# Appendix — McArthur Breedlove v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1288%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1060 ## Text a oY ier A PE yn PY a P ws anew hie 6 . ee Se ae oO SOs ag hh Ns ‘ established in Dumas, and imposes part of the predicate for obtaining statements in the second category upon efforts to obtain statements in the first category. Both categories of "statements" are within the express language of Rule 3.220 (a)(1) (ii) cf the Florida Rules of Criminal Procedure. The other decisions cited by this Court in its decision do not undercut Dumas. In State v. Johnson, 284 So.2d 198, 200-01 (Fla. 1973), this Court’considered only the proper use of police reports as impeachment evidence, and the disclosure requirements for such purposes. In State v. Latimore, supra, the Third District addressed only the discoverability of police reports which condense or summarize statements of other witnesses, not the police officers themselves. 284 So.2d at 424-25. In Miller v. State, 360 So.2d 46, 47 (Fla. 2d DCA 1978), the Court held only that reports of police officers who are witnesses to an offense or the victims thereof are discoverable, and did not address the remaining issues presented in Dumas. The only decision cited by this Court which is in even arguable conflict with Dumas is Lockhart v. State, 384 So.2d 289, 291 (Fla. 4th DCA 1980), which suggests some limitation on the right to obtain _ police reports but which nonetheless relies upon Dumas for its holdings. This Court has not previously addressed the issue of the scope of proper discovery of police reports under Rule 3.220(a)(1) (ii) when the reports involved are signed or adopted by officers who, as the officers in this case, are listed by the prosecution in its discovery response pursuant to Rule 3.220 (a)(1)(1) of the Florida Rules of Criminal Procedure. While the language of the decision in this case certainly speaks to a limitation on the rule insofar as police reports are concerned, the reliance by this Court upon the Dumas decision in this case will undoubtedly create great uncertainty as to the meaning of the holding in this case among the bench and bar. Accordingly, rehearing is necessary to clarify the holding of this Court on this issue. 1 , ee ee a , ora’ =? RELA i> II In his second point on appeal, appellant challenged the ruling of the trial court on his motion to suppress post- arrest statements on the ground that Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) and Michigan v. Mosley, 423 U.S. 96 (1975) required the suppression of the statement. After reciting the facts adduced at the suppression hearing, slip opinion at 5-6, this Court hefd as follows: Breedlove now claims that the state- ment, “eventually you will ‘talk to us," was an implied threat constituting coercion and tainting the ensuing state- ment so that no proper waiver occurred. From the totality of the circumstances, it does not appear that the statement was coerced. Rather, Breedlove chose not to exercise his right to remain silent or to have counsel present, making the damaging statement after po with his mother. The Judge properly concluded that he freely and voluntarily made the statement. Slip opinion at 6. Appellant submits that this Court overlooked the essence of his claim regarding the post-arrest statement, which was not that his statement was coerced and inadmissible under the Fourteenth Amendment, but that the police officers had failed to “scrupulously honor” his invocation of his privilege against self-incrimination, chus rendering the subsequent state- ment inadmissible under the Fifth Amendment. It is fundamental that if the dictates of Mosley are not adhered to, and police officers seek to have an individual who has invoked the Fifth Amendment reconsider that invocation, any subsequent “waiver" of the privilege is invalid. Cribbs v. State, 378 So.2d 316, 319 (Fla. lst DCA 1980); Jones v. State, 346 So.2d 639 (Fla. 2d DCA 1977). The conflicts in the testimony presented at the suppzession hearing which are addressed at some length by this Court in its decision are irrelevant to this claim. The testi- mony regarding the peuvichhnion: teen which this issue is based is unrefuted. A violation of the Fifth Amendment privilege, as defined in Miranda and Mosley, is not dependent upon the use zi ish : , F ae aac ; 4 ‘ wo wt ay ’ * 1.” ’ ae Re ae eae ee _— or threatened use of force, but upon whether or not the right "reg cut off questioning’ was fully respected in this case." Michigan v. Mosley, supra at 105. This Court made no factual or legal findings on this issue, and rehearing is necessary tc address the claim raised by appellant. Ill In his third point on appeal, appellant contended that the trial court erred in admitting into evidence out-of- court statements of his mother and brother, who did not testify at trial, in the guise of non-hearsay ostensibly presented to demonstrate the state of mind of appellant at the time of his initial interrogation by police officers, and in denying a motion for mistrial based upon the assertion of the prosecutor in closing argument that these statements were in fact true. Error is asserted both under the common-law hearsay rule and under the Confrontation Clause of the Sixth Amendment. This Court first found that the statements of the mother and brother were admissible as non-hearsay : At trial Detectives Ojeda and Zatrepalek testified i. Breedlove's statement of the 2lst. In relating what he said to them, both recited or alluded to the sub- stance of a conversation they had with Breedlove's mother and brother. Neither the mother nor brother testi- fied at trial, and Breedlove now claims improper introduction of hearsay and violation of the confron- tation clause. * * * The court properly admitted the detective's testimony about what the Gibsons said because it came in to show the effect on Breedlove rather than for the truth of those comments. The informal statements, therefore, were not hearsay and could be admitted into evidence. . . . Slip opinion at 8-9. The decision cites no authority for the proposition that out-of-court statements of a nontestifying witness are admissible merely "tc show the effect" on an accused, and no such authority exists. Rather, Florida law provides that out- oe 7 *» 4 * A SRA MNS food ion dite rein | os Sway ny DEGRA Ot Say OF PORE PMI Rene fa Ege CO aa epinted, oe eseeb Ch Oe dre 4 eT, - PAT rr te ie a te OP ie! — ~~ of-court statements which cause an accused to make statements in response thereto are admissible as non-hearsay. Brown v. State, 367 So.2d 616, 624 (Fla. 1979); McCumber v. State, 182 So.2d 627, 628 (Fla. 3d DCA 1966). For example, in Brown, a co-defendant was asked, in the presence of the defendant, if the defendant had been involved in a homicide; the co-defendant replied in the affirmative, and the defendant immediately confessed. 367 So.2d at 618. This Court held that’ the statement of the co-defendant was admissible as non-hearsay: ‘ . The principal issue at trial was the reliability of Brown's confession. The jolting effect produced by Simmon's accusation was the single circumstance explaining Brown's decision to confess, both v4 gota, inferences that Brown's confession resulted from police pressure and affirmatively suggesting that Brown confessed because his previous story would no longer be credited. The testimony as to the Brown-Simmons confrontation described a critical and lainly relevant operative fact, not earsay. The testimony was, therefore, admissible. 367 So.2d at 624 (footnote omitted). Despite the suggestion -- by the court an not by the prosecutor -- that the statements of the Gibsons were similarly admissible in this case (Tr. 933), the record clearly refiects, one of the interrogating officers himself testified, and the court itself admitted that the appellant had denied the truth of the most incriminating of these statements, and that the statements, for the most part, did not produce admissions from the appellant (Tr. 923-32, , 937, 1073). The following sidebar conference clearly illustrates the misapprehension under which the trial court was laboring: The Court: What was the basis of your side bar, please, Mr. Zenobi? Mr. Zenobi: First of all, the basis is that not only is everything he has been testifying to hearsay, but also, all of these witnesses are available. They are on the State's witness list. Secondly, the fact that even if the Court considers them not to be hearsay, when he was confronted with these statements, he denied them and nothing further was done with some of them. The Court: I know. (Tr, 932). . The Court then ruled that the jury would nonetheless be allowed to hear "what the defendant heard during the course of these conversations” (Tr. 933). Thus, the trial court admitted these statements as non-hearsay, despite recognizing that appellant, when confronted with those statements, not only did not confess to the homicide, but denied the truth of the statements. This Court overlooked or failed to consider the total lack of record support for the ruling of the trial court, and additionally failed to address the constitutional aspect of this issue. Although recognizing the purpose of the Confrontation Clause in a hearsay context, slip opinion at 7, the decision in this case wholly disregards the constitutional predicate for the introduction of even properly-admitted hearsay: a demonstration by the prosecution that the out-of-court declarant is unavailable to testify. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539 (1980); Barber v. Fage, 390 U.S. 719, 724-25 (1968). The final aspect of this issue is the argument of the prosecutor, in his closing argument to the jury, that the out- of-court statements of the Gibsons were in fact the truth (Tr. 1186- 88). The decision in this case states that “[i]t appears that the prosecutor's remarks were improper”, but holds that no reversible error occurred because counsel for appellant mentioned che Gibsons during his closing argument and "[i]t appears that defense counsel admitted that those statements were true." Slip opinion at 9-10. This holding is based upon an incorrect recitation of the actions of counsel for appellant at trial. When the statements were first introduced, counsel for appellant advised the court that their duty to appellant required them to explore these statements on cross-examination, but that appellant was not waiving any objections to the introduction of the statements (Tr. 946-48). The opinion of the Court states that counsel advised the court that they "would go into the Gibson's statements because they had been received for an impermissible purpose", slip opinion at 8; that charac- -10- 24 i ® e@ t rization is misleading: Mr. Zenobi: I would like to bring to the attention of this Court numerous hearsay objections to the testimony of Elijah Gibson. We had no intention of raising any of that testimony in cross examination. » Since it has been brought up and since the Court has overruled out objection, we would like to go into that area with- out waiving any of our prior objections made on the direct examination. The Court: Well, ‘the area to go into is the area ofthe factual basis that he related to them. Your going into it may take it out of the area that I have instructed the jury on relative to what he did for the purposes of arriving at what the defendant was confronted with, and I think the information he related to this defendant, you can inquire as to its truthfulness or where he got it, but you have to understand that it may be received on a different basis by the jury than that which was related by this officer. Mr. Levine: It is our objection that it has already been received by the jury for an impermissible purpose. We feel it is impossible for them to do it, although the Court instructed the jury. We feel we have to address and defend -- The Court: If you go into it with him, what he relates from those witnesses you are going to have to live with. Mr. Levine: We want to make it a point that we would not go into these areas but for the Court's ruling, and we feel we are compelled to do so. (Tr. 946-47). During the course of his cross-examination of the police officer, counsel touched upon the manner in which the interrogation had taken place, including the use of the Gibson statements, but made no inquiry into the truth of those statements (Tr. 970-97). Thereafter, during the direct examina- tion of the other interrogating officer, Detective Zatrepalek, the following transpired: Q. Did you, in the course of your official duties, receive sworn state- ments from Elijah Gibson and Mary Gibson? A. Yes. Q. Do you have those statements in your possession? A. Yes. Q. May I see them, please. A. Yes. (Tr. 1014). The prosecutor had the statements marked for identification purposes in the presence of the jury (Tr. 1014-15), after which ! oat a @ 25 ; he fa) a lai Ase ie By» “th ey peat, ~E are te AM ee oa” Se a a a ee > — — the court sustained the objection of counsel to the admission of the statements (Tr. 1015-16). In his initial closing argument to the jury, counsel for defendant remarked upon the fact that the prosecutor had not produced the Gibsons at trial, in the context of the interrogation of appellant: They had to hook up somebody in the house. There are six adults living in that house. You heard the statements about Mary and Elijah Gibson. Where were those people? Did the State bring them in? Of course not, because what they would have had to bring in were two more suspects, and the only people you saw in here were the detectives. Who would have been better than to bring in Mary and Elijah Gibson and say, "We heard this, we saw that on that night." Would you net have wanted to see them? Again, a lack of evidence. Would = not have wanted to hear from them? Would you not have wanted to hear how they supposedly saw McArthur Breedlov= with this evidence? Who would be the best person to tell you that? They were available, but they were not here. Again, you had to get it from the detectives. * * * . . . That is the best place to hear it -- from the horse's mouth, and neither of those people came in here. It is the mother and brother of my client. Why not bring them in here? They are the State s witnesses, or they are supposed to be. (Tr. 1152-54). The prosecutor, in his closing argument, remarked as follows: There were some questions raised about Mary Gibson and Elijah Gibson. Questions have been raised by Mr. Zenobi about the statements that Mary Gibson made to the police on November the 9th, and that Elijah Gibson made to the police on November the 9th. He asked questions about those state- ments, and that is proper. That