Jeffrey Lee Atwater vs. State of Florida - Supreme Court

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No.______________

IN THE SUPREME COURT OF THE UNITED STATES

JEFFREY LEE ATWATER,

PETITIONER

VS.

STATE OF FLORIDA,

RESPONDENT.

APPENDIX

JULIE A. MORLEY Counsel of Record

JAMES L. DRISCOLL TRACY M. HENRY

LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION

12973 N. TELECOM PARKWAY TEMPLE TERRACE, FLORIDA 33637

PHONE NO. (813) 558-1600 FAX NO. (813) 558-1601

Email: [email protected]

mailto:[email protected]

INDEX TO THE APPENDICES

Appendix A: The unreported opinion of the Circuit Court in and for Pinellas County denying Successive Motion for Postconviction under Florida Rule of Criminal Procedure 3.851, issued July 25, 2019. ............................................................. App 001

Appendix B: The unreported opinion of the Circuit Court in and for Pinellas County denying Defendant’s Motion for Rehearing, issued September 4, 2019. .......... App 007

Appendix C: The opinion of the Supreme Court of Florida affirming the denial of postconviction relief, reported at Atwater v. State, 300 So. 3d 589 (Fla. 2020). ........... ............................................................................................................................. App 011

Appendix D: The opinion of the Supreme Court of Florida affirming the judgment and sentence, reported at Atwater v. State, 626 So. 2d 1325 (Fla. 1993). ..................... ............................................................................................................................. App 015

Appendix E: The opinion of the Supreme Court of Florida affirming the denial of postconviction relief, reported at Atwater v. State, 788 So. 2d 223 (Fla. 2001). ........... ............................................................................................................................. App 022

Appendix F: Transcript from guilt phase closing arguments of trial proceedings on May 2, 1990. ........................................................................................................ App 036

Appendix G: Transcript from postconviction evidentiary hearing proceedings on September 11, 1998. ........................................................................................... App 097

Appendix H: Affidavit of Jeffrey Lee Atwater, executed April 26, 2019. ........ App 216

Appendix A: The unreported opinion of the Circuit Court in and for Pinellas County denying Successive Motion for Postconviction under Florida Rule of Criminal Procedure 3.851, issued July 25, 2019.

App 001

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

CRIMINAL DIVISION

STATE OF FLORIDA, CCRC. MIDD LEcASE NO.:

v. JUL 2 9 2019 ~~~ION:

AECEIVEDBY JEFFREY L. ATWATER, Person ID: 967807, Defendant. ____________ ./

89-13299CF ANO 521989CF013299XXXXNO D

ORDER DISMISSING DEFENDANT'S FIFTH SUCCESSIVE MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE (MCCOY V. LOUISIANA)

ORDER DENYING DEFENDANT'S MOTION TO STAY PROCEEDINGS AND SCHEDULING OF CASE MANAGEMENT CONFERENCE

TIDS MATTER is before the Court on Defendant's fifth "Successive Motion to Vacate

Judgment of Conviction and Sentence (McCoy v. Louisiana)" filed May 3, 2019, pursuant to

Florida Rule of Criminal Procedure 3.851, and "Defendant's Motion to Stay Proceedings and

Scheduling of a Case Management Conference" filed June 10, 2019. 1 The State filed its "Answer

to Defendant's Fifth Successive Motion for Postconviction Relief'' on May 23, 2019, and the

"Office of the Attorney General's Response to Atwater's Motion to Stay Proceedings and

Scheduling of a Case Management Conference" on June 20, 2019. Having considered the

motions, answer, response, record, and applicable law, the Court finds as follows:

PROCEDURAL HISTORY

On May 4, 1990, a jury found Defendant guilty of first-degree murder and, after the

penalty phase trial, recommended death by an 11-1 vote. On June 25, 1990, the Court sentenced

Defendant to death. The Florida Supreme Court affirmed his conviction and sentence, and the

mandate issued on or about December 29, 1993. Atwater v. State, 626 So. 2d 1325 (Fla. 1993).

Defendant petitioned the United States Supreme Court for a writ of certiorari, which the Court

denied on April 18, 1994. Atwater v. Florida, 511 U.S. 1046 (1994).

Defendant filed several postconviction motions in state and federal court, each of which

was denied and affirmed on appeal. See Atwater v. State, 788 So. 2d 223 (Fla. 2001); Atwater v.

1 The Court first became aware of the fifth successive motion on June 25, 2019, when the clerk forwarded a copy of the Attorney General's response to Defendant's motion for a stay.

App 002

State v. Jeffrey L. Atwater, 89-13299CFANO

State, 892 So. 2d 1011 (Fla. 2004); Atwater v. State, 6 So. 3d 51 (Fla. 2009), cert. denied,

Atwater v. Florida, 558 U.S. 846 (2009); Atwater v. State, 118 So. 3d 219 (Fla. 2013); Atwater v.

State, 234 So. 3d 550 (Fla. 2018), cert. denied, Atwater v. Florida, 139 S. Ct. 182 (2018); see

also Atwater v. Crosby, 451 F. 3d 799 (11th Cir. 2006), cert. denied, Atwater v. McDonough,

549 U.S. 1124 (2007). He now files this fifth successive rule 3.851 motion alleging that the

United States Supreme Court established a new fundamental constitutional right in McCoy v.

Louisiana, 138 S. Ct. 1500 (2018), that requires this Court to vacate his conviction and sentence,

and grant him a new trial.

ANALYSIS

RULE 3.851 MOTION

The Court notes initially that Defendant's motion is successive and untimely. Rule

3.85l(d)(l) requires that "[a]ny motion to vacate [a] judgment of conviction and sentence of

death shall be filed by the defendant within 1 year after the judgment and sentence become

final." Fla. R. Crim. P. 3.851(d)(l). The rule provides thatajudgment and sentence become final

on the United States Supreme Court's disposition of a petition for writ of certiorari seeking

review of the Florida Supreme Court's decision on direct appeal. Thus, in this case, Defendant's

judgment and sentence became final on April 18, 1994. See Atwater, 511 U.S. 1046. Under rule

3.85I(e)(2), a "claim raised in a successive motion shall be dismissed if the trial court finds that

... the claim fails to meet the time limitation exceptions set forth in subdivision (d)(2)(A),

(d)(2)(B), or (d)(2)(C)." Fla. R. Crim. P. 3.85I(e)(2); see also Byrd v. State, 14 So. 3d 921, 924

(Fla. 2009) (noting that for a "successive motion for postconviction relief to be reviewed on the

merits, [the] claims must meet the requirements of rule 3.85I(d). That is, each claim must be

based on either (1) [newly discovered evidence] or (2) a 'fundamental constitutional right' that

was not previously established, [and] 'has been held to apply retroactively'") (quoting Fla. R.

Crim. P. 3.85I(d)(2)).

Here, Defendant contends that the motion is timely under subdivision (d)(2)(B), which

requires that the motion be based on a fundamental constitutional right that was not established

within one year after the defendant's judgment and sentence became final, and that has been held

to apply retroactively. See Fla. R. Crim. P. 3.85I(d)(2)(B); see also Walton v. State, 3 So. 3d

1000, 1005 (Fla. 2009) (noting that rule "3.85l(d)(2)(B) requires any motion to vacate [a]

judgment of conviction and death sentence to be filed within one year after the judgment and

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App 003


sentence become final unless the motion alleges that a fundamental constitutional right, held to

apply retroactively, was established after that period"). Defendant alleges that the .United States

Supreme Court established a new fundamental constitutional right in McCoy v. Louisiana, 138 S.

Ct. 1500 (2018), and contends that the structural error present in McCoy is also present in this

case. Notably, Defendant does not address the retroactive application requirement of subdivision

(d)(2)(B); however, as the State correctly argues, neither the Florida nor the United States

supreme courts have held that McCoy applies retroactively. As such, the Court finds Defendant's

fifth successive motion fails to meet the time limitation exception set forth in rule

3.85l(d)(2)(A). See Fla. R. Crim. P. 3.851(d)(2)(B); Walton, 3 So. 3d at 1005. Therefore, in

accordance with rule 3.851(e)(2), the Court must dismiss the motion.

Additionally, the Court notes that even if the motion was timely, it would have been

denied as without merit. In McCoy, the Court considered "whether it is unconstitutional to allow

defense counsel to concede guilt over the defendant's [adamant] and unambiguous objection."

McCoy, 138 S. Ct. at 1507. The Court found that it did. Specifically, "the defendant vociferously

insisted that he did not engage in the charged acts and adamantly objected to any admission of

guilt." Id. at 1505. The Court held that under these circumstances, the client's autonomy rather

than counsel's performance is at issue. Id. at 1511. Thus, the Strickland standard is inapplicable.

Id. at 1510-11. Instead, the "[v]iolation of a defendant's Sixth Amendment-secured autonomy

ranks as error ofthe kind [the Court's] decisions have called 'structural'; when present, such an

error is not subject to harmless-error review." Id. at 1511.

Defendant is correct that whether or not counsel's actions are considered sound trial

strategy is irrelevant under McCoy because when counsel overrides a defendant's autonomy to

decide the objective of his defense, it is per se reversible error. McCoy, 138 S. Ct. at 1511. But

his own allegations and sworn testimony establish that this case is distinguishable from McCoy.

Specifically, throughout the fifth successive motion, Defendant refers to his prior allegations and

evidentiary hearing testimony from his original rule 3.8502 motion that he would not have agreed

to defense counsel's concession of guilt and had there been a discussion about conceding guilt,

he would have told his attorneys not to do it. Additionally, attached to the fifth successive motion

is Defendant's sworn affidavit dated April 26, 2019. In paragraph 8, Defendant states that the

first time he learned his trial attorneys planned to concede his guilt was during the rebuttal

2 At the time the initial motion was filed, rule 3.851 had not yet been created.

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App 004

I t ~ ..

State v. Jeffrey L. Atwater, 89-l 3299CFANO

closing arguments when the concession was made. Similarly, in paragraph 12 he states, "The

strategy of conceding my guilt in hopes of a lesser charge or avoiding the death penalty was

never discussed with me. If my attorneys had told me about this strategy beforehand, I would not

have agreed to it." (See Attachment 2 to Defendant's Fifth Successive Motion). Thus, unlike the

defendant in McCoy, here Defendant never expressed to his lawyers that his objective was to

insist that at no point during the trial were the attorneys to make any concession of Defendant's

guilt. It cannot be said that trial counsel violated Defendant's right of autonomy when they were

never made aware of his alleged objective to make no concessions of guilt. See McCoy, 138 S.

Ct. at 1512 (noting that once McCoy "communicated [his objective] to [the] court and counsel,

strenuously objecting to [counsel]'s proposed strategy, a·concession of guilt should have been off

the table") ( emphasis added).

Defendant's allegations, as the State correctly points out, would be controlled by the

analysis in Florida v. Nixon, 543 U.S. 175 (2004), rather than McCoy. As the Supreme Court

explained:

Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defense objective, for Nixon never asserted any such objective. Nixon "was generally unresponsive" during discussions of trial strategy, and "never verbally approved or protested" counsel's proposed approach. Nixon complained about the admission of his guilt only after trial. McCoy, in contrast, opposed [counsel]'s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.

McCoy, 138 S. Ct. at 1509 (citations omitted). Like McCoy, Defendant never asserted his

objective to counsel and it was not until after trial that he expressed any dissatisfaction with

counsel's concession.

Defendant attempts to distinguish Nixon contending that he never had the opportunity to

object to counsel's strategy because at no time before or during trial did his attorneys ever

discuss the strategy with him. He alleges that had he known counsel planned to concede his guilt

to the lesser charge of second-degree murder, he would have "adamantly objected." But, as

Defendant (at least impliedly) acknowledges, he did not "vociferously insist[] that he did not

engage in the charged acts [or] adamantly object[] to any admission of guilt." McCoy, 138 S. Ct.

at 1505. Thus, even if Defendant's motion was timely filed, Strickland rather than McCoy would

apply to this claim. Nixon, 543 U.S. at 192.

4 of5

App 005

. .. .. State v. Jeffrey L. Atwater, 89-J 3299CF ANO

Finally, Defendant also raises a claim of cumulative error. The Court declines to address

this claim because it is untimely and the motion must be dismissed in its entirety under rule

3.851(e)(2).

MOTION TO STAY PROCEEDINGS

Rule 3.851(f)(5)(B) requires the trial court to hold a case management conference within

thirty days after the State files its answer to a defendant's successive postconviction motion. As

noted above, the Court did not even become aware of Defendant's motion or the State's answer

until after thirty days had elapsed from the filing of the answer. Nonetheless, defense counsel

requests the stay of proceedings due to her previously scheduled maternity leave from June 14,

2019, through September 20, 2019. Based on the Court's finding above that the rule 3.851

motion is untimely and does not meet an exception to the one-year filing requirement, the Court

finds that a stay of the proceedings is unnecessary. As such, the motion to stay is denied.

Accordingly, it is hereby ORDERED AND ADJUDGED that:

1) Defendant's fifth Successive Motion to Vacate Judgment of Conviction and Sentence (McCoy v. Louisiana) is DISMISSED.

2) Defendant's Motion to Stay Proceedings and Scheduling of a Case Management Conference is DENIED.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this

__ day of July, 2019. A true and correct copy of this order has been furnished to the parties

listed below. ORIGINAL SIGNED

JUL 2 5 2019 JOSEPH A. BULONE

CIRCUIT JUDGE

££:. Office of the State Attorney Attn. Sara Macks, Esquire

Marilyn Beccue, Esquire Office of the Attorney General Concourse Center Four 3507 E Frontage Rd Ste 200 Tampa, FL 33607-7013

5 of5

Joseph A. Bulone, Circuit Judge

Julie A. Morley, Esquire CCRC - Middle Region 12973 N Telecom Pkwy Temple Terrace, FL 33637-0907

Jeffrey L. Atwater, DC# 120467 Union Correctional Institution P.O. Box 1000 Raiford, FL 32083

App 006

Appendix B: The unreported opinion of the Circuit Court in and for Pinellas County denying Defendant’s Motion for Rehearing, issued September 4, 2019.

App 007

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

CRIMINAL DIVISION

ST ATE OF FLORIDA,

v.

JEFFREY L. ATWATER, Person ID: 967807, Defendant. --------------"/

CASE NO.: UCN: DIVISION:

89-13299CF AN 0 521989CFO 13299XXXXNO D

ORDER DENYING DEFENDANT'S MOTION FOR REHEARING

THIS MATTER is before the Court on Defendant's Motion for Rehearing filed August 7,

2019, pursuant to Florida Rule of Criminal Procedure 3.851 (f)(7). He seeks rehearing of his fifth

Successive Motion to Vacate Judgment of Conviction and Sentence (McCoy v. Louisiana) filed

May 3, 2019, which the Court dismissed as untimely on July 26, 2019. The Court did not hold a

case management conference before dismissing the motion. Having considered the motion for

rehearing, court file, record, and applicable law, the Court finds as follows:

Defendant contends that the Court violated his right to due process when it dismissed his

fifth successive motion without first holding a case management conference as required by rule

3.851(f)(5)(B). The Florida Supreme Court rejected this claim in Rivera v. State, 260 So. 3d 920,

926-27 (Fla. 2018), noting that it has "repeatedly emphasized that the failure to hold a [ case

management conference] on legally insufficient or meritless successive postconviction motions is

harmless error." Id. at 926. See also Archer v. State, 151 So. 3d 1223 (Fla. 2014) (Table) (finding

that because Archer' s successive postconviction claims "were insufficiently pleaded, facially

insufficient, and untimely, .. . the circuit court' s failure to hold a case status conference pursuant

to [rule] 3.851 (f)(5)(B), or a hearing pursuant to Huffv. State, 622 So.2d 982 (Fla.1993), was

harmless error"); cf Marek v. State, 14 So. 3d 985, 999 (Fla. 2009) (holding that the "failure to

hold a hearing on a successive postconviction motion that is legally insufficient on its face is

harmless error"). Defendant has not presented any law or argument contrary to the cases cited

above. As such, the Court declines to grant rehearing based on this claim.

Next, Defendant contends that in dismissing his motion, the Court "went beyond the issue

of timeliness and made findings of fact without assuming [his] factual allegations to be true." He

App 008


concludes, therefore, that the Court violated his rights to due process and equal protection when it

made findings of fact and "delved into" the merits of the motion. The Court disagrees. Defendant

does not specify any findings of fact that this Court allegedly made in its order dismissing the fifth

successive motion and this Court's review of the order has uncovered none. Rather, the Court's

dismissal was based solely on its legal conclusion that Defendant's motion was untimely and failed

to set forth an exception under rule 3.85l(d)(2) to the one-year filing limit. The Court also noted

"that even if the motion was timely, it would have been denied as without merit." In its ensuing

discussion of the merits, the Court did rely on certain facts; however, these facts were derived

solely from Defendant's fifth successive motion and its attachments. Thus, Defendant has failed

to establish that this Court overlooked or misapprehended the facts or law in dismissing his motion.

As to the issue of timeliness, Defendant contends that his fifth successive motion is timely

because he met the exception under rule 3.851(d)(2)(B). Specifically, he argues that the nature of

the error he suffered 1 is "inherently retroactive." However, to establish this exception, the rule

requires that the fundamental constitutional right asserted "has been held to apply retroactively."

Fla. R. Crim. P. 3.851 (d)(2)(B) (emphasis added). Assuming arguendo that a new fundamental

constitutional right is inherently retroactive, the rule on its face would require that a court has

already recognized the inherently retroactive nature of the right and held that such right be applied

retroactively. The Court finds that Defendant has failed to establish that this Court overlooked or

misapprehended the facts or law in determining that his fifth successive motion is untimely.

Further, Defendant acknowledges that the issue of retroactive application of McCoy will

ultimately be made by the Florida Supreme Court, but argues that McCoy should apply

retroactively under the fundamental fairness approach of James v. State, 615 So. 2d 668 (Fla.

1993), and Witt v. State, 387 So. 2d 922, 926 (Fla. 1980). He also contends that Federal law

requires this Court to apply McCoy retroactively. Essentially Defendant asks this Court to

analyze- under State and Federal law- whether McCoy should be held to apply retroactively and

to determine that it should. The Court declines to do so and, instead, relies on the plain language

of rule 3.851(d)(2)(B) that "[n]o motion shall be filed or considered pursuant to this rule if filed

beyond the time limitation provided in subdivision ( d)( 1) unless it alleges . . . the fundamental

constitutional right asserted was not established within the period provided for in subdivision

1 He claims that counsel's concession of guilt was a structural error that amounted to the "wholesale denial" of his right to trial.

2 of3

App 009

I'


(d)(l) and has been held to apply retroactively." Fla. R. Crim. P. 3.851 (d)(2)(B) (emphasis added).

Accordingly, Defendant has failed to demonstrate that this Court overlooked or misapprehended

the facts or law in dismissing his motion as untimely.

In closing, Defendant also states that if there remains any issue regarding the retroactive

application of McCoy, this Court should grant rehearing but stay the proceedings until the Florida

Supreme Court has decided the matter of Poole v. State, SC18-245. He alleges that Mr. Poole

raised "a McCoy issue" and "[i]nevitably, the Florida Supreme Court will decide whether McCoy

applies retroactively to cases that have become final on appeal." The Court notes that this argument

for granting a stay based on Poole was not raised in the fifth successive motion and, as such,

inappropriately raises a new claim on rehearing. Further, the Court is not inclined to grant

rehearing to enter a stay pending Poole2 where Defendant has failed to establish that this Court' s

finding of untimeliness was error based on the law in effect at the time it was made.

Based on the above, it is hereby

ORDERED AND ADJUDGED that Defendant's Motion for Rehearing is DENIED.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _j_ day of September, 2019. A true and correct copy of this order has been furnished to the parties

listed below.

cc: Office of the State Attorney Attn. Sara Macks, Esquire

Marilyn Beccue, Esquire Office of the Attorney General Concourse Center Four 3507 E Frontage Rd Ste 200 Tampa, FL 33607-7013

Julie A. Morley, Esquire CCRC - Middle Region 12973 N Telecom Pkwy Temple Terrace, FL 33637-0907

Joseph A. Bul

James L. Driscoll, Jr., Esquire CCRC - Middle Region 12973 N Telecom Pkwy Temple Terrace, FL 33637-0907

Jeffrey L. Atwater, DC# 120467 Union Correctional Institution P.O. Box 1000 Raiford, FL 32083

2 It is not clear that the Florida Supreme Court ;ill make a finding regarding the retroactive application of McCoy in Poole.

3 of3

App 010

Appendix C: The opinion of the Supreme Court of Florida affirming the denial of postconviction relief, reported at Atwater v. State, 300 So. 3d 589 (Fla. 2020).

App 011

Atwater v. State, 300 So.3d 589 (2020)45 Fla. L. Weekly S217

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

300 So.3d 589Supreme Court of Florida.

Jeffrey Lee ATWATER, Appellant,v.

STATE of Florida, Appellee.

No. SC19-1709|

August 13, 2020

SynopsisBackground: Following affirmance of his convictions forfirst-degree murder and robbery and death sentence, 626So.2d 1325, defendant filed motion for post-conviction relief.The Circuit Court, 6th Judicial Circuit, Pinellas County,Joseph A. Bulone, J., dismissed motion, and defendantappealed.

[Holding:] The Supreme Court held that defense counsel didnot violate defendant's right to counsel by failing to obtaindefendant's express consent before conceding guilt.

Affirmed.

West Headnotes (2)

[1] Criminal Law Interlocutory, Collateral,and Supplementary Proceedings and Questions

Criminal Law Review De Novo

Criminal Law Post-conviction relief

Supreme Court reviews circuit court's summaryrejection of postconviction claim de novo,accepting movant's factual allegations as trueto extent they are not refuted by record, andaffirming ruling if record conclusively showsthat movant is entitled to no relief.

[2] Criminal Law Admissions or concessions

Defense counsel did not violate defendant'sSixth Amendment right to counsel by failing

to obtain defendant's express consent beforearguing that defendant committed second-degreemurder, but that there was insufficient evidenceof first-degree murder, where defendant did notallege that he expressed to counsel that hisobjective was to maintain his innocence or thathe expressly objected to any admission of guilt.U.S. Const. Amend. 6.

An Appeal from the Circuit Court in and for PinellasCounty, Joseph Anthony Bulone, Judge - Case No.521989CF013299XXXXNO

Attorneys and Law Firms

Eric Pinkard, Capital Collateral Regional Counsel, Julie A.Morley, James L. Driscoll, Jr., and Tracy M. Henry, AssistantCapital Collateral Regional Counsel, Middle Region, TempleTerrace, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, andMarilyn Muir Beccue, Senior Assistant Attorney General,Tampa, Florida, for Appellee

Opinion

PER CURIAM.

Jeffrey Lee Atwater appeals an order of the circuit courtdenying his fifth successive postconviction motion filedpursuant to Florida Rule of Criminal Procedure 3.851. Wehave jurisdiction. See art. V, § 3(b)(1), Fla. Const.

BACKGROUND

Atwater was convicted of first-degree murder and robberyand was sentenced to death. The record reflects that duringclosing arguments, defense counsel conceded that the State'sevidence demonstrated that Atwater committed second-degree murder, though counsel argued there was insufficientevidence of first-degree murder.

In his fifth successive postconviction motion, Atwater arguedthat he was not informed of counsel's plan to concede guilt,and if he had been informed, he would not have agreed.Invoking McCoy v. Louisiana, ––– U.S. ––––, 138 S. Ct.1500, 200 L.Ed.2d 821 (2018), Atwater asserted that counsel's

App 012

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concession of guilt without his consent was a structural errorthat entitled him to a new trial. McCoy held that it violatesthe Sixth Amendment when an *590 attorney concedeshis client's guilt over the client's “insistent objections.” Id.at 1512. Atwater requested an evidentiary hearing. He alsofiled a motion to stay the case management conference untilhis counsel returned from maternity leave. The trial courtdenied the motion to stay and dismissed the successivepostconviction motion, for two reasons.

First, the court found that the postconviction motion wasuntimely. Rule 3.851(d)(1) requires postconviction motionsin capital cases to be filed within one year of the judgmentand sentence becoming final, subject to limited exceptions.Atwater sought to avail himself of rule 3.851(d)(2)(B), whichcreates an exception for motions that allege “the fundamentalconstitutional right asserted was not established within theperiod provided for in subdivision (d)(1) and has been heldto apply retroactively.” The trial judge found that under theplain language of the rule, a defendant cannot file a motionunder this exception unless the constitutional right asserted“has been held” to apply retroactively prior to the motionbeing filed. Because no court has held that McCoy appliesretroactively, the trial court found that this exception to theone-year time limitation did not apply.

Second, even if the postconviction motion had been timely,the court found it was without merit. Taking as true the factualallegations in Atwater's motion, the court found that McCoydoes not govern this case because Atwater did not allegethat counsel conceded his guilt over Atwater's objections.Instead, Atwater's motion states that he never discussed withhis attorneys the possibility of conceding guilt.

The trial court found this case to be controlled by Florida v.Nixon, 543 U.S. 175, 178, 192, 125 S.Ct. 551, 160 L.Ed.2d565 (2004), in which the Supreme Court held that wherethe defendant “neither consents nor objects” to a proposedtrial strategy of conceding guilt, there is no “blanket ruledemanding the defendant's explicit consent.” Therefore, thetrial court found Atwater's claim under McCoy was withoutmerit and dismissed the postconviction motion.

ANALYSIS

[1] On appeal, Atwater challenges both the dismissal of hispostconviction motion and the trial court's failure to conducta case management conference or evidentiary hearing prior to

ruling on the motion. “We review a circuit court's summaryrejection of a postconviction claim de novo, ‘accepting themovant's factual allegations as true to the extent they are notrefuted by the record, and affirming the ruling if the recordconclusively shows that the movant is entitled to no relief.’ ”Dailey v. State, 279 So. 3d 1208, 1215 (Fla. 2019) (quotingPardo v. State, 108 So. 3d 558, 561 (Fla. 2012)).

[2] We agree with the trial court that, accepting as true thefactual allegations in Atwater's motion, he has failed to showentitlement to relief under McCoy. Contrary to Atwater'sclaim, the Supreme Court in McCoy did not hold that counselis required to obtain the express consent of a defendant priorto conceding guilt. Instead, the Court held that if a defendant“expressly asserts that the objective of ‘his defence’ is tomaintain innocence of the charged criminal acts, his lawyermust abide by that objective and may not override it byconceding guilt.” McCoy, 138 S. Ct. at 1509 (quoting U.S.Const. amend. VI). Because McCoy “vociferously insistedthat he did not engage in the charged acts and adamantlyobjected to any admission of guilt,” the Supreme Courtfound that counsel's concession of guilt violated McCoy's“[a]utonomy to decide that the *591 objective of the defenseis to assert innocence.” Id. at 1505, 1508.

Unlike the defendant in McCoy, Atwater does not allegethat he expressed to counsel that his objective was tomaintain his innocence or that he expressly objected toany admission of guilt. Instead, Atwater states that he didnot discuss the possibility of conceding guilt with counsel.The crux of Atwater's argument is to fault counsel forfailing to discuss with Atwater the potential trial strategy ofconceding guilt. But counsel's duty to discuss trial strategywith the defendant was established long before the SupremeCourt's decision in McCoy. In its 2004 decision in Nixon,for example, the Supreme Court noted that “[a]n attorneyundoubtedly has a duty to consult with the client regarding‘important decisions,’ including questions of overarchingdefense strategy.” Nixon, 543 U.S. at 187, 125 S.Ct. 551(quoting Strickland v. Washington, 466 U.S. 668, 688, 104S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“From counsel's functionas assistant to the defendant derive[s] the ... dut[y] to consultwith the defendant on important decisions and to keep thedefendant informed of important developments in the courseof the prosecution.”)). At its heart, Atwater's claim is not aMcCoy claim; Atwater has not alleged that counsel concededguilt over Atwater's objection. Therefore, the trial courtwas right to conclude that Atwater's allegations are faciallyinsufficient to warrant relief under McCoy.

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Because Atwater has not stated a facially sufficient claim,the trial court's failure to hold a case management hearing asprovided for by rule 3.851(f)(5)(B) was harmless error. Riverav. State, 260 So. 3d 920, 926 (Fla. 2018) (citing Groover v.State, 703 So. 2d 1035 (Fla. 1997)).

In light of this disposition, we find it unnecessary toaddress the trial court's ruling that a motion filed pursuantto rule 3.851(d)(2)(B) is untimely unless the fundamentalconstitutional right asserted has already been held to applyretroactively.

CONCLUSION

Based on the foregoing, we affirm the dismissal of thepostconviction motion.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON,MUÑIZ, and COURIEL, JJ., concur.

All Citations

300 So.3d 589, 45 Fla. L. Weekly S217

End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.

App 014









Appendix D: The opinion of the Supreme Court of Florida affirming the judgment and sentence, reported at Atwater v. State, 626 So. 2d 1325 (Fla. 1993).

App 015



KeyCite Yellow Flag - Negative Treatment Declined to Follow by State v. Jones, Hawai'i, July 19, 2001


Jeffrey ATWATER,Appellant/Cross-Appellee,

v.STATE of Florida,

Appellee/Cross-Appellant.

No. 76327.|

Sept. 16, 1993.|

Rehearing Denied Nov. 29, 1993.

SynopsisDefendant was convicted in the Circuit Court, PinellasCounty, R. Grable Stoutamire, J., of first-degree murder androbbery, and he appealed. The Supreme Court held that:(1) state provided valid, race-neutral reason for exercisingperemptory challenge of sole black person in venire;(2) evidence, though circumstantial, supported robberyconviction; (3) instruction on heinous, atrocious, or cruelaggravating factor was unconstitutionally vague, but washarmless error; (4) state produced sufficient evidence toadequately establish existence of heinous, atrocious, or cruelaggravating factor; and (5) evidence showed that murder wascold, calculated, and premeditated, without any pretense oflegal or moral justification.

Affirmed.

West Headnotes (13)

[1] Jury Peremptory Challenges

State gave valid, race-neutral reason forexercising peremptory challenge of sole blackperson in venire in first-degree murder androbbery prosecution, namely, that prospectivejuror had difficulty answering questions putto her and her demeanor indicated that she

was hesitant and uncomfortable regarding deathpenalty.

6 Cases that cite this headnote

[2] Criminal Law Communications BetweenJudge and Jury

Trial court's response to juror who stated that hehad a question dealing with an interpretation ofthe law, that juror should study the instructions,did not violate rule that counsel be givenopportunity to assist in formulating answer tojurors' questions; juror simply said that he hada question rather than asking a question, and, inany event, neither counsel said anything eitherbefore or after judge's response.


[3] Criminal Law Degree of Proof

Where circumstantial evidence is relied upon toprove a crime, in order to overcome defendant'smotion for judgment of acquittal, burden is onstate to introduce evidence which excludes everyreasonable hypothesis except guilt.


[4] Criminal Law Circumstantial Evidence

Where circumstantial evidence is relied uponto prove a crime, state is not required toconclusively rebut every possible variation ofevents which can be inferred from the evidence,but only to introduce competent evidence whichis inconsistent with defendant's theory of events.


[5] Criminal Law Circumstantial Evidence

Once state meets its threshold burden, incircumstantial evidence case, of introducingcompetent evidence which is inconsistent withdefendant's theory of events, question whetherevidence is sufficient to exclude all reasonablehypotheses of innocence is for jury.


App 016

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[6] Robbery Identity of Accused

State presented competent evidence, thoughcircumstantial, to prove defendant's guilt ofrobbery of murder victim, including testimonyshowing that defendant had obtained moneyfrom victim on previous occasions, that victimfeared defendant, and that on day of murder,victim told a friend that he was not going togive defendant any more money, plus proof thatvictim had cash in his pockets shortly beforekilling but that after body was found, pocketswere turned out and cash was gone.


[7] Criminal Law Cross-Examination andRedirect Examination

In cross-examining expert who, on direct,discussed defendant's antisocial personality, stateshould not have been permitted to ask himwhether persons with antisocial personality showremorse.


