Appendix — Darden v. Florida

Supreme Court brief1977

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APPENDIX

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1976

WILLIE JASPER DARDEN,

Petitioner

STATE OF FLORIDA,

Respondent

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF FLORIDA

PETITION FOR CERTIORARI FILED SEPTEMBER 15, 1976

CERTIORARI GRANTED NOVEMBER 1, 1976

eee —_——

—_——

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

76-5382

WILLIE JASPER DARDEN,

Petitioner

STATE OF FLORIDA,

Respondent

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF FLORIDA

Chronology

Trial Transcript .....

Defense Motion to Limit Voir Dire -

Trial Court’s Instructions to Jury on Sentencing

Responsibility

Voir Dire Concerning Juror Views wn Death

ETRE HS EEE AT beaieuieaaia’

Jury Selection .

Page

ii INDEX

Trial Testimony—Continued

Testimony of State’s Witnesses .......................-------

HELEN TURMAN ............ FAs ROD OPEL NCP

i oe caeieienliaptiniinnainbasibooene

I i ohictemenhshbat “i

BiRRees Ce TID ans ncccccccscscenisnssnseccscsvecesonevensesetnveseszeosens

Testimony of State’s Witnes’ *% ..........-..-------:..::e-0e

I BID 7... nccssnrcnscorsenensnoncasneentapasscesone

Closing Arguments of Counsel ....................... Pon OS

Court’s Preargument Instructions to Jury

MR. MALONEY (Defense) RRR OTR oP A

ee, EE enEeerere ne

MR. McDANIEL (State) ..............-....------------:eeeceeeeeeee es

MR. GOODWILL (Defense) ..........--.....---.---.------0--

Judgment and Sentence .......................--. PREECE PED MET et

Opinion of the Supreme Court of Florida ..........................-...-..

Order of the Supreme Court of the United States Granting

Motion for Leave to Proceed in forma pauperis and Grant-

ing Petition for Writ of Certiorari -...................-....---------

CHRONOLOGY

September 11, 1973: The witness Phillip Arnold shown

photographs of petitioner and others.

September 13, 1973: Preliminary hearing held in Coun-

ty Court of Polk County. Petitioner bound over for

arraignment on first degree murder charges after

being identified by Helen Turman.

September 26, 1973: Indictment returned by Polk Coun-

ty, Florida, Grand Jury charging, inter alia, that

petitioner “unlawfully and from a premeditated de-

sign to effect the death of James C. Turman, did

inflict mortal wounds upon the said James C. Tur-

man, by shooting him with a pistol . . . from which

mortal wounds the said James C. Turman did lan-

guish and die” in violation of Florida Statute

782.04(1) [which defines first degree murder}.

January 15, 1974: Selection of petitioner’s trial jury

began.

January 16, 1974: Presentation of state’s evidence be-

gan.

January 18, 1974: Presentation of defendant’s evidence

began.

January 19, 1974: Counsel for both sides made closing

arguments to the jury.

January 19, 1974: Jury returned verdict finding peti-

tioner guilty of first degree murder and of other

offenses arising from the same events.

January 19, 1974: Jury returned advisory sentencing

verdict recommending imposition of death penalty.

January 23, 1974: Trial court announced its judgment,

sentencing petitioner to death.

(1)

February 18, 1976: Supreme Court of Florida an-

nounced its opinion affirming petitioner’s conviction

and the imposition of the death sentence, with two

justices dissenting.

March 1, 1976: Petitioner moved for rehearing before

the Florida Supreme Court.

April 19, 1976: Supreme Court of Florida denied peti-

tion for rehearing.

May 14, 1976: Mr. Justice Powell signed order staying

petitioner’s execution pending disposition of a timely

application for a writ of certiorart.

July 8, 1976: Mr. Justice Powell signed order extend-

ing petitioner’s time to file a petition for a writ of

certiorari to and including September 16, 1976.

September 15, 1976: Petition for certiorari filed, to-

gether with motion for leave to proceed in forma

pauperis.

November 1, 1976: Motion for leave to proceed in forma

pauperis and petition for writ of certiorari granted.

[I; 21-23]*

[ INDICTMENT |

IN THE CIRCUIT COURT, For The Tenth Judicial

Circuit of Florida, Polk County, Spring Term, in the

-_ of our Lord one thousand nine hundred and seventy

three.

THE STATE OF FLORIDA

Vv.

WILLIE JASPER DARDEN

Indictment for

Count I—First Degree Murder

Capital Felony

78204 (1)

Count II—Robbery

Felony

813.011

Count III—Assault to Commit

Murder in First Degree

784.06

In the Name and by the Authority of the State of

Florida:

The Grand Jurors of the State of Florida, empaneled

and sworn to inquire and true presentment make in and

for the County of Polk upon their oath do present that

* The record in the Florida Supreme Court consists of eight num-

bered volumes of the Transcript of Record. (Volume I contains

pages 1-200; Volume II, pages 201-370; Volume III, pages 1-195;

Volume IV, pages 196-307; Volume V, pages 307a-424; Volume VI,

pages 426-567; Volume VII, pages 568-712; and Volume VIII, pages

713-919.) In addition, there is a separate, unnumbered “Supplement

to transcript of record,” a separate “master index,” and a separate

volume containing the transcript of a hearing held on a motion to

suppress certain evidence. References in the appendix to the Tran-

script of Record appear in brackets and include both volume and

page numbers.

Willie Jasper Darden of the County of Polk and State

of Florida, on the 8th day of September in the year of

our Lord one thousand nine hundred and seventy three

in the County and State aforesaid unlawfully and from

a premeditated design to effect the death of James C.

Turman, did inflict mortal wounds upon the said James

C. Turman, by shooting him with a pistol, a further de-

scription of which is to the Grand Jurors unknown, from

which mortal wounds the said James C. Turman did

lanquish and die on the 8th day of September, 1973, con-

trary to the statute in such cases made and provided,

and against the peace and dignity of the State of Florida.

COUNT II

The Grand Jurors of the State of Florida, empaneled

and sworn to inquire and true presentment make in and

for the County of Polk upon their oath do present that

Willie Jasper Darden of the County of Polk and State

of Florida, on the 8th day of September, 1973, in the

County and State aforesaid unlawfully by force, violence

or assault or putting in fear did feloniously rob, steal

and take away from the person or custody of Helen

Turman, money in currency and coin of the United

States of America, current of the value of one dollar

($1.00) or more, the property of Carl’s Furniture and

Refinishing, with intent permanently to deprive the own-

er of his property and the said Helen Turman was then

and there entitled to the possession of the said one dollar

($1.00) or more, as against the said defendant, Willie

Jasper Darden, and said Willie Jasper Darden, was not

then and there the owner or entitled to possession of said

one dollar ($1.00) or more, in violation of Section

813.011, Florida Statutes.

COUNT III

The Grand Jurors of the State of Florida, empaneled

and sworn to inquire and true presentment make in and

for the County of Polk upon their oath do present that

Willie Jasper Darden of the County of Polk and State

of Florida, on the 8th day of September, 1973, in the

County and State aforesaid unlawfully and feloniously,

and from a premeditated design to effect the death of one

Phillip Arnold, did make an assault on and upon the

said Phillip Arnold with a deadly weapon, to wit: a

pistol, and in furtherance of said assault the said Willie

Jasper Darden did then and there shoot off and discharge

said pistol at and toward him, the said Phillip Arnold,

with intent to inflict divers, severe and serious wounds

in, on and upon the body and limbs of him, the said Phil-

lip Arnold, with intent then and there to kill and mur-

der the said Phillip Arnold, in violation of Section 784.06,

Florida Statutes.

A TRUE BILL /s/ C.W. Adams, Foreman of Grand Jury

Presented in Open Court this 26 day of Sept. 1973

STATE OF FLORIDA

COUNTY OF POLK

The undersigned State Attorney states that he as

State Attorney of the Tenth Judicial Circuit in and for

Polk County, Florida, as authorized and required by

law, has advised the Grand Jury returning this Indict-

ment.

/s/ Glen Darty

GLEN DartTy, As State Attorney

Tenth Judicial Circuit

(Certification Omitted in Printing)

[1; 45-55]

[TRANSCRIPT OF PRELIMINARY HEARING]

IN THE COUNTY COURT OF THE

COUNTY OF POLK, STATE OF FLORIDA

Case Number: CF73-2027

STATE OF FLORIDA, PLAINTIFF,

vs.

WILLIE JASPER DARDEN, DEFENDANT.

The above matter came on for preliminary hearing on

September 13, 1973, at 1:30 P.M., in Courtroom “C”, in

the Hall of Justice Building, Polk County, Bartow, Flori-

da, before the Honorable J. Tim Strickland, Judge. Ap-

pearances were Richard Mars, Esquire, for the State of

Florida, and Jerry Hill, Esquire, for the Defense.

Thereupon, the following proceedings were had and

taken:

MR. MARS: The State is prepared for the prelimi-

nary hearing of the State of Florida vs. Willie Jasper

Darden.

MR. HILL: Your Honor, Mr. Darden is represented

by the Public Defender’s Office, and we’re ready to pro-

ceed at this time. We would request that the rule be

invoked.

THE COURT: Who are your witnesses?

MR. MARS: The State has three witnesses, Your

— Mrs. Helen Turman, Mrs. Edith Hill, and Don

eal.

The State would call Mrs. Helen Turman as it’s first

witness.

THE COURT: Alright. Would the other two indi-

viduals stand, so I can see who we're talking about.

MR. MARS: Don Neal and the lady in blue, Judge.

Mrs. Helen Turman is the woman in the blue dress on

the right hand side.

THE COURT: Alright. Mrs. Turman, if you and

Mr. Neal will—

MR. MARS: Mrs. Turman will be the first witness,

Your Honor.

THE COURT: First witness, alright. Mr. Neal, and

who is the other one?

MR. MARS: Edith Hill, and she is outside.

THE COURT: Have her come in because I want her

to hear these instructions.

THE COURT: Mrs. Hill, you can stand right there.

I just wanted you to hear what I was going to say. I

want both of you out of the room at this time. I don’t

want you to discuss anything among yourselves or any-

one else about this case, and after you have testified and

gone back outside, I do not want you to discuss anything

among yourselves or with anyone else about this case.

Alright, the two of you can step outside.

MR. HILL: Judge, there’s a number of charges in-

volved here this afternoon and I would certainly request,

if possible, it would be identified as to which charge, each

witness is— :

THE COURT: What are your intentions, Mr. Mars?

MR. MARS: The State would take them one at a

time, Your Honor, and start with the murder.

MR. HILL: That’s fine. If you move on, let me know

in case I haven’t picked it up.

Thank you, sir.

THE COURT: Alright. This is the preliminary hear-

ing of State of Florida vs. Willie Jasper Darden, charged

with murder, assault to commit murder, armed robbery,

assault to commit rape. Is that everything?

MR. MARS: Yes, sir.

MR. HILL: Mrs. Turman will be testifying to all

four of these charges, is that correct?

MR. MARS: (Nods head.)

THE COURT: Alright. Mrs. Turman, would you

like this lady who is with you to come up to the stand

and be with you while you are testifying?

MRS. TURMAN: Yes, sir.

THE COURT: Alright. You can have a seat right

here. Alright. Now, face me and raise your right hand.

HELEN LEE TURMAN

having been produced as a witness on behalf of the Plain-

tiff and having first been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. MARS:

THE COURT: Alright. Now, you speak loudly so

everyone can hear what you have to say.

Q. Would you state your name, please?

A. Helen Lee Turman.

Q. Mrs. Turman, did your husband own a furniture

store, Carl’s Furniture?

A. Yes, sir.

Q. Is that store in Polk County?

A. Yes, sir.

Q. Were you and he present in that store on the 9th

day of September of this year, in the evening?

A. At first only I was in there alone when the gun

was pulled in my back. My husband surprised him by

opening the back door and starting in and this man stil!

had a-hold of my arm. He raised a gun and shot my

husband between the eyes.

THE COURT: Ask her to identify.

MR. MARS: Yes, sir.

Q. Can you see this man sitting here?

MR. HILL: Your Honor, I am going to object to that

type of identification.

THE COURT: I’m not. Sit down.

MR. HILL: Judge—

—" COURT: Not under these circumstances, Mr.

ill.

MR. HILL: Judge, even as a defense attorney, that

agg no respect in court, much less for the Court, and

THE COURT: I appreciate—

MR. HILL: And the objection, I want on the record.

THE COURT: I appreciate that. It’s on the record.

This woman has had a traumatic experience and she—

MR. HILL: Judge, I appreciate that. I still have an

obligation to my client.

THE COURT: I appreciate that. Now, if you want

to be held in contempt, you pardon me.

Alright, go ahead.

Q. Is this the man that shot your husband?

A. Yes, sir.

Q. Did you subsequently go to the hospital? Did you

go to the hospital that day?

A. I went later, two hours later after they got

through talking to me in the store.

Q. Did anybody—is your husband now alive or is

your husband deceased?

A. My husband passed away at eleven o’clock Satur-

day night.

Q. September the 9th?

A. Yes, sir.

Q. Okay. Did this man say anything to you when he

came into your store?

A. He said he wanted to buy some furniture for some

rentals. He wanted two sofas, two cook stoves, electric

ranges, three sets of bedding and he said his wife would

be in later, to look at it. Then he turned like he was

leaving. I thought he had left when I started back to-

ward the back of the store, and he called me back and

said he wanted to look at the stoves, and he wanted me

to figure it up. I showed him the stoves and as I started

back around through the front of the store I saw he had

closed the front doors and that’s when he grabbed my

arm and put the gun in my back.

Q. Okay.

MR. MARS: I have no further questions at this time.

CROSS EXAMINATION

BY MR. HILL:

Q. Mrs. Turman, just one or two questions. Was

anyone else present there in the store?

A. No, sir.

Q. Do you remember what time this gentleman en-

tered the store?

A. No, sir. I did not look at the clock, but it was

approximately six o’clock, because that’s the time my

husband always went to the house to feed my poodles

for me.

Q. Yes, ma’am. Do you remember the type of clothes

being worn by the man inside the store?

A. I can’t remember the color precisely what he had

on, but I do remember a stripe around the top of the

t-shirt and I think a stripe around the bottom of it. I

won’t swear to that.

Q. Yes, ma’am. It was a t-shirt, did you say?

A. Yes, sir.

Q. Did you—! believe you stated earlier that this

man put a pistol in your back, is that correct?

A. Yes, sir.

Q. Once that pistol was put in your back, did you

have an occasion to see that man anytime again before

he left the store?

A. Yes, sir.

Q. Do you know how long—

A. I can’t say how long.

Q. Yes, ma’am.

A. But, I will say when my litle neighbor boy come

running to our defense, not knowing what was going on—

when he shot at Phillip, he fired two shots from the store

outside at Phillip and Phillip run, and that’s when he

dropped loose of me and proceeded to pursue after

Phillip.

. And did you see him again after he pursued after

Phillip?

A. No, sir. I did not.

Q. Had you ever seen this man in your store before?

MR. MARS: Your Honor, I would object to that as

being outside the scope of direct examination and getting

into discovery.

THE COURT: Sustained.

MR. HILL: I have nothing further, Your Honor.

MR. MARS: At this time, Your Honor, the State

would move that the defendant be bound over to the Cir-

cuit Court on the charge of murder.

THE COURT: Mrs. Turman, I have only one ques-

tion, because it’s very important and I’ll have to go back

over it one more time, to be sure.

A. Yes, sir.

THE COURT: Are you sure about the identification

of this man you see in front of you as being the same

man that you’ve spoken about?

A. Even with his back to me while I sat back there,

I reached over and touched my sister’s hand and said,

“That’s him.”

THE COURT: Alright.

MR. HILL: Your Honor, this is not an objection. The

only thing I believe was completely left out was location,

and I think this would be the time to give the State and

opportunity to—

THE COURT: Well, there was testimony that it was

in Polk County.

MR. MARS: I said Carl’s Furniture Store.

MR. HILL: I heard that. I didn’t hear the Polk

County.

THE COURT: No, he asked if it was in Polk County.

MR. HILL: Okay.

THE COURT: Alright. The Court is going to bind

this matter over on first degree murder to the Circuit

Court for arraignment to be held—

MR. MARS: Your Honor, may I have a moment to

confer with Mr. Weatherford? There are other charges

pending against this fellow and if I could find out from

Mr. Weatherford how much time he needs—

THE COURT: Well, I’m going to set it for three

weeks from next Monday. Does that cause you any prob-

lem, Mr. Weatherford?

MR. WEATHERFORD: No, sir. I’m not actively in-

vestigating this case.

THE COURT: Alright.

MR. HILL: There is a matter of a grand jury any-

way, I believe, in a crime of this nature, sir.

THE COURT: Well—

MR. MARS: At this time, Your Honor, the State

would no bill the other charges for the preliminary

heering.

THE COURT: As to what?

MR. MARS: We would no bill the armed robbery,

assault to commit murder, and assault to commit rape.

THE COURT: Alright. You ladies can have a seat.

Is that everything?

MR. MARS: The State has no further business.

MR. HILL: That’s all, Your Honor.

(Hearing concluded. )

[Court reporter’s certificate omitted in printing]

(III; 2-182]

{TRANSCRIPT OF JURY SELECTION AT PETITIONER’S TRIAL |

IN THE CIRCUIT COURT

OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR CITRUS COUNTY, FLORIDA

STATE OF FLORIDA, PLAINTIFF,

v8.

WILLIE JASPER DARDEN, DEFENDANT.

Case No. CF 73-2027

TRIAL of the above-styled cause was held on Janu-

ary 15, 16, 17, 18 and 19th, 1974, in the courtroom,

County Courthouse, Inverness, Florida, beginning at 9:00

A.M. o'clock, before the Honorable John H. Dewell, Judge

presiding.

Appearances were: C. Ray McDaniel, Esquire, As-

sistant State Attorney; Norman White, Esquire, Assist-

ant State Attorney, for the State; Raymond A. Goodwill,

Esquire, Assistant Public Defender and Dennis Maloney,

Esquire, Assistant Public Defender, for the Defendant;

the Defendant; the witnesses; The Court Clerk; and the

official court reporter.

