was around 5:30?

A Yes, because at the time he said it was 5:30 but when he left the or talked to the officer in the police report he said another time. He said it was 1:30.

Q So there was a point of doubt, you noticed that was inconsistent testimony and when Mr. Holton was actually arrested?

A I know I hadn't noticed it.

MR. MCCLAIN: Your Honor, I'm going to move in this case Number 35 into evidence and I don't think the state has an objection.

THE COURT: Any objection, Mr. Chalu?

MR. CHALU: Not for purposes of this hearing, Your Honor.

THE COURT: Thirty-five will be received.

BY MR. MCCLAIN:

Q And again quickly it's property from 1984, 1984 regarding Flemmie Birkins in which he indicates that he has worked for the police as a C.I. Did you have any information regarding that?

A No, and I deposed Flemmie Birkins.

Q Had he told you that he was a C.I. for the sheriff's office or TPD that would have been significant information for you?

A Yes.

MR. CHALU: Judge, it's a very bad copy.

THE COURT: What is it?

MR. CHALU: It's a DOC report which is an attached letter which purports to be Flemmie Birkins and it's just a difficult copy to read. The last page of the letter is largely impossible to decipher except for the signature. Well actually the second line, past the page, the last page you can't decipher and I'm going to object just for that reason.

THE COURT: What is it for?

MR. MCCLAIN: Your Honor, the handwritten letter that is attached is indicating that he is telling the, the Department of Corrections there that to look at my record and to call on me it will explain all about my assistance in helping the Tampa Police Department to cut down the crime rate.

THE COURT: I'll let it in.

MR. MCCLAIN: Number 36.

THE COURT: Thirty-six will be received over the State's objection.

BY MR. MCCLAIN:

Q I just point out to you the reference I believe shown to you last night regarding Mr. Birkins representation that he had helped the Tampa Police Department cut down the crime rate. Did you have information like that?

A No.

Q What about this would have been significant to you?

A It would have been if had the letter and I would have been able to cross-examine.

MR. MCCLAIN: I'm going to show you Exhibit Number 37 which I have shown the state and the State hopefully has no objection.

THE COURT: Any objection, Mr. Chalu?

MR. CHALU: Your Honor, not for this hearing.

THE COURT: It'll will be so received.

BY MR. MCCLAIN:

Q This is a police report dated after the trial so it obviously didn't exist at the time on the 20th of 1987. I just call your attention to the fact that it's a sexual battery allegation being filed against Mr. Birkins and I'm turning to the page where there is an interview of him and he's asking for Detective Noblitt. Is that significant information as Mr. Holton's defense attorney even though obviously it didn't come into existence until after the trial but would it have been relevant so that you would have wanted to know or the information that Birkins provided against Mr. Holton?

A It would have been relevant to me in that Detective Noblitt and Detective Durkin were the lead detectives in the case against Mr. Holton.

Q Okay. Do you remember Red Clemmons?

A Yes, I do.

Q And in fact did you actually call Red Clemmons as a witness?

A Yes.

Q To some extent as an alibi witness?

A Yes.

Q I'm going to provide you with Exhibit Number 17 which has already been admitted into evidence and I believe that is from your trial file. Look at those documents and do you recall that?

A Yes.

Q Could you explain what that is?

A That would be a transcript of the taped conversation that we had with Red.

Q Okay. And do you recall that it was at the time of trial and you made sure that it was an accurate rendition of the statement but for identifying who the questioner is?

A Yes, and Red had signed this as being accurate but what I did, I recall this being difficult because Red it was hard to understand him. I don't know if he talks fast or if something about the dialect problem but I know that I had the transcript and tape as I was listening to the tape I was looking at the transcript.

Q Okay.

A Whether it's word for word or a little different this is the transcript of what he said and it's accurate.

Q Okay.

A It's accurate.

Q In fact these are cassette tapes that go with that transcript?

A Yes.

Q And again just to try speed things along I don't think I'll be much longer but in reference to that do you recall that Red provided you information in reference to a cigarette pack?

A Yes, he did.

Q And the cigarette pack was significant in what way in this case?

A It was significant that we had testimony from a detective that he had found the cigarette pack in the room adjacent to the room where the body was found and I think several days after the body was found there was a pack of Kools and it was sent off and it was Rudolph Holton's fingerprint on the back of Kools.

Q And so that was a physical link of Mr. Holton to that house there where the body was found?

A Yes.

Q And what did Red, what information did Red provide you in reference to that?

A Red told us that one of the detectives had come to the house, his house and I think he may have been looking for some of Mr. Holton's clothing because Mr. Holton had been staying there and Red said that one of the detectives had picked up a pack of cigarettes that was there and took it out of his house and it was taken when they left the house.

