The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. Eddie Wayne Davis v. State of Florida THE NEXT MATTER ON THE COURT'S DOCKET IS A CASE OF DAVIS VERSUS STATE. GOOD MORNING. GOOD MORNING YOUR HONOR. YOU MAY PROCEED. MAY IT PLEASE THE COURT. MY NAME IS JAMES VIGGIANO. I'M EMPLOYED BY CCRC MIDDLE AND I REPRESENT EDDIE DAVIS. KEEP YOUR VOICE UP SO WE CAN HEAR YOU. YES, YOUR HONOR. IS THERE IS A LITTLE BIT OF DISTRANSBETWEEN YOU AND THE MICROPHONE. I REALIZE THERE IS NOT MUCH YOU CAN DO ABOUT THAT. I WOULD LIKE TO ARGUE ISSUES ONE AND TWO OF MR. DAVIS'S BRIEF AND IF TIME PERMITS, ISSUE FOUR. REGARDING ISSUE ONE, THE TRIAL COURT ERRED IN DENYING MR. DAVIS'S CLAIM THAT THE TRIAL COUNSEL -- THAT TRIAL COUNSEL WAS INEFFECTIVE AND FAILING TO REQUEST OR ALLOW THE COURT TO INQUIRE OF HIS CLIENT, AS TO WHETHER OR NOT MR. DAVIS WISHED TO TESTIFY IN THE PENALTY PHASE OF HIS TRIAL. ISN'T THE CURRENT STATE OF THE LAW THAT THERE IS NO REQUIREMENT IN THE TRIAL COURT TO SECURE AN ON THE RECORD WAIVER OF THE DEFENDANT'S RIGHT TO TESTIFY? YOUR HONOR, IN THE STATE RELIES ON LAWRENCE V STATE, AND THIS COURT HAS SAID THAT THERE IS NO LEGAL REQUIREMENT THAT THERE BE ON THE RECORD WAIVER. HOWEVER, THAT CASE INVOLVED AN ACTUAL DISPUTE BETWEEN TRIAL COUNSEL AND THE CLIENT AS TO WHETHER OR NOT THE CLIENT WOULD TESTIFY. 3.850 HEARING. TRIAL COUNSEL TESTIFIED THAT HE HAD EXTENSIVE DISCUSSIONS WITH THE DEFENDANT REGARDING TESTIFYING AT THE GUILT AND PENALTY PHASE OF THE TRIAL. LET'S COME BACK THOUGH TO THE QUESTION EARLIER ASKED. THAT IS JUST, THE SORT OF FOUNDATIONAL QUESTION, THAT IS, I TAKE IT IN CANDOR THAT YOU'RE NOT AWARE OF ANY DECISION OF THIS COURT REQUIRING AN ON-RECORD WAIVER BY THE ACTUAL DEFENDANT? ISN'T THAT THE STATE OF THE LAW? WELL YOUR HONOR, THIS COURT IN FOOTNOTE TWO STRONGLY SUGGESTED TO THE CIRCUIT COURTS IN THIS STATE THAT A ON THE RECORD WAIVER BE OBTAINED. BUT YOU'RE AWARE OF COURSE THAT THIS COURT IN DEATH PENALTY PROCEEDINGS OF ALL KINDS, HAS TRIED TO ENCOURAGE LAWYERS, JUDGES AND EVERYONE INVOLVED IN THE PROCESS, IN THE MOST ABUNDANCE OF CAUTION, YOU KNOW, TO DO EVERYTHING POSSIBLE TO NOTE, CLEAR UP AND RESOLVE ISSUES. BUT NEVERTHELESS, WOULD YOU AGREE WE HAVE NOT MANDATED THAN AN ON RECORD WAIVER UP TO THIS POINT?
YES, YOUR HONOR, THAT'S CORRECT. IN THIS CASE, ACTUALLY THERE WAS AN ON THE RECORD WAIVER FOR DEFENDANT'S RIGHT TO TESTIFY IN THE GUILT PHASE, WAS THERE NOT? YES, THERE WAS YOUR HONOR. AND LET'S JUST ASSUME THAT YOU CAN GET BY THAT SOMEHOW THERE WAS INEFFECTIVE ON THE TRIAL COUNSEL, ALTHOUGH THERE IS TESTIMONY THAT HE ACTUALLY, THAT THE ONE OF THE TRIAL COUNSEL ACTUALLY TALKED TO DAVIS ABOUT TESTIFYING. YOU STILL WOULD HAVE TO MEET PREJUDICE. AND WHAT IS YOUR ALLEGATION AS -- DID MR. DAVIS TESTIFY IN THE EVIDENTIARY HEARING AS TO WHAT HE WOULD HAVE SAID IF HE WAS ALLOWED TO TESTIFY? DID HE TESTIFY THAT HE WANTED TO TESTIFY? WHAT IS THE STATE OF THE RECORD AND HOW REALLY CAN YOU DEMONSTRATE PREJUDICE AS TO ISSUE ONE? WELL WITH RESPECT TO PREJUDICE, I WOULD FIRST STATE THAT THE DENIAL OF MR. DAVIS'S RIGHT TO TESTIFY IS A FUNDAMENTAL RIGHT. MR. DAVIS DID NOT TESTIFY AT THE 3.850 HEARING. THERE IS NO, NOTHING ON THE RECORD TO INDICATE THAT HE WISHED TO TESTIFY, THAT HE DID NOT WISH TO TESTIFY. SO THE ANSWER IS, HOW DO -- YOU'RE SAYING -- YOU WOULD HAVE US