Thereupon the following proceedings were had and

taken:

* . * *

|DEFENSE MoTION TO LIMIT VOIR DIRE |

» * * *

THE COURT: All right. We are here to hear a

motion. The State and the defendant represented by

counsel, the defendant is present in person. We are to

hear a motion by the defendant to limit the State At-

torney of his voir dire examination, arguing the Willie

Spoon case.

All right, sir, I am not inclined to grant it. I will be

glad to listen to you on it.

MR. MALONEY: Your Honor, I do not wish to argue

very longly. The Court held in the Willie Spoon case

the prosecutor could not ask these type of questions. In

Florida we now have biforcated trial. The first part of

the trial is used only to determine the question of facts,

whether or not this individual committed a capital crime.

THE COURT: Yes, sir.

MR. MALONEY: I think that a question regarding

how the jury would be disposed to punishment in the

event they found a verdict of guilty would be irrelevant

and immaterial to that trial and to their determination

of the question of fact, whether or not he did it. And all

we are asking is that such questions first not be asked

by either parties, and if, in fact, the Court is going to

allow the questions to be asked, that a response in the

negative they would not impose the death penalty not

constitute a challenge for cause.

THE COURT: No, sir, if, at the conclusion of the

trial, the jury should return a verdict of guilty of mur-

der in the first degree, which is a capital offense, the

same jury would serve as the jury in the second half of

the biforcated trial and there will not be a reselection of

a jury. At this time on voir dire it is necessary to ask

questions of this jury including their attitude on such

things and it’s got to be now.

Under the Florida capital punishment law there are

certain conditions set up under which the proper penalty

is the death penalty. In a prospective jury—It is my

ruling if a prospective juror states on his voir dire exam-

ination that because of his moral, religious or conscien-

tious principles and belief he would be unwilling to recom-

mend a death penalty, even though the facts and circum-

stances meet the requirements of law, then he in effect

has said he would be unwilling to follow the law the

court shall charge upon it and disregard and be unwill-

ing to follow it or if he did follow it, it would be going

against his principles, and, therefore, I would rule that

would be disqualification. If that exists, I intend to

disqualify for cause.

You made your motion and your objection and the mo-

tion will be denied. You will, of course, be allowed at

the time of the voir dire examination to raise your

namely objection, but would indicate the ruling at this

time. I am not cutting you off from objecting when we

get to that specific question. Generally, that will be my

ruling. I won’t cut them off from inquiring in the gen-

eral area; the specific questions they ask may be objec-

tionable, I don’t know.

MR. MALONEY: If I raise the objection, which I

would, will the Court make it a continuing objection?

THE COURT: Yes, sir.

MR. MecDANIEL: Is the Court saying it is going

to be a continuing objection from here on out?

THE COURT: Continuing objection to that partic-

ular line of questions.

MR. McDANIEL: I take it your objection right now

is continuing from here on out?

THE COURT: Yes, sir, to the whole general line of

questions. Still I am not telling you I will deny your

objection on some specific question for some other reason

you feel it has gone too far.

MR. MALONEY: Yes, sir.

* . * *

| TRIAL CouRT’S INSTRUCTIONS

To JURY ON SENTENCING RESPONSIBILITY |

. 2 . *

THE COURT: Now the first count, first degree mur-

der, charges what is under the present law a capital of-

fense. You may be aware that some time ago the capital

punishment law of Florida was declared invalid by the

Courts, by the U.S. Supreme Court. Since then the legis-

lature has passed a new capital punishment law in Flor-

ida that is, and that law is in effect here today. Now

under the new law in the event of a capital crime, such

as we have here today, we have what is known as a

bifurcated trial. That is a trial will be conducted in

two parts.

In the first part the jury will hear the evidence in the

case and will determine the guilt or the innocence of the

defendant without regard to punishment at all, just de-

termine the guilt or innocence of the charge. In the

event the jury should return a verdict of not guilty or

guilty of some lesser included offense less than a capital

crime, of course, then that is the end of the trial. In the

event that the jury should come back with a verdict of

guilty of first degree murder, which is the capital of-

fense then would be held by the same jury the second

part of the bifurcated trial.

During the second part of the trial the jury would

then be allowed to hear additional testimony concerning

facts that were not admissible in consideration of the

guilt or innocence. Matters of age or other factors

listed in the Statute of mitigating or aggravating fac-

tors which could be considered. The jury would then,

by a majority vote—now a vote of guilt or innocence must

be a unanimous verdict, everyone must agree—but on

your second verdict which is known as an advisory sen-

tence the jury by a majority vote would recommend to

me as a Court what the proper sentence should be. If

they find that the aggravating circumstances are suffi-

cient and they are not outweighed by mitigating circum-

stances then the proper recommendation would be that

the death penalty be imposed. If they find that the miti-

gating circumstances outweigh any aggravating circum-

stances, then the recommendation, the verdict should be

the advisory sentence should be for life imprisonment.

In either event the final decision is not the jury’s.

The final decision is restedly solely with the Court. It

will be my decision in the event of a verdict of guilty of

first degree murder it will be my decision to whether

or not, my determination alone, as to whether or not

this defendant should go to the electric chair. I do want

you to understand though that the law intends and I cer-

tainly would give great weight to what the advisory sen-

tence would be. So you should not take your duties lightly.

However, I would not be obligated to follow it. The jury

might return a recommendation, advisory sentence of

the death penalty and I might reduce it to life imprison-

ment and the jury might recommend life imprisonment

and I would feel that they were wrong and sufficiently

strongly to go ahead and administer the death penalty

anyway. Both have been done in this state under the

law, the new law.

Now that is a procedural situation, that is where we

stand. I will tell you further in the event of life im-

prisonment on a capital crime the law provides that the

defendant shall serve not less than twenty-five calendar

years before he becomes eligible for parole which is

contrary to the usual life sentence in any other life sen-

tence the ordinary parole laws would apply.

Now do y’all understand the procedure in a bifurcated

trial?

= . 7 *

{Vork DIRE CONCERNING JUROR VIEWS

ON DEATH PENALTY |

At this time I want to get off into a different area

concerning the capital punishment feature of the case.

I have explained to you already the basic procedure. How

we have a two section trial and how although the final

determination in the event of a verdict of guilty of first

degree murder the final determination as to penalty will

be mine. But that you, if you are selected on the jury,

would be called upon to listen to further testimony and

to advise me by advisory sentence.

Now at the time of the submission of the case, should

that time ever arrive, you will be instructed by me on

the law as to what matters you should consider and what

you should not consider and how you should go about in

arriving at your advisory sentence. Under certain cir-

eumstances if you find the aggravating circumstances

are sufficient they are not outweighed by mitigating then

it would be proper under the law your correct verdict

would he to recommend the death penalty.

Now I am going to ask each of you individually the

same question so listen to me carefully, I want to know

if any of you have such strong religious, moral or con-

scientious principles in opposition to the death penalty

that you would be unwilling to vote to return an advisory

sentence recommending the death sentence even though

the facts presented to you should be such as under the

law would require that recommendation? Do you under-

stand my question?

MR. MALONEY: Your Honor, pursuant to the mo-

tion I filed beforehand I object to this question. I believe

that it is irrelevant to the matter at hand and I think

that the discussion of this at this time prejudices the

defendant’s right to a fair and impartial trial.

THE COURT: All right, sir. Motion will be denied

and the objection overruled.

All right, Mrs. Macy, do you hold such conscientious

moral or religious principles in opposition to the death

penalty you would be unwilling under any circumstances

to recommend the death sentence?

MRS. MACY: No, sir.

THE COURT: Do you, Mr. Blankenship?

MR. BLANKENSHIP: No, sir.

THE COURT: Mr. Pelellat?

MR. PELELLAT: No, sir.

THE COURT: Mrs. Spike.

MRS. SPIKE: No, sir.

MR. VARNEY: Yes, sir.

THE COURT: You feel then, sir, that even though

and I am not saying it will it would be purely specula-

tive, in the event that the evidence should be such that

under the law that should be the legal recommendation

you would be unwilling to return such a recommendation

because of your conscientious beliefs?

MR. VARNEY: I believe I would.

THE COURT: All right, sir. You will be excused.

MR. MALONEY: I renew the objection. I do not

think he should be challenged for cause.

THE COURT: Yes, sir, the objection will be noted

and overruled.

All right, Mr. Varney, you will be excused. Thank you

very much for your service.

CLERK: Debora Ratley.

(Ms. Ratley was seated in the jury box.)

CLERK: Number 114.

THE COURT: Mrs. Hann, do you hold such strong

conscientious moral or religious beliefs that you would

be unwilling under any event to return a death sentence?

MRS. HANN: No, sir.

THE COURT: Mr. Waller?

MR. WALLER: No, sir.

THE COURT: Mr. DeMilt?

MR. DeMILT: No, sir.

THE COURT: Mr. Dorminy?

MR. DORMINY: No, sir.

THE COURT: Mrs. Keck?

MRS. KECK: No, sir.

THE COURT: Mr. Roberts?

MR. ROBERTS: No, sir.

THE COURT: Mr. Mays?

MR. MAYS: Yes. I could not recommend it.

THE COURT: All right.

You will be excused, Mr. Mays. Mr. Maloney, I assume

you wish the same objection to apply to him.

MR. MALONEY: Yes, Your Honor.

THE COURT: So recorded.

(Mr. Mays was excused from the jury box.)

o . - *

THE COURT: Do either of you know of any reason

why you couldn’t sit as a fair and impartia) jurors in

this case?

MR. PURCELL: No.

MR. O’BRY: No.

THE COURT: Do either of you hold such strong

moral or religious conscientious principles in opposition

to the imposition of the death penalty that you would be

unwilling to recommend the imposition of the death pen-

alty regardless of the evidence?

MR. PURCELL: No.

MRS. O’BRY: No.

THE COURT: Do either of the three of you hold

such strong religious, moral or conscientious principles

in opposition to the imposition of the death penalty that

you would be unwilling to vote to recommend the death

penalty regardless of what the evidence was?

MR. CARHUFF: No, sir.

MR. SCHNEIDER: No, sir.

MRS. LUCKER: No, sir.

* - * *

THE COURT: * * *

Ms. Carn, the fact your husband for a while was a

police officer and the fact that we have here listed as

witnesses many police officers and deputy sheriffs conceiv-

ably could raise a little bit of a problem. Do you think

that because of your husband’s previous occupation that

you might be a little inclined to give what the officers

say more weight than you would any other witness you

didn’t know?

MS. CARN: I don’t think that would; but I do not

believe in capital punishment.

THE COURT: The question isn’t, ma’am, whether

you believe in capital punishment or not; the question is

whether or not you have such a strong disbelief in it as

to make it unable for you to vote to return a recommen-

dation of the death penalty regardless of what the evi-

dence might be.

MS. CARN: That’s right.

THE COURT: All right, ma’am. Then we will ex-

cuse you then right now. I appreciate your candor.

MR. MALONEY: Your Honor, once again I object.

I don’t think that is relevant.

THE COURT: Objection will be noted.

(Ms. Carn was excused from the jury box.)

* * - _

THE COURT: .

I have asked the others and I will ask each of the four

of you whether you have such strong religious, conscien-

tious or moral principles against the imposition of the

death penalty that you would be unwilling to vote to re-

turn a recommended sentence of the death penalty re-

gardless of what the evidence or the facts might be?

Would you Ms. Pigeon?

MS. PIGEON: Yes, sir.

THE COURT: Mr. Wall?

MR. WALL: No, sir.

THE COURT: How about you, Ms. Maher?

MS. MAHER: Yes, I do have such convictions. 1 am

a Seventh Day Adventist.

THE COURT: And no matter what the evidence

showed you don’t think you would vote for it?

MS. MAHER: I couldn’t, sir.

THE CCURT: Very well, over the objections of the

defendant she will be excused.

(Ms. Maher was excused from the jury box.)

THE COURT: How about you, Mr. Parker?

MR. PARKER: No.

* * * 7

THE COURT: All right. Mr. Embach, do you have

such strong religious or moral or conscientious principles

in opposition to the death penalty that no matter what

the evidence is you would not be willing to vote to return

a verdict?

MR. EMBACH: No, sir.

THE COURT: Recommending it.

MR. EMBACH: No, sir.

THE COURT: Fine, sir.

. * * 7.

THE COURT: Do you have such strong religious

or moral or conscientious principles in opposition to the

death penalty that you would be unwilling to recommend,

no matter what the facts were, you would be unwilling

to recommend the death penalty to the Court?

MR. LORD: No.

THE COURT: Do you have such strong principles

in opposition to the death penalty under no factual situ-

ation would you be willing to vote to recommend to the

Court the imposition of the death penalty?

MR. HUDSON: No.

o aa 7 7.

THE COURT: Do you have any religious, moral or

conscientious principles against the death penalty that

are so strong that you would be unwilling to vote to rec-

ommend the death penalty regardless of what the facts

might be?

MRS. MAYS: No, sir.

° * * .

THE COURT: Do you have any opinions or princi-

ples in opposition to the death penalty that are so strong

that it would make it impossible or very difficult for you

to vote to recommend a verdict of a death sentence re-

gardless of what the facts might be?

MR. STAHA: No, sir.

* * o *

CLERK: Theodore T. Murphy. Number 87.

(Mr. Murphy was seated in the jury box.)

THE COURT: Mr. Murphy, what is your occupa-

tion?

MR. MURPHY: Retired.

THE COURT: What did you do prior to retirement,

sir?

MR. MURPHY: Several jobs. I was eight and a half

years in the administration office in a seminary, before

that | was thirty years with the utilities.

THE COURT: What seminary were you with, sir?

MR. MURPHY: St. Pios, Uniondale, New York.

THE COURT: Do you have any moral or religious,

conscientious moral or religious principles in opposition

to the death penalty so strong that you would be unable

without violating your own principles to vote to recom-

mend a death penalty regardless of the facts?

MR. MURPHY: Yes, I have.

THE COURT: All right, sir, you will be excused

then.

(Mr. Murphy left the jury box.)

THE COURT: If the facts justify it would you have

no such principles in opposition to the death penalty that

you would be unwilling to vote to recommend the death

penalty?

MRS. MULROY: Depending on the evidence.

THE COURT: Yes, ma’am.

* * . +

THE COURT: Do you hold any religious, conscien-

tious or moral principles which are opposed to the death

penalty, which feelings are so strong that you would be

unwilling to recommend the death penalty?

MR. MACHETT: No.

THE COURT: Do you hold such strong principles in

opposition of the death penalty that you would be unable

without violating them to recommend them, recommend

a death penalty to the Court?

MR. ADKINS: No, sir.

[IV ; 199-287] ,

[TESTIMONY OF HELEN TURMAN |]

HELEN TURMAN, having been produced as a wit-

ness on behalf of the State and having been first duly

sworn, testified as follows:

DIRECT EXAMINATION

BY MR. McDANIEL:

. 7 o .

Q. All right. Mrs. Turman, on that [September 8,

1973], did something happen?

A. Yes, sir.

Q. All right. Start and tell the Jury what happened

on that date?

A. At somewhere between 5:00, 5:30 and 6:00, I

can’t remember the time, this colored man came—was

in the store, as I was—

Q. Let’s start just before that, Mrs. Turman, please.

pc your husband—where were you at five o’clock or

A. Iwas in the store.

Q. Was anyone with you?

A. No, sir.

Q. What happened at that time?

2 . _ .

A. As I opened the back door on the store, a colored

man stood at the door. He says, “Oh, there you are.”

I says, “Yes, sir, what can I help you with?” He says,

“I want to look at some furniture and I want approxi-

mately $600 worth of furniture for some furnished

apartments,” rooms or apartments.

Was anyone with you?

I was alone.

Was anyone with him?

No, sir, I did not see anybody.

Then what happened?

. I proceeded to show him the furniture. He look

at two couches, bedding. te

POPOPe

Q. Tell the Jury, describe to the Jury for them, the

type of building and type of business it was.

A. The back part of the store was frame.

Q. Frame?

A. Frame. It was dark back in there, and the front

part of the store was concrete block.

Q. What kind of door was on the front?

A. On the left hand, well, entering the store, it would

be the right-hand side of the door—of the store is a

large, sliding door. It slides up overhead.

Q. Yes, ma’am.

A. And then the glass door where you enter is a

sliding glass door which slides to the side. Then there

is a big window on the other side.

Q. All right, any other doors?

A. There is, in the other end is another large, sliding,

loading door that slides overhead.

Q. All right. What were the lighting conditions in

the front part of the store?

A. Very poor.

Q. In the back part?

A. Very poor.

Q. Did you have any lights on?

A. I did have some lights on, but not all.

Q. Do you have an office in the building or in the

store?

A. I had my desk setting just inside the frame part

of the building from the concrete block part.

Q. All right. You said that this man asked you or

told you he wanted to buy about $600 worth of furniture

for apartments?

For furnishing for furnished apartments.

For furnished apartments?

Yes.

And he asked you for something specific?

Bedding, couches and ranges.

All right, then what happened?

. I proceeded f> show him what I had. I showed

him the bedding and the couches. Somehow I had ne-

glected to take him into the room where the ranges were.

>OPOro>

I thought he had left. He said his wife would be back;

and I went, started back into the back of the store again,

back where my desk was, when he returned and said he

would like to see the ranges, the stoves.

Q. The same man, ma’am?

A. Yes, sir.

Q. All right,

A. I’d taken him over to where the stoves were and

showed him and he pointed out two stoves and he told

me not to forget to show those two to his wife when

she came.

Q. Go ahead.

A. And so he asked me the price or what—if I could

total that up. And I said I can go to my adding machine

and total it up and give you what that totals. And, as

I turned my back and started out, I got out to where a

mahogany Duncan Phyfe table was sitting with chairs

on it when I felt the gun hit my back. And he held

my right arm here. He says, “Do as I say and you

won’t get hurt.”

Q. All right, what happened next?

A. He reached out with his other hand with the gun

and pulled the loading door down with the gun and

then asked for the key to the glass door. I said, “There

is no key, I lock it with a stick.” So he told me to

fasten it and as I picked up the stick, he says, “Don’t

try anything funny.” So I fastened the door.

Q. With the stick?

A. With the stick.

Q. All right, ma’am.

A. And then he taken me on back to the office and

where the cash register was. He told

cash register. reheiie cs

Q. Was it locked?

A. No.

Q. Okay. Did you open it?

A. I opened it.

Q. What happened?

A. He told me to back up with my back against the

refrigerator. He taken the bills out, di

Pn mae ig nnd out, did not bother the

Q. Do you know how many bills he took out?

A. Not exactly, but I will say not more than $15.

I don’t know how much I had.