Q Now I'm going to show you State's Exhibit Number Seven from the trial. Do you recall that picture or pictures like it or that being the scene inside that house?

A Yes, I can't tell you if that's one of their's or one of ours but I don't know. You can tell me.

Q It's State's Exhibit Number Seven from the trial and indicates it was taken June 23rd of 1986 at 722 hours.

A I went there naturally long after it happened and it still looked basically like that. This was one interesting thing in the trial there was all kinds of junk there, various people using drugs there and numerous packs of cigarettes when I went in and three months later I bet four or five packs of cigarettes in that house.

Q Okay. Obviously, you chose not to present testimony from Red regarding his observations regarding the police officer?

A Yes.

Q And just so for the record could you explain how you would reach that conclusion?

A Red was very threatened by the Tampa Police Department. Um, he didn't want to testify in court. He thought one of them took the cigarette from his house. I was, I was afraid that if I did put him on he would say well, that's not what I meant and he can up the testimony or that I would, you know showing him a prior statement and I didn't want to sell that to an average Hillsborough County jury that a police officer would have taken evidence and planted it. I didn't think it would sell.

Q Was it your position that the cigarette pack really didn't show anything any way?

A Yes, because Rudolph Holton had been in the house before and he said that he went in there to use drugs and he went to smoke cocaine.

Q Okay, there were many cigarette packages laying around?

A As you look everyone in the neighborhood was there using drugs. There were Cola cans in the middle of the floor, burn marks, used crack pipes. This was a drug hang out an abandoned house where people go to use drugs.

Q I want to show you and I'm going to point out on Exhibit Number 12 to you and there's a name Willie Simmons that is on that. Do you recall who Willie Simmons was in this case?

A I can't remember who he was.

Q Okay.

A That wasn't his real name, was it?

Q No, and actually I'm going to hand you something that may help. This is Exhibit Number 23 and it's already been admitted into evidence. And you can notice it is a deposition of Carrie Nelson. Do you remember Carrie Nelson?

A Yes.

Q And I'm calling your attention to page 313 of this deposition.

A Okay, yes, he was someone who Carrie Nelson was with her when she saw Rudolph Holton on the date of the killing there by the vacant house where the body was found.

Q Do you remember were you ever able to locate Mr. Simmons?

A We weren't able to. I know Sonny was trying to locate him.

Q And were you successful when you made an attempt to find him?

A No, we were looking for him. I was, I was afraid that he might just bolster Carrie Nelson's testimony.

Q But not having talked to him obviously you didn't know whether to worry?

A I wanted to talk to him and then not really expect to get a whole lot from him probably.

Q Was this a situation where you just ran out of time?

A Yes.

Q I'm going to hand you Exhibit Number 24 back and I'm trying to find my place. This is number 34 which is a police report by Detective Durkin. I'm turning and I think it's on page ten of that. I can't tell what number it is but it's regarding the officers at 1400 hours on June 26th of reference to Mr. Newsome.

A Yes.

Q Now do you recall this report in terms of it indicating Mr. Newsome saw the, claimed to have seen Mr. Holton in possession of the black bag after the homicide?

A Yes.

Q And in relationship to the trial do you recall how that would be significant for impeachment of Mr. Nelson?

A It would have been significant because he claimed to have seen Rudolph Holton with a bag after the bag would have already been either locked to Mr. Schenck's case or TPD custody after they searched that car.

Q Mr. Schenck had in fact had the bag in his vehicle with him when the police were knocking on the window?

A Yes.

Q When the body was found?

A Yes.

Q So that would, that would have been impeachment of Mr. Newsome's version. Do you recall whether you presented that?

A I didn't present that.

Q Did you have any reason for not presenting it?

A No, I think I should have presented that.

MR. MCCLAIN: I'm showing you what is marked as Exhibit Number 38 and I've shown it to the state and I don't believe there's an objection.

THE COURT: Any objection?

MR. CHALU: No, Your Honor.

THE COURT: Number 38 will be received.

BY MR. MCCLAIN:

Q Just calling your attention to that document to that regarding Mr. Newsome and it shows charges pending against him in that time period between the homicide and his testimony at trial. After reviewing that do you recall knowing that there were that amount of charges that he picked up during this time period?

A I don't think I knew.

Q Okay. And in terms of is there any strategic reason if you did know for not asking him about them?

A No, there wouldn't have been. It's Johnny Lee Newsome's motion to continue and he was one witness that I was given the name or his true address very late. I was late in deposing him and when I did depose him it was at the end of Dr. Reese's trial waiting for a jury. I don't specifically remember. I don't have a motion to continue but I'm thinking there might have been.