ESTABLISH A RULE OF LAW IN A POST CONVICTION PROCEEDING THAT THE FAILURE TO HAVE A ON THE RECORD WAIVER WOULD BE PER SE REVERSIBLE AND REQUIRE A NEW PENALTY PHASE? NO, YOUR HONOR I AM NOT ASKING THIS COURT TO CREATE A NEW RULE OF LAW REGARDING THE WILLINGNESS OR DECISION OF A DEFENDANT TO TESTIFY IN HIS OWN BEHALF. DON'T YOU THINK YOU'D HAVE TO ESTABLISH THAT HE WANTED TO TESTIFY BEFORE THERE IS ANY PREJUDICE AT THE VERY LEAST IN THE CASE THAT WE'RE IN POST CONVICTION? WHETHER IT'S A GOOD IDEA TO HAVE AN ON THE RECORD WAIVER OR NOT? WELL YOUR HONOR BECAUSE OF THE FUNDAMENTAL RIGHT AND IT IS A FUNDAMENTAL RIGHT LIKE THE RIGHT TO COUNSEL, RIGHT TO ENTER A PLEA --. REALLY IN TERMS OF WHAT'S BEEN REQUIRED, WE WOULDN'T HAVE, IF A DEFENDANT APPEARED PRO SAI AND SAID HE DIDN'T WANT HIS LAWYER THERE, THERE IS CASES ABOUT THAT, BUT LET'S STICK TO THIS. YOU HAVE ALREADY ACKNOWLEDGED THERE IS NO LEGAL REQUIREMENT THAT THE TRIAL COURT HAD TO SECURE AN ON THE RECORD WAIVER. I TAKE IT FROM THE ABSENCE OF ANY EVIDENCE IN THIS RECORD THAT YOU WOULD AGREE THAT THERE IS NO EVIDENCE THAT HE WANTED TO TESTIFY AND THAT IF HE HAD TESTIFIED IT WOULD HAVE BEEN SOMETHING THAT WOULD HAVE CONTRIBUTED TO A DRAMATICALLY DIFFERENT PENALTY PHASE AND UNDERMINE OUR CONFIDENCE IN THE RESULT? THERE IS NOTHING AT ALL ABOUT THAT, IS THERE? NO, NOTHING ABOUT THAT YOUR HONOR. I'D LIKE TO POINT OUT THOUGH THAT IN THE EVENT THAT A DEFENDANT WAIVED THE FUNDAMENTAL RIGHT SUCH AS THE RIGHT TO COUNSEL, WHAT WE DO IS WE HAVE APRESENT HEARING, AND THE COURT INQUIRES OF THE DEFENDANT WHETHER THE WAIVER TO COUNSEL IS FREELY VOLUNTARY. BUT WE ALREADY WENT OVER THAT THE LAW DOESN'T SUPPORT YOU. SO WHAT YOU'RE NOW ARGUING IS THAT IN THIS POST CONVICTION CASE WE SHOULD CHANGE THE LAW AND THAT'S WAY ASKED YOU? COME UP WITH A RULE OF LAW IN A POST CONVICTION CASE THERE IS NOT ON THE RECORD WAIVER, THAT THERE WOULD BE A PER SE REVERSAL FOR A NEW PENALTY PHASE. ISN'T THAT EFFECTIVE WHAT YOU'RE NOW ARGUING?
I'M ASKING YOU TO LOOK AT MR. DAVIS'S CASE ON A CASE-BY-CASE BASIS. WHAT IS UNIQUE, WHAT IS THE EVIDENCE THAT WOULD SUGGEST TO US THAT JUSTICE CRIES OUT THAT IN THIS CASE THAT HE RECEIVE A NEW PENALTY PHASE SOLELY BECAUSE THERE WASN'T AN ON THE RECORD WAIVER? WELL WHAT MAKES THIS CASE UNIQUE IS THAT THERE IS NO RECORD EVIDENCE WHATSOEVER THAT COUNSEL DISCUSSED WITH MR. DAVIS HIS FUNDAMENTAL RIGHT TO TESTIMONY. WITH YOU THAT'S DIRECTLY CONTRARY TO THE TESTIMONY OF THE ATTORNEY AND TRIAL COURT'S FINDING IN FACT WASN'T DISCUSSED WITH MR. NORGUARD HE DIDN'T REMEMBER BUT CO-COUNSEL SAID HE DID IN FACT DISCUSS IT. WELL MR. NORGUARD DID HAVE THE BENCH CONFERENCE AND CIRCUIT COURT DID ASK FROM NORGUARD IF THERE WAS, IF MR. DAVIS WISHED TO TESTIFY AND HE SAID NO, SIR. OUT OF THE HEARING OF MR. DAVIS. THERE WAS NO CONSULTATION WHATSOEVER. I THOUGHT -- I'M NOT TALKING ABOUT WHAT HAPPENED IN COURT. I AM TALKING ABOUT TESTIFIED TO THE ATTORNEY AS BETWEEN ATTORNEY AND CLIENT OUTSIDE OF COURT, THAT THEY DISCUSSED IT AND DECIDED IT WAS NOT A GOOD IDEA. WELL MR. NORGUARD TESTIFIED AT THE EVIDENTIARY HEARING THAT HE DID NOT DISCUSS WITH MR. DAVIS OR DID NOT RECALL DISCUSSING WITH MR. DAVIS WHETHER OR NOT HE COULD TESTIFY. MR. MISS LAN I CAN WHO HANDLED THE GUILT PHASE TESTIFIED AT THE EVIDENTIARY HEARING HE HAD DISCUSSIONS WITH MR. DAVIS ABOUT