Q. Are you positive it was vat least one dollar?

A. lam.

Q. Then what happened? What did he do with the

money, ma’am?

He stuck it in his pocket.

Did he still have the gun at that time?

Yes, sir.

Do you know which hand he had the gun in?

I don’t know.

At that time?

At that time.

So he took the money out of the cash registe: him-

OPOPO POP

Yes, sir.

Put it in his pocket?

Yes, sir.

Then what did he do?

_ He told me to go on toward the back of the store.

I started around—I was getting weak in my knees. I

thought I was going to fall. He told me to stand up

and keep going. We got back to the back room of the

store where I had box springs and mattress stacked

against the wall. And about that time, my husband

opened the door. When he reached across my right

shoulder and I screamed, “No, Jim, don’t come in,” but

it was too late. He had already fired the gun and shot

my husband. My husband did not have a chance to say

a word. He just threw his hands up like that and fell

backward onto the ground.

All you said to your husband at that time was

“Jim, don’t come in’?

Right.

And your husband did not respond?

He did not respond.

Did this man say anything to him?

No, sir.

Were any other words said at all at that point?

Yes.

>O>O>

>OPOPop

Q. Okay, what was that, ma’am?

har glen, oe ag * = front of me and held

e. He says, “Stand still, don’t ‘ys

Q. Who said this? seninicaecia

A. The colored-man.

2 All right.

- While he held the gun on me, he reached

’ out out

the door, taken hold my husband’s belt and sailed his

— into = puddle of water there in the door. One

beilding = e door, the other was up on the side of the

2 All right.

- This is the position my husband laid in i

back. He came back in and then he told me to thy on

adjoining room where mattresses were stacked.

Did anyone close the door, Mrs. Turman?

He did. .

Ma’am?

He did.

+ he able to close it completely?

Why?

Because my husband’s foot—one foot was in the

22 popopeore

Mrs. Turman, did your husb

up after the shot was fired? usband ever move or get

No, sir.

D ;

Yes = — where the shot hit your husband?

Where?

Between the eyes.

All right, what happened then?

He told me to get down on the floor.

Where was this, Mrs. Turman?

= the mattress room.

ow far is thi

me nh, «BS is from the back door where your

= right at the back door.

an you estimate in footage?

About three foot. <j

Did you get down on the floor?

I sat down on the floor.

ZOPOPOPO>OD

PO PO >

AOD. 2 >

Q. All right. Where you were sitting, how far was

that from your husband’s body?

A. Four to five feet.

Q. All right, go ahead. You say four to five feet?

A. Yes.

. What happened then?

A. I asked him to please let me go to my husband.

He says, “He is all right. I only shot him in the should-

er.” He told me to take my teeth out. I didn’t have my

teeth in.

Q. What was he doing at the time he told you to

take your teeth out?

A. He was unzipping his pants and undoing his belt

buckle.

Q. Then what happened?

A. I cried, “Lord, have mercy.” And he taken his

penis out and told me to suck it.

Q. What happened then, Mrs. Turman?

A. Again I cried, “Lord, have mercy.” He told me to

get up and he was taking me back toward the front

of the store.

Q. Did he zip his pants back up?

A. I don’t know.

Q. How long were you on the floor, do you know?

A. Just a few minutes or seconds. I was too scared

to even estimate the time.

Q. What happened then?

A. As we got halfway back up through the building

by a sewing machine I had out, had been sewing that

day, as we got there, Phillip Arnold, a part-time em-

ployee, he hadn’t worked for two or, I’d say, approxi-

mately two months or a little more.

Q.. Where does Phillip live?

A. Two doors from us. When he came and shoved the

back door open.

Q. Where were you and this man at that time when

he shoved the back door open?

A. By the sewing machine.

Q. All right, was this in a direct line?

A. It was in a direct line of the door.

Direct line from the back door?

Yes, sir.

All right, what happened then?

I screamed “Phillip, no. Go back, go back.” At

that time he left me and run to Phillip.

Q. Who left you?

A. The colored man.

Q. Go ahead.

A. And I heard sort of a click of a gun which was a

misfire and then I heard a shot and I saw him shoot

Phillip in the face.

Q. Then what happened?

A. Phillip run and he proceeded to run after Phillip,

and I turned and ran to the phone and dialed the oper-

ator, give my name and my address, told her what had

happened and for her to please call the sheriff for me.

And I hung up and went back to my husband’s side.

Q. Did you see Phillip at that time?

A. The last I saw of Phillip before he was put in the

ambulance was when he was running across the yard

and running back toward some houses back of us.

Q. All right. You said a moment ago that Phillip

was in the back door which is the same back where your

husband was lying half in and half out?

A. Right.

Q. You said that ‘Phillip opened the back door?

A. Yes.

Q. What was Phillip doing at the time he opened the

back door? Could you see him then?

A. I saw him. That’s when I screamed to him. He

didn’t know what was going on.

Q. Did you hear Phillip say anything?

A. I did not. He said he did, but I did not hear it.

I was too frightened and screaming for him to go back.

Q. Was he running at that time, ma’am?

A. Yes, sir.

Q. You say you saw Phillip over your husband’s

body?

A. I did.

PO Po

—

— wr.

The man walked from the back room, from you,

‘and you heard a click and the man shot Phillip in the

face? a

sir.

nd many shots did you hear there at the body?

Three—two. ;

Click and shots, ma'am, which?

One click and two shots.

That was at the body?

Yes, sir.

Did you hear any other shots? a

. 1 did met. Evidently the other one whieh | was

told was fired.

MR. GOODWILL: I object, Your Honor. |

THE COURT: Objection sustained, as to what you

nave been told.

Q. You did not kear another shot?

. I did not. ; =

7) You heard a click and two shots while Phillip was

over your husband’s body?

A. Right.

Q. Turman, | want you to look around the court-

room today and see if you see thisman. _

MR. MALONEY: Your Honor, | object and request

the Jury be excused for the purpose of a motion.

THE COURT: All right. I will allow your request.

Mr. Bailiff, if you will take the Jury out for a minute.

(The Jury left the courtroom. )

(JURY OUT)

THE COURT: All right.

MR. MALONEY: Your Honor, | would move to sup-

press the identification of the Defendant by this witness

on the grounds that the identification subsequent to the

arrest of the Defendant by this witness was tainted.

THE COURT: On what basis, sir?

MR. MALONEY: I think, sir, that there is standard

procedure which should have been followed in the inter-

est of fairness, were not followed here and I would re-

>OPOPO>ro>

quest the Court to allow me to ask Mrs. Turman a few

questions.

THE COURT: All right, sir. Proceed.

EXAMINATION

BY MR. MALONEY:

Q. Mrs. Turman, when is the next time that you had

occasion to see the man who was in your store?

A. The day after the funeral.

Q. Do you remember why you were there?

ry = identify him.

’ as this at a hearing or did they tak

the police station? - 7

A. Toa hearing.

Q. Do you know if that was a preliminary hearing?

ry im sir.

. d that was the first ti

m A - me that you had seen

A. Yes, sir.

Q. Do you remember a man named Richard Mars who

was an assistant State attorney there that day?

A. Yes, sir.

Q. Do you remember a man named Gerald Hill?

Q — sir.

. ore this hearing, had the poli

m.. _ g police shown you any

ry No, sir.

- Before the hearing, had you had occasion t

the man in what is commonly known as a ee? —

ry a sir.

Q. realize that you must have been quite upset b

— did you read the papers jagitling this inch

A. No, sir, I have never yet even to thi

account of my husband’s death. @ see Gay read the

x .- at ma’am.

. NEY: Your Honor, I’d like to d

Court s attention to the preliminary heniing =

identification which Mrs. Turman has stated the first oc-

ae ee ee

casion to see the person who was in the store after-

wards. The identification, in my opinion, was tainted at

the preliminary hearing.

“Question by the Court.” -

MR. McDANIEL: Your Honor, | object unless Mr.

Maloney—the proper way to do it is ask the witness if

a certain question was asked and if a certain response

was given, if he is going to impeach a witness; but not

testify yourself from a transcript.

MR. MALONEY: Your Honor, I’m not attempting to

impeach this witness, I am merely saying that the pro-

cedures followed were inadequate.

MR. McDANIEL: Then that’s up to you to prove it,

not for the Court to allow you to testify from a tran-

script. 2

MR. MALONEY: Would the Court take judicial no-

tice or would the Court read this transcript or allow me

to read it into the record?

THE COURT: Yes, sir. I assume that’s a transcript

prepared by an authorized court reporter?

MR. MALONEY: Yes, sir, it is. Alice D. Wren.

MR. MALONEY: Statement by the Court, Judge

Strickland.

MR. McDANIEL: Your Honor, would you allow him

to tell the Court who the Plaintiffs were at that time?

MR. MALONEY: The players at that time were

Judge Strickland, Mr. Richard Mars and Mr. Gerald

Hill. On the stand was Mrs. Turman.

THE COURT: All right, sir.

MR. WHITE: Mr. Maloney, what page are you on

now?

MR. MALONEY: I am on Page 7. Judge Strickland

asked her to identify “Mr. Mars, Answer, Yes, sir.”

Mr. Mars says then, “Can you see the man sitting

here?” At that point, %r. Hill “Your Honor, I’m going

to object to this type of identification.”

THE COURT: Was Mr. Hill representing the De-

fendant?

MR. MALONEY: Yes, Your Honor, he was.

THE COURT: All right, sir.

MR. MALONEY: “The Court: I am not—sit down.”

Your Honor, I believe that the police had the man in

custody hours after this.

THE COURT: I didn’t quite follow that colloquy.

MR. GOODWILL: Your Honor, that was part of the

reason for the objection. Bits and pieces can be recon-

structed of what occurred.

MR. McDANIEL: Only from the transcript, Your

Honor.

MR. GOODWILL: Or from the testimony of Mrs.

Turman.

MR. McDANIEL: Right.

THE COURT: I read the balance of the colloquy as

follows: “Mr. Hill: Your Honor, I am going to object

to this type of identification.

“The Court: Not under these circumstances, Mr. Hill.

Mr. Hill: Judge, even as Defense attorney, that

shows no respect for the Court, much less for the Court.

“The Court: I appreciate it.

“Mr. Hill: The objection I want on the record.

‘The Court: I appreciate that. It’s on the record.

This woman has had a traumatic experience, Mr. Hill.

‘Mr. Hill: Judge, I appreciate that. I still have an

“aa my client.

“The : I appreciate that. If you want to be—if

you want to be held in contem ou

se Pap pt, you pardon me. All

7a cae Yes, sir.

RT: All right, what is your position?

MR. MALONEY: Your Honor, I think Mhis—in this

case, In a case such as this where eyewitness identifica-

tion is so important, the police could have exercised and

they should have exercised more fair procedure. The man

was in custody. They could have had a lineup in which

six men of his same race, same general height, general

build, general age “ used and allowed the woman to

ineup. If that were too traumati

they could have used a photograph lineup as they did in

— occasion. But they didn’t do that either. Instead

ey waited for a preliminary hearing some days later

when the Defendant was the only black man in the room.

MR. MeDANIEL: Objection, Your Honor. That’s an

assumption on Mr. Maloney’s part.

THE COURT: Yes, sir.

MR. McDANIEL: Move to strike it, Your Honor.

THE COURT: The objection will be sustained. Go

ahead, sir.

MR. MALONEY: Your Honor, I realize that this

is not on testimony. I was in the room at the time.

THE COURT: Go ahead, sir.

MR. MALONEY: In short, Your Honor, we move

the identification be suppressed on the grounds that the

identification which the lady is about to make now quite

possibly was made from the identification at the prelim-

inary hearing, and that identification was tainted be-

cause Mr. Jordan was the only black man in the room

and because Mr. Mars pointed out the man and said—

MR. McDANIEL: Objection, Your Honor. This is

not in the transcript, at least my recollection of the

transcript.

MR. GOODWILL: Your Honor, would you allow Mr.

Maloney to go ahead and finish his argument and then

if Mr. McDaniel has objections to it, he certainly would

have an opportunity to present it to the Court.

THE COURT: No, sir. Mr. McDaniel, I will make—

MR. GOODWILL: The constant interruptions—

MR. McDANIEL: I’m not objecting to his argument.

I am objecting to his testimony.

THE COURT: No, sir, I’m going to allow him to

object any time he thinks it necessary. Go ahead, sir.

MR. MALONEY: I think Mr. Mars said, “Can you

see the man sitting here?” I was in the room. He

pointed at the man and said, “Can you see the man sit-

ting here?” The only black man in the room and from

that identification, the man was—

THE COURT: All right, sir, Dennis, assuming that

all this will be—could be proved, I will still not sustain

your motion. What the State could have done or could

not have done, or what the enforcement officers could

have done or should have done are matters to go to the

believability of the identification and proper matters for

consideration by the Jury. They don’t go to the admis-

sibility of identification and they do not render it inad-

missible. So I will overrule, deny your motion, overrule

MR. MeDAN

. Me IEL: Your Honor, ma -

tion of the Court? ra ae

THE COURT: Yes, sir.

MR. McDANIEL: Mr. Maloney testified that, in his

testimony that the police did this and the State did this.

My recollection—I don’t have a copy of the transcript—

this is the Court doing this, is it not?

THE COURT: Partially the Court and partially the

State attorney, assistant State attorney.

MR. McDANIEL: Thank you, Your Honor. Are you

ready, Your Honor?

_ THE COURT: Yes, sir. All right, Mr. Bailiff bring

in the Jury.

(The Jury returned to the courtroom.)

(JURY IN)

DIRECT EXAMINATION (Continued)

BY MR. MecDANIEL:

Q. Mrs. Turman my last question to

’ ou was, I

asked you to look around the courtroom ind tell me

and tell the Jury whether or not the man that was in

your house on that particular date, the colored man that

murdered your husband, is in th

aa dea € courtroom today. Can

A. Yes, sir.

Q. Is he in the courtroom?

ry He is.

- Would you point him out to th

A. Right there, siesta 2 sara

lee Are you pointing to tue man at the end of the

A. Yes, sir.

MR. McDANIEL: Let the

ness identified the Defendant. © '°™ ‘hat the wit-

Q. Mrs. Turman, I want you to look at the man

very, very, very carefully.

A. Yes, sir.

Q. Is there any question in your mind whatsoever?

A. None.

Q. Does he appear the same as he did on September

the 8th?

A. No, sir.

Q. What, if anything, has he done since that date?

A. He has growed a goatee and his hair is not combed

down like it was. It’s more bushed out. He was very

clean shaven, appeared very intelligent, and at first

talked very intelligent.

Q. Mrs. Turman, after the September 8th, until to-

day, have you seen Mr. Jordan?

A. The day after the funeral, as I said.

Q. Do you remember when the funeral was?

A. Yes, sir, September 13th, on a Wednesday.

Q. You say you saw Mr. Jordan the day after?

A. Yes, sir.

Q. Where was that?

A. At the preliminary hearing.

Q. Did you have any trouble identifying him on that

date?

A. I did not.

Q. And again, you’re absolutely positive?

A. Yes, sir.

Q. All right. Have you seen My. Jordan since that

date until today?

A. No, sir.

Q. Have you seen him in the Courthouse—how long

have we been in trial now—yesivrday?

A. I did not.

Q. Or today?

A. Not until I come in this room.

Q. Mrs. Turman, on September the 8th, would you

describe if you can how Mr. Jordan was dressed?

A. Very neat. Color, I cannot—but he was neat.

Q. Did he have a suit on?

ee a ee

A. I don’t recall whether it was a complete suit or

whether it was sports clothes—he did have a sport

shirt with a stripe around the neck,

Q. What kind of sport shirt are you talking about?

A. A pullover,

Q. Pullover?

A. Pullover,

Q. And what was around the neck?

A. A stripe.

Q. Do you recall whether he had glasses on that day

or not

A. No glasses.

Q. Do you recall whether he had a hat on?

A. No, sir.

Q. You don’t recall, or he did not?

A. He did not.

Q. Do you recall his pants?

A. No, I don’t recall the color, no, sir.

p a Can you remember whether they were light or

A. Tiley were dark, but the color, I don’t know.

Q. Were they solid, or some other?

A. Solid,

Q. Do you remember he had any shoes on or anything

he had on?

A. I did not look.

Q Do you know if he was barefooted, or do you

know?

A. I don’t know.

MR. MecDANIEL: Excuse me a minute, Your Honor.

THE COURT: Yes, sir.

MR. MeDANIEL: Your Honor, may the attorneys

approach the Bench?

THE COURT: Yes, sir,

(The attorneys approached the Bench.)

(A discussion was held at the Bench as follows: )

MR. MeDANIEL: I am fixing to bring the gun out

marked for identification. She cannot identify the gun.

I want to show her the gun and ask her if it is the same

size, but she is not able to identify it as being the gun.

MR. GOODWILL: Do you want—

MR. MeDANIEL: Do you want to object now or

aR. GOODWILL: If she can’t identify the gun, what

is the relevance for them to see it? It would only preju-

dice them, that’s the only reason for doing it at this time.

MR. McDANIEL: Well, I will withdraw it.

(The attorneys left the Bench.)

Q. Mrs. Turman, you testified earlier that Mr. Jordan

had a gun, Did he have more than one gun?

. I only saw one,

ry All right, Would you describe that gun to the

Jury to the best of your ability?

A. To the best of my ability, it was a hand gun.

What do you mean, hand gun?

A. I don’t know one gun from another, I am not ac-

quainted with guns, It was a hand gun. It wasn’t a long

rifle. — P

Q. All right. Could you estimate the entire length )

the gun he had in his hand with your hands ma’am?

A. That would be really hard to say, but maybe—

Q. The entire length of the gun?

A. I think so,

Q. All right. Do you recall the color?

» A. It looked dark.

Q. Dark?

A. Yes, sir.

Q. That’s all you remember?

A. Yes, sir.

Q. Anything else distinguishing about the gun Mr.

Jordan shot your husband with?

A. No, sir.

. No, strike that. .

MR. MeDANIEL: May I have a moment, Your

Honor?