isa. fair issue for him to raise, and then he said, "Why didn't the State produce them as witnesses?" I am going to answer both of those quesions for you right now. The State Attorney's office is not in the business, ladies and gentlemen, of compelling a mother to come in and testify against her son, and in a first degree murder case, when we are paper Moy electric chair. We are not in the iness of doing that, if we can avoid it. We are not in the business of rinse pase a brother to testify against his own brother in a first dezree murder case, where we are seeking the death penalty. What would you expect those people to say if they came in here: "I don't know. I forgot. It's been a long time.” . * * * I will tell you this, and you heard the testimony, both the mother and the brother gave sworn statements to the police on November the 9th, 1978 Detective Ojeda had the sworn statements in his report. We took them out, and they are marked-as evidence. They gave-their statements back on November the 9th. At that time, Mr. Breedlove was being interviewed by Ojeda and Zatrepalek. They gave their statements to another detective. They did not know he was being charged at that point with first degree murder. They told the truth at that point. You can rest assured of one thing; you can be as certain of this as you can that you are sitting in those seats right now: If the statements of Mary Gibson and if the statements of Elijah Gibson did not say exactly what Detective Ojeda and Detective Zatrepalek told you they said, Mr. Zenobi would have brought it out to you. He would have brought Mary Gibson in here and Elijah Gibson in here, and they would have told you, "We did not say those things.” * * * Now, with respect to Mary Gibson and Elijah Gibson, who would be in a better position to testify for the defendant than his own mother and his own brother, if they had pir egy aide pe to say, and that is why would ask you to use common sense and your ordinarily good judgment. Do not -- * * * . . . Do not have any doubt whatsoever about what Mary Gibson and what Elijah Gibson told the police, because if chere was a conflict, they would be in here telling you about it. (Tr. 1185-88). Motions for mistrial based upon these comments were denied after the argument of the prosecutor, at which point the trial court made its finding that "the context in which the argument was made was not prejudicial in nature” (Tn. 1206), not, ARS» i ie Pp ena aes - - js eae . j tf * : ee ae Pay ¢ 1K, ¢ mae rn ae Min eae. eee cits A . fg ae ‘esintaedio x 2 Nig Ar: BO ok Tie Nae eee Dal ty ete a ee Fd ‘ . 1) eee ne) nee y ’ i 0 oO « y .* sai AF sie) as indicated in the opinion of this case, in denying a post- trial motion. Slip opinion at 10, n.8. Thereafter, counsel for appellant presented his final argument, a portion of which is quoted in the decision of this Court for the proposition that "defense counsel admitted that those statements were true." Slip opinion at 10. A reading of the entirety of that portion of that argument reveals that counsel made no such admission; rather, his argument was in rebuttal of that of the prosecutor to the effect that appellant should have called the Gibsons as witnesses: Were these things suggested to him through prior interrogations, and you could bet your boots these detectives kept working on him, because I go back to what I asked you before, "On Wednesday morning, could you have convicted my client before you heard from Ojeda and Zatrepalek," and every one of you know the answer, not could have been, but was “no way". No way There was nothing but a bicycle to tie client to this case, and a bicycle that could have been ridden by Mary Gibson, Elijah Gibson, or a bicycle that could have been ridden by the other four adults in that house, and what about those people? What did they do? They pointed the finger at my client. Sure it is his mother and brother. I do not like mothers and brothers testifying like that against my client. They said, "He did it. He is the one.” Mr. Godwin would have you believe we can call people like that. . ° The State has the largess not to call people like that. ey are kind. They do not call people like that. They did not have any compurictions about page - the detectives what they said, did they? They did not have one problem asking them. * * * ‘ If you could do that, why not call the person who said it into Court, and would you have liked to have seen Elijah Gibson? Wouldn't you have liked to have seen Mary Gibson? .. . (Tr. 1218-19). Appellant submits that this Court overlooked or failed to consider the tenor and affect of this argument by counsel, as well as the context of this trial. At the time that counsel made these comments, the prosecutor had put the truth of the Gibson statements into issue, and the trial court had overruled — he ~~? _ » a le 28 ust TS aa eae, Scammell: SOI aml ee see 7 ii te ie ey . ba Sn) i . in seas | | ne a objections to those comments in the presence of the jury. This, Court did not hold that the cross-examination of the police officer regarding the Gibson statements in any manner barred appellate review of this issue, and no such holding would be possible. Counsel for appellant were duty-bound to represent + him zealously at trial, and any suggestion that their conduct waived review of this issue would impose a requirement that counsel for an accused remain silent with regard to any illegally- obtained or. improperly-introduced evidence at the risk of barring review of otherwise-preserved issues. The law does not impose such impossible burdens. Louette v. State, 152 Fla. 495, 12 So.2d 168, 174 (1943). The same analysis applies to the final closing argument of counsel, upon which this Court relied to find. the comments of the prosecutor not prejudicial. Had counsel not touched upon the Gibsons, the jury would have been left with the closing argument of the prosecutor and his assertion that the statements were true. The issue having been properly preserved for appellate review, counsel for appellant was entitled -- if not absolutely required -- to attempt to mitigate the highly prejudicial effect of what this Court has determined were improper prosecutorial remarks. Moreover, this Court also failed to consider its prior decision in McCall v. State, 120 Fla. 707, 163 So. 38 (1935), upon which appellant has relied. In that case, a first-degree murder prosecution in which che basis of the charge was that the defen- dant had hired another individual, Coy Strickland, to commit the homicide, a post-arrest statement given by Strickland was admitted into evidence, and the jury was instructed that it was not to be considered for its truth in evaluating the guilt or innocence of defendant, but only for determining whether or not Strickland was the principal in the homicide. 163 So. at 40-42. : Strickland also testified at trial, and the decision notes that counsel therefore "had the opportunity of cross-examining him toy about those statements in the presence of the jury.," Id. at 42. 2 a al ‘ . BRAY ti Skt oj gee i i bd ‘ ' q as a ‘savage and brutal and vicious and animalistic attack;' he did not refer to Breedlove as an ‘animal.'" Slip opinion at 10 n.10. This holding takes the remarks of the prosecutor out of their proper context: The exact pet acts performed . by Frank Budnick we will not know. We do not know whether he died a hero or not. We will not know, but something happened which caused him to wake up, and McArthur Breedlove now knows that there is someo in this house who can identify him, have him convicted of a crime, and he took that knife, ladies and gentlemen, and he engaged in a Pe and brutal and vicious and animalistic-attack upon the two people in that bed. (Tr. 1198). It is beyond question that the prosecutor was referring specifically to appellant in this regard, and that his remarks were not mere characterizations of the offense but of the person -- appellant -- alleged to have perpetrated it. The third aspect of this issue is the appeal by the prosecutor to the jury to convict appellant for the sake of the community. The holding of this Court on this contention is as follows: The prosecutor said: "When we walk the streets we take our chances." In response to an objection the court said: "One place in the world where we ought to be free from this kind of violence, this kind of crime, is in our own home.” The court overruled an objection to this remark. These comments appear to reflect common knowledge and they are probably the sentiments of a large number of people. They do not appear to be out of place. Slip opinion at 10 n.11. This holding ignores the context of the remarks, which were preceded by the urging of the prosecutor that a first-degree murder verdict was necessary because “nothing else will satisfy the conscience of this community." (Tr. 1199). The prosecutor was obviously seeking a guilty verdict on the basis of the fears of the community, rather than on the evidence in the case. Florida law has always condemned such remarks. See, e.g. Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Reed v. State, 333 So.2d 524, 525 (Fla. lst DCA 1976): Russell -19- ue « e ae) v. State, 233 So.2d 154 (Fla. 4th DCA 1970); Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968). And the obvious rationale for this rule of law is that such fears do in fact exist among the citizenry, but have no place in a criminal trial. Yet this is precisely the rationale upon which this Court has relied to find the remarks in this case not "out of place" in this trial. While lay persons might well believe that such considerations are important in determining the fate of an individual accused, "the criminal law departs from the standard of the ordinary in that it -requires proof of a particular crime", Paul v. State, 340 So.2d 1249, 1250 (Fla. 3d DCA 1976), cert. denied 348 So.2d 953 (Fla. 1977), and this Court has always held that "(t]he trial of one charged with crime is the last place to parade prejudicial emotions. . . ." Stewart v. State, 51 So.2d 594, 595 (Fla. 1951). Im short, the very fact that the comments of the prosecutor in this case “appear to reflect common knowledge and are probably the sentiments of a large number of people” establishes, under unbroken Florida precedent, that they were "out of place” and prejudicial in a criminal trial. ‘ V In the fifth issue raised on appeal, appellant sought reversal of the judgment and sentence entered for the offense of burglary in this case, relying upon State v. Pinder, 375 So.2d 836 (Fla. 1979). As the decision of the Court notes, the recent decision of State v. Hegstrom, 401 So.24 1343 (Fla. 1981) establishes that the only relief to which he could be entitled is vacature of the sentence. However, this Court found that "the state introduced sufficient evidence of pre- meditation”, and accordingly upheld the sentence. Slip opinion at 11-12. Appellant submits chac this Court overlooked certain important aspects of the record in reaching this conclusion. First, the only evidence introduced at trial which established the manner in which the homicide had occurred was _the post-arrest statement of appellant, in which he stated that Gass ta 34 RS el ol age Tae ry Os de (he aS 7 ph aie. he had entered the bedroom of the residence with a knife, which he had intended to use to open a jewelry box, and that the following then occurred: * A. Well, I started going through a bex -- a jewelry box, the dresser drawers, and I made some noise, and the guy woke up and grabbed me by the shirt, and I we back with the knife, and I ran. (R133). * bid * A. I jumped, panicked. He just grabbed my shirt. I swung back with the knife, like that, and then he turned loose of my shirt and I ran. (R. 134). This evidence clearly does not establish the element of premeditation. See Sireci v. State, 399 So.2d 963, 967 (Fla. 1981); Davis v. State, 138 Fla. 798, 190 So. 259, 260-61 (1939); Forehand v. State, 126 Fla. 464, 171 So. 241, 242-43 (1936); Miller v. State, 75 Fla. 136, 77 So. 669, 671 (1918); Thompson v. State, 397 So.2d 354, 356 (Fla. 3d DCA 1981); Hines v. State, 227 So.2d 334, 335 (Fla. lst DCA 1969); Weaver v. State, 220 So.2d 53, 59 (Fla. 2d DCA 1969), cert. denied 225 So.2d 913 (1969). . Perhaps the best proof of this lack of evidence is the fact that the prosecution proceeded solely on a felony-murder theory at trial (Tr. 466, 1158-59, 1199), which is totally overlooked in the decision in this case. Indeed the reliance by this Court upon a different theory to uphold the burglary sentence is in and of itself a due process violation; appellant was entitled to have the validity of the sentence determined upon the same basis as which he was tried. Cole v. Arkansas, 333 U.S. 196, 201 (1948); accord Presnell v. Georgia, 439 U.S. 14 (1978); Eaton v. City of Tulsa, 415 U.S. 697 (1974). The absence of any legal basis for upholding the burglary sentence under State v. Hegstrom, supra, requires a grant of rehearing on this claim. bf ry —~—~- VI In his sixth point on appeal, appellant asserted several claims regarding the imposition of a death sentence in this case. These claims and the grounds for rehearing on each will be addressed sequentially for the sake of clarity. A. The first issue raised regarding the death sentence was that the Eighth and fous tosis Amendments forbid the imposition of death as punishment for a pure felony-murder absent a finding of a premeditated intent co kill. This Court rejected this claim for two reasons: 1) that this Court and the Supreme Court of the United States "have found that the death penalty is not per se violative of either the federal or state constitution"; and 2) the fact that this Court has uniformly reversed death sentences in pure felony-murder cases is irrelevant because "all but one concern jury overrides." Slip opinion at 12 (footnotes omitted). The decision cites to Gregg v. Georgia, 428 U.S. 153 (1976) for the proposition that the death penalty does not violate the Eighth Amendment, however, the Supreme Court in Gregg was careful to note that it was addressing only "the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender”. 428 U.S. at 153; see also Jurek v. Texas, 428 U.S. 262, 268 (1976). Neither the Supreme Court nor this Court have expressly passed upon the validity of the death penalty in a pure felony-murder situation. Moreover, the rejection by this Court of the applicability of its prior precedent in felony-murder cases involving death sentences on the sole ground that those cases involved “jury overrides” is totally inappropriate in light of the declared responsibility of this Court to ensure fair and equal imposition of Jeath: , . Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man ae die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. . . . State v. Dixon, 283 So.2d 1, 10 (Fla. 1973). s Dixon does not hold that differing jury recommendations can justify unequal application of capital punishment. And the most recent explanation by this Court of its review function dictates to the contrary: The second aspect of our review process is to ensure relative pro- portionality among death sentences which have been approved statewide. After we have concluded that the judge and jury have acted with pro- cedural regularity, we compare the case under review will all past capital ca es to determine whether or not the punishment is too great. In those cases where we found death to be comparatively inappropriate, we have reduced the sentence to life imprisonment. Brown vate 392 So.2d 1327, a. (citations omitted). Thus, neither of the bases for rejection of the claim asserted by appellant justify the refusal of this Court to consider the constitutionality of the death penalty in a felony-murder situation. Further, to the extent that the holding of this Court on this issue is based upon its finding that there was sufficient evidence of premediations, see Point IV, the same due process violation is involved. B. The second issue raised under Point VI concerns the application of aggravating and mitigating circumstances by the trial court. Appellant first challenged the application of two aggravating circumstances found by the trial court, felony- murder and especially heinous, atrocious and cruel. See §§921.141(5)(d), (h), Fla.Stat.(1979). The basis for the challenge to the application of subsection (5)(d) was that it creates a mandatory presumption that the infliction of death -23- 37 . Pj iia ie a TAR wal sy i aha oP Nd i I. Bat PPS yr rr? “— —e ~ PS 4.e7 th ye is warranted in every felony-murder case, and that this \presumption fails to satisfy the constitutionally-mandated test for the validity of evidentiary presumptions in criminal ~ eases. This Court summarily rejected this assertion, holding only that appellant presented "nothing which compels declaring . the felony-murder aggravating circumstance unconstitutional." Slip opinion at 12. Again, to the extent that this holding was influenced by the finding of sufficient proof of premeditation, the same arguments raised in’Posne IV of this motion apply. Further, this Court apparently misconstrued the claim of appellant. Appellant did not seek to have this Court declare "the felony-murder aggravating circumstance unconstitutional", but rather to limit tes application by holding it improper in a pure felony-murder case, as the Supreme Court of.North Carolina did in State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979). The constitutional basis for this claim was two-fold. First, well- established Supreme Court precedent provides that mandatory presumptions are unconstitutional unless the evidentiary fact, in this case felony-murder, supports the ultimate fact, in this case the propriety of a death sentence, beyond a reasonable doubt. See, e.g. County Court of Ulster County v. Allen, 442 U.S. " 160 (1979). Second, ‘the Eighth Amendment forbids presumptions that death is appropriate, based solely upon conviction for a "capital" crime. See Woodson v. North Carolina, 428 U.S. 280 (1976) ; Shue v. State, 366 So.2d 387 (Fla. 1978); Purdy v. State, 343 So.2d 4 (Fla. 1977). ‘This Court overlooked or failed to consider these issues in passing upon the claim of appellant in this case. Appellant challenged the application of subsection (5)(h) in the trial court on several grounds: the introduction of irrelevant and prejudicial testimony regarding the pain suffered by the victim prior to his death, the insufficient instructions on this factor which failed to properly define it for the jury, and the findings of the trialcourt in support of its determination that subsection (5)(h) applied in this case. This Court found only that the trial court had properly applied -24- . 38 : — ~ —_—— . > Reena aenaens wees ¥ iy . n 5 OLS X ile 1, , if a haa applied the circumstance:, fl . The trial court properly found the murder to be heinous, atrocious, and cruel. Although death resulted from a single stab wound, there was testimony that the victim suffered considerable pain and did not die immediately. While pain and suffering alone might not make this murder heinous, atrocious, and cruel, the attack occurred while the victim lay asleep in this Sed. This is far different from the norm of capital felonies and sets this crime apart from murder committed in, for example, a street, a store, or other public place. Slip‘opinion at 12-13. This holding overlooks or fails to consider the admission by the trial court of extensive testimony by a medical examiner -- who did not perform the autopsy in this case and whose testimony was based solely upon his review of the file -- regarding the “considerable” pain suffered by the victim (Tr. 1219-22), the obvious impact of this testimony upon the jury, and it: documented effect upon the trial court in its finding of this aggravating circumstance (R. 186). Despite acknowledging that “pain and suffering alone might not make this murder heinous, atrocious, and cruel", the decision - in this case overlooks the patently prejudicial impact of the testimony introduced in this regard. Furthermore, this Court overlooked or failed to consider the inadequate instructions of the Court, which refused to instruct the jury in accordance with State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), and the con- sequent unconstitutional application of subsection (5)(h) in the trial court. See Godfrey v. Georgia, __ U.S. ___, 100 S.Ct. 1759 (1980). Additionally, the only basis upon which this Court approved the application of subsection (5)(h) in this case, that “the attack occurred while the victim lay asleep in his bed" as opposed to in a “public place", is neither constitutionally sound nor factually supportable. This Court has never before relied upon the fact that a homicide occurred in the home of a victim as establishing this aggravating circumstance; indeed it has specitically found to the contrary. For example, in Tedder v. State, 322 So.2d 908, 909 (Fla. 1975), in which the defendant fired at his wife and mother-in-law. pursued them into their home, shot his mother-in-law and forced his wife to leave with him, refusing to allow her to attend to her mother, this Court held that the homicide was not within sub- section (5) (h): ff. It is apparent that all killings are atrocious, and that appellant exhibited esuelty, by my | standard of decency, in allowing his injured victim to languish without assistance or the ability to obtain assistance. Still, we believe the Legislature intended something especially” heinous, atrocious or cruel when it authorized the death penalty for first degree murder. Id. at 910 (footnote omitted). In Lewis v. State, 398 So.2d 432, 434 (Fla. 1981), the victim was seated in his bedroom, watching television, when the defendant and an accomplice “simultaneously fired upon him from outside the bedroom window, using 4 .30-.30 rifle, and a 12-gauge shotgun", inflicting multiple gunshot wounds which killed the victim. This Court held that subsection (5) (h). did not apply. Id. at 438. Indeed, Godfrey v. Georgia, supra, also involved a homicide committed in the home of the victim, and the Supreme Court held that, as a matter of Eighth Amendment law, the virtually- identical aggravating factor found by the Georgia courts in that case could not be applied. 100 S.Ct. at 1763, 1767. Furthermore, to the extent that the holding of this Court is based upon the fact that the homicide in this case occurred in a residence, it is but another characterization of the fact that it occurred during a burglary. Of course, the trial court found that this fact gave rise to the application of subsection (5)(d), and this Court approved that finding. To hold that this "same aspect" of the offense gives rise to another aggravating circumstance is directly in violation of the rule against such "doubling up” of aggravating factors established -26- MVP by this Court in Provence v. State. 337 So.2d 783, 786 (Fla. SP 1976). Finally, the factual basis upon which this Court rested its finding is nonexistent. The medical examiner who performed the autopsy testified that his internal examination ~- of the body of the victim provided no basis upon which to determine whether the victim had been moving at the time of the homicide (Tr. 770). He —— testified that the pattern of bloodstains indicated the victim had been standing erect when injured (Tr. 767), and that the "defense wounds" on the hands of the victim were consistent with the victim having reached for the knife (Tr. 773), as defendant stated that he had (R. 133-34). The medical examiner did testify, on direct examination, that his f{odings were consistent "with the knife coming from above and striking from above, a person laying down. a (Tr. 771). However, he subsequently clarified this statement as follows: Q. I presume you also assumed in your answer to Mr. Stelzer's question that the victim was staying still or was somewhat relatively still when this knife was brought towards him. Is that correct? A. I can't state that for sure, sir. Q. So you do not know whether the victim was in fact moving towards his assailant at that time. A. No. I don't know if he was moving at the time. (Tr. 780). And the prosecutor conceded in his closing argument that the State could not establish by independent evidence the location of the victim at the time of the stabbing, and further conceded that he had not been asleep at that time: The exact physical acts performed by Frank Budnick we will not know. We do not know whether he died # hero or not. We will not know, but something happened which caused him to wake up. stevie, Cewbe Rave). Accordingly, appellant submits chat the factual basis upon which this Court rested ics conclusion that subsection (5)(h) was properly found by the trial court is refuted by the, record. The second aspect of this issue is the urging by the prosecutor of non-statutory aggravating circumstances in his argument to the jury to recommend a death sentence. The decision of this Court recognizes the impropriety of this argument, noting that they “may have stretched the bounds of proper * argument", but held that appellant "does not appear to have been prejudiced because the court did not find them in aggravation." Slip opinion at 13 (citations omitted). This holding fails to consider the great importance placed upon the jury recommendation under Section 921.141; this Court has repeatedly emphasized that the advisory verdict of the jury is a key component of the death- sentencing process. See, e.g. Ross v. State, 386 So.2d 1191, 1197 (Fla. 1980). LeDuc v. State, 365 So.2d 149, 151 (Fla. 1978); Tedder v. State, 322 So.2d 908, 910 (Fla. 1975); Lamadline v. State, 303 So.2d 17, 20 (Fla. 1974). Thus, in Elledge v. State, 346 So.2d 998, 1002-03 (Fla. 1977), where non-statutory aggravating factors were presented to the jury and found by the court, this Court reversed the sentence and remanded for a new sentencing hearing. For the Court to hold, as it does in this case, that a prosecutor may violate one of the most basic principles governing the applica- tion of Section 921.141 and that a defendant has no valid complaint if the non-statutory aggravating circumstances argued by the prosecutor are not expressly found by the trial court, is logically inexplicable in light of Elledge. Indeed, in that case, the testimony and argument regarding the nonstatutory aggravating evidence has received without objection by counsel for the defendant, yet this Court nonetheless held that a new jury sentencing hearing was required, stressing that the weighing process by both judge and jury must be constitutionally sound: . . . But was the error harmless because of the lack of objection and the existence of substantial additional aggravating circumstances? We believe not. TT a” ee eee) a ee) ote Would the result of the weighing process by both the jury and the judge have been different had the impermissible ree factor not been present? We cannot know. Since we cannot know and since a man's Life is at stake, we are compelled to return this case to the trial court for a new * sentencing trial. . . . 346 So.2d at 1003. In this case, it cannot. be concluded -- as it could not in Elledge -- that the weighing process of the jury was mot infected by the repeated ahd prejudicial remarks of the prosecutor regarding non-statutory aggravating circumstances. It is thus fundamentally wrong for this Court to find no error on this point simply because the court did not mention the non-statutory factors in its order, ignoring the impact of these factors on the jury. And this holding is particularly ironic in this case. This Court rejected the claim of appellant that the death penalty is unconstitutional as applied in a pure felony-murder case, in part because the other felony-murder cases cited by appellant involved "jury overrides" and this casé a jury recommendation of death. Yet, appellant has established a valid reason to believe that recommendation is tainted, and this Court, ignoring the importance of the jury recommendation, . has rejected the claim on the basis that the court was apparently not affected by that taint. The final aspect of this issue addresses the burden- of-proof instructions given by the trial court and its instruc- tions and findings on mitigating circumstances. In finding the instructions “proper and adequate", this Court overlooked or failed to consider the repeated instructions of the trial court ‘e the jury that, if it found an aggravating circumstance to exist, it would then be required to determine whether sufficient mitigating circumstances exist to outweigh the aggravating circumstances (Tr. 1290, 1459, 1461, 1464), and its decision in Alvord v. State, 322 So.2d 533, 540 (Fla. 1975), holding that the prosecution must establish that aggravating circumstances o\tweigh mitigating circumstances to justify a death sentence. This Court also overlooked or failed to consider the constitutional authority requiring that the burden of proof be allocated as in Alvord. See Mullaney v. Wilbur, 421 U.S. 684 (1975). With regard to mitigating evidence, the decision states that "the court did not limit presentation of mitigating evidence." Slip opinion at 13 (footnote omitted). Appellant . did not assert that ic did, but rather that the instructions, combined with the allowance by the court of improper prosecu- torial argument to the effect that mitigating circumstances were limited to those in the staréee, unconstitutionally