_____________________________________________________________
____________________________________________________________
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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]
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
2 of5
App 003
State v. Jeffrey L. Atwater, 89-13299CFANO
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.
3 of5
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
State v. Jeffrey L. Atwater, 89-13299CFANO
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'
State v. Jeffrey L. Atwater, 89-13299CFANO
(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
Atwater v. State, 300 So.3d 589 (2020)45 Fla. L. Weekly S217
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
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.
App 013
Atwater v. State, 300 So.3d 589 (2020)45 Fla. L. Weekly S217
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
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
Atwater v. State, 626 So.2d 1325 (1993)18 Fla. L. Weekly S496
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment Declined to Follow by State v. Jones, Hawai'i, July 19, 2001
626 So.2d 1325Supreme Court of Florida.
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.
1 Cases that cite this headnote
[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.
6 Cases that cite this headnote
[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.
1 Cases that cite this headnote
[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.
7 Cases that cite this headnote
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Atwater v. State, 626 So.2d 1325 (1993)18 Fla. L. Weekly S496
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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.
2 Cases that cite this headnote
[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.
4 Cases that cite this headnote
[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.
6 Cases that cite this headnote
[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).
3 Cases that cite this headnote
[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).
2 Cases that cite this headnote
[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).
11 Cases that cite this headnote
[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).
3 Cases that cite this headnote
[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.
1 Cases that cite this headnote
App 017
Atwater v. State, 626 So.2d 1325 (1993)18 Fla. L. Weekly S496
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Attorneys and Law Firms
*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
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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.
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
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
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment Distinguished by Smallwood v. State, Fla.App. 5 Dist., February 8, 2002
788 So.2d 223Supreme Court of Florida.
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 Cases that cite this headnote
[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.
1 Cases that cite this headnote
[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.
1 Cases that cite this headnote
[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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[6] Criminal Law Post-ConvictionProceeding Not a Substitute for Appeal
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.
[7] 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 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.
[8] 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 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.
[9] 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 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.
[10] 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 jury and judgeimproperly considered nonstatutory aggravatingcircumstances; such claim should have beenraised on direct appeal. West's F.S.A. RCrP Rule3.850.
1 Cases that cite this headnote
[11] 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 his sentence restedupon unconstitutionally automatic aggravatingcircumstances; such claim should have beenraised on direct appeal. West's F.S.A. RCrP Rule3.850.
[12] 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 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.
1 Cases that cite this headnote
[13] 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 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.
3 Cases that cite this headnote
[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.
3 Cases that cite this headnote
[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.
4 Cases that cite this headnote
[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.
1 Cases that cite this headnote
[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.
6 Cases that cite this headnote
[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.
20 Cases that cite this headnote
[19] Criminal Law Determination
Not all decisions of counsel are reviewable underStrickland as constituting ineffective assistanceof counsel. U.S.C.A. Const.Amend. 6.
1 Cases that cite this headnote
[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.
[21] Criminal Law Admissions or Concessions
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.
13 Cases that cite this headnote
[22] Criminal Law Admissions or Concessions
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.
1 Cases that cite this headnote
[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.
1 Cases that cite this headnote
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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.
3 Cases that cite this headnote
[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.
2 Cases that cite this headnote
[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.
6 Cases that cite this headnote
[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.
Attorneys and Law Firms
*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
App 033
Atwater v. State, 788 So.2d 223 (2001)26 Fla. L. Weekly 395
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 12
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
App 034
Atwater v. State, 788 So.2d 223 (2001)26 Fla. L. Weekly 395
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 13
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.
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
App 035
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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24 ORIGf'NAL 25
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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
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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
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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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INDEX TO PROCEEDINGS (Cont'd)
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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INDEX TO PROCEEDINGS (Cont'd)
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
KANABAY & KANABAY - OFFICIAL COURT REPORTERS
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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
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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
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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
App 052
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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.._...;.;
App 053
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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 . ·'. , .. .,_:.,
App 054
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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,,
App 055
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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
App 056
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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.
App 057
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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 .•
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App 058
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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 -·~·-, '•- /
App 059
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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
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App 060
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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 --
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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
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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
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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
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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 ,,_
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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<'."
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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!
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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 ,,
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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
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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
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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.
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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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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~• ---
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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
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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
2
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
6
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.
THE COURT: All right.
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
10
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
11
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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
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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.
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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 --
MR. RIPPLINGER: Judge, I'm going to
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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,
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50
WAS CALLED AS A WITNESS AND AFTER BEING DULY SWORN ON
OATH WAS EXAMINED AND TESTIFIED AS FOLLOWS:
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.
MR. RIPPLINGER: Judge, I'm going to
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.
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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
83
WAS CALLED AS A WITNESS AND AFTER BEING DULY SWORN ON
OATH WAS EXAMINED AND TESTIFIED AS FOLLOWS:
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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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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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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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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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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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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.
THE COURT: All right.
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.
MS. KING: Yes, Your Honor.
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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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?
MS. KING: Yes, Your Honor.
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
MS. KING: Yes, Your Honor.
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
ROBERT A. DEMPSTER & ASSOCIATES
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
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
Page 1 of 3
App 217
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
Page 2 of 3
App 218
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