THE COURT: Yes, sir.

Mrs. Turman, between the time your husband was

shot and the time you saw Mr. Jordan at the preliminary

hearing, did you have an occasion to see any newspaper

articles where Mr. Jordan’s photograph was in that ar-

ticle?

A. I did not,

Q. Did you read any newspaper article?

A. I did not. I was too upset making funeral ar-

rangements, I did not read a paper and have not yet to

this day read a paper in the State of Florida. While I

was back in West Virginia, I did read some papers, but

there was nothing in West Virginia papers about it,

Q. Mrs. Turman, between the day your husband was

murdered and the preliminary hearing, did any police

officers or anyone else show you any photographs?

A. No, sir.

Q. Until this day, has anyone attempted or shown

you a photograph of this Defendant?

No, sir.

Q. Can you estimate approximately how long Mr.

Jordan was in your presence in the store?

A. I'd say about ten minutes.

— that be before and after your husband was

A. Yes, sir.

Q. All right. Do you have any question in your mind

that this is the man that murdered your husband?

A. None.

MR. McDANIEL: I have no further questions,

THE COURT: All right, I think we will take a

recess before you cross-examine. Everyone rise while

the Jury’s excused,

(There was a brief recess and Court reconvened with

the same appearances, )

THE COURT: All right, Mr. Bailiff, bring the Jury

in, Will everyone rise while the Jury comes in.

(The Jury returned to the courtroom, )

(JURY IN)

CROSS-EXAMINATION

BY MR. GOODWILL:

. Mrs. Turman, Do you remember me from taking

your deposition sometime back? : ;

A. Yes, sir.

Q. There’s some questions that I want to ask you as

far as events of that day, which I realize from our prior

encounter are most difficult for you to testify. In order

to make sure that all points have been covered from

both the standpoint of the prosecution and of the defense,

Do you recall immediately after this very unfortunate.

event occurred, speaking to an Officer Don Neil with

the Polk County Sheriff’s Department?

A. I don’t recall all names.

Q. And do you recall an officer taking a statement

from you?

A. Yes, sir.

Q. Probably on a tape recorder?

A. Yes, sir.

. Do you recall what your description of the man

that had committed these acts was at that time or what

the description was that you gave him at that time?

A. I recall telling him as for giving a definite de-

scription, I am a poor hand at doing it; but I do re-

member faces, But to describe someone I can’t really do

it.

Q. Okay. Isn’t it true that you have made the state-

ment both to Mr. Neil and in a subsequent deposition that

you really don’t pay that much attention to customers

when they come in?

A. I did make that statement that I don’t pay that

much attention to how they are dressed or anything, but

faces I do remember. I remember my customers.

Q. All right. Now what time did you say that Mr.—

that this man came into your store the first time?

A. Between 5:30 and 6:00,

Q. All right. Do you recall telling Officer Neil that

it was six o’clock or possibly a little after?

") : — recall saying after.

. Is it possible, though, it was six o’

than 5:30, closer to six o'clock? gx a ia

A, a possible,

). at was the first thing that you sh

individual when he came into Seas telat oe

A. The bedding back where he was standing at the

door when I came in, which is where the bedding is at,

Q. Do you recall telling Officer Neil that the first

ard — pgp my to the stove room?

. No, sir, first place I went after | .

ar ee oe couches, ro

, this individual seem to be

what you were showing him? ee

A. Yes, sir.

2. a he inquire?

1 the ant - he was looking at the best ones I had

Q. Did he inquire about price or quality or anything

of these sorts which is th

See ae e normal, I assume the normal

A. No, sir, he didn’t.

2 He i did he ask?

: e just looked at them and as I

mu customers on rental that it isn’t a ite oy

: @ very best because people, which I told him people

"° t oye _ of someone else’s property :

. right, e first

— and some aah on oe

eds first because that’s where |

_ a y | ve was, the box otee Be =

en up in front, |

“|. . , = where the couches a i

. right. As you walked through

~_ portion of the time, where was i thes bs ‘relation

: you? Was he walking alongside of your or in f

of you or behind of you or where? se

A. I don’t remember.

. Had

2 Ne og ever seen him in your store before?

r ,

_ Then would it have been natural for you to lead

him through the store?

A. Most usually it would be, but since he had al-

ready made his way first from the front of the store to

the back of the back door before I came in, then I

believe I said the couches are up in the front, if you care

to go.

Q. Do you know if he touched anything while he was

looking at the couches?

A. No, sir.

. Do you know that he didn’t?

A. I don’t know that he didn’t.

Q. All right. Do you recall what your description to

Officer Neil was as far as this man’s face was concerned?

A. I don’t remember, no, sir.

Q. Do you remember whether or not the man had

glasses on?

A. He did not have glasses on.

Do you recall Officer Neil asking you the question

whether or not this man wore glasses?

A. I don’t recall.

. Was your answer that he did not wear glasses?

A. He did not wear glasses.

Q. All right. Now the statement we're talking about

was taken when in relation to the events of that after-

noon? |

A. That after my husband had been taken to the

emergency room,

Q. In fact, this statement was taken while your

husband was at the emergency room.

A. Bither at or en route, but I was still being held

at the store.

Q. Immediately after the event is when this state-

ment that we are referring to was taken?

A. Yes.

Q. All right. Do you recall Officer Neil asking the

following question which is from the statement on Page

6: “Question: Uh-huh, how about glasses? Did he wear

glasses, do you remember?

“Answer: I don’t remember.” Was that your answer

at that time?

A. Again, I will have to say I don’t remember what

my answer was that night. I was more or less in a

state of shock,

Q. Okay. But today, assuming this is a correct tran-

scription, you’re saying that he did not wear glasses; but

at that time, you didn’t remember, which wus immediately

after the event?

A. Right.

Q. All right. Do you recall Officer Nei] asking you

about his general build?

A. I recall him asking me and I couldn’t describe it.

Q. Let me ask you if your remember these questions

and answers again coming from the statement you gave

to the officers that night.

Question; “Uh-huh. Was he ne

clean-looking, clean-shaven ?

Answer: “As far as I can remember, yes, sir,”

Question: “Did he talk with any kind of brogue or

accent or anything like this?”

Answer: “No, sir; no, sir.”

Question: “How about his facial features, Do you

remember anything about it? Was it a slender face

or a fat face, or—”

Answer: “TI believe it was a fat face,”

Question: “Kind of?”

Answer: “He himself was a heavyset man,”

Do = ~y that series of questions and answers?

es, sir,

Q. All right, at that time, did you describe the as-

sailant as heavyset man?

A. Possible; yes, sir, I believe I did,

- Do you recall whether or not you were asked how

tall the man was?

A. Yes, sir.

Q. Do you remember what your answer to that was?

A. I says taller than I am but exactly I couldn’t Say.

Again reading from the same statement, do you

recall this question? “Question: How old of a person

do you think he is? I know it’s hard to tell, but if you

just make a guess for me.

at in his appearance,

“Answer: I would say approximately in his maybe

i late thirties.

gag Boat vny "Forty? And about how tall do you think

he was?

“Answer: Well, he—

“ . . m—

“eames : ands say he is about my height, which

is five six.” _

ll giving those answers: ‘-

= 7 yo phe thet. but I do recall giving the age

of either early—late thirties or early forties. a iin

Q. Today you’re saying your description : ==

was that he was taller than you are; but t . ogg

statement you said that he was about your height,

? ’

= ap mt | ‘said, I was in a state ~ a I can’t re-

ly what I said that night.

™Q. a 3 that's understandable. hated you recall being

asked about his weight or general size?

, all it.

ry De oo ‘recall responding that he was heavy, that

he was around 200 pounds or over?

A. I don’t recall. , Sli cies een

ou had an opportunity since the

in Bh ‘this statement to Officer Neil to read over a

transcript of it?

ry Hes ‘this transcript been discussed with you by

the State Attorney’s Office?

. | i tion: “Do you

. Okay. Do you remember this ques : yee

shiv that if you saw this person again, you —_ oe

tify him, say, out of a possible (it is not audible) ”—

a caaeiiy the machine was not audible—do you yemem-

4 that question being asked to you at that time?

, sir, I do.

" De you recall what you answer was?

A. I don’t.

Q. Was your answer: “I would try, I would try; I

might—I don’t know. He did say that Jim owed him I

don’t knuw what. We don’t owe anyone like that.”

A. As ! said, I don’t remember my answer.

Q. Do you remember anything that you gave as an

answer on this report?

. A. a ee that he did say that we owed

im, an as im what for and I wou

him if I owed him. ro

Q. But I am talking specifically now about questions

which were asked to you by the officer immediately after

this event took. Do you recall what your answers were

at that time?

A. I don’t.

Q. Okay. After this man pulled a gun on you—I

or « i may sound ridiculous, but were you scared?

. Yes,

Q. Were you too seared to look or know what was

actually going on around you?

A. I was.

Q. Didn’t you, or haven’t you in the past made the

statement that identification would be hard because at

one — put your hands over your face and began to

pray

ry S did make that statement.

- Oo you recall telling Officer Neil th

too scared to look? . ——

A. Yes, sir.

Q. I can certainly understand this. in, it is

an attempt to pick on you but to make = that— -

MR. McDANIEL: Your Honor, I appreciate the ar-

gument, but I’d rather he ask questions than argue.

MR. GOODWILL: I don’t believe I was arguing.

THE COURT: I don’t think it was out of line. Go

ahead, sir.

Q. Did you describe the gun to Officer Neil?

Q hey sir.

a. id you tell Officer Neil of the atte -

sion that the man tried to make you aut _

A. I don’t recall.

Q. Is it possible that you didn’t?

A. It’s possible I didn’t.

Q. If you didn’t, can you tell me why you would not?

A. If I didn’t, I would say it was because I was in

such a state of shock that everything didn’t come to my

mind.

Q. Now you say when Phillip came in, was the door

open or shut?

A. It was shut. Phillip pushed the door open.

Q. Do you recall telling Officer Neil that the door

was open when Phillip came in?

A. No, sir.

Q. After Phillip had been apparently shot, was your

testimony that you called someone on the phone, on the

telephone?

A. I dialed the operator.

Q. Okay. What did you say to her?

A. I gave her my name, address, told her what had

happened and please call the sheriff’s office for me.

Q. All right, then what did you do#*

A. After that I called my sister, Mrs. Fulgrave, told

her what had happened, and that I needed her. And I

called my pastor.

Q. And is it correct, say, that at this time your hus-

band was still laying outside in the rain and you had

not gone to him at this point?

A. I had gone to him and then went back to the

phone to call them. I went to him to check to see if he

was still alive or not.

Q. Did you tell Officer Neil this?

A. I don’t recall.

Q. Do you recall whether or not you told Officer Neil

that you called your sister and your pastor?

A. I did tell him that I called my sister and my pas-

tor.

Q. Are you absolutely certain of that?

A. Yes, sir, they were there when he arrived.

Q. During the time that he was taking this statement

you told him this? You told him that you called your

sister and your pastor.

A. Yes, sir.

Q. Do you recall Officer Neil asking the following

= and the following responses being given by

you

MR. McDANIEL: What page are you on?

MR. GOODWILL: Page 4.

Q. “Question: Uh-huh. How many shots were fired,

do you know?

“Answer: One, one at my husband, two I know at

Phillip at the back door, and I don’t know how many

after they left here, because I came’back inside, dialed

the operator, give my address, and told her there was a

shooting and a holdup here, and for her to please call

the sheriff’s office.

Question: Uh-huh. What happened after that?”—

excuse me—“What happened after then?

“Answer: I went back out to stay with Jim until

help came.” Is that correct?

A. That’s correct.

Q. How long did you say this man was in the store

total time?

A. Approximately ten minutes more or less.

Q. Well, more or less?

A. Well, when you are in a state of shock, you’re not

watching your watch or clock.

Q. No, ma’am, I am asking you now to tell me, if

you can, as precisely as you can, how long this man was

in the store.

A. Ten minutes.

Q. Now this includes both times he was in the store?

A. I can’t remember distinctly.

Q. Okay. Could it have been longer?

ry It could have been.

. All! right. Didn’t you, in fact, tell the police of-

ficer that he, the man came in and you thowed bien the

sofas and the bedding and then he left?

A. Yes, sir.

. All right, wh i i

oie gnt, when he left, what did he Say, if any-

A. That his wife would be back, would be in lat

Q. All right. And then what did you do? a

A. I turned to go back to my desk.

Q. All right, and how long was it before you saw

him the next time?

A. He came right back in.

Q. Immediately?

A. Yes, sir.

* - * *

Q. Did you watch him at all times he was in that

room?

A. No, sir, I did not.

Q. Okay. So at this point, there was really no cause

for alarm?

A. No, sir.

Q. As far as you were concerned?

A. No, sir.

* * * *

Q. All right, ma’am. Do you recall coming into my

office in Bartow back in October and my taking your

deposition?

A. Yes, sir.

Q. Okay. Do you recall me asking you how the man

was dressed at that time?

I do.

I am talking about the time we took the deposition.

I do.

You remember me asking that question?

Yes, sir.

Do you recall what your answer was?

I told you I couldn’t tell you the color of his

clothes, but he had on this pullover—

MR. McDANIEL: Just a minute. The proper way

to do it on a deposition is for Mr. Goodwill to read the

question and the answer and ask if she made that re-

sponse to that question. I’d like to have the page num-

ber when you do it.

THE COURT: For impeachment purposes it is prop-

er, but I think this particular question was. proper. I’m

not sure it’s impeachment. I want to know what con-

flicting statements he has got.

MR. GOODWILL: I am not.

POPOPO >

THE COURT: You see what I mean? The only pur-

pose of putting that in is if there is contradictory testi-

mony today.

MR. GOODWILL: Yes, sir.

THE COURT: Otherwise she’s just testifying to

what she said, the same thing twice. I will allow your

questions. Go ahead, sir.

Q. All right, sir. Do you recall me asking you on

that at that time how tall he was?

A. Yes, sir, I do.

Q. Do you recall your answer?

A. No, sir, not precisely.

THE COURT: Now, sir, you may read your question

= ~~ answer.

- GOODWILL: Thank you. That’s what I in-

tended to do. Again, we are still on Page 3.

_ came sega Okay.

- “Question: From his physical a P

he light or dark-skinned? #3 snail a

“Answer: Dark-skinned.

“Question : Okay.

_ “Answer: And I will say somewhere around five

eight, maybe six foot tall; precisely I can’t say.” All

right, this is different than what you told Officer Neil

isn’t it?

ry Yes, sir.

- Did your memory get better or what ac t

the difference in the height description? aia a

an, | Well, as I said, that night I was in a state of

Q. Wouldn’t it also be true at that time th

( at the

a of this man would have been more vivid in your

A. No, sir.

2 Okay.

- As anyone comes out of a state f i

memory gets more vivid. 7 Oe

Q. Approximately two months later, you are better

able to make a description of the m

an hour after it occurred? a

MR. McDANIEL: Your Honor, he is arguing to the

witness now.

THE COURT: Yes, sir. The objection will be sus-

tained.

Q. You were in a state of shock at the time of the

preliminary hearing?

A. I was.

Q. But you made an identification then, didn’t you?

A. I did.

Q. Now you’re telling me a minute ago that the pos-

sible change or difference in the description between

what you told Officer Neil and what you told me on

deposition was because you were in shock, is that correct?

This is understandable.

A. Right.

Q. But likewise, at the preliminary hearing, you have

also told me you were in shock.

A. Still in a state of shock, but not as much as the

night it happened. This was the day after the funeral.

Q. How many black men were in the room at the

time of the preliminary hearing?

A. I don’t recall.

Q. -Do you recall seeing anyone in that room at the

preliminary hearing other than this man right here?

A. I recall other people being there, but I can’t say

whether they were black or white.

Q. You said a few minutes ago you remembered Mr.

Mars, is that correct?

A. As I said, I remember faces, but not names.

Q. The assistant State attorney.

A. Yes.

Q. Perhaps this is the way he was introduced to him.

Do you remember him?

A. Yes, sir.

Q. Do you feel you could identify him from the pre-

liminary hearing?

A. I think so.

Q. What about Mr. Hill?

A. Yes, sir.

Q. Your sister was with you at the preliminary

hearing too?

A. My sister was with me.

Q. But you don’t know whether or not there was an-

ee eg — present in the room at the time you

made the identification at the preliminary hearing?

A. No, sir, I don’t. ; . ’

Q. Do you remember Mr. Hill?

A. Yes, sir.

Q. The assistant public defender?

") (Nods head.)

- Do you recall there being any black man sittin

next to Mr, Hill other than this man right here? .

A. No, sir.

Q. Do you recall Mr. Mars going to anyone else in

the room, any other black man in the room, and asking

if that was the person? |

A. No, sir.

o_ = - - ge eae hearing, this man was sit-

g at the defense table with Mr, Hill, and

= ye Mars went to? Pe ae

. on’t recall him going to him.

Q. Then how did you identify him?

A. I looked at his face,

yoo? Do you remember what questions were asked of

a. If the man was in the room who killed by hus-

Q. All right. Were you on

oe. y a witness stand like you

A. I was.

Q. Is this man sitting approximately th

is now relative? 7 a Neat eet altos

A. He was sitting on the opposite si

of his attorney, pposite side of the table

Q. All right. I mean, basically, from where yo

sitting and looked out. Wasn't thi yon wae

same arrangement? " Pretty much the

A. Yes, sir.

Q. As the preliminary hearing?

Yes, sir,

Q. Do you remember seeing this man right here at

the preliminary hearing?

A. He was sitting back close to where my sister sat.

Q. Okay. Now, we have gone through about five or

six people that you do remember there, and you do re-

member this man being there. But, again, I ask you,

do you remember whether or not there was another

black person in that room?

A. No, sir.

MR. MeDANIEL: Your Honor, she has answered

that question at least three times.

THE COURT: Yes, sir. Objection will be sustained

as being repetitious,

Q. Did Mr. Mars in any way make any indication to

this man as to whether this man was the one that

killed your husband?

A. I don’t recall him making an indication of it.

Q. Do you recall Mr, Mars asking you the question

at the preliminary hearing—

MR. McDANIEL: Give the page number.

MR, GOODWILL: Page 7.

Q. “Can you see this man sitting here?” Do you re-

call that question being asked?