[8] Criminal Law Opinion Evidence

Error by trial court in allowing state, oncross-examination of expert who on directhad discussed defendant's antisocial personality,to ask him whether persons with antisocialpersonality show remorse was harmless; recorddemonstrated overwhelming evidence of guilt.


[9] Sentencing and Punishment Instructions

Instruction on heinous, atrocious, or cruelaggravating factor was unconstitutionally vagueby merely defining the terms “heinous, atrociousor cruel.” West's F.S.A. § 921.141(5)(h).


[10] Criminal Law Elements of Offense andDefenses

Question whether instruction on heinous,atrocious or cruel aggravating factor was vague

was preserved for appeal by virtue of priorrequest for legally proper instruction, eventhough defense made no objection to instructionas given. West's F.S.A. § 921.141(5)(h).


[11] Sentencing and Punishment Harmlessand Reversible Error

Giving of unconstitutionally vague instructionon heinous, atrocious, or cruel aggravatingfactor was harmless, as state produced sufficientevidence to adequately establish existence ofthat factor beyond reasonable doubt and by anystandard; victim was stabbed at least 40 times,defendant beat victim prior to or during stabbing,and stab wounds were more likely inflicted inorder of increasing severity, with fatal wounds tothe heart probably inflicted last. West's F.S.A. §921.141(5)(h).


[12] Sentencing and Punishment Sufficiency

Evidence at sentencing supported finding ofaggravating factor that murder was cold,calculated, and premeditated without anypretense of legal or moral justification,where there was proof that defendant hadstated he intended to kill victim, defendantgained entrance to victim's apartment bymisrepresenting himself as victim's grandson,and, upon gaining entrance, defendant murderedvictim, robbed him, and left building in calm anddeliberate manner. West's F.S.A. § 921.141(5)(i).


[13] Criminal Law Sentence or Judgment

Record supported finding that sentencing order,though not indicating extent to which each factorexisted, indicated that judge found nonstatutorymitigation to exist and that he carefully weighedit in his deliberations.


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*1327 James Marion Moorman, Public Defender, andStephen Krosschell, Asst. Public Defender, Tenth JudicialCircuit, Bartow, for appellant, cross-appellee.

Robert A. Butterworth, Atty. Gen., and Candance M.Sunderland, Asst. Atty. Gen., Tampa, for appellee, cross-appellant.

Opinion

PER CURIAM.

Jeffrey Atwater appeals his convictions for first-degreemurder and robbery and corresponding sentence of death. Wehave jurisdiction pursuant to article V, section 3(b)(1) of theFlorida Constitution.

On August 11, 1989, Atwater entered the John KnoxApartments in St. Petersburg, Florida, to see Ken Smith, thevictim in this case. Upon entering the apartment building,Atwater proceeded to Smith's room where he remained forabout twenty minutes. After Atwater left, Smith's body wasdiscovered in the room. Smith was dead and his money wasmissing. Atwater told several people that he had killed Smith.Atwater was arrested the same day for killing Smith. At trial,he was convicted of first-degree murder and robbery. The juryrecommended death by a vote of eleven to one. The trial judgefound three aggravating factors and no statutory mitigatingfactors. The judge held that the aggravators outweighedthe mitigators and sentenced Atwater to death. This appealensued.

[1] Atwater claims that the trial court erred in allowingthe State to exercise a peremptory challenge removing thesole black person in the venire. We disagree. Upon Atwater'sobjection to the peremptory challenge, the trial court inquiredas to the State's reasons. The record reflects that the court'sinquiry was adequate and the record supports the State'sexplanation for exercising the challenge. The court expresslynoted that the prospective juror had difficulty answering thequestions put to her and her demeanor indicated that she washesitant and uncomfortable regarding the death penalty. Thisis a valid, race-neutral reason for exercising a peremptorychallenge, and the court did not abuse its discretion inupholding the challenge.

[2] Atwater also argues that the judge erred in the handlingof a response to a juror's inquiry. After the instructions were

given at the conclusion of the guilt phase but before the jurybegan its deliberations, one of the jurors said, in the presenceof the attorneys for the defense and the State, that he had aquestion dealing with an interpretation of the law. The judgetold him that he could not provide anything more than alreadyprovided in the jury instructions. The judge suggested that thejuror study the instructions and consult with the other jurorsto resolve the question. If the jury, as a group, had any furtherquestions, the judge asked them to inform the bailiff who, inturn, would tell the judge.

Atwater contends that the judge's response violated the per serule of Curtis v. State, 480 So.2d 1277 (Fla.1985), and Bradleyv. State, 513 So.2d 112 (Fla.1987), in that counsel was notgiven the opportunity to assist in formulating the answer. Wefirst note that the juror simply said that he had a questionrather than asking a question. In any event, neither counselsaid anything either before or after the judge's response,and they had every opportunity to do so. Under thesecircumstances, we find no violation of the rule. See Colbertv. State, 569 So.2d 433 (Fla.1990). Our recent decision inMills v. State, 620 So.2d 1006 (Fla.1993), is distinguishablebecause there the judge never disclosed what he had beenasked until he responded to the jury's question. Atwater'sassertion that the judge's statement was erroneous becauseit implicitly discouraged further communication between thejudge and jury is totally without merit.

While Atwater does not challenge insufficiency of theevidence to convict of the murder, our review of the recorddemonstrates overwhelming evidence of guilt. However,

Atwater attacks his conviction of robbery.1 *1328 He claimsthat the evidence introduced by the State to support the chargewas not sufficient. At trial, Atwater presented two defensesto robbery. First, the theft was an afterthought and, therefore,Atwater did not have the requisite intent to commit robbery.Second, the State failed to prove that Atwater actually tookanything. The State argues that there was competent evidenceestablished to rebut any reasonable hypothesis of innocence.

[3] [4] [5] Where circumstantial evidence is reliedupon to prove a crime, in order to overcome a defendant'smotion for judgment of acquittal, the burden is on theState to introduce evidence which excludes every reasonablehypothesis except guilt. The State is not required toconclusively rebut every possible variation of events whichcan be inferred from the evidence but only to introducecompetent evidence which is inconsistent with the defendant'stheory of events. State v. Law, 559 So.2d 187, 189 (Fla.1989).

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Once this threshold burden has been met, the question ofwhether the evidence is sufficient to exclude all reasonablehypotheses of innocence is for the jury to determine.

[6] In the instant case, the State presented testimonyshowing that Atwater had obtained money from Smith onprevious occasions, that Smith feared Atwater, and that, on theday of the murder, Smith told a friend that he was not goingto give Atwater any more money. Further, there was evidencethat Smith had cash in his trousers pocket shortly before thekilling. When the body was found, the pockets were turnedout and the only money found in the room was a few pennieson the floor. We conclude that the judge properly denied themotion for judgment of acquittal and that there was sufficientevidence to convict of robbery.

[7] [8] Atwater next raises a number of issues regardingthe penalty phase of the trial. Atwater argues that thetrial court erred by allowing evidence of lack of remorsebefore the jury. On direct examination, Dr. Merin discussedAtwater's antisocial personality. We agree that the court erredin permitting the State on cross-examination to ask himwhether persons with antisocial personality showed remorse.However, we find that, on this record, the error was harmlessbeyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129,

1134-35 (Fla.1986).2

In his sentencing order, the trial judge found the followingaggravating factors existed in the instant case: (1) themurder was committed while Atwater was engaged in thecommission of a robbery; (2) the murder was especiallyheinous, atrocious, or cruel; and (3) the murder was cold,calculated, and premeditated. § 921.141(5)(d), (h), (i),Fla.Stat. (1989). Atwater claims that the jury instructionon the heinous, atrocious, or cruel aggravating factor wasunconstitutionally vague. He also claims that there wasinsufficient evidence to support this aggravating factor.

[9] [10] Prior to the penalty phase of the trial, defense

counsel requested that a Dixon instruction3 be given. Aftera lengthy discussion between the defense, prosecution,and trial judge regarding the merits of the *1329 Dixoninstruction, the judge decided to give only the first half of thatinstruction, defining the terms “heinous, atrocious or cruel.”The instruction, which was eventually given to the jury, wasessentially the same as the one held to be inadequate in Shell v.Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990).While the defense made no further objection to the instructionas given, we believe the point was sufficiently preserved for

appeal by virtue of the prior request for a legally properinstruction.

[11] Notwithstanding, we conclude that the giving of theerroneous instruction was harmless beyond a reasonabledoubt. DiGuilio, 491 So.2d at 1134-35. The victim in this casewas stabbed at least forty times. The sentencing order recites:

The Court has carefully reviewed the evidence and finds,in fact, that [the heinous, atrocious, or cruel aggravating]factor does exist beyond a reasonable doubt. In reachingthis conclusion, the Court has considered evidence thatthe Defendant killed his sixty-four (64) year old victimby inflicting nine (9) stab wounds to the back, eleven(11) incised wounds to the face, six (6) incised woundsto the neck, one (1) incised wound to the left ear, one(1) incised wound to the right shoulder, one (1) incisedwound to the right thumb, nine (9) stab wounds to the chestarea including heart and lungs, two (2) superficial puncturewounds to the abdomen, a scalp laceration on the back ofthe head as a result of blunt trauma, multiple abrasionsand contusions about the body, blunt trauma resulting fromfractured thyroid cartilage, and blunt trauma to the chestcausing multiple rib fractures. The medical examiner ...testified that these injuries occurred while Kenneth Smithwas alive, and that death or unconsciousness would nothave occurred until one to two minutes after the mostserious, life threatening wounds to the heart were inflicted.

Our examination of the record reflects that the evidencepresented at trial supports these findings. The evidence alsoshows that the stab wounds were more likely inflicted in theorder of increasing severity and that the fatal wounds to theheart were probably inflicted last. Additionally, Atwater beathis victim prior to or during the stabbing.

This Court has consistently upheld findings of heinous,atrocious, or cruel where the evidence shows the victim wasrepeatedly stabbed. Nibert v. State, 508 So.2d 1, 4 (Fla.1987);Johnston v. State, 497 So.2d 863, 871 (Fla.1986); Lusk v.State, 446 So.2d 1038, 1043 (Fla.), cert. denied, 469 U.S.873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Morgan v. State,415 So.2d 6, 12 (Fla.), cert. denied, 459 U.S. 1055, 103 S.Ct.473, 74 L.Ed.2d 621 (1982). In this case, the State producedsufficient evidence to adequately establish the existence ofthe heinous, atrocious, or cruel aggravating factor beyond areasonable doubt and by any standard. Floyd v. State, 569So.2d 1225, 1232 (Fla.1990), cert. denied, 501 U.S. 1259,111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Foster v. State,614 So.2d 455, 462 (Fla.1992). The jury could not have been

App 019


























misled by the inadequate instruction. See Foster, 614 So.2dat 462.

[12] Atwater also contends that the trial court erred infinding that the murder of Kenny Smith was cold, calculated,and premeditated without any pretense of legal or moraljustification. We disagree. The evidence at trial showedthat Atwater had made statements that he intended to killSmith and was seen looking for Smith on each of the threedays prior to the murder. Furthermore, to gain entrance toSmith's apartment building and to get by the security deskat the entrance, Atwater misrepresented himself as Smith'sgrandson and lied about his reason for the visit. Upon gainingentrance, Atwater murdered Smith, robbed him, and left thebuilding in a calm and deliberate manner. The record inthis case clearly supports a finding of cold, calculated, and

premeditated murder.4

[13] Finally, we reject Atwater's claim that the sentencingorder did not clearly state which nonstatutory mitigatingfactors *1330 the judge found or what weight he gave them.With respect to nonstatutory mitigating factors, the sentencingorder states:

In considering any other aspect of Defendant's characteror record and any other circumstances in the evidencewhich was proffered as a mitigating circumstance, theCourt has carefully considered the following: whether theDefendant was under the influence of mental or emotional

distress (even if not “extreme”); whether the Defendant'scapacity to appreciate the criminality of his conduct orto conform his conduct to the requirements of law wasimpaired (even if not “substantially” impaired) by lack ofintelligence, personality disorder, consumption of alcoholor a perception that his aunt was being treated abusively bythe victim. The Court additionally considered and weighedthe Defendant's family background and his lack of a closefamily relationship. All of these factors were presented tothe jury during the penalty phase of the proceedings in thiscase, as well as now being fully considered and weighedby the Court.

While the judge did not indicate the extent to which eachfactor existed, it is evident that he found nonstatutorymitigation to exist and that he carefully weighed it in hisdeliberations.

The remainder of Atwater's claims5 are without merit.Accordingly, we affirm the convictions and sentence of death.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW,GRIMES, KOGAN and HARDING, JJ., concur.

All Citations

626 So.2d 1325, 18 Fla. L. Weekly S496

Footnotes1 A reversal of the robbery conviction would not affect the murder conviction because the jury was instructed on both

premeditated and felony murder, there was ample evidence to demonstrate premeditation, and the jury returned a generalguilty verdict of murder. Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79L.Ed.2d 754 (1984); see Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).

2 Atwater's similar claim that the trial judge improperly relied on lack of remorse in considering aggravating factors hasno merit.

3 In State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), we stated:It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageouslywicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or evenenjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actualcommission of the capital felony was accompanied by such additional acts as to set the crime apart from the normof capital felonies-the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

This description of “heinous, atrocious or cruel” is known as the Dixon instruction and is the current Florida StandardJury Instruction on that aggravating factor. Fla.Std.Jury Instr. (Crim.) 77.

4 Atwater claims that he had a pretense of moral justification to murder Smith because Smith was having a relationshipwith Atwater's aunt and Atwater believed Smith was abusing her. Also, Atwater was jealous of Smith because of therelationship. This claim has no merit.

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5 Atwater additionally claims that the judge erred in failing to call a witness as a court witness, that the judge erred ininstructing the jury on the murder committed during the course of a robbery aggravating factor, and that the death sentencewas not proportionate.


App 021

Appendix E: The opinion of the Supreme Court of Florida affirming the denial of postconviction relief, reported at Atwater v. State, 788 So. 2d 223 (Fla. 2001).

App 022

Atwater v. State, 788 So.2d 223 (2001)26 Fla. L. Weekly 395


KeyCite Yellow Flag - Negative Treatment Distinguished by Smallwood v. State, Fla.App. 5 Dist., February 8, 2002


Jeffrey Lee ATWATER, Appellant,v.

STATE of Florida, Appellee.Jeffrey Lee Atwater, Petitioner,

v.Michael W. Moore, etc.,

et al., Respondents.

Nos. SC94865, SC99-179.|

June 7, 2001.

SynopsisFollowing affirmance of first-degree murder and robberyconvictions and imposition of death sentence, 626 So.2d1325, motion for post-conviction relief was filed. The CircuitCourt, Pinellas County, Raymond Gross, J., denied relief.Movant appealed, and petitioned for writ of habeas corpus.The Supreme Court held that: (1) counsel was not ineffectivein rebuttal closing argument for arguing that facts showedsecond-degree murder, and (2) record did not support claimthat counsel was ineffective in penalty phase for failing topresent mitigating evidence.

Affirmed, petition denied.

Pariente, J., issued concurring and dissenting opinion inwhich Anstead, J., concurred.

Lewis, J., concurred in result only.

West Headnotes (27)

[1] Habeas Corpus Particular Issues andProblems

Claims that trial court in capital murderprosecution gave nonstandard Enmund/Tisonjury instruction in penalty phase, pertaining toparticipation in felony that results in murder, and

that appellate counsel was ineffective in failingto raise this issue, were not proper claims forhabeas corpus relief; such claims should havebeen, or were raised on appeal or in motion forpost-conviction relief, or were not raised at trial.


[2] Habeas Corpus Post-Conviction Motionsor Proceedings

Habeas Corpus Appeal, Error, or OtherDirect Review of Conviction

Habeas corpus petitions are not to be used foradditional appeals on questions which couldhave been, should have been, or were raised onappeal or in a motion for post-conviction relief,or on matters that were not objected to at trial.


[3] Sentencing and Punishment NarrowingClass of Eligible Offenders

Aggravating circumstance of capital felonycommitted while defendant was engaged incommission of felony was constitutional,despite claim that it was automatic aggravatingcircumstance.


[4] Habeas Corpus Post-Conviction Motionsor Proceedings

Claims raised in habeas petition that were alsoraised in petitioner's motion for postconvictionrelief were procedurally barred.

[5] Criminal Law Post-ConvictionProceeding Not a Substitute for Appeal

Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that appellate reviewwas not possible because no reliable transcript oftrial existed; such claim should have been raisedon direct appeal. West's F.S.A. RCrP Rule 3.850.

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Defendant under sentence of death wasprocedurally barred from raising claim inmotion for post-conviction relief that trial courterred in allowing prosecutor to elicit opiniontestimony regarding blood spatter evidence fromunqualified witnesses; such claim should havebeen raised on direct appeal. West's F.S.A. RCrPRule 3.850.


Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that aggravator wasunconstitutionally vague and that jury wasimproperly instructed on this aggravator; suchclaim should have been raised on direct appeal.West's F.S.A. RCrP Rule 3.850.


Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that trial court failedto ensure defendant's presence during criticalstages of proceedings and that defendant wasprejudiced thereby; such claim should have beenraised on direct appeal. West's F.S.A. RCrP Rule3.850.


Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that state failed toprove each and every element of offensescharged; such claim should have been raised ondirect appeal. West's F.S.A. RCrP Rule 3.850.


Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that jury and judgeimproperly considered nonstatutory aggravatingcircumstances; such claim should have beenraised on direct appeal. West's F.S.A. RCrP Rule3.850.



Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that his sentence restedupon unconstitutionally automatic aggravatingcircumstances; such claim should have beenraised on direct appeal. West's F.S.A. RCrP Rule3.850.


Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that trial court violatedEighth Amendment by failing to find andweigh mitigating circumstances in record; suchclaim should have been raised on direct appeal.U.S.C.A. Const.Amend. 8; West's F.S.A. RCrPRule 3.850.



Defendant under sentence of death wasprocedurally barred from raising claim in motionfor post-conviction relief that he was deniedeffective assistance of counsel at pretrial phase ofhis trial; such claim should have been raised ondirect appeal. U.S.C.A. Const.Amend. 6; West'sF.S.A. RCrP Rule 3.850.


[14] Criminal Law Necessity for Hearing

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A defendant is entitled to an evidentiary hearingon a postconviction relief motion unless (1)the motion, files, and records in the caseconclusively show that the defendant is entitledto no relief, or (2) the motion or a particular claimis legally insufficient. West's F.S.A. RCrP Rule3.850.


[15] Criminal Law Necessity for Hearing

A defendant seeking an evidentiary hearing ona postconviction relief motion bears the burdenof establishing a prima facie case based upon alegally valid claim; mere conclusory allegationsare not sufficient to meet this burden. West'sF.S.A. RCrP Rule 3.850.


[16] Criminal Law Post-Conviction Relief

In post-conviction relief cases where there hasbeen no evidentiary hearing, the Supreme Courtmust accept the factual allegations made by thedefendant to the extent that they are not refutedby the record. West's F.S.A. RCrP Rule 3.850.


[17] Criminal Law Interlocutory, Collateral,and Supplementary Proceedings and Questions

In post-conviction relief cases where there hasbeen no evidentiary hearing, the Supreme Courtmust examine each claim to determine if it islegally sufficient, and, if so, determine whetheror not the claim is refuted by the record. West'sF.S.A. RCrP Rule 3.850.


[18] Criminal Law Admissions or Concessions

Counsel was not ineffective in rebuttal closingargument in capital murder case for arguingthat facts showed second-degree murder, andnot first-degree murder as was charged, even ifdefendant did not consent to defense counsel'sstrategy to concede guilt to any crime; suchconcession was legitimate trial strategy in

attempt to save defendant's life, and wasnecessary in light of overwhelming evidence ofguilt. U.S.C.A. Const.Amend. 6.


[19] Criminal Law Determination

Not all decisions of counsel are reviewable underStrickland as constituting ineffective assistanceof counsel. U.S.C.A. Const.Amend. 6.


[20] Criminal Law Strategy and Tactics inGeneral

Any specific discretionary or judgmental actor position of trial counsel, whether tactical orstrategic, on an inquiry as to effectiveness ofcounsel will not be considered under Strickland.U.S.C.A. Const.Amend. 6.


Sometimes concession of guilt to some of theprosecutor's claims is good trial strategy andwithin defense counsel's discretion in order togain credibility and acceptance of the jury.U.S.C.A. Const.Amend. 6.



Not every situation permits trial counsel to makea concession on a defendant's behalf without thedefendant's consent. U.S.C.A. Const.Amend. 6.


[23] Criminal Law Prejudice and Presumptions

If counsel entirely fails to subject theprosecution's case to meaningful adversarialtesting, then there has been a denial of SixthAmendment rights that makes the adversaryprocess itself presumptively unreliable. U.S.C.A.Const.Amend. 6.


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[24] Criminal Law Presentation of Evidence inSentencing Phase

Counsel was not ineffective in penalty phaseof capital murder case for failing to presentmitigating evidence concerning defendant'spersonal and family history; such evidence was,in fact, presented through testimony of forensicpsychologist who testified as defendant's expertwitness. U.S.C.A. Const.Amend. 6.


[25] Criminal Law Presentation of Evidence inSentencing Phase

Record did not support claim that counselwas ineffective in penalty phase of capitalmurder case for failing to object to prosecutor'suse of background mitigation evidence thatwas presented as nonstatutory aggravators;record showed that mitigation evidence offeredwas considered by sentencing court. U.S.C.A.Const.Amend. 6.


[26] Criminal Law Adequacy of Investigationof Mitigating Circumstances

Counsel was not ineffective in penalty phaseof capital murder trial due to his allegedunreadiness, even though defense counselattempted to get a continuance for the penaltyphase; virtually all evidence defendant wouldhave put on in mitigation was actually put on andconsidered. U.S.C.A. Const.Amend. 6.


[27] Sentencing and Punishment OtherDiscovery and Disclosure

Death sentence was proper, despite claim thatdefense expert had not interviewed members ofdefendant's family at time of expert's pre-penaltyphase deposition; mitigation evidence defendantwould have put on was actually considered.


*226 Mark S. Gruber, Assistant CCRC, Capital CollateralRegional Counsel-Middle, Tampa, FL, for Appellant/Petitioner.

Robert A. Butterworth, Attorney General, and CandanceM. Sabella, Assistant Attorney General, Tampa, FL, forAppellee/Respondent.

Opinion

PER CURIAM.

Jeffrey Lee Atwater, a prisoner under sentence of death,appeals an order entered by the trial court denying hispostconviction motion filed pursuant to Florida Rule ofCriminal Procedure 3.850; he also petitions this Court for awrit of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1),(9) Fla. Const. These cases have been consolidated. We affirmthe trial court's denial of 3.850 relief, and we deny habeasrelief.

STATEMENT OF THE CASE AND FACTS

The following is a statement of the facts that appears inAtwater v. State, 626 So.2d 1325, 1327 (Fla.1993):

On August 11, 1989, Atwater entered the John KnoxApartments in St. Petersburg, Florida, to see Ken Smith, thevictim in this case. Upon entering the apartment building,Atwater proceeded to Smith's room where he remainedfor about twenty minutes. After Atwater left, Smith's bodywas discovered in the room. Smith was dead and hismoney was missing. Atwater told several people that he hadkilled Smith. Atwater was arrested the same day for killingSmith. At trial, he was convicted of first-degree murder androbbery. The jury recommended death by a vote of elevento one. The trial judge found three aggravating factorsand no statutory mitigating factors. The judge held thatthe aggravators outweighed the mitigators and sentencedAtwater to death.

On appeal, this Court affirmed the convictions and sentenceof death. Atwater timely filed a motion for postconvictionrelief pursuant to Florida Rule of Criminal Procedure 3.850.

He raised twenty-four claims. After a Huff1 hearing, the trial

*227 court summarily denied all but two2 of Atwater's

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claims. After an evidentiary hearing on the two remainingclaims, however, the trial court denied those two claims as

well.3

Atwater now appeals the denial of all the claims in his initial3.850 motion and petitions separately for a writ of habeascorpus.

In the petition for writ of habeas corpus, Atwateralleges: (1) The trial court gave a nonstandard Enmund/

Tison4 jury instruction in the penalty phase and appellatecounsel was ineffective in failing to raise this issue;(2) Atwater's sentence rests upon an unconstitutionallyautomatic aggravating circumstance; (3) Atwater's rightswere denied by the judge and jury's consideration ofnonstatutory aggravating circumstances. Appellate counselrendered ineffective assistance by failing to raise this claim;(4) Electrocution is cruel and unusual punishment; (5) Noreliable transcript of Atwater's trial exists, and reliableappellate review was and is not possible, and there is no wayto ensure that which occurred in the trial court was or can bereviewed on appeal, so the judgment and sentence must bevacated.

[1] [2] [3] [4] The petition for writ of habeas corpusis hereby denied. Claims 1 and 2 are not proper claims forhabeas corpus relief. “[H]abeas corpus petitions are not to beused for additional appeals on questions which could havebeen, should have been, or were raised on appeal or in arule 3.850 motion, or on matters that were not objected to attrial.” Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989). Asto the substance of claim 2, this Court rejected this argumentin Hudson v. State, 708 So.2d 256 (Fla.1998), and Blanco v.State, 706 So.2d 7 (Fla.1997). Claims 3, 4, and 5 were alsoraised in Atwater's motion for postconviction relief and areprocedurally barred as well. See Parker, 550 So.2d 459. As forthe claims of ineffective assistance of appellate counsel raisedin claims 1 and 3, these claims are without merit. See Harveyv. Dugger, 650 So.2d 982 (Fla.1995); Ferguson v. Singletary,632 So.2d 53 (Fla.1993); Scott v. Dugger, 604 So.2d 465, 469(Fla.1992) (citing Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

[5] [6] [7] [8] [9] [10] [11] [12] [13] Atwater'sclaims on appeal from the denial of his 3.850 motionare paraphrased as follows: (1) Atwater's trial counsel wasineffective because counsel conceded guilt without Atwater'sconsent; (2) The trial court erred in denying Atwater ahearing on his claim that he was denied effective assistance

of counsel in the penalty phase of the trial; (3) Judgment*228 must be vacated because no reliable transcript of

Atwater's trial exists and reliable appellate review is andwas not possible; (4) Trial counsel was ineffective becausethe state elicited false and misleading evidence and experttestimony from FBI agents; (5) The trial court erred inallowing the prosecutor to elicit opinion testimony regardingblood spatter evidence from unqualified witnesses; (6) TheCCP aggravator is unconstitutionally vague and the jurywas improperly instructed on this aggravator; (7) The Statefailed to reveal that it made promises of lenient treatment towitnesses; (8) The trial court erred in improperly failing tofind the statutory mitigator of no significant criminal history;(9) The trial court failed to ensure Atwater's presence duringcritical stages of the proceedings and Atwater was prejudicedthereby; (10) The State failed to prove each and every elementof the offenses charged; (11) Atwater's guilt phase juryinstructions were erroneous, unreliable and unsupported bythe evidence; (12) The jury and judge improperly considerednonstatutory aggravating circumstances: the prosecutor'sinflammatory and improper comments and arguments; (13)Trial counsel was ineffective during voir dire; (14) Atwater'ssentence rests upon unconstitutionally automatic aggravatingcircumstances; (15) The trial court violated the EighthAmendment by failing to find and weigh the mitigatingcircumstances in the record; (16) Florida's capital sentencingstatute is unconstitutional on its face and as applied because itfails to prevent the arbitrary and capricious imposition of thedeath penalty; (17) Atwater was denied effective assistanceof counsel at the pretrial phase of his trial; (18) The errors attrial were not harmless when viewed as a whole; (19) Atwaterwas denied the right to an individualized sentencing whenthe court submitted to the jury during deliberations a copyof a death penalty sentencing outline designed as a judicialtool to assist the courts in conducting a penalty phase trial;(20) Atwater was denied effective assistance of counsel atpretrial and the guilt phase when the defense attorney failed toobject to the introduction of gruesome and shocking autopsyphotos; (21) Atwater is innocent of first degree and second-degree murder and was denied adversarial testing due toineffective assistance of counsel; (22) Atwater was deniedeffective assistance of counsel at pretrial and guilt phase ofhis trial because a full adversarial testing did not occur andcounsel's performance was deficient.

We only discuss claims 1 and 2 of the 3.850 motion.5

*229 [14] [15] [16] [17] We begin our analysis withthe general proposition that a defendant is entitled to an

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evidentiary hearing on a postconviction relief motion unless(1) the motion, files, and records in the case conclusivelyshow that the prisoner is entitled to no relief, or (2) themotion or a particular claim is legally insufficient. See, e.g.,Maharaj v. State, 684 So.2d 726 (Fla.1996); Anderson v.State, 627 So.2d 1170 (Fla.1993); Hoffman v. State, 571 So.2d449 (Fla.1990); Holland v. State, 503 So.2d 1250 (Fla.1987);Lemon v. State, 498 So.2d 923 (Fla.1986); Fla. R.Crim. P.3.850. The defendant bears the burden of establishing aprima facie case based upon a legally valid claim. Mereconclusory allegations are not sufficient to meet this burden.See Kennedy v. State, 547 So.2d 912 (Fla.1989). However, incases where there has been no evidentiary hearing, we mustaccept the factual allegations made by the defendant to theextent that they are not refuted by the record. See Peede v.State, 748 So.2d 253 (Fla.1999); Valle v. State, 705 So.2d1331 (Fla.1997). We must examine each claim to determineif it is legally sufficient, and, if so, determine whether or notthe claim is refuted by the record.

Generally, when a defendant alleges ineffective assistanceof counsel, he must establish the two prongs necessary todemonstrate ineffectiveness as outlined by the Supreme Courtin Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984), specifically:

A convicted defendant's claim that counsel's assistancewas so defective as to require reversal of a conviction ordeath sentence has two components. First, the defendantmust show that counsel's performance was deficient.This requires showing that counsel made errors soserious that counsel was not functioning as the “counsel”guaranteed the defendant by the Sixth Amendment.Second, the defendant must show that the deficientperformance prejudiced the defense. This requires showingthat counsel's errors were so serious as to deprive thedefendant of a fair trial, a trial whose result is reliable.Unless a defendant makes both showings, it cannot besaid that the conviction or death sentence resulted from abreakdown in the adversary process that renders the resultunreliable.

466 U.S. at 687, 104 S.Ct. 2052. In reviewing counsel'sperformance, “a court must indulge a strong presumption thatcounsel's conduct falls within the wide range of reasonableprofessional assistance.” Id. at 689.

[18] In claim 1 of his motion for postconviction relief,Atwater argues that during closing arguments, his counselforcefully argued in favor of second-degree murder, displayedgruesome crime scene photographs to the jury, argued the

crime was one of malice, and rejected any considerationof manslaughter because the facts supported a more seriousoffense. Defense counsel's actions, Atwater argues, weremore like those of a prosecutor than a defense attorney.Atwater states that he did not consent to defense counsel'sstrategy to concede guilt to any crime. He argues thatconceding guilt is equivalent to a guilty plea, and defensecounsel was required under Nixon v. Singletary, 758 So.2d618 (Fla.2000), to secure Atwater's explicit consent beforemaking any concession to any element of the crime charged,even if the concession was to a lesser included offense.

The State argues that any concession to a lesser includedoffense was legitimate trial strategy in an attempt to saveAtwater's life and that such a strategy was necessary in lightof the overwhelming evidence of guilt. The State furthercontends counsel's action was proper even without *230Atwater's knowledge or consent, in accord with McNeal v.Wainwright, 722 F.2d 674 (11th Cir.1984), and McNeal v.State, 409 So.2d 528 (Fla. 5th DCA 1982).

At the evidentiary hearing below, defense co-counsel Whitetestified that as an experienced attorney of seventeen yearswith five or six capital trials and over a hundred criminaltrials, he did not believe Atwater had a chance at getting anacquittal. His strategy was to save Atwater's life. Defenseco-counsel Schwartzberg testified that although he did notrecollect a specific conversation with Atwater as to whetherAtwater would consent to such a strategy, he always explainshis strategy to his clients and would have done so in this case.

