# Appendix — Darden v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1643%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 430 U.S. 704 ## Text 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) 2 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. 3 [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. 4 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 5 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. 7 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. 8 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— 9 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. 10 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. 11 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. 12 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] 13 (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. 14 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. 15 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. 16 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- 17 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- 18 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. 19 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. 20 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 21 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- 22 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. 23 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. 24 [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 So 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 25 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> 26 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 27 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 6 o ~ 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 28 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? 0. Why? Because my husband’s foot—one foot was in the a, 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. OD - 1 PO PO > AOD. 2 > 29 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. 31 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> 32 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. . 85 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 36 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- 37 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 ar 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 40 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) 41 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? 42 ") : — 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 , 43 _ 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? 44 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, 45 “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. 46 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. 47 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. 48 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. 49 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 > 50 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 a an hour after it occurred? a 51 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. 52 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, 53 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 54 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. © 56 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 57 . 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, i 59 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. 60 °. 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? 61 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> 63 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. 64 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 65 (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 67 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. 68 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 69 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 70 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. 71 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 72 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.) 73 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- =—s 79 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. 80 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. 81 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. 84 —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. 85 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? 86 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; 87 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. 88 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? 89 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. Exc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1643%3A2. Public record. Not legal advice.