A. No, I don’t.

. You don’t recall him asking you that question?

A. No, I don’t.

Q. Page 8 Do you recall him asking you the follow-

ing question and your giving the following answers?

“Question: Is this the man that shot your husband?

“Answer: Yes, sir.”

A. Yes, sir, I do.

Q. Who was he referring to when he said do you see

this man sitting here or is this the man that shot your

husband?

A. He was referring to the man sitting right there.

Q. How did he refer to him? Did he go up and put

his hand on his shoulder and say this man?

A. I don’t recall it.

Q. But he didn’t indicate anyone else in that court-

room other than this man right here, did he?

A. I don’t recall him pointing to him.

ee ee ee

Q. But he did in some way through the record of

what was asked in the >

b= wth cor answers that were given indicate

A. ‘woe say yes,

mT wu coma alt we 8

v4 When om oat an to clos : ete

door. ' : se the sliding loading

. Which h ,

Rak x ime T woul ays hana ng

had hold of this arm. g out this way, he

Q. All right. So one door is al

, 40> s already closed?

Q. We're talking about anoth

, Da ot other loading door?

Q. We're not talking about the glass d

talking about the loading door. g oor, but we're

A. Right.

Re - He reached out with the hand that he had the gun

A. And pulled it down with th

Q. With the gun? —T

A. With the gun,

2 - that’s the first time you knew he had a gun?

PR. Fy did that door make any noise when it came

A. No, sir.

Q. None at all?

A. No, sir.

Q. Silent?

A. Silent.

Q. Was he holding you in such

you could not pull away from him? waorne grip thet

A. Not ice-]i :

nen ot a vice-like grip, no. He had hold of my arm

And at the time you were at the metal loading

door, couldn’t you have pulled away from him?

A. It’s possible, but he told me to do as he says and

he wouldn’t hurt me. He says, “Do as I say and you

won’t get hurt.”

Q. You admitted this was a hand gun opposed to a

rifle?

A. Yes, sir.

Q. Would you show me again about how big it was?

A. Maybe about like that.

Q. It wasn’t a big gun or rifle.

A. No.

. Okay. Except for the statement to you that “Do

as I say and you won’t get hurt,” were there any other

threats of any kind made to you? In other words, did

he threaten to kill you?

A. He did not.

- After he had shot your husband, did he threaten

to kill you?

A. No, sir.

Q. All right. So we have got both loading doors

closed?

A. (Nods head.)

Q. One that you know was closed by him and one

you don’t know who closed.

A. I don’t know.

Q. Were—but it was closed sometime after he left

the store?

A. Between the time he went out and then come back

in.

Q. Okay. What about the sliding door?

A. He asked for the key to lock it. I said, “There

is no key to that door. I have to lock it with a stick.”

The lock was broke on it.

. And then what occurred?

A. He told me to fasten it. I picked up the stick

to fasten it and he said, “Don’t try anything funny.”

_ Did he have hold of your arm the whole time you

were picking up the stick?

A. No, sir, he didn’t.

He let go of you?

He let go of me while I did that.

The sliding glass door was open?

- It wasn’t open, it was shut. But I had to open

it a little bit to put the stick on the bolt there to

fasten it.

Q. Okay. Do you know if he touched that sliding

glass door at any time?

A. I don’t know,

Q. Did he try to see if he could lock it or anything?

A. No, sir.

MR. GOODWILL: Page 10 of the deposition, Mr. Me-

Daniel,

Q. Mrs. Turman, do you recall me asking you the

question on the deposition “How long was he in the store

before he left the first time?” And your answer: “I

have no idea; maybe ten or fifteen minutes,”

A. Yes, sir.

Q. Is that—to that question, would that be your

answer today?

I say ten, fifteen,

Q. Before he left the first time?

A. No, I was combining the whole.

Q. All right. Again, the question was, “How long

was he in the store before he left the first time?

aon I have no idea; maybe ten or fifteen min-

utes,

. A. Iam sorry. I must have misunderstood your ques-

tion that day; but I thought you meant the entire time.

Q. Okay. Do you know what color the gun was?

A. It was dark. It was not a shiny gun, that’s all

I can say. I don’t know guns. I don’t know one gun

from another, I don’t know calibers or anything, .

MR. GOODWILL: Page 11, Mr. McDaniel.

Q. Do you recall me asking you the question “Can

you describe the gun to me?”

Answer: “No, sir, I can’t.”

) permanant er color was it?”

nswer: “TI don’t know, I was too scare ice,”

A. Yes, sir, I do recall that question, roves

PO Po

. And that answer?

that answer.

o well i. the obvious question is, do you know

th n?

OT MCDANIEL: Your Honor, that is not impeach-

ment. She testified the gun was dark. She has not od

fied to the color of the gun today. That's not a

ment of her on that date, She merely told in her —

ment she didn’t know what color the gun was. She

testified today it was dark, It’s not something he’s en-

ch on that statement,

MEEHE COURT: The Jury heard the testimony. I will

d. Go ahead, sir. i

-_ All right, After you closed the door, the sliding

glass door, you all proceeded to the back of the store?

A. I told him while we were still at the door he

could have the whole store, just please leave me alone.

Q. Did you tell Officer Neil that?

A. 1 don’t recall.

Q. Do you recall telling me that?

: lon’t recall.

*) While you were closing the door, he was behind

you?

A. No, sir, he was in front me.

Q. In front of you?

A. Yes, sir. .

Q. You could see him?

. (Nods head.) .

Q What was the lighting conditions at that particu-

point in the store?

~ front of that door for a cloudy day, it was

ht. I did have one light turned on up there.

“" ie. as you were going to the back of the room

or—excuse me—to the back of the store, where was

this man?

He was in back of me.

Did he still have a hold of you?

He did,

Which hand, if you know?

I don’t recall,

>OoP>o>

Q. How did he have you? Did he have you by the

right arm or the left arm?

I can’t recall going back through there.

All you do know is that he did have a hold of you?

And the gun in my back or between by shoulders,

= right. You are assuming that it was a gun.

es,

. Mrs, Turman, your husband came through the back

door in—or did he come in the back door?

A. He did not come in the door. He started in. He

opened the door and started in, He did not get in.

Q. He opened the door?

A. He opened the door.

Q. All right. Was the shot instantaneously at that

point?

A. It was.

Q. Did you hear your husband coming?

A. I did not hear him coming. I saw him opening

the door and I screamed “No, Jim, don’t come in.”

©Porop>

Q. That’s the first that you saw him?

A. Yes.

Q. And this man shot him instantaneously?

A. Instantaneously.

Q. Over your shoulder?

A. Over my right shoulder,

Q. At any time, did you observe this individual with

gloves on?

A. No, sir.

on And after he shot, did you see Phillip actually get

sho

A. I did.

Q. You saw something to indicate that he was in fact

hit?

A. I did, in the face.

Q. Okay. At that point, did this individual leave?

A. He run across the yard.

Q. And that day you never saw him again?

A. I never.

Q. Okay. You know how he left?

A. Ido not,

Q. [low did you get the money?

A. He told me to open the cash register and I did.

Q. Did he have a hold of you at this point?

A. No, sir.

Q. Where were his hands?

A. He was standing there with the gun pointing to-

ward me and told me to open it.

Q. Was this on the counter, the cash register on the

counter or anything?

A. No, sir, it wasn’t. I had a dresser base there

which I had my cash register sitting on.

Q. Did you see how this man left the scene?

A. I did not.

Q. Did you see any cars parked around your store?

A. No, sir.

Q. Although you haven’t read any papers or looked at

any papers, you did discuss newspaper articles with

other people, didn’t you?

A. No, sir.

Q. Didn’t you discuss it with a friend of yours named

Mrs. Poe?

A. She may—she just mentioned it to me, and I told

her that I had not looked at a paper, that I couldn’t read

it.

Q. Did she mention that she had seen a picture of

the man that they had caught?

A. She did.

Q. Okay. But you did not look at the paper?

A. I did not look at the paper.

Q. You did not see the person?

A. I did not look at the paper.

MR. GOODWILL: Excuse me just a minute, Your

Honor.

THE COURT: Yes, sir.

Q. This may be repetitious. Did I ask you if you

saw any cars parked around?

A. You asked me.

Q. Idid? What was your answer to that?

A. I did not.

°. Do you recall telling anyone that you saw a black

car

A. No, sir, I don’t.

MR. GOODWILL: Page 4 of Officer Neil’s state-

ment.

MR. McDANIEL: All right.

Q. Do you recall the question being asked to you

by Officer Neil, the officer that talked to you immedi-

ately after this occurred, “Did you see a car out front

or anything?”

Answer: “I saw a car. I don’t know if it was the

one he was in or not, but it was out there at the corner

of the building.”

Question: “Uh-huh.”

Answer: “The next time I looked, it was gone. That’s

all I know.”

Question: “Can you describe this car to me in any

way?”

Answer: “No, sir.”

Question: “You don’t?”

Answer: “I can’t.”

Question: “Uh-huh. Don’t know what color it was?”

Answer: “No sir.”

Question: “Uh-huh.”

Answer: “I thought it was a black, I’m not sure.”

Question: “Dark color?”

Answer: “It’s a dark color, that’s all I know.”

A. I don’t recall that.

Q. You don’t recall saying that to Officer Neil?

A. Ido not recall that, no, sir.

Q. At this time do you recall whether or not you

Saw a car?

A. Ido not recall seeing a car.

MR. GOODWILL: May I have a moment, Your

Honor?

THE COURT: Yes, sir.

MR. GOODWILL: I have no further questions of

Mrs. Turman. I appreciate your answers. Thank you,

ma’am.

THE COURT: All right, Mr. McDaniel, do you have

redirect?

MR. McDANIEL: Yes, sir. I’d like to have a recess.

THE COURT: All right, we will be in recess for a

few minutes.

(There was a brief recess and Court reconvened

with same appearances. )

REDIRECT EXAMINATION

BY MR. McDANIEL:

_.. This morning you told me that Mr. Darden

has grown his goatee.

A. Yes, sir.

Q. Allowed his hair to grow some since September the

8th?

A. Yes, sir.

Q. Would you look at his physical build and tell me

whether there is any difference in it at this time.

A. Sitting down I can’t really tell, but I can see the

face.

“THE COURT: Would the Defendant stand up?

(The Defendant stood. )

A. Yes, sir, he has lost some weight.

THE COURT: You may sit down.

(The Defendant was seated. )

Q. He has lost some weight?

A. Yes, sir.

Q. Mrs. Turman, the man—the pants he had on

that night, were they as baggy as the pants he has on

today?

a I don’t know—no, sir, I believe they were more

tight-fitting.

Q. You told Mr. Goodwill that you had your hands

over your face, is that correct?

A. Part of the time.

Q. Did you have your hands over your face when

you were showing Mr. Darden the furniture in the

store?

A. No, sir.

Q. Did you have your hands over your face when

he had you backed up to the refrigerator with the gun

when he took the money out of the cash register?

A. No, sir.

Q. Did you have your hands over your face when

you saw Mr. Darden shoot the boy in the face?

A. That is one time—after he had shot him—that

I did throw my hands over my face.

Q. All right. In the little room four or five feet

from your husband’s body, when Mr. Darden was at-

tempting to force you to have perverted act, or com-

mit a perversion or perverted act, did you have your

hands over your face at that time?

A. No, sir.

Q. At the preliminary hearing—Mrs. Turman, let

me ask you this question: Mrs. Turman, is this the

man here that murdered your husband on September

the 8th, 1973?

Yes, sir.

This is the man here?

Yes, sir.

Did I point to somebody when I said that?

You did not.

You were questioned by Mr. Goodwill, do you re-

call ‘whether Mr. Mars did as Mr. Goodwill did, pointed

at him? Do you recall Mr. Mars doing that?

A. No, sir.

Q. Do you recall Mr. Mars going over, putting his

hand on Mr. Darden?

A. No, sir.

. Was this in a courtroom, this preliminary hearing

was being held in?

A. Yes, sir, a small one.

Q. A small courtroom?

Q. Was there a Judge there?

A. Yes, sir.

O>O>re>

Q. Were there other people around the Judge?

A. I believe there was a clerk sitting down in front

of me.

Q. Were there other people in the room?

A. There were a few other people in the room.

All right. You don’t recall whether there was

another black man at that time or not?

A. Ido not.

Q. At what point in time in that room did you

recognize this Defendant as being the one that mur-

dered your husband?

A. When I came in, I saw his face.

Q. Were you on the stand at that time?

A. Iwas on my way up to the stand.

Q. Had anyone questioned you at that time?

A. No, sir.

Q. Had Mr. Mars said anything to you at that

time?

A. No, sir.

Q. Had anyone said anything to you at that time?

A. Nobody.

Q. You're telling the Jury that you recognized that

man as being the one who murdered your husband be-

fore you ever reached the stand?

A. Yes, sir.

Q. Mrs. Turman, after all of the examination this

morning and cross-examination by Mr. Goodwill, can

you look at that Defendant beyond and to the exclu-

sion of all doubt and say that he is the one that mur-

dered your husband?

A. lean.

Q. Is he the one that robbed you?

A. Yes, sir.

Q. He is the one that shot Phillip?

A. Yes, sir.

Q. Is he the one that attempted the act on you?

A. Heis.

MR. McDANIEL: No further questions.

THE COURT: Recross, Mr. Goodwill.

MR. GOODWILL: Yes, sir, just a second.

RECROSS-EXAMINATION

BY MR. GOODWILL:

Q. Mrs. Turman, just a couple of questions. At that

preliminary hearing that Mr. McDaniel and I both have

been talking about, in your mind was there any ques-

tion who Mr. Mars was referring to when he asked the

question, “Is that the man that killed your husband?”

A. No. There was no doubt in my mind.

Q. As to who he was referring to?

A. Right.

Q. Prior to that preliminary hearing, had you been

requested by any police officers or anyone from the State

Attorney’s Office to view a lineup or to take a look at

this person to see if you could identify the man?

A. I had been requested to come down the day of

the funeral. They didn’t know that was the day of the

funeral. They said that they would postpone it until

the next day, so this is when I did go down.

That was the purpose of the preliminary hearing?

Yes, sir.

But to your knowledge, you were never requested—

No, sir.

—to go down to a lineup?

No, sir.

. All right.

MR. GOODWILL: All right, no further questions.

MR. MeDANIEL: I have no further questions.

THE COURT: All right, Mrs. Turman, you may

step down.

(Witness excused. )

OPOPOPoO

- ae

(VI; 428-501]

{TESTIMONY OF PHILLIP ARNOLD]

PHILLIP ARNOLD, having been produced as a wit-

ness on behalf of the State, and having been first duly

sworn, testified as follows:

DIRECT EXAMINATION

BY MR. MeDANIEL:

o * * *

Q. Did something happen on that evening, that day

{September 8, 1973]?

A. Yes, sir.

Q. Would you tell the Jury what it was?

A. That was the day that Mr. Turman was killed

that I was shot.

Q. Do you recall what day of the week it was?

A. It was on a Saturday.

Q. Tell the Jury what you remember happening.

A. Well, I was sitting out on the front porch of

my house, and my mother come out and told me that

my dad—something had happened to Mr. Turman. She

didn’t say what it was, and for me to go help Mrs.

Turman. So I run across, out the front door, run across

my sister’s front yard, down to the front drive. And

then I run down the dirt road to the back. And then—-

Q. All right. Would you step down and show the

Jury your house the best you can.

(Witness left the stand.)

A. Okay. My house was right here. My sister was

right here. And I run across her front yard to the

drive here, and then I run down the dirt road iike

this and over to the back of the store.

Q. All right. How far would you say down the

dirt road we’re talking about?

A. I'd say approximately a hundred and fifty to

200 feet.

Q. Allright. About what time was this?

A. It was around six o’clock.

(The witness returned to the witness stand. )

P.M. or A.M.?

Well—

Afternoon or morning?

Afternoon,

All right. What was the weather condition?

It was still daylight, but it was a little cloudy.

. What did you find—what happened when you

arrived at the back door?

A. Well, when I got to the back door, Mr. Turman

was laying there with his feet partially up in the store,

and his body was laying down in the water on the

ground, and his head was bleeding real bad and all.

And so then I reached—

Q. You say his head was bleeding real bad? Could

you tell where it was bleeding from?

A. Right on his forehead.

Q. Could you tell the Jury—I know you are point-

ing, but we have a court reporter, and we have no way

to indicate. You will have to tell me where you are

pointing.

A. Right above the—kind of close to the right eye

up on the forehead.

Q. All right. Was he face down or face up?

A. He was face up.

Q. You said his feet were inside the store?

A. Yes, sir, one foot was laying in the door and

the other was up against the wall.

Inside wall or outside wall?

Outside wall.

What was the position of the door?

It was closed against his foot.

Is there a screen door?

No, sir.

Just the one door?

Yes, sir.

O>O>rore

PO PO PL PS

Q. All right, what happened then?

A. Well, I reached over Mr. Turman’s body and

pushed the door open.

Q. Were you standing at that time?

A. Yes, sir.

Q. All right, then what happened?

A. Well, I looked in the store, and Mrs. Turman and

this man were standing about middle-ways of the store,

more toward the front. And so I asked him to come help

me get him up out of the water.

Q. Did either Mrs. Turman or this man say any-

thing to you at that time?

A. Well, first, Mrs. Turman waved her hand at me

and told me, “Phillip, go back.”

Q. What do you mean, waved her hand?

A. Just like that, said, “Phillip, go back,” like that,

but I didn’t know what she was talking about, so I didn’t

do nothing. So then I asked him to come help me get him

out of the water.

Q. Did he respond to you?

A. He said yes or something to the effect, yes, sure,

buddy, I will help you, like that.

Q. All right.

A. So then I squatted back down. I was squatted

down over Mr. Turman. And then I looked back up, and

the guy was standing there in front of me. And then I

looked down to his hand, and he had a gun. And before

I could say anything, he started shooting me.

Q. Let’s go back now, son. You say you were kneeled

down over Mr. Turman?

A. Yes, sir.

Q. You say kneeled, or how were you physically?

Come down and show the Jury how you were over the

man, over the body.

(Witness left the witness stand.)

A. Okay, I was squatted down just like this over Mr.

Turman. His feet were up here, and his head was right

here. The door was there, and I was squatted down just

like this.