[19] [20] [21] Not all decisions of counsel are reviewableunder Strickland as constituting ineffective assistance ofcounsel. “[A]ny specific discretionary or judgmental act orposition of trial counsel, whether tactical or strategic, on aninquiry as to effectiveness of counsel” will not be consideredunder Strickland. McNeal v. State, 409 So.2d 528, 529 (Fla.5th DCA 1982). Sometimes concession of guilt to some of theprosecutor's claims is good trial strategy and within defensecounsel's discretion in order to gain credibility and acceptanceof the jury.

When faced with the duty of attempting to avoidthe consequences of overwhelming evidence of thecommission of an atrocious crime, such as a deliberate,considered killing without the remotest legal justificationor excuse, it is commonly considered a good trial strategyfor a defense counsel to make some halfway concessions tothe truth in order to give the appearance of reasonableness

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and candor and to thereby gain credibility and juryacceptance of some more important position.

Id. at 529. In McNeal, the defendant was on trial for a capitalfelony. Defense counsel argued in summation to the jurythat, “at most and at best, one and only logical result ofthe State's evidence was proof of manslaughter.” Id. Thedefendant was nevertheless convicted of first-degree murder.On appeal from the denial of his motion for postconvictionrelief, defendant argued that defense counsel abdicated hisfunction and the defendant's cause. The defendant claimedhe did not consent to the concession. The court rejectedthe defendant's argument, however, and held that “[t]o beeffectual, trial counsel should be able to do this withoutexpress approval of his client and without risk of beingbranded as being professionally ineffective because othersmay have different judgments or less experience.” Id.

In seeking federal habeas corpus relief, McNeal again allegedthat his trial counsel improperly conceded guilt without hisconsent. The Eleventh Circuit agreed that defense counsel'sdecision to concede guilt to a lesser charge was a tacticaldecision and not reviewable as an ineffective assistance ofcounsel claim. “In view of the overwhelming evidence againstMcNeal, including a tape recording of his confession tothe shooting, the strategy of trial counsel was proper andwould not amount to a constitutional violation.” McNeal v.Wainwright, 722 F.2d 674, 676 (11th Cir.1984). The EleventhCircuit distinguished McNeal from a situation where defensecounsel concedes guilt to the offense charged and makesa plea for leniency. The latter situation requires a client'sconsent. The former is counsel's strategy that may bind aclient even when made without consultation. See McNeal, 722F.2d at 677 (citing Thomas v. Zant, 697 F.2d 977, 987 (11thCir.1983)).

The trial court in this case properly relied upon andapplied McNeal. Defense *231 counsel properly made astrategic decision to argue that the facts showed Atwater'sacts constituted second-degree murder, and not first-degreemurder as was charged. This argument was presented to thejury after the State presented its case and after the State'ssummation of the evidence in closing argument. As we statedin our opinion on the direct appeal of this case, there wasoverwhelming evidence of guilt. Atwater v. State, 626 So.2d1325 (Fla.1993).

In light of the evidence against Atwater, defense counselproperly attempted to maintain credibility with the jury bybeing candid as to the weight of the evidence. Faced with the

prospect of a guilty verdict for first-degree murder and in lightof the State's evidence, defense counsel's concession, whichwas made only in rebuttal to the State's closing argument, wasreasonable and does not amount to a constitutional violation.The concession was made to a lesser crime than charged,during rebuttal closing argument, and after a meaningfuladversarial testing of the State's case. See, e.g., Brown v. State,755 So.2d 616 (Fla.2000) (holding that concession of guiltof lesser offense did not require defendant's consent and wasproper strategy in attempt to avoid death sentence in light ofoverwhelming evidence).

[22] While counsel's actions in this case were proper, notevery situation permits trial counsel to make a concessionon a defendant's behalf without the defendant's consent. InNixon v. Singletary, 758 So.2d 618 (Fla.2000), we remandeda case where counsel conceded the defendant's guilt to thecrime charged in the opening statement of the guilt phase.In opening statement, before any evidence was presented,defense counsel told the jury that the case was not aboutthe victim's death, but about the defendant's death andwhether the defendant would die by electrocution or die bynatural causes after a lifetime of confinement. In closingargument, defense counsel told the jury that he believedthe State had proven its case of first-degree premeditatedmurder against his client. Defense counsel entirely failedto subject the prosecution's case to meaningful adversarialtesting; therefore, the State's case was never challenged.

[23] “[I]f counsel entirely fails to subject the prosecution'scase to meaningful adversarial testing, then there has been adenial of Sixth Amendment rights that makes the adversaryprocess itself presumptively unreliable.” United States v.Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657(1984). Thus, in Nixon we held that unless the defendantexpressly consented to this strategy, or in effect knowinglyand voluntarily consented to decline meaningful adversarialtesting of the prosecution's case, then prejudice to the

defendant is presumed and counsel is thus per se ineffective.6

The presumption discussed in Cronic, while applicable inNixon, is not applicable here.

In this case, there was a meaningful adversarial testing. TheState presented twenty witnesses. Defense counsel conductedmeaningful cross-examination of fifteen of these witnesses.The witnesses that defense counsel did not cross-examinewere minor witnesses. At no point during the openingstatement or during any of the testimony did defense counselconcede Atwater's guilt. During the first part of defense

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counsel's closing argument, defense counsel argued that theState failed *232 to prove robbery and therefore could notprove felony murder. Defense counsel stated in the first partof closing arguments that he would address premeditationafter the State's closing argument. The State argued in closingargument that it had proven robbery and premeditation, anddiscussed the evidence presented which included: Atwaterhad threatened to kill Smith a week before; Smith was afraidof Atwater and hid from him; on the night of the murderAtwater signed in on the clerk's log at Smith's apartmentbuilding; Atwater exited approximately twenty minutes laterand told the desk clerk that nobody answered the door;Atwater had blood on his shoes and pants that was not fromAtwater himself; and Atwater told his aunt and cousin that hekilled Smith and enjoyed it. In response, then, and in rebuttalclosing argument, defense counsel addressed premeditationand argued that the evidence might support the lesser offenseof second-degree murder, but there was nothing to supportpremeditation. In light of the overwhelming evidence ofguilt presented by the State, which we acknowledged in ouropinion on the direct appeal, defense counsel's argument wasreasonable. Ineffective assistance of counsel is not measuredby the result of counsel's efforts. We cannot say that counselhere did not subject the State's case to meaningful adversarialtesting. Indeed, defense counsel did subject the State's caseto meaningful testing, and only after the State's case waspresented and fully argued did defense counsel resort tomaking some concession-a trial strategy intended to saveAtwater's life. Under the circumstances, this strategy wasreasonable.

Even if defense counsel had denied that Atwater was guiltyof any crime, there is no reasonable possibility that the jurywould have reached a different conclusion given the evidenceagainst him. See Patton v. State, 784 So.2d 380 (Fla.2000)(finding the facts counsel conceded were supported byoverwhelming evidence and even if counsel had denied thesefacts, there was no reasonable possibility the jury wouldhave rendered a different verdict). Therefore, the trial courtproperly denied Atwater's claim that defense counsel wasineffective for making certain concessions without Atwater'sconsent.

[24] As to claim 2, Atwater presents several argumentsin support of the assertion that in the penalty phase of thetrial, defense counsel failed to adequately present evidence inmitigation and failed to adequately challenge the State's case.Claim 2 is without merit as well. The trial court dismissedthis claim without an evidentiary hearing. As we stated

above, a defendant is entitled to an evidentiary hearing ona postconviction relief motion unless (1) the motion, files,and records in the case conclusively show that the prisoneris entitled to no relief, or (2) the motion or a particular claimis legally insufficient. The record in this case conclusivelyshows that Atwater is entitled to no relief. Therefore, the trialcourt properly dismissed this claim.

Although Atwater's claim 2 is without merit, Atwater'scontention that certain evidence should have been but wasnot presented for consideration warrants discussion. Atwaterclaims that the following evidence was not presented:Atwater, born in 1963, never met or saw his father; Atwaterwas illegitimate and grew up in a town where this wasfrowned on. He and his mother were on public assistanceand moved from one small town to another. Atwater'smother had an illegitimate daughter in 1965. The childrenwere inadequately clothed and emotionally deprived. WhenAtwater's mother had bad luck with men, she drank gin.At age 3, Atwater suffered nosebleeds for a year beforehe *233 received medical attention; he was diagnosedwith Von Willebrand Syndrome and an upper respiratoryinfection. Atwater was in a special reading class in elementaryschool; he later was diagnosed with ADD. In 1968, Atwater'smother became pregnant again and married the baby's father;Atwater's new stepfather physically and emotionally abusedhim. In 1974, Atwater's younger sister was hit by a car anddied, and his mother was glad there was one fewer mouth tofeed. Atwater had an interest in athletics in high school butcould not afford to pursue these interests, and had to work. Inhigh school Atwater became attached to a pastor in his churchand his mother did not approve of the relationship; the pastorwas transferred out of state. Atwater was intoxicated at thetime of the murder.

Atwater argues that these facts show the followingnonstatutory mitigators: poverty; lack of a father and, later on,a bad father figure; illegitimacy and community opprobrium;a nomadic family lifestyle; emotional deprivation as achild; alcohol abuse by his mother; physical and emotionalabuse; learning disorders and retention in school; grief overthe death of his sister; drug and alcohol addiction; earlypotential demonstrated by his participation in school athletics,economic support for his family, church activities, voluntaryassociation with a beneficial male role model, and voluntarycounseling, which were curtailed by his mother and poverty.

Atwater's personal and family history were, in fact, presented.Defense counsel offered the testimony of four lay witnesses

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and one expert witness in the penalty phase trial. Three ofthe four lay witnesses testified to events that occurred on theday of Smith's murder and one lay witness testified to recentinteractions he had with Atwater and observations aboutAtwater and his family. Dr. Merin, a forensic psychologist andAtwater's expert witness, testified that he examined Atwater.In preparation for the penalty phase trial, Dr. Merin testifiedthat he reviewed depositions, police reports, investigativereports, the autopsy report, and photographs. He conducteda battery of psychological tests on Atwater. He met withAtwater and discussed the events on the day of Smith'smurder, as well as Atwater's personal and family historyand background. He reviewed correspondence from Atwater'smother which supported Atwater's characterization of her.Dr. Merin recounted Atwater's personal history in his reportand at trial, including the following facts: He was born inConnecticut and lived with his mother. She did not marryAtwater's father. Atwater never knew his father. When hewas a small child, Atwater's mother had a daughter, who wasalso illegitimate. She later had a short marriage, and borea son. Atwater's mother was frequently on welfare. WhenAtwater was ten and his sister was eight, his sister was killedin a car accident and Atwater's mother apparently blamedhim. Atwater described his mother as an alcoholic who wasselfish and egocentric, and her boyfriends were reportedlyrich and married. His mother physically and emotionallyabused him. Atwater quit school twice, the first time due toa knee injury which prevented him from playing football andthus gave him no reason to continue to attend school. Thesecond time, Atwater quit after moving to another schooldistrict and attending for five or six months. He quit when hismother ordered him out of the house and he had to live at theSalvation Army. Atwater married when he was 23 or 24 yearsold, and the marriage lasted about four months. He slapped hiswife because she did not clean the house. He has no children.He suffers from migraine headaches and uses Fiorinol andCodeine for relief. He had attended sessions with *234 amental health professional in his early teens, but quit. He takesalcoholic beverages and has a history of smoking marijuanaand using cocaine, LSD, hallucinogenic mushrooms, andamphetamine. He denies that he is dependent.

Dr. Merin's trial testimony reveals virtually the same factualevidence Atwater claims was not presented as fact, but astold to the doctor, which forms the basis for Atwater's claimthat trial counsel was ineffective. The record refutes anyprejudice to Atwater. The facts Atwater wishes to presentas nonstatutory mitigating factors were presented and the

sentencing court weighed these facts. In the sentencing order,the court stated:

In considering any other aspect of Defendant's characteror record and any other circumstances in the evidencewhich was proffered as a mitigating circumstance, theCourt has carefully considered the following: whether theDefendant was under the influence of mental or emotionaldistress (even if not “extreme”); whether the Defendant'scapacity to appreciate the criminality of his conduct orto conform his conduct to the requirements of law wasimpaired (even if not “substantially” impaired) by lack ofintelligence, personality disorder, consumption of alcoholor perception that his aunt was being treated abusively bythe victim. The Court additionally considered and weighedthe Defendant's family background and his lack of a closefamily relationship. All of these factors were presented tothe jury during the penalty phase of the proceedings in thiscase, as well as now being fully considered and weighedby the Court.

In order to establish prejudice as required by Strickland, “[t]hedefendant must show that there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result ofthe proceeding would have been different. A reasonableprobability is a probability sufficient to undermine confidencein the outcome.” 466 U.S. at 694, 104 S.Ct. 2052. Atwaterhas not established any prejudice caused by defense counsel'sfailure to present the requested mitigating evidence as fact,as opposed to the presentation of that evidence through Dr.Merin. The record shows that the evidence as it was presentedwas considered in mitigation, and that the trial court did notfind that this nonstatutory mitigation evidence outweighedthe aggravating factors. There is no reasonable probabilitythat re-presenting virtually the same evidence through otherwitnesses would have altered the outcome in any manner.

[25] [26] [27] Atwater argues that defense counsel shouldhave objected to the prosecutor's use of the backgroundmitigation evidence that was presented as nonstatutoryaggravators; we find no error. Again the record clearly showsthat the mitigation evidence offered was considered by thesentencing court. Atwater also argues that because defensecounsel attempted to get a continuance for the penalty phaseportion of the trial, he was not prepared to proceed when thepenalty phase was begun. This argument, too, is refuted bythe fact that virtually all the evidence Atwater would haveput on in mitigation was actually put on and considered. Forthe same reason, we find no merit to Atwater's assertion thatthe trial court committed reversible error in its sentence of

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death which Atwater argues occurred because his expert, Dr.Merin, was not aware that he had been found guilty of acapital offense at the time of his deposition, which was takenafter the guilt phase but before the penalty phase, and had notinterviewed family members at that time. Again, the *235mitigation evidence Atwater would have put on was actuallyconsidered.

Based on the foregoing, we affirm the trial court's denial of3.850 relief and deny habeas corpus relief.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, and QUINCE, JJ.,concur.

PARIENTE, J., concurs in part and dissents in part with anopinion, in which ANSTEAD, J., concurs.

LEWIS, J., concurs in result only.

PARIENTE, J., concurring in part and dissenting in part.Although I concur with the majority's determination of theguilt phase issues, I dissent from the majority's affirmance ofthe trial court's summary denial of relief on Atwater's penaltyphase ineffective assistance of counsel claim. Because Ibelieve that the trial court erred in denying Atwater relief onthat claim without an evidentiary hearing, I would reverse fora hearing on this issue.

In his postconviction motion, Atwater alleged that counselwas ineffective for, among other things, failing to adequatelyinvestigate and present mitigation in the penalty phase. As aresult of this failure, Atwater alleged that counsel was unableto present a complete picture of Atwater to the jury, and thata complete picture would have provided the jury a reasonto recommend a life sentence. In his 3.850 motion Atwateralleged:

3. Jeffrey Lee Atwater was born on December 24, 1963, in ahospital in Southington, Connecticut. Due to circumstancesbeyond his control Mr. Atwater's father had never met orseen Jeffrey Atwater.

4. Jeffrey and his mother lived in Plainville, Connecticut,a small factory town that frowned on illegitimate childrenand teenage mothers. They received public welfareassistance and moved from one small town to another in

the Plainville area. On December 11, 1965, Jeffrey's sister,Croceann Atwater, was born. Her father Ronald Nolannever married her mother and was a small part of their lives.

5. Atwater's mother, now had two children to raise andsupport on her own. She was unskilled and unable toprovide for them. They were inadequately clothed andemotionally deprived.

6. Ms. Atwater began working as a cleaning woman ata fuel company that was located next to her home. Mr.Atwater's mother dated various men, and when they did notshow up for a pre-arranged dates she would drink gin todrown her sorrows.

7. At age three, Jeffrey was taken to a hospital becauseof constant nose bleeds that would not coagulate. Thiscondition had continued for a year before he receivedmedical attention. When he appeared before a physician hehad black and blue marks on his chin and other parts of hisbody. He was diagnosed with Von Willebrand Syndromeand an Upper Respiratory Infection.

8. When Jeffrey entered elementary school he was placedin “special reading” classes. He had difficulty graspingconcepts and required tutorial help. What is now knownis that Jeffrey has ADD, Attention Deficit Disorderwith a particular language based learning disability. Thiskind of disability causes one to misunderstood [sic] theinformation he receives. People with ADD and in particularwith a learning disability such as this often tune out theworld and react to it from the “disinformation.” Little*236 wonder that Jeffrey lacked self-confidence and was

unable to focus or concentrate on the subject matter beingpresented in class.

9. In 1968, Atwater's mother became pregnant with herthird child. This time she married the child's father. Jeffrey'sstepfather began to physically and emotionally abuse him.

10. In 1974, Jeffrey's younger sister was hit by a car whilecrossing the street near their home. She was hospitalizedwith a fractured skull and placed on a respirator. Two dayslater her mother had the respirator removed and she died.Jeff was distraught over his young sister's death. When hewent to his mother for comfort she responded to him bysaying “Now there's one less mouth to feed.”

11. When Jeff entered high school he developed an interestin athletics and joined the football team and participated incross country running. He was forced to leave his athletic

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endeavors because of his economic situation. He found ajob and gave his mother fifty dollars a week to contributeto the family's expenses.

12. Still looking for emotional support and comfort Jeffattended a local church and began to participate in its youthservices program. His mother did not approve of the Pastorat the church and the relationship he and Jeff developed.He often had Jeff join him and his family for dinner. ThePastor described Jeff as one of the “walking wounded.”Jeff had been abused and abandoned and screamed out forattention. He responded to simple human kindness as anextraordinary act and would develop strong loyalties towho ever was kind to him.

13. When the Pastor was transferred out of state to anotherchurch Jeff was again left on his own without a supportsystem. His relationship with his mother had deterioratedand he was forced out of her home and into the localSalvation Army facility. He was eighteen years old at thetime. He continued to attend high school hoping to be ableto graduate. He began to drink and use drugs which onlyexaggerated his emotional problems. He sought counselingto cope and overcome his addictions but his financialproblems interfered with any consistent care.

In addition to this family and background information thatAtwater presented in his motion, Atwater likewise pointedout that four of the five witnesses presented by counsel wereState witnesses, and that only Dr. Merin was not a State

witness.7 In other words, no family members testified. Onappeal, Atwater further argues that an evidentiary hearing isalso required to determine: (1) why defense counsel presentedDr. Merin's recitation of Atwater's family history as if it wereonly Dr. Merin's version, rather than as if it were the truth;and (2) defense counsel's preparation for the penalty phaseand counsel's desire for a continuance.

In denying the request for an evidentiary hearing, the trialcourt stated:

The Court has reviewed the record and agrees withthe State's contention that defense mitigation witnessDr. Merin, a psychologist, testified to essentially thesame information about defendant's early life and familysituation as outlined in defendant's claim. Defense counselalso presented testimony from Dr. Merin and from threewitnesses regarding defendant's alcohol use. The Statepoints out *237 that the defendant does not suggest whatother witnesses should have been called by the defense

counsel to testify to mitigation. The Court adopts theState's response as to this claim, and finds that defendantdoes not meet the performance component of Strickland v.Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Therefore, this ground has no merit.

As Atwater contends, it is not clear as to whether the trial courtrelied upon collateral counsel's failure to list the names ofwitnesses who would be available to testify as to backgroundmitigation, but to the extent that the court did so, that reliancewas improper. See Gaskin v. State, 737 So.2d 509, 514 n. 10(Fla.1999). As we stated in Gaskin:

[N]othing in the rule states that a movant must allege theidentities of the witnesses, the nature of their testimony,or their availability to testify. It is during the evidentiaryhearing that Gaskin must come forward with witnessesto substantiate the allegations raised in the postconvictionmotion. Therefore, we hold that it was error for the trialcourt to require Gaskin to plead the identities of witnessesin order to be entitled to a hearing.

Id.8

Moreover, as the majority opinion explains, a defendant isentitled to an evidentiary hearing unless: (1) the motion, files,and records in the case conclusively show that the defendant isentitled to no relief; or (2) the motion on a particular claim islegally insufficient. See majority op. at 229. In cases in whichthere has been no evidentiary hearing on a claim, this Courtmust accept the defendant's factual allegations to the extentthat they are not refuted by the record. See id. at 229.

In this case, the majority determines that the evidence Atwatersought to present at the evidentiary hearing was merelycumulative and that “[t]he record ... conclusively shows thatAtwater is entitled to no relief.” Id. at 232. The majority thengoes on to evaluate the evidence. See id. at 233-35. Such anevaluation of the evidence, however, is a function much betterperformed by the trial court after an evidentiary hearing.

Further, Atwater's claim in this case is that his counsel'sinvestigation of his family and background was inadequateand the only real evidence of family and background camein through the testimony of the expert, Dr. Merin, whospecifically did not testify as to truth or accuracy. In fact, Dr.Merin told the jury that “[t]he presented history is essentiallythat, that is what he is telling me. What he is telling me mayor not be factual.” (Emphasis added.) Additionally, Atwaterclaims that defense counsel did not argue the existence of any

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mitigating biographical facts at all, other than to belittle themas details. He thus asserts that his counsel's “presentation” ofbackground mitigation consisted only of an “excuse” for notpresenting it because in closing, the only argument made bydefense counsel with regard to background mitigation was asfollows:

Lastly, given the history that this man gave to Dr. Merin,a history that-and evaluation that Dr. Merin thought wassignificant enough for you all to contemplate and givewhat weight you thought was appropriate, given all of hisbackground of no father, I won't repeat it, I'm sure you canremember the details, this man was a product of that. Given*238 all that, is it no wonder that no one was here in the

penalty phase to speak up for him?

Without an evidentiary hearing, it is impossible to statethat the evidence Atwater sought to present was merelycumulative, where the information that the jury heard attrial came through an expert witness who did not vouch forthe accuracy of the information instead of through familymembers or others close to Atwater who could testify first-hand to Atwater's difficult family upbringing. Without anevidentiary hearing, we do not know the potential qualitativeeffect of this evidence on the evaluation of the aggravationand mitigation-both for the jury and the trial judge. It maybe that defense counsel made a strategic decision not topresent family members or other witnesses and to instead relysolely on the testimony of Dr. Merin. Without an evidentiaryhearing, however, we are unable to make this determination.

Finally, even the majority's discussion of the facts presentedat the penalty phase, see majority op. at 233-34, doesnot completely incorporate all of the mitigating factorsthat Atwater contends that counsel was ineffective fornot presenting. See id. at 232-33. These factors thatwere not included in the penalty phase testimony includecommunity opprobrium with regard to Atwater's illegitimacy,the nomadic family lifestyle, emotional deprivation as a

child, learning disorders and retention in school, grief overthe death of his sister, drug and alcohol addiction, earlypotential, physical and emotional abuse by his stepfather, andattachment to a pastor who was transferred out of state.

Given these allegations, the factual issues that Atwater raisesshould have been resolved in an evidentiary hearing. Indeed,this Court “[has] consistently held that a claim of ineffectiveassistance of counsel usually requires resolution by anevidentiary hearing where the defendant alleges sufficientdisputed issues of fact.” LeCroy v. Dugger, 727 So.2d 236,242 (Fla.1998) (Anstead, J., concurring in part and dissentingin part); see Rivera v. State, 717 So.2d 477, 485 (Fla.1998)(“[W]e agree with Rivera that he warrants an evidentiaryhearing on his claim of penalty phase ineffective assistance ofcounsel.”); Ragsdale v. State, 720 So.2d 203, 208 (Fla.1998)(“We conclude that Ragsdale has stated sufficient allegationsof mitigation that are not conclusively refuted by the record towarrant an evidentiary hearing to determine whether counselwas ineffective in failing to properly investigate and presentthis evidence in mitigation.”); Cherry v. State, 659 So.2d1069, 1074 (Fla.1995) (“[W]e agree that Cherry is entitledto an evidentiary hearing on his claims that counsel wasineffective at the penalty phase.”).

Because I believe that Atwater has sufficiently pled the claimof ineffective assistance of counsel during the penalty phaseproceedings, and because this issue is not conclusively refutedby the record, I conclude that an evidentiary hearing on thismatter was required, and therefore, I would remand on thisissue.

ANSTEAD, J., concurs.

All Citations

788 So.2d 223, 26 Fla. L. Weekly 395

Footnotes1 Huff v. State, 622 So.2d 982 (Fla.1993)2 The issues that were the subject of the evidentiary hearing were (1) whether trial counsel improperly conceded Atwater's

guilt to second-degree murder during the penalty phase closing argument and whether trial counsel prevented Atwaterfrom testifying in his own behalf; and (2) whether trial counsel was ineffective during the guilt phase proceeding becauseof trial counsel's concession of guilt to a lesser crime and issues related to that allegation.

3 Atwater testified that given the opportunity at trial, he would have testified that he was innocent and had not killed thevictim. The trial court ruled that it was too speculative to find that such testimony would have altered the outcome of thecase in light of the overwhelming evidence against Atwater. The trial court also held that defense counsel's plea to the

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jury to consider second-degree murder as an attempt to save Atwater's life, under the circumstances of this case, waslegitimate trial strategy with or without Atwater's knowledge or consent, citing McNeal v.Wainwright, 722 F.2d 674 (11thCir.1984), and McNeal v. State, 409 So.2d 528 (Fla. 5th DCA 1982).

4 Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct.1676, 95 L.Ed.2d 127 (1987)

5 The following claims are procedurally barred because they could and should have been raised on direct appeal: 3, 5,6, 9, 10, 12, 14, 15, 17 (which is a repleading of claims 3 and 9), and 19. See Harvey v. Dugger, 656 So.2d 1253(Fla.1995); Rivera v. Dugger, 629 So.2d 105 (Fla.1993); Mendyk v. State, 592 So.2d 1076 (Fla.1992). The followingclaims are without merit: 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 20, 21 (this claim is a repleading of claim 1 which is morefully discussed in this opinion), and 22. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); Provenzano v. Moore, 744 So.2d 413 (Fla.1999); Blanco v. State, 706 So.2d 7 (Fla.1997); Kennedy v. State,547 So.2d 912, 913 (Fla.1989)(“A defendant may not simply file a motion for postconviction relief containing conclusoryallegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.”). Claim 18alleges cumulative error. Because we determine no errors occurred, we necessarily must conclude that this claim iswithout merit. See Downs v. State, 740 So.2d 506, 509 (Fla.1999) (finding that where allegations of individual error arefound without merit, a cumulative error argument based thereon must also fail).

6 Under Strickland, a defendant must demonstrate (1) deficient performance by counsel and (2) prejudice.7 At the Huff hearing, collateral counsel also stated that “Mr. Atwater's contention is that he wasn't even told that he could

bring mitigation witnesses at the penalty phase.”8 As Atwater advises, the trial court did not have the benefit of Gaskin when it issued its order.


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Appendix F: Transcript from guilt phase closing arguments of trial proceedings on May 2, 1990.

App 036

ON APPEAL TO THE SUPREME COURT OF FLORIDA

JEFFREY ATWATER,

APPELLANT,

VS

STATE OF FLORIDA,

APPELLEE,

CIRCUIT CRIMINAL NUMBER CRC 89-13299 CFANO

APPEAL NUMBER 76,327

rrcEo SID J. Wf-117'1'.

NOV 5 1990

~ ~~~

Alwww.t,;Pllb "-r11 . .... .

TRANSCRIPT OF RECORD in the case of THE STATE OF FLORIDA, Plaintiff

-vs-JEFFREY ATWATER, Defendant, Circuit Criminal Number 89-13299 in the

Circuit Court of the Sixth Judicial Circuit in and for the County of

Pinellas, State of Florida, prepared for use on appeal to The Supreme

Court of Florida.

Presiding Judge:

James Marion Moorman Public Defender Criminal Court Complex 5100 144th Avenue North Clearwater, FL 34620 Attorney For Appellant

James T. Russell State Attorney Criminal Court Complex 5100 144th Avenue North Clearwater, FL 34620 Attorney For Appellee

Honorable R, Grable

App 037

Stoutamire

INDEX - CONTINUED - PAGE 15

DATE OF FILING

October 16, 1990

VOLUME XII

KIND OF INSTRUMENT

Transcript of Proceedings Jury Trial - Volume IV May 2, 1990

STATE'S WITNESSES CONTINUED:

JANET CODERRE Direct by Mr, Ripplinger 1337 Cross by Mr, Schwartzberg 1347 Redirect by Mr, Ripplinger 1351 Recross by Mr, Schwartzberg 1351 Further Direct by Mr. Ripplinger 1352 Further Cross by Mr. Schwartzberg

1352

ADELE CODERRE Direct by Mr. Ripplinger 1359 Cross by Mr, Schwartzberg 1372 Redirect by Mr, Ripplinger 1375

PAGE

1330 - 1499

App 038

1 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT 1/ OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY 2 CIRCUIT CRIMINAL NO. CRC 89-13299 CFANO-K ;x:,

'.~~( i..O ~ 3 CJ X 0 STATE OF FLORIDA, ) ;;~: \' c-, >·

--1 r 4 ) ::..r11 ~

cl •.. -iz .. :; Plaintiff, ) en gr

;or• 5 ) ,:,0 ~:: ==

) 6 vs. )

) ~

7 JEFFREY ATWATER, ) . ) ; ·, :

8 Defendant. ) ' I NOV 5 1990

9 ' ~; SUB&f;t.~,l~~ 10 PROCEEDINGS: JURY TRIAL -.Wp.puty Clem,; -.. .. . 11 BEFORE: The Honorable R. GRABLE STOUTAMIRE

Circuit Judge 12

. ' DATE: May 2, 1990 .... :• 13

PLACE: Criminal Court Complex 14 Courtroom A

Clearwater, Florida 15

REPORTED BY: Tammy J. Berkler, RPR, CSR 16 Deputy Official Court Reporter

Sixth Judicial Circuit 17 State of Florida

18

19

· 20 VOLUME IV

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22

23 ..• '. .. v·

24 ORIGf'NAL 25

KANABAY & KANABAY - OFFICIAL COURT REPORTERS 13J0

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APPEARANCES: RICHARD RIPPLINGER, ESQUIRE -and-

RON SMITH, ESQUIRE Assistant State Attorneys Sixth Judicial Circuit Clearwater, Florida

Appearing on Behalf of State of Florida

MICHAEL SCHWARTZBERG, ESQUIRE -and-

JOHN THOR WHITE, ESQUIRE 405 Central Avenue st. Petersburg, Florida

Appearing on Behalf of Defendant

KANABAY & KANABAY - OFFICIAL COURT REPORTERS 1 'l ., . uu ....

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INDEX TO PROCEEDINGS

VOLUME I

,Jury Selection ................ Ill •••••••••••••••••••••••• 8

Defendant's Motion for Mistrial ....................... 98

VOLUME II

Jury Selection {Cont'd) ............................... 200

Opening Jury Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

Opening Statement by Mr. Smith ........................ 247

Opening Statement by Mr. Schwartzberg ................. 258

STATE'S WITNESSES

MARY SHERIDAN Direct Examination by Mr. Smith .................. 262 Cross-Examination by Mr. Schwartzberg ............ 276 Redirect Examination by Mr. Smith ................ 284

GEORGE PRODANOV Direct Examination by Mr. Smith .................. 286 Cross-Examination by Mr. Schwartzberg ............ 289

JOAN CAMARATO Direct Examination by Mr. Smith .•............••.. 291 Cross-Examination by Mr. Schwartzberg ............ 297

WILLIAM SILVA Direct Examination by Mr. Ripplinger ............. 304 Cross-Examination by Mr. Schwartzberg ............ 313

BERNARD RAWLS Direct Examination by Mr. Smith .................. 315 Cross-Examination by Mr. Schwartzberg ............ 327 Redirect Examination by Mr. Smith ................ 329

KANABAY & KANABAY - OFFICIAL COURT REPORTERS 1 . ') . c.J .. : ..

