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Wayne Thomkins v. State of Florida
SC06-277
77 77
>> ALL RISE.
HEAR HEAR.
THE
SUPREME COURT OF THE
STATE OF FLORIDA IS NOW IN
SESSION.
ALL THOSE
HAVING BUSINESS
BEFORE THIS COURT, DRAW NEAR,
GIVE ATTENTION, AND
YOU
SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF
FLORIDA
AND THIS HONORABLE COURT.
>> GOOD MORNING.
LADIES AND
GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING,
FRIENDS AND
WELCOME TO THE ORAL ARGUMENT
SCHEDULE FOR MONDAY MARCH
5,
2007.
WE'RE PLEASED THIS MORNING
TO HAVE WITH US STUDENTS AND
THE
FACULTY I ASSUME FROM
BROWARD COMMUNITY COLLEGE.
ARE YOU HERE?
WE'RE
GLAD YOU'RE HERE.
THANK YOU FOR JOINING US
THIS MORNING.
A COUPLE OF
HOUSEKEEPING
MATTERS BEFORE WE PROCEED
WITH OUR FIRST CASE.
THE ORDER
OF THE LAST TWO
CASES, THE CASE THREE WILL
BE HEARD LAST ON
THE
CALENDAR THIS MORNING AND
CASE NUMBER 4 WILL BE HEARD
IMMEDIATELY
AFTER OUR
MORNING RECESS FOR COUNSEL
THAT IS PREPARED FOR THAT.
WITH
THAT LET'S PROCEED TO
OUR FIRST CASE THE CASE OF
TOMPKINS VERSUS STATE
OF
FLORIDA.
>> MAY IT PLEASE THE COURT
COUNSEL FOR THE RECORD
I'M
MARTIN McCLAIN.
I'M HERE ON BEHALF OF WAYNE
TOMPKINS AND HIS APPEAL
FROM
THE DENIAL OF HIS --
>> I BELIEVE WE'RE HAVING A
LITTLE BIT
OF TROUBLE HERE.
IT'S USUALLY NOT A COMPLAINT
ABOUT ME.
THANK
YOU.
VERY SOFT THIS MORNING.
>> WELL, I WILL
GET-GOING
HERE.
IN THE 3.850
SPEND -- PENDING BEFORE THE
COURT THE
CLAIM IS A BRADY
VIOLATION.
AND THE BRADY VIOLATION
SPECIFICALLY
RELATES TO THE
POLICE REPORT THAT WAS
DISCLOSED IN 2001 THAT
CONTAINED
THE INTERVIEWS OF
MARINE SWEENEY AND MIKE
WILLIS.
IN THOSE INTERVIEWS
THERE
WAS A DISCUSSION ABOUT
CONVERSATIONS BOTH OF THOSE
INDIVIDUALS
THAT HAD WITH
JUNIOR DAVIS OR JAMES
DAVISER IS HIS FORMAL NAME.
AS YOU
DO THIS.
>> YES.
BECAUSE I KNOW ANOTHER
MOTION WILL BE
INVOLVED
WITH.
SOMETIMES IT'S BRADY.
JONES STANDARD.
ISN'T THE ISSUE
BEFORE US
TODAY WHETHER THERE SHOULD
BE AN EVIDENTIARY HEARING
ON
WHETHER THERE'S AN AFFIDAVIT
MR. STEVENS
INCURRED!!!!!!!!!!!!!!!!
INCURRED -- -- INCURRED IN
A
EVIDENTIARY HEARING.
>> THAT'S THE QUESTION
WHETHER THERE SHOULD BE
A
EVIDENTIARY HEARING ON THE
AFFIDAVIT OBTAINED FROM
JAMES DAVIS JUNIOR
IN APRIL
OF 2002.
BUT THE AFFIDAVIT RELATES TO
AN UNDERLYING BRADY
CLAIM.
A BRADY CLAIM WAS PRESENTED
IN 2001 AFTER THE POLICE
REPORT WAS
DISCLOSED.
AT THAT POINT IN TIME IN
2001 JAMES DAVIS JUNIOR
OFTEN KNOWN
AS JUNIOR DAVIS
COULDN'T BE LOCATED.
OUR COUNSEL -- THERE WAS A
WARRENT
IN 2001 A STAY OF
EXECUTION.
THERE WAS AN APPEAL FROM THE
PRIOR 3.850
AND WHILE THAT
APPEAL WAS
SPENDING -- PENDING WE WERE
ABLE TO LOCATE
MR. DAVIS.
AND WE OBTAINED AN AFFIDAVIT
FROM HIM.
THE AFFIDAVIT IS AS
SOON AS
WE FOUND HIM APRIL OF 2002
AND AT THAT POINT IN TIME WE
FILED A
MOTION TO RELINGUISH
THE APPEAL THAT WAS PENDING
BEFORE THIS COURT AND
SOUGHT
TO PRESENT THE AFFIDAVIT IN
A 3.850.
ALL OF THAT GOT
DELAYED.
THIS COURT AT THAT POINT IN
TIME DIDN'T WANT
TO
RELINGUISH.
AS SOON AS THE CASE GOT BACK
TO THE CIRCUIT COURT,
THAT'S
WHEN WE WENT FORWARD WITH
THE AFFIDAVIT FOR MR. DAVIS.
THE
AFFIDAVIT SHOWS THAT HAD
THE INFORMATION MARINE
SWEENEY AND MIKE
WILLIS
KNOWN HAD -- AND REVEALED TO
THE STATE AND DISCLOSED TO
THE
DEFENSE ATTORNEY HE
WOULD HAVE SHOWN THAT
MR. DAVIS KNEW
SOMETHING.
ACCORDING TO THEIR
STATEMENTS MR. DAVIS WAS
VERY DISTRAUGHT
OVER THE
DISAPPEARANCE OF THE CAR.
HE INDICATE HE HAD MADE
REPEATED
EFFORTS TO TRY TO
FIND HER AND TO TALK TO HER
FAMILY.
AND THAT HE WAS
VERY HURT
BECAUSE HIS UNDERSTANDING AT
THE TIME THAT SHE RUN AWAY
HAD
-- AND HAD GIVEN HIM NO
INFORMATION AND NEVER
CONTACTED HIM.
AND SO
THAT HE WAS DONE WITH
THE FAMILY.
THAT INFORMATION IS
GLARINGLY
INCONSISTENT WITH
WHAT STEVENS SAID ABOUT
ABOUT WHAT BARBARA
DECARR
SAID ABOUT HIM.
I'M UNDERSTANDING THIS AS
BEING.
>> I'M
UNDERSTANDING THIS AS
BEING IMPEACHMENT OF ONE OF
THE WITNESSES KATHY
STEVENS.
IS IT MORE THAN ONE OF
ASPECT OR HER TESTIMONY?
>> I
WILL BE HAPPY TO TAKE
THE ALLEGATIONS AS TRUE THAT
SHE'S THE ONE THAT
SAW
MR. TOMPKINS ON SEVERAL
OCCASIONS BEFORE AND
THEN -- THEN ON THE
DAY OF
FIGHT OR SEXUAL SITUATION
WITH THE VICTIM.
IS THAT AFFIDAVIT
MORE THAN
JUST IMPEACHMENT THAT SHE
SAW JUNIOR EVEN
--
[INAUDIBLE]
>> YES.
ON THE DAY --
>> ON ONE LEVEL,
YOUR HONOR
THAT'S WHAT IT IS.
IT IS IMPEACHMENT.
BUT BECAUSE THERE'S
ALSO A
QUESTION OF DILIGENCE IT'S
ALSO IMPORTANT TO NOTE
IT'S
INCONSISTENT WITH WHAT
BARBARA DECARR INDICATED.
>> LET'S
ASSUME YOU GET OVER
THE FIRST HURDLE.
I'M CONCERNED ABOUT
HOW -- EVEN
IN THE LIGHT
MOST FAVORABLE TO YOUR
CLIENT, HOW THIS SURVIVE
JOANS THAT
THERE WOULD BE A
PROBABILITY OF AN ACQUITTAL
ON TRIAL?