Q. All right. I want you to stay there.

A. Okay.

Q. All right, you said that—did you squat down be-

fore you pushed the door open at all?

A. Just for a second.

Q. And then you said you stood up and pushed the

door open?

A. Yes.

Q. And that’s when you saw Mrs. Turman and the

man inside the store?

A. Yes, sir.

. And she told you to go back?

A. She said, “Phillip, go back.”

Q. And you asked him to help you do what?

A. Get him up out of the water. His head and all

was laying in the water.

Q. He said sure, buddy, I'll help you?

A. Yes, sir.

Q. You did what then at that point?

A. Well, I looked back down at Mr. Turman to see

if he was breathing or anything for a minute. And when

I looked back up—

Q. How were you when you looked at him to see if

he was breathing, like you are now?

A. Yes, sir. I never got out of this position right

here from looking up. I looked back down like that.

Q. Then what happened?

A. Then when I looked back up in the door, he was

standing in the door; and when I looked down to his

hand, and he a gun.

Where did you look first?

Up at his face.

And then you looked down?

Yes, sir.

You saw the gun?

Yes, sir.

What was the first thing happened then?

He pulled the trigger.

And what happened?

It clicked.

>POP>OPOPOro

Q. What did you do then?

A. At first, my mind just went blank and I wouldn’t,

I couldn’t think of nothing. I was going to beg him not

to shoot me, but I didn’t have time. He pulled it again

and he shot me.

All right. Where did he shoot you that time?

In the mouth.

Show the jury where he shot you in the mouth.

Right here.

Did that bullet come out?

Not then it didn’t; the took it out in the hospital.

Did they take anything else out at that time?

They took a piece of bone and teeth out.

All right. Then what happened?

Well, after he shot me in the mouth the first time,

I started to start running and he shot me in the neck.

Q. Did you get all the way up before he shot you in

the neck?

A. No, sir.

Q. Show approximately how far you think you got

up?

A. Well, I can’t be sure exactly. I was approximately

something like this, partially standing up.

Q. And he shot you in the neck.

A. Yes, sir.

Q. What happened to that bullet?

A. It is still in there.

Q. All right. Show the jury where the second bullet

went?

A. It’s right there. You can see the scar.

Q. Turn around and show the jury where all of the

jury can see.

All right, what happened?

A. Then as I started to run across the yard I was

running at an angle from the door, and he shot me in

the side, and it come out at my shoulder.

Q. Do you know whether or not this man was chasing

you at this time or whether he shot you from the door?

A. No, sir, I don’t know.

POPO PO PO PO

Q. Did you ever look back?

A. No, sir.

Q. Phillip, when you were there at the back door

looking at this man with a gun in your face, can you

describe the lighting conditions? You have already de-

scribed them outside, inside now.

A. Well, inside the door, just inside the door they

have a light bulb and it was on. Then over the desk that

stays right near the front part, there is a fluorescent light

which stays on, and then there is one half way down the

hall way which also stays lit.

Q. Did you have any problem seeing the man?

A. No, sir.

Q. All right. Can you describe him for the jury at

that time?

A. Well, he was a heavy set man, black, he was, his

hair was neat and short, had a long face.

Q. Did you notice his clothing?

A. Yes, he had a dark colored pants and he had on

a short sleeve knit sport shirt, it was a dull light color

and had a ring around the collar on the neck of it.

Q. Can you describe the gun that was in your face?

A. The only thing I noticed about it was, it was just

a small revolver.

Q. Could you tell what color it was?

A. No, sir.

Q. Could you tell whether it was dark, silver or dark?

A. No, sir.

Q. Are you sure it was a revolver?

A. Yes, sir.

Q. All right. Phillip, can you at this time point to

the man who shot you?

THE COURT: Wait just a minute if you would. At

this point in order to properly hear objection and perhaps

= some testimony, I will excuse the jury for a few

minutes.

Will everyone stand while the jury leaves the court-

room.

(The jury left the courtroom.)

(JURY OUT)

THE COURT: Will every one be seated.

Mr. Goodwill, do you have objection you wish to make,

if not specific questions at least. I assume, sir, you are

going into an identification procedure.

MR. McDANIEL: You may assume, yes, sir.

THE COURT: Yes, sir.

MR. GOODWILL: Yes, sir, some of the argument

will be handled by Mr. Maloney, my co-counsel.

The Court file reflects that on September the 10th,

1973, at First Appearance Hearing held in Polk County,

that the defendant was determined to be indigent and

the Public Defender was appointed to represent him at

that time.

Subsequent to that time—

THE COURT: Not the Preliminary Hearing this was

a First Appearance?

MR. GOODWILL: A First Appearance Hearing, the

man was already in custody, had been arrested and

charged and was at First Appearance Hearing.

THE COURT: Mr. Williams, is there a First Ap-

pearance Hearing Order in the file, sir?

CLERK: Yes, sir.

THE COURT: What was the date of it?

CLERK: 9-10-73, sir.

THE COURT: All right, sir.

MR. GOODWILL: All right, sir, on the 11th—

CLERK: It was the order of 9-9-, but it was held

on 9-10, sir.

THE COURT: The Public Defender was appointed

to represent him?

LERK: Yes.

THE COURT: Carry on.

MR. GOODWILL: On the 11th of September, accord-

ing to Mr. Arnold’s deposition and information which

we have gathered from other sources, a series of six pic-

tures was shown to this young man.

THE COURT: All right, sir, in order that I can have

the proper situation I wish either you or counsel for the

State, one or the other, would interrogate.

MR. GOODWILL: All right. Would you prefer it in

that manner?

THE COURT: Yes, sir.

EXAMINATION

BY MR. GOODWILL:

Q. Phillip, while you were in the Lakeland hospital

did any officers of the Polk County Sheriff’s Department

come to see you?

A. Yes, sir.

Q. Do you remember when that was?

A. It was about the second day I was in there.

Q. Do you remember the date?

A. No, sir, I don’t.

Q. At that time did they show you a series of pic-

tures?

A. Yes, sir.

Q. Do you remember the names of the officers that

were present?

A. No, sir.

Q. At that time were you able to speak?

A. A little.

Q. In response to—Did they ask you any questions?

A. Yes, sir.

Q. All right. Did they ask you to answer their ques-

tions verbally or write the answers out?

A. I answered most of them verbally.

Q. Did you write your answers out?

A. Yes, sir.

Q. So you were able to speak?

A. Yes, sir.

Q. At that time?

A. (Nods head.)

Q. Of the photographs which you were shown, first

of all, were they all colored, were they all black?

A. Yes, sir.

. All right. In all other respects—

THE COURT: The pictures themselves.

MR. GOODWILL: The pictures.

THE COURT: Were they black and white or were

they colored pictures, sir?

A. They were black and white.

Q. All right. What were these pictures of, just in

general?

A. Men.

Q. Just men?

A. (Nods head.)

. Did they all look similar?

A. Not all of them.

Q. Were you able to disregard any of the pictures

immediately?

A. Yes, sir.

Q. Did you identify a pictures, of the six, what did

the officers tell you the purpose of looking at the pictures

was?

A. To identify the person that shot me and Mr. Tur-

man.

Q. Did they say if you could or to identify from these

pictures the one that did it?

A. They asked me if any of the people in the photo-

< e looked like him.

OK. Of the six did any appear to look like him?

Yes.

Did more than one appear to look like him?

Not exactly.

Was there a similarity?

It was a slight similarity, just slight.

All right.

MR. GOODWILL: Your Honor, I am not sure on

this particular procedure, I am in a cross-examination

situation or not; I feel that I am.

THE COURT: Yes, sir.

MR. GOODWILL: I would want to lead.

Bere Po Pe

THE COURT: What I want to do is do this as expe-

ditiously as possible and get to the facts.

MR. GOODWILL: All right, sir, that’s why I would

like to go ahead and lead this witness.

Q. Isn’t it true that you pictures and said that both

of these men looked sort of like him?

A. Yes, sir.

And isn’t it true that you just automatically

excluded four of them right away?

A. Yes, sir.

Q. And isn’t it true that the reason you excluded

him you—

THE COURT: Let him give his own answers.

Why did you discount the other four?

” MR. GOODWILL: That’s what I was about to ask

im.

THE COURT: You were about to tell him and let

him agree to it. I would rather have him tell.

Q. Why did you discount the other four?

A. Well, they were either too young or just real small,

they just didn’t fit the appearance at all.

Q. They just didn’t look like him at all?

A. No, sir.

Q. So out of the total of six there were only two of

them that really were even a close portrayal of the

man you identified. Is that correct?

A. Yes, sir.

Q. Did you notice on the pictures whether or not

there were any names?

A. No, sir, there were no names.

Q. There were no names on the photographs?

A. No, sir.

Q. You ultimately identified a photograph of Mr.

Darden. Is that correct?

A. Yes, sir.

Q. And do you recall whether or not his name was on

that photograph?

No, sir, it wasn’t on the photograph.

Q. You are absolutely positive of this?

A. Yes, sir.

Q. Was there a date on the photographs?

I am talking about, I assume this was a picture of

the man standing face forward and from the side; is

this correct?

A. Just face forward.

Q. Just face forward?

A. Yes, sir. ;

Q. There was no picture of him standing from the

side?

A. No, sir.

Q. All right. In the face forward was there anything

other than his clothes in front of him in the picture?

A. There was a plate that identified as the Polk

County Sheriff’s Department and then it had numbers

under it.

Q. All right. Do you remember the number 9973?

A. No, sir.

. Do you remember being a small white tag on the

left side of the photograph of Mr. Darden that said

Darden?

A. No, sir.

Q. I am going to hand you six photographs— '

THE COURT: Would you mark them for identifica-

tion, please, Todd?

MR. GOODWILL: Yes, sir.

{Photographs were marked for identification |

Q. While they are marking the pictures, do you re-

member what day of the week the officers came to see

ou?

: A. No, sir, I couldn’t say for sure.

. Do you recall telling me on deposition that it was

about the third day after I was in there, second or third

day after I was in there?

A. Yes, sir.

Q. Do you remember whether it was Monday or

Tuesday?

A. No, sir.

Q. Got shot on Saturday. Is that correct?

A. Yes, sir.

7 een.

Q. All right. And what were y i

a you counting as the

A. Well, I was counting Sunday as the first da

, ) y-

Q. OK. So it was either Monday or Tuesday that

they came to see you?

A. Yes, sir.

Q. I show you six photographs marked Defendant’s

Exhibits number one for identification, and ask you if

those were the six photographs that were shown to

= the officers that visited you in the hospital that

A. They appear to be, yes, sir.

x bo bP ny 7 me a more definite answer.

. Me ; jection. He said th

~ ti. the best he can do. =i: atone

OURT: Yes, sir. I think he is entitled to

say that’s the best he can do. Objecti ri -

= Bay ph de ) jection will be over

a ~ Is that the best you can do is say they appear to

A. Yes, sir, I couldn’t say for sure.

Q. You can’t say for sure?

A. (Shakes head.)

; Q. I show you a photograph marked Defendant’s Ex-

hibit Number six for identification and ask you if that

photograph was shown to you?

ry Yes, sir.

. What does that photograph depict?

A. That’s the man that shot me. .

Q. OK. Is there a white tag on the front of his shirt?

ry Yes, sir.

. What does that white tag say?

A. Darden. wares

Q. Was that on there at the time the pict

= P you in the hospital? Pee

. on’t really know. I didn’t see i

“OD to it if it was. sia adhd

. Did you exclude any of those phot

( ographs as not

being the person that shot you on the basi

not having a moustache? ee

A. No, sir, I don’t believe so.

Q. Do you recall my taking your deposition in my of-

fice in Bartow, sir?

A. Yes, sir.

. Do you recall the following question and answer?

MR. WHITE: Mr. Goodwill, will you tell us what

page you are on?

MR. GOODWILL: Yes, sir, page 18.

THE COURT: Are you going to attempt to impeach

him at this state of the proceedings?

MR. GOODWILL: On the basis of these pictures.

MR. McDANIEL: It’s not the time for impeachment

purposes, Your Honor.

THE COURT: No, sir.

MR. GOODWILL: As identification of the pictures,

to show that he did exclude certain pictures on certain

basis because they did not fit the description he had

given the police earlier.

MR. McDANIEL: Your Honor, I don’t think the pur-

pose of this examination is to impress the Court. The

Court needs the facts surrounding the—

MR. GOODWILL: Mr. McDaniel, I am not trying to

impress the Court.

THE COURT: All right, sir, if he has at some

previous time given you a statement more detailed or

different from this, for the purpose of refreshing his

memory, I will allow you to ask him. Not to impeach,

but for memory refreshment.

All right.

Q. Do you remember me asking you the following

question: “Were there any other pictures that you saw

of those six that looked similar to the man that was

there that day?

“Answer: There was one that looked a little bit like

him, not much, but he had a moustache, had a small

moustache and he wasn’t as heavy.”

Do you recall that?

A. Yes, sir.

Q. So did you exclude any of these photographs, these

six that I have just showed you, on the basis that the

individual depicted in the photograph had a moustache?

A. Not strictly for that reason, no, sir.

Q. Can you show which of these photographs you ex-

cluded?

I believe it was this one.

You excluded or included?

I believe that’s the one I excluded.

You excluded this one? As not being?

Yes, sir.

Did you exclude any more?

All of them except this one.

MR. McDANIEL: Which one are you talking about

this one?

MR. GOODWILL: He is speaking about Defendant’s

Exhibit Number 6 for identification.

MR. McDANIEL: Let me see the front of that one.

Thank you.

Originally, didn’t you narrow it down to two photo-

graphs and then narrow it down to two?

A. I had it down to two.

Q. All right. At that point can you show me which

four you excluded?

A. Yes, sir, it was this four here.

Q. These four were excluded originally?

A. Yes, sir.

. OK.

MR. GOODWILL: For the record the witness iden-

tified Defendant’s Exhibits for identification numbers

1, 2, 3, and 4.

Q. Why did you exclude them?

A. The first four I excluded for the fact they didn’t

look anything at all like him. They just didn’t fit the

description.

Q. At all?

A. No, sir.

THE COURT: I think he has been over all of this

now, how he worked on the pictures.

Q. After you got shot and before the police officers

arrived, did you read any of the newspaper accounts

of what had happened?

A. No, sir.

Q. Again on deposition do you recall my asking you

the question, pages 21, Mr. White, “after that Saturday

POPO PO >

=—s

did you read any of the newspapers on Sunday or Mon-

day following the crime?”

“Answer: Yes, sir.”

“Did you read about the crime?”

“Answer: Yes, sir.”

“Question: Did you read that they had arrested some-

body named Willie Darden?”

“Answer: I read that they had a suspect in custody,

I am not sure if that gave his name or not.”

Do you recall that series of questions and answers?

A. I don’t recall the question about, I recall reading

about the shooting itself, but nothing about any identi-

fication or such as that.

Q. You don’t recall this series of questions and an-

swers?

A. Yes, sir.

THE COURT: He remembers part of them, but not

all of them.

A. Yes, sir.

THE COURT: Which is it, son, do you remember

whether or not you did read the newspapers between

Saturday night and the time they came and showed you

the photographs or not?

A. I believe I did read about the shooting, but I

didn’t read anything about a suspect or somebody was

picked up for that.

THE COURT: Did you see any pictures in the news-

paper?

A. No, sir.

THE COURT: Go ahead, sir.

Q. Then why did you give me the answer that I read

that they had a suspect in custody?

MR. McDANIEL: That’s argumentative.

MR. GOODWILL: I am only trying to clarify.

THE COURT: Go ahead. I will allow it. Go ahead.

Q. Why did you give the answer: “I read that they

had a suspect in custody, I am not sure if that gave

his name or not.”?

A. Well, they said they had a suspect, but it didn’t

show any pictures to say who it was, nothing to identify

him by.

Q. That you recall at the time you gave this deposi-

tion.

A. Yes, sir. oa

Q. Is it possible that the articles did give his name

or give a name?

A. No, sir.

. What was your physical condition at the time

these officers—First of all, what time did the officers

come?

A. It was in the morning.

Q. You are absolutely positive of this?

A. Yes, sir.

Q. Could it have been in the afternoon?

A. No, sir.

Q. What was your physical condition at the time

that they came?

A. I don’t know what you mean by that.

Q. Well, number one, you were in bed?

A. Yes, sir.

Q. All right. Was your mouth wired up?

A. No, sir.

Q. Or your face, did you have any wiring?

A. They didn’t wire my mouth up until toward the

end of the week.

Q. Towards the end of the week?

A. Yes, sir.

Q. Were you in any pain?

A. Not unless I tried to move.

Q. Were you in any pain if you tried to move your

mouth?

A. No, sir, just stiff.

Q. It was just stiff?

A. Yes, sir.

Q. Do you know if you were on any type of medica-

tion?

A. No, sir.

. You don’t know of your weren’t?

A. I don’t know for sure.

MR. GOODWILL: One moment, Your Honor.

THE COURT: All right, sir.

Phillip, did you positively identify the man in that

picture at that time as being the man who shot you?

A. In the hospital, yes, sir.

THE COURT: Did you positively say, “That’s the

one who did it’?

A. Yes, sir.

THE COURT: The picture of him.

A. Yes, sir.

THE COURT: Did any of the deputy sheriffs—how

many was there in there with you?

A. When I was in the hospital there was two.

THE COURT: All right, sir.

Q. Phillip, didn’t they come to see you at five o’clock

in the afternoon, on the afternoon of the 11th of Sep-

tember?

A. I don’t believe so, no, sir.

Q. They came in the morning?

A. I believe so.

THE COURT: Do you remember what conversations

you had with the deputies at the time they showed you

the pictures?

A. They just asked me if I could identify him.

THE COURT: Did they tell you anything about any

of the pictures?

A. No, sir, didn’t tell me nothing about the pictures

at all. They just showed them to me and asked me if

any of them looked like the man.

THE COURT: Did they tell you where the pictures

came from?

A. No, sir.

THE COURT: Did they tell you they had anybody

under arrest for it?

A. No, sir.

THE COURT: Did you know they had a man under

arrest at that time?

A. I may have, but I couldn’t say for sure.

THE COURT: Had you talked to your parents be-

fore they came in there about the shooting?

A. Yes, sir.

THE COURT: Had they told you anything about

what was going on?