PENALTY PHASE, ABOUT TESTIFYING IN PENALTY PHASE. HOWEVER, HE DIDN'T HAVE ANY NOTES OR DIDN'T RECALL WHAT THE SUBSTANCE OF THE DISCUSSION WAS OR THE DECISION BY MR. DAVIS AS TO WHETHER OR NOT HE WANTED TO TESTIFY. YOU STILL HAVEN'T -- I'M HAVING DIFFICULTY UNDERSTANDING YOUR POSITION. IN ANSWER TO THE JUSTICE'S QUESTION. YOU SAID YOU'RE NOT ARGUING FOR A PER SE RULE, THAT THERE MUST BE A RECORD WAIVER. THAT IT BE DECIDED ON A CASE-BY-CASE BASIS. AND YET, YOU HAVE MADE NO CLAIM HERE OR ARGUMENT ABOUT PREJUDICE. WHEN WE SAY PREJUDICE, ORDINARILY WHAT WE ARE TALKING ABOUT IS THAT IN THE POST CONVICTION, FOR INSTANCE, THE DEFENDANT MIGHT TESTIFY AND THE LAWYER MIGHT ARGUE THAT THERE WAS THIS UNIQUE CIRCUMSTANCE IN THE CASE. THAT WAS GOING TO PROBABLY BE CRITICAL TO A JURY DETERMINATION OF RECOMMENDING LIFE OR DEATH. OR PERHAPS A JUDGE'S. AND THE DEFENDANT COULD HAVE CLEARED THAT UP BY TESTIFYING AND EXPLAINING. HE IS THE ONLY ONE THAT KNEW AND HE COULD TESTIFY AND EXPLAIN THAT TO THE JURY OR THE JUDGE. AND THEREFORE IT WAS VERY CRITICAL AND HE WANTED TO TESTIFY AND EXPLAIN THAT SO THAT THE JURY AND THE JUDGE WOULD UNDERSTAND THAT UNIQUE CIRCUMSTANCE. OBVIOUSLY THAT'S A HYPOTHETICAL. BUT NOTHING LIKE THAT WAS DONE IN THIS CASE, WAS IT? THAT IS, THE DEFENDANT FIRST OF ALL DID NOT GET ON THE STAND AND OFFER HIS VIEW OF WHETHER IT WAS DISCUSSED WITH HIM OR NOT? WELL HE DEFINITELY DIDN'T HAVE THE OPPORTUNITY TO DO THAT. NO, I'M TALKING ABOUT AT THE POST CONVICTION PROCEEDING. HE HAD THE FULL OPPORTUNITY AT THE POST CONVICTION PROCEEDING TO TESTIFY, DID HE NOT? HE DID, YOUR HONOR, HOWEVER, I'D LIKE TO POINT OUT THAT MR. DAVIS COULD HAVE TESTIFIED AT THE TRIAL REGARDING HIS BACKGROUND, THE HORRIBLE BACKGROUND THAT HE SUFFERED. HE COULD HAVE TESTIFIED ABOUT THE ABUSE THAT HE SUFFERED AT THE HANDS --. BUT YOU'RE BACK AT THE PENALTY PHASE WHERE YOU HAVE AGREED HE WAIVED THAT. THERE
IS AN ON THE RECORD WAIVER IN THAT PENALTY PROCEEDING, CORRECT? YOUR HONOR, THERE IS NO WAIVER AT ALL AT THE PENALTY PHASE. HE DIDN'T KNOW ABOUT IT. IT JUST HAPPENED. THERE WAS A WAIVER AT THE GUILT PHASE. AND NO ON THE RECORD WAIVER AT THE PENALTY PHASE. THAT IS CORRECT. THERE WAS A WAIVER AT THE GUILT PHASE. BUT THERE WAS TWO SEPARATE PROCEEDINGS THERE. HOW ABOUT ARTICULATING FOR US AGAIN WHAT RULE IT IS THAT YOU ARE ADVOCATING THAT WE ADOPT ON THIS ISSUE. WHAT WOULD WE SAY THE LAW WOULD BE AFTER DECIDING THIS CASE? WELL, YOUR HONOR, I'D ASK THE COURT TO APPROACH IT ON A CASE-BY-CASE BASIS AND DETERMINE WHETHER OR NOT MR. DAVIS'S FUNDAMENTAL RIGHT TO TESTIFY WAS VIOLATED WHEN HIS RIGHT WAS WAIVED BY HIS TRIAL COUNSEL WITHOUT CONSULTATION WITH HIM, WITHOUT HIM KNOWING OF IT. WITHOUT HIM MAKING AN INTELLIGENT VOLUNTARY WAIVER. BUT WHAT ON THE RECORD SUPPORTS THAT TEST? ONLY EVIDENCE WE HAVE IS THE LAWYER TESTIFYING THAT THE DEFENDANT WAS IN FACT INFORMED OF THE RIGHT AND CHOSE AND AGREED WITH COUNSEL NOT TO TESTIFY. AND THERE IS NO EVIDENCE THAT THE EVIDENTIARY HEARING TO THE CONTRARY, THAT I KNOW OF. YOUR HONOR, THERE IS NO EVIDENCE WHATSOEVER THAT HE KNEW THAT HE WAS WAIVING HIS RIGHT TO TESTIFY IN THE PENALTY PHASE. THERE IS NO EVIDENCE FROM HIS COUNSEL AT THE EVIDENTIARY HEARING? COUNSEL YOU KNOW LATERALLY WAIVED THAT RIGHT AT THE BENCH CONFERENCE WHILE MR. DAVIS WAS FAR AWAY. BUT DIDN'T THE LAWYER