>> FIRST
YOUR HONOR I
DISAGREE JOANS WITH THE
STANDARD.
I SUBMIT BRADY IS
STANDARD
AND THE QUESTION IS WHETHER
THAT UNDERMINES COMPETENCE
AND
REASONABLE OF DIFFERENT
SKWROEUTCOM WHICH IS MORE
LIKELY THAN NOT.
BUT
GIVEN THAT, KATHY
STEVENS ACCORDING TO THE
CLOSING ARGUMENT AT
TRIAL
WAS THE LINCHPIN OF THE
CASE.
HE INDICATED THE
CONVICTION
COULD BE BASED ON HER
TESTIMONY ALONE.
AND WHAT'S IMPORTANT
TO
NOTE -- KNOW IS NOT JUST
WHAT JUNIOR SAVES SAID PUT
WHAT JUNIOR
SAVES DAY IN
CONJUNCTION WITH WHAT WAS
PREVENTED IN 1989 AND
2001.
KATHY STEVENS HAD AN
IMPORTANT ROLE IN THE
HISTORY OF THE CASE IN
THAT
SHE WAS WITH LISA DECARR ON
MARCH 23rd WHEN THEY WERE
CAUGHT
SMOKING OFF CAMPUS.
THEY WERE SUSPENDED FROM
SCHOOL AND EXPELLED.
THE
SCHOOL RECORDS WHICH
WERE DISCLOSED INDICATED THE
PATIENTS CAME AND GOT
THEM
ON MARCH 23rd.
ACCORDING TO WHAT KATHY
STEVENS TESTIFIED TO
IN
TRIAL SHE GO TO LISA
DECARR'S HOUSE THEY TALKED
ABOUT RUNNING
TOGETHER
BECAUSE THEY WERE SO UPSET
ABOUT THE SCHOOL SUSPENSION.
THIS
IS NOT WHAT SHE
ORIGINALLY SAID.
WHAT SHE ORIGINALLY SAID AT
THE TIME
WAS THAT LISA
WARREN AWAY BECAUSE SHE WAS
PREGNANT.
LET'S MAKE SURE
THAT
TESTIMONY IF SHE HAD GIVEN
SOMETHING WALL STREET
TKWEUPBT --
DIFFERENT AT THE
TIME AND THEN SUBSEQUENTLY
CAME FORWARD, THAT WAS
ALL
KNOWN AT THE FIRST TRIAL.
>> AT THE TIME OF THE TRIAL
SHE
ACKNOWLEDGED THAT SHE
HAD ORIGINALLY TOLD EVERYONE
THAT LISA RAN AWAY
BECAUSE
SHE WAS PREGNANT.
AND SO THAT DID COME OUT.
WHAT DID NOT COME
OUT WHICH
IS SIGNIFICANT AND ALSO
EVALUATING MR. DAVIS
TESTIMONY IS
THAT THERE WERE
TWO MEMORANDUMS IN THE
PROSECUTOR'S FILE FROM
HIS
INTERVIEWS OF KATHY STEVENS
IN MARCH OF 195.
THESE MEMORANDUMS
INDICATED
THAT WHEN HE FIRST BROUGHT
HER IN TO INTERVIEW HER SHE
STUCK
TO HER STORY.
SHE SAID LISA RAN AWAY
BECAUSE SHE WAS PREGNANT.
AND THAT
AT THE END OF THAT
INTERVIEW SHE WAS
MAINTAINING THAT.
AND THEN FOR THE
WEEKEND SHE
CALLED BACK AND THEN SHE
CHANGED HER STORY.
TO SOMETHING
SIMILAR TO THE
NEW VERSION ALTHOUGH THE
VERSION WAS DIFFERENT IN
THE
MEMORANDUM THAT MR. BINITA
HAD.
THOSE MEMORANDUMS THAT
WERE
ESTABLISHED WERE NOT
DISCLOSED.
>> AND THAT WE DEALT WITH
IN
THE LAST --
>> AND THIS COURT DEALT WITH
TO TO THE EXTENT THAT
THIS
COURT DIDN'T FIND THAT ALONE
UNDERMINES CONFIDENCE IN
THE
OUTCOME.
AND SO THAT'S GOT TO BE
CONSIDERED IN
CONTEMPLATE
SKRUFRPBGS WITH MR. DAVIS.
AND WHAT MR. DAVIS ASKED IS
THAT
ARSTEVENS TESTIFIED AT
THE TIME OF TRIAL THAT AFTER
SEEING LISA DECARR IN
THE
HOUSE IN HER HOUSE AT
APPROXIMATELY 9:00 A.M.,
BEING SEXUALLY
ASSAULTED BY
WAYNE TOMPKINS AND OFFER
LISA DECARR YELLED AT HIM,
GO GET
HELP.
CALL THE POLICE.
KATHY STEVENS LEFT FROM
HEARING THAT, WENT TO
THE
CONVENIENT STORE NEARBY.
RAN INTO JUNIOR DAVIS AND
TOLD HIM WHAT
WAS GOING ON.
>> DID SHE TESTIFY AT TRIAL
SHE HAD ACTUALLY SEEN HIM
ON
CROSS-EXAMINATION EARLY
YESER IN THE MORNING?
>> SHEDY
INDICATE THERE HAD
BEEN AN ENCOUNTER WITH HIM
AT 6:00 A.M. AT
THE
CONVENIENT STORE WHEN HE
APPEARED TO BE DRUNK.
>> DID SHE
TESTIFY THERE WAS
TWO ENCOUNTER KWS HIM?
>> YES.
BECAUSE SHE SAYS
ORTESTIMONY
IS THAT BECAUSE JUNIOR DAVIS
DIDN'T THINK IT
WAS
SIGNIFICANT THAT'S WHY I
NEVER CONTACTED THE POLICE.
DESPITE LISA
DECARR'S PLEA
THAT SHE CONTACT THE POLICE.
>> HELP ME OUT
HERE.
YOU SAY THAT KATHY STEVENS
WAS THE CRITICAL WITNESS.
>>
YES.
>> AND WE KNOW HER
CREDIBILITY IS IMPORTANT.
>>
YES.
>> YOU KNEW ABOUT THE
BOYFRIEND AT THE TIME SHE
TESTIFIED;
RIGHT?
>> SHE MENTIONED HIS NAME IN
HER TESTIMONY, YES.
>>
WHAT IN THE RECORD GIVES
US -- WHAT DOES THE RECORD
SHOW AS TO WHAT EFFORT
WAS
MADE BY THE DEFENSE TO FIND
AND DEMOST AND BRING JUNIOR
DAVIS IN AS
A WITNESS.
>> JUNIOR DAVISES' NAME
LIVED AS JUNIOR DAVIS
IS
MENTIONED IN A POLICE REPORT
FROM 1984.
IN THAT POLICE REPORT
THE
POLICE OFFICER INDICATES HE
HAS NO PHFGS.
THAT'S ALL THAT
APPEARS.
JUNIOR DAVIS INTERVIEW HAS
NO INFORMATION.
BARBARA DECARR ALSO
SAY THAT
JUNIOR DAVIS DIDN'T SEEM TO
BE THAT UPSET.
THAT'S THE
INFORMATION.
>> I MEAN FROM THE
DEFENDANTS.
THE DEFENDANT NEW
THAT
JUNIOR DAVIS WAS THE
VICTIM'S BOYFRIEND.
>>
CORRECT.
>> AND THAT THEY HAD FAULT.
ACCORDING TO THE
DEPOSITION.
WASN'T THERE SOME TESTIMONY
FROM MR. STEVENS THAT THEY
HAD
ARGUED?
>> NO -- I DON'T BELIEVE
FROM KATHY STEVENS.
AS I RECALL
FROM HER TRIAL
TESTIMONY THAT SHE INDICATED
SHE WAS NOT AWARE OF
ANY
FIGHT.
SHE SAID, ON OCCASION THEY
WOULD HAVE BRIEF ARGUMENTS
BUT
WITHIN FIVE MINUTES IT
WAS OVER.