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INDEX TO PROCEEDINGS (Cont'd)

DALLAS HOLTMAN Direct Examination by Mr. Ripplinger ............. 337 Cross-Examination by Mr. Schwartzberg ............ 357

JOHN SCHOFIELD Direct Examination by Mr. Ripplinger ............. 360

WILLIAM JACOBS Direct Examination by Mr. Smith .................. 368 Cross-Examination by Mr. Schwartzberg ............ 373 Redirect Examination by Mr. Smith ................ 374

FRANK REINHART Direct Examination by Mr. Ripplinger ............. 375

VOLUME III

PATRICIA TERRY Direct Examination by Mr. Ripplinger ............. 393

ROY KIRBY Direct Examination by Mr. Smith .................. 396

ALLISON SIMONS Direct Examination by Mr. Smith .................. 400 Cross-Examination by Mr. Schwartzberg ............ 410 Redirect Examination by Mr. Smith ................ 411 Recross-Examination by Mr. Schwartzberg .......... 414 Further Direct Examination by Mr. Smith .......... 415

DAVID ATTENBERGER Direct Examination by Mr. Smith .................. 416 Cross-Examination by Mr. Schwartzberg ............ 424 Redirect Examination by Mr. Smith ......•......... 425

MARK BABYAK Direct Examination by Mr. Ripplinger ............. 427 Cross-Examination by Mr. Schwartzberg ............ 471 Redirect Examination by Mr. Ripplinger ........... 473

KANABAY & KANABAY - OFFICIAL COURT REPORTERS

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EDWARD CORCORAN Direct Examination by Mr. Ripplinger ..........•.. 475 Voir Dire Examination by Mr. Schwartzberg ........ 477 Direct Examination by Mr. Ripplinger (Cont'd) .... 477 Cross-Examination by Mr. Schwartzberg ............ 498 Redirect Examination by Mr. Ripplinger ........... 515 Recross-Examination by Mr. Schwartzberg .......... 520 Further Direct Examination by Mr. Ripplinger ..... 522 Further Cross-Examination by Mr. Schwartzberg .... 523

MARY SHERIDAN Direct Examination by Mr. Smith .................. 525

FRED MARIANI Direct Examination by Mr. Ripplinger ............. 531 Cross-Examination by Mr. Schwartzberg ............ 549 Redirect Examination by Mr. Ripplinger ........... 557

MICHAEL PAINTER Direct Examination by Mr. Smith .................. 561 Cross-Examination by Mr. Schwartzberg ..•......... 568 Redirect Examination by Mr. Smith ................ 573 Recross-Examination by Mr. Schwartzberg .......... 574 Further Direct Examination by Mr. Smith .......... 575

VOLUME IV

JANET CODERRE Direct Examination by Mr. Ripplinger ............. 583 Cross-Examination by Mr. Schwartzberg ............ 593 Redirect Examination by Mr. Ripplinger ....•...... 597 Recross-Examination by Mr. Schwartzberg .......... 597 Further Direct Examination by Mr. Ripplinger ..... 598 Further Cross-Examination by Mr. Schwartzberg .... 598

ADELE CODERRE Direct Examination by Mr. Ripplinger ....•........ 605 Cross-Examination by Mr. Schwartzberg ............ 618 Redirect Examination by Mr. Ripplinger .....•..... 621

State Rests 622

Defendant's Motion for Judgment·or Acquittal .......... 623

KANABAY & KANABAY - OFFICIAL COURT REPORTERS 13 .. ' u ··.1

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Defense Rests ......................................... 630

Defendant's Renewed Motion for Judgment of Acquittal .. 633

Charge Conference ..................................... 641

Closing Argument by Mr. Schwartzberg .................. 662

Closing Argument by Mr. Ripplinger .................... 672

Rebuttal Argument by Mr. Schwartzberg ...............•. 704

Jury Charge ........................................... 712

Verdict ................................................ 739

Polling of the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 40

Court Reporter's Certificate Page ..................... 745


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STATE'S EXHIBIT

No. 13 No. 1 No. 18 No. 15 No. 16 No. 19 No. 24 A-T

INDEX TO EXHIBITS

DESCRIPTION

Photographs of Defendant Page from logbook Defendant's pants Defendant's shoes Defendant's shirt Defendant's hat

RECEIVED

No. 2 A-E Crime scene photographs Shoe prints

369 273 323 324 325 326 342 350 354 354 354 354 435 412 447 362 369

No. 5 No. 4 No. 6 No. 7 No. 10 No. 8 No. 9 No. 12 No. 14 No. 17 No. 22 No. 26 No. 3 No. 25 A-R

Telephone cord ATM receipts Towel found on newspaper rack Victim's blue jeans Tube of victim's blood Victim's pubic hair Victim's fingernail scrapings Videotape taken of scene Photographs of defendant's hands Defendant's socks 370 Defendant's blood sample 399 Hair removed from towel 412 Photographs of State's Exhibit Number 2 420 Photographs of victim 484


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660

MR. SCHWARTZBERG: Yes, sir.

THE COURT: All right. Do you want me to tell you

how much time you have left?

MR. SCHWARTZBERG: I have my watch up there,

Judge, and hopefully I'll be able to pay attention to

how far I'm doing, so I appreciate that.

THE COURT: All right. Anything else before we

bring the jury in?

MR. SCHWARTZBERG: Nothing for the Defense, your

Honor.

THE COURT: All right. If you'd ask the jury to

return, then, please.

THE BAILIFF: The jury has returned to the

courtroom, your Honor.

(Jury Present)

THE COURT: Thank you. Good morning, ladies and

gentlemen. I almost thought we were going to make it

at 10:00 this morning. We were very, very close, but I

think that you recognize there are a number of trials

proceeding this week, and this courtroom,

unfortunately, was needed by another judge for the last

few moments, but I think at this time we are ready to

proceed with the final day of this trial.

The Court told you yesterday that you had heard

all the witnesses who would be presented for your

' 1 ' " ,! ~.. · ... ............. ... KANABAY & KANABAY - OFFICIAL COURT REPORTERS

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661

benefit. We have arrived at that point at which I've

told you the attorneys will have another opportunity to

speak directly to you. Both the attorneys for the

State and the Defense will have the opportunity to

present to you their final argument.

Now, I would remind you that I earlier told you

that what the attorneys say to you in their final

argument is not evidence. You have at this time heard

all the evidence in the trial. The attorneys will be

speaking to you in a persuasive fashion tending to show

you their view of what they believe the evidence has

shown. I will tell you that should their recollection

vary from yours, it is, of course, your duty to call

upon your own recollection of the evidence that you did

hear.

Following the argument by the attorneys, and I

would tell you that the procedure calls for Mr.

Schwartzberg to have the ability to speak to you first,

followed by Mr. Ripplinger or Mr. Smith, then Mr.

Schwartzberg will have a final argument for you. The

Court, then, would anticipate it would be time for our

luncheon recess. Coming back from lunch, then, I would

instruct you upon the law that you are to apply to the

facts that you have heard in this case, and following

my instructions to you on the law, then you would be

KANABAY & KANABAY - OFFICIAL COURT RF.PnR~RR~

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asked to go to the jury room to deliberate your

verdict.

662

So I would ask if you would continue, then, as we

reach this phase of final arguments, that you will give

the same attention that I see you have given throughout

the course of the proceedings to these attorneys.

Thank you.

Mr. Schwartzberg, if you'd like to prepare or

. present your first argument, you may.

MR. SCHWARTZBERG: Thank you, Judge. May it

please the Court, counsel.

Ladies and gentlemen of the jury: It was hard

enough to listen to the testimony for the last two

days, but now the hard part really begins, the

deliberations. So at this time, on behalf of myself,

my partner, John White, and our client, Jeffrey

Atwater, we'd like to take the opportunity to thank you

for being jurors.

I'm a very strong believer in our jury system and

I think it's important for us to realize why we're

here. My job, that of the State Attorney, is to

represent our respective clients as honestly and as

straightforwardly as we possibly can. Your job is to

do justice. You do justice in this case in only one

way, by rendering a true and just verdict based on the

·•. . 1 '] :t~

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law and the evidence.

Now, ladies and gentlemen, there have been two

counts against Mr. Atwater which have been tried

together. However, you must render an independent

verdict on each one of the counts. Count One alleges

that Jeffrey Atwater on August the 11th of 1989 did

murder Kenny Smith. And the State has alleged in the

indictment that it is Murder in the First Degree.

Count two alleges that on August the 11th of 1989,

Jeffrey Atwater did rob Kenny Smith.

663

Your verdict must be, as I say, independent of

each case. In other words, if you return a verdict of

guilty as to count One, you may return a verdict of not

guilty as to Count Two. And vice versa. Or you may

return a verdict of guilty on both counts or not guilty

on both counts, but your verdicts must be separate as

to each count.

Now, while I'm up here speaking with you now, I'm

going to address Count Two. And remember, if you will,

that the State of Florida told you throughout the

entire course of this case that they can prove Count

One, Murder in the First Degree, by one of two ways,

first, Premeditated Murder, and secondly, Felony

Murder. And in other words, that Kenny Smith died

during the commission of that robbery.

1 ) .... , •.:1 ...... .,,

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664

If you'll recall, the State Attorney, when he

first got up here and spoke to you in opening

arguments, said to you, this was a murder over money.

But ladies and gentlemen, three days later, the only

person who told you this was a murder over money sits

right there, and he wasn't under oath, and he wasn't a

witness. He's a State Attorney. What he told you is

not evidence. What came from this witness stand is the

evidence, and the evidence discloses that this was

anything but a murder over money. There was no

robbery.

The judge is going to instruct you what the

elements of a robbery are, but basically, by

definition, a robbery is the forceful taking of money.

And that's what the State of Florida has tried to show

to you, that on August the 11th of 1989, Jeffrey

Atwater took a knife and stabbed a 64 year old man nine

times in the chest, nine times in the back, slit his

throat, slashed his face up, for what? $20? 6'3", 180

pound Jeffrey Atwater slit this guy up for $20? That's

what the State wants you to believe. And that's all

that we're talking about money-wise, is $20, if you

believe the testimony of Joan Camarata, because she's

the only person that took the witness stand during the

course of this trial and told you that Kenny Smith had

VA l\T 7\ n '7\. '-" t- T.,.-,., ll.1 '11. n 'JI,,,

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any money whatsoever in his pockets. $20. But what

else did Joan Camarata tell you, that Kenny Smith did

not carry a lot of money.

665

Ladies and gentlemen, the State must prove to you

beyond and to the exclusion of every reasonable doubt

that Jeffrey Atwater robbed Kenny Smith. What evidence

do you have that that's what took place? I submit to

you that there is no evidence, none whatsoever, other

than the fact that when they find Kenny Smith's body,

his pockets are turned inside out. But look at the

pockets when you go back into the jury room. Look and

see if you see any blood inside the pockets. And then

ask yourself the same question that I asked Detective

Mariani when he took the witness stand.

You're going to see the crime scene video. You're

going to see that on the coffee table there are various

items, two packs of cigarettes, a lighter, some ATM

receipts. He's in his own apartment. Isn't it

reasonable that Kenny Smith in relaxing, reached into

his pockets, pulled everything out of his pockets, left

them on the table and left his pockets where they were?

Isn't it reasonable? Reasonable doubt.

Is it reasonable to believe that 6'3", 185 pound

Jeffrey Atwater had to do what the State's telling you

he did, breaking five of Kenny Smith's ribs, hitting

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666

him in the eye and in the chin for $20? You must find

beyond a reasonable doubt that that's what took place

on August the 11th of 1989 before you can return a

verdict of guilty as to the robbery count.

Use your common sense. I want you to go back into

that jury room and review that crime scene video. Look

at the condition of that apartment. Outside of the

living room where Kenny Smith's body is found, the rest

of the apartment remains untouched. I want you to look

in the closet and the condition of the clothes, how

they're neatly hung up. I want you to see if that

house has been ransacked, because I submit to you when

you look, you will find that it has not. Are the back

pockets of Kenny Smith out? No, they are not. Are the

keys that were in the back pocket of Kenny Smith

missing? No, they are not.

The only evidence whatsoever that the State of

Florida asks you to return a verdict of guilty on as to

robbery is the fact that Kenny Smith's pockets are out.

Period, the end. And ladies and gentlemen, that is not

a sufficient proof. You all promised to hold the State

of Florida to their burden of proof, a burden that

these gentlemen willingly told you that they undertook.

Send them a message, tell them that they didn't do it.

And if you find that anything was taken from Kenny

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667

Smith by Jeffrey Atwater, I submit to you that it was

an afterthought. It was taken from the body of a dead

man, and ladies and gentlemen, that's not robbery. If

anything, if you can return any verdict whatsoever as

to Count Two, it would be petty theft, but I submit to

you once again that the evidence does not support that

whatsoever.

There were three witnesses who testified that they

ever saw Kenny Smith with any money -- excuse me, only

two testified they ever saw Kenny Smith with any money

that day, Joan Camarata and George Prodanov. But if

you remember their testimony, and remember when I got

up here in opening statement, I told you it was

important for you to listen to the times. Joan

Camarata, the woman who told you that she gave Kenny

Smith $20 right before he left, told you that from

11:00 until 7:30 p.m., when Wheel of Fortune ended, he

was with her. And then he left.

But George Prodanov, the man who allegedly saw

Kenny Smith in the Suncoast Market, tells you that

approximately a quarter to seven that same night, Kenny

Smith is in the suncoast Market buying two packs of

cigarettes. And I submit to you that if the timing is

off and, in fact, Joan Camarata gave Kenny Smith $20

before he left her apartment and Kenny smith then went

1 .: -, •:r.._...;.;

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668

down to the Suncoast Market and purchased two packs of

cigarettes with that $20 bill, he still would not have

in his pocket a $20 bill. There would be change.

But remember what Detective Jacobs told you was

found and recovered from Jeffrey Atwater when he took

him back to the police station. They took four bills

out of his wallet -- out of his pocket, a $50 bill, two

$20 bills and a one dollar bill, and they took $4.38

worth of change out of his pocket. That's it. And I

submit to you that if what the State is trying to tell

you is true, what happened to the rest of the money?

The only other person who told you or suggested to

you that it was a robbery, was Detective Mariani, and

the reason? Because Mr. Smith's pockets were turned

out. But Detective Mariani was extremely honest and

forthright on the stand because, as I remind you, when

I asked him the question, isn't it possible that Kenny

Smith, realizing he was in the safety and comfort of

his own apartment, reached in and pulled out his

pockets, pulling everything out, that that's where they

stayed? Detective Mariani said, yes, it's possible.

Ladies and gentlemen, what is a reasonable doubt?

The judge will tell you specifically what a reasonable

doubt is, that it's not a speculative doubt, a forced

doubt, it's one that if you go back into that jury room

1 1 . ·'. , .. .,_:.,

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669

and deliberate and you say to yourself, you know, it

might have happened that way, but it might have

happened the way that Mr. Schwartzberg just told us,

that's a reasonable doubt. If your conviction of guilt

waivers, that's a reasonable doubt, and you must, in

upholding your oath as a juror, return a verdict of not

guilty.

What other evidence has the State of Florida put

before you or brought before you which would remotely

indicate to you that there had been a robbery? Three

ATM receipts. And they're going back into the jury

room with you, and I ask you to look at them. One of

them is dated August the 3rd of 1989 for the amount of

$100; one of them is dated August the 4th of 1989 in

the amount of $95; and one of them is dated August the

10th of 1989 for $50.

When I spoke with you during the course of voir

dire, I told you that there was some things that you

could take back into the jury room with you outside of

the evidence and the testimony, and that was your

common sense and your life experiences. ATM machines

give $20 bills, $10 bills and $5 bills. They don't

give $50 bills.

The State of Florida must prove to you that a

robbery took place, and I submit to you that they have

t ... ._1'.T':\011.'l!' t' 1.r1'.1t.1'7tn7t,,

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670

failed to uphold their burden.

Jeffrey Atwater, you heard his family come in here

and tell you that when he came home after allegedly

killing Kenny Smith, he told them everything he had

done. And when his aunt, his mom, his natural mother's

twin sister, said, did you pay the electric bill,

Jeffrey Atwater exploded. All you Atwaters are

concerned about is money.

Did he reach into his pocket and say here, here's

money from Kenny Smith that I just took, go ahead and

pay the bill yourself? Did he say anything at all

about having robbed Kenny Smith? He told them that he

killed him, he told them that he allegedly slit his

throat, but did he say anything to anybody about

robbing Kenny Smith? And I submit to you that the

answer to that question is a resounding no. Robbery?

No way.

As to Count Two of the indictment, you must do

your duty as a juror and return the only verdict that

the evidence and the law supports, and that is not

guilty. And you know, because the State has failed to

meet their burden as to that element, as to that crime,

you can also discount the second way which the State

has told you that they're about to prove First Degree

Murder, that being Felony Murder, because the State is

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going to tell you, and the judge is going to tell you

that before you can return a verdict of Murder in the

First Degree based on a Felony Murder, you must find

that the murder occurred during or as a direct result

of the felony.

671

Robbery. Ladies and gentlemen, the State wants to

have their cake and eat it too. All along, the State

has told you that we're going to prove it either/or,

and they've made a half-hearted attempt to show you

that it was a robbery.

And when I get up here in the second half of my

closing argument, I'll tell you why the State did that.

I'll tell you, because the State knows that they could

not prove premeditated murder. The State knows that

they were hoping that you would boot strap them into a

First Degree Murder conviction by returning a verdict

of guilty as to Felony Murder.

Do your jobs, do justice. As to Count Two of the

indictment, robbery. You must find Jeffrey Atwater not

guilty. As to Felony Murder, Murder in the First

Degree, you must find Jeffrey Atwater not guilty.

Now, Mr. Smith will be up here in a second to talk

to you and I'll be up here one last time, and then this

case will be in your hands. I urge you to do your

sworn duties. Thank you.

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672

THE COURT: Thank you, Mr. Schwartzberg. On

behalf of the State, Mr. Smith or Mr. Ripplinger. Mr.

Ripplinger, if you'd like to present the State's

closing, you may at this time, sir.

MR. RIPPLINGER: Please the court, members of the

jury. Mr. Schwartzberg says send a message to me? I

say send a message to him. Send a message to him that

he is guilty of First Degree Murder and robbery. Send

a message to him that on August 11th, 1989, he walked

into that apartment and he deliberately, coldly,

mercilessly killed Kenny Smith, and he took his money

as he was laying there in a pool of his own blood.

And what did he do afterwards? You know, he makes

a big point, Mr. Smith said this case is about money.

It's about money, and it's -- and it is about

relationships. It's about jealousy. What happened

that day was a culmination of months of resentment from

him to Mr. Smith, resentment of the relationship that

Kenny had with his aunt who he called Mom.

You heard about the incident where he broke up in

the middle when they were -- she had a little trouble

talking about it, but Kenny was feeling romantic, she

was embarrassed about that while he was in there. What

else, she said all we wanted was a little romance.

Resentment building. Talking about Kenny Smith, who,

U'hl\JAA.i\V' .f. lt7t.'1.fAA7\'\.• _ f"'\t:'lt:"ITr'T':\T ~n.TTnm nr,nrtn,,.,T"'ln,... 1 1 .•

L; ·-.'

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673

you know, ducks behind a corner or, you know, out of

the sight when he sees the man coming, says he's afraid

of him, I'm not going to give him anymore money. I'm

not going to give him anymore money.

Like we -- in voir dire we talked about how, you

know, this isn't television, this isn't the way things

are, everything isn't neatly wrapped up within an hour.

Before this crime occurred, Adele and Kenny had their

life, they had their ups, they had their downs. People

of modest means. Kenny, he lives in a apartment for

elderly people. It's government subsidized. You saw

his apartment. He doesn't have a whole lot of

property. He doesn't have a whole lot of property in

that house to ransack.

You can see from his account balances on the ATM

sheets he doesn't have a lot of money, but into their

life comes Jeffrey Atwater, and he resents this kind of

relationship, but Jeffrey Atwater, out of that

resentment, he's just looking out for number one. All

he cares about is number one. He goes in, he butchers

the man, he takes his money, so what does he do? He

goes right to Aunt Adele, who supposedly, you know, he

cares about, and he comes in, sorry, Mom, I killed

Kenny. I made sure that bastard was dead, tells them

he enjoyed it.

1- 1 -·~·-, '•- /

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674

Folks, every time he slashed at Kenny, stabbed

Kenny, beat Kenny, that was a blow right into his mom.

So this is about money, about resentment and it is

about relationships. And the uncontroverted evidence

in this case is it is about a plan that he carried out,

something had been building up over a long period of

time. Kenny can't walk in here and tell you what

happened. A murder like this, by its very nature,

happens out of the presence of eyewitnesses to the

actual killing. The evidence that you've seen, the

photographs, the circumstances that you learned before

and after this case do the talking for Mr. Smith.

Now, the way the Defense Attorney tries to -- the

Defense Attorney's view of the world, I guess, is that

every little fact, every little circumstance stands by

itself, and it's not connected with all the other facts

and the circumstances in the case. Look alone in

isolation, the blood that was found on the defendant's

pants, well, that could be -- it's inconsistent with

his blood and it could be consistent with the victim's

blood, or four percent of the white male population.

But when you put all the facts and circumstances

together, you know that's Kenny's blood. That's what

you gotta do.

He says use your common sense. That's right. Use

1 ~ 1 • . ..... . ....

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675

your common sense and don't just look at one single

fact in isolation. Put it all together. The history

of this case is that during the last year, the

defendant started living with Adele. Kenny was living

with her for a while and finally he moves back to the

John Knox Apartments, getting along.

You heard Mr. Painter. Mr. Painter said that

numerous occasions, referring to Kenny and Adele, he's

going to either get him or kill him. And a week before

the murder, he says, it's going to happen, it's going

to happen soon, were the exact words. It's not going

to be too long before that happens. A week later, what

do we find? Joan Camarata tells us that he's coming

around the apartment where Kenny used to live, where he

still spends a lot of time socializing with Joan and

her husband, and he's coming into the courtyard looking

around. Kenny ducks behind a window or the corner,

wherever they were. He's acting afraid. He tells her

he's afraid of him, says I'm not going to give him

anymore money.

That night, August 11th, we know that Kenny was

with Joan for a while that day. She says he drank

about a six pack of beer. We know that he was in the

Suncoast Market buying a couple packs of cigarettes.

We know he was at the John Knox Apartments. We know

r,."'l":IT"'"'"'I"' "IT __ ,.,,_,..... .., ------- .... 1 "', .. ~. a .. - ..

App 061

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676

that Joan says he left, she saw him having money.

That's $20. Mr. Prodanov says that he had money in his

pocket when he left, and he purchased, you know, a

couple of packets of cigarettes. Remember the two

packs of cigarettes on the coffee table?

The time, Defense Attorney makes a big deal about

the times, but the times -- I'm sure he'll probably say

something about Mary Sheridan. The thing you have to

remember about times and people and human nature and

recollections are that it is frail, and that looking

back, if you're not really paying attention to any

particular item, you're not going to remember a time

with precision, you're going to say it's around such

and such a time, so forth.

Joan Camarata remembers 7:30 because of the

television show Wheel of Fortune. There was something

that she was able to remember that allowed her to focus

in and say, yes, I know it's that time. Now, Mr.

Prodanov, he doesn't have that, so at 7:30 he's leaving

Joan's, he's going by the Suncoast Market.

Then we hear Mary Sheridan. Now, Mary Sheridan,

herself, she's just trying to remember independent of

something that helps her remember the exact time.

She's got to be able to give you approximations. But

what helps her remember the time is in her very job,

App 062

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677

she uses a clock and this log sheet, and she says,

well, for instance, it seems like he was up there, you

know, ten to 20 minutes. But we do know that he did

sign in, and she says that was accurate, at 8:04, and

we do know that he left when he -- as soon as he came

down, called her back just to make sure it was

absolutely clear, as soon as he came down on the

elevator, the time goes down at 8:29. So he's up there

25 minutes.

But he gets there and he says he's his grandson.

I haven't seen him in -- I'm from Connecticut. I

haven't seen him in years. I'm coming down to surprise

my grandfather, Kenny Smith.

You can take this back, you can look at it. You

can see where Mary had been doing her job that day

having the visitors log in, log out. You know she's

keeping the times regularly, right up somebody had

just checked out about 7:58. And he had the defendant

down at 8:04.

And look at the signature of this. It's not

Atwater, it's about -- it's Smith. He says he's

Jeffrey Smith. He says he's his grandson. Why did he

say that? He knows him, why does he need to do that?

Don't call and let him know I'm coming. I want it to

be a surprise. But it just doesn't sit right with her.

1 1 ·-,, .... App 063

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678

She -- you know, says, well, if she hasn't seen

him in years, you know, why isn't he spruced up instead

of, you know, looking like a bum here? So he goes up

there and comes back down and now the story changes.

There's an addition to it. It doesn't seem right to

her. He says that he called and he's in fear of his

life and that he knocked on the door and there was no

answer. And he says, what do you do to check on

people? He doesn't say, will you please go up there

and check on him, will you please get a passkey and go

up there and look, I think something's wrong. He just

says oh, how do you check on people? Okay. And he

leaves, very nonchalantly, very calmly, very coolly.

Just the way he walked in.

But still, this isn't seeming right to her and

she, you know, even tells him about it, argues with him

a little bit, well, you know, he didn't seem scared

when he came in a little while ago. He didn't ask to

have the police called or anything. She seen him come

and go, nothing seems wrong to her. So she goes and

she gets the key and she finds him. She finds him

there laying on the floor. She just looks in real

quick, knows something's wrong and the police are

called right away.

They get there about 8:40. She has very good

KANARAV & KANARAV - nFFTf'TlH. f"nTTD'T' oi;onAD'T''C'Deo ·1 I -·~ .· ,,.,..,,., __ :

App 064

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679

description of the person. She was watching him, she

was looking at him and she noticed certain things about

his clothing, his appearance, and she told the police

because she said, you think somebody would, you know,

spruce themselves up if you're going to see your

grandfather that you haven't seen for years, so she

looks at this man and says she heard everybody say this

is what he was wearing, this is the way he looked that

night. She remembers corduroy pants. She remembers

the hole in the right knee, she remembers the fly being

down.

You can look at his pants, if you can stand to

touch them, the zipper's broken. She remembers the

shirt had something about a Florida bank on it. It's

right there. She remembers a dirty-blonde, stringy

hair, shoulder length. She remembers him wearing a

wearing a hat.

The police, right away they put out the

description. They start checking the neighborhoods and

they -- the police, they've been downtown working there

for a while, they know the places where to go to find

people who might be engaged in this type of activity,

and they go around to the bars, and within an hour and

a half, within an hour and a half, here he is, calmly

sitting on a bar stool drinking a beer with Kenny

l(AN.l\Rl!.V 1:, T(i\1\Tl!.Rl!.Y _ n'l:'J:'Tf'Tl\T f"f"\TTDr't1 neonnnmr.onn 1 .. ·.; ... --~ App 065

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Smith's blood still fresh on his pants and his shirt

and his shoes.

680

They bring him back, there's an ID. Now, remember

her description that she first thought, she thought

these were tan pants. That's -- that's an example of

how eyewitness testimony isn't going to be exactly, how

people's perceptions and memory aren't going to be

entirely precise, just like with times, but is there

any doubt that this is the same person she saw? No,

there isn't. There's no doubt.

The police take him. His response to Silva --

Officer Silva and Technician Jacobs, oh, at work, I'm a

quick bleeder. You know it's not his blood.

Technician Babyak told you it is absolutely, 100

percent impossible that the blood group substances that

he told you that he found on his shoes and the pants

could have come from any kind of bleeding from the

defendant. The PGM's, as you recall, the haptoglobins,

the Hp or the Ge's they're absolutely inconsistent with

his blood, and absolutely consistent with Kenny Smith's

blood, an absolute lie that there's no way he's going

to get out of.

There's no fresh injuries that shows where he has

any kind of wounds capable of bleeding like that. Go

back there, you know, take a look at these --

1 ,. ~w

App 066

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681

particularly take a look at the right at the right

leg. You can see the little speckles of the spattered

blood on the bottoms that the police saw, the

defendant's own family saw that night.

Consider the testimony of the police officers with

him shuffling trying to get the blood off of his feet,

and then consider the crime scene. You've heard a lot

about it. Consider, as the Defense Attorney points

out, that the 6'3", 180 pound Jeffrey Atwater and this

64 year old overweight man who Mr. Painter told you he

just had trouble getting around.

What happened here, I submit that the evidence

shows from the testimony of the medical examiner and

the testimony of the serologist, the testimony of the

technicians, Mariani, that the defendant got up there,

would have had to have been let in, no sign of forced

entry at the door, starts out with a struggle and the

beating. You can see in the autopsy photos, you can

see some of the bruising over his eye and his chin

area.

That could have gone on for, you know, a short

period of time. He could have fallen once, maybe

twice. There's bruising on his knee, we all saw that.

So he -- he's hit one more time, enough to knock him

over here in the corner by the chair, where he had that

1 . ~-. -:&uJ

App 067

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682

small pool of blood that we've been talking about. You

heard that this type of pooling that was consistent

with blood dripping straight down, forming a pool.

It's not like the blood of a wall that's being

spattered up, so something had to be directly over

that.

If you look at his body, there's no type of wounds

on his arms or his legs to get in that little corner to

do that, but we look at the lacerations on the back of

his head. That fits right in there. You can see the

smear mark here. The body, either by himself or by the

defendant, gets over into the area here of the killing.

We know because there's no blood on his feet, very

little blood other than some transfers towards the

front of his pants, that he wasn't up for a lot of the

bleeding, if any. It's possible he's stabbed in the

back, could have bled over here, possible that his head

could have bled making a little puddle here that he's

flopped over on his stomach. You can see how these two

correspond.

Detective Mariani was showing some of you that the

other day. I noticed it too. so he's -- it's possible

in the struggle he's stabbed in the back a few times,

possibly while he's up, possibly while he's down. But

we know it was done, and we know it had to be turned

1 . .i .• •• = ... j

App 068

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683

over sooner or later, and we know he was on his

stomach.

And just use your common sense, think of what the

medical examiner, Mariani noticed, there's not a lot of

blood in his chest area consistent of somebody with his

face slashed some 20 times and his nose about cut in

half. If he's up for very long, if he was on his feet

while that cutting's going on, you would expect there

would be a lot more blood dripping down and around his

chest area. It's just not there, but it is all back in

there, and you can see, go back and sideways motion

here, where he would have been at his last throws of

life.

And after that, after a beating, after being cut

various times, how much he's able to resist, he's going

to start diminishing and diminishing as the attack goes

on. He's got broken ribs. He's been hit in the face,

he's been hit in the jaw, stabbed in the back, and Dr.

Corcoran told you that it's his opinion that the life

threatening injuries, which is only logical and makes

sense, the non life threatening injuries would have

occurred first and then moved on in a progression to

where he got the fight -- fatal blows to his heart, and

that's what he died from, is the medical examiner's

opinion.

Ki\Ni\Ri\Y ,:. T(i\Ni\Rll.V - ()FFTf'Tll.T. f'f'lrtO'TI oi:;,or.O'Tlt:'Dc<

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App 069

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684

So he's down there, he's on the ground, he's not

in any type of aggressive posture. There aren't any

weapons found in the house. He has lack of defensive

wounds, indicating that he was rendered virtually

helpless and on his back in a very short time. He

certainly in no physical condition with his bare hands

to be any type of a threat to the defendant. And he's

left there.

You can see where the defendant walked around. We

know he walked around in there. We've got his shoes.

We sent them off to the FBI, they compared them, and

they're consistent in design, approximate size, general

wear, and on one of the shoes there's a possible unique

identifying factor. That's his shoes.

We also found the towel. He said he wiped off a

knife and threw it away later. It's got blood on it,

it's got one of the victim's pubic hair. He takes a

towel from the apartment when he leaves, wipes off the

knife, throws down the towel, and somewhere down the

line he gets rid of the knife.