TESTIFY AT THE EVIDENTIARY HEARING MR. DAVIS WAS INFORMED OF HITS RIGHT -- HIS RIGHT TO TESTIFY? NO, YOUR HONOR. THE ATTORNEY TESTIFIED AT THE EVIDENTIARY HEARING THAT HE HAD NOT DISCUSSED WITH MR. DAVIS THE, HIS RIGHT TO TESTIFY AT THE EVIDENTIARY HEARING. HE DID NOT DISCUSS THAT WITH HIM AT ALL. ASSUMING THAT'S TRUE, IS THERE ANY EVIDENCE FROM THE EVIDENTIARY HEARING FROM MR. DAVIS OR OTHERWISE THAT HE WISHED TO TESTIFY? YOUR HONOR, AGAIN, I THINK THAT WHAT'S HAPPENING IS THAT THERE IS AN ADDITIONAL BURDEN BEING PLACED ON MR. DAVIS WITH RESPECT TO WHAT HE MIGHT HAVE SAID. THAT'S BECAUSE THIS IS A POST CONVICTION PROCEEDING. AND YOU -- MR. IT IS NOT MR. DAVE I WAS'S BURDEN. AS HIS COUNSEL, YOU HAVE GOT TO BEAR THE BURDEN OF SHOWING PREJUDICE. NOT PREJUDICE THAT HE, THERE WAS SOME INCOEIGHT RIGHT BUT HOW IT WOULD HAVE AFFECTED THE PROCEEDINGS. MAYBE, WHAT WE OUGHT TO DO, BECAUSE FEELS LIKE WE ARE GOING AROUND IN A CIRCLE HERE, YOU SAID YOU HAVE TWO OTHER ISSUES YOU'RE GOING TO ARGUE. AND I GUESS ONE HAS TO DO WITH THE SEXUAL ABUSE ISSUE. AND YOU WANT TO GO ON? YES, YOUR HONOR. ARE TOPT -- WITH RESPECT TO ISSUE TWO, THE TRIAL COURT ERRED IN DENYING MR. DAVIS'S CLAIM THAT TRIAL COUNSEL WAS INFECTIVE FOR FAIL TO PRESENT A
QUALIFIED EXPERT TESTIFYING REGARDING POST TRAUMATIC STRESS. WE HAD TWO EXPERTS IN THIS CASE. YES, YOUR HONOR. BOTH TESTIFIED ABOUT POST TRAUMATIC STRESS DISORDER? THEY TESTIFIED IN A VERY BLAND FASHION. THEY TESTIFIED IN A CONCLUSORY FASHION, TESTIFYING BASICALLY THAT MR. DAVIS SUFFERED A POST TRAUMATIC STRESS DISORDER AND SEXUAL ABEAUTIFUL -- ABUSE. THEY JUST SAID THAT AND THAT WAS IT. TO BE VERY BLAND, THE TRIAL COURT ACTUALLY FOUND THE STATUTORY MITIGATOR OF EXTREME EMOTIONAL DISTRESS AND GAVE IT GREAT WEIGHT. HOW DID THAT HAPPEN? WELL, THE COURT GAVE IT GREAT WEIGHT. HOWEVER, THE JURY NEVER HAD THE OPPORTUNITY TO HEAR THE UNDERLYING BASIS FOR THE POST TRAUMATIC STRESS DISORDER. NEVER HAD THE OPPORTUNITY TO HEAR THE HORRIBLE DETAILS OF THE SEXUAL ABUSE THAT MR. DAVIS SUFFERED AT THE HANDS OF HIS STEPFATHER. HE HAD BEEN RAPED BY HIS STEPFATHER NUMEROUS TIMES AS A CHILD. HE HAD BEEN RAPED IN THE PRISON SYSTEM AND THE JURY DIDN'T GET AN OPPORTUNITY TO HEAR THAT. WHEN WAS THE FIRST TIME, IN THE EVIDENCE OF THAT SEXUAL ABUSE WAS MADE AWARE TO ANYBODY? WAS IT PRE-TRIAL OR POST? THE EXPERTS LEARNED OF THE SEXUAL ABUSE SHORTLY BEFORE THE TRIAL. THEY TESTIFIED ABOUT JUST A GENERAL MATTER WITH RESPECT TO THE SEXUAL ABUSE. HOWEVER, THEY DID NOT HAVE THE THOROUGH DETAILS IN THE RECORD THAT THE DETAILS IN THE RECORDS WERE OBTAINED BY CCRC THROUGH DOCTOR CARTER. SHE OBTAINED PRISON RECORDS OUTLINING HOW MR. DAVIS HAD BEEN PLACED IN PROTECTIVE CUSTODY TO PREVENT FROM BEING RIPED -- RAPED. HE WAS RAPED IN PRISON. ALL OF THIS DID NOT COME OUT AT ALL DURING THE TRIAL. NOW EVEN THOUGH THE COURT COULD GIVE IT GREAT WEIGHT THAT HE SUFFERED THIS MITIGATOR, THE JURY DID NOT HAVE THE BENEFIT OF HEARING ALL OF THIS. AND HAD THE JURY HEARD AN EXPLANATION AS TO HOW AND WHY A PETTY CRIMINAL WITH NO VIOLENT HISTORY, WITH NO HISTORY OF SEXUAL ABUSE COULD SPLON IN THE -- EXPLODE IN THE RAGE THAT CAUSED THIS HORRIBLE, HORRIBLE INCIDENT. THE MARSHAL HAS REMINDED YOU THAT YOU'RE IN YOUR REBUTTAL TIME AND ALTHOUGH, WE WENT OVER A LITTLE BIT THERE, I NEED TO REMIND YOU AGAIN SO YOU DO