>> AT LEAST WE KNOW THAT
SHE
SAYS THAT SHE CALLED JUNIOR
DAVIS.
WHY WOULDN'T THAT BE
THE
WITNESS OF THE DEFENSE KNEW
ABOUT AND COULD
HAVE -- FIRST, YOUR
HONOR.
I DID SEE IN THE ALTERNATIVE
AS BOTH BRADY AND
INEFFECTIVE
ASSISTANCE OF
TRIAL COUNSEL AND FAILING TO
CONTRACT JUNIOR DAVIS.
BUT
THE STATE'S RESPONSE AND
THEIR ANSWER BRIEF IS AS TO
THE INEFFECTIVENESS
CLAIM
THEY SAID THERE'S NOTTING
THERE TO CAUSE A DEFENSE
ATTORNEY TO
CONTACT JUNIOR
DAVIS.
PAGE 31 OF THE ANSWER BRIEF
"TRIAL COUNSEL CAN'T
BE
DEEMED INEFFECT THETIVE TO
PERCEIVE JUNIOR DAVIS AS A
WITNESS" IN
ADDITION TO THE
POLICE REPORT AND TAKING HIS
DEPOSITION WHICH
ELICITED
DAVIS HAD NO INFORMATION
ABOUT LISA DISAPPEARANCE OR
DEATH
TRIAL COUNSEL HAD
REPORT FROM DETECTIVE BYRD
OF JUNE 5th, 1984
THAT
BARBARA DECARR STATED WHEN
SHE TOLD THE BOYFRIEND LISA
WAS MISSING
HE DIDN'T SEEM
TO BE CONCERNED.
WHAT THE DEFENSE ATTORNEY AT
ANY TIME
HAVE ARE THE POLICE
REPORTS THAT HAD THE
INTERVIEW OF MARINE
SWEENEY
AND MIKE WILLIS WHICH GAVE A
COMPLETELY DIFFERENT ACCOUNT
OR
DESCRIPTION OF JUNIOR
DAVIS' REACTION TO
DISAPPEARANCE OF
LISS
ADECARR.
AND IF THAT REPORT DIDN'T
SERVICE UNTIL 2001,
THAT
PRECIP TATED LOOKING FOR HIM
AGAIN IN 2001.
FOR THE RECORD, WE DID
PLEA
AGAIN THAT IN 1989 WHEN CCR
GOT THIS CASE UNDER WARRENT
WE MADE AN
EFFORT TO FIND
JUNIOR DAVIS BECAUSE HIS
NAME IS MENTIONED.
AT THAT
POINT IN TIME WE
CALLED THE PHONE NUMBER THAT
WAS LISTED IN THE
POLICE
REPORT AND YOU WERE TOLD
THERE WAS NO DAVIS AT THAT
PHONE
NUMBER.
AND WE DIDN'T HAVE THE
RESOURCES BACK IN 1989 TO DO
THE
COMPUTER SEARCHES THAT
CAN BE DONE NOW.
WE MADE AN EFFORT TO
LOCATE
HIM.
WE PLEADED THAT.
BUT THERE WAS NOTHING BEYOND
HIS NAME
AS MENTIONED.
AND THE POLICE SAYING THAT
HE HAD NO
SIGNIFICANT
INFORMATION TO CAUSE US TO
BELIEVE THAT THERE WAS
SOMETHING
THERE.
AND AS THE STATE SAID IN THE
ANSWER BRIEF TRIAL
COUNCIL --
COUNSELS CAN'T BE
DEFICIENT IN HIS PERFORMANCE
BECAUSE THERE WAS NOTHING
TO
REALLY CAUSE HIM TO BELIEVE
THAT JUNIOR DAVIS HAD ANY
SIGNIFICANT
INFORMATION.
EVERYTHING INDICATED THE
CONTRARY.
SO FIRST, THE CAR
WAS
DISPOSED OF IN 2001.
AND THE STATE IN THEIR
ANSWER BRIEF SUPPORTS
THAT.
AS TO WHAT'S SIGNIFICANT
THOSE POLICE REPORTS WHICH
PROVIDE
INFORMATION THAT
MAKES JUNIOR DAVIS
SIGNIFICANT AND THEN WE
CONTACTED
JUNIOR DAVIS,
JUNIOR DAVIS SAYS THAT
DIDN'T JOE CURE.
HAD SOMEONE COME
TO HIM AND
SAID THESE ARE THE -- LISA
DECARR WAS BEING ATTACKED
AND
ASKED THE POLICE BE
CALLED HE WOULD HAVE DONE
SOMETHING.
>> IT'S
STILL GOING BACK TO
MY CONCERN, WHICH IS THAT IT
WOULD BE IMPEACHMENT OF
ONE
OF THREE WITNESSES OF THE
STATE.
THAT'S -- THAT
DOESN'T
INDEPENDENTLY POINT TO
ANOTHER PERSON AS BEING
PERPETRATOR OF
THIS MURDER
AND IT DOESN'T PROVIDE IN
ITSELF INFORMATION THAT
WOULD
LEAD TO AN ACQUITTAL.
IT WOULD BE THE QUESTION OF
IMPOSED ON WHAT
KATHY
STEVENS TESTIFIED AT TRIAL
WHETHER THAT IMPEACHMENT
IS -- WOULD
SO DESTROY HER
CREDIT THABL THE JURY
COULDN'T HAVE BELIEVED
ANYTHING
SHE SAID.
ISN'T THAT HOW WE HAVE TO
LOOK AT IT?
>> NOT
QUITE.
AS TO ONE ASPECT THERE WAS
BRADY MATERIAL PRESENTED IN
1989 FOR
BARBARA DECARR.
AT THAT TIME IT WASN'T FOUND
TO BE MATERIAL IN THE
SENSE
IT BY ITSELF WASN'T
SUFFICIENT TO UNDERMINE
CONFIDENCE IN THE
OUTCOME IN
AT THIS POINT IN TIME THAT
HAS TO BE
EVALUATE --
EVALUATED
CUMULATIVELY.
THE BRADY MATERIAL HAD BEEN
PLED AS TO THE
OTHER TWO
WITNESSES THAT NEEDS TO BE
EVALUATED UNDER THE STANDARD
IN
THE STATE.
BUT BEYOND THAT AS TO KATHY
STEVENS, THE STATE SAYS,
WELL,
IT CAME OUT AT TRIAL
SHE HAD LIED.
WHAT SHE HAD LIED ABOUT
ACCORDING TO
HER TESTIMONY
WAS THAT SHE HAD FABRICATED
THE STORY BECAUSE SHE
THOUGHT
LISA HAD RUN AWAY.
THAT WAS CONSISTENT WITH
LISA RUNNING A AWAY.
AND
WHAT JUNIOR DAVIS'
TESTIMONY PROVIDES IS AN
INDICATION THAT HER
NEW
STORE WORRY THAT STORY AT
TRIAL SHE WAS SAYING WAS
TRUE HAD FALSE
INFORMATION
IN IT.
AND IT'S SIGNIFICANTLY
FALSE.
BECAUSE HER
EXPLANATION FOR
WHY SHE WOULD HAVE DONE THIS
IS BECAUSE HER --
LISA
DECARR'S BOYFRIEND WASN'T
CONCERNED.
AND REMEMBER --
>>
IT'S NOT QUITE WHAT SHE
SAID.
SHE SAID WHY DIDN'T YOU CALL
THE
POLICE.
I GUESS I WAS A LITTLE BIT
SCARED AND NOT KNOWING WHAT
TO
EXPECT WHEN THEY GOT
THERE.
I JUST TOLD YOU JUNIOR NO
WHAT WAS GOING
ON.
HE WALKED AWAY LIKE IT WAS
NOT IMAGE.
I JUST KIND OF SCARED
AND
WENT TO SCHOOL.
YOU DECIDED NOT TO GET UP
INVOLVED.
>>
YES.