MR. MCCLAIN: In fact, we would introduce the deposition of Johnny Lee Newsome dated the 25th, 1986 as Number 39.

THE COURT: Thirty-nine?

MR. MCCLAIN: Just a second.

THE WITNESS: I think the record should reflect the depo was taken three days before the trial.

BY MR. MCCLAIN:

Q What are you referring to?

A I think it was taken late. I think the motion to continue in September indicates or one of the motions to continue indicates I had just gotten his address and yes, we took him very late.

Q Okay.

A At the time I took it I was already close to totally exhaustion.

THE COURT: You got anything else you're going to admit?

MR. MCCLAIN: We're just about done, Your Honor.

THE COURT: Okay.

BY MR. MCCLAIN:

Q Um, now did you also in representing Mr. Holton did you learn that he had dentures?

THE COURT: That he had what?

Q Dentures?

A I don't remember.

MR. MCCLAIN: I'm going to and I've shown the state.

THE COURT: Are you going to admit his teeth? Are you going to admit 40?

MR. MCCLAIN: Yes.

THE COURT: Any objection?

MR. CHALU: No, Your Honor.

THE COURT: It will be so received.

BY MR. MCCLAIN:

Q I'm showing you the police department crime scene supplement and I'm calling your attention to the two pages and pointing to the paragraph that starts the 25th, 1986 regarding the activity of Detective Durkin in looking for a denture plate.

A He returned to the crime scene for a denture and there's my handwriting over to the right and it's written with a triangle defendant missing upper plate so I must have known.

Q And is that significant in this case in terms of Mr. Schenck's testimony that was presented by the state to try to establish that Mr. Holton was the hitchhiker that he had picked up?

A I can't recall if there was something about him. I don't know if he remembered something unusual about the hitchhiker's teeth.

Q Okay, right off the top of your head you don't remember?

A I don't remember.

MR. MCCLAIN: If I may just have a moment I think I'm just about done. I may be done.

THE COURT: Do you remember one gold tooth?

MR. MCCLAIN: Your Honor, at this time I have no further questions.

THE COURT: All right, Mr. Chalu?

MR. CHALU: Can I request a very brief recess for two reasons? I want to get the clerk to pull some exhibits and it will make cross-examination go fast and two, I need to notify one of the witnesses to come down here so when you want to start again we can start calling my witnesses.

THE COURT: How long are they going to take?

MR. CHALU: Judge, I don't think any more than an hour or so.

THE COURT: Okay, let's get them here within the hour, all right, and we'll take a ten minute recess.

(Whereupon, court was in recess)

(Whereupon, court was back in session)

THE COURT: You may inquire.

CROSS-EXAMINATION

BY MR. CHALU:

Q Ms. Morgan, referring to Defense Exhibit 39 which is the Newsome depo, do you have that in front of you?

A I don't.

MR. MCCLAIN: I'll help you put these exhibits, I'll be happy to put them in order to maybe help in the future.

MR. CHALU: That'll be fine, thank you. I want to see the last thing he showed to you.

MR. MCCLAIN: I think I left it up over here.

BY MR. CHALU:

Q Thank you very much. Referring to Defense Exhibit 39 which is in evidence which is a deposition of Johnny Lee Newsome. Ms. Morgan, you indicated that you had not been made aware of the fact that Mr. Newsome might have some pending charges during this period of 1986 when this case was pending or during the trial is that what you stated?

A I don't remember any.

Q Okay. Would you -- referring to pages 20 and 21 would you begin reading at page at line 19 on page 20. Just read that to yourself and then all of page 21 and all of 23 and I'll have a question for you.

A I'm just reading he's talking about being a witness and things. I don't see anything where it clearly says there's something against him.

Q He indicates to you on page 20 when you asked him line 19, on page 20, do you have kind of charges pending against you now? He said me? You said, yes. He said, no, well, hold, wait a minute let me see and then it goes on to talk about another case and then on page 21 at the bottom he is talking he thought he had where he knocked somebody down and beat him up and so on and so forth.

A When I read it he's talking about how he's a witness in something and he doesn't understand the difference between the charges he's on and the charges against him and --

Q Okay.

A In the knock down I couldn't, I thought he was talking about one of the cases he was a witness in.

Q Now when you moved for a continuous, Ms. Morgan, again this was late November early December that wasn't the first time you had requested a continuous in this case, correct?

A I think a motion in September and then that one in either late October or early November.

Q So you had filed a motion for a continuous prior and it had been granted, correct?

A Yes.