limited consideration by the jury of the mitigating evidence that was presented. The Supreme Cotrt of the United States, in both Lockett v. Ohio, 438 U.S. 586 (1978) and Gregg v. Georgia, 428 U.S. 153 (1976), declared that merely providing a jury with information in a capital sentencing hearing is insufficient; the jury must be given explicit and complete instructions for using that information. It has recently re-emphasized that requirement, and the constitutional command that all relevant mitigating evidence be considered by the sentencing authority, in Eddings v. Oklahoma, __*U.S. ___, 102 S.Ct. 869 (1982). In this regard, the decision of the Court states that the trial court “after acknowledging the conflicting testimony regarding Breedlove's mental capacity, chose to find his capacity not impaired or diminished." Slip opinion at 13. The decision cites a fragment of the sentencing order, but omits that portion in which the trial court stated its reasons for rejecting that testimony; examination of that portion of the order reflects that the trial court did so based upon its belief that appellant was sane and competent (R. 187-88). Florida law establishes that the trial court erred in applying the standards of competency and sanity to evidence presented under Sections 921.141(6)(b) and (f), Florida Statutes (1979). See Mines v. State, 390 So.2d 332, 337 (Fla. 1980); State v. Dixon, supra at 10. Appellant accordingly submits thac this Court failed to consider the critical aspect of this claim, that the refusal of the court below to consider the mitigating f" of et ee / 4 eee SER OR Ae a ee SEE ee ¥ evidence based upon an inappropriate standard and was there- fore constitutionally infirm. CONCLUSION Based upon the foregoing, appellant requests this Court to grant rehearing in the above-styled cause. Respectfully submitted, _/BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1351 N.W. 12th Street Miami, Florida 33125 wAs nt Public Defender Assistant Public Defender CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing motion for rehearing was mailed to Alan T. Lipson, Assistant Attorney General, 401 N.W. 2nd Avenue, Miami, Florida 33128 this 17th day of March, 1982. "hy Avenue. That would be .«imost north of the scene, that particular U Tote'm, yes. Q But insofar “as the. U Tote'ms on West Dixie Highway - ' are concerned, MR. ZENOBI: Objection. THE COURT: Overruled. No. [By Mr. Stelzer] What was next? We asked him what he had been wearing that night. He stated that he didn't remember what he had been . wearing and he didn't know. ‘¥ At that point, I, myself, confronted him with the fact that Elijah had told us-- Q A A Not the fact. --that Elijah had told us-- MR. ZENOBI: Objection. These witnesses are available. THE: COURT: Overruled, counsel, It is not a question of their availability at all. [By Mr. Stelzer) Go ahead. --that he had been wearing long pants and a T-shirt when he left, and that when he returned in the early morning hours, these pants had been cut off. At that time, Mr. Breedlove, stated that that was not true; that his pants were not cut off, “3 1a ans we iy : SAG ‘ , 4 j a % ty ore v, wid J Y \ " ¥ * : “e nn4 te z » ORT Le et . aa ghee bad iin os Ro — ow ‘e : a Fy 1 DES NE Oe ENE EM Pe eS Oe I ee eae OP FR TOMAN | bat 1 ite eT Nia ee ey RS eee | ll 24 i ® e@ 901 I further satel at him that I had information that | he had arrived at his residence with wan type of stain on a his pants--- ye MR. ZENOBI: Objection; hearsay by implication. THE COURT: Overruled, The jury has a right to know, counsel, in evaluating the statement made by this defendant, as to what he was confronted with at the time he made the statement. The objection is overruled. Q [By Mr. Stelzer] Prior to that, was the | defendant ever asked what if anything of an unusual nature had happened? | A Yes, sir. Q Tell us about that. A At that particular point, he stated that no, that is not true; that his brother was not telling us the truth.. Then he was asked, "Had anything unusual happened to you on that particular night prior to you arriving at your residence?" He stated, "No." I then confronted him with the information that we hac received from his brother that he had a red substance-- MR. ZENOBI: Objection as to information from his brother. ‘ A ) 6 902 -e« THE COURT: ovérruled. Ps --on his pants, at which time he stated tous that he had gotten into a fight at the U Tote'm store with another. male who he did not know. > a Q the blood A Q A pants was asked him, that he took them off, rolled them up, and placed them in a Dempsey as to where the bicycle had come from. Street. - I then confronted him--- THE COURT: I can hear you up hére, counsel, so can, the jury can also. {By Mr. Stelzer) Did the defendant say that is how got on his clothes? Yes, sir. All right. He was then confronted about his pants being cut off He stated that the reason that he did cut his because he did have blood on his pants, and I "What did you do with your pants," and he stated dumpster that was directly behind his residence. We then asked him again with regards to the bicycle Again he told us that he had stolen it from 146th Let me stop you for one minute. Now, how many people are in this room? Myself, Mr. Breedlove, and Detective Zatrepalek. Were all three of you in the room at all times? Be ite ite anh. ay 2 td) | rd] 903 A No, sir. ie j ‘ 4 Q If there was a time when all three of you were not in the room, let us malls A Yes, sir. - He was then confronted again aban’ the bicycle and asked where he had gotten the bicycle. M He reiterated that the bicycle had come from 146th Street, and the reason he had taken the bicycle was because he was tired and needed a ride home. Then he was confronted again with Elijah's state- ment about the blood on his pants-- MR. ZENOBI: Objection. THE COURT: Overruled. A --and the fact that his pants had been cut off. At this particular point, I told the defendant that I did not believe his story that he took the bicycle because he was tired. I told him that I felt that he had gone into a house on 146th Street, and while he was in this house, an altercation occurred and that something happened in that house--that he had stabbed someone and that is how the blood hac gotten on his pants. At this particular point, he stated, "No, that . is not true," but just about this time, someone knocked at the door of the office and asked for Detective Zatrepalek to ‘ i ; ! ! ' / & © 904 walk out, at which time Détective Zatrepalek walked out of. / the room, 4 I then Gonksaued the interview with Mr. Breedlove. Q Let me stop you for a moment. At any time, was any mention made of a watch either vadees or after Detective Zatrepalek walked out of the room? i MR. ZENOBI: Objection to the leading nature of that question and the suggestiveness of that question. ‘THE COURT: Overruled. Try not to lead, A Yes, sir. During the conversation we had just prior to the area about the blood on the defendant's pants, it was also breught out that we had received information that he had brought a--- MR. ZENOBI: Objection. Again, it is hearsay, it is prejudicial, and inflammatory. THE COURT: Overruled, counsel. The jury is entitled to hear what this man was told by these officers at that time. Overruled, It is not being offered to prove what was told as being true, but simply what was said to him. On that basis, I will overrule vour objection. ies fe SS eae 7 @ 905 1 Go ahead, yas : : : 2 A That he showed a watch--- 4 pal 3 | Q [By Mr. Stelzer] Back up a little bit, 4 : A Yes, sir. i 5 | He showed--meaning Mr. Breedlove showed--Elijah 6 | a watch with rhinestones around the face. 7 : MR. ZENOBI: Objection, : 8 : THE COURT: Same grounds, counsel. 9% MR. ZENOBI: May we have a side bar? +10 THE COURT: Sure. 11 | (Thereupon, dpitees for the respective parties 12 : and the court reporter approached the bench and conferred 13 with the Court outside the presence of the jury and the vat following proceedings were had:] 15 THE COURT: What was the basis of your side bar, 16 please, Mr. Zenobi? “ MR. ZENOBI: First of all, the basis is that ia not only is everything that he has been testifving ‘9 to hearsay, but also, all of these witnesses are én | available. They are on the State's witness list. * Secondly, the fact that even if the Court Bn considers them not to be hearsay, when he was confronted is with these statements, he denied them and nothing i further was done with some of them. 1 di THE COURT: TI know. . ae ng 437- FRICOMAN TlLompano. 24 25 That is somethifig that can be ied se neta on cross. The point is, as relates to: your continued objectior as to hearsay, which I have continued to rule on, the matter does not go tothe truth of the matter to be asserted. It is not hearsay, and it is admissible even though said by someone else at some other time, The jury has a right, in evaluating the defendant's confession, to hear what was told to him by these officers, and they are not to take--and I will instruct them on that--what he said to the defendant as being truthful or not, but the jury is entitled to know what the defendant heard during the course of these conver- sations, and my rulings will continue to be the same. MR. LEVINE: Mav I make a brief response? THE COURT: If vou feel it is necessary. MR. LEVINE: In brief response, what the detective is saying is that Elijah told the detectives that the defendant had a watch, a gold watch with rhinestones on it. So far there has been enon ictal ae physical evidence to link the defendant with the scene. No property was ever recovered, This provides a direct link to the scene. Now, for the Court to go ahead and instruct them that it is only to be considered in relation to the . 94 a 447 farroman Hiomearo | rae eee Ui A a @ | © 907 defendant's Fup sea not for arte truth, I do not think it is pretaees for bivaih to a Veen ate the probative value. aw is analogous to him saying, "Well, The Pope told us he witnessed you killing Mr. Budnick,” and the deterbint says, "That is a lie." Can the jury disregard the fact that The Pope told the officers that he witnessed a murder? Can they disregard that? I think it is exactly analogous, and we move for a mistrial at this time. THE COURT: Denied at this time. MR. LEVINE: We ask the Court to give a cautionary instruction then that they should disregard any state- ments that relatesto the watch, for any purpose. THE COURT: That motion is also denied, MR. LEVINE: Then..we will ask that they aisregard the statement as relates to the truth. THE COURT: I will instruct the jury that the statements made by the officer are not made by the officer for the purpose of proving the truth of the matter, but only to know what the defendant was confronted with by these officers, which is exactly the basis on which it is admitted. MR. LEVINE: We reiterate that it is impossible for them not to consider it that way. 24 25 5 Di or eG EE MR. ZENOBI: We“ ask that the prosecutor do it the correct way, which is to bring in the witnesses. THE COURT: -You keep saying that. I feel quite confident, Mr. zenobi, my rulings are correct, and the only thing I can do is be patient, you can state your objections, and I-will rule on then. If I am in error, then the appellate courts will review it. I am satisfied I am handling it in the proper fashion, and I trust.you are making an objection at side bar rather than in front of the jury--- MR. ZENOBI: I am not doing it as a dilatory tactic. THE COURT: I do not think you did. If you are not satisfied with my rulings and think I should be further educated, the best way to do it is to try to further educate me. MR. LEVINE: The record is bare of any evidence linking the defendant to the crime absent any hearsay statements by the defendant's brother ‘that he was in possession of the property that was described as being taken from the scene of the crime. THE COURT: Your:-summary, whether it is accurate or not, is in the record, [Thereupon, the following proceedings were had i I cis * 5 ie 23 24 within the hearing of thejury:] THE COURT: Members of the jury, counsel sometimes have a Aéelaceibe-4? epinion as.to matters of evidence, and that, of course, is my responsibility to resolve. I have admitted that evidence in this case, and you should understand that as to the.officers' testimony about statements made to him by someone else, you are not to accept the statements that somebody else told the officer as the truth of that issue at all. It is simply to give you the opportunity to evaluate, for the purposes of your decision, what this officer may have told the defendant at the time their conversation took place. It is not to go to the truth of what he told the defendant, just simply what he said. All right. MP, STELZER: Just to make that clear, Your Honor is not instructing the jury that thev are not to accept the officers’ statement. THE COURT: No, sir. MR. ZENOBI: Objection. THE COURT: I am not saying that. I am simply saying that they are not to take those statements that he alludes to from somebody else as being the truth. | They are simply statements made by the officer which may or may not have been brought to his attention eet i ales 24 25 @ is. @ 910 by somebody else. ~ Go ahead. Saar Q {By Mr. Stelzer] Back up half a step. My question was, was anything mentioned by either you or Detective . Zatrepalek to the defendant about a watch, and if so, what : did you say and what did the defendant say. back to you? A Yes, sir. I mentioned that we had received infor- ‘mation from FEliiah-- MR. ZENOBI: Objection, same grounds. THE COURT: All right, counsel. Same ruling. A --that the defendant had shown him a watch on the early morning hours of Monday, and that this watch was described as having rhinestones around the face of the watch, at which time Mr. Breedlove said to us, "I did not have that watch. My brother is lying." Q [By Mr. Stelzer] ‘What was the next thing that happened? A At that particular time, a knock came to the door, and Detective zatrepalek was summoned out of the room, For what reason, I believe it was a phone call. I continued conversing with the defendant. 2) All right. A I asked him, at that particular point, the whereabouts of where he took the bicycle from. He again told me that he had taken it from 146th Street. @ | ©} 743 Q This, I take ite you were able to observe from your 4 internal examination as well as your external examination, a A Yes, sir. S Q While we are on the internal examination, could you tell, from your internal examination, whether or not the body of Frank Budnick was moving at all at the time the knife wound was inflicted? A Not really. Q Could you tell the direction that the knife wound went in? | A Yes, sir. Q Would you go ahead and tell us the direction, please. A Okay. The wound went from left to right [indicating]. It went from--- Q Let me just make sure. A Okay. Q Your left is different from my left. From your left to your right? A Yes, sir. Q So it was this way [indicating]? A Yes, From up to down. Q This way [indicating]? A Yes. Q And from front to back. That is from your front to your back. ‘ . 