The defendant then -- evidence of a robbery. What

else does this tell us that Mr. Smith can't verbalize?

Look at his pockets. You know, Mr. Schwartzberg wants

you to believe that people just commonly walk around

their houses like this. (Indicating) And he's trying

1 ,'. .. ;

App 070

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to say, obviously, that this materials from the

cigarette packs and the ATM receipts would have

necessarily come from his pants pocket and he just

emptied them out like that.

685

Well, he's got his shirt off. People generally

carry their cigarettes in shirt pockets. Take your ATM

receipt, keep things in your pocket. And there's no

money found anywhere in that house. There's no money

at all. But we have these ATM receipts showing that he

had been getting money in the days before his death.

On April 3rd, he took out $100; April 4th he took out

$95; and the day before this he took out $50, leaving a

balance of $51 in his account.

He had money. The witnesses say that he had

money, Prodanov and Mary Sheridan, and the defendant

was found with money. He was found with $91, a 50, two

twenties and a one, and $4.38 worth of change. And

also remember that he was found in a bar where he

was -- you know, bought a beer, possibly left a tip.

The Defense Attorney said in voir dire, you heard

him say bizarre things during the course of the trial.

It is bizarre to suggest that this man had absolutely

no money with him in that apartment. Remember the

$4.38 worth of change the defendant had? Okay. Right

in the general area where we got the pockets out, if

K/1.Ni\RII.Y t? Ki'.\Ni'.\Ri'.\V - llPPTrTllT. rnr1orn oi:;,or,orr>C'or,

App 071

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you look closely in these photographs of the shoe

prints, there's some pennies on the ground, just the

kind of thing y6u'd expect if somebody's pulling

pockets out and maybe some change flops out on the

ground.

686

Detective Mariani told you from his experience in

other cases where robberies took place that people had

the -- the assailants had taken the pockets out, it

defies reason and common sense to believe anything

other than a robbery occurred and that money was taken.

And maybe, maybe you're all wondering why his

pants are undone. Is there something sexual here?

There's nothing about the investigation or the history

of this case of Kenny or even the defendant to suggest

that that would go on. And there's two things that the

reason for his pants being undone, is, there's a pair

of jeans. Jeans sometimes, you know, fit people kind

of tightly. Maybe it was easier to get the pockets out

if the pants were undone, but I -- my personal opinion

as to why they were undone --

MR. SCHWARTZBERG: Objection, your Honor.

MR. RIPPLINGER: Excuse me. I believe the

evidence shows more clearly that Kenny Smith is a beer

drinker. You saw in the video there's some cans of

beers that are sacked up. Detective Mariani told you

KANARAY ~ Ki\Ni\Ri\Y - nJ:;"FTrThT. rnr10.,., oi:;,of'\o.,.,i:;,oo

App 072

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687

right here in his chair in Number "H", he's got a cold

one sitting right out. Kenny comes home from the day,

kicks off his shoes, takes off his shirt, opens up the

windows, turns on the TV, goes to his chair with his

cold beer, with his beer belly kinda hanging up and he

just kinda unsnaps his pants and sits down to have a

little relaxation, and then there's a knock on the

door, and that's the result afterwards.

The time for this to happen, he's up there for 25

minutes. The Defense Attorney tries to make a big

deal, oh, wouldn't he be sweating, wouldn't he be

excited? Well, the medical examiner, and you can tell,

testifies in ranges of when things can happen. He

can't tell you exactly this time and so forth. It's

just like the time of death, He says, well, in this

case it happened to come back exactly four hours when I

got this, when I took the vitreous out of the eye.

But so when he says, you know, it could have

happened in a minute, well, yes, you just keep going

like that and like that and you could probably get in

about 40 within a minute, but, you know. There's a

struggle going on. You know that he's being beaten, so

within a minute to ten minutes, all of this could take

place.

He's up there longer than that. There's time to

App 073

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688

regain your composure. There's time to go over to the

sink and wash all the blood off your hands and your

arms and wash it out of the sink. There's time to walk

around the apartment and see that this man didn't have

that many possessions to his name to ransack. He's had

a few shirts and a few pairs of pants neatly hanging

there. He wanted his money and he took it.

Time to cut the phone cord, time to walk on down

and calmly say, hey, nobody answered the door. He

called me, you know, he was in fear for his life. I

came down from Connecticut and how do you check on

people here anyway? And he leaves. And he's caught.

You go back and look at the pants again. Notice

where here on the right leg -- excuse me, the blood

pattern pretty much stops at the knee not too much in

the front at the left, which suggests somebody down

over a person on the ground who's bleeding with their

knee foot forward.

After all that, as I said before, the first thing

he does, he's gotta go -- he's going to go home, he's

going to pack his bag and he's going to go right to the

people that supposedly care about and who he supposedly

cares about. He says he's killed somebody to Janet.

Who did you kill? I killed Kenny. Are you sure he's

dead? You know, I made sure the bastard was dead, I

KANABAY & KANABAY - OFFTCTi\T, r.OTTR'l' RRPnPTJ:!PQ 1 1 . _ ..

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App 074

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689

cut his throat, gesturing like that to her. I made

sure he was dead. Remember that. If you remember

anything this man said when you're deliberating,

remember his own words, I made sure he was dead. I

made sure the bastard was dead. And he said, you know,

I wished he was still alive because I enjoyed it so

much I'd do it again.

And he goes on and, sorry, Aunt Adele, I killed

your fiancee. Sorry, killed Kenny, telling her he

enjoyed it. This woman that he supposedly cares so

much about, then he's throwing his bloody shoes around

the living room, flaunting this to them. Adele, she's

shocked by it. She's not -- it's not all registering,

she asks him about the phone bill. He gets mad. He

leaves. They talk to him, they try to tell him to turn

himself in, and he threatens all these people. He

says, no jail will hold me if anybody squeals on me,

you know, I'll get you.

In his cross-examination it seems like the Defense

Attorney was trying to suggest that they were making

all this up. Well, Detective Mariani told you that

after the defendant was arrested they learned that

these people existed and they had information and he

went out and got the information from them. They had

no reason to know that Kenny's throat was slit. They

K.l\Ni\R~Y Ii, J(;\l\fARlV - nPPTl"TllT. rnnorr, D'C'nnom,::,i:,,,.

App 075

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690

had no reason to know that he went to the John Knox

Apartment and told the lady at the front desk that he

was his grandson. They had no reason to know that.

They had no ability to make those facts up, and you

know those facts are true, that his throat was slit and

that he came into the John Knox Apartment under the

ruse of being his grandson.

So, of course he said these things to these

people. Of course they saw the blood on him because

the blood was on him to be seen. It's not easy or

pleasant for them to come in here and testify against

their own flesh and blood. It wasn't anything,

obviously, you can tell from that they enjoyed having

to come in and do. But they know that there's a wrong

that has to be righted here.

From all these facts, the defendant is guilty of

First Degree Murder by premeditation or through the

Felony Murder theory of robbery. Either one or both.

Your verdict form will only be for First Degree Murder.

If you are all convinced that it is completely

premeditated, unanimously, that's fine. If you're all

convinced that it's unanimously Felony Murder, that is

fine. If some of you think it is Felony Murder or if

some of you think that it's premeditated, that is fine.

Either way it's an alternative way of proving First

KANABAY & KANABAY - OFFT<'TII.T. rrnm.,.. i;,i:;,onDrr,i:;,oc 1 (~ ·l App 076

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691

Degree Murder.

And, of course, the Defense Attorney is going to

try to attack both the premeditation and the felony

murder. It's interesting that he only chose to attack

the robbery on the first part and wait to attack the

premeditation in the second part of his closing where I

have no opportunity to rebut what he has to say.

But the premeditation that exists in this case is

an element, one of the elements for First Degree

Murder. I have to prove that the victim is dead, that

the death was caused by the criminal act or agency of

the defendant, and that the killing was premeditated.

We know he's dead. The medical examiner told us

he's dead. We use our very own eyes from the

photographs. We know the man's dead. It was caused by

the criminal act or agency of the defendant. The

defendant's own words, I killed Kenny, I made sure he

was dead. I cut his throat. By his own words, by

his the circumstances of him corning before and

after, by having the victim's blood found on his

clothing, by having his shoe prints and his shoes

compared that he was at the scene, by the lack of any

type of physical provocation or anything suggested by

this scene to give him any reason to do this, he's

you can tell that he is on his back for a majority of

1 l ,,_

'.i ·..i ~)

App 077

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this killing, and that it is not one, not two, not

three, but some 40 some odd slashes, stabbings,

beatings. When you consider all these, yes, Jeffrey

Atwater did the killing.

692

Now, premeditation. We talked about in voir dire

it's killing after consciously deciding to do so.

You'll have the instructions to go back with you that

there is no set time for the formation of an intent to

kill. It's just killing after reflection. Thinking

about it, deciding to do it. And all it is is a simple

decision, I want to kill him. I am going to follow

through and I'm going to kill him. And that can come

from moments or it can be from a plan.

The evidence shows that there's ample evidence to

believe that he intended to kill him when he walked

into that room, from him coming up with the ruse entry

of being the grandson, with him being seen for three

days prior to the killing looking for Kenny, with the

victim hiding when he's seen, being afraid of him

saying I'm not going to give him anymore money, see him

stocking him, looking for him. And from his statements

to Mr. Painter, I'm going to get him, I'm going to kill

him, and it's not going to be too long before it

happens, is what he told Painter the week before.

Evidence of the intent to kill before he even

KANA.RAY F, KANA.RAY - OFFTf'TiH, rnmFr lH'P()R'T'RR<'.!

App 078

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walked in there. But even if you discount that and

look at the facts of the killing itself,

693

premeditation -- you can -- some of the factors that

juries in the past have been allowed to look at, the

nature of a weapon used, the presence or absence of

adequate provocation, previous difficulty between the

parties, the manner in which the homicide is committed,

the nature and the manner of the wounds, and accused

actions before and after a homicide.

Look at the nature of the wounds and the number of

them. Over and over and over. Even if he didn't

intend to kill him when he walked in there, when during

the course of this one stab, two stabs and he keeps on

going, the number of wounds inflicted on this man shows

nothing other than a complete and utter intent to kill,

an intent to make sure that he never walks away from

the floor where he was found.

Consider the relationship that he had with Kenny

beforehand. He didn't like him. It's obvious from the

statements we talked about from Painter. Adele told

you about the previous difficulties where he had --

where he kicked Kenny out. Didn't like him. That was

his actions before and after.

We already talked about before and how he got in.

We heard how he got out, the phone cord is cut and he

KANARAY ,:, KANAR~Y - ()F'F'Tf"TAT, rmrn'T' IH'-PnD'T'F'DC1 1 1 • I

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App 079

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694

comes up with another story, and he leaves. In his own

words, when I said remember when he said I made sure

the bastard was dead, always remember that, because

what better evidence of his intent but that his own

statement that he made sure that he was dead by cutting

his throat. That is absolute and total evidence of his

intent in this case. I made sure the bastard was dead.

His intent to kill is obvious and unmistakable from

that.

Maybe -- and think about -- if he starts saying

well, this took place, you know, in a matter of

minutes, two minutes, five minutes, ten minutes, if you

think that that doesn't seem long enough to form an

intent to kill? Just go back, somebody -- let's do it

right now.

That's just a minute. How many thoughts were you

were able to go through your mind during that period of

time? How many decisions do you think could be made

during that period of time? How much reflection can

you do? Quite a lot. And that's not to say that this

crime took a minute. The evidence indicates that it

would have taken, you know, a number of minutes. But

premeditation can arise in a matter of moments. Long

enough to allow reflection. Don't even need a minute

for that. And he had 25 minutes up there to make a lot

KANABAY & KANABAY - OFFICIAL COURT RF.POR~RR~ 1 1 ' ..

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App 080

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695

of decisions, to reflect on a lot of things. So there

is ample, overwhelming evidence of premeditation in

this case.

But even if you didn't, First Degree Murder is

proven through the Felony Murder because of the

robbery. I've already went, talked quite a bit about

the robbery, the taking, we know he had the money, the

AT -- because the witnesses saw him with money. The

ATM receipts show that he had money, there's money

scattered out on the floor, his pockets are out. The

defendant had $91, $4.38 worth of change.

He didn't even have -- that's not necessarily all

taken from the victim either. I don't have to prove

any particular value. I don't have -- what I have to

prove for robbery is that Jeffrey Atwater took money or

personal property from the person or the custody of

Kenny Smith. Force, violence or assault of putting the

victim in fear was used in the course of the taking,

the property taken was of some value, and he had the

intent to permanently take it. He could have just had

any money, one penny to $91, $20, I don't care. The

taking has been proven here by the circumstances.

When you consider all that, the ATM's and the

course of taking means that the act occurred prior to

or contemporaneous with or subsequent to the taking of

KANABAY & KANABAY - OFFICIAT, r.OlJR'l' RF.POR'l'F.IHl 1 ·1 '.

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App 081

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696

the property, and the act of the taking of the property

did constitute continuous series of acts or events.

So he beats him, he stabs him, he kills him as

he's laying there in his blood, he takes his money.

That's all part of the course of events. That is the

taking by force or violence. So there is absolutely a

robbery here, and that he was killed in the course of

the robbery and was a consequence of it and he is

absolutely guilty of Felony Murder with the robbery

theory, or through premeditation.

And he is also guilty, in addition, to a separate

charge of robbery with a deadly weapon, a knife, which

is obviously a deadly weapon. We didn't recover the

knife. I don't think the Defense Attorney could look

at it and tell you that the evidence doesn't establish

that a knife was used here. The medical examiner has

done these type of cases, he's seen these type of

wounds. You don't even have to have the medical

examiner tell you that some type of a sharp pointed

object did this, by looking at him.

The Defense Attorney never actually, you know, in

his own statement never really said, but what defense,

if any, existed? He just said this is important, this

is important, listen to this, listen to this. Mr.

Smith told you what the evidence would show, and we've

KANABAY & KANABAY - OFFTr.H.T. rrmom n ....... ----- ··

App 082

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697

done that.

In his first closing, any mention of any -- there

was no -- premeditation was conspicuously absent, but

he did spend a lot of time trying to get rid of the

Felony Murder and the robbery, so I suggest that in

light of all this evidence, to suggest that Jeffrey

Atwater wouldn't be there, would be ludicrous.

I suggest that he is going to probably tell you

don't anticipate that this was not a First Degree

Murder, but it is a Second Degree Murder, and there are

lesser included offenses which include Second Degree

Murder.

A lesser included offense or -- let's put it this

way, when somebody commits a very serious act like a

murder, chances are other crimes are being violated,

other crimes can be proven from those certain facts,

but he's not charged with these other crimes because

there's more involved, there's more seriousness

involved.

By that I mean, f?r instance, touching or striking

Kenny Smith against his will would be a simple battery.

Just walking up without any provocation and hitting

somebody in the nose. The defendant wasn't charged

with that because he killed the man.

Another -- a lesser included that you'll have on

KANABAY & KANABAY - OFFTrT.lH, rrnTR'T' ~F.Pn~'T'F.O~ 1 . - . •;t ..;_,.

App 083

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698

the verdict form is manslaughter. That is a killing

through culpable negligence, a act that, the exact

language, is a violation of that duty without any

conscious intent to harm. Culpable negligence is than

a more failure to use ordinary care toward others. In

order for negligence to be culpable, it must be gross

and flagrant. Culpable negligence is a course of

conduct showing reckless disregard for human life, or

of the safety of persons exposed to its dangerous

effect, or such entire want of care as to raise a

presumption of a conscious indifference to

consequences. It shows a grossly negligent type of

action.

This is -- this here is deliberate, intentional.

There's no accident there, there's no mistake, there's

more meant than a manslaughter would show.

The Defense Attorney will probably say this is

Second Degree Murder. Second Degree Murder, prove that

the victim is dead. You have to prove that the death

was caused by the criminal act or agency of another,

and it said a premeditation that the unlawful killing

was by an act imminently dangerous to another and

evincing a depraved mind regardless of human life.

An imminently dangerous act to another evincing a

depraved mind regardless of human life, if it is an act

1.1.' :• ;.t v ...

KANABAY & KANABAY ~ OFFTr.T~T. rnTTR'T' RFPffP'f'RJ;><!

App 084

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699

or series of acts that a person of ordinary judgment

would know is reasonably certain to kill or do serious

bodily harm to another, is done from I will, hatred,

spite or evil intent and is such a nature that the act

itself indicates a indifference to human life. Well,

you could say that all that applies here, but there's

more, and that's why he's not charged with First Degree

Murder -- I mean with Second Degree Murder, he is

charged with First Degree Murder, because he had the

intent to kill, because the killing occurred during the

course of and as a consequence of robbery.

There's more involved, so he is charged, indicted

for more. In suggesting that this is a Second Degree

Murder as opposed to a First Degree Murder, it is an

attempt to get -- kind of a cop-out. It's real easy to

go with something they give you. Maybe it's real easy

to come back with a verdict. They say okay. Yeah,

maybe he did that, but the evidence here shows far more

than that.

Second Degree Murder, classic kind of example is,

for instance, some Ku Klux Klan racist type people

going to a black bar.

MR. SCHWARTZBERG: Your Honor, I'm going to object

to this characterization of the evidence.

THE COURT: I'll sustain the objection. Just

KANABAY & KANARAY - OF'F'TrTJu. rnr1D'T' DJ.'onorr,r,;,o<'."

App 085

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stick to the facts of this case, please.

MR. RIPPLINGER: Judge, can I approach the bench

on that?

THE COURT: No, sir. Let's continue, please.

700

MR. RIPPLINGER: A Second Degree Murder is

committing a crime -- there's some type of violence,

some type of life threatening circumstance directed

towards somebody and somebody dies and you don't really

care, you don't show any concern whether somebody dies

or not, just like taking a gun and shooting into a

house with people in it and somebody dies because you

don't like people in that area.

How much time do I have, your Honor?

THE COURT: Another eight minutes.

MR. RIPPLINGER: Thank you. A reasonable doubt

isn't a possible doubt, a speculative, imaginary or a

forced doubt. With the evidence that has been given to

you, to believe that this is not a First Degree Murder

or to believe that the defendant did not commit this

murder to somebody else, you would be forcing a doubt.

You would be speculating to facts and circumstances

which aren't in the evidence in this case. You would

be playing a lot of maybe, is it possible that

something like that could occur, is it possible that

there really maybe was a man out there with corduroy,

KANABAY & Ki\NARAV - OF'F'T('Tll.T. ('()JJD'l' Dl:'DnDITll:'Oc.-

App 086

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701

tan corduroy pants that looked exactly like the

defendant? I guess that's possible, but that's why the

jury instruction says reasonable doubt isn't a possible

doubt.

See, if you're -- if you've heard all the facts

and the evidence and you have an abiding conviction of

guilt that you're firmly convinced that he did it, that

he had an intent to kill, you're firmly convinced that

this killing was done in the course of a robbery, you

have no reasonable doubt, and if he starts going maybe,

or if you take a -- some evidence and you just -- or

some testimony and think about without considering all

the other facts in the case, then you are starting to

speculate, then you are starting to force a doubt.

I have had to prove the elements of rob -- of

First Degree Murder and robbery beyond a reasonable

doubt. That means there has to be some testimony or

evidence or circumstance that would support you

believing that those elements were proven.

I don't have to prove every single fact of the

case. We're talking about how just by human nature,

for instance, eyewitnesses aren't going to remember

everything with exact mirror-like precision, you know,

like the gray corduroy pants or not being exactly

precise on what time somebody came or left the store.

14J3 KANABAY & KANABAY - OFFICIAL COURT REPORTERS

App 087

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702

Those are normal conflicts that do not rise to any type

of a reasonable doubt.

You see, no matter how much evidence I have or how

many -- we got his blood, we got his footprints, we got

witnesses seeing him coming and going, we have people

hearing him admit to the killing. No matter how much

evidence I have, the defendant has an absolute and

total right to have me prove this case to a jury. He

can say okay, Mr. Prosecutor, you prove the case, you

show a jury that I did it. And that's all this trial

has been, an exercise of his right to make me prove the

case, and I've done that.

Is there a reasonable doubt about his identity of

being there? No. Self-defense? Is there any evidence

that there's any -- in his own home, he's there flat on

his back, there's no weapons, there is no evidence of

any type of attack on him, sitting -- he's just sitting

there drinking a beer and a man comes up in his own

house. Is he any kind of a threat to Atwater? No.

Is it a justifiable homicide where the killing of

a human being is justifiable and lawful if necessarily

done while resisting an attempt to murder or commit a

felony upon the defendant or commit a felony in any

dwelling house in which the defendant was at the time?

That don't apply.

KANABAY & KANABAY - OFFH~TI\T. rnrrR'T' RFPnDrrRDci 1 , ·~· .•

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App 088

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703

Excusable homicide? It's an accident. Is that an

accident?

Intoxication. We talked a lot about his state.

The Defense hasn't even asked that for a jury

instruction. Everybody told you that even if, you

know, he was drinking, he was aware of what he was

doing, what he was saying, and there's no excuse,

doesn't absolve him from any responsibility that he

might have had a few drinks.

And then we get down to, well, maybe it's a Second

Degree Murder, but it does not apply. It's a ploy to

try to get you to convict him of something of less than

what he is responsible for. And then doing that, we've

had kind of a shotgun approach, attacked Adele, say

some bad things about Kenny Smith, say that -- you know

bring out the problems that maybe he and Adele had had

in the past, put him on trial, put Adele on trial, put

the police on trial, anything but him, and he's on

trial.

So when Mr. Smith told you at the beginning of the

trial in his opening statement that we would let the

evidence do the talking, we have, and it has been

shouting and screaming of the guilt of this man for

killing Kenny Smith. We have proven that beyond any

doubt that he is guilty of First Degree Murder and

KANABAY & KANA.BAY - OFFTC'.H.T, rrnnFr RF.P()R'T'FlH!

App 089

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704

robbery, guilty of leaving Kenny Smith sliced up like a

piece of meet laying in his own blood, his pockets

hanging out, all of his money taken from him, is

absolutely 100 percent guilty, and we have proven that.

That's the man that did it, who's proud of it, he

enjoyed it. This is the face of a man that did that

after he was caught. That's how he felt about it that

night as he stood there defiantly, the victim's blood

on his clothes after he had a beer.

Remember that. Remember his own words, I made

sure the bastard was dead, I cut his throat, wished he

could do it again because he enjoyed it. And as the

Defense Attorney -- as I said at the beginning, the

Defense Attorney says you send a message to me, well,

you send that message to him that he's responsible for

this killing of First Degree Murder. Thank you.

THE COURT: Thank you, sir. Mr. Bailiff, if you'd

like to remove those exhibits, and Mr. Schwartzberg, if

you'd like to give your final closing you may, sir.

MR. SCHWARTZBERG: Thank you, Judge.

You know something? The thing that has bothered

everybody throughout the course of this trial is that

the State of Florida has the burden to prove to you

beyond a reasonable doubt each and every element of

each and every crime with which Mr. Atwater has been

KANABAY & KANABAY - OFFICIAL COUR~ RRPnR~RRR 1 l -., ... .. ' \ t.v ,,

App 090

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705

charged. They must do it through the witness stand and

through the evidence, not through them.

They have been testifying to you for three days.

They have been asking you to speculate for three days,

and now he comes up here and he says, well, why didn't

I talk to you about murder in my first argument?

Because I wasn't about to speculate as to what further

testimony the State of Florida was going to bring

before you.

Ladies and gentlemen, this is a case about murder.

Pure and simple. Nobody is going to stand before you

and say that Kenny Smith was not murdered. The

evidence before you is overwhelming, but the question

is degree. Is this the act of a depraved mind with no

regard for human life?

Ladies and gentlemen, the law gives you

alternatives. You must decide from the facts the

degree of murder. Mr. Ripplinger made light of the

fact of Murder in the second Degree, but by definition,

that's what this crime is all about. It is an act of a

depraved mind, and it was done out of ill will, hatred,

spite or an evil intent.

I told you in opening statements that this was a

case about relationships. The State did its best to

try to hide those relationships from you until the end

J()\tJJ\Rl\V Ii', T.."l\l\TlaRlaV _ l"\1.'1:'Tl"T'I\T l"r>TTnm nr.,nnnm...,nn

App 091

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706

when Adele and Janet and Michael Painter had to take

the stand, and then finally the State allowed the full

story to come before you.

The relationship between Kenny and Adele, ups and

downs, rocky. Yeah. Physical and verbal abuse is

rocky, and Adele Coderre suffered it at the hands of

Kenny Smith. But who witnessed it? Jeffrey Atwater.

His mom was being abused by the man that she loved, and

it festered in Jeffrey Atwater's mind, and it didn't

happen once. He heard about it at least three times,

and he finally kicked Kenny Smith out of the apartment,

but the abuse didn't stop, and Jeffrey Atwater

festered.

Is this the act of a depraved mind? I submit to

you that the only answer is yes. Nine stab wounds to

the back, nine stab wounds to the chest. One of them

four and a half inches deep. It went through the front

of the heart and came out the back of the heart. Ill

will, hatred, spite, evil intent. Second Degree

Murder.

The legislature has deemed there to be a

difference. You must render a verdict that is true and

just, that fits not only the facts, but the law. And

the law says that this crime is Murder in the Second

Degree. Your verdict must reflect the law and the

KANABAY & KANABAY - OFFTr.T~T. rmTRT RFPflD'T'J.'DQ

App 092

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707

evidence.

There have been a lot of things going on during

the course of this trial, back and forth between the

State of Florida and the Defense, questions, comments,

attacks, but it all boils down to that, pure and

simple. We're not hiding anything from you. We're

asking you to do your duty, to render the only verdict

that is fair and just, and that is as to Count One of

the indictment, that Jeffrey Atwater is guilty of

Murder in the Second Degree, and as to Count Two of the

indictment, that Jeffrey Atwater is not guilty as to

robbery.

You cannot find him guilty of Murder in the First

Degree, Felony Murder, because there is no evidence

before you of a robbery, and the law defines for you

Murder in the Second Degree, and there it is. That's

what this is all about, not shooting into some house

and accidentally killing some people, because Mr.

Ripplinger read to you the jury instruction for

manslaughter, culpable negligence.

This is an act of a depraved mind regardless of

human life, done out of ill will, spite, hatred or an

evil intent. It is the only verdict that you can

return and do what you swore to do, do justice.

Thank you, your Honor.


App 093

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708

THE COURT: Thank you, Mr. Schwartzberg.

All right. Ladies and gentlemen of the jury, you

have given your attention, I've noticed, to both

counsel as they have presented their final arguments to

you. As I told you, those arguments are not evidence.

The arguments are given, and you heard, were given in a

persuasive fashion tending to show you their view as to

what the attorneys believe the evidence has shown.

As I did indicate to you, it is my function to

instruct you upon the law that does apply to the facts

as you have now heard, and immediately upon our return

from lunch, I will give you those instructions upon the

law, the instructions on the law that you are to follow

as you go, then, to the jury room to deliberate your

verdict after I have given those instructions to you.

I'm going to go ahead and call a recess, then, at

this point, for your luncheon purposes. We are very

close to the end of this trial, there's nothing to be

done but for you to hear from the Court the actual

instructions upon the law that you are to apply. The

Court would, even though we are at this near end to the

trial proceedings, ask that you not discuss the case

amongst yourselves yet, understanding you cannot do

that until you have heard the instructions on the law

by the Court, and until you do go to the jury room to

KANABAY & KANABAY - OFFICIAL COURT REPORTERS 1. 1 ', -·

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App 094

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709

deliberate your verdict.

Let me ask that even though you have heard all the

evidence and you have now heard the arguments by the

attorneys, you are not to have formed any definite,

fixed opinions as to the merits of the case because you

have, in fact, not yet had the instructions upon the

law that the Court must give to you.

The Court would again ask that while you are on

your luncheon recess that you avoid reading any

newspaper in view of the fact there may be some article

about this case. The Court would ask that if you see

any of the parties to the action in the courthouse that

you not talk with those persons. Understand they can't

talk with you.

The Court would ask that you be back in the jury

room on this floor at 1:15. It is now 12:05 by my

clock, so if you would be back in your jury room at

1:15 we will begin at that time, then, with the

instructions of the law by the Court, which I would

estimate to take about 30 minutes or so. And

immediately thereafter, you will then be allowed to go

to the jury room to deliberate your verdict.

Are there any other instructions you wish given to

the jury panel before their lunch break for the recess?

MR. SMITH: No, your Honor.

KANABAY & KANABAY - OPFTrT~• ---

App 095

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MR. SCHWARTZBERG: No, your Honor.

THE COURT: All right. Thank you.

710

Mr. Bailiff, if you would escort the jury from the

courtroom, please.

THE BAILIFF: The jury's out of hearing of the

Court, your Honor.

(Jury Not Present)

THE COURT: All right. Thank you. Counsel, I

understood, then, that there had been an agreement,

that the Court has been given typewritten jury

instructions is acceptable to all parties, and is

MR. SMITH: That is not, why. No, Judge. I just

found number two on the robbery was incorrect. Number

two, according to the new jury instruction has to start

by saying taking or forced violence, other than what it

says.

MR. SCHWARTZBERG: They keep changing the law on

us, Judge.

MR. SMITH: Force, violence, assault or putting in

fear was used in the course of the taking instead of

what it says for number two now.

THE COURT: All right. Well, you concur, Mr.

Schwartzberg, that there is a newer instruction that

should be replacing the robbery instruction we have in

this packet?

KANABAY & KANABAY - OFFICTi\T. ("("'Inn= --

App 096

Appendix G: Transcript from postconviction evidentiary hearing proceedings on September 11, 1998.

App 097

ON APPEAL TO THE SUPREME COURT OF FLORIDA

JEFFREY LEE ATWATER

APPELLANT,

-vs-

STATE OF FLORIDA,

APPELLEE.

CIRCUIT CRIMINAL NUMBER CRC 89-13299 CFANO

APPEAL NUMBER

(.

VOLUME THREE

TRANSCRIPT OF RECORD ON APPEAL

94,865

App 098

Page one

DATE OF FILING

April 14, 1999

September 22, 1998

IND IX

VOLUME·THREE

KIND OF INSTRUMENT

TRANSCRIPT OF PROCEEDINGS

HUFF HEARING May 15, 1998

TRANSCRIPT OF PROCEEDINGS

MOTION HEARING SEPTEMBER 11, 1998

396 - 423

424 - 538

App 099

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA

CASE NO. CRC 89-13299 CFANO-B

----------------------------------------x STATE OF FLORIDA,

Plaintiff,

vs.

JEFFREY LEE ATWATER, ?(,7J'07

-~:~ l T ·~//:: :)·-·.~ r·:: ..

Defendant. i 2 ... ,~ -------------~--------------------------x

BEFORE:

.(

PLACE:

THE HONORABLE RAYMOND 0. GROSS Circuit Court Judge

COURTROOM 6 ·-... __ _

Pinellas Criminal Justice Center 14250 - 49th Street North Clearwater, Florida 33760

DATE: September 11, 1998

REPORTED BY: DAWN M. DANTSCHISCH, RPR, RMR Court Reporter Sixth Judicial Circuit Notary Public, State of Florida

------------------------------------------MOTION HEARING

------------------------------------------Pages 1 - 115

ROBERT A. DEMPSTER & ASSOCIATES COURT REPORTERS

P.O. BOX 35 CLEARWATER, FLORIDA 33757-0035

(727) 443-0992

ORIGINAL 424

App 100

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A P P E A R A N C E S

RICHARD RIPPLINGER, ESQUIRE MARIE KING, ESQUIRE 14250 - 49th Street North Clearwater, Florida 33760

CANDACE M. SABELLA, ESQUIRE Assistant Attorney General 2002 North Lois Avenue 7th Floor Tampa, Florida 33607

Attorneys for State of Florida

ABIGAIL DRESSEL, ESQUIRE CHRISTOPHER DEBOCK, ESQUIRE 405 Nofth Rea Street Tampa, Florida 33609

Attorneys for Defendant

I N D E X

JOHN THOR WHITE

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Direct Examination by Ms. Dressel ....... Page 7 Cross-Examination by Mr. Ripplinger ..... Page 27 Redirect Examination by Ms. Dressel ..... Page 41 Recross-Examination by Mr. Ripplinger ... Page 47

MICHAEL SCHWARTZBERG Direct Examination by Ms. Dressel ....... Page so Cross-Examination by Mr. Ripplinger ..... Page 69 Redirect Examination by Ms. Dressel ..... Page 80

JEFFREY ATWATER Direct Examination by Ms. Dressel ....... Page 84 Cross-Examination by Mr. Rippiinger ..... Page 92

425 ROBERT A. DEMPSTER & ASSOCIATES

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P R O C E E D I N G S

THE COURT: Let me get a sense of the

Atwater matter. This is a Defendant's

motion. Give me an idea of what we're going

to have by way of testimony, how we're going

to proceed on that. And who will be

handling this for Mr. Atwater?