>> IT'S NOT QUITE THAT SHE
ONLY DIDN'T SAY ANYTHING
BECAUSER
DAVIS DIDN'T.
ISN'T THAT CORRECT?
>> THERE'S TESTIMONY TO
THAT
EFFECT.
BUT I BELIEVE I -- I DON'T
REMEMBER WHETHER YOU
ARE
READING FROM CROSS OR
REDIRECT OR THE DIRECT.
BUT AT DIFFERENT
TIMES THE
SIGNIFICANCE OF JUNIOR DAVIS
MAY HAVE WAXED AND WAYNED
A
LITTLE BIT.
IT IS IMPORTANT TO HER STORY
THAT SHE GOES TO HIM
AFTER
LISA HAS SAID TO CALL THE
POLICE AND HE DOESN'T SEEM
TO BE
CONCERNED.
AND THAT'S THE TURNING POINT
IN HER VERSION OF THE EVENTS
AS
TO WHEN SHE NO LONGER
PURSUES IT.
>> THAT SEEMS
SOMEWHAT
INCREDIBLE STATEMENT TO ME.
FROM THE SERVICE.
THE DEFENSE
COUNSEL JUMP ON
THAT.
>> THE DEFENSE
COUNSEL -- ATTEMPTED
TO.
BUT I SUBMIT HE DIDN'T HAVE
ALL THE TOOLS TO GO FURTHER.
IN
ADDITION WHAT THE DEFENSE
DIDN'T KNOW WHICH CAME OUT
IN THE MEMORANDUM IN
1989
ASKED THAT WE INTERVIEW BARB
KATHY STEVENS IN 199 AND
DURING THE
INTERVIEW SHE
REVEALED WHAT HAPPENED THAT
WEEKEND BEFORE SHE
CHANGED
HER STORY WAS THAT SHE HAD A
BOYFRIEND IN JAIL AND SHE
WANTED
TO GET IN TO SEE HIM.
MR. BO ANY -- BONITA MADE
ARRANGEMENT FOR HER TO
BE
ABLE TO SEE THE BOYFRIEND.
KATHY STEVENS REMEMBERED IN
CONTACT WAS
IN AN
EMOTIONALLY TROUBLED CLASS
WITH LISA DECARR.
THEY WERE BOTH
EMOTIONALLY
TROUBLED STUDENTS WITH
PROBLEMS.
IT SEEMS THAT IN ORDER TO
BE
ABLE TO FULLY CONVEY THAT
THIS GIRL WHO IS CLAIM I
THINK SHE SAW
THIS ATTACK,
AT THE TIME THAT THE MURDER
WAS OCCURRING, THE STORY
WAS
JUST NOT TRUE.
AND THE BEST WAY TO DO THAT
WAS TO SHOW THAT SOME
ASPECT
OF IT WE CAN SHOW WASN'T
TRUE.
FOR CONVERSATION WITH
JUNIOR
DAVIS DIDN'T HAPPEN.
>> ARE THERE OTHER THINGS?
DIDN'T SHE
SAY THERE WAS
SOMEBODY WATCHING IT WHILE
IT WAS OCCURRING?
>>
ABSOLUTELY.
HE DID SAY THAT.
DID SHE SAY ANOTHER FRIEND
CALLED HER
AFTERWARDS?
>> YEAH.
BUT, AGAIN, TRIAL COUNSEL
DIDN'T HAVE
BONITA'S
MEMORANDUM WHICH GAVE
DIFFERENT VERSIONS OF THE
EVENT.
THE
MEMORANDUM WHEN SHE
INITIALLY TOLD THE STORY SHE
NEVER MENTIONED THE
THIRD
PERSON BEING PRESENT AND
THAT MEMORANDUM SHE HAS THE
ORDER OF THE
TRIPS AND WHO
WAS PRESENT TO THE DIFFERENT
TRIPS DIFFERENT A AND
SHE
SAID IN THAT MEMORANDUM SHE
NEVER SPOKE TO WAYNE
TOMPKINS
HERSELF.
THEN AT THE TRIAL THAT FLIPS
AGAIN TRIAL COUNSEL DID HAVE
THAT
MEMORANDUM FROM MARCH
OF 1985 AT THE TIME OF
TRIAL.
YOU'RE WELL INTO
YOUR
REBUTTAL.
I WOULD LIKE TO RESERVE THE
REST OF MY TIME.
>>
THANK YOU.
>> MAY IT PLEASE THE COURT.
I'M BOB LANDRY
REPRESENTING
THE STATE.
THE TRIAL COURT FOUND ON
THIS LATEST POST
CONVICTION
LIT TKPAEUGS.
>> WOULD YOU PULL THE
MICROPHONE DOWN A
LITTLE
BIT.
>> THE TRIAL COURT FOUND
THAT MR. DAVIS WAS KNOWN
TO
THE DEFENDANT AS FAR BACK AS
1989 AS FAR BACK AT THE TIME
OF TRIAL
IN 194 AND 985.
--
>> WELL AS FAR AS THIS IS
SUMMARY
DENIAL.
>> YES, MA'AM.
>> IF WE WILL GET INTO WHAT
THE
TRIAL COURT FOUND, DON'T
WE HAVE TO REALLY TAKE THIS
INTO LIGHT MOST
FAVORABLY TO
THE DEFENDANT AND HAVE -- DO
IT ON SOMETHING LIKE A
TIME
BAR OR HAVE AN EVIDENTIARY
HEARING ON THIS?
>> NOT FOR THIS
PARTICULAR
FACT.
BECAUSE IT'S A MATTER OF
RECORD IN THE FILES.
THE
-- FOR EXAMPLE GOING TO
HIS CLAIM OF THE BRADY
VIOLATION THE STATE DID
NOT
WITHHOLD OR SUPPRESS ANY
INFORMATION.
MR. DAVIS GAVE A
STATEMENT
TO DETECTIVE BETTER -- BURKE
IN WHICH HE SAID --
BURKE
INTERVIEWED HIM AND THE
INFORMATION IN THAT WAS HE
DIDN'T KNOW
ANYTHING ABOUT
HER DISAPPEARANCE IN THE
LAST TIME HE HAD SEEN LISA
WAS
A WEEK BEFORE HAND AND
THAT INFORMATION WAS GIVEN
TO THE DEFENSE.
AT
THE TIME OF TRIAL KATHY
STEVENS CAME FORWARD AND
GAVE HER STATEMENT ABOUT
HER
RECK HREBGION OF SEEING!!!!!!!!!!!!
SEEING -- RECOLLECTION
OF
SEEING JUNIOR DAVIS AT THE
CONVENIENT STORE.
SHE WAS
CROSS-EXAMINED.
EVERYBODY KNEW AT THE TIME
OF TRIAL AND EVEN
BEFORE
TRIAL WHO JUNIOR DAVIS, WHAT
HIS RELATIONSHIP WAS TO
EVERYBODY
AND IF THE DEFENSE
WANTED TO GO OFF AND
INTERVIEW HIM.
THEY
COULD.
THE COMPLAINT I GUESS THAT
THE DEFENSE IS MAKING HERE
IS THAT
THE STATE
NEVER -- THE STATE SOMEHOW
SUPPRESSED OR WITHHELD
JUNIOR
DAVIS.
I DON'T SEE HOW THAT
HAPPENED.
I THINK THAT WHAT IF
I'M
UNDERSTANDING IS THAT THIS
GOES BACK TOCK THE INTERVIEW
WITH
SWEENEY AND WILLI IS
THAT WOULD HAVE PAVED
THE -- MADE THE DEFENSE
KNOW
THAT JUNIOR DAVIS WAS MORE
SIGNIFICANT THAN THEY MIGHT
HAVE
THOUGHT ORIGINALLY.
>> WELL, THE ONLY THING THE
BASICALLY SAID IN
THAT
INTERVIEW WITH SWEENEY AND
WILLIS IS THAT AFTER THE
DISAPPEARANCE
DAVIS IS
APPARENTLY TALKING TO
SWEENEY AND WILLIS AND
TRYING TO MAKE
INQUIRY ABOUT
WHETHER OR NOT THEY HEARD
ANY INFORMATION AND HOW
UPSET
HE IS OR ALLEGEDLY
UPSET THAT SHE DIDN'T
CONTACT HIM FOLLOWING
HER
DISAPPEARANCE WHEN EVERYONE
WAS UNDER THE IMPRESSION SHE
RAN
AWAY.