25 | @ @ 44 A Yes. ft ! Q So it would be in somewhat of & direction like this 7 “ [indicating]? - A That is the direction that the knife penetrated the skin. Q All right, sir. Is that information which you have just given us consistent with the knife coming from above and striking from above, a person laving down in something such as a bed? A Yes, sir, it would be. Q Were you able to see how deep that knife penetrated’ into the chest cavity of Frank Budnick? i Yes, sir. Q How deep did it go in? A Five and a half incnes. Q Would that be consisteut with a great deal of force applied to the knife? A Going through the clavicle would make it consistent with a great deal of force. The other structures are not things that require force to go through. | Q Did you do any examination to determine whether there were any drugs in the body of Frank Budnick? A Yes, sir, I did. Q Did you detect the presence of any drugs in the body of Frank Budnick? 4a7l. FRIEOMAN T] LOmBARO! it ie PA Se Ree OE 26 25 ' We tested for phenothiazines; tranquilizers such as Thorazine; , amphetamines and barbiturates. We tested for Oxazepam ' and benzoyl Ecgonine, cocaine. We tested for morphinans, ®@ @ 745~—=C«s A Yes, sir. ae Q What drug did you detect the presence of in the body * of Frank Budnick? ts A Therapeutic levels of Tylenol. Tylenol is the stuff you take instead of aspirin? Yes, sir. Any other drugs? We tested for several other drugs. Such as? rr, oO FF OD FY DD We tested for alcohol. We tested for methyl alcohol, which is sometimes used instead of regular alcohol. We tested for Acetone. We tested for aspirin. heroin and opium derivatives. We tested for Methadone, Darvon, Quaalude, and marijuana, and none of these tests were positive. Q The only drug you found was Tylenol. Is that correct? A Yes, sir. Q Did you observe any of these wounds that you have characterized as defense wounds on the body of Frank Budnick? A Yes, sir, I did. Q How many defense wounds did you find on the body of : @ 746 Frank Budnick? Pi | 7 A On the palmar aspect of the right hand, he had five wounds over this aspect (indicating). They were scattered throughout the hand. Q Would those wounds be consistent with a person grabbing at a knife as it was coming towards nim?’ A Yes, sir, they would be. Q Would it also be consistent with an attempt to ward off other knife blows as the knife came at him? A It would be consistent. Q Did you take any shotographe of those defense wounds on the hands of Frank Budnick? A Yes, sir, I did. MR. STELZER: Would you mark this, please. THE CLERK: 3-X for tdentd? ication. [Thereupon, the item referred to was marked for identification as State's Exhibit No. 3-X.] ; Q [By Mr. Stelzer) While defense counsel is looking at 3-X, Doctor, I will ask you if you can identify that which is marked in evidence in this case as State's Exhibit A I remember the face, and I matched up the case number with our case number, 78-2718, and from the setting, I can recognize this as an identification photo of Frank Budnick. I do not recognize the gentleman identifyin | om YY ts 24 25 @ e e him. | Q You do not recognize the living person? A gam A No, sir. * “ Q Was the dead body identified on that day as Frank Budnick? A Yes, sir. ~ Q That is the one you have been talking about today as having performed an autopsy on? A Yes, sir. MR. STELZER: You have no objection, Mr. Zenobi,- to 3-X? MR. ZENOBI: No. THE COURT: Admit it. THE CLERK: 3-X becomes State's Exhibit No. 43. {[Thereupon, the item referred to was marked as State's Exhibit No. 43 and received in evidence.) Q [By Mr. Stelzer] Would you step down one more time for a moment, please. Showing you what has been marked as State's Exhibit No. 43, you can use this pointer for a second, and I ask you, first of all, ig¢ you can identify this photograph. A That has 2718. That is a photograph of the hand of Frank Budnick that I took. Q Does that reflect the way the hand of Frank Budnick looked on that day when you took that picture? Sot ile FRICOMAN Lompanor ee nee 4) 2 ne . rd] | td] 748: A Yes, sir. | ’ ae . Q Does this photograph accurately depict the defense wounds you are talking about on his hand? A Yes. be Q Would you show the members of the jury what you mean by a defense wound, A One, two, three. There is one here you can barely see the edge of, and one here. That's five. Q You may have a seat again. Did everything that you testified to today and from your report take place within the County of Dade and the State of Florida? A Yes, it did. Q Thank you, Dr. Kessler. MR. STELZER: Your witness. THE COURT: Cross, please. MR. ZENOBI: Thank you, sir. CROSS EXAMINATION BY MR. ZENOBI: Q Doctor, I heard you talk about your inspection for drugs in the body. Are there certain things that happen in the human body which leave residual effects from the use of prior drugs, that although someone may not be using them at that time, there is something in the body that indicates that they may have been used? : Ps 24 25 | | ! ! fact Mr. Budnick had been’ using heroin to a large extent or to a small extent. Is that earienay” A I couldn't GALE. he used it at all, sir, but from my toxicological evaluation at the time I did the autopsy, heroin was not present. : Q Could you have eliminated the fact that he used heroin from those lymph nodes? A No. Q You made a statement before about the force of the knife going into the left pleural cavity, I believe you said, Is that correct? A Yes, sir. Q Correct me if I get any of the medical phrases wrong, but you stated it went through the clavicle, which is, I believe, this bone right here [indicating]. A The collar bone, sir. Q It would be the left collar bone. Am I right so far? A I am just showing it [indicating]. Q Now, you stated that there was great force behind this blow because the collar bone was broken. Is that correct? A Yes, sir. I compared it to just going into the chest cavity and not hitting the collar bone. Q That is your only basis of comparieon. Is that _ 8 ecrr Tom NS. > it BIg awe Ts meee eR oy. | : eee Se He @ @ 752 é = | s+ ene —_— az 24 e Pete tena e = correct? A Also, in doing work on bones, forensic osteology, I know the collar bone isa tough bone and it is hard to cut. of Q I presume you also assumed in your answer to Mr. Stelzer's question that the victim was staying still or was somewhat relatively still when this bathe Mes brought towards him. Is that correct? A I can't state that for sure, sir. Q So you do not know whether the victim was in fact moving towards his assailant at the time. A No. I don't know if he was moving at the time. Q If that were so, of course you would have comparati- vely less force being used by the victim at the time. Is that correct? MR. STELZER: Being used by the defendant. THE COURT: Being used by the person using the knife. A Yes, sir. Q So you would have to know the relative speeds of the knife and also of the victim moving towards the knife. Is that correct? A That's correct, sir. Q So your statement about great force being used-- I believe you said something about force being used--since it 7 940 eunshaien a a — ~ ee eee ee — © . 892 fa) After going ore this constitutional rights advisement with the defendant, did there come a time when you and Detective tatrepaler conversed with the defendant, and if so, will you tell the members of the jury, please, what you said to the defendant and what the defendant said to you. - During the course of your testimony, I may stop anc ask you additional questions. MR. ZENOBI: Renew all pre-trial objections. THE COURT: Same ruling. MR. ZENOBI: Does the Court wish us to restate them? THE COURT: They have been previously stated, Me. Zenobi, thank you. I do not think it is necessarv. Go ahead. LR At that time, prior to the constitutional rights, we had identified ourselves as homicide detectives of the Public Safety Department, Dade County. | I said, "My name is Julio Ojeda and my partner's name is Charles Zatrepalek.” I told him that I could probably be referred to ‘as"0J," because my last nane is difficult to pronounce, anc Charles Zatrepalek is difficult to pronounce and can be known as Charlie or Zat,.” . ‘ ore as th 24 25 a eek © ei a3. MR. STELZER: May we approach the side bar, 4 please? a a THE COURT: Yes. (Thereupon, counsel for the respective parties and the court reporter approached the sane and conferred with the Court outside the presence of the jury and the following proceedings were had:] MR. STELZER: One of the things the detective asked Mr. Breedlove is, “What do they have you in jail for," and he is going to sav, "I am under arrest" or "They arrested me for loitering and prowling or me giving false information." That is part of their conversation. I wanted to bring that fact up now. If the Court decides that should not be brought up, the jury could be excused and Detective Ojeda should be instructed not to say that, if there is anything improper in that. MR. ZENOBI: Our vosition is that it is improper and he should be instructed not to bring that up, as a collateral matter. THE COURT: I had earlier ruled that the. question as related to that could be responded to, If you are asking for early advice on what position you should take, I wouid overrule his objection 24 ; said to the defendant. . s0ee + ame coca © ' rights, that his name was McArthur Breedlove. 25 ee a ee ae oe _ —_ m e ee to that question Pi he makes. it. s {Thereupon, the A at ae prodeedings were had within the hearing of the ‘Satyi) Q (By Mr. Stelzer). All udght, Detective. At this point, you may sroeuae and tell us everything that the defendant said to you and what you and Detective Zatrepalek A I then instructed him that we would be referred to as "OJ and Charlie or Zat." He then advised us prior to the constitutional Then we read the constitutional rights waiver form, It was signed to make sure he understood everything, and we started a conversation. He was asked, vou know, what is his name. Again he stated that his name was McArthur Breedlove, and he also uses the name of Jenkins. He had been recently arrived from California approximately two months ago, and we asked him what had happened. He stated that he had been arrested on the previous MR. ZENOBI: Objection. THE COURT: That is what we noted at side bar. The objection is noted and overruled, oe cs Al ‘o 24 Ae ees —_————— — e oe- OD > oO "He," Mr. Breedlove, then stated--that in fact he —— 24 : eo | - oar was at the U Tote'm on West Dixie we itis rints in that house." I asked him, "Why?" He says, “Because you won't find those fingerprints in the house." I again backtracked and started welt sne about the items, the bicycle, the blood on his pants, and so forth. I then asked him, "Are your fingerprints in that house, McArthur, because if they are, we are going to find ches?" He stated, "You are not getne te find them hecause 102 ee as SF Se = Oe ee ee ee Se ee ee ee 24 25 : e 915 I was wearing socks," which at that time, I then said, "What J . J / 4 kind of socks were you wearing?” He didn't anewel I said, "Why were you wearing socks on your hands?" He didn't answer. He said, "You *xe not going to find my fingerprints. Why don't you take my fingerprints.” At which time, I stopped and I took him upstairs to the fourth floor, where the fingerprint department is, and in fact took his fingerprints. Q Who was it that you saw on the fourth floor of the Dade County Public Safety Department? A I saw George Hertel, who was the fingerprint identification man who was on duty on that particular night. 0 Do you remember approximately what time that was, give or take a half an hour? h Anywheres between 7:00 and 7:30. The exact time, I @€on't know. Q Again, was there any further conversation at that point? A Not while we were upstairs, no. Q How long was it that you were upstairs with the fingerprints being taken? Pa Approximately 15 minutes. Q Did Mr. Hertel have any difficulty getting the a we pee . | A Yes. f Q After that 15 minute period of time upstairs, What happened? g : A We returned back downstairs in the same office. : I started speaking with him, at which time Detective Zatrepalek ~ walked in. At that point, again, since he had walked out of the room for a certain period of time while I was conversing - with Mr. Breedlove, I showed Detective Zatrepalek my notes ané circled the items I felt were important at that time, and I showed him the notes rather than telling him in front of McArthur. We then started acain conversing with him to see if he would say everything again; however, at this particular point, McArthur was not ressonsive to our line of questioning, and he went on to does about other things that had occurred to him at other times. 3 Q Without telling us what those other things and . other times were, did you have that conversation with the defendant-- A Yes. Q --for a period of time on that evening? A Yes, sir. | fe) Did the defendant subsequently get placed under arrest that night? 404 pdt add “oe ee eae OO I A LE A — @ : © 917 1 A Yes, sir. BA y 4 @ Q Do you remember what time it was that he was placed “ oo’ 3 | under arrest? / 4 A Approximately nine-thirty, ten o'clock. se Q And the charges? 6 | A First degree murder and burglary. 7 | Q What sort of paperwork has to be gone through to e ) place somebody under arrest? 9 : A There is what we call an Arrest form, which gives “10 the name, address, aliases, some personal history on the person, place of birth, tattoos, scars, mother's name, and mee eee ones +S 12. so forth, and then it gives a general, small description of 13' what occurred, so that when it is taken over to the State 14 Attorney's office, they know what occurred. 15 - Q Without going all the way through it, is it a 16 fairly extensive amount of paperwork? 17 A Yes. 18 Q How long does it take, approximately, to fill out 19 | all of the forms and papers? 20 | BR Approximately an hour. It has to be signed by 21 : a supervisor to make sure it is all there. 22 Q How @ifficult is it to find a supervisor: at that 23.«=3hour? 24 A It is difficult to find a supervisor who has a 25 clerk stamp--who is a deputy clerk, who can ‘stamp it and 15 gt 24 ee eee ee 0 @ @ o10 put the affidavit al Q After all that paperwork was done and all of the 4 3 , conversations were completed, was the defendant transported anywhere? a A Yes, sir. Myself and Detective Zatrepalek took Mr. Breediove from our office to the Dade County Jail, located adjacent to our building. Q Detective Ojeda, did there come a time shortly after that date where you were injured? A Yes, sir. Q Do you remember what date it was that you became injured? ra November the llth. Q A back injury, I believe? 