SAVE SOME TIME. THANK YOU VERY MUCH YOUR HONOR. THANK YOU. STATE? MAY IT PLEASE THE COURT I'M CAN DANCE SABELLA, REPRESENTING THE STATE OF FLORIDA. WITH REGARD TO THE RIGHT TO TESTIFY AS THIS COURT HAS ALREADY RECOGNIZED, THERE HAS BEEN NO ASSERTION BY MR. DAVIS THAT HE EVEN WANTED TO TESTIFY. THERE WAS AN ON THE RECORD COLLOQUY DURING THE GUILT PHASE. THE LEAD COUNSEL MS. LANTK TESTIFIED HIS NOTES WENT OVER DAVIS WHAT HE WOULD BE ABLE TO TESTIFY TO DURING THE PENALTY PHASE AND WHAT WOULD BE MITIGATING AND THEY HAD DISCUSSED THAT. WOULD THAT INCLUDED THE INFORMATION THAT COUNSEL NOW TALKS ABOUT, ABOUT THE SEXUAL ABUSE,? YOUR HONOR, DON'T RECALL HIM TESTIFYING ABOUT THE SEXUAL ABUSE. BUT WITH REGARD TO
SEXUAL ABUSE, BASICALLY MISREPRESENTING THE RECORD. BECAUSE WE HAVE THREE EXPERTS THAT WERE PRESENTED DURING THE PENALTY PHASE BY THE DEFENSE, TOTAL OF 15 WITNESSES WERE PRESENTED. ONE OF THESE EXPERTS, DOCTOR MC LANE HAD EXAMINED THE DEFENDANT AND HAD OBTAINED THE INFORMATION ABOUT THE SEXUAL ABUSE AT THE HANDS OF HIS FATHER AND OTHER PRISONERS. AND HE TESTIFIED TO THAT IN THE PENALTY PHASE. THEIR ONLY CLAIM IS THAT DOCTOR CARTER'S EXPERTISE WOULD BE ABLE TO COMBINE THE POST TRAUMATIC STRESS SYNDROME WITH THE SEXUAL ABUSE AND BE ABLE TO EXPLAIN IT BETTER TO THE JURY. THIS COURT HAS HELD A NUMBER OF CASES, GASKIN, GA DEAN NAS, THIS IS MERELY A CASE OF SECOND GUESSING, FINDING ANOTHER EXPERT TO PRESENT IT BETTER. SO THIS EXPERT TESTIFIED EXTENSIVELY? YES HE DID YOUR HONOR. THE CONSEQUENCES OF THAT. YES, HE DID YOUR HONOR. AND THAT WAS FOUND BY THE TRIAL COURT IN FINDING THE EXTREME MENTAL EMOTIONAL MITIGATOR. CIRCLE BACK A LITTLE BIT BECAUSE WE HAVE QUICKLY COVERED BOTH THOSE ISSUES WITHOUT - - WAS IT. AUSTIN MASSLANTIC. TELL US WHAT HIS TESTIMONY WAS ABOUT DISCUSSING WITH THE DEFENDANT, HIS RIGHT TO TESTIMONY DURING THE COURSE OF THE PENALTY PHASE AND THEN WHETHER OR NOT HE ADVISED THE DEFENDANT NOT TO TESTIFY OR WHAT. AND THEN WHAT THE DECISION WAS OR TELL US WHAT HIS --. ABSOLUTELY. MISS LANTIC TESTIFIED FIRST OF ALL HE HAD REVIEWED THE FILE AND THERE WAS ON THE REPORT FOR THE GUILT PHASE. HIS NOTES REFLECT THE ITEMS HE WENT OVER TO DAVIS. HE DID NOT EXPLAIN WHAT THOSE WERE DURING THE EVIDENTIARY HERRING. HE SAID THAT HE WOULD HAVE MADE HIS RECOMMENDATION TO THE CLIENT AS TO WHETHER TO TESTIFY BUT THAT THE ULTIMATE DECISION WAS UP TO THE DEFENDANT. AND THAT'S ALL HE TESTIFIED TO. NOW, WAS, DID HE EITHER EXPLICITLY OR ARE YOU SAYING BY INFERENCE TESTIFY THAT HAVING EXPLAINED WHAT HE POTENTIALLY COULD TESTIFY TO, THAT IS, THE DEFENDANT, THAT THE DEFENDANT MADE THE DECISION THEN NOT TO TESTIFY? NO. HE DID NOT SAY THAT. HE SAID HIS NOTES REFLECTED THAT THEY HAD GONE OVER IT AND THAT IT WOULD HAVE BEEN HIS RECOMMENDATION TO THE CLIENT BUT IT WAS THE CLIENT'S DECISION. HE DID NOT SAY WHAT THAT DECISION WAS. DID HE SAY WHAT HIS RECOMMENDATION WAS? HE DID NOT SAY WHAT HIS RECOMMENDATION WAS, NO. SO WE REALLY HAVE NOTHING IN THIS RECORD AS TO WHETHER OR NOT THE DEFENDANT WANTED TO TESTIFY OR DIDN'T WANT TO? WE DO KNOW THE DEFENDANT WAS TOLD HE HAD A RIGHT TO TESTIFY. AND WE DO KNOW THAT THE DEFENDANT DID NOT TESTIFY. AND WE DO KNOW THAT THE DEFENDANT HAS YET TO SAY HE WANTED TO TESTIFY. SO THERE IS ABSOLUTELY NOTHING ON THIS RECORD THAT WOULD SUPPORT A CONTENTION THAT HE DID.