>> I'M UNDERSTANDING THEY
FELT THAT INFORMATION WHICH
WAS
THE CLAIM WAS NOT
DISCLOSED WOULD HAVE PUT
THEM ON NOTICE THAT
THEY
REALLY NEEDED TIME OF JUNIOR
DAVIS TO SET OUT TO TO.
LET'S -- I
GUESS -- LET'S
UNRAVEL THIS MIGHT TAKE A
WHILE.
LET ME -- YOU KNOW,
I'VE
READ KATHY STEVEN'S
TESTIMONY AT TRIAL.
AND SHE'S NOT THE
STRONGEST
WITNESS.
I MEAN, A LOT OF
INCONSISTANCIES IN
HER
STATEMENT.
WHY WOULDN'T BIT A BETTER
THING TO HAVE AN
EVIDENTIARY
HEARING ON TO HEAR WHAT
JUNIOR DAVIS HAS TO SAY WHAT
THE
TRIAL JUDGE REALLY
EVALUATE THIS IS SIGNIFICANT
IMPEACHMENT OF KATHY
STEVENS
OR NOT.
>> WELL, WE KNOW WHAT HE HAS
TO SAY IN TERMS OF
HIS
KNOWLEDGE OF THE CRIME AND
THAT IS NOTHING.
ALL HE SAYS IN HIS
AFFIDAVIT
BASICALLY IS THAT HE HAD
DISAGREEMENT WITH KATHY
STEVEN'S
TESTIMONY ABOUT
MEETING A THE CONVENIENT
STORE AT THAT -- AT THAT
DAY
OF THAT INCIDENT.
AND ALL THAT IS JUST
MINOR -- A
MINOR
INCONSISTANCY WITH THE REST
OF -- HE DOESN'T IMPEACH
HER
TESTIMONY AT ALL ABOUT WHAT
SHE SAW AT THE HOUSE THAT
DAY.
IT
DOESN'T IMPEACH DECARR.
>> IT DOESN'T IMPEACH
DECARR!!!!!!!!!!!!
DECARR -- THE MOTHER OR THE
JAILHOUSE
PERFORMANCE.
BUT IT'S KIND OF SHE
TESTIFIED AT TRIAL THAT THE
BOYFRIEND
AND EVEN THE
TESTIMONY SHE WAS A LITTLE
BIT STRANGE.
SHE TOLD HIM WHAT
HAPPENED
AND HE GOES, WELL THAT'S NO
BIG DEAL OR WALKS AWAY.
AND THAT'S
A DETAIL THAT HAS
TO DO WITH HER WHOLE
RECOLLECTION OF
WHAT
HAPPENED.
SHE NEVER SAW HIM AND WHAT!!!!!!!!
WHAT -- THEN
SHE WAS WHINING
AT TRIAL.
-- LYING AT TRIAL.
IF SHE WAS LYING ABOUT
THAT
WHY WASN'T SHE LYING ABOUT
SOMETHING ELSE.
>> NOT
NECESSARILY LYING.
SOMEONE IS MISTAKEN OR
FORGETTING WHAT IT MAY
BE.
BUT THE POINT OF IT IS IT
DOESN'T --
>> I'M TRYING TO PLAY --
I'M
NOT SURE ABOUT WHETHER AN
EVIDENTIARY HEARING IS
NEEDED.
I
WANTED TO PLAY DEVIL'S
ADVOCATE HERE ON
HOW -- WHETHER THIS IS
REALLY
HOW SIGNIFICANT THIS
IMPEACHMENT WOULD BE AND IS
IT NOT BETTER TO LET A
TRIAL
JUDGE ACTUALLY LISTEN TO THE
TESTIMONY?
>> I THINK THE
TRIAL JUDGE
IN DENYING RELIEF -- WHAT
THE ALLEGATIONS WERE THAT
WERE
PRESENTED IN THE
AFFIDAVIT AND REVIEWED THE
RECORD EVIDENCE,
THE
TESTIMONY AND DETERMINE THAT
IT WAS NOT THE KIND OFERS
THAT WOULD
HAVE MADE ANY
DIFFERENCE IN THIS CASE.
>> LET ME ASK YOU THIS
ONE
QUESTION MR. LANDRY.
IF WE LOOK AT THE TOTAL
PICTURE.
AND THERE
IS AN EXPLANATION
OF A YOUNG WOMAN COMING TO A
HOME AND SEEING SOME TYPE
OF!!!!
OF -- LET'S TAKE KNIT THE
LIGHT OF THE ATTACK
OCCURRING --
AND THEN
EXPLAINS THAT SHE DIDN'T DO
ANYTHING EVEN AFTER
BEING
REQUESTED TO DO SO BECAUSE
SHE WENT AND TALKED WITH
SOMEONE
ELSE.
AND THAT EXPLAINS THE WAY
THE ENACTION.
WOULD THAT PLACE KNIT
A
DIFFERENT LIGHT FOR THE
IMPEACHMENT?
OR IS THAT STILL ALONG
THE
LINES OF JUST A MORE -- JUST
A FACTOR THAT IS REALLY NOT
VERY
SIGNIFICANT AND JUST A
MATTER OF A SMALL
IMPEACHMENT UNDER THE
SCENARIO
WE'RE DEALING WITH.
>> I'M NOT SURE I UNDERSTAND
THE
QUESTION.
BECAUSE --
>> THE QUESTION IS THAT IF
SHE -- AS I
UNDERSTAND THE
FACT THIS WITNESS TESTIFIED
THAT SHE OBSERVED
SYSTEM
TYPE OF ATTACK OR WRESTLING
OR SOMETHING GOING ON.
AND ALSO SAID
THAT SHE'S
REQUESTED TO SEEK HELP.
THAT'S CORRECT.
>> IS THAT A
FAIR STATEMENT?
>> IT ATTEMPTS TO EXPLAIN
WHY SHE DID NOT SEEK
ANY
HELP BY VIRTUE OF MEETING
WITH THE BOYFRIEND AS TO THE
CONVENIENT
STORE OR 711 AND
THAT HE WASN'T CONCERNED SO
MAYBE THIS WAS NO BIG
DEAL.
DOES THAT PLACE THE
IMPEACHMENT IN A DIFFERENT
LIGHT THAN AS IT
JUST
HAPPENS TO BE AS A PART OF
THE SCENARIO THAT'S
IMPEACHED.
ONE
FACT.
WELL, I DON'T KNOW THAT -- I
DON'T KNOW HER TESTIMONY WAS
THAT
SHE DID NOT GO TO THE
POLICE BECAUSE SHE TALKED TO
HIM.
I MEAN, MAYBE
YOU COULD DRAW
THAT CONCLUSION OR DRAW THAT
INFERENCE FROM IT.
I THINK
SHE IS REPORTING THE
CHRONOLOGY GIVE OF EVENTS
THAT OCCURRED IN
HER
RECOLLECTION.
THAT AFTER JULIA DAVIS
APPARENTLY SEEMED TO
BE
DISINTERESTED OR WHATEVER,
AND -- I MEAN JUNIOR DAVIS'
STATEMENT TO
THE POLICE WAS
THE FAMILY WAS A MESS.
THERE WAS CONFLICT AND SO
IT'S
QUITE -- HIS REACTION
IS QUITE UNDERSTANDABLE FROM
HER PERSPECTIVE.
BUT
SHE THEN TESTIFIED THAT
AFTER JUNIOR DAVIS
APPARENTLY WALKED AWAY
OR
EXPRESSED HIS INTEREST THEN
SHE DIDN'T KNOW WHAT TO DO
AS SHE JUST
WENT OFF TO
SCHOOL AND DIDN'T THINK IT
WAS IMPORTANT ENOUGH TO GO
TO
THE POLICE AT THAT POINT.