2 Yes. Q As a result of that injury, were you off duty for some period of time? B Yes, sir. I was on injury leave from November the 18th through December the 4th. Q As a result of that, any investigation in éhat perice was done by Detective sntcebaden alone. Is that correct? a Yes, sir. 2 Did everything you testified to today take place ¢ in Dace County, Florida? satan * 24 & * 1277° according to the case law in Florida, to list somebody by job title. We would have given the name of Dr. Wright if we had been sure it was going to be Dr. Wright to testify in this case. i Number two, there is no discovery in this phase. THE COURT: I am aware of that. MR..STELZER: Number three, Mr. Levine did not talk to any of my witnesses. He could have come down and talked to them. I said, "Is there anybody you want made available today?" He came down and three witnesses were there. Dr. Wright was not there. He was doing an autopsy. Mr. Levine said, "If I want anybody, I will let you know." q I would have made anybody available. MR. LEVINE: In response, I asked for a proffer as to what ve witnesses would testify to, and I was led to believe that the three sitting there were the witnesses, I laid that out, based upon the proffer of what Mr. Stelzer told me. Cf. those witnesses, two of them were excluded. I asked for a proffer and that is the proffer I got. 133 1306 & ES 1278 * 5 ' a I think I am entitled to rely on a written a 2 pleading. 3 THE COURT: I am bicapuaian When did you all 4 decide that Dr. Wright was going to be the witness to 5 testify? x 5 MR. STELZER: After the verdict on Friday, we 7 contacted Dr. Wright by telephone and asked him if he 8 could possibly be there. We did not know there was . 9 going to be a guilty verdict. 10 We knew Dr. Kessler was going to be out of town. 1 That is why we put--- | 12 THE COURT: My only concern was, while there may oh 13 or may not be a discovery provision in the penalty 14 phases of the trial, I thought it had been well under- 1§ stood that we were going to exchange names of people, 16 so if you wanted to talk to them, you could do it. If 17 you do not want to talk to them, that is another thing. 18 I think they have a right to talk to Dr. Wright 19 before he testifies. 20 MR. STELZER: We wanted to talk to their psychia- 21 trists. They were never made available to us today. 22 Dr. Wright is here. I have no objecticn to them 23 talking to hin. 24 MR. LEVINE: In response, Mr. Godwin said if I td -s would have given him a written report, he would waive t — ecrr Tom” FaICOMAN LOmeaRoci OALE GENORON oO8 1807 - i 24 @ 1279° speaking to them. THE COURT: My point is, the Judge should not be in a position of having to cross examine lawyers to find out who has done what and who has not done what. } Do you have another witness to call? MR. STELZER: No. (Thereupon, the following proceedings were had within the hearing of the jury:] THE COURT: Folks, would you go into the jury room for a second while I chat with counsel. It is getting hard to whisper. Do not discuss the case. (Thereupon, the jury retired from the courtroom after which the following proceedings were had:] THE COURT: Now, talk to him outside Counsel, if you want to, please. (Thereupon, a recess was taken after which the following further ecechell nes were had:) MR. LEVINE: Before the jury is brought in, I would like to state this proffer--- THE COURT: Wait for the State Attorney. MR, LEVINE: I thought Mr. Stelzer just walked in. I am sorry. : : THE COURT: Have you had a chance to correlate winfictnn 135 1008 24 @ oI Rance: SS those charges yet? MR. ZENOBI: Yes. THE COURT: May I have my copy? Go ahead, Mr. Levine, MR. LEVINE: I would ask Mr. Godwin to make a proffer as to what the testimony of the medical examiner would be. THE COURT: Apparently you have talked to Mr. Godwin. What areas do you feel are inappropriate that cannot be handled by an objection? MR. LEVINE: One area that is particularly inappropriate and not provided for by law is the pain and suffering involved in death by electrocution. THE COURT: What aggravating or mitigating circumstance does that relate to? I think at this stage in the proceedings, that is not an issue. The issue is as relates to aggravating anc mitigating circumstances in this case. MR. LEVINE: That is my position, Judge. THE COURT: All right. You just won it. Argue some more and you will lose it. I do not allow you people to put on that evidence for the purposes of mitigation either. It is obviously for the purposes of inflaming the jury. If you want to put it on, we will preserve the srr 1) sem,,, 136 4309. “Stew You do not remember? % * 1294° ' A That's correct. “ 2 Q Doctor, I think you just testified that there 3 | was a fairly wide latitude in how long a person would be 4 | conscious. 3 A That's correct. y 6 Q Did you talk to any eye witnesses in this case? 7 A Not personally, no, sir. 8 Q You did not consider that in your findings, did 9 you? 10 a No, sir, I did not. 11 Q So you really do not know how long this man 12 remained conscious and how long it took him te die, do you, 13 within a few minutes latitude? It could have been as 14 little as one minute. Is that correct? 15 A That's correct. 16 MR. LEVINE: Excuse me, Soden for one minute. 17 THE COURT: Anything else? 18 _ MR, ZENOBI: No. 19 MR. LEVINE: No further questions. 20 THE COURT: Anything else? 21 MR. GODWIN: No further questions. 22 THE COURT: Call your next witness, please. 23 [Witness excused) 24 MR. STELZER: At this time, the State would rest iy 25 on the penalty phase. aoe We ecrrT Tom i FRIEOMAN [| LOMBARD! 24 @ @ | 1295 ° THE COURT: The defense, please, MR. LEVINE: If we may have one moment. THE COURT: Go ahead. MR. LEVINE: The defense would call Dr. Benjamin Center. e Thereupon: BENJAMIN CENTER was called as a witness on behalf of the Defendant and, having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. LEVINE: Q Could you state vour name for the record, Doctor. A Benjamin Center. Q What is your occupation? A I am in the area of psychology, forensic work, neuropsychology. Q Could you tell the jury what your training is. A Yes. I have a number of degrees. Q What are those degrees? A As a psychiatric social worker, as a special pathologist, as an educational psychologist, optometrist-- eye doctor--and I have a Ph.D in learning disabilities and mental retardation, Q Have you done much forensic psychology or criminal a wa. ae. WO 24 * | J 1296° psychology? A I have done some, yes. Q Tell the jury what your experience is in that area. A Well, I have examined at least, I would say, thirty cases in the last year. Q Within the last year? A Yes. MR. LEVINE: We would proffer this doctor as an expert. Does the State stipulate? THE COURT: He will be received, for the purposes of his opinion, subject to cross examination by the State and the jury's evaluation under the appropriate charges. MR. GODWIN: Could he indicate as to what area he has been proffered under? THE COURT: What is the area of expertise? MR. LEVINE: As a psychologist. THE COURT: Go ahead, please. Q (By Mr. Levine) Did you have occasion to examine a McArthur Breedlove? A Yes. Q Do you see him in the courtroom? A Yes. 152 182 ® : ® 1297 “ Q All right, Doctor. Where did you examine the defendant? A The Dade County Jail. Q How long did you spend with him? A Seven hours, ” Q Seven hours? A Yes. Q During those seven hours, what tests, if any, did you perform on the defendant? A I gave him an intelligence test, an educational achievement test, and the Halsted--- Q Let me interrupt you here, Doctor. Could you tell the jury what that test is? A That is a test that measures the adaptive behaviors of the individual, those particular brain functions related to behavior, ‘ Q Die you perform any other tests? A A Bender-Gestalt and a Rorschach. Q What is the Gestalt test that you mentioned? Could you explain that to the jury. A That is a test comprised of nine diagrams, in which the individual, the subject, copies them, and the information gathered from that is primarily is dhaleetoad in nature. Q What is the purpose of that test, Doctor? A Screening for perceptual difficulties; screening | nme aD collins, LOS do 23 24 & het’ | & 1298° for possible neurological difficulties; screening for intellectual function. Q Doctor, would you tell the jury what the result or results of each test were. A The tests were interwoven, and the results are not something that you just take a piece here and take a piece out there, but together; but, the results of my tests were-- Q Excuse me. Go ahead. A --in terms of the intelligence test, I found McArthur to be in the dull-normal range of intellectual functioning. Q What else did you find? A I found, in examining the particular intelligence test, that he had difficulty with manipulation of thought patterns, concepts; difficulty in remote memory and grasping concepts. Q What did that indicate to you? A Well, £c: bebabetee there was something wrong in understanding what was going on, insight as to the particular moment, at least in terms of the testing mode. Q Did you come to any other findings? A Yes. The other particular ‘uttics, in the additional test, the Halsted neuropsychological test battery, which is, as I mentioned, a test of behaviors. Breedlove 13%7 ai Wiel, . 154 24 25 al v 1299° earned what we call a Halsted impairment of .8, which means eighty percent of the test scores fell in the brain dysfunction range. Q What did that indicate to you? A It indicates he had brain dysfunction. Q Doctor, comparing all of the tests and taking into consideration your interview with the defendant over those seven hours, did you come to an opinion, to a medical certainty, as to whether or not the defendant suffers from an extreme mental or emotional disturbance? MR. GODWIN: Objection. He said, "Based upon a medical certainty.” Q {By Mr. Levine) A psychological certainty. THE COURT: Go ahead, with that change. A Yes. I feel that the information that I have infers that he has emotional problems. ee Q (By Mr. Levine] All right, Doctor. Did you also form an opinion, to a psychological certainty, as to whether or not the PPT P TR has the capacity to conform his conduct substantially to the requirements of the law? Do you want me to repeat the question, Doctor? A Yes. I am having trouble understanding it. Q Did you reach an opinion, to a psychological certainty, as to whether or not the defendant was substantial impaired in his ability to conform his conéuct acR 13% the Shee eeeee 24 * : » 1300° requirements of the law? A He has definite impairment, Q What causes you to Soitaee that he has this impairment? A The neuropsychological test battery; the’ sub-tests that comprise that particular battery. Q Doctor, from what you know about the patient, how would he react tc a stress situation? A In two ways,from the data that'I have. Number one, either he will withdraw, or if he got involved in the stress, he would act inappropriately. Q Doctor, based upon what you observed, could you tell. us what the prognosis for improvement in the defendant's mental condition would be if he were to receive extended and intensive psychiatric treatment in a custodial thing like a prison? bs A I think the prognosis would be favorable. MR. LEVINE: Just a moment. Your witness, Counsel. THE COURT: Cross, please. CROSS EXAMINATION BY MR. GODWIN: Q You are not in a position, is it correct, to offer a medical PSR AES as to whether McArthur Breedlove has any sort of brain damage, are you? @ ® 1301 * No, sir. A Q You mentioned something about brain dysfunctions. A Yeah. Brain dysfunction. Q Can you tell us what you mean by that in layman's terms? of A Right. The test is measuring the behaviors that a person has; behavior like the insight concept and motor skills. Q It does not measure whether or not he has any organic brain problem. Is that true? ‘ A That inference would not be made--- The test has validity in making tiat inference, but I would not make that inference. Q Mr. Levine asked you, and I understood his question to be whether or not you felt Mr. Breedlove was suffering from some sort of an impairment of his mental facilities, so that he could not conform his behavior to the requirements of the law. Is that essentially what you understood the iieekhine to be? A I think I understand that, yes. Q You did prepare a report in this case, did you not? A Yes. Q I believe a three-page report. I show you the copy I have, dated February 28th. 24 & pa: 3 _ 1302° A Yes. Q Did you find that the defendant, McArthur Breed- love, knew right from wrong at the time you examined him? A Yes. MR. LEVINE: Objection. That is not the issue here. THE COURT: Overruled. Qo [By Mr. Godwin] Did you find he was aware of the nature and consequences of the act of murder for which he was charged? A Yes. Q A person who knows right from wrong, who is aware of the nature and consecuences of his acts; a person in that position would be in a position to say, "Yes, I am going to do it," or "No, I am not going to do it," would he not? A I would have to answer that, it would depend if there were brain damace or if you were mentally retarded. You could know right from wrong and still act in a manner that would be inappropriate. | Q Well, we agree you have no evidence Mr. Breedlove suffers from brain damace, correct? Bey I have evidence that he has brain dysfunction. Q But you have no medical evidence that he ietieene from brain damage. Is that correct? A Ne. That's correct. _ 158 4231 i? pay 24 ® | ® 1303° Q And you agree he knows right from wrong. A Yes. Q And you know of nothing in Mr. Breedlove's background that would prevent him from saying, “No” to a criminal act, do you? A I don't know. Q Doctor, in forming your opinion as to Mr. Breed- love's personality problems, emotional problems, I believe you characterized them, did you have an opportunity to read over the confession that he gave in this case? A No. Q The confession cated 11/21/78, acme fi #eseu days after the crime? A No. Q Would you know whether or not, in the confession, he attempted to minimize or dcvi~abaes his part in this crime? A Would I know if he would attempt to do that? Q Would you know whether or not he did attempt to do that in his confession? MR. LEVINE: Objection. He has not rea2 it. THE COURT: Sustained. Q {By Mr. Godwin} Did you talk to any police officers who spoke to Mr. Sreedlove in this case? [aes 159 love 6 ae ) 1304 ° %) ’ A No, sir. ‘a = 2 Q Did you talk to his mother in this case, if you 3 recall? ‘ A His mother did call me on the phone. 