HOW WAS THIS CLAIM ALLEGED? THE -- IN THE PETITION FOR POST CONVICTION RELIEF? I BELIEVE IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. WAS INEFFECTIVE ASSISTANCE OF COUNSEL NOT TO INFORM HIM OF HIS RIGHT TO TESTIFY? NO, IT WAS INEFFECTIVE ASSISTANCE FOR COUNSEL FOR BOB NORGUARD TO NOT REQUIRE AN ON THE RECORD WAIVER. THAT'S THE WAY IT WAS ALLEGED? THAT'S THE WAY IT WAS ALLEGED, EXACTLY YOUR HONOR. I ALSO WANT TO POINT OUT THAT AUSTIN MISSLAN TICK AND NORGUARD ARE TWO OF THE MOST EXPERIENCED AND WELL RESPECTED DEFENSE LAWYERS IN THE STATE. MISSLANNICK HAS DONE OVER 50 FIRST DEGREE MURDER TRIALS, DEATH PENALTY CASE OWES, NORGUARD DID 20 DEATH PENALTIES. BOTH TOOECH AT THE DEFENSE COLLEGE AND BOTH HAD STRATEGY WITH REGARD TO THIS CASE. THEY ALSO HAD A FORENSIC MITIGATION SPECIALIST WHO WORKED FOR THEM. THEY HAD THREE EXPERTS AND THEY DID A THOROUGH INVESTIGATION, THOROUGH PRESENTATION, A WELL THOUGHT-OUT PRESENTATION DEFENSE. REVIEW FOR US AGAIN WHAT CASE WAS PRESENTED IN MITIGATION. IF I UNDERSTAND IT CORRECTLY, WAS IT SOMETHING LIKE FOUR DAYS OF EVIDENCE, TESTIMONY? THERE WERE 15 WITNESSES WHO WERE PRESENTED. WHO WERE THOSE WITNESSES? ACTUALLY, I HAVE A LIST, YOUR HONOR. THERE WERE FAMILY MEMBERS THAT WERE PRESENTED. THEY PRESENTED CRAIG SMITH, DOCTOR CROC, TED YESHAN. HE WAS AN EXPERT WHO HAD FOUND NO SEAMAN AT THE SCENE AND HE TESTIFIED TO THAT. DID THE FAMILY MEMBERS DISCUSS -- WERE THEY QUESTIONED AT ALL ABOUT THE SEXUAL ABUSE THAT HE NOW CLAIMS WOULD HAVE BEEN IMPORTANT FOR HIS POST TRAUMATIC STRESS? THEY TESTIFIED AS TO PHYSICAL ABUSE AND THEY TESTIFIED AS TO THE DYSFUNCTION OF THE FAMILY. HIS MOTHER TESTIFIED THAT SHE HAD NO KNOWLEDGE OF THIS SEXUAL ABUSE. AND IN RETROSPECT SHE SHOULD HAVE SEEN THE FLAGS BUT DIDN'T. BASICALLY THERE WAS AN HRS REPORT SOMETIME PRIOR OF ALLEGATIONS OF ABUSE THAT HAD BEEN INVESTIGATED AND FOUND TO BE NON-FOUNDED. BUT BEYOND THAT THE FIRST TIME THAT THIS RECORD REFLECTS HE HE ASSERTED ANY KIND OF SEXUAL ABUSE WAS IN APRIL OR MAY RIGHT BEFORE THE TRIAL. AND AT THAT TIME, DOCTOR MCCLAIN WAS ABLE TO GET THAT INFORMATION OUT OF HIM. HE HAD NOT GIVEN IT TO DOCTOR CROC. AND HE WAS ABLE TO TESTIFY TO THAT. IT WAS FOUND BY THE TRIAL COURT. THERE IS SIMPLY NOTHING THAT THEY HAVE PRESENTED THAT WASN'T BEFORE THAT JURY IN SOME CONTEXT. IT MAY NOT HAVE BEEN IN THE WAY THAT THEY WOULD NOW PRESENT IT. BUT THESE ATTORNEYS DID A WONDERFUL JOB. A THOROUGH JOB. AND THEY PRESENTED EXTENSIVE CASE TO THE JURY. NEVERTHELESS, THIS IS A INCREDIBLY HEINOUS CASE. RAPE KILLING OF A LITTLE GIRL. AND THE JURY RECOMMENDED 12 VOTE. HOW WERE THESE TWO ISSUES ARGUED TO THE TRIAL COURT AT THE END OF THE POST CONVICTION HEARING? THESE TWO ISSUES ABOUT JURY, OR ABOUT HIS WAIVER OF HIS RIGHT TO TESTIFY AT THE PENALTY PHASE? AND THE LACK OF SUFFICIENT EVIDENCE? BOTH OF THEM WERE ARGUED AS INEFFECTIVE, THE ONE FOR FAILING ON RECORD WAIVER AND THE OTHER WAS FOR HIRING ANOTHER EXPERT. AN EXPERT WHO SPECIALIZED IN THIS PARTICULAR FIELD.
THE MENTAL HEALTH EXPERTS, MY UNDERSTANDING IS THAT THEY ACTUALLY WERE PROVIDED WITH JUVENILE RECORDS, HRS RECORDS, PSYCHOLOGICAL EVALUATION, HIGH SCHOOL RECORDS, EVALUATIONS DONE BY VARIOUS SCHOOL BOARD, DOC RECORDS, IS THAT CORRECT? IT IS CORRECT THAT DOCTOR MCCLAIN HAD THOSE RECORDS. I'M NOT CONFIDENCE -- CONFIDENT THAT DOCTOR CROC HAD ALL OF THOSE RECORDS BECAUSE THERE IS SOME ASSERTION ON THE RECORD THAT HE HAD NOT HAD ALL OF THOSE RECORDS. WHEN HE EXAMINED THE DEFENDANT. BUT THOSE RECORDS, WE HAVE SEEN MANY CASES UNFORTUNATELY, WHERE THOSE KIND OF RECORDS ARE ACTUALLY ONLY OBTAINED POST CONVICTION. WHAT IS THE STATUS? I