A. No, sir, they didn’t know nothing either.

THE COURT: And you didn’t know, you strictly

didn’t know if they had arrested any one for this crime

or not at this time?

A. No, sir.

Q. Didn’t you say several things on that deposition,

such as you didn’t pay much attention to most of them

because they didn’t look anything like him.

A. Yes, sir.

Q. Did you say that?

A. Yes, sir.

MR. McDANIEL: Objection.

. Most were small or young.

MR. McDANIEL: We have been through this five

times, Your Honor.

. In their twenties or slim.

MR. McDANIEL: Wait a minute. I object to all of

this line of questioning.

THE COURT: Yes, sir, I think it is repetitious. He

has already testified to that, Todd.

MR. GOODWILL: There were only two heavy set.

A. Well, there was one other that was heavy set, but

he was way too old.

MR. GOODWILL: Your Honor, I am not trying to be

repetitious on this point, except—

THE COURT: If there was some other purpose in

the question, I would be glad to hear it.

MR. GOODWIL|: In his deposition by repeatedly

making the remark that four of these were not in any

way like the individual that—

THE COURT: He has said that already today, I

understand it.

Four of them were either too old or too young, too

big or too small, and just nothing like it and it came

down to two that were something like him.

A. Yes, sir.

THE COURT: And from those two you selected pic-

tures of the defendant, one partially because the other

man had a moustache.

os at ee

— a ees

> And the other man was also younger, and wasn’t

as big.

Q. At the time that you were shot back near your

home isn’t it true that you gave the officers a fairly

detailed description of the man that had shot you?

A. Well, fairly, you might call it that, yes.

Q. Didn’t you describe him—page 25 of the deposi-

tion, Mr. White—as middle-aged, heavyset, black man.

MR. MeDANIEL: When are you talking about, I am

sorry.

MR. GOOOWILL: At the scene.

MR. McDANIEL: At the time he was shot.

Q. Isn’t this the description that you gave them?

A. Yes, sir.

EXAMINATION

BY MR. McDANIEL:

Q. All right, Mr. Arnold, I want you to look at this

man and tell me whether or not you can identify him

from the time you saw him when he blasted you in the

face? Can you, think back to September 8th, 1973, for-

get anything else, forget the hospital, forget everything,

September 8th and right now.

A. Yes, sir, that’s him.

Q. Do you have any doubt whatsoever in your mind?

A. No, sir, none.

Q. Did the photographs—Are you remembering the

photographs?

A. No, sir.

Q. What are you remembering?

A. The day I was shot.

Q. Are the photographs helping you in any way?

A. No, sir.

Q. Whatsoever to identify him?

A. No, sir.

Q. None whatsoever in your mind?

A. None.

Q. Has any newspaper articles—

A. No, sir.

—helping you identify this defendant?

No, sir.

Why are you identifying him?

Because that’s the man that shot me.

Because of the long cross-examination of the hos-

pital Your Honor, I’d like to ask a couple of questions,

about the hospital.

THE COURT: All right.

Q. You were shot three times in the face, in the side

on September 8th. Is that correct?

OPopo

A. Yes, sir.

Q. Around six p.m.?

A. Yes, sir.

. And you said that you didn’t have your face wired

up until the end of that week. Is that correct?

A. Yes, sir.

Q. Were you ever in the intensive care unit?

A. Yes, sir.

Q. Do you know when you were put in there?

A. No, sir, I don’t remember.

Q. Were you in the hospital for a period of time and

then the put you in there or do you know?

A. I believe they put me in the next morning.

Q. Sunday morning?

A. Yes, sir.

Q. Do you know how long you were in there?

A. Just a day or so.

Q. All right. When the two deputies came to you

with these six photographs, were they black men—

A. Yes, sir.

Q. The six photographs, were they black men?

A. Yes, sir.

MR. GOODWILL: Your Honor, that’s been an-

swered, he has identified the photographs as being the

photographs.

THE COURT: All right, sir.

Q. When those deputies came to you how long had

you been out of the intensive care unit, do you know?

A. No, sir, I don’t know.

Q. All right. You told the Court that you read some

newspaper articles but you did not see a photograph.

A. No, sir.

Q. And Mr. Goodwill ask you didn’t you read Sun-

day’s paper and Monday’s paper and Tuesday’s paper.

Do you know when you read those papers?

MR. GOODWILL: Your Honor, is he attempting to

impeach his own witness.

THE COURT: It’s proper examination. Objection

will be overruled. Go ahead.

MR. GOODWILL: I think he is attempting to im-

peach his own witness.

Q. Mr. Arnold, could you have read September 9th’s

paper, September 9th, 1973, the following Friday?

A. It’s possible.

Q. Do you know?

A. No, sir.

Q. All right. You told the Court that you did not to

your knowledge see or hear this man’s name before you

picked this photograph out of that stack of six photo-

graphs. Is that right?

A. Yes, sir.

MR. McDANIEL: I have no further questi oKS.

EXAMINATION

BY MR. GOODWILL:

Q. Mr. Arnold, do you know whether or not you were

on any type of medication or any type of sedation?

A. No, sir.

Q. You don’t know?

A. No, sir.

Q. Were you sleepy, were you tired?

A. When they first brought me in I was tired, but

after I got a night’s sleep I wasn’t, no, sir.

Q. After that you weren’t?

A. No, sir.

Q. You knew everything that was going on?

A. Yes, sir.

Q. Why couldn’t you answer Mr. McDaniel’s ques-

tions as to when certain events happened and when cer-

tain events did not happen?

A. I just didn’t pay any attention to the dates. You

know, like reading a newspaper.

THE COURT: Phillip, when was the first time

that you saw the defendant here in person after this?

A. Two days ago.

THE COURT: You did not see him any time during

the fall, the time of your deposition until up to this

week.

A. No, sir.

THE COURT: Have you seen pictures of him in the

meantime?

A. No, sir.

THE COURT: You haven’t seen pictures in the news-

paper or anywhere else?

A. No, sir.

THE COURT: No one has shown you any addi-

tional photographs other than the ones they showed you

in the hospital?

A. No, sir.

THE COURT: All right. Anything further?

MR. McDANIEL: None from the State.

THE COURT: All right. Mr. Goodwill, we have

further testimony I am going to need. Do you know

which deputy, does any deputy have a specific time or

date on which this photographic lineup was held?

MR. McDANIEL: Mr. Neil does, Your Honor.

MR. GOODWILL: September the 11th, 1973, at five

o’clock in the afternoon.

THE COURT: Let’s get him in here and put it in the

record.

Phillip, you can just step out in the hall just a minute.

We will call you back.

(Witness excused. )

DON NEIL, having been recalled as a witness, and

having been previously sworn, testified as follows:

EXAMINATION BY THE COURT

THE COURT: Were you present at a photographic

lineup on the—when it was shown to Phillip Arnold;

that is, a series of pictures including one of the De

fendant?

A. Yes, sir.

THE COURT: While he was in the hospital?

A. Yes, sir.

THE COURT: Do you remember the date of it?

A. The 11th of September.

THE COURT: Of September?

A. Yes, sir.

THE COURT: What time of day?

A. Approximately 5:00 P.M.

THE COURT: All right.

A. Mr. Arnold had just come out of intensive care.

THE COURT: All right, sir. Any other questions

of this witness?

MR. GOODWILL: Yes, sir, I have some questions.

THE COURT: All right, sir.

EXAMINATION

BY MR. GOODWILL:

Q. Mr. Neil, did you file a report, a supplemental

report, normal supplemental report of your going to

the hospital?

A. Yes, sir.

Q. Of this identification?

A. Yes, sir.

Q. Have you examined that report? Are you ac-

quainted with the contents?

A. Yes, sir. 7

Q. I’m not talking about the long one; just to re

fresh your recollection, I am talking about this par-

ticular report.

A. Yes, I believe so.

Q. Okay. Do you feel that you can testify about its

contents, based on your recollection?

A. Yes, sir.

Q. Word for word for each question generally?

A. Yes, sir.

Q. Was it in your report that Arnold was unable to

speak as his mouth was wired together as a result of

being shot, although he did write the answers to ques-

tions, “questions asked him by myself and Keeny. See

attached paper’’?

A. Yes, sir.

Q. All right. Do you have the attached paper?

A. Ican produce it. It’s in my file outside.

MR. McDANIEL: If you have a copy of it, I have

no objection to your showing it to him.

MR. GOODWILL: Well, I may want to introduce

it.

Q. Is this a true and correct copy of the written

statement?

A. It appears to be, yes, sir.

Q. Is it complete, and this is his entire written state-

ment?

A. This is the answers to the questions, yes, sir, that

we asked him at the hospital.

Q. All right. This report starts on 9/11/73, 5:00

P.M. The first thing, I assume, is an answer from

Mr. Arnold, “Both of these two look a little like him.”

What was the question, or where is the question to that

answer?

A. I’m sure it needs an explanation. Officer Keeny

and myself were there in the hospital room with him.

We handed him the photographs and told him to study

these over and be certain of his identification before

he decided. And this was basically the first question

there.

Q. But that does not appear on this report? Just

his response to that question?

A. The response to it, right.

Q. Then I assume the question was asked, did he

have a moustache, “I don’t think so.”

A. Yes, sir.

Q. At the bottom it says, “Right. What is displayed

of the photo that you choose at this point?”

A. Yes, sir.

Q. Would you tell me what appears below that?

A. Well, on each photograph there was a, I guess

you would call it a name plate with date, the agency,

and in most cases, usually a number, file number. Be-

ing as he could not speak too clearly with his mouth

wired shut, we asked him to write what was on the

face plate, whichever photograph he chose.

Q. All right, is this what he wrote?

A. Yes, sir.

Q. And what does that say?

A. Sheriff’s Department, Bartow, Florida. The num-

ber is 4644, dated 9/9/73

Q. Was that a date that appeared on the photo-

graph?

A. Yes.

Q. All right. I show you Defendant’s Exhibit No.

6 for identification, and ask you if this is the photo-

graph of Willie Jasper Darden that you showed Mr.

Arnold on that date?

A. This is not the one that I showed him. I showed

him one like this.

. Is this an exact copy that was provided to the

Public Defender’s Office at the request for discovery?

A. It appears to be, yes.

Q. All right. Now, is this the face plate that you

are talking about?

A. Yes.

Q. Is there any difference between what Phillip Ar-

nold wrote here and what appears on the face plate

here?

A. Only that the name Darden.

. All right, sir.

THE COURT: Did the photograph have Darden’s

name on it?

A. Yes, sir.

Q. How many of the other photographs, if you re-

member, had names on them?

One, possibly two others.

Can you be sure?

I can be sure of one other.

Do you remember who that was?

Myles.

>PO>O>

Q. Do you remember any other? Well, for the pur-

pose of clarification, are these the six pictures which

were shown or copies of the six pictures that were

shown?

A. Yes, sir.

Q. Except for Mr. Myles and Mr. Darden, does the

name of any one of the other persons appear on the

pictures?

A. Only on two of them, Myles and Darden.

MR. GOODWILL: For the purpose of the record,

I showed him Defendant’s Exhibit 4, No. 1 through 6

for identification.

THE COURT: Were all of these people you had

some reason to believe the man who might have done

the shooting, or just pictures you picked out?

A. No, sir, these were just photographs that I put

with the other to eliminate any direct attention to the

suspect.

THE COURT: Yes, sir.

Q. All right. Officer Neil, isn’t it true at this time

that Mr. Darden was under arrest and in the Polk

County Jail?

A. He was.

Q. At the time these pictures were shown to Phillip

Arnold?

A. Yes, sir.

Q. All right. And these pictures were shown to him

on the 11th of September, is that correct?

A. Yes, sir.

Q. Have you at any time since that date contacted

Phillip Arnold relative to having a lineup?

A. Physical lineup? No, sir.

Q. Of what are commonly referred to as just a

lineup.

A. No, sir.

Q. To your knowledge, has been out of the hospital

and has been able to attend a physical lineup if one

were arranged?

A. He could have. I wasn’t aware of the date of

his release.

_ But sometime in the last four months, a physical

lineup could have been arranged?

A. Yes, sir.

Q. And which Mr. Arnold could have appeared and—

A. Yes, sir.

Q. —done whatever he was supposed to do?

A. Yes, sir.

THE COURT: I have enough of the facts. Do you

want to argue the law?

* @ *

(VI; 482-488]

[MOTION TO SUPPRESS]

(The attorneys, the Court, the clerk, and

” . . the D

fendant and the court reporter retired to the J wor €

Chambers, at which time the following took place:)

(JURY OUT)

MR. MALONEY: Your Honor, I m

to suppress the in-court identification— Ceo

THE COURT: All right, sir.

MR. MALONEY: —whi ;

going to make. which Mr. Arnold probably is

THE COURT: i i

jy he a. Which outside the presence of the

- MALONEY: He did make it.

Lg 9 ae a a right, sir.

: : I move to suppress that o

ny grounds. I think that ie, the yr

lineup which was shown to Mr. Arnold on the 11th was

_ violation of the Sth Amendment right “to be con-

te with the witnesses against him.” Clearly Mr.

arden couldn’t have been in the hospital to confront

the witness against him, but the record will reflect that

he was represented by counsel at that time, and I be-

eet Ld A - at Pgs time to at least have his

n see the ph i

Stovall, Gilbert and Wade concerning icieameaiie “line.

up and also in line with the later Supreme Court de-

cisions being Simmons vs. United States which stated

that all due process consideration which one must give

one in a lineup must also be given in a photo lineup

, Regarding the point of having an attorney present,

think that although the United States Supreme Court

has not ruled on the decision the Federal Appellate

Courts have. I cite to the Court the United States vs

Seiler, 437 Federal Second 1305, Third District 1970,

which stated that counsel is necessary at a photo lineup

which subject or defendant is in custody. :

I think it is clear that Mr. Darden not only was in

custody, but he was accused of the crime of murder.

In 219 Southern Second 762, that is the decision of

the Third District Court of Appeals 1969, wherein the

facts being that the police took a video tape of a sus-

and then after he had been appointed counsel

showed his viedo tape to the victim of a robbery. The

subsequent conviction of the defendant was reversed, the

Court holding, in essence, that we believe that under

the state of his record the defendant had a right to

counsel at the time of confrontation, that what the

police could not do directly, I think referring to a

lineup, should not be allowed to do indirectly through

the miracle of photographs.

I think Florida is in the minor camp on the issue

where an attorney has to be present at the photo line-

up if in fact the defendant had been appointed counsel.

The rational I think of the case is stating that the

attorney should be there if he has been appointed, that

the accused is entitled to counsel at any critical stage

of the prosecution. I think the critical concept was in-

corporated by the Supreme Court in the Escobida case

and Miranda decisions. And I don’t think there can

be any doubt that in this particular case that the photo

lineup shown to Mr. Arnold was a critical stage of the

of the prosecution of Mr. Darden.

Quoting from another case that concerned a photo

lineup without an attorney in which I believe was re-

versed on a robbery, this being United States vs. Zelker,

I didn’t get the cite on it.

THE COURT: All right. Suppose we, for the sake

of argument, go along with the photographie lineup be-

ing improper because of failure to notify counsel and

have him present. There has been no proffer in testi-

mony here from the State of evidence concerning the

photographic lineup; we are here on motion to suppress

an in-court identification. The testimony of the witness

was made not upon the photograph but upon his in-

dependent recollection of the appearance of the defend-

ant. Have you got any cases on that?

MR. MALONEY: In United States vs. Zelken the

photo identification was suppressed. The Court went

on to say that since the requirements were not met in

that, it went on to say the burden was on the prosecu-

tion by clear and convincing evidence the identification

be based upon observations of the defendant other than

at the improper confrontation.

_ MR. GOODWILL: Also running through the case

lies the idea when there is an opportunity and time is

not of the essence, which it was demonstrated by the

testimony in here, that in order to correct any possible

taint of photographic identification that the better pro-

cedure is to hold a lineup and thereby correct any pos-

sible problem that may have been incident to the photo-

-—_ oy"

ere has been ample opportunity for a lineup. Mr.

Darden, I believe at the time that he was ceumeeting

himself, filed a motion for a lineup. There is no rea-

son why this boy could not have been brought in and

in the presence of counsel had a lineup. I believe, sir,

if that had been done and the identification had been

made at that time that whatever taint may have been

created by the photographs would have been removed

by what the Courts seem to refer to as a much better

manner of identification.

MR. WHITE: Your Honor, if the State may re-

spond briefly. We have not offered into evidence any-

thing, any evidence resulting from that lineup. Mr.

Arnold was there on the stand, he has already proffered

to the Court “when I point to that man today I am

pointing to him for one reason, my observations the

night of the crime, nothing in between.”

There is a case Avis vs. State 221 So. 2nd 235 that

says—it is _almost right on point—that says a victim

can make in-court identification even if he viewed a

lineup in which defense counsel was not present if he

can get on that stand and through his own testimony

say I am making this identification independent of any

lineup or anything that has gone on between the night

of the event and right now.

Arnold has already said that.

THE COURT: I am going to allow the in-court iden-

tification, but would not allow testimony from the State

as to the photographic lineup. If the defense wishes to

bring in evidence concerning the photographic lineup to

destroy the weight or effect of the in-court identifica-

tion, I think that would be proper, but I will cross that

when I come to it.

You see what I am talking about?

MR. MALONEY: Renew the motion we made the

other day on the additional grounds without elaboration.

I think there was argument at the time. The photo-

graphs of Mr. Darden shown to Mr. Phillip Arnold in

our opinion was the fruits of an illegal arrest and we

would object to it even having been shown to him in

the first place, and this further taint adds error on

error, and we would object to it. And on the basis the

photographs should never have been taken, the fruit

of an illegal arrest.

THE COURT: Yes, sir. I personally took testimony

on the motion to suppress, and I am taking judicial

notice of the testimony at that time without retaking

the same testimony this morning.

I will deny your motion, would allow the in-court

identification, not any evidence from the State to the

photographic lineup. The defense, if you wish to, in

order to attack the credibility of the identification of the

weight of it, may put in photographic evidence, if you

want.