5 Q Did you talk to his mother and his brother? 6 A No, I didn't know he had a brother. 7 Q Did you ask his mother or his brother about his 8 behavior immediately after the crime, the night he returned 9 | home? 10 A No. I posed no questions whatsoever to them 1 concerning the case. 12 Q Doctor, do you know what Mr. Breedlove is 13 charged with-- 14 A Yes. 15 Q --and convicted of? 16 A Yeah. First decree murder, as I understand it. 17 Q As well as burglary. Are you aware of that? 18 A Yes. 19 Q He went theo a house, and in the course of a 20 burglary, he stabbed someone to death. 21 A I knew the charges. 22 Q Assuming that orior to going into the house, 23 Mr. Breedlove put something on his hands so as not to leave 24 any fingerprints; assume that after he commit.und the crime ‘os of burglary and then stabbed a person to death, he ran out 1 Ph nao Re a 1333 S ie 24 * 2 1305° the back door and ran two houses down and stole a bicycle and took the bicycle to maxe his escape, would that assist you in forming your opinion as to whether he knew right from wrong and was trying to avoid the consequences of his acts? i MR. LEVINE: Objection. He stated the defendant knew right from wrong. That is not the issue. THE COURT: As relates to the second part of the question, he has answered the second vart of the question, as to whether he knew right from wrong. Q [By Mr. Godwin] You mav answer. A Would you restate that, please? THE COURT: Do those factors aid you in determining whether or not he uncerstood the criminality of his - conduct? THE WITNESS: It might nave been helpful. Q [By Mr. Godwin] Doctor, assuming that after he stole the bicycle and returned to his house, he took off the bloody clothing he had on and disposed of that, and at a later time, disposed of the jewelry he had taken so it could not be found in his >vossession, and assuming he had given a false name the nex= night when stopped by police officers, would that help vou in reaching an opinion as to whether or not Mr. Breeciove knew the criminality of his 1004 rian feng ‘164 OaLe GENORON — ~~ | € t 1306 ° conduct at the time he did it? ey a A I tend to do my evaluations blind, in the sense ’ that I have the charge, and I understand what I am supposed 4 to do. Then I do the examination, and my inferences and 5 conclusions are based only upon those particular findings 6 which I have attempted to obtain as objectively as possible. ? Q I understand that. 8 My question is, would this other information have 9 assisted you in reaching your findings? 10 A I would say possibly. I really don't know. 1 Q Would not these factors f£ just mentioned to you, 12 the flight from the scene of the crime; the fact that he got oa, 13 rid of the bloody clothing; that he got rid of the jewelry; 14 that he gave a false name, wouldn't that indicate a person 1§ conscious of the criminality of his acts and who is 16 consciously trying to avoid detection for his crimes? 17 MR. LEVINE: Objection. 18 Again, asked anc answered, number one; number 19 two, not dieieeaa to the issue here. 20 Right from wrong is not an issue at this hearing. 21 THE COURT: Overruled as it relates to the 22 question you brought up relative to the criminality 23 of his conduct. 7 cat 24 On that basis, I will allow it. ed 25 A Based Sia tee impairment, as I understand it, fakin - 162 139° Rho opaal seyeen es 1307° + ® He would act his behavior would be inappropriate. Would you’say he is a sociopath? Q inappropriate. [By Mr. Godwin] I would say that socially, in terms of his inability to profit from experience, he would probably A be pathological. But would you say he is a sociopath? I am not ready to use the term “sociopath.” ? Q A No. Did you have an opportunity to check into Mr. 8 Q Breedlove's prior background in California? A No, sir. Do you know what psychiatric treatment, if any, Q he received in California? MR. GODWIN: Can you give me one second, Your - No, I co not. A Doctor, would your opinicn as 15 Honor? . (By Mr. Godwin] to whether Mr. Breedlove can appreciate the criminality of 16 Q his conduct, be different if you knew he was in prison in California for at least two years and underwent whatever the rehabilitative services were in the prison; he was re- leased after two years cn parole from a life sentence, and On parole he committed the same crime he has been convicted 23 of today? My opinion would be the same. .h68 A306 24 A No. ecer Tom FRICOMAN TI Lom@ARO! 2, 24 * i e 1308 ° Q Do you think he would do it again? MR. LEVINE: Objection. | THE COURT: Sustained. Anything else? REDIRECT EXAMINATION BY MR. LEVINE: Q Doctor, if you were told that the defendant was declared to be a mentally disordered sex offender in California, would that be inconsistent with anything you found? A No, sir. Q Mr. Godwin asked you whether or not.you had arrived at an opir.onm as to whether he knew right from wrong. Does that have anything to do with whether or not his judgment was impaired? What I am askinc, hietalh: La, if the question is not clear, can somebody know right from wrong and still have impaired judgment anc inability to conform his behavior? A Yes. MR. LEVINE: No further questions. THE COURT: Thank vou. You are excused. (Witness excused] THE COURT: Call your next witness, please. MR. LEVINE: Call Dr. Levy to the stand, please. & ea # & 1309 * THE COURT: Right over here, please, sir. Thereupon: ELI LEVY was called as a itases on behalf of the Defendant and, having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. LEVINE: Q Would you state your name and your occupation, please. A Eli Levy. E-l-i L-e-""-y, psychologist. 1 Could you tell the jury and the Court what your training in the area of psychology is. A I have an undergraduate degree in psychology, as well as graduate work in psychology. I have two years post-doctoral supervision by a licensed psychologist, and I am a board licensed psychologist to practice in Florida. Q What experience do you have in forensic or criminal psychology? A. I have been heavily involved in forensic work since September. I have been appointed to juvenile justice since September. I have been doing evaluations for the court, to assist as to their voungsters mental and emotional status. I have been involved in previous cases of custody, Re) ie y | de eee. d & ¢ 1310° as well as through individual evaluations for lawyers who hired me as a professional. MR. LEVINE: We will proffer Dr. Levy as an expert in the field of psychology. THE COURT: We will allow him to testify as such, of course subject to cross examination on his qualifications. Go ahead. Q (By Mr. Levine] Did you have occasion to examine McArthur Breedlove? A Yes, sir. Q Do you see him in the courtroom today? A Yes, sir. Q Could you tell the jury what if anything your examination consisted of. What did you do? A Well, my examination consisted of an interview through questions and answers, as well as a psychological evaluation. Psychological evaluations consist of test material that we otialidetel the particular human being, and we try to assess their behaviors. For these tests, I spent with Mr. Breedlove about two hours and twenty minutes on two separate occasions. Q Can you tell the jury what tests, specific tests, you gave the defendant. A Okay. I administered the Wexler Adult ees FS'COMAN TI Lome. “80N ct . 166 19 . = 3 err * 1311° Scale, which is basically a test which measures the | mo 2 intellectual capacity if the individual. 3 For this test, we try to assess the tevel- at- which 4 a particular person is functioning; whether or not he 5 understands what is asked of him; whether or not he can 6 experience the environment and understand the environment 7 and respond to the environment; whether or not the. person 8 is responding to the actual things we gave him, or if he 9 is responding to somethine from within him; so, we are 10 trying to assess whether or not this person is reasonably 11 intellectual. | 12 The second test is the Bender-Gestalt, which is “a 13 a series of cards, and the instructions to the testee is, 14 "Please copy these signs as you see them." 15 Through observing the person who is taking the 16 test, we can assess whether or at the person has any kind 17 of neurological impairment, which would be in terms of his 18 ability to copy these designs. : 19 We can esaies whether the person has any kind 20 of mental deficiency by that. 21 Q Let me interrupt you here. Did you bring the 22 tests with you? 23 A No, I have not. in 24 Q Go ahead. las A The third test is the Bender-Gestalt recall. acer swag... YOA0 FRicOMAN TLomeAno:* — - & e 1312° Basically, after we give him these designs, we take them fe . away, and we ask him to put them down from memory, and . we can assess whether or not the person has good recall - of immediate things that happened. ° The third thing we have given them is called the . House-Tree-Person test. It has to do with--we ask the 7 person to draw a house. After they draw the house, they 8 draw a tree, and after he finishes the tree, they draw a person. If he draws a male first, we ask him, "Is it 10 male or female?" If he says it is a female, we ask him "1 to draw a person of the opposite sex, for through this 12 test we are able to assess personality and perception. 13 This is a projective technique, whereby we tell 14 them to draw somethinc, but they do not know what we are 1S | after in this drawing. 16 We feel they reflect to us and express to us their 17 own thinking, feeling and the way they deal with themselves 18 as well as with other people, as well as with external 19 environments. | 20 After we give them the achromatic pencil and 21 paper, we give them the same thing, but use colors. The 22 philosophy behind the cclors is personality. We associate 23 colors with emotions, and the colors the person uses will seit 24 help us to understand some of his feelings for the moment. 25 After he finished drawing a house, tree, and a vr eines - 168 1044 24 some of his own thinking, his feelings, and the way he * e 1313 ° person, and the person of the opposite sex, we compare his drawings with the pencil in relationship to his drawings with color, and through that, we are able to assess further the areas of difficulties; reminding you that a psychologist is basically trying to have samples of behavior, trying to understand the person from as many points of view as possible). If you are able to use these instruments, you are sampling what the person is thinking, feeling, and how he acts. The other test I have given him is the Rorschach, which is what we call again a projective technique. It is a series of ten cards. On each card there is an ink blot, and the instructions for the person are, "I would like you to look at these cards anc tell me what you see, what it looks like to you. Hold it as long as youwant. When you finish, I will give you the next one." Through projective techniques, we are hoping that the person projects, in other words, out into the ink blot, relates to the environment. These are the tests that I have administered to Mr. Breedlove. Q Doctor, based upon these tests, aus you able to draw any conclusions? A Yes, ecrrT Tom 2 FRIECOMAN TI LOMBARO! DALE Gennnon & | i e 1314° Q Can you tell me what those are. A The conclusions that I was drawing from them were, first of all, I believe that Mr. Breedlove is suffering from neurological impairment. I think, through this testing, I was able to assess that he has an organie deficiency, which I believe is affecting--- Q Can you explain to the jury what neurological impairment is in layman's terms. A Neurological impairment--remin@ing you that the brain is the center of all our life up here. We feel,we see, we touch, we smell, the whole of all our being and existence is in the mind and the brain. When:the brain is damaged, meaning that some portions of the brain, meaning the cells, have been damaged. In other words, certain parts of the brain are not functioning as well as they could function if that damage did not exist. ’ As a result of that damage--it depends on where it is, too--the person would be affected by this impair- ment. For example, if a person is or has damaged a certain part of his brain, he would be unable to abstract. A person damaged in the abstract part of his brain would find it very difficult to grasp something Mimesauk Other parts of the brain might be damaged where eerr Tow 1'70 n PRICOMAN T] LOM@AROt , : 13 R ig | © | e@ 1315° 1 the person would have a difficult time copying simple 2 | geometrical designs. From what he sees and what he does, 3 you see a great discrepancy. whey don't look the same. 4 | Okay. 5 Q Did you have a chance, during your interview 6 | with the defendant, to go into his past history relating to 7 | drugs? 8 A Yes. 9 In my discussion with Mr. Breedlove, he shared 10 with me that he has a history of drug use. If I recall 11 correctly, he told me that since the age of sixteen, he was 12 using drugs, the whole gamut of drugs, and the last thing 13 I remember, he was saying that the night of the alleged crime, 14 he was using cocaine and mescaline. 15 Q With his professed history of drugs, is that 16 consistent or inconsistent with the test results that you 17 received? 18 A It's consistent with the test results I received, 19 because I think Mr. Breediove is also suffering from a 20 schizoohrenia, which is a form of mental disturbance. 21 By "schizophrenia," we mean a split personality, 22 but the person isn't really split. What is split is his 23 thinking, feeling, and acting level. In ather words, the 24 three are not synchronized together. 