MS. DRESSEL: Yes, Your Honor.

is Abigail Dressel, I'm here with

Mr. Deback.

THE COURT: I'm sorry?

MS. DRESSEL: Abby Dressel.

My name

THE COURT: And will you be primarily

handling this, ma'am?

MS. DRESSEL: Yes.

· THE COURT: Okay. How many witnesses

do you anticipate calling?

MS. DRESSEL: I'm not sure if we'll be

calling them or the State will be calling

them, but Mr. Thor White, Mr. Schwartzberg

and then our client, Mr. Atwater.

THE COURT: Okay. Who's going to be

handling it for the State?

MS. KING: Your Honor, Mr. Ripplinger,

as the litigating attorney, is supposed to

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be here to handle that part of it. And I

haven't seen him yet, but I presume he'll be

here momentarily.

THE COURT: Why don 1 t you see if you

can track him down. We're close to being

able to go forward. Mr. Atwater is in the

building, correct?

THE BAILIFF: Yes, Your Honor, he's

downstairs.

THE COURT: Let's get him up on this

f+oor. And in the interim, I would suggest

that you all chat. I assume that it's your

motion, certainly Mr. Atwater can testify

and that could be it. And the State would

have a rebuttal, I guess, with Mr. White and

Mr. Schwartzberg.

But maybe you all could talk about

procedurally what you think is the best way

to go while we have this short break while

we're trying to finish the other things. It

might be helpful.

Why don't you all take a couple of

minutes and step into the anteroom and see

if you can agree or not, okay?

MS. KING: Yes, Your Honor.


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THE COURT: All right.

* * * * * * * * * * * * * * * * THE COURT: All right. We're here on

State versus Jeffrey Atwater, 89-13299.

We're here for a limited hearing based upon

a Defendant's motion filed pursuant to

Florida Rule of Criminal Procedure 3.850.

The original pleading filed by the Defendant

raised twenty-four claims for relief.

We previously entered an order denying

t~e claims on all except for those raised in

numbered Paragraph 6 and 17, which, frankly,

are interrelated and could easily have been

found in one paragraph. Essentially, we're

dealing with claims of ineffective

assistance in the guilt phase of the trial

because of the Defendant's attorney

conceding his guilt to the lesser crime and

some charges that arise out of that.

Have you all discussed procedurally how

you wish to go forward as far as the

presentation of evidence or testimony? Do

you have any agreement on that or are we

just back to square one?

MS. DRESSEL: Your Honor, the Defendant


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will call all of the witnesses involved in

this matter.

THE COURT: Okay. From the witnesses

you've identified, I see them all present in

the courtroom at this time. Do you want

them to all remain in the courtroom? Do you

want them outside the courtroom?

MS. DRESSEL: I'd like to invoke the

rule as far as Mr. Thor (sic) and

Mr. Schwartzberg.

THE COURT: If you all would step

outside.

be?

Who's your first witness going to

MS. DRESSEL: I'm sorry, Your Honor?

THE COURT: Who is your first witness?

MS. DRESSEL: Mr. White.

THE COURT: Well, you don't have to

step outside, Mr. White. You can remain

here and if you'd come forward and receive

the oath.

THEREUPON,

JOHN THOR WHITE

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WAS CALLED AS A WITNESS AND AFTER BEING DULY SWORN ON

OATH WAS EXAMINED AND TESTIFIED AS FOLLOWS:

THE BAILIFF: Please have a seat.

ROBERT A. DEMPSTER & ASSOCIATES 429 App 105

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MR. RIPPLINGER: Judge, do you mind if

I sit in the jury box? I have trouble

sometimes hearing with that air blowing.

THE COURT: No, just make yourself

comfortable.

MR. DEBOCK: Also in that regard,

Mr. Atwater has somewhat of a hearing

impairment. If everyone could speak up

because he has difficulty hearing, we'd

appreciate it.

THE COURT: We, fortunately, have the

microphones. If you would talk right into

that microphone and use that radio voice you

have, I don't think we'll have any problem.

All right. You may inquire.

MS. DRESSEL: Thank you, Your Honor.

DIRECT EXAMINATION

BY MS. DRESSEL:

Q Good afternoon, Mr. White. Could you

please state your name for the record?

A

Q

A

Attorney John White.

And what kind of law do you practice?

Somewhat eclectic, but it's dominated

by criminal defense. And I do some civil

litigation and I do a high volume of appellate

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work; again, mostly the appeals are mostly

criminal.

Q In 1990, did you have an opportunity to

try a case of the State versus Mr. Jeffrey

Atwater?

case?

A

Q

A

I did co-counsel in his defense.

Were you the attorney of record in the

That is correct.

Q Do you recall in 1990 discussions with

the ju4ge at that time, stating something to the

effect that the evidence in this case is

very -- is fairly overwhelming, we expect it to

go into the penalty phase?

A I don't recall making that statement.

Q If I provide you with a copy of a

transcript from that, would that refresh your

memory?

A Might.

MS. DRESSEL: May I approach?

THE COURT: Sure.

THE WITNESS: I have to spend a second

with this to get it in context.

MS. DRESSEL: Okay.

MR. RIPPLINGER: Excuse me, if counsel


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could tell me exactly what hearing, what

date that this statement would have been

made on. I have no context here.

MS. DRESSEL: Your Honor, let me

clarify what I'm reading from. This is the

supplemental record from Jeffrey Atwater

versus State of Florida, Appeal

No. 76380027, Page 8, also No. 1896,

paragraph -- or lines one through ten.

THE COURT: That identifies it

s~mewhat, but what was the context of this

hearing? When and where did this take

place?

MR. DEBOCK: It was a motion for

continuance. That was a colloquy of a

transcription of their motion for

continuance by defense.

MS. DRESSEL: Transcript of

proceedings, Defendant's motion to dismiss

of April 26th, 1990.


BY MS. DRESSEL:

Q All right. Mr. White, the statement,

now that you've seen it, do you recall making

that statement at that time?


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A I don't recall -- do not recall making

that statement, but I don't dispute having made

it.

Q Okay. Why would such a statement be

made so early on in a case? What would -- if you

can recall maybe not that the statement was made,

but maybe the reasons behind making such a

statement, and could explain it?

A Well, you know, I guess I'm being a

little speculative because I haven't read the

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entire 4 hearing transcript. I suspect that I was --

moving to continue so that I could more fully

develop a defense to be presented during the

penalty phase, and I was emphasizing my need by

telling the judge that I expected it to go into

penalty phase because, in my judgment, the

evidence of guilt was overwhelming.

And I apologize for speculating, but

just being shown, you know, one page, that's the

best I can do. But I believe that's probably the

deal. I mean, if you want to let me read the

whole thing, I could tell you with certainty.

Q Let me just read a portion of it and

then you can tell me if this particular language

that you did use at that time helped you prepare


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for a penalty phase.

Amount and quality and quantity of the

evidence is fairly overwhelming that this, in

fact, was a first-degree murder case.

expecting to go into a penalty phase.

We are

That was language that would have

helped prepare you for a penalty phase; is that

your position?

A That sounds like me. It's the kind of

words I use. It sounds to me like I was

emphasizing my belief that the case would go into -

penalty phase. And I believe I was probably

emphasizing that because I was asking for more

time to develop my penalty phase position.

Q And how -- how many times did you

communicate with the client before this time,

this particular date?

A

Q

What's that date, please?

The date is April 26th, 1990.

a Defendant's motion to continue.

This was>

A Okay. May I have a moment, Your Honor?

THE COURT: Certainly.

THE WITNESS: Oh, by the way, what I'm

doing is looking over my fee petition, which

probably would tell me how many times I met

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with the Defendant.

moment.

So just give me a

According to my time exhibit on my fee

petition, I met with the Defendant for the

purpose of attorney/client conferences three

times prior to April 26th, 1990; associate

counsel met with him at least once that I

see. And, of course, there may have been

brief conversations if he was attending

hearings or anything like that, but it looks

1ike three significant attorney/client

interviews involving myself and Mr. Atwater.

BY MS. DRESSEL:

Q When you say significant, what does

that mean?

A One on one; for the purpose of talking

one on one.

Q Do you have any idea how long those

conversations were? An hour, less than an hour,

three hours?

A My initial interview was two hours,

according to this document. Schwartzberg had a

two-and-a-half hour interview --

Q Would you agree with me that your

statement


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A -- and --

THE COURT:

the answer.

Wait. He hadn't finished

THE WITNESS: Well, I'm having to read

this. Schwartzberg had another one of an

hour. I had a very brief interview with the

client that I didn't even ask for

compensation on. Apparently, I just sort of

introduced myself.

BY MS. DRESSEL:

That was all before

And some very brief telephone

conferences with him.

Q And those times that you just gave me

were all before April 26th?

A Yes, ma'am, they were.

Q Okay. Would you agree with me that

that statement on Page 1896 of this transcript in

front of me -- which I apologize, I don't have a

copy for you -- uses pretty strong language

suggesting that guilt was conceded even before

trial?

Let me just restate that. That this is

pretty strong language? And let me cite it

again, the amount and quality and quantity of


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evidence is fairly overwhelming; in fact, we are

expecting to go into a penalty phase.

A

language.

Q

I would agree that that's strong

Would you agree with me that that seems

to indicate that in your mind, the issue of guilt

was already resolved before trial?

A I was anticipating the issue of guilt

to be resolved adversely to my client at trial.

I mean, I'm enough of a professional to know that

it had~'t been resolved.

anything about this case.

The jury didn't know

Q Okay. Thank you. How many capital

cases had you had prior to Mr. Atwater's case in

1990?

A I was day-dreaming on that on the way

to court, and I could name five in my mind, and

it seemed like I came up with a sixth one.

was either five or six, right around there.

Q

A

Five or six capital cases?

Yes, death penalty cases, right.

other homicides that were non-capital.

Q How long had the co-counsel,

So it

I had

Mr. Schwartzberg, been with you before taking on

Mr. Atwater's case?


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A With me?

Q Working with you, practicing law.

A That's I believe -- that's a good

question. I think maybe a year.

Q And how much experience did he have

handling capital cases?

A My recollection is that this was his

second one.

Q And why did you give the case to

Mr. Schwartzberg as lead counsel? Why were you

not le~d counsel on that case?

A

Q

A

counsel.

Q

A

Q

primarily

primarily

primarily

A

On this case?

Correct.

I don't think. I said I was not lead

Were you lead counsel on this case?

I think -- gee, I think yes.

The decisions in the case were

yours, the direction of the case Wc;lS

yours, the theory of the case was

yours?

Primarily. I mean, you know, we'd

discuss things, but I was the senior and I was

more experienced and I would expect that, you

know, maybe I could have vetoed some things if


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that was my choice.

0 Okay. Let me ask you: Do you recall

the opening statement in the case?

A

0

A

0

Mine or the State's?

Yours.

I do not.

Okay. I'm looking at my amended motion

to vacate judgment and conviction of.sentences,

Page 17. I'm sorry, not Page 17. I apologize.

It's Page 41, counsel's opening statement from

the am~nded motion to vacate judgment and

sentences.

You don't recall the opening statement

that you made in Mr. Atwater's case; is that your

testimony?

A

0

That is correct. I do not.

If I provided you with a partial

transcript of that from our 3.850 motion, would

that refresh your memory?

A I bet it would.

Q If ~ou don't mind just reading that

excerpt that says opening statement, then I just

have a few questions about that.

A Okay. It starts out -- I mean, this is

the quoted part. It says, This case is about


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relationships. It is important for you to listen

to all of the evidence. And that evidence will

concern various relationships. The relationship

between Jeffrey Atwater and Adele Coderre,

C-0-D-E double R-E; the relationship between

Jeffrey Atwater and his natural mother; the

relationship between Jeffrey Atwater and his

natural father. It will concern the

relationships between Jeffrey Atwater and

Kenny Smith.

Next paragraph starts out, It is

important for you to listen to the evidence

concerning Jeffrey Atwater and those people, but

it is important for you also to listen to the

relationship between Adele Coderre and

Kenny Smith and the way that it affected Jeffrey

Atwater.

It is important for you to listen to

the evidence concerning Janet Coderre and her

relationship with Kenny Smith because this ca~e

is about relationships.

Q Okay. Now, do you recall

Mr. Schwartzberg making that opening statement at

the trial?

A I didn't know if it was him or me. I'm


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sorry. I thought maybe I made that. So I don't

recall, no.

Q But being lead counsel, as you were, do

you recall having input on that opening

statement, on what was going to be said, what was

going to be argued, the theory of your case?

A I don't, you know, have a recollection

of that, but I believe earnestly that surely we

did discuss strategy about opening and every

other aspect of the case.

Qi And what would that trial strategy have

been in that opening statement? What theory

would that have been presenting to the jury at

that time? What does it mean about

relationships, if you can recall?

A Oh, boy. I don't recall except there

was some really strange things going on where

Mr. Atwater thought that the victim in this case

was mistreating Ms. Coderre, who he I can't

remember Atwater•s relationship to her, but it

was something a little bit special.

I mean, he either thought of her as his

aunt, a de facto aunt, or something. I mean, at

this point, I'm sorry, I didn't prepare for that.

I didn't realize that would be an issue in this


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case.

But, to me, what he did was directly

related to his belief that the victim was abusing

the victim's relationship with this woman. And

this woman, in turn, had sort of a special

relationship with my client.

Q And how did that theory change during

the closing remarks, then, by Mr. Schwartzberg in

the case? Do you recall that your theory had

then changed from this about relationships to

something else?

A I don't recall that there was a change

in the theory.

Q Okay. If I provided you with a copy of

the closing statement, would that refresh your

recollection?

A I don't know. I'd have to see it, to

be honest with you.

MS. DRESSEL: Again, Your Honor, I'm

reading from the amended motion to vacate

judgments of convictions and sentences,

Page 17, Number 2.

BY MS. DRESSEL:

Q During his closing statement -- if

you'll just take a moment and read that.


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MR. RIPPLINGER: Judge, I'm going to

object to this abbreviated portion of the

record which they have. This is their

motion to vacate being used to refresh his

memory.

MS. DRESSEL: That's fine.

MR. RIPPLINGER: They're showing with

some asterisks that some of the argument is

not included in it. So I think what they're

showing is highly selective.

referring to --

If they were

MS. DRESSEL: I have portions from the

actual transcript, if the State objects to

the 3.850. That's fine.

THE COURT: Whatever, as long as it

refreshes Mr. White's recollection. You can

look at whichever you have or whatever he

needs. He may or may not be able to answer

your question with the abbreviated portion

cf it, though. You just do what you think

you need to do.

MS. DRESSEL: That's fine, Your Honor.

I'd actually rather, just to clear it up,

give him a part of the actual record on

appeal. This is trial transcript, Line 14,


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it's Page 706.

number.

I can't read the bottom

BY MS. DRESSEL:

Q

Line 14.

A

Q

A

Mr. White, if you could just start at

Okay. And do what, read out loud?

Yes, please.

Is that what you're asking me to do?

Okay. Line 14 starts out, Is this the act of a

depraved mind? I submit to you that the only

Nine stab wounds to the back,

nine stab wounds to the chest, one of them

four-and-a-half inches deep that went through the

front of the heart and came out the back of the

heart. Ill-will, hatred, spite, evil intent,

second-degree murder.

Q Was that part of the theory of your

case that you started with, the one that we just

discussed in the opening statement; this is about\-

relationships? How did that tie in to the

opening statement? What strategy was that and

was that -- sorry.

A Okay. Well, see, we were faced with a

couple of problems here in terms of first-degree

murder, okay? One problem was the felony murder

ROBERT A. DEMPSTE~ & ASSOCIATES

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theory,

place.

that this was -- that a robbery took

That was a problem. And that would

replace the premeditation element of first-degree

murder.

So we had that to deal with because

they found loose change and the victim's pockets

were pulled out, as I recall. But in any event,

I'm certain that that was a problem for us.

Number two, the element of

premeditation seemed to have a lot of support

based µpon the evidence. And if I remember, the

Defendant, after the fact, told somebody, yeah,

he killed Kenny Smith, and if he had a chance to

do it again, he would do it again.

And there was -- the State was able to

link up some antecedent events that basically

showed a motive. And those antecedent events

were what I sort of highlighted for you, that he

was -- the Defendant was concerned about the

relationship of Kenny Smith with this other

woman, that Kenny was maybe beating her and

things like that.

And so, the State had it going both

ways. They had a decent felony murder theory and

they had a good showing of premeditation. So,


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what we were trying to do was show that, you

know, Atwater came after this man because Atwater

believed, in effect, that he was defending this

woman against further abuse.

She was a crippled woman, if you'll

forgive that terminology, like arthritic or

something like that, and very small. And

Kenny Smith was, you know, kind of a guy that

looked like he was a stevedore on a tugboat in

his youth or something like that.

small man.

He was not a

So, yeah, early on we were setting it

up hoping that, you know, if we could -- or if we

had to, that we would make this pitch that, you

know, Atwater just went crazy over his belief

that this man was abusing his aunt. And,

therefore, it wasn't a premeditated murder, it

wasn't a robbery murder, it was just he went

bonkers, you know.

Q During the closing statement do you

recall if anything was suggested that this was a

crime of self-defense? Was that ever at all

expressed in your closing statement, that this

person did -- I mean, that statement that you

just read the excerpt from, the closing statement


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is pretty clear that, as it states, this is an

act of a depraved person, this is a

four-and-a-half inch -- I mean, that doesn't

sound to me like what you're saying is part of

some defense theory.

MR. RIPPLINGER: I object. This is an

argumentative question of the witness,

Your Honor.

THE COURT: All right. I'm going to

overrule the objection, but let's try and

get to a question.

BY MS. DRESSEL:

Q Did Mr. Atwater ever concede guilt to

you, Mr. White?

A I don't remember, to be honest with

you.

Q Did Mr. Atwater express a d~sire to

testify in the case?

A

Q

Not to me, personally, no.

Do you recall any fear or belief that

Mr. Atwater, if called to -- if he chose to

testify would lie on the stand?

A

I don't

Well, I'll try to answer your question.

you know, I don't recall that, but

that would have been a natural concern, that if


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he was going to take the stand, he would have

presumably been saying he didn't do the murder,

okay?

And I think that would have been so

grossly contrary to the evidence that it might

have impacted adversely on him during the penalty

phase.

Q But with all due respect, wouldn't you

agree with me that it's the Defendant's right to

testify on his own behalf, and if he does not

choosei to concede guilt that that's his right to

explain his theory of the case?

A I agree with you one hundred percent.

Q Do you recall any discussions that you

had with Mr. Atwater about th• decision to

concede guilt during the closing statement?

A I do not.

Q Do you recall having any discussions

with Mr. Atwater about his right to testify on

his own behalf?

A

Q

I do not.

Do you recall at any time explaining to

Mr. Atwater your role in the case?

A

Q

I do not.

Do you recall at any time explaining to


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Mr. Atwater his legal rights at trial?

I do not. A

Q Do you recall making a statement -- or

that Mr. Atwater made a statement to the

detective in the case, as well as Dr. Sidney

Merin, that he had found the body in this case;

that he was not guilty and had found the body in

this case?

A I do not recall that, but it's sort of

ringing a bell now that you're saying it. Please

keep i~ mind that I have not had my files during -

this intervening period, the Defendant has had

them. So I didn't want to come in here tableau

rase, not remembering anything, but

unfortunately, I'm a little bit in that position.

Q . · ·Did you tell Mr. Atwater that this is

our case, we do these capital cases and we're

handling it from here? Isn't that true?

A I don't recall making that statement,

but I don't dispute maki°ng a statement something

like that.

Q Do you recall ever hearing

Mr. Schwartzberg, or even yourself, saying, we've

never had a client on death row?

A I don't recall such a statement. And I


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guarantee I would not have made that misstatement

because I had clients on death row at that point

in time.

MS. DRESSEL: Thank you, Mr. White.

THE WITNESS: Okay.

THE COURT: Mr. Ripplinger, you may

inquire.

CROSS-EXAMINATION

BY MR. RIPPLINGER:

Q Mr. White, would you, for the record,

just give a little bit more about your

experience? They asked you about the capital

cases you had done prior to that trial, how many,

you know, criminal jury trials would you estimate

you had had in your experience before that?

A Before then, I would say maybe as many

as one hundred.

Q How long had you been practicing

criminal law?

A At that time, it would have been

seventeen years.

Q And --

A Excuse me, that's wrong. Thirteen

years. No, wait a minute. It would have been

seventeen. Okay. '73 is when I started.


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Q And during the time when you were

representing Mr. Atwater, did you personally have

any personal problems with him?

A No.

Q You know, did you feel that you were

having any kind of problems communicating with

him?

A Well, you know, nothing enormous. I

think he was kind of -- you know, my best

recollection is he was kind of quiet, little bit

withdrawn, but he was alert and he was a

gentleman.

problems.

I mean, we didn't have any big

Q I mean, it's not one of these

situations where you're yelling at each other,

or

A Oh, no.

Q -- he's refusing to talk to you or

anything like that?

A No, nothing like that.

Q Did you feel you had a two-way line of

communication with him?

A

Q

Yeah.

Did you feel that his relationship with

Mr. Schwartzberg was any different?


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A I didn't perceive anything like that,

no.

Q Would you have referred to him as a

problem client? You've heard that kind of

terminology before?

A I would not have characterized him as

such; and yes, I'm very familiar with that

terminology in the trade.

Q And in going into a trial like that,

would you -- whether you recall or not, would you

have had a discussion with him about his

likelihood of being acquitted at trial?

A Okay, you're asking me do I recall that

discussion or --

Q I mean, would you or do you recall

having a conversation like that?

A I don't recall that, no.

Q With your experience level at the time,

is that the kind of conversation you would have

with somebody before going into a serious trial

like that?

A

Q

Sure.

And there's been some attention drawn

to a comment that you made in a motion to

continue. You looked at that statement there.


I

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don't believe it could be characterized as you

saying, my client is guilty.

I think would it be more fairly you

were making a comment that you perceived the kind

of case the State would be putting on and how it

would play out in the courtroom?

A Well, let me answer this way. The

judge does not participate in the guilt phase of

the trial. So if I was telling the judge I

thought this guy was guilty, you know, I wouldn't

apolo~ize for that. It would not adversely

affect my client's interests.

The judge does not participate in the

guilt phase; pure and simple. So, I was trying

to buy time t~ work up the penalty phase because

I saw it coming.

Q And did you take into consideration

that he had his own family members basically

testifying against him with admissions of

committing the crime?

A Yeah, I took everything into

consideration, all the evidence.

Q And in terms of the strategy that you

chose, did you think that he had any chance

whatsoever in getting an out-and-out acquittal?


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A

Q

I did not believe that, no, sir.

Did you believe that you would have any

credibility putting an alibi defense on when

presented with the State's case?

A No, sir.

Q Did you think that you had any kind of

issues of self-defense that could have been

credible before a jury?

A No.

Q I think you had retained Dr. Merin to

assist you with the case, and did you think that

you had any kind of credibility td put on an

insanity defense in the case?

A

Q

Insanity, no.

So, you know, is that the kind of

thought process you would have been going through

before coming up with the strategy to try to get

a lesser-included offense at trial?

A Yeah. I mean, there's just -- there's

typical things you do in a first-degree murder

case when you your back is against the wall. And

by that, I mean when you have a case where the

Government is intractable; they're not making any

offers.

Then, you know, you've got to sit back


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and you've got to figure out what am I going to

do; what are the most realistic options given

this set of facts that we anticipate coming down

the pike during the course of the trial.

That's what we did here, you know. I

mean, Mr. Atwater was convicted of murdering this

man in an apartment, you know, in a high-rise,

kind of an old-folks place downtown St. Pete.

And when Atwater went into this sort of

condo-looking place, he signed in with the night

watchman. I mean, that's just an example of some

of the problems we had.

And then, you know, afterward, he was

seen with blood all over himself, and apparently

he made statements. And it was not -- it was not

a whodunit case, I guess is what I'm getting at.

So we had to figure out something viable that we

could do, and that was the second-degree murder

pitch. And that's how we got there.

Q And would one of the ends of that

strategy be trying to save his life, to avoid

having a penalty phase by getting a second-degree

murder conviction?

A Absolutely.

Q And, you know, considering the


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testimony of the medical examiner, with the

victim being alive during the infliction of, you

know, the majority of those stab wounds and with

the number of such wounds, did you have, you

know, serious concerns that heinous, atrocious

and cruel could easily be found by a jury in this

case?

A Very concerned, yeah.

Q And did the statements that he made,

that he had enjoyed killing Kenny Smith, wished

he was alive so he could do it again, did you

feel that type of statement would'really cause

problems for you in a penalty phase?

A I'm sure I did.

Q And at any time during the course of

the guilt phase of that trial did Mr. Atwater

ever bring it to your attention that he disagreed

with the defense that you were conducting in the

case?

A No, he did not. Can I just clarify my

response to that? It may be helpful to

understand that during this trial, my best

recollection is that when we divided up

responsibilities, Co-counsel Schwartzberg was

the -- his responsibility was to interact with


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Mr. Atwater and sort of leave me alone so I could

strategize and keep an eye on things, and so on

and so forth.

So all I'm trying to say is during the

course of the trial, my direct conversations to

Mr. Atwater, to my recollection, were minimal.

So that's that.

Q So within the contact that you did

have, he never did express any complaint about

the way the case was going?

A No. I guess I'm trying to say maybe

something went on between him and'Schwartzberg.

Q As far as you and him, it did not

happen?

A Exactly. That's what I'm trying to get

to.

Q Do you have any knowledge that anything

would have happened between him and

Mr. Schwartzberg, for that matter?

A I have no knowledge of that.

Q Specifically in your interaction with

him during the course of the guilt phase in that

case, did Mr. Atwater personally tell you that he

wished to testify?

A I don.'t believe -- I have no


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recollection of him saying that.

Q Do you recall the conversation with him

about whether he wanted to testify or not?

A I honestly don't recall that.

Q And in your years of practice, have you

had opportunities to have clients testifi in

trials?

A

Q

Yes.

And have you had clients testify in

trials over your best advice to not testify?

A All I can say is possibly. I don't

have I can't think of a specific case where

that occurred.

Q Have you ever forced anybopy to not

testify when they've expressed to you that they

wanted to testify?

A

Q

A

Q

No.

Would you ever do that?

No.

And in this case, in this trial, if

Mr. Atwater would have told you, I want to

testify, I don't care if you think it's a good

idea or not, would you have let him testify?

A Absolutely.

Q Mr. White, in your years of practi~e --


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I think there was some discussion in your

deposition regarding this -- would you say right

now that in 1998, that it's probably -- in

Pinellas County, anyway, it's the practice of,

you know, most of the judges to inquire upon a

defendant whether he wants to testify or not on

the record during the course of the trial?

A It is my opinion that that is a very

commonplace occurrence these days.

Q Okay. Now, that's in 1998, but

back this was in 1990, was that a practice

that you were familiar with?

A Best answer I can give is that my

recollection is that that was not pr~valent,

where the judge would call a defendant forward

and have a dialogue with the defendant about his

right to testify or not. It may have just been

starting. There may have been some incidents

where that occurred that I was aware of, but it's

nothing like today where it's basically routine.

Q So that having not occurred in this

particular trial wouldn't have been anything

unusual to you at the time in your experience?

A

Q

If it had occurred?

I mean, if it had not; there's nothing


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on the record that, you know, he waived

testifying with Judge Stoutemire.

A

not

It would not have been unusual for me

it would not have been unusual for the

judge in Atwater's case at that point in time not

to have made inquiry directly from the Defendant

on the issues of testifying or not testifying.

It would be unusual today. It was not unusual

back then, if that was the scenario.

Q In fact, do you know at the time did

you feel it was in his best interest to testify?

A My opinion, back then wduld have been

that it would not have been in his best interest

to testify.

Q

A

Why would that be?

Because of the penalty phase

considerations. I think if he had testified

again, I'm assuming it would have been, I didn't

do it or something. I don't know. And I would

not want, you know, the jury to not only think

he's a bad guy for having committed the murder,

but also a bad guy for it being a perjury.

And, you know, another thing,

Mr. Ripplinger, is sometimes you want your client

to be a little bit of a mystery for the jury.


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And if they take the witness stand in cases like

this, you never know what's going to happen, you

know, whether the jury's going to get a favorable

impression or an unfavorable one.

So, you know, those are the kinds of

things that would have caused me, had the

occasion have presented itself, to hope that he

would not testify.

Q Do you have any reason to believe that

you would not have discussed your strategy for

going for a second-degree murder conviction in

the guilt phase with Mr. Atwater?

A I have no reason to believe that that

topic did not come up.

Q Can you recall him ever expressing any

desire for you to not take· that route?

A I do not.

Q If he had expressed to you that he

wanted to testify in that case, what would have

been your procedure?

A I would have discussed with him the

pros and cons of his taking the stand and

expressed my view and listened to him. And if he

was adamant about taking the stand, I would not

have attempted to stop him, you know. I meari,


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it's his right.

Q As I understand this, your theory about

relationships and then the second-degree murder

was you were just trying to express to the jury

that he had some type of a mental state about

this man and his relationship with his Aunt Adele

that caused him to snap and go off into kind of a

rage killing?

A I believe that's the scenario. I mean,

in my heart, I believe that's what happened. So,

yes, I was trying to promote that.

Q I think when counsel showed you the

record, even before the quote that she was

focussing on, right before that it looked like

you were talking .about -- or Mr. Schwartzberg was

talking about relationships, leading into that?

A I see that as we speak, yes.

Q So it would seem like you kept your

theory consistent through the course of the

trial?

A Well, apparently, yeah, started right

out in opening statements. That clarifies

something. And I'm not just trying to speak to

be speaking, but when I say I believe that that

was truly the case, I don't know whether


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Kenny Smith actually physically abused

Ms. Coderre or not, but I believe that my client,

Atwater, believed that. There's no question in

my mind that Atwater thought that was happening.

Q

A

you know.

Q

A

That's something you recall?

So it was kind of an honest defense,

Is that something he told you?

Yeah, I'm sure of that. Yeah. He may

not have said that's why he killed him -- I'm not

sure he even told me that he did kill him -- but

I'm sure he told me that he viewed that as an

abusive relationship.

Q At any time did he ever express

anything that he was acting -- you know, acting

in self-defense or anything like that?

A I recall nothing of that nature, no,

sir.

Q And would it be fair to say that

Mr. Smith would have been physically no match for

Mr. Atwater because size and age considerations?

A I don't know that much about Mr. Smith.

He was older, but that would be kind of -- I

think, to be honest, I'd be a little bit

speculative. Maybe the guy was a professional


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boxer or something, I don't know -- meaning the

victim. I don't know.

MR. RIPPLINGER: No further questions,

Your Honor.

THE COURT: Thank you. Any redirect of

this witness?

MS. DRESSEL: Yes.

THE COURT: Okay.

MS. DRESSEL: Just a few.

REDIRECT EXAMINATION

BY MS. DRESSEL:

Q Mr. White, would you agree with me that

whatever theory you started the case with, the

relationships, that was not the theory that you

ended the case on, that you closed with in

closing remarks?