[ VI; 489-500]

{TESTIMONY OF PHILLIP ARNOLD]

PHILLIP ARNOLD, having been recalled as a witness

on behalf of the State, and having been previously sworn,

testified as follows:

DIRECT EXAMINATION

BY MR. McDANIEL:

Q. The problem that I have discussed with the Court

before, I think—-that I am not sure if I’ve asked this

question. If I have, please tell me. Phillip, did I ask you

to describe the lighting conditions in the building when

you were facing the gun?

A. Yes, sir.

THE COURT: All right, you have described that,

right?

A. Right.

Q. What is your age, Phillip?

A. 17.

Q. How old were you on September the 8th, 1973?

A. 16.

Q. Phillip, since that date, have you, on any oppor-

tunity, ever discussed this case with Mrs. Turman?

A. No, sir.

Q. Phillip, I want you to think back to the afternoon

or the evening of September the 8th, 1973. I want you

to remember the person that had the gun in your face.

I want you to remember the person who pulled the

— and remember the person that shot you in the

ace.

A. (Nods head.)

Q. And in the back or side.

A. (Nods head.)

Q. I want you to look in the courtroom and see if

you see that man today.

A. Yes, sir, the Defendant.

Q. What color shirt does he have on today?

A. Blue.

AY RO eo ER eee

Q. That’s the man at the end of the table?

A. Yos, sir.

Q. Phillip, is there any doubt whatsoever in your

mind that the man you pointed to is the Defendant?

A. No, sir, none.

Q. Pardon?

A. None at all.

MR. McDANIEL: Let the record show that the wit-

ness identified the Defendant.

Your Honor, would you ask the Defendant to rise for

a moment?

THE COURT: All right. Stand up, please, Mr. Dar-

den.

(The Defendant stood. )

THE COURT: You may be seated.

(The Defendant was seated.)

Q. Phillip, since September the 8th, 1973, does he

appear any different than he did when he pulled the

trigger in your face?

A. He has lost some weight.

Q. Anything else?

A. His hair is different, and he has grown a little

beard.

Q. What?

A. A bit of a beard.

Q. A beard?

A. Yes, sir.

Q. How is his hair different?

A. It’s a bit longer.

MR. McDANIEL: No further questions.

CROSS-EX AMINATION

BY MR. GOODWILL:

Q. Phillip, wasn’t it your father that first saw Mr.

Turman?

A. Yes, sir.

Did he go over?

No, sir, not at that time.

Did he say anything to your mother?

Yes, sir.

What did he say?

He went and told my mother he thought Mr. Tur-

man had shot himself or something like that, that we

should go over and help Mrs. Turman.

Q. And she, of »urse, did not.

A. No, sir, she had just got back from church and

she wasn’t dressed to go over. She was changing her

clothes at ‘he time.

Q. So it fell upon you?

A. Yes, sir.

Q. You say that you—I can’t recall your answer on

direct in—that you could not describe the gun?

A. I couldn’t describe the color of it.

Q. Do you recall describing it to me in the past as

being a snub-nosed?

A. I said it was a small, short.

Q. Do you recall using the term snub-nosed?

A. I don’t recall it, no, sir.

Q. Okay. When you first saw Mrs. Turman and the

assailant, what was the lighting conditions where they

were?

>rOP>POPe

They were standing right by a fluorescent light.

Okay. And what was Mrs. Turman saying to you?

She was saying, “Phillip, go back.”

Did she say anything about get help?

Yes, sir.

Did she continue to say this the entire time you

were there and up until the time you ran?

A. I don’t remember.

Q. How much time elapsed from the first time you

saw the man that you have described as the Defendant,

and the time you turned and started to run? Can you

estimate?

A. Oh, I’d say about 20, 25 seconds, something like

that.

Q. Do you remember which hand the gun was in?

A. It was in his right hand.

O>opep

Se ee ee See ee PL ery

Q. You don’t actually know who shot the third shot,

do you?

A. No, sir, I didn’t see that one.

Q. Do you remember describing the man that shot

you to me as being a big man, you could tell he was a

big man, heavyset?

A. Yes, sir.

Q. Do you recall telling me that he was on the tall

side?

A. Yes, sir, I said a little toward tall.

Q. Do you recall telling me he was just a little shorter

than you were?

A. Yes, sir, I said he was shorter than me.

. That wasn’t my question.

MR. McDANIEL: What page are you on?

MR. GOODWILL: I’m not on any page.

MR. McDANIEL: All right, okay.

MR. GOODWILL: Now on Page 6, though.

MR. McDANIEL: Okay.

Q. How tall are you?

A. Six foot two.

Q. Page 8 of the deposition you recall that we took

in the office?

A. (Nods head.)

Q. Do you remember me asking you the question:

“How big was he in relation to you? Answer: I’d say

he was a little bit shorter. I never really did, you know,

stood up him, next to him; but looking at him, I would

say he was a little shorter, but not much.”

A. Yes, sir.

Q. Do you recall that?

A. Yes, sir.

Q. Is that still correct?

A. Yes, sir.

Q. Okay. During the time that you saw the man, you

weren’t keeping your eyes on him every minute, were

you?

A. No, sir.

Q. You were worried about Mr. Turman?

A. Yes, sir.

100

Q. And that was your prime concern, wasn’t it?

A. Yes, sir.

Q. Is that the reason you didn’t get out of here, as

Mrs.Turman was trying to tell you to do?

A. Yes, sir.

Q. Because of your concern for Mr. Turman?

A. Yes, sir.

MR. GOODWILL: Just one moment, Your Honor.

THE COURT: All right, sir.

Q. Did the man who shot you that day have a mous-

tache?

A. I couldn’t say for sure if he did. It was a very

thin one.

Q. Were you close enough to him to be able to see

whether or not he did?

A. Yes, sir.

Q. Whether or not he did or didn’t?

A. Yes, sir.

Q. Do you remember telling me on that deposition

that the man didn’t have any hair on his face when you

described him to the officers?

A. Yes, sir.

Q. Basically, the rest of the description is as you just

told me a minute ago?

A. Yes, sir.

Q. Big man, tall man, just a little shorter than you

are?

A. Yes, sir.

MR. GOODWILL: I have no further questions.

THE COURT: Redirect?

MR. McDANIEL: Yes, Your Honor.

REDIRECT EXAMINATION

BY MR. McDANIEL:

Q. Phillip, in response to Mr. Goodwill’s question, you

said you could not tell what color the gun was, is that

correct?

A. Yes, sir.

101

Q. Can you estimate how far your face was from the

end of the gun?

A. About two feet, two or three feet.

Q. All right. I believe that you said that you were

squatting down over Mr. Turman at that time?

A. Yes, sir.

Q. Was Mr. Darden standing on the ground or was

he standing inside the building?

A. He was inside the building in the doorway.

Q. In the doorway?

A. Yes, sir.

Q. Higher than you?

A. Yes, sir.

Q. You were looking up at him, is that correct?

A. Yes, sir.

Did the gun in your face make him look any bigger

at that time?

A. Yes, sir.

Q. You told Mr. Goodwill you did not know who fired

the third shot that hit you in the side, is that correct?

A. Yes, sir.

Q. Did you see anyone else at that time in that vicin-

ity with a gun in their hand besides Mr. Darden?

A. No, sir.

Q. Did Mrs. Turman have a gun in her hand?

A. No, sir.

Q. Did you see a gun in her hand?

A. No, sir.

Q. Phillip, after all of the cross-examination now,

would you look again and tell this Jury whether you

have any doubt whatsoever this is the man who pulled

the trigger in your face.

MR. GOODWILL: I object, Your Honor. Repeti-

tious. He’s already made the identification.

MR. McDANIEL: I am sorry, Your Honor. It may

have been weakened, I don’t know, by cross-examination.

If he did, I would like the witness—

THE COURT: Well, the purpose of redirect is to

bring out new matters on rebuttal of anything on cross,

102

and not to rehash the samé thing as before. I will sus-

tain the objection.

MR. McDANIEL: All right.

MR. GOODWILL: I just have one question.

RECROSS-EXAMINATION

BY MR. GOODWILL:

Q. Phillip, do you remember telling me that when

you looked down and you saw the gun, that your mind

just went blank for a minute?

A. Yes, sir.

Q. Is that true?

A. Yes, sir, it did go blank for just a second.

MR. GOODWILL: That’s all.

103

{ VIII; 713-715)

{TRIAL COURT’S PREARGUMENT INSTRUCTIONS TO JURY]

PROCEEDINGS

January 19, 1974

THE COURT: Ladies and gentlemen, we have now

reached that stage of the trial proceedings where you

will hear the closing arguments or the summation of

the attorneys. Each of the attorneys, | think, are going

to speak to you today. First, let me tell you what their

summations are not. They are not evidence, and you

are not to consider them as evidence. Any statements

of fact or statements of their recollections of what the

evidence was is not binding upon you. You are the sole

judges of the evidence, and your memory of what the

witnesses said is what counts. I am sure that none of

the attorneys would intentionally misquote any evidence

or mislead you in any way. They are all respected

attorneys back in Polk County; they are all personal

friends, I think, of mine; and I know each of them

well. And they would not misrepresent anything in-

tentionally. Still, memories manage to differ. And your

memory is what counts. Their statements of law are

not binding upon you. You will take the law as I shall

instruct you upon it at the conclusion of the arguments.

On the other hand, they are permitted to argue the

law to you. They are certainly permitted to argue the

facts to you; so that they will both be involved. But

they are not binding upon you.

Now, let me tell you what they are. They are a big

help to you, or can be. These are men who are trained

in the law or trained in trials, and their analysis of

the testimony, their analysis of the issues, their com-

ments upon the pertinence and the weight of the par-

ticular items of testimony can be extremely helpful to

you in reaching your deliberations or any of your de-

liberations in reaching your verdict.

So, I urge you to pay very close attention to them.

You will listen closely to ali of the testimony, and I

104

appreciate it very much, and I would urge you to pay

equally close attention to the summations by the attor-

neys.

Now, under our rules of procedure, if the Defend-

ant puts on no testimony other than his own, then his

attorneys are entitled to the closing argument. That

was the case here. So the order in which they will

speak this morning, Dennis, I guess you will open?

MR. MALONEY: Yes, sir.

THE COURT: For the Defendant, and then both

Mr. McDaniel and Mr. White will speak, and then Mr.

Goodwill will have the closing argument. All right, are

you ready to proceed, now?

MR. MALONEY: Weare ready.

MR. MecDANIEL: The State is ready, Your Honor.

THE COURT: All right, you may proceed, then.

105

[ VIII; 716-737]

{CLOSING ARGUMENT FOR PETITIONER: Mr. MALONEY]

MR. MALONEY: I don’t intend to take a lot of

time, no more than half an hour. I thank you for the

attention that you have given. It’s been five days now,

and I have never been in a trial that lasted five days,

and I am sure none of you, most of you have never

been on a Jury that lasted five days. It’s the attention

that you have given the State’s case and the attention

you have given Mr. Darden, I thank you for.

And again, I sympathize with you. For you see, where-

as Goodwill and I and Mr. McDaniel and Mr. White

have been wrestling with this thing for five days, ac-

tually more than that, months, five days here before you,

we are done. The monkey is off our back. All of the

evidence is in. We put in all that we are going to put

in. The State put in all that they are going to put in.

It’s all over. It’s all before you now, and quite frankly,

we are asking you to play God. We are asking you

today to determine whether a man is going to go home to

his family or whether a man is going to die, it’s just that

simple. But it’s not very simple, is it?

I intend to just briefly summarize the evidence that

has been before you. I’m going to attempt to be as

objective as possible. The first witness that you saw

was Mrs. Turman, who was a pathetic figure; who

worked and struggled all of her life to build what little

she had, the little furniture store; and a woman who

was robbed, sexually assaulted, and then had her hus-

band slaughtered before her eyes, by what would have

to be a vicious animal.

And she came before you, and she told you about it,

and it was very difficult for her to do so. And then in

the end, Mr. McDaniel said was the person in the room,

and she said yes, sir. Who did it, and she said he is

here. That is what is called positive evidence, eyewit-

ness identification. Very good evidence.

But I ask you to put yourselves in her position in

that was she really in a condition to get a good look

at him? You remember I asked you earlier, do you

106

really think that if you were to see a picture of me

four months from now, you would be able to say, I

remember that fellow. Perhaps you could. If I killed

your wife or your husband, sexually assaulted and

robbed you, could you? It would be more difficult if

I did it in a dimly lit room, late in the evening. It

would be more difficult still.

The police asked her, I think, at eight o’clock, the

report came in. The police were right there on the

scene at that little furniture store, hauled her husband

off; he died some two hours later, And the police asked

her who did it, what this man looked like. And I

think her description was, I think we’ve heard it, it’s

in evidence: She said he was a heavyset man. He

weighed 200 pounds or over. He was five foot six.

Remember, that was at eight o’clock, two hours after

this happened. That was her description of the man.

Mr. Darden, would you stand up?

(The Defendant stood, and then was seated. )

MR. MALONEY: Five foot six and over 200

pounds? Four or five days later, she identified Mr.

Darden as being the man that had done it. He had

been arrested, put in jail. He was at a preliminary

hearing. There were no other black men in the room.

Just a question of a woman admittedly in shock being

brought in for a ridiculous legal formality, with her

sister to keep her from breaking down to get her there,

bring her in, put her on the stand, and say, is this

the man? Is she going to say no? I don’t think she

would. The only black man she knew and so from that

preliminary hearing we get to this trial and on that

identification, which I think could easily have been mis-

taken, because of the cireumstances surrounding it. And

go so far as to say, in my opinion, the identification

was mistaken.

The next witness was Mrs. Hill. I forgot one thing

about Mrs. Turman. She was able to say that she

thought the crime occurred shortly after six, she didn’t

know exactly when, shortly after six. Then Mrs. Hill

107

came along and she heard the shots and she also said

that it occurred shortly after six. So we have got the

time down—not real well—we would like to get it down

to 6:06 o’clock, but we can’t. It was shortly after six.

So she said she lived 500 yards up the road and that

she heard the shots and came out and saw Phillip Ar-

nold, the boy who got his mouth blown up, running

up the road. She did not know Phillip very well, but

she went out and tried to help him, get him over to the

tree for the ambulance.

I think the importance of her testimony—-I think the

reason that Mr. McDaniel and Mr. White asked her to

testify is that she was able to say that this was shortly

after six, and two, “I looked down the road and there

was” I believe she said a green, late model Chevrolet

turning into Route 92, the road that is right in front

of the furniture store.

And I think it was a black man in the car, I think

that’s what she said, a black man, or a white man very

heavily tanned, from 500 years, you know, it’s neither

here nor there. It’s not really in question anyway, the

man that shot Mr. Turman, shot Mr. Arnold, was black.

It is entirely possible that the man driving the car was

the man that did that.

The State’s next witness was John Stone, and this

was a very unusual witness, I would say, because he

was almost our witness, a Defense witness. He said,

“I was driving home from St. Petersburg, had the

family down to the beach and it started raining and we

started on home. I didn’t have a watch, so I don’t

know for sure what time it was. But once again, I think

it was shortly after six. I saw an accident; indeed, I

was almost involved in an accident. The man almost

hit my car, and he drove off the road and hit a tele

phone pole.”

Mr. Stone got out of the car and went down in

an attempt to render assistance. The man that he iden-

tified is the man that ran off the road and hit the tele-

phone pole, is Willie Darden. We are not contesting

that.

108

The State can come across with all sorts of things,

but that’s not important. We're telling you the man

who ran off the road and had the accident was Willie

Darden, and that was shortly after six. I think the

interesting thing about Mr. Stone’s testimony and the

thing that differs from virtually all of the—well, not

virtually all—both of the State’s eyewitnesses, Mrs. Tur-

man and Phillip Arnold. Mr. Stone said that the man

he saw was about six feet tall, medium build, middle-

aged, and had a moustache. Mrs. Turman said the

man did not have a moustache. Phillip Arnold said

the man was clean-shaven. The only man, the only

man who saw Willie Darden on that day, said Willie

Darden had a moustache.

The next witness is Mary Simmons, the girl who

came along and saw the accident, saw this man stand-

ing around there, stopped and says, “Can I give you a

ride to Plant City to get-a wrecker?” Darden says,

“Yes, please, I’d appreciate it.” He gets in the car

and drives to Plant City, attempts to get a wrecker in

Plant City and can’t get a wrecker. Says to the girl,

“T’ll pay you if you will drive me to Tampa,” which

she does. There is nothing particularly unusual about

the man. The man did exactly what anyone of you

would have done, I think, if you had had an accident,

your car disabled, you would go for a wrecker, some-

thing to get it out of there. You can’t lay on the side

of the road. This is not a man fleeing from a murder and

a robbery and a shooting of a little boy. This is a man

driving to Tampa who has an accident, then does the

logical thing, get a wrecker. There was a lot of talk,

I guess, about his shirt, bloody shirt. Darden says his

nose was bleeding. He had taken the shirt and wiped

some blood on it. He hurt his stomach and he come

out crouched. Mr. Stone said yes, when I saw the

man, he was bent over like that. Darden said I hit

my head and my chest on the steering wheel after

hitting the telephone pole; pulled out his shirt, and

there is nothing unusual, nothing incriminating about

that. The State would have you believe it is. It is not.

Bloody shirt, there’s no mention of that. Where did the

109

blood come from? Darden says it came from me. The

implication that it didn’t come from Darden, that it

came from someone else. There is an easy way to test

that. You can run a blood grouping test to find out if

the blood on the shirt belonged to the person who owned

the shirt. Mr. Turman’s blood type was not Mr. Dar-

den’s type.

MR. McDANIEL: Your Honor, he is not arguing,

he’s testifying.

THE COURT: Oh, I think it’s within reason, and

I’ll overrule the objection. Go ahead.

MR. MALONEY: I am a little bit out of turn, you

know. I think if I asked Dr. Mezger if you recall, what

was Mr. Darden’s blood type, I think I <sked Dr. Mezger

what was Mr. Turman’s blood type, and I think Dr.

Mezger said Mr. Turman’s blood type was Type A and

Mr. Darden’s blood type was Type 0. So, yeu can

safely disregard any implications which might arise from

a bloody shirt.

The next witness was Mr. Cunningham, an excellent

witness, an excellent witness. He had been at it how

many years? 15, 20 years with the FBI experts. He

knew what he was talking about. Took a look at that

gun and said that gun was a .38 regular; it was re-

chambered to a .38 special; there are thousards of t

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