>> DOES THAT CHANGE THE
IMPORTANCE OF THE
NEED FOR
AN EVIDENTIARY HEARING THEN
IT WAS RAINING THAT DAY OR
WASN'T
RAINING.
JUST THE NATURE OF WHAT THE
TESTIMONY IS IMPORTANT FOR
US TO
LOOK AT AND THEN WHAT
IS THE SIGNIFICANCE?
>> WELL, YEAH.
I MEAN,
CERTAINLY THERE WILL
BE DEGREES OF IMPORTANCE AND
ALL OF THAT.
BUT I
DON'T SEE THAT THIS
RISES TO THE EVENT OF
CHANGING ANYTHING.
BECAUSE
JUNIOR DAVIS STILL
HAS NOTHING TO SAY ABOUT THE
CRIME OCCURRING.
HE
DOESN'T KNOW WHETHER
KATHY STEVENS WAS THERE OR
NOT AND WHETHER THERE WAS
A
FIGHT OR A STRUGGLE OR NOT.
HE HAS NOTHING TO SAY TO
IMPEACH MR. TOKO
WHO SAID
THE -- MR. TURCO --
>> I'M HAVING DIFFICULT WITH
YOUR
RESPONSE TO THE CHIEF'S
QUESTION.
BECAUSE ON THE ONE HAND, YOU
SEEMED
TO SAY, YES IT IS
VERY SIGNIFICANT.
THE -- AND THEN ON THE OTHER
HAND
YOU LOOK TO THE
TESTIMONY OF THESE OTHER 22
WITNESSES ASIDE
FROM
STEVENS.
WE'RE DOING THIS WITH OUT
ANY KIND OF A HEARING,
YOU
KNOW THAT WOULD HAVE SORTED
IT OUT.
I WOULD LIKE TO SORT
OF
REASK THE SAME QUESTION THAT
THE CHIEF HAS ASKED YOU.
AND THAT IS
THAT ONE OF THE
GLARING THINGS IN THIS CASE
IS ABOUT MISS STEVENS
AND
THAT IS THAT SHE REALLY
VIVIDLY DESCRIBES SOMETHING
VERY TERRIBLE
GOING ON, THAT
IS THAT HER FRIEND IS BEING
ATTACKED.
AND THAT IS SHE
NOT
ONLY -- SHE NOT ONLY IS
BEING I TACKED BY SHE'S
CRYING OUT FOR
HELP.
AND SO ONE OF THE GLARING
ISSUES IN THIS CASE WITH
MISS STEPHENS
IS, WELL, MY
GOSH, YOU KNOW, YOU'RE THIS
GIRL'S BEST FRIEND AND YOU
ARE
WATCHING HER BEING
SEXUALLY ASSAULTED AND
CRYING OUT FOR HELP WHY
IN
THE WORLD DIDN'T YOU
IMMEDIATELY CALL THE POLICE
OR GO TO -- YOU
KNOW, GO GET
SOME HELP.
AND YOU KNOW, PERHAPS
PREVENT THIS
TERRIBLE
TRAGEDY FROM OCCURRING.
AND SO WHAT HER EXPLANATION
IS FOR NOT
DOING IS VERY
IMPORTANT TO THE CASE IT
SEEMS.
AND I THINK YOU
ACKNOWLEDGE
THAT.
AND TAKING ON YOUR ARGUMENT
HEAD ON I WISH YOU
WOULD
RESPOND AGAIN AND SAY
ASSUMING THAT THE ARGUMENT
IS THAT, THAT'S
WHAT
HAPPENED.
THAT'S -- AND HERE SHE IS
AFTER HAVING WITNESSED
THAT
AND AFTER BEING APPEALED TO
GET HELP THAT SHE SAYS, WELL,
AND NOW
THIS IS REALLY
ALMOST A HYPOTHETICAL,
BECAUSE I'M NOT CERTAIN THAT
THIS
IS SUPPORTED BUT YOUR
OPPONENT IS SAYING THAT IN
ESSENCE SHE SAYS WELL,
HER
BOYFRIEND WHOM I SAW RIGHT
AWAY AFTER THAT SAID'S NO
BIG DEAL AND
AS A RESULT OF
THE BOYFRIEND REALLY MAKING
SAYING IT'S NO BIG
DEAL,
THAT, THAT'S THE REASON I
DIDN'T GO FOR HELP.
SO HELP US WITH WHY
IT
WOULDN'T BE IMPORTANT THEN
TO KNOW WHAT THE BOYFRIEND
HAS TO SAY AS
TO WHETHER OR
NOT HE WAS THE CAUSE OR
EXCUSE THAT SHE HAS FOR
NOT
SEEKING HELP OR NOT.
>> WELL, I MEAN, APPARENTLY
MR. DAVIS'
AFFIDAVIT IS
BASICALLY, I DIDN'T SEE
KATHY STEVENS THAT DAY.
ASSUMING
THAT SHE SAYS THAT
THE REASON SHE DIDN'T GO FOR
HELP IS HIM, THAT'S
NO
LONGER AVAILABLE TO HER.
TO BE ABLE TO SAY THAT THE
REASON I DIDN'T
GO FOR HELP
WAS BECAUSE OF SEEING AND
TALKING TO THE BOYFRIEND AND
HIM
SAYING IT'S NO BIG DEAL.
SHE DOESN'T HAVE THAT ANY
MORE AS AN
EXCUSE.
FOR NOT SEEKING HELP.
AND SO ISN'T THAT CRITICAL
TO HER
CREDIBILITY AS TO WHY
SHE DIDN'T SEEK HELP, IF SHE
INDEED WITNESSED ALL
THIS,
IF THERE'S A REAL
INCONTEMPLATE GREWITY WITH
HAVING WITNESSED
THIS ATTACK
AND THE CRY FOR HELP AND
THEN NOT DOING SOMETHING
ABOUT
IT.
>> I DON'T THINK IT'S
CRITICAL.
AND IF YOU LOOK AT
THE
CLOSING ARGUMENT OF DEFENSE
COUNSEL HE WAS POINTING OUT
WHAT HE
THOUGHT WERE THE
ALLEGED INCONSISTANCY IN
KATHY STEVENS TESTIMONY.
HE
SAID FIRST OF ALL SHE
ADMITTED ABOUT HAVING LIED
TO MR. PONITA THE FIRST
TIME
SHE CALLED AND ALL THAT.
AND ALSO THE INFORMATION
ABOUT KATHY
STEVENS TALKING
TO PROSECUTOR BONIATA.
HE DEPOSED HER BEFORE HAND.
HE
KNEW ALL ABOUT AND
QUESTIONED.
HE GOT HER TO ACKNOWLEDGE
THAT SHE LIVE
-- LIED TO
MR. BONITA.
HE ACKNOWLEDGED TO
ACKNOWLEDGE THAT SHE
HAD
LIED TO MISS DECARR, THE
MOTHER ABOUT WHETHER THE
LISA HAD RUN AWAY
OR NOT.
HE ALSO POINTED OUT IT
DIDN'T -- THE UNUSUAL NATURE
OF WHY
DIDN'T KATHY STEVENS
COME FORWARD EARLIER.
STEVENS APPARENTLY
HAD
EARLIER SAID THAT SHE
INITIALLY THOUGHT THAT KATHY
HAD RUN
AWAY.
AT LEAST HAD RUN AWAY.
AND THEN WHEN -- IT WAS A
YEAR LATER THAT
THE BODY WAS
DISCOVERED.
AND STEVENS AT ANY TIME COME
FORWARD THEN AND
EVEN THEN
UNTIL MARCH OF 1985.
ALL OF THIS --
>> AFTER THE CRIME;
IS THAT
CORRECT?
>> COUPLE OF YEARS AFTER THE
CRIME.
THAT'S
HOW LONG AFTER THE
CRIME BEFORE SHE CAME
FORWARD?
>> I WOULD
THINK ABOUT A
YEAR AND A HALF.