A I don't agree with that.

Q You believe that the theory of

relationships was consistent throughout,

opening to closing?

A I think so.

from

Q And that the State -- the excerpt that

I had you read from the closing, that this is

second-degree murder, this is an act of a

depraved heart (sic), that that was consistent


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with whatever theory you were starting the case

with in opening statement?

A

Q

I believe.

Do you recall the night before trial

showing Mr. Atwater some gruesome crime scene

photos and saying something along the lines that,

let's just settle this, concede -- let's end the

trial and concede guilt?

A I don't recall that.

Q Do you recall ever passing your client

notes during trial -- or the client passing you

notes during trial and saying, I don't want any

more notes?

A Me saying that I don't want any more

notes?

Q Or Mr. Schwartzberg. Or at any point

before or during trial saying, I've heard enough?

A

Q

I don't recall that.

Isn't it true that Mr. Atwater wasn't a

problem client because you made all the decisions

for him and that because he was inexperienced and

young that he just blindly followed the advice of

you and Mr. Schwartzberg?

A He was not a problem client because he

never was physically aggressive towards me, never


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yelled at me. He never gave me a hard time. He

just was kind of at a flat personality, and

was I thought he behaved well. I mean --

Q Mr. White, you just testified to

Mr. Ripplinger that had you had he wanted to

testify -- did you want him to testify, I believe

is what was Mr. Ripplinger's question to you was,

and you said, I don't know, if he would have

testified, he might have said I didn't do it or

something?

A

Q

Correct.

You said, I don't know, ·and that leads

me to believe that you never really talked to

your client, that you didn't want hi~ input and

his right

MR. RIPPLINGER: Object to the form of

this question. It's argumentative.

THE COURT: Overruled. Go ahead.

BY MS. DRESSEL:

Q Did you have any input with the client?

Because it seems that that statement, I don't

. know whether or not he wanted to testify, that

would be an important consideration before trial

that you would know. And you said that's

something standard that you would discuss with


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your client.

A

Q

Right.

And the fact of that you don't know --

this was your case, as you said, you were lead

counsel, but you don't know whether or not he

wanted to testify, correct?

A He never expressed to me a desire to

testify that I recall.

Q And you don't recall?

A

Q

A

That is what I'm saying.

And he never told you that he did it?

Well, you know, I can't ·remember, to be

honest with you.

he did.

I'm sorry. But I don't think

Q If a client says that he doesn't --

that he didn't do it, which you had previously, I

believe, on my direct stated that you did not

recall him conceding guilt, but if a client does

not concede guilt, at what point would you usurp

or decide to go in another direction and then go

ahead and concede it?

Would that be an error? Would you

agree that that would be -- that it's the

client's choice whether or not --



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object. This is a compound question. It's

run on to several other things. I don't

know how he can possibly answer that at this

point.

THE COURT: See if you can break the

question down so it can be answered.

Sustain the objection.

BY MS. DRESSEL:

Q Would you agree that it's the client's

decision whether or not to concede guilt?

A I do.

Q One more question, Mr. White. During

the colloquy after the State has rested, the

judge recesses and on the record it ~ays

something to the extent, now we will discuss

whether or not the defense will rest.

What occurred during that recess, if

you can recall?

A Well, something occurred. There had to

be a discussion involving myself and Schwartzberg

at a minimum, and in all likelihood, the

Defendant as well. That's all I can tell you. I

don't think I would have said that statement to

the Court and then gone outside and had a Coke or

smoked a cigarette. I think we huddled together.


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That's what I think probably happened.

Q That is exactly, I believe, what

Mr. Atwater remembers is that.

that you don't --

And you're saying

THE COURT: Whoa, whoa. Let's no·t

testify. Let's ask questions.

BY MS. DRESSEL:

Q You don't recall having a cigarette and

talking about other things, other than whether or

not he wished to testify?

A I mean, I can't in my mind picture

us -- or, actually, I don't have a recollection

of anything that took place, I'm just saying that

if I told the Court we wanted some tjme to

reflect on our strategy at that point, that I

assume we strategized.

that.

But I don't remember

Q Do you recall ever making a statement

to the client that if he chose to testify, that

you would lose first and last closing argument?

A I would have never made that statement,

Miss. So I deny making that statement because

that statement's false.

MS. DRESSEL: Okay. Thank you.

THE COURT: Any recross?


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RECROSS-EXAMINATION

BY MR. RIPPLINGER:

Q In the criminal trial, at some point,

either in a trial or even in the course of your

representation, do you make a determination on

whether a client wants to testify or not?

A

Q

Yeah, at some point. Sure.

I mean, do you believe you do that in

all cases, have done it in all cases?

A

Q

Yeah, that's a fair statement.

Do you have any reason to believe that

you didn't, you know, have that satisfied between

you and Mr. Atwater in this case?

A

Q

No.

Okay. One thing that was -- I think

you alluded to it in your testimony, I'm told

it's been added to one of the claims here. In

your course of representing Mr. Atwater, would it

be fair to say that I was the principal

prosecutor that you had interaction with with the

State Attorney's Office?

A Who was the other one? Then I can

answer.

Q Ron Smith. Ron Smith is what we call a

second chair, though?


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A

Q

Yeah.

It was assigned to me. If you needed

to get something or have a decision made, you

would deal through me, not Ron?

A

Q

trial?

A

Yes.

Okay.

Yes.

Ron was just helping me do the

Q And so, if there would be any kind of

plea discussions or anything, I would probably be

the first person you talked to?

A Correct.

Q And isn't it true that during the

course of that case, I never made -- on behalf of

the State Attorney's Office, never made one offer

to you for Mr. Atwater to plead to?

A

Q

I believe that's correct, yes.

Would it be fair to say that I

maintained throughout the course of that

prosecution that we were only seeking the death

penalty?

A Yes, that's true.

Q And you never had a conversation with

anybody else in my office to the contrary?

A That's a fact.


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Q So, apparently there's been some claim

that there was -- an offer was not communicated

to him. The fact is there was no offer to

communicate, correct?

A That is accurate.

MR. RIPPLINGER: Thank you.

THE COURT: Okay. Thank you,

Mr. White. You may step down.

THE WITNESS: Am I excused for today?

I've got some other things here.

THE COURT: Any reason why he cannot be

excused at this time?

MS. DRESSEL: No.

THE COURT: You're free to go. Folks,

we've been going almost an hour-and-a-half,

not just on this hearing, so we'll take a

brief recess until 3:05.

Is Mr. Schwartzberg the next witness?

Okay. We'll take this time to get focussed

on the questions you want to ask.

come back at 3:05.

We'll

(THEREUPON, A BRIEF RECESS WAS TAKEN.)

THE COURT: Call your next witness.

MS. DRESSEL: The defense calls Michael

Schwartzberg.


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THE COURT: Okay.

THE BAILIFF: Stand here, face the

clerk.

THEREUPON,

MICHAEL SCHWARTZBERG

50



THE BAILIFF: Have a seat in the

witness box.

DIRECT EXAMINATION

BY MS. DRESSEL:

Q

A

Good afternoon, Mr. Schwartzberg.

Good afternoon.

Q Nice to see you again. You represented

Mr. Jeffrey Atwater in 1990; is that correct?

A That's correct.

Q How many capital cases were you

involved with prior to that date?

A Involved with or had I tried?

Q

A

Either.

Jeff was my second capital trial. I

think that we had a couple going at that point in

time, also.

Q Had you -- in the first trial, was

anyone on death row on the first trial that you


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were involved with?

A Got a life recommendation.

Q Did you ever make a representation that

you and Mr. White never had a client on death

row?

A Did I? I don't remember ever making a

representation like that. Of course, if I would

have, at that point in time it would have been

true. Jeff was my first death recommendation.

Q Do you recall making a representation

to Mr. Atwater that your office -- you share an

office with Mr. White; is that correct?

A I believe at that point in time

John White and I had a corporation, Schwartzberg

and White, P.A.

Q And is your testimony, then, that as

far as you know you never made a representation

to Mr. Atwater that your firm, your office, never

had a client on death row?

A That's correct, to the best of my

recollection.

Q Did you inform your client that this

was your second capital trial?

A

Q

I don't remember.

What it would important to you to let


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the client know that this was only your second

capital murder case?

A Maybe. I mean, it wasn't my second

trial. I waited five years before I started to

do capital cases, so --

Q Would it have been important to

you or let me rephrase that.

Would it have been standard practice

for you to inform a client, this is my second

capital trial?

A I really can't answer that_ question.

don't recall ever making that representation or

anything along those lines -- and I didn't

consider myself to be a novice but I may very

well. I know my first client, I told him it was

the first time I'd ever tried a capital case,

but

Q What was your impression of the case?

Did you feel that it was a strong case, a weak

case? What was your initial review of the case?

A As far I know, the first time I read

through all the discovery and everything, I felt

there was at potential for this being a true

death case. So, accordingly, I believe that the

State had, in my initial review of the evidence,


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statements, evidence which could allow a jury,

first of all, to find that Jeff Atwater were

guilty of first-degree murder; and secondly, if

they found that he was guilty of first-degree

murder, that they possibly could consider and

recommend a death sentence.

Q Did you discuss that with the client

before trial?

A

Q

Definitely.

How many times did you discuss it with

the client?

A I can't tell you how marty times I

discussed it with Mr. Atwater. I can tell you

that my standard practice now -- and granted,

I've done more than two -- is I don't, first of

all, make an evaluation until after I've

completed taking all the discovery.

At which point in time, I tell my

client, this is what I believe the State has,

this is what I believe your risks are, this is

what I believe we may be able to do. And the

decision lies in their hands.

Q Do you recall that the client wished to

testify in this case, or whether or not he wished

to testify in the case?


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A I do not recall.

Q Do you recall ever having a discussion

about him testifying in the case?

A Do I have an independent recollection?

Again, the answer to that is no, I do not recall

having a discussion with Jeff about that. But at

the time that we would have either put testimony

on, rested or done whatever, we would have had a

discussion about that.

Q Would you agree that any legal theory

that you might have had in the case would not

prevail over the client's wishes to testify? Let

me go back.

A Okay. I know that my cliept has an

absolute, constitutional right to testify and I

cannot keep a client who desires to testify off

of the stand. I can try to persuade him

differently, but if he decides that he wants to

testify, ethically and legally, he must testify.

Q Do you recall discussing those

constitutional rights with Mr. Atwater?

A Independently recall that, the answer

is no. Standard practice was, without question,

that that was something that was discussed with

my client. I did it from the time I started


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trying cases and I do it on a daily basis with my

clients.

Q Do you recall at trial the portion

where the State rested and there was a short

recess to discuss whether or not the defense

would rest or be calling any witnesses? Do you

recall what transpired during that recess?

A The answer is I do not have an

independent recollection. I can give you my best

guesstimate of what took place, but I do not have

an independent recollection.

Q Do you recall talking-~ having a

cigarette with Mr. Atwater during the recess?

A

Q

I do not recall that.

You don't recall talking about baseball

and things of that nature?

A No, I do not.

Q When the recess -- when you came back

from the recess, why in the record is there no

colloquy or acknowledgement of the client's

waiver then stated on the record?

A The answer to that is I believe the

people of the State of Florida and the Court have

a requirement to make that inquiry of my client.

The only time that I believe that I would do


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something is if my client wished to testify

opposite to my desires or my advice, at which

point in time I would probably advise the Court

of that.

Other than that, the Court's failure to

make that colloquy or the State's failure to

inquire may, in fact, at some point in time give

my client a new trial.

Q Did Mr. Atwater give you any reason to

believe that if he were called as a witness in

his own behalf that he would tell anything other

than the truth?

A The answer is I can't answer that, and

I usually don't make that type of a judgment

call. I mean, I would tell my client that, okay,

you want to testify to this, let's talk about

what the people of the State of Florida will do

in cross-examination, et cetera.

But as far as whether or not my client

was going to get up there and blatantly lie,

that's not a judgment that I make.

Q Do you recall that Mr. Atwater told the

detective in the case and Dr. Sidney Merin that

he was not guilty and, in fact, had found the

body at issue in the case?


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A

have

As far as what he told Dr. Merin, I

again, I don't remember either one of

those things, and I certainly don't remember what

was contained in discovery. I have not had an

opportunity to review it because after the trial,

Mr. Atwater requested all materials in our

possessions, which were sent to him. So I have

not reviewed anything.

Q Would it be fair to say that this was

your case, that you were lead counsel on this

case and the decisions of strategy and steering

the case were yours?

A Guilt phase, yes.

Q Would you agree that you are a very

take-charge sort of attorney?

A Yes.

Q And that any input a client might have,

you would consider, but it is -- you're basically

making decisions unless there's something

critical that a client presents to you?

A I wouldn't go that far. My client's

it's my client's life, it's my client's decision.

And so, obviously, I would advise him. I would

tell them if they were acting contrary to my

advice, but as long as the decisions were


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something that was supportable .by law or capable

of being supported, I would defer to my client's

decisions.

Q Do you recall -- I'm sorry.

A Go ahead.

Q Do you recall before trial having

Mr. Atwater present you with some notes that he

had written and ask that you would follow up or

look into certain issues?

A I don't recall that.

Q Okay.

A I'm not saying that it did not happen.

Q Again, would you agree that it's the

client's right to testify in his own behalf?

A Absolutely.

Q Did Mr. Atwater ever concede guilt to

you?

A I can't answer that except for the fact

that I normally do not ask. It's not my concern.

And I usually tell my clients -- my standard

practice is that it's not a question of whether

or not you did or you did not do, it's a question

of whether or not the people of the State of

Florida can prove that you did, and my job is to

evaluate and advise you of your options.


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Q Okay. Again, I'm going to read from

our amended motion to vacate sentences, Page 17,

Number 2, closing argument.

familiar with --

I believe you're

A Is that the document I saw before the

hearing?

Q This is an excerpt from your closing

argument.

A Correct.


object to the motion being used in lieu of

the actual record. It doesn't have enough

for these gentlemen to properly refresh

their memory and put it in cont~xt.

THE COURT: I'll overrule it. If this

portion is not adequate, we'll pull out the

original transcript.

question.

But you may ask your

MS. DRESSEL: Thank you, Your Honor.

BY MS. DRESSEL:

Q Do you recall making a closing argument

in this case?

A Yes, I do.

Q And do you recall that the theory of

your case had somewhat shifted or changed from


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opening to closing statement?

A The answer to that question is that I

can't answer that one way or the other. I have

read both the excerpts from t~e opening statement

and the excerpt from the closing argument, and I

don't know if that excerpt is from my actual

closing or from my rebuttal, so I can't tell you

that. And I can't tell you whether or not our

theories changed.

Q Okay. Did you discuss, to the best of

your recollection, what would be said in closing

with Mr. Atwater?

A In general terms, I believe that I did,

but I do not have an independent recpllection of

doing so. My standard practice, of course, would

be to tell my client ahead of time, hey, this is

where we're going; if you have anything that you

disagree with, you need to let me know.

Q Would you agree with me that it would

be a significant issue of whether or not you were

going to concede a certain level of guilt during

closing argument, that you would be arguing for

second-degree murder in this case?

A Can you rephrase that question, ask it

again or


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Q Let me just read to you part of the

excerpt. This is an act of a depraved mind

regardless of human life again, this is your

closing done out of ill-will, spite, hatred or

an evil intent. It is the only verdict that you

can return and do what you're sworn to do.

Would you agree with me that asking the

jury to return a second-degree murder verdict in

this case was something that you should have

discussed with your client?

A Probably, yes. I would say that

conceding guilt is something that ·we probably

discussed, and I should have discussed with Jeff.

Q But to the best of your recollection,

you don't recall those conversations with

Mr. Atwater?

A All I can tell you is that from the

time that we started to represent Mr. Atwater in

this case, Mr. White and myself, I do recall that

the relationships of the various people, his

aunt -- I recall some of the statements

concerning the relationship and motivations.

So, did I discuss whether we were going

to go for a second-degree murder as opposed to a

finding of not guilty, I can't answer. I don't


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have an independent recollection, but my standard

practice and policy would have been -- and still

is -- to discuss all options with my clients

prior to the time that we go forward.

I'm not one of those guys that believes

in taking my client and beating them into

submission. I don't do that. I will advise them

of what I believe their best interests are. And

as long as my client takes a position that is

supported by the law and by the facts, and it is

not opposite or contrary to what I believe,

ninety-five percent of the time, I believe I

would adhere to the wishes of my client.

Sometimes I believe that I have to act

in what I believe to be my client's best interest

in order to -- especially in a capital case --

save their life.

Q Would it be the case that if the

Defendant does not concede guilt, that you would

ever then concede it on his behalf during a

closing statement?

A

Q

Okay, ask me that again.

I think you know where I'm going with

this, but let me try to make it clear.

A I have done that before. I have


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represented an individual that in the seven

months that I represented him, he said six words

to me. I would speak to him, I told him exactly

what my theory of defense was going to be, what I

believe to be in his best interest.

And him not voicing any objections led

me in opening argument to concede that my client

was guilty of third-degree murder, and that was

the way that we proceeded throughout the entire

course of the trial.

Did my client tell me that he wanted to

concede guilt? The answer is he did not. But at

that point in time, after numerous discussions,

we, being his attorneys, took the coµrse of the

defense which we believed to be in my client's

best interest as supported by the law and by the

facts.

Q But isn't it also your testimony that

you just said you don't ask the client whether or

not -- you don't have a discussion of guilt or

innocence with your client; is that fair to say?

A That's correct. I have a discussion

with my client concerning this: I have now taken

all of the relevant depositions and reviewed all

of the relevant evidence and all of the rele~ant


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police reports, and this is what the people of

the State of Florida, in my humble opinion, are

going to be able to establish during the course

of trial.

In order for us to effectively combat

what the people of the State of Florida are going

to argue during the course of the trial, we have

Option A available to us, Option B available to

us, Option C available to us. Let me tell you

the relative merits of each of the various

options.

And hopefully, at that point in time,

my client will add some input so that we can come

to a determination as to which is th, best option

for us to pursue during the course of the trial.

Q What was Mr. Atwater's desire in this

case? What were his wishes; do you recall?

A The answer to that question is I

believe originally Jeff told us that he did not

kill Kenny Smith. And, again, it's off the top

of my head. And I recall because there were some

discovery that we performed concerning some

statements that he made to us about potential

alibis or places that he was at the time the

crime was committed that we followed up on. So,


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I mean, that's the best that I can recall.

Q If the client stated that he was not

guilty, then why would you concede guilt in

closing argument?

A Well, I think that sometimes we argue

in the alternative, which may not be the best way

in the world to argue that a client is not

guilty; however, if you believe that the evidence

discloses -- has proven beyond a reasonable doubt

that the client is guilty, then the only thing

that he is guilty of is X or Y.

Q Let me just read this to you again and

see if what you just stated is consistent with

what your closing, which is, This istan act of a

depraved mind regardless of a human life, done

out of ill-will, spite, hatred or an evil intent.

A Let me put it this way: I can tell you

this that I recall -- and as I say, I've done a

lot of capital trials since that point in time.

But I can tell you at the time that I argued

and I think what you're reading from is my

rebuttal argument.

Because after every argument was made,

including the argument of the state attorney at.

that point in time, I believed that we argued


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what was in our client's best interest, knowing

what we had coming up with Dr. Merin.

And I may very well at that point -- I

know I stood up there with the photographs in the

closing arguments. I have a independent

recollection standing up with the photographs in

front of the jury, saying, if this isn't an act

doing evil, malice, what is? And by definition,

that's second-degree murder. But that was my

rebuttal argument.

Q Do you recall before trial showing

Mr. Atwater some gruesome sort of 'crime scene

photos?

Probably. A

Q And further, stating to him something

along the lines of, let's not go to trial, let's

concede guilt and go on to the penalty phase?

A Would I have said that to him? The

answer is I've never in forty-nine trials pled a

client straight up to first-degree murder and

gone into a penalty phase except in one trial

where it was necessary to get certain evidence

out and keep certain evidence from the jury.

I pled my client in the in the middle of the

trial.


And

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So, I don't believe that I would ever

had that discussion. Certainly, at that point in

time in my career I would not have said, hey,

let's plead and go to a penalty phase. So I

don't recall that conversation.

Q You did testify today that you do

recall Mr. Atwater stating that he was innocent,

that he was not guilty?

A Yes.

Q And did you then tell the Defendant

that if he chose to testify, that he would lose

first and last closing arguments in the case?

A Absolutely not.

Q How often did you communicpte -- and I

think you answered this in part, but how -- how

would you characterize your relationship with

Mr. Atwater?

A That's a tough question. I'm

notoriously not a hand-holder. In other words, I

don't spend untoward amounts of time with my

clients telling them that they're wonderful

people or whatever.

represent them.

We don't become friends. I

So I can't answer that question. I had

an attorney/client relationship with


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Jeff Atwater.

Q Would you agree, then, that your

communications with Mr. Atwater would be somewhat

limited maybe compared to some other attorneys?

A Probably.

Q Mr. Schwartzberg, are you presently on

probation for anything?

A Yes.

Q And what would be the nature of that

violation?

A A civil client whose case got put on

the back burner and the Bar said that I failed to

diligently put forth his case. And I admitted to

it and agreed to the discipline.

Q And the nature of that charge, to

clarify, would be along the same lines of failure

to communicate with a client?

A I don't believe that's what it was. I

don't recall. The gist of it was that I had a

civil client and his case didn't get prosecuted

as quickly as he wanted it to. And that was the

first -- I was the first person to admit that was

the case.

MS. DRESSEL: No further questions.

Thank you.


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THE COURT: Okay. Mr. Ripplinger, you

may inquire.

CROSS-EXAMINATION

BY MR. RIPPLINGER:

Q How long had you been practicing

before trying Mr. Atwater's case?

A Six years.

Q Now, you mentioned this was your

capital trial?

Correct.

law

second

A

Q Okay. How many other criminal trials

had you done, you know, prior to that? Just, you

know, ballpark it.

A In those six years, probab~y fifty

criminal jury trials.

Q So was the concept of picking a

strategy to go on, you know, or if the client

testifies or not, were those things you had been

through many, many times?

A

Q

I was not a rookie.

And had you had, you know, procedures

that you were -- that you would go through in

every single case?

A

Q

Yes.

Whether it was a murder or not?


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Yes. A

Q And would defense strategy decisions

and the decision for the client to testify, would

that be, you know, the kind of decision you make

in every single case?

A Every single case.

Q And have you ever had a case where you

would not have discussed with the client his

options to testify or not?

A Absolutely not.

Q And would you -- you know, other

than well, have you ever had a ·case where you

have not at least explained your strategy·to your

client, you know, prior to and durini trial?

MS. DRESSEL: Your Honor, I'm going to

object to reference to other cases.

not relevant.

It's

THE COURT: Overruled. Go ahead.

THE WITNESS: Absolutely not.

BY MR. RIPPLINGER:

Q Even the.guy that said six words to

you, you're telling him what's going on, right?

A

Q

Absolutely.

Do you have any recollection -- well,

first of all, you know, in terms of your


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relationship with Mr. Atwater, while you didn't

become a personal friend of him, I guess, did you

have any communication problems with him?

A Not to the best of my recollection.

Q So it wasn't like the six-word guy?

A No, absolutely not.

Q If you asked him a question, he'd

answer it and you'd answer back to him?

A Correct.

Q Was there any hostility in your

relationship?

A The only time that I recall

Jeff Atwater saying anything of a negative

fashion was right before he was sentenced by

Judge Stoutemire. At which point in time,

Judge Stoutemire asked him if he had anything to

say, and his words were that these guys didn't

represent me worth a damn, or something to that

extent. But up to that point in time, there had

been nothing negative that I can recall.

Q Had he ever, during the course of the

guilt phase, express any kind of complaint with

you trying to get a lesser-included offense?

A

Q

No, sir.

Would you have explained your strategy


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to him?

A I believe that I -- I believe that I

did, and I believe that I would have.

Q Okay. And before resting your -- or

announcing that you're resting or not putting on

a case, did you or would you have had a

discussion with him about whether he wanted to

testify or not?

A Most definitely.

Q And if he would have told you he wanted

to testify, you told him you didn't think it was

in his best interest, but would ydu have allowed

him to testify?

A The answer is I would have let him

testify. He had an absolute right to testify and

I would have complied with that.

Q And whether Judge Stoutemire inquired

of him on the record or not, were you satisfied

that your client knew he had a right to testify

if he wanted to before you closed your case?

A I don't have an independent

recollection. All I can tell you is that based

on my experience then -- and which continues to

today, I don't believe that practice has ever

varied from day one -- I felt comfortable that


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Jeff Atwater knew what his rights were concerning

his ability to testify.

Q Have you had clients testify over your

recommendation to not testify?

A Yes.

Q You mentioned you had a case where the

strategy was to plead a guy mid-trial?

A Correct.

Q And go to a penalty phase?

A Correct.

Q That worked out to your client's

advantage in that case, didn't it?

A Most definitely.

Q In choosing the strategy tp go for

second-degree murder in this case, would it be

fair to say that you were trying to save his

life?

A Most definitely.

Q Trying to save his life in the face of

what probably would have considered a very

strong, if not overwhelming, State case?

A Okay. You can characterize it as that.

I felt that it was a very strong State case and

the potential for a death recommendation was very

real.


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Q And did you feel that some of the, you

know, callous statements that he made, such as,

you know, I wish he was alive again so I could

kill him again, saying that he enjoyed it, would

be problematic for you in a penalty phase?

A

Q

Yes.

So one of your strategies would be to

avoid having a penalty phase?

A Oh, definitely. If I can come in with

anything less than first-degree murder, I don't

have to worry about Mr. Atwater sitting where he

is now, and that being on death row.

Q And you had a psychiatrist examine him

and, basically, would it probably be fair to say

that you probably didn't feel you had any viable

insanity defense on your part?

A That's a fair characterization.

Q And based on the discovery that you and

Mr. White engaged in and the way the body was

found and the nature of the wounds, nine stab

wounds to the back, is it true that you didn't

think that a self-defense would not be a credible

defense before a jury?

A There was some real concerns whether

self-defense or justifiable homicide were


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possible defenses.

Q Did he ever tell you that Kenny Smith

attacked him?

A I can't recall.

Q And also, did you feel that an alibi

defense would not be credible?

A I believe that there were some concerns

that we had concerning his statements to us as to

potential alibis that we evaluated and found

would have been not in his best interest to put

forward before a jury.

Q Have you ever told a criminal client,

or Mr. Atwater, that he didn't have a choice

about testifying?

A

Q

No.

It would be your -- from your

communications with Mr. Atwater, and as well as

having the benefit of having some psychiatric

assistance in the case, that he had the ability

to understand the things that you would be

telling him during the course 0£ the trial?

A Oh, definitely. I didn't believe he

was ever incompetent.

Q And I'm -- well, you're not aware of

Mr. Atwater making any contrary statements t6


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Mr. White about testifying, are you?

No, I'm not. A

Q Are you not aware of him making any

contrary statements to Mr. White about your

choice of strategy?

A No, I'm not.

Q And you're not aware of any kind of

personal problems between Mr. White and

Mr. Atwater?

A

Q

No, I'm not.

Did you feel it was against his best

interest to testify in this particular case?

A I can't answer that because I don't

recall what it was that, if we would have put

Jeff on the stand to testify, which way we would

have been going, whether it would have been an

alibi or he didn't do it. I don't recall, so I

can't answer that.

Q Was he looking a little less clean-cut

than he does at the time?

A Definitely.

Q Longer hair, looking kind of like a

Charles Manson kind of guy?

A I don't know about that. He did have a

goatee.


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MS. DRESSEL: I'll object to that.

THE COURT: Overruled.

BY MR. RIPPLINGER:

Q Would you have had some concern about

his appearance and demeanor on the stand?

A ·I had concern about that just sitting

in the courtroom.

Q In the course of your and Mr. White's

representation of Mr. Atwater, would it be fair

to say that I was the primary prosecutor that you

dealt with?

A

Q

A

Q

A

Q

Yes.

On all matters of the case?

Yes.

Mr. Smith was basically assisting me?

Yes.

And if you had to go for a decision in

the case or anything, you would go to me?

A That's correct.

Q Okay. And isn't it true that during

the course of that prosecution that I never once

approached you or Mr. White with any type of

desire to give you an offer to plead in the case?

A I certainly don't recall you ever

coming and saying, hey, if he wants to plead~


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we'll take a plea.

Q Is it fair to say I was consistently

saying that I thought he should receive the death

penalty?

A Always.

Q And I sought no offer from you or

anything?

A That's correct.

Q And so if there was a representation

that you did not communicate a plea offer, there

was there was none to give?

A Certainly had there been a plea offer,

I can assure you that I would have relayed it to

Mr. Atwater. But I can tell you, again, that my

standard is -- having done over forty-five of

these now that I will tell my clients, listen,

you know, if you want me to take your life, offer

it to the State in this particular case -- and I

have taken consecutive life offers to the people

of the State of Florida I will be happy to do

that, after I give them my evaluation.

But never has the State come to me and

said, if your guy will plead because if they

did, then I would argue that to the jury; State

thinks it's a life case, so should you.


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MR. RIPPLINGER:

further questions.

I don't have any

BY MR. RIPPLINGER:

Q Well, let me just show you one thing

just to -- I'm going to show you the petition for

award of attorney fees. Right here in

Paragraph 1, when does that reflect that

Mr. White would have been first appointed?

A

Q

Fifteenth of December, 1989.

After that, you would have gotten

discovery done, depositions and all the things

leading up to trial?

A Correct. If I remember correctly, the

Public Defender's Office had already scheduled

depositions in this case, and shortly after we

were appointed -- as a matter of fact, I think I

spent the first day-and-a-half immediately after

getting discovery, reading through it, because I

think the depositions were like within a week

after we got appointed, so I wasn't into the

depositions unprepared.

MR. RIPPLINGER: Thank you.

THE COURT: Any redirect?

MS. DRESSEL: Yes, Your Honor.


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REDIRECT EXAMINATION

BY MS. DRESSEL:

Q Mr. Schwartzberg, isn't it true that

you took depositions in the case before trial

without speaking to the client?

A I can't answer. I know I took

depositions, whether I spoke to Jeff before I

took the depositions or not, I don't know.

Q Were you aware that this was the first

trial for Mr. Atwater?

A

Q

I don't know what you mean by that.

That this was the first 'trial he had

ever personally been involved in.

A I can't answer that. I dop't recall.

Q Isn't it true that he was young and

fairly uninformed because, as you stated, that

wasn't your sort of nature, your style, to, you

know, hold hands and that he basically just

followed your advice, your direction; there

wasn't a lot of discussion in the case?

A The answer to that question is -- was

he uninformed? The answer is one of the first

things that I do with the client, usually, is to

say to them, this is the way that a trial's going

to go, if we find ourselves in a trial. So they


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understand how the procedure is.

As far as did he follow my advice, I

certainly hope he followed my advice. And I hope

that he followed my advice because when I gave it

to him, it was well reasoned, well thought out

and based upon the law and the evidence that were

in my possession at the time that I gave it to

him. So, if he followed it for that reason, then

I did my job. If he followed it because of the

fact that he was blind, I don't believe that to

be the case with Jeff Atwater,

Q Would you agree that Mr. Atwater's

appearance at trial could have been better, could

have been more a favorable personal appearance?

A You know, maybe a haircut, shorter

haircut; you know, the haircut that he has now.

But that was a personal thing, so --

Q Did you ever suggest that he trim his

beard, get a haircut?

A I think he did trim his beard. And the

answer is that I don't recall if I did that or I

didn't do that. If a client looks really

scraggly, then I may make that kind of

suggestion. But I mean, his beard was trimmed,

it was neatly trimmed. His hair wasn't unkempt


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or anything along those lines.

long.

It just looked

I don't know at that point in time I

could have done anything to change it. I still

didn't change the lack of the -- but I don't know

if I suggested he cut his hair and shave his

beard off.

Q Do you even know that this being his

first trial if he knew that he had the right to

testify? I understand that you said if he would

have asked me, I would have told him what his

legal rights were, but did he have the knowledge

to know that he could overrule your decisions,

that he could present his own positipn in the

case?