25 Do you follow me? The person might feel one thing Bert ae s 171 44 3 & | ©@ 1316° and the way he acts is not congruent. ‘They are not together. Furthermore, I found him to have also some depressive tendencies. A person who is feeling very lonely, a person who fells rejected, a person who feels persecuted by the external environment, given these kinds of feelings perceived, the person will be using drugs to try to somehow or another cope with his feelings of inadequacy, poor perception of themselves, and their basic inability to do well with their lives, but to use such drugs coincides with my diagnosis of him, Q During your examination with the defendant, did you go into the previous psychiatric treatment he received? A He told me that while he was in California, he was in group therapy anc he was receiving psychiatric treatment. ; Q The fact that he has this impairment, or you mentioned schizophrenia, is all of this consistent with a long-standing mental illness, what you observed? A Yes. Q Did he relate to you how he got along with the other people? How he related to the other people? A My impression of Mr. Breedlove is that he is a person who is basically a loner; a person who is afraid to get involved with other people. ser b= ROR: AAS 24 8 | ; a 1317° Basicrily I ied him as a person who has a very inadequate self perception. He basically doesn't think he is worthy of other human's companionship. According to him, he spent most of his time alone. He tried to stay out of the way of other people, so to speak. T asked him whether or not he was married. He suggested to me that he had never been married. He lived with her for a while, but he never had a long-standing relationship with another human being of the opposite sex. Q Did you have any indication at all that the defendant was malingering? A What do you mean? Q That he was faking a psychiatric illness at all? A No. , Q Based upon your evaluation of the defendant, are you able to reach an opinion, to a reasonable degree of psychological buiunianie, as to whether or not the defendant is suffering from an extreme mental or emotion disturbance? A Yes. Q What is that cpinion? A I think Mr. Breedlove is a ae echizophrenic in remission, meaning that at the present time, he is not acting out his illness. - cre BERT Tom a 4345 & | | a 1318 ° I would like to remind the Court that during the ~*~ 2 time I examined him, he was under drugs, under medication, ° and even under medication, his personality decompensation 4 came through; so, left alone, if he was not under medication, 5 I believe I would have seen a much greater example of his pathology. ? Q What medication are you referring to? Do you 8 recall what he was taking? 9 A I don't recall. I think he was taking some 10 | Stelazine. I don't recall. 11 Q If I told you he was taking Mellaril, what would 12 | the results of Mellaril be? 13 A I am not a psychiatrist. I can't answer the 14 question. 15 Q I will withdraw the question then. 16 Did you reach an opinion, to a reasonable 17 psychological certainty, as to whether or not the defendant's 18 ability to conform his behavior to the requirements of the 19 law was impaired? 20 A When? 21 Q When you interviewed him? 22 A No. I think that the defendant was aware of his 23 actions during the time that I interviewed him. ste. 24 I think he was competent in the way he responded 25 to me. I aid not feel that he was in any way disorganized Dine t: 24 3 - 1319° at that time. Q And you, of course, noted that he knows right from wrong. Is that correct? A Yes. Q Could you tell us how a person Who exhibited these symptoms that the defendant has exhibited would react to a stress situation. A Well, I find my experience with this population is that unless they are on medication, I find them to be very fragile, even when on medication. It doesn't take very much stress to get them decompensated, meaning to get them acting bizarre and irrational. I find Mr. Breeclove a person who is emotionally unstable, and I do not believe that under stress conditions, he can. stand up very well.He would be unable to cope with it, given my understandinc of where he is at. Q When you interviewed the defendant, did he exhibit what is known as a "Flat effect"? A Yes, Q Would you explain to the jury what you mean by that. a Well, you try to see what the person is like. You look at him, observe his movements; observe his eye contact; his manner of speech; how does he talk and relate to you; ecrr Tom “SG 475 1358. 24 ¢ ¢ 1320 ° does he look at you; is he afraid of coming closer; if you lean forward, does he move away from you. The feeling I got from Mr. Breedlove is of feelings of distance, somewhat. A person who just related his feelings in a monotonous, kind of a flat, straight-kind of effect. In other words, there was no change, that I could observe. While I was relating to him, he was basically a blah. You know, all along, even though the things we discussed were different, yet his responses emotionally had the same kind of quality. MR. LEVINE: No further questions. THE COURT: Cross. CROSS EXAMINATION BY MR. STELZER: Q Doctor, in response to one of Mr. Levine's | questions, you said, "That is not within my area of Ga ieme I am not a doctor." Is that correct? A No, no. I said, "I am not a physician and I do not prescribe the medication." Q You never went to medical school? A True. Q You are not a doctor of medicine. A True. Q You are not a licensed or board certified psychiatrist, are you? ees ecrr Tom ; eo FeICOMAN TI LomeARO! O49 CALE Grnofon 24 e @ 1321° A No. I am a licensed psychologist. Q All right. Dr. Center, who has just testified, are you acquainted with him? : A Yes. Q He too is a psychologist and not a psychiatrist, correct? MR. LEVINE: Objection as beyond the scope of what he knows. THE COURT: If you know. A [No response] Q [By Mr. Stelzer] You have to answer out loud so he can write down "yes" or “no”. A Would you repeat the question. Q Dr. Center is not a psychiatrist. A True. Q He did not go to medical school either. A True. Q He cannot prescribe any medicines either. A True. Q Are you acquainted with Charles Mutter and Albert Jaslow? A With Mutter, yes; Jaslow, no. Q Dr. Mutter is a psychiatrist, is he not? A Yes, sir. Q He did go to medical school. recsmo 477 4950 24 “* A Yes. Q He can prescribe medicines. A Correct. Q He is well known as being an expert. He has testified many, many times in the courts. and the criminal courts of Dade County. A To my knowledge, yes. Q How many times have you testified as an expert in these courts in this building? A This is the first time. Q You have never previously testified as an expert in this building? A No. Q You made some mention about having some knowledge of Mr. Breedlove's activities in California. Is that correct? A Yes. Q Did you ever examine any of the police reports from the incidents in California ‘that the defendant was involved in? ip A I asked for from the public defender's stein to send me all information on Mr. Breedlove. I have not received that kind of information. Q You mean Mr. Levine and Mr. Zenobi did not provide you with the information about these California incidents? a a 1322° 24 MR. LEVINE: I will object. 1323° We have not been provided with the police reports, and he deliberately vatuoud.. aot we had a pre-trial hearing on this, Judge. This was denied us. MR. STELZER: Most respectfully, that is untrue. THE COURT: Go ahead. Q [By Mr. Stelzer] Is it not a fact that you have never looked at any of the reports of what Mr. Breedlove did in California? A True. Q You do not know then that he has been convicted of two counts of assault with intent to commit rape and a burglary with assault on somebody inside, do you? A No. Q You do not know any of the results ad any of the tests that were administered to him at the time he committed these crimes in California, do you? A True. Q You do not know then that he was sentenced to one to twenty years and five to life for those “ifferent crimes he committed? A No. Q You do not know then that he absolutely was not Geclared insane or impaired back in California. le 179 1082 A True. 1324 ° ' Q Did you look at any of the police reports in Be 2 this case, the reports of the Dade County Public Safety 3 Department Homicide Section? 4 AS We. 5 Q Did you look at any of the statements, sworn 6 statements, of witnesses in this case, who observed the 7 | defendant's behavior around the time he committed this 8 | crime? 3 A No. 10 Q Did you look at the confession or statement that 11 the defendant gave in this case to see what type of mental 12 attitude he may have had when he committed this murder? 13 A No, 14 Q Were you aware of the fact that in order to keep 15 himself from being caught, the defendant stated that he 16 wore socks on his hands to keep from leaving fingerprints 17 in this case? 18 A No. 19 Q Were RE oa that in an effort to conceal 20 himself and escape this crime, he stole a bicycle from a 21 twelve year old child and rode it off after he committed 22 the murder? 23 A No. a. 24 Q Were you aware that in order to keep the police 25 from finding any blood on his clothing, immediately after sid 24 5 y murder he took a razor blade and hacked off his pants and 1325 ° threw the remainder of his pants in a Dempsey Dumpster to get rid of them? A No. MR. LEVINE: Objection as irrelevant for the purposes of what this witness is offered for. He is testifyinc as to the results of psychological tests. The State Attorney knows that is his field of expertise. THE COURT: Overruled. Q (By Mr. Stelzer] Were you aware that in order to escape detection, he tock one of the watches or both of the watches he stole in this case and sold them to a junkie or dope fiend, as he refers to them, up in Hallandale or Hollywood, Florida? A No. Q Are you aware that when approached by the police some three days after committing this murder, tne defendant further attempted pe conceal his involvement in this crime by giving the police a phoney name? A No. Q Don't these things become at least somewhat relevant to you in assessing the Ab Senkine'n: manvad makeup at the time of the crime? A Yes and no. Let me answer both questions. palette 281 1004 1 Q All right. 1326 ° 7 2 A Yes, in terms of helping me to understand the 3 kind of behaviors that “Mr. piuetisee Le capable of. 4 Secondly, I think to some degree, I have not 5 | been biased by this kind of a background. 6 My information was seen from a non-biased 7 standard. In other words, a pre-conceived notion of what 8 this person was all about. I was looking at what I got, 9 and what I got was based on my clinical understanding and 10 impression of Mr. Breedlove, and on his actual behaviors, 11 what they manifested to me through firsthand experience and 12 me evaluating him. — 13 I am not questioning whether your data is correct 14 or wrong, but the only thing I can say is what my impression: 15 were at the time I had examined him, and I honestly 16 believe that my evaluation of him is based on what I saw 17 during our sessions. 18 Q Certainly in order to assess his behavior at the pe time this héinahed, you would have wanted to see as many 20 accounts as possible of his behavior at the time he did 21 this, would you not? 22 A Given I did not have this kind of information, I 23 had to go on what I have. What I have is a huinan being who o> 24 is in front of me, and I nave been hired by the public 25 defender's office to examine him and to give my expert eler 2 1ae 24 opinion. 1327 ° Q You were hired by the public defender's office to come in here today, and that is Mr. Zenobi and Mr. Levine. A Yes. Q They were the ones that did not provide you with these documents that may have assisted you in forming your opinion. Is that right, sir? A It looks that way. Q Would it be fair to say that the defendant is a sociopath, with simply an anti-social personality? A I would not accept that diagnosis of him. Based on, again, my evaluation of him and based on my clinical observation and feelings about the case, I do not believe Mr. Breedlove is a sociopath. I think he is suffering from an organic deficiency, as well as a paranoid schizophrenic condition. S Q Did you draw that opinion, Doctor, from his sketch of the house, his sketch of the tree, or his sketch of the stick sidieel A All of the above, as well as from his performance on the rest of the tests. None of my impressions were based on a single drawing or a single test. They come from damp tuib that I have drawn through these tests of his behavior and looking at his test profile, and I made that assessment of him. riapwcin- 293 1956 es @ | . 1328° Q It is your testimony that you can develop, at least a preliminary psychological and personality perception of anyone on this jury based on the way they draw a picture of a house, a tree, and a person? MR. LEVINE: Objection. THE COURT: I am sorry, Counsel. MR. STELZER: The question was, "Can you develop a personality profile of anyone, including someone on this jury, based on a drawing of a house, a tree, or a person," MR. LEVINE: Objection as to referring to any members of the jury. THE COURT: Talking about anybody. Q (By Mr. Stelzer) Forgetting about the jury, it is your testimony that you can get a basic psychological diagnosis from anybody, from the way a person draws a house, a tree, or the figure of a person? A Not by itself. I would be getting out of the test some deb epani alia: I would net be willing to say I would be able to have a definite position on their personality based on that test. Only I would have to have other instruments to assess them, 3 Q You made mention of having examined several youngsters. I believe that was your word. The defendant is =, | > 484 107 24 not a youngster, is he? 1329° A He is a human. All humans show the same common denominators of behaving, feeling and thinking. Q My question was, is this man a youngster? A I gave the way I felt. He possessed young traits. He is not a youngster. Q He is 3l. Q That does not make him an adult psychologically. Q You testified, Doctor, that you found neurological impairment. Is that correct? | A [No response] THE COURT: Answer out loud. A Yes, sir. I am sorry. I think I am in therapy. Q (By Mr. Stelzer) You are not a medical doctor-- Rod No, I'm not. Q --specializing in neurology. A True. Q In order to determine the actual existence of any neurological impairment, should such impairment exist, that opinion would have to be given by a neurological specialist who is a doctor, a physician, correct? A Very true. I made that recommendation in my report. Q You recommended to Mr. Zenobi and Mr. Levine that they should seek a neurological study of the defendant? ae eet 185 1008 24 ® ? ° 1330° A True. Q Do you have any indication that they went ahead and got a neurological study done of this defendant? 7 No. Q Did the defendant ever teli you that anybody forced him to take any illegal drugs? A No. Q I believe your report says that Mr. Breedlove's overall behavior during the testing sessions was adequate. Is that true? A [No response] THE COURT: That is a "yes"? THE WITNESS: Yes. Q (By Mr. Stelzer] And vou indicated he responded well to the tasks at hand. A Yes. Q And he was oriented in terms of place and persons. A Yes. Q He has difficulty in conversation and he has distractability? A Yes. Q You also note that he has difficulty in visual acuity and visual motor coordination. Is that right? A Yes. Q Would your opinion on that change if you knew that nina Tietinn| . 4286 ‘tov h 24 on November 6, 1978, in a pitch black room, he was able to take this butcher knife and plunge it into the chest of aman, missing his heart by only an inch and a half or so? Would it change your opinion as [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_IA40385010_1288%3A2. Public record. Not legal advice.