IT WAS -- IT WAS ABOUT A
YEAR AFTER THE
DISAPPEARANCE
OF THE BODIES DISCOVERED,
MR. TOMPKINS WAS ARRESTED
OR
INDICTED IN SEPTEMBER OF '84
AND THEN SHE CAME FORWARD IN
MARCH OF
'85.
SO THE DEFENSE HAD AMPLE
OPPORTUNITY TO IMPEACH HER
CREDIBILITY IN
HIS CLOSING
ARGUE.
I SAY THAT THIS JUNIOR
AFFIDAVIT ADDS VERY
LITTLE
TO THAT.
AND IF YOU WANT TO MAKE THE
ULTIMATE -- BECAUSE HE
WAS
INEFFECTIVE FOR NOT HAVING
CALLED JUNIOR DAVIS THE
ANSWER TO THAT
WOULD BE THAT
HE WOULD THEN HAVE TO MAKE A
DECISION TO FORFEIT
OPEN
OPENING AND CLOSING ARGUMENT
BY THE IMPORTANCE OF
OPENINGED A
CLOSING ARGUMENT
IS WELL AS IMPORTANT AS THIS
COURT'S DECISION.
DID YOU
TAKE ON HIS ARGUMENT
THAT.
>>> DID YOU TAKE ON THE
ARGUMENT
THAT KATHY STEVENS
DID USE HER CONVERSATION
WITH THE BOYFRIEND AS
AN
EXCUSE FOR NOT COMING
FORWARD?
IS HE CORRECT ABOUT THAT?
OR DOES
THE RECORD NOT
SUPPORT THAT?
IN OTHER WORDS WHAT DID
KATHY STEVENS SAY
IN HER
DEPOSITION AND THEN IN HER
TRIAL TESTIMONY?
DID SHE REALLY USE
THE
MEETING WITH THE BOYFRIEND
AS THE REASON THAT SHE
DIDN'T COME
FORWARD?
>> WHAT'S HER CLAIM ON THAT?
>> I'M NOT SURE WHETHER
SHE
SAID IT'S THE REASON.
I THINK CERTAINLY SHE
DESCRIBED THE
CHRONOLOGY OF
WHAT HAPPENED.
SHE SAW THE ATTACK AT THE
HOUSE.
SHE
GOES TO THE CONVENIENT
STORE AND RUNS INTO JUNIOR
DAVIS.
TELLS HIM OR
TRIES TO TELL
HIM WHAT'S GOING ON.
HE'S EITHER DISINTERESTED OR
NOT
RESPONDING TO HER
CONCERNS AT THAT POINT.
AND THEN SHE DECIDES AT
THAT
POINT, WELL, YOU KNOW, I
DON'T KNOW IF IT WILL WORK
OUT OR I
SHOULD CALL THE
POLICE.
SHE GOES OFF TO SCHOOL THAT
DAY AND DOESN'T
CALL THE
POLICE.
I MEAN, I DON'T.
>> THE ANSWER OF --
BECAUSE
I READ THE PART IN
THE -- FROM THE TRIAL
TRANSCRIPT.
IT
SOUNDS LIKE SHE DOES
USE -- SHE WAS SCARED AND
SHE ALSO TOLDER AND
JUST
WALKED A -- TOLD JUNIOR AND
HE JUST WALKED AWAY AND
DECIDED NOT TO
GET INVOLVED.
IT'S A FACTOR IN WHAT SHE
TESTIFIED AT TRIAL AS TO
WHY
SHE DIDN'T TELL POLICE.
>> YEAH.
BUT I DON'T KNOW WHETHER
OR
NOT SHE'S SAYING THAT UPON
SEEING JUNIOR'S RESPONSE AND
THEN IT
ACTUALLY WASN'T AS
SERIOUS AS I WAS INITIALLY
LED TO BELIEVE.
THAT MAY
HAVE BEEN THE
REACTION SHE HAD GOTTEN FROM
IT.
TESTIMONY IS WHAT
THE
TESTIMONY IS.
THE JURY NEW AND ASSUMING WE
HAVE TO ASSUME ON THIS
THAT
JUNIOR DAVIS IS CREDIBLE,
THAT HE MADE UP THIS WHOLE
INTERACTION
WITH JUNIOR
DAVIS.
>> UH-HUH.
AND THEN THE -- TO ME THAT
IS A
PRETTY SIGNIFICANT
IMPEACHMENT.
I'M JUST WITH YOU ON THE
FACT THAT I'VE
READ HER
TESTIMONY.
I THINK SHE'S PRETTY
IMPEACHED AS IT IS AT
TRIAL.
NOW HOW MUCH MORE
IMPEACHMENT IT IS.
WHAT IS THE STORY WITH
HER
SAYING THAT THERE WAS A MAN
IN THE ROOM AT THE TIME THAT
SHE
WITNESSED THIS?
>> THAT WAS HER TESTIMONY AT
TRIAL.
>> AND
WAS THAT IMPEACHED?
OR WAS THERE ANY -- DID THE
STATE ASSERT THERE WAS
AN
ADDITIONAL PERSON THAT WAS
WITNESSING THIS ATTACK, A
MAN?
DID WE
EVER FIND OUT WHO
THAT WAS?
>> NO.
NO.
THE DEFENSE AND THE
DEFENSE
CROSS-EXAMINED HER ON THAT.
YOU MEAN THERE WAS ANOTHER
PERSON
WHO WAS THERE AND
WASN'T AND BLAH, BLAH, BLAH.
SHE MAY HAVE BEEN ASKED
WHO
IT WAS OR SHE KNEW HIM.
>> WHAT WAS THE STATE'S
POSITION
ABOUT WHETHER THERE
WAS AN ADDITIONAL INDIVIDUAL
WHO WAS SOMEHOW INVOLVED
IN
THIS WHOLE ODD SEQUENCE OF
EVENTS THAT DAY.
>> THE STATE HAD
THE
POSITION THAT HER TESTIMONY
WAS THAT SHE SAW THAT TOTAL
OF TWO
PEOPLE IN THE ROOM.
ONE WAS SIMPLY THERE
WATCHING.
AND YOU KNOW THE
STATE NEVER
FOUND OUT OR LEARNED WHO THE
OTHER PERSON WAS
ALLEGEDLY.
THAT'S JUST HER TESTIMONY.
BUT YOU HAVE -- THE STATE
HAS
GOTEN A CONVICTION IN
THIS STATE BASED ON THE
TESTIMONY OF THE
JAILHOUSE
INFORMANT AS WELL AS BARBARA
DECARR.
SHE IN FACT, THE
MOST
CRITICAL WITNESS IN THE
STATE'S CASE?
>> I DON'T KNOW IF SHE
WAS
THE MOST CRITICAL WITNESS.
APPARENTLY SHE CERTAINLY GOT
AN
INDICTMENT WITH KATHY
STEVENS.
SHE CAME FORWARD AFTER HE
WAS INDICTED
AND ARRESTED.
>> READING THE WHOLE TRIAL
TRANSCRIPT WHERE
SHE
TESTIFIED THE PRIOR INCIDENT
WHERE HE EXPOSES HIMSELF TO
BOTH OF
THEM AND SOME PRETTY
GRAPHIC TESTIMONY.
DO YOU RAISE HER AS BEING
THE
MOST CRITICAL WITNESS?
>> I THINK THE -- SHE WAS AN
IMPORTANT
WITNESS.
IN ADDITION TO THE CELLMATE
AND IN ADDITION TO ROBERT
DECARR'S
TESTIMONY.
YOU HAVE ADMISSION OF THE
DEFENDANT.
HE HASN'T RECANTED
HIS
TESTIMONY NOR HAS LISA OR
KATHY STEPHENS.
THERE IS NO CHANGE IN
WHAT
THEY'VE HAD TO SAY.
>> THERE'S NO RECAMP OF
ANYONE'S
TESTIMONY IN THIS
CASE.
ALL WE HAVE A JUNIOR DAVIS
SAYING I DIDN'T MEET
WITH
KATHY STEVENS AT THE STORE.