THOUGHT COUNSEL SAID THAT IT IS REALLY THEY'RE THE ONES THAT OBTAINED ALL THOSE RECORDS. THAT'S NOT CORRECT. DOCTOR MCCLAIN HAD THAT INFORMATION. AND DOCTOR MCCLAIN WAS ABLE TO TESTIFY TO IT AT THE HEARING. ARE THERE NEW RECORDS THAT ARE NOW INTRODUCED INTO THE POST CONVICTION RECORD? I DO NOT BELIEVE SO YOUR HONOR. SO IN THIS, AS FAR AS, I THINK IT WAS DOCUMENTEDDED THAT HE ACTUALLY HAD BEEN RAPED WHILE HE HAD BEEN IN PRISON, FOR ANOTHER OFFENSE? CORRECT. HE WAS ON CONTROLLED RELEASE AT THE TIME OF THIS OFFENSE. WHAT IS THE STATUS OF THE DOCUMENTATION THAT HE HAD THEN RAPE -- BEEN RAPED BY HIS STEPFATHER? I DON'T BELIEVE THERE IS ANY DOCUMENTATION OTHER THAN AN ASSERTION BY HIM ON THE JAIL RECORDS WHEN HE WAS ADMITTED FOR THIS OFFENSE. THERE WAS SOME, A STATEMENT BY HIM IN THOSE RECORDS. AND THAT'S MY UNDERSTANDING, YOUR HONOR. WELL YOU SAID THERE WAS AN HRS REPORT. WHAT WAS THE REPORT OF? I BELIEVE THE REPORT REALLY WENT TO MORE TO PHYSICAL ABUSE. AND THE STATE WAS ABLE TO BRING OUT THE EVIDENTIARY HEARING THAT THERE HAD BEEN INVESTIGATED AND THAT IT WAS FOUND TO BE NOT SUPPORTED BY THE EVIDENCE. THAT THEY HAD TAKEN IT BACK, NEIGHBOR APPARENTLY HAD CALLED OR SOMETHING OF THAT NATURE. SO HE WAS NEVER REMOVED FROM THE HOUSE OF SOMETHING THAT THE STEPFATHER? HE WAS NOT REMOVED FROM THE HOUSE FOR ABUSE. HE HOWEVER DID GO INTO JUVENILE HOMES AND HE WAS INCARS EARTHED. AND THAT WAS BECAUSE OF HIS BEHAVIOR THOSE WERE ALL MINOR CRIMES? THIS WAS JUST A PETTY THEFT? WELL THE RECORD I SAW THAT HE HAD YOUR HONOR AS AN ADULT, THERE WAS BURGLARIES, SOME PETTY THEFT, THAT TYPE OF THING, YEAH. DID THE DEFENSE PRESENTED AT THE POST CONVICTION HEARING, A DIFFERENT EXPERT. IS THAT CORRECT? CORRECT.
DID THAT EXPERT TESTIFY TO ANYTHING NEW IN TERMS OF THE EVALUATIONS OR TESTIMONY OF THE THREE EXPERTS THAT WERE PRESENTED BY THE DEFENSE ORIGINALLY? YOUR HONOR, I OUTLINED IN MY BRIEF AND THE TRIAL COURT FOUND EXTENSIVELY QUOTED FROM HER, IN HIS ORDER DENYING RELIEF. BASICALLY SHE WAS -- SHE JUST COMBINED THE POST TRAUMATIC STRESS SYNDROME WITH THE SEXUAL ABUSE AND HER ASSERTION WAS THAT DOCTOR MCCLAIN WAS NOT A SUFFICIENT EXPERT TO BE ABLE TO DO THIS, TO BE ABLE -- HE DOESN'T HAVE THE BACKGROUND IN THE CHILD SEXUAL ABUSE. AND IF SHE WOULD HAVE BEEN ABLE TO TESTIFY, SHE WOULD HAVE BEEN ABLE TO COMBINE THE TWO THAT WOULD EXPLAIN THAT THE DEFENDANT POSSIBLY WAS HAVING A FLASH BACK WHEN THIS CRIME OCCURRED. HOWEVER, WHEN SHE WAS ASKED WAS THE DEFENDANT HAVING A FLASH BACK? SHE SAYS WELL I WASN'T ASKED TO FIND THAT OUT SO I DIDN'T ASK. AND THEY ALSO PRESENTED DOCTOR MIR, WHO TALK ABOUT THE VOLUME TARN TOX INDICATION. HE CAME UP WITH TWO POSSIBLE DISEASES THE DEFENDANT MIGHT HAVE, WHICH COMBINED WHEN THE ALCOHOL WOULD EXPLAIN HIS BEHAVIOR. BUT WHEN ASKED DOES THE DEFENDANT HAVE THESE DISEASES, SAYS WELL I WASN'T ASKED TO FIND OUT. THERE WAS A WHOLE LOT OF OF SPECULATION PRESENTED BUT THERE WAS NO REAL EVIDENCE THAT WAS ANY DIFFERENT FROM THE EVIDENCE THAT WAS PRESENTED AT THE PENALTY PHASE. THANK YOU. THANK YOU. MR. MARSHAL, HOW MUCH -- WELL THE MARSHAL IS NOT THERE. I THINK YOU HAVE GOT ABOUT THREE MINUTES.. JUST LIKE TO GO BACK TO THE ISSUE ONE REGARDING THE TESTIMONY. THE UNITED STATES SUPREME COURT STATED ROCK V ARKANSAS THAT THE RIGHT TO TESTIFY IS A FUNDAMENTAL RIGHT. THE COURT ALSO STATED USV SCOTT THAT FUNDAMENTAL RIGHT --. WE ARE TALKING ABOUT THE CONTEXT, ARE WE NOT, OF GUILT PART OF A TRIAL? THOSE CASES ARE AT THE GUILT PART OF THE TRIAL, YEAH. WE ARE TALKING ABOUT QUOTE LANGUAGE LIKE THAT. HERE THERE ISN'T ANY -- THERE IS NO QUESTION ABOUT THAT THE DEFENDANT HAD THIS ON THE