A All I can tell you is that· my standard

has been. And after five years, I'm comfortable

that I told my client that the United States

Supreme Court has decided that you have an

absolute, constitutional right to testify. All I

can do is advise you as to what I believe to be

in your best interest.

But if you decide you wish to testify,

I am going to put you on the stand because the

law says that you must, and I cannot keep you off


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the stand. And we will go through your testimony

as to what it is that you would testify to.

So the answer to that question is I

can't tell you that I did that, but in fourteen

years of doing this, I believe that every single

one of my clients is advised of their right to

testify in virtually the same way that I just put

it to you.

MS. DRESSEL: Okay. Thank you.

THE COURT: Okay. Anything else,

Mr. Ripplinger?

MR. RIPPLINGER: No, Your Honor.

THE COURT: All right. You may step

down. Call your next witness.

MS. DRESSEL: Jeffrey Atwater.

THE WITNESS: Am I excused, Your Honor?

THE COURT: Yes. You're free to go.

MR. RIPPLINGER: Judge, I'll ask

Mr. Schwartzberg to remain~ I don't know

what's going to be said here, but --

THE COURT: Go ahead.

THEREUPON,

JEFFREY ATWATER

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THE BAILIFF: Please have a seat over

here. Watch your step.

THE COURT: You may inquire.

MS. DRESSEL: Your Honor, just before I

begin, I'd like to just say that Mr. Atwater

sometimes has just a bit of a speech

impediment, and if you could just keep that

in mind if you have trouble hearing anything

or need something repeated.

THE COURT: I'm not bashful.

DIRECT EXAMINATION

BY MS. DRESSEL:

Q Jeff, your last name is Atwater,

correct?

A Yes, it is.

Q And could you just spell that for me,

please?

A

Q

A-T-W-A-T-E-R.

And do you recall a case -- the case

that we're here about, your 1990 trial?

A I believe I do, yes.

Q Okay. And this was your first trial

that you were ever involved with; is that right?

A

Q

Yes, I had -- yes, it was.

You had never testified on your own


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behalf before that date; is that correct?

A Not while on the witness stand or

anything. I've stood up before a judge and said,

I'm guilty, but that's as far as that went.

Q So the only experience you had before

1990 was pretrial negotiations or pleadings?

A

Q

Yes.

Okay. Were you aware in 1990 of your

constitutional right to testify?

A Well, I knew I could testify, but

Mr. Schwartzberg and White never made it, you

know, apparent that that's what they wanted me to

do. You know, that they actually they told

Mr. Schwartzberg told me was that it would be our

belief that you should not testify. We do not

want you to testify.

Q Did Mr. Schwartzberg or Mr. White ever

explain to you your constitutional right to

testify?

A No, they did not.

Q Did you have any legal experience up

until that date?

A

Q

No, I did not.

Did you know that you could overrule a

decision by your attorneys at that time?


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A No, I did not.

Q Did you know that you could overrule

their decisions and testify on your own behalf?

A No, I did not.

Q When did you become aware of your

absolute right to do so?

A About two months after I landed on

death row.

Q Who did you -- who did provide with

that information?

A With every attorney I've had since

then, but Mr. Deback is the only one who's ever

done anything about it, has mentioned it to

anything, as far as in a motion or anything.

Q Before trial, did you express a desire

on your own behalf to testify?

A Yes, I did.

Q And what was the reaction of your

attorneys?

A Mr. Schwartzberg himself told me point

blank, well, if you testify, we lose first and

last.

Q And what was their attitude about your

case at that time before trial?

A It was almost as if, hey, you know,


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this guy's guilty, so let's -- why should we put

forth the effort to try to save his -- to try to

get a not guilty verdict. Their entire attitude

throughout the entire course of the

representation of me was, well, we're just going

to try to save your life.

Q You stated that you wanted to testify.

And if you had testified, would you have admitted

guilt?

A Definitely not.

Q Would your testimony have been that you

were not guilty?

A Absolutely.

Q Is that correct? Is it trye that you

told Dr. Merin that you were not guilty, as well

as a detective in the case?

A Yes, I did.

Q As far as you can recall, was there

anything that you did or said that would lead

defense counsel, either Mr. Schwartzberg or

Mr. White, to believe that you would lie on the

witness stand, that you weren't going to be

truthful?

A No, I always maintained my innocence

with them and they -- if I had testified, that's


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what I would have done.

Q At the portion of the trial when the

State rested and a recess was held to determine

whether or not the defense would call any

witnesses, what transpired during that time?

A Well, I got taken out the back door of

the courtroom and put in a little room. Little

while later, Mr. Schwartzberg walked in, offered

me a cigarette. We talked about baseball and how

cute the court reporter was.

Q And what about Mr. White at that time?

A He was -- just basically sat there and

really didn't, you know -- since it was

Mr. Schwartzberg who was handling the guilt

phase, it was basically him doing all the

talking. And we just talked about baseball and

smoked.

Q When you came back to the courtroom and

the defense did rest and didn't call you, why

didn't you then object? Why didn't you say

anything on your own behalf?

A I did not know I could. I was told the

night before the trial, when we get into the

courtroom tomorrow, we are in charge. And

remember that, that we are in charge.


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Q I may have asked you this, but how old

were you at that time?

A I was about twenty-five. Yeah,

twenty-five.

Q Was a trial strategy ever discussed in

the case?

A Not with me. Every time I asked about

trial strategy, I was told by Mr. Schwartzberg,

we don't need to worry about that just yet

because, you know, there's no way we'll be

prepared for the trial at the date it's set. So

we will just go ahead and get a continuance.

Q What about any investigation that was

occurring in the case, if at all?

A There was some. I was unaware of any

being done.

Q How often did you meet with

Schwartzberg and --

A I mostly talked to Mr. White over the

phone. I met with Schwa~tzberg more than I did

with Mr. White, but it was not as often as they

lay claim to. There was times that I had to get

on the phone with them and say, well, when are

you corning up to see me, you know, we need to

discuss stuff.


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Q What was the experience of

Mr. Schwartzberg and of Mr. White as far as you

were told? What did they tell you about their

experience handling capital cases?

A Mr. Schwartzberg himself told me that,

well, I don't have any clients on death row. He

never told me how long he's been an attorney or

anything like that. He just mentioned, well,

don't worry, I don't have any clients on death

row.

Q Did you at any time express a desire to

concede guilt and seek second-degree murder in

the case?

A No. No, ma'am, I did not.

Q Do you recall having discussions with

Mr. Schwartzberg about his closing argument and

conceding guilt in the case?

A There was never a discussion of any

such magnitude about conceding guilt. If there

had been a discussion about conceding guilt, I

would have told them point blank, no, you are not

to do it.

Q Did you speak with the attorneys about

that after closing argument?

A After closing argument, I was put into


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a holding cell and they went out their separate

way and I did not see them again until they

until the jury came back with a verdict.

Q Is it your position that

Mr~ Schwartzberg ind Mr. White did not -- did not

want a trial in this case, that they wanted you

to admit guilt?

A Ye·s, it is. Because the night before

the trial, they came to me in the little visiting

room next to my jail cell, laid out a bunch of

pictures that Mr. Ripplinger was going to show to

the jury. That's what John Thor White actually

said, these are the pictures the jury's going to

see, why don't you just go ahead and walk in the

courtroom tomorrow and plead guilty and let's get

this thing over with.

There was -- he didn't represent it as

a plea offer from the State Attorney's Office, he

just wanted me to go ahead and do this.

Q Okay. And again, the reason why you

didn't object to their handling of the case or

speak up in court or something along those lines?

A I guess at this point I was

shell-shocked at how things were going. And like

I said, I was young, I was probably stupid ahd


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more than just a bit naive. I didn't know I

could stand up in the courtroom and say, hey,

that's not the way I want things to be happening.

I figured if I did that, I would be

held in contempt. Not that it mattered since

what I was facing.

Q Is it fair to say that Mr. Schwartzberg

took control of the case and gave you very little

room for your input?

A Right from the very beginning. I mean,

he took depositions before he even talked to me.

Q Did you know that this was his second

capital case?

A No, I did not.

MS. DRESSEL: Okay. Thanks.

THE COURT: M~. Ripplinger, you may

inquire.

MR. RIPPLINGER: May I have a moment?

(THEREUPON, A PAUSE WAS HAD IN THE PROCEEDINGS.)

CROSS-EXAMINATION

BY MR. RIPPLINGER:

Q Did either one of the lawyers tell you

that it wouldn't be in your best interest to

testify in that trial?

A They 1ust basically said that they


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didn't think that I should testify.

Q So you did discuss testifying in the

case with them?

A Yeah, they told me -- Mr. Schwartzberg

himself told me that if I testify, he would lose

first and third. You know, that you would get to

go first in closing arguments.

Q If you testified?

A

Q

Yeah.

No other witnesses were called on your

behalf, right?

A

Q

A

Q

No.

I rested my case, and then that was it?

That was it.

Okay. And under those circumstances,

you're· telling Judge Gross here that those

attorneys told you that they would lose first and

last?

A

Q

A

Q

A

Q

A

That's exactly what they told me.

How much education do you have, sir?

Finished tenth grade.

Can you read and write?

Yeah.

Could you read and write then?

Yes, I could.


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516 App 192

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Q Okay. And during the course of the

trial, you weren't having any kind of health·

problems, were you?

A

Q

right?

A

No, I was not.

And you were alert the whole time,

Pardon me?

Q You were alert during the whole course

of the trial, right?

A I was more alert than Mr. Schwartzberg

was, yes.

Q So you were listening very close to the

evidence and the witnesses, right?

A

Q

Yes.

And you wouldn't characterize yourself

as a meek, quiet individual, would you?

A That depends.

know, I'm open with them.

I hardly speak to them.

If I know someone, you

If I don't know them,

Q Did you ever have any kind of heated

arguments with either of your lawyers during the

course of the trial?

A Not really, no. The only time I said

something was to Mr. Schwartzberg right before I

was sentenced, told him how dissatisfied I w~s.


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517 App 193

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Q Was that the statement he was

testifying about here today?

A Yes. The reason why I hadn't said

anything before that was -- I mean, you know, I

was aware of what was going on, but I was just

almost to the point where I was hardly believing

it.

You know, as far as him having, you

know, witnesses on the witness stand, asking them

questions, then all of a sudden -- leading up to

a certain area, and then all of a sudden, no more

questions, Your Honor.

Q

A

Q

This was your first trial?

Yes.

But you've been through the criminal

court system before that?

A Yeah, but I didn't know courtroom

procedure.

Q Well, apparently you said you had pled

guilty to charges before?

A Yes.

Q How often had you done that?

A Not very often.

Q But you'd been in front of judges and

admitted your guilt and were sentenced, right?


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518 App 194

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A Yeah. If I did something, I admitted

it.

Q Was that in this county or someplace

else?

A Once here in Pinellas County.

Q And during the course of that, even the

judges told you what your rights were before you

pled in those cases, right?

A

Q

A

As far as I remember, yes.

So

But just because the judge states it,

that does not mean that Mr. Schwartzberg or

Mr. White did it.

Q But you weren't totally un.familiar with

criminal court cases?

A I would have to say no, not totally

unfamiliar. I had a little bit of knowledge, but

not very much.

Q And you knew you didn't have to testify

if you didn't want to?

A

Q

Pardon me?

You knew you had a right to remain

silent at all phases once you were arrested,

right? You knew that?

A Yes.


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Q

A

Up and through trial?

Yes.

MS. DRESSEL: Your Honor, I'm going to

object. He's testified that he was involved

with pretrials, but never a trial situation.

THE COURT: Overrule the objection.

He's answered the question. Go ahead.

BY MR. RIPPLINGER:

Q So you knew that, for instance, I

couldn't force you to testify in that trial?

A I knew you couldn't, yes.

Q Right. And you've already said you

knew you could testify, you knew you had a right

to testify, right?

A Yes, I told Mr. Schwartzberg I wanted

to.

Q Did Mr. Schwartzberg or Mr. White, you

know, tell you that they felt that the State had

a strong case of guilt against you?

A There was hardly ever any discussion

with them about the State's case or defense

theories or anything like that. Any time I

any time I would ask a question about defense

theory, I was told, don't worry about it, we'll

get a continuance; we don't need to discuss that


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stuff yet.

Q Well, you knew your own family members

were going to come in and testify against you,

didn't you?

A Not until, actually, the night before

the trial when I was handed Adele Coderre and

Janet Coderre's deposition. I didn't know who

was going to testify. I had -- I think I was

handed a total of thirteen depositions, but those

were all the depositions that were taken on

December the 19th.

Q So the night before the 'trial, you knew

that your cousin Janet was going to come into

court and, in fact, had already testified in

deposition that you had admitted killing

Mr. Smith and enjoyed it?

A Yes, I knew she lied and said that.

MS. DRESSEL: I'm going to object to

this whole line of questions about witnesses

being called because the issue is whether or

not he wanted to testify.

THE COURT: I'm going to give him some

leeway here. I'll overrule the objection.

BY MR. RIPPLINGER:

Q And you knew there was going to be


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App 197

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testimony, you know, from the police officers

that found you that you had blood on you, right?

A Yeah.

Q And, actually, you'd even admitted to

the police that you had been at that apartment

building that night, Detective Mariani

(phonetic)?

A Do I have to answer that? Because I'm

maintaining my innocence. He's asking me as far

as questions about what I feel are guilt and

innocence issues.

THE COURT: He's asking'you whether or

not you made that statement to the police

officer. Do you recall making that

statement?

THE WITNESS: Yes. Okay. Yes, I do.

BY MR. RIPPLINGER:

Q Okay. So you knew we had some evidence

that looked bad for you, at least?

A Oh, yes, I did.

Q And you knew -- I'm sure your

lawyers -- well, they told you that the killing

was probably gruesome or grizzly or words to that

effect?

A Yeah.


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Q I'm sure they told you that there was,

you know, a strong possibility that, given the

nature of this killing, a death penalty could

result, right?

A Yeah. Yeah, they did.

Q Did they tell you they were trying to

save your life?

MS. DRESSEL: I'm going to object

continuing to object to him going into

issues outside the two we're here on today;

whether he wanted to testify and wasn't

allowed to testify, or whether or not

defense counsel conceded guilt.

think there is an opportunity to

recross-examine Mr. Atwater.

I don't

THE COURT: Correct me if I'm wrong, I

assume you're establishing the nature of the

relationship between this Defendant --

MR. RIPPLINGER: The relationship and

the decision -- the strategy decisions which

we've been talking about all afternoon.

THE COURT: That was the relevance I

perceived, so I will overrule the objection.

BY MR. RIPPLINGER:

Q So it was clear to you that your


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App 199

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lawyers thought it wasn't in your best interest

to testify? I think you've already answered yes

to that.

A

Q

They said that I shouldn't.

Okay. How do you think that your

testimony would have helped you in front of that

jury with the evidence that was presented against

you?

A I think I would have -- I just wanted

to go up there and tell the truth.

Q

A

Which was what?

That I did not kill Kenneth Smith and

that you were trying to convict the wrong man.

Q So it was your position you were

someplace else?

MS. DRESSEL: Objection, Your Honor.

Again, we're here on the issue of whether or

not he wanted to testify.

MR. RIPPLINGER: I mean, if he wasn't

told there's an issue of prejudice. I

want to know what the prejudice was of him

not testifying.

THE COURT: Well, I don't know that

he's required at this point in time to say

exactly what his testimony would be. I


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think he has to show he had the desire to

testify, so I will sustain the objection on

this question.

BY MR. RIPPLINGER:

Q So what defense did you want them to

present for you instead of the partial defense of

second-degree murder?

A That I was not guilty.

.MS. DRESSEL: Objection, that is

irrelevant, again.


answered the question.

BY MR. RIPPLINGER:

I think he's

Q My next question would be: Not guilty

for what reason?

MS. DRESSEL: Objection, again.

THE COURT: I'm going to sustain the

objection. Let's move on.

MS. KING: Your Honor, we're a little

concerned we may be running into some

reversible error if we don't argue some law

at this point. The State filed a

supplemental response as to this specific

issue setting out three cases.

MR. DEBOCK: Judge, are we going to


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complete the testimony? We don't want to

stop in the middle and see what they want to

do.

THE COURT: Just relax. What the State

is suggesting is that they're asking me to

revisit my ruling, that by my ruling that I

made, that somehow impeded the proper flow

of this hearing. So, we're not arguing law

on the ultimate issues here; at least that's

what I'm assuming you're saying.


THE COURT: Tell me why·that ruling is

wrong.

MS. KING: Okay. The case law that I

rely on for that is set out in the State's

corrected response to amended motion to

vacate judgment and sentence; that is the

title of it. It's dated June 1st, 1998.

And it cites three cases, Osorio,

0-S-0-R-I-0, at 676, Page 1363; and

Jackson v. State, 700 So.2d Page 14; and it

cites C. Minton v. State, 702 So.2d

Page 638.

These cases go to -- in fact, one of

them was affirming Judge Khouzam's orde~ of


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App 202

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a summary denial of a motion to vacate for

lack of a showing of prejudice on the issue

of the defendant's right to testify.

The defense is raising today that the

Defendant had the right to testify and was

prejudiced by not being allowed to testify,

and the State is attempting to cross-examine

him on what he's already testified to, on

what he would have said, that he did not

commit this murder, and he did testify in

that manner already.

The State is permitted to cross-examine

him about that to show that there would have

been a lack of prejudice, even if his

testimony is believed over that of the two

defense attorneys. So we would maintain

that we would have the right to go into this

area of the law as to what the Defendant

would have said had he been allowed to

testify, as he claims he wanted to do, as to

what he would have said had he been allowed

to testify.

THE COURT: All right. Let me hear a

response. Basically, the State's argument

is that there's got to be a showing of ~ore


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than just not testifying, but that prejudice

came out of that.

And they're trying to flush out the

issue of prejudice by, you know -- and

again, I'm not sure if it's their

responsibility on cross to do that, or if,

more directly, this is something that should

have come out from you all on the direct and

your failure to do so may ultimately be

fatal to your claim.

So, I'd like some response to that.

Again, we're trying to establish if -- we

know he didn't testify, but what prejudice

inured to him by not testifying,

MS. DRESSEL: Your Honor, let me just

respond by saying on my direct of him, I

said, would it be your testimony that you

were not guilty; he said yes.

THE COURT: Right.

MS. DRESSEL: I believe stating that he

was not guilty would be highly favorable to

his case, and taking the stand or not

taking the stand was unfavorable, was

prejudicial.

I feel we went into that and any


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further explanation as to cross-examination

about details he would have said or

witnesses is completely irrelevant, and it's

not what these cases stand for, prejudice

being -- and I'll let Mr. Debock say

whatever he needs to say, but that's my

position on it.

THE COURT: Okay.

MR. DEBOCK: First thing is, Judge,

I've read this Osorio case that they

continue to cite, and I would ask the Court

to read it. There's two cases. There's

nothing that supports anything that she's

saying.

anymore.

I guess if there is, I can't read

THE COURT: Let me see it because I

don't have it in front of me.

MR. DEBOCK: To say that the client --

as we all know in this case, Mr. Atwater's

already made his statement clear in this

case, that's the exculpatory statement, and

that was, I went in there and found the

body. That's how he got the blood on him.

This is already in the record.

They don't get a chance now to say,


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well, let's cross-examine on a trial run of

what he's going to say if he gets a retrial.

That•s'not the purpose of this hearing. The

purpose is to establish that his attorneys

committed ineffective assistance.

How did they do it? They failed to

allow him to testify by their taking

command, not informing the client, you know,

misleading him; him being unaware. They

took advantage of that and they didn't allow

him to testify.

guilt.

They conceded this man's

Obviously, they knew -- and they've

already testified that he didn't concede

guilt, how could you then concede guilt when

the client did not concede guilt? And he

asked to testify, he didn't know he could

and they prevented him. We know what he's

going to say. He didn't do it. He found

the body, he got blood and he left.

We know there's contrary evidence, but

that's for the jury to decide, not the state

attorney. We're saying that based on the

fact that he would say that and the attorney

didn't allow him to do that, that alon~


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requires a new trial.

The fact that someone is charged with a

crime and they sit there in silence -- as we

all know, it's poppycock. When the jury

doesn't get to hear a Defendant testify, if

they want to -- and he wanted to -- and the

attorney thwarts that, that's grounds us for

a new trial. Also, they conceded his guilt.

How much more do you need when you

don't allow him to testify? And it's not

like he's doing this for the first time,

he's already stated it several times. I

found the body. This is, you know, an

explanation why he's bloody.

if he was still breathing.

He went to see

And then your attorney concedes guilt.

And you don't think that a jury -- there

would be a reasonable probability that the

outcome is undermined in this case? If they

would have heard that and he would have been

able to say, look -- he can get up there and

explain also what the other witnesses said

and why they said he confessed, but that's

not to be decided here.

THE COURT: That's right. You're going


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well beyond here. Anything else, Ms. King?

MS. KING: Judge, just that had the

Defendant taken the stand, obviously, he

would have subjected himself to

cross-examination, and that is the ultimate

question as to whether or not there would

have been any prejudice. Had he taken the

stand and given his version, it's depending

upon what the cross-examination could have

amounted to.

THE COURT: Well, we're not going to

cross-examine him eight years later. Again,

I will sustain the objection and continue

the same ruling. You may proceed,

Mr. Ripplinger.

MR. RIPPLINGER: Judge, in light of the

Court's ruling, I really can't think of any

further questions.

THE COURT: Okay.

MR. DEBOCK: We have no further

questions.

THE COURT: You may step down.

have any further witnesses to call?

MR. DEBOCK: No, Judge.

Defense

THE COURT: State have any further· any


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witnesses that you wish to call?

MR. RIPPLINGER: Judge, any rebuttal, I

think, has probably already been kind of

rebutted already by the two attorneys. So

I'm not going to take any further time of

the Court.

THE COURT: All right. Folks, we're

obviously dealing with some very substantial

and serious issues here, and this is not

something that I want to give short shrift

to, nor do I want you all to give short

shrift to.

What I would propose is that the

defense have -- and I want to hear from you

somewhere between three and four weeks to

file a written memorandum. I don't know if

you want a transcript to be prepared to

assist with that. I'll give the State a

couple of weeks to respond to that, and then

give you all an opportunity for a final

argument.

How much time -- you know, again, I'm

thinking three to four weeks for you all to

do your first memo or brief, whatever you

want to call it. What's your reaction?·


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MR. DEBOCK: As far as the court

reporter, should we request a transcript,

how long would it be?

THE COURT REPORTER: Normal delivery is

seven to ten days.

MR. DEBOCK: We won't get this for ten

days, then we need to review it. I would

certainly ask for -- after I get the

document, I would like four weeks from that

date.

THE COURT: All right. Today is

Octobe~ the -- strike that, September the

11th. You'll have that, let's say, no later

than the 21st. You all will have until

five o'clock on October the 16th to file

your initial brief or first closing, however

you want to frame it.

Mr. Ripplinger, about three weeks after

that?

MR. RIPPLINGER: Judge, basically,

Ms. King can answer that. I think she's

going to be taking over pretty much from

this point.

THE COURT: I think I probably knew

that, I just was looking at the calendar and


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not thinking.

Ms. King, is three weeks enough at that

point in time?


THE COURT: That would mean the State's

response would be November the 6th and then

give you all another two weeks after that

for final briefing. That would be on the

20th of November, okay?

MR. DEBOCK: Judge?

THE COURT: Yes.

MR. DEBOCK: Just to clarify, you want

a closing argument with the applicable law?

THE COURT: Yes. Ms. King just

because I will frankly forget to schedule

what I just announced, would you prepare an

order on that for me


THE COURT: and get that to me? And

that way it will be very clear for

everybody. And then once I have that, I

will try and get you all out an order as

soon as practical. I can't make any

guarantees as to how quickly that will be.

It will depend on what we have here, okay?


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Who did the order transporting

Mr. Atwater down here, the State do that?

MR. DEBOCK: I did one. I don't know

if they did one, as well. I have no idea.

THE COURT: Well, I just want to make

sure -- there's obviously no reason for him

to remain here. I know the jail certainly

does not enjoy having state prisoners down

here.

Madam Clerk, do we need a further order

to return him or can we have a trip ticket

or something?

MR. DEBOCK: Yes, Judge, if you sign

the trip ticket today, that will expedite

it.

THE CLERK: I'll fax it and they'll

also put on there t6 be transported back to

DOC.

THE COURT: Allow him to get back to

more familiar surroundings and make

everybody happ~er. I don't think there's

anything else that we need to address at

this time.

THE CLERK: Do you want a status check

at all on the calendar for this?


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THE COURT: No. We're in recess at

this time.

(THEREUPON, THE PROCEEDINGS WERE CONCLUDED.)

* * * * * * * * * * * * *


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CERTIFICATE OF REPORTER

STATE OF FLORIDA

COUNTY OF PINELLAS

)

)

I, DAWN M. DANTSCHISCH, RPR, RMR, Court Reporter, Notary Public, State of Florida at Large:

115

DO HEREBY CERTIFY that the foregoing proceedings were taken before me at the time and place set forth in the caption thereof; the proceedings were stenographically reported by me in shorthand, and the foregoing pages, numbered 1 through 115, inclusive, constitute a true and correct transcript of my said stenographic report.

I FURTHER CERTIFY that I am not a relative or employee or attorney or counsel of any of the parties hereto, nor a relative or employee of such attorney or counsel, nor do I have any interest in the outcome or events of this action.

IN WITNESS WHEREOF, I have hereunto affixed my official signature this ~6-r_ daytof September, 1998, at Clearwater, Pinellas County, Florida.

-~-'-0')~ --------------------DAWN M. DANTSCHISCH, RPR, RMR Court Reporter Sixth Judicial Circuit Notary Public, State of Florida

538


App 214

STATE OF FLORIDA ) )

COUNTY OF PINELLAS )

I, KARLEEN F. DeBLAKER, Clerk of the Circuit Court for the County of .

Pinellas, State of Florida, do hereby certify that the foregoing pages ONE

through FIVE HUNDRED THIRTY EIGHT, inclusive, contain a correct TRANSCRIPT OF

RECORD in the case of STATE OF FLORIDA, Plaintiff, -vs- JEFFREY LEE ATWATER,

Defendant being Case Number CRC 89-13299 CFANO, Circuit Court, Criminal

Diyision, and a true and correct recital and copy of all such papers and

proceedings in said cause as appears from the record and files of my office

that have been directed to be included in said record in accordance with

Written Directions to me.

WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of

said Court this 20th day of May, A.D., 1999

KARLEEN F. DeBLAKER CLERK OF THE CIRCUIT COURT

BY: bJOYlm4<.bar,~ pu Clerk

* S E A L *

App 215

Appendix H: Affidavit of Jeffrey Lee Atwater, executed April 26, 2019.

App 216

AFFIDAVIT OF JEFFREY L. ATWATER

STA TE OF FLORIDA

COUNTY OF UNION

1. My name is Jeffrey L. Atwater, DOC # 120467, and I currently reside at Union

Correctional Institute in Raiford, Florida. I was the defendant listed in the State of Florida v.

Jeffrey L. Atwater, Case No. 89-13299-K.

2. After my arrest in this case, I was assigned to the Public Defender's Office for the

Sixth Judicial Circuit. Due to a conflict of interest, the Public Defender's Officer withdrew from

my case and I was appointed attorneys John Thor White and Michael Schwartzberg.

3. Less than five months after White and Schwartzberg took over my case, we went

to trial. During those five months, all my contact with these attorneys took place through jail visits

or short phone calls. The attorneys never wrote to me. Both attorneys would see me at the county

jail but Schwartzberg saw me more regularly. There were more phone calls than jail visits. I would

call the office that White and Schwartzberg shared to get updates about my case. During these

phone calls, I always felt like the attorneys were in a hurry and rushing me off the phone.

4. I never went to court for any pretrial hearing. My first appearance was conducted

at the jail. I did not go to court until the day of my trial.

5. During these five months, I would ask both White and Schwartzberg about case

strategy. I wanted to discuss my case. Each time, the attorneys assured me we had time to discuss

strategy later. These visits became more social than focused on my case. The attorneys told me

that the case would not actually go to trial on May 1, 1990 and they would get a continuance. I

was aware that the attorneys filed a motion to continue shortly before my trial date. The day before

trial, I called the attorneys' office to learn the status of this motion. White said there is no way we

were going to trial tomorrow and he was going to speak with the judge about the continuance that

day.

6. The night before trial, both White and Schwartzberg visited me at the county jail

around 8:30 or 9:30 p.m. The attorneys said they were ready to go to trial tomorrow morning. I

was shocked because just a few hours before the attorneys told me they were going to get a

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continuance. During this visit, the attorneys laid out in front of me lots of pictures of the victim.

They told me that a jury would see these pictures tomorrow. I believe the attorneys did this to

pressure me into pleading guilty. There was never a plea deal on the table from the State and I

never wanted one. During this meeting, the attorneys did not discuss with me their trial strategy

for any aspect of my case. There were no conversations about conceding my guilt, cross-

examining State witnesses, or attacking the forensic evidence. The attorneys gave me deposition

transcripts for Adele Coderre and Janet Coderre and told me they did not want my extensive notes

about the depositions anymore. The last thing White said to me before leaving this meeting was

to remember that at trial tomorrow, we (the attorneys) run things.

7. When there were breaks during the guilt phase part of my trial, I was placed in a

holding cell behind the courtroom. My attorneys only visited me once in this holding cell. This

occurred immediately after the State rested. During this one meeting, the attorneys did not discuss

anything about my case. Again, this was a purely social visit.

8. The first time I learned that White and Schwartzberg planned on conceding my

guilt as part of their trial strategy was during the rebuttal closing arguments made by

Schwartzberg. I was shocked. This was never discussed with me before. I did not know what to

do . I did not think I could stand up in court and object while my attorney was speaking to the jury.

After the closing arguments and during jury deliberations, I was taken again to the holding cell. I

never had the opportunity to speak with my attorneys. I only spoke with my attorneys once

between the guilty verdicts and the penalty phase. At that meeting, I asked why they conceded

my guilt. I was very angry. Attorney Schwartzberg stated that it was his plan all along.

9. On the day of my sentencing hearing, I brought with me to court a prose motion

for a new trial that I hand wrote. I discussed this motion with the judge before he rendered his

sentence. One part of my motion was about how my attorneys conceded my guilt in front of the

jury. Again, I maintained my innocence to the court. The court denied my motion.

10. After my sentencing hearing, I only spoke with White and Schwartzberg one or two

more times. Once I was brought to death row, I wrote to White and asked that he send me my

entire case file.

11. My case was assigned to Florida's Capital Collateral Representative ("CCR") after

my direct appeal was denied by the Florida Supreme Court. At the time, CCR's office was

understaffed and dysfunctional. I was concerned that my appeals were not going to be handled

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properly. I drafted a "pro-bono capital appellate representation" letter. In this letter, I talk about

problems with my case. Part of the letter specifically says that the attorneys conceded my guilt

without discussing it with me first. I then purchased a Florida Bar directory and sent this letter

out to between 100 and 300 attorneys listed in the directory. I received about 50 rejection letters.

The rest of the letters went unanswered. No one was willing to take my case.

12. I have never admitted my guilt to either White or Schwartzberg. I continually

maintained my innocence to my attorneys. The strategy of conceding my guilt in hopes of a lesser

charge or avoiding the death penalty was never discussed with me. If my attorneys had told me

about this strategy beforehand, I would not have agreed to it.

13. I declare under penalty of perjury that the foregoing is true and correct.

/

DATE

ff WORN AND SUB~~RIBED before me this 2((} de re 'f Atwater, who is personally known to me

identification DO C I D . day of April, 2019, by

t/' or presents valid

BRITTANY FAYE BURR Notary Public - State of Florida

Commission# GG 126368 My Comm. Expires Jul 20. 2021 Borded tt,rough Natlor,1 Nctary ASln.

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App 219

Jeffrey Lee Atwater vs. State of Florida - Supreme Court

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