I DON'T KNOW ANYTHING MORE
ABOUT THE
CASE.
THAT'S BASICALLY IT.
AS WE PARTED OUT IN
THE -- AS WE POINTED OUT
IN
THE BRIEF THERE'S NO CLAIM
OF THERE CAN BE NO
LEGITIMATE CONTINGENT
OF A
BRADY VIOLATION -- WHATEVER
DAVIS TOLD DETECTIVE WAS
GIVEN TO THE
DEFENSE.
ONCE KATHY STEVENS COMES
FORWARD AND ARGUEABLY IF SHE
MAKES
STATEMENT WHICH ARE
INCONSISTENT WITH WHAT DAVIS
TOLD BURKE THEN THE
DEFENSE
HAD THAT OPPORTUNITY TO GO
AND INVESTIGATE THAT IF HE
WANTED
TO.
THERE'S NO VIOLATION.
NO ONE HAS GIVEN PURGING
TESTIMONY OR
FALSE
TESTIMONY.
HAD IT GONE UNCORRECTED AT
MOST YOU HAVE
HERE
ARGUELIABLY IS A CLAIM
POSSIBLY EVEN INEFFECTIVE
ASSISTANCE OF
COUNSEL
BECAUSE MR. McKELVIN THOUGHT
A DIFFERENT ATTORNEY WOULD
HAVE
DONE SOMETHING
DIFFERENT.
THIS COURT IN THE FEDERAL
COURTS DENIED
RELIEF ON
THAT.
WE SHOULD NOT BE HAVING
PIECEMEAL LITIGATION
OF
INEFFECTIVE COUNSEL CLAIMS.
THERE'S NO FURTHER QUESTIONS
I WOULD ASK
THE COURT TO
AFFIRM.
>> AM I IN REBUTTAL?
>> THE 1989
EVIDENTIARY
HEARING IT WASN'T PERMITTED
TO KAGT KATHY STEVENS.
THERE
WASN'T A HEARING ON
HER.
SHE WASN'T CALLED.
HER ACCOUNT IS A
VIVID
ACCOUNT.
AND --
>> WHY WERE YOU NOT
PERMITTED TO CALL
HER?
>> THE JUDGE -- THE
PROSECUTOR OBJECTED AND THE
JUDGE SAID,
NO, YOU CAN'T
CALL HER.
>> WHY?
WAS THERE AN ISSUE
RAISED?
>> IT WAS RAISED.
THE MEMORANDUM WERE UP
DEUCED.
I
CALLED THE PROSECUTOR.
HE SAID, YES HE WROTE THE
MEMORANDUMS BASE ODEN
WHAT
SHE SAID.
HE ARGUED SHE WOULD BE TOO
EMOTIONALLY UPSET AND
THE
JUDGE ABSTAINED THE
OBJECTION AND I COULDN'T
CALL HER.
BUT HER
IN -- ACCOUNT WAS
VERY VIVID.
>> AS WE PUT THIS TOGETHER
WE MUST
LOOK TO THE STANDARD
THAT WE'RE UPON BEFORE WE
CAN REALLY COME TO
A
CONCLUSION AS TO WHERE THIS
RECORD
EXCLUSIVELY
DEMONSTRATES.
>> OKAY.
>> AND YOU'RE TRYING TO
NOT
ONLY WHO DISCOVERED BUT
BRADY.
>> THAT'S CORRECT,
YOUR
HONOR.
>> AND CAPTURE FOR US 11:00
SINKLY AS POSSIBLE WHAT
THAT
BRADY VIOLATION IS.
I KNOW YOU TRY TO ARGUE AND
BRING BACK IN
THERE'S A
COUPLE OF FOLKS THAT TALKED
WITH THE INVESTIGATOR THAT
SAID
WHAT HAS REALLY PLACED
THIS TO UNDERMINE THE
CONFIDENCE IF YOU HAVE
AN
EVIDENTIARY HEARING THAT'S
NOT REVIEWED.
>> YOUR HONOR IN 2001
THE
POLICE REPORT THAT WAS FIRST
DISCLOSED INVOLVED THE
ENTERVIEW OF
MARINE SWEENEY
AND WILLIS THEY NOT ONLY
GAVE INFORMATION ABOUT
BARBARA
DECARR GIVING A
DIFFERENT VERSION OF THE
CRIME INDICATING LISA
WARREN
AWAY AFTER A FIGHT OVER
MR. TOMPKINS MOVING BACK IN
THE
HOUSE.
THEY ALSO SAID THEY SPOKE TO
JUNIOR DAVIS AND THE
INFORMATION
THAT HE GAVE IS
INCONSISTENT WITH WHAT WAS
REPRESENTED AT
TRIAL
REGARDING JUNIOR DAVIS.
THAT LEAVES TO HIS AFFIDAVIT
WHICH I
SUBMIT IF YOU
HAVE --
>> THE
SUBSTANTIATE -- SUBSTANCE
NOT THE
EVIDENCE.
WE'RE LOOKING AT WHAT THE
OTHER PEOPLE HAD TO SAY.
THAT'S
GOING TO BE THE BRADY
VIOLATION.
>> THE BRADY VIOLATION IS
THEY
HAVE INFORMATION THAT
SHOWED THAT JUNIOR DAVIS HAD
GIVEN HIM A
COUNT
INCONSISTENT WITH KATHY
STEVENS AND WOULD CAUSE AN
ATTORNEY TO
FIND HIM AND
ELLIS SEURT MORE INFORMATION
FROM HIM.
WE LOOK -- WE KNOW
WHAT'S IN
THE RECORD.
IS THERE NOT THE ADMISSION
OR STATEMENTS FROM
THE
DEFENDANT WITH REGARD TO THE
RUN AWAY DESCRIBING THE
CLOTHE!!ING
THIS CLOTHING THAT
SHE ALLEGEDLY DESCRIBES BY
THE DEFENDANT THIS
RUNNING
AWAY IN WAS FOUND VERY?
>> ONLY THE BERN.
THE CLOTHING
WAS FOUND WITH
A PINK BATHROBE.
IT WASN'T THE CLOTHING.
>> I KNOW
THE BATHROBE WAS
THERE.
>> NO.
THE MARINE TOP WAS NOT.
THERE'S
OTHER WITNESSES.
THERE WAS GLADDIEST DAILY
WHO SAID THEY SAW
MARINE
TOP.
THE RELATIONSHIP BETWEEN
JUNIOR DAVIS AS THIS
COURT
ACKNOWLEDGED, THERE'S
SOMETHING STRANGE ABOUT
HER
TESTIMONY.
YOU READ THE TESTIMONY AND
IT'S LIKE THIS IS A
BIZARRE
REACTION TO WHAT SHE HAS
JUST SEEN.
AND THE STATE'S
EXPLANATION
IS JUNIOR DAVIS THE
BOYFRIEND DIDN'T HAVE ANY
DIFFERENT
REACTION.
AND IT SORT OF MAKES IT SEEM
LIKE THIS REACTION IS
MORE
NORMAL THAN IT IS.
AND, IN FACT, HAD THE
DEFENSE KNOWN ABOUT
JUNIOR
DAVIS THE REASON TO CALL HIM
IS TO SHOW WHAT KIND OF
REACTION A
NORMAL PERSON
WOULD HAVE TO HEARING OR
SEEING WHAT KATHY STEVENS
SAID
SHE SAW.
AND SO IF IT'S MORE THAN
JUST IMPEACHING HER.
IT'S ALSO
IMPEACHING THE WAY
THE STATE USED HER.
AS IF THE SORT OF
NORMAL
REACTION.
PHAPBG THIS CASE WITHOUT HER
TESTIMONY.
-- IMAGINE
THIS CASE
WITHOUT HER TESTIMONY IT
CHANGES THE CASE.
>> THAT'S
ALL YOUR TILE.
THANK YOU BOTH FOR YOUR
EXCELLENT PRESENTATIONS.
THE
COURT WILL TAKE THE CASE
UNDER ADVISEMENT.
>>