Q Okay, and wasn't the motion for continuous that was denied to you a new subject on direct appeal at the Florida Supreme Court that it was error for the trial judge to deny a continuous in the case?

A Yes.

Q Okay didn't the Florida Supreme Court deny relief based on that found and affirm his conviction?

A They did but they didn't have before them some of the things that I found out since then, things that I didn't find out that I now believe I could have found out if I had more time. I just knew I didn't have time to do an adequate investigation. I knew I was too tired to be trying a first degree murder case.

Q Well you put all those factors including that you had been through your schedule that you had right before the trial leading up to the trial and all those things were put in your motion for a continuous weren't they and presented to the judge?

A They were I didn't, I didn't put in there something that I know now. I knew that the witness here we have a two page report Donald Smith that we didn't find and that wasn't in there because I didn't know about him but he is someone I think I could have found out had we gotten the continuous but the Florida Supreme Court didn't know that when they reviewed it.

Q All right. You then also had requested in your motion for continuous more time because you needed to find this Pine fellow, right?

A Yes.

Q And so if you had more time to find Pine then you might also had more time to find Donald Smith, right?

A Yes, I would have known to look for him if I had that report.

Q And in any event you didn't go to trial in December because you failed to request a continuous, did you?

A I got -- I went to trial in December because I was dragged there screaming and kicking and knowing that I wasn't adequately prepared.

Q And you moved for a continuous and the judge denied it?

A Yes.

Q Now regarding Mr. Donerlly's representation of David Pearson also known as Pine in an unrelated case you recall being asked about that subject matter on direct examination?

A Yes, in looking at the deposition from that case.

Q Would you have expected the attorney for Mr. Pearson or Pine in this case Mr. Donerlly to have informed you of facts that would have incriminated his client to a first degree murder?

A No.

Q So the fact that Mr. Donerlly might have known that David Pearson was Pine would not have helped you, correct?

A No, I just thought it one of the many ironies.

Q Because he would not have told you that?

A No, I don't think he, he certainly wouldn't have intentionally told me that.

Q All right. Regarding the questioning about Flemmie Birkins and we're talking about the Defense Exhibits Six, Seven, Eight, Nine, Ten and Eleven. This is Defense Exhibit Six in evidence, ma'am. Does he state anywhere in this exhibit where he's asking the judge for an ROR that one of his grounds is that he is a witness in a murder case or assisting the state in a murder case?

A No, he just says he is a TPD informant that he's helped fight drugs basically.

Q Fight drugs. This is Defense Exhibit Number Seven in evidence, ma'am, which reports to be a rap sheet of Mr. Birkins. You were asked before about the if you had known about all these convictions you could have impeached Mr. Birkins at trial you remember saying that?

A I think I would if I had this I would have been suspicions of a three and a half to four and a half year guidelines.

Q Okay. Well would you mind taking a look at this, ma'am, and the reason I want you to take a look at it is my question to you is isn't it a fact that on many rap sheets there are no dispositions or actual sentences showing or often times is even a conviction shown if there is a conviction?

A That's right and Birkins was local though so you got case numbers you could order the files from the clerk and sometimes you could find out.

Q Okay. This is Defense Exhibit, Defense Exhibit Number Eight in evidence. Let me draw your attention to the second page. Actually it's labeled page one. It is the page after the face sheet and what type of plea does that indicate Mr. Birkins entered in his pending charges?

A It says an open plea.

Q Open plea. What is your understanding of an open plea is?

A The judge will determine the sentence.

Q In other words that he did not have a deal from the state, correct?

A Yes.

Q This is Defense Exhibit Ten in evidence. Ma'am, do you recall that being shown to you on direct examination?

A Yes.

Q Okay, on page two of this transcript which purports to be the transcript of Mr. Birkins' sentencing on his charges in December of 1986, would you read this first paragraph here where Mr. Peavyhouse addresses the Court. Mr. Peavyhouse being Mr. Birkins' counsel at that time.

A Yes, Your Honor, as I think I advised the Court before when Mr. Birkins tendered a plea to this charge he was before Judge Spicola. There was an offer made of three years Florida State Prison by the attorney at that time. My best recollection is that we tendered a plea open to the stipulated guideline range of two and a half to three and a half years. The actual guidelines that was given to me at that time indicates three and half to four and a half years Florida State Prison.

Q Okay. Then later on he goes onto to say the guidelines were in fact higher they were nine to twelve?

A Yes.

Q Do you recall that?

A Yes.

Q In any event it was an open plea Mr. Birkins entered apparently, correct?

A Yes.

Q From everything we can determine. Now, were you aware at trial, ma'am, when you cross-examined Mr. Birkins that Mr. Birkins qualified as a habitual felony offender?