RECORD COLLOQUY, DURING THE GUILT PHASE AT THE TRIAL. SO, THE ISSUE IS WHETHER OR NOT THERE IS ANY LAW OUT THERE THAT SAYS THIS IS REQUIRED AT, ONE'S GUILT HAS BEEN DETERMINED, THAT THERE ALSO IS A REQUIREMENT OF THIS BEING ON THE RECORD WAIVER. AS I UNDERSTAND IT, YOU'RE NOT EVEN ARGUING THAT THERE HAS TO BE AN ON THE RECORD WAIVER NOW. YOU'RE TALKING ABOUT THIS CASE-BY-CASE EXAMINATION OF HOW THE DEFENDANT'S BEEN AFFECTED. YES, YOUR HONOR. WELL WITH RESPECT TO THE OVERALL TRIAL, THE TRIAL IS OF COURSE BIFURCATED IN THE SENSE THERE IS A GUILT AND PENALTY PHASE. AND THE JURY'S INSTRUCTED ABOUT THIS KIND OF ALMOST SEPARATE, TWO SEPARATE TRIALS. SO THAT THERE HAS TO BE SOME KIND OF A KNOWLEDGE AND UNDERSTANDING ON BEHALF OF THE DEFENDANT --. BUT WHAT WOULD THE RULE BE THAT YOU WOULD ARGUE COMING OUT OF THIS? WHAT WOULD WE HOLD OUT OF THIS CASE? THAT WHAT? I'M NOT ASKING THE COURT TO CREATE A RULE THAT THERE MUST BE AN ON THE RECORD WAIVER AND PENALTY PHASE. HOWEVER, I'M ASKING THE COURT TO ACKNOWLEDGE THAT THERE HAS NOT BEEN -- THERE HAS BEEN A WAIVER BY COUNSEL OF MR. DAVIS'S FUNDAMENTAL RIGHT
TO TESTIFY IN HIS OWN BEHALF. I'M ASKING THE COURT TO TREAT IT ON A CASE-BY-CASE BASIS. THESE OTHER CASES INVOLVE, THEY'RE CITING THE BRIEF, INVOLVE DISPUTES BETWEEN THE ATTORNEY AND THE CLIENT AS TO WHETHER OR NOT THEY WANTED TO TESTIFY. THERE IS INFORMATION IN THE RECORD WHICH SUBSTANTIATES THAT THERE WAS DISCUSSION. HOWEVER, IN MR. DAVIS'S CASE, THERE WAS NO DISCUSSION BETWEEN MR. NORGUARD REGARDING HIS RIGHT TO TESTIFY. WHAT ABOUT THE OTHER LAWYER THOUGH? THE OTHER LAWYER'S DISCUSSION WAS VERY BRIEF. HE TESTIFIED SO IN THE EVIDENTIARY HEARING. HE SAID THERE WAS SOME DISCUSSIONS ABOUT TESTIFYING IN THE EVIDENTIARY HEARING BUT HE DIDN'T HAVE NOTES TO WHAT THE DISCUSSIONS ENTAILED. AND THERE WAS NO RESPONSE AS TO WHETHER OR NOT MR. DAVIS WISHED TO TESTIFY. AND WITH RESPECT TO DOCTOR BORE CARTER, JUST LIKE TO MENTION THAT SHE DID ELICIT SUBSTANTIAL EVIDENCE OF PAST SEXUAL ABUSE COMMITTED ON MR. DAVIS IN HER EVALUATION. SHE NOTED THAT EVEN EXPERTS IN THE FIELD WHO DO THIS KIND OF WORK ARE UNCOMFORTABLE IN INQUIRING OF CLIENTS AND PATIENTS ABOUT THIS. SO YOU'RE TAKING BASICALLY TWO EXPERTS WHO ARE NOT QUALIFIED TO DO THIS KIND OF WORK AND THEY DID IT IN SUCH A CURSORY FASHION. IT'S YOUR POSITION THAT DR. CROFT WITH HIS EXPERIENCE AND BACKGROUND REPRESENTING MANY OF THE CLIENTS THAT YOUR OFFICE REPRESENTS, IS NOT QUALIFIED TO DO AN ADEQUATE PSYCHOSOCIAL SEXUAL EVALUATION? YOUR HONOR, DR. CROFT IS QUALIFIED AS A FORENSIC PSYCHOLOGIST. AND IN SEXUAL ABUSE. HOWEVER, HIS TESTIMONY IN THIS TRIAL WAS VERY CONCLUSORY IN NATURE. I THOUGHT YOUR ARGUMENT WAS HE WAS NOT QUALIFIED. HE DOES MOST OF HIS WORK, HE DOES EVALUATIONS OF DEFENDANTS CHARGED WITH SEXUAL ABUSE. HOWEVER,. AND THAT HAVE BEEN SEXUALLY ABUSED THEMENTSS. I HAVE HAD HIM TESTIFY FOR ME SEVERAL TIMES ON THE TRIAL BENCH. SO I HAVE HEARD HIS TESTIMONY. WELL HE DID NOT, HE DID NOT DO THE THOROUGH EVALUATION OF HAD MR. DAVIS IN THIS CASE AND DIDN'T TESTIFY TO THAT EFFECT IN THIS CASE. DOCTOR BORE CARTER CAME OUT WITH A WEALTH OF INFORMATION THAT WOULD NOT PROVIDE EARLY ON AND WAS NOT PRESENTED TO THE JURY EARLY ON. YOU AGREE THAT DOCTOR MCCLAIN DID TESTIFY ABOUT THIS SEXUAL ABUSE, DID HE NOT? HE DID YOUR HONOR. IT IS YOUR CLAIM THAT DOCTOR MCCLAIN WAS NOT QUALIFIED? WELL HE WAS NOT QUALIFIED TO TESTIFY REGARDING THE SEXUAL ABUSE. AND WHAT WAS THE DEFICIENCY IN HIS QUALIFICATIONS? HE DID NOT DO THAT KIND OF WORK. HE TESTIFIED POST TRAUMATIC STRESS DISORDER. BUT THAT WAS NOT HIS SPECIALTY AREA. ALL RIGHT. THANK YOU VERY MUCH.