A Yes.

Q So isn't it a fact that when you cross-examined Mr. Birkins you didn't just talk about his alleged three and a half to four and a half guidelines range, correct?

A No, I talked to him also about did he understand what habitualizing meant and that he could get a higher sentence.

MR. CHALU: And, Your Honor, I'm going to request and I'm sure CCR would not object to the Court being supplied the full record on appeal in this case.

MR. MCCLAIN: I assumed that, yes, that goes without saying that the full record should be given to Your Honor.

BY MR. CHALU:

Q Okay and for the record, Ms. Morgan, do you recall when you cross-examined Flemmie Birkins at trial that you didn't rely on the guidelines in crossing Mr. Birkins so much as relying on the fact that he was facing greatly enhanced penalties as a habitual felony offender which could even be run consecutive?

A Yes.

Q Ma'am, let me show you what was shown on direct examination which is State's Exhibit Trial Number Seven and do you see a package of Kool cigarettes in this picture?

A No, and I remember it didn't turn up in any of the photographs, oh, wait, there's one in the right corner another Kool light.

Q Yes, okay. What is the date that it indicates that this photograph was taken on the back of that exhibit, ma'am?

A June 23rd of '86.

Q What day, what is the significance of June 23rd, of '86?

A The body, I can't recall the date, the date of the death certificate is 3-29. No, that's the birth. I can't remember the date of the offense.

Q Okay but, ma'am, if I told you the date of offense was June 23rd of '86 would that sound correct to you?

A Yes, it would. What was the date on the photograph?

Q The date of the photograph was June 23rd of '86.

A Same day.

Q Let me show you what was also previously admitted into evidence at trial as State's Exhibit Number Six and would you mind taking a look at the particular photograph?

A Yes.

Q What -- is there anything an object here in the photograph here in the lower left-hand corner?

A There a pack of Kool lights but it looks different. I don't know if it's the angle of the camera or what but this one isn't squished up and that one is.

Q All right. What's the date according to the back of this exhibit that this photograph was taken?

A June '86.

Q June?

A I'm sorry June 23rd 1986.

Q Which was the date of the offense was it not?

A Yes.

Q Would that have been the first day that would police officers, crime scene technicians would have responded to the scene, correct?

A Yes.

Q So does it appear that Kool package was at the crime scene on June 23rd, 1986?

A Could I look at both photographs?

Q Sure can.

THE COURT: I think it's been established that the Kool cigarette packet could have been there in 1986 so let's move on.

A It's just the pack looks different in the two photographs.

Q All right, thank you.

A It's the same general location but the pack itself looks different.

Q At trial, ma'am, regarding Mr. Schenck the gentleman who dropped off somebody who he testified to looked like Mr. Holton, is it true is it not he never made a positive I.D. of Mr. Holton at trial?

A No, he didn't.

Q All right. In fact he stuck to his guns when he stated at trial as he stated in depo that he could not positively identify Mr. Holton as the person he dropped off there, right?

A That's correct.

Q Okay. And in fact when you cross-examined concerning or argued concerning this black bag didn't it appear that there was an item in there indicating a Gibbs High School reunion for graduates of 1966 from Gibbs High school?

A Yes, there was.

Q Okay and didn't you point out to the jury that, that could not have anything to do with Mr. Holton because Mr. Holton would only have been thirteen years old in 1966?

A Probably.

Q Or that he was too young to have graduated from high school in 1966?

A I don't remember exactly what the testimony was but I know we were trying to link the Gibbs High School reunion to anyone and I couldn't think of any conceivable reason why Rudolph Holton would have it and keep it.

Q They never found any of Mr. Holton's fingerprints on that black bag did they, ma'am?

A No.

Q They never ever tied any of the items found in that black bag to Mr. Holton your client, correct?

A No, but it still, it was still damaging that we had a witness say they had seen Holton with a black bag. It was maybe Johnny Lee Newsome said that I can't recall.

Q I'm sorry, Your Honor, I need to check the exhibit number. Do you remember taking the deposition of Flemmie Birkins, ma'am?

A Yes.

Q Do you recall Mr. Birkins telling you that he actually had two separate conversation with Mr. Holton in the jail?

A I don't remember now.

Q Okay.

A I remember that, I remember there was a police report indicating that the time of one was at eleven something.

Q Okay. Let me show you what has been marked for identification only at this point as State's Exhibit Number Four for this hearing. Let me draw your quick attention if you would just read to yourself here, okay and then --

A Yes, it indicates that he talked to him about five and then after he went to the clinic he did talk to him again.

Q So there was actually two separate conversations that he had with Mr. Holton according to Mr. Birkins' testimon